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-- Dumping data for table `judgements`
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INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(6, '3Uu01S0pzK6fe17YrGZn8YYW2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicle Act. Tribunal is not bound by charge-sheet in criminal cases . Tribunal has to decide based on evidence when prima facie fraud is alleged. Karnataka High Court.', '<p class=\"has-normal-font-size\" style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: &quot;Noto Serif&quot;, Georgia, &quot;Times New Roman&quot;, Times, serif; font-size: 17px; margin-right: 0px; margin-bottom: 24px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial; color: rgb(60, 67, 74); background-color: rgb(255, 255, 255);\"><span style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-style: inherit; font-weight: 600; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\">Mahadevi and others vs Shivaputra and another. Miscellaneous First Appeal 201689/2016 (MV) decided on 20 November 2020.</span></p><p class=\"has-normal-font-size\" style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: &quot;Noto Serif&quot;, Georgia, &quot;Times New Roman&quot;, Times, serif; font-size: 17px; margin-right: 0px; margin-bottom: 24px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial; color: rgb(60, 67, 74); background-color: rgb(255, 255, 255);\"><span style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-style: inherit; font-weight: 600; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\">Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349819/1/MFA201689-16-20-11-2020.pdf\" rel=\"nofollow\" style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-style: inherit; font-weight: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial; color: var(--color-link);\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349819/1/MFA201689-16-20-11-2020.pdf</a></span></p><p class=\"has-normal-font-size\" style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: &quot;Noto Serif&quot;, Georgia, &quot;Times New Roman&quot;, Times, serif; font-size: 17px; margin-right: 0px; margin-bottom: 24px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial; color: rgb(60, 67, 74); background-color: rgb(255, 255, 255);\">The Karnataka High Court has expressed deep concern and anguish over the increasing cases where insured vehicles are implanted just to get compensation. In many vehicular accidents, the actual vehicle that caused accident lacks insurance policy. Many cases involve ‘hit and run’ accidents. In such cases, the “unscrupulous nexus” stages false scenario in implanting a “proxy” vehicle which is covered by insurance policy. The present case is a classic example of a clear fraud.&nbsp;<span style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-style: inherit; font-weight: 600; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\">After 103 days of the accident, brother of the deceased produces his own insured vehicle insinuating its involvement in the accident!</span></p><p class=\"has-normal-font-size\" style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: &quot;Noto Serif&quot;, Georgia, &quot;Times New Roman&quot;, Times, serif; font-size: 17px; margin-right: 0px; margin-bottom: 24px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial; color: rgb(60, 67, 74); background-color: rgb(255, 255, 255);\">The Court noticed the earlier judgment in&nbsp;<em style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-weight: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\">Sumangala and others vs Virupakshi and another MFA 30219/2011&nbsp;</em>decided on 15 June 2011. The fervent plea of the insurance company in the said case, questioning involvement of the insured vehicle as shown in the final report, was brushed aside by observing that<em style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-weight: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\">&nbsp;‘if there was any shady material which creates suspicion about the credibility of the final report, the proper course for the insurer should have been to apply to the higher authorities to get the matter investigated or at least should have challenged the final report seeking a writ of mandamus for reinvestigation”.&nbsp;</em>However, the High Court in Mahadev’s case observed as follows<em style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-weight: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><span style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-style: inherit; font-weight: 600; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\">; “”</span></em></p><p class=\"has-normal-font-size\" style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: &quot;Noto Serif&quot;, Georgia, &quot;Times New Roman&quot;, Times, serif; font-size: 17px; margin-right: 0px; margin-bottom: 24px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial; color: rgb(60, 67, 74); background-color: rgb(255, 255, 255);\"><span style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-style: inherit; font-weight: 600; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><em style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-weight: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\">“<em style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-weight: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\">‘</em>We have, with great respect, perused the entire judgment. From a perusal of the same, we do not find any law laid down in the said judgment of universal application that in all cases where charge sheets were</em>&nbsp;<em style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-weight: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\">filed, unless Insurance Company challenges the same and obtains writ of mandamus, MACTs are required to act upon the same and proceed to come to a conclusion that the vehicles named as offending vehicles in the charge sheet, without any further proof, are to be taken as the motor vehicles involved in causing the accident, even in cases where evidence produced points to the contrary.</em></span></p><p class=\"has-normal-font-size\" style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: &quot;Noto Serif&quot;, Georgia, &quot;Times New Roman&quot;, Times, serif; font-size: 17px; margin-right: 0px; margin-bottom: 24px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial; color: rgb(60, 67, 74); background-color: rgb(255, 255, 255);\">‘<em style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-weight: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><span style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-style: inherit; font-weight: 600; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\">Further, we find that in the said judgment, there is no discussion of the relevant provisions of Code of Criminal Procedure or other cognate provisions of law under which the police authorities would investigate and file charge sheets and on the probative value of the charge sheets vis-a-vis the involvement of a motor vehicle in causing the accident before the Tribunals trying the compensation cases. Experience of the recent past shows that instances of fraudulent/collusive involvement of motor vehicles duly covered by insurance</span>&nbsp;<span style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-style: inherit; font-weight: 600; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\">policy in accident cases are burgeoning and if the insurance companies are saddled with the burden of challenging the charge sheets filed throughout the country without there being no clear legal mandate to do so, their work would be seriously crippled and they would not be able to do their insurance business without enhancing the premium, thereby further burdening the ever suffering owners of motor vehicles. Even the most liberal reading the provisions of the Motor Vehicles Act, 1988 does not spell out such a requirement.</span></em></p><p class=\"has-normal-font-size\" style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: &quot;Noto Serif&quot;, Georgia, &quot;Times New Roman&quot;, Times, serif; font-size: 17px; margin-right: 0px; margin-bottom: 24px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial; color: rgb(60, 67, 74); background-color: rgb(255, 255, 255);\"><em style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-weight: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><span style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-style: inherit; font-weight: 600; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\">The question is one of fundamental importance – what is the standard of proof applicable in these proceedings? On whom is the initial burden of proving the accident or, as in this case, involvement of the offending motor vehicle cast? Is not still the standard of proof one of “preponderance of probabilities”? Is a mere charge’ sheet, which in this case is shown to be deficient in truth sufficient to tip the balance only on the premise that insurance company has not dipped deep into its pockets to challenge the charge sheet- what with the toxic nexus between the black sheep among the police, medical professionals and touts of every kind masquerading the field which has become a notorious fact of life. We are afraid, we would be muddling the field further for the already befuddled members of MACT by accepting the arguments of learned counsel for the appellants on this aspect’.</span></em></p><p class=\"has-normal-font-size\" style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: &quot;Noto Serif&quot;, Georgia, &quot;Times New Roman&quot;, Times, serif; font-size: 17px; margin-right: 0px; margin-bottom: 24px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial; color: rgb(60, 67, 74); background-color: rgb(255, 255, 255);\"><span style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-style: inherit; font-weight: 600; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\">NOTE:&nbsp;</span>Fraud is a ground to question any administrative orders, quasi-judicial and even judicial verdicts. Lord Denning in one of his most celebrated judgments in Lazarus Estates Ltd v Beasley [1956] 1 Q.B. 702; [1956] 2 W.L.R. 502 held&nbsp;<em style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-weight: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\">“No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud.&nbsp;<span style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-style: inherit; font-weight: 600; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\">Fraud unravels everything.&nbsp;</span>The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever…”</em></p><p class=\"has-normal-font-size\" style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: &quot;Noto Serif&quot;, Georgia, &quot;Times New Roman&quot;, Times, serif; font-size: 17px; margin-right: 0px; margin-bottom: 24px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial; color: rgb(60, 67, 74); background-color: rgb(255, 255, 255);\">The decision of the High Court has armed the Tribunals to independently assess involvement of insured vehicles when fraud is alleged and prima facie shown. The Tribunals are no longer shackled by the chargesheets filed in criminal cases.</p><p class=\"has-normal-font-size\" style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: &quot;Noto Serif&quot;, Georgia, &quot;Times New Roman&quot;, Times, serif; font-size: 17px; margin-right: 0px; margin-bottom: 24px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial; color: rgb(60, 67, 74); background-color: rgb(255, 255, 255);\"><span style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-style: inherit; font-weight: 600; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\">A path-breaking judgment in the direction of saving insurance companies from succumbing in the web of conspiracy, deceit and fraud.</span></p><p class=\"has-normal-font-size\" style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: &quot;Noto Serif&quot;, Georgia, &quot;Times New Roman&quot;, Times, serif; font-size: 17px; margin-right: 0px; margin-bottom: 0px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial; color: rgb(60, 67, 74); background-color: rgb(255, 255, 255);\"><span style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-style: inherit; font-weight: 600; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\">Compiled and written by S. Basavaraj, Advocate, Daksha Legal.</span></p>', '4973e3782411a9f8f7a05c55bf0768f5.png', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '', 1, '', '', '2020-11-28 21:16:22', '2020-12-21 09:14:26'),
(5, 'FAGq1a7XaL8HxZBBspYRJG5vh', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Marriage Act. Section 13B. Parties can be represented by their partners or siblings, as GPA holders subject to the satisfaction of the court. Karnataka High Court', '<h1 style=\"box-sizing: inherit; -webkit-font-smoothing: antialiased; margin: 32px auto; max-width: calc(50vw - 28px); overflow-wrap: break-word; color: rgb(30, 30, 30); font-family: \" crimson=\"\" text\",=\"\" \"baskerville=\"\" old=\"\" face\",=\"\" garamond,=\"\" \"times=\"\" new=\"\" roman\",=\"\" serif;=\"\" font-size:=\"\" 22px;=\"\" background-color:=\"\" rgb(255,=\"\" 255,=\"\" 255);\"=\"\"><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px;\">Aditya Jagannath and another vs NIL . M.F.A.No.4453/2020 (FC)</span>&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder; margin-bottom: 0px;\">decided on 10 November 2020.<br></span><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px; margin-bottom: 0px;\">Judgment Link:&nbsp;<a href=\"https://karnatakajudiciary.kar.nic.in/noticeBoard/MFA-4453-2020.pdf\" rel=\"nofollow\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170);\">https://karnatakajudiciary.kar.nic.in/noticeBoard/MFA-4453-2020.pdf</a></span></h1><h1 style=\"box-sizing: inherit; -webkit-font-smoothing: antialiased; margin: 32px auto; max-width: calc(50vw - 28px); overflow-wrap: break-word; color: rgb(30, 30, 30); font-family: \" crimson=\"\" text\",=\"\" \"baskerville=\"\" old=\"\" face\",=\"\" garamond,=\"\" \"times=\"\" new=\"\" roman\",=\"\" serif;=\"\" font-size:=\"\" 22px;=\"\" background-color:=\"\" rgb(255,=\"\" 255,=\"\" 255);\"=\"\"><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px; margin-bottom: 0px;\"><a href=\"https://karnatakajudiciary.kar.nic.in/noticeBoard/MFA-4453-2020.pdf\" rel=\"nofollow\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170);\"><br></a></span><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px;\">HELD</span>:&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder; margin-bottom: 0px;\">26. Permission is granted to the second appellant to be represented through her Power of Attorney holder, who is none other than her father on the strength of the Special Power of Attorney executed by her.</span></h1><h1 style=\"box-sizing: inherit; -webkit-font-smoothing: antialiased; margin: 32px auto; max-width: calc(50vw - 28px); overflow-wrap: break-word; color: rgb(30, 30, 30); font-family: \" crimson=\"\" text\",=\"\" \"baskerville=\"\" old=\"\" face\",=\"\" garamond,=\"\" \"times=\"\" new=\"\" roman\",=\"\" serif;=\"\" font-size:=\"\" 22px;=\"\" background-color:=\"\" rgb(255,=\"\" 255,=\"\" 255);\"=\"\"><span style=\"box-sizing: inherit; font-weight: bolder; margin-bottom: 0px;\"><br></span><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px; margin-bottom: 0px;\">Relevant paragraphs:&nbsp;</span><b>16.</b> In recent times, we find that the parties who seek for dissolution of their marriage by a decree of divorce by mutual consent do so after long negotiation and discussion, some times they, being located at different parts of the globe, through skype, telephonically or use of other forms of technology, such as whatsapp calls, video conferencing etc. On account of the parties residing in different parts of the country or across the globe and owing to constraints of job or other constraints, such as illness etc., it may not be possible for both parties to sign and verify the pleadings and jointly present the petition for dissolution of their marriage by mutual consent before the Court of Law. This is so in the instant case. In such circumstances, one of the parties to the petition may avail of the facility of appointing a Power of Attorney/agent, in whom the party has full trust and confidence to represent her or him in a proceeding to be filed as in the instant case before the Family Court or any other Court seeking matrimonial or any other relief. Therefore, the provisions of the various enactments must be harmoniously read and interpreted, so as to make it conducive for availing or taking recourse through appointment of a Power of Attorney holder, to represent a party in a proceeding. This is particularly, as in the instant case, where parties are seeking dissolution of their marriage by a decree of divorce by mutual consent. Moreover, in such cases, a party can carefully think over the matter and appoint a person in whom the party would have full trust and confidence to be as her or his Power of Attorney holder. It is on the strength of such a document of Power of Attorney that the Power of Attorney holder would represent a party to jointly file a petition for dissolution of their marriage through mutual consent on behalf of the executor or Power of Attorney. The Family Court may insist on satisfying itself that indeed the parties have an intention that they should seek a decree of divorce by mutual consent and in order to fully satisfy itself, the Court may, apart from examining the Power of Attorney holder representing any party, also through video conferencing, (which is now widely being used on account of the Covid-19 pandemic), examine the parties including the party who is represented through the Power of Attorney holder. That merely because one of the parties would file the petition seeking dissolution of marriage by mutual consent jointly with the other party, through a Power of Attorney, one cannot ignore the fact that the Court must satisfy itself about the genuineness of the petition filed by the parties seeking dissolution of their marriage by a decree of divorce by mutual consent irrespective of whether it is filed through a Power of Attorney. In fact, the filing of such a petition is an exception to what has been stated in Section 23 of the Act. Even so, the Court ought not to be pedantic but must apply a flexible procedure which is in accordance with law and not a procedure, but not one which is incongruent in law.</h1><h1 style=\"box-sizing: inherit; -webkit-font-smoothing: antialiased; margin: 32px auto; max-width: calc(50vw - 28px); overflow-wrap: break-word; color: rgb(30, 30, 30); font-family: \" crimson=\"\" text\",=\"\" \"baskerville=\"\" old=\"\" face\",=\"\" garamond,=\"\" \"times=\"\" new=\"\" roman\",=\"\" serif;=\"\" font-size:=\"\" 22px;=\"\" background-color:=\"\" rgb(255,=\"\" 255,=\"\" 255);\"=\"\"><br><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px; margin-bottom: 0px;\">17.&nbsp;</span>In fact, recently, the Hon’ble Supreme Court in the case of <b>Amardeep Singh vs. Harveen Kaur [(2017) 8 SCC 746] </b>while considering Section 13B(2) of the Act, which stipulates a cooling off period of six months which is also a period of locus poenitentiae, after filing a petition of divorce under Section 13B(1) of the Act, so as to give an opportunity to the parties to rethink over the decision and thereafter, to confirm their decision six months later, has made the said provision less rigid and more pro-litigants by bearing in mind the changed circumstances and peculiarities of the case. Nevertheless, in the said case, it has been observed that the period of six months should be waived owing to the circumstances of the particular case, the exigencies of the situation and bearing in mind the interest of the parties so that justice would be subserved in the matter. In this regard, the Hon’ble Supreme Court has observed that the period mentioned in Section 13B(2) could be construed to be as directory and not mandatory and it would be open to the Court to exercise its discretion in the facts and circumstances of each case, where there are no possibilities of parties to reconcile, cohabit and there are no chances of alternative rehabilitation.<br><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px; margin-bottom: 0px;\"><br></span></h1><h1 style=\"box-sizing: inherit; -webkit-font-smoothing: antialiased; margin: 32px auto; max-width: calc(50vw - 28px); overflow-wrap: break-word; color: rgb(30, 30, 30); font-family: \" crimson=\"\" text\",=\"\" \"baskerville=\"\" old=\"\" face\",=\"\" garamond,=\"\" \"times=\"\" new=\"\" roman\",=\"\" serif;=\"\" font-size:=\"\" 22px;=\"\" background-color:=\"\" rgb(255,=\"\" 255,=\"\" 255);\"=\"\"><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px; margin-bottom: 0px;\">18.&nbsp;</span>A reading of the above would clearly indicate that the Hon’ble Supreme Court has also made it flexible in the context of representation of the parties by their close relatives, partners or siblings or any other person in whom they have complete trust to be appointed as a Power of Attorney holder. In fact, as already noted, the Court can always satisfy itself about the genuineness of the intention of the parties who approach the Court either by themselves or through a Power of Attorney holder by way of video conferencing, so that any doubts about the genuineness of the petition being filed before the Court is removed.<br><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px; margin-bottom: 0px;\">19.&nbsp;</span>On a perusal of the aforesaid observations of the Hon’ble Supreme Court, it is clearly permissible for the parties to be represented by their partners or siblings in a proceeding filed under Section 13B(1) of the Act or any other similar provision in any other enactment, which provides for dissolution of marriage by a decree of divorce by mutual consent.<br><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px; margin-bottom: 0px;\"><br></span></h1><h1 style=\"box-sizing: inherit; -webkit-font-smoothing: antialiased; margin: 32px auto; max-width: calc(50vw - 28px); overflow-wrap: break-word; color: rgb(30, 30, 30); font-family: \" crimson=\"\" text\",=\"\" \"baskerville=\"\" old=\"\" face\",=\"\" garamond,=\"\" \"times=\"\" new=\"\" roman\",=\"\" serif;=\"\" font-size:=\"\" 22px;=\"\" background-color:=\"\" rgb(255,=\"\" 255,=\"\" 255);\"=\"\"><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px; margin-bottom: 0px;\">20…&nbsp;</span>Moreover, for the sake of satisfying and genuineness of the petition, the Family Court could always resort to video conferencing through the medium of which, both the parties could appear apart from the Power of Attorney holder of the second appellant appearing for her, so as to completely satisfy itself about the genuineness of the petition filed by the parties just as presently in this appeal, the appellants have both appeared through video conferencing, first appellant from Bengaluru and the second appellant from Toranto, Canada.<br><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px; margin-bottom: 0px;\"><br></span></h1><h1 style=\"box-sizing: inherit; -webkit-font-smoothing: antialiased; margin: 32px auto; max-width: calc(50vw - 28px); overflow-wrap: break-word; color: rgb(30, 30, 30); font-family: \" crimson=\"\" text\",=\"\" \"baskerville=\"\" old=\"\" face\",=\"\" garamond,=\"\" \"times=\"\" new=\"\" roman\",=\"\" serif;=\"\" font-size:=\"\" 22px;=\"\" background-color:=\"\" rgb(255,=\"\" 255,=\"\" 255);\"=\"\"><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px; margin-bottom: 0px;\">26. Permission is granted to the second appellant to be represented through her Power of Attorney holder, who is none other than her father on the strength of the Special Power of Attorney executed by her.<br></span><br></h1><h1 style=\"box-sizing: inherit; -webkit-font-smoothing: antialiased; margin: 32px auto; max-width: calc(50vw - 28px); overflow-wrap: break-word; color: rgb(30, 30, 30); font-family: \" crimson=\"\" text\",=\"\" \"baskerville=\"\" old=\"\" face\",=\"\" garamond,=\"\" \"times=\"\" new=\"\" roman\",=\"\" serif;=\"\" font-size:=\"\" 22px;=\"\" background-color:=\"\" rgb(255,=\"\" 255,=\"\" 255);\"=\"\">27.&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px; margin-bottom: 0px;\">Further, in order to satisfy itself, the Family Court is at liberty to direct the parties especially the second appellant to appear through video conference or skype, before the Court and if such a direction is issued, the second appellant shall comply with the said direction.<br></span><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px;\"><br></span></h1><h1 style=\"box-sizing: inherit; -webkit-font-smoothing: antialiased; margin: 32px auto; max-width: calc(50vw - 28px); overflow-wrap: break-word; color: rgb(30, 30, 30); font-family: \" crimson=\"\" text\",=\"\" \"baskerville=\"\" old=\"\" face\",=\"\" garamond,=\"\" \"times=\"\" new=\"\" roman\",=\"\" serif;=\"\" font-size:=\"\" 22px;=\"\" background-color:=\"\" rgb(255,=\"\" 255,=\"\" 255);\"=\"\"><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px;\">Judgments cited/relied on:</span>&nbsp;<em style=\"box-sizing: inherit; margin-bottom: 0px;\"><span style=\"box-sizing: inherit; font-weight: bolder;\">Komal S. Padukone vs. Principal Judge, Family Court [ILR 1999 KAR 2811], Harshada Bharat Deshmukh vs. Bharat Appasaheb Deshmukh [AIR 2018 Bombay 148], Sudha Ramalingam vs. Registrar General, High Court of Judicature at Madras [AIR 2015 (NOC) 266 (MAD)], Kunhi Purayil Mukundan Naveen vs. Anjalika Dinesh [AIR 2011 (KER) 186], Dasam Vijay Rama Rao vs. M.Sai Sri [ALD-2015-4-757], Amardeep Singh vs. Harveen Kaur [(2017) 8 SCC 746], Komal S. Padukone vs. Principal Judge, Family Court at Bangalore City [ILR 1999 KAR 2811], Harshada Bharat Deshmukh vs. Bharat Appasaheb Deshmukh [AIR 2018 Bombay 148], Sudha Ramalingam vs. Registrar General, High Court of Judicature at Madras [AIR 2015 (NOC) 266 (MAD.)], Dasam Vijay Rama Rao vs. M.Sai Sri [ALD-2015-4-757].<br></span></em><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px; margin-bottom: 0px;\"><br></span></h1><h1 style=\"box-sizing: inherit; -webkit-font-smoothing: antialiased; margin: 32px auto; max-width: calc(50vw - 28px); overflow-wrap: break-word; color: rgb(30, 30, 30); font-family: \" crimson=\"\" text\",=\"\" \"baskerville=\"\" old=\"\" face\",=\"\" garamond,=\"\" \"times=\"\" new=\"\" roman\",=\"\" serif;=\"\" font-size:=\"\" 22px;=\"\" background-color:=\"\" rgb(255,=\"\" 255,=\"\" 255);\"=\"\"><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px; margin-bottom: 0px;\">Compiled by S. Basavaraj, Advocate, Daksha Legal.</span></h1>', '844479195a6da85633fd6f8fc05f35b8.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '', 0, '', '', '2020-11-28 21:05:49', '2021-08-21 13:40:50');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(7, 'uOa9gkIt6sB3mmHTZPYrqkuiK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Order 39 Rules 1 and 2. Purpose of granting ad interim injunction is to preserve the subject matter of the suit in the status quo for the time being. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;text-align:\r\njustify;line-height:150%;mso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:14.0pt;line-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:\"Times New Roman\"\"><o:p> </o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" align=\"right\" style=\"margin-top:2.0pt;margin-right:21.6pt;\r\nmargin-bottom:10.0pt;margin-left:0cm;text-align:right;mso-layout-grid-align:\r\nnone;text-autospace:none\"><b><span style=\"font-size:19.0pt;mso-bidi-font-size:14.0pt;line-height:115%;font-family:\r\n\"Adobe Gothic Std B\",\"sans-serif\"\">Daksha Legal </span></b></p>\r\n\r\n<p class=\"MsoNormal\" align=\"center\" style=\"margin-top:2.0pt;margin-right:21.6pt;\r\nmargin-bottom:10.0pt;margin-left:0cm;text-align:center;mso-layout-grid-align:\r\nnone;text-autospace:none\"><b><span style=\"font-size:24.0pt;mso-bidi-font-size:14.0pt;line-height:115%;font-family:\r\n\"Adobe Gothic Std B\",\"sans-serif\"\">IN THE SUPREME COURT OF INDIA<o:p></o:p></span></b></p>\r\n\r\n<p class=\"MsoNormal\" align=\"center\" style=\"margin-top:2.0pt;margin-right:21.6pt;\r\nmargin-bottom:10.0pt;margin-left:0cm;text-align:center;mso-layout-grid-align:\r\nnone;text-autospace:none\"><span style=\"font-size:14.0pt;line-height:115%;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana\">(BEFORE\r\nJustice K. RMASWAMY AND Justice G.N.RAY)</span><b><span style=\"font-size:23.0pt;mso-bidi-font-size:14.0pt;line-height:\r\n115%;font-family:\"Adobe Gothic Std B\",\"sans-serif\"\"><o:p></o:p></span></b></p>\r\n\r\n<p class=\"MsoNormal\" align=\"center\" style=\"margin-top:2.0pt;margin-right:14.4pt;\r\nmargin-bottom:0cm;margin-left:14.4pt;margin-bottom:.0001pt;text-align:center;\r\nline-height:normal;mso-layout-grid-align:none;text-autospace:none\"><b><span style=\"font-size:16.0pt;mso-bidi-font-size:\r\n12.0pt;font-family:\"Verdana\",\"sans-serif\";mso-bidi-font-family:Verdana\">Civil\r\nAppeal Nos. 5054-55 of 1991, decided on December 16, 1991</span></b><b><span style=\"font-size:16.0pt;mso-bidi-font-size:\r\n12.0pt;font-family:\"Times New Roman\",\"serif\"\"><o:p></o:p></span></b></p>\r\n\r\n<p class=\"MsoNormal\" align=\"center\" style=\"margin-top:2.0pt;margin-right:14.4pt;\r\nmargin-bottom:0cm;margin-left:14.4pt;margin-bottom:.0001pt;text-align:center;\r\nline-height:normal;mso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:12.0pt;font-family:\"Times New Roman\",\"serif\"\"><o:p> </o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" align=\"center\" style=\"text-align:center;line-height:normal;\r\nmso-layout-grid-align:none;text-autospace:none\"><b><i><span style=\"font-size:\r\n23.0pt;mso-bidi-font-size:10.0pt;font-family:\"Times New Roman\",\"serif\"\">(1992)\r\n1 SCC 719</span></i></b><b><span style=\"font-size:27.0pt;mso-bidi-font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\"\"><o:p></o:p></span></b></p>\r\n\r\n<p class=\"MsoNormal\" align=\"center\" style=\"margin-top:2.0pt;margin-right:14.4pt;\r\nmargin-bottom:10.0pt;margin-left:14.4pt;text-align:center;mso-layout-grid-align:\r\nnone;text-autospace:none\"><span style=\"font-size:14.0pt;line-height:115%;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\"\"><o:p> </o:p></span></p>\r\n\r\n<table class=\"MsoTableGrid\" border=\"1\" cellspacing=\"0\" cellpadding=\"0\" style=\"border: none;\">\r\n <tbody><tr>\r\n  <td width=\"294\" valign=\"top\" style=\"width:220.5pt;border:solid windowtext 1.0pt;\r\n  mso-border-alt:solid windowtext .5pt;padding:0cm 5.4pt 0cm 5.4pt\">\r\n  <p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\n  normal;mso-layout-grid-align:none;text-autospace:none\"><b><i><span style=\"font-size:23.0pt;mso-bidi-font-size:10.0pt;font-family:\"Times New Roman\",\"serif\"\">Dalpat\r\n  Kumar</span></i></b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\n  mso-bidi-font-family:Verdana\"><o:p></o:p></span></p>\r\n  </td>\r\n  <td width=\"344\" valign=\"top\" style=\"width:258.3pt;border:solid windowtext 1.0pt;\r\n  border-left:none;mso-border-left-alt:solid windowtext .5pt;mso-border-alt:\r\n  solid windowtext .5pt;padding:0cm 5.4pt 0cm 5.4pt\">\r\n  <p class=\"MsoNormal\" style=\"margin-top:3.0pt;margin-right:180.0pt;margin-bottom:\r\n  2.5pt;margin-left:18.0pt;text-indent:-18.0pt;line-height:normal;mso-layout-grid-align:\r\n  none;text-autospace:none\"><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\n  mso-bidi-font-family:Verdana\">Appellant.</span><span style=\"font-size:14.0pt;\r\n  font-family:\"Adobe Gothic Std B\",\"sans-serif\"\"><o:p></o:p></span></p>\r\n  <p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\n  normal;mso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\n  mso-bidi-font-family:Verdana\"><o:p> </o:p></span></p>\r\n  </td>\r\n </tr>\r\n <tr>\r\n  <td width=\"294\" valign=\"top\" style=\"width:220.5pt;border:solid windowtext 1.0pt;\r\n  border-top:none;mso-border-top-alt:solid windowtext .5pt;mso-border-alt:solid windowtext .5pt;\r\n  padding:0cm 5.4pt 0cm 5.4pt\">\r\n  <p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\n  normal;mso-layout-grid-align:none;text-autospace:none\"><i><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\n  mso-bidi-font-family:Verdana\">Versus <o:p></o:p></span></i></p>\r\n  </td>\r\n  <td width=\"344\" valign=\"top\" style=\"width:258.3pt;border-top:none;border-left:\r\n  none;border-bottom:solid windowtext 1.0pt;border-right:solid windowtext 1.0pt;\r\n  mso-border-top-alt:solid windowtext .5pt;mso-border-left-alt:solid windowtext .5pt;\r\n  mso-border-alt:solid windowtext .5pt;padding:0cm 5.4pt 0cm 5.4pt\">\r\n  <p class=\"MsoNormal\" style=\"margin-top:3.0pt;margin-right:180.0pt;margin-bottom:\r\n  2.5pt;margin-left:18.0pt;text-indent:-18.0pt;line-height:normal;mso-layout-grid-align:\r\n  none;text-autospace:none\"><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\n  mso-bidi-font-family:Verdana\"><o:p> </o:p></span></p>\r\n  </td>\r\n </tr>\r\n <tr>\r\n  <td width=\"294\" valign=\"top\" style=\"width:220.5pt;border:solid windowtext 1.0pt;\r\n  border-top:none;mso-border-top-alt:solid windowtext .5pt;mso-border-alt:solid windowtext .5pt;\r\n  padding:0cm 5.4pt 0cm 5.4pt\">\r\n  <p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\n  normal;mso-layout-grid-align:none;text-autospace:none\"><b><i><span style=\"font-size:23.0pt;mso-bidi-font-size:10.0pt;font-family:\"Times New Roman\",\"serif\"\">Prahlad\r\n  Singh</span></i></b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\n  mso-bidi-font-family:Verdana\"><o:p></o:p></span></p>\r\n  </td>\r\n  <td width=\"344\" valign=\"top\" style=\"width:258.3pt;border-top:none;border-left:\r\n  none;border-bottom:solid windowtext 1.0pt;border-right:solid windowtext 1.0pt;\r\n  mso-border-top-alt:solid windowtext .5pt;mso-border-left-alt:solid windowtext .5pt;\r\n  mso-border-alt:solid windowtext .5pt;padding:0cm 5.4pt 0cm 5.4pt\">\r\n  <p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\n  normal;mso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\n  mso-bidi-font-family:Verdana\">Respondent.<o:p></o:p></span></p>\r\n  </td>\r\n </tr>\r\n</tbody></table>\r\n\r\n<p class=\"MsoNormal\" align=\"center\" style=\"text-align:center;line-height:normal;\r\nmso-layout-grid-align:none;text-autospace:none\"><b><i><span style=\"font-size:\r\n24.0pt;mso-bidi-font-size:10.0pt;font-family:\"Times New Roman\",\"serif\"\"><o:p> </o:p></span></i></b></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:2.0pt;margin-right:0cm;margin-bottom:0cm;\r\nmargin-left:0cm;margin-bottom:.0001pt;text-align:justify;line-height:150%;\r\nmso-layout-grid-align:none;text-autospace:none\"><b><span style=\"font-size:14.0pt;\r\nline-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:\r\nVerdana\">K. RAMASWAMY, J.</span></b><span style=\"font-size:14.0pt;line-height:\r\n150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana\">—\r\nLeave granted.</span><span style=\"font-size:14.0pt;line-height:150%;font-family:\r\n\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:\"Times New Roman\"\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:2.0pt;margin-right:0cm;margin-bottom:0cm;\r\nmargin-left:0cm;margin-bottom:.0001pt;text-align:justify;line-height:150%;\r\nmso-layout-grid-align:none;text-autospace:none\"><b><span style=\"font-size:14.0pt;\r\nline-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:\r\nVerdana\">2.</span></b><span style=\"font-size:14.0pt;line-height:150%;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana\">\r\nSri S.K. Jain, on his application, is discharged.</span><span style=\"font-size:\r\n14.0pt;line-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:\"Times New Roman\"\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:2.0pt;margin-right:0cm;margin-bottom:0cm;\r\nmargin-left:0cm;margin-bottom:.0001pt;text-align:justify;line-height:150%;\r\nmso-layout-grid-align:none;text-autospace:none\"><b><span style=\"font-size:14.0pt;\r\nline-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:\r\nVerdana\">3.</span></b><span style=\"font-size:14.0pt;line-height:150%;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana\">\r\nHeard the counsel on either side. This is the fourth round of litigation\r\nrelating to the same subject matter. On June 14, 1979 the first appellant\r\nclaimed to have entered into an agreement to purchase the residential house\r\nsituated in Jaipur for a consideration of Rs 51,000. He laid the suit for\r\nspecific performance and the suit was decreed ex parte. On August 10, 1983, the\r\nsale deed was executed through court. On April 28, 1984, the respondent’s wife\r\nfiled Suit No. 83 of 1984 and also sought for temporary injunction from\r\ndispossession. In May 1984, the trial court rejected the application for ad\r\ninterim injunction which was confirmed, on appeal, by the High Court on July\r\n14, 1987. Thereafter the suit was got dismissed for non-prosecution. The first\r\nappellant filed Execution Application No. 6 of 1985 in which the respondent\r\nfiled five unsuccessful objections. The first was dismissed on March 4, 1987.\r\nThe second one on </span><span style=\"font-size:14.0pt;line-height:150%;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:\"Times New Roman\";\r\nmso-fareast-language:EN-GB;mso-no-proof:yes\"><!--[if gte vml 1]><v:shape id=\"Picture_x0020_2\"\r\n o:spid=\"_x0000_i1027\" type=\"#_x0000_t75\" style=\'width:26.25pt;height:10.5pt;\r\n visibility:visible;mso-wrap-style:square\'>\r\n <v:imagedata src=\"file:///C:\\Users\\Nitin\\AppData\\Local\\Temp\\msohtmlclip1\\01\\clip_image003.png\"\r\n  o:title=\"\"/>\r\n</v:shape><![endif]--><!--[if !vml]--><img width=\"35\" height=\"14\" src=\"file:///C:\\Users\\Nitin\\AppData\\Local\\Temp\\msohtmlclip1\\01\\clip_image003.png\" v:shapes=\"Picture_x0020_2\"><!--[endif]--></span><span style=\"font-size:14.0pt;\r\nline-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:\r\nVerdana\">December 4, 1987, which was confirmed on revision by the High Court on\r\nJanuary 20, 1988. The third one on October 4, 1987 and fourth one on January\r\n17, 1989. Even thereafter fifth objection was filed on May 23, 1989 which was\r\ndismissed on October 24, 1989. This was also confirmed by the High Court in\r\nCivil Revision No. 109 of 1990 dated August 7, 1990. The third round of\r\nlitigation was started at the behest of his sons in O.S. No. 278 of 1988\r\nclaiming to be the joint family property and for a declaration that the sale\r\ndoes not bind them and they sought for partition. They also sought for ad\r\ninterim injunction which was rejected on July 7, 1988. On appeal, the High\r\nCourt in Misc. Appeal No. 177 of 1988 confirmed it by the order dated July 26,\r\n1988. The fourth round of litigation was started by the respondent in filing\r\nthe present suit on December 7, 1988 pleading, that the first appellant being\r\nhis counsel played fraud on him, in paragraphs 9 and 10, the details of which\r\nare not material for the purpose of this case. He also sought for an interim\r\ninjunction from dispossession. In the meanwhile a part of the property, namely,\r\nshops were obtained symbolical possession by the first appellant. The trial\r\ncourt by order dated November 3, 1990 dismissed the application. On appeal, the\r\nHigh Court in Misc. Appeal Nos. 498 of 1990 and 501 of 1990 by the impugned\r\norder dated February 26, 1991 allowed the applications and granted ad interim\r\ninjunction restraining the appellants from taking possession of the residential\r\nportion.</span><span style=\"font-size:14.0pt;line-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:\"Times New Roman\"\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:2.0pt;margin-right:0cm;margin-bottom:0cm;\r\nmargin-left:0cm;margin-bottom:.0001pt;text-align:justify;line-height:150%;\r\nmso-layout-grid-align:none;text-autospace:none\"><u><span style=\"font-size:14.0pt;\r\nline-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:\r\nVerdana;mso-bidi-font-weight:bold\">4.</span></u><u><span style=\"font-size:14.0pt;\r\nline-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:\r\nVerdana\"> Order 39 Rule 1(<i>c</i>) provides that temporary injunction may be\r\ngranted where, in any suit, it is proved by the affidavit or otherwise, that\r\nthe defendant threatens to dispossess the plaintiff or otherwise cause injury\r\nto the plaintiff in relation to any property in dispute in the suit, the court\r\nmay by order grant a temporary injunction to restrain such act or make such\r\nother order for the purpose of staying and preventing … or dispossession of the\r\nplaintiff or otherwise causing injury to the plaintiff in relation to any\r\nproperty in dispute in the suit as the court thinks fit until the disposal of\r\nthe suit or until further orders. Pursuant to the recommendation of the Law\r\nCommission clause (<i>c</i>) was brought on statute by Section 86(<i>i</i>)(<i>b</i>)\r\nof the Amending Act 104 of 1976 with effect from February 1, 1977. Earlier\r\nthereto there was no express power except the inherent power under Section 151\r\nCPC to grant ad interim injunction against dispossession. Rule 1 primarily\r\nconcerned with the preservation of the property in dispute till legal rights\r\nare adjudicated. Injunction is a judicial process by which a party is required\r\nto do or to refrain from doing any particular act. It is in the nature of\r\npreventive relief to a litigant to prevent future possible injury. In other\r\nwords, the court, on exercise of the power of granting ad interim injunction,\r\nis to preserve the subject matter of the suit in the status quo for the time\r\nbeing. It is settled </span></u><u><span style=\"font-size:14.0pt;line-height:\r\n150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:\"Times New Roman\";\r\nmso-fareast-language:EN-GB;mso-no-proof:yes\"><!--[if gte vml 1]><v:shape id=\"Picture_x0020_1\"\r\n o:spid=\"_x0000_i1026\" type=\"#_x0000_t75\" style=\'width:26.25pt;height:10.5pt;\r\n visibility:visible;mso-wrap-style:square\'>\r\n <v:imagedata src=\"file:///C:\\Users\\Nitin\\AppData\\Local\\Temp\\msohtmlclip1\\01\\clip_image004.png\"\r\n  o:title=\"\"/>\r\n</v:shape><![endif]--><!--[if !vml]--><img width=\"35\" height=\"14\" src=\"file:///C:\\Users\\Nitin\\AppData\\Local\\Temp\\msohtmlclip1\\01\\clip_image004.png\" v:shapes=\"Picture_x0020_1\"><!--[endif]--></span></u><u><span style=\"font-size:14.0pt;\r\nline-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:\r\nVerdana\">law that the grant of injunction is a discretionary relief. The\r\nexercise thereof is subject to the court satisfying that (1) there is a serious\r\ndisputed question to be tried in the suit and that an act, on the facts before\r\nthe court, there is probability of his being entitled to the relief asked for\r\nby the plaintiff/defendant; (2) the court’s interference is necessary to\r\nprotect the party from the species of injury. In other words, irreparable\r\ninjury or damage would ensue before the legal right would be established at\r\ntrial; and (3) that the comparative hardship or mischief or inconvenience which\r\nis likely to occur from withholding the injunction will be greater than that\r\nwould be likely to arise from granting it.</span></u><u><span style=\"font-size:\r\n14.0pt;line-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:\"Times New Roman\"\"><o:p></o:p></span></u></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:2.0pt;margin-right:0cm;margin-bottom:0cm;\r\nmargin-left:0cm;margin-bottom:.0001pt;text-align:justify;line-height:150%;\r\nmso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:14.0pt;\r\nline-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:\r\n\"Times New Roman\"\"><o:p> </o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:2.0pt;margin-right:0cm;margin-bottom:0cm;\r\nmargin-left:0cm;margin-bottom:.0001pt;text-align:justify;line-height:150%;\r\nmso-layout-grid-align:none;text-autospace:none\"><b><span style=\"font-size:14.0pt;\r\nline-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:\r\nVerdana\">5.</span></b><span style=\"font-size:14.0pt;line-height:150%;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana\">\r\nTherefore, the burden is on the plaintiff by evidence aliunde by affidavit or\r\notherwise that there is “a prima facie case” in his favour which needs\r\nadjudication at the trial. The existence of the prima facie right and\r\ninfraction of the enjoyment of his property or the right is a condition for the\r\ngrant of temporary injunction. Prima facie case is not to be confused with\r\nprima facie title which has to be established, on evidence at the trial. Only\r\nprima facie case is a substantial question raised, bona fide, which needs\r\ninvestigation and a decision on merits. Satisfaction that there is a prima\r\nfacie case by itself is not sufficient to grant injunction. The Court further\r\nhas to satisfy that non-interference by the Court would result in “irreparable\r\ninjury” to the party seeking relief and that there is no other remedy available\r\nto the party except one to grant injunction and he needs protection from the\r\nconsequences of apprehended injury or dispossession. Irreparable injury,\r\nhowever, does not mean that there must be no physical possibility of repairing\r\nthe injury, but means only that the injury must be a material one, namely one\r\nthat cannot be adequately compensated by way of damages. The third condition\r\nalso is that “the balance of convenience” must be in favour of granting\r\ninjunction. The Court while granting or refusing to grant injunction should\r\nexercise sound judicial discretion to find the amount of substantial mischief\r\nor injury which is likely to be caused to the parties, if the injunction is\r\nrefused and compare it with that which is likely to be caused to the other side\r\nif the injunction is granted. If on weighing competing possibilities or probabilities\r\nof likelihood of injury and if the Court considers that pending the suit, the\r\nsubject matter should be maintained in status quo, an injunction would be\r\nissued. Thus the Court has to exercise its sound judicial discretion in\r\ngranting or refusing the relief of ad interim injunction pending the suit.</span><span style=\"font-size:14.0pt;line-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:\"Times New Roman\"\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:2.0pt;margin-right:0cm;margin-bottom:0cm;\r\nmargin-left:0cm;margin-bottom:.0001pt;text-align:justify;text-indent:18.0pt;\r\nline-height:150%;mso-layout-grid-align:none;text-autospace:none\"><b><span style=\"font-size:14.0pt;line-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana\">6.</span></b><span style=\"font-size:14.0pt;\r\nline-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:\r\nVerdana\"> Undoubtedly, in a suit seeking to set aside the decree, the subject\r\nmatter in the earlier suit, though became final, the Court would in an\r\nappropriate case grant ad interim injunction when the party seeks to set aside\r\nthe decree on the ground of fraud pleaded in the suit or for want of </span><span style=\"font-size:14.0pt;line-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:\"Times New Roman\";mso-fareast-language:EN-GB;mso-no-proof:\r\nyes\"><!--[if gte vml 1]><v:shape id=\"Picture_x0020_3\" o:spid=\"_x0000_i1025\"\r\n type=\"#_x0000_t75\" style=\'width:26.25pt;height:10.5pt;visibility:visible;\r\n mso-wrap-style:square\'>\r\n <v:imagedata src=\"file:///C:\\Users\\Nitin\\AppData\\Local\\Temp\\msohtmlclip1\\01\\clip_image005.png\"\r\n  o:title=\"\"/>\r\n</v:shape><![endif]--><!--[if !vml]--><img width=\"35\" height=\"14\" src=\"file:///C:\\Users\\Nitin\\AppData\\Local\\Temp\\msohtmlclip1\\01\\clip_image005.png\" v:shapes=\"Picture_x0020_3\"><!--[endif]--></span><span style=\"font-size:14.0pt;\r\nline-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:\r\nVerdana\">jurisdiction in the Court which passed the decree. But the Court would\r\nbe circumspect before granting the injunction and look to the conduct of the\r\nparty, the probable injuries to either party and whether the plaintiff could be\r\nadequately compensated if injunction is refused. This case demonstrates (we are\r\nnot expressing any opinion on the plea of fraud or their relative merits in the\r\ncase or the validity of the decree impugned), suffice to state that the conduct\r\nof the respondent militates against the bona fides. At present there is a sale\r\ndeed executed by the Court in favour of the first appellant. If ultimately the\r\nrespondent succeeds at the trial, they can be adequately compensated by\r\nawarding damages for use and occupation from the date of dispossession till\r\ndate of restitution. Repeatedly the civil court and the High Court refused\r\ninjunction pending proceedings. For any acts of damage, if attempted to be\r\nmade, to the property, or done, appropriate direction could be taken in the\r\nsuit. If any alienation is made it would be subject to doctrine of lis pendens\r\nunder Section 52 of the Transfer of Property Act. The High Court without\r\nadverting to any of these material circumstances held that balance of\r\nconvenience lies in favour of granting injunction with the following\r\nobservations, “keeping in mind the history, various facts which have been\r\nbrought to my notice, and looking to the balance of convenience and irreparable\r\nloss, I think it will be in the interests of justice to allow these appeals and\r\ngrant temporary injunction that the appellants may not be dispossessed from the\r\nsuit property”. The phrases “prima facie case”, “balance of convenience” and\r\n“irreparable loss” are not rhetoric phrases for incantation, but words of width\r\nand elasticity, to meet myriad situations presented by men’s ingenuity in given\r\nfacts and circumstances, but always is hedged with sound exercise of judicial\r\ndiscretion to meet the ends of justice. The facts are eloquent and speak for\r\nthemselves. It is well nigh impossible to find from facts prima facie case and\r\nbalance of convenience. The respondents can be adequately compensated on their\r\nsuccess.</span><span style=\"font-size:14.0pt;line-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:\"Times New Roman\"\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:2.0pt;margin-right:0cm;margin-bottom:0cm;\r\nmargin-left:0cm;margin-bottom:.0001pt;text-align:justify;text-indent:18.0pt;\r\nline-height:150%;mso-layout-grid-align:none;text-autospace:none\"><b><span style=\"font-size:14.0pt;line-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana\">7.</span></b><span style=\"font-size:14.0pt;\r\nline-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:\r\nVerdana\"> In our considered view, the High Court committed manifest error of\r\nlaw in jumping to the above conclusion to allow the appeal. This appeal is,\r\naccordingly, allowed. The order of the High Court is set aside and that of the\r\ntrial court is confirmed. It is made clear that any observations made either by\r\nthe trial court or the High Court or of this Court should be taken to be not\r\nrelevant at the trial on merits. These are our only prima facie observations,\r\nsubject to adduction of evidence and proof at the trial on merits in the suit.\r\nThe parties are directed to bear their own costs.</span><span style=\"font-size:\r\n14.0pt;line-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:\"Times New Roman\"\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:3.6pt;margin-right:0cm;margin-bottom:6.0pt;\r\nmargin-left:0cm;text-align:justify;line-height:150%;mso-layout-grid-align:none;\r\ntext-autospace:none\"><span style=\"font-size:14.0pt;line-height:150%;font-family:\r\n\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana\">———</span><span style=\"font-size:14.0pt;line-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:\"Times New Roman\"\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:5.0pt;margin-right:0cm;margin-bottom:5.0pt;\r\nmargin-left:36.0pt;text-align:justify;text-indent:-36.0pt;line-height:150%;\r\nmso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:14.0pt;\r\nline-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:\r\nVerdana\">†</span><span style=\"font-size:14.0pt;line-height:150%;font-family:\r\n\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:\"Times New Roman\"\">       </span><span style=\"font-size:14.0pt;\r\nline-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:\r\nVerdana\">From the Judgment and Order dated Feb. 26, 1991 of the Rajasthan High\r\nCourt in S.B. Civil Misc. Appeal Nos. 498 and 501 of 1990</span><span style=\"font-size:14.0pt;line-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:\"Times New Roman\"\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;line-height:150%\"><span style=\"font-size:14.0pt;line-height:150%;font-family:\"Adobe Gothic Std B\",\"sans-serif\"\"><o:p> </o:p></span></p>', '7f42faec5da1618d42ed3beb05a25e6e.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-11-30 23:27:16', '2021-08-21 00:18:43');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(8, 'FAvEd3KveD4T929UOTWBrJ6wa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contract Act.  Power of Attorney can be revoked by the principal unless the agent’s authority is coupled with interest. Supreme Court. ', '<p class=\"MsoNormal\" align=\"center\" style=\"margin-right:21.6pt;text-align:center;\r\nmso-layout-grid-align:none;text-autospace:none\"><b><span lang=\"EN-US\" style=\"font-size:22.0pt;mso-bidi-font-size:14.0pt;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\"\"><o:p> </o:p></span></b></p>\r\n\r\n<p class=\"MsoNormal\" align=\"center\" style=\"margin-right:21.6pt;text-align:center;\r\nmso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size: 14pt; font-family: \"Adobe Gothic Std B\", sans-serif;\">                                                                                                                                Daksha Legal </span><b><span lang=\"EN-US\" style=\"font-size:22.0pt;mso-bidi-font-size:14.0pt;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\"\"><o:p> </o:p></span></b></p>\r\n\r\n<p class=\"MsoNormal\" align=\"center\" style=\"margin-right:21.6pt;text-align:center;\r\nmso-layout-grid-align:none;text-autospace:none\"><b><span lang=\"EN-US\" style=\"font-size:22.0pt;mso-bidi-font-size:14.0pt;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\"\">IN THE SUPREME COURT OF INDIA<o:p></o:p></span></b></p>\r\n\r\n<h1 style=\"margin-right:14.4pt;text-align:center;\r\nmso-layout-grid-align:none;text-autospace:none\"><b><span style=\"font-size:13.0pt;\r\nmso-bidi-font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">(BEFORE Justice K.\r\nJAGANNATHA SHETTY AND Justice A.M. AHMADI,<br></span></b><u><span style=\"font-size:14.0pt;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\"><b>Civil Appeal No. 4177 of 1989 decided on October 5,\r\n1989</b></span></u></h1>\r\n\r\n\r\n\r\n<p class=\"MsoNormal\" align=\"center\" style=\"margin-top:0cm;margin-right:14.4pt;\r\nmargin-bottom:0cm;margin-left:14.4pt;margin-bottom:.0001pt;text-align:center;\r\nmso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:14.0pt;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-ansi-language:EN-GB\"><o:p> </o:p></span></p>\r\n\r\n<table class=\"MsoTableGrid\" border=\"1\" cellspacing=\"0\" cellpadding=\"0\" style=\"border: none;\">\r\n <tbody><tr>\r\n  <td width=\"294\" valign=\"top\" style=\"width:220.5pt;border:solid windowtext 1.0pt;\r\n  mso-border-alt:solid windowtext .5pt;padding:0cm 5.4pt 0cm 5.4pt\">\r\n  <p class=\"MsoNormal\"><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\n  mso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">SOUTHERN ROADWAYS LTD.,\r\n  MADURAI,  REPRESENTED BY ITS SECRETARY<o:p></o:p></span></p>\r\n  </td>\r\n  <td width=\"344\" valign=\"top\" style=\"width:258.3pt;border:solid windowtext 1.0pt;\r\n  border-left:none;mso-border-left-alt:solid windowtext .5pt;mso-border-alt:\r\n  solid windowtext .5pt;padding:0cm 5.4pt 0cm 5.4pt\">\r\n  <p class=\"MsoNormal\" style=\"margin-top:0cm;margin-right:180.0pt;margin-bottom:\r\n  0cm;margin-left:18.0pt;margin-bottom:.0001pt;text-indent:-18.0pt;mso-layout-grid-align:\r\n  none;text-autospace:none\"><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\n  mso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">Appellant;</span><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\n  mso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n  <p class=\"MsoNormal\"><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\n  mso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"><o:p> </o:p></span></p>\r\n  </td>\r\n </tr>\r\n <tr>\r\n  <td width=\"294\" valign=\"top\" style=\"width:220.5pt;border:solid windowtext 1.0pt;\r\n  border-top:none;mso-border-top-alt:solid windowtext .5pt;mso-border-alt:solid windowtext .5pt;\r\n  padding:0cm 5.4pt 0cm 5.4pt\">\r\n  <p class=\"MsoNormal\"><i><span style=\"font-size:14.0pt;font-family:\r\n  \"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;mso-ansi-language:\r\n  EN-GB\">Versus <o:p></o:p></span></i></p>\r\n  </td>\r\n  <td width=\"344\" valign=\"top\" style=\"width:258.3pt;border-top:none;border-left:\r\n  none;border-bottom:solid windowtext 1.0pt;border-right:solid windowtext 1.0pt;\r\n  mso-border-top-alt:solid windowtext .5pt;mso-border-left-alt:solid windowtext .5pt;\r\n  mso-border-alt:solid windowtext .5pt;padding:0cm 5.4pt 0cm 5.4pt\">\r\n  <p class=\"MsoNormal\" style=\"margin-top:0cm;margin-right:180.0pt;margin-bottom:\r\n  0cm;margin-left:18.0pt;margin-bottom:.0001pt;text-indent:-18.0pt;mso-layout-grid-align:\r\n  none;text-autospace:none\"><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\n  mso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"><o:p> </o:p></span></p>\r\n  </td>\r\n </tr>\r\n <tr>\r\n  <td width=\"294\" valign=\"top\" style=\"width:220.5pt;border:solid windowtext 1.0pt;\r\n  border-top:none;mso-border-top-alt:solid windowtext .5pt;mso-border-alt:solid windowtext .5pt;\r\n  padding:0cm 5.4pt 0cm 5.4pt\">\r\n  <p class=\"MsoNormal\"><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\n  mso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">S.M. KRISHNAN<o:p></o:p></span></p>\r\n  </td>\r\n  <td width=\"344\" valign=\"top\" style=\"width:258.3pt;border-top:none;border-left:\r\n  none;border-bottom:solid windowtext 1.0pt;border-right:solid windowtext 1.0pt;\r\n  mso-border-top-alt:solid windowtext .5pt;mso-border-left-alt:solid windowtext .5pt;\r\n  mso-border-alt:solid windowtext .5pt;padding:0cm 5.4pt 0cm 5.4pt\">\r\n  <p class=\"MsoNormal\"><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\n  mso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">Respondent.<o:p></o:p></span></p>\r\n  </td>\r\n </tr>\r\n</tbody></table>\r\n\r\n<p class=\"MsoNormal\" align=\"center\" style=\"margin-top:0cm;margin-right:14.4pt;\r\nmargin-bottom:0cm;margin-left:14.4pt;margin-bottom:.0001pt;text-align:center;\r\nmso-layout-grid-align:none;text-autospace:none\"><b><i><span lang=\"EN-US\" style=\"font-size:24.0pt;mso-bidi-font-size:10.0pt\">(1989) 4 SCC 603</span></i></b><b><span style=\"font-size:28.0pt;mso-bidi-font-size:\r\n14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\"><o:p></o:p></span></b></p>\r\n\r\n<p class=\"MsoNormal\"><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-ansi-language:EN-GB\"><o:p> </o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;line-height:200%;mso-layout-grid-align:\r\nnone;text-autospace:none\"><b><span style=\"font-size:14.0pt;line-height:200%;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">K. JAGANNATHA SHETTY, J.</span></b><span style=\"font-size:14.0pt;line-height:200%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">— Special leave granted.</span><span style=\"font-size:14.0pt;line-height:200%;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;mso-layout-grid-align:none;\r\ntext-autospace:none\"><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">2.</span></b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"> The question raised in\r\nthis appeal is whether the agent after revocation of his authority is entitled\r\nto remain in possession of the premises of the principal and interfere with the\r\nbusiness thereof. The learned Single Judge of the Madras High Court in Original\r\nSuit CS No. 1317 of 1988 has granted temporary injunction restraining the\r\nrespondent from interfering with the appellant’s transport business. But the\r\nDivision Bench by judgment delivered on 28-3-1989, vacated that temporary injunction.\r\nThe present appeal is directed against the judgment of the Division Bench.</span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;mso-layout-grid-align:none;\r\ntext-autospace:none\"><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">3.</span></b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"> The facts are\r\nsubstantially undisputed. The appellant Company under the name as Southern\r\nRoadways Ltd. is engaged in the business of transport of goods and parcels to\r\ndifferent places in Southern India. It has appointed commission agents at\r\nvarious stations for the purpose of carrying on its business. S.M. Krishnan\r\nrespondent was one such agent appointed at Madras city. Clause III of the\r\nagreement by which he was appointed provides that the respondent should arrange\r\na suitable godown and engage employees. Clause XI provides for his removal from\r\nservice at any time without notice. It also provides that upon removal of the\r\nagent the company could occupy the godown. The company could also utilise the\r\nservices of employees engaged by the respondent. As per the agreement perhaps\r\nat the suggestion of the respondent, the company took on lease a godown at No.\r\n10, Srinivasan Road, T. Nagar, Madras. The godown was put in possession of the\r\nrespondent for the purpose of carrying on his agency business of the company.</span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;mso-layout-grid-align:none;\r\ntext-autospace:none\"><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">4.</span></b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"> In the course of the\r\ncompany’s audit, it was discovered that the respondent had mismanaged the\r\nbusiness and misappropriated the income of the company. By letter dated 13-10-1988,\r\nthe company terminated his agency with effect from 14-10-1988. He was informed\r\nthat the company would be taking possession of the godown and carrying on the\r\nbusiness on its own. By subsequent letter, he was also intimated that the\r\ncompany has taken possession of the godown on 15-10-1988 and another agent\r\ncalled R. Sundarajan was appointed in his place. The respondent however,\r\nprevented R. Sundarajan and also the company from carrying on business at the\r\ngodown premises. The company, therefore, had to institute a suit for\r\ndeclaration of its right to carry on business in the said premises. Permanent\r\ninjunction restraining the respondent from interfering was also sought for. The\r\nsuit was based on two separate grounds. The first related to legal right of the\r\ncompany to carry on its business after termination of agency of the respondent;\r\nthe second concerned the factum of taking actual possession of the premises on\r\n15-10-1988.</span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;mso-layout-grid-align:none;\r\ntext-autospace:none\"><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">5.</span></b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"> Pending suit, the\r\ncompany moved the High Court for temporary injunction. The temporary injunction\r\nwas for restraining the respondent from interfering with the possession of the\r\npremises and the business thereof. The learned Single Judge (M. Srinivasan, J.)\r\nacceded to that request. The Judge said:</span><span style=\"font-size:14.0pt;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-left:18.0pt;text-align:justify;text-indent:\r\n18.0pt;mso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:\r\n14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">“As pointed out already, in this case, there is no\r\ndenial of the lease arrangement between the owner of the premises and the\r\nplaintiff. The defendant does not claim to be the owner of the premises nor\r\ndoes he put forward any rival title as against the plaintiff. The only claim of\r\nthe defendant is that he is in possession and that he has been paying the rent\r\nto the owner. He does not claim that he took possession as a lessee from the\r\nowner. Though there is a specific averment in the plaint and the affidavit of\r\nthe plaintiff that there is a lease arrangement between the plaintiff and the\r\nowner, there is no denial of the same by the defendant. In these circumstances,\r\nthe defendant cannot claim that he is in possession pursuant to any right\r\nenured in him.”</span><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;text-indent:18.0pt;mso-layout-grid-align:\r\nnone;text-autospace:none\"><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">6.</span></b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"> As to the possession of\r\nthe premises, he said:</span><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-left:18.0pt;text-align:justify;mso-layout-grid-align:\r\nnone;text-autospace:none\"><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">The claim made by the\r\nplaintiff that it took possession on 15-1-1988 is acceptable in view of the\r\nfact that the defendant was never the lessee under the owner of the premises.\r\nThe defendant was only looking after the business as an agent of the plaintiff\r\nand as such he was permitted to enter the premises and he cannot claim\r\nindependent possession.”</span><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"><o:p> </o:p></span></b></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;mso-layout-grid-align:none;\r\ntext-autospace:none\"><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">7.</span></b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"> Finally, he concluded:</span><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-left:18.0pt;text-align:justify;mso-layout-grid-align:\r\nnone;text-autospace:none\"><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">“In the circumstances of\r\nthe case, there can be no doubt that the plaintiff has been in legal and actual\r\npossession of the premises on the date of suit. The fact that the business has\r\nbeen temporarily shifted to another place in view of the threat meted out to\r\nthe plaintiff’s agent will not disentitle the plaintiff to get injunction. The\r\nplaintiff is certainly entitled to carry on its business at No. 10, Srinivasan\r\nRoad, T. Nagar, Madras-600 017, having taken the premises on lease. It is not\r\nopen to the defendant to prevent the plaintiff from carrying on such business.”</span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;mso-layout-grid-align:none;\r\ntext-autospace:none\"><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">8.</span></b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"> The respondent was thus\r\nrestrained by means of temporary injunction from interfering with the company’s\r\ntransport business in goods and parcels at the suit premises.</span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;mso-layout-grid-align:none;\r\ntext-autospace:none\"><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">9.</span></b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"> The respondent took up\r\nthe matter in appeal before the Division Bench of the High Court. The Division\r\nBench consisting of Sathidev and Padmini Jesudurai, JJ., accepted the appeal\r\nand vacated the temporary injunction. The conclusion of learned Judges is\r\nlargely based on the actual possession of the premises claimed by the company.\r\nThey found it hard to accept that claim and observed:</span><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-left:18.0pt;text-align:justify;text-indent:\r\n18.0pt;mso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:\r\n14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">“The plaintiff will not be entitled to the relief\r\nsought for unless it establishes that its claim that possession of the property\r\nwas handed over to it on 15-10-1984 is true. The defendant has consistently\r\nbeen contending that possession was not handed over to the plaintiff on\r\n15-10-1984 and that he continues to be in actual and physical possession of the\r\nproperty even now. No material has been placed before the court to substantiate\r\nthe claim of the plaintiff that possession was taken over on 15-10-1984.”</span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;mso-layout-grid-align:none;\r\ntext-autospace:none\"><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">10.</span></b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"> They continued:</span><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-left:18.0pt;text-align:justify;text-indent:\r\n18.0pt;mso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:\r\n14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">“In the face of these documents and in the absence of\r\nany material to show that possession of the suit property was taken by the\r\nplaintiff on 15-10-1988, it would be impossible for this. Court to grant the\r\nplaintiff, the relief of injunction.”</span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;mso-layout-grid-align:none;\r\ntext-autospace:none\"><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">As to the company’s right\r\nto treat the respondent as trespasser, the Division Bench observed:</span><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-left:18.0pt;text-align:justify;text-indent:\r\n18.0pt;mso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:\r\n14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">“Before the defendant could be characterised as a\r\ntrespasser, the validity of the termination of the agency and the rights of the\r\nparties, following that, have also to be determined and this could be done only\r\nduring trial.”</span><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"><o:p> </o:p></span></b></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;mso-layout-grid-align:none;\r\ntext-autospace:none\"><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">11.</span></b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"> At the outset, we may\r\nstate that we are not so much concerned with the rival claims relating to\r\nactual possession of the suit premises. Indeed, that is quite irrelevant for\r\nthe purpose of determining the rights of the company to carry on its business.\r\nMr Venugopal, learned counsel for the appellant also discreetly did not advert\r\nto that controversy. He, however, rested his case on certain facts which are\r\nproved or agreed. They may be stated as follows:</span><span style=\"font-size:\r\n14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-left:18.0pt;text-align:justify;text-indent:\r\n18.0pt;mso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:\r\n14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">“The company was and is the tenant of the suit\r\npremises and has been paying rent to the owner. The lease in respect of the\r\npremises has been renewed up to 22-11-1993. It was the company which has\r\nexecuted the lease and not the respondent. The respondent as agent was allowed\r\nto remain in possession of the premises. It was only for the purpose of\r\ncarrying on company’s business. His agency has been terminated and his\r\nauthority to act for the company has been put an end to. These facts are indeed\r\nnot disputed. On these facts the contention of counsel is that when the agency\r\nhas been terminated, the respondent has no legal right to remain in the\r\npremises or to interfere with the business activities of the company.”</span><span style=\"font-family: \"Adobe Gothic Std B\", sans-serif; font-size: 14pt;\"> </span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;mso-layout-grid-align:none;\r\ntext-autospace:none\"><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">12.</span></b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"> The force of this\r\nargument cannot be gainsaid. Counsel, in our opinion, appears to be on terra\r\nfirma. The principal has right to carry on business as usual after the removal\r\nof his agent. The courts are rarely willing to imply a term fettering such\r\nfreedom of the principal unless there is some agreement to the contrary. The\r\nagreement between the parties in this case does not confer right on the\r\nrespondent to continue in possession of the suit premises even after\r\ntermination of agency. Nor does it preserve right for him to interfere with the\r\ncompany’s business. On the contrary, it provides that the respondent could be\r\nremoved at any time without notice and after removal the company could carry on\r\nits business as usual. The company under the terms of the agreement is,\r\ntherefore, entitled to assert and exercise its right which cannot be disputed\r\nor denied by the respondent.</span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;mso-layout-grid-align:none;\r\ntext-autospace:none\"><b><u><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB;mso-bidi-font-weight:bold\">13.</span></u><u><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"> Even otherwise, under\r\nlaw revocation of agency by the principal immediately terminates the agent’s\r\nactual authority to act for the principal unless the agent’s authority is\r\ncoupled with an interest as envisaged under Section 202 of the Indian Contract\r\nAct. When agency is revoked, the agent could claim compensation if his case\r\nfalls under Section 205 or could exercise a lien on the principal’s property\r\nunder Section 221. The agent’s lien on principal’s property recognised under\r\nSection 221 could be exercised only when there is no agreement inconsistent\r\nwith the lien. In the present case the terms of the agreement by which the\r\nrespondent was appointed as agent, expressly authorises the company to occupy\r\nthe godown upon revocation of agency. Secondly, the lien in any event, in our\r\nopinion, cannot be utilised or taken advantage of to interfere with principal’s\r\nbusiness activities.</span></u></b><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"><o:p> </o:p></span></b></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;mso-layout-grid-align:none;\r\ntext-autospace:none\"><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">14.</span></b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"> There is yet another\r\nsignificant factor to be borne in mind when we deal with the rights of an\r\nagent. An agent who receives property or money from or for his principal\r\nobtains no interest for himself in the property. When he receives any such\r\nproperty he is bound to keep it separate from his own and that of others. Long\r\nago, Lord Cottenham, L.C. in <i>Foley</i> v. <i>Hill</i><u><span style=\"position:relative;top:-3.0pt;mso-text-raise:3.0pt\">1</span></u> said:</span><span style=\"font-size:14.0pt;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-left:18.0pt;text-align:justify;text-indent:\r\n18.0pt;mso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:\r\n14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">“... So it is with regard to an agent dealing with\r\nproperty; he obtains no interest himself in the subject-matter beyond his\r\nremuneration; he is dealing throughout for another, and though he is not a\r\ntrustee according to the strict technical meaning of the word, he is quasi a\r\ntrustee for that particular transaction for which he is engaged.”</span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;mso-layout-grid-align:none;\r\ntext-autospace:none\"><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">15.</span></b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"> Out of this practice\r\nthere has emerged a rule, which is a normal incident of agency, that an agent\r\ncannot deny principal’s title to property nor he can convert it into any other\r\nkind or use. Fridman’s <i>Law of Agency</i> (5th Edn., p. 150) also supports\r\nthis view:</span><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-left:18.0pt;text-align:justify;text-indent:\r\n18.0pt;mso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:\r\n14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">“<i>Respect of principal’s title</i>: The agent cannot\r\ndeny the title of the principal to goods, money, or land possessed by the agent\r\non behalf of the principal. The possession of the agent is the possession of\r\nthe principal for all purposes, including the acquisition of title under\r\nstatutes of limitation, even where in fact the agent, though in ignorance of\r\nhis claim, is entitled to the land, unless the agent possesses not as agent but\r\non his own behalf, in which event his possession will be personal and not for\r\nhis principal.”</span><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"><o:p> </o:p></span></b></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;mso-layout-grid-align:none;\r\ntext-autospace:none\"><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">16.</span></b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"> As to the nature of\r\nagent’s possession in respect of principal’s property, this Court in a recent\r\njudgment rendered in <i>Chandrakantaben</i> v. <i>Vadilal Bapalal Modi</i><u><span style=\"position:relative;top:-3.0pt;mso-text-raise:3.0pt\">2</span></u> said: (SCC pp. 643-44, para 19)</span><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-left:18.0pt;text-align:justify;text-indent:\r\n18.0pt;mso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:\r\n14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">“It is well settled that the possession of the agent\r\nis the possession of the principal and in view of the fiduciary relationship\r\nDefendant 1 cannot be permitted to claim his own possession. This aspect was\r\nwell emphasised in <i>David Lyell</i> v. <i>John Lawson Kennedy</i><u><span style=\"position:relative;top:-3.0pt;mso-text-raise:3.0pt\">3</span></u> where the agent who was collecting the rent\r\nfrom the tenants on behalf of the owner and depositing it in a separate earmarked\r\naccount continued to do so even after the death of the owner. After more than\r\n12 years of the owner’s death his heir’s assignee brought the action against\r\nthe agent for possession and the agent defendant pleaded adverse possession and\r\nlimitation. The plaintiff succeeded in the first court. But the action was\r\ndismissed by the Court of Appeal. The House of Lords reversed the decision of\r\nthe Court of Appeal and remarked: “For whom, and on whose behalf, were those\r\nrents received after Ann Duncan’s death? Not by the respondent for himself, or\r\non his own behalf, any more than during her lifetime.” Emphasising the\r\nfiduciary character of the agent his possession was likened to that of trustee,\r\na solicitor or an agent receiving the rent under a power of attorney. Another\r\nEnglish case of <i>Williams</i> v. <i>Pott</i><u><span style=\"position:relative;\r\ntop:-3.0pt;mso-text-raise:3.0pt\">4</span></u> arising out of the circumstances similar to\r\nthe present case was more interesting. The agent in that case was the real\r\nowner of the estate but he collected the rents for a considerably long period\r\nas the agent of his principal who was his mother. After the agent’s death his\r\nheir claimed the estate. The mother (the principal) had also by then died after\r\npurporting by her will to devise the disputed lands to the defendants upon\r\ncertain trusts. The claim of the plaintiff was dismissed on the plea of adverse\r\npossession. Lord Romilly, M.R., in his judgment observed that since the\r\npossession of the agent was the possession of the principal, the agent could\r\nnot have made an entry as long as he was in the position of the agent for his\r\nmother, and that he could not get into possession without first resigning his\r\nposition as her agent which he could have done by saying: “The property is\r\nmine; I claim the rents, and I shall apply the rents for my own purposes.” The\r\nagent had thus lost his title by reason of his own possession as agent of the\r\nprincipal.”</span><span style=\"font-family: \"Adobe Gothic Std B\", sans-serif; font-size: 14pt; text-indent: 18pt;\"> </span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;mso-layout-grid-align:none;\r\ntext-autospace:none\"><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">17.</span></b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"> We wish to add that it\r\nis not every agent who is in a fiduciary position vis-</span><span style=\"font-size:14.0pt;font-family:\"MS Gothic\";mso-bidi-font-family:\"MS Gothic\";\r\nmso-ansi-language:EN-GB\">à</span><span style=\"font-size:14.0pt;font-family:\r\n\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;mso-ansi-language:\r\nEN-GB\">-vis his principal. For example if <i>A</i> appoints <i>B</i> to be his\r\nagent merely to sign a memorandum and places no particular trust in <i>B</i>,\r\nthe doctrine of fiduciary relations would not apply. Likewise, where the\r\nprincipal authorises an agent to do particular or specified acts, the doctrine\r\nof fiduciary relation may not arise. What we want to emphasise is, in all cases\r\nof general agency, the relation may be generally fiduciary, but in other kinds\r\nof agencies, the relation may vary with the confidence which the principal\r\nchooses to repose in the agent. It may also depend upon the power which the\r\nagent exercises over the subject-matter under the terms of the contract of\r\nagency or by virtue of the incident of law and usage of the business which the\r\nrelationship implies. Thus the fiduciary element in agency, though the key to\r\nmuch of the law governing this relation, is not the essential element in the\r\nrelation.<u><span style=\"position:relative;top:-3.0pt;mso-text-raise:3.0pt\">5</span></u></span><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"><o:p> </o:p></span></b></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;mso-layout-grid-align:none;\r\ntext-autospace:none\"><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">18.</span></b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"> The crux of the matter\r\nis that an agent holds the principal’s property only on behalf of the\r\nprincipal. He acquires no interest for himself in such property. He cannot deny\r\nprincipal’s title to property. Nor he can convert it into any other kind or\r\nuse. His possession is the possession of the principal for all purposes. As the\r\nKerala High Court in <i>Narayani Amma</i> v. <i>Bhaskaran Pillai</i><u><span style=\"position:relative;top:-3.0pt;mso-text-raise:3.0pt\">6</span></u> observed: (AIR p. 217, para 6)</span><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-left:18.0pt;text-align:justify;text-indent:\r\n18.0pt;mso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:\r\n14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">“The agent has no possession of his own. What is\r\ncalled a caretaker’s possession is the possession of the principal.”</span><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;text-indent:18.0pt;mso-layout-grid-align:\r\nnone;text-autospace:none\"><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">19.</span></b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"> So much is, we think,\r\nestablished law as regards agent’s right to property belonging to the\r\nprincipal. Dr. Chitale, learned counsel for the respondent, however, cited in\r\nthis context, two decisions: (<i>i</i>) <i>Abdul Nabi Sahib</i> v. <i>Bajan\r\nSahib</i><u><span style=\"position:relative;top:-3.0pt;mso-text-raise:3.0pt\">7</span></u> and (<i>ii</i>) <i>Jemma</i> v. <i>Raghu</i><u><span style=\"position:relative;top:-3.0pt;mso-text-raise:3.0pt\">8</span></u>. In the\r\nformer case of the Madras High Court, the suit was for a permanent injunction\r\nrestraining the defendant from interfering with the plaintiff’s peaceful\r\npossession and enjoyment of the suit properties and performance of the\r\nreligious services. The defendant admitted that he was agent of the plaintiff\r\nbut set up title to the property in himself as donee. He has also set up title\r\nby adverse possession. On these claims, Kunhi Raman, J., observed:</span><span style=\"font-family: \"Adobe Gothic Std B\", sans-serif; font-size: 14pt; text-indent: 18pt;\"> </span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;mso-layout-grid-align:none;\r\ntext-autospace:none\"><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"> “Since the plaintiff had not got possession of\r\nthe property, it would not be sufficient to show that he was in constructive\r\npossession and the theory of constructive possession as between the principal\r\nand agent, cannot be relied upon by the principal for the purpose of meeting\r\nthe contention of the description raised on behalf of the defendant, who is the\r\nagent.”</span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;mso-layout-grid-align:none;\r\ntext-autospace:none\"><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">20.</span></b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"> If the defendant in the\r\nabove case, has admitted that he was the agent of the plaintiff and yet set up\r\ntitle to the property of his principal, the above observation may not be\r\nconsistent with the settled principle of law. We have already stated that the\r\nagent acquires no interest in the property of the principal and he cannot,\r\ntherefore, non-suit the principal on the possessory title as agent.</span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;mso-layout-grid-align:none;\r\ntext-autospace:none\"><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">21.</span></b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"> The second case in <i>Jemma</i>\r\nv. <i>Raghu</i><u><span style=\"position:relative;top:-3.0pt;mso-text-raise:\r\n3.0pt\">8</span></u> referred to us is the\r\ndecision of the Orissa High Court. That case dealt with the general principle\r\nthat the plaintiff who is not in possession of the suit premises is not\r\nentitled to relief of injunction. The plaintiff must ask for recovery of\r\npossession. But this principle has no application with regard to dispute\r\nbetween the principal and agent in respect of principal’s property.</span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;mso-layout-grid-align:none;\r\ntext-autospace:none\"><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">22.</span></b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"> In this case, the\r\nrespondent’s possession of the suit premises was on behalf of the company and\r\nnot on his own right. It is, therefore, unnecessary for the company to file a\r\nsuit for recovery of possession. The respondent has no right to remain in\r\npossession of the suit premises after termination of his agency. He has also no\r\nright to interfere with the company’s business. The case, therefore, deserves\r\nthe grant of temporary injunction. The learned Single Judge of the High Court\r\nin our judgment, was justified in issuing the injunction. The Division Bench of\r\nthe High Court was clearly in error in vacating it.</span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;mso-layout-grid-align:none;\r\ntext-autospace:none\"><b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\">23.</span></b><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-bidi-font-family:Verdana;mso-ansi-language:EN-GB\"> In the result, we allow\r\nthe appeal with costs. In reversal of the order of the Division Bench, we\r\nrestore the temporary injunction granted by learned Single Judge of the High\r\nCourt.</span><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;text-indent:18.0pt;mso-layout-grid-align:\r\nnone;text-autospace:none\"><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-ansi-language:EN-GB\"><o:p> </o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-left:36.0pt;text-align:justify;text-indent:\r\n-36.0pt;mso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:\r\n14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">1</span><span style=\"font-size:14.0pt;font-family:\r\n\"Adobe Gothic Std B\",\"sans-serif\";mso-ansi-language:EN-GB\">         </span><span style=\"font-size:14.0pt;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">2 HLC 28 : 1843-60 All ER (Rep) 16, 19</span><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-left:36.0pt;text-align:justify;text-indent:\r\n-36.0pt;mso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:\r\n14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">2</span><span style=\"font-size:14.0pt;font-family:\r\n\"Adobe Gothic Std B\",\"sans-serif\";mso-ansi-language:EN-GB\">         </span><span style=\"font-size:14.0pt;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">(1989) 2 SCC 630</span><span style=\"font-size:14.0pt;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-left:36.0pt;text-align:justify;text-indent:\r\n-36.0pt;mso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:\r\n14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">3</span><span style=\"font-size:14.0pt;font-family:\r\n\"Adobe Gothic Std B\",\"sans-serif\";mso-ansi-language:EN-GB\">         </span><span style=\"font-size:14.0pt;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">(1889) 14 HL (E) 437</span><span style=\"font-size:\r\n14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-left:36.0pt;text-align:justify;text-indent:\r\n-36.0pt;mso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:\r\n14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">4</span><span style=\"font-size:14.0pt;font-family:\r\n\"Adobe Gothic Std B\",\"sans-serif\";mso-ansi-language:EN-GB\">         </span><span style=\"font-size:14.0pt;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">LR 12 Eq Cas 149</span><span style=\"font-size:14.0pt;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-left:36.0pt;text-align:justify;text-indent:\r\n-36.0pt;mso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:\r\n14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">5</span><span style=\"font-size:14.0pt;font-family:\r\n\"Adobe Gothic Std B\",\"sans-serif\";mso-ansi-language:EN-GB\">         </span><span style=\"font-size:14.0pt;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">See 17 <i>Modern Law Review</i> 31-32</span><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-left:36.0pt;text-align:justify;text-indent:\r\n-36.0pt;mso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:\r\n14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">6</span><span style=\"font-size:14.0pt;font-family:\r\n\"Adobe Gothic Std B\",\"sans-serif\";mso-ansi-language:EN-GB\">         </span><span style=\"font-size:14.0pt;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">AIR 1969 Ker 214 : 1968 Ker LJ 738</span><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-left:36.0pt;text-align:justify;text-indent:\r\n-36.0pt;mso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:\r\n14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">7</span><span style=\"font-size:14.0pt;font-family:\r\n\"Adobe Gothic Std B\",\"sans-serif\";mso-ansi-language:EN-GB\">         </span><span style=\"font-size:14.0pt;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">AIR 1944 Mad 221 : (1944) 1 MLJ 87</span><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-left:36.0pt;text-align:justify;text-indent:\r\n-36.0pt;mso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:\r\n14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">8</span><span style=\"font-size:14.0pt;font-family:\r\n\"Adobe Gothic Std B\",\"sans-serif\";mso-ansi-language:EN-GB\">         </span><span style=\"font-size:14.0pt;\r\nfont-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-GB\">AIR 1977 Ori 12 : 42 Cut LT 940</span><span style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";\r\nmso-ansi-language:EN-GB\"><o:p></o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-left:36.0pt;text-align:justify;text-indent:\r\n-36.0pt;mso-layout-grid-align:none;text-autospace:none\"><span style=\"font-size:\r\n14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\";mso-ansi-language:EN-GB\"><o:p> </o:p></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"text-align:justify;mso-layout-grid-align:none;\r\ntext-autospace:none\"><span lang=\"EN-US\" style=\"font-size:14.0pt;font-family:\"Adobe Gothic Std B\",\"sans-serif\"\"><o:p> </o:p></span></p>', 'fb4ef8ed28befdfc52b62b0f1742755a.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1989-10-05', 1, '', '', '2020-11-30 23:37:24', '2021-02-17 17:50:34');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(287, 'vsZyQ36neQftvdXwHVLMimzX0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court deprecates the conduct of National Law School of India University for its discriminatory enforcement of minimum attendance rule. Directs promotion of the student.', '<p><b>“Affidavit borders perjury”. Karnataka High Court deprecates the conduct of National Law School of India University for its discriminatory enforcement of minimum attendance rule. Directs promotion of the student.<br>Dayan Warsi vs The Vice Chancellor NLSIU and another. Writ Petition 9749/2020 decided on 18 December 2020.<br><br>Judgment Link: <br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354337/1/WP9749-20-18-12-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354337/1/WP9749-20-18-12-2020.pdf<br></a><br>Relevant paragraphs: <br></b><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">II (b)…the subject Regulations which wear both a right situation- reason and a clear scope-criterion on their face yield reckon ability and justice; one has to bear&nbsp; in&nbsp; mind&nbsp; that&nbsp; what is being construed are the Campus&nbsp; Regulations&nbsp; and not the Cattle Trespass Act; true it is that, law speaks through language and not music; the rules which are promulgated to regulate &amp; discipline the young minds in educational institutions&nbsp; should&nbsp; sing&nbsp; justice;&nbsp; this&nbsp; happens if a purposive construction&nbsp; based&nbsp; on&nbsp; language,&nbsp; purpose and discretion, is placed on these Regulations that admit a range of possibilities; they also vest some discretion since their purpose does not point to a single, unique legal meaning regardless of myriad circumstances; respondents ought to have used discretion to formulate, as objectively as possible, the purpose at the core of the legal text;&nbsp; however, they have been unjustifiably swayed away by the Rule of Textualism, to the prejudice of the poor student.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Regulation II (5) &amp; (6) provide for condonation of shortage of attendance on non-medical grounds upto a maximum of 20% of the total classes conducted; the condonable range of attendance shortage on medical grounds between 75% &amp; 67% is less than 20% of the total classes; the extent of condonable shortage cannot differ depending upon the varying grounds availing therefor; in other words, if a maximum condonable shortage of 20% on non-medical grounds does not compromise educational excellence, the same shortage on medical grounds too logically does not; if that be so, a&nbsp; Regulation&nbsp; prescribing less than 20%&nbsp; as the condonable limit of shortage cannot&nbsp; be treated as mandatory; it hardly needs to be stated that petitioner’s shortage of attendance by simple arithmetic works out to be far below the maximum condonable extent.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">III (a) The precedents &amp; practice of the University show that the subject Regulations have been treated only as directory, and not mandatory; pursuant&nbsp; to&nbsp; Court’s&nbsp; direction dated 11.11.2020, the Registrar of the University has filed an affidavit admitting that in a case of one particular student, condonation has been&nbsp; granted&nbsp; even when the he had less than prescribed minimum of 67% attendance; in a serious matter like this&nbsp; involving&nbsp; the career of a student, the argument of the kind that “one sparrow makes not the summer” (Shakespeare’s) would not come to the rescue of respondents; it is more so when it is not their case that this condonation was legally&nbsp; inadmissible; for&nbsp; the same reason,&nbsp; the principle that there&nbsp; is no estoppel against law, is not invocable.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">It is noteworthy that this assertion of the petitioner on oath is not disputed by the respondents nor they have produced any record to discount its veracity; in fact, the affidavit filed on behalf of the&nbsp; respondents&nbsp; arguably borders perjury, since information relating to condonation of attendance in respect of above three more students has been withheld from the Writ Court with no justification whatsoever despite a specific direction; ideally speaking the respondent law University ought to&nbsp; have&nbsp; stated about the fact in the very beginning&nbsp; when&nbsp; it&nbsp; had&nbsp; filed its Statement of Objections; this is unjust &amp; unfair, to say the least; however, it is not desirable that on this ground per se,&nbsp; &nbsp; &nbsp; the defence of the respondents be struck off.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">V. As already mentioned above, in several cases the University had granted condonation of shortage of attendance under the very same Regulations; however,&nbsp; in the case of the petitioner, a step-motherly treatment is&nbsp; meted out to his detriment; this is not a happy thing to happen at the hands of the University which enjoys a great academic reputation in the country; the Apex Court in PRINCIPAL, KING GEORGE’S MEDICAL COLLEGE, “16. Whether&nbsp; the&nbsp; Regulations&nbsp; contained in the Ordinance governing admission to the post-graduate course of studies are mandatory or directory is a matter which the University shall have to consider after taking all relevant factors into account like the nature of the requirement, its purpose and the&nbsp; consequences of its relaxation on educational excellence.…One thing, however, must be made&nbsp; clear that&nbsp; &nbsp;if the University considers that any provision is not mandatory, its relaxation in&nbsp; particular cases has to be governed by objective considerations. No public authority, least of all a University which is entrusted with the future of the student community, can pick and choose persons for receiving the benefit of relaxation of the Regulations. In the first place, the rigour of a rule can be relaxed provided such relaxation is permissible under the Regulations or if the rule is directory and not mandatory. …”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">In the above circumstances, this Writ Petition succeeds; a Writ of Certiorari&nbsp; issues&nbsp; quashing&nbsp; the impugned endorsements dated 31.7.2020 &amp; 17.8.2020 respectively at Annexures-H &amp; M; a Writ of Mandamus issues directing the respondents to&nbsp; promote the petitioner&nbsp; to the 4th year B.A. LL.B (Hons) for the academic year 2020-21, forthwith.</span></div><i><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></i></p>', '994b2650c10361d9dcaff7bb9650e0d9.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-18', 1, '', '', '2020-12-23 02:28:05', '2020-12-28 17:02:33'),
(11, 'D1DdibNdsPIqpXQUXY4ciytCw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '(2015) 7 SCC 178', '<span style=\"color: rgb(228, 230, 235); font-family: \"Segoe UI Historic\", \"Segoe UI\", Helvetica, Arial, sans-serif; font-size: 15px; white-space: pre-wrap; background-color: rgb(36, 37, 38);\">(2015) 7 SCC 178. Criminal Trial. Best evidence (CCTV footage) not produced. Adverse presumption drawn. Expert evidence not relied on. Acquittal ordered.</span>', 'cf3be0ab834211fb2030cfd603002415.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-01 19:07:20', '2020-12-22 20:20:23'),
(10, 'XZnCQgrfqLlxTEPzSIO8jgT9f', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Clarification regarding recent Government order dated 11 November 2021 on tuition fee in private educational institutions. ', '<h5><b>The recent Government Order dated 11 November 2021 has given raise to confusion mainly because of its bad reporting and incorrect interpretation. Hence this clarification.&nbsp;</b></h5><h5><b>The earlier Government Order dated 29 January 2021 directed the educational institutions to collect only 70% of the tuition fee for the academic year 2020-2021.&nbsp;</b></h5><h5><b>This Government Order was challenged before the Karnataka High Court by several educational institutions. In Writ Petition 4818 of 2021 all these issues were dealt with and the Hon\'ble Court delivered the judgment on 16 September 2021.&nbsp;</b></h5><h5><b>The Hon\'ble Court read down the Government Order dated 20 January 2021 and&nbsp; held as follows:&nbsp;</b></h5><h5><b><i>\"(i) The petitioner-Institution (school Management of the concerned private unaided school) shall collect annual school fees from their students as fixed under the Act of 1995 for the academic year 2019-20, but by providing deduction of 15 per cent&nbsp; on that amount in lieu of unutilised facilities by the students during the relevant period of academic year 2020-21.</i></b></h5><h5><b><i>(ii) Regardless of the above, it will be open to the petitioners (concerned schools) to give further concession to their students or to evolve a different pattern for giving concession over and above those noted in clause (i) above.</i></b></h5><h5><b><i>(iii) The school Management shall not debar any student from attending either online classes or physical classes on account of non-payment of fees, arrears/outstanding fees including the installments, referred to above, and shall not withhold the results of the examinations of any student on that account.</i></b></h5><h5><b><i>(iv) If any individual request is made by the parent/ward finding it difficult to remit annual fees for the academic year 2020-21 in the above terms, the school Management to consider such representation on case-to- case basis sympathetically.</i></b></h5><h5><b><i>(v) The above arrangement will not affect collection of fees for the academic year 2021-22, as is payable by the students of the concerned school as and when it becomes due and payable.</i></b></h5><h5><b><i>(vi) The school Management shall not withhold the name of any student/candidate for the ensuing Board examinations for Classes X and XII on the ground of non-payment of fee/arrears for the academic year 2020-21, if any, on obtaining undertaking of the concerned parents/students.\"</i></b></h5><h5><b>Please note the stress is on “Karnataka Education Act” meaning thereby the Government Order was issued under the said Act.</b></h5><h5><b>The inclusion of CBSE/ICSE educational institutions within the Karnataka Education Act is challenged before the Karnataka High Court in several Writ Petitions including WP 6185/2019 and connected cases. There is an interim order to the effect that the Government will not precipitate any action against CBSE and ICSE educational institutions during the pendency of the writ petitions.&nbsp;</b></h5><h5><b>The contention of the CBSE and ICSE educational institutions&nbsp; has been that the very GO dated 29 January 2021 did not apply to them having regard to the interim order dated 7 February 2019 which reads as hereunder;</b></h5><h5><b><i>\"In these petitions is challenged the Vires of Karnataka Second Amendment at 2017 whereby Section 124-A is introduced into the Karnataka Education Act 1983 bringing into the clasp of the act on the private unaided educational institutions for certain purposes. Petitioners also have laid a challenge to the vires of Section 48 of the act and further to the validity of 2018 Amendment Rules. The challenge is mainly founded on certain observations of the Constitution Bench of the Apex court in the TMA PAI Case [(2002) 8 SCC 481] and in the P.A Inamdar Case [(2005) 6 SCC 537] which apparently recognize the autonomy of these private educational institutions inter alia in respect of determination of their own fee structure, subject of course, to the rider of non-profiteering. After service of notice, the respondent&nbsp; &nbsp;State has entered appearance through the learned Additional Advocate General, Sri Ponnanna assisted by learned AGA Smt. Pramodhini Kishan. Sri Ponnanna presses into service prima-facie three points to resist grant of any interim relief to the petitioners following points: a) The provisions of the Amendment Act and the Amendment Rules impugned in these writ petitions do not operate proprio vigor and therefore, there is no choate cause of action as understood in the light of the decision of the Apex Court in the case of Kusum Ingots and Alloys vs. Union of India [(2004) 6 SCC 254] vide paragraph Nos. 6 and 26. b) Non-inclusion of these institutions within the ambit of the 1983 Act having been found unconstitutional by a learned Single Judge of this Court, the said judgment having been stayed by the Division Bench in Writ Appeal, the State has come up with this legislative measure inter alia to prevent profiteering. c) Every legislation is presumed to be constitutionally valid in view of decision of the Apex Court in Ramakrishna Dalmia vs. Sri. Justice S R Tendulkar [AIR 1958 SC 538], ordinarily writ courts do not stay the operation of the legislations, and the quasi legislations promulgated thereunder. Learned Senior Advocates, Sriyuths M.R.Nayak and S.Basavaraj together submit that the text of the Act coupled with the Rules made thereunder leave no manner of doubt as to they being effective proprio vigor inasmuch as they prescribe certain exercise to be accomplished by the institutions within the cut off date, i.e., filing of the Audit Reports/Registers before the concerned authorities. They further submit that the Assent granted by the President of India in exercise of power under Article 254(2) of the Constitution of India to overcome the repugnancy was conditional to the advantage of the private unaided educational Institutions and that this aspect has not been adverted to, while enacting the amendment and promulgating the Rules, that are now in challenge. The matter requires deeper consideration and both the sides have agreed that the matter may be taken up for final disposal on before long. The submission of Sri. M.R.Nayak, learned Senior Advocate appearing for the petitioners that if the State intends to file Objections, a copy thereof may be served on him in advance, is noted. The assurance of the learned Additional Advocate General that till the next date of hearing, no precipitatory or coercive action would be taken against the petitioner-Institutions is placed on record.&nbsp;</i></b></h5><h5><b>Hence, when the Government Order dated 29 January 2021 was issued under the Karnataka Education Act, there was already an interim order in Writ Petition 6185/2019 and hence the very GO was not applicable to CBSE/ICSE Schools who were before the Hon\'ble Court.&nbsp;</b></h5><h5><b>Now, the present Government Order dated 11 November 2021 simply reiterates the order of the Hon\'ble Karnataka High Court. Instead of 70% as mandated under the Government Order dated 29 January 2021, the present GO mandates collection of 85% tuition fee. Please note this GO is applicable only to the academic year 2020-2021 and does not apply to subsequent academic years.&nbsp;</b></h5><h5><b>However, the present GO says the educational institutions&nbsp; cannot collect even the other charges including voluntary charges. To this effect, the order is bad. However, if such amounts are already collected, there is no need to refund the amount as the GO does not say anything about refund of these amounts.&nbsp;</b></h5><h5><b>Please note that those schools who are not parties to the writ petition before the High Court in WP 6185/2019 are bound by the present GO. They are bound to collect only 85% tuition fee for the academic year 2020-2021. They are also bound to either refund excess fee or to adjust the same for the next academic year.&nbsp;</b></h5><h5><b>Please note that there is no Order to refund or adjust the amount paid under voluntary category or any amount other than tuition fee.&nbsp;</b></h5><h5><b><br></b></h5><h5><br></h5>', '68495e444e4f76af90ea34225f9be647.JPG', '254dc143dfcfb70649c1817e4c13b50a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-01 18:27:25', '2021-11-14 18:10:34'),
(12, 'cmCDDA2lz3D0eLBPkCloCZGyy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '(2015) 8 SCC 336.', '<span style=\"color: rgb(5, 5, 5); font-family: \"Segoe UI Historic\", \"Segoe UI\", Helvetica, Arial, sans-serif; font-size: 15px; white-space: pre-wrap; background-color: rgb(255, 255, 255);\">(2015) 8 SCC 336. Hindu Marriage Act. \"Cruelty\". Wife abusing husband, calling him son of a prostitute etc are not normal acts. Cruelty established. Divorce granted.</span><br>', '9555a3c49a863f761ca8ae8dfaa4f747.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-01 19:09:51', '2020-12-22 20:19:56'),
(13, '3FhPySCgYCWR296COI3wyYsit', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '(2015) 4 SCC 196', '<a class=\"oajrlxb2 g5ia77u1 qu0x051f esr5mh6w e9989ue4 r7d6kgcz rq0escxv nhd2j8a9 a8c37x1j p7hjln8o kvgmc6g5 cxmmr5t8 oygrvhab hcukyx3x jb3vyjys rz4wbd8a qt6c0cv9 a8nywdso i1ao9s8h esuyzwwr f1sip0of lzcic4wl gmql0nx0 p8dawk7l\" href=\"https://www.facebook.com/groups/1004611326222954/permalink/1068501186500634/\" role=\"link\" tabindex=\"0\" style=\"color: inherit; cursor: pointer; outline: none; list-style: none; border-width: 0px; border-style: initial; border-color: initial; display: block; padding: 0px; margin: 0px; touch-action: manipulation; background-color: rgb(255, 255, 255); -webkit-tap-highlight-color: transparent; font-family: \"Segoe UI Historic\", \"Segoe UI\", Helvetica, Arial, sans-serif; font-size: 12px; animation-name: none !important; transition-property: none !important;\"><div class=\"rq0escxv l9j0dhe7 du4w35lb j83agx80 cbu4d94t pfnyh3mw\" style=\"flex-direction: column; z-index: 0; display: flex; position: relative; flex-shrink: 0; font-family: inherit; animation-name: none !important; transition-property: none !important;\"><div class=\"rq0escxv l9j0dhe7 du4w35lb j83agx80 cbu4d94t buofh1pr tgvbjcpo\" style=\"flex-grow: 1; flex-direction: column; z-index: 0; display: flex; position: relative; min-height: 0px; font-family: inherit; animation-name: none !important; transition-property: none !important;\"><div class=\"rq0escxv l9j0dhe7 du4w35lb j83agx80 cbu4d94t pfnyh3mw d2edcug0\" style=\"flex-direction: column; max-width: 100%; z-index: 0; display: flex; position: relative; flex-shrink: 0; font-family: inherit; animation-name: none !important; transition-property: none !important;\"><div class=\"rq0escxv l9j0dhe7 du4w35lb j83agx80 pfnyh3mw i1fnvgqd gs1a9yip owycx6da btwxx1t3 jb3vyjys b5q2rw42 lq239pai mysgfdmx hddg9phg\" style=\"margin: -6px; flex-flow: row nowrap; z-index: 0; align-items: stretch; justify-content: space-between; display: flex; padding-top: 0px; position: relative; flex-shrink: 0; font-family: inherit; animation-name: none !important; transition-property: none !important;\"><div class=\"rq0escxv l9j0dhe7 du4w35lb j83agx80 cbu4d94t g5gj957u d2edcug0 hpfvmrgz rj1gh0hx buofh1pr p8fzw8mz pcp91wgn iuny7tx3 ipjc6fyt\" style=\"flex: 1 1 0px; flex-direction: column; max-width: 100%; z-index: 0; min-width: 0px; padding: 6px; display: flex; position: relative; font-family: inherit; animation-name: none !important; transition-property: none !important;\"><span class=\"d2edcug0 hpfvmrgz qv66sw1b c1et5uql rrkovp55 a8c37x1j keod5gw0 nxhoafnm aigsh9s9 d3f4x2em fe6kdd0r mau55g9w c8b282yb iv3no6db jq4qci2q a3bd9o3v knj5qynh oo9gr5id\" dir=\"auto\" style=\"line-height: 1.3333; display: block; overflow-wrap: break-word; max-width: 100%; min-width: 0px; font-size: 0.9375rem; color: var(--primary-text); word-break: break-word; font-family: inherit; animation-name: none !important; transition-property: none !important;\"><span class=\"a8c37x1j ni8dbmo4 stjgntxs l9j0dhe7\" style=\"display: -webkit-box; position: relative; overflow: hidden; animation-name: none !important; transition-property: none !important; font-family: inherit; -webkit-box-orient: vertical; -webkit-line-clamp: 4;\">(2015) 4 SCC 196 -Decree challenged on the ground of fraud. Evidence required. When can a decree be set aside on the ground of fraud on Court. In this case fraud on court not established. <span style=\"animation-name: none !important; transition-property: none !important; font-family: inherit;\"><span class=\"rfua0xdk pmk7jnqg stjgntxs ni8dbmo4 ay7djpcl q45zohi1\" style=\"height: 1px; overflow: hidden; position: absolute; clip: rect(0px, 0px, 0px, 0px); width: 1px; animation-name: none !important; transition-property: none !important; font-family: inherit;\"> </span><span aria-hidden=\"true\" style=\"animation-name: none !important; transition-property: none !important; font-family: inherit;\">· </span></span></span></span></div></div></div></div></div></a>', '4671f732cddaa5c6c7c4c0259c02683a.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-01 19:19:13', '2020-12-22 20:19:41'),
(14, 'uUKAOzfOGoPN1wp0eQ9cAWrot', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '(2015) 6 SCC 287', '<br>', '03e82dbf115491bfbd659488d86fdfb5.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-01 19:27:32', '2020-12-22 20:19:24'),
(15, 'kGFTxqA9tnjmJWmJbmtnEZ6cZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Trial. Consideration for the issuance of a search warrant in order to search a smartphone or computer system. Explained by the Karnataka High Court. 12 March 2021', '<h4><span style=\"font-size: 15px;\">Criminal Trial. What is the consideration for the issuance of a search warrant in order to search a smartphone or computer system.? Explained by the Karnataka High Court. 12 March 2021. Please click the following link to read the post.&nbsp;<br></span><span style=\"font-size: 15px;\"><a href=\"https://dakshalegal.com/judgements/actionRead/MRdFOROIjVzZXU66DGOO7Q8Z0\" target=\"_blank\">https://dakshalegal.com/judgements/actionRead/MRdFOROIjVzZXU66DGOO7Q8Z0</a></span></h4>', '92ae0d30768c5b965366a2f753811562.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-12', 1, '', '', '2020-12-01 19:33:32', '2021-03-14 17:52:22'),
(575, 'QNgz3arjcTojBR2QicVhyrurJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Succession Act 1956. Karnataka amendment to Section 6 is applicable between 30:7:1994  to 8.9.2005. The Central amendment is applicable from 9:9:2005. Karnataka High Court.  15 May 2020', '<h4><b style=\"background-color: rgb(255, 255, 0);\">NOTE: </b>Though the questions raised and answered in this case refer to the Supreme Court judgment in Prakash vs Phulvathi, the position is NOT changed after the Supreme Court Judgment in Vineeta Sharma vs Rakesh Sharma  </h4><h4>Padmavathi and another vs Jayamma and others. </h4><h4>Regular First Appeal 916 of 2014 decided on 15 May 2020. </h4><h4>Justice B.V.Nagarathna and Justice Suraj Govindaraj. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/331256/1/RFA916-14-15-05-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/331256/1/RFA916-14-15-05-2020.pdf</a><br>Relevant paragraphs: <br>19. On the basis of the above, the points to be considered by this Court would be as under:</h4><h4 style=\"margin-left: 25px;\"><i>i) Whether the limitation period prescribed with respect to the filing of cross objection in terms of Order 41 Rule 22 of CPC is to be strictly construed, even when the cross objector had taken up the very same contention in the proceedings before the Trial Court?<br>ii) What is the nature of the Suit Schedule Properties, are they Joint Family Properties or individual properties of 1st Defendant?<br>iii) Whether the Karnataka amendment to the HSA in terms of Section 6-A, 6-C would apply from 30.07.1994 to 08.9.2005 in view of the ratio laid down in Prakash vs. Phulawati (supra) and 2005 amendment is prospective and would apply from 9.09.2005 ? <br>iv) Whether the Defendants have proved that there was a marriage solemnised between the 2nd Defendant – Jagadish Kumar and Manjula and 16th and 17th Defendants are their children?<br>v) Whether under Section 16 of the Hindu Marriage Act, illegitimate children are entitled to a share in ancestral or coparcenary property along with other legitimate heirs?<br>vi) What order?</i></h4><h4>42. The Apex Court in Banarasi vs. Ram Phal reported in [(2003) 9 SCC 606] has held that even as per amended Order XLII R 22(1) of the CPC, a party, in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross-objections. However, insertion made in the text of Sub-rule (1) makes it permissible to file a cross objection against a finding. The Apex Court further went on to hold that the respondent may defend himself without filing any cross objection to the extent to which the decree is in his favour. However, if he proposes to attack any part of the decree, he must make cross objection. Hence, the finding of the trial Court in respect of Schedule-A property being against the interest of the cross objectors, cross objectors are entitled to challenge the same by filing separate cross-objections. The Hon’ble Apex Court in Badru vs.  NTPC  Limited  [(2019)  SCC  online  SC 859] has also held that even if the appeals were dismissed, the cross-objections had to be separately dealt with on merits notwithstanding the dismissal of the appeals.</h4><h4>43.As regards delay in filing cross objections, the Hon’ble Apex Court in Mahadev Govind Garge vs. Land Acquisition Officer [(2011) 6 SCC 321]at paragraph 34 has held as under:<br></h4><h4 style=\"margin-left: 25px;\"><i>“34. Strict construction of a procedural law is called for where there is complete extinguishment of rights, as opposed to the cases where discretion is vested in the courts to balance the equities between the parties to meet the ends of justice which would invite liberal construction. For example, under Order 41 Rule 22 of the Code, cross-objections can be filed at any subsequent time, even after expiry of statutory period of one month, as may be allowed by the court. Thus,  it  is  evidently  clear that there  is  no  complete  or  indefeasible extinguishment of right to file cross-objections  after   the   expiry   of statutory  period   of   limitation   provided under the said provision.  Cross-objections within the scheme of Order 41 Rule 22 of the Code are to be treated as separate appeal and must be disposed of on same principles in accordance with the provisions of Order 41 of the Code.”</i></h4><h4>45. <i>(after referring to other judgments)</i><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span>...<span style=\"background-color: rgb(255, 255, 0);\">.<b>In view of the above Point No (i) is answered by holding that the limitation period prescribed with respect to the filing of cross objection in terms of Order 41 Rule 22 of CPC is not to be strictly construed, but a liberal view in regard thereto is to be taken moreso when the cross objector/s had taken up the very same contention in the proceedings before the trial Court. </b></span></h4><h4 style=\"\">46.14. The admissions of the parties lead to an inescapable conclusion that the Schedule B and C (C1+C2) Properties are joint family properties, there would be no requirement to refer to any of the decisions relied on by Sri.Surana. <b style=\"background-color: rgb(255, 255, 0);\">Once the parties admit that the properties are joint family properties, even though they were bought in the name of mother-1st Defendant, the protection under Section 14 would not come into operation as discussed above and the properties would have to be held to be joint family properties.</b><br><br><span style=\"background-color: rgb(255, 255, 0);\"><b>Whether the Karnataka amendment to the HSA in terms of Section 6-A, 6-C would apply from 30.07.1994 to 08.9.2005 in view of the ratio laid down in Prakash vs. Phulawati (supra) and 2005 amendment is prospective and would apply from 9.09.2005 ?</b></span> <br>60.<span style=\"white-space:pre\">	</span>The amendment by way of Karnataka Act came into force with effect from 30.07.1994, as such, any succession post 30.07.1994 in the State of Karnataka would be governed by HSA as amended by Karnataka Amendment:</h4><h4 style=\"margin-left: 25px;\"><i>6-A.Equal rights to daughter in coparcenary property.—Notwithstanding anything contained in Section 6 of this Act:—<br>(a) in a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;<br>(b) at a partition in such joint Hindu family the coparcenary property shall be so divided as to allot to a daughter the same share as is allottable to a son:<br>Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter:<br>Provided further that the share allottable to the predeceased child of the predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be;<br>(c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;<br>(d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of the Hindu Succession (Karnataka Amendment) Act, 1990.</i></h4><h4 style=\"\">61. It is this amended provision which was applicable in Karnataka till the Parliament amended the HSA by 2005 Act, the said amendment coming into force in the year 2005, i.e. with effect from 9.09.2005. In view of the coming into force of the Central amendment, there was some divergence of judicial opinion as to the applicability of the State amendment, the period to which it is applicable and from the period when the Central enactment would come into force.<br>66.In view of the above discussion, we are of the opinion that there are three-time lines which would be in operation in the State of Karnataka, viz.,<br></h4><h4 style=\"margin-left: 25px;\"><b style=\"background-color: rgb(255, 255, 0);\">(i) From 1956- 29.07.1994 – when unamended Section 6 of HSA would be applicable;<br>(ii) 30.07.1994 - 8.9.2005 – When the Karnataka amendment to the HSA would be applicable; and<br>(iii)Post 9.09.2005 – subject to the conditions in Phulavati’s case (supra) being satisfied, Section 6 of the HSA Act as amended by the Central Amendment Act, would be applicable.</b></h4><h4 style=\"\">71. In view of the above we answer Point No. (iii) by holding that the Karnataka amendment to the HSA in terms of Section 6-A, 6-C would apply from 30.07.1994 to 08.9.2005 in view of the ratio laid do<span style=\"background-color: rgb(255, 255, 0);\">wn in Prakash vs. Phulawati (supra), the Central Amendment would apply from 9.09.2005, the applicability being predicated on when succession opens and availability of the property/ies for partition, i.e., they are neither partitioned or sold by way of a registered instrument.</span></h4><h4 style=\"\">76. A live-in relationship is a formal relationship between a man and woman and in recent times arises out of they not wanting to be burdened with the responsibility of a married life or enter into such relationship as a matter of convenience or they may be forced to live in without marriage, one of the reasons being the prior marriage of one of them, which was still in force and a second marriage resulting in penal consequences.<br>77. A Court of Law by being predictable though brings stability to life and society cannot be blind or ignore the happenings in the society, more so when these kinds of relationships have been increasing over the last two or three decades, hence law needs to adapt to the changing times.<br>78. Having a sexual relationship outside marriage with a married woman was considered to be adultery and punishable, the courts as also the legislature in its wisdom have now decriminalised adultery after having taken into consideration the prevalent times and circumstances, changing mores, as also the changing morality in the society. So long as a man and woman live together harmoniously, the law would not have a role to play. However, if there is disharmony in terms of domestic violence, Domestic Violence Act would apply even in respect of a relationship where there is no marriage as long as the man and woman are living together in a relationship akin to a marriage over a period of time and have held themselves out as Husband and Wife as held by the Apex court in D.Velu Samy vs. D.Patchaiammal, [(2010) 10 SCC 469] and  Indra  Sarma  vs.  V.K.V.  Sarma [(2013) 15 SCC 755], the Apex  court  in  the above decisions granted maintenance to the woman in the relationship by considering that the relationship was in the “nature of marriage”.<br>79. The complication arises when this man and woman have children, the succession rights of those children born out of the relationship which has no name. The children were earlier referred to as bastards, subsequently, to be politically correct, they were referred to as ‘illegitimate children’ and now in some jurisdictions, they are referred to as ‘non-marital children’. The decision of the man and woman to have a child out of the wedlock has grave legal and societal consequences at least insofar as the child is concerned. The basic premise of having a child being to take forward one’s lineage, thereby vesting in the children the succession rights in the properties of both the father and the mother. Insofar as the mother’s property is concerned, there is no dispute since the parentage is easily traceable and established. However, in relation to father and the relationship, the same can, unless admitted, only be adjudicated on the basis of evidence tendered by witnesses or on certain presumptions. Section 16 of the Hindu Marriage Act has recognized, the above socio- economic-legal problem was amended in the year 1976 in order to provide a right to such non-marital children to succeed to properties of the father even though the marriage between the father and the mother of such children was void, so long as there is a marriage between the father and mother.<br>80. As aforestated there are two aspects relating to such live- in relationships, one is as regards the disharmony and/or maintenance of the live in partners in the event of they falling out and separating and the other being inheritance rights of the children born out of such a relationship.<br>81. In a country like India where marriage was not compulsorily registerable, it is very difficult to prove marriage, when denied, without reference to third party evidence, both oral and documentary. In many such situations, it is not possible to have such evidence on record, hence by virtue of Section 114 of the Evidence Act, there is a presumption of marriage which could be used to recognize such relationships.<br>82. In Piers vs. Piers [(1849)2  HL  Cas  331],  it  was observed that the question of the validity of  marriage could not be tried like any other issue of fact independent of presumption. The Court held that law would presume in favour of marriage and such presumption could only be rebutted by strong and satisfactory evidence.<br>83. In Lt. C.W.Campbell  vs.  John  A.G.  Campbell  [(1867)  LR 2 HL 269], the House of Lords held that cohabitation, with the required repute, as husband and wife, was proof that the parties between themselves had mutually contracted the matrimonial relation. A relationship which may be adulterous at the beginning may become matrimonial by consent. This may be evidenced by habit and repute.<br>110. In view of the aforesaid analysis and reasoning, we answer the above points as under:<br>110.1.The defendants have proved that there was a marriage solemnised between the 2nd Defendant – Jagadish Kumar and Manjula as also that 16th and 17th Defendants are their children. <br><span style=\"background-color: rgb(255, 255, 0);\"><b>Per Justice Nagarathna J.: </b></span>(<i>After thorough discussion on legal aspects and historical antecedents) </i>50.In the circumstances, it is concluded that, when the parties are in a domestic relationship which is in the nature of marriage and it is found to be so, even in the absence of solemnisation of marriage as per Section 7 of the Act, the children born out of such a relationship also need legislative and social protection. Thus, it is for the Parliament to determine in what way such protection may be extended in the form of separate legislation or by amendment of Section 16 of the Act. This is because, the expression marriage has a specific connotation under Section 5 and 7 of the Act and therefore the same cannot be stretched or given a wider connotation by adding words to the expression marriage as it would be doing violence to the language and intendment of the said Section. Further, Courts have to be cautious and vary of interpreting such provisions in an elastic manner or with wide connotation as it may lead to confusing signals to Indian society which is already in a state of transition on account of global influences. Further, one cannot brush aside the fact that a Hindu marriage is a sacrament and has a unique place in society and a vast majority of Hindu society values the institution of marriage, legitimacy of children and rearing a family as part of ‘Samskara’ of human life, which cannot be done away with or brushed aside merely because some sections of the society may not have faith in such ideas or social institutions. Therefore, instead of Courts coming to the rescue of such innocent children, it is best left to the Parliament to consider ways and means in which they could have the protection of law.<br><br><br><br></h4>', '58a6c6bae581e66bcb62d96f5113dd57.PNG', '395ac92d67ed1dfe7be882bf5ec57fe8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-05-15', 1, '', '', '2021-03-14 20:01:26', '2021-03-14 22:02:08'),
(16, 'tIKCoJHDWTCHw7cTEZLklKFky', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Daksha Legal Drafting - Wills. ', '<p><b>PDF document containing different form of Wills enclosed.&nbsp;</b></p>', '8cc7a6a6a66aa8a447b1ee3beb4f4873.JPG', '5bb104f69f74eb5a780e7792e87d464d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-13', 1, '', '', '2020-12-01 19:40:02', '2021-08-13 18:19:58'),
(17, 'iyssbdS4rOTTw9y0U6rBFf3aF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '(2015) 10 SCC 390', '<div class=\"kvgmc6g5 cxmmr5t8 oygrvhab hcukyx3x c1et5uql ii04i59q\" style=\"overflow-wrap: break-word; margin: 0px; white-space: pre-wrap; font-family: \"Segoe UI Historic\", \"Segoe UI\", Helvetica, Arial, sans-serif; color: rgb(5, 5, 5); font-size: 15px; background-color: rgb(255, 255, 255); animation-name: none !important; transition-property: none !important;\"><div dir=\"auto\" style=\"font-family: inherit; animation-name: none !important; transition-property: none !important;\"><br></div></div>', 'a251c03eb84ff872490a45bc5472565f.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-01 19:44:30', '2020-12-22 20:18:30'),
(18, '7hDLbzYnv6Mo516zVCmz41RNa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. The Court can NOT per se issue any directions to the accused to furnish the password passcode or Biometrics and direction to cooperate would not amount to a direction to furnish such details Karnataka High Court. 12 March 2021. ', '<h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 16px;\"><b>Criminal Law. The Court cannot per se issue any directions to the accused to furnish the password, passcode or Biometrics and direction to cooperate would not amount to a direction to furnish password, passcode or Biometrics. Karnataka High Court. Click the following link to read the post. </b></span></font></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 16px;\"><b><a href=\"https://dakshalegal.com/judgements/actionRead/MRdFOROIjVzZXU66DGOO7Q8Z0\" target=\"_blank\">https://dakshalegal.com/judgements/actionRead/MRdFOROIjVzZXU66DGOO7Q8Z0</a></b></span></font></h4>\r\n\r\n<p style=\"text-align:justify;line-height:18.0pt;background:white\"></p>', '7a934b15e78779f34d976268181e46be.PNG', '005947ba6fe0f9b3de5528b5dd3d71a6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-12', 1, '', '', '2020-12-01 21:10:52', '2021-03-14 17:37:22');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(576, 'Ug4MkJs2PofFAX3ZAdzUllxHH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Succession Act 1956. Section 14 does NOT apply when there is admission by the woman and evidence on record that the property was purchased in her name from out of joint family funds. Karnataka High Court. 15 March 2020', '<h4><span style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 0);\"><i>See paragraph 46.14</i></span></h4><h4>Padmavathi and another vs Jayamma and others.<br></h4><h4>Regular First Appeal 916 of 2014 decided on 15 May 2020.</h4><h4>Justice B.V.Nagarathna and Justice Suraj Govindaraj.</h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/331256/1/RFA916-14-15-05-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/331256/1/RFA916-14-15-05-2020.pdf</a></h4><h4>Relevant paragraphs:&nbsp;</h4><h4>19. On the basis of the above, the points to be considered by this Court would be as under:</h4><h4>i) Whether the limitation period prescribed with respect to the filing of cross objection in terms of Order 41 Rule 22 of CPC is to be strictly construed, even when the cross objector had taken up the very same contention in the proceedings before the Trial Court?</h4><h4>ii) What is the nature of the Suit Schedule Properties, are they Joint Family Properties or individual properties of 1st Defendant?</h4><h4>iii) Whether the Karnataka amendment to the HSA in terms of Section 6-A, 6-C would apply from 30.07.1994 to 08.9.2005 in view of the ratio laid down in Prakash vs. Phulawati (supra) and 2005 amendment is prospective and would apply from 9.09.2005 ?&nbsp;</h4><h4>iv) Whether the Defendants have proved that there was a marriage solemnised between the 2nd Defendant – Jagadish Kumar and Manjula and 16th and 17th Defendants are their children?</h4><h4>v) Whether under Section 16 of the Hindu Marriage Act, illegitimate children are entitled to a share in ancestral or coparcenary property along with other legitimate heirs?</h4><h4>vi) What order?</h4><h4>42. The Apex Court in Banarasi vs. Ram Phal reported in [(2003) 9 SCC 606] has held that even as per amended Order XLII R 22(1) of the CPC, a party, in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross-objections. However, insertion made in the text of Sub-rule (1) makes it permissible to file a cross objection against a finding. The Apex Court further went on to hold that the respondent may defend himself without filing any cross objection to the extent to which the decree is in his favour. However, if he proposes to attack any part of the decree, he must make cross objection. Hence, the finding of the trial Court in respect of Schedule-A property being against the interest of the cross objectors, cross objectors are entitled to challenge the same by filing separate cross-objections. The Hon’ble Apex Court in Badru vs.&nbsp; NTPC&nbsp; Limited&nbsp; [(2019)&nbsp; SCC&nbsp; online&nbsp; SC 859] has also held that even if the appeals were dismissed, the cross-objections had to be separately dealt with on merits notwithstanding the dismissal of the appeals.</h4><h4>43.As regards delay in filing cross objections, the Hon’ble Apex Court in Mahadev Govind Garge vs. Land Acquisition Officer [(2011) 6 SCC 321]at paragraph 34 has held as under:</h4><h4>“34. Strict construction of a procedural law is called for where there is complete extinguishment of rights, as opposed to the cases where discretion is vested in the courts to balance the equities between the parties to meet the ends of justice which would invite liberal construction. For example, under Order 41 Rule 22 of the Code, cross-objections can be filed at any subsequent time, even after expiry of statutory period of one month, as may be allowed by the court. Thus,&nbsp; it&nbsp; is&nbsp; evidently&nbsp; clear that there&nbsp; is&nbsp; no&nbsp; complete&nbsp; or&nbsp; indefeasible extinguishment of right to file cross-objections&nbsp; after&nbsp; &nbsp;the&nbsp; &nbsp;expiry&nbsp; &nbsp;of statutory&nbsp; period&nbsp; &nbsp;of&nbsp; &nbsp;limitation&nbsp; &nbsp;provided under the said provision.&nbsp; Cross-objections within the scheme of Order 41 Rule 22 of the Code are to be treated as separate appeal and must be disposed of on same principles in accordance with the provisions of Order 41 of the Code.”</h4><h4>45. (after referring to other judgments)<span style=\"white-space:pre\">	</span>....In view of the above Point No (i) is answered by holding that the limitation period prescribed with respect to the filing of cross objection in terms of Order 41 Rule 22 of CPC is not to be strictly construed, but a liberal view in regard thereto is to be taken moreso when the cross objector/s had taken up the very same contention in the proceedings before the trial Court.&nbsp;</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">46.14. The admissions of the parties lead to an inescapable conclusion that the Schedule B and C (C1+C2) Properties are joint family properties, there would be no requirement to refer to any of the decisions relied on by Sri.Surana. Once the parties admit that the properties are joint family properties, even though they were bought in the name of mother-1st Defendant, the protection under Section 14 would not come into operation as discussed above and the properties would have to be held to be joint family properties.</b></h4><h4><br></h4><h4>Whether the Karnataka amendment to the HSA in terms of Section 6-A, 6-C would apply from 30.07.1994 to 08.9.2005 in view of the ratio laid down in Prakash vs. Phulawati (supra) and 2005 amendment is prospective and would apply from 9.09.2005 ?&nbsp;</h4><h4>60.<span style=\"white-space:pre\">	</span>The amendment by way of Karnataka Act came into force with effect from 30.07.1994, as such, any succession post 30.07.1994 in the State of Karnataka would be governed by HSA as amended by Karnataka Amendment:</h4><h4>6-A.Equal rights to daughter in coparcenary property.—Notwithstanding anything contained in Section 6 of this Act:—</h4><h4>(a) in a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;</h4><h4>(b) at a partition in such joint Hindu family the coparcenary property shall be so divided as to allot to a daughter the same share as is allottable to a son:</h4><h4>Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter:</h4><h4>Provided further that the share allottable to the predeceased child of the predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be;</h4><h4>(c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;</h4><h4>(d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of the Hindu Succession (Karnataka Amendment) Act, 1990.</h4><h4>61. It is this amended provision which was applicable in Karnataka till the Parliament amended the HSA by 2005 Act, the said amendment coming into force in the year 2005, i.e. with effect from 9.09.2005. In view of the coming into force of the Central amendment, there was some divergence of judicial opinion as to the applicability of the State amendment, the period to which it is applicable and from the period when the Central enactment would come into force.</h4><h4>66.In view of the above discussion, we are of the opinion that there are three-time lines which would be in operation in the State of Karnataka, viz.,</h4><h4>(i) From 1956- 29.07.1994 – when unamended Section 6 of HSA would be applicable;</h4><h4>(ii) 30.07.1994 - 8.9.2005 – When the Karnataka amendment to the HSA would be applicable; and</h4><h4>(iii)Post 9.09.2005 – subject to the conditions in Phulavati’s case (supra) being satisfied, Section 6 of the HSA Act as amended by the Central Amendment Act, would be applicable.</h4><h4>71. In view of the above we answer Point No. (iii) by holding that the Karnataka amendment to the HSA in terms of Section 6-A, 6-C would apply from 30.07.1994 to 08.9.2005 in view of the ratio laid down in Prakash vs. Phulawati (supra), the Central Amendment would apply from 9.09.2005, the applicability being predicated on when succession opens and availability of the property/ies for partition, i.e., they are neither partitioned or sold by way of a registered instrument.</h4><h4>76. A live-in relationship is a formal relationship between a man and woman and in recent times arises out of they not wanting to be burdened with the responsibility of a married life or enter into such relationship as a matter of convenience or they may be forced to live in without marriage, one of the reasons being the prior marriage of one of them, which was still in force and a second marriage resulting in penal consequences.</h4><h4>77. A Court of Law by being predictable though brings stability to life and society cannot be blind or ignore the happenings in the society, more so when these kinds of relationships have been increasing over the last two or three decades, hence law needs to adapt to the changing times.</h4><h4>78. Having a sexual relationship outside marriage with a married woman was considered to be adultery and punishable, the courts as also the legislature in its wisdom have now decriminalised adultery after having taken into consideration the prevalent times and circumstances, changing mores, as also the changing morality in the society. So long as a man and woman live together harmoniously, the law would not have a role to play. However, if there is disharmony in terms of domestic violence, Domestic Violence Act would apply even in respect of a relationship where there is no marriage as long as the man and woman are living together in a relationship akin to a marriage over a period of time and have held themselves out as Husband and Wife as held by the Apex court in D.Velu Samy vs. D.Patchaiammal, [(2010) 10 SCC 469] and&nbsp; Indra&nbsp; Sarma&nbsp; vs.&nbsp; V.K.V.&nbsp; Sarma [(2013) 15 SCC 755], the Apex&nbsp; court&nbsp; in&nbsp; the above decisions granted maintenance to the woman in the relationship by considering that the relationship was in the “nature of marriage”.</h4><h4>79. The complication arises when this man and woman have children, the succession rights of those children born out of the relationship which has no name. The children were earlier referred to as bastards, subsequently, to be politically correct, they were referred to as ‘illegitimate children’ and now in some jurisdictions, they are referred to as ‘non-marital children’. The decision of the man and woman to have a child out of the wedlock has grave legal and societal consequences at least insofar as the child is concerned. The basic premise of having a child being to take forward one’s lineage, thereby vesting in the children the succession rights in the properties of both the father and the mother. Insofar as the mother’s property is concerned, there is no dispute since the parentage is easily traceable and established. However, in relation to father and the relationship, the same can, unless admitted, only be adjudicated on the basis of evidence tendered by witnesses or on certain presumptions. Section 16 of the Hindu Marriage Act has recognized, the above socio- economic-legal problem was amended in the year 1976 in order to provide a right to such non-marital children to succeed to properties of the father even though the marriage between the father and the mother of such children was void, so long as there is a marriage between the father and mother.</h4><h4>80. As aforestated there are two aspects relating to such live- in relationships, one is as regards the disharmony and/or maintenance of the live in partners in the event of they falling out and separating and the other being inheritance rights of the children born out of such a relationship.</h4><h4>81. In a country like India where marriage was not compulsorily registerable, it is very difficult to prove marriage, when denied, without reference to third party evidence, both oral and documentary. In many such situations, it is not possible to have such evidence on record, hence by virtue of Section 114 of the Evidence Act, there is a presumption of marriage which could be used to recognize such relationships.</h4><h4>82. In Piers vs. Piers [(1849)2&nbsp; HL&nbsp; Cas&nbsp; 331],&nbsp; it&nbsp; was observed that the question of the validity of&nbsp; marriage could not be tried like any other issue of fact independent of presumption. The Court held that law would presume in favour of marriage and such presumption could only be rebutted by strong and satisfactory evidence.</h4><h4>83. In Lt. C.W.Campbell&nbsp; vs.&nbsp; John&nbsp; A.G.&nbsp; Campbell&nbsp; [(1867)&nbsp; LR 2 HL 269], the House of Lords held that cohabitation, with the required repute, as husband and wife, was proof that the parties between themselves had mutually contracted the matrimonial relation. A relationship which may be adulterous at the beginning may become matrimonial by consent. This may be evidenced by habit and repute.</h4><h4>110. In view of the aforesaid analysis and reasoning, we answer the above points as under:</h4><h4>110.1.The defendants have proved that there was a marriage solemnised between the 2nd Defendant – Jagadish Kumar and Manjula as also that 16th and 17th Defendants are their children.&nbsp;</h4><h4>Per Justice Nagarathna J.: (After thorough discussion on legal aspects and historical antecedents) 50.In the circumstances, it is concluded that, when the parties are in a domestic relationship which is in the nature of marriage and it is found to be so, even in the absence of solemnisation of marriage as per Section 7 of the Act, the children born out of such a relationship also need legislative and social protection. Thus, it is for the Parliament to determine in what way such protection may be extended in the form of separate legislation or by amendment of Section 16 of the Act. This is because, the expression marriage has a specific connotation under Section 5 and 7 of the Act and therefore the same cannot be stretched or given a wider connotation by adding words to the expression marriage as it would be doing violence to the language and intendment of the said Section. Further, Courts have to be cautious and vary of interpreting such provisions in an elastic manner or with wide connotation as it may lead to confusing signals to Indian society which is already in a state of transition on account of global influences. Further, one cannot brush aside the fact that a Hindu marriage is a sacrament and has a unique place in society and a vast majority of Hindu society values the institution of marriage, legitimacy of children and rearing a family as part of ‘Samskara’ of human life, which cannot be done away with or brushed aside merely because some sections of the society may not have faith in such ideas or social institutions. Therefore, instead of Courts coming to the rescue of such innocent children, it is best left to the Parliament to consider ways and means in which they could have the protection of law.</h4><h4><br></h4>', 'fd87e3867c426ce03ffe9832614a5eb8.PNG', '4721ba94bc6e2a890a6b820852e21175.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-05-15', 1, '', '', '2021-03-14 22:21:18', '2021-03-14 22:24:14'),
(577, 'tDvpoVS0LXpJSHAkt8TylmTLD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'IPC. Section 193. Punishment for false evidence. Bar under Section 195 will NOT apply if offence is committed during investigation provided the agency lodges complaint prior to commencement of court proceedings. Supreme Court. 12 March 2021', '<h4>Bhima Razu Prasad vs State, rep. by Deputy Superintendent of Police. </h4><h4>(arising out of S.L.P. (Criminal) No. 5102 of 2020) decided on 12 March 2021. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/14906/14906_2020_39_1501_26894_Judgement_12-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/14906/14906_2020_39_1501_26894_Judgement_12-Mar-2021.pdf </a><span style=\"font-size: 1.3125rem;\"><a href=\"https://main.sci.gov.in/supremecourt/2020/14906/14906_2020_39_1501_26894_Judgement_12-Mar-2021.pdf\" target=\"_blank\"> </a></span></h4><h4>Justice Mohan M. Shantanagoudar and Justice Vineet Saran. </h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 6. Hence, the primary question of law that arises for our consideration in these appeals is whether Section 195(1)(b)(i), CrPC bars lodging of case by the investigating agency under Section 193, IPC, in respect of offence of giving false evidence which is committed at the stage of investigation, prior to production of such evidence before the Trial Court? This in turn, requires us to resolve the following sub­questions:</h4><h4>6.1.Whether   an   offence under Section 193, IPC committed at the stage of investigation, prior to production of the false evidence before the Trial Court by a person who is not yet party to proceedings before the Trial Court, is an offence “in relation to” a proceeding in any court under Section 195(1)(b)(i), CrPC? </h4><h4>6.2 Whether the words “stage of a judicial proceeding” under Explanation 2 to Section 193, IPC can be equated with “proceeding in any court” under Section 195(1)(b)(i), CrPC?</h4><h4><span style=\"font-size: 1.3125rem;\"><span style=\"background-color: rgb(255, 255, 0);\">Cases referred</span>: </span></h4><h4>1) Iqbal Singh Marwah and Another v. Meenakshi Marwah and Another, (2005) 4 SCC 370, </h4><h4>2) Sachida Nand Singh and Another v. State of Bihar and Another, (1998) 2 SCC 493, </h4><h4>3) Bandekar Brothers Pvt. Ltd. and Another v. Prasad Vassudev Keni and Others, AIR 2020 SC 4247, </h4><h4>4) State of Punjab v. Jasbir Singh, (2020) 12 SCC 96, </h4><h4>5) Surjit Singh and Others v. Balbir  Singh, (1996) 3 SCC 533, </h4><h4>6) Kailash Mangal v. Ramesh Chand (Dead) Through Legal Representative, (2015) 15 SCC 729, </h4><h4>7) Narendra Kumar Srivastava v. State of Bihar and Others, (2019) 3 SCC 318, </h4><h4>8) Arvindervir Singh v. State of Punjab and Another, (1998) 6 SCC 352, </h4><h4>9) Punjab   and   Haryana   High   Court Bar Association, Chandigarh Through its Secretary v. State of Punjab and Others, (1994) 1 SCC 616, </h4><h4>10) Punjab  & Haryana High  Court Bar Association v. State of Punjab and Others, (1996) 4 SCC 742, </h4><h4>11) Lalji Haridas v. State of Maharashtra, (1964) 6 SCR 700, </h4><h4>12) Babita Lila and Another v. Union of India, (2016) 9 SCC 647, </h4><h4>13) Chandrapal Singh and Others v. Maharaj Singhand  Another, (1982) 1 SCC 466, </h4><h4><span style=\"background-color: rgb(255, 255, 0);\"><b>Conclusions</b></span>: 24. The questions of law formulated in paragraph 6 (supra) are answered as follows: </h4><h4><font color=\"#ce0000\">Section 195(1)(b)(i), CrPC  will  not  bar prosecution by the investigating agency for offence punishable  under  Section  193,  IPC, which is committed during the stage of investigation. This is provided that the investigating agency has lodged complaint or registered the case under Section 193, IPC  prior to  commencement  of  proceedings  and production of such evidence before the trial court. In  such circumstance,  the   same  would  not  be considered an offence committed in, or in relation to, any proceeding in any Court for the purpose of Section 195(1)(b)(i), CrPC.</font></h4><div><br></div><h4><br></h4>', '025f00ae46d62bc63574a39e74bda61b.PNG', '056ca946f5b5f5ea275d08fb0f908cdf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-12', 1, '', '', '2021-03-15 00:05:33', '2021-03-15 00:18:20'),
(578, 'kHR1pTGb7Anzil9NR8ZsPCatP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constitution of India. Delimitation of municipal constituencies. Bar under Article 243ZG-a applies only to Courts and not to State Election Commission. SEC can countermand illegal delimitation orders. Supreme Court. 12 March 2021 ', '<h4>State of Goa and another vs Fouzia Imtiaz Shaikh and another. </h4><h4>Civil Appeal 881 of 2021 decided on 12 March 2021. </h4><h4>Justice Rohinton Fali Nariman, Justice B.R. Gavai and Justice Hrishikesh Roy. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/5892/5892_2021_33_1501_26888_Judgement_12-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/5892/5892_2021_33_1501_26888_Judgement_12-Mar-2021.pdf</a></h4><h4><b style=\"background-color: rgb(255, 255, 0);\">HELD:</b> Paragraph 63. A conspectus of the aforesaid judgments in the context of municipal elections would yield the following results. </h4><h4>I. Under Article 243 ZG(b), no election to any municipality can be called in question except by an election petition presented to a Tribunal as is provided by or under any law made by the Legislature of a State. This would mean that from the date of notification of the election till the date of the declaration of result a judicial hands-off is mandated by the non-obstante clause contained in Article 243ZG debarring the writ court under Articles 226 and 227 from interfering once the election process has begun until it is over. The constitutional bar operates only during this period. It is therefore a matter of discretion exercisable by a writ court as to whether an interference is called for when the electoral process is “imminent” i.e, the notification for elections is yet to be announced.</h4><h4>II. If, however, the assistance of a writ court is required in subserving the progress of the election and facilitating its completion, the writ court may issue orders provided that the election process, once begun, cannot be postponed or protracted in any manner.</h4><h4>III. The non-obstante clause contained in Article 243ZG does not operate as a bar after the election tribunal decides an election dispute before it. Thus, the jurisdiction of the High Courts under Articles 226 and 227 and that of the Supreme Court under Article 136 of the Constitution of India is not affected as the non-obstante clause in Article 243ZG operates only during the process of election.<br>IV. Under Article 243ZA(1), the SEC is in overall charge of the superintendence, direction and control of the preparation of electoral rolls, and the conduct of all municipal elections. If there is a constitutional or statutory infraction by any authority including the<br>State Government either before or during the election process, the SEC by virtue of its power under Article 243ZA(1) can set right such infraction. For this purpose, it can direct the State Government or other authority to follow the Constitution or legislative enactment or direct such authority to correct an order which infracts the constitutional or statutory mandate. For this purpose, it can also approach a writ court to issue necessary directions in this behalf. <b style=\"background-color: rgb(255, 255, 0);\">It is entirely upto the SEC to set the election process in motion or, in cases where a constitutional or statutory provision is not followed or infracted, to postpone the election process until such illegal action is remedied. This the SEC will do taking into account the constitutional mandate of holding elections before the term of a municipality or municipal council is over. In extraordinary cases, the SEC may conduct elections after such term is over, only for good reason.</b><br>V. Judicial review of a State Election Commission’s order is available on grounds of review of administrative orders. Here again, the writ court must adopt a hands-off policy while the election process is on and interfere either before the process commences or after such process is completed unless interfering with such order subserves and facilitates the progress of the election.<br>VI. Article 243ZA(2) makes it clear that the law made by the legislature of a State, making provision with respect to matters relating to or in connection with elections to municipalities, is subject to the provisions of the Constitution, and in particular Article 243T, which deals with reservation of seats.<br>VII. The bar contained in Article 243ZG(a) mandates that there be a judicial hands-off of the writ court or any court in questioning the validity of any law relating to delimitation of constituency or allotment of seats to such constituency made or purporting to be made under Article 243ZA. This is by virtue of the non-obstante clause contained in Article 243ZG. The statutory provisions dealing with delimitation and allotment of seats cannot therefore be questioned in any court. However, orders made under such<br>statutory provisions can be questioned in courts provided the concerned statute does not give such orders the status of a statutory provision.<br>VIII. Any challenge to orders relating to delimitation or allotment of seats including preparation of electoral rolls, not being part of the election process as delineated above, can also be challenged in the manner provided by the statutory provisions dealing with delimitation of constituencies and allotment of seats to such constituencies.<br><b style=\"background-color: rgb(255, 255, 0);\">IX. The constitutional bar of Article 243ZG(a) applies only to courts and not the State Election Commission, which is to supervise, direct and control preparation of electoral rolls and conduct elections to municipalities.<br>X. The result of this position is that it is the duty of the SEC to countermand illegal orders made by any authority including the State Government which delimit constituencies or allot seats to such constituencies, as is provided in proposition (IV) above. This may be done by the SEC either before or during the electoral process, bearing in mind its constitutional duty as delineated in the said proposition</b></h4>', 'c1d6a593e00403807235315ce13e04d6.PNG', '759e16d5d02591f68f4336787c475905.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-12', 1, '', '', '2021-03-15 18:45:12', '2021-03-15 18:51:53'),
(579, 'jFxE6lxd02MOU0wuaH6cCOLeK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Gross abuse of power by Government officers resulting in illegal demolition and dispossession. Karnataka High Court passes strictures and imposes heavy costs on the erring officers. 15 March 2021', '<h4>Jayamma and others vs State of Karnataka and Others. </h4><h4>Writ Petition 9723 of 2020 decided on 15 March 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/371547/1/WP9723-20-15-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/371547/1/WP9723-20-15-03-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 24.The Assistant Commissioner and the Tahsildar have made a consorted effort, abusing their office and violating  the procedures, as noticed above, to take possession of the properties in question, proceeding to demolish the structures and buildings which were in possession of the rightful owners or tenants, with utter disregard to the provisions of law and human rights. The Assistant Commissioner and the Tahsildar are impleaded as parties eo-nomine and they have engaged learned Counsels who were unable to meet the allegations made against them. On the other hand, blame is sought to be placed against each other that the Tahsildar was required to follow the process as contemplated under Section 39 of the Karnataka Land Revenue Act, while it is contended by the Tahsildar that he followed the instructions of the Assistant Commissioner.<br>25. There can be no manner of doubt that the impugned order passed by the Assistant Commissioner is arbitrary, illegal and tainted with malice. It is therefore required to be quashed and set aside. The matter requires to be reconsidered on merits by the <br>28. Before parting with these writ petitions, it needs to be mentioned that the highhanded action on the part of the Assistant Commissioner and the Tahsildar is required to be taken note of and appropriate action is required to be initiated against them, to take things to their logical conclusion. This Court should take judicial notice of the fact that such highhanded action on the part of the respondent-authorities could not have happened if the authorities were sensitive enough about their powers and functions and the obvious disregard may have been occasioned due to the fact that postings are given to such sensitive offices, not on merits or with public interest in mind. It is obvious that the respondent-authorities are fearless of the consequences of being in conflict with the law. Such officers are emboldened by the fact that they are protected by the Government. Every now and then the citizens of this State are given to understand that ‘plum’ postings are assigned for monetary considerations. Such news and information are published in national newspapers, magazines, Television channels and social media. Allegations are levelled by the opposition leaders and social activists. Cutting across all political parties that have formed Government, allegations are levelled against Heads of the Departments, Ministers and the Chief Ministers. There cannot be two views that if an Officer shells out money to get a plum posting, he would employ every means possible to recover the money he has invested and makes every effort to make money for future needs and therefore, this forms the vicious circle of corruption. Time has come when this Court has to step in to find out the truth of the fact and direct the State to put in place regulations to check the tentacles of corruption from taking strangle hold of the society. Therefore, this Court would urge that Hon’ble the Chief Justice may take note of the observations of this Court and take up suo motu proceedings against the State Government to put an end to the pernicious practice of providing postings for monetary considerations and reasons other than public interest.<br>29.<span style=\"white-space:pre\">	</span>For the foregoing reasons, this Court proceeds to pass the following:<br>ORDER<br>1. The writ petitions are allowed with costs of Rs.10,000/- (Rupees Ten Thousand Only) each, payable by the respondent-Assistant Commissioner (Sri M.G.Shivanna), the respondent-Tahsildar (Sri Shivappa Lamani) and respondent No.8 (Sri M.Muniraju) to each of the four petitioners. The costs shall be  paid within a period of four weeks from today and an acknowledgement shall be furnished  in the office, for records. The strictures passed by this Court and costs imposed on the respondent-Assistant Commissioner and the respondent-Tahsildar shall be entered in their Service Register.<br>2. The impugned order dated 18.02.2020  passed by the respondent-Assistant Commissioner in Case No.K-SC-ST(S) 15/ 2019-2020, is hereby quashed and set aside.<br>3. The matter stands remanded to the Assistant Commissioner who shall issue notice to the petitioners herein, permit them to file objections and raise all grounds including the question of delay and laches in initiation of the proceedings under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978.<br>4. The Additional Chief Secretary, Department of Revenue, shall initiate an enquiry against the respondent-Assistant Commissioner and the respondent-Tahsildar and if required place them under suspension immediately. At any rate, the respondent-Assistant Commissioner Sri M.G.Shivanna, shall not hear this matter.<br>5. The enquiry may be entrusted to the Hon’ble Lokayukta.<br>6. The petitioners herein shall be put back in possession of the land in question, which was resumed by virtue of the impugned order.<br>7. Liberty is granted to the petitioners to approach the competent Civil Court to seek compensation/damages at the hands of the respondent-Assistant<span style=\"white-space:pre\">	</span>Commissioner, respondent-Tahsildar, the State Government and the 8th respondent Sri. M Muniraju.<br>8. The recommendation dated 01.11.2019, made by the National Commission and the communication dated 11.01.2019, need not be acted upon.<br>A copy of this order shall be forwarded to the Chief Secretary, Additional Chief Secretary, Department of Revenue, for further action. A copy of this order shall also be placed before Hon’ble the Chief Justice of this Court. </h4><h4>It is ordered accordingly.<br>In view of the disposal of the petitions, pending IAs do not survive for consideration and are accordingly disposed of.</h4><div><br></div>', 'ce4365dd97ffa040426d94fe1341c518.jpg', '229e625fa0fbc14053e8f670cfee1df5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-15', 1, '', '', '2021-03-16 01:20:15', '2021-03-16 01:25:48'),
(580, 'ukWXBNed0S7iA57daIsTtQq3o', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'C.P.C. Return of plaint for want of statutory notice. Revision under Section 115 is NOT maintainable. Appeal under Section 96 or under Order 43 is also NOT maintainable. Karnataka High Court. 6 March 2021', '<h4><span style=\"background-color: rgb(255, 255, 0);\">NOTE</span>: In view of this judgement, against return of plaint on technical grounds, the only remedy is to file a writ petition under Article 227 of the Constitution of India.&nbsp; &nbsp;&nbsp;</h4><h4>M/s. Suvidha Realtors and Constructions Pvt Ltd vs The Hubli Taluka Agricultural Produce Co-Operative Marketing Ltd and another. </h4><h4>Civil Revision Petition 100019 of 2020 decided on 6 March 2021. </h4><h4>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/371232/1/CRP100019-20-06-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/371232/1/CRP100019-20-06-03-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:&nbsp;In this petition filed under Section 115&nbsp; of&nbsp; the&nbsp; Code&nbsp; of&nbsp; Civil Procedure, 1908 the petitioner is calling in question the legality and validity of the order dated 31.01.2020 passed in O.S.No.51/2009 by&nbsp; the&nbsp; learned Principal Senior Civil Judge, Hubballi, returning the plaint of the plaintiff.<br></h4><h4>3. The office has raised objections regarding the maintainability of the revision petition under&nbsp; Section&nbsp; 115&nbsp; of CPC as against the impugned&nbsp; order&nbsp; dated&nbsp; 31.01.2020&nbsp; passed by the learned court below. Respondents who are&nbsp; the&nbsp; defendants before the Court below have&nbsp; also&nbsp; taken&nbsp; up&nbsp; the&nbsp; same contentions.<br></h4><h4>7. As is apparent from the above, the learned Court below has passed the impugned order returning the plaint to the plaintiff for want of compliance of statutory/mandatory notice under Section 125 of the Karnataka Co-operative Societies Act, 1959.&nbsp;<br></h4><h4>9. Sub-Section (1) of Section 115 of CPC is very clear that a revision is maintainable&nbsp; only&nbsp; when&nbsp; no&nbsp; appeal&nbsp; lies against the impugned order.<br>10. The appeal against judgment and decree passed in original suits and orders passed in such&nbsp; suits&nbsp; can&nbsp; be&nbsp; maintained under Section 96 read with Order 41 of CPC&nbsp; or under Order 43 of CPC.&nbsp;&nbsp;<br><b style=\"background-color: rgb(255, 255, 0);\">11. There is absolutely no quarrel about the fact on&nbsp; either side that since the impugned order is one&nbsp; of&nbsp; returning&nbsp; the plaint for alleged want of statutory notice, to&nbsp; defendant&nbsp; No.1, no decree has resulted therefrom and accordingly no&nbsp; appeal can be maintained as against the impugned order under Section 96 of CPC.<br></b>12. The next question which arises is as to whether an appeal can be maintained under Order 43 of CPC.&nbsp;<br><b style=\"background-color: rgb(255, 255, 0);\">13. A bare perusal of the above provision shows that the impugned order is not one of returning the plaint to be presented to a proper Court and therefore, no appeal can be maintained against the impugned order under Order 43 of the Code.<br></b>14. The only point of controversy&nbsp; between&nbsp; the&nbsp; parties on either side is, while the petitioner asserts that the impugned order comes within the proviso to sub-Section (1) of Section 115 of CPC, and the revision petition is maintainable, the assertion of the respondents is that it is not so and revision petition, therefore, is not maintainable against the impugned order.&nbsp;<br>15. A careful perusal of the proviso to sub-Section (1) of Section 115 of CPC makes it obvious that a revision petition can be maintained before the High Court and in such a revision petition, High Court can vary or reverse the order impugned before it only if the order under revision, if it had been made in favour of the revision petitioner would have finally disposed of the suit or other proceedings.&nbsp; In&nbsp; other&nbsp; words, the condition precedent for the maintainability of a revision petition under CPC is that if the&nbsp; order&nbsp; which&nbsp; is called in question in the&nbsp; revision&nbsp; petition&nbsp; had been otherwise, that is if the order were to be in favour of the revision petitioner, it ought to have had the effect of disposing of the entire suit.&nbsp; In this particular case, the learned Court below has held that the petitioner has failed to issue statutory notice under Section 125 of the Karnataka Co-operative Societies Act, 1959. In order for the High Court to entertain a revision petition,&nbsp; the&nbsp; situation&nbsp; should&nbsp; have&nbsp; been&nbsp; that&nbsp; if&nbsp; the&nbsp; Court&nbsp; had&nbsp; accepted&nbsp; the&nbsp; contention&nbsp; of&nbsp; the&nbsp; petitioner&nbsp; herein&nbsp; and held the notice issued to defendant No.2 itself was sufficient,&nbsp; the&nbsp; effect&nbsp; of&nbsp; such&nbsp; order&nbsp; should&nbsp; have&nbsp; been to finally&nbsp; dispose&nbsp; of&nbsp; the&nbsp; suit. Such a finding&nbsp; by&nbsp; the&nbsp; learned trial Court would not have had the effect of finally disposing<br>of O.S.No.51/2009 in this particular case. <b style=\"background-color: rgb(255, 255, 0);\">It is therefore quite clear that the impugned order is not revisable under Section 115 of CPC and as such, the present petition is not maintainable.</b>&nbsp;<br>16. Hence, the following : The above petition is rejected as not maintainable. However, interim order which is in operation till today, shall continue for a period of fifteen days from today, in order to enable the petitioner herein to take such steps as is advised,&nbsp; to question the impugned order.<br></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Cases referred</span>&nbsp;</h4><h4>1.W.P.No.113059/2014 – Dalawai Nagappa since deceased by LRs. And ors. Vs. P.&nbsp; Abdul Bari and others.<br>2.(1977) 4 SCC 551 – Madhu Limaye vs. The State of Maharashtra.<br>3.(2003) 6 SCC 675 – Surya Dev Rai vs. Ram Chander Rai and others.<br>4.ILR 2018 Kar. 3785 – Nazir Ahamad and ors. Vs.&nbsp; Anwarpashya&nbsp; Sayyadmeera&nbsp; Mujwar and ors.<br>5.ILR 2004 Kar. 1445 – The Arogyanagar Co- operative Housing Society Ltd. And others vs. Fakiragouda and others.<br>6.AIR 1977 SC 148 – State of Maharashtra and others vs. Chander Kant.<br>7.ILR 2018 Kar. 3785 – Nazir Ahamad and others vs. Anwarpashya Sayyadmeera Mujwar and others.<br>8.2001 (1) Kar.L.J. 36 – State and others vs. Prabhakar.<br>9.AIR 1963 SC 424 – Amar Nath Dogra vs. Union of India.<br>10.AIR 1991 Delhi 298 – The New India Assurance Co. Ltd. And ors. Vs. The Delhi Development Authority and ors.<br>11.AIR 1984 SC 1043 –&nbsp; Bihari&nbsp; Chowdhary&nbsp; and ors. Vs. State of Bihar and ors.<br>12.AIR 1965 SC 11 – State of Andhra Pradesh vs. Gundugola Venkata Suryanarayana Garu.<br>13.AIR 1969 SC 1256 –&nbsp; Beohar&nbsp; Rajendra Sinha and ors. Vs. State&nbsp; of&nbsp; Madhya Pradesh and ors.<br>14.AIR 1969 SC 674 – Raghunath Das vs. Union of India and ors.<br></h4>', '9d89a30d8c4b7a17742de8476b44b41d.jpg', '1079ac0f15694ea9ff7f22119aa15f95.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-06', 1, '', '', '2021-03-16 01:56:23', '2021-03-16 02:11:23'),
(581, 'N0K4DQvOQGmV4rHHSeGbpiOqA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 319. Power to proceed against other persons appearing to be guilty of offence can be exercised even on the basis of statement in examination-in­-chief without waiting for cross ­examination of the witness. Supreme Court. 15 March 2021', '<h4>Sartaj Singh vs State of Haryana & Anr. </h4><h4>Criminal Appeal 298-299 of 2021 decided on 15 March 2021. </h4><h4>Justice Dr. Dhananjaya Y. Chandrachud and Justice M. R. Shah. </h4><h4>Judgment Link:  <a href=\"Link: https://main.sci.gov.in/supremecourt/2020/27124/27124_2020_36_1503_26964_Judgement_15-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/27124/27124_2020_36_1503_26964_Judgement_15-Mar-2021.pdf</a></h4><h4><span style=\"font-size: 1.3125rem;\"><span style=\"background-color: rgb(255, 255, 0);\">Questions framed. </span>6.1.2 In   the   said   case,   the   following   five   questions   fell   for </span>consideration before this Court.</h4><h4>(i) What is the stage at which power under Section 319 CrPC can be exercised?</h4><h4>(ii) Whether the word “evidence” used in Section 319(1) CrPC could only mean evidence tested by cross examination or the court can exercise the power under the said provision even on the basis of the statement made   in   the   examination ­in ­chief   of   the   witness concerned?</h4><h4>(iii) Whether the word “evidence” used in Section 319(1) CrPC has been used in a comprehensive sense and includes the evidence collected during investigation or the word “evidence” is limited to the evidence recorded during trial?</h4><h4>(iv) What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?</h4><h4>(v) Does the power under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?”</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">HELD </span>6.2 Considering   the   law   laid   down   by   this   Court   in Hardeep Singh Hardeep Singh v. State of Punjab (2014) 3 SCC 92 and the observations and findings referred to and reproduced herein above, it emerges that (i) the Court can exercise the   power   under   Section   319   CrPC   even   on   the  basis  of  the statement   made   in   the   examination ­in­ chief   of   the   witness concerned and the Court need not wait till the cross­examination of such a witness and the Court need not wait for the evidence against the   accused   proposed   to   be   summoned  to   be   tested   by   cross examination; and (ii) a person not named in the FIR or a person though named in the FIR but has not been charge­sheeted or a person who has been discharged can be summoned under Section 319 CrPC, provided from the evidence (may be on the basis of the evidence   collected   in   the   form   of   statement   made   in   the examination ­in ­chief of the witness concerned), it appears that such person can be tried along with the accused already facing trial.</h4><h4>7. Applying the law laid down by this Court in the aforesaid decisions to the case of the accused on hand, we are of the opinion that learned Trial Court was justified in summoning the private respondents herein to face the trial as accused on the basis of the deposition of the appellant – injured eye witness.  As held by this Court in the aforesaid decisions, the accused can be summoned on the basis of even examination ­in ­chief of the witness and the Court need not wait till his cross­ examination. If on the basis of the examination ­in­ chief of the witness the Court is satisfied that there is a prima facie case against the proposed accused, the Court may in exercise of powers under Section 319 CrPC array such a person as accused and summon him to face the trial.  At this stage, it is<br>required to be noted that right from the beginning the appellant herein – injured eye witness, who was the first informant, disclosed the names of private respondents herein and specifically named them in the FIR.  But on the basis of some enquiry by the DSP they were not charge­sheeted.  What will be the evidentiary value of the enquiry report submitted by the DSP is another question.   It is not that   the   investigating   officer   did   not   find   the   case   against   the private respondents herein  and  therefore they  were not  chargesheeted.  In any case, in the examination ­in ­chief of the appellantinjured eye witness, the names of the private respondents herein are   disclosed.     It   might   be   that   whatever   is   stated   in   the examination ­in­ chief is the same which was stated in the FIR. The same is bound to be there and ultimately the appellant herein – injured eye witness is the first informant and he is bound to again state what was stated in the FIR, otherwise he would be accused of contradictions   in   the   FIR   and   the  statement  before   the   Court. Therefore, as such, the learned Trial Court was justified in directing to issue summons against the private respondents herein to face the trial.</h4>', 'aabdf648d809f9f0f918718c1fa0706e.PNG', 'da1fa9a20ea07ab69da52d24af3220f9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-15', 1, '', '', '2021-03-16 02:30:31', '2021-03-16 02:50:40');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(19, 'nm7nADQTcuSNAMeG8vNtYDuGZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“From Estoppel to Expectations”. Supreme Court dissects doctrines of Promissory Estoppel and Legitimate Expectation.', '<h1 style=\"box-sizing: inherit; -webkit-font-smoothing: antialiased; font-size: 0.88889em; margin: 32px auto; max-width: calc(66.6667vw - 28px); overflow-wrap: break-word; color: rgb(30, 30, 30); font-family: &quot;Crimson Text&quot;, &quot;Baskerville Old Face&quot;, Garamond, &quot;Times New Roman&quot;, serif; background-color: rgb(255, 255, 255); line-height: 1;\"><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px; margin-bottom: 0px;\">The State of Jharkhand and Ors vs Brahmputra Metallics Ltd., Ranchi and Anr. Civil Appeal 3860-3862/2020 decided on 1 December 2020.<br></span><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px; margin-bottom: 0px;\">Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2020/17227/17227_2020_33_1501_24877_Judgement_01-Dec-2020.pdf\" rel=\"nofollow\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170);\">https://main.sci.gov.in/supremecourt/2020/17227/17227_2020_33_1501_24877_Judgement_01-Dec-2020.pdf<br></a></span><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px; margin-bottom: 0px;\">Relevant paragraphs: H.3 Promissory estoppel – origins and evolution<br></span><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px;\">27.&nbsp;</span>In order to analyze the contentions relating to the doctrine of&nbsp;<em style=\"box-sizing: inherit;\">promissory estoppel&nbsp;</em>in the present case, it is necessary to discuss the origin of the doctrine and the evolution of its application. The common law recognizes various kinds of equitable estoppel, one of which is promissory estoppel. In&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Crabb&nbsp;</span>vs&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Arun DC, [1976] 1 Ch 179 (Court of Appeal)</span>, Lord Denning, speaking for the Court of Appeal, traced the genesis of promissory estoppel in equity, and observed:&nbsp;<em style=\"box-sizing: inherit; margin-bottom: 0px;\">“The basis of this proprietary estoppel – as indeed of promissory estoppel – is the interposition of equity. Equity comes in, true to form, to mitigate the rigours of strict law. The early cases did not speak of it as “estoppel”. They spoke of it as “raising an equity” If I may expand that, Lord Cairns said: “It is the first principle upon which all Courts of Equity proceed”, that it will prevent a person from insisting on his legal rights – whether arising under a contract or on his title deed, or by statute – when it would be inequitable for him to do so having regard to the dealings which have taken place between the parties.”<br></em><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px;\">28.&nbsp;</span>The requirements of the doctrine of&nbsp;<em style=\"box-sizing: inherit;\">promissory estoppel&nbsp;</em>have also been formulated in Chitty on Contracts<a href=\"https://dakshalegal.home.blog/2020/12/01/from-estoppel-to-expectations-supreme-court-dissects-doctrines-of-promissory-estoppel-and-legitimate-expectation/?fbclid=IwAR0yP2rUXJO6u0uwh22KGFDY5Ntrlh_XZ1Jzmm1c7g_4b-pKRlZl_C7Vnek#_bookmark13\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170);\"><span style=\"box-sizing: inherit; font-size: 18.5625px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em;\">14</span>&nbsp;</a>(“<span style=\"box-sizing: inherit; font-weight: bolder; margin-bottom: 0px;\">Chitty</span>”):<br><em style=\"box-sizing: inherit; margin-top: 0px; margin-bottom: 0px;\">“<span style=\"box-sizing: inherit; font-weight: bolder;\">4.086.</span>&nbsp;For the equitable doctrine to operate there must be a legal relationship giving rise to rights and duties between the parties; a promise or a representation by one party that he will not enforce against the other his strict legal rights arising out of that relationship; an intention on the part of the former party that the latter will rely on the representation; and such reliance by the latter party. Even if these requirements are satisfied, the operation of the doctrine may be excluded if it is, nevertheless, not “inequitable” for the first party to go back on his promise. The doctrine most commonly applies to promises not to enforce contractual rights, but it also extends to certain other relationships.&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">4.088…..</span>The doctrine can also apply where the relationship giving rise to rights and correlative duties is non-contractual: e.g. to prevent the enforcement of a liability imposed by statute on a company director for signing a bill of exchange on which the company’s name is not correctly given; or to prevent a man from ejecting a woman, with whom he has been cohabitating, from the family home.”<br></em><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px;\">Chitty&nbsp;</span>(supra) clarifies that the doctrine of&nbsp;<em style=\"box-sizing: inherit; margin-bottom: 0px;\">promissory estoppel&nbsp;</em>may be enforced even in the absence of a legal relationship. However, it is argued that this would be an incorrect application of the doctrine since it gives rise to new rights between the parties, when the intent of the doctrine is to restrict the enforcement of previously existing rights:<br><em style=\"box-sizing: inherit; margin-top: 0px; margin-bottom: 0px;\"><span style=\"box-sizing: inherit; font-weight: bolder;\">“4.089.&nbsp;</span>It has, indeed, been suggested that the doctrine can apply where, before the making of the promise or representation, there is no legal relationship giving rise to rights and duties between the parties, or where there is only a putative contract between them: e.g. where the promisee is induced to believe that a contract into which he had undoubtedly entered was between him and the promisor, when in fact it was between the promisee and another person. But it is submitted that these suggestions mistake the nature of the doctrine, which is to restrict the enforcement by the promisor of previously existing rights against the promisee. Such rights can arise only out of a legal relationship existing between these parties before the making of the promise or representation. To apply doctrine where there was no such relationship would contravene the rule (to be discussed in para.4-099 below) that the doctrine creates no new rights.”<br></em><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px;\">29.&nbsp;</span>Generally speaking under English Law, judicial decisions have in the past postulated that the doctrine of&nbsp;<em style=\"box-sizing: inherit;\">promissory estoppel&nbsp;</em>cannot be used as a ‘sword’, to give rise to a cause of action for the enforcement of a promise lacking any consideration. Its use in those decisions has been limited as a ‘shield’, where the promisor is estopped from claiming enforcement of its strict legal rights, when a representation by words or conduct has been made to suspend such rights. In&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Combe&nbsp;</span>vs&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Combe</span><a href=\"https://dakshalegal.home.blog/2020/12/01/from-estoppel-to-expectations-supreme-court-dissects-doctrines-of-promissory-estoppel-and-legitimate-expectation/?fbclid=IwAR0yP2rUXJO6u0uwh22KGFDY5Ntrlh_XZ1Jzmm1c7g_4b-pKRlZl_C7Vnek#_bookmark14\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170);\"><span style=\"box-sizing: inherit; font-size: 18.5625px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em;\">15</span>&nbsp;</a>(“<span style=\"box-sizing: inherit; font-weight: bolder;\">Combe</span>”), the Court of Appeal held that consideration is an essential element of the cause of action:&nbsp;<em style=\"box-sizing: inherit; margin-bottom: 0px;\">“It [promissory estoppel] may be part of a cause of action, but not a cause of action itself. The principle [promissory estoppel] never stands alone as giving a cause of action in itself, it can never do away with the necessity of consideration when that is an essential part of the cause of action. The doctrine of consideration is too firmly fixed to be overthrown by a side-wind.”<br></em><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px;\">30.</span>&nbsp;Even within English Law, the application of the rule laid down in&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Combe&nbsp;</span>(supra) has been noticed to be inconsistent<a href=\"https://dakshalegal.home.blog/2020/12/01/from-estoppel-to-expectations-supreme-court-dissects-doctrines-of-promissory-estoppel-and-legitimate-expectation/?fbclid=IwAR0yP2rUXJO6u0uwh22KGFDY5Ntrlh_XZ1Jzmm1c7g_4b-pKRlZl_C7Vnek#_bookmark15\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170);\"><span style=\"box-sizing: inherit; font-size: 18.5625px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em;\">16</span></a>. The scope of the rule has also been doubted on the ground that it has been widely framed<a href=\"https://dakshalegal.home.blog/2020/12/01/from-estoppel-to-expectations-supreme-court-dissects-doctrines-of-promissory-estoppel-and-legitimate-expectation/?fbclid=IwAR0yP2rUXJO6u0uwh22KGFDY5Ntrlh_XZ1Jzmm1c7g_4b-pKRlZl_C7Vnek#_bookmark16\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170);\"><span style=\"box-sizing: inherit; font-size: 18.5625px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em;\">17</span></a>. Hence, in the absence of a definitive pronouncement by the House of Lords holding that promissory estoppel can be a cause of action, a difficulty was expressed in stating with certainty that English Law has evolved from the traditional approach of treating promissory estoppel as a ‘shield’ instead of a ‘sword’<a href=\"https://dakshalegal.home.blog/2020/12/01/from-estoppel-to-expectations-supreme-court-dissects-doctrines-of-promissory-estoppel-and-legitimate-expectation/?fbclid=IwAR0yP2rUXJO6u0uwh22KGFDY5Ntrlh_XZ1Jzmm1c7g_4b-pKRlZl_C7Vnek#_bookmark17\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170);\"><span style=\"box-sizing: inherit; font-size: 18.5625px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em;\">18</span></a>. By contrast, the law in the United States<a href=\"https://dakshalegal.home.blog/2020/12/01/from-estoppel-to-expectations-supreme-court-dissects-doctrines-of-promissory-estoppel-and-legitimate-expectation/?fbclid=IwAR0yP2rUXJO6u0uwh22KGFDY5Ntrlh_XZ1Jzmm1c7g_4b-pKRlZl_C7Vnek#_bookmark18\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170);\"><span style=\"box-sizing: inherit; font-size: 18.5625px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em;\">19</span>&nbsp;</a>and Australia<a href=\"https://dakshalegal.home.blog/2020/12/01/from-estoppel-to-expectations-supreme-court-dissects-doctrines-of-promissory-estoppel-and-legitimate-expectation/?fbclid=IwAR0yP2rUXJO6u0uwh22KGFDY5Ntrlh_XZ1Jzmm1c7g_4b-pKRlZl_C7Vnek#_bookmark19\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170); margin-bottom: 0px;\"><span style=\"box-sizing: inherit; font-size: 18.5625px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em;\">20</span>&nbsp;</a>is less restrictive in this regard.<br><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px; margin-bottom: 0px;\">31. India, as we shall explore shortly, adopted a more expansive statement of the doctrine. Comparative law enables countries which apply a doctrine from across international frontiers to have the benefit of hindsight.<br></span>This Court has given an expansive interpretation to the doctrine of&nbsp;<em style=\"box-sizing: inherit; margin-top: 0px;\">promissory estoppel&nbsp;</em>in order to remedy the injustice being done to a party who has relied on a promise. In&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Motilal Padampat&nbsp;</span>(supra), this Court viewed&nbsp;<em style=\"box-sizing: inherit;\">promissory estoppel&nbsp;</em>as a principle in equity, which was not hampered by the doctrine of consideration as was the case under English Law. This Court, speaking through Justice P N Bhagwati (as he was then), held thus:&nbsp;<em style=\"box-sizing: inherit; margin-bottom: 0px;\">“12….having regard to the general opprobrium to which the doctrine of consideration has been subjected by eminent jurists, we need not be unduly anxious to project this doctrine against assault or erosion nor allow it to dwarf or stultify the full development of the equity of promissory estoppel or inhibit or curtail its operational efficacy as a justice device for preventing injustice…We do not see any valid reason why promissory estoppel should not be allowed to found a cause of action where, in order to satisfy the equity, it is necessary to do so.”<br></em><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px; margin-bottom: 0px;\">H.2&nbsp;From estoppel to expectations<br></span>Under English Law, the doctrine of&nbsp;<em style=\"box-sizing: inherit; margin-top: 0px;\">promissory estoppel&nbsp;</em>has developed parallel to the doctrine of legitimate expectations. The doctrine of legitimate expectations is founded on the principles of fairness in government dealings. It comes into play if a public body leads an individual to believe that they will be a recipient of a substantive benefit. The doctrine of substantive legitimate expectation has been explained in&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">R&nbsp;</span>vs&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">North and East Devon Health Authority, ex p Coughlan</span><a href=\"https://dakshalegal.home.blog/2020/12/01/from-estoppel-to-expectations-supreme-court-dissects-doctrines-of-promissory-estoppel-and-legitimate-expectation/?fbclid=IwAR0yP2rUXJO6u0uwh22KGFDY5Ntrlh_XZ1Jzmm1c7g_4b-pKRlZl_C7Vnek#_bookmark20\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170); margin-bottom: 0px;\"><span style=\"box-sizing: inherit; font-size: 18.5625px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em;\">21</span>&nbsp;</a>in the following terms:<br><em style=\"box-sizing: inherit; margin-top: 0px; margin-bottom: 0px;\"><span style=\"box-sizing: inherit; font-weight: bolder;\">“55….&nbsp;</span>But what was their legitimate expectation?” Where there is a dispute as to this, the dispute has to be determined by the court, as happened in In re Findlay. This can involve a detailed examination of the precise terms of the promise or representation made, the circumstances in which the promise was made and the nature of the statutory or other discretion.<br></em><em style=\"box-sizing: inherit; margin-top: 0px; margin-bottom: 0px;\"><span style=\"box-sizing: inherit; font-weight: bolder;\">56….</span>Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.”<br></em><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px;\">33.</span>&nbsp;Under English Law, the doctrine of legitimate expectation initially developed in the context of public law as an analogy to the doctrine of&nbsp;<em style=\"box-sizing: inherit;\">promissory estoppel&nbsp;</em>found in private law. However, since then, English Law has distinguished between the doctrines of&nbsp;<em style=\"box-sizing: inherit;\">promissory estoppel&nbsp;</em>and legitimate expectation as distinct remedies under private law and public law, respectively.&nbsp;<em style=\"box-sizing: inherit;\">De Smith’s Judicial Review</em><a href=\"https://dakshalegal.home.blog/2020/12/01/from-estoppel-to-expectations-supreme-court-dissects-doctrines-of-promissory-estoppel-and-legitimate-expectation/?fbclid=IwAR0yP2rUXJO6u0uwh22KGFDY5Ntrlh_XZ1Jzmm1c7g_4b-pKRlZl_C7Vnek#_bookmark21\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170);\"><span style=\"box-sizing: inherit; font-size: 18.5625px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em;\">22</span>&nbsp;</a>notes the contrast between the public law approach of the doctrine of legitimate expectation and the private law approach of the doctrine of&nbsp;<em style=\"box-sizing: inherit; margin-bottom: 0px;\">promissory estoppel&nbsp;</em>:<br><em style=\"box-sizing: inherit; margin-top: 0px; margin-bottom: 0px;\">“[d]espite dicta to the contrary [Rootkin v Kent CC, (1981) 1 WLR 1186 (CA); R v Jockey Club Ex p RAM Racecourses Ltd, [1993] AC 380 (HL); R v IRC Ex p Camacq Corp, (1990) 1 WLR 191 (CA)], it is not normally necessary for a person to have changed his position or to have acted to his detriment in order to qualify as the holder of a legitimate expectation [R v Ministry for Agriculture, Fisheries and Foods Ex p Hamble Fisheries (Offshore) Ltd, (1995) 2 All ER 714 (QB)]. . . Private law analogies from the field of estoppel are, we have seen, of limited relevance where a public law principle requires public officials to honour their undertakings and respect legal certainty, irrespective of whether the loss has been incurred by the individual concerned [Simon Atrill, ‘The End of Estoppel in Public Law?’ (2003) 62 Cambridge Law Journal 3].”<br></em><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px;\">34.&nbsp;</span>Another difference between the doctrines of&nbsp;<em style=\"box-sizing: inherit;\">promissory estoppel&nbsp;</em>and legitimate expectation under English Law is that the latter can constitute a cause of action<a href=\"https://dakshalegal.home.blog/2020/12/01/from-estoppel-to-expectations-supreme-court-dissects-doctrines-of-promissory-estoppel-and-legitimate-expectation/?fbclid=IwAR0yP2rUXJO6u0uwh22KGFDY5Ntrlh_XZ1Jzmm1c7g_4b-pKRlZl_C7Vnek#_bookmark22\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170);\"><span style=\"box-sizing: inherit; font-size: 18.5625px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em;\">23</span></a>. The scope of the doctrine of legitimate expectation is wider than promissory estoppel because it not only takes into consideration a promise made by a public body but also official practice, as well. Further, under the doctrine of&nbsp;<em style=\"box-sizing: inherit;\">promissory estoppel</em>, there may be a requirement to show a detriment suffered by a party due to the reliance placed on the promise. Although typically it is sufficient to show that the promisee has altered its position by placing reliance on the promise, the fact that no prejudice has been caused to the promisee may be relevant to hold that it would not be “inequitable” for the promisor to go back on their promise.<a href=\"https://dakshalegal.home.blog/2020/12/01/from-estoppel-to-expectations-supreme-court-dissects-doctrines-of-promissory-estoppel-and-legitimate-expectation/?fbclid=IwAR0yP2rUXJO6u0uwh22KGFDY5Ntrlh_XZ1Jzmm1c7g_4b-pKRlZl_C7Vnek#_bookmark23\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170);\"><span style=\"box-sizing: inherit; font-size: 18.5625px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em;\">24</span>&nbsp;</a>However, no such requirement is present under the doctrine of legitimate expectation. In&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Regina (Bibi)&nbsp;</span>vs&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Newham London Borough Council</span><a href=\"https://dakshalegal.home.blog/2020/12/01/from-estoppel-to-expectations-supreme-court-dissects-doctrines-of-promissory-estoppel-and-legitimate-expectation/?fbclid=IwAR0yP2rUXJO6u0uwh22KGFDY5Ntrlh_XZ1Jzmm1c7g_4b-pKRlZl_C7Vnek#_bookmark24\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170); margin-bottom: 0px;\"><span style=\"box-sizing: inherit; font-size: 18.5625px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em;\">25</span></a>, the Court of Appeal held:<br><em style=\"box-sizing: inherit; margin-top: 0px; margin-bottom: 0px;\">“55 The present case is one of reliance without concrete detriment. We use this phrase because there is moral detriment, which should not be dismissed lightly, in the prolonged disappointment which has ensued; and potential detriment in the deflection of the possibility, for a refugee family, of seeking at the start to settle somewhere in the United Kingdom where secure housing was less hard to come by. In our view these things matter in public law, even though they might not found an estoppel or actionable misrepresentation in private law, because they go to fairness and through fairness to possible abuse of power.&nbsp; To disregard the legitimate expectation because no concrete detriment can be shown would be to place the weakest in society at a particular disadvantage. It would mean that those who have a choice and the means to exercise it in reliance on some official practice or promise would gain a legal toehold inaccessible to those who, lacking any means of escape, are compelled simply to place their trust in what has been represented to them.”<br></em><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px;\">35.</span>&nbsp;Consequently, while the basis of the doctrine of&nbsp;<em style=\"box-sizing: inherit;\">promissory estoppel&nbsp;</em>in private law is a promise made between two parties, the basis of the doctrine of legitimate expectation in public law is premised on the principles of fairness and non-arbitrariness surrounding the conduct of public authorities. This is not to suggest that the doctrine of&nbsp;<em style=\"box-sizing: inherit;\">promissory estoppel&nbsp;</em>has no application in circumstances when a State entity has entered into a private contract with another private party. Rather, in English law, it is inapplicable in circumstances when the State has made representation to a private party, in furtherance of its&nbsp;<em style=\"box-sizing: inherit;\">public functions</em><a href=\"https://dakshalegal.home.blog/2020/12/01/from-estoppel-to-expectations-supreme-court-dissects-doctrines-of-promissory-estoppel-and-legitimate-expectation/?fbclid=IwAR0yP2rUXJO6u0uwh22KGFDY5Ntrlh_XZ1Jzmm1c7g_4b-pKRlZl_C7Vnek#_bookmark25\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170); margin-bottom: 0px;\"><span style=\"box-sizing: inherit; font-size: 18.5625px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em;\">26</span></a>.<br><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px; margin-bottom: 0px;\">H.5&nbsp; Indian Law and the doctrine of legitimate expectations</span>.<br><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px;\">36.</span>Under Indian Law, there is often a conflation between the doctrines of&nbsp;<em style=\"box-sizing: inherit;\">promissory estoppel&nbsp;</em>and legitimate expectation. This has been described in Jain and Jain’s well known treatise,&nbsp;<em style=\"box-sizing: inherit;\">Principles of Administrative Law</em><a href=\"https://dakshalegal.home.blog/2020/12/01/from-estoppel-to-expectations-supreme-court-dissects-doctrines-of-promissory-estoppel-and-legitimate-expectation/?fbclid=IwAR0yP2rUXJO6u0uwh22KGFDY5Ntrlh_XZ1Jzmm1c7g_4b-pKRlZl_C7Vnek#_bookmark26\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170);\"><em style=\"box-sizing: inherit;\"><span style=\"box-sizing: inherit; font-size: 18.5625px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em;\">27</span></em></a>:&nbsp;<em style=\"box-sizing: inherit; margin-bottom: 0px;\">“At times, the expressions ‘legitimate expectation’ and ‘promissory estoppel’ are used interchangeably, but that is&nbsp; not a correct usage because ‘legitimate expectation’ is a concept much broader in scope than ‘promissory estoppel’.A reading of the relevant Indian cases, however, exhibit some confusion of ideas. It seems that the judicial thinking has not as yet crystallised as regards the nature and scope of the doctrine. At times, it has been referred to as merely a procedural doctrine; at times, it has been treated interchangeably as promissory estoppel. However both these ideas are incorrect. As stated above, legitimate expectation is a substantive doctrine as well and has much broader scope than promissory estoppel.<br></em><em style=\"box-sizing: inherit; margin-top: 0px; margin-bottom: 0px;\">In Punjab Communications Ltd. v. Union of India, the Supreme Court has observed in relation to the doctrine of legitimate expectation:<br></em><em style=\"box-sizing: inherit; margin-top: 0px; margin-bottom: 0px;\">“the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way Reliance must have been placed on the said representation and the representee must have thereby suffered detriment.”<br></em><em style=\"box-sizing: inherit; margin-top: 0px; margin-bottom: 0px;\">It is suggested that this formulation of the doctrine of legitimate expectation is not correct as it makes “legitimate expectation” practically synonymous with promissory estoppel. Legitimate expectation may arise from conduct of the authority; a promise is not always necessary for the purpose.”<br></em><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px; margin-bottom: 0px;\">37.</span>&nbsp;While this doctrinal confusion has the unfortunate consequence of making the law unclear, citizens have been the victims. Representations by public authorities need to be held to scrupulous standards, since citizens continue to&nbsp; live their lives based on the trust they repose in the State. In the commercial world also, certainty and consistency are essential to planning the affairs of business. When public authorities fail to adhere to their representations without providing an adequate reason to the citizens for this failure, it violates the trust reposed by citizens in the State. The generation of a business friendly climate for investment and trade is conditioned by the faith which can be reposed in government to fulfil the expectations which it generates. Professors Jain and Deshpande characterize the consequences of this doctrinal confusion in the following terms:<br><em style=\"box-sizing: inherit; margin-top: 0px; margin-bottom: 0px;\">“Thus, in India, the characterization of legitimate expectations is on a weaker footing, than in jurisdictions like UK where the courts are now willing to recognize the capacity of public law to absorb the moral values underlying the notion of estoppel in the light of the evolution of doctrines like LE [Legitimate Expectations] and abuse of power. If the Supreme Court of India has shown its creativity in transforming the notion of promissory estoppel from the limitations of private law, then it does not stand to reason as to why it should also not articulate and evolve the doctrine of LE for judicial review of resilement of administrative authorities from policies and long- standing practices. If such a notion of LE is adopted, then not only would the Court be able to do away with the artificial hierarchy between promissory estoppel and legitimate expectation, but, it would also be able to hold the administrative authorities to account on the footing of public law outside the zone of promises on a stronger and principled anvil. Presently, in the absence of a like doctrine to that of promissory estoppel outside the promissory zone, the administrative law adjudication of resilement of policies stands on a shaky public law foundation.”<br></em><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px;\">38.&nbsp;</span>We shall therefore attempt to provide a cogent basis for the doctrine of legitimate expectation, which is not merely grounded on analogy with the doctrine of&nbsp;<em style=\"box-sizing: inherit;\">promissory estoppel</em>. The need for this doctrine to have an independent existence was articulated by Justice Frankfurter of the United State Supreme Court in&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Vitarelli&nbsp;</span>vs&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Seton</span><span style=\"box-sizing: inherit; font-size: 18.5625px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em; margin-bottom: 0px;\"><a href=\"https://dakshalegal.home.blog/2020/12/01/from-estoppel-to-expectations-supreme-court-dissects-doctrines-of-promissory-estoppel-and-legitimate-expectation/?fbclid=IwAR0yP2rUXJO6u0uwh22KGFDY5Ntrlh_XZ1Jzmm1c7g_4b-pKRlZl_C7Vnek#_bookmark27\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170);\">28<br></a></span><em style=\"box-sizing: inherit; margin-top: 0px; margin-bottom: 0px;\">‘“An executive agency must be rigorously held to the standards by which it professes its action to be judged. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish&nbsp; with the sword.”<br></em><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px;\">39.&nbsp;</span>However, before we do this, it is important to clarify the understanding of the doctrine of legitimate expectation in previous judgements of this Court. In&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">National Buildings Construction Corporation&nbsp;</span>vs&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">S. Raghunathan</span><a href=\"https://dakshalegal.home.blog/2020/12/01/from-estoppel-to-expectations-supreme-court-dissects-doctrines-of-promissory-estoppel-and-legitimate-expectation/?fbclid=IwAR0yP2rUXJO6u0uwh22KGFDY5Ntrlh_XZ1Jzmm1c7g_4b-pKRlZl_C7Vnek#_bookmark28\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170);\"><span style=\"box-sizing: inherit; font-size: 18.5625px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em;\">29</span>&nbsp;</a>(“<span style=\"box-sizing: inherit; font-weight: bolder;\">National</span>&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder; margin-bottom: 0px;\">Buildings Construction Corpn.</span>”), a three Judge bench of this Court, speaking through Justice S. Saghir Ahmad, held that:<br><em style=\"box-sizing: inherit; margin-top: 0px; margin-bottom: 0px;\">“18. The doctrine of “legitimate expectation” has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without any iota of abuse of discretion. The policy statements cannot be disregarded unfairly or applied selectively. Unfairness in the form of unreasonableness is akin to violation of natural justice. It was in this context that the doctrine of “legitimate expectation” was evolved which has today become a source of substantive as well as procedural rights. But claims based on “legitimate expectation” have been held to require reliance on representations and resulting detriment to the claimant in the same way as claims based on promissory estoppel.”</em>.<br>However, it is important to note that this observation was made by this Court while discussing the ambit of the doctrine of legitimate expectation under English Law, as it stood then. As we have discussed earlier, there was a substantial conflation or overlap between the doctrines of legitimate expectation and&nbsp;<em style=\"box-sizing: inherit; margin-top: 0px;\">promissory estoppel&nbsp;</em>even under English Law since the former was often invoked as being analogous to the latter. However, since then and since the judgment of this Court in&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">National Buildings Construction Corporation&nbsp;</span>(supra), the English Law in relation to the doctrine of legitimate expectation has evolved. More specifically, it has actively tried to separate the two doctrines and to situate the doctrine of legitimate expectations on a broader footing. In&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Regina (Reprotech (Pebsham) Ltd)&nbsp;</span>vs&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">East Sussex County Council</span><a href=\"https://dakshalegal.home.blog/2020/12/01/from-estoppel-to-expectations-supreme-court-dissects-doctrines-of-promissory-estoppel-and-legitimate-expectation/?fbclid=IwAR0yP2rUXJO6u0uwh22KGFDY5Ntrlh_XZ1Jzmm1c7g_4b-pKRlZl_C7Vnek#_bookmark29\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170); margin-bottom: 0px;\"><span style=\"box-sizing: inherit; font-size: 18.5625px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em;\">30</span></a>, the House of Lords has held thus: held thus:<br><em style=\"box-sizing: inherit; margin-top: 0px; margin-bottom: 0px;\">“33&nbsp;&nbsp;&nbsp;In any case, I think that it is unhelpful to introduce private law concepts of estoppel into planning law. As Lord Scarman pointed out in Newbury District Council v Secretary of State for the Environment [1981] AC 578 , 616, estoppels bind individuals on the ground that it would be unconscionable for them to deny what they have represented or agreed. But these concepts of private law should not be extended into “the public law of planning control, which binds everyone”. (See also Dyson J in R v Leicester City Council, Ex p Powergen UK Ltd [2000] JPL 629 , 637.)<br></em><em style=\"box-sizing: inherit; margin-top: 0px; margin-bottom: 0px;\">34.There is of course an analogy between a private law estoppel and the public law concept of a legitimate expectation created by a public authority, the denial of which may amount to an abuse of power… But it is no more than an analogy because remedies against public authorities also have to take into account the interests of the general public which the authority exists to promote. Public law can also&nbsp; take into account the hierarchy of individual rights which exist under the Human Rights Act 1998, so that, for example, the individual’s right to a home is accorded a high degree of protection (see Coughlan’s case, at pp 254–255) while ordinary property rights are in general far more limited by considerations of public interest: see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389.<br></em><em style=\"box-sizing: inherit; margin-top: 0px; margin-bottom: 0px;\">35. It is true that in early cases such as the Wells case [1967] 1 WLR 1000 and Lever Finance Ltd v Westminster (City) London Borough Council [1971] 1 QB 222 , Lord Denning MR used the language of estoppel in relation to planning law. At that time the public law concepts of abuse of power and legitimate expectation were very undeveloped and no doubt the analogy of estoppel seemed useful…..It seems to me that in this area, public law has already absorbed whatever is useful from the moral values which underlie the private law concept of estoppel and&nbsp; the time has come for it to stand upon its own two feet.”<br></em><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px;\">40.&nbsp;</span>In a concurring opinion in&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Monnet Ispat and Energy Ltd.&nbsp;</span>vs&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Union of India</span><a href=\"https://dakshalegal.home.blog/2020/12/01/from-estoppel-to-expectations-supreme-court-dissects-doctrines-of-promissory-estoppel-and-legitimate-expectation/?fbclid=IwAR0yP2rUXJO6u0uwh22KGFDY5Ntrlh_XZ1Jzmm1c7g_4b-pKRlZl_C7Vnek#_bookmark30\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170);\"><span style=\"box-sizing: inherit; font-size: 18.5625px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em;\">31</span></a>&nbsp;(“<span style=\"box-sizing: inherit; font-weight: bolder;\">Monnet Ispat</span>”), Justice H L Gokhale highlighted the different considerations that underlie the doctrines of&nbsp;<em style=\"box-sizing: inherit; margin-bottom: 0px;\">promissory estoppel&nbsp;</em>and legitimate expectation. The learned judge held that for the application of the doctrine of promissory estoppel, there&nbsp; has to be&nbsp; a&nbsp; promise, based&nbsp; on&nbsp; which&nbsp; the promisee has acted to its prejudice. In contrast, while applying the doctrine of legitimate expectation, the primary considerations are reasonableness and fairness of the State action. He observed thus<br><em style=\"box-sizing: inherit; margin-top: 0px; margin-bottom: 0px;\">“Promissory Estoppel and Legitimate Expectations”<br></em><em style=\"box-sizing: inherit; margin-top: 0px; margin-bottom: 0px;\">289. As we have seen earlier, for invoking the principle of promissory estoppel there has to be a promise, and on that basis the party concerned must have acted to its prejudice. In the instant case it was only a proposal, and it was very much made clear that it was to be approved by the Central Government, prior whereto it could not be construed as containing a promise. Besides, equity cannot be used against a statutory provision or notification.<br></em><em style=\"box-sizing: inherit; margin-top: 0px; margin-bottom: 0px;\">290…..In any case, in the absence of any promise, the Appellants including Aadhunik cannot claim promissory estoppel in the teeth of the notifications issued under the relevant statutory powers. Alternatively, the Appellants are trying to make a case under the doctrine of legitimate expectations. The basis of this doctrine is in reasonableness and fairness. However, it can also not be invoked where the decision of the public authority is founded in a provision of law, and is in consonance with public interest.”<br></em>In&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px;\">Union of India&nbsp;</span>vs&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Lt. Col. P.K. Choudhary</span><a href=\"https://dakshalegal.home.blog/2020/12/01/from-estoppel-to-expectations-supreme-court-dissects-doctrines-of-promissory-estoppel-and-legitimate-expectation/?fbclid=IwAR0yP2rUXJO6u0uwh22KGFDY5Ntrlh_XZ1Jzmm1c7g_4b-pKRlZl_C7Vnek#_bookmark31\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170);\"><span style=\"box-sizing: inherit; font-size: 18.5625px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em;\">32</span></a>, speaking through Chief Justice T S Thakur, the Court discussed the decision in&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Monnet Ispat&nbsp;</span>(supra) and noted its reliance on the judgment in&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Attorney General for New South Wales&nbsp;</span>vs.&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Quinn</span><a href=\"https://dakshalegal.home.blog/2020/12/01/from-estoppel-to-expectations-supreme-court-dissects-doctrines-of-promissory-estoppel-and-legitimate-expectation/?fbclid=IwAR0yP2rUXJO6u0uwh22KGFDY5Ntrlh_XZ1Jzmm1c7g_4b-pKRlZl_C7Vnek#_bookmark32\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170); margin-bottom: 0px;\"><span style=\"box-sizing: inherit; font-size: 18.5625px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em;\">33</span></a>. It then observed:<br><em style=\"box-sizing: inherit; margin-top: 0px; margin-bottom: 0px;\">“This Court went on to hold that if denial of legitimate expectation in a given case amounts to denial of a right that is guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or in violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Article 14 of the Constitution but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles.”<br></em>Thus, the Court held that the doctrine of legitimate expectation cannot be claimed as a right in itself, but can be used only when the denial of a legitimate expectation leads to the violation of Article 14 of the Constitution.<br>42. As regards the relationship between Article 14 and the doctrine of legitimate expectation, a three judge Bench in&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px;\">Food Corporation of India&nbsp;</span>vs&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Kamdhenu Cattle Feed Industries</span><a href=\"https://dakshalegal.home.blog/2020/12/01/from-estoppel-to-expectations-supreme-court-dissects-doctrines-of-promissory-estoppel-and-legitimate-expectation/?fbclid=IwAR0yP2rUXJO6u0uwh22KGFDY5Ntrlh_XZ1Jzmm1c7g_4b-pKRlZl_C7Vnek#_bookmark33\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170); margin-bottom: 0px;\"><span style=\"box-sizing: inherit; font-size: 18.5625px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em;\">34</span></a>, speaking through Justice J S Verma, held thus:<br><em style=\"box-sizing: inherit; margin-top: 0px; margin-bottom: 0px;\">“7. In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is ‘fairplay in action’. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated&nbsp; fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision- making process in all State actions. To satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review.<br></em><em style=\"box-sizing: inherit; margin-top: 0px;\">8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in</em>&nbsp;each case.&nbsp;<em style=\"box-sizing: inherit; margin-bottom: 0px;\">Whenever the question arises, it is to be determined not according to the claimant’s perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.”<br></em>More recently, in&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px;\">NOIDA Entrepreneurs Assn.&nbsp;</span>vs&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">NOIDA</span><a href=\"https://dakshalegal.home.blog/2020/12/01/from-estoppel-to-expectations-supreme-court-dissects-doctrines-of-promissory-estoppel-and-legitimate-expectation/?fbclid=IwAR0yP2rUXJO6u0uwh22KGFDY5Ntrlh_XZ1Jzmm1c7g_4b-pKRlZl_C7Vnek#_bookmark34\" style=\"box-sizing: inherit; text-decoration-line: underline; transition: color 0.11s ease-in-out 0s; color: rgb(0, 115, 170); margin-bottom: 0px;\"><span style=\"box-sizing: inherit; font-size: 18.5625px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em;\">35</span></a>, a two-judge bench of this Court, speaking through Justice B. S. Chauhan, elaborated on this relationship in the following terms:<br><em style=\"box-sizing: inherit; margin-top: 0px; margin-bottom: 0px;\">“39. State actions are required to be non-arbitrary and justified on the touchstone of Article 14 of the Constitution. Action of the State or its instrumentality must be in conformity with some principle which meets the test of reason and relevance. Functioning of a “democratic form of Government demands equality and absence of arbitrariness and discrimination”. The rule of law prohibits arbitrary action and commands the authority concerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law.<br></em><em style=\"box-sizing: inherit; margin-top: 0px; margin-bottom: 0px;\">41. Power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact situation of a case. “Public authorities cannot play fast and loose with the powers vested in them.” A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. An authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred. In this context, “in good faith” means “for legitimate reasons”. It must be exercised bona fide for the purpose and for none other…]”<br></em><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px; margin-bottom: 0px;\">As such, we can see that the doctrine of substantive legitimate expectation is one of the ways in which the guarantee of non-arbitrariness enshrined under Article 14 finds concrete expression.<br></span><span style=\"box-sizing: inherit; font-weight: bolder; margin-top: 0px; margin-bottom: 0px;\"><em style=\"box-sizing: inherit;\">Compiled by S. Basavaraj, Advocate, Daksha Legal, Bengaluru</em>.<br></span><span style=\"box-sizing: inherit; font-size: 14.6667px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em; margin-top: 0px;\">16</span>&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder; margin-bottom: 0px;\">Wyvern Development, Re</span>, [1974] 1 W.L.R. 1097 cited in Susan M. Morgan, “A Comparative Analysis of the Doctrine of Promissory Estoppel in Australia, Great Britain and the United States”, (1985) 15 Melbourne University Law Review 134, 139-141.<br><span style=\"box-sizing: inherit; font-size: 14.6667px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em; margin-top: 0px;\">17</span>&nbsp;In&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Tungsten Electric Co Ltd.&nbsp;</span>vs&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder; margin-bottom: 0px;\">Tool Metal Manufacturing Co. Ltd.,&nbsp;</span>[1955] 1 W.L.R. 761, Lord Simonds states, “I do not wish to lend the authority of this House to the statement of the principle which is to be found in Combe v. Combe and may well be far too widely stated”.<br><span style=\"box-sizing: inherit; font-size: 14.6667px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em; margin-top: 0px;\">18</span>&nbsp;In&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Baird Textiles Holdings Ltd.&nbsp;</span>vs&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder; margin-bottom: 0px;\">Marks and Spencer Plc.</span>, [2002] 1 All ER (Comm) 737, Court of Appeal stated that “there is no real prospect of the claim [estoppel] succeeding unless and until law is developed, or corrected, by the House of Lords”.<br><span style=\"box-sizing: inherit; font-size: 14.6667px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em; margin-top: 0px;\">19</span>&nbsp;American Law Institute,&nbsp;<em style=\"box-sizing: inherit; margin-bottom: 0px;\">Restatement of the Law (2d), Contracts&nbsp;</em>(1981), para 90.<br><span style=\"box-sizing: inherit; font-size: 14.6667px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em; margin-top: 0px; margin-bottom: 0px;\">23</span>&nbsp;Rebecca Williams, “The Multiple Doctrines of Legitimate Expectations”, (2016) 132(Oct) Law Quarterly Review 639, 645.<br><span style=\"box-sizing: inherit; font-size: 14.6667px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em; margin-top: 0px;\">24</span>&nbsp;<em style=\"box-sizing: inherit; margin-bottom: 0px;\">Supra&nbsp;</em>note 19 at para 4-095.<br><span style=\"box-sizing: inherit; font-size: 14.6667px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em; margin-top: 0px; margin-bottom: 0px;\">26</span>&nbsp;Nicholas Bamforth, “Legitimate Expectation and Estoppel” (1998) 3 Jud Rev 196.<br><span style=\"box-sizing: inherit; font-size: 14.6667px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em; margin-top: 0px;\">27</span>&nbsp;M.P. Jain and S.N. Jain,&nbsp;<em style=\"box-sizing: inherit;\">Principles of Administrative Law&nbsp;</em>(7<span style=\"box-sizing: inherit; font-size: 14.6667px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em; margin-bottom: 0px;\">th</span>&nbsp;edn., EBC 2013).<br><span style=\"box-sizing: inherit; font-size: 14.6667px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em; margin-top: 0px;\">28</span>&nbsp;359 US 535 (1959); the principle espoused in this judgment has been followed by this Court in&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Amarjit Singh Ahluwalia (Dr)&nbsp;</span>vs&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">State of Punjab</span>, (1975) 3 SCC 503,&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Sukhdev Singh&nbsp;</span>vs&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Bhagatram Sardar Singh Raghuvanshi</span>, (1975) 1 SCC 421 (concurring opinion of Justice K K Mathew) and&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder;\">Ramana Dayaram Shetty&nbsp;</span>vs&nbsp;<span style=\"box-sizing: inherit; font-weight: bolder; margin-bottom: 0px;\">International Airport Authority of India</span>, (1979) 3 SCC 489.<br><span style=\"box-sizing: inherit; font-size: 14.6667px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em; margin-top: 0px; margin-bottom: 0px;\">29</span>&nbsp;(1998) 7 SCC 66.<br><span style=\"box-sizing: inherit; font-size: 14.6667px; line-height: 0; position: relative; vertical-align: baseline; top: -0.5em; margin-top: 0px; margin-bottom: 0px;\">30</span>&nbsp;[2003] 1 WLR 348.<br>32 (2016) 4 SCC 236.<br>35. (2011) 6 SCC 508.</h1><div id=\"wordads-preview-parent\" class=\"wpcnt\" style=\"box-sizing: inherit; text-align: center; line-height: 0; margin: 32px auto; max-width: calc(66.6667vw - 28px); color: rgb(30, 30, 30); font-family: &quot;Crimson Text&quot;, &quot;Baskerville Old Face&quot;, Garamond, &quot;Times New Roman&quot;, serif; font-size: 22px; background-color: rgb(255, 255, 255);\"><div class=\"wpa\" style=\"box-sizing: inherit; position: relative; max-width: 100%; text-align: left; transform: translate3d(0px, 0px, 0px); display: inline-block !important; margin-top: 0px; margin-bottom: 0px;\"></div></div>', '046687f4771490662041f9531a55220f.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '', 1, '', '', '2020-12-02 02:44:18', '2020-12-21 09:16:26');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(20, 'WmMVkvC5Khl0ru9Ihp7uCrqpp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Marriage Act', 'Cruelty (2015) 8 SCC 336. Hindu Marriage Act. \"Cruelty\". Wife abusing husband, calling him son of a prostitute etc are not normal acts. Cruelty established. Divorce granted.', '6d0c06c99289eaec526e6a8035e91929.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 18:20:44', '2020-12-22 20:17:50'),
(21, 'scVD4yRDdzg6Vu71AB58tJ7XL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Trial. Data gathered from smartphone or email account does NOT ipso facto prove the guilt of the accused. The data has to be proved during the course of the trial. Karnataka High Court. 12 March 2021. ', '<h4>Criminal Trial. Data gathered from smartphone or email account does NOT ipso facto prove the guilt of the accused. The data has to be proved during the course of the trial. Karnataka High Court. 12 March 2021. Please click the following link to read the main post.&nbsp;&nbsp;</h4><h4><br><a href=\"https://dakshalegal.com/judgements/actionRead/MRdFOROIjVzZXU66DGOO7Q8Z0\" target=\"_blank\">https://dakshalegal.com/judgements/actionRead/MRdFOROIjVzZXU66DGOO7Q8Z0</a></h4>', '4b515a6d001ee56ba39def66b5585154.PNG', '6691d030c469643cb1aee0a5306ead5c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-12', 1, '', '', '2020-12-02 18:21:37', '2021-03-14 18:01:33'),
(22, 'XT3fHhbkiCtJg9FpF9EoLKWXi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Decree challenged on the ground of fraud', 'Evidence required to set aside a decree on the ground of fraud. When can a decree be set aside on the ground of fraud on Court. In this case fraud on court not established. (2015) 4 SCC 196', '0db7477d330327c60533effff5becbd2.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 18:23:24', '2020-12-22 20:17:13'),
(23, 'lMroKyHO1AG6balkQlJqz2Loa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constitution of India. State within the meaning of Article 12', 'State\" meaning explained. Writ maintainable against an authority only if the nature & extent of duty imposed on it is public in nature.  Even then, all its decisions are not amenable to writ jurisdiction. Only those having public element therein can be judicially reviewed. (2015) 4 SCC 670', '6646a81236a7ca3b629feffcfca66680.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 18:24:37', '2020-12-22 20:16:55'),
(24, 'F5RWzo7EpkodmGQC5O0p0cQPB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Specific Relief Act, 1963 - Section 28(1) - Rescission of Contract - Parameters - Sale Agreement annulled at execution stage', '<div><b>T.L. Rajagopal v. S.N. Shivakumar, 2014 SCC OnLine Kar 10072 : ILR 2014 KAR 4035 : (2014) 3 KCCR 2182 : (2014) 4 AIR Kant R 701 : (2014) 6 Kant LJ 423 : (2014) 4 ICC 275 : AIR 2015 (NOC 433) 160, at page 4052 :</b></div><div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Decree for specific performance being in the nature of a preliminary decree, the Court after passing of the said decree does not become functus officio. It retains the jurisdiction to conclude the further steps to be taken in the suit. The decree holder chooses to file an execution&nbsp; petition for getting the sale deed registered through the Court when the defendant who suffered the decree fails to obey the same. Though called ‘execution proceedings’, it is nothing but continuation of the original suit. In a suit for partition, after the preliminary decree is passed, to give effect to the preliminary decree, it is necessary to initiate final decree proceedings. But in a suit for specific performance it is called as ‘execution proceedings’. Thus when the Court that passed the decree for specific performance and the Court executing the said decree are one and the same, Section 28 of the Act gives equal opportunity to the parties to the suit. If the plaintiff/decree holder for any reason is unable to deposit the balance sale consideration, he is given a right to apply to the Court that passed the decree seeking extension of time to deposit the money and the Court is vested with the power to grant such extension. At the same time when the plaintiff commits default in making payment, a right is conferred upon the defendant/judgment debtor to approach the Court under Section 28 of the Act seeking rescission of the contract. Here again the Court has the discretion to rescind the contract notwithstanding the fact that the decree has attained finality.</span></div></div><div style=\"text-align: justify;\">KUMAR, J.:— This writ petition is preferred by the defendant/judgment debtor challenging the order passed by the Executing Court dismissing his application under Section 28(1) of the Specific Relief Act, 1963 (Hereinafter referred to as ‘The Act’ for short).</div><div style=\"text-align: justify;\">2. For the purpose of convenience, the parties are referred as per their original rank in the suit.</div><div style=\"text-align: justify;\">3. The plaintiff filed a suit for a decree of specific performance of the agreement of sale dated 16.08.1997 against the defendant alleging that the defendant had agreed to sell the schedule property in his favour for Rs. 4,60,000/-. Under the said agreement a sum of Rs. 1,75,000/- was paid as advance by him. The balance sale consideration of Rs. 2,85,000/- had to be paid at the time of registration of the sale deed. He was constrained to file the suit when the defendant failed to execute the sale deed in his favour as agreed. Though duly served with the suit summons, the defendant did not contest the suit&nbsp; and therefore, the decree came to be passed on 26.03.2003 directing the defendant to receive the balance sale consideration from the plaintiff and to execute the registered sale deed failing which he was reserved the liberty of taking steps to get the sale deed executed and registered through the Court Commissioner by depositing the balance sale consideration amount after the appeal time is over.</div><div style=\"text-align: justify;\">4. After the decree, the plaintiff issued a notice to the defendant expressing his readiness to pay the balance sale consideration and called upon the defendant to receive the consideration and execute the sale deed. The defendant did not oblige. Therefore, the plaintiff filed Ex. No. 34/2003 to execute the decree.</div><div style=\"text-align: justify;\">5. The record shows that the judgment debtor/defendant, to stall the execution proceedings not only filed an application under Order XXI Rule 97 of CPC but also got filed another application under the same provision through his daughter-in-law. However these applications came to be dismissed by the Executing Court. Thereafter, the defendant/judgment Debtor filed I.A. 7 under Section 28 of the Act on 08.03.2011 for rescission of the contract and dismissal of the execution petition.</div><div style=\"text-align: justify;\">6. It is the defendant/judgment debtor’s case that the suit came to be decreed exparte on 26.03.2003 and the time to file an appeal&nbsp; against the exparte decree expired on 25.04.2003. The decree is silent as to the outer limit within which the plaintiff should deposit the balance sale consideration from 25.04.2003 and therefore the exparte decree passed in favour of the plaintiff/decree holder is a nullity being contrary to the provisions of Section 28 of the Act. Further the decree holder has not deposited the balance amount till date and therefore, the alleged contract of sale agreement needs to be rescinded and cancelled in the interest of justice and equity. The decree is not executable. The plaintiff/decree holder filed objections to I.A. 7 and sought its dismissal contending that since the defendant/Judgment Debtor failed to comply with the decree, he initiated the execution proceedings well in time and the question of depositing the amount would arise only at the time of the execution of the registered sale deed.</div><div style=\"text-align: justify;\">7. The executing Court, after considering the rival contentions and taking note of the decisions relied on by the parties, has dismissed the I.A. holding that no time limit is prescribed in the decree for depositing the balance sale consideration, by the plaintiff. After passing of the decree, the decree holder has filed the execution case only after issuing notice to the judgment debtor stating that he is ready with the balance sale consideration. The defendant did not reply to the notice nor came forward to comply with the decree. Nor has the judgment debtor filed any appeal against the exparte judgment and decree. On the other hand, he got an application filed through his son seeking&nbsp; stay of the further proceedings in the execution petition and another application through one Parvathi under Order XXI Rule 97 of CPC to stall the execution of the proceedings. The Decree holder in fact has deposited the balance sale consideration in the Court on 14.07.2011. The judgment debtor has not come to the Court with clean hands and therefore he is not entitled to the discretionary relief.</div><div style=\"text-align: justify;\">8. The present writ petition is filed against the above order passed by the executing Court.</div><div style=\"text-align: justify;\">9. Learned Counsel for the defendant/judgment Debtor assailing the impugned order argued that, under the terms of the decree, the plaintiff was expected to deposit the balance sale consideration after expiration of the time prescribed for filing an appeal and therefore, the executing Court could not have held that no time is fixed for payment of the sale consideration. Secondly, it was argued that even after filing of the execution petition, balance sale consideration was not deposited and it was deposited only after the Judgment debtor filed I.A. 7 under Section 28 of the Act. The plaintiff/decree holder had not even filed an application seeking extension of time to deposit the balance sale consideration. The decree is dated 26.03.2003 and the balance sale consideration is deposited nearly 8 years thereafter i.e., on 14.07.2011. In view of these circumstances, it was urged that the agreement entered&nbsp; into by the parties is to be rescinded in terms of Section 28 of the Act and execution petition be dismissed.</div><div style=\"text-align: justify;\">&nbsp;:&nbsp;</div><div style=\"text-align: justify;\">10. Per contra, Learned Counsel for the plaintiff/decree holder arguing in support of the impugned order submitted that, as no time is fixed in the decree, the decree holder, after passing of the decree, issued notice expressing his readiness and willingness to pay the balance sale consideration and obtain the sale deed. When this request was not acceded to, the decree holder was constrained to file the execution petition within five months, which conduct clearly demonstrates that, he was ready to perform his part of the contract. The execution petition was stalled by the judgment debtor by filing applications after applications through his daughter-in-law as well as the son for which the decree holder cannot be blamed. In fact, the decree holder has deposited the amount on 14.07.2011. I.A. 7 is not maintainable on the execution side and it ought to have been filed in the original suit itself as is clear from the provisions of Section 28 of the Act.</div><div style=\"text-align: justify;\">11. In the light of the aforesaid facts and rival contentions, the points that arise for my consideration in this writ petition are as under:—</div><div style=\"text-align: justify;\">1. Whether an application U/s. 28 of the Act is maintainable on the original side or in the execution&nbsp; proceedings initiated by the decree holder to execute the decree?</div><div style=\"text-align: justify;\">2. Whether the Judgment debtor has made out a case for rescission of the contract as provided U/s. 28 of the Act?</div><div style=\"text-align: justify;\">12. In order to answer the above questions, it is necessary to have a look at Section 28 of the Act which deals with rescission of contracts for sale or lease of immovable property in certain circumstances when already specific performance has been decreed by the Court. The said provision reads thus:—</div><div style=\"text-align: justify;\">“28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed. — (1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit&nbsp; in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require.</div><div style=\"text-align: justify;\">(2) Where a contract is rescinded under subsection (1), the court:—</div><div style=\"text-align: justify;\">(a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and</div><div style=\"text-align: justify;\">(b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and if the justice of the case so requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract.</div><div style=\"text-align: justify;\">&nbsp;(3) If the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (I), the court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely:</div><div style=\"text-align: justify;\">(a) the execution of a proper conveyance or lease by the vendor or lessor;</div><div style=\"text-align: justify;\">(b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease.</div><div style=\"text-align: justify;\">(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be.</div><div style=\"text-align: justify;\">(5) The costs of any proceedings under this section shall be in the discretion of the court.”</div><div style=\"text-align: justify;\">&nbsp;13. Therefore, to invoke the above provision, the person who has obtained a decree for specific performance ought to have failed to pay the money or other sum which the Court has ordered him to pay, within the period allowed by the decree or such further period as the Court may allow. In such an event the person who has suffered the decree has a right to apply to the Court in the same suit in which the decree was passed to have the contract rescinded. On such an application being made, the Court may by order rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require. Once such an order for rescission of contract is made, the Court shall direct the purchaser or the lessee, if, he has obtained the possession of the property under the contract, to restore such possession to the vendor or lessor and also may direct payment to the vendor or lessor to pay the rents and profits which have accrued in respect of the property from the date on which the possession was obtained by the purchaser or lessee until restoration of possession to any vendor or lessor, and if the justice of the case so requires, the refund of any sum paid by the vendee or lessee or earnest money or deposit in connection with the contract.</div><div style=\"text-align: justify;\">14. The question whether an application under Section 28 of the Act is to be made in the same suit in which the decree is passed, has been the subject matter of interpretation by various High Courts&nbsp; in the country. In view of divergent opinion expressed by various High Courts, the Apex Court had an occasion to consider the same in the case of Ramankutty v. Avara1 where in para 6 it is held as under.</div><div style=\"text-align: justify;\">“6. The question then emerges is whether it should be on the original side or execution side. Section indicates that it should be “in the same suit”. It would obviously mean in the suit itself and not in the execution proceedings. It is equally settled law that after passing the decree for specific performance, the Court does not cease to have any jurisdiction. The court retains control over the decree even after the decree has been passed. It was open to the court to exercise the power under Section 28(1) of the Act either for extension of time or for rescinding the contract as claimed for. Since the execution application has been filed in the same court in which the original suit was filed, namely, the court of first instance, instead of treating the application on the execution side, it should have as well been numbered as an interlocutory application on the original side and disposed of according to law. In this view, we feel&nbsp; that the Andhra Pradesh High Court is not correct. The High Court, therefore, is not right in dismissing the application treating of transferring it on the original side for dealing with it according to law.”</div><div style=\"text-align: justify;\">15. The Apex Court in the case of V.S. Plalanichamy Chettiar Firm v. C. Alagappan2 has reiterated above position of law in para 16 of the judgment:</div><div style=\"text-align: justify;\">“16. In view of the decision of this Court in Ramankutty Guptan’s case (1994) AIR SCW 1533) when the trial Court and the executing Court are same, executing Court can entertain the application for extension of time though the application is to be treated as one filed in the main suit. On the same analogy, the vendor judgment—holder can also seek rescission of the contract of sale or take up this plea in defence to bar the execution of decree. One of the ground on which the trial Court dismissed the execution application was that the decree holder did not pay the balance of consideration as per the sale agreement and also did not pay within the time stipulated by the Court in the decree.”</div><div style=\"text-align: justify;\">&nbsp;16. Again in the case of Chanda (Dead) through LRs. v. Rattni3. at para 10 the Apex Court has held that:</div><div style=\"text-align: justify;\">“10. The decree for specific performance has been described as a preliminary decree. The power under Section 28 of the Act is discretionary and the Court cannot ordinarily annul the decree once passed by it. Although the power to annul the decree exists yet Section 28 of the Act provides for complete relief to both the parties in terms of the decree. The Court does not cease to have the power to extend the time though the trial Court had earlier directed in the decree that payment of balance price to be made by certain date and on failure suit to stand dismissed. The power exercisable under this Section is discretionary.”</div><div style=\"text-align: justify;\">17. In the light of the ratio laid down in the aforementioned judgments, the law on the point can be said to be fairly settled: A decree for specific performance being in the nature of a preliminary decree, the Court after passing of the said decree does not become functus officio. It retains the jurisdiction to conclude the further steps to be taken in the suit. The decree holder chooses to file an execution&nbsp; petition for getting the sale deed registered through the Court when the defendant who suffered the decree fails to obey the same. Though called ‘execution proceedings’, it is nothing but continuation of the original suit. In a suit for partition, after the preliminary decree is passed, to give effect to the preliminary decree, it is necessary to initiate final decree proceedings. But in a suit for specific performance it is called as ‘execution proceedings’. Thus when the Court that passed the decree for specific performance and the Court executing the said decree are one and the same, Section 28 of the Act gives equal opportunity to the parties to the suit. If the plaintiff/decree holder for any reason is unable to deposit the balance sale consideration, he is given a right to apply to the Court that passed the decree seeking extension of time to deposit the money and the Court is vested with the power to grant such extension. At the same time when the plaintiff commits default in making payment, a right is conferred upon the defendant/judgment debtor to approach the Court under Section 28 of the Act seeking rescission of the contract. Here again the Court has the discretion to rescind the contract notwithstanding the fact that the decree has attained finality.</div><div style=\"text-align: justify;\">18. Specific performance being a discretionary relief, the Court has ample power to do justice between the parties, if anyone of them were to not act in terms of the decree. As such the contention that an application under Section 28 of the Act ought to be filed in the suit and&nbsp; not in execution proceedings cannot be accepted. I.A. 7 filed under Section 28 of the Act by the defendant/judgment debtor in the execution proceedings seeking rescission of contract therefore is perfectly maintainable and it is to be treated as an interlocutory application filed in the suit for specific performance itself.</div><div style=\"text-align: justify;\">19. Admittedly, the defendant/judgment debtor was duly served with the summons in the suit for Specific Performance. He appeared through an Advocate, sought for time but did not file the written statement or participate in the proceedings. Therefore, the suit of the plaintiff/decree holder came to be decreed exparte and the operative portion of judgment of the Trial Court reads as under:—</div><div style=\"text-align: justify;\">“The suit is decreed with costs.</div><div style=\"text-align: justify;\">The defendant is directed to receive balance sale consideration of Rs. 2,85,000-00 from the plaintiff and to execute and register the sale deed in favour of the plaintiff at his costs in pursuance of the sale agreement dated 16.08.1997 with respect to suit property.</div><div style=\"text-align: justify;\">Failure on the part of the defendant to execute the sale deed the plaintiff is at liberty to take steps to get the sale deed executed and registered through the Court Commissioner by depositing the balance sale consideration amount after the appeal time is over.”</div><div style=\"text-align: justify;\">(Underlining by me)</div><div style=\"text-align: justify;\">20. What the plaintiff has to do if the defendant were to not obey the decree passed by the Court is therefore, clearly spelt out in the judgment of the Trial Court. The plaintiff was given the liberty to take steps to get the sale deed executed and registered through the Court by depositing the balance sale consideration after the time prescribed for filing the appeal expired. In other words, the plaintiff had to deposit the balance sale consideration only after expiry of the appeal period.</div><div style=\"text-align: justify;\">21. The judgment and decree was delivered on 26.03.2003 and an appeal against the said decree ought to have been filed within 30 days, but the defendant admittedly has not chosen to file any appeal. After expiry of the appeal period, without depositing the balance consideration in Court, the plaintiff issued a legal notice calling upon the defendant to receive the balance sale consideration and execute the sale deed. The defendant did not reply. Then the execution proceedings came to be initiated. The balance consideration was not deposited either before or along with the execution petition.</div><div style=\"text-align: justify;\">22. The Judgment debtor/defendant entered appearance, in the execution case. Then he filed I.A. 7 under Section 28(1) of the Act seeking rescission of the contract on the ground of non-deposit of the amount in terms of the decree. Thereafter, the balance sale consideration came to be deposited on 14.07.2011 by the decree holder. The plaintiff/decree holder was expected to file an application under Section 28(1) of the Act seeking extension of time to deposit the amount by showing sufficient cause for the lapse on his part. Till date no such application is filed by the plaintiff/decree holder.</div><div style=\"text-align: justify;\">23. If the defendant was at fault, he was not willing to obey the decree, if the plaintiff had deposited the money after the expiry of the appeal period as stipulated in the decree or at least on the day he filed the execution petition, that would have been sufficient to demonstrate his bona fides. The balance sale consideration of Rs. 2,85,000/- had to be deposited on the date of the suit or the date of the decree or at least on the date of filing of the execution petition. But the plaintiff/decree holder appears to have woken up after seeing the averments in I.A. under Section 28 of the Act and made up his mind to deposit the money on 14.07.2011 which is nearly 8 years after the passing of the decree and 14 years from the date of the agreement.</div><div style=\"text-align: justify;\">24. The subject matter of the suit is an immovable property situated in Tiptur Town. The value of the immovable properties situated in towns and cities is multiplying every year. The plaintiff/decree holder&nbsp; who had the benefit of the decree also had the benefit of having Rs. 2,85,000/- with him for 14 long years and did not even seek extension of time to deposit the said amount. Today if the Court were to direct the defendant/judgment debtor to execute the sale deed for a consideration which he should have received 14 years ago, it would cause great hardship and irreparable injury, as the said amount would be of no value at all. In that view of the matter, the contract of sale requires to be rescinded and consequently, the decree for specific performance also requires to be annulled.</div><div style=\"text-align: justify;\">25. Where a contract is rescinded under sub-Section (1) of Section 28 of the Act, if the justice of the case so requires, the Court can as provided under Section 28 (2)(b) of the Act order for refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract. Similarly Section 65 of the Contract Act, 1872 also casts an obligation on the person who has received an advantage under void agreement or contract that becomes void, to restore it or make compensation for it, to the person from whom he received it. Therefore the defendant/judgment debtor shall refund the advantage/earnest money received from the plaintiff/decree holder under the agreement i.e., a sum for Rs. 1,75,000/- together with interest @ 18% p.a. from the date of receipt of amount till the date of payment, if he wants the rescission of the contract.</div><div style=\"text-align: justify;\">26. In the result I pass the following:</div><div style=\"text-align: justify;\">ORDER</div><div style=\"text-align: justify;\">The writ petition is allowed. The impugned order is hereby set-aside and I.A. filed under Section 28 of the Specific Relief Act is allowed.</div><div style=\"text-align: justify;\">The agreement of sale dated 16.08.1997 is rescinded and the decree for specific performance dated 26.03.2003 is annulled subject to the condition that the defendant/judgment debtor shall refund earnest money of Rs. 1,75,000/- received under the agreement to the plaintiff/decree holder with interest @ 18% p.a. from the date of receipt of the said amount till the date of payment, within three months from this day.</div><div style=\"text-align: justify;\">In the event of the defendant/judgment debtor failing to pay the amount to the plaintiff/decree holder or deposit the same in the Court within 3 months from the date of receipt of this order, the order of this Court rescinding the agreement stands vacated and order of the executing Court on I.A. 7 stands restored.</div><div style=\"text-align: justify;\">———</div><div style=\"text-align: justify;\">1. (1994) 2 SCC 642 : AIR 1994 SC 1699</div><div style=\"text-align: justify;\">2. (1999) 4 SCC 702 : AIR 1999 SC 918</div><div style=\"text-align: justify;\">3. (2007) 14 SCC 26 : AIR 2007 SC 1514</div>', '265e9cf3dad3132d4743b748c3bd3400.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 18:29:15', '2021-01-22 23:26:30'),
(25, 'ZZkplcjO3Sp8U4qXbxWa3jHgU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Penal Code. Section 302. Murder', 'Bride burning. Medical evidence preferred as against oral. Dying declaration believed. Plea of alibi discarded. \"A man will not meet his Maker with a lie in his mouth\" \"Truth sits on the lips of a dying man\" Reiterated (2015) 4 SCC 749', '571456bb5b5d9e2f2b8bdc9b3eada237.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 18:34:42', '2020-12-22 20:16:20'),
(26, 'KPGWvqklqjd3x31UluDFqygGp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Penal Code. Section 302. Bride burning. When guilt is established, maximum penalty to be imposed', '<div>Inebriation when relevant. Accused knowing full well the consequences, not a mitigating factor. Subsequent act of pouring water is by guilt. Doesn\'t mitigate the crime. (2015) 7 SCC 641</div>', '900cc7e3efddc9dee300804ff782b852.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 18:37:30', '2020-12-22 20:16:04'),
(27, 'iMNx2dtTygBBnxZn7TGHQxu8Q', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transfer of Property Act Suit for ejection', 'Notice asking the tenant to vacate immediately but suit filed after 6 months from the date of notice. Notice is valid & suit maintainable. (2015) 5 SCC 539 -', '1bb1e0d18059e9acc8d0d25c3bf97d90.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 18:41:20', '2020-12-22 20:15:46'),
(28, 'DKpK49L8dyJXEKtKrGSTThxLK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Specific Relief Act', 'Suit for specific performance. Prayer for possession not made. Court can not grant relief of possession unless prayer for delivery of possession is specifically sought or is present by necessary implication from nature of relief prayed for.  (2015) 8 SCC 219.', 'ec1b20d0a67ee544461b832e7c0f7691.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 18:42:35', '2020-12-22 20:15:29'),
(29, 'xvaFbB6llYKtS865XdBlBcw1W', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constitution of India Article 226.', '<p>http://dakshalegal.com/beta/uploads/judgements/e9753bfa94d37da8eacccc991589bd80.jpghttp://dakshalegal.com/beta/uploads/judgements/e9753bfa94d37da8eacccc991589bd80.jpg<br>Writ Petition. Prayer. Relief not sought for in prayer part, but deductible from body of writ petition on basis of grounds &amp; averments made. Writ maintainable. (2015) 7 SCC 728.</p>', 'e9753bfa94d37da8eacccc991589bd80.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 18:43:07', '2021-01-22 23:06:22'),
(30, 'LOITqhPcjDIS8yv2EQsYombeV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Code of Criminal Procedure . Section 357', 'Compensation to victims of crime. Apart from sentence & fine, compensation to be paid by accused. Reduction of sentence by High Court - not justified (2015) 5 SCC 197', '1a0fc3bee9ef82ecabbd729372882ef3.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 18:44:13', '2020-12-22 20:14:56'),
(31, 'U10UDITJ8M0xsr43afVpT1cLW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code- Order 23', 'Power of counsel to enter into compromise. Principles summarised. It depends on authority conferred in vakalatnama on counsel and instructions given by client from time to time. Care & caution to be exercised by counsel. Govt advocates\' power to compromise. (2015) 5 SCC 747', '376668a2fea862aed3dd212af6499cf1.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 18:45:21', '2020-12-22 20:14:37'),
(32, 'oCrXRrXE867gBc5qsX9N0ygcl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Code of Criminal Procedure Section 482', 'Quashing of Criminal cases. Non payment of consultancy fees to the complainant can only amount to a civil wrong. No case under Section 420 IPC made out. Proceedings quashed. Fraudulent/dishonest intention from the inception has to be proved to constitute fraud (2015) 8 SCC 293.', '3059bf56009924a99f1034fdf8af6f31.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 18:45:51', '2020-12-22 20:14:19'),
(33, '0yQjezBF4WUSf5jQhKsvGxQ1J', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Code of Criminal Procedure Section 156(3)', 'All applications under Section 156(3) seeking direction for FIR registration must be supported by an affidavit. Also see: How this man abused the process of criminal law to the hilt. (2015) 6 SCC 287.', '74e1b990123eccff0d4ef2d126de2eb7.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 18:46:28', '2020-12-22 20:14:00'),
(34, '170fCAl2NMclFJ6tnuKDkoU6f', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code- Amendment of CPC by Commercial Courts Act, 2015', 'The same does not apply to non-commercial suits. Filing of written statement is governed by the earlier provision only.?? Desh Raj vs Balkishan (2020) 2 SCC 708  ·', 'de4642849abf76af5871aef700f7704a.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 18:47:20', '2020-12-22 20:13:38'),
(35, 'XZxtX64JCjweiFvCGuzbZa6pu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Death Warrant', 'Issuance of death warrants without allowing the convicts to exhaust all legal remedies. Violative of Article 21 of the Constitution of India. Human dignity affected in such a scenario. (2015) 6 SCC 702.   ·', 'ad2eb79dd43198f5f1d41a3624cc4f04.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 18:49:02', '2020-12-22 20:13:20'),
(37, '0oTbUJiX6Dh5P2rzBHMxYpxSS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Investigation', 'Superior officer cannot meet the accused without the presence of the investigating officer. Investigations must not only be fair but must appear to have been conducted in a fair manner.  (2015) 6 SCC 332.', '0b97460252ce76c7cceffd1d30843601.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:06:00', '2020-12-22 20:12:42'),
(38, 'b7nqPsRhKvIk7lOQdsxCfsQTd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Trial. Test Identification Parade. ', 'The evidence is not substantive evidence. Conviction cannot be based solely on the identity of the accused by the witnesses in the test identification parade. (2015) 6 SCC 623.', 'fc8079ca9a11ba623a8a19a2c2df0588.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:06:26', '2020-12-22 20:12:22'),
(39, 'cacVorBcStCeMctfqeco5z9g1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Penal Code Dowry death', 'Conviction ordered purely on circumstantial evidence. Law on circumstantial evidence discussed  (2015) 4 SCC 281-', '92e0cb014d23000ed474db69195c7fb6.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:07:30', '2020-12-22 20:12:03'),
(40, 'qJmLB5tPnZ2L5FwMDmSGl3VLl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law Recruitment', 'Once the procedure of selection starts, there cannot be any amendment of procedural law regarding reservation in the matter of selection to posts, with retrospective effect.  · (2015) 8 SCC 410.', '6161fbde1d461991159a5fdff0240858.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:08:09', '2020-12-22 20:11:47'),
(41, 'BHjB9WgUAJhuTTAvlVi7argoo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Suspension', 'Prolonged suspension of an employee & renewal strongly deprecated. Suspension cannot exceed three months if within this period charge sheet is not served on the employee. If served within 3 months, reasoned order must be passed for extension of suspension. (2015) 7 SCC 291', '970797844d1ffe06f1704d83d4d56c07.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:10:22', '2020-12-22 20:11:31'),
(42, 'Ycarf6mvMF6gCVNGhYPoWgYjJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contract Act, 1892. Novation of contracts', 'Has to be on fulfilment of all procedural requirements. (2015) 7 SCC 728', '276c130b4369a3691518b019e8a00949.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:10:52', '2020-12-22 20:11:11'),
(43, '1fPSStZMe5BDhNr3vtIMd07B0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prevention of Corruption Act.', 'Ingredients. Demand & acceptance necessary. IMP: Reduction of sentence. Accused aged 74 years. Offence took place 19 years ago. Undergone mental agony. Sentence reduced from four years to to one year. (2015) 8 SCC 395.', 'acff03d1fcd96fbe3659e9793c6d568c.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:11:22', '2020-12-22 20:10:51'),
(44, 'uQPAeb3torOgLABcDdIcxS78u', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Law. Conversion', 'From Scheduled Caste to Christianity &amp; re-conversion from Christianity to Hindu religion. In such an event, Scheduled Caste is restored.&nbsp; <br><br><b>Conditions: <br></b>1. Clear cut proof that he belong to Scheduled caste <br>2. Reconversion to original religion to which parents belonged. <br>3. Acceptance by community. (2015) 4 SCC 1', '4073932d1973dded781418cf04cd9d30.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:11:53', '2021-01-22 22:45:12'),
(45, 'ddtBcLSKgDRX7tIhM6x8IdOWm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Section 138', 'Cheque bounce case. Pro forma date on Cheque leaf of the year 1999 but transaction of the year 2007. Not fatal to complainant\'s case. Defence that the Cheque was issued in 1999 as security & was used by the Complainant in 2007 though loan was repaid not accepted. (2015) 8 SCC 378.', 'b9965eb239ebbc16a8d607d298e6d297.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:12:31', '2020-12-22 20:10:15'),
(46, 'Vq5BFWv7q0Ki0HRw3nbStnUp3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Section 138 ', '1. Person who draws Cheque on his account alone is liable.&nbsp; <br>2. Offence by Company. If the accused is the Managing Director, no need to make averments that he was the person in charge of the affairs of the company.&nbsp; <br>3. Compensation. Twice the amount of Cheque awarded with 9% interest in this case. (2015) 9 SCC 622.', '2a227456099ee9bc6571cf7c291c0e8c.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:13:16', '2021-01-22 22:43:19'),
(47, 'XeKbua2ghdw12YGcs25drDTxF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Specific Relief Act. Suit for declaration', 'Once the court declares the ownership, it has to necessarily decide the question of possession & removal of encroachment, demolition etc.  (2015) 5 SCC 661 -', '1478ea1dc72846f93c2409af36a5fb1c.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:13:54', '2020-12-22 20:09:37'),
(48, 'CXXMYTLuZsQrq6jiakSqxbswK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Penal Code Sections 306 & 498-A ', 'Cruelty, torture and harassment for dowry proved. However case of death was accidental even as per the dying declaration of the victim. Mother-in-law and sister-in-law acquitted under 306, IPC (abetment to commit suicide). However convicted under Section 498-A, IPC.(Husband or relative of husband of a woman subjecting her to cruelty) (2015) 10 SCC 390  -', '454a031a6afd55f946e8bdac62911c48.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:14:41', '2020-12-22 20:09:18'),
(49, 'x7ZJ31uQ6LDAspNeli1WpSv9H', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Penal Code. Self defence', 'Not available to aggressor. Law of private defence does not apply where there is no apprehension of danger. Law doesn\'t confer a right of self defence on a man when he himself was the aggressor. (2015) 6 SCC 268 -', 'aab5765369f96e591b4ce20251a69672.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:15:16', '2020-12-22 20:09:01'),
(50, 'Wy2poG5CK9TPLQvILU67BxRUh', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Code of Criminal Procedure Sections 227 & 319', 'A person added as accused during the trial under Section 319 CR.P.C can not seek discharge under Section 227. Discharge of an accused added under Section 319 runs contrary to the scheme itself. It\'s only after the Court is satisfied he has committed an offence, he is added as accused. Discharge of such an accused defeats the very purpose of the scheme. (2015) 9 SCC 244.', 'bb9f5d6c7a3fdb4137d38c4778e17065.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:16:21', '2020-12-22 20:08:44'),
(51, 'gdud5mlloLn6f3eoOzYHal3Ej', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Code of Criminal Procedure Section 156(3) and 202', 'Under Section 202, the Magistrate can seek report from Police to decide whether or not there is sufficient ground to proceed in the case. At this stage, Police have no power to arrest. Whereas under Section 156(3), Magistrate has the power to direct investigation. This power under 156(3) is to be exercised only after application of mind by Magistrate. (2015) 6 SCC 439. Ramdev Food Products P Ltd vs State of Gujarat.', 'ac990c397984e6cdbb6543d463b4d9a5.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:17:18', '2020-12-22 20:08:19'),
(52, 'TnaoKuiLa8P9RiIb3Bu3Odm9F', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Regularisation of Casual workmen', 'In case of unfair labour practice, Government as an employee can\'t ask for a different treatment. Umadevi case (2006) 4 SCC 1 has not overridden the powers of Industrial & Labour Courts in passing appropriate orders once unfair labour practice was established. Article 14 & 16 of the Constitution have no application to private employment. (2015) 5 SCC 786', '8e5b6b33ec0e437872b2fc001903f6fa.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:17:58', '2020-12-22 20:08:00'),
(53, 'W9ksuqcH4OQHyjSUyxu9Ayqsk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Order 6 Rule 17', '1. CPC - Fresh pleadings and evidence which are in variation to the original pleadings cannot be taken unless the fresh pleadings are incorporated by way of amendment of the pleadings  2. Contingent contract. When the contract fails.  3. Evidence Act. Mere identification of the of person who allegedly signed document does not prove contents of the document. (2015) 9 SCC 755.', 'ce697c42215de4eab517da6b96f9959f.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:19:34', '2020-12-22 20:07:44'),
(54, 'ENsvLVquRsdN0s31nI3k68GNw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Income Tax -Educational Institutions', 'Exemption from Income Tax. Dominant Charitable object necessary. Annual exercise by authorities to check whether activities of institution are charitable to remain entitled to exemption.  (2015) 8 SCC 47.', '28e9ee64e4af4026e2b11b68373ca11e.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:20:08', '2020-12-22 20:07:26'),
(55, '2m07NXLMNf4n4Jzd7mX1k3P0L', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Penal Code Rape. Section 376', 'Girl eloped with boy. Conviction can be based on sole testimony of prosecutrix even without collaboration. However delay in filing FIR, non examination of recovery witness, etc leave a mark of doubt to treat testimony of prosecutrix as natural & truthful. Conviction set aside. (2015 7 SCC 272-', 'fd6026088f04b843e71031750c84c622.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:21:17', '2020-12-22 20:07:09'),
(56, 'eZA8JDEVBiGwHH5SlhTcTcVzk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Income Tax Act 1961. Long Term Capital Gains', 'Relevant date under Section 2(47) & 54 of the Act is the date of Agreement to sell & not the sale of the property. Agreement extinguishes the rights in the property within the meaning of Section 2(47). (2015) 5 SCC 775 -', '1ec15b222cd50509da7c45f7a12e196f.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:22:08', '2020-12-22 20:06:42'),
(57, '4WUDHFcv5pPr9w61rtLNLo0Ob', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Code of Criminal Procedure. Section 156(3) and 202', 'Under Section 202, the Magistrate can seek report from Police to decide whether or not there is sufficient ground to proceed in the case. At this stage, Police have no power to arrest. Whereas under Section 156(3), Magistrate has the power to direct investigation. This power under 156(3) is to be exercised only after application of mind by Magistrate. (2015) 6 SCC 439. Ramdev Food Products P Ltd vs State of Gujarat.', '0faf43bb906f189ec6d978565f408774.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:23:40', '2020-12-22 20:06:22');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(58, 'OcYkBcjS1HZaF5YSWSC22ZHOI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Supreme Court restores election petition of A. Manju against Prajwal Revanna M.P. by setting aside Karnataka High Court judgment. ', '<h4 style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\">A. Manju vs Prajwal Revanna&nbsp;<br></font><font color=\"#222222\" face=\"mainFontOP\">Civil Appeal 1774 of 2020 decided on 13 December 2021<br></font><font color=\"#222222\" face=\"mainFontOP\">Justice Sanjay Kishan Kaul and Justice M.M. Sundresh&nbsp;<br></font><font color=\"#222222\" face=\"mainFontOP\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/6512/6512_2020_36_1502_32086_Judgement_13-Dec-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/6512/6512_2020_36_1502_32086_Judgement_13-Dec-2021.pdf<br></a></font></h4><h4 style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><br></font><font color=\"#222222\" face=\"mainFontOP\">19. We must begin at the inception by stating that intrinsically, election law is technical in nature. In the present matter, an election conducted under an independent body like the Election Commission is sought to be assailed, where the mandate of the public has gone in a particular way. The allegations must strictly fall within the parameters of the manner in which such a mandate can be overturned. The primary plea taken by the appellant is largely that success in the elections was obtained by concealment of material, which would have been germane in determining the opinion of the electorate. In effect, were such material to be available with the electorate, they would have exercised another option on the basis of it. However, while the requirements to be met in the election petition may be technical in nature, they are not hypertechnical, as observed in the Ponnala Lakshmaiah16 case. We have considered the aforesaid aspect by quoting the observations made therein which have received the imprimatur of a larger Bench.<br></font></h4><h4 style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><br></font><font color=\"#222222\" face=\"mainFontOP\">20. In the conspectus of the aforesaid, if we examine the facts of the present case, the hyper-technical view sought to be taken of non-signing and verification of the index and the synopsis has been rightly rejected by the High Court.<br></font></h4><h4 style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><br></font><font color=\"#222222\" face=\"mainFontOP\">21. Thus, the real and core question before us is that in view of the allegations of the alleged non-disclosure of assets in Form-26 by respondent No.1 being cited as “corrupt practice”, would it be mandatory for the election petitioner to file an affidavit in Form-25 and what would be the consequences of not filing such an affidavit.<br></font></h4><h4 style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><br></font><font color=\"#222222\" face=\"mainFontOP\">22. We may take note of the Constitution Bench judgment of this Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore17 which opined that the defect in verification of an affidavit cannot be a sufficient ground for dismissal of the petitioner’s petition summarily and such an affidavit can be permitted to be filed later. This Constitution Bench judgment was also referred to in G.M. Siddeshwar18 case to come to a conclusion that non-compliance with proviso to Section 83(1) of the RP Act was not fatal to the maintainability of an election petition and the defect could be remedied, i.e., even in the absence of compliance, the petition would still be called an election petition. We cannot say that the High Court fell into an error while considering the election petition as a whole to come to the conclusion that the allegations of the appellant were not confined only to Section 33A of the RP Act, but were larger in ambit as undue influence and improper acceptance of nomination of respondent No.1 were also pleaded as violation of the mandate under Sections 123 and 100 of the RP Act.<br></font></h4><h4 style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><br></font><font color=\"#222222\" face=\"mainFontOP\">23. However, we are not persuaded to agree with the conclusion arrived at by the High Court that the non-submission of Form 25 would lead to the dismissal of the election petition. We say so because, in our view, the observations made in Ponnala Lakshmaiah19 case which have received the imprimatur of the three Judges Bench in G.M. Siddeshwar20 case appear not to have been appreciated in the correct perspective. In fact, the G.M. Siddeshwar21 case has been cited by the learned Judge to dismiss the petition. If we look at the election petition, the prayer clause is followed by a verification. There is also a verifying affidavit in support of the election petition. Thus, factually it would not be appropriate to say that there is no affidavit in support of the petition, albeit not in Form 25. This was a curable defect and the learned Judge trying the election petition ought to have granted an opportunity to the appellant to file an affidavit in support of the petition in Form 25 in addition to the already existing affidavit filed with the election petition. In fact, a consideration of both the judgments of the Supreme Court referred to by the learned Judge, i.e. Ponnala Lakshmaiah22 as well as G.M. Siddeshwar23, ought to have resulted in a conclusion that the correct ratio in view of these facts was to permit the appellant to cure this defect by filing an affidavit in the prescribed form.<br></font></h4><h4 style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><br></font><font color=\"#222222\" face=\"mainFontOP\">24. The arguments of learned counsel for respondent No.1 were predicated on the distinction between the absence of an affidavit and a defective affidavit. This pre-supposes that for an opportunity of cure to be granted, there must be the submission of a Form 25 affidavit which may be defective. This would be very narrow reading of the provisions. Once there is an affidavit, albeit not in Form 25, the appropriate course would be to permit an affidavit to be filed in Form 25. We have to appreciate that the petition is at a threshold stage. It is not as if the appellant has failed to cure the defect even on being pointed out so. This is not a case where the filing of an affidavit now in Form 25 would grant an opportunity for embellishment as is sought to be urged on behalf of respondent No.1.<br></font></h4><h4 style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><br></font><font color=\"#222222\" face=\"mainFontOP\">25. The appellant states the case clearly and in no uncertain terms with supporting material in the election petition. Whether the violation is made out by respondent no.1 or not would be a matter of trial but certainly not a matter to be shut out at the threshold.<br></font><font color=\"#222222\" face=\"mainFontOP\">26. The result of the aforesaid is that the impugned order of the learned single Judge dated 17.1.2020 is set aside and the application filed by respondent no.1 under Order 7 Rule 11, S. 151 of the said Code and S. 86(1) of the RP Act would stand dismissed with liberty to the appellant to file an appropriate affidavit in Form 25 within fifteen (15) days from today. The further proceedings in the election petition are required to be taken up urgently as almost two and a half years have gone on the preliminary skirmishes rather than the meat of the matter, which we are sure the learned single Judge of the High Court would so do&nbsp;<br></font></h4><h4 style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><br></font><font color=\"#222222\" face=\"mainFontOP\">27. The appeal is accordingly allowed leaving the parties to bear their own costs.</font></h4>', '1ac836e3f26e1dcc8c9e23fcad6fcf27.jpg', '50ce89e6ef20f8a211abbc0574bf4291.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-13', 1, '', '', '2020-12-02 19:24:50', '2021-12-14 05:35:30'),
(59, 'oQhAsqrXMs28Ihrt3L2WgiFcD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Doctrine of feeding the grant by estoppel', 'Operates in cases where the person acquires the right during his life time & suit can be filed against his legal representatives. But does not operate where the person dies without acquiring interest during his life time but his LRs acquire after his death. (2015) 5 SCC 691', '6658345a4a25d693848b4a554d09870a.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:26:36', '2020-12-22 20:05:44'),
(60, '7My10ZFqqwpOuv8x3et3d5jQa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Corporate criminal responsibility', '<div>When a company is the accused, it\'s directors can be roped in only if</div><div>(a). There is sufficient incriminating evidence against them coupled with criminal intent: or</div><div>(b). The statutory regime attracts attracts the doctrine of vicarious responsibility. Law on the point reiterated. (2015) 4 SCC 609 -</div>', 'b425721d369e02ee4c4e3f27dd4923ed.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:28:04', '2020-12-22 20:05:26'),
(61, 'zlTWWzala4Ja8ZTSJ9iOcTolZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Laws. Conviction', 'Whether sentence shall run \"Concurrently\" or \"Consecutively\". It is legally obligatory upon the trial court to while awarding sentence to specify in clear terms as to whether the sentence would run concurrently or consecutively.  (2015) 4 SCC 302 -', '26b15e4498faef2dbd483bc249eaf2d0.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:28:41', '2020-12-22 20:05:06'),
(62, 'H0YghKfmXRgJnlo6tDOZpZnxv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicle Act', 'Accident. Difference between Contributory and  Composite negligence. In case of composite negligence, the claimant can sue both or any one of the joint tortfeasors and to recover the entire compensation. Apportionment in case of composite negligence does not arise. (2015) 9 SCC 273.', '45d76745244c9aa79a99477e107d9181.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:29:53', '2020-12-22 20:04:47'),
(63, 'hRTxWQXJntJpbGtIXK4mxxdjO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Appointment', 'Right to be considered for appointment is not a vested right & is subject to minimum eligibility. Till an appointment is made, no vested right arises. Vested right - what is (2015) 8 SCC 129. .', 'f2423096251410c54aeb47f9b35e8f07.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:35:51', '2020-12-22 20:04:19'),
(64, 'z3w9GcTFGf3uukdyxXRy8rFGs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Penal Code Section 364-A', 'Constitutional validity upheld. Courts can interfere only when the punishment prescribed is so outrageously disproportionate to the offence or so inhuman or brutal that the same cannot be accepted by any standard of decency. (2015) 9 SCC 502.', '405e64cc3468e368881d506623226536.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:36:38', '2020-12-22 20:04:00'),
(65, '2y3QpPwXbuUvYpj15VsuVFWC1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act, 1996- Section 9', 'Interim relief. Where the contract specifies jurisdiction of court at particular place and such court has jurisdiction to deal with the matter, then all other courts are excluded.  (2015) 12 SCC 225.', '58af8ac69ea43db6d4b8c92f1fc1c9c1.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:37:06', '2020-12-22 20:03:36'),
(66, 'ftQI6rZJ7YOf8WwgH348Mi9yD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Daksha Legal drafting.  Power of attorney formats. ', '<p><b>Daksha Legal drafting. Power of attorney formats. <span style=\"background-color: rgb(255, 255, 0);\">PDF document enclosed.&nbsp;</span></b></p>', '04a4d5006561e352c932fa5a7c302d2f.JPG', '07f95dc419dcf70572a182e5c41c4799.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-14', 1, '', '', '2020-12-02 19:38:09', '2021-08-15 02:26:28'),
(957, 'fvqgBtFriYEpJYsGmgkmkrsIW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'Mortgage by way of Conditional Sale and a Sale with Condition to Purchase\' -  Supreme Court explains legal position. ', '<p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span lang=\"EN-US\"><b>Bhimrao Ramchandra Khalate by lrs vs Nana Dinkar Yadav (Tanpura) and\r\nanother<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span lang=\"EN-US\"><b>Civil Appeal 10197 of 2020 decided on 13 August 2021<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span lang=\"EN-US\"><b>Justice Hemant Gupta and Justice A.S. Bopanna. <o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span lang=\"EN-US\"><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2007/2113/2113_2007_42_1501_29277_Judgement_13-Aug-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2007/2113/2113_2007_42_1501_29277_Judgement_13-Aug-2021.pdf</a></b></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\">Ratio:&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">A distinction exists between a mortgage by way of conditional sale and a sale with condition to repurchase. In the former the debt subsists and a right to redeem remains with the debtor but in case of the latter, the transaction does not evidence an arrangement of lending and borrowing, thus, right to redeem is not reserved.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span lang=\"EN-US\"><b>Case Law referred:&nbsp;&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span lang=\"EN-US\"><b>1. Pandit Chunchun Jha v. Sheikh Ebadat Ali &amp; Anr AIR 1954 SC 345<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span lang=\"EN-US\"><b>2. Shri Bhaskar Waman Joshi v. Shri Narayan Rambilas Agarwal AIR 1960\r\nSC 301<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span lang=\"EN-US\"><b>3. P.L. Bapuswami v. N. Pattay Gounder AIR 1966 SC 902<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span lang=\"EN-US\"><b>4. Umabai&amp; Anr. v. Nilkanth Dhondiba Chavan (Dead) by LRs &amp; Anr\r\n(2005) 6 SCC 243<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span lang=\"EN-US\"><b>5. Tulsi &amp; Ors. v. Chandrika Prasad &amp; Ors (2006) 8 SCC 322<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span lang=\"EN-US\"><b>6. Vithal Tukaram Kadam &amp; Anr. v. Vamanrao Sawalaram Bhosale &amp;\r\nOrs (2018) 11 SCC 172<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span lang=\"EN-US\"><b>7. Ganpati Babji Alamwar (Dead) by LRs Ramlu &amp; Ors. v. Digambarrao\r\nVenkatrao Bhadke &amp; Ors (2019) 8 SCC 651<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span lang=\"EN-US\"><b>8. Vanchalabai Raghunath Ithape (Dead) by LR v. Shankarrao Baburao\r\nBhilare (Dead) by LRs &amp; Ors (2013) 7 SCC 173<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span lang=\"EN-US\"><b>9. Dharmaji Shankar Shinde &amp; Ors. v. Rajaram Shripad Joshi (Dead)\r\nthrough LRs &amp; Ors (2019) 8 SCC 401<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span lang=\"EN-US\"><b>10. Sopan (Dead) through his LR v. Syed Nabi (2019) 7 SCC 635<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><br></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span lang=\"EN-US\"><b>&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span lang=\"EN-US\"><b>&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span lang=\"EN-US\"><b>&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span lang=\"EN-US\"><b>&nbsp;</b></span></p><p>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n</p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span lang=\"EN-US\"><b>&nbsp;</b></span></p>', '1272828679cb455318d9a0b6bb2a1bcb.JPG', '2cfc6f097e6dff4734884995c4e33890.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-13', 1, '', '', '2021-08-15 03:58:59', '2021-08-15 04:00:44'),
(67, 'FCv9rfDxGRi3vjT3tkAzJ6Xds', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. Providing of password passcode or biometrics of computer or smartphone deice as per Court order does NOT amount to self-incrimination or testimonial compulsion. Karnataka High Court. 12 March 2021.  ', '<h4>Criminal Law.  Computer devices and Smart phones. By providing of password, passcode or biometrics, there is no oral statement or a written statement being made by the accused like the Petitioner herein, therefore it can not be said to be testimonial compulsion. Karnataka High Court.  <span style=\"background-color: rgb(255, 255, 0);\">Please click the following link to read the main post. </span><br><a href=\"https://dakshalegal.com/judgements/actionRead/MRdFOROIjVzZXU66DGOO7Q8Z0\" target=\"_blank\">https://dakshalegal.com/judgements/actionRead/MRdFOROIjVzZXU66DGOO7Q8Z0</a><span style=\"font-size: 0.875rem;\"><a href=\"https://dakshalegal.com/judgements/actionRead/MRdFOROIjVzZXU66DGOO7Q8Z0\" target=\"_blank\"> </a></span></h4>', '82746a86fb800bfa1f4efb7355ffbcfa.PNG', 'f395356d2ff24b0244ff64ec001942a7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-12', 1, '', '', '2020-12-02 19:39:16', '2021-03-14 18:23:01'),
(68, 'dniZAdX8g929CgpGxju6h4yhW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court stays imposition of property tax on private educational institutions under the BBMP Act, 2020.  (see details) ', '<p><b>The High Court of Karnataka today, 22 July 2021 stayed imposition of property tax on private educational institutions coming within Bruhat Bangalore Mahanagara Palike area under the BBMP Act, 2020.&nbsp;</b></p><p style=\"text-align: justify; \"><b>The first batch of Writ Petitions in WP. 12954 of 2021 were filed by Management Association of Schools Karnataka and New Horizon Educational and Cultural Trust.&nbsp;</b></p>\r\n\r\n<p class=\"MsoNoSpacing\"><b><span style=\"text-align: justify; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The main ground of attack challenging the constitutional validity of Sections 144 and 154 of the&nbsp;</span><span style=\"text-align: justify; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Bruhat Bangalore Mahanagara Palike Act 2020 is that the very same educational institutions established within Karnataka Municipal Corporations Act, 1976 are still exempted from the property tax. However, the schools established within BBMP area are liable to pay property tax.&nbsp;</span></b></p><p class=\"MsoNoSpacing\"><b><span style=\"text-align: justify; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">After hearing the arguments, Honorbale Justice Sachin Shankar Magadum has stayed the Circular&nbsp;</span></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-size:12.0pt;line-height:115%;font-family:\" verdana\",\"sans-serif\";=\"\" mso-fareast-font-family:\"times=\"\" new=\"\" roman\";mso-fareast-theme-font:minor-fareast;=\"\" mso-bidi-font-family:\"times=\"\" roman\";mso-bidi-theme-font:minor-bidi;=\"\" mso-ansi-language:en-gb;mso-fareast-language:en-gb;mso-bidi-language:ar-sa\"=\"\">dated 29:3:2021 bearing No. Ja.Aa(kam) PR 2607: 2020-2021 issued by BBMP imposing the property tax.&nbsp;</span></b></p><p class=\"MsoNoSpacing\"><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-size:12.0pt;line-height:115%;font-family:\" verdana\",\"sans-serif\";=\"\" mso-fareast-font-family:\"times=\"\" new=\"\" roman\";mso-fareast-theme-font:minor-fareast;=\"\" mso-bidi-font-family:\"times=\"\" roman\";mso-bidi-theme-font:minor-bidi;=\"\" mso-ansi-language:en-gb;mso-fareast-language:en-gb;mso-bidi-language:ar-sa\"=\"\">Notice is ordered to the State of Karnataka and BBMP.&nbsp;</span></b></p><p class=\"MsoNoSpacing\"><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-size:12.0pt;line-height:115%;font-family:\" verdana\",\"sans-serif\";=\"\" mso-fareast-font-family:\"times=\"\" new=\"\" roman\";mso-fareast-theme-font:minor-fareast;=\"\" mso-bidi-font-family:\"times=\"\" roman\";mso-bidi-theme-font:minor-bidi;=\"\" mso-ansi-language:en-gb;mso-fareast-language:en-gb;mso-bidi-language:ar-sa\"=\"\"><br></span></b></p><p class=\"MsoNoSpacing\"><br></p><p class=\"MsoNoSpacing\"><b><span style=\"text-align: justify; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;</span></b><br></p>', '1674e2dc806eb7c6a28f7b053f13b2fc.jpeg', '77aa4b28068965a11728ac1d5d7734b5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-22', 1, '', '', '2020-12-02 19:39:57', '2021-07-23 01:01:29'),
(69, 'WoO0S8X9dnlETat4SpRlr7uCC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Order 6 Rule 17', 'Amendment of plaint to correct valuation of suit property shall be allowed even though such amendment result in transfer of suit due to change in pecuniary jurisdiction. Amendment can be refused only where the nature of the suit is changed by such amendment. (2015) 4 SCC 182 –', 'c18b319acc03766c00a2478d888c2509.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:40:46', '2020-12-22 20:02:26'),
(70, 'ezTQxmu6nloV4Y6gjR57F39hb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Code of Criminal Procedure - Section 482', 'Abetment to commit suicide. CBI officer committing suicide blaming junior officers of harassment. No allegations made. No prima facie case made out. Proceeding quashed by HC upheld. (2015) 9 SCC 639.', 'be27753150c3744c27accc07f599e54f.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:41:32', '2020-12-22 20:01:58'),
(71, 'OyxdcQWdGnxix0dupYosIItaG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prevention of Corruption Act', 'Appellant not present. High Court ought to appoint amicus curie instead of disposing the appeal on merits. Ingredients of corruption: The demand and voluntary acceptance of illegal gratification knowing it to be the bribe  (2015) 4 SCC 222 -', '065b69f19132528db87420e10119dcf0.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:42:08', '2020-12-22 20:01:35'),
(72, 'DjwmyZYP4b7xdx5Gcz7ZkDptv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act. Section 99', 'Formation of Scheme under Section 99 - Cancellation or modification under Section 102 is a quasi-judicial function. All the characteristics including rule against arbitrariness apply to such function. (2015) 4 SCC 515 -', 'c321e3ef7f64e819c10064d67b3f9ae4.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:42:48', '2020-12-22 20:01:18'),
(73, '5Eh2fvgZ6n1BL6z5Hq8gpiyh8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contract Act, 1892. Agency ', 'General Power of Attorney. Sales through General Power of Attorney executed before Suraj Lamp judgment are VALID. Judgement in Suraj Lamps (2009) 7 SCC 363 DO NOT apply to earlier transactions.   (2015) 5 SCC 588 -', '2483763e5ea55781fc53a27edf063515.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:44:05', '2020-12-22 20:00:58'),
(74, 'EWGouyDggY0CyTvpwSagMjyp2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Section 138', 'Cheque bounce case. Company accused. Notice issued only to company & not to individual directors - enough. No need to issue separate notices to directors. Non-issuance of notice to directors will not absolve them of their liability.  (2015) 8 SCC 28.', '933c8f4655b47556e16ef44a698d3350.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:45:08', '2020-12-22 20:00:38'),
(75, 'CYUknwyz8lmTbVqeR2JdvyXdo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Succession Act 1956. Vineet Sharma vs Rakesh Sharma and others. Supreme Court. 11 August 2020.  ', '<h4>Vineet Sharma vs Rakesh Sharma and others. </h4><h4>Civil Appeal Diary No. 32601 of 2018 decided on 11 August 2020.</h4><h4> Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2018/32601/32601_2018_33_1501_23387_Judgement_11-Aug-2020.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/32601/32601_2018_33_1501_23387_Judgement_11-Aug-2020.pdf</a></h4><h4>Justice Arun Mishra)<br>Justice S. Abdul Nazeer)<br>Justice M.R. Shah.&nbsp;</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">HELD: </span>129. Resultantly, we answer the reference as under:<br>(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.<br>(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.<br>(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.<br>(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class­I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.<br>(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court.&nbsp; However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted.&nbsp; A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.<br>130. We understand that on this question, suits/appeals are pending before different High Courts and subordinate courts. The matters have already been delayed due to legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section 6. Hence, we request that the pending matters be decided, as far as possible, within six months. In view of the aforesaid discussion and answer, we overrule the views to the contrary expressed in Prakash v. Phulavati&nbsp; and Mangammal v. T.B. Raju &amp; Ors.&nbsp; The opinion expressed in Danamma @ Suman Surpur &amp; Anr. v. Amar&nbsp; is partly overruled to the extent it is contrary to this decision.&nbsp;<br><br></h4>', '936f7f6bd397178fec0a63e6850e639e.jpg', 'c11b7f72cff90e50b076067dfa5c3eab.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-08-11', 1, '', '', '2020-12-02 19:45:46', '2021-03-14 22:47:43'),
(76, 'sy9wVjpN3SNS5w93xYwcUGgR2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contract Act, 1872. Novation of contracts', 'Has to be on fulfilment of all procedural requirements. (2015) 7 SCC 728', '32708df9fb25b3786585592d4df9ff01.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:46:51', '2020-12-22 20:00:01'),
(77, 'u1amoBckuNxZBLhaEyccaAc20', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Penal Code. Sections 306 & 498-A', 'Cruelty, torture and harassment for dowry proved. However case of death was accidental even as per the dying declaration of the victim. Mother-in-law and sister-in-law acquitted under 306, IPC (abetment to commit suicide). However convicted under Section 498-A, IPC.(Husband or relative of husband of a woman subjecting her to cruelty) (2015) 10 SCC 390  -', '85a9b08d0efc6b6f9bc282fde00a6fb7.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:49:55', '2020-12-22 19:59:44'),
(78, '0cuoSP7bMF69hwPKyK6sbqM4Y', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act- Section 9', 'Interim relief. Where the contract specifies jurisdiction of court at particular place and such court has jurisdiction to deal with the matter, then all other courts are excluded. (2015) 12 SCC 225.', 'aba4d31b19554d7fbb87cc0b02dd7141.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:50:33', '2020-12-22 19:59:27'),
(79, 'IiUs72aAHUl8m0sJnlS4rLxNq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Industrial Areas Development Board Act', '<div>Allottee of the Industrial plot is not a \"person interested\" and has no right of hearing before determination of the compensation. It has NO right to challenge the award -  Peerappa Hanmantha Harijan vs State of Karnataka (2015) 10 SCC 469</div><div>Under the scheme of KIADB Act, the \"beneficiary\" is KIADB itself. After formation of industrial plots the same are allotted to the prospective industrialists who are lessees. These lessees have no right of hearing during the determination of the compensation. The concept of \"public purpose\" under the Land Acquisition Act has no application to the KIAD Act.</div>', 'c8322fc0626f9a4a9eb392ec1f12146f.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:52:40', '2020-12-22 19:59:01'),
(80, 'P2rhVogqxDRGso62tSkuFx3MG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Summary suit', 'Where the defendant has raised a triable issue or a reasonable defence, he is entitled to unconditional leave to defend. Leave is granted to defend even in cases where the defendant upon disclosing a fact, though lacks the defence but makes a positive impression that at the trial the defence would be established. (2015) 10 SCC 521.', '155ce031a49c85b380aa69d095f6c997.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:53:55', '2020-12-22 19:58:40'),
(81, '7PUxiyOJ9cwqafCgtpmPtHdd5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Competition Laws.  Unfair Trade Practice ', 'Unfair Trade Practice Explained. The definition is not inclusive or flexible, but specific and limited in its contents.  ·(2015) 10 SCC 734.', 'bc7fcbbb13b05fd704a1b8f8d36c5b0f.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:55:46', '2020-12-22 19:58:15'),
(82, '4WxkSVdZduBYPLA8F1pLYVOmS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Central Excise. Taxing the dead person', 'Tax laws are made by the living to tax the living. Unlike Income Tax Act, no provision in the Central Excise Act to proceed against a dead person to assess him to tax. Taxing statutes cannot be interpreted on presumptions & assumptions. \"Is\" -use of present tense. (2015) 10 SCC 770.', '5d9c7ff7f7ffc519139580b5852dff6d.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:56:49', '2020-12-22 19:57:54'),
(83, 'YO7fKPFuUhwgWgxuOzDzu0utM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contract Act, 1872. Privity of contract', 'Principal is not liable to pay the sub-contractor (of the main contractor) though on few occasions direct payments were made by the principal to the sub-contractor. (2015) 10 SCC 642.', '3b648434437e16c84d1f7faa55088ecc.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 19:59:00', '2020-12-22 19:57:36'),
(84, 'pBISKkZd3Jt0F4VFuH8P1UGY3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Impleading applicant', '<div>A person who is not party to the suit and whose impleading application is still pending in the trial court, but injunction operating against him, can file an appeal against the injunction order. Appeal cannot be dismissed on the technical ground that he is yet to be imleaded in the suit. </div><div>Ghanshyam Sarda v. Shiv Shankar Trading Co., (2015) 1 SCC 298.</div>', '7ec4fd1218901fdf8899498597325bb3.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 20:02:30', '2020-12-22 19:57:16'),
(85, '7OdWytYGDyayHCIoCGQ1wm3HS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Marriage Act - Section 13-  ', '<p><b>Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, at page 546 :&nbsp;</b></p><p><span style=\"text-align: justify;\">101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:</span><span style=\"text-align: justify; font-size: 0.875rem;\">(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.<br></span><span style=\"font-size: 0.875rem; text-align: justify;\">(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.<br></span><span style=\"font-size: 0.875rem; text-align: justify;\">(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.<br></span><span style=\"font-size: 0.875rem; text-align: justify;\">(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.<br></span><span style=\"font-size: 0.875rem; text-align: justify;\">(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.<br></span><span style=\"font-size: 0.875rem; text-align: justify;\">(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.<br></span><span style=\"font-size: 0.875rem; text-align: justify;\">(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.<br></span><span style=\"font-size: 0.875rem; text-align: justify;\">(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.<br></span><span style=\"font-size: 0.875rem; text-align: justify;\">(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.<br></span><span style=\"font-size: 0.875rem; text-align: justify;\">(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill&nbsp; conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.<br></span><span style=\"font-size: 0.875rem; text-align: justify;\">(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.<br></span><span style=\"font-size: 0.875rem; text-align: justify;\">(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.<br></span><span style=\"font-size: 0.875rem; text-align: justify;\">(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.<br></span><span style=\"font-size: 0.875rem; text-align: justify;\">(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.<br></span><span style=\"font-size: 0.875rem; text-align: justify;\">Ramchander v. Ananta, (2015) 11 SCC 539: (2015) 4 SCC (Civ) 791, at page 542 : The expression “cruelty” has not been defined in the Hindu Marriage Act. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes a reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Cruelty can be physical or mental. In the present case there is no allegation of physical cruelty alleged by the plaintiff. What is alleged is mental cruelty and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. It is settled law that the instances of cruelty are not to be taken in isolation but to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the plaintiff has been subjected to mental cruelty due to conduct of the other spouse.</span></p><p></p><p></p>', '0c51c702d4c007d5f2f3d67cb2a8bd84.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 20:05:42', '2021-01-22 22:13:01');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(86, 'TXIPDaZaOtAkTnAVlze3Om9ZV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Penal Code. Section 124A. Supreme Court Judgments. ', '<div class=\"kvgmc6g5 cxmmr5t8 oygrvhab hcukyx3x c1et5uql ii04i59q\" style=\"overflow-wrap: break-word; margin: 0px; white-space: pre-wrap; font-family: \" segoe=\"\" ui=\"\" historic\",=\"\" \"segoe=\"\" ui\",=\"\" helvetica,=\"\" arial,=\"\" sans-serif;=\"\" color:=\"\" rgb(5,=\"\" 5,=\"\" 5);=\"\" font-size:=\"\" 15px;=\"\" background-color:=\"\" rgb(255,=\"\" 255,=\"\" 255);\"=\"\"><div dir=\"auto\" style=\"font-family: inherit;\"><b>\"Supreme Court of India on Sedition\" - Compilation of case law from the inception. </b></div></div><div class=\"o9v6fnle cxmmr5t8 oygrvhab hcukyx3x c1et5uql ii04i59q\" style=\"overflow-wrap: break-word; margin: 0.5em 0px 0px; white-space: pre-wrap; font-family: \" segoe=\"\" ui=\"\" historic\",=\"\" \"segoe=\"\" ui\",=\"\" helvetica,=\"\" arial,=\"\" sans-serif;=\"\" color:=\"\" rgb(5,=\"\" 5,=\"\" 5);=\"\" font-size:=\"\" 15px;=\"\" background-color:=\"\" rgb(255,=\"\" 255,=\"\" 255);\"=\"\"><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">124A. Sedition —Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in 1India, 1 shall be punished with 1imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine. Explanation 1— The expression \"disaffection\" includes disloyalty and all feelings of enmity. Explanation 2— Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3 — Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.</div></div><div class=\"o9v6fnle cxmmr5t8 oygrvhab hcukyx3x c1et5uql ii04i59q\" style=\"overflow-wrap: break-word; margin: 0.5em 0px 0px; white-space: pre-wrap; font-family: \" segoe=\"\" ui=\"\" historic\",=\"\" \"segoe=\"\" ui\",=\"\" helvetica,=\"\" arial,=\"\" sans-serif;=\"\" color:=\"\" rgb(5,=\"\" 5,=\"\" 5);=\"\" font-size:=\"\" 15px;=\"\" background-color:=\"\" rgb(255,=\"\" 255,=\"\" 255);\"=\"\"><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">Please note both Brij Bhushan v. State of Delhi, 1950 SCR 605 and Romesh Thappar v. State of Madras, 1950 SCR 594 were before the first amendment to Article 19 of the Constitution of India. The words “the sovereignty and integrity of India” were introduced as one of the reasonable restrictions by this amendment. </div></div><div class=\"o9v6fnle cxmmr5t8 oygrvhab hcukyx3x c1et5uql ii04i59q\" style=\"overflow-wrap: break-word; margin: 0.5em 0px 0px; white-space: pre-wrap; font-family: \" segoe=\"\" ui=\"\" historic\",=\"\" \"segoe=\"\" ui\",=\"\" helvetica,=\"\" arial,=\"\" sans-serif;=\"\" color:=\"\" rgb(5,=\"\" 5,=\"\" 5);=\"\" font-size:=\"\" 15px;=\"\" background-color:=\"\" rgb(255,=\"\" 255,=\"\" 255);\"=\"\"><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">The Constitutional validity of Seciton 124-A was upheld in Kedar Nath Singh vs State of Bihar AIR 1962 SC 655 (quoted below) </div></div><div class=\"o9v6fnle cxmmr5t8 oygrvhab hcukyx3x c1et5uql ii04i59q\" style=\"overflow-wrap: break-word; margin: 0.5em 0px 0px; white-space: pre-wrap; font-family: \" segoe=\"\" ui=\"\" historic\",=\"\" \"segoe=\"\" ui\",=\"\" helvetica,=\"\" arial,=\"\" sans-serif;=\"\" color:=\"\" rgb(5,=\"\" 5,=\"\" 5);=\"\" font-size:=\"\" 15px;=\"\" background-color:=\"\" rgb(255,=\"\" 255,=\"\" 255);\"=\"\"><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">1. Brij Bhushan v. State of Delhi, 1950 SCR 605 - It is well recognized in all systems of law that the right to freedom of speech and expression or freedom of the press means that any person may write or say what he pleases so long as he does not infringe the law relating to libel or slander or to blasphemous, obscene or seditious words or writings: (see Halsbury\'s Laws of England, 2nd Edn. Vol. II, p. 391). This is practically what has been said in clause (2) of Article 19, with this difference only that instead of using the words “law relating to sedition”, the framers of the Constitution have used the words mentioned above. It is interesting to note that sedition was mentioned in the original draft of the Constitution, but subsequently that word was dropped and the words which I have quoted were inserted. I think it is not difficult to discover the reason for this change and I shall briefly state in my own words what I consider it to be. 16. The latest pronouncement by the highest Indian Tribunal as to the law of sedition is to be found in Niharendu Dutt Majumdar v. King which has been quoted again and again and in which Gwyer, C.J. laid down that public disorder, or the reasonable anticipation or likelihood of public disorder, is the gist of the offence of sedition and “the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that is their intention or tendency”. For this view, the learned Chief Justice relied on certain observations of Fitzgerald, J. in R. v. Sullivan and he also added that he was content to adopt “the words of that learned Judge which are to be found in every book dealing with this branch of the criminal law.” There is no doubt that what Gwyer, C.J. has stated in that case represents the view of a number of Judges and authors and was also the view of Sir James Stephen in regard to whom Cave, J. in his charge to the jury in a case relating to the law of sedition R. v. Burns6 said:</div><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">“The law upon the question of what is seditious and what is not is to be found stated very clearly in a book by Stephen, J. who has undoubtedly a greater knowledge of criminal law than any other Judge who sits upon the Bench, and what he has said upon the subject of sedition was submitted to the other Judges, who sometime back were engaged with him in drafting a criminal code, and upon their report the Commissioners say that his statement of law appears to them to be stated accurately as it exists at present”.</div><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">17. The decision of Gwyer, C.J. held the field for several years until the Privy Council, dealing with a case under the Defence of India Rules, expressed the view in King-Emperor v. Sadhashiv Narayan Bhalerao7 that the test laid down by the learned Chief Justice was not applicable in India where the offence under Section 124-A of the Indian Penal Code should be construed with reference to the words used in that section. They also added:</div><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">“The word ‘sedition\' does not occur either in Section 124-A or in the Rule; it is only found as a marginal note to Section 124-A, and is not an operative part of the section, but merely provides the name by which the crime defined in the section will be known. There can be no justification for restricting the contents of the section by the marginal note. In England there is no statutory definition of sedition; its meaning and content have been laid down in many decisions, some of which are referred to by the Chief Justice, but these decisions are not relevant when you have a statutory definition of that which is termed sedition as we have in the present case.</div><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">Their Lordships are unable to find anything in the language of either Section 124-A or the Rule which could suggest that ‘the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that this is their intention or tendency.\' ”</div><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">18. The framers of the Constitution must have therefore found themselves face to face with the dilemma as to whether the word “sedition” should be used in Article 19(2) and if it was to be used in what sense it was to be used. On the one hand, they must have had before their mind the very widely accepted view supported by numerous authorities that sedition was essentially an offence against public tranquillity and was connected in some way or other with public disorder; and, on the other hand, there was the pronouncement of the Judicial Committee that sedition as defined in the Indian Penal Code did not necessarily imply any intention or tendency to incite disorder. In these circumstances, it is not surprising that they decided not to use the word “sedition” in clause (2) but used the more general words which cover sedition and everything else which makes sedition such a serious offence. That sedition does undermine the security of the State is a matter which cannot admit of much doubt. That it undermines the security of the State usually through the medium of public disorder is also a matter on which eminent Judges and jurists are agreed. Therefore it is difficult to hold that public disorder or disturbance of public tranquillity are not matters which undermine the security of the State.</div></div><div class=\"o9v6fnle cxmmr5t8 oygrvhab hcukyx3x c1et5uql ii04i59q\" style=\"overflow-wrap: break-word; margin: 0.5em 0px 0px; white-space: pre-wrap; font-family: \" segoe=\"\" ui=\"\" historic\",=\"\" \"segoe=\"\" ui\",=\"\" helvetica,=\"\" arial,=\"\" sans-serif;=\"\" color:=\"\" rgb(5,=\"\" 5,=\"\" 5);=\"\" font-size:=\"\" 15px;=\"\" background-color:=\"\" rgb(255,=\"\" 255,=\"\" 255);\"=\"\"><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">2. Romesh Thappar v. State of Madras, 1950 SCR 594 (Patanjali Sastri-J)- 19. It will not be out of place to quote here the following passage from Stephen\'s Criminal Law of England (Vol. II, pp. 242 and 243):</div><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">“It often happens, however, that the public peace is disturbed by offences which without tending to the subversion of the existing political constitution practically subvert the authority of the Government over a greater or less local area for a longer or shorter time. The Bristol riots in 1832 and the Gordon riots in 1780 are instances of this kind. No definite line can be drawn between insurrections of this sort, ordinary riots, and unlawful assemblies. The difference between a meeting stormy enough to cause well-founded fear of a breach of the peace, and a civil war the result of which may determine the course of a nation\'s history for centuries, is a difference of degree. Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other, and are not capable of being marked off by perfectly definite boundaries. All of them have in common one feature, namely, that the normal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it.</div><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">Another class of offences against public tranquillity are those in which no actual force is either employed or displayed, but in which steps are taken tending to cause it. These are the formation of secret societies, seditious conspiracies, libels or words spoken.</div><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">Under these two heads all offences against the internal public tranquillity of the State may be arranged.”</div><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">20. This passage brings out two matters with remarkable clarity. It shows firstly that sedition is essentially an offence against public tranquillity and secondly that broadly speaking there are two classes of offences against public tranquillity: (a) those accompanied by violence including disorders which affect tranquillity of a considerable number of persons or an extensive local area, and (b) those not accompanied by violence but tending to cause it, such as seditious utterances, seditious conspiracies, etc. Both these classes of offences are such as will undermine the security of the State or tend to overthrow it if left unchecked, and, as I have tried to point out, there is a good deal of authoritative opinion in favour of the view that the gravity ascribed to sedition is due to the fact that it tends to seriously affect the tranquillity and security of the State. In principle, then, it would not have been logical to refer to sedition in clause (2) of Article 19 and omit matters which are no less grave and which have equal potentiality for undermining the security of the State. It appears that the framers of the Constitution preferred to adopt the logical course and have used the more general and basic words which are apt to cover sedition as well as other matters which are as detrimental to the security of the State as sedition.</div><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">9. It is also worthy of note that the word “sedition” which occurred in Article 13(2) of the Draft Constitution prepared by the Drafting Committee was deleted before the article was finally passed as Article 19(2). In this connection it may be recalled that the Federal Court had, in defining sedition in Niharendu Dutt Majumdar v. King-Emperor8 held that “the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency”, but the Privy Council overruled that decision and emphatically reaffirmed the view expressed in Tilak case9 to the effect that “the offence consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small” — King-Emperor v. Sadashiv Narayan Bhalerao10. Deletion of the word “sedition” from the draft Article 13(2), therefore, shows that criticism of Government exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the State. It is also significant that the corresponding Irish formula of “undermining the public order or the authority of the State” [Article 40(6)(i) of the Constitution of Eire, (1937)] did not apparently find favour with the framers of the Indian Constitution. Thus, very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular Government, is possible. A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected, with Madison who was “the leading spirit in the preparation of the First Amendment of the Federal Constitution”, that “it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits”. (Quoted in Near v. Minnesotta11).</div><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">10. We are therefore of opinion that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of Article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. </div><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">(Fazl Ali-J) It appears to me that in the ultimate analysis the real question to be decided in this case is whether “disorders involving menace to the peace and tranquillity of the Province” and affecting “public safety” will be a matter which undermines the security of the State or not. I have borrowed the words quoted within inverted commas from the preamble of the Act which shows its scope and necessity and the question raised before us attacking the validity of the Act must be formulated in the manner I have suggested. If the answer to the question is in the affirmative, as I think it must be, then the impugned law which prohibits entry into the State of Madras of “any document or class of documents” for securing public safety and maintenance of public order should satisfy the requirements laid down in Article 19(2) of the Constitution. From the trend of the arguments addressed to us, it would appear that if a document is seditious, its entry could be validly prohibited, because sedition is a matter which undermines the security of the State; but if, on the other hand, the document is calculated to disturb public tranquillity and affect public safety, its entry cannot be prohibited, because public disorder and disturbance of public tranquillity are not matters which undermine the security of the State. Speaking for myself, I cannot understand this argument. In Brij Bhushan v. State1 I have quoted good authority to show that sedition owes its gravity to its tendency to create disorders and an authority on criminal law like Sir James Stephen has classed sedition as an offence against public tranquillity. If so, how could sedition be a matter which would undermine the security of the State and public disorders and disturbance of public safety will not be such a matter? It was argued that a small riot or an affray will not undermine the security of the State, but to this line of argument there is a twofold answer: .</div><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\"><br></div><div dir=\"auto\" style=\"font-family: inherit;\"><div dir=\"auto\" style=\"text-align: justify; white-space: normal; background-color: rgb(240, 242, 245);\">3. Kedar Nath Singh v. State of Bihar, 1962 Supp (2) SCR 769 15. This offence, which is generally known as the offence of Sedition, occurs in Chapter VI of the Indian Penal Code, headed “Of Offences against the State”. This species of offence against the State was not an invention of the British Government in India, but has been known in England for centuries. Every State, whatever its form of Government, has to be armed with the power to punish those who, by their conduct, jeopardise the safety and stability of the State, or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the State or to public disorder. In England, the crime has thus been described by Stephen in his Commentaries on the Laws of England, 21st Edn., Vol. IV, at pp. 141-42, in these words: “Section IX. Sedition and Inciting to Disaffection.—We are now concerned with conduct which, on the one hand, falls short of treason, and, on the other does not involve the use of force or violence. The law has here to reconcile the right of private criticism with the necessity of securing the safety and stability of the State. Sedition may be defined as conduct which has, either as its object or as its natural consequence, the unlawful display of dissatisfaction with the Government or with the existing order of society.</div><div dir=\"auto\" style=\"text-align: justify; white-space: normal; background-color: rgb(240, 242, 245);\">The seditious conduct may be by words, by deed, or by writing. Five specific heads of sedition may be enumerated according to the object of the accused. This may be either</div><div dir=\"auto\" style=\"text-align: justify; white-space: normal; background-color: rgb(240, 242, 245);\">1. to excite disaffection against the King, Government, or Constitution, or against Parliament or the administration of justice;</div><div dir=\"auto\" style=\"text-align: justify; white-space: normal; background-color: rgb(240, 242, 245);\">2. to promote, by unlawful means, any alteration in Church or State;</div><div dir=\"auto\" style=\"text-align: justify; white-space: normal; background-color: rgb(240, 242, 245);\">3. to incite a disturbance of the peace;</div><div dir=\"auto\" style=\"text-align: justify; white-space: normal; background-color: rgb(240, 242, 245);\">4. to raise discontent among the King\'s subjects;</div><div dir=\"auto\" style=\"text-align: justify; white-space: normal; background-color: rgb(240, 242, 245);\">5. to excite class hatred.</div><div dir=\"auto\" style=\"text-align: justify; white-space: normal; background-color: rgb(240, 242, 245);\">It must be observed that criticism on political matters is not of itself seditious. The test is the manner in which it is made. Candid and honest discussion is permitted. The law only interferes when the discussion passes the bounds of fair criticism. More especially will this be the case when the natural consequence of the prisoner\'s conduct is to promote public disorder.”</div><div dir=\"auto\" style=\"text-align: justify; white-space: normal; background-color: rgb(240, 242, 245);\">16. This statement of the law is derived mainly from the address to the Jury by Fitzerald, J., in the case of Reg v. Alexander Martin Sullivan8. In the course of his address to the Jury, the learned Judge observed as follows:</div><div dir=\"auto\" style=\"text-align: justify; white-space: normal; background-color: rgb(240, 242, 245);\">“Sedition is a crime against society, nearly allied to that of treason and it frequently precedes treason by a short interval. Sedition in itself is a comprehensive term, and it embraces all those practices, whether by word, deed or writing, which are calculated to disturb the tranquillity of the State, and lead ignorant persons to endeavour to subvert the Government and the laws of the empire. The objects of sedition generally are to induce discontent and insurrection, and stir up opposition to the Government, and bring the administration of justice into contempt; and the very tendency of sedition is to incite the people to insurrection and rebellion. Sedition has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitution of the realm, and generally all endeavours to promote public disorder.”</div><div dir=\"auto\" style=\"text-align: justify; white-space: normal; background-color: rgb(240, 242, 245);\"><br></div><div dir=\"auto\" style=\"white-space: normal; background-color: rgb(240, 242, 245);\"><div dir=\"auto\" style=\"text-align: justify;\">17. That the law has not changed during the course of the centuries is also apparent from the following statement of the law by Coleridge, J., in the course of his summing up to the Jury in the case of Rex v. Aldred9:</div><div dir=\"auto\" style=\"text-align: justify;\">“Nothing is clearer than the law on this head — namely, that whoever by language, either written or spoken, incites or encourages others to use physical force or violence in some public matter connected with the State, is guilty of publishing a seditious libel. The word ‘sedition\' in its ordinary natural signification denotes a tumult, an insurrection, a popular commotion, or an uproar; it implies violence or lawlessness in some form…</div><div dir=\"auto\" style=\"text-align: justify;\">18. While dealing with a case arising under Rule 34(6)(e) of the Defence of India Rules under the Defence of India Act (35 of 1939), Sir Maurice Gwyer, C.J., speaking for the Federal Court, made the following observations in the case of Niharendu Dutt Majumdar v. King-Emperor2 and has pointed out that the language of Section 124-A of the Indian Penal Code, which was in pari materia with that of the Rule in question, had been adopted from the English Law, and referred with approval to the observations of Fitzerald, J., in the case quoted above; and made the following observations which are quite apposite;</div><div dir=\"auto\" style=\"text-align: justify;\">“ … generally speaking, we think that the passage accurately states the law as it is to be gathered from an examination of a great number of judicial pronouncements.</div><div dir=\"auto\" style=\"text-align: justify;\">The first and most fundamental duty of every Government is the preservation of order, since order is the condition precedent to all civilisation and the advance of human happiness. This duty has no doubt been sometimes performed in such a way as to make the remedy worse than the disease; but it does not cease to be a matter of obligation because some on whom the duty rests have performed it ill. It is to this aspect of the functions of Government that in our opinion the offence of sedition stands related. It is the answer of the State to those who, for the purpose of attacking or subverting it, seek (to borrow from the passage cited above) to disturb its tranquillity, to create public disturbance and to promote disorder, or who incite others to do so. Words, deeds or writings constitute sedition, if they have this intention or this tendency; and it is easy to see why they may also constitute sedition, if they seek, as the phrase is, to bring Government into contempt. This is not made an offence in order to minister to the wounded vanity of Government, but because where Government and the law cease to be obeyed because no respect is felt any longer for them, only anarchy can follow. Public disorder, or the reasonable anticipation or likelihood of public disorder, is thus the gist of the offence. The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency.”</div><div dir=\"auto\" style=\"text-align: justify;\">This statement of the law was not approved by Their Lordships of the Judicial Committee of the Privy Council in the case of King-Emperor v. Sadashiv Narayan Bhalero10. The Privy Council, after quoting the observations of the learned Chief Justice in Niharendu case2 while disapproving of the decision of the Federal Court, observed that there was no statutory definition of “sedition” in England, and the meaning and content of the crime had to be gathered from many decisions. But those were not relevant considerations when one had to construe the statutory definition of “sedition” as in the Code. The Privy Council held that the language of Section 124-A, or of the Rule aforesaid, under the Government of India Act, did not justify the statement of the law as made by the learned Chief Justice in Niharendu case. They also held that the expression “excite disaffection” did not include “excite disorder”, and that, therefore, the decision of the Federal Court in Niharendu case2 proceeded on a wrong construction of Section 124-A of the Penal Code, and of sub-para (e), sub-rule (6) of Rule 34 of the Defence of India Rules. Their Lordships approved of the dicta in the case of Bal Gangadhar Tilak and in the case of Annie Beasant v. Advocate-General of Madras11 which was a case under Section 4 of the Indian Press Act (1 of 1910), which was closely similar in language to Section 124-A of the Penal Code.</div><div dir=\"auto\" style=\"text-align: justify;\">19. The Privy Council also referred to their previous decision in Wallace-John-son v. King12 which was a case under sub-section 8 of Section 326 of the Criminal Code of the Gold Coast, which defined “seditious intention” in terms similar to the words of Section 124-A of the Penal Code. In that case, Their Lordships had laid down that incitement to violence was not a necessary ingredient of the crime of sedition as defined in that law.</div><div dir=\"auto\" style=\"text-align: justify;\"><br></div><div dir=\"auto\"><div class=\"kvgmc6g5 cxmmr5t8 oygrvhab hcukyx3x c1et5uql\" style=\"overflow-wrap: break-word; margin: 0px;\"><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">20. Thus, there is a direct conflict between the decision of the Federal Court in Niharendu case and of the Privy Council in a number of cases from India and the Gold Coast, referred to above. It is also clear that either view can be taken and can be supported on good reasons. The Federal Court decision takes into consideration, as indicated above, the pre-existing Common Law of England in respect of sedition. It does not appear from the report of the Federal Court decision that the rulings aforesaid of the Privy Council had been brought to the notice of Their Lordships of the Federal Court.</div></div><div class=\"o9v6fnle cxmmr5t8 oygrvhab hcukyx3x c1et5uql\" style=\"overflow-wrap: break-word; margin: 0.5em 0px 0px;\"><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">21. So far as this Court is concerned, the question directly arising for determination in this batch of cases has not formed the subject-matter of decision previously. But certain observations made by this Court in some cases, to be presently noticed, with reference to the interrelation between freedom of speech and seditious writing or speaking have been made in the very first year of the coming into force of the Constitution. Two cases involving consideration of the fundamental right of freedom of speech and expression and certain laws enacted by some of the States imposing restrictions on that right came up for consideration before this Court. Those cases, reported in Romesh Thappar v. State of Madras13 and Brij Bhushan v. State of Delhi14 were heard by Kania, C.J., Fazl Ali, Patanjali Shastri, Mehr Chand Mahajan, Mukherjea and Das, JJ. and judgments were delivered on the same day (26-5-1950). In Romesh Thappar case13 the majority of the Court declared Section 9(1-A) of the Madras Maintenance of Public Order Act (Madras Act 33 of 1949), which had authorised imposition of restrictions on the fundamental right of freedom of speech, to be in excess of clause (2) of Article 19 of the Constitution authorising such restrictions, and, therefore, void and unconstitutional. In Brij Bhushan case14 the same majority struck down Section 7(1)(c) of the East Punjab Public Safety Act 1949, as extended to the Province of Delhi, authorising the imposition of restrictions on the freedom of speech and expression for preventing or combating any activity prejudicial to the public safety or the maintenance of public order. The Court held those provisions to be in excess of the powers conferred on the legislature by clause (2) of Article 19 of the Constitution. Mr Justice Patanjali Sastri, speaking for the majority of the Court in Romesh Thappar case made the following observations with reference to the decisions of the Federal Court and the Judicial Committee of the Privy Council as to what the law of Sedition in India was:</div><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">“It is also worthy of note that the word ‘sedition\' which occurred in Article 13(2) of the Draft Constitution prepared by the Drafting Committee was deleted before the article was finally passed as Article 19(2). In this connection it may be recalled that the Federal Court had, in defining sedition in Niharendu Dutt Majumdar v. King-Emperor2 held that ‘the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency\', but the Privy Council overruled that decision and emphatically reaffirmed the view expressed in Tilak case to the effect that ‘the offence consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small\' — King-Emperor v. Sadashiv Narayan Bhalerao. Deletion of the word ‘sedition\' from the draft Article 13(2), therefore, shows that criticism of Government exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the State. It is also significant that the corresponding Irish formula of ‘undermining the public order or the authority of the State\' [Article 40(6)(i) of the Constitution of Eire, 1937] did not apparently find favour with the framers of the Indian Constitution. Thus, very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular Government, is possible. A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected, with Madison who was ‘the leading spirit in the preparation of the First Amendment of the Federal Constitution\' that ‘it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits: “ (quoted in Near v. Minnesotta).</div><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">These observations were made to bring out the difference between the “security of the State” and “public order”. As the latter expression did not find a place in Article 19(2) of the Constitution, as it stood originally, the section was struck down as unconstitutional. Fazl Ali, J., dissented from the views thus expressed by the majority and reiterated his observations in Brij Bhushan case14. In the course of his dissenting judgment, he observed as follows:</div><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">“It appears to me that in the ultimate analysis the real question to be decided in this case is whether ‘disorders involving menace to the peace and tranquillity of the Province\' and affecting ‘public safety\'will be a matter which undermines the security of the State or not. I have borrowed the words quoted within inverted commas from the preamble of the Act which allows its scope and necessity and the question raised before us attacking the validity of the Act must be formulated in the manner I have suggested. If the answer to the question is in the affirmative, as I think it must be, then the impugned law which prohibits entry into the State of Madras of ‘any document or class of documents\' for securing public safety and maintenance of public order should satisfy the requirements laid down in Article 19(2) of the Constitution. From the trend of the arguments addressed to us, it would appear that if a document is seditious, its entry could be validly prohibited, because sedition is a matter which undermines the security of the State; but if, on the other hand, the document is calculated to disturb public tranquillity and affect public safety, its entry connot be prohibited, because public disorder and disturbance of public tranquillity are not matters which undermine the security of the State. Speaking for myself, I cannot understand this argument. In Brij Bhushan v. State14 I have quoted good authority to show that sedition owes its gravity to its tendency to create disorders and an authority on Criminal Law like Sir James Stephen has classed sedition as an offence against public tranquillity.”</div><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\"><br></div><div dir=\"auto\" style=\"font-family: inherit;\"><div class=\"kvgmc6g5 cxmmr5t8 oygrvhab hcukyx3x c1et5uql\" style=\"overflow-wrap: break-word; margin: 0px;\"><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">In Brij Bhushan case14 Fazl Ali, J., who was again the dissenting judge, gave his reasons in greater detail. He referred to the judgment of the Federal Court in Niharendu Datt Majumdar case2 and to the judgment of the Privy Council to the contrary in King-Emperor v. Sada Shiv Narayan10. After having pointed out the divergence of opinion between the Federal Court of India and the Judicial Committee of the Privy Council, the learned Judge made the following observations in order to explain why the term “sedition” was not specifically mentioned in Article 19(2) of the Constitution:</div><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">“The framers of the Constitution must have therefore found themselves face to face with the dilemma as to whether the word ‘sedition\' should be used in Article 19(2) and if it was to be used in what sense it was to be used. On the one hand, they must have had before their mind the very widely accepted view supported by numerous authorities that sedition was essentially an offence against public tranquillity and was connected in some way or other with public disorder; and, on the other hand, there was the pronouncement of the Judicial Committee that sedition as defined in the Indian Penal Code did not necessarily imply any intention or tendency to incite disorder. In these circumstances, it is not surprising that they decided not to use the word ‘sedition\' in clause (2) but used the more general words which cover sedition and everything else which makes sedition such a serious offence. That sedition does undermine the security of the State is a matter which cannot admit of much doubt. That it undermines the security of the State usually through the medium of public disorder is also a matter on which eminent Judges and jurists are agreed. Therefore, it is difficult to hold that public disorder or disturbance of public tranquillity are not matters which undermine the security of the State.”</div></div><div class=\"o9v6fnle cxmmr5t8 oygrvhab hcukyx3x c1et5uql\" style=\"overflow-wrap: break-word; margin: 0.5em 0px 0px;\"><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\">It has not been questioned before us that the fundamental right guaranteed by Article 19(1)(a) of the freedom of speech and expression is not an absolute right. It is common ground that the right is subject to such reasonable restrictions as would come within the purview of clause (2), which comprises (a) security of the State, (b) friendly relations with foreign States, (c) public order, (d) decency or morality, etc. etc. With reference to the constitutionality of Section 124-A or Section 505 of the Indian Penal Code, as to how far they are consistent with the requirements of clause (2) of Article 19 with particular reference to security of the State and public order, the section, it must be noted, penalises any spoken or written words or signs or visible representations, etc. which have the effect of bringing, or which attempt to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law. Now, the expression “the Government established by law” has to be distinguished from the persons for the time being engaged in carrying on the administration. “Government established by law” is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted. Hence, the continued existence of the Government established by law is an essential condition of the stability of the State. That is why “sedition”, as the offence in Section 124-A has been characterised, comes, under Chapter VI relating to offences against the State. Hence, any acts within the meaning of Section 124-A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence. In other words, any written or spoken words, etc. which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term “revolution”, have been made penal by the section in question. But the section has taken care to indicate clearly that strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.</div><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\"><br></div><div dir=\"auto\" style=\"font-family: inherit;\"><div dir=\"auto\" style=\"text-align: justify;\">25. It has not been contended before us that if a speech or a writing excites people to violence or have the tendency to create public disorder, it would not come within the definition of “sedition”. What has been contended is that a person who makes a very strong speech or uses very vigorous words in a writing directed to a very strong criticism of measures of Government or acts of public officials, might also come within the ambit of the penal section. But in our opinion, such words written or spoken would be outside the scope of the section. In this connection, it is pertinent to observe that the security of the State, which depends upon the maintenance of law and order is the very basic consideration upon which legislation, with a view to punishing offences against the State, is undertaken. Such a legislation has, on the one hand, fully to protect and guarantee the freedom of speech and expression, which is the sine qua non of a democratic form of Government that our Constitution has established. This Court, as the custodian and guarantor of the fundamental rights of the citizens, has the duty cast upon it of striking down any law which unduly restricts the freedom of speech and expression with which we are concerned in this case. But the freedom has to be guarded against becoming a licence for vilification and condemnation of the Government established by law, in words which incite violence or have the tendency to create public disorder. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. The Court has, therefore, the duty cast upon it of drawing a clear line of demarcation between the ambit of a citizen\'s fundamental right guaranteed under Article 19(1)(a) of the Constitution and the power of the legislature to impose reasonable restrictions on that guaranteed right in the interest of, inter alia, security of the State and public order. We have, therefore, to determine how far the Sections 124-A and 505 of the Indian Penal Code could be said to be within the justifiable limits of legislation. If it is held, in consonance with the views expressed by the Federal Court in the case of Niharendu Dutt Majumdar v. King-Emperor2 that the gist of the offence of “sedition” is incitement to violence or the tendency or the intention to create public disorder by words spoken or written, which have the tendency or the effect of bringing the Government established by law into hatred or contempt or creating disaffection in the sense of disloyalty to the State, in other words bringing the law into line with the law of sedition in England, as was the intention of the legislators when they introduced Section 124-A into the Indian Penal Code in 1870 as aforesaid, the law will be within the permissible limits laid down in clause (2) of Article 19 of the Constitution. If on the other hand we give a literal meaning to the words of the section, divorced from all the antecedent background in which the law of sedition has grown, as laid down in the several decisions of the Judicial Committee of the Privy Council, it will be true to say that the section is not only within but also very much beyond the limits laid down in clause (2) aforesaid.</div><div dir=\"auto\" style=\"text-align: justify;\">There can be no doubt that apart from the provisions of clause (2) of Article 19, Sections 124-A and 505 are clearly violative of Article 19(1)(a) of the Constitution. But then we have to see how far the saving clause, namely, clause (2) of Article 19 protects the sections aforesaid. Now, as already pointed out, in terms of the amended clause (2), quoted above, the expression “in the interest of … public order” are words of great amplitude and are much more comprehensive then the expression “for the maintenance of”, as observed by this Court in the case of Virendra v. State of Punjab16. Any law which is enacted in the interest of public order may be saved from the vice of constitutional invalidity. If, on the other hand, we were to hold that even without any tendency to disorder or intention to create disturbance of law and order, by the use of words written or spoken which merely create disaffection or feelings of enmity against the Government, the offence of sedition is complete, then such an interpretation of the sections would make them unconstitutional in view of Article 19(1)(a) read with clause (2). It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order. It is also well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress [vide (1) Bengal Immunity Company Limited v. State of Bihar17 and (2) R.M.D. Chamarbaugwala v. Union of India18]. Viewed in that light, we have no hesitation in so construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.</div><div dir=\"auto\" style=\"text-align: justify;\"><br></div><div dir=\"auto\" style=\"text-align: justify;\"><b>4. Balwant Singh v. State of Punjab, (1995) 3 SCC 214</b>, at page 218 - A plain reading of the above section would show that its application would be attracted only when the accused brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law in India, by words either written or spoken or visible signs or representations etc. Keeping in view the prosecution evidence that the slogans as noticed above were raised a couple of times only by the appellant and that neither the slogans evoked a response from any other person of the Sikh community or reaction from people of other communities, we find it difficult to hold that upon the raising of such casual slogans a couple of times without any other act whatsoever, the charge of sedition can be founded. It is not the prosecution case that the appellants were either leading a procession or were otherwise raising the slogans with the intention to incite people to create disorder or that the slogans in fact created any law and order problem. It does not appear to us that the police should have attached much significance to the casual slogans raised by two appellants, a couple of times and read too much into them. The prosecution has admitted that no disturbance, whatsoever, was caused by the raising of the slogans by the appellants and that in spite of the fact that the appellants raised the slogans a couple of times, the people, in general, were unaffected and carried on with their normal activities. The casual raising of the slogans, once or twice by two individuals alone cannot be said to be aimed at exciting or attempting to excite hatred or disaffection towards the Government as established by law in India. Section 124-A IPC, would in the facts and circumstances of the case have no application whatsoever and would not be attracted to the facts and circumstances of the case.<br></div><div dir=\"auto\" style=\"text-align: justify;\"><br></div><div dir=\"auto\"><div class=\"kvgmc6g5 cxmmr5t8 oygrvhab hcukyx3x c1et5uql\" style=\"overflow-wrap: break-word; margin: 0px;\"><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\"><b>5. Ahmed Kaloo v. State of A.P., (1997) 7 SCC 431</b>, at page 437 - A mechanical order convicting a citizen for offences of such serious nature like sedition and promoting enmity and hatred etc. does harm to the cause. It is expected that the graver the offence, greater should be the care taken so that the liberty of a citizen is not lightly interfered with.</div></div><div class=\"o9v6fnle cxmmr5t8 oygrvhab hcukyx3x c1et5uql\" style=\"overflow-wrap: break-word; margin: 0.5em 0px 0px;\"><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\"><b>6. Bilal Ahmed Kaloo v. State of A.P., (1997) 7 SCC 431, </b>at page 434 –Paragraph 6. The decisive ingredient for establishing the offence of sedition under Section 124-A IPC is the doing of certain acts which would bring to the Government established by law in India hatred or contempt etc. In this case, there is not even a suggestion that the appellant did anything against the Government of India or any other Government of the State. The charge framed against the appellant contains no averment that the appellant did anything against the Government.</div></div><div class=\"o9v6fnle cxmmr5t8 oygrvhab hcukyx3x c1et5uql\" style=\"overflow-wrap: break-word; margin: 0.5em 0px 0px;\"><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\"><b>7. Nazir Khan v. State of Delhi, (2003) 8 SCC 461, at page 487</b> - Sedition is a crime against society nearly allied to that of treason, and it frequently precedes treason by a short interval. Sedition in itself is a comprehensive term, and it embraces all those practices, whether by word, deed, or writing, which are calculated to disturb the tranquillity of the State, and lead ignorant persons to endeavour to subvert the Government and laws of the country. The objects of sedition generally are to induce discontent and insurrection, and stir up opposition to the Government, and bring the administration of justice into contempt; and the very tendency of sedition is to incite the people to insurrection and rebellion. “Sedition” has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitutions of the realm, and generally all endeavours to promote public disorder.</div></div><div class=\"o9v6fnle cxmmr5t8 oygrvhab hcukyx3x c1et5uql\" style=\"overflow-wrap: break-word; margin: 0.5em 0px 0px;\"><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\"><b>8. R. Balakrishna Pillai v. State of Kerala, (2003) 9 SCC 700</b>, at page 729 –Paragraph 45. Glanville Williams in Criminal Law has also stated as follows in connection with the intention accompanying the act: “The chief problems in the general part of criminal law pertain to the requirement of a criminal state of mind, mens rea; but these cannot be adequately discussed without a preliminary exploration of the nature of an actus reus.” It is further stated: “Although thoughts are free, the uttering of them is another matter. Speaking or writing is an act, and is capable of being treason, sedition, conspiracy or incitement; indeed, almost any crime can be committed by mere words, for it may be committed by the accused ordering an innocent agent (e.g. a child under eight) to do the act. But to constitute a criminal act there must be (as said already) something more than a mere mental resolution. Apparent, but not real, exceptions to this proposition are treason and conspiracy. It is treason to compass the King’s death, but the law requires an overt act manifesting the intention; and this act must be something more than a confession of the intention. It must be an act intended to further the intention; perhaps, too, it must actually do so….”</div><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\"><br></div><div dir=\"auto\" style=\"text-align: justify; font-family: inherit;\"><b>9. Shreya Singhal v. Union of India, (2015) 5 SCC 1, at page 45 </b>- Section 124-A which is the offence relating to sedition, it seeks to penalise any action that “attempts to bring into hatred or contempt or excites or attempts to excite disaffection”, and it limits the scope of the said expressions such as “hatred” by placing an additional qualification that only when the same is directed “towards the Government established by law” that it is considered an offence.<br></div></div></div></div></div></div></div></div></div><div dir=\"auto\" style=\"white-space: normal; background-color: rgb(240, 242, 245);\"><br></div></div><div dir=\"auto\" style=\"font-family: inherit;\"><br></div><div dir=\"auto\" style=\"font-family: inherit;\"><br></div><div dir=\"auto\" style=\"font-family: inherit;\"><br></div></div>', '2259dfc0388ad445714ad4418e1ba289.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 20:50:52', '2021-01-22 22:05:02');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(87, 'WNjrcTAl6GwLNiQwDtlFQ4w3S', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transfer of Property Act, 1882. Section 53. Fraudulent transfers', '<div><b>Rights of a transferee in good faith and for consideration. Such rights militate even against subsequent Court attachment of the very same property. - Karnataka High Court.</b></div><div>S.K.Gangadhara vs Ramachandra&nbsp;</div><div>Regular Second Appeal 265/2011</div><div>Decided on 13 April 2015</div><div><b>Judgment Link</b>: <a href=\"http://judgmenthck.kar.nic.in/.../1/RSA265-11-13-04-2015.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/.../1/RSA265-11-13-04-2015.pdf</a></div>', '7c4b725cf7e78c3f61ceb0a05bd52900.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 20:53:25', '2021-02-03 14:17:03'),
(88, '3gnfNy8EPAK9fnQOUIu98R1H0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bank Guarantee', '<div>Latest judgment of the Supreme Court of India - Reiterating the legal position that there can be NO injunction against revocation of unconditional bank guarantee. However, liberty given to the plaintiff to initiate appropriate proceedings in the circumstances of the case. </div><div><br></div><div>Judgment:  http://supremecourtofindia.nic.in/FileServer/2015-12-10_1449748133.pdf</div>', '2bb2c8f04ecec15f18af1409570c2001.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 20:53:56', '2020-12-22 19:56:06'),
(89, 'jeR7jJpFFGRpW9aC8JjilwTLI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Impounding of Documents. Arbitration Tribunal ', '<div><b>Tribunal has the power to impound any instrument or document, if it is not duly stamped (under Section 33 of the Karnataka Stamp Act, 1957) - holds Karnataka High Court. 1 March 2016&nbsp;</b></div><div><br><b>Judgment:</b> http://karnatakajudiciary.kar.nic.in/.../wa-100191-2015.pdf</div><div><br>Every person having authority to receive evidence has the power under Section 33 of the Act to impound any instrument or document, if it is not duly stamped. It is not necessary in law that the said person should also be in-charge of a public office. ‘Person’ referred to in Section 33(1) of the Act includes an Arbitral Tribunal.</div>', '5b9448a2a0501b950f145a2782275d3e.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 20:54:42', '2021-01-22 21:59:54'),
(90, 'Big5mWCw3Jz563H6UfuNVk1UL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Amendment of pleadings. Doctrine of relation back from the date of suit will not apply when the court allows the amendment subject to the plea of limitation thus saving the legal right that had accrued in favour of the defendant. Sup', '<h4><b>L.C. Hanumanthappa v. H.B. Shivakumar. Civil Appeal No. 6595 of 2015 decided on August 26, 2015</b><br>Justice Dr. A.K. Sikri and Justice Rohington Fali Nariman<br>Judgment LInk: <a href=\"https://main.sci.gov.in/jonew/judis/42888.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/42888.pdf</a><br><b>Reported in (2016) 1 SCC 33</b>2<br><b>Relevant paragraphs: 15</b>. As early as in the year 1909, the Bombay High Court in Kisandas Rupchand v. Rachappa Vithoba Shilwant8, held as follows: (ILR p. 655)<br><i>“… All amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties … but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?”<br></i>16. This statement of the law was expressly approved by a three-Judge Bench of this Court in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil9 SCR pp. 603-04.<br>17. Twenty years later, the Privy Council in Charan Das v. Amir Khan10, stated the law as follows: (IA p. 262)<br><i>“… That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases … where such considerations are outweighed by the special circumstances of the case….”</i><br>18. This statement of the law was cited with approval in L.J. Leach & Co. Ltd. v. Jardine Skinner & Co.11 SCR pp. 450-51.<br>21. Similar is the case with Pirgonda Hongonda Patil9. Here again it was held that the amendment did not really introduce a new fact at all, nor did the defendant have to meet a new claim set up for the first time after the expiry of the period of limitation.<br>22. In K. Raheja Constructions Ltd. v. Alliance Ministries12, this Court was seized with a belated application to amend a plaint filed for permanent injunction. Seven years after it was filed, an amendment application was moved seeking to amend the plaint to one for specific performance of contract. In turning down such amendment on the ground that it was time-barred, this Court held: (SCC pp. 18-19, para 4)<br>“4. It is seen that the permission for alienation is not a condition precedent to file the suit for specific performance. The decree of specific performance will always be subject to the condition to the grant of the permission by the competent authority. The petitioners having expressly admitted that the respondents have refused to abide by the terms of the contract, they should have asked for the relief for specific performance in the original suit itself. Having allowed the period of seven years to elapse from the date of filing of the suit, and the period of limitation being three years under Article 54 of the Schedule to the Limitation Act, 1963, any amendment on the grounds set out, would defeat the valuable right of limitation accruing to the respondent.”<br>24. In Siddalingamma v. Mamtha Shenoy14, this Court held while allowing an amendment of the plaint in a case of bona fide requirement of the landlord that the doctrine of relation back would apply to all amendments made under Order 6 Rule 17 of the Code of Civil Procedure, which generally governs amendment of pleadings, unless the court gives reasons to exclude the applicability of such doctrine in a given case. No question of limitation was argued on the facts in that case which would therefore be in the category of cases which would follow the line of judgments which state that costs can usually compensate for an amendment that is made belatedly but within the period of limitation, it not being an exceptional case such as those contained in the two judgments L.J. Leach & Co. Ltd.11 and Pirgonda Hongonda Patil9 cited above.<br>25. In Sampath Kumar v. Ayyakannu15, this Court was faced with an application for amendment made 11 years after the date of the institution of the suit to convert through amendment a suit for permanent prohibitory injunction into a suit for declaration of title and recovery of possession. This Court held: (SCC pp. 562-64, paras 7 & 9-11)<br>“7. In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial court, it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff’s revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new  suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings.<br>28. In Prithi Pal Singh v. Amrik Singh17, this Court was concerned with a suit claiming pre-emption under the Punjab Pre-emption Act, 1913. An amendment was sought to the plaint claiming that the plaintiff was entitled to relief as a co-sharer of the suit property. This Court after considering some of its earlier judgments held: (SCC p. 583, para 11)<br>“11. In our opinion, there is no merit in the submissions of the learned counsel. A reading of the order18 passed by this Court shows that the application for amendment filed by Respondent 2 was allowed without any rider/condition. Therefore, it is reasonable to presume that this Court was of the view that the amendment in the plaint would relate back to the date of filing the suit. That apart, the learned Single Judge19 has independently considered the issue of limitation and rightly concluded that the amended suit was not barred by time.”<br>29. Applying the law thus laid down by this Court to the facts of this case, two things become clear. First, in the original written statement itself dated 16-5-1990, the defendant had clearly put the plaintiff on notice that it had denied the plaintiff’s title to the suit property. A reading of an isolated paragraph in the written statement, namely, Para 2 by the trial court on the facts of this case has been correctly commented upon adversely by the High Court in the judgment under appeal. The original written statement read as a whole unmistakably indicates that the defendant had not accepted the plaintiff’s title. Secondly, while allowing the amendment, the High Court in its earlier judgment dated 28-3-2002 had expressly remanded the matter to the trial court, allowing the defendant to raise the plea of limitation. There can be no doubt that on an application of Khatri Hotels (P) Ltd.3, the right to sue for declaration of title first arose on the facts of the present case on 16-5-1990 when the original written statement clearly denied the plaintiff’s title. By 16-5-1993 therefore a suit based on declaration of title would have become time-barred. It is clear that the doctrine of relation back would not apply to the facts of this case for the reason that the court which allowed the amendment expressly allowed it subject to the plea of limitation, indicating thereby that there are no special or extraordinary circumstances in the present case to warrant the doctrine of relation back applying so that a legal right that had accrued in favour of the defendant should be taken away. This being so, we find no infirmity in the impugned judgment of the High Court. The present appeal is accordingly dismissed.</h4><h4><b>Judgments referred to in this case. <br></b></h4><h4>1<span style=\"white-space:pre\">	</span>L.C. Hanumanthappa v. H.B. Shivakumar, RFA No. 415 of 1999, decided on 28-3-2002 (KAR)<br>2<span style=\"white-space:pre\">	</span>H.B. Shivakumar v. L.C. Hanumanthappa, 2015 SCC OnLine Kar 3860<br>3<span style=\"white-space:pre\">	</span>(2011) 9 SCC 126 : (2011) 4 SCC (Civ) 484<br>4<span style=\"white-space:pre\">	</span>(1929-30) 57 IA 325 : AIR 1930 PC 270 : (1930) 32 LW 338<br>5<span style=\"white-space:pre\">	</span>ILR (1930) 8 Rang 645 : (1930-31) 58 IA 1 : (1931) 33 LW 30<br>6<span style=\"white-space:pre\">	</span>(1930-31) 58 IA 125 : (1931) 33 LW 707<br>7<span style=\"white-space:pre\">	</span>AIR 1960 SC 335 : (1960) 2 SCR 253<br>8<span style=\"white-space:pre\">	</span>ILR (1909) 33 Bom 644<br>9<span style=\"white-space:pre\">	</span>1957 SCR 595 : AIR 1957 SC 363<br>10<span style=\"white-space:pre\">	</span>(1919-20) 47 IA 255 : (1921) 13 LW 49<br>11<span style=\"white-space:pre\">	</span>1957 SCR 438 : AIR 1957 SC 357<br>12<span style=\"white-space:pre\">	</span>1995 Supp (3) SCC 17<br>13<span style=\"white-space:pre\">	</span>(2001) 6 SCC 163<br>14<span style=\"white-space:pre\">	</span>(2001) 8 SCC 561<br>15<span style=\"white-space:pre\">	</span>(2002) 7 SCC 559<br>16<span style=\"white-space:pre\">	</span>(2010) 14 SCC 596 : (2012) 1 SCC (Civ) 777<br>17<span style=\"white-space:pre\">	</span>(2013) 9 SCC 576 : (2013) 4 SCC (Civ) 473<br>18<span style=\"white-space:pre\">	</span>Bakshish Singh v. Prithi Pal Singh, 1995 Supp (3) SCC 577<br>19<span style=\"white-space:pre\">	</span>Prithi Pal Singh v. Amrik Singh, 2008 SCC OnLine P&H 267 : (2008) 3 RCR (Civ) 504<br></h4><div><br></div>', '8917d82c624ff92d8e8cf3a4a608fde7.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2015-08-26', 1, '', '', '2020-12-02 20:59:28', '2021-02-03 14:41:31'),
(91, '8RD6VNHftNmOvElZ6q0bTi37d', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Extradition of a fugitive criminal', '<div><b>Comprehensive judgement of Supreme Court on extradition of a fugitive criminal&nbsp;</b><b style=\"font-size: 0.875rem;\">Verhoeven, Marie-Emmanuelle vs Union of India &amp; Ors&nbsp;</b></div><div>Law- Extradition Act, 1962</div><div>Writ Petition (Criminal) 178 of 2015</div><div>Decided on April 28, 2016</div><div>Madan B. Lokur-J</div><div>N.V. Ramana-J</div><div><b><br></b></div><div><b>Judgment</b>: http://supremecourtofindia.nic.in/FileServer/2016-04-28_1461827428.pdf</div>', '0d44ab9422f7fe3de2297589271c0cc7.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 21:01:15', '2021-01-22 21:58:34'),
(92, 'EDN5OC02IFTcYo0zkGQCoWo59', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transfer of Property Act. Agreement of Sale', '<b>Intending purchaser though in possession not taking any action for specific performance of the agreement. He cannot resist the suit for possession by the Vendor. Karnataka High Court. Regular First Appeal 154/1985 decided on 20 April 1994</b>', '9237a494d0d53f9072537d17e1a82b88.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 21:03:58', '2021-01-22 21:56:14'),
(93, '3JqcgQe2uiefjnDOjwXmzLLB3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Article 226 Constitution of India – Cause of action', '<div><b>Even if a part of cause of action arises outside the jurisdiction of the High Court, it would have jurisdiction to issue a writ.&nbsp;&nbsp;</b></div><div><b>Nawal Kishore Sharma v. Union of India, (2014) 9 SCC 329.&nbsp;</b></div><div><b>(Kusum Ingots &amp; Alloys Ltd. v. Union of India (2004) 6 SCC 254 followed.)&nbsp;</b><br><br></div><div><b>Paragraphs:</b><br><p style=\"text-align: justify;\"><b><span style=\"font-size: 0.875rem;\">7. The short question that falls for consideration in the facts of the present case is that as to whether the Patna High Court is correct in taking the view that it has no jurisdiction to entertain the writ petition. For answering the said question we would like to consider the provision of Article 226 of the Constitution as it stood prior to amendment. Originally, Article 226 of the Constitution reads as under:<br></span>“226. Power of High Courts to issue certain writs.—(1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories, directions, orders or writs, including&nbsp; writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.<br>(2) The power conferred on a High Court by clause (1) shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32.”<br>8. While interpreting the aforesaid provision, the Constitution Bench of this Court in Election Commission v. Saka Venkata Rao2, held that the writ court would not run beyond the territories subject to its jurisdiction and that the person or the authority affected by the writ must be amenable to court’s jurisdiction either by residence or location within those territories. The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issued under Article 226 of the Constitution which makes no reference to any cause of action or where it arises but insist on the presence of the person or authority within the territories in relation to which the High Court exercises jurisdiction. In another Constitution Bench judgment of this Court in K.S. Rashid and Son v. Income Tax Investigation Commission3, this Court took the similar view and held that the writ court cannot exercise its power under Article 226 beyond its territorial jurisdiction. The Court was of the view that the exercise of power conferred by Article 226 was subject to a twofold limitation viz. firstly, the power is to be exercised in relation to which it exercises jurisdiction and secondly, the person or authority on whom the High Court is empowered to issue writ must be within those territories. These two Constitution Bench judgments came for consideration before a larger Bench of seven Judges of this Court in Lt. Col. Khajoor Singh v. Union of India4. The Bench approved the aforementioned two Constitution Bench judgments and opined that unless there are clear and compelling reasons, which cannot be denied, writ court cannot exercise jurisdiction under Article 226 of the Constitution beyond its territorial jurisdiction.<br>9. The interpretation given by this Court in the aforesaid decisions resulted in undue hardship and inconvenience to the citizens to invoke writ jurisdiction. As a result, clause (1-A) was inserted in Article 226 by the Constitution (Fifteenth) Amendment Act, 1963 and subsequently renumbered as clause (2) by the Constitution (Forty-second) Amendment Act, 1976. The amended clause (2) now reads as under:<br>“226. Power of High Courts to issue certain writs.—(1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto&nbsp; and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose<br>(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.<br>On a plain reading of the amended provisions in clause (2), it is clear that now the High Court can issue a writ when the person or the authority against whom the writ is issued is located outside its territorial jurisdiction, if the cause of action wholly or partially arises within the court’s territorial jurisdiction. Cause of action for the purpose of Article 226(2) of the Constitution, for all intent and purpose must be assigned the same meaning as envisaged under Section 20(c) of the Code of Civil Procedure. The expression cause of action has not been defined either in the Code of Civil Procedure or the Constitution. Cause of action is bundle of facts which is necessary for the plaintiff to prove in the suit before he can succeed. The term “cause of action” as appearing in clause (2) came up for consideration time and again before this Court.<br>10. In State of Rajasthan v. Swaika Properties5, the fact was that the respondent Company having its registered office in Calcutta owned certain land on the outskirts of Jaipur City, was served with notice for acquisition of land under the Rajasthan Urban Improvement Act, 1959. Notice was duly served on the Company at its registered office in Calcutta. The Company, first appeared before the Special Court and finally the Calcutta High Court by filing a writ petition challenging the notification of acquisition. The matter ultimately came before this Court to answer a question as to whether the service of notice under Section 52(2) of the Act at the registered office of the respondent in Calcutta was an integral part of cause of action and was it sufficient to invest the Calcutta High Court with a jurisdiction to entertain the petition challenging the impugned notification. Answering the question this Court held: (Swaika Properties case5, SCC pp. 222-23, paras 7-8)<br>&nbsp;“7. Upon these facts, we are satisfied that the cause of action neither wholly nor in part arose within the territorial limits of the Calcutta High Court and therefore the learned Single Judge had no jurisdiction to issue a rule nisi on the petition filed by the respondents under Article 226 of the Constitution or to make the ad interim ex parte prohibitory order restraining the appellants from taking any steps to take possession of the land acquired. Under sub-section (5) of Section 52 of the Act the appellants were entitled to require the respondents to surrender or deliver possession of the lands acquired forthwith and upon their failure to do so,&nbsp; take immediate steps to secure such possession under sub-section (6) thereof.<br>8. The expression ‘cause of action’ is tersely defined in Mulla’s Code of Civil Procedure:<br>‘The “cause of action” means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court.’<br>In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. The mere service of notice under Section 52(2) of the Act on the respondents at their registered office at 18-B, Brabourne Road, Calcutta i.e. within the territorial limits of the State of West Bengal, could not give rise to a cause of action within that territory unless the service of such notice was an integral part of the cause of action. The entire cause of action culminating in the acquisition of the land under Section 52(1) of the Act arose within the State of Rajasthan i.e. within the territorial jurisdiction of the Rajasthan High Court at the Jaipur Bench. The answer to the question whether service of notice is an integral part of the cause of action within the meaning of Article 226(2) of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action. The Notification dated 8-2-1984 issued by the State Government under Section 52(1) of the Act became effective the moment it was published in the Official Gazette as thereupon the notified land became vested in the State Government free from all encumbrances. It was not necessary for the respondents to plead the service of notice on them by the Special Officer, Town Planning Department, Jaipur under Section 52(2) for the grant of an appropriate writ, direction or order under Article 226 of the Constitution for quashing the notification issued by the State Government under Section 52(1) of the Act. If the respondents felt aggrieved by the acquisition of their lands situate at Jaipur and wanted to challenge the validity of the notification issued by the State Government of Rajasthan under Section 52(1) of the Act by a petition under Article 226 of the Constitution, the remedy of the respondents for the grant of such relief had to be sought by filing such a petition before the Rajasthan High Court, Jaipur Bench, where the cause of action wholly or in part arose.”<br>11. This provision was again considered by this Court in Oil and Natural Gas Commission v. Utpal Kumar Basu6. In this case the petitioner Oil and Natural Gas Commission (ONGC) through its consultant Engineers India Limited (EIL) issued an advertisement in the newspaper inviting tenders for setting up of Kerosene Recovery Processing Unit in Gujarat mentioning that the tenders containing offers were to be communicated to EIL, New Delhi. After the final decision was taken by the Steering Committee at New Delhi, the respondent NICCO moved the Calcutta High Court praying that ONGC be&nbsp; restrained from awarding the contract to any other party. It was pleaded in the petition that NICCO came to know of the tender from the publication in the Times of India within the jurisdiction of the Calcutta High Court. This Court by setting aside the order passed by the Calcutta High Court came to the following conclusion: (Utpal Kumar Basu case6, SCC p. 717, para 6)<br>“6. Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition. Therefore, the question whether in the instant case the Calcutta High Court had jurisdiction to entertain and decide the writ petition in question even on the facts alleged must depend upon whether the averments made in paras 5, 7, 18, 22, 26 and 43 are sufficient in law to establish that a part of the cause of action had arisen within the jurisdiction of the Calcutta High Court.”<br>12. In Kusum Ingots &amp; Alloys Ltd. v. Union of India7, this Court elaborately discussed clause (2) of Article 226 of the Constitution, particularly the meaning of the word “cause of action” with reference to Section 20(c) and Section 141 of the Code of Civil Procedure and observed: (SCC p. 259, paras 9-10)<br>“9. Although in view of Section 141 of the Code of Civil Procedure the provisions thereof would not apply to writ proceedings, the phraseology used in Section 20(c) of the Code of Civil Procedure and clause (2) of Article 226, being in pari materia, the decisions of this Court rendered on interpretation of Section 20(c) CPC shall apply to the writ proceedings also. Before proceeding to discuss the matter further it may be pointed out that the entire bundle of facts pleaded need not constitute a cause of action as what is necessary to be proved before the petitioner can obtain a decree is the material facts. The expression material facts is also known as integral facts.<br>10. Keeping in view the expressions used in clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter.”<br>Their Lordships further observed as under: (Kusum Ingots &amp; Alloys Ltd. case7, SCC p. 264, paras 29-30)<br>“29. In view of clause (2) of Article 226 of the Constitution of India, now if a part of cause of action arises outside the jurisdiction of the High&nbsp; Court, it would have jurisdiction to issue a writ. The decision in Khajoor Singh4 has, thus, no application.<br>Forum conveniens<br>30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.”<br>13. In Union of India v. Adani Exports Ltd.8, this Court held that in order to confer jurisdiction on a High Court to entertain a writ petition it must disclose that the integral facts pleaded in support of the cause of action do constitute a cause so as to empower the Court to decide the dispute and the entire or a part of it arose within its jurisdiction. Each and every fact pleaded by the respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the Court’s territorial jurisdiction unless those facts are such which have a nexus or relevance with the lis i.e. involved in the case. This Court observed: (SCC pp. 573-74, para 17)<br>“17. It is seen from the above that in order to confer jurisdiction on a High Court to entertain a writ petition or a special civil application as in this case, the High Court must be satisfied from the entire facts pleaded in support of the cause of action that those facts do constitute a cause so as to empower the court to decide a dispute which has, at least in part, arisen within its jurisdiction. It is clear from the above judgment that each and every fact pleaded by the respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the court’s territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned. If we apply this principle then we see that none of the facts pleaded in para 16 of the petition, in our opinion, falls into the category of bundle of facts which would constitute a cause of action giving rise to a dispute which could confer territorial jurisdiction on the courts at Ahmedabad.”<br>14. In Om Prakash Srivastava v. Union of India9, answering a similar question this Court observed that on a plain reading of clause (2) of Article 226 it is manifestly clear that the High Court can exercise power to issue direction, order or writs for the enforcement of any of the fundamental rights or for any other purpose if the cause of action in relation to which it exercises jurisdiction notwithstanding that the seat of the Government or&nbsp; authority or the residence of the person against whom the direction, order or writ is issued is not within the said territory. In para 7 this Court observed: (SCC p. 210)<br>&nbsp;“7. The question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territorial limits of any High Court has to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution. In order to maintain a writ petition, a writ petitioner has to establish that a legal right claimed by him has prima facie either been infringed or is threatened to be infringed by the respondent within the territorial limits of the Court’s jurisdiction and such infringement may take place by causing him actual injury or threat thereof.”<br>15. In Rajendran Chingaravelu v. CIT10, this Court while considering the scope of Article 226(2) of the Constitution, particularly the cause of action in maintaining a writ petition, held as under: (SCC p. 461, paras 9 &amp; 11)<br>“9. The first question that arises for consideration is whether the Andhra Pradesh High Court was justified in holding that as the seizure took place at Chennai (Tamil Nadu), the appellant could not maintain the writ petition before it. The High Court did not examine whether any part of cause of action arose in Andhra Pradesh. Clause (2) of Article 226 makes it clear that the High Court exercising jurisdiction in relation to the territories within which the cause of action arises wholly or in part, will have jurisdiction. This would mean that even if a small fraction of the cause of action (that bundle of facts which gives a petitioner, a right to sue) accrued within the territories of Andhra Pradesh, the High Court of that State will have jurisdiction.<br>* * *<br>11. Normally, we would have set aside the order and remitted the matter to the High Court for decision on merits. But from the persuasive submissions of the appellant, who appeared in person on various dates of hearing, two things stood out. Firstly, it was clear that the main object of the petition was to ensure that at least in future, passengers like him are not put to unnecessary harassment or undue hardship at the airports. He wants a direction for issuance of clear guidelines and instructions to the inspecting officers, and introduction of definite and efficient verification/investigation procedures. He wants changes in the present protocol where the officers are uncertain of what to do and seek instructions and indefinitely wait for clearances from higher-ups for each and every routine step, resulting in the detention of passengers for hours and hours. In short, he wants the enquiries, verifications and investigations to be efficient, passenger-friendly and courteous. Secondly, he wants the Department/officers concerned to acknowledge that he was unnecessarily harassed.”<br>&nbsp;16. Regard being had to the discussion made hereinabove, there cannot be any doubt that the question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territorial limit of any High Court has to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution. In order to maintain a writ petition, the petitioner has to establish that a legal right claimed by him has been infringed by the respondents within the territorial limit of the Court’s jurisdiction.<br>17. We have perused the facts pleaded in the writ petition and the documents relied upon by the appellant. Indisputably, the appellant reported sickness on account of various ailments including difficulty in breathing. He was referred to hospital. Consequently, he was signed off for further medical treatment. Finally, the respondent permanently declared the appellant unfit for sea service due to dilated cardiomyopathy (heart muscle disease). As a result, the Shipping Department of the Government of India issued an Order on 12-4-2011 cancelling the registration of the appellant as a seaman. A copy of the letter was sent to the appellant at his native place in Bihar where he was staying after he was found medically unfit. It further appears that the appellant sent a representation from his home in the State of Bihar to the respondent claiming disability compensation. The said representation was replied by the respondent, which was addressed to him on his home address in Gaya, Bihar rejecting his claim for disability compensation. It is further evident that when the appellant was signed off and declared medically unfit, he returned back to his home in the district of Gaya, Bihar and, thereafter, he made all claims and filed representation from his home address at Gaya and those letters and representations were entertained by the respondents and replied and a decision on those representations were communicated to him on his home address in Bihar. Admittedly, the appellant was suffering from serious heart muscle disease (dilated cardiomyopathy) and breathing problem which forced him to stay in his native place, wherefrom he had been making all correspondence with regard to his disability compensation. Prima facie, therefore, considering all the facts together, a part or fraction of cause of action arose within the jurisdiction of the Patna High Court where he received a letter of refusal disentitling him from disability compensation.<br>18. Apart from that, from the counter-affidavit of the respondents and the documents annexed therewith, it reveals that after the writ petition was filed in the Patna High Court, the same was entertained and notices were issued. Pursuant to the said notice, the respondents appeared and participated in the proceedings in the High Court. It further reveals that after hearing the counsel appearing for both the parties, the High Court passed an interim order on 18-9-201211 directing the authorities of Shipping Corpn. of India to pay at least a sum of Rs 2.75 lakhs, which shall be subject to the result of the writ petition. Pursuant to the interim order, the respondent Shipping Corpn. of India remitted Rs 2,67,270 (after deduction of income tax) to the bank&nbsp; account of the appellant. However, when the writ petition was taken up for hearing, the High Court took the view that no cause of action, not even a fraction of cause of action, has arisen within its territorial jurisdiction.<br>19. Considering the entire facts of the case narrated hereinbefore including the interim order11 passed by the High Court, in our considered opinion, the writ petition ought not to have been dismissed for want of territorial jurisdiction. As noticed above, at the time when the writ petition was heard for the purpose of grant of interim relief, the respondents instead of raising any objection with regard to the territorial jurisdiction opposed the prayer on the ground that the appellant-writ petitioner was offered an amount of Rs 2.75 lakhs, but he refused to accept the same and challenged the order granting severance compensation by filing the writ petition. The impugned order, therefore, cannot be sustained in the peculiar facts and circumstances of this case.<br>20. In the aforesaid, the appeal is allowed and the impugned order1 passed by the High Court is set aside and the matter is remitted to the High Court for deciding the writ petition on merits.<br>———<br>† Arising out of SLP (C) No. 19549 of 2013. From the Judgment and Order dated 16-4-2013 in CWJC No. 3160 of 2012 passed by the High Court of Patna<br>1 Nawal Kishore Sharma v. Union of India, CWJC No. 3160 of 2012, decided on 16-4-2013 (Pat)<br>2 AIR 1953 SC 210<br>3 AIR 1954 SC 207<br>4 Lt. Col. Khajoor Singh v. Union of India, AIR 1961 SC 532<br>5 (1985) 3 SCC 217<br>6 Oil and Natural Gas Commission v. Utpal Kumar Basu, (1994) 4 SCC 711<br>7 (2004) 6 SCC 254<br>8 (2002) 1 SCC 567<br>9 (2006) 6 SCC 207 : (2006) 3 SCC (Cri) 24<br>10 (2010) 1 SCC 457 : (2010) 1 SCC (Cri) 810<br>11 Nawal Kishore Sharma v. Union of India, CWJC No. 3160 of 2012, order dated 18-9-2012 (Pat)</b></p></div>', '93e946d6f100c2e3c1db534d0b83e62a.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 21:05:36', '2021-01-22 17:10:15'),
(94, 'wBFNR0ijXAeBOoLecnMS0mndg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Grant of ex-parte temporary injunction.', '<div><b>Law laid down in Shiv Kumar Chadha v. Municipal Corpn. of Delhi, (1993) 3 SCC 161.&nbsp;</b></div><div><br><blockquote class=\"blockquote\"><b>Paragraphs:&nbsp;<br></b><span style=\"font-size: 0.875rem;\">Para 35. As such whenever a court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. But any such ex parte order should be in force up to a particular date before which the plaintiff should be required to serve the notice on the defendant concerned.&nbsp;<br></span><span style=\"font-size: 0.875rem;\">Para 36. Accordingly we direct that the application for interim injunction should be considered and disposed of in the following manner:<br></span><span style=\"font-size: 0.875rem;\">(i) The court should first direct the plaintiff to serve a copy of the application with a copy of the plaint along with relevant documents on the counsel for the Corporation or any competent authority of the Corporation and the order should be passed only after hearing the parties.<br></span><span style=\"font-size: 0.875rem;\">(ii) If the circumstances of a case so warrant and where the court is of the opinion, that the object of granting the injunction would be defeated by delay, the court should record reasons for its opinion as required by proviso to Rule 3 of Order 39 of the Code, before passing an order for injunction. The court must direct that such order shall operate only for a period of two weeks, during which notice along with copy of the application, plaint and relevant documents should be served on the competent authority or the counsel for the Corporation. Affidavit of service of notice should be filed as provided by proviso to Rule 3 of Order 39 aforesaid. If the Corporation has entered appearance, any such ex parte order of injunction should be extended only after hearing the counsel for the Corporation.<br></span><span style=\"font-size: 0.875rem;\">(iii) While passing an ex parte order of injunction the court shall direct the plaintiff to give an undertaking that he will not make any further construction upon the premises till the application for injunction is finally heard and disposed of.</span></blockquote><p></p><br><p></p></div>', '9955461be08d4f9614685869f76f2751.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 21:08:40', '2021-01-22 17:05:50'),
(95, 'lSHAhwec0OsVewciQHOBTO4LG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Is a Sanyasi barred from claiming property to which he is otherwise entitled to?', '<div><b>Can a person who became ‘Sanyasi’ giving up all worldly possessions as per Shastras, but without executing a registered release deed, claim partition of the joint family properties.?&nbsp;</b></div><div><b>If someone embraces Sanyas, that may amount to civil death leading to succession of his own properties among his heirs. But whether he himself is completely barred from re-claiming the properties after embracing Sanyas or, to say, giving up Sanyas and embracing his original avtar. ?</b></div><div><br>The earliest judgment on Sanyasi is Avasarala Kondal Row And Anr. vs Iswara Sanyasi Swamulavaru Alias decided on 13 February, 1917 reported in (1917) 33 MLJ 63, from which the above passage is extracted. - The postulant for Sanyasam after learning the duties of a Sanyasi should first perform his death ceremonies,--this however is by some not considered necessary,--and the eight sradhas the last of which is his own sradha; he must then distribute his wealth to his sons and brahmins reserving enough for the homam (sacrifice in the fire) to be subsequently performed. Then he has to perform Prajapathyeshti or Agneshti and finally Viraja Homam. These are sacrifices in fire and are purificatory ceremonies. At the end of ceremonies the postulant has no property at all for even the sacrificial vessels if they are of wood must be burnt in the fire and if they are of metal must be given to the priest. After these are done he takes leave of his sons, and standing in water takes some water in his hand and drops it saying that he has given up desire for sons, wealth, world and everything (Sarva Thyagam). He makes a vow that he will not injure any living being. Finally there is the uttering of the \' Praisha Mahtram,\' The literal meaning of the. Mantram is \'have been given up by me\' (Sanyastham maya). The mantram is to be pronounced low three times, and loud twice and till the mantram is pronounced the man does not become a Sanyasi. The above is common to all Sanyasams, but there is a difference of opinion as to the discarding of the sacred thread, as to the shaving of the tuft and as to the number of sticks in the staff. This is due to certain doctrinal differences which it is unnecessary to deal with for the present purpose beyond saying this; that the discarding of the holy thread which implies the giving up of all the duties prescribed not merely for the order (Ashrama), but also for the caste (varna) including the obligatory Sandhyavandanam, is proper only to the highest kind of Sanyasi, Paramahamsa. It is to be observed that the essential feature of Sanyasam is the actually relinquishment of all property and an actual abandonment of all worldly concerns, down to even a desire for them; and it is said in the most emphatic terms that a person adopting Sanyasam, without this abandonment of all desires (vairagyam) goes to fearful narakam (Dharma Sindhu, page 364). The rule as to inheritance is explained by the commentators as applying to the staff, water pot, and sandals of a Sanyasi, which alone is permitted to him (Manu, Ch. VI, verse 41 \'Pavitropakitiah\'). Without actually relinquishing or abandoning his property a man cannot become a Sanyasi.</div><div>Pollock and Maitland\'s \' in the ‘History of English Law \' say, \"A monk or nun cannot acquire or have any proprietary rights. When a man becomes \'professed in religion\' his heir at once inherits from him any land that he has, and, if he has made a will it takes effect at once as though he were dead. If after this a kinsman of his dies leaving land which according to the ordinary rules of inheritance would descend, he is overlooked as though he were no longer in the land of the living; the inheritance misses him and passes to some more distant relative. The rule is not that what descends to him belongs to the house of which he is an inmate; nothing descends to him for he is already dead. In the eye of Ecclesiastical law the monk who became a proprietarius, the monk, that is, who arrogated to himself any proprietary rights on the separate enjoyment of any wealth, committed about as bad an offence as he could commit.\" Except that the Smriti writers and commentators had no conception of a will, the above passage accurately represents the status of a Sanyasi under the Hindu Law. It does not seem to be necessary that there should be an actual transfer to, or a relinquishment in favour of any particular person, but one about to become a Sanyasi may simply abandon his property in which case the law will vest it in his heirs. In the Dayabhaga in the very beginning where the author discusses the meaning of the word \'Daya\' and origin of right to property, he points out that not merely by gift, but by death, Sanyasam, etc., the right of the previous owner is lost, and that of the successor begins. The same principle is applied in fixing the time for partition. The author explains that the phrase \"the death of the father \" does not necessarily mean actual death, but includes Sanyasam.</div><div>But the judgment is silent on the right of ‘Sanyasi’ to claim ancestral property through partition. Is there a provision under the Hindu Succession Act.</div>', '0aa45d6705fea58150f6404325d72c55.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 21:09:31', '2021-01-22 16:59:30');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(96, 'xjyrFNhXYXA9UwSsyOruVD4SV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act, 1996. Disability of an arbitrator after 2015 amendment', '<div style=\"text-align: justify;\">The disabled arbitrator can NOT nominate another person as an arbitrator.</div><div style=\"text-align: justify;\">(Managing Director of a Govt company for example, becomes disabled after 2015 amendment to arbitrate on the disputes)</div><div style=\"text-align: justify;\">- TRF Limited vs Energo Engineering Project Limited&nbsp;</div><div style=\"text-align: justify;\">(2017) 8 SCC 377</div><div style=\"text-align: justify;\">2015 Amendment:&nbsp;</div><div style=\"text-align: justify;\">In section 12 of the principal Act,— (i) for sub-section (1), the following sub-section shall be substituted, namely:— “(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances,— (a) such as the existence either direct or indirect, of any past or present relationship with or interest in any of the parties or in relation to the subject-matter in dispute, whether financial, business, professional or other kind, which is likely to give rise to justifiable doubts as to his independence or impartiality; and (b) which are likely to affect his ability to devote sufficient time to the arbitration and in particular his ability to complete the entire arbitration within a period of twelve months.</div><div style=\"text-align: justify;\">Explanation 1.—The grounds stated in the Fifth Schedule shall guide in determining whether circumstances exist which give rise to justifiable doubts as to the independence or impartiality of an arbitrator.&nbsp;</div><div style=\"text-align: justify;\">Explanation 2.—The disclosure shall be made by such person in the form specified in the Sixth Schedule.”; (ii) after sub-section (4), the following sub-section shall be inserted, namely:—&nbsp;</div><div style=\"text-align: justify;\">“(5) Notwithstanding any prior agreement to the contrary, any person whose relationship, with the parties or counsel or the subject-matter of the dispute, falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator: Provided that parties may, subsequent to disputes having arisen between them, waive the applicability of this sub-section by an express agreement in writing.</div><div style=\"text-align: justify;\">THE SEVENTH SCHEDULE [See section 12 (5)] Arbitrator’s relationship with the parties or counsel&nbsp;</div><div style=\"text-align: justify;\">1. The arbitrator is an employee, consultant, advisor or has any other past or present business relationship with a party.&nbsp;</div><div style=\"text-align: justify;\">2. The arbitrator currently represents or advises one of the parties or an affiliate of one of the parties.&nbsp;</div><div style=\"text-align: justify;\">3. The arbitrator currently represents the lawyer or law firm acting as counsel for one of the parties.&nbsp;</div><div style=\"text-align: justify;\">4. The arbitrator is a lawyer in the same law firm which is representing one of the parties.&nbsp;</div><div style=\"text-align: justify;\">5. The arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an affiliate of one of the parties if the affiliate is directly involved in the matters in dispute in the arbitration.&nbsp;</div><div style=\"text-align: justify;\">6. The arbitrator’s law firm had a previous but terminated involvement in the case without the arbitrator being involved himself or herself.&nbsp;</div><div style=\"text-align: justify;\">7. The arbitrator’s law firm currently has a significant commercial relationship with one of the parties or an affiliate of one of the parties.&nbsp;</div><div style=\"text-align: justify;\">8. The arbitrator regularly advises the appointing party or an affiliate of the appointing party even though neither the arbitrator nor his or her firm derives a significant financial income therefrom.&nbsp;</div><div style=\"text-align: justify;\">9. The arbitrator has a close family relationship with one of the parties and in the case of companies with the persons in the management and controlling the company.&nbsp;</div><div style=\"text-align: justify;\">10. A close family member of the arbitrator has a significant financial interest in one of the parties or an affiliate of one of the parties.&nbsp;</div><div style=\"text-align: justify;\">11. The arbitrator is a legal representative of an entity that is a party in the arbitration. 12. The arbitrator is a manager, director or part of the management, or has a similar controlling influence in one of the parties.&nbsp;</div><div style=\"text-align: justify;\">13. The arbitrator has a significant financial interest in one of the parties or the outcome of the case.&nbsp;</div><div style=\"text-align: justify;\">14. The arbitrator regularly advises the appointing party or an affiliate of the appointing party, and the arbitrator or his or her firm derives a significant financial income therefrom. Relationship of the arbitrator to the dispute&nbsp;</div><div style=\"text-align: justify;\">15. The arbitrator has given legal advice or provided an expert opinion on the dispute to a party or an affiliate of one of the parties.&nbsp;</div><div style=\"text-align: justify;\">16. The arbitrator has previous involvement in the case. Arbitrator’s direct or indirect interest in the dispute&nbsp;</div><div style=\"text-align: justify;\">17. The arbitrator holds shares, either directly or indirectly, in one of the parties or an affiliate of one of the parties that is privately held.&nbsp;</div><div style=\"text-align: justify;\">18. A close family member of the arbitrator has a significant financial interest in the outcome of the dispute. a third party who may be liable to recourse on the part of the unsuccessful party in the dispute.&nbsp;</div><div style=\"text-align: justify;\">Explanation 1.—The term “close family member” refers to a spouse, sibling, child, parent or life partner. Explanation 2.—The term “affiliate” encompasses all companies in one group of companies including the parent company.&nbsp;</div><div style=\"text-align: justify;\">Explanation 3.—For the removal of doubts, it is clarified that it may be the practice in certain specific kinds of arbitration, such as maritime or commodities arbitration, to draw arbitrators from a small, specialised pool. If in such fields it is the custom and practice for parties frequently to appoint the same arbitrator in different cases, this is a relevant fact to be taken into account while applying the rules set out above.’.</div>', 'c0e47ece612ddd8c37c5c183ac83fe63.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 21:11:41', '2021-01-22 16:58:05'),
(97, 'HgFGAmI1Nu7DFvfs36DNKbstd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law – Meaning of “Cognizance” defined', '<div><b>S.R. Sukumar v. S. Sunaad Raghuram, (2015) 9 SCC 609</b></div><div><br><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Paragraphs:<br></b><span style=\"font-size: 0.875rem; text-align: left;\"><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">8. Section 200 CrPC provides for the procedure for the Magistrate taking cognizance of an offence on complaint. The Magistrate is not bound to take cognizance of an offence merely because a complaint has been filed before him when in fact the complaint does not disclose a cause of action. The language in Section 200 CrPC</span></div></span><div><span style=\"font-size: 0.875rem;\">“A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any…”</span></div><div><span style=\"font-size: 0.875rem;\">clearly suggests that for taking cognizance of an offence on complaint, the court shall examine the complainant upon oath. The object of examination of the complainant is to find out whether the complaint is justifiable or is vexatious. Merely because the complainant was examined that does not mean that the Magistrate has taken cognizance of the offence. Taking cognizance of an offence means the Magistrate must have judicially applied the mind to the contents of the complaint and indicates that the Magistrate takes judicial notice of an offence.<br></span><span style=\"font-size: 0.875rem;\">9. Mere presentation of the complaint and receipt of the same in the court does not mean that the Magistrate has taken cognizance of the offence. In Narsingh Das Tapadia v. Goverdhan Das Partani2 it was held that the mere presentation of a complaint cannot be held to mean that the Magistrate has taken the cognizance.</span></div></div><span style=\"font-size: 0.875rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">10. In Subramanian Swamy v. Manmohan Singh3 this Court explained the meaning of the word “cognizance” holding that: (SCC p. 90, para 34)</span></div></span><span style=\"font-size: 0.875rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">“34. … In legal parlance cognizance is ‘taking judicial notice by the court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially’.”<br></span><span style=\"font-size: 0.875rem; text-align: left;\">11. Section 200 CrPC contemplates a Magistrate taking cognizance of an offence on complaint to examine the complaint and examine upon oath the complainant and the witnesses present, if any. Then normally three courses are available to the Magistrate. The Magistrate can either issue summons to the accused or order an inquiry under Section 202 CrPC or dismiss the complaint under Section 203 CrPC. Upon consideration of the statement of the complainant and the material adduced at that stage if the Magistrate is satisfied that there are sufficient grounds to proceed, he can proceed to issue process under Section 204 CrPC. Section 202 CrPC contemplates “postponement of issue of process”. It provides that the Magistrate on receipt of a complaint of an offence, of which he is authorised to take cognizance may, if he thinks fit, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself, or have an inquiry made by any Magistrate subordinate to him, or an investigation made by a police officer, or by some other person for the purpose of deciding whether or not there is sufficient ground for proceeding. If the Magistrate finds no sufficient ground for proceeding, he can dismiss the complaint by recording briefly the reasons for doing so as contemplated under Section 203 CrPC. A Magistrate takes cognizance of an offence when he decides to proceed against the person accused of having committed that offence and not at the time when the Magistrate is just informed either by the complainant by filing the complaint or by the police report about the commission of an offence.</span></div></span><span style=\"font-size: 0.875rem;\">12. “Cognizance” therefore has a reference to the application of judicial mind by the Magistrate in connection with the commission of an offence and not merely to a Magistrate learning that some offence had been committed. Only upon examination of the complainant, the Magistrate will proceed to apply the judicial mind whether to take cognizance of the offence or not. Under Section 200 CrPC, when the complainant is examined, the Magistrate cannot be said to have ipso facto taken the cognizance, when the Magistrate was merely gathering the material on the basis of which he will decide whether a prima facie case is made out for taking cognizance of the offence or not. “Cognizance of offence” means taking notice of the accusations and applying the judicial mind to the contents of the complaint and the material filed therewith. It is neither practicable nor desirable to define as to what is meant by taking cognizance. Whether the Magistrate has taken cognizance of the offence or not will depend upon the facts and circumstances of the particular case.<br></span><span style=\"font-size: 0.875rem;\">13. In Chief Enforcement Officer v. Videocon International Ltd.4, considering the scope of the expression “cognizance” it was held as under: (SCC p. 499, para 19)<br></span><span style=\"font-size: 0.875rem;\">“19. The expression ‘cognizance’ has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means ‘become aware of’ and when used with reference to a court or a Judge, it connotes ‘to take notice of judicially’. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.”<br></span><span style=\"font-size: 0.875rem;\">14. A three-Judge Bench of this Court in R.R. Chari v. State of U.P.5, while considering what the phrase “taking cognizance” means, approved the decision of the Calcutta High Court in Supt. and Remembrancer of Legal Affairs v. Abani Kumar Banerjee6, wherein it was observed that: (R.R. Chari case5, AIR p. 210, para 9)<br></span><span style=\"font-size: 0.875rem;\">“9. …‘What is “taking cognizance” has not been defined in the Criminal Procedure Code and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a) of the Criminal Procedure Code, he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter—proceeding under Section 200, and thereafter sending it for enquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind e.g. ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.’ (Supt. and Remembrancer of Legal Affairs case6, SCC OnLine Cal, para 8)”<br></span><span style=\"font-size: 0.875rem;\">(emphasis supplied)<br></span><span style=\"font-size: 0.875rem;\">The same view was reiterated by this Court in Jamuna Singh v. Bhadai Shah7 and Nirmaljit Singh Hoon v. State of W.B.8<br></span><span style=\"font-size: 0.875rem;\">15. Elaborating upon the words of the expression “taking cognizance” of an offence by a Magistrate within the contemplation of Section 190 CrPC, in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy9 this Court held as under: (SCC p. 257, para 14)<br></span><span style=\"font-size: 0.875rem;\">“14. … But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV to the Code of 1973, he is said to have taken cognizance of the offence within the meaning to Section 190(1)(a). If, instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence.”<br></span><span style=\"font-size: 0.875rem;\">16. The contention of the appellant is that the act of taking cognizance of an offence by the Magistrate precedes the examination of the complainant under Section 200 CrPC and the learned Senior Counsel for the appellant placed reliance on the decision of this Court in CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd.10 wherein this Court has held as under: (SCC p. 471, para 10)<br></span><span style=\"font-size: 0.875rem;\">“10. In the instant case, the appellant had filed a detailed complaint before the Magistrate. The record shows that the Magistrate took cognizance and fixed the matter for recording of the statement of the complainant on 1-6-2000. Even if we assume, though that is not the case, that the words ‘cognizance taken’ were not to be found in the order recorded by him on that date, in our view that would make no difference. Cognizance is taken of the offence and not of the offender and, therefore, once the court on perusal of the complaint is satisfied that the complaint discloses the commission of an offence and there is no reason to reject the complaint at that stage, and proceeds further in the matter, it must be&nbsp; held to have taken cognizance of the offence. One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizance and examining the complainant on oath, the court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint.”<br></span><span style=\"font-size: 0.875rem;\">1 2012 SCC OnLine Kar 1619<br></span><span style=\"font-size: 0.875rem;\">2 (2000) 7 SCC 183 : 2000 SCC (Cri) 1326 : AIR 2000 SC 2946<br></span><span style=\"font-size: 0.875rem;\">3 (2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&amp;S) 666<br></span><span style=\"font-size: 0.875rem;\">4 (2008) 2 SCC 492 : (2008) 1 SCC (Cri) 471<br></span><span style=\"font-size: 0.875rem;\">5 AIR 1951 SC 207 : (1951) 52 Cri LJ 775 : 1951 SCR 312<br></span><span style=\"font-size: 0.875rem;\">6 1950 SCC OnLine Cal 49 : AIR 1950 Cal 437<br></span><span style=\"font-size: 0.875rem;\">7 AIR 1964 SC 1541 : (1964) 2 Cri LJ 468 : (1964) 5 SCR 37<br></span><span style=\"font-size: 0.875rem;\">8 (1973) 3 SCC 753 : 1973 SCC (Cri) 521<br></span><span style=\"font-size: 0.875rem;\">9 (1976) 3 SCC 252 : 1976 SCC (Cri) 380 : AIR 1976 SC 1672<br></span><span style=\"font-size: 0.875rem;\">10 (2005) 7 SCC 467 : 2005 SCC (Cri) 1697<br></span><span style=\"font-size: 0.875rem;\">11 (1987) 3 SCC 684 : 1987 SCC (Cri) 632</span><p></p><b>Compiled by&nbsp;S.Basavaraj&nbsp;Daksha Legal</b><p></p></div>', '008d903d05df7372a57cf886116444d9.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-12', 1, '', '', '2020-12-02 21:12:28', '2021-01-22 00:30:19'),
(98, 'yFKn8THgZ5jELTDoxKrr4IIlc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law – Meaning of “Cognizance” defined', '<div style=\"text-align: justify;\"><b>S.R. Sukumar v. S. Sunaad Raghuram, (2015) 9 SCC 609</b></div><div><div style=\"text-align: justify;\"><br></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Paragraph 8.&nbsp;</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem; font-weight: 400;\">Section 200 CrPC provides for the procedure for the Magistrate taking cognizance of an offence on complaint. The Magistrate is not bound to take cognizance of an offence merely because a complaint has been filed before him when in fact the complaint does not disclose a cause of action. The language in Section 200 CrPC</span></div></b></div><div style=\"text-align: justify;\">“A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any…”</div><div style=\"text-align: justify; \">clearly suggests that for taking cognizance of an offence on complaint, the court shall examine the complainant upon oath. The object of examination of the complainant is to find out whether the complaint is justifiable or is vexatious. Merely because the complainant was examined that does not mean that the Magistrate has taken cognizance of the offence. Taking cognizance of an offence means the Magistrate must have judicially applied the mind to the contents of the complaint and indicates that the Magistrate takes judicial notice of an offence.</div><div style=\"text-align: justify;\">9. Mere presentation of the complaint and receipt of the same in the court does not mean that the Magistrate has taken cognizance of the offence. In Narsingh Das Tapadia v. Goverdhan Das Partani2 it was held that the mere presentation of a complaint cannot be held to mean that the Magistrate has taken the cognizance.</div><div style=\"text-align: justify;\">10. In Subramanian Swamy v. Manmohan Singh3 this Court explained the meaning of the word “cognizance” holding that: (SCC p. 90, para 34)</div><div style=\"text-align: justify;\">“34. … In legal parlance cognizance is ‘taking judicial notice by the court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially’.”</div><div style=\"text-align: justify;\">11. Section 200 CrPC contemplates a Magistrate taking cognizance of an offence on complaint to examine the complaint and examine upon oath the complainant and the witnesses present, if any. Then normally three courses are available to the Magistrate. The Magistrate can either issue summons to the accused or order an inquiry under Section 202 CrPC or dismiss the complaint under Section 203 CrPC. Upon consideration of the statement of the complainant and the material adduced at that stage if the Magistrate is satisfied that there are sufficient grounds to proceed, he can proceed to issue process under Section 204 CrPC. Section 202 CrPC contemplates “postponement of issue of process”. It provides that the Magistrate on receipt of a complaint of an offence, of which he is authorised to take cognizance may, if he thinks fit, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself, or have an inquiry made by any Magistrate subordinate to him, or an investigation made by a police officer, or by some other person for the purpose of deciding whether or not there is sufficient ground for proceeding. If the Magistrate finds no sufficient ground for proceeding, he can dismiss the complaint by recording briefly the reasons for doing so as contemplated under Section 203 CrPC. A Magistrate takes cognizance of an offence when he decides to proceed against the person accused of having committed that offence and not at the time when the Magistrate is just informed either by the complainant by filing the complaint or by the police report about the commission of an offence.</div><div style=\"text-align: justify;\">12. “Cognizance” therefore has a reference to the application of judicial mind by the Magistrate in connection with the commission of an offence and not merely to a Magistrate learning that some offence had been committed. Only upon examination of the complainant, the Magistrate will proceed to apply the judicial mind whether to take cognizance of the offence or not. Under Section 200 CrPC, when the complainant is examined, the Magistrate cannot be said to have ipso facto taken the cognizance, when the Magistrate was merely gathering the material on the basis of which he will decide whether a prima facie case is made out for taking cognizance of the offence or not. “Cognizance of offence” means taking notice of the accusations and applying the judicial mind to the contents of the complaint and the material filed therewith. It is neither practicable nor desirable to define as to what is meant by taking cognizance. Whether the Magistrate has taken cognizance of the offence or not will depend upon the facts and circumstances of the particular case.</div><div style=\"text-align: justify;\">13. In Chief Enforcement Officer v. Videocon International Ltd.4, considering the scope of the expression “cognizance” it was held as under: (SCC p. 499, para 19)</div><div style=\"text-align: justify;\">“19. The expression ‘cognizance’ has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means ‘become aware of’ and when used with reference to a court or a Judge, it connotes ‘to take notice of judicially’. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.”</div><div style=\"text-align: justify;\">14. A three-Judge Bench of this Court in R.R. Chari v. State of U.P.5, while considering what the phrase “taking cognizance” means, approved the decision of the Calcutta High Court in Supt. and Remembrancer of Legal Affairs v. Abani Kumar Banerjee6, wherein it was observed that: (R.R. Chari case5, AIR p. 210, para 9)</div><div style=\"text-align: justify;\">“9. …‘What is “taking cognizance” has not been defined in the Criminal Procedure Code and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a) of the Criminal Procedure Code, he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter—proceeding under Section 200, and thereafter sending it for enquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind e.g. ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.’ (Supt. and Remembrancer of Legal Affairs case6, SCC OnLine Cal, para 8)”</div><div style=\"text-align: justify;\">(emphasis supplied)</div><div style=\"text-align: justify;\">The same view was reiterated by this Court in Jamuna Singh v. Bhadai Shah7 and Nirmaljit Singh Hoon v. State of W.B.8</div><div style=\"text-align: justify;\">15. Elaborating upon the words of the expression “taking cognizance” of an offence by a Magistrate within the contemplation of Section 190 CrPC, in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy9 this Court held as under: (SCC p. 257, para 14)</div><div style=\"text-align: justify;\">“14. … But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV to the Code of 1973, he is said to have taken cognizance of the offence within the meaning to Section 190(1)(a). If, instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence.”</div><div style=\"text-align: justify;\">16. The contention of the appellant is that the act of taking cognizance of an offence by the Magistrate precedes the examination of the complainant under Section 200 CrPC and the learned Senior Counsel for the appellant placed reliance on the decision of this Court in CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd.10 wherein this Court has held as under: (SCC p. 471, para 10)</div><div style=\"text-align: justify;\">“10. In the instant case, the appellant had filed a detailed complaint before the Magistrate. The record shows that the Magistrate took cognizance and fixed the matter for recording of the statement of the complainant on 1-6-2000. Even if we assume, though that is not the case, that the words ‘cognizance taken’ were not to be found in the order recorded by him on that date, in our view that would make no difference. Cognizance is taken of the offence and not of the offender and, therefore, once the court on perusal of the complaint is satisfied that the complaint discloses the commission of an offence and there is no reason to reject the complaint at that stage, and proceeds further in the matter, it must be&nbsp; held to have taken cognizance of the offence. One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizance and examining the complainant on oath, the court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint.”</div><div style=\"text-align: justify;\">1 2012 SCC OnLine Kar 1619</div><div style=\"text-align: justify;\">2 (2000) 7 SCC 183 : 2000 SCC (Cri) 1326 : AIR 2000 SC 2946</div><div style=\"text-align: justify;\">3 (2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&amp;S) 666</div><div style=\"text-align: justify;\">4 (2008) 2 SCC 492 : (2008) 1 SCC (Cri) 471</div><div style=\"text-align: justify;\">5 AIR 1951 SC 207 : (1951) 52 Cri LJ 775 : 1951 SCR 312</div><div style=\"text-align: justify;\">6 1950 SCC OnLine Cal 49 : AIR 1950 Cal 437</div><div style=\"text-align: justify;\">7 AIR 1964 SC 1541 : (1964) 2 Cri LJ 468 : (1964) 5 SCR 37</div><div style=\"text-align: justify;\">8 (1973) 3 SCC 753 : 1973 SCC (Cri) 521</div><div style=\"text-align: justify;\">9 (1976) 3 SCC 252 : 1976 SCC (Cri) 380 : AIR 1976 SC 1672</div><div style=\"text-align: justify;\">10 (2005) 7 SCC 467 : 2005 SCC (Cri) 1697</div><div style=\"text-align: justify;\">11 (1987) 3 SCC 684 : 1987 SCC (Cri) 632</div><div style=\"text-align: justify;\">Compiled by&nbsp;</div><div style=\"text-align: justify;\">S.Basavaraj&nbsp;</div><div style=\"text-align: justify;\">Daksha Legal</div>', 'a9b7e850bc30fc94aa3431f8d12e8cb4.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 21:12:29', '2021-01-22 00:23:04'),
(99, '0jeOWejnMn5Hh5lvwHd2HAu7y', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Joint family nucleus and Joint family property - Tests to determine ', '<div><b>1. Karnataka High Court- Thimma v. Doddamma, 2013 SCC OnLine Kar 9987 : ILR 2014 KAR 4491 : (2014) 4 AIR Kant R 521 : (2014) 4 KCCR 3172 : AIR 2015 (NOC 441) 163.</b></div><div><b>Dr. Jawad Rahim-J</b></div><div><b>RSA No. 1181/2006</b></div><div><b>Decided on July 3, 2013</b></div><div><div style=\"text-align: justify;\"><br></div></div><p style=\"text-align: justify;\"></p><p></p><p><span style=\"font-size: 0.875rem;\">(a) In the absence of specific averments in the plaint and proof with regard to the description of joint family properties, mode and manner of acquisition, sufficient nucleus to acquire the properties, the plaintiff is not entitled for the decree of partition and separate possession.&nbsp;<br></span><span style=\"font-size: 0.875rem;\">(b) If there is a feeble attempt in the form of statement with no evidence to show there was existing nucleus of the joint family capable of generating funds to acquire anything tangible to pay the value of the asset acquired, then there is presumption in law that the person in whose name the property was purchased is the true owner and it was not purchased on behalf of joint family members.(Para 16)<br></span><span style=\"font-size: 0.875rem;\">c) In a suit for partition apart from deciding the extent of share that the plaintiff or defendant would be entitled to, there has to be a specific finding as to whether the properties sought to be divided are joint family properties, lest, individual right will certainly be impacted. There must be specific averments in the plaint, firstly with regard to the description of the properties, and secondly, mode and manner of acquisition. There must be averments and proof about the source of acquisition if they are not in the name of the original propositus, but in the name of the other parties to the suit who is shown as coparcener. In other words, if the properties subject matter of adjudication are shown to be in the name of any one of the coparcener, the burden is on the plaintiff to prove that though they are in the name of such individual, in reality it is owned by the joint family.(Para 15)<br></span><span style=\"font-size: 0.875rem;\">(d) In the case of agricultural land, such difficulty normally arises as the name of the cultivators is entered in revenue&nbsp; records as also the name of owner and khatedar, but when properties are shown to have been acquired by sale under the provisions of the Transfer of Property Act, there will be prima facie material to show acquisition or sale and the burden on the plaintiff becomes more to establish sale consideration was paid not by the person in whose name the document stands, but that payment was out of the nucleus of the joint family. Needless to emphasize primary proof to be established is existence of nucleus of joint family capable of generating necessary funds for acquisition of other properties.(Para 16)<br></span><span style=\"font-size: 0.875rem;\">2. Karnataka High Court - M.R. Rajasekharappa v. H.N. Siddananjappa, 1990 SCC OnLine Kar 179 : ILR 1990 KAR 2303 : (1990) 4 Kant LJ 421, at page 2320&nbsp; :&nbsp;<br></span><span style=\"font-size: 0.875rem;\">R.F.A. No. 132 of 1976<br></span><span style=\"font-size: 0.875rem;\">Decided on June 5, 1990<br></span><span style=\"font-size: 0.875rem;\">K.A. Swami and D.R. Vithal Rao-JJ.<br></span><span style=\"font-size: 0.875rem;\">The existence of joint estate is not essential requisite to constitute a joint family and a family which does not own any property may nevertheless be joint. The presumption of union is the greatest in the case of father and sons. The strength of presumption necessarily varies in every case. But the presumption is strong in the case of brothers (See Paras 212(2) and 233(1) of Mulla’s Hindu Law, 15th Edition).&nbsp;<br></span><span style=\"font-size: 0.875rem;\">24. Now it is settled law that the proof of existence of a joint family does not lead to the presumption that it possesses joint property. The property held by a member of a joint family cannot also be presumed to be the joint family property. In a suit for partition, a party who claims that any item of suit property is joint family property, the burden of proving that it is so, rests on the party who asserts It. However, in a case where it is established that the joint family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property claimed to be the joint family property may have been acquired, the presumption arises that it was joint family property and the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family.<br></span><span style=\"font-size: 0.875rem;\">42.1. It is a settled position of law that when once it is established that the joint family possessed sufficient nucleus, the onus shifts on to the person who claims the property as self-acquired, to affirmatively make out that the property was acquired without any aid from the family estate (See Mudigowda v. Ramachandra1 and Appalaswami v. Suryanarayanamurti2. It is also well established that where at the date of acquisition of a particular property, the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of the family funds and was to form part of the joint family property unless the contrary is shown (See K.V. Narayanaswami Iyer v. K.V. Ramakrishna Iyer)3. It is more so in the case of&nbsp; a kartha of a joint family possessing sufficient nucleus at the time of acquisition of the property in his name to prove that he acquired it independent of, and without the aid of, the joint family funds.&nbsp;<br></span><span style=\"font-size: 0.875rem;\">1.(1969) 1 SCC 386 : AIR 1969 SC 1076.<br></span><span style=\"font-size: 0.875rem;\">2.AIR 1947 PC 189.<br></span><span style=\"font-size: 0.875rem;\">3.AIR 1965 SC 289.</span></p><p></p>', 'fa5cdd2e62347aba3dc40d3beb352255.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 21:13:17', '2021-01-22 00:18:01'),
(100, 'BSySdQS63huR9qfRclvW1TuQK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act, 1996', '<div>Not commencing arbitration proceedings within three months from the date of the presentation of the Application under section 9. Interim order granted shall stand vacated without any specific order being passed by the Court to that effect.</div><div><br></div><div>Karnataka High Court. (relying on High Court of Karnataka Arbitration (Proceedings before the Courts) Rules, 2001)</div><div><br></div><div>M/s. Paton Constructions Private Ltd vs M/s. Lorven Projects Ltd and another</div><div><br></div><div>MFA 1440/2014 decided on 13 June 2017</div><div><br></div><div>Justice H.G.Ramesh&nbsp;</div><div>Justice John Michael Cunha&nbsp;</div><div><br></div><div><b>Judgment Link:</b> http://karnatakajudiciary.kar.nic.in/noticeBoard/MFA-1440-2014-AA.pdf</div>', '3ea9799e22aa9f47860033c884108421.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 21:15:39', '2021-01-22 00:07:39');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(101, 'rlX6xS3ojBclqgsAYAFVIn0eJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Dying declaration – two deaths. Dying declaration  by one victim. Effect Held', '<div><b>When one dying declaration is integral part of circumstances resulting in death of any other person, the declaration&nbsp; has relevance for death of such other person also. <br>See discussion regarding law on dying declarations. - Tejram Patil v. State of Maharashtra, (2015) 8 SCC 494</b></div><div><br><b>Paragraphs:</b><br>15…Undoubtedly, as held by the High Court relying on judgment of this Court in Laxman v. State of Maharashtra2 that even in absence of certification by the doctor as to fitness of mind of the declarant and even if the DD is recorded by the police officer, the same can be relied upon. However, the court must be satisfied that the deceased was in a fit mental condition to make the DD and that the statement was faithfully recorded and was otherwise reliable. In the present case, it is difficult to record such satisfaction. There is no material for the Court being satisfied that the deceased was in fit condition to make the declaration. The deceased was in the hospital at the time of her alleged statement but no effort was made by the PSI to ascertain her medical condition or to certify that he had satisfied himself about the fitness of the declarant. The DD does not bear the signature or thumb mark of the deceased. The deceased had sustained 100% burns and succumbed to her injuries on 29-3-1999 at 6.25 a.m. as already noted. The view taken by the High Court that in the peculiarity of facts, authenticity of DD could be accepted, in our opinion, is not sound.</div><div>16. Coming now to the second question of admissibility and reliability of DDs, Exts. 41 and 43 it will be necessary to refer to the text of Section 32(1) of the Evidence Act, which is as follows:</div><div>“32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.—Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases—</div><div>(1) When it relates to cause of death.—When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.</div><div>Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”</div><div>17. A bare perusal of the Section shows:</div><div>(i) Statement should be of a person who is dead/cannot be found/has become incapable of giving evidence, etc.;</div><div>(ii) It should relate to the relevant facts; and</div><div>(iii) It should relate to cause of “his death” or circumstances of the transaction which resulted in “his death”, in cases in which the cause of that person’s death comes into question.</div><div>In the present case, we are concerned with Point (iii) as we are concerned with the question whether statement of Prabhabai is relevant for determining cause of death of Savita. In other words, when charge is of murder of Savita, whether cause of death of Prabhabai which is integral part of the incident can also be held to be in question.</div><div>18. On a plain reading, the statement is admissible about the cause of death or the circumstances of the transaction which resulted in the death of the person making the statement. Question is what happens when two deaths have taken place in the same transaction and circumstances of the transaction resulting in one death is closely interconnected with the other death. Admittedly, the DD of Prabhabai is admissible as to cause of her death as well as the circumstances of the transaction which resulted in her death. Such statement may not by itself be admissible to determine the cause of death of anyone other than the person making the statement. However, when the circumstances of the transaction which resulted in death of the person making the statement as well as death of any other person are part of the same transaction, the same will be relevant also about the cause of death of such other person.</div><div>19. The expressions “relevant” and “facts in issue” are defined in the Evidence Act as follows:</div><div>“‘Relevant’.—One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.</div><div>‘Facts in issue’.—The expression ‘facts in issue’ means and includes—</div><div>any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.”</div><div>20. Section 6 is as follows:</div><div>“6. Relevancy of facts forming part of same transaction.—Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.</div><div>21. Thus, when a dying declaration relating to circumstances of the transaction which resulted in death of a person making the declaration are integral part of circumstances resulting in death of any other person, such dying declaration has relevance for death of such other person also.</div><div>22. We may now refer to the decisions dealing with the said legal issue. In Kashinath Tukaram Jadhav v. State of Maharashtra3, a Division Bench of the Bombay High Court held the same view relying upon the judgment of the Travancore-Cochin High Court, in Lukka Ulahannan v. Travancore-Cochin State4 as follows: (Kashinath Tukaram case3, Cri LJ p. 1450, para 14)</div><div>“14. … ‘The view that the statement of one dead person is not a relevant fact with respect to the question about the death of another person or with respect to the causing of hurt to a third is too narrow to be accepted. To exclude from the evidence statements made by a deceased person as to incidents which occurred during the course of the transaction which resulted in his death statements other than those relating to the cause of his death, would be to import a limitation to the words used in the section which their natural meaning does not warrant. When a limitation like that is intended, the legislature specially provides for it.’ (Lukka Ulahannan case4, AIR p. 104)”</div><div>&nbsp;In doing so, the High Court also relied upon an early Madras High Court judgment in P. Subbu Thevan, In re5 and judgment of the Rangoon High Court in Nga Hla Din v. Emperor6 but dissented from the view taken by the Allahabad High Court in Kunwarpal Singh v. Emperor7. The Bombay High Court in that case dealt with death of two persons in the same transaction. The person making the DD was stabbed while saving the other person who was stabbed. Such DD was held to be admissible for both the deaths. The DD and discussion of the Court in the said judgment are as follows: (Kashinath Tukaram case3, Cri LJ pp. 1453-54, paras 27-28)</div><div>23. In Ratan Gond v. State of Bihar8 two young girls Baisakhi and Aghani, aged 9 years and 5 years respectively were killed. They had gone to the jungle at a short distance from their village. Their mother Jatri had also gone to the jungle. When Jatri came back she found Aghani alone in the house. Aghani gave a statement to her mother about Baisakhi and since she died, the question was whether her statement was admissible about the cause of death of Baisakhi. It may be mentioned that Baisakhi had not returned to her house and her dead body was found on the next day. The question before the Court was whether the statement of Aghani was admissible about the cause of death of Baisakhi, the Court held: (AIR p. 21, para 7)</div><div>“7. … In the case before us, the statements made by Aghani do not relate to the cause of her death or to any of the circumstances relating to her death; on the contrary, the statements relate to the death of her sister. We are, therefore, of the opinion that the statements do not come within Section 32(1) of the Evidence Act and, indeed, Mr Dhebar appearing on behalf of the State, has conceded that Section 32(1) does not apply to the statements of Aghani.”</div><div>It is clear from the above judgment that it was not a case where the transaction in which the person making the statement and the other deceased died was the same as in the present case.</div><div>24. The matter was again considered in Sharad Birdhichand Sarda v. State of Maharashtra9. It was observed: (SCC pp. 133-35, paras 10-11)</div><div>“10. … Coming now to the question of interpretation of Section 32(1) of the Evidence Act, this Court in Ratan Gond v. State of Bihar8, S.K. Das, J. made the following observations: (AIR p. 21, para 7)</div><div>‘7. … The only relevant clause of Section 32 which may be said to have any bearing is clause (1) which relates to statements made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. In the case before us, the statements made by Aghani do not relate to the cause of her death or to any of the circumstances relating to her death; on the contrary, the statements relate to the death of her sister.’</div><div>In the Law of Evidence by Woodroffe and Ameer Ali, (Vol. II) the authors have collected all the cases at one place and indicated their conclusions thus:</div><div>‘To sum up, the test of the relevancy of a statement under Section 32(1), is not what the final finding in the case is but whether the cause of the death of the person making the statement comes into question in the case. The expression “any of the circumstances of the transaction which resulted in his death” is wider in scope than the expression “the cause of his death”; in other words, clause (1) of Section 32 refers to two kinds of statements: (1) statement made by a person as to the cause of his death, and (2) the statement made by a person as to any of the circumstances of the transaction which resulted in his death.</div><div>The words “resulted in his death” do not mean “caused his death”. Thus, it is well settled that declarations are admissible only insofar as they point directly to the fact constituting the res gestae of the homicide; that is to say, to the act of killing and to the circumstances immediately attendant thereon, like threats and difficulties, acts, declarations and incidents, which constitute or accompany and explain the fact or transaction in issue. They are admissible for or against either party, as forming parts of the res gestae.’ (p. 952)</div><div>11. The leading decision on this question, which has been endorsed by this Court, is the case of Pakala Narayana Swami v. King Emperor10 where Lord Atkin has laid down the following tests: (IA pp. 75-76)</div><div>‘… It has been suggested that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, that the “circumstances” can only include the acts done when and where the death was caused. Their Lordships are of opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction: general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. … “Circumstances of the transaction” is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in “circumstantial evidence” which includes evidence of all relevant facts. It is on the other hand narrower than “res gestae”. Circumstances must have some proximate relation to the actual occurrence….</div><div>It will be observed that “the circumstances” are of the transaction which resulted in the death of the declarant.’</div><div>These principles were followed and fully endorsed by a decision of this Court in Shiv Kumar v. State of U.P.11 where the following observations were made:</div><div>‘It is clear that if the statement of the deceased is to be admissible under this section it must be a statement relating to the circumstances of the transaction resulting in his death. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed…. A necessary condition of admissibility under the section is that the circumstance must have some proximate relation to the actual occurrence…. The phrase “circumstances of the transaction” is a phrase that no doubt conveys some limitations. It is not as broad as the analogous use in “circumstantial evidence” which includes evidence of all relevant facts. It is on the other hand narrower than “res gestae”. (See Pakala Narayana Swami v. King Emperor10.)’”</div><div>25. It is thus clear that the DD is admissible not only in relation to the cause of death of the person making the statement and as to circumstances of the transaction which resulted in his death, if the circumstances of the said transaction relate to death of another person, the statement cannot be held to be inadmissible when circumstances of “his” death are integrally connected to the circumstances of death of such other person.</div><div>† From the Judgment and Order dated 17-11-2008 of the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Crl. A. No. 455 of 2003</div><div>1 Criminal Appeal No. 455 of 2003, decided on 17-11-2008 (Bom)</div><div>2 (2002) 6 SCC 710 : 2002 SCC (Cri) 1491</div><div>3 1984 Cri LJ 1447 (Bom)</div><div>4 AIR 1955 TC 104</div><div>5 2 Weir 750 (Mad)</div><div>6 AIR 1936 Rang 187</div><div>7 1947 SCC OnLine All 48 : AIR 1948 All 170</div><div>8 AIR 1959 SC 18 : 1959 Cri LJ 108 : 1959 SCR 1336</div><div>9 (1984) 4 SCC 116 : 1984 SCC (Cri) 487</div><div>10 (1938-39) 66 IA 66 : AIR 1939 PC 47 : 180 IC 1</div><div>11 Criminal Appeal No. 55 of 1966, decided on 29-7-1966 (SC)</div>', 'fd5a2d621f13b820e4a4e7bda87bfbfc.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 21:17:02', '2021-01-22 00:04:55'),
(102, 'CSTrBVFB63FvgjMw86rq6El0R', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Partition of Inam lands', '<div><b>Inherited by the family members but in possession of only one person who cultivated and obtained occupancy certificate. HELD such possession is on behalf of all others. Lands available for partition by all the members.&nbsp;</b></div><div><b>N. Padmamma v. S. Ramakrishna Reddy, (2015) 1 SCC 417&nbsp;</b></div><div><br><b>Paragraphs:</b><br>10. It is fairly well-settled principle of law that the possession of a co-heir is in law treated as possession of all the co-heirs. If one co-heir has come in possession of the properties, it is presumed to be on the basis of a joint title. A co-heir in possession cannot render its possession adverse to other co-heirs not in possession, merely by any secret hostile animus on his own part, in derogation of the title of his other co-heirs. Ouster of the other co-heirs must be evidenced by hostile title coupled by exclusive possession and enjoyment of one of them to the knowledge of the other. (See Corea v. Appuhamy4.) Reference may also be made to the decision of this Court in P. Lakshmi Reddy v. L. Lakshmi Reddy5 wherein this Court has succinctly summed up the legal position as under: (AIR p. 318, para 4)</div><div>“4. … But it is well settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir’s title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.”</div><div>11. Relying upon the principles stated above, this Court in Bhubaneshwar Prasad Narain Singh v. Sidheswar Mukherjee6, almost in similar circumstances held: (SCC p. 561, para 10)</div><div>“10. … In this case we have to consider whether the appellants had laid a claim which a co-sharer could not put forward except by pleading ouster or any other independent ground. Even if they were in actual Khas possession within the meaning of Section 2(k) of the Act it must be held that the plaintiff who was a co-sharer was in constructive possession through the appellants as ‘under the law possession of one co-sharer is possession of all the co-sharers’. We see no reason to hold that the observations of this Court to the above effect in P. Lakshmi Reddy v. L. Lakshmi Reddy5 are not applicable to the case before us. The appellants do not claim to be trespassers on the property: neither did they claim any title to the lands adversely to the plaintiff-respondent. The deeming provision of Section 6 must therefore ensure for the benefit of all who in the eye of the law would be regarded as in actual possession. It follows that the plaintiff had not lost his share in the Bakasht lands and had a right to them though not as tenure-holder or proprietor but certainly as a Raiyat under the provisions of the Land Reforms Act. The appeal must therefore be dismissed with costs.</div><div>12. In Kalgonda Babgonda Patil v. Balgonda Kalgonda Patil7, this Court was dealing with inam lands held by the ancestors of the appellants under Vat Hukums of Kolhapur State. The ancestors of the appellant were holding the watan (inam) land in lieu of service and as they were holding in the capacity of watan or inam, they were impartible. The trial court decreed the suit for partition in regard to watan land. In an appeal before the High Court of Bombay, the Division Bench of that Court held8 that when watan (inam) rights were abolished, all rights including the right of partition also stood abolished. A three-Judge Bench of the High Court of Bombay overruled9 the view in another case holding that in view of abolition of inam, the properties enure for enjoyment of the members of the family who are entitled to claim partition. This Court held: (Kalgonda Babgonda Patil case7, SCC p. 250, para 13)</div><div>“13. … These watan lands continued to be the hereditary property of the family although according to the custom the watan was only in the name of the senior member of the family and the succession according to the custom was in accordance with rule of primogeniture. … for the first time under this Act these watans were abolished and the lands were converted into ryotwari lands and therefore it became partible.”</div><div>13. The decisions in Kalgonda case7 and Nagesh Bisto Desai case10 were followed in Shivappa Tammannappa Karaban v. Parasappa Hanammappa Kuraban11. That was a case arising under the Karnataka Village Offices Abolition Act, 1961. Re-grant was made in that case in the name of the former holder of the village office as a watandar. This Court held that just because the grant was made in the name of watandar, did not mean that the properties ceased to be joint family properties.</div><div>14. In Lokraj v. Kishan Lal12 also this Court was dealing with abolition of inam under the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955. A suit for partition of the inam land was filed which was contested on the ground that abolition of the pre-existing right, title and interest of inamdar and grant of occupancy right to the occupant of the land disentitled anyone to claim a partition of such land. This Court while holding that the suit was not maintainable on account of abolition of pre-existing right, title and interest of the inamdar, observed: (SCC p. 293, para 4)</div><div>“4. Consequent to the abolition, the pre-existing right, title and interest of the inamdar or any person having occupation of the inam lands stood divested and vested the same in the State until re-grant is made. The inamdar, thereby lost the pre-existing right, title and interest in the land. The right to partition itself also has been lost by the statutory operation unless re-grant is made. We are not concerned with the consequences that would ensue after re-grant of this appeal. Therefore, it is not necessary for us to go into the question that may arise after the re-grant.”</div><div>15. It is evident from the above that the right of partition was held to have been lost by operation of law. Till such time the grant was made no such right could be recognised, observed this Court. This Court specifically held that it was not concerned with the consequences that would ensue after grant is made. The suit in the present case was filed after the grant of occupancy rights. The question here is whether the grant of such rights is for the benefit of one of the members of the joint family or for all the heirs left behind by Ramachandra Reddy. Our answer to that question is in favour of the appellants. In our opinion, the grant of such occupancy rights in favour of Respondent 1 was for the benefit of all the legal heirs left behind by Ramachandra Reddy. Reliance upon Lokraj case12, therefore, is of no assistance to the respondents. We are also of the view that the decision in Lokraj case12, does not correctly apply the earlier decision of this Court in Bhubaneshwar Prasad Narain Singh case6. With utmost respect to the Hon’ble Judges who delivered the decision in Lokraj case12, the law was not correctly laid down, if the same was meant to say that even in the absence of a plea of ouster, a co-heir could merely on the basis of grant of the occupancy rights in his name exclude the other co-heirs from partition of the property so granted.</div><div>4 1912 AC 230 (PC)</div><div>5 AIR 1957 SC 314</div><div>6 Bhubaneshwar Prasad Narain Singh v. Sidheswar Mukherjee, (1971) 1 SCC 556</div><div>7 Kalgonda Babgonda Patil v. Balgonda Kalgonda Patil, 1989 Supp (1) SCC 246</div><div>8 Kalgonda Babgonda Patil v. Balgonda Kalgonda Patil, (1976) 78 Bom LR 720</div><div>9 Laxmibai Sadashiv Date v. Ganesh Shankar Date, AIR 1977 Bom 350</div><div>10 Nagesh Bisto Desai v. Khando Tirmal Desai, (1982) 2 SCC 79</div><div>11 1995 Supp (1) SCC 162</div><div>12 Lokraj v. Kishan Lal, (1995) 3 SCC 291</div>', '9e8e0602b56c40f1e570b5ccaf1846d3.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-12', 1, '', '', '2020-12-02 21:17:44', '2021-01-21 23:37:15'),
(103, 'lrb3RMwkFQD9ydz30DbkrD17F', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Private Contract with Government Writ Jurisdiction- Scope explained.', '<div style=\"text-align: center;\"><b>Joshi Technologies International Inc. v. Union of India,&nbsp;</b></div><div style=\"text-align: center;\"><b>(2015) 7 SCC 728 (para 70).</b></div><div style=\"text-align: center;\"><b>Decided on 14 May 2015</b></div><div style=\"text-align: center;\"><b>Dr.A.K. Sikri-J</b></div><div style=\"text-align: center; \"><b>Rohinton nariman-J&nbsp;</b></div><div><br><p style=\"text-align: justify;\"></p><p><span style=\"font-size: 0.875rem;\">70. Further, the legal position which emerges from various judgments of this Court dealing with different situations/aspects relating to contracts entered into by the State/public authority with private parties, can be summarised as under:<br></span><span style=\"font-size: 0.875rem;\">70.1. At the stage of entering into a contract, the State acts purely in its executive capacity and is bound by the obligations of fairness.<br></span><span style=\"font-size: 0.875rem;\">70.2. State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practise some discriminations.<br></span><span style=\"font-size: 0.875rem;\">70.3. Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 of the Constitution could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases the Court can direct the aggrieved party to resort to alternate remedy of civil suit, etc.<br></span><span style=\"font-size: 0.875rem;\">70.4. Writ jurisdiction of the High Court under Article 226 of the Constitution was not intended to facilitate avoidance of obligation voluntarily incurred.<br></span><span style=\"font-size: 0.875rem;\">70.5. Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the licence if he finds it profitable to do so: and he can challenge the conditions under which he agreed to take the licence, if he finds it commercially inexpedient to conduct his business.<br></span><span style=\"font-size: 0.875rem;\">70.6. Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages.<br></span><span style=\"font-size: 0.875rem;\">70.7. Writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is denial of equality before law or equal protection of law or if it can be shown that action of the public authorities was without giving any hearing and violation of principles of natural justice after holding that action could not have been taken without observing principles of natural justice.<br></span><span style=\"font-size: 0.875rem;\">70.8. If the contract between private party and the State/instrumentality and/or agency of the State is under the realm of a private law and there is no element of public law, the normal course for the aggrieved party, is to invoke the remedies provided under ordinary civil law rather than approaching the High Court under Article 226 of the Constitution of India and invoking its extraordinary jurisdiction.<br></span><span style=\"font-size: 0.875rem;\">70.9. The distinction between public law and private law element in the contract with the State is getting blurred. However, it has not been totally obliterated and where the matter falls purely in private field of contract, this Court has maintained the position that writ petition is not maintainable. The dichotomy between public law and private law rights and remedies would depend on the factual matrix of each case and the distinction between the public law remedies and private law field, cannot be demarcated with precision. In fact, each case has to be examined, on its facts whether the contractual relations between the parties bear insignia of public element. Once on the facts of a particular case it is found that nature of the activity or controversy involves public law element, then the matter can be examined by the High Court in writ petitions under Article 226 of the Constitution of India to see whether action of the State and/or instrumentality or agency of the State is fair, just and equitable or that relevant factors are taken into consideration and irrelevant factors have not gone into the decision-making process or that the decision is not arbitrary.<br></span><span style=\"font-size: 0.875rem;\">70.10. Mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirements of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness.<br></span><span style=\"font-size: 0.875rem;\">70.11. The scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes.</span></p></div><div><p></p></div>', '979c17b0c8c12ab4d1af2b4c94fa3405.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-12', 1, '', '', '2020-12-02 21:18:18', '2021-01-21 23:34:41'),
(104, '7ikzjNwv3dq5DJqoBC6mzbgtx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Anticipatory bail – Guidelines of the Supreme Court', '<div style=\"text-align: justify; \"><b>Bhadresh Bipinbhai Sheth v. State of Gujarat, (2016) 1 SCC 152, at page 166&nbsp; :&nbsp;</b></div><div style=\"text-align: justify; \">25.1. The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.</div><div style=\"text-align: justify;\">25.2. The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.</div><div style=\"text-align: justify;\">25.3. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.</div><div style=\"text-align: justify;\">25.4. There is no justification for reading into Section 438 CrPC the limitations mentioned in Section 437 CrPC. The plenitude of Section 438 must be given its full play. There is no requirement that the accused must make out a “special case” for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.</div><div style=\"text-align: justify;\">25.5. The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor, the court may either reject the anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case.</div><div style=\"text-align: justify;\">25.6. It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time.</div><div style=\"text-align: justify;\">25.7. In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.</div><div style=\"text-align: justify;\">25.8. Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.</div><div style=\"text-align: justify;\">25.9. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of the anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case.</div><div style=\"text-align: justify;\">25.10. We shall also reproduce para 112 of the judgment in Siddharam Satlingappa case7, wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail:</div><div style=\"text-align: justify;\">(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;</div><div style=\"text-align: justify;\">(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;</div><div style=\"text-align: justify;\">(c) The possibility of the applicant to flee from justice;</div><div style=\"text-align: justify;\">(d) The possibility of the accused’s likelihood to repeat similar or other offences;</div><div style=\"text-align: justify;\">(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;</div><div style=\"text-align: justify;\">(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;</div><div style=\"text-align: justify;\">(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because over-implication in the cases is a matter of common knowledge and concern;</div><div style=\"text-align: justify;\">(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;</div><div style=\"text-align: justify;\">(i) The court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;</div><div style=\"text-align: justify;\">(j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.</div>', 'ea9e4b214f121b4cdfdb2d83b7741ee5.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 21:19:32', '2021-01-21 23:29:42');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(105, 'JNn3KZSZYquFMblPMUkXNQp3Y', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Post-dated cheques', '<div style=\"text-align: justify; \"><b>Post dated cheque is a well-recognised mode of payment. Proceedings under the Negotiable Instruments Act, held maintainable.&nbsp;</b></div><div style=\"text-align: justify; \"><b>Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd., (2016) 10 SCC 458&nbsp;</b><br></div><div style=\"text-align: justify; \"><br></div><div style=\"text-align: justify; \"><b>Paragraphs:</b></div><div style=\"text-align: justify;\">8. Reference may now be made to the decision of this Court in Indus Airways (P) Ltd. v. Magnum Aviation (P) Ltd.2, on which strong reliance has been placed by the learned counsel for the appellant. The question therein was whether post-dated cheque issued by way of advance payment for a purchase order could be considered for discharge of legally enforceable debt. The cheque was issued by way of advance payment for the purchase order but the purchase order was cancelled and payment of the cheque was stopped. This Court held that while the purchaser may be liable for breach of the contract, when a contract provides that the purchaser has to pay in advance and the cheque towards advance payment is dishonoured, it will not give rise to criminal liability under Section 138 of the Act. Issuance of cheque towards advance payment could not be considered as discharge of any subsisting liability. View to this effect of the Andhra Pradesh High Court in Swastik Coaters (P) Ltd. v. Deepak Bros.3, Madras High Court in Balaji Seafoods Exports (India) Ltd. v. Mac Industries Ltd.4, Gujarat High Court in Shanku Concretes (P) Ltd. v. State of Gujarat5 and Kerala High Court in Supply House v. Ullas6 was held to be correct view as against the view of the Delhi High Court in Magnum Aviation (P) Ltd. v. State7 and Mojj Engg. Systems Ltd. v. A.B. Sugars Ltd.8 which was disapproved.</div><div style=\"text-align: justify;\">9. We have given due consideration to the submission advanced on behalf of the appellant as well as the observations of this Court in Indus Airways2 with reference to the explanation to Section 138 of the Act and the expression “for discharge of any debt or other liability” occurring in Section 138 of the Act. We are of the view that the question whether a post-dated cheque is for “discharge of debt or liability” depends on the nature of the transaction. If on the date of the cheque, liability or debt exists or the amount has become legally recoverable, the section is attracted and not otherwise.</div><div style=\"text-align: justify;\">10. Reference to the facts of the present case clearly shows that though the word “security” is used in Clause 3.1(iii) of the agreement, the said expression refers to the cheques being towards repayment of instalments. The repayment becomes due under the agreement, the moment the loan is advanced and the instalment falls due. It is undisputed that the loan was duly disbursed on 28-2-2002 which was prior to the date of the cheques. Once the loan was disbursed and instalments have fallen due on the date of the cheque as per the agreement, dishonour of such cheques would fall under Section 138 of the Act. The cheques undoubtedly represent the outstanding liability.</div><div style=\"text-align: justify;\">11. The judgment in Indus Airways2 is clearly distinguishable. As already noted, it was held therein that liability arising out of claim for breach of contract under Section 138, which arises on account of dishonour of cheque issued was not by itself on a par with criminal liability towards discharge of acknowledged and admitted debt under a loan transaction. Dishonour of cheque issued for discharge of later liability is clearly covered by the statute in question. Admittedly, on the date of the cheque there was a debt/liability in praesenti in terms of the loan agreement, as against Indus Airways2 where the purchase order had been cancelled and cheque issued towards advance payment for the purchase order was dishonoured. In that case, it was found that the cheque had not been issued for discharge of liability but as advance for the purchase order which was cancelled. Keeping in mind this fine but real distinction, the said judgment cannot be applied to a case of present nature where the cheque was for repayment of loan instalment which had fallen due though such deposit of cheques towards repayment of instalments was also described as “security” in the loan agreement. In applying the judgment in Indus Airways2, one cannot lose sight of the difference between a transaction of purchase order which is cancelled and that of a loan transaction where loan has actually been advanced and its repayment is due on the date of the cheque.</div><div style=\"text-align: justify;\">12. The crucial question to determine applicability of Section 138 of the Act is whether the cheque represents discharge of existing enforceable debt or liability or whether it represents advance payment without there being subsisting debt or liability. While approving the views of the different High Courts noted earlier, this is the underlying principle as can be discerned from discussion of the said cases in the judgment of this Court.</div><div style=\"text-align: justify;\">13. In Balaji Seafoods4, the High Court noted that the cheque was not handed over with the intention of discharging the subsisting liability or debt. There is, thus, no similarity in the facts of that case simply because in that case also loan was advanced. It was noticed specifically therein, as was the admitted case of the parties, that the cheque was issued as “security” for the advance and was not intended to be in discharge of the liability, as in the present case.</div><div style=\"text-align: justify;\">14. In HMT Watches Ltd. v. M.A. Abida9, relied upon on behalf of the respondent, this Court dealt with the contention that the proceedings under Section 138 were liable to be quashed as the cheques were given as “security” as per defence of the accused. Negativing the contention, this Court held: (SCC pp. 779-80, paras 10-12)</div><div style=\"text-align: justify;\">“10. Having heard the learned counsel for the parties, we are of the view that the accused (Respondent 1) challenged the proceedings of criminal complaint cases before the High Court, taking factual defences. Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties. In our opinion, the High Court should not have expressed its view10 on the disputed questions of fact in a petition under Section 482 of the Code of Criminal Procedure, to come to a conclusion that the offence is not made out. The High Court has erred in law in going into the factual aspects of the matter which were not admitted between the parties. The High Court further erred in observing that Section 138(b) of the NI Act stood uncomplied with, even though Respondent 1 (accused) had admitted that he replied to the notice issued by the complainant. Also, the fact, as to whether the signatory of demand notice was authorised by the complainant company or not, could not have been examined by the High Court in its jurisdiction under Section 482 of the Code of Criminal Procedure when such plea was controverted by the complainant before it.</div><div style=\"text-align: justify;\">11. In Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd.11, this Court has made the following observations explaining the parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure: (SCC pp. 685-87, paras 17 &amp; 22)</div><div style=\"text-align: justify;\">‘17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of&nbsp; caution is also required in its exercise. What is required is application of the well-known legal principles involved in the matter.</div><div style=\"text-align: justify;\">22. Ordinarily, a defence of an accused although appears to be plausible, should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable.’</div><div style=\"text-align: justify;\">12. In Rallis India Ltd. v. Poduru Vidya Bhushan12, this Court expressed its views on this point as under: (SCC p. 93, para 12)</div><div style=\"text-align: justify;\">‘12. At the threshold, the High Court should not have interfered with the cognizance of the complaints having been taken by the trial court. The High Court could not have discharged the respondents of the said liability at the threshold. Unless the parties are given opportunity to lead evidence, it is not possible to come to a definite conclusion as to what was the date when the earlier partnership was dissolved and since what date the respondents ceased to be the partners of the firm.’”</div><div style=\"text-align: justify;\">15. We are in respectful agreement with the above observations. In the present case, reference to the complaint (a copy of which is Annexure P-7) shows that as per the case of the complainant, the cheques which were the subject-matter of the said complaint were towards the partial repayment of the dues under the loan agreement (Para 5 of the complaint).</div><div style=\"text-align: justify;\">16. As is clear from the above observations of this Court, it is well settled that while dealing with a quashing petition, the court has ordinarily to proceed on the basis of averments in the complaint. The defence of the accused cannot be considered at this stage. The court considering the prayer for quashing does not adjudicate upon a disputed question of fact.</div><div style=\"text-align: justify;\">17. In Rangappa v. Sri Mohan13, this Court held that once issuance of a cheque and signature thereon are admitted, presumption of a legally enforceable debt in favour of the holder of the cheque arises. It is for the accused to rebut the said presumption, though accused need not adduce his own evidence and can rely upon the material submitted by the complainant. However, mere statement of the accused may not be sufficient to rebut the said presumption. A post-dated cheque is a well-recognised mode of payment14.</div><div style=\"text-align: justify;\">18. Thus, the question has to be answered in favour of the respondent and against the appellant. Dishonour of cheque in the present case being for discharge of existing liability is covered by Section 138 of the Act, as rightly held by the High Court.</div><div style=\"text-align: justify;\">19. Accordingly, we do not find any merit in this appeal and the same is dismissed. Since we have only gone into the question whether on admitted facts, case for quashing has not been made out, the appellant will be at liberty to contest the matter in trial court in accordance with law.</div><div style=\"text-align: justify;\">———</div><div style=\"text-align: justify;\">† Arising out of SLP (Crl.) No. 5410 of 2014. From the Judgment and Order dated 8-5-2014 of the High Court of Delhi in WP (Crl.) No. 1170 of 2011</div><div style=\"text-align: justify;\">1 Sampelly Satanarayana Rao v. Indian Renewable Energy Development Agency Ltd., 2014 SCC OnLine Del 2932 : (2014) 212 DLT 689</div><div style=\"text-align: justify;\">2 Indus Airways (P) Ltd. v. Magnum Aviation (P) Ltd., (2014) 12 SCC 539 : (2014) 5 SCC (Civ) 138 : (2014) 6 SCC (Cri) 845</div><div style=\"text-align: justify;\">3 Swastik Coaters (P) Ltd. v. Deepak Bros., 1997 Cri LJ 1942 : 1996 SCC OnLine AP 1003</div><div style=\"text-align: justify;\">4 Balaji Seafoods Exports (India) Ltd. v. Mac Industries Ltd., (1999) 1 CTC 6 : 1998 SCC OnLine Mad 704</div><div style=\"text-align: justify;\">5 Shanku Concretes (P) Ltd. v. State of Gujarat, 2000 Cri LJ 1988 : 1999 SCC OnLine Guj 366</div><div style=\"text-align: justify;\">6 Supply House v. Ullas, 2006 Cri LJ 4330 : 2006 SCC OnLine Ker 533</div><div style=\"text-align: justify;\">7 Magnum Aviation (P) Ltd. v. State, (2010) 172 DLT 91 : (2010) 118 DRJ 505 : 2010 SCC OnLine Del 2910</div><div style=\"text-align: justify;\">8 Mojj Engg. Systems Ltd. v. A.B. Sugars Ltd., (2008) 154 DLT 579 : 2008 SCC OnLine Del 1117</div><div style=\"text-align: justify;\">9 HMT Watches Ltd. v. M.A. Abida, (2015) 11 SCC 776 : (2015) 4 SCC (Cri) 552</div><div style=\"text-align: justify;\">10 M.A. Abida v. HMT Watches Ltd., 2014 SCC OnLine Ker 3842 : (2014) 2 KLJ 40</div><div style=\"text-align: justify;\">11 Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd., (2008) 13 SCC 678 : (2009) 3 SCC (Cri) 824</div><div style=\"text-align: justify;\">12 Rallis India Ltd. v. Poduru Vidya Bhushan, (2011) 13 SCC 88 : (2012) 3 SCC (Civ) 269 : (2012) 1 SCC (Cri) 778</div><div style=\"text-align: justify;\">13 Rangappa v. Sri Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184</div><div style=\"text-align: justify;\">14 Goaplast (P) Ltd. v. Chico Ursula D’Souza, (2003) 3 SCC 232 : 2003 SCC (Cri) 603</div>', 'f1b4ecbb35521e4d3224385e31663299.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 21:20:51', '2021-01-21 23:28:49'),
(106, 'kBarPC1PxiIlgvJl8vmVbVKs7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Code of Criminal Procedure. Section 482', '<div><b>Quashing Criminal Proceedings. Mere breach of Agreement does not constitute fraud under Section 420 IPC. The intention to cheat must be present from the inception Criminal proceedings quashed. ARCI v. Nimra Cerglass Technics (P) Ltd., (2016) 1 SCC 348</b></div><div><div style=\"text-align: justify;\"><br></div><div style=\"font-weight: bold; text-align: justify;\"><b style=\"font-size: 0.875rem;\">Paragraphs:</b><span style=\"font-size: 0.875rem; font-weight: 400;\">&nbsp;</span></div><p style=\"text-align: justify;\"></p><p><span style=\"font-size: 0.875rem;\">13. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is, as to whether uncontroverted allegations as made in the complaint establish the offence. The High Court being superior court of the State should refrain from analysing the materials which are yet to be adduced and seen in their true perspective. The inherent jurisdiction of the High Court under Section 482 CrPC should not be exercised to stifle a legitimate prosecution. The power under Section 482 CrPC is to be used sparingly only in rare cases. In a catena of cases, this Court reiterated that the powers of quashing criminal proceedings should be exercised very sparingly and quashing a complaint in criminal proceedings would depend upon the facts and circumstances of each case. (Vide State of Haryana v. Bhajan Lal2, State of T.N. v. Thirukkural Perumal3 and CBI v. Ravi Shankar Srivastava4.)&nbsp;<br></span><span style=\"font-size: 0.875rem;\">14. In the light of the well-settled principles, it is to be seen whether the allegations made in the complaint filed against ARCI and its officers for the alleged failure to develop extruded ceramic honeycomb as per specifications disclose offences punishable under Sections 419 and 420 IPC. It is to be seen that whether the averments in the complaint make out a case to constitute an offence of cheating.&nbsp;<br></span><span style=\"font-size: 0.875rem;\">15. The essential ingredients to attract Section 420 IPC are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security; and (iii) mens rea of the accused at the time of making the inducement. The making of a false representation is one of the essential ingredients to constitute the offence of cheating under Section 420 IPC. In order to bring a case for the offence of cheating, it is not merely sufficient to prove that a false representation had been made, but, it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant.<br></span><span style=\"font-size: 0.875rem;\">16. The distinction between mere breach of contract and the cheating would depend upon the intention of the accused at the time of alleged inducement. If it is established that the intention of the accused was dishonest at the very time when he made a promise and entered into a transaction with the complainant to part with his property or money, then the liability is criminal and the accused is guilty of the offence of cheating. On the other hand, if all that is established is that a representation made by the accused has subsequently not been kept, criminal liability cannot be foisted on the accused and the only right which the complainant acquires is the remedy for breach of contract in a civil court. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction. In S.W. Palanitkar v. State of Bihar5, this Court held as under: (SCC p. 250, para 21)&nbsp;<br></span><span style=\"font-size: 0.875rem;\">“21. … In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.”</span><span style=\"font-size: 0.875rem;\">The above view in Palanitkar case5 was referred to and followed in Rashmi Jain v. State of U.P.6<br></span><span style=\"font-size: 0.875rem;\">17. Various clauses in the agreement indicate that the technology transfer agreement, 1999 was only experimental in nature and ARCI shall endeavour to achieve the performance as per the specifications. In the agreement, there was no commitment on the part of ARCI to provide extruded ceramic honeycombs as per expected specifications.&nbsp;<br></span><span style=\"font-size: 0.875rem;\">22. By an analysis of the terms and conditions of the agreement between the parties, the dispute between the parties appears to be purely of civil nature. It is a settled legal proposition that criminal liability should not be imposed in disputes of civil nature. In Anil Mahajan v. Bhor Industries Ltd.8, this Court held as under: (SCC p. 231, paras 6-7)<br></span><span style=\"font-size: 0.875rem;\">“6. … A distinction has to be kept in mind between mere breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of the transaction.</span><span style=\"font-size: 0.875rem;\">* * *<br></span><span style=\"font-size: 0.875rem;\">8. The substance of the complaint is to be seen. Mere use of the expression ‘cheating’ in the complaint is of no consequence. Except mention of the words ‘deceive’ and ‘cheat’ in the complaint filed before the Magistrate and ‘cheating’ in the complaint filed before the police, there is no averment about the deceit, cheating or fraudulent intention of the accused at the time of entering into MoU wherefrom it can be inferred that the accused had the intention to deceive the complainant to pay. … We need not go into the question of the difference of the amounts mentioned in the complaint which is much more than what is mentioned in the notice and also the defence of the accused and the stand taken in reply to notice because the complainant’s own case is that over rupees three crores was paid and for balance, the accused was giving reasons as above-noticed. The additional reason for not going into these aspects is that a civil suit is pending inter se the parties for the amounts in question.”<br></span><span style=\"font-size: 0.875rem;\">23. In Indian Oil Corpn. v. NEPC India Ltd.9, this Court observed that civil liability cannot be converted into criminal liability and held as under: (SCC pp. 748-49, paras 13-14)<br></span><span style=\"font-size: 0.875rem;\">“13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P.10 this Court observed: (SCC p. 643, para 8)<br></span><span style=\"font-size: 0.875rem;\">‘8. … It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.’<br></span><span style=\"font-size: 0.875rem;\">14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil&nbsp; law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may.”<br></span><span style=\"font-size: 0.875rem;\">24. The learned counsel for the respondent submitted that any defence to be taken by the appellants is to be raised only during the course of trial and is not to be raised in the initial stage of the prosecution. In support of his contention, the learned counsel placed reliance upon Trisuns Chemical Industry v. Rajesh Agarwal11, Rajesh Bajaj v. State (NCT of Delhi)12, P. Swaroopa Rani v. M. Hari Narayana13 and Iridium India Telecom Ltd. v. Motorola Inc.14 The learned counsel for the respondent further submitted that when the Magistrate has taken cognizance of an offence and the power of the High Court to interfere is only to a limited extent, the High Court cannot substitute its view for the summoning order passed by the Magistrate. In support of this contention, the learned counsel placed reliance upon the decisions of this Court in Fiona Shrikhande v. State of Maharashtra15, Bhushan Kumar v. State (NCT of Delhi)16 and Nagawwa v. Veeranna Shivalingappa Konjalgi17.<br></span><span style=\"font-size: 0.875rem;\">25. The above decisions reiterate the well-settled principles that while exercising inherent jurisdiction under Section 482 CrPC, it is not for the High Court to appreciate the evidence and its truthfulness or sufficiency inasmuch as it is the function of the trial court. The High Court’s inherent powers, be it, civil or criminal matters, is designed to achieve a salutary public purpose and that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. If the averments in the complaint do not constitute an offence, the Court would be justified in quashing the proceedings in the interest of justice.<br></span><span style=\"font-size: 0.875rem;\">28. In the result, the impugned order1 is set aside and this appeal is allowed. The criminal proceedings against Appellants 1 to 3 in CC No. 840 of 2008 on the file of the IInd Metropolitan Magistrate at Cyberabad, are quashed</span></p></div><div>1 Criminal Petition No. 7901 of 2008, decided on 17-3-2009 (AP)<br>2 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426<br>3 (1995) 2 SCC 449 : 1995 SCC (Cri) 387<br>4 (2006) 7 SCC 188 : (2006) 3 SCC (Cri) 233<br>5 (2002) 1 SCC 241 : 2002 SCC (Cri) 129<br>6 (2014) 13 SCC 553 : (2014) 5 SCC (Cri) 751<br>7 International Advanced Research Centre for Powder Metallurgy v. Nimra Cerglass Technics (P) Ltd., Arbitration Petition No. 78 of 2008, order dated 8-7-2008 (Del)<br>8 (2005) 10 SCC 228 : (2006) 1 SCC (Cri) 746<br>9 (2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188<br>10 (2000) 2 SCC 636 : 2000 SCC (Cri) 513<br>11 (1999) 8 SCC 686 : 2000 SCC (Cri) 47<br>12 (1999) 3 SCC 259 : 1999 SCC (Cri) 401<br>13 (2008) 5 SCC 765 : (2008) 3 SCC (Cri) 79<br>14 (2011) 1 SCC 74 : (2010) 3 SCC (Cri) 1201<br>15 (2013) 14 SCC 44 : (2014) 1 SCC (Cri) 715<br>16 (2012) 5 SCC 424 : (2012) 2 SCC (Cri) 872<br>17 (1976) 3 SCC 736 : 1976 SCC (Cri) 507<p></p></div><div><p></p><br><p></p></div>', '9206fad071af5ef92331d8959fd28c8a.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 21:23:23', '2021-01-21 23:13:47'),
(107, 'MppbtG3cd3pj2TBvrxCh1PTuQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Will', '<div>Earlier clause of the Will bequeathing the property absolutely shall prevail over the later clause in the same Will limiting the title to the same property. Earlier clause in the Will prevails over the later clause in the Will. </div><div>Madhuri Ghosh vs Debobrato Dutta & anr. </div><div>(2016) 10 SCC 805.</div>', '5cfad83dd8c80f3534c5883efeee73b0.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-19', 1, '', '', '2020-12-02 21:23:54', '2020-12-22 19:47:10');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(108, 't7oj3uDDtMynRTBA9QQtF1uQk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Private Unaided Educational Institutions and their Fundamental Rights. Judgment of the Supreme Court in TMA Pai case. ', '<h4 style=\"text-align: center; \"><br></h4><table class=\"table table-bordered\"><tbody><tr><td><h4 style=\"color: rgb(0, 0, 0); text-align: center;\"><span style=\"font-weight: bolder;\"><br></span></h4><h3 style=\"text-align: center;\"><font color=\"#000000\"><b>T.M.A. Pai Foundation v. State of Karnataka.</b></font><br></h3><h4 style=\"text-align: center;\"><font color=\"#000000\">Writ Petition 317 of 1993 and connected matters decided on October 31, 2002/November 25, 2002</font></h4><h4 style=\"text-align: center;\"><font color=\"#000000\">Reported in (2002) 8 SCC 481.</font></h4><h4 style=\"text-align: center;\"></h4><h4 style=\"text-align: center;\"><font color=\"#000000\">Chief Justice B.N. Kirpal, Justice G.B. Pattanaik, Justice V.N. Khare, Justice S. Rajendra Babu, Justice Syed Shah Mohmmed Quadri, Justice Ruma Pal, Justice S.N. Variava, Justice K.G. Balakrishnan, Justice P. Venkatarama Reddi, Justice Ashok Bhan and Justice Arijit Pasayat.</font></h4><h4 style=\"color: rgb(0, 0, 0); text-align: center;\"><span style=\"font-weight: bolder;\"><br></span></h4></td></tr></tbody></table><h4 style=\"text-align: center; \"><span style=\"background-color: rgb(255, 255, 0); font-size: 1.3125rem; text-align: left;\">Relevant paragraphs under the heading Private unaided non-minority educational institutions:</span><br></h4><h4>48. Private education is one of the most dynamic and fastest-growing segments of post-secondary education at the turn of the twenty-first century. A combination of unprecedented demand for access to higher education and the inability or unwillingness of the Government to provide the necessary support has brought private higher education to the forefront. Private institutions, with a long history in many countries, are expanding in scope and number, and are becoming increasingly important in parts of the world that relied almost entirely on the public sector.<br>49. Not only has demand overwhelmed the ability of the Governments to provide education, there has also been a significant change in the way that higher education is perceived. The idea of an academic degree as a “private good” that benefits the individual rather than a “public good” for society is now widely accepted. The logic of today\'s economics and an ideology of privatization have contributed to the resurgence of private higher education, and the establishing of private institutions where none or very few existed before.<br><span style=\"background-color: rgb(255, 255, 0);\"><b>50. The right to establish and administer broadly comprises the following rights:<br>(a) to admit students;<br>(b) to set up a reasonable fee structure;<br>(c) to constitute a governing body;<br>(d) to appoint staff (teaching and non-teaching); and<br>(e) to take action if there is dereliction of duty on the part of any employees.</b></span><br>51. A University Education Commission was appointed on 4-11-1948, having Dr S. Radhakrishnan as its Chairman and nine other renowned educationists as its members. The terms of reference, inter alia, included matters relating to means and objects of university education and research in India and maintenance of higher standards of teaching and examination in universities and colleges under their control. In the report submitted by this Commission, in paras 29 and 31, it referred to autonomy in education which reads as follows:<br>&nbsp;“University autonomy.—Freedom of individual development is the basis of democracy. Exclusive control of education by the State has been an important factor in facilitating the maintenance of totalitarian tyrannies. In such States institutions of higher learning controlled and managed by governmental agencies act like mercenaries, promote the political purposes of the State, make them acceptable to an increasing number of their population and supply them with the weapons they need. We must resist, in the interests of our own democracy, the trend towards the governmental domination of the educational process.<br>Higher education is, undoubtedly, an obligation of the State but State aid is not to be confused with State control over academic policies and practices. Intellectual progress demands the maintenance of the spirit of free inquiry. The pursuit and practice of truth regardless of consequences has been the ambition of universities. Their prayer is that of the dying Goethe: ‘More light’, or that of Ajax in the mist ‘Light, though I perish in the light.’<br>The respect in which the universities of Great Britain are held is due to the freedom from governmental interference which they enjoy constitutionally and actually. Our universities should be released from the control of politics.<br>Liberal education.—All education is expected to be liberal. It should free us from the shackles of ignorance, prejudice and unfounded belief. If we are incapable of achieving the good life, it is due to faults in our inward being, to the darkness in us. The process of education is the slow conquering of this darkness. To lead us from darkness to light, to free us from every kind of domination except that of reason, is the aim of education.”<br>52. There cannot be a better exposition than what has been observed by these renowned educationists with regard to autonomy in education. The aforesaid passage clearly shows that the governmental domination of the educational process must be resisted. Another pithy observation of the Commission was that State aid was not to be confused with State control over academic policies and practices. The observations referred to hereinabove clearly contemplate educational institutions soaring to great heights in pursuit of intellectual excellence and being free from unnecessary governmental controls.<br>53. With regard to the core components of the rights under Articles 19 and 26(a), it must be held that while the State has the right to prescribe qualifications necessary for admission, private unaided colleges have the right to admit students of their choice, subject to an objective and rational procedure of selection and the compliance with conditions, if any, requiring admission of a small percentage of students belonging to weaker sections of the society by granting them freeships or scholarships, if not granted by the Government. Furthermore, in setting up a reasonable fee structure, the element of profiteering is not as yet accepted in Indian conditions. The fee structure must take into consideration the need to generate funds to be utilized for the betterment and growth of the educational institution, the betterment of education in that institution and to provide facilities necessary for the benefit of the students. In any event, a private institution will have the right to constitute its own governing body, for which qualifications may be prescribed by the State or the university concerned. It will, however, be objectionable if the State retains the power to nominate specific individuals on governing bodies. Nomination by the State, which could be on a political basis, will be an inhibiting factor for private enterprise to embark upon the occupation of establishing and administering educational institutions. For the same reasons, nomination of teachers either directly by the department or through a service commission will be an unreasonable inroad and an unreasonable restriction on the autonomy of the private unaided educational institution.<br>54. The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions.<br>55. The Constitution recognizes the right of the individual or religious denomination, or a religious or linguistic minority to establish an educational institution. If aid or financial assistance is not sought, then such institution will be a private unaided institution. Although, in Unni Krishnan case [(1993) 1 SCC 645] the Court emphasized the important role played by private unaided institutions and the need for private funding, in the scheme that was framed, restrictions were placed on some of the important ingredients relating to the functioning of an educational institution. There can be no doubt that in seeking affiliation or recognition, the Board or the university or the affiliating or recognizing authority can lay down conditions consistent with the requirement to ensure the excellence of education. It can, for instance, indicate the quality of the teachers by prescribing the minimum qualifications that they must possess, and the courses of study and curricula. It can, for the same reasons, also stipulate the existence of infrastructure sufficient for its growth, as a prerequisite. But the essence of a private educational institution is the autonomy that the institution must have in its management and administration. There, necessarily, has to be a difference in the administration of private unaided institutions and the government-aided institutions. Whereas in the latter case, the Government will have greater say in the administration, including admissions and fixing of fees, in the case of private unaided institutions, maximum autonomy in the day-to-day administration has to be with the private unaided institutions. Bureaucratic or governmental interference in the administration of such an institution will undermine its independence. While an educational institution is not a business, in order to examine the degree of independence that can be given to a recognized educational institution, like any private entity that does not seek aid or assistance from the Government, and that exists by virtue of the funds generated by it, including its loans or borrowings, it is important to note that the essential ingredients of the management of the private institution include the recruiting students and staff, and the quantum of fee that is to be charged.<br>56. An educational institution is established for the purpose of imparting education of the type made available by the institution. Different courses of study are usually taught by teachers who have to be recruited as per qualifications that may be prescribed. It is no secret that better working conditions will attract better teachers. More amenities will ensure that better students seek admission to that institution. One cannot lose sight of the fact that providing good amenities to the students in the form of competent teaching faculty and other infrastructure costs money. It has, therefore, to be left to the institution, if it chooses not to seek any aid from the Government, to determine the scale of fee that it can charge from the students. One also cannot lose sight of the fact that we live in a competitive world today, where professional education is in demand. We have been given to understand that a large number of professional and other institutions have been started by private parties who do not seek any governmental aid. In a sense, a prospective student has various options open to him/her where, therefore, normally economic forces have a role to play. The decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the Government.<br>58. For admission into any professional institution, merit must play an important role. While it may not be normally possible to judge the merit of the applicant who seeks admission into a school, while seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a disadvantage by preferences shown to less meritorious but more influential applicants. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions.<br>59. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school-leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies.<br>60. Education is taught at different levels, from primary to professional. It is, therefore, obvious that government regulations for all levels or types of educational institutions cannot be identical; so also, the extent of control or regulation could be greater vis-à-vis aided institutions.<br>61. In the case of unaided private schools, maximum autonomy has to be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fees to be charged. At the school level, it is not possible to grant admissions on the basis of merit. It is no secret that the examination results at all levels of unaided private schools, notwithstanding the stringent regulations of the governmental authorities, are far superior to the results of the government-maintained schools. There is no compulsion on students to attend private schools. The rush for admission is occasioned by the standards maintained in such schools, and recognition of the fact that State-run schools do not provide the same standards of education. The State says that it has no funds to establish institutions at the same level of excellence as private schools. But by curtailing the income of such private schools, it disables those schools from affording the best facilities because of a lack of funds. If this lowering of standards from excellence to a level of mediocrity is to be avoided, the State has to provide the difference which, therefore, brings us back in a vicious circle to the original problem viz. the lack of State funds. The solution would appear to lie in the States not using their scanty resources to prop up institutions that are able to otherwise maintain themselves out of the fees charged, but in improving the facilities and infrastructure of State-run schools and in subsidizing the fees payable by the students there. It is in the interest of the general public that more good quality schools are established; autonomy and non-regulation of the school administration in the right of appointment, admission of the students and the fee to be charged will ensure that more such institutions are established. The fear that if a private school is allowed to charge fees commensurate with the fees affordable, the degrees would be “purchasable” is an unfounded one since the standards of education can be and are controllable through the regulations relating to recognition, affiliation and common final examinations.<br>62. There is a need for private enterprise in non-professional college education as well. At present, insufficient number of undergraduate colleges are being and have been established, one of the inhibiting factors being that there is a lack of autonomy due to government regulations. It will not be wrong to presume that the number of professional colleges is growing at a faster rate than the number of undergraduate and non-professional colleges. While it is desirable that there should be a sufficient number of professional colleges, it should also be possible for private unaided undergraduate colleges that are non-technical in nature to have maximum autonomy similar to a school.<br>63. It was submitted that for maintaining the excellence of education, it was important that the teaching faculty and the members of the staff of any educational institution performed their duties in the manner in which it is required to be done, according to the rules or instructions. There have been cases of misconduct having been committed by the teachers and other members of the staff. The grievance of the institution is that whenever disciplinary action is sought to be taken in relation to such misconduct, the rules that are normally framed by the Government or the university are clearly loaded against the management. It was submitted that in some cases, the rules require the prior permission of the governmental authorities before the initiation of the disciplinary proceeding, while in other cases, subsequent permission is required before the imposition of penalties in the case of proven misconduct. While emphasizing the need for an independent authority to adjudicate upon the grievance of the employee or the management in the event of some punishment being imposed, it was submitted that there should be no role for the Government or the university to play in relation to the imposition of any penalty on the employee.<br>64. An educational institution is established only for the purpose of imparting education to the students. In such an institution, it is necessary for all to maintain discipline and abide by the rules and regulations that have been lawfully framed. The teachers are like foster parents who are required to look after, cultivate and guide the students in their pursuit of education. The teachers and the institution exist for the students and not vice versa. Once this principle is kept in mind, it must follow that it becomes imperative for the teaching and other staff of an educational institution to perform their duties properly, and for the benefit of the students. Where allegations of misconduct are made, it is imperative that a disciplinary enquiry is conducted, and that a decision is taken. In the case of a private institution, the relationship between the management and the employees is contractual in nature. A teacher, if the contract so provides, can be proceeded against, and appropriate disciplinary action can be taken if the misconduct of the teacher is proved. Considering the nature of the duties and keeping the principle of natural justice in mind for the purposes of establishing misconduct and taking action thereon, it is imperative that a fair domestic enquiry is conducted. It is only on the basis of the result of the disciplinary enquiry that the management will be entitled to take appropriate action. We see no reason why the management of a private unaided educational institution should seek the consent or approval of any governmental authority before taking any such action. In the ordinary relationship of master and servant, governed by the terms of a contract of employment, anyone who is guilty of breach of the terms can be proceeded against and appropriate relief can be sought. Normally, the aggrieved party would approach a court of law and seek redress. In the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a civil court for the purpose of seeking redress is not in the interest of general education. Disputes between the management and the staff of educational institutions must be decided speedily, and without the excessive incurring of costs. It would, therefore, be appropriate that an Educational Tribunal be set up in each district in a State, to enable the aggrieved teacher to file an appeal, unless there already exists such an Educational Tribunal in a State — the object being that the teacher should not suffer through the substantial costs that arise because of the location of the Tribunal; if the tribunals are limited in number, they can hold circuit/camp sittings in different districts to achieve this objective. Till a specialized tribunal is set up, the right of filing the appeal would lie before the District Judge or Additional District Judge as notified by the Government. It will not be necessary for the institution to get prior permission or ex post facto approval of a governmental authority while taking disciplinary action against a teacher or any other employee. The State Government shall determine, in consultation with the High Court, the judicial forum in which an aggrieved teacher can file an appeal against the decision of the management concerning disciplinary action or termination of service.<br>65. The reputation of an educational institution is established by the quality of its faculty and students, and the educational and other facilities that the college has to offer. The private educational institutions have a personality of their own, and in order to maintain their atmosphere and traditions, it is but necessary that they must have the right to choose and select the students who can be admitted to their courses of studies. It is for this reason that in St. Stephen\'s College case [(1992) 1 SCC 558] this Court upheld the scheme whereby a cut-off percentage was fixed for admission, after which the students were interviewed and thereafter selected. While an educational institution cannot grant admission on its whims and fancies, and must follow some identifiable or reasonable methodology of admitting the students, any scheme, rule or regulation that does not give the institution the right to reject candidates who might otherwise be qualified according to, say, their performance in an entrance test, would be an unreasonable restriction under Article 19(6), though appropriate guidelines/modalities can be prescribed for holding the entrance test in a fair manner. Even when students are required to be selected on the basis of merit, the ultimate decision to grant admission to the students who have otherwise qualified for the grant of admission must be left with the educational institution concerned. However, when the institution rejects such students, such rejection must not be whimsical or for extraneous reasons.<br>66. In the case of private unaided educational institutions, the authority granting recognition or affiliation can certainly lay down conditions for the grant of recognition or affiliation; these conditions must pertain broadly to academic and educational matters and welfare of students and teachers ? but how the private unaided institutions are to run is a matter of administration to be taken care of by the management of those institutions.</h4><div><br></div>', '8d3a05b62ce941f51ca4a581888aa8d6.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-27', 1, '', '', '2020-12-02 21:24:30', '2021-02-27 17:45:21'),
(109, 'fx4pQEr3PpfcLVU7DiA4J0hnE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code - Provision of Order 18 rule 17 to recall and examine witness can NOT be invoked to fill up the lacunae in evidence already recorded. It can be invoked only to clear ambiguity. Supreme Court. ', '<h4><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ram Rati Vs Mange Ram Thr LRS and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">Civil Appeal 1684 of 2016 decided on February 23 2016.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Kurian Joseph and Justice Rohinton Fali Nariman.<o:p><br></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p><b><br></b></o:p></span></p><h4><b><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\">10. Order 18 CPC deals with hearing of the suit and examination of witnesses. By an amendment introduced thereunder with effect from 1-2-1977, Rule 17-A was introduced permitting production of evidence not previously known or which could not be produced despite due diligence. It appears, the amendment only caused unnecessary protraction of the litigation, and hence, the said provision was omitted by the Code of Civil Procedure (Amendment) Act, 1999 with effect from 1-7-2002. However, Rule 17 was retained which reads as follows:</span><br></b></h4><p><b><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\">“17. Court may recall and examine witness.—The court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the court thinks fit.”</span><br></b></p><b>11. The respondent filed the application under Rule 17 read with Section 151 CPC invoking the inherent powers of the court to make orders for the ends of justice or to prevent abuse of the process of the court. The basic purpose of Rule 17 is to enable the court to clarify any position or doubt, and the court may, either suo motu or on the request of any party, recall any witness at any stage in that regard. This power can be exercised at any stage of the suit. No doubt, once the court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the court. The power under Rule 17 cannot be stretched any further. The said power cannot be invoked to fill up omission in the evidence already led by a witness. It cannot also be used for the purpose of filling up a lacuna in the evidence. “No prejudice is caused to either party” is also not a permissible ground to invoke Rule 17. No doubt, it is a discretionary power of the court but to be used only sparingly, and in case, the court decides to invoke the provision, it should also see that the trial is not unnecessarily protracted on that ground.<br></b></h4><h4><b>12. In Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate2, this principle has been summarised at paras 25, 28 and 29: (SCC pp. 414-15)<br>“25. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said Rule is to enable the court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined.<br></b></h4><h4><b>28. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC.<br></b></h4><h4><b>29. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination.”<br></b></h4><h4><b>13. In K.K. Velusamy v. N. Palanisamy3, the principles enunciated in Vadiraj2 have been followed, holding at paras 9 and 10: (K.K. Velusamy case3, SCC pp. 281-82)<span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\">“9. Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. (Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate.)</span></b></h4><h4><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\"><b>10. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo motu, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.”</b></span></h4><h4><b>14. The rigour under Rule 17, however, does not affect the inherent powers of the court to pass the required orders for ends of justice to reopen the evidence for the purpose of further examination or cross-examination or even for production of fresh evidence. This power can also be exercised at any stage of the suit, even after closure of evidence. Thus, the inherent power is the only recourse, as held by this Court in K.K. Velusamy3 at para 11, which reads as follows: (SCC p. 282)<br>“11. There is no specific provision in the Code enabling the parties to reopen the evidence for the purpose of further examination-in-chief or cross-examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for the ends of justice&nbsp; or to prevent the abuse of the process of the court. In the absence of any provision providing for reopening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under Section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to reopen the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications.”<br></b></h4><h4><b>15. After surveying the various principles stated by this Court on Section 151 from 1961, in K.K. Velusamy3, they have been succinctly summarised as follows under para 12: (SCC pp. 282-83)<br>“(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognises the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is “right” and undo what is “wrong”, that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.<br>(b) As the provisions of the Code are not exhaustive, Section 151 recognises and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is coextensive with the need to exercise such power on the facts and circumstances.<br>(c) A court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or by necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or in a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.<br>(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the legislature.<br>(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and&nbsp; wisdom of the court, and in the facts and circumstances of the case. The absence of an express provision in the Code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.<br>(f) The power under Section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.”<br></b></h4><h4><b>1<span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\">6. Some good guidance on invocation of Section 151 CPC to reopen an evidence or production of fresh evidence is also available in K.K. Velusamy3. To quote para 14: (SCC p. 284)</span></b></h4><h4><b>“14. The amended provisions of the Code contemplate and expect a trial court to hear the arguments immediately after the completion of evidence and then proceed to judgment. Therefore, it was unnecessary to have an express provision for reopening the evidence to examine a fresh witness or for recalling any witness for further examination. But if there is a time gap between the completion of evidence and hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands on earlier, or some evidence in regard to the conduct or action of the other party comes into existence, the court may in exercise of its inherent power under Section 151 of the Code, permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose.”<br></b></h4><h4><b>17. Vadiraj and K.K. Velusamy have also found affirmation by this Court in Bagai Construction v. Gupta Building Material Store.<br></b></h4><h4><b>18. The settled legal position under Order 18 Rule 17 read with Section 151 CPC, being thus very clear, the impugned orders passed by the trial court as affirmed by the High Court to recall a witness at the instance of the respondent “for further elaboration on the left out points”, is wholly impermissible in law.</b><br></h4><p></p><p></p><p></p><p></p>', 'c63e25107ecaed31f1d2bbf7b0630634.jpeg', '085ae58ed488e248109fe52a547995a4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-08', 1, '', '', '2020-12-02 21:25:57', '2023-02-08 11:03:31'),
(110, 'jGuoVdL8DAhsJvIgTY3g41ilT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Order 23 Rule 1. Withdrawal of suit at the appellate stage. When not permissible.', '<h3>Withdrawal of suit at the appellate stage. When NOT permissible. </h3><h3>When a vested right is created in favour of the defendant in the suit by virtue of the decree, the suit cannot be withdrawn at the appellate stage so as to destroy the right. <br></h3><h3>Avenue Supermarkets Private Limited vs Nischint Bhalla and others. <br>(2016) 15 SCC 411.</h3>', 'b214bf6ca58535c8fe05a3588347b08b.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-29', 1, '', '', '2020-12-02 21:28:10', '2020-12-22 19:45:38'),
(111, '49ePqda5tmYarvVDh8yrP3Vp5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SARFAESI Act, 2002. Where the action of secured creditor is fraudulent or its claim is prima facie absurd, Civil Court jurisdiction can be invoked. Supreme Court. 8 April 2004', '<h6><b>Mardia Chemicals Ltd. v. Union of India</b></h6><p><b>Transfer Cases (C) 92-95 of 2002 decided on 8 April 2004</b></p><h6><b>Reported (2004) 4 SCC 311<br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs: </span><br>51. However, to a very limited extent jurisdiction of the civil court can also be invoked, where for example, the action of the secured creditor is alleged to be fraudulent or his claim may be so absurd and untenable which may not require any probe whatsoever or to say precisely to the extent the scope is permissible to bring an action in the civil court in the cases of English mortgages. We find such a scope having been recognized in the two decisions of the Madras High Court which have been relied upon heavily by the learned Attorney General as well appearing for the Union of India, namely, V. Narasimhachariar5, AIR at pp. 141 and 144, a judgment of the learned Single Judge where it is observed as follows in para 22: (AIR p. 143)<br>“22. The remedies of a mortgagor against the mortgagee who is acting in violation of the rights, duties and obligations are twofold in character. The mortgagor can come to the court before sale with an injunction for staying the sale if there are materials to show that the power of sale is being exercised in a fraudulent or improper manner contrary to the terms of the mortgage. But the pleadings in an action for restraining a sale by mortgagee must clearly disclose a fraud or irregularity on the basis of which relief is sought: Adams v. Scott11. I need not point out that this restraint on the exercise of the power of sale will be exercised by courts only under the limited circumstances mentioned above because otherwise to grant such an injunction would be to cancel one of the clauses of the deed to which both the parties had agreed and annul one of the chief securities on which persons advancing moneys on mortgages rely. (See Ghose, Rashbehary: Law of Mortgages, Vol. II, 4th Edn., p. 784.)”</b></h6><div><br></div>', '850d75a5d6ca37f3c1fce0906d0df9c2.JPG', 'cd8385c9f9b6e0c3a0d36119e72c129a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2004-04-08', 1, '', '', '2020-12-02 21:29:52', '2021-08-16 18:04:56'),
(112, '7ldsecieVx56D3xZ6OKNow5X0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration. Fraud. Requirements explained. Supreme Court. ', '<h3><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">Mere allegations of fraud not enough. When case of fraud is set up to wriggle out of arbitration agreement, the Court while dealing with an application under section 8 of the Act, must hold strict inquiry. Only when Court is satisfied that the allegations of fraud can be decided only by the civil court, then alone the application under section 8 should be rejected. (2016) 10 SCC 386.&nbsp;</span></div><i><br>A.Ayyaswamy vs Paramasivan</i></h3>', '381011841266396e691ac645ec8b1fc4.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-05', 1, '', '', '2020-12-02 21:31:20', '2021-01-21 22:43:13'),
(286, 'Iy3hIONUnlvNUWdvByjsU5Xjc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Money laundering. “Proceeds of Crime”. Prosecution can be launched even if the offender is not a party to the predicate offence or there being no conviction. Karnataka High Court.', '<p><b>Money laundering. “Proceeds of Crime”. Prosecution can be launched even if the offender is not a party to the predicate offence or there being no conviction. Karnataka High Court.<br>Katta Subramaniam Naidu vs Deputy Director, Directorate of Enforcement. Criminal Petition 5698/2019 decided on 14 December 2020.<br><br>Judgment Link:<br> <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354332/1/CRLP5698-19-14-12-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354332/1/CRLP5698-19-14-12-2020.pdf</a><br><br>Relevant Paragraphs:</b><br> <br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Case law discussed. 43. In the backdrop of the analysis made by the various High Courts in the country and the interpretation placed on the crucial terms and expressions found in the PML Act, let me now proceed to deal with the issues raised by the learned counsel appearing for petitioners. The first and foremost question that need to be answered is, whether in the context of the provisions of the PML Act, prosecution initiated against the petitioners under section 3 of the PML Act and the confiscation proceedings resorted by the respondent under sections 5 and 8 of the PML Act are based on expost facto law and hit by the prohibition contained under Article 20(1) of the Constitution of India?</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">44. Petitioners appear to have put forward the plea of post facto law on the premise that the acts constituting the offences alleged against them were perpetrated prior to the amendment of the schedule to the PML Act and therefore, the action initiated against them falls within the mischief of Article 20(1) of the Constitution of India. This contention, in my view,&nbsp; in the factual setting of the case, is totally misplaced and misconceived and appears to have been canvassed by misconstruing the provisions of sections 3, 2(1)(u) and the Schedule appended to the PML Act. No-doubt, it is true that the Schedule to the PML Act was amended by Act 21 of 2009 and&nbsp; the various offences specified therein came to be included therein with effect from 1.06.2009. Nonetheless, in the instant cases, as on the date of initiation of action against petitioners, be it under section 3 or under section 5 of the PML Act, these provisions were very much there in the statute book. As already stated above, in all the cases, the prosecution under section 3 of the PML Act and adjudication proceedings under section 5 of the PML Act have been initiated against the petitioners subsequent to 1.06.2009. Therefore, the contention urged by learned counsel appearing for the petitioners that the petitioners are sought to be prosecuted on the basis of ex post facto laws is factually incorrect.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">48. From the plain reading of section 3 read with section 2(1)(u) of the PML Act, it is clear that what is made punishable under section 3 is the activity connected with the proceeds of crime either by getting oneself involved in the process or activity connected thereto or directly or indirectly attempting to indulge or knowingly assist or knowingly be a party to the alleged activities and projecting it as untainted property, whereas the components of the offences under section 13 of the PC Act and Sections 120B, 419, 420 and other IPC offences are entirely different. The prosecution under section 3 of the PML Act, by no stretch of imagination, could be equated with the prosecution under section 13 of the PC Act or other offences specified in the Schedule namely IPC or other laws. They are distinct and separate offences. Prosecution under section 3 of PML Act is not based on the outcome of the trial of the offenders under section 13 of the PC Act. A reading of section 3 of PML Act in&nbsp; unamended form would clearly indicate that even without there being any conviction of the accused in a predicate offence and even if the offender under section 3 of the PML Act is not a party to the predicate offence, still the prosecution could be launched against him if the offender is found involved in any process or activity connected with the ‘proceeds of crime’.</span></div><i><br><b>Compiled by S. Basavaraj Advocate Daksha Legal.</b></i></p>', '67b5bb1ca5631123903ab2026e8337cb.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-14', 1, '', '', '2020-12-23 01:52:30', '2020-12-28 17:16:58');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(137, 'siTGhgMbXKINKDuNRaI2Q4ML1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Limitation Act. Section - Sufficient Cause. Courts have to apply the provision in a meaningful manner ', '<h4>Limitation Act. Section 5. ‘Sufficient Cause’. Order of dismissal from service deprives right to livelihood. Courts have to apply the provision in a meaningful manner to subserve ends of justice. Karnataka High Court.</h4><h4><br>Suresh H.L vs The Management Sarvodaya Vidhyavardhaka and another Writ Petition 46435/2017 (S-Dis) decided on 4 November.</h4><h4><br>Judgement link: </h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347715/1/WP46435-17-04-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347715/1/WP46435-17-04-11-2020.pdf</a></h4><p><span style=\"font-size: 1.3125rem;\"><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Relevant paragraphs:</b> 8. Condonation of delay is discretion of the Court. Sufficient cause depends on the facts of each case. Sufficient cause means adequate cause. The party who seeks conduction of delay shall demonstrate&nbsp; that&nbsp; there&nbsp; was no negligence, or there was no inactiveness&nbsp; on&nbsp; his part. The reasons for condonation of delay must be bonafide and reasonable. Sufficient case (sufficient cause) is to be given liberal interpretation to ensure that substantial justice is done. An order of dismissal from service will have far reaching civil consequences on the petitioner, as the order of dismissal virtually amounts to deprivation of right to livelihood. In that circumstances, the Tribunal has failed to exercise jurisdiction vested in it.</span></div></span></p><h4><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The&nbsp; Hon’ble&nbsp; Apex&nbsp; Court&nbsp; in&nbsp; the&nbsp; case&nbsp; of&nbsp; M/s.&nbsp; Katiji&nbsp; and others cited supra while considering Section 5 of the Limitation Act has held that “sufficient cause” employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the&nbsp; ends&nbsp; of&nbsp; justice.&nbsp; &nbsp; Further&nbsp; the&nbsp; Hon’ble&nbsp; Apex&nbsp; Court&nbsp; has observed that while condoning the delay liberal approach is to be adopted keeping in mind the following principles:-</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. Asagainst which when delay is condoned the&nbsp; highest that can happen is that a cause would be decided on merits after hearing the parties.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(3) ‘Every day’s delay must be explained’ does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common sense pragmatic manner.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(4) When substantial justice and technical considerations are pitted against each other, cause of substantial deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(6) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Judgments in G.&nbsp; &nbsp; RAME&nbsp; &nbsp;GOWDA&nbsp; &nbsp;AND&nbsp; &nbsp; OTHERS&nbsp; &nbsp; Vs.&nbsp; &nbsp; SPECIAL&nbsp; &nbsp; LAND ACQUISITION&nbsp; OFFICER,&nbsp; BANGALORE,&nbsp; reported&nbsp; in&nbsp; (1988)&nbsp; 2SCC 142 and N.BALAKRISHNANVs.M.KRISHNAMURTHY&nbsp; &nbsp;reported&nbsp; &nbsp;in&nbsp; &nbsp;(1998) 7 SCC 123 relied on.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">10. The&nbsp; cause&nbsp; stated by the petitioner in the facts and circumstances of the case would constitute sufficient cause to condone the delay of 60 days in filing the appeal. The Tribunal failed&nbsp; to&nbsp; exercise its discretion judiciously while considering the application filed under Section 5 of the Limitation Act.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Writ Petition allowed.</span></div><b><br>Compiled by S. Basavaraj and Sreekriti Taggarse, Daksha Legal.</b></h4>', '27652c7256d806cbbc826776731fd54c.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-04', 1, '', '', '2020-12-06 04:54:55', '2021-01-21 01:19:28'),
(138, '6QZBHAPhkvpheEORpUEtuxmtO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Grama Swaraj and Panchayat Raj Amendment Ordinance 2020 is retrospective ', '<h4 style=\"text-align: justify;\">Karnataka Grama Swaraj and Panchayat Raj (Amendment) Ordinance, 2020; and Karnataka Grama Swaraj and Panchayat Raj (Motion of No Confidence against Adhyaksha and Upadhyaksha of Zilla Panchayat) Rules, 2020 are retrospective in operation. Karnataka High Court.</h4><h4><br>Geetha Pandit Rao and another vs State of Karnataka and others. Writ Petition 7717/2020 &amp; Writ Petition 226494/2020 decided on 30 November 2020.</h4><h4><br><b>Judgment Link: </b></h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/350506/1/WP7717-20-30-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/350506/1/WP7717-20-30-11-2020.pdf</a></h4><p><br></p><h4><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Relevant Paragraphs</b>: (after thoroughly discussing case laws).&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">48. In order to ascertain correct position of law relating to interpretation of word “substitution”, it is relevant to consider the law declared by the Hon’ble Supreme Court in the case of VINEETA SHARMA (supra), wherein at paragraph 56 and 57 of the judgment, the Hon’ble Supreme Court, has held thus: “56. The prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backward and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier. Characteristic or event which happened in the past or requisites which had been drawn from antecedent events. Under the amended section 6, since the right is given by birth, that is an antecedent event, and the provisions operate concerning claiming rights on and from the date of Amendment Act.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">49. In view of the law declared by the Hon’ble Supreme Court with regard to ‘substitution’ in the case of VINEETA SHARMA (supra), the observation made by the Hon’ble Supreme Court in the case of SRI VIJAYALAKSHMI RICE MILLS and in the case of BHAGAT RAM (supra) are not applicable to the peculiar circumstances of these cases as the impugned amendment was procedural in nature and not substantive, as contended by the learned Senior Counsel appearing for the petitioners.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">52. The above discussion would persuade me to deduce and infer that, the interim of the respondent-State, while amending the impugned Act and Rule was to give effect retrospectively. The respondent-State was conscious of the nature and character of the object of the Act. I have also carefully observed that, the use of word ‘substituted’ in the amended Act and Rules would subserve and support the submission of the learned Counsel appearing for the respondents.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">54.After considering the judgments referred to above with regard to interpretation made to word ‘substitution’ and applying the same for the present case, which is procedural in nature, as the ‘vested rights’ or ‘accrued rights’ as contended by the learned counsel appearing for the petitioners, would begin from the date of their assumption of office as Member of the&nbsp; Zilla Panchayat and in that view of the matter, the contentions so advanced that the impugned amendment commences from the date of publication to the Act cannot be considered. In other words, the impugned amendment is retrospective in nature and not prospective.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">55. In view of the law declared by the Apex Court referred to above and considering the submissions made by the learned counsel appearing for the parties, as well as looking into the intent of the legislature which amending the Act, to give effect to democratic values enshrined under Constitution of India, I found that, no public interest is involved insofar as the petitioners are concerned and on the other hand, the factum of public interest lies in favour of the members sought for non-confidence motion against the petitioners, as it is trite law that, democratic principles are the basic pillars to the golden lines runs through the provisions of the Constitution of India.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">HELD: Ordinance 2 of 2020 dated 31st March, 2020 to Karnataka Grama Swaraj and Panchayat Raj (Amendment) Ordinance, 2020; and Karnataka Grama Swaraj and Panchayat Raj (Motion of No Confidence against Adhyaksha and Upadhyaksha of Zilla Panchayat) Rules, 2020</span></div><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4>', '249b15a995f0f2730f75bb3dc818a2c1.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-30', 1, '', '', '2020-12-06 04:59:10', '2021-01-21 01:17:29'),
(139, 'q4bdhokqmIY72YYPEmsfKtep9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Right of a major individual to marry person of his-her choice is a fundamental right. ', '<h3>Right of a major individual to marry person of his/her choice is a fundamental right which cannot be encroached by anybody irrespective of caste or religion. Karnataka High Court.</h3><h3><br>Judgment Link: </h3><h3><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/350505/1/WPHC92-20-27-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/350505/1/WPHC92-20-27-11-2020.pdf</a></h3><p><br></p><p><img src=\"https://dakshalegalhome.files.wordpress.com/2020/11/image-27.png?w=534\"></p><p><img src=\"https://dakshalegalhome.files.wordpress.com/2020/11/image-26.png?w=750\"><br></p>', '04ca7679a61410c40c62790fa0ae2176.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-27', 1, '', '', '2020-12-06 05:03:50', '2020-12-20 21:45:27'),
(140, 'lHFMTv01subJjM1qZsiwIpCQj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Power of granting ad interim injunction is to preserve the subject matter of the suit', '<h4>Civil Procedure Code. Order 39 Rules 1 &amp; 2. Power of granting ad interim injunction, is to preserve the subject matter of the suit in the status quo for the time being. Supreme Court. (Judgment enclosed)</h4><h4><br><b>Judgment Link:</b><br><a href=\"https://dakshalegalhome.files.wordpress.com/2020/11/1992-1-scc-719.pdf\" target=\"_blank\">https://dakshalegalhome.files.wordpress.com/2020/11/1992-1-scc-719.pdf</a></h4><h4><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant paragraph:&nbsp;</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">4. Order 39 Rule 1(c) provides that temporary injunction may be granted where, in any suit, it is proved by the affidavit or otherwise, that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing … or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the court thinks fit until the disposal of the suit or until further orders. Pursuant to the recommendation of the Law Commission clause (c) was brought on statute by Section 86(i)(b) of the Amending Act 104 of 1976 with effect from February 1, 1977. Earlier thereto there was no express power except the inherent power under Section 151 CPC to grant ad interim injunction against dispossession. Rule 1 primarily concerned with the preservation of the property in dispute till legal rights are adjudicated. Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. In other words, the court, on exercise of the power of granting ad interim injunction, is to preserve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the court’s interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it.</span></div></h4><h4><b style=\"font-size: 1.3125rem;\"><br>Compiled by S.Basavaraj, Advocate, Daksha Legal</b><br></h4><div><br></div>', '347073734cb5a813a7346cad3dd3995d.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-03', 1, '', '', '2020-12-06 05:07:57', '2021-01-21 00:31:27'),
(141, 'xhlZgWDekd3UGpbDWlvRDmIpC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Power of Attorney can be revoked by the principal unless GPA is coupled with interest. ', '<h3>Contract Act, 1872. Section 202. Power of Attorney can be revoked by the principal unless the agent’s authority is coupled with interest. Supreme Court. (Judgment enclosed)</h3><p><span style=\"font-size: 24.5px; text-align: justify;\"><b><br>Judgment Link:</b>&nbsp;<br></span><a href=\"https://dakshalegalhome.files.wordpress.com/2020/11/1989-4-scc-603.pdf\" target=\"_blank\" style=\"font-size: 1.53125rem; background-color: rgb(255, 255, 255);\">https://dakshalegalhome.files.wordpress.com/2020/11/1989-4-scc-603.pdf</a><br></p><h3><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\"><b>RELEVANT PARAGRAPH:&nbsp;</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">13. Even otherwise, under law revocation of agency by the principal immediately terminates the agent’s actual authority to act for the principal unless the agent’s authority is coupled with an interest as envisaged under Section 202 of the Indian Contract Act. When agency is revoked, the agent could claim compensation if his case falls under Section 205 or could exercise a lien on the principal’s property under Section 221. The agent’s lien on principal’s property recognised under Section 221 could be exercised only when there is no agreement inconsistent with the lien. In the present case the terms of the agreement by which the respondent was appointed as agent, expressly authorises the company to occupy the godown upon revocation of agency. Secondly, the lien in any event, in our opinion, cannot be utilised or taken advantage of to interfere with principal’s business activities.</span></div><br><b>Compiled by S.Basavaraj, Advocate, Daksha Legal</b></h3>', 'f7ab556144edeb213874d2ba36f24290.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-05', 1, '', '', '2020-12-06 05:17:40', '2021-01-21 00:34:13'),
(143, 'mPhz4cLUJ65Xkk7z6FHjjUuPb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicle Act. Fraudulent. Tribunal is not bound by charge-sheet filed in criminal cases. ', '<h4>Motor Vehicle Act. Fraudulent implanting of insured vehicles. Tribunal is not bound by charge-sheet filed in criminal cases. Tribunal has to decide based on evidence when prima facie fraud is alleged. Karnataka High Court.</h4><h4><br>Mahadevi and others vs Shivaputra and another. Miscellaneous First Appeal 201689/2016 (MV) decided on 20 November 2020.</h4><h4><br>Judgment Link: </h4><h4>http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349819/1/MFA201689-16-20-11-2020.pdf</h4><h4><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The Karnataka High Court has expressed deep concern and anguish over the increasing cases where insured vehicles are implanted just to get compensation. In many vehicular accidents, the actual vehicle that caused accident lacks insurance policy. Many cases involve ‘hit and run’ accidents. In such cases, the “unscrupulous nexus” stages false scenario in implanting a “proxy” vehicle which is covered by insurance policy. The present case is a classic example of a clear fraud. After 103 days of the accident, brother of the deceased produces his own insured vehicle insinuating its involvement in the accident!</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The Court noticed the earlier judgment in Sumangala and others vs Virupakshi and another MFA 30219/2011 decided on 15 June 2011. The fervent plea of the insurance company in the said case, questioning involvement of the insured vehicle as shown in the final report, was brushed aside by observing that ‘if there was any shady material which creates suspicion about the credibility of the final report, the proper course for the insurer should have been to apply to the higher authorities to get the matter investigated or at least should have challenged the final report seeking a writ of mandamus for reinvestigation”. However, the High Court in Mahadev’s case observed as follows; “”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“‘We have, with great respect, perused the entire judgment. From a perusal of the same, we do not find any law laid down in the said judgment of universal application that in all cases where charge sheets were filed, unless Insurance Company challenges the same and obtains writ of mandamus, MACTs are required to act upon the same and proceed to come to a conclusion that the vehicles named as offending vehicles in the charge sheet, without any further proof, are to be taken as the motor vehicles involved in causing the accident, even in cases where evidence produced points to the contrary.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">‘Further, we find that in the said judgment, there is no discussion of the relevant provisions of Code of Criminal Procedure or other cognate provisions of law under which the police authorities would investigate and file charge sheets and on the probative value of the charge sheets vis-a-vis the involvement of a motor vehicle in causing the accident before the Tribunals trying the compensation cases. Experience of the recent past shows that instances of fraudulent/collusive involvement of motor vehicles duly covered by insurance policy in accident cases are burgeoning and if the insurance companies are saddled with the burden of challenging the charge sheets filed throughout the country without there being no clear legal mandate to do so, their work would be seriously crippled and they would not be able to do their insurance business without enhancing the premium, thereby further burdening the ever suffering owners of motor vehicles. Even the most liberal reading the provisions of the Motor Vehicles Act, 1988 does not spell out such a requirement.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The question is one of fundamental importance – what is the standard of proof applicable in these proceedings? On whom is the initial burden of proving the accident or, as in this case, involvement of the offending motor vehicle cast? Is not still the standard of proof one of “preponderance of probabilities”? Is a mere charge’ sheet, which in this case is shown to be deficient in truth sufficient to tip the balance only on the premise that insurance company has not dipped deep into its pockets to challenge the charge sheet- what with the toxic nexus between the black sheep among the police, medical professionals and touts of every kind masquerading the field which has become a notorious fact of life. We are afraid, we would be muddling the field further for the already befuddled members of MACT by accepting the arguments of learned counsel for the appellants on this aspect’.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">NOTE: Fraud is a ground to question any administrative orders, quasi-judicial and even judicial verdicts. Lord Denning in one of his most celebrated judgments in Lazarus Estates Ltd v Beasley [1956] 1 Q.B. 702; [1956] 2 W.L.R. 502 held “No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever…”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The decision of the High Court has armed the Tribunals to independently assess involvement of insured vehicles when fraud is alleged and prima facie shown. The Tribunals are no longer shackled by the chargesheets filed in criminal cases.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">A path-breaking judgment in the direction of saving insurance companies from succumbing in the web of conspiracy, deceit and fraud.</span></div><b><br>Compiled and written by S. Basavaraj, Advocate, Daksha Legal.</b></h4>', '9f1d93b99a81035ded479693bc213aee.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-20', 1, '', '', '2020-12-06 05:42:37', '2021-01-21 00:03:44');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(144, 'OJqAFPmjDo2y5fncIa5T3t8Ud', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Alternative remedy is only a self imposed restraint and not a bar especially when the State act smacks of arbitrariness and legal malice', '<h4><br>Constitution of India. Article 226. Alternative remedy is only a self-imposed restraint and not a bar especially when the State act smacks of arbitrariness and legal malice. Law on the point discussed. Bombay High Court.</h4><h4><br>Kangana Ranaut vs Municipal Corporation of Greater) Mumbai and others. Writ Petition (ST) 3011/2020 decided on 27 November 2020. </h4><h4>Judgment</h4><h4><br><a href=\"https://dakshalegalhome.files.wordpress.com/2020/11/kangana_ranaut_v__state.pdf\" target=\"_blank\">https://dakshalegalhome.files.wordpress.com/2020/11/kangana_ranaut_v__state.pdf</a><a href=\"https://dakshalegalhome.files.wordpress.com/2020/11/kangana_ranaut_v__state.pdf\" target=\"_blank\"></a></h4><p><br></p><p><img src=\"https://dakshalegalhome.files.wordpress.com/2020/11/image-15.png?w=795\"><img src=\"data:image/png;base64, ', 'b09107a60cc54854c49eca60b6aaa6e2.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-27', 1, '', '', '2020-12-06 05:51:41', '2020-12-07 02:28:05');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(489, 'UjB6aOL7LJxMojN8JWslKZ1PB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A.K. Gopalan vs State of Madras', '<h4><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\">IN THE SUPREME COURT OF INDIA</span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\">A.K. Gopalan vs State of Madras</span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\">Petition No. 13 of 1950, decided on May 19, 1950</span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\">Chief Justice Hiralal Kania, Justice Sayid Fazl Ali, Justice M Patanjali Sastri, Justice Meher Chand Mahajan, Justice B K Mukherejea, Justice S R Das.</span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\">Reported in 1950 SCR 88: AIR 1950 SC 27</span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\">(1950) 51 Cri LJ 1383 </span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 0);\">Please see the pdf document&nbsp;</span></div></h4>', '28ba829037a5220886f5d329773fb04f.PNG', '0ca6184acb023a0cd4957cbdee5ae9a4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1950-05-19', 1, '', '', '2021-02-20 20:58:50', '2021-02-20 20:58:50'),
(490, 'CGbs69B6CA2S1zgnygMPQi0ki', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'IPC. Section 499. Mere use of words Boli Magane Soole Magane  by themselves do not constitute offence  unless imputations were made with the intention of undermining the reputation of the complainant. Karnataka High Court. ', '<h4 style=\"margin: 2pt 0cm 0.0001pt; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><i style=\"background-color: rgb(255, 255, 0);\">Full Judgment below</i></h4><table class=\"table table-bordered\"><tbody><tr><td><p><br></p><h2 style=\"text-align: center; margin: 2pt 0cm 0.0001pt; line-height: 18pt; text-indent: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><font color=\"#000000\" face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\">IN THE HIGH COURT OF KARNATAKA&nbsp;<br></span></font><font color=\"#000000\" face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\">Jayappa vs Shamegowda*<br></span></font><font color=\"#000000\" face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\">Crl. Appeal No. 391 of 1983<br></span></font><font color=\"#000000\" face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\">Decided on January 11, 1983<br></span></font><font color=\"#000000\" face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\">Justice M.S. Patil and Justice M. Ramakrishna<br></span></font><font color=\"#000000\" face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\">Reported in 1983 SCC OnLine Kar 6: ILR 1985 Kar 680 at page 681</span></font></b></h2></td></tr></tbody></table><h4 style=\"margin: 2pt 0cm 0.0001pt; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\"><b><br></b></span></font><b style=\"font-size: 16.6667px; font-family: \" open=\"\" sans\",=\"\" serif;=\"\" text-indent:=\"\" 18pt;\"=\"\">Justice M.S. Patil - These two appeals by special leave are directed against the judgment and order of acquittal dated 22-8-1983 passed by the Additional J.M.F.C. Tarikere, in C.C. No. 666 and 667 of 1982, respectively, whereby the Magistrate has acquitted the accused of the charge of the offence punishable under Section 500 IPC.</b><font face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\"><b><br></b></span></font></h4><h4 style=\"margin: 2pt 0cm 0.0001pt; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\"><b>2. The appellant L.S. Jayappa being a resident of Lakkavalli in Tarikere Taluk of Chikmagalur District is a licensed money lender. Accused N.S. Shamegowda and Jayashankar are father and son and residents of Kenchikoppa village. In the year 1978, Jayappa had advanced a sum of Rs. 2000/- as loan to Shamegowda. When he failed to repay the amount borrowed, Jayappa brought Small Cause Suit No. 61/81 against him and obtained a decree and filed Execution Petition No. 12/81 and got arrested Shamegowda. But, on his undertaking to pay the amount on the next day, he was released. Thereafter, on 10-8-82, at about 12 noon, when Jayappa was standing on the pial outside his house, the accused, father and son, went upto his house and abused him saying “SOOLE MAGANE COURTININDA NINAGE KODABEKADA HANAVANNU WARRANT TARISI VASOOLI MADIDDIYA BOLI MAGANE……..”, as a result there was lot of commotion. 10 to 12 people also collected there. The P.S.I. also went there, dispersed the people. On the complaint given by him (complainant), the P.S.I. also prosecuted the two accused persons, both father and the son, for the offence punishable under Section 92(O) of the Karnataka Police Act. It is not disputed both the accused were tried of the said offence in C.C. 445/82 and on their pleading guilty they were also released on due admonition.</b></span></font></h4><h4 style=\"margin: 2pt 0cm 0.0001pt; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\"><b>3. Since according to the complainant - Jayappa, the abusive words “SOOLE MAGANE-BOLI MAGANE” were not only defamatory, but he was also much pained due to the abusive words used by the accused and the accused were guilty of the offence punishable under Section 500 IPC, he filed a complaint before the Magistrate. The learned Magistrate, after taking cognizance of the offence alleged proceeded with the trial and on the basis of the evidence before him and having regard to the fact that the accused had also pleaded guilty in the other criminal case instituted against them thought the accused had so abused the complainant Jayappa. But, he however concluded that such abusive words “SOOLE MAGANE - BOLI MAGANE” are commonly used by the villagers and, therefore, they could neither be regarded as defamatory nor they were used with such intention to defame him (complainant). In that view, he having acquitted the two accused-Respondents in these appeals, the complainant Jayappa has filed this appeal.</b></span></font></h4><h4 style=\"margin: 2pt 0cm 0.0001pt; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\"><b>4. Mr. Kadidal Manjappa, learned Counsel appearing for the appellant, vehemently argued not only the abusive words used by the accused were per se defamatory, but having regard to the background under which the accused went upto the house of the complainant Jayappa and abused him showed their intention was to defame and bring him in disrepute and the learned Magistrate was not justified in acquitting the accused. In support of his contention, he also placed reliance on some decisions of this Court as also decisions of other High Courts.</b></span></font></h4><h4 style=\"margin: 2pt 0cm 0.0001pt; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\"><b>5. Mr. Ravivarma Kumar, learned Counsel appearing for the respondents, on the other hand, argued supporting the order of acquittal passed by the Magistrate that apart from the fact that the say of the complainant the two accused had abused him using particular abusive words, as stated by him in the complaint and sworn to by him in his evidence, appears to be artificial in as much as they could not be expected to use the same abusive words simultaneously in a chorus; however vituperative the words used, the abuses by themselves cannot constitute an offence of defamation unless it is proved that the accused used those abusive words with such intention of defaming the person abused. In support of his contention, he also placed reliance on some decisions.</b></span></font></h4><h4 style=\"margin: 2pt 0cm 0.0001pt; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\"><b>‘Defamation’ as defined under Section 499 IPC means—</b></span></font></h4><h4 style=\"margin: 2pt 0cm 0.0001pt; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\"><b>“Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.”</b></span></font></h4><h4 style=\"margin: 2pt 0cm 0.0001pt; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\"><b>There are various exceptions provided, but we are not concerned with any of those exceptions here in as much as the accused have not raised any such defence bringing their case under any of the exceptions provided. However, Explanation-1 under Section 499 IPC which is relevant here reads:</b></span></font></h4><h4 style=\"margin: 2pt 0cm 0.0001pt; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\"><b>“It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.”</b></span></font></h4><h4 style=\"margin: 2pt 0cm 0.0001pt; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\"><b>From this it also follows that any imputation of bad character to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to hurt the feeling of his family or other near relatives, is defamation within the meaning of Section 499. The essence of the offence of defamation consists in its tendency to cause that description of pain which is felt by a person who knows himself to be the object of the unfavourable sentiments of his fellow creatures and those inconveniences to which a person who is the object of such unfavourable sentiments is exposed. It is not necessary that actual harm should be caused. It is sufficient if harm to the reputation of the person to whom the imputation is directed was intended. Thus, before a person is found guilty of the offence of defamation punishable under Section 500 IPC, not only the prosecution has to prove the imputations, verbal or written, made by the accused, but it also has to prove that the accused made such defamatory imputations with intention of defaming, ridiculing or undermining the reputation of the person complaining of the defamation. Although the words like “SOOLE MAGANE - BOLI MAGANE” said to have been used by the respondents-accused are grave and serious imputations in as much as they have tendency of suggesting either illegitimacy of the complainant or unchastity to the mother of the complainant, that is to say, his mother was merely a mistress of the father of the complainant and not married to him, but to say that they are per se defamatory sufficient to constitute an offence of defamation punishable under Section 500 IPC, it appears, cannot be sustained, unless it is proved that the accused intended to convey, by so publishing or publicly abusing, so as to make all others to believe literally that the complainant or his mother was so. The background and the circumstances under which such imputations were made are relevant to arrive at a conclusion whether the imputations were intended to be literally conveyed or they were only hurled as abuses. There must be something more than mere abuses from which it could be possible to infer that the imputations were made with such intention of defaming directly or indirectly the person complaining of. In the absence of any such proof or material, however, vituperative the abuses may be, the abuses by themselves may not be sufficient to constitute an offence of defamation punishable under Section 500 IPC.</b></span></font></h4><h4 style=\"margin: 2pt 0cm 0.0001pt; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\"><b>6. In the case of K.S. Nanjundaiah v. S.C. Thippanna [AIR 1952 Mysore 123.] relied upon by Mr. Kadidal Manjappa, learned Counsel appearing for the complainant-appellant, where the expression “black-marketeer” was used by the accused in relation to the complainant in a public gathering which was presided over by a Government Officer and in which besides the parties to the proceeding a large number of respectable persons of the locality were present, the expressions were held to be per se defamatory. There the circumstances proved were such as to show that the accused intended to harm the reputation of the complainant.</b></span></font></h4><h4 style=\"margin: 2pt 0cm 0.0001pt; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\"><b>In the case of Ramdhara v. Phulvatibai [1970 Crl. L.J. 286.] , where the defendant had abused the complainant in filthy language saying “Rand-Chhinal” in addition to saying she was in keeping of one Jagatram, it was held: It is of the essence of defamation that the words tend to be injurious to a person\'s character or reputation. The standard to be applied in determining whether a statement is defamatory or not is that of right-minded citizen, a man of fair average intelligence, and not that of a special class of persons whose values are not shared or approved by fair-minded members of the society generally. An imputation is defamatory, if it exposes one to disgrace and humiliation, ridicule or contempt. Proceeding further, it was observed:</b></span></font></h4><h4 style=\"margin: 2pt 0cm 0.0001pt; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\"><b>“In the present case, if the defendants had merely littered the word “chhinal”, I would have held that the word did not convey its literal meaning, that is, a woman of easy virtue, but was only a vulgar abuse, which is not uncommon in villages when women quarrel among themselves. Mere vulgar abuse, which does not tend to lower a person addressed in the estimation of others or to bring him into obloquy, contempt or ridicule, does not amount to defamation. In such a case, the abuse is uttered merely to put an affront upon the feeling of the person abused, or as an insult to his dignity or self-respect without other persons knowing of it or without producing such an impression in their mind as its natural meaning would convey. But where words are uttered in circumstances tending to lower the person addressed in the estimation of the people present and to bring him into ridicule or contempt, they will constitute defamation and will be actionable.”</b></span></font></h4><h4 style=\"margin: 2pt 0cm 0.0001pt; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\"><b>It is thus clear that there was a definite imputation upon the plaintiff\'s chastity in that case.</b></span></font></h4><h4 style=\"margin: 2pt 0cm 0.0001pt; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\"><b>In the case of K. Kanhai Singh v. R. Bhaskar Singh [AIR 1964 Manipur 20.] where one minor M.K. Sharangajit Singh alias Shivaji Singh and another M.K. Tutendrajit Singh were described as illegitimate half-brothers in the application made under the Guardians and Wards Act for appointment of guardian of the property of Maharaja, there being definite imputation of illegitimacy, it was held that the description of a person as illegitimate is a serious imputation to make and such an imputation affecting the reputation of the person against whom it is made, in as much as it means that the mother of the person, with reference to whom it is made was only a mistress of the person\'s father and not his married wife and it also affects the reputation of the mother of the person and the mother\'s father and the imputation harmed the reputation of the half-brothers and their mother amounting to an offence under Section 500 IPC.</b></span></font></h4><h4 style=\"margin: 2pt 0cm 0.0001pt; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\"><b>In the case of Dhruba Charan v. Dinabandhu [AIR 1966 Orissa 15.] , where the accused, who was the President of Grain Gola Co-operative Society, while presiding over a meeting, during the course of the discussion, abused the complainant who was the Sarpanch of the Grampanchayat Committee as “Sala — Chora” it was held, in the circumstances in which the abuses were hurled by a responsible person like the accused, he must have intended to defame or at least must be taken to have known that such defamatory words would necessarily injure the reputation of the complainant and lower his position in the estimation of others and as such constitute an offence punishable under Section 500 IPC. The circumstances under which the abusive words used were clear indication there, of the intention of the accused in making the imputations. In the case on hand, although there is no doubt the accused having gone upto the house of the complainant Jayappa had started abusing him in filthy words, but the way in which they were questioning the complainant abusing at the same time, about his conduct in taking warrants for the arrest in execution of the decree, showed that they were merely giving vent to their displeasure and anger by so abusing. Therefore, merely because that led to commotion, people gathered and the people also did not relish it, is no reason to hold that the accused by so abusing intended to defame the complainant or they did do so with the knowledge that they would thereby bring the complainant to disrepute, or they literally intended to convey that the complainant was illegitimate or his mother was merely a kept mistress and not married wife of the complainant\'s father.</b></span></font></h4><h4 style=\"margin: 2pt 0cm 0.0001pt; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\"><b>In the case of Jagannath Misra v. Ram Chandra Deo [AIR (32) 1945 Patna 450.] where the accused adopted a loud and insolent tone and was anxious that his remarks should b&nbsp;</b></span></font><b style=\"text-indent: 18pt; font-size: 16.6667px; font-family: \" open=\"\" sans\",=\"\" serif;\"=\"\">e heard, and cried out loudly that the complainant was not only a liar but was un-gentlemanly, barbarous and tyrannical, it was held that there was clear intention to insult the complainant. The accused ought to have known that the insult would be likely to lead to a breach of the public peace, which was avoided owing to the most commendable behaviour of the zamindar-complainant. The words used were not intended to be defamatory but amounts to insult.</b></h4><h4 style=\"margin: 2pt 0cm 0.0001pt; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Open Sans, serif\"><span style=\"font-size: 16.6667px;\"><b>In our considered view, therefore, the Magistrate was justified in acquitting the accused. The appeals therefore fail and they are accordingly dismissed.</b></span></font></h4><h4 style=\"margin: 2pt 0cm 0.0001pt; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><br></h4><p>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n</p>', '5e4545f4e277e3939585e9afb7950a1b.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1983-01-11', 1, '', '', '2021-02-22 01:50:28', '2021-02-22 01:54:34'),
(491, 'zKtPpZ0PHEaHOow6mDOR3sJZN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Rejection of plaint. Suit for cancellation of sale deed on the ground that full sale consideration had not been paid. Suit NOT maintainable. Plaint liable to be rejected. Supreme Court', '<h4>Dahiben vs Arvindbhai Kalyanji Bhnusali<br>Civil Appeal 9519/2010<br>Decided on 9 July 2020<br>Justice L.Nageswara Rao<br>Justice Indu Malhotra<br>Judgment link: <a href=\"https://main.sci.gov.in/supremecourt/2017/9337/9337_2017_34_1501_22768_Judgement_09-Jul-2020.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2017/9337/9337_2017_34_1501_22768_Judgement_09-Jul-2020.pdf</a><br>Held: 15.3 The Plaintiffs have made out a case of alleged nonpayment of a part of the sale consideration in the Plaint, and prayed for the relief of cancellation of the Sale Deed on this ground. Section 54 of the Transfer of Property Act, 1882 provides as under:<br>“54. ‘Sale’ defined.—‘Sale’ is a transfer of ownership in exchange for a price paid or promised or part-paid and partpromised.”<br>The definition of “sale” indicates that there must be a transfer of ownership from one person to another i.e. transfer of all rights and interest in the property, which was possessed by the transferor to the transferee. The transferor cannot retain any part of the interest or right in the property, or else it would not be a sale. The definition further indicates that the transfer of ownership has to be made for a “price paid or promised or part paid and part promised”. Price thus constitutes an essential ingredient of the transaction of sale.<br>In Vidyadhar v. Manikrao & Anr. (1999) 3 SCC 573 this Court held that the words “price paid or promised or part paid and part promised” indicates that actual payment of the whole of the price at the time of the execution of the Sale Deed is not a sine qua non for completion of the sale. Even if the whole of the price is not paid, but the document is executed, and thereafter registered, the sale would be complete, and the title would pass on to the transferee under the transaction. The non-payment of a part of the sale price would not affect the validity of the sale. Once the title in the property has already passed, even if the balance sale consideration is not paid, the sale could not be invalidated on this ground. In order to constitute a “sale”, the parties must intend to transfer the ownership of the property, on the agreement to pay the price either in praesenti, or in future. The intention is to be gathered from the recitals of the sale deed, the conduct of the parties, and the evidence on record.<br>In view of the law laid down by this Court, even if the averments of the Plaintiffs are taken to be true, that the entire sale consideration had not in fact been paid, it could not be a ground for cancellation of the Sale Deed. The Plaintiffs may have other remedies in law for recovery of the balance consideration, but could not be granted the relief of cancellation of the registered Sale Deed.<br>We find that the suit filed by the Plaintiffs is vexatious, meritless, and does not disclose a right to sue. The plaint is liable to be rejected under Order VII Rule 11 (a).<br></h4>', '459dc875886d415ec013f1bdd9be86ca.jpg', '371822cae74f962b27b2c75b4317d483.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-07-09', 1, '', '', '2021-02-22 20:05:29', '2021-02-22 20:07:03');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(492, 'dJQbRzbz9DYNl0fL4T37MzpYt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Gowrishankara Swamigalu v. Sri Siddhaganga Mutt - Temporary Injunction', '<h4></h4><h4 style=\"text-align: justify;\"><span style=\"background-color: rgb(255, 255, 0);\"><i>Full Judgment below</i></span></h4><h4><table class=\"table table-bordered\" style=\"text-align: center;\"><tbody><tr><td><p><br></p><h4 style=\"text-align: center; color: rgb(0, 0, 0);\">Gowrishankara Swamigalu v. Sri Siddhaganga Mutt</h4><h4 style=\"text-align: center; color: rgb(0, 0, 0);\">M.F.A. No. 237 of 1989</h4><h4 style=\"text-align: center; color: rgb(0, 0, 0);\">Decided on 31 March 1989</h4><h4 style=\"text-align: center; color: rgb(0, 0, 0);\">Reported in 1989 SCC OnLine Kar 116 : ILR 1989 Kar 1701 : (1989) 2 Kant LJ 548 at page 1739</h4></td></tr></tbody></table></h4><h4 style=\"text-align: justify;\">Justice Shyamsundar:— This Miscellaneous First Appeal preferred under Order 43 Rule 1(r) of the Code of Civil Procedure arises out of and is directed against an order made by the Prl. Civil judge and C.J.M., Tumkur on I.A. No. 1 in O.S. 87/88 refusing to affirm an ad interim injunction granted to the plaintiff therein ensuring prevention of interference with the performance of the duties and functions by the plaintiff as Chara Jangama Pattadhikari and Uttaradhikari to the office of Mathadhipathi of a religious Mutt called Sri Siddaganga Mutt in the outskirts of Tumkur City in the neighbouring district of Tumkur.</h4><h4 style=\"text-align: justify;\">2. Upon the institution of the suit, the learned Judge had granted an ex parte injunction as aforesaid but after notice to the defendants who appeared and opposed the affirmation of the injunction besides insisting upon vacating the same, the learned Judge hearing both sides vacated the injunction and hence this appeal in which at the stage of admission itself, I have had the benefit of hearing not merely the appellant but also respondents who had successfully prevailed upon the Court below to vacate the injunction. The respondents appeared in this Court on their own, took notice of the appeal and joined issue with the appellant at the initial stage. With both sides providing all the pleadings and records that would be necessary for the disposal of the appeal, the appeal itself was heard on its merits so as to facilitate its final disposal which I propose to make by this order for which purpose I have treated this appeal as admitted as a step-in-aid for its final disposal.</h4><h4 style=\"text-align: justify;\">3. Although this appeal is but a mere proceeding arising from an interlocutory order nonetheless differs a little from the mill-of-the-run cases that are dealt with and disposed off routinely by this Court. The difference to by mind lies in the fact that the troika of parties associated in this appeal are three celibate monks and their bone of contention is an honoris causa being a position of honour i.e., the right to succeed to the title of the Mathadhyaksha of the Institution along with which marches the position of a contingent heir in waiting to step-in at the appropriate time for being inducted as the head of the institution. The appellant herein, was until deposed by the order of the second defendant dated 31-3-1988 the duly appointed heir apparent to the Headship of the Mutt and was a person waiting in the wings to step into the shoes of the Head as and when the latter stood removed from the scene in the usual course and due to natural reasons upon his demise. He was appointed as Uttaradhikari and Chara Jangama Pattadhikari by defendant No. 2 Dr. (Sri) Shivakumara Swamy, an octogenarian monk, belonging to the Lingayat community presently the Head of the Sri Siddaganga Mutt known far and wide not only for its spiritual fame but also as a centre of great learning and education. I was told that at present the institution was responsible for running and supporting 70 educational institutions under its auspices among which was a full-fledged Engineering College offering a course leading to a Degree in Engineering. It is not denied that all this was made possible by the dynamism and initiative of the octogenarian monk who, as admitted facts indicate, gave up the world to become an ascetic when he was still an young man of 20 years age and later became the Head of the institution when his own Guru passed away in the year 1941 at which time this institution although boasting of a lineage dating back to the 11th century was still a fledgling in the comity of religious institutions having then under its wing four educational institutions but after defendant Sri Shivakumara Swamigalu took over as the head of the Mutt, by constant application, devotion and assiduous labour the Swami had built-up single-handedly a great conglomerate of educational institutions which today almost matched numerically the Swami\'s advancing years.</h4><h4 style=\"text-align: justify;\">4. I have already mentioned that this appeal is by the plaintiff who is pitted against R1, a institution called Shri Siddaganga Mutt which incidentally was the first defendant in the suit and R2 is the Senior Swami - head of the first respondent institution who incidentally is the second defendant in the suit. R3 who is currently the third defendant in the Court-below is a person appointed by R-2 to fill in the office which, according to the defendants, became vacant following the removal of the plaintiff from the position of Chara Jangama Pattadhikari of the first-defendant institution. It is desirable to refer to the parties as plaintiff and defendants in the course of the order and it would also be convenient to refer to the appellant as ‘Junior Pontiff’ and to the second respondent as ‘Senior Pontiff’ during the course of this order.</h4><h4 style=\"text-align: justify;\">5. As pointed out earlier the uniqueness of this appeal consists not merely in the fact that it associates with it three celibate monks who are concerned not with any office of profit but an office although temporal in nature otherwise carried with it no ostensible perquisites with which an office is generally associated unless it be for the Honours that are said to march with it. In fact a very strong argument is built by Sri Sundaraswamy appearing for the Senior Pontiff in this Court, contending that both in the suit and in the interlocutory application the plaintiff asks for an order for sustaining or to continue to glorify himself by associating the Honours that went with the position of a religious potentate and therefore the Court should not at all countenance this application, the granting of which served no useful purpose.</h4><h4 style=\"text-align: justify;\">6. Be that as it may, it is somewhat odd that for a person who has renounced the world and abdicated its temporal pleasure the plaintiff should still grieve at the loss of his position as successor to the Mathadhyaksha after he became a persona non-designata following the adhesha issued by the second defendant.</h4><h4 style=\"text-align: justify;\">7. Counsel for the appellant Sri Parthasarathy during the course of a very forceful argument sought to make out that the plaintiff was not just fighting for resuscitating lost Honours nor was he pining away recalling to his mind the accolades he commanded when he was the acknowledged Guru, but Counsel submits that the plaintiff is also interested in his dry-stick rights as one appointed to an office from which he now finds himself ousted arbitrarily by another who was in a superior hierarchy no doubt but totally blinded by prejudice and bias towards his client so that the decision to remove the plaintiff, reached and made by such a person was clearly void, otiose and invalid. Counsel says such an order is clearly non est and has necessarily to be ignored, an aspect which he commends very strongly for consideration. This argument is refuted and very keenly too by learned Counsel Sri Sundaraswamy in tandem with Sri Nandeeshwar, Sri Veerabhadrappa and Mr. Shivappa appearing for the respondents, pointing out that not merely had the plaintiff lost the opportunity of becoming the supremo of the defendant-1 Institution in due course but he had also belittled the dignity and image of the position to which he had been elevated by the Senior Pontiff in the fond hope that he would be a worthy successor to him. Counsel submits that over the years the period stretching to more than a decade, the Senior Pontiff was grieved to find the junior not making use of the opportunity afforded to him for becoming a highly adorned spiritual leader but instead found him turning into a mercenary demagogue than a religious head and when he continued to act like a vandal bent on destroying the lofty and noble values for which the institution stood for and when all advice and attempts at correcting the junior had not merely failed but had resulted only in reverberating attempts by the junior at wresting the Senior\'s position even going to the extent of plotting against the Senior\'s life, the latter had then to act and remove the junior after issuing two show cause notices calling upon him to state why action to remove him should not be taken. It is then pointed out that only one of those two notices elicited a reply more marked for its impudence than offering any logical explanation but the other having remained quiscent without any reply, the Senior had therefore to act and eject the junior from office. Basing themselves on these divergent stands both sides argued their respective cases which probably to them was of some importance or may be of seminal importance but to my mind the arguments advanced were far beyond the scope of this appeal although they may be very relevant and pertinent to be raised and contested before the trial Court where the suit is still pending.</h4><h4 style=\"text-align: justify;\">8. Although by way of a preface I have brought out the salient features of the controversy on hand, to put it however in the proper perspective it would be necessary to make further advertance to the factual back-drop to the present controversy. As mentioned earlier this indeed is a hapless litigation between three monks who had admittedly renounced the world so as to be free to pursue eternal rewards within the sublime claim of the world beyond. By hind-sight it appears to me the endeavour of the plaintiff in trying to joust with the second defendant who admittedly picked him up and put him into a position of honour from which he was later removed by the second defendant himself and has inturn resulted in the filing of the suit giving rise to this appeal is indeed most unfortunate. It appears and both sides agree that according to the tradition of the Mutt the head of the Mutt chooses and appoints at some point of time during his life time, one who will succeed him in the years to come after being carefully groomed and made proficient in Dharmic studies, rituals and methodology of performing worship to the presiding deity of the Mutt etc. Such was also the case in regard to defendant-2 who became the heir apparent of the then Senior Swami, in the year 1930 before succeeding him in the year 1941. It is not in dispute that defendant-2 was single handedly managing the institution which at the present head count runs and manages 70 educational institutions with a student strength of 4000 on its campus all of whom it is said were fed free of cost by the Mutt throughout the year. Probably feeling the need to share the responsibility and to make room eventually for some one to succeed him, it was defendant No. 2 who sighted the plaintiff, an old alumnus of the Engineering College run by the Mutt, which he entered after completing his secondary education in other institutions of the very Mutt. The plaintiff soon after acquiring the Engineering Degree joined the ranks of the teachers in his old Alma Mater, before he was chosen by defendant No. 2 to succeed him. This transition of the plaintiff from a householder to a safforn robed monk took place in the year 1975 and I was told at a mammoth function organised at a cost of several lakhs of rupees the plaintiff was installed as Chara Jangama Pattadhikari and Uttaradhikari of the ruling Mathadhipathi, none other than the second defendant. It is mentioned that amongst the several thousands of people who attended the anointing ceremony there were many dignitaries of the State including the then Chief Minister and Governor etc. and that after the ceremony the plaintiff was taken in a procession on a palanquin along with the Senior so that the people at large could pay obeisance and offerings to him. On that occasion the record shows that the plaintiff had expressed his deep sense of gratitude to the Senior Pontiff on bestowing the cardinal distinction of becoming his successor and had said in the course of speech while replying probably to the felicitations showered on him as follows:</h4><h4 style=\"text-align: justify;\">It is this man who had said that he was a child in the hands of the Guru to be led at his will, has now thrown the gauntlet at the Guru in a Court of Law. Be that as it may, it is common ground that in the next two years he was in close communion with the Senior Pontiff and was initiated by him into the ways and means of performing worship etc., and was subsequently also entrusted with small responsibilities like overseeing the massive feeding programme that went on in the Mutt day-in and day-out catering to the needs of the students and the devotees who flocked to the Mutt daily. I was told that nobody who came to the Mutt was turned away without being fed at the Mutt\'s expense and this Mutt, therefore, was famed for this kind of Dasoha (Kyakarya). The Senior had also desired the plaintiff to go to Benaras for acquiring proficiency in Sanskrit studies but the plaintiff never responded to these suggestions and instead elected to continue in the Mutt saying that he was content at getting all the training from the Senior. Nonetheless, tutors were appointed for coaching the plaintiff in Sanskrit, scriptures etc. and it transpired later that the plaintiff being not interested in this kind of serious pursuits the teachers appointed for that purpose had perforce to leave. It also came to the notice of the Senior that the plaintiff was not taking seriously the responsibilities entrusted to him and was found to illtreat students who complained about non-availabillty of food etc. He had occasion to write to the plaintiff several letters and suffice. It to refer to four such letters written on 1-9-1981, 26-9-81, 12-1-62 and 8-5-86.</h4><h4 style=\"text-align: justify;\">In the later years it turned out the plaintiff was going about holding himself out as the President of the Mutt and was accepting all Honours due to that office and this practice appears to have continued despite the Senior\'s protestations. Things appear to have come to a head when in the presence of Senior Swamiji, the Junior allowed his followers to perform ‘Lakshabilvarchane’ to which Honour only the Head of the Mutt is said to be entitled to. All this appears to have brought about a serious rift between the two. Both of them began to suspect each other of making attempts at overthrowing one other and the Senior Pontiff even suspected foul play aimed against his life. Possibly these embittered feelings were fuelled by their own coterie of followers. The plaintiff also appears to have written a letter asking the local Superintendent of Police to give protection to him and to some of the persons referred to in the letter as members of his immediate entourage. In this state of affairs some of the well-wishers of the Mutt under the then Swamiji of Sutur Mutt of Mysore met to resolve the rift between them and in consequence a document was executed by the plaintiff stating that hence forward he would act and abide by the wishes of the Senior Swamiji. That document is dated 13-5-1986. But a day earlier the Senior Pontiff went to Bangalore and executed a Trust Deed regarding the properties of the Mutt constituting himself as sole trustee making it clear that the aforesaid step had to be taken because of the prejudicial activities of the junior pontiff. The plaintiff in a belated reaction issued a press note dated 14-3-1988 in which he decried the action of the Senior and vowed to take back all the properties of the Mutt if they were wrongly alienated. His statement in that behalf is as follows:</h4><h4 style=\"text-align: justify;\">In another incident a catche of fire crackers caught fire in the Mutt both Mutt property being damaged and probably injuring some people creating an atmosphere of fear in the Mutt all of which led the Senior Pontiff to issue the two show cause notices one in the year 1987 and another in the year 1988 asking the junior to show cause why he should not be removed. The plaintiff sent a reply only to the first show cause notice but chose not to reply the second one. In his reply he denied all the allegations made against him and stated that they were all false and trumped up by people who were ill-disposed towards him and hinted that the Senior was lending his ears unjustly to those who were interested in vilifying and denegrating him. But when the second show cause notice remained unanswered the Swamiji went ahead formally deposed the plaintiff and installing in his place the third defendant as his successor and Charajangama Pattadhikari. In the second notice the plaintiff had been given three months time to choose a place of his own at Bangalore where he would elect to reside and that he would be paid a monthly pension of Rs. 3,000/- if he resided there peacefully and without any further demurrer against the authority of the Senior Pontiff. The plaintiff who never accepted these terms filed the suit in the Court-below at the end of the three month truce period and obtained an ad-interim injunction against defendants 2 and 3 from allegedly Interfering with his own position as the appointed successor and Charajangama Pattadhikari. That injunction which was later vacated by the Court has since given rise to this appeal.</h4><h4 style=\"text-align: justify;\">9. The parameters under which the grant or refusal of an injunction admits of resolution being well known, only under those parameters even the instant case has to be decided and disposed off, although it may be that this appeal and the suit in the Court-below has aroused and generated a lot of interest amongst the general public particularly amongst the Lingayat community to whom the first defendant Institution was a largely venerated sanctum of religion. But the fact that a large number of the laity following a particular faith are likely to be interested or may be perturbed or disturbed by the outcome either in the suit or in this appeal is not a factor that concerns the Court and nor should that circumstance persuade the Court to enlarge the scope of its inquiry if it was otherwise limited under law.</h4><h4 style=\"text-align: justify;\">10. In these matters of injunctions it is trite that the grant or refusal thereof is discretionary but the discretion itself has to be exercised discreetly, with care and caution and not arbitrarily or capriciously. This Court in Life Insurance Corporation v. Bangalore L.I.C. Employees Housing Co-operative Society Ltd. [ILR 1988 Kar 2817.] has laid down what factors should weigh with the Court either in making or refusing an order for injunction. Adverting to the care to be exercised the Court said:</h4><h4 style=\"text-align: justify;\">“In a case where predicting of a possible result for the plaintiff being somewhat hazardous, it would be very necessary to tread with great caution the ground for granting temporary injunction.”</h4><h4 style=\"text-align: justify;\">Apropos the norms to be adopted, the Court again said:</h4><h4 style=\"text-align: justify;\">“But at the same time, in exercising its discretion the Court must totally circumspect and exercise extreme caution mindful of the fact either grant or refusal of the remedy will cause some harm or inconvenience to one side or the other…..Despite the guidelines and well laid out principles covering exercise of this jurisdiction, Courts, regrettably, have been administering the same like the proverbial Chancellor\'s foot of yore.”</h4><h4 style=\"text-align: justify;\">It is, therefore, only proper to proceed in this case also to evaluate the right of the plaintiff for an injunction in the light of the well-marked parameters such as prima facie case, balance of convenience, irreparable loss and injury. Added to this is the circumstance that I am not the Court of the first instance but I am a Court of Appeal whose jurisdiction is circumscribed and limited to ascertaining whether the trial Court in making the impugned order had committed any error in the application of the requisite principles to the facts of the case.</h4><h4 style=\"text-align: justify;\">10. The inquiry by me should not go beyond the foregoing and certainly does not extend to substituting my views to that of the learned Civil Judge. This again is trite law and a host of decisions of this Court make the aforesaid position very clear. I may refer in passing to the decision of His Lordship the Hon\'ble Mr. Justice Govinda Bhat (as His Lordship then was) in Lakshminarasimhiah v. Yalakki Gowda [1965 (1) Mys. L.J. 370.] . Adverting to the scope of an appeal from the order of the trial Judge granting or refusing to grant an interim injunction, His Lordship said:</h4><h4 style=\"text-align: justify;\">“What the Court of appeal has to consider is simply whether or not the Judge who dealt with the matter has properly exercised the discretion which he undoubtedly possesses. The Appellate Judge is not to approach the case as if he were the trial Judge. The granting or refusing of injunction is a matter resting in the sound discretion with the trial Court and consequently no injunction will be granted whenever it will operate oppressively or inequitably or contrary to the real justice of the case.”</h4><h4 style=\"text-align: justify;\">11. The decision in Lakshminarasimhaiah\'s case [1965 (1) Mys. L.J. 370.] has been followed by Venkataswamy, J. (as His Lordship then was) in Rangamma v. Krishnappa [1968 (1) Mys. L.J. 552.] . His Lordship held:</h4><h4 style=\"text-align: justify;\">“Granting or refusing of temporary injunction rests on the sound exercise of discretion by the Court. Such exercise of discretion cannot be lightly interfered with by the Appellate Court, unless it is shown that such exercise of discretion is unreasonable or capricious. That a different view was possible on the facts and circumstances of the case by itself will not be sufficient to interfere with the order.”</h4><h4 style=\"text-align: justify;\">Both these decisions have been referred to and followed with approval by Santosh J. (now of revered memory) in Laxmimanojana v. Sujnandra. [1970 (2) Mys. L.J. 82.] His Lordship in setting out the guidelines directing the exercise of power by the Appellate Court in these matters and in setting out the circumstances under which the Court of appeal could interfere in an appeal from an interlocutory order, made the following enunciation which bears reproduction:</h4><h4 style=\"text-align: justify;\">“If the discretion has been exercised by the trial Court reasonably and in a judicial manner, the fact that the Appellate Court would have taken a different view may not justify interference with the trial Court\'s exercise of discretion; but if it appears to the Appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored relevant facts then it would be open to the Appellate Court to interfere with the trial Court\'s exercise of discretion.”</h4><h4 style=\"text-align: justify;\">(Emphasis supplied)</h4><h4 style=\"text-align: justify;\">13. The foregoing principles were reiterated in a more emphatic manner by Hon\'ble Justice Kalaghate (now of revered memory) in Sakharam Nanasaheb Patel v. Vithal Siddappa Chalawadi, [1968 Vol. 17 Law Reports (Mysore) 512.] wherein he laid down as:</h4><h4 style=\"text-align: justify;\">“The Appellate Court has no power to set aside the discretionary order of the trial Court on the ground that the trial Court in its view has not correctly appreciated the materials placed before it.</h4><h4 style=\"text-align: justify;\">Held that the contention that the Appellate Court had full power to consider the appeal on merits in view of the provision of Section 104 read with Section 107 of the Code of Civil Procedure could not be accepted as correct in appeals arising out of interlocutory orders which are discretionary in nature.”</h4><h4 style=\"text-align: justify;\">Mr. Sundaraswamy also placed reliance on two decisions of Supreme Court reported in A.I.R. 1960 S.C. 1156, [Printers Ltd. v. Joseph.] and AIR 1967 SC 249 [U.P. Co-op. Federation Ltd. v. Sunder Bros.] wherein their Lordships had enumerated the very principles adumbrated in the decisions of this Court referred to supra.</h4><h4 style=\"text-align: justify;\">14. I might at this juncture recall that a good bit of the argument of Mr. Parthasarathy for the appellant was devoted in persuading me to hold that even in Ecclesiastical matters principles of natural justice applied and in this case where the Senior who had made allegations and accusations against the junior, not merely proceeded to hold an inquiry but also dismissed the junior eventually, thereby contravening the principles of natural justice. The submission is that the Senior had constituted himself a Judge to inquire into the very charges he had levelled against the junior and therefore the action of the Senior Pontiff came within the doctrine of ‘Nemo judex in re sua’ i.e., no one should be a Judge in his own cause and hence thoroughly indefensible.</h4><h4 style=\"text-align: justify;\">15. But Mr. Sundaraswamy appearing for the Senior pontiff submits that these principles of natural justice and allied concepts did not apply directly to ecclesiastical matters and that our religion had at all times recognised the power of the Mahant or the religious head to remove a sishya from his office and that the said power could not be exercised by any one other than the Mahant. The ultimate submission of Sri Sundaraswamy was that the Senior Pontiff had to act because of the prevalent exigency which required the intervention of the Senior to protect the interest of the Mutt. In other words, it was said that in the existing circumstances action taken by the Senior against the junior was accordingly inevitable there being no other option at all and therefore on the principle of the doctrine of necessity the passing of the impugned order was justified. Mr. Sundaraswamy reminiscing from the legendary scripture of Mahabharatha cited the following sloka in support of the impugned action:</h4><h4 style=\"text-align: justify;\">This stanze contains the advice of Vidura to Drutarashtra to cast away Duryodhana as the planetary signs under which he was born had indicated that he would be the sole cause for the destruction of the entire Kaurava dynasty. Vidura emphasising the great peril which awaited Kauvravas advised Drutarashtra to do away with Duryodhana so that the dynasty could be saved. His meaningful advice that it was better to sacrifice the individual in the interest of the rest of the family went unheeded and the result was the total perishing of the Kauvrava dynasty. Mr. Sundaraswamy cited this sloka from the ancient scripture to show that the Senior Pontiff\'s action in casting away the junior pontiff was taken to save the institution from the profligacy of the junior. But Mr. Parthasarathy for the junior pontiff urges a more modern outlook in these matters far removed from the embers of ancient relics and relies on a passage in Tagore Law Lectures, a treatise on which Mr. Sundaraswamy had earlier relied on in support of the contention that Mahant and Mahant alone can remove the Sishya inducted by him and nobody else had the power, to contend that not enough of invigorating research had been done in these matters justifying the conferring on the Mahant such large powers. I may also add that a galore of authorities had been relied upon by both Counsel in support of and against the propositions urged by either side.</h4><h4 style=\"text-align: justify;\">16. Although very fetching the argument has been on this point, I must refrain however from adverting even slightly to the claims made on either side in this behalf since it is likely to prejudice the trial of the suit pending in the Court below. Prudence dictates and precedent enjoins that I must accept the course of steering a neutral path. For these reasons I cannot and do not propose to oversee the correctness or otherwise of the action taken to remove the plaintiff from whatever office he had held following his induction in the year 1975 and must decline to say whether the action by the Senior Pontiff was void, ab initio or merely invalid or to say in this context whether the inquiry leading to the removal of the plaintiff not being by an independent person was bad in law. I shall not also advert to the question whether an inquiry in the circumstances could have been held by somebody else at all but shall leave it to be investigated by the Court below if these questions are again mooted and joined in by both sides at the trial.</h4><h4 style=\"text-align: justify;\">17. I must, however, at this juncture advert to an alternative stand of the plaintiff touching his removal since that requires a little consideration only regards a factual aspect. It is now urged before me that the Senior Pontiff had no power at all to remove the plaintiff because his position was that of a co-adjudicator under the Canon Law or that he was an associate in holiness with the Senior. In other words it is claimed that both the plaintiff and second defendant were persons of equal authority so that the latter could not have removed the plaintiff at all in the purported exercise of his authority. This argument was repeatedly highlighted before me and it was pointed out that the learned Judge in the Court-below had in the course of his order observed that Counsel for the plaintiff had conceded very fairly that the Senior Pontiff had the power to remove the junior pontiff and hence the investigation in the case should only be limited to ascertain whether such removal was for a good cause as enjoined by the decision of the Supreme Court in Thambeeran\'s case [(1974) 1 SCC 150 : AIR 1974 SC 199.] Mr. Parthasarathy who appeared for the plaintiff in this Court and in the Court-below, having argued the application for the grant of injunction in the Court below tells me that he had not made any concession regards the existence of power or authority in the Senior to remove the junior as noted by the Judge. Counsel says that learned Judge had mistakenly assumed that such a concession had been made before him while it was not made at all. If that is so I would assume with Counsel that he had not made any such concession and the Court-below was in some error in assuming the contrary. But, it seems to me, it matters very little, since that question being very much at large, the plaintiff would undoubtedly be at liberty to urge that he was removed not only without a good cause but that the Senior Pontiff had no power or authority to depose him from office at all. I make it clear that after the matter goes back to the Court-below if the question as to the authority of the Senior Pontiff to remove the junior pontiff is raised for active consideration, the Court-below will consider the same unbriddled by whatever had been stated by it while disposing off the I.A. under reference.</h4><h4 style=\"text-align: justify;\">18. Now that I believe I have fixed the contours of this appeal and the limits within which it must be decided, I shall now consider the same in the light of the point arising herein as follows:</h4><h4 style=\"text-align: justify;\">“Whether the Court-below was justified in the facts and circumstances of the case in refusing to affirm the ad-interim injunction granted to the plaintiff?</h4><h4 style=\"text-align: justify;\">19. As pointed out earlier grant of ad-interim injunction has to course through the following slots:</h4><h4 style=\"text-align: justify;\">(i) prima-facie case,</h4><h4 style=\"text-align: justify;\">(ii) balance of convenience,</h4><h4 style=\"text-align: justify;\">(iii) irreparable injury to the plaintiff, and</h4><h4 style=\"text-align: justify;\">(iv) lastly all injunctions being absolutely discretionary in nature whether there was any overriding consideration that supported the refused of the injunction by the Court-below.</h4><h4 style=\"text-align: justify;\">It is not disputed before me that the learned Judge considered the facts obtaining from the records in accordance with the foregoing parameters. Briefly I may recall his findings: To start with the learned Judge agreed with the plaintiff that he had made out a prima facie case by commending a serious question for consideration by the Court about the propriety or legality of the order passed by the Senior Pontiff deposing him from office and held that the question commended was one which was neither casual in nature nor was it a postulate tainted by levity.</h4><h4 style=\"text-align: justify;\">20. The learned Judge dwelling next on the question of existence or otherwise of a prima facie case has, however, limited it to the question as to whether the appointment of the plaintiff as a junior pontiff had been revoked by the Senior without any good cause. It is agreed that the plaintiff could have been unseated only if there was a good cause or justification for his removal. But the learned Judge seemed to think that Counsel for the plaintiff had accepted the position regards the availability of power in the second defendant to remove the plaintiff. But I have already noted that in this Court Mr. Parthasarathy for the appellant maintained that he had not made any such concession before the learned Judge.</h4><h4 style=\"text-align: justify;\">21. Be that as it may the learned Judge next proceeded to consider the question of balance of convenience and in ruling that such balance of convenience lay more in refusing the injunction rather than granting it, he foresaw the onset of chaos in the Mutt if the plaintiff were to be given an injunction and on the basis thereof the right to exercise the concomitant privileges of the office from which he had been ousted. According to him an order in his favour would cause great problems in the administration of the Mutt, concerned as it was in running a large number of educational institutions apart from catering to the needs both spiritual and temporal of its followers. He pointed out that proximity of the two Heads to one another as at present would be ruinous to the institution and would bring about disastrous consequences. He observed in his order at para 21 as follows:</h4><h4 style=\"text-align: justify;\">“This may lead to disastrous consequences since both plaintiff and defendant No. 2 may try to act in their own way and deal with the property and manage the affairs of the Mutt in their own way. This situation would definitely cause much injury or harm to the institution, whose interest, I consider as paramount and if such an order is granted, it would have adverse effect on the administration of the Institutions connected with the first defendant\'s Mutt.”</h4><h4 style=\"text-align: justify;\">22. Turning next to the question of irreparable loss and injury that the plaintiff would suffer by refusal of the injunction, the learned Judge in the penultimate part of the Judgment says:</h4><h4 style=\"text-align: justify;\">“Now in the instant case, it is admitted in the affidavit filed in support of I.A. 1 that the second defendant has been managing the affairs of the Mutt and the innumerable institutions run by the Mutt. It was also admitted by the learned Counsel for the plaintiff that defendant No. 2 is also there as Matadhyaksha and the right of defendant No. 2 to nominate his successor and further his right to remove his successor was also not disputed by the learned Counsel for the plaintiff. In fact, Tambiran\'s case referred to above is clear on this point that the Matadhyaksha has got right to remove his successor for any good cause and in the interest of the Mutt. Now that being so, it must now be considered as to what would be the effect, if an order of injunction is granted as prayed for in I.A. No. 1. The prayer in I.A. No. 1 as already mentioned is to restrain the defendants from interfering with the exercise and performance of the duties of the plaintiff and his functions as Matadhyaksha and Chara Jangama Pattadhikari. If this order of injunction is granted definitely the plaintiff would get all the rights exercise his power and performing his duties and functions as Matadhyaksha, in which event, there will be a parallel administration, both by the plaintiff and defendant No. 2, since admittedly defendant No. 2 is already there managing and administering the Mutt\'s affairs as Matadhyaksha. Therefore, the granting of order of injunction as prayed for in I.A. No. 1 would definitely be putting the institution in such a situation that both plaintiff and second defendant would be virtually acting as Matadhyakashas in their own way, which would be definitely not in the interest of the Mutt, which has a long history. This may lead to disastrous consequences, since both plaintiff and defendant No. 2 may try to act in their own way. This situation would definitely cause much injury or harm to the institution whose interest I consider as paramount and if such an order is granted it would have adverse effects on the administration of the institutions connected with the first defendant\'s Mutt. In this view of the matter, I am of the opinion that the injury that would be caused to the first defendant Mutt would be more than the injury that would be caused to the plaintiff.”</h4><h4 style=\"text-align: justify;\">23. The question now is whether the learned Judge had gone wrong anywhere either in addressing himself to the legal position regards the grant or otherwise of an injunction or whether the views expressed by him as above were so unreasonable, unjustifiable or sufficiently capricious to call for interference at the hands of this Court.</h4><h4 style=\"text-align: justify;\">24. I am to recall that Sri Parthasarathy for the appellant expended a lot of fire power on the finding of the learned trial Judge vis-a-vis the prima facie case he found to be clearly existent. Counsel submits that having regard to the tried and established position of law the order made by the defendant being in total transgression of the principles of natural justice was void and void ab initio and the Court was, therefore, duty bound to revive the office held by the plaintiff by the issue of a temporary Injunction so that he would not suffer or experience any aberration in the enjoyment of that office. Mr. Parthasarathy read to me passages from Halsbury\'s Laws of England, Woodroff on Injunction, Wade on Administrative Law besides relying repeatedly before me on the decision of the Supreme Court in Thambiran\'s case emphasising the principle laid down therein that the junior had also recognised powers in tune with that of the Senior with whom the junior shared a holy relationship in the enjoyment of spiritual power. Mr. Sundaraswamy, the Senior Counsel, appearing for defendants 1 and 2, herein sought to contend that in these matters of religion natural justice had no role to play at all and that nobody can be expected to or be in a better position to judge the pupil than the teacher himself. Without more this being clearly a case of necessity compelling the Senior Pontiff to act in expelling the junior for good reasons and in the interest of the Institution which he heads, the action so taken was not merely justified but was well-warranted. He relied on a passage from Jakson on ‘Natural Justice’ with particular reference to professional expertise being necessary to take a particular decision and necessity spelling out the exception to the rule nemo judex in re sua. The said principle therefore had to yield to necessity. Simillar passages in Wade\'s ‘Administrative Law’, Smith\'s ‘Judicial Review of Administrative Action’ and others were relied on. Mr. Parthasarathy in turn joined in with a chain of authorities to reinforce his argument that the Senior Pontiff being literally blinded with prejudice and hatred towards the Junior was totally incapacitated in acting in the matter and much less in taking a decision to the detriment of the plaintiff. The learned Judge in the Court below was invited to record a finding on this aspect of the matter but had wisely declined to do so. I must recount again that we are still at the threshold of the trial which is yet to commence and, therefore, in this Court I should take care not to say anything that is likely to prejudice one side or the other.</h4><h4 style=\"text-align: justify;\">25. I need hardly add the existence of a prima facie case in these matters of granting injunction is really the harbinger or the all clear sign to go ahead in investigating other aspects of the question governing the grant or refusal of injunction. If there was no prima facie case at all or the case put forward was so weak and tainted having very little prospect of being accepted by the Court, further questions of balance of convenience and irreparable loss need not be considered since the plaintiff would fall at the very first stile itself. But if there was a prima facie case then other considerations governing the grant of injunction would come into play and will also have to be evaluated before granting or refusing the injunction.</h4><h4 style=\"text-align: justify;\">26. In other words the existence of a prima facie case or even a very strong prima facie case does not permit leap-frogging by the plaintiff directly to an injunction without crossing the other hurdles in between. In England before the advent of the decision in American Cynamid Co. v. Ethicon Ltd. [ILR 1976 Kar 426.] referred to and followed by this Court in L.I.C. v. Bangalore L.I.C.E.H.C.S. Ltd. the existence of a prima facie case strong enough to ensure fool-proof success ultimately of the lis was treated as the criterion for the grant of any ad interim injunction. But that view underwent a sea change following the decision in Cynamid Company v. Ethicon Limited wherein the House of Lords said, in order to ascertain whether a prima facie case did exist or not, it was not necessary to hold a mini trial at the threshold but it would be sufficient if an endeavour was made by the Court to identify that the suit claim was neither vexatious or too casual for consideration. It is in that context this Court in L.I.C. v. Bangalore L.I.C.E.H.C.S. Ltd. made the following statement at para 24:</h4><h4 style=\"text-align: justify;\">“The preventive remedy of injunction is thus granted as an instant antidote to stop or prevent the invasion of the plaintiff\'s rights in regard to which a complaint is made. The Court having regard to the expediency involved should not embark upon a nit-picking operation at that stage by holding a mini trial to lay thread-bare the case of the plaintiff to find out if a prima facie case is made out or not. It would be sufficient if the Court is assured that questions raised by the plaintiff are not vexatious or too casual, but are such as to merit serious consideration at a subsequent stage.”</h4><h4 style=\"text-align: justify;\">There is overwhelming authority for the proposition that mere existence of a prima facie case or a very strong prima facie case does not ipso facto justify the grant of an injunction (See in this connection J. Krishnamoorthy v. Bangalore Turf Club, [ILR 1975 Kar 1957.] and National Advertises v. M.S.R.T.C. [1963 (2) Mys. L.J. 356.] Therefore even granting that the plaintiff has an invincible prima facie case, he will not be entitled ex debitiae justiciae, to the grant of an injunction unmindful of other consequences. If the consequences of granting an injunction are detrimental in nature then an injunction will not be granted even though the plaintiff might have an unbeatable prima facie case. It is precisely for this reason and just as the learned Judge in the Court below did, I must also desist from pronouncing finally on the question of niceities raised and argued by both sides touching the tainted character or otherwise of the impugned order made by the Senior Pontiff in removing the junior from office. A Court, it is said, like a human being must cross a bridge only when it comes across the same and not leap blindly even before it is reached and, it being not necessary to decide all these questions at this stage, I must desist from recording a finding on all these questions as that would be forestalling the issues arising in the suit.</h4><h4 style=\"text-align: justify;\">27. Hence, it is with some reluctance I refuse to be drawn into recording my views on all these matters despite the able assistance rendered by Counsel on either side. In sum I must say that on the first of the parameters for deciding an injunction namely the existence of a prima facie case, the learned Judge in the Court below having held that such a case did exist and that finding being entirely in favour of the appellant needs little for concurrence and even so I have no hesitation in concurring with the learned Judge in holding that the plaintiff had made out a prima facie case and has certainly not come forward with any ambiatory plaint requiring no serious consideration at all.</h4><h4 style=\"text-align: justify;\">28. The next point urged for consideration is the finding of the learned Judge appropos the balance of convenience as aspect on which he has non-suited the plaintiff. The question is whether he was right in doing so. What in the context is balance of convenience and how is it to be judged are aspects dealt with in the LIC case referred to supra. Adverting to the same this Court said:</h4><h4 style=\"text-align: justify;\">“‘Balance of convenience’ in thus not something akin to a tradesman\'s scales to be manipulated abroitly but it is the resultant anticipation by the Court in an objective manner of the concomitant hardships experienced by the one vis-a-vis advantages secured by the other party subject to there being clear chances of mitigating in some manner the hardship endured pendente lite by one or the other side and the prospect of being adequately compensated should pre-eminently be the primordial factor guiding exercise of discretion one way or the other.”</h4><h4 style=\"text-align: justify;\">Therefore, the question now is whether in the final analysis taking into consideration the grievance of the plaintiff, the rights of the defendants and particularly of the first defendant institution regard being had to the fact that its administration requires a well monitored system free from hassles between those responsible for running it, would it be convenient to Injunct the defendants against the plaintiff thus providing him immunity from the alleged meddlesome conduct of defendant No. 2?</h4><h4 style=\"text-align: justify;\">29. Mr. Parthasarathy throughout the course of his argument maintained that the plaintiff was not interested in asserting any right to participate in the administration of the Mutt or its kindred institutions but he would be content if he is only allowed the use of the residential part of the Mutt for his residence as before. It is common ground and as a matter of fact the temporary injunction granted by the Court below to the plaintiff continues even now and that injunction is merely made use of by the plaintiff who stays elsewhere for visiting a room in the Mutt premises now and then, at intermittent intervals staying there for some time before returning to his abode outside the Mutt- was told even during these periodic visits the plaintiff had to be accompanied by a posse of policemen to ensure his personal safety.</h4><h4 style=\"text-align: justify;\">30. The learned Judge, as can be seen from the excerpt of his order which I have culled out herein before, felt that the grant or continuance of the injunction would result in parallel administration with both the plaintiff and defendant No. 2 vying with each other to turn the wheel of administration leading to a result which would be disastrous to the Mutt and the educational institutions it was running. Mr. Parthasarathy takes serious exception to this finding and submits that even during the earlier days when his client had no differences with the Senior his client having followed the instructions of the Senior and had attended only to such work as had been entrusted to him. Counsel says that even now he would do the same thing and be content with a role more suited to a docile pet than to the Head of the Institution responsible for catering to the needs of the followers of the Mutt.</h4><h4 style=\"text-align: justify;\">31. I am afraid it is some what difficult to assimilate into the character of the plaintiff a supine attitude likes the one envisaged by his Counsel. From the galore of documents and pleadings that have been produced in the case, there is clear indication and it is also not denied that the relations between the Senior Pontiff and the junior pontiff has been greatly strained and badly soured. In the two show cause notices issued by the Senior to the junior he has alluded to the plot engineered by the junior not merely to overthrow him but also to do away with him. There are some letters written by the Senior to the junior long before the present impasse between them came to surface, expressing displeasure at the attitude, behaviour and conduct of the plaintiff in not devoting his attention to the affairs of the Mutt with particular reference to his callous neglect in bestowing care and attention on the students that are said to reside in the Mutt whose number, I am given to understand, touched nearly 4000 and all of them had to be fed by the Mutt which, indeed was a stupendous task. It may be noted that the Senior Swamy had in the past found some reason to take umbrage at the junior\'s conduct and to pull him up. Subsequently there were serious differences with each man blaming the other for the deteriorating situation.</h4><h4 style=\"text-align: justify;\">32. It has transpired that people from all walks of life in the State and in the town of Tumkur where the Mutt is located, not to mention the Ministers, Government Officers, police officials, having intervened and negotiated with the two Swamijis had finally resulted in a settlement in the month of May, 1986, as could be seen from a docket of assurance given by the junior agreeing to bury the hatchet and to begin anew with the onset of a new dawn. But then a day or two later the Senior went to Bangalore, executed a Trust Deed under which he constituted a Trust headed by himself and others who were in his confidence and in the course of the Trust Deed adverted to the unpredictable behaviour of the junior and to his distressing conduct of late had led him to believe that an occasion had arisen to take steps to ensure the safety of the vast properties of the Mutt so that they do not fall in later years into the outstretched hands of greedy inter-meddlers. The moment the plaintiff came to know of the execution of this Trust Deed he issued a press statement warning people from meddling with the properties of the Mutt covered by the Trust Deed and swearing to take action to rescue properties of the Mutt covered by the Trust, the ushering in of which was strongly deprecated. Thereafter he appears to have taken to making a foray of trips outside the Mutt claiming himself to be the head of the Mutt without making any reference to the Senior Pontiff who was still on the scene then and is very much on the scene even now.</h4><h4 style=\"text-align: justify;\">33. Added to all this there was an incident at which a catche of explosives stored in the Mutt had been set fire to, causing extensive damage to the properties of the Mutt and injuries to the inmates as well. The hand of the junior was suspected in that behalf. He also seems to have incurred the wrath of the Senior by gathering around him a coterie of people who appear to have little or no respect for the Senior Pontiff. One amongst them was a person called Maridevaru, a journalist of Tumkur whom the plaintiff had commended to the Superintendent of Police as a close associate requiring police protection, he had written, printed and published pamphlets denegrating the Senior swami whom he referred to as ‘Dr. Shavakumar Swami’. That Maridevaru was one among the others whom the plaintiff had occasion to commend to the police for protection as a member of his immediate entourage, against the marauders from the camp of the Senior.</h4><h4 style=\"text-align: justify;\">34. I have briefly examined at random some places of material having evidentiary value bearing on the question of balance of convenience and have adverted to some of them although there is infact a galore of documents indicating the plaintiff had of late been exhibiting a panache for supplanting the Senior and holding himself out as the Mathadhyaksha. As a matter of fact in the cause title to the plaint he describes himself as Mathadhyaksha, although his Counsel does not dispute that he was anointed and appointed only as Chara Jangama Pattadhikari. Counsel submits that it is on the basis of the decision of the Supreme Court in Thambiran\'s case referred to supra that relationship between the Senior and the junior being akin to that of co-adjutors or joint associates the reference to the plaintiff as Mathadhyaksha is sought to be justified. Regards the events that are said to have taken place within the Mutt disturbing its serene atmosphere, Counsel says that his client had been unjustly blamed and maligned although he had no hand in it and nor was he responsible for any of the incidents. Likewise in regard to deifying of the plaintiff in and outside the Mutt as the Head, Counsel again says that the junior was not responsible but his followers were. He maintains that even now he would only be content with being restored to his position inside the Mutt as before and to the Senior Pontiff who was still on the scene then and is very much on the scene even now.</h4><h4 style=\"text-align: justify;\">35. Again I must remind myself herein I am to examine whether the finding of the Judge in the Court below was not justified in the view he took on the question of balance of convenience on the basis of facts and material on record. It is for that purpose I have adverted to the material available on record so that I could review his conclusions in their background.</h4><h4 style=\"text-align: justify;\">36. It is not necessary to reiterate that on any of these questions or any other question arising herein there may be the possibility of this Court taking a different view from the one which the learned Judge below had taken but it will be wrong to substitute my views to that of the learned Judge, unless it can be said that on facts there was only one view to take and the learned Judge in the Court below had omitted to take the same, but it is a different proposition altogether where two views are possible. Bearing in mind the aforesaid principle, if the finding of the learned Judge is reviewed it becomes clear that it does merit affirmance and does not warrant expressing any demurrer. I am satisfied that armed with the injunction the plaintiff, is not likely to sit quiet with his arms akimbo. The statement the plaintiff had issued after the Senior Pontiff executed the Trust Deed clearly spells out the view point of the junior and the ambitions he nurtured even when the Senior Pontiff was still there and hence in the usual course he would not have any voice in the administration of the properties of the Mutt or in its affairs. Notwithstanding the same he had still voiced a strong dissent, almost clenched his fist swearing to take action to recover the properties of the Mutt from any one who had dared to take them on transfer. As pointed out by Mr. Sundaraswamy the imperious manner in which he commanded the Superintendent of Police to take care of his satraps clearly denotes his penchance for exercising authority all of which certainly does not forebode a comfortable sojourn for the Institution if the plaintiff is armed with an injunction and sent round the Mutt premises. I should think that even the slightest prospect of an anarchial situation prevailing in the Mutt following the arming of the plaintiff with an injunction by Court should be sufficient reason to preclude its grant. There is also a clear possibility of the people at large becoming the victims of the power-play between the plaintiff and defendants. In such circumstances, prudence, if not trite principles of law laid down by eminent writers like Woodroff, Nelson, Spry etc., to whose works my attention was repeatedly drawn to, commend refusal of the Injunction as a prudent course and discretion is better exercised by refusing the Injunction sought for. In more or less similar circumstances in a dispute between two religious heads, the trial Court having refused to grant an order of injunction to prevent the first defendant from entering into the sanctum sanctorum and offering worship, this Court refused to interfere with the said order. That was the decision of Santosh, J. to which I have referred to earlier in the case of Laxmimanojana v. Sujnandra. I must in the circumstances of the case follow with respect the said decision and decline to interfere with the finding by the Judge in the Court below refusing to continue the interim injunction.</h4><h4 style=\"text-align: justify;\">37. The last of the circumstance is the question of resultant injury to the plaintiff if injunction was refused. What does he suffer and what does he lose is the question. Even if he suffers something can he not be compensated is the other question. Adverting to the latter Sri Parthasarathy submitted that his client being a celibate monk neither looks forward to nor can he look forward to any requital monetarily. But the fact remains that althougn he may not want it, it is possible to compensate him by way of damages which may be just a token or a substantial sum depending on his volition. But that he may not avail the chance of compensating himself if he succeeds in getting a decree is not reason to hold that he had suffered presently an irreparable or uncompensatable Injury. In fact the submission of Mr. Parthasarathy that his client does not require any monetary compensation is taken to its logical end it only means that he has nothing to lose if he is denied the injunction unless it be the user of a room in the Mutt premises which even now he is said to use intermittently on some days in a week. But then if he has to exercise that right by walking into the premises surrounded by a contigent of the local police, one may well ask why at all he should indulge in an exercise he cannot perform as a free agent like any other human being. If his visit to the Mutt premises has to be organised in this manner and all that he does is to go and stay there now and then for a little while and that perhaps is because he has the key to the room still in his possession as stated before the Court below, it seems to me that expending of judicial authority for granting an injunction to the plaintiff just to enable him to make sporadic visits to the Mutt premises from his place of residence elsewhere therefore appears to be only a meaningless charade and does not really serve any useful purpose. He does not suffer any inconvenience by not visiting the Mutt and nor does he stand to gain anything by his occasional visits under heavy escort. Therefore, the exercise of discretion in favour of the plaintiff would be clearly pyrrhic unattended by any tangible rewards either to the plaintiff or to any one else.</h4><h4 style=\"text-align: justify;\">38. On the contrary these visits if done under the cover of the injunction might bring in some untoward results so far as the defendants are concerned and can well be avoided by declining to grant the injunction as the plaintiff himself benefits very little. Therefore, it is after analysing the case of the plaintiff vis-a-vis the legal requirements enjoined for consideration by a Court, it becomes clear that plaintiff satisfies none of them and that being also the view of the learned Judge, I must unhesitatingly concur with him. Before parting with this topic, I must advert to a submission made by Sri Parthasarathy, learned Counsel for the appellant, criticising the Judgment of the Court below on the ground that it had failed to make an order on terms, in that, even while declining to grant injunction it should have put the other side on terms, a step Counsel submits that would have been in tune with the decision of this Court in L.I.C. v. Bangalore LIC E.H.C.S. Ltd. referred to earlier. It is true in that Judgment I did say that granting of injunction should always be made on terms so that in the ultimate disposition it turns out that granting of the injunction was unwarranted, a person who suffered the injunction should not be driven to further litigation, to reimburse himself regards loss or damage sustained in consequence of that injunction. But then in the instant case the Court has refused the injunction and what the plaintiff suffers by non-grant is an aspect which generates a lot of scepticism and doubt, therefore in such circumstances if the Court below had merely refused the injunction and not taken the precaution of soft peddling that order further by imposing some terms on the defendants to make allowance for the contigent success of the plaintiff in the suit, I do not think that any criticism could be justly levelled against the Court of having committed a default under law. In that view of the matter, it becomes clear that the last-ditch attack on the learned Judge\'s order by the plaintiff has very little to commend itself and clearly deserves to be discarded.</h4><h4 style=\"text-align: justify;\">39. There is yet another reason why I should decline the injunction as the learned Judge in the Court below did. In the records there is reference to a charge-sheet filed by the Tumkur police against the plaintiff, no doubt after the institution of the suit, alleging the commission of an unnatural offence punishable under Section 377 IPC. It is a charge-sheet filed by the police of the Karnataka State and is clearly not a myth. Presently I am given to understand that plaintiff has been enlarged by the Court on bail. But the up-shot of the whole thing is that today he is facing a charge of extreme infamy wholly incongruent and inconsistent with his image as a religious head expected to minister to the spiritual needs of his flock. It would indeed be a curious spectacle if on the crest of an injunction granted by the Court the plaintiff first rides to a conclave of his laity to receive their obeisance and the very next moment is in the dock before the Criminal Court answering the charge of having committed an offence involving moral turpitude most unbecoming of a religious pontiff. Mr. Parthasarathy says his client had been framed falsely in a vile attempt to scandalise and to denigrate him in the eyes of the public at large. But whether it is that or otherwise the truth will come out only after trial and until then while nobody can say he is guilty it can still be said that he is accused of a blasphemous criminal offence and is facing a trial in that behalf. I need hardly add that the relief of injunction being a remedy in equity must be bestowed only on those whose reputation and hands are both spotlessly clean. If not anything else, at least this circumstance should over-ride all other considerations and must lead to the affirmation of the order of the Court below in refusing to continue the ex parte injunction granted by it.<br>40. Therefore, it is and for the reasons mentioned above, I affirm the order of the Court below and make an order dismissing this appeal. Costs herein will be costs in the cause and will abide by the final result in the suit.</h4><div style=\"text-align: justify;\"><br></div>', '42fd8b18c79bdeb5c492f49a866447b5.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1989-03-31', 1, '', '', '2021-02-22 20:45:26', '2021-02-23 00:36:36');
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(122, 'Ik9cYZgQbKuIP3qt32BhnQ537', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mohinder Singh Gill and  anr vs The Chief Election Commissioner New Delhi and anr ', '<h4 style=\"font-family: Rockwell, Corbel, \" museo=\"\" 500\",=\"\" helvetica,=\"\" arial;=\"\" font-size:=\"\" 14.4px;\"=\"\"></h4><h4 style=\"text-align: center;\"></h4><h2 style=\"text-align: center;\"><b>Mohinder Singh Gill & anr vs The Chief Election Commissioner, New Delhi and Ors. </b></h2><b style=\"font-size: 1.3125rem;\"><div style=\"text-align: center;\"><b style=\"font-size: 1.3125rem;\">AIR 1978 SC 851; 1978 (1) SCC 405 2</b></div></b><b><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\">Chief Justice BEG, M. HAMEEDULLAH </span></div></span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\">Justice KRISHNAIYER, V.R.</span></div></span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\">Justice BHAGWATI, P.N.</span></div></span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\">Justice GOSWAMI, P.K.</span></div></span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\">Justice SHINGAL, P.N.</span></div></span></b><h4 style=\"text-align: center;\"><div style=\"text-align: center;\"><br></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><div>Judgment - KRISHNA IYER, J.-What troubles us in this appeal, coming before a Bench of 5 Judges on a reference under Article 145(3) of the Constitution, is not the profusion of controversial facts nor the thorny bunch of lesser law, but the possible confusion about a few constitutional fundamentals, finer administrative normae and jurisdictional limitations bearing upon elections. What are those fundamentals and limitations? We will state them, after mentioning briefly what the writ petition, from which this appeal, by special leave, has arisen, is about, 279 The basics Every significant case has an unwritten legend and indelible lesson. This appeal is no exception, whatever its formal result. The message, as we will see at the end of the decision, relates to the pervasive philosophy of democratic elections which Sir Winston ChurchiU vivified in matchless words :</div><div>\"At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper-no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.\" If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men dressed in little, brief authority. For \'be you ever so high, the law is above you.</div><div>The moral may be stated with telling terseness in the words of William Pitt: \'Where laws end, tyranny begins\'.</div><div>Embracing both these mandates and emphasizing their combined effect is the elemental law and politics of Power best expressed by Benjamin Dizreeli:</div><div>\"I repeat that all power is a trust-that we are accountable for its exercise-that, from the people and for the people, all springs, and all must exist.\" (Vivien Grey, BK. VI. Ch. 7) Aside from these is yet another, bearings on the, play of natural justice, its nuances, non-applications, contours, colour and content. Natural Justice is no mystic testament of judge-made juristics but the pragmatic, yet principled, requirement of fairplay in action as the norm of a civilised justice-system and minimum of good government-crystallised clearly in our jurisprudence by a catena of cases here and elsewhere.</div><div>The conspectus of facts The historic elections to Parliament, recently held across the ,country, included a constituency in Punjab called 13- Ferozepore Parliamentary constituency. It consisted of nine assembly segments and the polling took place on March 16, 1977. According to the calendar notified by the Election Commission, the counting took place in respect of five assembly segments on March 20, 1977 and the, remaining four on the next day. The appellant and the third respondent were the principal contestants. It is stated by the appellant that when counting in all the assembly segments was completed at the respective segment headquarters, copies of the results were given to the candidates and the local tally telephonically communicated to the returning officer (respondent 2). According to the scheme the postal ballots are to arrive at the returning officer\'s headquarters at Ferozepore where they are to be counted. The final tally is made when the ballot boxes 280 and the returns duly reach the Ferozepore headquarters front the various segment headquarters. The poll proceeded as ordained, almost to the very last stages, but the completion of the counting at the constituency headquarters in Ferozepore was aborted at the final hour as the postal ballots were being counted-thanks to mob violence allegedly mobilised at the instance of the third respondent., The appellant\'s version is that he had all but won on the total count by a margin of nearly 2000 votes when the panicked opposite party havoced and halted the consummation by muscle tactics. The postal ballot papers were destroyed. The, ballot boxes from the Fazilka segment were also done away with en route, and the returning officer was terrified into postponing the declaration of the result. On account of an earlier complaint that the returning officer was a relation of the appellant, the Election Commission (hereinafter referred to as Commission) had: deputed an officer of the Commission-Shri IKK Menon-as observer of the poll process in the constituency. He was present as the returning officer who under compulsion had postponed the concluding 3 p.m.</div><div>onwards. Thus the returning officer had the company of the observer with him during the crucial stages and controversial eruptions in the afternoon of March 21.</div><div>Shortly after sunset, presumably, the returning officer who under compulsion had postponed the concluding part of the election, reported the happenings by wireless massage to the Election Commission. The observer also reached Delhi and gave a written account and perhaps an oral narration of the untoward events which marred what would otherwise have been a smooth finish Lo, the election.</div><div>Disturbed by the disruption of the declaratory part of the election, the appellant, along with a former Minister of the State, met the Chief Election Commissioner (i.e. the Commission) at about 10.30 A.M. on March 22nd, with the request that he should direct the returning officer to declare the result of the election. Later in the day, the Commission issued an order which has been characterised by the appellant as a law-less and precedentless cancellation, of the whole poll, acting by hasty hunch and without rational appraisal of facts. By the 22nd of_March, when the Election Commission made the impugned order, the bulk of the electoral results in the country bad beamed in. The gravamen of the grievance of the appellant is that while he had, in all probability, won the poll, he has been deprived of this valuable and hard-won victory by the arbitrary action of the Commission going contrary to fairplay and in negation of the basic canons of natural justice. Of course the Commission did not stop with the cancellation but followed it up a few days later with a direction to hold a fresh poll_for the whole constituency, involving all the nine segments, although there were no complaints about the polling in any of the constituencies and the ballot papers of eight constituencies were available intact with the returning officer and only Fazilka segment ballot papers were destroyed or demanded on the way, (plus the postal ballots). It must also, be mentioned here that a demand was made, according to the version, of the third respondent, for recount in one segment which was,, 281 unreasonably, turned down. The observer, in his report to the Election Commission, also mentioned that in two polling stations divergent practices were adopted in regard to testing valid and invalid votes. To be more pracise, Shri IKK Menon mentioned\' in his report that at polling station no. 8, the presiding officer\'s seal on the tag as well as the paper seal of one box was broken. But the ballot papers contained in that box were below 300 and would not have affected the result in the normal course. In another case in Jalalabad assembly segment, the assistant returning officer had rejected a number of ballot papers of a polling station on the score that they were not signed by the presiding officer. In yet another case it was reported that the ballot papers were neither signed nor stamped but were accepted by the assistant returning officer as valid, al- though the factum was not varified by Shri Menon with the assistant returning officer. Shri Menon, in his report, seems to have broadly authenticated the story of the mob creating a tense situation leading to the military being summoned. According to him only the ballot papers of Fazilka assembly segment were destroyed, not of the. other segments. Even regarding Fazilka, the result-sheet had arrived. So, far as Zira assembly segment was concerned, some documents (not the, ballot papers) had been snatched away by hooligans. The observer had asked the returning officer to send a detailed report over and above the wireless message. That report, dated March 21, reached the Commission on March 23, but, without waiting for the, report we need not probe the reasons for the hurry-the Commission issued the order cancelling the poll. The Chief Election Commissioner has filed a laconic affidavit leaving to the Secretary of the Commission to go into the details of the facts, although the Chief Election Commissioner must himself have had them within his personal ken. This aspect also need not be examined by us and indeed cannot be, for reasons which we will presently set out.</div><div>Be that as it may, the Chief Election Commissioner admitted in his affidavit that the appellant met him in his office on the morning of March 22, 1977 with the request that the returning officer be directed to declare the result. He agreed to consider and told him him off,, and eventually passed an order as mentioned above. The then Chief Election Commissioner has mentioned in his affidavit that the observer Shri Menon had apprised him of \"the various incidents and developments regarding the counting of votes in the constituency\" and also had submitted a written report. He has also admitted the receipt of the wireless message, of the returning officer. He concludes his affidavits \'that after taking all these circumstances and information including the oral representation of the 1st petitioner into account on \"2nd Much, 1977 itself I passed the order cancelling the poll in the said Parliamentary constituency. In my view this was the only proper course to adopt in the circumstances of the case and with a view to ensuring fair and free elections, particularly when even a recount bad been rendered impossible by reason of the destruction of ballot papers.\' The order of the Election Commission, resulting in the demolition of the poll already held, may be read at this stage.</div><div>282 \"ELECTION COMMISSION OF INDIA New Delhi Dated 22 March, 1977 Chaitra 1, 1899 (SAKA) NOTIFICATION S.O.-Whereas the Election Commission has received reports from the Returning Officer of 13-Ferozepore Parliamentary Constituency that the counting on 21 March, 1977 was seriously disturbed by violence; that the ballot papers of some of the assembly segments of the Parliamentary constituency have been destroyed by violence; that as a consequence it is not possible to complete the counting of the votes in the constituency and the declaration of the result cannot be made with any degree of certainty:</div><div>And whereas the Commission is satisfied that taking all circumstances into account, the poll in the constituency has been vitiated to such an extent as to effect the result of the election;</div><div>Now, therefore, the Commission, in exercise of the powers vested in it under Article 324 of the Constitution, Section 153 of the, Representation of the People Act, 1951 and all other powers enabling it so to do, cancels the poll already taken in the constituency and extends the time for the completion of the election up to 30 April, 1977 by amending its notification No. 464/77, dated 25 February, 1977 in respect of the above election as follows :- In clause (d) of item (i) of the said notification, relating to the completion of election- (a) in the existing item (i), after the words \"State of Jammu and Kashmir\", the words \"and 13-Ferozepur Parliamentary constituency in the State of Punjab\" shall be inserted; and (b) The existing item (ii) shall be renumbered as item (iii), and before the item (iii) as so renumbered, the following item shall be inserted, namely :- \"(iii) 30 April 1977 (Saturday) as the date before which the election shall be completed in \"13Ferozepur Parliamentary constituency in the State of Punjab.\" [464/77] By order Sd/- A. N. Sen, Secretary The Commission declined to reconsider his decision when the appellant pleaded for it. Shocked by the liquidation of the entire poll, the latter moved the High Court under Article 226 and sought to void the order as without jurisdiction and otherwise arbitrary and violative of any vestige of fairness. He was met by the objection, successfully urged by the respondents 1 and 3, that the High Court 283 -had no jurisdiction in view of Article 329(b) of the Constitution and the Commission had acted within its wide power under Article 324 and fairly. Holding that it had no jurisdiction to entertain the writ petition. the High Court never-the-less ]proceeded to enter verdicts on.the merits of all the issues virtually exercising even the entire ,jurisdiction which exclusively belonged to the Election Tribunal. The doubly damnified appellant has come up to this Court in appeal by special leave.</div><div>Meanwhile, pursuant to the, Commission\'s direction, a re- poll was held. Although the appellant\'s name lingered on the ballot he did not participate in the re-poll and respondent 3 won by an easy plurality although numerically those who voted were less than half of the, previous poll.</div><div>Of course, if the Commission\'s order for re-poll fails in law, the second electoral exercise has to be dismissed as a stultifying futility. Two things fall to be mentioned at this stage, but, in passing, it may be stated that the third respondent had complained to the Chief Election Commissioner that the assistant returning officer of Fazilka segment had declined the request for recount unreasonably and that an order for re-poll of the Fazilka assembly part should be made \'after giving personal hearing\'. Meanwhile, runs the request of the third respondents \'direct the returning officer to withhold declaration of result of 13 Ferozepore parliament constituency\'. We do not stop to make inference from this document but refer to it as a material factor which may be considered by the tribunal which, eventually, has to decide, the factual controversy.</div><div>The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought ,out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (1) \"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.\" Orders are not like old wine becoming better as they grow older:</div><div>A Caveat.</div><div>We must, in limine, state that-anticipating our decision on the blanket ban on litigative interference during the process of the election, clamped down by Article 329(b) of the Constitution-we do not propose to enquire into or pronounce upon the factual complex or the (1) A.I.T. 1952 S.C. 16.</div><div>284 lesser legal tangles, but only narrate the necessary circumstances of the case to get a hang of the major issues which we intend adjudicating. Moreover, the scope of any actual investigation in the event of controversion in any petition under Article 226 is ordinarily limited and we have before us an appeal from the High Court dismissing a petition under Article 226 on the score that such a proceeding is constitutionally out of bounds for any court, having regard to the mandatory embargo. in Article329(b).</div><div>We should not,except in exceptional circumstances, breach the recognised, though not inflexible, boundaries of Article 226 sitting in appeal, even assuming the maintainability of such a petition. Indeed, we should have expected the High Court to have considered the basic jurisdictional issue first, and not last as it did, and avoided sallying forth into a discussion and decision on the merits, self-contra- dicting its own holding that it had no jurisdiction even to entertain the petition. The learned Judges observed :</div><div>\"It is true that the submission at serial No.</div><div>3 above in fact relates to the preliminary objection urged on behalf of respondents 1 and 3 and should normally have been dealt with & St but since the contentions of the parties on submission No. 1 are inter-mixed with the interpretation of Article 329(b) of the Constitution, we thought it proper to deal with them in the order in which they have been made.\" This is hardly a convincing alibi for the extensive per incuriam examination of facts and law gratuitously made by the Division Bench of the High Court, thereby generating apprehensions in the appellant\'s mind that not only is his petition not maintainable but he has been damned by damaging findings on the merits. We make it unmistakably plain that the election court hearing the dispute on the same subject under section 98 of the R.P. Act, 1951 (for short, the Act) shall not be moved by expressions of opinion on the merits made by the Delhi High Court while dismissing the writ petition. An obiter binds none, not even the author, and obliteration of findings rendered in supererogation must alley the appellant\'s apprehensions. This Court is in a better position than the High Court, being competent, under certain circumstances, to declare the law by virtue of its position under Article 141. But, absent such authority or duty, the High Court should have abstained from its generosity. Lest there should be any confusion about possible slants inferred from our synoptic statements, we clarify that nothing projected in this judgment is intended to be an expression of our opinion even indirectly. The facts have been set out only to serve as a peg to hang three primary constitutional issues which we will formulate a little later.</div><div>Operation Election Before we proceed further, we had better have a full glimpse of tie, constitutional scheme of elections in our system and the legislative follow-up regulating the process of election. Shri Justice Mathew in lndira Nehru Gandhi(1) summarised skeletal fashion, this scheme (1) [1976] 2 S.C.R. 347 285 following the pattern adopted by Fazal Ali, J. in Ponnuswami. [1952] INSC 2; 1952 SCR 218. He explained :</div><div>\"The concept of democracy as visualised by the Constitution presupposes the representation of the people in Parliament and state legislatures by the method of election. And, before an election machinery can be brought into operation, there are three requisites which require to be attended to, namely, (1) there should be a set of laws and rules making provisions with respect to all matters relating to, or in connection with, elections, and it should be decided as to how these laws and rules are to be made; (2). there should be an executive charged with the duty of securing the due conduct of elections; and (3) there should be a judicial tribunal to deal with disputes arising out of or in connection with elections. Articles 327 and 328 deal with the first of these requisites, article 324 with the second and article 329 with the third requisite (see N. P. Ponnuswami v. Returning Officer, Nanmakkal Constituency & Ors. [1952] INSC 2; 1952 SCR 218, 229). Article 329 (b) envisages the challenge to an election by a petition to be presented to such authority as the Parliament may, by law, prescribe. A law relating to election should contain the requisite qualifications for candidates, the method of voting, definition of corrupt practices by the candidates and their election agents, the forum for adjudication of election disputes and other cognate matters. It is on the basis of this law that the question determined by the authority to which the petition is presented. And, when a dispute is raised as regards the validity of the election of a particular candidate, the authority entrusted with the task of resolving the dispute must necessarily exercise, a judicial function, for, the process consists of ascertaining the facts relating to the election and applying the law to the facts so ascertained.\" A short description of the legislative project in some more detail may be pertinent, especially touching on the polling process in the booths and the transmission of ballot boxes from the polling stations to the returning officer\'s ultimate counting station and the crucial prescriptions regarding annuoncements and recounts and declarations. We do not pronounce upon the issues regarding the stage for and right of recount. the validity of votes or other factual or legal disputes since they fall for decision by the Election Court where the appellant has filed an election petition by way of abundant caution.</div><div>A free and fair election based on universal adult franchise is the basic; the regulatory procedures vis-a-vis the repositories of functions and the distribution of legislative, executive and judicative roles in the total scheme, directed towards the holding of free elections, are the specifics. Part XV of the Constitution plus the Representation of the People Act, 1950 (for short, the 1950 Act) and the Representation of the People Act, 1951 (for short, the Act), Rules framed there under, instructions issued and exercises prescribed, constitute the package of 286 electoral law governing the parliamentary and assembly elections in the country. The super-authority is the Election Commission, the kingpin is the returning officer, the minions are the presiding officers in the polling stations and the electoral engineering is in conformity with the elaborate legislative provisions.</div><div>The scheme is this. The President of India (Under Section 14) ignites the general elections across the nation by calling upon the People, divided into several constituencies and registered in the electoral rolls, to choose their representatives to the Lok Sabha. The constitutionally appointed authority, the Election Commission, takes over the whole conduct and supervision of the mammoth enterprise in- volving a plethora of details and variety of activities, and starts off with the notification of the time table for the, several stages of the election (Section 30). The assembly line operations then begin. An administrative machinery and technology to execute these enormous and diverse jobs is fabricated by the Act, creating officers, powers and duties, delegation of functions and location of polling stations.</div><div>The precise exercise following upon the calendar for the poll, commencing from presentation of nomination papers, polling drill and telling of votes,, culminating in the declaration and report of results are covered by specific prescriptions in the Act and the rules. The secrecy of the ballot, the authenticity of the voting paper and its later identifiability with reference to particular polling stations, have been thoughtfully provided for. Myriad other matters necessary for smooth elections have been taken care of by several provisions of the Act.</div><div>The wide canvas so spread need not engage us sensitively, since such diffusion may weaken concentration on the few essential points concerned in this case. One such aspect relates to repoll. Adjournment of the poll at any polling station in certain emergencies is sanctioned by section 57 and fresh poll in specified vitiating contingencies is authorised by section 58. The rules run into more particulars. After the votes are cast comes their counting.</div><div>Since the simple plurality of votes clinches the verdict, as the critical moment approaches, the situation is apt to hot up, disturbances erupt and destruction of ballots disrupt.</div><div>If disturbance or destruction demolishes the prospect of counting the total votes, the number secured by each candidate and the ascertainment of the will of the majority, a re-poll confined to disrupted polling stations is provided for. Section 64A chalks out the conditions for and course of such repoll, spells out the power, and repository thereof and provides for kindred matters. At this stage we may make a closer study of the provisions regarding repoll systematically and stagewise arranged in the Act. It is not the case of either side that a total repoll of an entire constituency is specificated in the sections or the rules.</div><div>Reliance is placed for this wider power upon Article 324 of the Constitution-by the Commission in its order, by the first respondent in his affidavit, by the learned Additional Solicitor General in his argument and by the third respondent through his counsel. We may therefore have to study the scheme of. article 324 and the provisions of the, Act together since they are integral to each other. Indeed, if we may mix metaphors for emphasis, the legislation made pursuant to Article 327 and that part of the Constitution specially devoted to elections must be 287 viewed as one whole picture, must be heard as an orchestrated piece and must be interpreted as one package of provisions regulating perhaps the most stressful and strategic aspect of democracy-in-action so dear to the nation and so essential for its survival.</div><div>The lis and the issues Two prefatory points need to be mentioned as some reference was made to them at the bar. Firstly, an election dispute is not like an ordinary lis between private parties. The entire electorate is vicariously, not inertly, before the court. (See [1958] INSC 45; 1959 SCR 611, 616, 622). We may, perhaps, call this species of cases collective litigation where judicial activism assures justice to the constituency, guardians the purity of the system and decides the rights of the candidates. In this class of cases, where the common law tradition is partly departed from, the danger that the active judge may become, to some extent, the prisoner of his own prejudices exists; and so, notwithstanding his powers of initiative, the parties\' role in the formulation of the issues and in the presentation of evidence and argument should be substantially maintained and- care has to be taken that the circle does not become a vicious one, as pointed out by J.A. Jolowicz in. \'Public Interest Parties and the Active Role of the Judge in Civil Litigation\' (ss. p. 276).</div><div>Therefore, it is essential that courts, adjudicating upon election controversies, must play a verily active role, conscious all the time that every decision rendered by the Judge transcends private rights and defends the constituency and the democracy of the country.</div><div>Secondly, the pregnant problem of power and its responsible exercise is one of the perennial riddles of many a modern constitutional order. Similarly, the periodical process of free and fair elections. uninfluenced by the caprice, cowardices or partisanship of hierarchical authority holding it and unintimidated by the threat, tantrum or vandalism of strong-arm tactics, exacts the embarrassing price of vigilant monitoring. Democracy digs its grave where passions, tensions and violence, on an overpowering spree, upset results of peaceful polls, and the law of elections is guilty of sharp practice if it hastens to legitimate the fruits of lawlessness. The judicial branch has a sensitive responsibility her to call to order lawless behaviour.</div><div>Forensic non-action may boomerang, for the court and the law are functionally the bodyguards of the People against bumptious power, official or other.</div><div>We now enter the constitutional zone relating to the controversy in this case. Although both sides have formulated the plural problems with some divergence, we may compress them into three cardinal questions :</div><div>1.Is Art. 329(b) a blanket ban on all manner of questions which may have impact on the ultimate result of the election, arising between two temporal termini viz., the notifi- cation by the President calling for the election and the declaration of the result by the returning officer ? Is Art. 226 also covered by this embargo and. if so, is s. 100 broad enough to accommodate every kind of objection, constitutional, legal or factual, which may have the result of invalidation of an 288 election and the declaration of the petitioner as the returned candidate and direct the organisation of any steps necessary to give full relief ? 2.Can the Election Commission, clothed with the comprehensive functions under Article 324 of the Constitution, cancel the whole poll of a constituency after it has been held, but before the formal declaration of the result has been made, and direct a fresh poll without reference to the guidelines under ss. 58 and 64(a) of the Act, or other legal prescription or legislative backing. If such plenary power exists, is it exercisable on the basis of his inscrutable \'subjective satisfaction\' or only on a reviewable objective assessment reached on the basis of circumstances vitiating a free and fair election and warranting the stoppage of declaration of the result and directions of a fresh poll not merely of particular polling stations but of the total constituency ? 3.Assuming a constitutionally vested capacity tinder Art. 324 to direct re-poll, is it exercisable only in conformity with natural justice and geared to the sole goal of a free, popular verdict if frustrated on the first occasion ? Or, is the Election Commission immune to the observance of the doctrine of natural justice on account of any recognised exceptions to the application of the said principle and unaccountable for his action even before the Election Court ? The juridical aspect of these triple questions alone can attract judicial jurisdiction. However. even if we confine ourselves to legal problematics, eschewing the political overtones, the words of Justice Holmes will haunt the Court : \"We are quiet here, but it is the quiet of a storm centre.\" The judicature must, however. be illumined in its approach by a legal sociological guidelines and a princi- pled-pragmatic insight in resolving, with jural tool and techniques s ,ind techniques. \'the various crises of human affairs\' as they reach the forensic stage and seek dispute- resolution in terms of the rule of law. Justice Cordozo felicitously set the perspective \"The great generalities of the Constitution have at content and significance that vary from age to age.\" Chief Justice Hidayatullah perceptively articulated the insight \"One must, of course, take note of the synthesized authoritative content or the moral meaning of the underlying\' principle of the, prescriptions of law, but not ignored the historic revolution of the, law itself or how it was connected in its changing moods with social requirements of a particular age.</div><div>(Judicial Methods, B. N. Rau Memorial Lecture) The old articles of the supreme lex meet new challenges of life, the old legal pillars suffer new stresses. So we have to adopt the law and develop its latent capabilities if novel situations, as here, are encountered. That is why in the reasoning we have adopted and the 289 perspective we have projected, not literal nor lexical but liberal and visional is our interpretation of the Articles of the Constitution and the provisions of the Act. Lord Denning\'s words are instructive \"Law does not stand still. It moves continually. Once; this is recongnised, then the task of the Judge is put on a higher plane. He must consciously seek to mould the law so as to serve the needs of the time. He must not be a mere, mechanic, a mere working mason, laying brick on brick, without thought to the overall design. He must be an archi- tect-thinking of the structure as a whole building for society a system of law which is strong, durable and just. It is on his work that civilised society itself depends.\" The invulnerable barrier of Art.329 (b).</div><div>Right at the forefront stands in the way of the appellant\'s progress the broad-spectrum ban of Article 329(b) which, it is claimed for the respondents, is imperative and goal- oriented. Is this Great Wall of China, set up as a preliminary bar, so impregnable that it cannot be by passed even by Art. 226 ? That, in a sense, is the key question that governs the fate of this appeal. Shri P. P. Rao for the appellant contended that, however, wide Art. 329(b) may be, it does not debar proceedings challenging, not the steps promoting election but dismantling it, taken by the Commission without the backing of legality. He also urged that his client, who had been nearly successful in the poll and had been deprived of it by an illegal cancellation by the Commission, would be left in the cold without any remedy since the challenge to cancellation of the completed poll in the entire constituency was not covered by s. 1 00 of the Act. Many subsidiary pleas also were put forward but we will focus on the two inter-related submissions bearing on Art. 329(b) and s. 100 and search for a solution. The problem may seem prickly but an imaginative application of principles and liberal interpretation of the constitution and the Act will avoid anomalies and assure justice. if we may anticipate our view which will presently be explained, section 100 (1 ) (d) (iv) of the Act will take care of the, situation present here, being broad enough, as a residual provision, to accommodate, in expression \'non-compliance\', every excess, transgression, breach or omission. And the spen of the, ban under Art. 329(b) is measured by the sweep of s. 100 of the Act.</div><div>We have to proceed heuristically now. Article 329(b) reads Notwithstanding anything in this Constitution \"(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be Provided for by or under any law made by the appropriate Legislature.\" Let us break down the prohibitory provision into its components. The sole remedy for an aggrieved party, if he wants to challenge any election, is an election petition.</div><div>And this exclusion of all other remedies 290 includes constitutional remedies like Art. 226 because of the nonobstante clause. If what is impugned is an election the ban operates provided the proceeding \'calls it in question\' or puts it in issue: not otherwise. What is the high policy animating this inhibition\'? Is there any interpretative alternative which will obviate irreparable injury and permit legal contests in between? How does S.</div><div>100 (1) (d) (iv) of the Act integrate into the scheme? Let us read s. 100 here :</div><div>\"Subject to the provisions of sub-section (2) if the High Court is of opinion- x x x (d)that the result of the election, in so far as it concerns a returned candidate, has been materially affected- x x x (iv) by any non-compliance with the provisions of the Constitution or of the Act or of any rules or orders made under this Act the High Court shall declare the election of the returned candidate to be void.</div><div>The companion provision, viz., s. 98 also may be extracted at this,star, :</div><div>\"At the conclusion of the trial of an election petition the High Court shall make an order- (a) dismissing the election petition; or (b) declaring the election all or any of the returned candidates to be void; or (e) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected.\" Now arises the need to sketch the scheme of s. 1 00 in the setting of Art.329(b). The troublesome word \'non- compliance\' holds in its fold a teleologic signification which resolves the riddle of this case in, a way. So we will address, ourselves to the meaning of meanings the values within the words and the \'project unfolded\'. This will be taken up one after the other.</div><div>At the first blush we get the comprehensive impression that every calling in question of an election save, at the end, by an election petition, is forbidden. What, then, is an election ? What is \'calling in question ? Every step from start to finish of the total process constitutes \'election\', not merely the conclusion or culmination. Can the cancella- tion of the entire poll be called a step in the process and for the progress of an election, or is it a reverse step of undoing what has been done in the progress of the election, non-step or anti-step setting at nought the process and, therefore, not a step towards the goal and hence liberated from the coils of Art. 329(b) ? And, if this act or step were to be shielded by the constitutional provision, what is an aggrieved party to do 9 This takes us to the enquiry about the ambit of S. 100 of the Act and the object of Art.</div><div>329 (b) read with Art. 324. Such is the outline of the complex issue projected before us.</div><div>291 \'The election philosophy and the principle in Ponnuswami Democracy is government by the people. It is a continual participative operation, not a cataclysmic, periodic exercise. The little man, in his multitude, marking his vote at the poll does a social audit of his Parliament plus political choice of his proxy. Although the full flower of participative Government rarely blossoms, the minimum credential of popular government is appeal to the people after every term for a renewal of confidence. So. we have adult franchise and general elections as constitutional compulsions. \'The right of election is the very essence of the constitution\' (Junius). It needs little argument to hold that the heart of the Parliamentary system is free, and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more.</div><div>Ponnuswami is a landmark case in election laws and deals with the scope, amplitude, rationale and limitations of Art.</div><div>329(b). its ratio has been consistently followed by this Court in several rulings through Durga Shankar Mehta (1) and Hari Vishnu Kamath and Khare (2) down to Indira Gandhi(3).</div><div>The factual setting in that case may throw some light on the decision itself. The appellant\'s nomination for election to the Madras Legislative Assembly was rejected by the Returning Officer and so he hurried to the High Court praying for a writ of certiorari to quash the order of rejection, without waiting for the entire elective process to run its full course and, at the end of it, when the results also were declared, to move the election tribunal for setting aside the result of the election conducted without his participation. He thought that if the election proceeded without him irreparable damage, would have been caused and therefore sought to intercept the progress of the election by filing a writ petition. The High Court dismissed it as unsustainable, thanks to Art. 329(b) and this court in appeal, affirmed that holding. Fazal Ali, J.</div><div>virtually spoke for the Court and explained the principle underlying Art. 329(b). The ambit and spirit of the bar imposed by the Article was elucidated with reference to the principle that \'it does not require much argument to show that in a country with a democratic constitution in which the legislatures have to play a very important role, it will lead to serious consequences if the elections are unduly protracted or obstructed.\' In the view of the, learned Judge, immediate individual relief at an intermediate stage when the process of election is under way has to be sacrificed for the paramount public good of promoting the completion of elections. Fazal Ali, J. ratiocinated on the ineptness of. interlocutory legal bold-ups. He posed the issue and answered it thus :</div><div>\"The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under article 226 of-the Constitution (the ordinary (1) [1955] 1 S. C. R. 267 (2) [1954] INSC 122; [1955] 1 S.C.R. 1104.</div><div>(3) [1976] 2 S.C.R. 347.</div><div>6-1114SCI/77 292 jurisdiction of the courts having been expressly excluded), and another after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which, as I shall point out later, seems to. be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an \'intermediate stage before any court. It seems to me that under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to Call the election in question. Article 329(b) was apparently enacted to describe the manner in which end the stage at which this ground, and other grounds which may be raised under the law to call the election in question, could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any are rectified, there will be no meaning in enacting a provision like Article 329(b) and in setting up a special tribunal.</div><div>Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre- polling stage and by the election tribunal, which is to be an, independent body, at the stage when the matter is brought before it.</div><div>Having thus explained the raison d\'etre of the provision, the Court proceeded to interpret the concept of election in the scheme of Part XV of the Constitution and the Representation of the People Act, 1951. Articles 327 and 328 take care of the act of laws and rules making provisions with respect to all matters relating to or in connection with, elections.\' Election disputes were also to be provided for by laws made under Article 327. The Court emphasised that Part XV of the Constitution was really a code in itself, providing the entire ground work for enacting the appropriate laws and setting up suitable machinery for the conduct of elections. The scheme of the Act enacted- by Parliament was also set out by Fazal Ali, J.\' \"Part VI deals with disputes regarding elections and provides for the manner of presentation of election petitions, the constitution of election tribunals and the trial of election petitions part VII outlines the various corrupt and illegal practises which may affect the elections, and electoral offences. Obviously, the Act is self- contained enactment so far as elections are concerned, which means that whenever we have to ascertain the true position in regard to any matter connected made thereunder. The provisions of the Act which are material to the present discussion are sections 60, 100, 105 and with elections, we have only to look at the Act and the rules 293 170, and the provisions of Chapter 11 of Part IV dealing with the form of election petitions , their contents and the reliefs which may be sought in them. Section 80, which is drafted in almost the same language as article 329(b) provides that ,no election shall be called in question except by an election petition presented in accordance with the provisions of this Part\'. Section 1 00, as we have already seen, provides for the grounds on which an election may be called in question, one of which is the improper rejection of a nomination paper, Section 105 says that \'every order of the Tribunal made under this Act shall be final and conclusive. Section 170 provides that \'no civil court shall have jurisdiction to question the legality of any action taken or of any decision given by the Returning Officer or by any other person appointed under this Act in connection with an election. \" There have been amendments to these provisions but the profile remains substantially the same. After pointing out that the Act,- in section 80, and the Constitution, in article 329(b), speak substantially the same language and inhibit other remedies for election grievances except through the election tribunal, the Court observed \"That being so, I think it will be a fair inference from the provisions of the Representation of the People Act to state that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage.\" There is a non-obstante clause in Article 329 and, therefore, Article 22.6 stands pushed out where the dispute takes the form of calling in question an election, except in special situations pointed out but left unexplored in Ponnuswami.</div><div>The heart of the matter is contained in the conclusions summarised by the Court thus :</div><div>\"(1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.</div><div>(2)In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the \"election\"; and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the \"election\" and enable the person effected to call it in question, they should be brought so before a special tribunal by means of an election petition 294 and not be made the subject of a dispute before any court while the election is in progress.\" After elaborately setting out the history in England and in India election legislation vis- a-vis dispute-resolution, Fazal Ali J. stated \"If the language used in article 329(b) is considered against this historical background, it should not be difficult to see why the framers of the Constitution framed that provi- sion in its present form and chose the language which had been consistently used in certain earlier legislative provisions and which bad stood the test of time.\" Likewise the Court discussed the, connotation , of the expression election\' in Article 329 and observed :</div><div>\"That word has by long usage in connection with the process of selection of proper representatives in democratic institutions, acquired both a wide and a narrow meaning. In the narrow sense, it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide, sense, the word is used to connote the entire process culminating in a candidate being declared elected. it seems to me that the word \"election \" has been used in Part XV of the Constitution in the wide sense, that to say to connote the entire procedure, to be gone through to return a candidate to the legislature. That the word \"election\" bears this wide meaning wheneverwe talk of elections in a democratic country, is borne out bythe fact that in most of the books on the subject and in several cases dealing with the matter, one of the questions mooted is, when the election begins The rainbow of operations, covered by the compendious expression election, thus commences from the initial notification and culminates in the declaration of the return of a candidate,. The paramount policy of the Constitution-framers in declaring that no election shall be called in question except the way it is provided for in Article 329 (b) and the Representation of the People Act, 1951, compels us to read, as Fazal Ali, J. did in Pannuswami, the Constitution and the Act together as an integral scheme. The reason for postponement of election litigation to. the post-election stage is that elections poll not unduly be protracted or obstructed. The speed and promptitude in getting due representation for the electors in the- legislative bodies is the real reason suggested in the course of judgment.</div><div>Thus for everything is clear. No litigative enterprise in the High Court or other court should be allowed to hold up the on-going electoral process because the parliamentary representative for the constituence should be chosen promptly. Article 329 therefore covers \"electoral matters\".</div><div>One interesting argument, urged without success in Ponnuswami elicited a reasoning from the Court which has some bearing on the question in the present appeal. That argument was that if nomina- 295 tion was part of election a dispute as to the validity of the nomination was a dispute relating to election and could be called in question, only after the whole election was over, before the election tribunal. This meant that the Returning Officer could have no jurisdiction to decide the validity of a nomination, although section 36 of the Act conferred on him that jurisdiction. The learned Judge dismissed this argument as without merit, despite the great dailectical ingenuity in the submission. In this connection the learned Judge observed \"Under section 36 of the Representation of the People Act, 1951, it is the duty of the Returning Officer to scrutinize the nomination papers to ensure that they comply with the requirements of, the Act and decide all objections which be made to any nomination.</div><div>It is clear that unless this duty is discharged properly, any number of candidates may stand for election without complying with the provisions of the Act and a great deal of confusion may ensue. In discharging the statutory duty imposed on him, the Returning Officer does not call in question any election. Scrutiny of nomination papers is only a stage, though an important stage, in the election process. It is one of the essential duties to be performed before the election can be completed, and anything done towards the completion of the election proceeding can by no stretch of reasoning be described as questioning the election. The fallacy of the argument lies in treating a single step taken in furtherance of an election as equivalent to election. The decision of this appeal however turns not on the construction of the single word \"election\", but on the construction of the compendious expression-no election shall be called in question\" in this context and setting with due regard to the scheme of Part XV of the Constitution and the Representation of the People Act, 1951. Evidently, the argument has no, bearing on this method of approach to the question posed in this appeal, which appears to me the only correct method.\" What emerges from this perspicacious reasoning, if we may say so with great respect, is that any decision sought and rendered will not amount to \'calling in question\' an election if it subserves the progress of the election and facilitates the completion of the election. \'Ale should not slur over the quite essential observation \"-Anything done towards the completion of the election proceeding can by no stretch of reasoning be described as questioning the election. Likewise, it is fallacious to treat \'a single step taken in furtherance of an election as equivalent to election\'.</div><div>Thus, there are two types of decisions, two types of challenges. The first relates to proceedings which interfere with the progress of the election. The second accelerates the completion of the election and acts in furtherance of an election. So, the short question before us, in the light of the illumination derived from Ponnuswami, is as to whether the order for re-poll of the Chief Election Commissioner is \"anything done towards the completion of the election proceeding\' and whether the proceedings before the High Court facilitated the election process or halted its progress. The question immediately arises as to whether 296 the relief sought in, the writ petition by the present appellant amounted to calling in question the election.</div><div>This, in turn, revolves round the point as to whether the cancellation of the poll and the reordering of fresh poll is \'part of election\' and challenging it is \'calling it in question.</div><div>The plenary bar of Art. 329 (b) rests on two principles :</div><div>(1) The peremptory urgency of prompt engineering of the whole election process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between the commencement and the conclusion. (2) The provision of a special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other form, the right and remedy being creatures of statutes and controlled by the Constitution. Durga Shankar Mehta(1) has affirmed this position and supplemented it by holding that, once the Election Tribunal has decided, the prohibition is extinguished and the Supreme Court\'s over-all power to interfere under Art. 136 springs into, action. In Hari Vishnu(2) this Court upheld the rule in Ponnuswami excluding any proceeding, including one under Art. 226, during the on- going process of election, understood in the comprehensive sense of notification down to declaration. Beyond the declaration comes the election petition, but beyond the decision of the Tribunal the ban of Art. 329(b) does not bind.</div><div>If \'election\' bears the larger connotation, if \'callinng in question\' possesses a semantic sweep in plain English, if policy and principle are tools for interpretation of statutes, language permitting the conclusion is irresistible\' even though the argument contra may have emotional impact and ingenious appeal, that the catch-all jurisdiction under Art. 226 cannot consider the correctness, legality or otherwise of the direction for cancellation integrated with re-poll. For, the prima facie purpose of such a re-poll was to restore a detailed Poll process and to, complete it through the salvationary effort of a repoll.</div><div>Whether in fact or law, the order is validly made within his powers or violative of natural justice can be examined later by the appointed instrumentality, viz., the Election Tribunal. That aspect will be explained presently. We proceed on the footing that re-poll in one polling station or it many polling stations for good reasons, is lawful.</div><div>This shows that re-poll in many or all segments, all- pervasive or isolated, can be lawful. We are not considering whether the act was bad for other reasons. We are concerned only to say that if the regular poll, for some reasons, has failed to reach the goal of choosing by plurality the returned candidate and to achieve this object a fresh poll (not a new election) is needed, it may still be a step in the election.- The deliverance of Dunkirk is part of the strategy of counter-attack. Wise or valid, is another matter.</div><div><br></div><div><div>On the assumption, but leaving the question of the validity of the direction for re-poll soon for determination by the Election Tribunal, we hold that a writ petition challenging the cancellation coupled with re-poll amounts to calling in question a step in \'election! and is there, fore barred by Art. 329(b). If no re-poll had been directed the legal perspective would have been very different. The mere cancel- (1) [1955] 1 S.C.R. 267.</div><div><br></div><div>(2) [1954] INSC 122; [1955] 1 S.C.R. 1104.</div><div><br></div><div>297 lation would have then thwarted the course of the election and different considerations would have come into play. We need not chase a hypothetical case.</div><div><br></div><div>Our conclusion is not a matter of textual interpretation only but a substantial assurance of justice by reading s.</div><div><br></div><div>100 of the Act as covering the whole basket of grievances of the candidates. Sri P. P. Rao contended that the Court should not deny relief to a party in the area of elections which are the life-breath of democracy and people\'s power.</div><div><br></div><div>We agree.</div><div><br></div><div>This dilemma does not arise in the wider view we take of s.</div><div><br></div><div>100 (1) (d) (iv) of the Act. Sri Rao\'s attack on the order impugned is in substance based on alleged non-compliance with a provision of the Constitution viz., Art. 324 but is neatly covered by the widely-worded, residual catch-all clause of s. 100. knowing the supreme significance of speedy elections in our system the framers of the Constitution have, by implication, postponed all election disputes to election petitions and tribunals. In harmony with this scheme s. 100 of the Act has been designedly drafted to embrace all conceivable infirmities which may be urged. To make the project fool-proof s. 100(1) (d) (iv) has been added to absolve everything left over. The Court has in earlier rulings pointed out that s. 100 is exhaustive of all grievances regarding an election. But what is banned is not anything whatsoever done or directed by the Commissioner but everything he does or directs in furtherance of the election, not contrariwise. For example, after the President notifies the nation on the holding of elections under s. 15 and the Commissioner publishes the calendar for the poll under s. 30, if the latter orders returning officers to accept only one nomination or only those which come from one party as distinguished from other parties or independents, is that order immune from immediate attack.</div><div><br></div><div>We think not. Because the Commissioner is preventing an election, not promoting it and the courts review of that order will facilitate the flow, not stop the stream.</div><div><br></div><div>Election, Wide or narrow be its connotation, means choice from a possible plurality monolithic politics not being our genius or reality, and if that concept is crippled by the Commissioner\'s act, he holds no election at all.</div><div><br></div><div>A poll is part-a vital part-of the election but with the end of the poll the whole election IS not over. Ballots have to be assembled, scrutinised, counted recount claims considered and result declared. The declaration determines the election. The conduct of the election thus ripens into the elector\'s choice only when processed, screened and sanctified, every escalatory step upto the formalised finish being unified in purpose, forward in movement, fair and free in its temper. Article 329(b) halts judicial intervention during this period, provided the act possesses the pre- requisites of \'election\' in its semantic sweep. That is to say, immunity is conferred only if the act impeached is done for the apparent object of furthering a free and fair election and the protective armour drops down if the act challenged is either unrelated to. or thwarts or taints the course of the election.</div><div><br></div><div>Having held against the maintainability of the writ petition, we should have parted with the case finally. But counsel for both the 298 candidates and, more particularly, the learned Additional Solicitor General, appearing for the Election Commission, submitted that the breadth, applitude and implications, the direction and depth of Article 324 and, equally important, the question of natural justice raised under Article 324 are of such public importance and largely fallow field going by prior pronouncements, and so strategic for our democracy and itspower process that this Court must decide the issue here and now. Article 141 empowers and obligates this Court to declare the law forthe country when the occasion asks for it. Counsel, otherwise opposing one another, insistently concurred in their request that for the working of the electoral machinery and understanding of the powers and duties vested in the functionaries constituting the infra- structure, it is essential to sketch the ambit and import of Art. 324. This point undoubtedly arises before us even in considering the prohibition under Art. 329 and has been argued fully. In any view, the Election Triburial will be faced with this issue and the law must be laid down so that there may be no future error while disposing of the, election petition or when the Commission is called upon to act on later occasion. This is the particular reason for our proceeding to decide what the content and parameters of Art. 324 are, contextually limited to situations analogous to the present.</div><div><br></div><div>We decide two questions under the relevant article, not argued, but as substantive pronouncements on the subject.</div><div><br></div><div>They are :</div><div><br></div><div>(a) What in its comprehensive connotation does the conduct\' of elections mean or, for that matter, the superintendence, direction and control\' of elections ? (b) Since the text of the provision is silent about hearing before acting, is it permissible to import into Art. 324(1) an obligation to act in accord with natural justice ? Article 324, which we have set out earlier, is a plenary provision vesting the whole responsibility for national and State elections and, therefore, the necessary powers to discharge that function. It is true that Art. 324 has to be read in the light of the constitutional scheme and the 1950 Act and the 1951 Act. Sri Rao is right to the ex-tent be insists that if competent legislative is enacted as visualized in Article 327 the Commission cannot shake himself free from the enacted prescriptions. After all, as Mathew, J. has observed in Indira Gandhi : (supra) \"In the opinion of some of the judges constituting the majority in Bharati\'s case (supra), Rule of Law is a basic structure of the Constitution apart from democracy.</div><div><br></div><div>The rule of law postulates the pervasiveness of the spirit of law throughout the whole range of government in the sense of excluding arbitrary official action in any sphere.\" (p. 523) 299 And the supremacy of valid law over the Commission argues itself. No one is an imperium in imperio in our constitutional order. It is reasonable to hold that the Commissioner cannot defy the law armed by Art. 324.</div><div><br></div><div>Likewise, his functions are subject to the norms of fairness and he cannot act arbitrarily. Unchecked power is alien to our system.</div><div><br></div><div>Even so, situations may arise which enacted law has not provided for. Legislators are not prophets but pragmatists.</div><div><br></div><div>So it is that the Constitution has made comprehensive provision in Art. 324 to take care of surprise situations.</div><div><br></div><div>That power itself has to be exercised, not mindlessly nor mala fide, nor arbitrarily nor with partiality but in keeping with the guidelines of the rule of law and not stultifying the Presidential notification nor existing legislation. More is not necessary to specify; less is insufficient to leave unsaid. Article 324, in our view, operates in areas left unoccupied by legislation and the words \'superintendence, direction and control\' as well as \'conduct of all elections\' are the broadest terms. Myriad maybes, too mystic to be precisely presaged, may call for prompt action to reach the goal of free and fair election.</div><div><br></div><div>It has been argued that this will create a constitutional despot beyond the pale of accountability; a Frank', '3dfa4f36c84f0fbe039056fc5700d1fa.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-05', 1, '', '', '2020-12-06 00:57:34', '2020-12-20 21:48:52');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(123, 'iSbx5gDK8SvdiDZQGeRZCpavx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Kihoto Hollohan vs Zachillhu and others', '<h2 style=\"text-align: center;\"><b>Kihoto Hollohan vs Zachillhu and othrs.</b></h2><h4 style=\"text-align: center;\">(8 February 1992)</h4><h4> </h4><h4 style=\"text-align: center;\">1992 (1) SCR 686; 1992 (2) Suppl.SCC 651&nbsp;</h4><h4 style=\"text-align: center;\">Justice L.M. Sharma, Justice<span style=\"font-size: 1.3125rem;\">&nbsp;</span>M.N. Venkatachalaiah, Justice<span style=\"font-size: 1.3125rem;\">&nbsp;</span>J.S. Verma, Justice<span style=\"font-size: 1.3125rem;\">&nbsp;</span>K. Jayachandra Reddy and Justice<span style=\"font-size: 1.3125rem;\">&nbsp;</span>S.C. Agarwal&nbsp;</h4><h4 style=\"text-align: center;\"><font face=\"Rockwell, Corbel, Museo 500, Helvetica, Arial\">The Judgment of the Court was delivered by 711 (OPERATIVE CONCLUSIONS IN THE MAJORITY OPINION) [Per VENKATACHALIAH, K, JAYACHANDRA REDDY AND AGRAWAL, JJ.].</font></h4><h4 style=\"text-align: center;\"><font face=\"Rockwell, Corbel, Museo 500, Helvetica, Arial\"><br></font></h4><h4 style=\"text-align: justify; \">1. The Writ Petitions, Transfer Petitions, Civil Appeals, Special Leave Petitions and other connected matters raising common questions as to the constitutional validity of the constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, were heard together. Some of these matters involve investigation and determination of factual controversies and of the extent of applicability to them of the conclusions reached on the various constitutional issues. That exercise shall have to be undertaken in the individual cases separately.</h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">The present judgment is pronounced in the Transfer Petition No. 40 of 1991 seeking the transfer of the Writ Petition, Rule No. 2421/90 on the file of the High Court of Guwahati to this Court.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">2. The Transfer Petition is allowed and the aforesaid Writ Petition is withdrawn to this Court for the purpose of deciding the constitutional issues and of declaring the law on the matter.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">3. For the reasons to be set out in the detailed judgment to follow, the following are the operative conclusions in the majority opinion on the various constitutional issues:</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">(A) That having regard to the background and evolution of the principles underlying the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, the provisions of Paragraph 7 of the Tenth Schedule of the Constitution in terms and in effect bring about a change in the operation and effect of Articles 136, 226 and 227 of the Constitution of India and, therefore, the amendment would require to be ratified in accordance with the proviso to sub-Article (2) of Article 368 of the Constitution of India.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">(B) That there is nothing in the said proviso to Article 368 (2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the Amendment requires ratification from the rest of the provisions of such Bill 712 Which do not attract and require such ratification. Having regard to the mandatory language of Article 368 (2) that \"thereupon the constitution shall stand amended\" the operation of the proviso should not be extended to constitutional amendments in a Bill which can stand by themselves without such ratification.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">(C) That accordingly, the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the constitution of India, to the extent of its provisions which are amenable to the legal-sovereign of the amending process of the union Parliament cannot be overborne by the proviso which cannot operate in that area.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">There is no justification for the view that even the rest of the provisions of the constitution (52nd Amendment) Act, 1985, excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 368 (2) was not so ratified.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">(D) That Paragraph 7 of the Tenth Schedule contains a provision which is independent of, and stands apart from, the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defections and, therefore, is a severable part.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">(E) That the Paragraph 2 of the Tenth Schedule to the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">The provisions of Paragraph 2 do not violet any rights or freedom under Article 105 and 194 of the Constitution.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">The provisions are salutory and are intended to strengthen the 713 fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">(F) The contention that the provisions of the Tenth Schedule, even with the exclusion of Paragraph 7, violate the basic structure of the Constitution in that they affect the democratic rights of elected members and, therefore, of the principles of Parliamentary democracy is unsound and is rejected.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">(G) The Speakers, Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjucating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">However, having regard to the Constitutional Scheme in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the speakers/Chairmen. Having regard to the Constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">(H) That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6 (1) does not detract from or abrogate judicial review under Articles 136,226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">(I) That the deeming provision in Paragraph 6 (2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122 (1) and 212 (1) of the Constitution as understood and explained in Keshav singh\'s Case (Spl. Ref., No. 1[1964] INSC 209; , [1965] 1 SCR 413) to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words \"be deemed to be proceedings in Parliament\" or \"proceedings 714 in the Legislature of a State\" confines the scope of the fiction accordingly.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">(J) That contention that the investiture of adjudicatory functions in the Speakers/Chairmen would by itself vitiate the provision on the ground of likelihood of political bias is unsound and is rejected. The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far reaching decisions in the functioning of Parliamentary democracy. Vestiture of power to adjudicate questions under the Tenth Schedule in such a constitutional functionaries should not be considered exceptionable.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">(K) In the view we take of the validity of Paragraph 7 it is unnecessary to pronounce on the contention that judicial review is a basic structure of the Constitution and Paragraph 7 of the Tenth Schedule violates such basic structure .</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">The factual controversies raised in the Writ Petition will, however, have to be decided by the High Court applying the principles declared and laid down by this judgment. The Writ Petition is, accordingly,, remitted to the High Court for such disposal in accordance with law.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">(Operative conclusions in the minority opinion) [Per SHARMA AND VERMA, JJ.] For the reasons to be given in our detailed judgment to follow, our operative conclusions in the minority opinion on the various constitutional issues are as follows:</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">1. Para 7 of the Tenth Schedule,in clear terms and in effect excludes the jurisdiction of all courts, including the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 to entertain any challenge to the decision under para 6 on any ground even of illegality or perveristy, not only at an interim stage but also after the final decision on the question of disqualification on the ground of defection.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">2. Para 7 of the Tenth Schedule, therefore, in terms and in effect, 715 makes a change in Article 136 in Chapter IV of Part V; and Articles 226 and 227 in Chapter V of Part VI of the Constitution, attracting the proviso to clause (2) of Article 368.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">3. In view of para 7 in the Bill resulting in the Constitution (Fifty-Second Amendment) Act, 1985 it was required to be ratified by the Legislature of not less than one-half of the States as a condition precedent before the Bill could be presented to the President for assent, in accordance with the mandatory special procedure prescribed in the Proviso to clause (2) of Article 368 for exercise of the constituent power. Without ratification by the specified number of State Legislatures, the stage for presenting the Bill for assent of the President did not reach and, therefore, the so-called assent of the President was non est and did not result in the Constitution standing amended in accordance with the terms of the Bill.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">4. In the absence of ratification by the specified number of State Legislatures before presentation of the Bill to the President for his assent, as required by the Proviso to clause (2) of Article 368, it is not merely para 7 but, the entire Constitution (Fifty-Second Amendment) Act, 1985 which is rendered unconstitutional, since the constituent power was not exercised as prescribed in Article 368, and therefore, the Constitution did not stand amended in accordance with the terms of the Bill providing for the amendment.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">5. Doctrine of Severability cannot be applied to a Bill making a constitutional amendment where any part thereof attracts the Proviso to clause (2) of Article 368.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">6. Doctrine of Severability is not applicable to permit striking down para 7 alone saving the remaining provisions of the Bill making the Constitutional Amendment on the ground that para 7 alone attracts the proviso to clause (2) of Article 368.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">7. Even otherwise, having regard to the provisions of the Tenth Schedule of the Constitution inserted by the Constitution (Fifty_Second Amendment) Act, 1985, the Doctrine of Severability does not apply to it.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">8.Democracy is a part of the basic structure of the Constitution and free and fair elections with provision for resolution of disputes relating to 716 the same as also for adjudication of those relating to subsequent disqualification by an independent body outside the House are essential features of the democratic system in our Constitution. Accordingly, an independent adjudicatory machinery for resolving disputes relating to the competence of Member of the House is envisaged as an attribute of this basic feature. The tenure of the Speaker who is the authority in the Tenth Schedule to decide this dispute is dependent on the continuous support of the majority in the House and, therefore,, he (the Speaker) does not satisfy the requirement of such an independent adjudicatory authority; and his choice as the sole arbiter in the matter violates an essential attribute of the basic feature.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">9. Consequently, the entire constitution (Fifty-Second Amendment) Act, 1985 which inserted the Tenth Schedule together with clause (2) in Articles 102 and 191, must be declared unconstitutional or an abortive attempt to so amend the constitution.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">10. It follows that all decisions rendered by the several Speakers under the Tenth Schedule must also be declared nullity and liable to be ignored.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">11. On the above conclusions, it does not appear necessary or appropriate to decide the remaining question urged.</span><br></h4><h4 style=\"text-align: justify; \"><font face=\"Rockwell, Corbel, Museo 500, Helvetica, Arial\"><br></font></h4><h4 style=\"text-align: justify; \"><font face=\"Rockwell, Corbel, Museo 500, Helvetica, Arial\">ORDER The Transfer Petition is allowed and the Writ Petition, Rule No. 2421 of 1990 on the file of the High Court of Guwahati is withdrawn to this Court for the purpose of deciding the constitutional issues and of declaring the law on the matter.</font></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">In accordance with the majority opinion, the factual controversies raised in the Writ Petition will, however, have to be decided by the High Court Applying the principles declared and laid down by the majority. The Writ Petition is, accordingly remitted to the High Court for such disposal in accordance with law.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">VENKATACHALIAH, J. In these petitions the constitutional validity of the Tenth Schedule of the Constitution introduced by the Constitution (Fifty-Second Amendment) Act. 1985, is assailed. These two cases were 717 amongst a batch of Writ Petitions, Transfer Petitions, civil Appeals, Special Leave Petitions and other similar and connected matters raising common questions which were all heard together. On 12.11.1991 we made an order pronouncing our findings and conclusions upholding the constitutional validity of the amendment and of the provisions of the Tenth Schedule, except for Paragraph 7 which was declared invalid for want of ratification in terms of and as required by the proviso to Article 368 (2) of the Constitution. In the order dated 12.11.1991 our conclusions were set out and we indicated that the reasons for the conclusions would follow later. The reasons for the conclusions are now set out.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">2. This order is made in Transfer Petition No. 40 of 1991 and in Writ Petition No. 17 of 1991. We have not gone into the factual controversies raised in the Writ-Petition before the Writ-Petition before the Guwahati High Court in Rule No.2421 of 1990 from which Transfer Petition No. 40 of 1991 arises. Indeed, in the order of 12th November, 1991 itself the said Writ Petition was remitted to the High Court for its disposal in accordance with law.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">3. Shri F.S. Nariman, Shri Shanti Bhushan, Shri M.C.&nbsp;</span>Bhandare, Shri Kapil Sibal, Shri Sharma and shri Bhim Singh, learned counsel addressed arguments in support of the petitions. Learned Attorney-General, Shri Soli J. Sorabjee,Shri R.K. Garg,Shri Santhosh Hegde sought to support the constitutional validity of the amendment. Shri Ram Jethmalani has attacked the validity of the amendment for the same reasons as put forward by Shri Sharma.</h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">4. Before we proceed to record our reasons for the conclusions reached in our order dated 12th November, 1991, on the contentions raised and argued, it is necessary to have a brief look at the provisions of the Tenth Schedule.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">The Statement of Objects and Reasons appended to the Bill which was adopted as the Constitution (Fifty-Second Amendment) Act, 1985 says:</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">\"The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundation of our democracy and the principles which sustain it.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti-defection 718 Bill. This Bill is meant for outlawing defection and fulfilling the above assurance.\" On December 8, 1967, the Lok sabha had passed an unanimous Resolution in terms following:</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">\"a high-level Committee consisting of representatives of political parties and constitutional experts be set up immediately by Government to consider the problem of legislators changing their allegiance from one party to another and their frequent crossing of the floor in all its aspects and make recommendations in this regard.\" The said Committee known as the \"Committee on Defections\" in its report dated January 7, 1969, inter-alia, observed:</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">\"Following the Fourth General Election, in the short period between March 1967 and February, 1968, the Indian political scene was characterised by numerous instances of change of party allegiance by legislators in several States. Compared to roughly 542 cases in the entire period between the First and Fourth General Election, at least 438 defections occurred in these 12 months alone.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">Among Independents, 157 out of a total of 376 elected joined various parties in this period.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">That the lure of office played a dominant part in decisions of legislators to defect was obvious from the fact that out of 210 defecting legislators of the States of Bihar, Haryana, Madhya Pradesh, Punjab, Rajasthan Uttar Pradesh and West Bengal, 116 were included in the Council of Ministers which they helped to bring into being by defections. The other disturbing features of this phenomenon were:</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">multiple acts of defections by the same persons or set of persons (Haryana affording a conspicuous example); few resignations of the membership of the legislature of explanations by individual defectors, indifference on the part of defectors to political proprieties, constituency preference or public opinion; and the belief held by the people and expressed in the press that corruption and bribery were behind some of these defections\".</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">(emphasis supplied) 719 The Committee on Defections recommended that a defector should be debarred for a period of one year or till such time as he resigned his seat and got himself re-elected from appointment to the office of a Minister including Deputy Minister or Speaker or Deputy Speaker, or any post carrying salaries or allowances to be paid from the Consolidated Fund of India or of the State or from the funds of Government Undertakings in public sector in addition to those to which the defector might be entitled as legislator. The Committee on Defections could not however, reach an agreed conclusion in the matter of disqualifying a defector from continuing to be a Member of Parliament/State Legislator.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">Keeping in view the recommendations of the committee on Defections, the Constitution (Thirty-Second Amendment) Bill,, 1973 was introduced in the Lok Sabha on May 16, 1973.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">It provided for disqualifying a Member from continuing as a Member of either House of Parliament or the State Legislature on his voluntarily giving up his membership of the political party by which he was set up as a candidate at such election or of which he became a Member after such election, or on his voting or abstaining from voting in such House contrary to any direction issued by such political party or by any person or authority authorised by it in this behalf without obtaining prior permission of such party, person or authority. The said Bill, however, lapsed on account of dissolution of the House. Thereafter, the Constitution (Forty-eight Amendment) Bill, 1979 was introduced in the Lok Sabha which also contained similar provisions for disqualification on the ground of defection.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">This Bill also lapsed and it was followed by the Bill which was enacted into the Constitution (Fifty Second Amendment) Act, 1985.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">5. This brings to the fore the object underlying the provisions in the Tenth Schedule. The object is to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundations of our democracy. The remedy proposed is to disqualify the Member of either House of Parliament or of the State Legislature who is found to have defected from continuing as a Member of the House. The grounds of disqualification are specified in Paragraph 2 of the Tenth Schedule.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">Paragraph 2(1) relates to a Member of the House belonging to a political party by which he was set up as a candidate at the election. Under 720 Paragraph 2(1) (a) such a Member would incur disqualification if he voluntarily gives up his membership of such political party. Under clause (b) he would incur the disqualification if he votes or abstains from voting in the House contrary to \"any direction\" issued by the political party to which he belongs or by any person or authority authorised by it in this behalf without obtaining, in either case, prior permission of such political party, person or authourity and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. This sub para would also apply to a nominated member who is a Member of a political party on the date of his nomination as such Member or who joins a political party within six months of his taking oath.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">Paragraph 2(2) deals with a Member who has been elected otherwise than as a candidate set up by any political party and would incur the disqualification if he joins any political party after such election. A nominated Member of the House would incur his disqualification under sub para (3) if he joins any political party after the expiry of six months from the date on which he takes his seat.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">6. Paragraphs 3 and 4 of the Tenth Schedule, however, exclude the applicability of the provisions for disqualification under para 2 in cases of \"split\" in the original political party or merger of the original political party with another political party.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">These provisions in the Tenth Schedule give recognition to the role of political parties in the political process.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. The provisions of Paragraph 2(1) (a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves and political party which had set him up as a candidate at the election, then he should give up his Membership of the legislature and go back before the electorate. The same yard stick is applied to a person who is elected as an Independent candidate and wishes to join a political party after the election.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">Paragraph 2 (1) (b) deals with a slightly different situation i.e. a variant where dissent becomes defection.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">If a Member while remaining a 721 Member of the political party which had set him up as a candidate at the election, votes or abstains from voting contrary to \"any direction\" issued by the political party to which he belongs or by any person or authority authorised by it in this behalf he incurs the disqualification. In other words, it deals with a Member who expresses his dissent from the stand of the political party to which he belongs by voting or abstaining from voting in the House contrary to the direction issued by the political party.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">Paragraph 6 of the Tenth Schedule reads:</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">\"6 (1) If any question arises as to whether a Member of a House has become subject to disqualification under this Schedule the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final:</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such Member of the House as the House may elect in this behalf and his decision shall be final.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">(2) All proceedings under sub-Paragraph (1) of this Paragraph in relation to any question as to disqualification of a Member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of Article 212.\" Paragraph 7 says:</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">\"7. Bar of jurisdiction of courts: Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a Member of a House under this Schedule.\"</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">7. The challenge to the constitutional validity of the Amendment which introduces the Tenth Schedule is sought to be sustained of many grounds. It is urged that the constitutional Amendment introducing Paragraph 7 of the Tenth Schedule, in terms and in effect, seeks to make a change in Chapter IV of Part V of the Constitution in that it denudes the jurisdiction of the 722 Supreme Court under Article 136 of the Constitution of India and in Chapter V of part VI in that it takes away the jurisdiction of the High Courts under Article 226 and that, therefore, the legislative Bill, before presentation to the President for assent, would require to be ratified by the Legislature of not less than one half of the States by resolution to that effect. In view of the admitted position that no such ratification was obtained for the Bill, it is contended, the whole Amending Bill-not merely Paragraph 7- fails and the amendment merely remains an abortive attempt to bring about an amendment. It is further contended that the very concept of disqualification for defection is violative of the fundamental values and principles underlying Parliamentary democracy and violates an elected representative\'s freedom of speech, right to dissent and freedom of conscience and is, therefore, unconstitutional as destructive of a basic feature of the Indian Constitution.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">It is also urged that the investiture in the Speaker or the Chairman of the power to adjudicate disputed defections would violate an important incident of another basic feature of the Constitution, viz., Parliamentary democracy. It is contended that an independent, fair and impartial machinery for resolution of electoral disputes is an essential and important incident of democracy and that the vesting of the power of adjudication in the Speaker or the Chairman-who, in the India Parliamentary system are nominees of political parties and are not obliged to resign their party affiliations after election-is violative of this requirement.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">It is alternatively contended that if it is to be held that the amendment does not attract the proviso to Article 368(2), then Paragraph 7 in so far as it takes away the power of judicial review, which, in itself, is one of the basic features of the Constitution is liable to be struck down.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">8. There are certain other contentions which, upon a closer examination, raise issues more of construction than constitutionality. For instance, some arguments were expanded on the exact connotations of a \"split\" as distinct from a \"defection\" within the meaning of Paragraph 3. Then again, it was urged that under Paragraph 2(b) the expression \"any direction\" is so wide that even a direction,, which if given effect to and implemented might bring about a result which may itself be obnoxious to and violative of constitutional ideals and values would be a source of disqualification . These are,, indeed, matters of construction as to how,, in the context in which the occasion for the introduction of the Tenth Schedule arose and the high purpose it is intended to serve, the expression \"any direction\" occurring in Paragraph 723 2(b) is to be understood. Indeed, in one of the decisions cited before us (Prakash Singh Badal &amp; Ors. v. Union of India &amp; Ors., AIR 1987 Punjab and Haryana 263) this aspect has been considered by the High Court. The decision was relied upon before us. We shall examine it presently.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">9. Supporting the constitutionality of the Amendment, respondents urge that the Tenth Schedule creates a non- justiciable constitutional area dealing with certain complex political issues which have no strict adjudicatory disposition. New rights and obligations are created for the first time uno-flatu by the Constitution and the Constitution itself has envisaged a distinct constitutional machinery for the resolution of those disputes. These rights, obligations and remedies, it is urged, which are in their very nature and innate complexities are in political thickets and are not amenable to judicial processes and the Tenth Schedule has merely recognised this complex character of the issues and that the exclusion of this area is constitutionally preserved by imparting a finality to the decisions of the Speaker or the Chairman and by deeming the whole proceedings as proceedings within Parliament or within the House of Legislature of the States envisaged in Articles 122 and 212, respectively, and further by expressly excluding the Courts\' jurisdiction under Paragraph 7.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">Indeed, in constitutional and legal theory, it is urged,, there is really no ouster of jurisdiction of Courts or of Judicial Review as the subject-matter itself by its inherent character and complexities is not amenable to but outside judicial power and that the ouster of jurisdiction under Paragraph 7 is merely a consequential constitutional recognition of the non-amenability of the subject-matter to the judicial power of the State, the corollary of which is that the Speaker or the Chairman,, as the case may be, exercising powers under Paragraph 6(1) of the Tenth Schedule function not as a statutory Tribunal but as a part of the State\'s Legislative Department.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">It is, therefore, urged that no question of the ouster of jurisdiction of Courts would at all arise inasmuch as in the first place, having regard to the political nature of the issues, the subject-matter is itself not amenable to judicial power. It is urged that the question in the last analyses pertains to the constitution of the House and the Legislature is entitled to deal with it exclusively.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">10. It is further urged that Judicial Review - apart from Judicial Review of the legislation as inherent under a written constitution -is 724 merely a branch of administrative law remedies and is by no means a basic feature of the Constitution and that, therefore, Paragraph 7, being a constitutional provision cannot be invalidated on some general doctrine not found in the Constitution itself.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">11. On the contentions raised and urged at the hearing the questions that fall for consideration are the following:</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">(A) The Constitution (Fifty-Second Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule is destructive of the basic structure of the constitution as it is violative of the fundamental principles of Parliamentary democracy, a basic feature of the Indian constitutionalism and is destructive of the freedom of speech, right to dissent and freedom of conscience as the provisions of the Tenth Schedule seek to penalise and disqualify elected representatives for the exercise of these rights and freedoms which are essential to the sustenance of the system of Parliamentary democracy.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">(B) Having regard to the legislative history and evolution of the principles underlying the Tenth Schedule, Paragraph 7 thereof in terms and in effect, brings about a change in the operation and effect of Article 136,, 226 and 227 of the Constitution of India and, therefore, the Bill introducing the amendment attracts the proviso to Article 368(2) of the constitution and would require to be ratified by the legislative of the States before the Bill is presented for Presidential assent.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">(C) In view of the admitted non-compliance with proviso to Article 368(2) not only Paragraph 7 of the Tenth Schedule, but also the entire Bill resulting in the Constitution (Fifty-Second Amendment) Act, 1985, stands vitiated and the purported amendment is abortive and does not in law bring about a valid amendment.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">Or whether, the effect of such non-compliance invalidates Paragraph 7 alone and the other provisions which, by themselves, do not attract the proviso do not become invalid.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">(D) That even if the effect of non-ratification by the legislature 725 of the States is to invalidate Paragraph 7 alone, the whole of the Tenth Schedule fails for non- severability. Doctrine of severability, as applied to ordinary statutes to promote their constitutionality, is inapplicable to constitutional Amendments.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">Even otherwise, having regard to legislative intent and scheme of the Tenth Schedule, the other provisions of the Tenth Schedule, after the severance and excision of Paragraph 7, become truncated, and unworkable and cannot stand and operate independently. The Legislature would not have enacted the Tenth Schedule without Paragraph 7 which forms its heart and core.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">(E) That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts the immunity under Articles 122 and 212. The Speaker and the Chairman in relation to the exercise of the powers under the Tenth Schedule shall not be subjected to the jurisdiction of any Court.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">The Tenth Schedule seeks to and does create a new and non-justiciable area of rights, obligations and remedies to be resolved in the exclusive manner envisaged by the Constitution and is not amenable to , but constitutionally immune from curial adjudicative processes.</span></h4><h4 style=\"text-align: justify; \"><font face=\"Rockwell, Corbel, Museo 500, Helvetica, Arial\">(F) That even if Paragraph 7 erecting a bar on the jurisdiction of Courts is held inoperative, the Courts\' jurisdiction is, in any event, barred as Paragraph 6(1) which imparts a constitutional `finality\'to the decision of the Speaker or the Chairman, as the case may be, and that such concept of `finality\' bars examination of the matter by the Courts.</font></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">(G) The concept of free and fair elections as a necessary concomitant and attribute of democracy which is a basic feature includes an independent impartial machinery for the adjudication of the electoral disputes. The Speaker and the Chairman do not satisfy these incidents of an independent adjudicatory machinery.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">The investiture of the determinative and adjudicative jurisdiction 726 in the Speaker or the Chairman, as the case may be, would, by itself, vitiate the provision on the ground of reasonable likelihood of bias and lack of impartiality and therefore denies the imperative of an independent adjudicatory machinery. The Speaker and Chairman are elected and hold office on the support of the majority party and are not required to resign their Membership of the political party after their election to the office of the Speaker or Chairman.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">(H) That even if Paragraph 7 of the Tenth Schedule is held not to bring about a change or affect Articles 136, 226 and 227 of the Constitution, the amendment is unconstitutional as it erodes and destroys judicial review which is one of the basic features of the constitution.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">12. Re: Contention(A):</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">(The Tenth Schedule is part of the constitution and attracts the same cannons of construction as are applicable to the expounding of the fundamental law. One constitutional power is necessarily conditioned by the others as the Constitution is one \"coherent document\".</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">Learned counsel for the petitioners accordingly say that Tenth Schedule should be read subject to the basic features of the Constitution. The Tenth Schedule and certain essential incidents of democracy, it is urged, cannot co- exist.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">In expounding the processes of the fundamental law, the Constitution must be treated as a logical-whole. Westel Woodbury Willoughby in the \"Constitutional Law of the United States\" states:</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">\"The Constitution is a logical whole, each provision of which is an integral part thereof, and it is, therefore,, logically proper, and indeed imperative, to construe one part in the light of the provisions of the other parts.\" [2nd Edn. Vol.1 page 65] A constitutional document outlines only broad and general principles meant to endure and be capable of flexible application to changing circumstances - a distinction which differentiates a statue from a Charter under which all statutes are made. Cooley on \"Constitutional Limitations\" says:</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">727 \"Upon the adoption of an amendment to a constitution, the amendment becomes a part thereof; as much so as if it had been originally incorporated in the Constitution; and it is to be construed accordingly.\" [8th Edn. Vol. 1 page 129]</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">13. In considering the validity of a constitutional amendment the changing and the changed circumstances that compelled the amendment are important criteria. The observations of the U.S. Supreme Court in Maxwell v. Dow (44 lawyer\'s Edition 597 at page 605) are worthy of note:</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">\"....to read its language in connection with the known condition of affairs out of which the occasion for its adoption may have arisen and then to construe it,, if there be therein any doubtful expressions, in a way so far as is reasonably possible, to forward the known purpose or object for which the amendment was adopted.....\" The report of the Committee on Defections took note of the unprincipled and unethical defections induced by considerations of personal gains said:</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">\"....What was most heartening was the feeling of deep concern over these unhealthy developments in national life on the part of the leaders of political parties themselves. Parliament mirrored this widespread concern......\" [page 1]</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">14. It was strenuously contended by Shri Ram Jethmalani and Shri Sharma that the provisions of the Tenth Schedule constitute a flagrant violation of those fundamental principles and values which are basic to the sustenance of the very system of Parliamentary democracy. The Tenth Schedule, it is urged, negates those very foundational assumptions of Parliamentary democracy; of freedom of speech; of the right to dissent and of the freedom of conscience. It is urged that unprincipled political defections may be an evil, but it will be the beginning of much greater evils if the remedies, graver than the disease itself, are adopted. The Tenth Schedule, they say, seeks to throw away the baby with the bath-water. Learned counsel argue that \"crossing the floor\", as it has come to be called, mirrors the meanderings of a troubled conscience on issues of political 728 morality and to punish an elected representative for what really amounts to an expression of conscience negates the very democratic principles which the Tenth Schedule is supposed to preserve and sustain. Learned counsel referred to the famous speech to the Electors of Bristol, 1774, where Edmund Burke reportedly said:</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">\"It ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">It is his duty to sacrifice his repose, his pleasures, his satisfactions to theirs -and above all, ever, and in all cases, to prefer their interest to his own. But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living.... Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.\" [see: Parliament Functions, Practice &amp; Procedures by JAG Griffith and Michael Ryle 1989 Edn. page 70]</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">15. Shri Jethmalani and Shri sharma also relied upon certain observations of Lord Shaw in Amalgamated Society or Railway Servants v. Osborne, [1909] UKLawRpAC 69; [1910 A.C. 87] to contend that a provision which seeks to attach a liability of disqualification of an elected Member for freely expressing his views on matters of conscience, faith and political belief are indeed restraints on the freedom of speech - restraints opposed to public policy. In that case a registered trade union framed a rule enabling it to levy contributions on the Members to support its efforts to obtain Parliamentary representation by setting up candidates at elections. It also framed a rule requiring all such candidates to sign and accept the conditions of the Labour Party and be subject to its whip. The observations in the case relied upon by learned counsel are those of Lord Shaw of Dunfermline who observed:</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">\"Take the testing instance: should his view as to right and wrong on a public issue as to the true line of service to the realm, as to the real interests of the constituency which has elected him, or even of the society which pays him, differ from the decision of the parliamentary party and the maintenance by it of its 729 policy, he has come under a contract to place his vote and action into subjection not to his own convictions, but to their decisions. My Lords, I do not think that such a subjection is compatible either with the spirit of our parliamentary constitution or with that independence and freedom which have hither-to been held to lie at the basis of representative government in the United Kingdom.\" [page 111] \"For the people having reserved to themselves the choice of their representatives, as the fence to their properties, could do it for no other end but that they might always be freely chosen, and so chosen freely act and advise, as the necessity of the commonwealth and the public good should upon examination and mature debate be judged to require.....\" [page 113] \"Still further, in regard to the Members of Parliament himself, he too is to be free; he is not to be the paid mandatory of any man, or organization of men, nor is he entitled to bind himself to subordinate his opinions on public questions to others, for wages, or at the peril of pecuniary loss; and any contract of this character would not be recognized by a Court of law, either for its enforcement or in respect of its breach...\" [page 115] It is relevant to observe here that the rule impugned in that case was struck down by the Court of Appeal - whose decision was upheld by the House of Lords - on grounds of the Society\'s competence to make the rule. It was held that the rule was beyond its powers. Lord Shaw, however, was of the view that the impugned rule was opposed to those principles of public policy essential to the working of a representative government. The view expressed by Lord Shaw was not the decision of the House of Lords in the case.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">But, the real question is whether under the Indian constitutional scheme is there any immunity from constitutional correctives against a 730 legislatively perceived political evil of unprincipled defections induced by the lure of office and monetary inducements?</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">16. The points raised in the petitions are, indeed, far-reaching and of no small importance - invoking the `sense of relevance of constitutionally stated principles to unfamiliar settings\'. On the one hand there is the real and imminent threat to the very fabric of Indian democracy posed by certain levels of political behavior conspicuous by their utter and total disregard of well recognised political proprieties and morality. These trends tend to degrade the tone of political life and, in their wider propensities, are dangerous to and undermine the very survival of the cherished values of democracy. there is the legislative determination through experimental constitutional processes to combat that evil.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">On the other hand, there are, as in all political and economic experimentations, certain side-effects and fall- out which might affect and hurt even honest dissenters and conscientious objectors. These are the usual plus and minus of all areas of experimental legislation. In these areas the distinction between what is constitutionally permissible and what is outside it is marked by a `hazy gray-line\' and it is the Court\'s duty to identify, \" darken and deepen\" the de</span><br></h4>', '735e09b77af559b9b27a9a57526b3d89.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-05', 1, '', '', '2020-12-06 01:32:18', '2021-01-21 22:17:22');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(960, 'SS71Y8uzzbcH0BcOoMXfZgQTz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Supreme Court judgement on Telephone-tapping and subsequent developments.  ', '<h6><b>The Supreme Court considered the issue of Telephone -tapping in&nbsp;</b><b style=\"font-size: 1rem; font-family: var(--bs-font-sans-serif);\">People\'s Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301.&nbsp;</b><b style=\"font-size: 1rem; font-family: var(--bs-font-sans-serif);\">Justice Kuldip Singh and Justice S. Saghir Ahmed.&nbsp;</b></h6><h6><b>In the opening paragraph Justice Kuldip Singh observes \"Telephone-tapping is a serious invasion of an individual\'s privacy. With the growth of highly sophisticated communication technology, the right to hold telephone conversation, in the privacy of one\'s home or office without interference, is increasingly susceptible to abuse. It is no doubt correct that every Government, howsoever democratic, exercises some degree of sub rosa operation as a part of its intelligence outfit but at the same time citizen\'s right to privacy has to be protected from being abused by the authorities of the day.\"<br></b></h6><h6><b><u>Relevant paragraphs from the judgment</u>. 2. This petition — public interest — under Article 32 of the Constitution of India has been filed by the People\'s Union of Civil Liberties, a voluntary organisation, highlighting the incidents of telephone-tapping in the recent past. The petitioner has challenged the constitutional validity of Section 5(2) of the Indian Telegraph Act, 1885 (the Act), in the alternative it is contended that the said provisions be suitably read down to include procedural safeguards to rule out arbitrariness and to prevent the indiscriminate telephone-tapping.</b></h6><h6><b>Section 5(2) of the Telegraph Act, 1885&nbsp; is as under:<br></b></h6><h6><b><i>“5. (2) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially unauthorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order:<br>Provided that press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section.”</i><br></b></h6><h6><b>4. The above provisions clearly indicate that in the event of the occurrence of a public emergency or in the interest of public safety the Central Government or the State Government or any officer specially authorised in this behalf, can intercept messages if satisfied that it is necessary or expedient so to do in the interest of:<br>(i) The sovereignty and integrity of India.<br>(ii) The security of the State.<br>(iii) Friendly relations with foreign States.<br>(iv) Public order.<br>(v) For preventing incitement to the commission of an offence.<br></b></h6><h6><b><u>Directions from the Supreme Court. </u>35. We, therefore, order and direct as under:<br>1. An order for telephone-tapping in terms of Section 5(2) of the Act shall not be issued except by the Home Secretary, Government of India (Central Government) and Home Secretaries of the State Governments. In an urgent case the power may be delegated to an officer of the Home Department of the Government of India and the State Governments not below the rank of Joint Secretary. Copy of the order shall be sent to the Review Committee concerned within one week of the passing of the order.<br>2. The order shall require the person to whom it is addressed to intercept in the course of their transmission by means of a public telecommunication system, such communications as are described in the order. The order may also require the person to whom it is addressed to disclose the intercepted material to such persons and in such manner as are described in the order.<br>3. The matters to be taken into account in considering whether an order is necessary under Section 5(2) of the Act shall include whether the information which is considered necessary to acquire could reasonably be acquired by other means.<br>4. The interception required under Section 5(2) of the Act shall be the interception of such communications as are sent to or from one or more addresses, specified in the order, being an address or addresses likely to be used for the transmission of communications to or from, from one particular person specified or described in the order or one particular set of premises specified or described in the order.<br>5. The order under Section 5(2) of the Act shall, unless renewed, cease to have effect at the end of the period of two months from the date of issue. The authority which issued the order may, at any time before the end of two-month period renew the order if it considers that it is necessary to continue the order in terms of Section 5(2) of the Act. The total period for the operation of the order shall not exceed six months.<br>6. The authority which issued the order shall maintain the following records:<br>(a) the intercepted communications,<br>(b) the extent to which the material is disclosed,<br>(c) the number of persons and their identity to whom any of the material is disclosed,<br>(d) the extent to which the material is copied, and<br>(e) the number of copies made of any of the material.<br>7. The use of the intercepted material shall be limited to the minimum that is necessary in terms of Section 5(2) of the Act.<br>8. Each copy made of any of the intercepted material shall be destroyed as soon as its retention is no longer necessary in terms of Section 5(2) of the Act.<br>9. There shall be a Review Committee consisting of Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication at the level of the Central Government. The Review Committee at the State level shall consist of Chief Secretary, Law Secretary and another member, other than the Home Secretary, appointed by the State Government.<br>(a) The Committee shall on its own, within two months of the passing of the order by the authority concerned, investigate whether there is or has been a relevant order under Section 5(2) of the Act. Where there is or has been an order, whether there has been any contravention of the provisions of Section 5(2) of the Act.<br>(b) If on an investigation the Committee concludes that there has been a contravention of the provisions of Section 5(2) of the Act, it shall set aside the order under scrutiny of the Committee. It shall further direct the destruction of the copies of the intercepted material.<br>(c) If on investigation, the Committee comes to the conclusion that there has been no contravention of the provisions of Section 5(2) of the Act, it shall record the finding to that effect.</b></h6><p><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">IT (Procedures and Safeguards for Interception, Monitoring and Decryption of Information) Rules framed in 2009 under the IT Act&nbsp;</span><b>state that only the competent authority can issue an order for the interception, monitoring or decryption of any information generated, transmitted, received or stored in any computer resource (mobile phones would count). The competent authority is once again the Union Home Secretary or State Secretaries in charge of the Home Departments.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Supreme Court in a landmark decision in August, 2017 (Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Others) unanimously upheld right to privacy as a fundamental right under Articles 14, 19 and 21 of the Constitution. It is a building block and an important component of the legal battles that are to come over the state’s ability to conduct surveillance. But as yet a grey area remains between privacy and the state’s requirements for security.</b><br></p><p><b>In the same year, the government also constituted a Data Protection Committee under retired Justice B.N. Srikrishna. It held public hearings across India and submitted a draft data protection law in 2018 which Parliament is yet to enact. Experts have pointed out, however, that the draft law does not deal adequately with surveillance reform.</b></p><p><b>The Personal Data Protection Bill, 2018 (enclosed as PDF) has not been enacted till today. The Statement of Objects and Reasons of the Bill reads thus;</b></p><p><b>WHEREAS the right to privacy is a fundamental right and it is necessary to protect personal data as an essential facet of informational privacy;&nbsp;</b></p><p><b>WHEREAS the growth of the digital economy has meant the use of data as a critical means of communication between persons; WHEREAS it is necessary to create a collective culture that fosters a free and fair digital economy, respecting the informational privacy of individuals, and ensuring empowerment, progress and innovation;&nbsp;</b></p><p><b>AND WHEREAS it is expedient to make provision: toprotect the autonomy of individuals in relation with their personal data, to specify where the flow and usage of personal data is appropriate, to create a relationship of trust between persons and entities processing their personal data, to specify the rights of individuals whose personal data are processed, to create a framework for implementing organisational and technical measures in processing personal data, to lay down norms for cross-border transfer of personal data, to ensure the accountability of entities processing personal data, to provide remedies for unauthorised and harmful processing, and to establish a Data Protection Authority for overseeing processing activities.</b></p><p><b>In December 2018, the Central government created a furore when it authorised 10 Central agencies to conduct surveillance — the Intelligence Bureau, the Central Bureau of Investigation, the National Investigation Agency, the Research &amp; Analysis Wing, the Directorate of Signal Intelligence, the Narcotics Control Bureau, the Enforcement Directorate, the Central Board of Direct Taxes, the Directorate of Revenue Intelligence and the Delhi Police Commissioner. In the face of criticism that it was building a ‘surveillance state’, the government countered that it was building upon the rules laid down in 2009 and the agencies would still need approval from a competent authority, usually the Union Home Secretary.</b></p><p></p><p><b>The recent alleged usage of Military grade spyware Pegasus has again created uproar in the Parliament. The matter has now reached the Supreme Court. Hopefully a comprehensive landmark judgement will be rendered by the Supreme Court on this issue.&nbsp;&nbsp;</b></p><p><b>-S.Basavaraj, Daksha Legal.&nbsp;</b></p>', '54a71e96e6e4b2507069c58f4e77556f.jpg', '7272f1acfde123195e14e9f236b6037e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-16', 1, '', '', '2021-08-17 02:08:48', '2021-08-16 16:09:06'),
(365, 'fzAXguziZ8tux8PINupTNoBcQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A member of the Bar is expected to act first as an Officer of the Court and thereafter as the mouthpiece of his client. Karnataka High Court censures lawyer for filing contemptuous petition.', '<h4><span style=\"font-size: 0.875rem;\"><b>V. Gururaj vs Sri. Sri. Vidya Sreesha Theertharu. Writ Petition 44/2021 decided on 12 January 2021.</b></span><br><br><b>Judgment Link</b>: <br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/359672/1/WP44-21-12-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/359672/1/WP44-21-12-01-2021.pdf</a><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br>Note: </b><br>This is a matter where, at the instance and on the advice of client, Advocate filed a Writ Petition before the Division Bench of the Karnataka High Court praying that his matter which is pending before the learned single judge of the High Court be heard by the bench of the Chief Justice or any other court which is constituted by the judge hailing from a different State other than Karnataka. The Hon’ble division bench found the conduct of the petitioner highly contemptuous and dismissed the same with exemplary cost of Rs. 1,00,000/-. On the conduct of the counsel, the Hon’ble Court said as follows:\r\n14. Before we part with this order, we must say something about the role of the members of the Bar. It is well settled that a member of the Bar is expected to act first as an Officer of the Court and thereafter, as the mouthpiece of his client. In this behalf, we cannot avoid temptation of what is observed in paragraph 7 of the decision of the  Apex Court in  the case of T.Arvindam vs T.V. Satyapal and another (1977) 4 SCC 467. Paragraph 7 of the said case reads thus:\r\n“7. We regret the infliction of the ordeal upon the learned Judge of the High Court by a callous party. We more than regret the circumstance that the party concerned has been able to prevail upon one lawyer or the other to present to the Court a case which was disingenuous or worse. It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady actions. The Bar Council of India, we hope will activate this obligation. We are constrained to make these observations and hope that the co- operation of the Bar will be readily forthcoming to the Bench for spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain litigation is the gullible grant of ex parte orders tempts gamblers in litigation into easy courts. A judge who succumbs to ex parte pressure in unmerited cases helps devalue the judicial process. We must appreciate Shri Ramasesh for his young candour and correct advocacy.”\r\n15. The Apex Court expressed displeasure about the manner in which  the party concerned  was able to prevail upon a lawyer to represent before the Court a case like this. In this case, we have before us a young member of the Bar  who should follow what is laid down by the Apex Court.  In  paragraph 7 of the aforesaid decision, when the Apex Court  said that it may be a valuable contribution to the  cause  of justice if the Advocates screen wholly fraudulent and frivolous litigations refusing to be beguiled by dubious clients. We hope and trust that the learned counsel appearing for the petitioner has learnt a lesson and he will hereafter follow what the Apex Court expects the members of the Bar to follow.</span></div>\r\n<p></p><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Compiled by S. Basavaraj, Advocate, Daksha Legal</b><br></div><p></p><p></p></h4><h4></h4>', '077fd401c147688c090bdec15ced6d88.png', 'e4ca25324968f17abff41412af2e5684.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-21', 1, '', '', '2021-01-22 06:03:28', '2021-01-22 16:54:32'),
(120, 'Ef83EOrNKTXlNewvVrSHxAXSl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Share brokerage is based on contract of agency. When cheque is issued, liability of owner of shares to pay commission cannot be denied on the ground of losses suffered. Karnataka High Court.     ', '<p><b>M/s. Networth Stock Broking Limited vs Shanthala.Criminal Appeal 335/2017 decided on 23 November 2020.</b><br><br><b>Judgment Link: </b><br>http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/351239/1/CRLA335-17-23-11-2020.pdf<br><br><b>Relevant paragraphs: <br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem; font-weight: 400;\">8. Complainant claims that it was liasioning between the accused and share broker. Further the transaction according to complainant and accused is not the first one which is one among umpteen number of transactions entered into between the complainant and the accused. It is not disputed that in the past there are instances wherein the shares were sold and made to purchase through mediation of the accused and also payments were made for choice.</span></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">9 &amp; 13. The rule of agency is based on two principles (1) whatever a person can do by himself he can do through another. (2) He who does an act through another does it by himself. Certain regular transactions involving a person who is being represented, person representing the former and the third parties may very well be akin to agency when the binding nature of the liability/duty on the person who is so presented by his representative. Thus the person so represented is principal and who represents is agent.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">15. Agency may be expressed or implied agency. Expressed agency is one wherein two parties agree for transaction where one will be acting as agent of another and person so acting as agent for valid acts bind the principal. When agent exercises authority or enters into transaction it will be authority by virtue of authority given by principal and benefit or loss principal is entitled to. Infact many of the principles are similar to that of law of partition. As a matter of fact contract of agency is considered as very partnership is concerned as extension of partnership and the implied authority of an agent.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Appeal allowed.</span></div></p>', '858e642fbfe7bc819e649592e5b5d5f9.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-05', 1, '', '', '2020-12-05 23:48:40', '2021-01-21 22:39:15'),
(125, 'HB1WdZ0SUH046jCIpD55jxkSz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Accused, after obtaining bail absconds and proclaimed by Court as ‘absconding accused’. He is not entitled for anticipatory bail. Karnataka High Court.', '<h4></h4><h3><span style=\"font-size: 1.75rem; font-family: var(--bs-font-sans-serif);\">Chandru vs State of Karnataka. </span></h3><h3><span style=\"font-size: 1.75rem; font-family: var(--bs-font-sans-serif);\">Criminal Petition 6734/2020&nbsp;</span>decided on 4 December 2020. </h3><h3>Justice M.G. Uma</h3><h3></h3><h4><span style=\"text-align: justify; font-size: 1.3125rem; font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">4.</span><span style=\"text-align: justify; font-size: 1.3125rem; font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><b> </b>Admittedly, at the initial stage, this petitioner was granted bail in the present case subject to conditions. It is also admitted that the petitioner has not appeared before the trial Court as directed by the Court while granting bail. It is also admitted that the proclamation under Section 82 of Cr.P.C. is already issued and NBW is pending against the petitioner. Now the question arises as to whether at this stage, the petitioner once again can invoke Section 438 of Cr.P.C. seeking anticipatory bail in this regard.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">It is relevant to mention the decision of the Hon’ble Apex Court in the case of State of Madhya Pradesh vs. Pradeep Sharma reported in (2014) 2 SCC 171 wherein, the Court referred to its earlier judgment in the case of Lavesh vs. State (NCT of Delhi) reported in (2012) 8 SCC 730 extracted paragraph 12 therein and held as under:</span></h4><h4 style=\"text-align: justify;\"><i><b>“16. Recently, in Lavesh v.&nbsp; State (NCT of Delhi), this Court (of which both of us were parties) considered the scope of granting relief under Section 438 vis-à-vis a person who was declared as an absconder or proclaimed offender in terms of Section 82 of the Code. In para 12, this Court held as under:<br></b></i></h4><h4 style=\"text-align: justify;\"><i><b>12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as ‘absconder’. Normally, when the accused is ‘absconding’ and declared as a ‘proclaimed offender’, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail.</b></i></h4><h4 style=\"text-align: justify; \"><b style=\"font-size: 1.3125rem;\">7</b><span style=\"font-size: 1.3125rem;\">. It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail.”In view of the above, the position of law is clear on the subject. The petitioner was already granted bail and he had not complied with the conditions imposed in the said order. The petitioner is already proclaimed as an absconding accused and NBW is issued against him. Therefore, the petitioner is not entitled to seek the discretionary relief of anticipatory bail under Section 438 of Cr.P.C. at this stage.</span><br></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">Hence, the petition is dismissed.</span></h4>', 'b88a330bf83a068f445bd6bd6c5efa23.JPG', '76d822ac5ae72c00df27b813c37bda86.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-30', 1, '', '', '2020-12-06 03:59:58', '2023-01-30 17:05:41'),
(126, 'Hj5pfiWj0SFSwLpjky0v5rnvH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court directs State Election Commission to hold elections for 198 Wards of BBMP at the earliest', '<p style=\"box-sizing: inherit; -webkit-font-smoothing: antialiased; margin: 32px auto; max-width: calc(66.6667vw - 28px); overflow-wrap: break-word;\"><font color=\"#1e1e1e\" face=\"Crimson Text, Baskerville Old Face, Garamond, Times New Roman, serif\"><span style=\"font-size: 15.75px;\"><b>Karnataka High Court directs State Election Commission to hold elections for 198 Wards of BBMP at the earliest. Govt directed to notify reservations.<br></b></span></font><font color=\"#1e1e1e\" face=\"Crimson Text, Baskerville Old Face, Garamond, Times New Roman, serif\"><span style=\"font-size: 15.75px;\"><b>M Shivaraju and another vs The State of Karnataka and another. Writ Petition 10216 OF 2020 (LB-BMP) PIL C/W Writ Petition 11077 OF 2020 (LB-BMP) PIL and Writ Petition 1892 OF 2020 (LB-BMP) PIL decided on 4 December 2020.</b><br></span></font><font color=\"#1e1e1e\" face=\"Crimson Text, Baskerville Old Face, Garamond, Times New Roman, serif\"><span style=\"font-size: 15.75px;\"><br><b>Judgment Link:</b><br></span></font><font color=\"#1e1e1e\" face=\"Crimson Text, Baskerville Old Face, Garamond, Times New Roman, serif\"><span style=\"font-size: 15.75px;\">https://karnatakajudiciary.kar.nic.in/noticeBoard/WP-10216-of-2020-%20BBMP-Elections.pdf</span></font><font color=\"#1e1e1e\" face=\"Crimson Text, Baskerville Old Face, Garamond, Times New Roman, serif\"><span style=\"font-size: 15.75px;\"><br></span></font><font color=\"#1e1e1e\" face=\"Crimson Text, Baskerville Old Face, Garamond, Times New Roman, serif\"><span style=\"font-size: 15.75px;\"><br><b>ORDER </b><br>(i) We direct the State Government to publish the final&nbsp;</span></font><font color=\"#1e1e1e\" face=\"Crimson Text, Baskerville Old Face, Garamond, Times New Roman, serif\"><span style=\"font-size: 15.75px;\">notification of reservations as per clause (c) of sub-section&nbsp;</span></font><font color=\"#1e1e1e\" face=\"Crimson Text, Baskerville Old Face, Garamond, Times New Roman, serif\"><span style=\"font-size: 15.75px;\">(1) of Section 21 of the said Act of 1976 for 198 Wards as&nbsp;</span></font><font color=\"#1e1e1e\" face=\"Crimson Text, Baskerville Old Face, Garamond, Times New Roman, serif\"><span style=\"font-size: 15.75px;\">per the delimitation notification dated 23rd June, 2020. We&nbsp;</span></font><font color=\"#1e1e1e\" face=\"Crimson Text, Baskerville Old Face, Garamond, Times New Roman, serif\"><span style=\"font-size: 15.75px;\">grant time of one month from today to publish the final notification, though, as per the assurance given by the&nbsp;</span></font><font color=\"#1e1e1e\" face=\"Crimson Text, Baskerville Old Face, Garamond, Times New Roman, serif\"><span style=\"font-size: 15.75px;\">Government, as recorded in the order dated 22nd&nbsp;</span></font><font color=\"#1e1e1e\" face=\"Crimson Text, Baskerville Old Face, Garamond, Times New Roman, serif\"><span style=\"font-size: 15.75px;\">September 2020, the same was to be published within two&nbsp;</span></font><font color=\"#1e1e1e\" face=\"Crimson Text, Baskerville Old Face, Garamond, Times New Roman, serif\"><span style=\"font-size: 15.75px;\">weeks from 22nd September 2020;&nbsp;<br></span></font><font color=\"#1e1e1e\" face=\"Crimson Text, Baskerville Old Face, Garamond, Times New Roman, serif\"><span style=\"font-size: 15.75px;\">(ii) We direct the State Election Commission to hold election of&nbsp;</span></font><font color=\"#1e1e1e\" face=\"Crimson Text, Baskerville Old Face, Garamond, Times New Roman, serif\"><span style=\"font-size: 15.75px;\">BBMP as expeditiously as possible by publishing the&nbsp;</span></font><font color=\"#1e1e1e\" face=\"Crimson Text, Baskerville Old Face, Garamond, Times New Roman, serif\"><span style=\"font-size: 15.75px;\">election programme within a maximum period of six weeks&nbsp;</span></font><font color=\"#1e1e1e\" face=\"Crimson Text, Baskerville Old Face, Garamond, Times New Roman, serif\"><span style=\"font-size: 15.75px;\">from the date on which final reservation Notification is&nbsp;</span></font><font color=\"#1e1e1e\" face=\"Crimson Text, Baskerville Old Face, Garamond, Times New Roman, serif\"><span style=\"font-size: 15.75px;\">published;<br></span></font><font color=\"#1e1e1e\" face=\"Crimson Text, Baskerville Old Face, Garamond, Times New Roman, serif\"><span style=\"font-size: 15.75px;\">(iii) We make it clear that elections shall be held for 198 Wards&nbsp;</span></font><font color=\"#1e1e1e\" face=\"Crimson Text, Baskerville Old Face, Garamond, Times New Roman, serif\"><span style=\"font-size: 15.75px;\">as per the notification of delimitation of Wards already&nbsp;</span></font><font color=\"#1e1e1e\" face=\"Crimson Text, Baskerville Old Face, Garamond, Times New Roman, serif\"><span style=\"font-size: 15.75px;\">published on 23rd June, 2020;<br></span></font><font color=\"#1e1e1e\" face=\"Crimson Text, Baskerville Old Face, Garamond, Times New Roman, serif\"><span style=\"font-size: 15.75px;\">(iv) The petitions are allowed on the above terms with no&nbsp;</span></font><font color=\"#1e1e1e\" face=\"Crimson Text, Baskerville Old Face, Garamond, Times New Roman, serif\"><span style=\"font-size: 15.75px;\">orders as to the costs.</span></font></p>', '178a0d6a9451c8ca39b6827e8516a5a4.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-04', 1, '', '', '2020-12-06 04:10:41', '2021-01-21 22:03:12'),
(366, 'OEiq17RA9hcoNdTiDB9hlf23A', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land grabbing charges against H.D.Kumarasway. Karnataka High Court warns initiation of contempt proceedings against the Government officials.', '<p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">On a Contempt of Court Petition (CCC 674/2020) filed by the Samaj Parivartana Samudaya, alleging inaction on the part of the Government officials to implement the earlier order of the Karnataka High Court, the Division Bench headed by the Hon’ble Chief Justice warned the Government officials that it would initiate contempt of court proceedings if the earlier order is not implemented.</span></div><div style=\"text-align: justify;\"><br></div><b>The Court heard the submissions of Mr. A.R.Goutham, Advocate for S. Basavaraj, Advocate, Daksha Legal.&nbsp;</b><br><br><b>Facts of the case. Samaj Parivarthan Samudaya – <br></b></p><div style=\"text-align: justify;\"><b><span style=\"font-size: 0.875rem; font-weight: 400;\">SPS had filed a Public Interest Litigation in Writ Petition 49/2020 seeking directions to the Government of Karnataka to take appropriate action against H.D. Kumaraswamy, D.C. Thammanna and Savithramma for violating various provisions of law dealing with agrarian reforms in the State of Karnataka and also for illegally grabbing lands. SPS also sought a direction to the State Government to implement the order of the Lokayukta in this regard. Hon’ble Court disposed the Writ Petition on 14:1:2020 recording the undertaking of the State Government that it would take action within three months.</span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The Karnataka Lokayukta’s order dated 5:8:2014 related to major land grabbing involving around 200 Acres of land (including 110 Acres of Gomala Land) by H.D. Kumaraswamy, the former Chief Minister of Karnataka, his close relatives and associates D.C. Thammanna, the former Minister for transportation and his sister- in law Savithramma.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">In the relevant portion of the Lokayukta Order, it has been mentioned that Survey No. 7,8,9,10,16 and 17 in Kethaganahalli Village of Bidadi Hobli in Ramanagara Taluk comprising of village common lands in total measuring 110 acres and 32 guntas of Government Pasture Lands (Gomala Land) which the Karnataka State Government had earmarked for public usage such as Lake, Burial Ground and to persons belonging to Scheduled Tribe (ST), and Scheduled Caste (SC), for irrigation purpose has been encroached by various persons.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The encroachment of the granted lands by H.D. Kumaraswamy, D.C. Thammanna and Savitramma is reflected in the letter of the Assistant Commissioner, Ramanagara dated 25:8:2014 under the subject “Ex-Chief Minister Shri H.D. Kumaraswamy, other family members and his close relative MLA Maddur Shri D.C. Tammanna, his family members have grabbed 200 Acres of land including 110 Acres of Gomal lands that needs to be restored to Govt.”. The Assistant Commissioner enclosed a detailed 10 page report entitled the same as the subject of the said letter.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The order of the Hon’ble High Court having not been implemented, SPS approached the Court on the contempt side. The Hon’ble Court expressed its displeasure today over the inaction on the part of the Government and warned that if the order is not complied with in letter and spirit, appropriate contempt of court proceedings would be initiated against the officials concerned.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The matter is adjourned to 16 February 2021.</span></div><p></p>', '74f1b276e83b800f1ee238b28339f202.png', 'f5afb0560d8d6ffc43e18943bee9da11.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-21', 0, '', '', '2021-01-22 06:06:21', '2021-01-22 15:08:45'),
(2559, 'RbQ1DGFvwqSIFy1MmB9JiRBaS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'The specified value and suit valuation in IPR suits below Rs. 3 lakhs shall be examined by the Courts to ensure it is not arbitrary or unreasonable and the suit is not undervalued. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bangalore Blues Entertainment India Private Limited Vs One Ikigaii Edutech Private Limited and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Miscellaneous First Appeal 6392 of 2022 decided on 2 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ravi V. Hosmani.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. In said suit plaintiff filed IA no.1 for temporary\r\ninjunction under Order XXXIX Rules 1 and 2 of CPC in respect of\r\nbuilding by name \'Swamy Legato\' constructed over land bearing\r\nnew Sy.no.20./7, old Sy.no.20/4, Kadubisanahalli village,\r\nMarthahalli Outer Ring road, Bengaluru - insofar as 4th floor with\r\nsuper built up area of 7454 sq.ft., 5th floor with super built up area\r\nof 4064 sq. ft. and terrace open area of 3390 sq.ft. with four car\r\npark spaces in basement and 7 car par spaces on ground floor of\r\nsaid building (for short \'suit property\').</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Said application said application was opposed by\r\ndefendant no.1. On consideration, trial Court passed impugned\r\norder allowing I.A.no.1 and restraining defendants from interfering\r\nwith possession of plaintiff over suit property. Challenging same\r\nthis appeal is filed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. From contentions urged, only point that arises for\r\nconsideration is:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\"Whether impugned order passed by trial Court\r\nallowing I.A.no.1 filed by plaintiff under Order\r\nXXXIX Rules 1 and 2 of CPC calls for\r\ninterference?\" <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. Since, maintainability of suit before Civil Court as suit\r\nwould lie before Commercial Court is urged, same is take up for\r\nconsideration upfront. There is no dispute about fact that lease\r\nagreement between plaintiff and defendant no.1 was for exclusive\r\nuse of suit premises for commercial purposes. But, this Court in\r\nFine Footwear Pvt. Ltd. (supra), held that unless both of twin\r\nrequirements existed, dispute would not be a ‘commercial dispute’.\r\nTherefore, whether ‘specified value’ as per Section 12 is more than\r\nRs.3,00,000/-, is required to be determined.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. In view of clear recital in lease agreement that suit\r\nproperty was being used for running Bar and Restaurant, first\r\nrequirement would be met. Further as per Section 12(1)(c) of C.C.\r\nAct, specified value of suit in respect of immovable property, would\r\nbe market value of such immovable property as on date of filing\r\nsuit. Explanation to Section 2(1)(c)(a) of C.C. Act states that\r\ncommercial dispute shall not cease to be a commercial dispute\r\nmerely because it involves \"any other relief pertaining to\r\nimmovable property.\"</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n23. Admittedly, monthly rental value of suit premises, as\r\nper lease agreement is Rs.7,88,955/-, which would be more than\r\nRs.3,00,000/-, therefore, prima facie both requirements appear to\r\nbe met. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">27. One of main concerns addressed in Vishal Pipes Ltd.,\r\n(supra) was avoiding deliberate undervaluation to maintain suit\r\nbefore Civil Court and forum hunting, which was sought to be\r\ncurtailed by directing all matters concerning commercial disputes to\r\nbe filed only before Commercial Court, even if ‘specified value’ was\r\nless than Rs.3 Lakhs and requiring its examination by Commercial\r\nCourt. But possibility of such determination process itself, clogging\r\n‘Commercial Courts’ affecting timeline for disposal of commercial\r\ndisputes cannot be lost sight of. Hon’ble Supreme Court in Ambalal </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Sarabhai Enterprises Ltd. has cautioned about ill-effects of\r\nclogging of Commercial Courts.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>28. At same time, when CC Act does not bar suit with\r\nspecified value below Rupees Three Lakhs being filed before Civil\r\nCourt, instead of compelling all suits involving Commercial disputes\r\nfrom being filed before Commercial Courts, it would be appropriate\r\nto adopt procedure evolved by this Court in CRP.no.545/2022\r\ndisposed of on 13.12.2022.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">29. In said petition, while deciding legality of rejection of\r\ndefendant’s contention about lack of jurisdiction of Civil Court, this\r\nCourt directed plaintiff to specifically state in plaint ‘specified value’\r\nas per provisions of CC Act, which trial Court would verify while\r\ndeciding its jurisdiction, before proceeding to entertain suit and to\r\nreturn it for re-presentation before Commercial Court, in case, it\r\nwas not. Such measure would prevent Commercial Courts from\r\nbeing clogged with determination of ‘specified value’ and would also\r\nbe in tune with Fine Footwear Pvt. Ltd. (supra).</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">31. Until determination of specified value of subject matter\r\nof suit as per Section 12 of CC Act, suit cannot be held to be not\r\nmaintainable by referring to rental value etc. of suit premises,\r\nwhich would not be as per method of assessment provided under\r\nSection 12 of CC Act. Therefore, answer to point under </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">consideration would be subject to determination of \'specified value\'\r\nby Trial Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. Appeal is disposed of directing plaintiff to\r\nplead regarding specified value of suit,\r\nwithin 15 days from today. Trial Court is\r\ndirected to determine whether same would\r\nbe below threshold limit specified in CC Act\r\nand consequently decide on its jurisdiction\r\nto entertain suit, as expeditiously as\r\npossible therefrom after providing\r\nopportunity to defendants also, but not later\r\nthan 30 days.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ii. In case, suit is held not maintainable,\r\ninterim injunction would stand vacated with\r\nliberty to plaintiff to seek said relief before\r\nCommercial Court. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8cc17446fafef109c9b181bfb558cb76.JPG', 'ce0d8f364723945a1f6a2cd48b9454fe.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-13', 1, '', '', '2023-01-12 15:32:40', '2023-01-13 07:01:57'),
(2558, 'jiFI8QtucR4jGEld3bKYKFP1M', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Valuation of Suit. Suit for specific performance. Only value of the property shown in the agreement has to be considered for the purpose of jurisdiction. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Husensab Vs Basayya and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 100033 of 2019 decided on 30 September 2020.<o:p></o:p></b></span></p><p><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Justice Suraj Govindaraj</b></span></p><p><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. On the basis of the submissions made by Sri.Mrutyunjay Tata Bangi, learned counsel for the petitioner, the questions which would arise for determination are: </b></font></span></p><p><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(1) Whether the Plaintiff is free to value the Suit in any manner it deems fit and just, by making payment of the court fee could such a plaintiff change the jurisdiction of the Court?</b></font></span></p><p><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (2) Whether in a suit for specific performance, it is only the value of the property shown in the said agreement that would have to be considered for the purpose of jurisdiction or would any other item like cost of issuance of legal notice be included so as to increase the valuation. </b></font></span></p><p><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(3) What would be the role of the Court in the event of an artificial increase in the valuation altering the jurisdiction of the Court? Provisions of Order VII Rule 10 & 10A, 10B, Civil Procedure Code, Section 40 and 50 of the Karnataka Court Fees and Suits Valuation Act are noticed. </b></font></span></p><p><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.5 ….a party cannot by artificially inflating the valuation or undervaluing the Suit be allowed to file a particular suit before a Court which would in the absence of such incorrect valuation not have any jurisdiction to try the matter. Merely because the Plaintiff is willing to pay higher court fee by inflating the valuation, he cannot be permitted to do so since the hierarchy of the Court dictates that particular Suit with particular valuation would have to be filed and tried by a particular Court, thus, giving rise to a vested right to the defendant that the Suit of particular nature of particular valuation would be tried by that particular Court only and not by any other Court. Paragraphs 10.2, 10.3, 10.4 & 10.5 … where the Suit is for a specific performance of contract of sale, the fee shall be computed on the amount of consideration. In the present case, apart from the valuation made as regards the consideration under the agreement of sale, the Plaintiff has added another item, namely the cost of issuance of legal notice to totally value the Suit at Rs.5,01,000/-. It is only by the addition of the relief, in this instance, towards legal notice, namely Rs.1,000/- that the valuation came to be increased in such a manner that the jurisdiction of the Court itself came to be changed. This in my considered opinion is not permissible. Paragraphs </b></font></span></p><p><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.1 & 11.2 The Court would have to carefully examine the mode and methodology of the valuation made by the Plaintiff, more particularly when such a valuation would have the impact of altering the jurisdiction of the Court. The court cannot merely on the basis of the of the Plaintiff being willing to make payment of the court fee permit such a plaintiff to value the Suit at his whims and fancies and make payment of the stamp duty on that basis. The Court while dealing with the same and more so on an application under Order VII Rule 10 of the CPC would have to determine the valuation. The Court would also have to separate the main relief from the ancillary relief in order to ascertain the valuation for the purpose of jurisdiction and that for payment of court fee separately and come to a finding that it is competent to take up the matter and that the Suit has been filed in a proper and competent court.</b></font></span><br></p>', '2d93a71c9cf94fe63020263291b91c0e.JPG', '2864f39a220f913d4ebc78d07b9d7048.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-12', 1, '', '', '2023-01-12 10:21:45', '2023-01-12 10:23:44');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(142, 'jVQs8M5gWcOh6WfAIoGArFeQ9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Consent Divorce. Parties can be represented by their parents or siblings as GPA holders. ', '<h4 style=\"text-align: justify;\">Aditya Jagannath and another vs NIL . M.F.A.No.4453/2020 (FC) decided on 10 November 2020.</h4><h4 style=\"text-align: justify;\">Judgment Link: <a href=\"https://karnatakajudiciary.kar.nic.in/noticeBoard/MFA-4453-2020.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/noticeBoard/MFA-4453-2020.pdf</a></h4><h4 style=\"text-align: justify;\">HELD: 26. Permission is granted to the second appellant to be represented through her Power of Attorney holder, who is none other than her father on the strength of the Special Power of Attorney executed by her.</h4><h4 style=\"text-align: justify;\">Relevant paragraphs: 16. In recent times, we find that the parties who seek for dissolution of their marriage by a decree of divorce by mutual consent do so after long negotiation and discussion, some times they, being located at different parts of the globe, through skype, telephonically or use of other forms of technology, such as whatsapp calls, video conferencing etc. On account of the parties residing in different parts of the country or across the globe and owing to constraints of job or other constraints, such as illness etc., it may not be possible for both parties to sign and verify the pleadings and jointly present the petition for dissolution of their marriage by mutual consent before the Court of Law. This is so in the instant case. In such circumstances, one of the parties to the petition may avail of the facility of appointing a Power of Attorney/agent, in whom the party has full trust and confidence to represent her or him in a proceeding to be filed as in the instant case before the Family Court or any other Court seeking matrimonial or any other relief. Therefore, the provisions of the various enactments must be harmoniously read and interpreted, so as to make it conducive for availing or taking recourse through appointment of a Power of Attorney holder, to represent a party in a proceeding. This is particularly, as in the instant case, where parties are seeking dissolution of their marriage by a decree of divorce by mutual consent. Moreover, in such cases, a party can carefully think over the matter and appoint a person in whom the party would have full trust and confidence to be as her or his Power of Attorney holder. It is on the strength of such a document of Power of Attorney that the Power of Attorney holder would represent a party to jointly file a petition for dissolution of their marriage through mutual consent on behalf of the executor or Power of Attorney. The Family Court may insist on satisfying itself that indeed the parties have an intention that they should seek a decree of divorce by mutual consent and in order to fully satisfy itself, the Court may, apart from examining the Power of Attorney holder representing any party, also through video conferencing, (which is now widely being used on account of the Covid-19 pandemic), examine the parties including the party who is represented through the Power of Attorney holder. That merely because one of the parties would file the petition seeking dissolution of marriage by mutual consent jointly with the other party, through a Power of Attorney, one cannot ignore the fact that the Court must satisfy itself about the genuineness of the petition filed by the parties seeking dissolution of their marriage by a decree of divorce by mutual consent irrespective of whether it is filed through a Power of Attorney. In fact, the filing of such a petition is an exception to what has been stated in Section 23 of the Act. Even so, the Court ought not to be pedantic but must apply a flexible procedure which is in accordance with law and not a procedure, but not one which is incongruent in law.</h4><h4 style=\"text-align: justify;\">17. In fact, recently, the Hon’ble Supreme Court in the case of Amardeep Singh vs. Harveen Kaur [(2017) 8 SCC 746] while considering Section 13B(2) of the Act, which stipulates a cooling off period of six months which is also a period of locus poenitentiae, after filing a petition of divorce under Section 13B(1) of the Act, so as to give an opportunity to the parties to rethink over the decision and thereafter, to confirm their decision six months later, has made the said provision less rigid and more pro-litigants by bearing in mind the changed circumstances and peculiarities of the case. Nevertheless, in the said case, it has been observed that the period of six months should be waived owing to the circumstances of the particular case, the exigencies of the situation and bearing in mind the interest of the parties so that justice would be subserved in the matter. In this regard, the Hon’ble Supreme Court has observed that the period mentioned in Section 13B(2) could be construed to be as directory and not mandatory and it would be open to the Court to exercise its discretion in the facts and circumstances of each case, where there are no possibilities of parties to reconcile, cohabit and there are no chances of alternative rehabilitation.</h4><h4 style=\"text-align: justify;\">18. A reading of the above would clearly indicate that the Hon’ble Supreme Court has also made it flexible in the context of representation of the parties by their close relatives, partners or siblings or any other person in whom they have complete trust to be appointed as a Power of Attorney holder. In fact, as already noted, the Court can always satisfy itself about the genuineness of the intention of the parties who approach the Court either by themselves or through a Power of Attorney holder by way of video conferencing, so that any doubts about the genuineness of the petition being filed before the Court is removed.</h4><h4 style=\"text-align: justify;\">19. On a perusal of the aforesaid observations of the Hon’ble Supreme Court, it is clearly permissible for the parties to be represented by their partners or siblings in a proceeding filed under Section 13B(1) of the Act or any other similar provision in any other enactment, which provides for dissolution of marriage by a decree of divorce by mutual consent.</h4><h4 style=\"text-align: justify;\">20… Moreover, for the sake of satisfying and genuineness of the petition, the Family Court could always resort to video conferencing through the medium of which, both the parties could appear apart from the Power of Attorney holder of the second appellant appearing for her, so as to completely satisfy itself about the genuineness of the petition filed by the parties just as presently in this appeal, the appellants have both appeared through video conferencing, first appellant from Bengaluru and the second appellant from Toranto, Canada.</h4><h4 style=\"text-align: justify;\">26. Permission is granted to the second appellant to be represented through her Power of Attorney holder, who is none other than her father on the strength of the Special Power of Attorney executed by her.</h4><h4 style=\"text-align: justify;\">27. Further, in order to satisfy itself, the Family Court is at liberty to direct the parties especially the second appellant to appear through video conference or skype, before the Court and if such a direction is issued, the second appellant shall comply with the said direction.</h4><h4 style=\"text-align: justify;\">Judgments cited/relied on: </h4><h4 style=\"text-align: justify;\">Komal S. Padukone vs. Principal Judge, Family Court [ILR 1999 KAR 2811], </h4><h4 style=\"text-align: justify;\">Harshada Bharat Deshmukh vs. Bharat Appasaheb Deshmukh [AIR 2018 Bombay 148], </h4><h4 style=\"text-align: justify;\">Sudha Ramalingam vs. Registrar General, High Court of Judicature at Madras [AIR 2015 (NOC) 266 (MAD)], </h4><h4 style=\"text-align: justify;\">Kunhi Purayil Mukundan Naveen vs. Anjalika Dinesh [AIR 2011 (KER) 186], </h4><h4 style=\"text-align: justify;\">Dasam Vijay Rama Rao vs. M.Sai Sri [ALD-2015-4-757], </h4><h4 style=\"text-align: justify;\">Amardeep Singh vs. Harveen Kaur [(2017) 8 SCC 746], </h4><h4 style=\"text-align: justify;\">Komal S. Padukone vs. Principal Judge, Family Court at Bangalore City [ILR 1999 KAR 2811], </h4><h4 style=\"text-align: justify;\">Harshada Bharat Deshmukh vs. Bharat Appasaheb Deshmukh [AIR 2018 Bombay 148], </h4><h4 style=\"text-align: justify;\">Sudha Ramalingam vs. Registrar General, High Court of Judicature at Madras [AIR 2015 (NOC) 266 (MAD.)], </h4><h4 style=\"text-align: justify;\">Dasam Vijay Rama Rao vs. M.Sai Sri [ALD-2015-4-757].</h4><h4 style=\"text-align: justify;\"><br></h4><h4 style=\"text-align: justify;\"><br></h4>', '9d7a80e3fe8ff4763954442dffab0baf.PNG', '258799343ade26b4f083a5f5e03ca2ce.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-10', 1, '', '', '2020-12-06 05:39:56', '2021-08-22 00:17:20'),
(129, 'sUGsyKQOarZB6QzVL7TIO0Jkh', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'MMDR Act Offences causing serious ecological imbalance must be met with stringent actions. ', '<h4><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">MMDR Act. Offences causing serious ecological imbalance must be met with stringent actions. Mere compounding not enough. Supreme Court.Jayant Etc. vs The State of Madhya Pradesh. Criminal Appeal 824-825/2020 decided on 3 December 2020.</b></div><br><b>Judgment Link: </b></h4><h4><a href=\"https://main.sci.gov.in/supremecourt/2020/12111/12111_2020_34_1502_24918_Judgement_03-Dec-2020.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/12111/12111_2020_34_1502_24918_Judgement_03-Dec-2020.pdf</a></h4><h4><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant Paragraphs:&nbsp;</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">11. Now so far as the submission on behalf of the private appellants ­violators that in view of the fact that violators were penalty determined by the appropriate authority forcompounding the offences/violations, there cannot be any</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">further criminal proceedings for the offences under Sections 379 and 414 IPC and Sections 4/21 of the MMDR Act and the reliance placed on Section 23A of the MMDR Act is concerned, it is true that in the present case the appropriate authority determined the penalty under Rule 53 of the 1996 Rules/Rule 18 of the 2006 Rules, which the private appellants ­violators paid and therefore the bar contained in sub­section 2 of Section 23A of the MMDR Act will be attracted. Section 23A as it stands today has been brought on the Statute in the year 1972 on the recommendations of the Mineral Advisory Board which provides that any offence punishable under the MMDR Act or any rule made thereunder may, either before or after the institution of the prosecution, be compounded by the person authorised under section 22 to make a complaint to the court with respect to that offence, on payment to that person, for credit to the Government, of such sum as that person may specify. Sub­section 2 of Section 23A further provides that where an offence is compounded under sub­section (1), no proceeding or further proceeding, as the case may be, shall be taken against the permitted to compound the violation in exercise of powers under Rule 53 of the 1996 Rules or Rule 18 of the 2006 Rules and the violators accepted the decision and deposited the amount of penalty determined by the appropriate authority for compounding the offences/violations, there cannot be any further criminal proceedings for the offences under Sections 379 and 414 IPC and Sections 4/21 of the MMDR Act and the reliance placed on Section 23A of the MMDR Act is concerned, it is true that in the present case the appropriate authority determined the penalty under Rule 53 of the 1996 Rules/Rule 18 of the 2006 Rules, which the private </span>appellants violators<span style=\"font-size: 1.3125rem;\">&nbsp;paid&nbsp;</span><span style=\"font-size: 1.3125rem;\">and therefore the bar contained in sub­section 2 of Section 23A of the MMDR Act will be attracted. However, our above conclusions are considering the provisions of Section 23A of the MMDR Act, as it stands today. It might be true that by permitting the violators to compound the offences under the MMDR Act or the rules made thereunder, the&nbsp;</span><span style=\"font-size: 1.3125rem;\">State may get the revenue and the same shall be on the principle of person who causes the damage shall have to compensate the damage and shall have to pay the penalty like the principle of polluters to pay in case of damage to the environment. However, in view of the large scale damages being caused to the nature and as observed and held by this Court in the case of Sanjay (supra), the policy and object of MMDR Act and Rules are the result of an&nbsp;</span><span style=\"font-size: 1.3125rem;\">increasing awareness of the compelling need to restore the serious ecological imbalance and to stop the damages being caused to the nature and considering the observations made by this Court in the aforesaid decision, reproduced hereinabove, and when the violations like this are increasing and the serious damage is caused to the nature and the earth and it also affects the ground water levels etc. and it causes severe damage as observed by this Court in the case of Sanjay (supra), reproduced hereinabove, we are of the opinion that the violators cannot be&nbsp;</span><span style=\"font-size: 1.3125rem;\">permitted to go scot free on payment of penalty only. There must be some stringent provisions which may have deterrent effect so that the violators may think twice before committing such offences and before causing damage to the earth and the nature. It is the duty cast upon the State to restore the ecological imbalance and to stop damages being caused to the nature. As observed by this Court in the case of Sanjay (supra), excessive instream sand ­and ­gravel mining from river beds and like resources causes the degradation of rivers. It is further observed that apart&nbsp;</span><span style=\"font-size: 1.3125rem;\">from threatening bridges, sand mining transforms the riverbeds into large and deep pits, as a result, the groundwater table drops leaving the drinking water wells on the embankments of these rivers dry. Even otherwise, sand/mines is a public property and the State is the custodian of the said public property and therefore the State should be more sensitive to protect the environment and ecological balance and to protect the public property the State should always be in favour of taking very stern action against the violators who are creating serious ecological&nbsp;</span><span style=\"font-size: 1.3125rem;\">imbalance and causing damages to the nature in any form. As the provisions of Section 23A are not under challenge and Section 23A of the MMDR Act so long as it stands, we leave the matter there and leave it to the wisdom of the legislatures and the concerned States.</span></div></h4><h4><div style=\"text-align: justify;\"><b><br></b></div><span style=\"font-size: 1.3125rem;\"><b>Compiled by S. Basavaraj, Advocate, Daksha Legal, Bengaluru</b></span><br></h4>', '8db76a722db42871176784c7d4a8200b.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-03', 1, '', '', '2020-12-06 04:25:21', '2021-01-21 21:54:47'),
(130, 'zU5eGhYrkd2aaVUzlednXrVeS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'NDPS Act, Detention of accused beyond 180 days must satisfy condition', '<h4>NDPS Act, 1985. Detention of accused beyond 180 days must satisfy two conditions – reporting progress of investigation and specific reason for detention beyond 180 days. Mere application for extension of time is not enough. Karnataka High Court.<br>Magoola John vs State of Karnataka. Criminal Petition 5935/2020 decided on 26 November 2020.<br><br><b>Judgment Link: </b></h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/350690/1/CRLP5935-20-26-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/350690/1/CRLP5935-20-26-11-2020.pdf</a></h4><h4><br><b>Relevant paragraphs: </b><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">11.Be that as it may. Even as could be seen from Section 36(A)(4) proviso indicates that if any person has been charged for the offence under the said Act for the purpose of filing of the charge sheet is 180 days time has been provided. Proviso to the said Section enables the Investigating Agency, if within 180 days if it is not possible to complete the investigation, then it can move the application before the Special Court for extension of&nbsp; the said period up to one year. But in order to file an&nbsp; application it has to fulfill two conditions. The first&nbsp; condition is that the prosecution has to indicate the progress of the investigation made till that date and the second condition is the specific reason for detention of the accused beyond the said period of 180 days. But&nbsp; on&nbsp; perusal of the application filed by the learned Public Prosecutor, no such reasons have been assigned except stating that, for the purpose of filing of the charge sheet, FSL report is an important document and when the charge sheet cannot filed and the FSL report has also not come, as such 180 days has to be extended.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">12. Be that as it may. Even as could be seen from the records, the said application has been filed&nbsp; on&nbsp; 4.9.2020 and immediately thereafter the Court has issued the notice to the accused for his reply and the order sheet indicates that he has filed his objections to the said application on 9.9.2020 and even at that time also no order has been passed by the trial Court either extending the time&nbsp; or&nbsp; giving any reasons on the application filed under Section 167(2) of Cr.P.C. When the time of 180 days is going to be expired on 6.9.2020, before that or on the same day, the Court could have passed an order either extending of time&nbsp; or otherwise. When an application has been filed for the purpose of extension of time on 4.9.2020 and the accused was admittedly in judicial custody, the trial Court ought to have taken into consideration the statutory right&nbsp; available to the accused and it could have been expedited on&nbsp; or before 6.9.2020. When the Court has not exercised its power on the application filed under Section 36(A)(4) of NDPS Act for extension, then the statutory right which has been there to the accused accrues immediately after 180 days and if an application has been filed by the accused&nbsp; and if it is pending, then the right will be there to get him released on bail.</span></div></h4><h4><span style=\"font-size: 1.3125rem;\"><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal</b></span><br></h4>', '71523184420aedb4e8046e62b3a2f695.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-26', 1, '', '', '2020-12-06 04:36:30', '2021-01-21 17:16:25'),
(153, 'NwvGcCfeb9mKryG5nCk4vzI5c', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Specific Relief Act. Section 28. Executing Court can rescind the agreement of sale and anull the decree for specific performance', '<h3>Specific Relief Act. Section 28. Executing Court can rescind the agreement of sale and anull the decree for specific performance- Karnataka High Court.</h3><h4><br>Specific Relief Act, 1963 – Section 28(1) – Rescission of Contract – Parameters – Sale Agreement annulled at execution stage.T.L. Rajagopal v. S.N. Shivakumar, 2014 SCC OnLine Kar 10072 : ILR 2014 KAR 4035 : (2014) 3 KCCR 2182 : (2014) 4 AIR Kant R 701 : (2014) 6 Kant LJ 423 : (2014) 4 ICC 275 : AIR 2015 (NOC 433) 160, at page 4052 :</h4><h4><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">HELD: </b><span style=\"font-size: 1.3125rem;\">Decree for specific performance being in the nature of a preliminary decree, the Court after passing of the said decree does not become functus officio. It retains the jurisdiction to conclude the further steps to be taken in the suit. The decree holder chooses to file an execution petition for getting the sale deed registered through the Court when the defendant who suffered the decree fails to obey the same. Though called ‘execution proceedings’, it is nothing but continuation of the original suit. In a suit for partition, after the preliminary decree is passed, to give effect to the preliminary decree, it is necessary to initiate final decree proceedings. But in a suit for specific performance it is called as ‘execution proceedings’. Thus when the Court that passed the decree for specific performance and the Court executing the said decree are one and the same, Section 28 of the Act gives equal opportunity to the parties to the suit. If the plaintiff/decree holder for any reason is unable to deposit the balance sale consideration, he is given a right to apply to the Court that passed the decree seeking extension of time to deposit the money and the Court is vested with the power to grant such extension. At the same time when the plaintiff commits default in making payment, a right is conferred upon the defendant/judgment debtor to approach the Court under Section 28 of the Act seeking rescission of the contract. Here again the Court has the discretion to rescind the contract notwithstanding the fact that the decree has attained finality.</span></div></h4><h4><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Judgment</b><span style=\"font-size: 1.3125rem;\">:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">KUMAR, J.:— This writ petition is preferred by the defendant/judgment debtor challenging the order passed by the Executing Court dismissing his application under Section 28(1) of the Specific Relief Act, 1963 (Hereinafter referred to as ‘The Act’ for short).</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">2. For the purpose of convenience, the parties are referred as per their original rank in the suit.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">3. The plaintiff filed a suit for a decree of specific performance of the agreement of sale dated 16.08.1997 against the defendant alleging that the defendant had agreed to sell the schedule property in his favour for Rs. 4,60,000/-. Under the said agreement a sum of Rs. 1,75,000/- was paid as advance by him. The balance sale consideration of Rs. 2,85,000/- had to be paid at the time of registration of the sale deed. He was constrained to file the suit when the defendant failed to execute the sale deed in his favour as agreed. Though duly served with the suit summons, the defendant did not contest the suit and therefore, the decree came to be passed on 26.03.2003 directing the defendant to receive the balance sale consideration from the plaintiff and to execute the registered sale deed failing which he was reserved the liberty of taking steps to get the sale deed executed and registered through the Court Commissioner by depositing the balance sale consideration amount after the appeal time is over.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">4. After the decree, the plaintiff issued a notice to the defendant expressing his readiness to pay the balance sale consideration and called upon the defendant to receive the consideration and execute the sale deed. The defendant did not oblige. Therefore, the plaintiff filed Ex. No. 34/2003 to execute the decree.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">5. The record shows that the judgment debtor/defendant, to stall the execution proceedings not only filed an application under Order XXI Rule 97 of CPC but also got filed another application under the same provision through his daughter-in-law. However these applications came to be dismissed by the Executing Court. Thereafter, the defendant/judgment Debtor filed I.A. 7 under Section 28 of the Act on 08.03.2011 for rescission of the contract and dismissal of the execution petition.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">6. It is the defendant/judgment debtor’s case that the suit came to be decreed exparte on 26.03.2003 and the time to file an appeal against the exparte decree expired on 25.04.2003. The decree is silent as to the outer limit within which the plaintiff should deposit the balance sale consideration from 25.04.2003 and therefore the exparte decree passed in favour of the plaintiff/decree holder is a nullity being contrary to the provisions of Section 28 of the Act. Further the decree holder has not deposited the balance amount till date and therefore, the alleged contract of sale agreement needs to be rescinded and cancelled in the interest of justice and equity. The decree is not executable. The plaintiff/decree holder filed objections to I.A. 7 and sought its dismissal contending that since the defendant/Judgment Debtor failed to comply with the decree, he initiated the execution proceedings well in time and the question of depositing the amount would arise only at the time of the execution of the registered sale deed.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">7. The executing Court, after considering the rival contentions and taking note of the decisions relied on by the parties, has dismissed the I.A. holding that no time limit is prescribed in the decree for depositing the balance sale consideration, by the plaintiff. After passing of the decree, the decree holder has filed the execution case only after issuing notice to the judgment debtor stating that he is ready with the balance sale consideration. The defendant did not reply to the notice nor came forward to comply with the decree. Nor has the judgment debtor filed any appeal against the exparte judgment and decree. On the other hand, he got an application filed through his son seeking stay of the further proceedings in the execution petition and another application through one Parvathi under Order XXI Rule 97 of CPC to stall the execution of the proceedings. The Decree holder in fact has deposited the balance sale consideration in the Court on 14.07.2011. The judgment debtor has not come to the Court with clean hands and therefore he is not entitled to the discretionary relief.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">8. The present writ petition is filed against the above order passed by the executing Court.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">9. Learned Counsel for the defendant/judgment Debtor assailing the impugned order argued that, under the terms of the decree, the plaintiff was expected to deposit the balance sale consideration after expiration of the time prescribed for filing an appeal and therefore, the executing Court could not have held that no time is fixed for payment of the sale consideration. Secondly, it was argued that even after filing of the execution petition, balance sale consideration was not deposited and it was deposited only after the Judgment debtor filed I.A. 7 under Section 28 of the Act. The plaintiff/decree holder had not even filed an application seeking extension of time to deposit the balance sale consideration. The decree is dated 26.03.2003 and the balance sale consideration is deposited nearly 8 years thereafter i.e., on 14.07.2011. In view of these circumstances, it was urged that the agreement entered into by the parties is to be rescinded in terms of Section 28 of the Act and execution petition be dismissed. :</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">10. Per contra, Learned Counsel for the plaintiff/decree holder arguing in support of the impugned order submitted that, as no time is fixed in the decree, the decree holder, after passing of the decree, issued notice expressing his readiness and willingness to pay the balance sale consideration and obtain the sale deed. When this request was not acceded to, the decree holder was constrained to file the execution petition within five months, which conduct clearly demonstrates that, he was ready to perform his part of the contract. The execution petition was stalled by the judgment debtor by filing applications after applications through his daughter-in-law as well as the son for which the decree holder cannot be blamed. In fact, the decree holder has deposited the amount on 14.07.2011. I.A. 7 is not maintainable on the execution side and it ought to have been filed in the original suit itself as is clear from the provisions of Section 28 of the Act.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">11. In the light of the aforesaid facts and rival contentions, the points that arise for my consideration in this writ petition are as under:—</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">1. Whether an application U/s. 28 of the Act is maintainable on the original side or in the execution proceedings initiated by the decree holder to execute the decree?</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">2. Whether the Judgment debtor has made out a case for rescission of the contract as provided U/s. 28 of the Act?</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">12. In order to answer the above questions, it is necessary to have a look at Section 28 of the Act which deals with rescission of contracts for sale or lease of immovable property in certain circumstances when already specific performance has been decreed by the Court. The said provision reads thus:—</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed. —</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(2) Where a contract is rescinded under subsection (1), the court:—</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and if the justice of the case so requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(3) If the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (I), the court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(a) the execution of a proper conveyance or lease by the vendor or lessor;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(5) The costs of any proceedings under this section shall be in the discretion of the court.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">13. Therefore, to invoke the above provision, the person who has obtained a decree for specific performance ought to have failed to pay the money or other sum which the Court has ordered him to pay, within the period allowed by the decree or such further period as the Court may allow. In such an event the person who has suffered the decree has a right to apply to the Court in the same suit in which the decree was passed to have the contract rescinded. On such an application being made, the Court may by order rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require. Once such an order for rescission of contract is made, the Court shall direct the purchaser or the lessee, if, he has obtained the possession of the property under the contract, to restore such possession to the vendor or lessor and also may direct payment to the vendor or lessor to pay the rents and profits which have accrued in respect of the property from the date on which the possession was obtained by the purchaser or lessee until restoration of possession to any vendor or lessor, and if the justice of the case so requires, the refund of any sum paid by the vendee or lessee or earnest money or deposit in connection with the contract.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">14. The question whether an application under Section 28 of the Act is to be made in the same suit in which the decree is passed, has been the subject matter of interpretation by various High Courts in the country. In view of divergent opinion expressed by various High Courts, the Apex Court had an occasion to consider the same in the case of Ramankutty v. Avara1 where in para 6 it is held as under.“6. The question then emerges is whether it should be on the original side or execution side. Section indicates that it should be “in the same suit”. It would obviously mean in the suit itself and not in the execution proceedings. It is equally settled law that after passing the decree for specific performance, the Court does not cease to have any jurisdiction. The court retains control over the decree even after the decree has been passed. It was open to the court to exercise the power under Section 28(1) of the Act either for extension of time or for rescinding the contract as claimed for. Since the execution application has been filed in the same court in which the original suit was filed, namely, the court of first instance, instead of treating the application on the execution side, it should have as well been numbered as an interlocutory application on the original side and disposed of according to law. In this view, we feel that the Andhra Pradesh High Court is not correct. The High Court, therefore, is not right in dismissing the application treating of transferring it on the original side for dealing with it according to law.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">15. The Apex Court in the case of V.S. Plalanichamy Chettiar Firm v. C. Alagappan2 has reiterated above position of law in para 16 of the judgment:“16. In view of the decision of this Court in Ramankutty Guptan’s case (1994) AIR SCW 1533) when the trial Court and the executing Court are same, executing Court can entertain the application for extension of time though the application is to be treated as one filed in the main suit. On the same analogy, the vendor judgment—holder can also seek rescission of the contract of sale or take up this plea in defence to bar the execution of decree. One of the ground on which the trial Court dismissed the execution application was that the decree holder did not pay the balance of consideration as per the sale agreement and also did not pay within the time stipulated by the Court in the decree.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">16. Again in the case of Chanda (Dead) through LRs. v. Rattni3. at para 10 the Apex Court has held that:“10. The decree for specific performance has been described as a preliminary decree. The power under Section 28 of the Act is discretionary and the Court cannot ordinarily annul the decree once passed by it. Although the power to annul the decree exists yet Section 28 of the Act provides for complete relief to both the parties in terms of the decree. The Court does not cease to have the power to extend the time though the trial Court had earlier directed in the decree that payment of balance price to be made by certain date and on failure suit to stand dismissed. The power exercisable under this Section is discretionary.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">17. In the light of the ratio laid down in the aforementioned judgments, the law on the point can be said to be fairly settled: A decree for specific performance being in the nature of a preliminary decree, the Court after passing of the said decree does not become functus officio. It retains the jurisdiction to conclude the further steps to be taken in the suit. The decree holder chooses to file an execution petition for getting the sale deed registered through the Court when the defendant who suffered the decree fails to obey the same. Though called ‘execution proceedings’, it is nothing but continuation of the original suit. In a suit for partition, after the preliminary decree is passed, to give effect to the preliminary decree, it is necessary to initiate final decree proceedings. But in a suit for specific performance it is called as ‘execution proceedings’. Thus when the Court that passed the decree for specific performance and the Court executing the said decree are one and the same, Section 28 of the Act gives equal opportunity to the parties to the suit. If the plaintiff/decree holder for any reason is unable to deposit the balance sale consideration, he is given a right to apply to the Court that passed the decree seeking extension of time to deposit the money and the Court is vested with the power to grant such extension. At the same time when the plaintiff commits default in making payment, a right is conferred upon the defendant/judgment debtor to approach the Court under Section 28 of the Act seeking rescission of the contract. Here again the Court has the discretion to rescind the contract notwithstanding the fact that the decree has attained finality.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">18. Specific performance being a discretionary relief, the Court has ample power to do justice between the parties, if anyone of them were to not act in terms of the decree. As such the contention that an application under Section 28 of the Act ought to be filed in the suit and not in execution proceedings cannot be accepted. I.A. 7 filed under Section 28 of the Act by the defendant/judgment debtor in the execution proceedings seeking rescission of contract therefore is perfectly maintainable and it is to be treated as an interlocutory application filed in the suit for specific performance itself.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">19. Admittedly, the defendant/judgment debtor was duly served with the summons in the suit for Specific Performance. He appeared through an Advocate, sought for time but did not file the written statement or participate in the proceedings. Therefore, the suit of the plaintiff/decree holder came to be decreed exparte and the operative portion of judgment of the Trial Court reads as under:—“The suit is decreed with costs.The defendant is directed to receive balance sale consideration of Rs. 2,85,000-00 from the plaintiff and to execute and register the sale deed in favour of the plaintiff at his costs in pursuance of the sale agreement dated 16.08.1997 with respect to suit property.Failure on the part of the defendant to execute the sale deed the plaintiff is at liberty to take steps to get the sale deed executed and registered through the Court Commissioner by depositing the balance sale consideration amount after the appeal time is over.”(Underlining by me)</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">20. What the plaintiff has to do if the defendant were to not obey the decree passed by the Court is therefore, clearly spelt out in the judgment of the Trial Court. The plaintiff was given the liberty to take steps to get the sale deed executed and registered through the Court by depositing the balance sale consideration after the time prescribed for filing the appeal expired. In other words, the plaintiff had to deposit the balance sale consideration only after expiry of the appeal period.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">21. The judgment and decree was delivered on 26.03.2003 and an appeal against the said decree ought to have been filed within 30 days, but the defendant admittedly has not chosen to file any appeal. After expiry of the appeal period, without depositing the balance consideration in Court, the plaintiff issued a legal notice calling upon the defendant to receive the balance sale consideration and execute the sale deed. The defendant did not reply. Then the execution proceedings came to be initiated. The balance consideration was not deposited either before or along with the execution petition.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">22. The Judgment debtor/defendant entered appearance, in the execution case. Then he filed I.A. 7 under Section 28(1) of the Act seeking rescission of the contract on the ground of non-deposit of the amount in terms of the decree. Thereafter, the balance sale consideration came to be deposited on 14.07.2011 by the decree holder. The plaintiff/decree holder was expected to file an application under Section 28(1) of the Act seeking extension of time to deposit the amount by showing sufficient cause for the lapse on his part. Till date no such application is filed by the plaintiff/decree holder.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">23. If the defendant was at fault, he was not willing to obey the decree, if the plaintiff had deposited the money after the expiry of the appeal period as stipulated in the decree or at least on the day he filed the execution petition, that would have been sufficient to demonstrate his bona fides. The balance sale consideration of Rs. 2,85,000/- had to be deposited on the date of the suit or the date of the decree or at least on the date of filing of the execution petition. But the plaintiff/decree holder appears to have woken up after seeing the averments in I.A. under Section 28 of the Act and made up his mind to deposit the money on 14.07.2011 which is nearly 8 years after the passing of the decree and 14 years from the date of the agreement.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">24. The subject matter of the suit is an immovable property situated in Tiptur Town. The value of the immovable properties situated in towns and cities is multiplying every year. The plaintiff/decree holder who had the benefit of the decree also had the benefit of having Rs. 2,85,000/- with him for 14 long years and did not even seek extension of time to deposit the said amount. Today if the Court were to direct the defendant/judgment debtor to execute the sale deed for a consideration which he should have received 14 years ago, it would cause great hardship and irreparable injury, as the said amount would be of no value at all. In that view of the matter, the contract of sale requires to be rescinded and consequently, the decree for specific performance also requires to be annulled.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">25. Where a contract is rescinded under sub-Section (1) of Section 28 of the Act, if the justice of the case so requires, the Court can as provided under Section 28 (2)(b) of the Act order for refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract. Similarly Section 65 of the Contract Act, 1872 also casts an obligation on the person who has received an advantage under void agreement or contract that becomes void, to restore it or make compensation for it, to the person from whom he received it. Therefore the defendant/judgment debtor shall refund the advantage/earnest money received from the plaintiff/decree holder under the agreement i.e., a sum for Rs. 1,75,000/- together with interest @ 18% p.a. from the date of receipt of amount till the date of payment, if he wants the rescission of the contract.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">26. In the result I pass the following:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">ORDERThe writ petition is allowed. The impugned order is hereby set-aside and I.A. filed under Section 28 of the Specific Relief Act is allowed.The agreement of sale dated 16.08.1997 is rescinded and the decree for specific performance dated 26.03.2003 is annulled subject to the condition that the defendant/judgment debtor shall refund earnest money of Rs. 1,75,000/- received under the agreement to the plaintiff/decree holder with interest @ 18% p.a. from the date of receipt of the said amount till the date of payment, within three months from this day.In the event of the defendant/judgment debtor failing to pay the amount to the plaintiff/decree holder or deposit the same in the Court within 3 months from the date of receipt of this order, the order of this Court rescinding the agreement stands vacated and order of the executing Court on I.A. 7 stands restored.———</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">1. (1994) 2 SCC 642 : AIR 1994 SC 16992. (1999) 4 SCC 702 : AIR 1999 SC 9183. (2007) 14 SCC 26 : AIR 2007 SC 1514</span></div></h4>', 'bc68711d537bfadd3b98e53515350f25.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-01', 1, '', '', '2020-12-07 03:02:28', '2021-01-20 23:26:33');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(131, '89gfIoXBRwkVoaz4JFaBRSS4p', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicle Act Insurance policy commences from the time of making payment and not from issuance of policy', '<h4>Motor Vehicle Act. Insurance policy commences from the time of making payment and not from issuance of policy. In the absence of contract fixing time, policy commences from 00.00 hours midnight (next day). Karnataka High Court.</h4><h4><br>Sudharshan vs Subash and another. Miscellaneous First Appeal 31894/2012 decided on 2 December 2020.</h4><h4><br><b>Judgment Link: </b></h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/350758/1/MFA31894-12-02-12-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/350758/1/MFA31894-12-02-12-2020.pdf</a></h4><h4><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant Paragraphs:</b><span style=\"font-size: 1.3125rem;\">&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">25. Therefore, as per Section 64VB of the Act above stated, the provision is very clear that soon after the receipt of the payment of premium by the owner and received by the Insurance Company then the contract of insurance begins between them. Issuance of policy is consequent effect after receipt of premium. If there is a specific contract is made between the insurer and the insured that the risk is to be covered from that point of time itself is concerned, then that shall be specifically stated in the Insurance Policy and it is a specific contract between the insurer and insured so far as time of commencement of risk. If there is no specific contract stating to cover the risk from that particular point of time then generally in the Insurance Policy it is stated that the Insurance Policy commences from 00.00 hours by&nbsp; mentioning&nbsp; the&nbsp; next&nbsp; day&nbsp; date&nbsp; commencing&nbsp; from 00.00 hours (mid night) on next date. Therefore, where there is no specific contract of mentioning time between insurer and insured regarding mentioning of time so as to cover the risk then generally the policy commences from 00.00 hours (mid night) by mentioning the date of the next day. In absence of mentioning specific time of commencement of covering risk, therefore upon considering this and applying the&nbsp; same in&nbsp; the&nbsp; present facts and circumstances and by following the legal provision enshrined under Section 64VB of the Act it can be safely held that from the time of making payment of premium itself covering risk starts.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Cases referred: Yellamma vs.&nbsp; Bhy Sukhadev Singh&nbsp; and another [2006 (3)&nbsp; KCCR 1842], Oriental Insurance Co.Ltd., v. Dharam Chand and others [2011 Kant, M.A.C.138 (SC)], National Insurance Co.Ltd., v. Smt.Bhadramma&nbsp; and&nbsp; others [ILR 2009 KAR 3332], Sunita Rati’s case&nbsp; [AIR&nbsp; 1998&nbsp; SC&nbsp; 257], New India Insurance Company v. Bhagwati Devi and others [(1998) 6 Supreme Court Cases 534], National Insurance Co. Ltd. v. Jikubkai Nathuji Dabhi, [(1997) 1 SCC 66], National Insurance Co.Ltd., v. Sobina Iakai and others [2007 (3) T.A.C.&nbsp; 19 (S.C)], New India Assurance Co.Ltd., v. Harshadbhai Amrutbhai Modhiya and another [(2006) 5 Supreme Court Cases&nbsp; 192], New India Assurance Co.Ltd., vs. C.M.Jaya and others [AIR 2002 SC 651]</span></div><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4>', '5f290f551aeeb6d1843421c5ac749c0a.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-02', 1, '', '', '2020-12-06 04:38:39', '2021-01-21 01:37:10'),
(132, 'VzbBse4PKDTviqTPTzoIM7DGk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Employee of a Gram Panchayat cannot be removed on acts of misconduct without enquiry. Karnataka High Court.', '<h4 style=\"text-align: justify; \"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1.3125rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">S.K. Shankarappa vs The Panchayath Development Officer and another.&nbsp;</span></h4><h4 style=\"text-align: justify; \"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1.3125rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Writ Petition 48068/2018 decided on 21 October 2020.</span></h4><h4 style=\"text-align: justify; \"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1.3125rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Justice M. Nagaprasanna.<br></span></h4><h4><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">8…“Whether a permanent employee of the Panchayat can be removed on acts of misconduct without holding a departmental enquiry?”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">12 &amp; 13. Sections 113 (3) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 noticed. The afore-extracted provision of law, no doubt empowers the Gram Panchayat to reduce in rank, remove or dismiss any employee appointed by it. But this cannot clothe the Gram Panchayat with the power to remove a permanent employee on grounds of misconduct, without holding an enquiry and giving reasonable opportunity to defend himself as the allegations made would remain allegations until it is substantiated by a process known to law failing which, it would amount to removal of an employee on the basis of suspicion.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">14. It is trite law that any amount of suspicion cannot take the place of proof and proof can be arrived at only if a procedure to arrive at is followed. Thus, conduct of a departmental enquiry in the wake of the allegations of misconduct is mandatory and cannot be obviated or circumvented in any manner.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">15. Though the employee of a Gram Panchayat is not a civil servant in its true sense and would not get the protection of Article 311(2) of the Constitution of India nonetheless, a Gram Panchayat being a State under Article 12 of the Constitution of India and is bound by the rigors of Article 14 of the Constitution of India.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">16. Therefore, even if a provision bestows power upon the employer to remove an employee for misconduct under any statute without holding an enquiry, natural justice and reasonable opportunity of defence will have to be read into such statutes failing which, the very exercise of such power and the manner of its exercise becomes blatantly arbitrary. More so, when an action under the statute is likely to result in loss of livelihood or cast a stigma on such employee. If the aforesaid interpretation is not given to such statutes, it would be giving absolute, unbridled and unguided power to the employer to dismiss an employee which would not stand the test of Article 14 of the Constitution of India.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">17. An instrumentality, agency or any other authority under Article 12 of the Constitution of India must act fairly, justly and reasonably as fair treatment is an essential inbuilt of principles of natural justice. It is apposite to quote the words of the Apex Court “reasonableness and non-arbitrariness pervades the entire constitutional spectrum and is a golden thread which runs through the whole fabric of the Constitution of India”. Therefore, any act of unreasonableness or unfair treatment will fall foul of the rigors of Article 14 of the Constitution of India.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Writ Petition allowed.</span></div></h4>', 'bc9c6403e47e349121c25b7d360a69bb.jpeg', '03d14f28e874f4d71e116c4c39d8ecc4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-21', 1, '', '', '2020-12-06 04:41:27', '2023-01-10 17:12:13'),
(2553, '0A1TaJ32cV7aTS49HeJNkIbGq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Manufacture of Ethanol using sugarcane juice, sugar or sugar syrup is a sugar factory as defined under Clause 2(c) of the Sugarcane (Control) Order, 1966. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Askins Biofuels Private Limited and others Vs The Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. 102856 of 2022 decided on 6 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. M/s. Askins Biofuels Private Limited, the 1st\r\npetitioner (hereinafter referred to as “Askins”) and M/s. Shri\r\nBhramanandasagar Jaggery Industries, the 2nd petitioner\r\n(hereinafter referred to as “Bhramanandasagar”) have jointly\r\npresented this writ petition challenging the order dated\r\n25.07.2022, passed by the Commissioner for Cane\r\nDevelopment and Director of Sugar, the 4th respondent\r\n(hereinafter referred to as “the Cane Commissioner”).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. By the said order, Askins has been directed to stop\r\nthe construction activities immediately and has also been\r\ndirected not to commence any kind of production activities for\r\nthe manufacture of Ethanol using Sugarcane Juice at its\r\npresent establishment.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>50. In the light of the arguments advanced by the\r\nrespective parties, the question that would arise for\r\nconsideration, is as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\"Whether the establishment of a factory to\r\nmanufacture Ethanol using sugarcane juice,\r\nsugar or sugar syrup can be prevented by the\r\nCane Commissioner on the premise that such\r\nan establishment is in fact a “factory or sugar\r\nfactory” as defined under Clause 2(c) of the\r\nSugarcane (Control) Order, 1966 and would\r\nthereby contravene the prohibition imposed\r\nunder Clause 6A of the Sugarcane (Control)\r\nOrder, 1966?\" <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>84. It is to be noticed here that right up to 2021, the\r\ndefinition included the manufacture of both sugar and ethanol\r\nin a premise for it to be considered as a ‘factory’ under the\r\nSugarcane (Control) Order. However, from 2021, the\r\nmanufacture of both sugar and ethanol was not necessary and\r\nthe manufacture of either sugar or ethanol was sufficient to\r\nmake it a Factory under the Sugarcane (Control) Order.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>85. It is, therefore, clear that the legislative intent to\r\nmake every plant, where only ethanol was manufactured,\r\nusing the sources mentioned in the definition, would also have\r\nto be construed as a Factory. In this sense, the Legislature by\r\ndefining the term in 2021 basically removed all doubts and\r\nmade it clear that even if only ethanol was manufactured, it\r\nwould still nevertheless be a Factory or a Sugar Factory for the\r\npurposes of the Sugarcane (Control) Order.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>86. Admittedly, Askins, the 1st petitioner intends to\r\nstart manufacturing ethanol only from sugarcane juice or\r\nsugar or sugar syrup or molasses and therefore, it would have\r\nto be considered as a Sugar Factory for the purposes of the\r\nSugarcane (Control) Order and admittedly Askins is situate in\r\nthe plot abutting Askins and thereby within the prohibited 15\r\nkm radius prescribed in Clause 6 A of the Sugarcane (Control)\r\nOrder </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>87. It is not in dispute that Alagawadi has filed an IEM\r\nand has taken effective steps and still has time to implement\r\nthe IEM. It will therefore have to be construed as a new sugar\r\nfactory and consequently, no other Sugar Factory or Factory\r\ncan be allowed to be set up within a radius of 15 kilometers.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">88. Since, it is held from the discussion narrated above\r\nthat Askins is indeed a Sugar Factory, for the purposes of the\r\nSugarcane (Control) Order, the order passed by the Cane\r\nCommissioner directing Askins to stop construction and\r\ndirecting Bhramanandasagar to stop the supply of sugarcane\r\njuice or sugar syrup, cannot be found fault with. The Cane\r\nCommissioner has basically ensured that the statutory\r\nrestriction imposed in Clause 6A of the Sugarcane (Control)\r\nOrder is adhered to and is not defeated by the setting up an\r\nEthanol Plant by Askins.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>90. As stated above, since Askins is clearly a Factory or\r\na Sugar Factory as defined under the Sugarcane (Control)\r\nOrder, the use of the term Stand-alone Distillery in the\r\nclarification would be of no relevance and Askins, by virtue of\r\nbeing a Sugar Factory, cannot set up an Ethanol\r\nManufacturing Plant within 15 kilometers of the Factory of\r\nAlagawadi.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>91. I am, therefore, of the view that there is no merit\r\nin this writ petition and the same will have to be dismissed.\r\nThe writ petition is accordingly dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '205c36c4dd46cbf97d05556bc9627229.JPG', '1ef8d2db3a487494c7aa1041219b466d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-11', 1, '', '', '2023-01-10 20:10:10', '2023-01-11 11:21:53'),
(133, 'FPKYRLCGc42B2dGIIGRK1dIcR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Marriage Act  Section 13 Cruelty - Meaning explained with case laws', '<h4><b>Hindu Marriage Act – Section 13- “Cruelty” meaning explained with case laws.</b></h4><h4><b>Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, at page 546 :</b><br><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.<br><br></span></div></h4><h4 style=\"text-align: justify;\"><b>Ramchander v. Ananta, (2015) 11 SCC 539: (2015) 4 SCC (Civ) 791, at page 542 :</b><br>The expression “cruelty” has not been defined in the Hindu Marriage Act. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes a reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Cruelty can be physical or mental. In the present case there is no allegation of physical cruelty alleged by the plaintiff. What is alleged is mental cruelty and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. It is settled law that the instances of cruelty are not to be taken in isolation but to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the plaintiff has been subjected to mental cruelty due to conduct of the other spouse.</h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem; text-align: left;\"><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></span><br></h4>', '9836286ea2270b35c3022cd0e4fa7d98.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-05', 1, '', '', '2020-12-06 04:44:41', '2021-01-21 01:33:03'),
(134, '3cBcefUgl6gWVrOixYXwyGC8m', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Orders of appointment and transfers are made by the State Government and the top Executives in utter disregard to reminders of the Courts to act in public interest', '<h4><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“Orders of appointment and transfers are made by the State Government and the top Executives in utter disregard to reminders of the Courts to act in public interest” – Karnataka High Court.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Siddaraju vs State of Karnataka and others. Writ Petition 11455/2020 decided on 1 December 2020.</span></div><br><b>Judgment Link: </b></h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/350672/1/WP11455-20-01-12-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/350672/1/WP11455-20-01-12-2020.pdf</a></h4><h4><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant paragraphs:</b><span style=\"font-size: 1.3125rem;\">&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The petitioner was appointed as Director of Karnataka Power Transmission Corporation Limited (KPTCL), on 6:12:2019. The petitioner is aggrieved by the order dated 7:10:2020 passed by the respondent-State Government, whereby respondent No.4 was appointed as Director of KPTCL and the petitioner was appointed as Managing Director of Power Company of Karnataka Limited. Subsequently, the State Government&nbsp; issued&nbsp; one more notification dated 16.10.2020 appointing the petitioner as Managing Director, Mysore Electrical Industries Limited.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Observations: Paragraph 12. Before parting with this writ petition, this Court deems it necessary to remind the State Government and the top Executives that appointments and transfers are required to be made in “public interest”. Public interest means the interest of the State and the citizens. If the same is followed in letter and spirit, the powers that be would not have to face inconvenient questions and such actions would considerably reduce unwanted litigations. It is sad that though this Court and the Hon’ble Apex Court&nbsp; have&nbsp; time and again reminded the powers that be of their constitutional obligation to act in accordance with law, both in letter and spirit, orders of appointment and transfers are made with utter disregard&nbsp; to&nbsp; the reminders and have become source of genuinely avoidable litigations. It would be apt to quote the prophetic words of Dr.B.R.Ambedkar, “However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good,&nbsp; it will prove to be good.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Writ petition stands dismissed. No order as to costs</span></div><br><b>Compiled by S. Basavaraj, Daksha Legal.</b></h4>', '3a5c1de862d075e9c7f188103b4163c5.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-01', 1, '', '', '2020-12-06 04:48:04', '2021-01-21 01:28:46'),
(135, 'RSEeXibq2gDUXokqkF9pMtYtT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Person who questions a Government order in Court and accepts another Government order without demure loses right to challenge the first order. Karnataka High Court.', '<h4><b>Siddaraju vs State of Karnataka and others. </b></h4><h4><b>Writ Petition 11455/2020 decided on 1 December 2020. </b></h4><h4><b>Justice R. Devdas. <br><br></b></h4><h4><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>The petitioner was appointed as Director of Karnataka Power Transmission Corporation Limited (KPTCL), on 6:12:2019. The petitioner is aggrieved by the order dated 7:10:2020 passed by the respondent-State Government, whereby respondent No.4 was appointed as Director of KPTCL and the petitioner was appointed as Managing Director of Power Company of Karnataka Limited. Subsequently, the State Government  issued  one more notification dated 16.10.2020 appointing the petitioner as Managing Director, Mysore Electrical Industries Limited which he accepted.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>8. &10 In the opinion of this Court, the subsequent development in the respondent State Government appointing the petitioner as Director of PCKL by order dated 07.10.2020 and thereafter one more notification dated 16.10.2020 issued by the State Government appointing the petitioner as Managing Director, MEI Ltd., consequent to which the petitioner taking charge  as Managing Director of MEI Ltd., on 16.10.2020, without demure, assumes significance. Normally, when transfer orders are challenged before a court of law or tribunal and during the pendency of such proceedings if another order of transfer is passed and the transferee assumes charge by virtue of the subsequent order of transfer, without protest and without raising  a  challenge to the subsequent orders, the pending proceedings are disposed of  as having become infructuous. The obvious reason behind the disposal of the proceedings as having become infructuous  is  that no useful purpose would be served in proceeding to consider the validity of the previous order of transfer, unless the subsequent order of transfer is also questioned by amending the memorandum of petition, raising grounds of challenge and seeking a specific prayer to set aside the subsequent order of transfer is made, a decision on the previous order of transfer would be rendered useless. It is not a matter of right that by quashing the previous order of transfer that all subsequent orders would axiomatically fall to the ground.…..Therefore, even if this Court were to quash the impugned order, it would not be sufficient to put the petition back in place as Director, KPTCL. The two orders are independent orders issued by the State Government invoking the doctrine of pleasure.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Observations: </b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>12. Before parting with this writ petition, this Court deems it necessary to remind the State Government and the top Executives that appointments and transfers are required to be made in “public interest”. Public interest means the interest of the State and the citizens. If the same is followed in letter and spirit, the powers that be would not have to face inconvenient questions and such actions would considerably reduce unwanted litigations. It is sad that though this Court and the Hon’ble Apex Court  have  time and again reminded the powers that be of their constitutional obligation to act in accordance with law, both in letter and spirit, orders of appointment and transfers are made with utter disregard  to  the reminders and have become source of genuinely avoidable litigations. It would be apt to quote the prophetic words of Dr.B.R.Ambedkar, “However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good,  it will prove to be good.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Writ petition stands dismissed. No order as to costs. </b></span></div></h4>', '6af248daab6a18ccb11ce1413fba9b38.JPG', 'f60ecf10fa035a01d00004d8c7dd04ad.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-23', 1, '', '', '2020-12-06 04:50:39', '2023-01-23 15:00:58');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(136, 'rWbDMMMIgbqNJsG4089aoBq6N', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'From Estoppel to Expectations - Supreme Court dissects doctrines of Promissory Estoppel and Legitimate Expectation.', '<h3>“From Estoppel to Expectations”. Supreme Court dissects doctrines of Promissory Estoppel and Legitimate Expectation.</h3><h3><br>The State of Jharkhand and Ors vs Brahmputra Metallics Ltd., Ranchi and Anr. Civil Appeal 3860-3862/2020 decided on 1 December 2020.</h3><h3><br>Judgment Link: </h3><h3><a href=\"https://main.sci.gov.in/supremecourt/2020/17227/17227_2020_33_1501_24877_Judgement_01-Dec-2020.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/17227/17227_2020_33_1501_24877_Judgement_01-Dec-2020.pdf</a></h3><h3><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\"><b>Relevant paragraphs:</b> H.3 Promissory estoppel – origins and evolution</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">27. In order to analyze the contentions relating to the doctrine of promissory estoppel in the present case, it is necessary to discuss the origin of the doctrine and the evolution of its application. The common law recognizes various kinds of equitable estoppel, one of which is promissory estoppel. In Crabb vs Arun DC, [1976] 1 Ch 179 (Court of Appeal), Lord Denning, speaking for the Court of Appeal, traced the genesis of promissory estoppel in equity, and observed: “The basis of this proprietary estoppel – as indeed of promissory estoppel – is the interposition of equity. Equity comes in, true to form, to mitigate the rigours of strict law. The early cases did not speak of it as “estoppel”. They spoke of it as “raising an equity” If I may expand that, Lord Cairns said: “It is the first principle upon which all Courts of Equity proceed”, that it will prevent a person from insisting on his legal rights – whether arising under a contract or on his title deed, or by statute – when it would be inequitable for him to do so having regard to the dealings which have taken place between the parties.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">28. The requirements of the doctrine of promissory estoppel have also been formulated in Chitty on Contracts14(“Chitty”):</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">“4.086. For the equitable doctrine to operate there must be a legal relationship giving rise to rights and duties between the parties; a promise or a representation by one party that he will not enforce against the other his strict legal rights arising out of that relationship; an intention on the part of the former party that the latter will rely on the representation; and such reliance by the latter party. Even if these requirements are satisfied, the operation of the doctrine may be excluded if it is, nevertheless, not “inequitable” for the first party to go back on his promise. The doctrine most commonly applies to promises not to enforce contractual rights, but it also extends to certain other relationships. 4.088…..The doctrine can also apply where the relationship giving rise to rights and correlative duties is non-contractual: e.g. to prevent the enforcement of a liability imposed by statute on a company director for signing a bill of exchange on which the company’s name is not correctly given; or to prevent a man from ejecting a woman, with whom he has been cohabitating, from the family home.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">Chitty (supra) clarifies that the doctrine of promissory estoppel may be enforced even in the absence of a legal relationship. However, it is argued that this would be an incorrect application of the doctrine since it gives rise to new rights between the parties, when the intent of the doctrine is to restrict the enforcement of previously existing rights:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">“4.089. It has, indeed, been suggested that the doctrine can apply where, before the making of the promise or representation, there is no legal relationship giving rise to rights and duties between the parties, or where there is only a putative contract between them: e.g. where the promisee is induced to believe that a contract into which he had undoubtedly entered was between him and the promisor, when in fact it was between the promisee and another person. But it is submitted that these suggestions mistake the nature of the doctrine, which is to restrict the enforcement by the promisor of previously existing rights against the promisee. Such rights can arise only out of a legal relationship existing between these parties before the making of the promise or representation. To apply doctrine where there was no such relationship would contravene the rule (to be discussed in para.4-099 below) that the doctrine creates no new rights.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">29. Generally speaking under English Law, judicial decisions have in the past postulated that the doctrine of promissory estoppel cannot be used as a ‘sword’, to give rise to a cause of action for the enforcement of a promise lacking any consideration. Its use in those decisions has been limited as a ‘shield’, where the promisor is estopped from claiming enforcement of its strict legal rights, when a representation by words or conduct has been made to suspend such rights. In Combe vs Combe15(“Combe”), the Court of Appeal held that consideration is an essential element of the cause of action: “It [promissory estoppel] may be part of a cause of action, but not a cause of action itself. The principle [promissory estoppel] never stands alone as giving a cause of action in itself, it can never do away with the necessity of consideration when that is an essential part of the cause of action. The doctrine of consideration is too firmly fixed to be overthrown by a side-wind.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">30. Even within English Law, the application of the rule laid down in Combe (supra) has been noticed to be inconsistent16. The scope of the rule has also been doubted on the ground that it has been widely framed17. Hence, in the absence of a definitive pronouncement by the House of Lords holding that promissory estoppel can be a cause of action, a difficulty was expressed in stating with certainty that English Law has evolved from the traditional approach of treating promissory estoppel as a ‘shield’ instead of a ‘sword’18. By contrast, the law in the United States19and Australia20is less restrictive in this regard.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">31. India, as we shall explore shortly, adopted a more expansive statement of the doctrine. Comparative law enables countries which apply a doctrine from across international frontiers to have the benefit of hindsight.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">This Court has given an expansive interpretation to the doctrine of promissory estoppel in order to remedy the injustice being done to a party who has relied on a promise. In Motilal Padampat (supra), this Court viewed promissory estoppel as a principle in equity, which was not hampered by the doctrine of consideration as was the case under English Law. This Court, speaking through Justice P N Bhagwati (as he was then), held thus: “12….having regard to the general opprobrium to which the doctrine of consideration has been subjected by eminent jurists, we need not be unduly anxious to project this doctrine against assault or erosion nor allow it to dwarf or stultify the full development of the equity of promissory estoppel or inhibit or curtail its operational efficacy as a justice device for preventing injustice…We do not see any valid reason why promissory estoppel should not be allowed to found a cause of action where, in order to satisfy the equity, it is necessary to do so.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">H.2 From estoppel to expectations</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">Under English Law, the doctrine of promissory estoppel has developed parallel to the doctrine of legitimate expectations. The doctrine of legitimate expectations is founded on the principles of fairness in government dealings. It comes into play if a public body leads an individual to believe that they will be a recipient of a substantive benefit. The doctrine of substantive legitimate expectation has been explained in R vs North and East Devon Health Authority, ex p Coughlan21in the following terms:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">“55…. But what was their legitimate expectation?” Where there is a dispute as to this, the dispute has to be determined by the court, as happened in In re Findlay. This can involve a detailed examination of the precise terms of the promise or representation made, the circumstances in which the promise was made and the nature of the statutory or other discretion.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">56….Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">33. Under English Law, the doctrine of legitimate expectation initially developed in the context of public law as an analogy to the doctrine of promissory estoppel found in private law. However, since then, English Law has distinguished between the doctrines of promissory estoppel and legitimate expectation as distinct remedies under private law and public law, respectively. De Smith’s Judicial Review22notes the contrast between the public law approach of the doctrine of legitimate expectation and the private law approach of the doctrine of promissory estoppel :</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">“[d]espite dicta to the contrary [Rootkin v Kent CC, (1981) 1 WLR 1186 (CA); R v Jockey Club Ex p RAM Racecourses Ltd, [1993] AC 380 (HL); R v IRC Ex p Camacq Corp, (1990) 1 WLR 191 (CA)], it is not normally necessary for a person to have changed his position or to have acted to his detriment in order to qualify as the holder of a legitimate expectation [R v Ministry for Agriculture, Fisheries and Foods Ex p Hamble Fisheries (Offshore) Ltd, (1995) 2 All ER 714 (QB)]. . . Private law analogies from the field of estoppel are, we have seen, of limited relevance where a public law principle requires public officials to honour their undertakings and respect legal certainty, irrespective of whether the loss has been incurred by the individual concerned [Simon Atrill, ‘The End of Estoppel in Public Law?’ (2003) 62 Cambridge Law Journal 3].”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">34. Another difference between the doctrines of promissory estoppel and legitimate expectation under English Law is that the latter can constitute a cause of action23. The scope of the doctrine of legitimate expectation is wider than promissory estoppel because it not only takes into consideration a promise made by a public body but also official practice, as well. Further, under the doctrine of promissory estoppel, there may be a requirement to show a detriment suffered by a party due to the reliance placed on the promise. Although typically it is sufficient to show that the promisee has altered its position by placing reliance on the promise, the fact that no prejudice has been caused to the promisee may be relevant to hold that it would not be “inequitable” for the promisor to go back on their promise.24However, no such requirement is present under the doctrine of legitimate expectation. In Regina (Bibi) vs Newham London Borough Council25, the Court of Appeal held:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">“55 The present case is one of reliance without concrete detriment. We use this phrase because there is moral detriment, which should not be dismissed lightly, in the prolonged disappointment which has ensued; and potential detriment in the deflection of the possibility, for a refugee family, of seeking at the start to settle somewhere in the United Kingdom where secure housing was less hard to come by. In our view these things matter in public law, even though they might not found an estoppel or actionable misrepresentation in private law, because they go to fairness and through fairness to possible abuse of power.&nbsp; To disregard the legitimate expectation because no concrete detriment can be shown would be to place the weakest in society at a particular disadvantage. It would mean that those who have a choice and the means to exercise it in reliance on some official practice or promise would gain a legal toehold inaccessible to those who, lacking any means of escape, are compelled simply to place their trust in what has been represented to them.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">35. Consequently, while the basis of the doctrine of promissory estoppel in private law is a promise made between two parties, the basis of the doctrine of legitimate expectation in public law is premised on the principles of fairness and non-arbitrariness surrounding the conduct of public authorities. This is not to suggest that the doctrine of promissory estoppel has no application in circumstances when a State entity has entered into a private contract with another private party. Rather, in English law, it is inapplicable in circumstances when the State has made representation to a private party, in furtherance of its public functions26.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">H.5&nbsp; Indian Law and the doctrine of legitimate expectations.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">36.Under Indian Law, there is often a conflation between the doctrines of promissory estoppel and legitimate expectation. This has been described in Jain and Jain’s well known treatise, Principles of Administrative Law27: “At times, the expressions ‘legitimate expectation’ and ‘promissory estoppel’ are used interchangeably, but that is&nbsp; not a correct usage because ‘legitimate expectation’ is a concept much broader in scope than ‘promissory estoppel’.A reading of the relevant Indian cases, however, exhibit some confusion of ideas. It seems that the judicial thinking has not as yet crystallised as regards the nature and scope of the doctrine. At times, it has been referred to as merely a procedural doctrine; at times, it has been treated interchangeably as promissory estoppel. However both these ideas are incorrect. As stated above, legitimate expectation is a substantive doctrine as well and has much broader scope than promissory estoppel.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">In Punjab Communications Ltd. v. Union of India, the Supreme Court has observed in relation to the doctrine of legitimate expectation:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">“the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way Reliance must have been placed on the said representation and the representee must have thereby suffered detriment.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">It is suggested that this formulation of the doctrine of legitimate expectation is not correct as it makes “legitimate expectation” practically synonymous with promissory estoppel. Legitimate expectation may arise from conduct of the authority; a promise is not always necessary for the purpose.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">37. While this doctrinal confusion has the unfortunate consequence of making the law unclear, citizens have been the victims. Representations by public authorities need to be held to scrupulous standards, since citizens continue to&nbsp; live their lives based on the trust they repose in the State. In the commercial world also, certainty and consistency are essential to planning the affairs of business. When public authorities fail to adhere to their representations without providing an adequate reason to the citizens for this failure, it violates the trust reposed by citizens in the State. The generation of a business friendly climate for investment and trade is conditioned by the faith which can be reposed in government to fulfil the expectations which it generates. Professors Jain and Deshpande characterize the consequences of this doctrinal confusion in the following terms:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">“Thus, in India, the characterization of legitimate expectations is on a weaker footing, than in jurisdictions like UK where the courts are now willing to recognize the capacity of public law to absorb the moral values underlying the notion of estoppel in the light of the evolution of doctrines like LE [Legitimate Expectations] and abuse of power. If the Supreme Court of India has shown its creativity in transforming the notion of promissory estoppel from the limitations of private law, then it does not stand to reason as to why it should also not articulate and evolve the doctrine of LE for judicial review of resilement of administrative authorities from policies and long- standing practices. If such a notion of LE is adopted, then not only would the Court be able to do away with the artificial hierarchy between promissory estoppel and legitimate expectation, but, it would also be able to hold the administrative authorities to account on the footing of public law outside the zone of promises on a stronger and principled anvil. Presently, in the absence of a like doctrine to that of promissory estoppel outside the promissory zone, the administrative law adjudication of resilement of policies stands on a shaky public law foundation.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">38. We shall therefore attempt to provide a cogent basis for the doctrine of legitimate expectation, which is not merely grounded on analogy with the doctrine of promissory estoppel. The need for this doctrine to have an independent existence was articulated by Justice Frankfurter of the United State Supreme Court in Vitarelli vs Seton28</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">‘“An executive agency must be rigorously held to the standards by which it professes its action to be judged. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish&nbsp; with the sword.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">39. However, before we do this, it is important to clarify the understanding of the doctrine of legitimate expectation in previous judgements of this Court. In National Buildings Construction Corporation vs S. Raghunathan29(“National Buildings Construction Corpn.”), a three Judge bench of this Court, speaking through Justice S. Saghir Ahmad, held that:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">“18. The doctrine of “legitimate expectation” has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without any iota of abuse of discretion. The policy statements cannot be disregarded unfairly or applied selectively. Unfairness in the form of unreasonableness is akin to violation of natural justice. It was in this context that the doctrine of “legitimate expectation” was evolved which has today become a source of substantive as well as procedural rights. But claims based on “legitimate expectation” have been held to require reliance on representations and resulting detriment to the claimant in the same way as claims based on promissory estoppel.”.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">However, it is important to note that this observation was made by this Court while discussing the ambit of the doctrine of legitimate expectation under English Law, as it stood then. As we have discussed earlier, there was a substantial conflation or overlap between the doctrines of legitimate expectation and promissory estoppel even under English Law since the former was often invoked as being analogous to the latter. However, since then and since the judgment of this Court in National Buildings Construction Corporation (supra), the English Law in relation to the doctrine of legitimate expectation has evolved. More specifically, it has actively tried to separate the two doctrines and to situate the doctrine of legitimate expectations on a broader footing. In Regina (Reprotech (Pebsham) Ltd) vs East Sussex County Council30, the House of Lords has held thus: held thus:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">“33&nbsp; &nbsp;In any case, I think that it is unhelpful to introduce private law concepts of estoppel into planning law. As Lord Scarman pointed out in Newbury District Council v Secretary of State for the Environment [1981] AC 578 , 616, estoppels bind individuals on the ground that it would be unconscionable for them to deny what they have represented or agreed. But these concepts of private law should not be extended into “the public law of planning control, which binds everyone”. (See also Dyson J in R v Leicester City Council, Ex p Powergen UK Ltd [2000] JPL 629 , 637.)</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">34.There is of course an analogy between a private law estoppel and the public law concept of a legitimate expectation created by a public authority, the denial of which may amount to an abuse of power… But it is no more than an analogy because remedies against public authorities also have to take into account the interests of the general public which the authority exists to promote. Public law can also&nbsp; take into account the hierarchy of individual rights which exist under the Human Rights Act 1998, so that, for example, the individual’s right to a home is accorded a high degree of protection (see Coughlan’s case, at pp 254–255) while ordinary property rights are in general far more limited by considerations of public interest: see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">35. It is true that in early cases such as the Wells case [1967] 1 WLR 1000 and Lever Finance Ltd v Westminster (City) London Borough Council [1971] 1 QB 222 , Lord Denning MR used the language of estoppel in relation to planning law. At that time the public law concepts of abuse of power and legitimate expectation were very undeveloped and no doubt the analogy of estoppel seemed useful…..It seems to me that in this area, public law has already absorbed whatever is useful from the moral values which underlie the private law concept of estoppel and&nbsp; the time has come for it to stand upon its own two feet.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">40. In a concurring opinion in Monnet Ispat and Energy Ltd. vs Union of India31 (“Monnet Ispat”), Justice H L Gokhale highlighted the different considerations that underlie the doctrines of promissory estoppel and legitimate expectation. The learned judge held that for the application of the doctrine of promissory estoppel, there&nbsp; has to be&nbsp; a&nbsp; promise, based&nbsp; on&nbsp; which&nbsp; the promisee has acted to its prejudice. In contrast, while applying the doctrine of legitimate expectation, the primary considerations are reasonableness and fairness of the State action. He observed thus</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">“Promissory Estoppel and Legitimate Expectations”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">289. As we have seen earlier, for invoking the principle of promissory estoppel there has to be a promise, and on that basis the party concerned must have acted to its prejudice. In the instant case it was only a proposal, and it was very much made clear that it was to be approved by the Central Government, prior whereto it could not be construed as containing a promise. Besides, equity cannot be used against a statutory provision or notification.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">290…..In any case, in the absence of any promise, the Appellants including Aadhunik cannot claim promissory estoppel in the teeth of the notifications issued under the relevant statutory powers. Alternatively, the Appellants are trying to make a case under the doctrine of legitimate expectations. The basis of this doctrine is in reasonableness and fairness. However, it can also not be invoked where the decision of the public authority is founded in a provision of law, and is in consonance with public interest.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">In Union of India vs Lt. Col. P.K. Choudhary32, speaking through Chief Justice T S Thakur, the Court discussed the decision in Monnet Ispat (supra) and noted its reliance on the judgment in Attorney General for New South Wales vs. Quinn33. It then observed:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">“This Court went on to hold that if denial of legitimate expectation in a given case amounts to denial of a right that is guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or in violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Article 14 of the Constitution but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">Thus, the Court held that the doctrine of legitimate expectation cannot be claimed as a right in itself, but can be used only when the denial of a legitimate expectation leads to the violation of Article 14 of the Constitution.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">42. As regards the relationship between Article 14 and the doctrine of legitimate expectation, a three judge Bench in Food Corporation of India vs Kamdhenu Cattle Feed Industries34, speaking through Justice J S Verma, held thus:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">“7. In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is ‘fairplay in action’. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated&nbsp; fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision- making process in all State actions. To satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant’s perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">More recently, in NOIDA Entrepreneurs Assn. vs NOIDA35, a two-judge bench of this Court, speaking through Justice B. S. Chauhan, elaborated on this relationship in the following terms:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">“39. State actions are required to be non-arbitrary and justified on the touchstone of Article 14 of the Constitution. Action of the State or its instrumentality must be in conformity with some principle which meets the test of reason and relevance. Functioning of a “democratic form of Government demands equality and absence of arbitrariness and discrimination”. The rule of law prohibits arbitrary action and commands the authority concerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">41. Power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact situation of a case. “Public authorities cannot play fast and loose with the powers vested in them.” A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. An authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred. In this context, “in good faith” means “for legitimate reasons”. It must be exercised bona fide for the purpose and for none other…]”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">As such, we can see that the doctrine of substantive legitimate expectation is one of the ways in which the guarantee of non-arbitrariness enshrined under Article 14 finds concrete expression.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">Compiled by S. Basavaraj, Advocate, Daksha Legal, Bengaluru.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">16Wyvern Development, Re, [1974] 1 W.L.R. 1097 cited in Susan M. Morgan, “A Comparative Analysis of the Doctrine of Promissory Estoppel in Australia, Great Britain and the United States”, (1985) 15 Melbourne University Law Review 134, 139-141.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">17 In Tungsten Electric Co Ltd. vs Tool Metal Manufacturing Co. Ltd., [1955] 1 W.L.R. 761, Lord Simonds states, “I do not wish to lend the authority of this House to the statement of the principle which is to be found in Combe v. Combe and may well be far too widely stated”.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">18 In Baird Textiles Holdings Ltd. vs Marks and Spencer Plc., [2002] 1 All ER (Comm) 737, Court of Appeal stated that “there is no real prospect of the claim [estoppel] succeeding unless and until law is developed, or corrected, by the House of Lords”.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">19 American Law Institute, Restatement of the Law (2d), Contracts (1981), para 90.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">23 Rebecca Williams, “The Multiple Doctrines of Legitimate Expectations”, (2016) 132(Oct) Law Quarterly Review 639, 645.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">24Supra note 19 at para 4-095.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">26 Nicholas Bamforth, “Legitimate Expectation and Estoppel” (1998) 3 Jud Rev 196.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">27 M.P. Jain and S.N. Jain, Principles of Administrative Law (7th edn., EBC 2013).</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">28 359 US 535 (1959); the principle espoused in this judgment has been followed by this Court in Amarjit Singh Ahluwalia (Dr) vs State of Punjab, (1975) 3 SCC 503, Sukhdev Singh vs Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421 (concurring opinion of Justice K K Mathew) and Ramana Dayaram Shetty vs International Airport Authority of India, (1979) 3 SCC 489.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">29 (1998) 7 SCC 66.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">30 [2003] 1 WLR 348.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">32 (2016) 4 SCC 236.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\">35. (2011) 6 SCC 508.</span></div></h3>', '4ab0f04a6204d290a66aabef702b5e1c.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-01', 1, '', '', '2020-12-06 04:52:49', '2021-01-21 01:21:34');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(145, 'NjBHef4Mi94NugUK6p2zWbMYg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Code of Criminal Procedure. Section 438. Grant of transit bail. Principles discussed. Karnataka High Court.', '<h4 style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; margin-right: 0px; margin-bottom: 24px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><font color=\"#3c434a\" face=\"Noto Serif, Georgia, Times New Roman, Times, serif\"><span style=\"font-size: 17px;\"><b>Code of Criminal Procedure. Section 438. Grant of transit bail. Principles discussed. Karnataka High Court.</b></span></font></h4><h4 style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; margin-right: 0px; margin-bottom: 24px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><font color=\"#3c434a\" face=\"Noto Serif, Georgia, Times New Roman, Times, serif\"><span style=\"font-size: 17px;\"><b>Priya Mukharjee vs State of Karnataka and others. Criminal Petition 6956/2020 decided on 25 November 2020.</b></span></font></h4><h4 style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; margin-right: 0px; margin-bottom: 24px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><b style=\"font-size: 17px; color: rgb(60, 67, 74); font-family: \"Noto Serif\", Georgia, \"Times New Roman\", Times, serif;\">Judgment Link:</b><br></h4><h4 style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; margin-right: 0px; margin-bottom: 24px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349929/1/CRLP6956-20-25-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349929/1/CRLP6956-20-25-11-2020.pdf</a><font color=\"#3c434a\" face=\"Noto Serif, Georgia, Times New Roman, Times, serif\"><span style=\"font-size: 17px;\"><b></b></span></font></h4><h4 style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; margin-right: 0px; margin-bottom: 24px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><font color=\"#3c434a\" face=\"Noto Serif, Georgia, Times New Roman, Times, serif\"><span style=\"font-size: 17px;\"><b><br></b></span></font></h4><h4 style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; margin-right: 0px; margin-bottom: 24px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/11/image-9.png?w=661\"><font color=\"#3c434a\" face=\"Noto Serif, Georgia, Times New Roman, Times, serif\"><span style=\"font-size: 17px;\"><b><br></b></span></font></h4><h4 style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: \"Noto Serif\", Georgia, \"Times New Roman\", Times, serif; font-size: 17px; margin-right: 0px; margin-bottom: 24px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial; color: rgb(60, 67, 74);\"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/11/image-10.png?w=661\"></h4><p style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: \"Noto Serif\", Georgia, \"Times New Roman\", Times, serif; font-size: 17px; margin-right: 0px; margin-bottom: 24px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial; color: rgb(60, 67, 74);\"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/11/image-11.png?w=606\"></p><p style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: \"Noto Serif\", Georgia, \"Times New Roman\", Times, serif; font-size: 17px; margin-right: 0px; margin-bottom: 24px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial; color: rgb(60, 67, 74);\"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/11/image-12.png?w=662\"></p><p style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: \"Noto Serif\", Georgia, \"Times New Roman\", Times, serif; font-size: 17px; margin-right: 0px; margin-bottom: 24px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial; color: rgb(60, 67, 74);\"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/11/image-13.png?w=629\"></p><p style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: \"Noto Serif\", Georgia, \"Times New Roman\", Times, serif; font-size: 17px; margin-right: 0px; margin-bottom: 24px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial; color: rgb(60, 67, 74);\"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/11/image-14.png?w=629\"></p><p style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: \"Noto Serif\", Georgia, \"Times New Roman\", Times, serif; font-size: 17px; margin-right: 0px; margin-bottom: 24px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial; color: rgb(60, 67, 74);\"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/11/image-14.png?w=629\"><img src=\"data:image/png;base64, ', 'be4936def0f8b7c72df839e255da6a08.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-25', 1, '', '', '2020-12-06 05:58:52', '2020-12-20 03:10:48');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(146, 'YUcT61ZlBQBDBXmRLhqgm8kGR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Penal Code. Sections 107 and 306. Abetment to commit suicide. Ingredients ', '<h4>Indian Penal Code. Sections 107 &amp; 306. The sections are attracted only when the accused, by his acts and by his continuous course of conduct, creates a situation which leads the deceased perceiving no other option except to commit suicide. Supreme Court.</h4><h4>Ude Singh and others vs State of Haryana. Criminal Appeal 233/2020 decided on 25 July 2019</h4><h4><br><b>Judgment Link: </b></h4><h4><a href=\"https://main.sci.gov.in/supremecourt/2008/17549/17549_2008_9_1501_15279_Judgement_25-Jul-2019.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2008/17549/17549_2008_9_1501_15279_Judgement_25-Jul-2019.pdf</a></h4><h4><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant paragraphs:&nbsp;</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">15. Thus, “abetment” involves a mental process of instigating a person in doing something. A person abets the doing of a thing when: (i) he instigates any person to do that thing; or (ii) he engages with one or more persons in any conspiracy for the doing of that thing; or (iii) he intentionally aids, by acts or illegal omission, the doing of that thing. These are essential to complete the abetment as a crime. The word “instigate” literally means to provoke, incite, urge on or bring about by persuasion to do anything.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">16. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behaviour and responses/reactions. In the case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the act/s of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">16.1 For the purpose of finding out if a person has abetted commission of suicide by another, the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions above-referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four-corners of Section 306 IPC. If the accused plays an active role in tarnishing the self-esteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased.</span></div><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4>', '0782e4f02b15590dd7b0337b0aa46f09.png', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2019-07-25', 1, '', '', '2020-12-06 06:02:21', '2021-01-20 23:51:32'),
(147, 'KJoiJU5AUKqDZsG3a3qNFiWWs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arnab Manoranjan Goswami vs The State of Maharashtra and others  ', '<h4>“Human Liberty and the Role of Courts. The writ of liberty runs through the fabric of the Constitution. There is a a pressing need for courts across the judicial hierarchy in India to remedy the institutional problem of bail applications not being heard and disposed of with expedition” -Supreme Court</h4><h4><br>Arnab Manoranjan Goswami vs The State of Maharashtra &amp; Ors. Criminal Appeal 742/2020 decided on 27 November 2020.</h4><h4><br><b>Judgment Link: </b></h4><h4><a href=\"https://main.sci.gov.in/supremecourt/2020/24646/24646_2020_33_1501_24858_Judgement_27-Nov-2020.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/24646/24646_2020_33_1501_24858_Judgement_27-Nov-2020.pdf</a></h4><h4><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant paragraphs:&nbsp;</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">JHuman liberty and the role of Courts. Para 60. Human liberty is a precious constitutional value, which is undoubtedly subject to regulation by validly enacted legislation. As such, the citizen is subject to the edicts of criminal law and procedure. Section 482 recognizes the inherent power of the High Court to make such orders as are necessary to give effect to the&nbsp; provisions&nbsp; of&nbsp; the&nbsp; CrPC&nbsp; ?or&nbsp; prevent&nbsp; abuse&nbsp; of&nbsp; the&nbsp; process&nbsp; of&nbsp; any&nbsp; Court&nbsp; or otherwise to secure the ends of justice. Decisions of this court require the High Courts, in exercising the jurisdiction entrusted to them under Section 482, to act with circumspection. In emphasising that the High Court must exercise this power with a sense of restraint, the decisions of this Court are founded on the basic principle that the due enforcement of criminal law should not be obstructed by the accused taking recourse to artifices and strategies. The public interest in&nbsp; ensuring the due investigation of crime is protected by ensuring that the inherent power of the High Court is exercised with caution. That indeed is one – and a significant – end of the spectrum.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The other end of the spectrum is equally important: the recognition by Section 482 of the power inhering in the High Court to prevent the abuse of process or to secure the ends of justice is a valuable safeguard for protecting liberty. The Code of Criminal Procedure of 1898 was enacted by a legislature which was not subject to constitutional rights and limitations; yet it recognized the inherent power in Section 561A. Post- Independence, the recognition by Parliament of the inherent power of the High Court must be construed as an aid to preserve the constitutional value of liberty. The writ of liberty runs through the fabric of the Constitution. The need to ensure the fair investigation of crime is undoubtedly important in itself, because it protects at one level the rights of the victim and, at a more fundamental level, the societal interest in ensuring that crime is investigated and dealt with in accordance with law. On the other hand, the misuse of the criminal law is a matter of which the High Court and the lower Courts in this country must be alive. … Courts should be alive to both ends of the spectrum – the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a&nbsp; ruse for targeted harassment. Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">63. More than four decades ago, in a celebrated judgment in State of Rajasthan, Jaipur vs Balchand(1977) 4 SCC 308 , Justice Krishna Iyer pithily reminded us that the basic rule of our criminal justice system is bail, not jail. The High Courts and Courts in the district judiciary of India must enforce this principle in practice, and not forego that duty, leaving this Court to intervene at all times. We must in particular also emphasise the role of the district judiciary, which provides the first point of interface to the citizen. Our district judiciary is wrongly referred to as the subordinate judiciary‘. It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them. High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground – in the jails and police stations where human dignity has no protector. As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system‘s primordial&nbsp; interest&nbsp; in&nbsp; preserving&nbsp; the&nbsp; presumption&nbsp; of&nbsp; innocence&nbsp; finds&nbsp; its most eloquent&nbsp; expression.&nbsp; The&nbsp; remedy&nbsp; of&nbsp; bail&nbsp; is&nbsp; the&nbsp; ?solemn&nbsp; expression&nbsp; of&nbsp; the humaneness&nbsp; of&nbsp; the&nbsp; justice&nbsp; system.&nbsp; Tasked&nbsp; as&nbsp; we&nbsp; are&nbsp; with&nbsp; the&nbsp; primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">65. The data on the National Judicial Data Grid (NJDG) is available in the public realm. The NJDG is a valuable&nbsp; resource&nbsp; for all&nbsp; High&nbsp; Courts&nbsp; to monitor&nbsp; the pendency and&nbsp; disposal of cases, including criminal cases. For Chief Justices of the High Courts, the information which is available is capable of being utilized as a valuable instrument to promote access to justice, particularly in matters concerning liberty. The Chief Justices of every High Court should in their administrative capacities utilize the ICT tools which are placed at their disposal in ensuring that access to justice is democratized and equitably allocated. Liberty is not a gift for the few. Administrative judges in charge of districts must also use the facility to engage with the District judiciary and monitor pendency. As the data on the NJDG makes clear, there is a pressing need for courts across the judicial hierarchy in India to remedy the institutional problem of bail applications not being heard and disposed of with expedition.</span></div><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4>', '559dab2e7840b64edb61f13ca047679d.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-27', 1, '', '', '2020-12-06 06:06:19', '2021-01-20 23:44:07'),
(148, 'wk6kjps5eJMTNi2J0MrKCfTeF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Penal Code. Sections 107 and  306. Abetment to commit suicide Ingredients.', '<h4>Indian Penal Code. Sections 107 &amp; 306. Ingredients. “The accused must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide”. Law on the point discussed. Supreme Court.</h4><h4>Arnab Manoranjan Goswami vs The State of Maharashtra &amp; Ors. Criminal Appeal 742/2020 decided on 27 November 2020.</h4><h4><br><b>Judgment Link: </b></h4><h4>https://main.sci.gov.in/supremecourt/2020/24646/24646_2020_33_1501_24858_Judgement_27-Nov-2020.pdf</h4><h4><br><b>Relevant paragraphs:</b> <br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">47 .The first segment of Section 107 defines abetment as the instigation of a person to do a particular thing. The second segment defines it with reference to engaging in a conspiracy with one or more other persons for the doing of a thing, and an act or illegal omission in pursuance of the conspiracy. Under the third segment, abetment is founded on intentionally aiding the doing of a thing either by an act or omission. These provisions have been construed specifically in the context of Section 306.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">These provisions have been construed in the earlier judgements of this Court in State of West Bengal vs Orilal Jaiswal (1994) 1 SCC 73, Randhir Singh vs State of Punjab (2004) 13 SCC 129, Kishori Lal vs State of MP(2007) 10 SCC 797, Kishangiri Mangalgiri Goswami vs State of Gujarat (2009) 4 SCC 52 and Amalendu Pal vs State of West Bengal (2010) 1 SCC 707. The Court noted that before a person may be said to have abetted the commission of suicide, they ?must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Instigation, as this Court held in Kishori Lal (supra), ?literally means to provoke, incite, urge on or bring about by persuasion to do anything.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">In S S Chheena vs Vijay Kumar Mahajan23 two judge bench of this court observed. – ?“25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigateor aid in committing suicide, conviction cannot be sustained.The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased&nbsp;</span><span style=\"font-size: 1.3125rem;\">into such a position that he committed suicide.“</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Note: Please read paragraphs 47 to 54 of this judgment on this point .</span></div><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4>', '4d3377f9660927f5b565228044903097.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-27', 1, '', '', '2020-12-06 06:09:11', '2021-01-20 23:48:59'),
(149, '0BGHKprhqdzs2PPy7Q0t6Adea', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Caste Verification Committee has no suo motu power to cancel caste certificate unless caste verification is sought for.', '<h4>Caste Verification Committee* has no suo motu power to cancel caste certificate unless caste verification is sought for. Karnataka High Court.</h4><h4><br>The Appointing Authority and another vs Bheemappa and another Writ Appeal 100110/2020 decided on 10 November 2020.</h4><h4><br><b>Judgment Link: </b></h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349067/1/WA100110-20-10-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349067/1/WA100110-20-10-11-2020.pdf</a></h4><h4><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant paragraphs:&nbsp;</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">3…. Admittedly, the appellant-Bank has not sought for verification of the caste certificate furnished to the employer in the year 1985. That being the admitted facts, the moot question is whether the Caste Verification Committee could have suo motu initiated proceedings to cancel the caste certificate of respondent no.1 or to opine that respondent no.1 has furnished a false certificate.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">4. On perusal of the *Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of Appointments, etc.) Act, 1990 (hereinafter referred to as ‘the Act’ for short) and the *Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of Appointments, etc.) Rules, 1992, we find that no such powers of suo motu revision are vested in the Caste Verification Committee and sub-section (2) of Section 4-C of the Act stipulates the persons or entity who may seek for verification of the Caste certificate.</span></div></h4><h4><div style=\"text-align: justify;\"><br></div><span style=\"font-size: 1.3125rem;\"><b>Compiled by S. Basavaraj &amp; Sumana Chamarty, Daksha Legal.</b></span><br></h4>', '171311442ad14f678fef03d87bf94102.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-01', 1, '', '', '2020-12-06 06:11:41', '2021-01-20 23:40:38'),
(150, 'llvcAymD0xNVyI6Oxp3waOflW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Debt or other liability under N. I. Act includes dues from any other person and not confined to debt or liability of the drawer himself. ', '<h4><b>Negotiable Instruments Act. Sections 138 &amp; 139. “Debt or other liability” includes dues from any other person and not confined to debt or liability of the drawer himself. It even covers any other person’s debt or liability. Law on the point discussed. Karnataka High Court.</b></h4><h4><b><br>M/s. Bethal Products (India) vs Jayakumar and another. Criminal Appeal 1060/2010 decided on 19 November 2020.</b></h4><h4><b><br></b></h4><h4><b><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">18.&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1.3125rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">(Facts) The other contention of the accused is that the subject matter of the said cheque is not issued for legally recoverable debt. reason that they have not disputed the issuance of cheque and also no dispute with regard to the fact that there was no transaction between the complainant and the accused Company. However, it is the specific case of the complainant that in order to discharge the liability of M/s.IGSL in which accused Nos.1 and 2 are the Directors, have issued the cheque.</span></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>21. Decision of the Madras High Court in Madras High Court in the case of P.R.Shankar Rao vs. Joseph and Joseph Regis Kalingarayar, reported in 2001 Crl.L.J.2392 perused….”the debt or other liability includes the due from any other person. It is not necessary that the debt or liability should be due from the drawer himself. It can be issued for the discharge of any other man’s debt or liability. Legally enforceable debt or liability would have a reference to the nature of the debt or liability and not the person against whom the debt or liability can be enforced.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>23 &amp; 24. The judgment in ICDS Ltd. vs. Beena Shabeer and another reported in (2002)6 SCC 426 perused. ….The language of the statute depicts the intent of the law- makers to the effect that wherever there is a default on the part of one in favour of another and in the event a cheque is issued in discharge of any debt or other liability, there cannot be any restriction or embargo in the matter of application of the provisions of Section 138 of the Act. It is further observed that “any cheque” and “other liability” are the two key expressions which stand as clarifying the legislative intent so as to bring factual context within the ambit of the provisions of the statute.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>25. Having considered the principles laid down in the judgment, the factual aspects of the case and legal effect, it is clear that the Court has to see the wisdom of the legislature in bringing the enactment and while interpreting the law, the Court has to take note of the object and statement in bringing the enactment and the courts are meant to interpret the law with the object of special enactment.&nbsp;</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>APPEAL ALLOWED.</b></span></div></h4>', '5f5b828ead0ea24d40f5894189d5bb46.jpeg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-19', 1, '', '', '2020-12-06 06:14:12', '2022-08-06 14:01:41'),
(151, 'C38uYSrvhZprCHCH9PeNfKIW3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contract Act. Earnest money security can not be forfeited in the absence of a forfeiture clause in the agreement', '<h4><b>Contract Act, 1872. Forfeiture of earnest money/security money. In the absence of a forfeiture clause in the agreement, parties to contract can not forfeit the sum. Supreme Court.</b></h4><h4><b>Suresh Kumar Wadhwa v. State of M.P., (2017) 16 SCC 757 . Civil Appeal 7665/2009 decided on 25 October 2017.</b></h4><h4><b><br>Judgment Link:<br></b><a href=\"https://main.sci.gov.in/supremecourt/2007/5473/5473_2007_Judgement_25-Oct-2017.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">https://main.sci.gov.in/supremecourt/2007/5473/5473_2007_Judgement_25-Oct-2017.pdf</a></h4><h4><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\"><br>Relevant paragraphs:</b><span style=\"font-size: 1.3125rem;\">&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">20 &amp;21. Three questions, basically, arise in this appeal. (1) Whether the appellant-plaintiff committed any breach of the terms and conditions of the public auction. (2) Whether the State was justified in forfeiting the security money deposited by the appellant for the alleged breach said to have been committed by the appellant. (3) Whether the State had power to forfeit the security money in the facts of this case?. These questions need to be answered keeping in view the provisions of Section 74 of the Contract Act, 1872 and some settled legal principles relating to law of contract.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">23. Reading of Section 74 would go to show that in order to forfeit the sum deposited by the contracting party as “earnest money” or “security” for the due performance of the contract, it is necessary that the contract must contain a stipulation of forfeiture. In other words, a right to forfeit being a contractual right and penal in nature, the parties to a contract must agree to stipulate a term in the contract in that behalf. A fortiori, if there is no stipulation in the contract of forfeiture, there is no such right available to the party to forfeit the sum.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">24. The learned author Sir Kim Lewison in his book The Interpretation of Contracts (6th Edn.) while dealing with subject “Penalties, Termination and Forfeiture Clauses in the Contract” explained the meaning of the expression “forfeiture” in these words: “A forfeiture clause is a clause which brings an interest to a premature end by reason of a breach of covenant or condition, and the court will penetrate the disguise of a forfeiture clause dressed up to look like something else. A forfeiture clause is not to be construed strictly, but is to receive a fair construction.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">25. The author then quoted the apt observations of Lord Tenterden from an old case reported in Doe d Davis v. Elsam wherein the learned Lord while dealing with the case of forfeiture held as under: (ER p. 1127) “… I do not think provisos of this sort are to be construed with the strictness of conditions at common law. These are matters of contract between the parties, and should, in my opinion, be construed as other contracts.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">26. Equally well-settled principle of law relating to contract is that a party to the contract can insist for performance of only those terms/conditions, which are part of the contract. Likewise, a party to the contract has no right to unilaterally “alter” the terms and conditions of the contract and nor they have a right to “add” any additional terms/conditions in the contract unless both the parties agree to add/alter any such terms/conditions in the contract.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">27. Similarly, it is also a settled law that if any party adds any additional terms/conditions in the contract without the consent of the other contracting party then such addition is not binding on the other party. Similarly, a party, which adds any such term/condition, has no right to insist on the other party to comply with such additional terms/conditions and nor such party has a right to cancel the contract on the ground that the other party has failed to comply with such additional terms/conditions.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(On facts) 29. In our opinion, a stipulation for deposit of security amount ought to have been qualified by a specific stipulation providing therein a right of forfeiture to the State. Similarly, it should have also provided the contingencies in which such right of forfeiture could be exercised by the State against the bidder. It is only then the State would have got a right to forfeit. It was, however, not so in this case.</span></div></h4><h4><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem; text-align: left;\">Compiled by S.Basavaraj, Advocate, Daksha Legal</b><br></div></h4>', 'bc6156c5ef7f392107cb4bfdf17cfe89.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-04', 1, '', '', '2020-12-06 06:18:24', '2021-01-20 23:35:36'),
(152, 'GGaNBZIymHBlGw8bmXOmV9H3W', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Preventive detention. Order of detention can be passed even if detenue is in custody.', '<h4><b>Preventive detention. Order of detention can be passed even if detenue is in custody. Law on the point discussed. Karnataka High Court.</b></h4><h4><b>Gayatri vs The Police Commissioner and others. Writ Petition Habeus Corpus 53/2020 decided on 18 November 2020.</b></h4><h4><br><b>Judgment Link: </b></h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349000/1/WPHC53-20-18-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349000/1/WPHC53-20-18-11-2020.pdf</a></h4><h4><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Relevant paragraphs:&nbsp;</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">2. Learned counsel for the petitioner submitted that grounds referred to in the order of detention are factually incorrect and the order of detention was passed when the detenue was already in judicial custody. Since the detenue was in judicial custody, therefore, the order of detention could not have been passed.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">5. The Act* was enacted with an object to ensure that the maintenance of public order in the State is not adversely affected by the activities of known anti-social elements. The legislature also took note of the fact while enacting the Act that the activities of antisocial elements like bootleggers, drug offenders, gamblers, immoral traffic offenders and slum grabbers and also video and audio pirates, have caused a feeling of insecurity among the public and even tempo of life especially in urban areas has frequently been disrupted because of such persons.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">6. It is well settled in law that preventive detention is not punitive but is a precautionary measure and its object is not to punish a person but to prevent him from doing any illegal activity which may be prejudicial to maintenance of public order. The power of preventive detention is invoked as an anticipatory measure and the same does not relate to an offence in respect of which criminal proceeding is pending to punish a person.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">7. The Supreme Court in Union of India &amp; another vs Dimple Happy Dhakad 2019 SCC Online 875 has held that even if a detenue is in custody, an order of detention can be passed provided the detaining authority is satisfied that if the detenue is released from the custody, he is likely to indulge in activities which are prejudicial to maintenance of public order….Therefore, the contention of the detenue that since he is in custody therefore, order of detention could not have been passed, does not deserve acceptance. PETITION DISMISSED.</span></div></h4><h4><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4>', 'da0aa20752d2aa0c14b6dffffd25226b.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-18', 1, '', '', '2020-12-06 06:22:59', '2021-01-20 23:28:33'),
(154, 'o4rGM1r07o0IxmITLzdNzYTUG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Partition suit. New property cannot be added at preliminary decree stage', '<h4>Partition suit. New property cannot be added at preliminary decree stage. However, if sufficient cause is shown, a second suit for partition is maintainable regarding that property. Karnataka High Court.</h4><h4><br>Channaveerappa Gowda vs Renukappa Gowda and others. Writ Petition 34142/2012 decided on 1 April 2014.</h4><h4><br>Judgment Link: </h4><h4>http://judgmenthck.kar.nic.in/judgments/bitstream/123456789/942536/1/WP34142-12-01-04-2014.pdf</h4><h4><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant paragraphs:</b><span style=\"font-size: 1.3125rem;\">&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">7. In a partition suit, first a preliminary decree is passed declaring the rights of the parties in the schedule property. During the course of final decree proceedings, the court has jurisdiction to alter shares if it is occasioned by the death of one of the sharers. Notwithstanding the declaration of rights in the preliminary decree, there may be more than one preliminary decree. If there is no dispute regarding some of the joint family properties, or the claim for partition is admitted by the defendants in respect of some of the suit schedule properties, then the Court can proceed under Order XII Rule 6 of CPC and pass preliminary decree in respect of such items at once. Thereafter, after contest yet another preliminary decree in respect of the other items of property. Similarly, there can be more than one Final Decree also.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">13. However, this principle cannot be extended to include a property which was not the subject matter of the suit, at the time of passing of the preliminary decree. Variation of shares already declared in the property which is the subject matter of the suit is totally different from varying the subject matter of the suit. The reason being that what is the share to which a party to a suit is entitled to in law is purely a question of law, whereas a share in a property is dependent on the nature of the property which is purely a question of fact, which is to be decided on the facts and circumstances of the case based on the evidence adduced. Therefore, once a preliminary decree is passed in respect of the subject matter of the suit, question of including or adding a property to the subject matter of the suit subsequently and claiming a share in respect of the property so included or added is not permissible in law. In respect of the said property a separate suit is maintainable, if sufficient cause is shown for its exclusion in the earlier suit for partition.</span></div><div style=\"text-align: justify;\"><b><br></b></div><br></h4>', 'ad629d4070366d286e5f98c4a9f885ee.jpg', '8561604b547f472a2f809b590e60cef9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-08-06', 1, '', '', '2020-12-07 03:11:01', '2022-02-13 18:51:26'),
(155, 'natSxzJ7W8zO9pW6GdP85I0P3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Whether plaint can be amended at the instance of defendant in a partition suit to include property. Karnataka and Madras High Courts take different views.', '<h4>Whether plaint can be amended at the instance of defendant in a partition suit to include property. Karnataka and Madras High Courts take different views.</h4><h4><br>Karnataka High Court. Channaveerappa Gowda vs Renukappa Gowda and others. Writ Petition 34142/2012 decided on 1 April 2014.</h4><h4><br><b>Judgment Link: </b></h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgments/bitstream/123456789/942536/1/WP34142-12-01-04-2014.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgments/bitstream/123456789/942536/1/WP34142-12-01-04-2014.pdf</a></h4><h4><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Held:</b><span style=\"font-size: 1.3125rem;\"> Paragraph 14. Coming to the case on hand, Order VI Rule 17 CPC provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings as may be necessary for determining the real question in controversy between the parties. The plaint, therefore, can be amended only at the instance of the plaintiff and the 1st defendant cannot seek to include a property in the plaint schedule.</span></div></h4><h4><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Madras High Court Solavaiammal v. Ezhumalai Goundar, 2011 SCC OnLine Mad 2161 : (2011) 5 LW 859 : (2012) 1 CTC 159 : (2012) 2 ICC 294 : 2012 AIR CC 778,</span><br></div></h4><h4><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">15. Keeping the above principles in mind, the question raised in this civil revision petition is to be considered. Though a plain reading of Order VI, Rule 17 of the Code of Civil Procedure would appear that only a party to the plaint or written statement, as the case may be, could seek for amendment on the ground that such a party would be the dominant litus, it will be only a general rule in respect of all suits barring a suit for partition. In terms of Order VI, Rule 17, only the respective party to the pleadings could seek for amendment, as they are referred to as the plaintiff or defendant, as the case may be. In a partition suit, both the plaintiff and defendant are considered to be on the same pedestal to seek for a decree. This distinction is made by Courts. The application of Order VI, Rule 17 insofar as partition suits shall be considered keeping the above in mind.</span><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">17. In a suit for partition, in the event the plaintiff has included only certain properties as if they are available for partition and leave some other properties which are also available for partition, the request of the defendant in such event to include the left out properties also in the plaint schedule would not in any way amount to altering or changing the nature or character of the suit, as such an amendment is also necessary for an effective adjudication of the case and to avoid multiplicity of proceedings.</span></div></h4><h4><span style=\"font-size: 1.3125rem;\"><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></span><br></h4>', '480c3ad8b8cafe4f8fa210067bc4a0b4.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-08', 1, '', '', '2020-12-07 03:18:50', '2021-01-20 23:19:58'),
(156, 'WlVgf4AbSigBcsz2IWXFCiF8C', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Non combat post. Extreme fitness of a soldier cannot be demanded', '<h4>Indo-Tibetan Border Police Force. Notification for the non-combat post of Deputy Judge/Attorney General (Deputy Commandant) fixing minimum weight. Rejection on the ground of overweight is arbitrary. Extreme fitness of a soldier cannot be demanded for the post. Karnataka High Court.</h4><h4><br>The Union of India and another vs Sudheer Hareesh Belagali. Writ Appeal 100396/2015 decided on 10 November 2020.</h4><h4><br><b>Judgment Link: </b></h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348391/1/WA100396-15-10-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348391/1/WA100396-15-10-11-2020.pdf</a></h4><h4><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Relevant paragraphs:&nbsp;</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">6 &amp; 7. Admittedly, the respondent applied for the post of Deputy Judge/Attorney General (Deputy Commandant). It is a post that involves only office work and it does not demand any extreme fitness as that of a soldier. The notification issued by the appellants to recruit a person for the post of Deputy Judge/Attorney General (Deputy Commandant), which is a Group “A”, gazetted Non- Ministerial Combatized Post, prescribes the qualification and the eligibility criteria in detail. As rightly noticed by the learned Single Judge, it states that the minimum weight of the person is to be 50 kgs and it does not prescribe the maximum weight. It is not the case of the appellants that the conditions prescribed in the said notification is erroneous. Under the said circumstances, they cannot have recourse to the guidelines of Ministry of Home Affairs for medical examination and state that as per the said guidelines, the maximum weight is also prescribed.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">9. Further, the post to which the petitioner has applied is a non-combat post and as per Article 14 of the Constitution of India, the Rules prescribed should have a reasonable nexus with the object sought to be achieved by it. Probably for the same reason, the upper limit for weight of a candidate is not prescribed in the aforementioned rules or the notification issued by the appellants</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Writ Appeal dismissed upholding the order of the learned single judge.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Judgment link for the single judges order-</span></div></h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/21020/1/WP105528-14-16-09-2014.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/21020/1/WP105528-14-16-09-2014.pdf</a></h4><h4><br><b>Compiled by S. Basavaraj &amp; Sumana Chamarty, Daksha Legal.</b></h4>', '8669300cf772145bb455e2c0c854e6d0.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-10', 1, '', '', '2020-12-07 03:26:59', '2021-01-20 23:13:01'),
(157, 'EKipR4LpoHYNxiwBijiduMOoa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'NDPS Act. Commercial quantity. Even neutral substance has to be taken into consideration', '<h4>Narcotic Drugs and Psychotropic Substances Act, 1985. Mixture of drug with neutral substance. To decide ‘commercial quantity’ of drug seized, even neutral substance has to be taken into consideration. Law on the point discussed. Karnataka High Court.</h4><h4><br>Rigesh Ravindran vs Union of India Criminal Petition 5009/2020 decided on 24 November 2020.</h4><h4><br>Judgment link: </h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349587/1/CRLP5009-20-24-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349587/1/CRLP5009-20-24-11-2020.pdf</a></h4><h4><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Relevant paragraphs:&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">9. The first contention is that the MDMA which has been seized from the possession of the&nbsp; accused after excluding neutral substance is not a commercial quantity. 10. It is the specific contention of the respondent that the Court while considering the quantity of the drug seized, neutral substance must also have to be taken into consideration.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">12. On close reading of Hira Singh and another Vs. Union of India and Another, reported in SC 2020 SCC Online SC 382., it has been made clear that in case of seizure of mixture of drugs with one or neutral substance, the quantity of neutral substance is not to be excluded and to be taken into consideration along with the actual content by weight of the offending drug while determining the small quantity or commercial quantity of the drug.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Petition for bail dismissed.</span></div></h4><h4><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4>', '4157d58729aaee362a7758dfcb11454f.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-24', 1, '', '', '2020-12-07 03:31:49', '2021-01-20 23:10:48'),
(158, 'ELAW6djmyQJ5VhZTD2auJaEiL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cancellation of bail. Cogent and overwhelming circumstances are necessary.', '<h4>Cancellation of bail. Unless supervening circumstances have rendered it no longer conducive to a fair trial, bail once granted cannot be cancelled. Cogent and overwhelming circumstances are necessary. Karnataka High Court.</h4><h4><br>Mohammed Imran vs State by Rural Police, Chintamani &amp; others. Criminal Petition 5023/2020 decided on 10 November 2020.</h4><h4><br><b>Judgment Link: </b></h4><h4>http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348579/1/CRLP5023-20-10-11-2020.pdf</h4><h4><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Relevant Paragraphs:&nbsp;</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">9. What are the factors to be kept in mind while considering the bail application relating to heinous offences have been indicated by the Hon’ble Apex Court in the case of Prasanta Kumar Sarkar Vs. Ashis Chaterjee&nbsp; &amp;&nbsp; another,&nbsp; reported in (2010)14&nbsp; SCC&nbsp; 496, by relying on its earlier decisions in the case of State of U.P. Vs. Amarmani Tripathi, reported in&nbsp; (2005)8 SCC 21 and in the case of Ram Govind Upadhyay Vs. Sudarshan Singh reported&nbsp; in&nbsp; (2002)3 SCC 598. They are</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(1) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(2) nature and gravity of the accusation;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(3) severity of the punishment in the event of conviction;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(4) danger of the accused absconding or fleeing, if released on bail;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(5) character, behaviour, means, position and standing of the accused;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(6) likelihood of the offence being repeated;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(7) reasonable apprehension of the witnesses being influenced; and</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(8) danger,&nbsp; &nbsp; &nbsp; of&nbsp; &nbsp; course,&nbsp; &nbsp; &nbsp; of&nbsp; &nbsp; justice&nbsp; &nbsp; &nbsp;being thwarted by grant of bail.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">10. The Hon’ble Apex Court in the case of Dolat Ram &amp; others Vs. State of Haryana, reported in (1995)1&nbsp; &nbsp;SCC&nbsp; &nbsp;349&nbsp; &nbsp;has&nbsp; discussed&nbsp; in&nbsp; detail&nbsp; about&nbsp; the cancellation of bail already granted. It is further observed that if already bail has been granted, it has to be considered and dealt with on different basis. It is further held that very cogent and overwhelming circumstances are necessary for directing the cancellation of bail already granted. This proposition of law has also been subsequently followed by the Hon’ble Apex Court in the case of Subhendu Mishra Vs. Subrat Kumar Mishra &amp; another, reported in AIR&nbsp; 1999 SC 3026 and in the case of Samarendra Nath Bhattacharjee Vs. State of West Bengal &amp; another, reported in AIR 2004 SC 4207.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">12. The satisfaction of the court, on the basis of material placed on record and the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.</span></div><b><br>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4>', '36c872adfcc9c5f9a11a3fdcf553debe.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-10', 1, '', '', '2020-12-07 03:34:01', '2021-01-20 23:06:16');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(159, 'gbtITYCmpJNLXhBcCIbdbHKVP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka SC/ST Commission has NO powers to deal with matters under Karnataka SC/ST (Prohibition of Certain Lands) Act, 1978. Karnataka High Court. ', '<h4><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\"><b>Ganganna vs The State of Karnataka &amp; others. </b></span></h4><h4><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\"><b>Writ Petition 46279/2013 decided on 9 November 2020. </b></span></h4><h4><b><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\">Justice M. Nagaprasanna.</span><br></b></h4><h4><b style=\"text-align: justify; font-family: var(--bs-font-sans-serif); font-size: 1.3125rem;\"><br></b></h4><h4><b><span style=\"text-align: justify; font-family: var(--bs-font-sans-serif); font-size: 1.3125rem;\">&nbsp;</span><span style=\"text-align: justify; font-family: var(--bs-font-sans-serif); font-size: 1.3125rem;\">… Facts. The Assistant Commissioner again initiated proceedings under the Karnataka SC/ST (Prohibition of Certain Lands) Act, 1978 and passed an order holding that Act was not applicable as both the petitioner and the fourth respondent were grantees of land which they are respectively holding and there was no violation of the provisions of the said Act. The fourth respondent did not choose to challenge the same before the Assistant Commissioner, but approached the&nbsp; Karnataka Scheduled Caste and Scheduled Tribe Commission for restoration of land in his favour without making the petitioner a party to the proceedings. The Commission ordered resumption of land in favour of the fourth respondent.&nbsp;</span><br></b></h4><h4><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem; font-family: var(--bs-font-sans-serif);\">14. Against the order of the Assistant Commissioner, appeal is maintainable under Section 5A of the 1978 Act. Section 11 gives overriding effect to 1978 Act. Hence, no other quasi-judicial forum is empowered to entertain an appeal against the order of the Assistant Commissioner passed in terms of the said Act.</span><br></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>16 &amp;17. Commission is created under the Karnataka State Commission for the Scheduled Castes and Scheduled Tribes Act, 2002. The commission is enjoined with functions to investigate and examine the working of various safeguards provided under Constitution of India or any other law intended for the welfare and protection of the scheduled castes and scheduled tribes and to enquire into specific complaints with respect to deprivation of their rights and safeguards under the Constitution.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>18. The provisions of the Act do not clothe the Commission with such powers to entertain the petition that is filed by a grantee seeking restoration of land and investigate into the matter.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>19. Commission has jurisdiction to entertain petitions seeking restoration of land. Therefore, the very act of Commission entertaining the petition filed by the fourth respondent, assuming jurisdiction to itself as an appellate authority over the order of the Assistant Commissioner is blatantly contrary to the provisions of the said Act, without jurisdiction and is non est in the eye of law.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Writ Petition allowed. Order of the Commission quashed.</b></span></div></h4>', '9f5ebdca2ee94f6396c98578f7591fb6.jpeg', 'baa94d2db3606a7eff27e0f9fdc97e3a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-23', 1, '', '', '2020-12-07 03:35:56', '2023-01-23 13:28:32'),
(160, 'n9t6yKdiFAK3CqAwV3a8ea5rU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land acquisition under BDA Act will not lapse when acquisition is complete even though the Scheme has lapsed. Karnataka High Court.', '<h4><span style=\"font-size: calc(1.275rem + 0.3vw); font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Savitramma and others vs The State of Karnataka and others. Writ Petition 10824/2009 decided on 5 October 2020. Justice M.I. Arun.</span><br></h4><h4><br></h4><h4><b><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; font-weight: 500; font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">12. The question that arises for consideration in the present writ petition is whether the scheme  in respect of  the petitioners’ property has lapsed and if yes, what is the effect of it.</span><br></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Section 27 of the Bangalore Development Authority Act, 1976 reads as follows:-“27. Authority to execute the scheme within five years.- Where within a period of five years from the date of the publication in the Official Gazette of the declaration under sub-section (1)  of section 19, the authority fails to execute the scheme substantially, the scheme shall lapse and the provisions of section 36 shall become inoperative.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">17. Section 16 of the Land Acquisition Act, 1894 as applicable in the State of Karnataka reads as under:-</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“16. Power to take possession. – (1) When the Deputy Commissioner has made an award under Section 11, he may take  possession  of the land, which shall thereupon [vest absolutely in the [Government]], free from all encumbrances.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(2) The fact of such taking possession may be notified by the Deputy Commissioner in the Official Gazette, and such notification shall be evidence of such fact.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">18. ..the land shall vest absolutely in the Government free from all encumbrances only upon the Deputy Commissioner making an award and after taking possession of the land.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">20(a) Decision of Hon’ble Supreme Court of India reported in (2011) 3 SCC 139 (Offshore Holdings vs. BDA and others), paragraphs 38, 39 and 93 reads as under: On a conjunctive reading of the provisions of Sections 27 and 36 of the State Act, it is clear that where a scheme lapses, the acquisition may not. This, of course, will depend upon the facts and circumstances of a given case. Where, upon completion of the acquisition proceedings, the land has vested in the State Government in terms of Section 16 of the Land Acquisition Act, the acquisition would not lapse or terminate as a result of lapsing of the scheme under Section 27 of the BDA Act.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Reference made to decisions in ILR 2005 KAR 295 D.Narayanappa vs. State of Karnataka and others, ILR 2012 KAR 5634 Gautam Kamat Hotels Pvt. Ltd., and others vs. Bangalore Development Authority, (1994) 1 SCC 44 Ram Chand and others vs. Union of India and others, ILR 2018 KAR 2144 BDA  vs.  State  of Karnataka and others, 2020 SCC Online SC 316 Indore Development Authority vs. Manoharlal, ILR 2003 KAR 3206 Narayana Setty and others vs. State of Karnataka and others, 2018 (3) SCC 412 Indore Development Authority vs. Shailendra (dead) through legal representatives and  others, .</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">23.To sum up the ratio laid down in the aforementioned decisions states that the purpose of BDA is to ensure organized development of the city of Bengaluru.  In order to achieve it, it can acquire lands but land acquisition is not the main purpose of BDA. When  it  acquires land pursuant to a particular scheme and that scheme is not implemented within a time frame as prescribed in Section 27 of the Bangalore Development Authority Act, the scheme lapses. If a scheme has lapsed and the lands sought to be acquired has not already vested with the BDA, acquisition proceedings in respect of those lands cannot proceed and the right of the land owners in respect of those lands revives.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">25…vesting does not depend upon payment   of compensation, vesting of land happens upon passing of award and taking possession of the same. Lapsing of  scheme is different from lapsing of acquisition. A scheme may lapse, however, if acquisition is complete, the acquisition does not lapse. The acquiring authority can use the land for any other public purpose.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">On Facts: </span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">26. …if the land has not vested with the BDA before the lapse of the scheme, the rights of the owners revive. The main objective of BDA is  development  of city of Bengaluru and it can acquire lands for the said purposes.  It has to acquire land only  when it is required.   In the instant case, though the final notification was issued in the year 1985  and possession taken in the year 2008,  the land remained unutilized and has been transferred to respondent No.4 in the year  2019.  Before  taking possession in the year 2008, BDA contemplated to denotify the land. It goes to show that the respondent no.2 never required the land in question. Further the award was passed in the year 1988 and the amount was deposited in the Civil Court in the year 2009.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(Since there was no challenge to acquisition for Metro, the proceedings only in respect of BDA acquisition are quashed.)</span></div></h4>', 'b2f77a1f3dd0a11a23777a3a148d17b3.jpeg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-05', 1, '', '', '2020-12-07 04:00:24', '2024-06-11 15:55:24'),
(203, 'pGj6zHsVn8rMQ0B7pXhvNfl0m', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court issues interim directions inter alia to implement Manual Scavengers Act.', '<h4></h4><p style=\"text-align: left;\"></p><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Karnataka High Court issues interim directions, inter alia, to implement Manual Scavengers Act.</b></div><p style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>All India Council of Trade Unions vs Union of India. Writ Petition 8928/2020 and connected matters. Order dated 9 December 2020.</b></span></p><p></p><p style=\"text-align: left;\"><span style=\"font-size: 1.3125rem;\"><b>Judgement Link:</b><br></span><a href=\"https://karnatakajudiciary.kar.nic.in/noticeBoard/wp-8928-2020-cw-09122020.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">https://karnatakajudiciary.kar.nic.in/noticeBoard/wp-8928-2020-cw-09122020.pdf</a><br><br></p><p><b><span style=\"font-family: &quot;Segoe UI&quot;;\">Interim Directions Issued:</span><br></b><span style=\"font-size: 1.3125rem;\"><span style=\"font-family: &quot;Segoe UI&quot;;\">i) The State Government shall place on record the details about the number of First Information Reports registered for the offences punishable under the Manual Scavengers Act, the details of the cases in which charge sheets were filed, the details of the cases which are pending and the details of the cases which resulted into conviction. The figures of cases which resulted into acquittal shall be also placed on record;</span><br></span><span style=\"font-size: 1.3125rem;\"><span style=\"font-family: &quot;Segoe UI&quot;;\">ii) The State Government shall place on record the compliance of the decisions taken in the meeting held on 23rd February 2018 under the Chairmanship of the then Additional Chief Secretary;</span><br></span></p><p><span style=\"font-size: 1.3125rem;\"><span style=\"font-family: &quot;Segoe UI&quot;;\">iii) The State Government shall produce necessary material to show that the District Level Survey Committees as contemplated by sub-clause (c) of Rule 2 of the Manual Scavengers Rules have been duly constituted. The State Government shall also call for the data from all the Districts for ascertaining whether the District Level Survey Committees have conducted surveys of manual scavengers and whether the Committees have published the final list&nbsp;</span></span><span style=\"font-family: &quot;Segoe UI&quot;;\">of Manual Scavengers of the respective Districts;<br></span><span style=\"font-family: &quot;Segoe UI&quot;;\"><span style=\"font-size: 1.3125rem;\">iv) The State Government shall place on record the necessary details as regards the constitution of the State Level Survey Committees as well as the details regarding the number of meetings of the State Level Survey Committee has held and the gist of functions so far discharged by the State level Committee;</span><span style=\"font-size: 21px;\"><br></span></span><span style=\"font-family: &quot;Segoe UI&quot;; font-size: 0.875rem;\">v) The State Government shall place on record comprehensive data about the survey of insanitary latrines throughout the State and the details about the conversion/demolition of insanitary latrines;<br></span><span style=\"font-family: &quot;Segoe UI&quot;; font-size: 0.875rem;\">vi) The State Government shall also place on record whether any notification has been issued in exercise of power conferred by the second proviso of subsection (2) of Section 5 of the Manual Scavengers Act;<br></span><span style=\"font-family: &quot;Segoe UI&quot;; font-size: 0.875rem;\">vii) The State Government shall place on record the details relating to final publication of the District-wise final lists of Manual Scavengers and the publication of State level final list of Manual Scavengers;<br></span><span style=\"font-family: &quot;Segoe UI&quot;; font-size: 0.875rem;\">viii) The State Government shall call for reports from the authorities/authorized officers specified for implementing the provisions of the Manual Scavengers Act under Section 18. The State Government shall ensure that the directions are issued to authorized officers/authorities to comply with the requirements of Section 19;<br></span><span style=\"font-family: &quot;Segoe UI&quot;; font-size: 0.875rem;\">ix) The State Government shall place on record the details about number of meetings held at the Districts, Sub-Divisional and the State level Vigilance Committees;<br></span><span style=\"font-family: &quot;Segoe UI&quot;; font-size: 0.875rem;\">x) The State Government shall issue directions to all the Local Authorities to implement the provisions of the Manual Scavengers Act and the Rules by specifically referring to the obligations and duties under various provisions. The compliance by the Local Authorities shall be monitored regularly by the State Level Monitoring Committee;<br></span><span style=\"font-family: &quot;Segoe UI&quot;; font-size: 0.875rem;\">xi) The State Government shall direct all the Local Authorities to comply with the obligations under subsections (2) and (3) of Section 4 and to immediately ascertain the requirement of number of sanitary community latrines within their respective jurisdictions and thereafter, make construction of such latrines. The data of such community sanitary latrines constructed in the State shall be placed on record;<br></span><span style=\"font-family: &quot;Segoe UI&quot;; font-size: 0.875rem;\">xii) The State Government shall immediately initiate awareness campaign on a large scale for elimination of the practice of open defecation and ensure that all Local Authorities comply with their obligation of eliminating the practice of open defecation in their&nbsp;</span><span style=\"font-family: &quot;Segoe UI&quot;; font-size: 0.875rem;\">jurisdiction. The State Government shall take help of NGOs and the Karnataka State Legal Services Authority to conduct the campaigns in rural areas;<br></span><span style=\"font-family: &quot;Segoe UI&quot;; font-size: 0.875rem;\">xiii) The State Government shall place on record the steps taken for rehabilitation of manual scavengers as provided in Section 13 by stating whether there are any Schemes of Central and State Government for rehabilitation of the manual scavengers as contemplated by Section 13;<br></span><span style=\"font-family: &quot;Segoe UI&quot;; font-size: 0.875rem;\">xiv) The Union of India shall place on record the copies of the notifications, if any, issued in exercise of the powers under explanation (b) to clause (g) of Section 2 of the Manual Scavengers Act;<br></span><span style=\"font-family: &quot;Segoe UI&quot;; font-size: 0.875rem;\">xv) The State Government shall place on record all the details regarding the compliance with the directions contained in paragraph 23.3 of the decision of the Apex Court in the case of Safai Karamchari Andolan (Supra);<br></span><span style=\"font-family: &quot;Segoe UI&quot;; font-size: 0.875rem;\">xvi) The Karnataka High Court Legal Services Committee and all the District Legal Services&nbsp;</span><span style=\"font-family: &quot;Segoe UI&quot;; font-size: 0.875rem;\">Authorities will be entitled to convene meetings of all the stakeholders for assisting them for making compliance with the directions issued by this Court and for implementation of the Manual Scavengers Act and the Rules framed thereunder; and<br></span><span style=\"font-family: &quot;Segoe UI&quot;; font-size: 0.875rem;\">xvii) Compliance affidavits shall be filed by the State Government and all concerned on or before 30th January 2021.<br></span><span style=\"font-family: &quot;Segoe UI&quot;; font-size: 0.875rem;\">Post the petitions on 2nd February, 2021.</span></p><b><i><span style=\"font-family: &quot;Segoe UI&quot;;\">Compiled by S. Basavaraj, Advocate, Daksha Legal.</span></i></b><p></p><p></p><p style=\"text-align: center;\"><br></p>', 'bfbe6c3fdaf48914a5022f82ab330500.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-09', 1, '', '', '2020-12-10 05:18:21', '2021-01-07 21:50:05'),
(162, 'OQSOmy2ukCrnhodKeFW21QkaA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. ‘Commissions issued by the foreign courts’. Object behind and mode of execution explained. ', '<h4>Civil Procedure Code. ‘Commissions issued by the foreign courts’. Object behind and mode of execution explained. Karnataka High Court.</h4><h4><br>United States Federal Trade Commission vs NIl. Writ Petition 13264/2020 decided on 23 November 2020.</h4><h4><br><b>Judgment Link: </b></h4><h4>http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349397/1/WP13264-20-23-11-2020.pdf</h4><h4><br><b>Relevant Paragraphs:</b> <br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">3(A) &amp; (B) The basic law relating to accomplishment of “commissions issued by the foreign courts” is found in the provisions of Sec.78 r/w Rules 19 to 22 of Order XXVI of the Code of Civil Procedure, 1908. The aforementioned provisions of the Code which were originally enacted by Act 10 of 1932 have been re-framed in the 1976 amendment, for giving effect to the Directive Principles of State Policy enshrined in Article 51 of the&nbsp; Constitution of India. The text of the aforesaid provisions of the Code are presumably enacted for giving effect inter alia to the intent of The Hague Convention to which both India and United States of America are parties; the Apex Court in SAFAI KARMACHARI ANDOLAN vs. UNION OF INDIA, (2014) 4 SCALE 165 has ruled that the International Covenants which have been ratified by India are binding to the extent they are not inconsistent with the provisions of the domestic law.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">3(D). This Court does not see any repugnancy between the provisions of the said Convention and those of domestic law; conversely, they are complementary to each other; the Indian law read with the provisions of the said Convention empowers this Court&nbsp; to&nbsp; appoint&nbsp; a Commission to collect evidence from witnesses on the formal request of a Foreign Court before whom a proceeding of civil nature is pending. The structure of the petition prima facie shows that: (a) the subject District Court wishes to obtain evidence of witnesses whose names are mentioned in the Letter of Request, (b) the proceedings pending before the said Court are of a civil nature, and (c) the witnesses mentioned in this Petition and in the Letter&nbsp; of Request are within the jurisdictional limits &amp; power of this Court.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Petition allowed.</span></div></h4><h4><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal</b></h4>', 'd611499cfbfada6c19eb6779630f06f5.jpeg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-23', 1, '', '', '2020-12-07 04:06:27', '2021-01-13 01:16:26'),
(163, 'POeZNQanafSoAo2PvC4cZPl9Y', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SC/ST (Prevention of Atrocities) Act. Refusal of bail by Special Court is an interlocutory order. ', '<h4>SC/ST (Prevention of Atrocities) Act. Refusal of bail by Special Court is an interlocutory order. Appeal to High Court under Section 14A of SC/ST Act is not maintainable. Remedy is petition under Section 438/439 Cr.P.C. Karnataka High Court.</h4><h4><br>Mahesh M.S. and others vs State of Karnataka. Criminal Petition 6901/2020 decided on 23 November 2020.</h4><h4><br><b>Judgment Link: </b></h4><h4>http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349400/1/CRLP6901-20-23-11-2020.pdf</h4><h4><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Held:</b><span style=\"font-size: 1.3125rem;\">&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Page 6. On close reading of Section 14A, it starts with a non-obstante clause and it says that an appeal shall lie, from any judgment, sentence or order, not being an interlocutory order of a Special Court. If that interpretation is taken into consideration, then&nbsp; under&nbsp; such circumstances, wider meaning&nbsp; has to be given to&nbsp; the applicability of the Code of Criminal Procedure. As could be seen from the provisions of Sections 438 and&nbsp; 439 of Cr.P.C., the concurrent jurisdiction has been given to both High Court as well as to the Sessions Court for releasing the accused on anticipatory bail or regular bail. Though an order has been passed by the Special Court under Section 438 or Section 439 of Cr.P.C., the parties are not going to challenge the order which has been passed by the trial Court under the said Act. It is an independent right which has been given to the parties to approach this Court ignoring the order passed by the trial Court under Section 438 or Section 439 of Cr.P.C. No where in Code of Criminal Procedure it says that as against the order of the bail, an appeal lies and even as could be seen from the provisions of Section 378 of Cr.P.C., it is made clear that as and when an order of acquittal or the other orders are passed, then an appeal lies.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Page 8. Taking into consideration the provisions of Section 14A of the Act, it makes very clear that against any order passed by the Special Court, which has reached its finality, then under such circumstances, an appeal lies under Section 14A of the Act. But the bail application is not considered to be a final order, it is only an interim order/interlocutory order to release or not to release&nbsp; the&nbsp; accused on bail.&nbsp; Even the said Section says ‘not being an interlocutory order’, that itself goes to show that the bail application is only&nbsp; &nbsp;an interlocutory order and against such order, no appeal lies. No enactment can take away the power vested with this Court under Section 438 or 439 of Cr.P.C. unless it is specifically excluded.</span></div></h4><h4><br>Compiled by S. Basavaraj, Advocate, Daksha Legal.</h4>', '2aeabc6e0646b43cbd6651b1eeab090d.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-23', 1, '', '', '2020-12-07 04:08:38', '2021-01-13 01:14:51'),
(165, 'zP46XCuz0DcYXafLTC3htzbt3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'JCB is a non-transport, construction equipment vehicle. Person holding licence to drive Light Motor Vehicle is authorized to drive JCB.', '<h4>Motor Vehicle Act. JCB is a non-transport, construction equipment vehicle. Person holding licence to drive Light Motor Vehicle is authorized to drive JCB. Karnataka High Court.<br>Reliance General Insurance Company Limited vs S. Ramya and others. Miscellaneous First Appeal 6789/2010 decided on 9 November 2020.</h4><h4><br>Judgment Link: </h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348449/1/MFA6789-10-09-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348449/1/MFA6789-10-09-11-2020.pdf</a></h4><h4><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Relevant paragraphs: 6. The Tribunal while considering&nbsp; the&nbsp; question&nbsp; of liability, held that the JCB in question was a&nbsp; construction vehicle and that construction equipment would not fall within the Class of non&nbsp; transport&nbsp; vehicle and that the driver of the JCB not only&nbsp; possessed&nbsp; a&nbsp; driving licence to drive the light motor vehicle but also a light&nbsp; motor&nbsp; vehicle&nbsp; cab.&nbsp; Thus,&nbsp; the&nbsp; Tribunal&nbsp; held&nbsp; that the driver of the offending JCB was&nbsp; authorized&nbsp; to&nbsp; drive the JCB in question, since it fell within the meaning of a ‘light transport vehicle’. The Tribunal therefore, fastened the liability to pay the compensation upon the insurer of the offending vehicle – JCB.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">7. Learned counsel for the insurer in this&nbsp; appeal contended that the JCB is not a vehicle which is classified anywhere in the Motor Vehicles Act as either a ‘transport vehicle’ or as a ‘construction vehicle’.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">10. It is not in dispute that the Central&nbsp; Government in&nbsp; terms&nbsp; of&nbsp; its&nbsp; notification&nbsp; dated&nbsp; 19.06.1992 had clearly&nbsp; delineated&nbsp; ‘construction equipment vehicles’ as&nbsp; ‘non transport vehicles’.&nbsp; In&nbsp; view of the fact that the driver of the&nbsp; JCB&nbsp; in&nbsp; question&nbsp; possessed a licence to drive a light motor vehicle and in view of what was held by the Apex Court in the case of Mukund Dewangan Vs. Oriental Ins.Co.Ltd.&nbsp; 2017(14)SCC663, the driver of the JCB was indeed authorized to drive a JCB in question and therefore, the Tribunal was right in fixing the liability to pay the compensation upon the insurer.</span></div></h4><h4><br>Compiled by S. Basavaraj &amp; Sumana Chamarty, Daksha Legal.</h4>', 'eb3e5cc8025c48bcdb562fbae7ad911a.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-09', 1, '', '', '2020-12-07 04:16:55', '2021-01-13 01:10:30'),
(169, 'Pt4yk4qKVp9nwd4O9iwyAkwR9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Anticipatory Bail. When regular bail is cancelled anticipatory bail can not be granted ', '<h4>Anticipatory Bail. Person whose regular bail is cancelled cannot seek anticipatory bail since he is in the constructive custody of the law. Supreme Court.</h4><h4><br>Manish Jain vs Haryana State Pollution Control Board. Special Leave Petition (Crl) 5385/2020, decided on 20 November 2020. </h4><h4>Judgment below.</h4><p><img src=\"https://dakshalegalhome.files.wordpress.com/2020/11/whatsapp-image-2020-11-22-at-10.43.51-am.jpeg?w=777\"></p><p><img src=\"https://dakshalegalhome.files.wordpress.com/2020/11/whatsapp-image-2020-11-22-at-10.43.51-am-1.jpeg?w=787\"><br></p>', '72780a1f13b3fad1f58faa49ac71456b.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-20', 1, '', '', '2020-12-07 04:38:46', '2020-12-07 04:38:46'),
(436, 'nXw3CHYL0K8D9Hf2sj79F6jy4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Administrative Law. A decision is illegal if it pursues an objective other than that for which the power to make the decision was conferred. Supreme Court reiterates.', '<h4>Harshit Agarwal &amp; Ors.vs Union of India &amp; Ors. Writ Petition (C) No.54 of 2021, decided on 8 February 2021.<br>Justice L.Nageswara Rao and Justice Krishna Murari.&nbsp;<br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/740/740_2021_38_1501_25988_Judgement_08-Feb-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/740/740_2021_38_1501_25988_Judgement_08-Feb-2021.pdf</a></h4><h4>9. Judicial review of administrative action is permissible on grounds of illegality, irrationality and procedural impropriety. A decision is illegal if it pursues an objective other than that for which the power to make the decision was conferred1. An administrative decision is flawed if it is illegal. There is no unfettered discretion in public law2. Discretion conferred on an authority has to be necessarily exercised only for the purpose provided in a Statute. The discretion exercised by the decision maker is subject to judicial scrutiny if a purpose other than a specified purpose is pursued. If the authority pursues unauthorized purposes his decision is rendered illegal. If irrelevant considerations are taken into account for reaching the decision or relevant considerations have been ignored, the decision stands vitiated as the decision maker has misdirected himself in law. It is useful to refer to R. vs. St. Pancras Vestry3. in which it was held: - “If people who have to exercise a public duty by exercising their discretion take into account maters which the Courts consider not to be proper for the exercise of their discretion, then in the eye of law they have not exercised their discretion”.</h4><h4>1 De Smith’s Judicial Review (Sixth Edition pg. 225)</h4><h4>2 Food Corporation of India v. M/S Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71</h4><h4>3 (1890) 24 QBD 37/ at p. 375</h4><div><br></div>', '31ad78b3e55697b6975dd350d429cf42.jpg', '23a32c2124ac59c48e4fa44888d97bfa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-08', 1, '', '', '2021-02-09 01:28:18', '2021-02-09 01:32:26'),
(167, '52Co7FtYQD0M9I3T16HKRYN2i', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'CPC. Mere marking of an inadmissible document does not establish its proof. Karnataka High Court. ', '<h4><span style=\"font-size: calc(1.275rem + 0.3vw); font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Ismailbee vs Mehtab Saheb.&nbsp;</span></h4><h4><span style=\"font-size: calc(1.275rem + 0.3vw); font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Regular Second Appeal 868/2007 decided on 22 October 2020.</span></h4><h4><span style=\"-webkit-text-size-adjust: 100%;\">Justice P.N. Desai.&nbsp;</span></h4><h4><br></h4><h4><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">26. ….the documents of which registration is required by Transfer of Property Act, 1882, shall be compulsorily required to be registered otherwise such documents shall not affect any immovable property. So, when once the transaction has been reduced to a form of document viz., “exchange deed”, then registration is compulsory. Such documents are not admissible as the evidence of any transaction affecting any immovable property comprised therein.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">40. Marking the document in evidence is one thing and the proof, admissibility, evidentiary value of the document and acting upon it is other thing. Simply, because the document is marked as an exhibit without there being any objection by the opposite party, when it is produced in examination-in-chief that will not enure benefit to the party to claim declaration of title in a immovable property or extinguishing title of opposite party in immovable property, when admittedly the immovable property which were exchanged are worth more than Rs.100/- and requires registration.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">42. The learned Single Judge of this Court in another decision reported in ILR 2003 KAR 3716 in the case of Krishna vs Sanjeev has considered the difference between “marking”, “admitting the documents” and “proof of documents during trial of the suit” as under:- “11. Marking of a document is a ministerial act whereas, admitting a document in evidence is a judicial act. Before a document is let in evidence, there should be a judicial determination of question wherever it can be admitted in evidence or not. In other words, the Court admitting a document must have applied its mind consciously to the question whether the document was admissible or not.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">44. Therefore, simply because Ex.P.1 is marked in the examination-in-chief without objection by opposite party, at the time of marking it, the said document cannot be used and acted upon as a evidence of title to grant declaration of title, as it being not sufficiently stamped and not registered. The said document also cannot be looked into for collateral purpose, in view of proviso to Section 49 of the Registration Act, 1908 and Section 118 of the Transfer of Property Act, 1882.&nbsp;</span></div></h4>', '3ad59d989117ae11374af21a593113c3.jpeg', 'e2f606ec2a3c484672c5820747f07a2e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-13', 1, '', '', '2020-12-07 04:29:09', '2023-01-13 11:08:43'),
(168, 'fq80TkD3zDwKK8sXA2DbB6aiV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'N.I Act. Section 138. When a probable defence is set up by accused, burden is on the complainant to explain it. Karnataka High Court.', '<h4><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\"><b>Santosh vs Harilal. </b></span></h4><h4><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\"><b>Criminal Appeal 2784/2012 decided on 11 November 2020. </b></span></h4><h4><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\"><b>Justice Ravi V. Hosmani.&nbsp;</b></span></h4><h4><span style=\"font-size: 1.3125rem; text-align: justify; font-family: var(--bs-font-sans-serif);\"><b><br></b></span></h4><h4><b><span style=\"font-size: 1.3125rem; text-align: justify; font-family: var(--bs-font-sans-serif);\">17. The facts of the present case are not on par with those in Bir Singh Vs. Mukesh Kumar reported in (2019) 4 SCC 197, however, pivots on a different issue. The trial Court on consideration of the material omissions and contradictions in the version of the complainant regarding period of transaction as well as amount due not matching the cheque amount involved, acquitted the accused. As rightly submitted by learned counsel for the accused, the standard of proof for upsetting the presumption in favour of complainant is preponderance of probabilities as held in Vijay Vs. Lakshman &amp; Ors. 2013 (3) SCC 86 . In order to do so, accused need not step into the witness box to prove that cheque issued was not in discharge of a legally recoverable debt or liability under Section 138 of the NI Act. He can very well establish the same by setting up a defence by preponderance of probabilities to upset the rebuttable presumption available to complainant as per Rangappa vs. MohanRangappa2010 (11) SCC 441, case when a probable defence is set up by accused, burden of explaining the same is on the complainant and standard of proof applicable for evaluating such explanation would be proved beyond reasonable doubt.</span><br></b></h4><h4 style=\"text-align: justify;\"><b>&nbsp; </b></h4><h4 style=\"text-align: justify;\"><b>18. On over all consideration of the entire evidence on record, omissions and contradictions with regard to the period of transaction and amount involved coupled with failure to produce books of accounts by the complainant, who is a businessman&nbsp; and the transaction being a part of his business, the Trial Court, in my opinion, has rightly come to the conclusion that the complainant has failed to prove that an offence under Section 138 of the N.I. Act was committed by the accused and therefore, acquittal of the accused for the offence is justified. Hence, there is no merit in the appeal.</b></h4><h4 style=\"text-align: justify;\"><b>Accordingly, it is dismissed.</b></h4>', '63a157d8ec80431c699d448aa58990b7.JPG', '7d8091c1ba7a74a8c621bc9c08425964.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-23', 1, '', '', '2020-12-07 04:34:16', '2023-01-23 15:29:12'),
(170, 'bchp3avOqq8I7cLwbJBQuAa8Q', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'MVC Act. Even adult person can claim compensation for the death of brother if dependency is proved. ', '<h4>Motor Vehicles Act. Even adult person can claim compensation for the death of elder/younger brother. However, unless dependency is proved, compensation cannot be awarded. Karnataka High Court.</h4><h4><br>Raju Singh vs Sharanappa and others. Miscellaneous First Appeal 103546/2019 decided on 11 November 2020.</h4><h4><br>Judgment Link: </h4><h4>http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349058/1/MFA103546-19-11-11-2020.pdf</h4><h4><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Relevant paragraphs:&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">8 &amp;9. There can be no two opinions that even an adult younger brother or grown up son is entitled to claim compensation under the head of loss of dependency subject to condition that they demonstrate that they were indeed dependant on the income of the deceased. The point that arises for consideration in this appeal is whether the appellant has made out a case for grant of compensation under the head of loss of dependency? In the absence of any evidence to the contrary, we are of the considered opinion that the reasoning and conclusion of the Tribunal does not call for any interference.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">13. In the ruling of National Insurance Company Limited, the Apex Court entered upon the facts of the case and after appreciating the same, held in paragraph 15 as under: “15. It is thus settled by now that the legal representatives of the deceased have a right&nbsp; to&nbsp; apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the&nbsp; deceased and not to limit the claim towards conventional heads only.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">14. As noted by the Tribunal and as concluded by us, we do not find any material which demonstrates such a fact in the present case. In the absence of evidence demonstrating that the adult was dependant on the&nbsp; income of the deceased or that the deceased was caring for the welfare and well being of the claimant, the claimant would not be entitled to claim compensation under the head of loss of dependency.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Appeal rejected</span></div></h4><h4><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Compiled by S. Basavaraj, Advocate, Daksha Legal</span></div></h4>', '86a6859f5d0292d95ec78961883bac1f.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-11', 1, '', '', '2020-12-07 04:42:10', '2021-01-09 23:45:52');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(171, 'ZBaIBBzKxUaq8cSnuXwdTXDUP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'N.I Act. Magistrate can convert trial of complaint under Section 138 only into a summons triable case and not a warrant case. ', '<h4 style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; margin-right: 0px; margin-bottom: 0px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><font color=\"#3c434a\" face=\"Noto Serif, Georgia, Times New Roman, Times, serif\"><span style=\"font-size: 17px;\"><b>Negotiable Instruments Act. Power of Magistrate to convert trial of complaint under Section 138 is confined only to convert the case into a summons triable case and not as warrant case. Karnataka High Court. (Division Bench answering reference)</b></span></font></h4><h4 style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; margin-right: 0px; margin-bottom: 0px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><font color=\"#3c434a\" face=\"Noto Serif, Georgia, Times New Roman, Times, serif\"><span style=\"font-size: 17px;\"><b><br></b></span></font></h4><h4 style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; margin-right: 0px; margin-bottom: 0px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><font color=\"#3c434a\" face=\"Noto Serif, Georgia, Times New Roman, Times, serif\"><span style=\"font-size: 17px;\"><b>M/s. Mahathru Technologies vs M/s Creative Infotech. Criminal Petition 1329/2020 decided on 19 November 2020.</b></span></font></h4><h4 style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; margin-right: 0px; margin-bottom: 0px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><font color=\"#3c434a\" face=\"Noto Serif, Georgia, Times New Roman, Times, serif\"><span style=\"font-size: 17px;\"><b><br></b></span></font></h4><h4 style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; margin-right: 0px; margin-bottom: 0px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><font color=\"#3c434a\" face=\"Noto Serif, Georgia, Times New Roman, Times, serif\"><span style=\"font-size: 17px;\"><b>Judgment Link: </b></span></font></h4><h4 style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; margin-right: 0px; margin-bottom: 0px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348866/1/CRLP1329-20-19-11-2020.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348866/1/CRLP1329-20-19-11-2020.pdf</a><br></h4><h4 style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; margin-right: 0px; margin-bottom: 0px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><font color=\"#3c434a\" face=\"Noto Serif, Georgia, Times New Roman, Times, serif\"><span style=\"font-size: 17px;\"><b><br><div style=\"text-align: justify;\"><b>Relevant paragraphs:&nbsp;</b></div><div style=\"text-align: justify;\"><b>Question referred by the Hon’ble single judge to larger bench. “Whether in a case for offence punishable under Section 138 of the Negotiable Instruments Act, 1881, the Court of Magistrate exercising its power under the second proviso to Section 143 of the Negotiable Instruments Act, if it appears to the said Court that it is undesirable to try the case summarily, after recording reasons, can proceed to try/hear the said case as a warrant case?”. The reference was made in view of the conflicting views expressed by the coordinate Benches on the above issue in M/S. Mesh Trans Gears Private Limited, Bangalore –vs- Dr. R. Parvathareddy – ILR 2014 KAR 5237 and Mahendra Kumar –vs- Gangamma.B – ILR 2018 KAR 4761, by relying upon a decision of another learned Single Judge in M/S. Leo Granex –vs- M/S. Pavillion Granites &amp; others – ILR 2009 KAR 4062.</b></div></b></span></font></h4><h4 style=\"text-align: justify; -webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; margin-right: 0px; margin-bottom: 0px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><font color=\"#3c434a\" face=\"Noto Serif, Georgia, Times New Roman, Times, serif\"><span style=\"font-size: 17px;\"><b><br></b></span></font></h4><h4 style=\"text-align: justify; -webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; margin-right: 0px; margin-bottom: 0px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><font color=\"#3c434a\" face=\"Noto Serif, Georgia, Times New Roman, Times, serif\"><span style=\"font-size: 17px;\"><b>16. There is a substantial difference between the procedure prescribed by the provisions of Cr.P.C for trial of a ‘warrant case’ and trial of a ‘summons case’. In case of trial of a warrant case, under the provisions of Section 245 of Cr.P.C, the learned Magistrate is bound to consider the plea of discharge for the offence alleged against the accused. Section 246 of Cr.P.C, provides for framing of charge. Section 244 contemplates recording of evidence before charge. However, under the procedure prescribed for trial of a summons case, there is no requirement of framing of charge. Thus, between the two, the procedure applicable to a summons case is&nbsp; less&nbsp; cumbersome and expeditious, as compared to the procedure applicable to a warrant case. A trial in a summons case can be concluded more expeditiously than a trial of warrant case, as in the case of trial of&nbsp; a warrant case, a charge is required to be framed which is not at&nbsp; all the requirement in case of a summons case.</b></span></font></h4><h4 style=\"text-align: justify; -webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; margin-right: 0px; margin-bottom: 0px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><font color=\"#3c434a\" face=\"Noto Serif, Georgia, Times New Roman, Times, serif\"><span style=\"font-size: 17px;\"><b><br></b></span></font></h4><h4 style=\"text-align: justify; -webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; margin-right: 0px; margin-bottom: 0px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><font color=\"#3c434a\" face=\"Noto Serif, Georgia, Times New Roman, Times, serif\"><span style=\"font-size: 17px;\"><b>21. If the learned Magistrates are allowed to convert the complaints filed alleging an offence punishable under Section 138 of the said Act of 1881 into a warrant triable case, the consequence will be disastrous as the trial will be prolonged. Lot&nbsp; of time will have to be devoted for hearing of&nbsp; discharge&nbsp; application and for framing of charge. It will amount to defeating the very object of introducing Chapter XVII containing Sections 138 to 142 in the said Act of 1881 with effect from 1st April 1989.</b></span></font></h4><h4 style=\"text-align: justify; -webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; margin-right: 0px; margin-bottom: 0px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><font color=\"#3c434a\" face=\"Noto Serif, Georgia, Times New Roman, Times, serif\"><span style=\"font-size: 17px;\"><b><br></b></span></font></h4><h4 style=\"text-align: justify; -webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; margin-right: 0px; margin-bottom: 0px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><font color=\"#3c434a\" face=\"Noto Serif, Georgia, Times New Roman, Times, serif\"><span style=\"font-size: 17px;\"><b>22. Therefore, for the foregoing reasons, we answer the question formulated by the learned Single Judge in the&nbsp; order dated 29th June 2020 in the negative. It is held that the power of the learned Magistrate to convert the trial of a complaint under Section 138 of the said Act of 1881 under the second proviso to sub-section (1) of Section 143 is confined only to converting the case into a summons triable case.</b></span></font></h4><h4 style=\"text-align: justify; -webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; margin-right: 0px; margin-bottom: 0px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><font color=\"#3c434a\" face=\"Noto Serif, Georgia, Times New Roman, Times, serif\"><span style=\"font-size: 17px;\"><b><br></b></span></font></h4><h4 style=\"text-align: justify; -webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; margin-right: 0px; margin-bottom: 0px; margin-left: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><font color=\"#3c434a\" face=\"Noto Serif, Georgia, Times New Roman, Times, serif\"><span style=\"font-size: 17px;\"><b>Compiled by S. Basavaraj, Advocate, Bangalore</b></span></font></h4>', '098b34798bed45b6b0c9fa70053efe6e.png', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-19', 1, '', '', '2020-12-07 04:50:29', '2021-01-09 23:45:20'),
(172, 'iCLb6wP2pa4ZsqmBjee0nuQoI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'MVC Act. Insurer issuing policy beyond fitness certificate period cannot avoid liability ', '<h4>Motor Vehicle Act. Insurer issuing policy beyond fitness certificate period cannot avoid liability on the ground that the vehicle did not have fitness certificate at the time of accident. Karnataka High Court.</h4><h4><br>The Branch Manager, The Oriental Insurance Company Ltd vs Mallesh Miscellaneous First Appeal 2417/2010 decided on 25 September 2020.</h4><h4><br>Judgment Link: </h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/342171/1/MFA24217-10-25-09-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/342171/1/MFA24217-10-25-09-2020.pdf</a></h4><h4><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Relevant Paragraphs: <br>11. The third contention which has been raised by the Insurance Company is that the vehicle did not have&nbsp; a permit to ferry passengers and/or that it did not have a fitness certificate. This contention cannot be raised by the Insurance Company after having&nbsp; issued the insurance policy, if at all the vehicle did not have a fitness certificate, the insurance policy itself ought not to have been issued and if the&nbsp; fitness certificate would expire during the period the insurance policy is in operation, the Insurance Company ought to have restricted the operation of the insurance policy till the time, the fitness was valid. Thus, once the insurance policy has been issued, the Insurance Company cannot deny its liability on the ground that there is no fitness certificate. As regards the aspect of there being no permit, a perusal of the document indicate that&nbsp; there is no evidence, which has been laid by the Insurance Company nor any stand taken in this regard. Hence the said contention cannot be taken up during the course of this appeal. Hence, this contention is also rejected.</span></div></h4><h4><br></h4><h4>Compiled by S. Basavaraj, Advocate, Daksha Legal.</h4>', '964d443fa7c744338afbabf5867b7145.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-09-25', 1, '', '', '2020-12-07 04:52:54', '2021-01-09 23:44:53'),
(173, 'Lt9wWhe5IH8vh1TDLEe8Ogy6V', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicle Act. Vehicle insured but without valid fitness certificate. Insurer is not liable. However ‘pay and recover’ is applicable. Karnataka High Court.', '<p><b>Malleshi vs Hafiza Begum and another. </b></p><p><b>MFA.CROB 200013/2018 &amp; MFA 201596 decided on 6 November 2020. </b></p><p><b>Justice Hanchate Sanjeevkumar.&nbsp;<br></b></p><p><b><br></b><div style=\"text-align: justify;\"><span style=\"font-size: 14px;\"><b>20. Further, the Full Bench of this Court in the case of New India Assurance Company Limited v. Yellavva W/o Yamanappa Dharanakeri and&nbsp; another&nbsp; [2020 (2) AKR 484 was pleased to lay down the guidelines regarding ‘pay and recovery’. It is the law laid down that even in case of Insurance Companies are having regard to Section 149(1) R/w Section 149(7) of the M.V.Act whenever a case falls under Section 149(2)(a) of the M.V.Act and the same is successfully established or proved by the insurer, but, it is the duty of the insurer to satisfy the judgments and awards against person insured in respect of third party risks even in case of infraction is proved as defence taken by the Insurance Companies. Therefore, in the present case also the lorry bearing Reg.No.KA-28/A- 5775 was not having valid fitness certificate as on the date of accident and certainly it can be said that it is an infraction but indisputably the said lorry is insured with the appellant/Insurance Company. </b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 14px;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 14px;\"><b>Therefore, in view of this the appellant/Insurance Company shall pay first the compensation and satisfy the claim then recover it from the owner of the said lorry.</b></span></div></p><p></p>', '7d994386fd3622f6e416198b1ea40ede.JPG', 'bd9797befeb545f4c0e3e77cdc482c9c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-23', 1, '', '', '2020-12-07 04:55:43', '2023-01-23 15:42:05'),
(174, 'qQOrTvdFIAx8nd6AXdDr1tuVS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'MVC Act. Compensation. Minor aged 17 years, adolescent is capable of earning. Income to be calculated accordingly. ', '<h4>Motor Vehicles Act. Compensation. Minor aged 17 years cannot be considered as child. Being adolescent, he is capable of earning and the income shall be calculated accordingly. Karnataka High Court.</h4><h4><br>Chetana and others vs Babuji M and others. Miscellaneous First Appeal. Decided on 13 November 2020.</h4><h4><br>Judgment Link: </h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349061/1/MFA102268-19-13-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349061/1/MFA102268-19-13-11-2020.pdf</a></h4><h4><br>Relevant Paragraphs: <br><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">7 &amp; 8. The deceased was aged 17 years at the time of the accident. According to the appellants, the deceased was a student and was also doing milk vending business and he was an earning member of his family. The..Tribunal concluded that the deceased was a child of 17 years and there was no evidence to show that he was engaged in milk vending and accordingly considered him as a person without income.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">10. Section 2 (i) and (ii) of the Child and&nbsp; Adolescent&nbsp; Labour&nbsp; (Prohibition&nbsp; and&nbsp; Regulation) Act, 1986 (for short “the Act”) defines as&nbsp; follows: “(i) “adolescent” means a person who has completed his fourteenth year of age abut has not completed his eighteenth year; “(ii) “child” means a person who has not completed his fourteenth year of age or such age as may be specified in the Right of Children to Free and Compulsory Education&nbsp; Act, 2009 (35 of 2009), whichever is more.”</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">11. Section 3 of the Act prohibits employment of a child in certain occupations and processes. The said Act does not prohibit the adolescent of 17 years to involve&nbsp; in&nbsp; a milk vending business. The deceased and his family are from rural area and it is common for a person of 17 years to be involved in milk vending or similar&nbsp; occupations. The Tribunal has completely lost sight of this&nbsp; fact&nbsp; and the reasoning is contrary to and in the teeth of the statutory provisions.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">15. The deceased was aged 17 years at the&nbsp; time of the accident. As per the decision of the Hon’ble Apex Court in Sarla Verma and others v. Delhi Transport Corporation and another reported in 2009 ACJ 1298, the applicable multiplier is ‘18’ that needs to be applied.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Appeal partly allowed.</span></div></h4><h4><br>Compiled by S. Basavaraj, Advocate, Daksha Legal.</h4>', '59a85c5a2bbb68916ba75230f3356508.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-13', 1, '', '', '2020-12-07 04:59:57', '2021-01-08 23:35:39'),
(175, '0lXLUTFSr6JYDBLAO58v7j8dM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Quo-Warranto. Person elected on a fake caste certificate is liable to be ousted from the office. ', '<h4>Writ of Quo-Warranto. Person elected on the basis of a fake caste certificate is liable to be ousted from the office by a writ of quo-warranto. Filing of Election Petition is not an alternative remedy. Karnataka High Court.&nbsp;</h4><h4><br>Prabhakar vs The State of Karnataka and others. Writ Petition 138396/2020 decided on 10 November 2020.</h4><h4><br>Judgment Link:</h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348668/1/WP138396-20-10-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348668/1/WP138396-20-10-11-2020.pdf</a></h4><h4><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Case details</b>: – Respondent 4 contested and won the election to the office of Board of Management of a Co-operative Credit Society governed by the provisions of the Karnataka Co-operative Societies Act, 1959. He submitted a caste certificate claiming to be ‘scheduled caste’. Writ Petition was filed seeking a writ of quo-warranto against him.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">5. In addition to reiterating the various grounds urged in the petition and referring to the documents produced by the petitioner, learned counsel for the petitioner submits that the petitioner is entitled to the reliefs sought for by him in the petition, particularly when respondent No.4 is guilty of fraud in that he produced a fake caste certificate which was not at all issued by the Tahsildar as can be seen from the material on record. In support of his contentions, learned counsel places reliance on the following decisions:-University of Mysore vs. C.D.Govinda Rao – AIR 1965 SC 491; P.M.Parameshwara Murthy vs. State of Karnataka – W.P.No.4340/2012 dated 21.11.2012, Chairman &amp; M.D., FCI vs. Jagadish Balaram Bahira – AIR 2017 SC 3271, Bharathi Reddy vs. State of Karnataka – W.A.No.5872/2017 c/w W.A.No.100657/2017 dated 04.12.2017, Bharathi Reddy vs. State of Karnataka – (2018) 6 SCC 162.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">10.the genesis/basis for the respondent No.4 to file nomination, contest elections and get elected under the scheduled caste category was the alleged caste certificate which is clearly a fake certificate that was not issued by the Tahsildar. It is therefore clear that the entire election process commencing from filing of nomination and culminating in the election of respondent No.4 on the basis of a fake caste certificate is vitiated on account of the same being illegal and contrary to statutory provisions and Rules of procedure and consequently, availability of the remedy under Section 70 of the Act is not a bar for the present petition seeking quashing of the election results and for issuance a writ of quo warranto against the respondents.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">14. The power of this Court to issue a writ of quo warranto is now well settled. In C.D.Govindra Rao’s case supra, a Constitution Bench of the Apex Court, while quoting Halsbury’s Laws of England held as under:- “An information in the nature of a quo warranto took the place of the obsolate writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim, in order that the right to the office&nbsp; or franchise might be determined.”</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">15. It follows there from that respondent No.4 is holding the post of an elected director of the Society without any legal authority and he is guilty of usurpation of the said post. Consequently, in view of the fact that the post held by the respondent No.4 is a public office and that the respondent No.4 got elected to the post based on a fake caste certificate which was never issued by the Tahsildar and that respondent No.4 is holding the post without any legal authority coupled with the fact that he is not able to show cause as to how and under which authority of law he is holding the post, I am of the considered opinion that as a consequence of setting aside the election results at Annexure H, it is just and proper to issue a writ of Quo Warranto against respondent No.4 directing him to be ousted from the post of elected director of respondent 3 society.</span></div></h4><h4 style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; text-align: left;\"><br><b>Compiled by Harsh Desai and S. Basavaraj, Advocates for Daksha Legal.</b></span><br></h4>', 'a88ce988cb02740e35f6db04e71bbd47.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-10', 1, '', '', '2020-12-07 05:11:58', '2021-01-09 23:14:40'),
(176, 'YBDfFepqUvOlN3BpVbdwRRWZ9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Default Bail Granted Can Be Cancelled By High Court under Section 439 Cr. P. C', '<p>Default Bail Granted Can Be Cancelled By High Court U/s 439(2) CrPC: Supreme Court.<br><br><b>Judgment link:</b><br><br>https://main.sci.gov.in/supremecourt/2019/4200/4200_2019_36_1501_24718_Judgement_20-Nov-2020.pdf</p><p><br></p><p><br></p><p><br></p><div><br></div>', '38a81a5795fb32243a31a93063514076.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-20', 1, '', '', '2020-12-07 05:16:47', '2021-01-08 22:32:40'),
(177, '1e4wqWO1lKM1ya2UZ6AHAyPbn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Pension is a property under Article 300-A of the Constitution and it constitutes a fundamental right to livelihood under Article 21.', '<h4>Pension is a property under Article 300-A of the Constitution and it constitutes a fundamental right to livelihood under Article 21. Karnataka High Court quotes Shakespeare from ‘Fall of Cardinal Wolsey’ while directing early payment of pension.</h4><h4><br>K.T.Thimmaiah vs The General Manager and another. Writ Petition 11517/2018 decided on 9 November 2020.</h4><h4><br><b>Judgment Link: </b></h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348998/1/WP11517-18-09-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348998/1/WP11517-18-09-11-2020.pdf</a></h4><h4><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Magnificent opening paragraph</b><span style=\"font-size: 1.3125rem;\">: To quote Shakespeare from fall of Wolsey, with a slight variation to suit the context “Had I served my God with half the zeal that I served my King, I would not have fallen in these days of impecuniosities”, is the cry of the petitioner in this petition seeking terminal benefits after having retired on attaining the age of superannuation twenty one years ago.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br>Para 20. KPTCL, is a State under Article 12 of the Constitution of India. The aforesaid act of leaving its employee in the lurch does not behove its status of being a State under Article 12 of the Constitution of India. Therefore, it is imperative to issue a mandamus for release of all the terminal benefits that are accrued in favour of&nbsp; the petitioner along with interest and also mulct the KPTCL with exemplary costs for harassing and driving its employee to this Court time and again and now for release of terminal benefits. Therefore, the petitioner would be entitled to release of all terminal benefits along with interest at 9% p.a. from the date it fell due i.e., 01.08.1999 till the date of its payment.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br>21. Before parting with the judgment it is necessary to remind the KPTCL that pension payable to its employees upon superannuation is a property under Article 300-A of the Constitution of India and it constitutes a fundamental right to livelihood under Article 21 of the Constitution of India. The deprivation of even a part of this amount cannot be accepted, except in accordance with law, as pension is neither a bounty, charity or a gratuitous payment but an indefeasible right of an employee in terms of the Rules. Terminal benefits will enable a retired employee to live a life free from want, with decency, independence and self-respect. Depriving such right to livelihood, will leave a pensioner fall on the thorns of life and bleed.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Writ Petition allowed</span></div></h4><h4><div style=\"text-align: justify;\"><br></div><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4>', '718931f0ebaecbd73c5c2c24110ea470.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-09', 1, '', '', '2020-12-07 05:22:37', '2021-01-09 23:10:26'),
(179, 'Kz96jM7Z7r7DEmVJNIRXTRXc9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Defence of grave and sudden cant be used to dehumanize the person of victim', '<h4>Criminal trial. Defence of ‘grave and sudden’ provocation shall not avail an accused if the result of permitting such a defence is to dehumanize the person of victim, stultify her individual autonomy, agency and dignity. Karnataka High Court.</h4><h4><br>Vijay@Vijendra vs The State of Karnataka. Criminal Appeal 200141/2016 decided on 20 November 2020. Author, Justice P. Krishna Bhat.</h4><h4><br>Judgment Link: </h4><h4>http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348940/1/CRLA200141-16-20-11-2020.pdf</h4><h4><br>Relevant paragraphs: <br><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">18. Accused, as the evidence shows, has betrayed utter disdain to the inherent right of C.W.1 as a human; to her individual autonomy to choose who to love and to her right to choose a husband and even, to defer to the wishes of her parents in matters of significance in her life, which in itself is a conscious “choice”. This in essence is a fundamental right guaranteed to every individual under Articles 14, 19 (1) (a) and 21 of Constitution of India. To permit the accused to take a defence of ‘grave and sudden provocation’ in the facts and&nbsp; &nbsp;circumstances&nbsp; &nbsp;of&nbsp; &nbsp;this&nbsp; &nbsp;case&nbsp; &nbsp;apart&nbsp; &nbsp;from being “obnoxious”,&nbsp; (Pawan&nbsp; Kumar,&nbsp; &nbsp;at&nbsp; para-47)&nbsp; [(2017) 7 SCC 780] will result in negation of the fundamental rights of the deceased under Articles 14, 19 (1) (a) and 21 of the Constitution of India and, as such, opposed to public policy.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">19.While on this, we must hasten to add that we are not unmindful of the general position that fundamental rights not excluding those under Articles 14, 19(1)(a) and 21 are all guarantees against actions of State and its instrumentalities and not against criminal offences by one citizen against another. We are even more conscious of the ‘felt necessities of the time’ that wherever text does not inhibit and context demands, ordinary laws of the land should be given such construction and, scope of defences available&nbsp; so mapped that lofty principles enshrined under the above Articles are given full effect to and dehumanizing effect of the defences are suitably pruned without doing violence to the statute creating such defence while at the same time making it resonate with the current understanding of the concept of gender justice and dignity of the individual. ‘The Declaration of Independence’ of July 4, 1776 says in ringing tones, “……..we hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, – That whenever any Form of Government becomes destructive of these ends, it is the Right of the people to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and happiness “.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">20. Life, Liberty and pursuit of Happiness is an entitlement and a right without which there cannot be a ‘right to life’ for an individual and shorn of the same, it will only be a creature existence. Thus viewed, extending the protective umbrella of ‘grave and sudden’ provocation to the accused, in the facts and circumstances of this case, will have the effect of robbing the victim of her right to express her `choice’. In other words, the defence of ‘grave and sudden’ provocation shall not avail an accused if the result of permitting such a defence is to dehumanise the person of victim, stultify her individual autonomy, agency and dignity.</span></div></h4><h4><div style=\"text-align: justify;\"><br></div><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4>', 'f7becbc10a77dec045dafe887a236160.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-20', 1, '', '', '2020-12-07 18:24:53', '2021-01-08 22:27:58'),
(180, 'eLhvDF3WNofpktF6GUoTRNrzL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Education. Court cannot examine question paper and answers except directing revaluation if rules permit. Supreme Court.', '<p style=\"text-align: center;\"><b>Education. Court cannot examine question paper and answers except directing revaluation if rules permit. Supreme Court.</b><br>Vikesh Kumar Gupta &amp; Anr. vs The State of Rajasthan &amp; Ors. Civil Appeal Nos.3649–3650 of 2020 decided on 7 December 2020. Justice L. NAGESWARA RAO, Justice HEMANT GUPTA, Justice AJAY RASTOGI.<br></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br><b>Judgment Link:&nbsp;</b></span></div><div style=\"text-align: justify;\"><a href=\"https://main.sci.gov.in/supremecourt/2019/28550/28550_2019_35_1501_24973_Judgement_07-Dec-2020.pdf\" target=\"_blank\" style=\"background-color: rgb(255, 255, 255); font-size: 0.875rem;\">https://main.sci.gov.in/supremecourt/2019/28550/28550_2019_35_1501_24973_Judgement_07-Dec-2020.pdf</a><a href=\"https://main.sci.gov.in/supremecourt/2019/28550/28550_2019_35_1501_24973_Judgement_07-Dec-2020.pdf\" target=\"_blank\"><br></a></div><br><div style=\"text-align: left;\"><span style=\"font-size: 0.875rem;\"><b>HELD: </b><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">11. Though re-evaluation can be directed if rules&nbsp;</span><span style=\"font-size: 0.875rem; text-align: center;\">permit, this Court has deprecated the practice of reevaluation and scrutiny of the questions by the courts which lack expertise in academic matters. It is not&nbsp;</span><span style=\"font-size: 0.875rem; text-align: center;\">permissible for the High Court to examine the question papers and answer sheets itself, particularly when the Commission has assessed the inter se merit of the&nbsp;</span><span style=\"font-size: 0.875rem; text-align: center;\">candidates (Himachal Pradesh Public Service&nbsp;</span><span style=\"font-size: 0.875rem; text-align: center;\">Commission v. Mukesh Thakur &amp; Anr.) Courts have&nbsp;</span><span style=\"font-size: 0.875rem; text-align: center;\">to show deference and consideration to the&nbsp;</span><span style=\"font-size: 0.875rem; text-align: center;\">recommendation of the Expert Committee who have the&nbsp;</span><span style=\"font-size: 0.875rem; text-align: center;\">expertise to evaluate and make recommendations [SeeBasavaiah (Dr.) v. Dr. H.L. Ramesh &amp; Ors.) Examining the scope of judicial review with regards to reevaluation of answer sheets, this Court in Ran Vijay&nbsp;</span><span style=\"font-size: 0.875rem; text-align: center;\">Singh &amp; Ors. v. State of Uttar Pradesh &amp; Ors.</span><span style=\"font-size: 0.875rem;\"><br><br>12. In view of the above law laid down by this Court, it was not open to the Division Bench to have examined&nbsp;</span><span style=\"font-size: 0.875rem;\">the correctness of the questions and the answer key to come to a conclusion different from that of the Expert&nbsp;</span><span style=\"font-size: 0.875rem;\">Committee in its judgment dated 12.03.2019 held that court should not re-evaluate or scrutinize the answer sheets of a candidate as it has no expertise the matters and the academic matters are best left to academics.</span></div></span></div><p></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">13. A perusal of the above judgments would make it clear that courts should be very slow in interfering with expert opinion in academic matters. In any event, assessment of the questions by the courts itself to arrive at correct answers is not permissible. The delay in finalization of appointments to public posts is mainly caused due to pendency of cases challenging selections pending in courts for a long period of time. The cascading effect of delay in appointments is the continuance of those appointed on temporary basis and their claims for regularization. The other consequence resulting from delayed appointments to public posts is the serious damage caused to administration due to lack of sufficient personnel.<br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem; text-align: left;\"><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></span></div></span></div>', 'f7d60f4965ac5b38c485a36e42d32620.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-07', 1, '', '', '2020-12-08 01:12:29', '2021-01-08 00:37:54'),
(181, 'OI9XMtEe0aNjwZKJWD0Hwun6q', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'N.I.Act. Gaps are permitted to be filled by the drawee on the cheque so long as it does not cause prejudice to the drawer or amount to material alteration.', '<h4>Negotiable Instruments. Gaps are permitted to be filled by the drawee on the cheque so long as it does not cause prejudice to the drawer or amount to material alteration. Karnataka High Court.</h4><h4><br>K.A. Ananda vs Gangadhara. Criminal Appeal 1191/2011 decided on 3 November 2020.<br><br>Judgment Link:<br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348769/1/CRLA1191-11-03-11-2020.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348769/1/CRLA1191-11-03-11-2020.pdf</a></h4><h4>\r\n<b><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant paragraphs:</b></div></b></h4><h4 style=\"text-align: justify;\">13 &amp; 14. Negotiable Instruments Act are three in numbers- Promissory note, bill of exchange and cheque. The very commencement of the word in the definition states that cheque is a bill of exchange. As a&nbsp; matter of provision of law even certain gaps are permitted to be filled in by the drawee so long it does not cause prejudice to the drawer in the matter of date, amount, signature and related. In this connection any part of alteration that effects the very nature of the cheque would be a material alteration that renders the cheque invalid.</h4><h4><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">15. The plain reading of Section 20 of the Negotiable Instruments Act reveals that the instrument may be either wholly blank or having written thereon an incomplete negotiable instrument. Thus, even if a blank promissory note is given it cannot be taken as a defence to avoid a decree based on such instrument, once it is found that the document produced before the court satisfies the requirements of a promissory note within the meaning of the Act. In this connection I am guided by Judgment of this court in the case of H.Maregowda Vs Thippamma reported in AIR 2000 Kant 169.</span></div></h4><h4><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Appeal allowed. Accused convicted.</span></div></h4><h4><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Compiled by S. Basavaraj, Advocate, Daksha Legal.</span></div></h4>', 'b2f6d9cc9e8c62b9c4a5e7bb8877ef33.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-03', 1, '', '', '2020-12-08 03:18:11', '2021-01-09 23:41:54'),
(182, 'MGN7WOBdzy76SZWUtMpO2nBcZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Permanent Lok Adalats can pass ex-parte award supported by reasons. ', '<h4>Legal Services Authority Act, 1987 does not prohibit Permanent Lok Adalats from passing ex-parte award. However, award must be supported by reasons. Karnataka High Court.</h4><h4><br>The Deputy Commissioner, Mysore District another vs M/s Kushal Enterprises. Writ Petition 2715/2020 and connected matters decided on 3 August 2020.</h4><h4><br>Judgment Link: </h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/337740/1/WP2715-20-03-08-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/337740/1/WP2715-20-03-08-2020.pdf</a></h4><h4><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Relevant paragraphs: <br>11….Permanent Lok Adalat constituted under section 22B(1) of the LSA Act is conferred with both conciliatory and adjudicatory functions; and Permanent Lok Adalat is invested with the power and jurisdiction to pass an award on merits as provided under sub-section (8) of section 22C after observing or following the procedure prescribed under section 22C of the LSA Act. Sub- section (8) of section 22C specifically provides that, “Where the parties fail to reach at an agreement under sub-section (7), the Permanent Lok Adalat shall, if the dispute does not relate to any offence, decide the dispute.”</span></div></h4><h4><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">12. The Act is silent as to whether Permanent Lok Adalat could proceed to decide the dispute ex-parte in the absence of the parties. But a conjoint reading of section 22C and section 22D of the Act which deals with the procedure of Permanent Lok Adalat, makes it evident that while conducting the conciliation proceedings or deciding a dispute on merit under the Act, Permanent Lok Adalat shall be guided by the principles of natural justice, objectivity, fair play, equity and other principles of justice and shall not be bound by the Code of Civil Procedure, 1908 and the Indian Evidence Act, 1872. There is nothing in the amended Chapter VIA to suggest that if any of the parties fail to respond to the notice or fail to participate in the proceedings, Permanent Lok Adalat is disabled to decide the dispute or pronounce the order. The only requirement laid down under section 22D of the amended Act is that while deciding the dispute, Permanent Lok Adalat shall be guided by the principles of natural justice, objectivity, fair play, equity and other principles of justice and nothing more. The Act does not prohibit Permanent Lok Adalat from passing any ex-parte award. If such restriction is read into the Act, it would frustrate the very object of constituting Permanent Lok Adalat, as the respondent in every case who is invariably interested in defeating the claim of the petitioner, may thwart the impending action or decision by Permanent Lok Adalat, by successfully evading service of notice or remaining absent during the conduct of the proceedings. Therefore, the argument of learned counsel for petitioners that Permanent Lok Adalat has no jurisdiction to pass exparte award does not find support from any provisions of the Act or the Rules framed thereunder.</span></div></h4><h4><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">14. …..No doubt the statute does not expressly require Permanent Lok Adalat to give reasons in support of its decision, but having assumed the jurisdiction to adjudicate the disputes touching upon the rights and liabilities of the parties, failure to give reasons would render the decision invalid for the added reason that the appellate or the revisional authority would be deprived of the opportunity to test the correctness or validity of the order passed by Permanent Lok Adalat.</span></div></h4><h4><div style=\"text-align: justify;\"><br></div>Compiled by S.Basavaraj, Advocate, Daksha Legal,</h4>', '4e7217911aa6192fc4f27d18b30be799.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-08-03', 1, '', '', '2020-12-08 03:21:37', '2021-01-09 23:41:20'),
(183, '2GvqDftNmUEH9MqN5LAZ7NKRC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Abetment to commit suicide. Vague death note can not be a prima facie evidence. Accused entitled for bail.', '<h4>Abetment to commit suicide. Vague death note can not be a prima facie evidence. Accused entitled for bail. Karnataka High Court.</h4><h4><br>B.K. Padmanabha Reddy vs State of Karnataka. Criminal Petition 5775/2020 decided on 12 November 2020.</h4><h4><br>Judgment Link: </h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348823/1/CRLP5775-20-12-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348823/1/CRLP5775-20-12-11-2020.pdf</a></h4><h4><br>Relevant portion: Para. 1. The present petition is filed by accused .. under Section 439 of Cr.P.C. praying to release him on bail …for the offences punishable under Section 306 of IPC.</h4><h4><br>5. SPP submits…that the deceased has left a death note by mentioning the name  of the petitioner-accused No.1 and the said death note itself is self-explanatory to show that it is the petitioner- accused No.1 who is responsible for the death of the deceased.</h4><h4><br>7. But when the financial transactions have taken place in the year 2002 and on 28.7.2020 there was some conversation between the petitioner-accused No.1 and  the deceased, the same was not disclosed as to when exactly and at what time the petitioner-accused No.1 told the deceased to die or whatever she wants to do  she could do. In the absence of any specific period, it cannot be inferred that the deceased was not abetted by the petitioner-accused No.1 and because of such abetment said to have been made by the petitioner-accused No.1, the deceased has committed suicide by hanging herself. There is no clarity in mentioning the timings as to when exactly she called the petitioner-accused No.1 and who in turn told her to die. Be that as it may, even it is the specific case of the prosecution  that the deceased has  left a death note. Even though she has not informed the complainant about the factual matrix of the case, while writing the death note, at least she could  have  mentioned as to when exactly and at what time the petitioner-accused No.1 told her to die or whatever she wants to do she could do. In the absence of  any  particular material in the death note, it cannot  be  inferred that it is the petitioner-accused No.1  who  abetted the deceased and because of the same, the deceased has committed suicide. The death note and other aspects which have been intended to be  relied  upon by the prosecution are the matters which have to   be considered and appreciated during the course of trial.</h4><h4><br>Petition allowed.</h4><h4><br>Compiled by S. Basavaraj, Advocate, Daksha Legal.</h4>', 'e5bdb7b5a3c7d6c93d177e5d689c11d1.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-12', 1, '', '', '2020-12-08 03:24:38', '2020-12-20 04:18:41'),
(184, 'FUySn75iq5z2SkxgbByTBY7DV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Anticipatory bail. Issuance of notice of appearance under Section 41A Cr.P.C presupposes absence of threat of arrest. Petition for anticipatory bail hence can not be entertained. Karnataka High Court. 11 November 2020', '<h4>Jerry Paul vs State of Karnataka.<br>Criminal Petition 5963/2020 decided on 11 November 2020.<br>Judgment Link:<br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348806/1/CRLP5963-20-11-11-2020.pdfRelevant parag\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348806/1/CRLP5963-20-11-11-2020.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:&nbsp; 9. On close reading of Section 41A of the Act, it indicates that where the arrest of a person is not required under the provisions of sub-section (1) of Section 41 of Cr.P.C., then the notice could be got issued to the person against whom a reasonable complaint has been made or credible information has been received or suspicion exists for having committed a cognizable offence to appear before him and it also makes it clear that it is the duty of the person to comply the terms of the notice and when the said person complies and continues to comply with notice, he shall not be arrested in respect of the offence referred to in the notice unless for the reasons to be recorded. The police officer is of the opinion that he ought to be arrested and in that regard he has to pass an order.&nbsp; &nbsp;<br>10. On going through the said provision and the records, admittedly a notice has been got issued under Section 41A of Cr.P.C. When once notice has been issued under Section 41A of Cr.P.C., that itself makes it clear that the arrest of the petitioner is not required. Be that as it&nbsp; may. It is the submission of the learned counsel for the petitioner that on 10.09.2020 at about 9.30 p.m. he has been taken to custody and was there till 14.09.2020. In&nbsp; that event, if police wanted to arrest him, definitely they could have done so. Not arresting and issuing notice under Section 41A of Cr.P.C. and sending him, goes to show that in terms of the provisions of Section 41A of Cr.P.C., they do not want to apprehend or arrest the petitioner.<br>11. …there is no apprehension of arrest of the petitioner-accused. Petition for anticipatory bail rejected.Section 41A.&nbsp;<br>(1) Notice of appearance before police officer. The police officer shall in all cases where the arrest of a person is not required under the provisions of sub- section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.<br>2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.<br>(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the&nbsp; notice&nbsp; unless, for reasons to be recorded, the police officer is of&nbsp; the opinion that he ought to&nbsp; be arrested.<br>(4) Where such person, at any time, fails to comply with the terms of&nbsp; the&nbsp; notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by the competent Court in this behalf, arrest him for the offence mentioned in the notice.</h4><div><br></div>', 'c3da5bec390a1546795aa7958e579add.jpg', '17d69bff2d010ef32f0f1ae3118691f1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-11', 1, '', '', '2020-12-08 04:42:41', '2021-06-25 00:44:06');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(185, 'ZAlpaR5aWRtoU3BUNylWzCXVH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Anticipatory bail. Even when there is a prima facie case accused should not be detained only by way of punishment.', '<h4>Anticipatory bail. Even where a prima facie case is established, approach of the Court is not that the accused should be detained by way of punishment, but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour. Absconding of accused is also not a reason to deny bail. Karnataka High Court.</h4><h4><br>Rakesh Shetty vs State of Karnataka and another. Criminal Petition 5445/2020 decided on 18 November 2020.</h4><h4><br>Judgment Link: </h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348785/1/CRLP5445-20-18-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348785/1/CRLP5445-20-18-11-2020.pdf</a></h4><h4><br><b>Relevant Paragraphs: </b>While considering the bail application, the parameters which have to be considered has been stated in  the  case  of  Siddharam  Satlingappa  Mhetre  Vs. State of Maharashtra and others  (cited  supra) have  to be kept in view. Keeping in view the said ratio laid down, on perusal of the factual matrix on hand, it indicates that while commission of the offences which have  been alleged, the complainant has also joined his hands and subsequently he came up with a complaint, that is a matter which has to be considered  and  appreciated during the course of trial. The only consideration which has to be looked into for the purpose of granting or refusing bail is whether the accused would be readily available for trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. If there is no prima facie case, there is no question of considering other circumstances. Even where a prima facie case is established, the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment, but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Bhagirathsinh Judeja Vs. State of Gujarat,  reported  in  1984  AIR(SC) 372.</h4><h4><br>18. In catena of decisions, even in Constitutional Bench law relating to grant of anticipatory bail has been discussed and emphasized that the provisions of anticipatory bail enshrined in Section 438 of Cr.P.C. is conceptualized under Article 21 of the Constitution of  India which relates to personal liberty and it shall  be given a liberal interpretation. This aspect has also been upheld by the Hon’ble Apex Court in the case  of  Bhadresh Bipinbhai Sheth Vs.  State  of  Gujarat  & another. </h4><h4><i><br></i></h4><h4><i>Compiled by S. Basavaraj, Advocate, Daksha Legal. </i></h4><p><br></p><p><br></p><p><br></p>', 'd289f092e4ef86c73c1fed96dd9a3189.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-18', 1, '', '', '2020-12-08 04:47:47', '2020-12-20 04:19:29'),
(186, 'qwKs6TU9E1yPihLFwE66ldlUG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Action of the University punishing student on the basis of a stray admission without hearing is bad.', '<h4>“Even God gave an opportunity of hearing to Adam & Eve before punishing them for consuming the proscribed fruit in the Eden Garden”. Karnataka High Court annuls action of the University in punishing student on the basis of a stray admission without hearing.</h4><h4><br>Hruday P.B. vs The Vice Chancellor, The National Law School University of India and another. Writ Petition 9395/2020 decided on 18 November 2020.</h4><h4><br>Judgment Link: </h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348727/1/WP9395-20-18-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348727/1/WP9395-20-18-11-2020.pdf</a></h4><h4><br>Relevant Paragraphs: 4 (a) The essential grievance of the petitioner emanates from the so called ‘admitted’ charge of plagiarism. Ramanatha Aiyar’s “Advanced Law Lexicon” 3rd Edn, Wadhwa Nagpur states: “Plagiarism: Publishing borrowed thoughts as original; stealing literary matter from the work of another author. The act or an instance of copying or stealing another’s words or ideas and attributing them as ones own”; the learned Lexicographer also mentions about Paul Goldstein’s ‘Copyright’s Highway 12 (1994) which lucidly explains the concept as under: “Plagiarism, which many people commonly think has to do with copyright, is not in fact a legal doctrine. True plagiarism is an ethical, not a legal, offense and is enforceable by academic authorities, not Courts. Plagiarism occurs when someone – a hurried student, a neglectful professor, an unscrupulous writer – falsely claims someone else’s words, whether copyrighted or not, as his own. Of course, if the plagiarized work is protected by copyright, the unauthorized reproduction is also a copyright infringement.”</h4><h4><br>4(c) Plagiarism is a very serious matter that involves ethics and reputation of the student/person concerned; proven plagiarism operates as a hazardous stigma at the campus and the person carrying the same is ordinarily shunned; it may affect his educational and employment opportunities as well; that is the reason, why the respondent-University has taken appreciable pains in meticulously structuring the provision in the extant Regulations so that the innocents are not victimized; however, it has not adhered to the minimum of the  fairness standards enacted therein; ‘more is not necessary to specify and less is insufficient to leave it unsaid’.</h4><h4><br>4(d)The entire episode of so called ‘plagiarism’ is framed on the basis of a few notoriously cryptic mails exchanged between the Course Teacher and the Exam Department, detrimentally keeping the petitioner in darkness;</h4><h4><br>4(f) It has been a long settled position of law that a stray sentence giving the impression of admission of the guilt shall not be interpreted in isolation when the rest of the matter in the representations suggests the contra; one has to gather a holistic impression from reading the entire text and not a few sporadic sentences appearing here & there in a script, whilst considering if what is stated amounts to admission. An acclaimed jurist of yester decades Mr.Rupert Cross in his treatise ‘EVIDENCE’, (3rd Edn. London- Butterworks 1967) at page 433 states: “An admission being any statement … which is adverse to a party’s case, the only conditions of admissibility, when the statement emanates from the party himself concern the capacity in which he is acting and the reception of the entirety of the statement…”; it is more so when one  is dealing with the educational career of young minds like the petitioner herein; loose & lavish wording of the representations, need to be given a due discount; the respondent –University is not justified in seeking shelter under a leaking umbrella of a poor student.</h4><h4><br>4(g) What intrigues this Court is about the enormity of unfair treatment which the petitioner was meted out at the hands of a Law University, in a serious matter like this; it is anguishing that the University did not afford an opportunity of personal hearing despite his written  request in Biblical literature, even God is said to have given an opportunity of hearing to Adam & Eve before punishing them for consuming the proscribed fruit, in the Eden Garden; which heavens would have fallen down, had a reasonable opportunity of personal hearing been afforded, remains as a mystery rapped in enigma; after all, procedural fairness is a constitutional mandate when the answering respondent is an instrumentality of the “State” under Article 12 of the Constitution; it is high time that this University of national repute be reminded that  it is dealing with our children and not others’ chattel.</h4><h4><br>ORDER. In the above circumstances, this writ petition succeeds; a Writ of Certiorari issues quashing the impugned orders at Annexures-H & L1; a Writ of Mandamus issues to the respondent-University to assess and award marks to the petitioner’s Project Work in question; petitioner shall be continued to keep the term by way of carry over/carry forward, disregarding the attendance shortage, if any.</h4><h4><br><i>Compiled by S.Basavaraj, Advocate, Daksha Legal.</i></h4>', 'ec10864edf89134d8361a4a11c85c0a8.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-18', 1, '', '', '2020-12-08 04:55:29', '2020-12-20 04:19:55'),
(187, 'FchTA38UTeybKIbK3M8hfOIwa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for specific performance. Question of readiness and willingness becomes immaterial when the agreement itself is doubtful', '<p><b>Suit for specific performance. Question of readiness and willingness becomes immaterial when the agreement itself is doubtful – Karnataka High Court.</b><br>S.R. Suresh and another vs Rudrappa Kabbur and another. Regular Second Appeal 649/2013 decided on 23 October 2020.<br><b><br>Judgment Link:<br> </b><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348682/1/RFA649-13-23-10-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348682/1/RFA649-13-23-10-2020.pdf</a><br><b><br>Relevant paragraphs:</b> <br><br>19, 20 &amp; 21.…When the defendants have denied the very execution of the agreement, receipt of the sale advance amount and the signatures, it is the burden on the&nbsp; plaintiffs to prove the same and in the absence of proof,&nbsp; the suit filed by the plaintiffs has been rightly dismissed by the Trial Court. Our view is fortified by the dictum of the Hon’ble Apex Court in the case of&nbsp; Thiruvengada Pillai&nbsp; vs. Navaneethamal reported in AIR 2008 SC 1541. Judgment in N.T. Vijayakumar and others vs. The Allahabad Bank, Nehru Road Branch, Shimoga, reported in 1999(2)&nbsp; Kar. L.J. 490, Shivakumar and others vs. Sharanabasappa and others reported in 2020 SCC Online SC 385, relied on.<br><br>22. The plaintiffs have failed to prove the very execution of the document by the defendants and receipt of advance amount of Rs.35.00 lakhs. In the absence of the same, the suit filed by the plaintiffs for the relief of specific performance is not maintainable. Though learned counsel for the appellants contended that the plaintiffs were always ready and willing to perform their part of the contract as&nbsp; contemplated&nbsp; under Section 16(c) of the Specific Relief Act, the same cannot be accepted. Admittedly, the very agreement itself is not proved. Therefore, the question of readiness and willingness would not arise. Appeal dismissed.<br><i><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></i></p>', 'a6e7b22988e8e5188af087bfb6e87d39.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-23', 1, '', '', '2020-12-08 05:03:02', '2021-01-08 00:03:37'),
(188, 'FWxZWSw496rBWGNSyMTFWdCid', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Property dispute. Where boundaries in a document are vague and indefinite the area should prevail. Karnataka High Court ', '<p style=\"text-align: center; \"></p><div style=\"text-align: justify;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; text-align: left; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">H. Naganna and others vs Marlinge Gowda by Lrs and others. Regular Second Appeal 2110/2010 decided on 6 November 2020.</span><br></b></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><b><span style=\"font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%; font-size: 0.875rem;\">19. As early as in the year 1948, the Privy Council in  The Palestine Kupat AM Bank Co-Operative Society Ltd vs Government of Palestine and others reported in AIR 1948 PC 207 observed as follows: –</span><span style=\"font-size: 0.875rem;\"><br></span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>“In construing a grant of land, a description by fixed boundaries is to be preferred to a  conflicting description by area. The statement as to area is to be rejected as falsa demonstratio.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>Same view was taken referring to this decision by  the High Court of Madras in Dharmakanny Nadar siviseshumuthu and others vs Mahalingam Ndar Gopalakrishna Nadar and others reported in AIR 1963 Madras147 and it is reproduced as under:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>“Where the property sold is part of a definite survey number and in the sale deed the exact boundaries of the part sold are given and the area mentioned is only approximate, the description by boundaries should prevail in ascertaining the actual property sold under the document”.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>This Court in Narasimha Shastry vs Mangesha Devrau reported in ILR 1988 Kar 554 has held as under: –</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>“Where the sale deed mentioned the boundaries specifically and clearly to identify the property, the actual extent of the land not being clear, the recitals as to boundaries should prevail.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>It seems to me to be quite clear that what was sold was the whole of the property with definite boundaries and that the measurements were not accurately given, the mistake being in the measurement alone. Therefore, there was no reason for Judges to restrict the ownership to a smaller extent. It is well  established by several decisions  of Courts that where the boundaries in a document are vague and indefinite, the area should prevail, but  where the boundaries are specific and definite, the area must be taken as given only approximately.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>This is, therefore, a clear case of precise and  accurate description in a document of the property sold by its boundaries. The measurement by area should,  therefore, be considered only approximate.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>I, therefore, come to the conclusion that the general principles  laid down by the decisions cited above that the description by boundaries should prevail where the boundaries are exact and where the area is approximate should be applied in this case, ….</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>I repeat that it is not a case where the boundaries in a document are vague and indefinite, so that the area should prevail. It follows therefore, that if the boundaries are specific and definite, the area must be taken as has given only approximate.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>As already observed above, it is well established by several decisions of Courts that where the boundaries in a document are vague and indefinite, the area should  prevail, but where the boundaries are specific and definite, the area must be taken as given approximately. It is perhaps well to observe that if the description of a boundary is ambiguous, otherwise uncertain or in conflict with the occupation, Courts may settle the position of the disputed boundary.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b><br></b></span></div><p></p><p></p>', 'c77c5e335ced73385e302c0be3d58b55.jpeg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-06', 1, '', '', '2020-12-08 05:10:11', '2022-08-05 21:44:36'),
(189, 'M8z8HRwKL7GyHhTxmkwqAUA1e', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Lokayukta Act. Procedure after receipt of report from Lokayukta', '<p><h4>Karnataka Lokayukta Act, 1984. After receipt of report from Lokayukta or Upalokayukta under Section 12(3), it is mandatory for the Government to record reasons to entrust matter to Lokayukta Upalokayutka or disciplinary authority. Doctrine of per incuriam discussed- Karnataka High Court.<br>K.S. Nanjegowda vs State by Karnataka Lokayuktha. Writ Petition 48384/2017 and connected case decided on 12 November 2020.</h4><b><br>Judgment Link:<br> </b><a href=\"https://karnatakajudiciary.kar.nic.in/noticeBoard/wp-48384-2017-cw-61697-2016.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/noticeBoard/wp-48384-2017-cw-61697-2016.pdf</a><br><br></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">31….Section 12(4) of Act, 1984 mandates the competent authority to examine the investigation report submitted on behalf of the Lokayukta/Upalokayukta. On this point Dr.K.Lalitha vs The State of Karnataka and others 2019 (4) KLJ 344 assists the petitioners case. Similarly, Rule 14-A(2)(iii) of Rules, 1957 provides two options to the Government that after due examination of the investigation report of the Upalokayukta under Section 12(3)</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">of Act 1984, Government has to make up its mind as to whether matter is required to be entrusted to the</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Lokayukta/Upalokayukta with reference to Rule 11 of Rules, 1957 or entrusting to disciplinary authority with reference to Rule 12 of Rules, 1957.</span></div> <br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">In such circumstances, it is mandatory for the Government to record reasons as to why the matter is being entrusted to the Lokayukta/Upalokayukta or to disciplinary authority.…It is obligatory on the part of the Government when it is in receipt of investigation report under Section 12(3) of the Act 1984, to reveal the reasons as to why matter is entrusted to Lokayukta/Upalokayuta or disciplinary authority, when option is provided under statute.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Doctrine of per incuriam. Paragraphs 36-40</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Ingredient with the judgment per incuriam as quoted by Sir John Salmond in his ‘Treatise on Jurisprudence’ has aptly stated the circumstances under which a precedent can be treated as per incuriam. It is stated that a precedent is not binding for which it was rendered in ignorance of a statute or a rule having the force of statute or delegated legislation. Mr.Govindrajan in his book called ‘Invoking the doctrine of per incuriam’, states that the Rule applies even though the Court knew of the statutes in question but it did not refer to and had not present to its mind the precise terms of the statute. Similarly, a Court may know all the extension of a statute and yet not appreciate its relevancy to the matter on hand, such a mistake is again per incuriam so as to vitiate the decision. Even the lower Court can impugn a precedent on such grounds.</span></div><i><b><br>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></i><p></p>', 'b607d6b04f7cdd413b82fa88e1861e2a.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-12', 1, '', '', '2020-12-08 05:15:17', '2021-01-07 23:53:35'),
(190, 'vLQUQBcgVeW1pF1noBZqhtSRu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Government officers shall not wait for judicial orders to consider representations of Citizens', '<h4>“Do not wait for judicial pronouncement in each and every matter even to consider representations of Citizens. Government officials owe a duty to consider pending grievances”. </h4><h4>Karnataka High Court lays down guidelines.<br></h4><h4><b>Order in W.P.No.41189/2017 dated 19 March 2</b>020</h4><h4>Pursuant to the order dated 05.03.2020, objections have not been filed in the present petition.<br>Shri Manjunath Prasad, the Principal Secretary,<br>Revenue Department and Shri Vastradmutt, the Law<br>Secretary are present.</h4><h4><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Law Secretary is hereby directed to take necessary steps in issuing general circular to each and every department, wherever representations of the persons are pending consideration. The same shall be considered on war-footing basis. In this regard, a special drive shall be undertaken by each and every department. Since, this Court has come across in number of cases including matter relating to the year 2014 and 2015, wherein it is found that there is inaction on the part of the concerned department/officials either accepting concerned persons representation or rejecting. In other words, duty is cast on the concerned official to discharge his/her duties of the post held by each of the official. If the grievance of the persons is under statute, it is required to be considered</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">within reasonable period of three months. In other words, Officials/Executives shall not expect judicial pronouncement in each and every matter even for consideration of representation/s. They owe duty in considering the grievance of the persons which are pending before the</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">department/officials at the earliest, within a reasonable period of three months. The Execution is one of the key functions of a State. Its role is to implement the laws that have been framed by the Legislature and the policies of a Government with rise of welfare states the need for organized State Functions has also risen and Execution is one of the most crucial functions. In this regard, Law Secretary shall take necessary steps for issuing general circular in consultation with DPAR. Circular must contain ‘How to follow up Court cases’ i.e., from the stage of a copy</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">of Writ Petition/Application etc., received from the High Court and its disposal and filing of further appeal etc, and other forums while maintaining register to undertake review on monthly or once in three months, while fixing responsibility to officers to avoid delay in taking steps like;</span></div><div style=\"text-align: justify;\"><br></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">“How to follow up Court cases.</b></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(a) A copy of writ petition received from the High Court of Karnataka shall be enered in the Register maintained for that purpose.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(b) Delay should be avoided in taking appropriate steps.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(c) If any interim direction (stay) is received without instructions appeal shall be filed against such interim orders.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(d) Advancement petition shall be filed through Law Officer in fit cases. If there is scope for filing Writ Appeal/Revision/ Review the same shall be filed through the O/o the Law Officer.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(e) When the High Court judgment is received the same shall be entered in the register maintained for that purpose.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(f) If the time limit is not specified in the judgment the modification if any shall be completed within two weeks.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(g) If there is scope for filing Writ Appeal against the High Court decision the proposal together with details of remarks, assessment records, appellate orders to the competent officer/authority within 7</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">days of receipt of the appellate order.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(h) The time limit prescribed for filing Writ Appeal before the High Court is to be adhered.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(i) A monthly report as to the implementation of judgments and filing of writ appeal in fit cases shall be submitted to the competent authority.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(j) The time limit prescribed for filing review before Hon’ble High Court is within 30 days and for filing SLP before Hon’ble Supreme Court is 90 days.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(k) If direction of the court is not complied within the time limit prescribed by the Court a noncompliance statement as to the reasons for the delay in complying the direction along with an affidavit to be filed by assessing authority.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(I) SLP shall be filed if aggrieved by the order of High Court where a question of law is involved. Other important follow up actions:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(m) Preparation of statement of facts and filing affidavit is the most important action at the time of any litigation follow up.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(n) At State level in the Web portal under Legal section maintain a repository of important cases/ case laws/ model statement of facts/ detailed affidavits.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(o) Once in a month a work shop at State level to be arranged to discuss legal issues/ cases/ case studies on a fixed day fixed time basis”</span></div></h4><h4><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">In the light of the above observation necessary guide line may be issued, if the above exercise is undertaken timely by the Government, Government can save time and money.</span></div></h4><h4><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The aforesaid action is required for the reasons that in number of cases, where orders were passed in favour of the litigant. If there is delay in implementation, Government/Department have to shell down certain</span><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">amount along with interest. In other words, such money is being paid from the State Exchequer for which tax payer’s money shall not be utilized.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">A copy of this order shall be handed over to the learned State Counsel so as to reach the same to the Law Secretary/Principal Secretary, Revenue Department, to take further action.&nbsp;</span></div></h4><h4 style=\"text-align: justify;\">For compliance report, list on 02.07.2020. In the meanwhile, respondents to file objections in the main petition.</h4><h4><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Personal appearance of the Principal Secretary, Revenue Department and the Law Secretary are dispensed until further orders.</span></div></h4><h4><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">List for further orders on 02.07.2020.</span></div></h4><h4><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(P.B.BAJANTHRI)</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">JUDGE</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">AV/DS</span></div></h4>', 'd1a44928050dc45de190fd0dd56c8884.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-03-19', 1, '', '', '2020-12-08 05:21:10', '2021-01-07 23:38:16'),
(191, 'LMr4NFvJ4mBcPKDIwDIIluKYP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Seniority. Persons promoted in excess of backlog vacancies shall be continued against supernumerary posts', '<h4><b>Service Law. Seniority. Persons promoted in excess of backlog vacancies shall be continued against supernumerary posts in existing cadre till they get the date of eligibility for promotion in that cadre. Karnataka High Court.</b></h4><h4><br>M/s. Karnataka Power Transmission Corporation Limited vs B. Gurumurthy and others. Writ Appeal 448/2020 decided on 13 November 2020. Justice B.V. Nagarathna and Justice N.S. Sanjay Gowda.</h4><h4><b><br>Judgment Link:</b></h4><h4> <a href=\"https://karnatakajudiciary.kar.nic.in/noticeBoard/wa448-2020.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/noticeBoard/wa448-2020.pdf</a></h4><h4><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Judgments referred to:</b><span style=\"font-size: 1.3125rem;\"> Indra Sawhney vs. Union of India [1992 Supp (3) SCC 217], R.K.Sabharwal vs. State of Punjab (1995) 2 SCC 745, Union of India vs. Virpal Singh Chauhan [(1995) 6 SCC 684, Ajit Singh Januja vs. State of Punjab [(1996) 2 SCC 715], Jagdish Lal vs. State of Haryana (1997) 6 SCC 538, Ajit Singh vs. State of Punjab (1999) 7 SCC 209, M.G.Badappanavar vs. State of Karnataka (2001) 2 SCC 666, M.Nagaraj vs. Union of India (2006) 8 SCC 212, B.K.Pavitra vs. Union of India (2017) 4 SCC 620, B.K.Pavitra vs. Union of India ILR 2019 SC 2723.</span></div></h4><h4><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Paragraphs:</b> <br>50. If on preparation of the Seniority List, it is found that SCs and STs have been promoted against reservation and backlog vacancies in excess or contrary to the extent of reservation provided in the Reservation Orders, the same would have to be adjusted and fitted with reference to the roster points in accordance with the Reservation Orders issued from time to time by assigning appropriate dates of eligibility. If, on such exercise being carried out, it is found that persons promoted against reservation or backlog vacancies are in excess or contrary to the extent of reservations provided and they cannot be adjusted and fitted against the roster points, then they shall be continued against supernumerary posts in their existing cadre till they get the date of eligibility for promotion in that cadre.</span></div></h4><h4><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">51. For enabling such an exercise, there must be a roster of the promotions made in order to determine whether there is excess promotion to the SCs and STs and to create supernumerary posts if the necessity arises. The aforesaid exercise must be carried out as early as</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">possible so that there are no further difficulties to be faced with regard to promotions to be made in future in the respective cadres.</span></div></h4><h4><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">52. In M.Nagaraj, the constitution Bench considered at length the concepts of ‘Catch-up rule’ and consequential seniority and as to, whether, the obliteration of the ‘Catch-up rule’ or insertion of the concept of seniority would violate the basic structure of Constitution enshrined in Articles 14, 15 and 16. Noting that the ‘Catchup rule’ was propounded in Virpal Singh, and that both the concept of ‘Catch-up rule’ and consequential seniority are judicially evolved concepts to control the extent of reservation, it was further observed that the Constitution</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(Eighty-first Amendment) Act, 2000 gives in substance legislative assent to the judgment in R.K. Sabharwal. That, once roster point promotion is provided, each point in the roster indicates a post, which, on falling vacant, has to be filled by the particular category of candidate to be</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">appointed against it and any subsequent vacancy has to be filled by that category alone, then the question of clubbing the unfilled vacancies with current vacancies does not arise. Therefore, the replacement theory as enunciated in R.K. Sabharwal was reiterated in M.Nagaraj, both of which</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">are Constitution Bench judgments of the Hon’ble Supreme Court.</span></div></h4><h4><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">55. Therefore, while finalising the Seniority List, if it is found that persons promoted against reservation of backlog vacancies are in excess or contrary to the reservation provided and they cannot be adjusted and</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">fitted against the roster points, then they shall be continued against supernumerary posts in their existing cadre till they get the date of eligibility for promotion in that cadre. Therefore, the Final Seniority List to be issued must bear in mind the aforesaid aspects.</span></div></h4><h4><div style=\"text-align: justify;\"><br></div><i><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></i></h4>', '7c650bcd5e3d67f70a5838dd0d0b91d6.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-13', 1, '', '', '2020-12-08 05:25:24', '2021-01-07 23:26:20'),
(192, 'gtC8Y2v1fKt4rkvOmpRnQnu7f', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Trial. Circumstantial evidence. Principles explained. ', '<h4>Criminal Trial. “A conviction must rest on proof, so strong that Court must be convinced that what it concludes must necessarily has happened and is not reasonably explicable in any other way. When the prosecution has relied upon circumstantial evidence, it has to be proved as if there is no proof, than the offence having occurred other than the accused”. Karnataka High Court.</h4><h4>Prathap vs The State of Karnataka. Criminal Appeal 633/2014 decided on 7 October 2020.<br><br><b>Judgment Link:</b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347395/1/CRLA633-14-07-10-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347395/1/CRLA633-14-07-10-2020.pdf</a><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347395/1/CRLA633-14-07-10-2020.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\"></a><br><div style=\"text-align: left;\"><span style=\"font-size: 1.3125rem; text-align: justify;\"><br><b>Relevant paragraphs:<br></b></span><span style=\"font-size: 1.3125rem; text-align: justify;\">29.. Any documentary evidence by way of an electronic record under the Evidence Act can be proved only in accordance with the procedure prescribed under Section 65-B in the teeth of Section 59 and 65-A. A plain reading of Section 59 of Evidence Act would indicate all facts, except the contents of documents or electronic records can be proved by oral evidence. …An “electronic record” is defined under the Information and Technology Act, 2000.</span></div></h4><h4><p></p></h4><h4><p style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; text-align: left;\">30. The purport of the above provisions is to recognize the secondary evidence in electronic form generated by a computer. Section 65-B starts with a non-obstante clause and where any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer, would be deemed to be a document and admissible in any proceedings, subject to conditions specified under sub-section (2) are satisfied or in other words, they would be admissible in any proceedings without further proof or production of the original as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. The admissibility of such a document i.e., electronic record, which is known as computer output to be admissible in evidence has to satisfy the four conditions prescribed in clauses (a) to (d) of sub-section (2) of Section 65-B of the Evidence Act. It is only the electronic record which is duly produced in terms of Section 65-B of the Evidence Act, then resort can be had to Section 45-A.<br></span><span style=\"font-size: 1.3125rem;\"><br>32. In the instant case, we have already noticed that laptop in which the photographs Exs.P-3 to P-30 were found, was not produced. There is no compliance of Section 65-B of the Evidence Act and the person who is said to have downloaded the photographs from the&nbsp; laptop and had taken the print outs of said photographs has not been examined.</span></p></h4><h4><p style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">36…Under Section 27 of the Evidence Act, only so much of the statement of accused is admissible in evidence as distinctly leading to discovery of the fact. In other words, when a fact has been discovered, consequent to information given by the accused, would be legal evidence and not the rest and it has to be excluded. Section 27 of the Act cannot be again made use of to “re- discover” the discovered fact.<br></span><span style=\"font-size: 1.3125rem; text-align: left;\">Evidence discussed thoroughly. Appeal allowed. Accused acquitted.</span></p></h4><h4><i><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></i></h4>', 'a5bd400b3d60708507db425118e03128.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-07', 1, '', '', '2020-12-08 05:33:58', '2021-01-07 23:18:20'),
(193, 'G5mbj2yklXhjbFTS27Yqqb5Ei', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Anticipatory bail. Principle behind it explained. ', '<p style=\"text-align: center; \"></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>Anticipatory bail does not takeaway power of investigating officer to fully investigate. It prevents ignominy, humiliation and disgrace attached to the arrest. Karnataka High Court</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br><b>Judgment Link:</b></span></div> <div style=\"text-align: justify;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/351465/1/CRLP101414-20-30-11-2020.pdf\" target=\"_blank\" style=\"background-color: rgb(255, 255, 255); font-size: 0.875rem;\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/351465/1/CRLP101414-20-30-11-2020.pdf</a><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/351465/1/CRLP101414-20-30-11-2020.pdf\" target=\"_blank\"><br></a></div><br><b>Relevant paragraphs: </b><br><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">9.…The petitioner has a reasonable apprehension of his arrest by the respondent-police. The petitioner is presently working as Police Inspector in the Police Commissionerate, Hubballi-Dharwad. There are no previous complaints or remarks against him. Petitioner has undertaken to abide by the conditions which may be imposed by this Court. As such, this Court is of the view that the arrest and detention of the petitioner/accused is not warranted and he may be directed to appear before the Investigating Officer/respondent-CBI and co-operate with the investigation of the case.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">10. It is well settled that law of bails dovetails two conflicting interests namely, on the one hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty. As observed by the Hon’ble Apex Court, a great ignominy, humiliation and disgrace is attached to the arrest and it would lead to many serious consequences. Usual anxiety of investigating agency is to ensure that an accused should fully co-operate with them and be available as and when they require him. An order of anticipatory bail does not in anyway, directly or indirectly, takeaway from Investigating Officer his power and right to fully investigate into charge made against an accused. In the instant case when the petitioner has already appeared and co-operated with the respondent, whenever called upon to do so, then custodial interrogation is not warranted. Hence, the relief sought by petitioner/accused can be granted by imposing suitable conditions.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Petition for anticipatory bail allowed.</span></div><b><br>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b><p></p>', '790e0796d98397025315806b3007f4c8.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-08', 1, '', '', '2020-12-09 02:23:32', '2021-01-07 23:10:55'),
(194, 'h7avYvI2HQppSKeGBsDygytrI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Education. Court cannot examine question paper and answers except directing revaluation if rules permit.', '<p style=\"text-align: justify;\"><b>Education. Court cannot examine question paper and answers except directing revaluation if rules permit. Supreme Court.<br></b>Vikesh Kumar Gupta & Anr. vs The State of Rajasthan & Ors. Civil Appeal Nos.3649–3650 of 2020 decided on 7 December 2020. Justice L. NAGESWARA RAO, Justice HEMANT GUPTA, Justice AJAY RASTOGI.</p><p><b>Judgment Link:<br> </b><a href=\"https://main.sci.gov.in/supremecourt/2019/28550/28550_2019_35_1501_24973_Judgement_07-Dec-2020.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/28550/28550_2019_35_1501_24973_Judgement_07-Dec-2020.pdf</a></p><h4><div style=\"text-align: left;\"><p><span style=\"font-size: 1.3125rem;\"><b>HELD:<br></b></span><span style=\"font-size: 1.3125rem; text-align: justify;\"><br>11. Though re-evaluation can be directed if rules permit, this Court has deprecated the practice of reevaluation and scrutiny of the questions by the courts which lack expertise in academic matters. It is not permissible for the High Court to examine the question papers and answer sheets itself, particularly when the Commission has assessed the inter se merit of the </span><span style=\"font-size: 1.3125rem; text-align: justify;\">candidates (Himachal Pradesh Public Service Commission v. Mukesh Thakur & Anr.) Courts have to show deference and consideration to the </span><span style=\"font-size: 1.3125rem; text-align: justify;\">recommendation of the Expert Committee who have the </span><span style=\"font-size: 1.3125rem; text-align: justify;\">expertise to evaluate and make recommendations [SeeBasavaiah (Dr.) v. Dr. H.L. Ramesh & Ors.) Examining the scope of judicial review with regards to reevaluation of answer sheets, this Court in Ran Vijay </span><span style=\"font-size: 1.3125rem; text-align: justify;\">Singh & Ors. v. State of Uttar Pradesh & Ors.</span><span style=\"font-size: 1.3125rem;\"></span></p><p style=\"text-align: left;\"><span style=\"font-size: 1.3125rem;\"><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">12. In view of the above law laid down by this Court, it was not open to the Division Bench to have examined the correctness of the questions and the answer key to come to a conclusion different from that of the Expert Committee in its judgment dated 12.03.2019 held </span><span style=\"font-size: 1.3125rem;\">that court should not re-evaluate or scrutinize the answer sheets of a candidate as it has no expertise the matters and the academic matters are best left to academics.</span></div></span><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"> 13. A perusal of the above judgments would make it clear that courts should be very slow in interfering with expert opinion in academic matters. In any event, assessment of the questions by the courts itself to arrive at correct answers is not permissible. The delay in finalization of appointments to public posts is mainly caused due to pendency of cases challenging selections pending in courts for a long period of time. The cascading effect of delay in appointments is the continuance of those appointed on temporary basis and their claims for regularization. The other consequence resulting from delayed appointments to public posts is the serious damage caused to administration due to lack\r\nof sufficient personnel.</span></div><b style=\"font-size: 1.3125rem;\"><br>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></p></div></h4>', '67108fef3f3e3d3868713b997df30471.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-07', 1, '', '', '2020-12-09 02:26:51', '2021-01-07 23:03:11'),
(195, '0EFrxltQAlkwSBvGaoxOpveRK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'N.I. Act. Interim compensation. Section is not retrospective. Applicable only to offences committed after its insertion', '<p style=\"text-align: left;\"></p><p></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>Negotiable Instruments Act. Section 143A is applicable only to offences committed after its insertion. Section is not retrospective.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>Karnataka High Court.</b></span></div>Sarojamma vs R.Venkataramanaswamy. Criminal Petition 4338/2020 decided on 7 December 2020.<br><p></p><b>Judgment Link:</b><br> <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/351592/1/CRLP4338-20-07-12-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/351592/1/CRLP4338-20-07-12-2020.pdf</a><p></p><p style=\"text-align: left;\"></p><p style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; text-align: justify;\"><b>Relevant Paragraphs:</b><br></span></p><p><span style=\"font-size: 1.3125rem; text-align: justify;\">6. The only question which arises for consideration of this Court in this petition is: “Whether the insertion of Section 143A of the N.I. Act is having a&nbsp; prospective&nbsp; effect or can also be given retrospective effect?\"&nbsp;</span></p><p></p><p><span style=\"font-size: 1.3125rem; text-align: justify;\">7. It is well settled proposition of law that always the substantive law which affects the rights of the parties will have prospective effect unless it has been given a retrospective effect expressly in the statute&nbsp; itself.&nbsp; …..in the case of&nbsp; G.J.Raja Vs. Tejraj Surana 2019&nbsp; SCC OnLine SC 989, the issue&nbsp; came&nbsp; up before&nbsp; the Court directly with regard to interpretation of Section 143A of the N.I. Act and the Hon’ble Apex Court has held that Section 143A of the N.I. Act is having prospective effect in nature and confined to the cases where the offences were committed after the introduction of Section 143A of the N.I. Act. At paragraph-23 of the said decision, it has been observed by the Hon’ble Apex Court as under:-<br></span><i style=\"font-size: 1.3125rem; text-align: justify;\">“23. In our view, the applicability of Section 143A of the Act must, therefore, be held to be prospective in nature and confined to cases where offences were committed after the introduction of Section 143A, in order to force an accused to pay such interim&nbsp; compensation.\"</i></p><p></p><span style=\"font-size: 1.3125rem; text-align: justify;\"><i style=\"\">When the Hon’ble Apex Court has&nbsp; interpreted and laid down the ratio holding that Section 143A of the N.I. Act is to be prospective in operation and is made applicable only in the cases where the offence under Section 138 of the Act was committed after insertion of Section 143A in the statute.</i></span><p></p><h5><b><br>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h5><p></p><p></p>', '538e405e93b3072a8bc8cb13165c55da.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-07', 1, '', '', '2020-12-09 03:02:44', '2021-01-07 22:28:40');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(196, 'BMJmTFQUcu5nG9XW8XuNZIL81', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Execution proceedings. Death of decree holder after the decree. Conflicting claims by legal representatives can be adjudicated by the executing Court. Supreme Court. ', '<h3 style=\"text-align: justify;\"><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif); text-align: left;\">Varadarajan vs Kanakavalli and others.</span><br></h3><h4>Civil Appeal 5673/2009, decided on 22 October 2020. Reported in AIR 2020 SC 740</h4><h4>L. Nageswara Rao and Justice Hemant Gupta&nbsp;<b style=\"\"><br>Judgment Link: </b></h4><h4><a href=\"https://main.sci.gov.in/supremecourt/2008/7407/7407_2008_7_1501_19791_Judgement_22-Jan-2020.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2008/7407/7407_2008_7_1501_19791_Judgement_22-Jan-2020.pdf</a></h4><h4><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span>6. The High Court held that the Executing Court is the competent and\r\nproper Court to determine the validity of the Will as well as the\r\nlegatee under a Will can be construed as a legal representative and\r\ncome on record to seek execution of the decree. However, the\r\nHigh Court found that the execution of the Will was surrounded by\r\nsuspicious circumstances. It may be noticed that the High Court in\r\nrevisional jurisdiction has interfered with the findings of fact\r\nrecorded by the Executing Court in respect of execution of Will\r\narrived at after considering the evidence led by the parties. The&nbsp;High Court found that as per the appellant, the decree holder,\r\nUmadevi, was driven out of her house by her step son Munisamy\r\nNaicker and was staying with her sister for nearly 20 years but the\r\nexecution of the Will at the last moment is a suspicious\r\ncircumstance.</div><div style=\"text-align: justify;\"> 7. We find that the order of the High Court is not sustainable in law.\r\nThe appellant claims to be the legal representative of Umadevi on\r\nthe basis of the Will executed by her. He has produced an attesting\r\nwitness and the scribe of the Will. The witnesses have deposed the\r\nexecution of the Will by Umadevi in favour of the appellant who is\r\nthe son of her sister. No one else has come forward to seek\r\nexecution of decree as the legal representative of the deceased\r\ndecree holder. It is Umadevi who has filed the execution petition\r\nbut after her death, the appellant has filed an application to\r\ncontinue with the execution. In the absence of any rival claimant\r\nclaiming to be the legal representative of the deceased decree&nbsp;holder, the High Court was not justified in setting aside the order of\r\nthe Executing Court, when in terms of Order XXII Rule 5 of the\r\nCode, the jurisdiction to determine who is a legal heir is summary\r\nin nature.<span style=\"font-size: 1.3125rem;\"><br>8. We may state that Order XXII of the Code is applicable to the pending proceedings in a suit. But the conflicting claims of legal representatives can be decided in execution proceedings in view of the principles of Rule 5 of Order XXII.</span></div></h4><p><br></p>', '5892a2a7b1d2a10068284a168d5b6b28.jpeg', '880a1b813901a28dbe8a5d30598cb349.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-22', 1, '', '', '2020-12-09 03:51:54', '2021-08-06 01:42:34'),
(197, 'wMXteFVhIMyg4tzrOnmiwXpsq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Wills. Proof. Authoritative judgment of the Supreme Court H. Venkatachala Iyengar v B.N. Thimmajamma', '<h3 style=\"text-align: center; \"><b>Wills. Proof. One of the earliest and authoritative judgments of the Supreme Court in H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426 AIR 1959 SC 443.</b></h3><h4><div style=\"text-align: center;\"><br></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">Relevant Paragraphs:</span><span style=\"font-size: 1.3125rem;\">&nbsp;</span></b><span style=\"font-weight: 500; background-color: rgb(255, 255, 255); font-size: 1.3125rem;\"> <br><br>18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression “a person of sound mind” in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br>19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder’s case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator’s mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator’s free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word “conscience” in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson1 “where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth”. It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">23. It is in the light of these general considerations that we must decide whether the appellant is justified in contending that the finding of the High Court against him on the question of the valid execution of the will is justified or not. It may be conceded in favour of the appellant that his allegation that Lakshmamma has put her signatures on the will at five places is proved; that no doubt is a point in his favour. It may also be taken as proved that Respondent 1 has failed to prove that Lakshmamma was unconscious at the time when the will is alleged to have been executed. It is true she was an old woman of 64 years and had been ailing for some time before the will was executed. She was not able to get up and leave the bed. In fact she could sit up in bed with some difficulty and was so weak that she had to pass stools in bed. However, the appellant is entitled to argue that, on the evidence, the sound and disposing state of mind of Lakshmamma is proved. Mr Iyengar, for the appellant, has strongly urged before us that, since these facts are established, the court must presume the valid execution of the will and in support of his contention he has invited our attention to the relevant statements on the point in the text books dealing with the subject. Jarman on Wills2 says that “the general rule is ‘that the onus probandi lies in every case upon the party propounding a will and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator’”. He adds that, “if a will is rational on the face of it, and appears to be duly executed, it is presumed, in the absence of evidence to the contrary, to be valid”. Similarly, Williams on Executors and Administrators3 has observed that, “generally speaking, where there is proof of signature, everything else is implied till the contrary is proved; and evidence of the will having been read over to the testator or of instructions having been given is not necessary”. On the other hand, Mr Viswanatha Sastri, for Respondent 1, contends that the statements on which the appellant has relied refer to wills which are free from any suspicions and they cannot be invoked where the execution of the will is surrounded by suspicious circumstances. In this connection, it may be pertinent to point out that, in the same text books, we find another rule specifically mentioned. “Although the rule of Roman Law”, it is observed in Williams, “that ‘Qui se scripsit haeredem’ could take no benefit under a will does not prevail in the law of England, yet, where the person who prepares the instrument, or conducts its execution, is himself benefited by its dispositions, that is a circumstance which ought generally to excite the suspicion of the court, and calls on it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce, unless the suspicion is removed, and it is judicially satisfied that the paper does express the true will of the deceased”4.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">29. According to the decisions in Fulton v. Andrew5 “those who take a benefit under a will, and have been instrumental in preparing or obtaining it, have thrown upon them the onus of showing the righteousness of the transaction”. “There is however no unyielding rule of law (especially where the ingredient of fraud enters into the case) that, when it has been proved that a testator, competent in mind, has had a will read over to him, and has thereupon executed it, all further enquiry is shut out”. In this case, the Lord Chancellor, Lord Cairns, has cited with approval the well-known observations of Baron Parke in the case of Barry v. Butlin6. The two rules of law set out by Baron Parke are: “first, that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator”; “the second is, that, if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court and calls upon it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased”. It is hardly necessary to add that the statement of these two rules has now attained the status of a classic on the subject and it is cited by all text books on wills. The will propounded in this case was directed to be tried at the Assizes by the Court of Probate. It was tried on six issues. The first four issues referred to the sound and disposing state of the testator’s mind and the fifth to his knowledge and approval of the contents of the will. The sixth was whether the testator knew and approved of the residuary clause; and by this last clause the propounders of the will were made the residuary legatees and were appointed executors. Evidence was led at the trial and the Judge asked the opinion of the jurors on every one of the issues. The jurors found in favour of the propounders on the first five issues and in favour of the opponents on the sixth. It appears that no leave to set aside the verdict and enter judgment for the propounders notwithstanding the verdict on the sixth issue was reserved; but when the case came before the Court of Probate a rule was obtained to set aside the verdict generally and have a new trial or to set aside the verdict on the sixth issue for misdirection. It was in dealing with the merits of the finding on the sixth issue that the true legal position came to be considered by the House of Lords. The result of the decision was that the rule obtained for a new trial was discharged, the order of the Court of Probate of the whole will was reversed and the matter was remitted to the Court of Probate to do what was right with regard to the qualified probate of the will.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">30. The same principle was emphasized by the Privy Council in Vellasawmy Servai v. Sivaraman Servai7 where it was held that, where a will is propounded by the chief beneficiary under it, who has taken a leading part in giving instructions for its preparation and in procuring its execution, probate should not be granted unless the evidence removes suspicion and clearly proves that the testator approved the will.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">31. In Sarat Kumari Bibi v. Sakhi Chand8 the Privy Council made it clear that “the principle which requires the propounder to remove suspicions from the mind of the Court is not confined only to cases where the propounder takes part in the execution of the will and receives benefit under it. There may be other suspicious circumstances attending on the execution of the will and even in such cases it is the duty of the propounder to remove all clouds and satisfy the conscience of the court that the instrument propounded is the last will of the testator”. This view is supported by the observations made by Lindley and Davey, L. JJ., in Tyrrell v. Painton9. “The rule in Barry v. Butlin6, Fulton v. Andrew5 and Brown v. Fisher10, said Lindley, L.J., “is not in my mind confined to the single case in which the will is prepared by or on the instructions of the person taking large benefits under it but extends to all cases in which circumstances exist which excite the suspicions of the court”.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">32. In Rash Mohini Dasi v. Umesh Chunder Biswas11 it appeared that though the will was fairly simple and not very long the making of it was from first to last the doing of Khetter, the manager and trusted adviser of the alleged testator. No previous or independent intention of making a will was shown and the evidence that the testator understood the business in which his adviser engaged him was not sufficient to justify the grant of probate. In this case the application for probate made by the widow of Mohim Chunder Biswas was opposed on the ground that the testator was not in a sound and disposing state of mind at the material time and he could not have understood the nature and effect of its contents. The will had been admitted to the probate by the District Judge but the High Court had reversed the said order. In confirming the view of the High Court the Privy Council made the observations to which we have just referred.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">33. The case of Shama Charn Kundu v. Khettromoni Dasi12 on the other hand, was the case of a will the execution of which was held to be not surrounded by any suspicious circumstances. Shama Charn, the propounder of the will, claimed to be the adopted son of the testator. He and three others were appointed executors of the will. The testator left no natural son but two daughters and his widow. By his will the adopted son obtained substantial benefit. The probate of the will with the exception of the last paragraph was granted to Shama Charn by the trial Judge; but, on appeal the application for probate was dismissed by the High Court on the ground that the suspicions attending on the execution of the will had not been satisfactorily removed by Shama Charn. The matter was then taken before the Privy Council; and Their Lordships held that, since the adoption of Shama Charn was proved, the fact that he took part in the execution of the will and obtained benefit under it cannot be regarded as a suspicious circumstance so as to attract the rule laid down by Lindley, L.J., in Tyrrell v. Painton9. In Bai Gungabai v. Bhugwandas Valji13 the Privy Council had to deal with a will which was admitted to probate by the first court, but on appeal the order was varied by excluding therefrom certain passages which referred to the deed-poll executed on the same day by the testator and to the remuneration of the solicitor who prepared the will and was appointed an executor and trustee thereof. The Privy Council held that “the onus was on the solicitor to satisfy the court that the passages omitted expressed the true will of the deceased and that the court should be diligent and zealous in examining the evidence in its support, but that on a consideration of the whole of the evidence (as to which no rule of law prescribed the particular kind required) and of the circumstances of the case the onus was discharged”. In dealing with the question as to whether the testator was aware that the passages excluded by the appeal court from the probate formed part of the instrument, the Privy Council examined the evidence bearing on the point and the probabilities. In conclusion Their Lordships differed from the view of the appeal court that there had been a complete failure of the proof that the deed-poll correctly represented the intentions of the testator or that he understood or approved of its contents and so they thought that there were no grounds for excluding from the probate the passages in the will which referred to that deed. They, however, observed that it would no doubt have been more prudent and business-like to have obtained the services of some independent witnesses who might have been trusted to see that the testator fully understood what he was doing and to have secured independent evidence that clause 26 in particular was called to the testator’s attention. Even so, Their Lordships expressly added that in coming to the conclusion which they had done they must not be understood as throwing the slightest doubt on the principles laid down in Fulton v. Andrew5 and other similar cases referred to in the argument.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">34. In Perera v. Perera14 it was held that when the testator is of sound mind when he gives instructions for a will but at the time of signature accepts the instrument drawn in pursuance thereof without being able to follow its provisions, he must be deemed to be of sound mind when it is executed. The will of Perera with which the court was concerned in this case was signed with a cross by the testator in the presence of five witnesses present at the same time who duly subscribed the will in the presence of the testator. The Notary Public was also among the persons present but he did not attest the will. No objection was taken in the court of first instance on this ground, but, in the Court of appeal, the said objection was raised and it was held that the will was invalid on the ground that though the Notary Public was present he had not attested the instrument. The case was then taken to the Supreme Court in its collective capacity on review preparatory to an appeal to Her Majesty. The Supreme Court reversed the judgment under appeal and then proceeded to determine the case on the merits. The Court held by a majority decision that the testator was of sound and disposing state of mind and restored the order of the Primary Judge. Against this decision there was an appeal. In this case, the evidence about the instructions given by the testator was very clear; and there was not the slightest reason for disbelieving the statement of Gooneratne that he had drawn the will faithfully in accordance with the details of instructions given to him. The will prepared from the said instructions seemed to be fair and just disposition of the testator’s property. There was no concealment about the preparation of the will. The instructions were given on June 1 and it was in the evening of June 4 that the will was brought to the testator for execution. It is on these facts that it was held, following the observations of Sir James Hannen in Parker v. Felgate15 that if a person has given instructions to a solicitor to make a will and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will if executed by the testator is that he should be able to think thus far: “If I gave my solicitor instructions to prepare a will making certain dispositions about my property I have no doubt that he has given effect to my intention and I accept the document which is put before me as carrying it out”. We would again like to emphasize that the evidence about the instructions was very clear and definite in this case and it was also clearly established that the will which was just and fair was executed faithfully in accordance with the said instructions given by the testator. In such a case whether or not the will should be admitted to probate would depend upon the opinion which the court may form about the relevant evidence adduced in support of the will. It would be difficult to deduce any principle from this decision and to seek to apply it to other cases without reference to their facts.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">35. The last case to which reference must be made is the decision of the Privy Council in Harmes v. Hinkson1. It appears that, in this case, the testator George Harmes died in the city of Regina on April 4, 1941. Two days later Mr Hinkson brought to the manager of the Canada Permanent Trust Company at its office in Regina a document which purported to be the will of the said Harmes. It was dated April 3, 1941, and named the Trust Company as executor. Under the will Mr Hinkson by a devise and bequest of the residue was to benefit to a sum of more than £ 50,000. Mr Hinkson was by profession a barrister and solicitor and had drawn the will with no witness present until after the body of the document was complete. Then two nurses were called in to witness its due execution. The learned Judge of the Surrogate Court, after a lengthy trial affirmed the will and decreed probate in solemn form. On appeal, by a majority decision the order of the trial court was reversed. Then there was a further appeal to the Supreme Court of Canada. It was heard by five learned Judges. By a majority (Hudson, J., alone dissenting) the appeal was allowed and the decree of the Surrogate Court was restored. Against this decision the appellant obtained special leave to appeal to His Majesty-in-Council and it was urged on his behalf that, since the document was charged with suspicion from the outset, probate should not have been granted to the respondent Hinkson. The Privy Council did not accept this contention and dismissed the appeal. It was in dealing with the appellant’s contention about the suspicions surrounding the execution of the will that Lord Du Parcq made the observations which we have already quoted. Prima facie the facts on which the appellant relied were strong enough; but the question which according to Their Lordships fell to be decided in the appeal was whether the learned trial Judge’s decision on the facts was erroneous and so manifestly erroneous that an appellate court ought to set it aside. Their Lordships then referred with approval to the principles which had been frequently enunciated as to the respect which the appellate court ought to pay to the opinion which a Judge who has watched and listened to the witness has formed as to their credibility (Powell v. Streatham Manor Nursing Home16. Their Lordships then briefly referred to the evidence led in the case and observed that it was impossible for them judging only from the printed page to decide between the various opinions of Mr Hinkson’s character which its perusal may leave open for acceptance by different minds. In the result they came to the conclusion in agreement with the Supreme Court that the trial court’s decision on the facts must stand. It would thus be noticed that the decision of the Privy Council proceeded more on the basis that there was no justification for interfering with a finding of fact recorded by the trial Judge particularly when the said finding rested on his appreciation of the evidence given by several witnesses before him. In this connection it is significant to note that the allegation of the appellant that Mr Hinkson had exercised undue influence on the testator was repelled by the Privy Council with the observation that their acceptance of the Judge’s findings of fact leaves them no alternative but to reject it. Thus this decision merely serves to illustrate the importance which the Privy Council attached to the finding of fact recorded by the trial court in this case.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">39. In this connection we would like to add that the learned trial Judge appears to have misdirected himself in law inasmuch as he thought that the proof of the signature of the testatrix on the will raised a presumption that the will had been executed by her. In support of this view the learned Judge has referred to the decision of the Calcutta High Court in Surendra Nath Chatterji v. Jahnavi Charn Mukerji17. In this case no doubt the Calcutta High Court has held that on the proof of the signature of the deceased or his acknowledgment that he has signed the will he will be presumed to have known the provisions of the instrument he has signed; but Mr Justice B.B. Ghose, in his judgment, has also added that the said presumption is liable to be rebutted by proof of suspicious circumstances and that undoubtedly is the true legal position. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated. That inevitably would be a question of fact in each case. Unfortunately the learned trial Judge did not properly assess the effect of suspicious circumstances in the present case to which we have already referred and that has introduced a serious infirmity in his final conclusion. Incidentally we may also refer to the fact that the appellant obtained a power of attorney from the testatrix on the same day; and that has given rise to the argument that the appellant was keen on taking possession and management of the properties under his control even before the death of the testatrix. There is also another circumstance which may be mentioned and that is that the Sub-Registrar, in whose presence the document was registered on the same day, has not been examined though he was alive at the date of the trial. On these facts then we are inclined to hold that the High Court was justified in reversing the finding of the trial court on the question of the due and valid execution of the will.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">1&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; (1946) 50 CWN 895</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">2&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; Jarman on Wills— Vol. I, 8th Edn., p. 50</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">3&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; Williams on Executors and Administors— Vol. I, 13th Edn., p. 92</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">4&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; Williams on Executors and Administrators, Vol. I, 13th Edn., p. 93</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">5&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; (1875) LR 7 HL 448</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">6&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; (1838) 2 Moo PC 480, 482</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">7&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; (1929) LR 57 IA 96</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">8&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; (1928) LR 56 IA 62</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">9&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; (1894) P 151, 157, 159</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">10&nbsp; &nbsp; &nbsp; &nbsp;(1890) 63 LT 465</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">11&nbsp; &nbsp; &nbsp; &nbsp;(1898) LR 25 IA 109</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">12&nbsp; &nbsp; &nbsp; &nbsp;(1899) ILR 27 Cal 522</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">13&nbsp; &nbsp; &nbsp; &nbsp;(1905) ILR 29 Bom 530</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">14&nbsp; &nbsp; &nbsp; &nbsp;(1901) AC 354</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">15&nbsp; &nbsp; &nbsp; &nbsp;(1883) 8 PD 171</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">16&nbsp; &nbsp; &nbsp; &nbsp;(1935) AC 243</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">17&nbsp; &nbsp; &nbsp; &nbsp;(1928) ILR 56 Cal 390</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\"><i>Compiled by S. Basavaraj, Advocate, Daksha Legal.</i></span>\r\n\r\n</b><br class=\"Apple-interchange-newline\"></div></h4>', 'c489cba4ed6f22ce68331d148f5620a1.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-08', 1, '', '', '2020-12-09 04:02:49', '2021-01-07 22:16:45'),
(2557, 'M65tC954EcnNizIP7tOmUVsdC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Municipalities Act. Deputy Commissioner in exercise of powers under Section 306 cannot act as an appellate authority and decide validity of the resolution passed by the Municipal Council. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kotigeri Masjid Panchara Committee and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 65576 of 2009 decided on 15 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The facts leading to filing of this writ petition\r\nare that, in the Property Register maintained by the\r\n4\r\nth respondent, the name of Kotigeri Masjid had been\r\nentered in the records as “owner”. However, in the year\r\n1977-1978, this entry in favour of Kotigeri Masjid was\r\nstruck out and the name of Government was entered.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. A dispute also arose between the Kotigeri\r\nMasjid and Devotees of Grama Devate, which ultimately\r\nled to a compromise and the execution of a registered\r\nCompromise deed on 19.10.1989.Thereafter, on the basis\r\nof this registered Compromise deed and the registration of\r\nthe properties as Wakf by the Wakf Board on 04.10.1977,\r\nthe name of the Kotigeri Masjid was entered in the\r\nMunicipal records on the basis of a resolution passed on\r\n03.08.1991. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">7. However, after a period of 17 years, in the year\r\n2008, a few people claiming to be the Devotees of Sri\r\nGrama Devate proceeded to prefer an appeal to the\r\nAssistant Commissioner under Sections 305 and 306 of the\r\nKarnataka Municipalities Act, 1964 (for short, ‘the Act’).\r\nThis appeal was filed challenging the resolution dated </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">03.08.1991. Thus, after a period of 17 years, an appeal\r\ncame to be filed challenging the resolution of the\r\nMunicipality, by which, the name of Masjid was ordered to\r\nbe restored in the Municipal records by deleting the name\r\nof the Government.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. From the facts narrated above, the basic issue\r\nthat is required to be decided in this writ petition is as to\r\nwhether the Deputy Commissioner had jurisdiction under\r\nSection 306 of the Karnataka Municipalities Act to set\r\naside a resolution which had been passed in 1991 and that\r\ntoo after 17 years.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. Thus, essentially the Deputy Commissioner is\r\nconferred the power, in an exigent situation, to suspend\r\nthe operation of any order or resolution or the execution of\r\nany work, if he believes that the order is likely to be\r\nagainst public interest. The suspension of the resolution or\r\nthe order by the Deputy Commissioner is however\r\ndeliberately not made permanent. This is obviously\r\nbecause the statute did not entitle or even intend the\r\nDeputy Commissioner to sit in appeal over the decision of\r\nthe Municipality. In fact, if the Deputy Commissioner is\r\nheld to have the power to determine the validity of the\r\ndecision of the Municipality, it would mean that he could\r\nannul or overturn the very decision of the Municipality,\r\nwhich is an elected local government.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. However, in the instant case, the Deputy\r\nCommissioner has basically proceeded to decide the\r\nvalidity of a resolution that has been passed and has, in\r\nfact, proceeded to set aside the resolution and directed the\r\nname of Government to be entered in the revenue\r\nrecords. The Deputy Commissioner has basically acted as\r\nan appellate authority and decided the validity of the\r\nresolution passed by the Municipal Council. It is therefore\r\nclear that the order of the Deputy Commissioner is one, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which is illegal and totally without jurisdiction and the\r\nquestion is answered accordingly.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. It is thus obvious that the appellants did not\r\npossess the locus standi to question the resolution passed\r\nby the municipality. It is to be stated here that the\r\nappellants could not have contended that the property\r\nbelonged to the Government, when the Government itself\r\ndid not challenge the resolution for 17 years. If the\r\nGovernment had any grievance about the entry in the\r\nmunicipality records, it ought to have challenged the\r\nresolution within a reasonable period.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>35. As noticed by the Municipality, the name of the\r\nMasjid had been struck out and the name of the\r\nGovernment had been entered in the records without there\r\nbeing any lawful basis. Since the Government had never\r\nmade a claim that the property in question was the\r\nproperty of the Government, the Deputy Commissioner\r\ncould not have come to the conclusion that the property\r\nbelonged to the Government.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36. As far as the contention that in the year 1931,\r\nthere was a decision taken by the Assistant Collector that\r\nthe property belonged to the Government, is concerned. It\r\nis to be stated here that there was absolutely no material\r\nto show that the entries in the Municipal record stood in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the name of the Government for any period upto 1979. If\r\nthe entries in the Municipal records were never standing in\r\nthe name of the Government from 1931 to 1979, i.e., for\r\nover 68 years and was only inserted in 1979 and that too\r\nwithout any basis, it is clear that the Government had\r\nnever claimed that the property belonged to it. In this\r\nview of the matter the order passed by the Deputy\r\nCommissioner, is wholly illegal and cannot be sustained.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>37. As a result, the writ petition is allowed and the\r\norder of the Deputy Commissioner is quashed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'bc29568656d8fc03cacc6d20e6cdd86d.JPG', 'b21034fa2918d548b216ac7adfee710d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-12', 1, '', '', '2023-01-11 15:33:24', '2023-01-12 06:37:48');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2556, 'IYZyUTxTkrz6vQKoHzAM8m3Qi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Passport Act. Mere pendency of criminal case not a ground to refuse renewal of passport to return to India. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Krishna Chiranjeevi Rao Palukuri Venkata Vs The Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 9141 of 2020 decided on 1 October 2020.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. As per Section 6 of the Passport Act, 1967, the Passport Authority shall refuse to make an endorsement for visiting any country under Clause (b) or (c) of Sub-Section 2 of Section 6 of the said Act on any or more of the grounds mentioned in Section 6 of the Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.A reading of Section 6(2)(f) of the Passport Act indicates that, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country, if a criminal proceeding is pending against&nbsp; the applicant&nbsp; in&nbsp; India . However, the said provision does not provide for refusing to issue a passport for a person who intends to travel back to India . Hence, reading of this provision clearly indicates that it is applicable only for issuing a fresh passport and not for renewal of passport and this view is fortified by the decision of the Delhi High Court rendered in the case of Ashok Khanna –vs- Central Bureau of Investigation (265 (2019) DLT 614). Delhi High Court while interpreting Section 6 of the Passport Act, 1967 has held that the Passport Authority can refuse to issue passport or an endorsement for visiting any country but nowhere in the provision it is mentioned that even for renewal of passport, the Authority can refuse to renew the passport.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 13. In the instant case, petitioner is seeking for renewal for his passport, therefore, said request cannot be rejected by taking shelter under Section 6(2)(f) of the Act and Notification bearing No.G.S.R 570 (E) dated 25.8.1993 issued by the Ministry External Affairs, Government of India. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. The Apex Court in the case of Satwant Singh Sawhney supra, has held that under Article 21 of the Constitution of India, no person can be deprived of his right to travel except according to procedure established by law. Hence,&nbsp; Petitioner’s&nbsp; right&nbsp; to&nbsp; travel&nbsp; cannot&nbsp; be&nbsp; curtailed&nbsp; on&nbsp; the pretext that a criminal case is pending against him by refusing to renew his passport. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. The Apex Court in the case Suresh Nanda&nbsp; –vs-&nbsp; CBI supra has held that despite criminal case filed against the petitioner therein he was entitled to hold the passport since the passport had not been impounded&nbsp; in&nbsp; accordance&nbsp; with law. Hence, merely because a criminal case is pending against the Petitioner, he&nbsp; cannot be&nbsp; disqualified from holding a passport, when admittedly his passport has not been impounded under Section 10(3) of the Passport Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 19. For the aforesaid discussion , I am of the view that the Petitioner is entitled for renewal of his passport for a limited period subject to certain terms and conditions.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8e844b89609bd5c0df93822849fd19f2.jpeg', '0d63d4a2a10a4ba613f5ceb248c696f8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-11', 1, '', '', '2023-01-11 15:12:44', '2023-01-11 15:12:44'),
(199, '2CgoAsgyYPhN53d55GJ6XIrfQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Abandonment of acquisition proceedings. Purchaser can challenge proceedings under KIAD Act. ', '<h3 style=\"text-align: center; \"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1.53125rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">K.P. Ravikumar vs The State of Karnataka and others. Writ Petition 9300/2020 decided on 28 September 2020.</span></b></h3><h4></h4><h4><b><br></b><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>5. Learned counsel appearing for the petitioner submits that even though land was notified for acquisition in the year 1999, it has not been followed by issuance of final notification under Section 28(3) of ‘the Act’, 1966 till date. The impugned preliminary notification has lapsed by operation of law since the final notification which should have been issued within a reasonable time has not been issued till date.</b></span></div></h4><h4><div style=\"text-align: justify;\"><b><br></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>10….The final notification will have to be issued within reasonable time, if period of limitation is not prescribed under the KIAD Act. In the instant case, even after a lapse of twenty years, final notification has not been issued. The decisions rendered in the case of M.N.Shivanna and Others supra and W.A.No.2402/2014 are squarely applicable to the case on hand. The impugned preliminary notification as such has lapsed by operation of law since the Respondents have abandoned the land from acquisition.</b></span></div></h4><h4><div style=\"text-align: justify;\"><b><br></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>11. On the question of maintainability of the writ petition, learned counsel for KIADB has relied upon the decision of the Apex Court in the case SHIV KUMAR &amp; ANOTHER (2019) 10 SCC 229…..The view taken by the Apex Court was taken in the context of Section 11(3) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 which is akin to Section of 4 of Land Acquisition Act, 1894 . The said provision contains a prohibition that no person shall cause any transaction of land or create any encumbrance on the land specified in the preliminary notification without the prior permission of the competent authority.</b></span></div></h4><h4><div style=\"text-align: justify;\"><b><br></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>12. ..Under the KIAD Act, there is no restriction for alienating the land specified in the preliminary notification. The Karnataka Land (Restriction on Transfer) Act, 1991 which imposes restriction on transfer of lands applies only to Bangalore Development Act, 1976 and Karnataka Urban Development Act, 1987. Even assuming that the act is applicable to the proposed acquisition under KIAD Act, it is only after publication of declaration under Section 28(3) of the Act, the land specified in said final declaration cannot be transferred without the permission from the competent authority. Further, there cannot be an indefinite embargo on the owner of the land to alienate his land.</b></span></div></h4><h4><div style=\"text-align: justify;\"><b><br></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Preliminary notification quashed.</b></span></div></h4>', '661bb5ee48b58efd5a2e4ea6c7eb8d29.jpeg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-09-28', 1, '', '', '2020-12-09 04:14:09', '2022-08-05 14:04:08'),
(2040, 'vPZub6Too0AvAiDc5t8eMkfhO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Compensation towards tortious acts of State entities. Concurrent remedy no bar to exercise writ jurisdiction. Karnataka High Court awards compensation of Rs. 1.19 Crore for death and injury due to electrocution. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rekha N. Subramanya Vs Karnataka Power Transmission Corporation Limited<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 1383 of 2020 decided on 4 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Sunil Dutt Yadav.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(vi)<span style=\"white-space:pre\">	</span>It is also submitted that pursuant to the order of the KSCPCR, matter was referred to the Government for necessary decision (order dated 30.08.2019 in W.P.No.26329/2018) on the recommendation of the Commission and the Government has ordered payment of Rs.5,00,000/- towards rehabilitation and treatment of the child, which is also a ground for relegation of the petitioner for the claim of further compensation before the Civil Court.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>a) Contentions of Petitioner<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(i) The petitioner had contended that respondent no.1 - KPTCL was to be held responsible in light of the report of the Electrical Inspector who has observed that there has been lapse on part of KPTCL in maintenance of \'power braker\' attached to the 11 KV Feeder Line, which did not trip, cutting off the power supply. It is submitted that the Electrical Inspector had concluded that there was violation of Regulation 45 (2). <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>7. There are instances also where the State Entities commit torts giving rise to claims for compensation which is sought to be asserted by way of a Writ Petition. Liability for torts committed by the agents of the State being an accepted  principle,  question  whether  a  litigant  is  to  be driven to avail of the remedy before the Civil Court is not a necessity. Once the liability of the State Entity is established as in the present case in light of discussion, by virtue of principle of absolute liability the quantification is also an aspect that has been made by the courts even in exercise of writ jurisdiction by resort to settled principles to monetarily quantify loss of life or injury to a person as is applied in motor vehicle accidents which is the methodology adopted by the Division Bench of this court in Baghyabhai (supra). The Co-ordinate Bench of this court has also adopted similar principles to calculate compensation and grant relief in case of death or injury due to electrocution in Shri Nagappa Manneppa Naik and Others (supra).<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>8. Accordingly, even in case of concurrent remedies being available for claim of compensation by tortious acts committed by State Entities, the invocation of writ jurisdiction cannot be objected to as the tort-feasor being State under Article 12 of Constitution of India, remedy against such tort-feasor is open to be asserted by invoking such jurisdiction.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(i)<span style=\"white-space:pre\">	</span>In W.P.No.53302/2018 the petitioner is entitled to receive compensation amount of Rs.49,26,000/- (See Para 44.3) The respondent no.2 shall deposit compensation to the tune of Rs.40,00,000/- in a fixed deposit in a nationalised bank for such a period till the petitioner attains majority.  The  interest  payable  on  this  amount  shall  be released on quarterly basis to the father of the petitioner towards expenses to be incurred. The remaining compensation amount of Rs.9,26,000/- shall be released to the father of the petitioner to meet special needs such as medical and other expenses. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(ii)<span style=\"white-space:pre\">	</span>In W.P.No.6087/2019 the petitioner is entitled to receive compensation amount of Rs.44,32,050/-, (See Para 44.2) The respondent no.2 shall deposit compensation to the tune of Rs.29,00,000/- in a fixed deposit in a nationalised bank for such a period till the petitioner attains majority. The interest payable on this amount shall be released on quarterly basis to the father of the petitioner towards expenses to be incurred. The remaining compensation amount of Rs.15,32,050/- shall be released to the father of the petitioner to meet special needs such as medical and other expenses. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(iii) In W.P.No.1383/2020 the petitioner is entitled to the sum of Rs.25,52,500/- by way of compensation (See para   44.1).   The   respondent   No.1   shall   deposit compensation to the tune of Rs.12,76,250/- in a fixed deposit in a nationalised bank for a period of 05 years. The interest payable on this amount shall be released on quarterly basis to the petitioner-widow. The remaining compensation amount of Rs.12,76,250/- shall be released to the petitioner-widow to meet necessary needs. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(iv)<span style=\"white-space:pre\">	</span>The compensation stated above is to be paid within three months, in default of payment of compensation within the time prescribed, amount due would carry further interest at 6% per annum till date of payment. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(v)<span style=\"white-space:pre\">	</span>The right of the respondents to proceed against the joint tort-feasors or as against others as the case may be on the principle of contributory negligence is preserved to be exercised in accordance with law and such liberty would take care of the grievance of financial prejudice as made out by the respondents. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(vi)<span style=\"white-space:pre\">	</span>The application for impleading filed in W.P.No.1383/2020  (I.A.-1/2022  seeking  to  implead  the owner of the land) and the application filed in W.P.No.6087/2019 (I.A.-1/2020 seeking to implead the owner of the building as well as BBMP) are liable to be rejected.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(vii)<span style=\"white-space:pre\">	</span>Before parting, after noticing the plight of dependents in W.P.No.1383/2020, wherein the dependents have lost their sole breadwinner on 22.02.2018 and have not received any amount of compensation till date, even under the Government Order dated 09.11.2017, it would be appropriate to direct as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>a)<span style=\"white-space:pre\">	</span>Whenever the report under section 161 is furnished to the Distribution/Supply Company, the exgratia compensation as per Government Order is to be paid within an outer limit of two months.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>b)<span style=\"white-space:pre\">	</span>This is however subject to those cases where the accident is directly attributable to overhead lines in terms of the Consumer Guide to claim Solatium issued by KERC (Annexure-\'G\' in W.P.No.1383/2020), compensation is to be paid under the Government Order without waiting for report of CEIG. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>Accordingly, the petitions are disposed off.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '09f740d48f12e29e4e036c2ac9fb917a.JPG', '22152d9011e3f069087d9506361b0fa2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-08', 1, '', '', '2022-08-05 16:34:56', '2022-08-08 13:56:12'),
(200, 'b5xTcXMcLMl8dVzhpVvjHseXj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Education. Courts must adopt soft approach to students victimized by diseases. ', '<h3 style=\"text-align: center; \"><b>Education. Courts shall adopt soft approach to students victimized by diseases. Karnataka High Court directs extension of additional hours to student suffering from ‘Osteogenesis Imperfecta’.</b></h3><h3 style=\"text-align: center; \">Master Bharath S vs The Secretary, Education Department and Others. Writ Petition 10051/2020 decided 9 November 2020.</h3><b><br>Judgment Link: </b><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348186/1/WP10051-20-09-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348186/1/WP10051-20-09-11-2020.pdf</a></h4><h4><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Prayer in the Writ Petition – for direction to the second respondent-Examination Board to dispense with the requirement of final examination, treating his performance in the Preparatory Examination itself as the final one, since he is a chronic patient of “OSTEOGENESIS IMPERFECTA”, with 75% physically disability.</span></div></h4><h4><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Relevant Paragraphs:</b></span><span style=\"font-size: 1.3125rem;\"><b> </b>3(a) “OSTEOGENESIS IMPERFECTA” (OI) is explained by standard medical text books as a group of genetic disorders that mainly affect the bones; the term literally means an imperfect bone formation, since it&nbsp; results&nbsp; in bones that break easily; this is believed to be caused by defective genes that affect how the body makes collagen, a protein that is associated with the formation and strengthening of the bones;</span></div></h4><h4><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">3(c) ….Court cannot turn Nelson’s Eye to the suffering of the students who are struck with this tortuous disease that lasts for the life, medication for its mitigation arguably not yielding much relief; the authentic&nbsp; medical&nbsp; literature&nbsp; which&nbsp; the&nbsp; counsel for the petitioner has produced warrants a soft approach to the students who are victimized by this disease; the Apex Court in State of Rajasthan vs Om Prakash, (2002) 5 SCC 745 has stressed the need for a sensitive approach when dealing with the matter relating to children; the Office Memorandum dated 26.02.2013 issued by the Government of India empowers the school/examination authorities to accord reprieve to such students by making appropriate provision.</span></div></h4><h4><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">3(d) The Government being the guardian of the citizens vide parens patria has shown an appreciable&nbsp; gesture in formulating a humane policy through the said O.M.; consistent with this policy, the&nbsp; authorities&nbsp; responsible for conduct of examinations have to show relaxation and reprieve to the suffering students of&nbsp; the&nbsp; kind;</span></div></h4><h4><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Writ of Mandamus issues to the second respondent to extend to the petitioner and other similarly circumstanced candidates the relaxation by elongating the duration of final examination of X Standard through additional two hours; discretion lies with the authorities to grant longer extension as well keeping in view the degree of disability, subject to the rider that this concession is not abused by the unscrupulous.</span></div></h4><h4><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Note: </b>The Honorable Court made reference to: ‘No Child Left Behind Act of 2001’ and its improved version ie., ‘Every Student Succeeds Act, 2015’ enacted by the US Congress (Parliament), keeping with the Human Rights Jurisprudence; there are several international conventions which deal with Child Rights and more particularly differently&nbsp; abled&nbsp; juveniles;&nbsp; the United Nations Convention on the Rights of People with Disabilities, 2006 is ratified by India; Article 24 of the same provides that education shall be without discrimination and shall be on the basis of equal opportunity and further that the Government shall ensure an inclusive education system at all levels; the UN Millenium Development Goal (MDGs) includes access to and completion of universal primary education by 2015 providing a basic policy framework for including the children with special needs and disabilities till the age of 18 years; in fact the Central Government through the Ministry of Human Resource Development has initiated a new scheme called ‘Integrated Education for Disabled Children in Secondary Schools’ (IEDSS) with the main objective of providing equal educational opportunities even for children with disabilities in the regular school system from 9th Std. to PUC; such protective measures ensure that the diseased/disabled children do not lag behind in the academic race, which neo educationists often brand as ‘mad rat race of life’.</span></div></h4><h4><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></span></div></h4>', '122b268d100d8b1279ddd7fe75a58259.jpeg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-09', 1, '', '', '2020-12-09 04:18:57', '2021-01-07 22:09:46'),
(201, 'RDqthpRDDUN1HNkAz0SWcr3EI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cancellation of bail. Violation of bail conditions or obstruction of trial by the accused must be shown ', '<h3 style=\"text-align: center; \"><b>Cancellation of bail. Mere failure of the prosecution to bring out pending cases against accused while granting bail cannot be a ground for cancelling bail. There must be material to show violation of bail conditions or obstruction of trial by the accused. Karnataka High Court. 5:11:2020</b></h3><h3 style=\"text-align: center; \">Ms. X vs State of Karnataka and another. Criminal Petition 4598/2020 decided on 5 November 2020.</h3><h4><br>Judgment Link: </h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348258/1/CRLP4598-20-05-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348258/1/CRLP4598-20-05-11-2020.pdf</a></h4><h4><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Relevant Paragraphs</b></span><span style=\"font-size: 1.3125rem;\"><b>:</b> 8 &amp;20 The Apex Court also in the similar circumstances in the case of Chandrakeshwar Prasad v. State of Bihar and Anr. in Criminal Appeal No.932/2016 and State of Bihar v. Md. Shahabuddin in Criminal Appeal No.933/2016 decided on 30.09.2016, reported in (2016) 9 SCC 443 held that the suppression of material facts before the Court regarding the several criminal antecedents of the accused while obtaining the order of bail makes the aforesaid order vitiated. No doubt, the State while considering the earlier bail petition did not bring it to the notice of this Court about the pendency of several cases against this petitioner. Merely registering of several cases against respondent No.2 is not a ground to invoke Section 439(2) of Cr.P.C. While exercising the power under Section 439 (2) of Cr.P.C., the Court has to look into the material available on record.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">23. Merely because the prosecution has failed to bring out the said cases which are pending against him while considering the bail petition, the same cannot be a ground for canceling the same. The Apex Court, in Neeru Yadav’s case taking note of the fact that he was a history-sheeter and involved in murder and dacoity cases, has invoked Section 439(2) of Cr.P.C.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">24. To invoke Section 439 (2) of Cr.P.C., there must be material before the Court to show that there is violation of conditions of the bail order granted or the accused is coming in the way of trial. Mere filing of cases is not a ground to come to the conclusion that he is a habitual offender and he has to be tried and found material that he is having criminal antecedents and having considered the nature of cases registered against&nbsp; him and the offences invoked against him, it requires full fledged trial to ascertain the truth. The judgments of Chandrakeshwar Prasad and Shahabuddin cases do not assist the case of the petitioner to invoke Section 439(2) of Cr.P.C. When no such circumstances have been made out in the case on hand, this Court is not inclined to exercise powers conferred under Section 439(2) of Cr.P.C.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">25. In the absence of any cogent material on record, the liberty of any person as envisaged under Article 21 of the Constitution of India cannot be curtailed on the mere ground of number of cases being pending against him. It is settled law that Section 439(2) of Cr.P.C. has to be invoked in exceptional cases when it causes miscarriage of justice, if it is not invoked and the same has to be exercised sparingly and not mere asking of the cancellation of bail.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Petition dismissed.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><i><br></i></span></div><i>Compiled by S. Basavaraj, Advocate, Daksha Legal</i></h4>', '46fd8794f132970025d10a5462578385.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-05', 1, '', '', '2020-12-09 04:24:24', '2021-01-07 22:07:56'),
(202, 'VczzGtGasp6OTVUIXau1VT7vk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Writ of Mandamus. Prerequisite. The demand has to be made only to the authority which is under a legal obligation to take action.', '<h4></h4><h1 style=\"text-align: center;\"><span style=\"font-size: 21px;\"><b>Writ of Mandamus. Prerequisite. The demand has to be made only to the authority which is under a legal obligation to take action. Karnataka High Court.</b></span></h1><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\">M.N. Murthy and others vs The State of Karnataka and others. </span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\">Writ Petition 12682/2020. </span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\">Decided on 2 December 2020.</span></div><div style=\"text-align: left;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><h4><b>Judgment Link: </b></h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352114/1/WP12682-20-02-12-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352114/1/WP12682-20-02-12-2020.pdf</a></h4><h4><p><span style=\"font-size: 1.3125rem;\"><br></span><p><span style=\"font-size: 1.3125rem;\">Relevant paragraphs:&nbsp;<br></span>2. As far as a writ of mandamus is concerned, the well settled law has been reiterated by the Apex Court in the case of Saraswati Industrial Syndicate Ltd. and others –vs- Union of India. (1974) 2 SCC 630<br> <br>Paragraphs-24&nbsp; and 25 of the said judgment read thus:&nbsp;<i style=\"font-size: 1.3125rem;\">“24. As the appeals fail on merits we need not discuss the technical difficulty which an application for a writ of certiorari would encounter when no quasi-judicial proceeding was before the High Court. The powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless, the well recognized rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary&nbsp; general rule, which is subject to certain exceptions, applied by us, as it is in England, when a writ of mandamus is asked for, could be stated as we find it set out in Halsbury’s Laws of England (3rd Edn.), Vol.13,&nbsp; p:&nbsp; 106):&nbsp;<br></i><i style=\"font-size: 0.875rem;\">“As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal.”</i><i style=\"font-size: 0.875rem;\">25. In the cases before us there was no such demand or refusal. Thus, no ground whatsoever is shown here for the issue of any writ, order, or direction under Article 226 of the Constitution. These appeals&nbsp; must be and are, hereby, dismissed but in the circumstances of the case we make no order as to costs.”&nbsp;</i></p></p></h4><h4><p><span style=\"font-size: 0.875rem;\">3. As far as a writ of mandamus is concerned, a High Court can issue such a writ enjoining the respondents to perform their&nbsp; statutory&nbsp; duty. However, the condition precedent for invoking the jurisdiction of this Court for seeking a writ of mandamus is that the petitioner must demand justice and seek compliance of statutory obligations of the respondents.&nbsp;</span></p><p><span style=\"font-size: 0.875rem;\">4. When the question of making such a demand arises, the same has to be made to the authority, which is under the legal obligation to do or not to do a particular act. For example, if a grievance of writ petitioner is about the failure of a municipal corporation to take action of demolition of an illegal construction, naturally the demand in writing has to&nbsp; be made to the competent authority under the Karnataka Municipal Corporations Act, 1976, which is empowered to take action of demolition.</span><span style=\"font-weight: bolder; font-size: 0.875rem;\">&nbsp;</span><span style=\"font-size: 0.875rem;\">If the representation is made to an authority which is not competent to take action as demanded in the representation, the said authority is not under an obligation to act as per the representation.</span><span style=\"font-size: 0.875rem;\"><br></span></p><p><span style=\"font-size: 0.875rem;\">5 &amp; 6. The well settled rule is that ordinarily while filing legal proceedings, if more efficacious relief can be sought by a litigant, he must seek that relief.</span><span style=\"font-weight: bolder; font-size: 0.875rem;\">&nbsp;</span><span style=\"font-size: 0.875rem;\">The representation has to be addressed only to the authority which is under a legal obligation to take action.</span></p></h4><h4><p></p></h4><p><i><b>Compiled by S. Basavaraj, Advocate, Daksha Legal</b></i></p><h4><i> </i></h4>', '9449fa889c336031029c068d75d9138d.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-02', 1, '', '', '2020-12-10 02:09:17', '2021-01-07 22:05:44'),
(205, 'VtDO6x2DftpbsPcgnZ62TkIwr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Writ petition maintainable against Bar Association discharging public function. Case law discussed. Karnataka High Court.', '<h3 style=\"text-align: center; box-sizing: inherit; font-size: 2.25em; margin-right: 0px; margin-bottom: 32px; margin-left: 0px; font-family: \" crimson=\"\" text\",=\"\" \"baskerville=\"\" old=\"\" face\",=\"\" garamond,=\"\" \"times=\"\" new=\"\" roman\",=\"\" serif;=\"\" -webkit-font-smoothing:=\"\" antialiased;=\"\" clear:=\"\" both;=\"\" word-break:=\"\" break-word;=\"\" hyphens:=\"\" none;=\"\" color:=\"\" rgb(30,=\"\" 30,=\"\" 30);\"=\"\"><b>Judicial review. Writ petition maintainable against Bar Association discharging public function. Case law discussed. Karnataka High&nbsp;Court.</b></h3><h4>Chandrakant vs Karnataka State Bar Council and others. </h4><h4>Writ Appeal 100141/2020 decided on 30 November 2020.<br></h4><h4><br><b>Judgment Link: </b></h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352210/1/WA100141-20-30-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352210/1/WA100141-20-30-11-2020.pdf</a><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352210/1/WA100141-20-30-11-2020.pdf\" target=\"_blank\"></a></h4><h4><span style=\"font-size: 1.3125rem;\"><br><b>Relevant paragraph : <br></b><br>36. The observations of the Hon’ble Apex Court and the various High Courts in the long line of rulings narrated supra, obviates any detail discussion with regard to the maintainability of a writ petition against the Bar Association invoking the provisions of Article 226 of the Constitution of India. That apart, as detailed supra, some of the obligation, the 3rd respondent has cast upon itself, bears a&nbsp; public&nbsp; character.&nbsp; The Advocates are not mere arbiters but officers of the court who assist the Court in the running of the justice&nbsp; delivery system and it is such officers of the court who constitute the 3rd respondent Society. That the constituents of the 3rd respondent Society are answerable to the Court and to the 1st respondent with regard to their conduct in the discharge of their professional duties. Both the 1st respondent and the Court can by no stretch of imagination be described as private entities. That apart, if the objects of the 3rd respondent Society are juxtaposed with the observations of the Hon’ble Apex Court in Dwarkanath Vs. Income Tax Officer 1965 (3) SCR 536 and Supreme Court Bar Association and othersvs.B.D.Kaushik&nbsp; &nbsp;(2011)13SCC774 case, it is apparent that the 3rd respondent discharges obligations of a public character. Hence, the writ petition invoking the provisions of Article 226 of the Constitution of India praying for a relief as against the 3rd respondent is required to be held as maintainable.</span></h4><h4><span style=\"font-size: 1.3125rem;\"><br></span></h4><h4><i><b>Compiled by S. Basavaraj, Daksha Legal.</b></i></h4>', '5a8ff3f76c9d11939e19c782ffb6f164.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-30', 1, '', '', '2020-12-10 19:30:49', '2021-01-05 23:06:15'),
(204, 'VQlm9f7ipyFiLAFrCnlMM3alQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Courts can review State action in contractual matters on the touchstone of Article 14 of the Constitution. Mandamus issued to release payment for the works executed. Karnataka High Court.', '<p></p><h3></h3><p style=\"text-align: justify;\"><span style=\"font-size: 1.53125rem;\"><b>Courts can review State action in contractual matters on the touchstone of Article 14 of the Constitution. Mandamus issued to release payment for the works executed. Karnataka High Court.<br></b></span></p><p><b>M/s. Chaitayna Geo Surveys vs State of Karnataka and Others. Writ Petition 10392/2020.</b></p><p><span style=\"font-size: 1.53125rem;\"><b>Judgment Link:<br></b></span><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352115/1/WP10392-20-09-12-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352115/1/WP10392-20-09-12-2020.pdf</a><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352115/1/WP10392-20-09-12-2020.pdf\" target=\"_blank\" style=\"font-size: 1.53125rem; background-color: rgb(255, 255, 255);\"></a><br><span style=\"font-size: 1.53125rem;\"><b><br></b></span><span style=\"font-size: 1.53125rem;\"><b>Relevant paragraphs:<br></b></span><span style=\"font-size: 1.53125rem;\"><br></span><span style=\"font-size: 1.53125rem;\">8 &amp;9. The State, when it enters into a contract, must do so fairly without discrimination, arbitrariness and unreasonableness. Any act of the State should withstand the test of judicial review under Article 14 of the Constitution. This power of review is normally exercised by the constitutional courts to rein any unbridled executive functioning. In a democratic State, rule of law is of paramount importance and the Courts are&nbsp; required to act as guardians of&nbsp; rule of law. Arbitrariness and unfairness in a contract defies the basics of rule of law. The respondent No.1&nbsp; is the beneficiary of&nbsp; the work done by the petitioner and it is clear from the facts and circumstances of the case that the instrumentalities&nbsp; of&nbsp; respondent No.1 have acted in a arbitrary and&nbsp; unfair&nbsp; manner after the work is completed.<br></span><span style=\"font-size: 1.53125rem;\"><span style=\"font-family: \" segoe=\"\" ui\";\"=\"\">10.The Hon’ble Apex Court in the case of ABL Internatiional Ltd. and Ors. –vs- Export Credit Guarantee Corporation of India Ltd. and Ors. 1 has held as under:<br></span></span><span style=\"font-size: 1.53125rem; font-family: \" segoe=\"\" ui\";\"=\"\">“</span><span style=\"font-size: 1.53125rem; font-family: \" segoe=\"\" ui\";\"=\"\"><i>23. It is clear from the above observations of this Court, once State or an instrumentality of State is a party to the contract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution of India. .”<br></i></span><span style=\"font-size: 1.53125rem;\"><br>11. In the very same judgment, the Hon’ble Apex Court considered the question of maintainability of a writ petition&nbsp; against a State for enforcement of right arising out of a&nbsp; contractual obligation. The Hon’ble Apex Court at para-29 of the aforesaid judgment has held as under:<br></span><i style=\"font-size: 1.53125rem;\">“29. From the above discussion of ours, following legal principles emerge as to the maintainability of&nbsp; a&nbsp; writ petition:-<br></i><i style=\"font-size: 1.53125rem;\">In an appropriate case, a writ petition as against&nbsp; a State or an instrumentality of a State arising out of a contractual obligation is maintainable.<br></i><i style=\"font-size: 1.53125rem;\">Merely because some disputed questions&nbsp; of&nbsp; facts arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.<br></i><i style=\"font-size: 1.53125rem;\">A writ petition involving a consequential relief of monetary claim is also maintainable.”<br></i><span style=\"font-size: 1.53125rem;\"><br>12. The Apex Court in the case of KUMARI SHRILEKHA VIDYARTHI ETC., VS STATE OF U.P. AND OTHERS – AIR 1991 SC 537, has held that State action in contractual matter can be reviewed under Article 14 of the Constitution. In paragraphs 22, 23, 24, 28 &amp; 29 of the said decision, the Apex Court has held as under:<br></span><i style=\"font-size: 1.53125rem;\">“22. There is an obvious difference in the&nbsp; contracts between private parties and contracts to which the State is a party, Private parties are concerned only with their personal interest whereas the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest. The impact of every State action is also on public interest. This factor alone is sufficient to import at least the minimal requirements of public law obligations and impress with this character the contracts made by the State or its instrumentality. It is a different matter that the scope of judicial review in respect of disputes failing within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes. However, to the extent, challenge is made on the ground&nbsp; of violation&nbsp; of Article 14 by alleging that the impugned act is arbitrary, unfair&nbsp; or unreasonable, the fact that the dispute also falls&nbsp; within the domain of contractual obligations would not relieve the State of its obligation to comply with&nbsp; the&nbsp; basic requirements of Article 14. To this extent, the obligation is of a public character invariably in every&nbsp; case irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the guarantee under Article 14 of non-arbitrariness at the hands of the State in any of its actions.<br></i><i style=\"font-size: 1.53125rem;\">23. Thus, in a case like the present, if it is shown that the impugned State action is arbitrary and,&nbsp; therefore, violative of Article 14 of the Constitution, there can be no&nbsp; impediment in striking down the impugned&nbsp; act irrespective of the question whether an additional right, contractual or statutory, if any, is also available to the aggrieved persons.<br></i><i style=\"font-size: 1.53125rem;\">27. The State cannot be attributed the split personality of Dr. Jekyll and Mr. Hyde in the contractual field so as to impress on it all the characteristics of the State at the threshold while making a contract requiring it to fulfil the obligation of Article 14 of the Constitution and thereafter permitting it to cast off its garb of State to adorn the new robe of a private body during the subsistence of the contract enabling it to act arbitrarily subject only to the contractual obligations and remedies flowing from it. It is really the nature of its personality as State which is significant and must characterize all its actions, in whatever field, and not the nature of function, contractual or otherwise, which is decisive of the nature of scrutiny permitted for examining the validity of its act. The requirement of Article 14 being the duty to act fairly, justly and reasonably, there is nothing which militates against the concept of requiring the State always to so act, even in contractual matters. There is a basic difference between the acts of the State which must invariably be in public interest and those of a private individual, engaged in similar activities, being&nbsp; primarily for personal gain, which may or may not promote public interest. Viewed in this manner, in which we find no conceptual difficulty or anachronism, we find no reason why the requirement of Article 14 should not extend&nbsp; even in the sphere of contractual matters for regulating the conduct of the State activity.<br></i><i style=\"font-size: 1.53125rem;\">28. Even assuming that it is necessary to import the concept of presence of some public element in a State action to attract Article 14 and permit judicial review, we have no hesitation in saying that the ultimate impact of all actions of the State or a public body being undoubtedly on public interest, the requisite public element for this purpose is present also in contractual matters. We, therefore, find it difficult and unrealistic to exclude the State actions in contractual matters, after&nbsp; the contract has been made, from the purview of judicial review to test its validity on the anvil of Article 14.<br></i><i style=\"font-size: 1.53125rem;\">29. It can no longer be doubted at this point of time that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy&nbsp; or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional&nbsp; ”</i></p><p><span style=\"font-size: 1.53125rem;\"><b>Compiled by S. Basavaraj, Daksha Legal.</b></span></p><p></p><h3><p></p> <div style=\"text-align: justify;\"></div></h3><h3><p></p><p></p><p></p></h3><p></p>', '857a4a766e6d028698d006a6c21d2330.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-09', 1, '', '', '2020-12-10 05:25:20', '2021-01-08 16:37:48'),
(206, 'WQ8MBrzLaMf7F4ZFOreg15wg9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Election Petition. A defective verification is a curable defect. Petition cannot dismissed on that ground. ', '<h1 class=\"entry-title\" style=\"text-align: center; box-sizing: inherit; font-size: 2.25em; margin-right: 0px; margin-bottom: 32px; margin-left: 0px; font-family: &quot;Crimson Text&quot;, &quot;Baskerville Old Face&quot;, Garamond, &quot;Times New Roman&quot;, serif; -webkit-font-smoothing: antialiased; clear: both; word-break: break-word; hyphens: none; color: rgb(30, 30, 30);\"><b>Election Petition. A defective verification is a curable defect. An election petition cannot be thrown out in limine, on the ground that the verification is&nbsp;defective.</b></h1><h4>Saritha S Nair vs Hibi Eden. Special Leave Petition (Civil) 10678/2020 decided on 9 December 2020.</h4><h4><br>Judgment Link: </h4><h4><a href=\"https://main.sci.gov.in/supremecourt/2020/4203/4203_2020_31_1501_25128_Judgement_09-Dec-2020.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/4203/4203_2020_31_1501_25128_Judgement_09-Dec-2020.pdf</a></h4><h4><br>Relevant para: 43. The upshot of the above discussion is that defective verification is a curable defect. An election petition cannot be thrown out in limine, on the ground that the verification is defective.</h4><p><img src=\"https://dakshalegalhome.files.wordpress.com/2020/12/1.jpg?w=838\"></p><p><img src=\"https://dakshalegalhome.files.wordpress.com/2020/12/2.jpg?w=817\"></p><p><img src=\"https://dakshalegalhome.files.wordpress.com/2020/12/3.jpg?w=830\"></p><p style=\"text-align: center; \"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/12/4.jpg?w=849\"></p><p style=\"text-align: center; \"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/12/5.jpg?w=819\"></p><p style=\"text-align: center; \"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/12/6.jpg?w=830\"></p><p style=\"text-align: center; \"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/12/7.jpg?w=819\"></p><p style=\"text-align: center; \"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/12/8.jpg?w=829\"><br></p>', '185cdeac1f701bf82cd81e0787fbf985.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-09', 1, '', '', '2020-12-10 19:49:40', '2020-12-10 19:49:40');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(207, 'hGbokcOuvjaqRlNgTyXQzwG1o', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Election - Person disqualified from contesting the elections can not maintain an election petition as  “a   candidate  at   such  election”', '<h3 style=\"box-sizing: inherit; margin-right: 0px; margin-bottom: 32px; margin-left: 0px; text-align: center;\"></h3><h4><span style=\"font-size: 31.5px;\"><b>Election Petition. Person disqualified from contesting the elections can not maintain an election&nbsp;</b></span><b style=\"font-size: 31.5px;\">petition as&nbsp; “a candidate&nbsp; at&nbsp; &nbsp;such&nbsp; election”</b></h4><h4>Saritha S Nair vs Hibi Eden. Special Leave Petition (Civil) 10678/2020 decided on 9 December 2020.</h4><h4><br>Judgment Link:</h4><h4><a href=\"https://main.sci.gov.in/supremecourt/2020/4203/4203_2020_31_1501_25128_Judgement_09-Dec-2020.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/4203/4203_2020_31_1501_25128_Judgement_09-Dec-2020.pdf</a></h4><h4><br><b>Relevant para: CONCLUSION 62. Th</b>erefore, in fine, we hold that the petitioner was disqualified from contesting the elections in terms of Section 8(3) of the Act. In such circumstances, she could not have maintained an election petition as&nbsp; “a&nbsp; &nbsp;candidate&nbsp; at&nbsp; &nbsp;such&nbsp; election”&nbsp; in terms of Section 81(1). Therefore, the High Court was right in not venturing into an exercise&nbsp; &nbsp;in&nbsp; &nbsp;futility,&nbsp; &nbsp;by&nbsp; &nbsp;taking&nbsp; &nbsp;up&nbsp; &nbsp;the&nbsp; &nbsp;election&nbsp; &nbsp;petition&nbsp; &nbsp;for&nbsp; &nbsp;trial.&nbsp;</h4><p><img src=\"https://dakshalegalhome.files.wordpress.com/2020/12/1.jpg?w=838\"></p><p><img src=\"https://dakshalegalhome.files.wordpress.com/2020/12/2.jpg?w=817\"></p><p><img src=\"https://dakshalegalhome.files.wordpress.com/2020/12/3.jpg?w=830\"></p><p style=\"text-align: center;\"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/12/4.jpg?w=849\"></p><p style=\"text-align: center;\"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/12/5.jpg?w=819\"></p><p style=\"text-align: center;\"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/12/6.jpg?w=830\"></p><p style=\"text-align: center;\"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/12/7.jpg?w=819\"></p><p style=\"text-align: center;\"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/12/8.jpg?w=829\"></p>', 'f24ef70a89fe9432899fa20d0b3d4dcd.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-09', 1, '', '', '2020-12-10 20:09:08', '2020-12-10 20:32:50'),
(208, 'S4O6zK0VWvr0QP5jHnvAAzL4t', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code – Sanction to prosecute Police Officers in case of Custodial Interrogation.', '<h3 style=\"text-align: center; \">Criminal Procedure Code – Section 197 Custodial Interrogation by Police. If the act alleged against the Police is reasonably connected with discharge of his official duty, sanction to prosecute him is a must, even if the Police has exceeded the scope of his power and acted beyond the four corners of law.</h3><h4><div style=\"text-align: center;\"><br></div>Supreme Court 18 June 2020<br>D.Devaraja vs Owais Sabeer Hussain<br>Criminal Appeal 458/2020<br>Decided on 18 June 2020<br>Justice R. Banumathi<br>Justice Indira Banerjee</h4><h4><br>Judgment Link: </h4><h4><a href=\"https://main.sci.gov.in/supremecourt/2018/6625/6625_2018_35_1504_22656_Judgement_18-Jun-2020.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/6625/6625_2018_35_1504_22656_Judgement_18-Jun-2020.pdf</a></h4><h4><br>Held 68. Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. The requirement of sanction from the government, to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate government.<br>69. Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given under Section 197 of the Criminal Procedure Code read with Section 170 of the Karnataka Police Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act.</h4><h4><br>71. If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of government sanction for initiation of criminal action against him.</h4><h4><br>73. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law.</h4><h4><br>74. If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate government is obtained under Section 197 of the Code of Criminal Procedure and/or Section 170 of the Karnataka Police Act.</h4><h4><br><i>Compiled by S.Basavaraj Daksha Legal</i></h4>', '55ffd7823dceca76a794773ca36e9a64.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-06-18', 1, '', '', '2020-12-10 20:56:09', '2020-12-10 20:56:09'),
(209, 'CA7O12aTB4MwfKhNyO9CMtFRg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Supreme Court on Medical Negligence', '<p style=\"text-align: center; \"><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Supreme Court on Medical Negligence</b></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Applicability of Consumer Protection Act.</b></div></b><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Indian Medical Assn. v. V.P. Shantha, (1995) 6 SCC 651. Para 55</b></div><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\"><br></b></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(1) Service rendered to a patient by a medical practitioner by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of ‘service’ as defined in Section 2(1)(o) of the Consumer Protection Act.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(Except where the doctor renders service free of charge to every patient or under a contract of personal service).</span></div></p><p style=\"text-align: center; \"><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(2) Medical practitioners are subject to the disciplinary control would not exclude the services from the ambit of the Act.<br><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(3) In the absence of a relationship of master and servant between the patient and medical practitioner, it is a service.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br>(4) Service rendered by a medical officer to his employer under the contract of employment would be outside the purview of ‘service’.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(5) Service rendered free of charge by a medical practitioner attached to a hospital/nursing home where such services are rendered free of charge to everybody, would not be ‘service’. Token amount for registration purpose only at the hospital/nursing home would not alter the position.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(6) Service rendered at a non-government hospital/nursing home where no charge whatsoever is made from any person availing of the service and all patients (rich and poor) are given free service — is outside the purview of the expression ‘service’. Token amount for registration purpose only at the hospital/nursing home would not alter the position.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(7) Service rendered at a non-government hospital/nursing home where charges are required to be paid by the persons availing of such services falls within the purview of the expression ‘service’.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(8) Service rendered at a non-government hospital/nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression ‘service’ irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be ‘service’ and the recipient a ‘consumer’ under the Act.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(9) Service rendered at a government hospital/health centre/dispensary where no charge whatsoever is made from any person availing of the services and all patients (rich and poor) are given free service — is outside the purview of the expression ‘service’. Token amount for registration purpose would not alter the position.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(10) Service rendered at a government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing of such services would fall within the ambit of the expression ‘service’.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing of the service has taken an insurance policy for medical care where under the charges for consultation, diagnosis and medical treatment are borne by the insurance company.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(12) Where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would be ‘service’.</span></div><b><br><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Bolam Test</b></div></b><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Bolam v Friern Hospital Management Committee [1957] 1 WLR 582</b></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">“If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent”. “The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man.need not possess the highest expert skill, it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising’ that particular art (a health care professional), is not guilty of negligence if he has ‘acted in accordance with a practice accepted as proper by a responsible body of medical man skilled in the particular act” Bolam test says that to term the act of doctor as negligent we should consider the act of another doctor in the ‘similar circumstances and facilities as existed with the treating doctor. Also the professional knowledge </span>and skill<span style=\"font-size: 0.875rem;\">&nbsp;of the treating•doctor should be compared with another doctor having same educational background. Courts in a multiple number of’ cases’ have very well settled these issues worldwide</span></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\"><br>V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513<br></b></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Bolam was suffering from mental illness of the depressive type and was advised by the doctor attached to the defendants’ Hospital to undergo electroconvulsive therapy. Prior to the treatment Bolam signed a form of consent to the treatment but was not warned of the risk of fracture involved. Even though the risk was very small and on the first occasion when the treatment was given Bolam did not sustain any fracture but when the treatment was repeated for the second time, he sustained fractures. No relaxant drugs or manual control were used except that a male nurse stood on each side of the treatment couch throughout the treatment. About this treatment there were two bodies of opinion, one of which favoured the use of relaxant drugs or manual control as a general practice, and the other opinion was for the use of drug that was attended by mortality risks and confined the use of relaxant drugs only to cases where there are particular reasons for their use and Bolam case was not under that category. On these facts the expert opinion of Dr. J. de Bastarrechea, consultant psychiatrist attached to the Hospital was taken. Ultimately the Court held that the doctors were not negligent. A Doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.</span></div><b><br><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Kusum Sharma v. Batra Hospital, (2010) 3 SCC 480<br></b></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The ratio of Bolam case is that it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that the respondent charged with negligence acted in accordance with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">VIII. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurising the medical professionals/hospitals, particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.</span></div><b><br><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Samira Kohli v. Dr. Prabha Manchanda, (2008) 2 SCC 1.<br></b></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(i) A doctor is not negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. … Putting it the other way round, a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. (All ER p. 122 B-D)</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(ii) When a doctor dealing with a sick man strongly believed that the only hope of cure was submission to a particular therapy, he could not be criticised if, believing the danger involved in the treatment to be minimal, did not stress them to the patient.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(iii) In order to recover damages for failure to give warning the plaintiff must show not only that the failure was negligent but also that if he had been warned he would not have consented to the treatment. (All ER p. 118 H-I)</span></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\"><br>Bonafide Mistake, Error of Judgment etc</b></div></b><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Spring Meadows Hospital v. Harjol Ahluwalia, (1998) 4 SCC 39<br></b><span style=\"font-size: 0.875rem; font-weight: 400;\">1. Bona fide mistake under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor.</span><b style=\"font-size: 0.875rem;\"><br></b></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">2. An error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is made by a reasonably competent professional man professing to have the standard and type of skill and acting with ordinary care, then it is not negligence.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">3. Gross medical mistake will always result in a finding of negligence.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">4. Use of wrong drug or wrong gas during the course of anaesthetic will frequently lead to the imposition of liability</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">5. Delegation of responsibility to another may amount to negligence in certain circumstances. Delegates to his junior with the knowledge that the junior was incapable of performing of his duties properly.</span></div><b><br><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Suresh Gupta (Dr.) v. Govt. of NCT of Delhi, (2004) 6 SCC 422 Criminal Liability</b></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">To convict a doctor, the prosecution has to come out with a case of high degree of negligence. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. Alleged criminal offence causing death of his patient during treatment must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Doctor was charged with Section 304-A IPC reads thus: “304-A. Causing death by negligence.— “whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The patient was operated by him for removing his nasal deformity. While conducting minor operation for removing nasal deformity, doctor gave incision at wrong part due to that blood seeped into the respiratory passage and because of that patient immediately collapsed and died. Death was due to ‘asphyxia resulting from blockage of respiratory passage by aspirated blood consequent upon surgically incised margin of nasal septum’. This indicates that adequate care was not taken to prevent seepage of blood down the respiratory passage which resulted in asphyxia.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The cause of death is stated to be “not introducing a cuffed endotracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage”.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Defence taken Sections 80 and 88 IPC “80. Accident in doing a lawful act.—Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">88. Act not intended to cause death, done by consent in good faith for person’s benefit.—Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">SC says “this act attributed to the doctor, even if accepted to be true, can be described as negligent act as there was lack of due care and precaution. For this act of negligence he may be liable in tort but his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">We find that no case of recklessness or gross negligence has been made out against the doctor to compel him to face trial for offence under Section 304-A IPC</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Savita Garg v. Director, National Heart Institute, (2004) 8 SCC 56.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Ordinary human fallibility can be pardoned. A mistake which would tantamount to negligence cannot be. In the former case a court can accept. In the latter, the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor.</span></div><div style=\"text-align: justify;\"><b><br></b></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Jacob Mathew v. State of Punjab, (2005) 6 SCC 1</b><span style=\"font-size: 0.875rem; font-weight: 400;\">.</span></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">So also an error of judgment on the part of a professional is not negligence per se.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Medical professionals in criminal law</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Criminal law places medical professionals on a different pedestal. IPC sets out examples. Section 88 in the Chapter on General Exceptions provides exemption for acts not intended to cause death, done by consent in good faith for person’s benefit. Section 92 provides for exemption for acts done in good faith for the benefit of a person without his consent though the acts cause harm to the person and that person has not consented to suffer such harm.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Section 93 saves from criminality certain communications made in good faith. Illustrations</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Section 88</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z’s death, and intending, in good faith, Z’s benefit, performs that operation on Z, with Z’s consent. A has committed no offence.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Section 92</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">&nbsp;(a) Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned. A, not intending Z’s death, but in good faith, for Z’s benefit, performs the trepan before Z recovers his power of judging for himself. A has committed no offence.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child’s guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child’s benefit. A has committed no offence.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Section 93</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient’s death.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">To impose criminal liability under Section 304-A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Conclusions summed up in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The essential components of negligence are three: “duty”, “breach” and “resulting damage”.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(3) A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(4) When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(5) Failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident).</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(6) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(7) It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(8) The test for determining medical negligence as laid down in Bolam case holds good in its applicability in India.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(9) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(10) The word “gross” has not been used in Section 304-A IPC. Criminal law negligence or recklessness, to be so held, must be of such a high degree as to be “gross”. The expression “rash or negligent act” as occurring in Section 304-A IPC has to be read as qualified by the word “grossly”.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(11) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.</span></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\"><br>Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221</b></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The essential ingredients of Section 304-A are as under:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(i) Death of a person.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(ii) Death was caused by the accused during any rash or negligent act.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(iii) Act does not amount to culpable homicide.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">And to prove negligence under criminal law, the prosecution must prove:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(i) The existence of a duty.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(ii)A breach of the duty causing death.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(iii) The breach of the duty must be characterised as gross negligence.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Kishore Lal v. Chairman, ESI Corpn., (2007) 4 SCC 579.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Cause of action for negligence arises only when damage occurs and thus the claimant has to satisfy the court on the evidence that three ingredients of negligence, namely, (a) existence of duty to take care; (b) failure to attain that standard of care; and (c) damage suffered on account of breach of duty, are present for the defendant to be held liable for negligence. Therefore, the claimant has to satisfy these ingredients before he can claim damages for medical negligence of the doctors</span></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\"><br>Sterilisation</b></div></b><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">State of Haryana v. Santra, (2000) 5 SCC 182.</b></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Negligence may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or negligence per se, which is defined in Black’s Law Dictionary as under:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Unwanted child Poor labourer woman, who already had many children and had opted for sterilisation, developed pregnancy and ultimately gave birth to a female child in spite of sterilisation operation which, obviously, had failed.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Smt Santra, claimed Rs 2 lakhs as damages for medical negligence. Decreed Rs 54,000 with interest. Confirmed</span></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\"><br>State of Punjab v. Shiv Ram, (2005) 7 SCC 1</b></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">40. Failure of many a sterilisation operation, though successfully performed, is attributable to causes other than medical negligence as we have already discussed hereinabove. And, yet doctors are being faced with claims for damages. Some of the claims have been decreed by the courts without arriving at any finding providing a foundation in law for upholding such a claim. Mostly such surgeries are performed on a large-scale and as a part of family welfare programmes of the Government. Obviously, such programmes are in public interest. Such like decrees act as a disincentive and have deterrent effect on the surgeons performing sterilisation operations. The State, flooded with such decrees is also inclined not to pursue family planning camps on large-scale though in public interest.</span></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\"><br>State of Haryana v. Raj Rani, (2005) 7 SCC 22.</b></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">A three-Judge Bench of this Court has held in State of Punjab v. Shiv Ram that childbirth in spite of a sterilisation operation can occur due to negligence of the doctor in performance of the operation, or due to certain natural causes such as spontaneous recanalisation. The doctor can be held liable only in cases where the failure of the operation is attributable to his negligence and not otherwise. Several textbooks on medical negligence have recognised the percentage of failure of the sterilisation operation due to natural causes to be varying between 0.3% to 7% depending on the techniques or method chosen for performing the surgery out of the several prevalent and acceptable ones in medical science. The fallopian tubes which are cut and sealed may reunite and the woman may conceive though the surgery was performed by a proficient doctor successfully by adopting a technique recognised by medical science. Thus, the pregnancy can be for reasons dehors any negligence of the surgeon. In the absence of proof of negligence, the surgeon cannot be held liable to pay compensation. Then the question of the State being held vicariously liable also would not arise. The decrees cannot, therefore, be upheld.</span></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\"><br>Childcare</b></div></b><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">B. Jagdish v. State of A.P., (2009) 1 SCC 681.</b></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">A person should not profess himself to be a child specialist unless he has the requisite expertise. Unless a person has a special skill to treat a child, ordinarily he could not have treated her, not because he was wholly incompetent therefor but because it required a specialised skill keeping in view the nature of the disease the child was suffering from.</span></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\"><br>Blood Transfusion</b></div></b><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Postgraduate Institute of Medical Education &amp; Research v. Jaspal Singh, (2009) 7 SCC 330.</b></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Wrong blood transfusion is an error which no hospital/doctor exercising ordinary care would have made. Such an error is not an error of professional judgment but in the very nature of things a sure instance of medical negligence. The hospital’s breach of duty in mismatched blood transfusion contributed to her death, if not wholly, but surely materially. Mismatched blood transfusion to a patient having sustained 50% burns by itself speaks of negligence.</span></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\"><br>Expert Witness</b></div></b><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Ramesh Chandra Agrawal v. Regency Hospital Ltd., (2009) 9 SCC 709</b></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Without examining the expert as a witness in court, no reliance can be placed on an opinion alone. No expert would claim today that he could be absolutely sure that his opinion was correct, expert depends to a great extent upon the materials put before him and the nature of question put to him.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">&nbsp;(i) that the expert must be within a recognised field of expertise,</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(ii) that the evidence must be based on reliable principles, and</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(iii) that the expert must be qualified in that discipline.</span></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\"><br>Consent:</b></div></b><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">S.K. Jhunjhunwala v. Dhanwanti Kaur, (2019) 2 SCC 282</b><span style=\"font-size: 0.875rem; font-weight: 400;\">.</span></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The patient had given express consent in writing to perform only “laparoscopy surgery” but the appellant instead of performing “laparoscopy surgery” proceeded to perform conventional surgery and in that process removed her gall bladder.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Clause 4 of the Consent Form, the doctor was entitled to perform the conventional surgery as a substitute. Having noticed some abnormalities at the time of performing laparoscopy, it would not be possible for the team of doctors attending the patient to continue further with laparoscopy of the gall bladder.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Supreme Court said that there was no need to have another consent form to do the conventional surgery in the light of authorisation contained in Clause 4 itself because the substitute operation was of the same organ for which the former one was advised except with a difference of another well-known method known in medical subject to get rid of the malady.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Suffering of ailment by the patient after surgery is one thing. It may be due to myriad reasons known in medical jurisprudence. Whereas suffering of any such ailment as a result of improper performance of the surgery and that too with the degree of negligence on the part of the doctor is another thing. To prove the case of negligence of a doctor, the medical evidence of experts in the field to prove the latter is required. Simply proving the former is not sufficient.</span></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\"><br>Unreasonable decision</b></div></b><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Nand Kishore Prasad v. Mohib Hamidi, (2019) 6 SCC 512, at page 516&nbsp; :</b></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Unreasonable decision of the Operating Surgeon to operate is different from “bit negligent” so as to absolve the surgeon from the allegation of medical negligence.</span></div> <div style=\"text-align: justify;\"><br></div><i><div style=\"text-align: justify;\"><i style=\"font-size: 0.875rem;\"><b>Compiled by S. Basavaraj, Daksha Legal</b></i></div></i></p>', '40ed1fc10761fe6c360ca2993b8a90bb.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-10', 1, '', '', '2020-12-10 23:35:23', '2021-01-05 22:52:59');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(210, 'cD6z4yZsD2wZh2JqTWLP2pWhF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Financial moratorium.  Writ against private banks to implement RBI Circular can be issued. ', '<p style=\"text-align: center; \"><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>Refusal to grant financial moratorium.&nbsp; Writ against private banks to implement RBI Circular can be issued. Karnataka High Court.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Velankani Information Systems Limited vs&nbsp; &nbsp;Secretary, Ministry of Home Affairs, Government of India and others.&nbsp; Writ Petition 6775/2020. Decided on 8 July 2020.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b><br>Judgement Link:</b></span></div> <div style=\"text-align: justify;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/334829/1/WP6775-20-08-07-2020.pdf\" target=\"_blank\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/334829/1/WP6775-20-08-07-2020.pdf\" target=\"_blank\" style=\"background-color: rgb(255, 255, 255); font-size: 0.875rem;\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/334829/1/WP6775-20-08-07-2020.pdf</a><br></a></div></p><p><p><span style=\"font-size: 1.3125rem;\">8 July 2020. The Karnataka High Court has held that a Writ Petition under Article 226 of the Constitution of India is maintainable against private banks seeking implementation of the Circular issued by the Reserve Bank of India dated 27 March 2020.&nbsp;</span><span style=\"font-size: 21px;\"><br></span><span style=\"font-size: 0.875rem;\">Justice Suraj Govindaraj framed a specific question as to&nbsp; whether a writ of mandamus can be issued against a private bank to implement the Circular issued by the RBI dated 27.03.2020?. While answering this question, the judge has held that It is the obligation and duty of the RBI to regulate the financial institutions, its business as also the credit system of the country, by exercising the powers vested with it under the Reserve Bank of India Act, 1934. The RBI circular has permitted the grant of a moratorium to all borrowers so as to keep the viable borrowers/business running. It is therefore clear that the Circular is issued in the public interest and any aspect relating thereto would attract a public law element.<br></span><span style=\"font-size: 0.875rem;\">The court relied, inter alia, on the judgment of the Supreme Court in Punjab National Bank and another vs Astamija Dash (2008) 14 SCC 370 to the effect that the said bank was covered within the ambit of Article 12 of the Constitution. The Supreme Court issued a writ when the dispute before the Court was relating to the enforcement of the principle of equality amongst the employees of the Bank, holding that same is a public duty of the Bank.<br></span><span style=\"font-size: 0.875rem;\">Proceeding further, the Court held that though the Circular issued by the RBI dated 27 March is not mandatory in so far as the power to grant moratorium, it is mandatory for the Bank to ensure the continuity of viable business. Non-grant of moratorium should not result in adversely affecting the survival and continuity of a viable business.<br></span><span style=\"font-size: 0.875rem;\">The court in paragraph 22.16 held that Once the banks&nbsp; have in the public domain on their respective websites expressed their solidarity with all their customers and stated that all the customers are eligible for grant of a moratorium in accordance with RBI guidelines, it is not permissible for such banks to nit-pick and later on refuse the grant of a moratorium to petitioner who is otherwise eligible. That is to say the Banks cannot take one sided stand in the public domain and a contradictory stand while implementing that they have stated in the public domain. Both the RBI and the banks have held out that all customers are eligible for a moratorium. The availing of or otherwise of the moratorium is at the sole discretion of the borrower more so when the borrower would be required to make payment of additional interest during the said moratorium period.<br></span><span style=\"font-size: 0.875rem;\">The Court further held that the moratorium under the Circular is applicable even to a structured loan like LRD availed by the customer since the appropriation of the monies of the LRD would have negative impact on the continuity of the petitioner. One bank cannot refuse extension of a moratorium when another or others are willing to extend the benefit or a moratorium.<br></span><span style=\"font-size: 0.875rem;\">Allowing the writ petition, the Court granted a writ of mandamus against the Reserve Bank of India to enforce the recovery package contained in the Circular dated 27 March 2020. The communications issued by the banks are also quashed. The Court has directed the Banks to grant moratorium to the petitioner as per the Circular subject to payment of interest portion. The court has also restrained the banks from recovering the loan repayment installment during moratorium.</span></p><i><b>Compiled by S. Basavaraj, Daksha Legal&nbsp;</b></i></p><p><br></p><div><br></div>', '30f261e80523ac5e6055638146b5d4b7.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-07-08', 1, '', '', '2020-12-11 00:09:34', '2020-12-31 04:12:35'),
(211, 'CEbPV1TqNxjjQcFOnVq2vqVFo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for Specific Performance. Readiness and willingness.', '<p style=\"text-align: center; \"></p><p style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>Suit for Specific Performance. Readiness and willingness.<br></b></span><b style=\"font-size: 0.875rem;\">C.S. Venkatesh v. A.S.C. Murthy, (2020) 3 SCC 280 : (2020) 2 SCC (Civ) 90, at page 285<br></b><b style=\"font-size: 0.875rem;\"><br>Judgment Link.<br></b><a href=\"https://main.sci.gov.in/supremecourt/2007/553/553_2007_14_1501_20377_Judgement_07-Feb-2020.pdf\" target=\"_blank\" style=\"background-color: rgb(255, 255, 255); font-size: 0.875rem;\">https://main.sci.gov.in/supremecourt/2007/553/553_2007_14_1501_20377_Judgement_07-Feb-2020.pdf</a></p><span style=\"font-size: 1.3125rem;\"><p style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem; text-align: left; font-weight: bold;\">Relevant paragraphs:</b><span style=\"font-size: 1.3125rem; text-align: left;\">&nbsp;</span><br></p><p style=\"\"><span style=\"font-size: 1.3125rem;\">13. Execution of the sale deed and the deed of reconveyance are not in dispute. According to the plaintiff, he could not pay the interest except for two months after the execution of the sale deed and that the understanding between the parties was that the defendants need not pay any rent and the plaintiff need not pay the interest on the amount advanced by them to the plaintiff. It was contended that sale deed was executed to ensure prompt payment of the amounts. But a reading of the sale deed marked at Ext. P-8, along with other surrounding circumstances, would clearly indicate that it is an outright sale.<br></span><span style=\"font-size: 0.875rem;\"><br>14. It is settled that the real character of the transaction has to be ascertained from the provisions of the documents viewed in the light of surrounding circumstances. Since two documents were executed on the same day, the transaction cannot be a mortgage by way of conditional sale in view of the express provisions contained in Section 58(c) of the Transfer of Property Act, 1882. A perusal of the recitals contained in the sale deed at Ext. P-8 shows that the property was agreed to be sold absolutely for a total consideration of Rs 35,000. The plaintiff has also stated that since possession has already been delivered earlier under a deed of mortgage, delivery of possession under this document does not arise. It was further stated that henceforth neither himself nor his heirs have any right, title or interest in the property and that the plaintiff is entitled to water, air, right of easement, etc. concerning the property together with all rights, title and interest and right of disposal of the property. The defendant, his son and grandson, etc. unto posterity are entitled to enjoy the property without any obstruction or trouble either by the plaintiff or from anyone claiming under him. He has delivered the possession certificate issued by CITB and khata certificate for transfer of khata from Bangalore City Corporation. Thus, the language employed in this document is plain and unambiguous and the intention of the parties is also very clear from its recitals.&nbsp; Even the evidence led by the parties does not indicate to the contrary. Thus, a careful perusal of all the clauses of the sale deed and the evidence on record would clearly show that the intention of the parties was to make the transaction a sale. We are also of the view that since the execution of the reconveyance deed has already been established, question of holding the sale deed to be nominal cannot be accepted.<br></span><span style=\"font-size: 0.875rem;\"><br>15. The next question for consideration is in relation to compliance of Section 16(c) of the Act by the plaintiff. Though a question was raised before the trial court that there are no pleadings as regards the plaintiff’s readiness and willingness to perform the contract, the trial court has rightly held that there is sufficient compliance of Section 16(c) of the Act to the extent of pleadings. Therefore, the question to be considered is whether the plaintiff was ready and willing to perform his part of the contract.<br></span><span style=\"font-size: 0.875rem;\">16. The words “ready and willing” imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract.<br></span><span style=\"font-size: 0.875rem;\"><br>17. In N.P. Thirugnanam v. R. Jagan Mohan Rao2, it was held that continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant of the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior to and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must necessarily be proved to be available.<br></span><span style=\"font-size: 0.875rem;\"><br>18. In Pushparani S. Sundaram v. Pauline Manomani James3, this Court has held that inference of readiness and willingness could be drawn from the conduct of the plaintiff and the totality of circumstances in a particular case. It was held thus: (SCC p. 584, para 5)<br></span><span style=\"font-size: 0.875rem;\">“5. … So far these being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved.”<br></span><span style=\"font-size: 0.875rem;\"><br>19. Similar view has been taken by this Court in Manjunath Anandappa v. Tammanasa4 and Pukhraj D. Jain v. G. Gopalakrishna5.<br></span><span style=\"font-size: 0.875rem;\"><br>20. The judgment of this Court in Umabai v. Nilkanth Dhondiba Chavan6 is almost similar to the case at hand where the plaintiff had filed a suit for specific performance of the agreement to re-convey property. The plea of the plaintiff was that the transaction was one of mortgage and the sale stood redeemed and the plaintiff was discharged from the debt and he was ready to pay the defendant the amount for the property only in the alternative that the plea of mortgage was not accepted by the Court, would show that his readiness was conditional. The plaintiff did not have any income and could not raise the amount required for repurchase of the property. In the totality of the circumstances, it was held that the plaintiff was not ready and willing to perform the contract. The conditions laid for the specific performance of the contract are in para 30, which is as under: (SCC p. 256)<br></span><span style=\"font-size: 0.875rem;\">“30. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the respondent-plaintiffs were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in-chief would not suffice. The conduct of the respondent-plaintiffs must be judged having regard to the entirety of the pleadings as also the evidence brought on record.”<br></span><span style=\"font-size: 0.875rem;\"><br>21. In the instant case, the plaintiff has alleged that he was ready to pay Rs 35,000 to the defendants and called upon them to execute the re-conveyance deed. However, in para 11 of the plaint it is pleaded that the plaintiff was running contract business wherein he suffered heavy loss and as such he gave up the business. It is also pleaded that at present the plaintiff has no business or profession and has no source of income. He has no property, either movable or immovable. Mere plea that he is ready to pay the consideration, without any material to substantiate this plea, cannot be accepted. It is not necessary for the plaintiff to produce ready money, but it is mandatory on his part to prove that he has the means to generate the consideration amount. Except the statement of PW 1, there is absolutely no evidence to show that the plaintiff has the means&nbsp; to make arrangements for payment of consideration under the reconveyance agreement.<br></span><span style=\"font-size: 0.875rem;\"><br>22. It is relevant to state here that before filing the suit, the plaintiff had filed an application before the competent authority under the Karnataka Debt Relief Act seeking extinguishment of the debt and delivery of the property back to him. No doubt, the application was dismissed by the authority. But the fact remains that the intention of the plaintiff was not to pay the amount as per the reconveyance agreement.<br></span><span style=\"font-size: 0.875rem;\"><br>23. The deed of reconveyance, contains a clause for payment of interest on the consideration amount of Rs 35,000. However, the plaintiff has pleaded that there is no agreement to pay the interest. This shows that the plaintiff was not ready to perform his part of the obligation as per the agreement. Further, the plaintiff had mortgaged the property with the bank and the bank had obtained an award against the plaintiff. When the suit property was put up for auction, the defendants paid the entire amount to the bank which was payable by the plaintiff under this award. This aspect also indicates the conduct of the plaintiff.<br></span><span style=\"font-size: 0.875rem;\"><br>24. Taking an overall view of the matter, the trial court has rightly held that the plaintiff was not ready and willing to perform his part of the contract. The High Court, in our view, was not justified in reversing the well-reasoned judgment of the trial court.<br></span><i style=\"font-weight: bold;\"><br>Compiled by S. Basavaraj, Daksha Legal.&nbsp;</i></p><p></p><p></p></span><p></p><h4><b></b></h4><p><br></p>', 'e696b1fba388fbd9062476e5fa1930bc.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-10', 1, '', '', '2020-12-11 00:23:36', '2020-12-31 04:05:25'),
(212, 'AOqr5gNAXPNsNhZ2O5VXzehAz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for specific performance. Limitation starts after quashing of acquisition proceedings at the instance of the purchaser. ', '<p></p><h4></h4><p style=\"text-align: center; \"></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Suit for specific performance. Limitation starts after quashing of acquisition proceedings at the instance of the purchaser.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Vundavalli Ratna Manikyam v. V.P.P.R.N. Prasada Rao, (2020) 3 SCC 289</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b><br>Judgment Link</b></span></div><div style=\"text-align: justify;\"><a href=\"https://main.sci.gov.in/supremecourt/2014/40219/40219_2014_3_6_20320_Judgement_06-Feb-2020.pdf\" target=\"_blank\" style=\"background-color: rgb(255, 255, 255); font-size: 0.875rem;\">https://main.sci.gov.in/supremecourt/2014/40219/40219_2014_3_6_20320_Judgement_06-Feb-2020.pdf</a><a href=\"https://main.sci.gov.in/supremecourt/2014/40219/40219_2014_3_6_20320_Judgement_06-Feb-2020.pdf\" target=\"_blank\"><br></a></div><span style=\"font-size: 1.3125rem;\"><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">6.1. At the outset, it is required to be noted that the original plaintiff instituted the suit for specific performance of agreement to sell dated 7-5-1981 (Ext. A-1). It is not in dispute that under the agreement to sell dated 7-5-1981, the sale deed was to be executed within a period of four months from the date of execution of agreement to sell i.e. 7-5-1981. However, thereafter time was extended by a further period of eight months i.e. up to 6-5-1982. However, before any further steps could be taken by the plaintiff and the original vendor, the suit property was subjected to the acquisition by the State Government. It was the plaintiff who made a representation to the Assistant Collector and requested for deletion of the property from the acquisition. A similar representation was made by the original vendor also. It is required to be noted that in the representations both the vendor and the vendee specifically stated that the land in question has been sold in favour of the plaintiff and that he is in possession. Therefore, the original vendor as such admitted the execution of the agreement to sell dated 7-5-1981 as well as handing over the possession of the suit property to the plaintiff. Therefore, the learned trial court as such rightly believed the execution of the agreement to sell dated 7-5-1981 as well as handing over of possession to the plaintiff. The same is rightly confirmed by the High Court.</span></div></span><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">6.2. However, the trial court dismissed the suit solely on the ground that the suit for specific performance was barred by limitation applying Article 54 of the Limitation Act. On the other hand, it was the specific case on behalf of the plaintiff that in the facts and circumstances of the case, Article 113 of the Limitation Act shall be applicable as the suit was filed within a period of three years when the right to sue accrued. According to the plaintiff, the right to sue accrued when the plaintiff served a notice upon the defendants to execute the sale deed and the defendants refused to execute the sale deed. At this stage, it is required to be noted that under the agreement to sell it was for the vendor to settle all the disputes in the property. As the land in question was subjected to the acquisition and thereafter the acquisition proceedings came to be quashed and set aside at the instance of the plaintiff in the year 1984-1985 and thereafter the plaintiff served a legal notice upon the defendants on 20-1-1986 calling upon the defendants to execute the sale deed which came to be refused by reply notice dated 31-1-1986 and thereafter the suit for specific performance was preferred, as rightly observed by the High Court, Article 113 of the Limitation Act would be applicable and not Article 54 of the Limitation Act as applied by the learned trial court. We are in complete agreement with the view taken by the High Court in applying Article 113 of the Limitation Act. As observed hereinabove, the learned trial court dismissed the suit solely on the ground that the suit is barred by limitation considering Article 54 of the Limitation Act though all other findings with respect to the execution of the agreement to sell, the plaintiff was put in possession, etc. were held to be in favour of the plaintiff.</span></div> <p style=\"text-align: justify;\"><b><br></b><i style=\"font-size: 0.875rem;\"><b>Compiled by S. Basavaraj, Daksha Legal.&nbsp;</b></i></p><p></p><p></p><p><b></b></p><p></p><p><br></p><p><br></p><p><br></p><p></p>', '3057ff02c478a87c97087ff975f8fdb4.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-10', 1, '', '', '2020-12-11 00:32:08', '2020-12-31 04:00:11'),
(213, 'wUFNsmvjoOXMdLtt0CsQPVRpz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\"State Government\" - Meaning. Chief Minister can be construed as such.', '<h3><div style=\"text-align: center;\"><span style=\"font-size: 1.53125rem;\">\"State Government\" - Meaning. Chief Minister can be construed as such.  </span><span style=\"font-size: 1.53125rem;\">In our constitutional scheme, the Chief Minister of the State acts as a limb of the Government. Resignation addressed to Chief Minister is a resignation addressed to the State Government. - Karnataka High Court</span></div></h3><h4><br></h4><h4>Dr. M. Sudheendra Rao vs State of Karnataka and another. Writ Petition 7222 /2020, Decided on 17 July 2020, </h4><h4>Judgment link: </h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/335497/1/WP7222-20-17-07-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/335497/1/WP7222-20-17-07-2020.pdf</a></h4><p><br></p><h4>Held: 10 (f) Mr.Ashok Haranahalli is more than justified in contending that, to understand the meaning of \"State Government\" employed in Section 5(4) of the 1974 Act and its functional aspects, one has to advert to the constitutional scheme arising inter alia from Articles 53, 74, 154, 163 & 361 of the Constitution; our Constitution although deals with the Union and the State Executive separately, the provisions relating thereto follow a common pattern; the Constitution divides the subject under four sub-heads viz., the Chief Executive, the Council of Ministers, the Law Officers and the Conduct of Business; the President is the chief executive of the Union of India and in him vests the executive power of the Union vide Articles 52 & 53; similarly, at the Provincial level, the Governor is the chief executive of the State and it\'s executive power is vested in him vide Articles 153 & 154; Article 361 provides absolute immunity to both these high constitutional functionaries, for the exercise and performance of the powers & duties of their offices because neither the President nor the Governor exercises the executive functions individually or personally; the exercise of the executive power is a formally function of the President or the Governor as the case may be; in order to aid & advise the President in the exercise of his function, Article 74(1) provides for a Council of Ministers with the Prime Minister at the head; similarly, at the State level Article 163 provides for a Council of Ministers with the Chief Minister at the head; both these Articles relate to the conduct of  business of the Government; </h4><h4><br>(g) It is pertinent to mention that the Executive power of the Union or the State is described by the Apex Court in Ram Jawaya Kapur Vs. State of Punjab, AIR 1955 SC 549, ordinarily as being \"the residue of Governmental functions that remain after legislative & judicial functions are taken away\" and that they necessarily include the execution of the laws; Mr.H.M. Seervai in his \"Constitutional Law of India\", 4th Edition, Volume 2 (Tripathi Publication) at Page 2042 states \"...according to Dr.Ambedkar, ………….. the President of India was bound to accept the advice of his Ministers...\" At pages 2034 & 2036 of the same Volume, Mr.Seervai has churned out the ratio decidendi of Apex Court decisions (a set of two) in Samsher Singh Vs. State of Punjab, (1974) 2 SCC 831 vociferously pressed into service by Mr.Haranahalli; only the relevant ones to the case in hand are reproduced below:</h4><h4><br>(g) It is pertinent to mention that the Executive power of the Union or the State is described by the Apex Court in Ram Jawaya Kapur Vs. State of Punjab, AIR 1955 SC 549, ordinarily as being \"the residue of Governmental functions that remain after legislative & judicial functions are taken away\" and that they necessarily include the execution of the laws; Mr.H.M. Seervai in his \"Constitutional Law of India\", 4th Edition, Volume 2 (Tripathi Publication) at Page 2042 states \"...according to Dr.Ambedkar, ………….. the President of India was bound to accept the advice of his Ministers...\" At pages 2034 & 2036 of the same Volume, Mr.Seervai has churned out the ratio decidendi of Apex Court decisions (a set of two) in Samsher Singh Vs. State of Punjab, (1974) 2 SCC 831 vociferously pressed into service by Mr.Haranahalli; only the relevant ones to the case in hand are reproduced below:</h4><h4>(b) It is a fundamental principle of English constitutional law that the Sovereign does not act on his own responsibility but on the advice of his Ministers who accept responsibility and who command the confidence of the House of Commons.  This principle of English constitutional law is embodied in our Constitution.</h4><h4>(c) It follows from the British form of Parliamentary or Cabinet Govt. that the President and the Governors are the formal or Constitutional heads of the Union and the States and they must act with the aid and advice of the Council of Ministers except where a contrary provision is made by the Constitution.\"</h4><h4>(h) Mr.Haranahalli heavily banks upon another recent decision in A.A. Padmanabhan Vs. State of Kerala, (2018) 4 SCC 537 wherein, the highest Court of the country having surveyed the growth of this branch of law has thus observed at para 16: \"...Except the discretionary functions of the Governor, he does not exercise any executive functions individually or personally. When a Minister takes an action according to the Rules of Business, it is both in substance and in form the action of the Governor...\"Both Mr.Dhyan Chinnappa and Mr.Ashok Haranahalli take the court through the provisions of Karnataka Government (Transaction of Business) Rules, 1977 in support of their contention that the subject matter in question falls within the domain of the Chief Minister; item 15 in II Schedule to these Rules puts into the hands of the Chief Minister, the matters relating to appointment inter alia to the post of \"Chairman and Members of any other Commission, Authority, Tribunal or Committees created by Statute\"; the text & context of this provision which is generic in nature, the word \"appointment\" employed therein needs to be understood to include inter alia resignation of the appointee, as well; this apart, Rule 15(1) of 1977 Rules vests prerogative powers in the Chief Minister to take decisions even in respect of matters of business that normally belong to the domain of other Ministers as per the 1977 Rules; the said Rule reads:  </h4><h4><br>\"15. (1) The Chief Minister may call for papers from any Department and express his views and also tender advise on any matter coming within the purview of the business allocated to any Minister.\"  </h4><h4><br>(i)The text & context of the relevant constitutional provisions as interpreted in Samsher Singh supra, coupled with the provisions of the 1977 Rules show the prominent position assigned to the Chief Minister of the State; true it is, that the Chief Minister is not the manifestation of the State unlike the King in England; but he acts as a limb of the Government, is not legally disputable; therefore, the letter of resignation addressed to the \"Hon\'ble Chief Minister, Government of Karnataka\" can be safely construed as the one addressed to the “State Government” in terms of section 5(4) of the 1974 Act; an argument to the contrary falls foul of the constitutional scheme as consistently articulated by the Apex Court in a catena of decisions including Samsher Singh and A.A. Padmanabhan, supra.</h4><div><br></div>', 'aa204c014e650e578cb664efb3ed35b8.jpeg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-07-17', 1, '', '', '2020-12-11 04:28:20', '2020-12-11 04:30:35'),
(214, 'a6GBeHvLZY5ycqSixlqpTaD89', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Family Arrangement. Courts have to adopt liberal approach in interpreting.  ', '<h4></h4><p style=\"text-align: center;\"></p><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\"><span style=\"font-size: 1.3125rem;\">&nbsp;</span><span style=\"font-size: 1.3125rem;\">Family Arrangement. Liberal approach. Courts have to lean in favour of upholding a family arrangement instead of disturbing the same on technical grounds. Even where the family arrangement suffers from legal lacuna or formal defect, the rule of estoppel is invoked to uphold the family arrangement. Supreme Court 31 July 2020.</span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Ravinder Kaur Grewal &amp; Ors vs Manjit Kaur &amp; Ors., Civil Appeal 7764/2014, Decided on 31 July 2020, Justice A.M. Khanwilkar &amp; Justice Dinesh Maheshwari</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br><b>Judgment link:</b></span></div> <div style=\"text-align: justify;\"><a href=\"https://main.sci.gov.in/supremecourt/2008/4680/4680_2008_33_1501_23189_Judgement_31-Jul-2020.pdf\" target=\"_blank\" style=\"background-color: rgb(255, 255, 255); font-size: 0.875rem;\">https://main.sci.gov.in/supremecourt/2008/4680/4680_2008_33_1501_23189_Judgement_31-Jul-2020.pdf</a><a href=\"https://main.sci.gov.in/supremecourt/2008/4680/4680_2008_33_1501_23189_Judgement_31-Jul-2020.pdf\" target=\"_blank\"><br></a></div><br><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Held: <br></b><span style=\"font-size: 0.875rem;\">16. ……. The settled legal position is that when by virtue of a family settlement or arrangement, members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once and for all in order to buy peace of mind and bring about complete harmony and goodwill in the family, such arrangement ought to be governed by a special equity peculiar to them and would be enforced if honestly made. The object of such arrangement is to protect the family from long drawn litigation or perpetual strives which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family, as observed in Kale &amp; Ors. vs. Deputy Director of Consolidation &amp; Ors. (1976) 3 SCC 119. In the said reported decision, a three¬ Judge Bench of this Court had observed thus:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">“9.….. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term “family” has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. …..”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">In paragraph 10 of the said decision, the Court has delineated the contours of essentials of a family settlement as follows: ¬</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br>“10. In other words to put the binding effect and the essentials of a family settlement in a concretised form the matter may be reduced into the form of the following propositions:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(3) The family arrangement may be even oral in which case no registration is necessary; (4) It is well¬settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.”</span></div><br><i><b>Compiled by, S.Basavaraj, Daksha Legal</b></i><p></p><p><br></p>', 'dfd092868b397a7aeb53a9f560a631f4.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-07-31', 1, '', '', '2020-12-11 04:37:48', '2020-12-31 03:50:37'),
(215, '4ByACiF0WS98wQEro3o06Vo4T', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mysore Religious and Charitable Inams Abolition Act. Applies even to non agricultural lands. ', '<p>Mysore (Religious and Charitable) Inams Abolition Act, 1955. The Act applies not only to agricultural lands but also to non-agricultural lands such as uncultivated lands, agricultural lands used for non-agricultural purposes or unconnected with the agriculture as well as to lands on which buildings have been constructed either by the inamdar or by a tenant, as the case may be. Karnataka High Court 29 July 2020.<br>M/s. S.M. Kannappa Automobiles &amp; Others vs Koladamatt Mahasamsthana &amp; others, Writ Appeal 1061/2013 &amp; Writ Appeal 872/2013 (KLRA), Decided on 29 July 2020, Justice B.V. Nagarathna &amp; Justice Jyoti Mulimani<br><b><br>Judgment link:</b><br> <a href=\"https://karnatakajudiciary.kar.nic.in/noticeBoard/wp-1061-2013-connected.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/noticeBoard/wp-1061-2013-connected.pdf</a><br><br><b>Held: <br></b>114. On a conspectus reading of the aforesaid provisions, it is clear that the Act is not applicable only to inam lands which are agricultural in nature, but also applies to non-agricultural lands such as uncultivated lands, agricultural lands used for non-agricultural purposes or unconnected with the agriculture as well as to lands on which buildings have been constructed either by the inamdar or by a tenant, as the case may be.<br><br>115. In fact, by way of an amendment, it has been clarified by insertion of Section 31-A of the Act that the Karnataka Tenancy Act, 1952 [referred to as “the Tenancy Act, 1952”], for the time being in force shall, subject to the provisions of the Act, be applicable and govern the relations of the persons who are entitled to be registered as occupants under Sections 4, 5, 7 and 8 and to agriculturists who hold lands on lease from such persons as tenants immediately before the date of vesting. The aforesaid provision does not include Section 6 of the Act. This is because Sections 4 and 5 deal with kadim tenants and permanent tenants, who are agricultural tenants, but every other tenant is covered within the scope and ambit of Section 6 of the Act, inter alia, tenants of uncultivated land or converted lands. Therefore, while considering the rights of kadim tenants or permanent tenants, the Tenancy Act, 1952 would have to be considered subject to the provisions of the Act. But, the Tenancy Act, 1952 would not be applicable to tenants of non-agricultural lands or tenants of lands used for any purpose unconnected with agriculture. Hence, Section 31-A also clarifies the fact that the Act in its applicability is not restricted to only agricultural lands. Hence, learned Single Judge was not right in holding that the Act applies only to agricultural lands and to tenancies created on such lands only.<br><br><i><b>Compiled by, S.Basavaraj, Daksha Legal</b></i></p><p><br></p>', '2548762e75c85b3bf83f9f341c853703.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-07-29', 1, '', '', '2020-12-11 04:41:52', '2020-12-31 03:47:47'),
(216, '1ta26EKsbLrHxvEz1LbZ8x3KM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'CPC. When plaint is returned same to be treated as fresh plaint. ', '<p style=\"margin-bottom:0cm;margin-bottom:.0001pt\"></p><div style=\"text-align: justify;\"><span style=\"font-size: 16px; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;\"=\"\">Civil Procedure Code. Order 7 Rule 10 &amp; 10A. After return of plaint and its presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted afresh even if it stood concluded before the earlier court. Oriental Insurance Company Ltd vs Tejparas Associates and Exports Pvt Ltd overruled.</span></div><font face=\"Times New Roman, serif\"><div style=\"text-align: justify;\"><span style=\"font-size: 16px;\">Supreme Court 5 August 2020.</span></div></font><font face=\"Times New Roman, serif\"><div style=\"text-align: justify;\"><span style=\"font-size: 16px;\">M/s. EXL Careers and Anor vs Frankfinn Aviatin Services Pvt Ltd.</span></div></font><font face=\"Times New Roman, serif\"><div style=\"text-align: justify;\"><span style=\"font-size: 16px;\">Civil Appeal 2904/2020</span></div></font><font face=\"Times New Roman, serif\"><div style=\"text-align: justify;\"><span style=\"font-size: 16px;\">Decided on 5 August 2020</span></div></font><font face=\"Times New Roman, serif\"><div style=\"text-align: justify;\"><span style=\"font-size: 16px;\">Justice R.F. Nariman</span></div></font><font face=\"Times New Roman, serif\"><div style=\"text-align: justify;\"><span style=\"font-size: 16px;\">Justice Navin Sinha</span></div></font><font face=\"Times New Roman, serif\"><div style=\"text-align: justify;\"><span style=\"font-size: 16px;\">Justice Indira Banerjee</span></div></font><font face=\"Times New Roman, serif\"><div style=\"text-align: justify;\"><span style=\"font-size: 16px;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 16px;\"><b>Judgement Link:<br></b></span><p><span style=\"font-size: 16px;\">https://main.sci.gov.in/supremecourt/2018/23730/23730_2018_34_1502_23302_Judgement_05-Aug-2020.pdf</span></p></div></font><font face=\"Times New Roman, serif\"><div style=\"text-align: justify;\"><span style=\"font-size: 16px;\"><b>Held: </b>Para 2. The present appeal has been placed before us on a reference by a two Judge Bench opining a perceived conflict between two Division Bench decisions in Joginder Tuli vs. S.L. Bhatia, (1997) 1 SCC 502 and Oil and Natural Gas Corporation Ltd. vs. Modern Construction &amp; Co., (2014) 1 SCC 648. The question of law we are required to answer is that if a plaint is returned under Order VII Rule 10 and 10A of the Code of Civil Procedure 1908, for presentation in the court in which it should have been instituted, whether the suit shall proceed de novo or will it continue from the stage where it was pending before the court at the time of returning of the plaint.</span></div></font><font face=\"Times New Roman, serif\"><div style=\"text-align: justify;\"><span style=\"font-size: 16px;\">Modern Construction, referred to the consistent position in law by reference to Ramdutt Ramkissen Dass vs. E.D. Sassoon &amp; Co., Amar Chand Inani vs. The Union of India, Hanamanthappa vs. Chandrashekharappa, (1997) 9 SCC 688, Harshad Chimanlal Modi (II) (supra) and after also noticing Joginder Tuli (supra), arrived at the conclusion as follows:</span></div></font><font face=\"Times New Roman, serif\"><div style=\"text-align: justify;\"><span style=\"font-size: 16px;\">“17. Thus, in view of the above, the law on the issue can be summarised to the effect that if the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order 7 Rule 10 CPC and the plaintiff can present it before the court having competent jurisdiction. In such a factual matrix, the plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation Act, and may also seek adjustment of court fee paid in that court. However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the same.”</span></div></font><font face=\"Times New Roman, serif\"><div style=\"text-align: justify;\"><span style=\"font-size: 16px;\">Joginder Tuli was also noticed in Harshad Chimanlal Modi (II) but distinguished on its own facts.</span></div></font><font face=\"Times New Roman, serif\"><div style=\"text-align: justify;\"><span style=\"font-size: 16px;\">We find no contradiction in the law as laid down in Modern Construction pronounced after consideration of the law and precedents requiring reconsideration in view of any conflict with Joginder Tuli . Modern Construction lays down the correct law. We answer the reference accordingly.</span></div></font><font face=\"Times New Roman, serif\"><div style=\"text-align: justify;\"><span style=\"font-size: 16px;\">For all these reasons, we hold that Oriental Insurance Co. does not lay down the correct law and over¬rule the same.</span></div></font><font face=\"Times New Roman, serif\"><div style=\"text-align: justify;\"><span style=\"font-size: 16px;\"><b><br>Compiled by, S.Basavaraj, Daksha Legal</b></span></div></font><p></p><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt\"><br></h4><p>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n</p>', '83e7f2cd8a4b187cf2d8d4ca30c3c0b5.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-08-05', 1, '', '', '2020-12-11 04:47:03', '2020-12-31 03:45:35');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(217, 'K9t2aKcFxDHh7iymVGv5n2R9h', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Right to Property. Planning Authority cannot deprive owner of private property without acquisition or purchase. Supreme Court. ', '<p style=\"text-align: center; \"></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem; font-family: var(--bs-font-sans-serif);\"><b>Hari Krishna Mandir Trust vs State of Maharastra and others. </b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem; font-family: var(--bs-font-sans-serif);\"><b>Civil Appeal 6156 /2013. Decided on 7 August 2020. </b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem; font-family: var(--bs-font-sans-serif);\"><b>Justice Indu Malhotra and Justice Indira Banerjee</b></span></div><p></p><h4><p><b><span style=\"font-size: 1.3125rem; text-align: justify; font-family: var(--bs-font-sans-serif);\"> 96. The right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300A and a human right as observed by this Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and Others (2008) 4 SCC 649 (para 42). In view of the mandate of Article 300A of the Constitution of India, no person is to be deprived of his property save by the authority of law.</span><br></b></p><div style=\"text-align: justify;\"><b><br></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>97. Article 300A of the Constitution of India embodies the doctrine of eminent domain which comprises two parts, (i) possession of property in the public interest; and (ii) payment of reasonable compensation. As held by this Court in a plethora of decisions, including State of Bihar and Others v. Project Uchcha Vidya, Sikshak Sangh and Others (2006) 2 SCC 545, 574 (para 69); Jelubhai Nanbhai Khachar and Others v. State of Gujarat and Anr. (1995) Suppl. 1 SCC 596; Bishambhar Dayal Chandra Mohan and Ors. v. State of Uttar Pradesh and Others (1982) 1 SCC 39, the State possesses the power to take or control the property of the owner for the benefit of public. When, however, a State so acts it is obliged to compensate the injury by making just compensation as held by this Court in Girnar Traders v. State of Maharashtra and Others (2007) 7 SCC 555 (paras 55 and 56).</b></span></div><b><br></b><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>98…..The right to property includes any proprietary interest hereditary interest in the right of management of a religion endowment, as well as anything acquired by inheritance. However, laudable be the purpose, the Executivecannot deprive a person of his property without specific legal authority, which can be established in a court of law.</b></span></div><b><br></b><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>99. In case of dispossession except under the authority of law, the owner might obtain restoration of possession by a proceeding for Mandamus against the Government as held by this Court in Wazir Chand v. State of Himachal Pradesh AIR 1954 SC 415. Admittedly, no compensation has been offered or paid to the appellant Trust. As observed by this Court in K.T. Plantation Private Limited and Anr. v. State of Karnataka (2011) 9 SCC 1 , even though the right to claim compensation or the obligation of the State to pay compensation to a person who is deprived of his property is not expressly provided in Article 300A of the Constitution, it is inbuilt in the Article. The State seeking to acquire private property for public purpose cannot say that no compensation shall be paid.</b></span></div><div style=\"text-align: justify;\"><b><br></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>99. The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred.</b></span></div><b><br></b><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>100.The Court is duty bound to issue a writ of Mandamus for enforcement of a public duty. There can be no doubt that an important requisite for issue of Mandamus is that Mandamus lies to enforce a legal duty. This duty must be shown to exist towards the applicant. A statutory duty must exist before it can be enforced through Mandamus. Unless a statutory duty or right can be read in the provision, Mandamus cannot be issued to enforce the same.</b></span></div><p style=\"text-align: justify;\"><b><br><span style=\"font-size: 1.3125rem;\">101. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner\'s right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. </span></b></p></h4>', '4e9fb47a43846511d7e996b9bc9dc607.jpeg', 'dfc5bec124cb50e5252b7f138fc5481f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-24', 1, '', '', '2020-12-11 04:52:45', '2023-01-24 13:37:43'),
(2596, 'LhT808ps82hR9utTNwZXqKEYr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“It is better to wear out; than rust out’.  Gender neutral provision i.e. Section 24 of the Hindu Marriage Act cannot be used by lethargic husband to seek maintenance from wife. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>N. Girish Vs M. Kusuma.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 24226 of 2022 decided on 10 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner / husband is before this Court calling in\r\nquestion order dated 31-10-2022 rendered by the 4th Additional\r\nSenior Civil Judge, Bangalore Rural allowing I.A.No.1 filed by\r\nthe respondent /wife under Section 24 of the Hindu Marriage\r\nAct (‘the Act’ for short) seeking maintenance and litigation\r\nexpenses in M.C.No.78 of 2021.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 2. Brief facts that leads the petitioner to this Court in\r\nthe subject petition, as borne out from the pleadings are as\r\nfollows:-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The petitioner and the respondent are husband and wife\r\nwho get married on 06-02-2017. On their relationship turning\r\nsour, it appears that the respondent/wife leaves the\r\nmatrimonial house and begins to reside with her parents. Later\r\nthe husband institutes a petition under Section 13 (1)((i-a) and\r\n(i-b) of the Act in M.C.No.78 of 2021 seeking a decree of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">divorce against the wife. The wife in turn has instituted\r\nproceedings under Section 9 of the Act seeking restitution of\r\nconjugal rights. The issue in the case at hand is not with regard\r\nto merit of claims of the petitioner or the respondent qua their\r\nmarriage.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">8. The afore-narrated facts are not in dispute and\r\ntherefore require no reiteration. Though the challenge is to the\r\naward of maintenance to the wife, by the husband, vehement\r\nsubmissions are made with regard to the husband being unable\r\nto maintain his wife and requiring maintenance himself from\r\nthe wife, I deem it appropriate to consider the same noticing\r\nthe provision under which maintenance is claimed under the\r\nAct. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 24 directs that in any proceeding under the Act if\r\nit appears to the Court that either the wife or the husband, as\r\nthe case would be, has no independent and sufficient income to\r\nsupport themselves, the Court may on an application filed by\r\nthe wife or the husband order payment of expenses of the\r\nproceedings and monthly maintenance as the court would deem\r\nreasonable. On a plain reading of Section 24 it depicts that the\r\nprovision is gender neutral. Maintenance pending proceedings, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">can be claimed either by the wife or the husband. But, whether\r\nit can be granted to the husband is what is to be considered.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. It is not in dispute that the petitioner is an able\r\nbodied man and does not suffer from any disability or infirmity.\r\nThat being the case, if maintenance is awarded to the husband\r\nas is claimed from the hands of the wife, merely because\r\nSection 24 of the Act is gender neutral for grant of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">maintenance, it would be promoting idleness notwithstanding\r\nthe fact that the husband has no impediment or handicap to\r\nearn. Merely because he has lost his job on the onset of Covid19, it cannot be held that he is incapable of earning.\r\nTherefore, it can be irrefutably concluded that the husband by\r\nhis own conduct has decided to lead a leisurely life by seeking\r\nmaintenance from the hands of the wife. In the considered\r\nview of this Court, such an application cannot be granted, as\r\nthe husband cannot afford to incapacitate himself and sustain\r\nan application under Section 24 of the Act to claim maintenance\r\nfrom the hands of the husband. This would be an anathema to\r\nthe spirit of Section 24 of the Act. Therefore, the husband\r\ncannot seek any maintenance unless he would demonstrate\r\nsuch disability either physical or mental which incapacitates him\r\nfrom earning money by finding a job for himself. It is in fact\r\nthe duty of an able bodied husband to maintain himself, the\r\nwife and the child, if any.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. The aforesaid view of mine, in this regard, is fortified\r\nby the judgment rendered by the Apex Court in the case of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ANJU GARG AND ANOTHER v. DEEPAK KUMAR GARG –\r\n2022 SCC OnLine SC 1314, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Apex Court holds that, if the husband is an able\r\nbodied man, he cannot project the plea that, he has no means\r\nto pay. It is necessary for any husband to earn by legitimate\r\nmeans and maintain the wife and, the children, if any.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. Therefore, I do not find any warrant of interference\r\nwith the order passed by the concerned Court directing\r\nmaintenance to be paid by the husband to the wife and\r\nrejection of the claim of the petitioner/husband that he is in\r\nneed of maintenance from the hands of the wife. The\r\npetitioner/husband must remember that ‘it is better to wear\r\nout; than rust out’.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n 15. In the result, the petition lacking in merit, stands\r\ndismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '554a8c9f7a83e5875396b2e07d4f946d.jpeg', '31f9dbf0777970e7af1c0cbe175e018b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-25', 1, '', '', '2023-01-24 14:58:23', '2023-01-25 06:55:06'),
(219, '01eobXt4cTPOhMY8oo3WCIB9j', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Housing construction or building activity falls within Service under the Consumer Protection Act 1986', '<h4></h4><p></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Consumer Protection Act, 1986. Developer and Customer. Distinction between “simple transfer of piece of land” and “housing construction or building activity”. Second category falls within “Service” under the Act. Terms of a rate which is prescribed in an unfair bargain will not prevent Consumer Forum consumer forum from awarding just and reasonable compensation. Supreme Court 24:8:2020.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Arifur Rahman Khan and Aleya Sultana and Ors vs DLF Southern Homes Pvt Ltd (now Known as BEGUR OMR Homes Pvt. Ltd.) and Ors. Civil Appeal No. 6239 of 2019. Decided on 24 August 2020,Justice Dr. Dhananjaya Y Chandrachud and Justice K M Joseph.</span></div><p></p><h4><p><b>Judgment link:</b><br> </p><p><a href=\"https://main.sci.gov.in/supremecourt/2019/27240/27240_2019_33_1501_23551_Judgement_24-Aug-2020.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/27240/27240_2019_33_1501_23551_Judgement_24-Aug-2020.pdf</a><br><br></p><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Para 36: It has been urged by the learned counsel of the developer that a consequence of the execution of the Deed of Conveyance in the present case is that the same ceases to be a transaction in the nature of “supply of services” covered under the CP Act 1986 and becomes a mere sale of immovable property which is not amenable to the jurisdiction of Consumer Fora. In Narne Construction (P) Ltd. v. Union of India (2012) 5 SCC 359 , this Court distinguished between a simple transfer of a piece of immovable property and housing construction or building activity carried out by a private or statutory body falling in the category of „service? within the meaning of Section 2 (1) (o) of the CP Act 1986. This Court held that:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“8. Having regard to the nature of transaction between the appellant Company and its customers involved much more than a simple transfer of a piece of immovable property it is clear the same constitutes “service” within the meaning of the Act. It was not the case that the appellant Company was selling the given property with all its advantages and/or disadvantages on “as is where is” basis, as was the position in UT Chandigarh Admn v. Amarjeet Singh. It is a case where a clear-cut assurance was made to the purchasers as to the nature and extent of development that would be carried out by the appellant Company as a part of package under which a sale of fully developed plots with assured facilities was made in favour of the purchasers for valuable consideration. To the extent the transfer of site with developments in the manner and to the extent indicated earlier was a part of the transaction, the appellant Company has indeed undertaken to provide a service. Any deficiency or defect in such service would make it accountable before the competent Consumer Forum at the instance of consumers like the respondents.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The developer in the present case has undertaken to provide a service in the nature of developing residential flats with certain amenities and remains amenable to the jurisdiction of the Consumer Fora. Consequently, we are unable to subscribe to the view of the NCDRC that flat purchasers who obtained possession or executed Deeds of Conveyance have lost their right to make a claim for compensation for the delayed handing over of the flats.</span></div><i><div style=\"text-align: justify;\"><br></div><b>Compiled by, S.Basavaraj, Daksha Legal</b></i><p></p><p></p></h4><p><br></p>', 'd3c37c1abb9acad8825251c42fa49330.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-08-24', 1, '', '', '2020-12-11 05:24:14', '2020-12-31 03:37:23'),
(220, 'qPeG8VVtKNVqYQBcj1WAqWa2M', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'RTI. Candidate can seek evaluated answer scripts from Public Service Commission. ', '<p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Right to Information. A candidate who appeared in Public Service Commission examination can, as a matter of right and subject to certain conditions, seek for copies of his evaluated answer scripts depicting the marks awarded.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Right to Information. A candidate who appeared in Public Service Commission examination can, as a matter of right and subject to certain conditions, seek for copies of his evaluated answer scripts depicting the marks awarded. Karnataka High Court 26:8:2020.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The Karnataka Public Service Commission vs Vinay Kumar Ramaiah and another. Writ Petition 8676 /2020. Decided on 26 August 2020. Justice Suraj Govindraj.</span></div></p><p><b>Judgment link: </b><br><a href=\"https://karnatakajudiciary.kar.nic.in/noticeBoard/WP%208676-2020.pdf\" target=\"_blank\" style=\"\">https://karnatakajudiciary.kar.nic.in/noticeBoard/WP%208676-2020.pdf</a><br><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>Held:</b>&nbsp; Para 14. The findings are summarized as under:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">14.1. A candidate who has appeared for examination conducted by a public service commission can seek for copies of his own evaluated answer sripts along with the marks allotted to each question.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">14.2. An applicant cannot seek for copies of evaluated answer scripts of any other person apart from himself/herself.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">14.3. In order to make such an application, the applicant has to satisfy the parameters laid down by the Angesh Kumar’s.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">14.4. For seeking any such information, the application has to be made in the prescribed format and the prescribed fees are required to be paid.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">14.5. The Information Commission Central or State in the event of no public Information Officer being appointed can direct the public authority to take such steps as may be necessary for appointment of a public Information Officer.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">14.6. The Information Commission, Central or State cannot appoint a Public Information Officer of its own accord in the event of the direction not being followed.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">14.7. The Information Commission - State or Central has no power to remove or dismiss a public Information Officer already appointed by any public Authority for that organization.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">14.8. As per the scheme of RTI Act, 2005 or the Freedom of Information Act, 2002, there is no qualifications prescribed for a Public Information Officer.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">14.9. It is the discretion of the authority to appoint a competent person as a Public Information Officer.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">14.10. Taking into account that the Public Information Officer would be dealing with legal submissions where under the decisions of the High Court and even the Apex Court could be placed before the Public Information Officer for consideration in a manner of speaking the Public Information Officer would be discharging quasi judicial functions while accepting or rejecting the application for information. This aspect may be taken into consideration by the Legislature in its wisdom to formulate the requirements of qualification, if any, for the appointment of a person as a Public Information Officer.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Note: Conditions imposed in UPSC Vs. Angesh Kumar reported in (2018) 4 SCC 530 are extracted by the High Court in the following paragraphs.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">10.1.2. The applicant has to be a candidate in the exam.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">10.1.3. The applicant can only seek for his own answer scripts.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">10.1.4. The applicant is required to make an application in the prescribed form.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">10.1.5. The applicant is required to make payment of the due amounts for furnishing of the information pertaining to his evaluated and marked answer scripts.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">10.1.6. The information sought for should not come within the exceptions/exemptions under Section 8 of the RTI Act.</span></div><i style=\"\"><br><b>Compiled by , S.Basavaraj, Daksha Legal</b></i></p><p><br></p><h4><br></h4>', '61f8e2d1b8570d927626e33871c9ab50.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-08-26', 1, '', '', '2020-12-11 18:00:28', '2020-12-31 03:33:47'),
(221, 'EbilSGRyeb5DFWCQGL9OoX3bI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'IBC. Financial debt. Payment towards shares issued to third party is not a financial debt. ', '<p style=\"text-align: center; \"><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Insolvency and Bankruptcy Code, 2016. Payment received for shares duly issued to a third party at the request of the payee, is not a financial debt. Application under Section 7 of the IBC is NOT maintainable.&nbsp;</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">M/s. Radha Exports (India) Pvt Ltd vs K.P. Jayaram and another, Civil Appeal 7474 /2019. Decided on 28 August 2020. Justice Arun Mishra &amp; Justice Indira Banerjee.</span></div></p><p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>Judgment link: </b><br></span><a href=\"https://main.sci.gov.in/supremecourt/2019/33481/33481_2019_32_1502_23699_Judgement_28-Aug-2020.pdf\" target=\"_blank\" style=\"background-color: rgb(255, 255, 255); font-size: 0.875rem;\">https://main.sci.gov.in/supremecourt/2019/33481/33481_2019_32_1502_23699_Judgement_28-Aug-2020.pdf</a></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br>Held:&nbsp; Para 43. The definition of ‘financial debt’ in Section 5(8) makes it clear that ‘financial debt’ means a debt along with interest, if any, disbursed against the consideration for time value of money and would include money raised or borrowed against the payment of interest; amount raised by acceptance under any acceptance credit facility or its de-materialised equivalent; amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed; receivables sold or discounted other than any receivables sold on non-recourse basis or any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing. Explanation to Section 5(8) which relates to real estate projects is of no relevance in the facts and circumstances of this case. The payment received for shares, duly issued to a third party at the request of the payee as evident from official records, cannot be a debt, not to speak of financial debt. Shares of a company are transferable subject to restrictions, if any, in its Articles of Association and attract dividend when the company makes profits.</span></div><i><div style=\"text-align: justify;\"><i style=\"font-size: 0.875rem;\"><br><b>Compiled by: S.Basavaraj, Daksha Legal.</b></i></div></i></p><p style=\"text-align: justify;\"><br></p>', '519411e83a0cfe7a9db5ec217e04ae7d.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-08-28', 1, '', '', '2020-12-11 18:10:56', '2020-12-31 01:45:46'),
(222, 'xuYGGDWbZvnli0cPhnLzFYlnY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheating and Forgery. Matter pending in civil court on the same issue. Criminal proceedings cannot continue.', '<h4></h4><p style=\"text-align: justify; \"><p><span style=\"font-size: 1.3125rem;\"><b>Insolvency and Bankruptcy Code, 2016. Once an insolvency professional is appointed to manage company, erstwhile directors cannot litigate on behalf of the company. also see Party violating the interim order. Court may refuse to hear him on merits of the case. Karnataka High Court 4:9:2020.&nbsp;<br></b></span><br>M/s Alpine Wineries Pvt Ltd vs M/s. Pridhvi Asset Reconstruction. Writ Petition 1631 /2020. Decided on 4 September 2020. Justice P.S. Dinesh Kumar.</p><br></p><p><b>Judgment link:</b><br> <a href=\"https://karnatakajudiciary.kar.nic.in/noticeBoard/wp-1631-2020right-of-audience.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/noticeBoard/wp-1631-2020right-of-audience.pdf</a><br><br></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Held:&nbsp; Para 16. In the case of INNOVENTIVE INDUSTRIES LIMITED Vs. ICICI BANK AND ANOTHER (2018) 1 SCC 407, relied upon by Shri Jagadeesh, the Hon’ble Supreme Court has held that once the insolvency professional is appointed, the erstwhile Directors who are no longer in Management could not have maintained the appeal before the Supreme Court of India by holding thus:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">“11. Having heard the learned counsel for both the parties, we find substance in the plea taken by Shri Salve that the present appeal at the behest of the erstwhile Directors of the appellant is not maintainable. Dr. Singhvi stated that this is a technical point and he could move an application to amend the cause title stating that the erstwhile Directors do not represent the Company, but are filing the appeal as persons aggrieved by the impugned order as their management right of the Company has been taken away and as they are otherwise affected as shareholders of the Company. According to us, once an insolvency professional is appointed to manage the Company, the erstwhile Directors who are no longer in management, obviously cannot maintain an appeal on behalf of the Company. In the present case, the Company is the sole appellant. This being the case, the present appeal is obviously not maintainable. However, we are not inclined to dismiss the appeal on this score alone. Having heard both the learned counsel at some length, and because this is the very first application that has been moved under the Code, we thought it necessary to deliver a detailed judgment so that all Courts and Tribunals may take notice of a paradigm shift in the law. Entrenched managements are no longer allowed to continue in management if they cannot pay their debts.”</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">20. In PRESTIGE LIGHTS LTD., VS . STATE BANK OF INDIA (2007) 8 SCC 449, it is held that an order passed by competent court -interim or final - has to be obeyed without any reservation. If such order is disobeyed, court may refuse the party violating such order to hear him on merits. In that case, the order of the Court was not complied with by the petitioner therein. In this case, petitioner has given repeated assurances but not fulfilled them.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">21. Therefore, in the facts and circumstances of this case, keeping in view the conduct of the petitioner and the law laid down in INNOVENTIVE INDUSTRIES LIMITED, in the opinion of this Court, petitioner is not entitled for the discretionary relief under Article 226 of the Constitution of India.</span></div><br><b>Compiled by: S.Basavaraj, Daksha Legal.</b><p></p><div><br></div>', 'd44c49878ab381312c437b60d8611f47.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-09-04', 1, '', '', '2020-12-11 18:23:13', '2020-12-31 01:44:07'),
(223, 'ibvnX3Hdu0SyrBUtlwv5wLFCT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheating and Forgery. Matter pending in civil court on the same issue. Criminal proceedings cannot continue.', '<h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt\"><p><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Cheating and Forgery. Matter pending in\r\ncivil court on the same issue. Criminal proceedings cannot continue.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Indian Penal Code. Cheating\r\nand Forgery. When the issue regarding genuineness of the document is pending\r\nconsideration before the civil court, Criminal proceedings cannot continue on\r\nthe same issue. It would prejudice the interest of the parties understand or\r\ntaken by them in the civil suit. Criminal proceedings quashed.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Rajeshbhai Muljibhai Patel and\r\nothers vs State of Gujarat and others. (2020) 3 SCC 794</span></div></p><o:p>&nbsp;</o:p></h4><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p>\r\n\r\n\r\n\r\n\r\n\r\n</p>', '1728d125ec227f63829a4a8c0f62bdca.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-14', 1, '', '', '2020-12-11 18:27:19', '2020-12-31 01:41:24'),
(224, 'XjAUwUxrBaNT7fZDm4QGzNNgM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Polygamy among Muslims. Though lawful causes cruelty to first wife justifying her claim for divorce. ', '<p style=\"text-align: center; \"><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>Polygamy among Muslims. Though lawful, causes cruelty to first wife justifying her claim for divorce. Karnataka High Court.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Justice Krishna Dixit and Justice P. Krishna Bhat</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Yusufpatel vs Ramjanbi. MFA 201154/2018 disposed on 17 August 2020.&nbsp;</span></div><p style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br>Judgment Link:</span><span style=\"font-size: 21px;\"><br></span><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/339311/1/MFA201154-18-17-08-2020.pdf\" target=\"_blank\" style=\"font-size: 0.875rem; background-color: rgb(255, 255, 255);\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/339311/1/MFA201154-18-17-08-2020.pdf</a></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The Karnataka High Court (Justice Krishna Dixit and Justice P. Krishna Bhat) holds that though contracting a second marriage by a Muslim may be lawful, but is more often than not, causes enormous cruelty to the first wife justifying her claim for divorce .&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">“There is no dispute that Section 2 of the Dissolution of Muslim Marriages Act, 1939 recognizes \'cruelty of conduct of the husband as a ground for the dissolution of marriage at the instance of aggrieved \'woman married under Muslim law\'. It needs to be stated that \'marital cruelty\' as a concept, by its very nature defies definition; courts have emphasized that in the backdrop of spousal relationship, words, acts or conduct constituting cruelty are infinitely variable with the increasing complexities of modern life; no attempt at defining likely to succeed fully; merely because an act is lawful, it does not per se become justifiable in married life; for example, of course subject to all just exceptions, smoking and drinking are not unlawful; snoring too, is not, but still in certain circumstances they may amount to cruelty to a sensitive spouse; on the same analogy though contracting a second marriage by a Muslim may be lawful, but it more often than not, causes enormous cruelty to the first wife justifying her claim for divorce.” observes the High Court.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The High Court refers to and extracts from the judgment of Kerala High Court, Justice V.R. Krishna Iyer in Shahulameedu vs Subaida Beevi 1970 K.L.T. 4 on the right of a Muslim to practise polygamy under the Sheriat as follows: \"It follows from these passages that the Koranic injunction has to be understood in the perspective of prevalent unrestricted polygamy and in the context of the battle in which most males perished, leaving many females or orphans and that the holy prophet himself recognised the difficulty of treating two or more wives with equal justice and, in such a situation, directed that an individual should have only one wife. In short, the Koran enjoined monogamy upon Muslims and departure therefrom as an exception. That is why, in the true spirit of the Koran, a number of Muslim countries have codified the personal law wherein the practice of polygamy has been either totally prohibited or severely restricted. (Syria, Tunisia, Morocco, Pakisthan, Iran, the Islamic Republics of the Soviet Union are some of the Muslim countries to be remembered in this context.)\"&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The High Court also refers to and extracts from the Judgment of the Kerala High Court in Saidali K.H. vs V. Saleena, Mat Appeal No. 94/2007 disposed on 22:10:2008 (Justice Harun Ul Rashid ) \"“The practice of having more than one wife, though not totally prohibited, is discouraged by imposing stringent conditions making it almost impossible to keep more than one wife at a time. These stringent conditions were imposed on the man even during the life time of Prophet Mohammed. The concept of polygamy, limited to four, with restrictions was permissible during that time due to unavoidable facts and circumstances prevalent during the said period. Going by Quranic versions, permission to marry more than one woman, but not more than four was given at a time when there were lots of orphans, widows and captives of war who were unable to lead a dignified life and their strength was far more than the men which gave rise to social problems in the&nbsp; society. Appeal to the people to marry orphans, widows and captives of war was necessitated on account of social inequality, economic distress and like conditions to which women were put to suffer. The mandate issued by Prophet Mohammed was intended to save the destitute and to protect their belongings . Even after fifteen centuries, some people of our country seem to be very particular in following the aforesaid tenets of Islam unmindful as to whether such circumstances exist or not. People of the community contract more than one marriage mostly for their personal pleasure. There is no system in our country to ascertain and decide whether such persons are eligible to contract more than one marriage during the subsistence of the first marriage. We have seen women and children standing in the verandah of courts who are either divorced women or second, or third or fourth wife of such persons seeking maintenance from their husbands. Unrestricted freedom to marry women of their choice was enjoyed by men and subsequently to casually pronounce talaq according to their whims and fancies. The indiscreet conduct of such persons in marrying and keeping more than one wife is continuing without any restriction. Most of such marriages are illegal since they are against Quranic injunctions.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The judgment of the Allahabad High Court in Itwari vs Smt. Asghari, AIR 1960 Allahabad 684 is referred and the relevant portion reproduced: \"Muslim Law as enforced in India has considered polygamy as an institution to be tolerated but not encouraged, and has not conferred upon the husband any fundamental right to compel the first wife to share his consortium with another woman in all circumstances. A Muslim husband has the legal right to take a second wife even while the first marriage subsists, but if he does so, and then seeks the assistance of the Civil Court to compel the first wife to live with him against her wishes on pain of severe penalties including attachment of property, she is entitled to raise the question whether the court, as a court of equity, ought to compel her to submit to co-habitation with such a husband. In that case the circumstances in which his second, marriage took place are relevant and material in deciding whether his conduct in taking a second wife was in itself an act of cruelty to the first.\"</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The High Court also refers to 150 year old Privy Council judgement in Moonshee Bazloor Ruheem vs Shamsunnisa Begum (11 MIA 551) that “Indian law does not recognise various types of such as \'Muslim\'cruelty, \'Christian\'cruelty \'Jewish\' cruelty, and so on, and the test of cruelty is based on the universal and humanitarian standards, that is to say, conduct of the husband which would cause such bodily or mental pain as to endanger the wife\'s safety or health. The onus is on the husband who takes a second wife to explain his action and prove that his taking a second wife involved no insult or cruelty to the first, and in the absence of cogent explanation the Court will presume under modern conditions that the action of the husband in taking a second wife involved cruelty to the first, and it would be inequitable for the Court to compel her against her wishes to live with such a husband.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The High Court upheld the Judgment of the family court Vijayapura which decreed the first wife\'s suit for dissolution marriage.&nbsp;</span></div><i><div style=\"text-align: justify;\"><i style=\"font-size: 0.875rem;\"><b><br>S.Basavaraj, Advocate, Daksha Legal. raj@dakshalegal.com</b></i></div></i></p><p><br></p>', '823d2109b0b154710bb7f983ccb57581.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-08-17', 1, '', '', '2020-12-11 18:45:10', '2020-12-31 01:40:01'),
(225, 'oAFBRx7QzmW18opOYqKjJCU3J', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Temporary Injunction. Latest and important judgment. Principles reiterated and laid down. Karnataka High Court.', '<p style=\"text-align: center; \"></p><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Temporary Injunction. Latest and important judgment. Principles reiterated and laid down. Karnataka High Court.</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Shree Samsthana Mahabaleshwara Deva Gokarna and others vs U.F.M. Ananthraj and others. MFA 100918/2020. Decided on 24 August 2020. Justice E.S. Indiresh.</span></div><p></p><p><b>Judgment link:&nbsp;<br></b><span style=\"font-size: 0.875rem;\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/338546/1/MFA101088-20-</span><span style=\"font-size: 0.875rem;\">24-08-2020.pdf</span></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Held: 43 The jurisdiction conferred under Article 227 of the Constitution of India, upon this Court is not an appellate one but it is a combination to supervisory and equitable jurisdiction and to do justice and to prevent miscarriage of justice. So also, the power of this Court, while exercising power under XLI Rule 1 CPC, interfere with the discretionary order passed by the trial Court under Order XXXIX Rule 1 &amp; 2 CPC. … the Appellate Court can interfere with an order of the trial Court, only when it finds that the order passed is opposed to the well- settled principles in exercise of judicial discretion.</span><br></div><div style=\"text-align: justify;\"><br></div><p style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Held: 45. It is pertinent to mention here that, the Court should abstain from making an interlocutory order, which has the effect or tends to be susceptible of an inference of prejudicing some of the important and delicate issues that require to be decided in the main matter.&nbsp;&nbsp;<br></span><span style=\"font-size: 0.875rem;\">|<br>45. The existence of prima facie case alone is not the sole criteria for issuance of temporary injunction. The trial Court must examine the facts of each case to decide whether an injunction would be granted or not. The object of interim injunction is to keep things in status- quo. Existence of right is condition precedent to grant or refuse temporary injunction.</span></p><p></p><p style=\"text-align: justify; \"><span style=\"font-size: 0.875rem;\">48. It is settled principle of law that discretion of the Court, while granting order of temporary injunction in favour of the plaintiffs, must meet following requirements:</span><br></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Existence of prima facie as pleaded necessitating protection of rights of issue of temporary injunction.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">When the need for protection of plaintiffs rights is compared with or weighed against the need for protection of defendants rights or material infringement of defendants rights, the balance of convenience in favour of the plaintiffs or defendants.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Clear possibility of irreparable injury being caused to the plaintiffs if the temporary injunction is not granted. In addition the temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiffs conduct is free from blame and he approaches the Court with clean hands.</span></div><p></p><p></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">58.....The granting or refusing of injunction is a matter resting in the sound discretion within the trial Court and consequently, no injunction will be granted whenever it would operate oppressively, or inequitably or contrary to the real justice of the case.</span></div><br><b>Compiled by: S.Basavaraj, Daksha Legal.</b><p></p><p><br></p>', 'ef4941ea11c2ec6f7f4367e9c7590884.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-08-24', 1, '', '', '2020-12-11 18:50:01', '2020-12-31 01:37:47');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(226, '0zWLK2AdTARI5qH6VRKrWs6uy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Defamation.  Statements made in pleadings before Court amount to defamation unless they fall under the exceptions. ', '<h4></h4><p style=\"text-align: center; \"></p><div style=\"text-align: justify;\"><div><span style=\"font-size: 21px;\">Sushma Rani vs H.N. Nagaraja Rao.</span></div><div><span style=\"font-size: 21px;\">Criminal Revision Petition 152/2014 decided on 1 October 2020.</span></div><div><span style=\"font-size: 21px;\">Dr. Justice Prabhakar Shastry.&nbsp;</span></div><div><span style=\"font-size: 21px;\">11. Section 499 of the Indian Penal Code, 1860, defines as to what is ‘defamation’. A reading of the said Section goes to show that, in order that, an act to become a ‘defamation’, there must be (i) an imputation concerning any person; (ii) such an imputation may be by words, either spoken or written or even by signs or by visible representations; (iii) such an imputation must be intending to harm the other person or knowing or having reason to believe that it would harm the reputation of other person. Thus, such an imputation must be made or published and its effect. must harm the reputation of the other person against whom such imputations are made. In order to be defamatory, a publication must tend to lower the complainant in the opinion of men whose standard of opinion, the Court can properly recognise or tend to induce them to entertain an ill-opinion of him. However, the complainant need not show a tendency of imputation to prejudice him in the eye of every one in the community or all of his associates, but it is sufficient to establish that the publication tends to lower him in the estimation of a substantial, respectable group, even though they are of a totally different community or of the complainant’s associates.&nbsp;</span></div><div><span style=\"font-size: 21px;\"><br></span></div><div><span style=\"font-size: 21px;\"><br></span></div><div><span style=\"font-size: 21px;\">15. Learned Amicus Curiae for the respondent/complainant in Criminal Revision Petition relied on few judgments. In the case of Smt. Madhuri Mukund Chitnis Vs. Mukund Martand Chitnis and another reported in 1990 CRL.L.J. 2084, the Bombay High Court was pleased to observe that, the imputations made in a proceeding which is filed in a Court is clearly a publication.&nbsp; It further observed that even a publication to an authority over the person against whom the imputations are made must be held to be sufficient publication which falls within the purview of the said Section 499 of IPC.&nbsp;</span></div><div><span style=\"font-size: 21px;\">In the case of Thangavelu Chettiar Vs. Ponnammal reported in AIR 1966 Mad 363, the Madras High Court was pleased to observe that, there can be no doubt that the defamation contained in the plaint was published by the plaint being filed in the Court.&nbsp;</span></div><div><span style=\"font-size: 21px;\">It is clear that apart&nbsp; &nbsp;from&nbsp; &nbsp;filing&nbsp; &nbsp;the&nbsp; &nbsp;statements, in the form of statement of objections, in the matrimonial case, she has also revealed the contents of the same to the relatives and a friend of the complainant, which clearly establishes that there was publication as required under Section 499 of IPC of the alleged defamatory statement by the accused.&nbsp;</span></div><div><span style=\"font-size: 21px;\">The contents of the statements of the accused, suffice it to say, would per&nbsp; se reveal that the said statements are defamatory in nature unless they are shown to be falling within any one of the Exceptions to Section 499 of IPC.&nbsp;</span></div><div><span style=\"font-size: 21px;\">The accused has not even attempted to show that they were the imputation of truth or that they were made in good faith. Therefore it can be safely held that the complainant has proved beyond reasonable doubt that the accused has committed an offence of defamation punishable under Section 499 of IPC, which is punishable under Section 500 of IPC.</span></div><div><span style=\"font-size: 21px;\"><br></span></div><div><span style=\"font-size: 21px;\">Section 499. Defamation – Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.</span></div><div><span style=\"font-size: 21px;\">Explanation 1.- It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.</span></div><div><span style=\"font-size: 21px;\">Explanation 2.- It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.</span></div><div><span style=\"font-size: 21px;\">Explanation 3.- An imputation in the form of an alternative or expressed ironically, may amount to defamation.</span></div><div><span style=\"font-size: 21px;\">Explanation 4.- No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.</span></div><div><span style=\"font-size: 21px;\"><br></span></div><div><span style=\"font-size: 21px;\">First Exception.- Imputation of truth which public good requires to be made or published.- It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.</span></div><div><span style=\"font-size: 21px;\">Second Exception.- Public conduct of public servants.- It is not defamation to express in a good faith any opinion whatever respecting the conduct of a&nbsp;</span></div><div><span style=\"font-size: 21px;\">public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.</span></div><div><span style=\"font-size: 21px;\">Third Exception.- Conduct of any person touching any public question.- It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.</span></div><div><span style=\"font-size: 21px;\">Fourth Exception.- Publication of reports of proceedings of Courts.- It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.</span></div><div><span style=\"font-size: 21px;\">Explanation.- A justice of the Peace or other officer holding an inquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.</span></div><div><span style=\"font-size: 21px;\">Fifth Exception.- Merits of case decided in Court or conduct of witnesses and others concerned.- It is not defamation to express in good faith any opinion whatsoever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.</span></div><div><span style=\"font-size: 21px;\">Sixth Exception.- Merits of public performance.- It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.</span></div><div><span style=\"font-size: 21px;\">Explanation.- A performance may be substituted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.</span></div><div><span style=\"font-size: 21px;\">Seventh Exception.- Censure passed in good faith by person having lawful authority over another.- It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.</span></div><div><span style=\"font-size: 21px;\">Eighth Exception.- Accusation preferred in good faith to authorised person.- It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.</span></div><div><span style=\"font-size: 21px;\">Ninth Exception.- Imputation made in good faith by person for protection of his or other’s interests.- It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.</span></div><div><span style=\"font-size: 21px;\">Tenth Exception.- Caution intended for good of person to whom conveyed or for public good.- It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.”</span></div><div><span style=\"font-size: 21px;\"><br></span></div><div><br></div><div><br></div></div>', 'e321d01d68945b9e75780185250290ef.jpg', '3bb7558eb174ee52afe20023d1e51338.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-01', 1, '', '', '2020-12-11 19:02:34', '2022-06-11 02:51:47'),
(227, 'Lc6NoCe6GJgcW4xQpseSPcCyG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Custody of minor child. Shared Parenting', '<p style=\"text-align: center; \"><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Custody of minor child. \"Shared Parenting\" discussed.</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Savitha Seetharam vs Rajiv Vijayasarathy Rathnam.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">M.FA. 1536/2017 decided on 11 September 2020.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Justice B.V. Nagarathna and Justice N.S. Sanjay Gowda.</span></div></p><p style=\"text-align: left;\"><b>Judgment link:</b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/340069/1/MFA1536-15-11-09-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/340069/1/MFA1536-15-11-09-2020.pdf<br></a><br><b>HELD: </b><br><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">8. Whenever, the husband and wife seek to dissolve their marriage, the conflict over the custody of the child, particularly a minor child, assumes significance. Whenever there is opposition by a party for giving custody of the child to another party and vice versa, the conflict can become extreme and aggravated sometimes resulting in dilution of any settlement that could be arrived at between the parties to seek dissolution of their marriage. One cannot underestimate the fact that in the case of separation of parents on account of dissolution of marriage by a decree of divorce, the children of the marriage are most affected physically, emotionally and their upbringing would take a beating.&nbsp;</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">9. One of the ways to resolve the conundrum is, by the emerging concept of shared parenting. In some overseas jurisdictions, the concept of shared parenting has been in vogue and prevalent but not so well entrenched in India and has been ordered only in a handful of cases. It&nbsp; is necessary to remind ourselves that a child requires both parents, the mother and the father in jointly bringing up the child which would have a holistic impact on the overall growth of the child. This is because both parents have a joint responsibility in bringing up their children as each parent would contribute in a unique way to the mental, physical and emotional/psychological development of the child. Hence, whenever there is a separation between the parents, shared parenting would mean that the joint responsibility would continue subject to certain arrangements being put in place.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">10. In this context, it is necessary to understand two terminologies, namely, joint physical custody and joint legal custody. Joint legal custody means that both parents have equal rights and responsibilities towards the child including the child’s education and upbringing, whereas the joint physical custody would mean, both parents would share the physical custody of the child by spending equal time and having equal contact with the child.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The International Council on Shared Parenting (ICSP) at its conference held at Bonn, Germany, in July 2014 has arrived at certain areas of consensus as under:&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(i) That “shared parenting” is defined to include both the shared parental authority (decision making) and shared parental responsibility for the day-to-day upbringing and welfare of the children, between both the parents keeping in mind children’s age and stage of development. Thus, “shared parenting” is defined as the presumption of shared rights in regard to the parenting of children by fathers and mothers who are living together or apart.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(ii)Shared parenting is a post-divorce parenting arrangement for the optimal development of the child including children of high conflict parents. That if there is a 50-50 parent&nbsp; time, it would be an optimal time that each parent could expect during week days or week-ends, as the case may be.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(iii) There is also a consensus that shared parenting orders could be passed even if one parent opposes it. As shared parenting is in consensus with International Human Rights and Constitutional Rights of the children to be raised by both their parents.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(iv)Any judicial discretion to be exercised by the Court must be in the best interest of the children.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(v) Though the shared parenting would not apply to situations where there is violence and child abuse or maltreatment of the child in any form including parental alienation.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(vi) Accessible network of family relationship centers that would render relevant support services and family mediation are necessary and vital for the success of shared parenting.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">12. At the outset, it would be useful to refer to a decision of the Hon’ble Supreme Court in the case  of Thrity Hoshie Dolikuka  vs.  Hoshiam  Shavaksha  Dolikuka, [(1982) 2 SCC 544], wherein it has been observed as under:\r\n“17. The principles of law in relation to the custody of a minor appear to be well established. It is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the court has a special responsibility and it is the duty of the court to consider the welfare of the minor and to protect the minor’s interest. In considering the question of custody of a minor, the court has to be guided by the only consideration of the welfare of the minor.”&nbsp;</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">14. The United Nations Convention of Rights of the Child, 1989 is an International Treaty which encompasses civil, political, economic, social, health and cultural rights of children, to which India is a signatory. The&nbsp; quintessence of the right of the child in the context of separated parents is that a child should not be separated from his or her parents against his will except when the court determines so in accordance with the applicable law, to the effect that such separation is necessary and in the best interest of the child.&nbsp;</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">15. Thus, the concept of shared parenting would assume greater importance after the divorce of parents by a dissolution of their marriage. Questions such as custody and visitation rights would then assume significance in the context of the responsibilities of the parents towards their children. Thus, the concepts such as “joint legal custody” or “joint physical custody” have emerged over a period of time in several legal regimes.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">23 ....the principle of shared parenting which is defined to include shared parenting authority as well as shared parenting responsibility in the day-to-day upbringing and welfare of the children, as it has evolved over the decades, in the context of custody of minor children. The Hon’ble Supreme Court in a catena of decisions has held that in dealing with the matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor’s interest. Over a period of time, the concepts of custody and visitation rights have transformed themselves into the responsibility of parents towards children. A central theme of this transformation is the emphasis on parental responsibility which requires that the child should be treated as an individual having his or her own capabilities and limitations as well as independent opinions.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">A child is not an appendage&nbsp; of his parents.&nbsp; &nbsp;The focus of attention must actually be on the child.</span></div><i><b><br>Compiled by S.Basavaraj, Daksha Legal.&nbsp;</b></i></p><p><br></p>', 'b73b57aa8d7fa10e407deb09c786f740.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-09-11', 1, '', '', '2020-12-11 19:32:55', '2020-12-31 01:20:50'),
(236, 'GvCIYEdK9JzKFfTQlHYKrHlaa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu woman marrying Muslim man.  Irregular and not void', '<p style=\"text-align: center;\"></p><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Hindu woman marrying Muslim man. Such marriage is only irregular (fasid) and not void (bati). Children from such marriage are entitled to share in father’s property. Supreme Court.</b></div><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Mohd. Salim v. Shamsudeen,</span></div> </span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(2019) 4 SCC 130. Civil Appeal No. 5158 of 2013, decided on January 22, 2019.</span></div></span><p></p><h4><p style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\"><br></span><p><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">&nbsp;</b><span style=\"font-size: 1.3125rem;\">“invalid”, and not “irregular”, and that therefore a fasid marriage was a void marriage, considered the changes over time in the interpretation of “fasid”. It would be worthwhile for us to refer to these changes as well. In the 6th Edn. of Mulla, at Sections 197, 199 and 200, fasid marriage is interpreted as “invalid”. So also in Sections 197, 199 and 204-A of the 8th Edn. of Mulla, fasid is stated to mean “invalid”. For instance, in the 6th Edn. of Mulla, Section 200 at p. 162, dealing with the difference of religion, reads: “(1) A Mahomedan male may contract a valid marriage not only with a Mahomedan woman but with a Kitabia, that is, a Jewess or a Christian, but not with an idolatress or a fire-worshipper. If he does marry an idolatress or a fire-worshipper the marriage is not void (batil), but merely invalid (fasid).”.&nbsp;</span></div><p><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">17. Section 204-A at p. 164 of the same edition deals with the distinction between void (batil) and invalid (fasid) marriage. It provides that a marriage which is not valid may either be void (batil) or invalid (fasid). A void marriage is one which is unlawful in itself, the prohibition against such a marriage being perpetual and absolute. An invalid marriage (fasid marriage) is described as one which is not unlawful in itself, but unlawful “for something else”, as here the prohibition is temporary or relative, or when the invalidity arises from an accidental circumstance such as the absence of a witness. Section 204-A(3) at p. 165 of the 6th Edn. of Mulla reads: “…Thus, the following marriages are invalid, namely—(a) a marriage contracted without witnesses (Sections 196-197);(b) a marriage by a person having four wives with a fifth wife (Section 198);(c) a marriage with a woman who is the wife of another (Section 198-A);(d) a marriage with a woman undergoing iddat (Section 199);(e) a marriage prohibited by reason of difference of religion (Section 200);(f) a marriage with a woman so related to the wife that if one of them had been a male, they could not have lawfully intermarried (Section 204).…”.&nbsp;</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">18. The reason why the aforesaid marriages are invalid and not void has also been provided later in the same paragraph. With respect to marriages prohibited by reason of difference of religion, it is stated thus: “… in clause (e), the objection may be removed by the wife becoming a convert to the Mussulman, Christian or Jewish religion, or the husband adopting the Moslem faith….”.&nbsp;</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">19. In the 10th Edn., a change has been made to the meaning of fasid marriage. In Section 196-A, valid, irregular and void marriages are dealt with. It reads: “A marriage may be valid (sahih) or irregular (fasid), or void from the beginning (batil).”&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">20. From the 10th Edn. onwards, fasid marriage has been described as an irregular marriage, instead of invalid, but there has been no change with regard to the effect of a fasid marriage from the 6th Edn. onwards. The effects of an invalid (fasid) marriage have been dealt with in the 6th Edn. of Mulla at Section 206 at p. 166, clauses (1) and (2) of which read: (1) An invalid marriage has no legal effect before consummation.(2) If consummation has taken place, the wife is entitled to dower [“proper” (Section 220) or specified (Section 218), whichever is less], and children conceived and born during the subsistence of the marriage are legitimate as in the case of a valid marriage. But an invalid marriage does not, even after consummation, create mutual rights of inheritance between the parties.”&nbsp;</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">21. In the 8th Edn. of Mulla, the effects of a fasid marriage have been dealt with in Section 206 at p. 173. As in the 6th Edn., it is stated that children conceived and born during the subsistence of a fasid marriage are legitimate, as in the case of a valid marriage. As noted supra, the same position has been followed in the subsequent editions also, except that fasid has been described as “irregular” from the 10th Edn. onwards rather than as “invalid”.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">22. Irrespective of the word used, the legal effect of a fasid marriage is that in case of consummation, though the wife is entitled to get dower, she is not entitled to inherit the properties of the husband. But the child born in that marriage is legitimate just like in the case of a valid marriage, and is entitled to inherit the property of the father.&nbsp;</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">23. Evidently, Muslim law clearly distinguishes between a valid marriage (sahih), void marriage (batil), and invalid/irregular marriage (fasid). Thus, it cannot be stated that a batil (void) marriage and a fasid (invalid/irregular) marriage are one and the same. The effect of a batil (void) marriage is that it is void ab initio and does not create any civil right or obligations between the parties. So also, the offspring of a void marriage are illegitimate (Section 205-A of the 6th and 8th Edns. and Sections 205-A of the 10th Edn., and 266 of the 18th Edn. of Mulla). Therefore, the High Court correctly concluded that the marriage of Defendant 9 with Mohammed Ilias cannot be held to be a batil marriage but only a fasid marriage.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">24. We find that the same position has been reiterated in the 21st Edn. of Mulla as follows. The distinction between void and irregular marriages has been dealt with in Section 264 at p. 349:“(1) A marriage which is not valid may be either void or irregular. (2) A void marriage is one which is unlawful in itself, the prohibition against the marriage being perpetual and absolute. Thus, a marriage with a woman prohibited by reason of consanguinity (Section 260), affinity (Section 261), or fosterage (Section 262), is void, the prohibition against marriage with such a woman being perpetual and absolute.(3) An irregular marriage is one which is not unlawful in itself, but unlawful ‘for something else’, as where the prohibition is temporary or relative, or when the irregularity arises from an accidental circumstance, such as the absence of witnesses. Thus, the following marriages are irregular, namely:(a) a marriage contracted without witnesses (Section 254);(b) a marriage with a fifth wife by a person having four wives (Section 255);(c) a marriage with a woman undergoing iddat (Section 257);(d) a marriage prohibited by reason of difference of religion (Section 259);(e) a marriage with a woman so related to the wife that if one of them had been a male, they could not have lawfully intermarried (Section 263).The reason why the aforesaid marriages are irregular, and not void, is that in clause (a) the irregularity arises from an accidental circumstance; in clause (b) the objection may be removed by the man divorcing one of his four wives; in clause (c) the impediment ceases on the expiration of the period of iddat; in clause (d) the objection may be removed by the wife becoming a convert to the Mussalman, Christian or Jewish religion, or the husband adopting the Moslem faith; and in clause (e) the objection may be removed by the man divorcing the wife who constitutes the obstacle; thus, if a man who has already married one sister marries another, he may divorce the first, and make the second lawful to himself.”&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">25. The effect of an irregular (fasid) marriage has been dealt with in Section 267 at pp. 350-51 of the 21st Edn. of Mulla as follows: “267. Effect of an irregular (fasid) marriage.—(1) An irregular marriage may be terminated by either party, either before or after consummation, by words showing an intention to separate, as where either party says to the other “I have relinquished you”. An irregular marriage has no legal effect before consummation.(2) If consummation has taken place—(i) the wife is entitled to dower, proper or specified, whichever is less (Sections 286, 289);(ii) she is bound to observe the iddat, but the duration of the iddat both on divorce and death is three course [see Section 257(2)];(iii) the issue of the marriage is legitimate. But an irregular marriage, though consummated, does not create mutual rights of inheritance between husband and wife….”.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br>27. In Syed Ameer Ali’s Mohamedan Law also, the same principle has been enunciated. The learned author, while dealing with the issue of the legitimacy of the children, observed at p. 203 of Vol. II, 5th Edn.: “The subject of invalid marriages, unions that are merely invalid (fasid) but not void (batil) ab initio under the Sunni law, will be dealt with later in detail, but it may be stated here that the issue of invalid marriage is without question legitimate according to all the sects.For example, if a man were to marry a non scriptural woman, the marriage would be only invalid, for she might at any time adopt Islam or any other revealed faith, and thus remove the cause of invalidity. The children of such marriage, therefore, would be legitimate.”&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br>28. Tahrir Mahmood in his book Muslim Law in India and Abroad, (2nd Edn.) at p. 151 also affirms that the child of a couple whose marriage is fasid i.e. unlawful but not void, under Muslim law will be legitimate. Only a child born outside of wedlock or born of a batil marriage is not legitimate.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">29. A.A.A. Fyzee, at p. 76 of his book Outlines of Muhammadan Law (5th Edn.) reiterates by citing Mulla that the nikah of a Muslim man with an idolater or fire-worshipper is only irregular and not void. He also refers to Ameer Ali’s proposition that such a marriage would not affect the legitimacy of the offspring, as the polytheistic woman may at any time adopt Islam, which would at once remove the bar and validate the marriage.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">31. Thus, based on the above consistent view, we conclude that the marriage of a Muslim man with an idolater or fire-worshipper is neither a valid (sahih) nor a void (batil) marriage, but is merely an irregular (fasid) marriage. Any child born from such wedlock (fasid marriage) is entitled to claim a share in his father’s property. It would not be out of place to emphasise at this juncture that since Hindus are idol worshippers, which includes worship of physical images/statues through offering of flowers, adornment, etc., it is clear that the marriage of a Hindu female with a Muslim male is not a regular or valid (sahih) marriage, but merely an irregular (fasid) marriage.</span></div><div style=\"text-align: justify;\"><b><i><br></i></b></div><i><div style=\"text-align: justify;\"><i style=\"font-size: 1.3125rem;\"><b>Compiled by S.Basavaraj, Advocate, Daksha Legal&nbsp;</b></i></div></i></p></p></p></h4><p><br></p>', '6c8e5ee1dc99c6f8e8251e3037a9b81e.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2019-01-22', 1, '', '', '2020-12-12 16:19:43', '2020-12-30 19:22:15'),
(228, '8td2qSoiYGsoGAHg4LIHlugcd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Acquisition under BDA Act will not lapse when acquisition is complete though Scheme has lapsed. Incomplete acquisition quashed. Karnataka High Court. ', '<p style=\"text-align: center; \"></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem; font-family: var(--bs-font-sans-serif);\">Savitramma and others vs The State of Karnataka and others.</span><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Writ Petition 10824/2009 decided on 5 October 2020.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Justice M.I. Arun.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">12. The question that arises for consideration in the present writ petition is whether the scheme  in respect of  the petitioners’ property has lapsed and if yes, what is the effect of it.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Section 27 of the Bangalore Development Authority Act, 1976 reads as follows:-“27. Authority to execute the scheme within five years.- Where within a period of five years from the date of the publication in the Official Gazette of the declaration under sub-section (1)  of section 19, the authority fails to execute the scheme substantially, the scheme shall lapse and the provisions of section 36 shall become inoperative.”</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">17. Section 16 of the Land Acquisition Act, 1894 as applicable in the State of Karnataka reads as under:-</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">“16. Power to take possession. – </span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(1) When the Deputy Commissioner has made an award under Section 11, he may take  possession  of the land, which shall thereupon [vest absolutely in the [Government]], free from all encumbrances.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(2) The fact of such taking possession may be notified by the Deputy Commissioner in the Official Gazette, and such notification shall be evidence of such fact.”</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">18. ..the land shall vest absolutely in the Government free from all encumbrances only upon the Deputy Commissioner making an award and after taking possession of the land. </span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">20(a) Decision of Hon’ble Supreme Court of India reported in (2011) 3 SCC 139 (Offshore Holdings vs. BDA and others), paragraphs 38, 39 and 93 reads as under: On a conjunctive reading of the provisions of Sections 27 and 36 of the State Act, it is clear that where a scheme lapses, the acquisition may not. This, of course, will depend upon the facts and circumstances of a given case. Where, upon completion of the acquisition proceedings, the land has vested in the State Government in terms of Section 16 of the Land Acquisition Act, the acquisition would not lapse or terminate as a result of lapsing of the scheme under Section 27 of the BDA Act.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Reference made to decisions in ILR 2005 KAR 295 D.Narayanappa vs. State of Karnataka and others, ILR 2012 KAR 5634 Gautam Kamat Hotels Pvt. Ltd., and others vs. Bangalore Development Authority, (1994) 1 SCC 44 Ram Chand and others vs. Union of India and others, ILR 2018 KAR 2144 BDA  vs.  State  of Karnataka and others, 2020 SCC Online SC 316 Indore Development Authority vs. Manoharlal, ILR 2003 KAR 3206 Narayana Setty and others vs. State of Karnataka and others, 2018 (3) SCC 412 Indore Development Authority vs. Shailendra (dead) through legal representatives and  others, . </span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">23.To sum up the ratio laid down in the aforementioned decisions states that the purpose of BDA is to ensure organized development of the city of Bengaluru.  In order to achieve it, it can acquire lands but land acquisition is not the main purpose of BDA. When  it  acquires land pursuant to a particular scheme and that scheme is not implemented within a time frame as prescribed in Section 27 of the Bangalore Development Authority Act, the scheme lapses. If a scheme has lapsed and the lands sought to be acquired has not already vested with the BDA, acquisition proceedings in respect of those lands cannot proceed and the right of the land owners in respect of those lands revives. </span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">25...vesting does not depend upon payment   of compensation, vesting of land happens upon passing of award and taking possession of the same. Lapsing of  scheme is different from lapsing of acquisition. A scheme may lapse, however, if acquisition is complete, the acquisition does not lapse. The acquiring authority can use the land for any other public purpose. </span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">On Facts: 26. ...if the land has not vested with the BDA before the lapse of the scheme, the rights of the owners revive. The main objective of BDA is  development  of city of Bengaluru and it can acquire lands for the said purposes.  It has to acquire land only  when it is required.   In the instant case, though the final notification was issued in the year 1985  and possession taken in the year 2008,  the land remained unutilized and has been transferred to respondent No.4 in the year  2019.  Before  taking possession in the year 2008, BDA contemplated to denotify the land. It goes to show that the respondent no.2 never required the land in question. Further the award was passed in the year 1988 and the amount was deposited in the Civil Court in the year 2009.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(Since there was no challenge to acquisition for Metro, the proceedings only in respect of BDA acquisition are quashed.) </span></div>', '664b2ee153d82f18fb559572794f9ed5.JPG', '9905f850d2abb5cd49eeb7c75aa9719e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-27', 1, '', '', '2020-12-11 19:37:32', '2023-01-27 12:26:47'),
(2604, 'j1ztmZf81oJ3xCdJE7mDIyY17', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Societies Registration Act. Prosecution for not conducting annual general body meeting cannot launched after six months from the date of the alleged offence. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ashok Ariga Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 35914 of 2016 decided on 12 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">The 2nd respondent had filed a private complaint under\r\nSection 200 of Cr.PC for the offence punishable under Section 28\r\nof the Karnataka Societies Registration Act, 1960 for\r\ncontravening Section 11(2) of the said Act alleging that the\r\npetitioner - accused has not convened the annual general body\r\nmeeting within nine months from the date of election to the\r\ncommittee of the Mangaluru Bar Association. The learned\r\nMagistrate referred the complaint to the police for investigation\r\nunder Section 156(3) of Cr.PC. The police after the investigation\r\nsubmitted a charge sheet. The learned Magistrate has taken the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cognizance of the aforesaid offence on the basis of the report,\r\nagainst which, the present petition is filed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. Sub-section 2 of Section 11 of the Karnataka\r\nSocieties Registration Act, 1960 specifies that the first annual <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">general meeting shall be convened within nine months after the\r\nexpiry of each year. Admittedly, the new Managing Committee of\r\nthe Bar Association was constituted on 16.11.2012. The Bar\r\nAssociation allegedly having not convened the annual general\r\nbody meeting within the time specified, the complaint ought to\r\nhave been filed within six months from the date of each expiry of\r\ntime prescribed for convening annual general meeting. In the\r\ninstant case, the complaint was lodged on 10.7.2014 i.e. after\r\nexpiry of six months and the offence punishable under Section\r\n11(2) of the Karnataka Societies Registration Act, 1960 is\r\npunishable with fine of Rs.1,000/-. Section 468(2)(a) of Cr.PC\r\nspecifies that the cognizance for an offence punishable with fine\r\ncan be taken only within six months from the date of commission\r\nof offence. Hence, the complaint lodged by the 2nd respondent\r\nafter expiry of time specified was not maintainable and\r\nconsequently, the cognizance taken stands vitiated.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n i) Writ petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '79ab03252e27efb7a0ebc10e2fb88c30.jpeg', 'ae3f14d97f599ae8dc915549f820fcde.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-30', 1, '', '', '2023-01-27 13:40:01', '2023-01-30 07:13:38'),
(229, 'BzTtogM0m4DY0cgucQxwdKsgM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Defamation. Freedom of speech and expression cannot invade right to life.', '<p style=\"text-align: center; \"></p><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Defamation. Truth of imputation and publication for the public good both must be proved by accused to attract exception. Other exceptions discussed. Freedom of speech and expression cannot invade right to life.</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Selvina Kom Peter Byarko vs Ganesh P and another.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Criminal Appeal 2593/2020 decided on 18:8:2020.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Justice M.G. Uma.</span></div><p></p><p><b>Judgment link:</b><br> <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/340573/1/CRLA2593-11-18-08-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/340573/1/CRLA2593-11-18-08-2020.pdf<br></a><br><b>Relevant Paragraphs:&nbsp;<br></b><span style=\"font-size: 0.875rem; text-align: justify;\"><br>19. Under Section 499 of IPC, if any imputation concerning a person is published with an intention or knowledge or having reason to believe that such imputation will harm the reputation of such person, it amounts to defamation of that person, except under Ten Exceptions contained therein.&nbsp;<br></span><span style=\"font-size: 0.875rem; text-align: justify;\"><br>20. Section 105 of the Indian Evidence Act deals with the burden of proving existence of circumstances bringing the case within any of the general exceptions in the IPC or within special exception or proviso containing in other parts of the same Code or in any law defining the offence, on the accused and mandates the Court to presume the absence of such circumstances.&nbsp;</span></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">25. ...Eighth Exception refers to such accusation made to the authorized person. But in the present case, since the article was published in&nbsp; the magazine, the said exception cannot be made applicable.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">26....accused does not fall under eighth exception, since the article in question was published in a magazine but not a representation submitted to an authorized person.&nbsp;</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">27.To attract the Ninth Exception to Sec. 499 IPC, the imputation must be made in good faith for protection of his or other’s interest. It is not explained by the accused as to how their interest or interest of others was involved in the case and how they have protected it by publishing the news item.&nbsp;</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">28.The position of law with regard to defamation is very well settled. If once publication is proved to be defamatory in nature, harming the reputation of the complainant, the burden shifts on the accused to claim exemption under any of the exceptions under Section 499 of IPC. Even when the accused takes a defence that publication containing the imputation was a true fact, he is required to prove that the said publication was for the public good, in order to attract the first exception. If on the other hand accused seeks exemption under the ninth exception, he has to prove that the imputation was made in good faith for his protection or of any other person. Moreover the person who makes such imputation and his position will determine the standard of care and caution he has to take, while making such publication.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">29.When we speak of right to life, it definitely includes the life with human dignity and reputation. This right of a citizen is very precious and recognized as fundamental under Article 21 of the Constitution of India. It cannot be invaded under the garb of freedom of speech and expression. Even though the freedom&nbsp; of speech and expression is recognized as a right under Article 19 of the Constitution of India, it is not an absolute right but is subject to reasonable restrictions.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">30.If the accused prefers to seek shelter under the first exception to Section 499 of IPC, he has to prove that it was imputation of truth, which was published for public good. Imputation of truth by it self is not a defence available to the accused, when publication of imputation was not for public good. On the other hand if he invokes ninth exception, it is for him to prove that the imputation was made in good faith for protection of his own or other’s interests. Public good referred to in the first exception or good faith referred to in the ninth exception to Section 499 IPC, are definitely the questions of fact, which have to be gathered from the facts and circumstances of each case and to be established by the accused.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">34.When the publication is not covered under any of the Exceptions, after the same is held as an imputation that has harmed the reputation of the complainant, commission of the offence punishable under Section 500 of IPC is complete. The conduct of the Accused in using objectionable and defamatory words only to have rhyming caption and the article is not at all acceptable and therefore both the accused are liable to be convicted.</span></div><i><div style=\"text-align: justify;\"><br></div><b>Compiled by S.Basavaraj, Daksha Legal&nbsp;</b></i><p></p><h4><br></h4>', 'f7e46fff2f17937707bf2676e0ff0207.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-08-18', 1, '', '', '2020-12-11 19:46:22', '2020-12-31 01:03:29');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(230, '2S4NzKzKhWZNFjtcwhWh3uMZV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Complaint backed by affidavit. Does not apply where it is by public authority or under a statute.', '<h4></h4><p style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Criminal Procedure Code. Complaint to Magistrate backed by affidavit. Does NOT apply where complaint can be filed only under Section 200 like complaint under NI Act or by public authority under a statute.</b></span></p><p style=\"text-align: center;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Prakash Raj @ Praksah Rai vs State of Karnataka and another.</span></div><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Criminal Petition 2394/2020 decided on 28 September 2020.</span></div> </span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Justice Sreenivas Harish Kumar.&nbsp;</span></div></span></p><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><b>Judgment link:</b><br>&nbsp;https://karnatakajudiciary.kar.nic.in/noticeBoard/CRL-P-2394-2020.pdf<h4><br><p><b>Held: Paragraphs</b></p><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">8.The conspectus of the ratio is that affidavit is necessary to be filed with the complaint only in those cases where the police fail to take any action when a report of commission of an offence is made to them according to section 154(1) of the Code and the Superintendent of Police also fails to initiate action when his attention is drawn as required under section 154(3) of the Code. Affidavit is insisted upon with a view to binding the complainant to the allegations that he has made in the complaint and taking action against him in case these allegations turn out to be false. To illustrate, if a person files a private complaint alleging an offence of hurt caused to him by another, he must have exhausted the remedy under section 154(1) and section 154(3) of the Code and state about it in the affidavit besides giving a brief account of the incident in which he was hurt. But there are certain offences in respect of which the aggrieved person should make a complaint only under section 200 as prescribed in sections 195, 198 and 199 of the Code; compliance of section 154(1) and 154(3) is not contemplated, and in respect of such offences, an affidavit in support of the complaint is not required. The complaint under section 138 of the Negotiable Instruments Act also falls under this category.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">9. Occasion to take cognizance under section 190(c) of the Code arises under two circumstances, firstly when any person other than a police officer makes a complaint, and secondly when the Magistrate takes cognizance upon his own knowledge about commission of offence, i.e., a situation where offence takes place in his presence. But where any person other than a police officer makes a complaint, affidavit is not necessary for, any person here refers to a public authority who is authorized or empowered under certain statutes to make a complaint. Since the public authority makes a complaint in exercise of statutory duty, affidavit cannot be insisted upon.</span></div></h4><h4><p style=\"text-align: justify;\"><br><i><b>Compiled by S.Basavaraj, Daksha Legal.&nbsp;</b></i></p></h4><p><br></p>', 'a7e4398b3148dd3f54fb5218a818eb98.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-09-28', 1, '', '', '2020-12-11 19:51:22', '2020-12-30 23:23:33'),
(231, '79vCQbzEX3rgnVeUbrlBcRVN2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Place of inquiry and trial in case of continuing matrimonial offence. ', '<h4></h4><p style=\"text-align: center;\"></p><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Place of inquiry and trial in case of continuing matrimonial offence. High Court cancels transfer of criminal case and orders re-transmission of case to wife\'s place. Karnataka High Court.</b></div><p></p><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">K.A.Priyanka vs The Superintendent of Police, Kalburgi.</span></div><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Writ Petition 226407/2020.</span></div></span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Decided on 25 September 2020.</span></div></span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Justice Hanchate Sanjeevkumar.&nbsp;</span></div></span><p></p><p></p><p><b>Judgment link:</b><br> <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/343068/1/WP226407-20-25-09-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/343068/1/WP226407-20-25-09-2020.pdf<br></a><b><br>Relevant Paragraphs : </b><br><br></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">6. Regarding controversy involved into the case, the relevant provisions has to be considered Sections 177, 178 and 179 of Cr.PC. stipulate as follows.“177. Ordinary place of inquiry and trial– Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. 178. Place of inquiry of trial- (a) When it is uncertain in which of several local areas an offence is committed, or (b) where an offence is committed partly in one local area and partly in another, or&nbsp;</span><span style=\"font-size: 0.875rem;\">b) where an offence is a continuing one, and continues to be committed in more local areas than one, or (d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas. 179 .Offence triable where act is&nbsp; done or consequence ensues.- When an&nbsp; act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within shoes local jurisdiction such thing has been done or such consequence has ensued.”&nbsp;</span></div><span style=\"font-size: 0.875rem; text-align: justify;\"><br>7. In Priti Kumari’s case the Hon’ble Supreme Court has followed the previous judgment of the Hon’ble Supreme Court in Rupali Devi’s V/s State of Uttar Pradesh and others, (2019) 5 SCC 384. Hence formed opinion that the transfer of the complaint and FIR from jurisdiction of one police station to another jurisdiction police station is not correct, since the offences under Section 498-A is having continuously effect, even the complainant is residing / taking shelter in parents’ home or under shelter of anybody else where the complainant is residing and lodged complaint, then those concerned police have power to conduct the investigation.&nbsp;</span><p></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">8. I place reliance on the decision of Hon’ble Supreme Court in Rupali Devi’s case (supra). In the above stated case, the question for determination was observed as follows: - “Whether a woman forced to leave her matrimonial home on account of acts and conduct that constitute cruelty can initiate and access the legal process within the jurisdiction of the courts where she is forced to take shelter with the parents or other family members?” .&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">10...the Hon’ble Supreme Court in the above said judgment ultimately were pleased to lay down the law which is at para No.16. “16. We, therefore, hold that the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498-A of the Penal Code.”</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">11...the mental trauma out of the said cruelty as observed by the Hon’ble Supreme Court is having continuing effect, therefore the Ballary Women Police Station have jurisdiction to entertain the complaint and competent enough and having jurisdiction to investigate into the matter and to file final report. But without doing so the Ballary Women Police Station have transferred the complaint and FIR to the Shahapur Police Station is not correct as per the principle of law laid down by the Hon’ble Supreme Court in Rupali Devi’s case (supra). Therefore, the present petition succeeds and accordingly the respondent police are hereby directed that the complaint and FIR registered in the Ballary Women Police Station shall be revived and respondent Nos.2, 5 and 6 shall continue the investigation in Crime No.82/2020 of Ballary Women Police Station and file final report as per law. Therefore, it is directed the respondent Nos.3 and 4 to retransfer the complaint and FIR to the Ballary Women Police Station as stated above as per observations made. Accordingly, the petition is allowed.&nbsp;</span></div><i><b><br>Compiled by S.Basavaraj, Daksha Legal&nbsp;</b></i><p></p><p><br></p>', 'b4ceb03c3d33aad1cab96b90f5531d5f.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-09-25', 1, '', '', '2020-12-12 15:26:46', '2020-12-30 20:42:34'),
(232, 'vDVshzuNm3MwdcS7lgurfmSTW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Vehicle plying outside permit area. Violation does not absolve insurer of liability. Pay and recover principle applied.', '<h4></h4><p style=\"text-align: center;\"><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Vehicle (auto riksha) plying outside permit area. Such permit violation does NOT absolve insurer of it\'s liability. \'Pay and recover\' principle applied. Karnataka High Court.&nbsp;</b></div><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Dilip vs Nitin Jain.&nbsp;</span></div></span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">M.F.A. 200139/2018.&nbsp;</span></div></span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Decided on 7 October 2020.&nbsp;</span></div></span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Justice Siddappa Sunil Dutt Yadav and Justice P. Krishna Bhat.&nbsp;</span></div></span></p><p><b>Judgment link:</b><br> <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/343597/1/MFA200139-18-07-10-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/343597/1/MFA200139-18-07-10-2020.pdf<br></a><br><b>Relevant Paragraphs. </b><br><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the appellant places reliance on the observations of the Hon’ble&nbsp; &nbsp;Supreme&nbsp; Court&nbsp; in&nbsp; the&nbsp; &nbsp;case&nbsp; of&nbsp; &nbsp;Amrit&nbsp; Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited &amp; Ors. reported in (2018) 7 SCC 558.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">|5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections l22 &amp; l26 of the Motor Vehicles Act, l988.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">7. It is necessary to&nbsp; refer&nbsp; to&nbsp; the&nbsp; observations&nbsp; of&nbsp; the&nbsp; Hon’ble&nbsp; Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable ƒrom the materials brought on record that the vehicle at the time oƒ the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind oƒ permit. The exceptions that have been carved out under Section 66 oƒ the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3.</span></div><i><b><br>Compiled by S.Basavaraj, Daksha Legal&nbsp;</b></i></p><p><br></p>', 'ac1113f163f60bbf328294913d2a9bef.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-07', 1, '', '', '2020-12-12 15:32:11', '2020-12-30 20:35:54'),
(233, 'QHh28whifDMGlIs0thZTT2Stv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Equal Pay for Equal Work. Workers employed directly and through Contractor. ', '<h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"></h4><p style=\"text-align: center;\"></p><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">\'Equal Pay for Equal Work\'.\r\nWorkers employed by public undertaking directly and through Contractor. Both\r\nare entitled for the same benefits. Karnataka High Court.</b></div><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Gururaj Shenoy vs The Deputy\r\nChief Labour Commissioner. and ohers.</span></div></span><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Writ Petition 11249/2015 decided on 9\r\nOctober 2020.</span></div> <span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Justice N.S. Sanjay Gowda.</span></div></span><p></p><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\"><p style=\"text-align: left;\"></p><p style=\"text-align: justify;\"></p><p></p><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Judgment Link:</b></div><div style=\"text-align: justify; font-size: 1.3125rem; background-color: rgb(255, 255, 255);\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/343703/1/WP11249-15-09-10-2020.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\"></a><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/343703/1/WP11249-15-09-10-2020.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/343703/1/WP11249-15-09-10-2020.pdf</a><br></div><p></p><p style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\">4. In all these writ petitions, the validity of the orders passed in favour of the contract labour working at the Food Storage Depot at Udupi and Mysuru, whereby they are entitled for the same wages and the same service conditions on par with the other labour engaged under&nbsp; the No Work No Pay system in the Food Storage Depot of FCI at Udupi and Mysuru and the Direct Payment system being paid at Food Storage Depot FCI at K.R.Nagar and Nanjangud, are under challenge by the&nbsp; FCI and also by a Contractor, who had supplied labour to the FCI.&nbsp;&nbsp;<br></span><span style=\"font-size: 1.3125rem;\"><br>9.The FCI, as recorded by the Authority in its order at paragraph 2, admitted that the labour engaged through the Contractors and the labour paid through the Direct Payment system were doing the same work.</span><br></p></span><p style=\"font-size: 1.3125rem;\"></p><p style=\"font-size: 1.3125rem;\"></p><p style=\"font-size: 1.3125rem; text-align: justify;\"><span style=\"font-size: 1.3125rem;\">14. The Competent Authority, on consideration of the stand taken by the FCI, proceeded to record a finding&nbsp; that the labour working at Mysuru and Udupi were doing the same and similar nature of work as the&nbsp; labour working in the depots of FCI at K.R.Nagar&nbsp; and&nbsp; Nanjangud under the Direct Payment system and so also the labour working in the Food Storage Depot at Gadikoppa and Shivamogga under the No Work No Pay system and they were, therefore, entitled to be paid wages and be provided with the service conditions on par with the labour working under the Direct Payment system in K.R.Nagar and Nanjangud and under No Work No Pay system in Gadikoppa and Shivamogga.&nbsp;&nbsp;<br></span><span style=\"font-size: 1.3125rem;\"><br>23.Thus, from the facts narrated above, the principal question that arises for consideration in these writ petitions is: “Whether the FCI can pay only minimum wages to the labour engaged through the contractors under the shield of a Labour Contract and thereby deprive the labour who are doing the same or similar work as other labour in other Depots, the wages and the service conditions that the labour in the other depots were being given?”&nbsp;&nbsp;</span><span style=\"font-size: 1.3125rem;\"><br></span></p><p style=\"font-size: 1.3125rem; text-align: justify;\"><span style=\"font-size: 1.3125rem;\">32. In view of the above fact, the further question that would arise for consideration is that, when the&nbsp; FCI&nbsp; decide to engage labour through a Contractor, whether they could resort to payment of merely the minimum wages and thereby get over the requirement of paying to the labour wages on the Equal Pay for Equal Work principle. In other words, whether the FCI could pay different wages to the labour who were engaged in discharging the same nature of work, merely because some of the labour were engaged through a Contractor.&nbsp; &nbsp;</span><br></p><p style=\"\"><div style=\"font-size: 1.3125rem; text-align: justify;\"><span style=\"font-size: 1.3125rem;\">41......even in respect of labour supplied through a Contractor, the mandate of the law is that those labour supplied by the Contractor would have to be necessarily paid the same rate of wages and be given the same benefit of the same service conditions as that of the labour who had been directly employed by the principal employer who were discharging the same or similar nature of work.&nbsp; &nbsp;</span></div></p><p style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">44.If the law itself mandates that a Contractor, who is licensed to supply contract labour, should pay the same rate of wages and provide the same service conditions to his labour as the labour directly employed by the&nbsp; principal employer, the principal employer cannot get&nbsp; over this statutory mandate by entering into a contract which stipulates that the Contractor would only be required to pay minimum wages and thereby defeat the constitutional principle of Equal Pay for Equal Work.&nbsp;&nbsp;</span></div></p><p style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">46.A Contract is basically an agreement between two consenting parties, who are competent to contract and who have entered into an agreement for a lawful consideration and with a lawful object. If the consideration or object of the contract is to do an act which is forbidden by law or is of such a nature that if it&nbsp; is permitted, would result in defeating the provisions of any law, then such a Contract, in law, is void (vide Section 10 and Section 23 of the Indian Contract Act).&nbsp;&nbsp;</span></div></p><p style=\"\"><div style=\"font-size: 1.3125rem; text-align: justify;\"><span style=\"font-size: 1.3125rem;\">50. ..the provisions of the Contract Labour&nbsp; (Regulation&nbsp; and Abolition) Act, 1970 would override any agreement that has been entered into between the principal employer and the Contractor, in respect of payment of wages to labour on the principle of Equal Pay for Equal Work.&nbsp;&nbsp;</span></div><span style=\"font-size: 1.3125rem;\"><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">58. The FCI, being a public sector undertaking, cannot seek to avoid its liability to pay the same wages to all its workers engaged in the task of loading and unloading in its depots, by resorting to a contract which basically nullifies a statutory term of the license. It is, therefore, necessary that the FCI be directed to pay the&nbsp; difference of wages that becomes payable to the labour under the impugned orders by applying the principle of Equal Pay&nbsp; for Equal Work.</span></div></span></p><p style=\"font-size: 1.3125rem;\"></p><p style=\"font-size: 1.3125rem;\"></p><p style=\"font-size: 1.3125rem;\"></p><p style=\"font-size: 1.3125rem;\"></p><p style=\"font-size: 1.3125rem;\"></p><p style=\"font-size: 1.3125rem;\"></p><span style=\"font-size: 1.3125rem;\"><p style=\"text-align: justify; \"><i style=\"font-size: 1.3125rem;\"><span style=\"font-weight: bolder;\">Compiled by S.Basavaraj, Daksha Legal.</span></i><br></p><o:p>&nbsp;</o:p><p></p><br><p></p><div style=\"text-align: justify;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/343703/1/WP11249-15-09-10-2020.pdf\" target=\"_blank\"></a></div><p></p><p style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"></p><p></p></span></div></h4><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n</p>', '883066f6eb15b6ccc730e24e4b0d4516.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-09', 1, '', '', '2020-12-12 15:38:04', '2020-12-30 20:33:31'),
(234, 'V0oOQYOyUXEN9OGshNHMm5UAj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'No Confidence Motion. Withdrawal after the meeting is convened', '<p style=\"text-align: justify;\"><b>Local Bodies. Can a No-Confidence motion be withdrawn after the meeting is convened? Case law discussed.</b></p><p></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The decentralization of power and vesting of powers to people at grassroots level has also created scenario which we can witness at the top level. One of the most litigated issue is motion of \'No Confidence\' being moved against the heads of local-self government i.e. Zilla Panchayats, Taluka Panchayats and Gram Panhayats.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Whether a motion for expressing lack of confidence in the Chairman of these local authorities be withdrawn \"after\" the meeting is fixed by the officer concerned has been considered by few High Courts. I didn\'t come across any judgment of the Supreme Court or the Karnataka High Court in this regard. The case laws quoted below dealt with a scenario where legislation and subordinate legislation are silent on this aspect.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">In Tarun Bhandari vs State of Haryana ILR (2006) P&amp;H 112, the Hon\'ble High of Punjab and Haryana considered the issue of withdrawal of no confidence motion \"after\" a meeting was convened. Rule 72A of Haryana Municipal Election Rules, 1978 provides that a motion of no confidence may be withdrawn at any time \'before\' the meeting is convened. In M.Ibeyaima Devi vs Mutum Babita Devi AIR 2000 Gou 124, the Hon\'ble Gauhati High Court held that the general Section 21 of the General Clauses Act which is enabling provision does not apply to the case and hence requisition for no confidence motion once submitted cannot be withdrawn. The same High Court also held in Mohd Abudl latiff vs State of Manipur 2010 SCC OnLine Gau 596 that once no confidence proceedings has been set in motion, the same cannot be withdrawn or cancelled.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">However, the Hon\'ble Madyapradesh High Court in Prabhakar Narayan Kelkar vs. State of Madhya Pradesh (Writ Petition 1368/1997 decided on 10:9:1998) held that the entire edifice raised on the foundation of the requisition crumbles to the ground in case the requisition itself is withdrawn. In the said case, the requisition for no confidence was submitted on 6:7:1996. The Commissioner, by his order dated 25:9:1996 requisitioned a special meeting for the consideration of the motion of no-confidence which was to be held on 8:10:1996. However, the requisition was withdrawn by the proposers on 5:10:1996 by informing the Commissioner that the aforesaid requisition was withdrawn. Receiving the intimation regarding withdrawal of the requisition the Commissioner passed an order dated 7:10:196 cancelling the meeting scheduled to be held on 8:10:1996 for consideration of the motion of no-confidence. In this context, the Hon\'ble High Court held that the meeting could not be held since the requisition itself is withdrawn though the withdrawal was many days after the meeting was actually fixed.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Noticing the judgment in Prabhakar Narayan Kelkar vs. State of Madhya Pradesh (Writ Petition 1368/1997 decided on 10:9:1998) the Hon\'ble Karnataka High Court (Justice R. Devdas) has in R. Krishnegowda and others vs State of Karnataka and others, (Writ Petition 10705/2020 decided on 7 October 2020, permitted the persons who moved the no-confidence motion to appear before the deputy Commissioner on the date of meeting and reiterate their withdrawal of requisition for no confidence. The Deputy Commissioner was directed to record the said aspect and thereafter drop the motion of no confidence.&nbsp;</span></div><br><b>Judgment link</b> <br>http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/342453/1/WP10705-20-07-10-2020.pdf<p></p><p><br></p>', 'f4a322adab60516820eda04522bec46c.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-12', 1, '', '', '2020-12-12 15:44:19', '2020-12-30 19:32:30'),
(235, 'vYc8Z9l3jWq2WnpWsxDNSS83y', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Road Risk policy. Meaning and limits explained.', '<p style=\"text-align: center; \"></p><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Trade (Road Risks) Policy covers only dealers of vehicles. Road Risk policy limits explained. Karnataka High Court.</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The Regional Manager, National Insurance Company Limited vs Sathi@Sathya and others. M.F.A. 8575/2015. Decided on 14 October 2010.&nbsp;</span></div><p></p><p style=\"text-align: center;\"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/10/capture-17.png?w=300\" alt=\"This image has an empty alt attribute; its file name is capture-17.png\"><br></p><p><b>Judgment link:</b><br> <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/343931/1/MFA8575-16-14-10-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/343931/1/MFA8575-16-14-10-2020.pdf<br></a><br><b>Relevant paragraphs: <br></b><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">13. Point No.1: Before considering the submissions made by the learned counsel appearing for the appellant, it is not in dispute that the sixth respondent is a dealer engaged in selling the cars and the sixth respondent being&nbsp; &nbsp;a dealer of cars, has insured the vehicle under reference with the fifth respondent under Motor Trade (Road Risks) Policy. The said insurance was in force with effect from 2nd September 2013 to 1st September 2014. In&nbsp; order&nbsp; to consider the risk covered under the Motor Trade (Road Risks) Policy, it is to be considered that a Motor Trade Insurance, also known as Road Risk Insurance is a policy designed to cover any injury, loss or damage to the third party caused by the vehicles involved in the business. This insurance is ideal to meet the business needs of individuals who are into the business of cars, motorbikes or&nbsp; are involved in buying and selling of cars, serving or running a garage, etc. The said policy covers or takes care of machinery replacement value to vehicle replacement, etc. The said policy also covers any loss, destruction&nbsp; or&nbsp; damage caused to the insured vehicle or its accessories by an insured event. But in case of death or bodily injury to any person due to alighting from the vehicle insured at the time of the incident will not be covered&nbsp; under&nbsp; this Insurance.&nbsp;</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">15. As observed above, the Motor Trade (Road Risks) Policy is a policy which covers only replacement of accessories, destruction or damage caused to the insured vehicle.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">18. Regarding registration of Motor Vehicle i.e., Trade Certificate, Rule 35 of the said Rules of 1989 prescribes as under:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">“35. Grant or renewal of trade certificate:- (1) On receipt of&nbsp; an&nbsp; application for the grant or renewal of a trade certificate in respect of a vehicle, the registering authority may, if satisfied that the applicant is a bona&nbsp; fide dealer and requires the certificates specified in the application, issue to the applicant one or more certificates, as the case may be, in Form 17 [within thirty days from the date of receipt of such an application]&nbsp; and&nbsp; shall assign in respect of each certificate a trade registration mark consisting of the registration mark referred to in the notification made under sub-section (6) of section 41 and followed by two letters and a number&nbsp; containing not more than three digits for each vehicle.”</span></div><div style=\"text-align: justify;\"><br></div>19. Rules 39, 40 and 41 of the said Rules of 1989 are relevant which reads as under:</p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>“39.</b> Use of trade registration mark and number:- (1) A trade registration&nbsp; mark and number shall not be used upon more than one vehicle at a time or upon any vehicle other than a vehicle bona fide in the possession of the dealer in the course of his business or on any type of vehicle other than the one&nbsp; for&nbsp; which the trade certificate is issued.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>40. </b>Restriction on use of trade certificate or trade registration mark and number:- A trade certificate&nbsp; shall&nbsp; be&nbsp; used only by the person to whom it is issued and such person shall not allow or offer or cause&nbsp; the certificate or the number assigned in connection therewith to be used by any other person:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Provided that the provision of this rule shall not apply where the person to whom the certificate is granted, or a person bona fide in his employment and acting under his authority, or any other person bona fide acting on behalf of the holder of a trade certificate is present in the vehicle, or if such vehicle is designed for use by only one person and is being used by a prospective purchaser of that vehicle for the purpose of reasonable test or trial.&nbsp;<br></span><span style=\"font-size: 0.875rem;\"><b>41.</b> Purpose for which motor vehicle with trade certificate may be used:- The holder of a trade certificate shall not use any vehicle in a public place under that certificate for any purpose other than the following:-<br></span><b style=\"font-size: 0.875rem;\">a.</b><span style=\"font-size: 0.875rem;\"> for test, by or on behalf of the holder of a trade certificate during the course of, or after completion of, construction of repair; or</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>b. </b>for proceeding to or returning from a weigh bridge for or after weighment, or to and from any place for its registration; or</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>c.</b> for a reasonable trial or demonstration by or for the benefit of a prospective purchaser and for proceeding to or returning from the place where such person intends to keep it; or</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>d. </b>for proceeding to or returning from the premises of the dealer or of the purchaser or of any other dealer for the purpose of delivery; or</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>e.</b> for proceeding to or returning from a workshop with the objective of fitting a body to the vehicle or painting or for repairs; or</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>f. </b>for proceeding to and returning from airport, railway station, wharf for or after being transported; or&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>g. </b>for proceeding to or returning from an exhibition of motor vehicles or any place at which the vehicle is to be or has been offered for sale; or&nbsp;</span></div><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">h. </b><span style=\"font-size: 0.875rem;\">for removing the vehicle after it has been taken possession of by or on behalf of&nbsp; the financier due to any default on the </span>part of<span style=\"font-size: 0.875rem;\">&nbsp;the other party under the provisions of an agreement of hire-purchase, lease or hypothecation.”</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">20. The motor vehicle which is registered in the name of the owner of the said vehicle and further as per sub-section (3) of Section 41 of the said Act of 1988, when once the registering authority issues certificate&nbsp; of registration to the owner of the motor vehicle, from the date of issuing a certificate of registration the&nbsp; person&nbsp; who has got registered the vehicle in his name will be the owner of the motor vehicle. That sub-section (1) of Section 140 provides that where death or permanent of any person has resulted from the accident out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">23. That as far as the Trade Certificate Insurance is concerned, sub-rule (1) of Rule 35 provides for grant or renewal of trade certificate.&nbsp; The said trade certificate&nbsp; will&nbsp; be issued to the bona fide dealer and further the use&nbsp; of trade registration mark and number Is concerned, sub- rule(1) of Rule 39 provides that trade registration mark and number shall not be used upon more than one vehicle at a time or upon any other vehicles bona&nbsp; fide in possession of&nbsp; a dealer in the course of its business.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">28.....The fifth respondent is not liable to pay the compensation as awarded by the Tribunal as the vehicle involved in the accident is covered under the Trade Certificate Policy. The said Trade Certificate Policy is applicable to the persons who are engaged in buying and selling the vehicles, etc.</span></div><i><br><b>Compiled by S.Basavaraj, Daksha Legal&nbsp;</b></i><p></p><h4><br></h4>', '0748460e5989c0cfc4b6f79633b6bed1.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-14', 1, '', '', '2020-12-12 16:03:25', '2020-12-30 19:28:26'),
(237, 'yctcM4GG5FytfUjIhFbceM5nG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Wife right to stay in her in laws house not absolute ', '<h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt\"></h4><p style=\"text-align: center;\"></p><p style=\"margin-bottom:0cm;margin-bottom:.0001pt\"><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">D.V. Act.\r\nWife\'s right to stay in her in-laws house not indefeasible. Senior Citizens not\r\nto be haunted by marital discord between their son and daughter in law.</b></div><b style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; font-weight: 400;\">Satish Chander Ahuja vs Sneha\r\nAjuja, Civil Appeal 2483/2020. Decided on 15 October 2020. Justice Ashok\r\nBhushan. Justice R. Subhash Reddy Justice M.R. Shah.</span></div></b><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">&nbsp;mother in law and father in law. The Supreme Court has\r\napproved directions of the High Court in this regard.</span></div></span><div style=\"text-align: justify;\"><b><br></b></div><b>&nbsp;Relevant paragraph: </b><br><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">83. Before\r\nwe close our discussion on Section 2(s), we need to observe that the right to\r\nresidence under Section 19 is not an indefeasible right of residence in shared\r\nhousehold especially when the daughter-in-law is pitted against aged\r\nfather-in-law and mother-in-law. The senior citizens in the evening of their\r\nlife are also entitled to&nbsp; live peacefully not haunted by marital discord\r\nbetween their son and&nbsp; daughter-in-law. While granting relief both in\r\napplication under Section&nbsp; rights of both the parties. The directions issued by\r\nHigh court&nbsp; in paragraph 56 adequately balances the rights of both the parties..&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The High Court gave directions\r\nthat where the wife specifically disputes&nbsp; the exclusive ownership rights of the\r\nin-laws over the suit&nbsp; premises notwithstanding the title documents in their\r\nfavour, the Trial&nbsp; Court, while granting her an opportunity to lead evidence in\r\nsupport of her claim, will be entitled to pass interim orders on applications\r\nmoved by the in-laws, directing the appellant to vacate the suit premises\r\nsubject to the provision of a suitable alternate accommodation to her under\r\nSection 19(1)(f) of the DV Act, which direction would also be subject to the\r\nfinal outcome of the suit. The Supreme Court has also held that suit by father\r\nin law for removal of his daughter in law from his property is maintainable and\r\nthat the pendency of proceedings under the D.V. Act or any order interim or\r\nfinal passed under the D.V. Act under Section 19 regarding the right of\r\nresidence is not an embargo for initiating or continuing any civil proceedings,\r\nwhich relate to the subject matter of the proceedings under the D.V. Act, 2005.</span></div><i><b><br>&nbsp;Compiled by S.Basavaraj,\r\nAdvocate Daksha Legal</b><br></i><o:p>&nbsp;</o:p></p><p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n</p>', 'b23fa49c5069b73100cee590347f016e.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-15', 1, '', '', '2020-12-12 16:26:59', '2020-12-30 19:16:44');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(238, 'dViOK2BABI3IiXiph7jkRznxM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Judgments cannot be swayed by emotions. Cases should be proved beyond reasonable doubt. ', '<h4></h4><p style=\"text-align: center;\"></p><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">\"Moral conviction bondering on strong suspicion is not an option with the Courts and cases should be proved beyond reasonable doubt\". Judgment of trial court \'swayed by emotions\' set aside. Karnataka High Court</span></div><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Justice Siddappa Sunil Dutt Yadav and Justice P. Krishna Bhat.&nbsp;</span></div></span><p></p><p style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Yankappa and another vs The State of Karnataka. Criminal Appeal 200020/2015. Decided on 16 October 2020.<br></span></p><p><b>Judgment link:</b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/344180/1/CRLA200020-15-16-10-2020.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/344180/1/CRLA200020-15-16-10-2020.pdf<br></a><br><b>Relevant paragraphs: </b><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Moral conviction bondering on strong suspicion is not an option with the Courts and cases should be proved beyond reasonable doubt is a salutary warning given by the Hon’ble Supreme Court of India in Mousam Singha Roy and Others vs. State of W.B. – (2003) 12&nbsp; SCC 377 and it is apt to refer to the following observation:&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">“27. Before we conclude, we&nbsp; must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victims in particular, by the fact that a heinous crime like this goes unpunished, but then the law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence.”&nbsp;</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">13. It is necessary to recall to our mind the prophetic observation of Hon’ble Mr. Justice Vivian Bose in the case of Kashmira vs. State of Madhya Pradesh AIR 1952 SC 159 as follows: “2. The murder was a particularly cruel&nbsp; and revolting one and for that reason it will be necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law.”&nbsp;</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">14. Unless a judge trying a heinous offence does not administer a caution to himself, especially, when his moral sense of justice is seriously disturbed, he is likely to fall into an error inducing in him “an instinctive reaction against a dispassionate judicial scrutiny of the facts and law”.&nbsp;</span></div><span style=\"font-size: 0.875rem; text-align: justify;\"><br>15. Baron Alderson in his address to the jury in Reg. vs. Hodge entered a warning as follows: “10. The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.” (Vide Hanumant,&nbsp; Son&nbsp; of&nbsp; Govind&nbsp; &nbsp;Nargundkar&nbsp; vs. State&nbsp; of&nbsp; Madhya&nbsp; Pradesh&nbsp; (AIR&nbsp; 1952&nbsp; SC 1952 – para 10).&nbsp;</span><br></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">16. A judge is required to be dispassionate. It may be a tall order; nevertheless, it is, and, should be his first creed. It is difficult to remain uninfluenced by impressions, passions, inclinations, predilections, tides, currents, events and even what is commonly regarded as “personal baggages” to which human mind is a normal habitat. The percipient and sage observation of B.N.Cardozo captures the essence of this problem. Says he: “I have spoken of the forces of which judges avowedly avail to shape the form and content of their judgments. Even these forces are seldom fully in consciousness. They lie so near the surface, however, that their existence and influence are not likely to be disclaimed. But the subject is not exhausted with the recognition of their power. Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge. .….. There has been a certain lack of candor in much of the discussion of the theme, or rather perhaps in the refusal to discuss it, as if judges must lose respect and confidence by the reminder that they are subject to human limitations. ……. None the less, if there is anything of reality in my analysis of the judicial process, they do not stand aloof on these chill and distant heights; and we shall not help the cause of truth by acting and speaking as if they do. The great tides and currents which engulf the rest of men do not turn aside in their course&nbsp; and pass the judges by. We like to figure to ourselves the processes of justice as coldly objective and impersonal. The law, conceived of as a real existence, dwelling apart and alone, speaks, through the voices of priests and ministers, the words which they have no choice except to utter. That is an ideal of objective truth toward which every system of jurisprudence tends. It is an ideal of which great publicists and judges have spoken as of something possible to attain. \"The judges of the nation,\" says Montesquieu, \"are only the mouths that pronounce the words of the law, inanimate beings, who can moderate neither its force nor its rigor.\"28 So Marshall, in Osborne v. Bank of the United States, 9 Wheat. 738, 866: The judicial department \"has no will in any case....Judicial power is never effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or in other words, to the will of the law.\" (The Nature of the Judicial Process: Benjamin N. Cardozo (Author): Ninth Indian Reprint 2011: Universal Law Publishing Co. Pvt. Ltd.).&nbsp;</span><br></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">17. A judge has no ‘will’ of his own. In&nbsp; the calling of a judge his only ‘will’ is, only ‘choice’ he has is if that can be called one – to give force to the ‘cumulative effect’ of the evidence placed before him taking inspiration from the statutes applicable and settled precedents.&nbsp;</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">18. With due deference to the learned Sessions Judge, we feel it necessary to observe that he has precisely lapsed into the mental mould Baron Alderson so felicitously warned the learned brethren of the judiciary to guard against.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">32. On a re-appreciation of the evidence on record, we are satisfied that there is nothing to support the conclusion arrived at by the learned Sessions Judge and he has entirely acted on hunches, instincts and conjectures which is impermissible in law. Therefore, the impugned judgment dated 31.12.2014 convicting the appellants for the offences punishable under Sections 302, 498-A read with Section 34 of IPC is liable to be set aside.</span></div><i><br><b>Compiled by S.Basavaraj, Advocate, Daksha legal.&nbsp;</b></i><p></p><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/344180/1/CRLA200020-15-16-10-2020.pdf\" target=\"_blank\"></a></h4><p><br></p>', '1f33590c5db4a0a40aea35fbf127c616.png', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-16', 1, '', '', '2020-12-12 16:35:26', '2020-12-30 19:13:38'),
(239, 'aGWFpOqljsIaZRTNDRZaS8Atz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr. P.C. Incriminating material. Can be utilized against the accused only if the same is brought to his attention with opportunity to explain it. ', '<h4></h4><p style=\"text-align: left;\"></p><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Marilingappa vs The State through C.P.L. Shahapur. Criminal Appeal 200045/2014. Decided on 15 September 2020. Bench Justice Krishna S Dixit and Justice Krishna P Bhat.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Marilingappa vs The State through C.P.L. Shahapur. Criminal Appeal 200045/2014. Decided on 15 September 2020. Bench Justice Krishna S Dixit and Justice Krishna P Bhat. Judgment delivered by-Justice Krishna P Bhat</span></div><p></p><p style=\"text-align: left;\"><span style=\"font-size: 1.3125rem;\"><b>Judgement Link: </b></span><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/339849/1/CRLA200045-14-15-09-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/339849/1/CRLA200045-14-15-09-2020.pdf</a><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/339849/1/CRLA200045-14-15-09-2020.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\"><br><b style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255); color: rgb(0, 0, 0);\"><br>Relevant Paragraphs:</b></a><br><span style=\"font-size: 1.3125rem; text-align: justify;\">16. It is well settled that incriminating material available in the deposition of prosecution witnesses can be utilized against the accused to his detriment only if the same is brought to the attention of the accused and an opportunity is given to him to explain the same. Any violation of the above, results in serious prejudice to the accused/appellant.</span></p><p></p><p></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">18. Observing the above mandate of the law in a criminal trial is not an empty formality. An onerous responsibility is cast on the Trial Judge to put each incriminating aspect of the case available in the evidence pointedly to the accused and record his reply to the same faithfully in a question and answer manner. The duty cast under Section 313 of Cr.P.C. is a solemn one. Any laxity in recording the statement under&nbsp; Section 313 of Cr.P.C. will have serious consequences on the life and liberty of the person facing prosecution and more so when he is facing serious charges like the one under Section 302 of IPC.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">19. This Court had an opportunity to elaborately explain the importance and mandatory nature of the duty of recording statement under Section 313 of Cr.P.C. and the manner in which the Trial Judge has to discharge the same. The case in point is the one reported&nbsp; &nbsp; in&nbsp; &nbsp; ILR&nbsp; &nbsp; 1991&nbsp; &nbsp; KAR&nbsp; &nbsp; 1542&nbsp; &nbsp; (State&nbsp; &nbsp; vs. Dasharath). (paras 5 to 12 extracted).</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">20. The above interpretation of the mode of recording the statement and the role of the trial judge in the same has been approved by the Hon’ble Supreme Court of India in various decisions and also reiterated by this Court. In view of the above violation of the precious right of the accused to know the incriminating circumstances available on record and also denial of an opportunity to offer his explanation to the same which has serious implication on his life and liberty in this case, it is necessary to set aside the impugned judgment and remand the case to the learned Sessions Judge for formulating proper questions for putting the same while examining the accused under Section 313 of Cr.P.C. keeping in view the observations of this Court as extracted above in Dasharath’s case and thereafter hear and pronounce the judgment in accordance with law. This view of ours receives support from the decision of Hon’ble Supreme Court of India reported in (2015) 1 SCC 496 (Nar Singh vs. State oƒ Haryana – (Paragraph Nos.27, 28 &amp; 29 extracted)</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b><br>ORDER:</b> Accordingly, the judgment and order of the learned Sessions Court at Yadgiri in S.C.No.35/2011 dated 06.01.2012 is set aside and the matter is remanded to it to proceed with the case from the stage of recording the statement of appellant keeping in view the observations of this Court in Dasharath’s case and decision&nbsp; of&nbsp; Hon’ble&nbsp; Supreme&nbsp; Court&nbsp; of&nbsp; India&nbsp; in Nar Singh’s case and thereafter shall dispose of the case in accordance with law. Since the case is of the year 2011, learned Sessions Judge shall conclude the entire exercise within a period of three months from the date of receipt of certified copy of this judgment. The accused-appellant shall remain in judicial custody.</span></div><b><br>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b><p></p><p></p><h4 style=\"text-align: center;\"></h4><div style=\"text-align: center;\"></div>', '28065dd90d6c2c8048230d80d92d36b3.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-09-15', 1, '', '', '2020-12-12 16:44:20', '2020-12-30 19:10:02'),
(279, 'mHzwH9DIcQn3mGFTo6Wj2zhwQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Tender. Author of the tender document is the best person to understand and appreciate its requirements. Such interpretation should not be second-guessed by a court in judicial review proceedings. Supreme Court.', '<p><b>M/s. Galaxy Transport Agencies, Contractors, Traders, Transports and Suppliers vs M/s. New J.K. Roadways, Fleet Owners and Transport Contractors and others. Special Leave Petition (Civil) 127/2020 decided on 18 December 2020.<br></b><br><b>Judgment Link: </b><br><a href=\"https://main.sci.gov.in/supremecourt/2020/22944/22944_2020_33_1501_25092_Judgement_18-Dec-2020.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/22944/22944_2020_33_1501_25092_Judgement_18-Dec-2020.pdf<br></a><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Cases relied on: Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., 2016 (16) SCC 818, Bharat Coking Coal Ltd. v. AMR Dev Prabha 2020 SCC OnLine SC 335, Silppi Constructions Contractors v. Union of India, 2019 SCC OnLine SC 1133, Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, Montecarlo Ltd. v. NTPC Ltd., 2016 (15) SCC 272.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Cumulative Ratio. Judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes. The courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable. The owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court’s interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes.</span></div><i><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></i></p>', 'fbc41cae37e7272ceace86820fe1d85e.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-18', 1, '', '', '2020-12-20 18:55:22', '2020-12-28 22:46:53'),
(280, 'FCTzKYHFWXTOY0HfcygDcyyUU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration. Forfeiture of lease for non payment of rent. Arbitrator has powers to invoke equitable jurisdiction under Sections 114 and 114A of Transfer of Property Act to relieve lessee from forfeiture if the arrears of rent are paid. Supreme Court.', '<p><b>Suresh Shah vs Hipad Technology India Private Limited. </b></p><p><b>Arbitration Petition (Civil)(S) 8/2020 decided on 18 December 2020. </b></p><p><b>Chief Justice S. A. Bobde, Justice A. S. Bopanna and Justice V. Ramasubramanian.<br></b></p><p><b>Judgment Link:<br><a href=\"https://main.sci.gov.in/supremecourt/2020/4768/4768_2020_31_1502_25082_Judgement_18-Dec-2020.pdf\" target=\"_blank\" style=\"background-color: rgb(255, 255, 255); font-size: 0.875rem;\">https://main.sci.gov.in/supremecourt/2020/4768/4768_2020_31_1502_25082_Judgement_18-Dec-2020.pdf</a></b></p><p><b style=\"\">Relevant paragraphs:</b> <br><span style=\"font-size: 0.875rem; text-align: justify;\"><br>15. A perusal of the provisions indicate the manner in which the determination of lease would occur, which also includes determination by forfeiture due to the acts of the lessee/tenant in breaking the express condition agreed between the parties or provided in law. The breach and the consequent forfeiture could also be with respect to nonpayment of rent. In such circumstance where the lease is determined by forfeiture and the lessor sues to eject the lessee and, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, Section 114 of TP Act provides that the Court instead of passing a decree for ejectment may pass an order relieving the lessee against the forfeiture due to which the lessee will be entitled to hold the property leased as if the forfeiture had not occurred. Under Section 114A of the TP Act a condition for issue of notice prior to filing suit of ejectment is provided so as to enable the lessee to remedy the breach.</span><br></p><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">16. Such equitable protection does not mean that the disputes relating to those aspects between the landlord and the tenant is not arbitrable and that only a Court is empowered to waive the forfeiture or not in the circumstance stated in the provision. In our view, when the disputes arise between the landlord and tenant with regard to determination of lease under the TP Act, the landlord to secure possession of the leased property in a normal circumstance is required to institute a suit in the Court which has jurisdiction. However, if the parties in the contract of lease or in such other manner have agreed upon the alternate mode of dispute resolution through arbitration the landlord would be entitled to invoke the arbitration clause and make a claim before the learned Arbitrator.</span><b style=\"font-size: 0.875rem;\"> </b><span style=\"font-size: 0.875rem;\">Even in such proceedings, if the circumstances as contained in Section 114 and 114A of TP Act arise, it could be brought up before the learned Arbitrator who would take note of the same and act in accordance with the law qua passing the award. In other words, if in the arbitration proceedings the landlord has sought for an award of ejectment on the ground that the lease has been forfeited since the tenant has failed to pay the rent and breached the express condition for payment of rent or such other breach and in such proceedings the tenant pays or tenders the rent to the lessor or remedies such other breach, it would be open for the Arbitrator to take note of Section 114, 114A of TP Act and pass appropriate award in the nature as a Court would have considered that aspect while exercising the discretion.</span></div>', '56455bc8d72290b76058c7c5d0a34ef2.jpeg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-25', 1, '', '', '2020-12-20 19:39:45', '2023-01-25 10:46:12'),
(281, '76UcKaDxR3JHnrKpRd3jjqEaZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constitution of India. Vote cast by a MLA in Rajya Sabha election in the forenoon is valid though he is disqualified due to conviction and sentence by a Criminal Court in the afternoon. Supreme Court.', '<p><b>Pradeep Kumar Sonthalia vs Dhiraj Prasad Sahu @ Dhiraj Sahu and another. Civil Appeal 611/2020 decided on 18 December 2020.</b></p><p><b>Judgment Link:</b><br> <a href=\"https://main.sci.gov.in/supremecourt/2020/2897/2897_2020_31_1501_25082_Judgement_18-Dec-2020.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/2897/2897_2020_31_1501_25082_Judgement_18-Dec-2020.pdf</a><a href=\"https://main.sci.gov.in/supremecourt/2020/2897/2897_2020_31_1501_25082_Judgement_18-Dec-2020.pdf\" target=\"_blank\"></a></p><p><span style=\"text-align: justify;\">Constitution of India. Vote cast by a MLA in Rajya Sabha election in the forenoon is valid though he is disqualified due to conviction and sentence by a Criminal Court in the afternoon. Supreme Court.</span><br><b style=\"font-size: 0.875rem;\"><br>Relevant paragraphs:</b><br></p><p></p><p></p><p style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">11. Article 191 of the Constitution speaks of the circumstances under which a person will be treated as disqualified (i) either for being chosen as (ii) or for being, a member of the State Legislative Assembly. The language of Article 191 makes it clear that it covers both a contest in an election and the continuance in office after getting elected.</span></p><p style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">12. If a person, being a member of the Assembly, suffers a disqualification, his seat becomes vacant.(Article 190).</span><span style=\"font-size: 0.875rem;\"><br></span></p><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">13. It is clear as daylight that the event which causes the disqualification under Article 191(1)(e) read with Section 8(3) of the Representation of People Act is a conviction of a person for any of the specified offences. The consequence of such disqualification is that the seat becomes vacant. Obviously therefore, a Member of the Legislative Assembly who has become disqualified and whose seat has become vacant is not entitled to cast his vote for electing a representative from his State under Article 80(4) which provides that the representatives of each State “shall be elected by the elected members”. His name is liable to be deleted from the list of members of the State Legislative Assembly maintained under Section 152 of the Representation of the People Act, 1951. He ceases to be an elector in relation to election by assembly member and cannot cast his vote.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">17. The disqualification under Section 8 of Act 43 of 1951 is relatable to Article 191(1)(e) of the Constitution. Therefore, any interpretation to Section 8 should be in sync with the Constitutional scheme.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">19. Once the period of disqualification starts running, the seat hitherto held by the person disqualified becomes vacant by virtue of Article 190(3) of the Constitution. While speaking about the seat of the disqualified person becoming vacant, Article 190(3) uses the expression “thereupon”. We may have to keep this in mind while interpreting the words “the date of such conviction”.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">30. We must point out at this juncture that even in criminal law, there is a vast difference between (i) the interpretation to be given to the expression “date”, while calculating the period of imprisonment suffered by a person and (ii) the interpretation to be given to the very same expression while computing the period limitation for filing an appeal/revision.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">32. We have no doubt that disqualification is not a penal provision and that the object of disqualification is to arrest criminalisation of politics.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">33. But what triggered the disqualification in this case, under Section 8(3) was a conviction by a criminal Court, for various offences under the Penal Code. Therefore, the phrase “the date of conviction” appearing in Section 8(3) should receive an interpretation with respect to the penal provisions under which a person was convicted.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">34. The rule that a person is deemed innocent until proved guilty is a long-standing principle of constitutional law and cannot be taken to be displaced by the use of merely general words.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">35. In our view to hold that a Member of the Legislative Assembly stood disqualified even before he was convicted would grossly violate his substantive right to be treated as innocent until proved guilty. In Australia this principle has been described as an aspect of the rule of law “known both to Parliament and the Courts, upon which statutory language will be interpreted”</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">37. The well-known presumption that a man is innocent until he is found guilty, cannot be subverted because the words can accommodate both competing circumstances. While it is known that an acquittal operates on nativity, no case has been cited before us for the proposition that a conviction takes effect even a minute prior to itself. Moreover, the word “date” can be used to denote occasion, time, year etc. It is also used for denoting the time up to the present when it is used in the phrase “the two dates”. Significantly, the word “date” can also be used to denote a point of time etc.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">39. Inasmuch as a conviction for an offence is under a penal law, it cannot be deemed to have effect from a point of time anterior to the conviction itself.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">61. Therefore, on the first issue we hold that the vote cast by Shri Amit Kumar Mahto at 9:15 a.m. on 23.03.2018 was rightly treated as a valid vote. To hold otherwise would result either in an expectation that the Returning Officer should have had foresight at 9:15 a.m. about the outcome of the criminal case in the afternoon or in vesting with the Election Commission, a power to do an act that will create endless confusion and needless chaos.</span></div><i><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></i><p></p>', '788780285132fad534a818442b4c9c2b.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-18', 1, '', '', '2020-12-20 20:17:32', '2020-12-28 17:56:13'),
(282, 'XTijquLXCC8iEGao7qTLSLVlf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Authoritative judgment on ‘In-country adoption’. When one of the Prospective Adoptive Parents is a foreigner and the other Indian the case shall be treated as ‘Indian Living in India’. Karnataka High Court', '<p><b>Ankur Gupta and another vs The Central Adoption and Resources Agency and others. Writ Petition 12427/2018 decided on 19 June 2018.</b><br><br><b>Judgment Link:</b> <br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/220296/1/WP12427-18-19-06-2018.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/220296/1/WP12427-18-19-06-2018.pdf<br></a><br><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Overture : </b><span style=\"font-size: 0.875rem;\">“MY NAME IS “TODAY”. “We are guilty of many errors and many faults, But our worst crime is abandoning the children; Neglecting the fountain of life. Many things we need can wait, But the child cannot. Right now is the time; His bones are being formed, His blood is being made, His senses are being developed. To him, we cannot answer, “Tomorrow”, His name is “Today”.</span></div><br><b>Relevant paragraphs: </b><br><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">16. Hague Convention on Inter Country Adoption came to be signed on 9:1:2003 and has come into force with effect from 1:10:2003 in India. The Hague Convention of 29.05.1993 on Protection of Children and Co-operation In respect of Inter-country Adoption (Hague Adoption Convention) protects children and their families against risks of illegal, irregular, premature or ill prepared adoptions. This convention, which operates through a system of National Central Authorities and reinforces the UN Convention on the rights of the child (Article 21) and seeks to ensure that Inter Country adoptions are made in the best interest of the child and with respect to his or her fundamental rights.&nbsp; It also seeks to prevent the&nbsp; abduction, the&nbsp; sale&nbsp; of, or trafficking of children. As already noticed herein above, India became a signatory to this Convention on 09.01.2003. The signatories to the Hague Convention Treaty are bound by it.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">17. Article 4(b) of the Hague Convention 1993 mandate that a child is first placed for adoption in the State of origin and only after&nbsp; exploring&nbsp; such possibilities, said child should be placed for inter- country adoption. In fact, Section 59(1) of Juvenile Justice Act is in paramateria with Article 4(b) of Hague Convention. A bare reading of said provision would disclose that in the event of a child not being able to be placed with an Indian or Non-resident Indian PAP’s within 60 days from the date such child has been declared legally free for adoption, it would be free for inter-country adoption.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">18. The principle underlying for grant of&nbsp; adoption of a child to the PAPs is to ensure the safety of the child or in other words, to ensure that child would&nbsp; not be placed in any hostile atmosphere or driven to any illegal activity for no fault of it and to ensure welfare of such children stringent steps are required&nbsp; to&nbsp; be&nbsp; adopted. In other words, the&nbsp; pivotal&nbsp; consideration would be the paramount interest of the child and to ensure prevention of trafficking or child being used for gain.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">19. ….adoption Regulations notified in exercise of its powers conferred by clause (c) of Section 68 read with clause (3) of Section 2 of Juvenile Justice Act which has come into force with effect from 04.01.2017 and thereby said regulations have acquired statutory force.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">22. Chapter III of the Regulation provides for procedure for adoption by PAP’s who are&nbsp; resident Indians and Chapter IV provides for adoption by PAP’s who are non resident Indian, Overseas Citizen of India and Foreign Prospective Adoptive Parents. Regulation 14 as found in Chapter IV would indicate&nbsp; that&nbsp; Non&nbsp; Resident Indian Prospective Adoptive Parents would be treated at par with Indians living in India in terms of priority of adoption of Indian orphan, abandoned or surrendered children. Regulation 21(1)&nbsp; discloses&nbsp; if&nbsp; one of the PAP’s is a foreigner and other is an Indian, such cases shall be treated at par with Indians living in India.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">30.….first petitioner was an Indian citizen and second petitioner though was of Indian origin, had acquired the citizenship of USA by birth and as such, she has clearly declared in the first application her nationality by birth as ‘USA Citizen’. It would be apt and appropriate to note at this juncture, at the cost&nbsp; of&nbsp; repetition,&nbsp; that&nbsp; Regulation&nbsp; 21(1)&nbsp; mandates that even if one of the PAP is a foreigner&nbsp; and&nbsp; the other is an Indian, such case is to be treated on par with the Indians living in India. Petition allowed. Mandamus is issued to&nbsp; respondents to consider and examine the application submitted by petitioners ..by keeping in mind the observations made herein above.</span></div></p><p><i><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></i></p>', '63f113bab4f8f69b3610b36ee060058c.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2018-06-19', 1, '', '', '2020-12-21 01:10:49', '2020-12-28 17:49:10'),
(283, 'Le6a9YKgzpF48JYpGTwqi17ww', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Order XII Rule 6. Judgment on admissions. Admission must be absolute and not interlinked with issues to be determined after evidence. Karnataka High Court.', '<p><b>C.R. Shivaji vs C.B.Madhookar and others.</b></p><p><b> Writ Petition 16288/2014 decided on 5 March 2019.</b></p><p><b>Justice B. Veerappa.&nbsp;<br><br></b></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>19. A plain reading of the provisions of Order XII Rule 6 of the Code of Civil Procedure clearly depicts that where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having&nbsp; regard&nbsp; to&nbsp; such admission. Whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.</b></span></div><b><br></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>20. The provisions of Order XII Rule 6 of the Code of Civil Procedure clearly indicates the admission made by the defendants has to be&nbsp; without waiting for determination of any other questions between the parties.</b></span></div><b><br></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>22. Janardhan Jog vs. Srikrishna reported in ILR&nbsp; 1989 KAR 1895 an admission contemplated by Order XII Rule 6 of the Code of Civil Procedure, has to be an absolute admission, capable of being worked out by itself. The other questions to be determined in the suit, on decree being made under Order XII Rule 6, should be such independent questions, reliefs granted on which should be capable of being granted without affecting the former decree (i.e, the&nbsp; one&nbsp; passed on the&nbsp; basis of&nbsp; admission). If the admitted fact cannot independently&nbsp; stand,&nbsp; and the ultimate relief or reliefs to be granted in the suit is interlinked with those facts, then, it will not be a proper exercise of the discretion, to make a decree under Order XII Rule 6 of the Code of Civil Procedure.</b></span></div><p></p>', '8c45f279939bf4c322093533b2a966ad.JPG', 'dbe433f585d5fba2a4495a4c63fa9eaa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-02', 1, '', '', '2020-12-21 02:15:30', '2023-02-02 16:39:29'),
(284, 'lWBAwiXQd0V0fSWgMRTxxsjwB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'D.J.Halli incident. ‘Accused prima facie took law in to their hands by indulging in looting houses burning private and police vehicles which cannot be tolerated’. Karnataka High Court refuses bail.', '<p><b>Syed Imran vs The State of Karnataka. Criminal Petition 5785/2020 decided on 23 November 2020.</b></p><p><br><b>Judgment Link:<br></b><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352769/1/CRLP5785-20-23-11-2020.pdf\" target=\"_blank\" style=\"background-color: rgb(255, 255, 255); font-size: 0.875rem;\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352769/1/CRLP5785-20-23-11-2020.pdf</a></p><p><br><b>Relevant paragraphs: </b><br><br></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">9. It is not in dispute that on 11.08.2020 about&nbsp; two thousand to three thousand miscreants gathered at about 8.00 pm by holding deadly weapons and&nbsp; have&nbsp; barged into the house of respondent No.2. They have not only destroyed all the household articles but have also looted gold and silver ornaments, as well as cash property documents. Thereafter they set the entire house on fire including the vehicles, two police stations, 86 private vehicles and 57 police vehicles. It&nbsp; is&nbsp; the&nbsp; specific contention of the learned counsel for&nbsp; petitioner-accused that the gravity of the offences cannot be a ground to deny bail and grant or refuse to grant bail lies within the discretion of the Court and it will be related to a larger extent, by the facts and circumstances of each particular case. In that light he has relied upon the decision in the case&nbsp; of&nbsp; Sanjay Chandra&nbsp; V.s&nbsp; Central&nbsp; Bureau&nbsp; &nbsp;of Investigation (2012) 1 SCC 40 ““&nbsp;</span><span style=\"font-size: 0.875rem;\">40. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required.”</span></div><p></p><p></p><p style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">15…..The primary purpose of bail in criminal cases is to relieve the accused of imprisonment and also to relieve the said burden of keeping him in jail during a pending trial. At the same time to keep the accused in the custody of the Court whether before or after the conviction to assure that he will submit to the jurisdiction of the Court and will be in attendance there on whenever his presence is required. It is also noticed from the said decisions quoted supra, that while granting or refusing bail the Court has to take into consideration certain aspects. So in that light, I want to rely upon decision of the Hon’ble Apex Court in the case of Sidramappa Sathalingam&nbsp; Methri&nbsp; V.s&nbsp; State&nbsp; &nbsp;of Maharashtra reported in (2011)1 SCC 684 and subsequently Hon’ble Apex Court has re-visited the said decision in the case of Susheel Agarwal V.s State reported in (2020) Volume 5 SCC 1. Ultimately, the Court has laid down certain guidelines on the basis of which a bail application has could be considered with reference to the&nbsp;</span><span style=\"font-size: 0.875rem;\">facts of each of the cases at hand. It is brought to the notice of this Court in the case of Virupakshappa Gouda V.s State of Karnataka and another reported in (2017) 5 SCC 406 that Sanjay Chandra case, cannot be made applicable in each and every case for grant of bail.&nbsp;</span></p><p style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">18. Be that as it may as could be seen from the records, accused persons not only barged into the house of respondent No.2 and looted, destroyed house hold articles, they have burnt public properties i.e., two police stations, 86 private vehicles and 57 police vehicles. It shows that accused persons have taken law into their hands and have damaged the property and have created commotion in the society. Such act should not be encouraged. Bail petitions dismissed.</span></p><p><b><br><i>Compiled by S. Basavaraj, Advocate, Daksha Legal.</i></b></p>', '1821ffac3faff03cc790fa5105c59745.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-23', 1, '', '', '2020-12-21 20:34:33', '2020-12-29 17:09:59'),
(285, 'I7rdVWidDpG6JDApXF2ZSXgWj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Zonal Regulations under the Revised Master Plan. Permitted usage of land is again subject to mandatory Space Standards. Karnataka High Court.', '<p><b>Suvarnamamma and others vs The State of Karnataka and others. Writ Petition 11744/2020 decided on 15 December 2020.<br><br>Judgment Link:<br></b><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354027/1/WP11744-20-15-12-2020.pdf\" target=\"_blank\"><b>http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354027/1/WP11744-20-15-12-2020.pdf</b><br></a><b><br>Relevant paragraphs:<br></b> <br></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">11. In Chapter 2.0 of the Zonal Regulations, various land uses permissible within each zone are listed. There are five main categories under which the land uses are grouped. They are Residential, Commercial, Industrial, Transportation, Public and Semi-Public. In the Tables enumerated under each category, there are sub classifications.&nbsp; But,&nbsp; most&nbsp; importantly, before the Tables could commence, a Clause which reads as follows, is provided: Though the various uses are listed, the corresponding Space&nbsp; Standards&nbsp; for buildings/uses are to be referred. The two main parameters are minimum size&nbsp; of Plot and the minimum width of Road.</span></div><div style=\"text-align: justify;\"><br></div><span style=\"color: rgb(0, 0, 0); font-family: -apple-system, BlinkMacSystemFont, \" segoe=\"\" ui\",=\"\" roboto,=\"\" \"helvetica=\"\" neue\",=\"\" arial,=\"\" \"noto=\"\" sans\",=\"\" sans-serif,=\"\" \"apple=\"\" color=\"\" emoji\",=\"\" \"segoe=\"\" ui=\"\" symbol\",=\"\" emoji\";=\"\" font-size:=\"\" 14px;=\"\" font-style:=\"\" normal;=\"\" font-variant-ligatures:=\"\" font-variant-caps:=\"\" font-weight:=\"\" 400;=\"\" letter-spacing:=\"\" orphans:=\"\" 2;=\"\" text-align:=\"\" left;=\"\" text-indent:=\"\" 0px;=\"\" text-transform:=\"\" none;=\"\" white-space:=\"\" widows:=\"\" word-spacing:=\"\" -webkit-text-stroke-width:=\"\" background-color:=\"\" rgb(255,=\"\" 255,=\"\" 255);=\"\" text-decoration-thickness:=\"\" initial;=\"\" text-decoration-style:=\"\" text-decoration-color:=\"\" display:=\"\" inline=\"\" !important;=\"\" float:=\"\" none;\"=\"\"><div style=\"text-align: justify;\">12. What is noticeable is even at Sl.No.10, in C2 category of Commercial uses, where fuel stations and pumps are provided, it is clearly written in the brackets, “as&nbsp; per&nbsp; Table 7”. It is also noticeable that at Sl.No.11, which provides for Kalyana Mantaps, again it says, as per Table 7. Going by Clause 4.6.2 which regulates Commercial Axes, a Kalyan Mantap could be constructed if the plot size is more than 240 sq. mtrs.</div></span><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">15. In Union of India Vs. Tata Chemicals Limited (2014) 6 SCC 335, it was held that it is a cardinal principle of interpretation of statutes that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning unless&nbsp; such construction leads to some absurdity or unless there is something in the context or in the object of the statute to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of a statute&nbsp; are&nbsp; clear, plain and unambiguous, then the courts are bound to give effect to that meaning irrespective of the&nbsp; consequences.&nbsp; It is said that the words themselves best declare the intention of the law giver. The courts have adhered&nbsp; to&nbsp; the&nbsp; principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have proper application&nbsp; in the circumstances conceivable within the contemplation of&nbsp; the statute.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">16 &amp;17…It is rather unfortunate that the opinion/advise of the Commissioner, BDA, was not heeded to. If the contesting respondents have proceeded inspite of such opinion expressed by the authorities of BDA, the respondents have taken the risk and they are to blame themselves. For the foregoing reasons, this Court is of the considered opinion that the NOCs granted by the Health Officer, BBMP and the Commissioner of Police, Bengaluru City, cannot be sustained.</span></div><i><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></i><p></p>', '4c008ed88dd9e3643432109336b44dfc.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-15', 1, '', '', '2020-12-22 00:51:15', '2020-12-29 17:09:24');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(288, '3kiPvvnDOVnCH8uIzc2pNHmC8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal case against Chief Minister Mr. B.S.Yedyurappa. Karnataka High Court deprecates laxity on the part of Lokayukta Police in conducting investigation. Petition to quash criminal proceedings dismissed.', '<p><b>B.S.Yedyurappa vs State of Karnataka and another. Writ Petition 5043/2019 decided on 22 December 2020.<br><br>Judgment Link: <br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354333/1/WP5043-19-22-12-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354333/1/WP5043-19-22-12-2020.pdf<br></a><br>Relevant paragraphs:</b><br><span style=\"font-size: 0.875rem; text-align: justify;\"><br>3(v) …..it is now well settled that the inherent powers under section 482 of Cr.P.C. can be exercised to give effect to an order under the Code to prevent abuse of process of the court or to otherwise secure the ends of justice. The inherent powers under this section should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without full material. In MADHAVRAO JIWAJIRAO SCINDIA vs. SAMBHAJIRAO CHANDROJIRAO ANGRE reported in 1988 Criminal Law Journal 853, it is held that ““… The legal position is well settled that when a prosecution at the initial stage is asked to quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue.”</span><br></p><p></p><p></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">3(vi) Tested on the touchstone of the above settled legal principle, the allegations made in the above complaint and the material produced in support thereof prima facie make out ingredients of the offences alleged against the petitioner. In that view of the matter, the contention urged by the learned Senior Counsel for petitioner that in view of quashing of the FIR registered against accused No.1, the proceedings initiated against the petitioner deserve to be quashed are legally untenable. “Even Though learned Special PP for respondent No.1 has sought to explain this delay by filing Objections to the said Memo inter alia contending that subsequent to the orders passed by the Special Court under section 156(3) Cr.P.C., accused No.1 approached this Court seeking to quash the FIR in W.P. No.8885/2015 and subsequently, the proceedings against accused No.1 stood quashed by orders of this court dated 09.10.2015 and on 14.01.2016, respondent No.2 / complainant approached the Hon’ble Supreme Court against the order issued in W.P.No.8885/2015 and by order dated 30.03.2017 in SLP.No.1370/2016, the Hon’ble Supreme Court dismissed the Special Leave Petition, yet the investigation insofar as&nbsp; petitioner/ accused No.2 having not been stalled, the explanation offered on behalf of respondent No.1, in the circumstances of the case, is totally irrelevant and cannot be accepted. The circumstances noted above clearly indicate that the delay is intentional and deliberate. Though, at this&nbsp; juncture, it cannot be said that respondent No.1 has succumbed to the pressure of the petitioner, who has been holding the position of the Chief Minister of the State of Karnataka, yet respondent No.1 being an independent and impartial body entrusted with the duty to investigate into the misconduct of the public servants objectively cannot give rise to an impression in the mind of the general public that it is playing into the hands of the political bigwigs. Even Though the delay in the matter calls for action, as ordered by the Hon’ble Supreme Court in DHANALAKSHAMMA’s case, referred supra, but in the circumstances of the case, having regard to the fact that the investigation is still in progress, I refrain from directing any action against the Lokayukta Police entrusted with the investigation, lest it would prejudice the investigation. However, the laxity in conducting the investigation in the instant case is deprecated and to the Lokayukta Court is directed to keep watch over the investigation ordered by the Criminal Courts in respect of the misconduct of public servants and MPs and MLAs involved in the commission of criminal offences. In the light of the above discussion and for the reasons stated above, the petition is dismissed.</span></div><i><br><b>Compiled by S. Basavaraj Advocate Daksha Legal.</b></i><p></p>', '9b52ce1b4d0231aec9b2b0d7528e0252.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-22', 1, '', '', '2020-12-23 02:31:15', '2020-12-28 16:59:02'),
(289, 'lPnt2MxRgnnbZx4Tlt4khaPKl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bail is not a licence to commit repeated crimes. Crimes perpetrated against society must be viewed differently. Karnataka High Court.', '<p><b>Aluka Sandra Orewa @ Benny vs State of Karnataka. Criminal Petition 6286/2020 decided on 30 November 2020.<br><br>Judgment Link: <br><a href=\"https://karnatakajudiciary.kar.nic.in/noticeBoard/CRLP_6286_2020.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/noticeBoard/CRLP_6286_2020.pdf<br></a><br>Relevant paragraphs: </b><br><br></p><p style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">7. Skimmer is used for collecting the data stored in an ATM card and the camera, for capturing the password, when the account holder operates the teller machine using his card. The data then collected is used for forging the cards to be used for withdrawing the money from the accounts of the customers of the bank without their knowledge. Perpetration of crime in this manner fits into ingredients of Section 468 of IPC, for the genuine card holder operates the machine under the belief that his transaction is fully secured; but without his knowledge, the data in the card is captured by the skimmer; this modus operandi is nothing but dishonestly inducing the ATM card holder to operate a teller machine which is tampered.</span></p><p style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">9. Bail is not a licence for committing any number of crimes. Though bail is related to liberty of a person, misuse of liberty is not justifiable. And crimes which are not targeted against an individual, but perpetrated against society must be viewed quite differently. It is held by the Supreme Court in that cancellation of bail by the High Court under its inherent power does not deprive the personal liberty of an individual; and likely so, denial of bail to an accused who frequently commits bailable offences, does not violate Article 21 of the Constitution of India.</span></p><p style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">10. As a concomitant to this analysis, it may be stated that a person being on bail in relation to bailable offence and applies for bail having again committed a bailable offence cannot as a matter of right claim bail. Any attempt to liberally interpret the right in this manner without having idea of far-reaching consequences will have disastrous effect on the society or a system, as for instance how the case on hand may adversely affect the banking system. Therefore, the right to claim bail under section 436 of Cr.P.C becomes circumscribed when an accused repeatedly commits bailable offence/s.</span></p><i><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></i><p></p>', 'ae47a5473e2ecaedb8d4a1de0139eda6.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-30', 1, '', '', '2020-12-23 04:14:02', '2020-12-29 17:07:43'),
(290, '2ETO7PDfjxvoi4GaDmwuogEDg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'State Commission for Scheduled Castes and Scheduled Tribes has no dispute resolution powers. The Commission is neither a Tribunal nor a Judicial forum. Karnataka High Court.', '<p><b>M.B. Siddalingaswamy vs The State of Karnataka and others. Writ Petition 63405/2016 decided on 23 November 2020.</b><br><br><b>Judgment Link:&nbsp;<br></b><b style=\"font-size: 0.875rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354030/1/WP63405-16-23-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354030/1/WP63405-16-23-11-2020.pdf</a></b></p><p><b><br>Relevant paragraphs:</b><br><br></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">5. ….By the impugned order dated 11-11-2016 the Commission directed the State Government to accord retrospective seniority to the fifth respondent with effect from 17-09-2012 and also grant him all consequential monetary benefits and also effect correction of date of entry into service of Superintendent in the seniority list inter se between the petitioner and the fifth respondent.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">9. “whether the Commission was well within its jurisdiction to give a positive direction to the State Government upon adjudication of rights of the parties?”</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">10…it is germane to notice the genesis of the Commission. With the objective of replacing the Special Officer created under Article 338 when the Constitution was adopted, with a high level Five Member Commission for more effective management of constitutional safeguards for scheduled castes and scheduled tribes the Constitution (65th amendment) Act, 1990 was enacted.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Provisions of Article 338 of the Constitution of India and Karnataka Scheduled Castes and Scheduled Tribes Act, 2002 noticed.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">13..A reading of the afore-extracted Sections 8 and 10 of the said Act, makes it abundantly clear that the Commission is not empowered to adjudicate upon the rights of parties. The power vested with the Commission of Inquiry and submission of a report cannot be extended to adjudicate all disputes between individual and a State or a statutory authority. The powers conferred do not contemplate that the Commission can examine matters like a civil Court&nbsp; and adjudicate dispute and pronounce its decision either interim or final or issue a direction of the kind that is issued in the case on hand.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">14 &amp; 17: The Commission cannot be construed to be a Tribunal or a forum discharging the functions of a judicial character or Court. Article 338 of the Constitution itself does not entrust the Commission with the power to take up the role of a Court or an adjudicatory Tribunal and determine the rights of parties inter se.. …Commission is not empowered to adjudicate and decide disputes between the parties and pronounce its orders either interim or final.</span></div><i><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></i><p></p>', '83f6a1d0ed80b077dfd59b1be6da9788.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-23', 1, '', '', '2020-12-23 04:26:01', '2020-12-29 17:07:10'),
(291, 'zxsrWTZ7q8lqkvT0hQtFKXmQF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 125. Factors like unemployment or meagre income cannot be an excuse for a father who is under a personal obligation to maintain his minor child.', '<p><b>Cr.P.C. Section 125. Factors like unemployment or meagre income cannot be an excuse for a father who is under a personal obligation to maintain his minor child.<br>Sunil vs Nimish. Revision Petition Family Court No. 197/2014 decided on 17 November 2020.</b></p><p><b>Judgment Link:</b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354033/1/RPFC197-14-17-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354033/1/RPFC197-14-17-11-2020.pdf<br></a><br><b>Relevant paragraphs:</b><br><br></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Learned Judge found that petitioner’s mother has established that respondent has willfully neglected and refused to maintain his child.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">This is an interesting case to address the question whether a father can shirk his responsibility from maintaining his minor son under the garb of doing Coolie job.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">It’s no secret that being a parent is one of the most challenging roles in the world. The relationship between a parent and their child is a unique bond that nurtures the holistic growth and development of a child. It lays the foundation&nbsp; &nbsp; for&nbsp; &nbsp; their&nbsp; &nbsp; behavior,&nbsp; &nbsp; &nbsp;personality,&nbsp; &nbsp; &nbsp;traits&nbsp; &nbsp; and values.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Strengthening the parent-child relationships requires work, mutual understanding and efforts. Parenting is a tough job, but by maintaining a close&nbsp; relationship&nbsp; and open communication with your children, parents can stay connected to them during all stages of life.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">A Hindu is under a legal obligation to maintain his wife, his minor sons, his unmarried daughters and his aged parents, whether he possess any property or not. The obligation to maintain these relations is personal, legal and absolute in character and arises from the very existence of the relationship between the parties.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">It is needless to observe that a father is under a personal obligation to maintain his minor child. Hence, factors like unemployment, earning a meager income can’t be an excuse for not maintaining wife and children. He cannot shirk his responsibility from maintaining the family, in particular, his minor son under the garb of&nbsp; doing&nbsp; a coolie job.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">It is perhaps well to observe that the power to make an order under Section 125 of Cr.P.C is discretionary. This Court find it necessary to say only this much that High Court in exercising its revisional powers should not&nbsp; interfere with the discretion of a Judge acting within his jurisdiction unless the Court is clearly satisfied that he was wrong.</span></div><i><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></i><p></p>', 'd809d17ea5e5f38131d547c76fa6d77e.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-17', 1, '', '', '2020-12-23 19:23:31', '2020-12-29 17:06:25'),
(292, 'fCGxgtuwKvO0KTdUkxZZN6zl4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Maintenance. Son’s personal obligation to maintain his aged parents is not dependent on his possession of property but arises out of the mere relationship. Karnataka High Court.', '<p><b>K.Jayaprakash vs N. Kuppaswamy and another. Revision Petition Family Court No. 140/2016 decided on 17 November 2020.<br><br>Judgment Link:<br></b><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354034/1/RPFC140-16-17-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354034/1/RPFC140-16-17-11-2020.pdf<br></a><br><b>Relevant paragraphs: <br></b><br></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The real question to be answered is whether a son can contend that he is under no obligation to maintain his aged parents? This Court may venture to say that this is an interesting case to address the question as to what filial obligations are?</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">A continuing need for care for elderly, combined with loosely knit family structures prompt the question&nbsp; what filial obligations are. Do adult children of elderly&nbsp; have a duty to care?</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The phrase “filial obligations” is generally understood to refer to special duties—specific kinds of actions, services, and attitudes—that children must provide to their parents simply because they are those parents’ offsprings. Filial responsibility refers to the sense of obligation experienced by adult children to meet their older parents’ physical and emotional needs.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Contemporary societies, both west and east, retain a significant interest in how filial responsibility is maintained and experienced as an attitudinal basis for action to care&nbsp; for and support older adults. In increasingly&nbsp; aging societies, where we have seen increased life span in majority of adults what with new lifestyle management including yoga are in practice&nbsp; and&nbsp; consequential addition of years to their other wise shorter life span, the burden of filial responsibility on the children has increased considerably. Nevertheless, relative disability and filial responsibility and how they are associated with filial care giving and filial support to aging parents, are of major public interest and importance.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">A son is under a personal obligation to maintain his aged parents. It is a legal obligation not dependent on his possession of property but arising out of the mere relationship between the parties.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">In conclusion, this Court is of the view that the&nbsp; object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a moral claim to support.</span></div><i><b><br>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></i><p></p>', 'de148590afca246f07584694b3720f66.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-17', 1, '', '', '2020-12-23 19:25:17', '2020-12-29 17:05:53'),
(293, 'oyFGBc1dK32k9wa9nGUQU9GBr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Maintenance. A man must overcome all hurdles in order to maintain his family. Time to develop multi-tasking skills to earn during pandemic. Karnataka High Court', '<p><b>Mervin Felix Caleb vs Nisha and another. Revision Petition Family Court No. 205/2020 decided on 20 November 2020.</b><br><b><br>Link to Judgment: <br></b><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354032/1/RPFC205-16-20-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354032/1/RPFC205-16-20-11-2020.pdf</a></p><p style=\"text-align: justify; \"><b>Relevant portion: </b>In the last resort, learned counsel argued that at present, respondent is unemployed due to Covid-19 Pandemic. Therefore, counsel submitted that respondent is not in a position to pay maintenance to petitioner No.2 as ordered by the Family Court. I may venture to say that this is an interesting case to address the question whether a father can shirk his responsibility from maintaining his minor son under the guise of pandemic? It is true that the world is facing an unprecedented crisis. No doubt, COVID-19 has brought several parts of&nbsp; the globe almost to the brink of extinction&nbsp; of&nbsp; mankind what with scientists, doctors et al, toiling day and night for not only the treatment of patients but also in search of vaccine for the effective treatment of the pandemic. It is also true that the COVID-19 pandemic has left millions of people around the world jobless and are coping with trauma caused by the pandemic. Whether it’s temporary or permanent, unemployment can lead to&nbsp; stress, anxiety, depression and other mental health challenges. Uncertainty related to the COVID-19 pandemic only adds to the angst. But one must learn how to cope with the mental and emotional effects of unemployment during this pandemic. It is perhaps well to observe that insofar as a family&nbsp; is concerned, the head of the family [particularly, if it is a male member], has the onus of maintaining his family. He cannot shirk his responsibility from maintaining the family under the garb of pandemic. Every person has to develop multitasking skills so that if he loses one vocation, he should be able to switch over to the other. Alternatively, one option is that every person has to search for alternative mode of employment at least as a temporary measure [or till he is restored to his original vocation] and try to fill not only his stomach but also of those who are dependent on them, be it employees or family members.</p><p><i><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></i></p>', 'ab24abf1e8a01189080dc42f3ddf4a52.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-20', 1, '', '', '2020-12-23 19:29:14', '2020-12-29 17:04:07');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(294, 'pPkTuCll86tosFvtt1LTkzihs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Section 138. Even a blank cheque leaf voluntarily signed and handed over by the accused towards some payment would attract the Section unless contrary is proved. Supreme Court.', '<p><b><br></b></p><p><b>Bir Singh Vs Mukesh Kumar</b></p><p><b>Criminal Appeal 230-231 of 2019 decided on 6 February 2019.&nbsp;</b></p><p><b>Justice R. Banumathi and Justice Indira Banerjee.&nbsp;&nbsp;</b></p><div align=\"justify\"><span style=\"font-size: 1.3125rem;\"><b>These appeals are against the judgment and order dated 21-11-20171 passed by the High Court of Punjab and Haryana at Chandigarh allowing the criminal revisional application being Criminal Revision Petition No. 849 of 2016 filed by the respondent-accused, challenging a judgment and order dated 20-2-2016 passed by the Additional Sessions Judge, Palwal in Criminal Appeal No. 13 of 2015 filed by the respondent-accused, inter alia, affirming a judgment and order of conviction of the respondent-accused, passed by the Judicial Magistrate, First Class, Palwal under Section 138 of the Negotiable Instruments Act, 1881.</b></span></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span><div align=\"justify\"><b><span style=\"font-size: 1.3125rem;\">2. It is the case of the appellant complainant, that the respondent accused issued a cheque being Cheque No. 034212 dated 4-3-2012 drawn on Axis Bank, Branch, Palwal in the name of the appellant towards repayment of a “friendly loan” of Rs 15 lakhs advanced by the appellant complainant to the respondent-accused.</span><br><span style=\"font-size: 1.3125rem;\"></span></b></div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>3. On 11-4-2012, the appellant complainant deposited the said cheque in his bank, but the cheque was returned unpaid with the endorsement “Insufficient Fund”.The appellant complainant has alleged that, on the assurance of the respondent-accused, that there would be sufficient funds in his bank account to cover the amount of the cheque, the appellant complainant again presented the cheque to his bank on 23-5-2012, but it was again returned unpaid with the remark “Insufficient Fund”.</b></span></div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">4. On 15-6-2012, the appellant complainant issued a legal notice to the respondent-accused through his lawyer, calling upon the respondent accused to pay the cheque amount. The said notice, sent by registered post,&nbsp;</span><span style=\"font-size: 1.3125rem;\">was according to the appellant complainant, duly served on the respondent accused. The respondent-accused, however, did not reply to the notice. Nor did he pay the cheque amount to the appellant complainant. The appellant&nbsp;</span><span style=\"font-size: 1.3125rem;\">complainant filed a criminal complaint against the respondent-accused, being Case No. 106 of 2012 before the Judicial Magistrate First Class, Palwal, under Section 138 of the Negotiable Instruments Act.&nbsp;</span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; text-align: left;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">5. Sections 138 and 139 of the Negotiable Instruments Act are set out herein below for convenience: “138. Dishonour of cheque for insufficiency, etc., of funds in the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either&nbsp;</span><span style=\"font-size: 1.3125rem;\">because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:</span></b></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div><span style=\"font-size: 1.3125rem;\"><b>Provided that nothing contained in this section shall apply unless</b></span></div><div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;</b></span></div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and</b></span></div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 21px;\"><b><br></b></span></div></div><div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Explanation: For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability. 139. Presumption in favour of holder. It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 21px;\"><b><br></b></span></div></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>6. The object of Section 138 of the Negotiable Instruments Act is to infuse credibility to negotiable instruments including cheques and to encourage and promote the use of negotiable instruments including cheques in financial transactions. The penal provision of Section 138 of the Negotiable Instruments Act is intended to be a deterrent to callous issuance of negotiable instruments such as cheques without serious intention to honour the promise implicit in the issuance of the same.</b></span></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">7. Having regard to the object of Section 138 of the Negotiable Instruments Act, a prosecution based on a second or successive default in&nbsp;</span><span style=\"font-size: 1.3125rem;\">&nbsp;</span><span style=\"font-size: 1.3125rem;\">Payment of the cheque amount is not impermissible simply because no statutory notice had been issued after the first default and no proceeding for prosecution had been initiated. As held by this Court in MSR Leathers V. S.&nbsp;</span><span style=\"font-size: 1.3125rem;\">Palaniappan2, there is no real or qualitative difference between a case where default is committed and prosecution immediately launched and another where the prosecution is deferred till the cheque presented again gets&nbsp;</span><span style=\"font-size: 1.3125rem;\">dishonoured for the second time or successive times.</span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">8. By a judgment and order dated 9-2-2015, the Judicial Magistrate First Class, Palwal convicted the respondent-accused under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple&nbsp;</span><span style=\"font-size: 1.3125rem;\">imprisonment for a period of one year and further directed him to pay&nbsp;</span><span style=\"font-size: 1.3125rem;\">compensation of Rs 15 lakhs to the appellant complainant within one month&nbsp;</span><span style=\"font-size: 1.3125rem;\">from the date of the said judgment and order. Being aggrieved, the&nbsp;</span><span style=\"font-size: 1.3125rem;\">respondent-accused filed Criminal Appeal No. 13 of 2015 dated 9-3-2015 in&nbsp;</span><span style=\"font-size: 1.3125rem;\">the Court of the Additional Sessions Judge, Palwal.</span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">9. By a judgment and order dated 20-2-2016, the appellate court upheld&nbsp;</span><span style=\"font-size: 1.3125rem;\">the conviction of the respondent-accused under Section 138 of the&nbsp;</span><span style=\"font-size: 1.3125rem;\">Negotiable Instruments Act and confirmed the compensation of Rs.15 lakhs&nbsp;</span><span style=\"font-size: 1.3125rem;\">directed to be paid to the appellant complainant. The sentence of&nbsp;</span><span style=\"font-size: 1.3125rem;\">imprisonment was however reduced to six months from one year.</span></b></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">10. The respondent-accused filed a criminal revision petition being CRR&nbsp;</span><span style=\"font-size: 1.3125rem;\">No. 849 of 2016 in the High Court challenging the judgment and order of the&nbsp;</span><span style=\"font-size: 1.3125rem;\">appellate court. The appellant complainant also filed a criminal revision&nbsp;</span><span style=\"font-size: 1.3125rem;\">petition being CRR No. 2017 of 2016 challenging the reduction of the&nbsp;</span><span style=\"font-size: 1.3125rem;\">sentence from one year to six months.</span></b></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">11. By a common final judgment and order dated 21-11-20171 which is&nbsp;</span><span style=\"font-size: 1.3125rem;\">impugned before us, the High Court has reversed the concurrent factual&nbsp;</span><span style=\"font-size: 1.3125rem;\">findings of the trial court and the appellate court and acquitted the&nbsp;</span><span style=\"font-size: 1.3125rem;\">respondent of the charge under Section 138 of the Negotiable Instruments&nbsp;</span><span style=\"font-size: 1.3125rem;\">Act, observing, inter alia, that there was fiduciary relationship between&nbsp;the appellant complainant, an Income Tax practitioner, and the&nbsp;</span><span style=\"font-size: 21px;\">respondent accused</span><span style=\"font-size: 1.3125rem;\">&nbsp;who was his client.</span></b></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">12. The High Court observed1 and held: (Mukesh Kumar case1, SCC&nbsp;</span><span style=\"font-size: 1.3125rem;\">OnLine P&amp;H paras 10-14)&nbsp;“10. The complainant had fiduciary relationship with the&nbsp;</span><span style=\"font-size: 21px;\">petitioner accused</span><span style=\"font-size: 1.3125rem;\">. Therefore, heavy burden was on the complainant to prove that&nbsp;</span><span style=\"font-size: 1.3125rem;\">he had advanced the loan and that blank cheque for the same was given&nbsp;</span><span style=\"font-size: 1.3125rem;\">to him. The complainant is an income tax practitioner and he knows that&nbsp;</span><span style=\"font-size: 1.3125rem;\">whenever loan is advanced to anybody, receipt has to be obtained and&nbsp;</span><span style=\"font-size: 1.3125rem;\">that such heavy amount is to be advanced only through a cheque or&nbsp;</span><span style=\"font-size: 1.3125rem;\">demand draft or RTGS. The petitioner-accused was the client of the&nbsp;</span><span style=\"font-size: 1.3125rem;\">complainant and they were having professional relationship. The&nbsp;</span><span style=\"font-size: 1.3125rem;\">petitioner-accused was not so thick and thin with the complainant. There&nbsp;</span><span style=\"font-size: 1.3125rem;\">is no reason why the complainant, who is an income tax practitioner, will&nbsp;</span><span style=\"font-size: 1.3125rem;\">advance such a heavy loan to his client without any close relationship and&nbsp;</span><span style=\"font-size: 1.3125rem;\">without obtaining any writing to this effect. There was heavy burden on&nbsp;</span><span style=\"font-size: 1.3125rem;\">the complainant. In such circumstances, the petitioner-accused is&nbsp;</span><span style=\"font-size: 1.3125rem;\">successful in raising reasonable doubts that the complainant might have&nbsp;</span><span style=\"font-size: 1.3125rem;\">misused one of the blank cheques given to him for payment of income&nbsp;</span><span style=\"font-size: 1.3125rem;\">tax for depositing the same in the Treasury.</span></b></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">11. In order to support his case, the petitioner-accused took a risk by&nbsp;stepping himself into the witness box and offered himself for&nbsp;</span><span style=\"font-size: 21px;\">cross examination</span><span style=\"font-size: 1.3125rem;\">. He asserted in his cross-examination that the tax return&nbsp;</span><span style=\"font-size: 1.3125rem;\">was deposited in cash and the complainant used to take cash from him.&nbsp;</span><span style=\"font-size: 1.3125rem;\">His version was also supported by one Praveen Kumar, DW 2.</span></b></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">12. From the&nbsp;</span><span style=\"font-size: 21px;\">above noted</span><span style=\"font-size: 1.3125rem;\">&nbsp;discussions, it is clear that the parties were&nbsp;in fiduciary relationship and heavy burden was on the complainant to&nbsp;</span><span style=\"font-size: 1.3125rem;\">prove that he had advanced a loan of Rs 15,00,000 to his client without&nbsp;</span><span style=\"font-size: 1.3125rem;\">obtaining any writing and that he has not misused any blank cheque of&nbsp;</span><span style=\"font-size: 1.3125rem;\">his client. Such loan was not shown in the income tax return of the</span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>complainant.</b></span></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">13. For the reasons mentioned above, the case of the complainant&nbsp;</span><span style=\"font-size: 1.3125rem;\">becomes highly doubtful and is not beyond all reasonable doubts.&nbsp;</span><span style=\"font-size: 1.3125rem;\">Therefore, no presumption under Section 138 of the Negotiable&nbsp;</span><span style=\"font-size: 1.3125rem;\">Instruments Act, 1881 can be raised. Both the courts below erred in&nbsp;</span><span style=\"font-size: 1.3125rem;\">holding the petitioner-accused guilty for the commission of offence&nbsp;</span><span style=\"font-size: 1.3125rem;\">punishable under Section 138 of the Negotiable Instruments Act, 1881.</span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">14. In view of the foregoing discussions, CRR No. 849 of 2016 is&nbsp;</span><span style=\"font-size: 1.3125rem;\">allowed and CRR No. 2017 of 2016 is dismissed. The petitioner-accused&nbsp;</span><span style=\"font-size: 1.3125rem;\">stands acquitted of the notice of accusation served upon him.”</span></b></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">13. The short question before us is whether the High Court was right in&nbsp;</span><span style=\"font-size: 1.3125rem;\">reversing the concurrent factual findings of the trial court and of the&nbsp;</span><span style=\"font-size: 1.3125rem;\">appellate court in exercise of its revisional jurisdiction. The questions of law&nbsp;</span><span style=\"font-size: 1.3125rem;\">which rise in this appeal are,</span></b></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">(i) whether a Revisional Court can, in exercise&nbsp;</span><span style=\"font-size: 1.3125rem;\">of its discretionary jurisdiction, interfere with an order of conviction in the&nbsp;</span><span style=\"font-size: 1.3125rem;\">absence of any jurisdictional error or error of law and</span></b></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">(ii) whether the payee&nbsp;</span><span style=\"font-size: 1.3125rem;\">of a cheque is disentitled to the benefit of the presumption under Section&nbsp;</span><span style=\"font-size: 1.3125rem;\">139 of the Negotiable Instruments Act, of a cheque duly drawn, having been&nbsp;</span><span style=\"font-size: 1.3125rem;\">issued in discharge of a debt or other liability, only because he is in a&nbsp;</span><span style=\"font-size: 1.3125rem;\">fiduciary relationship with the person who has drawn the cheque.</span></b></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">14. The trial court, on analysis of the evidence adduced by the respective&nbsp;</span><span style=\"font-size: 1.3125rem;\">parties arrived at the factual finding that the respondent-accused had duly&nbsp;</span><span style=\"font-size: 1.3125rem;\">issued the cheque in question for Rs 15 lakhs in favour of the appellant&nbsp;</span><span style=\"font-size: 1.3125rem;\">complainant, in discharge of a debt or liability, the cheque was presented to&nbsp;</span><span style=\"font-size: 1.3125rem;\">the bank for payment within the period of its validity, but the cheque had&nbsp;</span><span style=\"font-size: 1.3125rem;\">been returned unpaid for want of sufficient funds in the account of the&nbsp;</span><span style=\"font-size: 1.3125rem;\">respondent-accused in the bank on which the cheque was drawn. Statutory&nbsp;</span><span style=\"font-size: 1.3125rem;\">notice of dishonour was duly issued to which there was no response from the&nbsp;</span><span style=\"font-size: 1.3125rem;\">respondent-accused.</span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">15. The appellate court affirmed the aforesaid factual findings. The trial&nbsp;</span><span style=\"font-size: 1.3125rem;\">court and the appellate court arrived at the specific concurrent factual&nbsp;finding that the cheque had admittedly been signed by the&nbsp;</span><span style=\"font-size: 21px;\">respondent accused</span><span style=\"font-size: 1.3125rem;\">. The trial court and the appellate court rejected the plea of the respondent-accused that the appellant complainant had misused a blank&nbsp;</span><span style=\"font-size: 1.3125rem;\">signed cheque made over by the respondent-accused to the appellant&nbsp;</span><span style=\"font-size: 1.3125rem;\">complainant for deposit of income tax, in view of the admission of the&nbsp;</span><span style=\"font-size: 1.3125rem;\">respondent-accused that taxes were paid in cash for which the appellant&nbsp;</span><span style=\"font-size: 1.3125rem;\">complainant used to take payment from the respondent in cash.</span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">16. It is well settled that in exercise of revisional jurisdiction under&nbsp;</span><span style=\"font-size: 1.3125rem;\">Section 482 of the Criminal Procedure Code, the High Court does not, in the&nbsp;</span><span style=\"font-size: 1.3125rem;\">absence of perversity, upset concurrent factual findings. It is not for the&nbsp;</span><span style=\"font-size: 1.3125rem;\">Revisional Court to re-analyse and re-interpret the evidence on record.</span></b></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">17. As held by this Court in Southern Sales &amp; Services v. Sauermilch&nbsp;</span><span style=\"font-size: 1.3125rem;\">Design and Handels GmbH3, it is a well-established principle of law that the&nbsp;</span><span style=\"font-size: 1.3125rem;\">Revisional Court will not interfere even if a wrong order is passed by a court&nbsp;</span><span style=\"font-size: 1.3125rem;\">having jurisdiction, in the absence of a jurisdictional error. The answer to the&nbsp;</span><span style=\"font-size: 1.3125rem;\">first question is therefore, in the negative.</span></b></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">18. In passing the impugned judgment and order dated 21-11-20171,&nbsp;</span><span style=\"font-size: 1.3125rem;\">the High Court misconstrued Section 139 of the Negotiable Instruments Act,&nbsp;</span><span style=\"font-size: 1.3125rem;\">which mandates that unless the contrary is proved, it is to be presumed that&nbsp;</span><span style=\"font-size: 1.3125rem;\">the holder of a cheque received the cheque of the nature referred to in&nbsp;</span><span style=\"font-size: 1.3125rem;\">Section 138, for the discharge, in whole or in part, of any debt or other&nbsp;</span><span style=\"font-size: 1.3125rem;\">liability. Needless to mention that the presumption contemplated under&nbsp;</span><span style=\"font-size: 1.3125rem;\">Section 139 of the Negotiable Instruments Act, is a rebuttable presumption.&nbsp;</span><span style=\"font-size: 1.3125rem;\">However, the onus of proving that the cheque was not in discharge of any&nbsp;</span><span style=\"font-size: 1.3125rem;\">debt or other liability is on the accused drawer of the cheque.</span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">19. In Hiten P. Dalal v. Bratindranath Banerjee4, this Court held that&nbsp;</span><span style=\"font-size: 1.3125rem;\">both Sections 138 and 139 require that the court shall presume the liability&nbsp;</span><span style=\"font-size: 1.3125rem;\">of the drawer of the cheques for the amounts for which the cheques are&nbsp;</span><span style=\"font-size: 1.3125rem;\">drawn. Following the judgment of this Court in State of Madras V. A.&nbsp;</span><span style=\"font-size: 1.3125rem;\">Vaidyanatha Iyer5, this Court held that it was obligatory on the court to&nbsp;</span><span style=\"font-size: 1.3125rem;\">raise this presumption.</span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">20. Section 139 introduces an exception to the general rule as to the&nbsp;</span><span style=\"font-size: 1.3125rem;\">burden of proof and shifts the onus on the accused. The presumption under&nbsp;</span><span style=\"font-size: 1.3125rem;\">Section 139 of the Negotiable Instruments Act is a presumption of law, as</span><span style=\"font-size: 0.875rem; text-align: left;\"><span style=\"font-size: 1.3125rem;\">&nbsp;</span></span><span style=\"font-size: 1.3125rem;\">distinguished from presumption of facts. Presumptions are rules of evidence&nbsp;</span><span style=\"font-size: 1.3125rem;\">and do not conflict with the presumption of innocence, which requires the&nbsp;</span><span style=\"font-size: 1.3125rem;\">prosecution to prove the case against the accused beyond reasonable doubt.&nbsp;</span><span style=\"font-size: 1.3125rem;\">The obligation on the prosecution may be discharged with the help of&nbsp;</span><span style=\"font-size: 1.3125rem;\">presumptions of law and presumptions of fact unless the accused adduces&nbsp;</span><span style=\"font-size: 1.3125rem;\">evidence showing the reasonable possibility of the non-existence of the&nbsp;</span><span style=\"font-size: 1.3125rem;\">presumed fact as held in Hiten P. Dalal4.</span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">21. Presumption of innocence is undoubtedly a human right as contended&nbsp;</span><span style=\"font-size: 1.3125rem;\">on behalf of the respondent-accused, relying on the judgments of this Court&nbsp;</span><span style=\"font-size: 1.3125rem;\">in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra6 and Rajesh&nbsp;</span><span style=\"font-size: 1.3125rem;\">Ranjan Yadav v. CBI7. However the guilt may be established by recourse to&nbsp;</span><span style=\"font-size: 1.3125rem;\">presumptions in law and presumptions in facts, as observed above.</span></b></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">22. In Laxmi Dyechem v. State of Gujarat8, this Court reiterated that in&nbsp;</span><span style=\"font-size: 1.3125rem;\">view of Section 139, it has to be presumed that a cheque was issued in&nbsp;</span><span style=\"font-size: 1.3125rem;\">discharge of a debt or other liability but the presumption could be rebutted&nbsp;</span><span style=\"font-size: 1.3125rem;\">by adducing evidence. The burden of proof was however on the person who&nbsp;</span><span style=\"font-size: 1.3125rem;\">wanted to rebut the presumption. This Court held “however, this&nbsp;</span><span style=\"font-size: 1.3125rem;\">presumption coupled with the object of Chapter XVII of the Act leads to the&nbsp;</span><span style=\"font-size: 1.3125rem;\">conclusion that by countermanding payment of a post-dated cheque, a party&nbsp;</span><span style=\"font-size: 1.3125rem;\">should not be allowed to get away from the penal provision of Section 138 of&nbsp;</span><span style=\"font-size: 1.3125rem;\">the Act”.</span></b></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">23. In Kumar Exports v. Sharma Carpets9, this Court reiterated that&nbsp;</span><span style=\"font-size: 1.3125rem;\">there is a presumption that every negotiable instrument duly executed, is for&nbsp;</span><span style=\"font-size: 1.3125rem;\">discharge of a debt or liability, but the presumption is rebuttable by proving&nbsp;</span><span style=\"font-size: 1.3125rem;\">the contrary. In the facts and circumstances of the case it was found that&nbsp;</span><span style=\"font-size: 1.3125rem;\">the cheque in question was towards advance for purchase of carpets, which&nbsp;</span><span style=\"font-size: 1.3125rem;\">were in fact not sold by the payee of the cheque to the drawer, as proved&nbsp;</span><span style=\"font-size: 1.3125rem;\">from the deposition of an official of the Sales Tax Department, who stated&nbsp;</span><span style=\"font-size: 1.3125rem;\">that the payee had admitted that he had not sold the carpets.</span></b></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">24. In K.N. Beena v. Muniyappan10, this Court held that in view of the&nbsp;</span><span style=\"font-size: 1.3125rem;\">provisions of Section 139 of the Negotiable Instruments Act read with&nbsp;</span><span style=\"font-size: 1.3125rem;\">Section 118 thereof, the Court had to presume that the cheque had been&nbsp;</span><span style=\"font-size: 1.3125rem;\">issued for discharging a debt or liability. The said presumption was&nbsp;</span><span style=\"font-size: 1.3125rem;\">rebuttable and could be rebutted by the accused by proving the contrary.&nbsp;</span><span style=\"font-size: 1.3125rem;\">But mere denial or rebuttal by the accused was not enough. The accused&nbsp;</span><span style=\"font-size: 1.3125rem;\">had to prove by cogent evidence that there was no debt or liability. This&nbsp;</span><span style=\"font-size: 1.3125rem;\">Court clearly held that the High Court had erroneously set aside the&nbsp;</span><span style=\"font-size: 1.3125rem;\">conviction, by proceeding on the basis that denials/averments in the reply of&nbsp;</span><span style=\"font-size: 1.3125rem;\">the accused were sufficient to shift the burden of proof on the complainant&nbsp;</span><span style=\"font-size: 1.3125rem;\">to prove that the cheque had been issued for discharge of a debt or a&nbsp;</span><span style=\"font-size: 1.3125rem; text-align: left;\">liability. This was an entirely erroneous approach. The accused had to prove&nbsp;</span><span style=\"font-size: 1.3125rem; text-align: left;\">in the trial by leading cogent evidence that there was no debt or liability.</span></b></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">25. In R. Vijayan v. Baby11 this Court observed that the object of&nbsp;</span><span style=\"font-size: 1.3125rem;\">Chapter XVII of the Negotiable Instruments Act is both punitive as also&nbsp;</span><span style=\"font-size: 1.3125rem;\">compensatory and restitutive. It provides a single forum and single&nbsp;</span><span style=\"font-size: 1.3125rem;\">proceeding for enforcement of criminal liability by reason of dishonour of&nbsp;</span><span style=\"font-size: 1.3125rem;\">cheque and for enforcement of the civil liability for realisation of the cheque&nbsp;</span><span style=\"font-size: 1.3125rem;\">amount, thereby obviating the need for the creditor to move two different&nbsp;</span><span style=\"font-size: 1.3125rem;\">for a relief. This Court expressed its anguish that some Magistrates went&nbsp;</span><span style=\"font-size: 1.3125rem;\">by the traditional view, that the criminal proceedings were for imposing&nbsp;</span><span style=\"font-size: 1.3125rem;\">punishment and did not exercise discretion to direct payment of&nbsp;</span><span style=\"font-size: 1.3125rem;\">compensation, causing considerable difficulty to the complainant, as&nbsp;</span><span style=\"font-size: 1.3125rem;\">invariably the limitation for filing civil cases would expire by the time the&nbsp;</span><span style=\"font-size: 1.3125rem;\">criminal case was decided.</span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">26. In R. Vijayan v. Baby11 this Court observed that unless there were&nbsp;</span><span style=\"font-size: 1.3125rem;\">special circumstances, in all cases of conviction, the Court should uniformly&nbsp;</span><span style=\"font-size: 1.3125rem;\">exercise the power to levy fine up to twice the cheque amount and keeping&nbsp;</span><span style=\"font-size: 1.3125rem;\">in view the cheque amount and the simple interest thereon at 9% p.a. as&nbsp;</span><span style=\"font-size: 1.3125rem;\">the reasonable quantum of loss, direct payment of such amount as&nbsp;</span><span style=\"font-size: 1.3125rem;\">compensation. This Court rightly observed that uniformity and consistency in&nbsp;</span><span style=\"font-size: 1.3125rem;\">deciding similar cases by different courts not only increases the credibility of&nbsp;</span><span style=\"font-size: 1.3125rem;\">the cheque as a negotiable instrument but also the credibility of the Courts</span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>of Justice.</b></span></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">27. The judgment of this Court in Raj Kumar Khurana v. State (NCT of&nbsp;</span><span style=\"font-size: 1.3125rem;\">Delhi)12 was rendered in the particular facts of the case where the drawer of&nbsp;</span><span style=\"font-size: 1.3125rem;\">the cheque had reported to the police and the bank that two unfilled&nbsp;</span><span style=\"font-size: 1.3125rem;\">cheques signed by him had been stolen.</span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">28. The proposition as re-enunciated in John K. John v. Tom Varghese13&nbsp;</span><span style=\"font-size: 1.3125rem;\">cited on behalf of the respondent-accused that if two views are possible, this&nbsp;</span><span style=\"font-size: 1.3125rem;\">Court, in exercise of its jurisdiction under Article 136 of the Constitution&nbsp;</span><span style=\"font-size: 1.3125rem;\">would ordinarily not interfere with a judgment of acquittal, is well settled. In&nbsp;</span><span style=\"font-size: 1.3125rem;\">the aforesaid case this Court affirmed an acquittal under Section 138 of the&nbsp;</span><span style=\"font-size: 1.3125rem;\">Negotiable Instruments Act, in the peculiar facts and circumstances of the&nbsp;</span><span style=\"font-size: 1.3125rem;\">case where several civil suits between the parties were pending.</span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">29. In Krishna Janardhan Bhat v. Dattatraya G. Hegde14, cited on behalf&nbsp;</span><span style=\"font-size: 1.3125rem;\">of the respondent-accused, this Court reaffirmed that Section 139 of the Act&nbsp;</span><span style=\"font-size: 1.3125rem;\">raises a presumption that a cheque duly drawn was towards a debt or&nbsp;</span><span style=\"font-size: 1.3125rem;\">liability. However, keeping in view the peculiar facts and circumstances of&nbsp;</span><span style=\"font-size: 1.3125rem;\">the case, this Court was of the opinion that the courts below had approached&nbsp;</span><span style=\"font-size: 1.3125rem;\">the case from a wholly different angle by wrong application of legal&nbsp;</span><span style=\"font-size: 1.3125rem;\">principles.&nbsp;</span></b></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">30. It is well settled that a judgment is a precedent for the issue of law&nbsp;</span><span style=\"font-size: 1.3125rem;\">which is raised and decided. It is the ratio decidendi of the case which&nbsp;</span><span style=\"font-size: 1.3125rem;\">operates as a binding precedent. As observed by this Court in State of&nbsp;</span><span style=\"font-size: 1.3125rem;\">Punjab v. Surinder Kumar, what is binding on all courts is what the&nbsp;</span><span style=\"font-size: 1.3125rem;\">Supreme Court says under Article 141 of the Constitution, which is&nbsp;</span><span style=\"font-size: 1.3125rem;\">declaration of the law and not what it does under Article 142 to do complete&nbsp;</span><span style=\"font-size: 1.3125rem;\">justice.</span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">31. Furthermore, to quote V. Sudhish Pai from his book Constitutional&nbsp;</span><span style=\"font-size: 1.3125rem;\">Supremacy — A Revisit:&nbsp;</span><span style=\"font-size: 1.3125rem;\">“Judgments and observations in judgments are not to be read as&nbsp;</span><span style=\"font-size: 1.3125rem;\">Euclid’s theorems or as provisions of statute. Judicial&nbsp;</span><span style=\"font-size: 1.3125rem;\">utterances/pronouncements are in the setting of the facts of a particular&nbsp;</span><span style=\"font-size: 1.3125rem;\">case. To interpret words and provisions of a statute it may become&nbsp;</span><span style=\"font-size: 1.3125rem;\">necessary for Judges to embark upon lengthy discussions, but such&nbsp;</span><span style=\"font-size: 1.3125rem;\">discussion is meant to explain not define. Judges interpret statutes, their&nbsp;</span><span style=\"font-size: 1.3125rem;\">words are not to be interpreted as statutes. Thus, precedents are not to</span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>be read as statutes.”</b></span></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">32. The proposition of law which emerges from the judgments referred to&nbsp;</span><span style=\"font-size: 1.3125rem;\">above is that the onus to rebut the presumption under Section 139 that the&nbsp;</span><span style=\"font-size: 1.3125rem;\">cheque has been issued in discharge of a debt or liability is on the accused&nbsp;</span><span style=\"font-size: 1.3125rem;\">and the fact that the cheque might be post-dated does not absolve the&nbsp;</span><span style=\"font-size: 1.3125rem;\">drawer of a cheque of the penal consequences of Section 138 of the&nbsp;</span><span style=\"font-size: 1.3125rem;\">Negotiable Instruments Act.</span></b></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">33. A meaningful reading of the provisions of the Negotiable Instruments&nbsp;</span><span style=\"font-size: 1.3125rem;\">Act including, in particular, Sections 20, 87 and 139, makes it amply clear&nbsp;</span><span style=\"font-size: 1.3125rem;\">that a person who signs a cheque and makes it over to the payee remains&nbsp;</span><span style=\"font-size: 1.3125rem;\">liable unless he adduces evidence to rebut the presumption that the cheque&nbsp;</span><span style=\"font-size: 1.3125rem;\">had been issued for payment of a debt or in discharge of a liability. It is&nbsp;</span><span style=\"font-size: 1.3125rem;\">immaterial that the cheque may have been filled in by any person other than&nbsp;</span><span style=\"font-size: 1.3125rem;\">the drawer, if the cheque is duly signed by the drawer. If the cheque is&nbsp;</span><span style=\"font-size: 1.3125rem;\">otherwise valid, the penal provisions of Section 138 would be attracted.</span></b></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">34. If a signed blank cheque is voluntarily presented to a payee, towards&nbsp;</span><span style=\"font-size: 1.3125rem;\">some payment, the payee may fill up the amount and other particulars. This&nbsp;</span><span style=\"font-size: 1.3125rem;\">in itself would not invalidate the cheque. The onus would still be on the&nbsp;</span><span style=\"font-size: 1.3125rem;\">accused to prove that the cheque was not in discharge of a debt or liability&nbsp;</span><span style=\"font-size: 1.3125rem;\">by adducing evidence.</span></b></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">35. It is not the case of the respondent-accused that he either signed the&nbsp;</span><span style=\"font-size: 1.3125rem;\">cheque or parted with it under any threat or coercion. Nor is it the case of&nbsp;</span><span style=\"font-size: 1.3125rem;\">the respondent-accused that the unfilled signed cheque had been stolen. The&nbsp;</span><span style=\"font-size: 1.3125rem;\">existence of a fiduciary relationship between the payee of a cheque and its&nbsp;</span><span style=\"font-size: 1.3125rem;\">drawer, would not disentitle the payee to the benefit of the presumption&nbsp;</span><span style=\"font-size: 1.3125rem;\">under Section 139 of the Negotiable Instruments Act, in the absence of&nbsp;&nbsp;</span><span style=\"font-size: 1.3125rem;\">evidence of exercise of undue influence or coercion. The second question is&nbsp;</span><span style=\"font-size: 1.3125rem;\">also answered in the negative.</span></b></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">36. Even a blank cheque leaf, voluntarily signed and handed over by the&nbsp;</span><span style=\"font-size: 1.3125rem;\">accused, which is towards some payment, would attract presumption under&nbsp;</span><span style=\"font-size: 1.3125rem;\">Section 139 of the Negotiable Instruments Act, in the absence of any cogent&nbsp;</span><span style=\"font-size: 1.3125rem;\">evidence to show that the cheque was not issued in discharge of a debt.&nbsp;</span></b></div><div><span style=\"font-size: 1.3125rem;\"><b><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">37. The fact that the appellant complainant might have been an Income&nbsp;</span><span style=\"font-size: 1.3125rem;\">Tax practitioner conversant with knowledge of law does not make any&nbsp;</span><span style=\"font-size: 1.3125rem;\">difference to the law relating to the dishonour of a cheque. The fact that the&nbsp;</span><span style=\"font-size: 1.3125rem;\">loan may not have been advanced by a cheque or demand draft or a receipt&nbsp;</span><span style=\"font-size: 1.3125rem;\">might not have been obtained would make no difference. In this context, it&nbsp;</span><span style=\"font-size: 1.3125rem;\">would, perhaps, not be out of context to note that the fact that the&nbsp;</span><span style=\"font-size: 1.3125rem;\">respondent-accused should have given or signed blank cheque to the&nbsp;</span><span style=\"font-size: 1.3125rem;\">appellant complainant, as claimed by the respondent-accused, shows that&nbsp;</span><span style=\"font-size: 1.3125rem;\">initially there was mutual trust and faith between them.</span></div></b></span></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">38. In the absence of any finding that the cheque in question was not&nbsp;</span><span style=\"font-size: 1.3125rem;\">signed by the respondent-accused or not voluntarily made over to the payee&nbsp;</span><span style=\"font-size: 1.3125rem;\">and in the absence of any evidence with regard to the circumstances in&nbsp;</span><span style=\"font-size: 1.3125rem;\">which a blank signed cheque had been given to the appellant complainant, it&nbsp;</span><span style=\"font-size: 1.3125rem;\">may reasonably be presumed that the cheque was filled in by the appellant&nbsp;</span><span style=\"font-size: 1.3125rem;\">complainant being the payee in the presence of the respondent-accused&nbsp;</span><span style=\"font-size: 1.3125rem;\">being the drawer, at his request and/or with his acquiescence. The&nbsp;</span><span style=\"font-size: 1.3125rem;\">subsequent filling in of an unfilled signed cheque is not an alteration. There&nbsp;</span><span style=\"font-size: 1.3125rem;\">was no change in the amount of the cheque, its date or the name of the&nbsp;</span><span style=\"font-size: 1.3125rem;\">payee. The High Court ought not to have acquitted the respondent-accused&nbsp;</span><span style=\"font-size: 1.3125rem;\">of the charge under Section 138 of the Negotiable Instruments Act.</span></b></div><div><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">39. In our considered opinion, the High Court patently erred in holding&nbsp;</span><span style=\"font-size: 1.3125rem;\">that the burden was on the appellant complainant to prove that he had&nbsp;</span><span style=\"font-size: 1.3125rem;\">advanced the loan and the blank signed cheque was given to him in&nbsp;</span><span style=\"font-size: 1.3125rem;\">repayment of the same. The finding of the High Court that the case of the&nbsp;</span><span style=\"font-size: 1.3125rem;\">appellant complainant became highly doubtful or not beyond reasonable&nbsp;</span><span style=\"font-size: 1.3125rem;\">doubt is patently erroneous for the reasons discussed above.</span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">40. The appeals are allowed. The judgment and order of the High Court&nbsp;</span><span style=\"font-size: 1.3125rem;\">is set aside. The conviction of the respondent under Section 138 of the&nbsp;</span><span style=\"font-size: 1.3125rem;\">Negotiable Instruments Act is confirmed. However, the respondent-accused&nbsp;</span><span style=\"font-size: 1.3125rem;\">is sentenced only to fine, which is enhanced to Rs 16 lakhs and shall be paid&nbsp;</span><span style=\"font-size: 1.3125rem;\">as compensation to the appellant complainant. The fine shall be deposited in&nbsp;</span><span style=\"font-size: 1.3125rem;\">the trial court within eight weeks from the date, failing which the sentence of&nbsp;</span><span style=\"font-size: 1.3125rem;\">imprisonment of one year as imposed by the trial court shall revive. There&nbsp;</span><span style=\"font-size: 1.3125rem;\">shall be no order as to costs.</span></b></div>', '11e0fbd1660980417cb2c193cb986001.png', '46ae6424edaf771b714fbe50a454c1ff.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-27', 1, '', '', '2020-12-23 23:24:21', '2023-01-27 13:57:58');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2606, 'yzWUCnIJnt0ZEBKtvt7YyaHmX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Property Tax imposition on Educational Institutions in Corporation, Municipality and Gram Panchayat areas. Legal position explained. ', '<p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><font face=\"Verdana, sans-serif\"><b>There is no uniformity in property tax imposition on educational institutions in the State of Karnataka. This writeup analyses the latest legal position.&nbsp;</b></font></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><br></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><font face=\"Verdana, sans-serif\"><b>1. Under the Karnataka Municipal Corporations Act (Section 110) the educational institutions are exempted from payment of property tax. Even under the Karnataka Municipalities Act there is exemption. But these exemptions are subject to payment of 25% of the property tax towards service charges.</b></font></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><font face=\"Verdana, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><b style=\"font-size: 1rem; font-family: Verdana, sans-serif;\">2. Referring to the Karnataka Panchayat Raj Act, Section 199 of the Act controls the levy of taxes, rate etc., by Gram Panchayats.&nbsp; Sub-section (1) states that the manner and subject to such exemptions, as may be prescribed, the Gram Panchayat could levy taxes not exceeding the maximum rate specified in Schedule IV, upon buildings and lands not subject to agricultural assessment within the limits of the Panchayat area.</b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><font face=\"Verdana, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><b style=\"font-size: 1rem; font-family: Verdana, sans-serif;\">3. The State Government, in exercise of the power conferred under Sections 199, 200 and 201 framed Taxation Rules’ which came into force in the year 1995.&nbsp; Rule 3 under Chapter II provided for procedure to levy tax on building and land.&nbsp; Rule 5 provides for rate of tax to be levied on the building at 10% of the annual letting value of such building, per annum; while Rule 6 provided for exemptions.&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><br></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><font face=\"Verdana, sans-serif\"><b>4. Rule 6 (c) provided exemption for buildings and lands used solely for charitable or public religious purposes and not let out for rent, under Sub-section (1) of Section 199. The educational institutions claimed exemption under this provision though there is no direct provision for exemption.</b></font></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><br></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><font face=\"Verdana, sans-serif\"><b>5. The Government Circular dated 19:11:2016 imposed property tax on all buildings exempting only the government buildings from the imposition of property tax.</b></font></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><br></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><font face=\"Verdana, sans-serif\"><b>6. The Karnataka High Court delivered a Judgement on 23 December 2021 in Writ Petition 16323 of 2021 holding that the Circular cannot take away the power of exemption vested in the Gram Panchayat.</b></font></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><br></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><font face=\"Verdana, sans-serif\"><b>7. However, the entire taxation policy is now changed with the framing of Karnataka Gram Swaraj and Panchayat Raj (Gram Panchayat Tax, Fee and Fee) Rules 2021 which came into existence on 31 March 2022.</b></font></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><br></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><font face=\"Verdana, sans-serif\"><b>Under the present Rules, exemption of property tax is granted to educational institutions only to the extent of 25%. This is applicable only if the educational institutions are self dependent for STP etc.</b></font></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><br></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><font face=\"Verdana, sans-serif\"><b>It may be noted that while Karnataka Municipal Corporation Act grants exemption subject to payment of 25% towards service charge, the new BBMP Act took away the exemption completely. Writ Petitions are filed challenging the BBMP Act as discriminatory and unconstitutional. The High Court has granted stay of demand notices by BBMP in Writ Petition 12954 of 2021 subject to payment of 25% of the demand notice.</b></font></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><font face=\"Verdana, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><font face=\"Verdana, sans-serif\"><b>There is no uniformity in property tax imposition on educational institutions in Karnataka.</b></font></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><br></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><font face=\"Verdana, sans-serif\"><b>Karnataka Municipalities Act grants exemption subject to payment of service charges of 25%</b></font><b style=\"font-size: 1rem; font-family: Verdana, sans-serif;\">&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><font face=\"Verdana, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><font face=\"Verdana, sans-serif\"><b>Karnataka Municipal Corporations Act grants exemption subject to payment of 25% towards service charge.</b></font></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><font face=\"Verdana, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><font face=\"Verdana, sans-serif\"><b>BBMP Act has taken away exemption completely.</b></font></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><br></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><font face=\"Verdana, sans-serif\"><b>The latest Rules i.e. Karnataka Gram Swaraj and Panchayat Raj (Gram Panchayat Tax, Fee and Fee) Rules 2021 exemption is only to the extent of 25% and tax of 75% is leviable.</b></font></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><font face=\"Verdana, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;text-align:justify;text-justify:\r\ninter-ideograph;line-height:normal\"><font face=\"Verdana, sans-serif\"><b>In my opinion the Karnataka Gram Swaraj and Panchayat Raj (Gram Panchayat Tax, Fee and Fee) Rules 2021 also suffer from discrimination and hence violative of Article 14 of the Constitution of India.&nbsp;</b></font></p>', '86918c6f478fa4fa88578c512a75ee75.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-27', 1, '', '', '2023-01-27 20:52:42', '2023-01-27 20:52:42'),
(240, 'aPPwOFmlKIBUcZbHYH8ukltQi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SC ST Insertion of new entry prospective. Adding synonymous is retrospective  ', '<p style=\"text-align: center;\"></p><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Constitution of India. Articles 341 &amp; 342. Scheduled Castes/Tribes. While insertion of a new entry is prospective, adding synonymous &amp; equivalent name to existing entry is retrospective.</b></div><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Parushuram vs The Deputy Commissioner and others. Writ Petition 65002/2011. Decided on 14 September 2020. Justice S.R.Krishna Kumar.&nbsp;</span></div></span><p></p><h4><div style=\"text-align: center;\"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/10/7.png?w=244\" alt=\"This image has an empty alt attribute; its file name is 7.png\"><span style=\"font-size: 1.3125rem;\"><br></span></div></h4><p><b>Judgment Link:</b><br> <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/341880/1/WP65002-11-14-09-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/341880/1/WP65002-11-14-09-2020.pdf</a></p><p><b>On Facts:&nbsp;</b>\'Medar\' is synonym of \'Meda\' and hence the entry Medar in 2012 is retrospective.<br><b><br>Relevant paragraphs:</b> <br><span style=\"font-size: 0.875rem; text-align: justify;\"><br>4. The following points arise for consideration in this petition:<br></span><span style=\"font-size: 0.875rem; text-align: justify;\">i. Whether a clarificatory, elucidatory, declaratory or explanatory amendment to an Act is prospective or retrospective?&nbsp;<br></span><span style=\"font-size: 0.875rem; text-align: justify;\">ii What is the scope, ambit and amplitude of Articles 341 and 342 of the Constitution of India?&nbsp;<br></span><span style=\"font-size: 0.875rem; text-align: justify;\">iii Whether a clarificatory, elucidatory, declaratory or explanatory amendment by a Law of the Parliament exercising powers under Articles 341(2) or 342(2) of the Constitution of India to the original constitution (Scheduled Tribes) Presidential Order of the year 1950&nbsp; is prospective or retrospective?&nbsp;<br></span><span style=\"font-size: 0.875rem; text-align: justify;\">iv. Whether&nbsp; The Constitution (Scheduled&nbsp; Tribes) Order (Amendment) Act, 2012&nbsp; (Annexure L) to the Constitution (Scheduled Tribes) Order, 1950 whereby in&nbsp; Entry No.37 of Part VI relating to State of Karnataka, the&nbsp; word ‘Medara’ is inserted after the words ‘Meda’ in the very same Entry No.37 is prospective or retrospective?&nbsp;</span></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">8. In&nbsp; &nbsp;Crawford’s Statutory Construction, at Page 107 paragraph 74 reads as follows: “74. Declaratory Statutes:- Generally speaking, declaratory statutes can be divided into two clauses: (1) those declaratory of the common law and (2) those&nbsp; declaring the meaning of an existing statute. Obviously, those declaratory of the common law should be construed according to the common law. Those of the second class are&nbsp; to&nbsp; be&nbsp; construed as intended to lay down a rule&nbsp; for future cases and to act retrospectively. They closely resemble interpretation clauses and their paramount purpose is to remove doubt as to the meaning of the existing law, or to correct a construction considered erroneous by the legislature.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">State Bank of India v. V. Ramakrishnan - ( 2018) 17 SCC 394 and State of Bihar v. Ramesh Prasad Verma -( 2017) 5 SCC 665, Union of India v. Martin Lottery Agencies Ltd - (2009) 12 SCC 209, T.N.&nbsp; Electricity&nbsp; Board v. Status Spg. Mills Ltd-(2008) 7 SCC 353, Zile Singh v. State of Haryana - (2004) 8 SCC 1 relied on.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br>11. In the light of the&nbsp; aforesaid&nbsp; well settled principles, I am of the considered opinion that a clarificatory, elucidatory, declaratory or explanatory amendment to an Act or a statutory provision will have retrospective effect and will operate retrospectively and such an amendment to an Act or a statutory provision would relate back to the date of the original enactment.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">15. State of Maharashtra vs Milind and others – (2001) 1 SCC 4 relied on. In view of the law laid down&nbsp; by&nbsp; the Apex Court in Milind’s case supra, I am of the considered opinion that once a Presidential Notification is issued under Articles 341(1) of 342(1) of the Constitution of India, it can be varied only by a Law of the Parliament and the&nbsp; said Notification can not be varied, modified, altered, amended or tinkered around by anything or anyone including a subsequent notification, either by the Central Government or State Government. As a corollary, in the absence of a law by the Parliament exercising powers under Articles 341(2) or 342(2), any central or state notification issued subsequent to a Presidential Notification being issued exercising powers&nbsp; under Articles 341(1) or 341(2) would clearly be illegal, invalid, non-est, inoperative and void-ab- initio.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Jayanna vs Deputy Commissioner – 2013( 1) Kar. L.J. 177(FB) and Zile Singh -Vs- State of Haryana AIR 2004 SC 5842 relied on.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">21.In view of the law laid down by the Hon’ble Full Bench in Jayanna’s case supra, I am of the considered opinion that any amendment to the Presidential Order of 1950 by a law of the Parliament exercising powers under Articles 341(2) or 342(2) whereby a particular name describing the scheduled caste/tribe which is synonymous and equivalent to the already existing entry is inserted/ included/added in the very same entry after the existing names in the said entry without creating or adding a new or separate entry or tribe and&nbsp; without&nbsp; increasing the total number of scheduled castes/tribes or&nbsp; the total number of entries, the said amendment is merely a clarificatory, elucidatory, declaratory or explanatory amendment which is retrospective in nature and operates retrospectively and relates back to the date of the&nbsp; original Presidential Notification of the year 1950.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">23. The aforesaid Amendment Act, 2012 clearly indicates that the name, ‘Medara’ was inserted and included after the name, ‘Meda’ in the very same pre-existing Entry No. 37 of the Presidential Order, 1950 without either creating or adding a totally new entry or a new scheduled tribe. To put it differently, under the said Amendment Act, 2012 the name ‘Medara’ was merely included, added and inserted in the very same pre-existing Entry No. 37 consisting of a synonymous and equivalent name, ‘ Meda’, without creating or adding a new or&nbsp; separate entry or tribe and without increasing the total number of scheduled castes/tribes or the total number of entries and consequently, the said Amendment Act, 2012 is merely a clarificatory, elucidatory, declaratory or explanatory amendment which is retrospective in nature and operates retrospectively and relates back to the date of the original Presidential Notification of the year 1950.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">26. It is brought to my notice that despite the decision of the Full Bench of this Court in Jayanna’s case supra, the State government is not implementing or giving effect to Amendment Acts by the Parliament exercising powers under Articles 341(2) and 342(2) of the Constitution of India in respect of other scheduled castes and tribes despite the said amendments being merely clarificatory, elucidatory, declaratory or explanatory amendments which are retrospective in nature and operate retrospectively and relate back to the date of the original Presidential Notification of the year 1950. Under these circumstances, I deem it fit and proper to issue suitable directions to the State government&nbsp; in this regard.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The Karnataka State Government is directed to implement and give effect to the decision of the Full Bench in the case of Jayanna vs Deputy Commissioner–2013(1) Kar.L.J 177(FB)&nbsp; forthwith immediately in respect of all persons belonging to scheduled castes/ scheduled tribes by issuing/ passing such appropriate notifications, orders or directions;</span></div><i><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.&nbsp;</b></i><p></p><p><br></p>', '0601f86bf76546d1f68721642eede222.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-09-15', 1, '', '', '2020-12-12 17:00:08', '2020-12-30 19:05:54'),
(241, 'fIr2eN7guYqw0XWp8UhNsN7dC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Converted land falling within Planning Area. Deputy Commissioner has no power under KLR Act', '<p style=\"text-align: center; margin-bottom: 0.0001pt;\"></p><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Karnataka\r\nLand Revenue Act. Land converted to industrial purpose and falling within\r\nPlanning Area under the Karnataka Town and Country Planning Act. Powers under\r\nunder KLR Act are ousted and the Deputy Commissioner has no power to deal with\r\nfurther change of land use.</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Kirloskar Electric Company\r\nLimited vs The State of Karnataka and another. Writ Petition 106705/2019.\r\nDecided on 30 July 2020.</span></div><p></p><h4 style=\"text-align: center; margin-bottom: 0.0001pt;\"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/10/11.png?w=263\" alt=\"This image has an empty alt attribute; its file name is 11.png\">&nbsp;&nbsp;<br> </h4><h4 style=\"text-align: center; margin-bottom: 0.0001pt;\"><br></h4><p style=\"margin-bottom:0cm;margin-bottom:.0001pt\"></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>Judgment Link:</b></span></div>\r\n<div style=\"text-align: justify; font-size: 1.3125rem; background-color: rgb(255, 255, 255);\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/341844/1/WP106705-19-08-09-2020.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\"></a><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/341844/1/WP106705-19-08-09-2020.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/341844/1/WP106705-19-08-09-2020.pdf</a><br></div><p></p><h4 style=\"margin-bottom: 0.0001pt;\"><span style=\"font-size: 1.3125rem;\"><br></span><p style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\"><b>Relevant Paragraphs: </b></span></p><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">16.Having\r\nregard to the submission made by the learned counsel for the petitioner and the\r\nlearned Additional Advocate General, the following questions arise for\r\nconsideration. i Whether the 2nd respondent- Deputy Commissioner is a competent\r\nauthority&nbsp; to&nbsp; initiate the proceedings to terminate the grant and to\r\nresume the land? ii. Whether provisions of Section 95 and 97 of the Karnataka\r\nLand Revenue Act are applicable?</span><br></div><p></p><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Decisions in ILR 1974 KAR\r\n1313; Abdul Basheer Sab v/s State&nbsp; of&nbsp; Mysore&nbsp; and others, ILR\r\n2002 KAR 4264; the Deputy Com KAR 1398; Special Deputy&nbsp;Commissioner&nbsp;V/s Narayanappa, ILR 2005 KAR 60;&nbsp;&nbsp;&nbsp; J.M.Narayana and others V/s\r\nCorporation of the City of Bangalore and others, (2006) 12 SCC 33; Siemens Ltd. V/s State of Maharashtra and\r\nothers.(2010) 13 SCC 427; Oryx Fisheries Private Limited V/s Union of India and\r\nothers, (2015) 3 SCC 695; Joint Collector and another V/s&nbsp; D.Narsing&nbsp;\r\nRao and others, (2018) 6 KLJ 792, Nekkanti Rama Lakshmi V/s State&nbsp;\r\nof&nbsp; Karnataka and others, (2018) 12 SCC 527; Chhedi Lal Yadav and others\r\nv/s Hari Kishore Yadav (D) through LRs and others , in (1995)1SCC295 in the case of State of\r\nKarnataka and others V/ s Shankar Textiles Mills Ltd , ILR&nbsp; 1974 SCC\r\nonline Kar 124 : ILR 1974 Kar&nbsp; 1313; Abdul Basheer Sab V/ s State of\r\nMysore and others, considered.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br>25. There is no dispute that the property in question is&nbsp; included in&nbsp; the\r\nRevised Comprehensive Development Plan/Master Plan 2021 and it is situated\r\nwithin the Hubballi Dharwad Municipal Corporation Area. Therefore section 4(4)\r\nof the Karnataka Municipal Corporations Act is applicable and the property tax\r\nis recovered from the Municipal Corporation.</span></div><p></p></h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt\"><p></p><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">26. Since the land is not\r\nan&nbsp; agricultural and is put to industrial use, it is not required to\r\n&nbsp;be converted from industrial purpose to&nbsp; non agricultural purpose.\r\nTherefore section 95(2) of the Karnataka Land Revenue Act is not&nbsp;\r\napplicable. When section 95(2) of the Act is not applicable, consequently\r\nsection 97 is also not applicable.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span><p style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">35. It is clear that section\r\n97&nbsp; of&nbsp; the&nbsp; Act&nbsp; can be invoked only if section&nbsp;\r\n95(2)&nbsp; is applicable. To apply section 95(2) of the Act, the property\r\nshould be an agricultural land assessed to the land revenue. In this case\r\nadmittedly the land was converted to industrial purpose.</span><span style=\"font-size: 1.3125rem;\"><br></span></p></div><p style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">40. In identical\r\ncircumstances, the Co- ordinate Bench of this Court while&nbsp; considering the\r\nprovisions of Sections 14 and 24(1) of the Karnataka Town and&nbsp;\r\nCountry&nbsp; Planning&nbsp; Act, 1961, in the case of Special Deputy\r\nCommissioner Vs. Narayanappa, reported in ILR 1988 KAR 1398 at paras 9,\r\n12&nbsp; and 13&nbsp; held as under: ...12. use of land falling within the area\r\nof&nbsp; ODPor CDP could be effected&nbsp; or&nbsp; undertaken only with the\r\nwritten permission of the Planning Authority. Further in view of the Section\r\nthe jurisdiction of the Deputy Commissioner under Section95&nbsp; of&nbsp; the\r\nLand Revenue Act gets ousted and such permission could be obtained or secured\r\nonly from the Planning Authority&nbsp; under the Act.</span></p></h4><h4 style=\"margin-bottom: 0.0001pt;\"><div style=\"text-align: justify;\"><div><p><span style=\"text-align: left;\">42. In the present case admittedly, the land in question is within the corporation limits. Under these circumstances in view of the overriding effect of Town and Country Planning Act, the provisions of Land Revenue Act and Land Revenue Rules ceases to operate. The Deputy Commissioner has no power&nbsp; under Section 95 of the&nbsp; Karnataka&nbsp; Land&nbsp; Revenue&nbsp; Act to grant or refuse permission. In view of Section 76(m), the change in land use of land within the corporation area or within the area ODP or CDP would be effected or undertaken only with the permission of the planning authority. Further in view of&nbsp; the section,&nbsp;&nbsp; the jurisdiction of the Deputy Commissioner under Section 95 of the Land Revenue Act gets ousted.</span></p></div><div><i style=\"font-size: 1.3125rem; text-align: left;\"><b>Compiled by S. Basavaraj,\r\nAdvocate, Daksha Legal.</b></i><br></div></div></h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt\"> <o:p>&nbsp;</o:p></h4><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n</p>', 'fe3c1982740944447bc2f865877802b6.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-07-30', 1, '', '', '2020-12-12 17:04:50', '2020-12-30 01:07:01'),
(242, 'lbmbNrvwKN8j3BijpRs3AfViX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Succession Act, 1956. Ancestral property partitioned and sold prior to 2005 amendment. Suit for partition by daughter is maintainable under the 1994 Karnataka amendment. Plaint cannot be rejected.', '<h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"></h4><p style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><b>H.P. Chikkarama Reddy and\r\nanother vs Kanthamma and others. </b></span></p><p style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><b>Civil Revision Petition 431/2014 decided on 14\r\nSeptember 2020. </b></span></p><p style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><b>Justice M.I. Arun.</b></span></p><p style=\"text-align: justify;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 0.875rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><b>10. Prakash\r\nand others vs Phulvati and others. reported in (2016) 2 SCC 36. Paragraphs 14,\r\n17, 18, 22 and 23 of the said judgment referred to. Para 23 of Phulvati \"Accordingly,\r\nwe hold that the rights under the amendment are applicable to living daughters\r\nof living coparceners as on 9.9.2005 irrespective of when such daughters are\r\nborn. Disposition or alienation including partitions which may have taken place\r\nbefore 20.12.2004 as per law applicable prior to the said date will remain\r\nunaffected. Any transaction of partition effected thereafter will be governed\r\nby the Explanation.”.</b></span></p><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"> 11. Judgment in Vineet Sharma\r\nvs Rakesh Sharma and others reported in 2020 SCC Online SC 641 referred to. Para\r\n129 of Vineet Sharma \"Resultantly, we answer the reference as under: (i)\r\nThe provisions contained in substituted Section 6 of the Hindu Succession Act,\r\n1956 confer status of coparcener on the daughter born before or after amendment\r\nin the same manner as son with same rights and liabilities. (ii) The rights can\r\nbe claimed by the daughter born earlier with effect from 9.9.2005 with savings\r\nas provided in Section 6(1) as to the disposition or alienation, partition or\r\ntestamentary disposition which had taken place before 20th day of December,\r\n2004. (iii) Since the right in coparcenary is by birth, it is not necessary\r\nthat father coparcener should be living as on 9.9.2005. (iv) The statutory\r\nfiction of partition created by proviso to Section 6 of the Hindu Succession\r\nAct, 1956 as originally enacted did not bring about the actual partition or\r\ndisruption of coparcenary. The fiction was only for the purpose of ascertaining\r\nshare of deceased coparcener when he was survived by a female heir, of Class-I\r\nas specified in the Schedule to the Act of 1956 or male relative of such\r\nfemale. The provisions of the substituted Section 6 are required to be given\r\nfull effect. Notwithstanding that a preliminary decree has been passed the\r\ndaughters are to be given share in coparcenary equal to that of a son in\r\npending proceedings for final decree or in an appeal. (v) In view of the rigor\r\nof provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral\r\npartition cannot be accepted as the statutory recognized mode of partition\r\neffected by a deed of partition duly registered under the provisions of the\r\nRegistration Act, 1908 or effected by a decree of a court. However, in\r\nexceptional cases where plea of oral partition is supported by public documents\r\nand partition is finally evinced in the same manner as if it had been affected\r\nby a decree of a court, it may be accepted. A plea of partition based on oral\r\nevidence alone cannot be accepted and to be rejected out rightly.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Placing reliance on the above\r\ntwo decisions of the Hon’ble Supreme Court, the petitioners state that as the\r\npartition deeds in question and the sale deed in favour of petitioner No.1 were\r\nexecuted prior to coming into force of the amended Section 6 of the Hindu\r\nSuccession Act, 1956, respondent No.1 has no right, title or interest over the\r\nproperties in question and consequently, the suit is barred by law and the\r\nplaint ought to have been rejected by the trial Court.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"> 13. The State Amendment of\r\nKarnataka had introduced Sections 6-A, 6-B and 6-C to Hindu Succession Act with\r\neffect from 30.07.1994. Section 6-A read as under:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">“6A. Equal rights to daughter\r\nin co-parcenary property. Notwithstanding anything contained in section 6 of\r\nthis Act-</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(a)in a joint Hindu family\r\ngoverned by Mitakshara law, the daughter of a co-parcener shall by birth become\r\na co-parcener in her own right in the same manner as the son and have the same\r\nrights in the co-parcenary property as she would have had if she had been a son\r\ninclusive of the right to claim by survivorship and shall be subject to the\r\nsame liabilities and disabilities in respect thereto as the son;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(b) at a partition in such a\r\njoint Hindu family the co-parcenary property shall be so divided as to allot to\r\na daughter the same share as is allotable to a son:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Provided that the share which\r\na predeceased son or a predeceased daughter would have got at the partition if\r\nhe or she had been alive at the time of the partition, shall be allotted to the\r\nsurviving child of such predeceased    son  \r\nor    of    such   predeceased\r\ndaughter:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Provided further that the\r\nshare allotable to the predeceased child of a predeceased son or of a\r\npredeceased daughter, if such  child had been alive at the time of the\r\npartition, shall be allotted to the child of such predeceased child of the\r\npredeceased son or  of such predeceased daughter, as the case may be;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(c) any property to which a\r\nfemale Hindu becomes entitled by virtue of the provisions of clause (a) shall\r\nbe held by her with the incidents of co-parcenary ownership and shall be\r\nregarded, notwithstanding anything contained in this Act or any other law for\r\nthe time being in force, as property capable of being disposed of by her by\r\nwill or other testamentary disposition;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(d) nothing in clause (b)\r\nshall apply to a daughter married prior to or to a partition which had been\r\neffected before the commencement of Hindu Succession (Karnataka Amendment) Act,\r\n1990.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The said amendment was in\r\noperation till the amendment to the Hindu Succession Act made by the\r\nParliament, which came into effect on 09.09.2005.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">14. Thus, for the purpose of\r\nState of Karnataka, the daughters had equal rights in coparcenary property even\r\nprior to the Parliament amending Section 6 which came into effect from\r\n09.09.2005. Nevertheless, daughters married prior to the amendment were\r\nexcluded from the coparcenary rights. The said restriction is removed by the\r\namendment passed by the Parliament.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"> 15. The decisions of the\r\nHon’ble Supreme Court referred to by the petitioners considered those\r\ntransactions in which the daughters had no right over the property prior to the\r\namendment made by the Parliament came into force. By virtue of the said\r\ndecisions, the daughters cannot prefer a suit for partition, in the event if\r\nthey had no right over the property prior to the amendment coming into force\r\nand the property was alienated prior to amendment coming into force. The above\r\ndecisions of the Hon’ble Supreme Court do not bar the daughters from\r\ninstituting a suit for partition, if as per prevailing law, prior to amendment\r\nshe had a right over the property. In the instant case, the partitions took\r\nplace by virtue of two partition deeds dated 06.02.2003. The sale took place on\r\n22.11.2004.....But, if she had a right over the properties due to Karnataka\r\nAmendment which introduced Section 6-A to Hindu Succession Act, which was in\r\nforce till it was eclipsed by the Central Amendment, in that event, she can\r\nmaintain a suit for partition.</span></div><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n</p>', '9d1e18a2fe873493a18ef4531a78ef73.jpeg', '0ae158c952849309f057b157d94eb459.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-24', 1, '', '', '2020-12-12 17:10:47', '2023-01-24 13:10:06'),
(2595, 'SCjleBmmnga5F5in7edNyDeqJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Forcible, unauthorised, Illegal encroachment of private property by BDA. Karnataka High Court orders allotment of equivalent developed land to the owner. Imposes cost of 5 lakhs to be recovered from the officers at default. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K Srinivas Murthy Vs The Bangalore Development Authority and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 38467 of 2016 decided on 9 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioner’s father was the owner of the property\r\nbearing Sy.No.35/4 of Halasuru village, Bangalore\r\nNorth Taluk measuring an extent of 11 guntas which\r\nwas acquired for the purpose of formation of HAL IV\r\nStage layout by the erstwhile City Improvement\r\nTrust Board (CITB) under preliminary notification\r\ndated 21.09.1967. Subsequent thereto, a final\r\nnotification was issued on 16.10.1972. It is\r\ncontended that by issuance of a notification under\r\nSection 48(1) of the Land Acquisition Act, 1894, the\r\nacquisition of the said property was withdrawn on\r\n9.10.1976. However, the BDA has forcefully formed\r\na layout in the said 11 guntas of land and as such,\r\nthe father of the petitioner had filed W.P. No.\r\n81100/1997 seeking cancelation of the sale made\r\nby the BDA as there is no acquisition of his property.\r\nThe writ petition came to be disposed of on\r\n19.08.1997 on the basis of the submission made by\r\nthe BDA that auction sites were actually part of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Sy.No.30 and not carved out of Sy.No.35/4\r\nbelonging to the father of the petitioner. In view\r\nthereof, the petitioner’s father was given liberty to\r\napproach the Civil Court.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Subsequent thereto the BDA admitting that 7 guntas\r\nof land had been utilised had agreed to allot property\r\nequivalent of 3½ guntas in compliance with the order\r\npassed by this Court and had thereafter allotted\r\ncertain sites in HSR Layout. The petitioner is before\r\nthis Court contending that it is only a partial\r\ncompliance of the order passed by this Court\r\ninasmuch as total extent of petitioner’s land was 11\r\nguntas whereas the BDA has admitted formation of\r\nsites only for 7 guntas leaving a balance of 4 guntas.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">8. The facts of the matter having been afore-stated, the\r\nCITB, predecessor of the BDA having formed HAL IV\r\nStage and admittedly used 7 guntas of land\r\nbelonging to the petitioner for formation of layout, it\r\nwould be a fraud played by the BDA on this Court\r\nand the petitioner by contending that 4 guntas of\r\nland has not been utilised by the BDA and that the\r\nonus of protecting the said 4 guntas of land is on the\r\npetitioner. The BDA having the audacity to contend\r\nthat 7 guntas of land have been utilised for the\r\nformation of road without acquisition, has the further\r\naudacity to contend that 4 guntas of land has to be\r\nprotected by the petitioner. Such a conduct on part\r\nof the BDA, more particularly the Addl. Land </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Acquisition Officer who has filed an affidavit to that\r\neffect, to say the least, is obnoxious.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. A perusal of the sanction plan, though\r\nSri.Unnikrishnan, learned counsel submits that actual\r\nlayout has not been made as per the sanctioned plan\r\nindicates that the location where the land of the\r\npetitioner is situate there are certain sites which\r\nhave been formed, there is no land around the\r\nproperty of the petitioner which has been shown as <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">vacant without a site being shown thereon. The\r\nentire land being covered by either road or a site\r\nwith a particular site number, it does not now lie for\r\nthe BDA to state that the said land has not been\r\nutilised and/or that the BDA has nothing to do with\r\nthe same since it has at no point of time exercised\r\ndomain or ownership to the extent of land or further\r\ncontend that the onus lies with the petitioner. When\r\nthe statutory authority like the BDA has forcefully,\r\nunauthorisedly, without sanction of law encroached\r\nupon and formed a road on a private property, it\r\ncannot be expected of a citizen like the petitioner to\r\nprotect the same and for the BDA to contend that\r\nonus of protecting the same would lie on the\r\npetitioner. As such, separate directions are being\r\nissued in relation thereto.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. In view of the fact that a layout has been formed on\r\nthe land of the petitioner either by using the same as\r\nroad or a site, there cannot be a contention raised by</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the BDA that proportionate developed land would not\r\nbe allotted to the petitioner. The petitioner would be\r\nentitled to the benefit of the Circular dated\r\n19.11.2009 in respect of 4 guntas of land also and\r\nnot being limited to 7 guntas of land. Needless to\r\nstate that the petitioner would be entitled to 2\r\nguntas of developed land in lieu thereof in any layout\r\nsubsequently formed to that of HAL IV stage. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. The writ petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1d0b81373e450382442ec87950b3b378.JPG', 'd76b2501615a7b3476c91fb5bc775818.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-25', 1, '', '', '2023-01-24 13:22:44', '2023-01-25 12:26:45');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(243, 'juN6tZ0Hibe82ckBmtIIOUhSr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Election Tribunal has no power to grant interim order staying election of the returned candidate.', '<p style=\"text-align: center; \"></p><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Election Petition. Tribunal has no power to grant interim order staying election of the returned candidate. Karnataka High Court</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Jayavani vs P. Geetha and others. Writ Petition 52861/2019 decided on 16 October 2020. Justice Krishna S Dixit.&nbsp;</span></div><p></p><p style=\"text-align: center;\"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/10/k-dixit.png?w=219\" alt=\"This image has an empty alt attribute; its file name is k-dixit.png\"><br></p><p><b>Judgment Link:</b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/344729/1/WP52861-19-16-10-2020.pdf\" target=\"_blank\" style=\"background-color: rgb(255, 255, 255); font-size: 0.875rem;\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/344729/1/WP52861-19-16-10-2020.pdf</a></p><p></p><p><b style=\"font-size: 1.3125rem;\">Relevant Paragraphs:<br></b><span style=\"text-align: justify; font-size: 1.3125rem;\"><br>5. By now, it is well established that democracy and republicanism are the basic features of&nbsp; the&nbsp; Constitution;&nbsp; about half a century ago, this Court in Sri. S Nagangound vs Y.Basy Reddy, 1969 ILR Mys. 734, whilst&nbsp; invalidating a Munsiff’s interim order made in an election petition restraining the returned candidate from functioning as a </span><span style=\"text-align: justify; font-size: 21px;\">member of</span><span style=\"text-align: justify; font-size: 1.3125rem;\">&nbsp;the village panchayat has observed as under: “Normally in election matters, the verdict of the electorate has to be respected and given effect to until it is set aside on any one of the grounds on which the law permits it to be set aside.” The reasons for this view are not far to seek; if a returned candidate in an election is restrained from functioning merely because his election is in challenge,&nbsp; it would not augur well&nbsp; &nbsp;for the people of the electoral constituency; they lose a representative whom they have elected, and to that extent, there would be none in the municipal body to voice their concern; this is not a happy thing to happen in local self governance; added to this, ordinarily, the trial of election petitions is a long drawn exercise and at times such exercise consumes the full electoral tenure in question, the legislative mandate to accomplish the same in a time bound manner, notwithstanding; that is the reason why the legislature in its wisdom and consciously has not empowered the Election Tribunal to grant interim relief such as staying of election result or such other order which may have that effect, during the pendency of election disputes; this aspect having not been adverted to by the learned Judge of the Court below, the impugned order is infected with a legal infirmity, apparent on its face.&nbsp;</span><br></p><p></p><p></p><p style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">6. Although, the election petitions are tried by the Civil Courts, they are only statutory tribunals which ordinarily, do not have inherent powers in the absence of statutory enablement; this Court in Malleshappa Vs. Pavanasiddappa, 1979 (2) KLJ 171, has observed that a Munsiff functioning under the then Karnataka Village Panchayats (Election of Chairman and Vice Chairman) Rules being a persona designata does not have inherent power; merely because Section 24 of the Act prescribes CPC procedure for trial of an election petition as is applicable to suits, it cannot be readily inferred that these tribunals too have inherent power like the Civil Courts; the conspicuous absence of power to grant interim relief in election disputes, is a matter of legislative policy; a contention to the contra, militates against the rudiments of Election Jurisprudence and therefore the impugned order is ex facie unsustainable.&nbsp;</span></p><br><p style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">7. The Apex Court in Jyothi Basu vs Debi Ghosal , AIR 1982 SC 983 at para 8, has observed as under:<br></span><span style=\"font-size: 0.875rem;\">“A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An Election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the Common Law nor the principles of Equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by&nbsp; different&nbsp; provisions&nbsp; of&nbsp; the&nbsp; Act. …”&nbsp;<br></span><span style=\"font-size: 0.875rem;\">The above observations equally apply to the municipal election disputes as well, since the Municipal&nbsp; Bodies&nbsp; now&nbsp; have been granted constitutional status vide Articles 243-Q &amp; 243-R introduced to the Constitution by the 74th Amendment, and that such bodies are grassroot units of democracy.&nbsp;<br></span><span style=\"font-size: 0.875rem;\">In the above circumstances, this Writ Petition succeeds;&nbsp; a Writ of Certiorari issues quashing the impugned order; the learned Judge of the Court below is requested to accomplish the trial &amp; disposal of the election case in E.P.No.1/2019,&nbsp; within an outer limit of four months, and report compliance to the Registrar General of this Court.</span></p><i><b><br>Compiled by S. Basavaraj, Advocate, Daksha Legal.&nbsp;</b></i><p></p><h4><br></h4>', '685fe1b75e218694d6bdd99db95727e4.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-16', 1, '', '', '2020-12-12 17:18:24', '2020-12-30 00:45:45'),
(244, 'hu24Zoy3iv2dSrB6uRDY6Ct2X', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'No confidence motion. Right to move not dependant on Rules.  ', '<h4></h4><p style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>No confidence motion. Right under the Act cannot fail due to non-framing of Rules. Enforcement of rights under plenary legislation cannot depend on subordinate legislation.<br></b></span><span style=\"font-size: 1.3125rem;\">Ratnamma Baramappa Nagara and others vs State of Karnataka and others. Writ Petition 146835-853/2020 decided on 27 August 2020. Justice Sachin Shankar Magadum.&nbsp;</span></p><h4 style=\"text-align: center;\"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/10/magdum.png?w=300\" alt=\"This image has an empty alt attribute; its file name is magdum.png\"><span style=\"font-size: 1.3125rem;\"><br></span></h4><h4><div style=\"text-align: center;\"><br></div><p><b>Judgment Link:</b><br> <p><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/339068/1/WP146835-20-27-08-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/339068/1/WP146835-20-27-08-2020.pdf<br></a><b><br>Relevant paragraphs: </b><br><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">25. The question that would arise before this Court is, once the members of Zilla Panchayath resolve to initiate no-confidence motion against the fourth respondent-President, whether the no- confidence motion can be kept in abeyance on the premise that Rules are yet to be framed. To answer this question it would&nbsp; be relevant to examine the proposition laid down by the Hon’ble Apex Court in Vipulbhai M. Chaudhary’s case (2005) 8 SCC 1. Wherein at Paragraph 16 while exhaustively dealing with no-confidence motion pertaining to the members of the Co-Operative Societies has held as follows:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“16. The principle of representative democracy is the election of representatives by the people otherwise eligible to cast their vote and the people thus elected, constituting the body for the management of an institution. Thus, in the case of co-operative societies, after the amendment in the Constitution, there has to be a Board of elected representatives, which may be called Board of Directors or Governing Body or a Managing Committee, etc. to which the members entrust the direction and control of the management of the affairs of the society. That representative body selects one among the elected representatives as its Chairman or any other office-bearer, as the case may be. Selection is the act of carefully choosing someone as the most suitable to be the leader or office-bearer. Thus, there is a lot of difference between election of delegates/representatives to constitute a body and selection of a person by the body from amongst the elected members to be the leader. It is to be borne in mind that the management and control of the society is entrusted to the representative body viz. the Board of Directors and that the Chairperson elected by the Board of Directions is the Chairperson of the society and not of the Board of Directors”.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">26. The Hon’ble Apex Court having observed as above was also of the view that the Democracy demands accountability and transparency in the activities of the Chairperson especially in view of the important functions entrusted with the Chairperson in the running of Panchayat Raj Institutions. The Apex Court was of the view that such duties can be discharged by the Chairperson only if he/she enjoys the continuous confidence of the majority members in the panchayath. The Apex Court was also of the view that any statutory provision to demonstrate that the Chairperson has lost the confidence of the majority is conducive to public interest and adds strength to such bodies of the self-governance. The Apex Court at Para 25 has further observed thus:&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“25. Silence in the Constitution and abeyance as well has been dealt extensively by Michael Foley in his celebrated work The Silence of Constitutions. To quote from the Preface: “ Abeyances refer to those constitutional gaps which remain vacuous for positive and constructive purposes. They are not, in any sense, truces between two or more defined positions, but rather a set of implicit agreements to collude in keeping fundamental questions of political authority in a state of irresolution. Abeyances are, in effect, compulsive hedges against the possibility of that which is unresolved being exploited and given meanings almost guaranteed to generate profound division and disillusionment. Abeyances are important, therefore, because of their capacity to deter the formation of conflicting positions in just those areas where the potential for conflict is most acute. So central are these abeyances, together with the social temperament required to sustain them, that when they become the subject of heightened interest and subsequent conflict, they are not merely accompanied by an intense constitutional crisis, they are themselves the essence of that crisis.”&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">In Part II, Chapter Four, the author has also dealt with the constitutional gaps and the arts of prerogative. To the extent relevant, it reads as follows (P.82):&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“ Gaps in a constitution should not be seen as simply empty space. They amount to&nbsp; a substantial plenum of strategic content and meaning vital to the preservation of a constitution. Such interstices&nbsp; accommodate the abeyances within which the sleeping giants of potentially acute political conflict are communally maintained in slumber. Despite the absence of any documentary or material form, these abeyances are real, and are an integral part of any constitution. What remains unwritten and indeterminate can be just as much responsible for the operational character and restraining quality of a constitution as its more tangible and codified components.”&nbsp;</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">27.The Apex Court has further held that the co-operative society registered under the Central or the State Act is bound to function as a democratic Institution and conduct its affairs based on democratic principles. The Apex Court was of&nbsp; the view that democratic functioning on democratic principles is to be reflected in the respective Acts or Rules or bye-laws both on the principle and procedure. If such Rules or procedures are not contemplated then it is for the Court to read the democratic principles and if there is no express provision under the Act or Rules, or Bye-laws for removal of an office bearer, such office-bearer is liable to be removed in the event of loss of confidence by following the same procedure by which he was elected to the office. In this background, the contention of the learned Senior counsel appearing for the fourth respondent that this Court cannot exercise jurisdiction under Article 226 of the Constitution of India needs to be out rightly rejected.&nbsp;</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">30. In the present writ petitions, the petitioners are seeking a writ of mandamus. The petitioners are duly elected members of Zilla Panchayath and having expressed no confidence motion, have submitted a requisition to Respondents 2 and 3 as well as to the fourth respondent. The petitioners have statutory right to seek ‘No-confidence motion. On examination of the averments and grounds raised in the writ petition and also having examined the judgments cited by the learned counsel appearing for the petitioners, it is clearly forthcoming that the petitioners have some legal right to seek ‘No- confidence motion’ against the respondent No.4. The Act clearly contemplates corresponding legal duty upon the respondents.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">31.In the present writ petitions, the petitioners are seeking a writ of mandamus. The petitioners are duly elected members of Zilla Panchayath and having expressed no confidence motion, have submitted a requisition to Respondents 2 and 3 as well as to the fourth respondent. The petitioners have statutory right to seek ‘No-confidence motion. On examination of the averments and grounds raised in the writ petition and also having examined the judgments cited by the learned counsel appearing for the petitioners, it is clearly forthcoming that the petitioners have some legal right to seek ‘No- confidence motion’ against the respondent No.4. The Act clearly contemplates corresponding legal duty upon the There are no two opinions about the aphoristic judicial observation that Article 226 of the Constitution confers extraordinary jurisdiction on this Court and that is wide as well as expansive, no fetter can be placed on the exercise of the said extraordinary jurisdiction. The adjudicatory ambit of an issue, indeed, is kept to the discretion of Constitutional Courts. The primary purpose of a writ of mandamus is to protect and establish rights and to impose a corresponding imperative duty on State and its officials.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">33...I do not find any legislative intent indicating that the authority exercising power under the amended provisions has to wait until and unless, rules are framed in that regard. The word “may” would in no way preclude the authority from exercising its power under the Statute.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">34.... I am of the view that in absence of any such express provision, framing of rules cannot be a condition precedent for exercise of power under the Statute. The Principle Act clearly contemplates a procedure and there would be no impediment for the authority to follow the existing procedure.&nbsp;</span></div><i><br><b>Compiled by S.Basavaraj, Advocate, Daksha Legal.&nbsp;</b></i></p></p></h4><p><br></p>', '4d8fda5f747ebc52db12c15d4d128f2b.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-08-27', 1, '', '', '2020-12-12 17:27:51', '2020-12-30 00:50:02'),
(245, 'mmaMMbV9F2HyIPUyhQsBc5p4Z', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Gang rape. Capital punishment must be imposed  ', '<p style=\"text-align: justify;\"><b>Criminal Law reforms. \"Rape is not only a crime against women; it\'s a crime against the entire civilized society. Physical scar will heal up but mental scar will remain forever\".&nbsp; Gang rapists to be imposed capital punishment.</b><br><span style=\"font-size: 1.3125rem;\">Ramu and others vs State and others. Criminal Appeal 246/2014 &amp; connected appeals, decided on 21 October 2020. Justice B. Veerappa and Justice K. Natarajan.&nbsp;</span></p><h4><div style=\"text-align: center;\"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/10/veerappa-natarajan.png?w=541\" alt=\"This image has an empty alt attribute; its file name is veerappa-natarajan.png\"><span style=\"font-size: 1.3125rem;\"><br></span></div><p></p><p style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Judgment Link:<br></span><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/344930/1/CRLA246-14-21-10-2020.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/344930/1/CRLA246-14-21-10-2020.pdf</a></p> <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/344930/1/CRLA246-14-21-10-2020.pdf\" target=\"_blank\"><br></a><p></p><div style=\"text-align: justify;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/344930/1/CRLA246-14-21-10-2020.pdf\" target=\"_blank\"><span style=\"font-size: 1.3125rem; color: rgb(0, 0, 0);\">In one of the landmark judgments on Criminal law reforms, the Karnataka High Court expressed anguish over the beastly behaviour of the accused in committing gang rape on a student from Nepal. The High Court has called upon to the Parliament to take note of the extremely disgusting scenario where womanhood are treated as objects of lust and further made strongest recommendation to amend the Indian Penal Code to impose capital punishment on gang rapists.&nbsp;</span></a></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The Hon\'ble Court in its meticulously considered judgment has quoted excerpts from Vedas and other ancient scripts to note with utmost pain as to how women who were worshiped at one point of time are treated with utter impunity.&nbsp;</span></div><div style=\"text-align: justify;\"><br></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant Paragraphs:&nbsp;</b></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">‘The rape is not only a crime against woman.. but it is a crime against the entire civilized society’.&nbsp; Physical scar will heal up but mental scar will remain for ever.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">25. The imposition of appropriate punishment is the manner in which the ‘Court&nbsp; responds to the society\'s cry for justice against the criminal’. Justice demands that the Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence. The Court must not only keep in view the rights of the criminal, but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">27. Under the Constitution of India, ‘Right to live with dignity’ is a fundamental right guaranteed and it is the fundamental duty of the State to protect it.&nbsp; Sexual violence by the accused apart from being a dehumanizing act, is an unlawful intrusion on the&nbsp; right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her self-esteem&nbsp; and dignity as well. It degrades and humiliates&nbsp; the&nbsp; victim and&nbsp; where&nbsp; the&nbsp; victim&nbsp; is&nbsp; a&nbsp; helpless&nbsp; innocent woman, child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position i.e., her dignity, honour, reputation and chastity. ‘Rape is not only an offence against P.W.28 victim girl, but a crime against the entire society’. It is a crime against basic human rights and also violates the most cherished fundamental right guaranteed under Article 21 of the Constitution of India. 28. Alarming increase in crimes depicts that the criminals are not afraid of the present criminal justice system. We feel that more stringent punishment has to be introduced by further amending the provisions of Section 376D stated supra imposing death penalty or life as stated supra and due publicity has to be given to the amended provisions in discharging and deterring others from committing such crimes. The media, which is rightly called the Fourth Estate of Democracy, can play a pivotal role in bringing about the awareness of the amended provisions of law and in sensitizing the general public on the traumatic impact of the invasion of a women’s body. <br><br>29. Manu-Smriti, which is basically a compilation of Vedic Laws, unequivocally states the reverence with which women were to be treated: \"Where women are worshipped, the Gods rejoice; Where they are not respected, all tasks become fruitless”. The Gods are kind to the homes where women are treated with honour. Where women are not honoured, there all actions (rituals) go in vain. Families where women are unhappy are doomed to be destroyed soon. Homes where women are not unhappy are destined always for greater prosperity.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">30. In Vedas, all women have to be treated as mothers or elder sisters by male students and the admonition is: “The King\'s wife, the Guru\'s wife, the elder brothers\' wife, the mother-in-law and one\'s own mother are considered as mothers”.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">One is ordained to prostrate oneself before them every morning or whenever one meets them for the first time in the day. This is evident from the reference in the ‘Ramayana’.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">32. Now the woman is typically stereotyped as sexual object of pleasure and not as a respectful motherly force. Hence, despite all material progress, western world is still inflicted with insecurity and lack of inner peace.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">34. As is being rightly held by the Courts, including the Apex Court, a girl or a woman, in the tradition-bound non-permissive society of India, would be extremely reluctant even to admit&nbsp; that&nbsp; any&nbsp; incident ,which is likely to reflect on her chastity, had ever occurred. She would be conscious of the danger of being ostracized by the society or being looked down by the society, including her own family members, relatives, friends, and neighbours. She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home. If she is unmarried, she would apprehend that it would be difficult to secure a befitting life partners and a respectable matrimonial home. In view of these and similar factors, the victims and their relatives are not too keen to bring the culprit to the book.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">46. Lord Denning while&nbsp; appearing before the Royal&nbsp; Commission on ‘Capital Punishment’ expressed the view as under:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“Punishment is the way in which society express its denunciation of wrongdoing and in order to maintain respect for law, it is essential that punishment inflicted for grave crimes should reflect revulsion felt by the great majority of the citizens. For them it is a mistake to consider the object of punishment as being deterrent or reformative or preventive and nothing else. The truth is that some crimes are so outrageous that society insists on adequate punishment because the wrong doer deserves it, irrespective of whether it is deterrent or not”.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">51. It is the nature and gravity of the crime and not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual but also against the society to which the criminal and the victim belong.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">52. In view of the pronouncements and declarations made by the Hon’ble Supreme Court, it is true that reformation as a theory of punishment had become the trend but that theory is applicable to such crimes, in which the damage is repairable or even if the damage cannot be repaired, salvation by other mode is possible. That theory is inapplicable in offences where damage is immense, irreparable and cannot be retractable and as such, severe punishment is the only mode.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">58. In Vedic Society, great value was attached to the chastity of women. Therefore, any attempt to rob her off of chastity was considered to&nbsp; &nbsp; be a sin.The Punishment as per Manu for such crime included throwing the perpetrator out of the society.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">• Interestingly, the scriptures provide an insight into not&nbsp; only how the&nbsp; perpetrator of offence of rape was dealt with but also how the victim was dealt with by the Society. It is surprising to note that when victims of rape in modern India are admonished by the Society, the Vedic Society was much more supportive of survivors of rape.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">60. It is unfortunate, a horrific act that all the accused persons have committed heinous and inhumane crime of gang rape on the victim – P.W.28 for satisfaction of their lust and ruined her life for which she has to suffer throughout her life. “Rape is not only&nbsp; a crime against woman-P.W.28 victim girl, but it is a crime against the entire civilized society”.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">61. Punishment must also respond to the cry of the society for justice against the criminals. While considering the punishment to be given to an accused, the Court should be alive not only to the rights of the criminal for awarding just and fair punishment by administering justice tempered with such mercy, as the criminal may justly deserve, but also to the rights of the victim of the crime to have assailant appropriately punished and the society’s reasonable expectations from the Court for the appropriate deterrent punishment conforming to the gravity of the offence and consistent with the public abhorrence for the heinous crime committed by the accused.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">67.&nbsp;‘Gang rape’ is more dangerous than ‘Murder’. The demand for justice has to be made fully within legal framework. In view of the provisions of Section 10 of&nbsp; Indian&nbsp; Penal&nbsp; Code&nbsp; the word&nbsp; “Man” denotes a male human being of any age; and the word “Woman” denotes a female human being of any&nbsp; age. The provisions of Section 376DB of Indian Penal Code prescribes punishment for gang rape on&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">woman under twelve years of age, which shall be imprisonment for life, which shall mean imprisonment for the remainder&nbsp; of&nbsp; that person’s</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">natural life and with fine or with death. Since the unfortunate&nbsp; incident&nbsp; has occurred on 13.10.2012 and the provisions of Section 376(2)(g) of Indian Penal Code provides rigorous imprisonment for a term which shall not be less than 10 years, but which may extend to life and shall also be liable to fine. The provisions of Section 376D of Indian Penal Code has been amended by the Criminal Law (Amendment) Act 2013&nbsp; (13 of 2013) which has come into force with effect from 3.2.2013 imposing punishment of rigorous imprisonment for a term which shall&nbsp; not be less than 20 years, but which may extend to life, which shall mean imprisonment for remainder of that person’s natural life and with</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">fine. In view of the provisions of Section 10 and Section 376DB of Indian Penal Code stated supra, in our considered opinion, now it is appropriate for&nbsp;the Legislature/Central Government in order to&nbsp; curb</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">the menace of ‘gang rape’ against woman, the provisions of Section 376D of Indian Penal Code requires&nbsp; further&nbsp; amendment&nbsp; imposing&nbsp; &nbsp;punishment for death in addition to the existing provision of imprisonment for life and shall also liable to fine on par with the provisions of Sections 376AB and 376DB of Indian Penal Code keeping in view the definition of ‘Woman’ under Section 10 of Indian Penal Code.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">69.&nbsp;•</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">Though Indian Penal Code was enacted by Act 45 of 1860, and even after lapse of 74 years of independence, still woman is&nbsp; not&nbsp; safe in the hands of rapists/violators of law. Last but not the least, we want to send a strong message to the Society by reminding ourselves, the famous Quote of the Father of the Nation, Mahatma Gandhi, immediately after independence that,“The day a woman can walk freely on the roads at night, that day we can say that India has achieved</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">independence.” Therefore, we express our anguish towards safety of the vulnerable woman folk in the society that when an educated woman studying Law Course was unable to go out of the hostel with her friend at 9.30 p.m. as the accused ravished her by abducting and committing gang rape on her and we cannot say that we have achieved the Mahatma Gandhi’s dream of Indian Independence stated supra, otherwise, we are not proud to say that India achieved empowerment of woman even after seven decades of Independency of our Country.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">70. We, the Judges are the societal parents. If our concern for the society of girls/ women can be summed up in one sentence&nbsp; that&nbsp; “An&nbsp; attack on anybody’s daughter is an attack on our daughter.” While confirming the judgment We hereby recommend the Legislature/Central Government to further amend the provisions&nbsp; of Section 376D of Indian Penal Code – Gang rape into capital punishment in addition to the existing provision for imprisonment of life and with fine on par with the provisions of Section 376AB and 376DB of Indian Penal Code keeping in view of definition of ‘Woman’ under Section 10 of Indian Penal Code in order to curb&nbsp; the menace of ‘gang rape’ in the society at large.</span></div><i><b><br><h4 style=\"text-align: justify;\"><i style=\"font-size: 1.3125rem;\"><b>Compiled by S.Basavaraj, Advocate, Daksha Legal.&nbsp;</b></i></h4></b></i><p></p></h4><p><br></p>', 'e50a00309c1ae2491c4995e24f95f936.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-21', 1, '', '', '2020-12-12 17:35:03', '2020-12-30 00:36:57'),
(246, 'HD3WrFlT2lYLPVBcGA8mxMp0J', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Lokayuktha has no jurisdiction over a Society unless it is controlled by State Government ', '<h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"></h4><p style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Karnataka Lokayukta Act, 1984. Public Servant being office bearer of a\r\nSociety registered under the Karnataka Societies Registration Act, 1960.\r\nLokayukta has no jurisdiction to investigate against such person qua Society,\r\nunless the Society is controlled by the State Government</b></span></p><div style=\"text-align: center;\"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/10/arvind-hemant.png?w=300\" alt=\"This image has an empty alt attribute; its file name is arvind-hemant.png\" style=\"font-size: 1.3125rem;\"></div><p style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">V.M. Narayana Swamy and\r\nanother vs The State of Karnataka and another. Writ Petition 43810/2018 decided\r\non 26 March 2020.</span></p><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><div style=\"text-align: center;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; text-align: left;\">Judgment Link:</span></div></div></h4><p style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/331592/1/WP43810-18-26-03-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/331592/1/WP43810-18-26-03-2020.pdf</a></p><p style=\"margin-bottom: 0.0001pt; line-height: normal;\"><br></p><p style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><b>\r\nRelevant Paragraphs:</b><br><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">&nbsp;8. ...following\r\npoint would arise for our consideration: \"Whether the Lokayukta/Upa\r\nLokayukta under the Act has jurisdiction to investigate and hold an enquiry in\r\nrespect of allegation made in the complaint against a person who is in the\r\nservice or pay of a society registered under Karnataka Societies Registration\r\nAct, 1960 for mis- management, mis-appropriation failing to discharge his duty,\r\nmal- administration and the like?”</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">&nbsp;9. The jurisdiction of\r\nLokayukta and Upalokayukta to investigate is circumscribed by the powers\r\nconferred under Section 7 of the Act. The jurisdiction so vested cannot extend\r\nbeyond what is specifically provided thereunder. In other words, they have been\r\nconferred power to investigate a grievance or an allegation against a public\r\nservant as defined under the Act. They have not been conferred any power to\r\ninvestigate a grievance or an allegation against a private individual.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">&nbsp;10. ....Where the Lokayukta or\r\nUpa Lokayukta proposes after making preliminary enquiry, as deemed fit, to\r\nconduct any investigation under the Act, is required to forward such copy of\r\nthe complaint to the “public servant” against whom complaint is made to the and\r\nthe competent authority concerned. In other words, the public servant is\r\nafforded an opportunity to offer his comments to such complaint. Thus, a\r\nharmonious reading of Section 7 and Section 9 would indicate that investigation\r\ncan be taken up against a “public servant” only. The expression “public servant”\r\nis defined under Section 2(12) of the Act, which reads: (Section extracted).\r\n“The expression “Government servant” as indicated in Section 2(12)(d) is\r\ndefined in Section 2(6) and it reads: (Section extracted).</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">&nbsp;11. A plain reading of Section\r\n9 of the Act would clearly&nbsp;&nbsp; &nbsp;indicate&nbsp;&nbsp;\r\n&nbsp;that&nbsp;&nbsp; &nbsp;investigation&nbsp;&nbsp;\r\n&nbsp;against&nbsp;&nbsp; &nbsp;a&nbsp;&nbsp; &nbsp;‘Public Servant’&nbsp;\r\n&nbsp;under&nbsp; &nbsp;the&nbsp; &nbsp;Act&nbsp; &nbsp;can&nbsp;\r\n&nbsp;be&nbsp; &nbsp;undertaken&nbsp; &nbsp;by&nbsp; &nbsp;the Lokayukta or\r\nUpa-Lokayukta after making such preliminary inquiry as deemed fit and such\r\nallegation is made against a public servant for having abused his position as ‘public\r\nservant’ to obtain any gain or favour to himself or to any other person or to\r\ncause undue hardship or harm to any other persons; was actuated in discharge of\r\nhis function as a ‘public servant’ by personal interest or improper and correct\r\nmotives; fails to act in accordance with the norms of integrity and conduct\r\nwhich ought to be followed by public servant; or his guilty of corruption,\r\nfavoritism or nepotism or lack of integrity in his capacity. Thus, condition\r\nprecedent for investigating under Section 7 or being proceeded under Section 9\r\nto enquire into would be that such person against whom the proceedings under\r\nthe Act is initiated should be a “Government servant”.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">&nbsp;12. A person in the service of\r\npay of such of the authorities as defined under Section 2(12) would also be\r\namenable for being investigated by Lokayukta or Upa- Lokayukta. In the event of\r\nsuch person falling outside scope of section 2(12), it cannot be gainsaid by\r\nthe Lokayukta or Upa-Lokayukta that such persons would&nbsp; still be amenable\r\nto their jurisdiction, inasmuch as, it is only a “public servant” as defined\r\nunder Section 2(12), who would be amenable for being investigated under\r\nSections 7 and proceeded with under Section 9 of the Act. In the event of a\r\nperson against whom the allegation is made, does not fall within the definition\r\nof Section 2(12), then necessarily such person cannot be roped in for investigation\r\nor proceeded under The Lokayukta Act.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">&nbsp;13. It would be of benefit to\r\nnote that under Section 2(12)(g)(iv) a society registered or deemed to have\r\nbeen registered under the Karnataka Societies Registration Act, 1960 would also\r\nbe amenable to the jurisdiction of Karnataka Lokayukta, subject to such society\r\nbeing under the control of State Government and which is notified in this\r\nbehalf in the official gazette. Thus, primary requirement for investigation\r\nbeing taken- up against a person falling under Section 2(12) is; (i) he/she\r\nshould be “public servant” as defined under Section 2(12) of the Act; (ii) and,\r\nif such person is a society as indicated in Section 2(12)(g)(iv), then such\r\nsociety should be registered under the Karnataka Societies Registration Act\r\n1960, under the control of State Government which is notified in the Official\r\nGazette.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">&nbsp;14. Petitioners herein are\r\nbeing investigated for their alleged acts or misdeeds said to have been\r\ncommitted by them as office bearers of the Association...</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">15.....Petitioners are not\r\nbeing investigated for their acts committed in the capacity of a “Government\r\nServant” as defined under Section 2(6) of the Act or for their acts as a\r\n“public servant” as defined under Section 2(12). On the contrary, it is to be\r\nnoticed at the cost of repetition that the entire allegation made by the\r\ncomplainant in his complaint ...revolves around the acts alleged to have been\r\ncommitted by the petitioners as office bearers of the Association. Hence, we\r\nare of the considered view that petitioners do not fall under the definition of\r\n“public servant” as defined under Section 2(12) of the Act.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">&nbsp;16.....there is no material on\r\nrecord to show that Association of which the petitioners were the office\r\nbearers of the society is controlled by the State Government and same has been\r\nnotified in the official gazette issued in that behalf by the Government of\r\nKarnataka.</span></div><i><br><b>Compiled by S. Basavaraj,\r\nAdvocate, Daksha Legal</b></i></p><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"> <o:p>&nbsp;</o:p></h4><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n</p>', '9f38d01338dc68a86779b7d85e618348.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-03-26', 1, '', '', '2020-12-12 17:39:44', '2020-12-29 23:30:42');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(247, 'BcTisMXaZPifavLf7C1fRAvTN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Person taking advantage of a provision of law cannot raise challenge to it. ', '<p style=\"text-align: justify;\"><b>\"A person taking advantage or benefit of a provision of law, shall not be permitted to raise a challenge to the very same provision under which the benefit was taken\"</b><br></p><p><span style=\"font-size: 1.3125rem;\">Jayamma vs The Regional Commissioner and others. Writ Petition 11768/2020 decided on 23 October 2020.&nbsp;</span></p><p></p><p style=\"text-align: center;\"></p><div style=\"text-align: center;\"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/10/devdas.png?w=224\" alt=\"This image has an empty alt attribute; its file name is devdas.png\" style=\"font-size: 0.875rem;\"></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>Judgment Link:</b></span></div><div style=\"text-align: justify;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/345337/1/WP11768-20-23-10-2020.pdf\" target=\"_blank\" style=\"background-color: rgb(255, 255, 255); font-size: 0.875rem;\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/345337/1/WP11768-20-23-10-2020.pdf</a><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/345337/1/WP11768-20-23-10-2020.pdf\" target=\"_blank\"><br></a></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br><b>Note:</b> This is a case where the President of Jilla Panchayat in earlier round of Writ Petition opted&nbsp; to&nbsp; take benefit of Rule 3(2) of&nbsp; the&nbsp; new&nbsp; Rules,&nbsp; 2020 under the Karnataka Gram Swaraj and Panchayat Raj Act, 1993.&nbsp; The petitioner in the present writ petition raised a challenge to the very same provision under which she&nbsp; took relief at the hands of&nbsp; the&nbsp; Court. The High Court hence relied on the rule of estoppel to reject the Writ Petition. The other question as to whether the 2020 Ordinance amending the provisions of Karnataka Gram Swaraj and Panchayat Raj Act, 1993 curtailing the term of office of the President from 5 years to 30 months is prospective or retrospective is kept open since the High Court rejected the Writ Petition on the preliminary ground of estoppel.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b><br>Relevant Paragraphs:</b> <br><br>12. It is profitable&nbsp; to&nbsp; notice&nbsp; series&nbsp; of&nbsp; declarations&nbsp; made&nbsp; by&nbsp; the&nbsp; Hon’ble&nbsp; Apex&nbsp; Court&nbsp; on&nbsp; “Rule&nbsp; of&nbsp; estoppel”.&nbsp; In&nbsp; the&nbsp; &nbsp;case&nbsp; of Nagubai Ammal Vs. B. Shama Rao,&nbsp; reported&nbsp; in&nbsp; AIR&nbsp; 1956 SC 593, it was held “it is&nbsp; clear&nbsp; from&nbsp; the&nbsp; above&nbsp; observations that the maxim that a person cannot ‘approbate&nbsp; and reprobate’&nbsp; is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and&nbsp; to the persons who&nbsp; are parties thereto.”&nbsp; In C.Beepathumma Vs. Velasari Shankaranarayana Kadambolithaya reported in&nbsp; AIR&nbsp; 1965&nbsp; SC&nbsp; 241,&nbsp; the&nbsp; classic&nbsp; words of Maitland in Maitland’s Lectures on equity was appreciatingly noticed- “That he who accepts a benefit under&nbsp; a deed or Will or other instrument must adopt the whole contents of that instrument, must conform to all&nbsp; its&nbsp; provisions and renounce all rights that are inconsistent with it.” Similarly, the same principle in White and Tudore’s Leading Cases in Equity, was noticed as follows;&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">“Election is the obligation imposed upon a party by courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is clear intentions of the person from whom he derives one that he should not enjoy both…. That he who accepts benefit under a deed or Will must adopt the whole contents of the instrument.” All the above decisions were authoritatively quoted in National Insurance Co. Ltd. Vs. Mastan and Another (2006) 2 SCC 641. It was held that “the “doctrine of election” is a branch of “rule of estoppel”, in terms whereof a person may be precluded by his action or conduct or silence when it&nbsp; is his duty to speak, from asserting a&nbsp; right&nbsp; which&nbsp; he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to select either of them but not both. Although there are certain exceptions to the same rule but the same has no application in the instant case.” Their Lordships were dealing with the right of a person to claim compensation under two separate enactments. It was held&nbsp; that the person entitled to compensation may without prejudice to the provisions of one enactment, claim such compensation under either of those acts but not under both.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">&nbsp;</span></div><p style=\"text-align: justify;\"><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem; text-align: left;\">13. In the case of City Montessori School Vs. State of Uttar Pradesh and Others (2009) 14 SCC 253, once again the decision in Nagubai Ammal Vs. B.Shama Rao (supra) was quoted to the effect that, “&nbsp; when on the same facts, a person&nbsp; has right to claim one or two reliefs and with full knowledge he elects to claim one and obtains it, it is not open to him thereafter to go back on his election and claim the alternative relief.” While citing the decision in Union of India Vs. Krishan Lal Arneja (2004) 8 SCC 453, it was held that a party consenting to an order cannot be permitted to resile therefrom while retaining the benefit obtained therefrom.&nbsp;<br></span><span style=\"font-size: 0.875rem;\"><br>14. In Shyam Telelink Limited Vs. Union of India (2010) 10 SCC 165, while quoting the maxim “qui approbat non- reprobat” (one who approbates cannot reprobate), it was held that the said maxim is firmly&nbsp; embodied&nbsp; in&nbsp; English&nbsp; common&nbsp; law and&nbsp; often applied by Courts in this country.&nbsp; &nbsp;It is akin to&nbsp; the doctrine of benefits and burdens which at its most basic&nbsp; levels provides that a person taking advantage under an instrument which both grants a benefits and imposes a burden cannot take the former without complying with the latter. In the same decision, while noticing the decision in Verschures Creameries Ltd. Vs. Hull &amp; Netherlands Steamship Co. Ltd, according to Halsbury’s Laws of England 4th Edn., Vol.16:&nbsp;</span></div><span style=\"font-size: 0.875rem;\">“1508. Examples of&nbsp; the common law principle of&nbsp; election- After taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside.” was quoted and thereafter held that this rule has to be applied to do&nbsp; equity and must not be applied in such a manner as to violate the principles of right and good conscious.&nbsp;</span><span style=\"font-size: 0.875rem;\"><br></span><span style=\"font-size: 0.875rem;\"><br>15. In State of Punjab and others Vs. Dhanjit Singh Sandhu (2014) 15 SCC 144, it was held as follows: “the doctrine of election is based on the rule of estoppel,&nbsp; the principle that one cannot approbate and reprobate&nbsp; is inherent in it. The doctrine of estoppel&nbsp; by&nbsp; election&nbsp; is&nbsp; one&nbsp; among the species of estoppel in pais (or equitable estoppel) which is a rule of equity. By this law, a person&nbsp; may&nbsp; be&nbsp; precluded, by way of&nbsp; his&nbsp; actions,&nbsp; or&nbsp; conduct,&nbsp; or&nbsp; silence&nbsp; when it is his duty to speak from asserting a right&nbsp; which he&nbsp; would&nbsp; have otherwise had.&nbsp; The&nbsp; doctrine&nbsp; of&nbsp; “approbate&nbsp; and&nbsp; reprobate” is only a species of estoppel, it implies only to the conduct of the parties. As in the case of estoppel, it cannot operate against the provisions of statute. It&nbsp; is&nbsp; settled&nbsp; proposition of law that once an order has been passed, it is complied with accepted by other party and he derived&nbsp; the&nbsp; benefit out of it, he cannot challenge it on any ground.”&nbsp;</span></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br>17. In Ramesh Chandra Sankla and Others vs. Vikram Cement and Others, (2008) 14 SCC 58, it was held that “it is well settled that jurisdiction of the High Courts under Articles 226 and 227 is discretionary and equitable. The power of superintendence under Article 227 of the Constitution conferred on every High Court over all courts and tribunals throughout the territories in relation to which its exercises jurisdiction is very wide and discretionary in nature.&nbsp; It can&nbsp; be exercised ex debito justitiae i.e. to meet the ends of justice. It is equitable in nature. While exercising supervisory jurisdiction, a High Court not only acts as court of law but also as a court of equity. It is, therefore, within the power and also the duty of the Court to ensure that power of superintendence must “advance the ends of&nbsp; justice&nbsp; and uproot injustice…. Powers under Articles 226 and 227 are discretionary and equitable and are required to be&nbsp; exercised in the larger interest of justice. While granting relief in favour of the applicant, the Court must take into account the balancing of interests and equities. It can mould relief considering the facts of the case. It can pass an appropriate order which justice may demand and equity may project. Court of equity must go much further both to give and refuse relief in furtherance of public interest. Granting or&nbsp; withholding of relief may properly be dependent upon consideration of justice, equity and good conscience.”</span></div><i><div style=\"text-align: justify;\"><i style=\"font-size: 0.875rem;\"><br><b>Compiled by S.Basavaraj, Advocate, Daksha Legal&nbsp;</b></i></div></i><p></p><p style=\"text-align: justify;\"><br></p>', '15a1581aa0b65cb5ba358c386191c196.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-23', 1, '', '', '2020-12-12 17:50:20', '2020-12-29 23:41:27'),
(248, 'NZMv26Oc67p87uqVqeR7Yvwr1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Dying Declaration - Anatomised. ', '<h4><h3 style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\"><b>Dying Declaration anatomised- \"Death waiting at the doorsteps gives a unique serenity to the mind compelling the maker to state nothing but the truth.\"</b></span></h3><h4 style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\">Beerappa vs The State through Town P.S. Yadgiri. Criminal Appeal 200036/2015 decided on 4 September 2020. Justice Krishna S Dixit and Justice Krishna P Bhat.  </span></h4></h4><h4><div style=\"text-align: center;\"><br></div>Judgment Link: </h4><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/338981/1/CRLA200036-15-04-09-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/338981/1/CRLA200036-15-04-09-2020.pdf</a></h4><h4>\"What is a dying declaration? It is vain on our part to attempt to define the term, for, it ought to remain undefined and the exercise of characterizing it as such and investing it with probative sanctity, to some extent, must essentially remain an exercise particular to each case. It has, paradoxically, an undying quality about it. It is not a declaration when made; but it has all the solemnity attached to a declaration once the maker dies subject to what is stated in Section 32 (l) of Evidence Act; and the construction put on it in Laxman’s case (supra) and various other authorities. Why is this solemnity attached when the maker is not available to be cross- examined? Does it not seem illogical? Probably, yes. Experience acquired over centuries due to eternal conflict between human nature –  his  proclivities,  and the law has apparently made the law makers to hew this principle to bring about a balance, as  it  were.  Sagacious and revered Oliver Wendell Holmes Jr. put it pithily when he said “The life of the law has not been logic; it has been experience.” Literature tells us, Sohrab, the son, had apparently retorted to Rustom, the father, “Man who are thou who dost deny my  words? Truth sits upon the lips of dying men, and falsehood, while lived, was far from mine.” (Mathew Arnold  - Sohrab and Rustum). We said - it  has  an  undying  quality about it, for, it is made at a time when the undying hope of life inhering in the chest of every human, starts ebbing away and when the  stark portents of death waiting at the door steps gives a  unique serenity to the mind compelling the maker to state nothing but the truth.\" Justice Krishna P Bhat speaking for the bench. <br>Relevant paragraphs: 16. There is no statutory requirement that the dying declaration need to be in any particular format and further that it should carry certification by a medical officer that the deponent was in a fit state of mind to give statement. A Constitutional Bench of Hon’ble Supreme Court of India in (2002) 6 SCC 710 (Laxman Vs. State of Maharashtra) has observed as follows: <br>“3.  The     juristic     theory  regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross- examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. <br>17. Similarly the Hon’ble Supreme Court of India in (2019) 6 SCC 145 (Poonam Bai Vs. State of Chhattisgarh) has observed as follows: <br>“10. There cannot be any dispute that a dying declaration can be the sole basis for convicting the accused. However, such a dying declaration should be trustworthy, voluntary, blemishless and reliable. In case the person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make the statement and if there are no suspicious circumstances, the dying declaration may not be invalid solely on the ground that it was not certified by the doctor. Insistence for certification by the doctor is only a rule of prudence, to be applied based on the facts and circumstances of the case. The real test is as to whether the dying declaration is truthful and voluntary. It is often said that man will not meet his maker with a lie in his mouth. However, since the declarant who makes a dying declaration cannot be subjected to cross-examination, in order for the dying declaration to be the sole basis for conviction, it should be of such a nature that it inspires the full confidence of the court. In the matter on hand, since Exh. P2, the dying declaration is the only circumstance relied upon by the prosecution, in order to satisfy our conscience, we have considered the material on record keeping in mind the well established principles regarding the acceptability of dying declarations.” <br>18. Further, in a case reported in (2009) 13 SCC 614 (Kamalavva  and  Another  Vs.  State  of  Karnataka) the Hon’ble Supreme Court of India has observed as follows: <br>“23. The Constitution Bench in Laxman case also referred to an earlier decision of this Court in Koli Chunilal Savji v . State of Gujarat, wherein it was held that the ultimate test with regard to the admissibility of a dying declaration is whether the dying declaration can be held to be a truthful one and voluntarily given. In the said decision it was also held that before recording the declaration, the officer concerned must find that the declarant was in a fit condition to make the statement. The aforesaid ratio of Koli Chunilal Savji  case  was    affirmed by the Constitution Bench in Laxman case.In Vikas V. State of Maharashtra this Court elaborately  discussed  the  previous relevant decision governing the legality of dying declaration and observed in para 45 as follows : (SCC pp.529-30)<br>\"45. The Court, referring to earlier case law, summed up principles governing  dying declaration as under: (Paniben case, SCC pp. 480-81, para 18)<br>i. There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.<br>ii. If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.<br>iii. This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a  fit state to make the declaration.<br>iv. Where dying declaration is  suspicious it should not be acted upon without corroborative evidence.<br>v. Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.<br>vi. A dying declaration which suffers from infirmity cannot form the basis of conviction.<br>vii. Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.<br>viii. Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.<br>ix Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration,  the medical opinion cannot prevail.<br>x. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.\"<br>After referring to the decision of this Court in Khushal Rao v. State of Bombay, this Court in Vikas reiterated the legal position that where a dying declaration is recorded by a competent Magistrate, it would stand on a much higher footing inasmuch as a competent Magistrate has no axe to grind against the person named in the dying declaration of the victim and in absence of circumstances showing anything to the contrary, he should not be disbelieved by the court.<br>In Nallapati Sivaiah Vs. SDO, in para 22 it was stated thus: (SCC p.474)<br>“22. It is equally well settled and needs no restatement at our hands that dying declaration can form the sole  basis for conviction. But at the same time due care and caution must be exercised in considering weight to be given to dying declaration in as much as there could be any number of circumstances which may affect the truth. This Court in more than one decision cautioned that the courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased  was in a fit mental condition to make the dying declaration, the courts have to look for the medical opinion.\"<br>32. The technical objection raised by the counsel for the appellant regarding  the unavailability of doctor’s certification and endorsement as to mental fitness of the deceased is liable to be rejected inasmuch as the same has been held by this Court in numerous decisions as  a mere rule of prudence and not the ultimate test as to whether or not the said dying declaration was truthful or voluntary.”<br>20. What is a dying declaration? It is vain on our part to attempt to define the term, for, it ought to remain undefined and the exercise of characterizing it as such and investing it with probative sanctity, to some extent, must essentially remain an exercise particular to each case. It has, paradoxically, an undying quality about it. It is not a declaration when made; but it has all the solemnity attached to a declaration once the maker dies subject to what is stated in Section 32 (l) of Evidence Act; and the construction put on it in Laxman’s case (supra) and various other authorities. Why is this solemnity attached when the maker is not available to be cross- examined? Does it not seem illogical? Probably, yes. Experience acquired over centuries due to eternal conflict between human nature –  his  proclivities,  and the law has apparently made the law makers to hew this principle to bring about a balance, as  it  were.  Sagacious and revered Oliver Wendell Holmes Jr. put it pithily when he said “The life of the law has not been logic; it has been experience.” Literature tells us, Sohrab, the son, had apparently retorted to Rustom, the father, “Man who are thou who dost deny my  words? Truth sits upon the lips of dying men, and falsehood, while lived, was far from mine.” (Mathew Arnold  - Sohrab and Rustum). We said - it  has  an  undying  quality about it, for, it is made at a time when the undying hope of life inhering in the chest of every human, starts ebbing away and when the  stark portents of death waiting at the door steps gives a  unique serenity to the mind compelling the maker to state nothing but the truth. <br>Conviction of the appellant for the offence punishable under Section 302 IPC upheld.</h4><h4><br><i>Compiled by S.Basavaraj, Advocate, Daksha Legal </i></h4><p><br></p>', '18f6bcda2852a6c9d85e620a0951a63f.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-09-04', 1, '', '', '2020-12-12 17:54:40', '2020-12-20 21:07:30'),
(249, 'Twq3tWCD07RmAvTUzHGIvjVVj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'CPC. Answering all issues is mandatory. Failure vitiates judgment subject to exception. ', '<p style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Civil Procedure Code. Trial Court is bound to answer all issues framed in a suit. Failure vitiates entire judgment subject to exception.</b></span></p><p style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Mallappa Ramappa Naik and others vs Ittappa Ramappa Banti @ Heggani and others. Regular Second Appeal 1811/2005 decided on 14 October 2020. Justice V. Shrishananda.&nbsp;</span></p><div style=\"text-align: center;\"><img src=\"https://dakshalegalhome.files.wordpress.com/2020/10/shreeshanand.png?w=300\" alt=\"This image has an empty alt attribute; its file name is shreeshanand.png\"><span style=\"font-size: 1.3125rem;\"><br></span></div><p><b>Judgment Link:&nbsp;<br></b><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/337963/1/RSA1811-05-14-08-2020.pdf\" target=\"_blank\" style=\"background-color: rgb(255, 255, 255); font-size: 0.875rem;\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/337963/1/RSA1811-05-14-08-2020.pdf</a></p><p></p><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Relevant Paragraphs:</b></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">13. Order XX Rule 5 CPC contemplates a mandatory duty on Trial Court to answer all issues framed in a suit. Non answering of all issues results in vitiating the entire judgment subject to exception carved out in Order XIV Rule 2 CPC.&nbsp;</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">14. The term “issue” in a civil case means a disputed question relating to rival contentions in a suit.&nbsp; It&nbsp; is the focal point of disagreement, argument or decision. Needless to emphasise that framing of appropriate issue/s serves the laudable object of narrowing the conflict in a succinct manner. Scheme of Civil Procedure Code, contemplates that the court must thereafter proceed with the trial based on the issues and pronounce&nbsp; its&nbsp; judgment&nbsp; by answering all the issues.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">17. ...what constitutes a&nbsp; judgment&nbsp; is&nbsp; no&nbsp; longer res integra. In this regard, reliance is placed on the judgment of the Hon’ble Apex Court in the case of&nbsp; K.V.&nbsp; Rami Reddi v. Prema, reported in AIR 2008 Supreme Court 1534. The relevant portion of the said judgment is culled out hereunder:&nbsp;</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">9. The ultimate question is whether in the instant case the judgment has been validly delivered? If it is a mere procedural irregularity and the Judge concerned had&nbsp; not signed the judgment, then the judgment thus rendered cannot be invalidated. Order XX Rule 1 CPC postulates that after the case has been heard, the court hearing the same shall pronounce the judgment in open court by dictation to the shorthand writer, wherever it is permissible. It bears the date on which it is pronounced. The date of the judgment is never altered by the date on which the signature has been put subsequently.&nbsp; The mere fact that a major portion has been dictated by the learned Judge in the judgment already&nbsp; dictated, will not, by itself, lead to the conclusion that the judgment had been delivered.&nbsp;</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">10. In Smt. Swaran Lata Ghosh Vs. Harendra Kumar Banerjee and Anr. (AIR 1969 SC 1167), it was inter-alia held as follows (at Para 6):</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">“Trial of a civil dispute in Court is intended to&nbsp; achieve, according to law and the procedure of the Court, a judicial determination between the contesting parties of the matter in controversy. Opportunity to the parties interested in the dispute to present their respective cases on question of law as well as fact, ascertainment of facts by means&nbsp; of&nbsp; evidence&nbsp; tendered by the parties and adjudication by a reasoned judgment of the dispute upon a finding on the facts in controversy and application of the law to the facts found, are essential attributes of a judicial trial. In a judicial trial, the judge not only must reach a conclusion which he regards as just, but, unless otherwise permitted, by the practice of the Court or by law, he must record the ultimate mental process leading from the dispute to its solution. A judicial determination of a disputed claim where substantial questions of law or fact arise is satisfactorily reached, only if it be supported by&nbsp; the most cogent reasons that suggest themselves to the Judge; a mere order deciding the matter in dispute not supported by reasons is no judgment at all. Recording of reasons in support of a decision of a disputed claim serves more purposes than one. It is intended to ensure that the decision is not the result of&nbsp; whim or fancy, but of a judicial approach to the matter in contest; it is also intended to ensure adjudication of the matter according to law and the procedure established by law. A party to the dispute is ordinarily entitled to know the grounds on which the Court has decided against him, and more so, when the judgment is subject to appeal. The Appellate Court will then have adequate material on which it may determine whether the facts are properly&nbsp; ascertained, the law has been correctly applied and the resultant decision is just. It is unfortunate that the learned Trial Judge has recorded no reasons in support of his conclusion, and the High Court in appeal merely recorded that they thought that the plaintiff had sufficiently proved the case in the plant.”&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">11.The declaration by a Judge of his intention of what&nbsp; his&nbsp; `judgment’&nbsp; is&nbsp; going&nbsp; to&nbsp; be,&nbsp; or&nbsp; a&nbsp; declaration&nbsp; of his intention of what final result it is going to embody, is not a judgment until he had crystallized his intentions into a formal shape and pronounced it in open court as the final expression of his mind.&nbsp;</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">12. The CPC does not envisage the writing of a judgment after deciding the case by an oral judgment and it must not be resorted to and it would be against public policy to ascertain by evidence alone what the `judgment’ of&nbsp; the Court was,&nbsp; where&nbsp; the final result&nbsp; was announced&nbsp; orally&nbsp; but&nbsp; the&nbsp; `judgment’,&nbsp; as&nbsp; defined&nbsp; in&nbsp; the CPC embodying a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision, was finalized later on.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">13. Section 2(9) of the CPC defines a “judgment” to mean the statement given by the Judge of the grounds for a decree or order. “There is yet another infirmity in the case which relates to the “judgment” passed by the&nbsp; single&nbsp; Judge and upheld by the Division Bench.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">“Judgment” as defined in Section 2(9) of the Code of Civil Procedure means the statement given by the Judge of the grounds for a decree or order. What a judgment should contain is indicated in Order 20 Rule 4(2) which says that a judgment “shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision”.&nbsp; It should be a self-contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the Court and in what manner. The process of reasoning by which the Court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment.”</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">15. Undisputedly, the Trial Judge had not completed the judgment before he delivered his decision.&nbsp; That being so, the impugned judgment does not suffer from any infirmity to warrant interference. What the High Court has directed is to hear only the arguments afresh. While dismissing the appeal, we direct that the arguments shall be heard afresh and the Trial Court&nbsp; shall deliver its judgment as early as practicable, preferably within three months from today. To avoid unnecessary delay, let the parties appear before the Trial Court on 05.03.2008 so that the date for arguments can be fixed.”&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">18. It is also necessary to place reliance on the decision of this court reported in AIR 2001&nbsp; Kant&nbsp; 120, in&nbsp; the case of Lakshmamma vs Kamalamma And Others, where in it was held as under:&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">“17. The Trial Court also erred in not considering and deciding issue Nos. (2) to (5). Under Order 20, Rule 5&nbsp; it is mandatory that the Court shall state its finding or decision with reasons thereof upon each separate issue and all the distinct issues have to be answered by the finding supported by reasons. The exceptional situation is provided under Order 14, Rule 2 where an issue relating to the jurisdiction or a bar to a suit created by any law for the time arises for determination and if&nbsp; Court can once and for all dispose of the case with reference to the said issues only. In such a situation, the Court is entitled to postpone the settlement of other issues only after that issue has been determined&nbsp; and&nbsp; may deal with the suit in accordance&nbsp; with the decision on the said preliminary issues. In the&nbsp; instant&nbsp; case,&nbsp; issue No. (1) obviously cannot be considered as one covered by the purview of Order 14, Rule 2.”</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">19. On careful perusal of the above statutory provisions of Order XIV Rule 2 and Order XX Rule 5&nbsp; CPC&nbsp; Trial Court after remand order&nbsp; ... was&nbsp; duty&nbsp; bound answer all issues raised in the suit while passing the judgment....&nbsp; Non-recording&nbsp; of&nbsp; the&nbsp; findings on the remaining issues by the Trial Court, is&nbsp; totally&nbsp; erroneous and cannot be countenanced&nbsp; in&nbsp; the&nbsp; eye&nbsp; of&nbsp; law&nbsp; and can be safely termed as perverse.&nbsp;</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">20. Further, on applying legal principles enunciated in Rami Reddy Supra to the case on hand, non recording of finding on remaining issues by Trial Court other than additional Issue Nos.4 and 5, the judgment cannot be termed as a judgment in the eye of law and it is incomplete judgment.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">29. Therefore, this Court has no option, but to set aside the judgment and decree so passed by&nbsp; Trial&nbsp; Court and confirmed by first appellate court and remand the matter for decision afresh by hearing the arguments on all issues as recording of evidence is concluded.</span></div><i><b><br>Compiled by S. Basavaraj, Advocate, Daksha Legal&nbsp;</b></i><p></p><p><br></p>', '3a1851a1d7d184f12237936daccc835e.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-14', 1, '', '', '2020-12-12 18:12:11', '2020-12-29 23:26:05'),
(250, 'amW5VPpUJkCTM9ZoDa7y7rJ0K', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Cruelty by husband falling short of gravity under Section 304B. He can still be convicted under Section 498A.', '<p style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><b>IPC. Sections 304B and 498A. Cruelty by husband falling short of\r\ngravity under Section 304B. He can still be convicted under Section 498A.</b><br></p><p><span style=\"font-size: 1.3125rem;\">Kallegowda and another vs\r\nState of Karnataka. Criminal Appeal 539 &amp; 504/2014 decided on 21 October\r\n2020.</span></p><b> Judgment Link:</b><br>\r\n<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/345479/1/CRLA539-14-21-10-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/345479/1/CRLA539-14-21-10-2020.pdf<br><div style=\"text-align: justify;\"><font color=\"#000000\"><b><br></b></font></div></a><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Relevant Paragraphs:</b><span style=\"font-size: 0.875rem; font-weight: 400;\">&nbsp;</span></div></b><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">25. In\r\norder to prove the dowry death as contemplated under Section 304B of IPC and presumption\r\nunder Section 113B of Indian Evidence Act, necessary ingredients are required\r\nto be placed on record by the prosecution. The initial burden of proving the\r\ncase by bringing the evidence against the accused will not shift. However, if\r\nthe prosecution is able to bring all the circumstances and after discharging\r\nthe burden of proving the fact that the deceased was subjected to harassment\r\ndue to demand of dowry soon prior to the death, then the burden shifts on&nbsp;\r\nthe accused to rebut the same by leading evidence. The Hon’ble Supreme Court\r\nhas held in Baijnath and others vs. State of Madhya Pradesh reported in (2017)\r\n1 SCC 101 at paragraph 29 and 30 as follows:</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">&nbsp;“29. Noticeably this\r\npresumption as well is founded on the proof of cruelty or harassment of the\r\nwoman dead for or in connection with any demand for dowry by the person charged\r\nwith the offence. The presumption as to dowry death thus would get activated\r\nonly upon the proof of the fact that the deceased lady had been subjected to\r\ncruelty or harassment for or in connection with any demand for dowry by the\r\naccused and that too in the reasonable contiguity of death. Such a proof is\r\nthus the legislatively mandated prerequisite to invoke the otherwise\r\nstatutorily ordained presumption of commission of the offence of dowry death by\r\nthe person charged therewith.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">&nbsp;30. A conjoint reading of\r\nthese three&nbsp; provisions, thus predicate the burden of the prosecution to\r\nunassailably substantiate the ingredients of the two offences by direct and\r\nconvincing evidence so as to avail the presumption engrafted in Section 113-B\r\nof the Act against the accused. Proof of cruelty or harassment by the husband\r\nor her relative or the person charged is thus the sine qua non to inspirit the\r\nstatutory presumption, to draw the person charged within the coils thereof. If\r\nthe prosecution fails to demonstrate by cogent, coherent and persuasive\r\nevidence to prove&nbsp; such fact, the person accused of either of the above\r\nreferred offences cannot be held guilty by taking refuge only of the presumption\r\nto cover up the shortfall in proof.”</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">&nbsp;27. In order&nbsp; to attract\r\nSection 304B of IPC and Section 113-B of Indian Evidence Act for drawing a\r\nlegal presumption, the prosecution has to satisfy the ingredients of 304B is\r\nvery much essential. The Hon’ble Supreme Court in the case of Hira Lal vs.\r\nState (Government of NCT of Delhi) reported in (2003) 8 SCC 80, at paragraph-8\r\nhas held as under:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(Section 304B IPC extracted) The\r\nprovision has application when death of a woman is caused by any burns or\r\nbodily injury or occurs otherwise than under normal circumstances within seven\r\nyears of her marriage and it is shown that soon before her death she was\r\nsubjected to cruelty or harassment by her husband or any relatives of her\r\nhusband for, or in connection with any demand for dowry. In order to attract\r\napplication of Section 304B IPC, the essential ingredients are as follows:&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(i) The\r\ndeath of a woman should be caused by burns or bodily injury or otherwise than\r\nunder a normal circumstance.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(ii) Such a death should have occurred within\r\nseven years of her marriage.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(iii) She must have been subjected to cruelty or\r\nharassment by her husband or any relative of her husband.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(iv) Such cruelty or\r\nharassment should be for or in connection with demand of dowry.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(v) Such\r\ncruelty or harassment is shown to have been meted out to the woman soon before\r\nher death. (Section 113-B Evidence Act extracted)&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The necessity for insertion\r\nof the two provisions has been amply analyzed by the&nbsp; Law Commission of\r\nIndia in its 21st Report dated 10-8-1988 on “Dowry Deaths and Law Reform”.\r\nKeeping in view the impediment in&nbsp; the pre-existing law in securing\r\nevidence to prove dowry-related deaths, the legislature thought it wise to\r\ninsert a provision relating to presumption of dowry death on proof of certain\r\nessentials. It is in this background that presumptive Section 113-B in the\r\nEvidence Act has been inserted. As per the definition of “dowry death” in\r\nSection 304B IPC and the wording in the presumptive Section 113-B of the\r\nEvidence Act, one of the essential ingredients, amongst others, in both the\r\nprovisions is that the woman concerned must have been “soon before her death”\r\nsubjected&nbsp; to cruelty or harassment “for or in connection with the demand\r\nof dowry”. Presumption under Section 113-B is a presumption of law. On&nbsp;\r\nproof of the essentials mentioned therein, it becomes obligatory on the court\r\nto raise a presumption that the accused caused&nbsp; the dowry death.”</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">&nbsp;28. In view of the law laid\r\ndown by the Hon’ble Supreme Court in the above said case and on perusal of\r\nthe&nbsp; evidence on record, the prosecution failed to place any evidence on\r\nrecord to show that the accused has harassed the deceased in connection with\r\nthe demand of dowry soon prior to the death in order to attract Section 304B of\r\nIPC or to draw a legal presumption under Section 113-B of Indian Evidence Act,\r\nthat the death of the deceased was dowry death.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">&nbsp;30. On perusal of the\r\nexplanation (b) to 498A clearly&nbsp; goes to show that accused No.1 harassed\r\nthe deceased for receiving the fixed deposit and to encash the same but the\r\ndeceased refused to do so which amounts to cruelty under Section 498A of IPC.\r\nTherefore, we hold the prosecution though failed to prove the offences against\r\nthe accused Nos.2 and 4 for the offences punishable under Sections 498A, 304B\r\nof IPC and Sections 3 and 4 of DP Act and also failed to prove the offence\r\nagainst accused No.1 under Section 304B of IPC and Sections 3 and 4 of DP Act,\r\nbut, successful in proving the offence under Section 498A.</span></div><i><br><b>Compiled by S.Basavaraj,\r\nAdvocate, Daksha Legal.</b><br></i><o:p>&nbsp;</o:p><p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal\"><o:p></o:p></p><p>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n</p>', '3a0017d06cc5fd6535d8cfea15de7296.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-21', 1, '', '', '2020-12-12 18:32:14', '2020-12-29 23:17:48');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(251, 'OKxPDk1BkPUlbM2xHbaAMljnm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Establishment of private schools. Government must adopt fair standards. ', '<p style=\"text-align: center;\"><p style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Private Schools. State action should be facilitative and complimentary to the establishment of private schools. \"Don\'t compare grant of permission to start educational institution with that of a wine shop. Adopt fair standards\".<br></b><span style=\"font-size: 1.3125rem;\">Nexgen Education Trust (Regd) vs State of Karnataka and others. Writ Petitions 6058/2020 &amp; 9554/2020 decided on 21 October 2020.&nbsp;<br></span><b><br>Judgment link:</b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/345480/1/WP6058-20-21-10-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/345480/1/WP6058-20-21-10-2020.pdf</a></p></p><p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">\"The respondents have invoked the provision ..in a pedantic way like a village priest ritualistically murmuring the hymn without knowing its inner meaning; the constitutional guarantee of free-primary-education will not fructify in the absence of enough number of schools and therefore, the State action should be facilitative &amp; complimentary to the establishment of private schools; the authorities need to be told that there exists a certain difference between a requisition for the grant of permission for founding a school and an application for the grant of&nbsp; excise&nbsp; license for opening a wine shop, they being poles asunder; the impugned orders lack elements of reason &amp; justice; the process by which they have been made falls short of “fair standards” which a Welfare State should profess &amp; practice.\" - Justice Krisha S Dixit.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b><br>Relevant paragraphs : </b><br><br>6. Way back in 1930, in Interview with Izvestia, Rabindranath Tagore, had powerfully diagnosed: ‘In my view the imposing tower of misery which today rests on the heart of India has its sole foundation in the&nbsp; absence&nbsp; of&nbsp; education’;&nbsp; Jean Dreze and Amartya Sen in their treatise “An Uncertain Glory – INDIA AND ITS CONTRADICTIONS” in Chapter V at pages 107 to 109 write as under:&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">“The role of basic education in the&nbsp; process&nbsp; of&nbsp; development and social progress is very wide and critically important. First, the capability to read and write and count has powerful effects on our quality of life; education leads to an informed life, to communicate with others, and to be generally in touch with what is going on. In a society, particularly in the modern world, where so much depends on the written medium, being illiterate is like being imprisoned, and school education opens a door through which people can escape incarceration. Second, our economic opportunities and employment prospects depend greatly on our educational achievements… Third, illiteracy muffles the political voice of people and thus contributes directly to their insecurity&nbsp; … Fourth, basic education can play a major role in tackling public health problems in general and public health in particular … Fifth, educational development has often been the prime mover in bringing about changes in public perceptions of the range&nbsp; and reach of what can be called human rights … Sixth,&nbsp; education can also make a difference to the understanding and use of legal rights… When people are illiterate, their ability to understand, invoke and use their legal rights can be very limited… Lack of schooling can directly lead to insecurities… Seventh,…the schooling of young women can substantially enhance the voice and power of women in family decisions… Eighth, even though education is no magic bullet against class barriers, it can make a big contribution to reduce inequalities related to the divisions of class and caste… Last but not least, learning and studying can be immensely enjoyable …&nbsp; quite apart from the long run benefits people receive from it…”&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">7. 86th Amendment to the&nbsp; Constitution&nbsp; has introduced Article 21A with effect from 12.12.2002 which reads “The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.” This provision is strengthened by adding clause (k) to Article 51A which enacts that it is a duty of a parent or guardian to provide opportunities for education to his/her child or ward between the age of six &amp; fourteen years; the importance of these new provisions can be understood by the observations of the Apex Court to the effect that without Article 21A, the other fundamental rights are rendered meaningless; without education, a citizen may never come to know of his other rights; since there is no corresponding constitutional right to higher education, the fundamental stress has to&nbsp; be&nbsp; on primary and elementary education, so that a proper foundation for higher education can be effectively laid vide BHARTIYA SEWA SAMAJ TRUST vs. YOGESHBHAI AMBALAL PATEL, (2012) 9 SCC 310;&nbsp;</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">8. It needs to be noted that the Parliament has enacted the Right to Education Act, 2009 and expanded its scope by a few amendments inter alia imposing an obligation even on private schools to admit students from the State Government quota, subject to certain conditions; this is because of the fact that the school education in the country inter alia suffers from the limitation of coverage; there are no enough number of government/public schools to cater to the societal need; a corresponding statutory duty is cast on the private schools to make the fundamental right to free education at the primary level, meaningful; if the applications for grant of permission to establish such schools are mindlessly declined, that would muffle the inner voice of the aforesaid constitutional amendments that are complimented by legislative instruments; the first sentence in the first paragraph of the Writ Petition, reads - “That the petitioner Trust has one of its object, is to establish educational institution and provide educational facilities to all sections of societies on no profit and no loss basis”; this has not been controverted by the respondents in their Statement of Objections; there is some material on record to show that the petitioner-Trust has been running several educational institutions; the version of the answering&nbsp; respondents&nbsp; that the petitioner-Trust is not adhering to Government Orders, lacks material particulars, to say the least;&nbsp; the&nbsp; school&nbsp; building in question is completely surrounded by a compound wall; in cities like Bangalore, several schools and fuel stations co-exist &amp; function as peaceful neighbours; it is nobody’s case that precautionary measures cannot be taken to avoid likely accidents; therefore, the existence of a petrol pump beside it, is only a feeble ground to deny permission;&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">9. The above aspects have not factored even in the penumbra of impugned decision making at the hands of the answering respondents; they have invoked the provisions of Rule 4 of Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula etc) Rules, 1995 as amended vide notification dated 08.03.2018, in a pedantic way like a village priest ritualistically murmuring the hymn without knowing its inner meaning; the constitutional guarantee of free-primary-education will not fructify in the absence of enough number of schools and therefore, the State action should be facilitative &amp; complimentary to the establishment of private schools; the authorities need to be told that there exists a certain difference between a requisition for the grant of permission for founding a school and an application for the grant of&nbsp; excise&nbsp; license for opening a wine shop, they being poles asunder; the impugned orders lack elements of reason &amp; justice; the process by which they have been made falls short of “fair standards” which a Welfare State should profess &amp; practice.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">In the above circumstances, these Writ Petitions succeed; a Writ of Certiorari issues invalidating the impugned orders; the matter is remitted back to the 2nd respondent- DDPI for consideration afresh, in accordance with law and after providing an opportunity of hearing to all the stakeholders. Time for compliance is eight weeks from the date a copy of this order is produced, subject to the rider that delay if brooked shall entail the concerned official personally with a cost of Rs.10,000/- per week payable to the petitioner-Trust; the time taken by the petitioner-Trust for production of documents or the like, shall be excluded while computing the said period of eight weeks.</span></div><i><div style=\"text-align: justify;\"><b><br></b></div><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.&nbsp;</b></i></p><p><br></p>', '309949e437113fd56880c40df79fb669.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-21', 1, '', '', '2020-12-12 18:36:27', '2020-12-29 19:11:53'),
(252, 'FGfnbLga0BF7IozN2WXiK1bo1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act 1996.  Additional award under Section 33 forms part of the arbitral award. Remedy appeal and not Writ ', '<p style=\"text-align: center; \"><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Arbitration and Conciliation Act, 1996. Correction and interpretation of award. Additional award under Section 33 forms part of the arbitral award. Only recourse is appeal under Section 34. Writ not maintainable against such an award.</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Hubli Electricity Supply Company Ltd vs M/s. Sharavathy Conductors Company Pvt Ltd. Writ Petition 103813/2016 decided on 15 October 2020. Justice S. Vishwajith Shetty.&nbsp;</span></div></p><p><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Judgment Link:</b></div> <div style=\"text-align: justify;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/345144/1/WP103813-16-15-10-2020.pdf\" target=\"_blank\" style=\"background-color: rgb(255, 255, 255); font-size: 0.875rem;\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/345144/1/WP103813-16-15-10-2020.pdf</a><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/345144/1/WP103813-16-15-10-2020.pdf\" target=\"_blank\"><br></a></div><br><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Note: </b><span style=\"font-size: 0.875rem;\">The dispute between Hubli Electricity Supply Company Ltd and M/s. Sharavathy Conductors Company Pvt Ltd was referred to arbitration and the same was decided by Karnataka Micro&nbsp; and Small Enterprises Facilitation Council Bangalore/Arbitral Authority on 23:7:2015. Application under Section 33(1)(a) &amp; (4) was filed by the respondent on 18:8:2015 seeking additional award. The additional award was passed on 10:2:2016. The challenge to original award was made much after filing of this application.&nbsp;<br><br></span></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Relevant Paragraphs:&nbsp;</b></div></b><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">7.From a reading of Section 33 of the Act, it is very clear that the Arbitral Authority has got a power to correct and interpret its order and also pass additional award if an application is filed by the aggrieved party within the period prescribed in the said provision. A reading of sub-section 2 of Section 33 makes it very clear that if the Arbitral Tribunal considers an application under sub-section 1 of Section 33 and passes an order, it shall form part of the arbitral award. Perusal of the order impugned in this writ petition makes it clear that the said order is passed by Arbitral Authority in exercise of its powers under Section 33(1) of the Act. Therefore, the impugned order now passed by the Arbitral Authority forms a part of the original arbitral award.&nbsp;</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">8. Recourse available under the Act against any arbitral award is provided under Section 34 of the Act. The petitioner is therefore required to challenge the impugned order, which forms the integral part of the original award by taking recourse to Section 34 of the Act and the same cannot be challenged invoking Article 226 and 227 of the Constitution of India.</span></div><i><br><b>Compiled by S.Basavaraj, Advocate, Daksha Legal</b>&nbsp;</i></p><p><br></p>', 'da27fea95fdcb8759662a69370247a96.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-15', 1, '', '', '2020-12-12 18:41:55', '2020-12-29 19:05:41'),
(253, 'P9Af00pxLLnSEjwjORu28sN2y', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Stamp Act, 1957. Intending purchaser already in possession prior to agreement of sale. Purchaser has to pay stamp duty as if possession delivered \'under the agreement\'. Stamp duty cannot be avoided by relying on prior possession. ', '<p style=\"text-align: center;\"></p><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; font-family: var(--bs-font-sans-serif);\"><b>K. V. Venkatasubbaiah vs Rajappa by lrs. </b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; font-family: var(--bs-font-sans-serif);\"><b>Writ Petition 17460/2015 decided on 9 October 2020. </b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; font-family: var(--bs-font-sans-serif);\"><b>Justice N.S. Sanjay Gowda.&nbsp;</b></span></div><b><br></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>7. The question that arises for consideration in this&nbsp; writ petition is: “Whether a recital in an Agreement of Sale that the defendants were already in possession could be a factor to&nbsp; be&nbsp; considered in determining the stamp duty payable and ignoring the term that possession was being delivered under the Agreement in part performance of the contract?”&nbsp;</b></span></div><b><br></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>13. ...Article 5 (e) of the Schedule - When possession of the property is delivered or is agreed to be delivered before executing the conveyance, the stamp duty is same as a conveyance.&nbsp;<br><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>14. A plain reading of the said Article would indicate&nbsp; that if the Agreement relates to the sale&nbsp; of&nbsp; an immovable property and if in part performance of the contract, possession is delivered or is agreed to be delivered without executing the conveyance, then stamp duty on the agreement of sale would have to be paid as would be payable for a conveyance under Article 20 on the market value of the property. Therefore, for&nbsp; attracting Article 5 (e) (i) of the Schedule to the Act, essentially, the instrument (document) should be a document under which an immovable property is agreed to be sold and more importantly, in part performance of the Agreement, possession has been delivered or has been agreed to be delivered.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b><br>15. In other words, whenever, in part performance of&nbsp; an agreement of sale, the agreement indicates that possession is being handed over to the prospective purchaser, then, stamp duty as prescribed for a Conveyance will have to be paid on the market value of the property.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b><br>19. Under Section 53A of the Transfer of Property Act....., a purchaser by entering into a Contract of Sale and securing possession in&nbsp; furtherance of the said contract would be protected against any claim by the seller in respect of any right in respect of the property, except, of course those rights which are expressly provided in the contract of sale. Thus, a purchaser, by drafting of an appropriate contract, can protect his possession over the immovable property against the seller, without completing the conveyance.&nbsp;</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b><br>20. If such a course is adopted, it would lead to not&nbsp; only to a situation whereby the conveyance is not concluded but it would also inevitably result in evasion of stamp duty which would otherwise have to be paid on&nbsp; &nbsp;the Deed of conclusion of conveyance. This would&nbsp; thereby impact the revenue that the State would receive as Stamp Duty, which is undoubtedly, an&nbsp; essential&nbsp; source of revenue to the State.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b><br>25. Viewed from this angle, it becomes clear that the possession of the purchaser prior to the execution of the Agreement of Sale would be of no relevance at all for the purposes of applying Article 5(e)(i)&nbsp; of the Schedule to&nbsp; the Act.&nbsp; All that would be required for attracting Article&nbsp; &nbsp;5 (e)(i) of the Schedule to the Act is that the Agreement contains a recital that, in part performance of the agreement of sale, the prospective purchaser is either being put in possession or is agreed to be put in possession.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b><br>26. Thus, in this case, as a necessary consequence of the above discussion, it would emerge that the prior possession of the defendants over the lands as recited in the agreement would be of no relevance for the purpose of determining the stamp duty payable on the execution of the agreement of sale and the singularly&nbsp; key ingredient to be considered is the recital that possession was being delivered under the agreement in part performance of the contract.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b><br>28. ....if a person such as the defendants who already claim to be in&nbsp; possession, seek to contend&nbsp; in the agreement of sale that they are in possession or being continued in possession in part performance of the contract of sale, then, automatically Article 5 (e) (i) of&nbsp; the Schedule to the Act would be attracted and notwithstanding the earlier possession, the purchaser would still have to pay stamp duty as&nbsp; conveyance&nbsp; (Article 20) on the market value of the property.</b></span></div>', 'e51ff813f4653fd162b848164a946c4f.JPG', 'e1a6d08aa3320859edbe9dfedf2bde3a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-27', 1, '', '', '2020-12-12 18:51:01', '2023-01-27 15:45:47'),
(254, 'fjqUrfMgYJ6UMm5hWS8gY3seI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SARFAESI Act. Issuance of a defective notice under section 13 will not vitiate proceedings. ', '<p style=\"text-align: left;\"><b>SARFAESI Act. Issuance of a defective notice under section 13(2) will not vitiate proceedings unless substantial prejudice being caused to the borrower.</b><br><span style=\"font-size: 1.3125rem;\">M/s. L&amp;T Housing Finance Limited vs M/s. Trishul Developers and another. Civil Appeal 3413/2020 decided on 27 October 2020. Justice L. Nageswara Rao, Justice Hemant Gupta and Justice Ajay Rastogi.&nbsp;</span><span style=\"font-size: 1.3125rem;\"><br></span><span style=\"font-size: 1.3125rem;\"><br><b>Judgment Link:<br></b></span><a href=\"https://main.sci.gov.in/supremecourt/2019/25979/25979_2019_38_1501_24436_Judgement_27-Oct-2020.pdf\" target=\"_blank\"><b>https://main.sci.gov.in/supremecourt/2019/25979/25979_2019_38_1501_24436_Judgement_27-Oct-2020.pdf</b></a><a href=\"https://main.sci.gov.in/supremecourt/2019/25979/25979_2019_38_1501_24436_Judgement_27-Oct-2020.pdf\" target=\"_blank\"></a><br><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>HELD: </b>15. Notably from the very inception at the stage, when the&nbsp;</span><span style=\"font-size: 1.3125rem;\">proposal of taking a term loan from the appellant was furnished&nbsp;</span><span style=\"font-size: 1.3125rem;\">by the respondents vide their application dated 15th May, 2015&nbsp;</span><span style=\"font-size: 1.3125rem;\">and accepted by the appellant vide sanction letter dated 07th&nbsp;</span><span style=\"font-size: 1.3125rem;\">August, 2015 (P1), the letterhead which was used for the purpose&nbsp;</span><span style=\"font-size: 1.3125rem;\">clearly indicates that on the top of the letterhead towards right, it&nbsp;</span><span style=\"font-size: 1.3125rem;\">reflects “L&amp;T Finance (Home Loans)” and on the bottom towards&nbsp;</span><span style=\"font-size: 1.3125rem;\">left, is of “L&amp;T Housing Finance Ltd.” with their registered office&nbsp;</span><span style=\"font-size: 1.3125rem;\">in Mumbai and this has been duly signed by the authorised&nbsp;</span><span style=\"font-size: 1.3125rem;\">signatory of the borrower for M/s. Trishul Developers and by its&nbsp;</span><span style=\"font-size: 1.3125rem;\">guarantors.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 21px;\"><br></span></div><div style=\"font-size: 1.3125rem; text-align: justify;\"><span style=\"font-size: 1.3125rem;\">16. It manifests from the record that the respondents from the&nbsp;</span><span style=\"font-size: 1.3125rem;\">initial stage are aware of the procedure which is being followed by&nbsp;</span><span style=\"font-size: 1.3125rem;\">the appellant in its correspondence while dealing with its&nbsp;</span><span style=\"font-size: 1.3125rem;\">customers and that is the same practice being followed by the&nbsp;</span><span style=\"font-size: 1.3125rem;\">appellant when demand notice dated 16th December, 2016 was&nbsp;</span><span style=\"font-size: 1.3125rem;\">served at a later stage. The demand notice in explicit terms&nbsp;</span><span style=\"font-size: 1.3125rem;\">clearly indicates the execution of the Facility Agreement dated&nbsp;</span><span style=\"font-size: 1.3125rem;\">11th August, 2015 between the appellant (L&amp;T Housing Finance&nbsp;</span><span style=\"font-size: 1.3125rem;\">Ltd.) and the respondents (M/s. Trishul Developers through its partners) and of the default being committed by the respondents&nbsp;</span><span style=\"font-size: 1.3125rem;\">(borrower/guarantor) in furtherance thereof, a notice under&nbsp;</span><span style=\"font-size: 1.3125rem;\">Section 13(2) of the SARFAESI Act was served on the same&nbsp;</span><span style=\"font-size: 1.3125rem;\">pattern of the letterhead which is being ordinarily used by the&nbsp;</span><span style=\"font-size: 1.3125rem;\">appellant in its correspondence with its customers and the&nbsp;</span><span style=\"font-size: 1.3125rem;\">demand notice dated 14th June, 2017 without leaving any iota of&nbsp;</span><span style=\"font-size: 1.3125rem;\">doubt is in reference to the non¬fulfillment of the terms and&nbsp;</span><span style=\"font-size: 1.3125rem;\">conditions of the Facility Agreement dated 11th August, 2015&nbsp;</span><span style=\"font-size: 1.3125rem;\">executed between the parties and even the schedule of security&nbsp;</span><span style=\"font-size: 1.3125rem;\">profile which has been annexed thereto is in reference to the&nbsp;</span><span style=\"font-size: 1.3125rem;\">execution of Facility Agreement dated 11th August, 2015 and its&nbsp;</span><span style=\"font-size: 1.3125rem;\">non¬compliance of the provisions of the SARFAESI Act.&nbsp;</span></div><span style=\"font-size: 1.3125rem;\"><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">17. Even in the reply to the demand notice which was served by&nbsp;</span><span style=\"font-size: 1.3125rem;\">the respondents through their counsel dated 08th August, 2017&nbsp;</span><span style=\"font-size: 1.3125rem;\">in compliance to Section 13(3A) of the SARFAESI Act, there was&nbsp;</span><span style=\"font-size: 1.3125rem;\">no confusion left in reference to the correspondence taken place&nbsp;</span><span style=\"font-size: 1.3125rem;\">between the appellant (secured creditor) and the respondents&nbsp;</span><span style=\"font-size: 1.3125rem;\">(borrower) tendering their justification and assigning reasons for&nbsp;</span><span style=\"font-size: 1.3125rem;\">which compliance could not have been made and no objection&nbsp;</span><span style=\"font-size: 1.3125rem;\">was indeed raised by the respondents in regard to the defect if any, in the demand notice dated 14th June, 2017 which was served by the secured creditor i.e. “L&amp;T Housing Finance Ltd.” in&nbsp;</span><span style=\"font-size: 1.3125rem;\">compliance to the provisions of the SARFAESI Act or in&nbsp;</span><span style=\"font-size: 1.3125rem;\">furtherance to the proceedings initiated at the behest of the&nbsp;</span><span style=\"font-size: 1.3125rem;\">appellant under Section 13(4) read with Section 14 of the Act, for&nbsp;</span><span style=\"font-size: 1.3125rem;\">the first time, a feeble attempt was made in raising the alleged&nbsp;</span><span style=\"font-size: 1.3125rem;\">technical objection in a Securitisation Application filed before the&nbsp;</span><span style=\"font-size: 1.3125rem;\">DRT and succeeded.<br><br></span></div></span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">18. It may be relevant to note that the respondents (borrower)&nbsp;</span><span style=\"font-size: 1.3125rem;\">did not deny advancement of loan, execution of Facility&nbsp;</span><span style=\"font-size: 1.3125rem;\">Agreement, their liability and compliance of the procedure being&nbsp;</span><span style=\"font-size: 1.3125rem;\">followed by the secured creditor (appellant) prescribed under the SARFAESI Act.</span></div></span><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br>19. In the facts and circumstances, when the action has&nbsp;</span><span style=\"font-size: 21px;\">been taken</span><span style=\"font-size: 1.3125rem;\">taken by the competent authority as per the procedure&nbsp;prescribed by law and the person affected has a knowledge&nbsp;</span><span style=\"font-size: 1.3125rem;\">leaving no ambiguity or confusion in initiating proceedings under&nbsp;</span><span style=\"font-size: 1.3125rem;\">the provisions of the SARFAESI Act by the secured creditor, in&nbsp;</span><span style=\"font-size: 1.3125rem;\">our considered view, such action taken thereof cannot be held to&nbsp;</span><span style=\"font-size: 1.3125rem;\">be bad in law merely on raising a trivial objection which has no legs to stand unless the person is able to show any substantial&nbsp;</span><span style=\"font-size: 1.3125rem;\">prejudice being caused on account of the procedural lapse as&nbsp;</span><span style=\"font-size: 1.3125rem;\">prescribed under the Act or the rules framed thereunder still with&nbsp;</span><span style=\"font-size: 1.3125rem;\">a caveat that it always depends upon the facts of each case to&nbsp;</span><span style=\"font-size: 1.3125rem;\">decipher the nature of the procedural lapse being complained of&nbsp;</span><span style=\"font-size: 1.3125rem;\">and the resultant prejudiced if any, being caused and there&nbsp;</span><span style=\"font-size: 1.3125rem;\">cannot be a straitjacket formula which can be uniformly followed&nbsp;</span><span style=\"font-size: 1.3125rem;\">in all the transactions.</span></div><i style=\"font-size: 1.3125rem;\"><b><br>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></i></p><h4 style=\"text-align: center;\"><div style=\"text-align: left;\"><b><span style=\"font-size: 1.3125rem;\"></span></b></div></h4><p><br></p>', '55facf69fb5786539a1796ec77665d97.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-27', 1, '', '', '2020-12-12 18:54:23', '2020-12-29 18:58:38'),
(255, 'RL4vBPF1L24R5SKaBlwKTXMAK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'NDPS Act. Investigating Officers are Police Officers', '<h4></h4><p style=\"text-align: center;\"><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Investigating Officers in NDPS Cases Are \'Police Officers\'. Confessional Statements Made To Them Are Not Admissible.</b></div><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Tofan Singh vs State of Tamil Nadu. Criminal Appeal 152/2013 decided on 29 October 2020. (Majority view) Justice R.F.Nariman, Justice Navin Sinha and Justice Indira Banerjee.</span></div></span><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br><b>Judgment Link:</b></span></div> <div style=\"text-align: justify;\"><a href=\"https://main.sci.gov.in/supremecourt/2012/26682/26682_2012_33_1501_24551_Judgement_29-Oct-2020.pdf\" target=\"_blank\"><a href=\"https://main.sci.gov.in/supremecourt/2012/26682/26682_2012_33_1501_24551_Judgement_29-Oct-2020.pdf\" target=\"_blank\" style=\"background-color: rgb(255, 255, 255); font-size: 0.875rem;\">https://main.sci.gov.in/supremecourt/2012/26682/26682_2012_33_1501_24551_Judgement_29-Oct-2020.pdf</a><br></a></div></p><p style=\"text-align: justify;\"><br></p><p><br></p>', '2fbd407e9685d3364f2242ea2fb0bebf.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-29', 1, '', '', '2020-12-12 18:58:25', '2020-12-29 18:52:34'),
(256, 'MBT0VvEjk8n3LmjfYyNs7dNGV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Right to seek reference to arbitration is not lost if application under Section 8 is filed along with written statement', '<p style=\"text-align: center;\"></p><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Arbitration and Conciliation Act, 1986. Right to seek reference to arbitration is not lost if application under Section 8 is filed along with written statement.</b></div><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Pricewaterhouse Coopers Service vs Mohan Kumar Thakur.</span></div> </span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Miscellaneous First Appeal 8750/2019 decided on 5 November 2020.</span></div> </span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Justice B.V. Nagarathna and Justice N.S. Sanjay Gowda.</span></div></span><p></p><h4><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><p><b>Judgment Link:</b><br> <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/351911/1/MFA8750-19-05-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/351911/1/MFA8750-19-05-11-2020.pdf<br></a></p><p></p><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\"><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant paragraphs:&nbsp;</b></div></b><div style=\"text-align: justify;\"><br></div><p style=\"text-align: justify;\"></p><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">18. Whether a defendant would lose the right to seek for reference of the&nbsp; parties to arbitration, if the application for referring the parties to arbitration under Section 8 of the Act, is filed&nbsp; along with the written statement?<br><br></span></div><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">22 &amp; 23. A plain reading of the provision&nbsp; (Section 8) would indicate that a party to an arbitration agreement is entitled to seek for a reference to arbitration if the other party to the agreement has brought an action before a judicial authority in respect of a matter which is the subject of&nbsp; &nbsp;an arbitration agreement. This entitlement is however subject to two riders: Firstly, that the party applies for reference before&nbsp; he files his first statement of defence on the substance of the dispute and Secondly, that the application for reference should be accompanied by the original arbitration&nbsp; agreement or a certified copy of the arbitration agreement.<br><br></span></div></span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">23. The intent behind this provision is manifestly clear, which is, to ensure that once an agreement has been entered into which provides for resolution of any dispute that may arise between the parties during the working of the contract, the parties to the agreement, should seek for resolution of that dispute only through the medium of arbitration, a mode which they had voluntarily agreed to resort to at the time of entering into the agreement.<br><br></span></div></span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">29. Thus, the key ingredient to be examined while considering whether an application for referring the parties to arbitration under Section 8 of the Act is to be granted is to determine whether the defendant had unequivocally submitted to the jurisdiction of the judicial authority before whom an action has been&nbsp; brought,&nbsp; which in our country, would be the Civil Court before whom a suit has been filed by a party to an arbitration agreement.<br><br></span></div></span><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">33. The Apex Court in the case of Rashtriya Ispat Nigam Limited and Another Vs. Verma Transport Company – (2006) 7 SCC 275 has observed at paragraphs 36 and 42 as under:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“36. The expression “first statement on the substance of the dispute” contained in Section 8(1) of the 1996 Act must be contradistinguished with the expression “written statement”. It employs submission of the party to the jurisdiction of the judicial authority. What is, therefore, needed is a finding on the part of the judicial authority that the party has waived its right to invoke the arbitration clause. If an application is filed before actually filing the first statement on the substance of the dispute, in our opinion, the party cannot be said to have waived its right or acquiesced itself to the jurisdiction of the court. What is, therefore, material is as to whether the petitioner has filed his first statement on the substance of the dispute or not, if not, his application under Section 8 of the 1996 Act, may not be held wholly unmaintainable. We would deal with this question in some detail, a little later.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Waiver of a right on the part of a defendant to the lis must be gathered from the fact situation obtaining in each case. In the instant case, the court had already passed an ad interim ex parte injunction. The appellants were bound to respond to the notice issued by the Court. While doing so, they raised a specific plea of bar of the suit in view of the existence of an arbitration agreement. Having regard to the provisions of the Act, they had, thus, shown their unequivocal intention to question the maintainability of the suit on the aforementioned ground.</span></div><div style=\"text-align: justify;\"><br></div><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">36..……even if a party submits his written statement and&nbsp; thereafter,&nbsp; seeks for reference and the same is not objected to by&nbsp; the other side, the Apex Court has held that there would be no bar on the Court to refer the parties to arbitration. This clearly leads to the conclusion that a Court is required to give effect to the intent of the&nbsp; parties to resort to the mode of resolving their disputes in the manner that they had originally agreed to.</span></div></span><div style=\"text-align: justify;\"><br></div><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">45. It is in this background that the act of defendant filing its written statement is required to be viewed and not in isolation. The fact that the defendant expressly indicated that it was not submitting to the jurisdiction of the Court was manifestly evident by the act of defendant filing an application under Section 8 of the Act along with the written statement. The filing of application under Section 8 of the Act at the&nbsp; very outset also makes it&nbsp; clear that the defendant was not waiving its right to seek for reference to arbitration.</span></div></span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">46.If, however, the defendant had filed its written statement and had participated in the proceedings and had then made an application seeking for reference,&nbsp; then, an argument could have been advanced that the defendant had waived its right to seek for reference to arbitration.</span></div></span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br>48. We are of the view that the term ‘not later than’ used in Section 8 (1) of the Act permits the filing of an application seeking for reference of the parties along the written statement and the filing of the written statement and application for reference under Section 8 simultaneously cannot and should not lead to&nbsp; an inference that the defendant had submitted to the jurisdiction of the Civil Court and had waived its right to seek for reference to arbitration as provided under&nbsp; Section 8 of the Act.</span></div></span><span style=\"font-size: 1.3125rem;\"><p style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Appeal allowed.<br><br></span></p><p><span style=\"font-size: 1.3125rem;\">34. What is discernable from the above decision is that&nbsp; a Court before which an application under Section&nbsp; 8 of the Act is made will have to record a finding as to&nbsp; whether the defendant had waived his right or acquiesced to the jurisdiction of the Court and&nbsp; this&nbsp; waiver of the right to seek for reference to arbitration must be gathered from the fact situation obtaining in&nbsp; each case.&nbsp;<br></span><span style=\"font-size: 1.3125rem;\"><br></span><p><span style=\"font-size: 1.3125rem;\">38. ……what is to be considered while determining an application under Section 8 of the Act is as to whether the defendant has exhibited his intention to submit himself to the jurisdiction of the Court and has waived his right to seek for reference to arbitration.&nbsp;<br></span><span style=\"font-size: 1.3125rem;\"><br>40. ….. a party to the arbitration agreement should have indicated his clear intention to submit to the jurisdiction&nbsp; of the Civil Court and should have expressly waived his right to seek for reference to arbitration and only if such&nbsp; a situation existed, the judicial authority could reject the request for reference to arbitration.<br><br></span></p></p></span><span style=\"font-size: 1.3125rem;\"><i><span style=\"font-weight: bolder;\">Compiled by S. Basavaraj, Daksha Legal.</span></i><p></p></span></div></h4><h4><p></p><p></p></h4><h4><p></p><p style=\"text-align: justify;\"><br></p><p></p></h4>', '59586c917c0f3105c839a3e49cf29989.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-05', 1, '', '', '2020-12-13 19:13:47', '2020-12-29 18:50:35'),
(257, 'K1R8Aqw2vmoc9B946y4ZBr7iI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'PTCL Act. Proceedings withdrawn or dismissed on merits can not be re-opened by fresh proceedings. ', '<p style=\"text-align: center;\"></p><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">PTCL Act. Proceedings withdrawn or dismissed on merits can not be re-opened by fresh proceedings. Second petition barred by estoppel acquiescence, abandonment and waiver. Karnataka High Court.</b></div><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Narayanaswamy vs The District Commissioner and others.</span></div></span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Writ Appeal 3855/2019 decided on 6 November 2020.</span></div></span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Chief Justice Abhay S Oka and Justice S.R. Krishna Kumar.</span></div></span><p></p><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\"><p style=\"text-align: left;\"></p><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Judgment Link:</b></span></div><div style=\"text-align: justify;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/303237/1/WA3855-19-06-11-2019.pdf\" target=\"_blank\"></a><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/303237/1/WA3855-19-06-11-2019.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/303237/1/WA3855-19-06-11-2019.pdf</a><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/303237/1/WA3855-19-06-11-2019.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\"></a><br><br></div></span></div><p><b>Relevant paragraphs: </b><br><span style=\"font-size: 0.875rem; text-align: justify;\"><br>10. …….the proceedings under Sections 4 and 5 of the PTCL Act having been originally initiated by the appellant and the sixth respondent in the year 2007, the same was dismissed by the Assistant Commissioner. The appeal filed before the Deputy Commissioner was dismissed as withdrawn.pursuant to a memo ….under which, the appellant and the sixth respondent have unconditionally withdrew the appeal. Under these circumstances, having unconditionally withdrawn the appeal as well as the earlier proceedings initiated by them, the appellant and the sixth respondent could not have&nbsp; initiated the fresh proceedings once again for a second time under Sections 4 and 5 of the PTCL Act on the same set of facts and on the same cause of action in respect of the same subject matter, i.e., the schedule property.</span></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">11. In view of the aforesaid undisputed facts and circumstances, we are of the view that once the proceedings under Sections 4 and 5 of the PTCL Act are filed/initiated&nbsp; &nbsp;and the same are either withdrawn or dismissed on merits, a fresh petition/second petition on the same cause of action&nbsp; and the same subject matter under Sections 4 and 5 of the PTCL Act is not maintainable and the same is liable to be dismissed on this ground alone. The second petition is&nbsp; clearly barred by the principles of estoppel, acquiescence, abandonment and waiver. Accordingly, though a finding in this regard has not been recorded by either the learned Single Judge or the authorities, having regard to the undisputed material on record, a second petition under Sections 4 and 5 of the PTCL Act would not be maintainable and the same is liable to be rejected on this ground alone.<br><br></span></div><h4><p><i><b>Compiled by S. Basavaraj, Daksha Legal.</b></i></p></h4>', '9decf52baf86b2026070d17938ab8afa.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-06', 1, '', '', '2020-12-13 19:23:08', '2020-12-29 18:39:33');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(258, 'Ng5Bvn7xS4vpPd3m4OZjKAZBR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'PTCL Act. Inordinate delay in challenging sale. Such proceedings are not maintainable. ', '<p style=\"text-align: center;\"><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978. Inordinate delay in challenging sale. Such proceedings are not maintainable.&nbsp;</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>Narayanaswamy vs The District Commissioner and others.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>Writ Appeal 3855/2019 decided on 6 November 2020.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>Chief Justice Abhay S Oka and Justice S.R. Krishna Kumar.</b></span></div><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br>Judgment Link:</b></span></div></span><div style=\"text-align: justify;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/303237/1/WA3855-19-06-11-2019.pdf\" target=\"_blank\" style=\"background-color: rgb(255, 255, 255); font-size: 0.875rem;\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/303237/1/WA3855-19-06-11-2019.pdf</a><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/303237/1/WA3855-19-06-11-2019.pdf\" target=\"_blank\"><br></a></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b><br>Relevant paragraphs:</b>&nbsp;<br><br>Judgments in Ibrahimpatnam Taluk Vyavasaya Coolie Sangham v. K. Suresh Reddy (2003) 7 SCC 667, Situ Sahu &amp; Others vs. State of Jharkahnd &amp; Others (2004) 8 SCC 340, Joint&nbsp; Collector&nbsp; Ranga Reddy District &amp; another vs. D.Narsing Rao &amp; Others (2015) 3 SCC 695, Chhedi Lal Yadav &amp; Others vs. Hari&nbsp; Kishore&nbsp; Yadav (dead) through L.Rs. &amp; Others&nbsp; (2018) 12 SCC 527, Nikkanti Rama Laxmi vs. State of Karnataka &amp; Another 2017 SCC Online SC 1862, Vivek M. Hinduja &amp; Others vs. M.Ashwatha &amp; Others 2017 SCC online SC 1858 referred to.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br>17. It is relevant to state that the aforesaid judgments were not rendered with reference to the provisions and proceedings of the PTCL Act. However, in the case of Nikkanti Rama Laxmi vs. State of Karnataka &amp; Another 2017 SCC Online SC 1862, the Apex Court applied the well settled principles governing the initiation of proceedings after an unreasonably long period to the proceedings under the PTCL Act and consequently held as under:-</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br>9. However, the question that arises is with regard to terms of Section 5 of the Act which enables any interested person to make an application&nbsp; for&nbsp; having the transfer annulled as void under Section 4 of the Act. This Section does not prescribe any period within which such an application can be made. Neither does&nbsp; it&nbsp; prescribe&nbsp; &nbsp;the&nbsp; &nbsp;period&nbsp; &nbsp;within&nbsp; &nbsp;which suo&nbsp; motu action&nbsp; may&nbsp; be&nbsp; taken.&nbsp; This&nbsp; Court&nbsp; in&nbsp; the&nbsp; case&nbsp; of Chhedi Lal Yadav v. Hari Kishore Yadav (D) Thr.&nbsp; Lrs.,&nbsp; &nbsp;2017&nbsp; (6)&nbsp; SCALE&nbsp; 459&nbsp; and&nbsp; also&nbsp; in&nbsp; the&nbsp; case&nbsp; &nbsp;of Ningappa v. Dy. Commissioner (C.A. No. 3131 of 2007, decided on 14.07.2011) reiterated a settled position in law that whether Statute provided for a&nbsp; period of limitation, provisions of the Statute must be invoked within a reasonable time. It is held that action whether on an application of the parties, or suo motu, must be taken within a reasonable time. That action arose under the provisions of a similar Act which provided for restoration of certain lands to farmers&nbsp; which were sold for arrears of rent or from which they were ejected for arrears of land from 1st January, 1939 to 31st December, 1950. This relief was granted to the farmers due to flood in the Kosi River which make agricultural operations impossible. An application for restoration was made after 24 years&nbsp; and was allowed.&nbsp; It is in that background that this Court upheld that it was unreasonable to do so. We have no hesitation in upholding that the present application for restoration of land made by respondent-Rajappa was made after an unreasonably long period and was liable to be dismissed on that ground. Accordingly, the judgments of the Karnataka&nbsp; High&nbsp; &nbsp;Court,&nbsp; &nbsp;namely, R. Rudrappa v.Deputy Commissioner, 2000 (1) Karnataka Law Journal, 523, Maddurappa v. State of Karnataka, 2006 (4) Karnataka Law&nbsp; Journal,&nbsp; 303 and G. Maregouda v. The Deputy Commissioner, Chitradurga District, Chitradurga, 2000 (2) Kr. L.J.Sh. N.4B holding that there is no limitation provided by Section 5 of the Act and, therefore, an application can be made at any time, are overruled.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br>18. Subsequently, the aforesaid Judgment in the case of Chhedi Lal Yadav’s case and Nekkanti Rama&nbsp; Lakshmi’s case were followed and reaffirmed&nbsp; by&nbsp; the Hon’ble Supreme Court in the case of Vivek M. Hinduja &amp; Others vs. M.Ashwatha &amp; Others, 2017 SCC online SC 1858which is held as under:-</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">4. Arguments have been addressed before us at length on whether the present appellants had perfected their titles on the date of the coming into force of the Karnataka Act. We are not inclined to go into this question because the instant matters can be decided on an aspect settled by this Court in the case of Chhedi Lal Yadav v. Hari Kishore Yadav (D) Thr. Lrs., and Nekkanti Rama Lakshmi v. State of Karnataka. In these two decisions, one of which arose under the Karnataka Act, this Court has held that the authorities entrusted with the power to annul proceedings purported to have been made by the original grantees, must exercise their powers to do so, whether on an application, or suo motu, within a reasonable time since no time is prescribed by law for taking such action. In the decided cases, action had been initiated after about 20 to 25 years of the coming into force of the Karnataka Act.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">In the present cases, it is undisputed that the action had been initiated after almost 20 years from the coming into force of the Karnataka Act. In principle, we do not see any reason why the delay in the present cases should be considered to be reasonable. There is no material difference between the period of delay in the present cases and he decided cases.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Relying on some&nbsp; observations&nbsp; in&nbsp; the&nbsp; case&nbsp; of Manchegowda v. State of Karnataka (1984) 3 SCC 301 and Sunkara Rajayalakshmi v. State of Karnataka (2009) 12 SCC 193, Shri Sunil Fernandes, learned counsel on the respondents’ side submitted that the outer limit for initiating action should be 30 years.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">We, however, find that the observations in those cases are not apposite and are made with reference to the period of prescription in respect of Government properties under the Limitation Act, 1963. It was also submitted on behalf of the respondents&nbsp; that&nbsp; Section&nbsp; 4 of&nbsp; &nbsp;the&nbsp; &nbsp;Karnataka&nbsp; &nbsp;Act proprio vigore annuls a transfer made in contravention of itself. Therefore, it makes no difference if the proceedings are initiated even after 20 to 25 years. We do not find it possible to accede to this submission. This Court in the case of Board of Trustees of Port of Kandla v. Hargovind Jasra (2013) 3 SCC 182 reiterated the necessity of an order of a competent Court or Tribunal before which the impugned order can be declared as null and void. The Court relied on the oft-quoted passage in Smith v. East Elloe Rural District Council 1956 AC 736: (1956) 2 WLR 888, which reads as under:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">“…An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.’ (Smith Case, AC pp.769-70)</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">This must be equally true even where the brand of invalidity is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed out(sic) repeatedly in the House of Lords and Privy council without distinction between patent and latent defects (Ed. Wade and Forsyth in Administrative Law, 7th Edn.1994.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">In&nbsp; the&nbsp; &nbsp;case&nbsp; &nbsp;of Pune&nbsp; &nbsp;Municipal Corporation v. State of Maharashtra (2007) 5 SCC 211, this court reproduced the following observations with regard to the declaration of orders beyond the period of limitation as invalid:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br>“39. Setting aside the decree passed by all the courts and referring to several cases, this Court held that if the party aggrieved by invalidity of the order intends to approach the court for declaration that the order against him was inoperative, he must come before the court within the period prescribed by limitation. ‘If the statutory time of limitation expires, the Court cannot give the declaration sought for’.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">We are in respectful agreement with the aforesaid observations. It is, however, necessary to add that where limitation is not prescribed, the party ought to approach the competent Court or authority within reasonable time, beyond which no relief can be granted. As decided earlier, this principle would apply even to suo motu actions.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br>20. Applying the aforesaid legal position to the facts of the instant case, we are of the considered view that the proceedings initiated by the appellant along with sixth respondent in the year 2015 were not maintainable on account of long, unreasonable and inordinate delay&nbsp; and lapse of time and that the same were initiated after an unreasonably long period of thirty years after the PTCL Act came into force and about fifty years from the date of alienation.</span></div><i><div style=\"text-align: justify;\"><i style=\"font-size: 0.875rem;\"><b><br>Compiled by S. Basavaraj, Daksha Legal.</b></i></div></i></p>', 'e711e82f3e0ccf17b0980549e898d8b4.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-06', 1, '', '', '2020-12-13 19:27:06', '2020-12-29 17:47:04'),
(259, 'NE07HynCfzPiR4fMF9YGwtq4V', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Technical objection which defeats justice should be discouraged. If infraction of procedural provision does not provide for any consequences such a provision has to be construed as directory and not mandatory.', '<h4></h4><p style=\"text-align: left;\"><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Technical objection which defeats justice should be discouraged. If infraction of procedural provision does not provide for any consequences, such a provision has to be construed as directory and not mandatory.</b></div><b><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Pr. Commissioner of Income Tax and another vs M/s. Wipro Limited.</span></div> </span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Income Tax Appeal 462/2017 decided on 30 November 2020.</span></div></span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Justice Alok Aradhe and Justice H.T. Narendra Prasad</span></div></span></b><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br>Judgment Link:</b></span></div></span><div style=\"text-align: justify;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/351234/1/ITA462-17-30-11-2020.pdf\" target=\"_blank\" style=\"background-color: rgb(255, 255, 255); font-size: 0.875rem;\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/351234/1/ITA462-17-30-11-2020.pdf</a><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/351234/1/ITA462-17-30-11-2020.pdf\" target=\"_blank\"><br></a></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b><br>Relevant paragraphs:</b> <br><br>6. The constitution bench of the Supreme Court in SARDAR AMRJIT&nbsp; SING&nbsp; KALARA&nbsp; VS.&nbsp; PRAMOD GUPTA, (2003) 3 SCC 272 has held&nbsp; that&nbsp; procedural laws have always been viewed as handmaid of justice and not to hamper the cause of justice. It has further been held that technical objection which tend to be stumbling blocks to defeat and delay substantial and effective justice should be viewed strictly for being discouraged except when mandate of law inevitably necessitates it. (ALSO SEE: SAMBHAJI VS. GANGABAI, (2008) 17 SCC 117, RAJENDRA PRASAD GUPTA VS. PRAKASH CHANDRA MISHRA (2011) 11 SCALE 469 and RAMJI GUPTA AND ORS. VS. GOPI KRISHAN AGRAWAL (D) AND ORS. AIR 2013 SC 3099). In STATE OF BIHAR AND ORS. VS. BIHAR&nbsp; &nbsp;RAJYA&nbsp; &nbsp;BHOOMI&nbsp; &nbsp;VIKAS&nbsp; &nbsp;BANK SAMITHI, (2018) 9 SCC 472, it has been held that if infraction of procedural provision does not provide for any consequences, such a provision has to be construed as directory.</span></div><i><div style=\"text-align: justify;\"><i style=\"font-size: 0.875rem;\"><b><br>Compiled by S. Basavaraj and Kriti Taggarse Daksha Legal</b></i></div></i></p><p style=\"text-align: justify;\"><br></p>', '2e99b68f011bd376ccefd511312fd9f8.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-30', 1, '', '', '2020-12-13 19:36:16', '2020-12-29 17:43:45'),
(260, 'Xx83Ieah52chjiHfrrunKS93L', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Defamation. Statement made in open court during evidence amounts to publication ', '<h4></h4><p style=\"text-align: center;\"></p><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Defamation. Statement made in open court during evidence amounts to ‘publication’ unless it is an in-camera proceeding. Karnataka High Court.</b></div><b><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Mauna vs K.G.Mahesh Murthy.</span></div> </span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Criminal Petition 101295/2017 decided on 26 November 2020.</span></div> </span></b><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Dr. Justice H.B. Prabhakara Sastry</b></span></div></span><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem; color: rgb(0, 0, 0);\"><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/351182/1/CRLP101295-17-26-11-2020.pdf\" target=\"_blank\">Relevant paragraphs:&nbsp;</a></b></div><span style=\"font-size: 1.3125rem;\"><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">It is …the case of the complainant in the trial Court that the petitioner herein in her cross- examination in the complaint filed by her under D.V.&nbsp; Act, made a statement that her father through her friends secured liquor for the consumption of the complainant, the present respondent. She admitted that Ex.P.68 is with respect to purchase made in a Military Canteen.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br>10. Admittedly in the instant case, the present petitioner as accused in the trial Court has made a statement. Though the learned counsel submits that the said statement does not amount to publication, but, without much discussion on that, it can be held that when it is a Court proceeding and there is nothing on record to show that it was an in-camera proceeding where none else except the party making statement, the Presiding Officer and the learned counsels were there, it cannot be said that there was no publication of the said statement.</span></div></span><div style=\"text-align: justify;\"><i style=\"font-size: 0.875rem;\"><b><br>Compiled by S. Basavaraj and Kriti Taggarse Daksha Legal.</b></i></div><p></p><h4> </h4>', '5371b0362f2ecad7b9fd4b3715139877.jpeg', '3ea9f26f8dfacfb5d77544dba70caffe.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-26', 1, '', '', '2020-12-13 20:58:14', '2022-06-11 03:26:55'),
(262, 'LOb8I4qCjvnSgPAlXVpAEuluJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'NDPS Act. Prosecution’s complaint failing to connect accused with seized material. Valid ground to grant bail to the accused.', '<h4></h4><p style=\"text-align: left;\"></p><p><span style=\"font-size: 1.3125rem;\"><b>NDPS Act. Prosecution’s complaint failing to connect accused with seized material. Valid ground to grant bail to the accused. Karnataka High Court.<br></b></span><b><span style=\"font-size: 1.3125rem;\">Irfan Ali vs The State of Karnataka.<br></span><span style=\"font-size: 1.3125rem;\">Criminal Petition 101431/2020 decided on 8 December 2020.<br></span><span style=\"font-size: 1.3125rem;\">Justice Mohammed Nawaz</span></b></p><span style=\"font-size: 1.3125rem;\"><b><br>Judgment Link:</b><br> </span><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352702/1/CRLP101431-20-08-12-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352702/1/CRLP101431-20-08-12-2020.pdf<br></a><b><br>Relevant paragraphs:</b> <br><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">6. The learned counsel for petitioner has relied on a decision of this Court rendered in Criminal Petition No.1142/1991, in the case of Shankar Krishnasa Habib and Another Vs. State of Karnataka, decided on 16.09.1991. Relevant portion of para 11 of the said decision is extracted hereunder:</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">“11. ….. There is no explanation in the complaint or from the statements of other witnesses whether the house which was raided by the police on the date in question consisted of only these two persons or also the other members of the family. When&nbsp; prosecution says that the ganja was seized from the house of the petitioners, it could also have explained that who were in possession of ganja, whether these two petitioners or other persons who were staying in the house. Since all these questions are of doubtful in nature and whose correctness or veracity can be ascertained only when regular evidence is led in, I think this Court can hold at this stage what prosecution has not made out a case so as to connect the petitioners that they were in exclusive possession of ganja seized on 31.07.1991. Hence, the first ingredient of Section 30(b)(c) has been explained.”</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">7. The facts of the case in the above decision has some similarity to the facts of the present case. Bail granted.</span></div><i><b><br>Compiled by S. Basavaraj. Daksha Legal.</b></i><p></p>', '2906e9b8d279dc85f571d5bcd7d88599.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-08', 1, '', '', '2020-12-14 23:40:58', '2020-12-29 17:39:54'),
(263, 'C16w9m6iE6J0BBcUuy87Ae9xP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'N.I.Act. Cheque issued to managing partner of partnership firm. Complaint filed in the name of partnership firm not maintainable. Karnataka High Court. ', '<p style=\"text-align: left;\"><b>Srinidhi Finance and Investment Corporation vs Basavanthappa.<br></b></p><p style=\"text-align: left;\"><b><br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Criminal Appeal 2828/2011 decided on 23 November 2020.</b></p><p style=\"text-align: left;\"><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; text-size-adjust: 100%;\">Justice Pradeep Singh Yerur. </b></p><p style=\"text-align: left;\"><br>21 & 22 In the present case, cheque has been issued by the accused in the name of Siddalingappa Tippanna Satyappanavar, who is ‘payee’. Holder in due course of the cheque is none other than the ‘payee’- Siddalingappa Tippanna Satyappanavar.<br><br>24. Proviso (b) to Section 138 of NI Act states that ‘the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque (within thirty days), of the receipt of information by him from the bank regarding the return of the cheque as unpaid.’<br><br>27. As noticed in Ex.P.1 and in Ex.P.3 and in the complaint filed by the complainant, it is not in dispute that the payee and holder in due course of the cheque is one Sri. Siddalingappa Tippanna Satyappanavar. The legal notice got issued by complainant-Ex.P.3 is not by the payee or holder in due course but by the complainant-Partnership Firm. The complaint filed before the learned Magistrate is also not by the payee or holder in due course but by the partnership firm M/s. Srinidhi Finance and Investment Corporation, Gadag, by its Managing Partner Sri. Siddalingappa Tippanna Satyappanavar. As stated earlier Section 142(1)(a) clearly states that no Court shall take cognizance of any offence punishable under Section 138 of NI Act, except on a complaint, in writing made by the ‘payee’ or, as the case  may be, the holder in due course of the cheque. At the cost of repetition, it is seen that the payee and holder in due course of the cheque is not the complainant in the present case. Therefore, the primary mandatory requirement of Section 138 of NI Act, has not been fulfilled by the complainant herein. Therefore, the initiation of the complaint itself is not in accordance with law.<br><br>34. Admittedly, in the present case, cheque has not been issued in the name of partnership firm. It is also  not the case of the complainant that it is a proprietary firm which stands on different footing. Therefore, it is clearly, evident from the factual aspect that the complainant firm is not the payee or the holder in due course.<br></p><p style=\"text-align: left;\">Appeal dismissed.</p>', '4faa1674b5029e27c082bc461fb057c4.JPG', '2240b96e2a5f862d183a734303839162.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-14', 1, '', '', '2020-12-15 03:01:19', '2023-01-14 14:31:26'),
(2566, 'tFto4kVLCbXZauyiqyW2mp4Lc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Income Tax Act. Section 158BFA(1) and Section 140A operate independently and the liability to pay interest does not stop merely on filing of the return but is attracted in terms of Section 140A till payment of tax. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K.L. Swamy Vs The Commissioner of Income Tax and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3704 of 2012 decided on 13 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. In all these appeals, the dispute is with respect to levy of interest under Section 158BFA(1) of the Income Tax Act in respect of assessment completed under Section 158BD of the Act for belatedly filing the return of income for the block period and also the levy of surcharge under Section 113 of the Income Tax Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. The facts leading to the present appeal in nut­shell are as under :</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4.1 That the appellant is an individual and Director Partner in Khoday Group of Company concerns. A search under Section 132 was conducted in the residential premises of the family members of Khoday Group and the warrant was issued in the name of M/s. Khoday India Limited. The appellant was served with the notice under Section 158BD to file the return of income for the block period of 01.04.1986 to 13.02.1997. The appellant filed return for the block period in response to notice under Section 158BD by including the undisclosed income of Rs.45,00,000/­ for the block period. The Assessing Officer levied interest under Section 158BFA(1) for the period from 18.01.1998 to 19.01.1999 at the rate of 2% per month for 13 months and levied interest of Rs.7,12,296/­ on the tax amount of Rs.27,49,600/­. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4.2 The appellant being aggrieved by the order of the Assessing Officer filed an appeal before the learned CIT (A). It was the case on behalf of assessee that levy of interest under Section 158BFA(1) was not justified. The learned CIT (A) held that Section 158BFA provides for levy of interest for late filing of return of block assessment in response to the notice under Section 158BC similar to the provisions of Section 234A. The CIT(A) also held that levy of interest under Section 234A is compensatory in nature and is attracted the moment there is a default. The appellant – assessee being aggrieved by the order of CIT(A) filed an appeal before the ITAT, Bangalore. Before the ITAT, it was contended on behalf of assessee that provisions of Section 158BFA(1), the levy of interest would be attracted only in a case where there was a failure or delay in filing the return in response to notice under Section 158BC. It was contended that in absence of any notice under Section 158BC, the Assessing Officer was not justified in levying interest. It was also contended that in Section 158BD after the words “that Assessing Officer shall proceed” the words “under Section 158BC” was inserted w.e.f. 01.06.2002 by the Finance Act, 2002. It was contended that the amendment was specifically brought to cure the anomaly and the fact that it has been made prospective w.e.f. 01.06.2002 and therefore, the interest cannot be validly levied under Section 158BFA(1) in a case where notice under Section 158BD was issued prior to 31.05.2002 and in the present case the notice was issued on 28.11.1997. The learned ITAT allowed the appeal preferred by the assessee by observing that Section 158BFA(1) inserted w.e.f. 01.01.1997, prescribes levy of interest and never require to pay the self­assessment tax due along with the return of income. Interest is leviable on undisclosed income determined with the assessment. It was observed that 140A requiring to pay self­assessment tax along with the return of income filed under Section 158BC(a) was amended w.e.f. 01.06.1999 only. It was observed that in the present case the return was filed on 19.01.1999 and at the relevant point of time there was no provision to pay selfassessment tax along with the return of income and therefore no interest was leviable under Section 158BFA(1).</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4.3 The revenue being aggrieved by the order passed by the ITAT, filed an appeal before the High Court being ITA No.277 of 2004. By the impugned judgment and order, the High Court has reversed the decision of the ITAT. The High Court has observed that the amendment to Section 140A is of no consequence so far as determination of interest under Section 158BFA(1) is concerned. The High Court negatived the submission on behalf of the assessee that in absence of any specific notice under Section 158BC, there shall not be any levy of interest under Section 158BFA(1) on the submission that prior to the amendment by including Section 158BC within the scope of Section 158BD by Finance Act, 2002 w.e.f. 01.06.2002. So far as a notice under Section 158BD, provision of Section 158BFA(1) was not attracted. The High Court has observed and held that levy of provisions of Section 158BD prior to the amendment in terms of Finance Act, 2002 i.e. before adding the words “under Section 158BC”, section itself indicates the procedure that was required to be followed by the Assessing Officer, is only in terms of the very provisions of Chapter XIV­B of the Act and therefore Section 158BC as well as 158BFA(1) are even otherwise attracted and just because the Legislature thought it fit to add or to mention Section 158BC by way of amendment through Finance Act, 2002, it would not make any difference to the earlier provision of Section 158BD which even otherwise envisages within itself the provisions and applicability of Section 158BD and 158BFA(1). Consequently, the High Court has answered the questions of law in favour of the revenue and against the assessee and consequently allowed the said appeal</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. Heard the learned counsels appearing on behalf of the respective parties at length. The questions of law posed for the consideration of this Court in the present appeals are: (i) levy of interest under Section 158BFA(1) of the Income Tax Act for late filing of the return for the block period in absence of any notice under Section 158BC of the Act and for the period prior to 01.06.1999? and (ii) the levy of the surcharge under proviso to Section 113 of the Income Tax Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9.2 In view of the above, the question of law with respect to levy of the surcharge under proviso to Section 113 of the Income Tax is held in favour of the assessee and against the revenue. It is observed and held that in the present case the assessee is not liable to pay the surcharge under proviso to Section 113 of the Income Tax Act. To that extent the impugned judgment and order passed by the High Court and the assessment order qua the surcharge under proviso to Section 113 of the Income Tax Act deserves to be quashed and set aside.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11 In view of the above and for the reasons stated above, the present appeals succeed in part. It is observed and held that the respective assessees are not liable to pay the surcharge under proviso to Section 113 of the Income Tax Act. The impugned judgment and order passed by the High Court is required to be modified to the aforesaid extent. So far as the liability to pay the interest under Section 158BFA of the Income Tax Act for late filing of the return under Section 158BC of the Income Tax Act, in absence of any notice under Section 158BC upon the assessee – persons other than searched persons, the said question is held in favour of the revenue and against the assessee. The impugned judgment and order passed by the High Court is hereby confirmed and it is observed and held that the assessee – persons other than searched persons shall be liable to pay the interest on late filing of the return under Section 158BC even in absence of a notice under Section 158BC of the Income Tax Act and even for the period prior to 01.06.1999. To that extent, the impugned judgment and order passed by the High Court is hereby confirmed. Present appeals are accordingly disposed of in terms of the above. There shall be no orders as to costs. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9f0341a489c79b742962cfa81b1b9970.jpeg', 'e3177eb4463e7cd875ca468d41d6f361.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-16', 1, '', '', '2023-01-15 18:36:13', '2023-01-16 04:58:23'),
(264, '9sgY6Zney0yiBfoYRtiQl5uQr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court upholds validity of Sub-section 4 of Section 8 of the Prevention of Money Laundering Act 2002.', '<p style=\"text-align: center; \"><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem; text-align: left;\">Dyani Antony Paul and others vs Union of India and another. Writ Petition 38642/2016 and connected matters decided on 11 December 2020.</b></div><b><br><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Judgment link:&nbsp;</b></div></b><div style=\"text-align: justify;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352800/1/WP38642-16-11-12-2020.pdf\" target=\"_blank\" style=\"background-color: rgb(255, 255, 255); font-size: 0.875rem;\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352800/1/WP38642-16-11-12-2020.pdf</a><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352800/1/WP38642-16-11-12-2020.pdf\" target=\"_blank\"><br></a></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Section 8(4) Where the provisional order of attachment made under sub-section (1) of Section 5 has been confirmed under sub-section (3), the Director or any other officer authorised by him in this behalf shall forthwith take the possession of the property attached under Section 5 or frozen under sub-section (1-A) of Section 17, in such manner as may be prescribed:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Provided that if it is not practicable to take possession of a property frozen under sub-section (1-A) of Section 17, the order of confiscation shall have the same effect as if the property had been taken possession of.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br><b>Relevant paragraphs: </b><br><br>30. Having heard the learned Advocates appearing for parties, I am of the considered view that following points would arise for my consideration:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(i) Whether sub-section (4) of Section 8 of PML Act is violative of Article 14 and Article 300A of the Constitution of India and as such proceedings initiated against petitioners under PML Act are liable to be quashed?</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(ii) Whether the proceedings initiated under the PML Act by the authorities would be bad in law or without jurisdiction for want of existence of predicate offence or offence prescribed under the Schedule to the PML Act not being in existence on the date of initiation of proceedings under PML Act? OR Whether the offence of money laundering under Section 3 of PML Act is a stand alone offence?</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(iii) Whether the proceedings initiated by the authorities under PML Act and passing orders of provisional attachment and its confirmation thereof is liable to be set aside or quashed on account of any procedural lapse prescribed under Sections 5 and 8 of PML Act?</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(iv) Whether the notice/s issued by the authorities to take possession of the property on provisional order of attachment being confirmed is liable to be set aside?</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(v) Whether writ petitions are liable to be dismissed on the ground of petitioners having not availed the alternate remedy of appeal available under Section 25 and under Section 42 of PML Act?</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br>42. A construction which reduces the statute to a futility has to be avoided. The principle expressed in the maxim ut res magis valeat quam pereat i.e., liberal construction should be put upon written instruments so as to uphold them, if possible and carry into effect the intention&nbsp; of&nbsp; parties&nbsp; has&nbsp; to&nbsp; be&nbsp; adopted.&nbsp; (See&nbsp; Broom’s&nbsp; Legal Maxims 10th Edition, page 361, Craies on Statutes (7th edition), page 95 and Maxwell on Statutes (11th edition) page 221. ) A statute or a provision in any enactment must be so construed to make it effective and operative. The Hon’ble&nbsp; Apex&nbsp; Court&nbsp; in&nbsp; the&nbsp; case&nbsp; of&nbsp; CIT&nbsp; vs&nbsp; S.TEJA&nbsp; SINGH reported in AIR 1959 SC 352, have held that a statute is designed to be workable and interpretation thereof by a court should be to secure that object unless crucial omission or clear direction makes that end unattainable. It has been further held that courts will have to reject that construction which will defeat the plain intention of the legislature, even though there may be some inexactitude in the language used in the enactment.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br>44. Time&nbsp; and&nbsp; again,&nbsp; Hon’ble&nbsp; Apex&nbsp; Court&nbsp; in&nbsp; catena of judgments has held that whenever it is possible to do so, it must be done to construe the provisions which appear to conflict so that they harmonise. The court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br>54. Section 8 as amended by the Amendment&nbsp; Act&nbsp; 2 of 2013 cannot be said to be arbitrary or violative of fundamental right of a person, even if the proceedings are continued for trial of scheduled offence resulting in acquittal and the alleged proceeds of crime pertained to that scheduled crime. It is to be further noticed that mandate of sub-section (4) of Section 8 to the authorities is to take possession of the property forthwith which is attached under Section 5 or frozen under sub-section (1-A) of Section 17 on the provisional order of attachment made under sub-section (1) of Section 5 has been confirmed&nbsp; under sub-section (3). The authorities have no discretion at all and they are bound to take possession and the expression “possession” referred to in sub-section (4) refers to&nbsp; &nbsp; physical&nbsp; &nbsp; possession.&nbsp; The judgment of the KAMARUNNISA’s&nbsp; &nbsp;case&nbsp; &nbsp;relied&nbsp; &nbsp; upon&nbsp; &nbsp;by&nbsp; &nbsp;petitioners&nbsp; &nbsp;was rendered on 11.07.2012 i.e., pre 2013 amendment i.e., prior to Act 2 of 2013 coming into force. The amendment which was brought to sub-section (4) of Section 8 namely, the expression “possession of the property attached under Section 5 or frozen under sub-section (1-A) of Section 17 in such manner as may be prescribed”&nbsp; was not found in sub-section (4) as it stood in the year 2009. Hence, the judgment of KAMARUNNISA would not come to rescue of the petitioners.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br>82. In the light of aforestated&nbsp; analysis,&nbsp; this Court is of the considered view that existence of a predicate offence for initiation of proceedings under the PML Act is not a condition precedent or in other words, the offence under Section 3 of the PML Act is a stand alone offence. Hence, the presence of a schedule offence as prescribed under the PML Act would not be condition precedent for proceeding against such person under the PML Act.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br>99. The expression “proceeds of crime” covers any property derived or obtained directly or indirectly by any person, as a result of criminal activity, related to a scheduled offence or the value of such property. The expression ‘property’ is elucidated in Clause (v) of Section 2, as any property or assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible and includes deeds and instruments evidencing title to, or interest in, such property or assets, wherever located. Section 2(u), therefore, does&nbsp; not&nbsp; envisage&nbsp; either mens rea or knowledge that the property acquired is a result of criminal activity.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br>107. Hence, this Court is of the considered view that contentions raised by the petitioners to quash the proceedings on the ground of the proceedings initiated against them is without jurisdiction for want of either there being no predicate offence or on the date of launch of proceedings under the PML Act, the predicate offence referred to in the schedule was not incorporated in the schedule and as such, there would be retrospective application of law cannot be accepted, inasmuch as, the offence of money laundering as indicated under&nbsp; Section 3 of PML Act is a stand-alone offence. It is to be further noticed that the proceedings initiated by the authorities by passing an order of provisional attachment and its confirmation thereof would not fail or lapse on account of any procedural irregularity for the reasons indicated herein above.</span></div><i><div style=\"text-align: justify;\"><i style=\"font-size: 0.875rem;\"><b><br>Compiled by S. Basavaraj Daksha Legal.</b></i></div></i></p><h4><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352800/1/WP38642-16-11-12-2020.pdf\" target=\"_blank\"></a></h4>', 'd4cefe82633ad3bde900552f905e2186.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-11', 1, '', '', '2020-12-15 03:06:02', '2020-12-29 17:33:16');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(265, 'x4EF2FtBXPNs9LDw3k4rxenDE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Education. Admission to Government seats in professional colleges. Persons of Indian Origin and Overseas Citizen of India cannot be treated as Non Resident Indian. ', '<p><b>Pranav Bajpe and others vs The State of Karnataka and others. Writ Petition 27761/2019 and connected matters decided on 9 December 2020.</b><br><br><b>Judgment Link: </b><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352798/1/WP27761-19-09-12-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352798/1/WP27761-19-09-12-2020.pdf<br></a><br><b>Relevant paragraphs: </b><br><br></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Challenge is to Rule 5 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institutions Rules, 2006 made under The Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 and Section 2(1)(n) of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 insofar as it inserts the words ‘and includes persons of Indian origin and overseas citizen of India’ in the definition of “Non-resident Indian” as being repugnant to the provisions of the Citizenship Act, 1955.</span></div><br><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">16.</b><span style=\"font-size: 0.875rem;\"> Single Judge (Justice Krishna Dixit) conclusions:</span></div><div style=\"text-align: justify;\"><b style=\"font-weight: bold; font-size: 0.875rem;\">(i) </b><span style=\"font-size: 0.875rem;\">On the question whether the definition of Non- Resident Indian under Section 2(1)(n) of 2006 Act is repugnant to 2009 Notification of Central Government, learned Single Judge considered the definition of Non- Resident Indian under Section 2(1)(n) of 2006 Act in light of Central Government Notification dated 05/01/2009 and the earlier Notification dated 11/04/2005 and held that a OCI Cardholder cannot be equated to a Non-Resident Indian in the matter of admission to professional colleges by an interpretation of the aforesaid two Notifications.</span></div><div style=\"text-align: justify;\"><b style=\"font-weight: bold; font-size: 0.875rem;\">(ii) </b><span style=\"font-size: 0.875rem;\">On the question whether impugned Section 2(1)(n) of 2006 Act is unconstitutional because of lack of legislative competence of the State Legislature, the&nbsp; learned Single Judge analysed Section 7A and 7B of the Citizenship Act and held that the he Notification of 2005 and 2009 impugned Section 2(1)(n) and 2(1)(l) of 2006 Act and Rule 5 of 2006 Rules and therefore were not enforceable.</span></div><div style=\"text-align: justify;\"><b style=\"font-weight: bold; font-size: 0.875rem;\">(iii) </b><span style=\"font-size: 0.875rem;\">Section 7B(1) of Citizenship Act deals with OCI card holders who are not citizens of India. That Section 7B(1) of the Citizenship Act delegates power for issuance of Notifications granting rights to OCI card holders. That the said legislation is traceable to Entry-17 of List-I of VII Schedule of the Constitution which deals with “Citizenship, Naturalization and Aliens”. Therefore, on the strength of the said entry in List-I, the Central Government is empowered to grant various rights to OCI card holders including educational rights. When such rights are granted in the matter of education to OCI card holders, the State Legislature has no competence to legislate on the specific educational rights granted by the Central Government by a Notification issued under Section 7B of Citizenship Act. Therefore, any amendment made to the Karnataka Act and Rules restricting the rights granted to the OCI card holders in the matter of education would be repugnant as the doctrine of ‘occupied field’ would apply under Article 254 of the Constitution.</span></div><div style=\"text-align: justify;\"><b style=\"font-weight: bold; font-size: 0.875rem;\">(iv)</b><span style=\"font-weight: 400; font-size: 0.875rem;\"> </span><span style=\"font-size: 0.875rem;\">On the question whether Rule 5 of 2006 Rules prescribing ‘citizenship’ as a condition for availing Government seats is unenforceable against OCI card holder is concerned, the learned Single Judge referred to Rule 5 of 2006 Rules which prescribes that Indian Citizenship is a sine qua non for any student to lay claim for ‘Government Seats’ which is defined under Rule 2(1)(l) of 2006 Rules, would mean that the rights granted under 2009 Notification under Section 7B(1) of the Citizenship Act would be defeated.</span></div><div style=\"text-align: justify;\"><b style=\"font-weight: bold; font-size: 0.875rem;\">(v)</b><span style=\"font-weight: 400; font-size: 0.875rem;\"> </span><span style=\"font-size: 0.875rem;\">Also, the rights that are available under 2005 Notification and further under 2009 Notification issued by the Central Government under Section 7B(1) of Citizenship Act cannot be diminished or nullified by Rule 5 of the 2006 Rules. There is repugnance between Rule 5 of 2006 Rules with the Notifications of 2005 and 2009. Therefore, Rule 5 cannot be enforced against OCI cardholders, that it can be enforced against other foreigners who are not in any case, the petitioners. This is because Rule 5 of 2006 Rules is relatable to Entry 25 of List-III which deals with the subject-education which is in the Concurrent List and the principles of repugnancy under Article 254 of the Constitution would apply.</span></div><div style=\"text-align: justify;\"><b style=\"font-weight: bold; font-size: 0.875rem;\">(vi)</b><span style=\"font-size: 0.875rem;\"> On the question whether the OCI cardholders are Indian citizens, learned Single Judge held that they are all ‘foreigners’, to mean a person who is not a citizen of India, as per the definition under Section 2(a) of the Foreigners Act, 1946.</span></div><div style=\"text-align: justify;\"><b style=\"font-weight: bold; font-size: 0.875rem;\">(vii)</b><span style=\"font-weight: 400; font-size: 0.875rem;\"> </span><span style=\"font-size: 0.875rem;\">On the stand of the Central Government as to educational rights to OCI cardholders, reference was made to memo dated 18/03/2019, submitted on behalf of the Central Government and learned Single Judge observed that the said clarification is in conflict with the interpretation of Notification of 2005 and 2009. That on the one hand, the Notification of Central Government granting educational rights to OCI cardholders and the conference of such rights, cannot be made illusory by the State enactment or Rule. The State law cannot take away the rights granted by the Central Government to the OCI cardholders under Section 7B of the Citizenship Act through the Notification of 2005 and 2009. According to the learned Single Judge, the expression “in pursuance of the provisions contained in the relevant Acts” in paragraph “b” of the 2009 Notification cannot be construed to mean State law which has the effect of curtailing the effect of the rights granted to the OCI cardholders by the Central Government.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><b style=\"font-weight: bold; font-size: 0.875rem;\">49. </b><span style=\"font-weight: 400; font-size: 0.875rem;\">T</span><span style=\"font-size: 0.875rem;\">he Notifications issued by the Central Government under Section 7B of the Citizenship Act, is a statute enacted by the Parliament, while the State law is under Entry 25 of List III of the Concurrent List, which deals on the subject ‘education’.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br><b>60.</b> In view of the aforesaid discussion, the expression “citizen” in Rule 5 of 2006 Rules and the expression “Non-Resident Indian” to include OCI cardholders under 2006 Act, both of the State Government, in juxtaposition with Central Government Notifications of 11/04/2005 and 05/01/2009 in the matter of eligibility of OCI cardholders to appear for All-India Pre- Medical Test and to make them eligible for admission in pursuance of the provisions contained in relevant Acts (State Acts) i.e., Medical, Dental, Engineering and such other courses, would have to be considered.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b><br>71. </b>…The petitioners in the instant case are all OCI Cardholders who were minors at the time of filing the petitions. Such of those minor OCI Cardholders who are born subsequent to 10/12/1992 to either of whose parents who was a citizen of India at the time of their birth, are conferred citizenship of India by descent. This is evident on a&nbsp; reading&nbsp; of Section 4(1)(b) read with Section 4(1A) of the Citizenship Act, as a minor who is a citizen of India by virtue of Section 4(1)(b) by descent and is also a citizen of any other country, such as OCI Cardholder as per Section 7A(1)(c), shall cease to be a citizen of India if he either renounces his citizenship on attaining full age or even if he does not renounce his citizenship or nationality of another country within six months of attaining the full age. Therefore, the status of minor children of citizens of India is protected by an amendment made to Section 4 of the Citizenship Act by insertion of Section 4(1A).</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">HELD:</span><b style=\"font-size: 0.875rem;\"> (i)</b><span style=\"font-size: 0.875rem;\"> …Section 2(1)(n) of the Karnataka Professional Educational Institutions (Regulation of Admission &amp; Determination of Fee) Act, 2006, as amended by Karnataka Act No.22 of 2017, to the extent it includes the ‘Overseas Citizens of India’ or ‘Overseas Citizens of India Cardholders’ within the definition of “Non-resident Indian” is quashed;</span></div><div style=\"text-align: justify;\"><b style=\"font-weight: bold; font-size: 0.875rem;\">(ii) </b><span style=\"font-size: 0.875rem;\">The impugned Rule 5 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institution Rules, 2006, to the extent it prescribes Indian Citizenship, is interpreted so as to include within the scope of the expression ‘Citizen’,OCI Cardholders as per Section 4 of the Citizenship Act and as per Notification dated 05/01/2009 issued under Section 7B of the said Act;</span></div><div style=\"text-align: justify;\"><b style=\"font-weight: bold; font-size: 0.875rem;\">(iii)</b><span style=\"font-weight: 400; font-size: 0.875rem;\"> </span><span style=\"font-size: 0.875rem;\">The writ of Mandamus issued by the learned Single Judge directing the Respondent-State and the Respondent-Karnataka Examinations Authority to permit the petitioners (as per their choice) to register for CET-2019 as per the Notification dated 31/01/2019 issued by the Respondent-Karnataka Examinations Authority is confirmed. Further, the aforesaid Authority is directed to permit their participation in the ensuing counseling of CET- 2020 or subsequent years, for selection and allotment of seats in BE/B.Tech/B.Arch., or such other professional courses in&nbsp; Government Colleges, Private Aided/Un-aided Colleges/ educational institutions for the Academic Year 2019-2020 on the basis of their relative merit and ranking in the imminent CET-2020 or subsequent years;</span></div><div style=\"text-align: justify;\"><b style=\"font-weight: bold; font-size: 0.875rem;\">(iv)</b><span style=\"font-size: 0.875rem;\">Insofar as MBBS/BDS courses are concerned, NEET Scheme shall apply for the Academic Years 2019-</span><span style=\"font-size: 0.875rem;\">20 as well as 2020-21 and a writ of mandamus is issued directing the respondent-State and respondent-Karnataka Examinations Authority to permit the petitioners and similarly situate candidates i.e., OCI Cardholders to register and to participate in the ensuing counseling being held for selection and allotment of seats for the Academic Year 2020-21 and subsequent years, on the basis of their relative merit and ranking;</span></div><div style=\"text-align: justify;\"><b style=\"font-weight: bold; font-size: 0.875rem;\">(v)</b><span style=\"font-size: 0.875rem;\"> </span><span style=\"font-size: 0.875rem;\">The Respondent-Government and the Respondent- Karnataka Examinations Authority shall take all steps as are necessary to facilitate and effectuate the aforesaid directions, forthwith and without brooking any delay in the matter, keeping in view CET-2020 or subsequent years.</span></div><i><b><br>Compiled by S. Basavaraj Daksha Legal.</b></i><p></p>', '609bd0f650f742e67295fddce015ade3.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-09', 1, '', '', '2020-12-15 03:11:49', '2020-12-29 17:30:06'),
(266, 'mgkeSK8mByGJhPZJJmR97ZWz5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Wife who is protected under Domestic Violence Act cannot be evicted using Senior Citizens Act. Supreme Court ', '<p style=\"text-align: center; \"></p><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Wife who is protected under Protection of Women from Domestic Violence Act 2005 cannot be evicted using Maintenance and Welfare of Parents and Senior Citizens Act 2007. Supreme Court</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>Judgment Link:</b></span></div><p style=\"text-align: justify; \"><a href=\"https://main.sci.gov.in/supremecourt/2019/44892/44892_2019_36_1501_25104_Judgement_15-Dec-2020.pdf\" target=\"_blank\" style=\"font-size: 1.53125rem; background-color: rgb(255, 255, 255);\"><span style=\"font-size: 1.53125rem; background-color: rgb(255, 255, 255);\">https://main.sci.gov.in/supremecourt/2019/44892/44892_2019_36_1501_25104_Judgement_15-Dec-2020.pdf</span></a></p><p style=\"text-align: justify; font-size: 1.53125rem; background-color: rgb(255, 255, 255);\"><span style=\"font-size: 0.875rem;\">Held: Even otherwise, we are clearly of the view that recourse to procedure contemplated by the Senior Citizen Act 2007 was not available for the purpose of facilitating strategies that are designed to defeat the claim of the appellant in respect of a shared household. A shared household would have to be interpreted to include the residence where the appellant had been jointly residing with her husband. Merely because the ownership of the property has been subsequently transferred to her in-laws (Second and Third Respondents) or that her estranged spouse (Fourth respondent) is now residing separately, is no ground to deprive the appellant of the protection that was envisaged under the PWDV Act 2005 the summary For the above reasons, we have come to the conclusion that the claim of the appellant that the premises constitute a shared household within the meaning of the PWDV Act 2005 would have to be determined by the appropriate forum. The claim cannot simply be obviated by evicting the appellant in exercise of the summary powers entrusted by the Senior Citizens Act 2007. The Second and Third Respondents are at liberty to make a subsequent application under Section 10 of the Senior Citizens Act 2007 for alteration of the maintenance allowance, before the appropriate forum. For the above reasons, while allowing the appeal, we issue the following directions: (i) The impugned judgment and order of the Division Bench of the High Court of Karnataka dated 17 September 2019 affirming the order of PART F 34 eviction against the appellant shall stand set aside with the consequence that the order of the Assistant Commissioner ordering and directing the appellant to vacate the suit premises shall stand set aside; (ii) We leave it open to the appellant to pursue her remedies under the PWDV Act 2005. For that purpose, it would be open to the appellant to seek the help of the District Legal Services Authorities and if the appellant does so, all necessary aid and assistance shall be furnished to her in pursuing her legal remedies and rights; (iii) IA 111352/2020 for restoration of the electricity connection is allowed by directing the Fourth respondent to take all necessary steps for restoration of the electricity connection to the premises within a period of two weeks from the receipt of a certified copy of this judgment. The Fourth respondent shall also continue to pay the electricity dues in future; and (iv) In order to enable the appellant to pursue her remedies under the PWDV Act 2005, there shall be an order and direction restraining the respondents from forcibly dispossessing the appellant, disposing of the premises or from creating any right, title and interest in favor of any third party in any manner whatsoever for a period of one year, to enable the appellant to pursue her remedies in accordance with law. The appellant is at liberty to move the Court to espouse her remedies PART F 35 under the PWDV Act 2005 for appropriate orders, including interim protections.</span></p><p></p><p><br></p>', '5b484080dc6b33b79b7a76649463c7e8.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-15', 1, '', '', '2020-12-16 03:04:45', '2020-12-29 17:20:00'),
(267, 'f41rl1OAp1p94zmxAJ5UnOzbt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Dispute between landlord and tenant can be referred to arbitration unless the issue is governed by rent control laws. ', '<h3><a href=\"https://main.sci.gov.in/supremecourt/2018/26779/26779_2018_32_1501_25180_Judgement_14-Dec-2020.pdf\" target=\"_blank\"><b>https://main.sci.gov.in/supremecourt/2018/26779/26779_2018_32_1501_25180_Judgement_14-Dec-2020.pdf</b></a></h3><h3><a href=\"https://main.sci.gov.in/supremecourt/2018/26779/26779_2018_32_1501_25180_Judgement_14-Dec-2020.pdf\" target=\"_blank\"><b><br></b></a></h3><p><br></p>', '72753c892482e9161bade558750bb2b1.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-14', 1, '', '', '2020-12-16 03:22:31', '2020-12-16 03:22:54'),
(268, 'uuhMI7G2fI9Bvl4XqaPTJgdzq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration. Court cannot act upon an arbitration clause if the document is not properly stamped till deficit and penalty is paid.', '<p><b>Dharmaratnakara Rai Bahadur Arcot Narainswamy Mudaliar Chattram v. Bhaskar Raju &amp; Bros., (2020) 4 SCC 612.<br><br>Judgment Link: <br><a href=\"https://main.sci.gov.in/supremecourt/2018/12561/12561_2018_Judgement_10-Apr-2019.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/12561/12561_2018_Judgement_10-Apr-2019.pdf<br></a></b><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>Paragraphs: </b><br><br>16. Admittedly, both the lease deeds are neither registered nor sufficiently stamped as required under the Karnataka Stamp Act, 1957. Admittedly, the Registrar (Judicial) of the High Court of Karnataka had submitted a report to the High Court pointing out, that the document of 1997 executed/entered into between the parties was a lease deed and not an agreement to lease and passed an order directing Respondents 1 and 2 to pay deficit stamp duty and penalty of Rs 1,01,56,388 (Rupees one crore one lakh fifty-six thousand three hundred and eighty-eight only). It is also an admitted fact, that Respondents 1 and 2 have not complied with the said directions and have not paid the deficit stamp duty and penalty. In this background, a question that would arise for consideration is, as to whether Clause 36 in the lease deed dated 12-3-1997 could be acted upon to enforce the arbitration clause contained therein.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">17. The issue is no longer res integra. This Court in SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. (P) Ltd.3 had occasion to consider the provisions which are in pari materia with the provisions of the Karnataka Stamp Act, 1957. The relevant paragraphs are as under: (SCC pp. 73-74, paras 17-21)</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">“17. What if an arbitration agreement is contained in an unregistered (but compulsorily registerable) instrument which is not duly stamped? To find an answer, it may be necessary to refer to the provisions of the Stamp Act, 1899 (“the Stamp Act”, for short). Section 33 of the Stamp Act relates to examination and impounding of instruments. The relevant portion thereof is extracted below:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">‘33. Examination and impounding of instruments.—</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed:’</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">18. Section 35 of the Stamp Act provides that instruments not duly stamped are inadmissible in evidence and cannot be acted upon. The relevant portion of the said section is extracted below:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">‘35. Instruments not duly stamped inadmissible in evidence, etc.—No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Provided that—</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(a) any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;’</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">19. Having regard to Section 35 of the Stamp Act, unless the stamp duty and penalty due in respect of the instrument is paid, the court cannot act upon the instrument, which means that it cannot act upon the arbitration agreement also which is part of the instrument. Section 35 of the Stamp Act is distinct and different from Section 49 of the Registration Act in regard to an unregistered document. Section 35 of the Stamp Act, does not contain a proviso like Section 49 of the Registration Act enabling the instrument to be used to establish a collateral transaction.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">20. The Scheme for Appointment of Arbitrators by the Chief Justice of Gauhati High Court, 1996 requires an application under Section 11 of the Act to be accompanied by the original arbitration agreement or a duly certified copy thereof. In fact, such a requirement is found in the scheme/rules of almost all the High Courts. If what is produced is a certified copy of the agreement/contract/instrument containing the arbitration clause, it should disclose the stamp duty that has been paid on the original. Section 33 casts a duty upon every court, that is, a person having by law authority to receive evidence (as also every arbitrator who is a person having by consent of parties, authority to receive evidence) before whom an unregistered instrument chargeable with duty is produced, to examine the instrument in order to ascertain whether it is duly stamped. If the court comes to the conclusion that the instrument is not duly stamped, it has to impound the document and deal with it as per Section 38 of the Stamp Act.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">21. Therefore, when a lease deed or any other instrument is relied upon as contending the arbitration agreement, the court should consider at the outset, whether an objection in that behalf is raised or not, whether the document is properly stamped. If it comes to the conclusion that it is not properly stamped, it should be impounded and dealt with in the manner specified in Section 38 of the Stamp Act. The court cannot act upon such a document or the arbitration clause therein. But if the deficit duty and penalty is paid in the manner set out in Section 35 or Section 40 of the Stamp Act, the document can be acted upon or admitted in evidence.”</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">18. It can thus clearly be seen, that this Court has in unequivocal terms held, that when a lease deed or any other instrument is relied upon as containing the arbitration agreement, the court is required to consider at the outset, whether the document is properly stamped or not. It has been held, that even when an objection in that behalf is not raised, it is the duty of the court to consider the issue. It has further been held, that if the court comes to the conclusion, that the instrument is not properly stamped, it should be impounded and dealt with, in the manner specified in Section 38 of the Stamp Act, 1899. It has also been held, that the court cannot act upon such a document or the arbitration clause therein. However, if the deficit duty and penalty is paid in the manner set out in Section 35 or Section 40 of the Stamp Act, 1899, the document can be acted upon or admitted in evidence. It is needless to state, that the provisions that fell for consideration before this Court are analogous with the provisions of Sections 33 and 34 of the Karnataka Stamp Act, 1957. In this view of the matter, we are of the considered view, that in view of the law laid down in SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. (P) Ltd., (2011) 14 SCC 66, that the lease deed containing the arbitration clause which is required to be duly stamped, was not sufficiently stamped and though the Registrar (Judicial) had directed Respondents 1 and 2 to pay deficit stamp duty and penalty of Rs 1,01,56,388 (Rupees one crore one lakh fifty-six thousand three hundred and eighty-eight only), the respondents failed to do so, the High Court has erred in relying on the said lease dated 12-3-1997.</span></div></p><p><i><b>Compiled by S. Basavaraj, Daksha Legal.</b></i></p>', 'c40435b4a796ba106aee10ad6293b23b.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-16', 1, '', '', '2020-12-16 19:06:01', '2020-12-29 00:38:55'),
(269, 'JfX5xGPR3ZDXylSoTHOwdMg0d', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration agreement does not require registration under the Registration Act. It is an independent agreement to refer the disputes to arbitration which is independent of the main contract or instrument.', '<p><b>Garware Wall Ropes Ltd. v. Coastal Marine Constructions &amp; Engg. Ltd., (2019) 9 SCC 209</b></p><p><span style=\"font-weight: bold;\">Judgment Link:\r\n<br></span><a href=\"https://main.sci.gov.in/supremecourt/2018/12561/12561_2018_Judgement_10-Apr-2019.pdf\" target=\"_blank\">https://main.sci.gov/supremecourt/2018/12561/12561_2018_Judgement_10-Apr-2019.pdf</a><br></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Paragraph 15. In SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. (P) Ltd., (2011) 14 SCC 66, this Court was confronted with an arbitration clause, namely, Clause 35 of a lease deed dated 21-12-2006 for a term of 30 years in regard to two tea estates. The lease deed was neither stamped nor registered. </span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Para 9 of the judgment set out the questions that arose for </span>consideration as<span style=\"font-size: 0.875rem;\">&nbsp;follows: (SCC p. 71)<br></span>https://main.sci.gov/supremecourt/2018/12561/12561_2018_Judgement_10-Apr-2019.pdf&nbsp;</div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">“9. On the contentions urged the following questions arise for consideration:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(i) Whether an arbitration agreement contained in an unregistered (but compulsorily registerable) instrument is valid and enforceable?</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(ii) Whether an arbitration agreement in an unregistered instrument which is not duly stamped, is valid and enforceable?</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(iii) Whether there is an arbitration agreement between the appellant and the respondent and whether an arbitrator should be appointed?”</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">16. When it came to the question of an arbitration clause contained in an unregistered lease deed, this Court held: (SMS Tea Estates2, SCC pp. 72-73, paras 12-16)</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">12. When a contract contains an arbitration agreement, it is a collateral term relating to the resolution of disputes, unrelated to the performance of the contract. It is as if two contracts—one in regard to the substantive terms of the main contract and the other relating to resolution of disputes—had been rolled into one, for purposes of convenience. An arbitration clause is therefore an agreement independent of the other terms of the contract or the instrument. Resultantly, even if the contract or its performance is terminated or comes to an end on account of repudiation, frustration or breach of contract, the arbitration agreement would survive for the purpose of resolution of disputes arising under or in connection with the contract.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">13. Similarly, when an instrument or deed of transfer (or a document affecting immovable property) contains an arbitration agreement, it is a collateral term relating to resolution of disputes, unrelated to the transfer or transaction affecting the immovable property. It is as if two documents—one affecting the immovable property requiring registration and the other relating to resolution of disputes which is not compulsorily registerable—are rolled into a single instrument. Therefore, even if a deed of transfer of immovable property is challenged as not valid or enforceable, the arbitration agreement would remain unaffected for the purpose of resolution of disputes arising with reference to the deed of transfer.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">15. But where the contract or instrument is voidable at the option of a party (as for example under Section 19 of the Contract Act, 1872), the invalidity that attaches itself to the main agreement may also attach itself to the arbitration agreement, if the reasons which make the main agreement voidable, exist in relation to the making of the arbitration agreement also. For example, if a person is made to sign an agreement to sell his property under threat of physical harm or threat to life, and the said person repudiates the agreement on that ground, not only the agreement for sale, but any arbitration agreement therein will not be binding.</span></div><p></p><p></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">16. An arbitration agreement does not require registration under the Registration Act. Even if it is found as one of the clauses in a contract or instrument, it is an independent agreement to refer the disputes to arbitration, which is independent of the main contract or instrument. Therefore having regard to the proviso to Section 49 of the Registration Act read with Section 16(1)(a) of the Act, an arbitration agreement in an unregistered but compulsorily registerable document can be acted upon and enforced for the purpose of dispute resolution by arbitration.”</span></div><p></p><p><i><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></i></p><p></p><p><br></p>', 'a3dffae0b122826ed51833f6a7e8a64a.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-16', 1, '', '', '2020-12-16 19:09:38', '2020-12-29 00:35:46'),
(273, '02hMVMNKUWVpNsFjZJTsLahFl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Housing Board Act. Sanction of scheme by the State Government is mandatory before the Board takes up housing land development or labour development schemes. Karnataka High Court.', '<p><b>The Karnataka Housing Board and another vs The State of Karnataka and others. Writ Appeal 5712/2012 decided on 1 December 2020. Justice B.V. Nagaratha and Justice N.S. Sanjay Gowda.<br><br>Judgment Link: <br><a href=\"https://karnatakajudiciary.kar.nic.in/noticeBoard/wa-5712-2012-LA-KHB-01122020.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/noticeBoard/wa-5712-2012-LA-KHB-01122020.pdf<br></a></b><b style=\"\"><u style=\"\"><br><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\"><u>Relevant paragraphs:</u></b><span style=\"font-size: 0.875rem; font-weight: 400;\"> </span></div></u></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">20. Before proceeding to answer the points for consideration, the pertinent point that would arise for consideration in this appeal is, whether sanction under the provisions of sub-section (2) of Section 24 of the Act for execution of a housing scheme, land development scheme or labour housing scheme is a mandatory requirement or not has to be answered. Before venturing to answer the said point, it would be useful to deal with the scheme of the Act</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">25. A cumulative reading of the aforesaid provisions would indicate that it is the duty of the Housing Board to undertake housing schemes and land development  schemes as it may consider necessary from time to time and as may be entrusted to it by the State Government. What has to be provided for in a housing scheme is stated in Sections 18 and 18-A of the Act which would include, inter alia, the acquisition of property by purchase, exchange or otherwise i.e., by way of acquisition of any property necessary for or affected by the execution of the scheme. Under Section 19 of the Act before the first day of December in each year, the Board has to prepare and forward, inter alia, a programme and a budget for the next year and the programme shall contain the particulars of the housing schemes, land developments schemes and labour housing schemes which the Board proposes to execute whether in part or whole during the next year as may be prescribed and such other particulars as may be prescribed. The State Government may sanction the programme, the budget and the schedule of the staff of officers and servants forwarded to it with such modifications as it deems fit. The State Government has to then publish the programmes sanctioned by it under Section 20 in the Official Gazette. A supplementary programme and budget may also be sought by the Board and the State Government may sanction such a supplementary programme. The Board can vary any programme or any part of it, even after the sanction made by the State Government, provided that no such variation shall be made if it involves an expenditure in excess of 20% of the amount as originally sanctioned for execution of any housing scheme or land development scheme included in such programme or affects its scope or purpose.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">28. In this regard, it is necessary to emphasize the expressions ‘the Board shall not execute’ and ‘unless the same has been sanctioned by the State Government’ which mean that no housing scheme, land development scheme and labour housing scheme can be executed, unless it has received the sanction of the State Government. The object and purpose of insertion of sub-section (2) to Section 24 are not for to seek, the same being to ensure that the State Government is made aware of which one of the housing schemes, land development schemes or labour housing schemes, included in the programme, which has been sanctioned under Section 20 of the Act would be executed and further, where such a scheme involves acquisition of land, the State Government is appraised of the said fact also, as it has to make available the budget for the purpose of paying compensation to the land owners, where the land is sought to be acquired for execution of the housing schemes, land development schemes or labour housing schemes.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">31. The decision of the Board to execute a particular housing scheme, land development scheme or labour housing scheme must therefore be brought to the knowledge of the State Government particularly when it entails acquisition of land. This is because the State Government has to make budgetary allocation and find source of funds to pay compensation to the land losers, if the Housing Board intends to execute any such scheme on the land belonging to private land owners. Therefore, the use of the words “shall not execute” and the words “unless the same has been sanctioned by the State Government” have been intentionally used by the State Legislature so as to make it a mandatory requirement.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">45. In the circumstances, we are of the view that the sanction of a scheme by the State Government under sub-section (2) of Section 24 of the Act is a condition precedent and a mandatory requirement before the Housing Board would execute any housing scheme, land development scheme or labour housing scheme. This is irrespective of whether any housing scheme would entail acquisition of land or not as opposed to a scheme entrusted by the Board under Section 32 of the Act.</span></div><i><div style=\"text-align: justify;\"><br></div><b>Compiled by S. Basavaraj, Daksha Legal.</b></i></p>', '56a624d9dab9984297faf5d2aa413d82.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-01', 1, '', '', '2020-12-17 04:24:22', '2020-12-28 23:56:41'),
(271, 'egGAhTdqeQlILmTp6OQ2R0Khz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bar and the Bench being two inseparable wheels of the same chariot have to move shoulder by shoulder each being complementary and supportive to the other. Karnataka High Court.', '<p><b>Dr. Jaya Balasundaram and others vs Sahasra Gastroenterology and Obesity Clinic Pvt Ltd. Writ Petition 14226/2020 decided on 8 December 2020.</b><br><br><b>Judgment Link: </b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352896/1/WP14226-20-08-12-2020.pdf\" target=\"_blank\" style=\"font-weight: bold;\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352896/1/WP14226-20-08-12-2020.pdf<br></a><br><b>Relevant paragraphs:&nbsp;</b></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>Facts:</b></span><span style=\"font-size: 0.875rem;\"><b> </b>Whilst Execution Case is being processed, some initial steps having been taken for levying enforcement of the award in question, learned Judge has employed some arguably intemperate&nbsp; language&nbsp; in&nbsp; his&nbsp; orders reflecting on the professional conduct of learned counsel for the petitioners&nbsp; who is a senior member having a considerable standing at the Bar; therefore, petitioners are knocking at the doors of the&nbsp; writ court seeking expunction of the said “adverse observations”.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">5. Reproducing the text of the said three orders may not be advisable.&nbsp; Suffice&nbsp; it&nbsp; to say that, judges should not be too sensitive in the conduct of court proceedings or to the comments of the onlookers; in any circumstance, they are not expected to ink their orders with a pen dipped in acid either; cause of judicial process is served more by restraint of unpleasant expressions than otherwise; if the court orders are constructed with avoidably pungent words, the stream of justice runs the risk of being tainted as ‘impure’.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">“In its widest sense, advocacy is the art of convincing others, that is to say, the art of persuasion … In its legal context, advocacy is the art of conducting cases in court, both by argument and by the manner of bringing out the evidence, so as to convince the court or jury …For members of the bar, who make a practice of appearing in court, advocacy is of first importance and ranks at any rate on an equal level with a knowledge of the law…” writes John Munkman in “The Technique of Advocacy”, LexixNexis Butterworks, London, 1991 Edn.; at times persons&nbsp; associated&nbsp; with&nbsp; adjudicatory process exhibit more emotion than what is normal, for inscrutable reasons; perhaps ‘chimp’ hidden in&nbsp; humans&nbsp; needs no instigation to act and therefore has to be handled tactfully; prudence warrants that all stakeholders in adjudication relegate their emotions to the backseat so that the purity of judicial process is maintained; more is not necessary to elaborate.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">7. It hardly needs to be reiterated that the Bar and&nbsp; the Bench being two inseparable wheels of the same chariot, have to move shoulder by shoulder, each&nbsp; being complementary and supportive to the other, the ‘bar’ in between, notwithstanding; even if the submissions of the counsel are, at times, not couched in a pleasant language, a judge is expected not to loose his cool in his expression, be it oral or in writing; efficacy of the orders can be maintained&nbsp; sans acidity in the language employed.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br>8. The language used in the subject orders though accords with the common usage, falls a little short of the high standards fixed by the judicial traditions; the tenor&nbsp; of&nbsp; the&nbsp; said orders appears to cast aspersion on the professional conduct of the counsel and therefore needs to be toned down, consistent with the majesty of the Institution of Judiciary. In view of the above, although impugned orders are sustained in terms of their effect &amp; efficacy, there being no challenge thereto, the text by which they are structured shall be read down and the observations therein casting aspersion on the professional conduct of the counsel for the petitioners, shall be treated as having been expunged from the record. It hardly needs to be stated that nothing in&nbsp; this judgment shall be construed as suggesting even remotely anything adverse against the learned Judge of the court below or the counsel for the petitioners.</span></div><i><br><b>Compiled by S. Basavaraj, Daksha Legal.</b></i><p></p>', '930c761a955776eaa640632099c4359a.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-08', 1, '', '', '2020-12-17 02:08:25', '2020-12-29 00:18:20'),
(272, 'U9ZkkkAD47EA2TkrcJmDYAjat', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Direct recruitment. Seniority list is based on merit rank and not the date of joining. Case law discussed. Karnataka High Court.', '<p><b>Dr. Sunilkumar Biradar vs The State of Karnataka and others. Writ Appeal 100040/2016 decided on 7 December 2020.<br><br>Judgment Link: <br></b><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/353107/1/WA100040-16-07-12-2020.pdf\" target=\"_blank\"><b>http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/353107/1/WA100040-16-07-12-2020.pdf</b><br></a><br><b>Cases referred </b>– W.A.No.245/2006 (S-PRO), disposed of on 31st July 2006, P. Srinivas Vs. M. Radhakrishna Murthy and others reported in (2004) 2 SCC 459, Suresh Chandra Jha vs. State of Bihar and others reported in (2007) 1 SCC 405, Chairman, Puri Gramya Bank v. Ananda Chandra Das in 1994 (6) SCC 301, Dharmendra Prasad and Others Vs. Sunil Kumar and Others reported in (2020) 2 SCC 146.<br></p><p><b>Relevant paragraph: </b><br><br>16. The above decisions clearly establish&nbsp; that what&nbsp; is important and the touchstone to&nbsp; determine the seniority is the selection list, which is based on merit and not the date of joining. …Thus, the fact of issuance of appointment letter to respondent No.3 subsequent to issuance of the same to the appellant and respondent No.3 joining later than the appellant into service of respondent No.2– KIMS, does not alter his seniority over the appellant as the touch stone should be&nbsp; the&nbsp; “Merit List” and not the&nbsp; fortuitous&nbsp; circumstances, which in out opinion is the result of a motivated action and not bona fide. Under the given facts and circumstances of the case, both the appellant and respondent No.3 have been selected in the same list and respondent No.3 is more meritorious than the&nbsp; appellant and&nbsp; thus, he needs to be placed above the appellant.<br><i><br><b>Compiled by S. Basavaraj, Daksha Legal.</b></i></p>', '46916b6e27f253c59b853d272ff727d7.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-07', 1, '', '', '2020-12-17 04:22:14', '2020-12-29 00:05:04');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(274, '8ZucmAjxZVTjmMQ5RCdc01AdW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land acquisition. 2013 Act. Lapse under Section 24 is only when acquisition was under 1894 Act. Section does not apply to acquisitions under State enactments. Karnataka High Court.', '<p><b>L.Ramareddy vs The State of Karnataka and others. Writ Appeal 1415/2018 decided on 1 December 2020. Justice B.V. Nagarathna and Justice N.S. Sanjay Gowda.</b><br></p><p><b>Judgment Link:<br><a href=\"https://karnatakajudiciary.kar.nic.in/noticeBoard/wa-1415-2018-LA-BDA-01122020.pdf\" target=\"_blank\" style=\"background-color: rgb(255, 255, 255); font-size: 0.875rem;\">https://karnatakajudiciary.kar.nic.in/noticeBoard/wa-1415-2018-LA-BDA-01122020.pdf</a></b></p><p><span style=\"font-size: 21px;\"><b>Relevant paragraphs:</b></span><span style=\"font-size: 21px;\"><b>&nbsp;</b></span><span style=\"font-size: 0.875rem; text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br>18. The object and purpose of the LA Act, 1894, is for acquisition of the land for public purposes and for companies. The expression public purpose is defined in Section 3(f) of the said Act. It is an inclusive definition and not an exhaustive one. Section 3(f) is substituted by the Karnataka Amendment with effect from 24.08.1961. On the other hand, the object of the BDA Act, which has substituted City Improvement Trust Board Act, is to provide for the establishment of a Development Authority for the development of the city of Bangalore, now Bengaluru, and areas adjacent thereto and matters connected therewith. Whereas, the provisions of LA Act, 1894, is to acquire land for public purposes, determination of compensation and matters connected therewith and is a general enactment, the object and purpose of the BDA Act is for planned development of Bangalore Metropolitan Area and acquisition of land under Sections 17 and 19 of the BDA Act by issuance of Preliminary and Final Notifications is incidental which is for the purpose of development schemes,&nbsp;</span></span><span style=\"font-size: 0.875rem; text-align: justify;\">as enunciated</span><span style=\"font-size: 0.875rem; text-align: justify;\">&nbsp;in Chapter III of the BDA Act, for Bangalore Metropolitan Area.</span><span style=\"font-size: 21px;\"><b><br></b></span></p><p></p><p></p><p style=\"text-align: justify; \"><span style=\"font-size: 0.875rem;\">22. Adverting to Section 27 of BDA Act, the Hon’ble Supreme Court has observed that it places an obligation upon the Authority (BDA), to complete the scheme within a period of five years and if the scheme is not substantially carried out within that period, it shall lapse and the provisions of Section 36 shall become inoperative, i.e. this is a provision which provides for serious consequences in the event the requisite steps are not taken within the specified time.</span></p><p style=\"text-align: justify; \"><span style=\"font-size: 0.875rem;\">30. Further, from the words of Section 24 of the 2013 Act, what is significant to note is the fact that the said Section expressly refers to land acquisition proceedings initiated under the LA Act, 1894. The said Section does not incorporate the words “or proceedings initiated under any other enactment”. Therefore, the expression “land acquisition proceedings initiated under the LA Act, 1894” are significant and must be given its natural and plain meaning and the said expression cannot be given an expansive interpretation by adding words to the provision, in the absence of the provision itself giving rise to any such implication. In this regard, the rules of interpretation of a statute would become relevant and reliance could be placed on guiding principles of interpretation of statute. One such principle is that the Court is not entitled to read words into a provision of an Act or Rule for, the meaning is to be found within the four corners of the provision of an act or rule, as in the instant case. Therefore, while it is not permissible to add words or to fill in a gap or lacuna, on the other hand, effort should be made to give meaning to each and every word used by the legislature. Thus, the golden rule of construction is that the words of a provision of a statute, or rule must be first understood in the natural, ordinary or popular sense. Phrases and sentences must be construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context, or in the object of the statute to suggest the contrary.</span><br></p><p></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">33. Further, Section 24 creates a new right in favour of land owners in as much as they are entitled to relief under certain circumstances as stipulated in Section 24 of the Act. One such relief is under sub-section(2) of Section 24 of the Act, dealing with lapse of acquisition by a fiction. It is a deeming provision, provided the stipulations therein are complied with or the conditions mentioned therein exist. One overbearing condition is that the acquisition must have been initiated under the provisions of LA Act, 1894. Thus, if acquisition is initiated under any other Central or State enactment, Section 24 does not apply.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">41. Therefore, for a declaration of lapse of acquisition, the pre-conditions or conditions precedent mentioned under sub-section (2) of Section 24 of the 2013 Act must apply. Most importantly the said conditions must prevail in an acquisition initiated under the provisions of the LA Act, 1894, and not with regard to acquisition initiated under any other enactment be it Central or State enactment. Hence, before land owners could seek relief under sub-section (2) of Section 24 of 2013 Act, which is a right created in their favour, the basic postulate that must be borne in mind is to ascertain, in the first instance, as to under which law, acquisition has been initiated; whether under the provisions of the LA Act, 1894 or any other law. If it is under any other law, then in my view Section 24 would not be applicable to such acquisitions.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">42. As already observed, Section 24 of the 2013 Act creates a new right in the land owners. For the exercise of said right, certain conditions have to exist, the most significant of them being, the initiation of proceedings for acquisition under the provisions of the LA Act, 1894. Therefore, the said words must be given a natural interpretation and not an expansive or wide interpretation, so as to extend the right under Section 24 even in respect of land owners whose lands are subjected to acquisition under any State enactment, such as the BDA Act or KUDA Act. In fact, the Parliament itself has been conscious of the fact that 2013 Act repeals and substitutes only LA Act, 1894, and not any other Central enactment or for that matter any other State enactment dealing with acquisition of lands.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">44. In the circumstances, it is concluded and held that Section 24 does not take within its scope nor does it apply to acquisitions which have been initiated under the provisions of any other enactment particularly, State enactment, such as, BDA Act. The said Section is restricted to only those acquisitions which have been initiated under the provisions of the LA Act, 1894 only. Subject to compliance of the conditions mentioned under sub-section (2) of Section 24, the land owner would be entitled to the deeming provision regarding lapse of acquisition and not otherwise.</span></div><i><br><b>Compiled by S Basavaraj, Daksha Legal.</b></i><p></p>', '94dd65716a3ec19ac284542a762cd6c6.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-01', 1, '', '', '2020-12-17 04:27:35', '2020-12-28 23:52:08'),
(275, 'NeKoyPm4ettJJrX9VImS72ovg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Purchase of property by father in the name of minor with reconveyance clause. Minor is bound by such clause. Supreme Court.', '<p><b>Nivarti Govind Ingale v. Revanagouda Bhimanagouda Patil, (1997) 1 SCC 475</b></p><p><b>Justice K. Ramaswamy and Justice G.B. Pattanaik </b></p><b><br>1. Delay condoned.<br><br>2. Substitution and impleadment allowed.<br><br>3. Leave granted.<br><br>4. We have heard learned counsel on both sides.<br><br>5. This appeal by special leave arises from the judgment and order of the Karnataka High Court, made on 6-1-1992 in RSA No. 933 of 1978.<br><br></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>6. The admitted position is that one Radhabai, mother of the appellants was the owner of 4 acres 38 gunthas of land in Paschayapur Village in Bijapur Taluka and District in Karnataka State. According to her, she, with a view to dig a well in RS No. 299, namely, the same land, had obtained a loan in the year 1961 from the father of the respondent in the sum of Rs 1000. Since she was not in a position to complete the digging of the well, she approached him again for a sum of Rs 2000 to complete the well. The respondent’s father who is a constable had advanced the money on the condition that she would execute the sale deed in favour of his minor son, i.e., the respondent. Accordingly, she executed the sale deed with an agreement of reconveyance which was accordingly executed on 31-8-1961. She stated that she has paid from time to time a sum of Rs 7000 and she asked the respondent to execute the reconveyance and the respondent had not executed the deed of reconveyance. Consequently, she filed the suit for specific performance. The trial Judge decreed OS No. 4 of 1966 on the file of the Additional Munsif, Bijapur on 3-4-1976. On appeal, the Additional Civil Judge allowed the appeal on 7-11-1977 and dismissed the suit. The second appeal was dismissed by the High Court. Thus, this appeal by special leave.</b></span></div><b><br></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>7. The High Court found that since the agreement of reconveyance was not for the benefit of the minor, the decree for specific performance cannot be granted. The leave of the Court was not obtained for entering into such an agreement and, therefore, the appellant is not entitled to the benefit of the specific performance. We find no force in the reasoning of the High Court in the facts and circumstances of this case. It is seen that the appellant’s mother is the owner of the property. She had obtained loan from the respondent and executed the sale deed with an agreement of reconveyance. When the father of the respondent had obtained the sale deed in the name of the minor, obviously he is bound by the agreement of reconveyance as well. Having received the money, he had not executed the sale deed. Necessarily, the appellants are entitled to seek the specific performance. Under these circumstances, the question that agreement was not for the benefit of the minor which is a legal proposition, cannot be applied to the facts. It is contended that subsequent purchaser from the father of the respondent of the selfsame property, without knowledge of the pendency of the suit is bound by the agreement. We find no force in the contention. The appellants have been seeking the remedy in the civil suit; any subsequent sale will be barred by the doctrine of lis pendens. Therefore, the subsequent purchaser is bound by the decree of specific performance and liable to reconvey the property to the appellants. The decree of the trial Judge is accordingly restored and that of the High Court and the Additional Civil Judge stand set aside. The remedy of recovery of the purchased money from the respondent may be sought in an appropriate action.</b></span></div><b><br>8. The appeal is accordingly allowed. No costs.</b>', '3811e8cc7313565b6323cb6ad6e658ce.jpeg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-01', 1, '', '', '2020-12-18 02:25:38', '2023-02-01 14:59:33'),
(276, 'HdJF6lZX2guRL0G6tGmn5ZBck', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constitution of India. Articles 341 and 342. Entries in Presidential Order. Courts have no power to deal with question as to whether a particular caste or sub-caste or group of tribe is included in entries. Supreme Court.', '<p><b>The State of Maharashtra and another vs Keshao Vishwanath Sonone and another. Civil Appeal No. 4096 of 2020 decided on 18 December 2020. Justice Ashok Bhushan, Justice R. Subhash Reddy and Justice M.R. Shah.<br><br>Judgment Link: <br></b><a href=\"https://main.sci.gov.in/supremecourt/2020/15277/15277_2020_37_1501_25112_Judgement_18-Dec-2020.pdf\" target=\"_blank\"><b>https://main.sci.gov.in/supremecourt/2020/15277/15277_2020_37_1501_25112_Judgement_18-Dec-2020.pdf</b><br></a><b style=\"\"><br>Question:</b> Whether the High Court in the writ petition giving rise to these appeals could have entertained the claim of the caste “Gowari”, which is not included as Scheduled Tribe in the Constitution (Scheduled Tribes) Order, 1950, that it be declared a Scheduled Tribe as “Gond Govari” which is included at Item No.18 of Constitution (Scheduled Tribes) Order, 1950 applicable in the State of Maharashtra and further to take evidence to adjudicate such claim?<br>HELD: The caste ‘Gowari’ is not the same as ‘Gond Gowari’. The High Court could not have granted declaration of caste ‘Gowari’ as ‘Gond Gowari’.<br><b style=\"\"><br>Relevant paragraphs.</b> <br><br>58. This Court after noticing the constitutional provisions held that it is not possible to say that State Governments or any other authority or courts or tribunals are vested with any power to modify or vary the Scheduled Tribes Orders. This Court also held that no enquiry is permissible and no evidence can be let in for establishing that a particular caste or part or group within tribes or tribe is included in Presidential Order if they are not expressly included.<br><br>59. The Constitution Bench State of Maharashtra Vs. Milind and Ors., (2001) 1 SCC 4 reiterated that the power to include or exclude, amend or alter the Presidential Order is expressly and exclusively conferred on and vested with the Parliament and Courts cannot and should not extend jurisdiction to deal with the question as to whether a particular caste or&nbsp;<span style=\"font-size: 0.875rem;\">sub-caste or group or part of tribe is included in any one of the entries mentioned in the Presidential Order.</span></p><p>61. In view of the ratio of judgments of this Court as noticed above, the conclusion is inescapable that the High Court could not have entertained the claim or looked into the evidences to find out and decide that tribe “Gowari” is part of Scheduled Tribe “Gond Gowari”, which is included in the Constitution (Scheduled Tribes) Order, 1950. It is further clear that there is no conflict in the ratio of Constitution Bench judgments of this Court in B. Basavalingappa Vs. D. Munichinnappa and Ors., AIR 1965 SC 1269 and State of Maharashtra Vs. Milind and Ors., (2001) 1 SCC 4. The ratio of B. Basavalingappa’s case as noted in paragraph 6 of the judgment and extracted above is reiterated by subsequent two Constitution Bench judgments in Bhaiya Lal Vs. Harikishan Singh and Ors., AIR 1965 SC 1557 and Milind’s case. There being no conflict in the ratio of the above three Constitution Bench judgments, we do not find any substance in submission that for resolving the conflict, the matter need to be referred to a larger Constitution Bench. We, thus, answer question Nos.1 and 2 in following words:-<br>(i) The High Court in the writ petition giving rise to these appeals could not have entertained the claim of a caste “Gowari” that it be declared a Scheduled Tribe as “Gond Gowari” included at Entry No.18 of the Constitution (Scheduled Tribes) Order, 1950 nor High Court could have taken evidence to adjudicate the above claim.<br>(ii) There is no conflict in the ratio of the judgment of Constitution Bench of this Court in Basavalingappa’s case and Milind’s case.<br><br>101. We in the ends of justice directs that the admission taken and employment secured by the members of ‘Gowari’ community on the basis of Scheduled Tribe certificate granted to them between 14.08.2018 till date shall not be affected by this judgment and they shall be allowed to retain the benefit of Scheduled Tribe obtained by them. However, the above Scheduled Tribe candidates shall not be entitled to any further benefit as Scheduled Tribe except their initial admission in different courses or employment at different places on the strength of Scheduled Tribe certificate given to the ‘Gowari’ Community obtained between 14.08.2018 and this day.<br><i><b><br>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></i></p><div><br></div>', '4fecefdc9669e5b74a80128031699f90.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-18', 1, '', '', '2020-12-18 18:53:35', '2020-12-28 23:02:29'),
(277, '4MpYauDJITGNmYOKgh0ysQjpt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Penal Code. Section 304A. There must be a direct nexus between death of a person and rash and negligent act of accused. Death due to electrocution. Criminal negligence against Section officer of the electric company not proved. Karnataka High Court', '<p><b>Mahalingappa vs The State of Karnataka Criminal Revision Petition 2217/2011, decided on 4 December 2020. Justice Pradeep Singh Yerur.</b><br><br><b>Judgment Link:</b><br> <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/353870/1/CRLRP2217-11-04-12-2020.pdf\" target=\"_blank\"><b>http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/353870/1/CRLRP2217-11-04-12-2020.pdf</b><br></a><u style=\"\"><b style=\"\"><br>Relevant paragraphs:</b></u> <br><br></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">A careful understanding of requirement under section 304A are that there must be a direct nexus between death of a person and a rash and negligent act of accused. A remote nexus is not enough for the purpose of criminal law, there are degrees of negligence and a very high degree of negligence is required to be proved before a charge can be sustained under this section. A mere negligence is not enough to bring a case within the ambit and scope of these sections. Negligence or rashness must be such as carrying with him&nbsp; a&nbsp; criminal liability. Criminal rashness is a hazard of dangerous act with the knowledge that it is so, and that the which may cause an injury. Therefore it is necessary for prosecution to establish that act of accused is rash or negligent and by such act death&nbsp; has occurred and that act does not amount&nbsp; to culpable homicide. Therefore question is, whether in the facts and circumstances of present case and material on record, act of respondent can be said to&nbsp; be rash or negligent.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">24..As stated earlier, it is case of the prosecution that accused has been implicated in the present case for the reason that he was in-charge as&nbsp; a Section Officer of that particular area where the incident occurred and that he is responsible for the electric lines and it is his duty to&nbsp; maintain&nbsp; the electric lines so that it does not&nbsp; lead&nbsp; to&nbsp; any untoward incident.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">25. Admittedly, it is not the case of PW.1 or PW.4, the grand- father and father of minor boy that accused herein is directly responsible for&nbsp; death of&nbsp; the minor boy. In fact, in the evidence, they have clearly stated that they do not know who is responsible for the cause of death and it is further stated that they do not even attribute the mistake of KPTCL but they are of the opinion&nbsp; that&nbsp; it&nbsp; should&nbsp; have been checked by the responsible persons of KPTCL. Therefore, there is no clear cut criminal rashness or negligence attributed directly to accused herein. In the present case, it has to&nbsp; be&nbsp; seen&nbsp; whether there is a direct nexus between the accused in the cause of death of minor boy Prashant.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">26. Criminal negligence is gross and culpable negligence or failure to exercise that reasonable and probable care and precaution to guard against the injury either to public generally and or to&nbsp; individual&nbsp; in particular.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">33. In view of the above, the judgments&nbsp; of&nbsp; Hon’ ble Supreme Court and the Co-ordinate bench of this Court, it is crystal clear that to attract the provisions of Section 304 -A, there has to be a direct nexus of gross criminal negligence or culpable negligence or failure to exercise that reasonable and proper care and that such act is so directly attributable to the rashness and negligence&nbsp; of accused and such act of accused is the proximate cause of death. In&nbsp; the&nbsp; present case on&nbsp; hand, there is no allegation that the death of the minor boy Prashant was the direct result of any act or omission on the part of accused.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Appeal allowed.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>Cases referred:</b>&nbsp;</span><span style=\"font-size: 0.875rem;\">(2015) 12 SCC 781, Sharad Kumar Sanghi vs. Sangita Rane, AIR 1972 SC 1150, Ambalal D. Bhatt vs. The State of Gujarat; AIR 1965 SC 1616, Kurban Hussein Mohamedalli Rangawalla vs. State of Maharashtra; AIR 1979 SC 1848, Syad Akbar vs. State of Karnataka; (2012) 5 SCC 661, Aneeta Hada vs. Godfather Travels and Tours Private Limited; 2013 AIR SCW 26, Lahu Kamlakar Patil and another vs. State of Maharashtra; 2007 Crl. L. J. 486, B. E. Chandrashekar and others vs. State of Karnataka; Crl. Rev.Pet. No. 818 of 2017 dated 9:2:2018 Ajay Kharbanda vs Central Bureau of Investigation.</span></div><p></p><p><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b><i><b></b></i></p><p><br></p>', '959d2e84a9c54440166df76f935b7e0d.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-04', 1, '', '', '2020-12-19 01:06:43', '2020-12-28 22:59:10'),
(278, 'xjRWpPixhQ9P40nHDbx50fZAD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Registration Act 1908. Sub-Registrar is not bound to register sale deed pursuant to court decree unless the legal requirements are complied with. Karnataka High Court', '<p><p style=\"text-align: left;\"><b>Ashrafali vs Hari Rama Bireje by Lrs. Civil Revision Petition 100038/2018 Decided on 15 December 2020.<span style=\"text-align: justify; font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%; font-size: 0.875rem;\"><br></span></b></p><p style=\"text-align: left;\"><span style=\"text-align: justify; font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%; font-size: 0.875rem;\"><b>Suit for specific performance decreed. Original Judgment debtor refused to execute sale deed. Execution petition filed. The executing court appointed a Court commissioner to execute registered sale deed in favour of the plaintiff decree holder. The Sub-Registrar returned the document insisting no objection certificate under the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978. The execution petition was closed for the time being by the court with liberty to re-open when cause of action called for. This order was challenged before the Hon’ble High Court.</b></span></p></p><p><b> </b><p></p><p style=\"text-align: left;\"></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>7. Learned HCGP submitted that the role of the Sub- Registrar is not just to register each and every document produced before him for its registration, but wherever his act of registering the document is against any law or guidelines, then he can return the document un-registered. Stating that the said point has been extensively observed by the coordinate Bench of this Court, he placed a copy of the order dated 05.11.2020 passed by the coordinate Bench of this Court in the case of Sri. R. Sampath Vs. State of Karnataka by Its Secretary, Department of Revenue and Others, in W.P.No.18660/2013 (KLR-RES).</b></span></div><b><br></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>8. The Sub-Registrar is required to follow the procedure laid down under the Karnataka Registration Rules, 1965 (henceforth referred to as ‘the Registration Rules’, for brevity). Rules 69 to 81 of the Registration Rules, and more particularly, Rule 171(1) mentions that Sub-Registrar can also refuse registration of documents in terms of what is stated in the sub- rule. Therefore, though the Sub-Registrar has got the power to register a document, equally he has got power to refuse the registration of a document also, however, the said power of refusal must be exercised within the parameters prescribed under the Karnataka Registration Act, 1908 as well the Registration Rules.</b></span></div><b><br></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>9. Section 71 of the Registration Act mentions that reasons for refusal to register should be recorded. Rule 171 of the Registration Rules also mentions that reasons for refusal to register has to be recorded in Book No.2. When there is refusal for registration, as provided under Section 71 of the Registration Act, is appealable under Section 72 of the Registration Act. An appeal would lie to the Registrar to whom the said Sub-Registrar is sub-ordinate. Such an appeal is required to be filed within 30 days from the date of the order.</b></span></div><b><br></b><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>10. Thus, it is clear that a Sub-Registrar can refuse registration in terms of Section 71 of the Registration Act read with Rule 171 of the Registration Rules, for the reason recorded by him in book No.2….Therefore, it is very clear that, merely because an Executing Court has appointed a Court Commissioner for execution of a sale deed in favour of the decree holder, it does not necessarily mean that the Sub-Registrar should invariably register that document though according to him several of the requirements for its registration has not been complied with by the parties to the documents. Therefore, suffice it to say that the Executing Court, though has not given the detailed reasons for its finding, however, has arrived at a finding for closure of execution petition for the time being reserving liberty to the decree holder to open it when cause of action calls for and also observing that the decree older had efficacious remedy before the Competent Forum for the alleged return of the document by the Sub- Registrar. I do not find any irregularity, perversity in the said order of the Executing Court warranting any interference at the hands of this Court.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>Hi Petition dismissed.</b></span></div></p>', '920801949f75a22342f418286b061bec.jpeg', '7d634193a0dfafe9432259acaa0f9372.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-15', 1, '', '', '2020-12-20 01:14:47', '2022-08-08 03:08:08'),
(299, 'awCBJuB1GWkGTxmxxtcK1G3JN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Specific Performance. In case of immovable property time is not the essence of the contract. However Court can infer essence of time in certain cases. Supreme Court.- Constitution Bench. ', '<h4><p style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Chand Rani v. Kamal Rani, (1993) 1 SCC 519. (Constitution Bench)</b><br></span><span style=\"font-size: 1.3125rem;\"><br></span><span style=\"font-size: 1.3125rem;\">Paragraph 19. It is a well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language.<br><br></span><span style=\"font-size: 1.3125rem;\">25. From an analysis of the case-law it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are: (1) From the express terms of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances, for example: the object of making the contract.<br></span><span style=\"font-size: 1.3125rem;\"><br>Cases relied on:<br></span><span style=\"font-size: 1.3125rem;\">1 (1967) 1 SCR 227 : AIR 1967 SC 868<br></span><span style=\"font-size: 1.3125rem;\">2 (1979) 2 SCC 70 : (1979) 2 SCR 1147<br></span><span style=\"font-size: 1.3125rem;\">3 AIR 1915 PC 83<br></span><span style=\"font-size: 1.3125rem;\">4 (1969) 3 SCC 120 : (1970) 2 SCR 854<br></span><span style=\"font-size: 1.3125rem;\">5 ILR 40 Bom 289<br></span><span style=\"font-size: 1.3125rem;\">6 (1867) 3 Ch App 61<br></span><span style=\"font-size: 1.3125rem;\">7 (1853) 3 De GM &G 284<br></span><span style=\"font-size: 1.3125rem;\">8 (1977) 2 SCC 539<br></span><span style=\"font-size: 1.3125rem;\">9 (1849) 3 Exch 283, 308<br></span><span style=\"font-size: 1.3125rem;\">10 (1870) LR 10 Eq 281<br></span><span style=\"font-size: 1.3125rem;\">11 (1950) 1 KB 616<br></span><span style=\"font-size: 1.3125rem;\">12 (1988) 2 SCC 488 : AIR 1988 SC 1074</span></p></h4><h4 style=\"text-align: justify;\"><i><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></i></h4><div><br></div>', '65452a4f982f19a54a407e56ad2b4768.jpeg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-25', 1, '', '', '2020-12-26 02:10:28', '2020-12-27 16:58:02'),
(300, 'MnQp7tk1CNt1wIJk4qAwdUyoO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Slayer Rule. A murderer cannot inherit property of the victim even where the provisions of Hindu Succession Act do not apply. Karnataka High Court.', '<p></p><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Swami Shradanand vs Gauhar Taj Namazie and others. Regular First Appeal 148/2003 decided on 17 March 2017.<br><br></b></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Judgment Link:</b><span style=\"font-size: 0.875rem; font-weight: 400;\"> </span></div><div style=\"text-align: justify;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/159003/1/RFA1487-03-17-03-2017.pdf?fbclid=IwAR3knwf8n83KNvLscdUhmuOdw10E1NsSSKeYhmGrk1ZRtxSznCy7tY4AU6M\" target=\"_blank\" style=\"background-color: rgb(255, 255, 255); font-size: 0.875rem; font-weight: 400;\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/159003/1/RFA1487-03-17-03-2017.pdf?fbclid=IwAR3knwf8n83KNvLscdUhmuOdw10E1NsSSKeYhmGrk1ZRtxSznCy7tY4AU6M</a></div></b><p style=\"text-align: justify;\"><b><span style=\"text-align: left;\"><br>Relevant</span><span style=\"font-size: 0.875rem;\">&nbsp;</span>Paragraphs<span style=\"font-size: 0.875rem;\">:</span></b></p><p style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">11.Having regard to the aforesaid rival contentions, the prime question for consideration in the application is, “Whether the appellant has incurred disqualification to represent the estate of deceased Shakereh Khaleeli on account of he murdering her and thereby disentitled to prosecute the appeal?”&nbsp;</span></p><p style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">13. There is no dispute that, from the Session’s Court till the Supreme&nbsp; Court,&nbsp; all&nbsp; the Courts have held that the appellant, in a calculated manner got access to Shakereh Khaleeli to grab her properties, gained her trust and married her…..administered Shakereh Khaleeli the high doze sedatives laced tea, when she fell fast asleep, stuffed her into that wooden box and buried that box in the pit got dug by him and leveled the land, thus killed her when she was just forty.&nbsp;</span></p><p style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Cases relied on: Girimallappa Channappa Somsagar vs Kenchava Sane Yellappa Hosmani (1921 Indian Cases Vol.LXIL, 294), Kenchavva Kom Sanyellapap Hosmani and another vs Girimallappa Channappa Somsagar (AIR 1924 Privy Council 209), Saroja Chandrasekar vs The Union of India Writ Petition 19942/2002 decided on 15 July 2015, Vellikannu vs. R.Singaperumal and another reported in 2005 (6) SCC 622, Vedanayaga Mudaliar v. Vedammal (ILR (1904) 27 Mad 591), Gangu vs. Chandrabhagabai (1908)&nbsp; 32 Bom. 275, K.Stanumurthiayya &amp; Ors. v. K.Ramappa &amp; Ors., AIR (29), 1942 Madras 277, Nakchhed Singh &amp; Ors. vs. Bijai Bahadur Singh &amp; Anr., AIR 1953 All. 759, Mata Badal Singh &amp; Ors. vs. Bijay Bahadur Singh &amp; Ors., AIR 1956 All. 707, Minoti vs. Sushil Mohansingh Malik&nbsp; &amp; Anr., AIR 1982 Bom. 68.</span></p><p></p><p style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">24. In this case also, merely because there is no provision in the Indian Succession Act to disqualify the murderer to the estate of his own victim, it does not bar the Courts from disqualifying him from inheritance.<br></span></p><p><span style=\"font-size: 0.875rem;\">27. Having regard to the aforesaid facts and circumstances and judgments, even in&nbsp; the&nbsp; absence of specific provision in Indian Succession Act, for disqualification of a murderer to succeed to the&nbsp; estate of his own victim, this Court draws authority from the Judgment of the Privy Council in Kenchavva Kom Sanyellapap Hosmani and another vs Girimallappa Channappa Somsagar (AIR 1924 Privy Council 209)…..appellant is not entitled to succeed to the estate of Shakereh Khaleeli, whom he murdered.</span></p><p><span style=\"font-size: 0.875rem;\">31. At the cost of repetition, it is to be noted that when Bombay High Court&nbsp; rendered&nbsp; judgment in Girimallappa Channappa Somsagar’s case referred to supra and Privy Council upheld&nbsp; that&nbsp; there was no law, much less the Hindu Succession Act disqualifying the murderer to succeed to his victim’s estate.</span></p><p><span style=\"font-size: 0.875rem;\">32. The case on hand is probably the first in the legal history, where a person having an eye on&nbsp; the property of a wealthy woman gains access to her hatching the plan to grab her property and marries her under the Special Marriage Act and murders her in a very gruesome manner to grab her properties. Hopefully such cases may drive the concerned to amend the Indian Succession Act incorporating a Section pari metria to Sections 25 and 27 of the Hindu Succession Act.</span></p><p></p><p></p><p style=\"text-align: justify;\"><i><b>Compiled by S. Basavaraj, Advocate, Daksha Legal. raj@dakshalegal.com</b></i></p>', '74cc5c7edbbd55f7d85acdaaa4ee149e.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2017-03-17', 1, '', '', '2020-12-27 02:45:35', '2020-12-27 16:51:19'),
(295, 'E1RWZHZuQd17PLnJMsG4bHc1u', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Appeal by victim under Section 372 will not abate if victim dies during the appeal proceedings. Karnataka High Court.', '<blockquote class=\"blockquote\"><p style=\"text-align: justify; \"><b><span style=\"font-family: \" arial\";\"=\"\">K.A.Shivappa Gowda vs B.L.Jayesha and others. Criminal Appeal 45/2015 decided on 30 November 2020.</span></b><br></p><p></p><div style=\"text-align: justify;\"><span style=\"font-size: 1.09375rem;\"><b>Judgment Link:<br></b></span><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354477/1/CRLA45-15-30-11-2020.pdf\" target=\"_blank\" style=\"background-color: rgb(255, 255, 255); font-size: 1.09375rem;\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354477/1/CRLA45-15-30-11-2020.pdf</a></div><p></p><p></p><div style=\"text-align: justify;\"><span style=\"font-size: 1.09375rem;\"><b>Relevant paragraphs: <br></b><br>17. It is not in dispute that the present appeal came to be filed by the appellant under the proviso to Section 372 of the Cr.P.C. The proviso to Section 372 of the Cr.P.C. came into force with effect from 31-12-2009, thereby the victim shall have a right to file an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against&nbsp; the order of conviction of&nbsp; such Court. Earlier to amendment, there was no provision for the&nbsp; appellant to file an appeal. The definition of ‘victim’, as defined under Section 2(wa) of the Cr.P.C. came to be amended with effect from 31-12-2009, means “a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir.”</span></div><div style=\"text-align: justify;\"><br></div><span style=\"font-family: \" arial\";\"=\"\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.09375rem;\">19. …A reading of Section 394 of the Cr.P.C. depicts that once&nbsp; an appeal against acquittal is entertained by this Court, this Court is bound to consider and dispose of the same in accordance with law and the same will not abate on account of the death of the appellant-complainant.</span></div></span><div style=\"text-align: justify;\"><br></div><span style=\"font-family: \" arial\";\"=\"\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.09375rem;\">20. As on the date, the appellant was not available, the proceedings before this Court cannot be abated as the appeal against acquittal is already entertained; it becomes the duty of this Court to decide the same irrespective of the fact that the appellant either does not choose to prosecute it or unable to prosecute it for one reason or the other. The sole appellant died subsequent to the decision on merits will not abate the appeal. Once an appeal is entertained, it is the Court and the accused and even assuming that the sole appellant died, his legal heirs can prosecute the appeal.</span></div></span><p></p><p style=\"text-align: justify;\"><b><i><span style=\"font-family: \" arial\";\"=\"\">Compiled by S. Basavaraj, Advocate, Bangalore.</span></i></b></p></blockquote>', '48fca15b72c9697084ccaec6665179be.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-30', 1, '', '', '2020-12-24 03:20:58', '2020-12-29 17:01:59'),
(296, '34PhY6MaKnAtiH8EBFGLfxtfx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Tax laws. Interpretation. There is no equity about tax. No presumption as to tax. Nothing to be read in. Nothing to be implied except the actual language used. Karnataka High Court.', '<h4><p style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>M/s. Kluber Lubrication (India) Pvt Ltd vs Additional Commissioner of Commercial Taxes. TAET 10/2014. Decided on 16 December 2020.</b></span><span style=\"font-size: 1.3125rem;\"><br></span></p><p style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Judgment Link:<br></b></span><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354692/1/TAET10-14-16-12-2020.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354692/1/TAET10-14-16-12-2020.pdf</a></p></h4><h4 style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>Relevant paragraphs:</b></span><br></h4><p style=\"text-align: justify;\">18. In the backdrop of aforesaid relevant statutory provisions referred to supra, we may advert to well settled principles of construction of taxing statutes. It is well established rule of interpretation of taxing statutes in words of Lord Simonds that subject is not to be taxed without clear words for that purpose and that every Act of Parliament must be read according to natural construction of its words. The aforesaid principle was referred to with approval by Supreme Court in ‘MEMBER SECRETARY, ANDHRA PRADESH STATE BOARD FOR PREVENTION AND CONTROL OF WATER POLLUTION VS. ANDHRA PRADESH RAYONS LTD.’, AIR 1989 SC 611, ‘SARASWATI SUGAR MILLS VS. HARYANA STATE BOARD’, AIR 1992 SC 224, ‘INDIA CINE AGENCIES VS. COMMISSIONER OF INCOME TAX, MADRAS’, (2008) 17 SCC 385, ‘MAMTA SURGICAL COTTON INDUSTRIES, RAJASTHAN VS. ASSISTANT COMMISSIONER&nbsp; &nbsp; (ANTI&nbsp; &nbsp; EVASION),&nbsp; BHILWARA, RAJASTHAN’, (2014) 4 SCC 87. It is equally well settled legal position that in a taxing Act, one has to look at merely what is clearly said. There is no rule for any intendment. There is no equity about a tax. There is no presumption as to tax. Nothing has to be read in, nothing is to be implied, one can only look fairly at the language used. [See: ‘UNION OF INDIA VS. IND-SWIFT LABORATORIES LTD.’, (2011) 4 SCC 635 AND ‘BANSAL WIRE INDUSTRIES LTD. VS. STATE OF UTTAR PRADESH’, (2011)&nbsp; 6 SCC 545, ‘CIT&nbsp; VS. CALCUTTA KNITWEARS’, 2014 (6) SCC 444] [See: Principles of Statutory Interpretation, Justice G.P.Singh, 14th Edition, Page 879].</p><p style=\"text-align: justify;\"><i><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></i></p>', 'ef4294468c50205620b7067b74fe92e3.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-16', 1, '', '', '2020-12-25 16:51:16', '2020-12-29 16:49:31'),
(297, 'tsJQwNGQAsJMkrwaWTO5rSxwG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Law of precedent. Observations made by the court must be read in context in which they appear to have been stated. The judgments of the courts are not to be construed as statutes. Karnataka High Court', '<h4><p style=\"text-align: justify;\"></p><p><span style=\"font-size: 1.3125rem;\"><b>M/s. Kluber Lubrication (India) Pvt Ltd vs Additional Commissioner of Commercial Taxes. TAET 10/2014. Decided on 16 December 2020.</b><br></span><span style=\"font-size: 1.3125rem;\"><b><br>Judgment Link: </b><br></span><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354692/1/TAET10-14-16-12-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354692/1/TAET10-14-16-12-2020.pdf</a><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354692/1/TAET10-14-16-12-2020.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\"><br><br></a><span style=\"font-size: 1.3125rem;\">R<b>elevant paragraphs:&nbsp;</b><br></span><span style=\"font-size: 1.3125rem; text-align: justify;\"><br>20. The following words of Lord Denning in the matter of applying the law of precedent have become locus classicus. “Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.”“</span><span style=\"font-size: 1.3125rem;\"><br></span></p><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">21. It is well settled in law that a decision of the court is only an authority for what it decides and not what can logically be deduced therefrom. It cannot be quoted for a proposition that may seem to follow logically from it and such a mode of reasoning assumes that law is necessarily a logical code, whereas it must be acknowledged that law is not always logical. It is equally well settled legal position, that court should not place reliance on a decision without discussing as to how the factual situation fits in with the fact situation of the decision, on which reliance is placed. [See: ‘DELHI ADMINISTRATION (NCT OF&nbsp; DELHI)&nbsp; VS.&nbsp; MANOHAR LAL’, AIR 2002 SC 3088 and ‘HARYANA FINANCIAL CORPORATION VS. JAGADAMBA OIL MILLS’, (2002) 3 SCC 496]. It is well settled in law that observations of the courts are neither to be read as Euclid’s theorems nor as provisions of a statute and should not be taken out of their context. The observations must be read in the context, in which they appear to have been stated. The Judges interpret statutes and they do not interpret judgments. [See: ‘BHARAT PETROLEUM CORPORATION LTD. VS. N.R.VAIRAMANI’, (2004) 8 SCC 479].</span></div></span><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br>22. The aforesaid words were referred to by Supreme Court in ‘COLLECTOR OF CENTRAL EXCISE VS. ALLURY TOBACCO PRODUCTS’, 2004 (170) E.L.T. 135 (SC) and it has been held that courts should not place reliance on the decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed and observations of the courts are neither to be read as Euclids theorems nor as provisions of statute. It has further been held that observations made by the court must be read in context in which they appear to have been stated and the judgments of the courts are not to be construed as statutes.</span></div></span><p></p><i><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></i><p></p></h4>', 'c98ba4c423aa5b96a1af35180d4abc5b.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-16', 1, '', '', '2020-12-25 17:35:35', '2020-12-29 16:49:06');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(298, 'qx2UYBshLqNN3K9IxTaafrbKD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Marriages registered under the Registration of Hindu Marriages Act 1955 even after coming into to force of the Karnataka Marriages -Registration and Miscellaneous Provisions- Act 1976 are valid. No implied repeal of 1955 Act. Karnataka High Court.', '<h4><p style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem; font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Sadananda Naik vs State of Katnataka. Criminal Revision Petition 567/2011 decided on 11 December 2020.</b><span style=\"font-size: 1.3125rem;\"><br></span><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354623/1/CRLRP567-11-11-12-2020.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\"><br><br></a><span style=\"font-size: 1.3125rem;\">Wife filed criminal case under Section 498A of the Indian Penal Code, 1860. Accused denied marriage itself. Argument in High Court was that the alleged marriage was registered under the Registration of Hindu Marriages Act 1955 and the same is not valid after coming into force of the Karnataka Marriages (Registration and Miscellaneous Provisions) Act, 1976.<br><br></span><span style=\"font-size: 1.3125rem;\"><br>29. Admittedly, there is no express repealing of the applicability of the registration of marriages under Section 8 of H.M.Act in Karnataka nor there is any repealing of the RHMK Rules. Section 31 of KMRM Act though speaks about overriding effect of the Act upon any other Law for the time being in force, but, it cannot be forgotten that the H.M.Act is a Central Act (No.25 of 1955).<br></span><span style=\"font-size: 1.3125rem;\"><br>30. ...the implied repeal cannot be readily inferred and mere provision of an additional remedy by a new Act would not take away an existing remedy. Further the implied repeal&nbsp; of an earlier law&nbsp; can be inferred only where there is enactment of a later law which had the power to override the earlier law and is totally inconsistent with the earlier law and the two laws cannot stand together. The registration of just provides a provision for registration of only those marriages which have been contracted in the Karnataka State, but, it also provides for registration of marriages in such place in which the bridegroom or the bride ordinarily resides. This is clear in Rule 4(1) of RHMK Rules, whereas, Section 3 of KMRM Act confines the scope of said Act only with respect to the marriages contracted in the State on or after the appointed day. However, the said KMRM Act does not confine the registration of marriages only for Hindu marriages, but, it says that it is applicable to every marriage that are contracted in the State.<br></span><span style=\"font-size: 1.3125rem;\"><br>31. Therefore, the provisions for registration of marriage (in the instance case, Hindu marriage) under KMRM Act would not in any way annul or invalidate a Hindu marriage registered under H.M.Act and RHMK Rules. Since the registration of marriage under H.M.Act is confined only for registration of Hindu marriages, whereas, the KMRM Act is of a wide scope enabling the registration of every marriage contracted in the State, the registration of marriage under KMRM Act so far as Hindus are concerned can be an additional provision for registration of their marriage. As such, it would not take away the facility of registering the marriage under H.M.Act and the RHMK Rules.<br></span><span style=\"font-size: 1.3125rem;\"><br>32. ...it also cannot be ignored that Section 8 of KMRM Act would not invalidate the marriage merely because the said marriage is not registered under the said Act.</span></p></h4>', 'd0da3693c4b1d548ac48f4f33182e8b6.jpeg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-23', 1, '', '', '2020-12-25 18:14:58', '2022-12-23 07:22:37'),
(301, '2j0WMxMRSrPZylOUY0s9i0eMd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Anti-Suit Injunction. Case laws on the point.', '<h4></h4><blockquote style=\"text-align: center;\" class=\"blockquote\"><span style=\"font-size: 1.3125rem;\"><b>Anti-Suit Injunction. Case laws on the point.</b></span></blockquote><p style=\"text-align: justify; \"><span style=\"font-size: 0.875rem;\">Modi Entertainment Network v. W.S.G. Cricket Pte. Ltd., (2003) 4 SCC 341 – Paragraph 10. The courts in India like the courts in England are courts of both law and equity. The principles governing grant of injunction — an equitable relief — by a court will also govern grant of anti-suit injunction which is but a species of injunction. When a court restrains a party to a suit/proceeding before it from instituting or prosecuting a case in another court including a foreign court, it is called anti-suit injunction. It is a common ground that the courts in India have power to issue anti-suit injunction to a party over whom it has personal jurisdiction, in an appropriate case. This is because courts of equity exercise jurisdiction in personam. However, having regard to the rule of comity, this power will be exercised sparingly because such an injunction though directed against a person, in effect causes interference in the exercise of jurisdiction by another court.</span><br></p><p style=\"text-align: justify; \"><span style=\"font-size: 0.875rem;\">13….The test for issuance of the anti-suit injunction to a person amenable to the jurisdiction of the court in person has been varying; first it was “equity and good conscience” as could be seen from the decision of the House of Lords in Carron Iron Co. v. Maclaren (1855) 5 HLC 416. The test later adopted was “to avoid injustice” [see: Castanho v. Brown &amp; Root (U.K.) Ltd.1981 AC 557. The test adopted in the recent cases is whether the foreign proceedings are “oppressive or vexatious” — SNI Aerospatiale case.(1987) 3 All ER 510</span></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">These expressions are not clearly defined but in C.S.R. Ltd. v. Cigna Insurance Australia Ltd.(1997) 189 CLR 345 the High Court of Australia used them in the sense “only if there is nothing which can be gained by them over and above what may be gained in local proceedings”. The Supreme Court of Canada adopted the test of the requirement of “the ends of justice”. The essence or the ultimate objective is to enquire how best the interests of justice will be served; whether grant of anti-suit injunction is necessary in the interests of justice. However, in a case where a jurisdiction agreement exists it is not necessary, in all cases, to show that foreign proceedings are vexatious, oppressive or that the local court is a natural forum for the claim and there is no obligation upon the claimant to seek relief from the foreign court first.</span></div><p></p><p></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">45. In Laker Airways Limited v. Sabena, Belgian World Airlines, 1984 U.S. App. LEXIS 24811, the United States Court of Appeals for the District of Columbia Circuit, while dealing with the limits of Federal Court’s power to conserve its adjudicatory authority over a case filed with the court, instead of actively raising all defensive claims in the Federal court, the named defendants initiated suits in foreign tribunals for the sole purpose of terminating the federal court’s adjudication of the litigation. It is also found that the issue raised in two different courts represents a head-on collision between the diametrically opposed antitrust policies of the United States and United Kingdom. While analysing the said situation, it is held as follows: —</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">“It is well settled that English and American courts have power to control the conduct of persons subject to their jurisdiction to the extent of forbidding them from suing in foreign jurisdictions. However, the fundamental corollary to concurrent jurisdiction must ordinarily be respected: Parallel proceedings on the same in personam claim should ordinarily be allowed to proceed simultaneously, at least until a judgment is reached in one which can be pled as res judicata in the other. The mere filing of a suit in one forum does not cut off the preexisting right of an independent forum to regulate matters subject to its prescriptive jurisdiction. For this reason, injunctions restraining litigants from proceeding in courts of independent countries are rarely issued. A second reason cautioning against exercise of the power is avoiding the impedance of the foreign jurisdiction. Injunctions operate only on the parties within the personal jurisdiction of the courts. However, they effectively restrict the foreign courts ability to exercise its jurisdiction. If the foreign court reacts with a similar injunction, no party may be able to obtain any remedy. Thus, only in the most compelling circumstances does a court have discretion to issue an anti-suit injunction.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">There are no precise rules governing the appropriateness of anti-suit injunctions. The equitable circumstances surrounding each request for an injunction must be carefully examined to determine whether, in light of the principles outlined above, the injunction is required to prevent an irreparable miscarriage of justice. Injunctions are most often necessary to protect the jurisdiction of the enjoining court, or to prevent the litigant’s evasion of the important public policies of the forum.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Airbus Industrie v. Laura Howell Linton, 1994 SCC OnLine Kar 29 : ILR 1994 KAR 1370 : (1994) 5 Kant LJ 63</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">In SNI Aerospatiale case the Privy Council laid down the principles to be applied by a court in deciding whether to restrain a foreign proceeding. They are as follows: “The principles applicable to the grant by an English court of an injunction to restrain the commencement or continuance of proceedings in a foreign jurisdiction were not the same as those applicable to the grant of a stay of English proceedings in favour of a more appropriate foreign forum, and where a remedy for a particular wrong was available both in an English court and a foreign court the English court would normally only restrain the plaintiff from pursuing the foreign proceedings if it would be vexatious or oppressive for him to do so.”</span></div><p></p><p></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">10….the following principles emerge:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(1) In exercising discretion to grant an anti-suit injunction the court must be satisfied of the following aspects:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(a) the defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the court;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(b) if the injunction is declined, the ends of justice will be defeated and injustice will be perpetuated; and</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(c) the principle of comity — respect for the court in which the commencement or continuance of action/proceeding is sought to be restrained — must be borne in mind.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(2) In a case where more forums than one are available, the court in exercise of its discretion to grant anti-suit injunction will examine as to which is the appropriate forum (forum conveniens) having regard to the convenience of the parties and may grant anti-suit injunction in regard to proceedings which are oppressive or vexatious or in a forum non-conveniens.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(3) Where jurisdiction of a court is invoked on the basis of jurisdiction clause in a contract, the recitals therein in regard to exclusive or non-exclusive jurisdiction of the court of choice of the parties are not determinative but are relevant factors and when a question arises as to the nature of jurisdiction agreed to between the parties the court has to decide the same on a true interpretation of the contract on the facts and in the circumstances of each case.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(4) A court of natural jurisdiction will not normally grant anti-suit injunction against a defendant before it where parties have agreed to submit to the exclusive jurisdiction of a court including a foreign court, a forum of their choice in regard to the commencement or continuance of proceedings in the court of choice, save in an exceptional case for good and sufficient reasons, with a view to prevent injustice in circumstances such as which permit a contracting party to be relieved of the burden of the contract; or since the date of the contract the circumstances or subsequent events have made it impossible for the party seeking injunction to prosecute the case in the court of choice because the essence of the jurisdiction of the court does not exist or because of a vis major or force majeure and the like.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(5) Where parties have agreed, under a non-exclusive jurisdiction clause, to approach a neutral foreign forum and be governed by the law applicable to it for the resolution of their disputes arising under the contract, ordinarily no anti-suit injunction will be granted in regard to proceedings in such a forum conveniens and favoured forum as it shall be presumed that the parties have thought over their convenience and all other relevant factors before submitting to the non-exclusive jurisdiction of the court of their choice which cannot be treated just as an alternative forum.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(6) A party to the contract containing jurisdiction clause cannot normally be prevented from approaching the court of choice of the parties as it would amount to aiding breach of the contract; yet when one of the parties to the jurisdiction clause approaches the court of choice in which exclusive or non-exclusive jurisdiction is created, the proceedings in that court cannot per se be treated as vexatious or oppressive nor can the court be said to be forum non-conveniens.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(7) The burden of establishing that the forum of choice is a forum non-conveniens or the proceedings therein are oppressive or vexatious would be on the party so contending to aver and prove the same.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Dinesh Singh Thakur v. Sonal Thakur, (2018) 17 SCC 12 : (2019) 1 SCC (Civ) 765.Anti-suit injunctions are meant to restrain a party to a suit/proceeding from instituting or prosecuting a case in another court, including a foreign court. Simply put, an anti-suit injunction is a judicial order restraining one party from prosecuting a case in another court outside its jurisdiction. The principles governing grant of injunction are common to that of granting anti-suit injunction. The cases of injunction are basically governed by the doctrine of equity.</span></div><p></p><p></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">12. It is a well-settled law that the courts in India have power to issue anti-suit injunction to a party over whom it has personal jurisdiction, in an appropriate case. However, before passing the order of anti-suit injunction, courts should be very cautious and careful, and it should be granted sparingly and not as a matter of routine as such orders involve a court impinging on the jurisdiction of another court, which is not entertained very easily specially when it restrains the parties from instituting or continuing a case in a foreign court.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">PPN Power Generating Company Limited v. PPN (Mauritius) Company, 2004 SCC OnLine Mad 668 : (2005) 2 LW 389 : (2004) 5 CTC 1 : (2004) 4 Mad LJ 434 : (2005) 3 Arb LR 354 : (2006) 129 Comp Cas 849</span></div><p></p><p></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">25…it is beneficial to deal with the scope of “anti-suit injunction” in general which are culled out from various decisions. The same is not defined or dealt with in the Code of Civil Procedure.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(i) When a court restrains a party to a suit/proceedings before it from instituting or prosecuting a case in another court, including a foreign court, it is called “anti-suit injunction”.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(ii) Anti-suit injunction can be issued on the ground of “equity and good conscience”.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(iii) Anti-suit injunction can be granted “to avoid injustice”.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(iv) If foreign proceedings are “oppressive or vexatious”, such anti-suit injunction can be granted.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(v) To prevent the administration of justice being prevented for unjust ends of justice, anti-suit injunction can be granted with respect to foreign proceedings.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(vi) There must be an equity which entitles one party as against the other, to an injunction to restrain the other from proceeding in the foreign court.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(vii) To protect the courts’ own proceedings and process, anti-suit injunction can be granted.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(viii) If the bringing of the legal proceedings involved unconscionable conduct or unconscientious exercise of legal right, such anti-suit injunction may be granted.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(ix) Though the international anti-suit injunction operates only against the parties, it effectively restricts the jurisdiction of a foreign sovereign’s courts.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(x) International anti-suit injunction can be granted whenever there is a duplication of parties and issues and the court determines with the prosecution of simultaneous proceedings would frustrate the speedy and effective determination of the case.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(xi) There is no precious Rules governing the anti-suit injunction.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(xii) Only in the most compelling circumstances, a court should exercise its discretion to issue an anti-suit injunction.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(xiii) Such injunction is required to prevent irreparable and miscarriage of justice and to prevent the litigants’ evasion of the important public policies of the forum.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">(xiv) The Court should exercise such a power granting anti-suit injunction to enjoin foreign suits sparingly and only in very special circumstances.</span></div><p></p><p></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">44. The issues of Vexatious, oppressive and injustice were again dealt with at length in the subsequent case of Amchan Products Inc. Et Al v. Workers’ Compensation Board6. The Decision concerned 194 plaintiffs, of whom approximately 100 were British Colombia residents, who claimed damages in respect of injuries sustained as a result of, inter alia, inhalation of asbestos fibres. Notwithstanding the absence of any Texas nexus, proceedings were instituted in the Harrison Country Texas 71st Judicial District alleging negligence by reason of the defendant’s failure to warn of health risks associated with the use of asbestos. An injunction was sought restraining the Texas proceedings through the British Colombia Courts. Ultimately, this was granted on terms: “The defendants point out that no action has been commenced by them in British Colombia whereas in the cases referred to in argument there were actions commenced in both jurisdictions. I do not think that this is of any significance. If this fact was definitive then a complaint could always defeat an anti suit injunction by simply not commencing an action in a jurisdiction where the anti suit injunction is sought. That cannot be right.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Rajshree Sugars &amp; Chemicals Ltd. v. AXIS Bank Ltd., 2008 SCC OnLine Mad 746 : (2009) 1 CTC 227 : (2009) 1 LW 209 : (2008) 8 Mad LJ 261 : AIR 2011 Mad 144 : (2009) 2 BC 403.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Therefore when the invocation of the jurisdiction of a Court on the basis of a jurisdiction clause contained in an agreement, itself cannot be curtailed by an anti-Suit injunction, the question of injuncting a party from invoking the jurisdiction of a special forum statutorily created to decide certain disputes, does not arise. In the case on hand, Act 51 of 1993 creates a special Tribunal and confers jurisdiction upon the Tribunal to decide all claims made by Banks and Financial Institutions. Therefore the respondent cannot be injuncted from initiating any proceedings for recovery of any money due to them, before the Debts Recovery Tribunal.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">50. The general power of superintendence of the High Courts under Article 226/227 of the Constitution, over all Tribunals and other Forums constituted under special enactments, that was reinforced by the Constitution Bench decision in L. Chandrakumar’s case, does not make the Debts Recovery Tribunal, a Court subordinate to this Court. Therefore no injunction can be granted, for restraining the respondent-Bank from initiating any proceedings against the plaintiff herein before the Debts Recovery Tribunal.</span></div><p></p><p><i><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></i></p>', 'e56572dc42ea574b35e70b60e20e9c47.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-28', 1, '', '', '2020-12-28 18:37:34', '2020-12-28 22:40:49'),
(302, 'HlVEmL2KsM8zNKSvn8pkQZroA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Driver of heavy motor vehicle dying of heart attack at the end of day’s work. It is an ‘accident’ and a ‘personal injury’ ‘arising out of and during the course of employment’. Karnataka High Court.', '<h4></h4><p><b>The Divisional Controller NEKRTC vs Kiran and others. Miscellaneous First Appeal 201567/2017 decided on 23 December 2020. Justice Sunil S. Dutt Yadav and Justice P.N. Desai.</b><br><b><br>Judgment Link:</b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354716/1/MFA201567-17-23-12-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354716/1/MFA201567-17-23-12-2020.pdf<br></a><b><br>Relevant paragraphs:</b> <br><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">15. Insofar as the second contention of the appellant that the death due to heart attack cannot be construed to be an accident “arising out of” and “in the course of employment” is not a “personal injury” as per Section 3 of the Act, 1923, the following substantial question of law is framed as under: “Whether the ƒinding oƒ the ‘Commissioner’ holding that the death oƒ the employee was by accident arising out oƒ the course oƒ the employment is in accordance with Section 3 oƒ the Act 1923? “</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">18. Section 3 of the Act, 1923 provides for Employer’s liability in cases of “personal injury”&nbsp; provided&nbsp; a)&nbsp; the&nbsp; workman must have sustained personal injury; b) the personal injury must have been caused by an accident; c) the accident may have arisen out of and in the course of employment and d) the personal injury caused to the workman must have resulted either in the total or partial disablement of the workman for a period exceeding three days or it must have resulted in the death of the workman. The expression “personal injury” has not been defined. It need not involve physical trauma, but may include such injuries as disease, sunstroke, nervous collapse, traumatic neurosis, hysterical paralysis and neurasthenia. It may be external, or may be internal. In the case of chest pain arising during duty after remaining busy in strenuous work for many hours may be termed as an accidental internal injury. The word ‘personal injury’ being wider than bodily injury also includes all physical injuries which may be caused by an accident arising out of and in the course of employment. It also includes all mental stress and strains or mental tension or mental illness or psychological diseases, provided such mental conditions have arisen by accidents arising out of and in the course of employment. Similarly, a death from heat stroke has also been held to be personal injury entitling the dependant to compensation. It may also include nervous shock caused by an excitement and alarm resulting from a fatal accident to a fellow workman.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">19. The word, “accident” has not been defined in the statute but the judgment law by this time has adequately defined it. ‘Accident’ should be understood in the popular and ordinary sense as an unlooked for mishap or an untoward event which is not expected or designed. For the purpose of law relating to the compensation for personal injuries sustained by workman and the employer’s liability in that behalf includes any injury, which is not designed by the workman himself, and it is of no consequence that the injury was designed and intended by the person inflicting the same.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Case laws referred: National Insurance Company Ltd. Bangalore&nbsp; vs.&nbsp; Balawwa&nbsp; and&nbsp; Others 1993 (2) KLJ 406, United India Insurance Co. Ltd. Vs. Smt. Susheela&nbsp; 2004 (3) LLN 732, of General Manager, B.E.S.T. Undertaking, Bombay vs. Smt. Agnes AIR 1964 SC 193, Divisional Controller,&nbsp; NEKRTC,&nbsp; Gulbarga&nbsp; vs.&nbsp; Sangamma and Others 2005 (2) L.L.N. 776, Daya&nbsp; Kishan Joshi and Ors. Vs. Dynemech Systems Pvt. Ltd. 2018 (11) SCC 642, Leela Bai and Another vs. Seema Chouhan and Another (2019) 4 SCC 325, Poonam Devi and Ors. Vs Oriental Insurance Co.Ltd., (2020)&nbsp; 4 SCC 55, Malikarjun G.&nbsp; Hiremath&nbsp; vs&nbsp; Branch&nbsp; Manager,&nbsp; Oriental&nbsp; Insurance Co.Ltd., reported in 2009 ACJ 721 (SC).</span></div>|<br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">27. Therefore, for the last 22 years he was driving&nbsp; the bus which is admittedly a heavy motor vehicle belonging to the Transport Corporation of the appellant. It is also evident that the bus was driven in a city that too in day time. The very nature of work of the deceased that is driving heavy vehicle causes lot of stress and strain, that too in a big city like Kalaburagi which is a district head quarters. The drivers of heavy vehicle have to face lot of stress and strain because of movements large number of vehicles and public in big cities. The very nature of work of driving heavy vehicle continuously for more than 22 years definitely causes stress and strain, which is incidental to the nature of employment. It is not the case of appellants that he had any disease or he died due to some other reason. The medical reports and evidence placed by petitioners clearly indicates deceased died while on duty due to heart attack.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">31. Therefore, in view of the above discussions and in the light of the principles stated in the above referred decisions, if the petitioners-claimants contentions is considered then it can be safely concluded that deceased- Vijayakumar suffered “heart attack” which is “accident” and it is “personal injury” caused to him “arising out of” and “during the course of employment”.&nbsp; The ingredients of Section 3(l) of the&nbsp; &nbsp;Act,&nbsp; &nbsp;l923,&nbsp; &nbsp;are&nbsp; &nbsp;fully&nbsp; &nbsp;complied&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;respondents- claimants. The appellant has failed to show any grounds for interference by this Court. Keeping in mind the object and reasons for enacting the Workmen’s Compensation&nbsp; Act, which is a social welfare legislation meant for welfare of employer and employees, if the evidence placed before the Court, in the light of the well established principles regarding appreciation of evidence in such cases, then it is evident that the appeal being devoid of merits is liable to be dismissed. Hence, the substantial question of law is answered in affirmative.</span></div></p><p><i><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></i></p>', 'e1d7704ad77d189632c2f5d867a0f9df.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-12-23', 1, '', '', '2020-12-29 01:09:32', '2020-12-29 16:44:50'),
(303, 'A88nFKNsQksn341XifDQsT9N1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act. Under ‘Act Policy or Statutory Policy’ occupants of the vehicle cannot be considered as third parties. Insurance company is liable for the occupants only if the policy is comprehensive. Karnataka High Court.', '<p style=\"text-align: center; -webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px;\"></p><div style=\"text-align: justify;\"><span style=\"font-family: inherit; font-style: inherit; font-size: 0.875rem;\"><b>Divisional Manager vs Shamaraya and others.</b></span></div><b><span style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-style: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><div style=\"text-align: justify;\"><span style=\"font-family: inherit; font-style: inherit; font-size: 0.875rem;\">Miscellaneous First Appeal 31781/2010 and connected appeals decided on 22 December 2020.</span></div><div style=\"text-align: justify;\"><span style=\"font-family: inherit; font-style: inherit; font-size: 0.875rem;\">Justice Hanchate Sanjeevkumar.&nbsp;</span></div></span><span style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-style: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><div style=\"text-align: justify;\"><br></div></span><span style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-style: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><div style=\"text-align: justify;\"><span style=\"font-family: inherit; font-size: 0.875rem; -webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-style: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\">20</span><span style=\"font-size: 0.875rem;\">…under the ‘Act Policy/Statutory Policy/liability only policy’, the occupants of the car/jeep or pillion rider on motorcycle the risk is not covered as they are not to be categorized as third parties. But under the ‘Comprehensive Policy/Package Policy/ liability only policy’, the risk of occupants of the car/jeep or pillion on motorcycle are covered as the insured(owner) has entered into contract of insurance with the Insurer for covering risk at higher degree by making payment of extra premium above the horizon of covering risk under the ‘Statutory Policy’. Therefore, it is dictum in the above cited judgments if extra premium is not paid covering the risk of the occupants of the car/jeep or pillion on motorcycle, the Insurance Companies are not liable to indemnify the owner by making payment of compensation.</span></div></span><span style=\"-webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-family: inherit; font-style: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><div style=\"text-align: justify;\"><span style=\"font-family: inherit; font-size: 0.875rem; -webkit-tap-highlight-color: rgba(0, 0, 0, 0); border: 0px; font-style: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: initial;\"><br>22.&nbsp;</span><span style=\"font-size: 0.875rem;\">Chapter X of the M.V.Act stipulates regarding liability on the Insurance Companies ‘without fault’ in certain cases. Therefore, Chapter X of the M.V.Act is dealing with liability of payment of compensation on the principle “no fault liability’. Chapter XI of the M.V.Act deals with insurance of motor vehicles against third party risks. The provisions in Chapter XI and XII of the M.V.Act deals with procedures regarding award of compensation, liability on the owner and insurance companies etc. Section 145 of the M.V.Act gives the definitions. Clause (g) only stipulates the “third party” includes the Government (before amendment Act 2019). Section 146 of the M.VAct deals with necessity for insurance against third party risk. Section 147 of the M.V.Act stipulates regarding requirements of policies and limits of liability. Therefore, there are no definitions in the M.V.Act defining the term ‘Act Policy/Statutory Policy/liability only policy’ and ‘Comprehensive Policy/Package Policy’. These terminology are evolved and generated through the wordings used in the M.V.Act. Therefore, these terminologies are used which arose out of practice of purchase of insurance policies keeping in view the degree of covering risk. Covering risk of third party is mandatorly made by the statute. Unless a vehicle is made insured compulsorily so far as covering risk of third party, that vehicle shall not be used on the public places or even in private premises for plying. Therefore every insured shall purchase insurance policy compulsorily covering risk of third parties before making use the said vehicle for plying either in public place or in private place. Therefore, the terminology of ‘Act Policy/Statutory Policy/liability only policy’ is being used. Therefore, the contract of insurance between the insured and insurer in case of covering risk of third parties is compulsorily made and for this the owner of the vehicle has to pay a minimum amount of premium compulsorily as this type of insurance policy is called as ‘Act policy/Statutory Policy/liability only policy’. Whereas, if the owner intends to cover higher degree of risk above the covering risk of third parties so as to include covering risk of occupants in the car/jeep or pillion rider on the motorcycle or damaged caused to the vehicle the owner has to pay higher amount of premium covering the risk comprehensively. Therefore, above the degree of covering the risk of third parties, if the owner intends to cover risk on higher degree as above stated it is because of on own volition of insurer and insured. Therefore, the degree of covering risk of covering third party only or covering higher degree of risk that depends upon payment of extra premium. Therefore if extra premium is paid on the own volition of the insured (owner) then it covers higher degree of risk, otherwise not.</span></div></span></b><p></p>', 'b1ee94af25ba4bacdfda031b232f7c13.JPG', '6d0ee108468c2f47346a027b930728c1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-10', 1, '', '', '2020-12-31 17:18:57', '2023-01-10 13:27:29'),
(2552, 'BJgIIOisX5GEQJ1VIQOeB6Lrz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Alienation of the re-granted \'Service Inam Land\' from the period 1:2:1963 to 7:8:1978 is valid and permission for sale is only a formality since the Deputy Commissioner is bound to give permission. Karnataka High Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>T.V. Gopala Reddy and others Vs The Deputy Commissioner and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 26138 of 2017 decided on 15 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice C.M. Poonacha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. It is the case of the Petitioner that one Sri.D.S.Bachappa\r\nhad acquired the property to an extent of 03 acres 17 guntas of\r\nthe land (excluding 18 guntas of Karab land) in Sy. No.15\r\nsituated at Doddadsarahalli village, Kasaba Hobli, Shidlaghatta\r\nTaluk, Chikkaballapura District (hereinafter referred to as the\r\n\'said property\') vide two registered Sale Deeds dated\r\n14.11.2008 and 05.02.1969 for valuable consideration from\r\none Sri Chikkathottilappa and his family members. Consequent\r\nto the sale, the Revenue Records in respect of the said property\r\nwas transferred in the name of said Sri.D.S.Bachappa. That\r\nsaid property is Thoti Service Inam Land and after coming into\r\nforce of the Inams Abolition Act, on an application made, the\r\nsame was re-granted in the name of Sri.Chikkathottilappa and\r\nothers on 25.02.1984. The mutation entries were also </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">transferred in the name of said Sri.Chikkathottilappa and\r\nothers.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3. The Vendor of the Petitioner Sri D.S.Bachappa filed an\r\nAppeal before the Assistant Commissioner, Chikkaballapura\r\nchallenging the endorsement dated 17.06.2005 issued by the\r\nTahsildar mutating the revenue records in favour of the regrantee Sri Chikkathottilappa. The Assistant Commissioner\r\nvide order dated 26.04.2006, allowed the appeal by relying\r\nupon the Full Bench judgment of this Court passed in the case\r\nof Syed Basheer Ahmed Vs. State of Karnataka1\r\n.\r\nThereafter the mutation entries were changed in the name of\r\nsaid D.S.Bachappa.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. The Petitioner purchased the said property from its owner\r\nSri D.S.Bachappa vide registered Sale Deed dated 12.6.2014\r\nand he was put in possession of the same. Respondent Nos.7\r\nand 8 being the wife and son of the Sri.Chikkathottilappa filed\r\na Revision Petition before the Deputy Commissioner\r\nChikkaballapura under Section 136(3) of the Land Revenue Act\r\n(for short \'the Act\'). </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. I have considered the submissions made by the counsel\r\nfor the Petitioner and perused the material available on record.\r\nThe question that arise for considers is</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>\'Whether the relief sought for in the\r\nWrit Petition is liable to be granted?\' </b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. The essential facts not being disputed inasmuch as the\r\nacquisition of title by the Vendor of the Petitioner vide\r\nregistered Sale Deeds dated 14.11.1968 and 05.02.1969 and\r\nre-grant in favour of Sri Chikkathottilappa on 25.02.1984; that\r\nthe appeal filed by the Vendor of the Petitioner under Sections\r\n25 and 49 of the Act in which the re-grantee -\r\nSri.Chikkathottilappa was also arrayed as Respondent No.2 was\r\nallowed vide order dated 26.04.2006. Subsequent to the said\r\norder of the Assistant Commissioner, the Mutation records\r\nchanged in favour of the Vendor of the Petitioner. Thereafter,\r\nvide registered Sale Deed dated 12.06.2014, the Petitioner\r\nacquired right, title and interest in the said property. After an\r\ninordinate delay of 8 years the wife and children of\r\nSri.Chikkathottilappa preferred a Revision Petition on\r\n30.07.2014 under Section 136(3) of the Act. It is forthcoming\r\nfrom the index of the Revision Petition (a copy of which is\r\nproduced as Annexure-B to the Writ Petition) that an\r\napplication under Section 5 of the Limitation Act, 1963 was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">also filed along with the said Revision Petition. The Petitioner\r\nwho was arrayed as Respondent No.6 in the said Revision\r\nPetition entered appearance and contested the same by filing\r\nobjections to the main petition as well as the delay application.\r\nHowever, the Deputy Commissioner vide order dated\r\n03.04.2017, allowed the Revision Petition filed by the legal\r\nheirs of Sri Chikkathottilappa.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8. The question is as to whether the alienee from the holder\r\nof the village office under an alienation which took place after\r\nthe appointed date on which the Karnataka Village Offices\r\nAbolition Act, 1961 came into force (01.02.1963) and before\r\nthe Amendment Act vide Act No.13/1978 came into force\r\n(07.08.1978) would acquire title even if the re-grant is made\r\nafter coming into force of the Amendment Act was the subject\r\nmatter of adjudication in the case of Syed Basheer Ahmed\r\n(supra)?\' A Full Bench of this Court held that the alienation of\r\nthe re-granted \'Service Inam Land\' from the period 01.02.1963\r\nto 07.08.1978 is valid and permission for sale is only a\r\nformality as the Deputy Commissioner was bound to give\r\npermission. The Assistant Commissioner in the order dated </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">26.04.2006 passed in the appeal filed by the Vendor of the\r\nPetitioner, noticing the law laid down by the Full Bench\r\njudgment of this Court in the case of Syed Basheer Ahmed\r\n(supra) and the period as laid down in the said judgment,\r\napplying the same to the facts of the present case, wherein it\r\nwas noticed that the Vendor of the Petitioner acquired title to\r\nthe property vide registered Sale Deeds dated 14.11.2008 and\r\n05.02.1969 and that the order of re-grant was dated\r\n25.02.1984, allowed the Appeal filed by the Vendor of the\r\nPetitioner.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. The Deputy Commissioner vide its order dated\r\n03.04.2017, after noticing the relevant facts although referred\r\nto the judgment in the case of Syed Basheer Ahmed (supra) <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">misinterpreted the same and held that by virtue of the period\r\nstipulated in the case of Syed Basheer Ahmed (supra)\r\nallowed the Revision Petition.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. It is clear from the aforementioned, that the Deputy\r\nCommissioner erroneously interpreted the law laid down in the\r\ncase of Syed Basheer Ahmed (supra) and the said order\r\ndated 03.04.2017 is liable to be set aside. Hence, the\r\nquestion framed for consideration is answered in the\r\nAffirmative, in favour of the Petitioner.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Writ Petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'cb461e7e0f9038101a7060f802d43347.JPG', 'd053606d12694fbb8f0cd796f99d50b7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-11', 1, '', '', '2023-01-10 13:57:47', '2023-01-11 06:59:46');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(304, 'bW0G1vT3UogVyw5EPBMc8r9L8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Time barred debt cannot be revived by mere issuance of a cheque. Issuance of cheque in such cases is not an acknowledgment of debt. Karnataka High Court.', '<p></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The Bidar Urban Co-operative Bank Ltd. vs Giris. </span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Criminal Appeal 200057/2016 decided on 17 December 2020.</span></div><div style=\"text-align: justify;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Justice P.N. Desai. </span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">29. The contention of learned counsel for complainant that, there is no bar under law to repay the time barred debt and it is not open to the drawer of the cheque to contend that he is not liable as the debt was time barred is also not tenable as such contention is either pleader or any legally admissible evidence was led by complainant-Bank. Such time barred debt cannot be called as legally recoverable debt so as to attract penal provision under section 138 of N.I Act.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br>30. The Kerala High Court in a decision reported in 2001 Crl.L.J 24 in case of Sasseriyal Joseph Vs  Devassia, held that section 138 of the Act is attracted only if there is legally recoverable debt and it cannot be said that time barred debt is legally recoverable debt. The said Judgment rendered by Kerala High Court in Sasseriyil Joseph’s case was challenged before the Hon’ble Supreme Court in Special Leave to Appeal (Crl.) No.1785/2001 by Hon’ble Supreme Court by Judgment dated:10-09-2001 affirmed the said view of Kerala High Court.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br>31. Further the High Court of Andhra Pradesh in case of Girdhari Lal Rathi Vs P.T.V Ramanujachari and another reported  in  1997  (2)  Crimes  658  held that, in case of cheque issued for time barred debt which is dishonoured the accused cannot be convicted under section 138 of Negotiable Instrument Act on the ground that the debt was not legally recoverable.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Therefore in view of the principles stated in those decisions the arguments of the learned counsel for the appellant that the said cheque can be construed as a promise to pay time barred debt is also not tenable.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">In view of the principles stated in the above referred decision, it is evident that the provisions of Section 25(3) of the Indian Contract Act, 1872 is not applicable to the facts and evidence in this case.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Further as per section 13 of N.I Act “negotiable instrument”  means a  “promissory   note”  bill  of exchange”, or “cheque” payable either to order or to bearer. The definition of promissory note as stated in section 4 of the N.I Act indicates that, it contains an unconditional undertaking signed by the maker, to pay a sum of money only to, or to the order of, a certain person, or to the bearer of instrument. The definition of “bill of exchange” as stated in Section 5 and the definition of cheque contain only an unconditional order which clearly distinguish them from the definition of promissory note. In promissory note there must be an express undertaking upon the face of instrument to pay the money. Therefore in promissory there is unconditional undertaking i.e., promise to pay, but the definition of bill of exchange and cheque contain only an unconditional order. This distinction needs to be kept in mind while considering whether the cheque itself constitutes a promise in writing by the accused so as to bring that cheque within the ambit of section 25 (3) of the Indian Contract Act 1872 and penal provision under section 138 of N.I Act.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br>39. In view of the principles stated in the above referred decision and discussion it is evident that the penal provision of Section 138 of the N.I.Act is applicable only to the cheques which are issued for the discharge in whole or in part, of any debt or other liability, which according to Explanation must be a legally enforceable debt or other liability. A cheque given in discharge of a time barred debt will not constitute an unconditional undertaking or promise in writing either expressly or impliedly so as to attract the criminal offence under section 138 of N.I Act.</span></div><p></p>', '8fe10b07198a41374be648f0a84682e5.jpeg', 'f5f4bede4c976393cecbc125936424c0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-09', 1, '', '', '2020-12-31 18:24:23', '2024-01-01 11:21:42'),
(3941, '7WcxtylQlc8uLhxXMyT8rwqXS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Municipal Corporations Act. Power to remove encroachment cannot be used to unilaterally determine encroachment of Government land and call upon the alleged encroacher to vacate and deliver possession. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Ashok Gurunath Dani Vs Hubli Dharwad Municipal Corporation.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 63008 of 2011 decided on 17 November 2021.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice N.S. Sanjay Gowda.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">3. The Commissioner, Hubballi-Dharwad Municipal Corporation in his order dated 19.05.2011 has stated that Deputy Commissioner had passed an order directing encroachment made on Government lands and it had been found that petitioner and others had encroached upon an extent of 59.68 square meters in R.S.No.9999 of Unakal village. It is also stated that there was a direction issued by the President of Government Lands Encroachment Committee to remove the encroachment and consequently, the petitioner&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was required to remove the encroachment made. The Commissioner has stated that the order is being passed in exercise of power under Section 288D of the Karnataka Municipal Corporations Act, 1976 (for short, ‘the KMC Act’).</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">5. In fact, if the land in question is a public premise, proceedings under the said Act will have to be initiated. It is settled law that even a person in wrongful possession of an immovable property cannot be dispossessed except in accordance with law.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><i>6. The Commissioner has stated in his order that he possesses the power to remove the encroachment under Section 288D of the K.M.C. Act. Section 288D of the Act reads as under: 288-D. Commissioner may without notice remove encroachment.- Notwith-standing anything contained in this Act, the Commissioner may, without notice, cause to be removed,-</i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><i>(a) any wall, fence, rail, step, booth or other structure or fixture which is erected or set up in contravention of the provisions of Section 288-A;</i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><i>(b) any stall, chair, bench, box, ladder, bale or any other thing whatsoever, placed on deposited in contravention of Section 288- B;</i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><i>(c) any article, whatsoever, hawked or exposed for sale in any public place or in any public street in contravention of Section 288-C and any vehicle, package, box, board, shelf or any other thing in or on which such article is placed, or kept for the purpose of sale.”&nbsp;</i><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. As could be seen from the Section 288D of the K.M.C. Act, the power available to the Commissioner to&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">remove encroachments are only in respect of the following, which have been done without his permission:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">(a) Structures or fixtures which cause obstruction in public streets as envisaged under S. 288A of the Act.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">(b) Any placement or deposit upon any public street or upon any open channel, drain or well in any street or in any public place, any stall, chair, bench, box, ladder, bale or other things so as to form an obstruction thereto or encroachment thereto.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(c) Hawking or exposing for sale any article whatsoever in any public place or in any public street</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">8. This power available under Section 288D of the K.M.C. Act cannot obviously be extended to unilaterally determine that there has been an encroachment of Government land and initiate proceedings calling upon the alleged encroacher to vacate and deliver possession. It is thus clear that provisions to which the Commissioner traces his power to pass the impugned order does confer him with the authority to pass the impugned order and arrive at the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">conclusion that there is an encroachment of a Government land which is required to be removed.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Writ petition is accordingly allowed.&nbsp;</span></p>', '3ec9443f4aff2c027c93b9a1eab80a89.JPG', '9ce0a96519edeb8d702b540faded26f1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2024-01-01', 1, '', '', '2024-01-01 13:53:43', '2024-01-01 13:53:43'),
(305, 'BSRRqCRZRkmuIHJ1vDtIPeTnr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transfer of Property Act. A conditional gift becomes complete only on compliance of the conditions in the deed.', '<p></p><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">S. Sarojini Amma vs Velayudhan Pillai Sreekumar, Civil Appeal 10785 of 2018. Decided on 26 October 2018.</b></div><br><b>Judgment Link: </b><br><a href=\"https://main.sci.gov.in/supremecourt/2017/37674/37674_2017_Judgement_26-Oct-2018.pdf?fbclid=IwAR0I-qAA4QYAA7yzrFRl0JA4qmBuov9m6k7Yq2W4YUjOYSVPzBpQLyw7Mz4\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2017/37674/37674_2017_Judgement_26-Oct-2018.pdf?fbclid=IwAR0I-qAA4QYAA7yzrFRl0JA4qmBuov9m6k7Yq2W4YUjOYSVPzBpQLyw7Mz4<br></a><br><b>Held: </b><br><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">18. We are in agreement with the decision of this Court in Reninkuntla Rajamma (supra) that there is no provision in law that ownership in property cannot be gifted without transfer of possession of such property. However, the conditions precedent of a gift as defined in Section 122 of the Transfer of Property Act must be satisfied. A gift is transfer of property without consideration. Moreover, a conditional gift only becomes complete on compliance of the conditions in the deed.</span></div><div style=\"text-align: justify;\"><br></div><p style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">19. In the instant case, admittedly, the deed of transfer was executed for consideration and was in any case conditional subject to the condition that the donee would look after the petitioner and her husband and subject to the condition that the gift would take effect after the death of the donor. We are thus constrained to hold that there was no completed gift of the property in question by the appellant to the respondent and the appellant was within her right in cancelling the deed.<br></span><i style=\"font-size: 0.875rem; text-align: left;\"><br><b>Compiled by, S.Basavaraj, Daksha Legal</b></i></p><span style=\"font-weight: bolder; font-style: italic;\"><i style=\"font-size: 0.875rem;\"><br></i><br></span><i><p style=\"\"><br></p></i><p></p>', '7fc3f66878c5c1a408eb2e973f5a1c6c.jpg', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-03', 1, '', '', '2021-01-04 02:43:35', '2021-01-05 01:32:42'),
(306, 'mtqiQPq1LJXCIvVm8RphCb1Tp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transfer of Property Act. Property can be gifted even without transfer of possession of such property. Supreme Court. ', '<h4><b>S. Sarojini Amma vs Velayudhan Pillai Sreekumar.&nbsp;</b></h4><h4><b>Civil Appeal 10785 of 2018. Decided on 26 October 2018.</b></h4><h4><b>Justice Arun Mishra and Justice Indira Banerjee.</b></h4><h4><b><br></b></h4><h4><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>18. We are in agreement with the decision of this Court in Reninkuntla Rajamma (supra) that there is no provision in law that ownership in property cannot be gifted without transfer of possession of such property. However, the conditions precedent of a gift as defined in Section 122 of the Transfer of Property Act must be satisfied. A gift is transfer of property without consideration. Moreover, a conditional gift only becomes complete on compliance of the conditions in the deed.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br>19. In the instant case, admittedly, the deed of transfer was executed for consideration and was in any case conditional subject to the condition that the donee would look after the petitioner and her husband and subject to the condition that the gift would take effect after the death of the donor. We are thus constrained to hold that there was no completed gift of the property in question by the appellant to the respondent and the appellant was within her right in cancelling the deed.</b></span></div></h4>', '297ae156559488a25477b5643fdd07ca.jpeg', '6bc2af8819e935aa69449c73a6cdab7a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-30', 1, '', '', '2021-01-04 02:45:33', '2023-01-30 14:27:14'),
(2607, '6LuP0tvIYITskUVe10gDsrM4Z', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act. Provisions of the Limitation Act apply to petitions claiming compensation even beyond the period of six months. Kerala High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Akshay Raj Vs Ministry of Law and Justice and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>OP (MAC) 6 of 2023 decided on 23 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Amit Rawal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. O.P (MAC) No.6 of 2023 has been preferred against\r\nthe order dated 30.11.2022 of the MACT, North Paravur\r\ndismissing the claim petition filed under Section 166 of the\r\namended Motor Vehicles Act being barred by the limitation.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Petitioner, Akshay Raj, aged 26 years preferred a\r\nclaim petition before the learned MACT on the ground that on\r\n26.5.2022 while driving a motor vehicle bearing registration\r\nNo.KL-P-42P 7106 at about 8.40 a.m had met with an accident\r\nand suffered injuries, resulting into registration of FIR 590 of\r\n2022. Learned MACT vide impugned order, dated 30.11.2022\r\nrejected the claim application/petition simply on the ground that\r\nthe claim petition was filed beyond the period of six months ie.,\r\non 28.11.2022 as the limitation expired on 25.11.2022. and thus\r\nthere was a delay of almost three days. It is contended that\r\nthe manner and the mode in which the order has been passed is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">wholly alien to settled principles as the learned MACT was\r\nrequired to frame the issues, for the question of limitation is a\r\nmixed question of fact and law.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. Section 166(3) does not exclude the applicability of\r\nthe limitation Act 1963 and therefore the provisions of Section\r\n29(2) of the limitation Act 1963 would squarely be applicable for\r\nthe reason that on perusal of provisions of sub Section 4 of\r\nSection 166, it is evident that even in the absence of claim\r\npreferred by a claimant, the Claims Tribunal shall treat any\r\nreport of accidents by police/investigation officer forwarded to it\r\nunder section 159 as an application for compensation under this\r\nAct. Section 159 enjoins an obligation upon the police officer\r\nduring the investigation to prepare an Accident Information\r\nReport for facilitating the settlement of claim in such formal\r\nmanner within three (3) months containing such particular and\r\nsubmit to the claim Tribunal or any other agency as prescribed.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. On cumulative reading of the aforementioned Rules,\r\nAnnexure XIII r/w sub Section 4 of Section 166, it is evident\r\nthat it is not necessary for a claimant to institute claim petition\r\neither through himself, in case of death, legal representative or\r\nthrough agent, if incapacitated/disabled, but, even the\r\ninvestigating officer while conducting the investigation in\r\nrespect of an accident involving the motor vehicle can also\r\nsubmit an Interim Accident Report (IAR) within a period of fifty\r\n(50) days of the accident and Detailed Accident Report (DAR)\r\nwithin a period of ninety (90) days and also seek “Extension”\r\nwhich can be granted by the MACT for the reasons stated\r\ntherein. Once the legislature envisaged the extension of time to\r\nfile the DAR for treating the same as a claim petition for\r\ncompensation as per the provisions of Rule 21 of Annexure –\r\nXIII, there cannot be any discrimination against the claimants\r\nfor filing the claim petition through either of the modes as\r\nreferred above. In other words, there cannot be any bar for\r\ninstitution of the claim petition through any of the persons\r\nreferred to, beyond the period of six months.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. In the instant case, as per the scheme of the Motor\r\nvehicles Act and the Central Motor Vehicles Rules, r/w Annexure\r\nXIII extracted above, the cumulative effect is that the statute do\r\nnot oust the applicability of the provisions of the Limitation Act,\r\nparticularly, when submission of Detailed Accident Report <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(DAR), filed by the investigating officer can be treated as a claim\r\npetition and the extension has been provided under Rule 17 of\r\nAnnexure XIII.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd3d7d671195131194cffcb499388f86d.JPG', '25d74cda90daf17108a1de2419c043de.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-01', 1, '', '', '2023-01-30 15:22:36', '2023-02-01 06:59:00'),
(307, 'kzTRxTYDuTugC3O6z69McJhhd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“The conduct of the trial shocks our judicial conscience.” Karnataka High Court orders retrial of mentally unstable accused.', '<p></p><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Mounesh vs The State of Karnataka. Criminal Appeal 200117/2017 decided on 21 December 2020.</b></div><br><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Judgment Link:&nbsp;</b></div><div style=\"text-align: justify;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/355911/1/CRLA200117-17-21-12-2020.pdf\" target=\"_blank\"></a><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/355911/1/CRLA200117-17-21-12-2020.pdf\" target=\"_blank\" style=\"background-color: rgb(255, 255, 255); font-size: 0.875rem;\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/355911/1/CRLA200117-17-21-12-2020.pdf</a><br></div><p></p><p><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Relevant paragraphs:&nbsp;</b></div><span style=\"font-size: 0.875rem; text-align: justify;\"><br>22. After thorough perusal of the records, certain doubts arose in the mind of this Court, more particularly, in the light of the fact that the last session of treatment undergone by the under trial/accused, was immediately prior to the commencement of the trial. On perusal of the order sheet, it reflected that the trial commenced shortly after the accused returned from treatment at National Institute of Mental Health and Neuro Sciences, Bengaluru. As a doubt arose with regard to the fact as to whether the trial had been fairly conducted, we requested the presence of the counsel who had been appointed by the District Legal Services Authority to represent the accused before the trial.</span></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">30. Pursuant to our interaction with the Prison Officials and their Doctor and upon the direction of this Court as afore-extracted, the medical opinion in the case of the accused was placed before the Court along with certain enclosures pertaining to the treatment of the accused at NIMHANS during the period of trial.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">32. At this juncture, we are constrained to note the failing on the part of the trial Court. It appears that the trial Court has blindly proceeded on the information dated 25.03.2015 without even endeavouring or even attempting to satisfy itself as to whether the accused was `legally fit’ to stand trial. It was incumbent upon the trial Court to satisfy itself that the accused was capable of comprehending the various stages of trial, more particularly, the evidence that was put against him and as to whether he had understood the same and further as to whether he has accordingly instructed his counsel to defend his rights. The trial Court&nbsp; has miserably failed in complying with this requirement. It is sad to note that the trial Court has acted in a mechanical manner without even being alive to the consequence that would follow in the absence of an effective defence.&nbsp; The right to defence is not an illusory right and the duty cast on the Court to ensure fair trial is not optional but mandatory. The conduct of the trial, to state the least, shocks our judicial conscious. Even a simple attempt by the trial Court to cross check with the defence counsel would have been suffice to alert the Court to the circumstances surrounding the trial.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">33. …The various stages of a trial are nothing but a pursuit in the search of the truth. In this direction, we are of the&nbsp; firm opinion that the trial Court has miserably failed. The&nbsp; trial Court being well aware of the mental condition of the accused immediately prior to the commencement of the trial, it was incumbent on the trial Court to ascertain as to whether the accused was capable or incapable of making his defence.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br>49. In terms of the law extracted by the Hon’ble Supreme Court in the aforesaid case, it becomes unmistakably clear that the accused who stands trial must have a sound and mental condition capable of comprehending the material being put against him, failing which the trial against an accused who is suffering from mental infirmity becomes vitiated. In terms of the law declared by the Hon’ble Supreme Court and the opinion of the medical experts, with regard to the mental conditions of the accused, which are extracted herein above, the trial against the accused will have to be held to be vitiated on the ground of mental instability of the accused during trial and a retrial is to be ordered.</span></div><i><div style=\"text-align: justify;\"><br></div><b>Compiled by S. Basavaraj, Advocate, Daksha Legal</b></i><p></p>', '79164be23b1085c674edbaa6ddb99c80.PNG', NULL, 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-21', 1, '', '', '2021-01-04 23:13:12', '2021-01-05 01:23:49'),
(2181, 'nA487pn2VZcAOMXVCjjzhHlBI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'There is an essential distinction between mistake and trickery. Deliberate suppression of withdrawal of earlier suit in later suit cannot be construed as a mistake. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Yashoda Vs Sukhwinder Singh and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8247 of 2009 decided on 12 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b style=\"font-family: Calibri, sans-serif; font-size: 12pt;\">Justice B.R. Gavai and </b><font face=\"Calibri, sans-serif\"><b>Justice</b></font><b style=\"font-family: Calibri, sans-serif; font-size: 12pt;\"> C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. Brief facts giving rise to the present appeal are as under:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>As per Kartar Singh, the original plaintiff (since deceased), the grandfather of respondent Nos.1 and 2, he had entered into an agreement to sell the agricultural lands on 10th January 1993. As per the said agreement, the sale deed was to be executed before 15th March 1994. According to the plaintiff, a family settlement also took place between him and the appellant ­defendant in the month of November 1993. It is to be noted that the plaintiff initially filed a suit for declaration against the appellant­ defendant being Civil Suit No. 141 of 1994 on 10th February 1994. The said suit was filed on the basis of the said family settlement that took place in the month of November 1993. On the basis of the application filed by the plaintiff, the said suit was dismissed as withdrawn on 7th May 1994.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. The plaintiff filed the present suit on 2nd June 1994 being Suit No. 536 of 1994 seeking specific performance on the basis of alleged agreement to sell dated 10th January 1993. The appellant ­defendant resisted the suit by filing written statement on 29th October 1994. In the written statement, the appellant­ defendant categorically denied the existence and/or the execution of any agreement to sell. It was specifically contended by the appellant­ defendant that the second suit was not maintainable in view of withdrawal of the first suit. The plaintiff filed his Replication on 14th November 1994 contending that the first suit for declaration was filed only to avoid payment of stamp duty and registration charges.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>25. As observed, there is an essential distinction between mistake and trickery. In the present case, it is sought to be argued on behalf of the respondents­ plaintiffs that the averment in paragraph (15) of the plaint was with regard to a lis on the basis of the agreement. It is submitted that the earlier suit was not based on the agreement and as such, there was no suppression. We find the argument to be unsustainable. We are of the view that such a statement was made as a trickery so as to obtain the judgment by misleading the court. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>29. It could thus be seen that this Court has held that what would be a ‘material fact’ would depend upon the facts and circumstances of each case. It has also been held that ‘material fact’ would mean material for the purpose of determination of the lis. It has also been held that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. In the present case, filing of the earlier suit and withdrawal thereof without liberty to file another suit was a material fact. Undisputedly, the respondents ­plaintiffs had failed to approach the court with clean hands. As such, we find that the said judgment would be of no assistance to the case of the respondents­ plaintiffs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>30. Insofar as the judgment in the case of Harjas Rai Makhija (supra) is concerned, in the facts of the said case, the Court held that though the appellant Makhija had an opportunity to prove the allegation of fraud when he filed an application under Order XLI Rule 27 of the CPC, he missed that opportunity right up to this Court. He took a second shot at alleging fraud and filed another suit. However, he failed in the trial court as well as the High Court as he could not produce any evidence to prove that fraud was committed by the respondent when she obtained the decree dated 4th October 1999. As such, the said judgment would not be applicable to the facts of the present case.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>31. Insofar as the judgment in the case of M/s Chaturbhai M. Patel and Co. (supra) is concerned, it was the case of defendant that some amount of fraud had been played on the defendant by the collusion of the plaintiff with his father. This Court, concurring with the findings of the High Court, found that the circumstances relied on by the appellant were not at all conclusive to prove the case of fraud. The present case is a case of suppression of a material fact with regard to filing and withdrawal of earlier proceedings. As such, the said judgment would not be applicable to the facts of the present case</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>32. Similarly, the facts in the case of Svenska Handelsbanken (supra) were also totally different and as such, reliance on the said judgment is also of no assistance to the case of the respondents­ plaintiffs in the present case.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>33. In that view of the matter, we find that the Appellate Court has grossly erred in reversing the well ­reasoned judgment and decree of the trial court. As already observed herein above, the judgment of the High Court is passed without application of mind. The High Court has gone on a premise that the trial court had decreed the suit and the Appellate Court has dismissed the appeal. This is factually erroneous </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>34. In the result, we pass the following order:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i) The appeal is allowed;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>35. Pending application(s), if any, shall stand disposed of in the above terms. No order as to costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3b229340f6d5cee3e13730e22be9fc7f.jpg', '717920ac9a5b8065b7c0e394e03e7009.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-14', 1, '', '', '2022-09-13 18:27:15', '2022-09-14 08:15:35'),
(309, 'sWZmWiFyRr1sWgiBqkvpeY4pv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitral process cannot be interfered under Article 226 and 227 of the Constitution of India. Supreme Court.', '<p><b>Bhaven Construction vs. Executive Engineer Sardar Sarovar Narmada Nigam Ltd.&amp;Anr. Civil&nbsp; Appeal 14665 of 2015 decided on 06/01/2021<br></b><br><b>Relevant paragraphs: <br></b><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">10. Having heard both parties and perusing the material available on record, the question which needs to be answered is whether the arbitral process could be interfered under Article 226/227 of the Constitution, and under what circumstance?</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">17. In any case, the hierarchy in our legal framework, mandates that a legislative enactment cannot curtail a Constitutional right. It is therefore, prudent for a Judge to not exercise discretion to allow judicial interference beyond the procedure established under the enactment. This power needs to be exercised in exceptional rarity, wherein one party is left remediless under the statute or a clear ‘bad faith’ shown by one of the parties. This high standard set by this Court is in terms of the legislative intention to make the arbitration fair and efficient.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">20. Viewed from a different perspective, the arbitral process is strictly conditioned upon time limitation and modeled on the ‘principle of unbreakability’. If the Courts are allowed to interfere with the arbitral process beyond the ambit of the enactment, then the efficiency of the process will be diminished.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">26. In view of the above reasoning, we are of the considered opinion that the High Court erred in utilizing its discretionary power available under Articles 226 and 227 of the Constitution herein.</span></div><i><br><b>Compiled by Sumana Chamarty, Advocate, Daksha Legal.</b></i></p>', '50756a00197127113f002caa70c3eb96.jpg', '691c039345c04e16ec4ba2c57b4cd62b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-06', 1, '', '', '2021-01-07 03:29:28', '2021-01-07 17:31:31'),
(310, 'EA757kxRRpbQubbjiTmfDqiV2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Accident Cases. Supreme Court recognizes the work labour and sacrifices of homemakers in fixation of notional income', '<p><b>Kirti &amp; Anr. Etc&nbsp; vs. Oriental Insurance Company Ltd. CIVIL APPEAL NOS.19­20 of 2021, [Arising out of Special Leave Petition(C) Nos.18728­29 of 2018] decided on 05/01/2021.</b><br><br><b>Judgment Link: </b><a href=\"https://main.sci.gov.in/supremecourt/2018/16762/16762_2018_32_1501_25229_Judgement_05-Jan-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/16762/16762_2018_32_1501_25229_Judgement_05-Jan-2021.pdf<br></a><br><b>Relevant paragraphs: <br></b><br></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">16. Returning to the question of how such notional income of a homemaker is to be calculated, there can be no fixed approach. It is to be understood that in such cases the attempt by the Court is to fix an approximate economic value for all the work that a homemaker does, impossible though that task may be. Courts must keep in mind the idea of awarding just compensation in such cases, looking to the facts and circumstances [See&nbsp; R.K. Malik v. Kiran Pal, (2009) 14 SCC 1].</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">19. However, it must be remembered that all the above methods are merely suggestions. There can be no exact calculation or formula that can magically ascertain the true value provided by an individual gratuitously for those that they are near and dear to. The attempt of the Court in such matters should therefore be towards determining, in the best manner possible, the truest approximation&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;value&nbsp; &nbsp;added&nbsp; &nbsp;by&nbsp; &nbsp;a&nbsp; &nbsp;homemaker&nbsp; &nbsp;for&nbsp; &nbsp;the purpose of granting monetary compensation.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">20. Whichever method a Court ultimately chooses to value the activities of a homemaker, would ultimately depend on the facts and circumstances of the case.&nbsp; The Court needs to keep in mind its duty to award just compensation, neither assessing the same conservatively,&nbsp; &nbsp;nor&nbsp; &nbsp;so&nbsp; &nbsp;liberally&nbsp; &nbsp;as&nbsp; &nbsp;to&nbsp; &nbsp;make&nbsp; &nbsp;it&nbsp; &nbsp;a&nbsp; &nbsp;bounty&nbsp; &nbsp;to claimants [National&nbsp; &nbsp;Insurance&nbsp; &nbsp;Company&nbsp; &nbsp;Limited&nbsp; &nbsp;v.&nbsp; &nbsp;Pranay Sethi, (2017) 16 SCC 680;&nbsp; Kajal v. Jagdish Chand, (2020) 4 SCC 413].</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">25. When it comes to the second category of cases, relating to notional income for non­earning victims, it is my opinion that the above principle applies with equal vigor, particularly with respect to homemakers. Once notional income is determined, the effects of inflation would equally apply. Further, no one would ever say that the improvements in skills that come with experience do not take place in the domain of work within the household. It is worth noting that, although not extensively discussed, this Court has been granting future prospects even in cases pertaining to notional income, as has been highlighted by my learned brother, Surya Kant, J., in his opinion [Hem Raj v. Oriental Insurance Company Limited, (2018) 15 SCC 654; Sunita Tokas v. New India Insurance Co. Ltd., (2019) 20 SCC 688].</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">26. Therefore, on the basis of the above, certain general observations can be made regarding the issue of calculation of notional income for homemakers</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">b. Taking into account the gendered nature of housework, with an overwhelming percentage of women being engaged in the same as compared to men, the fixing of notional income of a homemaker attains special significance. It becomes recognition of the work, labour and sacrifices of homemakers and a reflection of changing attitudes. It is also in furtherance of our nation’s international law obligations and our constitutional vision of social equality and ensuring dignity to all.</span></div><p></p><p><i><b>Compiled by Sumana Chamarty, Advocate, Daksha Legal</b></i></p>', 'dd0434d86874450647aedd9ca45096cf.jpg', '210e531c42bb3f3d13506b154c485c7e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-05', 1, '', '', '2021-01-07 03:35:21', '2021-01-07 17:29:27'),
(311, 'J4jI29DiZNawbI3m0ZWp1UZ0U', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Trial. Expert handwriting opinion can be relied only when it is supported by internal and external evidence. Law on the point discussed. Karnataka High Court.', '<p><b>M.N. Chinnaiah and another vs State of Karnataka.</b></p><p><b> Criminal Appeal 693/2010 decided on 15 December 2020.</b></p><p><b>Justice Mohammad Nawaz<br><br></b></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>32. In the&nbsp; case&nbsp; of&nbsp; ‘Alamgir&nbsp; Vs. State [NCT, DELHI]’ [supra] it is held by the Hon’ble Apex Court that ‘experts opinion must always received with great caution and perhaps none so with more caution than the opinion of the handwriting expert. There is a profusion of presidential authority which holds that it is unsafe to base a conviction solely on experts opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. It would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence’.</b></span></div><div style=\"text-align: justify;\"><b><br></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>38. In the case of ‘Chennadi Jalapathi Reddy Vs. Baddam Pratapa&nbsp; Reddy&nbsp; [dead]&nbsp; through&nbsp; legal&nbsp; representatives&nbsp; &nbsp;and&nbsp; &nbsp;another’ [supra], relied upon by the respondent’s counsel it is once again held that the Court must be cautious while evaluating experts opinion, which is a weak type of evidence and not substantive in nature. It may not be safe to solely rely upon such evidence, and Court may seek independent and reliable corroboration in the facts of a given case, as a general rule of prudence.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><b>Conviction set aside</b></span></div><p></p>', '7cd99be22fdb7d8591a82d4aeb883db8.JPG', 'bcdc43a90e3c1d1417ffa9ac885c29ad.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-13', 1, '', '', '2021-01-07 03:40:14', '2023-01-13 15:12:21');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(312, 'DxxbWj75yEAipm8M9GDpPsEW4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. The Constitutional Court would not interfere with the findings of the departmental enquiry except in a case of malafides or perversity. Law on the point reiterated. Supreme Court.', '<p><b>DEPUTY GENERAL MANAGER (APPELLATE AUTHORITY) AND OTHERS vs AJAI KUMAR SRIVASTAVA. f SLP(C) No(s). 32067­32068 of 2018. </b><br>Decided on 5 January 2021.<br><br><b>Judgment Link: </b><a href=\"https://main.sci.gov.in/supremecourt/2018/44259/44259_2018_39_1501_25311_Judgement_05-Jan-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/44259/44259_2018_39_1501_25311_Judgement_05-Jan-2021.pdf<br></a><br></p><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Relevant paragraphs</b></div><p></p><p></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">23. The power of judicial review in the matters of disciplinary inquiries, exercised by the departmental/appellate authorities discharged by constitutional Courts under Article 226 or Article</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">32 or Article 136 of the Constitution of India is circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and it is not akin to adjudication of the case on merits as an appellate authority.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">25. It is thus settled that the power of judicial review, of the Constitutional Courts, is an evaluation of the decision­ making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The Court/Tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority if based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority is perverse or</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">suffers from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the&nbsp;</span><span style=\"font-size: 0.875rem;\">examination of correctness or reasonableness of a decision of authority as a matter of fact.</span></div><div style=\"text-align: justify;\"><br></div><p style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">27. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry, the disciplinary authority may or may not agree with the findings recorded by the former, in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent may record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry.&nbsp;</span></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">28. It is true that strict rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere conjecture or surmises cannot sustain the finding of guilt even in the departmental enquiry proceedings.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem; text-align: left;\">29. The Constitutional Court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of malafides or perversity, i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with&nbsp;</span><span style=\"font-size: 0.875rem; text-align: left;\">objectivity could have arrived at that findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.</span><span style=\"font-size: 0.875rem;\"><br></span></div><div style=\"text-align: justify;\"><br></div><i><b>Compiled by S. Basavaraj, Advocate, Bangalore.</b></i><p></p>', 'b1d4f2242c98ff1ef2ffc679980c70a8.jpg', 'c5c85a1c045cea7dfb3215e6eddc3b30.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-05', 1, '', '', '2021-01-07 03:45:26', '2021-01-07 17:18:52'),
(313, '4dgR8akwPhUV46ZVWuakK3BT7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arms Act 1959. No prior sanction of the District Magistrate to prosecute is required if the prohibited arm is possessed for sale. Sanction required only in cases of mere', '<h4>Khadir Sab vs State of Karnataka. Criminal Petition 6173/2020 decided on 16 December 2020. Judgment <br><br>Link:<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354801/1/CRLP6173-20-16-12-2020.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354801/1/CRLP6173-20-16-12-2020.pdf</a></h4><h4><b>Relevant paragraphs: </b><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">9.6 In the present facts and circumstances, the allegation against the petitioner is that he was in possession of prohibited arm with&nbsp; an intention to sell the same. The said o</span><span style=\"font-size: 1.3125rem;\">ffence does come under Section 3 of the Arms Act, 1959 but comes within the purview of Section 7 of the Arms Act.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">9.7.&nbsp; In terms of Section 39 of Arms Act,&nbsp; sanction is required only in respect of an offence under Section 3 of the Act that is only regarding possession of the Arm. No such sanction is required as contemplated in respect of an offence under Section 7 of the Act where prohibited arm is in possession and/or the same is proposed to be sold.</span></div></h4><h4><span style=\"font-size: 1.3125rem;\"><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></span><br></h4><div><br></div>', '5dfd5c17ddea3836ccb6d07010aacb9e.jpg', 'fb6540210f0283b7a9342ca4afc8c271.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-08', 1, '', '', '2021-01-08 23:20:11', '2021-01-13 00:17:16'),
(314, 'jEvxF66Q30p05bi3KBRNLPNz5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Information Technology Act. An intermediary or its directors and officers are not liable for any action or inaction on part of seller making use of facilities provided by the intermediary in terms of a website or market place. Karnataka High Court.', '<h4><b>KUNAL BAHL and another vs STATE OF KARNATAKA. </b></h4><h4><b>CRIMINAL PETITION NO.4676 OF 2020. Decided on 7 TH DAY OF JANUARY, 2021. </b></h4><h4><b>Justice Suraj Govindaraj<br></b></h4><h4><b><br></b></h4><h4><span style=\"font-size: 1.3125rem;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>16.1 At the time of taking Cognisance and issuance of process, the Court taking Cognisance is required to pass a sufficiently detailed order to support the conclusion to take cognisance and issue process, in terms of the discussion above. The judicious application of mind to the law and facts of the matter, should be apparent on the ex-facie reading of the order of Cognisance.</b></span></div></span><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>16.2 When the accused is having an office, branch office, corporate office, sales office or the like within the Jurisdiction of the Magistrate where the offence has been committed and or continues to be committed, there would be no requirement for any enquiry under Section 202 of Cr.P.C. It would, however, be required for the Magistrate to in the order of issuance of summons/process record as to why the enquiry under Section 202 of Cr.P.C is not being held.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>16.3 In the event of accused being an individual, if the said accused has a temporary residence within the Jurisdiction of the Magistrate, again merely because he does not have a permanent residence, there is no enquiry which is required to be conducted under Section 202 of Cr.P.C. It would, however, be required for the Magistrate to in the order of issuance of summons/process record as to why the enquiry&nbsp; under Section 202 of Cr.P.C is not being held.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>16.4 When the accused has no presence within the Jurisdiction of the Magistrate where the offence has been committed, then it would be mandatory for an enquiry under Section 202 of the Cr.P.C to be held.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>16.5 In the event of accused being aggrieved by the issuance of Summons, the said accused immediately on receipt of the Summons and/or on appearance before the Magistrate is required to make out his grievance before the Magistrate Court and/or by petition under Section 482 Cr.P.C. If there is any delay, in such challenge and/or if challenge has not made within reasonable time, the accused would not be entitled to raise the grievance that the procedure under Section 202 of Cr.P.C. has not been followed on account of delay and latches.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>16.6 Only a Court in which the accused has a presence, like registered office, branch office, corporate office or the like could exercise Jurisdiction as regards an offence relating to an e-commerce transaction.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>16.7 This of course would not apply to a Cyber Crime, which comes under global jurisdiction according to the IT Act, 2000. This means that any cyber-crime complaint can be registered with any of the cyber cells in India, irrespective of where the crime was originally committed.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>16.8 An intermediary as defined under Section 2(w) of the Information Technology Act or its directors/officers would not be liable for any action or inaction on part of a vendor/seller making use of the facilities provided by the intermediary in terms of a website or a market place.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>16.9 An intermediary would not be responsible and/or liable for sale of any item not complying with the requirements under the Drugs and Cosmetics Act, 1949 on its platform since the essential ingredients of Section 18 (1)(c) of the Act not&nbsp; having been fulfilled. Neither Snapdeal nor its Directors can be prosecuted for the offence under Section 27(b)(ii)&nbsp; of the Act.</b></span></div></h4>', '530476b94c9b90acf6f100344329a00c.JPG', '78b7445a3619cf9d7de3c0ec65256eb4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-07', 1, '', '', '2021-01-09 00:00:14', '2023-02-07 15:10:54'),
(315, '1L0iYO7Ox8LHZvZrZu4GgXRYP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Maritime Zones of India Regulation of Fishing by Foreign Vessels Act 198. Drifting of Vessel into maritime zone of another country due to unforeseen circumstances does not constitute an offence. Karnataka High Court.', '<p><b>Ababakar Ansari Miya and others vs State of Karnataka and others. Writ Petition 11248/2020 decided on 21 December 2020.</b><span style=\"font-size: 1.3125rem;\"><br><br><b>Judgment Link: </b><br></span><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354911/1/WP11248-20-21-12-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354911/1/WP11248-20-21-12-2020.pdf</a><br><br><b>Facts: </b>Straight from any movie ! Please read<br><br><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Relevant paragraphs. </b><span style=\"font-size: 0.875rem;\">7. Sri.Kethan Kumar, learned counsel or the petitioners would submit that the petitioners are but fishermen, who unfortunately due to act of nature were stuck on the high seas due to a cyclone, the diesel of their Vessel got depleted and finally drifted into maritime zone of India. There is no allegation against the petitioners as regards any other offences nor have they involved themselves in any particular offences. Merely because they came into the maritime zone, they have been in custody for more than fourteen months, as such, he submits that there being no offences which are made out against the petitioners, the proceedings are required to be quashed and they are to be deported back to their country of origin.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">11. The facts are not in dispute. The only issue is as to whether at this stage it can be said from the material on record that the petitioners have committed any particular offence requiring their detention and/or prosecution ?</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">12. Merely because during the course of fishing, due to unforeseen circumstances and acts of nature if their Vessels were to drift into the maritime Zone of a particular country, it cannot strict sensu be said that there is any offence made out against them requiring their incarceration and/or criminal trial.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">13. These are common occurrences which happen to all fishermen fishing in the international waters. Many a times it is seen that fishermen of our country have drifted into maritime zone of another country and sometimes action is taken against them and sometimes no action is taken against them. This being so, for the reason that unless there is a willful intent or motive associated with such act and/or any intent to commit any other offence, fishermen per se ought not to be prosecuted for just drifting into a maritime zone of another country.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Petition allowed.</span></div><div style=\"text-align: justify;\"><br></div><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></p>', '5121326ba24b95e3c57266dd1c7de908.jpg', '7898200c31cfb7c244f40bf370ee5580.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-08', 1, '', '', '2021-01-09 01:01:14', '2021-01-13 00:05:27'),
(316, 'EYUta4MkR2U0mojOkS2EWWfLq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Exercise of any power having effect of destroying the Constitutional institution besides being outrageous is dangerous to the democratic setup of this country. Karnataka High Court.', '<p><span style=\"font-size: 0.875rem;\"><b>Kalpana Manjunath and others vs State of Karnataka and others. Writ Petition 117245/2020 decided on 5 January 2021.</b><br><br></span><b>Judgment Link: </b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/356948/1/WP11725-20-05-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/356948/1/WP11725-20-05-01-2021.pdf</a><br><br>26. The issue raised before this Court, when considered in the backdrop of the Constitutional provisions, the words of the Apex Court in the case of Ravi Yashwant Bhoir Vs. District Collector, Raigad and Others (2012) 4 SCC 407 could be quoted with authority. It was held that the amendment in the Constitution by adding parts IX and IXA confers upon the local self-Government a complete autonomy on the basic democratic unit unshackled from official control. Thus, exercise of any power having effect of destroying the Constitutional institution besides being outrageous is dangerous to the democratic setup of this country. The democratic setup of the country has always been recognized as a basic feature of the Constitution, like other features eg., supremacy of the Constitution, rule of law, principle of separation of powers, power of judicial review etc. It is not permissible to destroy any of the basic features of the Constitution even by any form of amendment, and therefore, it is beyond imagination that it can be eroded by the executive or its whims without any reason. The&nbsp; Constitution accords full faith and credit to the act done by the executive in exercise of its statutory powers, but they have a primary responsibility to serve the nation and enlighten the citizens to further strengthen a democratic State.<br><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></p>', 'f7a8ed3433cdd64d84b6aa4e70789588.jpg', '104277dc4e81e55c44824ab40a918985.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '20521-01-08', 1, '', '', '2021-01-09 01:05:36', '2021-01-13 00:03:07'),
(317, 'aT9HHz3NCOPhoruTXt9hpG5rK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bhoodan and Vidyadan Scheme. Owner cannot seek return of land once gifted. He can only seek direction for proper utilization of the land. Karnataka High Court.', '<h4><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 4px; margin-left: 0px; font-stretch: normal; font-size: 22px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><span class=\"s1\" style=\"font-family: UICTFontTextStyleBody; font-weight: bold;\">Keerthi Kumar vs State of Karnataka and another.&nbsp;</span></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 4px; margin-left: 0px; font-stretch: normal; font-size: 22px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><span class=\"s1\" style=\"font-family: UICTFontTextStyleBody; font-weight: bold;\">Writ Petition 6278/2018 decided on 8 December 2020.</span></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 4px; margin-left: 0px; font-stretch: normal; font-size: 22px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><span class=\"s1\" style=\"font-family: UICTFontTextStyleBody; font-weight: bold;\">Justice Suraj Govindaraj.&nbsp;</span></p></h4><div><span style=\"font-size: 0.875rem;\"><b><br></b></span></div><h4><p><b>15.15. …, once the land has been gifted under Bhoodan and Vidyadan scheme, there is no right which is created in the donor or the legal representatives of donor to seek for return of the lands gifted for any reason whatsoever. Once the land is gifted to the Government, it is the responsibility of the Government to put the land to the use for which it was granted by way of a gift. At the most, the donor or the legal representatives of the donor can seek for a direction to direct the Governmental authorities to put the land to use for which it was so gifted, they cannot seek for return of the land granted by way of a gift since the gift is complete on the gift deed being executed, there cannot be return of the land.\r\n15.17. The Resumption of the land being not capable of being done on account of Karnataka Bhoodan Yagna (Repeal) Act, 1962, it cannot be now contended by the petitioner that the land is required to be resumed.&nbsp;</b></p></h4>', 'b30ffa38c5fe1da7e5517fb03c2313e0.jpeg', '87db8c8d0ad3abf0a67f5fcfa558a78d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-10', 1, '', '', '2021-01-09 01:18:23', '2022-09-10 16:33:23'),
(318, 'DRNd5Oym2n1DeFTyvtkMPXZOt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court strikes down rule enabling collection of fee from transporter of minor minerals from other States into State of Karnataka.', '<h4><p><span style=\"font-size: 0.875rem;\"><b>Sri. Sai Keshava Enterprises and others vs The State of Karnataka and others. Writ Petition 8851/2020 and connected matters decided on 7 January 2021.</b></span></p><b>Judgment Link: </b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357096/1/WP8851-20-07-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357096/1/WP8851-20-07-01-2021.pdf</a></h4><p><span style=\"font-size: 1.3125rem;\"><b>Relevant paragraphs:&nbsp;<br></b></span></p><div style=\"text-align: justify;\">1. The main issue involved in these writ petitions is: “Whether the State Legislature has legislative competence to enact sub Rule (7) of Rule 42 of the Karnataka Minor Mineral Concession Rules, 1994, authorizing collection of entry fee from a&nbsp; person who transports certain category of minor minerals from other States with valid transit permit to the State of Karnataka?<span style=\"font-weight: 400;\">”</span></div><p></p><p></p><p></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">25. A careful perusal of the impugned sub-rule in the present petitions shows that it deals with only transportation of processed building stone materials from other States with&nbsp; a valid permit. It provides for levy of amount of&nbsp; Rs.70/-&nbsp; per&nbsp; metric ton from the person who transports processed building stone material as mentioned in the impugned sub-rule from other States to State of Karnataka with a valid permit.&nbsp;</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">32……the State Legislature is empowered to make a plenary legislation by invoking&nbsp; Entry-66&nbsp; of&nbsp; List-II.&nbsp; However, the subject of regulating mining operations outside the State is not included in entry-66, List-II. Entry-66 is about prescribing fees in respect of any of the matters in list-II.&nbsp; Entry-23 in List-II is about regulation of mines and&nbsp; mineral development subject&nbsp; to the provisions of List-I with respect to regulation and development under the control of the Union. The field is occupied by the said Act of 1957 enacted by the Union Government which does not provide for levy of fees&nbsp; as&nbsp; provided in the impugned sub-rule. Moreover, the State Government has not enacted any law in terms of entry-66&nbsp; of&nbsp; the said list. Assuming that such a power to levy fee&nbsp; is vested&nbsp; in the State Legislature by virtue of Entry-66 of List-II, a rule making power can be exercised provided that a law is enacted by the State Legislature authorizing such a levy by&nbsp; making rules. No such law has been enacted.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">33. As the State Government has no legislative competence to make rules for levy of transportation fee or charge on minerals lawfully excavated in other States, it is not necessary for us to go into the question of quid pro quo regarding&nbsp; existence of co-relation between the fees collected and the services being rendered.</span></div><div style=\"text-align: justify;\"><br></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 0.875rem;\">Compiled by S. Basavaraj Advocate Daksha Legal.</b></div></b><p></p>', '6eaab1092a78c2d8c26166bd3b4ea5f8.png', '21a4990722a914d4e57483fc63959ce6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-08', 1, '', '', '2021-01-09 01:22:06', '2021-01-12 23:54:42'),
(319, '6pdd9rG4GlTgCbv3FspzPo41N', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Selection. Court would not sit in the armchair of experts to assess or award marks for publications except in cases of arbitrariness or malafides. Karnataka High Court.', '<p><span style=\"font-size: 0.875rem;\"><b>Dr. Prashant Babaji vs The State of Karnataka and others. Writ Petition 10807/2018 decided on 30 December 2020.</b><br></span><br><b>Judgment Link: </b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357135/1/WP10807-18-30-12-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357135/1/WP10807-18-30-12-2020.pdf</a><br><br><b>Relevant paragraphs: </b><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">14. It is trite law that this Court under Article 226 of the Constitution of India would be loathe to interfere with the marks awarded by a selection committee to the candidates who appear before them, save in exceptional circumstances of demonstrable arbitrariness or malafides. The case at hand is not where arbitrariness is writ large by way of any demonstration or malafides have been pleaded. The prayer sought in terms of the grounds urged is that the award of marks to the third respondent is on the higher side, both on journals and the interview. I cannot telescope my imagination to the minds of the selection committee to hold the marks awarded being excessive or insufficient. It is for the experts to award marks for publications. This Court while exercising judicial review would not sit in the armchair of experts and assess or award marks for such publications.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">16. Cases referred to: Dalpat Abasaheb Solunke v. B.S. Mahajan reported in (1990) 1 SCC 305, Basavaiah (Dr.) v. Dr. H.L. Ramesh reported in (2010) 8 SCC 372, Neelima Misra v. Harinder Kaur Paintal [(1990) 2 SCC 746, Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan [(1990) 1 SCC 305, Chancellor v. Dr.Bijayananda Kar [(1994) 1 SCC 169, J&amp;K&nbsp; State&nbsp; Board&nbsp; &nbsp;of Education v. Feyaz Ahmed Malik [(2000) 3 SCC 59], DentalCouncilof India v. SubhartiK.K.B.Charitable Trust [(2001) 5 SCC 486], Medical Council of India v. Sarang [(2001) 8 SCC 427], B.C.Mylarappa v. Dr.R. Venkatasubbaiah [(2008) 14 SCC 306, Rajbir Singh Dalal (Dr.) v. Chaudhari Devi Lal University [(2008) 9 SCC 284, All India Council for Technical Education v. Surinder Kumar Dhawan [(2009) 11 SCC 726].</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">17. In the light of the law laid down by the Apex Court in the aforesaid cases, the plea of the petitioner that there is arbitrariness in awarding marks under the “fixed parameters” and in the interview would not hold water. As observed hereinabove, under the “fixed parameters” both the petitioner and the third respondent have been given equal marks. How much marks is to be given under those parameters is beyond the pane of judicial review. The other ground with regard to marks awarded in the interview being on the higher side to the third respondent also cannot be gone into as no malafides are pleaded and proved by the petitioner.</span></div><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></p>', '15618e2ad3c0b0554d535f2beab07e13.jpg', '93515515eea09ab631cea6017284509e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-08', 1, '', '', '2021-01-09 01:25:09', '2021-01-12 23:47:16'),
(320, 'lF5dVwx0lHV6NnPphLNXk6vbQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Trial. Closing defence of accused when counsel remains absent violates Articles 21 of the Constitution of India. Court must ensure alternate legal assistance to accused. Karnataka High Court.', '<p><span style=\"font-size: 0.875rem;\"><b>GOVINDARAJU @ KUTTI vs THE STATE OF KARNATAKA. CRIMINAL APPEAL No.1459/2019. Decided on 23 DECEMBER, 2020.</b><br></span><br><b>Judgment Link: </b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357186/1/CRLA1459-19-23-12-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357186/1/CRLA1459-19-23-12-2020.pdf</a><br><br><b>Paragraphs: </b><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">22. We have come across several cases, wherein the trial Courts during trial when the accused counsel was absent, closes the cross-examination of the defence as nil and proceed to pass the judgment of conviction and order of sentence against the accused. It is against the fundamental rights guaranteed to the accused persons under Articles 21, 22 and 39A of the Constitution of India as well as the provisions of Sections 303 and 304 of the Code of Criminal Procedure. In case the counsel for the defence was not present on the particular day, when the matter was posted for cross-examination or not at all appeared for ever to cross-examine the prosecution witnesses, it is the duty cast on the Court to ensure that opportunity should be given to the accused to engage the services of counsel or it is the duty of the Court to ensure to provide free legal assistance to the accused by appointing advocate from the Legal Services Authority, in order to provide fair trial.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">23. In some of the criminal cases, the accused might be in judicial custody or might be suffering from poverty or similar circumstances and not able to engage counsel on his behalf. In those circumstances, the Court should act as Societal parents and ensure fair trial is provided before passing the judgment of conviction and order of sentence against the accused persons. Because of the mistake committed by the learned counsel for the accused, the accused should not be denied opportunity to cross- examine the prosecution witnesses.&nbsp; Providing a legal assistance is a constitutional mandate under Articles 21, 22(1) and 39A of the Constitution of India and further, Section 304 of the Code of Criminal Procedure provides for legal assistance to an accused on State expenditure.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">24. In view of the above, in the present case, the trial Court is not justified in convicting accused without providing an opportunity to the accused to cross-examine the prosecution witnesses, which is nothing but denial of fair trial.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">25. Our view is fortified by the dictum of the Hon’ble Supreme Court in the case of Ashok Debbarma&nbsp; v.&nbsp; State&nbsp; of&nbsp; Tripura reported in (2014)4 SCC 747, wherein the Hon’ble&nbsp; Supreme Court held at paragraphs 35 to 38 as under:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">“35. Can the counsel’s ineffectiveness in conducting a criminal trial for the defence, if established, be a mitigating circumstance favouring the accused, especially to escape from the award of death sentence. The counsel for the appellant, without causing any aspersion to the defence counsel appeared for the accused, but to only save the accused from the gallows, pointed out that the records would indicate that the accused was not meted out with effective legal assistance. The learned counsel submitted that the defence counsel failed to cross-examine PW 1 and few other witnesses. Further, it was pointed out that the counsel also should not have cross-examined PW 17, since he was not put to chief-examination. The learned counsel submitted that the appellant, a tribal, coming from very poor circumstances, could not have engaged a competent defence lawyer to conduct a case on his behalf. Placing reliance on the judgment of the US Supreme Court in Strickland v. Washington [80 L Ed 2d 674 : 466 US 668 (1984)] , the learned counsel pointed out that, under Article 21 of our Constitution, it is a legal right of the accused to have a fair trial, which the accused was deprived of.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">36. Right to get proper and competent assistance is the facet of fair trial. This Court in M.H. Hoskot v. State of Maharashtra [(1978) 3 SCC 544 : 1978 SCC (Cri) 468] , State of Haryana v. Darshana Devi [(1979) 2 SCC 236], Hussainara Khatoon (4) v. State of Bihar [(1980) 1 SCC 98 : 1980 SCC (Cri) 40] and Ranjan Dwivedi v. Union of India [(1983) 3 SCC 307 : 1983 SCC (Cri) 581], pointed out that if the accused is unable to engage a counsel, owing to poverty or similar circumstances, trial would be vitiated unless the State offers free legal aid for his defence to engage a counsel, to whose engagement, the accused does not object. It is a constitutional guarantee conferred on the accused persons under Article 22(1) of the Constitution.&nbsp; Section 304 CrPC provides for legal assistance to the accused on&nbsp; &nbsp;State&nbsp; &nbsp;expenditure.&nbsp; &nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">38. Right to get proper legal assistance plays a crucial role in adversarial system, since access to counsel’s skill and knowledge is necessary to accord the accused an ample opportunity to meet the case of the prosecution. In Strickland case [Strickland v. Washington, 80 L Ed 2d 674 : 466 US 668 (1984)] , the US Court held that a convicted defendant alleging ineffective assistance of counsel must show not only that counsel was not functioning as the counsel guaranteed by the Sixth Amendment so as to provide reasonable effective assistance, but also that counsel’s errors were so serious as to deprive the defendant of a fair trial. The Court held that the defiant convict should also show that because of a reasonable probability, but for counsel’s unprofessional errors, the results would have been different.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">26. For the reasons stated above and in the light of the principles enunciated in the dictums of the Hon’ble Supreme Court stated supra, we answer the point raised in the present criminal appeal in the affirmative holding that the appellant – accused has made out a case to remand the matter to the trial Court for providing an opportunity to him to cross-examine the prosecution witnesses, in order to fulfill the constitutional mandate as provided under Articles 21, 22(1) and Article 39A of the Constitution of India as well as the provisions of Sections 303 and 304 of the Code of Criminal Procedure.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Appeal allowed. Matter remanded to trial court.</span></div><div style=\"text-align: justify;\"><br></div><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></p>', '841da6806db5f5755479cd1c13bc1017.png', 'cebad2d2ebafd770501ab17002f46a0c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-08', 1, '', '', '2021-01-09 01:27:29', '2021-01-12 23:44:15'),
(321, 'XEF8W8igpfai6Edu1dSbF1hCH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contract Act. Fraud on third parties committed by employees during the course of their action and while working on behalf of the employer. Employer is liable for such actions. Karnataka High Court.', '<h4><p><span style=\"font-size: 0.875rem;\"><b>Electronic Research Private Ltd vs Canara Bank and others. Regular First Appeal 253/2000 decided on 22 December 2020.</b></span></p><p><b>Judgment Link:<br> <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357268/1/RFA253-00-22-12-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357268/1/RFA253-00-22-12-2020.pdf</a></b></p><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Held:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Para 74. Section 238 of the Indian Contract Act, contemplates that if any misrepresentation is made or fraud committed by agents, acting in the course of their business for their principal, have the same effect of agreements made by the agents as if such misrepresentations or fraud had been made or committed by the principals but misrepresentation&nbsp; made or frauds committed&nbsp; by&nbsp; agents. The misrepresentation and frauds alleged to have been committed by the employees during the course of their action while working on behalf of the company, a principal, it is within their authority while acting upon and therefore such acts binds the principal employer. Master is liable for the fraud committed by the employees whether it was for the benefit of Master or not as held by the Hon’ble Apex Court in State Bank of India vs Smt. Shyama Devi reported in AIR 1978 SC 1263.</span></div><p></p><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">76. Plaintiff has to own the responsibility for the fraud committed by its employees. Indisputedly, no amount was credited to the Government revenue towards the customs duty liable to be paid on the imported goods which were cleared on the basis of fake TR-6 challans. The customs duty paid on&nbsp; demand&nbsp; made by the department, at any stretch of imagination cannot be held to be double payment. No person can siphon off the&nbsp; Government money and enrich themselves causing loss to&nbsp; the&nbsp; revenue.&nbsp; Indisputably, no credit is made to the account of the Government revenue. The primary liability is with the plaintiff – company to discharge the same</span><br></div></h4>', '826faf74f28d675dffd9859d09c09463.png', 'b804dae0f3f75c3ff77fab67ee4246ac.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-09', 1, '', '', '2021-01-10 01:15:27', '2021-01-12 23:30:30'),
(322, 'ZC5E72JGh73a74nq6Z47taprO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constitution of India. After 1993 amendments elections to local bodies can be questioned only by way of election petition. Writ petitions are not maintainable. Karnataka High Court.', '<h4></h4><h4><span style=\"font-size: 0.875rem;\"><b>Geetha vs The Returning Officer. Writ Petition 15005/2020 decided on 17 December 2020.</b></span></h4><br><b>Judgment Link:</b> <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357013/1/WP15005-20-17-12-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357013/1/WP15005-20-17-12-2020.pdf</a><br><br><b>Full Judgment:</b><br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">The grievance of the petitioner is that her nomination for the election to the Guddekoppa Gram Panchayat, Thirthahalli Taluk, has been rejected by the Returning Officer by order dated 13.12.2020 at Annexure-A. This writ petition is filed seeking a direction or to issue a writ of certiorari to quash the impugned order dated 13.12.2020 at Annexures-A.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">2. When this Court called upon the learned counsel for the petitioner to make his submission regarding the maintainability of the writ petition in view of the statutory bar imposed under Section 15 of the Karnataka Grama Swaraj and Panchayat Raj Act, 1993 which provides that no election to fill a seat in the gram panchayat shall be called in question except by an election petition filed before the designated court within whose territorial jurisdiction the panchayat area concerned or the major portion of the panchayat area concerned is constituted by any candidate at said election, learned counsel submits that statutory bar under section 15 does not come in the way of this Court in exercising its extraordinary jurisdiction under Article 226 of the Constitution of India. Learned counsel placed reliance on a decision of the Division Bench in the case of Ramakrishnappa vs./Presiding Officer reported in ILR 1991 KAR 4421.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">3. This Court has gone into the decision cited by the learned counsel for the petitioner. The decision rendered by the Division Bench on 06.11.1991 was in the backdrop of there being on express constitutional provision pertaining to the election of Panchayats, Municipalities, Municipal Corporations etc. The judgment was rendered having regard to Article 329 of the Constitution which dealt with the elections to the Parliament and State Legislature. There being no constitutional provisions, the Division Bench proceeded to hold that Article 329 could not be invoked with respect to the election to a Co-operative society.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">4. The Constitution of India has undergone substantial change in the year 1993. Provisions covering the elections of Panchayat, Municipalities, Municipal Corporations and Co-operative Societies have been incorporated under separate chapters. Chapter IX which pertains to the panchayats was added into constitution w.e.f., 24.04.1993. Article 243-O clearly bars interference of Court in electoral matters pertaining to the panchayats. Article 243-O (b) provides that no election to any panchayat shall be called in question except by an Election Petition presented to such authority and in any such manner as is provided for by or under any law made by the Legislature of the State.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">5. Consequently, the writ petition is not maintainable. If the petitioner is aggrieved by rejection of the nomination, she can proceed to file a Election Petition duly constituted before the designated court as provided under Section 15 of the Act.</span></div>Accordingly, the writ petition stands dismissed.<br><h4><span style=\"font-size: 1.3125rem;\"><br><b>Compiled by S.Basavaraj, Advocate, Daksha Legal.</b></span><br></h4>', '28557fb2d728f6a9d5c554cdb7513426.jpg', '9307d1e28f54ad3ac0908873adf03579.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-09', 1, '', '', '2021-01-10 01:19:11', '2021-01-13 00:22:07'),
(323, 'nIyhVCGHvSG6qmGqyr23RTfhs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transfer of Property Act. A gift of immovable property can be effected without transfer of possession. Supreme Court.', '<h4>S. Sarojini Amma&nbsp; vs Velayudhan Pillai Sreekumar<br>Civil Appeal No. 10785 of 2018†, decided on October 26, 2018. see (2019) 11 SCC 391<br>See paragraphs: 13, 16 and 17<br>Full Judgement in PDF format <a href=\"http://2019-11-scc-391\" target=\"_blank\">2019-11-scc-391&nbsp;</a></h4><div><br></div>', '3cb0a6174faae1e692d08f8dbb4cd8d0.jpg', '0d03da5f9e27a90df9454430d3d686a9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-09', 1, '', '', '2021-01-11 02:54:29', '2021-01-11 02:54:29'),
(324, 'GtK0SLBibKw21odi7ab0z2VVz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Easements Act 1882. Easement of necessity in relation to a pathway. It should be an absolute necessity. If there exits any other way there can be no easement of necessity. Supreme Court.', '<h4><span style=\"font-size: 0.875rem;\">Sree Swayam Prakash Ashramam vs G. Anandavally Amma. Civil Appeal No. 7 of 2010, decided on January 5, 2010. Reported in (2010) 2 SCC 689.</span><br></h4><h4>Full Judgment in PDF form. See paragraph 33.<br></h4><h4><br><a href=\"http://2010-2-scc-689\" target=\"_blank\">2010-2-scc-689</a></h4>', 'f40b6350b7681a59ff54fc9ff12f5eea.jpg', 'e443f62ebe50de59377028a488dabc2e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-10', 1, '', '', '2021-01-11 02:57:40', '2021-01-11 02:57:40'),
(325, '6HeCdmjnNP0vZPBjQQCHq0cK7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. A Government Corporation cannot entrust departmental enquiry to Lokayukta unless it adopts Karnataka Civil Services Classification Control and Appeal Rules. Karnataka High Court.', '<p><span style=\"font-size: 0.875rem;\"><b>G.B.Devaraj and others vs State of Karnataka and others.&nbsp; Writ Petition 8374/2019 decided on 11 December 2020.</b></span><br><b><br>Judgment Link: </b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/356867/1/WP8374-19-11-12-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/356867/1/WP8374-19-11-12-2020.pdf<br></a><br><b>Relevant paragraphs:</b> <br><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">16. The Conduct Rules of the State defines and regulates the conduct of a Government servant which is hedged by certain conditions with regard to conduct or otherwise and what would amount to misconduct. The conduct Rules being made applicable under Rule 39(b) cannot empower the Corporation to entrust an enquiry to the hands of the Lokayukta as there is no provision in the conduct Rules for such entrustment.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">17. The power of entrustment of an enquiry to the hands of the Lokayuka is dealt with under KCS(CCA) Rules which not only contains provision for such entrustment, but also deals with elaborate procedure for conduct of disciplinary proceedings against Government Servant.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">Therefore, KCS(CCA) Rules without being specifically adopted cannot and would not mean that the said Rules can be applied, bringing it, within the sweep of Rule 39 of the said Rules of the Corporation, unless KCS(CCA) Rules is specifically adopted by a decision of the Board of the Corporation. In view of the preceding analysis, I hold that power to entrust the enquiry to the hands of the Lokayukta is not available with the Corporation. Therefore, the entrustment of the enquiry to the hands of the Lokayukta by the Managing Director of the Board will have to be held as an act without jurisdiction.</span></div><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></p>', 'b6faa8a6f673497a231dffc30633b958.jpg', 'f1b1d65c1ef4c21a2b2f73556173a6ab.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-10', 1, '', '', '2021-01-11 03:01:13', '2021-01-13 00:21:33');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(326, '4TsGv8Xlpg62w0XfHt5fp4zsz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Copyright. In cases of infringement of copyright normally an injunction must follow. Mere delay in bringing action is not sufficient to defeat grant of injunction in such cases. Supreme Court.', '<h4><span style=\"font-size: 0.875rem;\"><b>Midas Hygiene Industries (P) Ltd. v. Sudhir Bhatia, (2004) 3 SCC 90</b></span><br></h4><h4><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Full Judgment:</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">IN THE SUPREME COURT OF INDIA</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">BEFORE S.N. VARIAVA AND H.K. SEMA, JJ.)</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">MIDAS HYGIENE INDUSTRIES (P) LTD. AND ANOTHER- Appellants;</span></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Versus</b></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">SUDHIR BHATIA AND OTHERS – Respondents.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Civil Appeal No. 107 of 2002, decided on January 22, 2004</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">This appeal is against the judgment of the High Court dated 20-9-2001.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Briefly stated, the facts are as follows:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The appellants filed a suit for passing off and for infringement of copyright. In the suit an application for interim injunction under the provision of Order 39 Rules 1 and 2 of the Code of Civil Procedure was filed. A learned Single Judge of the High Court in order dated 31-7-2001 noted the following facts:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“(i) The defendant admittedly worked with the plaintiff prior to launching its business.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(ii) The plaintiff’s prior and prominent user of the phrase Laxman Rekha as a part of the description of crazy lines as shown by the documents i.e. advertisements at least of 1991 produced by the plaintiff showing prominent user of the phrase Laxman Rekha.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(iii) The defendant’s non-denial of the plaintiff’s assertions in the notice dated 28-2-1992 to the effect that the plaintiff used the phrase ‘Laxman Rekha’ on its product.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(iv) The plaintiff’s assertion of the ownership of copyright in the packaging containing the words ‘Laxman Rekha’.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(v) The defendant has not chosen to give an explanation why he adopted ‘Magic Laxman Rekha’.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(vi) The defendant’s averments in Suit No. 1967 of 1996 that the product Magic Laxman Rekha was used by it since 1992.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(vii) The defendant’s statement in the application made to the Trade Mark Registry on 30-5-1996 for registration of trade mark ‘Magic Laxman Rekha’ claiming continuous user since 1992.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">In view of these facts, the learned Single Judge granted an interim injunction preventing the respondents, their servants, agents, distributors, stockists or any other person acting on their behalf from manufacturing, marketing, distributing or selling insecticides, pesticides as well as insect repellent under the name LAXMAN REKHA as well as packing design having similar colour scheme, get-up, background and colour combination as that of the appellants’ copyright.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The respondents filed an appeal which has been disposed of by the impugned judgment. The Division Bench in spite of noting the factors which have been set out by the learned Single Judge, has vacated the injunction merely on the ground that there was delay and laches in filing the suit. It has held that such delay and laches disentitled grant of injunction. The respondents were merely directed to file regular accounts of their sales in court.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The law on the subject is well settled. In cases of infringement either of trade mark or of copyright, normally an injunction must follow. Mere delay in bringing action is not sufficient to defeat grant of injunction in such cases. The grant of injunction also becomes necessary if it prima facie appears that the adoption of the mark was itself dishonest.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">In this case it is an admitted position that the respondents used to work with the appellants. The advertisements which had been issued by the appellants in the year 1991 show that at least from that year they were using the mark LAXMAN REKHA on their products. Not only that but the appellants have had a copyright in the marks KRAZY LINES and LAXMAN REKHA with effect from 19-11-1991. The copyright had been renewed on 23-4-1999. A glance at the cartons used by both the parties shows that in 1992 when the respondent first started he used the mark LAXMAN REKHA on cartons containing colours red, white and blue. No explanation could be given as to why that carton had to be changed to look almost identical to that of the appellant at a subsequent stage. This prima facie indicates the dishonest intention to pass off his goods as those of the appellants.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">In our view on the facts extracted by the learned Single Judge, this was a fit case where an interim injunction should have been granted and should have been continued. In our view the Division Bench was entirely wrong in vacating that injunction merely on the ground of delay and laches. Under the circumstances, the impugned order is set aside and that of the trial court is restored. It is clarified that all observations made by the High Court and by this Court are prima facie and shall not be taken into consideration at the time of the trial of the suit.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The appeal stands disposed of accordingly. No order as to the costs.</span></div></h4><div><br></div>', '49c291dcf71def08e871f0045c20d0c5.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-11', 1, '', '', '2021-01-12 02:29:57', '2021-01-13 00:20:36'),
(327, 'heSiPbXgmHPsKiicUssPhFqfO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mandatory Injunction. Party seeking relief must establish much more than mere prima facie case. Supreme Court.', '<h4><b>Tek Singh v. Shashi Verma, (2019) 16 SCC 678</b><br><br></h4><h4><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>FULL JUDGMENT:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">ROHINTON FALI NARIMAN, J.— Leave granted. Respondent 1 filed a civil suit dated 5-3-2013 before the Civil Judge, Senior Division, Solan under Section 6 of the Specific Relief Act in which the following reliefs were claimed:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“(a) Declaring that the effect the plaintiff was running business in Shop No. 3 in the name and style M/s Om Garments owned by proforma Defendant 2 in Anand Complex, the Mall Solan w.e.f. 28-1-2013 on the basis of partnership deed of the said date with proforma Defendant 2 and the plaintiff has been wrongly dispossessed by Defendant 1 from Shop No. 3 in the intervening night of 3-3-2013 and 4-3-2013 illegally, wrongfully, without the consent of the plaintiff or proforma Defendant 2.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(b) Decree for permanent prohibitory injunction restraining Defendant 1 from causing any interference on any portion of the suit premises/Shop No. 3 mentioned above.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">A written statement was filed by the appellant herein denying the averments made in the suit and stating that he has been in possession since 2004 as a tenant of the landlady, who is Respondent 2 before us. The landlady also filed a written statement dated 5-7-2013 in which she stated that apart from the partnership entered into with Respondent 1, the petitioner was her tenant w.e.f. 2004.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">An Order 39 Rule 1 application was filed which was dismissed by the learned Single Judge on 21-4-2015 saying that the relief asked for could not be granted at this stage as it would amount to decreeing the suit itself. An appeal filed before the Additional District Judge met with the same fate. By the judgment dated 19-12-2016, the appellate court held:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“However, when it is an admitted case of Defendant 2, admittedly landlady of the suit shop, that she has rented the suit shop to Defendant 1-respondent and has set up counter-defence that in fact Defendant 1 has sublet the suit shop to the plaintiff which is not at all the case of the plaintiff, prima facie it is clear on record that the suit shop was rented by Defendant 2 to respondent-Defendant 1 and Defendant 1 has been running the suit shop since 17-9-2004 when both the defendants have also reduced rent agreement into writing, copy of which is also available in the case file. As per the rent agreement, the tenancy had commenced w.e.f. 1-9-2004. Nothing has come on record, if Defendant 1-respondent had ever vacated-surrendered the possession of the shop in favour of landlady nor is it the case of Defendant 2 that she ever sought eviction of Defendant 1 from the suit shop. It appears from the copy of partnership deed having been relied upon by the applicant that both the applicant and Defendant 2 had connived with each other in order to oust Respondent 1 who is tenant over the suit shop and filed the suit as well as application for temporary and mandatory injunction in the court. Moreover, when the applicant herself has come with the plea that she is out of possession of the suit shop and she has prayed that possession in her favour be restored qua the suit shop by way of temporary injunction and at the same time the applicant has failed to prove on record that she has prima facie case of balance of convenience lies in her favour or that she is going to suffer irreparable loss as discussed above, hence, by allowing of the application as prayed by the applicant would amount to decree of the suit in favour of the applicant without giving the parties to prove their respective claims by leading evidence. Even when it has come on record that Respondent 1 is in actual possession of the suit property which was rented out to him by Defendant 2 landlady in the year 2004 and nothing has come on record that Defendant 1 had ever been evicted from the suit shop in accordance with law or he ever surrendered the possession of the suit property in favour of Defendant 2, it is clear on record that Respondent 1 has prima facie case and balance of convenience also lies in her favour.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">By the impugned judgment dated 10-4-20181, a learned Single Judge of the High Court of Himachal Pradesh set aside the concurrent findings of fact and allowed a revision petition. This was done without dealing with any of the aspects set out by the first appellate court. From what one is able to gather, given the language used in the judgment, it appears that the learned Judge was swayed by the fact that a police complaint had been filed on 3-2-2013 in which dispossession was acquiesced in.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">We are constrained to observe that every legal canon has been thrown to the winds by the impugned judgment1. First and foremost, the 1999 Amendment to CPC added a proviso to Section 115, which reads as follows:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“115. Revision.—(1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears—</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(a) to have exercised a jurisdiction not vested in it by law, or</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(b) to have failed to exercise a jurisdiction so vested, or</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">* *</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(3) A revision shall not operate as a stay of suit or other proceeding before the court except where such suit or other proceeding is stayed by the High Court.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">A reading of this proviso will show that, after 1999, revision petitions filed under Section 115 CPC are not maintainable against interlocutory orders.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Even otherwise, it is well settled that the revisional jurisdiction under Section 115 CPC is to be exercised to correct jurisdictional errors only. This is well settled. In DLF Housing &amp; Construction Co. (P) Ltd. v. Sarup Singh2 this Court held: (SCC pp. 811-12, para 5)</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“5. The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words “illegally” and “with material irregularity” as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal.” (SCR at p. 373)</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The learned counsel appearing for the respondents argued before us and attempted to support the judgment. He cited the judgment of Dorab Cawasji Warden v. Coomi Sorab Warden3. Para 16 of this judgment is set out hereinbelow: (SCC pp. 126-27)</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated, these guidelines are—</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(3) The balance of convenience is in favour of the one seeking such relief.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">This judgment also makes it clear that when a mandatory injunction is granted at the interim stage, much more than a mere prima facie case has to be made out. None of the aforesaid statutory provisions or judgments have either been adverted to or heeded by the impugned judgment1.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">We, therefore, set aside the impugned judgment1 and restore the judgment of the courts below.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Since the suit filed is a Section 6 suit which is a summary proceeding in itself, the trial court should endeavour to dispose of the suit itself within a period of six months from today.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The appeal is allowed in the aforesaid terms.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">———</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">† Arising out of SLP (C) No. 10850 of 2018, Arising from the Judgment and Order in Sashi Verma v. Tek Singh, 2018 SCC OnLine HP 2151 (Himachal Pradesh, Shimla Bench, CMPMO No. 154 of 2017, dt. 10-4-2018)</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">1 Sashi Verma v. Tek Singh, 2018 SCC OnLine HP 2151</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">2 DLF Housing &amp; Construction Co. (P) Ltd. v. Sarup Singh, (1969) 3 SCC 807 : (1970) 2 SCR 368</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">3 Dorab Cawasji Warden v. Coomi Sorab Warden, (1990) 2 SCC 117</span></div></h4><h4 style=\"text-align: justify;\">Photo courtesy. LiveLaw.</h4>', '2754ced6ed45d97721d3365bdb4f7005.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-11', 1, '', '', '2021-01-12 02:33:09', '2021-01-13 00:18:40');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(328, 'gcqwuoJjCjXGRM1jBcZeiox8V', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mega E-Lok Adalat conducted by the Karnataka State Legal Services Authority and High Court Legal Services Committee disposes 263215 cases in a single day with settlement amount of more than Rs. 702 Crores.', '<h4><span style=\"font-size: 1.3125rem;\">In perhaps one of the biggest Lok Adalats, the E Lok Adalat held by the Karnataka State Legal Services Authority on 19 December 2020 disposed 16325 pre-litigation and 2,46,890 pending cases. The total settlement amount in pre-litigation cases is Rs. 56,25,04,956/- and in pending cases Rs. 645,91,19,971/- totaling Rs.702,16,24,927/-.</span><br></h4><h4><br></h4><h4>It is to be noted that 958 benches were constituted with zero expenditure incurred. Details of the event are given below.</h4><p><br></p><p><img src=\"data:image/png;base64, ', '1f156ea2b1e58d2ae6c04ddc13939588.png', 'ee7f061a5eb7b7f5777a238f0a108b5d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-11', 1, '', '', '2021-01-13 01:28:44', '2021-01-13 01:28:44');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(329, '4txe6g1VYEXB0IfWWHcJpOdHQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'The difficulties of a litigant in India begin when he has obtained Decree. Karnataka High Court quotes Privy Council while affirming restoration of property to Decree Holder. Castigates the Judgment Debtor for trying to frustrate the decree.', '<h4><span style=\"font-size: 0.875rem;\"><b>A. Ananda vs A Krishna Reddy and others. Writ Petition 13456/2020 decided on 7 January 2021.</b></span><br><br>Judgment Link: <br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357576/1/WP13456-20-07-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357576/1/WP13456-20-07-01-2021.pdf</a><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357576/1/WP13456-20-07-01-2021.pdf\" target=\"_blank\"></a><br><br></h4><h4><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant paragraphs:&nbsp;</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">4-F. The unconscionable stand of the JDrs needs to&nbsp; be mentioned here; when there was no dispute as to the identity of the property either in the suit or in the RFA, the JDrs by their wily tactics are trying to generate one in the execution proceedings; in fact, their application filed under Order XLI Rule 27 seeking leave to produce additional documents in the RFA has been rejected by the Division Bench disbelieving&nbsp; the&nbsp; unregistered&nbsp; Settlement&nbsp; Deed dated 10.09.1968; the DB did not believe the version of the JDrs that they were in the possession of the suit property and not the DHr; strangely and unconscionably&nbsp; the&nbsp; JDrs are unjustibiably re-agitating the same issue before the Executing Court and before this Court&nbsp; as&nbsp; well;&nbsp; this&nbsp; virtually amounts to&nbsp; abuse of process of the court; this&nbsp; is&nbsp; yet another ground for the writ court to deny relief to the petitioner.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">4-H Further added to the above, Sec.6 of the 1963 Act employs the expression ‘recover possession’; the so called possession of the JDrs cannot be termed to be possession in law which is a sine qua non for invoking this provision because: (i) Possession consists of two ingredients which Salmond on jurisprudence (7th ed.) page 297-308&nbsp; mentions&nbsp; viz.,&nbsp; &nbsp;(i)&nbsp; corpus&nbsp; &nbsp;possessionis and (ii) animus possidendi; the former, he says, comprises of both the power to use the thing possessed and the existence of grounds for the expectation that the possessor’s use will not be interfered with by others; the later consists of an intent&nbsp; &nbsp;to&nbsp; &nbsp;appropriate&nbsp; &nbsp;to&nbsp; &nbsp;oneself&nbsp; &nbsp;the&nbsp; &nbsp;exclusive use of the thing possessed; learned author P.J.Fitzgerald who edited ‘Salmond&nbsp; on Jurisprudence’&nbsp; (12th&nbsp; edition)&nbsp; at&nbsp; &nbsp;page&nbsp; &nbsp;272&nbsp; adds: “(i) The distinction between animus and corpus was made in Roman law: Dig.41.2.3.1., and has been accepted by such&nbsp; jurists&nbsp; as&nbsp; Savigny,&nbsp; Thering, Pollock, Salmond and Holmes”. Apex Court too&nbsp; in&nbsp; the case of Poonaram Vs.&nbsp; Motiram&nbsp; AIR&nbsp; 2019 SC 813 at paragraph&nbsp; 9&nbsp; has&nbsp; considered&nbsp; and approved this view; (ii) The great Lexicographer Mr.Ramnath Iyer in his magnum opus ‘The Law Lexicon’&nbsp; 3rd&nbsp; Edn.-&nbsp; 2012 writes: “Possession&nbsp; and&nbsp; &nbsp;occupation:&nbsp; &nbsp;Bare occupation and possession are two different things. The concept&nbsp; of possession,&nbsp; at&nbsp; any&nbsp; rate as it is understood in legal terminology, is a complex one which need not include actual occupation. It comprises rather the right to possess, and the right and ability to exclude others from possession and control coupled&nbsp; with a mental element namely, the&nbsp; animus possidendi, that is to say, knowledge of these rights and the desire and intention of exercising them if need be. The&nbsp; adverse&nbsp; possession&nbsp; of which the law speaks does not&nbsp; necessarily&nbsp; denote actual physical ouster from occupation but an ouster from all those rights which constitute possession in law. It is true that physical occupation is ordinarily the best&nbsp; and&nbsp; the most conclusive proof of possession in this sense but the two are not the&nbsp; same.&nbsp; It&nbsp; is&nbsp; also true that there must always be physical ouster from these rights but that does not necessarily import physical ouster from occupation especially when this is of just a small room or two in a house and when this occupation is shared with others”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">4-I Lastly, the JDrs resistance&nbsp; to the&nbsp; execution&nbsp; of&nbsp; the decree, that is structured on&nbsp; the&nbsp; provisions&nbsp; of&nbsp; Sec.6&nbsp; of&nbsp; the 1963 Act, cannot be agreed to; a Division Bench of the Bombay High Court in AMIRUDDIN vs. MOHAMED JAMAL, ILR 15 BOM 685 decided way back in the&nbsp; year 1891, has held that Sec.9 of the old Act which was in pari material with Sec.6 of the new Act is not invocable&nbsp; by&nbsp; a person who has no juridical possession; the same view&nbsp; is&nbsp; taken by several other High Courts in the country viz., NEYVELI LIGNITE CORPORATION vs. K.S.NARAYANA IYER, AIR 1965 MADRAS 122; EMPEROR vs. BANDHU SINGH, AIR 1928 PATNA 124, NRITTO LALL MITTER vs. RAJENDRO NARAIN DEB, (1895) ILR 22 CALCUTTA 562 SOBHA vs. RAM PHAL, AIR 1957 ALLAHABAD 394; if the petitioner arguably has put up the structure in the suit property, it is only by high handedness and in gross disobedience of the injunctive decree granted by the&nbsp; trial&nbsp; Court and affirmed by the Division Bench of this Court; his usurpation of the suit&nbsp; property&nbsp; therefore&nbsp; cannot&nbsp; be&nbsp; termed&nbsp; as juridical possession; such a stand apart from being an after- thought is an affront to the judicial&nbsp; process,&nbsp; to say&nbsp; the least; such unscrupulous&nbsp; litigants&nbsp; who&nbsp; spoil&nbsp; the&nbsp; stream of justice do not deserve a discretionary remedy at the hands of the writ court,&nbsp; exercising&nbsp; a&nbsp; limited&nbsp; jurisdiction constitutionally vested in it.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">In the above circumstances, this writ petition being thoroughly devoid of merits is liable to be rejected and accordingly it is, costs having been made easy.</span></div></h4><h4><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4><div></div>', '70f8fbc7492edf5fda601bc535644286.jpg', '5abfde1ebe4c70a8ccd1ed121ab2787d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-12', 1, '', '', '2021-01-13 01:34:07', '2021-01-20 22:55:32'),
(330, 'xiuhtc7FHFYmVDdSX4cKHSePt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Consumer Protection Act. One sided agreement by developer constitutes unfair trade practice. The Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer‘s Agreement. Supreme Court.', '<h4><span style=\"font-size: 0.875rem;\"><b>Ireo Grace Realtech Pvt Ltd vs Abhishek Khanna &amp; others. Civil Appeal 5785 of 2019 decided on 11 January 2021.</b></span><br><br><b>Judgment Link: </b><br><a href=\"https://main.sci.gov.in/supremecourt/2019/23235/23235_2019_38_1501_25365_Judgement_11-Jan-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/23235/23235_2019_38_1501_25365_Judgement_11-Jan-2021.pdf</a><br><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Held:&nbsp;</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">19.2 The aforesaid clauses reflect the wholly one-sided terms of the Apartment Buyer‘s Agreement, which are entirely loaded in favour of the Developer, and against the allottee at every step. The terms of the Apartment Buyer‘s Agreement are oppressive and</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">wholly one-sided, and would constitute an unfair trade practice under the Consumer Protection Act, 1986.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">19.7 We are of the view that the incorporation of such one-sided and unreasonable clauses in the Apartment Buyer‘s Agreement constitutes an unfair trade practice under Section 2(1)(r) of the Consumer Protection Act. Even under the 1986 Act, the powers of the consumer fora were in no manner constrained to declare a contractual term as unfair or one-sided as an incident of the power to discontinue unfair or restrictive trade practices. An ?unfair contract? has been defined under the 2019 Act, and powers have been conferred on the State Consumer Fora and the National Commission to declare contractual terms which are unfair, as null and void. This is a statutory recognition of a power which was implicit under the 1986 Act. In view of the above, we hold that the Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer‘s Agreement.</span></div></h4><h4><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4><p><br></p>', '0da7b05a4574aed597fc6e13daa29df0.png', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-12', 1, '', '', '2021-01-13 01:39:14', '2021-01-20 22:53:48'),
(331, '45E3COrvZbOXyG390dSZIbqtn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Whether non payment of stamp duty on the commercial contract would invalidate the arbitration agreement Matter referred to larger bench. Supreme Court.', '<h4></h4><h4><span style=\"font-size: 0.875rem;\"><b>M/s. N.N. Global Mercantile Pvt Ltd. vs M/s. Indo Unique Flame Ltd. &amp; Others. Civil Appeal 3802 – 3803 / 2020 decided on 11 January 2021. Justice Dr Dhananjaya Y Chandrachud, Justice Indu Malhotra and Justice Indira Banerjee</b></span></h4><h4><b><br>Judgment Link:</b> <br><a href=\"https://main.sci.gov.in/supremecourt/2020/23926/23926_2020_38_1502_25365_Judgement_11-Jan-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/23926/23926_2020_38_1502_25365_Judgement_11-Jan-2021.pdf<br></a><br><b>Relevant Paragraphs:</b><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">12. We are of the considered view that the finding in SMS Tea Estates and Garware that the non-payment of stamp duty on the commercial contract would invalidate even the arbitration agreement, and render it non-existent in law, and un-enforceable, is not the correct position in law. In view of the finding in paragraph 92 of the judgment in Vidya Drolia by a co-ordinate bench, which has affirmed the judgment in Garware, the aforesaid issue is required to be authoritatively settled by a Constitution bench of this Court.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">We consider it appropriate to refer the following issue, to be</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">authoritatively settled by a Constitution bench of five judges of this Court : “ Whether the statutory bar contained in Section 35 of the Indian Stamp Act, 1899 applicable to instruments chargeable to Stamp Duty under Section 3 read with the Schedule to the Act, would also render the arbitration agreement contained in such an instrument, which is not chargeable to payment of stamp duty, as being non-existent, unenforceable, or invalid, pending payment of stamp duty on the substantive contract / instrument ? ”</span></div></h4><h4><b style=\"font-size: 1.3125rem;\">Compiled by S. Basavaraj, Advocate, Daksha Legal.</b><br></h4>', '0b4499948f47be1489ed5bacfab89cb0.jpg', 'cfe425131f8df5a7c68b5a7bccff0fcf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-12', 1, '', '', '2021-01-13 01:42:19', '2021-01-20 22:52:23'),
(332, 'gBcTPLbJ0QS8y2yaxIrPBct5b', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act 1996. The civil aspect of fraud as defined by Section 17 of the Indian Contract Act can be adjudicated by an arbitral tribunal. Supreme Court.', '<h4><b>M/s. N.N. Global Mercantile Pvt Ltd vs M/s. Indo Unique Flame Lted &amp; others. Civil Appeal 3802 – 3803 /2020. Decided on 11 January 2021.</b><br><br><b>Judgment Link: </b><br><a href=\"https://main.sci.gov.in/supremecourt/2020/23926/23926_2020_38_1502_25365_Judgement_11-Jan-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/23926/23926_2020_38_1502_25365_Judgement_11-Jan-2021.pdf</a><br><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">8 Whether the fraudulent invocation of the Bank Guarantee is arbitrable?</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">8.11 Traditionally, disputes relating to rights in rem are required to be</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">adjudicated by courts and / or statutory tribunals. A right in rem is a right exercisable against the world at large. Actions in rem refer to actions which create a legal status such as citizenship, divorce, testamentary and probate issues, etc. A lis in rem is not arbitrable by a private tribunal constituted by the consent of parties. Actions in personam determine the rights and interests of parties to the subject matter of the dispute, which are arbitrable.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The broad categories of disputes which are considered to be non arbitrable are penal offences which are visited with criminal sanction; offences pertaining to bribery / corruption; matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody and guardianship matters, which pertain to the status of a person; testamentary matters which pertain to disputes relating to the validity of a Will, grant of probate, letters of administration, succession, which pertain to the status of a person, and are adjudicated by civil courts. Certain categories of disputes such as consumer disputes; insolvency and bankruptcy proceedings; oppression and mismanagement, or winding up of a company; disputes relating to trusts, trustees and beneficiaries of a trust are governed by special enactments.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">This Court in Booz Allen &amp; Hamilton Inc. v. SBI Home Finance Ltd.43 has recognized some examples of disputes which are not arbitrable, and held that :“36. The well recognized examples of non-arbitrable disputes are :</span></div></h4><h4><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(i)disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding up matters; (v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">8.12 The civil aspect of fraud is considered to be arbitrable in contemporary arbitration jurisprudence, with the only exception being where the allegation is that the arbitration agreement itself is vitiated by fraud or fraudulent inducement, or the fraud goes to the validity of the underlying contract, and impeaches the arbitration clause itself. Another category of cases is where the substantive contract is “expressly declared to be void” under Section 1044 of the Indian Contract Act, 1872 where the agreement is entered into by a minor (without following the procedure prescribed under the Guardian and Wards Act, 1890) or a lunatic, which would be with a party incompetent to enter into a contract.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">In the case of voidable agreements, such disputes would be arbitrable, since the issue whether the consent was procured by coercion, fraud, or misrepresentation requires to be adjudicated upon by leading cogent evidence, which can very well be decided through arbitration. Until it so proved and upheld as per Sections 2(i) and (j) of the Indian Contract Act, 1872 such an agreement would remain enforceable, and is not void.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">8.16 The ground on which fraud was held to be non arbitrable earlier was that it would entail voluminous and extensive evidence, and would be too complicated to be decided in arbitration. In contemporary arbitration practice, arbitral tribunals are required to traverse through volumes of material in various kinds of disputes such as oil, natural gas, construction industry, etc.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The ground that allegations of fraud are not arbitrable is a wholly archaic view, which has become obsolete, and deserves to be discarded. However, the criminal aspect of fraud, forgery, or fabrication, which would be visited with penal consequences and criminal sanctions can be adjudicated only by a court of law, since it may result in a conviction, which is in the realm of public law.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">8.17 In the present case, the allegations of fraud with respect to the invocation of the Bank Guarantee are arbitrable, since it arises out of disputes between parties inter se, and is not in the realm of public law.</span></div></h4><h4><br></h4><h4><b>Compiled by S. Basavaraj, Advocate, Daksha Legal</b></h4>', '01918aabbf44b0939bfa9d617a450f37.png', 'd64f37bb381d7d0b15c8e2d9c51a7c6b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-12', 1, '', '', '2021-01-13 01:45:54', '2021-01-20 22:50:20'),
(333, '7kPs9ww9jmK4V9jyn3nvQh8Pb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act 1996. Limitation of six years to institute suit for recovery of dues under the Karnataka Municipal Corporations Act. Suit includes arbitration proceedings. Karnataka High Court.', '<h4><span style=\"font-size: 0.875rem;\"><b>M/s. Serve and Volley Outdoor Advertising Pvt Ltd. vs Bruhat Bengaluru Mahanagara Palike and another. Miscellaneous First Appeal 4502/2020 (AA) decided on 8 January 2021.</b></span><br><br><b>Judgment Link: </b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357722/1/MFA4502-20-08-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357722/1/MFA4502-20-08-01-2021.pdf</a><br><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Relevant Paragraphs:&nbsp;</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">15….Hence, the question in the instant case is, whether Section 474 of the KMC Act, which is a special law prescribes a different period of limitation than as prescribed under the schedule to the Limitation Act, in terms of Section 3 of the Limitation Act?</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Karnataka Municipal Corporations. Act. 474. Limitation for recovery of dues. – No distraint shall be made, no suit shall be instituted and no prosecution shall be commenced in respect of any sum due to the corporation under this Act after the expiration of a period of six years from&nbsp; the date on which distraint might first have been made, a suit might first have been instituted or prosecution might first have been commenced, as the case may be, in respect of such sum.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Thus, the limitation period for filing a suit to recover dues to the corporation (BBMP) is six years from when a suit might first have been instituted. The expression used in Section 474 of KMC Act is “suit”. Learned senior counsel for the appellant submitted that the said Section would not apply to an arbitration proceeding. However, we do not think, the said submission is right inasmuch as the Hon’ble Supreme Court in the case of Geo Miller &amp; Co. Pvt. Ltd. (supra) has referred to Panchu Gopal Bose vs. Board of Trustees for Port of Calcutta [(1993) 4 SCC 338] (Panchu Gopal Bose) and extracted paragraph No.11 in the latter case as under: “11. Therefore, the period of limitation for the commencement of arbitration runs from the date on which, had there been no arbitration clause, the cause of action would have accrued. Just as in the case of civil actions the claim is not&nbsp; to be brought after the expiration of a specified number of years from the date on which the cause of action accrued, so in the case of arbitrations, the claim is not to be put forward after the expiration of the specified number of years from the date when the claim accrued.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">On a reading of the same, it is clear that the period of limitation, whether for a suit or an arbitration is the same under Section 474 of the KMC Act even though the word “arbitration” is not found in the said provision. The reason being, the judgment in Panchu Gopal Bose clearly states that the period of limitation for the commencement of arbitration runs from the date on which, had there been no arbitration clause, the cause of action would have accrued. Therefore, the period of limitation as prescribed for a suit in Section 474 of the KMC Act, i.e., to commence a civil action, would also be the same for commencement of an arbitration. Hence, the expression “suit” in Section 474 of the KMC Act would take within its scope and ambit the expression “arbitration” also. This is because arbitration is an alternative dispute resolution mechanism to a suit. In the circumstances, the period of limitation for making claims by respondent No.1/BBMP by way of a suit or arbitration is six years from the date when the cause of action arose.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Case laws in N.Balakrishnan v. M. Krishnamurthy, [(1998) 7 SCC 123], State of Orissa vs. Mamata Mohanti, [(2011) 3 SCC 436], Hukumdev Narain Yadav vs. Lalit Narian Mishra, [(1974) 2 SCC 133], Consolidated Engineering Enterprises vs. Prl. Secretary, Irrigation Department, [(2008) 7 SCC 169], State of Goa vs. Western Builders [(2006) 6 SCC 239]</span></div></h4><h4><b style=\"font-size: 1.3125rem;\">Compiled by S. Basavaraj, Advocate, Daksha Legal.</b><br></h4>', '4ced7e27167a1f1633723cc9992d5b08.png', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-12', 1, '', '', '2021-01-13 01:49:59', '2021-01-20 22:49:09'),
(335, 'MpgVIi5oBaiprLIsTcKruGh0x', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka SC ST PTCL Act. Conversion and sale of granted land by original grantee after prohibition period. Conversion amounts to deemed permission. Sale is valid. Karnataka High Court.', '<h4><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kumar and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 21977 of 2013 and connected matters decided on 21 December 2020.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.<o:p></o:p></b></span></p></h4><h4><b><br></b><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>17 &amp; 18. Immediately, after the condition of the non-alienation was over, the original grantee applies for conversion of the land from agricultural to non- agricultural purposes in the year 1994. The competent authority granted conversion of the land by his order dated 27.05.1994, thus, from 27.05.1994, character of the land being agriculture was changed to being non-agriculture and this act of getting the land converted is by the original grantee himself. The original grantee then sold the land to respondent No.10 – T. Suresh Gowda on 07.04.2004 to respondent No.10.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>24. Judgment in THE TIBETIAN CHILDREN’S VILLAGE Vs. DEPUTY COMMISSIONER AND OTHERS in W.P.No.15802/2007 dated 07.04.2019 referred to as follows:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>“3. Since the competent authorities under the Act have taken a divergent view of the matter, this Court will have to take note of both the orders and arrive at a conclusion as to the consideration as made therein. Insofar as the fact that the property in question was granted through Darkhast order dated 17.02.1978 is the undisputed position. The Saguvali Chit was issued on 31.05.1978 with a condition that the property shall not be alienated for a period of 15 years. The grantee himself after the non-alienation period of 15 years had filed an application seeking conversion of the land for residential purpose and the same was approved by the order dated 27.05.1994. It is subsequent thereto the sale has been made in favour of the vendor of the petitioner on 04.06.1994 and the petitioner has thereafter purchased on 25.06.1994. In the present circumstance what is necessary to be noticed is that the grant as made initially was for the agricultural purpose and at the point when the violation of the provisions of the Act would be alleged, the power provided under the Act is also to set aside such transaction, forfeit the land and restore it to the grantee. The object being that the purpose of the grant should be achieved inasmuch as the persons belonging to the lower strata of society who are granted such land to carry out the avocation, the protection should also be available so that the transactions which are made contrary to the provisions of the Act is to be set aside so that the purpose of the grant would be achieved in such manner.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>4. If that aspect of the matter is kept in view and the instant facts are perused, the grantee himself had given up the use of land for agricultural purpose and had applied for grant of conversion of the land after the embargo on alienation for 15 years had lapsed. In the process of granting the conversion order, the competent authorities were required to take note of these aspects of the matter and in that light when the conversion of the land is granted, the permission of alienating the property is deemed to have been granted. In such circumstances, whereupon the converted land is alienated violation of the provision of the Act would not arise. Therefore the consideration as made by the Assistant Commissioner in the present facts and circumstance relating to the conversion order being granted on 27.05.1994 and the sale having taken place subsequent thereto on 04.06.1994 would indicate that the sale was after such period and the violation as contemplated under the Act had not occurred.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>5. If the consideration as made by the Assistant Commissioner is kept in view and the reason assigned by the Deputy Commissioner is taken into consideration, the reason would not justify the action inasmuch as the land had been converted. Even though as observed by the Deputy Commissioner the provision contained in Sections 4 and 5 of the Act do not refer to these aspects of the matter, as already noticed the conversion was made after the embargo on alienation had ceased and thereafter the property had been sold and as such the fact situation is not the normal circumstance.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>25. This order of the Co-ordinate Bench is approved by the Division Bench. Therefore, in the light of the finding of this Court that once the land was converted by an act of the original grantee himself, it was not open to the Deputy Commissioner to resume the land in favour of the original grantee.</b></span></div></h4>', '96da769ef026c2b9bee85057c71bab17.jpeg', '013b06ae475a895179f97b42808b6fb4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-16', 1, '', '', '2021-01-14 01:24:03', '2023-01-16 12:16:22'),
(336, 'Gy0mvvBVNMRoPtGQwsQ67sqxM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Supreme Court orders opening of Anganwadi Centers outside the containment zones in order to provide nutritional support to pregnant women lactating mothers adolescent girls and children.', '<h4></h4><h4></h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt\"><span style=\"font-size:12.0pt;font-family:\" verdana\",\"sans-serif\";=\"\" mso-ansi-language:en-gb;mso-fareast-language:en-gb\"=\"\"><b>Dipika Jagatram Sahani vs.\r\nUnion of India and Others&nbsp;<br></b></span><span style=\"font-size:12.0pt;font-family:\" verdana\",\"sans-serif\";=\"\" mso-ansi-language:en-gb;mso-fareast-language:en-gb\"=\"\"><b>Writ Petition (Civil) 1039\r\nof 2020 decided on 13/01/2021</b><br></span><span style=\"font-size:12.0pt;font-family:\" verdana\",\"sans-serif\";=\"\" mso-ansi-language:en-gb;mso-fareast-language:en-gb\"=\"\"><br><b>Judgment Link:</b><a href=\"https://main.sci.gov.in/supremecourt/2020/18627/18627_2020_37_1501_25393_Judgement_13-Jan-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/18627/18627_2020_37_1501_25393_Judgement_13-Jan-2021.pdf</a><br></span><span style=\"font-size:12.0pt;font-family:\" verdana\",\"sans-serif\";=\"\" mso-ansi-language:en-gb;mso-fareast-language:en-gb\"=\"\">\r\n</span></h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt\"><span style=\"font-size:12.0pt;font-family:\" verdana\",\"sans-serif\";=\"\" mso-ansi-language:en-gb;mso-fareast-language:en-gb\"=\"\"></span></h4><h4 style=\"margin-bottom: 0.0001pt;\"><span verdana\",\"sans-serif\";=\"\" mso-ansi-language:en-gb;mso-fareast-language:en-gb\"=\"\" style=\"font-size: 12pt;\"><br><div style=\"text-align: justify;\"><b style=\"font-size: 12pt;\">Relevant paragraphs:&nbsp;</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 12pt;\">1. This writ petition has been filed as a Public Interest Litigation under Article 32 of the Constitution of India questioning the closure of the Anganwadi Centres across the country. The petitioner states that through Anganwadi Centres supplementary nutrition to pregnant women, lactating mothers, adolescent girls and children upto the age of 6 years were being provided which fulfilled the State objective of holistic development of children under 6 years and to provide food and nutrition to the beneficiaries. In the writ petition the petitioner impleaded the Union of India, all States and Union Territories and has prayed reliefs.</span></div></span><span verdana\",\"sans-serif\";=\"\" mso-ansi-language:en-gb;mso-fareast-language:en-gb\"=\"\" style=\"\"><div style=\"text-align: justify;\"><span style=\"font-size: 16px;\"><br></span></div><span style=\"font-size: 12pt;\"><div style=\"text-align: justify;\"><span style=\"font-size: 12pt;\">4. The Act, 2013 by Section 4 creates a statutory right of every pregnant woman and lactating mother free meals during pregnancy and six months after the child birth. Section 5 provides for nutritional support to children, in the case of children in the age group of six months to six years, age appropriate meal, free of charge, through the local Anganwadi so as to meet the nutritional standards. Similarly, Section 6 provides for and management of child malnutrition.</span></div></span></span></h4><div style=\"text-align: justify;\"><span verdana\",\"sans-serif\";=\"\" mso-ansi-language:en-gb;mso-fareast-language:en-gb\"=\"\" style=\"font-size: 12pt;\"><br></span></div><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt\"><div style=\"text-align: justify;\"><span style=\"font-size: 12pt;\">7. After spread of pandemic Corona virus(COVID-19), Anganwadi Centres were\r\nclosed throughout the country in March, 2020. The distribution of special\r\nnutrition and other benefits to be provided for beneficiaries being essential\r\nservices were permitted to be conducted by Anganwadi staff by resorting to Take\r\nHome Ration.</span></div><span style=\"\" verdana\",\"sans-serif\";=\"\" mso-ansi-language:en-gb;mso-fareast-language:en-gb\"=\"\"><div style=\"text-align: justify;\"><span style=\"font-size: 16px;\"><br></span></div><span style=\"font-size: 12pt;\"><div style=\"text-align: justify;\"><span style=\"font-size: 12pt;\">&nbsp;17. We have considered submissions of the learned counsel for the parties and\r\nhave perused the records. Children are the next generation and therefore unless\r\nand until the children and the women have the nutritious food, it will affect\r\nthe next generation and ultimately the country as a whole. No one can doubt\r\nthat children are the future of our country and if there is some stinginess in\r\nproviding them with adequate nutrition, the country as a whole is deprived in\r\nfuture of taking the benefit of their potential.</span></div></span></span><span style=\"\" verdana\",\"sans-serif\";=\"\" mso-ansi-language:en-gb;mso-fareast-language:en-gb\"=\"\"><div style=\"text-align: justify;\"><span style=\"font-size: 16px;\"><br></span></div><span style=\"font-size: 12pt;\"><div style=\"text-align: justify;\"><span style=\"font-size: 12pt;\">&nbsp;18. As observed above, it is now statutory obligation of the Centre and the\r\nStates to provide for nutritional support to the pregnant women and lactating\r\nmothers, nutritional support to children and to take steps to identify and\r\nprovide meals for children who suffer from malnutrition. Government has a\r\nconstitutional obligation to preserve human life. Good health of its citizens\r\nis its primary duty. International covenants also aim at highest attainable\r\nstandards of physical and mental health. This is in interest of social justice.\r\nInadequate supply of nutritious food to the citizens, more particularly to the\r\nchildren and the women shall affect their health. Therefore, the same shall be\r\nin violation of their fundamental right to health/right to live with dignity\r\nguaranteed under Article 21 of the Constitution of India.</span></div></span></span><span style=\"font-size:12.0pt;font-family:\" verdana\",\"sans-serif\";=\"\" mso-ansi-language:en-gb;mso-fareast-language:en-gb\"=\"\"><div style=\"text-align: justify;\"><span style=\"font-size: 12pt;\"><br>33. It is the obligation of the State to ensure that pregnant women, lactating\r\nmothers and children in the age of 3 to 6 years and children who suffer from\r\nmalnutrition are provided their dues. The State has to provide an appropriate\r\nmechanism for supervision and check, child development officers and other\r\ndistrict level officers who are entrusted to monitor the functioning of Anganwadi\r\nCentres have to be extra vigilant and take steps so that no beneficiary is\r\ndenied its dues. All States/Union Territories should evolve an appropriate\r\nmechanism for supervision so that dues are received by beneficiaries for whom\r\nschemes are in place. It is for the State to secure health to its citizens as\r\nits primary duty. No doubt, the Government is rendering this obligation through\r\nvarious schemes, such as, opening of Aanganwadis, providing nutritious food\r\nthrough Aanganwadis, Mid-day Meal Scheme, etc., but in order to make it\r\nmeaningful, it has to be within the reach of its people, as far as possible,\r\nand the Government must supply the nutritious food in the real sense bearing in\r\nmind the provisions of National Food Security Act.</span></div></span><span style=\"font-size:12.0pt;font-family:\" verdana\",\"sans-serif\";=\"\" mso-ansi-language:en-gb;mso-fareast-language:en-gb\"=\"\"><div style=\"text-align: justify;\"><span style=\"font-size: 12pt;\"><br>35. In view of the above discussions, we allow this writ petition with\r\nfollowing directions: –</span></div></span><span style=\"font-size:12.0pt;font-family:\" verdana\",\"sans-serif\";=\"\" mso-ansi-language:en-gb;mso-fareast-language:en-gb\"=\"\"><div style=\"text-align: justify;\"><span style=\"font-size: 12pt;\">I) As per guidance note dated 11.11.2020 issued by Government of India,\r\nMinistry of Women and Child Development, all States/Union Territories who have\r\nnot yet opened Anganwadi Centres shall take a decision to open Anganwadi\r\nCentres on or before 31.01.2021 situated outside the containment zone.</span></div></span><span style=\"font-size:12.0pt;font-family:\" verdana\",\"sans-serif\";=\"\" mso-ansi-language:en-gb;mso-fareast-language:en-gb\"=\"\"><div style=\"text-align: justify;\"><span style=\"font-size: 12pt;\">(II) The decision for not opening Anganwadi Centres in any State/Union\r\nTerritories or any part of State/Union Territory shall be taken only after the\r\nState Disaster Management Authority of the State direct for not opening of\r\nAnganwadi Centres in State/particular area of the State situated outside\r\ncontainment zone.</span></div></span><span style=\"font-size:12.0pt;font-family:\" verdana\",\"sans-serif\";=\"\" mso-ansi-language:en-gb;mso-fareast-language:en-gb\"=\"\"><div style=\"text-align: justify;\"><span style=\"font-size: 12pt;\">(III) Anganwadi Centres situated in the containment zone shall not be opened till\r\nthe containment continues.</span></div></span><span style=\"font-size:12.0pt;font-family:\" verdana\",\"sans-serif\";=\"\" mso-ansi-language:en-gb;mso-fareast-language:en-gb\"=\"\"><div style=\"text-align: justify;\"><span style=\"font-size: 12pt;\">(IV) All States/Union Territories shall ensure that nutritional standards as\r\nprovided in Schedule II of National Food Security Act, 2013, reproduced herein\r\nabove in para 13 is fulfilled by providing nutritional support to pregnant\r\nwomen, lactating mothers, nutritional support to children who suffer from\r\nmalnutrition.</span></div></span><span style=\"font-size:12.0pt;font-family:\" verdana\",\"sans-serif\";=\"\" mso-ansi-language:en-gb;mso-fareast-language:en-gb\"=\"\"><div style=\"text-align: justify;\"><span style=\"font-size: 12pt;\">(V) All the States/Union Territories shall issue necessary orders regarding\r\nmonitoring and supervision of Anganwadi Centres to ensure that the benefit\r\nreaches to the beneficiaries and a Complaint Redressal Mechanism be put in\r\nplace in each district.</span></div></span></h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt\"><i style=\"font-size: 12pt;\"><b><br></b></i></h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt\"><i style=\"font-size: 12pt;\"><b>Compiled by Sumana\r\nChamarty, Advocate, Daksha Legal.</b></i><br></h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt\"><span lang=\"EN-US\" style=\"font-size:12.0pt;line-height:115%;font-family:\" verdana\",\"sans-serif\"\"=\"\"><o:p>&nbsp;</o:p></span></h4>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n', '5b5c4007170eee6bd70164fca3c48815.png', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-13', 1, '', '', '2021-01-14 01:26:50', '2021-01-20 22:44:28'),
(337, 'YZeQthlxjR67yFQhFtjjjXUIm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Adverse possession. Person occupying forest land in violation of Karnataka Forest Act 1963 cannot claim adverse possession against the government. Government directed to take possession. Karnataka High Court.', '<h4><span style=\"font-size: 0.875rem;\"><b>Jeanne Pinto vs Deputy Conservator of Forests and another. Regular First Appeal 988/2013 decided on 6 January 2021.</b></span><br><br><b>Judgment Link: </b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358139/1/RFA988-13-06-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358139/1/RFA988-13-06-01-2021.pdf</a><br><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant paragraphs:&nbsp;</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">30. The provisions of Section 33(2)(iii-a) of the Karnataka Forest Act, 1963, prohibits unauthorized occupation of land for any purpose. Admittedly, the present plaintiff who is a trespasser and encroacher, filed suit claiming forest land by way of adverse possession is not maintainable and admittedly, eviction orders already being passed by the concerned forest authorities have reached finality.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">31. It is impossible for the State and its instrumentalities including local authorities to keep everyday vigilance/ watch over vast tracts of open land owned by them or of which they are public trustees. No amount of vigil can stop encroachments and unauthorized occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeed in manipulating the State apparatus for getting their occupation/possession and construction regularized. Where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the Court is duty bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State of immovable property and give an upper hand to encroachers, unauthorised occupants or land grabbers.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">32. The plaintiff is claiming that she is in continuous possession of the lands for more than 100 years. But no documents have been produced to prove her possession and admittedly, the plaintiff is an encroacher of forest lands and already eviction orders have been passed by the authorities under the Karnataka Forest Act, 1963, and the same has reached finality. Therefore, the plaintiff has&nbsp; failed to establish that she acquired title to the suit schedule properties by way of adverse possession.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">33. The dictum of the Hon’ble Supreme Court in the case of T.Anjanappa and others vs. Somalingappa&nbsp; and&nbsp; another reported in (2006)7 SCC 570, wherein, at paragraph-20, it is held as under: “20. It is well recognized proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. The&nbsp; possession must&nbsp; be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">34. Though the plaintiff claimed that she is in continuous possession for 40 years, the fact remains that she is an encroacher of forest land, as admitted by P.W.1 in the cross-examination, as stated supra. A person who is a trespasser cannot claim adverse possession against the government land, that too a reserve forest land, in view of the provisions of Section 2 of the Karnataka Forest (Conservation) Act, 1980, and in view of the dictum of the Hon’ble Supreme Court in the case of T.N.Godavarman, supra.</span></div></h4><h4><span style=\"font-size: 1.3125rem;\"><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></span><br></h4>', '2c2ccb32c1eed0e1794cb765c4bc3a82.png', 'c89a04c50e9522a4f29e4ba7ea1f4d93.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-13', 1, '', '', '2021-01-15 01:04:14', '2021-01-20 22:42:20'),
(338, 'CIurCR0mz9fwk3ZUF4Xk1IKRe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'It is high time for the government to introspect and take stringent measures to protect forest and government lands. Karnataka High Court expresses deep concern over encroachment of forest and government lands.', '<h4><span style=\"font-size: 0.875rem;\"><b>Jeanne Pinto vs Deputy Conservator of Forests and another. Regular First Appeal 988/2013 decided on 6 January 2021.</b></span><br><br><b>Judgment Link: <br></b><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358139/1/RFA988-13-06-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358139/1/RFA988-13-06-01-2021.pdf</a><br><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant paragraphs:&nbsp;</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">35. It is known that the authorities are taking action on small fishes i.e., encroachers of small extent of lands like 1 or 2 acres. They never bother about whales who encroach more than 50 acres of land. Admittedly, in&nbsp; the present case, appellant has encroached 68 acres 33 guntas of government land. It is high time for the authorities working under the Government to introspect themselves about their duty towards general public and the nation, and discharge their duty to protect the government land.&nbsp; Otherwise, holding higher posts in the State becomes meaningless.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">36. It is well settled that every public servant is a trustee of the Society and all in facets of public administration, every public servant has to exhibit honesty, integrity, sincerity and faithfulness in implementation of the political, social, economic and constitutional policies to integrate the nation, to achieve excellence and efficiency in the public administration. A public servant should exhibit transparency in implementation and of accountability for&nbsp; due effectuation of constitutional goals. Though the Hon’ble Apex Court in the case of Godavarman (supra) laid down the guidelines for protecting the forest lands, still the State authorities are silent spectators and allowed land grabbers to encroach government lands especially forest lands. Therefore, it is high time for every successive governments to introspect themselves and take a stringent measures to protect the government lands. Otherwise, one day, the forest lands in the State will vanish and ecological imbalance of the nature will ruin the society.&nbsp; It is duty of the every individual&nbsp; &nbsp;or&nbsp; State&nbsp; to&nbsp; protect&nbsp; and&nbsp; improve&nbsp; the&nbsp; &nbsp;environment, safeguard the forests and wildlife in the country as contemplated under Article 48A of the Constitution of India which provides for protection and improvement of environment and safeguarding of forests and wild life. The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. As per Article 51A(g) of the Constitution of India, it is the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. It is well settled that not only human beings, but also the living creatures have fundamental right to live with dignity within the meaning of Article 21 of the Constitution of India. Their rights to live are also recognized by the Constitution of India.</span></div></h4><h4><b style=\"font-size: 1.3125rem;\">Compiled by S. Basavaraj, Advocate, Daksha Legal.</b><br></h4>', 'faabdf6bcceb5de540b16223ccbc59de.png', '75faf9c5155109447db17e3d31ae7c98.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-13', 1, '', '', '2021-01-15 01:07:23', '2021-01-20 22:40:25');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(339, 'phYBcje3qY7l7TOCOkOY53r4m', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Trial. DNA report cannot be relied on unless the Scientific Officer who has given the report is examined and is subjected to cross-examination. Karnataka High Court.', '<h4><b>Paramesha vs State of Karnataka. Criminal Appeal 1959/2019 decided on 11 December 2020. </b><br><br><b>Judgment Link: </b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357617/1/CRLA1959-19-11-12-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357617/1/CRLA1959-19-11-12-2020.pdf</a><br><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant paragraphs:&nbsp;</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">21. I am conscious of the fact that the DNA test is an impact of the modern scientific and technological revolution. No doubt this new technology can be used as an effective tool in crime detection. To prove the case of the prosecution, the DNA technology as is a latest tool&nbsp; of modern genetic science. Many courts not only in India, but even in United State have relied upon and accepted it as a admissible evidence. However by close reading of the material, the scientific result is going to be taken, the entire process of procuring the DNA evidence is controlled by human agencies i.e., Investigating Officer and the forensic scientist. There is ample chance of manipulation or tampering of such evidence by the Corrupt Officers or Scientist which needless to say highly prejudice the accused persons. Even preservation method adopted are not properly brought on record. Under such circumstances the prosecution has to establish the corroboration of such evidence and its truth. Nagappa V/s State of Karnataka reported&nbsp; in&nbsp; 2020(3) KCCR 1704 relied on.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">22. Taking into consideration the decision quoted supra and on perusal of the evidence of the Investigating Officer it indicates that he has given reasons to PW.8 and PW.8 without following any information, has drawn the blood of the accused and has sent and even what is the method of preservation has also been not been followed as specifically deposed before the Court. even Scientific Officer has also not been examined before the Court. Under such circumstances the mere production of the report as per Ex.P14 will not help to the case of the prosecution to prove its case beyond all reasonable doubt.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Appeal allowed. Conviction set aside</span></div></h4><h4><br></h4><h4><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4>', 'e032407a3bac8e020f05eacc56015814.jpg', '2af4a16484914f0ebe7426a7032bb84f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-14', 1, '', '', '2021-01-15 01:11:33', '2021-01-20 22:39:02'),
(340, 'WcXQuo01BGv85t9aR6QAVPC3s', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Specific Relief Act. Where specific performance of oral agreement is sought for heavy burden lies on the plaintiff to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immovable property. Karnataka High ', '<h4><span style=\"font-size: 0.875rem;\"><b>H.R.Subramanya Shastry and others vs K. Mohan Kumar. Regular First Appeal 666/2013 decided on 6 January 2021.</b></span><br><br><b>Judgment Link:</b> <br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358136/1/RFA666-13-06-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358136/1/RFA666-13-06-01-2021.pdf</a><br><br><b>Relevant paragraphs: </b><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">31. In view of the oral agreement set up by the plaintiff in respect of the immovable property, heavy burden is on him to discharge the same when there was an oral contract that too when the defendants have filed a written statement denying the oral agreement.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">33. The Hon’ble Supreme Court while considering the provisions of Section 54 of the Transfer of Property Act with regard to specific performance of oral agreement of sale sought in the case of Brij&nbsp; Mohan and Others –vs-&nbsp; Sugra Begum&nbsp; and&nbsp; Others reported&nbsp; in (1990) 4 SCC 147 at paragraphs 20 and 22 has held as under: “20. We have given our careful consideration to the arguments advanced by Learned Counsel for the parties and have thoroughly perused the record. We agree with the contention of the Learned counsel for the appellants to the extent that there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad- idem between the parties for a concluded oral agreement for sale of immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties orally and a written agreement if any to be executed subsequently would only be a formal agreement incorporating such terms which had already been settled and concluded in the oral agreement.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">35. When the plaintiff has set up an oral agreement and has not mentioned any terms and conditions in the plaint, it is clear that there was no contract between the parties and the decree for specific performance could not have been granted by the trial Court.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">37. It is well settled that where the plaintiff comes forward to seek a decree for specific performance of contract of sale of immovable&nbsp; property&nbsp; on&nbsp; the&nbsp; basis&nbsp; of&nbsp; an&nbsp; oral&nbsp; agreement&nbsp; alone, “heavy burden lies on the plaintiff” to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immoveable property.&nbsp; &nbsp;Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiff that vital and fundamental terms for sale of immovable property were concluded between the parties and in terms of the provisions of Section 20 of the Specific Relief Act where discretion for grant of specific performance is discretionary, but it has to be exercised in accordance with ‘sound and reasonable judicial principles’. To grant specific performance, however, the Court is not bound to grant such a relief merely because it is lawful to do so. The Court should meticulously consider all facts and circumstances of each case and to see that it is not used as an instrument of oppression to have an unfair advantage not only to the plaintiff but also to the defendant. The relief of specific performance is discretionary but not arbitrary; hence, discretion must be exercised in accordance with sound and reasonably judicial principles. The said principle is not at all considered by the trial Court while passing the impugned judgment and decree which cannot be sustained.</span></div></h4><h4 style=\"text-align: justify;\">Appeal allowed.<br></h4><h4 style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem; text-align: left;\">Compiled by S. Basavaraj, Advocate, Daksha Legal.</b><br></h4>', 'f42484e4023ba28523f8cfc7998f6aa6.png', '54b32bbfdedaa9f337d9a63e02b5e488.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-14', 1, '', '', '2021-01-15 01:14:13', '2021-01-20 22:37:45'),
(2671, '89PPlauy5m8TNYI9HXI0orTIo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A judge is judged everyday by the lawyers, litigants and the public, as the courts are open and the judges speak by giving reasons in writing for their decisions. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Anna Mathews and others Vs Supreme Court of India and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition (Civil) 148 of 2023 decided on 10 February 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Sanjiv Khanna and Justice B.R. Gavai.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The legal issue raised in the aforementioned writ petitions relates to the scope and ambit of judicial review in the matter of appointment of judges to the High Courts under Article 217 of the Constitution of India. </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. In our opinion, this legal issue is settled and is not res integra.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. This Court, in Mahesh Chandra Gupta v. Union of India and Others , has held that appointment of a judge is an executive function of the President of India. Article 217(1) prescribes the constitutional requirement of consultation. Fitness of a person to be appointed as a judge of the High Court is evaluated in the consultation process. Evaluation of the worth and merit of a person is a matter entirely different from eligibility of a candidate for elevation. While Article 217(2) prescribes the threshold limit or the entry point for a person to be qualified to be a judge of a High Court, Article 217(1) prescribes the procedure to be followed, which <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">procedure is designed to test the fitness of a person so to be appointed; her character, her integrity, her competence, her knowledge and the like. Thus, this judgment draws on the basic difference between eligibility and suitability. Eligibility is an objective factor which is determined by applying the parameters or qualifications specified in Article 217(2). Therefore, when eligibility is put in question, the question would fall within the scope of judicial review. However, the question whether a person is fit to be appointed as a judge essentially involves the aspect of suitability and stands excluded from the purview of judicial review.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">8. During the course of hearing before us, it was accepted that a number of persons, who have had political backgrounds, have been elevated as judges of the High Courts and the Supreme Court, and this by itself, though a relevant consideration, has not been an absolute bar to appointment of otherwise a suitable person. Similarly, there have been cases where the persons recommended for elevation have expressed reservations or even criticised policies or actions, but this has not been held to be a ground to treat them <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as unsuitable. It goes without saying that the conduct of the judge and her/his decisions must reflect and show independence, adherence to the democratic and constitutional values. This is necessary as the judiciary holds the centre stage in protecting and strengthening democracy and upholding human rights and Rule of Law.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">10. We are clearly of the opinion that this Court, while exercising power of judicial review cannot issue a writ of certiorari quashing the recommendation, or mandamus calling upon the Collegium of the Supreme Court to reconsider its decision, as this would be contrary to the ratio and dictum of the earlier decisions of this Court referred </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to above, which are binding on us. To do so would violate the law as declared, as it would amount to evaluating and substituting the decision of the Collegium, with individual or personal opinion on the suitability and merits of the person.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">11. The decision of this Court in Shri Kumar Padma Prasad v. Union of India and Others , was a case relating to eligibility of a person, in whose favour the warrant for appointment as a judge of the High Court had been issued, but who was not qualified to be appointed as a judge of the High Court. The ratio of this judgment cannot be extended to apply the power of judicial review to examine the suitability or merit of a candidate.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12. We may also state that the person in question has been elevated as an Additional Judge of the High Court of Judicature at Madras. On taking oath the person pledges to work as a judge to uphold the Constitution and the laws. Article 51A8 of the Constitution casts an obligation on every citizen, and more so on every judge, to promote harmony, spirit of common brotherhood among all transcending religious, linguistic, regional or sectional diversities. Principle of secularism and dignity of every individual – regardless of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">religion, caste or creed, is the foundation of Rule of Law and equal protection of laws. Not only is the conduct and judgments delivered considered at the time of confirmation, a judge is judged everyday by the lawyers, litigants and the public, as the courts are open and the judges speak by giving reasons in writing for their decisions.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">13. For the aforesaid reasons, we do not find any merit in the present writ petitions and, thus, we are not inclined to entertain and issue notice.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">14. The writ petitions are dismissed at the admission stage.</span></span></p>', '6e3435f641ece8e6067e8c73fc1ab5d3.jpeg', '531f0724fdfe3ddedade8c617a311be1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-16', 1, '', '', '2023-02-14 12:52:10', '2023-02-16 06:39:21'),
(342, 'DIzgiirWijCSmPFU2FrM1t2Rv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'High Court of Karnataka restores normal functioning of courts with effect from 18 January 2021 except in seven districts on experimental basis. ', '<p><span style=\"font-size: 0.875rem;\">The Modified Standard Operating Procedure issued on 12 January 2021 for the District Judiciary with effect from 18 January 2021. Normal functioning is restored in all courts except (1) Bengaluru Urban (2) Bengaluru Rural (3) Chikkaballapura, (4) D.K. Mangaluru (5) Mysuru, (6) Shivamogga and (7) Tumakuru</span><br></p><p><br></p><p>PDF copy below</p><p><a href=\"https://dakshalegalhome.files.wordpress.com/2021/01/modified-sop.pdf\" style=\"box-sizing: inherit; background-color: rgb(255, 255, 255); transition: color 0.11s ease-in-out 0s; color: rgb(0, 81, 119); outline: dotted thin; margin-top: 0px; font-family: &quot;Crimson Text&quot;, &quot;Baskerville Old Face&quot;, Garamond, &quot;Times New Roman&quot;, serif; font-size: 22px;\">modified-sop</a><br></p>', '27a56a417607f8bf802ef5ed058c6161.png', 'c7c19321f17d756c37e4672da0114625.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-14', 1, '', '', '2021-01-15 01:20:07', '2021-01-15 01:20:07'),
(343, 'DArnNNbhbywpKCZdStvBuYuda', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Forum Shopping costs Rs.100000 to this litigant', '<h4><b><span style=\"font-size: 0.875rem;\">{“Forum Shopping” is a term for the practice of unscrupulous trying to get their cases heard in the court which they perceive is most likely to provide a favorable judgment.}</span><br></b><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The Karnataka High Court, Chief Justice Abhay Shreeniwas Oka and Justice Sachin Shankar Magadum, castigated a litigant who wanted his matter to be heard by a non-Karnataka Judge alleging that the Judge who is seized of the matter is being influenced by a former Chief Justice of India. The Court dismissed the petition with hefty fine of Rs. 1,00,000/-.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The observed that “The allegation is that most of the Judges show reveration to the undisputed intellect of the retired CJI…. We must remind the petitioner that Hon’ble Judges who are holding constitutional posts are human beings and they are bound to have respect for those who are really honourable and those who possess very high intellect. However, the Judges have taken oath under the Constitution, merely because they respect somebody does not mean that the Judges will be guided by the said person when they discharge their judicial and their constitutional duties.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“The petitioner should not be under impression as far as this court is concerned the matter is over. We have noted the statement made before the single judge. We expect the petitioner to immediately go before the single judge and withdraw the said submissions. If the said submission is not withdrawn the option of initiating suo-motu proceeding always remains open.”<br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; text-align: left;\"><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></span></div></span></div></h4>', '2f00ba3d6de745b935cea1c96a2aed88.png', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-14', 1, '', '', '2021-01-16 02:18:07', '2021-01-20 22:26:28'),
(344, '5qAfYcOFJpr9VepBiszFddCYw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Section 138. Notice returned with endorsement addressee is left. Same does not amount to deemed service of notice. Accused is entitled to benefit of doubt regarding service of notice. Andra Pradesh High Court.', '<h4><span style=\"font-size: 0.875rem;\"><b>K. Annaji Rao vs N. Krishna Raju Sekhar (2004) 2 AP LJ 63 (SN)</b></span><br></h4><h4><span style=\"font-size: 1.3125rem;\"><br></span></h4><h4><span style=\"font-size: 1.3125rem;\">PDF of the Judgment</span><br></h4><h4><br><a href=\"https://dakshalegalhome.files.wordpress.com/2021/01/cheque-bounce-addressee-left.pdf\" target=\"_blank\">cheque-bounce-addressee-left</a></h4>', '6c06fc4c1f9f9795f365c6cc70438ad0.png', '2b441c65e741bf44fdc7e6d3aff7959e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-15', 1, '', '', '2021-01-16 02:21:25', '2021-01-20 22:25:40'),
(345, 'HRL9Dqltqdx7UrwwOh5OvZZji', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Section 138. Return of cheque with endorsement account closed payment stopped referred to the drawer signatures do not match image is not found. Any attempt to prevent the cheque from being honoured would be an offence. Supreme', '<h4><span style=\"font-size: 0.875rem;\"><b>Laxmi Dyechem v. State of Gujarat, (2012) 13 SCC 375.&nbsp;</b></span><br><br><b>Judgment Link:</b><a href=\"https://main.sci.gov.in/jonew/judis/39772.pdf\" target=\"_blank\"> https://main.sci.gov.in/jonew/judis/39772.pdf</a><br><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant paragraphs:</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">16. The above line of decisions leaves no room for holding that the two contingencies envisaged under Section 138 of the Act must be interpreted strictly or literally. We find ourselves in respectful agreement with the decision in Magma case (1999) 4 SCC 253 that the expression “amount of money … is insufficient” appearing in Section 138 of the Act is a genus and dishonour for reasons such “as account closed”, “payment stopped”, “referred to the drawer” are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138, so also dishonour on the ground that the “signatures do not match” or that the “image is not found”, which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">16.1. This Court has in the decisions referred to above taken note of situations and contingencies arising out of deliberate acts of omission or commission on the part of the drawers of the cheques which would inevitably result in the dishonour of the cheque issued by them. For instance, this Court has held that if after issue of the cheque the drawer closes the account it must be presumed that the amount in the account was nil hence insufficient to meet the demand of the cheque. A similar result can be brought about by the drawer changing his specimen signature given to the bank or in the case of a company by the company changing the mandate of those authorised to sign the cheques on its behalf. Such changes or alteration in the mandate may be dishonest or fraudulent and that would inevitably result in dishonour of all cheques signed by the previously authorised signatories. There is in our view no qualitative difference between a situation where the dishonour takes place on account of the substitution by a new set of authorised signatories resulting in the dishonour of the cheques already issued and another situation in which the drawer of the cheque changes his own signatures or closes the account or issues instructions to the bank not to make the payment. So long as the change is brought about with a view to preventing the cheque being honoured the dishonour would become an offence under Section 138 subject to other conditions prescribed being satisfied.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">16.2. There may indeed be situations where a mismatch between the signatories on the cheque drawn by the drawer and the specimen available with the bank may result in dishonour of the cheque even when the drawer never intended to invite such a dishonour. We are also conscious of the fact that an authorised signatory may in the ordinary course of business be replaced by a new signatory ending the earlier mandate to the bank. Dishonour on account of such changes that may occur in the course of ordinary business of a company, partnership or an individual may not constitute an offence by itself because such a dishonour in order to qualify for prosecution under Section 138 shall have to be preceded by a statutory notice where the drawer is called upon and has the opportunity to arrange the payment of the amount covered by the cheque. It is only when the drawer despite receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount that the dishonour would be considered a dishonour constituting an offence, hence punishable. Even in such cases, the question whether or not there was a lawfully recoverable debt or liability for discharge whereof the cheque was issued would be a matter that the trial court will examine having regard to the evidence adduced before it and keeping in view the statutory presumption that unless rebutted the cheque is presumed to have been issued for a valid consideration.<br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem; text-align: left;\"><br>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></div></span></div></h4>', 'b3549f6d6af5866d74f08cc640bec3cd.png', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-15', 1, '', '', '2021-01-16 02:25:40', '2021-01-20 22:24:56'),
(346, 'O17J2zEIPc3lFdm08BMVkxVdJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suits founded on the tort of defamation need to be tried expeditiously. Public memory being too short the claim for redressal for the hurt of reputation merits speedier consideration. Karnataka High Court.', '<h4><span style=\"font-size: 0.875rem;\"><b>H.D.Devegowda vs M/s. Nandi Infrastructure Corridor Enterprise Limited. Writ Petition 725/2021 decided on 15 January 2021.</b></span><br><br><b>Judgment Link: </b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358443/1/WP725-21-15-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358443/1/WP725-21-15-01-2021.pdf</a><br><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant paragraphs:&nbsp;</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">2 (c) ….The opinion of the learned judge that the petitioner has been dragging on the suit proceeding is formed on the&nbsp; basis&nbsp; of what has been reflected in the Order Sheet; there is no reason to doubt the same; in matters like this, a Writ court cannot run a race of opinions with learned judges of the&nbsp; Courts&nbsp; below.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">2(d) The suits founded on the tort of defamation need to be tried as expeditiously as possible; reputation, be&nbsp; it&nbsp; personal or occupational, for any person is sacrosanct; the Apex Court has ruled that, the right to reputation is a facet of Article 21 of the Constitution of India; the public memory being too short to be little, the claim for redressal for the hurt of reputation merits speedier consideration and ideally speaking, before the public memory fades; in defamation&nbsp; suits, award of damages in terms of money hardly constitutes&nbsp; a full recompense for the injury suffered; delayed justice makes it still worse; this is an added reason for the speedy&nbsp; trial of such suits; they cannot be allowed to be dragged on indefinitely; this inarticulate premise having animated the decision of the learned trial judge, impugned order is not vulnerable for challenge.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(e) The impugned order cannot be faltered for yet another reason too; learned judge of the Court below having exercised his discretion in accordance with rules of reason &amp; justice, has made the impugned order the kind of which does not merit a deeper examination at the hands of a Writ Court exercising a limited supervisory jurisdiction constitutionally vested in it by Article 227, vide SADHANA LODH Vs. NATIONAL INSURANCE CO. LTD., &amp; ANOTHER, (2003) 3 SCC 524.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">In the above circumstances, this writ petition being devoid of merits, is liable to be rejected in limine and accordingly, it is.</span></div></h4><h4><span style=\"font-size: 1.3125rem;\"><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></span><br></h4>', 'c3b36d2e3c3ec1f5047e30fe8d775ba1.jpg', 'e32829cba9cb0eec0c3d3feb39a208fe.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-16', 1, '', '', '2021-01-17 04:37:37', '2021-01-20 22:22:56'),
(347, 'cc0lmepzXnLRJ763LapKL7zsj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Delay tactics by defendant. Karnataka High Court rejects H.D. Devegowda petition to reopen the trial against him for defamation.', '<h4><span style=\"font-size: 0.875rem;\"><b>H.D.Devegowda vs M/s. Nandi Infrastructure Corridor Enterprise Limited. Writ Petition 725/2021 decided on 15 January 2021.</b></span><br><br>Judgment Link: <br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358443/1/WP725-21-15-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358443/1/WP725-21-15-01-2021.pdf</a><br><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant paragraphs:&nbsp;</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">2(a) The suit was filed by the&nbsp; respondent on 27.06.2012;&nbsp; it is founded on alleged defamation; plaintiff claims the damages in a sum of Rupees Ten Crore; Written Statement has been filed on 13.08.2012 resisting the suit; issues have been framed years ago; plaintiff’s evidence was completed on 06.02.2019; matter was posted to 26.02.2019 for the defence evidence; however, petitioner &amp; his counsel remained absent and therefore, his evidence being taken as nil, case&nbsp; was&nbsp; posted for arguments.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">2 (c) ….The opinion of the learned judge that the petitioner has been dragging on the suit proceeding is formed on the&nbsp; basis&nbsp; of what has been reflected in the Order Sheet; there is no reason to doubt the same; in matters like this, a Writ court cannot run a race of opinions with learned judges of the&nbsp; Courts&nbsp; below. When the suit was posted for arguments, about a year thereafter the subject applications are moved once again, for reopening the suit stage; no affidavit of the petitioner is filed in support thereof nor any reason is assigned for&nbsp; not filing one. The explanation offered by the advocate on record as above on behalf of the petitioner for not availing the umpteen opportunities earlier granted for leading defence evidence is hardly plausible, to say the least.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">2(d) The suits founded on the tort of defamation need to be tried as expeditiously as possible; reputation, be&nbsp; it&nbsp; personal or occupational, for any person is sacrosanct; the Apex Court has ruled that, the right to reputation is a facet of Article 21 of the Constitution of India; the public memory being too short to be little, the claim for redressal for the hurt of reputation merits speedier consideration and ideally speaking, before the public memory fades; in defamation&nbsp; suits, award of damages in terms of money hardly constitutes&nbsp; a full recompense for the injury suffered; delayed justice makes it still worse; this is an added reason for the speedy&nbsp; trial of such suits; they cannot be allowed to be dragged on indefinitely; this inarticulate premise having animated the decision of the learned trial judge, impugned order is not vulnerable for challenge.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(e) The impugned order cannot be faltered for yet another reason too; learned judge of the Court below having exercised his discretion in accordance with rules of reason &amp; justice, has made the impugned order the kind of which does not merit a deeper examination at the hands of a Writ Court exercising a limited supervisory jurisdiction constitutionally vested in it by Article 227, vide SADHANA LODH Vs. NATIONAL INSURANCE CO. LTD., &amp; ANOTHER, (2003) 3 SCC 524.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">In the above circumstances, this writ petition being devoid of merits, is liable to be rejected in limine and accordingly, it is.</span></div></h4><h4><span style=\"font-size: 1.3125rem;\"><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></span><br></h4>', 'fad451787ba9bf58a553fadf71ff0cdb.jpg', '4fc548837f1544e323f8345bcb9ba112.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-16', 1, '', '', '2021-01-17 04:42:16', '2021-01-20 22:20:00'),
(348, 'GRvA4ml27sWKzTVwr5BVYZ9i2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bangalore Turf Club Ladies Club and The Institute of Engineer India are public authority under the Right to Information Act 2005. Karnataka High Court.', '<h4><span style=\"font-size: 0.875rem;\"><b>Bangalore Turf Club Limited vs State Information Commissioner. Writ Petition 18449/2015 and connected matters decided on 13 January 2021.</b></span><br><br><b>Judgment Link:</b><br><a href=\"http://Judgment Link: https://karnatakajudiciary.kar.nic.in/noticeBoard/WP18449.2015_16012021.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/noticeBoard/WP18449.2015_16012021.pdf</a><br><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant paragraphs:</b><span style=\"font-size: 1.3125rem;\"> 2. In these petitions, contesting respondents – complainants filed applications seeking certain information from the respective petitioners. In not providing information sought</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">or in not taking any action on their application, contesting respondents resorted to approach KIC and KIC passed order against each of the petitioner.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">30. …it is evident that petitioners have availed concession of lease amount. If one takes note of the market value as on the date of various lease deeds, it is evident that larger chunk of monetary gains has favoured the petitioners from the State Largesse. In fact, State Government should have resorted to distribute the State Largesse while adhering to Article 14 of the Constitution, Courts</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">have time and again held that State Largesse is required to be distributed while adhering to Article 14 of the Constitution</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">31..one has to come to the conclusion that State Largesse had not been distributed in the manner</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">known to law.&nbsp; At the same time, each of the petitioners are beneficiaries of State Largesse at a concessional rate as is evident from the records and findings given by the KIC in its orders read with audit reports.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">32. It is necessary to take note of what is meant by ‘Largesse’ – Government is simply funding its Largesses towards private charities anyway, and politicizing the nonprofit world to an unprecedented degree in the process.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">33. Further, the following would come under the definition of ‘Largesse’ viz., synonyms of ‘Largessee’ are bestowal, comp, donation, durative, faining, free bie, gift,</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">give away, handsel, lagniappe, present, presentation, alms, benefaction, beneficence, benevolence, charity, contribution, dole, hand out, oblation, offering, philanthropy, tithe, grant, subsidy, remberance, tribute, valentine, bonus, boon, windfall, courtesy, favour,</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">generosity, sacrifice, gratuity, propine, award, prize, reward, liberalise. If these meanings are taken into consideration for the purpose of State Largesse, one has to draw inference that each of the petitioners are the beneficiary of substantially financed by way of indirectly by funds provided by the Government.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">36. No-doubt each of the petitioners were not controlled by the Government of Karnataka in any manner and at the same time Section 2(h) of Act, 2005 are to be read independently from Section2(h)(a) to (d)and (i) and (ii). If part of (d) and (i) and (ii) ingredients are taken into</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">consideration, petitioners would fall under the definition of ‘public authority’, since, monetarily each of the petitioners were beneficiary as their lease deeds revealed that they have been given substantial financial aid/concession.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">47. In view of the principle laid down in the case of THALAPPALAM’s supra and DAV supra, it is crystal clear that Section 2(h) is required to be taken note of “and</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">includes any” (i) and (ii) are to be read independently. Petitioners are all non-government organizations and who are all benefited from the State like indirectly funded by the State Government, while availing at concessional rate in respect of leased out land in favour of each of the petitioner. Consequently, non-government organization whoever benefited by directly or indirectly by funds provided by the appropriate Government would fall under</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">‘‘public authority’’ under Section 2(h) of Act, 2005. Since substantial financing can be both direct or indirect. To give an example, if a land in a city is given free of cost or on heavy discount to hospitals, educational institutions or such other body like sports club, this in itself could be substantial</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">financing. The very establishment of such an institution, if it is dependent on the largesse of the State in getting the land at a cheap price, would mean that it is substantially</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">financed. Further, the value of the land will have to be evaluated not only on the date of allotment but even on the date when the question arises as to whether the said body</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">or NGO is substantially financed. In Writ Petition No.58192/2013 the order of KIC dated 16.09.2013 at para.10 reveals the following details of extent of land, building leased and the period of lease, lease rent to be released, amount of lease rent released and revenue foregone:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">50. If these material information is taken into consideration, one has to draw inference that petitioners do fall under the definition of ‘public authority’ under Act.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Petitions dismissed.</span></div></h4><h4><span style=\"font-size: 1.3125rem;\"><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></span><br></h4>', 'ee593bd43277b712958b895fd01ba2e9.jpg', 'c7d5e81b5ae6bf2c3965a4ef5f8321e2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-16', 1, '', '', '2021-01-17 04:49:21', '2021-01-20 21:57:40'),
(349, 'BChU02XmXO4IVcLpqrip2IObw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bangalore and Mysore Turf Clubs. Staggering revenue loss to Government. Karnataka High Court expresses displeasure at the sad state of affairs.', '<p><span style=\"font-size: 0.875rem;\"><b>Bangalore Turf Club Limited vs State Information Commissioner. Writ Petition 18449/2015 and connected matters decided on 13 January 2021.<br></b></span><span style=\"font-size: 0.875rem;\"><b> Justice P.B. Bajanthri.</b><br></span><br><b>Judgment Link: </b><br><a href=\"https://karnatakajudiciary.kar.nic.in/noticeBoard/WP18449.2015_16012021.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/noticeBoard/WP18449.2015_16012021.pdf<br></a><br><b>Relevant paragraphs: </b><br></p><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">28. In this context, it is necessary to reproduce extract of the KIC order dated 01.07.2013 (Sri Umapathi S vs PIO &amp; The Secretary, BTC, (Para.10 and 11 of W.P.18449/2015) “Firstly, land measuring 32,17,995 Sq.Ft, where the Bangalore Race Court is existing was given on lease to the Bangalore Turf Club as per the lease agreement dated 09-09-1923 and except the collection of betting tax, entertainment tax and license fee, no other revenue was collected in respect of the land till GO No.FD 14 CRC67 dated 02-11-1968 was issued by the Government. In the aforesaidmGO, lease amount of Rs.50,000/- per annum was fixed and later it was enhanced to Rs.1,00,000, 5,00,000, 30,00,000. However, on the request&nbsp;</span><span style=\"font-size: 0.875rem;\">of the Turf Club to treat it on par with the KSCA or Golf Club as a sports activity, and modify the decision fixing the lease amount at Rs.30,000,00/- per year was considered by the&nbsp;</span><span style=\"font-size: 0.875rem;\">government and issued the GO dated 05-09- 2000 leasing from 01-01-1989 to 31-12-1999 and from 01-01-2000 to 31-12-2009 for lease amount of Rs.10,000,00/- per year and thereafter to increase @ 10% per year. Considering (a) the location of the land in the heart of the Bangalore Metropolitan City, (b) extent of 32,17,995 Sq. Ft of land being&nbsp;</span><span style=\"font-size: 0.875rem;\">leased FREE for 45 years from 09-09-1923 to 02-11-1968, (c) and then at the rate of Rs.50,000/- per year i.e., at a very meager rate of Re.0.015/- sq ft, and (d) then again at&nbsp;</span><span style=\"font-size: 0.875rem;\">a very meager rate of Re.0.92 per sq. ft. per year for over a period of 21 years from 01-01-1989 to 31-12-2009 (see CAG report), it is evident to note that the government has</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">indirectly financed the Club.”</span></div><br><p style=\"text-align: justify;\"><span style=\"font-size: 0.875rem;\">29. In the aforementioned writ petition in W.P.58192/2013, the order of KIC dated 16.09.2013 (UMAPATI S vs Secretary, Mysore Race Club Limited., Mysore, relevant Paras. 9, 10 and 11 reads as under: “9) In the Government Order No.FD.21.CRC.94 Bangalore dated 30-11-1996 it is stated that an area of 153 acres and 39 guntas of land in SY. Nos.4 and 74 of Kurubarhalli, Mysore Kasaba Hobli has been leased on lease amount of Rs.80,000/- Per Annum for the first five years period, thereafter, lease rent was Rs.1.6 lakhs per annum from 5-2-1985 to 31-3-1986, from 1-4- 1986 to 31-3-1991 it was Rs.1.6 lakhs per annum, from 1-4-1991 to 31-3-1996 lease amount was Rs.2 lakhs per annum, from 1996 to 2001 it was Rs. 2.5 lakhs per annum and from 1-4-2001 to 31- 3-2006 lease amount was Rs. 2.75 laksh per annum. From 1-4-2006 lease was ot renewed till 5-3-2013 and on 5-3-13 same has been renewed vide Government Order PWD.213.BMS.2007 Bangalore dated 5-3-13 and Annual Lease amount is fixed at the rate of 2% of the Annual Gross Income of Mysore Race Club Ltd.” 7.2.82 Scrutiny of records in four test-checked divisions revealed that fixation of concessional rent while leasing Government lands/buildings for non-charitable commercial purposes in respect of four premises resulted in foregoing of revenue of Rs.630.94 crore for the period from 1 April 2003 to 31 March 2008&nbsp;</span><span style=\"font-size: 0.875rem; text-align: left;\"><br></span><span style=\"font-size: 0.875rem; text-align: left;\"><br>30. Perusal of the aforesaid information, it is evident that petitioners have availed concession of lease amount. If one takes note of the market value as on the date of various lease deeds, it is evident that larger chunk of monetary gains has favoured the petitioners from the State Largesse. In fact, State Government should have resorted to distribute the State Largesse while adhering to Article 14 of the Constitution, Courts have time and again held that State Largesse is required to be distributed while adhering to Article 14 of the Constitution.&nbsp;</span><span style=\"font-size: 0.875rem; text-align: left;\"><br></span><span style=\"font-size: 0.875rem; text-align: left;\"><br>31….one has to come to the conclusion that State Largesse had not been distributed in the manner known to law. At the same time, each of the petitioners are beneficiaries of State Largesse at a concessional rate as is evident from the records and findings given by the KIC in its orders read with audit reports</span><span style=\"font-size: 0.875rem; text-align: left;\"><br></span><span style=\"font-size: 0.875rem; text-align: left;\"><br>32. It is necessary to take note of what is meant by ‘Largesse’ – Government is simply funding its Largesses towards private charities anyway, and politicizing the nonprofit world&nbsp;</span><span style=\"font-size: 0.875rem; text-align: left;\">to&nbsp;&nbsp;</span><span style=\"font-size: 0.875rem; text-align: left;\">an&nbsp;</span><span style=\"font-size: 0.875rem; text-align: left;\">unprecedented degree in the process</span></p><p><span style=\"font-size: 1.3125rem;\"><b>Compiled by S. Basavaraj, Advocate, Daksha Legal. raj@dakshalegal.com</b></span></p><p></p>', 'c0b8a4ad3215b8b462c2877a5f1fb4f3.jpeg', '61947aae7bf05547b39e69c754463891.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-16', 1, '', '', '2021-01-18 05:09:40', '2021-01-20 21:59:16');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(350, 'gCD70GWfomPL2nJpYvDIXs8Db', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Transfer of case under Section 24. Though balance of convenience of the parties is a relevant consideration in matrimonial matters convenience of the wife is to be preferred. Karnataka High Court.', '<h4><p><span style=\"font-size: 0.875rem;\"><b>Shivangouda vs Savita. </b></span></p><p><span style=\"font-size: 0.875rem;\"><b>Civil Petition 200006/2019 decided on 4 January 2021. </b></span></p><p><b style=\"font-size: 0.875rem; font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Justice Jyothi Mulimani. </b></p><b><h4><br></h4></b><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">It would be relevant to note that the basic principle governing the granting of a petition under Section 24 CPC is that the petition is not to be dealt with in a light hearted manner and transfer of a case from one Court to another should not be granted readily for any fancied notion of the petitioning litigant because of the reason that such transfer of a case from one Judge to another in effect casts a doubt on the integrity, competence and reputation of the concerned Judge. Unless and until a sufficiently cogent ground is disclosed, transfer should not be allowed as a matter of course. For the purpose of such transfer, balance of convenience of the parties should be considered. It is well established that whenever Courts are called upon to consider the plea of transfer in matrimonial matters, the convenience of the wife is relevant consideration.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">I can say only this much that “unless the balance is strongly in favour of petitioner, the respondent’s choice of forum should rarely be disturbed”. This is strong language. However, in matrimonial cases, it is readily understandable that a strong preference should be given to the forum and Court chosen by the wife.</span></div></h4>', 'bb91352306e8b609d0e0bcdbd9a57b6b.jpeg', 'ca2cd9ef91de58efc0c4997cec33972e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-10', 1, '', '', '2021-01-18 05:11:58', '2023-01-10 22:44:30'),
(2555, '4Cf22BBPuGEHgl3yvzkl5DuxD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'If land falls within Corporation limits, there is no requirement to obtain permission under Section 95 of the Karnataka Land Revenue Act for diverting agricultural land for non-agricultural purpose. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Akshay Ramachand Jamnani Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 105637 of 2022 decided on 13 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. Petitioner claims that he has purchased the\r\nproperty bearing R.S. No.127/2 measuring 15 guntas through a\r\nregistered sale deed dated 24.04.2013 for a valuable\r\nconsideration and, in pursuance of the same, they submitted an\r\napplication with respondent No.3 to mutate their name in the\r\nrecords bearing CTS No.1594. The said application is not </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">considered stating that the land in question is not converted for\r\nnon-agricultural purpose. Hence, this writ petition.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. Admittedly, the land bearing Sy.No.127/2\r\nmeasuring 15 guntas is situated within the Corporation limits of\r\nBelagavi. A co-ordinate Bench of this Court in W.P. No.105734\r\nof 2016 disposed of on 21.02.2018 has held that if the land\r\nfalls within the Corporation limits, the provisions of Karnataka\r\nLand Revenue Act ceases to apply to the said land. The order\r\npassed in the said writ petition was confirmed by the division\r\nbench of this Court in W.A. No.100124 of 2018. In an appeal\r\nfiled before the Hon’ble Supreme Court by the Urban\r\nDevelopment Authority against the judgment passed in the said\r\nwrit appeal, the Hon’ble Supreme Court confirmed the order\r\npassed by this Court.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. In view of the law laid down by this Court, it is held\r\nthat there is no requirement to obtain permission under Section\r\n95 of the Karnataka Land Revenue Act, for diverting the land in\r\nquestion for non-agricultural purpose. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i) The writ petition is allowed. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9492b41cdb2ab02e6b201d6fd24288cc.jpeg', '0589a0cf2c17b8f860565efbb2512a0e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-12', 1, '', '', '2023-01-11 12:29:34', '2023-01-12 03:25:01'),
(351, 'MFsneyllF43iQKNdYSHvkQUMA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court follows 1948 Privy Council judgment on boundary dispute. The judgment has become Locus Classicus even after seven decades HC', '<h4><p><span style=\"font-size: 0.875rem;\"><b>Dr. Jayasheela Venu and another vs A.J.F. D’Souza and others. Regular First Appeal 1225/2011 decided on 15 January 202</b><br><br></span></p><b>Judgment Link:</b> <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358438/1/RFA1225-11-15-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358438/1/RFA1225-11-15-01-2021.pdf</a><br></h4><h4>Locus Classicus = An authoritative passage from a standard work that is often quoted as an illustration.<br></h4><h4>Appeal allowed.<br></h4><h4><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4>', '34526bdd0a0fb847df945c8f65a1f0a3.png', '90630b6dd1baac383bb2d050848db91f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-17', 1, '', '', '2021-01-18 05:14:54', '2021-01-20 17:04:28'),
(352, 'W2XWhmqf3MqrhSXShkMR6lrtO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Partnership Act 1932. When there are only two partners on the death of one of them the firm is deemed to be dissolved even though the contract provides otherwise. Supreme Court.', '<h4><span style=\"font-size: 0.875rem;\"><b>Mohd. Laiquiddin v. Kamala Devi Misra, (2010) 2 SCC 407.</b><br></span><b><br>Judgment Link:</b> <a href=\"https://main.sci.gov.in/jonew/judis/35888.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/35888.pdf</a><br><br><b>Relevant paragraphs: </b><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">22. The sole issue raised by the respondents in this appeal, who are the appellants in Civil Appeals Nos. 4411-12 of 2002, is whether the finding of the courts below that the partnership firm stood dissolved on account of death of one of the partners was correct in the light of the express provisions of the Partnership Act, namely, Section 42(c) of the same.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">23. Before we proceed to examine the correctness of this concurrent finding arrived at by the courts below, it is necessary to examine the relevant provisions of the Partnership Act, 1932 and the relevant clauses of the partnership deed entered between the original plaintiff and the original defendant. “Partnership” is defined under Section 4 of the Act which reads as under:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“4. Definition of ‘partnership’, ‘partner’, ‘firm’ and ‘firm name’.—‘Partnership’ is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all.”</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">24. Section 42 of the Act reads as under:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“42. Dissolution on the happening of certain contingencies.—Subject to contract between the partners a firm is dissolved—</span></div>(a) if constituted for a fixed term, by the expiry of the term;<br>(b) if constituted to carry out one or more adventures or undertakings, by the completion thereof;<br>(c) by the death of a partner; and<br>(d) by the adjudication of a partner as an insolvent.”<br><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">25. Dissolution of a partnership firm on account of death of one of the partners is subject to the contract entered into by the parties. In this context, it is pertinent to refer to the terms of the deed of partnership. Clause 22 of the partnership deed reads as follows:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“The partnership shall be in force for a period of 42 years certain from this date and the death of any partner shall not have the effect of dissolving the firm.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">This clause clearly states that death of any partner shall not have the effect of dissolving the firm. However, in the facts and circumstances of the case, we are not in a position to give absolute effect to this clause of the deed of partnership.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">26. The learned counsel for the respondents contended that since the parties agreed that in spite of the death of any of the partners, the firm shall continue for 42 years irrespective of the death of the original plaintiff (since deceased). They further argued that it clearly contemplates that the legal representative of the partner, who dies, would be under a duty to enter into a fresh deed of partnership. The legal representatives were precluded from claiming benefits if they deny entering into a fresh partnership agreement.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">27. In order to arrive at the conclusion that the partnership firm stood dissolved on account of death of one of the partners, the High Court had rightly placed reliance on S. Parvathammal v. CIT2 wherein the High Court held that in a firm consisting of two partners on account of death of one of the partners, the firm automatically is dissolved and observed as follows: (ITR pp. 161-62)</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“… a partnership normally dissolves on the death of a partner unless there was an agreement to the contrary. There was no such agreement in the original partnership deed. Even assuming that there was such an agreement, in a partnership consisting of two partners, on the death of one of them, the partnership automatically comes to an end and there is no partnership which survives and into which a third party can be introduced. Hence, on the death of S, the original partnership was dissolved. The subsequent taking in of the assessee as a partner was only as a result of the entering into of a new partnership between R and the assessee. Partnership was not a matter of heritable status but purely one of contract.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">In the light of the aforementioned case, it is clear that when there are only two partners constituting the partnership firm, on the death of one of them, the firm is deemed to be dissolved despite the existence of a clause which says otherwise. A partnership is a contract between the partners. There cannot be any contract unilaterally without the acceptance by the other partner.</span></div></h4><h4><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4>', 'c50d19e7c54ff1716451caba93d6a41e.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-17', 1, '', '', '2021-01-18 05:17:38', '2021-01-20 17:06:37'),
(353, 'RSgKPTnalpc7QdevoCSJBJu0I', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Order 40 Rule 1. Appointment of a Receiver in pending suit is only on a prima facie finding that the plaintiff has an excellent chance of success in the suit. Supreme Court.', '<h4><span style=\"font-size: 0.875rem;\"><b>Parmanand Patel v. Sudha A. Chowgule, (2009) 11 SCC 127.</b></span><br><br><b>Judgment Link:</b><a href=\"https://main.sci.gov.in/jonew/judis/34044.pdf\" target=\"_blank\"> https://main.sci.gov.in/jonew/judis/34044.pdf</a><br><div style=\"text-align: justify;\"><br></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">HELD:&nbsp;</b></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">23. A Receiver, having regard to the provisions contained in Order 40 Rule 1 of the Code of Civil Procedure, is appointed only when it is found to be just and convenient to do so. Appointment of a Receiver pending suit is a matter which is within the discretionary jurisdiction of the Court. Ordinarily the Court would not appoint a Receiver save and except on a prima facie finding that the plaintiff has an excellent chance of success in the suit.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">24. It is also for the plaintiff not only to show a case of adverse and conflict claims of property but also emergency, danger or loss demanding immediate action. Element of danger is an important consideration. Ordinarily, a Receiver would not be appointed unless a case has been made out which may deprive the defendant of a de facto possession. For the said purpose, conduct of the parties would also be relevant.<br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; text-align: left;\"><br>C</span><b style=\"font-size: 1.3125rem; text-align: left;\">ompiled by S. Basavaraj, Advocate, Daksha Legal.</b></div></span></div></h4>', '3f2e206bf6a705d8bc738148979f6e1c.png', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-18', 1, '', '', '2021-01-19 04:12:13', '2021-01-20 16:59:18'),
(354, 'FWqoqWpgTxoBvgIq41X9N824H', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Attachment before judgment. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provision as a leverage for coercing the defendant to settle the suit claim', '<h4><span style=\"font-size: 0.875rem;\"><b>Raman Tech. &amp; Process Engg. Co. v. Solanki Traders, (2008) 2 SCC 302</b></span><br><b><br>Judgment Link:</b> <a href=\"https://main.sci.gov.in/jonew/judis/31173.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/31173.pdf</a><br><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">HELD:</b><span style=\"font-size: 1.3125rem;\">&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">4. The object of supplemental proceedings (applications for arrest or attachment before judgment, grant of temporary injunctions and appointment of receivers) is to prevent the ends of justice being defeated. The object of Order 38 Rule 5 CPC in particular, is to prevent any defendant from defeating the realisation of the decree that may ultimately be passed in favour of the plaintiff, either by attempting to dispose of, or remove from the jurisdiction of the court, his movables. The scheme of Order 38 and the use of the words “to obstruct or delay the execution of any decree that may be passed against him” in Rule 5 make it clear that before exercising the power under the said Rule, the court should be satisfied that there is a reasonable chance of a decree being passed in the suit against the defendant. This would mean that the court should be satisfied that the plaintiff has a prima facie case. If the averments in the plaint and the documents produced in support of it, do not satisfy the court about the existence of a prima facie case, the court will not go to the next stage of examining whether the interest of the plaintiff should be protected by exercising power under Order 38 Rule 5 CPC. It is well settled that merely having a just or valid claim or a prima facie case, will not entitle the plaintiff to an order of attachment before judgment, unless he also establishes that the defendant is attempting to remove or dispose of his assets with the intention of defeating the decree that may be passed. Equally well settled is the position that even where the defendant is removing or disposing his assets, an attachment before judgment will not be issued, if the plaintiff is not able to satisfy that he has a prima facie case.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">6. A defendant is not debarred from dealing with his property merely because a suit is filed or about to be filed against him. Shifting of business from one premises to another premises or removal of machinery to another premises by itself is not a ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide and valid and also satisfy the court that the defendant is about to remove or dispose of the whole or part of his property, with the intention of obstructing or delaying the execution of any decree that may be passed against him, before power is exercised under Order 38 Rule 5 CPC. Courts should also keep in view the principles relating to grant of attachment before judgment.</span></div></h4><h4><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4>', 'a0cff6db559449b299babedc87b58e63.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-18', 1, '', '', '2021-01-19 04:16:02', '2021-01-20 16:53:26'),
(355, 'XhuDKgG7SgBcdyxRrsKG4kTKO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Challenge to appointment of M.P. Renukacharya and others as Advisors to Chief Minister. High Court of Karnataka orders notice on the PIL filed by Samaj Parivarthana Samudaya.', '<h4><span style=\"font-size: 0.875rem;\">The High Court of Karnataka, Chief Justice Abhay Shreeniwas Oka and Justice Sachin Shankar Magadum, ordered notice in a Public Interest Litigation filed by Samaj Parivarthan Samudaya challenging the appointment of Sriyuts – M.P. Renukacharya , Mahadev Prakash, Mohan A. Limbikai , Sunil G.S., Shankargowda Patil, M.B. Marmkal and Laksminarayana as advisors to Chief Minister and conferring Minister status to them. The writ petition questioned the appointments as violative of Article 164(1A) of the Constitution of India. Read the petition.<br></span></h4><h4><span style=\"font-size: 0.875rem;\"><br></span>Writ Petition 787/2021&nbsp;</h4>', 'c3dc7a76827ba9f814b44e4f2c3dffa5.jpg', '119b9aa1a2c822aa10a68509943a982a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-18', 1, '', '', '2021-01-19 04:21:41', '2021-01-19 04:21:41'),
(356, 'ce8s5Hnon0iS6H2o6KsjoeHsT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Creating posts having trappings of the Ministers to overcome the upper ceiling limit under Article 164 1-A is ultra vires the constitutional mandate. Karnataka High Court.', '<h4><span style=\"font-size: 0.875rem;\"><b>M.B.Adinarayana vs The State of Karnataka and others. Writ Petition 2073/2020 and connected matter decided on 4 January 2020.</b></span><br><br><b>Judgment Link: </b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/312451/1/WP2073-19-04-01-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/312451/1/WP2073-19-04-01-2020.pdf</a><br><div style=\"text-align: justify;\"><br></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant paragraphs:</b><span style=\"font-size: 1.3125rem; font-weight: 500;\">&nbsp;</span></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">1 and 5. The question which arises for consideration in both the petitions is whether the Karnataka Parliamentary Secretaries Salaries, Allowances and Miscellaneous Provisions Act,&nbsp; 1963 (for short ‘the said Act of 1963) as amended by the Karnataka Parliamentary Secretaries Allowances (Amendment)&nbsp; Act,&nbsp; 1999 is constitutionally valid? The said Act of 1963 empowers the Hon’ble Chief Minister to appoint Parliamentary Secretaries from amongst the members of the Karnataka Legislative Assembly and the Karnataka Legislative Council.&nbsp; The basic challenge is on the ground that the State Legislature lacked the legislative competence to make the said Act.&nbsp; &nbsp;The other challenge is on the ground that for all intents&nbsp; &nbsp;and purposes, the Parliamentary Secretaries are on par with the Ministers and the said Act enables the Hon’ble Chief Minister to cross the ceiling on number of Ministers prescribed under Article 164 (1-A) of the Constitution of India. Therefore, the said Act infringes the aforesaid Constitutional provision. These&nbsp; are broadly the two main grounds on which challenge has been incorporated.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">11. It is true that there is no specific provision under the said Act, which specifically lays down that the Parliamentary Secretaries shall be entitled to the status of Hon’ble Ministers or Ministers of State or Deputy Ministers to whom, the Hon’ble Governor administers the oath of office on the advice of the Hon’ble Chief Minister. But, the said Rules show that there is hardly any difference between the role of a Deputy Minister or a Minister of State without independent charge and a&nbsp; Parliamentary Secretary. The most of the duties and functions of Parliamentary Secretaries are akin to the Legislative duties of a Deputy Minister or a Minister of State without independent charge.&nbsp; The drastic amendments made by the amendment Act&nbsp; of 1999 makes the intention of the Legislature&nbsp; very&nbsp; clear.&nbsp; Firstly, as stated earlier, by the amended Act, a provision was made for the first time that the&nbsp; Parliamentary Secretaries shall&nbsp; be entitled to the salaries and allowances equivalent to the salaries and allowances admissible to the Hon’ble Ministers.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Judgment of the Supreme Court in Bimolangshu Roy (dead) through Lrs –vs- State of Assam and another (2018) 14 SCC 408) relied on.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">19. The Apex Court has held that the State Legislature has no competence to enact a law providing for appointment of Parliamentary Secretaries. Moreover, the said&nbsp; Act does not confer any privileges on the members of both Houses as legislators qua Legislature.</span></div><div style=\"text-align: justify;\"><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">24. There is another aspect of the case based on the provisions of Article-164 (1-A) of the Constitution. We have already held in paragraph-11 above that there is hardly any difference between the role of a Deputy Minister and a Parliamentary Secretary. On a conjoint reading of the various provisions of the said Act and the said Rules, we have already come to the above conclusion, which shows that for all intents and purposes, the office of the Parliamentary Secretaries has trappings of the post of Hon’ble Ministers of State without independent charge or at least Hon’ble Deputy Ministers. The said Act will work as a devise available to the Hon’ble Chief Minister to appoint the members of the&nbsp; Legislative&nbsp; Assembly and Legislative Council of his choice as parliamentary Secretaries, who cannot be made as Ministers&nbsp; due&nbsp; to constraints of Article 164(1-A). This will completely defeat and nullify the upper ceiling limit imposed by Article 164(1-A) of the Constitution of India on number of Ministers. Hence, even otherwise, the said enactment is ultra vires the constitutional mandate in Article 164(1-A).</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">We hold that the State Legislature of Karnataka had no legislative competence to enact the Karnataka Parliamentary Secretaries Salaries, Allowances and Miscellaneous Provisions Act, 1963 as amended by Act No. 7 of 1999.</span></div></h4><h4><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4>', 'a5fdee28619e44cdad8a4ae293b7c678.png', '90ee275616a0df6fa4abd179a90eac7a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-18', 1, '', '', '2021-01-19 04:23:59', '2021-01-20 16:45:49'),
(357, 'o3m8JWJhpyQkYWTX6qftzhkpN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court upholds constitutional validity of the Karnataka Land Grabbing Prohibition Act 2011.', '<h4><span style=\"font-size: 14px;\"><b>Shriram Properties Pvt Ltd vs State of Karnataka and others. Writ Petition 47747/2017 and connected matters decided on 19 January 2021. Justice Aravind Kumar and Justice B.A. Patil.</b></span></h4><h4><span style=\"font-size: 14px;\"><b>Judgment Link:&nbsp;</b></span></h4><h4><span style=\"font-size: 14px;\"><b><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/363117/1/WP47747-17-19-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/363117/1/WP47747-17-19-01-2021.pdf</a></b></span></h4><h4><span style=\"font-size: 14px;\"><b>HELD: We uphold the validity of the Constitutional validity of the Karnataka Land Grabbing Prohibition Act, 2011. The evidence admitted in civil court can be admitted in the Special Court.</b></span></h4><h4><span style=\"font-size: 14px;\"><b>Location of Land Grabbing Courts in capital city is onerous. Transferring of cases taking jurisdiction of the Civil Court without any reasons is not correct. Hence we direct the Special Court to re examine the transfer of cases.</b></span></h4><h4><span style=\"font-size: 14px;\"><b>Special Court to take note of the observations made in this Judgment and deal with cases individually. Petitioners may apply to the Special Court for dismissal or dropping of the proceedings. Till the adjudication is done, demolition of the building or forcible taking possession is not to be done.</b></span></h4><h4><span style=\"font-size: 14px;\"><b>Mandamus issued to constitute additional courts preferably in all districts.</b></span></h4><h4><br></h4>', '55e49d7d4fe51adb8648ab7f521495f5.png', 'c5d7aacfb0706147112424fd8d2fdf52.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-19', 1, '', '', '2021-01-20 05:51:38', '2021-02-11 23:33:25'),
(358, 'lTQnnHYTK70XzslbPppJULVDs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Authoritative pronouncement of the Karnataka High Court on the tests of motive eye witness interested witness independent witness unlawful assembly in a criminal trial.', '<h4><span style=\"font-size: 0.875rem;\"><b>Pampapathi vs The State of Karnataka. Criminal Appeal 100346/2016 and connected appeals decided on 22 December 2020. Justice B.A. Patil and Justice M.I. Arun.</b><br></span><br>Judgment Link: <br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358937/1/CRLA100127-17-22-12-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358937/1/CRLA100127-17-22-12-2020.pdf</a></h4>', '55d01f29f3365e427e7eb5ce0cc38e38.png', 'ccdd6d4095ad2273e0e32f64489a6d4f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-19', 1, '', '', '2021-01-20 05:54:19', '2021-01-20 16:40:45'),
(359, '2qDVfMcTkIl1zSprpu8Ajgt6W', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constitutional validity of Sections 3 and 4 and 10 of the Insolvency and Bankruptcy Code Amendment Act 2020 upheld by the Supreme Court.', '<h4><span style=\"font-size: 0.875rem;\">Manish Kumar v. Union Of India And Another. WRIT PETITION(C) NO.26 OF 2020 decided on 19/01/2021<br></span><br>Judgment Link:<br><a href=\"https://main.sci.gov.in/supremecourt/2020/583/583_2020_33_1501_25559_Judgement_19-Jan-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/583/583_2020_33_1501_25559_Judgement_19-Jan-2021.pdf</a><br><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Factual antecedents:</b><span style=\"font-size: 1.3125rem;\">&nbsp;The challenge is to Sections 3, 4 and 10 of the Insolvency and Bankruptcy Code (Amendment) Act 2020. Section 3 of the impugned amendment amends Section 7(1) of the Insolvency and Bankruptcy Code, 2016. Section 4 of the impugned amendment incorporates an additional Explanation in Section 11 of the Code. Section 10 of the impugned amendment inserts Section 32A in the Code.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">HELD: The impugned amendments are upheld. However, this is subject to the following directions, issued under Article 142 of the Constitution of India:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">i. If any of the petitioners move applications in respect of the same default, as alleged in their applications, within a period of two months from today, also compliant with either the first or the second proviso under Section 7(1), as the case may be, then, they will be exempted from the requirement of payment of court fees, in the manner, which we have detailed in the paragraph just herein before.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">ii. Secondly, we direct that if applications are moved under Section 7 by the petitioners, within a period of two months from today, in compliance with either of the provisos, as the case may be, and the application would be barred under Article 137 of the Limitation Act, on the default alleged in the applications, which were already filed, if the petitioner file applications under Section 5 of the Limitation Act, 1963, the period of time spent before the Adjudicating Authority, the Adjudicating Authority shall allow the applications and the period of delay shall be condoned in regard to the period, during which, the earlier applications filed by them, which is the subject matter of the third proviso, was pending before the Adjudicating Authority.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">iii. We make it clear that the time limit of two months is fixed only for conferring the benefits of exemption from court fees and for condonation of the delay caused by the applications pending before the Adjudicating Authority. In other words, it is always open to the petitioners to file applications, even after the period of two months and seek them benefit of condonation of delay under Section 5 of the Limitation Act, in regard to the period, during which, the applications were pending before the Adjudicating Authority, which were filed under the unamended Section 7, as also thereafter.</span></div></h4><h4><b>Compiled by Sumana Chamarty, Advocate, Daksha Legal.</b></h4>', '715eaf9f4aabd2bfe7a108ed417b1782.png', '72319448c80f7818b1b206fbf9be80e5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-19', 1, '', '', '2021-01-20 05:57:54', '2021-01-20 16:39:09'),
(360, 'lYGHy2xHNG4buZNL89SAKyuIa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Amendment of written statement to add counter claim. A prayer for counter claim or decree cannot be belatedly superadded once the same becomes time barred. Karnataka High Court.', '<h4><span style=\"font-size: 0.875rem;\"><b>M/s. JSW Steel Limited vs Mysore Minerals Limited. Writ Petition 15190/2020 decided on 13 January 2021.</b></span><br><b><br>Judgment Link: </b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/359218/1/WP15190-20-13-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/359218/1/WP15190-20-13-01-2021.pdf</a><br><b><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant paragraphs:&nbsp;</b></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">1. Petitioner being the plaintiff in a money suit in Com.O.S.No.7213/2012 is at the door steps of the&nbsp; Writ&nbsp; Court for assailing the order dated 10.11.2020 a copy whereof is at Annexure-A whereby the learned LXXXII&nbsp; Addl. City Civil Judge, Bengaluru, having allowed respondent-defendant’s application in I.A.No.IV filed&nbsp; u/o&nbsp; VI&nbsp; Rule 17 r/w&nbsp; Sec.&nbsp; 151&nbsp; of CPC, 1908 has&nbsp; accorded leave&nbsp; to amend the Written Statement for incorporating a Counterclaim therein; the respondent having&nbsp; entered&nbsp; caveat through it’s counsel, opposes the Writ Petition.</span></div><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">4.A The question whether a Counterclaim can be filed separately after the filing of the Written Statement or can&nbsp; be introduced by way of amendment to the already filed Written Statement, subject to compliance of requisites and save with all just exceptions, is no longer res integra vide Ashok Kumar Kalra vs Wind Cdr Surendra Agnihotri and others (2020) 2 SCC 394.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Questions for determination:</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(i) whether leave to incorporate the time- barred Counterclaim by way of amendment to the Written Statement can be granted u/o VI Rule 17 of CPC, 1908 … ? and</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(ii) whether Court granting leave to amend the Written Statement for taking up a Counterclaim&nbsp; can relax the period of limitation prescribed for filing the same, by invoking the doctrine of relation back … ?</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">4F(a) The concept of “bar of limitation” on the one hand and the idea of “delay &amp; latches” on&nbsp; the&nbsp; other&nbsp; by&nbsp; their very nature, are different from each other, although their successful invocation may arguably serve the same purpose in a litigation; the former absolutely bars the recourse to remedy; and the later may deny the remedy in the proceedings in question, the right to remedy being kept open for pursuit in other proceedings; prescription&nbsp; of period of limitation for claiming legal remedies is normally the prerogative of the legislature, whereas, the ground of ‘delay &amp; latches’ is a matter of discretion inhering the Courts; this discretion needs to be exercised in accordance with the rules of reason &amp; justice, is beside the point; the right to remedy ordinarily commits legal suicide if the limitation period prescribed therefor lapses; no court/authority has discretion to entertain&nbsp; the&nbsp; claim&nbsp; for&nbsp; it’s grant; Sec.3(1) of the Limitation Act, 1963 dictates their rejection at the threshold, regardless&nbsp; of&nbsp; the&nbsp; contention from the other side.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">4F(a) The delayed making of a Counterclaim&nbsp; by way&nbsp; of amendment of Written Statement is one thing and the making of a time barred Counterclaim by way of such amendments, is another; in treating the former, the court has discretion in the sense that it&nbsp; may&nbsp; grant&nbsp; leave&nbsp; to amend the Written Statement or refuse; in other words, a Written Statement can be amended even belatedly, for introducing a Counterclaim therein with the leave of court, provided that leave to amend is sought for within the statutory period of limitation; for that purpose, a Counterclaim shall be treated to be a suit by fiction of law; however, leave may be denied inter alia on the ground of ‘delay &amp; latches’, even if the period of limitation has not expired; in such event, defendant may bring&nbsp; a&nbsp; separate&nbsp; suit; this is one scenario.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">4F(c) The other scenario is: where a time barred Counterclaim is sought to be introduced by amendment to the Written Statement;&nbsp; in such&nbsp; a case,&nbsp; no&nbsp; leave can ever&nbsp; be granted; Court has no discretion to entertain such a claim; in such matters, there is no discretion to disobey the mandate of law, namely, Sec.3(1) r/w 3(2)(b)(ii) of the Limitation Act; a time-barred Counterclaim&nbsp; cannot&nbsp; be made even if there is no ‘delay &amp; latches’ in moving the application for amendment of pleadings; to put it shortly, time-barred claims cannot be the subject matter of&nbsp; pleadings or their amendments; a careful perusal of the Written Statement and the subject amendment application filed by the respondent, leaves no&nbsp; manner&nbsp; of&nbsp; doubt&nbsp; that the Counterclaim in&nbsp; question&nbsp; is&nbsp; hopelessly&nbsp; time-barred and a right not to be Counterclaimed has accrued to the petitioner-plaintiff.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The respondent’s contention that he has already laid the foundation for the filing of Counterclaim in the original Written Statement itself, pales into insignificance since what the law of limitation&nbsp; bars&nbsp; is&nbsp; the&nbsp; remedy and&nbsp; not the grounds on which it is founded; in&nbsp; other&nbsp; words, even if the respondent had taken up all the grounds in his Written Statement as filed originally, a prayer for counter decree cannot be belatedly superadded once the same becomes time-barred.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">In the above circumstances, this Writ Petition is entitled to succeed and accordingly it does; a Writ of Certiorari issues quashing the impugned order; the subject application of the respondent seeking leave to amend the Written Statement for introducing the Counterclaim is dismissed.</span></div></h4><h4><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4>', '05bacaab40def60d31ec50e734069ddb.jpg', 'f406e27e490e16508d6990e09e4ef7e0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-19', 1, '', '', '2021-01-20 06:00:38', '2021-01-20 16:37:21'),
(452, 'NIzbgetdJ54bLLBxjVn1WDSm5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Even a blank cheque leaf voluntarily signed and handed over by the accused towards some payment would attract presumption under Section 139 of the Negotiable Instruments Act. Supreme Court. ', '<h4>M/s. Kalamani Tex & Anr vs P. Balasubramanian. </h4><h4>Criminal Appeal 123/2021 decided on 10 February 2021.</h4><h4> Justice N.V. Ramana, Justice Surya Kant and Justice Aniruddha Bose </h4><h4><span style=\"font-size: calc(1.275rem + 0.3vw); font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">14. Adverting to the case in hand, we find on a plain reading of its judgment that the trial Court completely overlooked the provisions and   failed   to   appreciate   the   statutory   presumption   drawn   under Section 118 and Section 139 of NIA. The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these ‘reverse onus’ clauses become operative. In  such a situation, the obligation shifts upon the accused to discharge the   presumption imposed   upon   him.   This   point   of   law   has   been crystalized by this Court in  R</span><i style=\"font-size: calc(1.275rem + 0.3vw); font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">ohitbhai  Jivanlal  Patel   v.   State   of Gujarat (2019) 18 SCC 106,</i><span style=\"font-size: calc(1.275rem + 0.3vw); font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"> in the following words:</span><br></h4><h4><i>“In   the   case  at   hand,   even   after   purportedly   drawing   the presumption under Section 139 of the NI Act, the trial court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who   allegedly   extended   him   money   for   advancing   it   to   the accused. This approach of the trial court had been at variance with   the   principles   of   presumption   in   law.   After   such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts   and circumstances   as   to   show   the   preponderance   of probabilities   tilting   in   his   favour,   any   doubt   on   the complainant\'s  case   could  not  have   been   raised  for  want  of evidence regarding the source of funds for advancing loan to<br>the appellant­ accused…..”</i><br></h4><h4>15. Once  the 2nd  Appellant had  admitted his signatures on the cheque and the Deed, the trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The trial   Court   fell   in   error   when   it   called   upon   the Complainant Respondent to explain the circumstances under which the appellants were liable to pay. Such approach of the trial Court was directly in the teeth   of   the   established   legal   position   as   discussed   above,   and<br>amounts to a patent error of law. <br></h4><h4>18. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite <i>Bir Singh v. Mukesh Kumar (2019) 4 SCC 197</i>, where this court held that:<br><i>“Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the<br>cheque was not issued in discharge of a debt.”</i><br></h4><h4><br><br></h4>', '085ac5b28b836929fc59e98192c6021c.jpeg', 'a9a405fa3bb1f14d7ad4e7de4b0e921a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-23', 1, '', '', '2021-02-12 00:23:05', '2023-01-23 10:24:33'),
(969, 'GcBkmH8puBlhcKAv8ySwDKD93', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Employees of education institutions can NOT approach Labour Court against termination, dismissal etc in view of Appeal provision under Section 94 of the Karnataka Education Act. Karnataka High Court.', '<p><b>James Kumar A vs The Secretary Bodhinikethan Trust</b></p><p><b>Writ Petition 23569 of 2018 decided on 10 August 2021</b></p><p><b>2. ...petitioner is an employee of the respondent institution. His services were terminated. He ha a remedy under the Karnataka Education Act, 1983 particularly, Section 94 relating to appeals. On the other hand, petitioner has resorted to raise an Industrial Disputed as he is a workman. Therefore, award of the labour Cour is in order in terms of the provisions of the Act, 1983 read with the fact that petitioner was an employee of respondent Education Institution.&nbsp;</b></p><p><br></p>', '4076d64708f072bd07097e380efdf285.jpg', 'db81169146cab254dc93b960d8e55c39.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-10', 1, '', '', '2021-08-23 18:52:28', '2021-08-23 18:52:28'),
(361, '7ehqmwsR47O6X2aOCH5zphWj2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'It is high time strict norms are laid down to regulate method of law reporting. Karnataka High Court.', '<h4><span style=\"font-size: 0.875rem;\"><b>M/s. JSW Steel Limited vs Mysore Minerals Limited. Writ Petition 15190/2020 decided on 13 January 2021.</b></span><br><br><b>Judgment Link: </b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/359218/1/WP15190-20-13-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/359218/1/WP15190-20-13-01-2021.pdf</a><br><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Note:</b><span style=\"font-size: 1.3125rem;\"> The kind of law reporting by few agencies in the recent past has reached the level of sensationalism. Headings are crafted in such a way as to receive sharp reactions on the social network. Few judges are targeted for their judgments. In the guise of Articles by legal experts and retired judges, a particular ideology is being propagated. These agencies are sponsored by groups having direct political nexus. The photos accompanying article are sometimes obnoxious. Recently a politician with criminal conviction and another one with charge sheet in criminal cases are shown along with Supreme Court Judges. Law reporting is reduced to the level of TRP gaining television channels. The Karnataka High Court has recently dealt with the related issue regarding flawed reporting as follows in the above named judgment.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“Flawed method of law-reporting and its inherent dangers: It is high time that some&nbsp; strict norms are laid down&nbsp; for regulating the mode and method of law reporting; there are several agencies in the country which have their own uncertain and varying ways of reporting the judgments of constitutional courts; the pattern of law report does not match with that of the original judgment on record; the paragraphs in the reported judgments at times do&nbsp; not&nbsp; match with the paragraphs in the original; not rarely, even paraphrasing of some parts of original judgments&nbsp; by&nbsp; the law reporting agency, is also noticed when rulings are cited by the lawyers; all this puts both Bar and the&nbsp; Bench&nbsp; to&nbsp; some avoidable difficulty in ascertaining the law laid down and its scope; there is a lurking risk of the editorial notes that are interjected in the body of judgments reported, being inadvertently construed as part of the ratio;&nbsp; this&nbsp; is not a happy thing to happen; much deliberation in this regard is not needed.“</span></div></h4>', 'b741fab88385b8202922e9db9a690979.png', '0a18d4dd73c4bfff1bc84e6c3cd1261c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-20', 1, '', '', '2021-01-21 05:26:29', '2021-01-21 17:13:48');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(362, 'B3CxS7uPH6TGpgkF66GSB57ra', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bar of limitations vs delay and latches explained by Karnataka High Court.', '<h4><span style=\"font-size: 0.875rem;\"><b>M/s. JSW Steel Limited vs Mysore Minerals Limited. Writ Petition 15190/2020 decided on 13 January 2021.</b></span><br><br><b>Judgment Link: </b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/359218/1/WP15190-20-13-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/359218/1/WP15190-20-13-01-2021.pdf</a><br><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">HELD: </b><span style=\"font-size: 1.3125rem;\">The concept of “bar of limitation” on the one hand and the idea of “delay &amp; latches” on&nbsp; the&nbsp; other&nbsp; by&nbsp; their very nature, are different from each other, although their successful invocation may arguably serve the same purpose in a litigation; the former absolutely bars the recourse to remedy; and the later may deny the remedy in the proceedings in question, the right to remedy being kept open for pursuit in other proceedings; prescription&nbsp; of period of limitation for claiming legal remedies is normally the prerogative of the legislature, whereas, the ground of ‘delay &amp; latches’ is a matter of discretion inhering the Courts; this discretion needs to be exercised in accordance with the rules of reason &amp; justice, is beside the point; the right to remedy ordinarily commits legal suicide if the limitation period prescribed therefor lapses; no court/authority has discretion to entertain&nbsp; the&nbsp; claim&nbsp; for&nbsp; it’s grant; Sec.3(1) of the Limitation Act, 1963 dictates their rejection at the threshold, regardless&nbsp; of&nbsp; the&nbsp; contention from the other side.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The delayed making of a Counterclaim&nbsp; by way&nbsp; of amendment of Written Statement is one thing and the making of a time barred Counterclaim by way of such amendments, is another; in treating the former, the court has discretion in the sense that it&nbsp; may&nbsp; grant&nbsp; leave&nbsp; to amend the Written Statement or refuse; in other words, a Written Statement can be amended even belatedly, for introducing a Counterclaim therein with the leave of court, provided that leave to amend is sought for within the statutory period of limitation; for that purpose, a Counterclaim shall be treated to be a suit by fiction of law; however, leave may be denied inter alia on the ground of ‘delay &amp; latches’, even if the period of limitation has not expired; in such event, defendant may bring&nbsp; a&nbsp; separate&nbsp; suit; this is one scenario.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The other scenario is: where a time barred Counterclaim is sought to be introduced by amendment to the Written Statement;&nbsp; in such&nbsp; a case,&nbsp; no&nbsp; leave can ever&nbsp; be granted; Court has no discretion to entertain such a claim; in such matters, there is no discretion to disobey the mandate of law, namely, Sec.3(1) r/w 3(2)(b)(ii) of the Limitation Act; a time-barred Counterclaim&nbsp; cannot&nbsp; be made even if there is no ‘delay &amp; latches’ in moving the application for amendment of pleadings; to put it shortly, time-barred claims cannot be the subject matter of&nbsp; pleadings or their amendments.</span></div></h4>', '729e298ab37d127f44746158952e8f06.png', '444025d1addcfb83fdf5c227454ef696.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-20', 1, '', '', '2021-01-21 05:28:35', '2021-01-21 17:12:06'),
(363, 'cj7OKu6i3a2K7KVsgeNfRfYqj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Companies Act 2013. Except the Registrar Shareholder and Official Liquidator no other person can initiate any criminal proceedings against a company for the offences under the Act. Karnataka High Court. ', '<h4><span style=\"font-size: 0.875rem;\"><b>Azim Hasham Premji and others vs India Awake For Transparency. </b></span></h4><h4><span style=\"font-size: 0.875rem;\"><b>Writ Petition 10140/2020 decided on 18 January 2021. </b></span></h4><h4><b><span style=\"font-size: 0.875rem;\">Justice Suraj Govindaraj</span><br><br></b><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">Question:</span><span style=\"font-size: 1.3125rem;\"> Whether any person can file a proceeding against the directors of a company and/or the company under Section 439(2) of the Act of 2013 ?</span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>14.5 The requirement of prior sanction under the Prevention of Corruption Act is to protect an officer against unnecessary prosecution during the time that he was discharging his function as an officer of the State, in such situation it is mandated that prior sanction from the concerned authority has to be obtained which authority would apply its mind to the facts and come to a conclusion as to whether the proceedings are to be initiated or not.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>14.6 The same in my opinion cannot be equated to authorised person under Section 439. There is a specific prohibition to the Court to take cognizance except upon a complaint in writing by the registrar, a shareholder of the company or a person authorised by the Central Government in that behalf.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>14.7 Admittedly, the respondent is neither the Registrar nor a shareholder nor has he obtained any authorisation from the Central Government. Therefore, the respondent would not in my considered opinion have any locus to initiate penal proceedings under Section 439 of the Act of 2013 or even if he initiates any action, the court dealing with such a matter cannot take cognizance of such a complaint.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>14.8 I Answer Point No.2 by holding that Act of 2013 being a Special enactment containing a specific embargo, the embargo is required to be given complete effect to by this Court. This Court cannot travel beyond the intention of the legislature and water down the requirements of Section 439. In view thereof, I am of the considered opinion that the finding of the Special Economic Court in its order dated 3.7.2017 was proper and correct. Section 19 of the Prevention of Corruption Act and Section 439 of Act of 2013 are not pari materia with each other.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>15.1 In view of the above finding in respect of point No.2, it is but required that to initiate proceeding under Section 439(2) and/or if before the Court taking cognizance such matter arises than the court can take cognisance only on a complaint in writing by the Registrar or shareholder of the company or a person authorised by the Central Government in that behalf.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">15.2 I answer Point No. 3 by holding that apart from the named persons a complaint can also be filed by a person authorised by Securities and Exchange Board of India in terms of the proviso (1) of Section 439(2) or the Official Liquidator in terms of Section 439(4), no other person can initiate any criminal proceeding against </span></b><b style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif); text-align: left;\">company for the offence committed under\r\nthe Act of 2013.&nbsp;</b></div></h4><p style=\"text-align: justify;\"><b><br></b></p><p style=\"text-align: justify;\"><b>Petitions are allowed.&nbsp;</b><br></p>', 'ba5441d9047ebb998a31aa2f04b0b673.JPG', '5bb7ae8dae02c0ef277bdbecc7466ef3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-24', 1, '', '', '2021-01-21 05:31:12', '2023-01-24 15:41:38'),
(364, 'xImxeBCC6g9zcpkRjAnYyxUvf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal trial. Lack of infrastructure in Forensic Science Laboratories and delay in submitting report is shocking and violative of Article 21 of the Constitution. Karnataka High Court issues directions to bring immediate reforms.', '<h4><span style=\"font-size: 0.875rem;\"><b>Naveen Kumar vs State of Karnataka and another. Criminal Petition 7019/2020 decided on 22 December 2020.</b></span><br><br><b>Judgment Link: </b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357230/1/CRLP7019-20-22-12-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357230/1/CRLP7019-20-22-12-2020.pdf</a><br><br><b>Relevant paragraphs.: </b><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">8. It is stated that it is due to the large number of samples which are received, there being limited resources available for the Forensic Science Laboratory, that there is a delay in submitting the examination reports and the same is not intentional and therefore, Smt. Namitha Mahesh, learned HCGP would submit that the Forensic Science Laboratory has acted in the best possible manner with the limited resources, there are no errant officials as such no action is required to be taken, she further submits that all officers of FSL are working overtime to submit their reports.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">9. It is further stated that the organisational set up of Forensic Science Laboratory in the State is that&nbsp; there is an apex State Forensic Science Laboratory (SFSL) located in Bengaluru where 13 different Sections are functioning.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">10. The State has also established five Regional&nbsp; Forensic Science Laboratory (RFSL) in five Police Range headquarters viz Mysuru, Mangaluru, Davanagere, Belagavi and Kalaburgi, however, out&nbsp; of 13 Sections a maximum of only two sections are functioning in as such, all the samples as regards&nbsp; the remaining 11 other Sections are required to be sent to the SFSL for examination.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">12. Apart from the above, it is stated&nbsp; that the officers&nbsp; of&nbsp; &nbsp; &nbsp; &nbsp; the&nbsp; &nbsp; &nbsp; &nbsp; Forensic&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; Science&nbsp; &nbsp; laboratories&nbsp; &nbsp; &nbsp;are&nbsp; &nbsp; also required to travel to courts to depose&nbsp; as&nbsp; regards the reports authored by him or her.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">13. There are 6994 cases which are pending&nbsp; trial, on account of the reports from the FSL not having been received. There are more than 35738 samples pending examination. The shocking and unacceptable aspect is the time taken for submission of reports – a Norcotic matter takes 1 year, Computer/mobile/audio-video forensics takes about 1 and half year, a DNA test takes 1&nbsp; and haf years, these being average time, as can be seen from the present case itself, it has taken 4 years for the report to be submitted. If the accused is in custody, the delay would result in a large number of undertrials being kept in jail during the pendency of the above report. On account of the delay in receipt of the aforesaid scientific reports, there is a&nbsp; high social cost. If the report is received belatedly and the same does not support the case of the prosecution, many a time it could result in innocent persons being incarcerated. The other side of the coin is that the victim or victim’s family also suffers on account of such delay, not knowing what will&nbsp; happen and when. Each accused has a right of speedy trial. The victim or the victim’s family also has a right to a speedy trial. An Accused has a right to an&nbsp; expeditious trial, more so when he/she is in judicial custody. The said custody cannot be&nbsp; extended merely on the ground that the FSL is unable to furnish the reports in time&nbsp; and/or the number of FSL are lesser&nbsp; than that required. Such a delay infringes on the right to life of an accused under Article 21 of the constitution of India. Delay by the FSL in providing a report whatever the reason may be is resulting in a situation which cannot be countenanced under law. In the case of an accused on bail, he/she continues to evade prosecution due to the delay in receipt of these reports. The effect of the delay in furnishing the reports not only delays the trial in a matter,&nbsp; it is also possible that due to the said delay the sample may degrade or get&nbsp; contaminated, thus negating the&nbsp; very purpose of forensic examination. The details of samples being degraded or contaminated have not been provided. However, this would also be required to be looked into. It is needless to say that Forensic Evidence like DNA reports, chemical analysis reports, bioanalysis reports play a critical role in the investigation of serious crimes, like Murder, sexual assault cases, forgery etc.,. The delay in submitting forensic reports by FSL necessarily hampers the proceedings in a case. One of the biggest impediment to a speedy trial is the delay in the filing of FSL reports. Cases are adjourned&nbsp; for&nbsp; years due to non-receipt of these reports. Some cases are not even committed to the sessions court or special Court as the case may be due to non-receipt of the reports.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Guidelines are required to be issued as regards the time period in which a particular kind of sample would be examined and&nbsp; report submitted to the concerned court, as regards future samples received. A monitoring system is required to be established to monitor the passage of the sample from the time it was collected to the date of submission of the report in Court. Apart from the above, a study as regards the latest equipment available, modernisation of the Laboratories, a process of the equipment to be updated from time to time is also to be put in place. From the data provided, it is also seen that many of these scarce human&nbsp; resources spend unproductive man-days in travelling to the courts in far-flung places in Karnataka to depose in the matter. Thus bringing about one more inefficiency in the system. In the year 2018, 1135 man-days were lost, and in 2019, 1222 man-days were lost.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Even if the said officer of the FSl is required to appear and depose in a particular manner, it will also be advisable to permit the said evidence to be led through video conference facilitating. It is immediately required to connect the FSL’s with the Courts in&nbsp; a&nbsp; similar manner as the jails are connected to the Court. This would save a large number of man-days lost on account of such unnecessary travel by the FSL officers. The trial Courts to permit the examination and or cross-examination of the FSL officers through video conferencing. The trial Court has to maintain a strict vigil&nbsp; on adjournments being granted for the production of FSL reports, the trial Court ought to insist on the reports being&nbsp; submitted at the earliest.</span></div></h4><h4><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4>', 'a19457d6efcf0e6b53b10dbfeb9ec013.jpg', '0915da451897ff16a161f31dd6c54726.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-20', 1, '', '', '2021-01-21 05:33:22', '2021-01-21 17:07:03'),
(367, 'TkXgDjb1a8xVDskG54V4lXkPg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Section 173 2. Magistrate cannot take cognizance of the final report submitted by Central Crime Branch since CCB is not a police station. Karnataka High Court.', '<h4><span style=\"font-size: 0.875rem;\"><b>Dr. M.G. Gopal vs State by Central Police (CCB). Criminal Revision Petition 34/2018 and connected matter decided on 18 January 2021.</b></span><br><br><b>Judgement Link: </b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/359830/1/CRLRP34-18-18-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/359830/1/CRLRP34-18-18-01-2021.pdf</a><br><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Held:&nbsp;</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">14. What constitutes a police station has been defined in Section 2(s) of the Code, which reads as under:- “2(2): “police station” means any post or place declared generally or specially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">15. As per Section 2(o) of the Code, “officer in charge of a police station” includes, when the officer in charge of the police station is absent from the station- house or unable from illness or other cause to perform&nbsp; &nbsp;his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank&nbsp; of constable or, when the State Government so directs, any other police officer so present.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">16. On going through the scheme of the Code, Section 173(2) of the Code contemplates submission of report of investigation. From plain reading of the said provision it is evident that it is the officer in-charge of a police station who is authorized to forward and submit the report in the prescribed form to the jurisdictional Magistrate to take cognizance. The words&nbsp; used&nbsp; in&nbsp; Section 173(2) are “shall forward” which themselves give the meaning that it is the officer in-charge of the police station to file the final report. Though it is contended by the learned SPP-I that under Section 36 of the Code, the superior officer of the police station may exercise the same powers, as&nbsp; could be seen from the said Section, it&nbsp; is the police officers superior in rank to an officer-in- charge of the police station have been conferred&nbsp; with such power as that of the officer in-charge of the police station. But in the case on hand, CCB police are not the officers superior in rank to an officer in-charge of the police station in the local jurisdiction. In that light, the contention which has been taken up by the learned SPP-I is not acceptable. It is even not much denied that the&nbsp; CCB is not a police station by itself.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">17. When CCB is not a police station then admittedly the final report filed by CCB which is an Investigating Agency is not in contemplation with the provisions of Section 173(2) of the Code.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">18..…As per Section 2(s) of the Code the State Government has&nbsp; &nbsp;to declare either generally or specially any post or place&nbsp; to be a police station, but no such declaration is forthcoming before this Court. In that light, admittedly&nbsp; the investigation has been done by the CCB and it is he who had submitted the report in terms of Section 173 of the Code and in view of the discussion made by&nbsp; me above, he cannot be considered to be an officer-in- charge. In that light, the trial Court ought not to have taken cognizance on the report submitted by the CCB.</span></div></h4><h4><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4>', '0c7c7feeac8bcc2722c5203c9cbabc32.jpg', '43eadd0eb15f250b13c45674972a6b22.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-21', 1, '', '', '2021-01-22 06:08:21', '2021-01-22 16:48:14'),
(368, 'pASXMCU06pR0oJnHr13asH6Bo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Public policy. Unconditional withdrawal of public interest litigation acts as a bar to file fresh writ petition seeking same reliefs. Karnataka High Court.', '<h4><span style=\"font-size: 0.875rem;\"><b>India Awake for Transparency vs The Director Directorate of Enforcement and others. Writ Petition 12073/2020 decided on 21 January 2021.</b></span><br><br><b>Judgment Link: </b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/359840/1/WP12073-20-21-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/359840/1/WP12073-20-21-01-2021.pdf</a><br><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Relevant paragraphs:&nbsp;</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">3. In this writ petition, petitioner has inter alia prayed for a direction against Director of Enforcement to register a case of money laundering arising out of scheduled offences set out in Special Case No.69/2020 on the file of learned XXIII Additional City Civil and Sessions Judge, Bengaluru based on the information given by petitioner in its representation dated January 31, 2020.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">4. Shri. Nagesh, learned Senior Advocate made following submissions. Petitioner has unconditionally withdrawn the PIL. Therefore, this petition is not maintainable on&nbsp; the&nbsp; ground of public policy.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">13. In the PIL, Director of Enforcement was arrayed as respondent No.7. As recorded hereinabove, petitioner had sought for a direction against respondents No. 1 to 10 therein to constitute a multi-Disciplinary Team to investigate and prosecute Mr. Azim Premji and his associates. Prayer clause (i) in this writ petition is for a direction against&nbsp; the Enforcement Directorate to register a case for offences of money laundering arising out of the scheduled offences in Special Case No.69/2020. The trial of the said case has been stayed by the Hon’ble Supreme Court of India.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">16. This Court, after considering the rival contentions and the authorities in Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P.Gwalior and&nbsp; others (1987)1 SCC 5 and Sheonandan Paswan Vs. State of Bihar and&nbsp; others (1987)1 SCC 288 in W.P. No.13838/2020 filed by the petitioner herein, has held that the said writ petition was not maintainable on the ground of public policy.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">17 &amp; 18. The ratio in the case of Sarguja is fully applicable&nbsp; &nbsp;to the facts of this case also. In view of the above, the preliminary objection raised by learned Senior Advocates for private&nbsp; respondents that this writ petition is not maintainable on the ground of public policy is sustained. Resultantly, writ petition stands dismissed.</span></div></h4><h4><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4><p><br></p>', 'b3bb187d25ba7e51a3e5531964eeb3ba.jpg', '11c8e806fbfffaddd57cb9dfc3c7fb83.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-21', 1, '', '', '2021-01-22 06:10:06', '2021-01-22 16:46:45'),
(369, 'WhoEZpiOruaVKjJBEUd4TrSNd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'High Court of Karnataka to bring out book entitled History of Courts of Karnataka. Makes general appeal for information.', '<h4><span style=\"font-size: 0.875rem;\">The High Court of Karnataka has constituted a constituted a&nbsp;</span><span style=\"font-size: 0.875rem;\">Committee chaired by Hon’ble Smt. Justice B.V. Nagarathna to bring out a book entitled “History of Courts of Karnataka”.</span><br>The High Court has made general appeal to persons with knowledge in this behalf and tapping all sources of information. The High Court has requested such persons to share any information as regards the legal, legislative and judicial history of Karnataka; in other words, any information on and relevant to the history of Courts in Karnataka.</h4>', '446ec393408dab5a13cba0758aff6abe.jpg', '7b1bda78ba68aee87eb8a5e0871059c7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-22', 1, '', '', '2021-01-23 05:11:45', '2021-01-23 05:11:45'),
(370, 'QKagc6V980HTnl7xEfM4HiMgi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Claim to property based on adverse possession. Period starts from the time of giving up the claim based on title. Plea of title and adverse possession are mutually inconsistent. Karnataka High Court.', '<h4><span style=\"font-size: 0.875rem;\"><b>Noor Aftab Parveen and others vs H.N. Chandrashekar by lrs. </b></span></h4><h4><span style=\"font-size: 0.875rem;\"><b>Regular Second Appeal 864/2015 decided on 15 January 2021. </b></span></h4><h4><b><span style=\"font-size: 0.875rem;\">J</span><span style=\"font-size: 0.875rem; font-family: var(--bs-font-sans-serif);\">ustice S. Sunil Dutt Yadav</span></b></h4><h4><b><br></b><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>23: The claim of adverse possession requires fulfillment of the three criteria concurrently which are:- (a) nec vi – adverse in continuity (b) nec clam – adverse in publicity (c) nec precario – adverse to a competitor in denial of title and to his knowledge.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>The claim of adverse possession cannot run concurrently with acceptance of title. The judgment of Apex Court in the case of Karnataka Board of Wakf v. Government of India and Others (2004) 10 SCC 779 as regards this aspect further sheds light and the following extract need be noticed.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>“12. A plaintiff filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See S.M.Karim v. Bibi Sakina [AIR 1964 SC 1254].) In P. Periasami v. P. Periathambi [(1995) 6 SCC 523] this Court ruled that: (SCC p.527, para 5) “Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.” The pleas on title and adverse possession are mutually inconsistent and the latter does not&nbsp; begin to operate until the former is renounced.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Another aspect that needs to be noticed is that mere possession without the requisite animus would not turn possession into possession which is adverse. In fact, as regards to the construing of “intention to dispossess” in the case of Powell&nbsp; v.&nbsp; McFarlane&nbsp; and&nbsp; Another 1979 (38) P. &amp; C.R. 452, it was observed as follows:-</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>“(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (“animus possidendi”)</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>“…..If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>The right of the plaintiff to sue for possession would remain till the defendant acquires positive title by adverse possession so as to extinguish the plaintiff’s right, which alone would result in extinguishment of plaintiff’s right under Section 27 of the Limitation Act.</b></span></div></h4>', 'f30c621d961e8bd2627dcc83b0c5b980.JPG', 'ae0d0bd31423710d30a2eca04306b7f6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-25', 1, '', '', '2021-01-23 05:14:47', '2023-01-25 15:31:30'),
(371, 'dyxdMxyXq2IXm1FiuNVOmocJu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Principle that person who participates in the selection process cannot challenge the procedure for selection is not absolute. Estoppel and acquiescence would not apply in case of glaring illegalities in the selection. Karnataka High Court.', '<h4><span style=\"font-size: 0.875rem; background-color: rgb(255, 255, 0);\"><b>NOTE: This judgment is affirmed by the Division Bench</b></span></h4><h4><span style=\"font-size: 0.875rem;\"><b>Dr. Raghavendra H.K. vs The State of Karnataka and others. Writ Petition 4923/2020 decided on 16 January 2021.</b></span><br><b><br>Judgment Link: </b><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/360403/1/WP4923-20-16-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/360403/1/WP4923-20-16-01-2021.pdf</a><br><br><b>Relevant paragraphs: </b><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">17. Insofar as the contention of the respondents that the petitioner is estopped from challenging the selection process after having participated on the ground of acquiescence is concerned, the said principle is not a panacea to all the ills and illegalities committed by the Selecting Authorities. It is noticed that the Selecting Authorities time and again commit glaring illegalities in selections contrary to the statute, appoint candidates contrary to law and try to take shelter under the plea of estoppel against the candidates who challenge the act of the Selecting Authorities and consequent appointments, on a specious plea that the candidate cannot turn around and challenge the selection process or procedure stipulated for selection, after having participated in the selection process. The same plea is advanced in unison by the respondent – University and the selected candidate. The plea of the said respondents is unacceptable to me.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">18. The University has made selections blatantly contrary to Rule 6 of the Special Rules which has resulted in the appointment of respondent No.7 to the post of Assistant Professor in the Department of English and denial of the entitlement of the petitioner to be considered for such appointment. The petitioner has not questioned the notification, process of selection or procedure adopted, but has questioned the selection of respondent No.7 as contrary to law. Such a challenge can be made only after the outcome of the selection process for which the candidate should partake in the said selection process. This view of mine, in this regard, is fortified by judgments of the Apex Court in the case of Raj Kumar vs shakri raj reported in (1997) 9 SCC 527.….But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955&nbsp; Rules,&nbsp; so&nbsp; also&nbsp; in&nbsp; the&nbsp; method&nbsp; of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">19. The Apex Court in the latest judgment, in the case of Dr.(Major) Meeta Sahai Vs. Union of India reported in (2019) 20 SCC 17, considering the entire case law in point has held as follows:,,,,,,However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">If the facts obtaining in the case at hand is considered in the light of law laid down by the Apex Court in the afore-extracted judgment, the petition cannot be shown the doors of the Court for an exit, merely because the petitioner has participated in the selection process as it is only the outcome of selection that has brought out the illegality committed by the University in selecting respondent No.7 contrary to the Special Rules.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">21. Thus, in terms of the afore-extracted judgment of the Apex Court considering all the judgments on the issue of estoppel, acquiescence and waiver as in the case of Dr.(Major) Meeta Sahai (supra) held that illegality in a selection process can be found by a candidate only on its participation and not otherwise.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Writ Petition allowed.</span></div></h4><h4><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4>', 'c660e557e23b6a3ad58afe46b244b062.jpg', '51b45dce397d8e620a355ec667e835ec.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-23', 1, '', '', '2021-01-24 05:32:55', '2021-03-12 23:12:11'),
(372, 'ODx1dnkzekmhV5auSzkGh8HLd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Destruction of the environment is Ecocide. Person stacking iron ore in open space causing Air and Water pollution is liable for prosecution. Karnataka High Court', '<h4><span style=\"font-size: 0.875rem;\">NOTE: The Karnataka High Court applies the principle of “Ecocide” in a case involving Air and Water pollution by trader who stacked iron ore in open place causing Air and Water pollution. Ecocide is criminalized human activity that violates the principles of environmental justice, as by substantially damaging or destroying ecosystems or by harming the health and well-being of a species. Though Ecocide has not yet been accepted as an internationally punishable crime by the United Nations, the municipal laws worldwide have made destruction of the environment, fauna and flora as punishable offences. In India, the Water (Prevention and Control of Pollution) Act- 1974 and the Air (Prevention and Control of Pollution) Act- 1981 have occupied the filed.</span><br><br><b>M/s. Dream Logistics Company vs Karnataka State Pollution Control Board. Criminal Petition 101728/2017 decided on 6 November 2020.</b><br><br><b>Judgment Link: </b><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348072/1/CRLP101728-17-06-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348072/1/CRLP101728-17-06-11-2020.pdf</a><br><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant paragraphs:&nbsp;</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">10.11 In the present case, the Petitioner is stated to have dumped iron ore in the area allocated to it in an open space. Iron ore as a term would indicate is the mineral iron ore contained in soil, which needs to be extracted therefrom. Thus, in a sense what is dumped in port area is soil containing iron ore. Once the soil dries up, there is a great possibility of dry soil being blown away by the air spreading the dry soil along with iron ore in and around the area of port. If not&nbsp; for the Petitioner having used the area for dumping of the iron ore, no pollution could have occurred. Whether it occurred or not&nbsp; is a subject matter of trial? However, the allegation as regards occurrence of the air pollution on the basis of the iron ore being dumped by the Petitioner in the allocated area is something which requires investigation and if found to be true and correct, the same would require the Petitioner to stand trial.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">10.15 The fact that the allocated area is a port area, there are villages around the area also ocean beside the area would also be of considerable importance. Since apart from dry iron ore being blown away by the wind, in the event of rains occurring, the water which mixes with the said iron ore could seep into the ground, polluting the groundwater and mixing with the ocean nearby, which would cause environmental damages to the habitat as also adversely affecting the fishes and other living creatures in the ocean. If there is large scale pollution of this kind, it could also result in an ecological disaster causing untold harm and misery to human beings and the environment, even resulting in large scale death of aquatic life.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">10.16 Encyclopedia Britannica defines Genocide as “the deliberate and systematic destruction of&nbsp; &nbsp;a&nbsp; &nbsp;group&nbsp; &nbsp;of&nbsp; &nbsp;people&nbsp; &nbsp;because&nbsp; &nbsp;of their ethnicity, nationality, religion, or race. The&nbsp; &nbsp; &nbsp;term,&nbsp; &nbsp; &nbsp;derived&nbsp; &nbsp; &nbsp;from&nbsp; &nbsp; &nbsp;the Greek genos (“race,” “tribe,” or “nation”) and the Latin cide (“killing”),&nbsp; was&nbsp; coined by Raphael Lemkin, a Polish-born jurist who served as an adviser to the U.S. Department of War during World War II.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">10.17 The United Nations Office on Genocide prevention gives the background of Genocide asunder: The word “genocide” was first coined by Polish lawyer Raphäel Lemkin in 1944 in his book Axis Rule in Occupied Europe. It consists of the Greek prefix genos, meaning race or tribe, and the Latin suffix cide, meaning killing. Lemkin developed the term partly in response to the Nazi policies of systematic murder of Jewish people during the Holocaust, but also in response to previous instances in history of targeted actions aimed at the destruction of particular groups of people. Later on, Raphäel Lemkin led the campaign to have Genocide recognised and codified as an international crime.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">10.18 In my opinion, the large scale destruction of environment and habitat of animals is no less than the offence of Genocide, since it is the destruction of the environment, the offence would qualify to be “Ecocide”, which would amount to causing the death and destruction of the environment and other living creatures. It is time that this aspect is recognised and due action thereon taken in our country, like that taken in other countries.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">10.19 Dictionary.com defines ecocide as: “the destruction of large areas of the natural environment by such activity as nuclear warfare, overexploitation of resources, or dumping of harmful chemicals.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">10.20 Merrium Webster defines ecocide as: “the destruction of large areas of the natural environment as a consequence of human activity”.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">10.21 It is now absolutely required for the preservation of human life as we now know it, to preserve the environment and nature. It is only by preservation of the environment and nature that mankind can be preserved. There is an absolute and imperative need for all to adopt sustainable living and development. Man must not only sustain himself but also sustain nature, which sustains him.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">10.22 In view thereof, the Pollution Control Authorities are required to be ever vigilant to avoid, if possible, the occurrence, if not, when it occurs to stop such pollution, by taking necessary steps immediately. Thereafter to initiate necessary action by following due procedure of law to punish the guilty so that the same has a deterrent effect as against future violators. The principle of “Polluter Pays” would also be applicable to take restorative action for such pollution or environmental destruction caused.</span></div></h4><h4><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4>', 'ef5aed2da5a75f24a5fe773d04db922a.jpg', '2050b76b169037db72c85ac16aec3523.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-24', 1, '', '', '2021-01-25 05:33:56', '2021-01-26 04:22:05'),
(373, '2or866CuPmYOwDHgKV3HGD0jE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Labour dispute. Dismissal of a workman cannot be interfered with merely on the ground that no disciplinary enquiry was held if the employer could justify the action before the Labour Court. Supreme Court.', '<h4><span style=\"font-size: 0.875rem;\"><b>State of Uttarakhand and others. vs Sureshwati. Civil Appeal 142/201 decided on 20 January 2021.</b></span><br><br><b>Judgment Link: </b><a href=\"https://main.sci.gov.in/supremecourt/2020/13459/13459_2020_38_1501_25605_Judgement_20-Jan-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/13459/13459_2020_38_1501_25605_Judgement_20-Jan-2021.pdf</a><br><b><br>Relevant paragraphs: </b><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">14.This Court has in a catena of decisions held that where an employer has failed to make an enquiry before dismissal or discharge of a workman, it is open for him to justify the action before the Labour Court by leading evidence before it. The entire matter would be open before the tribunal, which would have the jurisdiction to satisfy itself on the evidence adduced by the parties whether the dismissal or discharge was justified.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">A four Judge Bench of this Court in Workmen of the Motipur Sugar Factory Private Ltd. v. Motipur Sugar Factory AIR 1965 SC 1803 held that “11. It is now well settled by a number of decisions of this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic enquiries have been held. The entire matter would be open before the tribunal which will have jurisdiction not only to go into the limited questions open to a tribunal where domestic enquiry has been property held but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Note: Apart from other judgments, the Supreme Court places heavy reliance on Workmen of Firestone Tyre &amp; Rubber Co. of India (P) Ltd. v. The Management of Firestone Tyre &amp; Rubber Co. of India (P) Ltd and Other (1973) 1 SCC 813 and quotes the following paragraphs</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v. Workmens within the judicial decision of a Labour Court or Tribunal.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">15 &amp; 19. We have perused the Award passed by the Labour Court, and find that a full opportunity was given to the parties to lead evidence, both oral and documentary, to substantiate their respective case. In view of the aforesaid discussion, we allow the present Appeal, and set aside the Judgment of the High Court. The Award dated 22.8.2016 is restored.</span></div></h4><h4><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4><p><br></p>', 'bef88e2dfb5d6df70d90af0e3e4e4ad2.png', '9e3e598d4de6332cc9775ea0a06a7a3d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '0021-01-24', 1, '', '', '2021-01-25 05:37:38', '2021-01-26 04:20:58');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(374, 'MhXV697FAOF2vYstrgGSp8tf5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Pollution Control laws. Tenant of a property or operator of industry in the air pollution control area has to obtain consent or permission from the Pollution Control Board unless there is a contract to the contrary in the lease agreement. Karnataka High C', '<h4><span style=\"font-size: 0.875rem;\"><b>M/s. Dream Logistics Company vs Karnataka State Pollution Control Board. Criminal Petition 101728/2017 decided on 6 November 2020.</b></span><br><br><b>Judgment Link: </b><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348072/1/CRLP101728-17-06-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348072/1/CRLP101728-17-06-11-2020.pdf</a><br><br><b>Relevant paragraphs: </b><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">12. Point (v). Can a tenant or a licencee of the property contend that the liability of obtaining permission from the respective Pollution Control Board would be that of the owner and the tenant/licensee has nothing to do with it?</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">12.1 to 12.6 Neither the Air Act nor the Water Act makes any distinction between the owner and/or a tenant of a industry, factory or premises. The Act only refers to and applies itself to pollution being caused. Unless there is a contract to the contrary that an owner of the premises is to obtain permissions under the relevant pollution control Act, it would be for the alleged polluter to obtain necessary permissions and/or consent under the Air Act or Water Act. Section 21 of Act also does not make a distinction between the owner and/or a tenant insofar as it states “…. No person shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control area. ….”. Thus, the allegation in the present case being that the Petitioner has caused pollution and/or the Petitioner is operating the iron ore stackyard, it was for the Petitioner to obtain the necessary permission and/or consent from the jurisdictional Pollution Control Board.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">12.7 From the reading of the above, it is seen that as per Condition No.8, the said Dream Logistics Company was required to obtain consent from KSPCB under Water Act and Air Act before the commencement of any activities as also to comply with several conditions as extracted above. Irrespective of whether the petitioner is an owner or a tenant or whether the land is owned by port authorities or otherwise, even at the time of allotment, it was made clear that it was for the petitioner to obtain consent from KSPCB. In the said background, it cannot now lie for the petitioner to contend that the consent was to be obtained by the port authorities. Be that as it may. This could also be a subject matter of trial. If at all, the port authorities are also liable, they can also be brought on record as additional accused in terms of Section 41 of the Air Act. Governmental authorities who violate Environmental Protection Act including the Air Act, Water Act could be liable for prosecution for such offences, the concerned persons who were incharge of such government department at that point of time can always be prosecuted.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">12.8 1.1.&nbsp; &nbsp;In view of the above, I answer Point No.(v) by holding that a tenant or a licensee of a property or anyone who operates any industrial plant or trade activity in the air pollution control area would have to obtain the necessary consent and/or permission from the jurisdiction Pollution Control Board unless there is a contract to the contrary between such tenant and owner of the premises or a licensee and licensor of the premises, requiring the Owner or Licensor to obtain such consent and/or permission.</span></div></h4><h4 style=\"text-align: justify;\"><br><b>Compiled by S.Basavaraj, Advocate, Daksha Legal</b></h4><p><br></p>', '8b6653b32678f4492815855da220a3b3.jpg', '759791277bf22cc57d8e81bfa01a8671.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-24', 0, '', '', '2021-01-25 05:40:18', '2021-01-26 07:29:02'),
(376, 'I3M53AZYcjnfHXx240SDyaPt8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Section 202. When the accused has office branch office or the like within the jurisdiction of the Magistrate where the offence has been committed there is no requirement of enquiry before issuance of summons. Karnataka High Court', '<h4><span style=\"font-size: 0.875rem;\"><b>M/s. Dream Logistics Company vs Karnataka State Pollution Control Board. Criminal Petition 101728/2017 decided on 6 November 2020.</b></span><br><br><b>Judgment Link: </b><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348072/1/CRLP101728-17-06-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348072/1/CRLP101728-17-06-11-2020.pdf</a><br><br><b>Relevant paragraphs: </b><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">9. Whether a Magistrate can issue summons to a person residing outside the territorial jurisdiction without conducting an enquiry under Section 202 of Cr.P.C., if so under what circumstances?</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">9.5 The procedure under Section 202 of Cr.P.C. is required to be followed only when the accused has no presence at all within the jurisdiction of the Court issuing process, which is not the case here.</span></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">HELD:</b><span style=\"font-size: 1.3125rem; font-weight: 500;\"> 9.10.1 When the accused is having an office, branch office, corporate office, sales office or the like within the jurisdiction of the Magistrate where the offence has been committed and or continues to be committed, there would be no requirement for any enquiry under Section 202 of Cr.P.C. It would, however, be required for the Magistrate to in the order of issuance of summons/process record as to why the enquiry under Section 202 of Cr.P.C is not being held.</span></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">9.10.2 In the event of accused being an individual, if the said accused has a temporary residence within the jurisdiction of the Magistrate, again merely because he does not have a permanent residence, there is no enquiry which is required to be conducted under Section 202 of Cr.P.C. It would, however, be required for the Magistrate to in the order of issuance of summons/process record as to why the enquiry under Section 202 of Cr.P.C is not being held.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">9.10.3 When the accused has no presence within the jurisdiction of the Magistrate where the offence has been committed, then it would be mandatory for an enquiry under Section 202 of the Cr.P.C to be held.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">9.10.4.&nbsp; &nbsp;In the event of accused being aggrieved by the issuance of summons, the said accused immediately on receipt of the summons&nbsp; &nbsp;and/or&nbsp; &nbsp;on appearance&nbsp; before&nbsp; the Magistrate is required to make out his grievance before the Magistrate Court and/or by petition under Section 482 Cr.P.C. If there is any delay, in such challenge and/or if challenge has not made within reasonable time, the accused would not be entitled to raise the grievance that the procedure under Section 202 of Cr.P.C. has not been followed on&nbsp; account of delay and latches.</span></div></h4><h4><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></h4>', '0b0945ee5597accdb50cdfd909f8ff52.jpg', 'd81668a42a9fcbb657eecad114ec60ec.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-24', 0, '', '', '2021-01-25 05:48:07', '2021-01-26 07:28:36'),
(377, 'PfgLY4DBdw1gDPD1a90Gs9Yoi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Election Petition. Amendment to introduce “material facts” after the expiry of limitation to file election petition not permissible. Only “amplificatory particulars” can be added. Karnataka High Court.', '<h4><b><br>Firdous Parveez Taj vs Yasmin Taj. Writ Petition 11100/2020 decided on 22 January 2021.</b><br><br><b>Judgment Link: </b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/360729/1/WP11100-20-22-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/360729/1/WP11100-20-22-01-2021.pdf</a><br><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant paragraphs:</b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">It is basic to the law of elections that in a democracy, the mandate of people as expressed at the hustings must prevail and be respected; that is why the election of a successful candidate is not readily upset for askance; a heavy onus lies on the petitioner who seeks to void the election, to&nbsp; make out a clear case, both in terms&nbsp; of pleadings &amp; proof; an election petition and a suit proceeding differ from each other in their nature &amp; scope;&nbsp; it is a settled position of law that all “material facts” must be pleaded by the party in support of the case&nbsp; set up by&nbsp; him for voiding an election; ordinarily, if some facts inadvertently or otherwise&nbsp; are not pleaded can be loaded&nbsp; to the pleadings by amendment provided that, leave therefor is sought before the expiry of the period of limitation prescribed for filing the petition; this again is subject to all just exceptions; the underlying object of this&nbsp; is to enable the victorious candidate, to know the specific case which he has to meet.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Right to amend the pleadings even after the limitation period has expired avails in the realm of election law although it’s exercise is conditioned by&nbsp; the&nbsp; factors&nbsp; such as nature &amp; substance of amendment,&nbsp; delay&nbsp; &amp; latches, the stage of proceedings &amp; the like, is not much in dispute since the provisions of CPC are made mutatis mutadis applicable to the trial of election petitions vide Sec.24 of the Karnataka Municipalities Act, 1964; where challenge is laid on the&nbsp; ground of corrupt practice, the&nbsp; right to amend the pleadings is limited to introducing “amplificatory particulars” of a corrupt practice not previously averred in the petition but does not extend to introducing the material facts, as such; by the subject amendment the respondent seeks to introduce the details&nbsp; of undisclosed properties to the petition, which are already stated in great details in the List of Documents which accompanied the original petition from the day one; even copies of documents were also filed; both the sides having understood what is what, accordingly have drawn&nbsp; the battle lines; that being the position, it cannot be gainsaid that the amendment introduces the material facts, when it only amplifies of what are there already.</span></div></h4><h4><i><br><b>Compiled by S. Basavaraj, Advocate, Daksha Legal.</b></i></h4>', '2badc93b70b134aa9a420bc8ea28015d.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-22', 1, '', '', '2021-01-26 18:56:48', '2021-01-26 22:57:00'),
(378, 'ArY99nUgv48XJJGsX2mqPXruY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Aarogya Setu App. Informed consent of users of the app is must for sharing user data by the Government of India and National Informatics Centre. Karnataka High Court.', '<h4><b>Anivar A Aravind vs Ministry of Home Affairs and others. Writ Petition 7483/2020 decided on 25 January 2021. Chief Justice Abhay S. Oka and Justice S. Vishwajith Shetty</b><br><br><b>Judgment Link: </b><br><a href=\"https://karnatakajudiciary.kar.nic.in/noticeBoard/WP-7483-2020.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/noticeBoard/WP-7483-2020.pdf</a><br><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">HELD:</b><span style=\"font-size: 1.3125rem;\"> 28. (i) We accept the assurance given by the Government of India that no individual will be denied the benefits of any services that are being provided by the Governments, its agencies and instrumentalities on the ground that he has not downloaded and installed Aarogya Setu app;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(ii) Prima facie, we hold that informed consent of the users of Aarogya Setu app is taken to what is provided in the privacy policy which is available on Aarogya Setu app itself and, therefore, there is an informed consent of the users of Aarogya Setu app which is limited only to collection and manner of collection of information, use of information and retention, as provided in the privacy policy which is available on the Aarogya Setu app. However, it is</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">made clear that the use and retention of information and data shall remain confined to what is provided in the privacy policy which is available on the Aarogya Setu app;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(iii) Prima facie, we hold that there is no informed consent of users of Aarogya Setu app taken for sharing of response data as provided in the Aarogya Setu Data Access and Knowledge Sharing Protocol, 2020, as there is no reference to the said protocol in the terms of use and Privacy Policy available on the app,</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(iv) Till further orders, we hereby restrain the Government of India and National Informatics</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Centre, the eighth and seventh respondents respectively from sharing the response data by</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">applying the provisions of the Aarogya Setu Data Access and Knowledge Sharing Protocol, 2020 issued vide order dated 11th May, 2020 (Annexure-R19) unless the informed consent of the users of Aarogya Setu app is taken;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(v) However, it will be open for the Union of India and National Informatics Centre, the eighth and seventh respondents respectively to file an affidavit for satisfying the Court that the Chairperson, Empowered Group on Technology and Data Management or the said Empowered Group is legally empowered to issue the said protocol and that the informed consent of the users of Aarogya Setu app is taken for implementation of clauses</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">regarding sharing of the data as provided in the said protocol. After filing of an affidavit and the documents as aforesaid, it will be open for the said respondents to apply for vacating the limited interim relief granted as above, in terms of clause (iii).</span></div></h4><p><br></p>', 'f6057c12d0b8d617b7b7922edb8689e4.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-25', 1, '', '', '2021-01-26 19:01:38', '2021-01-26 22:55:14'),
(379, 'qpqMQubotTPHZY1zauxVj5N5X', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. A party who files criminal complaint cannot call the counter complaint as civil in nature when both complaints involve similar allegations. Karnataka High Court. ', '<h4><b>Shantanu Rastogi vs State of Karnataka and another </b></h4><h4><b>Criminal Petition 5084/2020 decided on 21 January 2021.</b></h4><h4><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/360758/1/CRL.P-5084-2020-Judgement-21-01-2021%28sign%29.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/360758/1/CRL.P-5084-2020-Judgement-21-01-2021%28sign%29.pdf</a></b></h4><h4><b>Relevant paragraphs: 14.2 I have gone through the contents of the petitions, objections as also documents </b></h4><h4><b>filed. The documents filed give rise to a very sorry state of affairs between two companies who claim to be the leaders in their field. The documents produced would indicate the mud slinging campaign resorted to by both companies against each other. Though there are criminal complaints filed, investigation is in progress and this Court is seized of the matter, it is seen from the documents produced that while the above matter was pending before this Court both \'NoBroker\' and \'Mygate\' have involved themselves in a vicious battle in the social media like facebook, whatsapp, twitter, etc. The contents of the said posts in those social media indicates as if there is a no holds barred   battle   between   \'NoBroker\'   and \'Mygate\' in the social media each making allegations and counter allegations against the other.</b></h4><h4><b>14.5   One of the cardinal rules for a party to claim for quashing of the criminal proceedings on the ground that the allegations made therein are relating to a civil dispute is that such a person ought not to have filed a criminal complaint on the very same set of facts and/or on very similar allegations.</b></h4><h4><b>14.6 In the present case, both \'Mygate\' and \'NoBroker\' have made similar if not identical allegations against each other. According to both of them their data has been stolen by the other. Having made such a complaint against the other, it would not now lie for either of the parties to contend that the complaint filed against their clients cannot be continued since the disputes are commercial in nature.</b></h4><h4><b>14.7 I Answer Point No.1 by holding that, once a party files a criminal complaint against the other and if such other were to file a criminal complaint against the first complainant, then the first complainant cannot be heard to say that the second complaint is purely commercial and has to be quashed. When there is a complaint and counter complaint filed on the basis of similar allegation alleging criminal offences neither of the parties can be heard to say that the complaint against it is civil/commercial in nature, while the complaint filed by it is proper and correct.</b></h4><h4><b><br></b></h4><h4><b><br></b></h4><h4><br></h4><p class=\"MsoListParagraph\" style=\"margin-right:21.6pt;text-indent:-54.0pt;\r\nline-height:200%;mso-list:l0 level2 lfo1;tab-stops:133.9pt\"><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nmso-bidi-font-size:11.0pt;line-height:200%\"><o:p></o:p></span></p>', '4c98c89f67738ecda595406e5d845acb.jpg', '778db1680f1fca488b7ae8b6a9e3f948.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-21', 1, '', '', '2021-01-27 23:12:53', '2021-01-27 23:14:48'),
(380, 'rZNPhfiQ5QGVyEfKa2GeunOmf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Commercial disputes. Filing of written statement within 120 days is mandatory. Prosecuting application for rejection of plaint is not an excuse. Supreme Court', '<h4><b>M/s. SCG Contracts India Pvt Ltd vs K.S. Chammankar Infrastructure Pvt Ltd and others.&nbsp; Civil Appeal No. 1638/2019 decided on 12 February 2019. Reported in AIR 2019 SC 2691 and (2019) 12 SCC 210. Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2018/8868/8868_2018_Judgement_12-Feb-2019.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/8868/8868_2018_Judgement_12-Feb-2019.pdf</a></b></h4><h4><b>Relevant paragraphs: (8) The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 came into force on 23.10.2015 bringing in their wake certain amendments to the Code of Civil Procedure. A perusal of these provisions would show that ordinarily a written statement is to be filed within a period of 30 days. However, grace period of a further 90 days is granted which the Court may employ for reasons to be recorded in writing and payment of such costs as it deems fit to allow such written statement to come on record. What is of great importance is the fact that beyond 120 days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record. This is further buttressed by the proviso in Order VIII Rule 10 also adding that the Court has no further power to extend the time beyond this period of 120 days.&nbsp;</b></h4><h4><b>(10) Several High Court judgments on the amended Order VIII Rule 1 have now held that given the consequence of non-filing of written statement, the amended provisions of the CPC will have to be held to be mandatory. [See Oku Tech Private Limited vs. Sangeet Agarwal &amp; Ors. by a learned Single Judge of the Delhi High Court dated 11.08.2016 in CS (OS) No. 3390/2015 as followed by several other judgments including a judgment of the Delhi High Court in Maja Cosmetics vs. Oasis Commercial Pvt. Ltd. 2018 SCC Online Del 6698.&nbsp;</b></h4><h4><b>(11) We are of the view that the view taken by the Delhi High Court in these judgments is correct in view of the fact that the consequence of forfeiting a right to file the written statement; non-extension of any further time; and the fact that the Court shall not allow the written statement to be taken on record all points to the fact that the earlier law on Order VIII Rule 1 on the filing of written statement under Order VIII Rule 1 has now been set at naught.</b></h4><h4><b>(16) Clearly, the clear, definite and mandatory provisions of Order V read with Order VIII Rule 1 and 10 cannot be circumvented by recourse to the inherent power under Section 151 to do the opposite of what is stated therein.</b></h4><h4><b>(19) The appeal is allowed, with the consequence that the written statement of Defendant No.1 must be taken off the record.</b></h4><h4><b><br></b></h4><h4><b>&nbsp;</b></h4><p>\r\n</p>', 'f4d2081756a0473611b8f283d8d1b08f.png', 'dd02046394a3211838c7231410dfc19f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2019-02-12', 1, '', '', '2021-01-27 23:42:32', '2021-01-27 23:42:32'),
(381, '7sTlzX2KidKjHLINVfe3QDMBR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Income Tax Act. Section 147. Mere change of opinion on consideration of the same material is not a ground to reopen the assessment. Full Bench Karnataka High Court. ', '<h4></h4><h4><b>Dell India Private Limited vs The Joint Commissioner of Income Tax. Writ Appeal 1145/2015 (T-IT) decided on 27 January 2021.Chief Justice Abhay S. Oka, Justice R. Devdas and Justice Sachin Shankar Magadum.&nbsp;</b></h4><h4><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/360931/1/WA1145-15-27-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/360931/1/WA1145-15-27-01-2021.pdf&nbsp;</a></b></h4><h4><b>Questions referred to Full Bench:</b></h4><h4><b>1. Whether the Division Bench judgment in the case of Commissioner of Income Tax Vs Rinku Chakraborthy (2011) 242 ITR 425 lays down good law?</b></h4><h4><b>2.&nbsp; Whether the judgment in the Rinku Chakraborthy (supra) is per incurium in view of the fact that it relies upon the judgment of the Apex Court in the case of Kalyani Mavi &amp; Co. Vs Commissioner of income Tax 1976 CTR 85, which has been specifically overruled by the Apex Court in the case of Indian &amp; Eastern Newspaper Society Vs Commissioner of Income Tax (1979) 110 ITR 996?</b></h4><h4><b>3. Whether ‘reason to believe’ in the context of Section 147 of the Income Tax Act can be based on mere ‘change of opinion’ of the Assessing Officer?”</b></h4><h4><b><span style=\"background-color: rgb(255, 255, 0);\">HELD</span>: 18. As noted earlier, the decision in the case of Rinku Chakraborthy (supra) is based only on what is held in Clause (2) of paragraph 13 of the decision in the case of Kalyanji Mavji and Company (supra). The decision rendered in the case of Kalyanji Mavji and Company (supra) was by a Bench of two Hon’ble Judges. Subsequently, a larger Bench of three Hon’ble Judges in the case of M/s. Indian and Eastern Newspaper&nbsp; Society&nbsp; (supra) has clearly held that oversight, inadvertence or mistake of the Assessing Officer or error discovered by him on the reconsideration of the same material does not give him power to reopen a concluded assessment. It was expressly held that the decision in the case of Kalyanji Mavji and Company (supra), on this aspect does not lay down the correct law. The decision in the case of Rinku Chakraborthy (supra) is based solely on the decision of the Apex Court in the case of Kalyanji Mavji and Company (supra) and in particular what is held in Clause (2) of paragraph 13. The said part is held as not a good law by a subsequent decision of the Apex Court in the case of M/s. Indian and Eastern Newspaper Society (supra).</b></h4><h4><b>19.&nbsp; Therefore, in the light of law laid down in the case of M/s. Indian and Eastern Newspaper Society (supra), the&nbsp; first question will have to be answered in the negative by holding that the decision in the case of Rinku Chakraborthy does not lay&nbsp; down correct position law to the extent to which it follows what is held in clause (2) of paragraph 13 of the decision of the Apex&nbsp; Court in the case of Kalyanji Mavji and Company (supra). The second question will have to be answered in the affirmative. In view of the consistent decisions of the Apex Court holding that “reason to believe” in the context of Section 147 of the&nbsp; Income&nbsp; Tax cannot be based on mere change of opinion of the Assessing Officer, the third question will have to be answered in&nbsp; the&nbsp; negative. In fact, in view of settled law, framing of question No.3 was not warranted at all.</b></h4><h4><b><br></b></h4><h4><br></h4><p class=\"MsoListParagraph\" style=\"margin-top:9.15pt;margin-right:49.7pt;\r\nmargin-bottom:0cm;margin-left:109.1pt;margin-bottom:.0001pt;text-indent:-33.85pt;\r\nline-height:152%;mso-list:l0 level2 lfo1;tab-stops:109.15pt\"><span lang=\"EN-US\" style=\"font-size:12.0pt;\r\nmso-bidi-font-size:11.0pt;line-height:152%\"><o:p></o:p></span></p>', 'a8968cf327062f299815e94f4eb0b5c8.PNG', '980ff5fc30d9994db24e10462af57c7a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-27', 1, '', '', '2021-01-28 00:29:37', '2021-01-28 00:30:52'),
(2677, 'O5asl4ppbbQxlNU0bNHAsaYFs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Section 93. Search warrant can be issued by the Magistrate without issuing a summons under Section 91. Karnataka High Court. ', '<h4><b>Social Democratic Party of India (SDPI) vs State by CCB Police and others.</b></h4><h4><b>Writ Petition 10760/2020 decided on 12 January 2021.</b></h4><h4><b>Justice Suraj Govindaraj.<br>&nbsp;</b></h4><h4><b>13.&nbsp; Whether it is mandatory for issuance of a summons under Section 91 of Cr.P.C. before issuance of a warrant?<br></b></h4><h4><b><br>14 &amp;15. Section 91 of Cr.P.C. relating to summons to produce document or other thing. Section 93 of Cr.P.C. relating to issuance of a search warrant.<br></b></h4><h4><b><br>16. A perusal of Section 91 would indicate that whenever any Court or any Officer in charge of a police station considers that the production of any document or thing is necessary or desirable pending investigation, summons could be issued by such Court or Officer to the person in whose possession or power, such document is believed to be, requiring him to attend and produce it.&nbsp; A perusal of Section 93 of Cr.P.C. would indicate that where any Court has reason to believe that a person to whom a summons or order under Order 91 or a requisition under sub-Section (1) of Section 92 of Cr.P.C. has been or might be addressed, will not or would not produce the document or thing or where such document or thing is not known to the Court to be in the possession of any person or where the Court considers that for the purposes of any enquiry, a general search or inspection is to be carried out, a search warrant could be issued.<br></b></h4><h4><b><br>16.4 Having perused Section 93 of Cr.P.C., the reliance placed by the petitioner on Section 93(1)(a) is not sustainable. The entire provision would have to be read has a whole to arrive at the meaning and purport thereof more so when Section 93 (1)(a), (b) and (c) are qualified with the word \'or\' after each of said sub-clauses. That would mean that they are in the alternate to each other and if any of the requirements if satisfied, a search warrant could be issued.&nbsp; Section 93 of Cr.P.C. only provides for three different alternate circumstances. There is neither a priority in the circumstances nor a serial chain link in the circumstances. In that, if any one of the requirements is satisfied, the Court may issue a search warrant to search or inspect the premises.<br></b></h4><h4><b><br>16.7-16.10&nbsp; In view of the above, the reasoning of the Court and Court having appreciated the requirements and immediate need for issuance of a search warrant, I am of the considered opinion that the above matter would not come within the purview of Section 93 (1)(a) of Cr.P.C. but would come within the purview of Section 93(1)(c) of Cr.P.C. where the Court considers that for the purposes of any enquiry, trial or other proceeding be served by a general search or inspection, the court could issue such search warrants.&nbsp; It is considering the said factors that the Court has issued the search warrants. For the purposes of Section 93(1)(c) of Cr.P.C., there is no requirement of issuing summons under Section 91(1) of Cr.P.C. prior to issuance of the search warrant. Thus, I am of the considered opinion that it is not in all cases that the summons have to be issued prior to issuance of a search warrant. Even a perusal of Section 93 (1)(a) of Cr.P.C. would indicate that if the Court were to come to a conclusion that the issuance of summons under Section 93 (1) or 92 (1)&nbsp; &nbsp; &nbsp;of Cr.P.C. would not result in the production of the said document or information, a search warrant could be issued. The procedure for issuance of search warrant under Section 93 of Cr.P.C. is dehors and over and above the requirements under Section 91(1) of Cr.P.C.<br></b></h4><h4><b><br>16.11 In view of the above, I answer Point No.1 by holding that it is not required in all circumstances to issue a summons prior to issuance of a search warrant. A search warrant could be issued in terms of Section 93(1)(c) without issuing a summon under Section 91 of the Cr.P.C.&nbsp;</b></h4>', '059102864adc24c42e48447eb4eea259.JPG', '8b1d594745096fac6763b607dea67136.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-14', 1, '', '', '2023-02-14 15:32:11', '2023-02-14 10:28:47'),
(2678, 'RjegwADtKvQbnHbHQaqiHpPN2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicle Act. Insurance company not limiting insurance policy till fitness certificate period can not escape liability on the ground that vehicle’s fitness certificate lapsed on the date of accident. Karnataka High Court.', '<h4><span style=\"font-size: calc(1.275rem + 0.3vw); font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><b>Chetan Kumari L.M. vs The Manager, Oriental Insurance Co. Ltd. and another.&nbsp;</b></span></h4><h4><span style=\"font-size: calc(1.275rem + 0.3vw); font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><b>Miscellaneous First Appeal 948/2015 decided on 11 November 2020.&nbsp;</b></span></h4><h4><b><span style=\"font-size: calc(1.275rem + 0.3vw); font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Justice Suraj Govindaraj.&nbsp;</span><br></b></h4><h4><b><span style=\"font-size: 1.3125rem; text-align: justify; font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">5. The Tribunal, noting that the offending Maruti Car did not possess a fitness certificate as on the date of the accident, though it had a fitness certificate on the date of issuance of the insurance policy, held that the owner of the offending car i.e., insured has violated the terms of the policy and therefore, imposed the penalty on the owner of the car and discharged the Insurance Company from its liability.</span><br></b></h4><h4><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>11. Having perused the documents and the judgment, it is seen that as on the date of the issuance of the insurance policy, there was a fitness certificate and vehicle was being plied on the road. At the time of issuance of insurance policy, the insurer has not limited its liability till the date of validity of the fitness certificate. The insurer had issued a policy beyond the validity of the fitness certificate. Therefore, the insurer cannot now contend that the policy would be valid only until the date of the validity of the fitness certificate more so when the insurer has collected the premium for the entire period without any limitation. Needless to say that at the time of issuance of the insurance policy, the insurer has to verify the validity of the required document including the existence of a valid fitness certificate Therefore, I am of the considered opinion that when the insurer knowing fully well that the fitness certificate was valid only till 23.07.2013 having issued a policy to cover the period beyond the said date, insurer would be liable to make payment of compensation for the entire period during which the insurance policy is in operation subject to recovering the same from the insured on account of&nbsp; violation&nbsp; committed&nbsp; by&nbsp; the&nbsp; insured&nbsp; in&nbsp; not renewing the fitness certificate as agreed by the insured in terms of the policy.</b></span></div></h4><h4><div style=\"text-align: justify;\"><b><br></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Appeal allowed.</b></span></div></h4>', 'a1341cf864ddd235b2c06aca9d321b92.jpeg', 'b31163bc2ea1536d9265c4a5ba8b9635.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-15', 1, '', '', '2023-02-15 11:09:33', '2023-02-15 11:09:33'),
(383, 'blonvXGY6KOXPCFXa8etlqoJ4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Director appointed by a Venture Capital Company can be prosecuted as regards criminal offences alleged against the company where investment is made. Karnataka High Court ', '<h4></h4><h4><b>Shantanu Rastogi vs State of Karnataka and another. </b></h4><h4><b>Criminal Petition 5084 of 2020 decided on 21 January 2021.</b></h4><h4><b> Justice Suraj Govindaraj&nbsp;&nbsp;<br></b></h4><h4><b><br></b></h4><h4><b>15. Whether a Director appointed by a Venture Capital Company can be prosecuted as regards criminal offences alleged against the company where investment is made?</b></h4><h4><b><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\">15.1 Sri.D.P.Singh, learned counsel appearing for petitioners in Crl.P No.5092/2020 and 5084/2020 has sought to contend that the petitioners therein are nominal Directors and/or investee Directors appointed by the Venture Capital Company and as such by relying on the Master Circular No.1/2011 and General Circular No.1/2020, he submitted that no criminal proceedings could be taken up against the nominal Directors.</span><br></b></h4><h4><b>15.2 The Master Circular applies to only Directors who are appointed in listed companies where the Securities and Exchange Board of India (SEBI) requires nomination of certain Directors designated as independent Directors; the Directors shall be nominated in public sector undertakings by the respective Government and the Directors shall be appointed by Public Sectors Financial Institutions and/or Banks in a Company and/or Directors nominated by the Government under Section 408 of the Companies Act, 1956. None of these requirements are fulfilled by&nbsp; the petitioners in the present case. Therefore, the Master Circular No.1/2011 would not be attracted to these investee Directors.<br></b></h4><h4><b>15.5 By relying on the judgment&nbsp; in&nbsp; Girdhari Lal Gupta\'s case (supra), it is sought to&nbsp; &nbsp;be contended that the investee Directors are not the persons in charge of and responsible for the conduct of the affairs of the Company inasmuch as they are non executive Directors. Relying on Harmeet Singh Paintal\'s case (supra), it is contended that unless there are specific averments made against a particular Director, no criminal proceedings could be initiated against such Director. There cannot be vicarious liability just on the basis of such a person being a Director. There must be overt act committed by such person to be arrayed as an accused. By relying on Sunil Bharti Mittal\'s case (supra), it is contended that the investee Directors have not acted on behalf of the Company in respect of the allegations made in the complaint, there is no allegations made against the investee Director of they having stolen any data and/or contacted any mock clients. They being mere investee Directors unless there is specific allegations made against them no criminal proceedings could be continued.<br></b></h4><h4><b>15.6 The said principles are now required to be applied to the allegations made in the complaint by \'Mygate\' against \'NoBroker\' and these investee Directors.<br></b></h4><h4><b>15.7.In Girdhari Lal Gupta&nbsp; (supra),&nbsp; it&nbsp; was&nbsp; held that “a person in-charge and responsible for the conduct of the affairs of a company” would mean a person in over- all control of the day to day business of&nbsp; the company or firm. The life blood of a company is its finances, the so called investee directors being incharge of the finances, it cannot be said that they are not responsible for the conduct of the Company. There is a periodical review conducted as regards the performance of the company, audit conducted as regards the amounts spent, which would be the basis for the investor to release funds or further invest in the company. There being a strict financial control exercised by the investor company as regards the financial affairs of nobroker.<br></b></h4><h4><b>15.8 Harmeet Singh Paintal\'s case (supra), it has been held that \"if the accused is a Director or an officer of a company who signed the cheques on behalf of the company then also it is not necessary to make specific averment in the complaint.\" Admittedly the Investee Directors were incharge of the finances and there could be no financial decision taken without their concurrence and/or approval. The entire offence alleged against the company requiring the use of substantial financial resources of the company, it cannot at this stage be said that the investee Directors had no role to play in the same. It is not their case that they were not aware of the business, the only defence being that they were not incharge of the day to day&nbsp; affairs, this aspect in my considered opinion can only be considered after investigation is complete and not at the stage of registration of the FIR.<br></b></h4><h4><b>15.9 In Sunil Bharti Mittal\'s case&nbsp; (supra),&nbsp; it was held that \"It is abundantly clear from the above that the principle which is laid down is to the effect that the criminal intent of the “alter ego” of the company, that is the personal group of persons that guide the business of the company, would be imputed to the company/corporation. The legal proposition that is laid down in the aforesaid judgment in Iridium India case is that if the person or group of persons who control the affairs of the company commit an offence with a criminal intent, their criminality can be imputed to the company as well as they are “alter ego” of the company.\" This being relatable to the prosecution of a company for a criminal offence. Applying the said dicta to the present case the company can be prosecuted for a criminal offence as that complained of in the present case so also could any officer of the company who controls the affairs of the company, in the present case the investee directors controlling the finances of the company, it cannot at this stage be said that they are not in charge of the affairs of the company, or did not have a say in the manner of running of the company, which is however subject to investigation and/or trial.<br></b></h4><h4><b>15.10 In Standard Chartered Bank\'s case (supra), it was held that \"In the case of a Director, Secretary or Manager [as defined in Section 2(24) of the Companies Act] or a person referred to in clauses (e) and (f) of Section 5 of the Companies Act, an averment in the complaint that he was in charge of, and was responsible to the company, for the conduct of the business of the company is necessary to bring the case under Section 141(1) of the Act. No further averment would be necessary in the complaint, though some particulars will be desirable. They can also be made liable under Section 141(2) by making necessary averments relating to consent and connivance or negligence, in the&nbsp; complaint, to bring the matter under that sub-section.\" Applying the said dicta to the present case it is seen that there are sufficient averments made in the complaint against the investee directors making allegation as regards their involvement and at this stage it cannot categorically be said that they are not involved.<br></b></h4><h4><b>15.11 Admittedly the Petitioners in Crl Pet no 5084 of 2020 and 5092 of 2020 are investee directors in that they have been nominated on the board by the venture capital firm which has invested in the company. These Directors would have knowledge of what is discussed during the board meetings and the steps that are being taken in respect of the business of the company.&nbsp;<br></b></h4><h4><b>15.12 The Directors who are appointed by the investor company, cannot be said to be independent directors and/or nominal directors of the company. They admittedly have an important role to play in the financial decisions of the Company, without which the day-to-day activities of the company cannot be performed<br></b></h4><h4><b>15.14 It is but required for the so called investee directors who are vested with the obligation of maintaining the financial integrity or discipline of the company to see to it that \'Nobroker\' does not spend monies in an improper manner and or for commission of criminal offences,&nbsp; that being their sole duty on the board. Since monies have been spent on the commission of the offences and financial benefit derived by the investor company from such action, it cannot without investigation be categorically stated that the investee directors were not involved in the commission of the offence as alleged.<br></b></h4><h4><b>15.16 For all the aforesaid reasons it cannot at this stage be said that the investee directors were not in charge of or were not knowledgeable of or did not participate in the commission of the offence, for the purposes of exercise of jurisdiction under section 482 of the Cr.P.C.<br></b></h4><h4><b><br><span style=\"background-color: rgb(255, 255, 0);\">16. I answer Point No.2 by holding that a Director appointed by a Venture Capital Company can be prosecuted as regards criminal offences alleged against the company where&nbsp; investment is made, subject however to the investigation disclosing their involvement in the commission of the offence. Merely because a director has been appointed by an investor - venture capital company, it cannot be said that such a Director is a nominal or a non-executive director of the company, to seek for quashing an FIR. The aspect of involvement of such a director in the offence can only be ascertained after investigation is completed. Such a director cannot be compared with an Independent Director who has no role to play in the business of the company and does not derive any benefit thereform. A director appointed by an investor to safeguard the investment made by the investor cannot be said to be independent.</span></b></h4><p class=\"MsoListParagraph\" style=\"margin-right:21.65pt;text-indent:-54.0pt;\r\nline-height:200%;mso-list:l0 level2 lfo1;tab-stops:133.65pt\"><span lang=\"EN-US\" style=\"font-size:13.0pt;mso-bidi-font-size:\r\n11.0pt;line-height:200%\"><o:p></o:p></span></p>', '8c33a8b6f7a2774c879425cac88417b9.JPG', 'd0ea46d16d98153e21a7646c73933470.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-12', 1, '', '', '2021-01-28 05:16:38', '2023-01-12 15:41:57');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(384, 'aovGtPEqjMdYf9dlnlAnxG9ZT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Res Judicata. Issue decided collaterally or incidentally in earlier proceedings would not operate as res judicata. Supreme Court  ', '<h4 style=\"margin-top: 0cm;\"></h4><h3><span style=\"font-size:10.0pt;font-family:\" verdana\",\"sans-serif\";=\"\" mso-bidi-font-weight:bold;mso-bidi-font-style:italic\"=\"\"><b>Nand Ram v. Jagdish\r\nPrasad, (2020) 9 SCC 393. Decided on 19 March 2020. Judgment Link:&nbsp;&nbsp;</b></span><b style=\"font-size: 13.3333px;\"><a href=\"https://main.sci.gov.in/supremecourt/2011/4832/4832_2011_17_1502_21562_Judgement_19-Mar-2020.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2011/4832/4832_2011_17_1502_21562_Judgement_19-Mar-2020.pdf</a></b></h3><h4 style=\"margin-top: 0cm;\"><span style=\"font-size:10.0pt;font-family:\" verdana\",\"sans-serif\";mso-bidi-font-weight:=\"\" bold;mso-bidi-font-style:italic\"=\"\"><b>Relevant paragraphs&nbsp;20</b>. In a\r\njudgment reported as<i> Sajjadanashin Sayed Md. B.E. Edr. v. Musa Dadabhai Ummer\r\n[Sajjadanashin Sayed Md. B.E. Edr. v. Musa Dadabhai Ummer, (2000) 3 SCC 350]\r\n</i>this Court held that if a matter was only “collaterally or incidentally” in\r\nissue and decided in an earlier proceeding, the finding therein would not\r\nordinarily be res judicata in a latter proceeding where the matter is directly\r\nand substantially in issue. This Court found that the statement of law\r\ndelineated by Mulla, 15th Edn., p. 104 is the correct one, that if the issue\r\nwas “necessary” to be decided for adjudicating on the principal issue and was\r\ndecided, it would have to be treated as “directly and substantially” in issue\r\nand if it is clear that the judgment was in fact based upon that decision, then\r\nit would be res judicata in a latter case. Such is the test for deciding into\r\nwhich category a case falls. One has to examine the plaint, the written\r\nstatement, the issues and the judgment to find out if the matter was directly\r\nand substantially in issue <i>(Isher Singh v. Sarwan Singh [Isher Singh v. Sarwan\r\nSingh, AIR 1965 SC 948] and Mohd. Salie Labbai v. Mohd. Hanifa [Mohd. Salie\r\nLabbai v. Mohd. Hanifa, (1976) 4 SCC 780] ). </i>Which matters are directly in\r\nissue and which are only collaterally or incidentally in issue, must be\r\ndetermined on the facts of each case. A material test to be applied is whether\r\nthe court considers the adjudication of the issue material and essential for\r\nits decision.<br></span><span style=\"font-size:10.0pt;font-family:\" verdana\",\"sans-serif\";mso-bidi-font-weight:=\"\" bold;mso-bidi-font-style:italic\"=\"\"><b>23.</b> The\r\nissue in the proceedings under Section 30 of the Act, before the Reference\r\nCourt was restricted to the apportionment of compensation, consequent to the\r\nacquisition of the leased land. The argument was raised that the lessee had\r\nanother 14 years of the lease period, therefore, the lessee claimed compensation\r\nin lieu of the unexpired lease period. The issue was restricted to the payment\r\nof compensation on account of the unexpired period of lease. The issue in\r\nquestion was not the title of the appellants or the eviction of the respondent.\r\nStill further, the finding of the Reference Court, as reproduced above (see\r\npara 6, above), is that the respondent had no right to claim a share in the\r\ncompensation. The entitlement of the appellants to claim possession from the\r\ntenant was not an issue in the previous proceedings.<br></span><span style=\"font-size:10.0pt;font-family:\" verdana\",\"sans-serif\";mso-bidi-font-weight:=\"\" bold;mso-bidi-font-style:italic\"=\"\"><b>24.</b>\r\nBefore the award was announced by the Reference Court, part of the land\r\nacquired was de-notified. After denotification of the land, the respondent\r\ncontinued to be in possession and the title of the appellants as owners stood\r\nrestored. Denotification under Section 48 of the Act is possible only when\r\npossession has not been taken and the land has not been vested in the State.\r\nThe effect of denotification is that the land comprising Khasra No. 9/19 was\r\nnever deemed to be acquired. Once the land was de-notified, the status of the\r\nparties as they existed prior to notification under Section 4 of the Act stood\r\nrevived.<br></span><span style=\"font-size:10.0pt;font-family:\" verdana\",\"sans-serif\";mso-bidi-font-weight:=\"\" bold;mso-bidi-font-style:italic\"=\"\"><b>25.</b> The\r\nHigh Court has relied upon the findings recorded by the Reference Court that\r\nthe tenancy stood terminated so as to deny the apportionment of the\r\ncompensation in respect of acquisition of land. The issue examined by the\r\nReference Court was whether the defendant was entitled to any share of\r\ncompensation awarded for the land acquired. Such issue was decided against the\r\ndefendant. It is this finding that the defendant is not entitled to any share\r\nof the compensation awarded which operates as res judicata in a subsequent suit\r\nand not the reasonings recorded by the Court for arriving at such a finding. In\r\na judgment in Union of India v. Nanak Singh [Union of India v. Nanak Singh, AIR\r\n1968 SC 1370] , it has been held that what operates as res judicata is the\r\ndecision and not the reasons given by the court in support of the decision.<br></span><span style=\"font-size:10.0pt;font-family:\" verdana\",\"sans-serif\";mso-bidi-font-weight:=\"\" bold;mso-bidi-font-style:italic\"=\"\"><b>26</b>. In\r\nanother judgment in <i>Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy\r\n[Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, (1970) 1 SCC 613] ,\r\n</i>a three-Judge Bench of this Court held that the previous decision on a matter\r\nin issue alone is res judicata, the reasons for such decision are not res\r\njudicata. This Court held as under: (SCC p. 617, para 5) “5. … A decision of a\r\ncompetent court on a matter in issue may be res judicata in another proceeding\r\nbetween the same parties: the “matter in issue” may be an issue of fact, an\r\nissue of law, or one of mixed law and fact. An issue of fact or an issue of\r\nmixed law and fact decided by a competent court is finally determined between\r\nthe parties and cannot be reopened between them in another proceeding. The\r\nprevious decision on a matter in issue alone is res judicata: the reasons for\r\nthe decision are not res judicata. A matter in issue between the parties is the\r\nright claimed by one party and denied by the other, and the claim of right from\r\nits very nature depends upon proof of facts and application of the relevant law\r\nthereto. A pure question of law unrelated to facts which give rise to a right,\r\ncannot be deemed to be a matter in issue. When it is said that a previous\r\ndecision is res judicata, it is meant that the right claimed has been\r\nadjudicated upon and cannot again be placed in contest between the same\r\nparties. A previous decision of a competent court on facts which are the\r\nfoundation of the right and the relevant law applicable to the determination of\r\nthe transaction which is the source of the right is res judicata. A previous\r\ndecision on a matter in issue is a composite decision: the decision on law\r\ncannot be dissociated from the decision on facts on which the right is founded.\r\nA decision on an issue of law will be as res judicata in a subsequent\r\nproceeding between the same parties, if the cause of action of the subsequent\r\nproceeding be the same as in the previous proceeding, but not when the cause of\r\naction is different, nor when the law has since the earlier decision been\r\naltered by a competent authority, nor when the decision relates to the\r\njurisdiction of the court to try the earlier proceeding, nor when the earlier\r\ndecision declares valid a transaction which is prohibited by law.”<br></span><span style=\"font-size:10.0pt;font-family:\" verdana\",\"sans-serif\";mso-bidi-font-weight:=\"\" bold;mso-bidi-font-style:italic\"=\"\">27. Thus,\r\nthe finding returned in the award of the Reference Court (Ext. PW 1/12) that\r\nthe lease stood determined on account of non-payment of rent was a finding made\r\nby the Reference Court for a limited purpose i.e. not to accept the defendant\'s\r\nclaim for compensation. Such finding cannot be binding on the parties in a suit\r\nfor possession based on title or as a lessor against a lessee. Section 11 of\r\nthe Code bars the subsequent court to try any suit or issue which has been\r\ndirectly and substantially in issue in a former suit. The issue before the\r\nReference Court was apportionment of compensation and such issue having been\r\ndecided against the defendant, the reference to notice for termination of\r\ntenancy does not operate as res judicata. Therefore, the finding recorded by\r\nthe High Court that the order of the Reference Court operates as res judicata\r\nwas clearly not sustainable. The first substantial question of law has been,\r\nthus, wrongly decided.</span></h4><p style=\"margin-top:0cm\"><o:p></o:p></p><p style=\"margin-top: 0cm;\"><o:p></o:p></p><p style=\"margin-top: 0cm;\"><o:p></o:p></p><p style=\"margin-top: 0cm;\"><o:p></o:p></p><p style=\"margin-top: 0cm;\"><o:p></o:p></p><p style=\"margin-top: 0cm;\"><o:p></o:p></p><p>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n</p><p style=\"margin-top: 0cm;\"><o:p></o:p></p>', '8b7be06484fda1de64055eb98001df18.jpg', '78b625cd0b78c2df3bea688c1482c866.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-03-19', 1, '', '', '2021-01-28 23:36:11', '2021-01-28 23:39:08'),
(385, 'nXu0aJCYlRM6vFu8yPgNAbgFq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Delay to conclude disciplinary proceedings and denial of service/terminal benefits on this ground inflicts mental agony.  Karnataka High Court quashes enquiry  proceedings against employee. ', '<h4>B.S.Ramaswamy vs State of Karnataka and Others. Writ Petition 5838/2020 decided on 13 January 2021. Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/361305/1/WP5838-20-13-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/361305/1/WP5838-20-13-01-2021.pdf</a><br>Service Law. Delay to conclude disciplinary proceedings and denial of service/terminal benefits on this ground is clear case of mental agony. Karnataka High Court quashes enquiry&nbsp; proceedings against employee.&nbsp;<br>Relevant paragraphs: 15. This Court notices with pain in umpteen number of cases where disciplinary proceedings are initiated by issuance of charge sheet and are not concluded within reasonable time and the employee against whom proceedings are pending is always kept on the tenterhooks of the proceedings and denied service and terminal benefits that would become available to him, but for the pendency and protraction of such proceedings apart from causing immense mental agony. It is not that the Government has not taken any steps to address this issue. The Government has issued official memoranda from time to time fixing time limits for conduct and conclusion of departmental enquiries. The relevant official memorandum of this kind was issued on 31.05.1997 wherein the maximum time limit for conclusion of a departmental enquiry against a Government servant was capped at 21 months. This came to be subsequently modified by another official memorandum dated 28.06.2001 capping the time limit for conclusion of the enquiry on its initiation to 9 months. The aforesaid official memoranda is again reiterated by another official memorandum issued on 09.11.2020. In terms of the afore-extracted official memoranda, enquiry proceedings against a delinquent employee is required to be completed within nine months from its initiation i.e., issuance of charge sheet.<br>16. Though the said official memoranda has been in existence, it is seldom followed by the State&nbsp; or its instrumentalities, most conspicuously seldom in the case at hand. Therefore, it has&nbsp; become imperative to issue a direction to the State and its instrumentalities to adhere to the timeline stipulated in the aforesaid official memoranda in its letter and spirit and not place the same in cold storage. <span style=\"background-color: rgb(255, 255, 0);\"><b>Therefore, the State Government and all its instrumentalities shall adhere to the timeline stipulated in the aforesaid memoranda including departmental enquiries that are entrusted to the Lokayukta by the Government in terms of Rule 14-A of the KCS(CCA) Rules. Any deviation from the timeline stipulated can only be for reasons to be recorded in writing, failing which, there would be mushrooming of cases of the nature of the one that is at hand.</b></span><br>17. The petitioner retired on attaining the age of superannuation on 31.01.2012, on the ground that disciplinary proceedings are pending no terminal benefits are paid for nine long years for no fault of the petitioner and now under the guise of conduct of a denovo enquiry, the payment of any terminal benefit is further deferred driving a retired employee to insurmountable hardship and mental agony as he is denied any benefit after his retirement. It is a fit case where the second respondent has to be mulcted for dealing with its employee in the manner narrated hereinabove.</h4><p><br></p>', '56b6563c96992f94ea6b2a64d65cf59d.jpg', '1c58a84303d29f4b7c2770befe942109.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-13', 1, '', '', '2021-01-29 01:12:03', '2021-01-29 01:51:46'),
(386, 'WsBDsSgYTWJVyFwdjG7kOBw2g', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land acquisition under 1894 Act. Once the award is approved compensation paid and possession of the land taken over by Government acquisition proceedings cannot be reopened by re-notification of the already acquired land. Supreme Court', '<h4>Assam Industrial Development Corporation Ltd. v.&nbsp; Gillapukri Tea Company Limited &amp; Ors. Etc.,&nbsp; </h4><h4>Civil Appeal No(S). 251-252 of 2021 decided on 28 January 28, 2021.&nbsp;</h4><h4>Justice S. Abdul Nazeer and Justice Sanjiv Khanna<br></h4><h4><br>12. We have carefully considered the submissions of the learned counsel made at the Bar and perused the materials placed on record. Having regard to the contentions urged, the crucial question for consideration is whether an award in respect of the first respondent’s land was approved by the State Government on 05.03.2010. Needless to say, if the award was not approved on 05.03.2010, but rather on 06.01.2014 as contended by the first respondent, then the 2013 Act will be applicable and the first respondent will be eligible to receive compensation in accordance therewith.<br>17. In the above scenario, the arguments of the first respondent are untenable. <b style=\"background-color: rgb(255, 255, 0);\">Once the award has been approved, compensation has been paid thereunder and possession of the land has been handed over to the Government, acquisition proceedings could not have been reopened, including by way of re-notification of the already acquired land under Section 4 of the L.A. Act by the Government. </b>Contrary to the first respondent’s contention, the question of lapsing under Section 24 of the L.A. Act could not have arisen in this case once the award was approved on 05.03.2010.<br>18. So far as the second set of acquisition proceedings are concerned, without addressing the factual veracity of the State Government’s contention that the second award was meant to be only in respect of landowners not covered by the original award, we are of the opinion that it would not have been possible for the State Government to initiate acquisition proceedings in respect of already acquired land such as that of the first respondent herein. This position has been affirmed by this Court in D. Hanumanth SA &amp; Ors. v. State of Karnataka and Ors.<br>The recent decision&nbsp; of the Constitution Bench of this Court in Indore Development Authority v. Manoharlal and Ors. 5 has also affirmed that once possession is taken by the State, the land vests absolutely with the State and the title of the landowner ceases. We find no reason to deviate from this settled position of law and thus are unable to agree with the High Court’s reliance on the letters dated 21.07.2012 and 06.01.2014 to nullify the original award and allow fresh acquisition proceedings in respect of the first respondent’s land which had already been acquired and has been under the possession of the appellant since 11.06.2010.</h4><div><br></div>', 'b8b14ef2cf762364572ef259ccabb438.jpeg', '6c43785be042dff735aca7c1eb00fae1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-01', 1, '', '', '2021-01-29 04:16:23', '2023-02-01 10:49:37'),
(2620, 'HYv92h8NpYq8aDXtQMUDi9ZUl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Amounts deposited with the office / registry of the court / tribunal should mandatorily be deposited in a bank/ financial institution to ensure that no loss is caused in the future. Supreme Court observes. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K.L. Suneja and another Vs Manjeet Kaur Monga Through LR and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1401 of 2019 decided on 31 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice S. Ravindra Bhat.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. In 1989, one Smt. Gursharan Kaur had applied for a flat in a proposed\r\ngroup housing scheme called ‘Siddharth Shila Apartments’, situated at Plot No.\r\n24 in Vaishali Scheme, Ghaziabad, U.P. (hereinafter, “Scheme”). After\r\ndepositing three instalments towards the flat, she passed away, and was\r\nsucceeded by her daughter-in-law Dr (Mrs.) Manjeet Kaur Monga, who\r\ndeposited the fourth instalment. Thereafter, the developer issued an allotment\r\nletter dated 21.05.1992, earmarking Flat No. D-301 (3rd floor) with a super builtup area of 1375 sq. ft. in the Scheme. Dr Manjeet Kaur Monga deposited two\r\nfurther instalments, with the sixth instalment deposited in September 1993.\r\nEight years later, i.e., in December 2001, a demand notice for payment of the\r\neighth and ninth instalments was issued to the complainant. She resisted this\r\nnotice, as there was no intimation about the progress of work and delivery of\r\npossession of flat to her. The developer however, issued a letter thereafter,\r\ncancelling the allotment of the complainant’s flat on 30th April 2005. The\r\ncomplainant had deposited seven instalments up to 4th October 1993 totalling ?\r\n4,53,750/-. With the cancellation letter, the developer enclosed a Pay Order\r\ndated 30th April 2005 for ? 4,53,750/- issued by Citibank towards full refund of\r\npayments made by the complainant towards the flat.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Aggrieved, the complainant through her lawyer, issued a notice dated 7\r\nth\r\nSeptember 2005 to the developer, stating that she was always ready and willing\r\nto pay the instalments towards the flat, in tune with the allotment letter, but the\r\ndeveloper did not keep up its part of the bargain regarding timeliness of delivery <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of possession and quality of construction. The notice alleged that even 40% of\r\nthe construction work had not been completed till the seventh instalment, though\r\nthe complainant had paid a cumulative of ? 4,53,750/-. She demanded\r\npossession of the flat besides claiming ? 25,00,000/- as compensation. With the\r\nnotice, the complainant returned the Pay Order of ? 4,53,750/-. She also sent a\r\ncheque of ?1,00,000/- expressing willingness to pay the price of the flat. The\r\ndeveloper replied to the notice on 26th September 2005 denying the allegations\r\nof delay in construction and accused the complainant of default in payment of\r\ninstalments. However, the developer did concede to slight delay in completion\r\nof the project due to litigation with the Ghaziabad Development Authority. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">20. The materials on record would disclose that in this case, after issuing\r\nnotice, the complainant returned the Pay Order received by her under cover of\r\nletter dated 7\r\nth September 2005, however, the developer (in response to the\r\ncomplainant’s notice), by letter dated 26th September 2005, denied the\r\nallegations contained in the notice and also returned the Pay Order for ?\r\n4,53,750/- and the banker’s cheque for ? 1 lakh. It is also evident that on 7th\r\nOctober 2005, the complaint was filed. A copy of the complaint is on record.\r\nCuriously, it contains no mention of the Pay Order, nor does it say that the\r\ncomplainant filed the Pay Order in original along with the pleading. This is an </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">undeniable fact.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. From the impugned order, it is evident that the Tribunal accepted the\r\nexplanation of Citibank that since the Pay Order in question had become stale,\r\nits proceeds / funds were moved to its ‘Unclaimed Sundry Account’, and did not\r\nattract any interest in terms of the RBI directions. The bank had also deposed\r\nthat the Pay Order was cancelled on the request of the developer through its\r\nletter dated 26th May 2016 and that the funds were credited back to the account\r\nof the developer on 16th June 2016. It was further noticed that the amount for\r\nissuing the Pay Order was deducted from the current account of the developer.\r\nAfter noticing these facts, the Tribunal appears to have been swayed by the\r\ncircumstance that the developer was held liable for unfair trade practice, and\r\ndirected to pay compensation (in terms of the previous orders of the COMPAT)\r\naffirmed by this court, i.e., 15% compound interest on ? 4,53,750/-.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. In the opinion of this court, the impugned order has not rested its findings\r\non any principle of law, much less any statutory provision. The Tribunal appears\r\nto have been completely swayed by the complainant\'s plight. In doing so, it did\r\nnot give due consideration to the fact that ? 4,53,750/- was debited from the\r\naccount of the developer. The complainant, for reasons best known to her, filed\r\nthe original Pay Order due to perhaps lack of proper advice or instruction.\r\nApparently, no order contemporaneously was sought from the MRTP\r\nCommission, which would have protected the interests of the complainant with <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respect to the money received even while ensuring that her contentions on the\r\nmerits with respect to entitlement towards the flat were preserved. Many\r\navenues / alternatives were available. Firstly, the complainant could have sought\r\nfor a deposit of the proceeds of the Pay Order in an account, to be maintained\r\nby the Registrar of the Commission. Secondly, she could have sought for a\r\n‘without prejudice’ order enabling her to encash the amount, and at the same\r\ntime ensure that her claim was not defeated on that score. Thirdly, equally, she\r\ncould have sought for appropriate orders that the amount be maintained by the\r\ndeveloper, who could, in the event it became necessary, be directed to pay the\r\nprincipal along with such interest as the Commission or the Tribunal deemed\r\nappropriate and in the interests of justice. Since none of these choices were opted\r\nfor, and also having regard to the fact that the amount in question was\r\nundoubtedly debited from the developer\'s current account, there ought to have\r\nbeen a discussion of what was the applicable legal provision which fastened any\r\nliability upon the developer. This was more important because the Tribunal in\r\nthe present case has accepted Citibank’s explanation regarding interest (or\r\nrather, its absence of liability, even though the amount was undoubtedly with\r\nthe bank for about 11 years).</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. In the present case, the complainant was aware that the Pay Order had been\r\ntendered by the developer to her; nevertheless she filed the original Pay Order\r\nwith her complaint, and did not seek any order from the MRTP Commission at\r\nthe relevant time. The pleadings in the complaint did not disclose that the Pay\r\nOrder was filed in the Commission, to enable the developer to respond\r\nappropriately. In these circumstances, the developer’s argument that the rule\r\nembodied in Order XXI, Rule 4 CPC, is applicable, is merited. The developer\r\ncannot be fastened with any legal liability to pay interest on the sum of ?\r\n4,53,750/- after 30th April 2005.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. This court is also of the opinion that the complainant’s argument that on\r\naccount of the omission of the developer, she was wronged, and was thus\r\nentitled to receive interest, cannot prevail. The records nowhere disclose any\r\nfault on the part of the developer; on the other hand, the complainant did not\r\ntake steps to protect her interests.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the present case too, the complainant cannot claim interest from the\r\ndeveloper, who had returned the Pay Order. As discussed, at the time of filing\r\nof the complaint, she could have chosen one among the various options to ensure\r\nthat the amount presented to her was kept in an interest-bearing account, without\r\nprejudice to her rights to claim interest later. In these circumstances, no equities\r\ncan be extended to her aid.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n34. As regards the complainant’s appeal, the contention is that the impugned\r\norder is in error, because the Tribunal ought to have directed that the developer\r\nought to have been directed to pay interest on the sum of ? 4,53,750/- from 4th\r\nOctober 1993 till the date of its realization i.e., 7th May 2016. This plea is plainly\r\nuntenable, because the interest payable for the past period was concluded in the\r\nprevious proceedings. The complainant did not point to any rule or binding legal\r\nprinciple which obliged the developer to pay such interest, or justify the\r\ndirection in the impugned order, by showing how such liability arose in the facts\r\nand circumstances of this case. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36. In view of the above discussion, the developer’s appeal, i.e., C.A. No. 1401\r\nof 2019 is allowed. The impugned order is hereby set aside. The complainant’s\r\nappeal, i.e., C.A. No. 4530 of 2019, is dismissed. There shall be no order on\r\ncosts.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '66e767237df6a4212830e559ebdad3e5.JPG', '2238621679853af76d1290f390b7aa3b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-03', 1, '', '', '2023-02-01 12:17:21', '2023-02-03 12:17:06'),
(387, '8t3jggTpTsa4Tk4zFOs9NW2wN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Reservation. Aided educational institutions. Each single post in a particular discipline has to be treated as a single post and can not be reserved.  ', '<h4><b>State of Karnataka v. K. Govindappa, (2009) 1 SCC 1.&nbsp;<span style=\"font-size: 14px;\">Civil Appeal 6729/2008 decided on 20 November 2008. Judgment Link:&nbsp;</span></b><span style=\"font-size: 14px;\"><b><a href=\"https://main.sci.gov.in/jonew/judis/33106.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/33106.pdf</a></b></span><br></h4><h4>Relevant paragraphs. 20. We have carefully considered the submissions made on behalf of the respective parties and the decisions cited by learned counsel in support thereof. In dealing with the issue raised in this appeal, it has to be kept in mind that some of the earlier decisions in Madhav case, (1997) 2 SCC 332&nbsp; in Suresh Chandra v. J.B. Agarwal (1997) 5 SCC 363 and Post Graduate Institute of Medical Education &amp; Research v. K.L. Narasimhan, (1997) 6 SCC 283 in which reservation by rotation even in respect of a single post had been approved, was subsequently overruled in the Constitution Bench decision in Post Graduate Institute of Medical Education &amp; Research v. Faculty Assn.7 and it was held that in no case could reservation be made applicable in respect of a single post. The Constitution Bench approved the views expressed in Chakradhar Paswan (Dr.) case (1988) 2 SCC 214 following those expressed by the earlier Constitution Bench in Arati Ray Choudhury case3. In view of the above, the only question which we are called upon to consider is whether the High Court was right in treating the post of Lecturer in History in Respondent 2 college as a single isolated post forming a separate cadre in itself and not part of the cadre of Lecturers comprising all the different disciplines taught in the college.<br>22. While there can be no difference of opinion that the expressions “cadre”, “post” and “service” cannot be equated with each other, at the same time the submission that single and isolated posts in respect of different disciplines cannot exist as a separate cadre cannot be accepted. In order to apply the rule of reservation within a cadre, there has to be plurality of posts. <b style=\"background-color: rgb(255, 255, 0);\">Since there is no scope of interchangeability of posts in the different disciplines, each single post in a particular discipline has to be treated as a single post for the purpose of reservation within the meaning of Article 16(4) of the Constitution. In the absence of duality of posts, if the rule of reservation is to be applied, it will offend the constitutional bar against 100% reservation as envisaged in Article 16(1) of the Constitution.</b><br>23. The decision in Chakradhar Paswan (Dr.) case, which has been subsequently approved by the Constitution Bench in Post Graduate Institute of Medical Education &amp; Research case (1998) 4 SCC 1 makes it clear that isolated and separate posts can exist within a cadre and in case of such posts, if there was only one post, the same could not be set apart for a reserved candidate.<br>24. In our view, the present case falls within the category of single isolated posts within a cadre in respect whereof the rule of reservation is inapplicable and the said principle has been correctly applied by the High Court in the facts of this case. As indicated by the High Court, each discipline which consisted of a single post will have to be dealt with as a separate cadre for the said discipline and in view of the settled law that there can be no reservation in respect of a single post, the appointment of Respondent 1 cannot be faulted. This is particularly so having regard to the fact that the several disciplines are confined to one college alone. That is what distinguishes the facts of this case from those of Arati Ray Choudhury case (1974) 1 SCC 87 in which the rule of rotation could be applied on account of the fact that two posts of headmistress were available in two colleges run by the same management. Moreover, in Chakradhar Paswan (Dr.) case&nbsp; on which reliance was placed by the High Court it was noticed that while upholding the rule of rotation the Constitution Bench in Arati Ray Choudhury case did not support reservation in a single cadre post.<br>25. We, therefore, have no hesitation in upholding the decision of the Karnataka High Court, in the facts of this case. The appeal, therefore, must fail, and is dismissed without any order as to costs.</h4><p><br></p>', '1a39d4871c63b554c24d9977fdb0928a.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2008-11-20', 1, '', '', '2021-01-29 22:03:45', '2021-01-29 22:15:00'),
(388, 'RUh1D8J8ANKDDYQP9yeKSuIst', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Reservation. There can be no reservation of a solitary post and that in order to apply the rule of reservation within a cadre there must be a plurality of posts', '<h4><b>R R Inamdar vs State of Karnataka &amp; Ors. Civil Appeal No 1495 of 2016 decided on 28 November 2019.<br></b></h4><h4><b style=\"font-size: 0.875rem;\">Judgment Link:&nbsp;&nbsp;</b><a href=\"file:///C:/Users/Nitin/Desktop/AAAA/B/4327_2016_8_101_18542_Judgement_28-Nov-2019%20(1).pdf\" style=\"font-size: 0.875rem;\">4327_2016_8_101_18542_Judgement_28-Nov-2019 (1).pdf</a><b style=\"font-size: 0.875rem;\"><span style=\"font-size: 0.875rem;\"><a href=\"https://main.sci.gov.in/supremecourt/2016/4327/4327_2016_8_101_18542_Judgement_28-Nov-2019.pdf\" target=\"_blank\"><br></a></span></b></h4><h4>Relevant paragraphs: </h4><h4><span style=\"font-size: 0.875rem;\">At the outset, it would be necessary to note that the decision of the wo-Judge Bench of this Court in K Govindappa (2009) 1 SCC 1, which has been&nbsp;</span><span style=\"font-size: 0.875rem;\">followed by the learned Single Judge as well as by the Division Bench in appeal, dealt with the issue as to whether all posts of Lecturers taken&nbsp;</span><span style=\"font-size: 0.875rem;\">together constituted a cadre for the purpose of reservation or whether a&nbsp;</span><span style=\"font-size: 0.875rem;\">solitary post of Lecturer in History which was not interchangeable with other&nbsp;</span><span style=\"font-size: 0.875rem;\">posts constituted a separate cadre. The High Court held that the post of a&nbsp;</span><span style=\"font-size: 0.875rem;\">Lecturer in History could not be construed to be a cadre together with all&nbsp;</span><span style=\"font-size: 0.875rem;\">other posts of Lecturer. This Court noted that the Constitution Bench in&nbsp;</span><span style=\"font-size: 0.875rem;\">Post Graduate Institute of Medical Education and Research v Faculty&nbsp;</span><span style=\"font-size: 0.875rem;\">Association (1998) 4 SCC 1 had approved the view in Dr. Chakradhar Paswan v State&nbsp;</span><span style=\"font-size: 0.875rem;\">of Bihar (1988) 2 SCC 214 to the effect that there could be no reservation in respect of a&nbsp;</span><span style=\"font-size: 0.875rem;\">single post.<b style=\"background-color: rgb(255, 255, 0);\">&nbsp;</b></span><b style=\"background-color: rgb(255, 255, 0);\"><span style=\"font-size: 0.875rem;\">The principle which has been enunciated by&nbsp;</span><span style=\"font-size: 0.875rem;\">this Court is that there can be no reservation of a solitary post and that in&nbsp;</span><span style=\"font-size: 0.875rem;\">order to apply the rule of reservation within a cadre, there must be a&nbsp;</span><span style=\"font-size: 0.875rem;\">plurality of posts. Where there is no interchangeability of the posts in&nbsp;</span><span style=\"font-size: 0.875rem;\">different disciplines, each single post in a particular discipline has to be&nbsp;</span><span style=\"font-size: 0.875rem;\">treated as a single post for the purpose of reservation within the meaning of&nbsp;</span></b><span style=\"font-size: 0.875rem;\"><b style=\"background-color: rgb(255, 255, 0);\">Article 16(4) of the Constitution.</b> If this principle were not to be followed,&nbsp;</span><span style=\"font-size: 0.875rem;\">reservation would be in breach of the ceiling governed by the decisions of&nbsp;</span><span style=\"font-size: 0.875rem;\">this Court. A circular, of the nature that has been issued by the State of&nbsp;</span><span style=\"font-size: 0.875rem;\">Karnataka, cannot take away the binding effect of the decisions of this&nbsp;</span><span style=\"font-size: 0.875rem;\">Court interpreting the policy of reservation in the context of Article 16(4).&nbsp;</span></h4>', '3e08df8f9b28a92de47be0ccf66b3479.png', '7afabd25aaa6adf2e2141d35208e7601.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2019-11-28', 1, '', '', '2021-01-29 22:44:44', '2021-01-30 02:12:21'),
(389, 'Jgoc5sTwhXpR7nq5QdrFz7A6d', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Compromise before Lok Adalat. Award can be enforced under Section 431 of Criminal Procedure Code. Complainant need not approach Civil Court. Karnataka High Court', '<h4><span style=\"font-size: 14px;\"><b>Somashekara Reddy vs G.S.Geetha. Writ Petition 23519 of 2018. Decided on 7 February 2020</b></span></h4><h4><span style=\"font-size: 14px;\"><b>HELD</b>: (1) Award can be enforced under Section 431 of Criminal Procedure Code. Complainant need not approach Civil Court. (2) In case of default and on application, Magistrate can set aside Compromise and restore complaint</span></h4><h4><span style=\"font-size: 14px;\"><b>Judgment Link</b>:<a href=\"http://judgmenthck.kar.nic.in\" target=\"_blank\"> </a></span><a class=\"oajrlxb2 g5ia77u1 qu0x051f esr5mh6w e9989ue4 r7d6kgcz rq0escxv nhd2j8a9 nc684nl6 p7hjln8o kvgmc6g5 cxmmr5t8 oygrvhab hcukyx3x jb3vyjys rz4wbd8a qt6c0cv9 a8nywdso i1ao9s8h esuyzwwr f1sip0of lzcic4wl py34i1dx gpro0wi8\" href=\"https://l.facebook.com/l.php?u=http%3A%2F%2Fjudgmenthck.kar.nic.in%2Fjudgmentsdsp%2Fbitstream%2F123456789%2F330317%2F1%2FWP23519-18-07-02-2020.pdf%3Ffbclid%3DIwAR29IT-SKxqLOQ8c4Vd8rGKfr-dzhGuPCk2iQy4zNvE_jrdAajVwhDjVV48&h=AT3PrRQunvfd1GsHQPmEe7MZHUHEDhj0gJGrPVp0nBVlVqxJoigkEDoI7S1iq9q9d4A8TxFYLwLqkbzwQgMheJGfCqzrx9SjzBr9QyyxJVeimUfrP44ebz8P70LsrLKz3EZC&__tn__=-U-UK-R&c[0]=AT16Ple_dI9AbatdZzTvU36DDghKlSZprPo7k5UC6JlsOl6nYFHAiQwOO_02fxrAGQpuUO6vAg8RPtk7x-SCiiDwt18Vh_dDgdrzI3A78axqbgXcu5C9PpAPPs_G2FzEuhRdPGcn-a3zK9tfWMFVUwxv9HQ8LZsgRg93\" rel=\"nofollow noopener\" role=\"link\" tabindex=\"0\" target=\"_blank\" style=\"font-family: inherit; font-size: 15px; font-weight: 600; background-color: rgb(255, 255, 255); text-align: inherit; color: var(--blue-link); cursor: pointer; text-decoration-line: underline; outline: none; list-style: none; border-width: 0px; border-style: initial; border-color: initial; padding: 0px; margin: 0px; touch-action: manipulation; display: inline; -webkit-tap-highlight-color: transparent;\">http://judgmenthck.kar.nic.in/.../WP23519-18-07-02-2020.pdf</a></h4><h4><span style=\"font-size: 14px;\">Para 22. Unlike the facts of the case in M/s. Yash Investment Consultants vs Mr. Kartik Ravidhandar (2017 5 KLJ 409, in the present case, liberty is reserved to proceed under Section 431 Cr.P.C.</span></h4><h4><span style=\"font-size: 14px;\">23. The very object and purpose of Legal Services Authority Act and creation of Lok-Adalat is to facilitate easy and fast settlement of disputes. Resolving of disputes does not only mean an agreement to settle the dispute but a complete finality as regards the dispute being achieved.</span></h4><h4><span style=\"font-size: 14px;\">24. During criminal proceedings under Section 138 of N.I. Act, if the accused were to dishonestly state that he was agreeable for reference to Lok-Adalat, in furtherance of which the matter is referred to Lok-Adalat and a compromise being arrived at on certain terms in a dishonest manner in that the accused even at the time knowing fully well that he would not adhere to the terms of the compromise and thereafter the accused not performing his obligation would take up the contention that only methodology available to the complaint is execution of compromise as a civil decree, thereby the accused would have successfully avoided a criminal prosecution, frustrated the complaint and left the complainant with no possibility or lesser possibility of recovering the monies due to him as he would had under Section 138 of N.I. Act.</span></h4><h4><span style=\"font-size: 14px;\">25. While encouraging settlement through Lok-Adalat, it is also required that the interest of the parties are protected and no one misuses or abuses the process Lok-Adalat to harass the other or take undue advantage over the other. The integrity and efficacy of the proceedings before the Lok-Adalat are therefore to be maintained.</span></h4><h4><span style=\"font-size: 14px;\">28. Merely because the settlement was at before the Lok-Adalat, it cannot be contended that the criminal proceedings have been converted into civil proceedings revoking the right of the complainant to enforce his rights in terms of the applicable criminal law.</span></h4><h4><span style=\"font-size: 14px;\"><b>31. Answers to questions:</b></span></h4><h4><span style=\"font-size: 14px;\"><b>1. Depending on the terms of a compromise arrived at before the Lok-Adalat it can be enforced as a Civil decree or in terms of the applicable provisions of Cr.P.C, including that under Section 431 of Cr.P.C. if so provided in the compromise.</b></span></h4><h4><span style=\"font-size: 14px;\"><b>2. In the event of a default of a compromise arrived at before the Lok-Adalat High Court or the trial court can on application made by the complainant set aside the compromise arrived at before the Lok-Adalat, restore the complaint on its file and proceed with complaint or enforce the compromise as per the terms of compromise including by issue of FLW under Section 431 of the Cr.P.C.</b></span></h4>', 'e49a4cbb9c5d6f972eaad6c26d3a8a93.jpg', '93a627032b2b1903979d2625b6691012.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-02-07', 1, '', '', '2021-01-30 02:49:37', '2021-01-30 02:58:11');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(390, 'yY7rupW2jFhSXehumBcpichEN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Costs imposed on a litigant for indulging in frivolous litigation stand on a very different footing. Karnataka High Court imposes cost of Rs. 5 lakhs for abusing process of Court.  ', '<h4><b>S.Prasanna vs Nanjamma. Writ Petition 6464/2017 decided on 27 January 2921. </b></h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/361452/1/WP6464-17-27-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/361452/1/WP6464-17-27-01-2021.pdf</a><br><b>5. As to what the Apex Court cautioned us in matters of abuse of process of court:</b><br>(a) A Three-Judge Bench of the Apex Court in Dnyandeo Sabaji Naik v. Pradnya Prakash Khadekar, (2017) 5 SCC 496 dealing with a case  of  abuse of process  of the court, observed as under:<br><i><b>“13. This Court must view with disfavour any attempt by a litigant to abuse the process. The sanctity of the judicial process will be seriously eroded if such attempts  are not dealt with firmly. A litigant who takes liberties with the truth or  with the procedures of the Court should be left in no doubt about the consequences to  follow.  Others should not venture  along  the  same  path in  the   hope or on a misplaced    expectation of judicial leniency. Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practised in our country, there is no premium on the truth.\"</b></i><br>14.     Courts    across     the      legal      system— this Court not being an exception—are choked with litigation. Frivolous and groundless filings constitute a serious menace  to  the  administration of justice. They  consume  time  and clog the infrastructure. Productive resources which   should     be     deployed     in     the handling of genuine causes are dissipated in attending to cases filed only to  benefit  from delay, by prolonging dead issues and pursuing worthless causes. … Unfortunately,  as  the present case<span style=\"white-space:pre\">	</span>exemplifies, the process of dispensing justice  is  misused  by the unscrupulous to the detriment of the legitimate.  The   present   case    is    an illustration of how a simple issue  has  occupied the time of the courts and of how successive applications have been filed to prolong the inevitable. The person in whose favour the balance of  justice lies  has  in   the process been left in the lurch by repeated attempts to revive a stale issue. This tendency can be curbed only if courts across the system adopt an institutional approach which penalises such  behaviour.  …  It  is the duty of every court to firmly deal with such situations. The imposition of exemplary costs is a necessary instrument which has  to  be  deployed to   weed   out,   as   well   as   to   prevent    the filing of frivolous cases. … We commend  all  courts to deal with frivolous filings in the same manner.”<br>(b) The above observations have been stressed by the Apex Court in a recent decision in RASHID KHAN PATHAN vs. VIJAY KURLE & OTHERS, 2020 SCC Online SC 711 wherein para 9 therein reads as under: <i><b>“9. In a country governed by the rule of law, finality of the judgment is absolutely imperative and   great   sanctity  is   attached    to    the finality of the judgment. Permitting the parties to reopen the concluded judgments of this Court by filing repeated interlocutory applications is clearly  an abuse of the process of law   and   would have far-reaching adverse impact on the administration of justice”.</b></i><br><b>8. As to kind & quantum of the costs:</b><br>(a) The Canadian Court of Appeal speaking through McQuaid, J., in JOHNSTONE vs. THE LAW SOCIETY Of PRINCE EDWARD ISLAND, 2 PEIR B-28 (1988) described costs as the sum of money which the  court  orders  one  party to pay another party in  an  action  as  compensation for the expense of litigation incurred; Justice Bowen in COPPER vs. SMITH, (1884) 26 ChD 700 said: <b><i>“I have found in my experience that there is one panacea which heals every soul in litigation and that is costs …”; </i></b>the award of costs is generally not considered to be a penalty but a method used to reimburse the other party the expenses of litigation and is on the principle of  indemnification;  the  rule ‘costs follow the event’ means  that  courts  usually direct the looser of the legal battle to pay the  victorious  party the costs thereof, of course in its discretion; all  this    is a general norm that obtains in the realm of litigations.<br>(b) The costs imposed on an unscrupulous  litigant for indulging in frivolous or vexatious litigation stand on a very different footing; the Apex Court in  RAMRAMESHWARI DEVI vs. NIRMALA DEVI, (2011) 8 SCC 249 at paras 54 & 55 observed as under: <br><i><b>“While imposing costs, the  court  has  to take into consideration pragmatic realities  and be realistic as to what the defendants or the respondents had to actually incur in contesting  the litigation before different courts. The  court has to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to  be  incurred towards drafting and fling of the counter-affidavit, miscellaneous   charges towards typing, photocopying, court fee, etc. The other factor is for how long the defendants or respondents were compelled to contest  and defend the litigation in various courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in  a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts for the last 40 years.”</b></i><br>(c) In ASHOK KUMAR MITTAL vs. RAM KUMAR GUPTA, (2009) 2 SCC 656 the Hon’ble Supreme Court expressed its anguish observing <i><b>“…the present system of levying meager costs in civil matters (or no costs in some matters), no doubt, is wholly unsatisfactory  and  does  not  act as  a deterrent to vexatious or luxury litigation borne out  of ego or greed, or resorted to as a buying-time tactic. More realistic approach relating to costs may be the need of the hour”;</b></i> in VINOD SETH vs. DEVINDER BAJAJ, (2010)  8 SCC 1, the court emphasized that, the imposition of costs should act as a deterrent to vexatious, frivolous and speculative litigations or defenses and that the spectre of being made liable to pay actual cost should be such, as to make every litigant think twice before putting forth a vexatious, frivolous or speculative claim or defence.<br>In the above circumstances, this Writ Petition being militantly devoid of merits, is liable to be dismissed and accordingly it is, with a penal and exemplary cost of Rs.5,00,000/- (Rupees Five Lakh) only; the petitioner shall pay the same to the respondent within eight weeks.<br>It is open to the respondent to institute contempt proceedings for enforcing the order for costs or to levy execution in the jurisdictional court below, as if this judgment is a decree for all practical  purposes;  the execution proceedings, if filed by her, would be disposed off within a period of three months with further  costs as may  be quantified by the learned Judge of the Executing Court.</h4><div><br></div>', 'c2c2d2a06d92935040914dfd3c0a79be.jpg', '3d4fd4b51e1a06ed104d52dea92a3de4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-27', 1, '', '', '2021-01-30 04:08:41', '2021-01-30 04:10:58'),
(391, '48FA9iVPCttGxZ7khhaFJidMJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Section 482. Mere pendency of civil suit on the issue is not a ground to quash criminal proceedings when serious allegations are made in chargesheet. Karnataka High Court. ', '<h4><b>K.Munirathnam vs The State of Karnataka and others.&nbsp;</b></h4><h4><b>Criminal Petition 5641/2020 decided on 22 January 2021.&nbsp;</b></h4><h4><b>Justice H.P.Sandesh.&nbsp;</b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/361317/1/CRLP5641-20-22-01-2021.pdf\" target=\"_blank\"><br></a>Having considered the factual aspects of the case, it is nothing but disputed questions are before this Court. This Court cannot quash the proceedings under Section 482 of Cr.P.C. and cannot answer with regard to the disputed questions involved in the matter. The Court has to look into the contents of the complaint. Subsequently the matter has been investigated and charge-sheet has been filed. When the statements of the witnesses have been recorded and when the specific allegation that signature of the complainant has been forged while executing the sale deed in favour of accused No.2, though the learned counsel for the petitioner relies upon the judgment of the Apex Court in the case of <i>Rajeshbhai Mulibhai Patel and others vs State of Gujarat and another reported in (2020) 3 SCC 794</i>,&nbsp; the Court has to take note of the factual aspect of the case. In the said case, the dispute is with regard to the receipt.<b> In the present case, the dispute is with regard to execution of the sale deed forging the signature of the complainant. The&nbsp; facts of each case has to be taken note of while considering the matter. The Apex Court with regard to considering the factual aspects in other judgments which have been referred by the learned counsel for the respondent Nos.2 and 3 also comes to a conclusion that even though there was a civil suit between the parties, the parties who indulge in such acts cannot be scot free. Otherwise, it would be an easy way out for the accused to avoid the criminal proceedings</b>. This Court in respect of accused No.2 also after filing of the charge-sheet dismissed the petition filed under Section 482 of Cr.P.C. and made an observation that he can make necessary application before the Trial Court for discharge.<br>12. Having considered the factual aspects of the case and <b>the allegations made in the complaint as well as in the charge-sheet, serious question of issues are between the parties and hence this Court cannot invoke Section 482 of Cr.P.C. If it is invoked, it amounts to interfering and stalling the proceedings when serious allegation of forgery is made.</b> The Apex Court in the judgment in the case of <i>Dineshbhai Chandubhai Patel vs The State of Gujarat reported in 2018 (3) SCC 104</i> has categorically held that if the material is collected by the Investigating Officer and the Court has taken the cognizance,&nbsp; the Court has to look into the prima facie material available on record whether the same discloses commission of any cognizable offence and under such circumstances, it should stay its hands and should not act like an Investigating Officer and probe into the material available on record considering the evidence. Hence, I do not find any merit in the petition to invoke Section 482 of Cr.P.C. Petition dismissed.&nbsp;<br><br></h4><p><br></p>', '33734444eb4bf73cf114dc0656fe9129.jpeg', 'd893e1432d80f04b67e61c92aed8568d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-30', 1, '', '', '2021-01-30 04:36:12', '2023-01-30 10:43:17'),
(392, '6turbDz0pvtEF42FzWidmXzqZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Second enquiry cannot be ordered simply on the ground that the disciplinary authority does not accept the first enquiry report. Karnataka High Court.', '<h4>B.S.Ramaswamy vs State of Karnataka and Others. Writ Petition 5838/2020 decided on 13 January 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/361305/1/WP5838-20-13-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/361305/1/WP5838-20-13-01-2021.pdf</a><br><b>12.</b> The proceedings which are directed to be initiated pursuant to the order of denovo enquiry are vitiated on two settled principles of law, first being, conduct of a denovo enquiry by a different Enquiry Officer merely because the Disciplinary Authority does not accept the findings of the Enquiry Officer in the light of the law laid down by the Apex Court in the case of <i><b>K.R. Deb v. CCE reported in (1971) 2 SCC 102 </b></i>wherein it is held as follows:<br><i>“12. It seems to us that Rule 15, on the face of it, really provides for one&nbsp; inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.”</i><br>Later, the Apex Court following the afore-extracted judgment in the case of <i><b>Vijay Shankar Pandey v. Union of India reported in (2014) 10 SCC 589,</b></i> has held as follows:<br><i>“24. Be that as it may, the question is whether the disciplinary authority could have resorted to such a practice of abandoning the enquiry already undertaken and resort to appointment of a fresh enquiring authority (multi-member)? The issue is not really whether the enquiring authority should be a single member or a multi-member body, but whether a second inquiry such as the one under challenge is permissible. A Constitution Bench of this Court in <b>K.R. Deb v. CCE [K.R. Deb v. CCE, (1971) 2 SCC 102] ,</b> examined the question in the context of Rule 15(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. It was a case where an enquiry was ordered against a Sub- Inspector, Central Excise (the appellant before this Court). The enquiry officer held that the charge was not proved. Thereafter the disciplinary authority appointed another enquiry officer “to conduct a supplementary open inquiry”. Such supplementary inquiry was conducted and a report that there was “no conclusive proof” to “establish the charge” was made. Not satisfied, the disciplinary authority thought it fit that “another enquiry officer should be appointed to inquire afresh into the charge”.</i><br>25.<b> </b>The&nbsp; Court&nbsp; in <b><i>K.R.&nbsp; &nbsp;Deb [K.R. Deb v. CCE, (1971) 2 SCC 102]</i></b> held that: (SCC p. 105, paras 12-13)&nbsp;<br><i>“12. It seems to us that Rule 15, on the<span style=\"white-space:pre\">	</span>face<span style=\"white-space:pre\">	</span>of<span style=\"white-space:pre\">	</span>it,<span style=\"white-space:pre\">	</span>really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the disciplinary authority may ask the enquiry officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the inquiring officer or officers does not appeal to the disciplinary authority. The disciplinary authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.</i><br><i>13. In our view the Rules do not contemplate an action such as was taken by the Collector on 13-2-1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the Rules but was harassing to the appellant.”<br>26<b>.</b> It can be seen from the above that the normal rule is that there can be only one enquiry. This Court has also recognised the possibility of a further enquiry in certain<span style=\"white-space:pre\">	</span>circumstances enumerated therein. The decision however makes it clear that the fact that the report submitted by the enquiring authority<span style=\"white-space:pre\">	</span>is not acceptable to the disciplinary authority, is not a ground for completely setting aside the enquiry report and ordering a second enquiry.”</i><br>Therefore,<span style=\"white-space:pre\">	</span>the<span style=\"white-space:pre\">	</span>act<span style=\"white-space:pre\">	</span>of the<span style=\"white-space:pre\">	</span>Disciplinary Authority in directing conduct of a denovo enquiry because the authority did not accept the findings of the Enquiry Officer, is vitiated on account of the law laid down by the Apex Court in the afore-extracted cases qua the facts obtaining in the case at hand.</h4><p><br></p>', '2a454f292f78b5e2cf3f26ee5465f95b.jpg', '86ffc04e70d5e1b7ff560e597acfef9c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-13', 1, '', '', '2021-01-31 01:23:54', '2021-01-31 01:23:54'),
(393, 'WThbtUuInjYZrKU5xwMADiwp3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Dispute regarding signature on the cheque. Court can obtain expert opinion. Karnataka High Court ', '<h4><b>Basanagouda vs Shashikant. Criminal Petition 102726/2017 decided on 13 January 2021.</b></h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/361627/1/CRLP102726-17-13-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/361627/1/CRLP102726-17-13-01-2021.pdf</a><br><b>Relevant paragraphs:</b> <b>6. </b>There cannot be any dispute about the fact that the accused – respondent herein has not, in&nbsp; essence, denied the loan transaction between the parties. The only point of dispute is as to&nbsp; whether the loan transaction was to&nbsp; the&nbsp; tune&nbsp; of&nbsp; Rs.2 ,80,000/-&nbsp; or&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;tune&nbsp; &nbsp;of Rs.40 ,000/-.The further dispute is as to whether, if the&nbsp; loan transaction was in the tune of Rs.40,000 /- it was repaid by the accused in terms of Ex.D.1 , as contended by him before the learned Court below. Ex. P.8 which is a&nbsp; reply notice issued by the accused –&nbsp; respondent&nbsp; shows that he has taken that stance even at the time of issuing reply that loan transaction was essentially to the tune of Rs.40 ,000/- and had repaid it.<br><b>7.</b> The&nbsp; application&nbsp; filed&nbsp; by&nbsp; the&nbsp; &nbsp;complainant&nbsp; in&nbsp; I. A.No.1 is to refer Ex.D.1 for the purpose of eliciting opinion of expert as to whether disputed signature on Ex.D.1 is that of the&nbsp; complainant or&nbsp; not.&nbsp; Clear stand of the complainant is&nbsp; that he&nbsp; had not signed Ex.D.1 and it is a created document. Learned trial Court has rejected pplication merely on the ground that in&nbsp; order&nbsp; to ascertain as to whether Ex. D.1 is a genuine document, there is the oral evidence of P.W.1&nbsp; who&nbsp; is&nbsp; the complainant, on the one side, and the oral evidence of accused (D.W.1 ) and D.W.2 who is stated to be&nbsp; the attestor to Ex.D. 1. Learned trial Court has also held that, apart from the above evidence, it is open to himself ( trial Court) to exercise the power under Section 73 of the Evidence Act and collect sample signatures of the complainant in the Court and compare the same with the disputed signature and form an opinion as to whether it is really the signature of the complainant or not. In my considered opinion, the said exercise of the learned trial Court will not be affected if an expert opinion is sought on the signature that is borne on Ex. D.1 by referring the said document to the examination by expert, along with his admitted and sample signatures. As a matter of fact, the entire case turns on the finding by the trial Court as to whether the signature appearing on Ex.D.1 is that of the complainant or not. Under such circumstances, it is essential that the best and the complete evidence on the aspect as to whether the signature on Ex. D.1 is really that of the complainant or not is obtained by the trial Court. Such an exercise in terms&nbsp; of&nbsp; referring&nbsp; the&nbsp; document to the examination of an expert will not deprive the accused&nbsp; &nbsp;of the opportunity to cross examine such an expert, when the opinion of the expert is obtained and&nbsp; placed&nbsp; before&nbsp; the Court. This view of mine receives support from the following observation of the Hon’ ble Supreme Court in the case of <b><i>AIR 2012 SCW 5492 – Ajay Kumar Parmar Vs State of Rajasthan&nbsp;</i></b>which is as follows;<br><i><b>“23. The opinion of a handwriting expert is fallible/ liable to error like that of any other witness, and yet, it cannot be brushed aside as useless. There is no legal bar to prevent the Court from comparing signatures or handwriting, by using its own eyes to compare the disputed writing with the admitted writing and then from applying its own observation to prove the said handwritings to be the same or different, as the case may be but in doing so, the court cannot itself become an expert in&nbsp; this&nbsp; regard and must refrain from playing the role of an expert, for the simple reason that the opinion of the Court may also not be conclusive. Therefore, when the court takes such a task upon itself, and findings are recorded solely on the basis of&nbsp; comparison&nbsp; of signatures or handwritings, the&nbsp; court must keep in mind the risk involved, as the opinion formed by the Court may not be conclusive and is susceptible to error, especially when the exercise is conducted by one, not conversant with the subject. The court, therefore, as a matter&nbsp; of&nbsp; prudence and caution should hesitate or be slow to base its findings solely upon the comparison made by it. However, where there is an opinion whether of an expert, or of any witness, the court may then apply its own observation by comparing the signatures, or handwritings for providing a decisive weight or influence to its decision.”</b></i><br><b style=\"background-color: rgb(255, 255, 0);\">8. Therefore, I am of the considered opinion that learned trial Court was not right in rejecting the&nbsp; application I. A.No.1 filed under Section 45 of the Evidence Act. Accordingly, the said order is liable to be set aside.</b></h4><div><br></div>', '3bf95f5c7554142231dd457177e641db.jpg', 'fd82893499aae738ac0ffc7b3e758087.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-13', 1, '', '', '2021-01-31 01:59:24', '2021-01-31 01:59:24'),
(394, 'isQftx9JzgZbZduMJQvauppfC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Judgment of larger bench. Separate concurring  judgment cannot be treated as fractured opinion. It is the law laid down by the bench.  Karnataka High Court. ', '<h4>M/s. JSW Steel Limited vs Mysore Minerals Limited. Writ Petition 15190/2020 decided on 13 January 2021.<br>Judgment Link:<br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/359218/1/WP15190-20-13-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/359218/1/WP15190-20-13-01-2021.pdf</a><br><b>D.As to whether observation of one of  the judges becomes ratio of the Bench:</b><br>(a) Learned Sr. Advocate Mr.Srinivas Raghavan representing the respondent contends that what is stated above is the view of merely one of the three judges comprising the said Bench of  the  Apex  Court  and therefore, needs to be examined as to whether it has precedential value; he highlights what is in the brackets as “(partly supplementing and partly dissenting)” appearing immediately below para 22 of the reported decision in KALRA supra; Mr.K.G. Raghavan appearing for the petitioner at once points out that it is only the comment of the editor of the law report and not of the judge himself,and therefore, one shall not be swayed away, thereby; it is true that such editorial comments are insignificant and at times, misleading, in ascertaining the ratio of judgments, especially when the Bench is made  up  of  plural  judges,  and<br><b>(b) The ratio decidendi of a judgment needs to be mined by employing standard techniques such as Wambaught’s Test, Dr. Goodheart’s Method, Dr. Upendra Baxi’s Method or the like vide Rupert Cross’s ‘PRECEDENT IN ENGLISH LAW’ – 3rd Edn. at pages 53 & 66; ordinarily, when one of the plural Judges comprising the Bench of a constitutional court makes a normative statement on the basis of the same fact matrix which  other  partner  judges too consider relevant, such statement needs to be treated as the law laid down by  the Bench as a monolith, and  not  as a fractured opinion, unless the partner judges observe something that has the effect of diminishing  its  precedential force; </b>in Kalra Case supra the  Bench comprised of three judges, and there is a set of two judgments; one is rendered by two judges and the other separate judgment is rendered by one judge; a careful perusal of both the judgments shows that what is statedby one of the judges in his separate judgment, is not inconsistent with what is stated by the other two judges in common; the third judge has given a wider exposition of  law stated by the other two by superadding the reasons; there is nothing in the two member judgment with which  the other judgment stands in repugnancy.</h4><p><br></p>', '6db81dac59e9ac9b5aa39d374a4db8ad.jpg', '7935ba397ecb3db3d0cf9abc78d886b1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-13', 1, '', '', '2021-01-31 06:21:09', '2021-01-31 06:27:36'),
(395, 'sooBypgPKSekZ2bnXaqkc1uGD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Payment of Gratuity Act 1972. Teachers are employees under the Act and are eligible for gratuity retrospectively with effect from 3 April 1997. Supreme Court', '<h4><b>Birla Institute of Technology v. State of Jharkhand, (2019) 4 SCC 513. Civil Appeal No. 2530 of 2012 decided on March 7, 2019</b></h4><h4><b>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2008/11160/11160_2008_Judgement_07-Mar-2019.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2008/11160/11160_2008_Judgement_07-Mar-2019.pdf</a></b><br><b>Relevant paragraphs: 18. </b>As mentioned above, the issue in question was subject-matter of the decision rendered in <i><b>Ahmedabad Private Primary Teachers’ Assn. v. Administrative Officer, (2004) 1 SCC 755. </b></i>This Court had examined the question in the light of the definition of the word “employee” defined in Section 2(e) of the Act as it stood then. The definition reads as under: (SCC p. 758, para 2)<br><i>“2. 2. (e) ‘employee’ means any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity.”</i><br><b>19.</b> This is what was held in paras 22 to 26 of the decision: (Ahmedabad Private Primary Teachers’ Assn. case2, pp. 764-65)<br><i>“22. In construing the abovementioned three words which are used in association with each other, the rule of construction noscitur a sociis may be applied. The meaning of each of these words is to be understood by the company it keeps. It is a legitimate rule of construction to construe words in an Act of Parliament with reference to words found in immediate connection with them. The actual order of these three words in juxtaposition indicates that meaning of one takes colour from the other. The rule is explained differently: “that meaning of doubtful words may be ascertained by reference to the meaning of words associated with it”. [See Principles of Statutory Interpretation by Justice G.P. Singh, 8th Edn., Syn. 8, at p. 379.]<br>23. The word “unskilled” is opposite of the word “skilled” and the word “semi-skilled” seems to describe a person who falls between the two categories i.e. he is not fully skilled and also is not completely unskilled but has some amount of skill for the work for which he is employed. The word “unskilled” cannot, therefore, be understood dissociated from the word “skilled” and “semi-skilled” to read and construe it to include in it all categories of employees irrespective of the nature of employment. If the legislature intended to cover all categories of employees for extending benefit of gratuity under the Act, specific mention of categories of employment in the definition clause was not necessary at all. Any construction of definition clause which renders it superfluous or otiose has to be avoided.<br>24. The contention advanced that teachers should be treated as included in the expression “unskilled” or “skilled” cannot, therefore, be accepted. The teachers might have been imparted training for teaching or there may be cases where teachers who are employed in primary schools are untrained. A trained teacher is not described in the industrial field or service jurisprudence as a “skilled employee”. Such adjective generally is used for an employee doing manual or technical work. Similarly, the words “semi-skilled” and “unskilled” are not understood in educational establishments as describing nature of job of untrained teachers. We do not attach much importance to the arguments advanced on the question as to whether “skilled”, “semi-skilled” and “unskilled” qualify the words “manual”, “supervisory”, “technical” or “clerical” or the above words qualify the word “work”. Even if all the words are read disjunctively or in any other manner, trained or untrained teachers do not plainly answer any of the descriptions of the nature of various employments given in the definition clause. Trained or untrained teachers are not “skilled”, “semi-skilled”, “unskilled”, “manual”, “supervisory”, “technical” or “clerical” employees. They are also not employed in “managerial” or “administrative” capacity. Occasionally, even if they do some administrative work as part of their duty with teaching, since their main job is imparting education, they cannot be held employed in “managerial” or “administrative” capacity. The teachers are clearly not intended to be covered by the definition of “employee”.<br>25. The legislature was alive to various kinds of definitions of the word “employee” contained in various previous labour enactments when the Act was passed in 1972. If it intended to cover in the definition of “employee” all kinds of employees, it could have as well used such wide language as is contained in Section 2(f) of the Employees’ Provident Funds Act, 1952&nbsp; which defines “employee” to mean ‘any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment …’. Non-use of such wide language in the definition of “employee” in Section 2(e) of the Act of 1972 reinforces our conclusion that teachers are clearly not covered in the definition.<br>26. Our conclusion should not be misunderstood that teachers although engaged in a very noble profession of educating our young generation should not be given any gratuity benefit. There are already in several States separate statutes, rules and regulations granting gratuity benefits to teachers in educational institutions which are more or less beneficial than the gratuity benefits provided under the Act. It is for the legislature to take cognizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject-matter solely of the legislature to consider and decide.”</i><br><b>20. </b>The decision rendered in Ahmedabad Private Primary Teachers’ Assn.2, therefore, led Parliament to amend the definition of “employee” as defined in Section 2(e) of the Payment of Gratuity Act by Amending Act 47 of 2009 on 31-12-2009 with retrospective effect from 3-4-1997.<br><b>21.</b> It is clear from the Statement of Objects and Reasons of the Payment of Gratuity (Amendment) Bill, 2009 introduced in the Lok Sabha on 24-2-2009 which reads;<br><i>“Statement of Objects and Reasons<br>The Payment of Gratuity Act, 1972 provides for payment of gratuity to employees engaged in factories, mines, oilfields, plantations, ports, railway companies, shops or other establishment and for matters connected therewith or incidental thereto. Clause (c) of sub-section (3) of Section 1 of the said Act empowers the Central Government to apply the provisions of the said Act by notification in the Official Gazette to such other establishments or class of establishments in which ten or more employees are employed, or were employed, on any day preceding twelve months. Accordingly, the Central Government had extended the provisions of the said Act to the educational institutions employing ten or more persons by notification of the Government of India in the Ministry of Labour and Employment vide number S.O. 1080, dated 3-4-1997.<br>2. The Hon’ble Supreme Court in its judgment in Ahmedabad Private Primary Teachers’ Assn. v. Administrative Officer2 had held that if it was extended to cover in the definition of ‘employee’, all kind of employees, it could have as well used such wide language as is contained in clause (f) of Section 2 of the Employees’ Provident Funds and Miscellaneous&nbsp; Provisions Act, 1952 which defines ‘employee’ to mean any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment. It had been held that non-use of such wide language in the definition of ‘employee’ under clause (e) of Section 2 of the Payment of Gratuity Act, 1972 reinforces the conclusion that teachers are clearly not covered in the said definition.<br>3. Keeping in view the observations of the Hon’ble Supreme Court, it is proposed to widen the definition of ‘employee’ under the said Act in order to extend the benefit of gratuity to the teachers. Accordingly, the Payment of Gratuity (Amendment) Bill, 2007 was introduced in Lok Sabha on 26-11-2007 and same was referred to the Standing Committee on Labour which made certain recommendations. After examining those recommendations, it was decided to give effect to the amendment retrospectively with effect from 3-4-1997, the date on which the provisions of the said Act were made applicable to educational institutions.<br>4. Accordingly, the Payment of Gratuity (Amendment) Bill, 2007 was withdrawn and a new Bill, namely, this Payment of Gratuity (Amendment) Bill, 2009 having retrospective effect was introduced in the Lok Sabha on 24-2-2009. However, due to dissolution of the Fourteenth Lok Sabha, the said Bill lapsed. In view of the above, it is considered necessary to bring the present Bill.<br>5. The Bill seeks to achieve the above objectives.<br>New Delhi;<br>The 12-11-2009.”</i><br><b>22.</b> The definition of “employee” as defined under Section 2(e) was accordingly amended with effect from 3-4-1997 retrospectively vide Payment of the Gratuity (Amendment) Act, 2009 (47 of 2009) published on 31-12-2009. The amended definition reads as under:<br><i>“2. (e) “employee” means any person (other than an apprentice) who is employed for wages, whether the terms of such employment are express or implied, in any kind of work, manual or otherwise, in or in connection with the work of a factory, mine, oilfield, plantation, port, railway company, shop or other establishment to which this Act applies, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity.”</i><br><b style=\"background-color: rgb(255, 255, 0);\">23. In the light of the amendment made in the definition of the word “employee” as defined in Section 2(e) of the Act by Amending Act 47 of 2009 with retrospective effect from 3-4-1997, the benefit of the Payment of Gratuity Act was also extended to the teachers from 3-4-1997. In other words, the teachers were brought within the purview of “employee” as defined in Section 2(e) of the Payment of Gratuity Act by Amending Act 47 of 2009 with retrospective effect from 3:4:1997.</b><br><b>24.</b> The effect of the amendment made in the Payment of Gratuity Act vide Amending Act 47 of 2009 on 31-12-2009 was twofold. First, the law laid down by this Court in Ahmedabad Private Primary Teachers’ Assn.2 was no longer applicable against the teachers, as if not rendered, and second, the teachers were held entitled to claim the amount of gratuity under the Payment of Gratuity Act from their employer with effect from 3-4-1997.<br><b>25. </b>In our considered opinion, in the light of the amendment made in the Payment of Gratuity Act as detailed above, reliance placed by the learned counsel appearing for the appellant (employer) on the decision of Ahmedabad Private Primary Teachers’ Assn.2 is wholly misplaced and does not help the appellant in any manner. It has lost its binding effect.<br>26. Learned counsel for the appellant then urged that the constitutional validity of Amending Act 47 of 2009 is under challenge in this Court in a writ petition, which is pending. Be that as it may, in our view, pendency of any writ petition by itself does not affect the constitutionality of the Amending Act, and nor does it affect the right of Respondent 4 (teacher) in any manner in claiming gratuity amount from the appellant (employer) under the Act.<br><b>27.</b> It is only when the Court declares a statute as being ultra vires the provisions of the Constitution then the question may arise to consider its effect on the rights of the parties and that would always depend upon the declaration rendered by the Court and the directions given in that case. Such is not the case here as of now.<br></h4><p><br></p>', '063015b79e250f4d71e34117529bc895.jpg', 'eb085b4398df09bedf74b360f350aa2b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-03-07', 1, '', '', '2021-01-31 17:16:21', '2021-01-31 17:21:48'),
(396, 'zPpmLHjCOmyK0UJDsuNnxox7o', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Advocates Act 1961. Advocate buying property under litigation from his client and selling at a higher price. He became part of the litigation. Such conduct is a clear professional misconduct. Supreme Court.  ', '<h4><b>P.D.Gupta vs Ram Murti and another. Civil Appeal 15496/1996 decided on 8 July 1997. Reported in (1997) 7 SCC 147. </b></h4><h4><b>Judgment Link</b>: <a href=\"https://main.sci.gov.in/jonew/judis/13956.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/13956.pdf</a><br><b>Relevant paragraphs 4. </b>It is not for us to go into the merits or demerits of the controversy raised by the parties in various proceedings pending in the courts and still awaiting adjudication, the grievance of the complainant is as to how an advocate could purchase property from his client which property is the subject-matter of dispute between the parties in a court of law. During the course of hearing of this appeal it was also brought to our notice that the second floor of the property bearing No. 4858-A, 24 Daryaganj was purchased by Suresh Kumar Gupta, son-in-law of Advocate P.D. Gupta from Vidya Wati. Then again it was brought to our notice that Advocate P.D. Gupta sold the property purchased by him in November 1987 for a consideration of Rs 3,40,000 when he himself had purchased the property for Rs 1,80,000 in December 1982. It is pointed out that the facts relating to purchase of different portions of property No. 4858-A, 24 Daryaganj and subsequent sale by P.D. Gupta were not brought on record of the said suit filed by Vidya Wati.<br><b>8. </b>We examined the two sale deeds transferring this property, one executed in favour of P.D. Gupta and the other in favour of his son-in-law Suresh Kumar Gupta and we have also examined the proceedings on the basis of which the Bar Council of India came to the conclusion that P.D. Gupta was guilty of misconduct and he be debarred from practising for the period of one year. <br><b>10.</b> The Bar Council of India has taken note of the following facts:<br><i>1. P.D. Gupta claims to know Vidya Wati since 1980 when Srikishan Dass was alive. He knew Vidya Wati closely and yet contradictory stands were taken by Vidya Wati when she varyingly described herself as half-blood sister, real sister or stepsister of Srikishan Dass. These contradictory stands in fact cast doubt on the very existence of Vidya Wati herself. This also created doubt about bona fides of P.D. Gupta who seemed to be a family lawyer of Vidya Wati.<br>2. P.D. Gupta knew that the property purchased by him from Vidya Wati was the subject-matter of litigation and title of Vidya Wati to that property was in doubt.<br>3. Huge property situated in Daryaganj was purchased by P.D. Gupta for a mere sum of Rs 1,80,000 in 1982.<br>4. The agreement for sale of property was entered into as far back on 3-9-1980 and P.D. Gupta had been advancing money to Vidya Wati from time to time which went to show that as per the version of P.D. Gupta he knew Vidya Wati quite well. When P.D. Gupta knew Vidya Wati so closely how could Vidya Wati take contradictory stands vis-à-vis her relationship with Srikishan Dass?</i><br><b>11.</b> The Bar Council of India was thus of the view that the conduct of P.D. Gupta in the circumstances was unbecoming of professional ethics and conduct. The Bar Council of India also observed:<br><i>“It is an acknowledged fact that a lawyer conducting the case of his client has a commanding status and can exert influence on his client. As a member of the Bar it is in our common knowledge that lawyers have started contracting with the clients and enter into bargains that in case of success he will share the result. A number of instances have been found in the cases of Motor Accident Claims. No doubt there is no bar for a lawyer to purchase property but on account of common prudence specially a law-knowing person will never prefer to purchase the property, the title of which is under doubt.”</i><br>Finally it said:<br><i>“But for the purpose of the present complaint, having regard to all the facts and circumstances of the case, the Committee is of the opinion that the conduct of the respondent is patently unbecoming of a lawyer and against professional ethics. Consequently, we feel that as an exemplary punishment, Shri P.D. Gupta should be suspended from practice for a period of one year so that other erring lawyers should learn a lesson and refrain themselves from indulging in such practice.”</i><br><b style=\"background-color: rgb(255, 255, 0);\">12. The question which arises for consideration is: In view of the aforementioned facts is P.D. Gupta guilty of professional or other misconduct and if so is the punishment awarded to him disproportionate to the professional or other misconduct of which he has been found guilty?</b><br><b>14. </b>There appears to be no substance in the submissions of Mr Jain. P.D. Gupta was fully aware of the allegations he was to meet. It was not a complicated charge. He has been sufficiently long in practice. The argument that a charge had not been formulated appears to be more out of the discontentment of P.D. Gupta in being unable to meet the allegation. Now, P.D. Gupta says that he has washed his hands off the property and thus he is not guilty of any misconduct. That is not the issue. It is his conduct in  buying the property, the subject-matter of litigation between the parties, from his client on which he could exercise undue influence especially when there was a doubt cast on his client’s title to the property. Had P.D. Gupta sold the property back to Vidya Wati and got the sale deed in his favour cancelled something could have been said in his favour. But that is not so. He sold the property to a third person, made profit and created more complications in the pending suit. P.D. Gupta purchased the properties which were the subject-matter of the dispute for himself and also for his son-in-law at almost throw-away prices and thus he himself became a party to the litigation. The conduct of P.D. Gupta cannot be said to be above board. It is not material that Vidya Wati or anyone claiming through her has not complained against him. <b style=\"background-color: rgb(255, 255, 0);\">We are concerned with the professional conduct of P.D. Gupta as a lawyer conducting the case for his client. A lawyer owes a duty to be fair not only to his client but also to the court as well as to the opposite party in the conduct of the case. Administration of justice is a stream which has to be kept pure and clean. It has to be kept unpolluted. Administration of justice is not something which concerns the Bench only. It concerns the Bar as well. The Bar is the principal ground for recruiting Judges. No one should be able to raise a finger about the conduct of a lawyer. While conducting the case he functions as an officer of the court. </b>Here, P.D. Gupta in buying the property has in effect subverted the process of justice. His action has raised serious questions about his fairness in the conduct of the trial touching his professional conduct as an advocate. By his action he has brought the process of administration of justice into disrepute.<br><b style=\"background-color: rgb(255, 255, 0);\">15. The Bar Council of India and the State Bar Councils are statutory bodies under the Act. These bodies perform varying functions under the Act and the rules framed thereunder. The Bar Council of India has laid standards of professional conduct for the members. The code of conduct in the circumstances can never be exhaustive. The Bar Council of India and the State Bar Councils are representative bodies of the advocates on their rolls and are charged with the responsibility of maintaining discipline amongst members and punishing those who go astray from the path of rectitude set out for them. In the present case the Bar Council of India, through its Disciplinary Committee, has considered all the relevant circumstances and has come to the conclusion that P.D. Gupta, Advocate is guilty of misconduct and we see no reason to take a different view</b>. We also find no ground to interfere with the punishment awarded to P.D. Gupta in the circumstances of the case.<br><b>16.</b> The charge of professional or other misconduct by an advocate is a serious matter and has to be considered and disposed of by the Disciplinary Committee of a State Bar Council expeditiously and within a period of one year. We are unable to comprehend as to why the Disciplinary Committee of the Delhi Bar Council could not dispose of the matter within the prescribed time-frame and it was left to the apex body to deal with it.<br><b>17. </b>The appeal is dismissed. No order as to costs.<br></h4><p><br></p>', '692a565b0844b2f82001060ef45555ad.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-23', 1, '', '', '2021-01-31 19:19:17', '2022-12-23 16:17:20');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(401, 'e2btanncx8wuiBllNmb6feTLp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Environment pollution. A government official has to be more circumspect in adhering to the pollution control laws than a private individual. Karnataka High Court refuses to quash criminal proceedings against government employee. ', '<h4><b>G.T.Hanumantharaju vs Karnataka State Pollution Control Board. Criminal Petition 1254/2017 decided on 24 June 2020</b><br>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/334883/1/CRLP1254-17-24-06-2020.pdf\" target=\"_blank\"><b>http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/334883/1/CRLP1254-17-24-06-2020.pdf</b></a><br><b>Relevant paragraphs: 10</b>. A perusal of the Section 48 of the Act  would  indicate that where an offence under the Act has been committed by any Government department, the head of the department shall be deemed to be guilty of the offence and shall be liable to be proceeded with against and punished accordingly. However, he shall not be rendered liable for any punishment, if he proves that the offence was committed without his knowledge or he exercised due diligence to prevent the commission of such offence.  In the present case, it is not in dispute  that the petitioner was the Chief Officer of the Town Municipal Council as on the date that the offence is alleged to have been taken place. Therefore, the filing of the proceedings against the petitioner cannot be faulted with, particularly, in the light of Section 48 of the Act. The defence available to the petitioner is that he was not aware of the commission of the offence or the offence occurred despite due diligence exercised by the accused, which would have to be established during course   of the trial. It is for the petitioner to establish that  he had taken all steps and action required to obtained concerned from KSPCB, despite which he could not so obtain it. As regards the contention  that the establishment of the STP (Sewage Treatment Plant) or ETP (Effluent Treatment Plant) and obtaining of consent is  a  collective responsibility of the Karnataka Urban Water Supply and Drainage Board (KUWSDB), Bangalore Water Supply and Sewerage Board (BWSSB), Urban Local Bodies and as such the  Municipal  Commissioner, the Secretary of Forest Ecology and Environment Department, Project Director, District Urban Development Cell (DUDC), Chitradurga, the Deputy Commissioner, Chitradurga, the Commissioner and Director Municipal Administration, Bangalore  and the Chief Secretary, Government of Karnataka, etc., were also responsible and as such the petitioner could not be singled out, it is for the petitioner to establish during the course of trial what communications he had addressed to the above officers and the inaction on their part, so as to absolve the petitions of  his liability, the  court may in such circumstance seek for investigation to add any other person responsible for the offence as an accused in the proceedings.<br><b style=\"background-color: rgb(255, 255, 0);\">15. On perusal of the complaint it indicates that as far back as the year 2009, the consent for discharge of effluent of sewage was refused. Subsequently, the same was followed up consistent refusal over six times for the years 2010, 2011, 2012, 2013, 2014 and 2015, that is to say on six occasions when the consent for discharge was refused, the Municipal Council could not have discharged the effluent or sewage without such consent. The laws relating to prevention of pollution apply equally to a government department as that to a private party.  A government servant cannot seek to justify his action of carrying out pollution, on technical grounds, a government official has to be more circumspect in adhering to the pollution control laws than a private individual/entity.</b></h4><h4><b style=\"background-color: rgb(255, 255, 0);\"><br>Petition to quash proceedings rejected. <br> </b><br><br><br><br></h4><p><br></p>', 'b939f37d4286dd8cf26d608d7e48af6c.jpg', '51bfe84ce0e4688896c15d9d616c986e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-06-24', 1, '', '', '2021-02-01 00:55:47', '2021-02-01 02:56:37'),
(402, '1PhvHxxrVFJMSM66g2Hv8duL7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sankari Prasad Singh Deo vs Union of India. AIR 1951 SC 458', '<h4><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\"><b>In the Supreme Court of India</b></span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\"><b>Sankari Prasad Singh Deo v. Union of India</b></span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\"><b>Chief Justice Hiralal Kania, Justice M. Patanjali Sastri, Justice B.K   Mukherjea, Justice Sudhi Ranjan Das, Justice Chandrasekhara Aiyar N.   </b></span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\"><b>1952 SCR 89: AIR 1951 SC 458</b></span></div>JUSTICE M. PATANJALI SASTRI, J.— These petitions, which have been heard together, raise the common question whether the Constitution (First Amendment) Act, 1951, which was recently passed by the present provisional Parliament and purports to insert, inter alia, articles 31A and 31B in the Constitution of India is ultra vires and unconstitutional.<br>2. What led to that enactment is a matter of common knowledge. The political party now in power, commanding as it does a majority of votes in the several State legislatures as well as in Parliament, carried out certain measures of agrarian reform in Bihar, Uttar Pradesh and Madhya Pradesh by enacting legislation which may compendiously be referred to as Zemindary Abolition Acts. Certain zemindars, feeling themselves aggrieved, attacked the validity of those Acts in courts of law on the ground that they contravened the fundamental rights conferred on them by Part III of the Constitution. The High Court at Patna held that the Act passed in Bihar was unconstitutional while the High Courts at Allahabad and Nagpur upheld the validity of the corresponding legislation in Uttar Pradesh and Madhya Pradesh respectively. Appeals from those decisions are pending in this Court. Petitions filed in this Court by some other zemindars seeking the determination of the same question are also pending. At this stage, the Union Government, with a view to put an end to all this litigation and to remedy what they considered to be certain defects brought to light in the working of the Constitution, brought forward a bill to amend the Constitution, which, after undergoing amendments in various particulars, was passed by the requisite majority as the Constitution (First Amendment) Act, 1951, (hereinafter referred to as the Amendment Act). Swiftly reacting to this move of the Government, the zemindars have brought the present petitions under article 32 of the Constitution impugning the Amendment Act itself as unconstitutional and void.<br>3. The main arguments advanced in support of the petitions may be summarised as follows:<br>First, the power of amending the Constitution provided for under article 368 was conferred not on Parliament but on the two Houses of Parliament as a designated body and, therefore, the provisional Parliament was not competent to exercise that power under article 379.<br>Secondly, assuming that the power was conferred on Parliament, it did not devolve on the provisional Parliament by virtue of article 379 as the words “All the powers conferred by the provisions of this Constitution on Parliament” could refer only to such powers as are capable of being exercised by the provisional Parliament consisting of a single chamber. The power conferred by article 368 calls for the co-operative action of two Houses of Parliament and could be appropriately exercised only by the Parliament to be duly constituted under Ch. 2 of Part V.<br>Thirdly, the Constitution (Removal of Difficulties) Order No. 2 made by the President on 26th January 1950, in so far as it purports to adapt article 368 by omitting “either House of” and “in each House” and substituting “Parliament” for “that House”, is beyond the powers conferred on him by article 392, as “any difficulties” sought to be removed by adaptation under that article must be difficulties in the actual working of the Constitution during the transitional period whose removal is necessary for carrying on the Government. No such difficulty could possibly have been experienced on the very date of the commencement of the Constitution.<br>Fourthly, in any case article 368 is a complete code in itself and does not provide for any amendment being made in the bill after it has been introduced in the House. The bill in the present case having been admittedly amended in several particulars during its passage through the House, the Amendment Act cannot be said to have been passed in conformity with the procedure prescribed in article 368.<br>Fifthly, the Amendment Act, in so far as it purports to take away or abridge the rights conferred by Part III of the Constitution, falls within the prohibition of article 13(2).<br>And lastly, as the newly inserted articles 31A and 31B seek to make changes in articles 132 and 136 in Chapter IV of Part V and article 226 in Chapter V of Part VI, they require ratification under clause (b) of the proviso to article 368, and not having been so ratified, they are void and unconstitutional. They are also ultra vires as they relate to matters enumerated in List II, with respect to which the State legislatures and not Parliament have the power to make laws.<br>4. Before dealing with these points it will be convenient to set out here the material portions of articles 368, 379 and 392, on the true construction of which these arguments have largely turned.<br>“368. An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House/by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill:<br>Provided that if such amendment seeks to make any change in—<br>(a) articles 54, 55, 73, 162 or 241, or<br>(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or<br>(c) any of the Lists in the Seventh Schedule, or<br>(d) the representation of States in Parliament, or<br>(e) the provisions of this article,<br>the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States specified in Parts A and B of the First Schedule by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.<br>379. (1) Until both Houses of Parliament have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body functioning as the Constituent Assembly of the Dominion of India immediately before the commencement of this Constitution shall be the provisional Parliament and shall exercise all the powers and perform all the duties conferred by the provisions of this Constitution on Parliament.<br>392. (1) The President may, for the purpose of removing any difficulties, particularly in relation to the transition from the provisions of the Government of India Act, 1935, to the provisions of this Constitution, by order direct that this Constitution shall, during such period as may be specified in the order, have effect subject to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient:<br>Provided that no such order shall be made after the first meeting of Parliament duly constituted under Chapter II of Part V.<br>5. On the first point, it was submitted that whenever the Constitution sought to confer a power upon Parliament, it specifically mentioned “Parliament” as the donee of the power, as in articles 2, 3, 33, 34 and numerous other articles, but it deliberately avoided the use of that expression in article 368. Realising that the Constitution, as the fundamental law of the country, should not be liable to frequent changes according to the whim of party majorities, the framers placed special difficulties in the way of amending the Constitution and it was a part of that scheme to confer the power of amendment on a body other than the ordinary legislature, as was done by article 5 of the American Federal Constitution. We are unable to take that view. Various methods of constitutional amendment have been adopted in written constitutions, such as by referendum, by a special convention, by legislation under a special procedure, and so on. But, which of these methods the framers of the Indian Constitution have adopted must be ascertained from the relevant provisions of the Constitution itself without any leaning based on a priori grounds or the analogy of other constitutions in favour of one method in preference to another. We accordingly turn to the provisions dealing with constitutional amendments.<br>6. Now, the Constitution provides for three classes of amendments of its provisions. First, those that can be effected by a bare majority such as that required for the passing of any ordinary law. The amendments contemplated in articles 4, 169 and 240 fall within this class, and they are specifically excluded from the purview of article 368. Secondly, those that can be effected by a special majority as laid down in article 368. All constitutional amendments other than those referred to above come within this category and must be effected by a majority of the total membership of each House as well as by a majority of not less than two-thirds of the members of that House present and voting; and thirdly, those that require, in addition to the special majority above-mentioned, ratification by resolutions passed by not less than one-half of the States specified in Farts A and B of the First Schedule. This class comprises amendments which seek to make any change in the provisions referred to in the proviso to article 368. It will be seen that the power of effecting the first class of amendments is explicitly conferred on “Parliament”, that is to say, the two Houses of Parliament and the President (article 79). This would lead one to suppose, in the absence of a clear indication to the contrary, that the power of effecting the other two classes of amendments has also been conferred on the same body, namely, Parliament, for, the requirement of a different majority, which is merely procedural, can by itself be no reason for entrusting the power to a different body. An examination of the language used in article 368 confirms that view.<br>7. In the first place, it is provided that the amendment must be initiated by the introduction of a “bill in either House of Parliament”, a familiar feature of parliamentary procedure (of article 107(1) which says “A bill may originate in either House of Parliament”). Then, the bill must be “passed in each House”— just what Parliament does when it is called upon to exercise its norma) legislative function [article 107(2)]; and finally, the bill thus passed must be “presented to the President” for his “assent”, again a parliamentary process through which every bill must pass before it can reach the statute-book (article 111). We thus find that each of the component units of Parliament is to play its allotted part in bringing about an amendment to the Constitution. We have already seen that Parliament effects, amendments of the first class mentioned above by going through the same three-fold procedure but with a simple majority. The fact that a different majority in the same body is required for effecting the second and third categories of amendments cannot make the amending agency a different body. There is no force, therefore, in the suggestion that Parliament would have been referred to specifically if that body was intended to exercise the power. Having mentioned each House of Parliament and the President separately and assigned to each its appropriate part in bringing about constitutional changes, the makers of the Constitution presumably did not think it necessary to refer to the collective designation of the three units.<br>8. Apart from the intrinsic indications in article 368 referred to above, a convincing argument is to be found in articles 2, 3, 4, 169 and 240. As already stated, under these articles power is given to “Parliament” to make laws by a bare majority to amend certain parts of the Constitution; but in each case it is laid down that no such law should be deemed to be an amendment of the Constitution “for the purpose of article 368”. It would be quite unnecessary, and indeed inappropriate, to exclude these laws from the operation of article 368, which requires a special majority, if the power to amend under the latter article was not also given to Parliament.<br>9. Somewhat closely allied to the point discussed above is the objection based on the bill in the present case having been passed in an amended form, and not as originally introduced. It is not correct to say that article 368 is a “complete code” in respect of the procedure provided by it. There are gaps in the procedure as to how and after what notice a bill is to be introduced, how it is to be passed by each House and how the President\'s assent is to be obtained. Evidently, the rules made by each House under article 118 for regulating its procedure and the conduct of its business were intended, so far as may be, to be applicable. There was some discussion at the Bar as to whether the process of amending the Constitution was a legislative process. Petitioners\' counsel insisted that it was not, and that, therefore, the “legislative procedure” prescribed in article 107, which specifically provides for a bill being passed with amendments, was not applicable to a bill for amending the Constitution under article 368. The argument was further supported by pointing out that if amendment of such a bill were permissible, it must be open to either House to propose and pass amendments, and in case the two Houses failed to agree, the whole machinery of article 368 would be thrown out of gear, for the joint sitting of both Houses passing the bill by a simple majority provided for in article 108 in the case of ordinary bills would be inapplicable in view of the special majority required in article 368. The argument proceeds on a misconception. Assuming that amendment of the Constitution is not legislation even where it is carried out by the ordinary legislature by passing a bill introduced for the purpose and that articles 107 to 111 cannot in terms apply when Parliament is dealing with a bill under article 368, there is no obvious reason why Parliament should not adopt, on such occasions, its own normal procedure, so far as that procedure can be followed consistently with statutory requirements. Repelling the contention that a Local Government Board conducting a statutory enquiry should have been guided by the procedure of a court of justice, Lord Haldane observed in Local Government Board v. Arlidge [[1915] A.C. 120.] .<br>“Its (the Board\'s) character is that of an organisation with executive functions. In this it resembles other great departments of the State. When, therefore, Parliament entrusts it with judicial duties, Parliament must be taken, in the absence of any declaration to the contrary, to have intended to follow the procedure which is its own and is necessary if it is to be capable of doing its work efficiently.”<br>These observations have application here. Having provided for the constitution of a Parliament and prescribed a certain procedure for the conduct of its ordinary legislative business to be supplemented by rules made by each House (article 118), the makers of the Constitution must be taken to have intended Parliament to follow that procedure, so far as it may be applicable, consistently with the express provisions of article 368, when they entrusted to it the power of amending the Constitution.<br>10. The argument that a power entrusted to a Parliament consisting two Houses cannot be exercised under article 379 by the provisional Parliament sitting as a single chamber overlooks the scheme of the constitutional provisions in regard to Parliament. These provisions envisage a Parliament of two Houses functioning under the Constitution framed as they have been on that basis. But the framers were well aware that such a Parliament could not be constituted till after the first elections were held under the Constitution. It thus became necessary to make provision for the carrying on in the meantime, of the work entrusted to Parliament under the Constitution. Accordingly, it was provided in article 379 that the Constituent Assembly should function as the provisional Parliament during the transitional period and exercise all the powers and perform all the duties conferred by the Constitution on Parliament. Article 379 should be viewed and interpreted in the wider perspective of this scheme and not in its isolated relation to article 368 alone. The petitioners\' argument that the reference in article 368 to “two Houses” makes that provision inapplicable to the provisional Parliament would equally apply to all the provisions of the Constitution in regard to Parliamentary action and, if accepted, would rob article 379 of its very purpose and meaning. It was precisely to obviate such an argument and to remove the difficulty on which it is founded and other difficulties of a like nature in working the Constitution during the transitional period that the framers of the Constitution made the further provision in article 392 conferring a general power on the President to adapt the provisions of the Constitution by suitably modifying their terms. This brings us to the construction of article 392. <br>11. It will be seen that the purpose for which an adaptation may be made under that article is widely expressed. It may be made for the purpose of removing “any difficulties”. The particularisation of one class of difficulties which follows is illustrative and cannot have the effect of circumscribing the scope of the preceding general words. It has been urged, however, that the condition precedent to the exercise of powers under article 392 is the existence of difficulties to be removed, that is to say, difficulties actually experienced in the working of the Constitution whose removal would be necessary for carrying on the Government, such as for instance, the difficulties connected with applying articles 112, 113, etc., in the transitional period. But, the argument proceeds, constitutional amendments cannot be said to be necessary during that period. Besides, amendment of the Constitution is a very serious thing, and hence, by providing that both Houses must deliberate and agree to the amendment proposed and pass the bill by a special majority, the Constitution has purposely placed difficulties in the way of amending its provisions. It would be fantastic to suppose that, after deliberately creating those difficulties, it has empowered the President to remove them by a stroke of his pen. We see no force in this line of argument. It is true enough to say that difficulties must exist before they can be removed by adaptation, but they can exist before an occasion for their removal actually arises. As already stated, difficulties are bound to arise in applying provisions, which, by their terms are applicable to a Parliament of two Houses, to the provisional Parliament sitting as a single chamber. Those difficulties, arising as they do out of the in-appropriateness of the language of those provisions as applied to the provisional Parliament, have to be removed by modifying that language to fit in with the situation created by article 379. There is nothing in that article to suggest that the President should wait, before adapting a particular article, till an occasion actually arose for the provisional Parliament to exercise the power conferred by that article. Nor is there any question here of the President removing by his adaptation any of the difficulties which the Constitution has deliberately placed in the way of its amendment. The adaptation leaves the requirement of a special majority untouched. The passing of an amendment bill by both Houses is no more a special requirement of such a bill than it is of any ordinary law made by Parliament. We are, therefore, of opinion that the adaptation of article 368 by the President was well within the powers conferred on him by article 392 and is valid and constitutional.<br>12. A more plausible argument was advanced in support of the contention that the Amendment Act, in so far as it purports to take away or abridge any of the fundamental rights, falls within the prohibition of article 13(2) which provides that “the State shall not make any law which takes away or abridges the rights, conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention be void”. The argument was put thus: “The State” includes Parliament (article 12) and “law” must include a constitutional amendment. It was the deliberate intention of the framers of the Constitution, who realised the sanctity of the fundamental rights conferred by Part III, to make them immune from interference not only by ordinary laws passed by the legislatures in the country but also from constitutional amendments. It is not uncommon to find in written constitutions a declaration that certain fundamental rights conferred on the people should be “eternal and inviolate” as for instance article 11 of the Japanese Constitution. Article 5 of the American Federal Constitution provides that no amendment shall be made depriving any State without its consent “of its equal suffrage in the Senate”. The framers of the Indian Constitution had the American and the Japanese models before them, and they must be taken to have prohibited even constitutional amendments in derogation of fundamental rights by using aptly wide language in article 13(2). The argument is attractive, but there are other important considerations which point to the opposite conclusion.<br>13. Although “law” must ordinarily include constitutional law, there is a clear demarcation between ordinary law, which is made in exercise of legislative power, and constitutional law, which is made in exercise of constituent power. Dicey defines constitutional law as including “all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the State”. It is thus mainly concerned with the creation of the three great organs of the State, the executive, the legislature and the judiciary, the distribution of governmental power among them and the definition of their mutual relation. No doubt our constitution-makers, following the American model, have incorporated certain fundamental rights in Part III and made them immune from interference by laws made by the State. We find it, however, difficult, in the absence of a clear indication to the contrary, to suppose that they also intended to make those rights immune from constitutional amendment. We are inclined to think that they must have had in mind what is of more frequent occurrence, that is, invasion of the rights of the subjects by the legislative and the executive organs of the State by means of laws and rules made in exercise of their legislative power and not the abridgement or nullification of such rights by alterations of the Constitution itself in exercise of sovereign constituent power. That power, though it has been entrusted to Parliament, has been so hedged about with restrictions that its exercise must be difficult and rare. On the other hand, the terms of article 368 are perfectly general and empower Parliament to amend the Constitution, without any exception whatever. Had it been intended to save the fundamental rights from the operation of that provision, it would have been perfectly easy to make that intention clear by adding a proviso to that effect. In short, we have here two articles each of which is widely phrased, but conflicts in its operation with the other. Harmonious construction requires that one should be read as controlled and qualified by the other. Having regard to the considerations adverted to above, we are of opinion that in the context of article 13 “law” must be taken to mean rules or regulations made in exercise of ordi-nary legislative power and not amendments to the Constitution made in exercise of constituent power, with the result that article 13(2) does not affect amendments made under article 368.<br>14. It only remains to deal with the objections particularly directed against the newly inserted articles 31A and 31B. One of these objections is based on the absence of ratification under article 368. It was said that, before these articles were inserted by the Amending Act, the High Courts had the power under article 226 of the Constitution to issue appropriate writs declaring the Zemindari Abolition Acts unconstitutional as contravening fundamental rights, and this Court could entertain appeals from the orders of the High Courts under article 132 or article 136. As a matter of fact, some High Courts had exercised such powers and this Court had entertained appeals. The new articles, however, deprive the High Courts as well as this Court of the power of declaring the said Acts unconstitutional, and thereby seek to make changes in Ch. 4 of Part V and Ch. 5 of Part VI. It was there-fore submitted that the newly inserted articles required ratification under the proviso to article 368. The argument proceeds on a misconception. These articles so far as they are material here, run thus:—<br>31A. Saving of laws providing for acquisition of estates, etc.—(1) Notwithstanding anything in the foregoing provisions of this part, no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part:—<br>31B. Validation of certain Acts and Regulations.— Without prejudice to the generality of the provisions contained in article 31-A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.”<br>15. It will be seen that these articles do not either in terms or in effect seek to make any change in article 226 or in articles 132 and 136. Article 31A aims at saving laws providing for the compulsory acquisition by the State of a certain kind of property from the operation of article 13 read with other relevant articles in Part III, while article 31B purports to validate certain specified Acts and Regulations already passed, which, but for such a provision, would be liable to be impugned under article 13. It is not correct to say that the powers of the High Court under article 226 to issue writs “for the enforcement of any of the rights conferred by Part III” or of this Court under articles 132 and 136 to entertain appeals from orders issuing or refusing such writs are in any way affected. They remain just the same as they were before: only a certain class of case has been excluded from the purview of Part III and the courts could no longer interfere, not because their powers were curtailed in any manner or to any extent, but because there would be no occasion hereafter for the exercise of their power in such cases.<br>16. The other objection that it was beyond the power of Parliament to enact the new articles is equally untenable. It was said that they related to land which was covered by item 18 of List II of the Seventh Schedule and that the State legislatures alone had the power to legislate with respect to that matter. The answer is that, as has been stated, articles 31A and 31B really seek to save a certain class of laws and certain specified laws already passed from the combined operation of article 13 read with other relevant articles of Part III. The new articles being thus essentially amendments of the Constitution, Parliament alone had the power of enacting them. That the laws thus saved relate to matters covered by List II does not in any way affect the position. It was said that Parliament could not validate a law which it had no power to enact. The proposition holds good where the validity of the impugned provision turns on whether the subject-matter falls within or without the jurisdiction of the legislature which passed it. But to make a law which contravenes the constitution constitutionally valid is a matter of constitutional amendment, and as such it falls within the exclusive power of Parliament. The question whether the latter part of article 31B is too widely expressed was not argued before us and we express no opinion upon it.<br>17. The petitions fail and are dismissed with costs.</h4><p><br></p>', '02b73c0fe65e05b1b175436759532c49.jpeg', '913f93079533947f44366ad9b785a964.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1951-10-05', 1, '', '', '2021-02-01 21:46:51', '2021-02-01 23:09:19'),
(400, 'slg6fyXvkKCG2s6ORd7gf6xiS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contract Act. Undue influence. There must be specific pleadings. Supreme Court.  ', '<h4 style=\"margin-top:0cm\"><b>Raja Ram vs Jai Prakash Singh and others. Civil Appeal 2896/2009 decided on 11 September 2019. Reported in (2019) 8 SCC 701</b></h4><h4 style=\"margin-top:0cm\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2009/10254/10254_2009_12_1501_16652_Judgement_11-Sep-2019.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2009/10254/10254_2009_12_1501_16652_Judgement_11-Sep-2019.pdf</a></h4><h4 style=\"margin-top:0cm\"><b>Relevant paragraphs:  12.</b> That leads us to the question of undue influence. The pleadings in the plaint are completely bereft of any details or circumstances with regard to the nature, manner or kind of undue influence exercised by the original defendants over the deceased. A mere bald statement has been made attributed to the infirmity of the deceased. We have already held that the deceased was not completely physically and mentally incapacitated. There can be no doubt that the original defendants were in a fiduciary relationship with the deceased. Their conduct in looking after the deceased and his wife in old age may have influenced the thinking of the deceased. But that per se cannot lead to the only irresistible conclusion that the original defendants were therefore in a position to dominate the will of the deceased or that the sale deed executed was unconscionable. The onus would shift upon the original defendants under Section 16 of the Contract Act read with Section 111 of the Evidence Act, as held in Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558 only after the plaintiff would have established a prima facie case. The wife of the deceased was living with him and had accompanied him to the office of the Sub-Registrar. The plaintiff has not pleaded or led any evidence that the wife of the deceased was also completely dominated by the original defendants.</h4><h4 style=\"margin-top:0cm\"><b>13.</b> In every caste, creed, religion and civilised society, looking after the elders of the family is considered a sacred and pious duty. Nonetheless, today it has become a matter of serious concern. Parliament taking note of the same enacted the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. We are of the considered opinion, in the changing times and social mores, that to straightway infer undue influence merely because a sibling was looking after the family elder, is an extreme proposition which cannot be countenanced in absence of sufficient and adequate evidence. Any other interpretation by inferring a reverse burden of proof straightway, on those who were taking care of the elders, as having exercised undue influence can lead to very undesirable consequences. It may not necessarily lead to neglect, but can certainly create doubts and apprehensions leading to lack of full and proper care under the fear of allegations with regard to exercise of undue influence. Law and life run together. If certain members of the family are looking after the elderly and others by choice or by compulsion of vocation are unable to do so, there is bound to be more affinity between the elder members of the family with those who are looking after them day to day.</h4><h4 style=\"margin-top:0cm\"><b>14.</b> In <b>Bishundeo Narain v. Seogeni Rai and Jagernath, AIR 1951 SC 280</b> it was observed as follows:</h4><h4 style=\"margin-top:0cm\"><i>“24. We turn next to the questions of undue influence and coercion. Now it is to be observed that these have not been separately pleaded. It is true they may overlap in part in some cases but they are separate and separable categories in law and must be separately pleaded.</i></h4><h4 style=\"margin-top:0cm\"><i>25. It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion.”</i></h4><h4 style=\"margin-top:0cm\"><b>15.</b> In <b>Subhas Chandra Das Mushib v. Ganga Prasad Das Mushib, AIR 1967 SC 878</b> distinguishing between influence and undue influence, it was observed as follows: </h4><h4 style=\"margin-top:0cm\">“8. It must also be noted that merely because the parties were nearly related to each other no presumption of undue influence can arise. As was pointed out by the Judicial Committee of the Privy Council in Poosathurai v. Kannappa Chettiar, 1919 SCC OnLine PC 78 ‘It is a mistake (of which there are a good many traces in these proceedings) to treat undue influence as having been established by a proof of the relations of the parties having been such that the one naturally relied upon the other for advice and the other was in a position to dominate the will of the first in giving it. Up to that point “influence” alone has been made out. Such influence may be used wisely, judiciously and helpfully. But, whether by the law of India or the law of England, more than mere influence must be proved so as to render influence, in the language of the law, “undue”.’”</h4><h4 style=\"margin-top:0cm\"><b>16.</b> In <b>Subhas Chandra Das Mushib v. Ganga Prasad Das Mushib, AIR 1967 SC 878</b> it was further observed that there was no presumption of imposition merely because a donor was old and weak. Mere close relation also was insufficient to presume undue influence, observing as follows: </h4><h4 style=\"margin-top:0cm\">“10. Before, however, a court is called upon to examine whether undue influence was exercised or not, it must scrutinise the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6 Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in Ladli Parshad Jaiswal v. Karnal Distillery Co. Ltd., AIR 1963 SC 1279 above referred to. In that case it was observed:</h4><h4 style=\"margin-top:0cm\"><b style=\"background-color: rgb(255, 255, 0);\">‘20. … A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other.’”</b></h4><h4 style=\"margin-top:0cm\"><b>17.</b> <b>Krishna Mohan Kul v. Pratima Maity, (2004) 9 SCC 468 </b>is distinguishable on its own fact. The executant was indisputably over 100 years of age. The witnesses proved that he was paralytic and virtually bedridden. None of the witnesses could substantiate that the executant had put his thumb impression.</h4><h4 style=\"margin-top:0cm\"><b>18.</b> The first appellate court, completely erred in appreciation of the facts and evidence in the case. There can be no application of the law sans the facts of a case. The primary ingredients of the law need to be first established by proper pleading supported by relevant evidence. Cases cannot be decided on assumptions or presumptions. We do not think that the present calls for exercise of any discretionary jurisdiction under Article 136 of the Constitution as a fourth court of appeal. In Pritam Singh v. State, AIR 1950 SC 169 it was observed: </h4><h4 style=\"margin-top:0cm\">“9. … Generally speaking, this Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against. Since the present case does not in our opinion fulfil any of these conditions, we cannot interfere with the decision of the High Court, and the appeal must be dismissed.”</h4><h4 style=\"margin-top:0cm\">19. On a consideration of the entirety of the matter we find no reason to interfere with the concurrent findings arrived at by the two courts. The appeal is dismissed. There shall be no order as to costs.</h4><h4 style=\"margin-top:0cm\"><br></h4><p>\r\n\r\n</p>', '3ed0190b90357b49865c06805e7ec125.jpg', '81e97a5f703b29d4b34bd33fa7cd288e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2019-09-11', 1, '', '', '2021-01-31 23:37:45', '2021-01-31 23:49:08'),
(399, 'UvWL6nuz5bC8snzrIFXFPuHn3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contract Act. Concluded contract. Proposal and acceptance. When the acceptor puts in a new condition while accepting the contract already signed by the proposer the contract is not complete until the proposer accepts that condition. Supreme Court', '<h4><b>M/s. Padia Timber Company(P) Ltd v. The Board of Trustees of Visakhapatnam Port Trust Through its Secretary, Civil Appeal No.7469 Of 2008, Decided on 5 January, 2021</b><br>Judgment Link:<a href=\"https://main.sci.gov.in/supremecourt/2007/5298/5298_2007_35_1501_25342_Judgement_05-Jan-2021.pdf\" target=\"_blank\"> https://main.sci.gov.in/supremecourt/2007/5298/5298_2007_35_1501_25342_Judgement_05-Jan-2021.pdf</a><br><b>Relevant Paragraphs:&nbsp;</b>The short question involved in this appeal is, whether the acceptance of a conditional offer with a further condition results in a concluded contract, irrespective of whether the offerer accepts the further condition proposed by the acceptor. This question does not appear to have been addressed by the High Court or the Court below.<br><b>11.</b> By a letter dated 29.10.1990, written in response to the quotations dated 1.8.1990, 8.8.1990 and the letter dated 20.10.1990 of the Appellant, the Respondent-Port Trust informed the Appellant that the Respondent-Port Trust had accepted the offer of the Appellant for supply of wooden sleepers at the rate quoted by the Appellant. Though the Respondent-Port Trust agreed that the Inspection Committee would inspect the Wooden Sleepers at the site of the Appellant, the Respondent-Port Trust imposed the further condition that the Appellant would have to transport the Wooden Sleepers to the General Stores of the Respondent-Port Trust by road, at the cost of the Appellant and the final inspection would be made at the General Stores of the Respondent-Port Trust. The Respondent-Port Trust also requested the Appellant to extend the delivery period of the sleepers until 15.11.1990.<br><span style=\"background-color: rgb(255, 255, 0);\"><b style=\"\">56. It is a cardinal principle of the law of contract that the offer and acceptance of an offer must be absolute. It can give no room for doubt. The offer and acceptance must be based or founded on three components, that is, certainty, commitment and communication. However, when the acceptor puts in a new condition while accepting the contract already signed by the proposer, the contract is not complete until the proposer accepts that condition, as held by this Court in <i>Haridwar Singh v. Bagun Sumbrui and Ors&nbsp;</i></b><b style=\"\"><i>AIR 1972 SC 1</i></b><b style=\"font-size: 1.3125rem;\"><i>. </i>An acceptance with a variation is no acceptance. It is, in effect and substance, simply a counter proposal which must be accepted fully by the original proposer, before a contract is made.</b></span></h4><h4><br></h4><h4><br></h4><p><br></p>', '34ce2e902a868d3cf21f11ee261e3ab5.jpg', '5f79c79e2fd9486887472ae29d380bd5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-05', 1, '', '', '2021-01-31 20:46:45', '2021-01-31 20:53:37');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(403, 'bDx0rbjQtSg07SFhs7NvoyzlI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Evidence Act 1872. Best Evidence Rule. Secondary evidence cannot be produced without satisfying conditions mentioned in Sections 65 and 66. Karnataka High Court ', '<h4><span style=\"font-size: 1.3125rem;\"><b>M.R. Shivarudraiah and anotehr vs Rudrappa and others. Writ Petition 14488/2020 decided on 28 January 2021.</b> </span></h4><h4><span style=\"font-size: 1.3125rem;\"><b>Judgment Link: </b><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/361307/1/WP14488-20-28-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/361307/1/WP14488-20-28-01-2021.pdf</a></span><br></h4><h4><b>Relevant paragraphs</b> <b>2(a) </b>Admittedly, suit is one for partition; petitioners happen to be the contesting defendants therein; during the course of trial, the subject document which is a xerox/photostat copy of alleged Deed of Co-ownership has been marked in the cross examination  of  Defendant  No.2 by confronting the same under Order VII Rule 14(4) of the Code; the only reason stated by the  Court  below  for marking the same is that the witness in the box ie., DW-2 admits it; this is completely erroneous, to say the least; the application of Order VII Rule 14(4) is confined to cross- examination of plaintiffs’ witness, which is not the  case  here; although, in a partition suit, ordinarily, the rank of parties pales into insignificance, the norm enacted in  the said provision applies in the absence of a Counterclaim by the said defendant who was being cross-examined.<br><b>2(b)</b> The subject document which appears to be a copy of the title deed, is marked apparently as a secondary evidence; this presupposes the existence of the primary evidence namely the original  document;  primary  evidence is that which does not by its very  nature  suggests  that  better evidence may be available; secondary  evidence  is  that by its very nature does suggest that  better  evidence  may be available; the original of a documentary evidence constitutes primary evidence and a copy  thereof  is secondary evidence of its contents, needs  no  elaboration; the distinction is important in connection with documents, because their contents must, as  a  general  rule  be  proved by production of the original, by virtue of the  “Best  Evidence Rule”, as articulated by Lord Hardvicke in OMYCHUND vs. BARKER (1745) I ATK. 21, AT P.49, as<br>under:<br><i>“The judges and sages of the law have laid it down that there is but one general rule of evidence, the best that the nature of the case will allow…” OMYCHUND vs. BARKER (1745) I ATK. 21, AT P.49.</i><br>Thus where there was nothing better, recourse  might  be  had to evidence which would otherwise be  inadmissible;  this well established rule of evidence has not animated the impugned order and thus there is an error apparent on its face.<br><b>2(c)</b><span style=\"white-space:pre\">	</span>Section 64 of the Indian Evidence Act, 1872, which has enacted the Best Evidence Rule requires that the contents of a document must be proved by the production of the original document and that the secondary evidence of it is not normally admissible; Section 65 enacts the exception to this rule by laying down the circumstances in which secondary evidence may be given; the principle is that as long as the original exists and is available, it being the best evidence must be produced; however, if it cannot be produced on account of loss/destruction/detention by others, who despite notice decline to produce or for such other reasons, then  secondary evidence becomes admissible; the reason d’etre of this rule is stated by PORTER.J., in THOMAS vs. T, 1 La 166, 168 (Am) as follows:<br><i>“The rule is only another form of expression for the idea that when you lose the higher proof, you may offer the next best in your power  ….  The  rule does not mean that men’s rights are to be sacrificed and their property lost because they cannot guard against events  beyond  their control; it only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you  shall  give  no  inferior proof in relation to that”.</i><br><span style=\"background-color: rgb(255, 255, 0);\"><b>The section contemplates a  situation  wherein  the document sought to be produced in evidence is in the possession of the opposite party or a third person. When it is in possession of the opposite party and  secondary evidence of any document referred to in cl.(a) is desired to  be given then notice to produce must be served on him as prescribed by Order XI Rule 16 of CPC except in the cases mentioned in the proviso to Section 66 of the Act. When service is proved and the opposite  party  fails  to  produce the document, the party serving notice becomes entitled to give secondary evidence of it. Sections 65 & 66 being  cognate provisions need to be read together:both the sections relate to the admission of secondary evidence of a document and its conditions. Section 65 lays down  the  cases wherein secondary evidence of a document may be given and s.66 lays down that previous notice to produce must be given except in the cases saved by the proviso  to  the section.</b></span><br><b>2(f)</b> Metaphorically speaking, the foundational facts which one needs to lay for producing the secondary  evidence, need not be as robust as the foundation that  is  laid for the main building; but it has to be as strong as the one that is put for the erection of a structure like an outhouse; even this standard is not met by the contesting respondents who seek to produce a photostat copy of the document in question, by way of secondary evidence; the Apex Court in <b>Siddiqui Vs. A. Ramalingam, (2011) 4 SCC  240 </b>at para 12 has observed as under:<br><i>“Provisions of Section 65 of the Act  1872  provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been  led  for giving secondary evidence, it is  not  permissible for the court to allow a party  to  adduce  secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non production of the original is accounted for, so as to bring it within one or other of the cases provided for in  the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in  evidence  does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon…”</i></h4><h4><b><span style=\"font-size: 1.3125rem;\">Even now, it is open to the respondents to lay a fresh foundation as provided u/s 65 of the Indian Evidence Act, 1872, for producing the secondary evidence of the document in question.</span><br></b></h4><h4><i><br></i></h4>', 'ca09d938c7bae90a20eae5e32b909c9c.jpg', '9eb9dbe4dd91d822890d4c8c95ddf238.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-28', 1, '', '', '2021-02-01 22:13:51', '2021-02-01 22:42:03'),
(404, 'n8U3ZzOAPelvLtMISi3aseM9G', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Penal Code. Ingredients for Cheating and Criminal Breach of Trust explained. Supreme Court.  ', '<h4><b>R.K. Vijayasarathy v. Sudha Seetharam, (2019) 16 SCC 739  <br>Criminal Appeal No. 238 of 2019, decided on February 15, 2019.</b> </h4><h4>Judgment Link:<a href=\"https://main.sci.gov.in/supremecourt/2018/39319/39319_2018_Judgement_15-Feb-2019.pdf\" target=\"_blank\"> https://main.sci.gov.in/supremecourt/2018/39319/39319_2018_Judgement_15-Feb-2019.pdf</a><br><b>Relevant paragraphs 12.</b> Section 405 of the Penal Code reads thus:<br><i>“405. Criminal breach of trust.—Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”.”</i><br><span style=\"background-color: rgb(255, 255, 0);\"><b>13. A careful reading of Section 405 shows that the ingredients of a criminal breach of trust are as follows:<br>13.1. A person should have been entrusted with property, or entrusted with dominion over property;<br>13.2. That person should dishonestly misappropriate or convert to their own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so; and<br>13.3. That such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.<br>14. Entrustment is an essential ingredient of the offence. A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code.</b></span><br><b>15.</b> Section 415 of the Penal Code reads thus:<br><i>“415. Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.”</i><br><b style=\"background-color: rgb(255, 255, 0);\">16. The ingredients to constitute an offence of cheating are as follows:<br>16.1. There should be fraudulent or dishonest inducement of a person by deceiving him:<br>16.1.1. The person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or<br>16.1.2. The person so induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and<br>16.2. In cases covered by 16.1.2. above, the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property.</b><br><b>17. </b>A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.<br>18. Section 420 of the Penal Code reads thus:<br><i>“420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”</i><br><b style=\"background-color: rgb(255, 255, 0);\">19. The ingredients to constitute an offence under Section 420 are as follows:<br>19.1. A person must commit the offence of cheating under Section 415; and<br>19.2. The person cheated must be dishonestly induced to<br>(a) deliver property to any person; or<br>(b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.<br>20. Cheating is an essential ingredient for an act to constitute an offence under Section 420.</b><br><b>21.</b> A court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary for the offence. <br><b>22</b>. The condition necessary for an act to constitute an offence under Section 405 of the Penal Code is that the accused was entrusted with some property or has dominion over property. The first respondent has stated that the disputed sum was transferred by the son of the appellants of his own volition to her. The complaint clearly states that the amount was transferred for the benefit of the son of the appellants and that the first respondent was to hold the amount “in trust” for him. The complaint alleges that the money was transferred to the appellants “as per the dicta” of the son of the appellants. There is on the face of the complaint, no entrustment of the appellants with any property.<br><b>23.</b> The condition necessary for an act to constitute an offence under Section 415 of the Penal Code is that there was dishonest inducement by the accused. The first respondent admitted that the disputed sum was transferred by the son of the appellants to her bank account on 17-2-2010. She alleges that she transferred the money belonging to the son of the appellants at his behest. No act on part of the appellants has been alleged that discloses an intention to induce the delivery of any property to the appellants by the first respondent. There is thus nothing on the face of the complaint to indicate that the appellants dishonestly induced the first respondent to deliver any property to them. Cheating is an essential ingredient to an offence under Section 420 of the Penal Code. The ingredient necessary to constitute the offence of cheating is not made out from the face of the complaint and consequently, no offence under Section 420 is made out.<br><b>24.</b> In <b>Binod Kumar v. State of Bihar, (2014) 10 SCC 663 </b>certain amounts were due and payable to a contract worker. When the amount due was not paid due to a termination of the contract, the worker filed a criminal case against the appellant for criminal breach of trust. The appellants’ petition under Section 482 of the Code of Criminal Procedure for quashing was dismissed9 by the High Court. A two-Judge Bench of this Court examined the ingredients of the offence and whether the complaint on its face disclosed the commission of any offence. This Court quashed the criminal proceedings holding thus:<br><i>“14. At this stage, we are only concerned with the question whether the averments in the complaint taken at their face value make out the ingredients of criminal offence or not. …<br>18. In the present case, looking at the allegations in the complaint on the face of it, we find that no allegations are made attracting the ingredients of Section 405 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the appellants in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Excepting the bald allegations that the appellants did not make payment to the second respondent and that the appellants utilised the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest intention in misappropriating the property. …<br>19. Even if all the allegations in the complaint taken at the face value are true, in our view, the basic essential ingredients of dishonest misappropriation and cheating are missing. Criminal proceedings are not a shortcut for other remedies. Since no case of criminal breach of trust or dishonest intention of inducement is made out and the essential ingredients of Sections 405/420 IPC are missing, the prosecution of the appellants under Sections 406/120-B IPC, is liable to be quashed.”</i><br><b>28. </b>The jurisdiction under Section 482 of the Code of Criminal Procedure has to be exercised with care. In the exercise of its jurisdiction, a High Court can examine whether a matter which is essentially of a civil nature has been given a cloak of a criminal offence. Where the ingredients required to constitute a criminal offence are not made out from a bare reading of the complaint, the continuation of the criminal proceeding will constitute an abuse of the process of the court.<br></h4><p><br></p>', '17ba76a53e128a93a582cd9bdfc034d9.jpg', 'f8a9658f7d54fc1282a6b350d304fcb8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2019-02-15', 1, '', '', '2021-02-01 23:29:14', '2021-02-01 23:30:24'),
(405, '7bphhFPLCyWieyTYZBh9CjXY7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Whether a cheque is issued in respect of a time barred debt is a matter for trial. Proceedings cannot be quashed on this ground. Karnataka High Court. ', '<h4><span style=\"font-size: 14px;\"><b>Dr. Shreeyansh Rayappa nandeshwar&nbsp; v.&nbsp; Dr. Prakash Ponde, </b></span></h4><h4><span style=\"font-size: 14px;\"><b>Criminal Petition No. 3991/2020, Decided on 28 January 2021. </b></span></h4><h4><span style=\"font-size: 14px;\"><b>Justice H.P. Sandesh</b></span></h4><h4><b><br></b></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 14px;\"><b>37. Having heard the arguments of the respective learned counsel and also on perusal of the grounds of the petition, the following points that would arise for the consideration of this Court are:</b></span></h4><h4 style=\"text-align: justify;\"><span style=\"font-size: 14px;\"><b>i. Whether this Court can quash the proceedings in coming to the conclusion that the issuance of self cheque in respect of the time barred debt?</b></span></h4><h4 style=\"text-align: justify;\"><span style=\"font-size: 14px;\"><b>ii. Whether the self cheque issued by the petitioner attracts Section 138 of the Negotiable Instruments Act, 1881?</b></span></h4><h4 style=\"text-align: justify;\"><span style=\"font-size: 14px;\"><b>iii. Whether both the Courts have committed an error in taking the cognizance and confirming the cognizance by the Revisional Court and it requires an interference of this court exercising the powers under Section 482 of Cr.P.C.?</b></span></h4><h4 style=\"text-align: justify;\"><span style=\"font-size: 14px;\"><b>iv.What order?</b></span></h4><h4 style=\"text-align: justify;\"><span style=\"font-size: 14px; background-color: rgb(255, 255, 0);\"><b>45.Having considered the principles laid down in the Judgments referred supra, though the petitioner’s counsel referred several judgments of different High Courts, it is settled law that whether the transaction is time barred or not has to be considered only after the trial not at the preliminary stage or at the time of taking cognizance. Hence, point No.(i) raised by this Court is answered as ‘negative’.</b></span></h4><h4 style=\"text-align: justify;\"><span style=\"font-size: 14px;\"><b>50. Having perused the principles laid down in the Judgment, the very contention that there is no endorsement and the self cheque does not attract Section 138 of the NI Act, cannot be accepted at this juncture. The respondent made out the prima facie case. In view of the principles laid down in the Judgments referred above, point No.(ii) raised by this Court is answered as ‘affirmative’.</b></span></h4><h4 style=\"text-align: justify;\"><span style=\"font-size: 14px;\"><b>51.The contention that it does not attract Section 138 of the NI Act cannot be accepted. The learned Magistrate having taken note of the material available on record rightly took the cognizance. The other contention is that it is a time barred debt cannot be decided at the time of taking the cognizance. The Revisional Court also while dismissing the revision discussed in detail in paragraph No.14 that admittedly the signature of the cheque in question is not in dispute and also comes to the conclusion that the complainant is a holder in due course of the said cheque. It is further observed that the petitioner herein himself admitted in his reply to the demand notice dated 03.05.2019 that the petitioner handed over two self cheques each for Rs.5 Lakhs. It is also clear that the word “bearer” has not been struck off. It is further observed that the scope of revision is very limited and the merits of the case cannot be decided in a revision petition. Further observed that the truth or falsity cannot be entered into by the Revisional Court, that too, in the initial stage of the case. I do not find any error committed by the Revisional Court also in confirming the taking of cognizance. The matter needs a full- fledged trial to decide the issue involved between the parties and the grounds which have been urged before this Court by the petitioner can be raised before the Trial Court during the course of the trial and the sitting under Section 482 of Cr.P.C, the Court cannot quash the same. Hence, there is no merit in the petition.</b></span></h4><div style=\"text-align: justify;\"><br></div>', '62a47cf057423fe1c81366011aec9f78.JPG', 'ff3d57728bfa267cedfa346e87e044a5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-26', 1, '', '', '2021-02-02 02:49:26', '2023-01-26 22:48:16'),
(406, 'rE7p0JYriSkARjMKj9SdFf75g', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Grant of bail in cases of enormous delay in trial. Statutory bar does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Supreme Court ', '<h4 style=\"text-align: justify; \"><b>Union of India vs K.A.Najeeb. Criminal Appeal 98/2021 decided on 1 February 2021. </b></h4><h4 style=\"text-align: justify;\"><b>Justice N.V. Ramana, Justice Surya Kant and Justice Aniruddha Bose.&nbsp;</b></h4><h4><div style=\"text-align: justify;\"><b><br></b></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Judgment Link:</b></div></b><div style=\"text-align: justify;\"><a href=\"https://main.sci.gov.in/supremecourt/2019/40158/40158_2019_32_1501_25867_Judgement_01-Feb-2021.pdf\" target=\"_blank\"></a><a href=\"https://main.sci.gov.in/supremecourt/2019/40158/40158_2019_32_1501_25867_Judgement_01-Feb-2021.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">https://main.sci.gov.in/supremecourt/2019/40158/40158_2019_32_1501_25867_Judgement_01-Feb-2021.pdf</a><br></div></h4><h4 style=\"text-align: justify;\"><br><b>Relevant paragraphs:<br>9</b>. It must be emphasised at the outset that there is a vivid distinction between the parameters to be applied while considering a bail application, vis¬à¬vis those applicable while deciding a petition for its cancellation.</h4><h4 style=\"text-align: justify;\"><b>11.</b> The High Court instead appears to have exercised its power to grant bail owing to the long period of incarceration and the unlikelihood of the trial being completed anytime in the near future. The reasons assigned by the High Court are apparently traceable back to Article 21 of our Constitution, of course without addressing the statutory embargo created by Section 43¬D (5) of UAPA.&nbsp;</h4><h4 style=\"text-align: justify;\"><b>12.</b> The High Court’s view draws support from a batch of decisions of this Court, including in Shahee Welfare Association&nbsp; laying down that gross delay in disposal of such cases would justify the invocation of Article 21 of the Constitution and consequential necessity to release the undertrial on bail.&nbsp;</h4><h4 style=\"text-align: justify;\">13. Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS”) which too have rigorous conditions for grant of bail somewhat.</h4><h4 style=\"text-align: justify; \"><b>16. </b>This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice&nbsp; and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India (1994) 6 SCC 731&nbsp; it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would&nbsp; ordinarily be obligated to enlarge them on bail.</h4><h4 style=\"text-align: justify; \"><b><span style=\"background-color: rgb(255, 255, 0);\">18. It is thus clear to us that the presence of statutory restrictions like Section 43¬D (5) of UAPA per-se does not oust&nbsp; the ability&nbsp; of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence</span></b></h4><h4 style=\"text-align: justify;\"><br></h4>', 'ef5ed1ca4d18c9e2e6a307fa6d6aefb8.jpg', 'df073f4409bb1dfd007eae10f50837ee.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-01', 1, '', '', '2021-02-02 20:24:16', '2021-02-04 00:42:41'),
(407, 'HIKhxtCRO2x0zJg11d8rKhuyD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contact Act. Fraud and Misrepresentation explained by the Supreme Court. ', '<h4><b>Rengali Hydro Electric Project v. Giridhari Sahu, (2019) 10 SCC 695. Civil Appeal 8071/2010 decided on 12 September 2019. Justice Sanjay Kishan Kaul and Justice K.M.Joseph&nbsp;<br><br>Judgment Link:</b> <br><a href=\"https://main.sci.gov.in/supremecourt/2008/16520/16520_2008_11_1502_16692_Judgement_12-Sep-2019.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2008/16520/16520_2008_11_1502_16692_Judgement_12-Sep-2019.pdf</a><br></h4><h4><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The Indian Contract Act, 1872. Section 15 defines ‘coercion’. Section 17 defines ‘fraud’. Section 18 defines “Misrepresentation”. ‘Undue influence’ is defined under Section 19 </span><i style=\"font-size: 1.3125rem;\">(see below for full extracts)</i></div></h4><h4 style=\"text-align: justify;\"><b>Paragraph 43.</b> A perusal of the definition of the word “fraud”, as defined in Section 17 of the Contract Act, would reveal that the concept of fraud is very wide. It includes any suggestion, as a fact, of that which is not true, by a person who does or does not believe it to be true. </h4><h4 style=\"text-align: justify;\">It may be contrasted with Section 18(1) of the Contract Act which, inter alia, defines “misrepresentation”. It provides that it is misrepresentation if a positive assertion is made by a person of that which is not true in a manner which is not warranted by the information which he has. This is despite the fact that he may believe it to be true. </h4><h4 style=\"text-align: justify;\"><b style=\"background-color: rgb(255, 255, 0);\">In other words, in fraud, the person who makes an untruthful suggestion, does not himself believe it to be true. He knows it to be not true, yet he makes a suggestion of the fact as if it were true. </b></h4><h4 style=\"text-align: justify;\"><b style=\"background-color: rgb(255, 255, 0);\">In misrepresentation, on the other hand, the person making misrepresentation believes it to be true. But the law declares it to be misrepresentation on the basis of information which he had and what he believed to be true was not true. </b></h4><h4 style=\"text-align: justify;\">Therefore, the representation made by him becomes a misrepresentation as it is a statement which is found to be untrue. </h4><h4 style=\"text-align: justify;\">Fraud is committed if a person actively conceals a fact, who either knows about the fact or believes in the existence of the fact. The concealment must be active. </h4><h4 style=\"text-align: justify;\">It is here that mere silence has been explained in the Exception which would affect the decision of a person who enters into a contract to be not fraud unless the circumstances are such that it becomes his duty to speak. His silence itself may amount to speech. </h4><h4 style=\"text-align: justify;\"><b style=\"background-color: rgb(255, 255, 0);\">A person may make a promise without having any intention to perform it. It is fraud. </b></h4><h4 style=\"text-align: justify;\">The law further declares that any other act fitted to deceive, is fraud. </h4><h4 style=\"text-align: justify;\"><b>So also, any act or omission, which the law declares to be fraudulent, amounts to fraud. </b>Running as a golden trend however and as a requirement of law through the various limbs of Section 17 of the Contract Act, is the element of deceit. </h4><h4 style=\"text-align: justify;\">A person who stands accused of fraud be it in a civil or criminal action, must entertain an intention to commit deception. Deception can embrace various forms and it is a matter to be judged on the facts of each case. </h4><h4><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">It is, apparently, on account of these serious circumstances that fraud has on a legal relationship or a purported legal relationship that the particulars and details of fraud are required if pleaded in a civil suit or a proceeding to which the CPC applies.</span></div><div style=\"text-align: justify;\"><br></div><b style=\"background-color: rgb(255, 255, 0);\"><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Sections 15, 16, 17 and 18</b></div></b></h4><h4><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 0);\"><b>15.</b> <b>“Coercion”</b></span><span style=\"font-size: 1.3125rem;\"> defined.—“Coercion” is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (XLV of 1860), or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Explanation.—It is immaterial whether the Indian Penal Code (XLV of 1860), is or is not in force in the place where the coercion is employed.</span></div><span style=\"background-color: rgb(255, 255, 0);\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>16.</b> </span><b style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\"><span style=\"background-color: rgb(255, 255, 0);\">“Undue influence”</span> </b><span style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">defined.—(1) A contract is said to be induced by “undue influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.</span></div></span><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another—</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(a) where he holds a real or apparent authority over the other or where he stands in a fiduciary relation to the other; or</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Nothing in this sub-section shall affect the provision of Section 111 of the Indian Evidence Act, 1872 (I of 1872).</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Illustrations</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(a) A, having advanced money to his son, B, during his minority, upon B’s coming of age obtains, by misuse of parental influence, a bond from B for a greater amount than the sum in respect of the advance. A employs undue influence.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(b) A, a man enfeebled by disease or age, is induced, by B’s influence over him as his medical attendant, to agree to pay B an unreasonable sum for his professional services. B employs undue influence.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(c) A, being in debt to B, the money-lender of his village, contracts a fresh loan on terms which appear to be unconscionable. It lies on B to prove that the contract was not induced by undue influence.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(d) A applies to a banker for a loan at a time when there is stringency in the money market. The banker declines to make the loan except at an unusually high rate of interest. A accepts the loan on these terms. This is a transaction in the ordinary course of business, and the contract is not induced by undue influence.</span></div><b><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\"><span style=\"background-color: rgb(255, 255, 0);\">17. “Fraud”</span></b><span style=\"font-size: 1.3125rem; font-weight: 500;\"> defined.—“Fraud” means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract—</span></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(2) the active concealment of a fact by one having knowledge or belief of the fact;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(3) a promise made without any intention of performing it;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(4) any other act fitted to deceive;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(5) any such act or omission as the law specially declares to be fraudulent.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Explanation.—Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Illustrations</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(a) A sells, by auction, to B, a horse which A knows to be unsound. A says nothing to B about the horse’s unsoundness. This is not fraud in A.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(b) B is A’s daughter and has just come of age. Here, the relation between the parties would make it A’s duty to tell B if the horse is unsound.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(c) B says to A—“If you do not deny it, I shall assume that the horse is sound”. A says nothing. Here A’ s silence is equivalent to speech.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(d) A and B, being traders, enter upon a contract. A has private information of a change in prices which would affect B’s willingness to proceed with the contract. A is not bound to inform B.</span></div><b style=\"background-color: rgb(255, 255, 0);\"><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">18. “Misrepresentation”</b><span style=\"font-size: 1.3125rem; font-weight: 500; background-color: rgb(255, 255, 255);\"> defined.—“Misrepresentation” means and includes—</span></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(2) any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">(3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement.</span></div></h4><p style=\"text-align: justify;\"><br></p>', '6cc00d490081d9a426685eecd60f6b6b.jpg', '6af6fcff8b2a6a0113169133c4e78581.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2019-09-12', 1, '', '', '2021-02-02 23:10:30', '2021-02-04 00:44:30');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(408, 'e1v0hne1EoOAL8o7kwOrNWXdB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SARFAESI Act is applicable to plantation lands in the state of Karnataka. Banks can enforce security against such lands. Karnataka High Court.  ', '<h4><b>U.M. Ramesh Rao and another vs Union Bank of India. Writ Appeal 538/2020 and Writ Appeal 545/2020 decided on 29 January 2021. </b></h4><h4><b>Judgment Link: </b><br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/361911/1/WA538-20-29-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/361911/1/WA538-20-29-01-2021.pdf</a><br><b style=\"background-color: rgb(255, 255, 0);\"><br><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Question for consideration. Whether, the lands in question, namely, coffee plantations would fall within the scope of the expression ‘agricultural land’ under Section 31(i) of the SARFAESI Act?</b></div></b><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">48. This would take us to the next point which is to decide, as to, whether, coffee plantations are agricultural lands within the meaning of Section 31(i) of the SARFAESI Act. Before proceeding further, it would be necessary to understand the object of the SARFAESI Act and allude to the background of the said enactment. In this regard, it would be useful to refer to the judgment of the Hon’ble Supreme Court in Mardia Chemicals vs. Union of India, [(2004) 4 SCC 311]. (Mardia Chemicals), wherein reference was made to Narasimham Committee constituted in the year 1991 relating to the financial system prevailing in the country. In Chapter V of the Report under the heading \'Capital Adequacy, Accounting Policies and other Related Matters\', it was opined that special Tribunals to deal with the recovery of dues of the advances made by the banks was necessary. Placing reliance on the Tiwari Committee, it was observed that setting up of special Tribunals could expedite the recovery process. The Narasimham Committee in its Second Report submitted in the year 1992, dealt with legal and legislative framework in Chapter VIII of the said Report. One of the measures recommended was to vest the financial institutions through special statutes, the power of sale of the asset without intervention of the Court and for reconstruction of the assets.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">51. Thus, the question to be determined is whether the provisions of SARFAESI Act would apply to any security interest created in \"agricultural land\", vide Section 31(i). The expression, agricultural land, is not defined under the Act and therefore, the meaning of the said expression would have to be discerned with reference to the plain and dictionary meaning as well as other legislations which deal with the agricultural land.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Judgments in Mohammed Basheer K.P. vs. Deputy General Manager and others, [(2010 (2) KLJ 225], Commissioner of Income Tax, West Bengal vs. Raja Benoy Kumar Sahas Roy, AIR 1957 SC 768, Commissioner of Income Tax, West Bengal vs. Raja Benoy Kumar Sahas Roy, [AIR 1957 SC 768], relied on.&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Thus, the cultivation of the land does not comprise merely of raising the products of the land in the narrower sense of the term like tilling of the land, sowing of the seeds, planting, and similar work done on the land but also includes the subsequent operations set out above, all of which operations, basic as well as subsequent, form one integrated activity of the agriculturist and the term “agriculture” has to be understood as connoting this integrated activity of the agriculturist.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The Hon’ble Supreme Court further observed that one cannot dissociate the basic operations from the subsequent operations, and say that the subsequent operations, even though they are divorced from the basic operations can constitute agricultural operations by themselves. If this integrated activity which constitutes agriculture is undertaken and performed in regard to any land, that land can be said to have been used for “agricultural purposes” and the income derived therefrom can be said to be “agricultural income” derived from the land by agriculture. In that sense, the connotation of the term “agriculture” has been in the wider sense as comprising within its scope the basic as well as the subsequent operations described above. The&nbsp; products may be food grain or vegetables or fruits which are necessary for the sustenance of human beings including plantations and groves, or grass or pasture for consumption of beasts or articles of luxury such as, betel, coffee, tea, spices, tobacco etc., or commercial crops like, cotton, flax, jute, hemp, indigo, etc.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Thus, the test enunciated in this judgment was that the basic idea in the expression \"agriculture\" is cultivation of land in the sense of tilling of land, sowing of seeds, planting and similar work done on the land itself. The&nbsp; basic conception is the essential sine qua non of any operation performed on the land. If the basic operations are there, the rest of the operations which are consequent thereto, namely the subsequent operations, are also part of agriculture, but if the basic operations are wanting, the subsequent operations do not acquire the characteristic of agricultural operations. That, the human labour and skill spent in the performance of subsequent operations cannot be said to have been spent on the land itself, though it may have the effect of preserving, fostering and regenerating the products of the land.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">The Hon’ble Supreme Court further observed that the distinction is not important in cases where the agriculturist performs these operations as a part of his integrated activity in cultivation of the land. Where, however, the products of the land are of spontaneous growth, unassisted by human skill and labour, and human skill and labour are spent merely in fostering the growth, preservation and regeneration of such products of land, the question falls to be considered, whether, these subsequent operations performed by the agriculturist are agricultural operations and enjoy the characteristic of agricultural operations. This is because the products which grow wild on the land or are of spontaneous growth not involving any human labour or skill upon the land are not products of agriculture and the income derived therefrom is not agricultural income, as there is no process of agriculture involved in the raising of these products from the land.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">59. We have perused the definition of the word ‘agriculture’ under various enactments. Under the Land Reforms Act the definition of ‘agriculture’ is an inclusive one which also includes the raising of crops, grass or garden produce. The expression “plantation crops” is defined to mean cardamom, coffee, pepper, rubber and tea, etc. This implies that all other crops are non- plantation crops. The word “land” means agricultural land, including garden land, plantation, but does not include house site or land used exclusively for non-agricultural purposes. Under Section 104 of the said Act, certain provisions of the said Act do not apply to plantations. The word ‘plantation’ is explained under Section 104 to mean land used by a person principally for the cultivation of plantation crops and includes any land used ancillary to the cultivation of such crop or for preparation of the same for the market and agricultural land within the area cultivated with such crop for the protection and efficient management of such cultivation.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">60. Under the Land Revenue Act, the definition ‘class of land’ includes plantation land. Plantation land means land on which a plantation crop i.e., cardamom, coffee, pepper, rubber and tea can be grown.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">61. Thus, under both the Land Reforms Act and Land Revenue Act, plantation crops and plantation land refer to only cardamom, coffee, pepper, rubber and tea.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">62. Under 2013 Act, ‘agricultural land’ means land used for the purpose of raising or crops. Crops would include plantation crops referred to above.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">63. Under Karnataka Agricultural Income Tax Act, 1957, ‘Agricultural Income’ means any revenue derived from land situated within the State and used for growing plantation crops. On an analogy, the expression plantation crops would include coffee. Under the APMC Act also, under Schedule 8, coffee is included as a plantation crop. In all the aforesaid enactments, coffee has been defined to be a plantation crop.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">65. In fact, the Hon’ble Supreme Court in K.Pappireddiyar (supra) has observed that the nature of the land use to which it has been put to on the date of creation of security interest and the purpose to which it was set apart are matters which have to be taken into consideration. Even in the case of Blue Coast Hotels, it was observed that, the question whether the land is agricultural or not had to be determined on the basis of totality of facts and circumstances and not whether the land was shown to be agricultural in nature in the revenue entries per se.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">66. In the instant case, what has to be considered is, whether, land on which coffee is grown is agricultural land or not. The same has to be also in light of the relevant provisions of the State Acts which throw light as to how a coffee estate / plantation is construed.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">73. On a conjoint reading of Section 81 with Section 104 of Karnataka Land Reforms Act, what emerges insofar as land on which plantation crops, such as coffee are grown, such lands are exempted from the provisions of Sections 79-A, 79-B and 80 and they could be dealt with by way of sale, lease, gift, mortgage or exchange and the limitations mentioned in those sections do not apply to such land.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">74. More particularly, Sections 79-A, 79-B and 80 do not apply to the mortgage of any land or interest therein in favour of a financial institution when as a security for any loan or other facility is given by such financial institution for agricultural purposes. The expression “agricultural purposes” is given a wide meaning in Section 81 of the Land Reforms Act.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">76. Thus, coffee, being a plantation crop within the meaning of Section 2(A)(25) of the Land Reforms Act, is exempted from the provisions of Sections 79-A, 79-B and 80 as per Section 104 of the said Act. Also, under Section 81 of the said Act, the bar under Section 79-A, 79-B and 80 of the said Act would not apply in the case of mortgage of any land or interest therein to any financial institution as security for any loan or other facilities given by such financial institution for agricultural purposes. Hence, any land used for raising a plantation crop, if mortgaged to a financial institution, even if for non-agricultural purposes, could also be sold for enforcement of the said security.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">78. The Karnataka State Legislature has been very cautious in exempting only lands on which plantation crops are grown from the purview of Sections 79-A, 79-B and Section 80 of the Land Reforms Act, which means that, the bar contained in those sections would apply in the case of lands on which crops which are not in the nature of plantation crops are raised. Such lands only i.e., lands on which plantation crops are not raised, in our view, are agricultural lands for the purpose of Section 31(i) of the Act. This means the bar contained under Sections 79-A, 79-B and 80 of the Land Reforms Act, do not apply as per Section 104 of the said Act to plantation lands or land on which plantation crops are grown. Such lands would not come within the purview of agricultural land under Section 31(i) of SARFAESI Act.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">82. Thus, insofar as the State of Karnataka is concerned, having regard to Section 104 and Section 81 of the Land Reforms Act, lands on which the plantation crops are grown, being exempt from the restrictions pertaining to agricultural land mentioned in Section 79-A, 79-B and 80, in view of Section 104 and Section 81 of the said Act, would not come within the scope and ambit of the ‘agricultural land’ under Section 31(i) of the SARFAESI Act. In this regard, we find much force in the argument of Sri. Katti appearing for respondent-Bank.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">84. In this context, we also place reliance on the judgment of the Madras High Court in D.Ravichandran vs. The Manager, Indian Overseas Bank and another, CDJ 2006 MHC 789, (Writ Petition No.250/2006 disposed of on 02.02.2006), wherein it has been observed that clause (i) of Section 31 of the SARFAESI Act states that the provisions of the Act shall not apply to any security interest created in agricultural land. The Act does not define the term \"Agricultural Land\". The object of the Act is to improve the recovery process by vesting the powers with the banks and financial institutions powers to take possession of secured assets and sell them in case the borrowers commit default in repayment of the loan. If that is the subject of the enactment and object of the Act, the term \"agricultural land\" cannot be given such a liberal and wide construction or interpretation. Further, when the loan is borrowed from a bank and there is a default in repayment and measures are initiated under the SARFAESI Act, after issuance of notice and receipt of reply, questions such as the loan being agricultural loan or the land being the agricultural land may not be raised, particularly when the credit facility is in the nature of agricultural loan on agricultural lands being given as secured assets. This reasoning is in line with what we have deduced above.&nbsp; The same is also in consonance with the provisions of Land Reforms Act and Karnataka Agricultural Income Tax Act, 1957, which apply only to plantations crops.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">87. Thus, what emerges is that the land on which plantation crops are raised (coffee in the instant case), if mortgaged or given by way of a security to a financial institution to obtain a credit facility, whether for an agricultural purpose or for a non-agricultural purpose, the said security could be enforced and Section 31(i) of SARFAESI Act does not apply to such land. That means the financial institution can enforce the security created on such lands. We make it clear that this judgment concerns the interpretation of lands on which plantation crops are grown being construed as agricultural lands within Section 31(i) of the SARFAESI Act only as the lands in these cases concern plantation crops. We have not ventured to consider the matter in the context of non-plantation crops.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">88. Hence, in the instant case, the securities created in the coffee plantations can be enforced for the realization of the debts as coffee plantation would not come within the scope and ambit of agricultural land under Section 31(i) of the SARFAESI Act insofar as State of Karnataka is concerned.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Conclusions:</span></div><b style=\"\"><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\"><span style=\"background-color: rgb(255, 255, 0);\">89. In view of the aforesaid discussion, the following conclusions are arrived:</span></b></div><span style=\"background-color: rgb(255, 255, 0);\"><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\"><span style=\"background-color: rgb(255, 255, 0);\">(i) That in these cases, the writ petitions were maintainable under Article 226 of the Constitution of India;</span></b></div><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\"><span style=\"background-color: rgb(255, 255, 0);\">(ii) That the expression \'agricultural land\' in Section 31(i) of the SARFAESI Act, does not include land on which plantation crops are grown namely, cardamom, coffee, pepper, rubber and tea as defined in Section 2(A)(25) of the Land Reforms Act. Therefore, the measures initiated by the respondent banks in relation to the coffee estates in these appeals are not hit by Section 31(i) of the SARFAESI Act, as the said Act is applicable to land on which plantation crops are grown, including coffee plantation, in the instan</span></b><span style=\"font-size: 1.3125rem; font-weight: 500;\">t<b> cases.</b></span></div></span></b></h4><div><br></div>', '6c45cbd06172974880c61186ce44b079.PNG', '4e62f5f72d58fd5ff9c0bd7641db08a4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-29', 1, '', '', '2021-02-03 03:38:20', '2021-02-04 00:34:26'),
(409, 'GpdDtxYcUApQkcgyqjGhZEhIG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Section 319. Power to proceed against other persons appearing to be guilty of offence cannot be exercised in a casual manner on the basis of a stray statement of the complainant. Karnataka High Court. ', '<h4><b>Baswaraj and others vs State of Karnataka and another. </b></h4><h4><b>Writ Petition 202411/2019 decided on 27 January 2021.&nbsp;</b></h4><h4><b>Justice S. Vishwajith Shetty.&nbsp;<br></b></h4><h4><div style=\"text-align: left;\"><span style=\"text-align: justify; font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: left;\"><b><span style=\"text-align: justify; font-size: 1.3125rem;\">8.</span><span style=\"text-align: justify; font-size: 1.3125rem;\"> Section 319 of Cr.P.C is based upon the doctrine \"judex demnatur cum nocens absolvitur\" which means \"A judge is condemned when a guilty man is acquitted or absolved”. This is a salutary power enabling the court to discharge its obligation to the society by bringing the real culprits to stand trial. The object of this section is to not allow the culprits of an offence to get away unpunished. This is a power given to the court to check in those cases where the investigation agency deliberately does not array the real culprits as accused in the case.</span></b></div></h4><h4><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">9. It is a settled principle of law that power under Section 319 of Cr.P.C has to be exercised very sparingly, because it is an extraordinary power given to the court and cannot be exercised in a routine manner.</span><span style=\"font-size: 1.3125rem;\"> The said power is required to be exercised in appropriate cases wherever the court feels that the real culprits have been left out in the case. An order under Section 319 of Cr.P.C is required to be passed only after judicious application of the mind to the material available on record and the resultant order should be a well reasoned order. Before passing an order under Sections 319 of Cr.P.C the court is required to satisfy itself that on the basis of the evidence available on record, there are chances of convicting the proposed accused in the case. This subjective satisfaction of the court should be keeping in mind that the proposed accused persons have been left out in the case on the ground that there are no sufficient material to proceed against them.</span></b></div><span style=\"background-color: rgb(255, 255, 0);\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>11. For a mere asking by the complaint or by the prosecution the application under Section 319 of Cr.P.C cannot be allowed. If it is found that a deliberate attempt is made by the witnesses to implicate certain persons in the case then the court should not exercise its power under Section 319 of Cr.P.C.</b></span></div></span><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">12.</span><span style=\"font-size: 1.3125rem;\"> In the case on hand, it is not in dispute that in the charge sheet the name of the petitioners has been left out. During the course of examination-in-chief of complainant/PW.1, he has stated that even the petitioners have assaulted him and participated in the crime along with the other accused. Even before completion of the examination-in-chief of this witness, learned APP has filed application under Section 319 of Cr.P.C and on the basis without there being an application of judicious mind, without there being a reasoned order the learned Magistrate has passed the impugned order in a very casual manner. This is not permissible in law. T</span><span style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 0);\">he learned Judge is required to exercise power&nbsp; under&nbsp; Section 319 of Cr.P.C on appreciation of reasonable material on record and not on the basis of one stray statement of the complainant. The impugned order suffers with all these legal infirmities and therefore it cannot be sustained.</span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br></b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Petition allowed.&nbsp;</b></span></div></h4>', 'f674c0c0e7436e9889940d5466426f50.jpeg', '0ad119376dbfd770583ae06cea48be38.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-01', 1, '', '', '2021-02-03 04:05:25', '2023-02-01 13:41:33'),
(2623, '7xeRZeIcXoL0oVGmaVXzSsoML', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Dispute regarding classification of candidate in a particular category while processing the applications for the posts also falls within the jurisdiction of the Administrative Tribunal. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ameena Afroj Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P 200032 of 2023 decided on 12 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Anant Ramanath Hedge.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Whether the challenge to the decision, classifying the\r\npetitioner as a General Merit candidate, rejecting the\r\npetitioner’s claim to be under category 2-B/KA-HK, for\r\nselection to the post of a government school teacher, is\r\noutside the jurisdiction of the Tribunal constituted under\r\nthe Administrative Tribunals Act, 1985?.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 02. The question referred to above has arisen as\r\nthe decision of the Deputy Director of Public Instructions,\r\nRaichur is under challenge in this writ petition under Article\r\n226 of the Constitution of India. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. The petitioner would contend that the\r\nimpugned order classifying the petitioner in the General\r\nMerit category is passed pursuant to the petitioner’s\r\napplication for the post of a teacher and the impugned\r\norder does not deal with ‘recruitment’ or ‘matters\r\nconcerning recruitment’. The question whether the\r\npetitioner is to be considered under the general merit\r\ncategory or category 2-B/KA-HK, cannot be adjudicated by\r\nthe Tribunal.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 15. The answer to this question is to be traced in\r\nSection 15 (1) (a) of the Act, keeping in mind the object of\r\nthe Act. The expression ‘recruitment’ and ‘matters <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">concerning recruitment’ found in Section 15 (1) (a) are not\r\ndefined in the Act. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Thus, the Court has to apply the plain\r\ngrammatical meaning attached to the above-said\r\nexpressions, unless such exercise leads to absurdity. The\r\nCambridge dictionary defines the word ‘recruitment’ as\r\nthe process of finding people to work for company or beco\r\nme a new member of an organization:\r\nThe Oxford dictionary defines the expression ‘recruitment\'\r\nas the act or process of finding new people to join a\r\ncompany, an organization, the armed forces, etc,</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. In the present scheme of our Constitution,\r\nrecruitment under the State is governed by the reservation\r\npolicy of the State. The process involves reserving a\r\ncertain specified percentage of seats based on reservation\r\npolicy. Thus, the employer is under obligation to process\r\nthe applications for recruitment based on criteria fixed\r\nunder the reservation policy. While processing the\r\napplications for the posts, if a decision is taken to classify\r\nthe applicant in a particular category, as happened in the\r\ncase of the petitioner, ‘the decision taken’ is indeed a\r\ndecision taken in the process of recruitment.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. For the reasons assigned above, there is no\r\ndifficulty to hold that the expressions ‘recruitment’ and\r\n\'matters concerning recruitment’ found in Section 15 (1)\r\n(a) of the Act, are wide enough to cover all the stages of\r\nrecruitment, starting from the publication of notification\r\ninviting applications to the Civil services and Civil Posts, to\r\nthe scrutiny of applications and the decisions thereon,\r\nconducting examinations, announcement of the results and\r\nissuance of orders of appointment. Such being the ambit of\r\nSection 15 (1)(a) of the Act, the impugned decision to\r\nclassify the petitioner under the ‘General Merit’ category is\r\na decision, the correctness of which can be reviewed by\r\nthe Tribunal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. Combined reading of Sections 15 and 28 of the\r\nAct, leads to an inevitable conclusion that the High Court\r\ncannot exercise the jurisdiction as a Court of first instance\r\nin respect of the matters over which the Tribunals under\r\nthe Act are empowered to exercise the jurisdiction. The Act\r\nnot only provides for the jurisdiction of the Tribunals under\r\nSection 15 but also provides for the exclusion of the\r\njurisdiction of several Courts including the High Court. The\r\nSeven Judges Constitution Bench of the Hon’ble Apex\r\nCourt had an occasion to consider the scope of Sections 15\r\nand 28 of the Act, in the case of L.Chandrakumar, and\r\nthe Apex court has held that the Administrative Tribunals\r\nunder the Act, have jurisdiction to consider all the matters\r\ncovered under the Act, including the constitutional validity <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the provisions relating to the recruitment of employees\r\nand regulations governing service conditions. In terms of\r\nthe law laid in the aforementioned case, the Tribunal is the\r\nforum of first instance in respect of matters covered under\r\nthe provisions of the Act.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. Considering the object which is explicit in the\r\npreamble and the jurisdiction conferred under Section 15\r\nr/w Section 28 of the Act, there is no room for any doubt\r\nthat the Administrative Tribunal, has the jurisdiction to\r\nconsider all matters concerning the recruitment and the\r\nmatters concerning recruitment which in its ambit includes\r\nall decisions from the date of publication of notification\r\ninviting applications for the posts to the orders of\r\nappointment.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 24. The next point for consideration is whether the\r\npetitioner has made out a case to entertain the writ\r\npetition despite an alternative remedy being available.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. The learned counsel for the petitioner submits\r\nthat the orders passed pursuant to the notification dated\r\n21.03.2022, have been questioned before, the Principal\r\nBench at Bengaluru and Bench at Dharwad and in those\r\nmatters interim orders are passed. It is to be noticed that\r\nin those matters, the objections not raised relating to the\r\nmaintainability of the writ petition, and questions relating\r\nto maintainability are not decided in those cases.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 27. As far as the contention that the petitioner is\r\nenforcing her fundamental right before this court is\r\nconcerned, this Court is of the view that no such grounds\r\nare forthcoming in the writ petition. The Tribunal is\r\ncompetent to deal with all the grounds raised in the\r\npetition and in terms of the law laid down in the case of L.\r\nChandrakumar referred supra, the Tribunal is the forum\r\nof first instance and not the High Court to adjudicate the\r\ndisputes falling under Section 15 of the Act<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. For the aforementioned reasons, this Court is\r\nof the opinion that the writ petition is not maintainable\r\nbefore this Court. Accordingly, the writ petition is\r\ndismissed as not maintainable. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '24b274b6022500e6851a7d4bbea0724e.JPG', '0b34112a802d4433eb8ec93a57d01763.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-02', 1, '', '', '2023-02-01 13:56:28', '2023-02-02 08:02:56'),
(410, '5IgPndNRTZrwizVUqzxTBf4dn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sajjan Singh vs State of Rajasthan AIR 1965 SC 845', '<h4>Sajjan Singh vs State of Rajasthan AIR 1965 SC 845. PDF document enclosed.&nbsp;</h4>', 'bd1dc9286d387bddedb908defefdeccc.jpeg', 'd351d155693213e3c53abaaa72c08ee9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1964-10-30', 1, '', '', '2021-02-03 05:20:13', '2021-02-03 05:20:13');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(411, '2xCsT2sVvI6XjUCVcHrDydrGY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Amendment of pleadings. Doctrine of relation back from date of suit will not apply when court allows amendment subject to plea of limitation. Supreme Court. ', '<h4><span style=\"font-weight: bolder;\">L.C. Hanumanthappa v. H.B. Shivakumar. Civil Appeal No. 6595 of 2015 decided on August 26, 2015</span><br>Justice Dr. A.K. Sikri and Justice Rohington Fali Nariman<br><br><b>Judgment LInk:&nbsp;</b><br><a href=\"https://main.sci.gov.in/jonew/judis/42888.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/42888.pdf</a><br><span style=\"font-weight: bolder;\"><br></span><p></p><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">Reported in (2016) 1 SCC 33</span><span style=\"font-size: 1.3125rem;\">2</span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Relevant paragraphs:</b></span></div> <span style=\"font-weight: bolder;\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; font-weight: bolder;\">15</span><span style=\"font-size: 1.3125rem; font-weight: 500;\">. As early as in the year 1909, the Bombay High Court in Kisandas Rupchand v. Rachappa Vithoba Shilwant8, held as follows: (ILR p. 655)</span></div></span><i><div style=\"text-align: justify;\"><i style=\"font-size: 1.3125rem;\">“… All amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties … but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?”</i></div></i><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">16. This statement of the law was expressly approved by a three-Judge Bench of this Court in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil9 SCR pp. 603-04.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">17. Twenty years later, the Privy Council in Charan Das v. Amir Khan10, stated the law as follows: (IA p. 262)</span></div><i><div style=\"text-align: justify;\"><i style=\"font-size: 1.3125rem;\">“… That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases … where such considerations are outweighed by the special circumstances of the case….”</i></div></i><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">18. This statement of the law was cited with approval in L.J. Leach &amp; Co. Ltd. v. Jardine Skinner &amp; Co.11 SCR pp. 450-51.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">21. Similar is the case with Pirgonda Hongonda Patil9. Here again it was held that the amendment did not really introduce a new fact at all, nor did the defendant have to meet a new claim set up for the first time after the expiry of the period of limitation.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">22. In K. Raheja Constructions Ltd. v. Alliance Ministries12, this Court was seized with a belated application to amend a plaint filed for permanent injunction. Seven years after it was filed, an amendment application was moved seeking to amend the plaint to one for specific performance of contract. In turning down such amendment on the ground that it was time-barred, this Court held: (SCC pp. 18-19, para 4)</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“4. It is seen that the permission for alienation is not a condition precedent to file the suit for specific performance. The decree of specific performance will always be subject to the condition to the grant of the permission by the competent authority. The petitioners having expressly admitted that the respondents have refused to abide by the terms of the contract, they should have asked for the relief for specific performance in the original suit itself. Having allowed the period of seven years to elapse from the date of filing of the suit, and the period of limitation being three years under Article 54 of the Schedule to the Limitation Act, 1963, any amendment on the grounds set out, would defeat the valuable right of limitation accruing to the respondent.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">24. In Siddalingamma v. Mamtha Shenoy14, this Court held while allowing an amendment of the plaint in a case of bona fide requirement of the landlord that the doctrine of relation back would apply to all amendments made under Order 6 Rule 17 of the Code of Civil Procedure, which generally governs amendment of pleadings, unless the court gives reasons to exclude the applicability of such doctrine in a given case. No question of limitation was argued on the facts in that case which would therefore be in the category of cases which would follow the line of judgments which state that costs can usually compensate for an amendment that is made belatedly but within the period of limitation, it not being an exceptional case such as those contained in the two judgments L.J. Leach &amp; Co. Ltd.11 and Pirgonda Hongonda Patil9 cited above.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">25. In Sampath Kumar v. Ayyakannu15, this Court was faced with an application for amendment made 11 years after the date of the institution of the suit to convert through amendment a suit for permanent prohibitory injunction into a suit for declaration of title and recovery of possession. This Court held: (SCC pp. 562-64, paras 7 &amp; 9-11)</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“7. In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial court, it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff’s revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new&nbsp; suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">28. In Prithi Pal Singh v. Amrik Singh17, this Court was concerned with a suit claiming pre-emption under the Punjab Pre-emption Act, 1913. An amendment was sought to the plaint claiming that the plaintiff was entitled to relief as a co-sharer of the suit property. This Court after considering some of its earlier judgments held: (SCC p. 583, para 11)</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“11. In our opinion, there is no merit in the submissions of the learned counsel. A reading of the order18 passed by this Court shows that the application for amendment filed by Respondent 2 was allowed without any rider/condition. Therefore, it is reasonable to presume that this Court was of the view that the amendment in the plaint would relate back to the date of filing the suit. That apart, the learned Single Judge19 has independently considered the issue of limitation and rightly concluded that the amended suit was not barred by time.”</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">29. Applying the law thus laid down by this Court to the facts of this case, two things become clear. First, in the original written statement itself dated 16-5-1990, the defendant had clearly put the plaintiff on notice that it had denied the plaintiff’s title to the suit property. A reading of an isolated paragraph in the written statement, namely, Para 2 by the trial court on the facts of this case has been correctly commented upon adversely by the High Court in the judgment under appeal. The original written statement read as a whole unmistakably indicates that the defendant had not accepted the plaintiff’s title. Secondly, while allowing the amendment, the High Court in its earlier judgment dated 28-3-2002 had expressly remanded the matter to the trial court, allowing the defendant to raise the plea of limitation. There can be no doubt that on an application of Khatri Hotels (P) Ltd.3, the right to sue for declaration of title first arose on the facts of the present case on 16-5-1990 when the original written statement clearly denied the plaintiff’s title. By 16-5-1993 therefore a suit based on declaration of title would have become time-barred. It is clear that the doctrine of relation back would not apply to the facts of this case for the reason that the court which allowed the amendment expressly allowed it subject to the plea of limitation, indicating thereby that there are no special or extraordinary circumstances in the present case to warrant the doctrine of relation back applying so that a legal right that had accrued in favour of the defendant should be taken away. This being so, we find no infirmity in the impugned judgment of the High Court. The present appeal is accordingly dismissed.</span></div><span style=\"font-weight: bolder;\"><div style=\"text-align: justify;\"><span style=\"font-weight: bolder; font-size: 1.3125rem;\">Judgments referred to in this case.&nbsp;</span></div></span><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">1</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">L.C. Hanumanthappa v. H.B. Shivakumar, RFA No. 415 of 1999, decided on 28-3-2002 (KAR)</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">2</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">H.B. Shivakumar v. L.C. Hanumanthappa, 2015 SCC OnLine Kar 3860</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">3</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">(2011) 9 SCC 126 : (2011) 4 SCC (Civ) 484</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">4</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">(1929-30) 57 IA 325 : AIR 1930 PC 270 : (1930) 32 LW 338</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">5</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">ILR (1930) 8 Rang 645 : (1930-31) 58 IA 1 : (1931) 33 LW 30</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">6</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">(1930-31) 58 IA 125 : (1931) 33 LW 707</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">7</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">AIR 1960 SC 335 : (1960) 2 SCR 253</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">8</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">ILR (1909) 33 Bom 644</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">9</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">1957 SCR 595 : AIR 1957 SC 363</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">10</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">(1919-20) 47 IA 255 : (1921) 13 LW 49</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">11</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">1957 SCR 438 : AIR 1957 SC 357</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">12</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">1995 Supp (3) SCC 17</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">13</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">(2001) 6 SCC 163</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">14</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">(2001) 8 SCC 561</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">15</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">(2002) 7 SCC 559</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">16</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">(2010) 14 SCC 596 : (2012) 1 SCC (Civ) 777</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">17</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">(2013) 9 SCC 576 : (2013) 4 SCC (Civ) 473</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">18</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">Bakshish Singh v. Prithi Pal Singh, 1995 Supp (3) SCC 577</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">19</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">Prithi Pal Singh v. Amrik Singh, 2008 SCC OnLine P&amp;H 267 : (2008) 3 RCR (Civ) 504</span></div><p></p></h4><div><br></div>', 'f3c92996678c8b6283e897056e36d264.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2015-08-26', 1, '', '', '2021-02-03 14:43:43', '2021-02-04 00:23:10'),
(412, 'X6Sv0NJBzdxRLZEqlHt3xjQHp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'The Constitution of India is not a statute but a fountainhead of all statutes. A workman who cannot raise individual dispute under the Industrial Disputes Act can approach the High Court under Article 226. Karnataka High Court. ', '<h4><b>Gururaj R and others vs The Union of India and others.&nbsp;Writ Petition 50039/2015 decided on 7 October 2020</b><br><b><br>Judgment Link: <br></b><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357995/1/WP50039-15-07-10-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357995/1/WP50039-15-07-10-2020.pdf</a><br><b><br></b><p><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant paragraphs:</b></div><p><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">16.2</b><span style=\"font-size: 1.3125rem;\"> A bare reading of Section 2(k) of the Industrial Disputes Act would make it clear that an individual dispute would not be maintainable under the statute, which further makes it clear that an Organization or Union may maintain a dispute but the choice is of the Organisation or Union to take up the dispute or otherwise. An individual Workman does not have a right to pursue his remedy under Section 2(k) of the said Act. The only remedy for individual industrial dispute is under Section 2A of the said Act which is confined to discharge, dismissal or retrenchment or termination. Thus, the petitioners have no remedy in terms of either under Section 2(k) or Section 2A of&nbsp; the said Act.</span></div><span style=\"background-color: rgb(255, 255, 0);\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>16.3 It is a trite law that a citizen cannot be rendered remediless if a statute does not provide a remedy against infringement of his right. The controversy becomes maintainable before this Court in such a situation under Article 226 of the Constitution of India as “the Constitution of India is not a statute, but a fountainhead of all statutes”. </b></span><span style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">The Apex Court in the case of </span><i style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255); font-weight: bold;\">Common Cause vs Union of India </i><span style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">reported in </span><i style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255); font-weight: bold;\">(1999) 6 SCC 667,</i><span style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\"> has held as follows:&nbsp;</span></div></span><i><div style=\"text-align: justify;\"><i style=\"font-size: 1.3125rem;\">“39. Under Article 226 of the Constitution, the High Court has been given the power and jurisdiction to issue appropriate writs in the nature of mandamus, certiorari, prohibition, quo warranto and habeas corpus for the enforcement of fundamental rights or for any other purpose. Thus, the High Court has jurisdiction not only to grant relief for the enforcement of fundamental rights but also for “any other purpose” which would include the enforcement of public duties by public bodies. So also, the Supreme Court under Article 32 has the jurisdiction to issue prerogative writs for the enforcement of fundamental rights guaranteed to a citizen under the Constitution.</i></div></i><i><div style=\"text-align: justify;\"><i style=\"font-size: 1.3125rem;\">40. Essentially, under public law, it is the dispute between the citizen or a group of citizens on the one hand and the State or other public bodies on the other, which is resolved. This is done to maintain the rule of law and to prevent the State or the public bodies from acting in an arbitrary manner or in violation of that rule. The exercise of constitutional powers by the High Court and the Supreme Court under Articles 226 and 32 has been categorised as power of “judicial review”. Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of fundamental rights guaranteed by the Constitution. With the expanding horizon of Article 14 read with other articles dealing with fundamental rights, every executive action of the Government or other public bodies, including instrumentalities of the Government, or those which can be legally treated as “Authority” within the meaning of Article 12, if arbitrary, unreasonable or contrary to law, is now amenable to the writ jurisdiction of this Court under Article 32 or the High Courts under Article 226 and can be validly scrutinised on the touchstone of the constitutional mandates.</i></div></i><i><div style=\"text-align: justify;\"><i style=\"font-size: 1.3125rem;\">41. In a broad sense, therefore, it may be said that those branches of law which deal with the rights/duties and privileges of the public authorities and their relationship with the individual citizens of the State pertain to “public law”, such as constitutional and administrative law, in contradistinction to “private law” fields which are those branches of law which deal with the rights and liabilities of private individuals in relation to one another.</i></div></i><i><div style=\"text-align: justify;\"><i style=\"font-size: 1.3125rem;\">59. The Founding Fathers placed no limitation or fetters on the power of the High Court under Article 226 of the Constitution except self-imposed limitations. The arm of the Court is long enough to reach injustice wherever it is found. The Court as sentinel on the qui vive is to mete out justice in given facts. On finding that either the workmen were engaged in violation of the provisions of the Act or were continued as contract labour, despite prohibition of the contract labour under Section 10(1), the High Court has, by judicial review as the basic structure, a constitutional duty to enforce the law by appropriate directions. The right to judicial review is now a basic structure of the Constitution by a catena of decisions of this Court starting from Indira Nehru Gandhi v. Raj Narain [1975 Supp SCC 1&nbsp; :&nbsp; AIR&nbsp; 1975&nbsp; SC&nbsp; 2299]&nbsp; &nbsp;to Bommai&nbsp; &nbsp;case [(1994) 3 SCC 1].&nbsp; It&nbsp; would, therefore, be necessary that instead of leaving the workmen in the lurch, the Court properly moulds the relief and grants the same in accordance with law.”</i></div></i><i><div style=\"text-align: justify;\"><i style=\"font-size: 1.3125rem;\">60. The public law remedy given by Article 226 of the Constitution is to issue not only the prerogative writs provided therein but also any order or direction to enforce any of the fundamental rights and “for any other purpose”. The distinction between public law and private law remedy by judicial adjudication gradually marginalised and became&nbsp; &nbsp; obliterated.&nbsp; &nbsp; In LIC v. Escorts Ltd. [(1986) 1 SCC 264] this Court (in SCC para 102, p. 344) had pointed out that the difficulty will lie in demarcating the frontiers between the public law domain and the private law field. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the question and the host of other relevant circumstances. Therein, the question was whether the management of LIC should record reasons for accepting the purchase of the shares? It was in that fact-situation that this Court held that there was no need to state reasons when the management of the shareholders by resolution reached the decision. This Court equally pointed out in other cases that when the State\'s power as economic power and economic entrepreneur and allocator of economic benefits is subject to the limitations of fundamental rights, a private Corporation under the functional control of the State engaged in an activity hazardous to the health and safety of the community, is imbued with public interest which the State ultimately proposes to regulate exclusively on its industrial policy.&nbsp; It would also be subject to the same limitations as held in M.C. Mehta v. Union of India [(1987) 1 SCC 395 : 1987 SCC (L&amp;S) 37] .</i></div></i><i><div style=\"text-align: justify;\"><i style=\"font-size: 1.3125rem;\">61. The legal right of an individual may be founded upon a contract or a statute or an instrument having the force of law. For a public law remedy enforceable under Article 226 of the Constitution, the action of the authority needs to fall in the realm of public law — be it a legislative act of the State, an executive act of the State or an instrumentality or a person or authority imbued with public law element. The question requires to be determined in each case. However, it may not be possible to generalise the nature of the action which would come either under public law remedy or private law field nor is it desirable to give exhaustive list of such actions. As held by this Court in Calcutta Gas Co. (Proprietary) Ltd. v. State of W.B. [AIR 1962 SC 1044 : 1962 Supp (3) SCR 1] (AIR para 5) that if the legal right of a manager of a company is denuded on the basis of recommendation by the Board of Management of the company, it would give him right to enforce his right by filing a writ petition under Article 226 of the Constitution. In Mulamchand v. State of&nbsp; M.P. [AIR 1968 SC 1218 : 1968 Mah LJ 842] this Court had held that even though the contract was void due to non-compliance of Article 229, still direction could be given for payment of the amount on the doctrine of restitution under Section 70 of the Act, since the State had derived benefit under the void contract. The&nbsp; same&nbsp; view&nbsp; was&nbsp; reiterated&nbsp; in State of W.B. v. B.K. Mondal &amp; Sons [AIR 1962 SC 779] (AIR at p. 789) and in New Marine Coal Co. (Bengal) (P) Ltd. v. Union of India [(1964)&nbsp; 2&nbsp; SCR&nbsp; 859&nbsp; :&nbsp; AIR&nbsp; 1964&nbsp; Supreme Court 152]. In Gujarat State Financial Corpn. v. Lotus Hotels (P) Ltd. [(1983) 3 SCC 379] a direction was issued to release loan to the respondent to comply with the contractual obligation by applying the doctrine of promissory estoppel. In Mahabir Auto Stores v. Indian Oil Corpn. [(1990) 3 SCC&nbsp; &nbsp; 752]&nbsp; &nbsp; contractual&nbsp; &nbsp; obligations were enforced under public law remedy of Article 226 against the instrumentality of the State. In Shrilekha Vidyarthi v. State of U.P. [(1991) 1 SCC 212 : 1991 SCC (L&amp;S) 742] contractual obligations were enforced when public law element was involved. Same judicial approach is adopted in other jurisdictions, namely, the House&nbsp; of&nbsp; Lords&nbsp; in Gillick v. West Norfolk and Wisbech Area Health Authority [1986 AC 112 : (1985) 3 All ER 402 : (1985) 3 WLR 830, HL] wherein the House of Lords held that though the claim of the plaintiff was negatived but on the anvil of power of judicial review, it was held that the public law content of the claim was so great as to make her case an exception to the&nbsp; &nbsp;general&nbsp; &nbsp;rule.&nbsp; &nbsp; Similarly&nbsp; &nbsp; in Roy&nbsp; (Dr) v. Kensington and Chelsea and Westminster Family Practitioner Committee [(1992) 1 AC 624 : (1992) 1 All ER 705 : (1992) 2 WLR 239, HL] the House of Lords reiterated that though a matter of private law is enforceable by ordinary actions,&nbsp; &nbsp;a&nbsp; &nbsp;court&nbsp; &nbsp;also&nbsp; &nbsp;is&nbsp; &nbsp;free&nbsp; &nbsp;from the constraints of judicial review and that public law remedy is available when the remuneration of Dr Roy was sought to be curtailed. In LIC v. Consumer Education and Research Centre [(1995) 5 SCC 482] this Court held that each case may be examined on its facts and circumstances to find out the nature and scope of the controversy. The distinction between public law and private law remedy has now become thin and practically obliterated.\"</i></div></i><b><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">16.4 </b><span style=\"font-size: 1.3125rem; font-weight: 500;\">The Apex Court again in the case of </span><i style=\"font-size: 1.3125rem;\">Public Services Tribunal Bar Assn vs State of U.P. </i><span style=\"font-size: 1.3125rem; font-weight: 500;\">reported in </span><i style=\"font-size: 1.3125rem;\">(2003) 4 SCC 104</i><span style=\"font-size: 1.3125rem; font-weight: 500;\">, which reads as follows:</span></div></b><i><div style=\"text-align: justify;\"><i style=\"font-size: 1.3125rem;\">“39. ...An employee is not left without any remedy. Judicial review of an order regarding which the jurisdiction of the Tribunal is barred would be available by approaching the High Court by filing petition under Article 226 or 227 of the Constitution of India.”</i></div></i><i><div style=\"text-align: justify;\"><i style=\"font-size: 1.3125rem;\">In terms of the law laid down by the Apex Court in the afore-extracted judgment, the facts obtaining in the case at hand will have to be noticed to arrive at a conclusion with regard to maintainability of the petition.\"</i></div></i><b><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">16.5 </b><span style=\"font-size: 1.3125rem; font-weight: 500;\">It is a fact, that the petitioners are Workmen and they have a dispute with regard to their wages. The petitioners – Workmen did file applications before the Conciliation Officer seeking redressal of their grievance. The Conciliation Officer&nbsp; having rejected the applications for want of maintainability, the Workmen have filed the present writ petition in terms of the afore-extracted mandate of the statute. An individual dispute for redressal of the grievance of the Workmen is not available and the grievance of the Workmen cannot be left to the mercy of the Union as the Union may or may not espouse the cause. Therefore, in the light of the law laid down by the Apex Court in the afore-extracted judgments, the writ petition filed by the Workmen under Article 226 of the Constitution of India is maintainable and the Workmen - petitioners cannot be left remediless.</span></div></b><span style=\"background-color: rgb(255, 255, 0);\"><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Therefore, I answer point No.1 holding that writ petition is maintainable in the facts and circumstance of the case.</span></div></span></p></p></h4><div><br></div>', '3169ce02bf866ccca392aba42aed8716.jpg', '1aff6f3d53c319dbd8fbac98192a324d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-07', 1, '', '', '2021-02-03 21:43:02', '2021-02-04 00:18:08'),
(413, 'LlxKhsg64H9Adp2coNBQsqB6d', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Penal Code. Criminal conspiracy is generally hatched in secrecy and direct evidence is difficult to obtain or access. It can be proved only during trial. Proceedings cannot be quashed under Section 482 Criminal Procedure Code. Karnataka High Court', '<h4><div style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">N.R.Santosh vs State of Karnataka and another. Criminal Petition 2327/2019 decided on 1 February 2021.&nbsp;</b></div><div style=\"text-align: justify;\"><br></div><p style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Judgment Link:</b><br></span><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/362084/1/CRLP2327-19-01-02-2021.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/362084/1/CRLP2327-19-01-02-2021.pdf</a><b><br></b><b style=\"font-size: 1.3125rem;\"><br>Relevant paragraphs:</b><b style=\"font-size: 1.3125rem;\"><br></b><b style=\"font-size: 1.3125rem;\">14.</b><span style=\"font-size: 1.3125rem; font-weight: 500;\"> No doubt, learned counsel for the petitioner referred to the Judgment of the Apex Court in </span><i style=\"font-size: 1.3125rem; font-weight: 500;\"><b>GHCL Employees Stock Option Trust vs India Infoline Limited (2013) 4 SCC 505 </b></i><span style=\"font-size: 1.3125rem; font-weight: 500;\">would submit that, the Apex Court held that, while summoning the accused in a criminal case, criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. In the case on hand, the learned Magistrate has applied his mind and the order reflects specifically what are the offences are applicable thereto. He recorded his satisfaction with regard to the existence of prima facie case on the basis of specific allegations made in the charge sheet and also it is specific that he has perused the charge sheet, its enclosures and also other materials on record. When such being the case, the very contention of the learned counsel for the petitioner is that the learned Magistrate has not applied his mind, cannot be accepted.</span><b><br></b><b style=\"font-size: 1.3125rem;\">18.</b><span style=\"font-size: 1.3125rem; font-weight: 500;\"> In these circumstances, this Court would like to refer to the Judgment of the Apex Court in the case of </span><i style=\"font-size: 1.3125rem;\">Gulam Sarbar vs State of Bhiar (now Jharkhand) </i><span style=\"font-size: 1.3125rem; font-weight: 500;\">reported in</span><i style=\"font-size: 1.3125rem;\"> (2014) 3 SCC 401, </i><span style=\"font-size: 1.3125rem; font-weight: 500;\">in this Judgment, the Apex Court categorically held that, </span><b style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 0);\">criminal conspiracy is generally hatched in secrecy, thus direct evidence is difficult to obtain or access. Offence can be proved by adducing circumstantial evidence or by necessary implication. Hence, it is clear that even though there was no direct evidence when the criminal conspiracy is alleged against this petitioner, it is settled law that the same is generally hatched in secrecy and direct evidence is difficult to obtain or access. The criminal conspiracy has to be proved by collecting the material through the circumstantial evidence. Hence, it requires trial. At this juncture, the Court cannot invoke Section 482 of Cr.P.C, when the specific allegation is made against this petitioner </b><span style=\"font-size: 1.3125rem; font-weight: 500;\">that he had conspired with accused No.2. It is also important to note that the call details of this petitioner and accused was also collected and on record it discloses that there were two calls between the accused and this petitioner prior to the incident i.e., on 5th and 8th of the particular month and the incident was taken place on 11.05.2017. No doubt, there is no more number of calls but the case has to be proved only on the circumstantial evidence since the prosecution relies upon particularly the statements of CW.1 and also CW.41. CW.41, is a friend of the complainant and also this petitioner. Hence, it requires full-pledged trial to prove the conspiracy as alleged against this petitioner under Section 120B of IPC.</span><br><span style=\"font-size: 1.3125rem;\">20. Having perused the materials available on record, I do not find any force in the contention of the learned counsel for the petitioner that the proceedings initiated against&nbsp; accused No.1 has to be quashed.<br></span><span style=\"font-size: 1.3125rem;\">Petition dismissed.&nbsp;</span></p></h4><p style=\"text-align: justify; \"><br></p>', '5910e375b12fd58ed09c682a1b373d7a.jpg', '937e2720b188205e45e140fe07ae8ac4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-01', 1, '', '', '2021-02-03 22:39:41', '2021-02-04 00:16:34'),
(414, '4BRKQBNuLrC37iZSUXBn8CKJo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'I. C. Golaknath and Others vs State Of Punjab and another. AIR 1967 1643', '<h3 style=\"text-align: center; \">Judgment in PDF format enclosed. </h3>', '8696271757ca34164c375eee503eb3f0.jpeg', 'bbe098ee5a42d99bb2e793cc4d03f7d4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1967-02-27', 1, '', '', '2021-02-03 23:26:28', '2021-02-03 23:27:16'),
(416, 'KOcjJTBvmF5QZZ8EhyMj545yC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Specific Relief Act. Bar under Section 22 against grant prayer not sought for does not curtail power of the appellate Order XLI Rule 33 CPC. Court can refund of sale consideration even in the absence of prayer. Karnataka High Court. ', '<h4><b>Susheela M Parekh vs M.S. Manoharan. Regular First Appeal 278/2012 decided on 1 February 2021. Justice S.Sujatha and Justice Sachin Shankar Magadum </b></h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/362167/1/RFA278-12-01-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/362167/1/RFA278-12-01-02-2021.pdf</a><br><b>Relevant paragraphs: 28</b>. The respondent/plaintiff apart from seeking larger relief of specific performance, in the alternative, has also sought for additional relief which is culled out as follows: <i>\"ii. Further, this Honourable court may be pleased to grant to the plaintiff such other relief/s as this Honourable court deems fit to grant to the plaintiff in the circumstances of the case.\"</i><br>29. On reading of the additional relief, we are of the view that they are wide enough to embrace the alternate relief of refund. We are of the firm view that the advance amount should not be allowed to be forfeited, more particularly when the appellant/defendant has not suffered any loss. On the contrary, the advance amount of Rs.10,00,000/- is utilized by the appellant/defendant for the last 14 years. In the present case on hand, the respondent/plaintiff succeeded before the Court of first instance and had the benefit of a decree.  Now  we have reversed the judgment and decree and we have denied the relief of specific performance by holding that it is inappropriate and not a fit case to grant discretionary relief of specific    performance.<span style=\"white-space:pre\">	</span>In this background, where respondent/plaintiff is successful in securing the decree and if he were to lose before the Appellate Court, the question that would arise before this Court is whether refund of money can be considered in absence of specific prayer seeking refund as contemplated under Section 22(2) of the Specific Relief Act, 1963. A question would also arise as to whether in absence of specific wordings in regard to alternate prayer on refund, the Court can exercise discretion under Order VII Rule 7 and under Order XLI Rule 33 of Code of Civil Procedure to do substantial justice to the parties.<br>30. The appellant/defendant has not disputed the agreement. Even payment of Rs.10,00,000/- is not in dispute. In that view of the matter, we are of the view that there is no bar to consider and grant refund even if not  specifically worded in the alternate prayer by the respondent/plaintiff. In the present suit, all the facts giving rise to the alternative  claim are fully stated in the prayer column and the fact that respondent/plaintiff has not formally asked for the relief on   the alternate claim is no bar for granting of relief on that  basis.   In an identical case in the case of Y.R. Mahadev .vs. K. Dayalan reported in 1997(4) KLJ 264, the learned Single Judge of this Court has held that the trial Court ought to have exercised jurisdiction suo motu under the Specific Relief Act and ought to have ordered for refund of the advance amount. Further, the learned Single Judge was of the view that it is a well known principle that no  one should be  allowed  to  enrich oneself at the costs of another. In the above said case, the plaintiff had sought for an alternate relief to grant such other reliefs as the Court may deem fit to grant in the circumstances of the case. This Court by having recourse to Section 21(5) of the Specific Relief Act, held that it is just and proper to direct the owners to refund the advance amount with interest. This principle is also applicable to the present set of facts.<br>31. This Court needs to invoke provision of Order XLI Rule 33 of CPC. This Rule is new and is based on Order LVIII Rule 4 of Rules of Supreme Court in England. It is wider than Order XLI Rule 4 of CPC. Object of the Rule is to enable the Appellate Court to do complete justice between the parties.  The sweep of the power under Rule 33 is wide enough to determine any questions. The only constraint on the power of Appellate Court is that questions raised must properly arise  out    of    the    judgment    of    the    lower    Court.<span style=\"white-space:pre\">	</span>The respondent/plaintiff has proved due execution of suit agreement and payment of Rs.10,00,000/-. He had the benefit of decree of specific performance of contract. We have reversed the same. Hence, question of refund on account of reversal of decree arises out of judgment of the lower Court. Even in absence of specific prayer in regard to refund, we  deem it fit to grant refund by exercising power under Order  XLI Rule 33 of CPC. Further, we have also held that alternate relief in the present case embraces relief of refund. The question that would arise is, whether Court can order for refund in absence of prayer. The bar under Section 22(2) is against the respondent/plaintiff. But such a bar would not operate against Court and curtail its power under Order XLI Rule 33 of CPC.<br>32. For the foregoing conclusions, in order to avoid gross injustice to the respondent/plaintiff, we would deem it fit to direct the appellant/defendant to refund the advance amount of Rs.10,00,000/- with simple interest at the rate of 6% p.a. from the date of suit till realisation.<br> </h4><div><br></div>', '21f37b7501d4834b6f4aa7baadbb9f38.PNG', '46afaef8c4d40b3e7acba81de2fae6f2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-01', 1, '', '', '2021-02-04 04:29:48', '2021-02-04 04:30:20'),
(417, 'Dhm4fVsZ66BPKe1xTgkIBp1oD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Non-recording or delayed recording or improper recording of statement under Section 161-3 is a serious irregularity which is incurable. Conviction under NDPS Act set aside on this ground. Karnataka High Court. ', '<h4><b>Chemansab vs State of Karnataka.&nbsp;</b></h4><h4><b>Criminal appeal 200021/2017 decided on 3 February 2021.&nbsp;</b></h4><h4><b>Justice S. Vishwajith Shetty<br></b><br>From the appreciation of the evidence of the witnesses examined by the prosecution, it is found that statements of all these witnesses under Section 161(3) of the Code do not bear any date. Further, statement under Section 161(3) of the Code of PW-1, who is the star witness of the prosecution around whom the entire case of the prosecution revolves, has not at all been recorded. Statements of the witnesses under Section 161 of the Code recorded by the Police during the course of investigation plays a major role during the course of trial. After lodging of the FIR and registering the case, investigation commences with the Investigating Officer visiting the scene of crime, drawing panchanama, seizing any incriminating articles found at the spot, recording the statements of the witnesses, arrest of accused, recovery, etc., and this part of investigation is covered under Sections 161 and 162 of the Code and the credibility of the witnesses, who are examined before the court, depends largely on this part of investigation. The charge sheet is prepared by the Investigating Officer based on this material and information collected by him during the course of investigation.<br><b><br></b></h4><h4><b>26.</b> Statement under Section 161 of the Code forms a part of the charge sheet and this statement can be used by the accused for the purpose of contradicting the witnesses in the manner as provided under Section 145 of the Evidence Act and the right of accused to cross- examine the witness, who has made a statement under Section 161(3) of the Code is a right guaranteed to the accused under Section 162 of the Code. Even without recording the statement of a witness under Section 161(3) of the Code, the said witness can be examined before the court, but the evidence of such a witness has to be appreciated very carefully and evidence of such witness shall carry less value and credibility.<br><b><br></b></h4><h4><b>27. </b>In the case of <i><b>Gopal Krishna -vs- State AIR 1964 ALLAHABAD 481 at para-22 it is held as under: \"</b>22. It is obvious that though the police are not bound to make a record of the statement of the witnesses under S.161 as a matter of obligation, it is their duty to do so when the witness is a material witness for unfolding the prosecution story. It is also clear that a ƒailure on their part to comply with the requirements oƒ Section 161(3), though does not render the subsequent statement oƒ the witness at the trial inadmissible, it does greatly impair the value oƒ the evidence oƒ that witness. I ƒully agree with this view. It&nbsp; is&nbsp; the duty oƒ an Investigating Oƒƒicer to record the statement oƒ eye-witnesses and oƒ other material witnesses. In a case like this where there is a solitary eye-witness there can be no justiƒication whatsoever ƒor not recording his statement and the conduct oƒ the Investigating Oƒƒicer in the absence oƒ any plausible explanation must be viewed with suspicion.\"<br></i><b><br></b></h4><h4><b>28. </b>The High Court of <i><b>Madhya Paradesh in the case reported in Panna Fodaliya -vs- The State of Madhya Pradesh&nbsp; 1970 Cri.l.J.1180</b></i>&nbsp; at para-10 has held as follows: <i><b>\"10. By not recording the statement oƒ Jagdish during investigation the appellant has been denied a very valuable opportunity oƒ testing the veracity oƒ the witness with reƒerence to his earliest version, and, thereƒore, it is diƒƒicult to attach any weight or value to the statement oƒ Jagdish in court.\"</b></i><br><b style=\"background-color: rgb(255, 255, 0);\"><br></b></h4><h4><b style=\"background-color: rgb(255, 255, 0);\">29. It is a settled principle of law that non-recording of statement under Section 161(3) of the Code or delayed recording of statement under Section 161(3) of the Code or improper recording of statement under Section 161(3) of the Code is a serious irregularity which is incurable. This irregularity gives rise to infer that prosecution has procured such statement to suit their case and therefore, such statement loses its credibility. When delay in recording statement under Section 161 of the Code itself casts cloud of suspicion on the case of the prosecution, non-recording of such statement or recording of such statement without mentioning the date, totally discredits the evidence of these witnesses. By not recording statement under Section 161(3) of the Code, prosecution takes the accused by surprise and his right to contradict this witness is virtually lost. Material contradictions and material omissions are fatal to the case of the prosecution. Accused will be handicapped to this extent when a witness is cross-examined by him whose statement under Section 161(3) of the Code is not recorded. A witness, who contradicts his earlier statement and makes improvement in his subsequent statement or when there are omissions in his statement, such witness loses credibility.</b><br><b><br></b></h4><h4><b>30. </b>The credibility of a witness in criminal proceedings is tested before the court vis-à-vis the statement made by him under Section 161(3) of the Code. Statement under Section 161(3) of the Code is a vital document in criminal prosecution and the court after scrutinizing the same can even discharge the accused. Section 162(1) of the Code contemplates that statement under Section 161 of the Code should not be signed nor the statement could be used for any inquiry or trial, except for the purpose as provided under the said section. Therefore, the accused has an indefeasible right to use the statement under Section 161(3) of the Code to shake the credibility of the witness.<br><b><br></b></h4><h4><b>31. </b>The statement of a witness, who is not examined under Section 161(3) of the Code, is likely to seriously prejudice and affect the case of the accused and evidence of such witness in the absence of valid reasons by the Investigating Officer for not recording his statement must be viewed with suspicion, otherwise it would result in miscarriage of justice. In the case on hand, statement of PW-1 under Section 161(3) of the Code is not at all recorded. In the complaint lodged by him, the particulars of the credible information, raid, compliance of Section 42, procedure followed during search and seizure, etc., are not found. Under the circumstances, the evidence of this witness loses its credibility and unless it is corroborated by an independent witness, the same cannot be based for holding the accused guilty of the alleged offences.</h4><div><br></div>', '85dc3aa89f516501a760ece897bd6f98.jpeg', 'daacf5c99a37a4d28405f5f94c125dde.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-17', 1, '', '', '2021-02-04 21:17:08', '2023-01-17 15:08:52');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(420, 'vAdTggIXaLHVrYCUSioNb4Mlk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prevention of Money Laundering Act. Freezing of the Bank account must be preceded by an order in the file recording the belief as provided under Section 17. Supreme Court', '<h4><b>OPTO Circuit India Ltd vs Axis Bank & Orrs. Ciminal Appeal 102/2021 decided on 3 February 2021. Chief Justice S.A. Bobde, Justice A.S.Bopanna and Justice V.Ramasubramanian. </b></h4><h4><b>Judgment Link: </b><a href=\"https://main.sci.gov.in/supremecourt/2020/18562/18562_2020_31_1501_25891_Judgement_03-Feb-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/18562/18562_2020_31_1501_25891_Judgement_03-Feb-2021.pdf</a><b><a href=\"https://main.sci.gov.in/supremecourt/2020/18562/18562_2020_31_1501_25891_Judgement_03-Feb-2021.pdf\" target=\"_blank\"></a></b></h4><h4><b>Relevant paragraph: 11. </b>The scheme of the PMLA is well intended.  While it seeks   to   achieve   the   object   of   preventing   money laundering   and   bring   to   book   the   offenders,   it   also safeguards   the   rights   of   the   persons   who   would   be proceeded against under the Act by ensuring fairness in procedure.   Hence   a   procedure,   including   timeline   is provided so as to ensure that power is exercised for the purpose to which the officer is vested with such power and the Adjudicating Authority is also kept in the loop. In the instant case, the procedure contemplated under Section 17 of PMLA to which reference is made above has not   been   followed   by   the   Officer   Authorised.   Except issuing the impugned communication dated 15.05.2020 to AML Officer  to   seek   freezing,   no   other   procedure contemplated in law is followed.   In fact, the impugned communication does not even refer to the belief of the Authorised   Officer   even   if   the   same   was   recorded separately.  It only states that the Officer is investigating the case and seeks for relevant documents, but in the tabular column abruptly states that the accounts have to be ‘debit freezed/stop operations’.  <b style=\"background-color: rgb(255, 255, 0);\">It certainly is not the requirement that the communication addressed to the Bank itself should contain all the details.  But what is necessary is an order in the file recording the belief as provided under Section 17(1) of PMLA before the communication is issued and thereafter the requirement of Section 17(2) of PMLA after the freezing is made is complied.</b>   There is no other material placed before the Court to indicate compliance of Section 17 of PMLA, more particularly recording the belief of commission of the act of   money   laundering   and   placing   it   before   the Adjudicating   Authority   or   for   filing   application   after securing the freezing of the account to be made.  In that view, the freezing or the continuation thereof is without due compliance of the legal requirement and, therefore, not sustainable. </h4><h4><br></h4><p><br></p><p><br></p>', 'ce0b8a246ad6d0d869cce8714c912ca0.jpg', '9839eaf43590e9b9b9955f3480f9581f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-03', 1, '', '', '2021-02-05 02:04:11', '2021-02-05 02:11:14'),
(421, 'rZMTsRaJs3FhLVnHiwbFpUAYM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Insolvency and Bankruptcy Code 2016. Person having only security interest over the assets of corporate debtor -though a  secured creditor- is not a financial creditor. Supreme Court ', '<h4><br><div style=\"text-align: center;\">Phoenix ARC Pvt Ltd vs Ketulbhai Ramubhai Patel. Civil Appeal 5146/2019 decided on 3 February 2021. Justice Ashok Bhushan, Justice R. Subhash Reddy and Justice M.R. Shah<br></div>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2019/20381/20381_2019_37_1501_25825_Judgement_03-Feb-2021.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">https://main.sci.gov.in/supremecourt/2019/20381/20381_2019_37_1501_25825_Judgement_03-Feb-2021.pdf</a></h4><h4>21. Whether the corporate debtor owed any financial debt to the appellant so as to treat the appellant as financial creditor is the question to be answered. The definition of ‘financial debt’ as contained in Section 5(8) contains the expressions “means” and<br>“includes”. The definition begins with the words “financial debt” means \'a debt alongwith interest, if any, which is disbursed against the consideration for the time value of money and includes\'... The main part of the definition, thus, provides that financial debt means a debt “which is disbursed against the consideration for the time value of money”. The definition in the second part gives instances which also includes financial debt. A bare perusal of Section 5(8)(i) indicates that it contemplates amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses(a) to (h) of clause (8). Sub-clause (i) uses two expressions “guarantee” and “indemnity” for any of the items referred to in sub-clauses (a) to (h).<br>22. Chapter VIII of the Indian Contract Act, 1872 deals with “Of Indemnity and Guarantee”. Section 124 defines “Contract of indemnity” and Section 126 defines “Contract of guarantee”.<span style=\"background-color: rgb(255, 255, 0);\"> As clear from the definition a contract of guarantee is a contract to perform the promise, or discharge the liability, of a third person in case of his default. The present is not a case where the corporate debtor has entered into a contract to perform the promise, or discharge the liability of borrower in case of his default. The Pledge Agreement is limited to pledge 40,160 shares as security. The corporate debtor has never promised to discharge the liability of borrower. The Facility Agreement under which the borrower was bound by the terms and conditions and containing his obligation to repay the loan security for performance are all contained in the Facility Agreement. A contract of guarantee contains a guarantee “to perform the promise or discharge the liability of third person in case of his default”. Thus, key words in Section 126 are contract “to perform the promise”, or “discharge the liability”, of a third person. Both the expressions “perform the promise” or “discharge the liability” relate to “a third person”. The Pledge Agreement dated 10.01.2012 does not contain any contract that the promise which was made by the borrower in the Facility Agreement dated 12.05.2011 to discharge the liability of debt of Rs.40 crores is undertaken by the corporate debtor. It was the borrower who had promised to repay the loan of Rs.40 crores in Facility Agreement dated 12.05.2011 and it was borrower who had undertaken to discharge the liability towards lender. The Pledge Agreement dated 10.01.2012 does not contain any contract that corporate debtor has contracted to perform the promise, or discharge the liability of the third person.</span><br>24.The Pledge Agreement and undertaking given, entered between Assignor and corporate debtor cannot be termed as contract of guarantee within the meaning of Section 126. The expression “pledge” is separately dealt with in the Indian Contact Act, 1872. Section 172 defines \'pledge\'.<br>26. The word \'guarantee\' and \'indemnity\' as occurring in Section 5(8)(i) has not been defined in the Code. Section 3 sub-section (37) of the Code provides that words and expressions used but not defined in the Code but defined in the Indian Contract Act, 1872 shall have the meanings respectively assigned to them.<br></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">30.This Court held that a person having only security interest over the assets of corporate debtor, even if falling within the description of \'secured creditor\' by virtue of collateral security extended by the corporate debtor, would not be covered by the financial creditors as per definitions contained in sub-section (7) and (8) of Section 5. What has been held by this Court as noted above is fully attracted in the present case where corporate debtor has only extended a security by pledging 40,160 shares of GEL. The appellant at best will be secured debtor qua above security but shall not be a financial creditor within the meaning of Section 5 sub-sections (7) and (8).</span></h4>', 'b78c190f0c10f9acce878e6a00ab394c.jpg', 'ce691efee6f5fe3c35301e6e671d83cb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-03', 1, '', '', '2021-02-05 02:53:16', '2021-02-05 03:01:25'),
(419, 'krKuW4m2iLRd87X7bL30whqD7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Appeal against acquittal. If the view taken by the trial court is a possible view appellate court can not reverse the acquittal to that of the conviction. Supreme Court', '<h4><b>N.Vijayakumar vs State of Tamil Nadu. Criminal Appeal 100­101 of 2021 decided on 3 February 2021.</b><br>Justice Ashok Bhushan, Justice R. Subhash Reddy and Justice M.R. Shah <br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/20676/20676_2020_37_1502_25825_Judgement_03-Feb-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/20676/20676_2020_37_1502_25825_Judgement_03-Feb-2021.pdf</a><br><b>Relevant paragraphs: 10.</b> Mainly   it   is   contended   by   Sri   Nagamuthu,   learned   senior counsel appearing for the appellant that the view taken by the trial court is a “possible view”, having regard to evidence on record.  It is submitted that the trial court has recorded cogent and valid reasons in support of its findings for acquittal.  Under Section 378, Cr.PC, no differentiation is made between an appeal against acquittal and the appeal against conviction.  By considering the long line of earlier cases this Court in the judgment in the case of Chandrappa & Ors. v. State of Karnataka (2007) 4 SCC 415 has laid down the general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal.<br><b>11</b>. By applying the above said principles and the evidence on record in the case on hand, we are of the considered view that having regard to material contradictions which we have already noticed above and also as referred to in the trial court judgment, it can be said that acquittal is a “possible view”.  By applying the ratio as laid down by this Court in the judgments which are stated supra, even assuming another view is possible, same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence alleged....In the case of  Hakeem  Khan  &  Ors.  v.  State of  Madhya Pradesh  (2017)  5   SCC   719  this  Court  has considered   powers   of appellate court for interference in cases where acquittal is recorded by trial court.  In the said judgment it is held that if the “possible view” of the trial court is not agreeable for the High Court, even then such “possible view” recorded by the trial court cannot be interdicted.   It is further held that so long as the view of trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, verdict of trial court cannot be interdicted and the High court cannot supplant over the view of the trial court.<br><br><br></h4><p><br></p>', '925ab313c6120e74dd3f9db04ac264ee.png', '7536a5a147f5adad7a68fddd7c7f7e74.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-03', 1, '', '', '2021-02-05 00:50:12', '2021-02-05 00:50:55'),
(422, 'ZKMnNrX67PBPFzOpNtbzNzr5M', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Acid attack on woman is a serious and grave offence. Karnataka High Court cancels bail granted to accused by the trial court. ', '<h4><b>Swapna vs The State of Karnataka. Criminal Petition 6696/2020 decided on 29 January 2021.</b></h4><h4><br><b>Judgement: </b><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/362467/1/CRLP6696-20-29-01-2021.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/362467/1/CRLP6696-20-29-01-2021.pdf&nbsp;</a></h4><h4><br><b>Relevant paragraphs: </b><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>8. </b>…. The fact that the complainant and her child were subjected to acid attack has been investigated and filed the charge sheet. The medical certificates, which are wound certificates, show the very nature of injury sustained by the complainant. The photographs, which have been produced before the Court also shows the gravity of the offence and the acid was thrown on the face of the complainant and spilled over the body of the complaint and also on her child. It is also important to note that the complaint averment discloses that an attempt was made to outrage the modesty of the complainant, who is none other than the sister- in-law. The fact that the accused is also the brother-in-law of&nbsp; the complainant. It is also not in dispute that the brother of the accused was also passed away and the victim-complainant is the sister-in-law, who is living along with her children after the death of her husband.</span></div><div style=\"text-align: justify;\"><b style=\"font-weight: bold; font-size: 1.3125rem;\">9.</b><span style=\"font-size: 1.3125rem;\">Having considered the material aspects particularly the Wound Certificate when the complainant had suffered 20 to 25% of burn injuries on account of acid attack and also the child of the complainant, the learned District Judge ought to have taken note of the gravity of the offences and also the nature of the act committed by the accused. The learned Sessions judge failed to take note of the said fact into consideration and while exercising the discretion.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>10.</b></span><span style=\"font-size: 1.3125rem;\">Having considered the materials on record and also the discussion made above, I am of the opinion that it is a fit case to cancel the bail granted by the learned Sessions Judge invoking under Section 482 of Cr.P.C.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">&nbsp;</span></div>&nbsp;</h4><p><br></p>', '344eaa1a0deb07976d6f11d78c20caa5.jpg', 'bffc75ed7422ca86c73b51aa9fadc710.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-01', 1, '', '', '2021-02-05 04:14:25', '2021-02-05 22:15:17'),
(423, 'RC7KABm5x4NHeLCYzAbkOw0yU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Section 125. Medical incapacity of the wife to conceive is not a ground to refuse maintenance. Such a plea is vengeful. Karnataka High Court. ', '<h4>R.D.Rajeev vs Roopa. Revision Petition Family Court 133/2014 decided on 25 January 2021. Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/362553/1/RPFC133-14-25-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/362553/1/RPFC133-14-25-01-2021.pdf</a><br>Relevant paragraphs: 14. The second point of argument of the learned counsel for the petitioner is that, the respondent (wife) by suppressing her medical incapacity to conceive or to lead a happy marital life, has ruined the life of the petitioner, as such, he is not liable to pay any maintenance. The said argument of the learned counsel, at the threshold itself is liable to be rejected, since the said attitude of the husband if he maintains the same, is nothing but a revenge of a person against another person for no valid reason. Such a revengeful attitude finds no place in the law, rather, it diminishes the character or conduct of the petitioner who has exhibited such kind of revengeful attitude. In addition to that, there is nothing on record to show that, she had intentionally suppressed any vital aspect from her husband only to cause any harm to him or ruin his life. In such a situation, merely because the husband thinks that his life was ruined, it cannot be a reason for depriving the wife who claims&nbsp; to be unable to maintain herself. As such, the said point of argument of the learned counsel for the petitioner, is also not acceptable.<br>Giving maintenance to the wife is not merely a pleasure for the husband but it is the duty of the husband to maintain his wife, who herself is unable to maintain herself. In such a situation, if the wife has satisfied that she has got a valid reason to live separately or live away from her husband and when, she is unable to maintain herself, then it would be the duty of the husband to maintain her.<br>&nbsp;</h4><div><br></div>', '690415a2449b16da62b7287b353ed5aa.jpg', '4c3b80d8ccd4f7e393d429c4a9414cb2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-25', 1, '', '', '2021-02-06 02:36:08', '2021-02-06 02:36:08'),
(424, 'xMi4HfGw2j7GLxeolQonHqdjU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Property Tax liability to the Municipal Corporation. Any person disputing the claim is referable only to owners of the property and no one else. Appeal by person in permissive possession not maintainable. Karnataka High Court. ', '<h4>Shobha vs Hubli Dharwad Municipal Corporation. Civil Revision Petition 1116/2010 decided on 15 January 2021. </h4><h4>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/362151/1/CRP1116-10-15-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/362151/1/CRP1116-10-15-01-2021.pdf</a><br>Relevant paragraphs. Statutory provision. Section 113 of the Karnataka Municipal Corporation Act, 1976. “Notwithstanding&nbsp; anything contained&nbsp; &nbsp;in sections 61A or 62 or 444 , any person disputing the claim in the notice of demand served&nbsp; under&nbsp; sub- section (1), may within thirty days after the service of such notice, appeal in such manner subject to such conditions&nbsp; and to such authority as may be prescribed”.<br>9. In the above provision “any person disputing the claim” is referable only to the persons who are primaril liable to pay the tax as adumbrated under sub-clause ( b) of Sub-section(1 ) of Section 112 of the Act&nbsp; and&nbsp; none&nbsp; else. This view of mine receives support from the wordings employed in Section 113 (3) of the Act to the effect “…, any person disputing the claim in the notice of demand served under sub-section (1)….” Sub- section (1) of Section 113 of the Act contemplates that “….,&nbsp; the&nbsp; corporation may&nbsp; cause to be served upon the person liable for&nbsp; payment&nbsp; of&nbsp; the same a notice of demand ……’’. Admittedly the notice of demand was addressed to the owner of the premises who is unquestionably liable to&nbsp; pay&nbsp; taxes under clause ( b) of sub- section (1) of Section 112 of the&nbsp; Act. If, therefore, petitioner has paid the taxes, she has&nbsp; done so not on her own account and that is&nbsp; for&nbsp; and&nbsp; on behalf of the owner. The&nbsp; present petitioner on the plain terms of Section 112(1 )( b) of the&nbsp; Act, does not come within the ambit of “any&nbsp; person disputing the claim” in view of the&nbsp; admitted position that&nbsp; she is not any one of the persons mentioned in the said provision, namely, Section 113 (3 ) of the Act, who are liable to pay the tax under the&nbsp; Act and&nbsp; therefore, the&nbsp; appeal at the instance of the present petitioner who had paid the&nbsp; tax on behalf and towards the account of the owner of the premises, is not at all maintainable as rightly held by the learned District Judge in the impugned order. In that view of the matter, there is absolutely no error or illegality in the order passed by the learned District Judge and therefore, there is no&nbsp; merit in&nbsp; the present petition and same is liable to be dismissed.&nbsp;<br></h4><p><br></p>', '851390532fef42816ebf75564b93be44.jpg', '2a60ff177ad48e62c3fad1068990262b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-15', 1, '', '', '2021-02-06 03:13:00', '2021-02-06 03:13:00'),
(425, 'k0E96nReluOkSg9gvuq8PnrHW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. Life imprisonment means imprisonment for complete span of life. Consecutive sentences in case of conviction for several offences at one trial does not arise. Application for clarification of sentence is not maintainable. Karnataka High Court', '<h4><span style=\"font-size: 14px;\">Telugu Banjigara Thammaiah and another vs State of Karnataka. Criminal Appeal (application in) disposed on 22 January 2021. Justice B. Veerappa and Justice Hemant Chandangoudar. Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/362751/1/CRLA663-13-22-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/362751/1/CRLA663-13-22-01-2021.pdf</a></span></h4><h4><span style=\"font-size: 14px;\">Relevant paragraphs: 16. It is not in dispute that in view of the judgment of conviction and order of sentence passed by the trial Court and affirmed by this Court stated supra, the appellants have been convicted and sentenced to undergo imprisonment for life and rigorous imprisonment for two years for the offences punishable under the provisions of Sections 302 and 201 of IPC. In view of the fact that life imprisonment means imprisonment for full and complete span of life, the question of consecutive sentences in case of conviction for several offences at one trial does not arise. Therefore, in case a person is sentenced for conviction of several offences including one that of life imprisonment, the proviso to Section 31(2) of Cr.P.C., shall come into force and no consecutive sentence can be imposed. Unfortunately, the Jail Authorities have sought clarification by their letter dated 29.5.2020 to the Principal District and Sessions Court, Kodagu with regard to punishment imposed by the trial Court. The learned Principal District and Sessions Court ought not to have given opinion or clarified in an disposed off matter as the matter is ceased and the trial Court has no power to clarify in a ceased matter as it becomes functus officio. Inspite of the same, the learned Principal District and Sessions Court , Kodagu, Madikeri, has clarified that the order of sentence imposed on the accused has to be treated as consecutively. Based on the said clarifications dated 13.11.2020 and 15th June, 2020, the present application is filed.</span></h4><h4><span style=\"font-size: 14px;\">17. It is very strange that the accused being convicted for imprisonment of life and rigorous imprisonment for two years with fine and default sentences for the offences punishable under Sections 302 and 201 of IPC., the Jail Authorities sought clarification which is nothing but review. It is for the Jail Authorities to recommend or for the State to take necessary steps under the provisions of Section 432 Cr.P.C. Once the matter is disposed off convicting the accused and is confirmed by this Court, the learned Principal District and Sessions Judge ought not to have clarified and that is not a ground or cause of action for the accused to file the present application under Section 482 Cr.P.C., and seeking an order on sentence to run concurrently instead of consecutively as held by the trial Court by the impugned judgment of conviction and order of sentence dated 7th July, 2012 passed in S.C.No.40/2008 is nothing, but modification of the order of sentence passed by the trial Court and affirmed by this Court, without there being any valid ground for modification of the judgment passed by this Court. The fact that&nbsp; the appellants seeking modification of the sentence dated 7th July, 2012 to run concurrently instead of consecutively in S.C.NO.40/2008 is nothing but review of the judgment passed by this Court and without recalling the judgment dated 8th May, 2018 passed by the Co-ordinate Bench of this Court dismissing the present appeal on merits and confirming the impugned judgment and order of conviction passed by the trial Court, the present application filed by the accused-appellants is not&nbsp; maintainable. Even assuming that the application is filed for recalling of the earlier judgment dated 8th May, 2018 passed by this Court, it is nothing but review of the earlier judgment, which is impermissible, in view of the provisions of Section 362 of Cr.P.C&nbsp;</span></h4><h4><br></h4>', 'be98cf1f2f9772d52b0ece13b44fb72e.PNG', 'c0f64c7b3f63612181a36712deedd2f4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-22', 1, '', '', '2021-02-06 03:42:25', '2021-02-13 12:40:44'),
(426, 'dSRJDLlOZeCV5JOmOb5606TOe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Fraudulent registration of sale deeds by impersonation. Sub-Registrar who is a trustee of statutory power cannot plead innocence to the crime. Karnataka High Court. ', '<h4>Bhuvaneshwar vs State of Karnataka. Criminal Petition 101394/2020 decided on 29 January 2021.&nbsp;<br>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/362748/1/CRLP101394-20-29-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/362748/1/CRLP101394-20-29-01-2021.pdf</a><br>Relevant paragraphs: 9. A plain reading of Rule 73 of the Karnataka Registration Rules, 1965 shows that a Sub- Registrar cannot be fastened with the duty to hold an elaborate enquiry into the validity of a document brought&nbsp; to him for registration, understandably, because in&nbsp; the very nature of things, during the normal course of performance of his duties, he is only expected to go&nbsp; through the contents of the same before registering the same and no more. But that, however, cannot be understood as saying, without of course giving leave to common sense, that a Sub-Registrar should register a document blindfolded when on the face of&nbsp; it,&nbsp; it&nbsp; is disclosed that executant/presenter of the document for registration is neither the owner nor the power of attorney holder of the owner and the one shown as the owner is a mere witness. If the complainant had signed it as a consenting witness as it was sought to&nbsp; be&nbsp; contended before me, for one thing; documents do not bear such a recital, for another; if such was the purport, in terms of&nbsp; Rule 71 ( i)( d), ( iii) and ( iv) of the Rules, the Sub- Registrar (petitioner herein) was required to obtain and affix the photographs of such assenting person to the documents and also to&nbsp; the&nbsp; thumb&nbsp; impression&nbsp; register. The same applies if someone had impersonated the complainant and petitioner ought to have affixed his photograph to the documents and the thumb impression register. Petitioner has done neither; at least it was not claimed before me that he has done so.<br>12. Petitioner is a public servant. That public servants as holders of public power are in the <span style=\"background-color: rgb(255, 255, 0);\">nature of “trustees” of such power is an overworked phrase, nay, almost a cliché. The precautionary principles engrafted in Rules 71 and 74 are measures of “due diligence” for the benefit of public. A public servant who&nbsp; is&nbsp; repository of&nbsp; such power bypassing or turning a Nelson’ s eye to&nbsp; the same – and allegation against the petitioner in this case is he has colluded with the rest of the accused - in the performance of his duties and as a consequence fraud and public mischief ensues, could be committing an ‘illegal omission’ and could be an abettor to&nbsp; the&nbsp; commission of&nbsp; the offences and what is worse, could be an active collaborator in the commission of the offences&nbsp; alleged, both of which can make him a ‘ particeps criminis’. Truth- like fraud – has to be unravelled in a properly held investigation.</span><br><br></h4>', 'ef6d5c9798887a11afc2761836ab2404.jpg', '7d02cdca512d842b43c63db06f91a303.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-29', 1, '', '', '2021-02-06 04:23:40', '2021-02-06 04:23:40'),
(427, 'XsI766zCmYwZVwAfX6R5OaFZ7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Section 498A. Proceeding manifestly attended with mala fide and is maliciously instituted for wreaking vengeance on the accused to spite him due to personal grudge - the proceedings are liable to be quashed. Supreme Court.', '<h4>Sunder Babu v. State of T.N., (2009) 14 SCC 244<br>Criminal Appeal No. 773 of 2003, decided on February 19, 2009<br>Justice Dr. Arijit Pasayat, Justice L.S.Panta and Justice P. Sathasivam<br>Judgment Link:<a href=\"https://main.sci.gov.in/jonew/judis/33908.pdf\" target=\"_blank\"> https://main.sci.gov.in/jonew/judis/33908.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Full Judgment:</span> Justice Dr. Arijit Pasayat.— The challenge in this appeal is to the order passed by the learned Single Judge of the Madras High Court rejecting the petition filed under Section 482 of the Code of Criminal Procedure, 1973 (in short “the Code”).<br>2. The background facts in short are as follows: Sukanya (hereinafter referred to as “the complainant”) was married with Sunder Babu,&nbsp; Appellant 1. Appellant 2, Mr Venugopal and Mrs Ramathilagam, Appellant 3 are the parents of Sunder Babu. A-4, Rajinishree is his sister and Andalammal is his maternal grandmother. The marriage took place on 25-11-1998. Appellant 1 left for USA on 1-7-1999.<br>3. The complaint was filed on 6-2-2000 alleging commission of the offence punishable under Section 498-A of the Penal Code, 1860 (in short “IPC”) and Section 4 of the Dowry Prohibition Act, 1961 (in short “the DP Act”). The complaint was treated as the first information report and investigation was undertaken. On completion of the investigation a charge-sheet was filed on 8-6-2000. A divorce petition was filed by the complainant which appears to have been granted ex parte on 12-7-2001.<br>4. According to the appellants, complainant Sukanya has remarried on 24-8-2002. It was the stand of the appellant that the complaint filed was nothing but an abuse of the process of law. The allegations were unfounded. There was no basis for making the allegations. Appellant 1 had left for USA after about six months of the marriage. Long thereafter on 6-2-2000, the complaint was filed. No explanation for the delayed lodging of the complaint was offered.<br>5. In essence, it was submitted that the continuance of the proceedings will be an abuse of the process of law. The prosecuting agency before the High Court contested the petition filed under Section 482 CrPC taking the stand that a bare perusal of the complaint discloses commission of alleged offences and therefore it is not a case which needed to be allowed. The High Court accepted the stand of the respondent State and dismissed the application.<br>6. In support of the appeal learned counsel for the appellant submitted that the factual scenario indicated above and even a cursory glance of the complaint petition shows that the same was nothing but an attempt to falsely implicate the accused persons. Learned counsel for the respondent State supported the judgment.<br>7. Though the scope for interference while exercising jurisdiction under Section 482 CrPC is limited, but it can be made in cases as spelt out in Bhajan Lal1. The illustrative examples laid down therein are as follows: (SCC pp. 378-79, para 102)<br>“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.<br>(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.<br>&nbsp;(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.<br>(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.<br>(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.<br>(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.<br>(7) Where, a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”<br>Even a cursory perusal of the complaint shows that the case at hand falls within Category (7) of the illustrative parameters highlighted in Bhajan Lal case1.<br>8. The parameters for exercise of power under Section 482 have been laid down by this Court in several cases.<br>“19. The section does not confer any new power on the High Court. It only saves the inherent power which the court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui&nbsp; concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice<br>20. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.”<br>(See Janata Dal v. H.S. Chowdhary2, Raghubir Saran (Dr.) v. State of Bihar3, Minu Kumari v. State of Bihar4 and Priya Vrat Singh v. Shyam Ji Sahai5.)<br>9. Consequently, the appeal deserves to be allowed. The proceedings in Criminal Petition No. CC No. 385 of 2000 pending before the Judicial Magistrate, Palladam, are quashed. The appeal is allowed.<br>———<br>†<span style=\"white-space:pre\">	</span>From the Judgment and Order dated 10-3-2003 of the Hon’ble High Court of Judicature at Madras in Criminal OP No. 6510 of 2003<br>1<span style=\"white-space:pre\">	</span>State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426<br>2<span style=\"white-space:pre\">	</span>(1992) 4 SCC 305 : 1993 SCC (Cri) 36<br>3<span style=\"white-space:pre\">	</span>AIR 1964 SC 1<br>4<span style=\"white-space:pre\">	</span>(2006) 4 SCC 359 : (2006) 2 SCC (Cri) 310<br>5<span style=\"white-space:pre\">	</span>(2008) 8 SCC 232 : (2008) 3 SCC (Cri) 463 : (2008) 11 Scale 20<br></h4><p><br></p>', 'edcc42fa79c248d315160fe751b3ba5c.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2009-02-19', 1, '', '', '2021-02-06 04:59:05', '2021-02-06 05:01:05'),
(428, 'ddDvb5L0kpCkk4UlaCJ1bwySZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Advocate. Professional misconduct. Mere negligence or error of judgment would not amount to professional misconduct. Gross negligence must be established. Supreme Court. ', '<h4>T.A. Kathiru Kunju v. Jacob Mathai,&nbsp; Civil Appeal No. 3860 of 2007, decided on February 16, 2017. Reported in (2017) 5 SCC 755. Judgment Link:</h4><h4>Relevant paragraphs: 11. The Constitution Bench, in the matter of P, an Advocate, In re1 has ruled that mere negligence or error of judgment on the part of an Advocate would not amount to professional misconduct. It has been further held therein that error of judgment cannot be completely eliminated in all human affairs and mere negligence may not necessarily show that the Advocate who is guilty of it can be charged with misconduct. The Constitution Bench, as is demonstrable, has drawn a distinction between “negligence” and “gross negligence”. We think it appropriate to reproduce the said passage. It is as follows: (AIR p. 1316, para 7)</h4><h4>“7. … But different considerations arise where the negligence of the Advocate is gross. It may be that before condemning an Advocate for misconduct, courts are inclined to examine the question as to whether such gross negligence involves moral turpitude or delinquency. In dealing with this aspect of the matter, however, it is of utmost importance to remember that the expression “moral turpitude or delinquency” is not to receive a narrow construction. Wherever conduct proved against an Advocate is contrary to honesty, or opposed to good morals, or is unethical, it may be safely held that it involves moral turpitude. A wilful and callous disregard for the interests of the client may, in a proper case, be characterised as conduct unbefitting an Advocate. In dealing with matters of professional propriety, we cannot ignore the fact that the profession of law is an honourable profession and it occupies a place of pride in the liberal professions of the country. Any conduct which makes a person unworthy to belong to the noble fraternity of lawyers or makes an Advocate unfit to be entrusted with the responsible task of looking after the interests of the litigant, must be regarded as conduct involving moral turpitude. The Advocates-on-Record like the other members of the Bar are Officers of the Court and the purity of the administration of justice depends as much on the&nbsp; integrity of the Judges as on the honesty of the Bar. That is why in dealing with the question as to whether an Advocate has rendered himself unfit to belong to the brotherhood at the Bar, the expression “moral turpitude or delinquency” is not to be construed in an unduly narrow and restricted sense.”</h4><h4>12. On a careful reading of the aforesaid passage, it is quite clear that concept of “gross negligence” cannot be construed in a narrow or a restricted sense. It is because honesty of an Advocate is extremely significant. The conduct of an Advocate has to be worthy so that he can be called as a member of the noble fraternity of lawyers. It is his obligation to look after the interest of the litigant when he is entrusted with the responsible task in trust. An Advocate has to bear in mind that the profession of law is a noble one. In this regard, we may fruitfully refer to what has been stated in Ministry of Information &amp; Broadcasting, In re3: (SCC p. 634, para 20)</h4><h4>“20. The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behaviour. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tireless role played by the stalwarts in the profession to strengthen them. They took their profession seriously and practised it with dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible.”</h4><h4>13. Slightly recently in Dhanraj Singh Choudhary v. Nathulal Vishwakarma4, it has been observed: (SCC p. 747, para 23)</h4><h4>“23. The legal profession is a noble profession. It is not a business or a trade. A person practising law has to practise in the spirit of honesty and not in the spirit of mischief-making or money-getting. An advocate’s attitude towards and dealings with his client have to be scrupulously honest and fair.”</h4><h4>14. There can be no doubt that nobility, sanctity and ethicality of the profession has to be kept uppermost in the mind of an Advocate. Keeping that primary principle in view, his conduct has to be weighed. There the approach of appreciating the evidence brought on record and the yardstick to be applied, become quite relevant. A three-Judge Bench in P.D. Khandekar2 while dealing with the scope of an appeal preferred under Section 38 of the Act, ruled that in an appeal under Section 38, this Court in a general rule, cannot interfere with the concurrent finding of fact by the Disciplinary Committee of the Bar Council of India and the State Bar Council unless the finding is based on no evidence or it proceeds on mere conjectures and surmises. The Court has further laid down that finding in such disciplinary proceedings must be sustained by a higher degree of proof than that required in civil suits, yet falling short of the proof required to sustain a conviction in a criminal prosecution; and there should be convincing preponderance of evidence. We must immediately note with profit that the said principle is absolutely significant. The Court has stressed upon the rule to be applied for acceptance or treating the finding defensible by the Disciplinary Committee of the Bar Council. In this regard it is fruitful to reproduce the following passage from the said authority: (P.D. Khandekar case2, SCC pp. 562-63, para 8)</h4><h4>“8. There is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct. In A Vakil, In re5, Coutts Trotter, C.J. followed the decision in G. Mayor Cooke, In re6, and said that: (A Vakil, In re case5, SCC Online Mad para 2)</h4><h4>‘2. … negligence by itself is not professional misconduct; into that offence there must enter the element of moral delinquency. Of that there is no suggestion here, and we are, therefore, able to say that there is no case to investigate, and that no reflection adverse to his professional honour rests upon Mr Munuswami Naidu.’</h4><h4>The decision was followed by the Calcutta High Court in An Advocate, In re7, and by the Allahabad High Court in An Advocate of Agra, In re8 and by this Court in P, an Advocate, In re1.” </h4><h4>Judgments relied on:&nbsp;</h4><h4>1<span style=\"white-space:pre\">	</span>P, an Advocate, In re, AIR 1963 SC 1313 : (1963) 2 Cri LJ 341</h4><h4>2<span style=\"white-space:pre\">	</span>P.D. Khandekar v. Bar Council of Maharashtra, (1984) 2 SCC 556 : 1984 SCC (Cri) 335</h4><h4>3<span style=\"white-space:pre\">	</span>Ministry of Information &amp; Broadcasting, In re, (1995) 3 SCC 619</h4><h4>4<span style=\"white-space:pre\">	</span>Dhanraj Singh Choudhary v. Nathulal Vishwakarma, (2012) 1 SCC 741 : (2012) 1 SCC (Civ) 385 : (2012) 1 SCC (Cri) 761 : (2012) 1 SCC (L&amp;S) 316</h4><h4>5<span style=\"white-space:pre\">	</span>A Vakil, In re, 1925 SCC OnLine Mad 463 : ILR (1926) 49 Mad 523</h4><h4>6<span style=\"white-space:pre\">	</span>G. Mayor Cooke, In re, (1889) 33 Sol Jour 397</h4><h4>7<span style=\"white-space:pre\">	</span>An Advocate, In re, AIR 1935 Cal 484 : 1934 SCC OnLine Cal 279</h4><h4>8<span style=\"white-space:pre\">	</span>An Advocate of Agra, In re, ILR 1940 All 386 : AIR 1940 All 289 : 1940 SCC OnLine All 18</h4><div><br></div>', 'd43d9f47f75977f1738c7b0fd04dee90.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2017-02-16', 1, '', '', '2021-02-07 01:16:36', '2021-02-07 01:17:42');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(429, 'Z3Ji3JCHlqZkIlONzMYfXKlw5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Status of illegitimate children vis-à-vis ancestral property.', '<h4>Status of illegitimate children vis-à-vis ancestral property.&nbsp;</h4><h4>Section 16 of the Hindu Marriage Act as amended in 1976 reads as hereunder. <i>(Relevant portion highlighted)&nbsp;</i></h4><h4>Legitimacy of children of void and voidable marriages.—</h4><h4><i>(1) Notwithstanding that a marriage marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.&nbsp;</i></h4><h4><i>(2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.&nbsp;</i></h4><h4><i style=\"color: rgb(156, 0, 0);\">(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.</i></h4><h4>The judicial interpretations from the Supreme Court on this aspect are as hereunder:</h4><h4><font color=\"#ce0000\">1. Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt) v. K. Devi, (1996) 4 SCC 76. Justice Kuldip Singh and Justice S. Saghir Ahmad.&nbsp;</font><a href=\"https://main.sci.gov.in/jonew/judis/15631.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255); text-decoration-line: underline;\">https://main.sci.gov.in/jonew/judis/15631.pdf</a>&nbsp;</h4><h4><i>82. In view of the legal fiction contained in Section 16, the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.</i></h4><h4><font color=\"#ce0000\">2. Jinia Keotin v. Kumar Sitaram Manjhi, (2003) 1 SCC 730 . Justice Doraiswamy Raju and Justice Shivaraj V Patil.&nbsp;</font><a href=\"https://main.sci.gov.in/jonew/judis/18681.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">https://main.sci.gov.in/jonew/judis/18681.pdf</a><span style=\"font-size: 1.3125rem;\"><a href=\"https://main.sci.gov.in/jonew/judis/18681.pdf\" target=\"_blank\">&nbsp;</a></span>&nbsp;</h4><h4><i>4……The Hindu Marriage Act underwent important changes by virtue of the Marriage Laws (Amendment) Act, 1976, which came into force with effect from 27-5-1976. Under the ordinary law, a child for being treated as legitimate must be born in lawful wedlock. If the marriage itself is void on account of contravention of the statutory prescriptions, any child born of such marriage would have the effect, per se, or on being so declared or annulled, as the case may be, of bastardizing the children born of the parties to such marriage. Polygamy, which was permissible and widely prevalent among the Hindus in the past and considered to have evil effects on society, came to be put an end to by the mandate of Parliament in enacting the Hindu Marriage Act, 1955. The legitimate status of the children which depended very much upon the marriage between their parents being valid or void, thus turned on the act of the parents over which the innocent child had no hold or control. But, for no fault of it, the innocent baby had to suffer a permanent setback in life and in the eyes of society by being treated as illegitimate. A laudable and noble act of the legislature indeed in enacting Section 16 to put an end to a great social evil. At the same time, Section 16 of the Act, while engrafting a rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable chose also to confine its application, so far as succession or inheritance by such children is concerned, to the properties of the parents only.</i></h4><h4><i>5. So far as Section 16 of the Act is concerned, though it was enacted to legitimise children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provides in sub-section (3) by engrafting a provision with a non obstante clause stipulating specifically that nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage, which is null and void or which is annulled by a decree of nullity under Section 12, “any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents”. In the light of such an express mandate of the legislature itself, there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further rights than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in sub-section (3) of Section 16 of the Act but also would amount to court relegislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself. Consequently, we are unable to countenance the submissions on behalf of the appellants. The view taken by the courts below cannot be considered to suffer from any serious infirmity to call for our interference, in this appeal.</i></h4><h4><font color=\"#ce0000\">3. Neelamma v. Sarojamma, (2006) 9 SCC 612. Justice Ashok Bhan and Justice Lokeshwar Singh Panta.&nbsp;</font></h4><h4><i>3. The High Court relying upon the judgment of a Single Judge of the Andhra Pradesh High Court in G. Nirmalamma v. G. Seethapathi AIR 2001 AP 104&nbsp; has held that under Section 16(3) of the Hindu Marriage Act, 1955 (for short “the Act”), the illegitimate child would be entitled to succeed/claim a share in the joint Hindu family property as well. This view of the High Court is contrary to the law laid down by this Court in Jinia Keotin v. Kumar Sitaram Manjhi(2003) 1 SCC 730. In the said case this Court, interpreting the same provisions of the Act, has come to the conclusion that an illegitimate child cannot succeed/claim a share in the joint Hindu family property. Such illegitimate child would only be entitled to a share in the self-acquired property of the parents.&nbsp;</i></h4><h4><i style=\"color: rgb(206, 0, 0);\">4.Bharatha Matha v. R. Vijaya Renganathan, (2010) 11 SCC 483. Justice Dr.B.S.Chauhan and Justice Swatanter Kumar.&nbsp;</i><a href=\"https://main.sci.gov.in/jonew/judis/36394.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255); text-decoration-line: underline;\">https://main.sci.gov.in/jonew/judis/36394.pdf</a><span style=\"font-size: 1.3125rem;\">&nbsp;</span></h4><h4><i>29. Thus, it is evident that in such a fact situation, a child born of void or voidable marriage is not entitled to claim inheritance in ancestral coparcenary property but is entitled only to claim a share in self-acquired properties, if any.</i></h4><h4><font color=\"#ce0000\">5. Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1. Justice G.S. Singhvi and Justice A.K.Ganguly.&nbsp;</font><a href=\"https://main.sci.gov.in/jonew/judis/37947.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255); text-decoration-line: underline;\">https://main.sci.gov.in/jonew/judis/37947.pdf</a><br></h4><h4><i>39. We are constrained to differ from the interpretation of Section 16(3) rendered by this Court in Jinia Keotin and, thereafter, in Neelamma and Bharatha Matha in view of the constitutional values enshrined in the Preamble of our Constitution which focuses on the concept of equality of status and opportunity and also on individual dignity. The Court has to remember that relationship between the parents may not be sanctioned by law but the birth of a child in such relationship has to be viewed independently of the relationship of the parents. A child born in such relationship is innocent and is entitled to all the rights which are given to other children born in valid marriage. This is the crux of the amendment in Section 16(3). However, some limitation on the property rights of such children is still there in the sense their right is confined to the property of their parents. Such rights cannot be further restricted in view of the pre-existing common law view discussed above.</i></h4><h4><i>40. It is well known that this Court cannot interpret a socially beneficial legislation on the basis as if the words therein are cast in stone. Such legislation must be given a purposive interpretation to further and not to frustrate the eminently desirable social purpose of removing the stigma on such children. In doing so, the Court must have regard to the equity of the statute and the principles voiced under Part IV of the Constitution, namely, the directive principles of State policy. In our view this flows from the mandate of Article 37 which provides that it is the duty of the State to apply the principles enshrined in Chapter IV in making laws. It is no longer in dispute that today the State would include the higher judiciary in this country.</i></h4><h4><i>41. Considering Article 37 in the context of the duty of the judiciary, Mathew, J. in Kesavananda Bharati v. State of Kerala(1973) 4 SCC 225 held: (SCC p. 878, para 1704)</i></h4><h4><i>“1704. … I can see no incongruity in holding, when Article 37 says in its latter part ‘it shall be the duty of the State to apply these principles in making laws’, that judicial process is ‘State action’ and that the judiciary is bound to apply the directive principles in making its judgment.”</i></h4><h4><i>42. Going by this principle, we are of the opinion that Article 39(f) must be kept in mind by the Court while interpreting the provision of Section 16(3) of the Hindu Marriage Act.&nbsp;</i></h4><h4><i>43. Apart from Article 39(f), Article 300-A also comes into play while interpreting the concept of property rights. Article 300-A is as follows:</i></h4><h4><i>44. The right to property is no longer fundamental but it is a constitutional right and Article 300-A contains a guarantee against deprivation of property right save by the authority of law.</i></h4><h4><i>45. In the instant case, Section 16(3) as amended, does not impose any restriction on the property right of such children except limiting it to the property of their parents. Therefore, such children will have a right to whatever becomes the property of their parents whether self-acquired or ancestral.</i></h4><h4><i>46. For the reasons discussed above, we are constrained to take a view different from the one taken by this Court in Jinia Keotin, Neelamma and Bharatha Matha on Section 16(3) of the Act.</i></h4><h4><i>47. We are, therefore, of the opinion that the matter should be reconsidered by a larger Bench and for that purpose the records of the case be placed before the Hon’ble the Chief Justice of India for constitution of a larger Bench.</i></h4><h4><font color=\"#9c0000\">Note: The issue as to whether illegitimate children are entitled to share in ancestral property is referred to a larger bench of the Supreme Court. However till the larger bench differs with earlier views, the legal position continues which is, the illegitimate children do not have right in ancestral properties. They are entitled to share only in self-acquired properties after the death of their parents.</font></h4><h4><font color=\"#9c0000\"><br></font></h4><h4><font color=\"#9c0000\">Links to above Judgments:</font></h4><h4>1. Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt) v. K. Devi, (1996) 4 SCC 76.&nbsp;<a href=\"https://main.sci.gov.in/jonew/judis/15631.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/15631.pdf</a><br></h4><h4>2. Jinia Keotin v. Kumar Sitaram Manjhi, (2003) 1 SCC 730.&nbsp;<a href=\"https://main.sci.gov.in/jonew/judis/18681.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/18681.pdf</a><span style=\"font-size: 1.3125rem;\"><a href=\"https://main.sci.gov.in/jonew/judis/18681.pdf\" target=\"_blank\">&nbsp;</a></span></h4><h4>3. Neelamma v. Sarojamma, (2006) 9 SCC 612. (<span style=\"font-style: italic;\">Could not find on SC website.)</span></h4><h4>4. Bharatha Matha v. R. Vijaya Renganathan, (2010) 11 SCC 483.&nbsp;<a href=\"https://main.sci.gov.in/jonew/judis/36394.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/36394.pdf</a>&nbsp;</h4><h4>5. Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1. <a href=\"https://main.sci.gov.in/jonew/judis/37947.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/37947.pdf</a></h4><p><br></p>', '95991c0524b5ea282c0820fd8d95e9b4.png', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-07', 1, '', '', '2021-02-07 17:17:26', '2021-02-07 17:59:37'),
(430, 'UQha5nhh54R9KnnH7u3Rdi4SE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Amendment of plaint claiming easement of necessity in addition to plea of public way. Amendment is not inconsistent and can be allowed. Karnataka High Court. ', '<h4>M.P.Puttamma vs V.Chittibabu. Writ Petition 30810/2018 decided on 5 February 2021. </h4><h4><font color=\"#9c0000\">Judgment Link:</font><span style=\"color: rgb(156, 0, 0);\">&nbsp;</span><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/362773/1/WP30810-18-05-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/362773/1/WP30810-18-05-02-2021.pdf</a><br><font color=\"#9c0000\">Relevant paragraphs:&nbsp;</font>(a)Admittedly, the suit is one for declaration &amp; injunction; the respondent being the defendant is&nbsp; resisting the same by filing the Written Statement; issues are framed,&nbsp; is true; trial is yet to commence, is not disputed; it has been a long settled position of law that ordinarily the request for pre-trial amendments is favoured as a rule and declined as an exception; this approach is not reflected in the impugned&nbsp; order and thus there is an error apparent on its face, that has caused prejudice to the petitioner.<br>(b)As already mentioned above, the decree sought for in the suit is for declaration &amp; injunction concerning the right of way; the suit as originally founded was on the premise that it is a public way and that the respondent&nbsp; should&nbsp; not&nbsp; interfere with the same; now also the prayer will remain same since what is sought to be&nbsp; introduced by way of amendment&nbsp; to the plaint is only the ground of easement of necessity; thus the nature of the suit does not much change; any amendment would inevitably cause some change and it would cause some prejudice to the other side, is true; what the&nbsp; courts need to&nbsp; see is the enormity of change and the consequent amount of prejudice that the other side would be put to, should leave for amendment be granted; going by the pleadings and the&nbsp; subject application &amp; the objections thereto, this Court is of a considered opinion that there will be no substantial change in the structure of the suit, if amendment as sought for is sanctioned.<br>(c) The vehement contention of respondent’s counsel that the amendment if sanctioned would amount to permitting the plaintiff to take up inconsistent plea which the law frowns, is bit difficult to countenance; ordinarily, defendants in a suit are permitted to take up&nbsp; inconsistent&nbsp; plea and not the plaintiffs, is true; the Apex Court in Usha Balashaheb Swami Vs. Kiran Appaso Swami, (2007) 5 SCC 602, at para 19 observed as under:<br><i>“It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.”<br></i>(d)<span style=\"white-space:pre\">	</span>There is yet another reason for not pressing into service the principle of inconsistent pleas; the contention that once the plaintiff frames his suit on the ground of public way, the other ground of easement of necessity tentamounts to a contra plea, does not merit acceptance; Sec.13 of the Act&nbsp; which enacts the easement of&nbsp; necessity&nbsp; presupposes&nbsp; dominant heritage of one and the servient heritage of another, is true; even then there is nothing repugnant in a public way becoming a dominant heritage, in a limited sense; in other words, there is no contradiction even if it is assumed that the path in question is of public use, the essence of the section being two separate owners and nothing more. An easement requires that some diminution of the natural rights incidental to the ownership of a piece of land is reflected in a corresponding right superimposed on the natural rights<br>incidental to another piece of land; much deliberation is not warranted since all this is to be&nbsp; debated in the&nbsp; trial of the&nbsp; suit.<br>(f)<span style=\"white-space:pre\">	</span>There is force in the contention of the learned counsel for the petitioner that the impugned order of the kind is treated as a discretionary one and therefore the Writ Court should not readily interfere with vide SADHANA LODH VS. NATIONAL INSURANCE COMPANY &amp; ANOTHER, (2003) 3 SCC 524, in the absence of any culpable error being demonstrated. But, some prejudice is being caused to the respondent by petitioners amendment of the plaint; it is tritely said that&nbsp; there is no prejudice to a party which cannot be compensated by awarding costs and therefore petitioner has to pay the costs.<br>(g)<span style=\"white-space:pre\">	</span>Learned counsel for the respondent is justified in contending that whether the amendment, if sanctioned, should have retrospective effect or otherwise, needs to be examined by the learned trial Judge while hearing the suit, and therefore that issue is not foreclosed here. It hardly&nbsp; needs to be stated that the court has got discretion to decide the same keeping in view well settled principles which govern the doctrine of relation back, after hearing both the stakeholders. </h4><h4>Writ Petition allowed.</h4>', '6e0d5ba456aad21b6b251a0d1f37cb81.jpg', 'afc752b57b57dd2e755d29f4a20b0ded.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-05', 1, '', '', '2021-02-08 02:46:58', '2021-02-08 02:48:08'),
(431, 'xIIKLybMqH8sgLLvDLewPcoRW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Statutory power. When a statutory authority is required to do a thing in a particular manner the same must be done in that manner or not at all. Supreme Court.  ', '<h4><span style=\"font-size: 14px;\">Bhavnagar University v. Palitana Sugar Mill (P) Ltd., Civil Appeals No. 8003 of 2002† with Nos. 1539-41 of 2001 and 8004-12 of 2002, decided on December 3, 2002 reported in (2003) 2 SCC 111. Judgment Link: <a href=\"https://main.sci.gov.in/jonew/judis/18638.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/18638.pdf</a></span></h4><h4><span style=\"font-size: 14px;\">Paragraph 40. The statutory interdict of use and enjoyment of the property must be strictly construed. <span style=\"color: rgb(206, 0, 0);\">It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. </span>The State and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof.</span></h4><h4><br></h4>', '5c166bfc5ef2cbc860633d311a63c003.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2002-12-03', 1, '', '', '2021-02-08 03:02:10', '2021-02-08 03:02:37'),
(432, 's3By08wWSkDhYnWeNIZ9jzX0K', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Succession Act. Section 14. Life interest created to wife under Will beyond her share in a notional partition is not a pre-existing right. Bequeath is only life interest. Wife will not get absolute right. Karnataka High Court. ', '<h4>S.B.Sampat Kumar vs S.B.Parasmal and another. Regular First Appeal 100121/2014 decided on 21 January 2021. Justice Sreenivas Harish and Justice P.N. Desai.&nbsp;</h4><h4><font color=\"#9c0000\">Judgment Link:&nbsp;</font><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/362749/1/RFA100121-14-21-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/362749/1/RFA100121-14-21-01-2021.pdf</a><br><font color=\"#9c0000\">Relevant paragraphs:&nbsp;</font>13. The controversy between the parties further confines to examining whether the life interest created in favour of Sundar Bai was in recognition of her pre-existing right or not.<br>16. What is the meaning of pre-existing right? What is required is its legal meaning rather than dictionary meaning. In the context of S. 14(1) of the Act, legally speaking, pre-existing right can be said to be a right possessed by a woman to lay claim on&nbsp; the&nbsp; entire or&nbsp; part&nbsp; of the property, it may include right to&nbsp; inherit&nbsp; the&nbsp; property by birth as in the case of Hindu coparceners, a right to succeed to self acquisition properties of a male Hindu and right to claim maintenance also. In case, a husband deserts his wife and neglects to provide maintenance to her, she can certainly claim maintenance&nbsp; as a legal right, and this right extends over the husband’s self acquired property although she has no right to claim partition in the self acquired property of her husband till&nbsp; his&nbsp; lifetime.&nbsp; Looked in&nbsp; this view, right to&nbsp; maintenance is a pre-existing right. But, if a husband executes a will in respect of his self acquired property or in respect of his interest in coparcenary property as contemplated in Sec.&nbsp; 30 of the Act, creating only a life interest in favour of his wife, can it be&nbsp; said that such a&nbsp; bequest is&nbsp; in&nbsp; recognition&nbsp; of pre-existing right of a wife to maintenance.&nbsp; This&nbsp; requires little more elucidation with an illustration.<br>17. A wife cannot claim partition&nbsp; in&nbsp; the&nbsp; ancestral property of her husband. During the lifetime of a male Hindu, neither his wife nor children can claim partition in&nbsp; his self acquired property. Right to seek partition arises after the death of a male Hindu.&nbsp; If&nbsp; a&nbsp; male&nbsp; Hindu possessed of self acquired property dies intestate leaving behind a wife and two sons, his heirs including the&nbsp; wife&nbsp; take 1/3rd share each. Suppose the property is ancestral, the wife does not take 1 /3rd share, rather her share gets reduced to 1/9 th by applying the doctrine of notional partition. The pre-existing right of a wife therefore, is limited to 1/3rd share in the self acquired property of her husband and 1/ 9th, in case of ancestral&nbsp; property.&nbsp; If&nbsp; a male Hindu executes a will or makes&nbsp; an&nbsp; arrangement during his lifetime with regard to devolvement of his property after his demise by providing life interest to his wife to the extent of the share that she is actually entitled to, it can be construed as what is&nbsp; provided to&nbsp; the wife&nbsp; is for her maintenance till her&nbsp; lifetime even&nbsp; though the will or the other instrument does not expressly indicate that kind of an intention. This kind of&nbsp; a&nbsp; bequest&nbsp; or arrangement can definitely be made in recognition of the pre-existing right of a wife and in that event the limited interest will enlarge into absolute interest in accordance with Sec. 14(1 ) of the Act. But, if the bequest extends beyond the actual share of the wife, it is nothing but&nbsp; interest that comes into existence in favour of the wife for the first time according to volition of&nbsp; the&nbsp; husband&nbsp; and such a bequest, though restricted, falls within the&nbsp; sphere&nbsp; of Sec.14(2 ) of the Act.<br></h4><h4><font color=\"#ce0000\">20. Sharad Subramanyan Vs. Soumi Majumdar and others (2006) 8 SCC 91 ,\"...so that where&nbsp; a&nbsp; female Hindu became possessed of property not in virtue&nbsp; of any pre- existing right but otherwise, and the grantor chose to impose certain conditions on the grantee, the legislature did not want to interfere with such&nbsp; a&nbsp; transaction by obliterating or setting at naught the conditions imposed.”</font></h4><h4><font color=\"#ce0000\">Cases referred to:</font><br></h4><h4>V.Tulasamma Vs. Sesha Reddy (LAWS ( SC) 1977 3 55)<br>Raghubarsingh Vs. Gulab Singh [LAWS ( SC) 1998 7 53].<br>Palchuri Henumayamma Vs. Tadikamalla Kotlingam (AIR 2001 SC 3062)<br>B.Y.Narasimha Prasad Vs. H. S. Saraswati, (LAWS (KAR) 2020 6&nbsp; 32)<br>Sharad Subramanyan Vs. Soumi Majumdar and others (2006) 8 SCC 91<br>Sadhu Singh Vs. Gurdwara Sahib Narike and others ( 2006) 8 SCC 75<br>Shivadev Kaur ( dead) by LRs and others Vs. R.S. Grewal (2013) 4 SCC 636<br><br></h4><p><br></p>', '5cc19eb167dd939b647b61c474367419.PNG', 'bf8bafc38f76b08a146525c8750e6c11.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-21', 1, '', '', '2021-02-08 03:38:46', '2021-02-08 03:45:46'),
(433, 'ZoaLWd4bOzzkwa2ryH35Tvmd6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Offline Intermediate Semester Exam by BCI and KSLU. Operative portion of the Judgment of the Karnataka High Court. ', '<h4>Ritvik Balanagraj B vs Bar Council of India and Others. Writ Petition 14389/2020, decided on 8 February 2021&nbsp;</h4><h4>Judgment <a href=\"Link:&nbsp;http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/362864/1/WP14389-20-08-02-2021.pdf\" target=\"_blank\">Link:&nbsp;http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/362864/1/WP14389-20-08-02-2021.pdf</a></h4><h4>Operative portion of the order passed by the Karnataka High Court is as follows:<br>Judgment by Hon\'ble Mr. Justice R. Devadas.&nbsp;<br>1.&nbsp; The impugned Press Release dated 01.11.2020 issued by the Bar Council of India and the Circular dated 09.11.2020 issued by the Karnataka State Law University are quashed and set aside insofar as the intermediate semester examinations are concerned, with respect to the 1st to 4th year five year law students.<br>2. The time table announced by the Karnataka state Law University along with the notifications dated 13.01.2021 and dated 29.01.2021 insofar as the 1st year to 4th year students are concerned are also hereby quashed and set aside.<br>3. The Karnataka State Law University may announce a fresh time table with respect to the first year to forth year students of the five year law course, scheduling examinations of the odd semesters only.<br>4. Insofar as the even semester examinations are concerned, the same shall be assessed on the basis of the internal assessments of the students to an extent of 50% and the remaining 50% of the marks on the basis of performance in the previous semester only ( if available ). The marks card shall also be issued in the above terms, with respect to the even semesters.&nbsp;<br>It is ordered accordingly.<br>In view of the disposal of the Writ Petitions, pending interlocutory applications do not survive for consideration and accordingly the same stand disposed of.<br>&nbsp;</h4>', '85ce94bb2afe3a8cce26881ecc7078a3.jpg', 'c5336571bec68c538b3f9cb51b0c3246.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-08', 1, '', '', '2021-02-08 22:39:11', '2021-02-09 02:48:12'),
(434, '3jgAo93yo7VlbboxUUiGzdJoL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Associated Provincial Picture Houses Limited vs Wednesbury Corporation. 1948- 1- Kings Bench 223', '<h4><font color=\"#9c0000\">Associated Provincial Picture Houses Limited vs Wednesbury Corporation</font><span style=\"font-size: 1.3125rem; color: rgb(156, 0, 0);\"> </span></h4><h4>Decided on 7 November 1947 Lord Greene M.R. , Somervell L.J. and Singleton J. Reported in [1948] 1 KB 223</h4><h4><i>Solicitors: Norman, Hart & Mitchell; Sharpe, Pritchard & Co., for G. F. Thompson, Wednesbury.</i></h4><h4>LORD GREENE M.R. In the action out of which this appeal arises, the plaintiffs, who are the proprietors of a cinema theatre in Wednesbury, sought to obtain from the court a declaration that a certain condition imposed by the defendants, the corporation of Wednesbury, on the grant of a licence for Sunday performances in that cinema was ultra vires. The action was dismissed by Henn Collins J. and, in my opinion, his decision was clearly right. The powers and duties of the Local Authority are to be found in the Sunday Entertainments Act, 1932. That Act legalized the opening of cinemas on Sundays, subject to certain specified conditions and subject to such conditions as the licensing authority think fit to impose. The licensing authority are the licensing authority set up under the Cinematograph Act, 1909, and in this case are the council of the borough of Wednesbury. Before the Act of 1932, the opening of cinematograph theatres on Sundays was, in fact, illegal. Local authorities had purported in some cases to allow Sunday opening under the licences which they granted, but that permission was strictly irregular. The position under the Act now with regard to licensing is stated conveniently by Atkinson J. in Harman v. Butt   [1944]  KB  491, 493 . He there says: “It is apparent that there are at least three totally different occasions on which licensing justices may be called on to exercise their discretion to issue a licence and to determine on what conditions the licence shall be issued. The application may be under the Cinematograph Act, 1909, relating to six days of the week, excluding Sundays. It may be one relating solely to Sundays under the Sunday Entertainments Act, 1932, where in the case of a borough the majority of the local government electors have expressed a desire for Sunday performances. Thirdly, it may be one where the local government electors have expressed no such wish, but where the application is made for the benefit of those members of the forces who are stationed in the neighbourhood for the time being.” Under a regulation, the commanding officer of forces stationed in the neighbourhood had power to make a representation to the licensing authority and the case of Harman v. Butt Ibid 491 was, in fact, a case where that had taken place.</h4><h4>The actual words in question here are to be found in s. 1, sub-s. 1, of the Act of 1932. The power to impose conditions is expressed in quite general terms. The sub-section goes on to refer to certain conditions which must be imposed, but with those we are not concerned. In the present case, the defendants imposed the following condition in their licence:  “No children under the age of fifteen years shall be admitted to any entertainment, whether accompanied by an adult or not.” Mr. Gallop, for the plaintiffs, argued that it was not competent for the Wednesbury Corporation to impose any such condition and he said that if they were entitled to impose a condition prohibiting the admission of children, they should at least have limited it to cases where the children were not accompanied by their parents or a guardian or some adult. His argument was that the imposition of that condition was unreasonable and that in consequence it was ultra vires the corporation. The plaintiffs\' contention is based, in my opinion, on a misconception as to the effect of this Act in granting this discretionary power to local authorities. The courts must always, I think, remember this: first, we are dealing with not a judicial act, but an executive act; secondly, the conditions which, under the exercise of that executive act, may be imposed are in terms, so far as language goes, put within the discretion of the local authority without limitation. Thirdly, the statute provides no appeal from the decision of the local authority.</h4><h4>What, then, is the power of the courts? They can only interfere with an act of executive authority if it be shown that the authority has contravened the law. It is for those who assert that the local authority has contravened the law to establish that proposition. On the face of it, a condition of the kind imposed in this case is perfectly lawful. It is not to be assumed prima facie that responsible bodies like the local authority in this case will exceed their powers; but the court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for that authority. It is only concerned with seeing whether or not the proposition is made good. When an executive discretion is entrusted by Parliament to a body such as the local authority in this case, what appears to be an exercise of that discretion can only be challenged in the courts in a strictly limited class of case. As I have said, it must always be remembered that the court is not a court of appeal. When discretion of this kind is granted the law recognizes certain principles upon which that discretion must be exercised, but within the four corners of those principles the discretion, in my opinion, is an absolute one and cannot be questioned in any court of law.</h4><h4>What then are those principles? They are well understood. They are principles which the court looks to in considering any question of discretion of this kind. The exercise of such a discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. Conversely, if the nature of the subject matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters.</h4><h4>There have been in the cases expressions used relating to the sort of things that authorities must not do, not merely in cases under the Cinematograph Act but, generally speaking, under other cases where the powers of local authorities came to be considered. I am not sure myself whether the permissible grounds of attack cannot be defined under a single head. It has been perhaps a little bit confusing to find a series of grounds set out. Bad faith, dishonesty — those of course, stand by themselves — unreasonableness, attention given to extraneous circumstances, disregard of public policy and things like that have all been referred to, according to the facts of individual cases, as being matters which are relevant to the question. If they cannot all be confined under one head, they at any rate, I think, overlap to a very great extent. For instance, we have heard in this case a great deal about the meaning of the word “unreasonable.”</h4><h4>It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word “unreasonable” in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably.” <font color=\"#ce0000\">Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. </font>Warrington L.J. in Short v. Poole Corporation   [1926]  Ch  66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.</h4><h4>In the present case, it is said by Mr. Gallop that the authority acted unreasonably in imposing this condition. It appears to me quite clear that the matter dealt with by this condition was a matter which a reasonable authority would be justified in considering when they were making up their mind what condition should be attached to the grant of this licence. Nobody, at this time of day, could say that the well-being and the physical and moral health of children is not a matter which a local authority, in exercising their powers, can properly have in mind when those questions are germane to what they have to consider. Here Mr. Gallop did not, I think, suggest that the council were directing their mind to a purely extraneous and irrelevant matter, but he based his argument on the word “unreasonable,” which he treated as an independent ground for attacking the decision of the authority; but once it is conceded, as it must be conceded in this case, that the particular subject-matter dealt with by this condition was one which it was competent for the authority to consider, there, in my opinion, is an end of the case. Once that is granted, Mr. Gallop is bound to say that the decision of the authority is wrong because it is unreasonable, and in saying that he is really saying that the ultimate arbiter of what is and is not reasonable is the court and not the local authority. It is just there, it seems to me, that the argument breaks down. It is clear that the local authority are entrusted by Parliament with the decision on a matter which the knowledge and experience of that authority can best be trusted to deal with. The subject-matter with which the condition deals is one relevant for its consideration. They have considered it and come to a decision upon it. It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming, and, in this case, the facts do not come anywhere near anything of that kind. I think Mr. Gallop in the end agreed that his proposition that the decision of the local authority can be upset if it is proved to be unreasonable, really meant that it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether. If it is what the court considers unreasonable, the court may very well have different views to that of a local authority on matters of high public policy of this kind. Some courts might think that no children ought to be admitted on Sundays at all, some courts might think the reverse, and all over the country I have no doubt on a thing of that sort honest and sincere people hold different views. The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. It is the local authority that are set in that position and, provided they act, as they have acted, within the four corners of their jurisdiction, this court, in my opinion, cannot interfere.</h4><h4>This case, in my opinion, does not really require reference to authority when once the simple and well known principles are understood on which alone a court can interfere with something prima facie within the powers of the executive authority, but reference has been made to a number of cases. I can deal, I think, quite shortly with them. First, Henn Collins J. followed a decision of Atkinson J. in the case I have mentioned of Harman v. Butt   [1944]  KB  491 . In that case a condition of this character had been imposed and I think the only difference between the two cases is that in Harman v. Butt   [1944]  KB  491 the licence to open on Sundays originated in a representation by the commanding officer of forces stationed in the neighbourhood. Atkinson J. dealt with the matter thus Ibid 499 : “I am satisfied that the defendants were entitled to consider matters relating to the welfare, including the spiritual well-being, of the community and of any section of it, and I hold that this condition that no child under the age of sixteen should be admitted to this cinematograph theatre on Sunday is not ultra vires on the ground that it is not confined to the user of the premises by the licensee, but relates to the interest of a section of the community.” Then he goes on to deal with the question of reasonableness. That was a case in which the decision, in my opinion, is unassailable. There are two other cases relied upon. One is R. v. Burnley Justices  85   LJ (KB)  1565 , and another not dissimilar case on one point, Ellis v. Dubowski   [1921]  3   KB  621 . Those were cases where the illegal element which the authority had imported into the conditions imposed consisted of a delegation of their powers to some outside body. It was not that the delegation was a thing which no reasonable person could have thought was a sensible thing to do. It was outside their powers altogether to pass on this discretion which the legislature had confided to them to some outside body. Another case on which Mr. Gallop relied is Roberts v. Hopwood   [1925]  AC  578. That was a totally different class of case. The district auditor had surcharged the members of a council who had made payments of a minimum wage of 4 l. a week to their lowest grade of workers. That particular sum had been fixed by the local authority not by reference to any of the factors which go to determine a scale of wages, but by reference to some other principle altogether, and the substance of the decision was that they had not fixed 4 l. a week as wages at all and that they had acted unreasonably. When the case is examined, the word “unreasonable” is found to be used rather in the sense that I mentioned a short while ago, namely, that in fixing 4 l. they had fixed it by reference to a matter which they ought not to have taken into account and to the exclusion of those elements which they ought to have taken into consideration in fixing a sum which could fairly be called a wage. That is no authority whatsoever to support the proposition that the court has power, a sort of overriding power, to decide what is reasonable and what is unreasonable. The court has nothing of the kind.</h4><h4>I do not think I need take up time by referring to other authorities, but I might say this in conclusion. An early case under the Cinematograph Act, 1909, much discussed before us, was Theatre de Luxe (Halifax), Ld. v. Gledhill   [1915]  2   KB  49 . That was a decision of a Divisional Court as to the legality or a condition imposed under the Act to the following effect: “Children under fourteen years of age shall not be allowed to enter into or be in the licensed premises after the hour of 9 p.m. unaccompanied by a parent or guardian. No child under the age of ten years shall be allowed in the licensed premises under any circumstances after 9 p.m.” That case was heard by a Divisional Court of the King\'s Bench Division, consisting of Lush, Rowlatt and Atkin JJ. The majority, consisting of Lush and Rowlatt JJ. held that the condition was ultra vires as there was no connexion, as the headnote says, “between the ground upon which the condition was imposed, namely, regard for the health and welfare of young children generally, and the subject-matter of the licence, namely, the use of the premises for the giving of cinematograph exhibitions.” That case is one which, I think, I am right in saying has never been referred to with approval, but often referred to with disapproval, though it has never been expressly overruled. I myself take the view that the decision of the majority in that case puts much too narrow a construction upon the licensing power given by that Act, which, of course, is not the same Act as we have to consider here. Atkin J. on the other hand, delivered a dissenting judgment in which he expressed the opinion that the power to impose conditions was nothing like so restricted as the majority had thought. Quoting again from the headnote, his opinion was “that the conditions must be (1.) reasonable; (2.) in respect of the use of the licensed premises; (3.) in the public interest. Subject to that restriction there is no fetter upon the power of the licensing authority.” If I may venture to express my own opinion about that, I think that Atkin J. was right in considering that the restrictions on the power of imposing conditions were nothing like so broad as the majority thought, but I am not sure that his language may not perhaps be read in rather a different sense from that which I think he must have intended. I do not find in the language that he used any justification for thinking that it is for the court to decide on the question of reasonableness rather than the local authority. I do not read him as in any way dissenting from the view which I have ventured to express, that the task of the court is not to decide what it thinks is reasonable, but to decide whether what is prima facie within the power of the local authority is a condition which no reasonable authority, acting within the four corners of their jurisdiction, could have decided to impose. Similarly, when he refers to the public interest, I do not read him as saying more than that the public interest is a proper and legitimate thing which the council or the licensing authority can and ought to have in mind. He certainly does not suggest anywhere that the court is entitled to set up its view of the public interest against the view of the local authority. Once the local authority have properly taken into consideration a matter of public interest such as, in the present case, the moral and physical health of children, there is, it seems to me, nothing in what Atkin J. says to suggest that the court could interfere with a decision because it took a different view as to what was in the public interest. It is obviously a subject on which different minds may have different views. I do not read him as saying any more than that the local authority can and should take that matter into account in coming to their decision.</h4><h4>In the result, this appeal must be dismissed. I do not wish to repeat myself but I will summarize once again the principle applicable. The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them. The appeal must be dismissed with costs.</h4><h4>SOMERVELL L.J. I agree that the appeal must be dismissed for the reasons which have been given by the Master of the Rolls, and I do not desire to add anything.</h4><h4>SINGLETON J. I agree.</h4><h4>Appeal dismissed.</h4><div><br></div>', 'c14e59cb9dadbb437b6fc8d007303f5b.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-30', 1, '', '', '2021-02-08 23:10:18', '2022-05-31 22:23:03');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2806, '3yO5iXe0D8fYpw3meBwPR68uZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Application under Order 41 Rule 27 CPC can be considered only at the time of hearing of appeal on merits so as to find out whether the additional evidence has any relevance/bearing on the issues involved. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kempaiah Vs Girijamma and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 55103 of 2017 decided on 24 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Rajesh Rai K.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This writ petition is filed praying to issue a writ in the nature of certiorari or any other appropriate writ or orders for quashing the order dated 02-11-2017 passed by the III Additional District and Sessions Judge, Ramanagara, in Regular Appeal No.78 of 2015 by allowing the application filed by respondent Nos.1 to 3 in I.A. No.II filed under Order XLI Rule 27 read with Section 151 of the Code of Civil Procedure, 1908, for production of additional documents.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>The plaintiffs-respondent Nos.1 to 3 filed I.A. No.II in Regular Appeal No.78 of 2015 under Order XLI Rule 27 read with Section 151 of the Code of Civil Procedure, 1908, for production of additional documents before the III Additional District and Sessions Judge, Ramanagara (for short, \'the Appellate Court\'). Said application came to be allowed vide order dated 02-11-2017. Plaintiffs-Respondent Nos.1 to 3 filed the Original Suit No.373 of 2006 against the defendant No.2- petitioner for relief of partition and separate possession came to be dismissed with costs vide order dated 24-10- 2011 before the Additional Senior Civil Judge, Ramanagara (for short, \'the trial Court\'). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>Being aggrieved by the said judgment and decree in Original Suit No.373 of 2016, the plaintiffs-respondent Nos.1 to 3 filed Regular Appeal No.78 of 2015 before the Appellate Court, wherein I.A. No.II filed for production of additional documents. The First Appellate Court after hearing both the parties, allowed the said appeal and the appellants were permitted to produce the documents, mentioned in the application.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>A plain reading of sub-rule(1) of Rule 27 clearly depicts that the parties are not entitled to produce additional evidence, whether oral or documentary in the Appellate Court, but for the three situations mentioned above. It is also well settled law that the parties are not allowed to fill the lacunae at the appellate stage. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>In the case on hand, no application was moved before the trial Court seeking permission to produce the additional evidence, i.e. the documents which the plaintiffs-respondent Nos.1 to 3 intend to rely upon and moreover in the affidavit filed by one of the plaintiffs in Regular Appeal No.78 of 2015 reads that they handed over those documents to their counsel before the trial Court in Original Suit, but their counsel could not produce the same before the trial Court for the reasons best known to him.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>Accordingly, the Hon\'ble Apex Court held that the Appellate Court while hearing the matter finally could exercise jurisdiction one way or the other under Order XLI, Rule 27 of the Code of Civil Procedure, 1908, specially clause (b). If the order was wrong on merits, it would always be open for the respondents to challenge the same in accordance with law, if an occasion arises to carry the matter in second appeal after an appellate decree is passed. Hence, perusal of the judgments of Hon\'ble Apex Court, it is clear that the order passed by the Appellate Court on I.A. No.II in R.A. No.78 of 2015 is premature and liable to be set aside.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space:pre\">	</span>The writ petition is allowed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c19b501e6664d6fecdd8caf8f188c7dd.jpeg', '94aa91053955ba8701a7b73796e56d7c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-20', 1, '', '', '2023-03-17 13:22:22', '2023-03-20 03:22:46'),
(435, 'KUBw6NJJHGAgs2I0Yl23DfKTz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Kesavananda Bharati vs State of Kerala', '<h3 style=\"text-align: center;\"><br></h3><table class=\"table table-bordered\" style=\"text-align: center;\"><tbody><tr><td><h3><font color=\"#000000\">IN THE SUPREME COURT OF INDIA</font></h3><h3><font color=\"#000000\">Kesavananda Bharati vs State of Kerala</font></h3><h3><font color=\"#000000\">Writ Petitions 135 of 1970 and 351, 352, 373, 374 of 1972,</font></h3><h3><font color=\"#000000\">decided on April 24, 1973. Reported in (1973) 4 SCC 225</font></h3><h3><font color=\"#000000\">Chief Justice S.M. Sikri, Justice J.M. Shelat, Justice K.S. Hegde,</font></h3><h3><font color=\"#000000\">Justice A.N. Grover, Justice A.N. Ray, Justice P. Jagamohan</font></h3><h3><font color=\"#000000\">Reddy, D.G. Palekar, Justice H.R. Khanna, Justice K.K. Mathew,</font></h3><h3><font color=\"#000000\">Justice M.H. Beg, Justice S.N. Dwivedi, Justice A.K. Mukherjea</font></h3><h3><font color=\"#000000\">and Justice Y.V. Chandrachud</font></h3><div><br></div></td></tr></tbody></table><h3 style=\"text-align: center;\"><span style=\"background-color: rgb(255, 255, 0);\">See judgment in pdf format attached&nbsp;</span></h3>', '0c83f9dbf8bb4b3ec0af3ffc229a01df.PNG', 'af3e15d723277ce725c1934d440ee915.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1973-04-24', 1, '', '', '2021-02-09 00:55:40', '2021-02-22 17:51:55'),
(4372, 'sngFr0blfKMr6yaOdftGR97Rb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Order 8 Rule 6-A CPC. Counter claim can be filed even after filing the written statement. Restriction is only with respect to the accrual of the cause of action. Supreme Court.', '<h4>Ashok Kumar Kalra v. Surendra Agnihotri,&nbsp;</h4><h4>SLP (C) No. 23599 of 2018, decided on November 19, 2019</h4><h4>Reported in (2020) 2 SCC 394 : (2020) 1 SCC (Civ) 545<br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 18. As discussed by us in the preceding paragraphs, the whole purpose of the procedural law is to ensure that the legal process is made more effective in the process of delivering substantial justice. Particularly, the purpose of introducing Rule 6-A in Order 8 CPC is to avoid multiplicity of proceedings by driving the parties to file separate suit and see that the dispute between the parties is decided finally. If the provision is interpreted in such a way, to allow delayed filing of the counterclaim, the provision itself becomes redundant and the purpose for which the amendment is made will be defeated and ultimately it leads to flagrant miscarriage of justice. At the same time, there cannot be a rigid and hyper-technical approach that the provision stipulates that the counterclaim has to be filed along with the written statement and beyond that, the court has no power. The courts, taking into consideration the reasons stated in support of the counterclaim, should adopt a balanced approach keeping in mind the object behind the amendment and to subserve the ends of justice. There cannot be any hard and fast rule to say that in a particular time the counterclaim has&nbsp; to be filed, by curtailing the discretion conferred on the courts. The trial court has to exercise the discretion judiciously and come to a definite conclusion that by allowing the counterclaim, no prejudice is caused to the opposite party, process is not unduly delayed and the same is in the best interest of justice and as per the objects sought to be achieved through the amendment. But however, we are of the considered opinion that the defendant cannot be permitted to file counterclaim after the issues are framed and after the suit has proceeded substantially. It would defeat the cause of justice and be detrimental to the principle of speedy justice as enshrined in the objects and reasons for the particular amendment to CPC.<br>19. In this regard having clarified the law, we may note that Mahendra Kumar case5 needs to be understood and restricted to the facts of that case. We may note that even if a counterclaim is filed within the limitation period, the trial court has to exercise its discretion to balance between the right to speedy trial and right to file counterclaim, so that the substantive justice is not defeated. The discretion vested with the trial court to ascertain the maintainability of the counterclaim is limited by various considerations based on facts and circumstances of each case. We may point out that there cannot be a straitjacket formula, rather there are numerous factors which needs to be taken into consideration before admitting a counterclaim.<br>20. We may note that any contrary interpretation would lead to unnecessary curtailment of the right of a defendant to file counterclaim. This Court needs to recognise the practical difficulties faced by the litigants across the country. Attaining the laudable goal of speedy justice itself cannot be the only end, rather effective justice wherein adequate opportunity is provided to all the parties, need to be recognised as well (refer to Salem Advocate Bar Assn. case3).<br>21. We sum up our findings, that Order 8 Rule 6-A CPC does not put an embargo on filing the counterclaim after filing the written statement, rather the restriction is only with respect to the accrual of the cause of action. Having said so, this does not give absolute right to the defendant to file the counterclaim with substantive delay, even if the limitation period prescribed has not elapsed. The court has to take into consideration the outer limit for filing the counterclaim, which is pegged till the issues are framed. The court in such cases have the discretion to entertain filing of the counterclaim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive:<br>(i) Period of delay.<br>(ii) Prescribed limitation period for the cause of action pleaded.<br>(iii) Reason for the delay.<br>(iv) Defendant’s assertion of his right.<br>(v) Similarity of cause of action between the main suit and the counterclaim.<br>(vi) Cost of fresh litigation.<br>(vii) Injustice and abuse of process.<br>(viii) Prejudice to the opposite party.<br>(ix) And facts and circumstances of each case.<br>(x) In any case, not after framing of the issues.<br>22. We answer the reference accordingly. The instant special leave petition may be placed before an appropriate Bench after obtaining orders from the Hon’ble Chief Justice of India, for considering the case on merits.&nbsp;</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Cases referred:</span></h4><h4>1. Ashok Kumar Kalra v. Surendra Agnihotri, 2018 SCC OnLine SC 3497</h4><h4>2. Surendra Agnihotri v. Moti Ram Jain, 2018 SCC OnLine All 991</h4><h4>3. Salem Advocate Bar Assn. (2) v. Union of India, (2005) 6 SCC 344 : AIR 2005 SC 3353</h4><h4>4. Jai Jai Ram Manohar Lal v. National Building Material Supply, (1969) 1 SCC 869</h4><h4>5. Mahendra Kumar v. State of M.P., (1987) 3 SCC 265</h4><h4>6. Jag Mohan Chawla v. Dera Radha Swami Satsang, (1996) 4 SCC 699</h4><h4>7. Shanti Rani Das Dewanjee v. Dinesh Chandra Day, (1997) 8 SCC 174</h4><h4>8. Vijay Prakash Jarath v. Tej Prakash Jarath, (2016) 11 SCC 800 : (2016) 4 SCC (Civ) 505</h4><h4>9. Bollepanda P. Poonacha v. K.M. Madapa, (2008) 13 SCC 179</h4><h4>10. Ramesh Chand Ardawatiya v. Anil Panjwani, (2003) 7 SCC 350</h4><h4>11. Rohit Singh v. State of Bihar, (2006) 12 SCC 734</h4><h4>12. Rohit Singh v. State of Bihar, 2006 SCC OnLine SC 29</h4><h4>13. Gayathri Women’s Welfare Assn. v. Gowramma, (2011) 2 SCC 330 : (2011) 1 SCC (Civ) 429</h4><h4>14. Gowramma v. Gayathri Women’s Welfare Assn., 2008 SCC OnLine Kar 786</h4><div><br></div>', '7f6b8dfc2b5a4d877cd4bf2280bb8065.jpeg', '9bfa9a812387f239e0c792cdd4f9f837.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2024-03-30', 1, '', '', '2024-03-30 12:35:40', '2024-03-30 12:35:40'),
(438, 'gq5ZvvxwKMpPRAYAPBrWcgcoy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transfer of Property Act. Gift. When the document is in the nature of a dedication of immovable property to God or deity the same does not require registration. Supreme Court', '<h4><b>Sainath Mandir Trust v. Vijaya,</b></h4><h4><b> Civil Appeal No. 3030 of 2004, decided on 13 December 2010. </b></h4><h4><b>Justice Markandey Katju and Justice Sudha Misra.&nbsp;</b></h4><h4><b><br></b></h4><h4><font color=\"#9c0000\"><b>HELD: 19. It is no doubt true that the gift deed was an unregistered instrument and no title could pass on the basis of the same under Section 123 of the Transfer of Property Act. However, when the document is in the nature of a dedication of immovable property to God, the same does not require registration as it constitutes a religious trust and is exempt from registration.&nbsp;</b></font></h4><h4><b>20. We have taken note of a Full Bench decision of the Madras High Court in Sri Kodanda Ramchandra Moorty v. Madini Venkatalingam1, wherein it was held that Section 123 of the Transfer of Property Act does not apply to such a case for “God” is not a “living person” and so the transaction is not a “transfer” as defined by Section 5 of the Transfer of Property Act. Thus, a gift to an idol may be oral and it may be effected also by an unregistered instrument. But a different view has been taken in Bhupati Nath Chakravarty v. Basanta Kumari Devi2 and Controlling Revenue Authority v. Sarjubai.</b></h4><h4><b>21. In the Full Bench decision of the Madras High Court in Venkatalingam1, it had been argued that a gift to an idol of lands worth over Rs. 100 requires registration and that a mere recital in the deed of gift which had been made, would not pass property. But it had been held by the Full Bench that dedication of property to God by a Hindu does not require any document and that property can be validly dedicated without any registered instrument. In the aforesaid case, the deed of gift was not to a specified idol but to the Almighty Sri Kodanda Ramchandra Moorty. Dealing with this matter, the Full Bench took note of the observation in Pallayya v. Ramavadhanulu4, wherein it was held by Benson and Bhashyam Ayyangar, JJ. that a declaration of trust in relation to immovable property for a public religious purpose is not governed by the Trusts Act which by Section 1 declares it inapplicable to religious trusts. It was also held that Section 123 of the Transfer of Property Act has no application to dedication of land to the public as the section only applied to cases when the donee is an ascertained or ascertainable person by whom or on whose behalf a gift can be accepted or refused.</b></h4><h4><b>22. Taking notice of several authorities, it was held in Venkatalingam case1 that no document was necessary for the dedication of property to charity. The Full Bench recorded as follows: (AIR p. 638)</b></h4><h4><b>“We have not been referred to any case where it has been held that an oral gift for a religious purpose requires registration. In this connection, I may point out that Section 123 of the Transfer of Property Act only applies to transfer by one living person to another. Section 5 of the Act runs as follows:</b></h4><h4><b>‘5. “Transfer of property” defined.—In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, and one or more other living persons and “to transfer property” is to perform such act.’ ”</b></h4><h4><b>23. The learned Judges in Venkatalingam case1 noted that a gift to God which in the said case was Sri Kodanda Ramchandra Moorty cannot be held to be a gift to a living person. It had been argued in the said matter that an idol in law is recognised to be a juristic person capable of holding property and it must be held that a gift to an idol is a gift to a living person. But it was held therein that the Almighty by no stretch of imagination, legal or otherwise, can it be said that the Almighty is a living person within the meaning of the Transfer of Property Act.</b></h4><h4><b>24. The learned Judges of the Full Bench saw no reason to differ from the Madras case cited in that matter where the law had been settled for several years as it was observed that the principle of “stare decisis” should be applied unless there are strong reasons to the contrary as otherwise it would unsettle many titles. Concurring with this view, Reilly, C.J. held that if the gift is not intended to a living person within the meaning of Section 5 of the Transfer of Property Act, the document would not require registration. This judgment surely has a persuasive value to the issue with which we are confronted in the instant matter and tilts the scale of justice in favour of the appellant Trust as the plot was essentially dedicated to Saibaba for a charitable purpose, although the same was in the form of an unregistered deed of gift.</b></h4><div><br></div>', '28e9b9edae8312d1cc20021e684e6d8e.JPG', '9840406f42fc1db3a419ac34241bb4ce.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-25', 1, '', '', '2021-02-09 22:35:42', '2023-01-25 16:07:24'),
(439, '7Bc7s7SP4TBppLR9CuzdZcmnj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for possession based on title. When plaintiff creates a high degree of probability - onus shifts on defendant who has to discharge it.  Burden of plaintiff is not beyond reasonable doubt. Supreme Court ', '<h4>R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple.<br>Civil Appeal No. 10585 of 1996, decided on 8 October 2003. Reported in (2003) 8 SCC 752. Judgment Link: <a href=\"https://main.sci.gov.in/jonew/judis/19401.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/19401.pdf</a><br><font color=\"#9c0000\">Relevant paragraphs: </font>28. Whether a civil or a criminal case, the anvil for testing of “proved”, “disproved” and “not proved”, as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be “proved” when, if considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It is the evaluation of the result drawn by the applicability of the rule, which makes the difference.<br><i>“The probative effects of evidence in civil and criminal cases are not, however, always the same and it has been laid down that a fact may be regarded as proved for purposes of a civil suit, though the evidence may not be considered sufficient for a conviction in a criminal case. Best says: ‘There is a strong and marked difference as to the effect of evidence in civil and criminal proceedings. In the former a mere preponderance of probability, due regard being had to the burden of proof, is a sufficient basis of decision: but in the latter, especially when the offence charged amounts to treason or felony, a much higher degree of assurance is required.’ </i>(Best, § 95) While civil cases may be proved by a mere preponderance of evidence, in criminal cases the prosecution must prove the charge beyond reasonable doubt.” (See Sarkar on Evidence, 15th Edn., pp. 58-59.)<br>In the words of Denning, L.J. (Bater v. Bater, All ER at p. 459 B-C):<br><i>\"It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. So also in civil cases there may be degrees of probability.\"<br></i>Agreeing with this statement of law, Hodson, L.J. said:<br><i>“Just as in civil cases the balance of probability may be more readily tilted in one case than in another, so in criminal cases proof beyond reasonable doubt may more readily be attained in some cases than in others.” </i>(Hornal v. Neuberger Products Ltd.7, All ER at p. 977 D).<br></h4><h4><font color=\"#9c0000\">29. In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. <i>Raghavamma v. A. Chenchamma AIR 1964 Supreme Court 136 </i>there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.</font></h4><h4>30. In the present case, the trial court and the first appellate court have noted that the plaintiff has not been able to produce any deed of title directly lending support to his claim for title and at the same time the defendant too has no proof of his title much less even an insignia of title. Being a civil case, the plaintiff cannot be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus, the plaintiff’s burden of proof can safely be deemed to have been discharged. In the opinion of the two courts below, the plaintiff had succeeded in shifting the onus on the defendant and, therefore, the burden of proof which lay on the plaintiff had stood discharged. The High Court, in exercise of its limited jurisdiction under Section 100 CPC, ought not to have entered into the evaluation of evidence afresh. The High Court has interfered with a pure and simple finding of fact based on appreciation of oral and documentary evidence which the High Court ought not to have done.<br></h4>', '46ab3870c573d4666ce48841e70a395e.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2003-10-08', 1, '', '', '2021-02-09 23:02:01', '2021-02-09 23:17:38'),
(440, 'VcSQBOVyThc5BFYfOGvSpoLd1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Law. Member of a joint Hindu family can bring separation only by a definite and unequivocal declaration of his intention communicated to other members. Uncommunicated intention does not bring severance of joint family. Supreme Court', '<h4 style=\"margin-top:0cm\">Addagada Raghavamma v. Addagada Chenchamma, AIR 1964 SC 136. Civil Appeal No. 165 of 1961, decided on 9 April 1963. Justice K Subba Rao, Justice Raghubar Dayal and Justice  R Mudholkar. Judgment Link: <a href=\"https://main.sci.gov.in/jonew/judis/3543.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/3543.pdf</a> </h4><h4 style=\"margin-top:0cm\">Relevant paragraphs: 24. It is settled law that a member of a joint Hindu family can bring about his separation in status by a definite and unequivocal declaration of his intention to separate himself from the family and enjoy his share in severality. </h4><h4 style=\"margin-top:0cm\">27. The main question of law that arises is whether a member of a joint Hindu family becomes seperated from the other members of the family by mere declaration of his unequivocal intention to divide from the family without bringing the same to the knowledge of the other member of the family. In this context a reference to Hindu law texts would be appropriate, for they are the sources from which Courts evolved the doctrine by a pragmatic approach to problems that arose from time to time. The evolution of the doctrine can be studied in two parts, namely, (1) the declaration of the intention, and (2) communication of it to others affected thereby. On the first part the following texts would throw considerable light. They are collated and translated by Viswanatha Sastri, J., who has a deed and abiding knowledge of the sources of Hindu law in Adiyalath Katheesumma v. Adiyalath Beechu [ILR 1930 Mad 502] ; and we accept his translations as correct and indeed learned counsel on both sides proceeded on that basis. Yajnavalkya, Chapter II, Section 121. “In land, corrody (annuity, etc.), or wealth received from the grandfather, the ownership of the father and the son is only equal”. Vijnaneswara commenting on the said sloka says:</h4><h4 style=\"margin-top:0cm\">“…And thus though the mother is having menstrual courses (has not lost the capacity to bear children) and the father has attachment and does not desire a partition, yet by the will (or desire) of the son a partition of the grandfather\'s wealth does take place.” (Setlur\'s Mitakshara, pp. 646-48).</h4><h4 style=\"margin-top:0cm\">Saraswati Vilase, placitum 28. “From this it is known that without any speech (or explanation) even by means of a determination (or resolution) only, partition is effected, just as an appointed daughter is constituted by mere intention without speech.”</h4><h4 style=\"margin-top:0cm\">Viramitrodaya of Hitra Misra (Chapter II, Pl. 23).</h4><h4 style=\"margin-top:0cm\">“Here too there is no distinction between a partition during the lifetime of the father or after his death and partition at the desire of the sons may take place or even by the desire (or at the will of a single coparcener).\"</h4><h4 style=\"margin-top:0cm\">Vyavahara Mayukha of Nilakantabhatta: (Chapter IV, Section iii-I).</h4><h4 style=\"margin-top:0cm\">“Even in the absence of any common (joint family) property, severance does indeed result by the mere declaration “I am separate from thee” because severance is a particular state (or condition) of the mind and the declaration is merely a manifestation of this mental state (or condition).”</h4><h4 style=\"margin-top:0cm\">The Sanskrit expressions “sankalpa” (resolution) in Saraswati Vilas, “akechchaya” (will of single coparcener) in Viramitrodaya “budhivisesha” (particular state or condition of the mind) in Vyavahara Mayukha, bring out the idea that the severance of joint status is a matter of individual direction. The Hindu law texts, therefore, support the proposition that severance in status is brought about by unilateral exercise of discretion.</h4><h4 style=\"margin-top:0cm\">28. Though in the beginning there appeared to be a conflict of views, the later decisions correctly interpreted the Hindu law texts. This aspect has been considered and the law pertaining thereto precisely laid down by the Privy Council in a series of decisions: see Suraj Narain v. Iqbal Narain [(1912) ILR 35 All 80 (PC)] ; Giria Bai v. Sadashiv Dhundiraj [(1916) ILR 43 Cal 1031 (PC)] ; Kawal Narain v. Budh Singh [(1917) ILR 39 All 496 (PC)] ; and Bamalinga Annavi v. Naravana Annavi [(1922) ILR 45 Mad 489 (PC)] . In Syed Kasam v. Jorawar Singh [(1922) ILR 50 Cal 84 (PC)] the Judicial Committee, after reviewing its earlier decision laid the settled law on the subject thus:</h4><h4 style=\"margin-top:0cm\">“It is settled law that in the case of a joint Hindu family subject to the law of the Mitakshara, a severance of estate is effected by an unequivocal declaration on the part of one of the joint holders of his intention to hold his share separately, even though no actual division takes place….”</h4><h4 style=\"margin-top:0cm\">So far, therefore, the law is well settled, namely, that a severance in estate is a matter of individual discretion and that to bring about that state there should be an unambiguous declaration to that effect are propositions laid down by the Hindu law texts and sanctioned by authoritative decisions of Courts. But the difficult question is whether the knowledge of such a manifested intention on the part of the other affected members of the family is a necessary condition for constituting a division in status. Hindu law texts do not directly help us much in this regard, except that the pregnant expressions used therein suggest a line of thought which was pursued by Courts to evolve concepts to meet the requirements of a changing society. The following statement in Vyavahara Mayukha is helpful in this context:</h4><h4 style=\"margin-top:0cm\">“…severance does indeed result by the mere declaration” ‘I am separate from thee’ because severance is a particular state (or condition) of the mind and the declaration is merely a manifestation of this mental state (or condition).”</h4><h4 style=\"margin-top:0cm\">One cannot declare or manifest his mental state in a vacuum. To declare is to make known, to assert to others. “Others” must necessarily be those affected by the said declaration. Therefore a member of a joint Hindu family seeking to separate himself from others will have to make known his intention to the other members of the family from whom he seeks to separate. The process of manifestation may vary with circumstances. This idea was expressed by learned Judges by adopting different terminology, but they presumably found it as implicit in the concept of declaration. Sadasiva Iyer, J., in Soun-dararaian v. Arunachalam Chetty [(1915) ILR 39 Mad 159 (PC)] said that the expression “clearly expressed” used by the Privy Council in Suraj Narain v. Iqbal Narain [(1912) ILR 35 All 80 (PC)] meant “clearly expressed to the definite knowledge of the other coparceners”. In Girja Bai v. Sadashive Dhundiraj [(1916) ILR 43 Cal 1031 (PC)] the Judicial Committee observed that the manifested intention must be “clearly intimated” to the other coparceners. Sir George Lownles in Bal Krishna v. Ram Ksishna [(1931) ILR 53 All 300 (PC)] took it as settled law that a separation may be effected by clear and unequivocal declaration on the part of one member of a joint Hindu family to his coparceners of his desire to separate himself from the joint family. Sir John Wallis in Babu Ramasray Prasad Choudhary v. Radhika Devi [(1935) 43 LW 172 (PC)] again accepted as settled law the proposition that “a member of a joint Hindu family may effect a separation in status by giving a clear and unmistakable intimation by his acts or declaration of a fixed intention to become separate.…” Sir John Wallis, C.J., and Kumaraswami Sastri, J. in Kamepalli Avilamma v. Mannem Venkataswamy [(1913) 33 MLJ (746)] were emphatic when they stated that if a coparcener did not communicate, during his life time, his intention to become divided to the other coparceners, the mere declaration of his intention, though expressed or manifested, did not effect a severance in status. These decisions authoritatively laid down the proposition that the knowledge of the members of the family of the manifested intention of one of them to separate from them is a necessary condition for bringing about that member\'s severance from the family.</h4><h4 style=\"margin-top:0cm\">But it is said that two decisions of the Madras High Court registered a departure from the said rule. The first of them is the decision of Madhavan Nair, J. in Rama Ayyar v. Meenakshi Ammal [(1930) 33 LW 384] . There, the learned Judge held that severance of status related back to the date when the communication was sent. The learned Judge deduced this proposition from the accepted principle that the other coparceners had no choice or option in the matter. But the important circumstance in that case was that the testator lived till after the date of the service of the notice. If that was so, that decision on the facts was correct. We shall deal with the doctrine of relating back at a later stage. The second decision is that of a Division Bench of the Madras High Court, consisting of Varadachariar and King, JJ., in Narayana Rao v. Purushotama Rao [ILR 1938 Mad 315, 318] . There, a testator executed a will disposing of his share in the joint family property in favour of a stranger and died on August 5, 1926. The notice sent by the testator to his son on August 3, 1926 was in fact received by the latter on August 9, 1926. It was contended that the division in status was effected only on August 9, 1926, when the son received the notice and as the testator had died on August 5, 1926 and the estate had passed by survivorship to the son on that date the receipt of the notice on August 9, 1926 could not divest the son of the estate so vested in him and the will was, therefore, not valid. Varadachariar, J., delivering the judgment of the Bench observed thus:</h4><h4 style=\"margin-top:0cm\">“It is true that the authorities lay down generally that the communication of the intention to become divided to other coparceners is necessary, but none of them lays down that the severance in status does not take place till after such communication has been received by the other coparceners.”</h4><h4 style=\"margin-top:0cm\">After pointing out the various anomalies that might arise in accepting the contention advanced before them, the learned Judge proceeded to state:</h4><h4 style=\"margin-top:0cm\">“It may be that if the law is authoritatively settled, it is not open to us to refuse to give effect to it merely on the ground that it may lead to anomalous consequences; but when the law has not been so stated in any decision of authority and such a view is not necessitated or justified by the reason of the rules, we see no reason to interpret the reference to ‘communication’ in the various cases as implying that the severance does not arise until notice has actually been received by the addressee or addressees.”</h4><h4 style=\"margin-top:0cm\">We regret our inability to accept this view. Firstly, because, as we have pointed out earlier, the law has been well settled by the decisions of the Judicial Committee that the manifested intention should be made known to the other members of the family affected thereby; secondly, because there would be anomalies on the acceptation of either of the views. Thirdly, it is implicit in the doctrine of declaration of an intention that it should be declared to somebody and who can that somebody be except the one that is affected thereby.</h4><h4 style=\"margin-top:0cm\">29. There is yet another decision of the Madras High Court, which is of Rajamannor, C.J., and Venkataramma Ayyar, J., in Indira v. Sivaprasada Rao [ILR 1953 Mad 245, 256] . There, the testator despatched a telegram addressed to his undivided brother on August 4, evening. In the ordinary course it must have been delivered on August 5. The testator died on August 6 morning. Learned counsel appearing for the brother contended that it had not been established that the telegram reached his client before the testator died and, therefore, the will did not operate on the testator\'s interest in the joint family property. The learned Judges rejected that contention on the basis of the judgment of Varadachariar and King, JJ., in Narayana Rao v. Purushothama Rao [ILR 1938 Mad 315, 318] . As a Division Bench they were bound by the decision of another Division Bench; but the real basis of the decision is found at p. 256:</h4><h4 style=\"margin-top:0cm\">“In the case before us, the telegram was dispatched on the 4th evening and in the ordinary course it must have been delivered on the 5th and the testator died only on the 6th morning.”</h4><h4 style=\"margin-top:0cm\">It appears that in the circumstances of the case the learned Judges presume that the telegram must have reached the testator\'s brother before the testator died. The conclusion arrived at by the learned Judges would certainly be rigid on the said facts. But we cannot agree with the view insofar as they agreed with that expressed by Varadachariar and King, JJ.</h4><h4 style=\"margin-top:0cm\">30. Viswanatha Sastri, J., in Adiyalath Katheesumma v. Adiyalath Beechu elaborately and exhaustively considered the question that is now posed before us. There, a member of a tarwad served a notice of his unambiguous intention to separate from the other members of the family on the Karnavan of the tarwad. The question was whether the communication of his intention to the Karnavan was sufficient. The appeal first came up before Satyanarayana Rao and Panchapagesa Sastri, JJ. Satyanarayana Rao, J., held that the notice was not sufficient to constitute a severance, as it was not served on all the other members of the tarwad; and Panchapagesa Sastri, J., held that the service on the Karnavan or the manager of the joint family was sufficient as he was a representative of the family. As there was difference of view between the learned Judges, the matter was placed before Viswanatha Sastri J., and learned Judge agreed with Panchapagesa Sastri J. But in the course of the judgment the learned Judge went further and held that a unilateral declaration of an intention to become divided on the part of a member of a joint Hindu family effects severance in status and therefore the despatch to, or receipt by, the other members of the family of the communication or notices announcing the intention to divide on the part of one member of the family is not essential or its absence fatal to a severance in status. The conclusions of the learned Judge on the question now raised before us are expressed in two places and they are at pp. 543 and 549:</h4><h4 style=\"margin-top:0cm\">“The only reasonable rule that can be deduced from the texts and several decisions of the Judicial Committee is that the declaration of intention to divide on the part of a member of the family should be clear and unequivocal and should be indicated, manifested, or published in such a manner as is appropriate in the circumstances of the case One method, but not the only method, of such manifestation or publication is by delivering a notice containing a declaration of intention to become divided to the other members of the family.”</h4><h4 style=\"margin-top:0cm\">At p. 549 it is stated:</h4><h4 style=\"margin-top:0cm\">“There must be some manifestation, indication, intimation or expression of that intention to become divided, so as to serve as authentic evidence in case of doubt or dispute. What form that manifestation, expression, or intimation of intention should take would depend upon the circumstances of each case, there being no fixed rule or rigid formula. The despatch to or receipt by the other members of the family of a communication or notice announcing the intention to divide on the part of one member of the family is not essential nor its absence fatal to a severance in status.”</h4><h4 style=\"margin-top:0cm\">31. We agree with the learned Judge insofar as he held that there should be an intimation, indication or expression of the intention to become divided and that what form that manifestation should take would depend upon the circumstances of each case. But if the learned Judge meant that the said declaration without it being brought to the knowledge of the other members of the family in one way or other constitutes a severance in status, we find it difficult to accept it. In our view, it is implicit in the expression “declaration” that it should be to the knowledge of the person affected thereby. An uncommunicated declaration is no better than a mere formation or harbouring of an intention to separate. It becomes effective as a declaration only after its communication to the person or persons who would be affected thereby.</h4><h4 style=\"margin-top:0cm\">32. It is, therefore, clear that Hindu law texts suggested and Courts evolved, by a process of reasoning as well as by a pragmatic approach that, such a declaration to be effective should reach the person or person affected by one process or other appropriate to a given situation.</h4><div><br></div>', '2ece1ede2ac937a5abd5a4b539a9229a.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1963-04-09', 1, '', '', '2021-02-09 23:38:54', '2021-02-09 23:55:33'),
(441, 'iJnHiglyj25Ra77iS8UywV0MZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Private Schools. Supreme Court permits educational institutions to collect fee subject to conditions.', '<h4>ORDER DATED 8 FEBRUARY 2021. (Please see the PDF document)</h4><h4>The hearing of these cases has been commenced and is part heard. But, since the hearing is likely to take some more time, we deem it appropriate to pass interim directions which will address the concerns of all parties in some measure. We propose to stay the impugned order on the following conditions:</h4><h4>(a) The management/school may collect fees for the academic year 2019-2020 as well as 2020-2021 from the students, equivalent to fees amount notified for the academic year 2019-2020, in six monthly installments commencing from 5th March, 2021 and ending on 5th August, 2021.</h4><h4>(b) The Management shall not debar any student from attending either online classes or physical classes on account of non-payment of fees, arrears/outstanding fees including the installments, referred to above, and shall not withhold the results of the examinations of any student on that account.</h4><h4>(c) Where the parents have difficulty in remitting the fee in terms of this interim order, it will be open to those parents to approach the school concerned by an individual representation and the management of the school will consider such representation on a case-to-case basis sympathetically.</h4><h4>(d) The above arrangement will not affect collection of fees for the academic year 2021-2022, which would be payable by the students as and when it becomes due and payable, and as notified by the management/school.</h4><h4>(e) In respect of the ensuing Board examinations for classes X and XII (to be conducted in 2021) the school management shall not withhold the name of any student/candidate on the ground of non-payment of the fee/arrears, if any, on obtaining undertaking of the concerned parent/student.</h4><h4>(f) The above arrangements would be subject to the outcome of these matters including the final directions to be given to the parties and without prejudice to the rights and contentions of the parties in these proceedings.</h4><h4>(g) We also direct the State of Rajasthan to ensure that all government outstanding dues towards unit cost payable to respective unaided schools are settled within one month from the today and, in any case, before 31st March, 2021</h4>', '36caa7542ddb4b9ea5b6c499729b5b1c.jpg', 'ba002d80c53dcd25b8ce92246b5c6da4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-08', 1, '', '', '2021-02-10 00:17:46', '2021-02-10 00:27:32'),
(442, 'QECmosCCY4hzAsV9k486PrM4e', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Minerva Mills Ltd vs Union of India ', '<h4></h4><h2 style=\"text-align: center;\"><font color=\"#9c0000\"><span style=\"font-size: 21px;\"><b>Minerva Mills Ltd vs Union of India</b></span></font><br></h2><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\">Writ Petitions Nos. 356-361 of 1977, decided on 9 May 1980 and 31 July 1980</span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\">Reported in (1980) 3 SCC 625</span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\">Chief Justice Y.V. Chandrachud, Justice P.N. Bhagavati, Justice  A.C. Gupta, Justice N.L. Untwalia and Justice P.S. Kailasam</span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: center;\"><span style=\"text-align: left; font-size: 21px;\"><font color=\"#9c0000\">Please download PDF file to read the Judgment</font></span><span style=\"font-size: 1.3125rem; color: rgb(156, 0, 0);\"> </span></div><div style=\"text-align: center; \"><br></div><div style=\"text-align: center; \"><br></div>', 'c1af8cf76eaf2504cad894e1bc1d2c95.PNG', 'e01fae9592c5b595b07760fa69344945.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1980-05-09', 1, '', '', '2021-02-10 02:55:57', '2021-02-20 21:34:49');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(443, 'zDIBcVI8Sa5hSMHGVuH0IlwkO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Insolvency and Bankruptcy Code. Section 10A is retrospective. Suspension of initiation of Corporate Insolvency Resolution Process is attracted to applications filed before 5 June 2020. Supreme Court. ', '<h4>Ramesh Kymal vs M/s Siemens Gamesa Renewable Power Pvt Ltd. <br>Civil Appeal No. 4050 of 2020 decided on 9 February 2021. Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/27296/27296_2020_36_1501_26013_Judgement_09-Feb-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/27296/27296_2020_36_1501_26013_Judgement_09-Feb-2021.pdf</a><br>Justice Dr Dhananjaya Y Chandrachud<br>Justice MR Shah </h4><h4>Relevant paragraphs: 6 ..Section 10A reads as follows:<br><i>“10A. Suspension of initiation of corporate insolvency resolution process.— Notwithstanding anything contained in sections 7,9 and 10, no application for initiation of corporate insolvency resolution process of a corporate debtor shall be filed, for any default arising on or after 25th March, 2020 for a period of six months or such further period, not exceeding one year from such date, as may be notified in this behalf:<br>Provided that no application shall ever be filed for initiation of corporate insolvency resolution process of a corporate debtor for the said default occurring during the said period.<br>Explanation – For the removal of doubts, it is hereby clarified that the provisions of this section shall not apply to any default committed under the said sections before 25th March, 2020.” </i><br><font color=\"#ce0000\"><br>8. The issue which falls for determination in this appeal is whether the provisions of Section 10A stand attracted to an application under Section 9 which was filed before 5 June 2020 (the date on which the provision came into force) in respect of a default which has occurred after 25 March 2020. </font><br><br>22. The language of the provision is not always decisive to arrive at a determination whether the provision if applicable prospectively or retrospectively. Justice G.P. Singh in his authoritative commentary on the interpretation of statutes,<br>Principles of Statutory Interpretation,(G.P. Singh, Principles of Statutory Interpretation (1st edn., Lexis Nexis 2015) has stated that:<br><i>“In deciding the question of applicability of a particular statute to past events, the language used is no doubt the most important factor to be taken into account; but it cannot be stated as an inflexible rule that use of present tense or present perfect tense is decisive of the matter that the statute does not draw upon past events for its operation. Thus, the words “a debtor commits an act of bankruptcy” were held to apply to acts of bankruptcy committed before the operation of the Act. The words “if a person has been convicted” were construed to include anterior convictions. The words “has made”, “has ceased”, “has failed” and “has become”, may denote events happening before or after coming into force of the statute and all that is necessary is that the event must have taken place at the time when action on that account is taken under the statute……And the word “is” though normally referring to the present often has a future meaning and may also have a past signification in the sense of “has been. The real issue in each case is as to the dominant intention of the Legislature to be gathered from the language used, the object indicated, the nature of rights affected, and the circumstances under which the statute is passed.”<br></i><br></h4><h4>23. Adopting the construction which has been suggested by the appellant would defeat the object and intent underlying the insertion of Section 10A. <font color=\"#ce0000\">The onset of the Covid-19 pandemic is a cataclysmic event which has serious repercussions on the financial health of corporate enterprises. </font>The Ordinance and the Amending Act enacted by Parliament, adopt 25 March 2020 as the cut-off date. The proviso to Section 10A stipulates that \"no application shall ever be filed\" for the initiation of the CIRP \"for the said default occurring during the said period”. The expression \"shall ever be filed\" is a clear indicator that the intent of the legislature is to bar the institution of any application for the commencement of the CIRP in respect of a default which has occurred on or after 25 March 2020 for a period of six months, extendable up to one year as notified. The explanation which has been introduced to remove doubts places the matter beyond doubt by clarifying that the statutory provision shall not apply to any default before 25 March 2020. The substantive part of Section 10A is to be construed harmoniously with the first proviso and the explanation. <span style=\"color: rgb(206, 0, 0);\">Reading the provisions together, it is evident that Parliament intended to impose a bar on the filing of applications for the commencement of the CIRP in respect of a corporate debtor for a default occurring on or after 25 March 2020; the embargo remaining in force for a period of six months, extendable to one year. Acceptance of the submission of the appellant would defeat the very purpose and object underlying the insertion of Section 10A. For, it would leave a whole class of corporate debtors where the default has occurred on or after 25 March 2020 outside the pale of protection because the application was filed before 5 June 2020.</span></h4><h4><br>24 We have already clarified that the correct interpretation of Section 10A cannot be merely based on the language of the provision; rather it must take into account the object of the Ordinance and the extraordinary circumstances in which it was promulgated. It must be noted, however, that <span style=\"color: rgb(206, 0, 0);\">the retrospective bar on the filing of applications for the commencement of CIRP during the stipulated period does not extinguish the debt owed by the corporate debtor or the right of creditors to recover it.</span><br><br>25 Section 10A does not contain any requirement that the Adjudicating Authority must launch into an enquiry into whether, and if so to what extent, the financial health of the corporate debtor was affected by the onset of the Covid-19 pandemic. <span style=\"color: rgb(206, 0, 0);\">Parliament has stepped in legislatively because of the widespread distress caused by an unheralded public health crisis. It was cognizant of the fact that resolution applicants may not come forth to take up the process of the resolution of insolvencies (this as we have seen was referred to in the recitals to the Ordinance), which would lead to instances of the corporate debtors going under liquidation and no longer remaining a going concern. </span><br><br>26 The date of the <span style=\"color: rgb(206, 0, 0);\">initiation of the CIRP is the date on which a financial creditor, operational creditor or corporate applicant makes an application to the adjudicating authority for initiating the process. On the other hand, the insolvency commencement date is the date of the admission of the application.</span> This distinction is also evident from the provisions of sub-section (6) of Section 7, sub-section (6) of Section 9 and sub-section (5) of Section 10. Section 7 deals with the initiation of the CIRP by a financial creditor; Section 8 provides for the insolvency resolution by an operational creditor; Section 9 provides for the application for initiation of the CIRP by an operational creditor; and Section 10 provides for the initiation of the CIRP by a corporate applicant. NCLAT has explained the difference between the initiation of the CIRP and its commencement succinctly. <br><br>27 We are in agreement with the view which has been taken by the NCLAT for the reasons which have been set out earlier in the course of this judgment. We affirm the conclusion of the NCLAT. (That the provisions of Section 10A are retrospective to cover the CIRP filed earlier to introduction of Seciton 10A) <br></h4><h4><p><br style=\"font-size: 14px;\"></p></h4>', '66a9d15c92e60699a99689ea3385bfa9.PNG', '3b38771f84518d2b2d4c63b855667500.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-09', 1, '', '', '2021-02-10 19:00:14', '2021-02-10 20:05:17'),
(444, '4IrxfFssRPHNrHC094siXPldn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contempt of Courts Act. High Court has no power to take cognizance of contempt of Appellate Tribunal since the Tribunal is not court subordinate to High Court. Karnataka High Court. ', '<h4>Lalsab vs C. M. Kama. C.C.C. 695/2020 (Civil) decided on 5 February 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/363016/1/CCC695-20-05-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/363016/1/CCC695-20-05-02-2021.pdf </a><br><font color=\"#9c0000\">Relevant Paragraphs:  </font>4.<span style=\"white-space: pre;\">	</span>.. It must be borne in mind that the Constitution of India itself makes a distinction between the Courts and the Tribunals. Section 10 of the said Act of 1971 reads thus:</h4><h4><i>\"10. Power of High Court to punish contempts of subordinate courts.- Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself:<br></i></h4><h4><i>Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code (45 of 1860).\"</i><br>5.The words used are \"courts subordinate to it\". This power conferred on High Court under the said Act of 1971 to punish a  person for contempt of the orders passed by a  Court can be exercised provided the concerned Court is subordinate to it.</h4><h4>6. When the Section uses the words \"courts subordinate to it\", it implies that the High Court has an administrative control over the said Courts. Chapter VI under  the Constitution of India has a heading \'Subordinate Courts\'. Article 235 refers to control of the High Court over the subordinate Courts.</h4><h4>7. In paragraph 8 of the decision in the case of Brajnandan Sinha (supra), the Apex Court has observed thus:<br><i>\"8. The word \"Court\" was not defined in the Act and the expression \"Courts subordinate to the High Courts\" would \'prima facie\' mean the Courts of law subordinate to the High Courts in the hierarchy of Courts established for the purpose of administration of justice throughout the Union.\" </i>Even in paragraph 8, the Apex Court has laid emphasis on the Courts being subordinate to the High Courts in the hierarchy of Courts.<br>8. We have carefully perused the provisions of the said Act of 1976. The power to constitute the KAT is vesting in the State Government under sub-section (1) of Section 3. The power to appoint the members including the Chairman vests in the State Government as per sub-section (2) of Section 3. Sub-section (3) of Section 3 provides that at  least  two Members shall be the District Judges. Section 10 confers powers on the KAT to call for return and issue directions about regulating the practice. Section 11(A) provides that the KAT shall have powers of a Civil Court in certain matters. <br>9. Thus, the power of establishing the Tribunal and appointing its members including the Chairman vests in the State Government. Considering the provisions of Article 235 of the Constitution of India, while appointing District Judges as the Members of the KAT, a consultation with the High Court is mandatory. The consultation in this case will have to be construed as concurrence as the deputation of a District Judge as a member of the KAT can be made only by the High Court. The provisions of the said Act of 1976 do not provide for any administrative control by the High Court over the KAT.<br>10.<span style=\"white-space:pre\">	</span>We have also perused the provisions of the Karnataka Appellate Tribunal Regulations, 1979. Even the Regulations do not suggest that the High Court retains any administrative control over the KAT. The KAT  established  under the said Act of 1976 being a Tribunal, in view of Article 227 of the Constitution of India, the High Court shall have the power of superintendence. However, the said Tribunal cannot  be said to be a Court which  is subordinate to the High Court  the administrative control of which vests in the High Court.</h4><h4><font color=\"#9c0000\">11.Therefore, it is not possible to accept the submission that the KAT constituted under the said Act of 1976 is a Court subordinate to the High Court within the meaning of Section 10 of the said Act of 1971. Therefore, an action under the Contempt of Courts Act, 1971 cannot be initiated on the ground of alleged breach of the interim order of the Appellate Tribunal.</font><br><br><br></h4>', '25702f99271ddb671bcf543e1908cbfa.PNG', '8ec77d20e28bd36d6c17bafcde140556.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-05', 1, '', '', '2021-02-10 19:57:16', '2021-02-11 01:57:25'),
(445, 'EgRudr9SQBZzi60aBcNw91UJQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service law. When the conduct of enquiry officer smacks of utter bias and his submission to external authority is writ large in the report-the entire proceedings are liable to be quashed. Karnataka High Court.  ', '<h4>N.S. Nagalakshmi vs Vidyavardhaka Sangha. Writ Petition 50406/2018 decided on 20 January 2021.&nbsp;</h4><h4>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/363062/1/WP50406-18-20-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/363062/1/WP50406-18-20-01-2021.pdf</a><br>Relevant paragraphs: 9. i. Whether the initiation and conduct of disciplinary proceedings are vitiated on account of bias, malafides and being contrary to law?<br>11.<span style=\"white-space:pre\">	</span>One of the cardinal principles of natural justice&nbsp; is nemo debet esse judex in propria causa (no man shall be a judge in his own cause). The deciding authority must be impartial and without bias. The rule that bias vitiates the findings of enquiry proceedings is a rule of natural justice. It is trite law that personal bias or bias of the subject matter is one of those limbs of bias. To appreciate the said principle on the touchstone of personal bias or bias to the subject-matter the&nbsp; test&nbsp; is&nbsp; whether&nbsp; there was a real likelihood of&nbsp; a&nbsp; bias&nbsp; even&nbsp; though&nbsp; such&nbsp; bias&nbsp; has not in fact taken place. It is apposite to refer De Smith in his Judicial&nbsp; &nbsp;Review&nbsp; &nbsp;of&nbsp; &nbsp;Administrative Action,&nbsp; &nbsp;(1980 Edn)&nbsp; &nbsp;at page 262, wherein, the author observes that a real likelihood of bias means at least substantial possibility of bias.<br>In Halsbury\'s Laws of England, 4th Edn., Vol. 2, para 551, it has been indicated that the test of bias is whether a reasonable intelligent&nbsp; man,&nbsp; fully&nbsp; apprised of&nbsp; all the circumstances, would feel a serious apprehension of bias.<br>The<span style=\"white-space:pre\">	</span>Divisional Court of<span style=\"white-space:pre\">	</span>the Kings<span style=\"white-space:pre\">	</span>Bench, <i>in R.v.Sunderland&nbsp; &nbsp;Justices,&nbsp; &nbsp;(1901)&nbsp; &nbsp;2&nbsp; &nbsp;KB&nbsp; &nbsp;357,&nbsp; &nbsp;373</i>,&nbsp; has&nbsp; held that the Court will have to judge the matter as a reasonable man would judge of any matter in the conduct of his own business.<br>Later, the Divisional Court of the Kings Bench, in R.v.Sussex Justices, 1923 All ER 233, has again&nbsp; held&nbsp; in answer to the question whether there was a real likelihood of bias depends not upon what actually was done but upon what might appear to be done.<br>The aforesaid principle is reiterated&nbsp; in&nbsp; acceptance&nbsp; by&nbsp; the Apex Court in <i>Manak Lal vs Dr. Prem Chand</i> reported in <i>AIR 1957 SC 425</i>, wherein the Hon’ble Apex Court has held that the&nbsp; test is not whether in fact, a bias has&nbsp; affected the&nbsp; judgment; the&nbsp; test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal&nbsp; might have operated against him in the final decision of the&nbsp; tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done.<br>The aforesaid principles with regard to bias are considered, iterated and elaborated by the Hon’ble Apex Court in the&nbsp; subsequent judgment in the case of K. Parthasarathi vs State of Andra Pradesh,&nbsp; reported&nbsp; in&nbsp; <i>(1974)&nbsp; 3&nbsp; SCC&nbsp; 459, </i>wherein the Apex Court at paragraphs 14, 15, 16 and 17, has held as follows:<i><br>“14. The test of likelihood of bias&nbsp; which&nbsp; has&nbsp; been applied in a number of cases is based on the “reasonable apprehension” of a reasonable man fully cognizant of the facts. The courts have quashed decisions on the strength of&nbsp; the reasonable suspicion&nbsp; &nbsp;of the party aggrieved without having made any finding that a real likelihood of bias in fact existed (see R. v. Huggins [(1895) 1 QB 563] ; R. v. Sussex, JJ., ex. p. McCarthy [(1924) 1 KB 256] ; Cottle v. Cottle [(1939) 2 All ER 535] ; R. v. Abingdon, JJ. ex. p. Cousins [(1964) 108 SJ 840].) But in R. v. Camborne, JJ. ex. p Pearce [(1955) 1 QB 41 at 51] the Court, after a review of the relevant cases held that real likelihood of bias was the proper test and that a real likelihood of bias had to be made to appear not only from the materials&nbsp; in fact ascertained by the party complaining, but from such further facts as he might&nbsp; readily&nbsp; have&nbsp; ascertained and easily verified in the course of his inquiries.<br>15.The question then is: whether a real likelihood of bias existed is to be determined on the probabilities to be inferred from the circumstances by court objectively, or, upon the basis of the impressions that might&nbsp; reasonably&nbsp; be left on the minds of the party aggrieved or the public at large.<br>16.The tests of&nbsp; “real&nbsp; likelihood”&nbsp; and “reasonable&nbsp; suspicion”&nbsp; are&nbsp; really&nbsp; inconsistent&nbsp; &nbsp;with each other. We think that the reviewing authority must make a determination on&nbsp; the&nbsp; basis&nbsp; of&nbsp; the&nbsp; whole evidence before it, whether a reasonable man would&nbsp; in the circumstances infer that there is real likelihood of&nbsp; bias. The Court&nbsp; must&nbsp; look&nbsp; at&nbsp; the&nbsp; impression&nbsp; which other people have. This follows from the principle that justice must not only be done but seen to be done.&nbsp; If&nbsp; right minded persons would think that there is real likelihood of bias on&nbsp; the&nbsp; part&nbsp; of&nbsp; an inquiring officer, he must not conduct&nbsp; the enquiry; nevertheless, there must be a real likelihood of bias. Surmise or&nbsp; conjecture&nbsp; would&nbsp; not&nbsp; be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer&nbsp; will&nbsp; be&nbsp; prejudiced against the delinquent. The Court will not inquire whether he was really prejudiced. If&nbsp; &nbsp;a reasonable man would think on&nbsp; the&nbsp; basis&nbsp; of&nbsp; the existing circumstances that he is likely to be prejudiced, that is sufficient to quash&nbsp; the&nbsp; decision [see per Lord Denning, H.R. in Metropolitan Properties&nbsp; Co.&nbsp; (F.G.C.)&nbsp; Ltd.&nbsp; v.&nbsp; Lannon&nbsp; [(1968)&nbsp; 3&nbsp; WLR 694 at 707] ]&nbsp; We&nbsp; should&nbsp; not,&nbsp; however,&nbsp; be&nbsp; understood&nbsp; to deny that the Court might with greater&nbsp; propriety&nbsp; apply the “‘reasonable suspicion” test in criminal or in proceedings analogous to criminal proceedings.<br>17.As there was real likelihood of bias in the sense explained above, we think that the inquiry and the orders based on the inquiry were&nbsp; bad.&nbsp; The&nbsp; decision of this Court in the State of Uttar Pradesh v. Mohammad Nooh [AIR 1958 SC 86 : 1958 SCR 595 : 1958 SCJ 242] makes it clear that if an inquiring&nbsp; officer adopts a procedure which is contrary to the rules of natural justice, the ultimate decision based on his report of inquiry is liable to be quashed. We see no reason for not applying the same principle here as we find that the inquiring officer was biased.”</i><br>The facts obtaining in the case at hand qua&nbsp; the&nbsp; proceedings before the Enquiry Officer is to be considered on the bedrock of the principles enunciated by the Apex Court in the afore-extracted judgments as to whether the Enquiry Officer could have acted as a judge of his own cause and the proceedings vitiated on account of personal bias or bias to the subject matter on the part of the Enquiry Officer.&nbsp;<br>In terms of the narration of dates, events and findings of the Enquiry Officer, at every stage, the Enquiry Officer deliberately adopts a strange procedure unknown to law, observes all the documents in his report, none of which were marked as no witnesses were examined. In terms of the above findings, it cannot but be concluded that the Enquiry Officer conducted the proceedings in a hottest haste without marking any documents or recording any evidence and exparte, as the petitioner was not a party in the proceedings before the Enquiry Officer, which would clearly mean that the Enquiry Officer wanted to hold the petitioner guilty by justifying the charges that he had himself framed against the&nbsp; petitioner.&nbsp; It can be&nbsp; without a shadow of a doubt concluded that the Enquiry Officer acted as&nbsp; a judge of his own cause and saw to that the petitioner was held guilty of the charges with a malafide intention. The decision of the Enquiry Officer would be unmistakably vitiated on account&nbsp; of personal bias or bias of the subject matter, which is one of the limbs of bias, as any right minded person looking at the conduct of the Enquiry Officer in conclusion of the enquiry without following any canon of law, would think that circumstances did exist to hold that the Enquiry Officer was biased against the petitioner and in favour of his own cause. It is not on the basis surmise or conjecture that this finding is arrived at but on the afore-narrated facts. The Enquiry Officer did not sit&nbsp; with&nbsp; an open mind to hold an impartial enquiry which is an essential&nbsp; part of principles of natural justice. The bias in favour of the department had so badly effected the Enquiry Officer’s whole faculty of reasoning as he holds the petitioner guilty in such a coarse manner that it becomes apparent that he was merely carrying some command&nbsp; from&nbsp; the&nbsp; Management,&nbsp; who&nbsp; perhaps&nbsp; had directed ‘FIX HER UP’. Writ Petition allowed</h4>', 'f84d05efd7b3c00ea52f08df85241319.jpg', '1a26032e78fafedd821f113ed633a182.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-20', 1, '', '', '2021-02-10 23:15:32', '2021-02-10 23:15:32'),
(446, '7aMhAqQAwVl6htcwoZxeye9MH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Waman Rao vs Union of India', '<h3><div style=\"text-align: center;\"><span style=\"font-size: 1.53125rem; color: rgb(156, 0, 0);\">Waman Rao v. Union of India</span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.53125rem;\">Writ Petitions Nos. 656-660 of 1977 and connected matters. </span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.53125rem;\">Decided on 13 November 1980</span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.53125rem;\">(1981) 2 SCC 362</span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.53125rem;\">Chief Justice Y.V.Chandrachud, Justice. P.N.Bhagwati, Justice. Krishna Iyer, Justice. Tulzapurkar and Justice. A.P. Sen.</span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.53125rem;\"><br></span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.53125rem;\">Please download PDF to read</span></div></h3><p style=\"text-align: center; \"><br></p>', '8f858abccf3e341907409d27ec5fc249.jpeg', '9e881057806a2ba5e7d9a53011c01a7c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1980-11-13', 1, '', '', '2021-02-10 23:44:53', '2021-02-10 23:46:51'),
(447, 'a8EA4mg6wvJRfKYSPqAQCxhuV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Execution of Decree. Courts must follow the maxim -Let justice be done though the heavens fall- while dealing with unscrupulous judgment debtors. Karnataka High Court ', '<h4>M/s. Janardhan Enterprises vs G.Kumar. Writ Petition 12639/2020 decided on 8 February 2021.&nbsp;</h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/363125/1/WP12639-20-08-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/363125/1/WP12639-20-08-02-2021.pdf</a></h4><h4><font color=\"#ce0000\">Relevant paragraphs:</font><span style=\"color: rgb(206, 0, 0);\">&nbsp;</span>3 (h) Any civilized system of&nbsp; Administration&nbsp; of Justice functions on a fundamental norm of “Justice According to Law” nearly as discussed by Roscoe Pound, in the title&nbsp; article,&nbsp; 12&nbsp; Louisiana&nbsp; Law.&nbsp; Review.&nbsp; 1952&nbsp; published by YALE University Press, New&nbsp; Haven;&nbsp; there&nbsp; may be cases wherein courts grant indulgence even where justice appears to lie in the penumbra of law; however the case at hands is not one such; what the learned Judge of the court below has done&nbsp; by the impugned order reminds&nbsp; an allegory ascribed to the Roman&nbsp; stoic&nbsp; philosopher&nbsp; Seneca (c.4 BC-AD&nbsp; 65);&nbsp; in&nbsp; his&nbsp; work&nbsp; De Ira (On Anger); he narrates an event: a Roman statesman&nbsp; Gnaeus Calpurnius Piso, who in a fit of anger had ordered the execution of a soldier who had returned&nbsp; alone&nbsp; after&nbsp; enjoying his leisure, leaving his comrade;&nbsp; Piso&nbsp; had&nbsp; assumed that soldier had killed the comrade; however, just before the execution of the soldier, the missing comrade arrived on the scene; therefore, a Centurion who was ordained to oversee the execution, stopped beheading; all they went back to Piso and pleaded for suspension of the warrant of execution on the ground of innocence of the soldier; however, this made Piso so angry that he ordered&nbsp; the execution of all the three: the execution of the solider&nbsp; was to be carried out as the order was already given; the Centurian was ordered to be executed for failing to oversee the execution for which he was appointed; in addition, the comrade was ordered to be executed since his appearance caused two innocent persons loosing their lives.</h4><h4><font color=\"#ce0000\">(i) What is stated above is&nbsp; the&nbsp; historic&nbsp; background that led to Seneca coining the maxim f?at j?stitia ruat cælum \"Let justice be done though the heavens fall\"; the maxim signifies the belief that, justice must be realized regardless of consequences; this maxim became popular after the noted judge William Murray’s, decision in John Wilkes Case in 1770; since then,&nbsp; the&nbsp; sages&nbsp; of&nbsp; law&nbsp; continued to use the maxim to dispel the argument of undesirable consequences often pressed into service for resisting the execution of decrees &amp; orders of courts; the impugned order runs counter to the spirit of the maxim.</font><br>(k) Learned counsel for the&nbsp; respondent&nbsp; pleaded with passion that he has already filed&nbsp; an&nbsp; application&nbsp; for&nbsp; the modification of the decree for excluding the small premises in question and therefore a direction be issued to the court below to consider the same; this court declines to accede to that request, because admittedly, he is not the owner of that premises too; he has neither produced any evidence either in the court below or before this court to show that he has paid any rent for the said&nbsp; premises;&nbsp; in fact, he has not taken&nbsp; up such a plea&nbsp; at all;&nbsp; apparently, he&nbsp; is squatting on this property, free of cost and still he wants&nbsp; to retain it for enjoyment;&nbsp; he&nbsp; has troubled the petitioners&nbsp; all through; however, the rejection of this contention shall not come in the way of the issue as to ownership of the subject premises being litigated by the&nbsp; right&nbsp; persons,&nbsp; if&nbsp; any, in an appropriate proceeding;&nbsp;<span style=\"color: rgb(99, 0, 0);\">&nbsp;</span><font color=\"#ce0000\">a&nbsp; loud&nbsp; message&nbsp; needs to go to the circles that be, that the courts would&nbsp; not&nbsp; tolerate the unscrupulous litigants. </font>In the above circumstances, this writ petition succeeds; the impugned order to the extent it excludes the smaller portion of 150 sft. from execution, is set at naught; the learned judge of the Executing Court is requested to accomplish the execution of the remaining part of the decree that comprises the said smaller premises, forthwith, if necessary with the police aid, and further, to report compliance to the Registrar General of this Court.<br><br></h4><div><br></div>', 'cc47aff3eb44707c32a3fbdce47929f0.jpg', 'ee65305372656d52c3d49561fff9d5ff.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-08', 1, '', '', '2021-02-11 00:18:34', '2021-02-11 00:21:19'),
(448, '7MvnKohB6twQdFnx5soDk5xw8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Lok Adalat award in respect of cheque bounce case. Amount can be recovered by Fine Levy Warrant under Section 421 Cr.P.C. Karnataka High Court. ', '<h4><b>M.Vijay Nayak vs M/s. Sri.Sai Book Manufacturers. </b></h4><h4><b>Criminal Revision Petition 909/2017, decided on 4 February 2021. </b></h4><h4><b>Justice K.S. Mudagal</b></h4><h4><b><br></b></h4><h4><b>6..Respondent sought to execute the lokadalath award before the Trial Court. On his application, the Trial Court by the impugned order dated 25.04.2017 issued Fine Levy Warrant against the petitioner.<br></b></h4><h4><b>8 &amp; 10.&nbsp; Sri.N.Ravindranath Kamath, learned counsel for the petitioner submits that an award passed by the lok-adalat is deemed to be a decree of Civil Court by virtue of Section 21 of the Legal Services Authorities Act. Therefore, the only remedy of the respondent was to execute the said award by filing petition under Order XXI of CPC. In support of his contentions, he relies upon the following judgments: (i) K<i>.N.Govindan Kutty Menon vs. C.D. Shaji (2012) 2 SCC 51</i> (ii) <i>Bhargavi Constructions and another vs. Kothakapu Muthyam Reddy and others (2018) 13 SCC 480.</i></b></h4><h4><b><br></b></h4><h4><b>11. Per contra,&nbsp; Sri. B.A.Chandrashekar learned counsel for the respondent justifies the impugned order on the ground that in the agreement as well as in the award of the lokadalath there is a specific clause enabling the respondent to enforce the award and seek recovery of the amount due as fine.&nbsp;</b></h4><h4><b><br></b></h4><h4><b>12. Having regard to the rival contentions the questions that arise for consideration are <font color=\"#9c0000\">“whether Section 21 of the Legal Services Authorities Act or the judgment in Govindan Kutty Menon’s case bar the respondent from seeking recovery of the dues as fine and the Trial Court from issuing process for recovery of the same.”?</font><br>13. Section 21&nbsp; of&nbsp; the&nbsp; Legal&nbsp; Services Authorities Act reads as follows:<br></b></h4><h4><i><b>“21.<span style=\"white-space:pre\">	</span>Award<span style=\"white-space:pre\">	</span>of<span style=\"white-space:pre\">	</span>Lok<span style=\"white-space:pre\">	</span>Adalat.—<span style=\"white-space:pre\">	</span>[(1) Every award of the Lok Adalat shall be deemed to be a decree of a civil court or, as the case may be, an order of any other court and where a compromise or settlement&nbsp; has been arrived at, by a Lok Adalat in a case referred to it under sub-section (1) of section 20, the court-free paid in such case shall be refunded in the manner provided under the Court Fees Act, 1870&nbsp; (7&nbsp; of 1870).]</b></i></h4><h4><i><b>(2) Every award made by a Lok Adalat shall be final and binding on all the parties to&nbsp; the dispute, and no appeal shall lie to any court against the award.</b></i></h4><h4><b><span style=\"font-style: italic;\"></span>14.The above provision makes it clear that it provides for deeming the award of the lok-adalat as a decree of a Civil Court, as well as an order of any&nbsp; other Court, that means the Court which referred the matter to lok-adalat. In the case on hand, the matter was referred to lok-adalat by criminal Court. Therefore, by virtue of Section 21 of Legal Services Authorities Act, the lok-adalat award becomes the order of the said Court.&nbsp;<br>15.In Govindan Kutty Menon’s case, ...the question was whether an&nbsp; award passed on reference from the Magistrate’s Court (criminal Court) could be executed invoking Section 21 of the Legal Services Authorities Act.<br>16.The Hon’ble Supreme Court interpreting Section 21 of the Legal Services Authorities Act held that even a matter referred by a criminal Court is covered under Section 21 and award passed on such reference also can be executed.<font color=\"#9c0000\">&nbsp;Nowhere in the judgment, the Hon’ble Supreme Court said that the criminal Court is barred from executing the award passed on its reference or in such&nbsp; case&nbsp; only&nbsp; order XXI CPC applies.&nbsp;</font><br></b></h4><h4><b>17. Then what is the law applicable is the question.<span style=\"color: rgb(206, 0, 0);\">&nbsp;</span><font color=\"#9c0000\">For recovery of the fine by a criminal Court, the enabling provision is Section 421 of Cr.P.C. Section 421 of Cr.P.C. empowers the Court passing&nbsp; the order of sentence to issue Fine Levy Warrant for recovery of the fine amount, if the offender fails to&nbsp; pay the fine. Section 143 of the Negotiable Instruments Act 1881 (‘the NI Act’ for short) also states that offence under Section 138 of NI Act shall be tried as per Sections 262 to 265 of Cr.P.C. Therefore, the Trial Court was justified in issuing the Fine Levy Warrant invoking Section 421 of Cr.P.C. By such of its action in the considered opinion of this Court the Trial Court in no way transgressed the judgment of the Hon’ble Supreme Court in Govindan Kutty Menon’s case. Therefore, the judgment in Bhargavi Construction’s case and Article 141 of the Constitution do not in any way advance the case of&nbsp; the petitioner.</font><br></b></h4><h4><b>18. The contention that the petitioner has filed execution petition before the City Civil Court to execute the similar award passed in his favour, therefore that becomes precedent for respondent, deserves no merit. Merely because he has opted for such course, he cannot compel others to follow the same, that too when award itself enables the respondent to recover that as fine amount.<br></b></h4><h4><b>19. Learned counsel for the respondent submits that the petitioner on voluntarily entering into a settlement is taking ‘U’ turn on vexatious contentions and since 2014, unnecessarily persecuting the respondent. He submits that such action of the petitioner lacks bonafides and amounts to abuse of the process of the Court.&nbsp; Having&nbsp; regard to the above discussions, this Court finds sufficient force in the said submission. Therefore, the petition&nbsp; is dismissed with cost of Rs.5,000/-.</b><br></h4>', 'bc232e3106127d452a8a06d09b9e9e7c.JPG', '97cf904437dd79ec25e40cbfc1c51a35.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-16', 1, '', '', '2021-02-11 03:18:49', '2023-01-16 14:00:32'),
(2572, 'ESSCuN0zqriQ0coMIe4zq6joZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'N.I. Act. Section 138. When cheque is delivered for collection within the territorial jurisdiction of a Court where the payee maintains the account, proceedings cannot be initiated in other place. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Dharmasai Chinnappagowda Vs B.H. Ramachandra.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 5786 of 2018 decided on 4 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The respondent has filed a private complaint under\r\nSection 200 of Cr.P.C. for the offence punishable under\r\nSection 138 of Negotiable Instruments Act, alleging that the\r\ncheque which was issued by accused No.1 towards legal\r\nenforceable debt when presented for realisation was\r\ndishonoured for want of funds.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Section 142(2) (a) & (b) of N.I. Act specifies that\r\nthe offence under Section 138 of N.I. Act can be tried by the\r\nCourt within whose jurisdiction the branch of the bank where\r\npayee maintains the account is situated, if the cheque is\r\ndelivered through an account.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 7. In the instant case, the cheque was delivered\r\nthrough the bank situated in Bengaluru. Hence, the\r\ncognizance taken by the learned Magistrate at Thirthahalli is\r\none without territorial jurisdiction.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 8. Perusal of the complaint averments and also subject\r\ncheque indicates that accused No.3 is not a signatory to the\r\nsubject cheque so as to constitute commission of the offence\r\npunishable under Section 138 of N.I. Act against the petitioneraccused No.3. Even otherwise, the subject cheque was issued in\r\nrespect of a transaction between the complainant and the\r\naccused No.1 and accused No.3 was not a party to the said <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">transactions. Hence, in the absence of any legally enforceable\r\ndebt against the petitioner-accused No.3 herein, cognizance\r\ntaken by the learned Magistrate for the offence punishable under\r\nSection 138 of the N.I.Act is impermissible.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n 9. In view of the above, continuation of the criminal\r\nproceedings against the petitioner-accused No.3 will be an abuse\r\nof process of law, since the probability of conviction of the\r\npetitioner-accused No.3 is remote and bleak.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> i) The Criminal Petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '21b8b62f4cc468a455e914277d6c3ae4.jpeg', 'f9be1ba213a19b9bbdff665a1b3f30fc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-20', 1, '', '', '2023-01-16 14:56:22', '2023-01-20 03:18:05');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(449, 'YuJOJJpGteWc2NPqlMAvBxeue', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cruelty to animals. Release of seized animals to the accused owner pending investigation is not proper when there are serious allegations of cruelty. Karnataka High Court.', '<h4>Compassion Unlimited Plus Action NGO vs State of Karnataka and another. Criminal Petition 5344/2020 decided on 9 February 2021. </h4><h4>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/363241/1/CRLP5344-20-09-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/363241/1/CRLP5344-20-09-02-2021.pdf</a></h4><h4>Relevant paragraphs: 5..The learned Magistrate ...passed the order directing the concerned police to hand over the interim\r\ncustody of the dogs to the accused.<o:p><br></o:p>6. The main\r\ngrounds urged in the petition is that the case is registered under Section 11\r\nof the Prevention of Cruelty to Animals Act, 1960&nbsp; on the allegation that the animals that are subjected to cruelty\r\ncannot remain in the custody of the owner of such animal, pending\r\ninvestigation.&nbsp; It is the further\r\ncontention that as per Rules 3&nbsp; and 4 of\r\nthe PCA Rules, 2017, the accused cannot retain custody of animals that are\r\nsubjected to cruelty, pending litigation. The Apex Court in ...State of Uttar Pradesh vs Mustakeem... Crl.A.Nos.283- 87/2002 dated 22.02.2002 has held that the allegation in the FIR\r\nwas that the animals were transported for being slaughtered and were tied very\r\ntightly to each other. The criminal case is pending. It is observed that it is\r\nshocked as to how such an order could be passed by the learned Judge of the\r\nHigh Court in view of the very allegations and in view of the charges, which the accused may face in the criminal trial and set aside the\r\norder and directed that these animals be kept in the Goshala.<br>7. The\r\nlearned counsel for the petitioner also relied on the judgment of the Apex\r\nCourt in the case of Pinjrapole Deudar and another vs Chakram Moraju Nat and others reported in (1998) 6 SCC 520, has held that an important consideration\r\nwhile granting custody to Pinjrapole is to examine the health condition of the\r\nanimals at the time when they were seized. Referring this judgment, the learned\r\ncounsel would submit that in the present case also the animals were in very\r\npoor condition and are presently being treated under intensive care.<br>8. The\r\nlearned counsel would submit that Article 51A(g) of the Constitution of India\r\nconfers a constitutional duty on all citizens and the State to have compassion\r\nfor living creatures. The Trial Court has simply failed to consider the cost of\r\nmaintenance directed to be awarded and erroneously directed to pay the amount\r\nof Rs.5,000/-. The learned Magistrate did not apply his mind to the invoking of\r\nthe offences against<br>9. The\r\nlearned counsel during the course of his arguments, he reiterated the grounds\r\nurged in the petition and also relied upon the judgment of the Apex Court in\r\nthe case of Sanjai Tiwari vs The State of Uttar Pradesh and another passed in\r\nCrl.A.No.869/2020, wherein the Apex Court in paragraph No.13 of the judgment,\r\nextracted paragraph Nos.26 and 27 of the judgment in the case of H.S.Choudhary,\r\nwho sought the relief before the High Court to quash the order of the Special\r\nJudge, which revision was also dismissed by the High Court.&nbsp; While dismissing the appeals filed by H.S.\r\nChoudhary,&nbsp; the Apex Court observed in\r\nparagraph Nos.26 and 27 as follows:<br><i>“26. Even if there are million questions of law to be deeply\r\ngone into and examined in a criminal case of this nature registered against\r\nspecified accused persons, it is for them and them alone to raise all such\r\nquestions and challenge the proceedings initiated against them at the\r\nappropriate time before the proper forum and not for third parties under the\r\ngarb of public interest litigants.</i>&nbsp;</h4><h4>17. Before\r\nconsidering the grounds urged in the petition and also the contentions raised\r\nby the parties, it is appropriate to refer to Section 11 of the PCA Act, which\r\nreads as follows:<br><i>“11. Treating animals cruelly.– (1) If any person-<o:p><br></o:p>(a) beats,\r\nkicks, over-rides, over-drives, over- loads, tortures or otherwise treats any\r\nanimal so as to subject it to unnecessary pain or suffering or causes, or being\r\nthe owner permits, any animals to be so treated; or<o:p>&nbsp;<br></o:p>(b) employs in\r\nany work or labour or for any purpose any animal which, by reason of its age or\r\nany disease, infirmity, wound, sore or other cause, is unfit to be so employed\r\nor, being the owner, permits any such unfit animal to be employed; or<o:p>&nbsp;<br></o:p>(c) wilfully\r\nand unreasonably administers any injurious drug or injurious substance to any\r\nanimal or wilfully and unreasonably causes or attempts to cause any such drug\r\nor substance to be taken by any animal; or<o:p>&nbsp;<br></o:p>(d) conveys or\r\ncarries, whether in or upon any vehicle or not, any animal in such a manner or\r\nposition as to subject it to unnecessary pain or suffering; or<o:p>&nbsp;<br></o:p>(e) keeps or\r\nconfines any animal in any cage or other receptacle which does not measure\r\nsufficiently in height, length and breadth to permit the animal a reasonable\r\nopportunity for movement; or<o:p>&nbsp;<br></o:p>(f) keeps for\r\nan unreasonable time any animal chained or tethered upon an unreasonably short\r\nor unreasonably heavy chain or cord; or&nbsp;<o:p>&nbsp;</o:p><o:p>&nbsp;<br></o:p>(g) being the\r\nowner, neglects to exercise or cause to be exercised reasonably any dog\r\nhabitually chained up or kept in close confinement; or<o:p>&nbsp;<br></o:p>(h) being the\r\nowner of any animal, fails to provide such animal with sufficient food, drink\r\nor shelter; or<o:p>&nbsp;<br></o:p>(i) without\r\nreasonable cause, abandons any animal in circumstances which tender it likely\r\nthat it will suffer pain by reason of starvation thirst; or<o:p>&nbsp;<br></o:p>(j) wilfully\r\npermits any animal, of which he is the owner, to go at large in any street,\r\nwhile the animal is affected with contagious or infectious disease or, without\r\nreasonable excuse permits any diseased or disabled animal, of which he is the\r\nowner, to die in any street; or<o:p>&nbsp;<br></o:p>(k) offers for\r\nsale or, without reasonable cause, has in his possession any animal which is\r\nsuffering pain by reason of mutilation, starvation, thirst, overcrowding or\r\nother ill- treatment; or<o:p>&nbsp;<br></o:p>(l) mutilates\r\nany animal or kills any animal (including stray dogs) by using the method of\r\nstrychnine injections, in the heart or in any other unnecessarily cruel manner\r\nor;<o:p>&nbsp;<br></o:p>(m) solely with\r\na view to providing entertainment-<o:p>&nbsp;<br></o:p>(i) confines\r\nor causes to be confined any animal (including tying of an animal&nbsp; as a bait in a tiger or other sanctuary) so\r\nas to make it an object or prey for any other animal; or<o:p>&nbsp;<br></o:p>(ii) incites\r\nany animal to fight or bait any other animal; or&nbsp;<br>(n) organises,\r\nkeeps, uses or acts in the management or, any place for animal fighting or for\r\nthe purpose of baiting any animal or permits or offers any place to be so used\r\nor receives money for the admission of any other person to any place kept or\r\nused for any such purposes; or<o:p>&nbsp;<br></o:p>(o) promotes\r\nor takes part in any shooting match or competition wherein animals are released\r\nfrom captivity for the purpose of such shooting;<o:p>&nbsp;<br></o:p>he shall be punishable, in the case of a first offence, with\r\nfine which shall not be less than ten rupees but which may extend to fifty\r\nrupees and in the case of a second or subsequent offence committed within three\r\nyears of the previous offence, with fine which shall not be less than\r\ntwenty-five rupees but which may extend, to one hundred rupees or with\r\nimprisonment for a term which may extend, to three months, or with both.<o:p>&nbsp;<br></o:p>(2) For the\r\npurposes of sub-section (1), an owner shall be deemed to have committed an\r\noffence if he has failed to exercise reasonable care and supervision with a\r\nview to the prevention of such offence:<o:p>&nbsp;<br></o:p>Provided that where an owner is convicted permitting cruelty\r\nby reason only of having failed to exercise such care and supervision, he shall\r\nnot be liable to imprisonment without the option of a fine.<o:p>&nbsp;<br></o:p>(3) Nothing in\r\nthis section shall apply to –<o:p>&nbsp;<br></o:p>(a) the\r\ndehorning of cattle, or the castration or branding or nose-roping of any animal\r\nin the prescribed manner, or<o:p>&nbsp;<br></o:p>(b) the\r\ndestruction of stray dogs in lethal chambers or by such other methods as may be\r\nprescribed; or<br>(c) the\r\nextermination or destruction of any animal under the authority of any law for\r\nthe time being in force; or<o:p>&nbsp;<br></o:p>(d)any matter\r\ndealt with in Chapter IV; or<o:p>&nbsp;<br></o:p>(e)the\r\ncommission or omission of any act in the course of the destruction or the\r\npreparation for destruction of any animal as food for mankind unless such\r\ndestruction or preparation was accompanied by the infliction of unnecessary\r\npain or suffering.”</i><br></h4><h4>18. Rule 3 of\r\nthe Prevention of Cruelty to Animals (Care and Maintenance of Case Property\r\nAnimals) Rules, 2017 reads as follows:<br><i>“3. Custody of animals pending litigation.- When an animal\r\nhas been seized under the provision of the Act or the rules made therunder-<o:p>&nbsp;<br></o:p>(a) the\r\nauthority seizing the animal shall ensure health inspection, identification and\r\nmaking such animal, through the jurisdictional veterinary officer deployed at\r\nGovernment Veterinary Hospital of the area and marking may be done be ear\r\ntagging or by chipping or by any less irksome advance technology but marking by\r\nhot branding, cold branding and other injurious marking shall be prohibited;<br>(b) the\r\nmagistrate may direct the animal to be housed at an infirmary, pinjrapole,\r\nSPCA, Animal Welfare Organisation or Gaushala during the pendency of the\r\nlitigation.</i></h4><h4><font color=\"#ce0000\">28.Having taken note of the principles laid down in the Judgment, it is clear that the very object and wisdom of legislature have to be taken note of and also the expanding of the definition and scope of Article 51-A(g) and (h) and also Article 21 of the Constitution of India, which says environment which includes, all forms of life, including animal life, which are necessary for human life, fall within the meaning of Article 21 of the Constitution of India. It is observed that animals’ well-being and welfare have been statutorily recognized under Section 3 and Section 11 of the PCA Act and the rights framed under the Act. Right to live in a healthy and clean atmosphere and right to get protection from human beings against inflicting unnecessary pain or suffering is a right guaranteed to the animals under Section 3 and Section 11 of the PCA Act read with Article 51- A(g) and (h) of the Constitution of India.&nbsp;</font></h4><h4><font color=\"#ce0000\">29. When such being the case, the Magistrate ought to have taken note of the said fact into consideration. I have already pointed out that the allegation against the accused is that he is treating the animals with cruelty and also he is using the same for making the money particularly keeping the female animals for breeding purpose and the said aspect of greediness of the accused has not been taken care of by the learned Magistrate. The learned Magistrate comes to the conclusion that the permission was not obtained by the Investigating Officer handing over the dogs from the Court, but ought to have taken note of the paramount consideration of the dogs which have been treated with cruelty and the report of the veterinary doctor says that the dogs are sustained injuries, instead of going on technicality ought to have taken note of the paramount consideration of the welfare of the animals that has not been done. Hence, I am of the opinion that the learned Magistrate&nbsp; has committed an error and it requires an interference of this Court.</font></h4><h4><font color=\"#ce0000\">Petition allowed.&nbsp;</font><br></h4><p class=\"MsoNormal\"><o:p></o:p></p><p class=\"MsoNormal\"><o:p></o:p></p><p class=\"MsoNormal\"><o:p></o:p></p><p class=\"MsoNormal\"><o:p></o:p></p><p class=\"MsoNormal\"><o:p></o:p></p><p class=\"MsoNormal\"><o:p></o:p></p><p class=\"MsoNormal\"><o:p></o:p></p><p class=\"MsoNormal\"><o:p></o:p></p><p class=\"MsoNormal\"><o:p></o:p></p><p class=\"MsoNormal\"><o:p></o:p></p><p class=\"MsoNormal\"><o:p></o:p></p><p class=\"MsoNormal\"><o:p></o:p></p><p class=\"MsoNormal\"><o:p></o:p></p><p class=\"MsoNormal\"><o:p></o:p></p><p class=\"MsoNormal\"><o:p></o:p></p><p class=\"MsoNormal\"><o:p></o:p></p><p class=\"MsoNormal\"><o:p></o:p></p><p class=\"MsoNormal\"><o:p></o:p></p><p class=\"MsoNormal\"><o:p></o:p></p><p class=\"MsoNormal\"><o:p></o:p></p><p 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class=\"MsoNormal\"><o:p></o:p></p>', '806cfda12281bdee020950b8b92c92c8.jpg', '55c9686c979786ee2c0869af4223b3e2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-09', 1, '', '', '2021-02-11 20:42:32', '2021-02-11 20:44:46'),
(450, 'iRevKhgtZJbeq3RFO1lh23WHC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Section 138. Accused can be convicted even when the legally enforceable debt is less than the amount mentioned in the cheque. Karnataka High Court. ', '<h4>M.Ramesh Kumar vs Riyaz Ur Rehaman. Criminal Appeal 1857/2019, decided on 3 February 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/363238/1/CRLA1857-19-03-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/363238/1/CRLA1857-19-03-02-2021.pdf</a>&nbsp;<br><font color=\"#ce0000\">Question framed. When the legally enforceable debt due by the accused is less than the amount of the dishonoured cheque, whether he could be convicted for the offence under section 138 of the Negotiable Instruments Act, 1881?</font><br>11. There is a presumption that until contrary is proved, every negotiable instrument duly executed, is for discharge of a debt or a liability. It is not the case of the accused that he either signed 8 cheques or parted with them under any threat or coercion nor is it the case of the accused that the cheques “given” by him were not towards the discharge of any debt or liability due or payable by him to the complainant.<br>12. The position of law in this regard is well settled that<i>,“Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.”, ,&nbsp;</i>vide Bir Singh vs Mukesh Kumar, Criminal Appeal Nos.230-231 of 2019 (@ SLP (CRL) Nos.9334-35 of 2018) disposed of on 06.02.2019.<br>13. In the light of this legal proposition and in the absence of any contra evidence by the accused that cheque in question was not voluntarily “given” by him to the complainant, it may be reasonably presumed that the cheque in question was issued by the accused towards discharge of the legally enforceable debt due by him.<br>14. In the backdrop of the above conclusion, it is significant to note that section 139 of the N.I. Act mandates&nbsp; that the Court shall presume the liability of the drawer of a cheque for the amount for which the cheque is drawn. Nevertheless, the presumption contemplated under section 139 of the N.I. Act is a rebuttable presumption which lays down that unless the contrary is proved, it has to be presumed that the holder of a cheque received the cheque of the nature referred to in section 138 of N.I. Act, for the discharge, in whole or in part, of any debt or other liability.<br>15. ....the amount reflected in the cheque cannot be reconciled to the actual amount due and payable by the accused. In the said circumstance, the question that arises for consideration is,<br><font color=\"#9c0000\">Whether the accused could be held guilty for dishonour of the cheque when the legally enforceable debt due by him is less than the amount of dishonoured cheque?</font><br>16. In order to answer this question, it may be worth to note that the object of Chapter XVII of the N.I. Act is both punitive as well as compensatory and restitutive. It provides for a single forum and single proceeding for enforcement of criminal liability on account of dishonour of the cheque and also for enforcement of the civil liability for realization of the amount due and payable by the drawer of the cheque thereby obviating the need for the creditor to move two different fora for relief.<br><font color=\"#9c0000\">17. Section 138 of the N.I. Act does not bar the conviction of the accused if the debt or liability due by him is found less than the amount reflected in the cheque as long as it is proved that the cheque in question was voluntarily issued in discharge of the whole or part of the debt. </font>The difference in the amount shown in the cheque and the actual amount due by the drawer as on the date of presentation of the cheque may be relevant factor to determine the fine or compensation for the loss caused to the complainant, but the said discrepancy cannot absolve the accused of the consequence of dishonour of the cheque. If such a position is accepted, it would defeat the object of Chapter XVII of the N.I. Act as the drawer of the cheque could conveniently avert the prosecution under Section 138 of the N.I. Act by making payment of a part or fraction of the cheque amount thereby bringing about discrepancy and incongruity in the amount shown in the cheque and the actual amount due as on the date of presentation of the cheque. Therefore, I am unable to accept the reasoning of the Trial Court that on account of the discrepancy in the amount reflected in the cheque and the actual amount due by the accused, the accused cannot be proceeded under section 138 of the N.I. Act. In that view of the matter, the impugned judgment, in my view, cannot be sustained.&nbsp;<br>18. However, insofar as the award of fine or compensation is concerned, the evidence adduced by the parties with regard to the alleged agreement between the parties to pay interest and the long lapse of time taken by the accused to repay the amount to the complainant may be a factor which requires to be considered in view of the law laid down by the Apex Court in M/s Meters and Instruments Private Limited vs. Kanchan Mehta, 2018(1) SCC 560, wherein it is held:<br><i>“12. The sentence prescribed under Section&nbsp; 138 of the Act is upto two years or with fine which may extend to twice the amount or with both. What needs to be noted is the fact that power under Section 357(3) Cr.P.C. to direct payment of compensation is in addition to the said prescribed sentence, if sentence of fine is not imposed. The amount of compensation can be fixed having regard to the extent of loss suffered by the action of the accused as assessed by the Court. The direction to pay compensation&nbsp; &nbsp;can&nbsp; &nbsp;be&nbsp; &nbsp; enforced&nbsp; &nbsp; by&nbsp; default sentence under Section 64 IPC and by recovery procedure prescribed under Section 431 Cr.P.C.”&nbsp;</i><br>Thus, taking into consideration all the above facts and circumstances of the case and for the reasons discussed above, the impugned judgment deserves to be set aside.<br>Accordingly, Criminal Appeal is allowed. T</h4>', '797d54a1a06397368be7cfee01ef01d2.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-03', 1, '', '', '2021-02-11 21:07:37', '2021-02-11 21:11:36'),
(451, 'FkYliWXpOPPwh1zBmyJ5xZUbL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Income Tax Act. All the Directors of the Company cannot be automatically prosecuted for any violation of the Income Tax Act. There has to be specific allegations made against each of the Directors who is intended to be prosecuted. Karnataka High Court.  ', '<h4>M/s. Confident Projects (India) Pvt Ltd and Others vs The Income Tax Department. </h4><h4>Criminal Petition 5480 & 5081 of 2016, decided on 28 January 2021. </h4><h4>Justice Suraj Govindaraj. </h4><h4> </h4><h4><br></h4><h4><font color=\"#ce0000\">Whether all the Directors of the Company can be prosecuted for any violation of the Income Tax Act in terms by relying on the inclusive definition under Section 2(35) of the Income Tax Act?</font><br></h4><h4><br></h4><h4>11.1. It is sought to be contended by Sri.K.V.Aravind, learned Senior Standing Counsel for the respondent that in view of Section 2(35) of Income Tax Act all the persons in charge of the business could be prosecuted. The said section 2(35) of the Income Tax Act is reproduced hereunder for easy reference:</h4><h4><i>2(35) principal officer, used with reference to a local authority or a company or any other public body or any association of persons or any body of individuals, means--</i></h4><h4><i>(a) the secretary, treasurer, manager or agent of the authority, company, association or body, or</i></h4><h4><i>(b) any person connected with the management or administration of the local authority, company, association or body upon whom the Assessing Officer has served a notice of his intention of treating him as the principal officer thereof;</i></h4><h4>11.2. Sri.Vivek Holla, learned counsel for the petitioners would contend that Section 2(35) of the Income Tax Act is more or less in pari materia with Section 138 of Negotiable Instrument Act and as such, he by relying upon the decisions in<i> S.K.Alagh vs. State of Uttar Pradesh and others (2008) 5 SCC 662, Ramkishan Rohtagi\'s case,  National Small Industries Corporation Limited vs. Harmeet Singh Paintal and another (2010) 3 SCC 330, G.N.Verma vs. State of Jharkhand and another (2014) 4 SCC 282 and  Tamil Nadu Electricity Board vs. Rasipuram Textile Private Limited and others (2008) 17 SCC 285 </i>contends that unless a specific averment has been made to implicate the particular Director in the said offence, no criminal prosecution could be initiated against the said Director. </h4><h4>11.3. A perusal of the complaint as filed by respondent-Income Tax Department would indicate that there are only omnibus allegations which had been made against the Directors. The contention and/or the allegation is that the uploading of the income tax returns with false data amounts to misstatement for the purposes of evasion. For this purpose, it would have had to be ascertained as to who has made such a statement for the purpose of initiating action.</h4><h4>11.4. Be that as it may. Since I have answered point Nos.1 and 2 by holding that in the present case there is no misstatement, the question of the Directors being liable for prosecution would not arise.<br></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">11.5. Hence, I answer Point No.4 by holding that all the Directors of the Company cannot be automatically prosecuted for any violation of the Income Tax Act. There has to be specific allegations made against each of the Directors who is intended to be prosecuted and such allegation would have to amount to an offence and satisfy the requirement of that particular provision under which the prosecution is sought to be initiated, more so when the prosecution is initiated by the Income Tax department who has all the requisite material in its possession, and a preliminary investigation has been concluded by the Income Tax department before filing of the criminal complaint.</span><br></h4>', '6a7825cbc04794fde31462f2fbb9b891.JPG', '01c7d40937fbbf87068b1a3286992bfb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-16', 1, '', '', '2021-02-11 23:16:27', '2023-01-16 08:56:58'),
(453, 'twWptTzwVgXOVRDWgyOFxOPM6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act 1996.  Appeal under section 37 would be maintainable against an order refusing to condone delay in filing an application under section 34 to set aside an award. Supreme Court. ', '<h4>Chintels India Pvt Ltd vs Bhayana Builders Pvt Ltd. Civil Appeal 4028/2020 decided on 11 February 2021.<br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/27049/27049_2020_33_1501_26177_Judgement_11-Feb-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/27049/27049_2020_33_1501_26177_Judgement_11-Feb-2021.pdf</a><a href=\"https://main.sci.gov.in/supremecourt/2020/27049/27049_2020_33_1501_26177_Judgement_11-Feb-2021.pdf\" target=\"_blank\"></a></h4><h4>Justice R. F. Nariman, Justice Navin Sinha and Justice K.M. Joseph</h4><h4><font color=\"#9c0000\">1. ...The question raised in this appeal is whether a learned single Judge’s order refusing to condone the Appellant’s delay in filing an application under section 34 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act, 1996”) is an appealable order under section 37(1)(c) of the said Act. </font><br>7. Section 34(2) and (2A) then sets out the grounds on which an arbitral award may be set aside. Section 34(3), which again is material for decision of the question raised in this appeal, reads as follows:<br><i>“(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:<br>Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.”</i><br>7. Section 34(2) and (2A) then sets out the grounds on which an arbitral award may be set aside. Section 34(3), which again is material for decision of the question raised in this appeal, reads as follows:<br><i>“(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:<br>Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.”<br></i>8. A reading of section 34(1) would make it clear that an application made to set aside an award has to be in accordance with both sub-sections (2) and (3). This would mean that such application would not only have to be within the limitation period prescribed by sub-section (3), but would then have to set out grounds under sub-sections (2) and/or (2A) for setting aside such award. What follows from this is that the application itself must be within time, and if not within a period of three months, must be accompanied with an application for condonation of delay, provided it is within a further period of 30 days, this Court having made it clear that section 5 of the Limitation Act, 1963 does not apply and that any delay beyond 120 days cannot be condoned – see State of <i>Himachal Pradesh v. Himachal Techno Engineers and Anr. (2010) 12 SCC 210 </i>at paragraph 5.<br>9. We now come to section 37(1)(c). It is important to note that the expression “setting aside or refusing to set aside an arbitral award” does not stand by itself. The expression has to be read with the expression that follows - “under section 34”. Section 34 is not limited to grounds being made out under section 34(2). Obviously, therefore, a literal reading of the provision would show that a refusal to set aside an arbitral award as delay has not been condoned under sub-section (3) of section 34 would certainly fall within section 37(1)(c). The aforesaid reasoning is strengthened by the fact that under section 37(2)(a), an appeal lies when a plea referred to in sub-section (2) or (3) of section 16 is accepted. This would show that the Legislature, when it wished to refer to part of a section, as opposed to the entire section, did so. Contrasted with the language of section 37(1)(c), where the expression “under section 34” refers to the entire section and not to section 34(2) only, the fact that an arbitral award can be refused to be set aside for refusal to condone delay under section 34(3) gets further strengthened.<br>10&13. In <i>Essar Constructions v. N.P. Rama Krishna Reddy (2000) 6 SCC 94</i>, a judgment rendered under section 39 of the 1940 Act, this Court was faced with the same question as is raised in the appeal before us. The Court ultimately concluded:<br><i>“25. Reading Section 39(1)(vi) and Section 17 together, it wouldtherefore follow that an application to set aside an award whichis rejected on the ground that it is delayed and that no sufficient cause has been made out under Section 5 of the Limitation Act would be an appealable order.”<br></i>19. The reasoning in Essar Constructions (supra) commends itself to us, being on a pari materia provision to that contained in section 37(1)(c) of the Arbitration Act, 1996. We may only add that the reasoning of the aforesaid judgment is further strengthened by our analysis of the additional words “under section 34” which occur in section 37(1)(c), and which are absent in section 39(1)(vi) [the pari materia provision to section 34 of the Arbitration Act, 1996 being section 30 of the Arbitration Act, 1940].</h4><h4><font color=\"#9c0000\">37. Consequently, the question of law is answered by stating that an appeal under section 37(1)(c) of the Arbitration Act, 1996 would be maintainable against an order refusing to condone delay in filing an application under section 34 of the Arbitration Act, 1996 to set aside an award.</font></h4><div><br></div>', '6a5cdbf16d56613f4e7a1b99e4e6bdf9.jpg', '3e2441bff557274dbeb944a54205d3fb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-11', 1, '', '', '2021-02-12 03:11:27', '2021-02-12 03:27:28'),
(454, 'oVsdcwHa7e3cnb34SRa1Lsoly', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'I.R. Coelho vs State of Tamil Nadu', '<h4 style=\"margin-bottom: 0.0001pt; text-align: center; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 24px;\"><b>In the Supreme Court of India.&nbsp;</b></span></font></h4><h4 style=\"margin-bottom: 0.0001pt; text-align: center; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 24px;\"><b>I.R. Coelho vs State of Tamil Nadu (See PDF document attached)</b></span></font></h4><h4 style=\"margin-bottom: 0.0001pt; text-align: center; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 24px;\"><b>Civil Appeals Nos. 1344-45 of 1976 with WPs (C) Nos. 242 of 1988, 751 of 1990, CAs Nos. 6045-46 of 2002, WP (C) No. 408 of 2003, SLPs (C) Nos. 14182, 14245, 14248-49, 26879, 14946-47, 26880-81, 14949, 26882, 14950, 26883, 14965, 26884, 14993, 15020, 26885, 15022, 15029, 14940 and 26886 of 2004,WPs (C) Nos. 454, 473 and 259 of 1994, 238 of 1995 and 35 of 1996, decided on January 11, 2007</b></span></font></h4><h4 style=\"margin-bottom: 0.0001pt; text-align: center; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 24px;\"><b>Reported in (2007) 2 SCC 1&nbsp;</b></span></font></h4><h4 style=\"margin-bottom: 0.0001pt; text-align: center; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 24px;\"><b>Chief Justice Y.K.Sabharwal, Justice Ashok Bhan, Justice Dr. Arijit Pasayat, Justice B.P.Singh, Justice S.H.Kapadia,Justice C.K.Thakker, Justice P.K.Balasubrahmanyan, Justice Altamas Kabir and Justice D.K.Jain</b></span></font></h4><h4 style=\"margin-bottom: 0.0001pt; text-align: center; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><br></h4>', '8d1385776c0a10edf159d6c831ac1b42.png', '6989dd8f01e6c3e45028ab2e20e5fbbd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2007-01-11', 1, '', '', '2021-02-12 23:36:54', '2021-02-12 23:41:18');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(455, '19N5BGu02Qw75hqKWGDfZAC1B', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transfer of Property Act. Gift. Delivery of possession is not a necessary condition for a valid gift. ', '<h4><font color=\"#9c0000\">Full Judgment&nbsp;</font><br>Renikuntla Rajamma vs K. Sarwanamma<br>Civil Appeal No. 4195 of 2008 decided on July 17, 2014<br>Reported in (2014) 9 SCC 445&nbsp;<br>Justice T.S.Thakur, Justice V. Gopala Gowda and Justice C. Nagappan.&nbsp;<br>Justice T.S. THAKUR, J.— An apparent conflict between two earlier decisions rendered by this Court, one in Naramadaben Maganlal Thakker v. Pranjivandas Maganlal Thakker1 and the other in K. Balakrishnan v. K. Kamalam2 has led to this reference to a larger Bench3 for an authoritative pronouncement as to the true and correct interpretation of Sections 122 and 123 of the Transfer of Property Act, 1882. Before we deal with the precise area in which the two decisions take divergent views, we may briefly set out the factual matrix in which the controversy arises.<br>2. The respondent-plaintiff in this appeal filed OS No. 979 of 1989 for a declaration to the effect that revocation deed dated 5-3-1986 executed by the appellant-defendant purporting to revoke a gift deed earlier executed by her was null and void. The plaintiff’s case as set out in the plaint was that the gift deed executed by the appellant-defendant was valid in the eye of the law and had been accepted by the plaintiff when the defendant donee had reserved to herself during for life, the right to enjoy the benefits arising from the suit property. The purported revocation of the gift in favour of the respondent-plaintiff in terms of the revocation deed was, on that basis, assailed and a declaration about its being invalid and void ab initio prayed for.<br>3. The suit was contested by the appellant-defendant herein on several grounds including the ground that the gift deed executed in favour of the plaintiff was vitiated by fraud, misrepresentation and undue influence. The parties led evidence and went through the trial with the trial court eventually holding that the deed purporting to revoke the gift in favour of the plaintiff was null and void. The trial court found that the defendant had failed to prove that the gift deed set up by the plaintiff was vitiated by fraud or undue influence or that it was a sham or nominal document. The gift, according to the trial court, had been validly made and accepted by the plaintiff, hence, irrevocable in nature. It was also held that since the donor had taken no steps to assail the gift made by her for more than 12 years, the same was voluntary in nature and free from any undue influence, misrepresentation or suspicion. The fact that the donor had reserved the right to enjoy the property during her lifetime did not affect the validity of the deed, opined the trial court.<br>4. In the first appeal preferred against the said judgment and decree, the First Additional District Judge, Warangal affirmed the view taken by the trial court and held that the plaintiff had satisfactorily proved the execution of a valid gift in his favour and that the revocation of a validly made gift deed was legally impermissible. The first appellate court also held that the gift deed was not a sham document, as alleged by the defendant and that its purported cancellation/revocation was totally ineffective. The defendant’s case that she had apprehended grabbing of the property by Sankaraiah forcing her to make a sham gift deed was held not established especially when Sankaraiah had died three years prior to the execution of the revocation deed by the&nbsp; defendant. If the gift deed was executed by the donor to save the property from the covetous eyes of Sankaraiah, as alleged by the defendant, there was no reason why the defendant should have waited for three years after the death of Sankaraiah before revoking the same reasoned the court. The first appellate court also affirmed the finding of the trial court that the donee had accepted the gift made in his favour. The appeal filed by the defendant (the appellant herein) was on those findings dismissed.<br>5. Concurrent findings of facts recorded by the courts below did not deter the appellants from preferring Civil Second Appeal No. 809 of 2003 in which the appellants made an attempt to assail the said findings. The High Court, however, declined to interfere with the judgments and orders impugned before it and dismissed4 the second appeal of the appellant holding that the case set up by the defendant that the gift was vitiated by undue influence or fraud had been thoroughly disproved at the trial. The present appeal is the last ditch attempt by the defendants to assail the findings recorded against them.<br>6. When the special leave petition came up for preliminary hearing before a Division Bench of this Court, the only question which was urged on behalf of the appellant was whether retention of possession of the gifted property for enjoyment by the donor during her lifetime and the right to receive the rents of the property in any way affected the validity of the gift. That a gift deed was indeed executed by the donor in favour of the donee and that the donee had accepted the gift was not challenged and the finding to that effect has not been assailed even before us. So also the challenge to the gift on the ground of fraud, misrepresentation and undue influence, having been repelled by the courts below, the gift stands proved in all material respects. All that was contended on behalf of the appellant was that since the donor had retained to herself the right to use the property and to receive rents during her lifetime, such a reservation or retention rendered the gift invalid. A conditional gift was not envisaged by the provisions of the Transfer of Property Act, argued the learned counsel for the appellant. Inasmuch as the gift deed failed to transfer title, possession and the right to deal with the property in absolute terms in favour of the donee the same was no gift in the eye of the law, contended the learned counsel for the appellant. Reliance in support of that submission was placed by the learned counsel upon the decision of this Court in Naramadaben Maganlal Thakker v. Pranjivandas Maganlal Thakker1.<br>7. On behalf of the respondents it was per contra argued that the validity of the gift having been upheld by the courts below, the only question that remains to be examined was whether a gift which reserved a life interest for the donor could be said to be invalid. That question was, according to the learned counsel, squarely answered in favour of the respondents by the decision of this Court in K. Balakrishnan v. K. Kamalam2.<br>8. Reliance was also placed by the learned counsel upon Bhagwan Prasad v. Harisingh5, Revappa v. Madhava Rao6 and Tirath v. Manmohan Singh7 in support of the submission that transfer of possession was a condition under the Hindu law for a valid gift which rule of Hindu law stood superseded by Section 123 of the Transfer of Property Act.<br>9. Chapter VII of the Transfer of Property Act, 1882 deals with gifts generally and, inter alia, provides for the mode of making gifts. Section 122 of the Act defines “gift” as a transfer of certain existing movable or immovable property made voluntarily and without consideration by one person called the donor to another called the donee and accepted by or on behalf of the donee. In order to constitute a valid gift, acceptance must, according to this provision, be made during the lifetime of the donor and while he is still capable of giving. It stipulates that a gift is void if the donee dies before acceptance.<br>10. Section 123 regulates the mode of making a gift and, inter alia, provides that a gift of immovable property must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. In the case of movable property, transfer either by a registered instrument signed as aforesaid or by delivery is valid under Section 123. Section 123 may at this stage be gainfully extracted:<br>“123. Transfer how effected.—For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.<br>For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.<br>Such delivery may be made in the same way as goods sold may be delivered.”<br>11. Sections 124 to 129 which are the remaining provisions that comprise Chapter VII deal with matters like gift of existing and future property, gift made to several persons of whom one does not accept, suspension and revocation of a gift, and onerous gifts including effect of non-acceptance by the donee of any obligation arising thereunder. These provisions do not concern us for the present. All that is important for the disposal of the case at hand is a careful reading of Section 123 (supra) which leaves no manner of doubt that a gift of immovable property can be made by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. When read with Section 122 of the Act, a gift made by a registered instrument duly signed by or on behalf of the donor and attested by at least two witnesses is valid, if the same is accepted by or on behalf of the donee. That such acceptance must be given during the lifetime of the donor and while he is still capable of giving is evident from a plain reading of Section 122 of the Act. A conjoint reading of Sections 122 and 123 of the Act makes it abundantly clear that “transfer of possession” of the property covered by the registered instrument of the gift duly signed by the donor and attested as required is not a sine qua non for the making of a valid gift under the provisions of the Transfer of Property Act, 1882.<br>12. Judicial pronouncements as to the true and correct interpretation of Section 123 of the TP Act have for a fairly long period held that Section 123 of the Act supersedes the rule of Hindu law if there was any making delivery of possession an essential condition for the completion of a valid gift.<br>13. A Full Bench comprising five Hon’ble Judges of the High Court of Allahabad has in Lallu Singh v. Gur Narain8 referred to several such decisions in which the provisions of Section 123 have been interpreted to be overruling the Hindu law requirement of delivery of possession as a condition for making of a valid gift. This is evident from the following passage from the above decision where the High Court repelled in no uncertain terms the contention that Section 123 of the TP Act merely added one more requirement of law, namely, attestation and registration of a gift deed to what was already enjoined by the Hindu law and that Section 123 did not mean that where there was a registered instrument duly signed and attested, other requirements of the Hindu law stood dispensed with:<br>“7. Dr Katju, on behalf of the appellant, has strongly contended that by Section 123 it was merely intended to add one more requirement of law, namely, that of attestation and registration, to those enjoined by the Hindu law, and that the section did not mean that where there was a registered document duly signed and attested, all the other requirements of the Hindu law were dispensed with. Section 123 has, however, been interpreted by all the High Courts continuously for a very long period in the way first indicated, and there is now a uniform consensus of opinion that the effect of Section 123 is to supersede the rule of Hindu law, if there was any, for making the delivery of possession absolutely essential for the completion of the gift. We may only refer to a few cases for the sake of reference, Dharmodas Das v. Nistarini Dasi9, Balbhadra v. Bhowani10, Alabi Koya v. Mussa Koya11, Madhavrao Moreshvar Pant Amatya v. Kashibai Kom Dattubhai12, Man Bhari v. Naunidh13, Balmakund v. Bhagwan Das14 and Phul Chand v. Lakkhu15. Where the terms of a statute or ordinance are clear, then even a long and uniform course of judicial interpretation of it may be overruled, if it is contrary to the clear meaning of the enactment but where such is not the case, then it is our duty to accept the interpretation so often and so long put upon the&nbsp; statute by the courts, and not to disturb those decisions, vide the remarks of Their Lordships decisions, of the Privy Council in Tricomdas Cooverji Bhoja v. Gopinath Jiu Thakur16. We are, therefore, clearly of opinion that it must now be accepted that the provisions of Section 123 do away with the necessity for the delivery of possession, even if it was required by the strict Hindu law.”<br>14. The logic for the above view in Lallu Singh case8 flowed from the language of Section 129 of the TP Act which as on the date of the decision rendered by the High Court of Allahabad used the words “save as provided by Section 123 of the Act”. Section 129 of the TP Act was, before its amendment in the year 1929, as under:<br>“129. Saving of donations mortis causa and Muhammadan law.—Nothing in this Chapter relates to gifts of movable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law or, save as provided by Section 123, any rule of Hindu or Buddhist law.”<br>A plain reading of the above made it manifest that the “rules of Hindu law” and “Buddhist law” were to remain unaffected by Chapter VII except to the extent such rules were in conflict with Section 123 of the Transfer of Property Act. This clearly implied that Section 123 had an overriding effect on the rules of Hindu law pertaining to gift including the rule that required possession of the property gifted to be given to the donee. The decisions of the High Courts referred to in the passage extracted above from Lallu Singh case8 have consistently taken the view that Section 123 supersedes the rules of Hindu law which may have required delivery of possession as an essential condition for the completion of a gift. The correctness of that statement of law cannot be questioned. The language employed in Section 129 before its amendment was clear enough to give Section 123 an overriding effect vis-à-vis rules of Hindu law.<br>15. Section 129 was amended by Act 20 of 1929 whereby the words “or, save as provided by Section 123, any rule of Hindu or Buddhist law” have been deleted. Section 129 of the TP Act today reads as under:<br>“129. Saving of donations mortis causa and Muhammadan law.—Nothing in this Chapter relates to gifts of movable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law.”<br>The above leaves no doubt that the law today protects only the rules of Muhammadan law from the rigours of Chapter VII relating to gifts. This implies that the provisions of Hindu law and Buddhist law saved under Section 129 (which saving did not extend to saving such rules from the provisions of Section 123 of the TP Act) prior to its amendment are no longer saved from the overriding effect of Chapter VII. The amendment has made the position more explicit by bringing all other rules of Hindu and Buddhist law also under the Chapter VII and removing the protection earlier available&nbsp; to such rules from the operation of Chapter VII. Decisions of the High Court of Mysore in Revappa v. Madhava Rao6 and the High Court of Punjab and Haryana in Tirath v. Manmohan Singh7, in our opinion, correctly take the view that Section 123 supersedes the rules of Hindu law insofar as such rules required delivery of possession to the donee.<br><font color=\"#ce0000\">16. The matter can be viewed from yet another angle. Section 123 of the TP Act is in two parts. The first part deals with gifts of immovable property while the second part deals with gifts of movable property. Insofar as the gifts of immovable property are concerned, Section 123 makes transfer by a registered instrument mandatory. This is evident from the use of word “transfer must be effected” used by Parliament insofar as immovable property is concerned. In contradiction to that requirement the second part of Section 123 dealing with gifts of movable property, simply requires that gift of movable property may be effected either by a registered instrument signed as aforesaid or “by delivery”. The difference in the two provisions lies in the fact that insofar as the transfer of movable property by way of gift is concerned the same can be effected by a registered instrument or by delivery. Such transfer in the case of immovable property no doubt requires a registered instrument but the provision does not make delivery of possession of the immovable property gifted as an additional requirement for the gift to be valid and effective. If the intention of the legislature was to make delivery of possession of the property gifted also as a condition precedent for a valid gift, the provision could and indeed would have specifically said so. Absence of any such requirement can only lead us to the conclusion that delivery of possession is not an essential prerequisite for the making of a valid gift in the case of immovable property.</font><br>17. That brings us to the decisions of this Court which have led to this reference. In K. Balakrishnan case2 the donor executed a gift deed of a specified share of the property inherited by her from her maternal grandfather in favour of her minor son who was the appellant donee before the Court and her four year old daughter. The property gifted included a school building. The gift deed stipulated that the responsibility to sign in regard to the said school and the right to income would be with the donor during her lifetime and thereafter would be vested in the donee. After the execution of the gift deed the donor cancelled the same and made a will bequeathing the property in favour of her daughter whereupon the appellant donee filed a suit for declaration of his title to the suit property on the basis of the gift and a further declaration for annulment of the cancellation deed and the will executed by the donor. The trial court dismissed the suit while the first appellate court decreed the same. The High Court restored the view taken by the trial court and held that when the donor had reserved to herself the right to sign the papers with respect to management of the school and the right to take usufruct from the property where the school was situated, no property was transferred under the deed. In appeal before this Court, the view taken by&nbsp; the High Court was reversed and that taken by the first appellate court restored. This Court held: (K. Balakrishnan case2, SCC p. 586, paras 10-11)<br>&nbsp;“10. We have critically examined the contents of the gift deed. To us, it appears that the donor had very clearly transferred to the donees ownership and title in respect of her 1/8th share in properties. It was open to the donor to transfer by gift title and ownership in the property and at the same time reserve its possession and enjoyment to herself during her lifetime. There is no prohibition in law that ownership in a property cannot be gifted without its possession and right of enjoyment. Under Section 6 of the Transfer of Property Act ‘property of any kind may be transferred’ except those mentioned in clauses (a) to (i). Section 6 in relevant part reads thus:<br>‘6. What may be transferred.—Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force.<br>(a)<span style=\"white-space:pre\">	</span>*<span style=\"white-space:pre\">	</span>*<span style=\"white-space:pre\">	</span>*<br>(b) A mere right to re-entry for breach of a condition subsequent cannot be transferred to any one except the owner of the property affected thereby.<br>(c)<span style=\"white-space:pre\">	</span>*<span style=\"white-space:pre\">	</span>*<span style=\"white-space:pre\">	</span>*<br>(d) An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.<br>(e) A mere right to sue cannot be transferred.’<br>11. Clause (d) of Section 6 is not attracted on the terms of the gift deed herein because it was not a property, the enjoyment of which was restricted to the owner personally. She was the absolute owner of the property gifted and it was not restricted in its enjoyment to herself. She had inherited it from her maternal father as a full owner. The High Court was, therefore, apparently wrong in coming to the conclusion that the gift deed was ineffectual merely because the donor had reserved to herself the possession and enjoyment of the property gifted.”<br>18. We are in respectful agreement with the statement of law contained in the above passage in K. Balakrishnan case2. There is indeed no provision in law that ownership in property cannot be gifted without transfer of possession of such property. As noticed earlier, Section 123 does not make the delivery of possession of the gifted property essential for validity of a gift. It is true that the attention of this Court does not appear to have been drawn to the earlier decision rendered in Naramadaben Maganlal Thakker1 where this Court had on a reading of the recital of the gift deed and the cancellation deed held that the gift was not complete. This Court had in that case found that the donee had not accepted the gift thereby making the gift incomplete. This Court further held that the donor cancelled the gift within a month of the gift and subsequently executed a will in favour of the appellant:&nbsp; on a proper construction of the deed and the deed cancelling the same this Court held that the gift in favour of the donee was conditional and that there was no acceptance of the same by the donee. The gift deed conferred a limited right upon the donee and was to become operative after the death of the donee. This is evident from the following passage from the said judgment: (Naramadaben Maganlal Thakker case1, SCC p. 258, para 7)<br>“7. It would thus be clear that the execution of a registered gift deed, acceptance of the gift and delivery of the property, together make the gift complete. Thereafter, the donor is divested of his title and the donee becomes the absolute owner of the property. The question is whether the gift in question had become complete under Section 123 of the TP Act? It is seen from the recitals of the gift deed that Motilal Gopalji gifted the property to the respondent. In other words, it was a conditional gift. There is no recital of acceptance nor is there any evidence in proof of acceptance. Similarly, he had specifically stated that the property would remain in his possession till he was alive. Thereafter, the gifted property would become his property and he was entitled to collect mesne profits in respect of the existing rooms throughout his life. The gift deed conferred only limited right upon the respondent donee. The gift was to become operative after the death of the donor and he was to be entitled to have the right to transfer the property absolutely by way of gift or he would be entitled to collect the mesne profits. It would thus be seen that the donor had executed a conditional gift deed and retained the possession and enjoyment of the property during his lifetime.”<br>19. The above decision in Maganlal Thakker case1 clearly rests on the facts of that case. If the gift was conditional and there was no acceptance of the donee it could not operate as a gift. Absolute transfer of ownership in the gifted property in favour of the donee was absent in that case which led this Court to hold that the gift was conditional and had to become operative only after the death of the donee. The judgment is in that view clearly distinguishable and cannot be read to be an authority for the proposition that delivery of possession is an essential requirement for making a valid gift.<br>20. In the case at hand as already noticed by us, the execution of registered gift deed and its attestation by two witnesses is not in dispute. It has also been concurrently held by all the three courts below that the donee had accepted the gift. The recitals in the gift deed also prove transfer of absolute title in the gifted property from the donor to the donee. What is retained is only the right to use the property during the lifetime of the donor which does not in any way affect the transfer of ownership in favour of the donee by the donor.<br>21. The High Court was in that view perfectly justified in refusing to interfere with the decree passed in favour of the donee. This appeal accordingly fails and is hereby dismissed but in the circumstances without any order as to costs.<br>Cases referred&nbsp;<br>1<span style=\"white-space:pre\">	</span>(1997) 2 SCC 255<br>2<span style=\"white-space:pre\">	</span>(2004) 1 SCC 581<br>3<span style=\"white-space:pre\">	</span>Renikuntla Rajamma v. K. Sarwanamma, (2014) 9 SCC 456<br>4<span style=\"white-space:pre\">	</span>R. Rajamma v. K. Sarwanamma, Second Appeal No. 809 of 2003, order dated 9-3-2006 (AP)<br>5<span style=\"white-space:pre\">	</span>AIR 1925 Nag 199<br>6<span style=\"white-space:pre\">	</span>AIR 1960 Mys 97<br>7<span style=\"white-space:pre\">	</span>AIR 1981 P&amp;H 174<br>8<span style=\"white-space:pre\">	</span>AIR 1922 All 467<br>9<span style=\"white-space:pre\">	</span>ILR (1887) 14 Cal 446<br>10<span style=\"white-space:pre\">	</span>ILR (1907) 34 Cal 853<br>11<span style=\"white-space:pre\">	</span>ILR (1901) 24 Mad 513<br>12<span style=\"white-space:pre\">	</span>ILR (1910) 34 Bom 287<br>13<span style=\"white-space:pre\">	</span>ILR (1882) 4 All 40<br>14<span style=\"white-space:pre\">	</span>ILR (1894) 16 All 185<br>15<span style=\"white-space:pre\">	</span>ILR (1903) 25 All 358<br>16<span style=\"white-space:pre\">	</span>(1916-17) 44 IA 65 : (1917) 5 LW 654 : AIR 1916 PC 182<br><br></h4><p><br></p>', 'e526acb69106385c364086df411e6e64.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '0004-07-17', 1, '', '', '2021-02-13 01:44:47', '2021-02-13 01:46:04');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(456, 'BxpO09eFIoYVtWl8JK65Afusj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Registration Act. Notarised and unregistered power of attorney can be used to act as executant and to present the sale deed for registration on behalf of the owner. Supreme Court. ', '<h4><span style=\"background-color: rgb(255, 255, 0);\">NOTE: Suraj Lamp &amp; Industries (P) vs State Of Haryana dealt with issue of \"selling\" the property on the basis of unregisetered power of attorney. However, this judgment is on a different issue of \'executing\'&nbsp;<br></span></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Full Judgment&nbsp;</span><br></h4><h4>Rajni Tandon v. Dulal Ranjan Ghosh Dastidar&nbsp;<br>Civil Appeal No. 4671 of 2004, decided on July 29, 2009<br>Justice Dr. M.K. Sharma and Dr. B.S. Chauhan&nbsp;<br>Reported in (2009) 14 SCC 782&nbsp;<br>DR. M.K. SHARMA, J.— The present civil appeal raises questions relating to interpretation of Sections 32 and 33 of the Registration Act, 1908 (hereinafter referred to as “the Act”). The dispute pertains to a flat situated on the ground floor of a building commonly known as “Nilachal” at Tollygunge, Calcutta (hereinafter referred to as “the said premises”).<br>2. The appellant by virtue of a registered deed of conveyance dated 28-2-1990 purchased the said premises from one Shri Nandlal Tantia (also referred to as Shri N.L. Tantia), karta of M/s R.L. Tantia &amp; Sons (HUF). The said deed of conveyance was executed by the constituted attorney of Shri N.L. Tantia, Shri Indra Kumar Halani, on the basis of a power of attorney.<br>3. It is pertinent to mention herein that the said premises were purchased by Shri Nandlal Tantia in his capacity as a karta of M/s R.L. Tantia &amp; Sons (HUF) in August 1978. Mrs Ava Rani Ghosh Dastidar (predecessor-in-interest of Respondent 1 herein) was allowed to stay free of charge in the said premises from October 1978 as a personal gesture of Shri Nandlal Tantia as a licensee only. Shri N.L. Tantia, karta of M/s R.L. Tantia &amp; Sons intimated the Society about their ownership in the said premises and asked them to send all future correspondence and maintenance bills in their name. They also informed the Society that Mrs Ava Rani Ghosh Dastidar was temporarily staying in the said premises as a licensee.<br>4. It is the case of the appellant that all records/documents, conveyance deed, corporation records, maintenance bills of “Nilachal Housing Society” in which the said premises were located, resolution of “Nilachal Housing Society” under the West Bengal Apartment Owners Act giving the detailed list of flat-owners, show N.L. Tantia/R.L. Tantia &amp; Sons as the owner of the said premises.<br>5. Mrs Ava Rani Ghosh Dastidar served a notice in the year 1982 on the Society as to why maintenance bills, etc. were not made out in her name. Mrs Ava Rani Ghosh Dastidar thereafter filed Civil Suit No. 322 of 1982 against the Society asking them to include her name as the owner and send all correspondence, maintenance bills, etc. to her. The President and Secretary of the Housing Society filed a reply in this suit stating that Mrs Ava Rani Ghosh Dastidar could not be recognised as an owner in the absence of any document to prove her ownership. She was asked to submit better documents proving her ownership.<br>6. M/s R.L. Tantia &amp; Sons (HUF) served a notice dated 20-4-1983 to Mrs Ava Rani Ghosh Dastidar revoking the licence granted and asking for vacant possession of the flat. When Smt Ava Rani Ghosh Dastidar refused to vacate the flat, Mr Nandlal Tantia filed Suit No. 174 of 1983 for eviction against her. The appellant herein after coming to know that a suit for eviction filed by her predecessor-in-interest was pending moved an application for impleadment as a party. This application for impleadment filed by the appellant was rejected. Title Suit No. 174 of 1983 filed by the erstwhile owner Mr Nandlal Tantia was dismissed on 29-1-1991 for default due to the fact that Shri N.L.&nbsp; Tantia having sold the property to the appellant was not interested in pursuing the matter.<br>7. The appellant after being refused to be made a party in suit for eviction filed a fresh suit in May 1990 for eviction, possession and damages for unauthorised occupation of the property against the respondents. This suit was numbered as Title Suit No. 24 of 1991.<br>8. Respondent 2 alone contested the suit. The said defendant contended that Nandlal Tantia was not the owner of the suit property and he had no right, title and interest therein and as such the appellant did not acquire any right, title and interest in the suit premises by virtue of her purchase of the same by a registered deed of conveyance dated 28-2-1990. The said respondent further made out a case for acquisition of title by adverse possession upon contention that the said defendant has been occupying the suit premises along with his mother since 11-9-1978 as of right and adversely against the rightful owner and after the death of his mother in the year 1983 he is in possession of the same adversely against the interest of any other person.<br>9. Respondent 2 also urged that one Mr Indra Kumar Halani executed the said sale deed on behalf of Nandlal Tantia as his constituted attorney in favour of the appellant and presented the same for registration. It was therefore argued that registration of the sale deed was hit by the provisions of Section 33(1)(a) of the Act as the power of attorney in favour of Indra Kumar Halani was not executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the said Nandlal Tantia resided.<br>10. The trial court recorded a finding that the power of attorney under which the sale/conveyance deed was executed was not registered and the same ought to have been registered as Mr Indra Kumar Halani executed the said sale deed on behalf of Nandlal Tantia as his constituted attorney and presented the same for registration. Hence, it was held to be in violation of the provisions of Sections 32 and 33 of the Act. Consequently, it was also held that the title in the said premises had not passed in favour of the appellant. The trial court accordingly dismissed the suit as the appellant-plaintiff did not acquire any right, title and interest by virtue of her purchase by the said deed of conveyance dated 28-2-1990.<br>11. In the appeal filed by the appellant against the said decree of dismissal of the suit, the first appellate court held that the respondent failed to establish his case for acquisition of title in the suit premises by adverse possession. On the question of presentation of the said deed of conveyance for registration by Indra Kumar Halani, the court of appeal held that the same was properly registered as Indra Kumar Halani being the executant of the same had presented the same for registration and as such the provisions of Section 33(1)(a) of the Act were not applicable in the facts and circumstances of this case and consequently decreed the suit in favour of the appellant. It may be mentioned herein that in the second appeal before the High Court the respondent did not assail the finding of the first appellate court that they did not acquire right, title and interest in the suit premises by way of adverse possession. Such findings therefore became final.<br>12. During the course of hearing, two substantial questions of law were raised in the following manner:<br>“(a) Whether the finding of the court as regards the validity of the sale deed being Exhibit 1 executed and presented by an agent — Indra Kumar Halani on behalf of the principal on the strength of a power of attorney (Exhibit 10) is sustainable in law, when admittedly Exhibit 10 was not registered nor an authenticated document in the manner prescribed in Section 33 of the Registration Act.<br>(b) Whether the findings of the appellate court as to the validity of the registration of the document (Ext. 1) done in good faith and on active participation of the registration by drawing inference from Section 87 of the Registration Act is liable to be sustained in law when the question at issue is not the defects in the procedure of the Registrar, but the lack of jurisdiction and more so, when the findings recorded by the trial court in this regard were not reversed.”<br>The High Court, after hearing arguments of the counsel appearing for the parties, answered Question (a) as also Question (b) in favour of the respondent-defendants.<br>13. So far as Question (a) is concerned, it was held that since the power of attorney (Exhibit 10) is, admittedly, not a registered document and was simply notarised by a notary, therefore Indra Kumar Halani, was not authorised to execute and present the sale deed (Exhibit 1) before the Sub-Registrar for registration. It was, therefore, held by the High Court that no right and title had passed to the plaintiff on the basis of the aforesaid sale deed. Accordingly, Issue 1 was decided in favour of the respondent-defendants.<br>14. So far as Question (b) is concerned, upon a conjoint reading of Section 32, Section 33(1)(a) and Section 34 of the Act, the High Court took the view that it was difficult to conclude that Indra Kumar Halani became the executant by himself on the basis of the power of attorney which was neither executed nor authenticated in the manner provided under Section 33(1)(a) of the Act so as to enable him to present the sale deed for registration in compliance with the provisions of Section 32(a) of the Act. The second appeal was accordingly allowed and the suit filed by the appellant-plaintiff was dismissed vide its judgment and order dated 20-8-2003.<br>15. Being aggrieved by the aforesaid decision, the appellant-plaintiff preferred the present appeal. Leave was granted by this Court and Respondents 2(a) and 2(b) entered appearance. The preparation of the paper books was dispensed with and it was directed that the case be heard on the basis of the SLP paper books. On an application being filed by the appellant-plaintiff herein, it was ordered that the appeal would be listed during the summer vacation, 2009 before this Court. Consequently, the appeal was listed for hearing before us on 19-5-2009.<br>16. Learned counsel for the appellant-plaintiff argued the case at length before us. However, none appeared for the respondent-defendants when the matter was heard. It was submitted by the learned counsel appearing for the appellant-plaintiff that in this case what is applicable is Section 32(a) of the Act and the provisions of Section 33(1)(c) of the Act would have no application. It was further submitted by him that it is not necessary that a power of attorney to execute a document is capable of being recognised only when it is mandatorily registered and authenticated under Section 33(1)(c) of the Act.<br>17. It was next submitted by counsel for the appellant-plaintiff that pursuant to the power of attorney executed by Nandlal Tantia in favour of Indra Kumar Halani authorising him (Indra Kumar Halani) to execute the sale deed, he duly executed and presented the said sale deed for registration before the Sub-Registrar and the said registration was done by the Sub-Registrar. In support of his submission he relied upon decisions rendered by various High Courts viz.&nbsp;<i>Motilal v. Ganga Bai1, Gopeswar Pyne v. Hem Chandra Bose2, Aisha Bibi v. Chhajju Mal3, Sultan Ahmad Khan v. Sirajul Haque4, Ram Gopal v. L. Mohan Lal5 and Goswami Malti Vahuji Maharaj v. Purushottam Lal Poddar6.&nbsp;</i>These decisions support the stand taken by the appellant-plaintiff before us.<br>18. However, our attention was also drawn to the decisions in which the courts had taken a contrary view. Reference in this regard may be made to the decisions viz. <i>D. Sardar Singh v. Seth Pissumal Harbhagwandas Bankers7 and Abdus Samad v. Majitan Bibi8.</i></h4><h4><font color=\"#9c0000\">19. In view of the aforesaid situation, the issue that falls for our consideration is whether a person who executes a document under the terms of the power of attorney, is, insofar as the registration office is concerned, the actual executant of the document and is entitled under Section 32(a) to present it for registration and get it registered.</font><br></h4><h4>20. Part VI of the Act deals with “presentation of documents for registration”. Sections 32 and 33 of the Act which are in Part VI deal with “persons to present documents for registration” and “power of attorney recognisable for purposes of Section 32” respectively. Sections 32 and 33 of the Act are referred to hereunder:<br></h4><h4><i>“32. Persons to present documents for registration.—Except in the cases mentioned in Sections 31, 88 and 89, every document to be registered&nbsp; under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office,—</i></h4><h4><i>(a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or</i></h4><h4><i>(b) by the representative or assign of such person, or</i></h4><h4><i>(c) by the agent of such person, representative or assign, duly authorised by power of attorney executed and authenticated in manner hereinafter mentioned.”</i></h4><h4><i>“33. Power of attorney recognisable for purposes of Section 32.—(1) For the purposes of Section 32, the following powers of attorney shall alone be recognised, namely—</i></h4><h4><i>(a) if the principal at the time of executing the power of attorney resides in any part of India in which this Act is for the time being in force, a power of attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides;</i></h4><h4><i>(b) if the principal at the time aforesaid resides in any part of India in which this Act is not in force, a power of attorney executed before and authenticated by any Magistrate;</i></h4><h4><i>(c) if the principal at the time aforesaid does not reside in India, a power of attorney executed before and authenticated by a notary public, or any court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government:</i></h4><h4><i>Provided that the following persons shall not be required to attend at any registration office or court for the purpose of executing any such power of attorney as is mentioned in clauses (a) and (b) of this section, namely—</i></h4><h4><i>(i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend;</i></h4><h4><i>(ii) persons who are in jail under civil or criminal process; and</i></h4><h4><i>(iii) persons exempt by law from personal appearance in the court.</i></h4><h4><i>&nbsp;(2) In the case of every such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power of attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or court aforesaid.</i></h4><h4><i>(3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination.</i></h4><h4><i>(4) Any power of attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or court hereinbefore mentioned in that behalf.</i></h4><h4>21. Section 32 deals with persons who are eligible to present documents for registration before the proper registration office. Section 32 specifies&nbsp; three categories of persons who can present documents for registration. The use of the word “or” between the clauses of Section 32 demonstrates that the legislature intended the said clauses to be read disjunctively and not conjunctively. It is settled law that the use of the word “or” is used to signify the disjunctive nature of a provision. In this regard reference may be made to the decision of this Court in S<span style=\"font-style: italic;\">tate of Orissa v. State of A.P.9</span><br>22. Clause (a) of Section 32 specifies that a document can be presented for registration by:<br>(i) by the person executing the document;<br>(ii) any person claiming under the document presented for registration; and<br>(iii) in the case the said document is a copy of a decree or order, any person claiming under the decree or order.<br>Clauses (b) and (c) deal with cases where the document is presented not by any person mentioned in (i), (ii) and (iii) above but by their agent, representative or assign. This is so because the use of the words “such person” in clauses (b) and (c) can be understood to mean only persons as referred to in (i), (ii) and (iii) above.<br>23. It may also be mentioned herein that the scope of clauses (b) and (c) in Section 32 may to an extent overlap one another. However, we do not propose to deal with the same as it is not relevant for determination of the issue before us. It is suffice to say that insofar as clause (c) of Section 32 is concerned the agents, representatives or assigns of the persons referred to in (i), (ii) and (iii) above can present the said document for registration only if they are duly authorised by the power of attorney executed and authenticated in the manner hereinafter mentioned.<br>24. The words “executed and authenticated in manner hereinafter mentioned” in Section 32(c) would mean the procedure specified in Section 33. This is clear from the opening words of Section 33 which reads “for the purposes of Section 32, the following power of attorney shall alone be recognised”. Section 32 refers to documents presented for registration by a holder of “power of attorney” in clause (c) and it therefore follows that the procedure specified under Section 33 would be attracted where a document is presented by a person holding “powers of attorney” of the persons mentioned in clause (a) of Section 32.<br>25. The aforesaid position makes it explicitly clear that Section 32 of the Act requires the documents sought to be registered, to be presented, inter alia by the person executing it. In other words, the said expression requires presence of the actual person executing the document. The basic principle underlying this provision of the Act is to get before the Sub-Registrar the actual executant who, in fact, executes the document in question. In fact, the ratio of the decision in Ram Gopal5 has laid down a similar proposition on the conjoint reading of Section 32 and Section 33 of the Act and after referring to all the judgments noted hereinbefore. Same view has been expressed earlier by the Bombay High Court in <span style=\"font-style: italic;\">Ratilal Nathubhai v. Rasiklal Maganlal10.</span><br>26. It is important to bear in mind that one of the categories of persons who are eligible to present documents before the registration office in terms of Section 32 of the Act is the “person executing” the document. The expression “person executing” used in Section 32 of the Act, can only refer to the person who actually signs or marks the document in token of execution, whether for himself or on behalf of some other person. <font color=\"#9c0000\">Thus, “person executing” as used in Section 32(a) of the Act signifies the person actually executing the document and includes a principal who executes by means of an agent. Where a person holds a power of attorney which authorises him to execute a document as agent for someone else, and he executes a document under the terms of the power of attorney, he is, so far as the registration office is concerned, the actual executant of the document and is entitled under Section 32(a) to present it for registration and get it registered.</font><br>27. In view of the aforesaid legal position, we are of the considered view that the law laid down by the Andhra Pradesh High Court in D. Sardar Singh v. Seth Pissumal Harbhagwandas Bankers7 and the decision of the Calcutta High Court in Abdus Samad v. Majitan Bibi8 with regard to the interpretation of Sections 32 and 33 of the Act is not the correct legal position.<br>28. In the facts of the present case, it is quite clear that Indra Kumar Halani, was given the full authority by Nandlal Tantia under the power of attorney to transfer the suit property and to execute the necessary document. It is an accepted position that the said document had been executed by Indra Kumar Halani in the name and on behalf of Nandlal Tantia thereof. Therefore, for the purposes of registration office under Section 32(a) of the Act Indra Kumar Halani is clearly the “person executing” the document. Therefore, it follows that the said sale deed which was executed and authenticated by Indra Kumar Halani could be presented for registration by him. We are of the considered view that Indra Kumar Halani acted in the aforesaid manner mandated under Section 32(a) of the Act.<br><font color=\"#9c0000\">29. The object of registration is designed to guard against fraud by obtaining a contemporaneous publication and an unimpeachable record of each document. The instant case is one where no allegation of fraud has been raised. In view thereof the duty cast on the registering officer under Section 32 of the Act was only to satisfy himself that the document was executed by the person by whom it purports to have been signed. The Registrar upon being so satisfied and upon being presented with a document to be registered had to proceed with the registration of the same.</font><br>30. The High Court held that since the power of attorney was not a registered document, Indra Kumar Halani, was not authorised to execute and&nbsp; present the sale deed before the Sub-Registrar for registration. It was, therefore, held by the High Court that no right and title had passed to the plaintiff on the basis of the aforesaid sale deed.<br>31. The High Court also held that upon a conjoint reading of Section 32, Section 33(1)(a) and Section 34 of the Act, it was difficult to conclude that Indra Kumar Halani became the executant by himself on the basis of the power of attorney which was neither executed nor authenticated in the manner provided under Section 33(1)(a) of the Act so as to enable him to present the sale deed for registration in compliance with the provisions of Section 32(a) of the Act.<br></h4><h4><font color=\"#9c0000\">32. We do not agree with the said findings of the High Court.</font></h4><h4><font color=\"#9c0000\">33. Where a deed is executed by an agent for a principal and the same agent signs, appears and presents the deed or admits execution before the registering officer, that is not a case of presentation under Section 32(c) of the Act. As mentioned earlier the provisions of Section 33 will come into play only in cases where presentation is in terms of Section 32(c) of the Act. In other words, only in cases where the person(s) signing the document cannot present the document before the registering officer and gives a power of attorney to another to present the document that the provisions of Section 33 get attracted. It is only in such a case, that the said power of attorney has to be necessarily executed and authenticated in the manner provided under Section 33(1)(a) of the Act.</font></h4><h4>34. In the instant case, Indra Kumar Halani executed the document on behalf of Shri N.L. Tantia under the terms of this power of attorney. He then presented it for registration at the registration office and it was registered. The plea taken by the respondents that in order to enable him to present the document it was necessary that he should hold a power of attorney authenticated before the Sub-Registrar under the provisions of Section 33 is thus not supported by the language of Section 32. <font color=\"#9c0000\">The provisions of Section 33 therefore only apply where the person presenting a document is the general attorney of the person executing it, and not where it is presented for registration by the actual executant, even though he may have executed it as agent for someone else. In this case, the presentation is by the actual executant himself and is hence entitled under Section 32(a) to present it for registration and to get it registered.</font><br>35. Accordingly, we allow the present appeal and set aside the judgment and order passed by the High Court and restore the judgment and decree passed by the first appellate court whereby and whereunder a decree for eviction of the respondent-defendants was passed. No order as to the costs.<br>Judgments referred to:<br>1<span style=\"white-space:pre\">	</span>AIR 1915 Nag 18<br>2<span style=\"white-space:pre\">	</span>AIR 1920 Cal 316<br>3<span style=\"white-space:pre\">	</span>AIR 1924 All 148<br>4<span style=\"white-space:pre\">	</span>AIR 1938 All 170<br>5<span style=\"white-space:pre\">	</span>AIR 1960 Punj 226<br>6<span style=\"white-space:pre\">	</span>AIR 1984 Cal 297<br>7<span style=\"white-space:pre\">	</span>AIR 1958 AP 107<br>8<span style=\"white-space:pre\">	</span>AIR 1961 Cal 540<br>9<span style=\"white-space:pre\">	</span>(2006) 9 SCC 591<br>10<span style=\"white-space:pre\">	</span>AIR 1950 Bom 326<br></h4><p><br></p>', '27c967cb0a8f695b898e2f8387410d4d.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2009-07-29', 1, '', '', '2021-02-13 05:45:04', '2021-02-23 07:27:37');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(457, 'TIpUvog5SqJLLaIrCPHl2gq3S', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Medical Negligence. A person who does not have knowledge of a particular system of medicine but practises in that system is a quack. It is negligence per se.  Supreme Court. ', '<h4>Poonam Verma v. Ashwin Patel, <br>Civil Appeal No. 8856 of 1994, decided on May 10, 1996 </h4><h4>Reported in (1996) 4 SCC 332,</h4><h4>Justice Kuldip Singh and Justice S. Saghir Ahmed. <br>S. SAGHIR AHMAD, J.— “Similia Similibus Curantur” (Like Cures Like) is the basis of a system of therapeutics known popularly as Homoeopathy. It is based on the premise that the most effective way to treat a disease is to use drugs or other agents that produce the symptoms of the disease in healthy persons. This theory had its origin in or about 460 B.C. when the Greek physician, Hippocrates, noted the similarity between the effect of some drugs and the symptoms of the diseases they seemed to relieve. It was, however, in the late 18th century that this theory was tested and popularised by the German physician, Christian Friedrich Samuel Hahnemann as a new form of therapeutic treatment after six years’ test study of scores of drugs on himself and others. Ultimately, in 1796, he published his findings in a leading medical journal under the caption On a New Principle for Ascertaining the Curative Power of Drugs which set in motion a process of continued research in all directions including its pharmacology with the result that Homoeopathy is taught today as a positive science in various medical colleges all over the country.<br>2. Respondent 1 pursued a four years’ course in Homoeopathic Medicine and Surgery and after being declared successful in the examination conducted by the Homoeopathic Medical College, Anand, Gujarat, he was awarded a Diploma in Homoeopathic Medicine and Surgery on the basis of which he was registered as a medical practitioner in 1983. Initially, he joined a private nursing home at Bombay where he worked, as he claims, as Chief Medical Officer from 1983 till he opened his own private clinic in 1989 and took up private practice.<br>3. Pramod Verma, husband of the appellant, was Sales Manager in M/s Encore Marketing P. Ltd. where the last salary drawn by him is said to be Rs 5700 out of which he maintained his family comprising of himself, his wife and two children besides supporting the aged parents.<br>4. On 4-7-1992, Pramod Verma, who complained of fever was examined at his residence by Respondent 1 (Dr Ashwin Patel) who kept him on Allopathic drugs for viral fever up to 6-7-1992 and, thereafter, for typhoid fever. When condition of Pramod Verma deteriorated, he was shifted to Sanjeevani Maternity and General Nursing Home of Dr Rajeev Warty (Respondent 2) as an indoor patient on 12-7-1992. This was done on the advice of Respondent 1. Verma received treatment there till the evening of 14-7-1992 when he was transferred to the Hinduja Hospital in an unconscious state where, after about four and a half hours of admission, he died.<br> 5. The appellant, thereafter, filed (on 14-8-1992) Original Petition No. 184 of 1992 before the National Consumer Disputes Redressal Commission (for short, ‘Commission’), at New Delhi praying for compensation and damages being awarded to her by Respondents 1 and 2 for their negligence and carelessness in treating her husband (Pramod Verma) but the Commission by its judgment and order dated 8-11-1994 dismissed the petition. It is this judgment which is challenged in this appeal.<br>6. It appears that in the claim lodged before the Commission, it was set out by the appellant that Respondent 1 was negligent in administering strong antibiotics to Pramod Verma initially for the treatment of viral fever and subsequently for typhoid fever without confirming the diagnosis by blood test or urine examination. It was also set out that Respondent 1 was not qualified or even authorised to practise in the Allopathic system of medicine and prescribe Allopathic drugs and, therefore, his lack of expertise in the Allopathic system of medicine was responsible for deficiency in the treatment administered by him.<br>7. Negligence imputed to Respondent 2 is that Pramod Verma, immediately on his admission in the Nursing Home, was put on intravenous Glucose (Dextrose) drip without ascertaining the level of blood sugar by a simple blood test. This was said to be primarily responsible for constant and steady deterioration of Pramod Verma’s condition, but Respondent 2 continued to assure the appellant that Pramod Verma would soon recover and there was no need to shift him to a better equipped hospital. It was, however, in the evening of 14-7-1992, that Pramod Verma who was already in an unconscious state, was shifted to Hinduja Hospital on the advice of Respondent 2.<br>8. Both the respondents filed separate counter-affidavits in which they denied the allegation of negligence made against them and contended that they had taken all due and reasonable care to cure Mr Verma of the ailment from which he suffered. They contended that there was no deficiency in service nor was there any negligence on their part.<br>9. The exact pleas raised in defence by Respondent 1 which have been set out by the Commission in its judgment under appeal, are given below:<br>“It has been submitted by opposite party No. 1 that he has undergone an integrated course of study in both the Homoeopathic and Allopathic systems of medicine and was awarded the DHMS Diploma after his having passed the final examination at the end of a four years’ course conducted by the Homoeopathic Medical College, Anand, Gujarat. Exhibit Annexure R-1 is a copy of the said diploma and it shows that the said diploma had been awarded after the candidate had been examined inter alia in the following subjects: Anatomy, Physiology, Pathology, Forensic Medicine, Surgery, Practice of Medicine, Hygiene, Midwifery and Gynaecology. Opposite party No. 1 has stated in his counter-affidavit that during the final year of his study in the Homoeopathic Medical College, Anand he had been given training in the Anand Municipal Hospital and also another private nursing home in Anand for a period of six months. Opposite party No. 1 was thereafter  enrolled as a registered medical practitioner in the States of Gujarat and Maharashtra with Registration Numbers G-649 (Gujarat) and 10197 (Maharashtra). Opposite party No. 1 has denied the allegations of the complainant that he is not qualified, competent and authorised to practise the Allopathic system of medicine. He has submitted that he used reasonable degree of skill and knowledge in treating the complainant’s husband and had taken reasonable degree of care of the patient while he was under his treatment.<br>It is further submitted by opposite party No. 1 in his counter that after the completion of his studies and obtaining the diploma, he had worked as Chief Medical Officer at a well-known Allopathic clinic by name, Patel Surgical and Nursing Home, Andheri, Bombay from 1983 to 1990 and he had gained very good experience in examining, diagnosing and treating the patients with complaints of various types of sickness and in prescribing necessary Allopathic medicines. It is also submitted by opposite party No. 1 that late Mr Pramod Verma and his family had been taking Allopathic treatment from him for the sickness of the members of the family ever since they moved into the colony about one and a half years prior to July 1992 and he had been functioning as their family physician.<br>According to opposite party No. 1, Mrs Poonam Verma came to his clinic on the evening of 4-7-1992 and requested him to see her husband at her home. Accordingly, opposite party No. 1 made a house visit and examined Mr Pramod Verma in the evening of 4-7-1992 and on such examination it was found that Shri Verma had fever. Thereupon he prescribed:<br>(1) Cap. Ampicillin (500 mg — four times a day)<br>(2) Tab. Paracetamol (500 mg — 3 times a day)<br>(3) Tab. Diavol (2 times a day) and<br>(4) Tab. B-Complex (2 times a day)<br>Opposite party No. 1 has stated that he gave the above treatment as he felt it may be a case of viral fever which was then very much prevalent in the locality.<br>Thereafter on 6-7-1992, Mrs Verma called opposite party No. 1 again to see her husband and hence he went to examine Mr Verma at his house on that day in the evening. It was found that Shri Verma had mild fever and since the fever had continued for the third day, opposite party No. 1 states that he advised Mr Verma to undergo pathological tests, namely, blood test and urine examination etc. Since enteric fever was prevalent at that time in the locality in question (Asha Nagar) and neighbouring localities of Bombay, opposite party No. 1 prescribed Tab. Quintor (500 mg 2 times a day for 2 days) in the place of Cap. Ampicillin. It is stated in the counter-affidavit that Quintor is a broad-spectrum antibiotic which is active against the broad spectrum of gram negative and gram positive bacteria including Enterbacter. According to opposite party No. 1, Mr Verma thereafter came to his  clinic on 8-7-1992 and on examining him, opposite party No. 1 found that he was not having any fever. Since there was no other complaint also, opposite party No. 1 advised Mr Verma to continue the same treatment for another two days, i.e. up to 10-7-1992. It is further averred in the counter-affidavit that on 10-7-1992 Mr Pramod Verma again came to the clinic of opposite party No. 1, he had no fever but complained of backache. Thereupon opposite party No. 1 advised him to continue the same treatment as before and added a painkiller Tab. Ibuflamor MX 2 times a day for two days. He also gave him an injection Diclonac (3 cc.1 I/M) (intra-muscular) to the patient. Subsequently, at about 10.30 p.m. on the night of 11-7-1992, the complainant requested opposite party No. 1 to visit her residence to see her husband. Opposite party No. 1 thereupon went there and examined late Mr Verma. It was found that he had again developed mild fever and was complaining of pain in the shoulder. Opposite party No. 1 then prescribed for him Tab. Vovaron 1 twice daily and Tab. Neopan plus Cap. Becosules 1 twice daily in addition to Quintor and Ibuflamor tablets which he was already taking. The intra-muscular injection of Diclonac (3 cc.) was also given to the patient. It is the definite case of opposite party No. 1 that he once again advised Mr Verma to get pathology investigations done for blood count, ESR, urine routine and Widal test and told him to meet him with the investigation reports.<br>On the next date — 12-7-1992 at about 1 p.m. Mrs Verma came to the residence of opposite party No. 1 and requested him to see Mr Verma at their residence. Thereupon opposite party No. 1 visited Mr Verma at his home and examined him. On clinical examination it was found that he had mild fever and that his blood pressure was 90/70 mm of Hg. On the patient being asked about the reports of the pathological investigations, opposite party No. 1 was informed that Mr Verma had not got them done. Thereupon opposite party No. 1 advised the complainant to get her husband admitted to some physician’s nursing home of their choice for examination, pathological investigations and further management. It is the case of opposite party No. 1 that at that time, Mrs Verma herself mentioned the name of Dr Warty (opposite party No. 2) and suggested admission of the patient into his Sanjeevani Nursing Home saying that she knew Dr Warty quite well because she had earlier been admitted for her delivery in Dr (Mrs) Warty’s Maternity Home. Opposite party No. 1 agreed to the said suggestion and gave a medical note setting out the treatment that he had so far been administering to the patient for being shown to Dr Warty. The complainant’s allegation that opposite party No. 1 had prescribed strong antibiotics without conducting any pathological investigations is strongly refuted by opposite party No. 1 as incorrect and untrue. He submitted that on the contrary he had specifically advised the deceased Mr Pramod Verma as early as on 6-7-1992 to undergo pathological tests and on finding that the tests had not been got done till then this advice was reiterated on the night of 11-7-1992. But, for reasons best known to himself, Mr Verma  ignored the said suggestion also and did not get the investigations done. When it was found in the afternoon of 12-7-1992 that the patient was not cooperating in getting the investigations done, opposite party No. 1 advised the complainant to get her husband admitted to some physician’s nursing home for pathological investigation and further management as it was felt by opposite party No. 1 that it would not be prudent or correct to proceed with the treatment of the patient without getting the requisite pathological investigation done.<br>Opposite party No. 1 has submitted that the treatment administered by him to late Pramod Verma was correct in every respect and there was no negligence, carelessness or deficiency of any kind on his part in relation to the said treatment given to the deceased Shri Verma during the period 4-7-1992 to 12-7-1992.”<br>10. Respondent 1 was examined on oath by the Commission, which was keen to know his qualifications and experience in Allopathic system of medicine. His statement was recorded in question-answer form and the relevant questions and answers given by Respondent 1 are set out below:<br>“Mr Raju Ramachandran, Advocate for the opposite party No. 1:<span style=\"white-space:pre\">	</span>Dr Patel, can you briefly describe your educational qualifications, the number of years you have put in practice, your age?<br>A:<span style=\"white-space:pre\">	</span>I passed my DHMS degree i.e. Diploma in Homoeopathic Medicines and Surgery in 1983 and thereafter I joined in Bombay one private nursing home.<br>Hon’ble President:<span style=\"white-space:pre\">	</span>This DHMS is conducted by?<br>A:<span style=\"white-space:pre\">	</span>This DHMS is conducted by Gujarat Homoeopathic Medical Council and from 1983 to 1989 I was working as a Chief Medical Officer there.<br>Hon’ble Pr. :<span style=\"white-space:pre\">	</span>Where?<br>A :<span style=\"white-space:pre\">	</span>In Patel Surgical Nursing Home at Bombay.<br>Hon’ble Pr. :<span style=\"white-space:pre\">	</span>That is your own?<br>A :<span style=\"white-space:pre\">	</span>No that is another Patel. He is himself a surgeon.<br>Mr Y. Krishnan :<span style=\"white-space:pre\">	</span>Is he an Allopathic surgeon?<br>A :<span style=\"white-space:pre\">	</span>Yes, he is an Allopathic surgeon. Up to 1989 I was there, then I started my private practice and opened my clinic in 1989 and another clinic I opened in 1991.<br>Hon’ble Pr. :<span style=\"white-space:pre\">	</span>Do you practice Allopathy or  Homoeopathy?<br>A :<span style=\"white-space:pre\">	</span>Both, I am practising.<br>Hon’ble Pr. :<span style=\"white-space:pre\">	</span>Are you registered as Allopathic practitioner?<br>A :<span style=\"white-space:pre\">	</span>I am registered with the Homoeopathic Council.<br>Hon’ble Pr. :<span style=\"white-space:pre\">	</span>How are you entitled to practise Allopathy?<br>A :<span style=\"white-space:pre\">	</span>As and when required in emergency cases.<br>Hon’ble Pr. :<span style=\"white-space:pre\">	</span>Are you permitted in the Medical Council’s Rules to practise Allopathy?<br>A :<span style=\"white-space:pre\">	</span>In Gujarat it is allowed.<br>Hon’ble Pr. :<span style=\"white-space:pre\">	</span>Are you allowed in Maharashtra?<br>A :<span style=\"white-space:pre\">	</span>I have not gone through.<br>Q :<span style=\"white-space:pre\">	</span>Your age also for the record?<br>A :<span style=\"white-space:pre\">	</span>I am right now running 35.<br>Q :<span style=\"white-space:pre\">	</span>Dr Patel, in the course of your Homoeopathic studies were you also given instructions in Allopathic medicines?<br>A :<span style=\"white-space:pre\">	</span>Yes.<br>Q :<span style=\"white-space:pre\">	</span>For how many years is the Homoeopathic course?<br>A :<span style=\"white-space:pre\">	</span>Four years.<br>Q :<span style=\"white-space:pre\">	</span>And your instructions in Allopathic medicines was for how long?<br>A :<span style=\"white-space:pre\">	</span>That is up to second year when we got the subject of Anatomy.<br>Q :<span style=\"white-space:pre\">	</span>When you were working in Patel Surgical Nursing Home where you had started your career, did you handle Allopathic cases? Did you prescribe Allopathic medicines?<br>A :<span style=\"white-space:pre\">	</span>Yes, in the absence of Dr Patel, I had to manage all the emergency cases including medicines.<br>Q :<span style=\"white-space:pre\">	</span>The decision whether to give Allopathic medicine or Homoeopathic medicine is taken by you or at the patient’s request?<br>A :<span style=\"white-space:pre\">	</span>No, I was taking the decision.”<br>11. The counter-affidavit and the statement of Respondent 1 recorded by the Commission are self-contradictory. While in the counter-affidavit, he has stated to have studied an integrated course in Allopathic and Homoeopathic system of medicine, in his statement on oath, he categorically stated that he had studied Homoeopathy only and instructions in Allopathic medicines were given only in the second year when he was studying Anatomy. Usually, Pharmacology is taught to students after they have learned Physiology and Anatomy. DHMS Diploma awarded to Respondent 1 though indicates that he had studied Anatomy, Physiology, Pathology, Forensic Medicine, Surgery, Practice of Medicine, Hygiene, Midwifery and Gynaecology, does not mention Pharmacology relating to Allopathic system of medicine to have been taught to him. He appears to have gained some experience (if at all it can be said to be experience) while he worked as Medical Officer in the private nursing home where he prescribed Allopathic medicines also. It is admitted by him that he was not registered as a medical practitioner in Allopathy under the relevant statutory provisions applicable to the State of Maharashtra to which a detailed reference shall be presently made.<br>12. It will be seen that Respondent 1 had all along treated Pramod Verma under Allopathic system prescribing Allopathic medicines, though he himself was registered as medical practitioner with the Gujarat Homoeopathic Medical Council as he had studied Homoeopathy for 4 years in the Medical College at Anand and had, thereafter, obtained a Diploma in Homoeopathic Medicine and Surgery. If, therefore, he had not studied Allopathy and had not pursued the prescribed course in Allopathy nor had he obtained any degree or diploma in Allopathy from any recognised medical college, could he prescribe and administer Allopathic medicines, is the question which is to be answered in this appeal with the connected question whether this will amount to actionable negligence.<br>13. The decision of this Court in Indian Medical Assn. v. V.P. Shantha1 has settled the dispute regarding applicability of the Act to persons engaged in the medical profession either as private practitioners or as government doctors working in hospitals or government dispensaries. It is also settled that a patient who is a ‘consumer’ within the meaning of the Act has to be awarded compensation for loss or injury suffered by him due to negligence of the doctor by applying the same tests as are applied in an action for damages for negligence.<br>14. Negligence as a tort is the breach of a duty caused by omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do. (See: Blyth v. Birmingham Waterworks Co.2; Bridges v. Directors of North London Rly.3; Governor General in Council v. Saliman4; Winfield and Jolowicz on Tort.)<br> 15. The definition involves the following constituents:<br>(1) a legal duty to exercise due care;<br>(2) breach of the duty; and<br>(3) consequential damages.<br>16. The breach of duty may be occasioned either by not doing something which a reasonable man, under a given set of circumstances would do, or, by doing some act which a reasonable prudent man would not do.<br>17. So far as persons engaged in the medical profession are concerned, it may be stated that every person who enters into the profession, undertakes to bring to the exercise of it, a reasonable degree of care and skill. It is true that a doctor or a surgeon does not undertake that he will positively cure a patient nor does he undertake to use the highest possible degree of skill, as there may be persons more learned and skilled than himself, but he definitely undertakes to use a fair, reasonable and competent degree of skill. This implied undertaking constitutes the real test, which will also be clear from a study and analysis of the judgment in Bolam v. Friern Hospital Management Committee5 in which, McNair, J., while addressing the jury summed up the law as under:<br>“The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. I do not think that I quarrel much with any of the submissions in law which have been put before you by counsel. Counsel for the plaintiff put it in this way, that in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if a medical man conforms with one of those proper standards then he is not negligent.”<br>18. This decision has since been approved by the House of Lords in Whitehouse v. Jordan6; Maynard v. West Midlands Regional Health Authority7; Sidaway v. Bethlem Royal Hospital8; Chin Keow v. Govt. of Malaysia9.<br>19. The test pointed out by McNair, J. covers the liability of a doctor in respect of his diagnosis, his liability to warn the patients of the risk inherent in the treatment and his liability in respect of the treatment.<br>20. This Court in Laxman Balkrishna Joshi (Dr) v. Dr Trimbak Bapu Godbole10 laid down that a doctor when consulted by a patient owes him certain duties, namely, (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of that treatment. A breach of any of these duties gives a cause of action for negligence to the patient.<br>21. The principles were reiterated in A.S. Mittal v. State of U.P.11 in which wide extracts from that judgment were made and approved.<br>22. It is in the light of the above principles that it is to be seen now whether there was a breach of duty of care on the part of Respondent 1 in the process of treatment of Pramod Verma.<br>23. Respondent 1, at the relevant time, was practising at Bombay and admittedly he was also registered under the Bombay Homoeopathic Practitioners’ Act, 1959, in which, ‘Homoeopathy’ has been defined under Section 2(8) as under:<br>“2. (8) ‘Homoeopathy’ means the Homoeopathic system of medicine and includes the use of Biochemic remedies.”<br>24. ‘Practitioner’ has been defined in Section 2(12) while “Registered Practitioner” is defined in Section 2(16). “Recognised Medical Qualification”, according to Section 2(14-A) means any of the medical qualifications in Homoeopathy, included in the Second or Third Schedule to the Homoeopathy Central Council Act, 1973.<br>25. Registration of practitioners is dealt with in Chapter IV of the Act. Section 20 provides that the Registrar shall prepare and maintain a register of Homoeopathic practitioners for the State of Maharashtra in accordance with the provisions of the Act. The particulars which are required to be entered in this register and the persons possessing requisite qualifications, whose names would be entered therein, are indicated in other sub-sections of this section.<br>26. Sub-section (12)(a) of Section 20 provides as under:<br>“20. (12)(a) Every registered practitioner shall be given a certificate of registration in the form prescribed by rules and shall practise Homoeopathy only. The registered practitioner shall display the certificate of registration in a conspicuous place in his dispensary, clinic or place of practice.”<br>27. On registration, a person gets the right to practise. This section also provides that it shall be lawful for such person to use, after his name, the words “Registered Homoeopathic Practitioner” in full to indicate that his name has been entered in the register under the Act.<br>28. Under Section 23, the Maharashtra Council of Homoeopathy has been given the power to remove the name of any registered practitioner if he is found guilty of any misconduct. Explanation appended to Section 23(1)  defines misconduct, inter alia, as any conduct which is infamous in relation to the profession.<br>29. The rights of registered practitioners are indicated in Section 28 which is quoted below:<br>“28. Notwithstanding anything in any law for the time being in force,—<br>(i) the expression ‘legally qualified medical practitioner’ or ‘duly qualified medical practitioner’ or any word importing a person recognised by law as a medical practitioner or member of the medical profession shall, in all Acts of the Legislature in the State of Maharashtra and in all Central Acts (in their application to the State of Maharashtra) insofar as such Acts relate to any matters specified in List II or List III in the Seventh Schedule to the Constitution of India, include a practitioner whose name is entered in the register under this Act;<br>(ii) a certificate required by any Act from any medical practitioner or medical officer shall be valid if such certificate has been signed by a practitioner whose name is entered in the register under this Act;<br>(iii) a practitioner whose name is entered in the register shall be eligible to hold any appointment as a physician or other medical officer in any Homoeopathic dispensary, hospital or infirmary supported by or receiving a grant from the State Government and treating patients according to the Homoeopathic system of medicine or in any public establishment, body or institution dealing with such system of medicine;<br>(iv) every registered practitioner shall be exempt, if he so desires, from serving on an inquest or under the Code of Criminal Procedure, 1973.”<br>30. The scheme of the Act, therefore, indicates that a person gets the right to practise in Homoeopathy on being registered as a medical practitioner. The certificate of registration issued to such practitioner requires him to practise in HOMOEOPATHY ONLY as is clear from the words “AND SHALL PRACTISE HOMOEOPATHY ONLY” used in sub-section (12)(a) of Section 20. Apart from the right to practice, other rights which become immediately available to a person on registration of his name are indicated in Section 28 which, inter alia, includes right to treat patients according to the Homoeopathic system of medicine.<br>31. Right to practise in Allopathic system of medicine as also the right to practise in Ayurvedic or Unani system of medicine is regulated by separate independent Central and local Acts. Indian Medical Council Act, 1956 deals, inter alia, with the registration of persons possessing requisite qualifications as medical practitioner in Allopathic system as also recognition of medical qualifications and examinations by Universities or Medical Institutions in India.<br> 32. Section 15 of this Act provides that any person possessing any of the qualifications mentioned in the Schedule appended to the Act, may apply for the registration of his name. Sub-sections 2 and 3 of Section 15, which are extremely relevant, are quoted below:<br>“15. (2) Save as provided in Section 25, no person other than a medical practitioner enrolled on a State Medical Register,—<br>(a) shall hold office as physician or surgeon or any other office (by whatever designation called) in Government or in any institution maintained by a local or other authority;<br>(b) shall practise medicine in any State;<br>(c) shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed or authenticated by a duly qualified medical practitioner;<br>(d) shall be entitled to give evidence at any inquest or in any court of law as an expert under Section 45 of the Indian Evidence Act, 1872 on any matter relating to medicine.<br>(3) Any person who acts in contravention of any provision of sub-section (2) shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.”<br>33. The impact of the above provisions is that no person can practise medicine in any State unless he possesses the requisite qualification and is enrolled as a medical practitioner on the State Medical Register. The consequences for the breach of these provisions are indicated in sub-section (3). If a person practises medicine without possessing either the requisite qualification or enrolment under the Act on any State Medical Register, he becomes liable to be punished with imprisonment or fine or both.<br>34. Apart from the Central Act mentioned above, there is the Maharashtra Medical Council Act, 1965 (46 of 1965) dealing with the registration of medical practitioners and recognition of qualification and medical institutions. Section 2(d) defines “Medical Practitioner” or ‘Practitioner’ as under:<br>“2. (d) ‘medical practitioner’ or ‘practitioner’ means a person who is engaged in the practice of modern scientific medicine in any of its branches including surgery and obstetrics, but not including veterinary medicine or surgery or the Ayurvedic, Unani, Homoeopathic or Biochemic system of medicine.”<br>(emphasis supplied)<br>35. It will be seen that the definition consists of two distinct parts; the first part contains the conclusive nature of phraseology and the latter part is the exclusionary part which specifically excludes Homoeopathic or Biochemic system of medicine. A register of medical practitioners is to be maintained in terms of the mandate contained in Section 16(1) of the Act. Under sub-section (3), a person possessing requisite qualification and on  payment of requisite fee can apply for registration of his name in the aforesaid Register.<br>36. A combined reading of the aforesaid Acts, namely, the Bombay Homoeopathic Practitioners’ Act, 1959, the Indian Medical Council Act, 1956 and the Maharashtra Medical Council Act, 1965 indicates that a person who is registered under the Bombay Homoeopathic Practitioners’ Act, 1959 can practise Homoeopathy only and that he cannot be registered under the Indian Medical Council Act, 1956 or under the State Act, namely, the Maharashtra Medical Council Act, 1965, because of the restriction on registration of persons not possessing the requisite qualification. So also, a person possessing the qualification mentioned in the Schedule appended to the Indian Medical Council Act, 1956 or the Maharashtra Medical Council Act, 1965 cannot be registered as a medical practitioner under the Bombay Homoeopathic Practitioners’ Act, 1959, as he does not possess any qualification in Homoeopathic system of medicine. The significance of mutual exclusion is relevant inasmuch as the right to practice in any particular system of medicine is dependent upon registration which is permissible only if qualification, and that too, recognised qualification, is possessed by a person in that system.<br>37. It is true that in all the aforesaid systems of medicine, the patient is always a human being. It is also true that Anatomy and Physiology of every human being all over the world, irrespective of the country, the habitat and the region to which he may belong, is the same. He has the same faculties and same systems. The Central Nervous system, the Cardio-Vascular system, the Digestive and Reproductive systems etc. are similar all over the world. Similarly, emotions, namely, anger, sorrow, happiness, pain etc. are naturally possessed by every human being.<br>38. But merely because the Anatomy and Physiology are similar, it does not mean that a person having studied one system of medicine can claim to treat the patient by drugs of another system which he might not have studied at any stage. No doubt, study of Physiology and Anatomy is common in all systems of medicines and the students belonging to different systems of medicines may be taught Physiology and Anatomy together, but so far as the study of drugs is concerned, the Pharmacology of all systems is entirely different.<br>39. An ailment, if it is not surgical, is treated by medicines or drugs. typhoid fever, for example, can be treated not only under Allopathic system of medicine, but also under the Ayurvedic, Unani and Homoeopathic systems of medicines by drugs prepared and manufactured according to their own formulae and pharmacopoeia. Therefore, a person having studied one particular system of medicine cannot possibly claim deep and complete knowledge about the drugs of the other system of medicine.<br>40. The bane of Allopathic medicine is that it always has a side-effect. A warning to this effect is printed on the trade label for the use of the person (doctor) having studied that system of medicine.<br> 41. Since the law, under which Respondent 1 was registered as a medical practitioner, required him to practise in HOMOEOPATHY ONLY, he was under a statutory duty not to enter the field of any other system of medicine as, admittedly, he was not qualified in the other system, Allopathy, to be precise. He trespassed into a prohibited field and was liable to be prosecuted under Section 15(3) of the Indian Medical Council Act, 1956. His conduct amounted to an actionable negligence particularly as the duty of care indicated by this Court in Dr Laxman Joshi case10 WAS BREACHED BY HIM ON ALL THE THREE COUNTS INDICATED THEREIN.<br>42. Negligence has many manifestations — it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or negligence per se, which is defined in Black’s Law Dictionary as under:<br>“Negligence per se.—Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes.”<br><font color=\"#9c0000\">43. A person who does not have knowledge of a particular system of medicine but practises in that system is a quack and a mere pretender to medical knowledge or skill, or to put it differently, a charlatan.</font><br>44. Where a person is guilty of negligence per se, no further proof is needed. However, we may notice that Respondent 1 started treatment of Pramod Verma for viral fever as it was “very much prevalent in the locality”. Subsequently, he treated Pramod Verma for typhoid fever since it was “prevalent at that time in the locality in question and neighbouring localities of Bombay”. On both the occasions, treatment was given for fever which Respondent 1 thought was prevalent in the locality and, therefore, Pramod Verma would also be suffering from that fever. He did not feel it necessary to confirm the diagnosis by pathological tests which would have positively established whether Pramod Verma was suffering from typhoid fever. Respondent 1 has given out in his statement on oath, recorded by the Commission, that he had advised blood test and urine test but Pramod Verma did not get it done. All the prescriptions of Respondent 1 have been filed by the appellant but on none of them any advice was written by Respondent 1 for blood or urine test. We cannot ignore the usual practice of almost all the doctors that when they want pathological tests to be done, they advise in writing on a prescription setting out all the tests which are required to be done. Admittedly, Respondent 1 had not done it in writing. He says that he had advised it orally. This cannot be believed as this statement is contrary to the usual code of conduct of medical practitioners.<br> 45. The condition of Pramod Verma while under treatment of Respondent 1 deteriorated so much so that he had to be shifted to the private nursing home of Respondent 2 and from that nursing home, he was shifted to the Hinduja Hospital in an unconscious state where he ultimately breathed his last.<br>46. On 29-11-1995, the following order was passed by us:<br>“This appeal is sequel to a complaint filed by Ms Poonam Verma, before the National Consumer Disputes Redressal Commission, New Delhi, (the Commission), alleging negligence and deficiency in service on the part of two doctors of Bombay, namely, Ashwin Patel and Rajeev M. Warty. The Commission recorded the statements of both the doctors. Dr Ashwin Patel as RW 1 and Dr Rajeev M. Warty as RW 3, appeared before the Commission. Dr Ashwin Patel produced an expert, namely, Dr Jitender V. Patel as RW 2 in support of his case before the Commission.<br>Dr Ashwin Patel is admittedly a Homoeopath physician. It is also admitted that he prescribed Allopathic medicines to the deceased husband of the complainant. Dr Rajeev M. Warty is an Allopath practitioner running a nursing home in Bombay. Deceased husband of the complainant was admitted in the nursing home where he stayed for two-three days. Finally, the deceased was admitted in Hinduja Hospital, where he passed away within four hours of his admission. No expert was produced by the complainant before the Commission. The Commission finally dismissed the complaint by a speaking order.<br>We are of the view that in order to do complete justice between the parties, it is necessary to have opinion from eminent doctors on the basis of the material which is on the record. We, therefore, request the Director of the All India Institute of Medical Sciences, New Delhi to appoint a Board of Doctors/Specialists in Medicine and other related branches, to examine the material which is being sent along with this order, regarding the correctness, adequacy and other relative aspects of the treatment rendered to the deceased. The Board shall give its opinion within two weeks of the receipt of this order. Registry to send a copy of this order to the Director of the All India Institute of Medical Sciences, New Delhi, within 2 days along with the following documents:<br>(1) Copies of the statements of Dr Ashwin Patel (RW 1), Dr Jitender V. Patel (RW 2) and Dr R.M. Warty (RW 3). These documents are at pp. 141 to 201 of the record received from the Commission.<br>(2) Copies of the documents from pp. 20 to 48 and 121 to 129 of the abovesaid record.<br>The opinion of the Board of Doctors shall be sent to this Court in a sealed cover, within the period indicated by us.”<br>47. In pursuance of the above order, Dr J.N. Pande, Professor and Head, Department of Medicine, Dr A.K. Mukhopadhyaya, Professor and Head,  Department of Laboratory Medicine, Dr K. Prasad, Associate Professor of Neurology, Dr Y.K. Joshi, Associate Professor of Gastroenterology, Dr Kamal Kishore, Associate Professor of Pharmacology and Dr Shakti Gupta, Assistant Professor of Hospital Administration of the All India Institute of Medical Sciences examined the record of this case including all the prescriptions and they gave the following opinion:<br>“Mr Pramod Verma suffered from fever on the 3rd of July, 1992 and after a brief period of illness of less than 2 weeks he expired on the 15th of July, 1992 at Hinduja Hospital. It was felt that with the material available to the Medical Board, it is not possible to arrive at a definitive conclusive diagnosis regarding the deceased. It appears most probably that Mr Verma had an infection leading to septicaemia possibly on a background of hitherto unrecognized diabetes mellitus. He probably suffered from some intracranial complications presumably related to infection and died as a consequence thereof. He received the usual treatment by antipyretics and commonly used antibiotics in the initial stages of his illness as per the usual practice in patients suffering from fever. Mr Verma’s illness however followed a fulminant course with rapid deterioration in his general condition requiring admission into a private nursing home and subsequently to a large referral hospital. From the available information it appears that the treatment administered to Mr Verma was in keeping with the usual practice in the management of such problems. It is unfortunate that Mr Verma had a rather fulminant course of his disease and expired before the definitive diagnosis could be established.”<br>48. The Professors have not been able to give a positive opinion but they do observe that Pramod Verma died before a positive diagnosis could be established. The sad story had its beginning in the hands of a quack Allopathic doctor, namely, Respondent 1 who, having not studied Allopathic system of medicine, treated Mr Pramod Verma in that system and gave Broad Spectrum Antibiotics with antipyretics for viral fever “which was prevalent” and then for typhoid fever “which was also prevalent” together with tablets as also intra-muscular injections of a sodium compound to relieve him of pain without ascertaining the cause of the pain. Since Pramod Verma had already suffered at the hands of Respondent 1 and his condition had already been damaged to an unascertainable extent before he was shifted to the clinic of Respondent 2, we do not, specially in view of the report of the Professors of AIIMS, consider it proper to proceed against Respondent 2.<br>49. But we are of the positive opinion that Respondent 1, having practised in Allopathy, without being qualified in that system, was guilty of negligence per se and, therefore, the appeal against him has to be allowed in consonance with the maxim sic utere tuo ut alienum non loedas (a person is held liable at law for the consequences of his negligence), leaving it to repeat to himself the words of Dr J.C. Lettsom (On himself):<br>“When people’s ill, they comes to I,<br> I physics, bleeds, and sweats ’em;<br>Sometimes they live, sometimes they die.<br>What’s that to I? I lets ’em.”<br>50. Pramod Verma was 35 years of age and was getting Rs 5700 per month as salary. He died a young death which has deprived his dependants, namely, the widow, two children and parents, of the monetary benefit they were getting. They are entitled under law to be compensated.<br>51. For the reasons stated above:<br>(a) The appeal as against Respondent 1 is allowed and the judgment of the Commission, to that extent, is set aside. The claim of the appellant is decreed as against Respondent 1 for a sum of Rs 3,00,000 payable to her within three months from today failing which it shall be recoverable in accordance with law.<br>(b) Medical Council of India constituted under the Indian Medical Council Act, 1956 as also the State Medical Council under the Maharashtra Medical Council Act, 1965 to whom a copy of this judgment shall be sent shall consider the feasibility of initiating appropriate action against Respondent 1 under Section 15(3) of the Indian Medical Council Act, 1956 for his having practised in Allopathic system of medicine without being registered with the Medical Council of India or the State Medical Council as also without possessing the requisite qualifications.<br>(c) The appellant shall be entitled to her costs which are quantified at Rs 30,000.<br>———<br>1<span style=\"white-space:pre\">	</span>(1995) 6 SCC 651<br>2<span style=\"white-space:pre\">	</span>(1856) 11 Exch 781 : (1843-60) All ER Rep 478<br>3<span style=\"white-space:pre\">	</span>(1874) LR 7 HL 213 : 43 LJQB 151<br>4<span style=\"white-space:pre\">	</span>ILR (1948) 27 Pat 207 : AIR 1949 Pat 388<br>5<span style=\"white-space:pre\">	</span>(1957) 2 All ER 118<br>6<span style=\"white-space:pre\">	</span>(1981) 1 All ER 267 : (1981) 1 WLR 246, HL<br>7<span style=\"white-space:pre\">	</span>(1985) 1 All ER 635 : (1984) 1 WLR 634, HL<br>8<span style=\"white-space:pre\">	</span>(1985) 1 All ER 643 : 1985 AC 871 : (1985) 2 WLR 480, HL<br>9<span style=\"white-space:pre\">	</span>(1967) 1 WLR 813, PC<br>10<span style=\"white-space:pre\">	</span>AIR 1969 SC 128 : (1969) 1 SCR 206<br>11<span style=\"white-space:pre\">	</span>(1989) 3 SCC 223 : 1989 SCC (Cri) 539</h4><p><br></p>', '51bd6c9aa4fc8edffa4993a13ca9017c.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1996-05-10', 1, '', '', '2021-02-13 06:11:52', '2021-02-14 02:05:54');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(459, 'troJxZJYGZ9d2U0nDXEbUHT0m', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for injunction in respect of vacant site. Two persons claim to be in possession of a vacant site. One who is able to establish title will be considered to be in possession as against the person who is not able to establish title.  Supreme Court', '<h4><span style=\"background-color: rgb(255, 255, 0);\"><i>Full Judgment - See paragraphs 13 and 16</i></span><br>In the Supreme Court of India<br>Anathula Sudhakar v. P. Buchi Reddy<br>Civil Appeal No. 6191 of 2001, decided on March 25, 2008<br>Justice R.V.Raveendran and Justice P. Sathasivam<br>Reported in (2008) 4 SCC 594.<br>Justice R.V. RAVEENDRAN, J.— This appeal by special leave is by the defendant in a suit for permanent injunction. Puli Chandra Reddy and Puli Buchi Reddy were the plaintiffs in the said suit. Both are now no more. The legal representatives of Puli Chandra Reddy are Respondents 2 to 5 and legal representatives of Puli Buchi Reddy are Respondents 1(i) to (iii). The suit related to two sites bearing Nos. 13/776/B and 13/776/C measuring 110 sq yd and 187 sq yd in Matwada, Warangal Town, together referred to as “the suit property”.<br>2. Plaintiffs 1 and 2 claimed to be the respective owners in possession of the said two sites having purchased them under two registered sale deeds dated 9-12-1968 (Exts. A-1 and A-2) from Rukminibai. The plaintiffs further claimed that the said two sites were mutated in their names in the municipal records. They alleged that on 3-5-1978, when they were digging trenches in order to commence construction, the defendant interfered with the said work. The plaintiffs, therefore, filed suit OS No. 279 of 1978 in the file of Principal District Munsif, Warangal, for a permanent injunction to restrain the defendant from interfering with their possession.<br>3. The defendant resisted the suit. He claimed that the suit property measuring 300 sq yd in Premises No. 13/776 was purchased by him from K.V. Damodar Rao (brother of the plaintiffs’ vendor Rukminibai) under registered sale deed dated 7-11-1977 (Ext. B-1); that he was put in possession of the suit property by Damodar Rao; that the suit property had been transferred to his name in the municipal records; that he applied for and obtained sanction of a plan for construction of a building thereon; and that he had also obtained a loan for such construction from the Central Government by mortgaging the said property. According to him, when he commenced construction in the suit property, the plaintiffs tried to interfere with his possession and filed a false suit claiming to be in possession.<br>4. The trial court framed the following issues—(i) whether the plaintiffs are in exclusive possession of the suit sites (house plots)? (ii) whether the defendant has interfered with the possession of the plaintiffs over the suit plots? (iii) whether the plaintiffs are entitled to permanent injunction? and (iv) to what relief?<br>5. The plaintiffs examined themselves as PW 1 and PW 2. They examined their vendor Rukminibai as PW 4. Puli Malla Reddy and Vadula Ramachandram examined as PW 3 and PW 5, were the purchasers of two adjacent sites from Rukminibai. One of them (PW 3) was the cousin of the plaintiffs and was also the scribe and attestor in respect of the two sale deeds in favour of the plaintiffs. The plaintiffs exhibited the two sale deeds dated 9-12-1968 in their favour as Exts. A-1 and A-2 and municipal demand notices and tax receipts, all of the year 1978 onwards, as Exts. A-3 to A-11. A plan showing the sites was marked as Ext. A-12. Two letters said to have been written by Damodar Rao were marked as Exts. A-13 and A-14. The sale deed executed by Rukminibai in favour of PW 3 was marked as Ext. X-1 and sale agreement in favour of PW 5 was marked as Ext. X-2. The defendant gave evidence as DW 1 and examined his vendor Damodar Rao as DW 2. He exhibited the certified copy of the sale deed dated 7-11-1977 in his favour as Ext. B-1, a certified copy of mortgage deed executed by him in favour of the Central Government as Ext. B-2, the licence and sanctioned plan for construction of a house in the suit plot as Exts. B-3 and B-4 and the loan sanction proceedings as Ext. B-5. He also exhibited a property tax receipt dated 12-2-1978 issued to Damodar Rao (Ext. B-6), water charge bill dated 20-9-1978 for Houses Nos. 13/775 and 13/776 issued to Damodar Rao (Ext. B-7), and property tax receipts dated 19-2-1972, 14-10-1973, 28-3-1970 and 13-11-1968 in the name of Damodar Rao (Exts. B-8 to B-11).<br>6. There was no dispute that the site purchased by the defendant from Damodar Rao under deed dated 7-11-1977 is the same as the two sites purchased by the plaintiffs from Rukminibai under sale deeds dated 9-12-1968. There is also no dispute that the suit property is a vacant plot and it was originally portion of the backyard of the property bearing Nos. 13/775 and 13/776, belonging to Damodar Rao, and that he was shown as registered owner of the said Properties Nos. 13/775 and 13/776 in the municipal records.<br>7. The plaintiffs led evidence to the effect that Damadar Rao orally gifted the backyard portion of Nos. 13/775 and 13/776 (separated from the main building by a dividing wall) to his sister Rukminibai in the year 1961, by way of “pasupu kumkumam” (a gift made to a daughter or sister, conferring absolute title, out of love and affection, with a view to provide for her); that Rukminibai sold three portions of the gifted site to PW 3, Plaintiff 1, Plaintiff 2 in the year 1968 and they were in possession ever since 1968; and that an agreement of sale was also entered in regard to another portion with PW 5 as per Ext. X-2. On the other hand, the defendant led evidence denying that the suit property was given to Rukminibai by way of “pasupu kumkumam”. His vendor Damodar Rao gave evidence that he was the owner of the suit property and he sold it to the defendant under deed dated 7-11-1977 and put him in possession thereof. While the plaintiffs alleged that plots were mutated in their names after their purchase, the defendant alleged that the suit property purchased by him was a part of Plot No. 13/776 which stood in the name of Damodar Rao in the municipal records. Neither party produced the order of mutation or any certificate from the municipal authorities, certifying or showing mutation to their names. They only produced tax receipts. The tax receipts produced by the plaintiffs showed that they had paid taxes from 1978 onwards, that is, for a period subsequent to the sale by Damodar Rao in favour of the defendant. The plaintiffs did not produce any tax-paid receipt to show that the property stood in the name of Rukminibai. Nor did they produce any tax receipt for the period 9-12-1968 (date of purchase by the plaintiffs) to 7-11-1977 (date of purchase by the defendant). The defendant produced tax receipts to show that the suit property stood in the name of his vendor Damodar Rao till the date of sale in his favour.<br>8. The trial court decreed the suit by judgment dated 31-12-1985. Relying on the two sale deeds in favour of the plaintiffs, the tax-paid receipts and the oral evidence, it held that the plaintiffs were in possession of the suit property from the date of purchase and the defendant had interfered with their possession. The defendant filed an appeal challenging the judgment and decree of the trial court before the Addl. District Judge, Warangal. The first appellate court held that the defendant was in possession of the suit property and the plaintiffs had not made out, even prima facie, either title or possession over the suit property. It was of the view that in the circumstances a mere suit for injunction was not maintainable, and at least when the defendant filed his written statement denying the title of the plaintiffs and setting up a clear and specific case of title in himself, the plaintiffs ought to have amended the plaint to convert the suit into one for declaration and injunction. Consequently, it allowed the appeal by judgment and decree dated 9-12-1991 and dismissed the suit. Being aggrieved, the plaintiffs filed SA No. 29 of 1992.<br>9. The High Court by its judgment dated 18-1-1999 allowed the second appeal and restored the judgment and decree of the trial court. For this purpose, the High Court examined the evidence in detail and recorded the following findings:<br>(i) There was an oral gift of the backyard portion (No. 13/776) by way of “pasupu kumkumam” by Damodar Rao in favour of his sister Rukminibai in the year 1961. As a gift of an immovable property in favour of a daughter or sister by way of “pasupu kumkumam” could be oral, the absence of any registered document did not invalidate the gift.<br>(ii) Damodar Rao negotiated with the plaintiffs, for sale of the two sites, on behalf of his sister Rukminibai, representing that his sister was the owner thereof and attested the sale deeds executed by his sister Rukminibai in favour of the plaintiffs as a witness and identified her as the executant of the sale deeds before the Sub-Registrar. Those acts of Damodar Rao supported the claim of Rukminibai that there was an oral gift. Alternatively, even if there was no gift in favour of Rukminibai, and Damodar Rao was the owner, the aforesaid acts of Damodar Rao showed that with his implied consent, Rukminibai represented to be the ostensible owner of the suit property and transferred the same to the plaintiffs for consideration. This attracted the provision of Section 41 of the Transfer of Property Act, 1882 and therefore the transfer in favour of the plaintiffs was not voidable at the instance of Damodar Rao or his successor-in-interest on the ground that Rukminibai was not the owner of the suit property.<br>10. The High Court consequently held that the plaintiffs had established their title in regard to the two vacant sites purchased by them and drew an inference that possession was presumed to be with them by applying the principle of possession follows title. The High Court also held that it was not necessary for the plaintiffs to sue for declaration of title, as the question of title could be examined incidental to the question of possession.<br>11. The said judgment is challenged by the defendant, in this appeal by special leave, on the following grounds:<br>(a) The suit for permanent injunction without seeking declaration of title was not maintainable on the facts of the case. At all events, the High Court ought not to have recorded a finding of fact on a seriously disputed and complicated issue of title, in a suit for a mere injunction.<br>(b) The first appellate court held that the plaintiffs had neither established their title nor their possession and their remedy was to file a suit for declaration and consequential relief. The High Court, in a second appeal, ought not to have reversed the said decision of the first appellate court, by the process of examining and recording a finding on title, even though there was no issue regarding title.<br>(c) An oral gift by a brother to a sister was not permissible. At all events, such an oral gift even if permissible, can be made only at the time of a partition or at the time of marriage of the sister, with a view to making a provision for her. The High Court erred in holding that there was a valid oral gift by Damodar Rao in favour of Rukminibai.<br>(d) There was no plea in the plaint about the ostensible ownership of Rukminibai or about any acts of Damodar Rao which demonstrated the consent of Damodar Rao to such ostensible ownership. Nor was there any plea about due and diligent enquiries by the plaintiffs regarding title before purchase. Therefore the High Court erred in holding that the sales in favour of the plaintiffs were protected by Section 41 of the Transfer of Property Act, 1882.<br>(e) In the absence of pleadings and an issue regarding title, the defendant had no opportunity to effectively lead evidence on the question of title.<br>(f) The High Court erred in equating the plaintiffs’ failure to produce title deeds of their vendor to the defendant’s failure to produce the title deeds of his vendor. The High Court overlooked the fact that there was no dispute that the defendant’s vendor Damodar Rao was the earlier owner of the suit property and it was for the plaintiffs who had set up a case that their vendor Rukminibai derived title from Damodar Rao under an oral gift, to prove the said claim.<br>12. On the contentions urged, the following questions arise for our consideration in this appeal:<br>(i) What is the scope of a suit for prohibitory injunction relating to immovable property?<br>(ii) Whether on the facts, the plaintiffs ought to have filed a suit for declaration of title and injunction?<br>(iii) Whether the High Court, in a second appeal under Section 100 CPC, could examine the factual question of title which was not the subject-matter of any issue and based on a finding thereon, reverse the decision of the first appellate court?<br>(iv) What is the appropriate decision?<br>Re: Question (i)<br></h4><h4><font color=\"#9c0000\">13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.</font></h4><h4><font color=\"#9c0000\">13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.</font></h4><h4><font color=\"#9c0000\">13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.</font></h4><h4><font color=\"#9c0000\">13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.</font></h4><h4>14. We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the plaintiff’s title raises a cloud on the title of the plaintiff to the property. A cloud is said to raise over a person’s title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff’s title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that the defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raise a serious dispute or cloud over the plaintiff’s title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.<br>15. In a suit for permanent injunction to restrain the defendant from interfering with the plaintiff’s possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and the defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as&nbsp; for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.<br><font color=\"#ce0000\">16. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs.</font><br>17. There is some confusion as to in what circumstances the question of title will be directly and substantially in issue, and in what circumstances the question of title will be collaterally and incidentally in issue, in a suit for injunction simpliciter. In Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple v. Rajanga Asari2 the Madras High Court considered an appeal arising from a suit for possession and injunction. The defendant contended that the plaintiff had filed an earlier suit for injunction which was dismissed, and therefore the plaintiff was precluded from agitating the issue of title in the subsequent suit, being barred by the principle of res judicata. It was held that the earlier suit was only for an injunction (to protect the standing crop on the land) and the averments in the plaint did not give rise to any question necessitating denial of the plaintiff’s title by the defendant; and as the earlier suit was concerned only with a possessory right and not title, the subsequent suit was not barred. There are several decisions taking a similar view that in a suit for injunction, the question of title does not arise or would arise only incidentally or collaterally, and therefore a subsequent suit for declaration of title would not be barred.<br>18. On the other hand, in Sulochana Amma v. Narayanan Nair3 this Court observed that a finding as to title given in an earlier injunction suit, can operate as res judicata in a subsequent suit for declaration of title. This was on the premise that in some suits for injunction where a finding on possession solely depended upon a finding on the issue of title, it could be said that the issue of title directly and substantially arose for consideration; and when the same issue regarding title is put in issue, in a subsequent title suit between the parties, the decision in the earlier suit for injunction may operate as res judicata. This Court observed: (SCC p. 20, para 9)<br>“9. Shri Sukumaran further contended that the remedy of injunction is an equitable relief and in equity, the doctrine of res judicata cannot be extended to a decree of a court of limited pecuniary jurisdiction. We find no force in the contention. It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata.”<br>This was reiterated in Annaimuthu Thevar v. Alagammal4.<br>19. This Court in Sajjadanashin Sayed Md. B.E. Edr. v. Musa Dadabhai Ummer5 (at SCC pp. 362-63, para 24) noticed the apparent conflict in the views expressed in Vanagiri6 and Sulochana Amma2 and clarified that the two decisions did not express different views, but dealt with two different situations, as explained in Corpus Juris Secundum (Vol. 50, para 735, p. 229):<br>“Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title.”<br>20. In Vanagiri1 the finding on possession did not rest on a finding on title and there was no issue regarding title. The case related to an agricultural land and raising of crops and it was obviously possible to establish by evidence who was actually using and cultivating the land and it was not necessary to examine the title to find out who had deemed possession. If a finding on title was not necessary for deciding the question of possession and grant of injunction, or where there was no issue regarding title, any decision on title given incidentally and collaterally will not, operate as res judicata. On the other hand, the observation in Sulochana Amma2 that the finding on an issue relating to title in an earlier suit for injunction may operate as res judicata, was with reference to a situation where the question of title was directly and substantially in issue in a suit for injunction, that is, where a finding as to title was necessary for grant of an injunction and a specific issue in regard to title had been raised. It is needless to point out that a second suit would be barred, only when the facts relating to title are pleaded, when an issue is raised in regard to title, and parties lead evidence on the issue of title and the court, instead of relegating the parties to an action for declaration of title, decides upon the issue of title and that decision attains finality. This happens only in rare cases. Be that as it may. We are concerned in this case, not with a question relating to res judicata, but a question whether a finding regarding title could be recorded in a suit for injunction simpliciter, in the absence of pleadings and issue relating to title.<br>21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:<br>(a) Where a cloud is raised over the plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.<br>(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.<br>(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar7). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.<br>(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler&nbsp; vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.<br>Re: Question (ii)<br>22. Rukminibai did not have any title deed to the suit property. The case of the plaintiffs during arguments was that the gift made in the year 1961, being by way of “pasupu kumkumam” in favour of a sister by a brother, could be oral and did not require a registered instrument. But the property allegedly gifted to Rukminibai was not mutated in the name of Rukminibai in the municipal records, but continued in the name of Damodar Rao even after 1961. Damodar Rao was a resident of Warangal and staying in the house adjoining the suit property. Rukminibai was a resident of Hyderabad. Therefore, as on the date of sales in favour of the plaintiffs, 9-12-1968, Rukminibai had neither any title deed nor actual possession. Nor was the property mutated in her name in the municipal records. The tax-paid receipts produced by the plaintiffs related to a period subsequent to the execution of the sale deeds by Rukminibai in their favour and subsequent to the sale by Damodar Rao in favour of the defendant. On the other hand, the suit property was sold in favour of the defendant by Damodar Rao who was shown as registered owner in the municipal records and who even according to the plaintiffs was the original owner of the property.<br>23. The first appellate court found that the evidence of the plaintiffs and their witnesses as to the title of the plaintiffs’ vendor Rukminibai was sketchy and inconsistent. It referred to three versions as to how Rukminibai got the property. The first version (as per PW 1) was that the suit property belonged to Rukminibai’s father and he had given it to his daughter Rukminibai by way of “pasupu kumkumam”. The second version (as per PW 2) was that after the death of Rukminibai’s father, there was an oral partition between K.V. Damodar Rao and Rukminibai and at that partition, the suit property was allotted to Rukminibai. But both PW 1 and PW 2 admitted that they did not make any enquiry with Rukminibai about her title. The third version (as per PW 4 Rukminibai) was that Damodar Rao made an oral gift of the plot in her favour by way of “pasupu kumkumam” in the year 1961. She admitted that there was no special occasion for gifting the plot to her in the year 1961, as she was married long prior to 1961.<br>24. The suit sites were vacant plots. Both sides admitted that Damodar Rao was the original owner and that entire property stood in his name. The defendant claims title through Damodar Rao. The plaintiffs claim title through Rukminibai who neither has any deed of title nor any document in support of title or possession. Admittedly, there was no mutation in her name. This means that the plaintiffs claim title through someone who claimed to be owner in pursuance of an oral gift in the year 1961 without the property being mutated in her name, whereas the defendant claims title from the person who was admittedly the original owner who was registered as owner in the revenue records. Necessarily, therefore, prima facie it has to be held that the defendant had made out possession following title.<br>25. The plaintiffs and their witnesses gave evidence to the effect that Damodar Rao represented that his sister Rukminibai was the owner of the plot and negotiated for sale of the several portions thereof in favour of the plaintiffs and PW 3, and that Damodar Rao had attested the sale deeds in their favour and identified his sister as the vendor executant before the Sub-Registrar, at the time of registration of the sale deeds. It is no doubt true that if that was the position, it is possible for them to contend that having regard to Section 41 of the Transfer of Property Act, when the ostensible owner Rukminibai sold the property with the implied consent of Damodar Rao, the defendant as a transferee from Damodar Rao could not contend that the sales were not valid. They also alleged that the defendant was a close relative of Damodar Rao and the sale in favour of the defendant was only nominal, intended to defeat their title. But Damodar Rao in his evidence denied having made the oral gift or having attested the sale deeds in favour of the plaintiffs. He also denied having identified his sister at the time of registration of the sale deeds. Whether Rukminibai’s evidence and other plaintiffs’ witnesses should be believed or whether evidence of Damodar Rao should be believed on the question of title, can be examined only when there are necessary pleadings and an issue regarding title. Further, where title of the plaintiffs is disputed and claim for possession is purely based on title, and the plaintiffs have to rely on various principles of law relating to ostensible ownership and Section 41 of the TP Act, validity of an oral gift by way of “pasupu kumkumam” under Hindu Law, estoppel and acquiescence, to put forth a case of title, such complicated questions could properly be examined only in a title suit, that is, a suit for declaration and consequential reliefs, and not in a suit for an injunction simpliciter.<br>Re: Questions (iii) and (iv)<br>26. The High Court formulated the following as substantial questions of law:<br>“(i) Whether the plaintiffs’ suit for permanent injunction without seeking declaration of title is maintainable under law?<br>(ii) Whether the acts and deeds of Damodar Rao (DW 2) made the plaintiffs to believe that Rukminibai is the ostensible owner of the suit property and thus made them to purchase the suit property for valid consideration and, therefore, the provisions under Section 41 of the Transfer of Property Act are attracted and as such DW 2 could not pass on a better title to the defendant under Ext. B-1?<br>(iii) Whether the alleged oral gift of the suit property in favour of Rukminibai by DW 2 towards pasupu kumkumam is legal, valid and binding on DW 2 though effected in contravention of the provisions under Section 123 of the Transfer of Property Act?”<br>Having regard to the pleadings and issues, only the first question formulated by the High Court can be said to arise for its consideration in the second appeal. The second and third questions did not arise at all, as we will presently demonstrate.<br>27. The second question of law formulated by the High Court is a mixed question of fact and law, that is, whether the factual ingredients necessary to claim the benefit of Section 41 of the Transfer of Property Act were made out by the plaintiffs. To attract the benefit of Section 41 of the TP Act, the plaintiffs had to specifically plead the averments necessary to make out a case under Section 41 of the TP Act and claim the benefit or protection under that section. The averments to be pleaded were:<br>(a) that Rukminibai was the ostensible owner of the property with the express or implied consent of Damodar Rao;<br>(b) that the plaintiffs after taking reasonable care to ascertain that the transferor or Rukminibai had the power to make the transfer, had acted in good faith in purchasing the sites for valid consideration; and<br>(c) that, therefore, the transfer in favour of the plaintiffs by Rukminibai was not voidable at the instance of Damodar Rao or anyone claiming through him.<br>These pleas were not made in the plaint. When these were not pleaded, the question of the defendant denying or traversing them did not arise. In the absence of any pleadings and issue, it is ununderstandable how a question of law relating to Section 41 of the TP Act could be formulated by the High Court.<br>28. The third question of law formulated by the High Court, is also a mixed question of fact and law—firstly, whether there was an oral gift and secondly, whether the alleged oral gift was valid. Here again, there was no averment in the plaint in respect of any gift, oral or otherwise, by Damodar Rao in favour of Rukminibai or about its validity. Consequently, there was no opportunity to the defendant to deny the oral gift in his written statement. There was no issue on this aspect also. Therefore, this question, which could not have been considered in the suit, could not also have been considered in the second appeal.<br>29. The High Court, in the absence of pleadings and issues, formulated in a second appeal arising from a suit for bare injunction, questions of law unrelated to the pleadings and issues, presumably because some evidence was led and some arguments were advanced on those aspects. The only averment in the plaint that the plaintiffs were the owners of the suit property having purchased the same under sale deeds dated 9-12-1968, did not enable the court, much less a High Court in second appeal, to hold a roving enquiry into an oral gift and its validity or validation of ostensible title under Section 41 of the TP Act. No amount of evidence or arguments can be looked into or considered in the absence of pleadings and issues, is a proposition that is too well settled.<br>30. The High Court while reversing the decision of the first appellate court, examined various aspects relating to title and recorded findings relating to title. It held that gifting a property to a daughter or sister by way of “pasupu kumkumam”, could be done orally and did not require a registered instrument. Even though there was no independent evidence of oral gift except the assertion to (sic of) Rukminibai (which was denied by Damodar Rao), the High Court, held that there was an oral gift in her favour. It also accepted the evidence of PW 3 and PW 5 and the plaintiffs, that Damodar Rao negotiated for the sale of the plots representing that they belonged to his sister Rukminibai and that he attested the sale deeds as a witness and identified Rukminibai as the executant before the Sub-Registrar and therefore, Section 41 of the TP Act came to the aid of the plaintiffs and Damodar Rao was estopped from denying the title of his sister. The High Court in a second appeal arising from a suit for an injunction, could not have recorded such findings, in the absence of pleadings and issue regarding title.<br>31. We are therefore of the view that the High Court exceeded its jurisdiction under Section 100 CPC, firstly, in re-examining questions of fact, secondly, by going into the questions which were not pleaded and which were not the subject-matter of any issue, thirdly, by formulating questions of law which did not arise in the second appeal, and lastly, by interfering with the well-reasoned judgment of the first appellate court which held that the plaintiffs ought to have filed a suit for declaration.<br>32. We are conscious of the fact that the suit was filed in the year 1978 and driving the plaintiffs to a fresh round of litigation after three decades would cause hardship to them. But the scope of civil cases are circumscribed by the limitations placed by the rules of pleadings, nature of relief claimed and the court fee paid. The predicament of the plaintiffs, was brought upon themselves, by failing to convert the suit to one for declaration even when the written statement was filed, and by not seeking amendment of issues to include an issue on the question of title. In the absence of a prayer of declaration of title and an issue regarding title, let alone the pleadings required for a declaration of title, the parties cannot be said to have an opportunity to have a full-fledged adjudication regarding title.<br>33. We, therefore, allow this appeal, set aside the judgment of the High Court and dismiss the suit. Nothing stated herein or by the courts below shall be construed as expression of any opinion regarding title, in any future suit for declaration and consequential reliefs that may be filed by the appellants, in accordance with law. Parties to bear their respective costs.<br>Judgments referred.&nbsp;<br>1<span style=\"white-space:pre\">	</span>From the Final Judgment and Order dated 18-1-1999 of the High Court of Judicature of Andhra Pradesh at Hyderabad in SA No. 29 of 1992<br>2<span style=\"white-space:pre\">	</span>AIR 1965 Mad 355<br>3<span style=\"white-space:pre\">	</span>(1994) 2 SCC 14<br>4<span style=\"white-space:pre\">	</span>(2005) 6 SCC 202<br>5<span style=\"white-space:pre\">	</span>(2000) 3 SCC 350<br>6<span style=\"white-space:pre\">	</span>Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple v. Rajanga Asari, AIR 1965 Mad 355<br>7<span style=\"white-space:pre\">	</span>Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202<br></h4><p><br></p>', '3078322d8f0afec415cadcf6fccf75a1.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2008-03-25', 1, '', '', '2021-02-14 03:38:38', '2021-02-14 03:55:03');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(458, 'nyWn6xuACwLhu2kkZ6tFk5eGA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Renouncants married under French Civil Code can not apply for divorce under Indian Christian Marriage Act 1872 or the Special Marriage Act 1954. Only the French Civil Code governs them.  Karnataka High Court. ', '<h4 style=\"text-align: justify; \"><span style=\"background-color: rgb(255, 255, 0);\">Full Judgment&nbsp;</span></h4><h4 style=\"text-align: justify; \">IN THE HIGH COURT OF KARNATAKA AT BENGALURU&nbsp;</h4><h4 style=\"text-align: justify; \">Leo John vs Eugenia Preethi&nbsp;</h4><h4 style=\"text-align: justify; \">Miscellaneous First Appeal 6563 of 2018 (FC) and MFA.7501 OF 2018 (FC) decided on 20 January 2021. Judgment Link: <a href=\"https://karnatakajudiciary.kar.nic.in/noticeBoard/mfa-6563-2018.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/noticeBoard/mfa-6563-2018.pdf&nbsp;&nbsp;</a></h4><h4 style=\"text-align: justify; \">Justice B.V.Nagarathna and Justice M.G.Uma&nbsp;</h4><h4 style=\"text-align: justify; \">JUDGMENT: Though these appeals are listed for Admission, with the consent of learned counsel on both sides, they are heard finally.&nbsp;</h4><h4 style=\"text-align: justify; \">2. M.F.A. No.6563 of 2018 has been filed by the husband while M.F.A. No.7501 of 2018 has been filed by the wife, both assailing the judgment and decree passed in M.C. No.3116 of 2011 dated 5-7-2018 by the IV Additional Principal Judge, Family Court, Bengaluru.&nbsp;</h4><h4 style=\"text-align: justify; \">3. At this stage itself, it may be stated that the petition filed by the wife under Section 27(1)(e) and (d) read with Section 37 of the Special Marriage Act, 1954, (hereinafter referred to as ‘the Special Marriage Act’) as well the counter claim filed by the husband under Section 35 of the Special Marriage Act were both dismissed by the Family Court. Being aggrieved, the husband and wife are in appeal before this Court.&nbsp;</h4><h4 style=\"text-align: justify; \">4. We also state that the reason for dismissal of the petition filed by the wife as well as the counter claim filed by the husband before the Family Court was on the premise that the Special Marriage Act did not apply to the parties. Therefore, an interesting question arises in these appeals, namely, as to the law that is applicable to the parties so as to seek divorce and permanent alimony.&nbsp;</h4><h4 style=\"text-align: justify; \">5. Briefly stated the facts are, the parties herein got married under registration dated 19-10-2009 before the Registrar of Marriages, Mairie d’Oulgaret, Jawahar Nagar, Puducherry (Pondicherry)-605 010. It is also to be noted that, the parties thereafter registered their marriage?which was also solemnised at St. Andrew’s Church, Reddiarpalayam at Puducherry which took place on 19-10-2009?before the Registrar of Marriages, Puducherry-605 010 on 21-10-2009. The said marriage was as per Christian rites and customs. It is stated that, the wife was living in Bengaluru since June 2003. She studied law at Bengaluru and enrolled as an Advocate in 5 Karnataka Bar Council, Bengaluru, on 3-4-2009. After marriage, the couple lived in Puducherry for a few months. There were certain differences between the parties and hence, the wife filed the petition under the provisions of the Special Marriage Act seeking divorce in M.C. No.3116 of 2011.&nbsp;</h4><h4 style=\"text-align: justify; \">6. In response to the summons and Court notices issued by the Family Court, the husband appeared and filed statement of objections and denied the averments and allegations made by the wife, while at the same time making certain allegations against her. He also filed a counter claim seeking divorce under Section 35 of the Special Marriage Act. The wife filed rejoinder to the said counter claim before the Family Court. 7. Thus, on account of differences between them, the wife filed the petition and the husband filed the counter claim under the provisions of the Special Marriage Act making certain allegations against each other and seeking for a decree of divorce. The wife sought 6 permanent alimony of Rs.2.00 crore. Subsequently, she amended the petition to seek permanent alimony of Rs.10.00 crore.&nbsp;</h4><h4 style=\"text-align: justify; \">8. The wife examined herself as P.W.1, her father as P.W.2 and got marked 63 documents as Ex.P.1 to Ex.P.63. The husband examined himself as R.W.1 and got marked 47 documents as Ex.R.1 to Ex.R.47. After hearing the arguments of respective counsel, the Family Court raised the following points for its consideration: “i. Whether the provisions of Special Marriage Act are applicable to the parties to this petition? ii. Whether petitioner proves that the respondent treated her with cruelty? iii. Whether the petitioner proves that the respondent has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner 7 cannot reasonably be expected to live with the respondent? iv. Whether the respondent proves that the petitioner treated him with cruelty, as averred in the counter claim? v. Whether the respondent proves that the petitioner deserted him for a continuous period of 2 years or more, immediately preceding the presentation of the petition, as averred in the counterclaim? vi. Whether the petitioner is entitled for permanent alimony? vii. Whether the respondent is entitled for damages, as claimed in the counterclaim? viii. What order?”&nbsp;</h4><h4 style=\"text-align: justify; \">9. The Family Court answered point Nos.1 to 3, 6 and 7 in the negative while point Nos.4 and 5 in the affirmative and ultimately, held that the petition filed by the wife as well as the counter claim filed by the husband under the provisions of the Special Marriage Act had to be 8 dismissed as the Special Marriage Act was not applicable to the parties. Hence, both husband and wife have preferred their respective appeals.&nbsp;</h4><h4 style=\"text-align: justify; \">10. We have heard Sri A. Ram Mohan, learned counsel for the wife, as well as Sri Nandish Patil, learned counsel for the husband, and perused the material on record as well as the original record.&nbsp;</h4><h4 style=\"text-align: justify; \">11. Sri A. Ram Mohan, learned counsel appearing for the wife, submitted that in view of the dismissal of the petition filed by the wife under the Special Marriage Act, an application was filed in this appeal seeking amendment of the petition invoking, inter alia, provisions of Article 242 of the French Civil Code. The said application was allowed by order dated 7-2-2020. Therefore, if this Court is also of the opinion that the provisions of the Special Marriage Act are not applicable to the case, then the matter could be considered under Article 242 or any other relevant Articles of the French Civil Code. He submitted that the parties are originally from Puducherry, they are descendants of 9 persons, who were governed by the French Civil Code and in that regard, it could be stated that they are renouncants, i.e. persons who renounced their personal law so as to embrace French Law. Therefore, the parties herein being descendants of renouncants are governed by the French Civil Code insofar as their marriage and divorce are concerned. Since the application for amendment filed by the wife has been allowed by this Court, the matter could be considered under the provisions of Article 242 or any other appropriate Article of the French Civil Code. In that regard, learned counsel for the wife drew our attention to Ex.P.35 which is the original Certificate of Marriage under the provisions of the French Civil Code. Learned counsel for the wife further submitted that this Court may consider the matter under the provisions of the French Civil Code and also grant divorce to the parties as well as permanent alimony to the wife by setting aside or modifying the judgment and decree of the Family Court.&nbsp;</h4><h4 style=\"text-align: justify; \">12. Per contra, learned counsel for the husband, Sri. Nandish Patil submitted that, no doubt, as per Ex.P.35, the marriage between the parties has not taken place under the provisions of the Indian Christian Marriage Act, 1872, nor under the provisions of the Special Marriage Act. Since the parties are Christians by faith, application has been filed seeking consideration of the divorce petition under the provisions of Divorce Act, 1869. The said application has also been allowed. But, if this Court were to come to a conclusion that the French Civil Code would apply to the parties, then under the said Code, divorce could be granted under Article 245-1 which is in the nature of mutual consent divorce and the parties may not have any objection to the same as both the parties have sought for divorce in the instant case. He also submitted that appropriate divorce law applicable to the parties for seeking divorce may be applied in the instant case. The prayer sought by the wife seeking permanent alimony has been rejected and therefore, this Court may grant only divorce to the parties.&nbsp;</h4><h4 style=\"text-align: justify; \">13. By way of reply, learned counsel for the wife submitted that if this Court is to ultimately grant the relief of divorce to the parties under the provisions of French Civil Code, the wife cannot be left without remedy of permanent alimony and therefore, suitable orders may be made for grant of permanent alimony either before this Court or remand the matter for that purpose, so that, the additional evidence could be let in by the parties and there could be determination of permanent alimony payable to the wife. In that regard, it is also brought to our notice that recently the Hon’ble Supreme Court in the case of Rajnesh vs. Neha and another, in Criminal Appeal No.730 of 2020 dated 4-11-2020 (Arising out of SLP (Crl.) No. 9503 of 2018) has considered comprehensively the right of parties to seek permanent alimony and for the aid and assistance of the Court, the details of the Affidavit of Assets and Liabilities to be filed by the parties have been enunciated and therefore, the same may be applicable in this case also by way of analogy.&nbsp;</h4><h4 style=\"text-align: justify; \">14. Learned counsel for the husband did not have any objection for the matter being remanded on the question of payment of permanent alimony to the wife. Learned counsel for the wife was quick to urge that, even prior to the determination of the quantum of permanent alimony to be made by the Family Court, in the event of matter being remanded, the husband may be directed to pay a sum of Rs.50.00 lakh as initial permanent alimony, subject to further determination by the Family Court. This submission was resisted by the learned counsel for the husband, but ultimately, on instructions from his client, he submitted that a sum of Rs.25.00 lakh shall be paid to the wife as an initial payment. This is subject to liberty being reserved to the wife to seek additional amount by way of permanent alimony and also right being reserved with the husband to resist the claim for permanent alimony to be made before the Family Court.&nbsp;</h4><h4 style=\"text-align: justify; \">15. Submissions of learned counsel for the respective parties as recorded above are placed on record.&nbsp;</h4><h4 style=\"text-align: justify; \">16. In the circumstances, the following points would arise for our consideration in these appeals: “(i) Whether the Family Court was justified in dismissing the petition as well as the counter claim filed under the Special Marriage Act? (ii) If answer to point No.1 is in the affirmative, then, whether the parties are entitled to divorce under the French Civil Code? (iii) What orders to be made in these appeals?”&nbsp;</h4><h4 style=\"text-align: justify; \">17. It is not in dispute that the parties were married on 19-10-2009 before the Registrar of Marriages, Mairie d’Oulgaret, Jawahar Nagar, Puducherry (Pondicherry)-605 010. Ex.P.35 has been produced in that regard by the wife. On perusal of the same, it would prove that the Oulgaret Registrar issued the Marriage Certificate stating that Leo John (husband) and Eugenia Preethi (wife) were married before the Registrar of Oulgaret Municipality 14 on 19-10-2009. Parties have no children. On a reading of Ex.P.35, it would indicate that the said marriage is not one solemnised under the provisions of Special Marriage Act or under the Indian Christian Marriage Act, 1872. Although, on 19-10-2009, the parties were also married as per the Christian rites and customs at St. Andrew’s Church, Reddiarpalayam, Puducherry, and the said marriage was registered on 21-10-2009, no such documentary evidence is produced in that regard except Ex.P.1, which is a wedding invitation card. In the circumstances, we consider Ex.P.35 as the document which proves that the parties were married on 19-10-2009. In support of Ex.P.35, learned counsel for the wife has produced a copy of the document titled “DEMANDE DE PUBLICATION DE BAN” which also shows that the date of marriage is 19-10- 2009 at 12:00 noon before the Registrar of Marriages, Mairie d’Oulgaret, Jawahar Nagar, Puducherry. The said Certificate has been issued by the Registrar, Births and Deaths, Oulgaret Municipality, Pondicherry. The same is also signed by both the parties.&nbsp;&nbsp;</h4><h4 style=\"text-align: justify; \">18. Another document is extract of Register of Marriage which has been issued by the Oulgaret Municipality which is in French and translation of which has also been provided, which states, on 19-10-2009 at 12:15 p.m., the parties appeared before the Registrar of Marriages wanting to be married and to be pronounced in law that they are united in marriage, in the presence of witnesses. The marriage was solemnised and a certified copy of the same has been issued. Thus, it has been established in this case that the parties were married under the French Civil Code.&nbsp;</h4><h4 style=\"text-align: justify; \">19. The question that arises is, whether, the Special Marriage Act would apply to the parties or the French Civil Code would apply for the purpose of seeking divorce. As noted above, both the petition as well the counter claim filed under the provisions of the Special Marriage Act were rejected by the Family Court by holding that the Special Marriage Act does not apply to the parties.&nbsp;</h4><h4 style=\"text-align: justify; \">20. In the above context, we heard learned counsel for the respective parties on the law applicable to the parties herein in order to seek the relief of divorce. During course of submission, a judgment of the Madras High Court in the case of M. Kadirvelu and others vs. G. Santhanalakshmi and others (A.S. No.40 of 2001) and C.M.P. No.4748 of 2001 decided on 15-4-2016, reported in (2016) 4 Mad.LJ 562 was brought to our notice. The said judgment is authored by His Lordship, V. Ramasubramanian J., now Judge of the Hon’ble Supreme Court, who has traced the history of laws applicable to the parties in that case and the question whether Hindu Succession Act, 1956, was applicable to the parties therein was considered. Relevant portions of the said judgment i.e. paragraph Nos.24 to 42 read as under:&nbsp;</h4><h4 style=\"text-align: justify; \">“24. It appears that by Arrete of the Governor dated 06.4.1818, the French Government made it mandatory for the Courts to recognise established customs of the local people within the French Territory. Therefore, when the French Code Civil was made applicable by a 17 resolution dated 16.01.1819 to the inhabitants of the French Settlement in Pondicherry, Karaikal, Mahe and Yanam, a saving clause was inserted to enable the Hindus, Muslims and Christians inhabitants of these settlements to be governed by the usages and customs of their respective races.&nbsp;</h4><h4 style=\"text-align: justify; \">25. It appears that thereafter, a local ordinance was passed on 30.10.1827 by the local Government, constituting a Consultative Committee known as \"Comite Consultatif De La Jurisprudence Indianne\" with the localites to study the local customs. This Committee was to enlighten the Courts on the position of Hindu Law in customary matters. According to a scholarly article written by one Mr.Ramabathiran, a retired District Judge, this Committee comprised of 9 elderly Hindus drawn from various castes. 2 out of these 9 were Brahmins, 2 were Vellalars, 1 was a Kavarai, 1 was a Desaye, 1 Berger, 1 Komuti and 1 Chetty.&nbsp;</h4><h4 style=\"text-align: justify; \">26. But, the French Regime always wanted the localite to be assimilated into the French way of life. Therefore, these French Settlements in 18 India were endowed with a Deputy to the French Chambre and a Senator to the French Senat towards the local reforms council known as \"Consueilcolonaial\" was established. Another Council known as \"Conseilslocaux\" was also established. Members of these 2 Councils were to be elected through Universal Manhood Franchise by two lists of voters, one comprising of native Indians and another comprising of the Europeans and their descendants.&nbsp;</h4><h4 style=\"text-align: justify; \">27. The colonial council was replaced by a general council elected by universal adult franchise and invested with extended powers. (Decree of 25th January 1879). Ten communes were created by the decree of 12th March 1880. The establishment of Pondicherry numbered four of them and that of Karaikal three. The municipal councils were elected by universal franchise. However, as for the elections to the general council, the electors were registered on two lists, one for the Europeans and the descendants of the Europeans and the other for Indians. The decree of 24th June 1880 promulgated in the colony a number of provisions of the Civil Code. Though 19 exemptions were granted to Hindus and Muslims, there was considerable unrest in Pondicherry where the wind of revolt was beginning to blow. This was followed by the decree of 1881, by which, Indians could renounce their personal status.&nbsp;</h4><h4 style=\"text-align: justify; \">28. With a view to enable the local population to renounce their personal laws and to adopt the French Code Civil, a Regulation was passed on 21.9.1881. By this Regulation, an option was given to the native Indians to renounce their personal status. Such a renunciation was to be effected by way of a declaration in the office of the Mayor of the locality. Incentives were also offered to people, who renounce their personal status. These incentives were in the form of political rights and the opportunities thrown up for an employment in the Government. According to Author Claude Markovits (A History of Modern India 1480- 1950), people professing Christianity and people belonging to lower castes, were eager to make use of this opportunity. These persons were actually given a term namely \"renouncants\". These renouncants are governed by the French Code Civil in matters relating to marriage, divorce and family affairs. The 3 major enactments, namely, The Hindu Succession Act, Hindu Marriages Act and the Hindu Adoption and Maintenance Act are not applicable to renouncants in Pondicherry.&nbsp;</h4><h4 style=\"text-align: justify; \">29. The decree of 21 September 1881 enables the Indians, who so desired to renounce their personal status and to come under the purview of the French laws, with the objective of ‘facilitating the progressive assimilation of natives’ and of contributing to ‘the uplift of the pariah by fraternity’. These measures, which aimed at ethnic (or cultural), not only political, assimilation marked the beginning of the process of absorption.&nbsp;</h4><h4 style=\"text-align: justify; \">30. One of the important steps taken in this direction was to give French Indians the right of ‘Universal Manhood Franchise’ and towards that end, the French counters in India were endowed with a Deputy, a Senator, a General council, Local councils and Municipalities. In addition, native Indians were given the right to representation, association and organisation. Culturally, those Indians, who so desired, were invited to renounce their personal status (hence become renouncants) and place themselves under the authority of the French Civil Code.&nbsp;</h4><h4 style=\"text-align: justify; \">31. After India attained Independence, an agreement was signed in October 1954 between India and France for the defacto transfer of the French Territories, including Pondicherry in India. A Treaty of Cession was signed on 28.5.1956. The Treaty was ratified by the French Parliament in 1962. On 16.8.1962, both countries exchanged Instrument of Ratification. Consequently, de jure transfer got effected and Pondicherry, together with the enclaves of Karaikal, Mahe and Yanam became the Union Territory of Pondicherry from 01.7.1963. In the meantime, Pondicherry (Administration) Act, 1962, was passed by the Parliament, to provide for the administration of Pondicherry and matters connected therewith. Under Section 4(1) of the Pondicherry (Administration) Act, 1962, all laws in force immediately before the appointed date in the former French Establishments were directed to continue to be in force, until 22 amended or repealed by a competent legislature. 16th day of August, 1962 was made as the appointed date.&nbsp;</h4><h4 style=\"text-align: justify; \">32. Under Section 4(2) of the Pondicherry (Administration) Act, the Central Government was empowered by order to make such adoptions and modifications, for the purpose of facilitating the application of any law in relation to the administration of Pondicherry and for the purpose of bringing the provisions of any such law into accord with the provisions of the Constitution. But, the Central Government was to pass such an order within three years from the appointed date. Section 8 of the Act empowers the Central Government to issue notifications extending any enactment which is in force in a State, to Pondicherry with such restrictions and modifications as it deems fit.&nbsp;</h4><h4 style=\"text-align: justify; \">33. Thereafter, the Pondicherry (Laws) Regulation, 1963, was issued by the President in exercise of the powers conferred by Article 240 of the Constitution, with a view to extend certain laws to the Union Territory of Pondicherry. Section 3 of the said Regulation declared that the Acts as they are generally in 23 force in the territories to which they extend, shall also extend to and come into force in Pondicherry on the 1st day of October 1963, subject to the modifications specified in the First Schedule. The First Schedule to the Regulation contained a lot of enactments. The Hindu Succession Act, 1956 is one of the Parliamentary enactments included in the First Schedule to the Regulation of the year 1963. But, as seen from the First Schedule, the Hindu Succession Act, 1956 was extended to Pondicherry and it came into force in Pondicherry on the 1st day of October 1963, subject to one modification. The modification was that a separate Sub-Section, namely SubSection (2A) was inserted under Section 2 of the Hindu Succession Act, 1956. This new SubSection reads as follows: \"Section 2(2A): Notwithstanding anything contained in Sub-Section (1), nothing contained in this Act shall apply to the renouncants of the Union Territory of Pondicherry.\"&nbsp;</h4><h4 style=\"text-align: justify; \">34. Therefore, it is clear that as per Section 3 read with the First Schedule to the Pondicherry 24 (Laws) Regulation, 1963, the provisions of the Hindu Succession Act, 1956, were extended to the inhabitants of the Union Territory of Pondicherry, subject to one restriction namely that in so far as renouncants are concerned, the Hindu Succession Act would not have any application.&nbsp;</h4><h4 style=\"text-align: justify; \">35. In the year 1968, a second exercise of a similar nature was undertaken by the Parliament and an Act known as the Pondicherry (Extension of Laws) Act, 1968 was passed. Under Section 3(1) of the said Act, the Parliament extended the provisions of the Acts specified in Parts I and II of the Schedule to the Union Territory of Pondicherry, subject to the modifications specified in the Schedule. Parts I and II of the Schedule to the 1968 Act covered those Acts, which are not covered by the Regulation of the year 1963. While the Special Marriage Act, 1954, the Hindu Marriage Act, 1955 and the Hindu Succession Act, 1956, were covered by the Regulation of the year 1963, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956 were covered by the 25 1968 Act. Consequently, a provision, which is similar to Sub-Section (2A) that was inserted under Section 2 of the Hindu Succession Act, 1956 was also incorporated under Sections 3 and 2 respectively of the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956.&nbsp;</h4><h4 style=\"text-align: justify; \">36. The resultant position is that by virtue of the Regulation of the year 1963 and the Act of the year 1968, the provisions of what we may call as the Hindu Code, namely the Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956, would generally apply to the inhabitants of Pondicherry, except those, who are renouncants of the Union Territory of Pondicherry.&nbsp;</h4><h4 style=\"text-align: justify; \">37. But, unfortunately neither the 1963 Regulation nor the 1968 Act defined the expression \"renouncants\". Therefore, the question as to who a renouncant is, has often baffled Courts.&nbsp;&nbsp;</h4><h4 style=\"text-align: justify; \">38. The normal English word \"renounce\" is defined by Merriam-Webster Dictionary to mean \"to give up, refuse or resign or to refuse to follow, to refuse to obey, etc.” While these meanings are given by the said dictionary to the word \"renounce\", when used as a transitive verb, a different set of meanings is assigned to the same word when used as intransitive verb. Since we are not concerned here with the meaning of the English word \"renounce\", we need not take note of other meanings.&nbsp;</h4><h4 style=\"text-align: justify; \">39. But, what is important to note is that according to the Merriam-Webster Dictionary, the English word \"renounce\" originated from the Anglo-French word \"renuncer\" and from the Latin word \"renuntiare\".&nbsp;</h4><h4 style=\"text-align: justify; \">40. As we have seen earlier, the French Code Civil was made applicable to the inhabitants of the French Settlements of Pondicherry, Karaikal, Mahe and Yanam by the resolution dated 6.1.1819. But, this resolution contained a saving clause. By a subsequent resolution dated 24.4.1880, provisions relating to registration of births and deaths and performance of marriages were regulated. Even 27 this resolution contained a saving clause, making it optional to the Indians to follow their own customs. It appears that a further option to the Indians to switch over to the French way of life was given under another resolution dated 21.9.1881. By this option, the inhabitants were allowed to renounce their Personal Law and espouse the French Law. People, who availed this opportunity and exercised the option to renounce their Personal Laws, emerging out of customary rights and practices, were called renouncants.&nbsp;</h4><h4 style=\"text-align: justify; \">41. It is a linguistic paradox that the descendants of the renouncants inherited the consequence of renunciation by their forefathers. Mr. Ramabathiran cites in his article, 3 decisions, which recognised the consequence of such renunciation. One was a judgment dated 12.11.1870 by the then Court Appeal at Pondicherry, which held valid the recourse by Muslims to the freedom of guardianship as organised by the French Code Civil. The second was the case of a Hindu widow, who adopted a son to herself. The adoption was held valid by the Privy Council in 28 C.S. Nataraja Pillai v. C.S. Subbaraya Chettiar [AIR 1949 PC 24].&nbsp;</h4><h4 style=\"text-align: justify; \">42. Therefore, persons, who exercised the option to renounce their customary laws and adopted the French Code Civil, are not governed by the provisions of Hindu Succession Act, 1956. But, it must be remembered that by its very nature, the saving clause applies only to persons, who are inhabitants at the time when the French Code Civil was extended. Persons, who are descendants of those inhabitants, are also entitled to the benefit. But, persons, who became inhabitants of Pondicherry after the application of the French Code Civil, are not entitled to claim that they are renouncants.”&nbsp;</h4><h4 style=\"text-align: justify; \"><font color=\"#9c0000\">21. On reading of the same, the following points would emerge:&nbsp;</font></h4><h4 style=\"text-align: justify; \"><font color=\"#9c0000\">(a) That the French Government made applicable the French Civil Code by means of resolution dated 21/09/1819 to the inhabitants of French settlements including Pondicherry. Option was given to the native Indians to renounce their personal status and to accept the French Civil Code. They were called renouncants and such persons were governed by the French Civil Code in matters relating to marriage, divorce and family affairs. The object of enforcement of the French Civil Code was to enforce the process of absorption and the renouncants came under the authority of the French Civil Code.&nbsp;</font></h4><h4 style=\"text-align: justify; \"><font color=\"#9c0000\">(b) With Independence of India from colonial rule, an agreement was signed between India and France for the de facto transfer of French territories including Pondicherry to India. A treaty of Cession and the instrument of ratification came into existence and the territories of Karaikal, Mahe and Yanam became the Union Territories of Pondicherry from 01/07/1963.&nbsp;</font></h4><h4 style=\"text-align: justify; \"><font color=\"#9c0000\">(c) In the interregnum, the Indian Parliament passed Pondicherry (Administration) Act, 1962. Under Section 4(1) of the said Act, all laws in force immediately before the appointed date i.e., 16/08/1962 in the former French establishments were directed to continue to be in force, until amended or repealed by a competent legislature. 30&nbsp;</font></h4><h4 style=\"text-align: justify; \"><font color=\"#9c0000\">(d) Under Section 4(2) of the said Act, the Central Government was empowered by an order to make such adoptions and modifications for the purpose of facilitating the application of any law in relation to the administration of Pondicherry and for the purpose of bringing the provisions of any such law in consonance with Constitution of India.&nbsp;</font></h4><h4 style=\"text-align: justify; \"><font color=\"#9c0000\">(e) Section 8 of the said Act, empowers the Central Government to issue notifications extending any enactment which was in force in the State of Pondicherry with such restrictions and modifications as it deems fit.&nbsp;</font></h4><h4 style=\"text-align: justify; \"><font color=\"#9c0000\">(f) Subsequently, Pondicherry (Laws) Regulation, 1963 was issued by the President in exercise of the powers conferred under Article 240 of the Constitution of India, with a view to extend certain laws to the Union Territory of Pondicherry.&nbsp;</font></h4><h4 style=\"text-align: justify; \"><font color=\"#9c0000\">(g) Section 3 of the said Regulation declared that the Acts as they are generally in force in the territories to 31 which they extend, shall also extend to and come into force in Pondicherry on 01/10/1963 subject to modification specified in the First Schedule.&nbsp;</font></h4><h4 style=\"text-align: justify; \"><font color=\"#9c0000\">(h) The Special Marriage Act, 1954 was made applicable to Pondicherry by Regulation 7 of 1963 (Section 3 and Schedule I)&nbsp;</font></h4><h4 style=\"text-align: justify; \"><font color=\"#9c0000\">(i) However, this did not make any difference with regard to the applicability of French Civil Code to renouncants.&nbsp;</font></h4><h4 style=\"text-align: justify; \"><font color=\"#9c0000\">(j) Subsequently, in the year 1968, the Parliament enacted Pondicherry (Extension of Laws) 1968 in which the provisions of certain Act specified in parts I and II of Schedule were extended to the Union Territory of Pondicherry.&nbsp;</font></h4><h4 style=\"text-align: justify; \"><font color=\"#9c0000\">(k) While the Special Marriage Act, 1954, Hindu Marriage Act, 1955 and the Hindu Succession Act, 1956 were covered by Regulation of 1963, Hindu Minority and Guardianship Act, 1956 and Hindu Adoption and 32 Maintenance Act, 1956 were covered by 1968 Act. Consequently, provisions was enacted as sub Section (2A) under Section 2 of the Hindu Succession Act, 1956 and Sections 3 and 2 respectively under Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956.&nbsp;</font></h4><h4 style=\"text-align: justify; \"><font color=\"#9c0000\">(l) In fact, the Indian Christian Marriage Act, 1872 was made applicable to the territory of Pondicherry, but the same did not apply to renouncants of Union Territory of Pondicherry and hence, by amendment a proviso was added to Section 1 of the Indian Christian Marriage Act, 1872 to the effect that the said Act would not apply to renouncants of Union territory of Pondicherry.&nbsp;</font></h4><h4 style=\"text-align: justify; \"><font color=\"#9c0000\">(m) Therefore, neither the Special Marriage Act, 1954 nor the Indian Christian Marriage Act, 1872 would apply to renouncants.&nbsp;</font></h4><h4 style=\"text-align: justify; \">22. Thus, the sum and substance is that, those persons who are known as renouncants at their option adopted the French Civil Code and are governed by the provisions of the French Civil Code. That is how, while considering the case of the parties in the aforesaid decision, whether the provisions of the Hindu Succession Act was applicable to them, the Madras High Court considering the fact that, Parliament had enacted the Pondicherry (Laws) Regulation, 1963, and the Pondicherry (Extension of Laws) Act, 1968. It is only when there is specific mention in the Schedule that the provisions of Hindu Succession Act or any other Personal Law is applicable, the same would be then applicable in the erstwhile French settlements including Pondicherry (Puducherry). But, on the contrary, by the said enactment, if any law such as the Hindu Succession Act (or any other personal Law) would not be made applicable, or is excluded from the Schedule to the said enactment, then a corresponding amendment has been made by way of State amendment to that particular enactment. This is evident on a reading of Section 2(2A) to the Hindu Succession Act, 1956. Similarly, Section 2(2A) has been added to Hindu Minority and Guardianship Act, 1956, and Section 2(2A) has been added to the Hindu Marriages Act, 1955 by way of State amendments, which have been made under the provisions of Regulation 7 of 1963 and Section 2 of the Schedule thereto, which would clearly indicate that the Parliament enabled the State legislature to make the amendment to the respective Personal Laws, whether applicable to the Hindus or Mohammedans, by which, there is a categorical exclusion of the Personal Laws as applicable in the rest of India to the Union Territories of Pondicherry comprising, inter alia, of Karaikal, Mahe and Yanam. The resulted position is that, the French Civil Code would continue to apply to those persons who are known as renouncants, including the descendants of renouncants irrespective of where they presently reside and other Personal Laws are not applicable to them.&nbsp;</h4><h4 style=\"text-align: justify; \"><font color=\"#ce0000\">23. In view of the aforesaid discussion, it is held that neither the Indian Christian Marriage Act, 1872 nor the Special Marriage Act, 1954 would apply to the parties in the instant case, as they were married under French Civil Code. Hence, the same would apply with regard to divorce also.&nbsp;</font><br></h4><h4 style=\"text-align: justify; \">24. Therefore, in this case, we have to ascertain as to which provisions of the French Civil Code are applicable since we find that the marriage between the parties is neither solemnised under the provisions of the Special Marriage Act nor under the provisions of the Indian Christian Marriage Act, 1872. Although, the parties are Christians by faith, in view of the judgment of the Madras High Court and on a reading of enactments, referred to above, we find that Ex.P.35 is a proof of marriage between the parties under the French Civil Code. That being the position, they are entitled to claim divorce under the provisions of the French Civil Code.&nbsp;</h4><h4 style=\"text-align: justify; \">25. In that regard, we have ascertained about the applicable provisions of the French Civil Code and we find that the relevant Articles applicable for divorce are as under:&nbsp;</h4><h4 style=\"text-align: justify; \">\"Article 242: A petition for divorce may be presented by a spouse where facts which constitute a serious or renewed violation of the duties and obligations of marriage are ascribable to the other spouse and render unbearable the continuance of community life. x x x&nbsp;</h4><h4 style=\"text-align: justify; \">Article 244: (Act No.75-617 of 11 July 1975) A reconciliation of the spouses which occurred after the alleged facts prevents their being invoked as a ground for divorce. The judge shall then declare the petition inadmissible. A new petition may however be lodged by reason of facts occurred or discovered after the reconciliation, the former facts being then recallable in support of that new petition. Temporary continuance or renewal of community life must not be considered as a reconciliation where they result only from necessity or from an attempt at conciliation or from the needs of the education of the children.&nbsp;</h4><h4 style=\"text-align: justify; \">Article 245: (Act No.75-617 of 11 July 1975) The faults of the spouse who initiated the divorce do not prevent from considering 37 his or her application; they may, however, deprive the facts which the other spouse is reproached with of the seriousness that would make them aground for divorce. Those faults may be also invoked by the other spouse in support of a counter-petition in divorce. Where both applications are granted, divorce is decreed with the blame lying with both spouses. Even failing a counter-petition, divorce may be decreed with the blame lying with the two spouses where wrong ascribable to both appear in the hearings.&nbsp;</h4><h4 style=\"text-align: justify; \">Article 245-1: (Act No.75-617 of 11 July 1975; Act No.2004-439 of 26 May 2004) At the request of the spouses, the judge may restrict himself to establishing in the grounds of the judgment that there are facts constituting a cause for divorce, without having to state the wrongs and complaints of the parties.&nbsp;</h4><h4 style=\"text-align: justify; \">Article 246: Where a petition on the ground of irretrievable impairing of the marriage tie and a petition on the ground of fault are presented concurrently, the judge shall rule 38 first on the petition on the ground of fault. Where he dismisses the latter, the judge shall rule on the petition for divorce on the ground of irretrievable impairing of the marriage tie.”&nbsp;</h4><h4 style=\"text-align: justify; \">26. On a reading of the same, we find that Article 245-1 of the French Civil Code would apply in the instant case as we find that since both parties are seeking divorce, there are facts constituting a cause for divorce, without having to state the wrongs and complaints of the parties. This provision is akin to divorce by mutual consent as it obtains in other laws, such as Hindu Marriage Act, 1955 and Special Marriage Act, 1954. Therefore, invoking the provisions of Article 245-1 of the French Civil Code, we hold that marriage between the parties solemnised on 19- 10-2009 before the Registrar of Marriages, Mairie d’Oulgaret, Jawahar Nagar, Puducherry, is liable to be dissolved and is dissolved.&nbsp;</h4><h4 style=\"text-align: justify; \">27. Therefore, we hold that the Family Court was justified in dismissing the petition as well as the counter 39 claim filed under the Special Marriage Act. We answer point Nos.1 and 2 by holding that the French Civil Code would be applicable to the parties.&nbsp;</h4><h4 style=\"text-align: justify; \">28. The marriage between the parties stands dissolved on the basis of Article 245-1 of the French Civil Code. Therefore, the Registry is directed to draw up a decree under the provisions of Article 245-1 of the French Civil Code dissolving the marriage between the parties which was solemnised on 19-10-2009 before the Registrar of Marriages, Mairie d’Oulgaret, Jawahar Nagar, Puducherry.&nbsp;</h4><h4 style=\"text-align: justify; \">29. The matter does not end. This takes us to the next significant aspect, which is with regard to the claim of permanent alimony or maintenance by the wife. It is noted that the Family Court has rejected the claim for alimony. In that regard, we have already recorded the contentions of the respective parties. We have also referred to the recent judgment of the Hon’ble Supreme Court in the case of Rajnesh v. Neha (supra). Although, 40 the said judgment has been pronounced under Section 125 of the Code of Criminal Procedure, 1973 nevertheless, the Supreme Court has considered certain relevant laws under which claim for maintenance of permanent alimony could be made and has ultimately, formulated the manner in which permanent alimony of maintenance could be awarded to the parties by formulating Enclosure-I being Affidavit of Assets and Liabilities for Non-Agrarian Deponents and Enclosure-II containing Affidavit for Agrarian Deponents. The same could be applied in the instant case by way of analogy.&nbsp;</h4><h4 style=\"text-align: justify; \">30. In this context, reliance is also placed on Articles 278, 279, 270, 271 and 272 of the French Civil Code, which are extracted below, while determining the permanent alimony in the form of compensatory benefits, as the divorce has been granted in the instant case by mutual consent:&nbsp;</h4><h4 style=\"text-align: justify; \">\"Article 278 In case of divorce by mutual consent, the spouses shall fix the amount and terms of the compensatory benefit in the agreement which they submit to the judge for approval. They may lay down that the payment of the benefit will come to an end from the occurrence of a specific event. The benefit may be in the form of an annuity granted for a limited period. The judge, however, shall refuse to approve the agreement where it fixes unfairly the rights and obligations of the spouses.&nbsp;</h4><h4 style=\"text-align: justify; \">Article 279 An approved agreement is enforceable at law as is a judicial decision. It may be modified only by a new agreement between spouses, likewise submitted to approval. Spouses have nevertheless the power to provide in their agreement that each of them may, in case of an important change in the means or needs of either party, request the judge to revise the compensatory benefit. The provisions of Article 275, paragraphs 2 and 3, and of Articles 276-3 and 276-4 shall also apply, depending on whether the compensatory benefit takes the form of a capital or of a temporary or life annuity. Save as otherwise provided in the agreement, Articles 280 to 280-2 shall apply.&nbsp;</h4><h4 style=\"text-align: justify; \">Article 270 Divorce puts an end to the duty of support between spouses. One of the spouses may be compelled to pay the other a benefit intended to compensate, as far as possible, for the disparity that the breakdown of the marriage creates in the respective ways of living. This benefit shall be in the nature of a lump sum. It shall take the form of a capital the amount of which must be fixed by the judge.&nbsp;</h4><h4 style=\"text-align: justify; \">However, the judge may refuse to grant such a benefit where equity so demands, either taking into account the criteria set out in Article 271, or where the blame lies wholly upon the spouse who requests the advantage of this benefit, considering the particular circumstances of the breakdown.&nbsp;</h4><h4 style=\"text-align: justify; \">Article 271 A compensatory benefit must be fixed according to the needs of the spouse to whom it is paid and to the means of the other, account being taken of the situation at the time of divorce and of its evolution in a foreseeable future. For this purpose, the judge shall have regard in particular to: - the duration of the marriage; - the ages and states of health of the spouses; - their professional qualifications and occupations; - the consequences of the professional choices made by one spouse during the community life for educating the children and the time which must still be devoted to this education, or for favouring his or her spouse\'s career to the detriment of his or her own; - the estimated or foreseeable assets of the spouses, both in capital and income, after liquidation of the matrimonial regime; - their existing and foreseeable rights; - their respective situations as to retirement pensions.&nbsp;</h4><h4 style=\"text-align: justify; \">Article 272 In the context of the fixing of a compensatory benefit, by the judge or by the parties, or on the occasion of an application for revision, the parties shall provide the judge with declarations stating on their honour the accuracy of their means, incomes, assets and ways of living. (Act no 2005-102 of 11 Feb. 2005) When determining the needs and means, the judge may not have regard to the sums paid on the ground of compensation for industrial injuries and to the sums paid on the ground of the right to compensation of a disability.\"&nbsp;</h4><h4 style=\"text-align: justify; \">31. Therefore, on the question of award of permanent alimony to the wife, we remand the matter to the Family Court, reserving liberty to the parties to file their respective Affidavits on the basis of the judgment of the Hon’ble Supreme Court in the case of Rajnesh v. Neha (supra). If such Affidavits are filed, liberty is reserved for other party to file counter to the said Affidavit and the Family Court to arrive at the amount of permanent alimony to be awarded to the wife in the instant case.&nbsp;</h4><h4 style=\"text-align: justify; \">32. Since we have already recorded the statement of learned counsel for the husband made on instructions that, initially, a sum of Rs.25.00 lakh shall be paid to the wife, without prejudice to his right to resist any further claim to be made by the wife, we direct Mr. Leo John (husband) to pay the said amount to Mrs. Eugenia Preethi’s (wife’s) Bank Account within a period of one month from the date of receipt of a certified copy of this judgment or, in the alternative, to pay the said amount before the concerned Family Court.&nbsp;</h4><h4 style=\"text-align: justify; \">33. Since both parties are represented by their counsel, the parties are directed to appear before the 46 Family Court on 24-2-2021 without expecting any separate notice from the said Court.&nbsp;</h4><h4 style=\"text-align: justify; \">34. It is needless to observe that the Family Court shall first ensure that the sum of Rs.25.00 lakh has been paid to the wife by the husband and shall decide further claim of permanent alimony to be made by the wife in accordance with law by taking into consideration the objections, if any, by the husband to the said claim.&nbsp;</h4><h4 style=\"text-align: justify; \">35. Since, we have reserved liberty to the parties to file Affidavits, they could also let in oral and documentary evidence.&nbsp;</h4><h4 style=\"text-align: justify; \">36. The parties are at liberty to rely upon any other Article of French Civil Code in the matter of grant of permanent alimony and maintenance in the form of compensatory benefits.&nbsp;</h4><h4 style=\"text-align: justify; \">37. Since the matter is of the year 2011, the Family Court to dispose of the case as expeditiously as possible. The parties to co-operate for speedy disposal of the case.&nbsp;</h4><h4 style=\"text-align: justify; \">38. All contentions of both sides with regard to right of the wife to seek additional permanent alimony are kept open. Point No.3 is accordingly answered.&nbsp;</h4><h4 style=\"text-align: justify; \">39. In the result, the judgment and decree dated 5-7-2018 passed in M.C. No.3116 of 2011 on the file of the IV Additional Principal Judge, Family Court, Bengaluru as well as on the counter-claim is set-aside.&nbsp;</h4><h4 style=\"text-align: justify; \">40. The appeals are allowed-in-part and disposed in the aforesaid terms. Parties to bear their respective costs.&nbsp;</h4><h4 style=\"text-align: justify; \">Sd/- JUDGE Sd/- JUDGE kvk/ Bgn/- CT:am</h4><h4 style=\"text-align: justify; \"><br></h4><div style=\"text-align: justify;\"><br></div>', '08ae66cd2530ac183f3c063f68dc0562.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-20', 1, '', '', '2021-02-14 01:42:13', '2021-02-14 01:48:16');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(4630, 'BCv2jiXWOROEp5tKINBjKXB1z', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Presentation of undated cheque after three years from the date of the transaction by adding the date. Proceeding under Section 138 NI Act will be clearly barred by limitation. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">K.N. Raju Vs Manjunath T.V<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Criminal Appeal 302 of 2010 decided on 16 March 2018.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice K. Somashekar.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">&nbsp;</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">This appeal is directed against the judgment of acquittal dated 17.12.2009 passed by the XVI Addl. Chief Metropolitan Magistrate, Bangalore City in C.C.No.23063/2008 acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the NI Act’, for brevity). The same is challenged in this appeal urging various grounds</font><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">3. The factual matrix of the appeal are as under:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">The complainant is known to the accused as a family friend. The accused is running a travel agency business in Gandhinagar area and in the month of October 2004 the accused has approached the complainant and requested him to give hand loan of Rs.70,000/- to meet his domestic problems and family commitments and also to invest some amount in the business. The complainant on considering the request of the accused, gave an amount of Rs.70,000/-by way of cash to the accused on 29.10.2004. While receiving the said loan amount, the accused has also executed Loan agreement and he did give three cheques in favour of the complainant. The accused also promised the complainant that he would return the loan amount during the month of April 2008. As per the request made by the accused, the complainant presented the cheques for encashment. But the cheques in question were dishonoured with an endorsement Drawee signature differs/incomplete and insufficient funds. Subsequently, the complainant got issued a legal notice to the accused both under RPAD and under UCP. The notice sent to the accused by RPAD returned with an postal acknowledgment “No such person in the address”. But however, the notice sent through UCP was served on the accused. Despite receipt of legal notice, the accused neither replied nor paid any amount towards the amount mentioned in the aforesaid cheques in question.&nbsp; Hence, the complainant filed the complaint before the court below alleging that the accused has committed the offence punishable under Section 138 of the NI Act and to prosecute the case against the accused.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">4. Upon initiation of proceedings, the Trial Court took cognizance of the offence under Section 190 of Cr.P.C. and summons was issued to the accused. On service of summons the accused had put his appearance before the Trial Court through his counsel and participated in the proceedings. The copies of the prosecution papers were furnished to the accused and plea was recorded. The accusation was read over to the accused, to which he pleaded not guilty and claimed to be tried.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">5. Subsequently, in order to substantiate his contentions, the complainant examined himself as PW.1 and got marked 13 documents as per Ex.p1 to p13. Even Ex.P2(a), p3(a) and p4(a) were marked. On the defense part, the accused had examined himself as DW.1 and did not produce any documentary evidence. The statement under of the accused under Section 313 of Cr.P.C. was recorded. Subsequently, the Trial Court, on hearing the arguments advanced by the learned counsel for both the parties, had framed the points that arose for its consideration and answered point No.1 in the negative and point No.2 as per the final order and thereby acquitted the accused. It is this acquittal judgment which is called in question in the present appeal.</font><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">9. Ex.P12 is loan agreement. It contains the information that the accused and his wife and his son have jointly borrowed Rs.70,000/- from the complainant and inturn the accused and his family members issued the above referred cheques in favour of the complainant. But the amount mentioned in the aforesaid cheques, in all, comes to Rs.60,000/-. Therefore, the cumulative effect of these facts is that on the date of issuance of the cheques in question there was legally recoverable debt, in fact, in existence. Admittedly, Ex.P12 was executed on 29.10.2004 and the cheques in question bear the dates as 28.5.2008. Learned counsel for the respondent/accused pointed out that as on the date mentioned in the cheque the amount alleged to have been borrowed by the accused under Ex.P12 had already become time barred debt and hence, it cannot be said that as on the date the cheque bear, there was a legally enforceable debt was in existence and hence, the complaint filed by the complainant needs to be dismissed.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">10. On perusal of Ex.P12 it could be noticed that Ex.P12 stipulates 11 months for recovery of loan amounts. Considering the 11 months time as well as the assurance given by the accused in May 2008, the transaction was legal and there existed a recoverable debt. Therefore, the contention of the accused that the claim of the complainant is the time barred debt cannot be accepted. Hence, the Trial court observed that in Ex.P12 it is recited or stipulated that 11 months time has been given to the accused to pay the said amount.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">11. Article 21 of the Indian Limitation Act, the period of limitation for recovery of loan amount starts from the date on which the amount has been paid. Further, as per Section 18 of the Limitation Act, a fresh period of limitation shall be computed if any acknowledgement of debt has been executed by the borrower within the prescribed period of limitation i.e., within three years from the date of borrowing of the loan.&nbsp; Further Section 19 of the Limitation Act makes it clear that a fresh period of limitation shall be computed from the date of payment of some money towards the loan in question.</font><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">13. In so far as bouncing of cheques relating to initiation of the proceedings as under Section 200 Cr.P.C. punishable under Section 138 of NI Act that the limitation point is to be taken into consideration and so also the contention urged by the complainant. In the instant case, it should be noted that the complainant who examined himself as PW.1 specifically and categorically has admitted himself in his cross examination that the accused had given the undated cheques, and the validity of the loan agreement entered into between complainant and accused had lapsed which was for a period of three years. The complainant has categorically admitted that after the expiry of the loan agreement, he had presented the cheques mentioning the dates and upon bouncing of them had initiated the proceedings against the accused under Section 138 of NI Act. Therefore, on a careful reading of the said admission of PW.1 it makes it clear that when the cheques in question were issued by the accused the cheques were undated. Further according to the complaint himself the cheques in question have been issued to him on the date of execution of the agreement as per Ex.P12. Even this fact is mentioned in Ex.P12 which was executed on 29.10.2004. Therefore, these facts make it clear that the cheques in question have been presented for encashment after three years ten months from the date of issuance.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">15. The facts and circumstances of this case are identical to the decision stated supra and it is squarely applicable to the case on hand. In the aforesaid decision it was held that when the cheque was undated on the date of its issue and the same was presented for payment after 6 months from the date of issue then the Court had no other option but to acquit the accused. Keeping in view that position of law, the Trial Court rightly held that the complainant himself had admitted that the cheques in question were issued on 29.10.2004 and at the time of issuance the cheques were undated and the complainant had presented the said cheques for encashment in the year 2008. The said finding of the Trial court in the facts and circumstances of this case is just and proper and there is no need for this court to interfere with the said finding.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">16. For the above reasons, I find that there is no infirmity in the judgment of acquittal rendered by the Trial Court.&nbsp; Hence, I am of the opinion that there is no necessity to revisit the impugned judgment. As the appeal is&nbsp; devoid&nbsp; of&nbsp; merits,&nbsp; the&nbsp; same&nbsp; is&nbsp; dismissed.&nbsp; &nbsp;As&nbsp; a consequence, the judgment of acquittal dated 17.12.2009 passed by the XVI Addl. Chief Metropolitan Magistrate, Bangalore City in C.C.No.23063/2008 acquitting the respondent/accused for the offence punishable under Section 138 of N.I. Act, is hereby confirmed.</span></font></span></p>', 'ee4fdf1e74dbead93cfc3c711bc805db.jpeg', 'ecd0019af93d642e92915e8a5d7f3b3e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2024-06-12', 1, '', '', '2024-06-12 12:15:25', '2024-06-12 10:24:23'),
(2514, 'dMzbxrgt7ZYWX9hV8uEO7bqkD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Public procurement cannot be frustrated due to delay in disposing the appeals by the Appellate Authority. Karnataka High Court stresses the need for speedy disposal. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Transasia Bio-Medicals Ltd Vs Principal Secretary Department of Health and Family Welfare and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 23192 of 2022 decided on 12 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Brief facts that lead the petitioner to this Court in the\r\nsubject petition, as borne out from the pleadings, are as follows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n The petitioner is M/s Transasia Bio-Medicals Limited\r\n(hereinafter referred to as ‘the Company’ for short). The Company\r\nclaims to be incorporated under the provisions of the Companies\r\nAct, 1956 and is a leading diagnostic Company since 1985. The\r\nCompany further claims to be India’s largest In-vitro Diagnostic\r\nCompany offering solutions and products in Biochemistry,\r\nHematology, Coagulation, ESR, Immunology, Urinalysis and other\r\nincidental diagnostic tests. It is a Multi-National Company with the\r\nbrand name ‘Erba’ which has its footprints in several other\r\ncountries. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. A notice inviting tender was issued by the 2nd\r\nrespondent/Karnataka State Drug Logistics and Warehousing\r\nSociety which comes within the Department of Health and Family\r\nWelfare, Government of Karnataka for procurement of 1201\r\nnumbers of semi automated Bio-chemistry analyzer and 171 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">numbers of Fully Automated Biochemistry analyzer on 23-09-2020.\r\nIt is the allegation of the petitioner that certain technical\r\nspecifications that were sought in the tenders were not the\r\nstandard conditions at par with the requirement in the industry. The\r\nrequirement in the industry, according to the Company, was 200\r\ntests per hour but the tender notification has fixed 220 tests per\r\nhour which nowhere in India such machine is installed. It is averred\r\nthat there was a pre-bid meeting called and all the participants\r\nobjected to the condition of 220 tests per hour in a particular\r\nmachine. The Tender Scrutiny Committee did not accede to the\r\nobjections of the petitioner and went on with the scrutiny of tenders\r\nand declared the 3rd respondent to be the successful bidder.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. On the contract being awarded to the 3rd respondent,\r\nthe petitioner had immediately knocked at the doors of the\r\nAppellate Authority under Section 16 of the Karnataka\r\nTransparency in Public Procurements Act, 1999 (‘the Act’ for short).\r\nThough sub-section (3) of Section 16 mandates that appeal be\r\ndecided within 30 days of its filing, it was not taken up for its\r\nconsideration which led the petitioner to knock the doors of this <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court in Writ Petition No.5387 of 2021. This Court by its order\r\ndated 24-03-2021 disposed of the writ petition with a direction to\r\nthe Appellate Authority to dispose of the appeal. After the said\r\ndirection, the Appellate Authority has dismissed the appeal by its\r\norder dated 09-11-2022 which forms the challenge in the subject\r\npetition.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. The Appellate Authority is created under the statute\r\ni.e., KTPP Act. The powers and functions of the Appellate Authority\r\nare also ascribed under the Act i.e., in terms of Section 16 of the\r\nAct. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Sub-section (1) of Section 16 gives liberty to the aggrieved\r\ntenderer other than the Government to prefer an appeal before the\r\nAppellate Authority within 30 days from the date of receipt of the\r\norder i.e., issuance of work order. Discretion vested is 30 days\r\nmore for preferring the appeal on sufficient cause being shown.\r\nTherefore, the appeal has to be preferred within 60 days of\r\nissuance of work order. Sub-section (2) directs that the Appellate\r\nAuthority after giving opportunity of being heard would pass\r\nappropriate orders and sub-section (3) directs the Appellate\r\nAuthority to decide the appeal within 30 days. The rider is, as far as </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">possible. Therefore, the Appellate Authority shall endeavour to\r\nconclude the appeal within 30 days. The prescription under subsection (3) is that the oprescribed authority, shall as far as possible\r\ndispose of the appeal within 30 days. Thugh, it cannot but be held\r\nto be mandatory, the Appellate Authority should endeavour to\r\nconclude the appeal within a certain time frame, if not 30 days, a\r\ndefinite time frame. It is in public interest as well, that the\r\nAppellate Authority decides the appeal within a time frame.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16. This Court is not oblivious to the fact that the Appellate\r\nAuthority, would have manifold responsibilities and functions, to be\r\nperformed apart from deciding the appeal under the Act.\r\nTherefore, in public interest, the Appellate Authority shall\r\nhenceforth, endeavour to conclude the appeal at an outer limit of\r\n90 days, if not 30 days, as prescribed under the statute. Beyond 90\r\ndays, if the appeal is kept pending, it would be contrary to public\r\ninterest and the Authority shall record reasons in writing for not\r\nconcluding the appeal within an outer limit of 90 days. It is\r\nneedless to observe that the parties to the lis before the Appellate\r\nAuthority shall always cooperate with such proceedings.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. The case at hand forms a classic illustration, where public\r\ninterest has suffered due to the Appellate Authority keeping the\r\nappeal for its decision from 01-03-2021 up to 09-11-2022, for 21\r\nmonths contrary to the prescription in the statute for a disposal in\r\n30 days. Not for nothing that the statute prescribes that the appeal\r\nbe decided in 30 days of its filing. There can be no justification\r\nwhatsoever to keep the appeal pending for 630 days as against 30\r\ndays. The Appellate Authority appears to be swayed by the statute\r\ndepicting disposal of the appeal in 30 days to be as far as possible.\r\nThe words ‘as far as possible’ cannot be taken as ‘so far as\r\npossible’, so as to defeat the object of the statute qua limitation.\r\nSuch appeals filed within the time frame under Section 16(1) of the\r\nAct shall be decided under Section 16(3) of the Act, within 90 days\r\nfrom its filing. The Appellate Authority shall draw up and regulate\r\nthe procedure for such disposal by limiting the time for filing the\r\nobjections or the rejoinder to the objections that would be filed.\r\nCompliance with the aforesaid directions would be in public interest\r\nand public interest in any action of the State is paramount.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The Writ Petition is dismissed with costs of Rs.25,000/-\r\n(Rupees twenty five thousand only) payable by the\r\npetitioner to the Karnataka State Legal Services\r\nAuthority, within 12 weeks from the date of receipt of a\r\ncopy of this order and filing an acknowledgment thereto\r\nbefore the Registry of this Court. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4b256e49f06469320537bdb1388605d2.jpeg', '38f322d69836d0f0cf1a5a132f865694.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-03', 1, '', '', '2023-01-01 11:54:51', '2023-01-03 09:32:59'),
(461, 'tFBqP9D0Wpn913YTz7HEjDCX8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Consumer Protection Act 1986. Consumer forum has no jurisdiction to extend time beyond statutorily prescribed limit of 45 days to file response to complaint. Supreme Court. ', '<h4>M/s Daddy’s Builders Pvt. Ltd. & Another vs. Manisha Bhargava and Another<br></h4><h4>Special Leave to Appeal (Civil) No. 1240 of 2021, decided on 11 February 2021</h4><h4>Bench: Justice M.R. Shah and Justice Dr. Dhananjaya Y. Chandrachud</h4><h4>Author : Justice M.R Shah </h4><h4>Judgment Link -<a href=\"https://main.sci.gov.in/supremecourt/2021/809/809_2021_36_1501_26015_Judgement_11-Feb-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/809/809_2021_36_1501_26015_Judgement_11-Feb-2021.pdf</a></h4><h4><font color=\"#9c0000\">Issue involved:</font> Consumer Protection Act, 1986 – Section 13 (2) - Power of Consumer Fora to extend time beyond 45 days for filing response/written statement to complaint – Whether delay beyond 45 days is condonable?</h4><h4><span style=\"color: rgb(156, 0, 0); background-color: rgb(255, 255, 0);\">Held</span>: On facts, SLP Dismissed. Consumer Fora has no jurisdiction to extend time beyond statutorily prescribed limit of 45 days. Time limit of 45 days is mandatory and not merely directory.</h4><h4><font color=\"#9c0000\">Relevant paragraphs </font>1. Feeling aggrieved and dissatisfied with the impugned order dated 04.09.2020 passed by the National Consumer Disputes Redressal Commission, New Delhi (hereinafter referred to as the ‘National Commission’) in First Appeal No. 1999/2018, by which the National Commission has dismissed the said appeal confirming the order passed by the Karnataka State Consumer Disputes Redressal Commission (hereinafter referred to as the ‘State Commission’) dated 26.09.2018 rejecting the application filed by the petitioners herein seeking condonation of delay in filing the written version/written 2 statement to the consumer complaint, original respondent nos. 1 & 2-petitioners herein have preferred the present special leave petition. </h4><h4>2. By order dated 26.09.2018, the State Commission rejected the application filed by the petitioners herein seeking condonation of delay in filing the written statement/written version to the consumer complaint. It is not in dispute that the written version/written statement was filed beyond the prescribed period of limitation provided under the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’), i.e., beyond the period of 45 days. It is not in dispute that as per the provisions of the Act, the written version/written statement is required to be filed within 30 days and the same can be extended by a further period of 15 days. The order passed by the State Commission came to be confirmed by the National Commission. Hence, the present special leave petition. </h4><h4>3. Shri Ashish Choudhary, learned Advocate appearing on behalf of the petitioners has vehemently submitted that it is true that as per the decision of the Constitution Bench of this Court in the case of New India Assurance company Limited v. Hilli Multipurpose Cold Storage Private Limited, reported in (2020) 5 SCC 757, the District Forum has no power to extend the time to file the response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged under Section 13 of the Act. It is submitted that however as observed in paragraph 63, the said judgment shall be applicable prospectively 3 only. Therefore, it is the case on behalf of the petitioners that the aforesaid decision shall not be applicable retrospectively, and more particularly to the complaints filed before the said decision. It is submitted that in the present case the application for condition of delay came up for consideration before the State Commission on 26.09.2018 and on that date there was a judgment of this Court in the case of Reliance General Insurance Co. Ltd. v. M/s Mampee Timbers & Hardwares Pvt. Ltd. (Diary No. 2365 of 2017 decided on 10.02.2017) directing the consumer fora to accept the written statement beyond the stipulated time of 45 days in an appropriate case, on suitable terms, including the payment of costs and to proceed with the matter, keeping in view the fact that the judgment of this Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Private Limited, reported in (2015) 16 SCC 20 has been referred to a larger Bench. Therefore, it is the case on behalf of the petitioners that the State Commission ought to have condoned the delay in filing the written statement/written version to the consumer complaint. </h4><h4><font color=\"#ce0000\">4. Having heard learned counsel appearing on behalf of the petitioners and so far as the question whether the date on which the State Commission passed the order, then on that date, whether the State Commission has the power to condone the delay beyond 45 days for filing the written statement under Section 13 of the Act is concerned, as such, the said issue whether the State Commission has the power to condone the delay beyond 45 days is now not res  integra in view of the Constitution Bench decision of this Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Pvt. Ltd. reported in (2020) 5 SCC 757.</font><span style=\"color: rgb(206, 0, 0);\"> </span>However, it is submitted by the learned counsel appearing on behalf of the petitioners that as in paragraph 63 it is observed that the said judgment shall be applicable prospectively and therefore the said decision shall not be applicable to the complaint which was filed prior to the said judgment and/or the said decision shall not be applicable to the application for condonation of delay filed before the said decision. However, the aforesaid cannot be accepted. It is required to be noted that as per the decision of this Court in the case of J.J. Merchant v. Shrinath Chaturvedi, reported in (2002) 6 SCC 635, which was a three Judge Bench decision, consumer fora has no power to extend the time for filing a reply/written statement beyond the period prescribed under the Act. <font color=\"#ce0000\">However, thereafter, despite the above three Judge Bench decision, a contrary view was taken by a two Judge Bench and therefore the matter was referred to the five Judge Bench and the Constitution Bench has reiterated the view taken in the case of J.J.Merchant (supra) and has again reiterated that the consumer fora has no power and/or jurisdiction to accept the written statement beyond the statutory period prescribed under the Act, i.e., 45 days in all. However, it was found that in view of the order passed by this Court in Reliance General Insurance Co. Ltd. (supra) dated 10.02.2017, pending the decision of the larger Bench, in some of the cases, the State Commission might have condoned the delay in filing the written statement filed beyond the stipulated time of 45 days and all those orders condoning the delay and accepting the written statements shall not be affected, this Court observed in paragraph 63 that the decision of the Constitution Bench shall be applicable prospectively. We say so because one of us was a party to the said decision of the Constitution Bench. </font></h4><h4>5. Now so far as the reliance placed upon the order passed by this Court dated 10.02.2017 in the case of Reliance General Insurance Co. Ltd. (supra) is concerned, the same has been dealt with in detail by the National Commission by the impugned order while deciding the first appeal. As rightly observed by the National Commission, there was no mandate that in all the cases where the written statement was submitted beyond the stipulated period of 45 days, the delay must be condoned and the written statement must be taken on record. In order dated 10.02.2017, it is specifically mentioned that it will be open to the concerned fora to accept the written statement filed beyond the stipulated period of 45 days in an appropriate case, on suitable terms, including the payment of costs and to proceed with the matter. Therefore, ultimately, it was left to the concerned fora to accept the written statement beyond the stipulated period of 45 days in an appropriate case. As observed by the National Commission that despite sufficient time granted the written statement was not filed within the prescribed period of limitation. Therefore, the National Commission has considered the aspect of condonation of delay on merits also.<font color=\"#ce0000\"> In any case, in view of the earlier decision of this Court in the case of J.J. Merchant (supra) and the subsequent authoritative decision of the Constitution Bench of this Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020) 5 SCC 757, consumer fora has no jurisdiction and/or power to accept the written statement beyond the period of 45 days, we see no reason to interfere with the impugned order passed by the learned National Commission. </font></h4><h4>6. In view of the above and for the reasons stated hereinabove, the present special leave petition deserves to be dismissed and is accordingly dismissed.</h4><h4><span style=\"font-style: italic;\"><br></span></h4><h4><span style=\"font-style: italic;\">Compiled by Angad Kamat, Advocate, Bangalore.</span></h4><h4><br></h4>', '56879b9dd34c1cd07a35e7fb164d4d25.jpg', '8eac69da3cea2a9335a75323c5e1c984.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-11', 1, '', '', '2021-02-15 18:57:04', '2021-02-27 01:14:33'),
(462, 'epLfTG9LUvaxdcCVHPFwWnJlb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Property Law. Entries in the revenue records do not confer title to a property nor have any presumptive value on the title. They only enable the persons to pay the land revenue in respect of the land in question. Supreme Court', '<h4><span style=\"background-color: rgb(255, 255, 0);\"><i>Full Judgment (See para 5)</i></span></h4><h4>In the Supreme Court of India&nbsp;<br>Prahlad Pradhan v. Sonu Kumhar<br>Civil Appeal No. 5919 of 2011†, decided on October 16, 2019<br>Justice Indu Malhotra and Justice Krishna Murari&nbsp;<br>Reported in (2019) 10 SCC 259<br>INDU MALHOTRA, J.— The present dispute arises out of a civil suit filed by the respondents for a declaration that the sale deed dated 22-10-1973 executed by one Etwari Kumharin in favour of the appellants was void and illegal, and a further declaration of the respondents’ title over the suit property.<br>2. Briefly stated, the present civil appeal arises in the following factual matrix:<br>2.1. Radhanath Kumhar was the owner of agricultural land and a house in Mouza Nalita, P.S. Toklo (Singhbhum). Radhanath Kumhar died intestate, and his property devolved upon his legal heirs and descendants. The genealogy of Radhanath Kumhar’s family is set out hereinbelow for ready reference:<br>2.2. The present case pertains to Plot No. 614 admeasuring 35 decimals in Khata No. 145, Mouza Nalita, P.S. Toklo (Singhbhum) (hereinafter referred to as the “suit property”), which was a part of the estate of Radhanath Kumhar.<br>2.3. After Mangal Kumhar’s death, his widow Etwari Kumharin purported to sell the suit property for a consideration of Rs 1000 to the appellants vide a registered sale deed dated 22-10-1973.<br>2.4. Respondents 1 to 3 who are legal heirs of two sons of late Radhanath Kumhar i.e. Sonu and Anand filed Title Suit No. 14/1986 before the Court of Munsif at Chalibasa, Jharkhand against the appellants on the ground that the suit property was ancestral property, and Etwari Kumharin had no right to sell it. The respondent-plaintiffs herein impleaded the legal heirs of Mangal Kumhar and Etwari Kumharin i.e. daughters viz. Phuljhari and Babi, and grandchildren viz. Kamla and Rangu as pro forma defendants. The respondent-plaintiffs herein inter alia prayed for a declaration that the sale deed dated 22-10-1973 was void and illegal; declaration of title of the plaintiffs and pro forma defendants over the suit property, and confirmation of their possession over the suit property, or in the alternative, for recovery of possession from the appellants. Since Respondents 1 to 3 were minors at the time of filing the suit, the suit was filed through their next friend Sibu Kumhar. Respondent 2 is the brother of Sibu Kumhar, and Respondents 1 and 3 are the nephews of Sibu Kumhar. Sibu Kumar was subsequently discharged as next friend vide order dated 29-8-1989, after the respondent-plaintiffs herein attained the age of majority.<br>2.5. The trial court decreed the suit in favour of the respondent-plaintiffs herein vide judgment and decree dated 9-2-1990. It was held that the suit property was a part of the joint family property of the common ancestor Radhanath Kumhar. Since there was no partition of the properties owned by Radhanath Kumhar between his legal heirs, the widow of Mangal Kumhar had no right to sell a part of the ancestral property. Furthermore, Mangal Kumhar’s share in the joint family property was not specified, and hence, he could not be considered to be the exclusive owner of the suit property.<br>2.6. The trial court further held that upon Mangal Kumhar’s death, his widow Etwari Kumharin did not acquire any exclusive right, title or interest in the suit property, and was not competent to transfer the suit property in favour of the appellants vide sale deed dated 22-10-1973. It was further held that Etwari Kumharin was not a necessary party in the suit because after executing the sale deed dated 22-10-1973, she had no interest in the suit property. It was further held that the daughters of Mangal Kumhar and Etwari Kumharin had not executed the sale deed dated 22-10-1973, nor given any no objection for the sale.<br>2.7. The trial court passed a decree declaring the sale deed dated 22-10-1973 to be void and illegal, and confirmed the possession of the respondent-plaintiffs herein and the pro forma defendants over the suit property. It was further directed that if the respondent-plaintiffs herein and the pro forma defendants are found to have been dispossessed from the suit property during the pendency of the suit, they shall be at liberty to recover possession after getting the decree executed though process of the court.<br>2.8. Aggrieved by the aforesaid judgment and decree, the appellants filed Title Appeal No. 8/1990 before the Additional District Judge, Fast Track Court Vth, West Singhbhum at Chalibasa, Jharkhand. The appellate court dismissed the appeal vide judgment dated 19-5-2004. It was inter alia held that the appellants had failed to adduce any evidence to prove that the suit property was self-acquired property of Mangal Kumhar. As a consequence, Etwari Kumharin had no exclusive right over the suit property, and was not entitled to execute the sale deed in favour of the appellants. It was further held that the legal heirs of Mangal Kumhar i.e. his daughters and grandchildren, had supported the case of the respondent-plaintiffs herein.<br>2.9. Aggrieved by the aforesaid judgment, the appellants filed Second Appeal No. 378/2004 before the Jharkhand High Court. The High Court vide impugned judgment and order dated 28-4-20091 dismissed the second appeal on the ground that no substantial question of law had arisen for consideration.<br>3. Aggrieved by the judgment in the second appeal, the appellants have filed the present special leave petition. This Court vide order dated 22-7-20112, granted special leave to appeal.<br>4. The courts below have found on the basis of the evidence adduced by the parties, that the appellants had failed to prove that the suit property was the self-acquired property of Mangal Kumhar. The burden to prove that the suit property was the self-acquired property of Mangal Kumhar was on the Appellant purchasers. Reliance is placed on this Court’s judgment in Adiveppa v. Bhimappa3 wherein it was held that: (SCC p. 589, para 19)<br>“19. It is a settled principle of Hindu Law that there lies a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property. (See Mulla, Hindu Law, 22nd Edn. Article 23 “Presumption as to coparcenary and self-acquired property”, pp. 346 and 347.)”<br>The appellants have failed to discharge the burden to prove that the suit property was separate or self-acquired property of Mangal Kumhar.<br><font color=\"#ce0000\">5. The contention raised by the appellants is that since Mangal Kumhar was the recorded tenant in the suit property as per the Survey Settlement of 1964, the suit property was his self-acquired property. The said contention is legally misconceived since entries in the revenue records do not confer title to a property, nor do they have any presumptive value on the title. They only enable the person in whose favour mutation is recorded, to pay the land revenue in respect of the land in question.4 As a consequence, merely because Mangal Kumhar’s name was recorded in the Survey Settlement of 1964 as a recorded tenant in the suit property, it would not make him the sole and exclusive owner of the suit property.</font><br>6. The appellants have failed to adduce any evidence whatsoever, apart from the Survey Settlement of 1964 to establish that the suit property was the self-acquired property of Mangal Kumhar.<br>7. Since Mangal Kumhar did not have an exclusive right, title or interest in the suit property, his widow Etwari Kumharin was not legally competent to sell the suit property to the appellants, purporting to be the sole owner of the property. Reliance is placed on Eureka Builders v. Gulabchand5 wherein this Court held: (SCC pp. 75-76, paras 35-36)<br>“35. It is a settled principle of law that a person can only transfer to other person a right, title or interest in any tangible property which he is possessed of to transfer it for consideration or otherwise. In other words, whatever interest a person is possessed of in any tangible property, he can&nbsp; transfer only that interest to the other person and no other interest, which he himself does not possess in the tangible property.<br>36. So, once it is proved that on the date of transfer of any tangible property, the seller of the property did not have any subsisting right, title or interest over it, then a buyer of such property would not get any right, title and interest in the property purchased by him for consideration or otherwise. Such transfer would be an illegal and void transfer.”<br>8. It is pertinent to record that the other legal heirs of Mangal Kumhar i.e. his two daughters viz. Phuljhari and Babi, were not parties to the execution of the sale deed dated 22-10-1973. Etwari Kumharin was not entitled to execute the sale deed in question as the sole owner of the suit property. The two daughters of Mangal Kumhar were joined as pro forma defendants in the suit filed by the respondents herein. Summons were duly served upon the pro forma defendants. The pro forma defendants filed a common written statement wherein they have fully supported the case of the respondent-plaintiffs herein, and have prayed that the claims of the Plaintiffs are true, and that the suit is liable to be decreed. The said averments have been duly considered by both the trial court and the first appellate court, while decreeing the suit in favour of the respondent-plaintiffs herein.<br>9. The courts below have clearly held that the suit property was not the separate or self-acquired property of Mangal Kumhar. Furthermore, Etwari Kumharin had no exclusive right to execute the sale deed dated 22-10-1973 in favour of the appellants. The said sale deed is not legal or binding upon the respondent-plaintiffs herein and the pro forma defendants.<br>10. The non-joinder of Etwari Kumharin in the suit filed by the respondents would not be of any consequence, as Etwari Kumharin had no surviving interest in the suit property after the execution of the sale deed dated 22-10-1973.<br>11. The concurrent findings of the trial court and the first appellate court are based on a proper appreciation of the pleadings and evidence on record. The High Court held that no substantial question of law arose, and rightly dismissed1 the second appeal.<br>12. In light of the aforesaid discussion, the judgment and order dated 28-4-20091 passed by the High Court is confirmed, and the present civil appeal is dismissed. The decree dated 9-2-1990 passed by the trial court in Title Suit No. 14/1986 stands affirmed. All pending applications, if any, are accordingly disposed of. Ordered accordingly.<br>———<br>†<span style=\"white-space:pre\">	</span>Arising from the impugned Judgment and Order in Sochara Gwalin v. Sonu Kumhar (Jharkhand High Court, Ranchi Bench, SA No. 378 of 2004, dt. 28-4-2009)<br>1<span style=\"white-space:pre\">	</span>Sochara Gwalin v. Sonu Kumhar, Second Appeal No. 378 of 2004, order dated 28-4-2009 (Jhar)<br>2<span style=\"white-space:pre\">	</span>Prahlad Pradhan v. Sonu Kumhar, 2011 SCC OnLine SC 75<br>3<span style=\"white-space:pre\">	</span>Adiveppa v. Bhimappa, (2017) 9 SCC 586 : (2017) 4 SCC (Civ) 678<br>4<span style=\"white-space:pre\">	</span>Bhimabai Mahadeo Kambekar v. Arthur Import &amp; Export Co., (2019) 3 SCC 191 : (2019) 2 SCC (Civ) 21; Narasamma v. State of Karnataka, (2009) 5 SCC 591 : (2009) 2 SCC (Civ) 582; Balwant Singh v. Daulat Singh, (1997) 7 SCC 137; Sawarni v. Inder Kaur, (1996) 6 SCC 223<br>5<span style=\"white-space:pre\">	</span>Eureka Builders v. Gulabchand, (2018) 8 SCC 67 : (2018) 4 SCC (Civ) 9<br></h4><p><br></p>', '6c266a46dbd405603abf92a077a02bbd.png', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2019-10-16', 1, '', '', '2021-02-15 19:22:07', '2021-02-15 20:19:31');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(463, 'u5g6qMk44s5pyadcqX6910xuy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land acquisition. There cannot be presumption of acquisition. Burden is on the State to prove that the process of law was followed and the compensation paid. Supreme Court ', '<h4><span style=\"background-color: rgb(255, 255, 0);\"><i>Full Judgment (See para 13)</i></span><br>In the Supreme Court of India&nbsp;<br>D.B. Basnett v. Land Acquisition Officer&nbsp;<br>Civil Appeal No. 196 of 2011†, decided on March 2, 2020<br>Justice Sanjay Kishan Kaul and Justice K.M.Joseph&nbsp;<br>Reported (2020) 4 SCC 572.<br>Justice Sanjay Kishan Kaul — The Agriculture Department of the Government of Sikkim, Respondent 2 sought to acquire, in the year 1980, land measuring 8.36 ac, located in Dundung Block, Sang in East Sikkim for the purpose of building the Progeny Orchard Regional Centre. The land was recorded in two names — 1.29 ac in the name of the Maharaja of Sikkim and 7.07 ac in the name of Man Bahadur Basnett, father of the original appellant. The latter land is subject-matter of dispute in the present proceedings.<br>2. The land in question is partially fenced, with a farm, some barracks and office. Late Man Bahadur Basnett passed away in the year 1991 whereupon the property fell to the share of the appellant in the present proceedings (now represented by his two sons). It may be noticed that Man Bahadur Basnett was survived by seven (7) children, but there is no dispute inter se the siblings in respect of the claim of D.B. Basnett over the suit property.<br>3. It is the case of the late appellant that when he visited the suit property in March 2002, he found that the respondents had wrongly encroached and trespassed on the same, using it as an agricultural farm. He claims to have lived away from Gangtok earlier and thus, served a notice on 5-4-2002 under Section 80 of the Code of Civil Procedure, 1908 notifying them against the alleged trespass and seeking possession. There was no response to the same and, thus, the suit was filed before the Court of District Judge (E&amp;N), Gangtok, Sikkim, being Title Suit No. 6 of 2004 (renumbered) on 9-12-2002.<br>4. The sum and substance of the claim made was that the procedure envisaged under the Sikkim Land (Requisition and Acquisition) Act, 1977 (hereinafter referred to as “the said Act”) had not been invoked or followed. Suffice it to say that the process is similar to the Land Acquisition Act, 1894 (hereinafter referred to as “the 1894 Act”) i.e. notification required under Section 4 of the Act for acquisition of land, opportunity to interested persons to file claims under Section 5 of the Act and the determination of the amount of compensation under Section 7 of the Act. The plea raised was that no notice of acquisition was ever published, nor any process followed for the same.<br>5. Respondent 2 sought to raise a defence to the suit of the bar of limitation. It is their say that the Agriculture Department had followed due process while acquiring the land in 1980 and had paid compensation of Rs 62,645 to late Man Bahadur Basnett through the Land Revenue Department. Thus they were enjoying peaceful possession of the subject-matter property as a consequence thereof. The claim of the late appellant that rent was being paid to the Government was stated not to be in the knowledge of the Agriculture Department.<br>6. The trial court dismissed the suit vide judgment and order dated 31-10-2006, both on grounds of limitation as well as substantive merits. The consideration of merits was based on the fact that the original stamped receipts of payment of compensation had been taken note of in the record of proceedings, though the actual receipt was not available. The correspondence exchanged even inter-departmentally was stated to point to the compensation being paid, as also a letter which had been sent by late Man Bahadur Basnett, signifying his consent to transfer suit property upon payment of due compensation.<br>7. On appeal being filed and registered before the High Court of Sikkim, being RFA No. 2 of 2007, the same was examined on both issues and was dismissed on 29-5-2008. However, insofar as the aspect of limitation was concerned, the High Court disagreed with the findings of the trial court by relying upon Article 65 of the Limitation Act, 1963, which provided for a period of twelve (12) years in case of adverse possession. Such a case of adverse possession was opined to be difficult for the State Government to plead and in any case, on facts, had never been pleaded. It is also recorded that no notification under the said Act had been produced, nor was any record produced in that behalf. The actual signed and stamped receipts were also not placed on record. The inconsistent stand of the Government claiming that they had acquired the land while still collecting land revenue for the same was also noted. These aspects were sought to be balanced with the letter dated 20-3-1980, of late Man Bahadur Basnett, who had given his no objection to the acquisition if compensation was paid to him, and a letter dated 2-4-1980 of the Land Revenue Department forwarding the compensation to the District Collector for payment to late Man Bahadur Basnett. The land revenue records were stated not to be of such significance in the face of these documents, but sympathising with the predicament of the appellant and recognising the weaker position of the Government in the entire dispute, it was observed that the Government had no justification to keep holding on to the land revenue as collected from the appellant. Since no claim was made in that behalf, it was directed that the same should be refunded, if so asked for by the appellant, more so as the Government has to act as a “model litigant”.<br>8. In the SLP filed against the impugned order, leave was granted on 7-1-20111. The matter was, however, taken up for hearing for the first time on 2-5-20192. On hearing the learned counsel for the parties, at the request of the learned counsel for the respondents, time was given to scrutinise the record and show to the Court how a sum of Rs 62,645 was withdrawn by the Collector in cash (as alleged and as contended), and which document(s) evidenced payment to late Man Bahadur Basnett. It was observed that this was the least expected considering that the respondents claimed to have lost all records of acquisition proceedings and none of the notifications were available. The order2 ended by observing that a failure to show the same would necessitate the State Government to acquire the land through fresh notification, if it wants to keep the land.<br>9. An affidavit was filed in August 2019, which was analysed on 27-8-2019, and it was found that there was neither any proof of the Collector having withdrawn cash to the tune of Rs 62,645 from the account, nor any receipt from late Man Bahadur Basnett acknowledging the payment, except the stated covering letter for the receipt. In the conspectus of these facts, in order to work out a mutually agreed settlement, the dispute was referred to the Mediation Centre annexed to the High Court of Sikkim. Unfortunately this also did not produce any result, a failure report was received and, thus, the remaining arguments were heard.<br>10. We may notice that though leave was granted, no cross-objections were filed by the respondents on any aspect including on the finding of limitation.<br>11. Be that as it may, the fact remains, as noticed by the High Court, that it is not the case of the respondents that they had adverse possession, but that they had acquired the land through due process and had paid compensation for the same. We agree with the High Court that there is no plea even of adverse possession by the respondent. We are not to be detained by the same in this appeal.<br>12. We are in complete agreement with this view and for this reason also the plea of adverse possession really does not survive.<br>13. That brings us to the question whether the process of acquisition had been followed in accordance with law. No notification has been shown to us of the intent to acquire land under Section 4, or any other declaration thereafter. In fact what is claimed before us, as also before the courts below, is that no records are available in respect of the acquisition process. This obviously puts the respondent State in a difficult situation, which was sought to be got over by only relying on a consent having been obtained for acquisition and the compensation having been paid, as determined. On the aspect of the compensation, only a covering letter is available, and not the actual receipt. We have also observed aforesaid that an unusual process of making payment in cash is claimed to have been adopted, and the amount is not an insignificant amount, if we look at the year of acquisition. We even gave a further opportunity to the authorities to show, as to from which account this compensation was withdrawn by the Collector, but it appears that there is no proof even of the withdrawal of the amount, much less payment of the compensation. The letter dated 20-3-1980 of late Man Bahadur Basnett is no doubt a no-objection to the acquisition of land, but provided compensation was paid subsequently. This letter does not obviate the need to furnish proof of the process for acquisition of land or for the determination of compensation, under the said Act. <font color=\"#ce0000\">There cannot be a presumption of acquisition without following the due process as envisaged under Sections 3(1), 4(2), 5(1) and 7(2) of the said Act. The burden was on the State to prove that the process as envisaged under the said Act was followed and the compensation paid. </font>Not an iota of evidence has been laid in support of any of these aspects, except the willingness of late Man Bahadur Basnett to permit the land to be acquired on payment of compensation, the forwarding of the amount by the Land Revenue Department to the District Collector through a cheque, and thereafter a letter from the Collector/Respondent 1 stating that some receipt was being enclosed, acknowledging the payment in cash (without a receipt being found). There is, thus, absence of both primary and secondary evidence.<br>14. We may note that even though rights in land are no more a fundamental right, still it remains a constitutional right under Article 300-A of the Constitution of India, and the provisions of any Act seeking to divest any person from the rights in property have to be strictly followed3.<br>15. It is also settled law that following the procedure of Section 4(1) of the Land Acquisition Act, 18944 [akin to Section 5(1) of the said Act] is mandatory, and unless that notice is given in accordance with the provisions contained therein, the entire acquisition proceeding would be vitiated. An entry into the premises based on such non-compliance would result in the entry being unlawful5. The law being expropriatory in character, the same is required to be strictly followed. The purpose of the notice is to intimate the interested persons about the intent to acquire the land. These provisions, as they read, of the said Act, thus, are also required to be so followed.<br>16. We find a detailed discussion about the law as it evolved and the rationale for the said purpose in Vidya Devi6 of which the relevant paragraphs read as under : (SCC pp. 572-74, para 12)<br>“12.1. The appellant was forcibly expropriated of her property in 1967, when the right to property was a fundamental right guaranteed by Article 31 in Part III of the Constitution. Article 31 guaranteed the right to private property (State of W.B. v. Subodh Gopal Bose7), which could not be deprived without due process of law and upon just and fair compensation.<br>12.2. The right to property ceased to be a fundamental right by the Constitution (Forty-fourth Amendment) Act, 1978, however, it continued to be a human right (Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn.8) in a welfare State, and a constitutional right under Article 300-A of the Constitution. Article 300-A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300-A, can be inferred in that Article [K.T. Plantation (P) Ltd. v. State of Karnataka9].<br>12.3. To forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also the constitutional right under Article 300-A of the Constitution. Reliance is placed on the judgment in Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai10, wherein this Court held that : (SCC p. 634, para 6)<br>‘6. … Having regard to the provisions contained in Article 300-A of the Constitution, the State in exercise of its power of “eminent domain” may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid.’<br>12.4. In N. Padmamma v. S. Ramakrishna Reddy3, this Court held that : (SCC p. 526, para 21)<br>‘21. If the right of property is a human right as also a constitutional right, the same cannot be taken away except in accordance with law. Article 300-A of the Constitution protects such right. The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300-A of the Constitution of India, must be strictly construed.’<br>12.5. In Delhi Airtech Services (P) Ltd. v. State of U.P.11, this Court recognised the right to property as a basic human right in the following words : (SCC p. 379, para 30)<br>‘30. It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government. Jefferson was of the view that liberty cannot long subsist without the support of property. “Property must be secured, else liberty cannot subsist” was the opinion of John Adams. Indeed the view that property itself is the seedbed which must be conserved if other constitutional values are to flourish, is the consensus among political thinkers and jurists.’<br>12.6. In Jilubhai Nanbhai Khachar v. State of Gujarat12 this Court held as follows : (SCC p. 627, para 48)<br>‘48. … In other words, Article 300-A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. In other words, if there is no law, there is no deprivation.’<br>12.7. In this case, the appellant could not have been forcibly dispossessed of her property without any legal sanction, and without following due process of law, and depriving her payment of just compensation, being a fundamental right on the date of forcible dispossession in 1967.<br>12.8. The contention of the State that the appellant or her predecessors had “orally” consented to the acquisition is completely baseless. We find complete lack of authority and legal sanction in compulsorily divesting the appellant of her property by the State.<br>12.9. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn.8 wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution.<br>12.10. This Court in State of Haryana v. Mukesh Kumar13 held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multi-faceted dimension.”<br>17. There is also a discussion in the judgment6 on the aspect of delay and laches, which is as under : (Vidya Devi case6, SCC pp. 574-75, para 12)<br>“12.12. The contention advanced by the State of delay and laches of the appellant in moving the court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice.<br>12.13. In a case where the demand for justice is so compelling, a constitutional court would exercise its jurisdiction with a view to promote justice, and not defeat it (P.S. Sadasivaswamy v. State of T.N.14).<br>12.14. In Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn.8, this Court while dealing with a similar fact situation, held as follows : (SCC p. 359, para 11)<br>‘11. There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. The functionaries of the State took over possession of the land belonging to the appellants without any sanction of law. The appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode.’”<br>18. The aforesaid legal principles do not leave the respondents with any defence in the given facts of the case.<br>19. The result of the aforesaid would be that the respondents have failed to establish that they had acquired the land in accordance with law and paid due compensation. The appellant would, thus, be entitled to the possession of the land as also damages for illegal use and occupation of the same by the respondents, at least, for a period of three (3) years prior to the notice having been served upon them. We are strengthened in our observations on account of the judgment of this Court in LAO v. M. Ramakrishna Reddy15, wherein it was held that the owner can be entitled to damages for wrongful use and possession of land in respect of which no notification is issued under Section 4 of the Land Acquisition Act, from the date of possession till the date such notification is finally published.<br>20. We are conscious that the land is being used by the respondent State through Respondent 2 Department. That, however, does not give such a licence to the State Government. We had endeavoured to refer the matter for mediation, to find an amicable solution, but that did not fructify. We, however, would like to give some time to the respondent State to analyse the consequences of this judgment, and, in case they so desire, to acquire the land through a proper notification under the said Act, and to take proper recourse in law so as to enable them to keep the land. We grant three (3) months’ time from the date of the judgment for the respondent State to make up their mind as to what they want to do. Would they still like to retain the land by issuing a proper notification, or would they like to surrender possession of the land. In either eventuality, the question of payment for use and occupation would still arise, which will have to be determined in accordance with law. Mesne profits would be determined by a Court Commissioner, to be appointed by the trial court, as a relief in that behalf has been sought in the plaint itself.<br>21. In view of the aforesaid order, the alternative direction passed by the appellate court to refund the land revenue in case of a claim would not arise.<br>22. The appeal is accordingly allowed, leaving the parties to bear their own costs.<br>———<br>†<span style=\"white-space:pre\">	</span>Arising from the Judgment and Order in RFA No. 2 of 2007 (Sikkim High Court, dt. 29-5-2008)<br>1<span style=\"white-space:pre\">	</span>D.B. Basnett v. LAO, 2011 SCC OnLine SC 89<br>2<span style=\"white-space:pre\">	</span>D.B. Basnett v. LAO, 2019 SCC OnLine SC 1779<br>3<span style=\"white-space:pre\">	</span>N. Padmamma v. S. Ramakrishna Reddy, (2008) 15 SCC 517<br>4<span style=\"white-space:pre\">	</span>Publication of Preliminary Notification and Powers of Officers thereupon.<br>5<span style=\"white-space:pre\">	</span>Narinderjit Singh v. State of U.P., (1973) 1 SCC 157<br>6<span style=\"white-space:pre\">	</span>Vidya Devi v. State of H.P., (2020) 2 SCC 569 : (2020) 1 SCC (Civ) 799<br>7<span style=\"white-space:pre\">	</span>State of W.B. v. Subodh Gopal Bose, AIR 1954 SC 92<br>8<span style=\"white-space:pre\">	</span>Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn., (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491<br>9<span style=\"white-space:pre\">	</span>K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1 : (2011) 4 SCC (Civ) 414<br>10<span style=\"white-space:pre\">	</span>Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai, (2005) 7 SCC 627<br>11<span style=\"white-space:pre\">	</span>Delhi Airtech Services (P) Ltd. v. State of U.P., (2011) 9 SCC 354 : (2011) 4 SCC (Civ) 673<br>12<span style=\"white-space:pre\">	</span>Jilubhai Nanbhai Khachar v. State of Gujarat, 1995 Supp (1) SCC 596<br>13<span style=\"white-space:pre\">	</span>State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 : (2012) 3 SCC (Civ) 769<br>14<span style=\"white-space:pre\">	</span>P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152 : 1975 SCC (L&amp;S) 22<br>15<span style=\"white-space:pre\">	</span>LAO v. M. Ramakrishna Reddy, (2011) 11 SCC 648 : (2011) 4 SCC (Civ) 633<br><br><br></h4><p><br></p>', '744a2bb0400afdd428310eab3948173e.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-03-02', 1, '', '', '2021-02-15 20:10:45', '2021-02-15 20:19:03'),
(464, 'c527yjn4VBceGN6M9UFzrdl6T', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Muslim Law. Valid and Complete Gift. Authoritative pronouncement of the Supreme Court.  ', '<h3><i style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 0);\">Full Judgment. (See para 12, 13 and 14)</i><br></h3><h4>IN THE SUPREME COURT OF INDIA&nbsp;<br>Abdul Rahim v. Sk. Abdul Zabar&nbsp;<br>Civil Appeal No. 1573 of 2009†, decided on March 6, 2009<br>Justice A.K.Ganguly and Justice R.M. Lodha<br>Reported in (2009) 6 SCC 160&nbsp;&nbsp;<br>S.B. SINHA, J.— Leave granted. The interpretation and/or application of the Islamic law on gift vis-à-vis handing over of possession of the property gifted is the question involved in this appeal. It arises out of a judgment and order dated 30-6-2008 passed by the High Court of Orissa at Cuttack in First Appeal No. 197 of 1982 whereby and whereunder the first appeal filed by Respondent 1-plaintiffs has been allowed decreeing the suit.<br>2. Indisputably, the properties in question belonged to one Haji Sheikh Abdullah. He had two sons and four daughters. Respondent 1-plaintiff was his elder son; whereas Abdul Razak (Razak) (since deceased), father of the appellants was the younger son. His daughters were married. He gifted some lands in favour of his daughters in 1960. They in turn relinquished their rights in his properties.<br>3. Haji Sheikh Abdullah executed a registered deed of gift in favour of Razak on or about 21-2-1973. The property gifted was a house. Adjoining thereby was a small patch of land which belonged to the State. The State had granted a temporary lease in favour of Haji Sheikh Abdullah. It was being used for ingress to and egress from the said house. It is also not in dispute that he executed various documents in the year 1975 transferring his properties in favour of Respondent 1, his sons as also the sons of Razak, the appellants herein.<br>4. The recitals in the said deed of gift dated 21-2-1973 read as under:<br>“Description.—I, the donor purchased the schedule land from Sheikh Abdul Azizi Ahmedi on 14-10-1958 by registered Deed No. 11399 and since the date of purchase I have been possessing as owner thereof. Since I have become old, you the donee being my younger son, you along with&nbsp; your wife have been looking after me with utmost care and besides also you both are paying utmost regards to me and so, satisfied with you I decided to gift you the schedule land which is my self-acquired property and being in good health and mind, I am transferring the schedule land valued at rupees four thousand approximately to you by way of gift and executing this deed of gift and having done so, I declare that from today onwards you and your children by succession will enjoy and possess the same and pay rent to Anchal and obtain rent receipts in your name and whenever necessity arises you can transfer the same to which I will have no objection. In case I object, it will not be accepted by any court of law and this deed will remain valid and effective.<br>Dated 21-2-1973.”<br>5. In the year 1975, Haji Sheikh Abdullah filed an application before the Tahsildar, Bhadrak for mutation of Razak’s name in respect of the suit land in the revenue records marked as Case No. 93 of 1975, stating:<br>“I, the present applicant Haji Sheikh Abdullah aged 85 years, s/o Sheikh Abdul Gafur, at Sankarpur, Bhadrak, District Balasore, do hereby state that on account of old age I am unable to walk. Being satisfied with the services and help rendered by my son Abdul Razak I have gifted the following lands to him by a registered Gift Deed No. 1647 dated 21-2-1973 and so, I have no claim over the said properties.<br>Therefore, name of my son Abdul Razak may be entered in the tenancy ledger in place of my name and rent may be collected from him.”<br>6. Indisputably, Razak also filed TL Case No. 7 of 1976 for grant of temporary lease in respect of the said small patch of government land which along with the suit land formed a compact area. The deed of gift was also produced in the said proceedings. Respondent 1 objected to the prayers made by the appellant. By an order dated 6-4-1977, the Tahsildar, Bhadrak while holding that the objection raised by Respondent 1 was without any merit, recommended renewal of the licence in favour of Razak.<br>7. Respondent 1 filed a suit being OS No. 112 of 1980 on or about 2-9-1980 in the Court of the Subordinate Judge, Bhadrak inter alia praying for a declaration that the said deed of gift dated 21-2-1973 was illegal, void and inoperative. Two issues arose therein for consideration of the learned trial Judge: (1) Whether the suit was barred by limitation; and (2) Whether Haji Sheikh Abdullah had handed over the possession of the properties in question in favour of Razak.<br>8. Indisputably, during the pendency of the suit, Razak died and his legal heirs, the appellants herein, were substituted in his place. The trial court dismissed the suit opining that the cause of action for filing the suit having arisen on 6-4-1977, the suit was instituted beyond the period of limitation as prescribed by Article 59 of the Schedule appended to the Limitation Act, 1963. It was furthermore held that as Razak had been collecting the house rent from the tenants for the suit lands in his own capacity and not as an agent of his father and also having regard to the order of mutation in his favour, the deed of gift dated 21-2-1973 was valid in law.<br>9. Respondent 1 preferred an appeal thereagainst. The High Court allowed the said appeal inter alia holding that as Razak had been realising rent from the tenants even prior to the date of death of his father and as there was no material brought on record to show that Haji Sheikh Abdullah had divested himself of the title of the said property and Razak was in possession thereof. The High Court furthermore opined that Respondent 1 came to know of the fact of execution of the deed of gift in favour of Razak only in the year 1980.<br>10. Mr R.K. Dash, learned Senior Counsel appearing on behalf of the appellants would submit that the High Court committed a manifest error in passing the impugned judgment insofar as it failed to take into consideration that the premises having been let out to the tenants, handing over constructive possession thereof subserved the requirements of law.<br>11. Mr Bharat Sangal, learned counsel appearing on behalf of the respondents, on the other hand, would submit:<br>(i) Respondent 1 has not been able to prove any overt act on the part of the donor to establish that possession of the premises was in fact delivered to the donee.<br>(ii) As the rents were being collected from the tenants even prior to the execution of the deed of gift, collection of rent by itself would not establish delivery of possession.<br>(iii) The order of mutation having been passed in respect of a separate strip of land and not being the subject-matter of the deed of gift, the same was not relevant for determination of the issue.<br>(iv) The plaintiff having stated on oath that he had not filed any objection in the said mutation proceedings and having come to learn about the execution of the deed of gift only in the year 1980, the suit must be held to have been filed within the prescribed period of limitation.<br></h4><h4><font color=\"#9c0000\">12. A gift indisputably becomes complete when a person transfers with immediate effect the ownership of his movable or immovable property to another person, and that other person himself or someone else with his consent takes possession of the property gifted. Under Mohammadan law it is a contract which takes effect through offer and acceptance.</font></h4><h4><font color=\"#9c0000\">13. The conditions to make a valid and complete gift under the Mohammadan law are as under:</font></h4><h4><font color=\"#9c0000\">(a) The donor should be sane and major and must be the owner of the property which he is gifting.</font></h4><h4><font color=\"#9c0000\">(b) The thing gifted should be in existence at the time of hiba.</font></h4><h4><font color=\"#9c0000\">(c) If the thing gifted is divisible, it should be separated and made distinct.</font></h4><h4><font color=\"#9c0000\">(d) The thing gifted should be such property to benefit from which is lawful under the Shariat.</font></h4><h4><font color=\"#9c0000\">(e) The thing gifted should not be accompanied by things not gifted i.e. should be free from things which have not been gifted.</font></h4><h4><font color=\"#9c0000\">(f) The thing gifted should come in the possession of the donee himself, or of his representative, guardian or executor.</font></h4><h4><font color=\"#9c0000\">14. It is also well settled that if by reason of a valid gift the thing gifted has gone out of the donee’s ownership, the same cannot be revoked. The donor may lawfully make a gift of a property in the possession of a lessee or a mortgagee. For effecting a valid gift, the delivery of constructive possession of the property to the donee would serve the purpose. Even a gift of a property in possession of trespasser is permissible in law provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession.</font></h4><h4>15. We may notice the definition of gift as contained in various textbooks. In Mulla’s Principles of Mohammadan Law the “hiba” is defined as a transfer of property made immediately without any exchange by one person to another and accepted by or on behalf of latter. A.A.A. Fyzee in his Outlines of Muhammadan Law defined “gift” in the following terms:<br>“A MAN may lawfully make a gift of his property to another during his lifetime; or he may give it away to someone after his death by will. The first is called a disposition inter vivos; the second, a testamentary disposition. Muhammadan law permits both kinds of transfers; but while a disposition inter vivos is unfettered as to quantum, a testamentary disposition is limited to one-third of the net estate. Muhammadan law allows a man to give away the whole of his property during his lifetime, but only one-third of it can be bequeathed by will.”<br>16. Syed Ameer Ali in his Commentary on Mohammedan Law has amplified the definition of “hiba” in the following terms:<br>“In other words the ‘hiba’ is a voluntary gift without consideration of a property or the substance of a thing by one person to another so as to constitute the donee, the proprietor of the subject-matter of the gift. It requires for its validity three conditions viz. (a) a manifestation of the wish to give on the part of the donor; (b) the acceptance of the donee either impliedly or constructively; and (c) taking possession of the subject-matter of gift by the donee either actually or constructively.”<br>17. In Maqbool Alam Khan v. Khodaija1 it was held: (AIR pp. 1196-97, paras 6-7)<br>“6. The Prophet has said: ‘A gift is not valid without seisin.’ The rule of law is:<br>‘Gifts are rendered valid by tender, acceptance and seisin. Tender and acceptance are necessary ‘because a gift is a contract, and tender and acceptance are requisite in the formation of all contracts; and seisin is necessary in order to establish a right of property in the gift, because a right of property, according to our doctors, is not established in the thing given merely by means of the contract, without seisin.’ [See Hamilton’s Hedaya (Grady’s Edn.), p. 482.]<br>7. Previously, the rule of law was thought to be so strict that it was said that land in the possession of a usurper (or wrongdoer) or of a lessee or a mortgagee cannot be given away, see Dorrul Mokhtar, Book on Gift, p. 635 cited in Mullick Abdool Guffoor v. Muleka2. But the view now prevails that there can be a valid gift of property in the possession of a lessee or a mortgagee and a gift may be sufficiently made by delivering constructive possession of the property to the donee. Some authorities still take the view that a property in the possession of a usurper cannot be given away, but this view appears to us to be too rigid. The donor may lawfully make a gift of a property in the possession of a trespasser. Such a gift is valid, provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession.”<br>&nbsp;(See also Mullick Abdool Guffoor v. Muleka2.)<br>18. Faiz Badruddin Tyabji in his Muslim Law — The Personal Law of Muslims in India and Pakistan states the law thus:<br>“395.(1) The declaration and acceptance of a gift do not transfer the ownership of the subject of gift, until the donor transfers to the donee such seisin or possession as the subject of the gift permits viz. until the donor (a) puts it within the power of the donee to take possession of the subject of gift, if he so chooses, or (b) does everything that, according to the nature of the property forming the subject of the gift, is necessary to be done for transferring the ownership of the property, and rendering the gift complete and binding upon himself.<br>(2) Imam Malik holds that the right to the subject of gift relates back to the time of the declaration.”<br>19. Transfer of possession under the Muslim law is necessary for transferring complete ownership. The learned author Tyabji states:<br>“Transfer of possession in hiba is not merely a matter of form, nor something merely supplying evidence of the intention to make a gift. The necessity for the transfer of possession is expressly insisted upon as part of the substantive law, since transfer of possession effectuates that which the gift is intended to bring about viz. the transfer of the ownership of the property from the donor to the donee. It may be said that transfer of possession is no more a matter of form than the necessity for consideration for the validity of a contract is a matter of form. The law does not ask, did the donor really intend to give the subject of gift i.e. did he really intend to transfer the ownership of the subject of gift from himself to the donee? What the law asks is, has the donor actually given away? or Has the ownership been actually transferred from the donor to the donee?”<br>In regard to contracts it has been well expressed:<br>“It is often difficult to determine whether what is said amounts only to a willingness to treat about a matter, or is an absolute contract; and the adoption of a form removes the difficulty. So that what may have been considered a mere matter of form becomes incorporated in substantive law. What has to be determined is not whether the donor had finally resolved to make a gift, but whether he had actually transferred away the property—and even where the transfer is for consideration, possession has, in most systems of law, an important bearing on the rights of the parties and others claiming through them, since (under Muslim law) the owner’s right ceases on his death, and devolves upon his heirs, it follows that where the owner dies without transferring the property to another, the person to whom a voluntary transfer was intended to be made, has no claim against the heirs.”<br>20. Indisputably, the deed of gift is a registered one. It contains a clear and unambiguous declaration of total divestment of property. A registered document carries with it a presumption that it was validly executed. It is for the party questioning the genuineness of the transaction to show that in law the transaction was not valid.<br>21. We have noticed hereinbefore that Razak had been receiving rent from the tenants. In fact, Respondent 1 in his suit claimed a decree for apportionment of rent. We would presume that Razak had been collecting rent from the tenants during the lifetime of his father. The agency to collect rent, however, came to end as soon as an order of mutation was passed in his favour. Apart from the fact that Razak was allowed to continue to collect rent which having regard to the declaration made in the deed of gift must be held to be on his own behalf and not on behalf of the donor. Constructive possession of the suit premises must be held to have been handed over by the donor as he had himself prayed for mutation of Razak’s name in the revenue record. The High Court, in our opinion, misconstrued the order of the Revenue Authority. It having failed to take into consideration the import and purport of the donor’s application before the Tahsildar committed a manifest error in holding that the order of mutation on that basis was not decisive.<br>22. Respondent 1 while examining himself as a witness (PW 2) furthermore categorically admitted:<br>“My father applied in that case for recording the leasehold land in favour of D-1. Despite my objection D-1 was accepted as lessee in place of my father in 1976. Ext. D-4 is the vakalatnama I executed in favour of Shri N.C. Mohapatra, Advocate. Ext. D-5 is the petition of adjournment filed in that lease case on my side. I could not follow the proceeding in TL Case No. 7 of 1976. It is not a fact that I knew about the gift to D-1 from 1976.”<br>In a case of this nature, thus, the transfer of constructive possession would subserve the requirements of law.<br>23. In Munni Bai v. Abdul Gani3 it was held: (AIR p. 226, para 6)<br>“6. However, delivery of possession can be made in such manner as the subject of the gift is susceptible of: see Sadik Husain Khan v. Hashim Ali Khan4 at p. 221. In a case of gift of the equity of redemption when the mortgage is usufructuary, there can be no delivery of physical possession of the property. In these circumstances, execution of Ext. P-1 by Mst Dhapli, by which, after making an oral declaration of gift, she recognised the respondent as owner of the house and delivered the document to him in token thereof, is sufficient delivery of possession.”<br>24. A learned Single Judge of the Orissa High Court in Abu Khan v. Moriam Bibi5 held:<br>“… delivery of possession may be either actual or constructive. ‘Possession’ has been defined in Section 394 of Muslim Law by Tyabji. The definition runs thus:<br>‘A person is said to be in possession of a thing, or of immovable property, when he is so placed with reference to it that he can exercise exclusive control over it, for the purpose of deriving from it such benefit as it is capable of rendering, or as is usually derived from it.’<br>Thus, possession can be shown not only by acts of enjoyment of the land itself but also by ascertaining as to in whom the actual control of the thing is to be attributed or the advantages of possession are to be credited, even though some other person is in apparent occupation of the land. In one case, it would be actual possession and in the other case, it would be constructive possession.”<br>In that case, handing over of the deed of gift coupled with the declaration made in the document was held to be sufficient for constituting a valid gift. (See also Valia Peedikakkandi Katheessa Umma v. Pathakkalan Narayanath Kunhamu6.) We agree with the ratio laid down therein.<br>25. We, therefore, are of the opinion that the High Court committed a serious error in opining that the possession had not been handed over to Razak by the donor.<br>26. Limitation for filing a suit in a case of this nature is governed by Article 59 of the Schedule appended to the Limitation Act, which reads as under:<br>“Description of suit<span style=\"white-space:pre\">	</span>Period of limitation<span style=\"white-space:pre\">	</span>Time from which period begins to run<br>59.<span style=\"white-space:pre\">	</span>To cancel or set aside an instrument or decree or for the rescission of a contract.<span style=\"white-space:pre\">	</span>Three years<span style=\"white-space:pre\">	</span>When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.”<br>27. Respondent 1 in his suit prayed for cancellation of and setting aside of the deed of gift dated 21-2-1973. He became aware of the deed of gift in the proceedings before the Tahsildar. He had filed objections on Razak’s application for grant of lease in his name in respect of the small patch of lands which was being used for ingress to and egress from the property in question. In that proceeding itself, the donor himself had prayed for mutation of Razak’s name in respect of the property in question.<br>28. A suit for cancellation of transaction whether on the ground of being void or voidable would be governed by Article 59 of the Limitation Act. The suit, therefore, should have been filed within a period of three years from the date of knowledge of the fact that the transaction which according to the plaintiff was void or voidable had taken place. The suit having not been filed within a period of three years, the suit has rightly been held to be barred by limitation.<br>29. In Mohd. Noorul Hoda v. Bibi Raifunnisa7 this Court held: (SCC p. 771, para 6)<br>“6. … There is no dispute that Article 59 would apply to set aside the instrument, decree or contract between the inter se parties. The question is whether in case of person claiming title through the party to the decree or instrument or having knowledge of the instrument or decree or contract and seeking to avoid the decree by a specific declaration, whether Article 59 gets attracted? As stated earlier, Article 59 is a general provision. In a suit to set aside or cancel an instrument, a contract or a decree on the ground of fraud, Article 59 is attracted. The starting point of limitation is the date of knowledge of the alleged fraud. When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Section 31 of the Specific Relief Act, 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled. It would thus be clear that the word ‘person’ in Section 31 of the Specific Relief Act is wide enough to encompass a person seeking derivative title from his seller. It would, therefore, be clear that if he seeks avoidance of the instrument, decree or contract and seeks a declaration to have the decrees set aside or cancelled he is necessarily bound to lay the suit within three years from the date when the facts entitling the plaintiff to have the decree set aside, first became known to him.”<br>(See also Sneh Gupta v. Devi Sarup8.)<br>30. For the reasons aforementioned, the impugned judgment is set aside. The appeal is allowed with costs. Counsel’s fee assessed at Rs 25,000.<br>———<br>†<span style=\"white-space:pre\">	</span>Arising out of SLP (C) No. 24819 of 2008. From the Judgment and Order dated 30-6-2008 of the Hon’ble High Court of Orissa, Cuttack in FA No. 197 of 1982<br>1<span style=\"white-space:pre\">	</span>AIR 1966 SC 1194 : (1966) 3 SCR 479<br>2<span style=\"white-space:pre\">	</span>ILR (1884) 10 Cal 1112<br>3<span style=\"white-space:pre\">	</span>AIR 1959 MP 225<br>4<span style=\"white-space:pre\">	</span>(1915-16) 43 IA 212 : AIR 1916 PC 27<br>5<span style=\"white-space:pre\">	</span>(1974) 40 Cut LT 1306<br>6<span style=\"white-space:pre\">	</span>AIR 1964 SC 275<br>7<span style=\"white-space:pre\">	</span>(1996) 7 SCC 767<br>8<span style=\"white-space:pre\">	</span>(2009) 6 SCC 194 : (2009) 2 Scale 765</h4><p><br></p>', '0819cf0262b48502fb0f036719e23b5e.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2009-03-06', 1, '', '', '2021-02-15 23:00:32', '2021-02-15 23:19:06');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(465, 'gi9FVCCzKXl72MwGvGtS0OWHf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Lookout Circulars issued at the behest of creditor banks against loan defaulters does not require prior notice. Karnataka High Court.   ', '<h3><span style=\"font-size: 21.3333px;\">Dr. Bavaguthu Raghuram Shetty vs Bureau of Immigration and others.</span></h3><h3><span style=\"font-size: 21.3333px;\"> Writ Petition 15032/2020 decided on 12 February 2020.&nbsp;</span></h3><h3><span style=\"font-size: 21.3333px;\">Justice P.S Dinesh Kumar.&nbsp;</span></h3><h3><span style=\"font-size: 21.3333px;\">Petitioner, a non-resident Indian has presented thesetwo writ petitions challenging the Lookout Circulars (LOCs for short) issued by Bank of Baroda (\'BOB\' for short) and Punjab National Bank (\'PNB\' for short). Hence, they are disposed of by this common order:&nbsp;</span></h3><h3><span style=\"font-size: 21.3333px;\">13. Undisputed facts of the case are, BOB has lent about Rs.2,000 Crores and exposure of PNB is Rs.800 Crores. Petitioner is an Indian National. He claims that he ordinarily resides in the UAE. It is the admitted case of petitioner that the Companies in question were promoted by him and he was in-charge of them till he stepped down from the Managements between 2015 and 2017. It is also the admitted case of petitioner that default has occurred due to mismanagement of Companies by the present CEOs and CFOs</span></h3><h3><span style=\"font-size: 21.3333px;\">18. Thus, Clause(c) of paragraph No.7 gives liberty for a person against whom LOC is issued, to approach the officer who has ordered issuance of LOC and explain that it is wrongly issued against him. In the letter written by the Commissioner, Bureau of Immigration, it is stated that the LOCs have been issued at the behest of BOB and PNB. Therefore, petitioner has to first approach the Bank Authorities. Hence, a direction to provide a copy is unnecessary.&nbsp;</span></h3><h3><font color=\"#ce0000\"><span style=\"font-size: 21.3333px;\">19. The next prayer is to declare issuance of LOC without prior notice as illegal and violative Article 14, 19 and 21 of the Constitution of India. On the face of it, the prayer is misconceived because, the whole purpose of issuance of LOC would be defeated by a prior notice. By amending the Official Memorandum, Chairmen of Banks have been empowered to issue LOCs. Banker may consider issuing LOC to protect Bank\'s interest based on the subjective satisfaction of the issuing authority and in this case, the BOB and PNB. Therefore, the argument seeking prior notice is incongruous and therefore rejected.&nbsp;</span></font><br></h3><h3><span style=\"font-size: 21.3333px;\">20. The third prayer is to permit petitioner to travel to Abudabi. Unless, petitioner exhausts the remedy of approaching BOB and PNB and explains to them as to how the LOCs have been wrongly issued and the Banks pass any further orders thereon, there is no cause of action to consider the said prayer.</span></h3><h3><span style=\"font-size: 21.3333px;\">Writ Petition dismissed.</span></h3>', 'fd3d97dbfb7e5dc750dad32e9da44ed7.jpeg', '73103b08781e674d4a14e70075d850a2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-17', 1, '', '', '2021-02-16 02:30:20', '2023-01-17 17:51:59'),
(467, 'VHNYum917wnDocSRnUg85RoD9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Recovery of Debts and Bankruptcy Act. Deposit of amount of debt due on filing appeal under Section 21. Waiver of pre­deposit to the entire extent is not permissible. Supreme Court. ', '<h4>Kotak Mahindra Bank Pvt. Limited vs Ambuj A. Kasliwal &amp; Ors.&nbsp; &nbsp; &nbsp;<br></h4><h4>Civil Appeal 538&nbsp;of 2021 decided on 16 February 2021.&nbsp;</h4><h4>Chief Justice S. A. Bobde, Justice, Justice A. S. Bopanna, Justice V. Ramasubramanian</h4><h4>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2019/30172/30172_2019_31_1501_26209_Judgement_16-Feb-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/30172/30172_2019_31_1501_26209_Judgement_16-Feb-2021.pdf</a></h4><h4><font color=\"#ce0000\">Relevant paragraphs</font>: 9. Section 21 of the RDBA reads as hereunder: ­<br>“Deposit of amount of debt due, on filing appeal – Where an appeal is preferred by any person from whom the amount of debt is due to&nbsp; &nbsp;a&nbsp; &nbsp;bank&nbsp; &nbsp;or&nbsp; &nbsp;a&nbsp; &nbsp;financial&nbsp; &nbsp;institution&nbsp; &nbsp;or&nbsp; &nbsp;a consortium of banks or financial institutions, such appeal shall not be entertained by the Appellate Tribunal unless such person has deposited with the Appellate Tribunal [fifty per cent.] of the amount of debt so due from him&nbsp; &nbsp;as&nbsp; &nbsp;determined by the Tribunal under section 19:<br>Provided that the Appellate Tribunal may, for reasons to be recorded in writing, [reduce the amount to be deposited by such amount which shall not be less than twenty ­five per cent. of the amount of such debt so due] to be deposited under this section.”<br>10. A&nbsp; &nbsp;perusal&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;provision&nbsp; &nbsp;which&nbsp; &nbsp;employs&nbsp; &nbsp;the phrase “appeal shall not be entertained” indicates that it injuncts&nbsp; &nbsp;the&nbsp; Appellate&nbsp; &nbsp;Tribunal&nbsp; &nbsp;from&nbsp; &nbsp;entertaining&nbsp; &nbsp;an appeal by a person from whom the amount of debt is due to the Bank, unless such person has deposited with the Appellate Tribunal, fifty percent of the amount of debt so due&nbsp; &nbsp;from&nbsp; &nbsp;him&nbsp; &nbsp;as&nbsp; &nbsp;determined&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; Tribunal&nbsp; &nbsp;under Section 19 of the Act. The proviso to the said Section, however, grants the discretion to the Appellate Tribunal to reduce the amount to be deposited, for reasons to be recorded in writing, but such reduction shall not be less than twenty five per cent of the amount of such debt which is due.&nbsp;&nbsp;<font color=\"#ce0000\">Hence the pendulum of discretion to waive pre­ deposit is allowed to swing between fifty per cent and twenty­ five&nbsp; &nbsp;per&nbsp; &nbsp;cent&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;debt&nbsp; &nbsp;due&nbsp; &nbsp;and&nbsp; &nbsp;not&nbsp; &nbsp;below twenty five per cent, much less not towards total waiver.</font> It is in that background, keeping in perspective the said provision,&nbsp; &nbsp;the&nbsp; &nbsp;DRAT&nbsp; &nbsp;has&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;instant&nbsp; &nbsp;case&nbsp; &nbsp;ordered deposit of fifty per cent of the amount. The respondents No.1&nbsp; &nbsp;and&nbsp; &nbsp;2&nbsp; &nbsp;while&nbsp; &nbsp;seeking&nbsp; &nbsp;waiver&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;deposit&nbsp; &nbsp;have essentially projected the case to indicate that the recovery certificate ordered by the DRT is for the sum of Rs.145 Crores with interest at 9% per annum and the amount realised&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;Bank&nbsp; &nbsp;from&nbsp; &nbsp;the&nbsp; &nbsp;compensation&nbsp; &nbsp;amount payable&nbsp; &nbsp;to&nbsp; &nbsp;respondent&nbsp; &nbsp;No.3&nbsp; &nbsp;is&nbsp; &nbsp;itself&nbsp; &nbsp;a&nbsp; &nbsp;sum&nbsp; &nbsp;of<br>Rs.152,81,07,159/­(Rupees&nbsp; &nbsp;One&nbsp; &nbsp;Hundred&nbsp; &nbsp;Fifty&nbsp; &nbsp;Two Crores&nbsp; &nbsp;Eighty&nbsp; &nbsp;One&nbsp; &nbsp;Lakhs&nbsp; &nbsp;Seven&nbsp; &nbsp;Thousand&nbsp; &nbsp;and&nbsp; &nbsp;One Hundred Fifty Nine) and as such there is no debt due.&nbsp;&nbsp;<br>11. In that regard the High Court has concluded as hereunder: ­“9. Having heard learned senior counsels for the parties, we are of the considered view that learned DRAT has not viewed the aspect of pre­deposit correctly in the present case. The&nbsp; &nbsp;amount&nbsp; &nbsp;of&nbsp; Rs.152,81,07,159/­ was received by the respondent­bank during the pendency of the Original Application. The respondent­ bank did not amend its Original Application to claim that it has adjusted the said amount, and did not limit its claim for the&nbsp; &nbsp;balance&nbsp; &nbsp;amount.&nbsp; Consequently,&nbsp; &nbsp;while adjudicating&nbsp; &nbsp;the&nbsp; &nbsp;Original&nbsp; &nbsp;Application,&nbsp; &nbsp;the DRT&nbsp; &nbsp;has&nbsp; &nbsp;proceeded&nbsp; &nbsp;on&nbsp; the&nbsp; &nbsp;basis&nbsp; &nbsp;that&nbsp; &nbsp;the respondent­bank is bound by the settlement amount of Rs.145 crores, and is entitled to future interest thereon at the rate of 9% per annum from&nbsp; 5th&nbsp; July,&nbsp; &nbsp;2012&nbsp; &nbsp;onwards&nbsp; &nbsp;till realization&nbsp; &nbsp;on&nbsp; &nbsp;the&nbsp; &nbsp;reducing&nbsp; &nbsp;balance,&nbsp; &nbsp;after taking&nbsp; &nbsp;into&nbsp; &nbsp;account&nbsp; &nbsp;the&nbsp; &nbsp;amount&nbsp; &nbsp;of Rs.152,81,07,159/­&nbsp; &nbsp;received&nbsp; &nbsp;during&nbsp; &nbsp;the pendency of the Original Application.&nbsp;<br>10. Aforesaid&nbsp; &nbsp;being&nbsp; &nbsp;the&nbsp; &nbsp;position,&nbsp; &nbsp;merelybecause the amount of Rs.152,81,07,159/­ was received by the respondent­bank before passing&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;final&nbsp; &nbsp;judgment,&nbsp; &nbsp;and&nbsp; &nbsp;not thereafter, would make no difference while considering the aspect of pre­deposit that the debtor,&nbsp; &nbsp;or&nbsp; &nbsp;the&nbsp; &nbsp;guarantor&nbsp; &nbsp;would&nbsp; &nbsp;have&nbsp; &nbsp;to deposit&nbsp; &nbsp;in&nbsp; &nbsp;terms&nbsp; &nbsp;of&nbsp; &nbsp;Section&nbsp; &nbsp;21&nbsp; &nbsp;of&nbsp; &nbsp;the aforesaid Act.”<br>12. The extracted portion indicates that the High Court has proceeded at a tangent while adverting to the aspect of recovery made towards the loan amount from the land acquisition&nbsp; &nbsp;compensation&nbsp; &nbsp;payable&nbsp; &nbsp;to&nbsp; &nbsp;respondent&nbsp; &nbsp;No.3. The&nbsp; &nbsp;conclusion&nbsp; &nbsp;appears&nbsp; &nbsp;to be&nbsp; &nbsp;that&nbsp; &nbsp;the&nbsp; &nbsp;receipt&nbsp; &nbsp;of&nbsp; &nbsp;the compensation amount even though was before passing of the decree, would wipe out the decretal amount of Rs.145 Crores with interest at 9% per annum, though it has not been expressly stated so. Per contra, the DRAT by its order dated 27.02.2019 while directing the pre­deposit of fifty per cent of the amount had taken note of the fact that if the decretal amount as ordered by the DRT is taken into consideration and the amount received by the Bank towards the compensation amount is credited, the balance of the decretal amount payable by respondents No.1 to 3 would work out to Rs.68,18,92,841/­ (Rupees Sixty Eight Crores Eighteen Lakhs Ninety Two Thousand and Eight Hundred Forty One). It is in that view, the DRAT has ordered pre­deposit of fifty per cent of the said amount which still remains to be a debt due. On that aspect,&nbsp; &nbsp;though&nbsp; &nbsp;the&nbsp; &nbsp;ultimate&nbsp; &nbsp;correctness of&nbsp; the actual amount due is a matter for calculation to be made in the execution proceedings, for the present, for the purpose of<br>pre­deposit if the decree/recovery certificate issued by the DRT is taken into consideration the position is clear that even if the amount of compensation is appropriated, either&nbsp; &nbsp;before&nbsp; &nbsp;or&nbsp; &nbsp;after&nbsp; &nbsp;the&nbsp; &nbsp;decree,&nbsp; &nbsp;there&nbsp; &nbsp;would&nbsp; &nbsp;still&nbsp; &nbsp;be outstanding amount payable which would be the subject matter of the appeal in DRAT, apart from the fact that the appellant Bank in their appeal are claiming the entire amount&nbsp; &nbsp;which&nbsp; &nbsp;has&nbsp; &nbsp;fallen&nbsp; &nbsp;due&nbsp; &nbsp;since&nbsp; &nbsp;the&nbsp; &nbsp;terms&nbsp; &nbsp;of settlement was not adhered to.&nbsp;<br>13. Thus, when&nbsp; prima facie&nbsp; it was taken note by the DRAT that further amount was due and the pre­deposit was ordered, without finding fault with such conclusion the&nbsp; &nbsp;High&nbsp; &nbsp;Court&nbsp; &nbsp;was&nbsp; &nbsp;not&nbsp; &nbsp;justified&nbsp; &nbsp;in&nbsp; &nbsp;setting&nbsp; &nbsp;aside&nbsp; &nbsp;the orders passed by the DRAT. As noted from the extracted portion of the order passed by the High Court, all that the High&nbsp; &nbsp;Court&nbsp; &nbsp;has&nbsp; &nbsp;concluded&nbsp; &nbsp;is&nbsp; &nbsp;that&nbsp; &nbsp;the&nbsp; benefit of the receipt of Rs.152,81,07,159/­(Rupees One Hundred Fifty Two Crores Eighty One Lakhs Seven Thousand and One Hundred&nbsp; &nbsp;Fifty&nbsp; &nbsp;Nine)&nbsp; &nbsp;as&nbsp; &nbsp;against&nbsp; &nbsp;the&nbsp; &nbsp;decretal&nbsp; &nbsp;amount cannot be denied though it was received before passing of the final judgment. Such conclusion in any event could not have tilted the balance in favour of the respondents No.1 and 2 to waive the entire pre deposit, unless the High Court had rendered a categorical finding that the entire decretal amount stands satisfied from such receipt and&nbsp; &nbsp;there&nbsp; &nbsp;was&nbsp; &nbsp;no&nbsp; &nbsp;debt&nbsp; &nbsp;due&nbsp; &nbsp;which&nbsp; &nbsp;in&nbsp; &nbsp;any&nbsp; &nbsp;event&nbsp; &nbsp;was beyond the scope of consideration in a petition of the present nature. On the other hand, as stated, the DRAT having taken note of the decretal amount, the receipt of the amount credited as compensation and, having further noted the debt is still due, has directed the pre­deposit limited to that extent.&nbsp;</h4><h4><font color=\"#ce0000\">14. Therefore, in the facts and circumstances arising herein,&nbsp; &nbsp;when&nbsp; &nbsp;further&nbsp; &nbsp;amount&nbsp; &nbsp;is&nbsp; &nbsp;due&nbsp; &nbsp;and&nbsp; &nbsp;payable&nbsp; &nbsp;in discharge of the decree/recovery certificate issued by the DRT in favour of the appellant/Bank, the High Court does not have the power to waive the pre­deposit in its entirety, nor can it exercise discretion which is against the mandatory requirement of the statutory provision as contained in Section 21, which is extracted above.&nbsp; In all cases fifty per cent of the decretal amount i.e. the debt due is to be deposited before the DRAT as a mandatory requirement, but in appropriate cases for reasons to be recorded the deposit of at least twenty ­five per cent of the debt due would be permissible, but not entire waiver. Therefore, any waiver of pre­deposit to the entire extent would be against the statutory provisions and, therefore, not sustainable in law.&nbsp; The order of the High Court is, therefore, liable to be set aside.&nbsp;</font><br></h4>', 'fef6bce1ffa1d84842e93d229c2e5e1e.jpg', 'ae166ea039d20b3f978f0a86b497e1b5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-16', 1, '', '', '2021-02-17 00:42:36', '2021-02-17 00:44:58'),
(468, 'GZTuV55HHfZEh3DVVu8CDd7fX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Education. Though the Court cannot pronounce upon the curriculum and pedagogy of any course as an expert it can certainly examine correctness of University stand that a student does not hold a qualification equivalent to a particular course. Supreme Court', '<h4>Kaloji Narayana Rao University of Health Sciences vs Srikeerti Reddi Pingle and others. <br>Civil Appeal 390 of 2021 decided on 16 February 2021<br>Justice L. Nageswara Rao and Justice S. Ravindra Bhat<br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/114/114_2021_38_1501_26229_Judgement_16-Feb-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/114/114_2021_38_1501_26229_Judgement_16-Feb-2021.pdf</a><br><font color=\"#ce0000\">Relevant paragraphs</font> 13. The respondent-student’s argument is twofold: one, that the letters of Conrad High School4 and the West Hartford Science Department Supervisor together with the certificate of the Telangana Intermediate Education Board, establish that she had successfully undergone a school certificate program, equivalent to the 10+2 qualification in India, and second, that the Advanced Placement (AP) course undertaken by her is equivalent to a first-year degree qualification in Biology. This court finds the submission insubstantial. <font color=\"#ce0000\">While the court cannot claim expertise and pronounce upon the curriculum and pedagogy of any course, much less the academic course which the student (in this case) qualified, what it can certainly do is examine whether the University’s stand that she does not hold a qualification equivalent to any of the five categories of qualifications spelt out [i.e., Regulation 4(2)(a) to (e)], or the sixth category [Regulation 4(2)(f)] is correct.</font><br>15. In the opinion of this court, there is a rationale and compelling logic on the part of the University to say that the candidate should have studied biology or biological sciences (apart from the other two science subjects, along with the further requirement of having studied English) in all the relevant years during the intermediate or at 10+2 level. Further, the reference to having studied in the first year in a degree course, at the college level with the said subject, carries with it, the implication that the student would have necessarily undergone academic study and training in the said three subjects at the 10+2 or intermediate level (without which, admission in a degree course is inconceivable in India).<br>22. For these reasons, this court is of the opinion that the interpretation placed upon the regulations in both the cited cases, by the Madras High Court, do not reflect the correct position. To be eligible, the candidate should produce clear and categorical material to show that she underwent the necessary years of study in all the stipulated subjects. This court is of the opinion that such stipulations are to be regarded as essential, given that the course in question, i.e., MBBS primarily if not predominantly, involves prior knowledge - both theoretical and practical, of senior secondary level in biology or biological sciences. <br>23. For the above reasons, this court is of the opinion that the impugned order cannot be sustained; it is, therefore, set aside. The appeal is allowed without order on costs</h4><div><br></div>', 'e1a13afb4ff9f319db1f8441945f3b3e.png', '9363cb57189c51eecab031cc5fc4fbef.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-16', 1, '', '', '2021-02-17 01:13:44', '2021-02-17 01:16:34'),
(469, 'coGvnxhgjM8qs1pbJdyk1OwvC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Public Sector Banks lending huge loans without adequate securities is a matter of great concern. Law makers and Reserve Bank of India must re-visit the lending guidelines and take necessary remedial measures. Karnataka High Court', '<h4>Dr. Bavaguthu Raghuram Shetty vs Bureau of Immigration and others. Writ Petition 15032/2020 decided on 12 February 2020.&nbsp;<br>Judgment Link: <a href=\"https://karnatakajudiciary.kar.nic.in/noticeBoard/WP-15032_2020.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/noticeBoard/WP-15032_2020.pdf&nbsp;</a><br>Petitioner, a non-resident Indian has presented thesetwo writ petitions challenging the Lookout Circulars (LOCs for short) issued by Bank of Baroda (\'BOB\' for short) and Punjab National Bank (\'PNB\' for short). Hence, they are disposed of by this common order:&nbsp;<br>13. Undisputed facts of the case are, BOB has lent about Rs.2,000 Crores and exposure of PNB is Rs.800 Crores. Petitioner is an Indian National. He claims that he ordinarily resides in the UAE. It is the admitted case of petitioner that the Companies in question were promoted by him and he was in-charge of them till he stepped down from the Managements between 2015 and 2017. It is also the admitted case of petitioner that default has occurred due to mismanagement of Companies by the present CEOs and CFOs<br><font color=\"#ce0000\">32. During the course of hearing, this Court called upon the learned advocates for the Banks to explain on what security the Banks permitted such large exposure. The answer given was, the Companies to which loans are advanced were \'listed companies\' in London Stock Exchange and the share value had shown that the said Companies had high net worth. Tangible assets, if any, mortgaged in favour of Banks and their valuation is not forthcoming. If Public Sector Banks are permitting such large exposure without adequate securities, it is a matter of great concern and it shall have serious adverse impact on the economy of this Country. It is time, the law makers and Reserve Bank of India re-visit the lending guidelines and the procedures and take necessary remedial measures to ensure that public money is well secured before disbursement.&nbsp;</font><br></h4><div><br></div>', 'e829c977e26f955b32300aee82d87806.jpg', '0853754a1aca7989ecef7294e09db8d6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-12', 1, '', '', '2021-02-17 01:32:22', '2021-02-17 01:35:03'),
(470, 'PZT7jLduDMFQCKiMc6ABsNYyf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suo Motu action regarding functioning of the Juvenile Justice Boards in the State. Karnataka High Court issues interim directions.  ', '<h4><h4>High Court of Karnataka vs The State of Karnataka and others. Writ Petition 10208 of 2018 dated 16 February 2021. Chief Justice Abhay S Oka and Justice S. Vishwajith Shetty</h4><p class=\"MsoNormal\"><o:p></o:p></p></h4><h4>Order Link: <a href=\"https://karnatakajudiciary.kar.nic.in/judgements/WP-10208.2018.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/WP-10208.2018.pdf</a></h4><h4>Accordingly, we issue further interim directions as under:<br>(i) The State Government shall ensure that all the JJBs are located in the premises as provided in sub-rule (1) of Rule 6 of the Model Rules;<br>(ii) The State Government shall prepare a uniform model design of the offices of JJBs, taking into consideration the requirements of the JJ Act and Model Rules and in particular, sub-rule (4) and (6) of Rule 6 of the Model Rules. In addition, the State Government shall formulate a uniform policy regarding the infrastructure to be provided to each JJBs and staffing pattern of each JJBs. The State Government shall do so, after holding consultation with all the stakeholders including KSLSA. The model design and policy regarding infrastructure  and staffing pattern shall be placed before the Court within a period of one month from today;<br>(iii) Till this Court passes final order regarding thestandard design and infrastructure, the State Government shall take all possible steps to provide proper infrastructure, staff and equipment to JJBs, as noted in Annexure-R6 to additional compliance memo dated 26th November, 2020. The State Government shall fix outer time limit for making compliance which shall be placed on record in the form of an affidavit within a period of one month from today;<br>(iv) The State Government shall place on record, within a period of one month from today, whether any steps have been taken by the State Commission for Protection of Child Rights for monitoring and implementation of the provisions of the JJ Act after taking into consideration the provisions of Rule 91 of the Model Rules. The steps taken by the State Commission for monitoring and implementation of the JJ Act shall be placed on record along with  compliance report within a period of one month from today;<br>(v) The State Government shall consider conducting social audit of the performance of the institutions under the JJ Act and implementation of the State policies regarding children;<br>(vi) The State Government shall report to this Court the steps taken for implementation of Rule-92 of the Model Rules, in the light of the discussion made in this order;<br>(vii) The State Government shall provide all the requisite infrastructure to each JJB for conduct of video conference hearing;<br>(viii) Compliance as aforesaid shall be reported within a period of one month from today.</h4><div><br></div><h4></h4>', 'beddb3686cd1e362d3be60b6e6a41483.PNG', 'bf4e86ebabf3f6f8cd2fd8f7f65a8c70.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-16', 1, '', '', '2021-02-17 01:56:32', '2021-02-17 02:11:04'),
(471, 'tXPJIl4693L2lWIQkSR9OCYww', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. Sudden fight resulting in death due to septicaemia. Culpable homicide not amounting to murder and culpable homicide amounting to murder discussed. On facts act of accused falls under Exception 4 to Section 300. Supreme Court', '<h4>Khokan @ Khokhan Vishwas vs State of Chhattisgarh. Criminal Appeal 121 of 2021 decided on 11 February 2021</h4><h4>Bench – Justice MR Shah and Justice Dr. Dhananjay Y Chandrachud<br>Author – Justice MR Shah<br><font color=\"#9c0000\">Judgment link -&nbsp;</font><a href=\"https://main.sci.gov.in/supremecourt/2019/31120/31120_2019_36_1502_26015_Judgement_11-Feb-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/31120/31120_2019_36_1502_26015_Judgement_11-Feb-2021.pdf</a><br><font color=\"#9c0000\">Issue involved – </font>Sudden fight between accused and deceased – deceased succumbing to abdominal injuries – Post mortem report records death on account of septicemia – Whether offence punishable with 302 IPC or 304 Part 1 IPC – Difference between culpable homicide not amounting to murder and culpable homicide amounting to murder discussed – On facts, held that act of accused falls under Exception 4 to Section 300 – Accordingly, sentence modified from Section 302 IPC to 304 Part I IPC<br>7. As observed hereinabove, the sole question which is posed before this Court is, whether, in the facts and circumstances of the case, can it be said that the accused committed the murder of the deceased as defined under Section 300 IPC and therefore whether both the courts below rightly convicted the accused for the offence under Section 302 IPC or whether the conviction can be altered to Section 304-I, IPC.<br>7.1………Section 300 of the IPC is in two parts. The first part is when culpable homicide can be said to be the murder and the second part is the exceptions when the culpable homicide is not murder. The relevant part of Section 300 IPC for our purpose would be clause 4 to Section 300 and exception 4 to Section 300 IPC. As per clause 4 to Section 300 IPC, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury, such culpable homicide can be said to be the murder. However, as per exception 4 to Section 300, culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. As per explanation to exception 4 to Section 300 IPC, it is immaterial in such cases which party offers the provocation or commits the first assault<br>8. ………………In the facts and circumstances of the case, it cannot be said that there was any intention on the part of the accused of causing bodily injury to the deceased and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death.&nbsp;<br>9. There is no evidence that there was any premeditation on the part of the accused. Considering the case of the prosecution as it is and as observed hereinabove, there was a sudden quarrel with respect to money and the accused pushed the deceased and stood on the abdomen in the heat of passion upon a sudden quarrel. Therefore, the case would fall under exception 4 to Section 300 IPC. As per explanation to exception 4 to Section 300 IPC, it is immaterial in such cases which party offers the provocation or commits the first assault. Therefore, both the courts below have materially erred in holding the appellant accused guilty for the offence punishable under Section 302 IPC. According to us, at the most, it can be said that the appellant-accused has committed the offence under Section 304-I IPC. </h4><h4><span style=\"font-style: italic;\">Compiled by Angad Kamat, Advocate, Bangalore&nbsp;</span></h4><p><br></p>', '9b9c6b2106c3a0d92fd47017c3d0241a.jpg', '9b67c353393eec55ef70394ae218b960.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-11', 1, '', '', '2021-02-17 02:26:14', '2021-02-17 02:27:43'),
(472, 'QTSZ4FbqFJkdiMqSwv9XKJ5fy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. Grant of leave to compound offence is neither automatic nor to be accepted mechanically by courts. Duty cast on court to look into the nature of offence and evidence to satisfy itself whether permission should be granted. Supreme Court', '<h4><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\">Pravat Chandra Mohanty v. State of Odisha. Criminal Appeal 125 of 2021 (arising out of SLP (Crl.) 6174 of 2020 decided on 11 February 2021</span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\">Bench – Justice Ashok Bhushan &amp; Justice Ajay Rastogi</span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\">Author – Justice Ashok Bhushan</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Judgment link - </span><a href=\"https://main.sci.gov.in/supremecourt/2020/26261/26261_2020_37_1501_26066_Judgement_11-Feb-2021.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">https://main.sci.gov.in/supremecourt/2020/26261/26261_2020_37_1501_26066_Judgement_11-Feb-2021.pdf</a></div><font color=\"#ce0000\"><div style=\"text-align: justify;\"><font color=\"#ce0000\" style=\"font-size: 1.3125rem;\">Issue involved – </font><span style=\"font-size: 1.3125rem; color: rgb(0, 0, 0);\">Accused charged with Section 324 IPC among other offences – Pending appeal, parties have resolved to compound the offence under Section 324 – But composition of offence could not be allowed without leave of court as per Section 320 (5) CrPC – Guiding principles for exercise of discretion as regards composition of offence discussed.&nbsp;</span></div></font><font color=\"#ce0000\"><div style=\"text-align: justify;\"><font color=\"#ce0000\" style=\"font-size: 1.3125rem;\">Held –&nbsp;&nbsp;</font><span style=\"font-size: 1.3125rem; color: rgb(0, 0, 0);\">Grant of leave for compounding of offence is neither automatic nor is to be accepted mechanically by courts in a case where victim has accorded consent to composition of offence. Duty cast on court to look into the nature of offence and evidence on record to satisfy itself whether permission should be granted. On facts, leave not granted despite both parties agreeing to compound the offence.&nbsp;</span></div></font><font color=\"#ce0000\"><div style=\"text-align: justify;\"><font color=\"#ce0000\" style=\"font-size: 1.3125rem;\">Relevant paragraphs –</font><span style=\"font-size: 1.3125rem; color: rgb(0, 0, 0);\">&nbsp;28. The present is a case where accused has already been convicted for offence under Section 324 IPC. By Cr.P.C. (Amendment) Act, 2005, offence under Section 324 IPC has been made non-compoundable offence. Prior to the aforesaid amendment, offence under Section 324 was compoundable. Learned counsel for the appellants is right in his submissions that on the date when offence was committed, i.e., 04/05.05.1985, the offence under Section 324 IPC was compoundable. We, thus, need to examine as to whether in the present case, the request of the appellants to which learned counsel appearing for the legal representative of the deceased have also agreed need to be accepted and this Court may permit compounding of offence under Section 324 IPC</span></div></font><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">29. The offence under Section 324 in the facts of the present case can be compounded only with permission of the Court. Sub-Section (5) of Section 320 provides that 24 “no composition for the offence shall be allowed without the leave of the Court.” Thus, the composition of the offence in the facts of the present case is not permissible only on the agreement on the request of the appellant which may be also accepted by the legal heirs of the deceased but composition is permissible only by the leave of the Court</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">30. The grant of leave as contemplated by sub-section (5) of Section 320 is not automatic nor it has to be mechanical on receipt of request by the appellant which may be agreed by the victim. The statutory requirement, makes it a clear duty of the Court to look into the nature of the offence and the evidence and to satisfy itself whether permission should be or should not be granted. The administration of criminal justice requires prosecution of all offenders by the State</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">31. The prosecution by the State is the policy of law because all the offences are against the society. The offenders have to bring to the Courts and punish for their offences to maintain peace and order in the society. It is the duty of the prosecution to ensure that no offender goes scot-free without being punished for an offence. It is also the settled principle of law that innocent should not be punished.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">32. The question arises as to while granting leave of the Court for composition of offence, what is the guiding factor for the Court to grant or refuse the leave for composition of offence. The nature of offence, and its affect on society are relevant considerations while granting leave by the Court of compounding the offence. The offences which affect the public in general and create fear in the public in general are serious offences, nature of which offence may be relevant consideration for Court to grant or refuse the leave. When we look into the conclusion recorded by the trial court and the High Court after marshalling the evidence on record, it is established 26 that both the accused have mercilessly beaten the deceased in the premises of the Police Station. Eleven injuries were caused on the body of the deceased by the accused. As per the evidence of PW-1, which has been believed by the Courts below, the victim was beaten mercilessly so that he passed on, stool, Urine and started bleeding.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">36. Present is a case where the offence was committed by the in-charge of the Police Station, Purighat, as well as the Senior Inspector, posted at the same Police Station. The Police of State is protector of law and order. The people look forward to the Police to protect their life and property. People go to the Police Station with the hope that their person and property will be protected by the police and injustice and offence committed on them shall be redressed and the guilty be punished. When the protector of people and society himself instead of protecting the people adopts brutality and inhumanly beat the person who comes to the police station, it is a matter of great public concern. The beating of a person in the Police Station is the concern for all and causes a sense of fear in the entire society</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">37. We may refer to the judgment of this Court in Yashwant and others vs. State of Maharashtra, (2019) 18 SCC 571, where this Court laid down that when the police is violator of the law whose primary responsibility is to protect the law, the punishment for such violation has to be proportionately stringent so as to have effective deterrent effect and instill confidence in the society. Following was laid down in paragraph 34: -&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">“34. As the police in this case are the violators of law, who had the primary responsibility to protect and uphold law,&nbsp; thereby mandating the punishment for such violation to be proportionately stringent so as to have effective deterrent effect and instill confidence in the society. It may not be out of context to remind that the motto of Maharashtra State Police is “Sadrakshnaya Khalanighrahanaya” (Sanskrit: “To protect good and to punish evil”), which needs to be respected. Those, who are called upon to administer the criminal law, must bear, in mind, that they have a duty not merely to the individual accused before them, but also to the State and to the community at large. Such incidents involving police usually tend to deplete the confidence in our criminal justice system much more than those incidents involving private individuals. We must additionally factor this aspect while imposing an appropriate punishment on the accused herein.”&nbsp;</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">38. The observations as quoted above are fully attracted in the facts of the present case. We, thus, are of the considered opinion that present is a case where this Court is not to grant leave for compounding the offences under Section 324 IPC as prayed by the counsel for the appellants. The present is a case where the accused who were police officers, one of them being in-charge of Station and other Senior Inspector have themselves brutally beaten the deceased, who died the same night. Their offences cannot be compounded by the Court in exercise of Section 320(2) read with subsection (5). We, thus, reject the prayer of the appellants to compound the offence.</span></div></h4><h4 style=\"text-align: justify;\"><i>Compiled by Angad Kamat, Advocate, Bangalore&nbsp;</i></h4><div style=\"text-align: justify;\"><br></div>', '7559244908ad9a8344677cd8c43258f0.jpg', '543dcb8d2db934b68ff3d775f1c71147.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-11', 1, '', '', '2021-02-17 02:53:30', '2021-02-17 17:56:36');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(473, '4Fr1HKyOFSNfTvWyZDFv2An4I', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Conditional decree for specific performance. Conditions not fulfilled by plaintiff. Results in automatic dismissal of the suit itself. Court has the power to extend time.  But if the plaintiff commits repeated defaults the decree is lost. Supreme Court. ', '<h4><i style=\"background-color: rgb(255, 255, 0);\">Full Judgment. (See para 12 to 15)</i></h4><h4><span style=\"color: rgb(206, 0, 0);\">Head-note: </span>Suit for specific performance. Conditional decree. Conditions not fulfilled by the plaintiff. Results in automatic dismissal of the suit itself. Though the Court has the power to extend time if the plaintiff commits repeated defaults, the decree is lost. Supreme Court </h4><h4>IN THE SUPREME COURT OF INDIA <br>P.R. Yelumalai vs N.M. Ravi <br>Civil Appeal No. 3213 of 2015† decided on 27 March, 2015<br>Justice Jasti Chelameswar and Justice Pinaki Chandra Ghose<br>Reported in (2015) 9 SCC 52.<br>Justice Pinaki Chandra Ghose.— Leave is granted in both the matters. These cross-appeals have been filed against the judgment and order dated 22-8-2011 passed by the High Court of Karnataka at Bangalore in P.R. Yelumalai v. N.M. Ravi1, whereby and whereunder the High Court of Karnataka has set aside the order dated 15-2-2007 passed by the trial court in OS No. 439 of 2006 and remitted the matter to the trial court for disposal afresh in accordance with law.<br>2. The factual background of the case is that on 4-8-2006, one P.R. Yelumalai, who is the appellant in the first appeal, entered into an agreement of sale with N.M. Ravi, the respondent in the first appeal, who is the absolute owner of the property. The total consideration for the sale was Rs 41,60,000, out of which a sum of Rs 8 lakhs was paid as advance money towards the total consideration amount. Thereafter, the seller vide legal notice dated 4-9-2006 sought to cancel the agreement of sale which was refused by the buyer. This led to filing of a suit for specific performance of the contract by the buyer P.R. Yelumalai (hereinafter referred to as “the plaintiff buyer”), before the IInd Additional Civil Judge (Senior Division), Kolar, being OS No. 439 of 2006. The seller N.M. Ravi (hereinafter referred to as “the defendant seller”) conceded to the plaintiff buyer’s prayer for performance of the said agreement stating that he had no objection to the court decreeing the suit in favour of the plaintiff buyer. Accordingly, the suit was decreed on 15-2-2007 and the plaintiff buyer was directed to deposit the balance sale consideration of Rs 33,60,000, by way of demand draft, in court within one month from the date of decree and the defendant seller was directed to execute regular sale deed in favour of the plaintiff buyer, within three months from the date of decree. It was made clear by the trial court in the decree that if the balance amount of sale consideration is not deposited within one month from the date of decree, the suit shall be deemed to have been dismissed.<br>3. The plaintiff buyer did not deposit the said amount within one month as stipulated in the decree but he filed an application for extension of time for depositing the amount of balance sale consideration and vide order dated 17-3-2007, the Additional Civil Judge (Senior Division) extended the time by two months. After the extension order, the last date for deposit of the amount fell during the summer vacation of the court. The plaintiff buyer did not deposit the said amount even on the reopening day after summer vacation i.e. 28-5-2007. But allegedly, he filed a memo for issue of receipt order (RO) for depositing the said amount. However, as per the records, the RO was issued on 29-5-2007 and the amount was deposited on the same day by cash.<br>4. Admittedly, the defendant seller was not served with a copy of the memo and was not notified with regard to the alleged deposit. The defendant seller sold the property in question to Shri Rajesh on 20-6-2007, under a registered sale deed. The plaintiff buyer filed Execution Petition No. 88 of 2008 on 17-3-2008 in the Court of IInd Additional Civil Judge (Senior Division), which was dismissed on 20-10-2008.<br>5. The IInd Additional Civil Judge observed as follows:<br>“7. It is also the contention of J.Dr. that there is no evidence that D.Hr. has deposited the balance consideration on 29-5-2007. Therefore, records in OS No. 439 of 2006 were secured by the court and on perusal of the same, it is revealed that in the order-sheet after 170 of 2007 there is an endorsement of the office that consideration amount of Rs 33,60,000.00 is deposited under J.D. No. 177 of 2007 (RO No. 295806) dated 29-5-2007 and the same endorsement is found in the certified copy of the order-sheet produced by D.Hr. in this case. However, the counsel for J.Dr. argued that he has also obtained copy of the order-sheet and in his order-sheet in OS No. 439 of 2006 said endorsement is not there and therefore, he impliedly contended that endorsement has been subsequently got written in the order-sheet. However, when there is no allegation made against the court officials  merely because the endorsement was written in the order-sheet after the certified copy of the order-sheet in OS No. 439 of 2006 was issued to J.Dr. it does not mean that endorsement is correct. Further, it is seen that J.Dr. has produced the copy of the order-sheet obtained by him in this case and perusal of the same reveals that he has applied for the copy on 29-5-2007 and obtained it on the same day. Therefore, there is all the chance that after issuance of the certified copy of J.Dr. the deposit of amount may be noted in the order-sheet on the same date, but after issue of certified copy of J.Dr.<br>8. It is also the contention of J.Dr. that even if it is presumed that vacation period has to be excluded by calculating the extended period of 2 months, then D.Hr. was required to deposit the balance consideration on 28-5-2007 as that was the reopening day for the civil courts. A perusal of the calendar of 2007 does reveal that reopening day was 28-5-2007 and not on 29-5-2007 as contended by D.Hr.<br>9. Thus, D.Hr. is entitled for seeking exclusion of vacation period while calculating the extended period of 2 months of deposit of balance consideration. Admittedly, the judgment was passed on 15-2-2007. However, a perusal of order dated 15-2-2007 makes it clear that period of 1 month given to plaintiff/D.Hr. to deposit the balance consideration starting from the date of decree and not from the date of order dated 15-2-2007, because order clearly states that DD of Rs 33,60,000.00 will have to be deposited within one month from the date of decree. Further, order-sheet in OS No. 439 of 2006 makes it clear that decree is signed on 27-2-2007. Therefore, initially the period of one month started from 27-2-2007 and ended on 26-3-2007 and since period was extended for 2 months on 17-2-2007 normally last date for deposit of balance consideration fell on 26-5-2007 and the civil court was not working on 26-5-2007 and next date i.e. 27-5-2007 was Sunday.<br>10. Hence, D.Hr. was required to deposit the balance consideration on 28-5-2007, which was the reopening day. However, to show that he made efforts to deposit the balance consideration on 28-5-2007 and made an application for issue of RO on 28-5-2007 itself there is no material placed before the court by D.Hr. Hence, as the endorsement on the order-sheet in OS No. 439 of 2006 reveals that RO is dated 29-5-2007 and deposit is made on 29-5-2007 it is clear that even though D.Hr. was required to make the deposit on the reopening day i.e. 28-5-2007, he has failed to do so and has deposited it only on the next day….”<br>6. The aforesaid order of dismissal passed by the trial court on 20-10-2008 in Execution Petition No. 88 of 2008, was challenged by the plaintiff buyer before the Karnataka High Court by filing Writ Petition No. 13541 of 2008. The High Court of Karnataka did not find any error in the order passed by the executing court and dismissed the writ petition on  7-1-20102. However, it permitted the plaintiff buyer to move the court which had passed the decree, for seeking extension of time in depositing the amount of balance sale consideration.<br>7. On 10-2-2010, the plaintiff buyer filed an application under Section 148 of the Code of Civil Procedure (“CPC”, for short) for extension of time till 29-5-2007. The Additional Civil Judge (Senior Division) vide order dated 15-2-2010, rejected the application for extension of time on the following reasoning:<br>“Whereas the order of this Court itself is very clear, that the plaintiff has to deposit the balance amount within two months from the date of its order. Under the said circumstances the plaintiff need not wait till last date, knowing the said day is vacation. Further, the plaintiff has taken chance to deposit on reopening day, where he could not deposit, but deposited on the next day without seeking further extension of time according to his whims and fancies. Further, the plaintiff has not placed any materials to show that he had approached the court on 28-8-2007. But the order-sheet at p. 8, reveals that consideration amount of Rs 33,60,000 is deposited under J.D. No. 170 of 2007 (RO No. 0295806 dated 29-5-2007). Hence, from the said order-sheet, it is clear that the plaintiff has approached the court on 29-5-2007 i.e. the very next day of reopening day, where there is a delay of one day in depositing of consideration amount.<br>Further, the order of the Hon’ble High Court in P.R. Yelumalai v. N.M. Ravi2 is dated 7-1-2010. Whereas the Hon’ble High Court of Karnataka held that the trial court shall pass appropriate orders within one week thereof. But on perusal of the said orders it reveals that the plaintiff had applied for copy of the said order on 4-2-2010 and obtained copy on 5-2-2010 and appeared before this Court with the said orders on 10-2-2010 and filed the present application for extension of time to deposit the balance sale consideration amount. But the plaintiff instead of filing the present application within one week from the date of order of Hon’ble High Court, he has filed the present application on 10-2-2010 where there is a delay of more than three weeks in filing the present application. Though the plaintiff is aware of the order of the Hon’ble High Court on 7-1-20102, but he has not applied for certified copy of the said orders on same day. But he has applied for the copy of the said order after lapse of one month which is also delayed by one month. Therefore, under the said circumstances, the plaintiff has not made out any grounds to allow the said application for extension of time to deposit the balance sale consideration amount of Rs 33,60,000.<br>Thus, under the said circumstances the application filed by the plaintiff under Section 151 CPC is hereby rejected with costs.”<br>8. Aggrieved by the said order dated 15-2-2010, the plaintiff buyer again filed a writ petition before the Karnataka High Court, being Writ Petition No. 6449 of 2010. The High Court remanded the matter to the trial court by formulating four questions to be answered by it, which were:<br>(i) whether the amount deposited on 29-5-2007 amounts to a deemed extension of time and a valid deposit;<br>(ii) whether one Rajesh who has purchased the property is a notified purchaser;<br>(iii) whether the appellant is entitled to extension of time when third-party interest is created; and<br>(iv) whether the suit stood dismissed on 28-5-2007 or earlier when the amount was not deposited in terms of the decree.<br>The High Court directed the trial court to dispose of the matter within two months from the date of receipt of the order.<br>9. Aggrieved by the order of remand passed1 by the Karnataka High Court, the parties are before us.<br>10. The learned counsel for the plaintiff buyer contended that this is not a proper case to be remanded back to the trial court for fresh consideration and the High Court should not have remanded the case. He further contended that Execution Case No. 88 of 2008 was solely dismissed on the ground of one day’s delay although there were valid reasons for the alleged delay. He further contended that the High Court failed to appreciate that the request for issue of receipt order (RO) on the reopening day, is deemed compliance with limitation period as provided in Section 4 of the Limitation Act and, hence, the High Court directed the plaintiff buyer to file an application for extension of time by a single day. This request of the plaintiff buyer to issue the RO on reopening day is to be construed as deemed compliance under the Limitation Act read with Section 28(6) of the Karnataka Civil Courts Act, 1964. The learned counsel for the plaintiff buyer also contended that the trial court also failed to consider the matter on merits in OS No. 439 of 2006 and dismissed the application for extension of time solely on technical ground, and in contravention of Section 5 of the Limitation Act. According to the learned counsel, in view of Section 5 of the Limitation Act, both the trial court and the High Court erred in not condoning the delay from 7-1-2010 to 10-2-2010 in filing the application for extension of time before the trial court. Further, the learned counsel argued that the acceptance of deposit of money by the Court on 29-5-2007, in itself amounted to implied grant of extension of time by the Court. In support of the said contention, he relied on Mohd. Alimuddin v. Waizuddin3. He also submitted that the procedure should only be an aid to achieve justice and procedural technicalities should not be used to abuse the process of law. On the point of the third-party interest being created in the suit property, he submitted that the purchaser (Shri Rajesh) of the suit property is not a bona fide purchaser. Alternatively, he argued that the concept of bona fide purchaser does not find relevance when the principles of  lis pendens apply. He submitted that as per Section 52 of the Transfer of Property Act, 1882, no transfer of any immovable property during the pendency of any suit or proceeding in relation to that property can take place except with the authority of the court in which such suit or proceeding is pending. On the basis of these submissions, he contended that the title of the purchaser as per sale deed dated 20-6-2007 is defective as against him.<br>11. The learned counsel for the defendant seller, on the other hand, contended that under Section 28(1) of the Specific Relief Act read with Section 151 CPC, the trial court alone has power to extend the time to satisfy the conditional decree. When the trial court had exercised its discretion and granted extension of two months’ time for making payment of the balance consideration amount, even then the plaintiff buyer failed to pay on time and in the prescribed mode. In addition to this, the counsel for the defendant seller contended that the plaintiff buyer has not given notice to the respondent of delayed payment by cash. The defendant seller had no notice of delayed payment by cash. The learned counsel submitted that as per Order 21 Rule 2 CPC, the judgment-debtor is required to give notice to the decree-holder of the deposit of any money in court. He contended that in the present case, even though the plaintiff buyer is a decree-holder, yet the obligation of notice would apply to him also. In the absence of this notice, the learned counsel contended that the defendant seller was in his right to sell the property to a third party. He further reinforces the justification for sale deed dated 20-6-2007 by pointing out that the decree in this case was a conditional one and self-operative in case of non-compliance. Since the decree clearly mentioned that if the amount of balance consideration is not deposited within the period stipulated therein, the suit shall be deemed to have been dismissed. The plaintiff buyer lost his right under the decree as soon as the time granted under the decree expired by not complying with the decree. The learned counsel further argued that the mode of deposit of the amount was not in terms of the decree as the amount was deposited in cash while the decree required the deposit to be made in the form of demand draft. Thus, the learned counsel submitted that the plaintiff buyer had completely failed to obey the commands in the decree.<br>12. Arguments were also made by the learned counsel on both sides as to which court had the power to grant extension of time and several authorities were cited on this point. However, we find that after the executing court had dismissed the execution proceeding on the ground of delay in depositing the amount, the same question was dealt with by the original side of the trial court as well in the application for extension of time. Since both the courts have given concurrent findings that the case for extension of time was not made out, we are of the opinion that dealing with the question as to which court had the jurisdiction to decide this point, will be an exercise in futility. It would suffice to say that the court has the discretion to extend the time upon an application made by the party required to act within a stipulated time period. Extension of time can be granted even after the expiry of the period originally fixed. In Johri Singh v. Sukh Pal Singh4 this Court observed: (SCC p. 415, para 18)<br>“18. This section empowers the court to extend the time fixed by it even after the expiry of the period originally fixed. It by implication allows the court to enlarge the time before the time originally fixed. The use of the word ‘may’ shows that the power is discretionary, and the court is, therefore, entitled to take into account the conduct of the party praying for such extension.”<br>13. From a perusal of the judgment and decree dated 15-2-2007 passed by the trial court, it is clear that the period of one month granted for depositing the balance consideration started from the date of decree. From the records it appears that the decree was signed on 27-2-2007. Therefore, the period of one month started from 27-2-2007 and ended on 26-3-2007. After extension of two months was granted, the last date for depositing the amount of balance consideration fell on 26-5-2007. As the civil court was not working on 26-5-2007 and next date i.e. 27-5-2007 was Sunday, the plaintiff buyer was to deposit the amount on 28-5-2007, which was the reopening day. However, there is no evidence on record to show that he made efforts to deposit the balance consideration on 28-5-2007 or made an application on 28-5-2007. The RO is dated 29-5-2007 and deposit was made on 29-5-2007. Thus, the plaintiff buyer failed to comply with the decree and the suit stood dismissed automatically.<br>14. The trial court rightly held that the decree-holder did not make the deposit within the time stipulated by the court nor the deposit of the balance consideration was made through the mode as stipulated by the court, and that being the case, the suit will have to be deemed as dismissed. The trial court further held that the decree-holder is not entitled to seek execution of decree, which does not exist in the eye of the law and consequently the trial court dismissed the execution petition. Further, we have already discussed the order of the trial court in the application for extension of time and we do not take the contention of the plaintiff buyer that the application was dismissed solely on the technical ground and that the application was filed after a delay of 3 weeks. The trial court has discussed full merits of the application and given a finding that there is no evidence to show that the plaintiff had made any effort to deposit the amount on 28-5-2007. The application was dismissed on its merits and not merely on the technical grounds. Further, we accept the submission of the learned counsel for the defendant seller that the plaintiff buyer had even failed to make the deposit through the mode of payment as required by the decree.<br><span style=\"color: rgb(206, 0, 0);\">15. Having given the above findings, the obvious corollary is that since the plaintiff buyer failed to comply with the terms of the decree, the suit stood dismissed as the order passing the decree was a peremptory order. In light of this, we do not find it necessary to address the arguments made by the counsel on the point of bona fide purchaser. Further, the contention that the acceptance of deposit made by the plaintiff buyer on 29-5-2007 is an implied grant of extension of time, is a misplaced one. Reliance cannot be placed on Mohd. Alimuddin v. Waizuddin3 as in that case there was an application for extension of time which was granted, though at the risk of the depositor, along with the deposit of amount. This Court in the said case held that when the Court had allowed the application for extension of time in its wisdom, there was no reason to disturb it later. In the present case, there is rather a reverse situation wherein the trial court has dismissed the application for extension of time giving due reasons. In view of the above findings, the question as to whether the plaintiff buyer was required to give notice of the amount deposited also need not be answered, although we believe that had the plaintiff buyer, irrespective of any obligation under law, given notice of the deposit made to the defendant seller it would have helped the case of the plaintiff buyer.</span><br><span style=\"color: rgb(206, 0, 0);\">16. Thus, in the present case, the plaintiff buyer has clearly defaulted on time of depositing as well as the mode of payment. The decree was self-operative and the suit stood dismissed for non-compliance with the decree. Further, the plaintiff buyer also failed to make out a case for condonation of delay. In view of these findings, we are of the opinion that the questions formulated by the High Court in the order of remand are not required to be answered by the trial court. Consequently, the appeal filed by the plaintiff buyer is dismissed and the appeal filed by the defendant seller is allowed. There shall be no order as to costs.</span><br>———<br>†<span style=\"white-space:pre\">	</span>Arising out of SLP (C) No. 5840 of 2012. From the Judgment and Order dated 22-8-2011 of the High Court of Karnataka at Bangalore in WP No. 6449 of 2010, 2011 SCC OnLine Kar 4011<br>‡<span style=\"white-space:pre\">	</span>Arising out of SLP (C) No. 10852 of 2013<br>1<span style=\"white-space:pre\">	</span>WP No. 6449 of 2010, decided on 22-8-2011 (KAR), 2011 SCC OnLine Kar 4011<br>2<span style=\"white-space:pre\">	</span>P.R. Yelumalai v. N.M. Ravi, WP No. 13541 of 2008, order dated 7-1-2010 (KAR)<br>3<span style=\"white-space:pre\">	</span>(1998) 9 SCC 108<br>4<span style=\"white-space:pre\">	</span>(1989) 4 SCC 403<br><br></h4><p><br></p>', '1de5ee10295474abc9c8278932d447b5.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2015-03-27', 1, '', '', '2021-02-17 17:28:01', '2021-02-17 17:33:47'),
(474, 'RFvBnMiGoOGdObMUS3z9lA7ys', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Transposition of Defendant as Plaintiff. Filing of counterclaim by defendant is not a condition for transposition. What is required for transposition is not the Counterclaim but an identity of interest. Karnataka High Court.', '<h3><span style=\"font-size: calc(1.275rem + 0.3vw); font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">B.M.Devaiah vs C.P. Muthanna.&nbsp;</span></h3><h3><span style=\"font-size: calc(1.275rem + 0.3vw); font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Writ Petition 51356/2016 decided on 15 February 2021. </span></h3><h3><span style=\"font-size: calc(1.275rem + 0.3vw); font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Justice Krishna S. Dixit.</span><br></h3><h4><br></h4><h4>4(c) The vehement contention of learned counsel for the respondent-plaintiff that it is his suit and therefore as&nbsp; a dominant litus he can withdraw the same and that a defendant in the absence of a Counterclaim cannot seek transposition as plaintiff, is bit difficult to countenance; the provisions of Order XXIII Rule 1A r/w Order I Rule 10 give a substantive right to a&nbsp; defendant to seek&nbsp; transposition&nbsp; when&nbsp; the original plaintiff wants to withdraw the suit or abandon the suit claim; the said provision reads as under:<br></h4><h4>“When transposition of defendants as plaintiffs may be permitted.- Where a suit is withdrawn or abandoned by a plaintiff under rule 1, the Court&nbsp; shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any&nbsp; of the other defendants.”<br>The text &amp; context of the above provision does not even remotely suggest that a Counterclaim is a sine qua non for its invocation; had it been the intent of the law maker, the text of the said provision would have been a bit different and would have given an indication to that effect. The heavy reliance placed by learned counsel Sriranga on Patna High Court decision in Durga Prasad vs Lal Babu Saha 1984 SCC Online Patna 122 does not much come to his rescue; the said decision appears to have been rendered in the fact matrix of that case which is miles away from the one in the case at hands; this apart, the argued ratio of the said decision does not appear to cotton with the observations of the Apex Court in R Dhanasunari vs. A N Umakanth, 2019 SCC OnLine SC 331.<br></h4><h4>4(d) The Apex Court in Dhanasundari supra, having scanned the provisions of Order XXIII Rule 1A, has observed at para 11 as under:<br></h4><h4>“As per Rule 1-A ibid., in the eventuality of plaintiff withdrawing the suit or abandoning his claim, a pro forma defendant, who has a substantial question to be decided against the co-defendant, is entitled to&nbsp; seek his transposition as&nbsp; plaintiff&nbsp; for determination of such a question against the said co-defendant in&nbsp; the given suit itself. The very nature of the provisions contained in Rule 1-A ibid. leaves nothing to doubt that the powers of the Court to grant such a prayer&nbsp; for transposition are very wide and could be&nbsp; exercised for effectual and comprehensive adjudication of all the matters in controversy in the suit. The basic requirement for exercise of powers under Rule 1-A ibid. would be to examine if the plaintiff is seeking to withdraw or to abandon his claim under Rule 1 of Order XXIII and the defendant seeking transposition is having an interest in the subject-matter of the suit and thereby, a substantial question to be adjudicated against the other defendant. In such a situation, the pro forma defendant is to be allowed to continue with the same suit as plaintiff, thereby averting the likelihood of his right being defeated and also obviating the unnecessary multiplicity of proceedings.”&nbsp;<br></h4><h4>The Apex Court has made the above observations in affirming&nbsp; the decision of the Madras High Court in R Dhanasundari vs. A N Umakanth, 2006 SCC OnLine Mad 913; para 14 which treated the question at hands is as follows:<br>“From a perusal of the Rule and the ratio laid down in the aforesaid decision of this Court, the following tests appear to hold the field, in deciding the right&nbsp; of a defendant to transpose himself as a plaintiff:<br>(a) Whether the defendant who seeks transposition has substantial question to be decided?<br>(b) Whether such substantial question has to be decided against any of the other defendants?<br>(c) Whether the&nbsp; defendant&nbsp; seeking transposition has an identity of interest along with the plaintiff as against other defendants?<br>(d) Whether the success of the plaintiff would result in the automatic success&nbsp; of&nbsp; the&nbsp; defendant who seeks transposition?<br>(e) Whether the withdrawal or abandonment by the plaintiff, of the Suit, results in some vested right of the defendant getting defeated?<br>The above tests are only illustrative and not exhaustive.”<br></h4><h4><font color=\"#9c0000\">The observations of the Apex Court and of the Madras High Court show that what is required for transposition is not the Counterclaim but an identity of interest, which in the instant case galores in the record of the suit proceedings.</font><br></h4><h4>4(e) The contention that first respondent has filed a kindred &amp; comprehensive suit in O.S.No.557/2012 wherein petitioner happens to be the first defendant, is true; but, the transposition sought for by the petitioner is in the suit&nbsp; of&nbsp; 1986 in which, already there is a Preliminary Decree which is acted upon by the parties, materially altering their positions; there are several subsequent orders made therein whereby vested rights have been created in favour of the petitioner qua the respondent-defendant; that is the reason why the legal battle had reached the floor of the Apex Court too and the respondent-defendant having fought fiercely, lost it; the other suit is filed almost a quarter century after the first one was instituted; transposition which is a substantive right of a defendant in a suit of the kind cannot be cut short on the ground that he has been made a defendant in some other suit and that he should work out his remedy there; such a contention does not fit into even the penumbra of the provisions of Order XXIII Rule 1A; far from that, it militates against the intent of the said provisions, to say the least, and therefore cannot be countenanced; whatever stand the petitioner as the defendant has to take in&nbsp; the&nbsp; subsequent&nbsp; suit, is for him to take there; so is also with the plaintiff in the said suit; however, what has been brought about by fighting the litigation for three decades &amp; more, cannot be&nbsp; permitted to be wiped out by conceding to the request of the respondent-plaintiff to withdraw the suit itself followed by the denial of petitioner’s request for transposition as plaintiff; a just formula has to be worked out by judicial ingenuity whereby the original plaintiff is permitted to exit from the suit fray and the defendant having identifiable interest is&nbsp; permitted to don the mantle of the plaintiff so that the&nbsp; judicial process is not used as an instrument of fraud; after all, a case is fought in the Courts for the purpose of reaping the usufructs of its end product within the framework of law.<br>4 (f) Learned advocates appearing for the petitioner and the respondent-defendant signified their consent for the exit of the respondent-plaintiff from the suit fray and therefore the application seeking withdrawal of the suit having been&nbsp; suitably allowed, the 2nd respondent is permitted to withdraw himself from the suit proceedings; however, this has to&nbsp; be with the transposition of the petitioner so that the said proceedings would continue; since the transposition is being sanctioned, it is open to the petitioner to amend his Pleadings/Written Statement which entail on transposition so that the purpose of transposition becomes meaningful &amp; productive; this course would silence the vehement&nbsp; contention of learned counsel Mr.Sriranga as to alleged absence of identity of petitioner’s interest with the outgoing plaintiff as against the respondent-defendant; this would facilitate for prosecution of the suit and other off-shoot proceedings; it hardly needs to be stated the request for such amendments shall be treated by the learned Judge of the&nbsp; Court below with due leniency and in accordance with law.&nbsp;<br>In the above circumstances, this writ petition succeeds; impugned order is invalidated; the learned Trial Judge is requested to permit transposition of the petitioner as the plaintiff in the subject suit and if necessary, permit him to suitably amend his Written Statement for facilitating prosecution of the suit; the respondent-plaintiff shall be permitted to exit from the suit fray in terms of his pending application in this regard; such exit shall not in&nbsp; any&nbsp; way&nbsp; affect the rights of all other parties to the suit and other relative proceedings, in any way.<br></h4>', '5c0ca399da9af26b7564bc219181f46b.jpeg', '8f450716bd28e4f54db7d015a79e952e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-17', 1, '', '', '2021-02-18 02:44:16', '2023-01-17 17:56:03'),
(475, 'qMev2UjbxL3QgNYkx33D6pHgI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Compromise Decree. A consent decree would not serve as an estoppel where the compromise was vitiated by fraud misrepresentation or mistake. Supreme Court. ', '<h4>Compromise Decree. A consent decree would not serve as an estoppel where the compromise was vitiated by fraud misrepresentation or mistake. Supreme Court.&nbsp;</h4><h4>Compack Enterprises India (P) Ltd. vs Beant Singh. Special Leave Petition 2224- ­2225 of 2021 decided on 17 February 2021. Justice Mohan M. Shantanagoudar and Justice Vineet Saran Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2019/38441/38441_2019_40_1502_26201_Judgement_17-Feb-2021.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">https://main.sci.gov.in/supremecourt/2019/38441/38441_2019_40_1502_26201_Judgement_17-Feb-2021.pdf</a></h4><h4><font color=\"#ce0000\">Relevant paragraphs:&nbsp;</font>18.&nbsp; &nbsp;Before&nbsp; &nbsp;adverting&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;specific&nbsp; &nbsp;contentions&nbsp; &nbsp;raised&nbsp; &nbsp;by&nbsp; &nbsp;the learned senior counsel for the Petitioner, it may be useful to briefly summarise the law governing consent decrees that shall inform our conclusions on the present matter. It is well­ settled that consent decrees are intended to create estoppels by judgment against the parties, thereby putting an end to further litigation between the parties. Resultantly, this Court has held that it would be slow to unilaterally interfere in, modify, substitute or modulate the terms of a consent decree, unless it is done with the revised consent of all the&nbsp; &nbsp;parties&nbsp; &nbsp;thereto.&nbsp; &nbsp;Gupta&nbsp; &nbsp;Steel&nbsp; &nbsp;Industries&nbsp; v.&nbsp; Jolly&nbsp; &nbsp;Steel<br>Industries&nbsp; &nbsp;Pvt.&nbsp; &nbsp;Ltd.&nbsp; &nbsp;&amp;&nbsp; &nbsp;anr.,&nbsp; (1996)&nbsp; &nbsp;11&nbsp; &nbsp;SCC&nbsp; &nbsp;678;&nbsp; Suvaran Rajaram&nbsp; &nbsp;Bandekar&nbsp; &amp;&nbsp; &nbsp;ors.&nbsp; v.&nbsp; Narayan&nbsp; &nbsp;R.&nbsp; &nbsp;Bandekar&nbsp; &amp;&nbsp; &nbsp;ors.,<br>(1996) 10 SCC 255.&nbsp;<br><font color=\"#ce0000\">19. However, this formulation is far from absolute and does not apply as a blanket rule in all cases. This Court, in Byram Pestonji Gariwala&nbsp; v.&nbsp; Union Bank of India &amp; ors., (1992) 1 SCC 31, has held that a consent decree would not serve as an estoppel, where the&nbsp; compromise&nbsp; &nbsp;was&nbsp; &nbsp;vitiated&nbsp; &nbsp;by&nbsp; &nbsp;fraud,&nbsp; &nbsp;misrepresentation,&nbsp; &nbsp;or mistake. Further, this Court in the exercise of its inherent powers may also unilaterally rectify a consent decree suffering from clerical or arithmetical errors, so as to make it conform with the terms of the compromise.</font><br></h4>', '1f51fe0c8ed5ba72b44186d1893872a6.jpg', 'b254b500fcd76f025bc537a663d36d76.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-17', 1, '', '', '2021-02-18 03:22:29', '2021-02-18 03:23:48'),
(476, 'FXjMyVNRdZzwK7wvGOXcfBvs1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Judicial review. Presence of arbitration clause in a contract between a state instrumentality and a private party not a bar to avail remedy under Article 226 when the state instrumentality violates constitutional mandate to act fairly and reasonably. SC', '<h4>UNITECH Limited & Ors. vs Telangana State Industrial Infrastructure Corporation (TSIIC) & Ors.<br></h4><h4>Civil Appeal No. 317 of 2021 decided on 17 February 2021. Justice Dr Dhananjaya Y Chandrachud and Justice M.R.Shah</h4><h4>Judgment Link: </h4><h4><a href=\"https://main.sci.gov.in/supremecourt/2019/12603/12603_2019_36_1501_26249_Judgement_17-Feb-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/12603/12603_2019_36_1501_26249_Judgement_17-Feb-2021.pdf</a></h4><h4><font color=\"#9c0000\">Relevant paragraphs: </font>33 A two judge Bench of this Court in ABL International Ltd. v. Export Credit Guarantee Corporation of India7 [ABL International] analyzed a long line of precedent of this Court8 to conclude that writs under Article 226 are maintainable for asserting contractual rights against the state, or its instrumentalities, as defined under Article 12 of the Indian Constitution. Speaking through Justice N Santosh Hegde, the Court held:</h4><h4 style=\"margin-left: 25px;\"><i>“27. …the following legal principles emerge as to the maintainability of a writ petition:<br>(a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.<br>(b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.<br>(c) A writ petition involving a consequential relief of monetary claim is also maintainable.”</i></h4><h4>This exposition has been followed by this Court, and has been adopted by threejudge Bench decisions of this Court in State of UP v. Sudhir Kumar9 and Popatrao Vynkatrao Patil v. State of Maharashtra10. The decision in ABL International, cautions that the plenary power under Article 226 must be used with circumspection when other remedies have been provided by the contract. But as a statement of principle, the jurisdiction under Article 226 is not excluded in contractual matters.<br></h4><h4><font color=\"#9c0000\">Article 23.1 of the Development Agreement in the present case mandates the parties to resolve their disputes through an arbitration. However, the presence of an arbitration clause within a contract between a state instrumentality and a private party has not acted as an absolute bar to availing remedies under Article 226.11 If the state instrumentality violates its constitutional mandate under Article 14 to act fairly and reasonably, relief under the plenary powers of the Article 226 of the Constitution would lie. This principle was recognized in ABL International:</font><br></h4><h4 style=\"margin-left: 25px;\"><i>“28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1] ) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction.”</i><br></h4><h4>Therefore, while exercising its jurisdiction under Article 226, the Court is entitled to enquire into whether the action of the State or its instrumentalities is arbitrary or unfair and in consequence, in violation of Article 14. The jurisdiction under Article 226 is a valuable constitutional safeguard against an arbitrary exercise of state power or a misuse of authority. In determining as to whether the jurisdiction should be exercised in a contractual dispute, the Court must, undoubtedly eschew, disputed questions of fact which would depend upon an evidentiary determination requiring a trial. But equally, it is well-settled that the jurisdiction under Article 226 cannot be ousted only on the basis that the dispute pertains to the contractual arena. This is for the simple reason that the State and its instrumentalities are not exempt from the duty to act fairly merely because in their business dealings they have entered into the realm of contract. Similarly, the presence of an arbitration clause does oust the jurisdiction under Article 226 in all cases though, it still needs to be decided from case to case as to whether recourse to a public law remedy can justifiably be invoked. The jurisdiction under Article 226 was rightly invoked by the Single Judge and the Division Bench of the Andhra Pradesh in this case, when the foundational representation of the contract has failed. TSIIC, a state instrumentality, has not just reneged on its contractual obligation, but hoarded the refund of the principal and interest on the consideration that was paid by Unitech over a decade ago. It does not dispute the entitlement of Unitech to the refund of its principal.</h4><h4><br></h4><h4>7 (2004) 3 SCC 553<br>8 K.N. Guruswamy v. State of Mysore, AIR 1954 SC 592; Gujarat State Financial Corporation. v. Lotus Hotels (P) Ltd, (1983) 3 SCC 379; Gunwant Kaur v. Municipal Committee, Bhatinda, (1969) 3 SCC 769</h4><h4>9 2020 Scconline SC 847</h4><h4>10 Civil Appeal 1600 of 2000 (Supreme Court of India)<br></h4><h4>11 Harbanslal Sahnia v. Indian Oil Corporation Ltd., (2003) 2 SCC 107; Ram Barai Singh & Co. v. State of Bihar & Ors., (2015) 13 SCC 592<br><br></h4>', '4609d29ae316004c971229284177a2f1.jpeg', '501244525111ea3bc09a97a04f84d8f5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-17', 1, '', '', '2021-02-18 04:18:25', '2021-02-18 04:26:39'),
(477, 'T0fpUXEWVruhGsp5JENL2zOxq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contract Act. Contractually-stipulated interest rate if found to be penal  excessive or in terrorem can be reduced by Court to a reasonable rate of compensation. Supreme Court', '<h4>UNITECH Limited &amp; Ors. vs Telangana State Industrial Infrastructure Corporation (TSIIC) &amp; Ors.<br></h4><h4>Civil Appeal No. 317 of 2021 decided on 17 February 2021. Justice Dr Dhananjaya Y Chandrachud and Justice M.R.Shah</h4><h4>Judgment Link:&nbsp;</h4><h4><a href=\"https://main.sci.gov.in/supremecourt/2019/12603/12603_2019_36_1501_26249_Judgement_17-Feb-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/12603/12603_2019_36_1501_26249_Judgement_17-Feb-2021.pdf</a></h4><h4><font color=\"#9c0000\">Relevant paragraphs:</font>&nbsp;38...A Constitution Bench of this Court, in the case of Central Bank of India v. Ravindra (2002) 1 SCC 367, when considering the question of penal interest rates, had observed:</h4><h4 style=\"margin-left: 25px;\"><i>“39….. Pre-suit interest is referable to substantive law and can be subdivided into two sub-heads: (i) where there is a stipulation for the payment of interest at a fixed rate; and (ii) where there is no such stipulation. If there is a stipulation for the rate of interest, the court must allow that rate up to the date of the suit subject to three exceptions: (i) any provision of law applicable to moneylending transactions, or usury laws or any other debt law governing the parties and having an overriding effect on any stipulation for payment of interest voluntarily entered into between the parties; (ii) if the rate is penal, the court must award at such rate as it deems reasonable; (iii) even if the rate is not penal the court may reduce it if the interest is excessive and the transaction was substantially unfair.”</i></h4><h4> </h4><h4><font color=\"#9c0000\">In a similar vein, in interpreting Section 74 of the Indian Contract Act, 1872, this Court has held that a contractually-stipulated interest rate, if found to be penal, excessive or in terrorem can be reduced to a reasonable rate of compensation</font><span style=\"color: rgb(156, 0, 0);\">.</span>&nbsp;In upholding the reasoning of the Kerala High Court in full, a two judge Bench of this Court in K P Subbarama Sastri v. KS Raghavan&nbsp;(1987) 2 SCC 424 held:</h4><h4 style=\"margin-left: 25px;\"><i>5…“The question whether a particular stipulation in a contractual agreement is in the nature of a penalty has to be determined by the court against the background of various relevant factors, such as the character of the transaction and its special nature, if any, the relative situation of the parties, the rights and obligations accruing from such a transaction under the general law and the intention of the parties in incorporating in the contract the particular stipulation which is contended to be penal in nature. If on such a comprehensive consideration, the court finds that the real purpose for which the stipulation was incorporated in the contract was that by reason of its burdensome or oppressive character it may operate in terrorem over the promiser so as to drive him to fulfil the contract,, then the provision will be held to be one by way of penalty.”</i><br></h4><h4>Therefore, considering the position of Unitech-which knowingly entered into the Development Agreement with full knowledge of the pending litigation and with an intention to continue with the project after a delay of over seven years, up until a decision by this Court, we find that the interest rate is payable to Unitech, without compounding</h4><div style=\"margin-left: 25px;\"><br></div>', 'e5cf71d95be8f7c97eae5d34c0ab3873.jpg', '5e6345cd538a6ac51e39b087b4dda61e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-17', 1, '', '', '2021-02-18 04:52:56', '2021-02-18 05:20:45');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(478, 'HtF7nbVQi2a0DoFLuh9wwcF6o', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transfer of Property Act 1882. A purchaser cannot have a better title than what his vendor had.  Supreme Court ', '<h4><span style=\"color: rgb(156, 0, 0); background-color: rgb(255, 255, 0); font-style: italic;\">Full Judgment-1 (Two Judgments. )&nbsp;</span></h4><h4>IN THE SUPREME COURT OF INDIA&nbsp;</h4><h4>State of A.P. v. Star Bone Mill and Fertiliser Company</h4><h4>Civil Appeal No. 6690 of 2004†, decided on February 21, 2013</h4><h4>Justice Dr. B.S. Chauhan and Justice F.M.Ibrahim Kalifulla&nbsp;</h4><h4>Reported in (2013) 9 SCC 319&nbsp;</h4><h4>Justice Dr. B.S. Chauhan— This appeal has been preferred against the impugned judgment and order dated 22-3-2004, passed by the High Court of Judicature of Andhra Pradesh at Hyderabad in State of A.P. v. Star Bone Mill &amp; Fertiliser Co.1, by way of which the civil suit filed by the respondent against the appellants, claiming title over the suit land in dispute, has been upheld.</h4><h4>2. The facts and circumstances giving rise to this appeal are: one Shri M.A. Samad, Assistant Engineer, City Improvement Board, Hyderabad, along with his associate, converted the land in dispute measuring 3.525 acres i.e. 17,061 sq yd, in favour of the Forest Department in 1920. The suit land was given on lease on 21-5-1943 to M/s A. Allauddin &amp; Sons for a fixed time period, incorporating the terms and conditions that the lessee would not be entitled to extend the existing building in any way, or to erect any structure on the land leased. The lessee was also prohibited from transferring the suit land by any means.</h4><h4>3. The said M/s A. Allauddin &amp; Sons, a proprietary concern, sent a letter dated 29-9-1945 in response to the eviction notice, informing the appellants that it was not possible for it to remove the factory established on the suit land, and thus, the said lessee asked the appellants to put up the said property for rent. The said firm, then sent a letter dated 1-5-1951, offering rent of Rs 600 per annum. The appellants vide letter dated 20-12-1954, informed M/s A. Allauddin &amp; Sons to vacate the site within a period of one month, or else be evicted in accordance with law, and in that case it would also be liable to pay damages. In spite of receiving such a letter, the said lessee/tenant remained in possession of the suit premises, and continued to pay rent, as is evident from the letter dated 15-8-1956.</h4><h4>4. The appellants, however, vide letter dated 21-2-1958, asked the said lessee/tenant M/s A. Allauddin &amp; Sons, yet again, to vacate the suit land. Instead of vacating the suit land, M/s A. Allauddin &amp; Sons executed a lease deed dated 24-2-1958, and got it registered on 6-4-1958, in favour of Syed Jehangir Ahmed and others (partners of the respondent firm, M/s Star Bone Mill and Fertiliser Co.), for a period of two years. During the subsistence of the said sublease, the partners of the firm M/s A. Allauddin &amp; Sons, executed a sale deed on 11-11-1959 in favour of the respondent, for a consideration of Rs 45,000. The said sale deed was also registered, and possession was handed over to the respondent.</h4><h4>5. The respondent herein filed a petition in 1964 before the Minister for Agriculture &amp; Forest, seeking permanent lease of the suit premises in his favour. On 26-4-1967, an order was passed by the Ministry of Agriculture &amp; Forest in respect of recovery of arrears of rent as regards the said land. The respondent vide letter dated 7-5-1969, offered higher rent to the appellants for the suit land.</h4><h4>6. On 22-5-1970, the respondent wrote a letter to the Chief Minister of Andhra Pradesh (Ext. B-39), stating that he had been cheated by M/s A. Allauddin &amp; Sons, as it had executed a sale deed in his favour, even though it had no title, and a very high rate of rent was fixed by the department, which should be reduced and till the matter is finally decided, a rent of Rs 569 per month should be accepted. The said application/petition was rejected by the Assistant Secretary to the Government, Food &amp; Agriculture Department, vide letter dated 18-12-1970. Aggrieved, the respondent filed Writ Petition No. 187 of 1971 wherein an interim order dated 12-1-1971 was passed, to the effect that the recovery of rent for the period prior to 26-4-1969 would be made at the rate of Rs 568 per month instead of Rs 1279 per month. Subsequent to 26-4-1969, rent would be recovered at the rate of Rs 1279 per month. In case arrears are not paid by the respondent, he would be vacated from the suit land.</h4><h4>7. In view of the interim order of the High Court, the appellants issued a demand notice for a sum of Rs 45,484.62p. However, vide order dated 19-10-1971, the High Court directed the respondent to deposit a sum of Rs 30,000, in eight monthly instalments. The said writ petition was disposed of vide order dated 18-2-1972, asking the respondent to approach the appropriate forum to establish his rights over the suit land, or to make a representation to the State Government for this purpose.</h4><h4>8. The appellants served notice dated 8-4-1974, upon the respondent under Section 7 of the Land Encroachment Act, and the respondent submitted a reply to the said show-cause notice on 24-6-1974. The matter was adjudicated and decided on 21-8-1974, under Section 6 of the Land Encroachment Act, and the respondent was directed to vacate the suit land. The respondent filed Writ Petition No. 5222 of 1974 before the High Court, however, the same was dismissed, after giving liberty to the respondent to approach the civil court. Thus, the respondent filed Original Suit No. 582 of 1974 for declaration of title and for injunction, restraining the appellants from evicting the said respondent-plaintiff from the property in dispute.</h4><h4>9. The appellants contested the suit by filing a written statement, and on the basis of the pleadings therein, a large number of issues were framed, including whether M/s A. Allauddin &amp; Sons was actually the owner and possessor of the suit land; and whether it could transfer the suit land to the respondent-plaintiff, vide registered sale deed dated 11-11-1959. The City Civil Court, vide judgment and decree dated 25-4-1989 decreed the suit, holding that the Government was not the owner of the suit land, and that the respondent-plaintiff had a better title over it. Thus, he was entitled for declaration of title, and injunction as sought by him.</h4><h4>10. Aggrieved, the appellants preferred City Civil Court Appeal No. 72 of 1989 before the High Court, challenging the said judgment and decree dated 25-4-1989, which was dismissed vide judgment and decree dated 22-3-20041, affirming the judgment and decree of the trial court. Hence, this appeal.</h4><h4>11. Shri Amarendra Sharan, learned Senior Counsel appearing on behalf of the appellants, has submitted that the courts below misdirected themselves and did not determine the issue as regards, whether the vendor of the respondent-plaintiff had any title over the suit property. The same is necessary to determine the validity of the sale deed in favour of the respondent-plaintiff. The issue before the trial court was not whether the Government was the owner of the said land or not. No such issue was framed either. Moreover, such an issue could not be framed in view of the admission made by the respondent-plaintiff itself, as it had been paying rent regularly to the Government, and the same was admitted by it, by way of filing an application before the Government stating, that M/s A. Allauddin &amp; Sons had cheated it by executing a sale deed in its favour, without any authority/title. It thus, requested the Government to execute a lease deed/rent deed in its favour. It was not its case, that in its earlier two writ petitions filed by it, it had acquired title over the land validly, or that M/s A. Allauddin &amp; Sons, etc. had any title over the said suit land. The lease deed executed by the Government in favour of M/s A. Allauddin &amp; Sons, dated 21-5-1943 must be considered in light of the provisions of Section 90 of the Evidence Act, 1872 (hereinafter referred to as “the Evidence Act”), and not the sale deed dated 11-11-1959, as the suit was filed in 1974, just after a period of 15 years of sale, and not 30 years. The courts below have erred in applying the provisions of Section 90 of the Evidence Act. The findings of fact recorded by the courts below are perverse, being based on no evidence and have been recorded by a misapplication of the law. Thus, the appeal deserves to be allowed.</h4><h4>12. On the contrary, Shri D. Rama Krishna Reddy, learned counsel appearing on behalf of the respondent, has opposed the appeal, contending that the findings of fact recorded by the courts below, do not warrant interference by this Court. It is evident from the revenue records that possession is prima facie evidence of ownership, and that the same is by itself, a limited title, which is good except to the true owner. The admission and receipt of tax constitutes admission of ownership, and the entries in the revenue record must hence, be presumed to be correct. In the revenue record, one Raja Ram has been shown to be the owner of the land, the Forest Department cannot claim any title or interest therein. The said appeal lacks merit, and is liable to be dismissed.</h4><h4>13. We have considered the rival submissions made by the learned counsel for the parties and perused the records.</h4><h4>14. Admittedly, the High Court erred in holding that the sale deed dated 11-11-1959, must be considered in the light of the provisions of Section 90 of the Evidence Act, instead of the period mentioned therein, thereby treating the appeal as a continuation of the suit. Therefore, the period of 30 years mentioned therein, has been calculated from 1959, till the date of the decision of the appeal i.e. 22-3-20041. This view itself is impermissible and perverse, and cannot be accepted. The courts below have not given any reason, whatsoever, for the said lease deed to be treated as having been executed on 21-5-1943, under Section 90 of the Evidence Act and, thus, for believing that the land belonging to the Forest Department, which had in turn, given it to M/s A. Allauddin &amp; Sons on lease.</h4><h4><font color=\"#9c0000\">15. Section 90 of the Evidence Act is based on the legal maxims: nemo dat qui non habet (no one gives what he has not got); and nemo plus juris tribuit quam ipse habet (no one can bestow or grant a greater right, or a better title than he has himself). This section does away with the strict rules, as regards the requirement of proof, which are enforced in the case of private documents, by giving rise to a presumption of genuineness, in respect of certain documents that have reached a certain age. The period is to be reckoned backward from the date of the offering of the document, and not any subsequent date i.e. the date of decision of suit or appeal. Thus, the said section deals with the admissibility of ancient documents, dispensing with proof as would be required, in the usual course of events in a usual manner.</font></h4><h4>16. There has been a clear admission by the respondent-plaintiff in its letter dated 22-5-1970 (Ext. B-39), to the effect that it had been cheated by M/s A. Allauddin &amp; Sons, who had no title over the suit land, and sale deed dated 11-11-1959, had thus been executed in favour of the respondent-plaintiff by way of misrepresentation. The said application was rejected vide order dated 18-12-1970. While filing the writ petition, the respondent-plaintiff did not raise the issue of title of the Forest Department, in fact, the dispute was limited only to the extent of the amount of rent, and its case remained the same even in the second writ petition, when it was evicted under the Encroachment Act. The trial court framed various issues, and without giving any weightage to the documents filed by the appellant-defendant, decided the case in favour of the respondent-plaintiff, with total disregard to any legal requirements. The courts below have erred in ignoring the revenue record, particularly, the documents showing that the Government was the absolute owner of the suit land since at least 1920.</h4><h4><font color=\"#ce0000\">17. No person can claim a title better than he himself possesses. In the instant case, unless it is shown that M/s A. Allauddin &amp; Sons had valid title, the respondent-plaintiff could not claim any relief whatsoever from court.</font><br></h4><h4>18. In Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund2 this Court held as under: (SCC p. 568, para 12)</h4><h4>“12. A revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof both forward and backward can also be raised under Section 110 of the Evidence Act.”</h4><h4>19. In Nair Service Society Ltd. v. K.C. Alexander3, dealing with the provisions of Section 110 of the Evidence Act, this Court held as under: (AIR p. 1173, para 15)</h4><h4>“15. … possession may prima facie raise a presumption of title no one can deny but this presumption can hardly arise when the facts are known. When the facts disclose no title in either party, possession alone decides.”</h4><h4>20. In Chief Conservator of Forests v. Collector4, this Court held that: (SCC p. 484, para 20)</h4><h4>“20. … presumption, which is rebuttable, is attracted when the possession is prima facie lawful and when the contesting party has no title.”</h4><h4>21. The principle enshrined in Section 110 of the Evidence Act is based on public policy with the object of preventing persons from committing breach of peace by taking law into their own hands, however good their title over the land in question may be. It is for this purpose, that the provisions of Section 6 of the Specific Relief Act, 1963, Section 145 of the Code of Criminal Procedure, 1973, and Sections 154 and 158 of the Penal Code, 1860, were enacted. All the aforesaid provisions have the same object. The said presumption is read under Section 114 of the Evidence Act, and applies only in a case where there is either no proof, or very little proof of ownership on either side. The maxim “possession follows title” is applicable in cases where proof of actual possession cannot reasonably be expected, for instance, in the case of wastelands, or where nothing is known about possession one way or another. Presumption of title as a result of possession, can arise only where facts disclose that no title vests in any party. Possession of the plaintiff is not prima facie wrongful, and title of the plaintiff is not proved. It certainly does not mean that because a man has title over some land, he is necessarily in possession of it. It in fact means, that if at any time a man with title was in possession of the said property, the law allows the presumption that such possession was in continuation of the title vested in him. A person must establish that he has continued possession of the suit property, while the other side claiming title, must make out a case of trespass/encroachment, etc. Where the apparent title is with the plaintiffs, it is incumbent upon the defendant, that in order to displace this claim of apparent title and to establish beneficial title in himself, he must establish by way of satisfactory evidence, circumstances that favour his version. Even, a revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof, both forward and backward, can also be raised under Section 110 of the Evidence Act.</h4><h4>22. The courts below have failed to appreciate that mere acceptance of municipal tax or agricultural tax by a person, cannot stop the State from challenging ownership of the land, as there may not be estoppel against the statute. Nor can such a presumption arise in case of grant of loan by a bank upon it hypothecating the property.</h4><h4>23. The trial court has recorded a finding to the effect that the name of one Raja Ram was shown as pattadar in respect of the land in dispute and the respondent-plaintiff is in possession. Therefore, the burden of proof was shifted on the Government to establish that the suit land belonged to it. The learned counsel for the respondent-plaintiff could not furnish any explanation before us as to who was this Raja Ram, pattadar and how the respondent-plaintiff was concerned with it. Moreover, in absence of his impleadment by the respondent-plaintiff such a finding could not have been recorded.</h4><h4>24. The courts below erred in holding that revenue records confer title for the reason that they merely show possession of a person. The courts below further failed to appreciate that the sale deed dated 11-11-1959 was invalid and inoperative, as the documents on record established that the vendor was merely a lessee of the Government.</h4><h4>25. In view of the above, we are of the considered opinion that findings of fact recorded by the courts below are perverse and liable to be set aside. The appeal succeeds and is allowed. The judgments of the courts below are hereby set aside. The suit filed by the respondent-plaintiff is dismissed.</h4><h4>———</h4><h4>†<span style=\"white-space:pre\">	</span>From the Judgment and Order dated 22-3-2004 of the High Court of Judicature of Andhra Pradesh at Hyderabad in City Civil Court Appeal No. 72 of 1989</h4><h4>1<span style=\"white-space:pre\">	</span>City Civil Court Appeal No. 72 of 1989, decided on 22-3-2004 (AP)</h4><h4>2<span style=\"white-space:pre\">	</span>(2007) 13 SCC 565 : AIR 2008 SC 901</h4><h4>3<span style=\"white-space:pre\">	</span>AIR 1968 SC 1165</h4><h4>4<span style=\"white-space:pre\">	</span>(2003) 3 SCC 472 : AIR 2003 SC 1805</h4><h4><span style=\"color: rgb(156, 0, 0);\">On this point, also see</span></h4><h4>Mahabir Gope v. Harbans Narain Singh, 1952 SCR 775 : AIR 1952 SC 205&nbsp;</h4><h4>All India Film Corpn. Ltd. v. Raja Gyan Nath, (1969) 3 SCC 79</h4><h4>Sewa Ram v. Union of India, (1997) 5 SCC 166&nbsp;</h4><h4><br></h4><h4><span style=\"color: rgb(206, 0, 0); background-color: rgb(255, 255, 0); font-style: italic;\">Full Judgment-2</span></h4><h4>IN THE SUPREME COURT OF INDIA&nbsp;</h4><h4>Union of India v. Kamla Verma.</h4><h4>Civil Appeal No. 6563 of 2010†, decided on August 13, 2010</h4><h4>Justice P.Sathasivam and Justice Anil R Dave.&nbsp;</h4><h4>(2010) 13 SCC 511&nbsp;</h4><h4>Justice ANIL R. DAVE— Leave granted. Being aggrieved by the judgment dated 19-1-2007 delivered by the High Court of Allahabad, Lucknow Bench, Lucknow in Writ Petition No. 1661 (M/B) of 1998, the original respondents before the High Court have approached this Court by way of this appeal.</h4><h4>2. The facts giving rise to the litigation in a nutshell are as under: the respondent-original petitioner before the High Court had filed the aforesaid writ petition praying that the premises situated at 14, Kasturba Marg (Old No. 15, Tomb Road), Lucknow Cantt., be dehired under the policy of the Central Government as reflected in Para 19 Clause (c) of the Policy and Procedure for Dehiring of Houses dated 19-11-1979 (as amended on 19-3-1985) as the premises in question was not being used by the respondents because it was in a dilapidated condition.</h4><h4>3. After considering the fact that the premises was not in good shape and was not in use by the respondents, the High Court allowed the petition by directing the respondents to permit the petitioner to undertake repair works of the premises in question and to dehire the same with immediate effect. The High Court came to the conclusion that the petitioner was a landlady and as per policy of the Central Government, she had a right to get the property dehired especially when the respondent authorities were not using the same. The High Court had taken into account the contents of a letter dated 29-11-1996, addressed to the Director, DE written by the Defence Estate Officer of Lucknow Cantt. for coming to the above conclusion. The High Court came to the conclusion that the reference to “old grant” seemed to be misconceived as there was nothing on record to show that the land in question was allotted to the vendor of the petitioner lady on “old grant”. Being aggrieved by the aforesaid judgment, the respondent government authorities have filed this appeal.</h4><h4>4. The learned Additional Solicitor General appearing for the appellant-original respondents has submitted that the impugned judgment is bad in law for the reason that certain factual aspects which had been placed on record along with the counter-affidavit filed before the High Court had not been considered and, therefore, the conclusion arrived at by the High Court is not correct.</h4><h4>5. It has been submitted by the learned ASG that the premises in question had been granted on “old grant” terms to Shri Roop Krishan Seth, son of Shri Rai Bahadur Prabhu Dayal Seth. Thereafter under an agreement dated 26-7-1948, the premises in question had been leased to the present appellants. A copy of the said agreement was very much on record of the High Court as it had been annexed to the counter-affidavit filed by the present appellant-original respondents before the High Court. Subsequently, the property in question had been inherited by Shri Mohan Krishan Seth, son of Shri Roop Krishan Seth. Thereafter, the property in question had been transferred in favour of the present respondent, namely, Smt Kamla Verma who was the petitioner before the High Court.</h4><h4>6. So as to substantiate his case, the learned ASG has drawn our attention to the contents of the agreement dated 26-7-1948, whereby the property in question had been leased to the appellant authorities. In the preface of the agreement, it has been clearly stated that the property in question was held by Shri Roop Krishan Seth on “cantonment tenure” or in other words it means “old grant” terms. The said fact denotes that Shri Roop Krishan Seth was not a full-fledged owner of the property in question. Had he been the owner of the property in question, the reference to “cantonment tenure” would not have been made in the said agreement. Moreover, in Clause (iv)(5) of the said agreement, it has been stated that the authorities had a right to resume possession of the whole or any portion of the property in question, during the period of tenancy without being liable to Shri Roop Krishan Seth in any way. Had Shri Roop Krishan Seth been an owner of the property in question, there would not have been any such clause with regard to resumption of the property i.e. building as well as the land in question, in the lease deed.</h4><h4>7. This fact, according to the learned Additional Solicitor General, shows that the land in question, was given to Shri Roop Krishan Seth on “cantonment tenure” or “old grant” terms. The respondent had purchased right in respect of the property in question from Shri Mohan Krishan Seth, son of Shri Roop Krishan Seth after the said property was inherited by him upon death of his father and as Shri Roop Krishan Seth was having the property in question on “cantonment tenure”, the respondent could not have got better right than what Shri Roop Krishan Seth had in the property in question. Therefore, even the respondent is not having full ownership right in respect of the property in question, but is having only “cantonment tenure” in respect of the property in question.</h4><h4>8. It has been further submitted by the learned ASG that it is open to the appellant authorities to resume the land from the one who has been granted the land on “old grant” terms. He has submitted that the land in question is in a cantonment area and in the past, land in a cantonment area, belonging to the Government, was given for a limited use to the civilians and it was open to the Government to resume such land at any time. He has referred to a judgment delivered in Chief Executive Officer v. Surendra Kumar Vakil1 to show as to how the term “old grant” is being interpreted.</h4><h4>9. Thereafter it has been submitted that the respondent had filed a civil suit in the Court of the Additional District and Sessions Judge, FTC 6, Lucknow, being Small Cause Case No. 2 of 2000. The said suit had been dismissed on 12-12-2006 and while dismissing the suit, the court had come to the conclusion that as per the general order of the Governor General-in-Council bearing No. 179, the land and trees standing on the land in question, belong to the Government of India, Ministry of Defence. The said findings have become final and, therefore, it has been submitted that the respondent has no ownership in respect of the land in question. For the aforestated reasons, it has been submitted that the impugned order is bad in law and, therefore, it deserves to be quashed and set aside.</h4><h4>10. On the other hand, it has been submitted on behalf of the learned advocate appearing for the respondent that the respondent was the owner of the land in question, as the land in question along with superstructure, had been purchased by the respondent from Shri Mohan Krishan Seth. The learned advocate has also relied upon the letter dated 29-11-1996, written by the Defence Estate Officer, Lucknow Cantt., which has been referred to hereinabove. According to him, in view of the contents of the said letter, it is clear that one of the officers of the appellants had opined that the premises in question was in a dilapidated condition and it was not being used and, therefore, recommendation was made for dehiring the said premises. The said fact, according to the learned advocate, clearly denotes that the premises in question, belongs to the respondent, otherwise the respondent would not have leased the premises to the appellant authorities. The learned advocate has also submitted that the High Court had rightly allowed the petition and, therefore, the appeal be dismissed.</h4><h4>11. We have heard the learned advocates and have also gone through the contents of the judgment delivered in Chief Executive Officer1.</h4><h4>12. Upon perusal of the agreement dated 26-7-1948 and upon perusal of the sale deed dated 23-12-1996 executed in favour of the respondent, it is crystal clear that the land in question was held by the original grantee Shri Roop Krishan Seth on “old grant” terms under GGC No. 179 dated 12-9-1836. The meaning of the said grant has been clearly explained by this Court in Chief Executive Officer1 and that clearly denotes that the vendor who sold the rights in respect of the land in question, was never a full-fledged owner of the said land but he was given the said land only on “old grant” terms.&nbsp;<font color=\"#ce0000\"> Being allotted the land on “old grant” terms, the said allottee never became a full-fledged owner and, therefore, he could not have transferred any right better than what he had in respect of the land in question, to the present respondent. Shri Mohan Krishan Seth inherited rights in respect of the said property from late Shri Roop Krishan Seth and ultimately Shri Mohan Krishan Seth transferred his rights to the respondent. So the respondent also got the rights which Shri Mohan Krishan Seth had in the property in question. Thus, the respondent was also holding the land/property in question on “old grant” terms and she did not become a full-fledged owner of the property in question.</font></h4><h4>13. In our opinion, the High Court did not consider the fact that the present respondent was holding the land in question only on “old grant” terms and, therefore, she was not a full-fledged owner of the land but she had the right only in respect of the superstructure put up on the land in question, which had been given on lease to the present appellants.</h4><h4>14. The learned Additional Solicitor General has drawn our attention to the judgment delivered by this Court in Chief Executive Officer1 so as to explain the meaning of the term “old grant”. Paras 9 and 10 of the said judgment explain the meaning of the term “old grant”. The said paras read as under: (SCC pp. 559-61)</h4><h4>“9. The narrow question is whether the land was held by S.N. Mukherjee on old grant basis or not. The land is in the cantonment area of Sagar. Grant of land in cantonment areas was, at all material times, governed by the general order of the Governor General-in-Council bearing No. 179 of the year 1836, known as the Bengal Regulations of 1836. Under Regulation 6 of these Regulations, the conditions of occupancy of lands in cantonments are laid down. Thereunder, no ground will be granted except on the conditions set out therein which are to be subscribed to by every grantee as well as by those to whom his grant may be subsequently transferred. The first condition relates to resumption of land:</h4><h4>(1) The Government retains the power of resumption at any time on giving one month’s notice and paying the value of such buildings as may have been authorised to be erected.</h4><h4>(2) The ground being in every case the property of the Government, cannot be sold by the grantee. But houses or other property thereon situated may be transferred by one military or medical officer to another without restriction except in certain cases.</h4><h4>(3) If the ground has been built upon, the buildings are not to be disposed of to any person of whatever description who does not belong to the army until the consent of the officer commanding the station shall have been previously obtained under his hand.</h4><h4>10. The High Court in its impugned judgment has reproduced extracts from the book on Cantonment Laws by J.P. Mittal, 2nd Edn., at p. 3, which may well be reproduced here:</h4><h4>‘Besides municipal administration, another subject that has always loomed large on the cantonment horizon, is the question of provision of necessary accommodation for military officers near the place of their duty. This led to the issue, from time to time, of certain rules, regulations, and orders by the Governments of Bengal, Madras and Bombay Presidencies between the years of 1789 and 1899. The&nbsp; regulations were mostly of an identical nature. They had a twofold object in view, that of ensuring sufficient accommodation for military officers; and that of regulation of the grant of land sites. Some of these regulations are published in this book. These rules, regulations and orders continue to be the law in force in India even after the enforcement of the British Statutes (Application to India) Repeal Act, 1960 (Raj Singh v. Union of India2, Mohan Agarwal v. Union of India3).</h4><h4>Under these regulations and orders, officers not provided with government quarters were allowed to erect houses in the cantonment. For this purpose ground was allotted to them with the condition that no right of property whatever in the ground was conferred on them and the ground continued to be the property of the State, was resumable at the pleasure of the Government by giving one month’s notice and paying the value of the structures as may have been authorised to be erected. The houses or other property built on such grounds were allowed to be transferred by one military officer to another without restrictions. To civilians these could be transferred only with the prior permission of the officer commanding the station.</h4><h4>With the lapse of time civilians were also encouraged to build bungalows on the government land in the cantonment on the same condition of resumption of the ground as given above and with a further condition that they may be required to rent or sell the same to any military officer. In case of disagreement about the rent or the sale price, the same was to be fixed by a committee of arbitration. These tenures under which permission was given to occupy government land in the cantonments for construction of bungalows came to be known as “old grant”. Such permission was given mostly on payment of no rent. This is how a large number of bungalows in the cantonments all over India came in the hands of civilians.’ ”</h4><h4>15. Even in the instant case, the land in question, was originally permitted to be used by a civilian on “old grant” basis and the said fact is reflected in the lease deed executed by late Shri Roop Krishan Seth. Moreover, even in the sale deed executed in favour of the respondent, it has been stated that the vendor was an “occupancy-holder of the land and trees of the aforesaid premises and owner of superstructure of the bungalow…”. It is also pertinent to note that even in the land register the Government of India has been shown as a “landlord” and Shri Mohan Krishan Seth has been shown to be having occupancy right and his nature of right is shown to be of “old grant”. These facts had been duly incorporated in the counter-affidavit filed by the present appellants before the High Court.</h4><h4>16. It is also pertinent to note that in a civil suit filed by the respondent in the Court of the Additional District and Sessions Judge, FTC 6, Lucknow being Small Cause Case No. 2 of 2000 for eviction, the respondent had failed to obtain a decree against the present appellants. The said suit had been dismissed. The court, while dismissing the suit, had clearly come to the conclusion that as per the general order of GGC No. 179, the land and the trees standing on the land, etc. were the property of the Government of India, Ministry of Defence. The court had come to the conclusion that the land in question was not owned by the present respondent and the present respondent did not challenge the said findings. Unfortunately, the said fact was also not considered by the High Court while allowing the petition filed by the present respondent.</h4><h4>17. In view of the above legal position, it is always open to the appellants to resume the land in question and the appellants cannot be prevented from resuming the land in question. The High Court was in error while considering the respondent as an owner of the property in question.</h4><h4>18. We, therefore, set aside the order passed by the High Court. The appeal is allowed accordingly. No order as to costs.</h4><h4>———</h4><h4>†<span style=\"white-space:pre\">	</span>Arising out of SLP (C) No. 20368 of 2007. From the Judgment and Order dated 19-1-2007 of the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in WP No. 1661 (M/B) of 1998</h4><h4>1<span style=\"white-space:pre\">	</span>(1999) 3 SCC 555</h4><h4>2<span style=\"white-space:pre\">	</span>AIR 1973 Del 169</h4><h4>3<span style=\"white-space:pre\">	</span>AIR 1979 All 170</h4><h4><br></h4><h4><font color=\"#9c0000\">On this point, also see.</font></h4><h4><font color=\"#9c0000\">1. Ramdas v. Sitabai, (2009) 7 SCC 444 . Paragraph 16. It is settled law under the Transfer of Property Act, 1882 that a purchaser cannot have a better title than what his vender had. Judgment Link: <a href=\"https://main.sci.gov.in/jonew/judis/34851.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/34851.pdf</a></font></h4><h4><font color=\"#9c0000\">2. Ramlal v. Phagua, (2006) 1 SCC 168</font></h4><h4><br></h4><h4><br></h4><h4><br></h4><h4><br></h4>', '6ad35ef184270afbcecb6a500cf3fd3c.png', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2013-02-21', 1, '', '', '2021-02-18 20:02:22', '2021-02-18 20:12:54'),
(479, 'zillN6boL7mZE2071i5a5Q9Yv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Section 89. Settlement of disputes outside the Court. Full court fee is refundable even for out-of-court dispute settlement. Supreme Court. ', '<h4>The High Court of Judicature at Madras  vs M.C. Subramaniam & ors.<br>Special Leave Petition 3063¬3064 of 2021<br>Decided on 17 February 2021<br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/3869/3869_2021_40_6_26276_Judgement_17-Feb-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/3869/3869_2021_40_6_26276_Judgement_17-Feb-2021.pdf</a><br>The special leave petitions arise out of judgement of the High Court of Madras ordering refund of the court fees in a matter settled out of court. <br></h4><h4>10. The gravamen of the Petitioner’s contentions is that Section 69­A of the Tamil Nadu Court Fees and Suit Valuation   Act only contemplates refund of court fees in those cases where the Court itself refers the parties to any of the alternative dispute settlement mechanisms listed in Section 89 of the CPC. That hence it does not apply to circumstances such as in the present case, where the parties, without any reference by the Court, privately agreed to settle their dispute outside the modes contemplated under Section 89 of the CPC. <br></h4><h4>12. The provisions of Section 89 of CPC must be understood in the backdrop of the longstanding proliferation of litigation in the civil courts,   which   has   placed   undue   burden   on   the   judicialsystem, forcing speedy justice to become a casualty. As the Law Commission has observed in its 238th Report on Amendment of Section   89   of   the   Code of   Civil   Procedure   1908 and Allied Provisions, Section 89 has now made it incumbent on civil courts to   strive   towards   diverting   civil   disputes   towards   alternative dispute   resolution   processes,   and   encourage   their   settlement outside of court.  These observations make the object and purpose of Section 89 crystal clear – to facilitate private settlements, and enable lightening of the overcrowded docket of the  Indian   judiciary.   This   purpose,   being   sacrosanct   and imperative for the effecting of timely justice in Indian courts, also informs Section 69­A of the 1955 Act, which further encourages settlements by providing for refund of court fee. This overarching and beneficent object and purpose of the two provisions must, therefore, inform this Court’s interpretation thereof. <br></h4><h4>13.   Before   expounding   further   on   our   interpretation   of   the aforesaid   provisions,   regard   must   be   had   to   the  following postulation of this Court’s interpretive role in  Directorate   of Enforcement v. Deepak Mahajan, 1994 3 SCC 440 – </h4><h4 style=\"margin-left: 25px;\">“24…Though   the   function   of   the   Courts   is   only   to expound the law and not to legislate, nonetheless the legislature cannot  be asked to sit to resolve   the difficulties in the implementation of its intention and the spirit of the law. In such circumstances, it is the duty of the court to mould or creatively interpret the legislation by liberally interpreting the statute.<br>25. In Maxwell on Interpretation of Statutes, Tenth Edn. at page 229, the following passage is found:</h4><h4 style=\"margin-left: 25px;\">“Where   the   language   of   a   statute,   in   its   ordinary meaning   and   grammatical   construction,   leads   to   a manifest contradiction of the apparent purpose of the enactment,   or   to   some   inconvenience   or   absurdity, hardship   or   injustice,  presumably   not   intended,   a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. … Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman\'s unskilfulness or ignorance of the law, except   in   a   case   of   necessity,   or   the   absolute intractability   of   the   language used.”   </h4><h4>Therefore, it is well­ settled that the Courts may, in order to avoid   any   difficulty   or   injustice   resulting   from   inadvertent ambiguity in the language of a statute, mould the interpretation of the same so as to achieve the true purpose of the enactment. This may include expanding the scope of the relevant provisions to cover situations which are not strictly encapsulated in the language used therein. <br></h4><h4>14. This principle of statutory interpretation has been affirmed more   recently   in   the   decision   in  Shailesh   Dhairyawan  v. Mohan Balkrishna Lulla, (2016) 3 SCC 619 – </h4><h4 style=\"margin-left: 25px;\">“33.…Though   the   literal   rule   of   interpretation,   till some time ago, was treated as the “golden rule”, it is now the doctrine of purposive interpretation which is predominant, particularly in those cases where literal interpretation may not serve the purpose or may lead to absurdity. If it brings about an end which is at variance with the purpose of statute, that cannot be countenanced.” </h4><h4>This was followed in the subsequent decision of this Court in Anurag Mittal v. Shaily Mishra Mittal, (2018) 9 SCC 691. </h4><h4>15.  In   light   of   these   established   principles   of   statutory interpretation, we shall now proceed to advert to the specific provisions that are the subject of the present controversy. The narrow interpretation of Section 89 of CPC and Section 69­A of the 1955 Act sought to be imposed by the Petitioner would lead to an outcome wherein parties who are referred to a Mediation Centre or other centres by the Court will be entitled to a full refund of their court fee; whilst parties who similarly save the Court’s time and resources by privately settling their dispute themselves will be deprived of the same benefit, simply because they did not require the Court’s interference to seek a settlement. Such an interpretation, in our opinion, clearly leads to an absurd and unjust outcome, where two classes of parties who are equally facilitating the object and purpose of the aforesaid provisions are treated differentially, with one class being deprived of the benefit of   Section   69­A   of   the   1955   Act.  <br></h4><h4>16.  It is pertinent to note that the view taken by the High Court in the impugned judgement has been affirmed by the High Courts in other states as well. Reference may be had to the decision of the Karnataka High Court in  Kamalamma  & ors.  v.  Honnali Taluk  Agricultural Produce Co­operative Marketing Society Ltd., (2010) 1 AIR Kar. R 279, wherein it was held as follows:</h4><h4 style=\"margin-left: 25px;\">“6. Whether the parties to a suit or appeal or any other proceeding get their dispute settled amicably through Arbitration, or meditation or conciliation in the Lok Adalath, by invoking provisions of Section 89, C.P. C. or   they   get the same settled  between themselves without   the   intervention   of   any Arbitrator/Mediator/Conciliators   in   Lokadalath   etc., and   without   invoking   the  provision   of   Section   89, C.P.C.,  the fact remains that they get their dispute settled without the intervention of the Court. If they get their dispute settled by invoking Section 89, C.P.C., in that   event   the   State   may   have   to   incur   some expenditure   but,   if   they   get   their   dispute   settled between   themselves   without   the   intervention   of   the Court or anyone else, such as arbitrator/mediator etc., the State would not be incurring any expenditure. This being so, I am of the considered opinion that whether the parties to a litigation get their dispute settled by invoking   Section   89,   C.P.C.   or   they   get   the   same settled between themselves without invoking Section 89,   C.P.C.,   the   party   paying   Court ­Fees   in   respect thereof should be entitled to the refund of full CourtFees as provided under Section 16 of the Court­Fees Act, 1870.”</h4><h4>19. We find ourselves in agreement with the approach taken by the High Courts in the decisions stated supra. The purpose of Section 69­A is to reward parties who have chosen to withdraw their litigations in favour of more conciliatory dispute settlement mechanisms, thus saving the time and resources of the Court, by enabling them to claim refund of the court fees deposited by them. Such refund of court fee, though it may not be connected to the substance of the dispute between the parties, is certainly an  ancillary   economic   incentive for   pushing   them   towards exploring   alternative   methods   of   dispute   settlement.   As the Karnataka   High   Court   has   rightly   observed   in  Kamalamma, parties who have agreed to settle their disputes without requiring judicial intervention under Section 89, CPC are even more deserving of this benefit. This is because by choosing to resolve their claims themselves, they have saved the State of the logistical hassle of arranging for a third­party institution to settle the   dispute. Though   arbitration   and   mediation   are   certainly salutary dispute resolution mechanisms, we also find that the importance of private amicable negotiation between the parties cannot be understated. In our view, there is no justifiable reason why Section 69­A should only incentivize the methods of out­of­ court   settlement   stated   in   Section   89,   CPC   and   afford   stepbrotherly treatment to other methods availed of by the parties.  Admittedly,   there   may   be   situations   wherein   the   parties have after the course of a long­ drawn trial, or multiple frivolous litigations, approached the Court seeking refund of court fees in the guise of having settled their disputes. In such cases, the Court may, having regard to the previous conduct of the parties and  the  principles of  equity, refuse to  grant  relief under the relevant rules pertaining to court fees. However, we do not find the present case as being of such nature. </h4><h4>20. Thus,  even  though a  strict  construction of  the  terms of Section 89, CPC and 69­A of the 1955 Act may not encompass such private negotiations and settlements between the parties, we emphasize that the participants in such settlements will be entitled to the same benefits as those who have been referred to explore alternate dispute settlement methods under Section 89, CPC. Indeed, we find it puzzling that the Petitioner should be so vehemently   opposed   to   granting   such   benefit.   Though   the Registry/State Government will be losing a one­time court fee in the short term, they will be saved the expense and opportunity cost of managing an endless cycle of litigation in the long term. It is therefore in their own interest to allow the Respondent No. 1’s claim. </h4><h4><font color=\"#9c0000\">21. Thus, in our view, the High Court was correct in holding that Section 89 of the CPC and Section 69­A of the 1955 Act be interpreted liberally. In view of this broad purposive construction, we affirm the High Court’s conclusion, and hold that Section 89 of CPC shall cover, and the benefit of Section 69­A of the 1955 Act   shall   also   extend   to,   all   methods   of  out­-of­-court   dispute settlement between parties that the Court subsequently finds to have been legally arrived at. This would, thus, cover the present controversy, wherein a private settlement was arrived at, and a memo to withdraw the appeal was filed before the High Court. In such a case as well, the appellant, i.e., Respondent No. 1 herein would be entitled to refund of court fee. </font></h4><div><br></div><p><br></p>', '285424e8b2d24d966e55a4db07f0685b.jpg', 'e6f7619bf24ebce0853a06a3f1fc660d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-17', 1, '', '', '2021-02-19 01:49:16', '2021-02-19 02:18:31');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(480, 'bRBrWtgQfjvyk7e9jlMfoFyGb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Litigant challenges his Opponent to take oath in a Temple. Loses the case. see Supreme Court judgment on Oaths Act 1872.  ', '<h4><i style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 0);\">Full judgment&nbsp;(relevant portion highlighted in red)</i><br></h4><h4>IN THE SUPREME COURT OF INDIA</h4><h4>K.M. Singh v. Secy., Assn. of Indian Universities.&nbsp;</h4><h4>Special Leave Petition (Civil) No. 10436 of 1991†, decided on April 21, 1992.</h4><h4>Justice S. Ratnavel Pandian, Justice K.Jayachandra Reddy and Justice Yogeshwar Dayal.&nbsp;</h4><h4>Reported in (1992) 3 SCC 129.&nbsp;</h4><h4>Justice Yogeshwar Dayal.— This special leave petition filed by Shri K.M. Singh, who was a Finance Officer of the Association of Indian Universities, AIU House, 16 Kotla Marg, New Delhi, is against the judgment dated April 26, 1991 passed by the learned Single Judge of the High Court of Delhi in Civil Revision No. 359 of 1989.</h4><h4>2. In the revision petition the petitioner had sought to set aside an order dated January 30, 1989 passed by the learned Additional District Judge, Delhi, dismissing the application filed on his behalf wherein he had prayed for cancelling an order dated October 14, 1988, vide which a part of the claim of the suit of the petitioner/plaintiff covered by issue No. 1 was ordered to be dismissed as withdrawn.</h4><h4>3. The facts giving rise to the filing of the revision petition were that the petitioner had filed a suit inter alia for declaring that the resignation tendered by the petitioner/plaintiff was involuntary and a result of fraud, coercion and threat as well as the inducement as alleged in the plaint. This plea of the petitioner was subject-matter of issue No. 1.</h4><h4><font color=\"#9c0000\">4. During the course of the proceedings the petitioner had filed an application dated October 14, 1988 purporting to be under Order 10, Rule 2 read with Section 151 of the Code of Civil Procedure. In this application it was prayed that if Shri Amrik Singh and Shri R.P. Mahendroo, officers of defendant 1, took special oath in Gurudwara and Mandir respectively to the effect that the resignation of the plaintiff was not extracted from him on April 5, 1976 under duress, fear, inducement, fraud, coercion then that part of the claim might be dismissed as withdrawn. The plaintiff/petitioner in fact made this statement before the Additional District Judge and Shri Amrik Singh and Shri Mahendroo accepted the said challenge. They were ready to take special oath in Gurudwara and Mandir in terms of the plaintiff’s statement. Consequently a local commissioner was appointed by the Additional District Judge who administered the oath to the said two persons in Gurudwara and Mandir respectively, as desired by the plaintiff/petitioner and accordingly the learned Additional District Judge ordered on October 14, 1988 dismissal of that part of the claim covered by issue No. 1 as withdrawn. The revision petition was directed against this order as well.</font></h4><h4>5. That on the next date i.e. October 15, 1988 the plaintiff/petitioner filed another application with the prayer to decide the aforesaid issue No. 1 on merits and evidence and the defendants may not be allowed to take advantage of the blunder committed by the plaintiff/petitioner and for cancelling the order dated October 14, 1988. This application dated October 15, 1988 was dismissed by the trial court by order dated January 30, 1989.<br></h4><h4>6. In the reply filed to the special leave petition it is pointed out that the suit was fixed on October 14, 1988 for further evidence of the defendants and in fact on the said date Dr Amrik Singh was to be cross-examined by the petitioner. Dr Amrik Singh as well as Shri R.P. Mahendroo, Under Secretary of the Association of Indian Universities were present in the Court and when the suit was called the petitioner filed the application dated October 14, 1988 wherein he had offered to abide by the statement made by Dr Amrik Singh and Shri R.P. Mahendroo. Whereupon both Dr Amrik Singh and Shri R.P. Mahendroo expressed their willingness and agreed to take oath and accepted the offer. The petitioner affirmed the same and made a further statement before the Court as under:</h4><h4>“Dr Amrik Singh DW present in the Court and R.P. Mahendroo, officials of the respondents take special oath in Gurudwara and Mandir respectively to the effect that the resignation of the plaintiff K.M. Singh was not extracted from him on April 5, 1976 under duress, fear, inducement, fraud or coercion then that portion of the plaint shall be dismissed as withdrawn.”</h4><h4>The said offer made by the petitioner was put to both Dr Amrik Singh and Shri Mahendroo and both of them accepted the same and also made the following statement in Court as under:</h4><h4>“We are ready to take special oath in the Mandir and Gurudwara as stated by the plaintiff in his statement above.”</h4><h4>In view of the offer made by the petitioner and accepted by both of them the Court thereafter passed the order reading as under:</h4><h4>“Present — Plaintiff in person. Counsel for the defendant.</h4><h4>One witness of the defendant Dr Amrik Singh is present for further cross-examination by the plaintiff. However, the plaintiff has filed an application under Rule 2 read with Section 151 CPC and has stated that if the said witness of the defendant and Shri R.P. Mahendroo, Under Secretary of the defendant 1, takes special oath in the Gurudwara and Mandir respectively to the effect that the resignation of the plaintiff was not extracted from him on April 5, 1976 under duress, fear, inducement, fraud or coercion, then that part of the claim of the plaintiff may be deemed to be dismissed as withdrawn. The witness and official of the defendant stated that they are ready to take the said special oath in the Gurudwara and Mandir respectively. Let statements be recorded. Statements have been recorded separately. The application filed by the plaintiff stands disposed of. The counsel for the defendant states that the defendant is ready and willing to pay the admitted part claim, if any, of the plaintiff. The plaintiff submits direction to go along with the parties and the witness to the Gurudwara and Mandir respectively for taking special oath. The plaintiff states that he is ready to bear the expenses of the Local Commissioner. Accordingly, I hereby appoint Shri A.P.S. Ahluwalia, Advocate, as Local Commissioner present in Court with the direction to visit along with the parties to Gurudwara Sisganj Sahib and Gauri Shanker Mandir today at 1 p.m. to take special oath by the said persons. His fee is fixed at Rs 500 to be paid by the plaintiff. The plaintiff has paid the fee of the Local Commissioner in the Court.”</h4><h4>7. Thereafter the petitioner paid the fee fixed by the trial court to the Local Commissioner. The time and date for visit to Gurudwara and Mandir were fixed by the Court at the instance of the petitioner as well as Dr Amrik Singh and Shri Mahendroo. As per the directions of the Court the Local Commissioner in the company of the petitioner, Dr Amrik Singh and Shri Mahendroo went to Gurudwara Sisganj as well as Gauri Shanker Mandir both situated in Chandni Chowk, Delhi where the Local Commissioner administered the oath to both of them and their statements were recorded. Both of them denied that the plaintiff’s resignation was obtained by fraud, coercion, threat and or that he was induced to tender the resignation. After the said oath was taken the matter was taken up in the afternoon session by the trial court when the Local Commissioner submitted his report to the Court whereupon the trial court passed the following order:</h4><h4>“Present — As before.</h4><h4>The Local Commissioner has filed his report to the effect that he has got the special oath administered to the witness and official of the defendant. In view of the statement of the plaintiff recorded&nbsp; earlier the suit of the plaintiff with regard to his resignation and consequential reinstatement which is covered by issue No. 1 stands dismissed as withdrawn.</h4><h4>Now to come up for making payment by the defendant of the other claim of the plaintiff, if any, on November 4, 1988.”</h4><h4>8. As stated earlier, thereafter, on October 15, 1988 the application was filed for recalling this order dismissing a part of the suit as withdrawn. The trial court, however, took the view that Section 20 of the Evidence Act was applicable and it also took the view that the repeal of the Oaths Act, 1873 by Section 9 of the Oaths Act, 1969 nowhere debar the parties from entering into any contract.</h4><h4>9. High Court, as stated earlier, dismissed the revision petition and agreed with the view of the trial court. Before the High Court reliance was placed on the decision of the Karnataka High Court in Pacharanda Nanjappa v. Pacharanda Belliappa1. The High Court, however, did not follow the aforesaid decision and preferred to decide the matter in view of the decisions of the Madras High Court in J.A. Munuswami Naidu v. K.S.P. Thyagaraya Chettiar2; Vasudeva Ghanbog v. Naraina Pai3; decision of the Punjab and Haryana High Court in Rustam v. Financial Commissioner4 and Full Bench decision of Punjab and Haryana High Court in Mrs Florabel Skinner v. Jai Bajrang Kala Mandir Ram Lila Mandal, Hissar5.</h4><h4>10. Before us also the petitioner, who appeared in person, submitted that in view of the repeal of the Oaths Act, 1873 by the Oaths Act, 1969 the suit could not be decided on the basis of special oath. The petitioner also relied on the decision of the Orissa High Court in Ananda Chandra Sahu v. Ananta Khuntia6.</h4><h4>11. It may be noticed that both the learned Single Judge of the Karnataka High Court as well as the learned Division Bench of the Orissa High Court were correct in noticing the effect of repeal of the Oaths Act, 1873 by Section 9 of the Oaths Act, 1969. But it appears the provisions of Section 20 of the&nbsp; Evidence Act were not brought to their notice. The learned Judges of the Karnataka High Court and Orissa High Court were right in observing in what cases the provisions of the Oaths Act, 1873 was to continue to govern and in which cases they would cease to apply. But as stated earlier, the provisions of Section 20 of the Evidence Act were not brought to their notice. Section 20 of the Evidence Act reads as follows:</h4><h4>“20. Admissions by persons expressly referred to by party to suit.— Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions.</h4><h4>Illustration</h4><h4>The question is, whether a horse sold by A to B is sound.</h4><h4>A says to B — ‘Go and ask C, C knows all about it.’ C’s statement is an admission.”</h4><h4>12. In Hirachand Kothari v. State of Rajasthan7 this Court held thus: (SCC p. 22, para 7)</h4><h4>“Section 20 is the second exception to the general rule laid down in Section 18. It deals with one class of vicarious admissions. Where a party refers to a third person for some information or an opinion on a matter in dispute, the statements made by the third person are receivable as admissions against the person referring. The word ‘information’ occurring in Section 20 is not to be understood in the sense that the parties desired to know something which none of them had any knowledge of. Where there is a dispute as regards a certain question and the Court is in need of information regarding the truth on that point, any statement which the referee may make is nevertheless information within the purview of Section 20 and is admissible. The reason behind admissibility of the statement is that when a party refers to another person for a statement of his views, the party approves of his utterance in anticipation and adopts that as his own. The principle is the same as that of reference to arbitration.</h4><h4>The reference under Section 20 may be by express words or by conduct, but in any case there must be a clear admission to refer and such admissions are generally conclusive. Admissions may operate as estoppel and they do so where parties had agreed to abide by them.”</h4><h4>13. A similar question arose in J.A. Munuswami Naidu2 before the Division Bench of the Madras High Court. There a suit had been filed on June 16, 1971 for recovery of money against the appellant on the foot of a security bond. The second respondent in the suit was a puisne mortgagee. The appellant filed the written statement that the respondent, the first mortgagee had fraudulently suppressed the payment of interest in the security bond and if the proper account was taken the money will be due to the first respondent. When the suit was taken up for trial, the plaintiff agreed to take a special oath on his family deity that for the suit&nbsp; security bond no money except those shown by way of endorsement was received by him. It was also agreed that the plaintiff-mortgagee taking such an oath, the suit may be decreed. The plaintiff took a special oath and the suit was decreed. The judgment debtor filed an un-numbered execution application praying that the decree be declared as a nullity having been passed by the civil court having no jurisdiction. The executing court dismissed the objections to the execution and the matter came up in appeal before the High Court. The learned Single Judge of the High Court dismissed the appeal. Whereupon the matter was taken up before the Division Bench. Kailasam, C.J. (as His Lordship then was) and Balasubramanyam, J. dismissed the Letters Patent Appeal. It was submitted before the Division Bench that because the Oaths Act, 1873 has been repealed, what the plaintiff had stated on special oath is not an evidence. The learned Single Judge who had heard the appeal was confronted with the arguments that the date on which the special oath was taken the Oaths Act, 1873, which provided that when a special oath was taken under Section 10, it would be conclusive against the person who offered, was no longer in force as the said Act had been repealed in 1960 and the new Act of 1969 dispensed with the procedure as to the taking of the special oath and its consequences. It was common ground that the special oath was taken in ignorance of the fact that the Oaths Act, 1873, under which the procedure as to the taking of special oath was admitted, had been repealed and that the new Oaths Act had no provision for such a procedure. The Division Bench observed that they could not accept the contention that because Oaths Act, 1873 has been repealed, what the plaintiff has stated on special oath is not an evidence. Earlier the Single Judge had taken the same view.</h4><h4>14. The question directly in issue came up before a Division Bench of the Punjab and Haryana High Court in Thakur Singh v. Inder Singh8. The Division Bench took the view that:</h4><h4>“The only effect of exclusion of Sections 9 to 12 of the Oaths Act, 1873 by Oaths Act, 1969 is that if any party to any judicial proceeding offers to be bound by any special oath and the Court thinks it fit to administer such an oath to the other party consenting thereto and such oath is taken by the other party, the evidence given on such oath as against persons who offered to be bound as aforesaid would no more be conclusive proof of the matter stated in such deposition. Where an agreement was arrived at between the counsel for parties that if the defendant were to take oath in a particular Gurudwara stating that the suit land was not of plaintiff and that defendant had not executed any agreement in favour of plaintiff, the suit of plaintiff be dismissed and in pursuance of the order of the&nbsp; Court on the basis of agreement, the defendant did take oath, there being no special oath either prescribed or taken and the suit having been dismissed on the basis of such oath.</h4><h4>Held that the compromise arrived at between the counsel for the plaintiff on behalf of his client and the defendant-appellant would be covered by Section 20 of the Evidence Act and the plaintiff would be bound by the statement made by the defendant if the same is found to have been made strictly in accordance with the terms offered by him.”</h4><h4><font color=\"#ce0000\">15. It will be noticed that in the present case the oath was administered as per plaintiff’s/petitioner’s statement and, therefore, there is thus no manner of doubt that the oath taken by two persons in pursuance of the offer of the petitioner amounted to admission of respondent’s claim on his part within the meaning of Section 20 of the Evidence Act. The two persons were the nominees of the plaintiff and the statements of the nominees by virtue of Section 20 of the Evidence Act would be treated as an admission of the parties. Thus the orders of the trial court dated October 14, 1988 and January 30, 1989 were unassailable and the High Court has rightly dismissed the revision petition.</font><br></h4><h4>16. The special leave petition is accordingly dismissed without any order as to costs.</h4><h4>———</h4><h4>†<span style=\"white-space:pre\">	</span>From the Judgment and Order dated April 26, 1991 of the Delhi High Court in C.R. No. 359 of 1989</h4><h4>1<span style=\"white-space:pre\">	</span>(1979) 29 ILR 2018 (Karn)</h4><h4>2<span style=\"white-space:pre\">	</span>AIR 1977 Mad 273 : (1977) 1 MLJ 323 : 90 Mad LW 320</h4><h4>3<span style=\"white-space:pre\">	</span>ILR (1880) 2 Mad 356 : 3 Ind Jur 56</h4><h4>4<span style=\"white-space:pre\">	</span>(1981) 83 PLR 759</h4><h4>5<span style=\"white-space:pre\">	</span>AIR 1980 P&amp;H 284 : ILR (1980) 2 P&amp;H 333</h4><h4>6<span style=\"white-space:pre\">	</span>AIR 1983 Ori 250 : (1983) 55 Cut LT 505</h4><h4>7<span style=\"white-space:pre\">	</span>1985 Supp SCC 17</h4><h4>8<span style=\"white-space:pre\">	</span>AIR 1976 P&amp;H 287 : 78 Punj LR 601 : 1976 Rev LR 567</h4><h4><br></h4>', '3475156e0e04910255003228785e4290.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1992-04-21', 1, '', '', '2021-02-19 02:39:31', '2021-02-19 02:52:34'),
(481, 'd14gXP2JgMcZSXRmonJQj26zv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Election Law. A candidate has a vested right to seek recount of votes. Improper refusal of recount can be challenged by way of writ petition. Filing of election petition is not necessary. Karnataka High Court ', '<h4>Kamalamma and another vs The State of Karnataka and others. Writ Petition 200017 of 2021 decided on 13 January 2021. Judgment <a href=\"Link:&nbsp;http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/363930/1/WP200017-21-13-01-2021.pdf\" target=\"_blank\">Link:&nbsp;http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/363930/1/WP200017-21-13-01-2021.pdf</a></h4><h4><font color=\"#ce0000\">Relevant paragraphs:</font>&nbsp;9(i)Whether the contestant of the election and/ or his election agent has vested right for seeking for a recount of the votes ?</h4><h4>10.7 In view of the above, I answer point No.1 by holding that any candidate and/or his agent would have a vested right to seek for recount which is required to be considered in a proper and required manner by the Returning Officer.&nbsp;<br>11. Whether on refusal to count the said votes, the petitioner contesting could approach this Court by a writ petition or would a Election Petition have to be filed in terms of Section 19(1)(d)(iii) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 ?<br>11.1.The contention of Sri.Shivakumar Tengli, learned AGA is that the request should have been made before announcing the election result and not after that. However, a perusal of Rule 71(1) would indicate that it is only after the result sheet is recorded in Form No.31 and announced, that a request of recount can be made. Therefore, it cannot be said that there was any delay on the part of the petitioner or his agent in seeking for a recount. Such a recount could&nbsp; only be demanded after announcement of result and not before.<br>11.2.The contention of Sri.Amaresh S.Roja, learned counsel for respondents No.2, 4 and 5 is that in terms of Section 19(1)(d)(iii) since the claim of the petitioner is that the vote has been improperly received, only an election petition is maintainable.<br>11.3.At present the issue is not as regards whether there is any improper reception of votes or not. What the election agent- petitioner No.2 has sought is only a recount. It is upto the petitioner after the recount whether to challenge the votes on account of improper reception refusal for rejection or not. At present the only question being that of recounting, I am of the considered opinion that the same would not come within the purview of Section 19(1)(d)(iii) of the Act. As such, rejection of recount cannot be a ground for filing of a election petition per se. The petitioner would also have a liberty to challenge the order of rejection of recount by filing a writ petition like that filed in the present case seeking for necessary direction to the Returning Officer for recount of the votes.<br>11.4.<span style=\"white-space:pre\">	</span>Hence, I answer point No.2 by holding that where a recount is refused, it is not required for the candidate to file a election petition, a candidate can also file writ petition challenging the said refusal.<br>12. In the present case is the refusal made by the Respondent No.5-Returning Officer valid ?<br>As discussed above, the difference of votes being only 3 translating to 0.33% difference of votes of the two candidates, I am of the considered opinion that the Returning Officer ought to have allowed the recount and not refused the same.<br>13.What Order ?<br>13.1.<span style=\"white-space:pre\">	</span>In view of the above discussion, the writ petition is allowed.<br>13.2.<span style=\"white-space:pre\">	</span>The endorsement dated 13.12.2020 issued by the Returning Officer is quashed by issuing a certiorari.<br>13.3.<span style=\"white-space:pre\">	</span>Respondent No.5 is directed to recount the votes of Ward No.1 K.Gudadinni Gram Panchayat by considering application dated 30.12.2020 within a period of seven days from today by issuance of a mandamus.<br>13.4.<span style=\"white-space:pre\">	</span>Writ petition is allowed.<br><br></h4>', '7c49cc8c693e12b4db3deaafae696601.jpg', '5c8af95570a6454bb38d8bfd91380c88.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-13', 1, '', '', '2021-02-19 03:30:14', '2021-02-19 03:31:42'),
(482, 'Xn4iOKjiGbmuSr3FZx6BSO1dl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for declaration. If the plaintiff is not entitled for whole of the property Court can pass a decree for partition of his share without driving him to file another suit for partition. Karnataka High Court. ', '<h4><b><span style=\"background-color: rgb(255, 255, 0);\"><i>Full judgment </i></span><br></b></h4><h4></h4><table class=\"table table-bordered\"><tbody><tr><td><h4 style=\"text-align: center;\"><font color=\"#000000\"><b>IN THE HIGH COURT OF KARNATAKA AT BANGALORE<br></b></font><font color=\"#000000\"><b>Rangappa v. Jayamma<br></b></font><font color=\"#000000\"><b>Regular First Appeal 231 of 1987, decided on 17  June 1987<br></b></font><font color=\"#000000\"><b>Justice P.P. Bopanna and Justice K.A. Swami<br></b></font><font color=\"#000000\"><b>Reported in 1987 SCC OnLine Kar 133 - ILR 1987 KAR 2889  - (1987) 2 Kant LJ 369.</b></font></h4></td></tr></tbody></table><h4><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Justice K.A. Swami :— This appeal by the plaintiff is preferred against the judgment and decree dated 24-10-1986 passed by the Learned  Additional Civil Judge, Shimoga in O.S. No. 10/1985 declaring that the plaintiff is the owner of one half of the suit properties and refusing to grant an injunction as prayed for and also further refusing to pass a decree for Rs. 8000/- The Trial Court has held that the plaintiff and the defendant are the owners of the suit properties and each of them is entitled to share them equally.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>2. Having regard to the contentions urged, only two points arise for consideration. They are:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>1) Whether the Trial Court is justified in law in not giving effect to the will dated 10-7-1980 Ex. P-1 claimed to have been executed by Smt. Nagamma?</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>2) Whether the Trial Court is justified in law in not passing a decree for partition in conformity with the finding arrived at by it?</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>POINT NO. 1:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>3. The will Ex. P. 1 as per the case of the plaintiff was executed by Smt. Nagamma on 10-7-1980 in favour of the plaintiff-appellant. It is unregistered. As per the terms of the will, it is the case of the plaintiff that he is entitled to be declared as owner of the suit properties to the extent of ¾ share. The Trial Court has held that the will Ex. P. 1 is not genuine and it is not free from suspicious circumstances. Accordingly it has rejected the will. It is very relevant to notice that subsequent to the death of Nagamma-the testator and prior to filing of the present suit, there was a suit O.S. 14/1984-filed by the defendant against the plaintiff claiming title to the suit properties. If really there was a will executed by Smt. Nagamma as per Ex. P. 1, the very first defence in that suit would have been the will itself. This will was not made a defence in O.S. No. 14/1984 by the present plaintiff who was the defendant in that suit. This conduct of the plaintiff being inconsistent with the existence of the will, as rightly held by the Trial Court, creates a great suspicion about the  execution of the will by Smt. Nagamma. In addition to this, Learned Trial Judge has also referred to number of suspicious circumstances such as the plaintiff himself taking an active part in getting the document-Ex. P. 1-executed by Nagamma, and further there being no circumstance to show that the late Smt. Nagamma was in any way ill-disposed towards the defendant. As far as the plaintiff and defendant are concerned, both are great grand step-children of Smt. Nagamma. Therefore, there was no reason whatsoever to Smt. Nagamma to exclude or deprive the defendant from her legitimate share in the suit properties. The evidence of the attestors to the will is also in variance. They have given different versions. Hence taking into consideration the relevant evidence on record, we are satisfied that the finding recorded by the trial Court that the plaintiff has failed to establish due execution of the will by Smt. Nagamma is correct and it does not call for interference. Accordingly point No. 1 is answered in the affirmative.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>POINT NO. 2:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>4. The grievance made by the appellant is that the Trial Court having come to the conclusion that the plaintiff is entitled to one half share in the suit properties, it ought to have passed a decree for partition and separate possession of his half share. Para 41 of the judgment of the Trial Court is brought to our notice to show that in fact the defendant herself requested the Court to grant a decree for partition to avoid another suit for partition. The Trial Court is of the view that since it is a suit for a declaration of title and injunction, it is not just and appropriate to pass a decree for partition and separate possession. In the facts and circumstances of the case, we are of the view, that the Trial Court has taken a very technical view of the matter.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>5. There is no doubt that the plaintiff-appellant has sought for a declaration of his title to the suit properties and  for permanent injunction and also for recovery of a sum of Rs. 8000/- being the past mesne profits. The plaintiff has claimed that he is the exclusive owner of the suit properties. The Trial Court has held that the plaintiff and the defendant are entitled to one half share each. The facts established are: that the suit properties originally belonged to one Dodda Rangappa. He died in the year 1945. He had three wives by name Balamma, Ningamma and Nagamma Balamma pre-deceased her husband Dodda Rangappa, leaving no issue. Nagamma died issueless in the year 1982. The plaintiff claimed that Nagamma had executed a will dated 10-7-1981 (Ex. P. 1) in his favour, the due execution of which, as found by us on point No. 1, has not been proved. Ningamma died leaving behind her only daughter Gangamma. She executed a gift deed dated 2-12-1952 Ex. D.2 in respect of the suit properties in favour of Gangamma. This Gangamma had a daughter by name Gowramma. The plaintiff is the son of the said Gangamma and the defendant is her daughter. The defendant is elder to the plaintiff. Thus the plaintiff and the defendant are brother and sister. Gowramma succeeded to the suit properties to the extent of the share of Ningamma as a heir to her mother Gangamma who got it through the gift deed Ex. D.2 As far as the share of Nagamma who died in the year 1982 is concerned, it has devolved upon the plaintiff and the defendant equally. Thus apart from the plaintiff and the defendant, there are no other heirs of Gangamma entitled to have a share in the suit properties. Apart from the suit properties, there are no other properties of Gowramma and Nagamma in which the plaintiff and the defendant are entitled to a share.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>6. In this background, the point that arises for consideration is, whether in these circumstances, the trial Court is justified in law in refusing to pass a preliminary decree for partition only on the ground that it is not one of the reliefs  sought for in the suit and the suit is only for a declaration of title and injunction:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>7. Order VII Rule 7 C.P.C. reads thus:</b></span></div><div style=\"text-align: justify; margin-left: 25px;\"><span style=\"font-size: 1.3125rem;\"><b>“Relief to be specifically stated: Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>The words “and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for” are wide enough to empower the Court to grant such relief as the plaintiff is entitled to, on the facts established on the evidence on record, even if such relief has not been specifically prayed for.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>8.1. The provisions of Order VII Rule 7 of the C.P. Code are so widely worded that they do enable the Court to pass a decree for partition in a suit for declaration of title to immoveable property and possession thereof where it turns out that the plaintiff is not entitled to all the interest claimed by him in the suit property. In such a situation there is nothing unusual in giving relief to the parties by directing partition of the suit property according to the shares of the parties established in the suit. The normal rule that relief not founded on the pleadings should not be granted is not without an exception. Where substantial matters constituting the title of all the parties are touched in the issues and have been fully put in evidence, the case does not fall within the aforesaid rule. The Court has to look into the substance of the claim in determining the nature of the relief to be granted. Of course, the Court while moulding the relief must take care to see that relief it grants is not inconsistent  with the plaintiff’s claim, and is based on the same cause of action on which the relief claimed in the suit, that it occasions no prejudice or causes embarassment to the other side; that it is not larger than the one claimed in the suit, even if, the plaintiff is really entitled to it, unless he amends the plaint; that it had not been barred by time on the date of presentation of the plaint.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>8.2. No doubt the plaintiff has sought for exclusive title and he has not been able to prove his exclusive title; but has been able to prove that he is entitled to a half share in the suit properties. When a party claims exclusive title to the suit property and is able to establish that he is entitled to half of the suit property, it will not be unusual for the Court to pass a decree for partition and possession of his half share. In fact such a relief flows from the relief prayed for in the plaint that he is the exclusive owner of the entire property. When a larger relief is claimed and what is established is not the entire relief claimed in the suit but a part of it, as whole includes a part, larger relief includes smaller relief, and it also arises out of the same cause of action. Therefore in the instant case, nothing prevented the Court to pass a decree for partition, in order to avoid another suit for partition and to give relief to the party in conformity with the right he had established</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>8.3. The Supreme Court in Kedarlal v. Harilal1 has observed that:</b></span></div><div style=\"text-align: justify; margin-left: 25px;\"><span style=\"font-size: 1.3125rem;\"><b>“The Court would be slow to throw out a claim on a mere technicality of pleading when the substance of a thing is there and no prejudice is caused to the other side and it is always open to a Court to give the plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>In the instant case, as already pointed out, even the defendant herself requested the Court to pass a decree for partition to avoid another suit for partition. Hence there is no question of any prejudice being caused to the defendant.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>8.4. In Gangaram Ramachandra v. Buthru Sao2, a Division Bench consisting of Bose and Hidayathulla, JJ. (as they were then) did not see any reason as to why “a suit for exclusive possession of 16 Annas cannot be turned into a suit for partition and possession of such share as may be determined to belong to the plaintiff, if the defendants, contend or it is found that the plaintiff is not entitled to the whole but only to a part”.</b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">8.5 A Division Bench of the High Court of Patna in Katiar Jute Mills Ltd. v. Calcutta Match Works3 has observed that the phrase </span><span style=\"font-size: 1.3125rem;\">“general or other relief” occurring in Order VII Rule 7 C.P.C. is an omnibus phrase wide enough to cover all such reliefs as are consistent with the averments made in the plaint.</span></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>8.6. Coming nearer, in M. Lingappa v. Chennabasappa4, a Division Bench of the former Mysore Chief Court held as valid a decree for partition and separate possession passed by the Trial Court to the extent of the share of the plaintiff-coparcener in a suit filed by him to set aside the alienation made during his minority by his undivided brother and mother of a specific portion of the whole of the family property and to eject the alienee from the entire lands alienated, on a finding that the alienation was not binding on the plaintiff’s share. It was further observed that:</b></span></div><div style=\"text-align: justify; margin-left: 25px;\"><span style=\"font-size: 1.3125rem;\"><b>“In these cases one object of the parties and the Courts must be to prevent unnecessary litigation so far as may be; the position of a purchaser from a member of a joint family is somewhat anomalous (Gurulingappa v. Nandappa (1896) ILR XXI Bom. 797) and in working out hit rights as between  himself and members of the family who are not responsible for the sale to him, we must bear in mind on the one hand the fact that his purchase is valid and on the other the fact that the members of the family are not to be prejudiced. It will therefore, be right to deal with each case on its own merits and not to try to lay down a hard and fast rule applicable to all cases. The question will be how can the rights of the contending parties be settled with the least inconvenience and without injustice to any of them.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Again in Ramaiah v. Siddalingappa5 following the aforesaid decision in Lingappa’s case4 in a suit, brought by the purchasers of specific plots in a particular property belonging to a Hindu Joint Family owning extensive property, for possession of what they had purchased and in the alternative for partition of that particular property, on being found that the plots sold to the plaintiffs were less than the share of the vendor at the time of the sale, it was held that the suit was maintainable though it was not for a general partition; that in the circumstances of the case, the plaintiffs were entitled to a decree for partition of a particular item of the joint family property they had purchased.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>8.7. In Rame Gowda v. Kuntalinge Gowda6, a Division Bench following the aforesaid two decisions in Lingappa4 and Ramaiah’s cases5 held thus:</b></span></div><div style=\"text-align: justify; margin-left: 25px;\"><span style=\"font-size: 1.3125rem;\"><b>“Though this is a suit for declaration of title and possession only, there is nothing unusual in giving relief to the parties by directing a partition of the properties as has been done in other cases of this kind in order to avoid unnecessary litigation and waste of time of Courts; vide Lingappa v. Chennabasappa (1917) 22 Mys. C.C.R. 293) and Ramaiah v. Siddalingappa (1942) 48 Mys. H.C.R. 317).”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Thus, apart from the fact that the view taken by us is quite in conformity with the provisions contained in Order VII  Rule 7 of C.P.C. which are in very wide terms, it also receives support from the several authorities referred to above. For the reasons stated above, we hold that the Trial Court is not justified in refusing to pass a preliminary decree for partition and separate possession of the plaintiff’s half share in the suit properties. Point No. 2 is accordingly answered in the negative and in favour of the plaintiff-appellant.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>9. For the reasons stated above, the appeal is allowed in part. In modification of the decree of the Trial Court, there shall be a preliminary decree for partition and separate possession of the plaintiff’s half share in the suit properties. The house property shall be partitioned through a Court Commissioner and the landed properties assessed to revenue shall be partitioned in accordance with the preliminary decree as per Section 54 of the C.P. Code. There shall be an enquiry into future mense profits under Order XX Rule 18(2) of the C.P. Code. In this appeal, there will be no order as to costs.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>———</b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">*</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">R.F.A. No. 231 of 1987.</span></b></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">1.</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">AIR 1952 SC 47.</span></b></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">2.</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">AIR 1952 Nagpur 202.</span></b></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">3.</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">AIR 1958 Patna 133.</span></b></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">4.</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">(1917) 22 Mysore Chief Court Reports, 293.</span></b></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">5.</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">(1943) 48 Mysore High Court Reports, 317.</span></b></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">6.</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">(1950) 55 Mysore High Court Reports, 240.</span></b></div></h4><p style=\"text-align: justify;\"><br></p>', 'fadca0164858db618d971daa127cb45f.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1987-06-17', 1, '', '', '2021-02-19 16:16:23', '2021-02-20 23:41:32');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(484, '55TGl3iDTDj2exCXOdagXsSZg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' I chose motherhood and the State chose to terminate me. Karnataka High Court sets aside termination of woman employee on the ground of her seeking maternity leave. Imposes cost of Rs. 25000 to be recovered from the Officer.  ', '<h4><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">B.S.Rajeswari vs State of Karnataka. Writ Petition 10677/2020 decided on 4 February 2021. Judgment Link: </span><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/366747/1/WP10677-20-04-02-2021.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/366747/1/WP10677-20-04-02-2021.pdf</a></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Relevant paragraphs: 7....Whether the termination/cancellation of contract of the petitioner on the ground of the petitioner seeking maternity leave is justified?</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>8. It is not in dispute that the petitioner has been working with the second respondent on contract basis, which is being renewed from time to time and the present contract in subsistence was in operation&nbsp; between 01.04.2019 and 30.03.2020. It is during the subsistence of this contract, the petitioner applied for leave on health grounds, though maternity was not the reason mentioned therein, it was ostensibly for the said reason......The reply of the second respondent is appalling and insensitive to the issue, the second respondent notwithstanding the condition of the petitioner intimidates the petitioner that if she does not report back to duties within three days, it would be construed that she is not willing to continue with the post and action would be taken.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>9. After her delivery, the petitioner represented to the second respondent to permit her to rejoin duties</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>10....Not accepting any of these i.e., maternity leave applications or the representations for rejoining duties, passed an order on 29.08.2019, cancelling the contract that was subsistence between the parties for the last 10 years,&nbsp; &nbsp; on the ground that the leave applications of the petitioner which was on the ground of pregnancy could not be considered as she was a contract employee and in terms of the contract, her services were dispensed with. It is here the cup of woe of the petitioner came to the brim only for the reason she opted to become a mother and sought maternity leave.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>11.....The United Nations recognized rights of both women and children.&nbsp; The foundation&nbsp; of those rights is contained in Article&nbsp; 1 of Universal declaration of Human Rights is ‘all human beings are born free and have equal dignity and rights’ these are inalienable. Article 42 of the Constitution of India depicts that the State shall make provision for securing just human conditions for work and&nbsp; maternity&nbsp; relief. Therefore, the right of seeking maternity relief by way of leave springs from Article 42 of the Constitution of India.&nbsp; Article 45 of the Constitution of India directs that the State&nbsp; shall&nbsp; endeavour to provide early child care and&nbsp; education&nbsp; for&nbsp; all&nbsp; children until they complete six years. Though the&nbsp; aforesaid&nbsp; Articles form Part IV of the&nbsp; Constitution i.e., Directive&nbsp; Principles&nbsp; &nbsp;of State Policy, the Apex Court in the case of Olga Tellis vs Bombay Municipal Corporation reported&nbsp; in&nbsp; (1985)&nbsp; 3&nbsp; SCC 545 and subsequently, in the case of Mohini Jain vs State of Karnataka reported&nbsp; in&nbsp; (1992)&nbsp; 3&nbsp; SCC&nbsp; 666&nbsp; has held&nbsp; that&nbsp; the&nbsp; directive&nbsp; principles&nbsp; are&nbsp; fundamentals&nbsp; in governance of the Country.</b></span></div></h4><h4 style=\"text-align: justify; \"><b>12.&nbsp;<span style=\"font-size: 1.3125rem;\">The very issue as to whether a contract employee is entitled to maternity leave under the Maternity Benefit Act, 1961 came up for consideration before the Apex Court in the case of Municipal Corporation of Delhi vs Female Workers (Muster Roll) and another reported in (2000) 3 SCC 224, wherein the Apex Court elaborately&nbsp; considering&nbsp; every&nbsp; facet&nbsp; of right of an employee notwithstanding the employee being on a nominal muster roll has held as follows;</span></b></h4><h4 style=\"text-align: justify; margin-left: 25px;\"><b>“6. Not long ago, the place of a woman in rural areas had been traditionally her home; but the poor illiterate women forced by sheer poverty now come out to seek various jobs so as to overcome the economic hardship. They also take up jobs which involve hard physical labour. The female workers who are engaged by the Corporation on muster roll have to work at the site of construction and repairing of roads. Their services have also been utilised for digging of trenches. Since they are engaged on daily wages, they, in order to earn their daily bread, work even in an advanced stage of pregnancy and also soon after delivery, unmindful of detriment to their health or to the health of the new-born. It is in this background that we have to look to our Constitution which, in its Preamble, promises social and economic justice.....”</b></h4><h4><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>13. In terms of the afore-extracted Act and the judgment of the Apex Court (supra), the petitioner was entitled to maternity leave of six months in all in terms of the Maternity Benefit (Amendment) Act, 2017. The action of the second respondent cannot be countenanced, as maternity or the Act does not classify&nbsp; or qualify a mother to be, a government servant, temporary employee, employee on contract basis or an employee on daily wages. The order impugned infers such an harrowing classification.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 0);\"><b style=\"\">16. Before I say omega, I wish to emphasize that men who man such offices become insensitive to the issue of the kind that is alleged in the petition, it would become “power&nbsp; at wrong hands”.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Writ Petition allowed with cost of Rs. 25,000.&nbsp;State shall pay costs to the petitioner and recover the same from the Officer who passed the order.&nbsp;The petitioner shall be reinstated to the post that she held earlier with 50% back wages from the date of cancellation of appointment&nbsp; till&nbsp; the date&nbsp; of reinstatement.</b></span></div></h4>', 'c25e66c470330126b4577251c56152ae.jpg', '8e575a2da928ad3bf6a41b571f3392ce.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-04', 1, '', '', '2021-02-19 21:41:44', '2021-02-22 00:44:42');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(483, 'dMam4Hv5N0swPH98ubyJFe1v9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Doctrine of Lost Grant. Presumption of an origin of some lawful title. A person who is in long and quiet possession with no proof of title can rely on the Doctrine of Lost Grant to prove possessory title. Supreme Court. ', '<h4 style=\"text-align: justify; \"><br></h4><table class=\"table table-bordered\" style=\"text-align: justify;\"><tbody><tr><td><h4 style=\"color: rgb(0, 0, 0);\"><div style=\"text-align: center;\"></div><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\"><b>C. Periaswami Goundar v. Sundaraesa Ayyar</b></span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\"><b>Civil Appeals Nos. 648 to 652 of 1960</b></span><b style=\"font-size: 1.3125rem; font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">, decided on July 31, 1964</b></div><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\"><b>Justice K. Subba Rao and Justice S.M. Sikri&nbsp;</b></span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\"><b>Reported in (AIR) 1965 SC 516&nbsp;</b></span></div></h4></td></tr></tbody></table><h4 style=\"text-align: justify; \"><b style=\"font-size: calc(1.275rem + 0.3vw); font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><span style=\"font-size: 1.3125rem;\">These five appeals by certificate arise out of Original Suits Nos. 183, 184 and 185 of 1945 filed in the Court of the Subordinate Judge, Coimbatore, Madras State.</span></b><br></h4><h4><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>2. OS No. 183 of 1945 relates to properties claimed on behalf of Sri Chowleswaraswami temple. Periaswami Goundar and Samana Goundar, the plaintiff’s in the said suit, are the trustees of the said temple. They filed the suit for the recovery of the plaint-scheduled properties from the defendants who are the archakas and the alienees from them on the ground that the said properties were the properties of the deity and that the defendants had no right therein. They also claimed mesne profits for a period of 3 years prior to the suit. The defendants filed a written-statement admitting the claim of the deity to the melvaram interest in the properties but claimed that the archakas owned the kudivaram therein and that some of the said properties were validly transferred to the alienees.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>3. OS No. 184 of 1945 was filed in the said Court by the trustees of Sri Pongali Amman temple situated in the village of Vengambur for the recovery of the properties mentioned in the schedule attached to the plaint. The defendants, who are the archakas and alienees from them, inter alia, pleaded that only melvaram in the said properties was granted to the deity and that the archakas owned the kudivaram therein and that they had validity alienated their interest in the said properties in favour of the alienees.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>4. OS No. 85 of 1945 was filed in the same Court by the trustees of Sri Varadaraja Perumal temple situated in Vengambur village. The plaintiffs sought to recover the properties mentioned in the schedule annexed to the plaint from the archakas and the alienees from them on the same grounds and the defendants raised similar pleas. It is not necessary to mention other defences raised in the written statements filed in the three suits as nothing turns upon them in these appeals.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>5. The main issue in OS No. 183 of 1945, OS No. 184 of 1945 and OS No. 185 of 1945 was whether the Inam grants made to the three temples consisted of both the varams or melvaram alone.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>6. The learned Subordinate Judge tried the said suits along with two other suits and delivered a common judgment wherein. On the said issue he held in all the three suits that the grants to the three deities comprised both the varams. He further held that the alienations made by the archakas prior to May 16, 1931, were binding on the trustees of the respective temples and that the alienations made subsequent to that date were liable to be set aside. In the result the learned Subordinate Judge gave a decree in each of the suits for possession of the plaint-schedule properties except those covered by the alienations affected before May 16, 1931. He also decreed mesne profit’s to the plaintiffs for a period of 3 years prior to the suits and also subsequent profits from the date of the suits to the date of delivery of possession at the rate fixed by him. The defendants in the said suits preferred appeals to the High Court of Madras, being Appeals No. 259, 260 and 385 of 1947. The said appeals were heard by a Division Bench of the said High Court, consisting of Satyanarayana Rao and Rajagopalan, JJ. The High Court agreed with the trial court on the finding relating to the nature of the grants to the temples, that is to say it held that the grants to the temples comprised both the varams, namely, melvaram and kudivaram. The learned Judges, for the just time, though there was no pleading, no issue, and no contention in the trial court, held that the archakas were entitled to have a portion of the said properties allotted to them towards their remuneration for the services to the temples and gave a decree directing the division of the said properties into two halves and putting the archakas in possession of one half. They did not disturb the finding of the learned Subordinate Judge in regard to the alienations, that is they maintained the alienations made before May 16, 1931.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>7. Against the decree of the High Court in AS No. 259 of 1947 and AS No. 385 of 1947 both the archakas and the trustees preferred appeals to this Court questioning the correctness of the decree of the High Court insofar as it went against them. Against the decree in AS No. 260 of 1957 no appeal was filed by the arckakas, but the trustees preferred an appeal questioning that part of the decree directing a part of the properties to be put in possession of the arckakas.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>8. Mr Desai and Mr Tatachari, appearing for the archakas in the different appeals, contended that the courts below, having regard to the consistent and continuous conduct of enjoyment as absolute owners of the properties by the archakas spread over a long period of time, should have invoked the doctrine of lost grant particularly when there was no clear and convincing evidence of the terms of the grant. Alternatively, they argued that the courts should have held, on a fair construction of the recitals found in the inam statements and the inam register, that only melvaram was granted to the deity.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>9. Mr Viswanatha Sastri, learned counsel for the trustees, contested this position. He would say that there is no scope for invoking the doctrine of lost grant as the recitals in the inam register and the inam statement, which are of great evidentiary value, conclusively establish that both the varams were granted to the deity and that all the documents, or most of them, disclosing the conduct of the archakas would support the conclusion that both the varams were so granted to the deity.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; color: rgb(156, 0, 0);\"><b>10. At the outset it would be convenient to notice briefly the scope of the doctrine of lost grant, as the learned counsel for the appellants have strongly relied upon it. The doctrine of lost grant with its limitations has been succinctly explained by the Judicial Committee in Sankaranarayana Pillayan v. H.R.E. Board, Madras1. The temple in that case had 4 kattalais. Though the temple had a general trustee, each of the kattalais was in the charge of a special trustee or trustees. In regard to one of the kattalais after meeting all the expenses there remained a surplus which the trustees claimed for their own benefit and in fact they were utilising the surplus for the benefit of their families. It was contended by the appellants that they were the owners of the suit properties, which were subject only to a charge in favour of the kattalai for the performance of the worship according to the prescribed scale. The Judicial Committee, after noticing the earlier decisions, observed:</b></span></div><div style=\"text-align: justify; margin-left: 25px;\"><span style=\"font-size: 1.3125rem; color: rgb(156, 0, 0);\"><b>“The presumption, it was stated, of an origin in some lawful title which the Courts have so often readily made in order to support possessory rights long and quietly enjoyed, arises where no actual proof of the title is forthcoming, and the rule has to be resorted to because of the failure of actual evidence. In the present case, where there is ample and convincing proof the nature of the grant, the object of the endowment and the capacity of the persons claiming the user and enjoyment, the rule can hardly have any application”.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; color: rgb(156, 0, 0);\"><b>In the result the Judicial Committee held that the properties were granted only to the deity and that the trustees had no claim to any surplus income. The said principle has been accepted by this Court in Buddu Satyanarayana v. Konduru Venkatapayya2. There a question similar to that now raised was considered. The archakas claimed, relying upon the doctrine of lost grant, that under the original inam grant only the melvaram interest was given to the deity. Rejecting that contention, Das, J., speaking for the Court, observed:</b></span></div><div style=\"text-align: justify; margin-left: 25px;\"><span style=\"font-size: 1.3125rem; color: rgb(156, 0, 0);\"><b>“There is no doubt, on the authorities, that a presumption of an origin in some lawful title may in certain circumstances be made to support possessory rights long and quietly enjoyed where no actual proof of title is forthcoming but it is equally well established that presumption cannot be made where there is sufficient evidence and convincing proof of the nature of the grant and the persons to whom it was made.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; color: rgb(156, 0, 0);\"><b>The basis of this doctrine is clearly brought out by two judgments of the Judicial Committee. Lord Buckmaster, delivering the judgment in Maginiram Sitaram v. Kasturbhai Manibhai3 observed:</b></span></div><div style=\"text-align: justify; margin-left: 25px;\"><span style=\"font-size: 1.3125rem; color: rgb(156, 0, 0);\"><b>“At the lapse of 100 years, when every party to the original transaction has passed away, and it becomes completely impossible to ascertain what were the circumstances which caused the original grant to be made, it is only following the policy which the courts always adopt, of securing as far as possible quiet possession to people who are in apparent lawful holding of an estate, to assume that the grant was lawfully and not unlawfully made.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; color: rgb(156, 0, 0);\"><b>Viscount Sumner in Mohamad Muzafar Ali Musavi v. Jabada Khatun4 said much to the same effect thus:</b></span></div><div style=\"text-align: justify; margin-left: 25px;\"><span style=\"font-size: 1.3125rem; color: rgb(156, 0, 0);\"><b>“The presumption of an origin in some lawful title, which the courts have so often readily made in order to support possessory rights, long and quietly enjoyed, where no actual proof of title is forthcoming, is one which is not a mere branch of the law of evidence. It is resorted to because of the failure of actual evidence.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; color: rgb(156, 0, 0);\"><b>It is, therefore, clear that the said principle can only be invoked where there is no acceptable evidence of the terms of the grant.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>11. In these appeals the trustees filed copies of the relevant extracts of the inam register and the statements filed by the ancestors of the archakas during the inam enquiry in support of the contention that both the varams were granted to the deity. The evidentiary value of the recitals in the Inam register has been emphasized by the Judicial Committee in more than one decision. In Arunachalam Chetti v. Venkata Chalapathi Guruswamigal5 the Judicial Committee expressed its view on the evidentiary value of the recitals in inam register thus:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>“It is true that the making of this register was for the ultimate purpose of determining whether or not the lands were tax free. But it must not be forgotten that the preparation of this register was great act of State and its preparation and contents were the subject of much consideration under elaborately detailed reports and minutes. It is to be remembered that the inam Commissioners, through their officials, made enquiry on the spot, heard evidence and examined documents, and, with regard to each individual property, the Government was put in possession not only of the conclusion come to as to whether the land was tax free, but of a statement of the history and tenure of the property itself. While Their Lordships do not doubt that such a report would not displace actual and authentic evidence in individual cases, yet the Board when such is not available, cannot fail to attach the utmost importance, as part of the history of the property, to the information set forth in the inam register.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>In the latest decision of the Judicial Committee reported in Sankaranarayana Pillayancase1 reiterated the same position when it said:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>“The question arose in a recent case before this Board with reference a Madras Inam (see Secretary of State for India v. Vidhya Thirta Swamigal6 where it was held that the title deeds and the entries in the inam register are evidence of the true intent and effect of the transaction and of the character of the right which was being recognized and continued. The entries in the inam register and the description of the inamdar therein were accepted as indications of the nature and quantum of the right and the interest created in the land.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>This view of the Judicial Committee has been accepted and applied by the Madras High Court in many dicisions when it was called upon to decide on the conflicting claims of a trustee and an archaka to the properties dealt with in the inam registers.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>12. The documents relating to Sri Pongali Amman temple are Exs. P-2 and P-3. Ex. P-2 is the statement filed by an ancestor of the present archakas before the inam Commissioner. It is of the year 1862. Ex. P-3 is an extract of the inam register. As observed by the Judicial Committee, the entries made in the said register are the result of an elaborate enquiry based upon oral evidence, on the spot enquiry and scrutiny of available accounts and records. The Inam statement is only one of the pieces of evidence which the Inam Commissioner might have taken into consideration in compiling the Inam register. The recitals in the statement must, therefore, give place to the recitals in the Inam register, though an attempt shall be made to harmonize them, if possible. Before considering the recitals in Ex. P-3 it is necessary to bear in mind the common case i.e. that it is the case of both the archakas and the trustees Ex. P-3 deals only with the property that was given to the deity. But the dispute is as regards the extent of the interest in the property that was given to the deity. Was it only the melvaram in the said property that was granted to the deity or was it that both the varams therein were granted to the deity. Now let us give a close look to the recitals under the various columns in Ex. P-3. The first major head is “class, extent and value of inam”. The said major head is divided into 7 sub-heads. In column 2 under the sub-head “General class to which Inam belongs”, the entry is “religious”. In Column 3 under the head “the survey number and the name of the field or fields comprised in the grant-dry, wet or garden”, the particulars of the lands are given. This entry shows that except a small extent which is a garden the rest is dry land. These details are more consistent with the grant being of both the varams than being of mere melvaram. It is of melvaram alone, the quality of the field is quite irrelevant. Sub-head 4, 5 and 6 show that the extent is about 18 acres and 99 cents and the assessment is Rs 24/1415. These recitals leave the impression that the land was a dry land bearing a small assessment of Rs 24/14/5 and the income therefrom could not have been appreciable in those days. The second main held is “description, tenure and documents in support of the inam”. The entries under the various columns under this head establish that the dry lands bearing an assessment of Rs 24/14/5 described in cols. 3, 4, 5 and 6 were granted as Devedayam to the deity Pogali Amman permanently by Maduraiyar Paligar of Madura. The date of the grant is not known; but even in the accounts of 1209 F, the name of the deity was entered as the grantee. The third major head is “name and relationship of original grantee and of subsequent and present heirs—length of possession”. In Columns. 13 and 15 the name of the deity alone is given. In Column 1G under the heading “name and age” and in Column 17 under the heading “place of residence” only the name of the deity is given. Below the name of the deity the name of the Pujari “Pujari Muttandi, age 45” is given. In Cols. 18 and 19 under the heading “relation to original grantee or subsequent registered holders” and “surviving heirs of the present incumbent” no entry is made. Obviously no entries are made under these sub-heads, as the deity cannot have relations. The mention of Pujari Muttandi in the context of other entries indicates that he was in charge of the temple. If his name was mentioned because he had some interest in the land, the other suitable entries in regard to his relations would have been made under the relevant sub-heads. Indeed it is not the case of the archakas that they have some interest in the melvaram. If the document was concerned only with the melvaram interest, strictly there was no place for the archaka in the document, for he had no interest therein. His name was mentioned only as he was the person who was in de facto management of the properties of the deity. In Column 21 under the heading Deputy Collector’s opinion and recommendation”, the entry is “To be confirmed permanently to the Pagoda so long as it is well kept up, subject to the existing jodi of Rs 3-1-7”. Under Column 22 the Inam is confirmed to the pagoda. A reasonable interpretation of the recitals in this document leads to the only conclusion that the Inam Commissioner was dealing in the entire interest in the land, the particulars whereof were given therein. There is no evidence that at the time the grant was made the archakas or any others were kudivaramdars. But it is said that Ex. P-2, the Inam statement, filed by the the then archakas would establish that what was granted was only the melvaram. There, in column 2 under the head “Name of the inamdar entered in dowle and name of the present enjoyer” the following entry is found:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Pongaliamman possari Kuppaiyandi Muthuveeran as per paimash entry. For Fields Nos. 595 and 597 no poosari’s name is mentioned. Present (enjoyer) Pongaliamman poosari Muthandi.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>It is said that pujari is shown as the enjoyer and, therefore the deity has no interest in the enjoyment of the land. The deity was obviously represented by the pujari who was the de facto trustee. He was in possession of the property in this capacity as the de facto trustee. In those circumstances if the pujari of the temple is described as an enjoyer, it can only mean that he was in possession of the land on behalf of the temple. Whatever ambiguity there might be in the said recital it is dispelled by the entry is Column 12 under the head “Particulars of present enjoyment”, namely “By directly cultivating this land selling the produce derived therefrom and applying the sale proceed to the service of the deity; I and my agnates have been performing pooja and enjoying the said and according to the conditions of the grant”. This entry is couched in clear and unambiguous terms. It describes the nature of the enjoyment of the land by the arckaha; it clearly says that he was cultivating the land, selling the produce and from the sale proceeds he was doing the services to the deity in accordance with the terms of the grant. If the deity was entitled only to the melvaram, this recital is inconsistent with it. The recital indicates that the entire land was subject-matter of the grant in favour of the deity and that the produce from that land was utilized for the services to the deity. Strong reliance is placed upon the entry in Column 13 under the head “Income derived from the manibam; whether sarvadambla or jodigai, if jodigai, how much”. The entry is, “Income Rs 24-14-5; Jodigai Rs 3-1-7”. Basing upon the said entries the argument is that Ex P-3, shows that the assessment on the land was Rs 24-14-5 and Ex. P-2 indicates that the same amount was the income derived from the Inam and, therefore, what was granted in Inam could have been only the assessment i.e. Rs 24-14-5. This argument is farfetched and based on a slender foundation. One of the main objects of the Inam enquiry was to ascertain whether the alienated lands were free of tax or not. The archaka who was in possession of the land on behalf of the deity had to give information as regards the tax payable in respect of the land in his possession. In that context the expression “Income derived from the manibam” can only mean the assessment fixed on the land. After stating that full assessment was only Rs 24-14-5 the archaka stated that he was not paying the entire amount, but was paying only the jodigai of Rs 3-1-7. So understood the said recitals fit into the scheme of other recitals in the said statement and those found in Ex. P. 3. A similar argument was advanced before this Court in Buddu Satyanarayana case2 and was rejected. Das, J., observed at p. 1006 thus:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>“Apart from these points of distinction the decision relied on by the learned Attorney-General appears to us to be of doubtful authority. As will appear from the passages quoted above, the decision rested mainly, if not entirely, on the fact that the amount of assessment and the amount of income were the same and the conclusion was drawn that the Inam grant comprised only the revenue assessment i.e. of melvaram rights. We are unable to follow the reasoning.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>We, therefore, hold that, from the recitals in the said two documents, what was granted to the deity was of both the varams.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Learned counsel for the archakas relied upon the long possession and enjoyment of the suit lands by the archakas and their ancestors in support of their contention that the melvaram alone could have been granted to the deity. Long enjoyment is also consistent with an arrangement that might have been entered into between the grantor and the then functioning archaka or archakas having regard to the conditions prevailing then. The lands granted were comparatively of small extent and they were dry lands. In those days the income from the said lands must have been very insignificant. There was no trustee for the temple; In those circumstances it is more likely that the grantor would have put the land in the possession of the archaka so that he might, from and out of the produce from the land, maintain the temple, perform the puja and meet the expenditure connected with the puja and also pay himself the remuneration for his services to the temple. That was a convenient arrangement which was adopted in many of the small temples in that part of the country. This practice was recorded with clarity by the Madras High Court in Narayanamurthi v. Achaya Sastrulu7. In dealing with a similar argument the learned Judge observed:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>“The evidence of user and enjoyment, however long, uninterrupted and unquestioned, would be evidence of the grant only in the absence of any reliable or cogent evidence with regard to the terms of the grant itself or in the case of any ambiguity in the grant. It seems to be clear that almost very recently the suit lands yielded only just what was sufficient for nitya naivedyam or the daily worship. No doubt in such a state of things not only the persons who established the temples and made the endowments but succeeding generations of worshippers would have allowed the archaka to cultivate the lands and take the income performing the puja as it was obviously the most convenient mode of arranging for the worship of the deities and the payment of remuneration for the archaka service.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>&nbsp;“But when the income accruing from the lands came to be considerable and the archakas, by reason of old habits and following their forefathers, claimed that lands and surplus profits therefrom to be their own. It was only natural that the worshippers should take steps to secure the surplus income for the institutions.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>These observations are very apposite and they clearly describe the circumstances under which the archakas of the temples were allowed to be in possession of the temple lands. If that was the situation under which the archakas came into possession of the lands, they were certainly in the position of de facto trustees and they could not by mortgaging or otherwise alienating the properties claim any rights in derogation of the title of the deity. Indeed the documents on which the learned counsel relied contain clear and unambiguous admission on the part of the archakas that the land itself was the property of the deity. Exs. P-12, P-13, P-14 and P-15 are copies of mortgages executed by the arckakas. Under these documents the land in their possession was mortgaged and it was described as paditharam manyam. They also disclosed that the paditharam paddy directed to be paid to the temple was more than the kist payable thereon to the Government. In the prior proceedings i.e. applications preferred by the archakas for declaring the temples as excepted ones, there was no claim that the melvaram alone was granted to the deity. In other proceedings the archakas claimed that the lands were service inams, but they did not come forward with the present plea that melvaram only was granted to the deity. Further, pattas for the suit lands were transferred without any objection of the archakas in the name of the deities in 1939 and the archakas also paid contribution to the Madras Hindu Religious Endowments Board on the basis that both the varams belonged to the deity. The conduct of the archakas, therefore, is consistent with the recitals in the Inam register, namely, that what was granted to the deity was the land i.e. both the varams, and that they had been put in possession and enjoyment of the said land in their capacity as archakas and de facto trustees.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>13. Learned counsel for the appellants relied upon an order made by A.R.C. Westlake, Collector of Coimbatore, on April 14, 1941, wherein he held that only melvaram was granted to the deity. That order came to be made under the following circumstances. The trustees appointed by the Coimbatore District Temple Committee filed an application before the Revenue Division Officer under Section 44-B-11(a) of the Madras Hindu Religious Endowments (Amendment) Act, 1934, for a declaration that the alienations of portions of Inam land attached to the temple were null and void and for resumption and regrant of the same to the deity. One of the issues in the application was whether the Inam comprised melvaram or both melvaram and Kudivaram. The Revenue Division Officer held that the Inam comprised both the varams. On appeal, the Collector came to the contrary conclusion. But a perusal of the order shows that his conclusion was based upon pure surmises. The Collector did not refer to any document or evidence for his conclusion. The trustees filed a suit in the court of the Subordinate Judge, Coimbatore, for a declaration that the inam grant in favour of the plaint temple comprised both the varams. The learned Subordinate Judge held that Section 44-B of the Act had no application as the grant was to the deity and was not a service inam. The result of this litigation was that there was no final decision on the question whether the grant was of both the varams are only of the melvaram. These proceedings cannot, therefore, be of any evidentiary value in this case. On a consideration of the entire evidence we agree with the conclusion arrived at by the High Court that the grant to the deity comprised both the varams in the suit lands.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>14. Now coming to the appeals relating to Chowleswaraswami temple, the factual and legal position is exactly the same as in the case of Pongaliamman temple. Ex. P-2 is the statement made before the Inam Commissioner by the then archaka and Ex. P-3 is the extract from the Inam register. Under the relevant entries in the Inam register, survey numbers, extent, quality and the assessment of the subject-matter of the grant are given. The land is described as Devadayam and is stated to have been granted for the support of the pagoda of Chowleswaraswami. The nature of the grant is described as permanent. The date of the grant is not known. The grantor’s name is given as Maduraiyar Paligar of Madura. The name of the original grantee is given as Chowleswaraswami. The grant of the land described earlier is confirmed permanently to the pagoda as long as it is well kept subject to the existing jodi of Rs 24-8-2. The only mention of archaka is in Column 17 under the head “Particulars regarding present owner” and the entry thereunder is “Chowleswaraswami, stanika Muttaiyan”. The other columns where the relationship of the present owner with the previous owners is expected to be recorded are left blank for the obvious reason that the said columns are irrelevant in the case of a deity. The archaka’s name in addition to the deity is mentioned as he was in possession of the land in his capacity as de facto trustee. The deity must necessarily have to be represented by somebody and that he can only be the stanika who was managing the temple and its properties. The relevant entries in the Inam register do not countenance any contention that the melvaram interest only in the land was granted and that was confirmed to the deity. If the melvaram was granted or confirmed, the recitals would have been different. The corresponding Inam statement is Ex. P-2. The entries are practically similar to those found in Ex. P-2 relating to Pongaliamman temple with some light variations. Column 2 makes a clear distinction between ownership of the land and enjoyment. The owner is shown as Chowleswaraswami and the “present” enjoyer is shown as Chowleswaraswami’s stanika. The nature of the enjoyment is described in Column 2 thus:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>“The said lands are leased out for varam cultivation and I cultivate the same myself some times and the income (masul) therefrom is enjoyed by me and co-sharers (Pangali) and used for Swami Viniyogam.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>It is manifest from this recital that the land was the subject-matter of the grant and the income therefrom was derived either by direct cultivation or by leasing out the same, and the said income was enjoyed by the archakas and used for viniyogam. The point to be noted is that the predecessor-in-interest to the present archakas admitted that the produce from the land was utilized for the services of the deity. The said admission is inconsistent with the allegation that the grant was only of melvaram. The entries in Column 13 are similar to those contained in the corresponding Ex. P-2 relating to Pongaliamman temple, and for the reason already given, they do not support the contention that the assessment of Rs 74-1-5 was only granted to the deity.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>15. A combined reading of these two documents leads to the only conclusion that both the varams were granted to the deity. Just as in the case of Pongaliamman temple so in the case of Chowleswaraswami temple, the subsequent conduct of the archakas belie their assertion that only melvaram interest in the land was granted to the deity. Ex. D-1 of 1867, D-2 of 1868, D-3 of 1870 and D-4 of 1883 are some of the mortgages executed by the archakas of Chowleswaraswami temple. Exs. D-5, D-6 and D-7 are sales. In all these documents the property is described as Chowleswaraswami manyam. If really the kudivaram belonged to the archakas, they would not have described the land they were alienating as Chowleswaraswani manyam. The description of the property as that of the deity is consistent with the title of kundivaram also being in the deity. Further, as in the other case, the pattas were transferred in the name of the deity in 1939, the contributions were paid to the Hindu Religious Endowments Board on the basis that the entire interest in the lands belonged to the deity and that in other proceedings the archaka’s case was not that the grant to the deity was only of the melvaram but the lands were service Inam lands. Though the archakas dealt with the properties by mortgaging or otherwise alienating them they never denied the title of the deity. For the foregoing reason we hold that even in the case of Chowleswaraswami temple the original grant made to the deity comprised both the varams.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>16. In regard to Sri Varadaraja Perumal temple, no appeal was filed by the archakas and they allowed the judgment of the High Court in regard to the title to become final. Nothing, therefore, need be said on the question of title of the land in respect of this temple.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>17. Coming to the cross-appeals filed by the trustees against that part of the decree of the High Court apportioning the property of the deity between the deity and the archakas, the question raised is whether the High Court, having held that the title to the suit property vested in the deity, had jurisdiction to compel the trustees of the temples to put the archakas in possession of specified extent of property towards their remuneration. The High Court observed thus:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>“On these findings, it it no doubt true that the decree in favour of the plaintiffs for possession of the properties on behalf of the deity has to be upheld subject to the consideration set forth below.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Then it proceeded to consider whether any allocation of land should be made between the archakas and the trustees. After noticing the relevant decisions on the subject, it observed thus:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>“These decisions are practically uniform except for the decisions… (in) AS No. 237 of 19508 and …. (in) Venkatadri v. Seshcharlu9 and have upheld the allocation of lands between the archakas and the trustees, the proportion, however, varying with the extent of the lands and the amount of the income. None of the Judges were of the opinion that the arrangement should be a permanent and an unalterable one and it must naturally be subject to revision or alteration according to the circumstances of the case at the instance not only of the trustees but also at the instance of the archakas, if it was found that the allocation was working to the detriment of either the archakas or of the temple”.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>It concluded:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>“We think, therefore, in these cases, the beat arrangement would be to allocate half the lands in each of the suits for the remuneration of the archakas, to be divided equally, having regard to the wet and dry extents, and leave the remaining half to the trustees, who have to meet the cost of the daily worship and accumulate the surplus in their hands as it belongs to the deity.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>On principle, in our view, the conclusion arrived at by the learned Judges of the High Court is unsupportable. The suits were based on title and the relief asked for was the eviction of the archakas from the suit property as the according to the plaintiffs, had no title to remain in possession. The archakas raised the plea that the title of the deity was confined only to melvaram in the plaint-schedule lands and that they had title to the kudivaram. Both the courts confirmed the title of the deity to both the interests and negatived the title of the defendant archakas. In the circumstances the court has no option but to deliver possession to the plaintiffs who had established their title to the suit properties. In a suit for framing a scheme for a temple a court may in an appreciate case put the archaka in possession of a portion of the temple lands towards his remuneration for services to the temple; but these are not suits for framing a scheme. That apart, there is absolutely no material either in the pleadings or in the evidence to make any such apportionment, for the allotment of a particular share to the archaka would depend upon the total income from the lands, the value of the articles required for the worship, the amount of reasonable remuneration intended to be provided and other similar circumstances. An allotment cannot possibly be made on the basis of allocations made in the circumstances and facts peculiar to other cases. Indeed, this Court has already expressed a clear opinion on this aspect of the case in Buddu Suryanarayana case2. Therein, Das, J., said at p. 1008 thus:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>&nbsp;“In a proceeding for the framing of a scheme relating to a temple it may be permissible to take into account the claims, moral if not legal, of the archakas and to make some provision for protecting their rights, but those considerations appear to us to be entirely out of place in a suit for ejectment on proof of title.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>With respect we entirely agree with the said observations. It follows the High Court went wrong in making an allocation of the lands between the trustees and the archakas in a suit for ejectment.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>18. Learned counsel for the archakas made an impassioned appeal that we should give a direction to the authorities concerned to make an apportionment of the properties on the lines suggested by the High Court, having regard to the long enjoyment of the temple lands by the archakas. Long enjoyment of the temple lands by the archakas is not a peculiar feature of this case. The authorities concerned have made suitable arrangements for remuneration in the case of other temples and we have no doubt that they would make a reasonable provision for the archakas in the present case also for their remuneration in accordance with law.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>19. In the result Civil Appeals Nos. 648 and 650 of 1960 filed by the trustees, are allowed but, in the circumstances, without costs. Civil Appeal No. 649 of 1960 filed by the trustees is also allowed without costs except as against the 14th respondent. The said appeal against the 14th respondent is withdrawn on the ground that his interest as a mortgagee is not now subsisting and the said appeal against the 14th respondent is dismissed as withdrawn but, in the circumstances, without costs. Civil Appeals Nos. 651 and 652 of 1960 filed by the archakas are dismissed with costs. One hearing fee.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>———</b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">*</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">Appeals from the Judgment and Decree dated 28th November, 1952 of the Madras High Court in Appeals Nos. 385, 259, 260, 259 and 385 of 1947 respectively.</span></b></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">1</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">ILR 1948 Mad 585, 605-606</span></b></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">2</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">(1953) SCR 1001, 1003</span></b></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">3</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">(1921) LR 49 IA 54</span></b></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">4</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">(1930) LR 57 IA 125</span></b></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">5</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">(1920) ILR 43 Mad 253</span></b></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">6</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">ILR 1942 Mad, 893, 908 (PC)</span></b></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">7</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">(1924) 47 MLJ 714 at 716</span></b></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">8</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">Brahmayya v. Rajeswaraswami Temple, AIR 1953 Mad 580</span></b></div><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">9</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">ILR 1948 Mad 46</span></b></div></h4><p style=\"text-align: justify;\"><br></p><h4 style=\"text-align: justify;\"><b>On this issue, also see subsequent judgments of the Supreme Court.&nbsp;</b></h4><h4 style=\"text-align: justify;\"><b>1. Braja Kishore Jagdev v. Lingraj Samantaray, (2000) 6 SCC 540<br>2. Konda Lakshmana Bapuji v. Govt. of A.P., (2002) 3 SCC 258&nbsp;<br>3. Tulsi Ram v. Mathurasagar Pan Tatha Krishi, (2003) 1 SCC 478.<br>4. Ramchandra Wahiwatdar v. Narayan, (2003) 10 SCC 685.<br>5. M. Siddiq v. Suresh Das, (2020) 1 SCC 1&nbsp; (Ram Janmabhumi Temple)</b></h4><p style=\"text-align: justify;\"><br></p>', '2a9c4381fbbbda2ebfeb8539dd186e8d.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-03', 1, '', '', '2021-02-19 17:33:09', '2023-02-03 10:53:35');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(485, 'AJwJaoJfpReQUwsRz87r3yKdN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Banking. Unauthorized break open of locker by bank. Banks cannot wash off their hands and avoid liability towards customers. Keeping open the applicability of law of bailment Supreme Court issues guidelines regarding bank lockers. ', '<h4 style=\"text-align: justify; \"><b><br></b></h4><table class=\"table table-bordered\" style=\"text-align: justify;\"><tbody><tr><td><h4 style=\"text-align: center; color: rgb(0, 0, 0);\"><b>Amitabha Dasgupta vs United Bank of India & Ors. </b></h4><h4 style=\"text-align: center; color: rgb(0, 0, 0);\"><b>Civil Appeal 3966 of 2010, decided on 19 February 2021. </b></h4><h4 style=\"text-align: center; color: rgb(0, 0, 0);\"><b>Justice Mohan M Shantanagoudar and Justice Vineet Saran </b></h4><h4 style=\"text-align: center; color: rgb(0, 0, 0);\"><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2009/22857/22857_2009_39_1501_26314_Judgement_19-Feb-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2009/22857/22857_2009_39_1501_26314_Judgement_19-Feb-2021.pdf</a> </b></h4></td></tr></tbody></table><h4 style=\"text-align: justify; \"><font color=\"#9c0000\"><b><br>Relevant paragraphs:</b></font><b><span style=\"color: rgb(156, 0, 0);\"> </span>4. Heard Learned Counsel for both parties. Based on a perusal ofthe record, the following issues arise for consideration in thepresent appeal:</b></h4><h4 style=\"text-align: justify; \"><b>4.1 First, Whether the Bank owes a duty of care tothe locker holder under the laws of bailment or anyother   law   with   respect   to the contents of the locker?  Whether   the   same   can   be   effectively adjudicated   in   the   course   of   consumer  dispute proceedings?</b></h4><h4 style=\"text-align: justify; \"><b>4.2  Second,  irrespective   of   the   answer   to   the previous   issue,   whether   the   Bank   owes   an independent   duty   of   care  to its customers with respect to diligent management and operation of the   locker,  separate from  its  contents?  Whether compensation can be awarded for non­compliance with such duty?</b></h4><h4 style=\"text-align: justify; \"><b>5.1 The dominant view of courts around the globe has been that the bank is in the position of a bailee with respect to the goods placed   inside   the   locker   by   the   locker   holder.  In  Roberts   v. Stuyvesant   Safe   Deposit   Co., (1890) 123 N.Y 57 the  defendant company permitted the police under a search warrant, to confiscate the articles   that   were   inside the plaintiff’s  locker.   However,   the articles were subsequently stolen from police custody. A suit was filed by the plaintiff, alleging that the defendant company failed to comply   with   the   duty   of   care   required   under   the   law   by permitting   the  police   to   take away   articles   that   were   not mentioned   in   the   search   warrant.  Affirming   the   plaintiff’s contentions, the Court of Appeals of New York made the following observations   about   the   relationship   of   bailment   between   the parties:</b></h4><h4 style=\"text-align: justify; margin-left: 25px;\"><b>“The legal relationship which the defendant held to the plaintiff, and out of which this controversy has arisen, was that of a bailee or depositary for hire. The fundamental   question   in   the   case   is   whether   the defendant,   upon   the   undisputed   evidence   in the record, discharged those duties and obligations to the plaintiff which the law imposed upon it in regard to the care and custody of her property.”</b></h4><h4 style=\"text-align: justify; \"><b>It is pertinent to note the Court’s observation that whether or not the defendant had discharged its obligations as a bailee would have to be discerned from the undisputed evidence on the record. </b></h4><h4 style=\"text-align: justify; \"><b>5.2 The position of law stated in Stuvyesant Safe Deposit Co.(supra) has been reiterated in subsequent precedents which have governed the law on the field such as  Emma  M.  Lockwood  v. The  Manhattan  Storage  &  Warehouse  Company 50 N.Y.S 974 (N.Y. 1898),Mayer  v. Brensigner 54 N.E 159 (1899), National Safe Deposit Co. v. Stead. 95 N.E. 973 (1911), In Cussen v. Southern Cal 65 P. 1099 (1901), Savings Bank  money kept by the plaintiff in the bank’s safe deposit vault was lost. The Supreme Court of California  held  that   the   bank   was   liable   under   the   laws   of bailment. However, it observed that the plaintiff would have tomake a prima facie case that they had deposited the money inside the locker, and that it was subsequently lost. The burden of proof would then shift to the defendant bank to prove that it exercised the necessary care required under the laws of bailment for the protection of its contents. Therefore, before applying the laws of bailment,   the   court   must   first   find   on   the   facts   of   the   case whether the plaintiff had transferred possession of the articles tothe bank.</b></h4><h4 style=\"text-align: justify; \"><b>6. To identify if the relationship of bailment exists between thebank and the locker holder under Indian law, it is necessary at the outset to refer to the relevant provisions under the Indian Contract Act, 1872. (Section 148 & 149 referred to). Thus, from the aforementioned provisions, it can be inferred that three components need to be fulfilled for the existence of bailment. These are: (i) delivery of goods from one person to another by transfer of possession, actual or constructive; (ii) an express or implied contract for delivery; (iii) delivery should be for accomplishment of a purpose. </b></h4><h4 style=\"text-align: justify; \"><b>7. Unfortunately, there is no substantive domestic legislation or sector­ specific regulations which may throw light upon the issue of whether   banks   are   responsible   under   the   laws   of bailment for the loss of articles placed inside the locker. On 4.12.2006, the Reserve Bank of India (‘RBI’) had issued a Draft Circular on Safe­Deposit Lockers (‘2006 Circular’). This circular was only in the form of a proposal issued to the banks and hence does   not   have   any   binding   value.   On perusal of the 2006 Circular, it is evident that  at that point in time, the RBI had recommended that the laws of bailment ought to guide the relationship between the bank and the locker holder, even if the bank has no knowledge of the contents of the locker</b></h4><h4 style=\"text-align: justify; \"><b>8. There has also not been any authoritative pronouncement from this Court on the issue of whether banks are responsible as bailees, or in any other capacity, for any loss or damage to the contents of the lockers. However, there have been various High Court judgments guiding the field. One of the notable cases in which this issue arose was Jagdish Chandra Trikha v. Punjab National   Bank AIR 1998 Delhi 266.</b></h4><h4 style=\"text-align: justify; \"><b>8.1....The   question   that   therefore   arises   for   consideration before this Court is whether the modern­day bank locker system would be guided by the laws of bailment.</b></h4><h4 style=\"text-align: justify; \"><b>8.2 An important decision which has considered the modern­ day bank locker system is that in Natioal  Bank of Lahore Ltd. v. Sohan Lal Saigal AIR 1962 P H 534.</b></h4><h4 style=\"text-align: justify; \"><b>8.3 In  Mohinder   Singh   Nanda   v.   Bank   of   Maharashtra, forty­ four   safe   keeping  lockers   in   the   Respondent   bank   were broken open by miscreants and the contents were emptied. The Punjab & Haryana High Court held that the bank would not be liable  for  the  loss  of  articles,  if  any, since  the  bank   had  no knowledge of the contents of the locker:</b></h4><h4 style=\"text-align: justify; \"><b>8.6 Having perused the aforementioned precedents, we find that what   was   commonly  contested in all   these   cases is whether delivery of possession or entrustment of valuables from the locker holder to the bank had taken place, for the purpose of Section 148 of the Contract Act. </b></h4><h4 style=\"text-align: justify; \"><b>8.10 .....In the present case, the Respondent bank has not disputed their negligence in breaking open the locker in spite of clearance of rental dues by the Appellant. However, the number of items originally deposited by the Appellant inside the locker is a   contested fact. Hence,   we   do   not   propose   to   record   any conclusions   on   whether   the  Appellant   locker   holder   in   the present case is entitled to claim return or recovery of the value of the ornaments alleged to have been deposited by him. We are in agreement with the findings in the impugned judgment to the extent that the Appellant must file a separate suit before the competent civil court for seeking this relief and for proving that the aforesaid items were actually in the custody of the bank.....Hence it is clarified that all questions of fact and law are left open before the civil court to decide on the merits of the case, including as to whether the law of bailment is applicable, or any other law as the case may be. </b></h4><h4 style=\"text-align: justify; \"><b>12. Thus, we emphasize that irrespective of the value of the </b><b style=\"font-size: 1.3125rem;\">articles placed inside the locker, the bank is under a separate obligation to ensure that proper procedures are followed while </b><b style=\"font-size: 1.3125rem;\">allotting and operating the lockers:</b></h4><h4 style=\"text-align: justify; \"><b>(a)  This includes maintenance of a locker register and locker key register. </b></h4><h4 style=\"text-align: justify; \"><b>(b) The locker register shall be consistently updated in case of any change in allotment. </b></h4><h4 style=\"text-align: justify; \"><b>(c)  The   bank  shall   notify  the   original   locker  holder prior to any changes in the allotment of the locker, and give them reasonable opportunity to withdraw the articles deposited by them if they so wish.</b></h4><h4 style=\"text-align: justify; \"><b>(d)   Banks   may   consider   utilizing   appropriate technologies, such as blockchain technology which is meant for creating digital ledger for this purpose.</b></h4><h4 style=\"text-align: justify; \"><b>(e)   The   custodian   of   the   bank   shall   additionally maintain a record of access to the lockers, containing details of all the parties who have accessed the lockers and the date and time on which they were opened and closed. </b></h4><h4 style=\"text-align: justify; \"><b>(f) The bank employees are also obligated to check whether the lockers are properly closed on a regular basis. If the same is not done, the locker must be immediately   closed   and   the   locker   holder   shall   be promptly   intimated   so   that   they   may  verify any resulting discrepancy in the contents of the locker. </b></h4><h4 style=\"text-align: justify; \"><b>(g)   The concerned staff shall also check that the keys to the locker are in proper condition. </b></h4><h4 style=\"text-align: justify; \"><b>(h) In case the lockers are being operated through an electronic   system,   the   bank   shall   take   reasonable steps to ensure that the system is protected against hacking or any breach of security.</b></h4><h4 style=\"text-align: justify; \"><b>(i)   The   customers’   personal   data,   including   their biometric data, cannot be shared with third parties without their consent. The relevant rules under the Information Technology Act, 2000 will be applicable in this regard.</b></h4><h4 style=\"text-align: justify; \"><b>(j)  The bank has the power to break open the locker only in accordance with the relevant laws and RBI regulations, if any. Breaking open of the locker in a manner other than that prescribed under law is an illegal act which amounts to gross deficiency of service on the part of the bank as a service provider. </b></h4><h4 style=\"text-align: justify; \"><b>(k)  Due notice in writing shall be given to the locker holder at a reasonable time prior to the breaking open of the locker. Moreover, the locker shall be broken open only in the presence of authorized officials and an independent witness after giving due notice to the locker   holder. The   bank   must   prepare   a   detailed inventory of any articles found inside the locker, afterthe locker is opened, and make a separate entry in the locker  register,  before  returning them  to   the  locker holder.   The   locker   holder’s   signature should be obtained upon the receipt of such inventory so as to avoid any dispute in the future. </b></h4><h4 style=\"text-align: justify; \"><b>(l)   The   bank   must   undertake   proper   verification procedures to ensure that no unauthorized party gains access   to   the  locker.   In   case   the   locker   remains inoperative for a long period of time, and the locker holder cannot be located, the banks shall transfer the contents of the locker to their nominees/legal heirs or dispose of the articles in a transparent manner, in accordance with the directions issued by the RBI in this regard.(m)   The   banks   shall   also   take   necessary   steps   to ensure that the space in which the locker facility is located is adequately guarded at all times.</b></h4><h4 style=\"text-align: justify; \"><b>(n)   A copy of the locker hiring agreement, containing the relevant terms and conditions, shall be given to the customer at the time of allotment of the locker so that they are intimated of their rights and responsibilities.</b></h4><h4 style=\"text-align: justify; \"><b>(o)   The bank cannot contract out of the minimum standard of care with respect to maintaining the safety of the lockers as outlined supra</b></h4><h4 style=\"text-align: justify; \"><b>14. Thus, looking to the facts and circumstances of the case, we deem it appropriate to impose costs of Rs. 5,00,000/­ on the Bank which should be paid to the Appellant as compensation. The amount of Rs. 5,00,000/­ shall be deducted from the salary of the erring officers, if they are still in service.   If the erring officers have already retired, the amount of costs should be paid by   the   Bank.   Additionally,   the   Appellant   shall   be   paid   Rs. 1,00,000/­ as litigation expense.</b></h4><h4 style=\"text-align: justify; \"><b>15.  Before concluding, we would like to make a few observations on the importance of the subject matter of the present appeal. With   the   advent   of   globalization,   banking   institutions   have acquired a very significant role in the life of the common man. Both domestic and international economic transactions within the country have increased multiple folds. Given that we are steadily moving towards a cashless economy, people are hesitant to keep their liquid assets at home as was the case earlier. Thus, as is evident from the rising demand for such services, lockers have   become   an   essential   service   provided   by   every   banking institution. Such services may be availed of by citizens as well as by foreign nationals. Moreover, due to rapid gains in technology, we  are   now   transitioning   from   dual   key­operated   lockers   to electronically operated lockers. In the latter system, though the customer   may   have   partial   access   to   the   locker   through passwords or ATM pin, etc., they are unlikely to possess the technological know­how to control the operation of such lockers. On the other hand, there is the possibility that miscreants may manipulate the technologies used in these systems to gain access to the lockers without the customers’ knowledge or consent. Thus the customer is completely at the mercy of the bank, which is the more resourceful party, for the protection of their assets. In such a situation, the banks cannot wash off their hands and claim that they bear no liability towards their customers for the   operation   of  the   locker.   The   very   purpose   for   which   the customer avails of the locker hiring facility is so that they may rest assured that their assets are being properly taken care of. Such actions of the banks would not only violate the relevant provisions   of   the   Consumer   Protection   Act,   but   also   damage investor confidence and harm our reputation as an emerging economy. </b></h4><h4 style=\"text-align: justify; \"><b>15.1 Thus it is necessary that the RBI lays down comprehensive directions mandating the steps to be taken by banks with respect to locker facility/safe deposit facility management. The banks should not have the liberty to impose unilateral and unfair terms on the consumers. In view of the same, we direct the RBI to issue suitable rules or regulations as aforesaid within six months from the   date of   this   judgment.   Until   such   Rules   are   issued,   the principles stated in this judgment, in general and at para 13 in particular, shall   remain  binding   upon   the   banks   which   are providing locker or safe deposit facilities. It is also left open to the RBI to issue suitable rules with respect to the responsibility owed by banks for any loss or damage to the contents of the lockers, sothat the controversy on this issue is clarified as well.</b></h4><h4 style=\"text-align: justify; \"><b>16.  The Appeal is disposed of accordingly. </b></h4><h4 style=\"text-align: justify; \"><b><br></b></h4><h4><b><span lang=\"EN-US\"></span></b></h4><h4 style=\"text-align: justify; \"><br></h4>', '1ee8f0505835c56627c5fccccae60a32.jpg', '38b613b431b3db49b7466f5ee84edb7b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-19', 1, '', '', '2021-02-19 23:30:15', '2021-02-19 23:39:01'),
(486, '7ewpcy1RvhuzYipzKWwvur2ha', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court imposes cost of Rupees Ten Lakhs on a chronic litigant who indulged in forum shopping and abuse of process of Court. ', '<h4><b>India Awake for Transparency vs Union of India and others. Writ Petition 172 of 2021 decided on 12 February 2021. Judgment Link: <a href=\"https://karnatakajudiciary.kar.nic.in/judgements/wp-172-2021.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/wp-172-2021.pdf</a></b><br></h4><h4 style=\"text-align: justify;\"><b style=\"font-size: 1.3125rem;\">Relevant paragraphs: This is third petition in succession filed by \'India Awake for Transparency\' against different authorities to initiate action in the matter of acquisition of shares and amalgamation of Company. In all the cases, Shri. Ganesh, learned Senior Advocate appearing for private respondent has raised a preliminary objection with regard to maintainability of writ&nbsp; petitions. In substance, the preliminary objection is, petitioner has filed a public interest litigation registered as W.P.No.3635/2020 with a prayer inter alia for issuance of a writ of mandamus and to direct respondents No.1 to 10 therein to constitute a multi-disciplinary investigation team to investigate and prosecute Mr.A.H.Premji (respondent No.11 therein) and his associates for the offences alleged to have been committed by them, set out in petitioner\'s representations submitted to respondents No.1 to 6 therein. The Ministry of Corporate Affairs against whom a direction is sought in this writ petition was arrayed as respondent No. 2 in the said PIL. Petitioner has unconditionally withdrawn the PIL. Thereafter, it has filed five separate writ petitions against various statutory authorities. W.P. No. 13838/2020 is against SEBI, W.P. No.12073/2020 is against Enforcement Directorate, W.P. No.11482 of 2020 is against Reserve Bank of India (RBI). All three writ petitions have been dismissed.</b></h4><h4 style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">27. Thus, there remains no doubt that petitioner is&nbsp;</span><span style=\"font-size: 1.3125rem;\">indulging in forum shopping on the very same cause of action. As&nbsp;</span><span style=\"font-size: 1.3125rem;\">held in Udyami</span><span style=\"font-size: 1.3125rem;\">, this amounts to criminal contempt as the core&nbsp;</span><span style=\"font-size: 1.3125rem;\">issue in all these writ petitions is one and the same.</span><br><span style=\"font-size: 1.3125rem;\">28. In the result, this writ petition is not only devoid of&nbsp;</span><span style=\"font-size: 1.3125rem;\">merits, but an absolute abuse of process of law. Though&nbsp;</span><span style=\"font-size: 1.3125rem;\">petitioner was forewarned, he chose to argue this writ petition as&nbsp;</span><span style=\"font-size: 1.3125rem;\">a stand-alone petition wasting the valuable time of this Court to&nbsp;</span><span style=\"font-size: 1.3125rem;\">deal with such frivolous cases. Therefore, imposition of punitive&nbsp;</span><span style=\"font-size: 1.3125rem;\">cost is necessary.</span><br><span style=\"font-size: 1.3125rem;\">29. In view of the above, the preliminary objection raised&nbsp;</span><span style=\"font-size: 1.3125rem;\">by Shri. S. Ganesh and Shri. C.V. Nagesh are sustained and this</span><br><span style=\"font-size: 1.3125rem;\">writ petition is dismissed with cost of Rs.10,00,000/- (Rupees&nbsp;</span><span style=\"font-size: 1.3125rem;\">Ten lakhs) payable by petitioner to the Registrar General, High</span><br><span style=\"font-size: 1.3125rem;\">Court of Karnataka, Bengaluru within four weeks from today.&nbsp;</span><span style=\"font-size: 1.3125rem;\">Registry shall report compliance after expiry of four weeks.</span><br><span style=\"font-size: 1.3125rem;\">&nbsp;</span></b></h4><h4 style=\"text-align: justify; \"><br></h4>', '45697a606c358fe33acea96b24ae7924.jpg', 'ee20f8275e25369e999242d8c32b4882.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-12', 1, '', '', '2021-02-20 17:24:18', '2021-02-20 17:26:10'),
(487, 'dfSigKuBeebMIUNOHs4Yn1mD5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Maneka Gandhi vs Union of India', '<h4><div style=\"text-align: center;\"><div><b>IN THE SUPREME COURT OF INDIA</b></div><div><b>Maneka Gandhi vs Union of India</b></div><div><b>Writ Petition No. 231 of 1977 decided on January 25, 1978</b></div><div><b> </b></div><div><b>Chief Justice M.H.Beg, Justice Y.V.Chandrachud, Justice V.R. Krishna Iyer, Justice P.N. Bhagavati,</b></div><div><b>Justice N.L. Untwalia, Justice S.Murtaza Fazali Ali and Justice P.S. Kailasam.</b></div><div><b> </b></div><div><b>Reported in (1978) 1 SCC 248</b></div><div><b style=\"background-color: rgb(255, 255, 0);\">Please see the enclosed PDF Judgment</b></div></div></h4>', '08d62fe516564c1d45dca5942281476b.PNG', 'ee854aa360806fd2c0e4eb46fc822ad7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1978-01-25', 1, '', '', '2021-02-20 18:32:28', '2021-02-20 18:42:57'),
(488, 'r4kAwYoiaChsnEMugzZYNN4MA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'ADM Jabalpur vs Shivakant Shukla', '<h4 style=\"text-align: center; \"><nr-sentence class=\"nr-s0 nr-selected\" id=\"nr-s0\" page=\"0\"><b>IN THE SUPREME COURT OF INDIA</b></nr-sentence></h4><h4 style=\"text-align: center; \"><nr-sentence class=\"nr-s1 nr-selected\" id=\"nr-s1\" page=\"0\"><b>ADM, Jabalpur vs Shivakant Shukla</b></nr-sentence></h4><h4 style=\"text-align: center; \"><nr-sentence class=\"nr-s2 nr-selected\" id=\"nr-s2\" page=\"0\"><b>Criminal Appeal 279 of 1975</b></nr-sentence></h4><h4 style=\"text-align: center; \"><nr-sentence class=\"nr-s3 nr-selected\" id=\"nr-s3\" page=\"0\"><b>Decided on 28 April 1976.</b></nr-sentence></h4><h4 style=\"text-align: center; \"><nr-sentence class=\"nr-s4 nr-selected\" id=\"nr-s4\" page=\"0\"><b>Chief Justice A.N.Ray, <nr-word class=\"nr-s4w3\">Justice</nr-word> H.R.Khanna, Justice M.H.Beg, Justice Y.V.Chandrachud and Justice P.N.Bhagwati.</b></nr-sentence></h4><h4 style=\"text-align: center; \"><nr-sentence class=\"nr-s5 nr-selected\" id=\"nr-s5\" page=\"0\"><b>Reported in (1976) 2 SCC 521</b></nr-sentence></h4><h4 style=\"text-align: center; \"><nr-sentence class=\"nr-s6 nr-selected\" id=\"nr-s6\" page=\"0\"><b style=\"background-color: rgb(255, 255, 0);\">Justice H.R. Khanna dissenting Judgment starts at page 234</b></nr-sentence></h4><h4 style=\"text-align: center; \"><nr-sentence class=\"nr-s7 nr-selected\" id=\"nr-s7\" page=\"0\"><b style=\"background-color: rgb(255, 0, 0);\">Overruled in K.S. Puttaswamy v. Union of India</b></nr-sentence></h4><h4 style=\"text-align: center; \"><nr-sentence class=\"nr-s8 nr-selected\" id=\"nr-s8\" page=\"0\"><b style=\"background-color: rgb(255, 0, 0);\">(2017) 10 SCC 1</b></nr-sentence></h4><h4 style=\"text-align: center; \"><br></h4>', '0329165ad67315f1aee5d23b81fe8571.PNG', '07b81112d65a3d9e9007aaa9c14060e2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1976-04-28', 1, '', '', '2021-02-20 19:26:56', '2021-02-20 19:26:56');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(493, 'v1hkPLVuMJZD3veUv8q469Lkx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'H.K. Sri Laxmi Manojna Thirtha Swamiar of Sri Shrirur Mutt vs H.H. Sri Sujnanendra Thirtha Swamiar - - Temporary Injunction', '<h4></h4><h4 style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 0);\"><i>Full judgment</i></span></h4><table class=\"table table-bordered\"><tbody><tr><td><p><br></p><h4 style=\"color: rgb(0, 0, 0);\"><div style=\"text-align: center;\"><div><b>IN THE HIGH COURT OF KARNATAKA</b></div><div><b>H.K. Sri Laxmimanojna Thirtha Swamiar of Sri Shrirur Mutt vs H.H. Sri Sujnanbra Thirtha Swamiar & Others </b></div><div><b>MFA 348 & 349 of 69 </b></div><div><b>Decided on January 30, 1970</b></div><div><b>Justice M.Santosh </b></div><div><b>Reported in 1970 SCC OnLine Kar 17:(1970) 2 Mys LJ 82</b></div></div></h4></td></tr></tbody></table><h4><div style=\"text-align: justify;\"><div>Justice M.Santosh 1. The appellant in M.F.A. 348/69 is the plaintiff in O.S. No. 11/69 in the Court of the Civil Judge, Udipi, SK. In the said suit, he prayed for a declaration that the alleged appointment of the first defendant by the fourth defendant as his successor to the Palimar Mutt of Udipi was illegal and void, that the first defendant has not become one of the Swamiars of the Ashta Mutts of Udipi and hence was not entitled to enter the ‘Garbha Griha’ or Sanctum Sanctorum and perform the Puja to the idol of Lord Krishna or to perform the Pariyayam of the Krishna Mutt for a period of two years commencing on or about 17th January 1970. He prayed that a permanent injunction be granted restraining the first defendant from doing all or any of the things and also for grant of an injunction against defendants 2 and 3 from allowing the first defendant in doing so. In the said suit, he also prayed for grant of a mandatory injunction against the third defendant either to ordain and appoint a suitable Bala-Brahmachari as per the custom and usage as the Matadhipathi of the Phalimar Mutt, or to take upon himself and perform the next Pariyayam; and if for any reason the third defendant fails to do so, to ask or permit defendants 5 to 8 or the plaintiff, to perform the same; and grant a permanent injunction restraining defendants 1 to 3 from interfering in any manner with the party so chosen out of defendants 5 to 8 and the plaintiff, from duly performing the said Pariyayam. After filing the suit, the plaintiff filed I.A. No. I praying that a temporary injunction may be granted restraining the first defendant from entering the Garbha Griha and performing puja in the plaint Mutt and also from performing the Pariyayam commencing from 17-1-1970. The learned Civil Judge did not grant the order of temporary injunction prayed for. This appeal is directed against the said order of the learned Civil Judge refusing to grant the temporary injunction.</div><div>2. The appellants in M.F.A. No. 349/69 are defendants 5 to 8 in the said suit. Respondents 1 to 6 are defendents 1 to 4 and 9 and the plaintiff. In this appeal also defendants 5 to 8 challenge the said order of the learned Civil Judge refusing to grant the temporary injunction prayed for in I.A. No. 1 in the said suit O.S. 11/69. For the sake of convenience, during the course of this judgment, the parties will be referred to by the designations given to them in O.S. No. 11/69.</div><div>3. As both the appeals arise out of the same order passed on I.A. No. 1, they are heard together and disposed of by a common judgment.</div><div>4. Sri H.B. Datar, learned counsel for defendant 1 (Respondent 1 in both the appeals) raised a preliminary objection that the said appeals cannot be heard as the notice issued to respondent 4 had not yet been returned. It is argued that on a Memo filed on behalf of the appellants, this Court passed a Judicial order that respondent 4 may continue in the appeals. It is contended that the said order is binding and the Court cannot go behind the said order and unless respondent 4 is served, these appeals cannot be heard.</div><div>5. As respondents was not served in both the appeals, a Memo was filed by the appellants that notice to respondent 4 may be dispensed with as he was not represented in the lower Court. On the said Memo, this Court passed an order on 18-11-1969 directing that respondent 4 may continue. Thereafter, on 3rd December 1969 the appellant in MFA. 348/69 filed I.A. No. II stating that the order of the lower Court on I.A. I was passed without service of notice on respondent 4 and he was not a party to the said order and hence it was not necessary for him to be impleaded in this appeal. It is also stated that no relief is prayed for as against respondent 4. The appellant has further stated that he withdraws the appeal against the 4th respondent and the appeal as against him may be dismissed. No orders were passed on this application. When the appeals came up for hearing before me on 15-1-1970, the appellants in M.F.A. 349/69 also filed a Memo stating that the appellants are withdrawing the appeal against the 4th respondent and the appeal may therefore be dismissed as against the said respondent as not pressed.</div><div>6. It is contended on behalf of the appellants that the appellants have a right to withdraw their appeal against any of the respondents unconditionally and reliance is placed on Bijayananda v. Satrughna Sahu [AIR. 1963 SC. 1568.] . In the said decision in paragraph 7, their Lordships have observed as follows:—</div><div>“It is unnecessary for our present purpose to decide whether the ??? right of the appellant to withdraw an appeal unconditionally flows flows from S. 107(2) or is an inherent right of the appellant on the analogy of Or. 23, R. 1(1). But there can be no doubt that an appellant has me right to withdraw his appeal unconditionally and if he makes such an application to the court, it has to grant it.”</div><div>7. I therefore, permitted the appellant to withdraw the appeals as against the 4th respondent and took up the hearing of the said two appeals.</div><div>8. Sri Datar, learned counsel appearing on behalf of the 1st respondent, raised another preliminary objection that M.F.A. 349/69 is not maintainable. It is argued by Sri Datar that defendants 5 to 8 who are the appellant a in this appeal had earlier instituted O.S. No. 48 of 1969, a suit for permanent injunction, in the Court of the Munsiff at Udipi, restraining the first defendant from performing Puja in Sri Krishna Mutt, in the said suit, they also prayed for an order of interim injunction and the same was dismissed. The appeal filed against the said order is at present pending. They are now moving this Court to decide what is actually pending in the lower Court. It is also argued that defendants 5 to 8 are not persons aggrieved by the order passed on I.A. No. I in O.S. 11/69. It was only the plaintiff, who had applied for the interim order before the learned Civil Judge who has got a right of appeal and not defendants 5 to 8 who are only formal defendants in the said suit. No relief has been claimed against defendants 5 to 8 in the said suit filed by plaintiff. Sri Datar has relied on Nirmal Singh v. Zamir Uddinkhan [AIR. 1937 All. 368.] in support of his contention.</div><div>9. Sri Krishna Rao, learned counsel appearing on behalf of the appellants in M.F.A. 349/69, has contended that the scope of the two suits are different and the reliefs claimed therein are also different. The earlier suit, O.S. 48/69 filed in the Munsiff\'s Court by defendants 5 to 8 was only a suit for permanent injunction restraining D-1 from performing the worship in Sri Krishna temple. In the later suit, O.S. 11/69 filed in the Court of the Civil Judge, the relief claimed is comprehensive and includes a prayer that defendant 1 may be prevented from performing the Pariyayam for a period of two years. There is a further prayer for granting a mandatory injunction against the third defendant directing him to appoint a suitable Bala Brahmachari as the Matadhipathi of Phalimar Mutt and also directing him to conduct the Pariyayam and if he fails to do so, to permit defendants 5 to 8 and the plaintiff to conduct the said Pariyayam. In the suit before the Munsiff only defendants 1 and 2 had been made parties, whereas in O.S. 11/69 all interested persons have been made parties. The learned Munsiff has passed only an interim order refusing the injunction prayed for in the said suit and no decision has been given in the suit and the same is still pending. It is not correct to say that defendants 5 to 8 are not interested in the order passed by the learned Civil Judge refusing to grant a temporary injunction. Sri Krishna Rao has relied on Venkata v. Lingayya [ILR. 47 Mad. 633.] and Sheodhan v. Daryao [AIR. 1966 SC. 1332.] in support of his contentions.</div><div>10. In Nirmal Singh v. Zamir Uddin Khan [AIR. 1937 All. 368.] , their Lordships have laid down that where in a sun no relief has been claimed by the plaintiff against the pro forma defendant, the pro farma defendant has no right of appeal against the decree when the suit is dismissed, inasmuch as he has no locus standi to appeal. In the said case no relief had been claimed by the plaintiff against the pro forma defendant. The plaintiff had not filed any appeal; on the other hand the appeal was filed by the pro forma defendant praying that the claim of the plaintiff may be decreed with costs. The Court also held that the said defendant did not possess any right in the suit land in question and he had not asked for any relief for himself, and he had therefore no locus standi to appeal, in the instant case, defendants 5 to 8 are Matadhipathis of four Ashta Mutts of Udipi and are interested in the affair of Sri Krishna Temple. Their contention is that the appointment of defendant 1 as the Matadhipathi of Phalimar Mutt is illegal and void and that he has no right to enter the “Garbha Griha” and do Puja and to perform the Pariyayam of the plaint Mutt. They are as much interested as the plain till in the order of the learned Civil Judge refusing to grant a temporary injunction as prayed for in I.A. No. I. In the counter to I.A. No. I filed by defendant 5 he has stated in paragraph 3 as follows:—</div><div>“It is absolutely just and necessary that the court be pleased to pass an order of temporary injunction to protect the time honoured customs and usages governing the suit religious institutions as correctly narrated in plaint paras 7 to 11.”</div><div>11. In paragraph 5 thereof, he has sated as follows:—</div><div>“This opponent under the circumstances prays that the Court be pleased to grant the protective relief prayed for in which even the Shivalli Brahmin community as a whole is so keenly interested and has got very much at stake.”</div><div>12. In the counter filed by defendant 6 in respect of the said I.A. No. 1, in paragraph 5, it is stated as follows:—</div><div>“The plaintiff and the respondents 4 to 8 will suffer irreparable injury and loss incapable of being compensated in money if this Court should refuse the temporary injunction claimed by the Plaintiff. The opponents 4 to 8 are deprived of the benefit of worshipping Lord Sri Krishna.”</div><div>13. I am therefore of opinion that defendants 5 to 8 are equally interested in the order passed by the learned Civil Judge, refusing to grant an interim injunction and, as they are persons aggrieved by the said order, they have got a right of appeal against the order passed on I.A. I and the appeal filed by them is maintainable.</div><div>14. Now coming to the merits of the case Sri Karanth, learned counsel appearing on behalf of the appellant in M.F.A. 348/69, has contended that the order of the learned Civil Judge is unsound, contrary to law and arbitrary. He argues that the custom alleged by the plaintiff is admitted, but the contesting defendants have set up an exception to it and failed to prove the exception set up by them. The succession to a Mutt is governed entirely by the customs of the particular Mutt. In support of the same, he has cited Vital Das v. Sant Ram [AIR. 1954 SC. 606.] and passages from Hindu Law of Religious and Charitable Trust by Mukherjea, pages 316, 324, 331 and 332. The custom that at the time of the ordination, the person must be a Bala Brahmachari has been judicially recognised by the decision in Raghubhushana Thirthaswami v. Vidiavaridhi Thirthaswamiar [AIR. 1917 Mad. 809.] . The lower Court has misunderstood the question of ‘defilement’ of the idol and has failed to follow the decision in Venkataramana Devaru v. State of Mysore [AIR. 1958 SC. 255.] . The lower Court was in error in refusing to grant an injunction on the ground that the defilement has already taken place, ignoring the fact that every act of worship which is not competent is a recurring act of defilement and the principles governing the matter, and it is a grave injury to the institution and is a continuing one. The theory of factum valet put forward by the lower Court has no application if the appointment itself is invalid. With regard to the applicability of the said doctrine, he has relied on the passage in page 10 of Raghavachariar\'s Hindu Law and also at page 38 in Mayne\'s Hindu Law. He has argued that, the Swamiars of the Ashta Mutts of Udipi are joint trustees of the plaint Mutt, and this has received judicial recognition by the Madras High Court in S.A. Nos. 614 and 615 of 1951. In the written statement filed by the 1st defendant in O.S. 48/69 in the Munsiff\'s Court, the contention that the Pariyayam Swami is the sole trustee has not been put forward. The joint rights of the Matadhipathis to participate in the management of Sri Krishna Temple has been recognised in the order passed by the Collector (Ext. P-6) as early as in 1851. The said right has been recognised by the various decisions of the Courts. Sri Karanth also argues that after Lakshminarasimhaiah\'s case [(1965) 1 Mys. L.J. 370.] , this Court by later decisions in Sakharam v. Vithal [17 LR. 512.] and Rangamma v. Krishna Rao [(1968) 1 Mys. L.J. 552.] , has laid down that the Appellate Court has a right to interfere with the order of the lower Court with regard to the grant of interim injunctions, if the lower Court has ignored relevant facts and has adopted unjudicial approach. He has relied on the observations made by this Court in CRP. 1894/68 [1969 Mys. L.J. SNRD. 202.] , wherein this Court has held that an error which the Appellate Court is called upon to correct is an error in the conclusion. It is therefore argued that the reasons given by the ltarned Civil Judge for not granting an interim injunction are not sound and tenable and are contrary to law and deserve to be set aside.</div><div>15. Sri Krishna Rao, learned Counsel appearing on behalf of the appellants in MFA. 349 of 1969, has contended that the order of the lower Court refusing to grant an injunction is unsustainable. The exercise of discretion by the lower Court is unreasonable and unjust. The lower Court has erred in holding that a prima facte case has not been made out by the plaintiff. In the written statement of defendant 1, at paragraph 3, he has stated that the averments made by the plaintiff in paras 3 to 6 are substantially correct. In essential points there is agreement on what is stated in the plaint about the custom set up by the plaintiff. If there is a departure from the custom, it is for the 1st defendant to set up and prove the same. A person initiated, by somebody else does not become a disciple of the mutt in question. It is admitted by the defendants that the initiated boy must be brought to the Mutt and customary ceremonies held in the Mutt. Defendant 1 has not been initiated by the Phalimar Mutt Swamiji and he was not his Sishya or disciple. A person unconnected with the Mutt and a stranger cannot become a Matadhipathi. Merely handing over the management of the Mutt by defendant 4 to defendant 1 is not sufficient; defendant 4 has not stated that he has abdicated the Peetam of the Matadhipathi of Phalimar Mutt. Defendant 1 has not become a ‘Sishya’ of Phalimar Mutt. Merely because he is a Sanyasi, he cannot be initiated. Unless special custom is pleaded and proved by defendant 1, he cannot succeed as the Matadhipathi of the Phalimar Mutt. The appointment of defendant 1 is invalid and illegal. It is admitted that any other Swamiar cannot touch the idol of Sri Krishna and it would amount to defilement of the idol. Even the trustees cannot alter the custom. All the eight Mutts are interested in the worship and management of the suit temple and they are co-trustees in the liberal sense of the term. As the 1st defendant has been improperly appointed, his worship of the idol is a recurring act of defilement. The injury done is to the institution and cannot be computed in terms of money. He has relied on Thiruvenkata v. Venkatacharlu [AIR. 1947 PC. 53.] in support of his contention. He argues that the learned Judge has forgotten the essential things and he is wholly wrong in not granting an interim injunction as prayed for in I.A. No. 1.</div><div>16. The learned Counsel appearing on behalf of respondents 1 and 2, have strongly supported the order of the learned Civil Judge and they contend that the learned Civil Judge was fully justified in the instant case in refusing to pass an order of interim injunction. Sri Krishna Murthy has argued that the plaintiff\'s suit is based on custom and it is well known that customs of different institutions vary and are different and it is dangerous to act on analogies. Defendants 1 and 2 have nowhere admitted the custom put forward by the plaintiff. Defendant 1, in his written statement, has contended that there are two distinct stages in the process of appointing a Matadhipathi in the Ashta Mutts; one is the initiation of a Bala Brahmachari; the next is appointment of Swamiji to the Peetam. These are two different steps and it is possible to stop the ceremonies at any stage. The plaintiff has not established the custom pleaded by him by proper evidence. He has also not made out that there has been a breach of the said custom. The plaintiff having come to Court alleging that there is a particular custom, he must prove the same. The custom must be decided on the testimony in the case. Sri Krishna Murthy argues that the decision rendered in Raghubhushna Thirthaswami v. Vidiavandhi Thirthaswami [AIR. 1917 Mad. 809.] is of no assistance in deciding the controversy in the case. It was a dispute between Bhandarikere Mutt & Bhimanakattai Mutt; these two Mutts admittedly do not belong to the group of Ashta Mutts of Udipi. The said decision is not an authority in regard to the custom prevailing in Udipi Mutts. The various affidavits filed on behalf of the defendants clearly show that neither the custom nor usage required that initiation into Sanyasa and ordination to the Peetam must be contemporaneous. The history of Ashta Mutts abound in such instances and various instances have been given in the affidavits filed on behalf of the defendants. Sri Madhavacharya himself was given Sanyasa by his Guru first and after some days of his initiation into Sanyasa, his Guru established him in the Peeta. Sri Madhavacherya appointed his own brother to the Peetam of Sri Subramanya Mutt. Thereafter, he established the Ashta Mutts at Udipi and to the Peetam of Sode Mutt which is one of the Ashta Mutts he appointed his brother though he was the Matadhipathi of Sri Subramanya Mutt. It is also contended that the worship of Lord Krishna is governed by the rituals prescribed in ‘Tantra Sara Sangraha’, a treatise composed by Sri Madhavacharya himself. As seen from Slokas 138 to 140 in Chapter III therein, the Vigraha of Lord Shri Krishna would be defiled only if thieves, chandalas, pathitha, dog, women in menses and the like enter the Garbha Griha. It is therefore clear that if a prson who is not entitled to perform Puja does Puja, the idol cannot be defiled. It is also stressed by Sri Krishna Murthy that no member of the public is aggrieved and has filed a suit. There is also no irreparable injury as the Pariyayam is being conducted by defendant 1 from 18th January 1970. Defendant 1 has also been offering worship from 3-2-1969 and the plaintiff has kept quiet and filed the suit only on 13th May 1969. The plaintiff has acquiesced for more than three months and did not regard that he was damnified. It is clear from his own statement that he had come to Udipi on 3-3-1969. Having regard to the complexity of the matter, the learned Civil Judge has taken one view and it is a reasonable view. Unless the appellate Court comes to the conclusion that the view taken by the lower Court is unreasonable, capricious or whimsical, the appellate Court will not be justified in interfering with the order of the trial Court.</div><div>17. Sri Datar has referred to the various decisions of this Court and has pointed out that this Court will not be justified in appeal in inters fering with the order of the trial Court unless the exercise of discretion by the trial Court is unreasonable or capricious. He has contended that defendant 1 has filed several affidavits of eminent and distinguished Sanskrit Scholars, Philosophers, authors, and purohits, who have opined that the appointment of defendant 1 is perfectly legal and not opposed to the custom. The bona fides of these various distinguished persons have not at all been challenged by the plaintiff. He has stressed that the balance of convenience is in favour of defendant 1 who has gone and collected some lakhs of rupees from various persons for conducting the Pariyayam. Defendant 1 is now the Pariyayam Swami and the Pariyayam has commenced from 18th January 1970. He argues that the judgment of the learned Civil Judge satisfies every requirement and the learned Judge has applied all the tests necessary and the order cannot be said to be unreasonable or whimsical.</div><div>18. Sri Raghavendra Rao, learned Counsel appearing on behalf of defendant 2, has drawn my attention to the various passages in Mukherjea\'s Hindu Law of Religious and Charitable Trusts. He argues that Pariyaya Swamy alone is responsible for conducting the Pariyayam and performing Puja in Sri Krishna Mutt for two years and there is no question of the other Matadhipathis being Joint trustees. Pariyayam Swamy alone is responsible to pay off the debts incurred for the performance of the Pariyayam. The founder of the Mutt is competent to appoint his successor and the appointment of defendant 1 by defendant 4 in this case is perfectly legal. He argues that the appointment of the plaintiff himself is irregular as he has admitted that when he was ordained, he was past 17 years and not a Bala Brahmachari below 16 years. Irreparable loss and injury will be caused to defendant 1 if injunction is issued and no irreparable loss or injury will be caused to the plaintiff if the injunction is refused, as his term as Pariyaya Swamy commences some years later and there is no imminent danger. Defendant 1 has been performing Puja from 3-2-1969. Plaintiff and other Matadhipathis have not been prevented from performing Puja in the Sri Krishna Mutt by defendants 1, 2 or 3. Plaintiff has not placed concrete material about the custom and the custom set up by them has to be proved by evidence. If an order of interim injunction is granted it would result in utter confusion and not only put a stop to the conduct of the Pariyayam but also bring to a standstill the administration of the Phalimar Mutt. None of the tests laid down by the Court for the issue of temporary injunction has been satisfied in this case and the learned Civil Judge was justified in refusing to grant an interim injunction as prayed for by the plaintiff.</div><div>19. The law with regard to the grant of temporary injunctions by Courts is well settled. In the Law Relating to Injunction by John George Woodroffe, at page 101, the learned Author states as follows:</div><div>“‘The power which the Court possesses of granting injunctions whether interlocutory or perpetual, should be very cautiously exercised, and only upon clear and satisfactory grounds; otherwise it may work the greatest injustice. The plaintiff is bound to make out a case showing a clear necessity for its exercise; it being the duty of the Court rather to protect acknowledged right than to etablish new and doubtful ones. Moreover, a temporary injunction is a restrictive or prohibitory process designed to compel the party against whom it is granted to maintain his status merely until the matters in dispute shall by due process of the Courts be determined. As such, an injunction is in its operation somewhat like judgment and execution before trial; it is only to be resorted to from a pressing necessity; to avoid injurious consequences which cannot be repaired under any standard of compensation.</div><div>In the case of temporary injunction the applicant must show a fair prima facie case in support of the right claimed and an actual or threatened violation of that right, productive of irreparable or at least serious damage; his conduct must be such as not to disentitle him to assistance; it should be fair and honest, and in particular there must be no acquiescence or delay; there must be a greater convenience in granting than refusing the injunction and lastly equally efficacious relief must not be obtainable by any other usual mode of proceeding except in case of breach of trust. The subject matter of a temporary injunction is the protection of legal rights pending litigation. Its object is to prevent future injury, leaving matters as far as possible in status quo until the suit in all its bearings can be heard and determined. The Court upon an application for a temporary injunction will deal with the injunction upon the evidence before it, and will confine itself strictly to the immediate object sought, and as far as possible abstain from prejudging the question in the cause.”</div><div>20. This Court in Lakshminarasimhiah v. Yalakki Gowda [(1965) 1 Mys. L.J. 370.] , has laid down as follows:</div><div>“The granting or refusing of injunction is a matter resting in the sound discretion with the trial Court and consequently no injunction will be granted whenever it will operate oppressively, or inequitably or contrary to the real justice of the case. In exercising the discretionary power, the Courts should be guided by the following guiding principles.</div><div>There is no power which is more delicate, which requires greater caution, deliberation and sound discretion or is mere dangerous in a doubtful case, than the issuing of an injunction. It is the strong arm of equity, that never ought to be extended unless to cases of great injury, where Courts of law cannot afford an adequate or commensurable remedy in damages. The right must be clear, the injury impending or threatened so as to be averted only by the protecting preventive process of injunction. But that will not be awarded in doubtful cases, or new ones not coming within well established principles; for if it issues erroneously, an irreparable injury is inflicted for which there can be no redress, it being the act of a Court, not of the party who prays for it. It will be refused till the Courts are satisfied that the case before them is of a right about to be destroyed, irreparably injured, or great and lasting injury about to be done by an illegal act. In such a case the Court owes it to its suitors and its own principles to administer the only remedy which the law allows to prevent the commission of such act. The discretionary power must be exercised with extreme caution and applied only in clear cases; otherwise, instead of becoming an instrument to promote the public as well as private welfare, it may become a means of an extensive and perhaps an irreparable injustice.”</div><div>21. A series of decisions of this Court have also laid down as to when the appellate Court is justified in interfering with the discretionary order passed by the trial Court granting or withholding the grant of temporary injunctions. In Lakshminaraismhaiah\'s case [(1965) 1 Mys. L.J. 370.] mentioned above, this Court has observed as follows:</div><div>“An appeal lies from the order of a trial Judge granting or refusing to grant an interim injunction, but what the Court of appeal has to consider is simply whether or not the Judge who dealt with the matter has properly exercised the discretion which he undoubtedly possesses. The question for the decision of the Civil Judge, who heard the appeal, was whether the Munsiff did not properly exercise his judicial discretion. The appellate Judge is not to approach the case as if he were the trial Judge.”</div><div>22. Sri Karanth has strongly relied on some of the subsequent decisions of this Court. In CRP. 1894/68(11), this Court has stated that it is not a correct proposition of law to say that in an appeal against an order of interim injunction, the appellate Court has to confine itself to the question of the exercise of discretion by the trial Court. An error which the appellate Court is called upon to correct is an error in the conclusion, contribution to which is made from two sources, (1) a prima facie erroneous decision as to where possession lies, and (2) the propriety or otherwise of the discretion in favour of making or refusing to make an order of injunction. The order of the trial Court should not ordinarly be interferred with if the appellate Court finds that the opinion of the trial Court regarding possession is fairly possible on the material placed before it and that on the said finding the discretion has been rightly exercised in all the circumstances of the case.</div><div>23. In Sakharam Nanasaheb Patel v. Vithal Siddappa Chalawadi [17 LR. 512.] this Court has stated that to grant or refuse to grant interim injunction is within the discretion of the trial Court. It is a matter of judical discretion and if the Court which either grants the injunction or refuses to grant it, rightly appreciated the facts and applied to those facts the well known principle that the Court must first see that there is a bona fide contention between the parties, and then consider on which side, in the event of success, will lie the balance of inconvenience if the injunction does not issue, then such an order must be held to have been properly made by the trial Court in exercise of its judicial discretion. The appellate Court has not power to set aside the discretion order of the trial Court on the ground that the trial Court in its view has not correctly appreciated the materials placed before it.</div><div>24. In Khan Saheb Abdul Gani v. Khan Saheb Abdul Shakoor [20 LR. 464.] , this Court has observed that the grant or refusal of an interim injunction would depend upon the particular circumstances of each case. At the stage of granting an interim injunction, the Court is not expected to embark upon a detailed investigation on the relative merits of the contentions of the parties. It would be enough if the plaintiff raises questions of a substantive character calling for decision after an examination of all the facts and the law arising in the case. At the interlocutory stage the Court has to consider the nature and the merits of the rival contentions bearing on the limited question as to whether or not the plaintiff has made out a prima facie case. In granting an interim injunction the Court has to consider whether the party seeking injunction has made out that the injury complained of is so serious and irreparable and imminent that an immediate order of injunction is necessary. In dealing with this question the Court must have due regard to the conduct and dealing of the parties before the application is made to the Court by the plaintiff to preserve and protect his right. Since the jurisdiction to interfere is purely equitable, it is largely governed by equitable principles.</div><div>25. In Rangamma v. Krishnappa [(1968) 1 Mys. L.J. 552.] , this Court has stated that granting or refusal of temporary injunction rests on the sound exercise of discretion by the Court. Such exercise of discretion cannot be lightly interfered with by the appellate Court, unless it is shown that such exercise of discretion is unreasonable or capricious. That a different view was possible on the facts and circumstances of the case by itself will not be sufficient to interfere with the order. This Court quoted the decision of the Supreme Court in U.P. Co-op. Federation Ltd. v. Sunder Bros. [AIR. 1967 SC. 249.] , wherein the Supreme Court has laid down that it is well established that the appellate Court should be slow to interfere with the discretion exercised by the trial Court. If the discretion has been exercised by the trial Court reasonably and in a judicial manner, the fact that the appellate Court would have taken a different view may not justify interference with the trial Court\'s exercise of discretion; but if it appears to the appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored relevant facts then it would be open to the appellate Court to interfere with the trial Court\'s exercise of discretion.</div><div>26. Bearing in mind the principles laid down by this Court in the abovementioned decisions, I will consider whether the learned Civil Judge has exercised his discretion properly. Before the plaintiff can ask for grant of a temporary injunction, he must establish (1) that he has a prima facie case, (2) that protection is necessary from the species of injury known as irreparable before the legal right can be established, and (3) the mischief or inconvenience that is likely to arise from withholding an injunction is greater than by granting it.</div><div>27. The first question that arises for consideration is whether the plaintiff has made out a prima facie case. It is the contention of the appellants that there is a well established custom and usage which has obtained for the last several centuries in the eight Mutts of Udipi, that the Matadhipathi should choose a Bala Brahmachari belonging to Shivalli Thulu Brahmin community, as his successor. The initiation to Sanyasa and the ordination to the Mutt must be contemporaneous. It is contended by the appellants that this custom has been admitted by defendant 1 in his written statement. As defendants plead deviation in this custom, it is for the defendants to prove the same. In paragraph 3 of the written statement of defendant 1, it is stated that defendant 1 is willing to accept the averments in paras 3 to 6 of the plaint as substantially correct. The custom pleaded by the plaintiff is well established and has received judicial recognition by Courts. In Raghubhushana Thirthaswami v. Vidiavandhi Thirthaswami [AIR. 1917 Mad. 809.] , the Madras High Court has held that there was such a custom. In the various affidavits filed on behalf of the plaintiff, the persons concerned have referred to this well established custom. At the time of ordination, defendant 1 was not a Bala Brahmachari but in fact he was senior to defendant 4 by about 20 years. He was not connected with Phalimar Mutt but was the head of Bhandarikere Mutt which is not one of the eight Udipi Mutts. A person unconnected with Phalimar Mutt cannot be ordained and become a Matadhipathi of the said Mutt.</div><div>28. Defendant 1 in paragraph 3 of his written statement, has stated that he is willing to accept the averments in paras 3 to 5 of the plaint as substantially correct. Paras 3 to 5 of the plaint refer to the establishment of the Mutt by Sri Madhavacharya and the history of the Mutts. It states how the eight Mutts were established and subsequently grouped into four pairs, each pair being called ‘Dwandwa’. In paragraph 4 of the written statement, defendant 1 has clearly stated that the averments in paragraph 7 of the plaint are not correct. Para 7 of the plaint refers to the well established custom mentioned above. In the said paragraph, defendant 1 has stated that there are two distinct stages in the process of appointing a successor to the Matadhipathi Peetam. One is the initiation of a Bala Brahmachari into Sanyasa and the next is the ordination to the Peeta. These two stages are entirely different. In paragraphs 6 and 7, defendant 1 has denied the custom set up by the plaintiff. It is also pointed out that the plaint loses sight of the distinction between initiation and ordination and the fact that unless ordination is completed there is no accrual of the privileges of Matadhipathi.</div><div>29. There is considerable force in the contention of Sri Krishna Murthy that the decision of the Madras High Court in Raghubhushana Thirthaswami v. Vidiavaridhi Thirthaswami [AIR. 1917 Mad. 809.] , will not be of much assistance to the plaintiff to show that the custom set up by the plaintiff has been judicially recognised by the Courts. The question that arose in that case was whether the nomination by the head of Bhimanakattai Mutt to the headship of Bhandarikere Mult was valid. It may be pointed out that both Bhimanakattai and Bhandarikere Mutts do not belong to the group of the eight Mutts of Udipi. Bhimanakattai Mutt is not situated in South Kanara District, but lies in the territory of old Mysore. Their Lordships have also pointed out that the custom set up in a case is dependant upon the evidence adduced in the case. In that case, their Lordships were not called upon to decide whether there was such a custom with regard to the eight Udipi Mutts. Their Lordships in the said decision have clearly stated that there is no rule of law pertaining to succession to the headship of Mutts generally; the rule must be made out in the case of each particular Mutt by proof of custom. Their Lordships have also pointed out that in appreciating evidence of custom, no general rule applicable to all cases can be laid down other than that the custom must be proved by clear and cogent evidence.</div><div>30. In Mukherjea\'s Hindu Law of Religious and Charitable Trusts, at page 316, the learned Author states as follows:</div><div>“In a Mutt on the other hand it is the custom or practice of a particular institution which determines as to how a successor is to be appointed.</div><div>“It was laid down by the Privy Council in the case of Greedharee Doss v. Nundo Kishore (11 MIA. 405) as early as in the year 1867 ‘that the only law as to these Mohunts and their offices, functions and duties is to be found in custom and practice which is to be proved by testimony’. By customs or uages are not meant any general customary law by appeal to which these questions have to be decided. They refer to the usage of the particular institution or Mutt in regard to which the question arises. As the Privy Council observed in Rajah Muttu Ramalinga v. Perianayagam Pillai (LR. 1 IA. 209) the constitution and the rules of religious brotherhood amongst the Hindus are by no means uniform and what the Court should try to ascertain is the special laws and usages, if any, of the particular institution whose affairs have become the subject of litigation.”</div><div>31. Again, at page 318 it is pointed out that “the custom relating to the appointment of Mohunts vary greatly from each other in different institutions and it is not possible to enumerate them exhaustively.”</div><div>32. The plaintiff has produced affidavits of a number of persons in support of the custom alleged by him. Sri Annaji Rao, Sri Narayana Tantri, Sri Gururaja Tantri and Sri Venkataramana Upadhyaya have all sworn that there was such a well established custom so far as the eight Mutts are concerned. They have stated that the appointment of defendant 1 is opposed to the custom.</div><div>32. The plaintiff has produced affidavits of a number of persons in support of the custom alleged by him. Sri Annaji Rao, Sri Narayana Tantri, Sri Gururaja Tantri and Sri Venkataramana Upadhyaya have all sworn that there was such a well established custom so far as the eight Mutts are concerned. They have stated that the appointment of defendant 1 is opposed to the custom.</div><div>33. As against these affidavits filed on behalf of the plaintiff, defendant 1 has produced a number of affidavits from different persons, in support of the contention that the appointment of defendant 1 is not opposed to the custom. Sri Seetharama Udupa has stated that neither the custom nor usage requires that initiation into Sanyasa and ordination to the Peeta must be contemporaneous. The history of Madhwa Mutts abounds in such instances and he has given six well known instances. He has mentioned that Sri Madhavacharya himself was given Sanyasam by his Guru and after some days of his ??? into Sanyasa his Guru established him in the Peetam. Further, Sri Madhvacharya himself had later appointed eight Yetis as the heads of the Ashta Mutts established by him. In those cases also, the initiation and ordination were not simultaneous or contemporaneous. He has further stated that Sri Madhavacharya appointed his own brother to the Peetam of Subramanya Mutt and thereafter established the Ashta Mutts at Udipi and to the Peetam of Soda Mutt, he appointed his brother, who was already a Matadhipathi of Sri Subramanya Mutt. Similarly Sri Annaji alias Venkatakrishna Ballal and Sri Ramakrishna Taniri have stated that the appointment of defendant 1 was in consonance with the custom prevailing in the eight Mutts. Sri Lakshminarayana Upadhayaya has also stated that initiation into Sanyasam and ordination to the Peetam need not be at the same time and by same person and that one Matadhipathi can be the head of two different Mutts, and has mentioned various such instances.</div><div>34. In paragraph 22 of his order, the learned Civil Judge has summarised the effect of the conflicting affidavits, as follows:</div><div>“It would not be proper to give any finding whether varies customs and usages set out by the plaintiff in the plaint have been proved or not. For, they are matters to be gone into after taking evidence in the suit. At this stage, we are only concerned with the fact whether the plaintiff has made out prima facie case and whether there has been any invasion or infraction of the legal right of the plaintiff and whether the plaintiff has succeeded in establishing that the injury is an irreparable one or is of such a nature as to justify the issue of injunction against the defendants 1 and 2.”</div><div>35. Again, in paragraph 35, he has stated as follows:</div><div>“From the above affidavits, which have been filed by eminent Sanskrit Scholars and Pandits, there is no scope to infer, that any custom and usage have been violated, by the appointment of first defendant as Matadhipathi of Phalimar Mutt. No doubt the affidavits filed for the plaintiff would indicate that appointment of first defendant is contrary to longstanding custom and usage. As contended by Mr. Karanth, the custom and usage could be proved by general evidence given by the members of community without proving specific instances. In Panna Lal v. Chiman Parkash (AIR. 1947 Lah. 54) Justice Mahajan as he then yas) observes that—</div><div>‘A custom can properly be proved by general evidence given by members of a community without proof of specific instances.’</div><div>In the instant case, the custom and usage set up by the plaintiff will have to be more satisfactorily proved by adducing general evidence and that could be done only during the trial of the suit. Now, we are having only affidavit evidence. One set alleging the custom & usage have been violated and the other set alleging that the custom and usage have not been violated. Unless the plaintiff is able to establish the custom, which he could do only during the trial of the suit, it cannot be said that the plaintiff has established the custom and usage pleaded. Unless that is made out, it cannot be said that the plaintiff has made out prima facie case in his favour.”</div><div>36. The view taken by the learned Civil Judge, in the circumstances of the case, cannot be said to be unreasonable.</div><div>37. Even assuming for the sake of argument that the plaintiff has made out a prima facie case, as has been pointed out by this Court in G.M. Gopalakrishna v. A.S. Machayya [(1969) 1 Mys. L.J. 328.] , even if the plaintiff has a prima facie case, it does not necessarily follow that an order of temporary injunction should be granted. The Court must further consider the question whether the injury is irreparable and imminent and the question of balance of convenience.</div><div>38. As has been pointed out by Woodroffe, in the Law relating to Injunctions, at page 101, in the passage quoted above, an injunction is in its operation somewhat like a judgment and execution before trial; it is only to be resorted to from a pressing necessity to avoid injurious consequences which cannot be repaired under any standard of compensation. As has been pointed out in Lakshminarasimhaiah\'s case [(1965) 1 Mys. L.J. 370.] , a temporary injunction will be refused till the Courts are satisfied that the case before them is of a right about to be destroyed, irreparably injured, or great and lasting injury to be done by an illegal act. In Khan Saheb Abdul Gani v. Khan Sareb Abdul Shakoor [20 LR. 464.] , this Court has pointed out that in granting an interim injunction the Court has to consider whether the party seeking injunction has made out that the injury complained of is so serious and irreparable and imminent that an immediate order of injunction is necessary. In dealing with this question the Court must have due regard to the conduct and dealing of the parties before the application is made to the Court by the plaintiff to preserve and protect his right. Since the jurisdiction to interfere is purely equitable, it is largely governed by equitable principles. It is therefore clear that before the Court grants an order of temporary injunction it must be satisfied that the Court\'s interference is necessary to protect the plaintiff from injury or mischief which is imminent and is at the same time irreparable. The plaintiff should make out that the injury is so serious and irreparable and imminent that an immediate order of the Court is necessary even before his rights are established at the trial. It is not disputed that defendant 1 after he was appointed as the Swamiar of Phalimar Mutt by defendant 4 conducted Puja in Sri Krishna Mutt on 3-2-1969. The learned Counsel appearing on behalf of defendant 1 has stressed that the plaintiff has kept quiet for about three-and-a-half months and has filed the suit only on 13-5-1969. In answer to the contention on behalf of the plaintiff that he was away in Haridwar, the respondent\'s Counsel has pointed out that on 27-2-1969, he was in Udipi and filed a verified statement. It is also urged by the learned Counsel for the respondents that defendant 1 was the head of Bhandarikere Mutt and is a person of great learning, high character and merely by his offering worship to Lord Krishna, the idol cannot be defiled. Sri Madvacharya himself has laid down in what cases the idol of Lord Krishna is defiled, and if a head of another Mutt offers worship, it cannot be said that the idol is defiled. It is contended on behalf of the plaintiff that as defendant 1 has not been properly appointed, he has no right to enter the sanctum sanctorum and this would result in defilement of the idol. It is pointed out by the learned Counsel for the respondents that defendant 2 who was then the Pariyaya Swami and defendant 3, the Swamiyar of Admer Mutt which is the Dwandwa Mutt have accepted the appointment of defendant 1 to the Phalimar Mutt as regular and have permitted him to enter the sanctum sanctorum and perform the Puja of Lord Krishna.</div><div>39. I am of opinion that it is not necessary to decide this question at this stage. The fact remains that defendant 1 had entered the sanctum sanctorum on 3-2-1969 and has been thereafter offering Puja. Plaintiff does not seem to have taken prompt steps and matters have proceeded thus, for nearly a year. It cannot be said that the injury complained of is so serious and irreparable and imminent that an immediate order of injunction is necessary. It may be mentioned that though the plaintiff, after filing this appeal, applied by I.A. No. 1 for an order of temporary injunction to this Court, on 15th October 1969 he did not press the same and agreed to the appeals being posted for a hearing in the first week of December 1969, as is seen from the order of this Court, dated 31-10-1969 passed on the said I.A. No. 1. Under the circumstances mentioned above, the view taken by the learned Civil Judge, that if an injunction is not issued, irreparable injury would not be caused to the plaintiff, cannot be said to be unreasonable. Taking the question of balance of convenience, it must be stated that it is again in favour of defendant 1. Defendant 1\'s Counsel has pointed out that defendant 1 is the Pariyaya Swamiar and the Pariyayam has commenced from 18th January 1970. Elaborate arrangements have been made by Defendant 1 for conducting the said Pariyayam and if the same is stopped, there would be utter confusion and thousands of worshippers of Lord Krishna would be inconvenienced and the worship in Sri Krishna Temple will come to a standstill. The learned Counsel appearing on behalf of the appellants has not disputed that the Pariyayam has commenced on the 18th January 1970. The learned Civil Judge has also pointed out that if an injunction is issued, more injury and harm will be done to Phalimar Mutt of which defendant 1 has become the Matadhipathi, and the day-to-day function of the Mutt would be hampered and everything would come to a standstill. It is also represented by the lerned Counsel on behalf of defendant 1 that the suit in the lower Court is ready for hearing and may be heard and disposed of within a short time. Taking all the facts and circumstances into consideration, I agree with the learned Civil Judge that the balance of convenience is most certainly in favour of defendant 1 and that the mischief or inconvenience that is likely to arise from granting the injunction is greater than by withholding the same. In para 41 of his order, the learned Civil Judge has summarised the position as follows:</div><div>“On a review of the entire evidence, placed before me, I have no hesitation to conclude, that the plaintiff has failed to make out a prima facie case. Further, it has not been established that if the injunction is not issued irreparable injury would be caused or plaintiff\'s legal right would be infringed. Since the first defendant had already performed pooja after 3-2-1969, question of further defilement of idol of Lord Krishna would not arise. Therefore, there is nothing to prevent any danger, much less imminent danger. The balance of convenience, is most certainly, in favour of the first defedant who has been appointed by the quondam Swamiar of Phalimar Mutt as his successor to the said Mutt.”</div><div>40. After giving anxious consideration to the various points urged before me by the learned Counsel, I am of opinion, it cannot be said that the learned Civil Judge has exercised his judicial discretion improperly. It cannot be said that he has exercised his discretion unreasonably or capriciously. There are no good grounds to interfere with the order of the learned Civil Judge. The lower Court is directed to dispose of the suit expeditiously.</div><div>41. In the result, these appeals fail and are dismissed. The costs of the appeals will be costs in the cause.</div><div><br></div></div></h4>', '40c19c5bb4f4bba0fc09e62e50f4e8e4.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1970-01-30', 1, '', '', '2021-02-22 22:40:15', '2021-02-23 00:35:33');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(494, 'mvo9Ci5kfS4EHJsZqTBcwHaTv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Lakshminarasimhiah and others vs Yalakki Gowda  - Temporary Injunction', '<h4 style=\"text-align: justify;\"><br></h4><h4 style=\"text-align: justify;\"><table class=\"table table-bordered\"><tbody><tr><td><p><br></p><h4 style=\"\"><div style=\"color: rgb(0, 0, 0); text-align: center;\"><div>Lakshminarasimhiah And Ors. vs Yalakki Gowda</div><div>Civil Revn. Petn. No. 463 of 1964,</div><div>Decided on 5 January, 1965.</div><div>Justice G.K. Govind Bhat</div><div>Reported in AIR 1965 </div></div></h4></td></tr></tbody></table></h4><h4 style=\"text-align: justify;\"><span style=\"background-color: rgb(255, 255, 0);\">NOTE:</span> This is one of the earliest and most celebrated judgments from the Karnataka High Court. Even after 55 years, the ratio laid down holds the field like an oak tree. Of course, this judgment is from one of the finest judges of the Karnataka High Court, Justice G.K.Govind Bhat. In just 11 paragraphs, the entire law on injunctions is discussed and guidelines laid down. The beauty of the judgment lies in its simplicity. Almost every civil lawyer has referred to this judgment during his practice.</h4><h4 style=\"text-align: justify;\"><i style=\"background-color: rgb(255, 255, 0);\">Full Judgment below </i></h4><h4 style=\"text-align: justify;\">Justice G.K.Govind Bhat: (1) This revision petition arises out of an interlocutory application by the respondent made under Rule 2 of order 39 to the Code of Civil Procedure, in a suit for a permanent injunction brought by him to restrain the deferring with the plaintiff’s possession of the suit lands. The trial court issued an ex parte order of ad interim injunction; but when the defendants entered appearance and moved for vacating the said order, it was dissolved. Against the said order, the plaintiff preferred an appeal to the court of the Civil Judge at Bangalore, who allowed the appeal and granted the temporary injunction as prayed for. Aggrieved by the said order, the defendants have preferred the above said Civil Revision Petition.</h4><h4 style=\"text-align: justify;\">(2) In order to appreciate the contention raised in this petition, it is necessary to set out the material facts which are not in dispute. The petitioners were the tenants of the suit lands which belonged to one Ramachandra Rao, who, on 24-4-1959 conveyed the said lands to the plaintiff. Thereafter, the plaintiff filed T.C. No. 10 of 1960-61 before the Tahsildar of Magadi, for eviction of the defendants, under the Mysore Tenancy Act. In the said proceedings the case of the plaintiff was that the defendants were tenants on the land, and that he was entitled to seek their eviction. The defendant did not dispute the plaintiff’s case that they were the tenants.</h4><h4 style=\"text-align: justify;\">When the said proceedings for eviction of the defendants were pending before the Tahasildar, the Mysore Tenants (Temporary Protection from Eviction), Act, 1961 (Mysore Act 37 of 1961), hereinafter called the Act, came into force on December 31, 1961. The Act, by Section 4, provided for stay of all suits, proceedings in execution of decrees or orders and other proceedings for the eviction of tenants from the lands held by them as tenants or in which a claim for such eviction is involved in any Civil or Revenue Courts during the period the Act remains in force. Section 3 imposed a total prohibition against the eviction of tenants during the period the Act remains in force from the land held by a tenant. Thus, there is an absolute bar imposed by the Act against the eviction of tenants during the pendency of the Act.</h4><h4 style=\"text-align: justify;\">(3) By virtue of Section 4 of the Act, T.C. No. 10 of 1960-61 referred to above was stayed and the Tahasildar had no jurisdiction to proceed with the enquiry and make any order. The Tahasildar of Magadi, however, in open defiance of the Act, proceeded with the enquiry and made an order on April 21, 1962, directing the eviction of the defendants. It must be mentioned that the Tahasildar gave a finding that the defendants were not the tenants, though that was not the case of either party. The Tahasildar had no jurisdiction to order eviction even on his finding that the defendants were not the tenants. On April 27, 1962, within a week of the making of the order of eviction, the Tahasildar purported to execute his order through his Revenue Inspector. A Mahazar was prepared by the Revenue Inspector to the effect that possession has been given to the plaintiff. Against the said order of eviction, the defendants preferred an appeal before the Assistant Commissioner, Ramanagar Sub-Division, who allowed the appeal and set aside the order made by the Tahasildar, holding that the defendants were the tenants and that the proceeding before the Tahasildar had been stayed by the Act before the order of eviction was made.</h4><h4 style=\"text-align: justify;\">(4) When the appeal preferred by the defendants was pending before the Assistant Commissioner, the plaintiff brought the suit on June 12, 1962 for a permanent injunction against the defendants, alleging that he had secured possession of the suit lands pursuant to the order of eviction made by the Tahasildar and that the defendants were interfering with his lawful possession. The defendants, after entering appearance, filed their written statement contending, inter alia, that their possession had not been disturbed by the alleged delivery effected by the Revenue Inspector, that the alleged delivery was a sham or paper delivery, and that in fact, the defendants were in actual possession cultivating the suit lands as tenants. By the time the Munsiff had heard and disposed of the application for temporary injunction, the Assistant Commissioner had set aside the order of eviction made by the Tahasildar, in execution of which the plaintiff purported to obtain delivery.</h4><h4 style=\"text-align: justify;\">The Munsiff was not satisfied that there was a prima facie case made out in favour of the plaintiff for grant of the injunction and, therefore, he dissolved the ex parte order of interim injunction. The Additional Civil Judge, who heard the appeal, did not disagree with the conclusion of the Munsiff that the defendants were the tenants of the suit lands, that the order of eviction made by the Tahasildar was one made without jurisdiction, and that the said order had been set aside on appeal, but from certain observations made by the Assistant Commissioner in his order, the Civil Judge came to the conclusion that there was prima facie evidence that the plaintiff had obtained delivery of possession pursuant to the order of eviction passed by the Tahasildar, and therefore, entitled to a temporary injunction to protect his possession.</h4><h4 style=\"text-align: justify;\">(5) It was urged by the learned counsel for the petitioners, that the Additional Civil Judge was not right in interfering with the discretion exercised by the Munsiff when there was no error calling for interference, and this is a case where the appellate court has exercised its jurisdiction with material irregularity, calling for interference in revision. But it was contended by the learned counsel for the plaintiff-respondent, that the delivery Mahazar prepared by the Revenue Inspector is prima facie evidence of the factum of possession having been given to the plaintiff; although the proceedings before the Tahasildar were without jurisdiction and that order had been set aside on appeal, until possession is restored to the defendants by due process of law, the plaintiff is entitled to have his possession protected.</h4><h4 style=\"text-align: justify;\">(6) An appeal lies from the order of a trial Judge granting or refusing to grant an interim injunction, but what the court of appeal has to consider is simply whether or not the Judge who dealt with the matter has properly exercised the discretion which he undoubtedly possesses. The question for the decision of the Civil Judge, who heard the appeal, was whether the Munsiff did not properly exercise his judicial discretion. The appellate Judge is not to approach the case as if he were the trial Judge. A good percentage of suits in this State are for the relief of permanent injunction, and in every one of such suits, there is an application for interim injunction; trial Judges in the majority of the cases, as a matter of course, grant orders of temporary injunctions and cases of refusal are rare. Those orders granting or refusing the interim relief are taken up in appeals and the appellate courts go into the merits of the contentions in the suit as if they are trying the issue as to which of the parties is in possession. The question which they consider is not whether or not the trial Judge has properly exercised his judicial discretion.</h4><h4 style=\"text-align: justify;\">(7) The granting or refusing of injunctions is a matter resting in the sound discretion with the trial court and consequently no injunction will be granted whenever it will operate oppressively, or inequitably, or contrary to the real justice of the case. In exercising the discretionary power, the courts should be guided by the following guiding principles. There is no power which is more delicate, which requires greater caution, deliberation, and sound discretion, or is more dangerous in a doubtful case, than the issuing an injunction. It is the strong arm of equity, that never ought to be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. The right must be clear, the injury impending or threatened, so as to be averted only by the protecting preventive process of injunction. But that will not be awarded in doubtful cases, or new ones not coming within well-established principles; for if it issues erroneously, an irreparable injury is inflicted for which there can be no redress, it being the act of a court, not of the party who prays for it. It will be refused till the courts are satisfied that the case before them is of a right about to be destroyed, irreparably injured or great and lasting injury about to be done by an illegal act. In such a case the court owes it to its suitors and its own principles to administer the only remedy which the law allows to prevent the commission of such act. The discretionary power must be exercised with extreme caution and applied only in very clear cases; otherwise, instead of becoming an instrument to promote the public as well as private welfare, it may become a means of an extensive and perhaps an irreparable injustice.” (1) Story’s Equity Jurisprudence (14th Edn.) Vol. II, pages 639-640.</h4><h4 style=\"text-align: justify;\">The rule regarding the caution to be observed by courts and the necessarily for a clear cause for granting the relief of injunction has been succinctly stated in the American Jurisprudence as follows:–</h4><h4 style=\"text-align: justify;\">“Caution in Granting; Necessity of Clear Case: The extraordinary character of the Injunctive remedy and the danger that its use in improper cases may result in serious loss or inconvenience to an innocent party require that the power to issue it should not be lightly indulged in, but should be exercised sparingly and cautiously only after thoughtful deliberation, and with a full conviction on the part of the court of its urgent necessity. In other words, the relief should be awarded only in clear cases, reasonably free from doubt, and, when necessary, to prevent great and irreparable injury. The Court should therefore be guided by the fact that the burden of proof rests upon the complaint to establish the material allegations entitling him to relief.” (2) 28 American Jurisprudence page 217.</h4><h4 style=\"text-align: justify;\">Besides the above, there are certain equitable principles also which govern the Courts in granting or withholding of the relief of injunction. One of the main considerations is the fairness of good conduct of the party invoking the aid of the Court. The Court denies the relief to a suitor who is himself guilty of misconduct in respect of the matter in controversy. It is well-known maxim of equity that “He who comes into equity must come with clean hands,” or as otherwise expressed, “He that hath committed inequity shall not have equity”. The wrong conduct of the plaintiff in the particular matter or transaction with respect to which he seeks injunctive relief precludes him from obtaining such relief. Injunction will not be granted in aid of a possession secured by stratagem or trick.</h4><h4 style=\"text-align: justify;\">(8) The question for determination is whether the trial court did not properly exercise its discretion in accordance with the above principles so as to merit interference by the appellate court. The undisputed facts, as started above, are that the defendants are the tenants of the land, that the proceedings before the Tahasildar instituted by the plaintiff for their eviction was stayed by the Act long before the eviction order came to be passed, that the Tahasildar had no jurisdiction to order eviction even on his finding that the defendants were not the tenants, that the Revenue Inspector who executed the order also had no jurisdiction to give delivery by reason of the prohibition imposed by the Act and further, the order of eviction had been set aside by the Assistant Commissioner on appeal. The foundation of the plaintiff’s case is the delivery mahazar prepared by the Revenue Inspector; that mahazar was prepared without notice to the defendants and behind their back.</h4><h4 style=\"text-align: justify;\">At the time of the alleged delivery, which was in April, there could not be any standing crops on the land; disputes concerning possession started only at the commencement of the cultivation season, when the defendants proceeded to cultivate the lands. The contention of defendants in the suit was that the delivery mahazar was a sham delivery and that they were not dispossessed. The trial judge was not satisfied that the defendants had been dispossessed. On these facts, he refused to grant the temporary injunction prayed for. The Civil Judge, who heard the appeal, did not differ from the fact found by the trial judge, except that he inferred that the defendants had admitted delivery of possession to the plaintiff by the Revenue Inspector. That inference was not justified, in my opinion, from a perusal of the order of the Assistant Commissioner. It is clearly stated in the said order that the Assistant Commissioner was not concerned with the facts of the execution; having so stated, he made the certain irrelevant observation in answer to certain arguments apparently advanced before him.</h4><h4 style=\"text-align: justify;\">When the Assistant Commissioner was not concerned with the facts of the execution, there was no question of his giving any finding on the question of his giving any finding there was no question of his giving any finding on the question whether the defendants had been dispossessed or not. Even assuming that the plaintiff had managed to dispossess the defendants, since the means by which he is alleged to have obtained possession is by illegal means, he is not entitled to the aid of the court to protect his possession. By granting the injunction, what the Civil Judge did was to lend the aid to the court to proceed possession secured in proceedings continued without jurisdiction. The plaintiff is not a person who has come to court with clean hands, and no court of equity shall aid such a person. Therefore, I am clearly of the view that the Civil Judge was not justified in interfering with the order of the Munsiff, who has exercised his discretion properly.</h4><h4 style=\"text-align: justify;\">(9) The conduct of the Tahasildar of Magadi calls for serious comment; I am rather surprised that the Assistant Commissioner who had occasion to hear the appeal against his order did not deem it fit to take against the said Tahasildar. The Tahasildar cannot pretend that he was ignorant of the provisions of the Act when it had been published in the official Gazette about four months prior to the making of the order of eviction. When it was not the case of either party, the Tahasildar gave a finding that the defendants were not the tenants thinking that he could thereby circumvent the Act; but even on the assumption that the defendants were not the tenants, he had no jurisdiction under the Mysore Tenancy Act to order eviction of persons who are not tenants. To forestall any order to stay that may be obtained by preferring an appeal, he saw that his order was executed with undue haste before the order of stay was communicated.</h4><h4 style=\"text-align: justify;\">From the facts and circumstances of the case, it is not unreasonable to infer that the Tahasildar has misused his official position to help the plaintiff to evict the defendants which could not have been done under the law in force. What was the consideration which made the Tahasildar to go out of his way to help the plaintiff? That is a matter for enquiry by the appropriate authorities. If officials of the Government entrusted with the duty of enforcement of laws defy the laws with a view to help individuals out of dishonest with a view to help individuals out of dishonest motives and the higher authorities do not take any action against them, there will be no rule of law and the administration will forfeit the confidence of the public. It is for the Government to enquire into the conduct of the concerned Tahasildar and decide what is the appropriate action to take.</h4><h4 style=\"text-align: justify;\">(10) For the above reasons, this revision petition is allowed, the order of the Civil Judge is set aside, and the order of the Munsiff is restored. The respondent will pay the costs of the petitioners in this court as also in the courts below.</h4><h4 style=\"text-align: justify;\">(11) Let a copy of this order be communicated to the Chief Secretary to the Government of Mysore, for the information of the Government.</h4><h4 style=\"text-align: justify;\">(12) Revision allowed.</h4><div style=\"text-align: justify;\"><br></div><h4 style=\"text-align: justify;\"><br></h4>', '68701241a32b287680dbe2bb59aba21f.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1965-01-05', 1, '', '', '2021-02-22 23:17:09', '2021-02-23 00:34:53'),
(495, 'WEgfayQUNBeVczFnZlMBRdzwv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'IPC. Section 196. Prosecution for offences against the State and criminal conspiracy to commit such offence. Prior sanction of the Government NOT necessary to refer the complaint for investigation. Karnataka High Court ', '<h4>A. Alam Pasha vs Anant Kumar Hegde. Criminal Petition 8733/2017 decided on 10 February 2021. Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/367189/1/CRLP8733-17-10-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/367189/1/CRLP8733-17-10-02-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Facts:</span> The petitioner&nbsp; presented&nbsp; a&nbsp; complaint&nbsp; before&nbsp; the&nbsp; X Addl. Chief Metropolitan Magistrate at Bangalore under section 2(d) read with section 156(3) of Cr.P.C., seeking to refer the same to the jurisdictional Indiranagar Police Station, Bangalore, for investigation under section 156(3) of Cr.P.C. On receiving the complaint, learned X Addl. Chief Metropolitan Magistrate, Bangalore, passed the impugned order rejecting the complaint on the ground that, in view of the provisions under section 196(1) and (1-A) of Cr.P.C., there is a bar for taking cognizance of the offences punishable under sections 153-A, 295-A, 153-B and 505(2) of IPC without previous sanction from the Government.<br><span style=\"background-color: rgb(255, 255, 0);\">Issue involved: </span>The question that arises for consideration is:</h4><h4 style=\"margin-left: 25px;\">“Whether section 196(1) and 196(1-A) of Cr.P.C. debars the Court from referring the complaint for investigation under section 156(3) Cr.P.C. in respect of offences enumerated therein, without prior sanction of the competent Government?<br></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Discussion: </span>7. The sole ground on which the Trial Court has dismissed the complaint is that the previous sanction of the Central Government or State Government, as the case may be, is necessary to take cognizance of the offences under sections 153-A, 295-A, 153-B and 505(2) of IPC, in view of the mandate contained in section 196(1) and (1-A) of Cr.P.C. unmindful of the fact that Section 196(1) and (1-A) of Cr.P.C. bars the Court from taking cognizance of the offence and not from directing investigation under section 156(3) of Cr.P.C. The section reads as under:-</h4><h4 style=\"margin-left: 25px;\">“Section 196. Prosecution for offences against the State and for criminal conspiracy to commit such offence. –<br>(1) No Court shall take cognizance of-<br>(a) any offence punishable under Chapter VI or under section 153A, (section 295-A or sub- section (1) of section 505) of the Indian Penal Code, 1860 (45 of 1860); or<br>(b) a criminal conspiracy to commit such offence; or<br>(c) any such abetment, as is described in section 108A of the Indian Penal Code (45 of 1860),<br>except with the previous sanction of the Central Government or of the State Government.<br>(1A) No Court shall take cognizance of-<br>(a)<span style=\"white-space:pre\">	</span>any offence punishable under section 153B or sub- section (2) or sub- section (3) of section 505 of the Indian Penal Code (45 of 1860 ); or<br>(b)<span style=\"white-space:pre\">	</span>a criminal conspiracy to commit such offence,<br>except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.”</h4><h4>The section does not state that the bar under section 196(1) and (1-A) operates at the stage of referring the complaint for investigation under section 156(3) of Cr.P.C. The Trial Court appears to have held a contrary view by misreading the decisions in Ramdev Food Products Pvt Ltd vs State of Gujrat (2015) 6 SCC 439 and Anil Kumar vs M.K. Aiyappa (2013) 10 SCC 705. Undisputedly, these decisions were&nbsp; rendered in the context of section 19 of the Prevention of Corruption Act. No ratio is laid down in the said decisions to the effect that even at the stage of referring the complaint for investigation under section 156(3) of Cr.P.C., in every case the previous sanction of the Government is required at the pre- cognizance stage. On the other hand, it is explained therein that the Magistrate while issuing direction under section 156(3) of Cr.P.C., is required to apply his mind to the facts of the case. It is laid down in the above decision that it is only when the learned Magistrate applies his mind, it can be said that he has taken cognizance of the alleged offences. When the learned Magistrate has not applied his mind, it cannot be said that he has taken cognizance of the alleged offences.<br><span style=\"background-color: rgb(255, 255, 0);\">Held:</span> 13. From the above enunciation, it is clear that the need to obtain the sanction from the competent Government would arise only after completion of investigation at the stage of taking cognizance by the Magistrate or the Court and not at the pre- cognizance stage.<br></h4><p><br></p>', '743a2f8454e06457164fb3aad6657319.jpg', '0c2d18d58352b958a429e6fe640bf3a0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-10', 1, '', '', '2021-02-23 03:10:23', '2021-02-23 03:21:29'),
(496, 'yJM6k01Q8W1uhNLBt1RZwDzBn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Compromise Decree which does not create right in the property for the first time and only recognizes pre-existing right does NOT require registration. Supreme Court. 22 Feb 2021', '<h4>Khushi Ram and others vs Nawal Singh and others. Civil Appeal 5167 of 2010 decided on 22 February 2021. Justice Ashok Bhushan and Justice R. Sughash Reddy. Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2009/20504/20504_2009_37_1501_26355_Judgement_22-Feb-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2009/20504/20504_2009_37_1501_26355_Judgement_22-Feb-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Statutes and case laws referred to</span>: Section 17 of the Indian Registration Act, 1908, Bhoop Singh Vs. Ram Singh Major and Ors., (1995) 5 SCC 709, Civil Appeal No.890 of 2008 – Mata Deen Vs. Madan Lal & Ors., Som Dev and Ors. Vs. Rati Ram and Anr. (2006) 10 SCC 788, K.Raghunandan and Ors. Vs. Ali Hussain Sabir and Ors., (2008) 13 SCC 102, Mohammade Yusuf & Ors. Vs. Rajkumar & Ors., 2020(3) SCALE 146..</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Ratio of the case laws .</span> If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs 100 or upwards in favour of any party to the suit the decree or order would require registration. Thus, indisputably, if the consent terms create a right for the first time as contradistinguished from recognition of a right, registration thereof would be required, if the value of the property is Rs 100 and upwards.”</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Held:</span> 20. This Court held that since the decree which was sought to be exhibited was with regard to the property which was subject matter of suit, hence, was not covered by exclusionary clause of Section 17(2) (vi) and decree did not require registration. The issue in the present case is squarely covered by the above judgment. We, thus, conclude that in view of the fact that the consent decree dated 19.08.1991 relate to the subject matter of the suit, hence it was not required to be registered under Section 17(2) (vi) and was covered by exclusionary clause. </h4>', 'ec01e939763881484acc281196fada20.png', 'ee11a88cd9cfe55d662076f9e1725f1c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-22', 1, '', '', '2021-02-23 04:03:35', '2021-02-23 04:08:48'),
(497, '58eIFBS2yAIb7JUe1gRC3QD65', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Clarification regarding unregistered and notarised General Power of Attorneys in the light of  Rajni Tandon vs Dulal Ranjan Ghosh Dastidar and Suraj Lamp vs State of Haryana. ', '<h4>1. After the judgment in Rajni Tandon v. Dulal Ranjan Ghosh Dastidar (2009) 14 SCC 782 was published on Daksha Legal website many learned Advocates expressed the doubt as to whether this judgment still a good law in view of the subsequent in Suraj Lamp &amp; Industries (P) Ltd. vs State of Haryana, (2012) 1 SCC 656. Please note while publishing the judgment in Rajni Tandon, I had made a short note. However, in view of the doubts expressed by the learned advocates, this clarification is given.</h4><h4>2. At the outset, please note that Suraj Lamp speaks about unregistered power of attorney in paragraphs 3 and 27 as follows;</h4><h4 style=\"margin-left: 25px;\"><i>3. These transactions are not to be confused or equated with genuine transactions where the owner of a property grants a power of attorney in favour of a family member or friend to manage or sell his property, as he is not able to manage the property or execute the sale, personally. These are transactions, where a purchaser pays the full price, but instead of getting a deed of conveyance gets an SA/GPA/will as a mode of transfer, either at the instance of the vendor or at his own instance.</i></h4><h4 style=\"margin-left: 25px;\"><i>27. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a power of attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding “SA/GPA/will transactions” are not intended to apply to such bona fide/genuine transactions.</i></h4><h4>3. Suraj Lamp primarily dealt with power of attorney under which \"right is created for consideration\" which is referable to Section 17 of the Registration Act. The said Section as we know deals with, inter alia, instruments of gift of immovable property and other non-testamentary instruments which \"purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property\". When a \"right is created under the GPA in respect of immovable property\" it certainly requires registration.&nbsp;</h4><h4>4 Suraj Lamp dealt with cases SA/GPA/Will transactions where the vendor or person claiming to be the owner receives the agreed consideration, delivers possession of the property to the purchaser and executes the following documents or variations thereof:</h4><h4 style=\"margin-left: 25px;\"><i>(a) An agreement of sale by the vendor in favour of the purchaser confirming the terms of sale, delivery of possession and payment of full consideration and undertaking to execute any document as and when required in future.</i></h4><h4 style=\"margin-left: 25px;\"><i>or</i></h4><h4 style=\"margin-left: 25px;\"><i>An agreement of sale agreeing to sell the property, with a separate affidavit confirming receipt of full price and delivery of possession and undertaking to execute the sale deed whenever required.</i></h4><h4 style=\"margin-left: 25px;\"><i>(b) An irrevocable general power of attorney by the vendor in favour of the purchaser or his nominee authorising him to manage, deal with and dispose of the property without reference to the vendor.</i></h4><h4 style=\"margin-left: 25px;\"><i>or</i></h4><h4 style=\"margin-left: 25px;\"><i>A general power of attorney by the vendor in favour of the purchaser or his nominee authorising the attorney-holder to sell or transfer the property and a special power of attorney to manage the property.</i></h4><h4 style=\"margin-left: 25px;\"><i>(c) A will bequeathing the property to the purchaser (as a safeguard against the consequences of death of the vendor before transfer is effected).</i></h4><h4>5. However, the judgment Rajni Tandon v. Dulal Ranjan Ghosh Dastidar (2009) 14 SCC 782&nbsp; has nothing to do with Section 17 of the Registration Act. It deals with Section 32 of the Registration Act. This is clear from paragraph 19, 20. 24, 26 and 33 which read thus;</h4><h4 style=\"margin-left: 25px;\"><i>19. In view of the aforesaid situation, the issue that falls for our consideration is whether a person who executes a document under the terms of the power of attorney, is, insofar as the registration office is concerned, the actual executant of the document and is entitled under Section 32(a) to present it for registration and get it registered.</i></h4><h4 style=\"margin-left: 25px;\"><i>20. Part VI of the Act deals with “presentation of documents for registration”. Sections 32 and 33 of the Act which are in Part VI deal with “persons to present documents for registration” and “power of attorney recognisable for purposes of Section 32” respectively.&nbsp;</i></h4><h4 style=\"margin-left: 25px;\"><i>24. The words “executed and authenticated in manner hereinafter mentioned” in Section 32(c) would mean the procedure specified in Section 33. This is clear from the opening words of Section 33 which reads “for the purposes of Section 32, the following power of attorney shall alone be recognised”. Section 32 refers to documents presented for registration by a holder of “power of attorney” in clause (c) and it therefore follows that the procedure specified under Section 33 would be attracted where a document is presented by a person holding “powers of attorney” of the persons mentioned in clause (a) of Section 32.</i></h4><h4 style=\"margin-left: 25px;\"><i>26. It is important to bear in mind that one of the categories of persons who are eligible to present documents before the registration office in terms of Section 32 of the Act is the “person executing” the document. The expression “person executing” used in Section 32 of the Act, can only refer to the person who actually signs or marks the document in token of execution, whether for himself or on behalf of some other person. Thus, “person executing” as used in Section 32(a) of the Act signifies the person actually executing the document and includes a principal who executes by means of an agent. Where a person holds a power of attorney which authorises him to execute a document as agent for someone else, and he executes a document under the terms of the power of attorney, he is, so far as the registration office is concerned, the actual executant of the document and is entitled under Section 32(a) to present it for registration and get it registered.</i></h4><h4 style=\"margin-left: 25px;\"><i>33. Where a deed is executed by an agent for a principal and the same agent signs, appears and presents the deed or admits execution before the registering officer, that is not a case of presentation under Section 32(c) of the Act. As mentioned earlier the provisions of Section 33 will come into play only in cases where presentation is in terms of Section 32(c) of the Act. In other words, only in cases where the person(s) signing the document cannot present the document before the registering officer and gives a power of attorney to another to present the document that the provisions of Section 33 get attracted. It is only in such a case, that the said power of attorney has to be necessarily executed and authenticated in the manner provided under Section 33(1)(a) of the Act.</i></h4><h4>Hence, there is no conflict between Rajni Tandon v. Dulal Ranjan Ghosh Dastidar (2009) 14 SCC 782 and Suraj Lamp &amp; Industries (P) Ltd. vs State of Haryana, (2012) 1 SCC 656. Both deal with different aspect. Please also note, the judgment in Rajni Tandon is NOT overruled in Suraj Lamp. The reasons are obvious. In the first case, the GPA holder does NOT acquire any right over the property or the GPA is NOT for consideration. He merely presents the document for registration on behalf of the owner. In the second case, the GPA holder gets right over the property for consideration and the same requires registration.&nbsp;</h4><h4><br></h4><h4><br></h4>', '50bac1714706f260cc8f93a1bed7d817.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-23', 1, '', '', '2021-02-23 20:14:11', '2021-02-23 20:14:11');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(498, 'UZrP2t3Ria7GDrrdZ8Go9S6px', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suraj Lamp and Industries Pvt Ltd vs State of Haryana. Sale of property by unregistered Power of Attorney Will etc to avoid stamp duty. Such transactions are invalid. Supreme Court. 2012-1 SCC-656 ', '<h4><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 0);\"><i><b>Full Judgment below </b></i></span></div></h4><table class=\"table table-bordered\"><tbody><tr><td><h4 style=\"color: rgb(0, 0, 0);\"><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\"><b>Suraj Lamp and Industries Pvt Ltd vs State of Haryana. </b></span></div><div style=\"text-align: center;\"><span style=\"font-size: 1.3125rem;\"><b>Special Leave Petition 13917 of 2009 decided on 11 October 2011. </b></span></div><div style=\"text-align: center;\"><b><span style=\"font-size: 1.3125rem;\">Justice R.V. Raveendran, Justice A.K. Patnaik and Justice H.L. Gokhale</span></b></div><div style=\"text-align: center;\"><b><span style=\"font-size: 1.3125rem;\">Reported in (2012)1 SCC-656<br></span><br></b></div></h4><p style=\"text-align: center; \"><b><br></b></p></td></tr></tbody></table><h4><div style=\"text-align: justify;\"><b><span style=\"font-size: 1.3125rem;\">Justice R.V. Raveendran, J.— By an earlier order dated 15-5-2009 in Suraj Lamp & Industries (P) Ltd. (1) v. State of Haryana [(2009) 7 SCC 363 : (2009) 3 SCC (Civ) 126] , we had referred to the ill-effects of what is known as general power of attorney sales (for short “GPA sales”) or sale agreement/general power of attorney/will transfers (for short “SA/GPA/will transfers”). Both the descriptions are misnomers as there cannot be a sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and will. As noticed in the earlier order, these kinds of transactions were evolved to avoid prohibitions/conditions regarding certain transfers, to avoid payment of stamp duty and registration charges on deeds of conveyance, to avoid payment of capital gains on transfers, to invest unaccounted for money (black money) and to avoid payment of “unearned increases” due to development authorities, on transfer.</span><br></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>2. The modus operandi in such SA/GPA/will transactions is for the vendor or person claiming to be the owner to receive the agreed consideration, deliver possession of the property to the purchaser and execute the following documents or variations thereof:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>(a) An agreement of sale by the vendor in favour of the purchaser confirming the terms of sale, delivery of possession and payment of full consideration and undertaking to execute any document as and when required in future.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>or</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>An agreement of sale agreeing to sell the property, with a separate affidavit confirming receipt of full price and delivery of possession and undertaking to execute the sale deed whenever required.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>(b) An irrevocable general power of attorney by the vendor in favour of the purchaser or his nominee authorising him to manage, deal with and dispose of the property without reference to the vendor.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>or</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>A general power of attorney by the vendor in favour of the purchaser or his nominee authorising the attorney-holder to sell or transfer the property and a special power of attorney to manage the property.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>(c) A will bequeathing the property to the purchaser (as a safeguard against the consequences of death of the vendor before transfer is effected).</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>This extract is taken from Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana, (2012) 1 SCC 656 : (2012) 1 SCC (Civ) 351 at page 660</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>3. These transactions are not to be confused or equated with genuine transactions where the owner of a property grants a power of attorney in favour of a family member or friend to manage or sell his property, as he is not able to manage the property or execute the sale, personally. These are transactions, where a purchaser pays the full price, but instead of getting a deed of conveyance gets an SA/GPA/will as a mode of transfer, either at the instance of the vendor or at his own instance.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Ill-effects of SA/GPA/will transactions</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>4. The earlier order dated 15-5-2009 [(2009) 7 SCC 363 : (2009) 3 SCC (Civ) 126] , noted the ill-effects of such SA/GPA/will transactions (that is, generation of black money, growth of land mafia and criminalisation of civil disputes) as under: (SCC pp. 368-69, paras 19-21)</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>“19. Recourse to ‘SA/GPA/will’ transactions is taken in regard to freehold properties, even when there is no bar or prohibition regarding transfer or conveyance of such property, by the following categories of persons:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>(a) Vendors with imperfect title who cannot or do not want to execute registered deeds of conveyance.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>(b) Purchasers who want to invest undisclosed wealth/income in immovable properties without any public record of the transactions. The process enables them to hold any number of properties without disclosing them as assets held.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>(c) Purchasers who want to avoid the payment of stamp duty and registration charges either deliberately or on wrong advice. Persons who deal in real estate resort to these methods to avoid multiple stamp duties/registration fees so as to increase their profit margin.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>20. Whatever be the intention, the consequences of SA/GPA/will transactions are disturbing and far-reaching, adversely affecting the economy, civil society and law and order. Firstly, it enables large-scale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such revenue to the Government and the public. Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/income, thereby encouraging circulation of black money and corruption.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>21. This kind of transactions have disastrous collateral effects also. For example, when the market value increases, many vendors (who effected power of attorney sales without registration) are tempted to resell the property taking advantage of the fact that there is no registered instrument or record in any public office thereby cheating the purchaser. When the purchaser under such ‘power-of-attorney sales’ comes to know about the vendor\'s action, he invariably tries to take the help of musclemen to ‘sort out’ the issue and protect his rights. On the other hand, real estate mafia many a time purchase properties which are already subject to power-of-attorney sale and then threaten the previous ‘power-of-attorney sale’ purchasers from asserting their rights. Either way, such power-of-attorney sales indirectly lead to growth of real estate mafia and criminalisation of real estate transactions.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>It also makes title verification and certification of title, which is an integral part of orderly conduct of transactions relating to immovable property, difficult, if not impossible, giving nightmares to bona fide purchasers wanting to own a property with an assurance of good and marketable title.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>5. This Court had, therefore, requested the learned Solicitor General to give suggestions on behalf of the Union of India. This Court also directed notice to the States of Delhi, Haryana, Punjab and Uttar Pradesh to give their views on the matter. The four States have responded and confirmed that SA/GPA/will transfers required to be discouraged as they lead to loss of revenue (stamp duty) and increase in litigations due to defective title. They also referred to some measures taken in that behalf. The measures differ from State to State. In general, the measures are: (i) to amend the Registration Act, 1908 by Amendment Act 48 of 2001 with effect from 24-9-2001 requiring documents containing contract to transfer for consideration (agreements of sale, etc.) relating to any immovable property for the purpose of Section 53-A of the Act, shall be registered; and (ii) to amend the stamp laws subjecting agreements of sale with delivery of possession and/or irrevocable powers of attorney in favour of non-family members authorising sale, to the same stamp duty as deed of conveyance.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>7. The State of Haryana has however taken a further positive step by reducing the stamp duty on deeds of conveyance from 12.5% to 5%. A high rate of stamp duty acts as a damper for execution of deeds of conveyance for full value, and encourages SA/GPA/will transfers. When parties resort to SA/GPA/will transfers, the adverse effect is not only loss of revenue (stamp duty and registration charges) but the greater danger of generation of “black” money. Reducing the stamp duty on conveyance to realistic levels will encourage the public to disclose the maximum sale value and have the sale deeds registered. Though the reduction of the stamp duty, may result in an immediate reduction in the revenue by way of stamp duty, in the long run it will be advantageous for two reasons: (i) parties will be encouraged to execute registered deeds of conveyance/sale deeds without any undervaluation, instead of entering into SA/GPA/will transactions; and (ii) more and more sale transactions will be done by way of duly registered sale deeds, disclosing the entire sale consideration thereby reducing the generation of black money to a large extent.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>8. When high stamp duty is prevalent, there is a tendency to undervalue documents, even where sale deeds are executed. When properties are undervalued, a large part of the sale price changes hand by way of cash thereby generating “black” money. Even when the State Governments take action to prevent undervaluation, it only results in the recovery of deficit stamp duty and registration charges with reference to the market value, but the actual sale consideration remains unaltered. If a property worth 5 millions is sold for 2 millions, the undervaluation rules may enable the State Government to initiate proceedings so as to ensure that the deficit stamp duty and registration charges are recovered in respect of the difference of 3 millions. But the sale price remains 2 millions and the black money of 3 millions generated by the undervalued sale transaction, remains undisturbed.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>9. In this background, we will examine the validity and legality of SA/GPA/will transactions. We have heard learned Mr Gopal Subramanium, amicus curiae and noted the views of the Government of NCT of Delhi, Government of Haryana, Government of Punjab and Government of Uttar Pradesh who have filed their submissions in the form of affidavits.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Relevant legal provisions</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>10. Section 5 of the Transfer of Property Act, 1882 (“the TP Act”, for short) defines “transfer of property” as under:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>“5. ‘Transfer of property’ defined.—In the following sections ‘transfer of property’ means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself or to himself and one or more other living persons and ‘to transfer property’ is to perform such act.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>11. Section 54 of the TP Act defines “sales” thus:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>“54.‘Sale’ defined.—‘Sale’ is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Sale how made.—Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Contract for sale.—A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>It does not, of itself, create any interest in or charge on such property.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>12. Section 53-A of the TP Act defines “part-performance” thus:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>“53-A.Part performance.—Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract,</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>and the transferee has performed or is willing to perform his part of the contract,</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>then, notwithstanding that, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>13. We may next refer to the relevant provisions of the Stamp Act, 1899 [ Note: Stamp laws may vary from State to State, though generally the provisions may be similar] . Section 27 of the Stamp Act, 1899 casts upon the party, liable to pay stamp duty, an obligation to set forth in the instrument all facts and circumstances which affect the chargeability of duty on that instrument. Section 23 prescribes stamp duty on “conveyance”. In many States appropriate amendments have been made whereby agreements of sale acknowledging delivery of possession or power of attorney authorising the attorney to “sell any immovable property” are charged with the same duty as leviable on conveyance.</b></span></div><div style=\"text-align: justify;\"><b><br></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>14. Section 17 of the Registration Act, 1908 makes a deed of conveyance compulsorily registerable. We extract below the relevant portions of Section 17:</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>“17.Documents of which registration is compulsory.—(1) The following documents shall be registered, namely—</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>***</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>***</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>(1-A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53-A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws Amendment Act, 2001 and, if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said Section 53-A.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Advantages of registration</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>15. In the earlier order dated 15-5-2009 [(2009) 7 SCC 363 : (2009) 3 SCC (Civ) 126] , the objects and benefits of registration were explained and we extract them for ready reference: (SCC p. 367, paras 15-18)</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>“15. The Registration Act, 1908 was enacted with the intention of providing orderliness, discipline and public notice in regard to transactions relating to immovable property and protection from fraud and forgery of documents of transfer. This is achieved by requiring compulsory registration of certain types of documents and providing for consequences of non-registration.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>16. Section 17 of the Registration Act clearly provides that any document (other than testamentary instruments) which purports or operates to create, declare, assign, limit or extinguish whether in present or in future ‘any right, title or interest’ whether vested or contingent of the value of Rs 100 and upwards to or in immovable property.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>17. Section 49 of the said Act provides that no document required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property, unless it has been registered. Registration of a document gives notice to the world that such a document has been executed.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>18. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, as to the nature and extent of the rights which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person(s) presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title to the property may be affected and secure extracts/copies duly certified.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Registration of documents makes the process of verification and certification of title easier and simpler. It reduces disputes and litigations to a large extent.</b></span></div><div style=\"text-align: justify;\"><b><br></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Scope of an agreement of sale</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>16. Section 54 of the TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam [(1977) 3 SCC 247] observed: (SCC pp. 254-55, paras 32-33 & 37)</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>“32. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. (See Ram Baran Prasad v. Ram Mohit Hazra [AIR 1967 SC 744 : (1967) 1 SCR 293] .) The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>33. In India, the word ‘transfer’ is defined with reference to the word ‘convey’. … The word ‘conveys’ in Section 5 of the Transfer of Property Act is used in the wider sense of conveying ownership.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>***</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>37. … that only on execution of conveyance, ownership passes from one party to another….”</b></span></div><div style=\"text-align: justify;\"><b><br></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>17. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [(2004) 8 SCC 614] this Court held: (SCC p. 619, para 10)</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>“10. Protection provided under Section 53-A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed into service against a third party.”</b></span></div><div style=\"text-align: justify;\"><b><br></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>18. It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject-matter.</b></span></div><div style=\"text-align: justify;\"><b><br></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Scope of power of attorney</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>20. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorises the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1-A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee.</b></span></div><div style=\"text-align: justify;\"><b><br></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>21. In State of Rajasthan v. Basant Nahata [(2005) 12 SCC 77] this Court held: (SCC pp. 90 & 101, paras 13 & 52)</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>“13. A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.</b></span></div><div style=\"text-align: justify;\"><b><br></b></div><div style=\"text-align: justify;\"><b><br></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>52. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers of Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.”</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>An attorney-holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.</b></span></div><div style=\"text-align: justify;\"><b><br></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Scope of will</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>22. A will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivos. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the lifetime of the testator. It is said that so long as the testator is alive, a will is not worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the will stands revoked. (See Sections 69 and 70 of the Succession Act, 1925.) Registration of a will does not make it any more effective.</b></span></div><div style=\"text-align: justify;\"><b><br></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>Conclusion</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>23. Therefore, an SA/GPA/will transaction does not convey any title nor creates any interest in an immovable property. The observations by the Delhi High Court in Asha M. Jain v. Canara Bank [(2001) 94 DLT 841] , that the “concept of power-of-attorney sales has been recognised as a mode of transaction” when dealing with transactions by way of SA/GPA/will are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/will transactions are some kind of a recognised or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognise or accept SA/GPA/will transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.</b></span></div><div style=\"text-align: justify;\"><b><br></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>24. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of “GPA sales” or “SA/GPA/will transfers” do not convey title and do not amount to transfer, nor can they be recognised or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognised as deeds of title, except to the limited extent of Section 53-A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in municipal or revenue records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/will transactions known as GPA sales.</b></span></div><div style=\"text-align: justify;\"><b><br></b></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>25. It has been submitted that making declaration that GPA sales and SA/GPA/will transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularise the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>26. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/will transactions are not “transfers” or “sales” and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreements of sale. Nothing prevents the affected parties from getting registered deeds of conveyance to complete their title. The said “SA/GPA/will transactions” may also be used to obtain specific performance or to defend possession under Section 53-A of the TP Act. If they are entered before this day, they may be relied upon to apply for regularisation of allotments/leases by development authorities. We make it clear that if the documents relating to “SA/GPA/will transactions” have been accepted/acted upon by DDA or other developmental authorities or by the municipal or Revenue Authorities to effect mutation, they need not be disturbed, merely on account of this decision.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>27. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a power of attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding “SA/GPA/will transactions” are not intended to apply to such bona fide/genuine transactions.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>28. We place on record our appreciation for the assistance rendered by Mr Gopal Subramanium, Senior Counsel, initially as Solicitor General and later as amicus curiae.</b></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b>29. As the issue relating to validity of SA/GPA/will has been dealt with by this order, what remains is the consideration of the special leave petition on its merits. List the special leave petition for final disposal.</b></span></div></h4>', '2218b8b7f6a0797a601177f2683026de.png', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2011-10-11', 1, '', '', '2021-02-23 20:35:37', '2021-02-23 21:00:37'),
(499, 'FAWoQOXlZLfmfu3z5vewi8RDF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Income Tax Act 1961. Company ceasing to exist on the day of passing assessment order as a result of its merger under the approved scheme of amalgamation.  Assessment order against such non-existent company is invalid. Karnataka High Court. 4 Feb 2021', '<h4 style=\"text-align: center;\"><br></h4><table class=\"table table-bordered\"><tbody><tr><td><p><br></p><h4 style=\"text-align: center;\"><font color=\"#000000\"><b>Pr. Commissioner of Income Tax and another vs M/s. Quantech Global Services Ltd.</b></font></h4><h4 style=\"text-align: center;\"><font color=\"#000000\"><b>Income Tax Appeal 439 of 2018 decided on 4 February 2021.</b></font></h4><h4 style=\"text-align: center;\"><font color=\"#000000\"><b>Justice Satish Chandra Sharma and Justice V.Srishananda </b></font></h4><div style=\"text-align: center;\"><br></div></td></tr></tbody></table><h4 style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><b><br><div style=\"text-align: left;\"><span style=\"font-size: 1.3125rem; font-weight: 500;\"><b>Judgment Link: </b></span><b style=\"font-size: 1.3125rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/367262/1/ITA439-18-04-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/367262/1/ITA439-18-04-02-2021.pdf</a><span style=\"font-size: 1.3125rem;\"> </span></b></div></b></span></h4><h4 style=\"text-align: left;\"><b><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs:</span> 4.<span style=\"font-size: 1.3125rem;\">The appeal was admitted on the following substantial questions of law:</span></b></h4><h4 style=\"margin-left: 25px;\"><div style=\"text-align: left; margin-left: 25px;\"><i><b><span style=\"font-size: 1.3125rem;\">“(a) Whether on the facts and in the circumstances of the case, the Tribunal is justified in law in holding that assessment order passed is invalid on the ground that assessee-company did not exist on the day of passing assessment order by following the decision of Delhi High Court in the case of M/s.Spice Informainment Ltd.”</span><span style=\"font-size: 1.3125rem;\"> </span></b></i></div><div style=\"text-align: left; margin-left: 25px;\"><i><b><span style=\"font-size: 1.3125rem;\">(b) </span><span style=\"font-size: 1.3125rem;\">Whether in the facts and circumstances of the case, the Tribunal is justified in law in holding that assessment order is invalid when name of the Company was Wipro Ltd. During Financial Year 2006-07 and the order of this Hon’ble Court  approving merger scheme  of the assessee was passed on 10/1/2008 and as such assessee-company existed during the financial year 2006-07, as such assessment order passed in the name of the assessee is proper and justified?</span></b></i></div><div style=\"text-align: left; margin-left: 25px;\"><i><b><span style=\"font-size: 1.3125rem;\">(c) </span><span style=\"font-size: 1.3125rem;\">Whether on the facts and in the circumstances of the case, the  Tribunal is justified in  law in holding that assessment order passed is invalid  on the ground that assessee-company did not exist on the day of passing assessment order by following the decision of Delhi High Court in the case of M/s. Spice Informainment Ltd. When merged company name has been shown in assessment order, TPO order, DRP order and ITAT order and along with assesseee-company and representative of the merged company contested the case on merits before all the authorities?”</span></b></i></div></h4><h4 style=\"text-align: left;\"><b>6. <span style=\"font-size: 1.3125rem;\">The Delhi High Court in the case of Spice Entertainment Ltd., vs. Commissioner of Service Tax, in ITA.No.475/2011, decided on 3.8.2011, in paragraphs 8 to 18 has held as under:</span></b></h4><h4 style=\"text-align: left; margin-left: 25px;\"><i><b>“8. A company incorporated under the Indian Companies Act is a juristic person. It takes its birth and gets life with the incorporation. It dies with  the  dissolution as per the provisions of the Companies Act. It  is trite law that on amalgamation, the amalgamating company ceases to exist in the eyes of law. This position  is even accepted by the Tribunal in para-14 of its order extracted above. Having regard this  consequence  provided in law, in number of cases, the Supreme Court held that assessment upon a dissolved company is impermissible as there is no provision in Income-Tax to make an assessment thereupon..................\" </b></i></h4><h4 style=\"text-align: left;\"><b>7. <span style=\"font-size: 1.3125rem;\">The Delhi High Court in the aforesaid case has held that an assessment order could not have been passed against a non-existent company. It is not a procedural irregularity but a jurisdictional defect as there cannot be any assessment against a dead person.  The  judgment delivered by the Delhi High Court  was subjected to judicial scrutiny before the Hon’ble Supreme Court and the Hon’ble Supreme Court in Civil appeal No.285/2014 (C.I.T New Delhi vs. M/s Spice Enfotainment Ltd.,) has dismissed the appeal by an order dated 2.11.2017.</span></b></h4><h4 style=\"text-align: left;\"><b>8.<span style=\"font-size: 1.3125rem;\">That the Hon’ble Supreme Court in the case of Principal Commissioner of Income Tax, New Delhi vs.  Maruti Suzuki India Limited, reported in 2019 SCC OnLine SC 928 has dealt with a similar issue and taking into account the judgment delivered in the case of Spice Enfotainment Ltd., in </span><span style=\"font-size: 1.3125rem;\">paragraphs 39, 40 and 41 the Hon’ble Supreme Court has held as under: </span></b></h4><h4 style=\"margin-left: 25px;\"><div style=\"text-align: left; margin-left: 25px;\"><span style=\"font-size: 1.3125rem;\"><i><b>“39. In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. the basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation, participation in the proceedings by the appellant in the circumstance cannot operate as an estoppel against law. This position now holds the field in view of the judgment  of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice  Enfotainment on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the decision in Spice Enfotainment.</b></i></span></div><div style=\"text-align: left; margin-left: 25px;\"><i><b><span style=\"font-size: 1.3125rem;\">40.</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">We find no reason to take a different view. There is a value which the Court must abide by in promoting the interest of certainty in tax litigation. The view which has been taken by this Court in relation to the respondent for AY 2011-12 must, in our view be adopted in respect of   the present appeal which relates to AY 2012-13.  Not  doing so will only result in uncertainty  and displacement  of settled expectations. There is a significant value which must attach to observing the requirement of consistency and certainty. Individual affairs are conducted and </span><span style=\"font-size: 1.3125rem;\">business decisions are made in the expectation of consistency, uniformity and certainty. To detract from those principles is neither expedient nor desirable.</span></b></i></div><div style=\"text-align: left; margin-left: 25px;\"><i><b><span style=\"font-size: 1.3125rem;\">41.</span><span style=\"font-size: 1.3125rem;\">For the above reasons, we find no merit in the appeal. The appeal is accordingly dismissed. There shall  be no order as to costs.”</span></b></i></div><div style=\"text-align: justify; margin-left: 25px;\"></div></h4><h4 style=\"text-align: left;\"><b>The Hon’ble Supreme Court has thus upheld the contention that there cannot be any assessment order in respect of a non- existent entity.....</b></h4><h4 style=\"text-align: left;\"><b>12.\r\n<span style=\"font-size: 1.3125rem;\">Therefore, as the legal position is abundantly clear in the light of the decisions referred to above, this Court has no </span>hesitation in answering the questions framed in the negative i.e., in favour of the Assessee and against the Revenue.</b></h4><h4 style=\"text-align: left;\"><b>The appeal is accordingly dismissed with no orders as to costs.</b></h4><h4 style=\"margin-left: 25px;\"><div style=\"text-align: left;\"><b><br></b></div><div style=\"text-align: left;\"><b><br></b></div><div style=\"text-align: left;\"><br></div></h4>', 'db3ea9a4c73fbfb5ba729416c1c8b276.PNG', '12b6f8b8f62581c8b2635e6a228ae537.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-04', 1, '', '', '2021-02-23 23:12:04', '2021-02-23 23:33:06');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(500, 'xemZjctOyIUIq37Bsski68gut', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Trial. Circumstantial Evidence. From the falsity of the defence plea and false answers given the Courts can find the missing links to be supplied for completing the chain of incriminating circumstances.  Supreme Court. 23 Feb 2021', '<h4><span style=\"font-size: 1.3125rem;\"><br></span></h4><table class=\"table table-bordered\"><tbody><tr><td><p style=\"text-align: center; \"><br></p><h3 style=\"text-align: center; color: rgb(0, 0, 0);\"><b><span style=\"font-size: 1.3125rem;\">R. Damodaran vs The State.<br> </span><span style=\"font-size: 1.3125rem;\">Criminal Appeal 1008 of 2010 decided on 23 February 2021.<br> </span><span style=\"font-size: 1.3125rem;\">Justice Ashok Bhushan and Justice Ajay Rastogi. </span></b></h3><h4 style=\"text-align: center; color: rgb(0, 0, 0);\"><span style=\"font-size: 1.3125rem;\"><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2009/30561/30561_2009_43_1501_26417_Judgement_23-Feb-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2009/30561/30561_2009_43_1501_26417_Judgement_23-Feb-2021.pdf</a></b></span></h4></td></tr></tbody></table><h4><b><span style=\"font-size: 1.3125rem;\">13. In a case based on circumstantial evidence, the settled principles of law are that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and such circumstances should be conclusive in nature and moreover the circumstances should be complete and there should be no gap left in the chain of events. However, the circumstances must be consistent only with the hypothesis of the guilt of the accused and inconsistent with the innocence. The principle which has to be kept in mind in a case of circumstantial evidence has been laid down by a three Judge Bench of this Court in the judgment reported in Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116 which reads as under:-</span><br></b></h4><h4 style=\"margin-left: 25px;\"><i><b>“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:<br>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 where the observations were made: “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”<br>(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,<br>(3) the circumstances should be of a conclusive nature and tendency,<br>(4) they should exclude every possible hypothesis except the one to be proved, and<br>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”</b></i></h4><h4><b>14. It was further followed by a three Judge Bench in Padala Veera Reddy Vs. State of Andhra Pradesh and Ors. 1989 Supp<br>(2) SCC 706 wherein this Court held as under:-</b></h4><h4> </h4><h4 style=\"margin-left: 25px;\"><i><b>“10. Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:<br>“(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;<br>(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;<br>(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and<br>(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra [(1982) 2 SCC 351]”</b></i></h4><div><h4><b>15. Taking note of the principles which has been laid down by this Court and the circumstances which the prosecution has established in a chain of events leave no matter of doubt that it is none other than the appellant who had committed the crime of murdering his own wife who was at the advanced stage of pregnancy, and taken the dead body to the hospital and made a false statement that she had got a cardiac arrest. Initially, the FIR was registered on suspicion but after the autopsy on the body of the deceased was conducted, taking note of the post-mortem report, a case under Section 302 IPC was registered. Such incriminating links of facts could, if at all, have been explained by the appellant and nobody else, they being personally and exclusively within his knowledge.<span style=\"color: rgb(156, 0, 0);\"> </span><span style=\"background-color: rgb(255, 255, 0);\">Of late, Courts have, from the falsity of the defence plea and false answers given to Court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed.</span></b></h4><h4><b>Appeal dismissed. </b></h4></div>', '63f3c570ff6f93fd317003075eb9fa45.jpg', '90e7bee5e2c7039681513bb94c2411b6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-23', 1, '', '', '2021-02-24 00:12:52', '2021-02-24 00:16:56'),
(501, '3PfJRE9JqcL9wPuJlKwuXeYjp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Micro Small and Medium Enterprises Development Act 2006. The Facilitation Council has no power to to deal with counter-claims filed against the supplier-contractor. Supreme Court. 22 Feb 2021', '<h4></h4><h4 style=\"text-align: justify; \"><b>Gr Green Life Energy Pvt. Ltd.  vs Leitwind Shriram Manufacturing Pvt. Ltd. Civil Appeal 692 of  2021 decided on 22 February  2021 Bench: Justice Indu Malhotra and Justice Ajay Rastogi. Author:Justice Indu Malhotra</b></h4><h4 style=\"text-align: justify; \"><b>Judgment Link</b></h4><h4 style=\"text-align: justify; \"><a href=\"https://main.sci.gov.in/supremecourt/2020/28336/28336_2020_42_28_26361_Judgement_22-Feb-2021.pdf\" target=\"_blank\"><b>https://main.sci.gov.in/supremecourt/2020/28336/28336_2020_42_28_26361_Judgement_22-Feb-2021.pdf</b></a></h4><h4 style=\"text-align: justify; \"><span style=\"background-color: rgb(255, 255, 0);\"><b>Judgment: </b></span></h4><h4 style=\"text-align: justify; \"><b>IN THE SUPREME COURT OF INDIA</b></h4><h4 style=\"text-align: justify; \"><b><span style=\"font-size: 1.3125rem;\">Civil Appeal 692 of 2021</span><br></b></h4><h4 style=\"text-align: justify; \"><span style=\"font-size: 1.3125rem;\"><b>GR Green Life Energy pvt Ltd vs Leitwing Shriram Manufacturing Pvt Ltd. </b></span></h4><h4 style=\"text-align: justify; \"><b>O R D E R</b></h4><h4 style=\"text-align: justify; \"><b>Leave granted.</b></h4><h4 style=\"text-align: justify; \"><b>1. The present Civil Appeal has been filed by the Appellant-Contractor to challenge the Order dated 16.09.2020 passed on an Application filed under Section 11 of the Arbitration and Conciliation Act, 1996 by the Madras High Court in Original Petition No. 300 of 2019.</b></h4><h4 style=\"text-align: justify; \"><b>2. The Appellant and the Respondent had entered into a Development Agreement dated 10.02.2014 to set up a Wind Farm Project in Sangli District in Maharashtra, which contained an arbitration clause. Clause 20 of the Agreement reads as :</b></h4><h4 style=\"text-align: justify; \"><b>“20. Governing Law and Jurisdiction and Service of Process.</b></h4><h4 style=\"text-align: justify; \"><b>c) All disputes, differences and claims or any non-payment concerning the project work hereby created and / or touching this presents, arising out of or in relation to anything contained herein shall be referred to arbitration to be held at Chennai, under the provisions of Arbitration and Conciliation Act, 1996 (inforce from time to time). The arbitration panel shall consist of three arbitrators, one arbitrator shall be appointed by each party and the arbitrators so appointed shall appoint the presiding arbitrator. The parties here to shall duly observe any interim award/s or direction/s of the arbitration tribunal and the award in pursuance to arbitration shall be final and binding on the parties hereto. The arbitration proceedings shall be in English language.”</b></h4><h4 style=\"text-align: justify; \"><b>3. Disputes arose between the parties with respect to claims raised by theAppellant-Contractor, which led to issuance of a legal notice dated 21.04.2018 seeking payment of outstanding dues of Rs. 3,26,08,545/-.</b></h4><h4 style=\"text-align: justify; \"><b>4. The Respondent vide letter dated 21.01.2019 rejected the allegations in the notice, and contended that the Contractor had failed to provide services as agreed under the Development Agreement. It was further contended that the Appellant-Contractor was liable to refund an amount of Rs.10,26,00,000/- with Interest @ 15% p.a., and pay liquidated damages of Rs. 1,54,00,000/- to the Respondent-Company. The Respondent invoked arbitration under Clause 20 of the Agreement, and nominated its arbitrator, with a request to the Appellant herein to make nomination of its arbitrator.</b></h4><h4 style=\"text-align: justify; \"><b>5. On 18.03.2019, the Respondent herein filed a Petition under Section 11(6) of the 1996 Act before the High Court of Madras, wherein it was prayed that the Court may appoint an arbitrator on behalf of the Appellant in terms of Clause 20 of the Development Agreement, since the Contractor had failed to do so.</b></h4><h4 style=\"text-align: justify; \"><b>6. Subsequently, the Appellant-Contractor, registered itself under the Micro, Small and Medium Enterprises Development Act, 2006 (“MSMED Act”), and filed an application for resolution of disputes before the Facilitation Council, Pune established under the MSMED Act.</b></h4><h4 style=\"text-align: justify; \"><span style=\"background-color: rgb(255, 255, 0);\"><b>7. In the meanwhile, the Petition under Section 11 was taken up for hearing before the High Court, wherein it was observed that there is no provision under the MSMED Act for reference of counter-claims to the Facilitation Council, and adjudication thereof. Sections 15 to 18 of the MSMED Act provide for reference of disputes with respect to claims made by a supplier / contractor registered under the MSMED Act. Even though Section 24 of the MSMED Act gives overriding effect to the MSMED Act, it would not be applicable in this case, since there is no provision under this Act to deal with counter-claims filed against the supplier-contractor. The High Court took the view that since there is no provision for raising counter-claims under the MSMED Act, and the parties had in the Development Agreement dated 10.02.2014 agreed to refer all their disputes under the 1996 Act, it was a fit case for appointment of the arbitrator. The arbitration agreement provided for a three-member tribunal. The Applicant (Respondent herein) had already nominated its arbitrator, the Contractor was directed to appoint an arbitrator. On such nomination, the two arbitrators would appoint the presiding arbitrator.</b></span></h4><h4 style=\"text-align: justify; \"><b>8. The Appellant-Contractor challenged the aforesaid Order dated 16.09.2020 before this Court vide Special Leave Petition (C) No. 16027 of 2020. During the course of the proceedings, the parties have agreed to have their disputes adjudicated under the Arbitration & Conciliation Act, 1996 by a Court-appointed Sole Arbitrator. In view of the statement made by the Counsel for both parties on instructions, Clause 20 of the Development Agreement dated 10.02.2014 stands superseded to the extent that the arbitration will be conducted by a three-member tribunal. We appoint Justice K. Kannan, former Judge of the Madras High Court, as the Sole Arbitrator to adjudicate on all the claims and counter claims made by the parties arising out of the Development Agreement dated 10.02.2014. The arbitration will be conducted in accordance with the Arbitration and Conciliation Act, 1996. The arbitral proceedings shall be conducted by the Madras High Court Arbitration Centre in accordance with its Rules. The appointment of the Sole Arbitrator is subject to the Declarations to be made under Section 12 of the Arbitration and Conciliation Act, 1996 with respect to independence and impartiality, and the ability to devote sufficient time to complete the arbitration. The Sole Arbitrator will be paid fees as per the Schedule of the Madras High Court Arbitration Centre (Administrative Cost and Arbitrators’ Fees) Rules, 2017. A copy of this Order be despatched to the Madras High Court Arbitration Centre, and Justice K. Kannan (Retd.) at the following address :</b></h4><h4 style=\"text-align: justify; \"><b>“Justice K. Kannan 3/11, Lakshmi Colony, North Crescent, T. Nagar Chennai - 600017 Mob: +91-9780008145”</b></h4><h4 style=\"text-align: justify; \"><b>9. In view of the aforesaid directions, the Application filed by the AppellantContractor under the MSMED Act, registered as MSFEC Case No. MH/26/M/PNE/02000 on 22.10.2020, will stand closed by the Facilitation Council, Pune.</b></h4><h4 style=\"text-align: justify; \"><b>10. The Appeal is disposed of in the aforesaid terms. Pending applications, if any, stand disposed. </b></h4><h4 style=\"text-align: justify; \"><b><i>Compiled by Angad Kamat, Advocate, Bangalore </i></b></h4><h4 style=\"text-align: justify; \"><br></h4>', '2167ba62c0ecb3c55f8c9681dbef5581.jpg', 'c6049fe522a8ec8ec229fed3b1cbd5e5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-22', 1, '', '', '2021-02-24 17:07:57', '2021-02-27 01:12:02'),
(502, '6RXPosFYC3k8TILkFSu8aVqBC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Trial. Wife cannot be dragged into criminal case simply because she is signatory to cheques along with her husband who is involved in illegal business transactions. Such practice should be curtailed. Karnataka High Court.', '<h4>Samaja Parivarthana Samudhaya vs Central Bureau of Investigation Anti Corruption Branch and another. </h4><h4>Criminal Petition 9421 of 2021 decided on 5 February 2021.</h4><h4> Justice K. Somashekar</h4><div><br></div><h4>The petitioner Shri S.R. Hiremath being the Honorary Executive Director of Samaja Parivarthana Samudhaya Asha Deep is the original petitioner before the Hon’ble Supreme Court of India in W.P (Civil) No.562/2009. A person aggrieved by the action or inaction on the part  of the CBI, would naturally be  free to ventilate their grievances in an appropriate proceeding before the appropriate forum. Accordingly, the  present  petitioner has approached this court by filing a petition under Section 482 Cr.P.C. seeking to set aside the order passed by the XLVI Addl. City Civil & Sessions Judge and Special Judge for CBI Cases at Bangalore City (CCH-47) in Spl.C.C.No.116/2012 dated 08.10.2015 discharging Accused No.2 / Smt. G. Lakshmi Aruna from the trial and further seeking to direct Accused No.2 to face trial for offences punishable under Sections 120(B), 420, 379, 409, 447, 468, 471, 477-A of IPC and Section 13(2) read with Section 13(1)(c) and (d) of the PC Act, 1988.<br>4. The second respondent herein is arraigned as  Accused No.2 in the charge-sheeted case and so also in the case in Spl.CC.No.116/2012 which is pending for trial against the accused. During investigation, oral as well as documentary evidence have been secured by the Investigating Agency in support of the allegations mentioned in the substance of the charge-sheet laid by the I.O. and also recorded the statement of witnesses    who    have    been    cited    as    CW-1     to CW-310. They are the witnesses who have been cited in the charge-sheet in R.C.No.18(A)/2011 registered by the first respondent / CBI-ACB, Bangalore.<br>3. The nutshell of the prosecution case reveals that the petitioner being aggrieved by the rampant illegal mining operations in the State of Karnataka, especially in the encroached forest areas, had preferred a writ petition W.P.(Civil) No.562/2009 under Article 32 of the Constitution of  India  before the Hon’ble Supreme Court of India seeking to direct the first respondent / CBI to investigate and to file a report relating to the illegal mining operations. Based upon the  direction  issued by the Hon’ble Supreme Court of India in the aforesaid writ petition, the respondent / CBI-ACB has investigated the case relating to Mining lease No.2434 standing in the name of M/s. AMC to which the second respondent Smt. G. Lakshmi Aruna happens to be a partner along with her husband Shri G. Janardhan Reddy who is arraigned as the first accused.</h4><h4>13. Even though it cannot be straightaway inferred that she was just a sleeping partner and she did not participate in  the business of the firm, but every role has been made by her husband Gali Janardhan Reddy who is arraigned as Accused No.1. It is specifically taking into consideration the material on record, Accused No.2 G. Lakshmi Aruna cannot be held even vicariously liable for alleged illegal acts of others which even finds place in the material secured by the Investigating Agency during the course of investigation. The charge-sheet has been laid by the I.O. But it is a bulky charge-sheet consisting of several witnesses. None of the witnesses  have  specifically  stated to incriminate the Accused No.2 G. Lakshmi Aruna  having a pivotal role and also direct involvement in the alleged transaction. But the allegation made against Accused No.1 /  Gali Janardhan Reddy are forceful and are attributed only against Accused No.1 who is none other than the husband of  this accused Lakshmi Aruna. But at a cursory glance of the statements of CW-20, CW-27, CW-40, CW-41, CW-48, CW-76, CW-95, CW-63, CW-73, CW-140 and CW-213 out of the witnesses who have been cited in the charge-sheet, it reveals  that the said witnesses were engaged in excavating iron ore and transporting the same to stack yard, in providing machinery for mining operations at the request of Janardhan Reddy and deployed machinery at the places shown by his representatives, some were production Manager, Project Manager  and  carried out mining operations in different sites as per instructions, etc. Though these witnesses have been cited by the prosecution as witnesses in the charge-sheet but the allegation in respect of   the accused Lakshmi Arun is the vital, is lacking in the case of the prosecution.  None of the afore-cited witnesses on the part   of the prosecution have implicated Accused No.2 G. Lakshmi Aruna nor they have made any reference of her name and so  also some vital activities done by her in respect of  the  allegations made against the accused in the charge-sheet  laid  by the Investigating Agency.  All  these  material  documents have been considered by the Trial Court in Spl.CC No.116/2012 and thereby has allowed I.A.No.21 by order dated 8.10.2015 by discharging the accused-G. Lakshmi Aruna from the alleged offences.<br></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">18.Though the investigating agency has laid the charge sheet against the accused under Section 173(2) of Cr.P.C. by following requisite conditions and so also recording  of  statement of witnesses as contemplated under Section 161 and<br>164 of Cr.P.C. but in the instant case, mere recording the statement of witnesses, it cannot be specifically said that the incriminating materials were attributed specifically against accused No.2 – Smt.Lakshmi Aruna. But investigation report reveals that accused No.1 – Gali Janardhan Reddy is involved in respect of committing offences as the criminal conspiracy  and so also fraudulent and criminal breach of trust and also offences under Section 13(1)(c) and (d) r/w 13 Section 13(2) of the Prevention of Corruption act, 1988. CWs.9 to 15,  CW18,  23, 38, 39, 51 to 58 who are the official witnesses have given their statement before the investigating agency during the course of investigation. They were deputed to issue permits to M/s. Associated Mining Company. But these witnesses have given the statement during the course of investigation,  but  Rule 47 of the Karnataka Forest Rules in respect of issuance of permits, K.M.Vishwanath who is cited as a witness where his statement has been recorded as contemplated under Section 164 of Cr.P.C. but he has given a statement before the IO in respect of the allegations made against Accused No. 1- Gali Janardhan reddy and even at a cursory glance of his statement in its entirety he has specifically stated in respect of the allegation of any force, threat or inducement being made to   take hold of the firm. All the incriminating attributions  made are against Accused No.1 – Gali Jardhan Reddy. Similarly, CW.20 has also given the statement as contemplated under Section 164 of Cr.P.C. Even at a cursory glance of statement of these witnesses there is no specific reference made to the name of accused No.2 – Smt.Lakshmi Aruna that she is  having  pivotal role with Accused No.1 – Gali Janardhan Reddy in respect of committing the alleged offences. Similarly the statement of CWs.27, CW.40, CW.41, they have also given their statements during the course of investigation but they did not spell about the role made by accused No.2 – Smt.Lakshmi Aruna. At a cursory glance of statement of CW.76, this witness has also never spelt about the role made by accused No.2 – Smt.Lakshmi Aruna. But all these are policy  matters  in  respect of the firm and so also, payment to any party and any decision in respect of the iron ore business was taken by Gali Janardhan Reddy who is arraigned as  accused  No.1.  Only after verification of the material documents and also vouchers approved by him that his wife accused No.2 – Smt.Lakshmi Aruna used to subscribed her signature on the cheques.  Even at a cursory glance of the entire statement it is only after approval made by Gali Janardhan Reddy on the vouchers maintained in the business administration tallies,  accused  No.2 – Smt.Lakshmi Aruna used to subscribe her signature on the cheque. But the statement of CW.4 does not spell any incriminating materials against accused No.2 – Smt.Lakshmi Aruna that she was having a vital role in committing  the  alleged offences with her husband accused No.1 – Gali Janardhan Reddy. There is no dispute that accused No.2 – Smt.Lakshmi Aruna who is no other than the wife of Gali Janardhan Reddy and so also she is one of the family members who is nothing to do with the important role along with her husband. But she has been lugged into the alleged crime. But such practice should be curtailed as she being the innocent victim and just because she happened to be the wife of Gali Janardhan Reddy, she has been roped in the alleged charge sheet. B</span>ut the principles enunciated in the aforesaid decisions cited by learned senior counsel – Sri Sandesh J.Chouta that accused No.2 – Smt.Lakshmi Aruna is a sleeping partner of M/s.Associated Mining Company along with her husband accused No.1 – Gali Janardhan Reddy. But  there  is  no  specific role made by her in respect of the iron ore business   and there are no incriminating materials against her. But all  the mining business is done by accused No.1 and there is attribution against him alone as alleged. Therefore, there is no much force in the arguments addressed by the learned counsel for the petitioner for seeking intervention of this Court by exercising the power under Section 482 of Cr.P.C. On all these grounds, learned senior counsel for respondent No.2/accused No.2 seeks for dismissal of the petition.<br>21.<span style=\"white-space:pre\">	</span>But in the instant case, the charge sheet is laid by   the investigating agency – CBI/ACB under Section 173(2) of Cr.P.C. Mere because of laying of charge sheet against the accused by the investigating agency for the offences which lugged in the charge sheet, but the accused is having right of recourse to file an application under Section 239/227  of  Cr.P.C. seeking discharge if there are no sufficient evidence or materials secured by the IO to framing of a charge. If there are no strong materials find place in the charge sheet case, then   the trial Judge has to apply its mind to consider  the  application filed by the accused seeking discharge. But in the instant  case,  Accused  No.2  –  Smt.Lakshmi  Aruna  has  filed I.A.21 under Section 239<span style=\"white-space:pre\">	</span>of Cr.P.C.<span style=\"white-space:pre\">	</span>seeking<span style=\"white-space:pre\">	</span>discharge. Subsequent to filing of an application by her, the Special Public Prosecutor has filed objections to the said application in detail by referring the statement of  witnesses and so also referring  the material documents secured by the IO and ultimately came to the conclusion that mere because Accused No.2 – Smt.Lakshmi Aruna is a partner of M/s. Associated Mining Company along with Accused No.1 and when there is no active role is incriminated against her, she cannot be made liable for the acts done by Accused No.1. She was only subscribing her signature  on  the  documents  only  after  the  documents  were verified by her husband – Gali Janardhan Reddy who is arraigned as Accused No.1. Mere because she was subscribing the signature, it cannot be said that there is direct overt act attributed against her in committing the alleged offences that too be in the mining of iron ore business which was being carried out by accused No.1. Therefore, the XLVI  Additional  City Civil and Sessions Judge and Special Judge for CBI Case, Bangalore has rightly come to the conclusion that there are no sufficient materials/evidence against Accused No.2 – Smt.Lakshmi Aruna to proceed in further for framing of charge and consequently, she was discharged from the  case.  Therefore, in this petition, there is  no merits or otherwise to  say there is no substance to call for interference of this Court and no warranting circumstances has arised for intervention of the impugned order passed by the trial court in Spl.C.C.No.116/2012 dated 08.10.2015.<br>22.<span style=\"white-space:pre\">	</span>In terms of the aforesaid reasons and findings, I proceed to pass the following: <br>ORDER<br>The petition filed by the petitioner S.R. Hiremath, Honorary Executive Director of Samaja Parivarthana Samudhaya Asha Deep under Section 482 Cr.P.C. is hereby rejected. Consequently, the impugned order  passed  by  the 46th City Civil & Sessions Judge & Special Judge for  CBI  Cases at Bangalore City in Spl.C.C.No.116/2012 dated 8.10.2015 is hereby confirmed. Since it is a case of the year 2012, the Trial Court is directed to expedite the case for  disposal by following the Standard Operating Procedure. However, all the contentions shall be kept open to both the prosecution and the defence counsel in the aforesaid case.<br>Whatever observations made in this order shall not influence the mind of the Trial Court to dispose of the case where the other accused are facing trial and shall be disposed  of on merits, in accordance with law.<br></h4>', '16b839ea9ce31b98a4c55c88b0609f9d.jpeg', '23804dfcd27e51346c30221d44136511.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-13', 1, '', '', '2021-02-24 20:19:46', '2023-01-13 17:56:35'),
(503, '92Hheo3nT9xyJGReZ118YRZnc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Judicial review of a policy decision and issuance of mandamus to frame policy in a particular manner are absolutely different. Supreme Court refuses to grant additional chance to CSE 2021 candidates citing cascading effect. 24 Feb 2021  ', '<h4><table class=\"table table-bordered\" style=\"font-size: 0.875rem; text-align: center;\"><tbody><tr><td><p><span style=\"color: rgb(0, 0, 0); font-size: 1.3125rem;\"><b>Rachna and others vs Union of India and others. </b></span></p><p><span style=\"color: rgb(0, 0, 0); font-size: 1.3125rem;\"><b>Writ Petition 1410 of 2020 decided on 24 February 2021. </b></span></p><p><b><span style=\"color: rgb(0, 0, 0); font-size: 1.3125rem;\">Justice A.M.Khanwilkar, Justice Indu Malhotra and Justice Ajay Rastogi. </span><br></b></p></td></tr></tbody></table></h4><h4><span style=\"font-size: 1.3125rem;\"><span style=\"background-color: rgb(255, 255, 0);\"><b>Judgment Link:</b></span> </span><a href=\"Link: https://main.sci.gov.in/supremecourt/2020/23183/23183_2020_42_1501_26418_Judgement_24-Feb-2021.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">https://main.sci.gov.in/supremecourt/2020/23183/23183_2020_42_1501_26418_Judgement_24-Feb-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs </span>26....“The question that emerges for our consideration is   that   whether   the petitioners/intervenors and other similarly placed candidates are entitled to another/additional chance for CSE 2021 on account of the unprecedented Covid­19 pandemic which as alleged   has   deprived   them   from   effectively participating in the Examination 2020”. <br>43. It is the settled principle of law that policy decisions are open for judicial review by this Court for a very limited purpose and this Court can interfere into the realm of public policy so framed if it is either absolutely capricious, totally arbitrary or not informed of reasons and has been considered by this Court in Union of India and Others Vs. M. Selvakumar  and Another  2017(3) SCC 504. The relevant portion is as under:­</h4><h4 style=\"margin-left: 25px;\"><i>“47. There is one more reason due to which we are unable to subscribe to the view taken by the Madras High Court and Delhi High  Court. The horizontal reservation and relaxation for Physically Handicapped Category candidates for Civil Services Examination, is a matter of Governmental policy and the Government after considering the relevant materials has extended relaxation and concessions to the Physically Handicapped candidates belonging to the  Reserved Category as well as General Category. It is not in the domain of the courts to embark upon an inquiry as to whether a particular public policy is wise and acceptable or whether better policy could be evolved. The Court can only interfere if the policy framed is absolutely capricious and non­informed by reasons, or totally arbitrary, offending the basic requirement of Article 14 of the Constitution.”</i></h4><h4><font color=\"#9c0000\">45. Judicial review of a policy decision and to issue mandamus to frame policy in a particular manner are absolutely different.  It is within the realm of the executive to take a policy decision based on the prevailing   circumstances for better administration   and  in meeting out the exigencies but at the same time, it is not within the domain of the Courts to legislate. The Courts do interpret the laws and in such an interpretation, certain creative process is involved. The Courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for. The Court is called upon to consider the validity of a policy decision only when a challenge is made that such policy decision infringes fundamental rights guaranteed by the Constitution or any other statutory right. Merely because as a matter of policy, if the 1st respondent has granted relaxation  in the past  for  the reason  that  there was  a change   in   the   examination   pattern/syllabus   and   in   the   given situation, had considered to be an impediment for the participant in the Civil Service Examination, no assistance can be claimed by the petitioners in seeking mandamus to the 1st respondent to come out with a policy granting relaxation to the participants who had availeda final and last attempt or have crossed the upper age by appearing in the Examination 2020 as a matter of right.</font><br></h4><h4>46. It   has   been   brought   to   our   notice   that   not   only   the petitioners/intervenors   before   this   Court,   but   there   are  large number of candidates who appeared in the various examinations in the year 2020 during Covid 19 pandemic and everyone must have faced some constraints/impediments/inconvenience in one way or the other and   this   Court can take a judicial  notice that these petitioners have appeared in the same pattern of examination in the previous years since the year 2015 and what is being claimed and prayed for under the guise of Covid 19 pandemic is nothing but a lame excuse in taking additional attempt to participate in the Civil Service Examination 2021 to be held in future and we find no substance in either of the submissions which has been made before us.</h4><h4>47. The data furnished to this Court by the Commission clearly indicate that various selections have been held by the Commission for Central Services in the year 2020 during Covid 19 pandemic and selections must have been held by State Commissions and other recruiting agencies, <font color=\"#9c0000\">if this Court shows indulgence to few who had participated in the Examination 2020, it will set down a precedent and also have cascading effect on examinations in other streams, for which we are dissuaded to exercise plenary powers under Article 142 of the Constitution.</font></h4><h4>48. We,  however   make it clear that this decision would   not restrict the 1st  respondent or the executive in exercising  its discretion  in meeting out  the  nature  of  difficulties as being projected to this Court, if come across in future in dealing with the situation, if required.<br>49. Consequently, the petition fails and is accordingly dismissed.<br><br></h4>', 'eea733805d26d244a108802f1bc6fd2c.jpg', 'e74f0e34431dcc180603150402e1ab66.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-24', 1, '', '', '2021-02-25 02:35:10', '2021-02-27 01:12:38'),
(504, 'hoRcrszkvFV2cbzcRzKFxI43U', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Medical Council of India 1956. Issuance of Essentiality Certificate is not just a ministerial act and the State can withdraw such certificate. Supreme Court 24 Feb 2021.    ', '<h4><table class=\"table table-bordered\" style=\"font-size: 0.875rem;\"><tbody><tr><td><h4>V.N.Public Health and Educational Trust vs State of Kerala and others. </h4><h4>Civil Appeal 703 of 2020 decided on 24 February 2021. </h4><h4>Justice A.M. Khanwilkar, Justice B.R.Gavai and Justice Krishna Murari </h4><h4>Author: Justice Krishna Murari.  </h4></td></tr></tbody></table></h4><h4>Judgment <a href=\"Link: https://main.sci.gov.in/supremecourt/2020/25182/25182_2020_41_1501_26430_Judgement_24-Feb-2021.pdf\" target=\"_blank\">Link: https://main.sci.gov.in/supremecourt/2020/25182/25182_2020_41_1501_26430_Judgement_24-Feb-2021.pdf</a></h4><h4><b style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs: </b>3. The issue arising for consideration before us is whether Essentiality Certificate and Consent of Affiliation should be granted for the year 2020-2021 to the appellant. The other issues which need to be addressed are :-</h4><h4 style=\"margin-left: 25px;\"><i>(i) Whether grant of Essentiality Certificate by the State Government is only a<br>Ministerial Act?<br>(ii) Whether Essentiality Certificate, once issued, can be withdrawn?</i></h4><h4><span style=\"font-size: 1.3125rem;\"><b style=\"background-color: rgb(255, 255, 0);\">19. Whether issuance of an Essentiality Certificate is only a Ministerial Act :</b>- </span>This Essentiality Certificate in the prescribed form is crucial for avoiding cases where the colleges despite grant of initial permission could not provide the infrastructure, teaching and other facilities as a result whereof the students who had already been admitted suffered serious prejudice. Medical Council of India Regulations as well as Kerala University Health Sciences Statutes very emphatically mandate that the consent of affiliation can only be given after the Institution fulfills the essential requirements. The contention of the Appellant that the absence of Essentiality Certificate is not one of the factors for consideration and is extraneous to the decision-making process cannot be accepted. Whilst granting the Essentiality Certificate, the State Government undertakes to take over the obligations of the private educational institution in the event of that institution becoming incapable of setting of the institution or imparting education therein. Such an undertaking on the part of the State Government is unequivocal and unambiguous. An Essentiality Certificate by the State Government legitimizes a medical college declaring it fit to impart medical education and gives accouchement to the expectation amongst the stakeholders that the Applicant College shall fulfill basic norms specified by the MCI to start and operate a medical college. Bearing in mind that the question of justified existence of a college and irregular/illegal functioning of an existing college belong to a different order of things and cannot be mixed up. We come to the conclusion that the issuance/re-issuances of an essentiality certificate is not in any way a ministerial job and while dealing with a case of maintaining standards in a professional college, strict approach must be adopted as these colleges are responsible for ensuring that medical graduate has the required skill set to work as a doctor in the country. Poor assessment system; exploding number of medical colleges; shortage of patients/clinical materials; devaluation of merit in admission, particularly in private institutions; increasing capitation fees; a debilitated assessment and accreditation system, are problems plaguing our Medical Education system. Allowing such deficient colleges to continue to function jeopardizes the future of the student community and leading to incompetent doctors to graduate from such colleges and ultimately pose a bigger risk to the society at large defeating the very purpose of the Essentiality Certificate issued by the State. The State would be deterring from its duty if it did not conduct an inspection from time to time to ensure that the requisite standards as set by the MCI are met before issuing/renewing the Essentiality certificate. That is by no stretch of imagination ‘merely a ministerial job’. Considering especially that while issuing the Essentiality Certificate the State Govt undertakes that should the Medical College fail to provide the requisite infrastructure and fresh admissions are stopped by the Central Government, the State Government shall take over the responsibility of the students already admitted in the College. Same is the position with respect of CoA by the University. The First Statute of KUHS prescribes that University may appoint a Commission to inspect the proposed site to make a physical verification of the existing facilities and suitability of proposed site. The grant of affiliation is dependent upon fulfillment of all the conditions that are specified in Clause X(I) of First Statues or that may be specified which includes staff, infrastructure facility, hospital, internet, library, playground, hostel, etc. Thus, even grant of CoA by the University also cannot be said to be merely a ministerial act. In view of above, we are of the considered opinion that grant of EC by the State Government and CoA by the University is not simply a ministerial act and we do not find any merit in the argument of the appellant in this regard.</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">20. Whether Essentiality Certificate once issued, can be withdrawn </b>:- Much emphasis has been laid by the learned counsel for the appellant on decision of this Court in Chintpurni Medical College & Hospital & Anr. Vs. State of Punjab & Ors.(2018) 15 SCC 1. <br>22. A two-Judge Bench decision in the case of Chintpurni Medical College was considered by a three-Judge Bench in the case of Sukh Sagar Medical College and Hospital Vs. State of Madhya Pradesh and Ors (2020) SCC Online SC 851. In paragraph 13 of the reports, the three-Judge Bench though agreed with the dictum in Chintpurni Medical College that the act of the State in issuing EC is a quasi-judicial function. It further went on to note the exception carved out in the case of Chintpurni Medical College, wherein the State Government can cancel/revoke/withdraw the EC in paragraph 36. It was finally observed in paragraph 25 of the reports in Sukh Sagar Medical College and Hospital  as under:-</h4><h4 style=\"margin-left: 25px;\"><i>“25. We are conscious of the view taken and conclusion recorded in Chintpurni Medical College (Supra). Even though the fact situation in that case may appear to be similar, however, in our opinion, in a case such as the present one, where the spirit behind the Essentiality Certificate issued as back as on 27.08.2014 has remained unfulfilled by the appellant-college for all this period (almost six years), despite repeated opportunities given by the MCI, as noticed from the summary/observation in the assessment report, it can be safely assumed that the substratum for issuing the Essentiality Certificate has completely disappeared. The State Government cannot be expected to wait indefinitely, much less beyond period of five years, thereby impacting the interests of the student community in the region and the increased doctor-patient ratio and denial of healthcare facility in the attached hospital due to gross deficiencies. Such a situation, in our view, must come within the excepted category, where the State Government ought to act upon and must take corrective measures to undo the hiatus situation and provide a window to some other institute capable of fulfilling the minimum standards/norms specified by the MCI for establishment of a new medical college in the concerned locality or within the State. Without any further ado, we are of the view that the appellant-college is a failed institute thus far and is unable to deliver the aspirations of the student community and the public at large to produce more medical personnel on year to year basis as per the spirit behind issuance of the subject Essentiality Certificate dated 27.08.2014. To this extent, we respectfully depart from the view taken in Chintpurni Medical College.”</i></h4><h4>23. The law thus stand settled that the State Government has power to withdraw the EC where it is obtained by playing fraud on it or where the very substratum on which the EC was granted vanishes or any other reason of like nature.<br><br></h4>', '1cf677916208e64a8bd346a3c49ec0aa.jpg', '1947d02fb7bab1d64883cd114bd21cd4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-24', 1, '', '', '2021-02-25 03:38:26', '2021-02-27 01:11:33');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(505, 'WXXLkVHjpDlgW3vDd5zj3DhQe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constitution of India. Principles on which the repugnancy of law made by State and law made by the Parliament explained. Supreme Court 24 Feb 2021 ', '<h4>Parmar Samantsinh Umedsinh vs State of Gujarat and others. Civil Appeal 706 of 2021 decided on 24 February 2021. Justice Ashok Bhushan, Justice<span style=\"font-size: 1.3125rem;\"> R.Subhash Reddy and Justice M.R. Shah</span> </h4><h4>Judgment Link:<a href=\"https://main.sci.gov.in/supremecourt/2015/28253/28253_2015_37_1501_26431_Judgement_24-Feb-2021.pdf\" target=\"_blank\"> https://main.sci.gov.in/supremecourt/2015/28253/28253_2015_37_1501_26431_Judgement_24-Feb-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 37. Explaining the expression “inconsistent”, this Court in Basti Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Anr., (1979) 2 SCC 88where following was laid down in paragraph 23:-</h4><h4 style=\"margin-left: 25px;\"><i>“23. …Inconsistent”, according to Black\'s Legal Dictionary, means “mutually repugnant or contradictory; contrary, the one to the other so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other”…”</i><br></h4><h4>38. One of the meanings of expression “inconsistent” as approved by this Court is mutually repugnant or contradictory. Article 254 of the Constitution contains a heading “inconsistency between laws made by the Parliament and the laws made by the Legislature of the State” whereas under Article 254(1) and Article 254(2) the words used are repugnant. The Constitution itself, thus, has used the words inconsistency and repugnancy interchangeably. To find out as to whether a law made by State Legislature is inconsistent with provisions of Part IXA of the Constitution, the principles which have been laid down by this Court to determine the repugnancy between the law made by the Legislature of a State and law made by Parliament can be profitably relied on. We, thus, need to notice the principles on which the repugnancy of law made by State and law made by the Parliament is found out.<br>39. The Constitution of India is a paramount law to which all other laws are subject. One of the important tests to find out as to whether or not there is repugnancy is to ascertain the intention of the Legislature regarding the fact that the dominant Legislature allowed the subordinate Legislature to operate in the same field paripasu the State Act and there will be no inconsistency when the State Act and Central Act are supplemental to each other. Things are inconsistent when they cannot stand together at the same time and one law is inconsistent with another law, when the command or power or provision in the law conflicts directly with the command or power or provision in the other law. While legislating on a particular subject matter, the paramount Legislature may evince the intention to cover only certain specific matters leaving it to the State Legislature to deal with the rest. One more preposition need to be noticed is that there is always a presumption that Legislature does not exceed its jurisdiction and Court should make every attempt to reconcile the provisions of apparently conflicting enactment. This Court in Ch. Tika Ramji and Others, Etc. Vs. The State of Uttar Pradesh and Others, AIR 1956 SC 676 had occasion to consider the repugnancy between a State legislation, U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 and the Central Legislation namely the Industries (Development and Regulation) Act, 1951 as well as the Essential Commodities Act, 1955. It was held by this Court that repugnancy falls to be considered when the law made by the Parliament and the law made by the State Legislature occupies the same field. This Court quoted with approval three tests as referred by Nicholas in his Australian Constitution and one test referred by Isaacs, J. in paragraphs 27 and 28 of the judgment, which are to the following effect:-<br></h4><h4 style=\"margin-left: 25px;\"><i>“27. Nicholas in his Australian Constitution, 2nd Ed., p. 303, refers to three tests of inconsistency or repugnancy:—<br>(1) There may be inconsistency in the actual terms of the competing statutes (R. v. Brisbane Licensing Court, [1920] 28<br>CLR 23).<br>(2) Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law, or the award of the<br>Commonwealth Court, is intended to be a complete exhaustive code (Clyde Engineering Co.<br>Ltd. v. Cowburn, [1926] 37 CLR 466).<br>(3) Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject-matter (Victoria v. Commonwealth, [1937] 58 CLR 618; Wenn v. AttorneyGeneral (Vict.), [1948] 77 CLR 84)<br>28. Isaacs, J. in Clyde Engineering Company, Limited v. Cowburn [(1926) 37 CLR 466, 489] laid down one test of inconsistency as conclusive: “If, however, a competent legislature expressly or implicitly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where an- other Legislature assumes to enter to any extent upon the same field”.”</i><br></h4><h4>40. This Court after referring to the provisions of StateLegislation as well as Central Legislation held that none of these provisions do overlap, the Centre being silent with regard to some of the provisions, which have been enacted by the State, hence no repugnancy was found. Following was laid down in paragraph 36:-<br>”(36). XXXXXXXXXXXXXXXX Suffice it to say that none of these provisions do overlap, the Centre being silent with regard to some of the provisions which have been enacted by the State and the State being silent with regard to some of the provisions which have been enacted by the Centre. There is no repugnancy whatever between these provisions and the impugned Act and the Rules framed thereunder as also the U.P. Sugarcane Regulation of Supply and Purchase Order, 1954 do not trench upon the field covered by Act 10 of 1955.”<br>41. Another Constitution Bench in Deep Chand and Ors. Vs. The State of Uttar Pradesh and Ors., AIR 1959 SC 648 speaking through K. Subba Rao, J. after referring to the earlier judgments of this Court and other precedents laid down following three principles for ascertaining the repugnancy between two statutes:-</h4><h4 style=\"margin-left: 25px;\"><i>“(29). ..Repugnancy between two statutes may thus be ascertained on the basis of the following three principles:<br>(1) Whether there is direct conflict between the two provisions;<br>(2) Whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State Legislature and<br>(3) Whether the law made by Parliament and the law made by the State Legislature occupy the same<br>field.”</i></h4><h4>42. Again a Constitution Bench of this Court in M.Karunanidhi Vs.Union of India and Anr., (1979) 3 SCC 431 reiterated the principles to determine the inconsistency between two Statutes. In paragraph 35, following prepositions were laid down:-</h4><h4 style=\"margin-left: 25px;\"><i>“35. On a careful consideration, therefore, of the authorities referred to above,<br>the following propositions emerge:<br>1. That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field.<br>2. That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes.<br>3. That where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results.<br>4. That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field.”</i></h4><h4>43. Thakkar, J. speaking for himself and Fazal Ali, J. in M/s. Ram Chandra Mawa Lal, Varanasi and Ors. Vs. State of Uttar Pradesh and Ors., 1984 (Supp.) SCC 28 had occasion to elaborately consider the principles to determine inconsistency between two Statutes. The<br>principles were stated in following words in paragraph 47:-</h4><h4 style=\"margin-left: 25px;\"><i>47. …The principle may be stated thus. The Centre and the State both cannot speak on the same channel and create disharmony. If both speak, the voice of the Centre will drown the voice of the State. The State has to remain “silent” or it will<br>be “silenced”. But the State has the right to “speak” and can “speak” (with unquestionable authority) where the Centre is “silent, without introducing disharmony…….”</i></h4><h4>44. The last judgment which needs to be noticed is another Constitution Bench judgment in K.T. Plantation Private Limited and Anr. Vs. State of Karanataka, (2011) 9 SCC 1 where on repugnancy, following was laid down in paragraph 108:-</h4><h4 style=\"margin-left: 25px;\"><i>“108. The question of repugnancy under Article 254 of the Constitution arises when the provisions of both laws are fully inconsistent or are absolutely irreconcilable and it is impossible without disturbing the other, or conflicting results are produced, when both the statutes covering the same field are applied to a given set of facts. Repugnancy between the two statutes would arise if there is a direct conflict between the two provisions and the law made by Parliament and the law made by the State Legislature occupy the same field. Reference may be made to the decisions of this Court in Deep Chand v. State of U.P. [AIR 1959 SC 648], Prem Nath Kaul v. State of J&K [AIR 1959 SC 749], UkhaKolhe v. State of Maharashtra [AIR 1963 SC 1531], Bar Council of U.P. v. State of U.P. [(1973) 1 SCC 261], T. Barai v. Henry Ah Hoe [(1983) 1 SCC 177], Hoechst Pharmaceuticals Ltd. v. State of Bihar [(1983) 4 SCC 45], Lingappa Pochanna Appelwar v. State of Maharashtra [(1985) 1 SCC 479] and Vijay Kumar Sharma v. State of Karnataka [(1990) 2 SCC 562].”</i></h4><h4>45. After noticing the principles laid down by this Court in above noted cases to find out repugnancy between law made by State Legislature and that of Parliament, we need to apply the above prepositions to find out as to whether the provisions of Act, 1949 and the Rules framed thereunder are inconsistent with constitutional provisions as contained in Part IXA of the Constitution of India. </h4>', '4d534ef404c2856e048a8cf9b27dacdd.jpg', '238bf757314c46a5bdefee0491d3cec2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-24', 1, '', '', '2021-02-25 15:47:54', '2021-02-27 01:10:57'),
(506, 'NQ34ufWRdnGBg5IKmBvoCdjX1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 482. Criminal complaint cannot be quashed only on the ground that allegations appear to be of civil nature when ingredients of the offence against the accused are prima facie made out in the complaint. Karnataka High Court 19 Feb 2021', '<h4>M/s. Sabre Travel Technologies Private Limtied and others vs State of Karnataka and another. Criminal Petition 154 of 2021 decided on 19 February 2021. Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/367830/1/CRLP154-21-19-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/367830/1/CRLP154-21-19-02-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs: FACTS </span>2,3&4.The factual matrix of the case is that respondent No.2 herein has filed the complaint with the police vide his complaint dated 3.11.2020 that in the year 1992, he had joined Sabre at its head quarters in South Lake, Texas, USA and he was transferred in various capacity to serve the Sabre office locations. He was also offered a position as a Director on 12.01.2005 and he accepted the offer and moved to Bengaluru. He had already completed 13 years of service with Sabre. In May 2017, all of a sudden the decision was made to terminate his employment. By that time, he had nearly completed 25 years of service in Sabre. The decision of terminating was without any cause and hence, he would be entitled to a minimum severance pay equal to 12 months of their last drawn salary. His annual fixed salary was Rs.1,42,32,107/- and in addition, he was also entitled to his full tenure gratuity for 25 years of service amounting to Rs.96,36,325/-. Besides the above, he was terminated without cause. He would have been entitled to the payment of the above mentioned amount. Apart from that he had a total of Rs.8,837/- RSU of Sabre, which was valued at Rs.1,24,60,170/-. Hence, he was entitled to a minimum payment of cash of Rs.3,49,15,782/-. He entered into the negotiations in good faith with Sabre India for his voluntarily separation and in the pursuance of the same, the mutual separation agreement was entered into on 31.05.2017. By virtue of the MSA, he was made to forego and forfeit all his claims against Sabre and agreed to pay the amount by way of part-I payment of Rs.52,89,399/- and part-II payment of Rs.2,06,69,245/- on or before 10.12.2017. It is alleged that however, soon after the first tranche of payments was completed. They began behaving in a suspicious and odd manner. He was alerted to this behaviour when he began seeking one set of originals of the executed MSA. The MSA was executed in two originals and both of the originals were retained by Sabre India. When he insisted one copy, they did not furnish in its entirety. By surprise on 13.12.2017, he received an email that they have conducted an internal inquiry after his departure from the Company and came to the purported conclusion that he breached Sabre’s Code of Business Ethics. In the complaint, specific allegation is made that with dishonest intention in order to cheat and defraud him, the MSA was entered and the same was with criminal and mala fide intent and deceived him in forgoing his valuable statutory and contractual claims against them. It is also urged in the complaint that the petitioners herein never intended on performing the MSA and fraudulently and dishonestly induced him in executing the said agreement, for which he was deceived to forego his valuable post- employment claims and he was cheated by executing the MSA. Hence, it attracts the ingredients of the offence alleged in the complaint. Based on the complaint, the police have registered the case against these petitioners for the offence punishable under Sections 120B, 406, 415, 418 and 420 read with Section 34 of IPC. Hence, the present petition is before this Court.</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">HELD</span>: 33. In the case on hand, the complaint is specific that with dishonest intention, the MSA was entered into between the parties. This Court would also like to refer to the principles laid down in Criminal Appeal No.255/2019 between Sau. Kamal Shivaji Pokarnekar v. The State of Maharashtra and Ors.  at  para No.9, the Apex Court has held that criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted.</h4><h4>34. Having perused the material on record, this Court already pointed out that there was MSA between the parties and also an agreement between the parties. No doubt, there is a clause to withhold the amount. The question before the Court is that whether there was dishonest intention at the inception of the entering into contract and if so, the said question has to be probed by the Investigating Officer if the complaint prima facie discloses the cognizable offence and hence, once the cognizable offence is found in the allegations made in the complaint, the Investigating Officer has to be probe the matter as established under law.<br>35. In view of the discussion made above, I proceed to pass the following:-<br><br><span style=\"background-color: rgb(255, 255, 0);\">The petition is hereby dismissed.</span></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Judgments cited</span>: </h4><h4>1. Prof. R.K. Vjayasarathy and Another v.  Sudha  Seetharam  and  Another  (2019) 16 SCC 739, </h4><h4>2. Binod Kumar and Others v. State of Bihar and Another reported in (2014) 10 SCC 663, </h4><h4>3. Commissioner of Police and Others v. Devender Anand and  Others  2019  SCConline SC 996, </h4><h4>4. Satishchandra Ratanlal Shah v.  State  of  Gujarat  and another (2019) 9 SCC 148, </h4><h4>5. Medmeme, LLC and Others v. Ihorse BPO Solutions Private Limited (2018) 13 SCC 374 , </h4><h4>6. Joseph Salvaraj A. v.  State  of  Gujarat and Others (2011) 7 SCC 59, </h4><h4>7. K.Jagadish v. Udaya Kumar G.S. 2020 SCC Online SC 318, </h4><h4>8. Kamal Shivaji Pokarnekar v. State of Maharashtra and Others (2019) 14 SCC 350,<br>9. Mohd. Allauddin Khan v. State of Bihar and Others (2019) 6 SCC 107, </h4><h4>10. Syed Askari Hadi Ali Augustine Imam and Another v. State (Delhi Administration) and another (2009) 5 SCC 528, </h4><h4>11. Som Mittal v. Government of Karnataka reported in (2008) 3 SCC 753, </h4><h4>12. Indian Oil Corporation v. NEPC India  Limited  and  Others (2006) 6 SCC 736, </h4><h4>13. Devender Kumar Singla v. Baldev Krishan Singla (2005) 9 SCC 15, </h4><h4>14. Lalita Kumari v. Government of Uttar Pradesh and  Others (2014) 2 SCC 1, </h4><h4>15. Criminal Petition No.3197/2020 between Yogesh Agarwal and Ors. v. State of Karnataka and Ors vide order dated 24.9.2020,</h4><h4>16. Criminal Appeal No.255/2019 between Sau. Kamal Shivaji Pokarnekar v. The State of Maharashtra and Ors.  </h4><h4><br></h4>', '16f361e6a4a65647cb892d439d59a58b.jpg', '538f7c19666fccad97c782e686571fb5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-19', 1, '', '', '2021-02-25 23:31:25', '2021-02-25 23:35:04'),
(507, 'rmhtbaIgbrljzvIiTLGSeCk4i', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Reserve Bank of India. Transfer which is neither in public interest nor in the wake of administrative or sudden exigency to which the service of an employee becomes indispensable is liable to be quashed. Karnataka High Court 22 Feb 2021', '<h4>Shobha N Rathi vs The Reserve Bank of India and others. Writ Petition 58446 of 2017 decided on 22 February 2021. Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/368161/1/WP58446-17-22-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/368161/1/WP58446-17-22-02-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Facts: </span>The petitioner in this writ petition calls in question the order dated 1-12-2017 passed by the 1st respondent/Reserve Bank of India transferring the  petitioner  from Bangalore to Jammu.<br></h4><h4>13.<span style=\"white-space:pre\">	</span>Before embarking upon the consideration of the facts of the case at hand, I feel it germane to notice the scope judicial review on the orders of transfer and  the line of law laid down by the Apex Court with regard  to parameters of judicial review in that regard  .  The Apex Court right from the year 1986 in the case of B.Varada Rao has laid down as to when and on what grounds , orders of transfer can be interfered with . The apex Court in the case of B. Varadha Rao v. State of Karnataka, reported in (1986) 4 SCC 131 has held as follows:<br></h4><h4 style=\"margin-left: 25px;\"><i>“5. It is no doubt true that if the power of transfer is abused, the exercise of the power is vitiated. But it is one thing to say that an order of transfer which is not made in public interest but for collateral purposes and with oblique motives is vitiated by abuse of powers, and an altogether different thing to say that such an order per se made in the exigencies of service varies any condition of service, express or  implied, to the disadvantage of the concerned government servant. The petitioner  who appeared in person placed reliance, as he did in the High Court, on the decision of the Bombay High Court in Seshrao Nagorao Umap v. State of Maharashtra [(1985)  2  LLJ  73  (Bom)].  We  do  not see how the decision can be of any avail to the question at issue. The learned Judges were  dealing with a petition under Article 226 of the Constitution by which a Medical Officer challenged his order of transfer on the ground that it was not only mala fide but was issued in colourable exercise of power  and  therefore wholly illegal and void. It was contended by the petitioner that he was being transferred contrary to the government policy with a view to accommodate one Dr R.P. Patil because of the political influence he wielded. In  allowing  the writ petition, the learned Judges observed that it was no doubt true that the  government  has power to transfer its  employees employed in a transferable post but this power has to be exercised bona fide to meet the exigencies of the administration. If the power is exercised mala fide, then obviously the order of transfer is liable to be struck down. They relied on the  observations made by this Court in E.P. Royappa v. State  of  T.N. [(1974)  4SCC  3 : 1974 SCC  (L&S)  165 : AIR  1974  SC  555 : (1974)  2 SCR 348] for the positivistic view that ‘equality is antithetic to arbitrariness’ and held that the observations equally apply to the  policy regarding the transfer of public servants. It was observed: “It is an accepted principle that in public service transfer is an incident of  service.  It  is  also an implied condition of service and appointing authority has a wide discretion in the matter. The government is the best judge to decide how to distribute and  utilise  the  services of its employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such  transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose,  that is to accommodate another person for undisclosed reasons. It is the basic principle of  rule of law and good administration, that even administrative actions should be just and fair.” The observation that transfer is also an implied condition of service is just an observation in passing. It certainly cannot be relied upon in support of the contention that an order  of  transfer ipso facto varies to the disadvantage of a government servant, any of his conditions of service making the impugned order appealable under Rule 19(1)(a) of the Rules.<br>6. One cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a government servant and drive him  to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It therefore follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the government is not conducive to good administration. It creates vested interest and therefore we find that even from the British times the general  policy  has  been to restrict the period of posting for a definite period. We wish to add that the position of Class  III and Class IV employees stand on a different footing. We trust that the government will keep these considerations in view while making an order of transfer.”</i><br></h4><h4>A little later the Apex court in the case of Shilpi Bose (Mrs) v. State of Bihar, reported in 1991 Supp (2) SCC 659 has held as follows:</h4><h4 style=\"margin-left: 25px;\"><i>“4. In our opinion, the courts should  not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground  of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in  violation  of  executive instructions or  orders,  the  courts  ordinarily  should  not  interfere  with  the  order  instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders.”<br></i></h4><h4>Subsequently, the Apex Court in the case of Rajendra Singh v. State of U.P., reported in (2009) 15 SCC 178 has observed as follows:</h4><h4 style=\"margin-left: 25px;\"><i>“8. A government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place  or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires (see State of U.P. v. Gobardhan Lal [(2004) 11 SCC 402: 2005 SCC (L&S) 55] , SCC p. 406, para 7).<br>9. The courts are always reluctant in interfering with the transfer of an  employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In Shilpi Bose v. State of Bihar [1991 Supp (2) SCC 659 : 1992  SCC  (L&S)  127  :  AIR  1991  SC 532] this Court held: (SCC p. 661, para 4) “4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made  in violation  of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order  instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders.”</i></h4><h4>14. Therefore, in the light of the afore-extracted judgments of the Apex Court, the scope  of  judicial  review with regard to orders of transfer are three fold  viz., -</h4><h4 style=\"margin-left: 25px;\"><i>(i)<span style=\"white-space:pre\">	</span>that if it is in violation of statutory rules/operative guidelines or circulars<br>(ii)<span style=\"white-space:pre\">	</span>that if the order of transfer suffers from malafides or is a product of colourable exercise of power;<br>(iii)<span style=\"white-space:pre\">	</span>that in exceptional cases  of  extreme hardship.</i></h4><h4>15. In the light of the Apex Court holding that transfer would get vitiated on account of malafides, it is germane to consider what are the malafides qua an order of transfer. There can be no precise definition or interpretation of malafides. Therefore, the dictionary meaning of malafides as obtaining in Black’s law dictionary is considered. Black’s law dictionary defines ‘malafide’ to be an intentionally doing of a wrong without just cause or excuse and it is done with an intention to inflict an injury or  under  such circumstances that would imply an evil motive to  the  act.<br>16. Malafide has two components – malice in law and malice in fact. For an action to be one of  malice  in  law, one need not impute personal malice by making a particular person a party to the proceedings. If personal malice is alleged,  then  it  becomes  malice  in  fact  for which  a  person  against  whom  malice  is  alleged  has  to be a party to the proceedings. Therefore, the order of transfer in the case at hand is to be considered on the touchstone of malice in law. <br>17.<span style=\"white-space:pre\">	</span>Malafides, colourable exercise of power and malice in law are interpreted  by  the  Apex  Court.  The  Apex Court in the case of STATE OF MYSORE v. P.R. KULKARNI  reported  in  (1973)  3  SCC  597  has  held  as follows:-</h4><h4 style=\"margin-left: 25px;\"><i>“7. It was objected that the High Court of Mysore had erroneously characterised such a use of the power of reversion as a “misuse of power” which “invited the criticism” that it was an “artifice” to eliminate the respondents from the field of officiating operators in order that others left in the State of Bombay might get their places. In other words, the reversion orders may have sprung from an oblique motive in addition to having resulted from the misapprehension that officers on the constabulary of certain District had necessarily to be allocated to Mysore and that officials of the Bombay State could gauge the needs of the Mysore State. Learned Counsel for the State of Mysore  has not been able  to  show us that the findings of the Mysore High Court, which meant that the power of reversion had been used for a purpose for which it could not have been intended, were erroneous. “Misuse of power” or “mis-application of power” or a Detournement de Puvoir” (as it is called in French Administrative Law), are terms correctly employed to describe the use of a power in this illegal fashion. It was not necessary for the respondents to go so far as to establish that such misuse took place with the deliberate object of benefiting others at the expense of the respondents, although learned Judges of the High Court were inclined to hold, not without good reasons, that such an object may also be there. It was enough to  prove, as  the respondents succeeded in doing, that the power of reversion was used for a collateral or legally extraneous purpose.</i></h4><h4 style=\"margin-left: 25px;\">The Apex Court in the case of State of Punjab v. Gurdial Singh, reported in (1980) 2 SCC 471 has held as follows :<br><i>“9. The question, then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power — sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfactions —  is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is  bad  where the true object is to reach an end different from  the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When  the custodian of power is influenced  in  its  exercise  by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and  is  undeceived  by  illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated: “I repeat . . . that all power is a trust — that we are accountable for its exercise — that, from the people, and for the people, all springs, and all must exist”. Fraud on power voids the order if it is not exercised bona fide for the  end  designed.  Fraud in this context is not equal to  moral  turpitude and embraces all cases in which the action impugned is to effect some object  which  is  beyond the purpose and intent of the power, whether this be malice-laden or even benign.  If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the  power or extraneous to the statute, enter the verdict or impel the action, malafides or fraud on power vitiates the acquisition or other official act.”</i></h4><h4>21. Transfer of employees in the Bank is regulated by a Circular issued by the Bank viz., “Master Circular  on Transfer and Placement Policy for Officers and Facilities Associated with Transfer”. The case on hand will have to be considered qua the Master Circular on Transfer. Clause 3.7 of the said Circular deals with repatriation before retirement.</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">23.The basis requirement of transfer in service is  it should be in public interest or in the wake of administrative exigency or a sudden exigency arising to which the services of a particular employee becomes indispensable. The afore-extracted order of transfer neither speaks of any administrative exigency or impending urgency and nor displays that it is in public interest or Bank’s interest. Therefore, the order of transfer is not only in violation of the  Master  Circular but is also in violation of the basic requirement of transfer of personnel. If it is neither in the wake of administrative exigency nor in public interest, such transfer becomes a transfer to achieve collateral ends.</b><br><b style=\"background-color: rgb(255, 255, 0);\">24.<span style=\"white-space:pre\">	</span>The link in the chain of events narrated hereinabove would in unmistakable terms indicate that the transfer of the petitioner did suffer from malafides  or malice in law. </b>The allegations were concerning her functioning in the CCTV Console Room and the CBI had initiated investigation before whom the petitioner had given her statement. Though this Court is not pronouncing upon the veracity of the statement or the necessity or otherwise, but the fact remains that the petitioner had given her statement  on  23.10.2017  and on 01.12.2017. What can be gathered from the sudden springing of the impugned order of transfer on  01.12.2017 qua the events narrated above is that the petitioner was probably transferred to forestall further statements. Though direct inference to this is not documented, the facts narrated hereinabove lead to such an unmistakable inference in the light  of  an unusual order of transfer passed against the petitioner.<br>29. In the wake of such submission, this Court while keeping the writ petition pending directed the petitioner to submit a representation to give a quietus to the problem. The Bank in reply has turned down the representation as well. Therefore, the  narration  of events would lead to an unmistakable conclusion that the power of transfer vested in the Bank is used neither for administrative exigency nor for Bank’s interest, but for purposes other than confermation of such power.<br>(i) The writ petition is allowed.<br>(ii) The order of transfer dated 1.12.2017 is quashed.<br>(iii) The period between the order of transfer and the date of superannuation shall  be  treated as service for all benefits including arrears of wages and other incidental consequential benefits.<br>(iv) The pension of the petitioner shall be reworked in terms of clause (iii) of the order and paid to the petitioner along with arrears of pension.<br>(v) This order shall be complied with by the respondents within two months from the  date of receipt of copy of this order.<br><br><br><br><br> <br><br></h4>', '7db6ea3dba31aa83f30099df0b99840b.jpg', 'e87115bd67fa6e8aacc0996010f9ac7b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-22', 1, '', '', '2021-02-26 00:59:28', '2021-02-26 01:03:38'),
(508, 'wVy47cs1BnoefulZaKmRWyIdY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Educational Institutions. Fee structure. Unaided professional institutions have the autonomy to decide on the fee to be charged subject to the fee not resulting in profiteering or collection of capitation fee. Supreme Court 25 Feb 2021', '<h4><table class=\"table table-bordered\" style=\"font-family: -apple-system, BlinkMacSystemFont, \" segoe=\"\" ui\",=\"\" roboto,=\"\" \"helvetica=\"\" neue\",=\"\" arial,=\"\" \"noto=\"\" sans\",=\"\" sans-serif,=\"\" \"apple=\"\" color=\"\" emoji\",=\"\" \"segoe=\"\" ui=\"\" symbol\",=\"\" emoji\";=\"\" font-size:=\"\" 0.875rem;=\"\" font-weight:=\"\" 400;=\"\" text-align:=\"\" left;\"=\"\"></table></h4><h4 style=\"text-align: center;\">Najiya Neermunda &amp; Anr vs Kunhitharuvai Memorial Charitable Trust &amp; Ors.&nbsp;</h4><h4 style=\"text-align: center;\">Civil Appeal 606 - 616 of 2021 decided on 25 February 2021.</h4><h4 style=\"text-align: center;\">Justice L.Nageswara Rao and Justice S. Ravindra Bhat<span style=\"color: rgb(0, 0, 0); font-size: 1.3125rem;\">.</span><br></h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/16021/16021_2020_31_1501_26590_Judgement_25-Feb-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/16021/16021_2020_31_1501_26590_Judgement_25-Feb-2021.pdf</a></h4><h4>8.The managements of private self-financing colleges stressed on the fact that they have a right guaranteed under Article 19 (1)(g) of the Constitution of India which can be curtailed only by reasonable restrictions. They have a right to establish and administer an institution without any undue interference. The case canvassed on behalf of the managements is that the power of the Committee is restricted to scrutinize the proposals made by them for charging the fee. No doubt, the managements should not be permitted to charge excessive fee but reasonable surplus is permitted under Section 11 of the 2017 Act. Expenditure involved in running an institution along with reasonable profit is permitted by the statute. There is no error committed by the High Court in directing the audited accounts to be considered for fee fixation. ....The High Court was of the firm opinion that the Committee ought to have considered the matter de novo and fixed the fee after giving an opportunity to the managements and after considering the proposals again. ...Nonetheless, the High Court held that the Committee should closely scrutinize the fee suggested by the managements to examine if fee proposed was not excessive and to eliminate any element of profiteering or collection of capitation fee.<br></h4><h4>9. The other issue that requires to be considered relates to the restrictions placed by the High Court in the matter of fixation of fee by the Committee. We find force in the submission of Mr. Jaideep Gupta, learned Senior Counsel appearing on behalf of the State, that no fetter can be placed on the exercise of power for fee fixation by the Committee, which shall be in accordance with the factors that are mentioned in Section 11 of the 2017 Act. The High Court committed an error in directing the Committee to take into account only audited balance sheets, and provisional profit and loss accounts in the absence of audited balance sheets, to fix the fee. <b style=\"\"><span style=\"background-color: rgb(255, 255, 0);\">Though we are in agreement with the submission made on behalf of the managements that the fee as proposed by them should be considered by the Committee, it is no more res integra that the right conferred on the institutions to fix fee for professional courses is subject to regulation. </span></b><b style=\"background-color: rgb(255, 255, 0);\">It need not be reiterated that unaided professional institutions have the autonomy to decide on the fee to be charged, subject to the fee not resulting in profiteering or collection of capitation fee.</b> Regulation of fee is within the domain of the Committee which shall ensure that the fee is non-exploitative and reasonable. There is no need to repeat the judgments of this Court, especially P.A. Inamdar &amp; Ors. (2005) 6 SCC 537, which have been copiously referred to by the High Court in the 3 rounds of litigation to indicate the principles to be followed for fixation of fee in private medical colleges.&nbsp;</h4>', '68b953f71a3c099cd380596387076840.png', '33da851d7a0359ada5b24ebf6316840a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-25', 1, '', '', '2021-02-26 03:12:34', '2021-02-26 03:22:58');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(509, 'Xs9rA8XDMBljf3g5vD9l2yplc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Unusual transfer of employee which smacks of malafides can not be sustained. Malafides and Malice in Law discussed. Karnataka High Court. 22 Feb 2021 ', '<h4>Shobha N Rathi vs The Reserve Bank of India and others. Writ Petition58446 of 2017 decided on 22 February 2021.&nbsp;</h4><h4>Judgment <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/368161/1/WP58446-17-22-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/368161/1/WP58446-17-22-02-2021.pdf</a><br></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 15. In the light of the Apex Court holding that transfer would get vitiated on account of malafides, it is germane to consider what are the malafides qua an order of transfer. There can be no precise definition or interpretation of malafides. Therefore, the dictionary meaning of malafides as obtaining in Black’s law dictionary is considered. Black’s law dictionary defines ‘malafide’ to be an intentionally doing of a wrong without just cause or excuse and it is done with an intention to inflict an injury or&nbsp; under&nbsp; such circumstances that would imply an evil motive to&nbsp; the&nbsp; act.</h4><h4>16. Malafide has two components – malice in law and malice in fact. For an action to be one of&nbsp; malice&nbsp; in&nbsp; law, one need not impute personal malice by making a particular person a party to the proceedings. If personal malice is alleged,&nbsp; then&nbsp; it&nbsp; becomes&nbsp; malice&nbsp; in&nbsp; fact&nbsp; for which&nbsp; a&nbsp; person&nbsp; against&nbsp; whom&nbsp; malice&nbsp; is&nbsp; alleged&nbsp; has&nbsp; to be a party to the proceedings. Therefore, the order of transfer in the case at hand is to be considered on the touchstone of malice in law.&nbsp;</h4><h4>17. Malafides, colourable exercise of power and malice in law are interpreted&nbsp; by&nbsp; the&nbsp; Apex&nbsp; Court.&nbsp; The&nbsp; Apex Court in the case of State of Mysore vs P.R. Kulkarni reported&nbsp; in&nbsp; (1973)&nbsp; 3&nbsp; SCC&nbsp; 597&nbsp; has&nbsp; held&nbsp; as follows:-</h4><h4 style=\"margin-left: 25px;\"><i>“7. It was objected that the High Court of Mysore had erroneously characterised such a use of the power of reversion as a “misuse of power” which “invited the criticism” that it was an “artifice” to eliminate the respondents from the field of officiating operators in order that others left in the State of Bombay might get their places. In other words, the reversion orders may have sprung from an oblique motive in addition to having resulted from the misapprehension that officers on the constabulary of certain District had necessarily to be allocated to Mysore and that officials of the Bombay State could gauge the needs of the Mysore State. Learned Counsel for the State of Mysore&nbsp; has not been able&nbsp; to&nbsp; show us that the findings of the Mysore High Court, which meant that the power of reversion had been used for a purpose for which it could not have been intended, were erroneous. “Misuse of power” or “mis-application of power” or a Detournement de Puvoir” (as it is called in French Administrative Law), are terms correctly employed to describe the use of a power in this illegal fashion. It was not necessary for the respondents to go so far as to establish that such misuse took place with the deliberate object of benefiting others at the expense of the respondents, although learned Judges of the High Court were inclined to hold, not without good reasons, that such an object may also be there. It was enough to&nbsp; prove, as&nbsp; the respondents succeeded in doing, that the power of reversion was used for a collateral or legally extraneous purpose.”</i></h4><h4>The Apex Court in the case of State of Punjab v. Gurdial Singh, reported in (1980) 2 SCC 471 has held as follows :</h4><h4 style=\"margin-left: 25px;\"><i>“9. The question, then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power — sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfactions —&nbsp; is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is&nbsp; bad&nbsp; where the true object is to reach an end different from&nbsp; the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When&nbsp; the custodian of power is influenced&nbsp; in&nbsp; its&nbsp; exercise&nbsp; by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and&nbsp; is&nbsp; undeceived&nbsp; by&nbsp; illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated: “I repeat . . . that all power is a trust — that we are accountable for its exercise — that, from the people, and for the people, all springs, and all must exist”. Fraud on power voids the order if it is not exercised bona fide for the&nbsp; end&nbsp; designed.&nbsp; Fraud in this context is not equal to&nbsp; moral&nbsp; turpitude and embraces all cases in which the action impugned is to effect some object&nbsp; which&nbsp; is&nbsp; beyond the purpose and intent of the power, whether this be malice-laden or even benign.&nbsp; If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the&nbsp; power or extraneous to the statute, enter the verdict or impel the action, malafides or fraud on power vitiates the acquisition or other official act.”</i></h4><h4>The aforesaid judgments were interpreting what would&nbsp; be malafides, misuse of power or misapplication of power.&nbsp;</h4><h4>18.<span style=\"white-space:pre\">	</span>Later, the Apex Court in the case of Ratnagiri Gas and Power (P) Ltd. v. RDS Projects Ltd., (2013) 1 SCC 524 has elucidated as to what would be malice in fact and malice in law. The Apex Court has held as follows:</h4><h4 style=\"margin-left: 25px;\"><i>“30.&nbsp; Coming&nbsp; then&nbsp; to the&nbsp; question&nbsp; whether the action&nbsp; taken&nbsp; by&nbsp; the&nbsp; appellant RGPPL&nbsp; was&nbsp; vitiated by malice in law, we need hardly mention that in cases involving malice in law the administrative&nbsp; action&nbsp; is&nbsp; unsupportable on the touchstone of an acknowledged or acceptable principle and can be avoided even when the decision maker may have had no&nbsp; real or actual malice at&nbsp; work&nbsp; in&nbsp; his&nbsp; mind.&nbsp; The&nbsp; conceptual&nbsp; difference&nbsp; between&nbsp; the&nbsp; two&nbsp; has been succinctly stated in the following paragragh by&nbsp; Lord&nbsp; Haldane&nbsp; in Shearer v. Shields [1914&nbsp; AC 808 (HL)] quoted with approval by this Court in ADM,&nbsp; &nbsp;Jabalpur v. Shivakant&nbsp; &nbsp;Shukla [(1976)&nbsp; &nbsp;2 SCC 521 : AIR 1976 SC 1207] : (SCC p. 641, para 317)</i></h4><h4 style=\"margin-left: 50px;\">“317. … ‘Between “malice in fact” and “malice in law” there is a broad distinction which is not peculiar to any system of jurisprudence.The person who&nbsp; inflicts&nbsp; a wrong or an injury upon any person in contravention of the law&nbsp; is&nbsp; not&nbsp; allowed&nbsp; to say that he did so with an innocent mind. He&nbsp; is taken to know the law and can only act within the law. He may, therefore, be guilty&nbsp; &nbsp;of “malice in law”, although, so far as the&nbsp; state of his mind was concerned he acted ignorantly, and in that sense innocently. “Malice in fact” is a different thing. It means&nbsp; an&nbsp; actual&nbsp; malicious&nbsp; intention&nbsp; on&nbsp; the&nbsp; part&nbsp; of&nbsp; the&nbsp; person who has done the wrongful act.’” (Shearer case [1914 AC 808 (HL)] , AC pp. 813-14)</h4><h4 style=\"margin-left: 25px;\"><i>32.<span style=\"white-space:pre\">	</span>To the same effect is the recent decision of this<span style=\"white-space:pre\">	</span>Court in Ravi Yashwant Bhoir v. Collector [(2012)&nbsp; 4&nbsp; SCC&nbsp; 407]&nbsp; wherein&nbsp; this Court observed: (SCC p. 431, paras 47-48)</i></h4><h4 style=\"margin-left: 50px;\">“Malice in law 47.<span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">This Court has consistently held that the State is under an obligation to act fairly without ill will or malice in fact or in law. Where malice is attributed to the State, it&nbsp;</span>can never be a case of personal ill&nbsp; will&nbsp; or&nbsp; spite on the part of&nbsp; the&nbsp; State.&nbsp; ‘Legal&nbsp; malice’ or ‘malice in law’ means something done without lawful excuse. It is&nbsp; a&nbsp; deliberate&nbsp; act&nbsp; in disregard to the rights of others. It is an act which is&nbsp; taken&nbsp; with&nbsp; an oblique or indirect object. It&nbsp; is an act done wrongfully and wilfully without reasonable or probable cause,&nbsp; and&nbsp; not&nbsp; necessarily&nbsp; an act done from ill feeling and spite.</h4><h4 style=\"margin-left: 25px;\"><i>48.<span style=\"white-space:pre\">	</span>Malafide exercise of power does not imply any moral turpitude. It means exercise of statutory power for ‘purposes foreign to those for which it is in&nbsp; law&nbsp; intended’.&nbsp; It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where&nbsp; intent&nbsp; is&nbsp; manifested by its injurious acts. Passing an order for unauthorised purpose constitutes malice in law.<span style=\"white-space:pre\">	</span>(See ADM, Jabalpur v. Shivakant Shukla [(1976)&nbsp; 2&nbsp; SCC&nbsp; 521&nbsp; :&nbsp; AIR&nbsp; 1976&nbsp; SC&nbsp; 1207], Union of&nbsp; India v. V. Ramakrishnan [(2005) 8 SCC 394:2005 SCC (L&amp;S) 1150] and Kalabharati Advertising v. Hemant Vimalnath&nbsp; &nbsp; &nbsp; Narichania [(2010)&nbsp; 9 SCC&nbsp; 437&nbsp; : (2010) 3&nbsp; SCC (Civ) 808 : AIR 2010 SC 3745])”</i></h4><h4><b style=\"background-color: rgb(255, 255, 0);\">24. The link in the chain of events narrated hereinabove would in unmistakable terms indicate that the transfer of the petitioner did suffer from malafides&nbsp; &nbsp;or malice in law. The allegations were concerning her functioning in the CCTV Console Room and the CBI had initiated investigation before whom the petitioner had given her statement. Though this Court is not pronouncing upon the veracity of the statement or the necessity or otherwise, but the fact remains that the petitioner had given her statement&nbsp; on&nbsp; 23.10.2017&nbsp; and on 01.12.2017. What can be gathered from the sudden springing of the impugned order of transfer on&nbsp; 01.12.2017 qua the events narrated above is that the petitioner was probably transferred to forestall further statements. Though direct inference to this is not documented, the facts narrated hereinabove lead to such an unmistakable inference in the light&nbsp; of&nbsp; an unusual order of transfer passed against the petitioner.</b></h4><h4>25. The petitioner is transferred at her own cost from Bangalore to Jammu though there was no request for any such transfer. She was&nbsp; directed to&nbsp; be&nbsp; relieved&nbsp; on 1st December 2017; the date on which the order was passed; she was directed to hand&nbsp; over&nbsp; Bank’s&nbsp; flat No.609 immediately; she was not given joining&nbsp; time&nbsp; even as is available to an officer who is transferred ; she&nbsp; is directed to report at Jammu in five days time by availing special casual leave,&nbsp; in one&nbsp; single&nbsp; spell in lieu&nbsp; of joining time. An unusual transfer of this kind , when comes up for judicial review, this Court&nbsp; under&nbsp; Article 226 of the Constitution cannot turn a blind eye on the specious plea of the respondent that it is a routine order of transfer and such&nbsp; transfer&nbsp; being&nbsp; incidence of service it should not be interfered with.</h4><h4>&nbsp;</h4><h4><br></h4><h4><br></h4><h4><br></h4>', 'a87f93ed975e406c6aad6dc5f5f4f21e.jpg', 'bf2c2ddcead2b267fafbb522e659cb15.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-22', 1, '', '', '2021-02-26 17:49:13', '2021-02-26 18:46:51'),
(510, 'tsIrQ1pmGUGFRyQje71HOhZQQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Juvenile Act 2000. Effect on pending criminal proceedings. Where accused was above 16 but below 18 years on the date of crime the proceedings continue. If found guilty the court would refer the matter to the Board for orders. Supreme Court 25 Feb 2021', '<h4>Devilal and others vs State of Madhya Pradesh.<br></h4><h4>Criminal Appeal 989 of 2007 decided on 25 February 2021. </h4><h4>Justice Uday Umesh Lalit, Justice Indira Banerjee, Justice K.M. Joseph.</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Judgment Link</span>:<a href=\"https://main.sci.gov.in/supremecourt/2006/32731/32731_2006_34_1501_26599_Judgement_25-Feb-2021.pdf\" target=\"_blank\"> https://main.sci.gov.in/supremecourt/2006/32731/32731_2006_34_1501_26599_Judgement_25-Feb-2021.pdf</a></h4><h4><span style=\"font-size: 1.3125rem;\"><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs: </span>15. The incident in the present case had occurred in July, 1998 </span>when the Juvenile Justice Act, 1986 (‘the 1986 Act’, for short) was in force. The age of juvenility for a male juvenile under the 1986 Act was 16 years. Since Amrat Ram was 16 years 11 months as on the date when the offence was committed, he was certainly not a juvenile within the meaning of 1986 Act. However, the age of juvenility was raised to 18 years in terms of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (‘the 2000 Act’, for short). Section 20 of the 2000 Act dealing with proceedings pending against a juvenile on the date the 2000 Act came into force, states:</h4><h4 style=\"margin-left: 25px;\"><i>“20. Special provision in respect of pending cases.- </i></h4><h4 style=\"margin-left: 25px;\"><i>Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence:<br>Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.<br>Explanation.- In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (1) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.”</i><br></h4><h4>16. Where an offender was more than 16 years of age on the day when the incident had occurred (and therefore was not a juvenile within the meaning of the 1986 Act) but was less than 18 years of age on the day of the incident, the question as to what extent benefit can be given in terms of the provisions of the 2000 Act, was considered by this Court in some cases. <br>17. Recently, in Satya Deo alias Bhoorey vs. State of Uttar Pradesh (2020) 10 SCC 555, this Court observed:-</h4><h4 style=\"margin-left: 25px;\"><i>“19. This position of law and principle in Mumtaz case (2016) 11 SCC 786 was affirmed by this Court for the first time in Hari Ram v. State of Rajasthan (2009) 13 SCC 211 in the following words: (SCC p. 223, para 39)</i></h4><h4 style=\"margin-left: 50px;\"><i>“39. The Explanation which was added in 2006, makes it very clear that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, the determination of juvenility of a juvenile would be in terms of clause (l) of Section 2, even if the juvenile ceased to be a juvenile on or before 1-4-2001, when the Juvenile Justice Act, 2000, came into force, and the provisions of the Act would apply as if the said provision had been in force for all purposes and for all material times when the alleged offence was committed. In fact, Section 20 enables the court to consider and determine the juvenility of a person even after conviction by the regular court and also empowers the court, while maintaining the conviction, to set aside the sentence imposed and forward the case to the Juvenile Justice Board concerned for passing sentence in accordance with the provisions of the Juvenile Justice Act, 2000.”</i></h4><h4>20. In light of the legal position as expounded above and in the aforementioned judgments, this Court at this stage can decide and determine the question of18. It is thus clear that, even if it is held that Amrat Ram was guilty of the offence with which he was charged, the matter must be remitted to the jurisdictional Juvenile Justice Board for determining appropriate quantum of fine that should be levied on Amrat Ram.<br><br></h4><p><br></p>', '56a2690c7c00ff0dcc8c4f1520968b12.jpg', '8269712b3670a2dfa5fa86a3a8939b73.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-25', 1, '', '', '2021-02-26 19:45:46', '2021-02-27 01:10:11'),
(511, 'VjYpHKDHuwuYGowWp7l7rw424', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Section 482. When prosecution prima facie establishes receipt of huge money by son relatable to crime of corruption by the father defence of private transaction cannot be accepted to quash proceedings. Karnataka High Court.', '<h4>Gagan Baderia vs State of Karnataka.&nbsp;</h4><h4>Writ Petition 44840 of 2019 decided on 19 February 2021.&nbsp;</h4><h4>Justice H.P.Sandesh</h4><h4> </h4><h4><br></h4><h4>2. The factual matrix of the case is that this petitioner has been arraigned as accused No.2 on the ground that the father of the petitioner belongs to the Indian Administrative Service and he was posted as a Commissioner and Director of Mines and Geology on 12.9.2005. This petitioner as the son of the Government Servant had accepted an amount of Rs.20,00,000/- from accused No.2 on behalf of his father in order to make the official favour to accused No.1 by way of granting permission for shifting the mines to the tune of 1,17,800 metric tonns of iron ore without the statutory clearance by the Central Government which is mandatory to operate the mining area. Hence, the above offences are invoked.<br>11. Having heard the learned counsel for the petitioner and also learned counsel appearing for the respondent and also on perusal of the material available on record, the main contention of the prosecution is that this petitioner has indulged in collecting the amount of Rs.20,00,000/- i.e., Rs.10,00,000/- each twice. Having perused the material on record, the petitioner also not disputes the fact of receipt of the amount of Rs.20,00,000/- on different dates with two different cheques. The contention of the petitioner before this Court is that the amount has been received in connection with music work and the first accused is also not disputing the transfer of the amount in favour of this petitioner. But it is the contention of the petitioner that the said transaction is in respect of other private transaction. The fact as to whether the said amount has been received in respect of other transaction or in connection with music work, is the aspect which has to be considered during the course of the trial. The Court prima facie finds that the amount of Rs.20,00,000/- was transferred in favour of the petitioner herein by accused No.1.</h4><h4>15. Having perused the grounds urged in the petition, objections statement and rejoinder, all the facts has to be decided in a trial and defence cannot be appreciated in the proceedings under Section 482 of Cr.P.C. No doubt, the learned counsel for the petitioner brought to the notice of this Court that accused No.1 made the statement with regard to the transfer of money in favour of accused No.2 contending that the same is in respect of the private transaction. When the prosecution relies upon the material with regard to the transportation of mines and permitting the transportation of mines without the statutory clearance and so also the material with regard to the transfer of money to the account of this petitioner, who being the son of accused No.3, all the disputed questions have to be considered only after conducting the full fledged trial. Hence, I do not find any merit in the petition to invoke Section 482 of Cr.P.C. to quash the proceedings.<br><br></h4><h4>The petition is dismissed.<br><br><br><br></h4><div><br></div>', '05b7771808bc5909d20784abe545caaa.jpeg', 'bd04be6a0c94c6fe044609f1d77d2a2f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-02', 1, '', '', '2021-02-26 20:45:17', '2023-02-02 12:22:24'),
(512, 'z659c6I3c06GsImwRjAcrVvGx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Section 138. Non mentioning of transaction date in the complaint is not fatal to the case when evidence is led to corroborate the transaction details. Karnataka High Court. ', '<h4>G.L.Jagadish vs Vasantha Kokila. </h4><h4>Criminal Appeal 176 of 2011 decided on 19 February 2021. </h4><h4>Justice H.P. Sandesh. <br></h4><h4><br> 21.Having perused the material available on record, though the complainant has not mentioned the date of the loan transaction, but it is emerged in the evidence that both of them were cordial and having acquaintance for a period of 20 years.  It is important to note that the cheque issued in favour of the complainant is of the year 2004. The accused counsel himself has got elicited in the cross-examination of P.W.1 that the complainant had purchased three buses in the year 2003 specifically mentioning the date 21.08.2003, 08.08.2003 and 07.07.2003 and also got marked the document Ex.D.1 confronting the same. P.W.1 admitted that the son of the accused stood as surety. Hence, it is clear that both the families were cordial and the very reasoning given by the Appellate Court that there is no loan document between the parties except the cheque is erroneous and failed to take note of the relationship between the parties. When such being the case, when the cheque was issued, the Appellate Court ought not to have come to the conclusion that not obtaining other documents from the accused, is a ground for acquittal. The Appellate Court committed an error in coming to such a conclusion.<br></h4><h4>22.Insofar as the source of income of the complainant is concerned, it is the finding of the Appellate Court that no documents are produced. When P.W.1 was cross-examined, the accused counsel himself suggested with regard to the financial capacity of the complainant for having purchased three buses in 2003. The Appellate Court ought not to have come to such a conclusion that the complainant is not having source of income. It is important to note that the Appellate Court while reversing the finding of the Trial Court gave the reason that P.W.1 has admitted that the son of the accused has continued the business after the death of his father. The main case of the complainant  is that the accused was having financial difficulties and hence the accused had approached the complainant. It is important to note that in the cross-examination of D.W.1 though the accused claims that they are having 35 buses and not having any financial constraint, in the cross-examination admitted that they have availed the loan from Sri Matha Mahila Co-operative Bank. Though at the first instance denied the suggestion that buses are pledged and OD facility was taken, on confrontation of the document Ex.P.9, the accused admitted in the cross-examination that in 2005 D.W.1 was due for a sum of Rs.5,00,000/- in favour of Sri Matha Mahila Co-operative Bank. It is also admitted that while sending her son to Foreign, OD facility was taken. The Appellate Court failed to take note of the admissions elicited from the mouth of accused. Though the accused claims that they are financially strong, but the fact that they were financially having problems is not considered by the Appellate Court.<br></h4><h4>24. The contention of the learned counsel for the accused is that FSL report is in favour of the accused, but the same is in respect of the remaining hand writings available on the cheque. The Apex Court in the judgment in the case of Uttam Ram (supra) has categorically held that if any contents are in different hand writing and if defence is taken as cheque was lost, the burden lies on the accused to prove the same. The Apex Court in the case of Bir Singh v. Mukesh Kumar reported in (2019) 4 SCC 197 held that even if other writings  are in different hand writing, the same cannot be a ground to acquit the accused. In the case of Uttam Ram  (supra),  the Apex Court also held that if defence is taken that cheque was lost, the same has to be proved. But in the case on hand, it has to be noted that the complaint was given subsequent to the receipt of legal notice and not prior to the legal notice and also it is categorically admitted that while lodging the complaint, the cheque number is also not mentioned. It is also suggested to<br>D.W.1 in the cross-examination that one Sujay had filed a case against the accused and the accused admits the same. When such being the case, when the complaint was given subsequent to the receipt of legal notice, the very defence that cheque was lost cannot be accepted.<br></h4><h4>25.<span style=\"white-space:pre\">	</span>The principles laid down in the judgments referred  by the accused counsel regarding no date of loan transaction and also presumption cannot be drawn in favour of the complainant cannot be accepted. In the case on hand, though answers are elicited from the mouth of P.W.1 for having not mentioned the date of transaction, the cheque was of the year 1990, that itself is not rebutting the evidence of the complainant. This Court  does not find any preponderance of probabilities in favour of the accused having perused both oral and documentary evidence placed on record except non-mentioning of the date of loan transaction. This Court has already given the finding that the complainant and accused family are having acquaintance from the last 20 years and the transaction was taken place. Admittedly, between the complainant and the accused there were financial transaction and the fact that the accused was having financial constraints for sending her son to foreign is admitted. The Appellate Court ought to have appreciated the evidence in a right perspective and the same has not been done. The reasoning assigned by the Appellate Court is erroneous and the same is not based on the material available on record. The judgments relied upon by the learned counsel for the accused are not applicable to the facts of the case in view of the ratio laid down by the Apex Court in the case of Uttam Ram (supra) and  in the case of Bir Singh (supra). Hence, it requires interference of this Court.<br></h4><h4>(ii)<span style=\"white-space:pre\">	</span>The impugned order of acquittal, dated 06.07.2010 passed in Crl.A.No.470/2009 is hereby set aside.<br>(iii)<span style=\"white-space:pre\">	</span>The order of the Trial Court dated 27.05.2009 passed in C.C.No.17229/2004, is restored.  </h4><h4>The accused is directed to pay the amount within eight weeks and if she fails to make the payment, the Trial Court is directed to proceed in accordance with law.<br></h4>', 'a496c689f9a0284932a43771ace31789.JPG', '103234ee44a49298e4c05ae1e115edf8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-12', 1, '', '', '2021-02-26 22:41:26', '2023-01-12 17:48:03'),
(513, '36ZSVbIZiUbxfxAJRDPGkjGuT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Divorce. Wife making repeated defamatory complaints to superiors of husband affecting his career and harming his reputation. Husband is entitled to divorce on the ground of Cruelty. Supreme Court. 26 Feb 2021 ', '<h4>Joydeep Majumda vs Bharti Jaiswal Majumdar. Civil Appeal 3786-3787 of 2020 decided on 26 February 2021. Justice Sanjay Kishan Kaul and Justice Dinesh Maheshwari. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/28114/28114_2019_43_1501_26512_Judgement_26-Feb-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/28114/28114_2019_43_1501_26512_Judgement_26-Feb-2021.pdf</a></h4><h4><span style=\"font-size: 1.3125rem;\"><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs: </span></span>10. For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. In other words, the wronged party cannot be expected to condone such conduct and continue to live with his/her spouse. The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party. In Samar Ghosh Vs. Jaya Ghosh (2007) 4 SCC 511, this Court gave illustrative cases where inference of mental cruelty could be drawn even while emphasizing that no uniform standard can be laid down and each case will have to be decided on its own facts.</h4><h4>11. The materials in the present case reveal that the respondent had made several defamatory complaints to the appellant’s superiors in the Army for which, a Court of inquiry was held by the Army authorities against the appellant. Primarily for those, the appellant’s career progress got affected. The Respondent was also making complaints to other authorities, such as, the State Commission for Women and has posted defamatory materials on other platforms. The net outcome of above is that the appellant’s career and reputation had suffered.<br>12. When the appellant has suffered adverse consequences in his life and career on account of the allegations made by the respondent, the legal consequences must follow and those cannot be prevented only because, no Court has determined that the allegations were false. The High Court however felt that without any definite finding on the credibility of the wife’s allegation, the wronged spouse would be disentitled to relief. This is not found to be the correct way to deal with the issue.<br>13. Proceeding with the above understanding, the question which requires to be answered here is whether the conduct of the respondent would fall within the realm of mental cruelty. Here the allegations are levelled by a highly educated spouse and they do have the propensity to irreparably damage the character and reputation of the appellant. When the reputation of the spouse is sullied amongst his colleagues, his superiors and the society at large, it would be difficult to expect condonation of such conduct by the affected party.<br>14. The explanation of the wife that she made those complaints in order to protect the matrimonial ties would not in our view, justify the persistent effort made by her to undermine the dignity and reputation of the appellant. In circumstances like this, the wronged party cannot be expected to continue with the matrimonial relationship and there is enough justification for him to seek separation.<br>15. Therefore, we are of the considered opinion that the High Court was in error in describing the broken relationship as normal wear and tear of middle class married life. It is a definite case of cruelty inflicted by the respondent against the appellant and as such enough justification is found to set aside the impugned judgment of the High Court and to restore the order passed by the Family Court. The appellant is accordingly held entitled to dissolution of his marriage and consequently the respondent’s application for restitution of conjugal rights stands dismissed. It is ordered accordingly.<br>16. With the above order, the appeals stand disposed of leaving the parties to bear their own cost.<br><br></h4>', '2fd62ebe8973c2c86eb6ecafa67dd9a9.jpg', '1e4a4ce59d48d2bd1eefb9c7fb60cae7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-26', 1, '', '', '2021-02-27 01:06:05', '2021-02-27 01:28:13'),
(514, 'XxmD2kQhy3syniG9kqHtgev3T', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Accused residing outside the territorial jurisdiction of Magistrate. The Magistrate must adopt Halt and Proceed approach guided by Section 202. Karnataka High Court 26 Feb 2021', '<h4>M/s. P J Margo Pvt Ltd and another vs State of Karnataka. Criminal Petition 101102 of 2020 decided on 26 February 2021. Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/368609/1/CRL%20PET%20101397-2020-26-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/368609/1/CRL%20PET%20101397-2020-26-02-2021.pdf </a><br>Relevant paragraphs: 6. Brief facts are to the effect that the Inspector, Legal Metrology, Gokak Sub- Division, Gokak presented separate private complaints against the petitioners in  these petitions before the Principal Civil Judge and JMFC, Gokak alleging violation of the provisions of the Act by  them and requesting the Court to take cognizance for the offences mentioned in the private complaints.<br>7. Briefly put, the thrust of the  complaint presented by the Inspector, Legal Metrology, Gokak Sub-Division is that these petitioners through their companies produce/ manufacture various consumer/engineering products and they have put out advertisements in various websites and on browsing the same in the internet, the Inspector, Legal Metrology who will be henceforth referred to as  complainant discovered that they were in  violation  of various provisions of the Act and Legal Metrology (Packaged Commodities) Rules, 2011. When  the complaints were presented before the learned JMFC, he perused the same and since the complainant is a public servant, dispensing with the sworn  statement,  being  of the opinion that the contents of the private  complaints made out the ingredients of the  offences under  Sections 31 and 36 of the Act, took cognizance  for  the  said  offences and issued summons to the petitioners.<br>9. The contentions of the learned counsel for the various petitioners is that the orders impugned herein taking cognizance for the offences punishable under Sections 31 and 36 of the Act have been passed in total violation of the procedure established under law and more particularly under Section 202 of Cr. P.C.<br>10. Elaborating the said submission, it is contended that the learned Court below was having territorial jurisdiction for the Revenue Taluk of Gokak and all the petitioners herein are located/residing in  places  outside the said jurisdiction viz., Bangalore, Mumbai and various other states and therefore by following the procedure established under Section 202 of Cr. P.C. the issuance of process ought to have been postponed/deferred till after holding inquiry as provided therein. For the said purpose, the learned counsel placed reliance on the decision of the Hon’ ble Supreme Court in Udai Shankar Awasthi  v. State of U.P. and others reported in (2013 ) 2 SCC 435 .<br>11. They also submitted that the companies which are the petitioners herein and the rest of the petitioners who are directors of the same are not liable to be  prosecuted for the offences alleged as they  have  nominated a director under Section 49 (2 ) of the Act, substantially to act as a compliance officer. They further submitted that once such a director is nominated under Section 49 (2) of the Act, the company and rest of the directors of the company cannot be prosecuted unless the conditions enumerated under sub- section 4 of Section 49 were satisfied and there is nothing to indicate from the impugned order that learned JMFC had come to such a conclusion before issuing summons under the impugned orders.<br>13. I have heard the learned HCGP in detail on the petitions.<br>14. There cannot be any dispute about the fact that all the petitioners in these petitions are residing outside the jurisdiction of learned JMFC who has passed the impugned orders. The impugned orders, in these  cases, are couched more or less in the same manner. </h4><h4>15. Learned JMFC has not applied his  judicial mind  to the facts of the case, the provisions of  law  applicable and also the provisions of the Code of Criminal Procedure, 1973. If he had only seen the  private  complaints,  he would have noticed that all the petitioners are residing outside his  jurisdiction  and  therefore,  Section  202  of Cr. P.C., became applicable to the present situation. It reads as under:</h4><h4 style=\"margin-left: 25px;\"><i>“202.  Postponement   of   issue   of   process .-  ( 1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192 , may, if he thinks fit, [ and shall, in a  case where the accused is residing at a place beyond the area in which he  exercises  his  jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by  such other person as  he  thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:<br>Provided that no such direction for investigation shall be made –<br>(a) where it appears to  the  Magistrate  that the offence complained of is  triable exclusively by the Court of Sessions; or<br>(b) where the complaint has  not  been  made by a   Court,   unless   the    complainant   and the witnesses present ( if any) have been examined on oath under section 200 .<br>(2) In  an  inquiry  under  sub-  section  ( 1), the Magistrate  may,  if  he  thinks  fit,  take  evidence of witnesses on oath:<br>Provided that if it appears to the Magistrate  that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.<br>(3) If an  investigation under sub- section (  1) is made  by  a  person not  being a  police officer, he shall  have  for  that  investigation  all   the powers conferred by this Code on an officer- in- charge of a police station  except  the  power  to arrest without warrant.”</i></h4><h4><b style=\"background-color: rgb(255, 255, 0);\">16. A cursory glance of the complaints would have revealed to the learned judge that the companies and petitioners arraigned as accused in the complaints are located/residing outside his territorial jurisdiction. That would have alerted him to seek guidance from Section 202 of Cr. P. C. which loudly and clearly says that in such an eventuality, the Court should adapt what could be conveniently called as the “ halt and proceed” approach before issuing process. This is a guarantee assured to allthe potential accused in private complaints  residing outside the territorial jurisdiction of the summoning Court that before they are called upon  to  make an  arduous trip to the Court to answer the charges, Court has doubly assured itself that they are, in light of materials available before it, liable to answer such charges. The inquiry required to be held by Court at this stage or the investigation to be made by police officer  in  the alternative, contemplated under Section 202 of Cr.P.C. is towards fulfillment of such guarantee made available to an accused hailing from outside the jurisdiction.  Courts should not treat this onerous obligation like a  mere ritual  or an empty formality. This “halt and proceed”  is mandatory and any violation of the same will fetch a “red signal” from Section 202 of Cr. P. C.</b><br>17.<span style=\"white-space:pre\">	</span>The Hon’ ble Supreme Court in a similar case in Udai Shankar Awasthi (referred supra), at para No.40  has observed as follows: </h4><h4 style=\"margin-left: 25px;\"><i>“40. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 Code of Criminal Procedure, though the appellants were outside his territorial jurisdiction. The provisions of Section 202 Code of  Criminal Procedure were  amended vide  Amendment  Act 2005 , making it mandatory to postpone the issue of process where the accused resides in an  area  beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into  the  case himself, or  to direct investigation to be made  by  a  police officer, or by such other person as he thinks fit for  the purpose of finding out whether  or  not,  there was sufficient ground for proceeding against the accused  before  issuing  summons  in   such   cases. [ See also Shivjee Singh v. Nagendra Tiwary ( AIR 2010 SC 2261; and National Bank of Oman v. Barakara Abdul Aziz ( 2013) 2 SCC 488)]”.</i></h4><h4>18. In view of the above decision of the Hon’ble Supreme Court and in view of the mandatory provisions of Section 202 of Cr.P.C., the orders impugned herein taking cognizance for the offences punishable under Sections 31 and 36 of  the Act, passed by  the  learned JMFC are liable  to be set aside.<br></h4><h4><b style=\"background-color: rgb(255, 255, 0);\">19.Learned JMFC ought to have borne in mind that taking cognizance for the offences against the accused persons named in the private complaints is a solemn act which will have adverse consequences on the life and  liberty of the accused. Therefore, he should have applied  his judicial mind to the allegations made, provisions of the Act which are alleged to have been violated and the ingredients of the offences etc., carefully before deciding  to take cognizance for the offences. Now in this particular instance, additional care ought to have been bestowed by the learned JMFC in view of the fact that some of the petitioners are companies incorporated under the Indian Companies Act, 1956, and most of the petitioners are directors of the same. In regard to  the  vicarious liability  of the director of companies for the offences  alleged against them are concerned, law is very clear [Vide SMS Pharmaceuticals Limited vs. Neeta Bhalla and another reported in (2005 ) 8 SCC 89]. Learned Judge should have adverted his attention to the law laid down by the Hon’ble Supreme Court in the above case. Further Sub-section 2 of Section 49 of the Act enables the companies to authorize a director to act as compliance officer and once such nomination has been done in accordance with law and such nomination is conveyed to  the Director or the concerned controller or any legal metrology officer, there is an embargo on prosecuting the Directors of the company for the violation of any of the provisions resulting in commission of offences. If the complainant has got a case that apart from the Director nominated as the  compliance officer under Section 49(2)  of the Act, any other directors also have committed offences, the complainant is duty bound to satisfy the requirements under Section 49 (4 ) of the Act, by providing necessary information along with the complaint. Learned JMFC has not applied his mind to any of these  requirements. Non- application of the judicial mind by the learned JMFC is writ large on the face of the order itself.</b><br><br><br></h4>', 'a0456b31b57db221d14c0c0c2acf17c0.jpg', '7d092fead8baa3649cd6aed710671d61.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-26', 1, '', '', '2021-02-28 17:23:34', '2021-02-28 17:28:27');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(515, '3mNbpyqaMhbWoPZj2hTW6zaLm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Foreign Exchange Regulation Act 1973. Contract or agreement pertaining to transfer of immovable property of a foreign national without previous permission of the RBI would be unenforceable in law. Supreme Court.', '<h4><b>Asha John Divianathan vs Vikram Malhotra & Ors. </b></h4><h4><b>Civil Appeal 9546 of 2010 decided on 26 February 2021. </b></h4><h4><b>Justice A.M. Khanwilkar, Justice Indu Malhotra and Justice Ajay Rastogi. </b></h4><h4><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\"><b><br></b></span></h4><h4><b><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\">1. The central issue in this appeal is in reference to Section 31 of   the   Foreign   Exchange   Regulation   Act, 1973 To wit, transaction (specified in Section 31 of the 1973 Act) entered into in contravention of that provision is void or is only voidable and it can be voided at whose instance?</span><br></b></h4><h4><b>13. Before we analyse Section 31 of the 1973 Act, it is essential to understand the object and purpose for which the 1973 Act was brought into force. It was to consolidate and amend the law relating to certain payments, dealings in foreign exchange and securities, transactions indirectly affecting foreign exchange and the import and export of currency, for the conservation of the foreign exchange resources of the country and the proper utilisation thereof in the interests of the economic development of the country.  14. The avowed object of Section 31 of the 1973 Act was thus to minimise the drainage of foreign exchange by way of repatriation of income from immovable property and sale proceeds in case of disposal of property by a person, who is not a citizen of India.  As is noticed from the title of Section 31, it is to put restriction on acquisition, holding and disposal of immovable property in India by foreigners – non citizens. </b></h4><h4><b>17. Section 50 reinforces the position that transfer of land situated in India by a person, who is not a citizen of India, would visit with penalty. Indeed, inserting such a provision does not mean that the 1973 Act is a penal statute, but is to provide for penal consequence for contravention of  provisions, such as Section 31 of the 1973 Act. <br>18. Section  63  of the  1973  Act empowers  the court  trying  a contravention under Section 56 which includes one under Section 51 of the 1973 Act, to confiscate the currency, security or any other money or property in respect of which the contravention has taken place.  The expression “property” in Section 63, takes within its sweep immovable property referred to in Section 31 of the 1973 Act.  <span style=\"background-color: rgb(255, 255, 0);\">To put it differently, the requirement specified in Section 31 is mandatory and, therefore, contract or agreement including the gift pertaining to transfer of immovable property of a foreign national without previous general or special permission of the RBI, would be unenforceable in law.</span></b></h4><h4><b>19. At this stage, it may be useful to keep in mind the purport of expression “void” and “voidable”.  For that, we may advert to the exposition   in   the   case   of  Dhurandhar Prasad Singh v. Jai Prakash  University  &   Ors.,  which had noted the dictum of Lord Denning   in  R. v. Paddington   Valuation  Officer, ex p Peachey Property Corpn. Ltd.17 and also in Judicial Review of Administrative   Action  by de Smith, Woolf and Jowell and in Judicial Remedies in Public Law by Clive Lewis.  </b></h4><h4><b><br></b></h4><h4><b>20. It is well established that a contract which involves in its fulfilment the doing of an act prohibited by statute is void. The legal maxim A pactis privatorum publico juri non derogatur means that private   agreements   cannot   alter   the  general law. Where a contract, express or implied, is expressly or by implication forbidden by statute, no court can lend its assistance to give it effect.  (See Mellis v. Shirley L.B.)  What is done in contravention of the provisions of an Act of the legislature cannot  be made the subject of an action.<br></b></h4><h4><b><br><span style=\"background-color: rgb(255, 255, 0);\">25. From the analysis of Section 31 of the 1973 Act and upon conjoint reading with Sections 47, 50 and 63 of the same Act, we must hold that the requirement of taking “previous” permission of the  RBI before   executing   the   sale   deed   or   gift   deed is   the quintessence;   and   failure   to   do   so   must   render   the   transfer unenforceable   in   law.     The   dispensation under  Section 31 mandates “previous” or “prior” permission of the RBI before the transfer takes effect.  For, the RBI is competent to refuse to grant permission in a given case.  The sale or gift could be given effect and taken forward only after such permission is accorded by the RBI. There is no possibility of  ex post facto  permission being granted by the RBI under Section 31 of the 1973 Act, unlike in the case of Section 29 as noted in  Life   Insurance  Corporation  of India (supra).  Before grant of such permission, if the sale deed or gift deed is challenged by a person affected by the same directly or indirectly   and   the   court   declares   it   to   be invalid, despite the document being registered, no clear title would pass on to the recipient or beneficiary under such deed. The clear title would pass on and the deed can be given effect to only if permission is accorded by the RBI under Section 31 of the 1973 Act to such transaction.<br></span></b></h4><h4><b><span style=\"background-color: rgb(255, 255, 0);\">26. In light of the general policy that foreigners should not be permitted/allowed to deal with real estate in India; the peremptory condition of seeking previous permission of the RBI before engaging in transactions specified in Section 31 of the 1973 Act and the consequences of penalty in case of contravention, the transfer of immovable property situated in India by a person, who is not a citizen of India, without previous permission of the RBI must   be regarded as unenforceable and by implication a prohibited act. That can be avoided by the RBI and also by anyone who is affected directly or indirectly by such a transaction. There is no reason to deny remedy to a person, who is directly or indirectly affected by such a transaction.  He can set up challenge thereto by direct action or even by way of collateral or indirect challenge.</span><br><br></b></h4><h4><b>27. In other words, until permission is accorded by the RBI, it would not be a lawful contract or agreement within the meaning of Section 10 read with Section 23 of the Contract Act.   </b></h4>', 'e08b5cf1e796f5d51fd0df966d858c69.jpeg', '3e215a01004fc25c5154d02a2e6b9f75.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-06', 1, '', '', '2021-02-28 18:38:20', '2023-02-06 12:34:10'),
(516, 'LMi2qNrK6UiXJP0tXybxuTebF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Banking. Karnataka High Court deprecates practice of banks in recovering only a portion of loan under the guise of One Time Settlement. Dismisses writ petition of the debtor who abused the process with heavy costs. 25 Feb 2021  ', '<h4>Balkishan Boob vs Bank of Maharashtra. </h4><h4>Writ Petition 1267 of 2021 decided on 25 February 2021. </h4><h4>Judgment Link: <a href=\"https://karnatakajudiciary.kar.nic.in/judgements/wp-1267-2021.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/wp-1267-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs: </span>23. Though Shri. Dhyan Chinnappa has argued that a right has been created by virtue of the guidelines issued by the RBI and the Samadhan Schemes are nondiscriminatory and non-discretionary in nature. He contended that OTS will have to be considered only on the ledger balance as on the date of NPA. If this contention is to be accepted, any borrower/guarantor may choose to repay at their sweet leisure several years after declaration of NPA. This is anti-thesis of economic progress. In financial market, money has to grow by the day. According to the Bank, the debt is 14.05 Crores as on date. Therefore, the contention with regard to ledger balance is noted only to be rejected.<br><b style=\"background-color: rgb(255, 255, 0);\">24. It is rather strange that Banks lend money without proper tangible security and offer to receive a  portion of it under the OTS Scheme. Logically, this is preposterous because, Banks deal with money belonging to the depositors. Waiver of portion of money lent by whatever name it is called, directly results in inflation and shall have adverse impact on the economic health of the Nation.</b><br>25. It was also urged by Shri. Dhyan Chinnappa that under the OTS Scheme, petitioner is liable to pay 70% on the secured portion and 35% on the unsecured portion. It is not understandable as to why a borrower is permitted to pay only 70% on the secured portion and the remaining 30% is waived. This means even when a security can realize more money, borrowers are absolved by paying only 70% value. Though this is a policy matter and not under challenge, it is appropriate for those concerned in the Ministry of Finance and RBI to have a re-look into the Scheme.<br>26. As recorded hereinabove, petitioner has been actively involved with the borrower. Company, as the  borrower has filed writ petition in Kalaburagi Bench and petitioner as the Ex-Director and guarantor has filed this writ petition. Further, petitioner has suppressed material facts with regard to proceedings in Kalaburagi Bench. It is settled that relief under Article 226 is discretionary in nature and can be exercised only when a litigant approaches the Court with clean hands.<br>27. In view of the conduct of borrower - Company and the petitioner, the petitioner shall not be entitled for the equitable and discretionary relief under Article 226 of the Constitution of India. Though Bank has declared the account as NPA in 2016, the borrower and the guarantor have successfully stalled recovery of public money till date. Therefore, this petition is liable to be dismissed with costs.<br>(a) Writ petition is dismissed.<br>(b) Petitioner is directed to pay cost of 1,00,000/-<br>(Rupees One Lakh) to the Bank and 1,00,000/-(Rupees  One Lakh) in the name of Registrar General of this Court<br>within four weeks from today.<br><br></h4>', '7648e47e85fc6aa728cbdb793d8c024a.jpg', '8a56810741ed43594b5cfb17f39b7f7c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-25', 1, '', '', '2021-02-28 19:57:09', '2021-02-28 20:31:10'),
(517, 'Fn8YrOkHwzc3b469WORllynZz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Quashing of criminal proceedings. Since power under Section 482 Cr.P.C. to be exercised in the rarest of rare cases- resort to Articles 226 and 227 of the Constitution is permissible only in the most extraordinary cases. Karnataka High Court. 26 Feb 2021', '<h4>Laxman and another vs The State of Karnataka and others. </h4><h4>Writ Petition 63379 of 2016 decided on 26 February 2021. </h4><h4>Judgment Link:<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/368616/1/WP%2061291-2016-26-02-2021.pdf\" target=\"_blank\">&nbsp;http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/368616/1/WP%2061291-2016-26-02-2021.pdf</a><br></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs: </span>3. As per the proceedings of Government of Karnataka bearing No. Gra.Aa.Pa.35 Enq 2015, Bengaluru, dated 3.10.2016, the complaint was lodged for various offences punishable under IPC as well as under the Prevention of Corruption Act, 1988 and based on the same, case in Crime No.3/2016 was registered by the Anti-Corruption Bureau (ACB) Police Station, Koppal Taluk, Koppal District. The petitioners are aggrieved by complaint as well as registration of the case pursuant to the same by the ACB Police against them and several others.<br>21. The scope for interdicting the registration of FIR and holding of investigation thereon is very limited. Law on this aspect has been settled by the Hon’ble Supreme Court in Asian Resurfacing of Road Agency Private Limited and Another Vs. Central Bureau of Investigation, (2018) 16 SCC 299, Girish Kumar Suneja Vs. CBI, (2017)14 SCC 809 and Amish Devgan Vs. Union of India and Others, (2021 ) 1&nbsp; SCC 1, para- 121.<br>22. In regard to the scope and exercise of power under Section 482 of Cr.P.C., Section 397(2) of Cr.P.C. and under Articles 226 and 227 of the Constitution of India, in matters of this nature, the Hon’ble Supreme Court in Asian Resurfacing of Road Agency Private Ltd. (supra) has held at paragraphs-21 and 22 as follows:</h4><h4 style=\"margin-left: 25px;\"><i>“38. The Criminal Procedure Code is undoubtedly a complete code in itself. As has already been discussed by us, the discretionary jurisdiction under Section 397(2) Cr.P.C. is to be exercised only in respect of final orders and intermediate orders. The power under Section 482 Cr.P.C. is to be exercised only in respect of interlocutory orders to give effect to an order passed under the Criminal Procedure Code or to prevent abuse of the process of any court or otherwise to serve the ends of justice. As indicated above, this power has to be exercised only in the rarest of rare cases and not otherwise. If that is the position, and we are of the view that it is so, resort to Articles 226 and 227 of the Constitution would be permissible perhaps only in the most extraordinary case. To invoke the constitutional jurisdiction of the High Court when the Criminal Procedure Code restricts it in the interest of a fair and expeditious trial for the benefit of the accused person, we find it difficult to accept the proposition that since Articles 226 and 227 of the Constitution are available to an accused person, these provisions should be resorted to in cases that are not the rarest of rare but for trifling issues.”</i></h4><h4>25. The resultant position that emerges from the decisions of Hon’ble Supreme Court in Girish Kumar Suneja vs. Central Bureau of Investigation – (2017), 14 SCC 809 (supra), Asian Resurfacing of Road Agency Private Limited and Another vs. Central Bureau of Investigation – (2018) 16 SCC 299 and Amish Devgan vs. Union of India and others – (2021) 1 SCC 1 with regard to the scope of exercise of power under Section 482 of Cr.P.C. and Article 227 of the Constitution of India for interdicting registration of criminal cases and further proceedings can be summarized as follows :<br></h4><h4>(1) The power under Section 482 of Cr.P.C. has to be exercised only in the rarest of rare cases and not otherwise.<br>(2) What are those rarest of rare cases to qualify for the exercise of power under Section 482 of Cr.P.C. have been particularized in para 121 of Amish Devgan vs. Union of India and others – (2021) 1 SCC 1 and the instances mentioned in Amish Devgan’s case are :</h4><h4 style=\"margin-left: 25px;\"><i>121………These could be cases where, manifestly, there is a legal bar against institution or continuance of the prosecution or the proceedings, such as due to requirement of prior sanction; or where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; or where the allegations in the FIR do not disclose a cognizable offence; or where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. Another qualifying category in cases where charge-sheet is filed would be those where allegations against the accused do constitute the offence alleged, but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. Application of these principles depends on factual matrix of each case…..”</i><br></h4><h4>(3) The power under Article 227 may be unfettered, but its exercise is subject to high degree of judicial discipline.<br><b style=\"background-color: rgb(255, 255, 0);\">(4) Since the power under Section 482 of Cr.P.C. itself is required to be exercised only in the rarest of rare cases and not otherwise, resort to Articles 226 and 227 of the Constitution would be permissible perhaps only in the most extraordinary cases.</b><br>(5) The proposition that since Articles 226 and 227 of the Constitution are available to an accused person, these provisions should be resorted to in cases that are not the rarest of rare variety, but for trifling issues cannot be accepted, the reason being, the Criminal Procedure Code itself restricts it in the interest of a fair and expeditious trial for the benefit of the accused person (para 22 of Asian Resurfacing of Road Agency Private Limited and Another vs. Central Bureau of Investigation – (2018) 16 SCC 299).<br>26. Keeping in mind the above principles laid down by the Hon’ble Supreme Court and also the fact that the complaint clearly makes out commission of cognizable offences both under the PC Act as well as IPC, it is impermissible to interdict the investigation in this case. On the other hand, the complaint clearly shows that the petitioners were all working in Koppal not only during the period 21.9.2013 to 6.2.2014 but also during the subsequent period when the work was continued to be executed and the payments towards bills were made for the works executed and the documents were falsified for the said purpose. It is therefore necessary that a proper investigation is held to bring out the truth. It is also evident that the investigation to be held by the investigating agency will be mostly confined to examination of the records, and therefore, personal liberty of the petitioners is not going to be affected. It is&nbsp; in the larger interest of public as well as the petitioners themselves, that the allegations are investigated and the facts are properly looked into in view of the fact that the crores of rupees are alleged to have been swindled in the guise of execution of work.<br>27.<span style=\"white-space:pre\">	</span>Insofar as the contention of the learned counsel Sri.<br>28. On an entire consideration of the materials placed before me, detailed complaint and voluminous documents furnished to the investigating officer, I am of the view that there are no grounds made out to quash the complaint or FIR and in that view of the matter, I proceed to pass the following:<br>a) The above writ petitions are dismissed.<br>b) In view of the above order, pending interlocutory applications, if any, are also dismissed as not surviving for consideration.</h4><h4>23. In regard to grant of stay of the investigation and further proceedings emanating from the cases registered under the PC Act is concerned, the Hon’ble Supreme Court in Asian Resurfacing of Road Agency Private Ltd. has held at paragraphs-24, 27, 30 to 35 as follows: extracted.&nbsp;</h4><h4><br></h4>', '56dc5076f32214e704efe59d31e1a014.jpg', '2df73433dec0c54b231bc750988e4550.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-26', 1, '', '', '2021-03-01 20:20:57', '2021-03-01 20:27:57'),
(518, 'EWeaOyYzNkqlnHX4ejw2Km2oK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Quashing of criminal proceedings.  Corruption. Courts should be slow in exercising the power under Section 482 of Cr.P.C. especially where serious allegations of Corruption by public servants are made. Karnataka High Court. 26 Feb 2021', '<h4>M.Chidananda Rao vs The State of Karnataka. </h4><h4>Criminal Petition 102366 of 2017 decided on 26 February 2021. </h4><h4>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/368619/1/CRLP102366-17-26-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/368619/1/CRLP102366-17-26-02-2021.pdf&nbsp;</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs.</span> The petitioner who is accused No.1 is seeking quashing of the entire proceedings in S.C.No.5004/2017 pending on the file&nbsp; of the learned III Additional District and Sessions Judge, Ballary, sitting at Hospet, for offences punishable under Sections 7 r/w 13(2) of the Prevention of Corruption Act, 1988.<br>7. At this stage, observation of the&nbsp; Hon’ble&nbsp; Supreme Court in Shahid Balwa Vs. Union of India and Others, (2014) 2 SCC 687, is required to be noticed,</h4><h4 style=\"margin-left: 25px;\"><i>“28. The Parliament, in its wisdom, has also noticed the necessity of early disposal of cases&nbsp; relating to bribery and corruption. Section 4(4) of the Prevention of Corruption Act, 1988 reflects the will of the Parliament that a Special Judge shall hold&nbsp; the trial of an offence on day- to-day basis, notwithstanding anything contained in the Code of Criminal Procedure. Section 19(3)(c) also states that, notwithstanding anything contained in the Code of Criminal Procedure, no Court shall stay the proceedings&nbsp; under&nbsp; the Prevention ofCorruption Act on any other ground and no Court shall exercise the powers of the revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. Statutory provisions highlight the imperative need to eradicate the evils of bribery and corruption.”</i></h4><h4>8. Similarly, it is observed&nbsp; by&nbsp; the&nbsp; Hon’ble&nbsp; Supreme&nbsp; Court in State of Orissa and Another Vs. Saroj Kumar Sahoo, (2005) 13 SCC 540 as follows:-</h4><h4 style=\"margin-left: 25px;\"><i>“8. Exercise of power under Section 482 of the Cr.P.C.&nbsp; in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed&nbsp; before&nbsp; the&nbsp; enactment&nbsp; of&nbsp; the Cr.P.C. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i)&nbsp; to&nbsp; give&nbsp; effect&nbsp; to an order under the Cr.P.C., (ii) to prevent abuse of&nbsp; the process of court, and (iii) to otherwise secure the ends of justice. It is&nbsp; neither&nbsp; possible&nbsp; nor&nbsp; desirable&nbsp; to&nbsp; lay&nbsp; down&nbsp; any inflexible rule which would govern the exercise of inherent&nbsp; jurisdiction.&nbsp; No&nbsp; legislative&nbsp; enactment&nbsp; dealing with procedure&nbsp; can&nbsp; provide&nbsp; for&nbsp; all&nbsp; cases&nbsp; that&nbsp; may possibly arise. Courts, therefore, have&nbsp; inherent&nbsp; powers apart&nbsp; from&nbsp; express&nbsp; provisions&nbsp; of&nbsp; law&nbsp; which&nbsp; are&nbsp; necessary for proper discharge of functions and duties imposed upon them by law. That&nbsp; is&nbsp; the&nbsp; doctrine&nbsp; which&nbsp; finds expression in&nbsp; the&nbsp; section&nbsp; which&nbsp; merely&nbsp; recognizes and preserves inherent powers of the High&nbsp; Courts.&nbsp; All courts, whether&nbsp; civil&nbsp; or&nbsp; criminal&nbsp; possess,&nbsp; in&nbsp; the&nbsp; absence&nbsp; of any express provision, as inherent&nbsp; in&nbsp; their constitution,&nbsp; all such powers as are necessary to do the&nbsp; right&nbsp; and&nbsp; to&nbsp; undo a wrong in course of administration of justice on the principle \"quando lex aliquid alicui concedit, concedere videtur et id&nbsp; sine&nbsp; quo&nbsp; res&nbsp; ipsae&nbsp; esse&nbsp; non&nbsp; potest\"&nbsp; (when&nbsp; the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by&nbsp; the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to&nbsp; abuse that authority so as&nbsp; to produce injustice, the court has power to&nbsp; prevent&nbsp; abuse. It would be an abuse of process of the court&nbsp; to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it&nbsp; finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.&nbsp; When&nbsp; no offence is disclosed by the report, the court may examine the question of fact. When a report is sought to be&nbsp; quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto.<br>11. As noted above, the powers possessed by the High Court under Section 482 of the Cr.P.C. are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its&nbsp; decision in exercise of this power is based&nbsp; on&nbsp; sound&nbsp; principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal,&nbsp; are&nbsp; of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in&nbsp; which&nbsp; the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: Janata Dal v. H. S. Chowdhary, [1992] 4&nbsp; SCC&nbsp; 305,&nbsp; and Raghubir&nbsp; Saran (Dr.) v. State of Bihar, AIR (1964) SC 1). It would not be proper for the High Court to&nbsp; analyse the case of&nbsp; the complainant in the light of all probabilities in order to determine whether a conviction would&nbsp; be&nbsp; sustainable&nbsp; and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. When&nbsp; an&nbsp; information is lodged&nbsp; at the police station&nbsp; and&nbsp; an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. (See: Dhanalakshmi v. R. Prasanna Kumar, [1990] Supp SCC 686, State of Bihar v. P. P. Sharma, AIR (1996) SC 309, Rupan Deol Bajaj v. Kanwar Pal&nbsp; Singh Gill, [1995] 6 SCC 194, State of Kerala&nbsp; v.&nbsp; O.C.&nbsp; Kuttan,&nbsp; AIR (1999) SC 1044, State of U.P. v. O.P. Sharma, [1996] 7 SCC 705, Rashmi Kumar v. Mahesh Kumar Bhada, [1997] 2 SCC 397, Satvinder Kaur v. State (Govt.&nbsp; of&nbsp; NCT of Delhi, AIR (1996) SC 2983 and Rajesh Bajaj v. State NCT of Delhil, [1999] 3 SCC 259).<br>14. It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 of the Cr.P.C., it is not permissible for the Court to act as if it was a trial Court. Even when charge is framed at that stage, the Court has&nbsp; to only prima facie be satisfied about existence of&nbsp; sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. In Chand Dhawan (Smt.) v.&nbsp; &nbsp;Jawahar&nbsp; &nbsp;Lal&nbsp; &nbsp;and&nbsp; &nbsp;Ors.,&nbsp; &nbsp;[1992]&nbsp; &nbsp;3&nbsp; &nbsp;SCC&nbsp; &nbsp;317,&nbsp; &nbsp;it&nbsp; &nbsp;was observed that when the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude&nbsp; the complaint to be unacceptable. The Court should not act on&nbsp; annexures&nbsp; to the petitions under Section 482 of the Cr.P.C., which cannot be termed as evidence without being tested and proved.”&nbsp;</i></h4><h4><b style=\"background-color: rgb(255, 255, 0);\">9. The above decisions of the Hon’ble Supreme Court make it abundantly clear that the Courts should be slow in exercising the power under Section 482 of Cr.P.C. especially where serious allegations of Corruption by public servants are made. In this case, the statements of the witnesses more particularly that of CW1, CW4, CW6 and CW8 and also the transcript of the conversation make out a prima facie case that there was a demand for bribe made by both the accused in order to release the lorry without registering a case for overloading.</b><br>Under such circumstances, it is not possible for this Court to&nbsp; dissect the evidence like a trial Court and hold that the plausible defence of the accused has the potential to dislodge the case of the prosecution and second-guess the final out come of the trial at this stage itself and quash the proceedings. On an entire perusal of the charge sheet papers, it cannot be&nbsp; said that there&nbsp; is no legal evidence available in the charge sheet papers.<br>10. Accordingly, I am of the view that there is no merit in this petition and the petition is dismissed.<br><br></h4><div><br></div>', '1fe6ff6bebe7bce5ace420b351e9ad35.jpg', 'cc568b54828e696b98b9d67aaa53c1ab.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-26', 1, '', '', '2021-03-01 21:11:28', '2021-03-01 21:13:02'),
(519, 'JXpxNRBA3BshWdKxO4oUlt3Wr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Compromise arrived at and duly recorded before Lok Adalat in the presence of the parties and their counsel cannot be challenged alleging lack of consent or free will. Karnataka High Court. 13 June 2019', '<h4>Touseef Ahmed v. Trinity Christian Association Trust. Writ Petition 113583 of 2015, decided on 13 June, 2019. Justice Aravind Kumar. <br>Judgment Link:<br><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/279450/1/WP113583-15-13-06-2019.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/279450/1/WP113583-15-13-06-2019.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant Paragraphs: </span>4. Having regard to the above facts when the case papers are perused, it would disclose that when the matter was taken before Lok Adalath, not only petitioners- defendants were present but also their learned advocates were also present before the Lok Adalath. Both parties have affixed their signatures to the ordersheet which is also counter signed by their advocates. Infact, in the Lok Adalath, contents of the compromise petition has been read over to both parties present before the Court in kannada language by the Members of Lok Adalath and only after parties having understood the contents of the compromise petition and admitted it to be true and it was not entered into under duress, the members of the Lok Adalath have recorded a finding that terms of the compromise is lawful and accordingly, decree has been ordered to be drawn in terms of the compromise petition.<br>5. Though Mr. Vittal S Telli, learned counsel appearing for petitioners/defendants would contend that there was no joint memo, two glaring facts which remain unanswered are (i) when the matter was referred to Lok Adalath by the learned judge on 15:10:2014, defendants wee present before court; (ii) contents of the compromise petition was read over by the members of the Lok Adalath to both parties who were present before the Lok Adalath and only on being satisfied that parties have entered the compromise lawfully and only after they have understood contents of the compromise petition, it has been taken on record and decree is ordered to be drawn in terms of compromise petition. As such, contention of learned counsel for the petitioner would not hold water and it is liable to be rejected and accordingly it is rejected. Consequently, writ petition is dismissed. </h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Also see.</span> Sharanabasappa vs Ramulu. Writ Petition 226358 of 2020 decided on 1 March 2021. Justice Nagaprasanna, Kalburgi bench. </h4><h4> <br> <br> </h4><div><br></div>', 'adff1ee3cf96fe68c2f64138cbecc5f4.PNG', '707b51caebfba258e8c0b6c0fff05788.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2019-06-13', 1, '', '', '2021-03-01 23:47:23', '2021-03-02 00:03:03');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(520, 'PewRtfF3yCkmNCUraA8BxbbMy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land Acquisition Act 1894. Section 4A read with Section 17. Unjustified invocation of urgency clause vitiates the acquisition process. Case Laws discussed. Supreme Court 1 March 2021', '<h4>Punalur Paper Mills vs West Bengal Mineral Development and Trading Corporation Ltd and others.&nbsp;</h4><h4>Special Leave Petition (C) 9834-9835 of 2020 decided on 1 Mar 2021]<br>Bench- Justice R F Nariman and Justice BR Gavai<br>Author – Justice R F Nariman<br>Link - <a href=\"https://main.sci.gov.in/supremecourt/2020/14354/14354_2020_33_1503_26551_Judgement_01-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/14354/14354_2020_33_1503_26551_Judgement_01-Mar-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs:</span>&nbsp;20. The impugned judgment of the Division Bench is fortified by several judgments. In Banwarilal &amp; Sons Pvt. Ltd. v. Union of India, C.W.P. No. 2385 of 1988 reported in 1991 Supp DRJ 317 [“Banwarilal (Delhi HC)”], a Division Bench of the High Court of Delhi, vide an order dated 04.02.1991, quashed a similar notification in the context of a similar provision contained in the Requisitioning and Acquisition of Immovable Properties Act, 1952. The High Court of Delhi held:</h4><h4 style=\"margin-left: 25px;\"><i>&nbsp;“8. In the Notification challenged before us the only thing that is stated is that the property was required for the “residential use of government servants.” There is not a whisper of what was the urgency to take immediate 15 possession and to deny the right of raising [objections] to the owner under Section 5-A of the Act. The Notification under Sections 4 and 17(1) in the present case, therefore, stand vitiated for non-compliance of the requirement of mentioning urgency in the Notification itself. What is more objectionable is the fact that the building was already in occupation of the officers of Delhi Administration and the Administration knew that the Requisitioning and Acquisition of Immovable Properties Act was to lapse on 10.3.1987. Thus, they had sufficient time to make alternate arrangement for the residence of their officers and there was no urgency whatsoever for invoking the provisions of Section 17(1). The provisions of Section 17(1) cannot be utilised to cover up the laxity or lethargy of the Administration to take appropriate steps in time for making available alternate accommodation for its officers.” (page 320)<br>13. In Assam Sillimanita Limited v. Union of India (AIR 1990 SC 1417) the Supreme Court had appointed an Arbitrator for determining the damages in case of unlawful termination of a lease. Considering the fact that more than three years have elapsed since the Requisitioning and Acquisition of Immovable Property Act has lapsed, it would be more just and appropriate that an Arbitrator is appointed in the present case to determine the damages payable by Delhi Administration instead of making the petitioners run to the Civil Court for that purpose. We appoint Mr. T.V.R. Tatachari, former Chief Justice, Delhi High Court, as an Arbitrator who will enter upon the reference within four weeks of the communication of this order to him. He may make the Award within a period of four months thereafter. The Arbitrator will not be obliged to give reasons for his conclusions. The parties will be at liberty to produce their valuers before the Arbitrator for the assessment of damages, if they so desire. The petitioners as well as the Delhi Administration will pay a sum of Rs. 10,000/- each to&nbsp; the Arbitrator as the initial payment towards his fees. </i>A copy of this order [be] sent to the learned Arbitrator by the Registry.” (pages 321-322)&nbsp;</h4><h4>21. This judgment of the High Court of Delhi travelled to this Court, the Special Leave Petition filed by the Union of India being dismissed on 21.03.1991. In other off-shoot proceedings as well, such as Union of India v. Shakuntala Gupta, (2002) 10 SCC 694, the judgment in Banwarilal (Delhi HC) (supra) was again confirmed on 14.11.2000. A review against the aforesaid order met with the same fate in Union of India v. Shakuntala Gupta, (2002) 7 SCC 98, in which this Court dismissed the review on merits on 27.08.2002, stating:&nbsp;</h4><h4 style=\"margin-left: 25px;\"><i>“15. In any event the order dated 14-11-2000 was not legally erroneous. The notification under Section 4 was a composite one. The “opinion” of the Lt. Governor that the provisions of Section 17(1) of the Act were applicable, as expressed in the last paragraph of the impugned notification, was relatable in general to the 14 properties specified in the notification. The impugned notification was quashed in Banwari Lal case [Banwari Lal &amp; Sons (P) Ltd. v. Union of India, DRJ 1991 Supp 317] inter alia on the ground that the “opinion” of the Lt. Governor as expressed in the notification was insufficient for the purpose of invoking the provisions of Section 17(1) of the Act. This ground was not peculiar to the premises in Banwari Lal case [Banwari Lal &amp; Sons (P) Ltd. v. Union of India, DRJ 1991 Supp 317] but common to all fourteen properties. The urgency sought to be expressed in the impugned notification cannot be held to be sufficient for the purposes of Section 17(1) in this case when it has already been held 17 to be bad in Banwari Lal case. [See observations in Abhey Ram v. Union of India, (1997) 5 SCC 421 (para 11); Delhi Admn. v. Gurdip Singh Uban, (2000) 7 SCC 296 (paras 53- 55)] The expression of urgency being one cannot be partly good and partly bad like the curate\'s egg. It must follow that the acquisition in respect of the respondent\'s premises as mentioned in the notification which were sought to be acquired on the basis of such invalid expression of “urgency” cannot be sustained.”&nbsp;</i></h4><h4 style=\"\">22. These judgments were then followed in Union of India v. Krishan Lal Arneja, (2004) 8 SCC 453 [“Krishan Lal Arneja”]. After setting out the relevant provisions of the Land Acquisition Act, this Court held:&nbsp;</h4><h4 style=\"margin-left: 25px;\"><i>“16. Section 17 confers extraordinary powers on the authorities under which it can dispense with the normal procedure laid down under Section 5-A of the Act in exceptional case of urgency. Such powers cannot be lightly resorted to except in case of real urgency enabling the Government to take immediate possession of the land proposed to be acquired for public purpose. A public purpose, however laudable it may be, by itself is not sufficient to take aid of Section 17 to use this extraordinary power as use of such power deprives a landowner of his right in relation to immovable property to file objections for the proposed acquisition and it also dispenses with the inquiry under Section 5-A of the Act. The authority must have subjective satisfaction of the need for invoking urgency clause under Section 17 keeping in mind the nature of the public purpose, real urgency that the situation demands and the time factor i.e. whether taking possession of the property can wait for a minimum period within which the objections could be received from the landowners and the inquiry under Section 5-A of the Act could be completed. In other words, if power under Section 17 is not exercised, the very purpose for which the land is being 18 acquired urgently would be frustrated or defeated. Normally urgency to acquire a land for public purpose does not arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally or extraordinarily depending on situations such as due to earthquake, flood or some specific time-bound project where the delay is likely to render the purpose nugatory or infructuous. A citizen\'s property can be acquired in accordance with law but in the absence of real and genuine urgency, it may not be appropriate to deprive an aggrieved party of a fair and just opportunity of putting forth its objections for due consideration of the acquiring authority. While applying the urgency clause, the State should indeed act with due care and responsibility. Invoking urgency clause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the State administration. xxx xxx xxx&nbsp;<br>21. One more aspect to be noticed is, as observed by the High Court, that the properties in question continued to be in possession of the appellants; in other words, there was no urgency of taking immediate possession nor was there any immediate threat of dispossessing them from the properties. At the most, after the lapsing of the Requisitioning Act on 10-3-1987, their possession over the properties would have been unauthorised, maybe so long they continued in unauthorised possession of the properties, they were liable to pay damages for their occupation for a few months during which period they could have completed acquisition proceedings in the normal course without resorting to provisions of Sections 17(1) and (4) of the Act. During the course of the hearing, we specifically asked the learned counsel for the appellants in this regard, the only answer was that the appellants being the Union of India and others did not want to remain in the unauthorised possession of the properties. We are not&nbsp; convinced by this reply so as to justify invoking urgency clause to acquire the properties. Having regard to the facts and circumstances of the case in these appeals, the authorities could have completed acquisition proceedings in a couple of months even after providing opportunity for filing objections and holding inquiry under Section 5-A of the Act if they were really serious.&nbsp;<br>22. In the objects and reasons of Act 20 of 1985, it is stated that all the properties which were requisitioned prior to the amendment of the Act in 1970 were required to be released from requisition or acquired by 10-3-1985; although the Government is expeditiously implementing the policy of acquiring or releasing from requisition the requisitioned properties, a number of them are expected to be needed by the Government even after 10-3-1985 for public purposes; the Ministry of Defence is taking action for either releasing or acquiring the requisitioned properties. It was, therefore, decided to extend the maximum period for which the properties could be retained under requisition by a period of two years. Thus, it is clear that the authorities were aware that the properties were to be released or acquired and the maximum period was extended up to two years for the purpose. From 1985 to 1987 they had sufficient time to acquire the properties in question in the usual course. They had enough time to provide opportunity for filing objections and holding inquiry under Section 5-A of the Act. There was no need to invoke Section 17 of the Act. The office memorandum dated 19-7-1979 extracted above shows that the Executive Council took the decision in view of the amendment in the Requisitioning and Acquisition of Immovable Property Act, 1952 that all the requisitioned/leased houses which were with the Administration for more than 10 years were to be released to their owners immediately and all the occupants of requisitioned/leased houses were requested to furnish the relevant information by 16-7-1979 failing which the officer 20 concerned will be liable for eviction from the requisitioned house without provision for alternative accommodation. Here again, it is clear that the authorities were in the know of the situation in the year 1979 itself. Further, the minutes of the meeting held on 8-4-1985 in the room of the Secretary (PWD/L&amp;D), Delhi Administration, Delhi show that the position regarding all the requisitioned properties in Delhi which were requisitioned under the 1952 Act was reviewed. The said meeting was attended by: (1) Secretary (PWD/L&amp;D), (2) Joint Director (Training), (3) Additional District Magistrate (Registration) and Under-Secretary (LA). In the said meeting, it was decided that all the pre-1970 residential buildings which were partially requisitioned and were not in full occupation of the Delhi Administration should be derequisitioned in stages. xxx xxx xxx 27. Thus, from the Statement of Objects and Reasons of Act 20 of 1985, statement by the Minister concerned to the Lok Sabha on 28-3-1985, the office memorandum aforementioned and the minutes of meeting dated 8-4- 1985, it is sufficiently clear that the appellants were fully aware that they had to make arrangements either for acquiring the properties or derequisitioning them by making alternate arrangement within a period of two years i.e. up to 10-3-1987 inasmuch as no further extension of the Requisition Act was possible. Further having regard to the observations made by this Court in the case of Vora [(1984) 2 SCC 337 : (1984) 2 SCR 693] , there would have been no justification for the appellants to continue the properties in question under the Requisitioning Act any more. If the appellants were really serious in acquiring the properties in question, they had almost 2 years\' time even after taking the decision to acquire them or derequisition them within which time, acquisition proceedings could be completed in the usual course without depriving the respondents of their valuable right to file objections for acquisition and without dispensing with inquiry under Section 5-A of the Act. ....</i></h4><h4 style=\"margin-left: 25px;\"><i>29. Having regard to the facts and circumstances and the material available on record, we are of the view that invocation of urgency clause was without justification and was untenable as held in Banwari Lal [Banwari Lal &amp; Sons (P) Ltd. v. Union of India, DRJ 1991 Supp 317 (Del HC) [Ed.: This order of the High Court was affirmed by the Supreme Court while dismissing the SLP (No. 4458 of 1991) in Union of India v. Banwarilal &amp; Sons (P) Ltd. by its order dated 21-3-1991 quoted in para 5 below. See also para 11 below. See connected case at (2004) 5 SCC 304.]] and Shakuntala Gupta [Union of India v. Shakuntala Gupta, (2002) 7 SCC 98 [Ed.: See also the earlier order reported at (2002) 10 SCC 694.]] . This Court in State of Punjab v. Gurdial Singh [(1980) 2 SCC 471] as to the use of emergency power under Section 17 of the Act has observed that: (SCC p. 477, para 16)&nbsp;<br>“[I]t is fundamental that compulsory taking of a man\'s property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and preemptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing land acquisition authorities should not, having regard to Articles 14 (and 19), burke an enquiry under Section 17 of the Act. Here a slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes a travesty of emergency power.” 22 30. In Om Prakash v. State of U.P. [(1998) 6 SCC 1] referring to State of Punjab v. Gurdial Singh [(1980) 2 SCC 471] this Court in para 21 has observed that: (SCC pp. 23- 24) “[A]ccording to the aforesaid decision of this Court, inquiry under Section 5-A is not merely statutory but also has a flavour of fundamental rights under Articles 14 and 19 of the Constitution though right to property has now no longer remained a fundamental right, at least observation regarding Article 14, vis-à-vis, Section 5-A of the Land Acquisition Act would remain apposite.”</i></h4><h4 style=\"\">In the present appeals, the appellants have not been able to show before the High Court any genuine subjective satisfaction depending upon any relevant material available to the State authorities at the time when they issued the impugned notification under Section 4(1) of the Act and dispensed with Section 5-A inquiry taking aid of Section 17(4) of the Act. A Bench of three learned Judges of this Court in Narayan Govind Gavate v. State of Maharashtra [(1977) 1 SCC 133 : 1977 SCC (Cri) 49] has expressed that Section 17(4) cannot be read in isolation from Sections 4(1) and 5-A of the Act and has expressed that having regard to the possible objections that may be taken by the landowners challenging the public purpose, normally there will be little difficulty in completing inquiries under Section 5-A of the Act very expeditiously. In the same judgment, it is also stated that: (SCC p. 148, para 38)</h4><h4 style=\"margin-left: 25px;\"><i>“The mind of the officer or authority concerned has to be applied to the question whether there is an urgency of such a nature that even the summary proceedings under Section 5-A of the Act should be eliminated. It is not just the existence of an 23 urgency but the need to dispense with an inquiry under Section 5-A which has to be considered.”</i></h4><h4 style=\"\">23. Justifying the quashing of the notification under section 4 of the Land Acquisition Act along with the invocation of urgency under section 17 thereof, this Court then concluded: </h4><h4 style=\"margin-left: 25px;\"><i>“35. The alternative argument urged on behalf of the appellants that if the impugned notification suffers from infirmity in relation to invoking urgency clause, it can be quashed only to the extent of invoking the aid of Section 17 and the said notification can be sustained confining it to Section 4 of the Act, cannot be accepted. Otherwise, the same common notification stands quashed in respect of a few parties as in the cases of Banwari Lal [Union of India v. Banwarilal &amp; Sons (P) Ltd., SLP (C) No. 4458 of 1991 dated 21-3-1991] and Shakuntala Gupta [Union of India v. Shakuntala Gupta, (2002) 7 SCC 98 [Ed.: See also the earlier order reported at (2002) 10 SCC 694.]] and it stands sustained in respect of others i.e. the respondents in these appeals leading to anomalous situation. Added to this, if the argument, as advanced on behalf of the Union, is accepted, the notification under Section 17 of the Act invoking urgency clause would stand quashed but the landowner would nonetheless be deprived of the possession of the property as also payment of 80% of compensation under Section 17(3-A) of the Act. Such an unjust result cannot be allowed to happen by quashing the notification in part only to the extent of Section 17 of the Act and maintaining it for the purpose of Section 4 of the Act. Thus, having regard to the facts and circumstances brought on record in these appeals, it is not possible to accept this argument particularly when the very foundation of invoking Section 17 was invalid and unjustified as upheld by this Court in Banwari Lal‡ and Shakuntala Gupta [Union of India v. 24 Shakuntala Gupta, (2002) 7 SCC 98 [Ed.: See also the earlier order reported at (2002) 10 SCC 694.]].”&nbsp;</i></h4><h4 style=\"\">24. Given the aforesaid, it is clear that the appeals filed by the State, namely, civil appeals arising out of SLP(C) No.10581-10583 of 2020 have to be dismissed. </h4><h4 style=\"\"><i>Compiled by Angad Kamat, Advocate, Bangalore&nbsp;</i></h4><div><br></div><h4 style=\"margin-left: 25px;\"><br></h4>', '55e5e3ba399b89d65cf40d7c8e3155cb.jpg', '03e254842cc8b1b703fc79b307f8083f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-01', 1, '', '', '2021-03-02 18:14:37', '2021-03-02 18:14:37'),
(521, 'SnPMS4D3qXCOnOkPm3oFI8nFM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 482. Fraud. When the complaint does not disclose fraudulent or dishonest inducement which is an essential ingredient to constitute an offence under Section 420 IPC the proceedings are liable to be quashed. Supreme Court. 1 March 2021', '<h4>Archana Rana vs State of Uttar Pradesh and another. Criminal Appeal 167 of 2021 decided on 1 March 2021. Justice Dr. Dhananjaya Y. Chandrachud and Jutice M.R. Shah. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/70/70_2020_36_1503_26554_Judgement_01-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/70/70_2020_36_1503_26554_Judgement_01-Mar-2021.pdf</a></h4><h4>Relevant paragraphs: 2. That respondent no.2 – complainant lodged an FIR against the appellant herein and her husband for the offences under Sections 419, 420, 323, 504 and 506 IPC alleging, inter alia, that the appellant’s husband had taken a sum of Rs.5,00,000/- from him for getting his son employed. However, his son did not get any employment and subsequently when they went to the house of the appellant to ask for the return of the money, the appellant assaulted the complainant and threatened to get them falsely implicated in criminal cases and the appellant pushed/thrown him and his son from her house. The same was registered as Case Crime No. 153/2016 with P.S. Kotwali, District Azamgarh. Thereafter, the investigating officer filed the chargesheet against the appellant herein and one another for the offences under Sections 419, 420, 323, 504 and 506 IPC.</h4><h4>2.1 That the appellant herein approached the High Court by way of criminal miscellaneous application No. 5213 of 2018 under Section 482 Cr.P.C. to quash chargesheet dated 10.05.2017 as well as the entire criminal proceedings. By the impugned judgment and order, the High Court has dismissed the said application and has refused to quash the criminal proceedings/chargesheet. Hence, the appellant has preferred the present appeal.<br>5. Having heard learned counsel appearing on behalf of the appellant and learned counsel appearing on behalf of the respondent-State and having gone through the averments in the complaint and the chargesheet, even if the averments made in the complaint are taken on their face, they do not constitute the ingredients necessary for the offence under Sections 419 & 420 IPC. As observed and held by this Court in the case of Prof. R.K. Vijayasarathy v. Sudha Seetharam (2019) 16 SCC 739, the ingredients to constitute an offence under Section 420 are as follows:<br>i) a person must commit the offence of cheating under Section 415; and<br>ii) the person cheated must be dishonestly induced to<br>a) deliver property to any person; or<br>b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.<br>Thus, cheating is an essential ingredient for an act to constitute an offence under Section 420 IPC. Cheating is defined under Section 415 of the IPC. The ingredients to constitute an offence of cheating are as follows:<br>i) there should be fraudulent or dishonest inducement of a person by deceiving him:<br>The person who was induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or the person who was induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived.<br>Thus, a fraudulent or dishonest inducement is an essential ingredient of the offence under Section 415 IPC. A person who dishonestly induced any person to deliver any property is liable for the offence of cheating.<br>6. .... Having gone through the complaint/FIR and even the chargesheet, it cannot be said that the averments in the FIR and the allegations in the complaint against the appellant constitute an offence under Section 419 & 420 IPC. .....even if all the allegations in the complaint taken at the face value are true, in our view, the basic essential ingredients of cheating are missing. Therefore, this was a fit case for the High Court to exercise the jurisdiction under Section 482 Cr.P.C. and to quash the criminal proceedings against the appellant herein for the offences under Section 419 & 420 IPC. The High Court has failed to exercise the jurisdiction vested in it by not quashing the criminal proceedings against the appellant herein for the offences under Sections 419 & 420 IPC.<br>8. In view of the above and for the reasons stated above, the present appeal is allowed in part. The criminal proceedings against the appellant herein for the offences under Section 419 & 420 IPC arising out of Case Crime No. 153/2016, registered with P.S. Kotwali, District Azamgarh, pending in the Court of learned Chief Judicial Magistrate, Azamgarh are hereby quashed and set aside.<br><br></h4>', 'a393d8adeaab843892cc92a277d8ba6e.jpg', 'cd129a4420c2415600900a80b7bab998.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-01', 1, '', '', '2021-03-02 18:39:21', '2021-03-02 18:39:54'),
(522, 'LS1GWrwizTcO0gnbZV5sgrRN5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Cr.P.C. Section 210. Merely because on the same facts earlier the complaint is filed  and is pending there is no bar to lodge the Police FIR with the same allegations unless the subsequent FIR is filed only to harass the accused. Supreme Court. 1:3:2021', '<h4>Kapil Agarwal and others vs Sanjay Sharma and others. Criminal Appeal 142 of 2021 decided on 1 March 2021. </h4><h4>Justice Dr. Dhananjaya Y. Chandrachud and Justice M.R. Shah. </h4><h4>Judgment Link:<a href=\"https://main.sci.gov.in/supremecourt/2017/31448/31448_2017_36_1502_26554_Judgement_01-Mar-2021.pdf\" target=\"_blank\"> https://main.sci.gov.in/supremecourt/2017/31448/31448_2017_36_1502_26554_Judgement_01-Mar-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs: </span>3.1 It is submitted that the contents of the FIR show that it has been registered for recovery of commission and discounts on sale which alleged to have taken in the regular business transactions place over a period of 15 months between the parties. Hence, it is a purely contractual dispute on the face of it.</h4><h4>3.2 It is submitted that no civil proceedings have been filed by the complainant for recovery of the alleged due amount. It is submitted that the impugned FIR has been lodged solely with a view to arm twist and extort money from the appellants.</h4><h4>3.3 It is further submitted that there is not even a whisper about the pendency of the application under Section 156(3) Cr.P.C. pending before the learned Magisterial Court, in the FIR. Nor is there any mention of the fact that there is an ongoing case under Section 138 of the NI Act.</h4><h4>5. ....It is the case on behalf of the appellants that as on the same allegations the private respondent-complainant has filed an application under Section 156(3) Cr.P.C., which is pending before the learned Magistrate, the impugned FIR with the same allegations and averments would not be maintainable, and therefore, the FIR lodged with the police station Loni Border, District Ghaziabad deserves to be quashed and set aside. The aforesaid cannot be \r\naccepted for the simple reason that Code of Criminal Procedure permits such an eventuality of a complaint case and enquiry or trial by the Magistrate in a complaint case and an investigation by the police pursuant to the FIR. At this stage, Section 210 Cr.P.C. is required to be referred to.</h4><h4>Thus, as per Section 210 Cr.P.C., when in a case instituted otherwise than on a police report, i.e., in a complaint case, during the course of the inquiry or trial held by the Magistrate, it appears to the Magistrate that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. It also provides that if a report is made by the investigating police officer under Section 173 Cr.P.C. and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. It also further provides that if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of Cr.P.C.</h4><h4>Thus, merely because on the same set of facts with the same allegations and averments earlier the complaint is filed, there is no bar to lodge the FIR with the police station with the same allegations and averments.</h4><h4>6. However, at the same time, if it is found that the subsequent FIR is an abuse of process of law and/or the same has been lodged only to harass the accused, the same can be quashed in exercise of powers under Article 226 of the Constitution or in exercise of powers under Section 482 Cr.P.C. In that case, the complaint case will proceed further in accordance with the provisions of the Cr.P.C.</h4><h4>6.1 As observed and held by this Court in catena of decisions, inherent jurisdiction under Section 482 Cr.P.C. and/or under Article 226 of the Constitution is designed to achieve salutary purpose that criminal proceedings ought not to be permitted to degenerate into weapon of harassment. When the Court is satisfied that criminal proceedings amount to an abuse of process of law or that it amounts to bringing pressure upon accused, in exercise of inherent powers, such proceedings can be quashed.</h4><h4>6.2 As held by this Court in the case of Parbatbhai Aahir v. State of Gujarat (2017) 9 SCC 641, Section 482 Cr.P.C. is prefaced with an overriding provision. The statute saves the inherent power of the High Court, as a superior court, to make such orders as are necessary (i) to prevent an abuse of the process of any Court; or (ii) otherwise to secure the ends of justice. Same are the powers with the High Court, when it exercises the powers under Article 226 of the Constitution.</h4><h4>7. Applying the law laid down by this Court, referred to hereinabove, to the facts of the case on hand, subsequent FIR filed by the respondent – original complainant can be said to be an abuse of process of law and the same to be bringing pressure on the accused,. </h4><h4>Under the circumstances, the impugned FIR is nothing but an abuse of process of law and can be said to be filed with a view to harass the appellants.</h4><h4>8. We are not expressing anything on merits whether, any case is made out against the appellants for the offences alleged in 156(3) Cr.P.C. application as the same is pending before the learned Magistrate and the learned Magistrate is to take call on the same. Therefore, when the impugned FIR is nothing but an abuse of process of law and to harass the appellants-accused, we are of the opinion that the High Court ought to have exercised the powers under Article 226 of the Constitution of India/482 Cr.P.C. and ought to have quashed the impugned FIR to secure the ends of justice.</h4><h4><br></h4>', '79df91b646c6e403a3d96e513341080b.png', '01815a20ed7bbe5b49c10f55dcb008ac.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-01', 1, '', '', '2021-03-03 01:07:01', '2021-03-03 01:30:24'),
(523, 'W7PQ2dZCwStxuCSsmTuJtvy3Q', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Proceedings under Sections 138 and 141 cannot be initiated against Corporate debtor during the moratorium period under Section 14 of the Insolvency and Bankruptcy Code. Supreme Court. 1 March 2021.  ', '<h4>P. Mohanraj and others vs M/s. Shah Brothers Ispat Pvt Ltd. Criminal Appeal 10355 of 2018 and connected matters decided on 1 March 2021. </h4><h4>Justice Rohinton Fali Nariman, Justice Navin Shah and Justice K.M. Joseph. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2018/34430/34430_2018_33_1501_26551_Judgement_01-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/34430/34430_2018_33_1501_26551_Judgement_01-Mar-2021.pdf</a></h4><h4><span style=\"font-size: 1.3125rem;\"><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs:</span></span></h4><h4><span style=\"color: rgb(206, 0, 0);\"><span style=\"font-size: 1.3125rem;\">5. The important question that arises in this appeal is whether the\r\ninstitution or continuation of a proceeding under Section 138/141 of the\r\nNegotiable Instruments Act can be said to be covered by the moratorium\r\nprovision, namely, Section 14 of the </span>Insolvency and Bankruptcy Code, 2016. </span></h4><h4><span style=\"font-size: 1.3125rem;\">10. A cursory look at Section 14(1) makes it clear that subject to the\r\nexceptions contained in sub-sections (2) and (3), on the insolvency\r\ncommencement date, the Adjudicating Authority shall mandatorily, by\r\norder, declare a moratorium to prohibit what follows in clauses (a) to (d).\r\nImportantly, under sub-section (4), this order of moratorium does not\r\ncontinue indefinitely, but has effect only from the date of the order\r\ndeclaring moratorium till the completion of the corporate insolvency\r\nresolution process which is time bound, either culminating in the order of\r\nthe Adjudicating Authority approving a resolution plan or in liquidation.</span></h4><h4><span style=\"font-size: 1.3125rem;\">11. The two exceptions to Section 14(1) are contained in sub-sections\r\n(2) and (3) of Section 14. Under sub-section (2), the supply of essential\r\ngoods or services to the corporate debtor during this period cannot be\r\nterminated or suspended or even interrupted, as otherwise the corporate\r\ndebtor would be brought to its knees and would not able to function as a\r\ngoing concern during this period. The exception created in sub-section (3)\r\n(a) is important as it refers to “transactions” as may be notified by the\r\nCentral Government in consultation with experts in finance. </span></h4><h4><span style=\"font-size: 1.3125rem;\">14. We now come to the language of Section 14(1)(a). It will be noticed\r\nthat the expression “or” occurs twice in the first part of Section 14(1)(a) –\r\nfirst, between the expressions “institution of suits” and “continuation of\r\n15\r\npending suits” and second, between the expressions “continuation of\r\npending suits” and “proceedings against the corporate debtor…”. The\r\nsweep of the provision is very wide indeed as it includes institution,\r\ncontinuation, judgment and execution of suits and proceedings. It is\r\nimportant to note that an award of an arbitration panel or an order of an\r\nauthority is also included. This being the case, it would be incongruous to\r\nhold that the expression “the institution of suits or continuation of pending\r\nsuits” must be read disjunctively as otherwise, the institution of arbitral\r\nproceedings and proceedings before authorities cannot be subsumed\r\nwithin the expression institution of “suits” which are proceedings in civil\r\ncourts instituted by a plaint (see Section 26 of the Code of Civil\r\nProcedure, 1908). Therefore, it is clear that the expression “institution of\r\nsuits or continuation of pending suits” is to be read as one category, and\r\nthe disjunctive “or” before the word “proceedings” would make it clear that\r\nproceedings against the corporate debtor would be a separate category.\r\nWhat throws light on the width of the expression “proceedings” is the\r\nexpression “any judgment, decree or order” and “any court of law,\r\ntribunal, arbitration panel or other authority”. Since criminal proceedings\r\nunder the Code of Criminal Procedure, 1973 [“CrPC”] are conducted\r\nbefore the courts mentioned in Section 6, CrPC, it is clear that a Section\r\n138 proceeding being conducted before a Magistrate would certainly be a\r\nproceeding in a court of law in respect of a transaction which relates to a\r\n16\r\ndebt owed by the corporate debtor. Let us now see as to whether the\r\nexpression “proceedings” can be cut down to mean civil proceedings\r\nstricto sensu by the use of rules of interpretation such as ejusdem generis\r\nand noscitur a sociis.</span></h4><h4>78. In conclusion, disagreeing with the Bombay High Court and the Calcutta High Court judgments in Tayal Cotton Pvt. Ltd. v. State of Maharashtra, 2018 SCC OnLine Bom 2069 : (2019) 1 Mah LJ 312 and M/s MBL Infrastructure Ltd. v. Manik Chand Somani, CRR 3456/2018 (Calcutta High Court; decided on 16.04.2019), respectively, we hold that a Section 138/141 proceeding against a corporate debtor is covered by Section 14(1)(a) of the IBC. </h4><h4><span style=\"font-size: 1.3125rem;\">\r\n</span></h4><h4><span style=\"font-size: 1.3125rem; color: rgb(206, 0, 0); background-color: rgb(255, 255, 0);\">Cases referred: </span></h4><h4>1. State of Assam v. Ranga Mahammad, (1967) 1 SCR 454, </h4><h4>2. Jagdish Chander Gupta v. Kajaria Traders (India) Ltd., (1964) 8 SCR 50, </h4><h4>3. Rajasthan State Electricity Board v. Mohan Lal (1967) 3 SCR 377, </h4><h4>4. CBI v. Braj Bhushan Prasad, (2001) 9 SCC 432, </h4><h4>5. Godfrey Phillips India Ltd. v. State of U.P., (2005) 2 SCC 515, </h4><h4>6. Vikram Singh v. Union of India, (2015) 9 SCC 502,  </h4><h4>7. Pioneer Urban Land and Infrastructure Ltd. v. Union of India, (2019) 8 SCC 416,</h4><h4>8. Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17,</h4><h4>9. Macquarie Bank Ltd. v. Shilpi Cable Technologies Ltd., (2018) 2 SCC 674,</h4><h4>10. Giriraj Garg v. Coal India Ltd (2019) 5 SCC 192, </h4><h4>11. Manish Kumar v. Union of India, 2021 SCC OnLine SC 30,  </h4><h4>12. CIT v. Ishwarlal Bhagwandas, (1966) 1 SCR 190, </h4><h4>13. Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663, </h4><h4>14. JIK Industries Ltd. v. Amarlal V. Jumani, (2012) 3 SCC 255,</h4><h4>15. Kaushalya Devi Massand v. Roopkishore Khore, (2011) 4 SCC 593, </h4><h4>16. R. Vijayan v. Baby, (2012) 1 SCC 260,  </h4><h4>17. Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129, </h4><h4>18. Lafarge Aggregates & Concrete India (P) Ltd. v. Sukarsh Azad, (2014) 13 SCC 779, </h4><h4>19. Meters and Instruments (P) Ltd. v. Kanchan Mehta, (2018) 1 SCC 560, </h4><h4>20. M. Abbas Haji v. T.N. Channakeshava, (2019) 9 SCC 606, </h4><h4>21. H.N. Jagadeesh v. R. Rajeshwari, (2019) 16 SCC 730, </h4><h4>22. Niaz Mohd. v. State of Haryana, (1994) 6 SCC 332, </h4><h4>23. T.N. Godavarman Thirumulpad (102) v. Ashok Khot, (2006) 5 SCC 1,</h4><h4>24. Andre Paul Terence Ambard v. Attorney-General of Trinidad and Tobago, AIR 1936 PC 141,</h4><h4>25. Sahdeo v. State of U.P., (2010) 3 SCC 705, </h4><h4>26. Maninderjit Singh Bitta v. Union of India, (2012) 1 SCC 273, </h4><h4>27. Kanwar Singh Saini v. High Court ofDelhi, (2012) 4 SCC 307, </h4><h4>28. T.C. Gupta v. Bimal Kumar Dutta, (2014) 14 SCC 446, </h4><h4>29. BSI Ltd. v. Gift Holdings (P) Ltd., (2000) 2 SCC 737, </h4><h4>30, Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities Ltd.(2000) 2 SCC 745, </h4><h4>31. S.V. Kandeakar v. V.M. Deshpande, (1972) 1 SCC 438, </h4><h4>32. Sudarshan Chits (I) Ltd. v. O. Sukumaran Pillai, (1984) 4 SCC 657, </h4><h4>33. Central Bank of India v. Elmot Engineering Co., (1994) 4 SCC 159, </h4><h4>34. D.K. Kapur v. Reserve Bank of India, 2001 SCC OnLine Del 67, </h4><h4>35. Indorama Synthetics (I) Ltd. v. State of Maharashtra, 2016 SCC OnLine Bom 2611, </h4><h4>36. Power Grid Corporation of India Ltd. v. Jyoti Structures Ltd., 2017 SCC OnLine Del 12189, </h4><h4>37. Inderjit C. Parekh v. V.K. Bhatt, (1974) 4 SCC 313,  </h4><h4>38. Deputy Director, Directorate of Enforcement Delhi v. Axis Bank, 2019 SCC OnLine Del 7854, </h4><div><br></div><h4><br></h4>', '50264180b534bb877442a767951ce058.jpg', '95f12e966f9d3ea89ace8259a53c9dc9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-01', 1, '', '', '2021-03-03 01:55:29', '2021-03-03 03:18:50'),
(524, '8xeVo7j6GLXdBrQVOWdsrV7fd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Building Tax on Educational Institutions. Residential accommodations for nuns and hostels attached to institutions are also exempted. Supreme Court. 1 March 2021. ', '<h4>Government of Kerala and another vs Mother Superior Adoration Convent. Civil Appeal 202 of 2012 decided on 1 March 2021. Justice R F Nariman and Justice B R Gavai<br></h4><h4>Judgment Link – <a href=\"https://main.sci.gov.in/supremecourt/2008/12996/12996_2008_33_1502_26551_Judgement_01-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2008/12996/12996_2008_33_1502_26551_Judgement_01-Mar-2021.pdf&nbsp;</a><br><span style=\"background-color: rgb(255, 255, 0);\">Head note </span>– Kerala Building Tax Act – Whether residential accommodation for nuns and hostels attached to educational institutions fall within the exemption under Section 3(1)(b) of the Act – exempted buildings include buildings used for purpose of educational, religious, charitable etc. purposes – Test : Dominant object&nbsp; is the test to be applied to see whether such building is or is not exempt.<br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs: </span>2. All these appeals pertain to an exemption provision contained in the Kerala Building Tax Act, 1975. Under Section 3(1)(b) buildings that are used principally for religious, charitable or educational purposes or as factories or workshops are exempted from building tax under the Act. All of the appeals, except one, are by the State of Kerala against a judgment dated 22.11.2007 passed by a Division Bench of the Kerala High Court in Government of Kerala &amp; Anr v. Mother Superior Adoration Convent (Civil Appeal No.202 of 2012) and a Full Bench judgment in State of Kerala &amp; Ors v. Unity Hospital (P) Ltd. (Civil Appeal No. 207 of 2012), being a judgment dated 21.12.2010. Both judgments decided to exempt the buildings in question. The other appeals by the State contain judgments which follow either or both of these judgments. The only appeal by an assessee namely, Administrator, Jos Giri Hospital v. Government of Kerala (Civil Appeal No.204 of 2012), is from a judgment of the Division Bench of the Kerala High Court deciding the case in favour of the State. However, this judgment was referred to the Full Bench which decided the judgment in State of Kerala &amp; Ors v. Unity Hospital (P) Ltd. (Civil Appeal No. 207 of 2012) and has been stated to have reached an incorrect conclusion.<br>3. On facts, there is a similarity in most of the cases before us. Either there are residential accommodations for nuns as in the first appeal before us or there are hostel accommodations which are attached to various educational institutions. In both cases, the State claims that no exemption should be granted as residential accommodation for nuns and hostels for students would be for residential as apart from religious or educational purposes and would not therefore be covered by the exemption contained in Section 3(1)(b) of the Act.<br>11. Before coming to the case law that has been cited before us, it is important to first analyse Section 3(1)(b) with which we are directly concerned. First and foremost, the subject matter is “buildings” which as defined, would include a house or other structure. Secondly, the exemption is based upon user and not ownership. Third, what is important is the expression “principally”, showing thereby that the legislature decided to grant this exemption qua buildings which are “principally” and not exclusively used for the purposes mentioned therein. Dominant object therefore is the test to be applied to see whether such building is or is not exempt. Fourthly, religious, charitable or educational purposes are earmarked by the legislature as qualifying for the exemption as they do not pertain to business or commercial activity. Fifthly, what is important is that even factories or workshops which produce goods and provide services are also exempt, despite profit motive, as the legislature obviously wishes to boost production in factories and services in workshops. What is important to note is that the expression “used principally for” is wider than the expression “as” which precedes the words “factories or workshops”.&nbsp;<br>12. A reading of the provision would show that the object for exempting buildings which are used principally for religious, charitable or educational purposes would be for core religious, charitable or educational activity as well as purposes directly connected with religious activity. One example will suffice to show the difference between a purpose that is directly connected with religious or educational activity and a purpose which is only indirectly connected with such activity. Take a case where, unlike the facts in Civil Appeal No. 202 of 2012, nuns are not residing in a building next to a convent so that they may walk over to the convent for religious instruction. Take a case where the neighbouring building to the convent is let out on rent to any member of the public, and the rent is then utilised only for core religious activity. Can it be said that the letting out at market rent would be connected with religious activity because the rental that is received is ploughed back only into religious activity? Letting out a building for a commercial purpose would lose any rational connection with religious activity. The indirect connection with religious activity being the profits which are ploughed back into religious activity would obviously not suffice to exempt such a building. But if on the other hand, nuns are living in a neighbouring building to a convent only so that they may receive religious instruction there, or if students are living in a hostel close to the school or college in which they are imparted instruction, it is obvious that the purpose of such residence is not to earn profit but residence that is integrally connected with religious or educational activity<br>13. A reading of the other provisions of the Act strengthens the aforesaid conclusion. “Residential building” is defined separately from “building” in Section 2(l). A “residential building” means a building or any other structure or part thereof built exclusively for residential purpose. It is important to note that “residential building” is not the subject matter of exemption under Section 3 of the Act. Quite the contrary is to be found in Section 5A of the Act, which starts with a non-obstante clause, and which states that a luxury tax is to be charged on all residential buildings having a plinth area of 278.7 square meters and which have been completed on or after 19 1.4.1999. If we were to accept the contention of the State, buildings in which nuns are housed and students are accommodated in hostels which have been completed after 1.4.1999 and which have a plinth area of 278.7 square meters would be liable to pay luxury tax as these buildings would now no longer be buildings used principally for religious or educational purposes, but would be residential buildings used exclusively for residential purposes. This would turn the object sought to be achieved in exempting such buildings on its head. For this reason also, we cannot countenance a plea by the State that buildings which are used for purposes integrally connected with religious or educational activity are yet outside the scope of the exemption contained in Section 3(1)(b) of the Act.&nbsp;<br>24.This being the case, it is obvious that the beneficial purpose of the exemption contained in Section 3(1)(b) must be given full effect to, the line of authority being applicable to the facts of these cases being the line of authority which deals with beneficial exemptions as opposed to exemptions generally in tax statutes. This being the case, a literal formalistic interpretation of the statute at hand is to be eschewed. We must first ask ourselves what is the object sought to be achieved by the provision, and construe the statute in accord with such object. And on the assumption that any ambiguity arises in such construction, such ambiguity must be in favour of that which is exempted. Consequently, for the reasons given by us, we agree with the conclusions reached by the impugned judgments of the Division Bench and the Full Bench.&nbsp;<br></h4><h4>25. The matter can also be seen from a slightly different angle. Where a High Court construes a local statute, ordinarily deference must be given to the High Court judgments in interpreting such a statute, particularly when they have stood the test of time</h4><h4>26. In the result, the appeals filed by the State of Kerala are dismissed. </h4><h4><i>Compiled by Angad Kamat, Advocate, Bangalore</i><br></h4><p><br></p>', '82005bb17ee5161542ea6f9f0b8468f5.png', 'c26420b148319dbdcfa8f1470d92e9a8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-01', 1, '', '', '2021-03-03 03:41:06', '2021-03-03 04:10:27');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(525, 'N0CT3D7AVilT5cbpNMbMw0tQE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Income Tax Act. Amounts paid by resident Indian end users to non resident computer software manufacturers for computer software is not royalty for copyright in the software. Amount does not give rise to income taxable in India. Supreme Court 2 March 2021', '<h4>Engineering Analysis Centre of Excellence Private Limited vs The Commissioner of Income Tax and another. </h4><h4>Civil Appeal 8733-8734 of 2018 and connected matters decided on 2 March 2021. </h4><h4>Justice Rohinton Fali Nariman, Justice Hemant Gupta and Justice B.R. Gavai.&nbsp;<br></h4><h4>Judgment Link: <a href=\"file:///C:/Users/Nitin/Desktop/AAAA/F/38137_2011_33_1501_26629_Judgement_02-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2011/38137/38137_2011_33_1501_26629_Judgement_02-Mar-2021.pdf<br></a><span style=\"background-color: rgb(255, 255, 0);\">Facts: </span>One group of appeals arises from a common judgment of the High Court of Karnataka dated 15.10.2011 reported as CIT v. Samsung Electronics Co. Ltd., (2012) 345 ITR 494, by which the question which was posed before the High Court, was answered stating that the amounts paid by the concerned persons resident in India to nonresident, foreign software suppliers, amounted to royalty and as this was so, the same constituted taxable income deemed to accrue in India under section 9(1)(vi) of the Income Tax Act, 1961, thereby making it incumbent upon all such persons to deduct tax at source and pay such tax deductible at source under section 195 of the Income Tax Act. This judgment dated 15.10.2011 has been relied upon by the subsequent impugned judgments passed by the High Court of Karnataka to decide the same question in favour of the Revenue.</h4><h4>169. Our answer to the question posed before us, is that the amounts paid by resident Indian end-users/distributors to non-resident computer software manufacturers/suppliers, as consideration for the resale/useof the computer software through EULAs/distribution agreements, is not the payment of royalty for the use of copyright in the computer software, and that the same does not give rise to any income taxable in India, as a result of which the persons referred to in section 195 of the Income Tax Act were not liable to deduct any TDS under section 195 of the Income Tax Act. The answer to this question will apply to all four categories of cases enumerated by us in paragraph 4 of this judgment.<br>170.The appeals from the impugned judgments of the High Court of Karnataka are allowed, and the aforesaid judgments are set aside. The ruling of the AAR in Citrix Systems (AAR) (supra) is set aside. The appeals from the impugned judgments of the High Court of Delhi are dismissed.&nbsp;</h4>', '4a2d00f9c0911abc384862a0672c513e.jpeg', '76b9bbfea7cf3cd13f1c84c9b5f248a1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-02', 1, '', '', '2021-03-03 04:44:01', '2021-03-03 05:02:14'),
(526, 'raTVRcMXcCzu6OM1Jg2PTw37w', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act. Proceedings under Section 34 cannot be initiated or proceeded against corporate debtor during moratorium period under Section 14 of the Insolvency and Bankruptcy Code. Supreme Court 1 March 2021', '<h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><h4 style=\"margin-top:7.5pt;margin-right:0cm;margin-bottom:7.5pt;\r\nmargin-left:0cm;line-height:normal;mso-outline-level:4\">P. Mohanraj and others vs M/s. Shah Brothers Ispat Pvt Ltd. Criminal\r\nAppeal 10355 of 2018 and connected matters decided on 1 March 2021 Justice\r\nRohinton Fali Nariman, Justice Navin Shah and Justice K.M. Joseph.<br>Judgment Link:<a href=\"https://main.sci.gov.in/supremecourt/2018/34430/34430_2018_33_1501_26551_Judgement_01-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/34430/34430_2018_33_1501_26551_Judgement_01-Mar-2021.pdf</a><br>Relevant paragraphs: 74. Shri Mehta then relied upon Power Grid Corporation of India Ltd. v.\r\nJyoti Structures Ltd., 2017 SCC OnLine Del 12189 : (2018) 246 DLT 485, in which\r\nthe Delhi High Court held that a Section 34 application to set aside an award\r\nunder the Arbitration and Conciliation Act, 1996 would not be covered by Section 14 of the IBC. <b style=\"background-color: rgb(255, 255, 0);\">This judgment does not state\r\nthe law correctly as it is clear that a Section 34 proceeding is certainly a proceeding against the corporate debtor which may result in an arbitral award against the corporate debtor being upheld, as a result of which, monies would then be payable by the corporate debtor. A Section 34 proceeding is a proceeding against the corporate debtor in a court of\r\nlaw pertaining to a challenge to an arbitral award and would be covered just as an appellate proceeding in a decree from a suit would be covered.\r\nThis judgment does not, therefore, state the law correctly. </b><br><o:p> </o:p></h4><p class=\"MsoNormal\" style=\"margin-top:7.5pt;margin-right:0cm;margin-bottom:7.5pt;\r\nmargin-left:0cm;line-height:normal;mso-outline-level:4\"><o:p></o:p></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:7.5pt;margin-right:0cm;margin-bottom:7.5pt;\r\nmargin-left:0cm;line-height:normal;mso-outline-level:4\"><o:p></o:p></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:7.5pt;margin-right:0cm;margin-bottom:7.5pt;\r\nmargin-left:0cm;line-height:normal;mso-outline-level:4\"><o:p></o:p></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:7.5pt;margin-right:0cm;margin-bottom:7.5pt;\r\nmargin-left:0cm;line-height:normal;mso-outline-level:4\"><o:p></o:p></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:7.5pt;margin-right:0cm;margin-bottom:7.5pt;\r\nmargin-left:0cm;line-height:normal;mso-outline-level:4\"><o:p></o:p></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:7.5pt;margin-right:0cm;margin-bottom:7.5pt;\r\nmargin-left:0cm;line-height:normal;mso-outline-level:4\"><o:p></o:p></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:7.5pt;margin-right:0cm;margin-bottom:7.5pt;\r\nmargin-left:0cm;line-height:normal;mso-outline-level:4\"><o:p></o:p></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:7.5pt;margin-right:0cm;margin-bottom:7.5pt;\r\nmargin-left:0cm;line-height:normal;mso-outline-level:4\"><o:p></o:p></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:7.5pt;margin-right:0cm;margin-bottom:7.5pt;\r\nmargin-left:0cm;line-height:normal;mso-outline-level:4\"><o:p></o:p></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:7.5pt;margin-right:0cm;margin-bottom:7.5pt;\r\nmargin-left:0cm;line-height:normal;mso-outline-level:4\"><o:p></o:p></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:7.5pt;margin-right:0cm;margin-bottom:7.5pt;\r\nmargin-left:0cm;line-height:normal;mso-outline-level:4\"><o:p></o:p></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:7.5pt;margin-right:0cm;margin-bottom:7.5pt;\r\nmargin-left:0cm;line-height:normal;mso-outline-level:4\"><o:p></o:p></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:7.5pt;margin-right:0cm;margin-bottom:7.5pt;\r\nmargin-left:0cm;line-height:normal;mso-outline-level:4\"><o:p></o:p></p>\r\n\r\n</h4>', 'c09e8cadd6ff5bb91378347b91604b68.jpg', 'e268665003d13771a63523f58791fe52.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-01', 1, '', '', '2021-03-03 23:46:48', '2021-03-03 23:48:01'),
(527, 'X21zOvsPSlQT5atrSvQ1h1kd2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act 1996. Period of limitation for filing application under Section 34 commences from  the date on which the party making the application has received a signed copy of the arbitral award. Supreme Court. 2 March 2021', '<h4>Dakshin Haryana Bijli Vitran Nigam Ltd vs M/s Navigant Technologies Pvt Ltd. </h4><h4>Civil Appeal 791 of 2021 decided on 2 March 2021. </h4><h4>Justice Indu Malhotra and Justice Ajay Rastogi</h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/17590/17590_2020_43_1501_26606_Judgement_02-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/17590/17590_2020_43_1501_26606_Judgement_02-Mar-2021.pdf</a><br><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs: </span>4(xvii) The date on which the signed award is provided to the parties is a crucial date in arbitration proceedings under the Indian Arbitration and Conciliation Act, 1996. It is from this date that: (a) the period of 30 days’ for filing an application under Section 33 for correction and interpretation of the award, or additional award may be filed; (b) the arbitral proceedings would terminate as provided by Section 32(1) of the Act; (c) the period of limitation for filing objections to the award under Section 34 commences. Section 34 provides recourse for judicial scrutiny of the award by a Court, upon making an application under sub-sections (2) and (3) for setting aside the award. The period of limitation for filing the objections to the award u/S. 34 commences from  the date on which the party making the application has “received” a signed copy of the arbitral award, as required by Section 31(5) of the 1996 Act. Section 34(3) provides a specific time limit of three months from the date of “receipt” of the award, and a further period of thirty days, if the Court is satisfied that the party was prevented by sufficient cause from making the application within the said period, but not thereafter.<br>6. We are of the considered opinion that the period of limitation for filing objections would have to be reckoned from the date on which the signed copy of the award was made available to the parties</h4>', '5e86370d3a5cf617655a29c2f11274cc.PNG', 'eddf6daaeb2f422c4ba1fa802f503f3b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-02', 1, '', '', '2021-03-04 00:47:14', '2021-03-04 00:51:54'),
(528, 'e9Vg98CBcKL21fbh2lDOzNxrR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Recruitment process. Where entire process is found to be flawed and seriously impinges upon legitimacy of examinations - its cancellation is justified though it causes hardship to few who are not involved in wrong doing. Supreme Court 3 March 2021', '<h4>Sachin Kumar &amp; ors vs Delhi Subordinate Service Selection Board.</h4><h4>Civil Appeal 639-640 of 2021 decided on 3 March 2021</h4><h4>Justice Dr Dhananjaya Y Chandrachud and Justice M R Shah.</h4><h4><span style=\"font-size: 1.3125rem;\"><span style=\"background-color: rgb(255, 255, 0);\">Judgment Link</span>:&nbsp;</span><a href=\"https://main.sci.gov.in/supremecourt/2020/5711/5711_2020_36_1501_26636_Judgement_03-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/5711/5711_2020_36_1501_26636_Judgement_03-Mar-2021.pdf&nbsp;</a><span style=\"font-size: 1.3125rem;\"><a href=\"https://main.sci.gov.in/supremecourt/2020/5711/5711_2020_36_1501_26636_Judgement_03-Mar-2021.pdf\" target=\"_blank\">&nbsp;&nbsp;</a></span></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs: </span>2 This judgment visits a familiar conundrum in service jurisprudence. The constitutional values which undergird Articles 14 and 16 mandate that selection processes conducted by public authorities to make recruitments have to be fair, transparent and accountable. All too often, human fallibility and foibles intrude into the selection processes. Selection involves intense competition and there is no dearth of individuals who try and bend the rules to gain an unfair leap in the race. Irregularities in the process give rise to misgivings over whether the process has denied equal access to all persons. The sanctity of the selection process comes under a cloud. The detection of individual wrongdoing by candidates may result in action being taken to exclude those whose credentials or performance is tainted. But when the entire process is tainted, the authority in charge of conducting it may decide to cancel the selection as a whole. Judicial review is then invoked to challenge the decision to cancel the entire process. The guiding principles have evolved over the past five decades as new challenges emerged and novel attempts to suborn the legitimacy of recruitment processes have come to the fore. The Delhi High Court in the present case upheld the view of the Central Administrative Tribunal that the cancellation of the entire process was invalid but it confined the relief to six candidates who had moved the proceedings before the Tribunal in the first instance. Like other cases of its genre, this batch of appeals calls the court to balance two competing considerations: the need to preserve public confidence in and the sanctity of selection to public posts and the requirement of observing fairness to candidates who invest time and resources in attempting to clear through a selection. Both these considerations have a constitutional foundation going beyond service and administrative law principles. The issue has travelled to the court for resolution and the path ahead requires us to revisit and evolve the law on the subject.</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">F.The position in law</b><br>33 In deciding this batch of SLPs, we need not re-invent the wheel. Over the last five decades, several decisions of this Court have dealt with the fundamental issue of when the process of an examination can stand vitiated. Essentially, the answer to the issue turns upon whether the irregularities in the process have taken place at a systemic level so as to vitiate the sanctity of the process. There are cases which border upon or cross-over into the domain of fraud as a result of which the credibility and legitimacy of the process is denuded. This constitutes one end of the spectrum where the authority conducting the examination or convening the selection process comes to the conclusion that as a result of supervening event or circumstances, the process has lost its legitimacy, leaving no option but to cancel it in its entirety. Where a decision along those lines is taken, it does not turn upon a fact-finding exercise into individual acts involving the use of mal-practices or unfair means. Where a recourse to unfair means has taken place on a systemic scale, it may be difficult to segregate the tainted from the untainted participants in the process. Large scale irregularities including those which have the effect of denying equal access to similarly circumstanced candidates are suggestive of a malaise which has eroded the credibility of the process. At the other end of the spectrum are cases where some of the participants in the process who appear at the examination or selection test are guilty of irregularities. In such a case, it may well be possible to segregate persons who are guilty of wrong-doing from others who have adhered to the rules and to exclude the former from the process. In such a case, those who are innocent of wrong-doing should not pay a price for those who are actually found to be involved in irregularities. By segregating the wrong-doers, the selection of the untainted candidates can be allowed to pass muster by taking the selection process to its logical conclusion. This is not a mere matter of administrative procedure but as a principle of service jurisprudence it finds embodiment in the constitutional duty by which public bodies have to act fairly and reasonably. A fair and reasonable process&nbsp; of selection to posts subject to the norm of equality of opportunity under Article 16(1) is a constitutional requirement. A fair and reasonable process is a fundamental requirement of Article 14 as well. Where the recruitment to public employment stands vitiated as a consequence of systemic fraud or irregularities, the entire process becomes illegitimate. On the other hand, where it is possible to segregate persons who have indulged in mal-practices and to penalise them for their wrongdoing, it would be unfair to impose the burden of their wrong-doing on those who are free from taint. To treat the innocent and the wrong-doers equally by subjecting the former to the consequence of the cancellation of the entire process would be contrary to Article 14 because unequals would then be treated equally. The requirement that a public body must act in fair and reasonable terms animates the entire process of selection. The decisions of the recruiting body are hence subject to judicial control subject to the settled principle that the recruiting authority must have a measure of discretion to take decisions in accordance with law which are best suited to preserve the sanctity of the process. Now it is in the backdrop of these principles, that it becomes appropriate to advert to the precedents of this Court which hold the field.</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">57. Recruitment to public services must command public confidence. Persons who are recruited are intended to fulfil public functions associated with the functioning of the Government. Where the entire process is found to be flawed, its cancellation may undoubtedly cause hardship to a few who may not specifically be found to be involved in wrong-doing. But that is not sufficient to nullify the ultimate decision to cancel an examination where the nature of the wrong-doing cuts through the entire process so as to seriously impinge upon the legitimacy of the examinations which have been held for recruitment. Both the High Court and the Tribunal have, in our view, erred in laying exclusive focus on the report of the second Committee which was confined to the issue of impersonation. The report of the second Committee is only one facet of the matter. The Deputy Chief Minister was justified in going beyond it and ultimately recommending that the entire process should be cancelled on the basis of the findings which were arrived at in the report of the first Committee. Those findings do not stand obliterated nor has the Tribunal found any fault with those findings. In this view of the matter, both the judgments of the Tribunal and the High Court are unsustainable.&nbsp;</b></h4><p><b style=\"background-color: rgb(255, 255, 0);\"><br></b></p><p><br></p><p><br></p><p><br></p><h4><br></h4>', 'a1fa1ab59b0e825ac33963d94e3a490d.PNG', '1858be798ef5462ba1bb8ceacb9e2f19.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-03', 1, '', '', '2021-03-04 02:57:27', '2021-03-04 03:07:47'),
(529, 'Z16Nde4k2BGsT4X4n88RLrtmw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 311. Power to summon material witness or examine person present. Power has to be exercised judiciously for strong and valid reasons with caution to meet the ends of justice. Supreme Court. 4 March 2021', '<h4>V.N. Patil vs K.Niranjan Kumar and others. </h4><h4>Criminal Appeal 267 of 2021 decided on 4 March 2021. </h4><h4>Justice Indu Malhotra and Justice Ajay Rastogi. </h4><h4>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2018/36098/36098_2018_39_1502_26760_Judgement_04-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/36098/36098_2018_39_1502_26760_Judgement_04-Mar-2021.pdf</a>&nbsp;</h4><h4>Relevant paragraphs: 14. The scope of Section 311 CrPC which is relevant for the&nbsp; present purpose is reproduced hereunder:­</h4><h4 style=\"margin-left: 25px;\"><i>“311. Power to summon material witness, or examine&nbsp; person present—Any Court may, at any stage of any&nbsp; inquiry, trial or other proceeding under this Code, summon&nbsp; any person as a witness, or examine any person in&nbsp; attendance, though not summoned as a witness, or recall&nbsp; and re­examine any person already examined; and the&nbsp; Court shall summon and examine or recall and re­examine&nbsp; any such person if his evidence appears to it to be essential&nbsp; to the just decision of the case.”</i></h4><h4>15. The object underlying Section 311 CrPC is that there may not&nbsp; be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the&nbsp; statements of the witnesses examined from either side.&nbsp; The&nbsp; determinative factor is whether it is essential to the just decision of&nbsp; the case.&nbsp; The significant expression that occurs is “at any stage of&nbsp;any inquiry or trial or other proceeding under this Code”.&nbsp; It is,&nbsp; however, to be borne in mind that the discretionary power conferred under Section 311 CrPC has to be exercised judiciously, as it is&nbsp; always said “wider the power, greater is the necessity of caution&nbsp; while exercise of judicious discretion.”<br></h4><h4>16. The principles related to the exercise of the power under&nbsp; Section 311 CrPC have been well settled by this Court in Vijay&nbsp;Kumar Vs. State of Uttar Pradesh and Another 2011(8) SCC&nbsp; 136.]</h4><h4 style=\"margin-left: 25px;\"><i>11. It is well settled that the power conferred under Section&nbsp; 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and&nbsp; valid reasons and it should be exercised with great caution&nbsp; and circumspection. The court has vide power under this&nbsp; section to even recall witnesses for re­examination or&nbsp; further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration&nbsp; the facts and circumstances of each case. The power under&nbsp; this provision shall not be exercised if the court is of the&nbsp; view that the application has been filed as an abuse of the&nbsp; process of law.”</i></h4><h4>18. The aim of every Court is to discover the truth.&nbsp; Section 311&nbsp; CrPC is one of many such provisions which strengthen the arms of&nbsp; a court in its effort to unearth the truth by procedure sanctioned by law.&nbsp; At the same time, the discretionary power vested under&nbsp; Section 311 CrPC has to be exercised judiciously for strong and&nbsp; valid reasons and with caution and circumspection to meet the&nbsp; ends of justice.<br></h4><h4 style=\"margin-left: 25px;\"><i>“17. Though Section 311 confers vast discretion upon the&nbsp; court and is expressed in the widest possible terms, the&nbsp; discretionary power under the said section can be invoked&nbsp; only for the ends of justice. Discretionary power should be&nbsp; exercised consistently with the provisions of the Code and&nbsp; the principles of criminal law. The discretionary power&nbsp; conferred under Section 311 has to be exercised judicially&nbsp; for reasons stated by the court and not arbitrarily or&nbsp; capriciously. Before directing the learned Special Judge to&nbsp; examine Smt Ruchi Saxena as a court witness, the High&nbsp; Court did not examine the reasons assigned by the learned&nbsp; Special Judge as to why it was not necessary to examine&nbsp; her as a court witness and has given the impugned&nbsp; direction without assigning any reason.”</i></h4><h4>17. This principle has been further reiterated in Mannan Shaikh&nbsp; and Others Vs. State of West Bengal and Another 2014(13) SCC 9 59 and thereafter in Ratanlal Vs. Prahlad Jat and Others 2017(9) SCC 340 and Swapan Kumar Chatterjee Vs. Central&nbsp; Bureau of Investigation 2019(14) SCC 328.&nbsp; The relevant paras of&nbsp; Swapan Kumar Chatterjee(supra) are as under:­</h4><h4 style=\"margin-left: 25px;\"><i>“10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and&nbsp; enables it at any stage of inquiry, trial or other proceedings&nbsp; under the Code to act in one of the three ways, namely, (i)&nbsp; to summon any person as a witness; or (ii) to examine any&nbsp; person in attendance, though not summoned as a witness;&nbsp; or (iii) to recall and re­examine any person already&nbsp; examined. The second part, which is mandatory, imposes&nbsp; an obligation on the court (i) to summon and examine or (ii)&nbsp; to recall and re­examine any such person if his evidence&nbsp; appears to be essential to the just decision of the case.<br></i></h4><h4><br></h4>', '6fccfcb4669ea037cf6b40ae855b2e29.PNG', '434b30ed6ca31d96f1e64c452f78cdb5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-04', 1, '', '', '2021-03-05 00:33:07', '2021-03-05 00:57:47'),
(530, 'SjsDPpNriOOHweo5D0m19VCev', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Proportionality in punishment. Anyone can make mistakes. The consequences of mistakes should not be unduly harsh. Supreme Court. 4 March 2021. ', '<h4>Union of India vs P. Balasubrahmanayam. </h4><h4>Civil Appeal 3592-3593 of 2020 decided on 4 March 2021. </h4><h4>Justice Sanjay Kishan Kaul and Justice Hrishikesh Roy. </h4><h4>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2020/6972/6972_2020_39_1501_26760_Judgement_04-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/6972/6972_2020_39_1501_26760_Judgement_04-Mar-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs:</span>&nbsp; 19. It is correct to say that judicial forums do not sit as an appellate authority to substitute their mind with the mind of the disciplinary authority insofar as the finding is concerned. However, disproportionality of punishment is a concept certainly not unknown to service jurisprudence and has received consideration inter alia of this Court. This is what the Tribunal proposed to do. We may examine the finding of the Tribunal on the issue of disproportionality of punishment and are in complete agreement with the view that the punishment of compulsory retirement was completely disproportionate and harsh, keeping in mind the finding arrived at by the disciplinary authority. It, thus, seems to appear that the charges originally levelled may have persuaded the concerned authority to impose punishment; losing site of the fact that the allegations qua bribery had not been found against the respondent.</h4><h4>20. The question is whether the Tribunal proceeded correctly in passing the final direction to impose appropriate minor penalty. The Tribunal itself did not impose the punishment but left it to the authority concerned (for appropriate course of action). It was of the view that considering the findings of procedural lapses against the respondent, the appropriate punishment could only be a minor penalty and not a major penalty. With this again, we are in agreement with the course of action adopted. The nature of charges found against the respondent can hardly be one to call for a major penalty, keeping in mind that there was no bribery charge. Anyone can make mistakes. The consequences of mistakes should not be unduly harsh. We are, thus, of the view that the direction of the Tribunal is what is liable to be sustained.<br><br></h4>', '5630a83efea94c59b6506d45e4391532.PNG', 'bc4b89f7080cdd70cd968c4a186e4b0d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-04', 1, '', '', '2021-03-05 00:55:44', '2021-03-05 00:55:44'),
(531, 'xv7st7VJgnNTQ5OT92w8pIFno', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration. Individual party to arbitration agreement a national of or habitually resident in any country other than India - Arbitration becomes an international commercial arbitration though business is done in India. Supreme Court. 4 March 2021', '<h4>Amway India Enterprises Pvt Ltd vs Ravindranath Rao Sindhia and another. </h4><h4>Civil Appeal 810 of 2021 decided on 4 March 2021. </h4><h4>Justice Rohinton Fali Nariman and Justice B.R. Gavai. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/28021/28021_2020_33_1501_26754_Judgement_04-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/28021/28021_2020_33_1501_26754_Judgement_04-Mar-2021.pdf</a><br>Relevant paragraphs:  2. This appeal arises out of a petition filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 by the respondents in the Delhi High Court for appointment of a sole arbitrator.</h4><h4>16. In this view of the matter, the argument that there is no international flavour to the transaction between the parties has no legs to stand on. Indeed, an analysis of Section 2(1)(f) would show that whatever be the transaction between the parties, if it happens to be entered into between persons, at least one of whom is either a foreign national, or habitually resident in, any country other than India; or by a body corporate which is incorporated in any country other than India; or by the Government of a foreign country, the arbitration becomes an international commercial arbitration notwithstanding the fact that the individual, body corporate, or government of a foreign country referred to in Section 2(1)(f) carry on business in India through a business office in India. This being the case, it is clear that the Delhi High Court had no jurisdiction to appoint an arbitrator in the facts of this case.<br>3. The main plea taken by the learned counsel appearing on behalf of the appellant, Amway India Enterprises Pvt. Ltd., in the Delhi High Court was that a petition before the High Court is not maintainable as the dispute relates to an international commercial arbitration, being covered by Section 2(1)(f)(i) of the Arbitration Act inasmuch as the respondents are husband and wife who are both nationals of and habitually resident in the United States of America.<br>16. In this view of the matter, the argument that there is no international flavour to the transaction between the parties has no legs to stand on. Indeed, an analysis of Section 2(1)(f) would show that whatever be the transaction between the parties, if it happens to be entered into between persons, at least one of whom is either a foreign national, or habitually resident in, any country other than India; or by a body corporate which is incorporated in any country other than India; or by the Government of a foreign country, the arbitration becomes an international commercial arbitration notwithstanding the fact that the individual, body corporate, or government of a foreign country referred to in Section 2(1)(f) carry on business in India through a business office in India. This being the case, it is clear that the Delhi High Court had no jurisdiction to appoint an arbitrator in the facts of this case. <br>18. The appeal is allowed, and the judgment under appeal is set aside.<br></h4>', '6bd458e08b1304215b28e610a801dac7.PNG', '7b4150e90e80cabe1af18ee4f6456597.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-04', 1, '', '', '2021-03-05 02:03:43', '2021-03-05 02:27:57'),
(532, '1K7b69077GZPPs4qisVVxBvBX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian citizen committing crime outside India can be dealt with as if he committed crime in India. Sanction under Section 188 Cr.P.C. is not a condition precedent. Supreme Court. 2 September 2011', '<h4>Thota Venkateswarlu vs State of Andra Pradesh and another. </h4><h4>Special Leave Petition (Crl) 7640 of 2008 decided on 2 September 2011. </h4><h4>Justice Altamas Kabir, Justice Cyriac Joseph and Justice Surinder Singh Nijjar.</h4><h4>5. ....Section 188 Cr.P.C., .. provides as follows :-</h4><h4 style=\"margin-left: 25px;\"><i>“188. Offence committed outside India –<br>When an offence is committed outside India-<br>(a) by a citizen of India, whether on the high seas or elsewhere; or<br>(b) by a person, not being such citizen, on any ship or aircraft registered in India. he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found:<br>Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.”</i></h4><h4>6. Learned counsel urged that Section 188 Cr.P.C. recognizes that when an offence is committed outside India by a citizen of India, he would have to be dealt with as if such offence had been committed in any place within India at which he may be found. Learned counsel, however, laid stress on the proviso which indicates that no such offence could be inquired into or tried in India except with the previous sanction of the Central Government. Learned counsel submitted that in respect of an offence committed outside India, the same could not be proceeded with without previous sanction of the Central Government and that, accordingly, even if any of the offences was allegedly committed inside India, trial in respect of the same could continue, but the trial in respect of the offences committed outside India could not be continued, without the previous sanction of the Central Government.<br>7. On behalf of the Respondents ... Reliance was placed on the decision of this Court in Ajay Aggarwal vs. Union of India & Ors. [(1993) 3 SCC 609], wherein it had been held that obtaining the previous sanction of the Central Government was not a condition precedent for taking cognizance of offences, since sanction could be obtained before trial begins.<br>8. The question which we have been called upon to consider in this case is whether in respect of a series of offences arising out of the same transaction, some of which were committed within India and some outside India, such offences could be tried together, without the previous sanction of the Central Government, as envisaged in the proviso to Section 188 Cr.P.C.<br>9. From the complaint made by the Respondent No.2 in the present case, it is clear that the cases relating to alleged offences under Section 498-A and 506 I.P.C. had been committed outside India in Botswana, where the Petitioner and the Respondent No.2 were residing. At best it may be said that the alleged offences under Sections 3 and 4 of the Dowry Prohibition Act occurred within the<br>territorial jurisdiction of the Criminal Courts in India and could, therefore, be tried by the Courts in India without having to obtain the previous sanction of the Central Government. However, we are still left with the question as to whether in cases where the offences are alleged to have been committed outside India, any previous sanction is required to be taken by the prosecuting agency, before the trial can commence.<br>10. The language of Section 188 Cr.P.C. is quite clear that when an offence is committed outside India by a citizen of India, he may be dealt with in respect of such offences as if they had been committed in India. The proviso, however, indicates that such offences could be inquired into or tried only after having obtained the previous sanction of the Central Government. As mentioned hereinbefore, in Ajay Aggarwal’s case, it was held that sanction under Section 188 Cr.P.C. is not a condition precedent for taking cognizance of an offence and, if need be, it could be obtained before the trial begins. <br>12. It may also be indicated that the provisions of the Indian Penal Code have been extended to offences committed by any citizen of India in any place within and beyond India by virtue of Section 4 thereof. Accordingly, offences committed in Botswana by an Indian citizen would also be amenable to the provisions of the Indian Penal Code, subject to the limitation imposed under the proviso to Section 188 Cr.P.C.<br>13. Having regard to the above, while we see no reason to interfere with the High Court’s decision to reject the petitioner’s prayer for quashing of the proceedings in Complaint Case No.307 of 2007.</h4><h4><br></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Full Judgement below.</span></h4><h4>IN THE SUPREME COURT OF INDIA</h4><h4>CRIMINAL APPELLATE JURISDICTION</h4><h4>SPECIAL LEAVE PETITION (CRL.) NO.7640 OF 2008</h4><h4>THOTA VENKATESWARLU … PETITIONER</h4><h4> Vs.</h4><h4>STATE OF A.P. TR. PRINCL. SEC. & ANR. … RESPONDENTS</h4><h4>J U D G M E N T</h4><h4>ALTAMAS KABIR, J.</h4><h4>1. This Special Leave Petition is directed against</h4><h4>the judgment and order dated 27th August, 2008,</h4><h4>passed by the High Court of Andhra Pradesh at</h4><h4>Hyderabad in Criminal Petition No.3629 of 2008</h4><h4>dismissing the Petition filed by the Petitioner</h4><h4>under Section 482 Criminal Procedure Code</h4><h4>(‘Cr.P.C.’ for short) for quashing the proceedings</h4><h4>in Complaint Case No.307 of 2007 pending before the</h4><h4>Additional Munsif Magistrate, Addanki. This case</h4><h4>raises certain interesting questions of law and to</h4><h4>appreciate the same, some of the facts are required</h4><h4>to be reproduced.</h4><h4>2. The Petitioner, Thota Venkateswarlu, was</h4><h4>married to the Respondent No.2, Parvathareddy</h4><h4>Suneetha, on 27th November, 2005, as per Hindu</h4><h4>traditions and customs in the Sitharama Police</h4><h4>Kalyana Mandapam, Ongole, Prakasam District, Andhra</h4><h4>Pradesh. At the time of marriage 12 lakhs in</h4><h4>cash, 45 sovereigns of gold and 50,000/- as</h4><h4>Adapaduchu Katnam is alleged to have been given to</h4><h4>the Accused Nos.1 to 4, who are the husband, the</h4><h4>mother-in-law and other relatives of the husband.</h4><h4>According to the Respondent No.2, the Petitioner</h4><h4>left India for Botswana in January 2006 without</h4><h4>taking her along with him. However, in February,</h4><h4>2006, the Respondent No.2 went to Botswana to join</h4><h4>the Petitioner. While in Botswana, the Respondent</h4><h4>No.2 is alleged to have been severely ill-treated</h4><h4>by the Petitioner and apart from the above, various</h4><h4>demands were also made including a demand for</h4><h4>additional dowry of 5 lakhs. On account of such</h4><h4>physical and mental torture not only by the</h4><h4>Petitioner/husband, but also by his immediate</h4><h4>relatives, who continued to demand additional dowry</h4><h4>by way of phone calls from India, the Respondent</h4><h4>No.2 addressed a complaint to the Superintendent of</h4><h4>Police, Ongole, Prakasam District, Andhra Pradesh,</h4><h4>from Botswana and the same was registered as Case</h4><h4>(Crl.) No.25 of 2007 under Sections 498-A and 506</h4><h4>Indian Penal Code (‘I.P.C.’ for short) together</h4><h4>with Sections 3 and 4 of the Dowry Prohibition Act,</h4><h4>1986, by the Station House Officer, Medarametla</h4><h4>Police Station, on the instructions of the</h4><h4>Superintendent of Police, Prakasam District. Upon</h4><h4>investigation into the complaint filed by the</h4><h4>Respondent No.2, the Inspector of Police,</h4><h4>Medarametla, filed a charge-sheet in CC No.307 of</h4><h4>2007 in the Court of the Additional Munsif</h4><h4>Magistrate, Addanki, Prakasam District, under</h4><h4>Sections 498-A and 506 I.P.C. and Sections 3 and 4</h4><h4>of the Dowry Prohibition Act against the Petitioner</h4><h4>and his father, mother and sister, who were named</h4><h4>as Accused Nos.2, 3 and 4. The learned Magistrate</h4><h4>took cognizance of the aforesaid case and by his</h4><h4>order dated 19th February, 2007, ordered issuance of</h4><h4>summons against the accused.</h4><h4>3. The cognizance taken by the learned Magistrate</h4><h4>was questioned by the Petitioner and the other coaccused before the Andhra Pradesh High Court in</h4><h4>Criminal Petition Nos.3629 and 2746 of 2008</h4><h4>respectively and a prayer was made for quashing of</h4><h4>the same under Section 482 of the Code of Criminal</h4><h4>Procedure. The High Court by its order dated 27th</h4><h4>August, 2008, allowed Criminal Petition No.2746 of</h4><h4>2008 filed by the Accused Nos.2 to 4 and quashed</h4><h4>the proceedings against them. However, Criminal</h4><h4>Petition No.3629 of 2008 filed by the Petitioner</h4><h4>herein was dismissed. The present Special Leave</h4><h4>Petition is directed against the said order of the</h4><h4>High Court rejecting the Petitioner’s petition</h4><h4>under Section 482 Cr.P.C. and declining to quash</h4><h4>Complaint Case No.307 of 2007 initiated against</h4><h4>him.</h4><h4>4. The submissions made by the learned counsel for</h4><h4>the Petitioner before this Court have raised</h4><h4>certain important questions which warrant the</h4><h4>attention of this Court.</h4><h4>5. It has been submitted on behalf of the</h4><h4>Petitioner that as will appear from the complaint</h4><h4>made by the Respondent No.2 to the Superintendent</h4><h4>of Police, Ongole, Prakasam District, Andhra</h4><h4>Pradesh on 22nd March, 2007, no grounds had been</h4><h4>made out therein to continue with the proceedings</h4><h4>in India, having regard to the provisions of</h4><h4>Section 188 Cr.P.C., which provides as follows :-</h4><h4>“188. Offence committed outside India –</h4><h4>When an offence is committed outside</h4><h4>India-</h4><h4>(a) by a citizen of India, whether on the</h4><h4>high seas or elsewhere; or</h4><h4>(b) by a person, not being such citizen,</h4><h4>on any ship or aircraft registered in</h4><h4>India.</h4><h4>he may be dealt with in respect of such</h4><h4>offence as if it had been committed at any</h4><h4>place within India at which he may be</h4><h4>found:</h4><h4>Provided that, notwithstanding</h4><h4>anything in any of the preceding sections</h4><h4>of this Chapter, no such offence shall be</h4><h4>inquired into or tried in India except</h4><h4>with the previous sanction of the Central</h4><h4>Government.”</h4><h4>6. Learned counsel urged that Section 188 Cr.P.C.</h4><h4>recognizes that when an offence is committed</h4><h4>outside India by a citizen of India, he would have</h4><h4>to be dealt with as if such offence had been</h4><h4>committed in any place within India at which he may</h4><h4>be found. Learned counsel, however, laid stress on</h4><h4>the proviso which indicates that no such offence</h4><h4>could be inquired into or tried in India except</h4><h4>with the previous sanction of the Central</h4><h4>Government [Emphasis Supplied]. Learned counsel</h4><h4>submitted that in respect of an offence committed</h4><h4>outside India, the same could not be proceeded with</h4><h4>without previous sanction of the Central Government</h4><h4>and that, accordingly, even if any of the offences</h4><h4>was allegedly committed inside India, trial in</h4><h4>respect of the same could continue, but the trial</h4><h4>in respect of the offences committed outside India</h4><h4>could not be continued, without the previous</h4><h4>sanction of the Central Government.</h4><h4>7. On behalf of the Respondents it was urged that</h4><h4>a part of the alleged offences relating to the</h4><h4>Dowry Prohibition Act did appear to have arisen in</h4><h4>India, even at the initial stage when various</h4><h4>articles, including large sums of cash and</h4><h4>jewellery were given in dowry by the father of the</h4><h4>Respondent No.2. It was submitted that since a</h4><h4>part of the cause of action had arisen in India on</h4><h4>account of alleged offences under Sections 3 and 4</h4><h4>of the Dowry Prohibition Act, 1968, the learned</h4><h4>Magistrate trying the said complaint could also try</h4><h4>the other offences alleged to have been committed</h4><h4>outside India along with the said offences.</h4><h4>Reliance was placed on the decision of this Court</h4><h4>in Ajay Aggarwal vs. Union of India & Ors. [(1993)</h4><h4>3 SCC 609], wherein it had been held that obtaining</h4><h4>the previous sanction of the Central Government was</h4><h4>not a condition precedent for taking cognizance of</h4><h4>offences, since sanction could be obtained before</h4><h4>trial begins.</h4><h4>8. The question which we have been called upon to</h4><h4>consider in this case is whether in respect of a</h4><h4>series of offences arising out of the same</h4><h4>transaction, some of which were committed within</h4><h4>India and some outside India, such offences could</h4><h4>be tried together, without the previous sanction of</h4><h4>the Central Government, as envisaged in the proviso</h4><h4>to Section 188 Cr.P.C.</h4><h4>9. From the complaint made by the Respondent No.2</h4><h4>in the present case, it is clear that the cases</h4><h4>relating to alleged offences under Section 498-A</h4><h4>and 506 I.P.C. had been committed outside India in</h4><h4>Botswana, where the Petitioner and the Respondent</h4><h4>No.2 were residing. At best it may be said that</h4><h4>the alleged offences under Sections 3 and 4 of the</h4><h4>Dowry Prohibition Act occurred within the</h4><h4>territorial jurisdiction of the Criminal Courts in</h4><h4>India and could, therefore, be tried by the Courts</h4><h4>in India without having to obtain the previous</h4><h4>sanction of the Central Government. However, we</h4><h4>are still left with the question as to whether in</h4><h4>cases where the offences are alleged to have been</h4><h4>committed outside India, any previous sanction is</h4><h4>required to be taken by the prosecuting agency,</h4><h4>before the trial can commence.</h4><h4>10. The language of Section 188 Cr.P.C. is quite</h4><h4>clear that when an offence is committed outside</h4><h4>India by a citizen of India, he may be dealt with</h4><h4>in respect of such offences as if they had been</h4><h4>committed in India. The proviso, however,</h4><h4>indicates that such offences could be inquired into</h4><h4>or tried only after having obtained the previous</h4><h4>sanction of the Central Government. As mentioned</h4><h4>hereinbefore, in Ajay Aggarwal’s case (supra), it</h4><h4><span style=\"font-size: 1.3125rem;\">was held that sanction under Section 188 Cr.P.C. is</span><br></h4><h4>not a condition precedent for taking cognizance of</h4><h4>an offence and, if need be, it could be obtained</h4><h4>before the trial begins. Even in his concurring</h4><h4>judgment, R.M. Sahai, J., observed as follows :-</h4><h4>“29. Language of the section is plain and</h4><h4>simple. It operates where an offence is</h4><h4>committed by a citizen of India outside the</h4><h4>country. Requirements are, therefore, one —</h4><h4>commission of an offence; second — by an Indian</h4><h4>citizen; and third — that it should have been</h4><h4>committed outside the country.”</h4><h4>Although the decision in Ajay Aggarwal’s case</h4><h4>(supra) was rendered in the background of a</h4><h4>conspiracy alleged to have been hatched by the</h4><h4>accused, the ratio of the decision is confined to</h4><h4>what has been observed hereinabove in the</h4><h4>interpretation of Section 188 Cr.P.C. The proviso</h4><h4>to Section 188, which has been extracted</h4><h4>hereinbefore, is a fetter on the powers of the</h4><h4>investigating authority to inquire into or try any</h4><h4>offence mentioned in the earlier part of the</h4><h4>Section, except with the previous sanction of the</h4><h4>Central Government. The fetters, however, are</h4><h4>imposed only when the stage of trial is reached,</h4><h4>which clearly indicates that no sanction in terms</h4><h4>of Section 188 is required till commencement of the</h4><h4>trial. It is only after the decision to try the</h4><h4>offender in India was felt necessary that the</h4><h4>previous sanction of the Central Government would</h4><h4>be required before the trial could commence.</h4><h4>11. Accordingly, upto the stage of taking</h4><h4>cognizance, no previous sanction would be required</h4><h4>from the Central Government in terms of the proviso</h4><h4>to Section 188 Cr.P.C. However, the trial cannot</h4><h4>proceed beyond the cognizance stage without the</h4><h4>previous sanction of the Central Government. The</h4><h4>Magistrate is, therefore, free to proceed against</h4><h4>the accused in respect of offences having been</h4><h4>committed in India and to complete the trial and</h4><h4><span style=\"font-size: 1.3125rem;\">pass judgment therein, without being inhibited by</span><br></h4><h4>the other alleged offences for which sanction would</h4><h4>be required.</h4><h4>12. It may also be indicated that the provisions</h4><h4>of the Indian Penal Code have been extended to</h4><h4>offences committed by any citizen of India in any</h4><h4>place within and beyond India by virtue of Section</h4><h4>4 thereof. Accordingly, offences committed in</h4><h4>Botswana by an Indian citizen would also be</h4><h4>amenable to the provisions of the Indian Penal</h4><h4>Code, subject to the limitation imposed under the</h4><h4>proviso to Section 188 Cr.P.C.</h4><h4>13. Having regard to the above, while we see no</h4><h4>reason to interfere with the High Court’s decision</h4><h4>to reject the petitioner’s prayer for quashing of</h4><h4>the proceedings in Complaint Case No.307 of 2007,</h4><h4>we also make it clear that the learned Magistrate</h4><h4>may proceed with the trial relating to the offences</h4><h4>alleged to have been committed in India. However,</h4><h4>in respect of offences alleged to have been</h4><h4>committed outside India, the learned Magistrate</h4><h4>shall not proceed with the trial without the</h4><h4>sanction of the Central Government as envisaged in</h4><h4>the proviso to Section 188 Cr.P.C.</h4><h4>14. The Special Leave Petition is disposed of</h4><h4>accordingly.</h4><h4>………………………………………………………J.</h4><h4>(ALTAMAS KABIR)</h4><h4>………………………………………………………J.</h4><h4>(CYRIAC JOSEPH)</h4><h4>………………………………………………………J.</h4><h4>(SURINDER SINGH NIJJAR)</h4><h4>New Delhi,</h4><h4>Dated: 02.09.2011.</h4><h4>14</h4><h4><br></h4>', '14233c26ef5eebdd602213dbf7a5add3.png', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2011-09-02', 1, '', '', '2021-03-05 02:55:08', '2021-03-05 03:06:52');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(533, 'XBmPYbxY3ZxUdnenjKrk8pKqV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Additional evidence in appeal can be taken in exceptional cases. Application can be considered only at the time of final hearing of the appeal. Case law discussed. Supreme Court. 17 July 2012', '<h4>Union of India v. Ibrahim Uddin. </h4><h4>Civil Appeal 1374 of 2008 decided on 17 July 2012. </h4><h4>Justice Dr. B.S.Chauhan and Justice Dipak Misra.</h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/jonew/judis/39412.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/39412.pdf</a><br>Reported in (2012) 8 SCC 148</h4><h4>Relevant paragraphs: <br>36. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide K. Venkataramiah v. A. Seetharama Reddy [AIR 1963 SC 1526] , Municipal Corpn. of Greater Bombay v. Lala Pancham [AIR 1965 SC 1008] , Soonda Ram v. Rameshwarlal [(1975) 3 SCC 698 : AIR 1975 SC 479] and Syed Abdul Khader v. Rami Reddy [(1979) 2 SCC 601 : AIR 1979 SC 553] .)<br>37. The appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co. [(1978) 2 SCC 493 : AIR 1978 SC 798] )<br>38. Under Order 41 Rule 27 CPC, the appellate court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. (Vide Lala Pancham [AIR 1965 SC 1008] .)<br>39. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. Hence, in the absence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide State of U.P. v. Manbodhan Lal Srivastava [AIR 1957 SC 912] and S. Rajagopal v. C.M. Armugam [AIR 1969 SC 101] .)<br>40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a “substantial cause” within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.<br>41. The words “for any other substantial cause” must be read with the word “requires” in the beginning of the sentence, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this Rule will apply e.g. when evidence has been taken by the lower court so imperfectly that the appellate court cannot pass a satisfactory judgment.<br>42. Whenever the appellate court admits additional evidence it should record its reasons for doing so (sub-rule (2)). It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the court of further appeal to see, if the discretion under this Rule has been properly exercised by the court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the Rule.<br>43. The reasons need not be recorded in a separate order provided they are embodied in the judgment of the appellate court. A mere reference to the peculiar circumstances of the case, or mere statement that the evidence is necessary to pronounce judgment, or that the additional evidence is required to be admitted in the interests of justice, or that there is no reason to reject the prayer for the admission of the additional evidence, is not enough compliance with the requirement as to recording of reasons.<br>44. It is a settled legal proposition that not only administrative order, but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice delivery system, to make it known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice. The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable, particularly when the order is subject to further challenge before a higher forum. Recording of reasons is the principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision-making. The person who is adversely affected must know why his application has been rejected. (Vide State of Orissa v. Dhaniram Luhar [(2004) 5 SCC 568 : (2008) 2 SCC (Cri) 49 : AIR 2004 SC 1794] , State of Uttaranchal v. Sunil Kumar Singh Negi [(2008) 11 SCC 205 : (2008) 2 SCC (L&S) 1093] , Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity [(2010) 3 SCC 732 : AIR 2010 SC 1285] and Sant Lal Gupta v. Modern Coop. Group Housing Society Ltd. [(2010) 13 SCC 336 : (2010) 4 SCC (Civ) 904] )<br>45. In City Improvement Trust Board v. H. Narayanaiah [(1976) 4 SCC 9 : AIR 1976 SC 2403] , while dealing with the issue, a three-Judge Bench of this Court held as under: (SCC p. 20, para 28)</h4><h4 style=\"margin-left: 25px;\"><i>“28. … We are of the opinion that the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it, an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading other evidence.”</i></h4><h4>A similar view has been reiterated by this Court in Basayya I. Mathad v. Rudrayya S. Mathad [(2008) 3 SCC 120] .<br>46. A Constitution Bench of this Court in K. Venkataramiah [AIR 1963 SC 1526] , while dealing with the same issue held: (AIR p. 1529, para 13)</h4><h4 style=\"margin-left: 25px;\"><i>“13. It is very much to be desired that the courts of appeal should not overlook the provisions of clause (2) of the Rule and should record their reasons for admitting additional evidence. … The omission to record the reason must therefore be treated as a serious defect. Even so, we are unable to persuade ourselves that this provision is mandatory.”</i></h4><h4>In the said case, the Court after examining the record of the case came to the conclusion that the appeal was heard for a long time and the application for taking additional evidence on record was filed during the final hearing of the appeal. In such a fact situation, the order allowing such application did not vitiate for want of reasons.<br>47. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed.<br>48. To sum up on the issue, it may be held that an application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite conditions incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage.<br>Stage of consideration<br>49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court. (Vide Arjan Singh v. Kartar Singh [AIR 1951 SC 193] and Natha Singh v. Financial Commr., Taxation [(1976) 3 SCC 28 : AIR 1976 SC 1053] .)<br>50. In Parsotim Thakur v. Lal Mohar Thakur [(1931) 34 LW 76 : AIR 1931 PC 143] it was held: (LW pp. 86-87)</h4><h4 style=\"margin-left: 25px;\"><i>“… The provisions of Section 107, Civil Procedure Code, as elucidated by Order 41 Rule 27, are clearly not intended to allow a litigant who has been unsuccessful in the lower court to patch up the weak parts of his case and fill up omissions in the court of appeal.<br>… Under Rule 27, clause (1)(b), it is only where the appellate court ‘requires’ it (i.e. finds it needful)…. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but ‘when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent’.<br>… It may well be that the defect may be pointed out by a party, or that a party may move the court to supply the defect, but the requirement must be the requirement of the court upon its appreciation of evidence as it stands. Wherever the court adopts this procedure it is bound by Rule 27(2) to record its reasons for so doing and under Rule 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified. … the power so conferred upon the court by the Code ought to be very sparingly exercised, and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on a main issue in the case.”</i></h4><h4>(See also Indrajit Pratap Sahi v. Amar Singh [(1922-23) 50 IA 183 : AIR 1923 PC 128] .)<br>51. In Arjan Singh v. Kartar Singh [AIR 1951 SC 193] this Court held: (AIR pp. 195-96, paras 7-8)</h4><h4 style=\"margin-left: 25px;\"><i>“7. … If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non-existent. …<br>8. … The order allowing the appellant to call the additional evidence is dated 17-8-1942. The appeal was heard on 24-4-1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the court required to be filled up for pronouncing its judgment.”</i></h4><h4>52. Thus, from the above, it is crystal clear that an application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of the final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored.</h4><p><br></p>', '3bf34ed11c92f46297170cc5216608e1.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2012-12-17', 1, '', '', '2021-03-05 20:15:57', '2021-03-05 20:18:06'),
(534, '5lpeSlaDLLLNaKI4WdtcmDlG8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Order 7 Rule 11. Plaint can NOT be rejected only against one of the defendants. Plaint can be rejected as a whole or not at all. Supreme Court 1 July 2019 ', '<h4><span style=\"font-size: 1.3125rem;\">Madhav Prasad Aggarwal and another vs Axis Bank Limited and another </span><br></h4><h4>Civil Appeal 5126 of 2019 and connected matters decided on 1 July 2019<br><h4>Justice A.M. Khanwilkar and Justice Ajay Rastogi.<br>Judgment Link:  <a href=\"https://main.sci.gov.in/supremecourt/2018/43149/43149_2018_9_1505_14652_Judgement_01-Jul-2019.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/43149/43149_2018_9_1505_14652_Judgement_01-Jul-2019.pdf</a><br></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs: </span>10. We do not deem it necessary to elaborate on all other arguments as we are inclined to accept the objection of the appellant(s) that <b style=\"background-color: rgb(255, 255, 0);\">the relief of rejection of plaint in exercise of powers under Order 7 Rule 11(d) CPC cannot be pursued only in respect of one of the defendant(s). In other words, the plaint has to be rejected as a whole or not at all, in exercise of power under Order 7 Rule 11(d) CPC. </b>Indeed, the learned Single Judge rejected this objection raised by the appellant(s) by relying on the decision of the Division Bench of the same High Court. However, we find that the decision of this Court in Sejal Glass Ltd.9 is directly on the point. In that case, an application was filed by the defendant(s) under Order 7 Rule 11(d) CPC stating that the plaint disclosed no cause of action. The civil court held that the plaint is to be bifurcated as it  did not disclose any cause of action against the Director’s Defendant(s) 2 to 4 therein. On that basis, the High Court had opined that the suit can continue against Defendant 1 company alone. The question considered by this Court was whether such a course is open to the civil court in exercise of powers under Order 7 Rule 11(d) CPC. The Court answered the said question in the negative by adverting to several decisions on the point which had consistently held that the plaint can either be rejected as a whole or not at all. The Court held that it is not permissible to reject plaint qua any particular portion of a plaint including against some of the defendant(s) and continue the same against the others. In no uncertain terms the Court has held that if the plaint survives against certain defendant(s) and/or properties, Order 7 Rule 11(d) CPC will have no application at all, and the suit as a whole must then proceed to trial.<br>11. In view of this settled legal position we may now turn to the nature of reliefs claimed by Respondent 1 in the notice of motion considered by the Single Judge in the first instance and then the Division Bench of the High Court of Bombay. The principal or singular substantive relief is to reject the plaint only qua the applicant, Respondent 1 herein. No more and no less.<br></h4></h4><h4><br></h4><h4><br></h4>', '07ba98a39e6eb7f9f52d3b764fbbbac0.PNG', '748b9b7d31ba959b42e478386d77a830.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2019-07-01', 1, '', '', '2021-03-05 23:36:14', '2022-07-21 23:38:39'),
(535, 'ZcTQJS8L8Fcvuv9HQkcVB0whp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A mere trespasser can NOT claim injunction against the owner nor can the court issue the same. Supreme Court. 22 July 1994 and 9 February 1996', '<h4><b style=\"background-color: rgb(255, 255, 0);\">Please note:&nbsp;</b>This is different from a trespasser who is in \"settled possession\" seeking injunction against the owner who allowed the trespasser to remain in possession even after permissive possession is over or otherwise in settled possession.&nbsp;&nbsp;</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">Premji Ratansey Shah v. Union of India&nbsp;</b><br>(1994) 5 SCC 547<br>Special Leave Petition 10792 of 1994 decided on 22 July 1994<br>Justice K.Ramasway and Justice N. Venkatachala&nbsp;&nbsp;<br>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/jonew/judis/11334.pdf\" target=\"_blank\"></a><a href=\"https://main.sci.gov.in/jonew/judis/11334.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/11334.pdf</a><br>Reported in&nbsp;(1994) 5 SCC 547<br>Relevant paragraph:<br>5. It is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner.<br><b style=\"background-color: rgb(255, 255, 0);\">Tamil Nadu Housing Board v. A. Viswam</b><br>Civl Appeal 3617 of 1996 decided on 9 February 1996<br>Justice K. Ramaswamy and Justice G.B. Pattanaik&nbsp;<br></h4><h4>Judgment Link:&nbsp; https://main.sci.gov.in/jonew/judis/16029.pdf</h4><h4>Reported in (1996) 8 SCC 259.</h4><h4>Relevant paragraph 12. Thus considered, the title of the land in Survey No. 140/4 having been vested in the appellant, to whomsoever it belonged earlier, it stood divested from him/them and no one can lay any claim to the said acquired land once over and&nbsp; claim injunction on that basis. The injunction, therefore, cannot be issued against the true owner, namely, the Housing Board in whom the land ultimately stood vested and then stood transferred to the Municipal Corporation. A trespasser cannot claim injunction against the owner nor can the court issue the same.</h4><p><br></p>', 'ebe2a73353ffb5c3a698b136516f9fe7.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1994-07-22', 1, '', '', '2021-03-06 00:08:54', '2021-03-06 00:22:32'),
(536, 'fAxXlIt6St0vdnw7sPGXEVa3L', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Vertical and horizontal reservation. Reiteration - Principle that candidates from reserved class who compete for non reserved quota on merit will not be counted against reserved quota does not apply for horizontal reservations. Supreme Court. 5 March 2021', '<h4>The State of Tamil Nadu and others vs K. Shobana. </h4><h4>Civil Appeal 3745 - 3754 of 2020 decided on 5 March 2021. </h4><h4>Justice Sanjay Kishan Kaul, Justice Dinesh Maheshwari and Justice Hrishikesh Roy. </h4><h4>Judgment Link: https://main.sci.gov.in/supremecourt/2020/19994/19994_2020_39_1501_26708_Judgement_05-Mar-2021.pdf<br></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs:</span> 1. The perennial problem of working out the reservation system given the scarce employment sources has given rise to the present dispute.<br>18. Learned counsel supported his contention by reference to certain judicial pronouncements. On the principle of how the persons in the merit list, irrespective of their community, would not affect the reservation as they would be adjusted against the general candidates were supported by the judicial pronouncement in Rajesh Kumar Daria vs. Rajasthan Public Service Commission and Ors (2007) 8 SCC 785.<b style=\"background-color: rgb(255, 255, 0);\"> In para 9 of the judgment, the difference between the nature of vertical reservation and horizontal reservation has been highlighted to opine that the candidates belonging to the backward class may compete for non reserved posts for which they are appointed on merit, their number will not be counted against quota reserved for respective backward classes. This is stated to be the consistent view starting from the judgment in Indra Sawhney v. Union of India 1992 Supp (3) SCC 217, R.K. Sabharwal vs. State of Punjab (1995) 2 SCC 745, Union of India vs. Virpal Singh Chauhan  (1995) 6 SCC 684 and Ritesh R Sah Vs. Dr. Y.L. Yamul (1996) 3 SCC 253. This principle does not to apply for horizontal (special) reservations. For example, where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of “Scheduled Caste women”. If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes.</b><br>19. A similar view has been taken in Anil Kumar Gupta & Ors. vs. State of U.P. & Ors. by opining on the basis of the judgment in Indra Sawhney’s case (supra) that the proper and correct course is to first fill up the open quota seats on the basis of merit, and then fill up each of the social reservation quotas. If the quota fixed for horizontal reservations is already satisfied, no further question would arise while dealing with such horizontal reservations.<br>25. We are in complete agreement with the view taken by the courts below as there really could not have been any cavil to the aforesaid. The principle that such of the reservation category candidates who make it on their own merit have to be adjusted against the general category candidates has not been in doubt or argued in view of the catena of judgments cited aforesaid. <br><br><br><br><br><br></h4>', '13f80c03c7ddd35951d9d935b2aac6a2.PNG', '7dfa7b31a0d3fad532b545e5705bc5fc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-05', 1, '', '', '2021-03-06 02:15:37', '2021-03-06 02:17:47'),
(537, 'RIR43NoHNMmCJS0eZhmsMTyQD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Tenancy. Agreement of tenancy can be written or oral. Even in case of oral tenancy the Court has to look into the circumstances intention of the parties their conduct before and after the creation of relationship. Supreme Court. 5 March 2021. ', '<h4>Madan Mohan Singh vs Ved Prakash Arya. </h4><h4>Civil Appeal 814 - 815 of 2021 decided on 5 March 2021. </h4><h4>Justice Ashok Bhushan and Justice R. Subhash Reddy. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/13828/13828_2019_37_1501_26706_Judgement_05-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/13828/13828_2019_37_1501_26706_Judgement_05-Mar-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs: </span>18. This court had laid down in C.M. Beena and another vs. P.N. Ramachandra Rao, 2004 (3) SCC 595, that <b style=\"background-color: rgb(255, 255, 0);\">conduct of the parties before and after the creation of relationship is relevant for finding out their intention.</b><br>19. When there is no evidence of taking premises on rent and it is admitted by DW-2 that he had not maintained any record of accounts of payment of rent, there is no base for holding that relationship of landlord and tenant is proved. The trial court itself has held that defendant had failed to prove any documents pertaining to tenancy. The First Appellate Court, thus, has rightly come to the conclusion that findings of the trial court that the defendant is a tenant is based on the surmises and conjectures.<br>17. The categorical finding recorded by the trial court is that the defendant failed to prove any documents pertaining to the tenancy. The tenancy is a relationship which is created between two parties. <b style=\"background-color: rgb(255, 255, 0);\">The agreement of tenancy can be both by writing or oral. Even if there is oral agreement of tenancy, the Court has to look into the circumstances and intention of the parties and other material to conclude as to whether there was any tenancy or not. </b>The present is not a case where defendant claimed any rent agreement. The defendant has come up with a case that he is paying rent at the rate of Rs.450/- per month. Defendant in his written statement has stated that plaintiff has never issued any rent receipt. Thus, present is not a case where there was any rent receipt filed by the defendant in support of his claim of tenancy.</h4><div><br></div>', 'dd26505a8e98e461ea4bdb17c3c0b44d.png', '2105ef7430bf1dce5a2c044afb6c4338.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-05', 1, '', '', '2021-03-06 02:47:52', '2021-03-06 03:01:24'),
(538, 'HDi8Ar70SeQsU7IKaNDGgKGrt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Order 39 Rule 2A. Dismissal of the main suit does NOT absolve the defendants of their liability for breach of injunction order. Karnataka High Court.', '<h4>Vittal Gurudas Pai by lrs vs M/s. Lepakshi Construction Corporation and others. </h4><h4>Miscellaneous First Appeal 7055 of 2013 decided on 23 February 2021.</h4><h4>Justice K.S. Mudagal</h4><h4> </h4><h4><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\">15.&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1.3125rem;\">Having regard to the rival contentions, the following point arises for consideration:&nbsp;</span><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\">“Whether the order of the Trial Court dismissing the application of the plaintiffs under Order XXXIX Rule 2A of CPC is sustainable in law?”</span></h4><h4><b style=\"background-color: rgb(255, 255, 0);\">Reg. The maintainability of the application under Order XXXIX Rule 2A of CPC on dismissal of the main suit:</b><br></h4><h4>16.It was contended that on dismissal of the main suit, Order XXXIX Rule 2A of CPC application does not survive and not maintainable. To advance that proposition, learned Counsel for the defendants relied on the judgment of the Hon’ble Supreme Court in Kanwar Singh Saini’s case referred to supra. In that case, the plaintiff filed application under Order XXXIX Rule 2A of CPC to prosecute the defendants for disobedience of the decree of permanent injunction after the suit was decreed.<br></h4><h4>17. Under such circumstances, it was held that once the suit is decreed, the party cannot pursue the remedy under Order XXXIX Rule 2A of CPC, but he has to seek the enforcement of the order as per Order XXI Rule 32 of CPC. In this case, under the application under Order XXXIX Rule 2A of CPC, the plaintiffs did not seek the prosecution of the defendants for breach of the decree, but they sought to proceed against them for breach of interim order of temporary injunction. Therefore, the said judgment is not applicable.<br>18.The Hon\'ble Supreme Court in para 11 of the judgment in Samee Khan’s case referred to supra held that, even if the injunction order is subsequently set aside, the disobedience does not get erased. It was further held that the position with regard to Order XXXIX Rule 2A of CPC is different. Therefore, subsequent dismissal of the suit by the trial Court does not absolve the defendants of their liability of breach of injunction order. Moreover, the order of the trial Court dismissing the suit has not attained finality and that is pending before this Court in RFA No.592/2017.<br></h4><h4>19.Learned Counsel for defendant No.3 contended that the trial Court in para 14 of it’s judgment has held that there was no violation of injunction order. No doubt in para 14 of the judgment, the trial Court has stated that the sale of the properties under Exs.P18 to P24 was not in contravention of the order passed by it.<br></h4><h4>20.The trial Court passed its judgment on 02.01.2017. While passing the said judgment, the trial Court was well aware that the correctness of it’s order rejecting the application under Order XXXIX Rule 2A of CPC is being tested in this appeal and matter is sub-judice. While disposing the suit, the trial Court was not called upon to decide whether there was violation of injunction order or not. By making some observations regarding merits of the matter which is pending before the High Court, the learned Presiding Officer of the trial Court has committed judicial impropriety and illegality. Such observations of the trial Court does not bind this Court in disposing of this matter.<br></h4>', '794b16fde872e4105c489ee998f1aa5a.JPG', 'c7cf0c2b7734a0b8c4e6b7d161c83e4c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-02', 1, '', '', '2021-03-06 03:26:54', '2023-02-02 16:42:07'),
(539, '0bjfQ6SDxKya0mCVn0uBcGnUM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Undertaking given by Counsel binds the clients.  It has the same force as an injunction made by the Court and a breach of the undertaking amounts to contempt of court. Karnataka High Court. 23 February 2021', '<h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">Vittal Gurudas Pai by lrs vs M/s. Lepakshi Construction Corporation and others.</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">Miscellaneous First Appeal 7055 of 2013 decided on 23 February 2021.</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/369605/1/MFA7055-13-23-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/369605/1/MFA7055-13-23-02-2021.pdf</a></span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\"><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: Reg. Binding effect of the undertaking of the Counsel for the defendants:</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">25. The suit was filed on 04.06.2007. On 08.06.2007, the Court ordered emergent notice of IA Nos.1 and 2 and suit summons to the defendants. Admittedly, the suit summons and notice of the applications were served on the defendants and they appeared before the Trial Court on 11.07.2007. On 11.07.2007, the Counsel for the defendants filed memo which reads as follows: “The undersigned counsel undertake that the defendants have not alienate the suit schedule property to any third person”</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">26. Then the matter was adjourned to 13.08.2007. On 13.08.2007, the advocate for the defendants filed another memo which reads as follows: “The undersigned counsel undertake that they have not alienate the suit schedule property in the above case.”</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">27.&nbsp; Then the trial Court ordered to list the matter on 17.11.2007. On 17.11.2007, the defendants’ Counsel failed to appear before the Court. The plaintiffs’ Counsel submitted to the Court about the undertaking given by the defendants’ Counsel. Under such circumstances, the trial Court passed the following order:</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">“Parties to the suit called out. Absent. Learned Counsel for the plaintiff is present. Learned Counsel for the defendant is absent. On the last date the learned Counsel for the defendants had undertaken that the defendants will not alienate suit property. Today neither defendants nor learned Counsel for the defendants are present. I.A I &amp; II cannot be heard as the defendants and learned Counsel for defendant Nos.1 to 3 are absent. Hence, it is hereby ordered that defendants 1 to 3 shall not alienate the suit property till next date. For hearing of IA I &amp; II and to call the parties under Section 89 of CPC. Call on 08.12.2007.”&nbsp;</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">28. That order was extended from time to time.</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">29.&nbsp; ....the defendants sold several flats to the purchasers named therein. During the said period, the injunction order granted by the Trial Court was in force. There is no dispute about the said fact.</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">30. However, the maintainability of the application under Order XXXIX Rule 2A of CPC was questioned on other grounds. One amongst them is that the defendants had not instructed their Counsel to give such undertaking. The trial Court holds that the memos of undertaking filed by the advocate for the defendants were not signed by them, therefore, knowledge of undertaking cannot be imputed to them.</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">31.The Larger Bench of the Hon\'ble Supreme Court in Chhaganbhai Norsinbhai’s case referred to supra in para 5 of the judgment referring to Halsbury\'s Laws of England- Fourth Edn. vo1. 9, page 42 (paragraph 71) after citing Dashyoodd v. Dashood held as follows:</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">“An undertaking given to the Court by a person or corporation in pending proceedings, on the faith of which the court sanctions particular course of action or inaction, has the same force as an injunction made by the Court and a breach of the undertaking is misconduct amounting to contempt.”</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">32.&nbsp; Similarly in Noorali Babul Thanewala’s case referred to supra the Hon\'ble Supreme Court held that undertaking given by the party to the Court amounts in substance to an injunction restraining that party from acting in breach thereof.</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">33. In paras 8 and 9 of the judgment in M/s.Jain Exports Pvt. Ltd.’s case referred to supra the Hon\'ble Supreme Court held that undertaking given by the party to the Court is not an obligation imposed by the Court but it is promise voluntarily made to the Court and that binds him/her.</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">34. In Hanamawwa’s case referred to supra the matter was compromised by the advocate without instructions from his client. Therefore, it was held that the advocate making any concession effecting legal right of the client is not binding the client. In the case on hand, no such compromise was entered into or concession against law was made by the undertaking. Therefore, the said judgment was not applicable.</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">35. Since 2007 till date the defendants have not taken any action against their advocate alleging that the advocate gave such undertaking without their instructions or there was any professional misconduct on the part of the said advocate.</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">36. In Jagtar Singh’s case referred to supra where similar allegations were made against the advocate, the Hon\'ble Supreme Court held that Order III Rule 4 of CPC empowers the Counsel to continue on record until the proceedings in the suit are duly terminated, therefore the Counsel has power to make the statement on instructions from the party to withdraw the appeal. In para 4 of the judgment, it was held that if really the Counsel acted hostile to the interest of the party or against his instructions, the necessary remedy of the party is elsewhere and no fault can be found with the Court acting in consonance with the submission of such Counsel on record.</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">37.&nbsp; In view of the discussions made above and the judgments of the Hon\'ble Supreme Court there is no merit in the contention that the undertaking of the Counsel does not amount to injunction order or that undertaking was given without instructions of the defendants. The other judgments relied upon by the learned Counsel for the defendants in that regard are not applicable to the facts of the case.</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">38. Learned Counsel for the defendants submitted that there is no clear undertaking and such undertaking does not amount to temporary injunction order. The reading of the memos show that there were grammatical errors in the memos in saying that the defendants have not alienated the property. Apparently the memos were filed undertaking that the defendants do not alienate the property. Neither such contention was raised before the trial Court nor that was interpreted by the trial Court. Therefore the said contention does not deserve any merit.</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px; background-color: rgb(255, 255, 0);\">Cases referred:</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">(i)<span style=\"white-space:pre\">	</span>M/s.Jain Exports Pvt. Ltd. v. Union of India1</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">(ii)<span style=\"white-space:pre\">	</span>Jagtar Singh vs. Pargat Singh2</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">(iii)<span style=\"white-space:pre\">	</span>S.Gangadhar vs. R.Prakash3</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">(iv)<span style=\"white-space:pre\">	</span>Chhaganbhai<span style=\"white-space:pre\">	</span>Norsinbhai<span style=\"white-space:pre\">	</span>vs.<span style=\"white-space:pre\">	</span>Soni Chandubhai Gordhanbhai and others4</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">(v)<span style=\"white-space:pre\">	</span>Anil Sharma vs. R.C. Virmani and another5</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">(vi)<span style=\"white-space:pre\">	</span>Tayabbhai M. Bagasarwalla and another vs. Hind Rubber Industries Pvt. Ltd..6</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">(vii)<span style=\"white-space:pre\">	</span>Patel Rajnikant Dhulabhai and another vs. Patel Chandrakant Dhulabhai and others7</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">(viii)<span style=\"white-space:pre\">	</span>Samee Khan vs. Bindu Khan8</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">(ix)<span style=\"white-space:pre\">	</span>Hanamawwa vs. B. Alla Baksh9</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">(x)<span style=\"white-space:pre\">	</span>Noorali Babul Thanewala vs. K.M.M.Shetty10</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">1 AIR 1996 SC 2739</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">2 (1996) 11 SCC 586</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">3 ILR 2008 KAR 2392</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">4 (1976) 2 SCC 951</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">5 (1996) Cri.LJ 3137</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">6 (1997) 3 SCC 443</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">7 (2008) AIR (SCW) 5076</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">8 (1998) 7 SCC 59</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">9 2002 (2) Kar.L.J. 164</span></font></h4><h4 style=\"margin-top:0cm\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 16px;\">10 1990 (1) SCC 259</span></font></h4><h4 style=\"margin-top:0cm\"><br></h4><p>\r\n\r\n</p>', 'e04d90b612d7b0d3668563b35de81f32.jpg', '3b9dda7425579b195cd2f3a1bfc81ff6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-23', 1, '', '', '2021-03-06 03:56:38', '2021-03-06 03:58:25');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(540, 'doq2ZJ1cL174XoTShzazVpvY1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Order 39 Rule 2A. Party knowingly violating injunction order cannot contend that the order is null and void or irregular and hence need not be obeyed. Karnataka High Court.', '<h4><b>Vittal Gurudas Pai by lrs vs M/s. Lepakshi Construction Corporation and others.</b></h4><h4><b>Miscellaneous First Appeal 7055 of 2013 decided on 23 February 2021. </b></h4><h4><b>Justice K.S. Mudagal.&nbsp;</b></h4><h4><b><br></b></h4><h4><b>39. Learned Counsel for the defendants claimed that the order of temporary injunction was nullity on the following grounds:</b></h4><h4><b>(i) The order was obtained by suppression of material fact;</b></h4><h4><b>(ii) The order of ex-parte order and notice of the order was not served on the defendants as required under Order XXXIX Rule 3 of CPC;</b></h4><h4><b>(iii) When ex-parte order is granted under Order XXXIX Rules 1 and 2 of CPC, the application for injunction shall be heard and decided within thirty days. But the trial Court went on extending the interim order without disposing of the said application. Therefore, that order was not in accordance with Order XXXIX Rules 1 and 2 of CPC.</b></h4><h4><b>40.The trial Court records show that the notices of the application were served on the defendants and they had appeared in the proceedings through their Counsel. Twice the defendants’ Counsel filed memo undertaking that the defendants will not to alienate the suit schedule property. The defendants’ contention that their Advocate was not authorized to file memo of undertaking or the said undertaking was given without their knowledge is already rejected.</b></h4><h4><b>41. Similarly, the contention that in the memo of undertaking there was no clear undertaking, is unworthy of acceptance. When the defendants’ Advocate appeared in the case and the order was passed in her presence, it cannot be said that the order was ex-parte order. Therefore the said contention or rejection of the application on that ground is wholly unsustainable. Since the order was passed on the undertaking of the learned Counsel for the defendants, there is no merit in the contention that the property was unidentifiable or its description was incorrect.</b></h4><h4><b>42.The Hon\'ble Supreme Court in para 22 of the judgment in Tayabbhai M. Bagasarwalla’s case referring to the earlier judgment in D.M.Samyulla v. Commissioner, Corporation of the City of Bengaluru [1991 KLJ 352] held that a party who knows an order, whether it is null or valid, regular or irregular cannot be permitted to disobey it and it would be dangerous to allow the party to decide as to whether an order was null or valid or whether it was regular or irregular.</b></h4><h4><b>43.In para 23 of the said judgment referring to the judgment in Chuck vs. Cremer it was held that if a party feels that the order is null or irregular and he might be affected by it should apply to the Court for the discharge of the order, but must not disobey that. It was held that if a party disobeys that on such grounds he is liable to be punished for contempt of Court and no application of such person for discharging the order will be entertained until he has purged himself of his contempt.</b></h4><h4><b>44. In para 54 of the judgment in Patel Rajnikant Dhulabhai’s case referred to supra referring to its earlier judgment in the Commissioner, Karnataka Housing Board, V. C.Muddaiah [AIR 2007 SC 3100] it was held that, if a party against whom such order is made has grievance, the only remedy available to him is to challenge the order in appropriate proceedings according to law. It was further held that such order cannot be defied on a spacious plea that no such order/direction could have been issued by the Court and upholding of such argument would seriously affect and impale administration of justice.</b></h4><h4><b>45. In para 59 of the said judgment it was held that punishing a person for contempt of Court though normally should not be resorted to, but it is the duty of the Court to uphold and maintain dignity of Courts and majesty of law which calls for such extreme step.</b></h4><h4><b>46. Similarly, in para 15 of the judgment in Anil Sharma’s case referred to supra it was held as follows:</b></h4><h4><b>“15. It is settled proposition of law that the contempt Court is not supposed to examine the merits of the order. The Contempt Court cannot go behind the order. The opposite parties cannot be permitted to judge the merits themselves of an order quashed by the High Court or they cannot be permitted to defy the Court’s order on the ground that the order is not correct. If this is to be permitted, the entire judicial structure will fall down and every person will defy the orders on the ground that the order is not correct<span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">”</span></b></h4><h4><b>47.In view of the principles laid down in the above judgments there is no merit in the contention that the injunction order was null and void for non-compliance of Order XXXIX Rules 1, 2 and 3A of CPC or that was the outcome of suppression of material fact, therefore need not have been complied.</b></h4>', 'a9549f5e63936545ab2f8cf140154013.JPG', 'ddd6bf4ebb01dd14eca740dd1396984f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-23', 1, '', '', '2021-03-06 04:14:20', '2023-01-23 12:29:00'),
(2588, 'o8bffrC7zKpBcUvVUWBqv4rBn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Supreme Court rejects PIL seeking publication of Chargesheets along with the relevant documents on the public domain and on the websites of the State Governments.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Saurav Das Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition (Civil) 1126 of 2022 decided on 20 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. By way of this petition under Article 32 of the Constitution of India the petitioner has prayed for appropriate directions/orders directing the respondents - States to enable free public access to chargesheets and final reports filed as per Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C’) in furtherance of the rationale as established by this Court in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Youth Bar Association of India v. Union of India, (2016) 9 SCC 473 on their websites.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. At the outset, it is required to be noted that by way of present writ petition under Article 32 of the Constitution of India, the petitioner by way of Public Interest Litigation has prayed for an appropriate direction/order directing all the States in the country to enable free public access to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">chargesheets and final reports filed as per Section 173 of the Cr.P.C. on their websites.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4.1 For the aforesaid heavy reliance is placed on the decision of this Court in the case of Youth Bar Association of India (supra). On going through the decision of this Court in the case of Youth Bar Association of India (supra), the reliance placed upon the same by the counsel appearing on behalf of the petitioner for the relief sought in the present petition is thoroughly misconceived and misplaced. In the aforesaid decision this Court directed that the copies of the FIRs should be published within 24 hours of their registrations on the police websites or on the websites of the State Government. From the entire judgment it appears that this Court directed the copies of the FIRs to be published within 24 hours on the police websites or on the websites of the State Government. Looking to the interest of the accused and so that the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">innocent accused are not harassed and they are able to get the relief from the competent court and they are not taken by surprise. Therefore, the directions issued by this Court are in favour of the accused, which cannot be stretch to the public at large so far as the chargesheets are concerned.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Now so far as the reliance placed upon on Sections 74 & 76 of the Evidence Act is concerned, the reliance placed <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">upon the said provisions are also absolutely misconceived and misplaced. Documents mentioned in Section 74 of the Evidence Act only can be said to be public documents, the certified copies of which are to be given by the concerned police officer having the custody of such a public document. Copy of the chargesheet along with the necessary documents cannot be said to be public documents within the definition of Public Documents as per Section 74 of the Evidence Act. As per Section 75 of the Evidence Act all other documents other than the documents mentioned in Section 74 of the Evidence Act are all private documents. Therefore, the chargesheet/documents along with the chargesheet cannot be said to be public documents under Section 74 of the Evidence Act, reliance placed upon Sections 74 & 76 of the Evidence Act is absolutely misplaced.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Now so far as the reliance placed upon Section 4 of the RTI Act is concerned, under Section 4(2) of the RTI Act a duty is cast upon the public authority to take steps in accordance with the requirements of clause (b) of subSection 1 of Section 4 of the RTI Act to provide as much information suo moto to the public at regular intervals through various means of communications. Copies of the chargesheet and the relevant documents along with the charge-sheet do not fall within Section 4(1)(b) of the RTI Act. Under the circumstances also the reliance placed upon Section 4(1)(2) of the RTI Act is also misconceived and misplaced.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. In view of the above and for the reason stated above, the petitioner is not entitled to the relief as prayed in the present petition namely directing all the States to put on their websites the copies of all the chargesheets/challans filed under Section 173 of the Cr.P.C</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Present writ petition lacks merits and the same deserves to be dismissed and is accordingly dismissed.</b></span></p>', 'ec183886992ab465c737173818b7ec82.jpeg', 'a8bf6b414b9413ba66dad1b7bd1433a0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-24', 1, '', '', '2023-01-23 12:52:44', '2023-01-24 12:08:56'),
(541, 'OyXuhhTm5cQ15kLYUZHlnFwgG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mangalore Air Crash. Airport Authority of India employees are public servants. Prosecution launched against them without sanction liable to be quashed. Karnataka High Court. 26 February 2021', '<h3>Air India Limited and another vs State of Karnataka and another.</h3><h3>Criminal Petition 3696 of 2013 and Criminal Petition 5696 of 2013 decided on 26 February 2021. </h3><h3>Mr. Gurudas K Kannur, Senior Advocate for Mr. Murugesh V Charati Advocate for petitioners in Criminal Petition 3696 of 2013</h3><h3>Mr. Uday Holla, Senior Advocate for Mr. R.V. Naik and Madhukar S for petitioners in Criminal Petition 5696 of 2013  </h3><h3>Mr. K.Nageshwarappa, HCGP and Smt.Harshitha R.M. Advocate for respondents 1 and 2 respectiely. </h3><h3><span style=\"background-color: rgb(255, 255, 0);\">(PDF copy of the Judgment enclosed.)</span></h3>', 'f024c621dec73219871ab721ba665ee0.jpg', 'e8f2307192f52a7a1901d852962832fd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-26', 1, '', '', '2021-03-08 02:49:56', '2021-03-08 03:15:50'),
(542, 'UJPFVTuxHjAqqwlBlw8zo0Eit', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Private Security Agencies Regulation Act 2005. The Act is NOT applicable when security personnel are directly employed by a business entity and not through any agency. Hence no license is necessary under the Act. Karnataka High Court.  18 February 2021', '<h4>M/s. G.C.D. Motors vs The State of Karnataka. </h4><h4>Criminal Petition 10135 of 2018 decided on 18 February 2021.<br></h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/368913/1/CRLP101325-18-18-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/368913/1/CRLP101325-18-18-02-2021.pdf</a></h4><h4>Relevant paragraphs: In these two petitions filed  under  Section  482  of  Cr. P.C., the petitioner is praying for quashing of registration of case in Crime No.8/2018 by ISD Police Station, Bengaluru for offence punishable under Section 20 of the Private Security Agencies (Regulation) Act, 2005.<br>2. ISD Police, Bengaluru have registered the case  in Crime No.8 /2018 against the petitioner-Rohit R Deshpande on the allegation that he is running two showrooms in Belagavi and he had appointed security guards without taking license/permit under the provisions of the Private Security Agencies (Regulation) Act, 2005 . Before registering the said case on 20.1.2018 , the Police Inspector, ISD, Belagavi had issued notice dated 13.10.2017 calling upon the petitioner to submit some particulars in a form. The information sought  under  the said notice dated 13.10 .2017 pertained to name of the Chief Security Officer, his address, phone number and details of  the  uniform, cadre, security staff engaged by  the petitioner and details of the security agency  from  which the said security personnel were drawn by him. He submitted his reply dated 31 . 10.2017 to the Police Inspector, ISD, Belagavi furnishing certain particulars. Apparently, the Police Inspector ISD  Police  Station  was not satisfied with the same and proceeded to register the case against the petitioner for offence punishable under Section 20 of the Act.<br>5. The allegation in the complaint and FIR is  that the petitioner has violated the provisions under Section 20 of the Act and  therefore, he  has  committed the  offence.  </h4><h4>7. Section 4 of the Act reads as follows:</h4><h4 style=\"margin-left: 25px;\"><i>“4. Persons or Private  Security  Agency not to engage or provide private security guard without licence.- No person shall  carry on or commence the business of private security agency, unless he holds a l icense issued under this Act:<br>Provided that the person carrying on the business of private security agency, immediately before the commencement of this Act, may continue to do so for a period of one year from the date of such  commencement  and if  he  has  made  an  application  for  such license within the said period of one year, till the disposal of such application:<br>Provided that no private security agency shall provide private security abroad without obtaining permission of the Controlling Authority, which shall consult the Central Government before according such permission.”</i></h4><h4>8. A plain reading of the above provision unmistakably shows that the requirement of taking license under the Act arises only when a person or agency is running a business of private security agency.<br>...six  persons named  in the complaint are direct employees of the petitioner himself and he was paying salaries to them and they were engaged in the task of maintaining security in the two showrooms owned by him, but they were not  hired from  any private security agency. This also shows that the personnel doing the security work are direct employees of the petitioner himself. It is also evident that the uniforms provided by him are not under the requirement of wearing uniforms as stipulated under the Act and  the  petitioner  has allotted various kinds of uniforms to persons who are discharging various separate duties. In  view  of  the above, the Act itself is not applicable to the present petitioner and therefore, it cannot be said that he has violated Section 20 of the Act and that being the case, no case could have been registered against him. </h4><h4>a) The above petitions are allowed.<br>b) he proceedings initiated against the petitioner in  both  petitions  in  Crime No.8 /2018 by ISD Police Station, Bengaluru is quashed.<br><br></h4>', 'e96fdc4dc23f7bf238519e06717e8a90.jpg', '7739a78bec7b62752984ab755ad1d05d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-18', 1, '', '', '2021-03-08 03:42:22', '2021-03-08 04:04:14'),
(543, 'tz0GB17AdDxrOETKUDvDpndBc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Locus Standi. When a litigation is filed in private interest and not as PIL- fundamental principles pertaining to locus standi have to be complied with by demonstrating violation of petitioners rights and in what manner.  Karnataka High Court. 26 Feb 2021', '<h4>Syndicate Bank vs M/s. Manyatha Residents Association</h4><h4>Writ Appeal 2872 of 2013 and connected matters decided on 26 February 2021</h4><h4>Justice B.V. Nagarathna and Justice N.S.Sanjay Gowda</h4><h4>Judgment Link: <a href=\"https://karnatakajudiciary.kar.nic.in/judgements/WA2872_2013_05032021.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/WA2872_2013_05032021.pdf</a><br><h4>Relevant paragraphs: <br>42. In view of the above stated position in the instant cases, the question is, whether, the respondent/writ petitioners had the locus standi to assail the allotment of the civic amenity sites in question to the respective allottees by filing the writ petitions under Article 226 of the Constitution of India.<br>43. In the context of filing a writ petition under Article 226 of the Constitution, it is well settled by several decisions of the Hon\'ble Supreme Court that only persons aggrieved can file writ petition in their personal / private capacity. In other words, there must exist some legal or constitutional right which has been violated or infringed and in such a case, a person can file a writ petition.<br>44. The term \"locus standi\" or \"standing to sue\" denotes the existence of a right of an individual or group of individuals to have a Court enter upon adjudication on an issue brought before that Court by proceedings instituted by the individual or the group of persons. The question of locus standi assumes importance when petitions are filed by incompetent persons. Ordinarily, a writ petition can be filed by a person aggrieved and not by a stranger except in  public interest litigation and in the case of a writ of quowarranto.<br>45. Article 226 of the Constitution does not lay down as to who are the persons entitled to invoke the jurisdiction of the High Court under that Article. The question of locus standi has been decided from time to time in a large number of cases. Generally, individual person or a group of persons aggrieved by any action or inaction on the part of the State or its Authorities can institute a writ petition under Article 226 of the Constitution on the premise that, there is an infringement of their right or they have been prejudicially affected by any order. Thus, the right which is the foundation for exercising the jurisdiction under Article 226 of the Constitution is the personal or individual right of the petitioner himself, though in the case of writs like, habeas corpus or quo-warranto, this rule stands modified.<br>46. But, in the case of issuance of a writ of mandamus, so as to compel the Authorities to do something, it must be shown that the statute imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. But, where no right of the petitioner is affected, such a person has no locus standi to file the writ petition. Thus, no person can ask for a mandamus without a legal right. There must be a judicially protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or abstain from doing something. Existence of the right is implicit for the exercise of the extraordinary jurisdiction by the High Court under Article 226. For instance, a rival in a trade has no locus standi to challenge the grant of licence to other trader on the ground that the licence was granted illegally or suffers from defect of jurisdiction, vide J.M.Desai vs. Roshan Kumar, [AIR 1976 SC 578], (J.M.Desai); Nagpur Rice and Flour Mills vs. Teekappa Gowda and Brothers, [AIR 1971 SC 246] (Nagpur Rice and Flour Mills). In J.M.Desai, provisions of Bombay Cinemas Registration Act, 1953 and the Bombay Cinema Rules, 1954 came up for consideration and paragraphs 36 to 41 of the said judgment read as under: </h4><h4 style=\"margin-left: 25px;\"><i>“36. It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) ‘person aggrieved’; (ii) ’stranger’; (iii) busybody of meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. They indulge in the past-time of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busy bodies at the threshold.<br>37. The distinction between the first and second categories of applicants, though real, is not always well-demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of ‘persons aggrieved’. In the grey outercircle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outer-zone may not be “persons aggrieved”.<br>38. To distinguish such applicants from ‘strangers’, among them, some board tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are: Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong or injury, in the sense, that his interest, recognized by law, has been prejudicially and directly affected by the act or omission of the authority, complained of? Is he a person who has suffered a legal grievance, a person “against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him  something or wrongfully affected his title to something? Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority? Is the statute, in the context of which the scope of the words “person aggrieved” is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the community? Or is it a statute dealing with private rights of particular individuals?<br>39. Now let us apply these tests to the case in hand. The Act and the Rules to which we are concerned, are not designed to set norms of moral or professional conduct for the community at large or even a section thereof. They only regulate the exercise of private rights of an individual to carry on a particular business on his property. In this context, “person aggrieved” must receive a strict construction.<br>40. Did the appellant have a legal right under the statutory provisions or under the general law which has been subjected to or threatened with injury? The answer in the circumstances of the case must necessarily be in the negative.<br>41. The Act and the Rules do not confer any substantive justiciable right on a rival in cinema trade, apart from the option, in common with the rest of the public, to lodge an objection in response to the notice published under Rule 4. The appellants did<br>not avail of this option. He did not lodge any objection in response to the notice, the due publication of which was not denied. No explanation has been given as to why he did not prefer any objection to the grant of the No-Objection-Certificate before the District<br>Magistrate or the Government. Even if he had objected before the District Magistrate, and failed, the Act would not give him a right of appeal. Section 8A of the Act confers a right of appeal to the State Government, only on any person aggrieved by an order of a licensing authority refusing to grant a license, or revoking or suspending any license under Section 8. Obviously, the appellant was not a “person aggrieved” within the contemplation of Section 8A.”</i><br></h4><h4><span style=\"font-size: 1.3125rem;\">Thus, a person who is not aggrieved by any </span>discrimination complained of, cannot maintain a writ petition. [D.Nagaraja vs. State of Karnataka, AIR 1977 SC 876] (D.Nagaraja).</h4><h4>47. It is further observed that in India, there are four categories of persons for locus standi: first category is individual standing; second category is statutory standing or in other words, when statute has provided standing to a person or a class of persons and on the strength of the standing conferred by the statute, one may move the Court; third category is public interest litigation; fourth category of locus standi is representative action or class action.<br>48. The principle of standing or locus standi in all public interest litigation if applied to individual standing, it would result in destroying the time-tested concept of \"standing\" which has authority in India from the AngloSaxon Jurisprudence as well as American Law Jurisprudence. This means that, the requirement of injury is a test to be applied for having locus standi to file a petition under Article 226 of Constitution unless it is a  public interest litigation. Thus, there is a need to regulate in the context of individual standing and a careful consideration of the case must be made in order to examine and appreciate as to whether the person is aggrieved. Such an examination is required in order to avoid frivolous litigation being flooded to the High Court, thereby driving away genuine litigations.<br>49. However, over a period of time, there may have been a lowering of the barrier imposed by the standing requirement or taking a liberal approach in the matter. But, it is necessary to follow certain principles having regard to the law. Thus, the doors of the court could be made open at the instance of the persons or authorities under certain categories and every other person cannot move a writ petition challenging actions of the State Government or its authorities when not individually or personally aggrieved, unless it is in the nature of public interest litigation. Otherwise, the doctrine of locus standi or a standing requirement would be rendered meaningless and thereby introduce a procedure which is not judicially recognised. <br>50. However, the above must be contrasted to public interest litigation. In case of a public interest litigation, the person or an authority concerned who move such a petition is not enforcing his/its personal or legal right. Such a litigation is filed by public spirited persons to espouse the cause of large number of people who are suffering under some legal wrong or injury or such person or determinate class of persons is by reason of poverty, helplessness or disability, or social, economical, disadvantaged position, unable to approach the Court for relief and in such case, any number of the public can file a writ petition for securing justice to them. In this context also, it has been observed that the Court should not be indirectly used as an instrumentality by anyone to attain or obtain any beneficial achievement, which one cannot get through normal legal process. If anyone approaches the Court with ulterior motive, design to wrench some personal benefit by putting another within the clutches of law and using the Court as a device only for that end, but not to get any legal remedy, then in such a situation the Court should heavily come upon such a person and see that the authority of Court is not misused. [Sampat Singh vs. State of Haryana, (1993) 1 SCC 561, (Sampat Singh)]. Thus, only a person acting bona fide and having sufficient interest in the proceeding of public interest litigation alone have locus standi and can approach the Court for the poor and needy. But, a person for personal gain or private profit or political motive or in oblique consideration has no locus standi. Similarly, a vexatious petition in the guise of a public interest litigation brought before the Court for vindicating any personal grievance deserves rejection on the threshold. The Court should not allow its process to be abused by mere busy bodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either for themselves or as proxy of others or for any other extraneous motivations or for glare of publicity. [Janata Dal vs. H.S.Chowdhary (1992) 4 SCC 305, (Janata Dal)].<br>51. Even in a case of representative action or class action which could be initiated by any member of the class affected by any order or action or inaction on the part of the Government and/or authority, the same must affect a large number of persons of the same class. In order that the representative action should be properly constituted, the conditions that might be satisfied are :<br>(a) all the members of the alleged class should have a common interest;<br>(b) that all should have common grievances; and<br>(c) that the relief is in its nature beneficial to each of them. In a representative proceeding, the judgment or order is binding on all persons represented by the petitioner and the respondent, as the case may be.<br>52. Even in England, Lord Denning in various judgments liberalised and lowered the standing requirements in series of cases which are known as Blackburn Series of Cases. But, later, Section 31(3) of the Supreme Court Act, 1981 provided that the Court shall not grant leave to make an application for judicial review unless it considers that the applicant has sufficient interest to which the matter relates. The justification for such requirement lies in the need to limit challenge of administrative decision-making in genuine cases of grievances and to avoid unnecessary interference in the  administrative process by those, whose objectives are not authentic.<br>53. But, in India, such statutory provision is absent. In fact, the \"person aggrieved\" concept is the foundation for a writ petition being filed in a personal or individual capacity. That means a person who has suffered legal grievance who has right under a statute and he would thus be a person aggrieved.<br>54. The question of standing is held to go to the jurisdiction of the Court and it is not open to the respondents to waive the objection and thus, confer jurisdiction by agreement. A member of the public who has been inconvenienced can apply for certiorari. A particular party or person who has a particular grievance of his own can also apply for certiorari. If the application is made by a stranger, the remedy is purely discretionary. In a case where an association or a group of persons file a writ petition, it must be shown that the members of the association were aggrieved, because they were persons whose interest might be prejudicially affected by what had taken place and who had genuine grievances because  some thing had been done which affected them. But, if their interest is not affected and there is no prejudice caused to them by any action initiated by the authority, they would have no locus to apply for relief. [Source: \"Writ Remedies\", by Justice B.P.Banerjee, III Edition, 2004]<br>61. Day-in and day-out, the State, its instrumentalities and agencies would be engaged in governance and in passing various orders. It is only when an action taken by the State, its instrumentalities or agencies or an order passed by them, which would have a direct effect/impact on a person or a group of persons, then they could become aggrieved persons and have the locus standi to move a writ petition before the High Court under Article 226 of the Constitution. In the absence of any right of the petitioners being violated, such petitioners would not be persons aggrieved. Then, they have no locus to file a writ petition under Article 226 of the Constitution in their personal or individual capacity.<br>62. The above is in contra-distinction to a petition filed purely in public interest. In the case of public interest litigation, the petitioners would have no personal or individual interest in the subject matter of the petition. It is filed purely in public interest so as to secure justice for those who cannot approach the Court or in order to assail an illegal action initiated by the State Government, its<br>agencies or instrumentalities. In such a case, doctrine of locus standi is relaxed and the same is for the purpose of bringing to the notice of the High Court (or Supreme Court under Article 32 of the Constitution) for securing justice, in the realm of enforcement of fundamental rights, constitutional rights, or other legal rights for the benefit of those persons who are not in a position to approach the Constitutional Courts and in the larger interest of the general public. In all other cases, where a writ petition is filed under Article 226 of the Constitution, for enforcement of a fundamental right or any legal right, such a petitioner  must have a locus standi to do so by demonstrating that there is a legal wrong done to him by violation of his right and therefore, being an aggrieved person, has the right to file the writ petition and not otherwise.</h4></h4><h4><br></h4>', 'e80fcba63ceb29968fa82ce70a57179f.PNG', '4d9f0a4b8fc40fa3440ddeaed747576a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-26', 1, '', '', '2021-03-08 04:57:00', '2021-03-08 05:01:44'),
(544, 'WyMMD5aSd7lapW5xSEUfqXDrN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bail in NDPS cases. Though mere delay in obtaining Forensic Science Lab report is not a ground to grant bail-Prosecution shall secure the report at the earliest to prevent detention of accused for an indefinite period. Karnataka High Court. 6 Feb 2021', '<h4 style=\"text-align: right; \"><div style=\"text-align: left;\"><div>Mohmed Ali Tojari vs State of Karnataka. </div><div>Criminal Petition 7386 of 2020 decided on 6 February 2021. </div><div>Judgment Link:  <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/368895/1/CRLP7386-20-06-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/368895/1/CRLP7386-20-06-02-2021.pdf</a></div><div><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs:</span> <span style=\"font-size: 1.3125rem; color: rgb(72, 75, 76);\">This petition is filed under Section 439 of Cr.P.C. by the sole accused in Crime No.341/2020 of Kadugondanahalli Police Station, Bengaluru City, registered for offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.</span></div></div></h4><h4><font color=\"#484b4c\" face=\"-apple-system, .SFNSDisplay, Oxygen, Ubuntu, Roboto, Segoe UI, Helvetica Neue, Lucida Grande, sans-serif\"><div style=\"text-align: left;\"><span style=\"font-size: 1.3125rem;\">16. </span><span style=\"font-size: 1.3125rem;\">The contention of the learned senior counsel that at this stage there is no material to show that the material seized are narcotic drugs or psychotropic substances cannot be accepted, as it is seen from the mahazar that the raiding team tested the seized substance using a NDPS kit, which responded for ecstasy tablets. The document produced by the learned SPP would also show that the Assistant Commissioner of Police was informed about the raid by the officer regarding his search before a jurisdictional Magistrate or by a gazetted officer and the petitioner opted to be searched by the said officer himself. Further, an inventory of seized contraband was also drawn and sample was sent for examination to the State Forensic Science Laboratory, which was received by the FSL on 25.11.2020. In the above given circumstances, at this stage, it cannot be said that there is non-compliance of the provisions of Section 42 or </span><span style=\"font-size: 1.3125rem;\">50 of the NDPS Act or there is no prima-facie case made out against the petitioner.</span></div></font><font color=\"#484b4c\" face=\"-apple-system, .SFNSDisplay, Oxygen, Ubuntu, Roboto, Segoe UI, Helvetica Neue, Lucida Grande, sans-serif\"><div style=\"text-align: left;\"><span style=\"font-size: 1.3125rem;\">18. </span><span style=\"font-size: 1.3125rem;\">The learned SPP has relied upon the decision of this Court in the case of Tasleem N.P. @ Muhammed Thaslim </span><span style=\"font-size: 1.3125rem;\">N.P. Vs. State of Karnataka and  others  in  Crl.P. No.3073/2020 and connected matters,  decided  on 01.10.2020, wherein a co-ordinate bench of this Court has observed that when there are materials indicating existence of prima facie materials about the involvement of the petitioners in commission of the offence, the fact that the Investigation Officer could not obtain the FSL report within the stipulated time is not so significant.</span></div></font><font color=\"#484b4c\" face=\"-apple-system, .SFNSDisplay, Oxygen, Ubuntu, Roboto, Segoe UI, Helvetica Neue, Lucida Grande, sans-serif\"><div style=\"text-align: left;\"><span style=\"font-size: 1.3125rem;\">19. </span><span style=\"font-size: 1.3125rem;\">The learned SPP has also placed reliance on the decision of the Hon’ble Apex Court in the case of Supdt. Narcotics Control Bureau, Chennai Vs. R.Paulsamy reported </span><span style=\"font-size: 1.3125rem;\">in (2000)9 SCC 549. Para 6 of the said Judgment is extracted hereunder:</span></div></font><font color=\"#484b4c\" face=\"-apple-system, .SFNSDisplay, Oxygen, Ubuntu, Roboto, Segoe UI, Helvetica Neue, Lucida Grande, sans-serif\"><div style=\"text-align: left; margin-left: 25px;\"><span style=\"font-size: 1.3125rem;\"><i>“6. In the light of Section 37 of the Act no accused can be released on bail when the application is opposed by the Public Prosecutor unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that matters which could be established only in offence regarding compliance with Sections 52 and 57 have been pre- judged by the learned Single Judge at the stage of consideration for bail. The minimum which learned Single Judge should have taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the learned Single Judge during bail stage regarding the compliance with the formalities mentioned in those two sections.”</i></span></div></font><font color=\"#484b4c\" face=\"-apple-system, .SFNSDisplay, Oxygen, Ubuntu, Roboto, Segoe UI, Helvetica Neue, Lucida Grande, sans-serif\"><div style=\"text-align: left;\"><span style=\"font-size: 1.3125rem;\">20.</span><span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">In the case of State of Kerala Etc. Vs. Rajesh Etc. in Crl.A. Nos.154-157/2020, decided on 24.01.2020, the Hon’be Apex Court has observed at paras 20 and 21, which reads as under:</span></div></font><font color=\"#484b4c\" face=\"-apple-system, .SFNSDisplay, Oxygen, Ubuntu, Roboto, Segoe UI, Helvetica Neue, Lucida Grande, sans-serif\"><div style=\"text-align: left; margin-left: 25px;\"><i><span style=\"font-size: 1.3125rem;\">“20. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Cr.P.C, but</span><span style=\"font-size: 1.3125rem;\">is also subject to the limitation placed by Section 37 which commences with non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.</span></i></div></font><font color=\"#484b4c\" face=\"-apple-system, .SFNSDisplay, Oxygen, Ubuntu, Roboto, Segoe UI, Helvetica Neue, Lucida Grande, sans-serif\"><div style=\"text-align: left; margin-left: 25px;\"><i><span style=\"font-size: 1.3125rem;\">21. </span><span style=\"font-size: 1.3125rem;\">The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.”</span></i></div></font><font color=\"#484b4c\" face=\"-apple-system, .SFNSDisplay, Oxygen, Ubuntu, Roboto, Segoe UI, Helvetica Neue, Lucida Grande, sans-serif\"><div style=\"text-align: left;\"><span style=\"font-size: 1.3125rem;\">21. </span><span style=\"font-size: 1.3125rem;\">Having considered the entire facts and circumstances of the case and the material placed on record, it cannot be said at this stage that there are reasonable grounds to believe that </span><span style=\"font-size: 1.3125rem;\">the accused is not guilty of the offence. The photographs containing the CCTV footages annexed to the petition cannot be taken into consideration at this stage to hold that even prior to conducting of seizure panchanama, there was investigation etc. This Court while disposing of a bail petition is not expected to conduct an enquiry into the said aspect. The contraband alleged to have been seized are ecstasy tablets [MDMA] which according to the prosecution is about 42 gms. and therefore, the same is a commercial quantity and hence Section 37 of the NDPS Act is applicable to the present case.</span></div></font><font color=\"#484b4c\" face=\"-apple-system, .SFNSDisplay, Oxygen, Ubuntu, Roboto, Segoe UI, Helvetica Neue, Lucida Grande, sans-serif\"><div style=\"text-align: left;\"><span style=\"font-size: 1.3125rem;\">22. </span><span style=\"font-size: 1.3125rem;\">It is submitted by the learned SPP that the contraband has been sent for chemical examination and FSL report is awaited. The petitioner is in judicial custody. If the prosecution takes its own time to secure the FSL report, same will result in detention of the accused for an indefinite period. The FSL report shall be secured at the earliest, within a reasonable time. The petitioner is at liberty to move the jurisdictional Special Court if the report is not received within a reasonable time. Hence, the respondent is directed to secure the FSL report within a reasonable period, failing which the petitione </span><span style=\"font-size: 1.3125rem;\">is at liberty to file an application seeking similar relief before the jurisdictional Court.</span></div></font><font color=\"#484b4c\" face=\"-apple-system, .SFNSDisplay, Oxygen, Ubuntu, Roboto, Segoe UI, Helvetica Neue, Lucida Grande, sans-serif\"><div style=\"text-align: left;\"><span style=\"font-size: 1.3125rem;\">Petition is dismissed.</span></div></font><font color=\"#484b4c\" face=\"-apple-system, .SFNSDisplay, Oxygen, Ubuntu, Roboto, Segoe UI, Helvetica Neue, Lucida Grande, sans-serif\"><div style=\"text-align: left;\"><br></div></font></h4>', '63309a9143cc964f7dca8638ebcb22b9.jpg', 'eed4bb8fff58ce0f2a89b82e39ebf78a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-06', 1, '', '', '2021-03-08 17:33:37', '2021-03-08 17:37:34');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(545, 'EOkZeDYIYGyu0e0FkTjdbfFAz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'N.I.Act. Accused only a partner of the firm which issued cheque. Neither responsible for business conduct nor has power to open or operate bank account. Accused did not sign cheque. Proceedings liable to be quashed. Karnataka High Court. 11 Feb 2021', '<h4>K. Surekha vs A. Santosh Kumar.</h4><h4>Criminal Petition 101561 of 2020 decided on 11 February 2021</h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/368921/1/CRLP101561-20-11-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/368921/1/CRLP101561-20-11-02-2021.pdf</a></h4><h4>Relevant paragraphs: The prayer in this petition is for quashing of&nbsp; all&nbsp; further proceedings in CC No.1104/2015 ( PC No.84/2015) on the file of the learned Civil Judge and JMFC, Siruguppa for offence punishable under Section 138 of Negotiable Instruments Act, 1881, insofar as the present petitioner is concerned.</h4><h4>4. The petitioner herein contends that since&nbsp; she was a sleeping partner under the terms of the registered Partnership Deed dated 10.01 .2008 and since she was not responsible for day-to- day affairs of the partnership firm and also she had not signed the cheque in question, she is not liable to be prosecuted for offence punishable under Section 138 of NI Act and therefore, the complaint insofar as she is concerned is liable to be quashed.<br></h4><h4>6. There is no dispute about the fact that&nbsp; the cheque in question was drawn on the account held by the partnership firm which is accused No.1 and it&nbsp; was&nbsp; signed by accused No. 2-K. Srinivas Setty and also that the petitioner had not signed the said cheque.&nbsp;<br></h4><h4>8. In view of the above clauses in the partnership deed, the present petitioner was not responsible for carrying on the affairs of the partnership firm and she was also not responsible for the operation of the bank account by accused No.2 on behalf of the partnership firm. In that view of the matter, the only question for consideration is, whether the petitioner is liable to&nbsp; be&nbsp; prosecuted&nbsp; for having committed the offence punishable under&nbsp; Section 138 of NI Act, only on account of a&nbsp; cheque&nbsp; issued&nbsp; on behalf of the partnership firm being dishonoured and her being a partner of the firm as sought to&nbsp; be&nbsp; made out&nbsp; in&nbsp; the complaint filed?<br>9. This question is no&nbsp; longer&nbsp; res- integra .&nbsp; The Hon’ ble Supreme Court in a decision reported&nbsp; in&nbsp; 2020 SCC Online SC 600 (Shailendra Swarup Vs. Deputy Director, Enforcement Directorate) has directly answered this question. It is held in the said decision that insofar as companies registered under the Companies Act, 1956 are concerned, only those persons who are in- charge of and responsible for the&nbsp; conduct of the business of the company at the&nbsp; time of&nbsp; commission of offence will&nbsp; be liable for criminal action. The same principle should apply to the present case. Relevant observation of&nbsp; the&nbsp; Hon’ ble Supreme Court is available at para-35 of the said judgment. It reads as under:<br><i>“12. It is very clear from the above provision&nbsp; that what is required is&nbsp; that the&nbsp; persons who&nbsp; are sought to be made vicariously liable for a criminal offence under Section 141 should be, at the time the offence was committed, was in- charge of, and was responsible to the company for the conduct of the business of the company. Every person connected with the company shall not fall within the ambit of the provision. Only those persons who were in- charge of and responsible for the conduct of the&nbsp; business of&nbsp; the company at the time of commission of an offence will be liable for criminal action.&nbsp; It follows from the fact that if a Director of a Company who was not in-charge of and was not responsible for the conduct of the&nbsp; business of&nbsp; the company at the relevant time, will not be liable for a criminal offence under&nbsp; the&nbsp; provisions. The liability arises from being in- charge of and responsible for the conduct of the business of the company at the relevant time when the offence was committed and not on the basis of merely holding a&nbsp; designation or&nbsp; office in a company.</i><br><i>13. Section 141 is a penal provision creating vicarious liability, and which, as per settled law, must be strictly construed. It is therefore, not sufficient to make a bald cursory statement in a complaint that the Director ( arrayed as an accused) is in charge of and responsible to the company for the conduct of the business of the company without anything more as to the role of the Director. But the complaint should spell&nbsp; out as to how and in what manner respondent No.1 was in-charge of or was responsible to the accused company for the conduct of&nbsp; its business. This is in consonance with strict interpretation of penal statutes, especially, where such statutes create vicarious liability.”</i></h4><h4 style=\"margin-left: 25px;\"><i>“35.We may notice one more judgment of this Court, National Small Industries Corporation Limited Vs. Harmeet Singh Paintal, (2010)&nbsp; 3&nbsp; SCC 330 , interpreting Section 141 of the Negotiable Instruments Act, 1881. After extracting Section 141 of the Negotiable Instruments Act dealing with offences by companies, this Court in paragraph 12 and 13&nbsp; laid down:-<br></i></h4><h4>10. As already noticed herein above, in this&nbsp; case, the petitioner was only a partner of the firm which has issued the cheque and she was not responsible for the conduct of the business of the firm nor did she have any power to open the account or operate the account held by the partnership firm in commercial banks. It&nbsp; is&nbsp; also not&nbsp; the case of the complainant that&nbsp; the&nbsp; present&nbsp; petitioner has signed the cheque in question. Except a bald and cursory statement in the complaint that&nbsp; she&nbsp; had&nbsp; visited the complainant along with accused No.2 who is her husband, nothing has been averred as to how&nbsp; the&nbsp; petitioner herein was in charge of and responsible to the firm for the conduct of the business of the firm. A specific averment in the complaint as to how and in what manner&nbsp; the present petitioner was in charge of and responsible for the conduct of the business of the&nbsp; firm&nbsp; is&nbsp; mandatory before complainant can successfully invoke the Court to fasten vicarious liability for a criminal act. The&nbsp; complaint is totally bereft of such averments against the petitioner.&nbsp; In that view of the&nbsp; matter, the&nbsp; present petitioner cannot be prosecuted for the offence punishable&nbsp; under&nbsp; Section 138 of NI Act, upon the cheque issued by the partnership firm being dishonoured. Hence, the complaint as against&nbsp; the present petitioner is wholly illegal and to that extent the complaint is liable to be quashed.&nbsp;</h4>', 'ec5b8360be16360f9528b1082114e1c2.jpg', '30958fa567b77ef7f7b740b819f38c1f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-11', 1, '', '', '2021-03-08 18:18:21', '2021-03-08 18:34:08'),
(546, 'DOvxBM08cr5WOyfnenIbuYGpa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal trial. Multiple dying declarations. Each dying declaration has to be considered independently on its own merit as to its evidentiary value and one cannot be rejected because of the contents of the other. Supreme Court. 8 March 2021', '<h4>Nagabhushan vs The State of Karnataka&nbsp;</h4><h4>Criminal Appeal 443 of 2020 decided on 8 March 2021.</h4><h4>Justice Dr. Dhananjaya Y. Chandrachud and Justice M.R. Shah</h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/5750/5750_2020_36_1502_26738_Judgement_08-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/5750/5750_2020_36_1502_26738_Judgement_08-Mar-2021.pdf</a></h4><h4>Relevant paragraphs:&nbsp;7. Now so far as the merits of the appeal are concerned, it cannot be disputed that in the present case there are two dying declarations, (i) Exhibit P5 and (ii) Exhibit D2. The High Court in the impugned judgment and order has given cogent reasons to rely upon and believe the second dying declaration – Exhibit P5. The High Court has also taken note of the fact that the second dying declaration is reliable and the version in the second dying declaration is supported by the circumstances, namely, the injuries sustained by the deceased; no stove was found at the place of occurrence. The High Court has also taken note of the fact that in the second dying declaration, the deceased has explained her first statement that it was a case of accident and she categorically stated in the second dying declaration that at the time when she gave first statement that it was a case of accident, she was given threats by the appellant herein – original accused no.1 that he will kill her children also. She also stated in the second dying declaration that after her parents came, she got the courage to tell the truth. Therefore, as such, the High Court rightly believed the second dying declaration – Exhibit P5.<br>8. At this stage, the decisions of this Court in the cases of Nallam Veera Stayanandam v. Public Prosecutor (2004) 10 SCC 769; Kashmira Devi v. State of Uttarakhand (2020) 11 SCC 343; and Ashabai v. State of Maharashtra (2013) 2 SCC 224 are required to be referred to. In the aforesaid decisions, this Court had an occasion to consider the cases where there are multiple dying declarations. In the aforesaid decisions, it is held that each dying declaration has to be considered independently on its own merit as to its evidentiary value and one cannot be rejected because of the contents of the other. It is also held that the Court has to consider each of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated on its own merits.<br><br></h4>', 'ffba261a0e6944a2a0bd39a01e0ed16d.PNG', '5793d62e4abad3c53085a81fc6c54949.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-08', 1, '', '', '2021-03-09 01:09:49', '2021-03-09 01:11:06'),
(547, '1UoYhtaFDVCTpOx5HjyFOlIgt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Even in case of a joint liability of individuals only that person who has drawn the cheque on an account maintained by him can be prosecuted. Supreme Court. 8 March 2021', '<h4>Alka Khandu Avhad vs Amar Syamprasad Mishra & Anr. </h4><h4>Criminal Appeal 258 of 2021 decided on 8 March 2021. </h4><h4>Justice Dr. Dhananjaya Y. Chandrachud and Justice M.R. Shah. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/3283/3283_2020_36_1501_26738_Judgement_08-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/3283/3283_2020_36_1501_26738_Judgement_08-Mar-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs: </span>6. We have heard learned counsel appearing on behalf of the respective parties at length, considered material on record and also considered the averments and allegations in the complaint. It emerges from the record that the dishonoured cheque was issued by original accused No. 1 – husband of the appellant. It was drawn from the bank account of original accused No. 1. The dishonoured cheque was signed by original accused No. 1. Therefore, the dishonoured cheque was signed by original accused No. 1 and it was drawn on the bank account of original accused No. 1. The appellant herein-original accused No. 2 is neither the signatory to the cheque nor the dishonoured cheque was drawn from her bank account. That the account in question was not a joint account. In the light of the aforesaid facts, it is required to be considered whether the appellant herein – original accused No. 2 can be prosecuted for the offence punishable under Section 138 r/w Section 141 of the NI Act?<br>7. On a fair reading of Section 138 of the NI Act, before a person can be prosecuted, the following conditions are required to be satisfied:<br>i) that the cheque is drawn by a person and on an account maintained by him with a banker;<br>ii) for the payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability; and<br>iii) the said cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account.<br>Therefore, a person who is the signatory to the cheque and the cheque is drawn by that person on an account maintained by him and the cheque has been issued for the discharge, in whole or in part, of any debt or other liability and the said cheque has been returned by the bank unpaid, such person can be said to have committed an offence. Section 138 of the NI Act does not speak about the joint liability. <b style=\"background-color: rgb(255, 255, 0);\">Even in case of a joint liability, in case of individual persons, a person other than a person who has drawn the cheque on an account maintained by him, cannot be prosecuted for the offence under Section 138 of the NI Act. A person might have been jointly liable to pay the debt, but if such a person who might have been liable to pay the debt jointly, cannot be prosecuted unless the bank account is jointly maintained and that he was a signatory to the cheque. </b><br>8.1 Section 141 of the NI Act is relating to the offence by companies and it cannot be made applicable to the individuals. Learned counsel appearing on behalf of the original complainant has submitted that “Company” means any body corporate and includes, a firm or other association of individuals and therefore in case of a joint liability of two or more persons it will fall within “other association of individuals” and therefore with the aid of Section 141 of the NI Act, the appellant who is jointly liable to pay the debt, can be prosecuted. The aforesaid cannot be accepted. Two private individuals cannot be said to be “other association of individuals”. Therefore, there is no question of invoking Section 141 of the NI Act against the appellant, as the liability is the individual liability (may be a joint liabilities), but cannot be said to be the offence committed by a company or by it corporate or firm or other associations of individuals. The appellant herein is neither a Director nor a partner in any firm who has issued the cheque. Therefore, even the appellant cannot be convicted with the aid of Section 141 of the NI Act. </h4>', '6fb3826783dc736de90cba333a3f719a.jpg', '0313460e4332e002e35ba94d5d2ef48b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-08', 1, '', '', '2021-03-09 01:52:10', '2021-03-09 01:54:39'),
(548, 'J3ta7Dmf1oTYpIdbeQZhHBXvf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Section 141 relating to the offence by companies cannot be made applicable to individuals even in case of a joint liability of two or more persons. Only the signatory to cheque is liable. Supreme Court. 8 March 2021', '<h4>Alka Khandu Avhad vs Amar Syamprasad Mishra & Anr.</h4><h4>Criminal Appeal 258 of 2021 decided on 8 March 2021</h4><h4>Justice Dr. Dhananjaya Y. Chandrachud</h4><h4>Justice M. R. Shah</h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/3283/3283_2020_36_1501_26738_Judgement_08-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/3283/3283_2020_36_1501_26738_Judgement_08-Mar-2021.pdf</a></h4><h4>8. Now, so far as the case on behalf of the original complainant that the appellant herein – original accused No. 2 can be convicted with the aid of Section 141 of the NI Act is concerned, the aforesaid has no substance.<br></h4><h4><b style=\"background-color: rgb(255, 255, 0);\">8.1 Section 141 of the NI Act is relating to the offence by companies and it cannot be made applicable to the individuals. Learned counsel appearing on behalf of the original complainant has submitted that “Company” means any bodycorporate and includes, a firm or other association of individuals and therefore in case of a joint liability of two or more persons it will fall within “other association of individuals” and therefore with the aid of Section 141 of the NI Act, the appellant who is jointly liable to pay the debt, can be prosecuted. </b>The aforesaid cannot be accepted. Two private individuals cannot be said to be “other association of individuals”. Therefore, there is no question of invoking Section 141 of the NI Act against the appellant, as the liability is the individual liability (may be a joint liabilities), but cannot be said to be the offence committed by a company or by it corporate or firm or other associations of individuals. The appellant herein is neither a Director nor a partner in any firm who has issued the cheque. Therefore, even the appellant cannot be convicted with the aid of Section 141 of the NI Act. Therefore, the High Court has committed a grave error in not quashing the complaint against the appellant for the offence punishable under Section 138 r/w Section 141 of the NI Act. The criminal complaint filed against the appellant for the offence punishable under Section 138 r/w Section 141 of the NI Act, therefore, can be said to be abuse of process of law and therefore the same is required to be quashed and set aside.141 of the NI Act. </h4>', '164aa7b8e99578ae6987204f8cf84b05.PNG', '1dbef7e5bcdb83258a3fb72830f202dc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-08', 1, '', '', '2021-03-09 03:12:31', '2021-03-09 03:14:39'),
(549, '2giMN5RgCVD2Ry4Z7pPVpbVDt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Filing private complaint when earlier FIR on the same incident is pending investigation is clear abuse of process of law. Proper course is to apply to the Magistrate under Section 155-2 for directions to the police. Supreme Court. 8 March 2021', '<h4>Krishna Lal Chawla and others vs State of U.P. and another.&nbsp;</h4><h4>Criminal Appeal 283 of 2021 decided on 8 March 2021</h4><h4>Justice Mohan M Shandanagoudar&nbsp;</h4><h4>Justice R. Subhash Reddy.&nbsp;</h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/26114/26114_2020_40_1501_26742_Judgement_08-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/26114/26114_2020_40_1501_26742_Judgement_08-Mar-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs:</span> 6. The grave implications of allowing such misuse may be understood better in light of the following exposition by this Court in Amitbhai Anilchandra Shah v. CBI &amp; anr., (2013) 6 SCC 348:&nbsp;</h4><h4 style=\"margin-left: 25px;\"><i>“37. This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in the&nbsp; &nbsp;course&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;same&nbsp; &nbsp;transaction&nbsp; &nbsp;is&nbsp; &nbsp;not&nbsp; &nbsp;only impermissible&nbsp; &nbsp;but&nbsp; &nbsp;it&nbsp; &nbsp;violates&nbsp; &nbsp;Article&nbsp; &nbsp;21 of&nbsp; the Constitution. In T.T. Antony [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] , this Court has categorically held that registration of second FIR (which is not a cross­case) is violative of Article 21 of the Constitution…”&nbsp;</i></h4><h4>Article 21 of the Constitution guarantees that the right to life and liberty shall not be taken away except by due process of law. Permitting multiple complaints by the same party in respect of the same incident, whether it involves a cognizable or private complaint offence, will lead to the accused being entangled in numerous criminal proceedings. As such, he would be forced to keep surrendering his liberty and precious time before the police and the Courts, as and when required in each case<br>7. The implications of such successive FIRs on an individual’s rights under Article 21 of the Constitution has been elaborated further in T.T. Antony Thus, it is incumbent upon this Court to preserve&nbsp; &nbsp;this delicate balance between the power to investigate offences under the CrPC, and the fundamental right of the individual to be free from frivolous and repetitive criminal prosecutions forced upon him by the might of the State.If the Respondent No. 2 was aggrieved by lack of speedy investigation in the earlier case filed by him, the appropriate remedy would have been to apply to the Magistrate under Section 155(2), CrPC for directions to the police in this regard. Filing a private complaint without any prelude, after a gap of six years from the date of giving information to the police, smacks of mala fide on the part of Respondent No. 2.&nbsp;<br><br></h4><p><br></p>', '134d81a98275dd19b74b2c7355a6942c.PNG', 'ea2d6575c69d9b083984a69183a51f29.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-08', 1, '', '', '2021-03-09 04:26:33', '2021-03-09 23:32:24'),
(550, 'w37apckZrEyccKYL3F92R1ohT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Summoning of persons on frivolous complaints violates Article 21 of the Constitution. Magistrates should play important role in preventing abuse of Court process. Supreme Court. 8 March 2021', '<h4>Krishna Lal Chawla and others vs State of U.P. and another. <br>Criminal Appeal 283 of 2021 decided on 8 March 2021<br>Justice Mohan M Shandanagoudar <br>Justice R. Subhash Reddy. <br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/26114/26114_2020_40_1501_26742_Judgement_08-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/26114/26114_2020_40_1501_26742_Judgement_08-Mar-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs: </span>6. The grave implications of allowing such misuse may be understood better in light of the following exposition by this Court in Amitbhai Anilchandra Shah v. CBI & anr., (2013) 6 SCC 348: </h4><h4 style=\"margin-left: 25px;\"><i>“37. This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in the   course   of   the   same   transaction   is   not   only impermissible   but   it   violates   Article   21 of  the Constitution. In T.T. Antony [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] , this Court has categorically held that registration of second FIR (which is not a cross¬case) is violative of Article 21 of the Constitution…” </i></h4><h4>Article 21 of the Constitution guarantees that the right to life and liberty shall not be taken away except by due process of law. Permitting multiple complaints by the same party in respect of the same incident, whether it involves a cognizable or private complaint offence, will lead to the accused being entangled in numerous criminal proceedings. As such, he would be forced to keep surrendering his liberty and precious time before the police and the Courts, as and when required in each case<br><b style=\"background-color: rgb(255, 255, 0);\">Role of the Lower Judiciary in  Preventing Abuse of Court Process:</b><br>11. We find it imperative to observe that this is a case that should not have been allowed to reach as far as this Court. The justice dispensation machinery in India is plagued with backlogs, with 70% of the pendency before the subordinate courts being on the criminal side.1 A significant factor in this backlog is the vast mass of frivolous litigation instituted year after year by litigants with an intent to use the courts of justice for their own mischievous ends. Curtailing such vexatious litigation is, thus, a crucial step towards a more effective justice system – a step that cannot be   taken without the active involvement of the lower judiciary, especially in criminal proceedings.<br>12. Immediately  after the criminal   justice system is set in motion, its course is almost entirely dependent on the judicial application of mind by the Magistrate. When a police complaint is filed on the commission of a cognizable offence under Section 154 CrPC, the Magistrate decides if the charge against the accused person is made out before the trial begins. Separate procedure is prescribed if the complaint under Section 200 CrPC is filed. The aforesaid provisions make it abundantly clear that the Magistrate carries the stream of criminal proceeding forward after it is set in motion by the informant/complainant. Consequently, and automatically, the Magistrate also carries the responsibility for ensuring this stream does not carry forward in cases where it should not. <br>13. The aforesaid powers bestowed on the Magistrate have grave repercussions on individual citizens’ life and liberty. Thus, these powers also confer great responsibility on the shoulders of the Magistrate – and must be exercised with great caution, and after suitable judicial application of mind. Observations in a similar vein were made by this Court in  Pepsi  Foods  Ltd.  v.  Special Judicial Magistrate, (1998) 5 SCC 749..his Court, thus, clearly emphasised that the power to issue a summoning order is a matter of grave importance, and that the Magistrate must only allow criminal law to take its course after satisfying himself that there is a real case to be made.<br>14.   Similarly,   the   power   conferred   on   the   Magistrate   under Section 202, CrPC to postpone the issue of process pursuant to a private complaint also provides an important avenue for filtering out of frivolous complaints that must be fully exercised. A fourJudge Bench of this Court has eloquently expounded on this in Chandra  Deo  Singh  v.  Prokash  Chandra  Bose  &  Anr., AIR 1963 SC 1430: Thus, it is clear that, on receipt of a private complaint, the Magistrate must  first,  scrutinise it to examine if the allegations made in the private complaint, inter alia, smack of an instance of frivolous litigation; and  second,  examine and elicit the material that supports the case of the complainant.<br>15. It is said that every trial is a voyage of discovery in which the truth is the quest. In India, typically, the Judge is not actively involved in ‘fact­finding’ owing to the adversarial nature of our justice system. However, Section 165 of the Indian Evidence Act, 1872 by providing the Judge with the power to order production of material and put forth questions of any form at any time,marks the influence of inquisitorial processes in our legal system. This wide­ranging power further demonstrates the central role played by the Magistrate in the quest for justice and truth in criminal proceedings, and must be judiciously employed to stem the flow of frivolous litigation. <br>16. All of this leads to one inescapable conclusion. That the Trial Judge has a duty under the Constitution and the CrPC, to identify and dispose of frivolous litigation at an early stage by exercising, substantially and to the fullest extent, the powers conferred on him. This Court has earlier emphasised on the high degree of responsibility shouldered by the trial Judges in  All India   Judges’   Association   v.  Union   of   India,  (1992) 1 SCC 119.   <br>17. Frivolous litigation should not become the order of the day in India. From misusing the Public Interest Litigation jurisdiction of the Indian courts to abusing the criminal procedure for harassing their adversaries, the justice delivery system should not be used as a tool to fulfil personal vendetta. The Indian judiciary has taken cognizance of this issue. <br>18. As aforesaid, the trial courts and the Magistrates have an important role in curbing this injustice. They are the first lines of defence for both the integrity of the criminal justice system, and the harassed and distraught litigant. We are of the considered opinion that the trial courts have the power to not merely decide on acquittal or conviction of the accused person after the trial, but also the duty to nip frivolous litigations in the bud even before they reach the stage of trial by discharging the accused in fit cases. This would not only save judicial time that comes at the cost of public money, but would also protect the right to liberty that every person is entitled to under Article 21 of the Constitution. In this context, the trial Judges have as much, if not more, responsibility in safeguarding the fundamental rights of the citizens of India as the highest court of this land.<br></h4><p><br></p>', 'f80f0cbde19ebefb6ad4364a99396730.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-08', 1, '', '', '2021-03-09 23:30:36', '2021-03-09 23:32:55'),
(551, 'gBcjCPldP8HcyKYFxtSVplaPC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Customs Act 1962. Where one officer exercises power of assessment power of re-assessment must also be exercised by him or his successor and not by another officer of another department though he is of same rank. Supreme Court. 9 March 2021', '<h4>M/s. Canon India Private Limited vs Commissioner of Customs.<br></h4><h4>Civil Appeal 1827 of 2018 decided on 9 March 2021. </h4><h4>Chief Justice S.A. Bobde, Justice A.S. Bopanna and Justice V. Ramasubramanian.</h4><h4>Judgment Link:&nbsp;<a href=\"http://Judgement Link:&nbsp;&nbsp;https://main.sci.\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/3762/3762_2018_31_1501_26812_Judgement_09-Mar-2021.pdf</a><br>12. The nature of the power to recover the duty, not paid or short paid after the goods have been assessed and cleared for import, is broadly a power to review the earlier decision of assessment. Such a power is not inherent in any authority. Indeed, it has been conferred by Section 28 and other related provisions. The power has been so conferred specifically on “the proper officer” which must necessarily mean the proper officer who, in the first instance, assessed and cleared the goods i.e. the Deputy Commissioner Appraisal Group. Indeed, this must be so because no fiscal statute has been shown to us where the power to re-open assessment or recover duties which have escaped assessment has been conferred on an officer other than the officer of the rank of the officer who initially took the decision to assess the goods.<br>1<b style=\"background-color: rgb(255, 255, 0);\">3. Where the statute confers the same power to perform an act on different officers, as in this case, the two officers, especially when they belong to different departments, cannot exercise their powers in the same case. Where one officer has exercised his powers of assessment, the power to order re-assessment must also be exercised by the same officer or his successor and not by another officer of another department though he is designated to be an officer of the same rank. In our view, this would result into an anarchical and unruly operation of a statute which is not contemplated by any canon of construction of statute.</b><br>14. It is well known that <b style=\"background-color: rgb(255, 255, 0);\">when a statute directs that the things be done in a certain way, it must be done in that way alone. </b>As in this case, when the statute directs that “the proper officer” can determine duty not levied/not paid, it does not mean any proper officer but that proper officer alone. We find it completely impermissible to allow an officer, who has not passed the original order of assessment, to re-open the assessment on the grounds that the duty was not paid/not levied, by the original officer who had decided to clear the goods and who was competent and authorised to make the assessment. The nature of the power conferred by Section 28 (4) to recover duties which have escaped assessment is in the nature of an administrative review of an act. The section must therefore be construed as conferring the power of such review on the same officer or his successor or any other officer who has been assigned the function of assessment. In other words, an officer who did the assessment, could only undertake re-assessment [which is involved in Section 28 (4)].</h4>', '1154e4aa1cb02f98e9c0220f4baf51a2.png', '81416e1b837c3288280fe39dabfa95dc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-09', 1, '', '', '2021-03-10 00:03:06', '2021-03-10 00:11:23'),
(552, 'G8TwnpFv0w8rxV3TopTIbqJwd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Section 138. Test to prove prosecution case and burden on accused to rebut presumption is preponderance of probabilities and not beyond reasonable doubt. Supreme Court. 9 March 2021  ', '<h4>Sumeti Vij vs M/s. Paramount Tech Fab. </h4><h4>Criminal Appeal 292 of 2021 decided on 9 March 2021. </h4><h4>Justice Indu Malhotra and Justice Ajay Rastogi&nbsp;</h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/29233/29233_2019_42_1502_26778_Judgement_09-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/29233/29233_2019_42_1502_26778_Judgement_09-Mar-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs:</span> 12. In the instant case, the appellant has only recorded her statement under Section 313 of the Code, and has not adduced any evidence to rebut the presumption that the cheques were issued for consideration. Once the facts came on record remained unrebutted and supported with the evidence on record with no substantive evidence of defence of the appellant to explain the incriminating circumstances appearing in the complaint against her, no error has been committed by the High Court in the impugned judgment, and the appellant has been rightly convicted for the offence punishable under Section 138 of the Act and needs no interference of this Court.<br>13. The object of introducing Section 138 and other provisions of&nbsp; &nbsp;Chapter&nbsp; &nbsp;XVII&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; Act appears to be to enhance the acceptability of cheques in&nbsp; the settlement&nbsp; &nbsp;of liabilities. The drawer of the cheque be held liable to prosecution on dishonour of cheque with safeguards provided to prevent harassment of honest drawers. Section 138 primarily relates to a civil wrong and the&nbsp; &nbsp;amendment&nbsp; &nbsp;made&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;year&nbsp; &nbsp;2000&nbsp; &nbsp;specifically&nbsp; made&nbsp; it compoundable. The burden of proof was on the accused in view of presumption under Section 139 of the Act and the standard of proof&nbsp; &nbsp;was&nbsp; &nbsp;of&nbsp; &nbsp;“preponderance&nbsp; &nbsp;of probabilities”.&nbsp; The&nbsp; N.I.&nbsp; Act including a cheque carrying a presumption of consideration in terms of Sections 118(a) and 139 of the Act which is related to the purpose referred to.<br>14. There&nbsp; &nbsp;is&nbsp; &nbsp;a&nbsp; &nbsp;mandate&nbsp; &nbsp;of&nbsp; &nbsp;presumption&nbsp; &nbsp;of&nbsp; &nbsp;consideration&nbsp; &nbsp;in terms of the provisions of the Act and the onus shifts to the accused on proof of issuance of cheque to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms&nbsp; &nbsp;of Section&nbsp; &nbsp;138&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Act15. The scope of Section 139 of the Act is that when an accused has to rebut the presumption, the standard of proof for doing so is&nbsp; &nbsp;that&nbsp; &nbsp;of&nbsp; &nbsp;“preponderance&nbsp; or&nbsp; probabilities”&nbsp; &nbsp;which&nbsp; &nbsp;has&nbsp; &nbsp;been examined by a three­ Judge Bench of this Court in Rangappa vs. Sri Mohan, (2010) 11 SCC 441.<br>16. It is well settled that the proceedings under Section 138 of the Act are quasi ­criminal in nature, and the principles which apply to acquittal in other criminal cases are not applicable in the cases instituted under the Act.&nbsp;<br><b style=\"background-color: rgb(255, 255, 0);\">17. Likewise, under Section 139 of the Act, a presumption is raised that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. To&nbsp; &nbsp;rebut&nbsp; &nbsp;this&nbsp; &nbsp;presumption,&nbsp; &nbsp;facts&nbsp; &nbsp;must&nbsp; &nbsp;be&nbsp; &nbsp;adduced&nbsp; &nbsp;by&nbsp; &nbsp;the accused which on a preponderance of probability (not beyond reasonable doubt as in the case of criminal offences), must then be proved.&nbsp;&nbsp;</b><br>21.The statement of the accused recorded under Section 313 of the Code&nbsp; &nbsp;is&nbsp; &nbsp;not&nbsp; &nbsp;a&nbsp; &nbsp;substantive&nbsp; &nbsp;evidence&nbsp; &nbsp;of&nbsp; &nbsp;defence, but&nbsp; only an opportunity&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;accused&nbsp; &nbsp;to&nbsp; &nbsp;explain&nbsp; &nbsp;the&nbsp; &nbsp;incriminating circumstances appearing in the prosecution case of the accused. Therefore, there is no evidence to rebut the presumption that the cheques were issued for consideration.<br><b style=\"background-color: rgb(255, 255, 0);\">22. The judgment on which learned counsel for the appellant has placed reliance i.e.&nbsp; K.&nbsp; &nbsp;Prakashan&nbsp; &nbsp;vs.&nbsp; &nbsp;P.K.&nbsp; &nbsp;Surenderan&nbsp;(2008) 1 SCC 258 may not be of any assistance for the reason that in the case dealing under Section 138 of the Act, the prosecution has to prove the case and these cases being quasi­ criminal in nature are to be proved on the basis of the principles of “preponderance of probabilities”, and not on the principles as being examined in the criminal case to prove the guilt of the accused beyond reasonable doubt.&nbsp;</b></h4><div><br></div>', 'b189123bd04f6808777ee8cb8cee18ea.jpg', '4a287941cb4690e94bd9140b7d22489a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-09', 1, '', '', '2021-03-10 00:36:26', '2021-03-10 00:43:29'),
(553, 'mMkjNXYni5fig470mENFg5PLn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Statement under Section 313 Cr.P.C is not a substantive evidence. The accused who did not adduce any evidence to rebut the presumption cannot rely on the said statement. Supreme Court. 9 March 2021 ', '<h4>Sumeti Vij vs M/s. Paramount Tech Fab.<br>Criminal Appeal 292 of 2021 decided on 9 March 2021.<br>Justice Indu Malhotra and Justice Ajay Rastogi&nbsp;<br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/29233/29233_2019_42_1502_26778_Judgement_09-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/29233/29233_2019_42_1502_26778_Judgement_09-Mar-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs:</span> <b style=\"background-color: rgb(255, 255, 0);\">12. In the instant case, the appellant has only recorded her statement under Section 313 of the Code, and has not adduced any evidence to rebut the presumption that the cheques were issued for consideration. Once the facts came on record remained unrebutted and supported with the evidence on record with no substantive evidence of defence of the appellant to explain the incriminating circumstances appearing in the complaint against her, no error has been committed by the High Court in the impugned judgment, and the appellant has been rightly convicted for the offence punishable under Section 138 of the Act and needs no interference of this Court.</b><br>13. The object of introducing Section 138 and other provisions of&nbsp; &nbsp;Chapter&nbsp; &nbsp;XVII&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; Act appears to be to enhance the acceptability of cheques in&nbsp; the settlement&nbsp; &nbsp;of liabilities. The drawer of the cheque be held liable to prosecution on dishonour of cheque with safeguards provided to prevent harassment of honest drawers. Section 138 primarily relates to a civil wrong and the&nbsp; &nbsp;amendment&nbsp; &nbsp;made&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;year&nbsp; &nbsp;2000&nbsp; &nbsp;specifically&nbsp; made&nbsp; it compoundable. The burden of proof was on the accused in view of presumption under Section 139 of the Act and the standard of proof&nbsp; &nbsp;was&nbsp; &nbsp;of&nbsp; &nbsp;“preponderance&nbsp; &nbsp;of probabilities”.&nbsp; The&nbsp; N.I.&nbsp; Act including a cheque carrying a presumption of consideration in terms of Sections 118(a) and 139 of the Act which is related to the purpose referred to.<br>14. There&nbsp; &nbsp;is&nbsp; &nbsp;a&nbsp; &nbsp;mandate&nbsp; &nbsp;of&nbsp; &nbsp;presumption&nbsp; &nbsp;of&nbsp; &nbsp;consideration&nbsp; &nbsp;in terms of the provisions of the Act and the onus shifts to the accused on proof of issuance of cheque to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms&nbsp; &nbsp;of Section&nbsp; &nbsp;138&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Act15. The scope of Section 139 of the Act is that when an accused has to rebut the presumption, the standard of proof for doing so is&nbsp; &nbsp;that&nbsp; &nbsp;of&nbsp; &nbsp;“preponderance&nbsp; or&nbsp; probabilities”&nbsp; &nbsp;which&nbsp; &nbsp;has&nbsp; &nbsp;been examined by a three­ Judge Bench of this Court in Rangappa vs. Sri Mohan, (2010) 11 SCC 441.<br>16. It is well settled that the proceedings under Section 138 of the Act are quasi ­criminal in nature, and the principles which apply to acquittal in other criminal cases are not applicable in the cases instituted under the Act.&nbsp;<br>17. Likewise, under Section 139 of the Act, a presumption is raised that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. To&nbsp; &nbsp;rebut&nbsp; &nbsp;this&nbsp; &nbsp;presumption,&nbsp; &nbsp;facts&nbsp; &nbsp;must&nbsp; &nbsp;be&nbsp; &nbsp;adduced&nbsp; &nbsp;by&nbsp; &nbsp;the accused which on a preponderance of probability (not beyond reasonable doubt as in the case of criminal offences), must then be proved.&nbsp;&nbsp;<br><b style=\"background-color: rgb(255, 255, 0);\">21.The statement of the accused recorded under Section 313 of the Code&nbsp; &nbsp;is&nbsp; &nbsp;not&nbsp; &nbsp;a&nbsp; &nbsp;substantive&nbsp; &nbsp;evidence&nbsp; &nbsp;of&nbsp; &nbsp;defence, but&nbsp; only an opportunity&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;accused&nbsp; &nbsp;to&nbsp; &nbsp;explain&nbsp; &nbsp;the&nbsp; &nbsp;incriminating circumstances appearing in the prosecution case of the accused. Therefore, there is no evidence to rebut the presumption that the cheques were issued for consideration.</b><br>22. The judgment on which learned counsel for the appellant has placed reliance i.e.&nbsp; K.&nbsp; &nbsp;Prakashan&nbsp; &nbsp;vs.&nbsp; &nbsp;P.K.&nbsp; &nbsp;Surenderan (2008) 1 SCC 258 may not be of any assistance for the reason that in the case dealing under Section 138 of the Act, the prosecution has to prove the case and these cases being quasi­ criminal in nature are to be proved on the basis of the principles of “preponderance of probabilities”, and not on the principles as being examined in the criminal case to prove the guilt of the accused beyond reasonable doubt.&nbsp;</h4>', '3b05a3882031c1e1265181d07a9c8021.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-09', 1, '', '', '2021-03-10 00:55:01', '2021-03-10 00:55:30');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(554, 'FCMbJzp4fIr1dqgwV9zU6F5oW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Insolvency and Bankruptcy Code. Section 60. Arising out of and in relation to. Section cannot be invoked where termination of contract is on grounds unrelated to insolvency of corporate debtor and on ipso facto clause. Supreme Court. 8 March 2021', '<h4 style=\"font-size: 21px;\">Gujarat Urja Vikas Nigam Limited vs Amit Gupta & Ors. </h4><h4 style=\"font-size: 21px;\">Civil Appeal 9241 of 2019 decided on 8 March 2021. </h4><h4 style=\"font-size: 21px;\">Justice Dr Dhananjaya Y Chandrachud and Justice M.R. Shah. </h4><h4 style=\"font-size: 21px;\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/42523/42523_2019_36_1503_26738_Judgement_08-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/42523/42523_2019_36_1503_26738_Judgement_08-Mar-2021.pdf</a></h4><h4></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs: </span>1 By its judgment dated 29 August 2019, the National Company Law Tribunal stayed the termination by the appellant of its Power Purchase Agreement with Astonfield Solar (Gujarat) Private Limited. The order of the NCLT was passed in applications moved by the Resolution Professional of the Corporate Debtor and Exim Bank under Section 60(5) of the Insolvency and Bankruptcy Code, 20167. On 15 October 2019, the NCLAT dismissed the appeal by the appellant under Section 61 of the IBC. The decision by the NCLAT is called into question.</h4><h4>2. The appellant assails the order dated 15 October 2019 of the NCLAT on, inter alia, two broad grounds: first, that the NCLT and NCLAT do not possess jurisdiction under the IBC to adjudicate on a contractual dispute between the appellant and the Corporate Debtor; and second, in any event, the termination of the PPA was validly made under Article 9.2.1(e) and Article 9.3.1 of the PPA. recognized in a consistent line of authority, we hold that the NCLT was empowered to restrain the appellant from terminating the PPA. However, our decision is premised upon a recognition of the centrality of the PPA in the present case to the success of the CIRP, in the factual matrix of this case, since it is the sole contract for the sale of electricity which was entered into by the Corporate Debtor. In doing so, we reiterate that the NCLT would have been empowered to set aside the termination of the PPA in this case because the termination took place solely on the ground of insolvency. The jurisdiction of the NCLT under Section 60(5)(c) of the IBC cannot be invoked in matters where a termination may take place on grounds unrelated to the insolvency of the corporate debtor. Even more crucially, it cannot even be invoked in the event of a legitimate termination of a contract based on an ipso facto clause like Article 9.2.1(e) herein, if such termination will not have the effect of making certain the death of the corporate debtor. As such, in all future cases, NCLT would have to be wary of setting aside valid contractual terminations which would merely dilute the value of the corporate debtor, and not push it to its corporate death by virtue of it being the corporate debtor‘s sole contract (as was the case in this matter‘s unique factual matrix).</h4><h4>42 The primary issue upon which the outcome of this appeal would turn is the nature of the jurisdiction which is exercised by the NCLT under Section 60(5) of the IBC. The provision reads thus:</h4><h4 style=\"margin-left: 25px;\"><i>(5) Notwithstanding anything to the contrary contained in any other law for the time being in force, the National Company Law Tribunal shall have jurisdiction to entertain or dispose of –<br>(a) any application or proceeding by or against the corporate debtor or corporate person;<br>(b) any claim made by or against the corporate debtor or corporate person, including claims by or against any of its subsidiaries situated in India; and<br>(c) any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate p</i>erson under this Code.</h4><h4>165. Given that the terms used in Section 60(5)(c) are of wide import, as recognized in a consistent line of authority, we hold that the NCLT was empowered to restrain the appellant from terminating the PPA. However, our decision is premised upon a recognition of the centrality of the PPA in the present case to the success of the CIRP, in the factual matrix of this case, since it is the sole contract for the sale of electricity which was entered into by the Corporate Debtor. In doing so, we reiterate that the NCLT would have been empowered to set aside the termination of the PPA in this case because the termination took place solely on the ground of insolvency. <b style=\"background-color: rgb(255, 255, 0);\">The jurisdiction of the NCLT under Section 60(5)(c) of the IBC cannot be invoked in matters where a termination may take place on grounds unrelated to the insolvency of the corporate debtor. Even more crucially, it cannot even be invoked in the event of a legitimate termination of a contract based on an ipso facto clause like Article 9.2.1(e) herein, if such termination will not have the effect of making certain the death of the corporate debtor. As such, in all future cases, NCLT would have to be wary of setting aside valid contractual terminations which would merely dilute the value of the corporate debtor, and not push it to its corporate death by virtue of it being the corporate debtor‘s sole contract </b>(as was the case in this matter‘s unique factual matrix). </h4><h4>166. The terms of our intervention in the present case are limited. Judicial intervention should not create a fertile ground for the revival of the regime under section 22 of SICA which provided for suspension of wide-ranging contracts. Section 22 of the SICA cannot be brought in through the back door. The basis of our intervention in this case arises from the fact that if we allow the termination of the PPA which is the sole contract of the Corporate Debtor, governing the supply of electricity which it generates, it will pull the rug out from under the CIRP, making the corporate death of the Corporate Debtor a foregone conclusion. </h4><h4>173. In conclusion, we hold that:<br>(i) The NCLT/NCLAT could have exercised jurisdiction under section 60(5)(c) of the IBC to stay the termination of the PPA by the appellant, since the appellant sought to terminate the PPA under Article 9.2.1(e) only on account of the CIRP being initiated against the Corporate Debtor;<br>(ii) The NCLT/NCLAT correctly stayed the termination of the PPA by the appellant, since allowing it to terminate the PPA would certainly result in the corporate death of the Corporate Debtor due to the PPA being its sole contract; and<br>(iii) We leave open the broader question of the validity/invalidity of ipso facto clauses in contracts for legislative intervention. Consequently, for the above reasons we find no merit in this appeal and it is accordingly dismissed.</h4><h4><br></h4><div><br></div>', 'b46b451dac03347f65f8d1c0c1e03fd8.png', '7aef1198246a27e708155d55ad3cf64e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-08', 1, '', '', '2021-03-10 02:49:22', '2021-03-10 03:07:36'),
(555, 'cVSv4aF0KiIjrAxeB849GREtT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Succession Act. Amended Section 6. Plea of prior partition. Mere partition decree will not sever joint family status. Until final decree is passed and allottees of shares are put in possession - there is no partition. Karnataka High Court. 16:2:2021', '<h4>Jaywanthi K. Kapadia vs Dhansukhlal Venilal and others. </h4><h4>Regular First Appeal 1539 of 2011 decided on 16 February 2021. </h4><h4>Justice S. Sujatha and Justice Sachin Shankar Magadum. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/370267/1/RFA1539-11-16-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/370267/1/RFA1539-11-16-02-2021.pdf </a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs: </span>36. When a claim is made on the basis of a Will, this Court in the case of Sri J.T.Surappa and Another vs. Sri Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and Others ILR 2008 Kar 2115 has laid down the guidelines  to be followed by a Court. The learned Single Judge of this Court has laid down five steps which the Court has to take into consideration while dealing with legal requirements of proof of Will. The principle laid down in the above said judgment contemplates five steps. The first step is if the document produced before the Court prima facie do not satisfy the legal requirements, the Court need not make any further enquiry in regard to due execution and at the threshold can negative a claim based on the said document. The second step is that when the legal heirs are disinherited, the Court has to scrutinize the evidence with greater degree of care than usual. The third step would be to find out whether the testator was in a sound state of mind at the terms of executing the Will.  The fourth  step  would  be  to  find  out  whether  there  exists any suspicious circumstances surrounding the execution of the Will and the fifth step is to consider whether the Will that is executed is in accordance with Section 63 of the Indian Succession Act read with Section 68 of the Evidence Act.</h4><h4>38. The landmark judgment of the Hon\'ble Apex Court rendered in<span style=\"white-space:pre\">	</span>H.Venkatachala Iyengar vs. B.N.Thimmajamma and Others AIR 1959 SC 443  and recently followed in Kavita Kanwar vs. Mrs. Pamela Mehta & Others Civil Appeal No.3688/2017 decided on 19.05.2020 has laid down the mode of proof of Will and has elaborately discussed the onus of proof of the propounder and the manner in which the evidence on record is to be dealt with and appreciated.  The Hon\'ble Apex Court has further imposed a duty on Court in examining the Wills under dispute. The Hon\'ble Apex Court having regard to the provisions of Sections 67 and 68 of the Indian Evidence Act has discussed the parameters and the requirements in proving the Will. The Hon\'ble Apex Court in H.Venkatachala Iyengar (supra) has held that as in the case of proof of other documents so in the case of proof of Wills, it would be idle to expect proof with mathematical certainty.  The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. </h4><h4>j) <span style=\"font-size: 1.3125rem;\">The Hon’ble Apex Court in Smt. Jaswant Kaur vs. </span>Smt. Amrit Kaur and Others AIR 1977 SC 74 has held that the Court has to be extra cautious in respect of the Wills, the execution of  which is surrounded by suspicious circumstances, the Court is required to determine the question as to whether an instrument produced before the Court is the last Will of the testator. The Court is called upon to decide the solemn question and by reason of suspicious circumstances, the Court has to be satisfied fully that the Will has been validly executed by the testator.  The above said circumstances narrated by  this Court would raise a grave suspicion as regards the making of the Will. </h4><h4><b style=\"background-color: rgb(255, 255, 0);\">48. Having given careful consideration to the alleged memorandum of partition as per Ex.D-3 and the compromise petition in O.S.No.10736/1989 as per Ex.P-10 and also the affidavit filed by the defendant No.3 in O.S.No.5783/1991 as per Ex.P-7 wherein the defendant No.3 has admitted in unequivocal terms that all the parties are in joint possession and enjoyment over the properties and no single party is in exclusive possession and further the fact that the preliminary decree passed in O.S.No.6/1960 (renumbered as O.S.No.22/1960) is still pending in FDP.No.10042/1981 clearly establishes that there is no partition by metes and bounds. In the memorandum of partition as per Ex.D-3, none of the parties have received any properties and from the entire record, it is forthcoming that defendant Nos.1 to 3 are exclusively enjoying the properties as claimed by them under Ex.D-3 and in the compromise decree arrived in O.S.No.10736/1989. If all these relevant facts are taken into consideration, the principles laid down by the Hon\'ble Apex Court in Prema vs. Nanje Gowda and Others (2011) 6 SCC 462 are applicable. It would be useful for us to refer to paragraph 14  of the said judgment which reads thus:</b></h4><h4 style=\"margin-left: 25px;\"><i><b style=\"background-color: rgb(255, 255, 0);\">\"14. While dismissing the appeal preferred against the judgment of the High Court, this Court observed as under: (Sai Reddy case (1991) 3 SCC  647)<br>\"7........The crucial question, however, is as to when a partition can be said to have been effected for the purposes of the amended provision. A partition of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered  instrument of partition, by oral arrangement by the parties, or by a decree of the court. When a suit for partition is filed in a court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete.  The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied  on account of the intervening events. In the instant case, there is no dispute that only a preliminary  decree had been passed and before the final decree could be passed the amending Act came into force as  a result of which clause (ii) of Section 29-A of the Act became applicable........ Since the legislation is beneficial and placed on the statute book with the avowed object of benefiting women which is a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of  the joint family which can be effected by  an  expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in  all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a  partition  of the property is effected by metes and bounds, the daughters cannot be deprived of  the  benefits conferred by the Act. Any other view is likely to  deprive a vast section of the fair sex of the benefits conferred by the amendment.\"</b></i></h4><h4><b style=\"background-color: rgb(255, 255, 0);\">49.<span style=\"white-space:pre\">	</span>If there is no severance, then in view of the latest judgment of the Hon\'ble Apex Court rendered in VINEETA SHARMA (supra), we would hold that plaintiff would succeed as a co-parcener and she would take an independent share at par with her brothers as a co-parcener. The Hon\'ble  Apex Court at para 129 of the judgment has held as follows:</b></h4><h4 style=\"margin-left: 25px;\"><i>\"129. Resultantly, we answer the reference as under:<br>(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.<br>(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.<br>(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.<br>(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession  Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was  survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.<br>(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.\"</i></h4><h4>50. The conclusion arrived at by the Hon\'ble Apex Court at paragraph 129(iii) would squarely apply to the present case on hand. The said conclusion arrived at by the Hon\'ble Apex Court necessarily imply that irrespective of death of a propositus on or before 09.09.2005, the same would in no way affect the right of a daughter. The said conclusion would  clearly indicate that inspite of death of a father much prior to commencement to 2005 amendment, the daughter would still acquire the status of a co-parcener.<br></h4><h4><br></h4>', '9c7536425a082eca1957614253696f45.PNG', '8a3bc2c26b63fb580af6027a22e5c12f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-16', 1, '', '', '2021-03-10 03:45:43', '2021-03-14 18:50:23'),
(556, 'GVQK0qjAwwLUnA4mxYe2AJLSI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 200. Recording of sworn statement before taking cognizance is mandatory in cases other than complaints under Section 138 read with Section 145 Negotiable Instruments Act. Karnataka High Court. 15 February 2021', '<h4>Totangouda and others vs Galeppa. </h4><h4>Criminal Petition 101170 of 2018 decided on 15 February 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/368846/1/CRLP101170-18-15-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/368846/1/CRLP101170-18-15-02-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs: </span>The short question that falls for consideration in this petition filed under Section 482 of Cr.P.C. is whether in a private complaint filed under Section 200 of Cr.P.C., not involving commission of the offence punishable under Section 138 of the Negotiable Instruments, Act, 1881, the learned JMFC can substitute the mandatory requirement of recording sworn statement before taking cognizance by accepting  only  an affidavit of the complainant?</h4><h4>7. A perusal of the certified copy of the affidavit shows that it was sworn to before the Chief Ministerial Officer of the Court of Additional JMFC, Koppal, on 28/6/2017 which is also the date on which the private complaint seems to have been signed by the petitioner as could be seen from the certified copy which is at page 22 and page 23 of the petition papers.  Thereafter, the learned JMFC has passed a detailed order on 10/10/2017 taking cognizance for offence punishable under Sections 500 of IPC and has issued process to the present petitioners. Even though there is a reference in the impugned order that he has considered the statement of witnesses  examined before him, it is evident from the above that no such examination of witnesses/recording of sworn statements had been undertaken by him as mandated under Section 200 of Cr.P.C. It is useful to refer to Section 200 of Cr.P.C.</h4><h4 style=\"margin-left: 25px;\"><i>“200. Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and  also by the Magistrate:</i></h4><h4 style=\"margin-left: 25px;\"><i>Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-</i></h4><h4 style=\"margin-left: 25px;\"><i>(a)<span style=\"white-space:pre\">	</span>if a public servant acting or- purporting to act in the discharge of his official duties or a Court  has made the complaint; or</i></h4><h4 style=\"margin-left: 25px;\"><i>(b)<span style=\"white-space:pre\">	</span>if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:</i></h4><h4 style=\"margin-left: 25px;\"><i>Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them.”</i></h4><h4>8. It is evident from the above that recording of sworn statement of the complainant and the witnesses present before taking cognizance for offence is mandatory under Section 200 of Cr.P.C. <font color=\"#9c0000\">Apparently, the learned Additional JMFC has fallen into an error in assuming that an affidavit could be substituted for  the recording of sworn statement on account of a similar provision appearing in Section 145 of the  Negotiable Instruments Act, 1881. </font>Section 145 of the N.I.Act reads as follows:-</h4><h4 style=\"margin-left: 25px;\"><i>“145. Evidence on affidavit.—<br>(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any  enquiry,  trial or other proceeding under the said Code.<br>(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.</i></h4><h4><font color=\"#9c0000\">9. However, no such amendment has been incorporated to Section 200 of Cr.P.C. It continues to be a mandatory  requirement that Court shall record the sworn statement of the complainant and other witnesses present before he could examine the matter with regard to the question as to whether a case is made out for taking cognizance for offences.</font><br>10. In that view of the matter, the procedure adopted by the learned JMFC, Koppal, which is impugned herein is totally without the sanction of law and it is therefore illegal. Accordingly, it is liable to be set aside.<br>11. Hence, the following: The above Petition is allowed.<br>a) The order dated 10/10/2017 in CC No.789/2017, on the file of the learned Additional Civil Judge & JMFC, Koppal, is set aside.<br>b) The learned JMFC is directed to proceed with the private compliant by following the procedure contemplated under Section 200 of Cr.P.C. in accordance with law.<br></h4>', 'c59b224612f73528297e22c7d7d8cb45.jpg', '5fe6f3e9e7b9d89b1f9d024ec1c70a84.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-15', 1, '', '', '2021-03-10 20:59:02', '2021-03-10 21:04:08'),
(557, 'nMwBXlQH144vnMtnLw2cCOoBB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Power under Section 311 to summon material witness or examine person present can be invoked by the court suo motu and even at a stage when the case is posted for judgment. Karnataka High Court.', '<h4>Dinesh and others vs The State through Narona Police Station Kalaburagi. </h4><h4>Criminal Petition 200181 of 2021 decided on 16 February 2021. </h4><h4>Justice S. Vishwajith Shetty</h4><p><br></p><h4>1.Petitioners who are accused nos.1 to 3 in S.C.No.239/2017 pending on the file of I Addl. Sessions Judge, Kalaburagi, registered for the offences punishable under Sections 302, 201 read with 34 IPC, have challenged the order dated 06.01.2021 passed by the said Court exercising its power under Section 311 Cr.PC, principally on the ground that the learned Sessions Judge had no jurisdiction to exercise the power under Section 311 Cr.PC since the case was already posted for judgment.<br></h4><h4>8. The point for consideration that arises in this petition is, <span style=\"background-color: rgb(255, 255, 0);\"><b>\"whether the power under Section 311 Cr.PC could be invoked by the court even at a stage when the case is posted for judgment?\"</b></span><br></h4><h4>9. From the reading of Section 311 Cr.PC, it is clear that the power under the said section can be exercised by the court at any stage of any inquiry, trial or other proceedings under the Code. In the case on hand, the power exercised by the court below is during the course of \"trial\".<br></h4><h4>10. The word \'trial\' is not defined formally in the Criminal Procedure Code. However, the word \'inquiry\' has been defined in Section 2(g) of the Code, which reads as under: \"\"inquiry\" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;\"<br></h4><h4>11. In the case of Hardeep Singh vs State of Punjab (2014)3 SCC 92, the Constitution Bench of the Hon\'ble Apex Court while  considering the  ambit of Section 319 Cr.PC has held that trial is distinct from an inquiry and must necessarily succeed it. The purpose of the trial is to fasten the responsibility upon a person on the basis of facts presented and evidence led in this behalf. The legal position, has been summarized by holding that as \'trial\' means determination of issues adjudging the guilt or the innocence of a person, the person has to be aware of what is the case against him and it is only at the stage of framing of the charges, the courts puts him on notice of the same. The trial commences only after the charges are framed. The inquiry under Section 2(g) of Cr.PC is a stage before the actual commencement of trial and it is an act conducted under the Cr.PC by the Magistrate or the Court and it does not relate to the investigation of the case by the investigating agency, but it is an inquiry after the case is brought to the notice of the court on the filing of the charge sheet. The inquiry that is held prior to trial, is therefore, distinct. During trial, examination and determination of a charge or accusation against an accused may take place before the court and it may result into either the conviction or acquittal of the accused. During trial, evidence may be recorded by the court and its judgment delivered on appreciation of such evidence.<br></h4><h4>13. .... the question whether the word \'trial\' in criminal proceedings would include the stage of pronouncement of judgment in the case, is no more res integra. <span style=\"background-color: rgb(255, 255, 0);\"><b>The Hon\'ble Apex Court in Mohanlal Shamji Soni vs Union of India & another AIR 1991 SC 1346 case  has  referred  to  Section  540  of the  old Code  which is a  corresponding provision to  Section 311 of the new Code. The Hon\'ble Apex Court in Mohanlal Shamji Soni\'s case has held that the trial in criminal proceedings comes to an end or reaches its finality when the order or judgment is pronounced and until then the court has power to use Section 311 Cr.PC. Therefore, I am of the considered view that there is no merit in the contention of the learned Counsel for the petitioners that since the case is now posted for judgment, the learned Sessions Judge could not have invoked the power under Section 311 Cr.PC as the stage of trial is already over. Accordingly, the point for consideration is answered in the affirmative.</b></span><br></h4><h4>15.From the reading of the observations made by the learned Sessions Judge in the impugned order, it is clear that the learned Sessions Judge wanted to exercise his power under Section 311 Cr.PC only to see that justice has been done. The Hon\'ble Apex Court in Mohanlal Shamji Soni\'s case referred to supra, has observed in paragraphs 16 & 18 as under:</h4><h4 style=\"margin-left: 25px;\"><i>\"16. The second part of Section 540 as pointed out albeit imposes upon the Court an obligation of summoning or recalling and re- examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. Though any party to the proceedings points out the desirability some evidence being taken, then the Court has to exercise its power under this provision-either discretionary or mandatory-depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice. In this connection we would like to quote with approval the following views of Lumpkin, J. in Epps v. S., 19 Ga, 118 (Am), which reads thus: \"...it is not only the right but the duty of the presiding judge to call the  attention  of  the witness to it, whether it makes for or against  the  prosecution; his aim being neither to punish the innocent nor screen the guilty, but to administer the law correctly ..... Counsel seek only for their client\'s success; but the judge must watch that justice triumphs.\" </i></h4><h4 style=\"margin-left: 25px;\"><i>18. The next important question is  whether Section 540 gives the court carte-blanche drawing no underlying principle in the exercise of the extra-ordinary power and whether the said Section is unguided, uncontrolled and uncanalised. Though Section 540 (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or the cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties.\"</i></h4><h4>17. In the case on hand, it is neither the prosecution nor the defence which has filed the application under Section 311 Cr.PC, but it is the learned Sessions Judge himself who having noticed the mistake, has suo motu exercised the power under Section 311 Cr.PC and issued summons to PW- 30 only for the purpose of producing and marking the DNA report. As observed by the learned Sessions Judge, the evidence of PW-30 was deferred for the said purpose. But subsequently, though the other witnesses were examined, the court has failed to recall him and mark the DNA report, which according to the court is very essential for the purpose of a just decision in the case. Such an exercise of power by the learned Sessions Judge cannot be termed as an attempt to fill up the lacuna in the prosecution case. The exercise of power under Section 311 Cr.PC is for a just decision of the case. Under the circumstances, I am of the opinion that the impugned order passed by the learned Sessions Judge is legally correct and does not call for any interference at the hands of this Court. Accordingly, I proceed to pass the following order:<br></h4><h4><br><span style=\"color: rgb(156, 0, 0); background-color: rgb(255, 255, 0);\"><b>Petition is dismissed.</b></span><br><br></h4>', 'b511ab5f0c54112def5a697536a7c4b3.jpeg', '8473f591a638ad775ffaed0da2809872.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-16', 1, '', '', '2021-03-10 21:37:25', '2023-01-16 16:17:01'),
(558, 'jY2JwCoWGjWRpIkbFrwRs1etx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'I.B.Code 2016. Appeal to NCLAT from orders of Adjudicating Authority. Though Section 14 of the Limitation Act would not strictly apply to proceedings before quasi-­judicial Tribunal the underlying principles would apply. Supreme Court. 10 March 2021', '<h4>Kalpraj Dharmamshi and another vs Kotak Investment Advisors Ltd.</h4><h4>Civil Appeal 2943-2944 of 2020 decided on 10 March 2021.</h4><h4>Justice A.M.Khanwilkar, Justice B.R. Gavai and Justice Krishna Murari. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/16649/16649_2020_33_1501_26784_Judgement_10-Mar-2021.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">https://main.sci.gov.in/supremecourt/2020/16649/16649_2020_33_1501_26784_Judgement_10-Mar-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs (from the judgment and referred judgments). </span>35. In view of the rival submissions, following questions arise for our consideration. (i) Whether   the   appeals   filed   by   KIAL   before NCLAT were within limitation?...</h4><h4>37. .......though the provisions of the Limitation Act, as far as may be, would apply to the proceedings or appeals before the Adjudicating Authority, NCLAT, the Debt Recovery Tribunal or the Debt Recovery Appellate Tribunal, where a period of limitation for initiation of proceedings is provided under any special or local   law,   different   from   the   period   prescribed   by   the Schedule, the provisions of Section 3 shall apply, as if such period were the period prescribed by the Schedule.  It would further   reveal,   that for the purpose of determining any period of limitation prescribed for any suit, appeal or application   by   any   special   or   local law, the provisions contained in sections 4 to 24 (inclusive), shall apply only in so far, and to the extent to which, they are not expressly excluded by such special or local law.<br>43. Therefore,   the   crucial   question,   that   arises   for consideration, is as to whether the provisions of Section 14 of the Limitation Act or the principles laid down therein would be available to KIAL for exclusion of the period during which   it   was   prosecuting  the writ petition before the Division Bench of the Bombay High Court.<br>46. Perusal of the aforesaid conditions would make it amply clear, that one of the conditions that is required to be fulfilled is that both the proceedings are in a court. The question as to whether the provisions of Section 14 of the Limitation Act would also be applicable to the quasi­judicial forums as against the court, fell for consideration before this Court ..... the   word “court” in Section 14 takes its colour from the preceding words “civil proceedings”. It was therefore held, that the Limitation   Act   including   Section   14  would not apply to appeals filed before a quasi­judicial Tribunal.<br>50....The   entire legislative process is influenced by considerations of justice and reason. Justice and reason constitute the great general legislative intent in every piece of legislation.   It has been held   by   this   Court,   that   in   the   absence   of   some   other indication that the harsh or ridiculous effect was actually intended by the legislature, there is little reason to believe, that   it  represents   the   legislative intent. It is further observed, that the provisions contained in Sections 5 and 14 of the Limitation Act are meant for grant of relief, where a person has committed some mistake.....when sub­section (2) of Section 14 of the Limitation Act per se  is not applicable, the same would not mean, that the principles akin thereto would not be applicable.<br>51...    Though  strictly, the provisions of Section 14 of the Limitation Act would not be applicable to the  proceedings before a quasi­judicial Tribunal,   however,   the   principles   underlying   the   same would be applicable i.e. the proper approach will have to be of advancing the cause of justice, rather than to abort the proceedings. <br>53...the principle of section 14, which is a  principle based  on advancing the cause of justice  would certainly apply to exclude time taken in prosecuting proceedings which are bona fide  and pursued with due diligence but which end without a decision on the merits of the case.<br>85...We therefore have no hesitation to hold, that KIAL was entitled to extension of the period during which it was bona fide prosecuting a remedy before the High Court with due diligence  </h4><p><br></p>', '6b12e5443259d3baad8d42b567594742.PNG', '3cce09d9f89fcdc948a2cb0b7700809c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-10', 1, '', '', '2021-03-11 03:43:29', '2021-03-11 03:48:05'),
(559, 'SIHX8if5lM227WWuxY0QGlpvd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constitution of India. Article 226. By an interim order even the final relief ordinarily should not be granted. Supreme Court reiterates. 10 March 2021', '<h4>Pune Metropolitan Regional Development Authority vs Prakash Harkachand Parakh and others. </h4><h4>Civil Appeal 845 of 2021 decided on 10 March 2021. </h4><h4>Justice Indu Malhotra and Justice Ajay Rastogi. </h4><h4>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2020/1282/1282_2020_42_10_26857_Judgement_10-Mar-2021.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">https://main.sci.gov.in/supremecourt/2020/1282/1282_2020_42_10_26857_Judgement_10-Mar-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 3. The appellant is primarily aggrieved by an interim order passed by the High Court dated 4th October, 2019 in a writ petition filed at the instance of the 1st respondent pursuant to which the street opened for public use has been restricted on certain terms and conditions..&nbsp;</h4><h4><span style=\"background-color: rgb(255, 255, 0);\"><b>11. The nature of modification which has been made by the High Court vide order impugned dated 4th October, 2019 in the form of an ad-hoc interim arrangement, in our view, is exceeding its jurisdiction, and not within the realm of power of judicial review to be exercised under Article 226 of the Constitution. It is well settled that by an interim order, even the final relief ordinarily should not be granted.</b></span></h4><h4>12. Consequently, the appeal succeeds and is accordingly allowed. The order impugned passed by the High Court dated 4th October, 2019 is hereby quashed and set aside. We make it clear that the Writ Petition No. 8242 of 2019 be decided independently without being influenced by the observations made by us in the present order on its own merits in accordance with law. No costs.</h4><h4><br></h4>', '50851f16fa533e1e8806de08b87a01a5.png', '74f53723acd226e7c81497ed260025c2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-10', 1, '', '', '2021-03-11 04:24:48', '2021-03-11 04:36:25'),
(560, 'VIBwWILkLc01SrxM9NIXCHzuc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 482. Where complaint makes serious allegations of crime - plea of civil dispute or arbitral proceedings can only be defence during trial and cannot be examined for quashing the criminal proceedings. Supreme Court. 10 March 2021 ', '<h4>Priti Saraf and another vs State of NCT of Delhi and another. </h4><h4>Criminal Appeal 296 of 2021 decided on 10 March 2021. </h4><h4>Justice Indu Malhotra and Justice Ajay Rastogi. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/23258/23258_2019_42_1502_26857_Judgement_10-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/23258/23258_2019_42_1502_26857_Judgement_10-Mar-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs:</span> 23. It being a settled principle of law that to exercise powers under Section 482 CrPC, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint/FIR/charge-sheet and the High Court at that stage was not under an obligation to go into the matter or examine its correctness. Whatever appears on the face of the complaint/FIR/charge-sheet shall be taken into consideration without any critical examination of the same. The offence ought to appear ex facie on the complaint/FIR/charge-sheet and other documentary evidence, if any, on record.<br>24. The question which is raised for consideration is that in what circumstances and categories of cases, a criminal proceeding may be quashed either in exercise of the extraordinary powers of the High Court under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court under Section 482 CrPC. This has often been hotly debated before this Court and various High Courts. Though in a series of decisions, this question has been answered on several occasions by this Court, yet the same still comes up for consideration and is seriously debated.<br>25. In this backdrop, the scope and ambit of the inherent jurisdiction of the High Court under Section 482 CrPC has been examined in the judgment of this Court in State of Haryana and Ors. Vs. Bhajan Lal and Others. 1992 Suppl (1) SCC 335.<br>26. This Court has clarified the broad contours and parameters in laying down the guidelines which have to be kept in mind by the High Courts while exercising inherent powers under Section 482 CrPC. The aforesaid principles laid down by this Court are illustrative and not exhaustive. Nevertheless, it throws light on the circumstances <br>27. It has been further elucidated recently by this Court in Arnab Manoranjan Goswami Vs. State of Maharashtra and Others 2020 SCC Online SC 964 where jurisdiction of the High Court under Article 226 of the Constitution of India and Section 482 CrPC has been analysed at great length.</h4><h4>28. It is thus settled that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception.<br><b style=\"background-color: rgb(255, 255, 0);\">31. Be it noted that in the matter of exercise of inherent power by the High Court, the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court. </b>The Criminal Procedure Code contains a detailed procedure for investigation, framing of charge and trial, and in the event when the High Court is desirous of putting a halt to the known procedure of law, it must use proper circumspection with great care and caution to interfere in the complaint/FIR/charge-sheet in exercise of its inherent jurisdiction.</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">35. The submission made by Mr. P. Chidambaram, learned senior counsel for 2nd respondent showing bonafides and taking us through the documentary evidence annexed to the counter affidavit on record to show that it was a simple case of termination because of breach of terms of the contract giving rise to a purely civil dispute or initiation of the arbitral proceedings would not attract the provisions under Sections 406, 420, 34 IPC may not hold good at this stage for the reason what is being suggested by the learned counsel for the 2nd respondent can be his defence during the course of trial but was not open to be examined by the High Court to take a judicial notice and for quashing of the criminal proceedings in exercise of its inherent powers under Section 482 CrPC.</b></h4><p><br></p>', '81a9021cf653228debe945cfd0f480bb.PNG', '6cbc06313909fdc06b6a8e5a6260796c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-10', 1, '', '', '2021-03-11 05:06:14', '2021-03-11 05:09:06');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(561, 'HtlrvymlF5YXb7BIRtVGNnFm8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act. Period of limitation to apply under Section 11 is three years as per Article 137 of Schedule I Limitation Act 1963. Limitation runs from the date when there is failure to appoint arbitrator. Supreme Court. 10 March 2021', '<h4>Bharat Sanchar Nigam Ltd and another vs M/s. Nortel Networks India Pvt Ltd. </h4><h4>Civil Appeal 843 &amp; 844 of 2021 decided on 10 March 2021. </h4><h4>Justice Indu Malhotra and Justice Ajay Rastogi. Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2021/1579/1579_2021_42_1501_26857_Judgement_10-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/1579/1579_2021_42_1501_26857_Judgement_10-Mar-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: The present Appeals raise two important issues for our consideration :</h4><h4 style=\"margin-left: 25px;\"><i><b>(i) the period of limitation for filing an application under Section 11 of the Arbitration and Conciliation Act, 1996 and&nbsp;<br>(ii) whether the Court may refuse to make the reference under Section 11 where the claims are ex facie time-barred?</b></i></h4><h4>6. The 1996 Act has been framed for expeditious resolution of disputes, and various provisions have been incorporated in the Act to ensure that the arbitral proceedings are conducted in a time-bound manner. Various time lines have been provided in the 1996 Act.<br>9. To decide the issue of limitation for filing an application under Section 11, we must first examine whether the Arbitration Act, 1996 prescribes any period for the same. Section 11 does not prescribe any time period for filing an application under sub-section (6) for appointment of an arbitrator. Since there is no provision in the 1996 Act specifying the period of limitation for filing an application under Section 11, one would have to take recourse to the Limitation Act, 1963, as per Section 43 of the Arbitration Act, which provides that the Limitation Act shall apply to arbitrations, as it applies to proceedings in Court.<br>10. Since none of the Articles in the Schedule to the Limitation Act, 1963 provide a time period for filing an application for appointment of an arbitrator under Section 11, it would be covered by the residual provision Article 137 of the Limitation Act, 1963.<br>12. The period of limitation for filing a petition seeking appointment of an arbitrator/s cannot be confused or conflated with the period of limitation applicable to the substantive claims made in the underlying commercial contract. The period of limitation for such claims is prescribed under various Articles of the Limitation Act, 1963. The limitation for deciding the underlying substantive disputes is necessarily distinct from that of filing an application for appointment of an arbitrator.<br>13. Various High Courts have taken the view that Article 137 of the Limitation Act would be applicable to an application under Section 11 of the Arbitration Act.<br>17. Given the vacuum in the law to provide a period of limitation under Section 11 of the Arbitration and Conciliation 1996, the Courts have taken recourse to the position that the limitation period would be governed by Article 137, which provides a period of 3 years from the date when the right to apply accrues.However, this is an unduly long period for filing an application u/S. 11, since it would defeat the very object of the Act, which provides for expeditious resolution of commercial disputes within a time bound period. The 1996 Act has been amended twice over in 2015 and 2019, to provide for further time limits to ensure that the arbitration proceedings are conducted and concluded expeditiously. Section 29A mandates that the arbitral tribunal will conclude the proceedings within a period of 18 months. In view of the legislative intent, the period of 3 years for filing an application under Section 11 would run contrary to the scheme of the Act....It would be necessary for Parliament to effect an amendment to Section 11, prescribing a specific period of limitation within which a party may move the court for making an application for appointment of the arbitration under Section 11 of the 1996 Act.<br>18. Applying the aforesaid law to the facts of the present case, we find that the application under Section 11 was filed within the limitation period prescribed<br>19. We will now discuss the second issue which has arisen for consideration i.e. whether the Court while exercising jurisdiction under Section 11 is obligated to appoint an arbitrator even in a case where the claims are ex facie time-barred<br>23...Sub-section (6A) by a non-obstante clause provided that notwithstanding any judgment, decree or order of any court, the scope of examination at the Section 11 stage, would be confined to the existence of the arbitration agreement. The effect of the amendment was that if the existence of the arbitration agreement was not in dispute, all other issues would be left for the arbitral tribunal to decide. This was in reinforcement of the doctrine of kompetenz-kompetenz, which empowers the tribunal to rule on its own jurisdiction, including any objections with respect to the validity of the arbitration agreement; and thereby minimize judicial intervention at the pre-reference stage.<br>26..... In view of the legislative mandate contained in the amended Section 11(6A), the Court is now required only to examine the existence of the arbitration agreement. All other preliminary or threshold issues are left to be decided by the arbitrator under Section 16, which enshrines the kompetenzkomptenz principle. The doctrine of kompetenz-komptenz implies that the arbitral tribunal is empowered, and has the competence to rule on its own jurisdiction, including determination of all jurisdictional issues. This was<br>intended to minimise judicial intervention at the pre-reference stage, so that the arbitral process is not thwarted at the threshold when a preliminary<br>27. Section 11 has been further amended by the Arbitration and Conciliation (Amendment) Act, 2019 to promote institutionalization of arbitration in India. The 2019 Amendment Act has deleted sub-section (6A) in Section 11. However, the amended to Section 11 is yet to be notified. Consequently, sub-section (6A) continues to remain on the statute book, and governs the scope of power under Section 11 for the present<br>29. After the amendment by the 2019 Amendment to Section 11 is notified, it will result in the deletion of sub-section (6A), and the default power will be exercised by arbitral institutions designated by the Supreme Court, or the High Court, as the case may be. It is relevant to note that sub-section (6B) in Section 11, has not been amended by the 2019 Amendment Act. Sub-section (6B) provides that the designation of any person, or institution by the Court, shall not be regarded as a delegation of “judicial power”. Consequently, it would not be open for the person or institution designated by the Court to exercise any judicial power, and adjudicate on any issue, including the issue of validity of the agreement, or the arbitrability of disputes.&nbsp;<br>32. The issue of limitation, in essence, goes to the maintainability or admissibility of the claim, which is to be decided by the arbitral tribunal. For instance, a challenge that a claim is time-barred, or prohibited until some precondition is fulfilled, is a challenge to the admissibility of that claim, and not a challenge to the jurisdiction of the arbitrator to decide the claim itself.&nbsp;<br>35. The issue of limitation which concerns the “admissibility” of the claim, must be decided by the arbitral tribunal either as a preliminary issue, or at the final stage after evidence is led by the parties<br>36.....While exercising jurisdiction under Section 11 as the judicial forum, the court may exercise the prima facie test to screen and knockdown ex facie meritless, frivolous, and dishonest litigation. Limited jurisdiction of the Courts would ensure expeditious and efficient disposal at the referral stage. At the referral stage, the Court can interfere “only” when it is “manifest” that the claims are ex facie time barred and dead, or there is no subsisting dispute.<br>37...It is only in the very limited category of cases, where there is not even a vestige of doubt that the claim is ex facie time-barred, or that the dispute is non-arbitrable, that the court may decline to make the reference. However, if there is even the slightest doubt, the rule is to refer the disputes to arbitration, otherwise it would encroach upon what is essentially a matter to be determined by the tribunal.</h4><h4><font color=\"#ce0000\">40.Conclusion</font></h4><h4><font color=\"#ce0000\">Accordingly, we hold that :</font></h4><h4><font color=\"#ce0000\">(i) The period of limitation for filing an application under Section 11 would be governed by Article 137 of the First Schedule of the Limitation Act, 1963. The period of limitation will begin to run from the date when there is failure to appoint the arbitrator; It has been suggested that the Parliament may consider amending Section 11 of the 1996 Act to provide a period of limitation for filing an application under this provision, which is in consonance with the object of expeditious disposal of arbitration proceedings;</font></h4><h4><font color=\"#ce0000\">(ii) In rare and exceptional cases, where the claims are ex facie timebarred, and it is manifest that there is no subsisting dispute, the Court may refuse to make the reference.&nbsp;</font></h4><h4><span style=\"color: rgb(206, 0, 0);\"><br></span></h4><h4><span style=\"color: rgb(206, 0, 0);\"><br></span></h4><h4><span style=\"color: rgb(206, 0, 0);\"><br></span></h4><h4><span style=\"color: rgb(206, 0, 0);\"><br></span></h4><h4><br></h4>', 'd35f6368b3a429d86c9b6b2471b1a239.PNG', 'bbefdc664a23184e1bfa1f813465c6b8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-10', 1, '', '', '2021-03-11 19:15:13', '2021-03-11 19:32:46'),
(562, 'R3s0AZJL24zs975NsWZ7X0H6l', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act. Section 11. In rare and exceptional cases where the claims are ex facie time barred and it is manifest that there is no subsisting dispute the Court may refuse to make the reference. Supreme Court. 10 March 2021', '<h4>Bharat Sanchar Nigam Ltd and another vs M/s. Nortel Networks India Pvt Ltd.<br>Civil Appeal 843 &amp; 844 of 2021 decided on 10 March 2021.<br>Justice Indu Malhotra and Justice Ajay Rastogi. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/1579/1579_2021_42_1501_26857_Judgement_10-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/1579/1579_2021_42_1501_26857_Judgement_10-Mar-2021.pdf</a><br><span style=\"color: rgb(206, 0, 0); background-color: rgb(255, 255, 0);\">Relevant paragraphs:</span> The present Appeals raise two important issues for our consideration :<br>(i) the period of limitation for filing an application under Section 11 of the Arbitration and Conciliation Act, 1996 and&nbsp;<br>(ii) whether the Court may refuse to make the reference under Section 11 where the claims are ex facie time-barred?<br>6. The 1996 Act has been framed for expeditious resolution of disputes, and various provisions have been incorporated in the Act to ensure that the arbitral proceedings are conducted in a time-bound manner. Various time lines have been provided in the 1996 Act.<br>9. To decide the issue of limitation for filing an application under Section 11, we must first examine whether the Arbitration Act, 1996 prescribes any period for the same. Section 11 does not prescribe any time period for filing an application under sub-section (6) for appointment of an arbitrator. Since there is no provision in the 1996 Act specifying the period of limitation for filing an application under Section 11, one would have to take recourse to the Limitation Act, 1963, as per Section 43 of the Arbitration Act, which provides that the Limitation Act shall apply to arbitrations, as it applies to proceedings in Court.<br>10. Since none of the Articles in the Schedule to the Limitation Act, 1963 provide a time period for filing an application for appointment of an arbitrator under Section 11, it would be covered by the residual provision Article 137 of the Limitation Act, 1963.<br>12. The period of limitation for filing a petition seeking appointment of an arbitrator/s cannot be confused or conflated with the period of limitation applicable to the substantive claims made in the underlying commercial contract. The period of limitation for such claims is prescribed under various Articles of the Limitation Act, 1963. The limitation for deciding the underlying substantive disputes is necessarily distinct from that of filing an application for appointment of an arbitrator.<br>13. Various High Courts have taken the view that Article 137 of the Limitation Act would be applicable to an application under Section 11 of the Arbitration Act.<br>17. Given the vacuum in the law to provide a period of limitation under Section 11 of the Arbitration and Conciliation 1996, the Courts have taken recourse to the position that the limitation period would be governed by Article 137, which provides a period of 3 years from the date when the right to apply accrues.However, this is an unduly long period for filing an application u/S. 11, since it would defeat the very object of the Act, which provides for expeditious resolution of commercial disputes within a time bound period. The 1996 Act has been amended twice over in 2015 and 2019, to provide for further time limits to ensure that the arbitration proceedings are conducted and concluded expeditiously. Section 29A mandates that the arbitral tribunal will conclude the proceedings within a period of 18 months. In view of the legislative intent, the period of 3 years for filing an application under Section 11 would run contrary to the scheme of the Act....It would be necessary for Parliament to effect an amendment to Section 11, prescribing a specific period of limitation within which a party may move the court for making an application for appointment of the arbitration under Section 11 of the 1996 Act.<br>18. Applying the aforesaid law to the facts of the present case, we find that the application under Section 11 was filed within the limitation period prescribed<br>19. We will now discuss the second issue which has arisen for consideration i.e. whether the Court while exercising jurisdiction under Section 11 is obligated to appoint an arbitrator even in a case where the claims are ex facie time-barred<br>23...Sub-section (6A) by a non-obstante clause provided that notwithstanding any judgment, decree or order of any court, the scope of examination at the Section 11 stage, would be confined to the existence of the arbitration agreement. The effect of the amendment was that if the existence of the arbitration agreement was not in dispute, all other issues would be left for the arbitral tribunal to decide. This was in reinforcement of the doctrine of kompetenz-kompetenz, which empowers the tribunal to rule on its own jurisdiction, including any objections with respect to the validity of the arbitration agreement; and thereby minimize judicial intervention at the pre-reference stage.<br>26..... In view of the legislative mandate contained in the amended Section 11(6A), the Court is now required only to examine the existence of the arbitration agreement. All other preliminary or threshold issues are left to be decided by the arbitrator under Section 16, which enshrines the kompetenzkomptenz principle. The doctrine of kompetenz-komptenz implies that the arbitral tribunal is empowered, and has the competence to rule on its own jurisdiction, including determination of all jurisdictional issues. This was<br>intended to minimise judicial intervention at the pre-reference stage, so that the arbitral process is not thwarted at the threshold when a preliminary<br>27. Section 11 has been further amended by the Arbitration and Conciliation (Amendment) Act, 2019 to promote institutionalization of arbitration in India. The 2019 Amendment Act has deleted sub-section (6A) in Section 11. However, the amended to Section 11 is yet to be notified. Consequently, sub-section (6A) continues to remain on the statute book, and governs the scope of power under Section 11 for the present<br>29. After the amendment by the 2019 Amendment to Section 11 is notified, it will result in the deletion of sub-section (6A), and the default power will be exercised by arbitral institutions designated by the Supreme Court, or the High Court, as the case may be. It is relevant to note that sub-section (6B) in Section 11, has not been amended by the 2019 Amendment Act. Sub-section (6B) provides that the designation of any person, or institution by the Court, shall not be regarded as a delegation of “judicial power”. Consequently, it would not be open for the person or institution designated by the Court to exercise any judicial power, and adjudicate on any issue, including the issue of validity of the agreement, or the arbitrability of disputes.&nbsp;<br>32. The issue of limitation, in essence, goes to the maintainability or admissibility of the claim, which is to be decided by the arbitral tribunal. For instance, a challenge that a claim is time-barred, or prohibited until some precondition is fulfilled, is a challenge to the admissibility of that claim, and not a challenge to the jurisdiction of the arbitrator to decide the claim itself.&nbsp;<br>35. The issue of limitation which concerns the “admissibility” of the claim, must be decided by the arbitral tribunal either as a preliminary issue, or at the final stage after evidence is led by the parties<br>36.....While exercising jurisdiction under Section 11 as the judicial forum, the court may exercise the prima facie test to screen and knockdown ex facie meritless, frivolous, and dishonest litigation. Limited jurisdiction of the Courts would ensure expeditious and efficient disposal at the referral stage. At the referral stage, the Court can interfere “only” when it is “manifest” that the claims are ex facie time barred and dead, or there is no subsisting dispute.<br>37...It is only in the very limited category of cases, where there is not even a vestige of doubt that the claim is ex facie time-barred, or that the dispute is non-arbitrable, that the court may decline to make the reference. However, if there is even the slightest doubt, the rule is to refer the disputes to arbitration, otherwise it would encroach upon what is essentially a matter to be determined by the tribunal.<br></h4><h4><font color=\"#ce0000\">40.Conclusion</font></h4><h4><font color=\"#ce0000\">Accordingly, we hold that :</font></h4><h4><font color=\"#ce0000\">(i) The period of limitation for filing an application under Section 11 would be governed by Article 137 of the First Schedule of the Limitation Act, 1963. The period of limitation will begin to run from the date when there is failure to appoint the arbitrator; It has been suggested that the Parliament may consider amending Section 11 of the 1996 Act to provide a period of limitation for filing an application under this provision, which is in consonance with the object of expeditious disposal of arbitration proceedings;</font></h4><h4><font color=\"#ce0000\">(ii) In rare and exceptional cases, where the claims are ex facie timebarred, and it is manifest that there is no subsisting dispute, the Court may refuse to make the reference.&nbsp;</font></h4><h4><br><br><br></h4><p><br></p>', '3831650ccf7d14d89c1632c294d8468a.jpg', '448580d2ff97e00721158449709985c7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-10', 1, '', '', '2021-03-11 19:26:05', '2021-03-11 19:31:03'),
(563, 'KdfXIaqZlnJzH4ayPWnnmdzYo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Medical Negligence. Criminal prosecution is a serious matter. For an act to amount to criminal negligence the degree of negligence should be gross or of a very high degree-Karnataka Court-while quashing criminal proceedings against doctor. 2 February 2021', '<h4>Manipal Hospital and another vs Binayak Bhattacharjee. </h4><h4>Criminal Petition 6186 of 2021 decided on 2 February 2021. Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/370856/1/CRLP6186-20-02-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/370856/1/CRLP6186-20-02-03-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs: </span>This petition is filed under Section 482 of Cr.P.C. praying this Court to set aside the impugned order dated 18.08.2020 passed by the LXXIII Additional City Civil and Sessions Court (CCH-74) Mayo Hall Unit, Bengaluru in Crl.R.P.No.25021/2019.</h4><h4>2. The factual matrix of the case is that the respondent had filed a private complaint before the Trial Court and the same is numbered as P.C.R.No.55291/2018. The learned Magistrate after taking the cognizance proceeded to record the sworn statement and dismissed the complaint. Being aggrieved by the order of dismissal of the complaint, revision petition was filed before the Revisional Court, which is numbered as Crl.R.P.25021/2019. The Revisional Court after considering the material on record, set aside the order of the learned Magistrate in dismissing the complaint and restored the complaint and directed to take cognizance against the accused/petitioners herein and proceed in accordance with law. Hence, the present petition is filed.<br>3. The factual matrix of the case is that the complainant/respondent is a citizen of USA, who is residing in India as an Overseas Citizen of India, on his employment. The complainant’s mother was also residing with him. The petitioner No.1 is the hospital and petitioner No.2 is the doctor Shankar Kumar who gave treatment to the complainant’s mother Mrs.Gouri Debi @ Gouri Bhattacharya. The complainant had taken his mother to Manipal Hospital, petitioner No.1 herein, for treatment with a history of profuse bleeding inside her mouth, for consultation of Dr.Shankar Kumar, petitioner No.2 herein, who is doctor of internal medicine in petitioner No.1 hospital, wherein the petitioner No.2 is practicing.<br>4. The complainant had informed the petitioner No.2 herein that his mother is suffering from anemia and GI (gastrointestinal) bleeding in anemia and she had taken treatment on previous occasion in the same hospital for bleeding and anemia, informed hypothyroidism and uncontrolled chronic hypertension, previous treatment for the same, but, the complainant had informed petitioner No.2 that his mother had no any heart problems or chest pain, chest discomfort and she never had any heart attack or stroke in the past and present. The complainant also contended that petitioner No.2 herein failed to ascertain the exact nature of disease, from which the complainant’s mother was suffering. But, by ignoring the previous and recent treatment history of the patient, the petitioner No.2 without going to the history of the patient, without proper treatment, without ascertaining the disease of  the patient, had prescribed a new medicine i.e., Zyrova-C capsule that contained Rosuvastatin and blood thinner antiplatelet medication Clopidogrel, but, Clopidogrel is not recommended for patient with a history of bleeding. Without giving any treatment for controlling the blood pressure, petitioner No.2 used to give new medicine, which is not meant for disease from which the patient was suffering.<br>5. It is contended that Clopidogrel is a dangerous drug, which is meant for patient who had heart attack, stroke or coronary stent insertion. The petitioner No.2 has given wrong treatment to the complainant’s mother, on account of which, the complainant’s mother died. The petitioner No.2 gave treatment without ascertaining the disease which caused side effect to old age patient, when the patient was suffering from heavy bleeding in her brain and sub-arachnoid hemorrhage, which was caused on account of consumption of Clopidogrel, a wrong medicine prescribed by the doctor, petitioner No.2. Though  petitioner No.2 found that the patient has uncontrolled chronic hypertension, failed to change the correct medication.  The wrong treatment and consumption of wrong medicine  Clopidogrel prescribed by petitioner No.2 led to rupture of anurysm, subarachnold hemorrhage, excessive bleeding and worst prognosis, on account of which patient went in coma for 28 days and died on 14.10.2015.<br>6. The learned Magistrate after receiving the complaint, recorded the sworn statement and passed the order dated 03.11.2018 dismissing the complaint. While dismissing the complaint, the learned Magistrate has given the reason that the complainant has produced medical certificate of cause of death, which is marked as Ex.C.2 issued by the Institute of Neurosciences, Kolkata. The certificate discloses the cause of death as natural and the age of the mother is mentioned as 81 years. On perusal of the materials available on record, same are not sufficient to hold that due to wrong medication the mother of the complainant passed away and as such medical certificate for cause of death discloses the death of mother of the complainant is natural.<br>7. Being aggrieved by the order of the learned Magistrate, the revision petition is filed and the Revisional Court vide order dated 18.08.2020, reversed the findings of the learned Magistrate.</h4><h4>13. Having heard the learned counsel for the petitioners and the learned counsel for the respondent, this Court has to appreciate the material available on record and the question involved in the matter is whether it is a case of gross medical negligence on the part of petitioner No.2, who is working in the petitioner No.1 hospital. <br>14.Now this Court has to evaluate the material available on record. On perusal of the document of out patient record dated 30.05.2015, the complainant’s mother was taken to the hospital with the history of throat irritation and weakness from last 15 days and BP was 170/80 and the doctor prescribed tablet Zyrova-C and also other drugs. Again the patient was taken to the hospital on 27.06.2015 for pain in right shoulder and at that time BP was 150/85 and the said tablet was not continued.  Again the patient was taken to the hospital on 25.07.2015 and  at that time the patient was having shadows moving and BP was 170/80. These are the three documents available before the Court for having taken the deceased to the hospital from 30.05.2015 to 25.07.2015. On 27.07.2015, she was diagnosed with chronic anemia (under evaluation), Suspected Myelodysplastic syndrome (Refractory Anemia), No organomegaly, normocytic anemia, Normal LDH, Reticulocyte & creat, Negative SPEP Anemia due to RBC destruction due to AS, No transfusion till date. Having diagnosed the same, advise was made to give Inj. Encicarb (500 mg), Inj. Optineuron 1 ampule in 100 ml NS over 30 min IV once a week for 2 weeks, Tab. Folvite 5 mg., Rule out blood loss in view of occult blood positive test earlier in the past. It was advised for cardiology evaluation for assessing AS and possibility of anemia due to critical AS and advised for review in Hematology and Medical Oncology OPD after 2 weeks with CBC with prior appointment.<br><span style=\"background-color: rgb(255, 255, 0);\"><b>15. Having perused the records, it is not in dispute that the patient was treated as out patient for the above period and no material is placed before the Court with regard to cardiology evaluation for assessing AS and possibility of anemia due to critical AS.</b></span> It is the contention of the learned counsel for the petitioners that the patient was taken to the cardiologist without the knowledge to the petitioners.<b> <span style=\"background-color: rgb(255, 255, 0);\">Hence, it is clear that when  the patient was taken to the hospital for the third time, the doctor also suspected and advised for cardiology evaluation. The very contention of the learned counsel for the respondent that she was not having cardiac problem, cannot be accepted.</span> </b>On perusal of the diagnosis, it was suspected chronic anemia and cardiology evaluation was also advised. When such being the case, the tablet Zyrova-C was continued. When petitioner No.2 advised Zyrova-C suspecting cardiac problem, the very contention of the respondent cannot be accepted.<br>16. ... The Revisional Court also failed to take note of the penal provisions and only formed an opinion that materials are sufficient to take cognizance of medical negligence against the petitioners.<b> <span style=\"background-color: rgb(255, 255, 0);\">In order to come to a conclusion of criminal rashness or criminal negligence, there must be material before the Court. In the absence of the material, the Revisional Court ought not to have directed the learned Magistrate to take the cognizance for criminal negligence.</span></b><br>17. This Court would like to refer to the judgment of the Apex Court in the case of Jacob Mathew vs State of Punjab and another reported in AIR 2005 SC 3180), wherein the Apex Court in detail discussed with regard to torts, negligence, essential components are duty, breach and resulting damage. It is also observed that what may be negligence in civil law may not necessarily be negligence in criminal law. It is held that for negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither  gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis of prosecution. Paragraph No.49 of the judgment reads as under:</h4><h4>20. Having perused the principles laid down in the judgment referred supra, this Court has to evaluate the material available on record whether it is a fit case to continue the criminal proceedings against petitioner No.2 herein. On perusal of the document out patient record, it is clear that the patient was taken to the hospital with history of throat irritation and weakness for the first time. For the second time, she was taken to the hospital for pain in the right shoulder and for the third time, she was taken to the hospital for shadows moving. This Court already considered the diagnosis made by petitioner No.2, who suspected and advised for cardiology evaluation and when the cardiac ailment is suspected, the very contention that Zyrova-C would be advised only for the heart ailment patient, cannot be a ground for criminal prosecution for medical negligence. It is also important to note that the documents do not disclose anything about the bleeding in the nose and mouth, as contended by the respondent’s counsel. The fact that the deceased was aged about 81 years is not in dispute and when the patient is more than 75 years of age, when the doctor advices to rule out blood loss in view of occult blood positive test earlier in the past and also for cardiology evaluation, under the circumstances, the criminal culpability cannot be attributed against petitioner No.2. It is not a case for criminal prosecution for the reason that prima facie there are no material before the Court that death was due to the medicine prescribed by petitioner No.2. Ex.C.2 is clear that cause of death is natural and she is aged about 81 years. The other reports of the Medical \r\nCouncil is also not in favour of the respondent. The main contention of the learned counsel for the respondent is that when the manufacturers themselves have advised, the said medicine ought not to have been advised for the person, who is not having stroke, chest pain and heart ailments and no second opinion is required.<br>21. The Apex Court in the judgment in the case of Jacob Mathew (supra) issued the guidelines for prosecuting of the doctors for offences of which criminal rashness or criminal negligence is an ingredient. It is further observed that a private compliant may not be entertained unless the complainant has produced prima facie evidence before the Court in a form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The Investigating Officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in Government service qualified in the branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam’s test laid down in (1957) 1 WLR 582, 586 to the facts collected in the investigation.<br>22. <span style=\"background-color: rgb(255, 255, 0);\"><b>Having perused the principles laid down in the judgment referred supra and considering the material on record, first of all there is no prima facie material before the Court that the death was caused due to wrong medication and no documents are produced before the Court for criminal prosecution that the prescription of the said tablet Zyrova-C itself leads to death. </b></span>It is also not in dispute that the patient  was treated as out patient. The patient went to the hospital for treatment i.e. throat irritation, weakness and shoulder pain and the doctor suspected cardiac problem and advised for cardiology evaluation since the occult blood was found. When such being the facts and circumstances, the Revisional Court has committed an error in reversing the finding of the Trial Court. Apart from that, in the complaint also no specific penal provision is invoked to prosecute petitioner No.2. The Revisional Court has also not discussed anything about which provision applies for continuing the criminal proceedings, except directing the learned Magistrate to take cognizance. .... <span style=\"background-color: rgb(255, 255, 0);\"><b>There must be a criminal culpability to proceed against the doctor who gave the treatment. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis of prosecution. Criminal prosecution is a serious matter. But in the case on hand, the doctor treated the patient, that too three months prior to the death as out patient and not as an in patient.</b></span><br>23. In view of the discussions made above, I pass the following:<br>ORDER<br>(i) The petition is allowed.<br>(ii) The impugned order dated 18.08.2020 passed in Crl.R.P.No.25021/2019 is set aside.<br>(iii)The order of the Trial Court dated 03.11.2018 passed in P.C.R.No.55291/2018 is hereby confirmed.<br><br><br></h4><div><br></div>', '35eb910b7a359bbedf7b3ae97c5600c1.jpg', 'd378a85d83ec3a84bed28e0c9ae30d37.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-02', 1, '', '', '2021-03-11 20:09:54', '2021-03-11 20:14:08'),
(564, 'VVRqjCkCocseG0gLmnDiGaC5w', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'CPC. Attachment before judgment is a drastic power which should NOT be exercised mechanically to convert unsecured debt into a secured debt. Prima facie case and the chance of suit being decreed are relevant. Karnataka High Court. 11 Feb 2021', '<h4>Ashish Krishnaswamy vs Money Focus Infrastructure Products Private Limited and others. </h4><h4>ComAp 33 of 2020 decided on 11 February 2021. </h4><h4>Chief Justice Abhay S. Oka and Justice Sachin Shankar Magadum. </h4><h4>Judgment Link:<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/370748/1/COMAP33-20-11-02-2021.pdf\" target=\"_blank\"> http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/370748/1/COMAP33-20-11-02-2021.pdf </a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs:</span> 2.<span style=\"white-space:pre\">	</span>This is an appeal under sub-section (1) of Section 13 of the Commercial Courts Act, 2015 read with clause (q) of Rule 1 of Order XLIII of the Code of Civil Procedure, 1908.<br>4. The suit is filed for recovery of a sum of Rs.69,37,968/- with interest at the rate of 24% per annum from the date of filing of the suit till realization. <br>6. An application for attachment before judgment was filed by the plaintiff, being I.A No.1. The application was allowed by the order dated 23rd October 2019. The  said  order  which grants attachment before judgment notes that the defendants are placed ex parte. An application was made by the second defendant (appellant) invoking sub-rule (4) of Rule 5 of Order XXXVIII of CPC, being I.A No.6. The prayer in the said application was for setting aside the said order of attachment dated 23rd October 2019. The said I.A was opposed by the plaintiff by filing a statement of objections. By the impugned order, the learned Trial Judge has dismissed the said I.A No.6 filed by the second defendant.<br>10. We have given careful consideration to the submissions. </h4><h4>11. Sub-rule (1) of Rule 5 of Order XXXVIII of  CPC  lays down the procedure for attachment of property.  By virtue  of  Act No.104 of 1976, sub-rule (4) of Rule 5 of CPC was substituted and now the substituted rule lays down that if an order of attachment is made without complying with the provisions of sub-rule (1), such attachment shall be void. Sub-rule (1) of Rule 5 of Order XXXVIII of  CPC lays down  that if the Court is satisfied that the defendant with the intent to obstruct or delay the execution of any decree that may be passed against him is about to dispose of the whole or any part of his property or is about the remove the whole or any part of his property from the local limits of the jurisdiction of the Court,  it may direct the defendant, within the time to be fixed by it, either to furnish security, in such sum as  may be specified  in the order to produce and place at the disposal of the Court, when required, the said property or the value of the same. Sub-rule (2) of Rule 5 requires the plaintiff to specify the property required to be attached and the estimated value thereof. In this case, admittedly, an order in accordance with sub-rule (1) of Rule 5 of Order XXXVIII of CPC was not passed by the Trial Court.<br>12. As far as the remedy of attachment before judgment under Rule 5 of Order XXXVIII of CPC is concerned, the law is fairly well settled. We are referring only to one decision of the Apex Court which reiterates the said law.  The said decision is  in the case Raman Tech & Process Engg Co and another vs Solanki Traders (2008) 2 SCC 302 Paragraphs 4 and 5 of the said decision are relevant which read thus:</h4><h4 style=\"margin-left: 25px;\"><i><b>“4. The object of supplemental proceedings (applications for arrest or attachment before judgment, grant of temporary injunctions and appointment of receivers) is to prevent the ends of justice being defeated. The object of Order 38 Rule 5 CPC in particular, is to prevent any  defendant from defeating the realisation of the decree that  may ultimately be passed in favour of the plaintiff, either by attempting to dispose of, or remove from the jurisdiction of the court, his movables. The scheme of Order 38 and the use of the words “to obstruct or delay the execution of any decree that may be passed against him” in Rule 5 make it clear that before exercising the power under the said Rule, the court should be satisfied that there is a reasonable chance of a decree being passed in the suit against the defendant. This would mean that  the  court  should  be  satisfied  the  plaintiff  has  a prima facie case. If the averments in the plaint and the documents produced in support of it, do not satisfy the court about the existence of a prima  facie case, the court will not go to the next stage of examining whether the interest of the  plaintiff should be protected by exercising power under Order 38 Rule 5 CPC. It is well-settled that merely having a just or valid claim or a prima facie case,  will not entitle the plaintiff to an order of attachment before judgment, unless he also establishes  that the defendant is attempting to remove or dispose of his assets with the intention of defeating the decree that may be passed. Equally well settled is the position that even where the defendant is removing or disposing his assets, an attachment before judgment will not be  issued, if the plaintiff is not  able to satisfy that he has a prima facie case.<br>5. The power under Order 38 Rule 5 CPC is drastic and extraordinary power. Such power  should not be exercised mechanically or merely for the asking. It Should be used sparingly and strictly  in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into   a secured debt. Any attempt by a plaintiff to utilize the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim  should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements  under  threat of attachment.”</b></i></h4><h4><b style=\"background-color: rgb(255, 255, 0);\">13.As noted earlier, the satisfaction required to be recorded as per sub-rule (1) of Rule 5 of Order XXXVIII of CPC  is that  the defendant with an  intent to obstruct or delay the execution  of any decree that may be passed against him is about to dispose of the whole or any part of his property.  Thus,  the Court must be satisfied that there is a reasonable chance of a decree being passed in the suit and that is how there is a legal requirement of the Court being satisfied about the existence of  a prima facie case.</b><br>14. In paragraph 5 of the aforesaid decision, the Apex Court has reiterated that the power under Rule 5 of Order XXXVIII of CPC is a drastic and extraordinary power which should not be exercised mechanically and merely for the asking. It should be used sparingly and strictly in accordance with Rule and the purpose of Rule 5 of Order XXXVIII of CPC is not to convert an unsecured debt into a secured debt. Further, it is held that it is well settled that merely having a just or valid claim or a prima facie case will not entitle the plaintiff to an order of attachment before judgment, unless the ingredients of sub-rule (1) of Rule   5 are established.<br></h4><h4>15. Coming back to the facts of the case, the order of attachment dated 23rd October 2019 was not preceded by any order passed in accordance with sub-rule (1) of Rule 5 of Order XXXVIII of CPC. The order merely refers to an affidavit of the plaintiff stating that the defendants are trying to sell the schedule properties. There is no finding recorded about the existence of a prima facie case or a reasonable possibility of a decree being passed in favour of the plaintiff against  the  second defendant and for that matter even against the first defendant. There is no satisfaction recorded that the second defendant with an intent to obstruct or delay the execution  of the decree which may be passed against him is about to  dispose of the whole or part of his property. Thus, the  said  order of attachment which has been made without complying with the provisions of sub-rule (1) of Rule 5 of the Order  XXXVIII will be rendered void.<br>19. For the foregoing reasons, there is no prima facie case. Going by the averments made in the plaint, it is impossible to come to a conclusion that there is a reasonable possibility of a money decree being passed against the second defendant. Therefore, the second impugned order dated 30th June 2020 cannot be sustained and the application, being I.A No.6 will  have to be allowed by holding that the attachment is void apart from the fact that even otherwise, it is illegal.<br>21. Accordingly, we pass the following order:<br>(i) The impugned order dated 30th June 2020 is  hereby quashed and set aside. I.A No.6 in Commercial O.S No.225 of 2019 is hereby allowed and the order of attachment before  judgment  dated 23rd October 2019 is hereby set aside;<br>(ii) We make it clear that the  observations  and findings recorded in the judgment are only for the limited purpose of considering the controversy regarding validity of the order of attachment before judgment;<br>(iii) The appeal is allowed on the above terms;<br>(iv) The pending interlocutory application does not survive for consideration and stands disposed of.<br><br><br><br></h4><div><br></div>', '9200039c3539a98531995689abda37df.PNG', 'b4fb8ac27eef97d5bffb41eb6b4b0f89.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-11', 1, '', '', '2021-03-12 00:59:10', '2021-03-12 01:00:41');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(565, 'In1ajZiP7Bm0vOzTw6nZlDfJ1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Industrial Disputes Act 1947. Section 17B. Payment of full wages to workman pending proceedings in higher Courts is not absolute especially when relation of employer and employee is in serious dispute. Karnataka High Court.', '<h4>The Karnataka State Building and other Construction Workers\' Welfare Board Kalyana Suraksha Bhavana vs Mohan Kumar and others. </h4><h4>Writ Petition 2617 of 2019 and connected matters decided on 11 February 2021.&nbsp;</h4><h4>Justice M. Nagaprasanna&nbsp;</h4><h4>In all these petitions, I.A.No.1/2019 are filed claiming wages under Section 17B of the Industrial Disputes Act, 1947. </h4><h4>7. I have given my anxious consideration to the rival submissions of learned counsel appearing for the parties and the issue that arises for my consideration in this application is <b style=\"background-color: rgb(255, 255, 0);\">‘Whether in the facts and circumstances&nbsp; of the case, the application under Section 17B of the said Act will have to be allowed by directing the wages to be paid to the workmen or otherwise’?<br></b><br></h4><h4>9. Section 17B of the said Act emphasizes on payment of wages to any workmen where the employer prefers any proceedings against such award in the High Court or the Supreme Court, the employer shall be liable to pay wages under Section 17B of the Act. Interpreting this Section, as to whether it would be obligatory on the part of an employer to pay wages under Section 17B of the said Act notwithstanding and in ignorance of the fact situation is dealt with by plethora of judgments rendered by various judicial fora.<br><br></h4><h4>15.On an analysis of the afore-extracted plethora of judgments rendered by various High Courts, the unmistakable conclusion that will have to be drawn is payment of wages under Section 17B of the said Act to employees where the employer files a writ petition against an order of reinstatement would not be absolute.<br><br></h4><h4>16. Learned counsel appearing for the respondent places reliance on the judgments of various High Courts wherein wages under Section 17B of the Act is held to be axiomatic. The Division Bench of this Court in W.A.No.2536/2005 (L-RES) dated 20.07.2005, directed that interlocutory application for payment of wages under Section 17B of the said Act will have to be considered at the outset before considering the merits of the matter.&nbsp;<br><br></h4><h4>15. The provision in Section 17B is, therefore, intended to be invoked in the course of the proceedings in the High Court and the High Court is entitled to make an order as contemplated by S. 17B in the proceedings taken by the employer challenging the order of the Labour Court in the High Court. It is thus clearly permissible for the High Court to make an order requiring&nbsp; the employer to comply with the provisions of Section 17B of the Act.&nbsp;<br><br></h4><h4>21. The judgments relied on by learned counsel appearing for workmen were all cases where 17B wages were directed to be paid as they were employed by the State or private employers. The issue in the case on hand is whether the workmen were employees of the Board at all, which has to be decided at the time when the final disposal of the case would happen as on a cursory perusal of the award and the order of termination would disclose that the employment is made by 2nd respondent – private employer and the termination order by the private employer. Therefore, the&nbsp; issue whether the workmen are the employees of the Board i.e., the employer will have to be decided. Without a decision on whether the workmen are the employees of the Board as ostensibly the workmen were employed through 2nd and 3rd respondents – man power agencies, a direction to pay 17B wages, in my considered view in the facts of the case, cannot be granted.<br><br></h4><h4>22. As elaborated by the judgments relied on by&nbsp; learned counsel appearing for the petitioner - Board, merely because 17B is in the statute book and power under Article 226 of the Constitution to direct grant of 17B wages can be exercised, it need not be exercised. Therefore, I find no good ground to direct payment of wages under Section 17B of the said Act to these workmen in the peculiar facts and circumstances of the case. However, it cannot be construed by any employer that payment of wages under Section 17B of the said Act, is always subject to objection of the kind that is noticed hereinabove, it is only subject to whether&nbsp; the employee or workmen is in gainful employment or otherwise. In the peculiar facts of the case and for the reasons aforesaid, the applications seeking&nbsp; wages&nbsp; under Section 17B of the Act is turned down. The applications are accordingly dismissed.</h4>', '89689c439355dc8ed6a4377ad338a94d.jpeg', '8c72db61640a295b5298f811b1109568.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-18', 1, '', '', '2021-03-12 01:27:54', '2023-01-18 13:35:22'),
(2577, 'cxScGAAjYuRJ9J4La5kIUXT92', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\"Remove encroachments and provide burial grounds to all the villages and towns\". Karnataka High Court', '<p>CCC NO. 343/2020 Connected Cases: WP NO. 15165/2018\r\nIN THE HIGH COURT OF KARNATAKA AT BENGALURU\r\n[MOHAMMED IKBAL VS. SRI. MAHESHWAR RAO AND \r\nANOTHER]\r\nBVJ & KSHJ:\r\n10.01.2023\r\n(VIDEO CONFERENCING / PHYSICAL HEARING)\r\nORDER\r\nIn pursuance of the order passed by this Court dated \r\n18.10.2022 directing the responsible officer not below the rank \r\nof the Principal Secretary to file affidavit with regard to the \r\ndetails of RTCs, removal of encroachments and providing of \r\nburial grounds to all the villages and towns, today \r\n(10/01/2023), Sri. N. Jayaram, Secretary, Department of \r\nRevenue, M.S. Building, Bengaluru filed affidavit dated \r\n09.01.2023 and specifically stated at paragraph Nos.3 to 7 as \r\nunder:\r\n“3. I most respectfully submit that for the sake of \r\nbrevity as per the reports of the Deputy \r\nCommissioners a detailed chart depicting the status \r\nreport throughout Karnataka is produced along with \r\nthis affidavit at Annexure-R1.\r\n4. I most respectfully submit that as per the \r\nreports of the Deputy Commissioners the total \r\n- 2 -\r\nCCC NO. 343/2020 Connected Cases: WP NO. 15165/2018\r\nnumber of villages in the State of Karnataka is \r\n29,616 villages. Out of the said 29,616 villages \r\n1,394 villages are treated as Becharak villages i.e. \r\nvillages without any habitation. As such the State \r\nhas to provide burial grounds to 28,222 villages.\r\n5. It is most respectfully submitted that as per \r\nthe reports of the Deputy Commissioners out of the \r\n28,222 villages, the state has provided for burial \r\ngrounds to 27,903 villages. As on today, the State \r\nhas to provide burial grounds to 319 villages. As \r\nsuch the State has complied in providing burial \r\ngrounds to an extent of 98.87% in the State of \r\nKarnataka.\r\n6. It is most respectfully submit that as per the \r\nreports of the Deputy Commissioners the State is in \r\nthe process of evicting encroachments in 56 \r\nvillages. Apart from the said 56 villages there are \r\nno encroachments of burial grounds in any of the \r\nother villages in the State of Karnataka. Direction is \r\ngiven to all the Deputy Commissioners to evict the \r\nencroachment vide letter D.0. letter dated \r\n24.11.2022 Annexure-R2.\r\n7. It is most respectfully submit that the records \r\nreceived from all Deputy Commissioners regarding \r\nhanding over the graveyards to local bodies is \r\nplaced before the Hon’ble Court except Raichur \r\nDistrict.”\r\n- 3 -\r\nCCC NO. 343/2020 Connected Cases: WP NO. 15165/2018\r\nOn perusal of the affidavit, it is seen at paragraph No.8, \r\naccused is seeking for another 30 days to produce all the \r\ndocuments in respect of providing of burial ground along with a \r\ncomprehensive report.\r\nCompliance affidavit filed by the accused is placed on \r\nrecord. \r\nAccording to Sri. Dhyan Chinnappa, learned Additional \r\nAdvocate General, 98% of the order has been complied and \r\nalmost in all the villages in the State, burial ground has been \r\nprovided and sincere efforts have been made to remove the \r\nencroachment of burial ground by the responsible officer. \r\nSaid submission is placed on record. \r\nIt is seen from the affidavit filed by the Secretary to \r\nRevenue Department that out of 29,616 villages in the State, \r\n1394 villages are treated as Becharak villages without any \r\nhabitation. As such, the State has to provide burial grounds to \r\n28,222 villages. According to the report of the Deputy \r\nCommissioners, out of 28,222 villages, the State has already \r\nprovided burial grounds to 27,903 villages and only 319 \r\nvillages are left for providing burial grounds as on the date of \r\nthe affidavit and thereby, the State has complied with the \r\n- 4 -\r\nCCC NO. 343/2020 Connected Cases: WP NO. 15165/2018\r\norder of providing burial grounds to an extent of 98.87% in the \r\nState of Karnataka. It is further stated in the affidavit that as \r\nper the reports of the Deputy Commissioners, the process of \r\nevicting encroachments is going on in 56 villages and there are \r\nno encroachments of burial grounds in any of the villages in \r\nthe State of Karnataka and the Deputy Commissioners have \r\nalready handed over the graveyards to the local bodies in all \r\nDistricts except Raichur District.\r\nIn view of the above, in order to ascertain the \r\ncorrectness of the affidavit filed by the Principal Secretary, \r\nRevenue Department with regard to providing burial grounds \r\nto all the villages in the State of Karnataka, it is necessary to \r\nget the reports from all the Taluk Legal Services Committees \r\nand District Legal Services Authority in the State in the interest \r\nof access to justice for all in implementation of the order \r\npassed by the Co-ordinate Bench of this Court.\r\nThe Member Secretary, Karnataka Legal Services \r\nAuthority is directed to get the reports from all the Taluk Legal \r\nServices Committees and District Legal Services Authorities in \r\nthe State of Karnataka as to whether any village is left without \r\nany burial ground or there is any encroachment of burial \r\n- 5 -\r\nCCC NO. 343/2020 Connected Cases: WP NO. 15165/2018\r\nground in any of the villages in the entire State and the same \r\nshall be furnished on or before 31.1.2023.\r\nA copy of this order shall be furnished to the Member \r\nSecretary, Karnataka State Legal Services Authority forthwith.\r\nThree weeks time is granted to the accused to file \r\ncomprehensive affidavit.\r\nList these matters on 31.01.2023.\r\nSd/-\r\nJUDGE<br></p>', '008223cc35ac3677f5c616f22d423c8e.jpeg', '9e794db2a61edb1440c16da625265b00.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-19', 1, '', '', '2023-01-18 17:22:38', '2023-01-19 05:30:42'),
(566, 'cD2k2NbgucMItXCjtXg7UY6Ya', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Interpretation of Statutes. If plain meaning in a provision of law or statute gives rise to absurdity the same shall be avoided and purposive interpretation to be preferred. Karnataka High Court. 23 February 2021. ', '<h4><span style=\"background-color: rgb(255, 255, 0);\">NOTE:</span> In this case, the Hon\'ble Court has adopted \"Purposive Interpretation\". The purposive approach or purposive interpretation, is an approach to statutory and constitutional interpretation under which common law courts interpret an enactment within the context of the law\'s purpose. This interpretation is byproduct of mischief rule. It intends to replace the mischief rule.&nbsp;</h4><h4>The Amanath Co-Operative Bank Ltd vs The Joint Registrar of Co-Operative Societies and another. </h4><h4>Writ Petition 40979 of 2018 decided on 23 February 2021. </h4><h4>Judgment Link:<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/370935/1/WP40979-18-23-02-2021.pdf\" target=\"_blank\">&nbsp;http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/370935/1/WP40979-18-23-02-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: This writ petition raises a peculiar question as to whether the requirement of a pre-deposit in terms of Section 105(2) of the Karnataka Co-operative Societies Act, 1959, would compel a co-operative Bank to deposit 25% of the amount due in terms of the order, decision or award impugned.</h4><h4>2. A brief background may be necessary to consider the issue raised. The second respondent had availed certain loan facilities from the petitioner-Bank and various outstanding amounts were due and payable, according to the petitioner- Bank. When the second respondent defaulted in making the payments, attempts were made to settle the matter under One Time Settlement scheme. However, it was contended on behalf of the second respondent that it had indeed paid in excess of what was required to be paid to the petitioner-Bank. It was contended that the excess amount amounting to Rs.11.82 lakhs which was paid by the second respondent had been adjusted towards the loan account of its sister concerned M/s.Softline Software.<br>3. When the petitioner-Bank raised a dispute before the Joint Registrar of Co-operative Societies, the authority passed an order on 08.03.2016 holding that the second respondent had in fact paid more than what was due to the petitioner-Bank and therefore, directed the petitioner-Bank to refund a sum of Rs.11.82 lakhs to the second respondent. Being aggrieved, the petitioner-Bank approached the Karnataka Appellate Tribunal. As a preliminary objection, the second respondent herein filed an application seeking a direction at the hands of the Tribunal to the petitioner-Bank to deposit 25% of the amount, in terms of Section 105(2) of the Act. The petitioner-Bank filed its objection to the Interlocutory application and thereafter arguments were heard on the preliminary objection raised by the second respondent herein. The Tribunal proceeded to hold that it was mandatory on the part of the appellant before the Tribunal to deposit 25% in terms of Section 105(2) of the Act and therefore, directed the petitioner-Bank to comply with the provisions of Section 105(2) of the Act, in terms of the award passed by the Joint Registrar of Co-operative Societies.<br></h4><h4>8. The golden rule of interpretation of a provision of law or a statute is to give the words their plain meaning and unless the plain meaning would give rise to absurdity, any other meaning to the plain words should not be entertained. <b style=\"background-color: rgb(255, 255, 0);\">On a plain reading of Section 105(2) of the Act, it is clear that it would only mean that 25% of the amount due in terms of the order, decision or award, is required to be made with the “concerned society” and unless proof is produced before the Tribunal to show that the appeal is accompanied by a satisfactory proof for having deposited with the “concerned society” 25% of the amount, the appeal will not be entertained. </b>The provision also provides that after the disposal of the appeal, the amount so deposited shall be adjusted towards the amount payable by the appellant and in case no amount is required to be paid by the appellant, the amount so deposited shall be refunded to him by the “Society”. Therefore, there cannot be two views that the provision places a mandatory duty on the appellant who is the borrower to make a deposit of 25% with the “concerned Society”.<b style=\"background-color: rgb(255, 255, 0);\"> If the words are given its plain meaning, then the petitioner-Bank is required to deposit 25% of the award amount with itself and then make a submission before the Tribunal that it is satisfied of having deposited 25% of the award amount. Obviously, the intention of the legislature would not be that the Co-operative Society or Bank which would be an appellant before the Tribunal is required to make a deposit with itself. On the other hand, the submission of the learned Counsel for the second respondent that the petitioner-Bank should be directed to deposit the said amount with the Tribunal also cannot be accepted. There is no such provision which would require the appellant to make the deposit with the Tribunal.</b><br>9. In the provision at two places, the word “Society” is specifically used. The requirement of the provision is to deposit the amount with the “concerned Society”. This provision cannot be read in a manner to direct the petitioner-Bank to deposit the said sum with the Tribunal.&nbsp;<br>10. In the considered opinion of this Court, the intention of the Legislature is to protect the interest of the Co-operative Society/Bank. The provision pre-supposes that the appellant before the Tribunal would be the borrower himself and not the Society/Bank. Nevertheless, in order to protect the interest of the second respondent, a direction could be given to the petitioner-Bank to file an affidavit undertaking to pay the award amount or any other amount as decided by the Tribunal, while disposing of the appeal. Needless to observe that the affidavit of undertaking shall not foreclose the right of the petitioner-bank to challenge the order of the Tribunal.<br></h4>', '626712263f8f8fb644d9870491c1d250.jpg', 'd10b7967d6d7b76b0ce021685515c02d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-23', 1, '', '', '2021-03-12 01:57:38', '2021-03-12 01:59:38'),
(567, 'XRJ4QSZb8oQilHMxApBubXEq8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Sections 451 and 457. Release of seized vehicle illegally transporting minor mineral is governed by a special provision. Furnishing security for double the value of vehicle is mandatory. Karnataka High Court.  25 February 2021', '<h4>State of Karnataka vs Vasudeva K.S. </h4><h4>Criminal Petition 171 of 2021 decided on 25 February 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/370755/1/CRLP171-21-25-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/370755/1/CRLP171-21-25-02-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs:</span> This petition is filed under Section 482 of Cr.P.C. praying this Court to set aside the order dated 11.05.2020 passed by the Principal District and Sessions Judge, Udupi passed in Crl.R.P.No.38/2020, thereby confirming the order dated 27.06.2019 passed in P.C.No.215/2019 passed by II Additional Civil Judge and JMFC, Karkala and also made the prayer to dismiss the application filed by the respondent under Sections 451 and 457 of Cr.P.C. seeking release of the vehicle bearing KA-20-D-0230 to pass such other order or orders as this Court deems fit.<br>3. The grounds urged in the petition is that the impugned orders passed by both the Courts are against the Rule 43 sub rules 7 and 8 of the KMMC Rules. It is contended that  the sub rules of Rule 43 of KMMC Rules has been enacted keeping in mind the gravity of the offence and also to secure the ecological balance. The intention of the legislature is clear in this aspect. It is enacted to regulate the offences by imposing the double of the value of the vehicle as Bank Guarantee, which is a different procedure. In view of the order passed by both the Courts the very legislative intent is defeated. Hence, both the orders are liable to the set aside.<br>7. Having heard the learned counsel for the petitioner and also the learned counsel appearing for the respondent, admittedly both the orders are not in inconsonance with the Rule 43 sub rule 8 of KMMC Rules. It is also important to note that a special provision is made under the enactment to protect the ecological balance and stringent law is brought to prevent the illegal transportation of mines and minerals. The Court has to look into the very object and legislative wisdom in bringing the special enactment. The Rule 43 sub rule 8 of KMMC Rules is very clear that no release of the vehicle which shall however not include the minor mineral so seized shall be made unless there is an execution by the owner thereof, of security in the form of a renewable Bank Guarantee, of an amount equal to double the value of such vehicle, before the Competent Court having jurisdiction to try the offence on account of which the seizure has been made.<br>8. It is also important to note that the vehicle is seized on credible information with regard to the transportation of mines and minerals and law also provides that a private complaint has to be filed before the jurisdictional Courts and under such circumstances the question of registering the case immediately does not arise since there is a bar under Section 22 of the Mines and Minerals (Development and Regulation) Act, 1957 (for short ‘the MMRD Act’). When the offence is invoked under the MMRD Act and KMMC Rules, 1994, the reasoning given by the learned Magistrate is not correct and also failed to invoke Rule 43 sub rule 8 of KMMC Rules. In the order, nothing is discussed with regard to the special enactment. No doubt, the Revisional Court in the order discussed in detail with regard to the Rule 43 sub rules 7 and 8 of KMMC Rules. The Revisional Court also while dismissing the Revision Petition failed to take note of the legislative wisdom in bringing the special enactment. The enactment is specific with regard to protecting the ecological balance and the provision is also made to that effect. It is also important to note that the mines and minerals is transported without the permit or license. When the special enactment is brought particularly, under Rule 43 sub rule 8 of KMMC Rules, if any order is passed against the statute, it amounts to an stare decisis. Hence, the very contention of the respondent counsel cannot be accepted. Both the Courts have failed to take note of bringing the special enactment to protect the ecology and also to prevent the illegal transportation of mines and minerals. The very interpretation given by the Revisional Court is against the statute. The statute is very clear that while releasing the vehicle a condition has to be imposed to give a renewable Bank Guarantee, double the value of the vehicle. The Courts have failed to consider Rule 43 sub rule 8 of KMMC Rules in letter and spirit. Hence, orders impugned are liable to be set aside.<br>9. However taking note of the factual aspects of the case, the application filed by the respondent herein under Section 457 of Cr.P.C. is allowed subject to furnishing of the renewable Bank guarantee double the value of the vehicle involved. If the vehicle is already taken to the custody of respondent No.2, respondent No.2 is directed to furnish the renewable Bank Guarantee double the value of the vehicle within four weeks’ from today. If the petitioner fails to furnish the same, the I.O. is directed to take the custody of the vehicle and made the same as PF to the particular Court.<br>10. With the above observations, the petition is allowed.<br><br></h4>', '839e944cd64336a8f889596dc8b878f9.jpg', '31ba72958617af74be71f952429ce8b5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-25', 1, '', '', '2021-03-12 03:39:37', '2021-03-12 03:41:37'),
(568, 'tMd4cLS5mIjj1E5GxUr8bVYuz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 202. Accused outside Court jurisdiction. Holding of inquiry and examination of witnesses is mandatory before issuing process so that false cases are filtered and rejected. Karnataka High Court. 2 March 2021', '<h4>Prateek Jaswant and another vs The State of Karnataka and another. </h4><h4>Criminal Petition 1097 of 2020 decided on 2 March 2021.</h4><h4>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/370779/1/CRLP1097-20-02-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/370779/1/CRLP1097-20-02-03-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:&nbsp;This petition is filed under Section 482 of Cr.P.C. praying this Court to set aside the impugned order dated 22.04.2019 passed by the IV Additional Chief Metropolitan Magistrate, Bengaluru and also the proceedings in C.C.No.16400/2019 and consequently quashing the criminal complaint registered as PCR No.11811/20005 and pass such other order as deems fit in the circumstances of the case.&nbsp;<br><span style=\"background-color: rgb(255, 255, 0);\">Contention 1 is on facts of the case</span>. 32.&nbsp;<span style=\"font-size: 1.3125rem;\">The second contention of the learned counsel for the petitioners is that learned Magistrate has not complied Section&nbsp;</span>202 of Cr.P.C. In support of the said contention, the learned counsel relied upon the principles laid down in Abhijit Pawar’s case, wherein the Apex Court in para No.23 has discussed with regard to conducting of inquiry and so also discussed as to whether any specific mode or manner of inquiry is provided under Section 202 of the Code in para Nos.25 and 26.</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">33. On perusal of the case on hand, the accused persons are not staying within the jurisdiction of this Court and hence, the Court has to examine whether there is any substantial material to proceed against the accused persons, who is residing outside the jurisdiction by holding an inquiry. The amended provision under Section 202 of Cr.P.C. contemplates with regard to the word “shall” in case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an enquiry or investigation before issuing the process.&nbsp; It is observed in the judgment that there is a vital purpose or object behind this amendment, namely, to ward off false complaints against such persons residing at far-off places in order to save them from unnecessary harassment. Thus, in those cases where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an inquiry or investigation before issuing the process, so that false complaints are filtered and rejected.</b><br>34.<span style=\"white-space:pre\">	</span>Now the question arises before this Court is what are the requirements for conducting an inquiry or directing investigation before issuing the process is, therefore, not an empty formality. The Supreme Court in Vijay Dhanuka v. Najima Mamtaj reported in (2014) 14 SCC 638 held with regard to what Kind of “enquiry” is needed under this provision. In the said judgment, the Apex Court has discussed that no specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry as envisaged under Section 202 of the Code, the witnesses are examined, whereas under Section 200 of the Code, examination of the complainant is only necessary if the option of examining the witnesses present, if any. This exercise by the Magistrate, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of the Code.<br>35. It is further observed that the amended provision casts an obligation on the Magistrate to apply his mind carefully and satisfy himself that the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would prima facie constitute the offence for which the complaint is filed. The Apex Court in the relevant paragraph Nos.23, 25 and 26 also discussed with regard to Section 2(g) of Cr.P.C. “Inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court. It is also observed with regard to both the scope of Sections 200 and 202 of Cr.P.C. and the Magistrate has to look into the material available on record as to whether the material is sufficient for summoning an accused.&nbsp;<br>36. It is important to note that when the Apex Court has discussed regarding inquiry under Section 2(g) of Cr.P.C. and also discussed with regard to Sections 200 and 202 of Cr.P.C.,<b style=\"background-color: rgb(255, 255, 0);\"> it is crystal clear that the learned Magistrate has to examine the complainant, if it is a case under Section 200 of Cr.P.C., if it is an inquiry as envisaged under Section 202 of Cr.P.C., the witnesses have to be examined. </b>In the case on hand except examining the complaint, none of the witnesses are examined. The very judgment of the Apex Court in Abhijit Pawar’s case is clearly held that learned Magistrate ought to have recorded the statements of the witnesses and the same has not been done. Based on the sworn statement of complainant, proceeded to pass an order. The Apex Court has made it clear that in the cases where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an inquiry or investigation before issuing the process, so that false complaints are filtered and rejected. Hence, learned Magistrate ought to have examined other witnesses also in order to come to a right conclusion and the same has not been done in the case on hand.<br>39.<span style=\"white-space:pre\">	</span>In view of the discussion made above, I pass the following:-<br>ORDER<br>(i) The petition is hereby allowed.<br>(ii)The impugned order dated 22.04.2019 passed by the IV Additional Chief Metropolitan Magistrate is hereby set aside. Learned Magistrate is directed to proceed in compliance with the direction given by this Court in Crl.P.No.2704/2010 and also adhere to the principles laid down by the Hon\'ble Apex Court which have been discussed supra and also the judgment of this Court and then take a decision to proceed against the petitioners in accordance with law.<br><br><br>&nbsp;<br><br></h4>', 'dd8431c633e52dbf0316b5a9c1d9d641.jpg', '3bd4ba8db2eaffc3099fb7b8f0903de6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-02', 1, '', '', '2021-03-12 04:34:25', '2021-03-12 04:34:25'),
(569, '2wOvUeNrYfos2oAxnuA0j1tnI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'IPC. Sections 406 and 420. Supply of substandard goods is a civil dispute unless dishonest intention on the part of the supplier is shown. It does not amount to fraud or criminal breach of trust. Criminal proceedings quashed. Karnataka High Court. 6:2:21', '<h4>R.C. Sodani and others vs The State and another. </h4><h4>Criminal Petition 2876 of 2016 decided 6 February 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/370821/1/CRLP2876-16-06-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/370821/1/CRLP2876-16-06-02-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 3. This petition is filed by the petitioners seeking to quash the FIR in Cr.No.86/2016 of Udupi Town Police Station, Udupi pending on the file of Principal Civil Judge and JMFC, Udupi for the offences punishable under sections 406, 420 read with Section 34 of IPC.<br>4......... Pursuant to the letter dated 26.11.2015 by the Naidu constructions, the Company supplied totally 1124 metric Tons of OPC cement during the period from 27.11.2015 to 10.02.2016. This being the state of affairs, one Dr.Umesh Prabhu who is the second respondent herein claiming to be the Chairman and Managing Director of Gokul Super Specialty Hospital, Vasundhara Nagar, Malpe, Udupi filed a complaint before the Udupi Town Police Station on 18.03.2016, alleging that the petitioners have supplied substandard quality cement for the constructions of their hospital at Udupi and thereby, the petitioners cheated the complainant. Based upon the compliant, the Udupi Town police have registered a FIR against the petitioners in Cr.No.86/2016 for the offences punishable under sections 406, 420 read with Section 34 of IPC.</h4><h4>7. Learned senior counsel in support of his arguments has taken me through the ingredients of Section 34 of the Bureau of Indian Standards Act, 1986, which reads thus:</h4><h4 style=\"margin-left: 25px;\"><i>“34. Cognizance of offences by courts.- (1) No court shall take cognizance of any offence punishable under this Act, save on a compliant made by or under the authority of the Government or Bureau or by any officer empowered in this behalf by the Government or Bureau or by any officer empowered in this behalf by the Government or the Bureau, or any consumer or any association recognized in this behalf by the Central or State Government.<br>(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class specially empowered in this behalf shall try any offence punishable under this Act.\"</i><br></h4><h4>8. Learned senior counsel has also referred Section 25 in chapter seven of the Bureau of Indian Standards Act, 1986 which reads thus:<br></h4><h4 style=\"margin-left: 25px;\"><i>25. Inspecting officer.-(1) The Bureau may appoint as many inspecting officers as may be necessary for the purpose of inspecting whether any article or process in relation to which the standard mark has been used conforms to the Indian Standard or whether the Standard Mark has been properly used in relation to any article or process with or without license, and for the purpose of performing such other functions as may be assigned to them. Section 14 of the said Act read as follows:<br>14. Compulsory use of Standard Mark of articles and processes to certain scheduled industries/-If the central government, after consulting the Bureau, is of the opinion that it is necessary or expedient so to do, in the public interest, it may, by order published in the official Gazette.</i></h4><h4>17. It in this background, it is relevant to refer certain materials placed before this Court by the counsel for the petitioner. The criminal prosecution in terms of recording an FIR has arisen only on filing of a written complaint by the second respondent before the Udupi Town Police Station and based upon his complaint, the case in Crime No.86 of 2016 came to be registered. The Station House Officer of the Udupi Town Police Station have been dwelling upon Section 154 of Cr.P.C. and recording of an FIR on the basis of a complaint either in oral or in writing, the complaint discloses that it is fit to register the case to proceed further for taking cognizance under the specific provisions of the Code of Criminal Procedure or even under the Bureau of Indian Standards Act, 1986 relating to Section 34 of the said Act. It is relevant to refer that the nature of issues emerged in between the complainant and the accused are civil in nature. Despite the complainant who has chosen to file the written complaint against the accused before the Udupi Town Police Station and based upon his complaint, case in Cr.No.86 of 2016 came to be registered. Dr.Umesh Prabhu, Chairman and Managing Director of the Gokul Super Speciality Hospital Private Limited in his complaint has specifically stated that due to poor quality of cement supplied by a reputed company, they have suffered huge loss and hardship, the said loss is nearly Rs.40 Lakhs and has also specifically stated that the manufactures of Bagalkot cements have cheated them by supplying inferior quality cements. They have also committed criminal breach of Trust by deceiving them and have caused loss, it is their allegation, but it appears as civil in nature.<br><span style=\"background-color: rgb(255, 255, 0);\">18. At this stage, it is relevant to refer the scope of Section 406 of the Indian Penal Code which states punishment for criminal breach of trust. – Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. But in the instant case, that the ingredients are even though are absent to constitute the offence, the Udupi Town Police Station have registered a case merely because filing of a complaint against the accused as there is no direct involvement of this accused in commission of an offence in respect of criminal breach of trust as per Section 420 of I.P.C., 1860 by cheating and dishonestly inducing delivery of property. But there has to be distinguished intention  from the very beginning in order to hold the accused guilty of commission of an offence even though the allegations made in the complaint are accepted to be true, the accused cannot be said to have been committed any offence of cheating, since the accused who were not at all in picture in respect of the allegations made against them. Though the complainant alleges to have spent huge money, unless the ingredients are constituted for the offence under Section 420 of I.P.C.,<span style=\"white-space:pre\">	</span>it does not arise for recording FIR<span style=\"white-space:pre\">	</span>as contemplated under Section 154 of Cr.P.C. by registered case. The dispute emerged between the petitioners and the second respondent are civil in nature. </span>Though the remedies are available in order to initiate other proceedings, the complainant has chosen to initiate criminal prosecution by filing written complaint in his letter head by approaching Udupi Town Police Station and consequently, registered Cr.No.86 of 2016. At this stage, it is relevant to refer the judgment rendered by the Hon’ble Supreme Court reported in AIR 2019 SC 210 (Anand  Kumar  Mohatta  and  another Vs. State (Govt. of  NCT  of  Delhi)  Department  of  Home  and another wherein it is held that:<br>“Quashing of FIR – Inherent powers – Nothing in words of Section 482 restricting exercise of power of Court to prevent abuse of process of Court or miscarriage of justice only to stage of FIR – High Court can exercise jurisdiction under Section 482 even if charge-sheet is filed during pendency of application”. In the judgment referred supra, the Hon’ble Supreme Court has also referred judgments reported in<br>i)<span style=\"white-space:pre\">	</span>AIR 1977 SC 1489 : 1977 Cri LJ 1125.<br>ii)<span style=\"white-space:pre\">	</span>AIR 1992 SC 604 : 1992 AIR SCW 237<br>iii)<span style=\"white-space:pre\">	</span>AIR 2000 SC 754 : 2000 AIR SCW 296; iv)<span style=\"white-space:pre\">	</span>AIR 2006 SC 2780 : 2006 AIR SCW 3830 v)<span style=\"white-space:pre\">	</span>2008 AIR SCW 6459;<br>vi)<span style=\"white-space:pre\">	</span>AIR 2014 SC 1106; 2013 AIR SCW 6062<br>vii)<span style=\"white-space:pre\">	</span>AIR SCW 6062;<br>viii)<span style=\"white-space:pre\">	</span>(2011) 7 SCC 59;<br>The Hon’ble Supreme Court in its judgment referred supra has also referred the case of Indian Oil Corporation Vs. NEPC India Ltd. and others reported in 2006(6) SCC 736 : AIR 2006 SC 2780 wherein it has observed that:<br>“Any efforts to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discourage….”<br>ORDER<br>The petition is allowed. Consequently the FIR in Crime No.86 of 2016 dated 18.03.2016 pending before the court of 1st Additional Civil Judge (Jr.Dn.), and JMFC Court, Udupi District, Udupi for the alleged offences, is hereby quashed.<br><br><br></h4><div><br></div>', '8e9b4bb23801afbb8104dff9d45e0749.jpg', '19227bb11a2e3050e9544fcc93ea1fea.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-06', 1, '', '', '2021-03-12 20:26:14', '2021-03-12 20:30:53'),
(570, 'k9KgiuRLk69mv62S389rvi7Es', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Educational Institutions. Property tax exemption would also apply to persons who have leased the property for educational purposes. Karnataka High Court.', '<h4>Navodaya Education Trust vs The Commissioner City Municipal Council Raichur. Writ Petition 103010 of 2013 decided on 15 January 2021.</h4><h4><span style=\"-webkit-text-size-adjust: 100%;\">Justice Suraj Govindaraj.&nbsp;</span></h4><h4><span style=\"font-size: calc(1.275rem + 0.3vw); font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">1.The petitioner is before this Court seeking certiorari to quash the notice dated 17.08.2013 at Annexure-D issued by the respondent calling upon the petitioner to make payment of property tax in respect of buildings in the premise of the college run by the petitioner used for the purpose of canteen, petrol bunk as also residential quarters of the staff of the college.&nbsp;</span></h4><h4>6.The points that arise for consideration of this Court are:&nbsp;</h4><h4 style=\"margin-left: 25px;\"><i>6.1.Whether exemption under Section 94 of the&nbsp;Karnataka M<span style=\"letter-spacing:-.1pt\">u</span><span style=\"letter-spacing:.1pt\">n</span><span style=\"letter-spacing:-.1pt\">i</span><span style=\"letter-spacing:-.15pt\">c</span><span style=\"letter-spacing:.05pt\">i</span>p<span style=\"letter-spacing:.05pt\">al</span><span style=\"letter-spacing:-.1pt\">i</span>t<span style=\"letter-spacing:-.2pt\">i</span><span style=\"letter-spacing:.1pt\">e</span>s <span style=\"letter-spacing:-1.65pt\">&nbsp;</span><span style=\"letter-spacing:.1pt;\r\nmso-font-width:99%\">A</span><span style=\"letter-spacing:-.05pt;mso-font-width:\r\n99%\">c</span>t, <span style=\"letter-spacing:\r\n-1.45pt\">&nbsp;</span><span style=\"letter-spacing:\r\n-.05pt;mso-font-width:99%\">1</span><span style=\"letter-spacing:-.15pt;\r\nmso-font-width:99%\">9</span><span style=\"letter-spacing:-.05pt;mso-font-width:\r\n99%\">64&nbsp;</span>would only apply to land and building used specifically for educational purposes or it would extend to properties used for the purpose incidental to educational activities?<br>6.2.Whether the exemption under Section 94 of the Act would apply to only organization running educational institution or it would also apply to persons who have let out the property for educational purposes?</i></h4><h4>7. Answer to point No.1: Whether exemption under Section 94 of the Act would only apply to land and building used specifically for educational purposes or it would extend to properties used for the purpose incidental to the educational activities?&nbsp;<br><br></h4><h4>7.1. The purpose of granting exemption under Section 94 of the Act is to incentivise education and to promote education by person or entities.<br><br></h4><h4>7.2. It is for this reason, the property tax has been exempted for lands and/or buildings which has been used for the purposes of providing educational services.&nbsp;<br><b style=\"background-color: rgb(255, 255, 0);\"><br></b></h4><h4><b style=\"background-color: rgb(255, 255, 0);\">7.3. The aspect of providing educational services cannot be considered in a restricted sense as only building or land which is used for the purpose of educational activities. In my considered opinion, any incidental activities to such educational activities would also have to be taken into consideration for the purpose of Section 94 of the Act.&nbsp;</b><br><br></h4><h4>7.4. A very large campus of more than 49 acres is being run by the petitioner, it is but required that the students and staff both teaching and non-teaching staff of the said institution are required to be provided canteen facilities, banking facilities etc., which are not only incidental but integral part of the educational services provided by the educational institution inasmuch as, students would be receiving money into their accounts, they would be operating bank accounts for day- to-day requirements. If there is no bank provided for such a large campus, the students and staff would be forced to go out of the campus in order to avail banking facility which may not be in the interest of the said students and staff. The banking facilities is in the nature of amenities which is incidental to the educational services and as such, I am of the considered opinion that any land or building used for such banking facility would&nbsp; also be exempt from payment of property tax in terms of Section 94 of the Act.&nbsp;<br><br></h4><h4>7.5. The petitioner has also provided staff quarters for the staff employed in the said institution. Admittedly, campus of the petitioner is outside the city. The campus being large, there being large number of students available on campus availing educational facility, it would also require adequate number of both teaching and non- teaching staff to be available on campus to handle the requirements of educational institution. Thus, even the staff quarters would come within the purview of Section 94 of the Act.<br><br></h4><h4>7.6. The other building which is being sought to be exempted from payment of property tax is petrol bunk. Though Sri Chaitanyakumar Chandriki, learned counsel for the petitioner would submit that the said petrol bunk has been established for the benefit of the students and staff, it is not clear, the said petrol bunk is used by the third parties outside of the educational institution? If, at all, the said petrol bunk is available for the general public, though it may provide service to the students and staff, it cannot be said that it is an integral part of the educational institution. Hence, insofar as petrol bunk is concerned, imposition of tax on the said petrol bunk is set aside and the matter is remanded to the respondent to consider whether it is part of the educational institution campus or not reserving liberty to the petitioner to provide necessary documents to establish whether it is exclusively used by the staff and students or third parties make use of the said facility.&nbsp;<br><br></h4><h4>8. Answer to point No.2: Whether the exemption under Section 94 of the Act would apply to only organization running educational institution or it would also apply to persons who have let out the property for educational purposes?&nbsp;<br><br></h4><h4>8.1. As aforesaid, introduction of Section 94 of the Act is to encourage educational institutions so as to encourage institution like the petitioner and/or anybody else to construct necessary infrastructure required for the education purpose more so, an educational facility requiring large scale infrastructure. The benefit of Section 94 of the Act if not extended to provider of the educational infrastructure, the same would not achieve the purpose for which it is being enacted, therefore, <b style=\"background-color: rgb(255, 255, 0);\">I am of the opinion that even a third party other than the educational service provider if they construct an educational institution and lease it out to educational institution, the said property being predominantly used for educational purpose would come within the purview of Section 94 of the Act. </b>What is important to be considered is the purpose for which the land and building are put to and not who the owner is. Once the land or building is put to predominant purpose or use of running an educational institution or making use of the said land for educational purposes, the same would come within the purview of Section 94 of the Act exempting the said land and building from payment of property tax.<br><br></h4><h4>9.2. The respondent cannot impose any tax as regards any land or building used for the purpose of educational institution or incidental thereto. In the present case, usage of the property for establishment of bank, canteen and staff quarters would come within exemption under Section 94 of the Act. Insofar as land used as petrol bunk, the matter is remanded to the respondent to consider afresh.<br>&nbsp;<br><br></h4>', '3e89b670cb80b2d1087274b96475e5df.jpeg', 'a810bb7a7e7e51d2721970f1e58474d8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-19', 1, '', '', '2021-03-12 23:30:22', '2023-01-19 14:32:58');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(571, 'aneO4s04YSQSYpLCaq9fmllZs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Educational Institutions. Property tax exemption is available even to any land or building used for the purpose of educational institution or incidental thereto such as bank canteen and staff quarters. Karnataka High Court.', '<h4><b>Navodaya Education Trust vs The Commissioner City Municipal Council Raichur. </b></h4><h4><b>Writ Petition 103010 of 2013 decided on 15 January 2021. </b></h4><h4><b>Justice Suraj Govindaraj.&nbsp;</b></h4><h4><b><br></b></h4><h4><b>1.The petitioner is before this Court seeking certiorari to quash the notice dated 17.08.2013 at Annexure-D issued by the respondent calling upon the petitioner to make payment of property tax in respect of buildings in the premise of the college run by the petitioner used for the purpose of canteen, petrol bunk as also residential quarters of the staff of the college.&nbsp;<br></b></h4><h4><b>6.The points that arise for consideration of this Court are:&nbsp;<br></b></h4><h4><b>6.1.Whether exemption under Section 94 of the Karnataka Municipalities&nbsp; Act,&nbsp; 1964 would only apply to land and building used specifically for educational purposes or it would extend to properties used for the purpose incidental to educational activities?<br></b></h4><h4><b>6.2.Whether the exemption under Section 94 of the Act would apply to only organization running educational institution or it would also apply to persons who have let out the property for educational purposes?<br></b></h4><h4><b>7. Answer to point No.1: Whether exemption under Section 94 of the Act would only apply to land and building used specifically for educational purposes or it would extend to properties used for the purpose incidental to the educational activities?&nbsp;<br></b></h4><h4><b><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\">7.1. The purpose of granting exemption under Section 94 of the Act is to incentivise education and to promote education by person or entities.</span><br></b></h4><h4><b>7.2. It is for this reason, the property tax has been exempted for lands and/or buildings which has been used for the purposes of providing educational services.&nbsp;<br></b></h4><h4><b>7.3. The aspect of providing educational services cannot be considered in a restricted sense as only building or land which is used for the purpose of educational activities. In my considered opinion, any incidental activities to such educational activities would also have to be taken into consideration for the purpose of Section 94 of the Act.&nbsp;<br></b></h4><h4><b>7.4. A very large campus of more than 49 acres is being run by the petitioner, it is but required that the students and staff both teaching and non-teaching staff of the said institution are required to be provided canteen facilities, banking facilities etc., which are not only incidental but integral part of the educational services provided by the educational institution inasmuch as, students would be receiving money into their accounts, they would be operating bank accounts for day- to-day requirements. If there is no bank provided for such a large campus, the students and staff would be forced to go out of the campus in order to avail banking facility which may not be in the interest of the said students and staff. The banking facilities is in the nature of amenities which is incidental to the educational services and as such, I am of the considered opinion that any land or building used for such banking facility would&nbsp; also be exempt from payment of property tax in terms of Section 94 of the Act.&nbsp;<br></b></h4><h4><b>7.5. The petitioner has also provided staff quarters for the staff employed in the said institution. Admittedly, campus of the petitioner is outside the city. The campus being large, there being large number of students available on campus availing educational facility, it would also require adequate number of both teaching and non- teaching staff to be available on campus to handle the requirements of educational institution. Thus, even the staff quarters would come within the purview of Section 94 of the Act.<br></b></h4><h4><b>7.6. The other building which is being sought to be exempted from payment of property tax is petrol bunk. Though Sri Chaitanyakumar Chandriki, learned counsel for the petitioner would submit that the said petrol bunk has been established for the benefit of the students and staff, it is not clear, the said petrol bunk is used by the third parties outside of the educational institution? If, at all, the said petrol bunk is available for the general public, though it may provide service to the students and staff, it cannot be said that it is an integral part of the educational institution. Hence, insofar as petrol bunk is concerned, imposition of tax on the said petrol bunk is set aside and the matter is remanded to the respondent to consider whether it is part of the educational institution campus or not reserving liberty to the petitioner to provide necessary documents to establish whether it is exclusively used by the staff and students or third parties make use of the said facility.&nbsp;<br></b></h4><h4><b>8. Answer to point No.2: Whether the exemption under Section 94 of the Act would apply to only organization running educational institution or it would also apply to persons who have let out the property for educational purposes?&nbsp;<br></b></h4><h4><b>8.1. As aforesaid, introduction of Section 94 of the Act is to encourage educational institutions so as to encourage institution like the petitioner and/or anybody else to construct necessary infrastructure required for the education purpose more so, an educational facility requiring large scale infrastructure. The benefit of Section 94 of the Act if not extended to provider of the educational infrastructure, the same would not achieve the purpose for which it is being enacted, therefore, I am of the opinion that even a third party other than the educational service provider if they construct an educational institution and lease it out to educational institution, the said property being predominantly used for educational purpose would come within the purview of Section 94 of the Act. What is important to be considered is the purpose for which the land and building are put to and not who the owner is. Once the land or building is put to predominant purpose or use of running an educational institution or making use of the said land for educational purposes, the same would come within the purview of Section 94 of the Act exempting the said land and building from payment of property tax.<br></b></h4><h4><b>9.2. The respondent cannot impose any tax as regards any land or building used for the purpose of educational institution or incidental thereto. In the present case, usage of the property for establishment of bank, canteen and staff quarters would come within exemption under Section 94 of the Act. Insofar as land used as petrol bunk, the matter is remanded to the respondent to consider afresh.</b><br></h4>', '2230078dd56f9a947f863270fdafc0a6.JPG', '743d5c14c53d672981dec33e8785155e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-25', 1, '', '', '2021-03-12 23:47:14', '2023-01-25 13:30:07'),
(572, 'aCX3amltImgwPiXBc0Lc7HOjt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Criminal proceeding is not like the native game of  Kho Kho wherein one triggers the movement of another. Section 319 does not mean that after one sets the criminal law into motion others can take it further. Karnataka High Court. 10 March 2021', '<h4>Amrutesh N.P. vs State of Karnataka and others. </h4><h4>Criminal Petition 4857 of 2021 decided on 10 March 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/371150/1/CRLP4857-18-10-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/371150/1/CRLP4857-18-10-03-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: Petitioner a practising advocate of repute and an office bearer of Advocates Association, Bengaluru, is invoking inherent jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 grieving against  the order dated 15.06.2018 whereby the learned  judge  of the Special Court, Bengaluru, having rejected  his  application filed under Section 319 of the  Code  has  declined to array the respondents as the accused in S.C.C.No.455/2017 in which the trial is half way through. After service of notice, respondents having entered appearance through their advocates oppose the petition arguing in support of the impugned order and the reasons on which it has been structured.<br>2(c) After the trial began, petitioner herein filed an application dated 12.03.2018 under Section  319  of  the  Code seeking arraignment of the respondents herein as additional accused; the application was founded on the statement given by the second respondent to the police on 18.02.2015 under Section 161 of the  Code;  this  was  opposed by the respondent – Lokayukta  by  filing  Objections dated 30.05.2018 contending that the  application was premature and that, there was no material on record for implicating the said respondents.<br>(d) Learned judge of the Court below  having  heard the petitioner and the respondent –  Lokayukta  Police,  made the impugned order dismissing the subject  application; aggrieved thereby, petitioner is before this Court. In support of his case, petitioner has relied upon certain decisions, as has the respondents’ side done for opposing the petition.<br><b style=\"background-color: rgb(255, 255, 0);\">(b) True it is, that as a general norm of criminal jurisprudence, anyone can set the  criminal  law  into  motion, vide Antulay supra; however, this diction does not mean that \'anyone & everyone\' can do that in a kind  of relay, in a sense that, after one sets the criminal law into motion, others can take it further; a criminal proceeding is not like the native game of  Kho Kho wherein one triggers the movement of another, so on & so forth; admittedly, the subject criminal case was initiated by the de facto complainant, namely Mr. Y.H.Srinivas of Bhrastaachaara Virodhi Vedike; for inscrutable reason he is not arrayed as a respondent to the petition nor to the subject application either; it is not the case of petitioner that for any culpable reason, the said Vedike or Mr.Srinivas has  not  taken  up  the case against the private respondents herein after the police declined to set them for trial, and therefore, he is espousing the cause; petitioner herein is neither the office bearer of Vedike nor otherwise associated with it or with Mr.Y.H.Srinivas; not even a whisper is made about this in the application or the petition.</b><br>(c) The Apex Court in Lok Ram supra at para 12 observed: “Power under Section 319 of the Code can be exercised by the Court suo moto or on an application by someone including accused already before it. If it is satisfied that any person other than the accused had committed an offence he is to be tried together with the accused…”. Learned counsel for  the  petitioner  stressing  the word ‘someone’ occurring in the observation  of  the  Apex Court argues that it can be anyone & everyone; this is bit difficult to countenance; more than a century ago, a great Judge of US Supreme Court Justice Oliver Wendell Holmes in TOWNE vs. EISNER (1918) had observed: “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used..”.<br>(d)<span style=\"white-space:pre\">	</span>By describing a word as above, Justice Holmes gave a physical human attribute to language employed in  law & life acknowledging the degree to which it is an embodiment of ideas; like all things with bodies, language changes over time and in contexts; he also wrote about the changing colour of words and thus brought the topic of visual perception into the equation; one’s perception of colour itself is also dependent on context, as discussed by German teacher of Visual Arts Mr.Josef Albers in  his  famous book “The Interaction of Color” wherein he shows how one colour radically different depending upon its surroundings; although what Justice Holmes said is more appropriate for the interpretation of statutes, it cannot be said to be impertinent in construing the words used in judgments & orders of courts.<br>(e)<span style=\"white-space:pre\">	</span>The decision in Lok Ram supra, which is heavily pressed into service by Mr. Shetty if perused in its entirety does not suggest that the word ‘someone’ may include an utter stranger to the proceedings, like the petitioner herein although it arguably includes the de facto complainant; the reason for this view is not far  to  seek;  para 3 of decision itself shows that the person who had moved the application u/s.319 in that case was none other than the de facto complainant – Nihal Singh; in  construing a decision, three basic postulates need to be kept in view:<br>(i) the fact matrix of the case, (ii) statement of principles applicable to the legal problems arising from the said fact matrix & (iii) the judgment based  on the combined  effect  of<br>(i) & (ii); thus viewed, the proposition canvassed by the petitioner does not find support from the said  decision  cited; the diction that anyone can set the criminal law in motion does not mean that once so set by someone, some others can lay a challenge to the orders made by the court   in the pending criminal prosecution; an argument in variance, if countenanced, would infuse abundant abuse potential that may pollute the stream of administration of criminal justice and thereby create enormous difficulty  to the criminal justice system; this is not desirable, to say the least.<br>D. Scope & invocation of Sec.319 of the Code and what the Apex Court said in Hardeep Singh Case:<br>(a) The scope & applicability of sec.319 of  the  Code are delineated in  a  catena  of  decisions;  in  HARDEEP SINGH vs. STATE OF PUNJAB, (2014) 3 SCC 92, a Constitution Bench of the Apex Court having surveyed the entire  law developed  u/s.319  explained  the  scope  &  extent of powers of the  courts;  it  observed  that  : it is  the duty of  the Court to do justice by punishing the real culprit;  where the investigating agency despite evidentiary material gathered in the investigation does not array a prima facie culpable person as an accused, the  court  can  summon  him for trial; after the filing of the charge sheet  the case reaches the stage of enquiry and once the court frames the charges,  the trial commences, and therefore the power under this section can be exercised  at any  time  after  the  charge sheet  is filed and before the pronouncement of judgment, except during the stage of committal, etc.; Mr. C.V.Nagesh, learned  Sr. Advocate appearing for the private respondents is  more than justified in  stating  that  what  is  required  for summoning a person u/s. 319 for facing the trial is little more than a prima facie case as contradistinguished from some case vide BABUBHAI vs. GUJARAT, 2014 CrLJ 2290 (SC); he reasons out this by pointing out that it is the statutory authorities like the police who undertake investigation and therefore the  presumption  as  to regularity of discharge of official duties by the public servants arises under law; he also  points  out  that  ordinarily it is the investigating agency which  decides  on the basis of investigated material, as to whom to set up for trial and whom not to; he readily agrees that this is not a Thumb Rule and some exceptions are recognized thereto, such as the cases of  abuse  of  investigatory  power,  malice of the official concerned, etc; however, the argued case of the petitioner does not fit into these exceptions.<br>This court is in complete agreement with the  fair  stand taken by the respondent – Lokayukta police through its learned Panel Counsel and therefore reject  the  contention of the counsel for the petitioner as being thoroughly unworthy of acceptance.<br>In the above circumstances, this petition being devoid of merits, is liable to be dismissed and accordingly it is, costs having been made easy.<br></h4>', 'a84394e20ceb9747c6176e4b653dc036.jpg', 'f8479b846bd08f695263853825c5b4ab.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-10', 1, '', '', '2021-03-13 05:15:43', '2021-03-13 05:17:32'),
(573, 'wKXK3168qt3HSIuiQUCsJZXGR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. Documents. Fabrication to commit fraud - Fabrication to use in Court proceedings - Tampering with Court documents. Proper course of action explained. Karnataka High Court.', '<h4>Lakshmidevi and others vs State of Karnataka and others. Criminal Petition 5075 of 2020 decided on 24 February 2021. </h4><h4><span style=\"font-size: calc(1.275rem + 0.3vw); font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">1. The petitioners are before this Court seeking for Quashing</span><span style=\"font-size: calc(1.275rem + 0.3vw); font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%; white-space: pre;\">	</span><span style=\"font-size: calc(1.275rem + 0.3vw); font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">the complaint</span><span style=\"font-size: calc(1.275rem + 0.3vw); font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%; white-space: pre;\">	</span><span style=\"font-size: calc(1.275rem + 0.3vw); font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">.. filed by the respondent No.2 before the respondent No.1 for offences punishable under Section 417, 419, 420, 468, 471, 193, 120B read with Section 34 of the Indian Penal Code, 1860.</span></h4><h4>3. In the complaint, it is alleged that Smt.Sita Ramaswamy was the owner of Sy.No.37, New Sy.No.141/1 and Sy.No.141/B situated in Pattanduru Agrahara Village. She formed a layout comprising of sites and sold the same in favour of various persons by way of registered sale deeds in the year 1994-95, who in turn sold the same under registered sale deeds to the vendors of the Complainant, and the Complainant purchased the said sites in the year 2003 from his vendors under registered sale deeds. The petitioners, in collusion with one Vinod Kumar, fabricated the family tree and death certificate of deceased Smt. Sita Ramaswamy to show petitioner No.1 as her only legal heir and in collusion with the Assistant Commissioner, Bangalore North Sub-Division, petitioners and Vinod Kumar got the aforesaid properties mutated in the name of petitioner No.1 in order to claim property rights in the said survey number and deprive the Complainant of his title......The documents have been fabricated only to usurp the property, the actual legal heirs of Smt. Sita Ramaswamy have all executed declaration in favour of vendors of the complainant way back in the year 2003.<br><br></h4><h4>8. Based on the submission made by both the counsel and the pleadings filed, citations referred to, the points that would arise for determination are:</h4><h4 style=\"margin-left: 25px;\"><i>1. Whether it can be stated in the present facts that the dispute between the Complainant and the petitioners is entirely civil in nature, thereby making the criminal complaint not maintainable</i></h4><h4 style=\"margin-left: 25px;\"><i>2. Whether once a complaint had been filed before the jurisdictional police station, could it be transferred to the Central  Crime Branch<span style=\"white-space:pre\">	</span>for<span style=\"white-space:pre\">	</span>the<span style=\"white-space:pre\">	</span>purpose<span style=\"white-space:pre\">	</span>of<span style=\"white-space:pre\">	</span>the investigation?<br>3. Whether merely because a document is used in a Court proceeding, the bar under Section 195 of Cr.P.C., would come into operation or could a complaint be filed before the police station alleging fabrication and forgery of documents, or could both the remedies be availed of by the aggrieved party?</i></h4><h4>10. Answer to Point No.1: Whether it can be stated in the present facts that the dispute between the Complainant and the Petitioners is entirely civil in nature, thereby making the criminal complaint not maintainable?<br><br></h4><h4>10.3.<span style=\"white-space:pre\">	</span>In the present case, there are serious allegations made by the Complainant against the petitioners as regards they having fabricated the family tree, death certificate, revenue documents to usurp the property which allegedly does not even belong to or that the petitioners have no right, title or interest in relation thereto more particularly petitioner No.1.<br><br></h4><h4>10.6.<span style=\"white-space:pre\">	</span>This Court, while considering the petition under Section 482 of Cr.P.C., cannot hazard to give a finding on the truthfulness or otherwise of the allegation. So long as the ingredients are prima-facie made out, this Court is required to stay its hand and permit the investigation to go ahead, and in the event of a charge sheet being laid, a trial could be held.<br><b style=\"background-color: rgb(255, 255, 0);\"><br></b></h4><h4><b style=\"background-color: rgb(255, 255, 0);\">10.13. As such, I answer Point No.1 by holding that in the present facts, the dispute between the Complainant and the petitioners cannot be said to be entirely civil in nature or as a corollary; it cannot be said that there is no criminal offence made out against the petitioners thereby rendering the criminal complaint filed by the Complainant an abuse of the process of law. As such, I am of the considered opinion that the investigation ought to go on.</b><br><br></h4><h4>11. Answer to Point No.2: Whether once a complaint had been filed before the jurisdictional police station, could it be transferred to the Central Crime Branch for the purpose of the investigation?<br><br></h4><h4>11.1. Initially, a complaint had been filed before the Seshadripuram Police Station.  Thereafter, the Assistant Commissioner of Police transferred the matter to the CCB for investigation. Sri. Aravind Kamath, learned Senior Counsel for the petitioners, has contended that such a transfer could not have been done. <br><br></h4><h4>11.4.<span style=\"white-space:pre\">	</span>In the present case, it is not that the investigation has been transferred to an inferior officer. The investigation has been transferred from one Police Inspector to another Police Inspector in the CCB. Therefore, the person who has been nominated by the Assistant Commissioner of Police is of the same rank as that of the Investigating Officer in the Seshadripuram Police Station. Hence, in my considered view, the decision of Magadi Shankar Rao’s case supra would not be applicable to the present case. More so, in the said decision, the matter was referred to the concerned Police Station by a Magistrate under Section 156(3) of Cr.P.C. whereas in the present case, there is a complaint filed by the Complainant with the jurisdictional police.<br><br></h4><h4>11.6.<span style=\"white-space:pre\">	</span>However, if a complaint had been filed with the police station, the Police Commissioner or the Assistant Commissioner of Police can always by exercising administrative power, on the application of his mind to the facts and circumstances, if so required, transfer the case for investigation to another Investigating Officer or Investigating Agency. If the same is malafide and so established by the accused or the Complainant, such transfer could be set aside.<br><b style=\"background-color: rgb(255, 255, 0);\"><br></b></h4><h4><b style=\"background-color: rgb(255, 255, 0);\">11.20. Hence, I answer Point No.2 by holding that whenever a complaint is filed before a jurisdictional police station, the same could be transferred to the Central Crime Branch for the purpose of the investigation by the State or by an officer who has superintendence power over the said police station. However, the Investigating Officer of the CCB named has to be of the same or higher rank as that of the Investigating Officer in the police station.</b><br><br></h4><h4>11.22. This vexed contention has been raised in several matters. The State may consider designating the CCB as a police station so as to avoid these kinds of issues being raised in future.<br>12. Answer to Point No.3: Whether merely because a document is used in a Court proceeding, Section 195 of Cr. P.C., would come into operation or could a complaint be filed before the police station alleging fabrication and forgery of documents, or could both the remedies be availed of by the aggrieved party?<br><br></h4><h4>12.2.<span style=\"white-space:pre\">	</span>Taking note of the fact in the complaint filed that there are various references made before the Court, a false affidavit filed, a false written statement was filed, and a false counter-claim filed as also taking into account that fabricated documents had been produced before the Court, the Hon’ble Apex Court held that there was no standalone offence under Section 464 of Cr.P.C. made out since the debit notes were not made with the intention of causing it to be believed that they have been made by or under the authority of some other person. Since no offence under Section 464 of Cr. P.C., had been made out, the Hon’ble Apex Court was of the opinion that the requirements of Sections 195 and 340 of Cr.P.C. had to be followed.<br><br></h4><h4>12.3.<span style=\"white-space:pre\">	</span>In the present case, the family tree is alleged to have been made with the intention of causing it to be believed by third parties, including the revenue officer, Tehsildar etc., that it was true. Petitioner No.1 is also alleged to have impersonated the daughter of late Sita Ramaswamy before the revenue officer, Tehsildar etc.,. These offences are alleged to have commenced much prior to the proceedings before the Court inasmuch as the death certificate and family tree are alleged to have been fabricated for submission before the Tehsildar and impersonation of petitioner No.1 to be the daughter of Smt. Sita Ramaswamy was also made before the Tehsildar. Such being the case, those offences having occurred outside the Court are distinct and separate offences. Merely because subsequently, the same was used in a judicial proceedings cannot deprive the Complainant of his right to file a private complaint.<br><br></h4><h4>12.4.<span style=\"white-space:pre\">	</span>In the present case, the sequence of dates of events is important inasmuch as the petitioners are said to have fabricated a death certificate of Smt. Sita Ramaswamy, they have also fabricated a family tree of Smt. Sita Ramaswamy, and on that basis, had approached the Tehsildar for a change of katha in the name of petitioner No.1. It is only because the Tehsildar rejected the documents and refused to change the Katha and mutate the name of petitioner No.1 that they had approached the Assistant Commissioner. The usage of the so-called fabricated documents was made before the Tehsildar by the petitioners for the benefit of getting the name of petitioner No.1 to be recognised as the owner of the lands in question.<br><br></h4><h4>12.5.<span style=\"white-space:pre\">	</span>It is only thereafter that petitioner No.1 filed an appeal before the Assistant Commissioner, only on account of the Tehsildar refusing the request of the Petitioners that the proceedings before the Assistant Commissioner were filed and the said documents used. The use of the document for the first time was made not in a Revenue Court but before a Revenue Officer.<br><br></h4><h4>12.6.<span style=\"white-space:pre\">	</span>Insofar as the usage of the documents before a Revenue Court, i.e., before the Assistant Commissioner, it is alleged that the petitioners had colluded with the said Assistant Commissioner, and the Assistant Commissioner is also involved in IMA scam. The involvement of the Assistant Commissioner in the present matter would also have to be ascertained.<br><br></h4><h4>12.7.<span style=\"white-space:pre\">	</span>In the above background, when the document has been used outside the Court, it cannot be said that Section 195 of Cr.PC would come into play. As held by the Hon’ble Apex Court in Narendra Srinivastva’s case supra, Section 195 would come into play only if the documents had been fabricated or otherwise when the document is in the custody of the Court, i.e., custodia legis since in that eventuality the crime having been committed within the Court, the Court would be required to initiate the complaint. The said decision can, however, only apply to fabrication and or forgery of a document in the Court’s custody and not as regards false or fabricated evidence submitted.<br><br></h4><h4>12.8.<span style=\"white-space:pre\">	</span>In the present case, crime is actually alleged to have been committed prior to the documents being used in a Court of law, be it a Revenue Court. Since the documents have been fabricated outside the Court when they were no Court proceedings going on between the parties.<br>12.9.<span style=\"white-space:pre\">	</span>The situation could have been different if the documents had been fabricated outside the Court only for the purpose of usage in Court proceedings, which are pending.<br><br></h4><h4>12.10. Thus, there are four instances that would arise for the purpose of consideration:<br><br></h4><h4>12.10.1. A document that is forged or fabricated and has not been used in a court proceeding;<br><br></h4><h4>12.10.2. A document has been fabricated for the exclusive purpose of usage in a court proceeding that is pending;<br><br></h4><h4>12.10.3. A document in the custody of the Court is tampered with so as to change the contents, thereby forging the said document.<br><br></h4><h4>12.10.4. A document that is forged or fabricated outside the Court but subsequently used in Court proceedings.<br>12.11. In the first case, when a document is fabricated or forged and has not been used in a court proceeding, it cannot be said that Section 195 would be applicable.<br>12.12. In the second case, if a document has been fabricated for the purposes of usage in a Court and thereafter, used in a Court and not elsewhere, then Section 195 of Cr.P.C. would come into play as against the private Complainant. In such a situation, it is only the Court which could initiate the proceedings against the offender.<br>12.13. In the third case, if a document is tampered with and/or fabricated while in the custody of the Court, then, it would be the Court alone, which could have to be the Complainant and Section 195 would come into play.<br>12.14. In the fourth case, as held in the first case scenario, if the document has been fabricated and not used in a Court proceeding, then the aggrieved party can always file a criminal complaint, and the same could be proceeded with by the jurisdictional police. The situation gets complicated when after the fabrication, the same is used in a Court proceedings. What would be the remedy of the aggrieved party or rather who is the aggrieved party, is Court also an aggrieved party. Though it can be said that it is the person against whom the offence has been committed both outside Court and inside the Court who is the aggrieved party, if the offence is committed inside the Court, the Court could also be said to be an aggrieved party on behalf of the society at large since the same interferes with the course of justice, is an abuse of the process of law and violates rule of law, all of which the Court is duty bound to protect and preserve. In such a situation:<br>12.14.1. If a complaint had been filed prior to usage of the document in a Court, a private complaint would be maintainable.<br>12.14.2. In the event of the said document being used in a Court, the Court in order to preserve and maintain the majesty of law and prevent the abuse of process of Court as also to take action against such litigants, the Court could resort to initiation of proceedings in terms of Section 195 after holding an enquiry as required under Section 340 of Cr.P.C.<br>12.14.3. The question then would be<br>12.14.3.1. If a complaint had been filed prior to usage of such a document in the Court and subsequently used in a Court and the Court were also required to take action.<br>12.14.3.2.<span style=\"white-space:pre\">	</span>If a complaint had been filed by the aggrieved person after the usage of the document in Court and the Court were also required to take action.<br>12.14.4. Could both the actions be permissible or would the complaint filed by the aggrieved party before the police have to be quashed pending decision of the Court.<br>12.15. Having considered all situations as stated above, I am of the considered opinion that the offences which have been committed are distinct in nature.<br>12.16. The distinct statutory provisions give rise to separate offences and are therefore required to be treated distinctly, each of those offences are required to be proved by proving the necessary and applicable ingredients thereto.<br>12.17. Though Shri. Aravind Kamath Learned senior counsel has sought to contend that the Petitioners cannot be prosecuted twice, I’am of the concerned opinion that since there are two distinct offences involved, the principles of double jeopardy would not be attracted.<br>12.18. Double jeopardy would be attracted only if the ingredients of both the offences are one of the same, the aggrieved party is one and the same and the facts and offence are one and the same.<br>12.19. The same set of facts can always constitute different offences under different statutes. In the present case as discussed earlier, the offence of fabrication or forgery of a family tree and death certificate, the offence of impersonation and the offence of cheating are alleged to have been committed on the Complainant, which are offences under the Indian Penal Code. As regards which, the aggrieved party like the Complainant would always have a recourse to initiate/lodge a complaint before the jurisdictional police.<br>12.20. Section 195 of Cr.P.C. is completely a different enactment and relates to the procedural aspects. Section 195(1)(b)(i) Cr.P.C. relates to offences under Sections 193 to 196, 199, 200, 205 to 211 and 228 of IPC, which in turn relate to false evidence before the Court. The said offences would have to be committed in relation to a proceeding in any Court of law. Thus, if the offences is committed outside the Court, Section 195 (1)(b)(i) of Cr.P.C. would not be attracted.<br>12.21. Section 195 (1)(b)(ii) relates to offences under Sections 463, 471, 475 and 476 of IPC and the bar is imposed on the Court to take cognisance when such offences are alleged to have been “committed in respect of the document produced or given in evidence in a proceeding in any Court”. The same does not cover Section 420 viz., cheating nor does it cover impersonation which are alleged to have been committed by the petitioners. Thus, on this ground itself, it can be said that the bar under Section 195 (1)(b)(ii) Cr.P.C. would not be attracted to the present case. At most, the same could come into play only as regards offences under Sections 463, 471, 475 and 476 of IPC.<br>12.22. Be that as it may, even as regards offences under Section 463 of IPC viz., forgery, Section 471 of IPC viz., using of forged documents, the bar would be attracted only if the offences alleged to have been committed is in respect of a document produced or given in evidence in a proceeding in any Court. The usage of the words would imply that the said offence under Sections 463 or 471 of IPC should have been committed in respect of a document produced or given in evidence. The same does not relate to any offence prior to the production before the Court or prior to evidence being given before the Court.<br>12.23. This again is a distinct offence which can be said to be committed only upon the document having been produced in Court or after evidence is given. In such case, though the person against whom this document is used and/or evidence is given would be the aggrieved party, the Court could also be an aggrieved party since the provision of Section 195 Cr.P.C. has been included in the Cr. P.C. so as to enable the Court to implement Rule of Law, maintain and preserve the purity of justice system and not be polluted by such litigants.<br>12.24. Therefore, the Court whenever faced with the situation of any document being forged and/or false evidence being given, it is for the Court to exercise its jurisdiction and initiate action against such offenders by following the procedure under Sections 195 and 340 of Cr.P.C. so as to stop the pollution of the pious stream of justice.<br>12.25. It is for this reason also that I am of the considered opinion that the offences under Sections 463 and 471 committed outside Court stand on a different footing than that committed inside the Court. Once a forged document is used in a Court or any offence under Sections 463, 471, 475 and 476 of IPC is committed in the Court, the Court has no option but to initiate action against such an offender by following the due procedure applicable thereto, while as regards the offence committed outside Court the aggrieved party would be free to exercise his/her choice as to prosecute or not.<br>12.26. The fabrication of a document or impersonation, forgery or the like would continue to be an offence under Indian Penal Code for an aggrieved private party to take such action as may be required. The usage of the said document or furnishing of false evidence in a Court is distinct inasmuch as though the private party would be aggrieved, the Court would also be aggrieved since, as observed above, the Court has to maintain the majesty of the Court and to see to it that there is no abuse of the process of Court.<br>12.27. In such an event, I am of the considered opinion that the Court would have to initiate necessary proceedings for such offences which are committed before it.<br>12.28. The offences being distinct though the document is the same, I am of the considered opinion that the same would not amount to double jeopardy since after committing the offence of fabrication, forgery, etc., the said fabricator or forger has used the said document in a Court to obtain favourable orders. The second aspect at the cost of repetition I again would hold to be a distinct and separate offence. <br>12.29. The above also being for the reason that under Section 195, the Court had been given a power to file a complaint since the majesty of the Court being affected and/or the Court process being abused by which the Court on behalf of the society at large would be aggrieved and the Court could be the Complainant, the Court in such a situation would be aggrieved on behalf of the society at large, so as to preserve and protect the Rule of Law.<br>12.30. Whereas in other cases where a document is fabricated or forged so as to usurp the property, defame a person, cheat a person or like, the dispute is inter se between the person who is said to have committed the offence and the person against whom the offence is sought to be committed. Therefore, it is for the person against whom the offence is committed or sought to be committed to file a complaint against such a person who seeks to commit the offence or has committed the offence.  In such a situation, merely because the document is subsequently used in Court of law, it cannot deprive a right of the aggrieved person or a victim of the said forgery to file a complaint and the same cannot be taken away merely because the forged document has been used in a Court of law.<br>12.31. As aforesaid, the distinction that is required to be drawn to invoke the bar under Section 195 of Cr.P.C. is that primarily the Court is to be the aggrieved party requiring the Court to initiate criminal proceedings. If the aggrieved party is a third party private citizen then the third party private citizen would essentially have a right to file a complaint either in a police station or a private complaint before the Court of law under Section 200 of Cr. P.C, which right cannot be taken away. A private party cannot file a complaint before the police for abuse of process of law, giving false evidence before a court of law or using forged documents in a court, that would have to be done only by a court.<br><b style=\"background-color: rgb(255, 255, 0);\">12.32. In view of the above discussion, I answer Point No.3 by holding that in the present case, the aggrieved party is the Complainant whose right in an immovable property is sought to be usurped by the petitioners by allegedly having fabricated or forged the documents. An aggrieved party’s right  in such a situation to file a complaint cannot be taken away and as such, the complaint filed by the Complainant in the present matter is proper and valid. There is no bar under Section 195 (1)(b)(ii) Cr.P.C. for such prosecution as regards offences committed against such private Complainant, it is, however, made clear that the said complaint cannot relate to the offences committed in a Court.</b><br>12.33. In view of the discussion above, the Court could also initiate necessary proceedings against the accused for the offence under Section 340 of Cr.P.C. Both the prosecution would be concurrently maintainable, there is no bar under Section 195 (1)(b)(ii) Cr.P.C. for such prosecution and the prosecution for offences under Sections 463, 471, 475 and 476 of IPC cannot amount to double jeopardy.<br>13.1.<span style=\"white-space:pre\">	</span>In view of the above discussion, the Criminal Petition is dismissed.<br><br><br></h4>', '833cf8f649462f1d1953ba302360f92a.jpeg', '4c42600bec3b92ff959cf834db3778fb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-22', 1, '', '', '2021-03-13 06:06:26', '2022-12-22 14:28:04');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(574, 'MRdFOROIjVzZXU66DGOO7Q8Z0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Trial. Authoritative Judgment of the Karnataka High Court on Unlocking Smartphones Email Account Obtaining Passwords Passcodes Biomatrics and Polygraph tests. 12 March 2021', '<h4>Virendra Khanna vs State of Karnataka and another. </h4><h4>Writ Petition 11759 of 2020 decided on 12 March 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/371151/1/WP11759-20-12-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/371151/1/WP11759-20-12-03-2021.pdf</a></h4><h4><b><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 7. <span style=\"font-size: 1.3125rem;\">On the basis of the pleadings filed and the arguments advanced the points which arise for determination by this Court are:</span></b></h4><h4 style=\"margin-left: 25px;\"><i><b>1. Can a direction be issued to an accused to furnish the password, passcode or Biometrics in order to open the smartphone and/or email account?<br>2.Can a Court issue a suo moto order to the accused to furnish a password, passcode or Biometrics?<br>3.In the event of a direction being issued and the accused not furnishing the password, passcode or Biometrics, what is the recourse available to an Investigating Officer?<br>4. What is the consideration for the issuance of a search warrant in order to search a smartphone or computer system?<br>5. Would the data gathered from a smartphone and/or email account ipso facto prove the guilt of the accused?<br>6. Would providing a password, passcode or Biometrics amount to self-incrimination or testimonial compulsion?<br>7. Would providing of password, passcode or Biometrics violate the right to privacy of a person providing the said password, passcode or Biometrics?<br>8. What steps could be taken if the accused or any other person connected with the investigation were to refuse to furnish a password, passcode or Biometrics despite issuance of a search warrant and or a direction to provide a password, passcode or Biometrics of that person?<br>9. What are the protection and safeguard that the Investigating Officer would have to take in respect of the smartphone and/or electronic equipment?<br>10. Whether the order dated 14.09.2020 passed by the Trial Court directing the Petitioner to co-operate with the investigating agency and provide a password to open the smartphone and email account is proper?<br>11. Whether the order dated 23.09.2020 passed by the Trial Court directing the Petitioner to undergo a polygraph test violates the rights of the Petitioner under Article 20 of the Constitution of India?</b></i></h4><h4>8. INTRODUCTION:<br>8.1. Today technology has become all-pervasive, a telephone which was used in the past for communication now called a landline has given way to sophisticated instruments like smartphones which have computing powers probably thousand times more than that of computers of 90’s leading to the mobile phone or a smartphone becoming the central device for running the affairs of the person. <br>8.2.<span style=\"white-space:pre\">	</span>The mobile phone,now called a smartphone, is truly smart and today is used for all purposes, one of which is as a phone for conversing with people.It may also not be wrong to say that the usage of a smartphone as a phone is the least used of its features.<br>8.3.<span style=\"white-space:pre\">	</span>The smartphone is being used today for various activities, including sending messages, conversing on social media like WhatsApp, Facebook, Twitter, Instagram, Telegram, Signaletc., sending and receiving e-mails from various accounts, be their personal or official.Usage of the smartphone for the purpose of accessing the internet, browsing world wide web, etc. carrying out online transactions, online purchases either by internet browser or through specified and specific applications, storage of photographs,  documents, retrieval of the documents stored in the cloud or on a remote server etc., etc., the list could go on and on.<br>8.4. Essentially today, a smartphone,in many cases, has replaced the laptop, which had replaced the office, and the smartphone by itself is an office for several persons.<br>8.5.The Law of Evidence and the Criminal Procedure Code that had been enacted long ago have also been amended from time to time to try and cater to the tremendous technological improvements, apart thereform the Information Technology Act, 2000 (IT Act) has been enacted and amended from time to time to cater to these technological improvements. <br>8.6. The following definitions under IT Act would be relevant for consideration of the present matter:<br>2(ha) \"Communication device\" means cell phones, personal digital assistance or combination of both or any other device used to <br>8.7.<span style=\"white-space:pre\">	</span>The following definitions in the interpretation clause of Section 3 of the Indian Evidence Act would be relevant:<br>8.9.<span style=\"white-space:pre\">	</span>Juxtaposing the above to the definitions of an electronic form and electronic record under the IT Act, it can be seen that the definition of these two phrases seek to encompass and cover all kinds of methodology of storing data, documents as an image, photographs, documents or otherwise.Essentially all kind of images, documents, etc. can be classified as data inasmuch as the data being information stored in a particular kind of media.<br>8.10.<span style=\"white-space:pre\">	</span>Though even earlier documents were referred to and used for the purpose of evidence, essentially even at that point of time what it referred to was the data in the said document viz., the printed or written word in the document, therefore whether documentary evidence or electronic evidence essentially what one is dealing with is data.<br>8.11.<span style=\"white-space:pre\">	</span>It is this data that is required to be accessed by an Investigating officer for the purposes of carrying out an investigation; this data is required for the purposes of being referred to while a charge sheet is being laid, it is the data that would be considered by a Court of Law during the course of evidence and/or rendering of the Judgment.<br>8.12.<span style=\"white-space:pre\">	</span>In the past, letters, postcards, Island letters, telex, fax were used for the purpose of communication.This communication essentially resulted in a hard copy being sent or printed at the recipient\'s end.This document,<span style=\"white-space:pre\">	</span>in<span style=\"white-space:pre\">	</span>its<span style=\"white-space:pre\">	</span>physical form,wasconsidered, relied upon as original document during the investigation process and later-on produced and marked during the course of evidence being led in a proceeding and considered by a Court.<br>8.13.<span style=\"white-space:pre\">	</span>Smartphones and/or computer equipment are becoming ubiquitous, hard copies/print outs/ books, filing cabinets, essentially anything on paper is becoming obsolete.<br>8.14.<span style=\"white-space:pre\">	</span>As aforestated, today this physical document has taken on an electronic appearance, and these electronic documents/data could be stored on the mobile phone, computer or the like.More often than not, these smartphones, computers, servers, etc., are accessed only by using a password/passcode, including that by biometrics technology, facial recognition, iris recognition etc.Thus without having the said password, passcode, biometric, no one can access either a  mobile phone, computer or server.Some times even safes, filing cabinets, etc., are also locked using the above methodology.<br>8.15.<span style=\"white-space:pre\">	</span>It is in this background that the above matter would have to be considered.<br><b style=\"background-color: rgb(255, 255, 0);\">9. ANSWER POINT No.1</b>: Can a direction be issued to an accused to furnish the password, passcode or Biometrics in order to open the smartphone and/or email account?<br><b style=\"background-color: rgb(255, 255, 0);\">9.1. The Investigating Officer, during the course of an investigation, could always issue any direction and/or make a request to the accused or other persons connected with the matter to furnish information, to provide material objects or the like. These directions are routine in any investigation. Thus,  during the course of the investigation, the Investigating Officer could always request and/or direct the accused to furnish the password, passcode or Biometrics, enabling the opening of the smartphone and/or email account. It is up to the accused to accede to the said request and or directions. If the accused were to provide such a password, passcode or Biometrics, the Investigating Officer could make use of the same and gain an access to the same.</b> <br><b style=\"background-color: rgb(255, 255, 0);\">10. ANSWER TO POINT NO.</b>3: Can a Court issue a suomoto order to the accused to furnish a password, passcode or Biometrics?<br><b style=\"background-color: rgb(255, 255, 0);\">10.1. The Court cannot per se issue any directions to the accused to furnish the password, passcode or Biometrics and direction to cooperate would not amount to a direction to furnish password, passcode or Biometrics. The gathering of information and/or evidence, mode and methodology of investigation is in the exfaciedomain of the Investigating Officer.<br>10.2. The court by itself cannot suo moto order for furnishing of the password, passcode or Biometrics. The Court is not part of the investigation. The Court can only act on an application being filed by either of the parties. </b><br><b style=\"background-color: rgb(255, 255, 0);\">11. ANSWER TO POINT NO</b>.4: In the event of a direction being issued and the accused not furnishing the password, passcode or Biometrics, what is the recourse available to an Investigating Officer?<br><b style=\"background-color: rgb(255, 255, 0);\">11.1. In the event of the accused not providing the password, passcode or Biometrics, the Investigating Officer can approach the Court seeking for necessary directions to the accused to provide the same and/or carry out a search of the smartphone or any electronic equipment.</b><br><b style=\"background-color: rgb(255, 255, 0);\">11.2.<span style=\"white-space:pre\">	</span>The Investigating Officer could approach the concerned Court seeking for issuance of a search warrant to carry out a search of the smartphone and/or electronic equipment.</b><br><b style=\"background-color: rgb(255, 255, 0);\">12. ANSWER TO QUESTION NO.5: </b>What is the consideration for the issuance of a search warrant in order to search a smartphone or computer system?<br>12.1.<span style=\"white-space:pre\">	</span>The requirement for a search of a smartphone and/or electronic instrument could arise under two circumstances.<br>12.1.1. Emergent circumstances<br>12.1.2. During the regular ordinary course of the investigation<br>12.2.<span style=\"white-space:pre\">	</span>It is in light of these two circumstances that the nature and methodology of a search would have to be considered.<br>12.3.<span style=\"white-space:pre\">	</span>The Cr.P.C. provides a framework for carrying out a search of any premises or the like. There is no particular or different framework provided for the purposes of search of a smartphone or electronic equipment, computer, server etc. Thus, it is the framework under Cr.P.C. and to some extent under the Information Technology Act, which would have to be made applicable to searches of these kinds.<br>12.4.<span style=\"white-space:pre\">	</span>Chapter VII of Cr.P.C. provides for search, seizure, production etc. Section 91 of Cr.P.C. enables any Court or any officer in charge of a police station to issue summons or order to the person in whose possession or power such a document or thing are believed to be requiring him to attend and produce it at the time and place indicated in the said summon or order.<br>12.5.<span style=\"white-space:pre\">	</span>Section 92 of Cr.P.C. provides the power to the District Magistrate, Chief Judicial Magistrate, Court of Sessions or High Court to require the postal or telegraph authority for the purposes of investigation, enquiry or trial to order the postal or telegraph authority to deliver the document, parcel or thing in the custody of postal or telegraph authority. Similarly, the Commissioner of Police or District Superintendent of Police may require the postal or telegraph authority to cause search, detain the document or parcel and produce the same before the Court. It is pertinent to mention here that the correspondence email etc., would be covered under the Telegraph Authority.<br>12.6.<span style=\"white-space:pre\">	</span>Section 93 of the Cr.P.C. provides powers to the Court to issue a search warrant<br>12.6.1. On a person not willing to produce a document or a thing as directed under Section 91 of Cr.P.C., or<br>12.6.2. Where the document or thing is not known to be in possession of anyperson or<br>12.6.3. Where the Court considers that for the purpose of any enquiry, trial or other proceedings, a general search or inspection would serve the purpose.<br>12.7.<span style=\"white-space:pre\">	</span>In terms of Section 93 (2) of Cr.P.C., the Court could also restrict the search to a specific place, a specific time or a specific purpose.<br>12.8.<span style=\"white-space:pre\">	</span>Section 94 of Cr.P.C. confers power on certain Courts to search places suspected to contain stolen property, objectionable article, forged documents, counterfeit material, obscene objects, instruments or materials used for the production of any item under Section 94 (2) of Cr.P.C., and to take such action as may be required in terms of Section 94(1) of Cr.P.C., thereof. <br>12.9.<span style=\"white-space:pre\">	</span>In terms of Section 100 of Cr.P.C., in the event of any place being closed, any person residing in or being in charge of such place shall on demand of the officer or other person executing the warrant and on the production of the warrant allowing free ingress thereto. As also afford all reasonable facilities for a search therein. In the event of any person suspected to be concealing any article, a search of such person could also be made subject to however restrictions that a search of any woman could be made by a woman.<br>12.10. During the process of search in terms of Section 102 of Cr.P.C., any particular item could be seized by a person conducting a search on fulfilling certain criteria. <br>12.11. In view of the above, the said Chapter VII provides several powers to the Police or Magistrates, which could include the power to search and seize a smartphone, computer, server or any other electronic item or equipment.<br>12.12. A search and seizure of a smartphone can also be permitted in terms of the above provisions as contained in the Cr. P.C. As observed above, in terms of Section 100 of Cr.P.C., even a closed place can be searched by the persons searching directing any person incharge of a place to open the same and provide all facility. It is in the background of the above provisions that the aspect of search of a smartphone or electronic equipment, including an e-mail account will have to be considered. <br>Search and Seizure in Emergent circumstances<br>12.13. It may happen that there may arise certain emergencies or exigencies for a search of a smartphone or electronic equipment to be carried out like if the data is going to be immediately destroyed, there is a danger of equipment itself being destroyed, the possibility of the equipment not being available, etc.<br>12.14. In terms of Section 102 of Cr.P.C., if there are any emergency circumstances, the Police Officer could seize the equipment; if there is any suspicion that either the object has been stolen or which create suspicion of commission of any offence.<br>12.15. The second aspect as regards of suspicion of  any commission of any offence is wide enough to cover a plethora of  situation. Thus, in an emergent situation, the Police Officer could seize the electronic equipment.<br>12.16. In emergent circumstances, it cannot be expected of the Investigating officer to rush to a court of Law to obtain a warrant, such a requirement would amount to negating their powers and impinging on their functions. When there is adequate time to obtain a warrant, the same ought to be obtained, however, if an urgent search is to be conducted and it may be difficult to get a search warrant, certain safeguards will have to be observed and conditions fulfilled.<br>12.17. There must exist reasonable grounds for believing that it is necessary for carrying out a search of the Smartphoe or Electronic Equipment with expediency and that if such a search is not conducted immediately, the conduct of the offence may be expedited and/or the evidence thereof be lost.<br>12.18. In such a scenario, there must be a recording in writing made by the Investigating officer, specifying in writing as far as possible the reasons for conducting such a search without a warrant. The objective satisfaction by such officer of the emergent nature of the search has to be recorded in writing in sufficient detail. Unless these conditions are fulfilled, a search without a warrant would be without jurisdiction, these conditions are necessary to safeguard the interest of the person and or organization searched, more so when a search so conducted would also impinge on the right to privacy of such a person.<br>12.19. In terms of Section 165 of Cr.P.C., if the investigating officer during the course of investigation has reasonable grounds for believing that anything required for the purpose of investigation would be found in a place within the limits of his police station of which he is incharge of or attached to, he may without delay after recording in writing the grounds for belief and specifying in writing as far as possible, the thing for which search is to be made, search any place within his limits of jurisdiction. However, the copies of any record made to conduct such a search would have to be sent to the Magistrate empowered to take cognizance of an offence and a record of the same. Though a search without reasons and without following the procedure may be illegal, the illegality of the search would not make any seizure made during the search inadmissible as held by the Hon’ble Apex Court in the case of Dr.Pratap Singh vs. Director of Enforcement Foreign Exchange Regulation and others reported in (1985) 3 SCC 72. However, the Courts would have to be cautious while dealing with the evidence collected in such an illegal search.<br>Search and Seizure during the regular ordinary course of the investigation<br>12.20.If the search is required to be carried out in a normal and regular course of an investigation, in that situation, the investigator or investigating agency would have sufficient time to plan out the manner of carrying out such a search as there being no emergency or immediate requirement of carrying out such search.<br>12.21. The investigating officer could issue a notice under Section 91 of Cr.P.C., calling upon the accused or any other person to produce any particular document or equipment as stated above. If not so produced, a search warrant could be sought for from the Court of law. Be that as it may without issuance of a notice under Section 91 of Cr.P.C., a search warrant could be issued inasmuch as the issuance of a notice under Section 91 of Cr. P.C. is not a pre-condition for issuance of a search warrant under Section 93 of Cr. P.C. Once a search warrant is issued and received by the accused or any other person it would be the obligation of such person to permit the search and/or to provide document or thing called upon.  <br>12.22. While issuing a search warrant, the concerned Court would have to indicate as to what smart phone, electronic equipment or email account is to be searched. The role of the same in the crime, the nature of search to be done, place where the search has to be done as also specifically interdict the persons carrying out the search from disclosing the material and/or data procured during the course of the said search to a third party. So as to preserve the privacy of the concerned.<br>12.23. The provisions referred to and mentioned deals with search and seizure. Electronic equipment occupies a slightly different position, in that it is not only the seizure of the phone and equipment, but once it is seized, the said equipment is required to be opened more often than not such equipment are locked by password, passcode or biometrically. Thus, for the purpose of opening and/or accessing the data on the said equipment, it would be required for the accused or person in charge of the said equipment to provide a password, passcode or open the same using the biometrics.<br>12.24. As mentioned above, in terms of Section 100 of Cr.PC., a person in charge of a closed place is also required to permit such search and, in fact, facilitate such search.<br>12.25. Applying the said principle to a smartphone, electronic equipment or an email account, it would but be required for the accused or a person in charge of electronic equipment to provide the password, passcode or biometrics to open the Smartphone, computer equipment or email account.<br>12.26. It is these aspects which have to be considered in the present circumstances. Section 69(1) of the IT Act empowers the specified officers to pass orders compelling the decryption of any information, generated, transmitted, received or stored in a computer resource which would also include a smartphone.<br>12.27. When the said authority is satisfied that it is necessary for the purpose of any investigation into any offence, however, an officer, before ordering such decryption, is required to record in writing the reasons for calling upon for such decryption and inform the person of the possibility of prosecution if he does not comply with a request.<br>12.28. Search and seizure are important weapons in the hands of the officers concerned therefore it is but required that such powers should be exercised with due circumspection and discretion, and the same should not result in harassment of innocent persons. When a search is made with a warrant, the procedure required to be followed is stated in the Cr. P.C, which need to be so followed. Even  when a search is made without a search warrant, it would be treated that such a search or consequent seizure is conducted/made the safeguards enshrined under the Cr. P.C.<br>12.29. As observed above, the officers conducting a search are required to comply with the procedural requirements of Cr.P.C, some of them though not exhaustive,are enumerated hereunder:<br>12.29.1. A lady officer is required to be present if the accused is a lady or if the equipment is located in a place where there are ladies present.<br>12.29.2. The search and seizure should normally be done after sunrise and before sunset. However, if it is conducted after sunset and before sunrise, the grounds as to why it was felt necessary to take such action should be recorded and copy of the grounds so recorded must be sent within 72 Hours to the immediate official superior.<br>12.29.3. The officers before starting the search are required to disclose their identity by showing their identity cards to the owner of the premises.<br>12.29.4. Search should be made in the presence of two independent and respected witnesses of the locality.<br>12.29.5. A Panchnama / Mahazar, should be prepared on the spot which contains the proceedings of the search. A list of all goods, documents recovered and seized/detained should be prepared and annexed to the Panchnama/Mahazar. This document and the list of things seized needs is to be signed by the witnesses and the owner of the premises before whom the search is conducted and also by the officers who are carrying out the said search.<br>12.29.6. After examination of the seized goods or things by the authority, the same to be sent for any technical/forensic examination within a period of 72 hours thereof.<br>12.29.7. A search and seizure report to be prepared containing the details of the conduct of the search and outcome, containing the names of the officers and other persons including the panchas and witnesses who participated in the search.<br>12.29.8. A copy of the Panchnama / Mahazar prepared to be furnished to the person in- charge/owner of the premises being searched under acknowledgement.<br><b style=\"background-color: rgb(255, 255, 0);\">13. ANSWER TO QUESTION NO.6</b>:Would the data gathered from a smartphone and/or email account ipso facto prove the guilt of the accused?<br>13.1.<span style=\"white-space:pre\">	</span>Since, as stated above, a smartphone can contain humongous data, which could also be incriminatory insofar as the person owning the said electronic equipment, including the smartphone, is concerned and it is in this background, we have to consider the providing of a password, passcode or biometrics and whether making available, this incriminatory material would amount to giving of testimony and or a statement in terms of Section 161 of Cr.P.C.<br>13.2.<span style=\"white-space:pre\">	</span>On a notice being issued under Section 160 of Cr.P.C., any witness could be examined by  the police, the witness could be the accused himself.<br>13.3.<span style=\"white-space:pre\">	</span>Such a statement needs to be reduced to in writing wherein such person is required to answer all questions relating to such case, other than the questions, the answer to  which would have the tendency to expose him to a criminal charge or a penalty or forfeiture. That being a right to protection of self-incrimination as enshrined under Article 20 of the Constitution of India.<br>13.4.<span style=\"white-space:pre\">	</span>Though Mr Tigadi, learned counsel for the Respondent contended that the disclosure of password is in the nature of giving specimen signatures or handwriting and therefore a direction could be issued under Section 311-A of the Cr. P.C, I\'m of the considered opinion that the providing of a password, passcode or biometrics is more than that, and a direction cannot be issued in that manner.<br><b style=\"background-color: rgb(255, 255, 0);\">13.5. In the event of password, passcode or Biometrics being provided and the Investigating Officer gaining access to the said smartphone and/or electronic equipment or email account, the data so gathered would have to be treated as any other document and/or object secured during the course of investigating like in the case of securing a murder weapon. The same does not by itself prove that the accused has committed the murder, similarly, the data gathered by itself would not prove the guilt of the accused. The data gathered would have to be proved during the course of the trial as done in any other matter.</b><br><b style=\"background-color: rgb(255, 255, 0);\">14. ANSWER TO POINT NO.</b>7:Would providing a password, passcode or Biometrics amount to self-incrimination or testimonial compulsion?<br>14.1.<span style=\"white-space:pre\">	</span>As regards the contention that providing of the password/pass code will amount to testimonial compulsion, I am of the considered opinion that there is no testimony which is given by the accused by providing the said password, passcode or biometrics by which the document is being accessed by the Investigating officer.<br>14.2.<span style=\"white-space:pre\">	</span>The XI Judge Bench of the Apex Court in Kathi Kalu Oghad’s case has categorically held that providing of a thumb impression or impression of the palm or foot or fingers or specimen in writing or exposing a part of the body of an accused person for the purpose of identification would not amount to testimonial compulsion. Mere providing of an access of to smartphone or e-mail account would not amount to being a witness, the information that is accessed by the Investigating officer on the smartphone and or the e-mail account being only access to the data and/or documents, it is for the Investigating officer to prove and establish the same in a Court of Law by following the applicable Rules of evidence.<br>14.3. Merely because any document is present or available on the smartphone and or the e- mail account would not by itself establish the guilt or innocence of an accused. Both the prosecution, as also the accused/defence would be required to prove the  said document or data by other evidence also. <br>14.4.<span style=\"white-space:pre\">	</span>If the submission of Mr.Hasmath Pasha, learned Senior counsel would be accepted, the same would result in a chaotic situation:<br>14.4.1. No blood samples can be taken;<br>14.4.2. no sample for DNA analysis could be taken;<br>14.4.3. no handwriting samples can be taken;<br>14.4.4. no other body sample for the purpose of DNA analysis could be taken<br>14.4.5. No search of a house or office could be undertaken.<br>14.4.6. The data of a laptop or computer or server cannot be accessed by the Investigating officer.<br>14.4.7. offences like cyber crime could never be investigated.<br>14.4.8. Offences like pornography, child pornography which are  more  often than not, on the internet, could not be investigated.<br>14.5.<span style=\"white-space:pre\">	</span>A direction to provide a password, passcode, biometrics would not amount to testimonial compulsion. It is only in the nature of a direction to produce a document. Mere providing access to a smartphone or e-mail account would not amount to self- incrimination since it is for the investigating agency to prove its allegation by cogent material evidence.<br>14.6.<span style=\"white-space:pre\">	</span>The data available on a smartphone or e-mail account would also have to be proved by the investigating agency in accordance with Law. Mere providing of password, passcode or biometrics would not amount to answering any question put forward by the Investigating Officer, and as such, it would not amount to a violation of Section 151(2) of the Cr.P.C.<br>14.7.<span style=\"white-space:pre\">	</span>As contended by Sri.Veranna Tigadi, learned counsel providing of the password, passcode, pin, biometrics is akin to finger printing and/or taking imprints of the shoes, soles and or taking sample of the clothes, biological samples, chemical samples, etc, same cannot amount to forced testimony on part of the accused. On the examination of the data in the telephone/mobile and or on the computer, etc, prosecution would have to prove the same by cogent evidence.<br><b style=\"background-color: rgb(255, 255, 0);\">14.8.<span style=\"white-space:pre\">	</span>By providing of password, passcode or biometrics, there is no oral statement or a written statement being made by the accused like the Petitioner herein, therefore it can not be said to be testimonial compulsion.</b><br><span style=\"background-color: rgb(255, 255, 0);\">15. ANSWER TO QUESTION NO.8</span>:Would providing of password, passcode or Biometrics violate the right to privacy of a person providing the said password, passcode or Biometrics?<br>15.1.<span style=\"white-space:pre\">	</span>This aspect is to be considered in light of the principles propounded by the Hon’ble Apex Court in Justice Puttaswamy’s case supra. More so, in view of the fact that the data which could be available on the said electronic equipment being personal in nature could also be misused by the investigating agency and/or the investigating agency would come into possession of personal data which are held secret by that person which have nothing to do with the investigation at all more so since there cannot be a strict <br>compartmentalisation of data as personal or not personal in the said equipment belonging to a person or in the e-mail account.<br>15.2.<span style=\"white-space:pre\">	</span>Once the investigating agency has an access to a electronic equipment more particularly smart phones and/or laptops, the Investigating Officer has a free access to all data not only on the said equipment but also any cloud service that may be connected to the said equipment, which could include personal details, financial transactions, privileged communications and the like.<br>15.3.<span style=\"white-space:pre\">	</span>The rules which are applicable to physical document where a particular document could be classified as a privileged communication and/or strictly private and confidential cannot apply to the data which is stored on a smartphone or any other electronic equipment since once an investigating officer has an access to the said smartphone, electronic equipment or e-mail account, he would have complete access to the data.<br>15.4.<span style=\"white-space:pre\">	</span>Such data though may not be incriminatory, may be very private or secret to the person or such data could incriminate the said person in any particular offence.<br>15.5.<span style=\"white-space:pre\">	</span>The use of such data during the course of the investigation would not amount to a violation of the right to privacy and would come within the exceptions carved out in Justice Puttaswamy’s case supra, however, the disclosure, making public or otherwise in court proceedings would have to be determined by the concerned judge by passing a judicial order. In no case could such details or data be provided by the investigating officer to any third party during the course of investigation without the written permission of the court seized of the matter. The responsibility of safeguarding the information or data which could impinge on the privacy of the person will always be that of the investigating officer, if the same is found to have been furnished to any third party the investigation officer would be proceeded against for dereliction of duty or such other delinquency as provided.<br><b style=\"background-color: rgb(255, 255, 0);\">16. ANSWER TO POINT NO.9</b>:What steps could be taken if the accused or any other person connected with the investigation were to refuse to furnish a password, passcode or Biometrics despite issuance of a search warrant and or a direction to provide a password, passcode or Biometrics of that person?<br>16.1.<span style=\"white-space:pre\">	</span>Though not argued or contended this Court would also have to take into consideration  the possibility of the accused not co- operating inspite of above directions having been issued and/or providing apassword, passcode which is incorrect.<br>16.2.<span style=\"white-space:pre\">	</span>In the event of the accused not co-operating and not providing necessary password, passcode adverse inference could be drawn subject to the prosecution pointing out the nature of such adverse inference which could be drawn.<br>16.3.<span style=\"white-space:pre\">	</span>The second situation is even more dangerous inasmuch as the accused may provide a wrong password or passcode and or provide biometrics of a wrong person, and sometimes by way of the usage of such wrong password, passcode or biometrics for more times than one, the device could either get locked and/or the data on the said device and the e-mail account could be wiped out automatically because a wrong password, passcode or biometrics has been used multiple times. The Investigating agency therefore has to be aware of and careful of this possibility.<br>16.4.<span style=\"white-space:pre\">	</span>The accused in such a situation is therefore required to be given only one chance to provide the proper password, passcode or biometrics to open the smartphone and e- mail account.<br>16.5.<span style=\"white-space:pre\">	</span>In both the above situations, the Investigating Agency would also be at liberty to engage such specialised agency as may be required in order crack the password,  passcode or biometrics so as to have access to the smartphone and or the e-mail id. The accused cannot thereafter contest the methodology used by the Investigating Agency to access the information on the smartphone or e-mail account since the accused having been given an opportunity to co-operate and provide the password, passcode, or biometrics, has refused to co- operate and do so,<br>16.6. The rules of electronic device would apply to any data if sought to be made use of by the Investigating agency in a Court of Law. The Investigating agency would be at liberty to clone the smartphone and or hard disk of the smartphone, as also any data available on any cloud service to which the smartphone is connected to and make use of the same during the course of investigation and/or trial.<br>16.7.<span style=\"white-space:pre\">	</span>Similarly the Investigating agency would be at liberty to block the access to the e-mail accounts once opened by changing the password so that no one else apart from the designated officers would have access to the said smartphone, computer equipment or e- mail accounts. The data available on the said e-mail account could be downloaded and preserved, as also made use of by the Investigating agency for the investigation.<br>16.8.<span style=\"white-space:pre\">	</span>Thus the procedure that would have to be followed would be as under:<br>16.9.<span style=\"white-space:pre\">	</span>It would be required for the prosecution to approach the Court to seek a search warrant to search the smartphone and or e-mail account. Once a search warrant is issued, it is upto the Petitioner- accused to provide the password, passcode, biometrics etc.,<br>16.10. The investigating agency could also serve a notice on the accused indicating that in the event of the accused not furnishing the said password, passcode, biometrics etc., an adverse inference would be drawn against the accused as regards the aspects notified in the said notice. The accused can then,in order to avoid the adverse inference from being drawn, furnish the password, passcode or biometrics to the Investigating authorities.<br>16.11. In the event of the accused or any other person not providing the password, passcode or biometrics, on an application made by the prosecution, the court could direct the service  provider viz., manufacturer of the smartphone and/or e-mail service provider, to open or unlock the smartphone and/or email account to enable access to the said smartphone and/or email account.<br>16.12. In the event of the manufacturer and the service provider not facilitating the opening of the smartphone, email account or computer equipment, then the Court on an application being filed in that regard permit the Investigating Officer to hack into the smartphone and/or email account.<br>16.13. The investigating agency would be empowered to engage the services of such persons as may be required to hack into the smartphone and or e-mail account and make use of the data available therein, which would  be akin to breaking open a lock or door of the premises when the accused were to refuse to co-operate with the Investigating officer and open the door of locked premises.<br>16.14. In the event of the investigating agency is unsuccessful in hacking into the smartphone and or the e-mail account and during the course of such a procedure, if the data on the smartphone and or the e-mail account being destroyed then, the Investigating agency/prosecution would be free to rely upon the notice by which the accused was warned of adverse inference being drawn.<br><b style=\"background-color: rgb(255, 255, 0);\">17. ANSWER TO POINT NO.10</b>:What are the protection and safeguard that the Investigating Officer would have to take in respect of the smartphone and/or electronic equipment?<br>17.1.<span style=\"white-space:pre\">	</span>It is required for the Investigating Officer or the search team to carry out the search in a proper and scientific manner, more so since what has to be searched in the electronic equipment, smartphone or email account.<br>17.2.<span style=\"white-space:pre\">	</span>Apparently, there are no rules formulated by the police department regarding the manner of carrying out a search and/or for preservations of the evidence gathered during the said search in respect of smartphone, electronic equipment or email account.<br>17.3.<span style=\"white-space:pre\">	</span>It would be in the interest of all the stakeholders that detailed guidelines are prepared by the police department in relation to the same.<br>17.4.<span style=\"white-space:pre\">	</span>Pending such formulation, it would be required that the following minimum guidelines are implemented:<br>17.5.<span style=\"white-space:pre\">	</span>In the case of a personal computer or a laptop:<br>17.5.1. When carrying out a search of the premises, as regards any electronic equipment, Smartphone or e-mail account, the search team to be accompanied by a qualified Forensic Examiner.<br>17.5.2. When carrying out a search of the premises, the investigating officer should not use the computer or attempt to search a computer for evidence. The usage of the computer and/or search should be conducted by a properly authorized and qualified person, like a properly qualified forensic examiner.<br>17.5.3. At the time of search, the place where the computer is stored or kept is to be photographed in such a manner that all the connections of wires including power, network, etc., are captured in such photograph/s.<br>17.5.4. The front and back of the computer and/or the laptop while connected to all the peripherals to be taken.<br>17.5.5. A diagram should be prepared showing the manner in which the computer and/or the laptop is connected.<br>17.5.6. If the computer or laptop is in the power-off mode, the same should not be powered on.<br>17.5.7. If the computer is powered on and the screen is blank, the mouse could be moved and as and when the image appears on the screen, the photograph of the screen to be taken.<br>17.5.8. If the computer is powered on, the investigating officer should not power off the computer. As far as possible,  the investigating officer to secure the services of a computer forensic examiner to download the  data available in the volatile memory i.e., RAM since the said data would be lost on the powering down of the computer or laptop.<br>17.5.9. If the computer is switched on and connected to a network, the investigating officer to secure the services of a forensic examiner to capture the volatile net work data like IP address, actual net work connections, net work logs, etc.,<br>17.5.10. The MAC address also to be identified and secured.<br>17.5.11. In the unlikely event of the Forensic examiner not being available, then unplug the computer, pack the computer and the wires in separate faraday covers after labeling them.<br>17.5.12. In case of a laptop if the removal of the power cord does not shut down the laptop to locate and remove the battery.<br>17.5.13. If the laptop battery cannot be removed, then shut down the laptop and pack it in a faraday bag so as to block any communication to the said laptop since most of the laptops, nowadays have wireless communication enabled even when the laptop is in the stand by mode.<br>17.6.<span style=\"white-space:pre\">	</span>Seizure of networked devices: Apart from the above steps taken as regards seizure of the computer, laptop, etc., if the said equipment is connected to a network:<br>17.6.1. To ascertain as to whether the said equipment is connected to any remote storage devices or shared network drives, if so to seize the remote storage devices as also the shared network devices.<br>17.6.2. To seize the wireless access points, routers, modems, and any equipment connected to such access points, routers, modems which may some times be hidden.<br>17.6.3. To ascertain if any unsecured wireless network can be accessed from the location. If so identify the same and secure the unsecured wireless devices since the accused might have used the said unsecured wireless devices.<br>17.6.4. To ascertain who is maintaining the network and to identify who is running the network - get all the details relating to the operations of the network and role of the equipment to be seized from such network manager.<br>17.6.5. To obtain from the network manager, network logs of the machine to be searched and/or seized so as to ascertain the access made by the said machine of the net work.<br>17.7.<span style=\"white-space:pre\">	</span>Mobile devices:Mobile devices would mean an include smartphone, mobile phone, tablets GPS units, etc., during the course of seizure of any of the mobile devices, apart from the steps taken in respect of a computer and/or laptop, the following additional steps to be taken:<br>17.7.1. Prevent the device from communicating to network and/or receiving any wireless communication either through wifi or mobile data by packing the same in a faraday bag.<br>17.7.2. Keep the device charged throughout, since if the battery drains out, the data available in the volatile memory could be lost.<br>17.7.3. Look for slim-slots remove the sim card so as to prevent any access to the mobile network, pack the sim card separately in a faraday bag.<br>17.7.4. If the device is in power-off mode, the battery could also be removed and kept separately.<br>17.7.5. If the device is powered on, then put it in an aeroplane mode in android device or airplane mode in a IOS device.<br>17.8.<span style=\"white-space:pre\">	</span>In all the cases above, the seized equipment should be kept as far as possible in a dust- free environment and temperature controlled.<br>17.9.<span style=\"white-space:pre\">	</span>While conducting the search, the investigating officer to seize any electronic storage devices like CD, DVD, Blu-Ray, pen drive, external hard drive, USB thumb drives, solid-state drives etc., located on the premises, label and pack them separately in a faraday bag.<br>17.10. The computers, storage media, laptop, etc., to be kept away from magnets, radio transmitters, police radios etc., since they could have an adverse impact on the data in the said devices.<br>17.11. To carry out a search of the premises to obtain instructions manuals, documentation, etc., as also to ascertain if a password is written down somewhere since many a time person owning equipment would have written the password in a bok, writing pad or the like at the said location.<br>17.12. The entire process and procedure followed to be documented in writing from the time of entry of the investigation/search team into the premises until they exit.<br><b style=\"background-color: rgb(255, 255, 0);\">18. ANSWER TO POINT NO;11</b>:Whether the order dated 14.09.2020 passed by the Trial Court directing the Petitioner to co-operate with the investigating agency ad provide a password to open the smartphone and email account is proper?<br>18.1.<span style=\"white-space:pre\">	</span>The trial court in the present case has directed the Petitioner accused to co-operate with the Investigating agency and provide the password, passcode for the smartphone, as also for the e-mail account of the Petitioner, I am of the considered opinion that the examination of a smartphone or an e-mail account is in the nature of a search being carried out, such a search cannot be so carried out without a search warrant. The trial Court by merely directing the Petitioner to co-operate with the Investigating agency, the Petitioner cannot be forced or constrained to provide such a password, passcode, biometrics etc., for the purpose of opening of the smartphone and or an e-mail account, much less without recording reasons for the same. The process and procedure as discussed and detailed above would have to be followed.<br><b style=\"background-color: rgb(255, 255, 0);\">18.2. For all the aforesaid reasons the order dated 14.09.2020 passed by the trial directing the Petitioner to co-operate with the investigating agency and provide a password to open the smartphone and email account is not proper or legal and is therefore set aside. Liberty is, however, reserved to the prosecution to file necessary applications, which would be considered by the trial court in accordance with applicable law and discussion above</b><br><b style=\"background-color: rgb(255, 255, 0);\">19. ANSWER TO POINT NO;12</b>: Whether the order dated 23.09.2020 passed by the Trial Court directing the Petitioner to undergo a polygraph test violates the rights of the Petitioner under Article 20 of the Constitution of India?<br>19.1.<span style=\"white-space:pre\">	</span>The Trial Court, by its order dated 29.03.2020, had directed the administration of polygraph test on the Petitioner. This order was passed on an oral request without there being an application filed by the prosecution and no opportunity having been provided to either the Petitioner or his counsel. The Petitioner was also not heard on the same nor was his consent obtained by the trial Court before the order dated 23.09.2020  was passed.<br>19.2.<span style=\"white-space:pre\">	</span>Though it is contended by Sri. Veerana Tigadi learned Special prosecutor that the order date 23.09.202 onlydirected administration of a polygraph test and that no polygraph test would have been administered without the consent of the Petitioner; in my considered opinion, no such order could have been passed without having obtained the consent of an accused like the Petitioner.<br>19.3.<span style=\"white-space:pre\">	</span>In my considered opinion, there is no question of post-decisional hearing or consent, any consent of the accused would have to be obtained by the Court ordering the administration of polygraph test before directing so. The Apex Court in Selvi’s case (supra), the relevant paragraphs which has been extracted hereinabovehas categorically held that there cannot be an administration of a compulsive polygraph test which would also mean that no order for administration of polygraph test made without obtaining the consent of the person on whom it is administered.<br>19.4.<span style=\"white-space:pre\">	</span>Merely because an accused is silent, neither accepts or rejects the administration of polygraph test would also not amount to consent being provided by the accused. Such a consent has to be categorical without any doubt and be made after being informed and made aware of the implication of the polygraph test and effect thereof.<br>19.5.<span style=\"white-space:pre\">	</span>The Judgment of the Apex Court in Selvi’s case is categorical and clear about the aspects of the administration of polygraph test. The details of Law as laid down by the Apex Court in Selvi’s case (supra) would have to be followed by investigating agency, as also by the trial Court.<br>19.6.<span style=\"white-space:pre\">	</span>In the present case, the Petitioner having not consented to administration of a polygraph test and in fact having challenged the same, refusing the administration thereof, had categorically indicated that he does not wish to be subjected to a polygraph test, I am of the considered opinion that no polygraph test could be administered on the Petitioner.<br><b style=\"background-color: rgb(255, 255, 0);\">19.7. Hence, I answer the above question by holding that no polygraph test can be administered without obtaining the consent of the person to whom the polygraph test is to be administered.</b><br>19.8.An application if any for such polygraph test has to be served on the said person on whom the polygraph test is to be administered, as also on the lawyer of the said person if so appearing. The effect and impact of the polygraph test and any answers given during the conduct of the polygraph test has to be clearly made known to the said person. The consent in writing to be obtained from such person before directing the administration of the polygraph test. Mere silence of the said person would not amount to consent on behalf of such person. If a person were to refuse the administration of polygraph test, no such polygraph test could be administered and even if administered, the result of the said test would be void and cannot be considered by a Court of Law.<br><b style=\"background-color: rgb(255, 255, 0);\">20. ANSWER TO POINT NO.:13</b>: Whether the order dated 15.10.2020 passed by the Trial Court dismissing the Recall Application was in accordance with Law?<br>20.1.<span style=\"white-space:pre\">	</span>An application was filed by the accused to recall the order dated 23.09.2020 passed by the trial Court directing the petitioner to undergo a polygraph test.<br>20.2. On account of the answer given to Point No.12 above, I am of the considered opinion that the trial Court ought to have taken into consideration the decision of the Hon’ble Apex Court in Selvi’s case (supra) and once the trial Court had been informed and/or it was brought to the notice of the trial Court that on account of the decision of the Hon’ble Apex Court a polygraph test could not be conducted without a consent of the person who has to be subjected to such a test, the trial Court ought to have recalled its order rather than dismissing the same.<br><b style=\"background-color: rgb(255, 255, 0);\">21.ANSWER TO POINT NO.13: What order?</b><br>21.1.<span style=\"white-space:pre\">	</span>In view of the answers to the above question, the petition is partly allowed.<br>21.2.<span style=\"white-space:pre\">	</span>The order dated 14.09.2020 passed by the trial Court, directing the petitioner to furnish the password, passcode or Biometrics of his mobile phone and e-mail account is set-aside.<br>21.3.<span style=\"white-space:pre\">	</span>The order dated 23.09.2020 passed by the trial Court, directing the petitioner to undergo a polygraph test is set-aside. <br>21.4.<span style=\"white-space:pre\">	</span>The order dated 15.10.2020 passed on the recalling application does not survive for consideration.<br>21.5.<span style=\"white-space:pre\">	</span>Parties to bear their respective costs.<br><br><br><br></h4>', '37f9727951eb19330ec46814c5e1a94b.jpg', '8dd99a507097e3a1fd63cbc0e66be75f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-12', 1, '', '', '2021-03-14 15:21:17', '2021-03-14 17:09:03');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(582, '99oTc9bAPSl18PdOx64eRtd3T', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 319. Even persons not named in the FIR or named in the FIR but not charged or who have been discharged can be summoned. Supreme Court. 15 March 2021. ', '<h4>Sartaj Singh vs State of Haryana &amp; Anr.<br>Criminal Appeal 298-299 of 2021 decided on 15 March 2021.<br>Justice Dr. Dhananjaya Y. Chandrachud and Justice M. R. Shah.<br>Judgment Link:&nbsp; <a href=\"https://main.sci.gov.in/supremecourt/2020/27124/27124_2020_36_1503_26964_Judgement_15-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/27124/27124_2020_36_1503_26964_Judgement_15-Mar-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Questions framed</span>. 6.1.2 In&nbsp; &nbsp;the&nbsp; &nbsp;said&nbsp; &nbsp;case,&nbsp; &nbsp;the&nbsp; &nbsp;following&nbsp; &nbsp;five&nbsp; &nbsp;questions&nbsp; &nbsp;fell&nbsp; &nbsp;for consideration before this Court.<br>(i) What is the stage at which power under Section 319 CrPC can be exercised?<br>(ii) Whether the word “evidence” used in Section 319(1) CrPC could only mean evidence tested by cross examination or the court can exercise the power under the said provision even on the basis of the statement made&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;examination ­in ­chief&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;witness concerned?<br>(iii) Whether the word “evidence” used in Section 319(1) CrPC has been used in a comprehensive sense and includes the evidence collected during investigation or the word “evidence” is limited to the evidence recorded during trial?<br>(iv) What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?<br><span style=\"background-color: rgb(255, 255, 0);\">(v) Does the power under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?”</span><br><span style=\"background-color: rgb(255, 255, 0);\">HELD </span>6.2 Considering&nbsp; &nbsp;the&nbsp; &nbsp;law&nbsp; &nbsp;laid&nbsp; &nbsp;down&nbsp; &nbsp;by&nbsp; &nbsp;this&nbsp; &nbsp;Court&nbsp; &nbsp;in Hardeep Singh Hardeep Singh v. State of Punjab (2014) 3 SCC 92 and the observations and findings referred to and reproduced herein above, it emerges that (i) the Court can exercise the&nbsp; &nbsp;power&nbsp; &nbsp;under&nbsp; &nbsp;Section&nbsp; &nbsp;319&nbsp; &nbsp;CrPC&nbsp; &nbsp;even&nbsp; &nbsp;on&nbsp; &nbsp;the&nbsp; basis&nbsp; of&nbsp; the statement&nbsp; &nbsp;made&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;examination ­in­ chief&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;witness concerned and the Court need not wait till the cross ­examination of such a witness and the Court need not wait for the evidence against the&nbsp; &nbsp;accused&nbsp; &nbsp;proposed&nbsp; &nbsp;to&nbsp; &nbsp;be&nbsp; &nbsp;summoned&nbsp; to&nbsp; &nbsp;be&nbsp; &nbsp;tested&nbsp; &nbsp;by&nbsp; &nbsp;cross examination; and <span style=\"background-color: rgb(255, 255, 0);\">(ii) a person not named in the FIR or a person though named in the FIR but has not been charge­sheeted or a person who has been discharged can be summoned</span> under Section 319 CrPC, provided from the evidence (may be on the basis of the evidence&nbsp; &nbsp;collected&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;form&nbsp; &nbsp;of&nbsp; &nbsp;statement&nbsp; &nbsp;made&nbsp; &nbsp;in&nbsp; &nbsp;the examination ­in ­chief of the witness concerned), it appears that such person can be tried along with the accused already facing trial.<br>7. Applying the law laid down by this Court in the aforesaid decisions to the case of the accused on hand, we are of the opinion that learned Trial Court was justified in summoning the private respondents herein to face the trial as accused on the basis of the deposition of the appellant – injured eye witness.&nbsp; As held by this Court in the aforesaid decisions, the accused can be summoned on the basis of even examination ­in ­chief of the witness and the Court need not wait till his cross­ examination. If on the basis of the examination ­in­ chief of the witness the Court is satisfied that there is a prima facie case against the proposed accused, the Court may in exercise of powers under Section 319 CrPC array such a person as accused and summon him to face the trial.&nbsp; At this stage, it is<br>required to be noted that right from the beginning the appellant herein – injured eye witness, who was the first informant, disclosed the names of private respondents herein and specifically named them in the FIR.&nbsp; But on the basis of some enquiry by the DSP they were not charge­sheeted.&nbsp; What will be the evidentiary value of the enquiry report submitted by the DSP is another question.&nbsp; &nbsp;It is not that&nbsp; &nbsp;the&nbsp; &nbsp;investigating&nbsp; &nbsp;officer&nbsp; &nbsp;did&nbsp; &nbsp;not&nbsp; &nbsp;find&nbsp; &nbsp;the&nbsp; &nbsp;case&nbsp; &nbsp;against&nbsp; &nbsp;the private respondents herein&nbsp; and&nbsp; therefore they&nbsp; were not&nbsp; chargesheeted.&nbsp; In any case, in the examination ­in ­chief of the appellantinjured eye witness, the names of the private respondents herein are&nbsp; &nbsp;disclosed.&nbsp; &nbsp; &nbsp;It&nbsp; &nbsp;might&nbsp; &nbsp;be&nbsp; &nbsp;that&nbsp; &nbsp;whatever&nbsp; &nbsp;is&nbsp; &nbsp;stated&nbsp; &nbsp;in&nbsp; &nbsp;the examination ­in­ chief is the same which was stated in the FIR. The same is bound to be there and ultimately the appellant herein – injured eye witness is the first informant and he is bound to again state what was stated in the FIR, otherwise he would be accused of contradictions&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;FIR&nbsp; &nbsp;and&nbsp; &nbsp;the&nbsp; statement&nbsp; before&nbsp; &nbsp;the&nbsp; &nbsp;Court. Therefore, as such, the learned Trial Court was justified in directing to issue summons against the private respondents herein to face the trial.</h4>', '2ed898bf684d474c5878dab54ca67011.PNG', '2ee67fd7409e60c05b10ec4a1fbb912a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-15', 1, '', '', '2021-03-16 03:20:24', '2021-03-16 03:20:24'),
(583, 'Pl7G7BVOxdyMjPsfM6uddTvUG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act 1996.   Court may refuse to make the reference under Section 11 where the claims are ex facie time-barred. Supreme Court. 15 March 2021. ', '<h4>Secunderabad Cantonment Board vs M/s. B. Ramachandraiah &amp; Sons. </h4><h4>Civil Appeal 900 - 902 of 2021 decided on 15 March 2021. </h4><h4>Justice Rohinton Fali Nariman and Justice B.R. Gavai. </h4><h4>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2019/41986/41986_2019_33_1501_26961_Judgement_15-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/41986/41986_2019_33_1501_26961_Judgement_15-Mar-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:&nbsp; 16. The recent judgment of this Court in Bharat Sanchar Nigam Ltd. &amp; Anr. v. M/s Nortel Networks India Pvt. Ltd., delivered on 10.03.2021 in Civil Appeal Nos. 843-844 of 2021 has also considered the entire law on the subject. The first paragraph of the said judgment reads as follows:</h4><h4 style=\"margin-left: 25px;\">“1. The present Appeals raise two important issues for our consideration : (i) the period of limitation for filing an application under Section 11 of the Arbitration and Conciliation Act, 1996 (“the 1996 Act”); and (ii) whether the Court may refuse to make the reference under Section 11 where the claims are ex facie time-barred?”</h4><h4>17. Insofar as the first issue is concerned, after examining Article 137 of the Limitation Act, this Court held:</h4><h4 style=\"margin-left: 25px;\">“11. It is now fairly well-settled that the limitation for filing an application under Section 11 would arise upon the failure to make the appointment of the arbitrator within a period of 30 days’ from issuance of the notice invoking arbitration. In other words, an application under Section 11 can be filed only after a notice of arbitration in respect of the particular claim(s) / dispute(s) to be referred to arbitration [as contemplated by Section 21 of the Act] is made, and there is failure to make the appointment.<br>12. The period of limitation for filing a petition seeking appointment of an arbitrator/s cannot be confused or<br>conflated with the period of limitation applicable to the substantive claims made in the underlying commercial contract. The period of limitation for such claims is prescribed under various Articles of the Limitation Act, 1963. The limitation for deciding the underlying substantive disputes is necessarily distinct from that of filing an application for appointment of an arbitrator. T</h4><h4>21. Even otherwise, the claim made by the Respondent was also ex facie time barred. It is undisputed that final payments were received latest by the end of March 2003 by the Respondent. That apart, even assuming that a demand could have been made on account of price variation, such demand was made on 08.09.2003. Repeated letters were written thereafter by the Respondent, culminating in a legal notice dated 30.01.2010. Vide the reply notice dated 16.02.2010, it was made clear that such demands had been rejected. Even taking16.02.2010 as the starting point for limitation on merits, a period of three years having elapsed by February 2013, the claim made on merits is also hopelessly time barred. </h4><h4>22. For all these reasons, the appeals are allowed and the impugned judgment of the High Court dated 20.08.2019 is set aside.&nbsp;</h4>', '79f7907070b8f1a7d941f0befd978655.PNG', '937fe533e5c46cea299bbae6b03f95de.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-15', 1, '', '', '2021-03-16 03:47:39', '2021-03-16 03:47:39'),
(584, 'MOe2Xk6v8cuwZ3Q2MoSFCpJHM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Insolvency Bankruptcy Code. A person who is ineligible under Section 29A of IBC to submit a resolution plan is also barred from proposing a scheme of compromise and arrangement under Section 230 of the Companies Act. Supreme Court. 15 March 2021. ', '<h4>Arun Kumar Jagatramka vs Jindal Steel and Power Ltd. &amp; Anr. </h4><h4>Civil Appeal 9664 of 2019 and connected matter&nbsp;<span style=\"font-size: 1.3125rem;\">decided on 15 March 2021.</span></h4><h4>Justice Dr Dhananjaya Y Chandrachud and Justice M R Shah</h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/43676/43676_2019_36_1501_26964_Judgement_15-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/43676/43676_2019_36_1501_26964_Judgement_15-Mar-2021.pdf</a></h4><h4>The judgment has been divided into the following sections to facilitate analysis:</h4><h4>A. Factual Background</h4><h4>A.1 Civil Appeal 9664 of 2019</h4><h4>A.2 Civil Appeal 2719 of 2020</h4><h4>A.3 Liquidation Process Regulations, 2016</h4><h4>A.4 Article 32 Petition</h4><h4>B Issues</h4><h4>C Submissions</h4><h4>D Analysis of the Legal Framework</h4><h4>D.1 Ineligibility during the resolution process and liquidation</h4><h4>D.2 Interplay : IBC liquidation and Section 230 of the Act of 2013</h4><h4>D.3 The ‘Clean Slate’</h4><h4>D.4 Constitutional Validity of Regulation 2B - Liquidation Process</h4><h4>Regulations</h4><h4>E Epilogue</h4><h4><span style=\"background-color: rgb(255, 255, 0);\"></span></h4><h4>F Conclusion</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:&nbsp;1 By its judgment dated 24 October 2019, the National Company Law Appellate Tribunal held that a person who is ineligible under Section 29A of the Insolvency Bankruptcy Code, 2016 to submit a resolution plan, is also barred from proposing a scheme of compromise and arrangement under Section 230 of the Companies Act, 2013. The judgment was rendered in an appeal filed by Jindal Steel and Power Limited6, an unsecured creditor of the corporate debtor, Gujarat NRE Coke Limited. The appeal was preferred against an order passed by the National Company Law Tribunal in an application under Sections 230 to 232 of the Act of 2013, preferred by Mr Arun Kumar Jagatramka, who is a promoter of GNCL. The NCLT had allowed the application and issued directions for convening a meeting of the shareholders and creditors. In its decision dated 24 October 2019, the NCLAT reversed this decision and allowed the appeal by JSPL. The decision of the NCLAT dated 24 October 2019 is challenged in the appeal before this Court.<br>5 The IBC was amended by the Insolvency and Bankruptcy Code (Amendment) Act, 2018. Section 29A which was inserted with retrospective effect from 23 November 2017 provides a list of persons who are ineligible to be resolution applicants. Sub-section (g) of Section 29A disqualifies a person from being a resolution applicant if they have been a promoter or in the management or control of a corporate debtor in which a preferential transaction, undervalued transaction, extortionate credit transaction or fraudulent transaction has taken place and in respect of which an order has been made by the NCLT under the&nbsp; IBC. A second amendment was made to various provisions of IBC, including Section 29A, under the Insolvency and Bankruptcy Code (Second Amendment) Act, 2018, effective from 6 June 2018. A proviso was added to sub-Section (g) of Section 29A.&nbsp;<br>22 Writ Petition (Civil) No 269 of 2020 has been filed by Mr Arun Kumar Jagatramka, also the appellant in the First Appeal, assailing the notifications dated 25 July 2019 and 6 January 2020 issued by the IBBI, through which it inserted Regulation 2B into the Liquidation Process Regulations, and subsequently amended it. As the petitioner, he contends that Regulation 2B is ultra vires the IBC and the Act of 2013, and also violates Articles 14, 19 and 21 of the Constitution. <span style=\"background-color: rgb(255, 255, 0);\"><b>Challenge to Regulation 2B turned down.</b></span>&nbsp;</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">91. Based on the above analysis, we find that the prohibition placed by the Parliament in Section 29A and Section 35(1)(f) of the IBC must also attach itself to a scheme of compromise or arrangement under Section 230 of the Act of 2013, when the company is undergoing liquidation under the auspices of the IBC. As such, Regulation 2B of the Liquidation Process Regulations, specifically the proviso to Regulation 2B(1), is also constitutionally valid. For the above reasons, we have come to the conclusion that there is no merit in the appeals and the writ petition. The civil appeals and writ petition are accordingly dismissed. </b></h4><h4><br></h4>', '9193519084019867c55eb10cb5b87dbc.PNG', '50f04110b21893d77420edb1b539a742.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-15', 1, '', '', '2021-03-16 04:18:22', '2021-03-16 04:25:10'),
(585, 'rjcU8cfxHyQk0N5PqxAurtpJy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Stamp Act Stamp 1957. Stamp duty can NOT be levied on interest portion when an instrument-including Arbitration award-is registered. Karnataka High Court.', '<h4>Volvo Group India Private Limited vs The Deputy Commissioner of Stamps and District Registrar. </h4><h4>Writ Petition 42926 of 2017 decided on 16 January 2021.&nbsp;</h4><h4>Justice P.S.Dinesh Kumar.&nbsp;</h4><h4> </h4><h4><br></h4><h4></h4><h4>2.<span style=\"white-space: pre;\"> </span>Briefly stated the facts of the case are, petitioner obtained an award dated May 21, 2012 from the Arbitral Tribunal ....against Karnataka State Road Transport Corporation.&nbsp;The Arbitral Tribunal held that petitioner was entitled to receive Rs.3,51,12,209.63 ps. with interest at 12% p.a. from April 6, 2010.&nbsp; Accordingly,&nbsp; it&nbsp; directed KSRTC to pay Rs.4,40,65,822.63 ps. (including interest up&nbsp; to the date of the award) together with interest at 12% p.a. on the determined amount till the date of payment. In addition, the Tribunal also allowed petitioner\'s claim for Rs.2,70,48,509.94 ps. towards reimbursement of tax on works contract payable with interest at 12% p.a. from the date of the Award till the date of payment.</h4><h4>5. Petitioner submitted a representation through its Advocate on March 30, 2017 enclosing a copy of the award with a request to determine and inform the Stamp duty payable on the Award to enable petitioner to pay the same.<br>6. By the impugned order dated August 4,&nbsp; 2017, the District Registrar and the Deputy Commissioner of Stamps<span style=\"white-space:pre\">	</span>has<span style=\"white-space:pre\">	</span>directed petitioner to pay stamp<span style=\"white-space:pre\">	</span>duty<span style=\"white-space:pre\">	</span>of Rs.1,09,65,400/-. Hence, this writ petition.<br>11. The operative portion of the Award is unambiguous. Learned Arbitrator has directed the KSRTC to pay money under two heads. A sum of&nbsp; Rs.4,40,65,822.63 ps. (which is inclusive of interest till the date of Award) is towards petitioner\'s claim towards Annual Maintenance Contract and Rs.2,70,48,509.94 ps. towards reimbursement of tax. The total works out to Rs.7,11,14,332.57 ps.&nbsp; It is&nbsp; the case of both petitioner as also the respondent that the chargeable Stamp duty is 5% under Article 11 of the Stamp Act.<br><b style=\"background-color: rgb(255, 255, 0);\">12. The issues which need to be decided are with regard to the correct Award amount, whether interest can&nbsp; be added and imposition of penalty.<br></b>14. Re: Stamp Duty on interest. Section 23 of the Stamp Act makes it clear that where interest is expressly made payable, the instrument shall not be chargeable with duty higher than that with which&nbsp; it&nbsp; would have been chargeable if there was no mention about the interest. <b style=\"background-color: rgb(255, 255, 0);\">Therefore, interest component cannot be considered while calculating the Stamp duty.</b><br>15. Re: Penalty. The representation as per Annexure-E submitted on petitioner\'s behalf on March 30, 2017 to the District&nbsp; Registrar.&nbsp;<br>16. Chapter-III of the Stamp Act deals with the procedure when a person applies to have the opinion of the Officer as to the duty chargeable on the instrument. It applies in both cases where an instrument is previously stamped or not. Under Section 31(1) of the Stamp Act, the Deputy Commissioner is required to determine&nbsp; the&nbsp; duty. The District Registrar has clearly misdirected himself by applying Section 39(2) of the Stamp Act and imposing the penalty. The said provision falls under Chapter-IV which deals with instruments not duly stamped. In this case, petitioner has sought the opinion of the Officer with regard&nbsp; to the duty payable and therefore, the respondent ought to have dealt the matter under Chapter-III of the Stamp Act and simply conveyed the stamp duty payable to the petitioner.<br>19. In view of the above, following:<br>ORDER<br>(a)<span style=\"white-space:pre\">	</span>Writ petition is allowed.<br>(b)<span style=\"white-space:pre\">	</span>The impugned order dated August 4, 2017 as per Annexure-A is quashed.<br>(c)<span style=\"white-space:pre\">	</span>The respondent shall calculate Stamp Duty on Rs.7,11,14,332.57 ps. at 5% and collect the same from petitioner.<br></h4>', 'ec483ce68f0d0250827640927952ef57.jpeg', '2c4e3c538353346c2bcb4f49117f5a98.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-20', 1, '', '', '2021-03-17 01:27:49', '2023-01-20 12:03:23'),
(2585, '7qpzWM0zmqknMfzzUeEI4ezoA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Children adopted by a widow of a government servant, after the death of the government servant, are not entitled to receive family pension. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shri Ram Shridhar Chimurkar Vs Union of India and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 386 of 2023 decided on 17 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.M. Joseph and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Succinctly stated, the facts giving rise to the instant appeal\r\nare as under:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.1. That Shridar Chimurkar was serving as a Superintendent\r\nin the office of Respondent No. 2, Deputy Director and HO <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">National Sample Survey Organization, Field Zonal Office,\r\nNagpur, and retired on attaining superannuation in the\r\nyear 1993. He died issueless in the year 1994, leaving\r\nbehind his wife, namely, Maya Motghare who thereafter\r\nadopted Sri Ram Shridhar Chimurkar, the Appellant herein\r\nas her son on 6th April, 1996, i.e., nearly two years after the\r\ndeath of Shridar Chimurkar.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.3. In the aforesaid background, the Appellant claimed family\r\npension payable to the family of the deceased government\r\nemployee, Shridar Chimurkar, from the Respondents, by\r\naddressing a letter in this regard, dated 18th January, 2000.\r\nThe claim of the Appellant was rejected by the Respondents\r\non the ground that children adopted by a widow of a\r\ngovernment servant, after the death of the government\r\nservant, would not be entitled to receive family pension as\r\nper Rule 54 (14) (b) of the Central Civil Services (Pension)\r\nRules, 1972 (hereinafter referred to as “CCS (Pension) <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rules” for the sake of brevity). The Respondents’ decision\r\nwas communicated to the Appellant by way of letter dated\r\n23rd February, 2000.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Having regard to the submissions of the learned Senior\r\nCounsel and learned Counsel for the respective parties, the\r\nfollowing points would arise for our consideration:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i. Whether a child adopted by a widow of a government servant,\r\nsubsequent to the death of the government servant would be\r\nincluded within the scope of the definition of ‘family’ under\r\nRule 54 (14) (b) of the CCS (Pension) Rules, and would\r\ntherefore be entitled to receive family pension payable under\r\nthe said Rules?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ii. What order? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Section 8 of HAMA Act, 1956 pertains to the capacity of a\r\nfemale Hindu to take a son or a daughter in adoption. The said\r\nprovision permits a female Hindu who is not a minor or of\r\nunsound mind, to take a son or daughter in adoption to herself, in\r\nher own right. The provision requires that a female Hindu who has\r\na husband, shall not adopt except with the express consent of her\r\nhusband. However, no such pre-condition is applicable in relation\r\nto a Hindu widow; a divorced female Hindu; or a female Hindu\r\nwhose husband has, after marriage, finally renounced the world or\r\nhas been declared by a Court of competent jurisdiction to be of\r\nunsound mind</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Having acknowledged the consequences of adoption under\r\nHindu Law, it is necessary to highlight at this juncture that the\r\nsaid provisions of the HAMA Act, 1956 determine the rights of a\r\nson adopted by a Hindu widow only vis-à-vis his adoptive family.\r\nRights and entitlements of an adopted son of a Hindu widow, as\r\navailable in Hindu Law, as against his adoptive family, cannot\r\naxiomatically be held to be available to such adopted son, as\r\nagainst the government, in a case specifically governed by extant\r\npension rules. The provisions of the HAMA Act, 1956, as discussed\r\nabove, relate generally to the capacity of the female Hindu to take\r\na son or daughter in adoption and the effects that follow such an\r\nadoption. The said provisions do not lend much assistance in the\r\ninstant case which does not pertain to the rights of the adoptee\r\nsuch as the Appellant herein under Hindu Law, but to his rights\r\nand entitlements under the CCS (Pension) Rules. There exists a\r\nvital difference between the rights of an adopted son under Hindu\r\nLaw and his rights to draw family pension, which creates a burden\r\non the public exchequer. It is therefore necessary to determine the\r\nrights and entitlements of the Appellant having regard to Rule 54\r\n(14) (b) of the CCS (Pension) Rules.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11.1. The use of the phrase “in relation to” in statutes is with a\r\nview to bring one person or thing into association or\r\nconnection with another person or thing. The direct or\r\nindirect nature of such association or connection depends\r\non the context. In Rule 54(14)(b) of the CCS (Pension) Rules,\r\nthe phrase “in relation to a government servant” would\r\nindicate that the categories of persons listed thereunder,\r\nsuch as wife, husband, judicially separated wife or\r\nhusband, son or unmarried daughter who has not attained\r\nthe age of twenty-five years, adopted son or daughter, etc.\r\nare sought to be brought into association with the deceased\r\ngovernment servant. The context requires that association\r\nor connection of such persons with the deceased <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">government servant must be direct and not remote. The\r\nsaid Rule requires that the family member must have a\r\nclose nexus with the deceased government servant, and\r\nmust have been dependent on him during his lifetime.\r\nTherefore, a son or daughter adopted by the widow of a\r\ndeceased government servant, after the death of the\r\ngovernment servant, could not be included within the\r\ndefinition of ‘family’ under Rule 54(14)(b) of the CCS\r\n(Pension) Rules.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12.1. The cannon of construction described in the principle,\r\nNocitur a Sociis, may be applied to the present case. The\r\nsaid principle posits that the meaning of a phrase must be\r\nconstrued having regard to the words immediately\r\nsurrounding it. In the present case, the heirs listed under\r\nRule 54(14)(b) of the CCS (Pension) Rules are the\r\nimmediate dependents of the deceased government\r\nservant. Therefore, persons who were not dependant on\r\nthe government servant prior to his death cannot be held\r\nto be included in the definition of ‘family’ under Rule\r\n54(14)(b) of the CCS (Pension) Rules.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">13. Further, we are unable to find favour with the argument of\r\nthe learned Counsel for the Appellant that since the bar contained\r\nin Rule 54(14)(b) of the CCS (Pension) Rules against children born\r\nor adopted after retirement, seeking family pension, was removed\r\nby way of the subsequent amendments to the provision, children\r\nadopted at any time after retirement of the government servant,\r\nincluding children adopted by the widow of the government\r\nservant after his death ought to be included under the definition\r\nof ‘family’ for the purpose of granting family pension. The\r\nprovision could not be as expansive as suggested by the learned\r\nCounsel for the Appellant. It is necessary that the scope of the\r\nbenefit of family pension be restricted only to sons or daughters\r\nlegally adopted by the government servant, during his/her\r\nlifetime. The definition of ‘family’ is narrowly worded under the\r\nCCS (Pension) Rules, in the specific context of the entitlement to\r\n‘family pension’ and in relation to the government servant.\r\nTherefore, the word “adoption” in Rule 54(14)(b)(ii) of the CCS\r\n(Pension) Rules, in the context of grant of family pension, must be\r\nrestricted to an adoption made by a government servant during\r\nhis/her lifetime and must not be extended to a case of adoption\r\nmade by a surviving spouse of the government servant after\r\nhis/her death. This is because the object of the provision is to\r\nlend succour to a son till he attains the age of twenty-five years </span><span style=\"font-size: 12pt;\">and unmarried or widowed or divorced daughter; similarly to the\r\nadopted son or unmarried adopted daughter when such an\r\nadoption had been made by the government servant during\r\nhis/her lifetime.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>14. Further, a case where a child is born to the deceased\r\ngovernment servant after his death has to be contrasted with a\r\ncase where a child is adopted by the widow of a government\r\nservant after his death. The former category of heirs are covered\r\nunder the definition of family since such a child would be a\r\nposthumous child of the deceased government servant. The\r\nentitlement of such a posthumous child is wholly distinct from a\r\nchild being adopted subsequent to the demise of the government\r\nservant by the surviving spouse. The reason for the same is not far\r\nto see. This is because the deceased government servant would\r\nhave had no relationship with the adopted child which would have\r\nbeen adopted subsequent to his demise, as opposed to a\r\nposthumous child. Therefore, the definition of the word “family” in\r\nrelation to a government servant means various categories of\r\npersons coming within the nomenclature of the word “family” and\r\nall persons who would have had a familial relationship with the\r\ngovernment servant during his lifetime. Any other interpretation\r\nwould lead to abuse of the provision in the matter of grant of\r\nfamily pension.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. It is also observed that the decision of this Court in\r\nVijayalakshmamma would not aid the case of the Appellant. The\r\nsaid case is inapplicable to the facts of the present case for the\r\nreason that the said case pertains to the right of a widow to adopt\r\nand the right of inheritance of a child so adopted. The present case\r\nis concerned only with the definition of ‘family’ under the CCS\r\n(Pension) Rules. The said definition is a restrictive and specific one\r\nand cannot be expanded to take within its sweep, all heirs, as\r\nprovided under Hindu law, or other personal laws. It is trite that in\r\nconstruing a word in a statute, caution has to be exercised in\r\nadopting a meaning ascribed to that word or concept in another\r\nstatute.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. In light of the reasons assigned hereinabove, the present\r\nappeal is liable to be dismissed and is, accordingly, dismissed. The\r\njudgment of the High Court of Judicature at Bombay, dated 30th\r\nNovember, 2015, is hereby affirmed.\r\nParties to bear their respective costs. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8550a056ed2c5acb1b6477ced82f76c4.jpeg', '97f1d232f1c9a916f136c600bfc5481d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-21', 1, '', '', '2023-01-20 12:51:45', '2023-01-21 03:22:16'),
(586, 'EvnhnOaqqYCMF9msj71YEAgWn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Stamp Act 1957. Sections 31 and 32. Adjudication as to stamps. District Registrar can NOT impound and levy penalty on a document submitted for adjudication. He can only determine the stamp duty payable. Karnataka High Court.', '<h4>Volvo Group India Private Limited vs The Deputy Commissioner of Stamps and District Registrar.<br><br></h4><h4>Writ Petition 42926 of 2017 decided on 16 January 2021.&nbsp;</h4><h4><span style=\"font-size: calc(1.275rem + 0.3vw); font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Justice P.S.Dinesh Kumar.&nbsp;</span></h4><h4><br></h4><h4>2.<span style=\"white-space:pre\">	</span>Briefly stated the facts of the case are, petitioner obtained an award dated May 21, 2012 from the Arbitral Tribunal ....against Karnataka State Road Transport Corporation. The Arbitral Tribunal held that petitioner was entitled to receive Rs.3,51,12,209.63 ps. with interest at 12% p.a. from April 6, 2010.&nbsp; Accordingly,&nbsp; it&nbsp; directed KSRTC to pay Rs.4,40,65,822.63 ps. (including interest up&nbsp; to the date of the award) together with interest at 12% p.a. on the determined amount till the date of payment. In addition, the Tribunal also allowed petitioner\'s claim for Rs.2,70,48,509.94 ps. towards reimbursement of tax on works contract payable with interest at 12% p.a. from the date of the Award till the date of payment.<br><br></h4><h4>5. Petitioner submitted a representation through its Advocate on March 30, 2017 enclosing a copy of the award with a request to determine and inform the Stamp duty payable on the Award to enable petitioner to pay the same.<br><br></h4><h4>6. By the impugned order dated August 4,&nbsp; 2017, the District Registrar and the Deputy Commissioner of Stamps has directed petitioner to pay stamp duty<span style=\"white-space:pre\">	</span>of Rs.1,09,65,400/-. Hence, this writ petition.<br><br></h4><h4>11. The operative portion of the Award is unambiguous. Learned Arbitrator has directed the KSRTC to pay money under two heads. A sum of&nbsp; Rs.4,40,65,822.63 ps. (which is inclusive of interest till the date of Award) is towards petitioner\'s claim towards Annual Maintenance Contract and Rs.2,70,48,509.94 ps. towards reimbursement of tax. The total works out to Rs.7,11,14,332.57 ps.&nbsp; It is&nbsp; the case of both petitioner as also the respondent that the chargeable Stamp duty is 5% under Article 11 of the Stamp Act.<br><br></h4><h4>12. The issues which need to be decided are with regard to the correct Award amount, whether interest can&nbsp; be added and imposition of penalty.<br><br></h4><h4>14. Re: Stamp Duty on interest. Section 23 of the Stamp Act makes it clear that where interest is expressly made payable, the instrument shall not be chargeable with duty higher than that with which&nbsp; it&nbsp; would have been chargeable if there was no mention about the interest. Therefore, interest component cannot be considered while calculating the Stamp duty.<br><br></h4><h4>15. Re: Penalty. The representation as per Annexure-E submitted on petitioner\'s behalf on March 30, 2017 to the District&nbsp; Registrar.&nbsp;<br><b style=\"background-color: rgb(255, 255, 0);\"><br></b></h4><h4><b style=\"background-color: rgb(255, 255, 0);\">1</b><b style=\"background-color: rgb(255, 255, 0);\">6. Chapter-III of the Stamp Act deals with the procedure when a person applies to have the opinion of the Officer as to the duty chargeable on the instrument. It applies in both cases where an instrument is previously stamped or not. Under Section 31(1) of the Stamp Act, the Deputy Commissioner is required to determine&nbsp; the&nbsp; duty. The District Registrar has clearly misdirected himself by applying Section 39(2) of the Stamp Act and imposing the penalty. The said provision falls under Chapter-IV which deals with instruments not duly stamped. In this case, petitioner has sought the opinion of the Officer with regard&nbsp; to the duty payable and therefore, the respondent ought to have dealt the matter under Chapter-III of the Stamp Act and simply conveyed the stamp duty payable to the petitioner.</b><br><br></h4><h4>19. In view of the above, following:<br>ORDER<br>(a)<span style=\"white-space:pre\">	</span>Writ petition is allowed.<br><br></h4><h4>(b)<span style=\"white-space:pre\">	</span>The impugned order dated August 4, 2017 as per Annexure-A is quashed.<br><br></h4><h4>(c)<span style=\"white-space:pre\">	</span>The respondent shall calculate Stamp Duty on Rs.7,11,14,332.57 ps. at 5% and collect the same from petitioner.</h4>', '6075cc67132665c038cfa81c4176fac5.jpeg', 'f809b892499e5bb426e6b7acf3579d07.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-07', 1, '', '', '2021-03-17 01:45:45', '2023-02-07 10:50:44'),
(587, 'f0fFd6VuEpt1HLNEt7yij3s38', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka SC-ST PTCL Act. Application for resumption of land after sale with prior permission NOT maintainable. Alternative appeal remedy not a bar for Writ Petition against illegal order of Assistant Commissioner. Karnataka High Court.', '<div class=\"WordSection1\">\r\n\r\n<h4 style=\"text-align: left; margin-top: 3.95pt; margin-right: 56pt; margin-bottom: 0.0001pt;\">Prakashnath@Shekarappa vs The State of Karnataka and others. </h4><h4 style=\"text-align: left; margin-top: 3.95pt; margin-right: 56pt; margin-bottom: 0.0001pt;\">Writ Petition 23664 of 2017 decided on 21 January 2021. </h4><h4 style=\"text-align: left; margin-top: 3.95pt; margin-right: 56pt; margin-bottom: 0.0001pt;\"><span style=\"font-size: calc(1.275rem + 0.3vw); font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Justice R. Devdas. </span></h4><h4 style=\"text-align: left; margin-top: 3.95pt; margin-right: 56pt; margin-bottom: 0.0001pt;\"> </h4><h4 style=\"text-align: left; margin-top: 3.95pt; margin-right: 56pt; margin-bottom: 0.0001pt;\"><br></h4><h4 style=\"text-align: left; margin-top: 3.95pt; margin-right: 56pt; margin-bottom: 0.0001pt;\">The writ petitioner is calling in question the validity and correctness, including the authority of the 2nd respondent- Assistant Commissioner to entertain an application under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978.<br>2. ..., the Deputy Commissioner passed an Official Memorandum dated 05.09.2006 at  Annexure-A,  indicating  that in terms of the permission granted by the State Government, respondents No.3 to 5 are permitted to transfer the property in favour of respondent No.6, subject to the conditions imposed therein.<br><br></h4><h4 style=\"text-align: left; margin-top: 3.95pt; margin-right: 56pt; margin-bottom: 0.0001pt;\">3. Consequent to the said permission respondents No.3 to 5 executed an absolute  sale  deed dated 16.09.2006, in favour of respondent No.6 for valuable sale consideration of Rs.46,00,000/-. ...the lands were converted from agricultural to non- agricultural purposes, by an order of the  Deputy  Commissioner. Curiously, respondents No. 3 to 5 approached the Assistant Commissioner on 20.02.2016 by filing an application under Section 5 of the PTCL Act, seeking  resumption and restoration of the lands in their favour. The Assistant Commissioner proceeded to  pass  the  impugned order dated 28.07.2016, declaring that the sale deeds dated 16.09.2006 and 26.10.2010 are null and void and  consequently, directed resumption and restoration of the land  in favour of respondents No.3 to 5 herein. The Assistant Commissioner has also directed restoration of the names of respondents No.3 to 5 in the revenue records.<br><b style=\"background-color: rgb(255, 255, 0);\"><br></b></h4><h4 style=\"text-align: left; margin-top: 3.95pt; margin-right: 56pt; margin-bottom: 0.0001pt;\"><b style=\"background-color: rgb(255, 255, 0);\">10. On the question of alternative remedy, as rightly submitted by the learned Counsel for the petitioner, when an order without jurisdiction is challenged before this Court under the writ jurisdiction, such writ petitions cannot be  dismissed  on the ground of availability of alternative efficacious remedy. Since the challenge raised by the petitioner is to the very jurisdiction and authority of the Assistant Commissioner, this writ petition cannot be dismissed on the ground  of availability of alternative remedy.<br></b><br></h4><h4 style=\"text-align: left; margin-top: 3.95pt; margin-right: 56pt; margin-bottom: 0.0001pt;\">11. An application under Section 5 of the PTCL Act, could be entertained by the Assistant Commissioner if he is satisfied that the transfer of any granted land is null and void under sub-section (1) of Section 4 of the PTCL Act.<br><br></h4><h4 style=\"text-align: left; margin-top: 3.95pt; margin-right: 56pt; margin-bottom: 0.0001pt;\">13. A plain reading of the provision makes it clear that if  a land granted in favour of persons belonging to Scheduled Caste/Scheduled tribe community is transferred in contravention of the terms of the grant of such land or the law providing for such grant or in contravention of sub-section (2) of section 4, such applications could be entertained by  Assistant Commissioner. In the present case, admittedly prior permission as required under Section 4(2) has been obtained  by respondents No.3 to 5 at the instance of the sixth respondent. The basic contention of respondents No.3 to 5 before the Assistant Commissioner is that there has been violation of one of the conditions imposed in the Official Memorandum dated 05.09.2006. It is  therefore  clear  that even according to respondents No.3 to 5, there is no violation  of the terms of the grant and that permission is taken from   the Government in terms of sub-section (2) of Section 4. The Assistant Commissioner could not have therefore entertained the application having been apprised in the application  that  the allegation made by respondents No.3 to 5 is that there has been violation of the conditions imposed in the official memorandum and not the provisions as contained in Section 4 of the Act. In that view of the matter, it is obvious that the Assistant Commissioner had no authority to deal with the application filed by respondents No.3 to 5 herein.<br><br></h4><h4 style=\"text-align: left; margin-top: 3.95pt; margin-right: 56pt; margin-bottom: 0.0001pt;\">14. ....If a quasi-judicial authority exceeds the  powers vested under the enactment,  this Court is required to use its extraordinary  jurisdiction  under Article 226 of the Constitution of India to strike down such unauthorized action. Here is a clear case of exceeding of the jurisdiction and authority of the Assistant Commissioner in entertaining the application <br><br></h4><h4 style=\"text-align: left; margin-top: 3.95pt; margin-right: 56pt; margin-bottom: 0.0001pt;\">17. For the foregoing reasons, the writ petition is allowed. The impugned order dated 28.07.2016 at Annexure ‘H’ and the consequential order dated 26.04.2017 at Annexure ‘K’  directing re-entry of  the names of respondents No.3 to 5   in the revenue records are hereby quashed and set aside. Further, the notice dated 15.05.2017 issued by the seventh respondent-Commission at Annexure ‘N’ is also quashed and  set aside.<br></h4></div>', '90d29b92ca135a5f617dc72a7c5e5b57.jpeg', 'e8181eb3f22e2029eb462594767c3e4f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-19', 1, '', '', '2021-03-17 02:08:43', '2023-01-19 08:49:27'),
(588, 'MOJHpZmI3HJffPNyUjklIaGRT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Consumer Protection Act 1986 and 2019. Proceedings instituted before commencement of 2019 Act on 20 July 2020 would continue before the forums corresponding to 1986 Act and not to be transferred in terms of 2019 Act. Supreme Court. 16 March 2021', '<h4>Neena Aneja and another vs Jai Prakash Associates Ltd. Civil Appeal 3766 - 3767 of 2020 decided on 16 March 2021. Justice Dr Dhananjaya Y Chandrachud and Justice M R Shah. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/24527/24527_2020_36_1501_26993_Judgement_16-Mar-2021.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">https://main.sci.gov.in/supremecourt/2020/24527/24527_2020_36_1501_26993_Judgement_16-Mar-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Question for consideration</span>: 3. The issue which arises in the appeals is whether a complaint which was filed and registered under the Act of 1986, before the new Act of 2019 came into force, has to be entertained under the provisions of the erstwhile legislation.</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">F Summation</b><br>71. For the above reasons, we have come to the conclusion that proceedings instituted before the commencement of the Act of 2019 on 20 July 2020 would continue before the fora corresponding to those under the Act of 1986 (the National Commission, State Commissions and District Commissions) and not be transferred in terms of the pecuniary jurisdiction set for the fora established under the Act of 2019. <br>(iii) All proceedings instituted before 20 July 2020 under the Act of 1986 shall continue to be heard by the fora corresponding to those designated under the Act of 1986 as explained above and not be transferred in terms of the new pecuniary limits established under the Act of 2019.</h4><p><br></p>', '154a1a4ce145ff9b747ee9c239f0791a.PNG', 'fe42833c1a453235870de10c7d5d5cca.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-16', 1, '', '', '2021-03-17 23:05:44', '2021-03-17 23:11:19');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(589, 'LHjNjb930pySTab1tIhrWFApb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Child custody and matrimonial disputes. Family courts cannot act in a tearing hurry at the insistence of the parties disregarding mandatory  statutory procedural safeguards and principles of natural justice. Supreme Court. 17 March 2021. ', '<h4>Aman Lohia vs Kiran Lohia. </h4><h4>Transferred Case 25 of 2021 decided on 17 March 2021. </h4><h4>Justice A.M. Khanwilkar, Justice B.R. Gavai and Justice Krishna Murari. </h4><h4>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2021/2645/2645_2021_35_1501_27021_Judgement_17-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/2645/2645_2021_35_1501_27021_Judgement_17-Mar-2021.pdf&nbsp;</a></h4><h4>Relevant paragraphs:&nbsp;28. The Family Courts came to be established under the 1984 Act.&nbsp; Section 7 specifies the jurisdiction of the Family Court and about the nature of claims to be adjudicated by it in the form of suits&nbsp; &nbsp;and&nbsp; &nbsp;proceedings delineated in the explanation in subsection (1).&nbsp; Section 10 predicates about the procedure generally. The provisions of the CPC are made applicable for resolution of disputes falling under the 1984 Act.&nbsp; The Family Court is deemed to be a Civil Court having all powers of such Court.&nbsp; Consequent to bestowing such power on the Family Court, comes with it a primary duty to make efforts for settlement, as prescribed under Section 9. If that does not happen, during the resolution of disputes between the parties, the Family Court then has to bear in mind the principles enunciated in the Indian Evidence Act, 1872, which had been made applicable in terms of Section 14 of the 1984 Act.&nbsp; A Family Court can receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the<br>Indian Evidence Act, 1872. There is another provision, which gives insight into the working of the Family Court in the form of Section 15.&nbsp; It posits that the Family Court shall not be obliged to record the evidence of witnesses at length, but the Judge, as the examination of each witness proceeds, shall, record or cause to be recorded, a memorandum of the substance of&nbsp; &nbsp;what&nbsp; &nbsp;the witness deposes, and such memorandum shall be signed by the witness and the Judge and shall form part of the record. An incidental provision regarding efficacy of recording of evidence can be traced to Section 16 of the 1984 Act. That envisages that evidence of&nbsp; any person where&nbsp; such&nbsp; evidence is of a formal character, may be given by affidavit and may, subject to all just exceptions, be read in evidence in any suit or proceeding before a Family Court.&nbsp;&nbsp;<br>29. These&nbsp; provisions&nbsp; &nbsp;plainly&nbsp; reveal&nbsp; &nbsp;that&nbsp; &nbsp;the&nbsp; &nbsp;Family&nbsp; Court&nbsp; is expected to follow procedure known to law, which means insist for a formal pleading to be filed by both sides, then frame issues for determination, record evidence of the parties to prove the facts asserted by the concerned party and only thereafter, to enter&nbsp; &nbsp;upon&nbsp; &nbsp;determination&nbsp; &nbsp;and&nbsp; &nbsp;render&nbsp; &nbsp;decision&nbsp; &nbsp;thereon&nbsp; &nbsp;by recording reasons for such decision.&nbsp; For doing this, the Family Court is expected to give notice to the respective parties and provide them sufficient time and opportunity to present their claim in the form of pleadings and evidence before determination of the dispute.&nbsp;&nbsp;<br>30. We may usefully refer to the provisions of the 1890 Act, as invoked&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;appellant&nbsp; &nbsp;by&nbsp; &nbsp;filing&nbsp; &nbsp;petition&nbsp; &nbsp;before&nbsp; &nbsp;the&nbsp; &nbsp;Family Court.&nbsp; The appellant admittedly filed petition before the Family Court under Section 7 of the 1890 Act read with Section 7(g) of the 1984 Act.&nbsp; Section 7 of the 1890 Act bestows power in the Court to make order as to guardianship in respect of a minor. Such prayer can be made by anyone interested in the welfare of the&nbsp; &nbsp;minor&nbsp; &nbsp;and&nbsp; &nbsp;“not&nbsp; &nbsp;limited&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;father&nbsp; &nbsp;and&nbsp; &nbsp;mother&nbsp; &nbsp;of&nbsp; &nbsp;the minor”.&nbsp; In this inquiry, the Court, if so satisfied that it is for the welfare&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;minor,&nbsp; &nbsp;is&nbsp; &nbsp;free&nbsp; &nbsp;to&nbsp; &nbsp;appoint&nbsp; &nbsp;the&nbsp; applicant&nbsp; &nbsp;as&nbsp; a guardian of person or property of the minor or both or merely declaring a person to be such a guardian.&nbsp; Section 8 of the Act makes it amply clear as to who is entitled to apply for the order. It&nbsp; &nbsp;has&nbsp; &nbsp;specified&nbsp; &nbsp;four&nbsp; &nbsp;categories&nbsp; &nbsp;of&nbsp; &nbsp;persons.&nbsp; &nbsp; &nbsp;First&nbsp; &nbsp;is&nbsp; &nbsp;person desirous of being the guardian of the minor.&nbsp; The second is any relative or friend of the minor.&nbsp; The third is the Collector of the district or other local area within which the minor ordinarily resides and the&nbsp; fourth&nbsp; is the Collector&nbsp; having authority with respect&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; class&nbsp; &nbsp;to&nbsp; &nbsp;which&nbsp; &nbsp;the&nbsp; &nbsp;minor&nbsp; &nbsp;belongs.&nbsp; &nbsp;Such application is required to be filed before the District Court having jurisdiction in the place where the minor ordinarily resides under Section 9 of the 1890 Act.&nbsp; &nbsp;As regards procedure for such an application,&nbsp; &nbsp;it&nbsp; &nbsp;is&nbsp; &nbsp;delineated&nbsp; &nbsp;by&nbsp; &nbsp;providing&nbsp; &nbsp;for&nbsp; &nbsp;the&nbsp; &nbsp;form&nbsp; &nbsp;of application&nbsp; &nbsp;in&nbsp; &nbsp;Section&nbsp; &nbsp;10&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Act,&nbsp; &nbsp;which&nbsp; &nbsp;must&nbsp; &nbsp;contain necessary information referred to therein.&nbsp; Section 11 prescribes for the procedure in the event the Court is satisfied that there is ground for proceeding on the application.&nbsp; &nbsp;That would require adducing of evidence before making an order in terms of Section 13 of the 1890 Act.&nbsp; &nbsp;The Court is required to consider certain matters as specified in Section 17 of the 1890 Act and while making order, must also bear in mind the exception provided in Section 19 as to who should not be appointed as guardian.</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">40.&nbsp; &nbsp;Suffice&nbsp; &nbsp;it&nbsp; &nbsp;to&nbsp; &nbsp;observe&nbsp; &nbsp;that&nbsp; &nbsp;the&nbsp; &nbsp;appellant&nbsp; &nbsp;is&nbsp; &nbsp;justified&nbsp; &nbsp;in contending that the impugned judgment and orders came to be passed by the Family Court in a tearing hurry, may be because of the insistence of the respondent and her counsel to do so in light of the observations made by the High Court in habeas corpus and contempt matters against the appellant.&nbsp; The impugned judgment does make reference to those orders.&nbsp; We may hasten to add that the conduct of the appellant frowned upon by the High Court in the habeas corpus petition or contempt petition, cannot be made the sole basis to determine the factum of fitness or otherwise of the appellant for being a guardian of the minor child.&nbsp; That fact has&nbsp; &nbsp;to&nbsp; &nbsp;be&nbsp; &nbsp;decided&nbsp; &nbsp;on&nbsp; &nbsp;its&nbsp; &nbsp;own&nbsp; &nbsp;merits&nbsp; &nbsp;taking&nbsp; &nbsp;all&nbsp; &nbsp;aspects&nbsp; &nbsp;into account&nbsp; &nbsp;including&nbsp; &nbsp;possibility&nbsp; &nbsp;of&nbsp; &nbsp;joint&nbsp; &nbsp;shared&nbsp; &nbsp;parenting arrangement and more particularly, child­centric approach with paramount welfare and interest of the minor child.&nbsp; It is for that reason, even the High Court whilst disposing the habeas corpus and contempt proceedings, had added a word of caution at the end&nbsp; &nbsp;of&nbsp; &nbsp;its&nbsp; &nbsp;judgment&nbsp; &nbsp;that&nbsp; &nbsp;guardianship&nbsp; &nbsp;petition&nbsp; &nbsp;or&nbsp; &nbsp;other proceedings&nbsp; &nbsp;between&nbsp; &nbsp;the&nbsp; &nbsp;parties&nbsp; &nbsp;must&nbsp; &nbsp;proceed&nbsp; &nbsp;on&nbsp; &nbsp;their&nbsp; &nbsp;own merits&nbsp; &nbsp;in&nbsp; &nbsp;accordance&nbsp; &nbsp;with&nbsp; &nbsp;law,&nbsp; &nbsp;which&nbsp; &nbsp;observation&nbsp; &nbsp;has&nbsp; been completely glossed over by the Family Court in the present case.</b></h4><h4>43....We, however, revive the application filed by the respondent under Section 151 of CPC for declaring her to be the sole and absolute guardian in place of the appellant.&nbsp; That shall proceed before the Family Court on its own merits in accordance with law.&nbsp; All contentions available to both sides including about its maintainability are left open to be decided by the Family Court in accordance with law.<br></h4><h4><br></h4><h4><br></h4><div><br></div>', '34a1a16e4c2aab7b9d5bb30ee0b4d093.PNG', '7a5f1946052faa465998cb11885c6f03.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-17', 1, '', '', '2021-03-18 01:07:55', '2021-03-18 01:11:32'),
(590, 'aWnYe96vKx8sYDG1FLfntoojg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Trade Mark. Deceptive similarity. The test is likelihood of confusion arising between two trademarks in the mind of a quintessential common man who does not have the wisdom of Solomon nor the trained eyes of Sherlock Holmes. Karnataka High Court. 15:3:21', '<h4>N. Dinesh Kumar vs Shweta Khandelwal. </h4><h4>Miscellaneous First Appeal 790 of 2021 decided on 15 March 2021.  </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/371635/1/MFA790-21-15-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/371635/1/MFA790-21-15-03-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 3. The plaintiff <i>(respondent in the appeal)</i> in the suit in O.S.No.6811/2019 has contended that she is doing business under the name ‘Matru Ayurveda’ and the defendant <i>(appellant in the appeal) </i>is doing business under the name ‘Matruveda’. She further contended that the trademark of the defendant is so deceptively similar to the trade mark of plaintiff that in spite of she having established  her  business  ever  since the year 2015 on the strength of her  trademark  ‘Matru  Ayurveda’, on account of the defendant starting his business subsequently in the year 2018 with his trademark  ‘Matruveda’, her established customers got deceived and on account of same, she has suffered huge losses in the business and therefore, she prayed for a decree of permanent injunction to restrain the defendant from infringing plaintiff’s established registered trademark ‘Matru Ayurveda’ by using the offending trademark ‘Matruveda’ in the preparation, sale and distribution of herbal products or by using any other mark in respect of such products that is deceptively similar to the plaintiff’s well established and registered trademark ‘Matru Ayurveda’.<br>4. In the said suit, the plaintiff has filed applications viz., I.A.Nos.2 to 4 under Order XXXIX Rule 1 and 2 of CPC and upon the defendant filing his objections and after hearing, the learned Court below has allowed the applications by order dated 21.12.2020 granting temporary injunction restraining the defendant from infringing and passing off of the plaintiff’s registered trademark and trade name ‘Matru Ayurveda’ by using the offending trademark ‘Matruveda’ in the preparation, sale and distribution of herbal products or by using any other mark in respect of such other products that is deceptively similar to the trademark of the plaintiff’s mark ‘Matru Ayurveda’ during the pendency of the suit. Being aggrieved by the said order, the defendant has filed the above appeal.<br>8. Perusal of the documents produced prima facie show that the defendant got his trademark registered on 05.10.2018 and he had been doing business on the said trademark ever since 16.04.2018 in herbal supplements. His trademark is ‘Matruveda’ with two leaves spread afar inside a circle. The plaintiff got her trademark registered on 19.12.2018 with the trade name ‘Matru Ayurveda’ and she has been doing business on the said  trade  mark  since  2015. It has a logo within a circle with ‘Matru Ayurveda’ written in a stylized manner below the image of two intertwined leaves on a yellow background encircled by a gold and red rings. The entire image was set on a pale green background with images of leaves of a  darker  shade   of green.<br>11. Meaning and purpose of trade mark has been explained by the Hon’ble Supreme Court:</h4><h4 style=\"margin-left: 25px;\">“36. ……… A trade mark is  meant  to distinguish the goods made by one person from those made by another. A trade mark, therefore, cannot exist in vacuo. It can only exist in connection with the goods in relation to which it is used  or intended  to  be  used. Its object is to indicate a connection in the course of trade between the goods and some person having the right to use the mark either with or without any indication of the identity of that person. Clause (v)of Section 2(1) which defines the expression “trade mark” makes this abundantly clear. Trade marks became important after the industrial revolution as distinguishing goods made by one person from those made by another; and soon the need was felt to protect traders against those who were unauthorisedly using their marks and accordingly registration of trade marks was introduced in England by the Trade Marks Registration Act, 1875, which was soon replaced by more detailed and advanced legislation. When a person gets his trade mark registered, he acquires valuable rights by reason of such registration. Registration of his trade mark gives him the exclusive right to the use of the trade mark in connection with the goods in respect of which it is registered  and if  there is  any invasion of this right by any other person  using a mark which is  the same or deceptively similar to his trade mark, he can protect his trade mark by an action for infringement in which he can obtain injunction, damages or an account of profits made  by  the  other  person.  In  such  an action the registration of a trade mark is prima facie evidence on its validity. After the expiry of seven years from the date of the registration, a trade mark is to be valid  in  all respects except  in the   three cases   set out in Section 32” </h4><h4>See para 36 of American Home Products Corporation Vs. Mac Laboratories Pvt. Ltd. and another, (1986) 1 SCC 465.</h4><h4 style=\"\">12. As could be made out from Section 2(1)(zb) of the Trade Marks Act, 1999, the ‘trademark’ is totally different  from the trade name. There could be cases where trade  name  is also the trade mark but, in very  many  cases  it  may  not  be  so. Insofar as the present case is concerned, the ‘trade name’ is set inside the ‘trademark’, in both the cases, inside a circle with the trademark of the defendant being two leaves spread afar and in the case of the plaintiff two leaves intertwined to each other. In this case, there cannot be  any dispute  that trade names are  only a part of the composite whole of the trade mark. In a case of this nature, the main question that arises for consideration  is, Whether there is likelihood of confusion arising between the two trademarks, in the mind of a ‘quintessential common man’ who looks at any one of them for a fleeting second and whether he is likely to take it for the other trade mark ? This ‘quintessential common man’ is neither blessed with the  wisdom  of  Solomon nor the trained eyes of Sherlock Holmes. There  should  be  present in the mind of the trial Court this important aspect that where there is/are a common element/elements in the marks of plaintiff and defendant which is also contained in a number of other marks in use in the same  market,  whether  such  a  common occurrence in the market tends to cause purchasers to pay more attention to the other features of the respective marks and to distinguish between  them by those  features.  Application of this principle however depends on defendant successfully showing before the Trial Court that the marks containing the common element/elements are in fairly extensive use in the market in which the marks of the plaintiff and defendant  are being used. (see In re: Harrods’ Application case referred to in paras 14 and 15 of Corn Products Refining Company Vs. Shangrila Food Products Ltd. reported in AIR 1960 SC 142).<br>13. It is to be noticed that it is the contention of learned counsel for the defendant that there are several other products in the same market produced by various manufacturers who are also adopting the trade name with suffixes and prefixes including the terms ‘Matru’ and ‘Veda’ which according to him are generic terms. Is not the ‘trademark’ all about artistic work, design and get up ? And, how is the Court before whom a dispute is raised by a plaintiff that the mark of the defendant is deceptively similar to the one which is her established mark to decide whether it is really so. Certainly not by a method which involves placing the rival marks side by side. For, Court should have in mind, not the proverbial Sherlock Holmes, but the ‘quintessential common man’ who goes to the neighbourhood shop with the idea of purchasing a product of his liking – or, rather the liking of his grand-daughter – which  he  had  purchased only a week ago, and because of the gift of his humdrum existence has only an imperfect recollection of the imprint of the package. Has not  the  Hon’ble  Supreme  Court  said “…….. in order to come to the conclusion whether one mark  is deceptively similar to another, the  broad  and  essential  features of the two are to be considered ……. ” [Ref: para 9 of  Parle Products (P) Ltd. Vs. J.P. and Company, Mysore, reported  in (1972) 1 SCC 618]. The impugned  order  is  totally  bereft  of any discussion on the same. Absent such discussion, weight of authorities dictate that the impugned order be characterized as perverse and, resultantly, it is liable to be set aside. Hence, the following : <br>ORDER<br>The impugned order dated 21.12.2020 on I.A.Nos. II to IV in O.S.No.6811/2019 passed by the learned XVIII Additional City Civil Judge (CCH No.10) Bengaluru City, is set aside with a direction to the learned Court below to hear and dispose of the applications afresh by giving opportunity to both the sides and in accordance with law.<br></h4><h4><span style=\"background-color: rgb(255, 255, 0);\"><b>Decisions referred to: </b></span><br>1.MERCK  KGAA  Vs.  GALAXY  HOMPRO  -  2012(5)  ILR (DELHI) 1.<br>2.M/s. THIRU VALLUVAR MODERN RICE MILL (A PARTNERSHIP FIRM) Vs. R.B.CHIDAMBARASAMY - 2018 (73) PTC 149.<br>3.SHREE BALAJI CHEMICALS SAFIDON AND OTHERS Vs. BALDEV RAJ GIRIDHAR AND OTHERS - 2016 (3) PLR 261.<br>4.PARLE  PRODUCTS  Vs.  J.P.  AND  CO.,  -  (1972)  1  SCC 618.<br>5.LAXMIKANT PATEL Vs. CHETANBHAI SHAH, - (2002) 3 SCC 65.<br>6.S.SYED  MOHIDEEN  Vs.  SULOCHANA  BAI,  -  (2016)  2 SCC 683.<br>7.WANDER  LTD.  Vs.  ANTOX  INDIA  -<span style=\"white-space: pre;\">	</span>(1990)  SUPP  SCC 727.<br>8.GUJARAT  BOTTLING  CO. Vs.  COCA  COLA  CO.,  -  (1995) 5 SCC 545.<br>9.COLGATE PALMOLIVE INDIA LTD. Vs. HINDUSTAN LEVER LTD., - (1999) 7 SCC 1.<br>10.MEX SWITCHGEARS PVT. LTD. Vs. MAX SWITHGEARS PVT. LTD., - 2014 SCC ONLINE DEL 854.<br>11.MONTBLANC SIMPLO-GMBH<span style=\"white-space: pre;\">	</span>Vs.<span style=\"white-space: pre;\">	</span>NEW<span style=\"white-space: pre;\">	</span>DELHI STATIONERY MART - 2008 (38) PTC 59 (DEL).<br>12.MARVEL TEA ESTATE<span style=\"white-space: pre;\">	</span>Vs. NUSUN GENETIC RESEARCH - 2012 SCC ONLINE DEL 3330.</h4>', 'e85918bd72c2a2392ddf352c6166edb9.jpg', 'f795dbfb5b775a9c140440edfbeb5aef.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-15', 1, '', '', '2021-03-18 01:42:16', '2021-03-18 01:45:23'),
(591, 'AOJi1p5JSBcXkbq3bOilvGBgN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Quashing criminal cases arising out of civil transactions. When ingredients of crime are prima facie made out-the court is required to stay its hand and allow case to go on. Karnataka High Court. 24 February 2021. ', '<h4>Lakshmidevi and others vs State of Karnataka and others. </h4><h4>Criminal Petition 5075 of 2020 decided on 24 February 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/371146/1/CRLP5075-20-24-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/371146/1/CRLP5075-20-24-02-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 1 &3. The petitioners are before this Court seeking for Quashing the complaint.. filed by the respondent No.2 before the respondent No.1 for offences punishable under Section 417, 419, 420, 468, 471, 193, 120B read with Section 34 of the Indian Penal Code, 1860. In the complaint, it is alleged that Smt.Sita Ramaswamy was the owner of Sy.No.37, New Sy.No.141/1 and Sy.No.141/B situated in Pattanduru Agrahara Village. She formed a layout comprising of sites and sold the same in favour of various persons by way of registered sale deeds in the year 1994-95, who in turn sold the same under registered sale deeds to the vendors of the Complainant, and the Complainant purchased the said sites in the year 2003 from his vendors under registered sale deeds. The petitioners, in collusion with one Vinod Kumar, fabricated the family tree and death certificate of deceased Smt. Sita Ramaswamy to show petitioner No.1 as her only legal heir and in collusion with the Assistant Commissioner, Bangalore North Sub-Division, petitioners and Vinod Kumar got the aforesaid properties mutated in the name of petitioner No.1 in order to claim property rights in the said survey number and deprive the Complainant of his title......The documents have been fabricated only to usurp the property, the actual legal heirs of Smt. Sita Ramaswamy have all executed declaration in favour of vendors of the complainant way back in the year 2003.<br>8. Based on the submission made by both the counsel and the pleadings filed, citations referred to, the points that would arise for determination are:<br><b style=\"background-color: rgb(255, 255, 0);\">1. Whether it can be stated in the present facts that the dispute between the Complainant and the petitioners is entirely civil in nature, thereby making the criminal complaint not maintainable?</b></h4><h4>10.1.<span style=\"white-space:pre\">	</span>Sri. Aravind Kamath, learned Senior Counsel appearing for the petitioners, has strenuously sought to contend that if at all the dispute is civil in nature, there being a claim as regards the property and the Complainant instead of filing a criminal complaint ought to have filed a suit for declaration and it is the Civil Court which ought to have decided on the validity or otherwise of the documents executed in favour of the petitioners.<br>10.2.<span style=\"white-space:pre\">	</span>Such a stand, though at first blush appears to be inviting, what is to be looked into by this Court is what is the basis of the dispute between the parties.<b style=\"background-color: rgb(255, 255, 0);\"> If the dispute was one as regards the rights of the parties inasmuch as the parties, for example, claiming under the same vendor belonging to the same family and there being only an exfacie civil dispute without any criminal element involved therein, the parties could be relegated to a civil suit quashing the criminal complaint.</b><br>10.3.<span style=\"white-space:pre\">	</span>In the present case, there are serious allegations made by the Complainant against the petitioners as regards they having<br>fabricated the family tree, death certificate, revenue documents to usurp the property which allegedly does not even belong to or that the petitioners have no right, title or interest in relation thereto more particularly petitioner No.1.<br>10.4.<span style=\"white-space:pre\">	</span>It is categorically alleged that Laxmi Devi – Petitioner. No.1 is not at all related to Smt.Sita Ramaswamy. There is impersonation resorted to by Petitioner No.1-Laxmi Devi in conspiracy with Petitioner Nos.2 and 3 and others to knock off the property belonging to the Complainant. Such an allegation cannot be said to be civil in nature.<br>10.5.<span style=\"white-space:pre\">	</span>The complaint exfacie makes out categorical allegations to satisfy the requirement of the ingredients of the offence alleged against the petitioners. Whether the same is true or false can only be ascertained after investigation and/or after trial.<br><b style=\"background-color: rgb(255, 255, 0);\">10.6.This Court, while considering the petition under Section 482 of Cr.P.C., cannot hazard to give a finding on the truthfulness or otherwise of the allegation. So long as the ingredients are prima-facie made out, this Court is required to stay its hand and permit the investigation to go ahead, and in the event of a charge sheet being laid, a trial could be held.</b><br>10.7.<span style=\"white-space:pre\">	</span>Sri. Aravind Kamath, learned Senior Counsel has sought to contend that there is no intention to deceive the Complainant by the petitioners inasmuch as they do not even know the Complainant and therefore, there being no interaction, there cannot be any offence said to have been committed. The issue in the present case is not the interse relationship between the petitioners and the Complainant. The Complainant alleges that by fabrication of documents and impersonation, the property of the Complainant is sought to be usurped by the petitioners. This does not require any interaction between the petitioners and the Complainant. <br>10.8.<span style=\"white-space:pre\">	</span>Petitioner No.1, claiming to be a daughter, has got mutation made in her name claiming to be her legal heir, whereas the Complainant is stated to have purchased the property under registered sale deeds, which of these are true and correct would have to be investigated and this Court cannot at this juncture come to a conclusion that the same is a civil dispute in nature unless it is categorically made out that there is no criminal element or a criminal offence made out in the complaint, this Court ought not to interfere in the matter.</h4><h4>10.9.<span style=\"white-space:pre\">	</span>Sri. Aravind Kamath, learned Senior counsel by relying upon <b><i><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nmso-bidi-font-size:11.0pt;font-family:\"Verdana\",\"sans-serif\";mso-fareast-font-family:\r\nVerdana;mso-bidi-font-family:Verdana;mso-ansi-language:EN-US;mso-fareast-language:\r\nEN-US;mso-bidi-language:AR-SA\">Chandra </span></i></b><b style=\"font-size: 0.875rem;\"><i><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nmso-bidi-font-size:11.0pt;font-family:\"Verdana\",\"sans-serif\";mso-fareast-font-family:\r\nVerdana;mso-bidi-font-family:Verdana;mso-ansi-language:EN-US;mso-fareast-language:\r\nEN-US;mso-bidi-language:AR-SA\">Ratnaswami vs. K.C.Palaniswamy [(2013) 6 SCC 740 </span></i></b>, has contended that if a complainant had manipulated or misused the process of Court, criminal proceedings are to be quashed. Facts in the said decision and facts in the present decision are materially different. In that matter, there were proceedings pending before the Company Law Board between the parties. In this case, there is no Civil proceedings pending. Therefore, the said decision is not applicable.</h4><h4>10.10.The decision of the Hon’ble Apex Court in <b><i><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nmso-bidi-font-size:11.0pt;font-family:\"Verdana\",\"sans-serif\";mso-fareast-font-family:\r\nVerdana;mso-bidi-font-family:Verdana;mso-ansi-language:EN-US;mso-fareast-language:\r\nEN-US;mso-bidi-language:AR-SA\">Rama<span style=\"letter-spacing:-.55pt\"> </span>Devi<span style=\"letter-spacing:-.3pt\"> </span>Vs.<span style=\"letter-spacing:-.6pt\"> </span>State<span style=\"letter-spacing:-.5pt\"> </span>of<span style=\"letter-spacing:-.4pt\"> </span>Bihar, (2010)<span style=\"letter-spacing:-1.2pt\"> </span>12<span style=\"letter-spacing:\r\n-1.15pt\"> </span>SCC<span style=\"letter-spacing:-1.15pt\"> </span>273 <span style=\"letter-spacing:-.9pt\"> </span></span></i></b>was also relied upon by  the  learned Senior counsel.<span style=\"white-space:pre\">	</span>That was a case where the vendor had executed two sale deeds as regards the same property and hence, the Court was of the opinion that a civil suit ought to be filed. Here the allegation made is as regards the impersonation and fabrication of documents by a person, who does not have any interest in  the property. Therefore, the said decision is also not applicable.<br></h4><h4>10.11.The decision in <b><i><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nmso-bidi-font-size:11.0pt;font-family:\"Verdana\",\"sans-serif\";mso-fareast-font-family:\r\nVerdana;mso-bidi-font-family:Verdana;mso-ansi-language:EN-US;mso-fareast-language:\r\nEN-US;mso-bidi-language:AR-SA\">G.Sagar<span style=\"letter-spacing:-.65pt\"> </span>Suri<span style=\"letter-spacing:-.7pt\"> </span>vs.<span style=\"letter-spacing:-.8pt\"> </span>State<span style=\"letter-spacing:-.7pt\"> </span>of<span style=\"letter-spacing:-.65pt\"> </span>U.P., (2000) 2 SCC 636 </span></i></b>has been relied upon by the petitioners. That was a case where all the family members were made parties to criminal proceedings. Hence, the Hon’ble Apex Court held that those proceedings were only for browbeating the parties and quashed the same. Again the said decision is not applicable to these proceedings.<br></h4><h4>10.12. The decision of the Hon’ble Apex Court in <b><i><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nmso-bidi-font-size:11.0pt;font-family:\"Verdana\",\"sans-serif\";mso-fareast-font-family:\r\nVerdana;mso-bidi-font-family:Verdana;mso-ansi-language:EN-US;mso-fareast-language:\r\nEN-US;mso-bidi-language:AR-SA\">Hridaya Ranjan Prasad Verma vs. State of Bihar, (2000) 4 SCC 168</span></i></b><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nmso-bidi-font-size:11.0pt;font-family:\"Verdana\",\"sans-serif\";mso-fareast-font-family:\r\nVerdana;mso-bidi-font-family:Verdana;mso-ansi-language:EN-US;mso-fareast-language:\r\nEN-US;mso-bidi-language:AR-SA\">, </span>was relied upon. The said decision is not applicable here for the reason that that was one relating to the breach of contract as distinguished from that of cheating. Here there is no contract between the parties. They are not related to each other. Hence, that decision is also not applicable to the present facts.<br></h4><h4>10.13. As such, I answer Point No.1 by holding that in the present facts, the dispute between the Complainant and the petitioners cannot be said to be entirely civil in nature or as a corollary; it cannot be said that there is no criminal offence<br>made out against the petitioners thereby rendering the criminal complaint filed by the Complainant an abuse of the process of law. As such, I am of the considered opinion that the investigation ought to go on.</h4><p><br></p>', '2279cabe49d1b73b8a05dd2a09e22bd6.jpg', '43a3ce5a26cf8cbe25f3ab37494c6f44.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-24', 1, '', '', '2021-03-18 02:53:35', '2021-03-18 03:05:14');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(592, 'GwZKt3BzWWgjwBKY9nRyt1kN7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Complaint filed before a jurisdictional police station can be transferred to the Central Crime Branch for investigation provided the CCB Investigating Officer is of the same or higher rank. Karnataka High Court. 24 February 2021.', '<h4>Lakshmidevi and others vs State of Karnataka and others.</h4><h4>Criminal Petition 5075 of 2020 decided on 24 February 2021.</h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/371146/1/CRLP5075-20-24-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/371146/1/CRLP5075-20-24-02-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Question framed</span>: Whether once a complaint had been filed before the jurisdictional police station, could it be transferred to the CentralCrime<span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">Branch </span><span style=\"font-size: 1.3125rem;\">for </span><span style=\"font-size: 1.3125rem;\">the </span><span style=\"font-size: 1.3125rem;\">purpose </span><span style=\"font-size: 1.3125rem;\">of </span><span style=\"font-size: 1.3125rem;\">the investigation?</span></h4><h4><span style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 0);\">Relevant paragraphs:</span><span style=\"font-size: 1.3125rem;\"> </span>11.1, 11.2 Initially, a complaint had been filed before the Seshadripuram Police Station.  Thereafter, the Assistant Commissioner of Police transferred the matter to the CCB for investigation. Sri. Aravind Kamath, learned Senior Counsel for the petitioners, has contended that such a transfer could not have been done. If at all the Complainant was aggrieved by non-investigation, the Complainant ought to have followed the procedure under Section 154(3) of Cr.P.C., without so doing, a transfer of investigation from a Police Station to CCB was not permissible. In this regard, he relied on the decision of <b><i><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nmso-bidi-font-size:11.0pt;font-family:\"Verdana\",\"sans-serif\";mso-fareast-font-family:\r\nVerdana;mso-bidi-font-family:Verdana;mso-ansi-language:EN-US;mso-fareast-language:\r\nEN-US;mso-bidi-language:AR-SA\">Magadi Shankar Rao Krishna Murthy Vs.\r\nCommissioner of Police, Bangalore City Police, ILR 2015 Kar 6039 </span></i></b>to contend that the Commissioner of Police can only take over the investigation but not transfer the investigation to the CCB</h4><h4>11.3.<span style=\"white-space:pre\">	</span>In Magadi Shankar Rao’s case supra, what the Court was concerned with was that whether the Commissioner could transfer the investigation to an officer inferior to the Investigating Officer already investigating the matter. Hence, this Court in the said matter held that the Commissioner of Police could exercise his jurisdiction under Section 36 of Cr.P.C., and conduct the investigation by himself, he could not delegate the power of investigation to an inferior officer.<br>11.4.<span style=\"white-space:pre\">	</span>In the present case, it is not that the investigation has been transferred to an inferior officer. The investigation has been transferred from one Police Inspector to another Police Inspector in the CCB. Therefore, the person who has been nominated by the Assistant Commissioner of Police is of the same rank as that of the Investigating Officer in the Seshadripuram Police Station. Hence, in my considered view, the decision of Magadi Shankar Rao’s case supra would not be applicable to the present case. More so, in the said decision, the matter was referred to the concerned Police Station by a Magistrate under Section 156(3) of Cr.P.C. whereas in the present case, there is a complaint filed by the Complainant with the jurisdictional police.<br>11.5.<span style=\"white-space:pre\">	</span>These aspects would have to be considered in two different perspectives inasmuch as if the Court were to direct a particular officer or a particular police station to investigate the matter, the Commissioner by himself cannot overreach the order and transfer the investigation to another agency.<br>11.6.<span style=\"white-space:pre\">	</span>However, if a complaint had been filed with the police station, the Police Commissioner or the Assistant Commissioner of Police can always by exercising administrative power, on the application of his mind to the facts and circumstances, if so required, transfer the case for investigation to another Investigating Officer or Investigating Agency. If the same is malafide and so established by the accused or the Complainant, such transfer could be set aside.<br>11.7.<span style=\"white-space:pre\">	</span>In the present case, there is no allegation of malafides against the Assistant Commissioner of Police while transferring the matter. Be that as it may, the investigation has been transferred to a specialised agency viz., CCB, which cannot be said to be malafide or contrary to the applicable statutes.<br>11.8.<span style=\"white-space:pre\">	</span>Sri. Aravind Kamath, learned Senior Counsel also referred to <b><i><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nmso-bidi-font-size:11.0pt;font-family:\"Verdana\",\"sans-serif\";mso-fareast-font-family:\r\nVerdana;mso-bidi-font-family:Verdana;mso-ansi-language:EN-US;mso-fareast-language:\r\nEN-US;mso-bidi-language:AR-SA\">Central</span></i></b><span lang=\"EN-US\" style=\"font-size:13.0pt;mso-bidi-font-size:11.0pt;font-family:\"Times New Roman\",\"serif\";\r\nmso-fareast-font-family:Verdana;mso-bidi-font-family:Verdana;mso-ansi-language:\r\nEN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA\"> </span><b><i><span lang=\"EN-US\" style=\"font-size:13.0pt;mso-bidi-font-size:11.0pt;font-family:\"Verdana\",\"sans-serif\";\r\nmso-fareast-font-family:Verdana;mso-bidi-font-family:Verdana;mso-ansi-language:\r\nEN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA\">Bureau</span></i></b><span lang=\"EN-US\" style=\"font-size:13.0pt;mso-bidi-font-size:11.0pt;font-family:\"Times New Roman\",\"serif\";\r\nmso-fareast-font-family:Verdana;mso-bidi-font-family:Verdana;mso-ansi-language:\r\nEN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA\"> </span><b><i><span lang=\"EN-US\" style=\"font-size:13.0pt;mso-bidi-font-size:11.0pt;font-family:\"Verdana\",\"sans-serif\";\r\nmso-fareast-font-family:Verdana;mso-bidi-font-family:Verdana;mso-ansi-language:\r\nEN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA\">of Investigation</span></i></b><span lang=\"EN-US\" style=\"font-size:13.0pt;mso-bidi-font-size:11.0pt;font-family:\"Times New Roman\",\"serif\";\r\nmso-fareast-font-family:Verdana;mso-bidi-font-family:Verdana;mso-ansi-language:\r\nEN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA\"> </span><b><i><span lang=\"EN-US\" style=\"font-size:13.0pt;mso-bidi-font-size:11.0pt;font-family:\"Verdana\",\"sans-serif\";\r\nmso-fareast-font-family:Verdana;mso-bidi-font-family:Verdana;mso-ansi-language:\r\nEN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA\">and</span></i></b><span lang=\"EN-US\" style=\"font-size:13.0pt;mso-bidi-font-size:11.0pt;font-family:\"Times New Roman\",\"serif\";\r\nmso-fareast-font-family:Verdana;mso-bidi-font-family:Verdana;mso-ansi-language:\r\nEN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA\"> </span><b><i><span lang=\"EN-US\" style=\"font-size:13.0pt;mso-bidi-font-size:11.0pt;font-family:\"Verdana\",\"sans-serif\";\r\nmso-fareast-font-family:Verdana;mso-bidi-font-family:Verdana;mso-ansi-language:\r\nEN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA\">another</span></i></b><span lang=\"EN-US\" style=\"font-size:13.0pt;mso-bidi-font-size:11.0pt;font-family:\"Times New Roman\",\"serif\";\r\nmso-fareast-font-family:Verdana;mso-bidi-font-family:Verdana;mso-ansi-language:\r\nEN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA\"> </span><b><i><span lang=\"EN-US\" style=\"font-size:13.0pt;mso-bidi-font-size:11.0pt;font-family:\"Verdana\",\"sans-serif\";\r\nmso-fareast-font-family:Verdana;mso-bidi-font-family:Verdana;mso-ansi-language:\r\nEN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA\">vs.</span></i></b><span lang=\"EN-US\" style=\"font-size:13.0pt;mso-bidi-font-size:11.0pt;font-family:\"Times New Roman\",\"serif\";\r\nmso-fareast-font-family:Verdana;mso-bidi-font-family:Verdana;mso-ansi-language:\r\nEN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA\"> </span><b><i><span lang=\"EN-US\" style=\"font-size:13.0pt;mso-bidi-font-size:11.0pt;font-family:\"Verdana\",\"sans-serif\";\r\nmso-fareast-font-family:Verdana;mso-bidi-font-family:Verdana;mso-ansi-language:\r\nEN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA\">Rajesh Gandhi<span style=\"letter-spacing:-.7pt\"> </span>and<span style=\"letter-spacing:-.55pt\"> </span>another,<span style=\"letter-spacing:-.6pt\"> </span>(1996)<span style=\"letter-spacing:-.7pt\">\r\n</span>11<span style=\"letter-spacing:-.6pt\"> </span>SCC<span style=\"letter-spacing:\r\n-.65pt\"> </span>253</span></i></b><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nmso-bidi-font-size:11.0pt;font-family:\"Verdana\",\"sans-serif\";mso-fareast-font-family:\r\nVerdana;mso-bidi-font-family:Verdana;mso-ansi-language:EN-US;mso-fareast-language:\r\nEN-US;mso-bidi-language:AR-SA\">, </span>to contend that the investigation could not have been transferred from the police to the CBI. In that case, when the transfer of investigation was challenged before the RanchiBench of the Patna High Court, a Single Bench declined to quash the notification. However, when the same was again moved before a Bench in the Patna High Court, the notification was quashed. The Hon’ble Apex Court held that the transfer to the CBI could not have been challenged by the accused since the accused had no right nor was he entitled to hearing in deciding the agency to be entrusted with the investigation and had dismissed the challenge made by the accused.<br>11.9.<span style=\"white-space:pre\">	</span>The said decision infact supports the case of the respondent-complainant and not the petitioners, in that case, when the State was not satisfied with the investigation being carried out referred it to CBI for further investigation which was upheld by the Hon’ble Apex Court. Hence, the same would not enure to the benefit of the petitioners. Be that as it may, the Petitioners who are accused cannot challenge the transfer of investigation.<br>11.10. The decision of the Hon’ble Apex Court in <b><i><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nmso-bidi-font-size:11.0pt;font-family:\"Verdana\",\"sans-serif\";mso-fareast-font-family:\r\nVerdana;mso-bidi-font-family:Verdana;mso-ansi-language:EN-US;mso-fareast-language:\r\nEN-US;mso-bidi-language:AR-SA\">Sakiri Vasu<span style=\"letter-spacing:.75pt\"> </span>Vs. </span></i></b><b style=\"font-size: 0.875rem;\"><i><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nmso-bidi-font-size:11.0pt;font-family:\"Verdana\",\"sans-serif\";mso-fareast-font-family:\r\nVerdana;mso-bidi-font-family:Verdana;mso-ansi-language:EN-US;mso-fareast-language:\r\nEN-US;mso-bidi-language:AR-SA\">State of U.P., (2008) 2 SCC 409</span></i></b><span lang=\"EN-US\" style=\"font-size: 13pt; font-family: Verdana, sans-serif;\">, </span>was relied upon by the learned Senior Counsel to contend that the Complainant could not have approached the Deputy Commissioner seeking for a change of investigating agency but could have only resorted to the procedure under Order 154 (3) Cr.P.C. and approached the Superintendent of Police or such other police officer referred to therein, if the grievance still persists, he could approach the Magistrate and not the High Court under Section 482 of Cr.P.C.</h4><h4>11.11. In my considered opinion, the said decision is not applicable to the present facts and situation. The Complainant herein had approached the Additional Commissioner of Police seeking for redressal of his grievance in that he contended that the investigation was not being conducted. As such, the Complainant requested for the investigation to be conducted properly and expeditiously. The Additional Commissioner of Police, considering this matter transferred it to the CCB for proper and expeditious investigation. In view thereof, the said decision is not applicable to the present facts and circumstances.<br>11.12. One another decision relied upon by Sri. Aravind Kamath, learned Senior counsel is <b><i><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nmso-bidi-font-size:11.0pt;font-family:\"Verdana\",\"sans-serif\";mso-fareast-font-family:\r\nVerdana;mso-bidi-font-family:Verdana;mso-ansi-language:EN-US;mso-fareast-language:\r\nEN-US;mso-bidi-language:AR-SA\">Nirmal Singh Kahlon<span style=\"letter-spacing:\r\n-.7pt\"> </span>Vs.<span style=\"letter-spacing:-.85pt\"> </span>State<span style=\"letter-spacing:-.75pt\"> </span>of<span style=\"letter-spacing:-.9pt\"> </span>Punjab (2009)<span style=\"letter-spacing:-1.0pt\">\r\n</span>1<span style=\"letter-spacing:-.85pt\"> </span>SCC 441</span></i></b> in that case, a complaint was lodged, and FIR was registered with the jurisdictional police station. Upon investigation, a charge sheet had been laid. Thereafter, the Secretary to Government of Punjab had written a letter to the Secretary to get the case investigated by the Crime Branch of the State police. In the meanwhile, in a proceeding pending before the High Court, the High Court had enquired if the matter was being referred to CBI for a probe towards which the State Government replied that it would do so.<br>11.13. The CBI, however, expressed its inability to take over the investigation on the ground of lack of manpower. When the matter was taken up before the Court, CBI agreed to take up the investigation. However, no notification was issued by the State to hand over the investigation. Subsequent thereto, on a notification being issued, the CBI took up the investigation, which came to be challenged.<br>The Hon’ble Apex Court held that the State could always request for further investigation by CBI.<br>11.14. From the above it is clear that the decision does not support the case of the petitioners so also is the situation in the case of CBI vs. State of Rajasthan’s supra.<br><b style=\"background-color: rgb(255, 255, 0);\">11.15. CCB though not notified as a police station, CCB is recognised as a specialised agency for carrying out investigation in certain crimes on account of the fact that CCB is specialised both in terms of men and equipment to carry out such investigation. Handing over of the matter to the CCB for investigation as per the notification dated 28.01.2020 cannot be questioned. The matter is only handed over for the purpose of investigation, the said order does not indicate as to whether the CCB would be filing the charge sheet or not.</b><br>11.16. After completion of the investigation, it is always open for the CCB to provide the investigation report to the Police Inspector of respondent No.1, who could then submit the same before the concerned Court. This being so for the reason that CCB, though it has conducted the investigation, cannot submit the charge sheet. This aspect is not required to be considered as of now. The authorities concerned have to take necessary action in accordance with the law, once the investigation is completed depending on the outcome of the investigation.<br><b style=\"background-color: rgb(255, 255, 0);\">11.17. Thus, looked at from any angle, in terms of Section 154 (3) of Cr.P.C., the Additional Commissioner of Police is a superior officer to the Police Inspector - respondent No.1 Police Station. The Additional Commissioner of Police is a superior officer to the inspector of police at the police station. In exercise of superintendence under Section 36 of Cr.P.C., the Additional Commissioner of Police has handed over the matter for investigation to Respondent No.3 – CCB, which officer is of the same rank as that of the police inspector – Respondent No.1.</b><br>11.18. This apparently has been done since Respondent No.1 has not<span style=\"white-space:pre\">	</span>carried out any investigation and/or has not taken any steps. Be that as it may, looked at from another angle, the Complainant on account of inaction on the part of respondent No.1, in terms of Section 154(3)<span style=\"white-space:pre\">	</span>of Cr.P.C.<span style=\"white-space:pre\">	</span>has<span style=\"white-space:pre\">	</span>approached the Additional Commissioner of Police, who is a superior officer of the Respondent No.1 who had exercised his powers to redress the grievance of the Complainant and transferred the matter for the purpose of the investigation to the CCB. Though it may be that the Complainant had sought for transfer of the matter to CCB, it is not only because of the request of the Complainant; the investigation has been handed over to CCB. The matter is transferred to CCB since the CCB is the competent specialised organisation in the investigation.<br>11.19. These aspects cannot be faulted with by the petitioners who would have no role to play in the choice of the investigator or investigation agency.<br>11.20. Hence, I answer Point No.2 by holding that<b style=\"background-color: rgb(255, 255, 0);\"> whenever a complaint is filed before a jurisdictional police station, the same could be transferred to the Central Crime Branch for the purpose of the investigation by the State or by an officer who has superintendence power over the said police station. However, the Investigating Officer of the CCB named has to be of the same or higher rank as that of the Investigating Officer in the police station.</b><br>11.21. Upon investigation, the CCB can submit the investigation report along with a recommendation to the police station. If there is a recommendation for filing of charge sheet, the sam would be filed by the concerned police station. CCB not<br>being a police station cannot file a charge sheet.<br>11.22. This vexed contention has been raised in several matters. The State may consider designating the CCB as a police station so as to avoid these kinds of issues being raised in future.</h4><div><br></div>', 'd73f84e4233499522bab5f644d60a933.jpg', 'cf7c0e1dbfbc7a62af5658cfc7b237b1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-24', 1, '', '', '2021-03-18 03:41:25', '2021-03-18 03:58:35'),
(594, 'kZabplcPeCt5SdVbVj0ALwNl4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transfer of Property Act 1882. Section 114. Relief against forfeiture for non payment of rent. The section does NOT come to the rescue of a tenant who lacks bonafides in conduct. Karnataka High Court.  ', '<h4><b>Velthoria Sequiera vs Sode Vadiraja Mutt Udupi. </b></h4><h4><b>Writ Petition 30053 of 2019 decided on 16 March 2021.</b></h4><h4> </h4><h4><b>Justice Krishna S. Dixit.&nbsp;</b></h4><h4><b>Petitioner being the defendant inter alia in a suit for possession &amp;&nbsp; payment&nbsp; of&nbsp; arrears&nbsp; of&nbsp; rent&nbsp; in O.S.No.80/2014; the suit is being opposed by filing the Written Statement on 12.04.2014; her application in I.A.No.1 filed u/s.114 of Transfer of Property Act, 1882 having been negatived by the impugned order dated 28.05.2019, the learned Prl. Civil Judge, Udupi has declined to relieve her from the forfeiture of the lease; therefore petitioner is grieving before the Writ Court.<br>3(f)<span style=\"white-space:pre\">	</span>It is pertinent to reproduce the text of Section&nbsp; 114 of the T.P. Act reads as under:</b></h4><h4 style=\"margin-left: 25px;\"><b>“114. Relief against forfeiture for the non- payment of rent – Where a lease of immovable property has determined by forfeiture for non- payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the&nbsp; lessee&nbsp; pays or tenders to the lessor the rent in arrears, together with interest thereon&nbsp; and&nbsp; his&nbsp; full&nbsp; costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.\"</b></h4><h4><b>This provision enacts the rule of equity, where a lease of immovable property has been determined by forfeiture on the ground of non-payment of rent and&nbsp; the&nbsp; lessor files a suit for ejectment, the court has discretion to relieve the lessee of the consequences of such forfeiture, if at the hearing of the suit he pays or tenders the rental arrears with interest and costs, or furnishes such security as the court thinks fit; this provision is bit in variance with the English law inasmuch as there, equity can be invoked not only during the pendency of the suit but also within six months of the execution of the decree of&nbsp; ejectment&nbsp; by&nbsp; virtue of sec.210 of&nbsp; Common Law Procedure&nbsp; Act, 1852,&nbsp; as&nbsp; it then was; the relief under this section can be granted to&nbsp; the lessee even at the appellate stage,&nbsp; if&nbsp; other&nbsp; conditions are complied with vide Apex Court decision in Lala Praduman Kumar vs veerendra Goyal, Laws (SC) 1969-3-30.</b></h4><h4><b>(g) The text &amp; context of Section 14 require&nbsp; bona fide on the part of the tenant who has been remaining in arrears of rent; if that is lacking, a tenant cannot be permitted to seek refuge under the umbrella of this provision; otherwise this provision runs the risk of being used as an instrument of unconscionability to defeat the accrued right of re-entry accruing to the landlord; in deciding whether there is bona fide, facts &amp;&nbsp; circumstances&nbsp; of the case need to be kept in view; the Apex Court in Namdeo Lokman Lodhi vs Narmada Bai, 1958 SCR 1009 observed as under:</b></h4><h4 style=\"margin-left: 25px;\"><b>“… in exercising the discretion (under Section 114 of the Transfer of Property Act) each case must be judged by itself; the delay, the conduct of the parties and the difficulties to which the&nbsp; landlord&nbsp; has been put should be&nbsp; weighed&nbsp; against&nbsp; the&nbsp; tenant. … It is a maxim of&nbsp; equity&nbsp; that&nbsp; a&nbsp; person who comes in equity must do&nbsp; equity&nbsp; and&nbsp; must come with clean hands; if&nbsp; the conduct of the tenant is such that it disentitles him to relief&nbsp; in&nbsp; equity,&nbsp; then the court’s hands are not tied to exercise it in his favour.”</b></h4><h4><b>(h) In the case at hands, the petitioner lacks bona fide as rightly held by the&nbsp; court&nbsp; below&nbsp; because&nbsp; she&nbsp; has filed the application in Form-7A seeking grant of the land under Section 77A of the Karnataka Land&nbsp; Reforms&nbsp; Act,&nbsp; 1961 as amended; nothing prevented her even then, from making payment of arrears of rent particularly&nbsp; when&nbsp; the rate of rent is apparently frugal ie., less than Rs.5/- per month; even rental arrears are equally frugal ie., about Rs.300/- or so, in all; despite that the petitioner chose to remain in arrears, admittedly having built a huge building worth more than Rs. 20 Lakh, according to her own estimation; this shows the incongruity on the part of the petitioner in somehow squatting on the property of the respondent without complying with&nbsp; the&nbsp; agreed&nbsp; covenants of tenancy.</b></h4><h4><b>(i) ...&nbsp;it has been said by Lord Hallsbury more than a century ago in Quinn vs. Leathem, 1901 A.C. 495, 506, that a case is an authority&nbsp; for&nbsp; the&nbsp; proposition it lays down in the given fact matrix and not for all that which logically follows from what has been&nbsp; laid down.</b></h4><h4><b>(k) It is true that Section 114 of the T.P. Act gives right to apply for such a grant; merely because a&nbsp; tenant can so apply, it cannot be readily inferred that his act of remaining in arrears of rent on that ground should be&nbsp; treated as bona fide; an act contrary to law can never be bona fide; however, an act which is not&nbsp; contrary&nbsp; to&nbsp; law&nbsp; may still lack bona fide,&nbsp; depending&nbsp; upon&nbsp; the&nbsp; circumstances of a case; for&nbsp; an&nbsp; act&nbsp; being&nbsp; bona fide,&nbsp; one has to show that it is done in good faith ie., with honesty, sincerity &amp; genuineness, and without any element of culpability; from this inarticulate premise, the learned judge of the court below&nbsp; opined&nbsp; against&nbsp; the&nbsp; petitioner&nbsp; ‘thou art weighed and found wanting’; a writ court exercising a limited supervisory&nbsp; jurisdiction&nbsp; constitutionally vested under article 227 cannot run&nbsp; a&nbsp; race of opinions with the court below which in its discretion exercised in accordance with the rules of reason &amp; justice, has denied relief to the unscrupulous petitioner. </b></h4><h4><b>In the above circumstances, this writ petition being devoid of merits is liable to be dismissed, and accordingly it is, costs having been made easy.</b><br></h4>', '40018c84fc83cb80f5917e5606d2cb70.JPG', '0adfdb6b0f32fe17eed748a91df9c8a4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-31', 1, '', '', '2021-03-18 22:31:18', '2023-01-31 13:43:46'),
(595, 'wnGjlbwAxslSUEuH5iO82c8jk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bail Conditions. Supreme Court mandates gender sensitization. Lays down guidelines to be followed by Courts while granting bail and during trial of gender related crimes. 18 March 2021.  ', '<h4>Aparna Bhat and others vs State of Madhya Pradesh and another. </h4><h4>Criminal Appeal 329 of 2021 decided on 18 March 2021. </h4><h4>Justice A.M. Khanwilkar and Justice S. Ravindra Bhat. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/20318/20318_2020_35_1501_27140_Judgement_18-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/20318/20318_2020_35_1501_27140_Judgement_18-Mar-2021.pdf </a></h4><h4>44. Having regard to the foregoing discussion, it is hereby directed that henceforth:<br>(a) Bail conditions should not mandate, require or permit contact between the accused and the victim. Such conditions should seek to protect the complainant from any further harassment by the accused;<br>(b) Where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim;<br>(c) In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and copy of the bail order made over to him/her within two days;<br>(d) Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the Cr. PC. In other words, discussion about the dress, behavior, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail;<br>(e) The courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction;<br>(f) Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments, and<br>(g) Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court. <br>45. Further, courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that </h4><h4>(i) women are physically weak and need protection; </h4><h4>(ii) women are incapable of or cannot take decisions on their own; </h4><h4>(iii) men are the “head” of the household and should take all the decisions relating to family; (iv) women should be submissive and obedient according to our culture; </h4><h4>(v) “good” women are sexually chaste; </h4><h4>(vi) motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother; </h4><h4>(vii) women should be the ones in charge of their children, their upbringing and care; </h4><h4>(viii) being alone at night or wearing certain clothes make women responsible for being attacked; </h4><h4>(ix) a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or “has asked for it”; </h4><h4>(x) women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony; (xi) testimonial evidence provided by women who are sexually active may be suspected when assessing “consent” in sexual offence cases; and </h4><h4>(xii) lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.</h4><h4>46. As far as the training and sensitization of judges and lawyers, including public prosecutors goes, this court hereby mandates that a module on gender sensitization be included, as part of the foundational training of every judge. This module must aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny. The module should also emphasize the prominent role that judges are expected to play in society, as role models and thought leaders, in promoting equality and ensuring fairness, safety and security to all women who allege the perpetration of sexual offences against them. Equally, the use of language and appropriate words and phrases should be emphasized as part of this training.<br>47. The National Judicial Academy is hereby requested to devise, speedily, the necessary inputs which have to be made part of the training of young judges, as well as form part of judges’ continuing education with respect to gender sensitization, with adequate awareness programs regarding stereotyping and unconscious biases that can creep into judicial reasoning. The syllabi and content of such courses shall be framed after necessary consultation with sociologists and teachers in psychology, gender studies or other relevant fields, preferably within three months. The course shouldemphasize upon the relevant factors to be considered, and importantly, what should be avoided during court hearings and never enter judicial reasoning. Public Prosecutors and Standing Counsel too should undergo mandatory training in this regard. The training program, its content and duration shall be developed by the National Judicial Academy, in consultation with State academies. The course should contain topics such as appropriate court examination and conduct and what is to be avoided.<br>48. Likewise, the Bar Council of India (BCI) should also consult subject experts and circulate a paper for discussion with law faculties and colleges/universities in regard to courses that should be taught at the undergraduate level, in the LL.B program. The BCI shall also require topics on sexual offences and gender sensitization to be mandatorily included in the syllabus for the All India Bar Examination.<br>49. Before parting, this Court expresses its gratitude for the valuable suggestions and the assistance rendered by the learned Attorney General pursuant to the notice issued. We also appreciate the submissions made on behalf of the appellant(s) and the intervenor(s).<br>50. Each High Court should, with the help of relevant experts, formulate a module on judicial sensitivity to sexual offences, to be tested in the Judicial Services Examination.<br>51. In the light of the above, the bail conditions in the impugned judgment, extracted at para 3 above, are set aside, and expunged from the record.</h4>', '39865066620522acafc77607e082d051.PNG', 'f2143fe1149b49382e2cd86b1abddb38.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-18', 1, '', '', '2021-03-18 23:26:05', '2021-03-18 23:29:44'),
(596, 'CPR551RUSzzXsVqz3V3RIXwxI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bar Council of India shall require topics on sexual offences and gender sensitization to be mandatorily included in the syllabus for the All India Bar Examination. Supreme Court. 18 March 2021', '<h4>Aparna Bhat and others vs State of Madhya Pradesh and another.<br>Criminal Appeal 329 of 2021 decided on 18 March 2021.<br>Justice A.M. Khanwilkar and Justice S. Ravindra Bhat.<br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/20318/20318_2020_35_1501_27140_Judgement_18-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/20318/20318_2020_35_1501_27140_Judgement_18-Mar-2021.pdf&nbsp;</a><br>44. Having regard to the foregoing discussion, it is hereby directed that henceforth:<br>(a) Bail conditions should not mandate, require or permit contact between the accused and the victim. Such conditions should seek to protect the complainant from any further harassment by the accused;<br>(b) Where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim;<br>(c) In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and copy of the bail order made over to him/her within two days;<br>(d) Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the Cr. PC. In other words, discussion about the dress, behavior, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail;<br>(e) The courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction;<br>(f) Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments, and<br>(g) Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court.&nbsp;<br>45. Further, courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that<br>(i) women are physically weak and need protection;<br>(ii) women are incapable of or cannot take decisions on their own;<br>(iii) men are the “head” of the household and should take all the decisions relating to family; (iv) women should be submissive and obedient according to our culture;<br>(v) “good” women are sexually chaste;<br>(vi) motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother;<br>(vii) women should be the ones in charge of their children, their upbringing and care;<br>(viii) being alone at night or wearing certain clothes make women responsible for being attacked;<br>(ix) a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or “has asked for it”;<br>(x) women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony; (xi) testimonial evidence provided by women who are sexually active may be suspected when assessing “consent” in sexual offence cases; and<br>(xii) lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.<br>46. As far as the training and sensitization of judges and lawyers, including public prosecutors goes, this court hereby mandates that a module on gender sensitization be included, as part of the foundational training of every judge. This module must aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny. The module should also emphasize the prominent role that judges are expected to play in society, as role models and thought leaders, in promoting equality and ensuring fairness, safety and security to all women who allege the perpetration of sexual offences against them. Equally, the use of language and appropriate words and phrases should be emphasized as part of this training.<br>47. The National Judicial Academy is hereby requested to devise, speedily, the necessary inputs which have to be made part of the training of young judges, as well as form part of judges’ continuing education with respect to gender sensitization, with adequate awareness programs regarding stereotyping and unconscious biases that can creep into judicial reasoning. The syllabi and content of such courses shall be framed after necessary consultation with sociologists and teachers in psychology, gender studies or other relevant fields, preferably within three months. The course shouldemphasize upon the relevant factors to be considered, and importantly, what should be avoided during court hearings and never enter judicial reasoning. Public Prosecutors and Standing Counsel too should undergo mandatory training in this regard. The training program, its content and duration shall be developed by the National Judicial Academy, in consultation with State academies. The course should contain topics such as appropriate court examination and conduct and what is to be avoided.<br><b style=\"background-color: rgb(255, 255, 0);\">48. Likewise, the Bar Council of India (BCI) should also consult subject experts and circulate a paper for discussion with law faculties and colleges/universities in regard to courses that should be taught at the undergraduate level, in the LL.B program. The BCI shall also require topics on sexual offences and gender sensitization to be mandatorily included in the syllabus for the All India Bar Examination.</b><br>49. Before parting, this Court expresses its gratitude for the valuable suggestions and the assistance rendered by the learned Attorney General pursuant to the notice issued. We also appreciate the submissions made on behalf of the appellant(s) and the intervenor(s).<br>50. Each High Court should, with the help of relevant experts, formulate a module on judicial sensitivity to sexual offences, to be tested in the Judicial Services Examination.<br>51. In the light of the above, the bail conditions in the impugned judgment, extracted at para 3 above, are set aside, and expunged from the record.</h4>', '11d2404f80e73708e42b395df12dba43.png', 'ab4a4f4c880f6cfe5db3b219c1f06dac.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-18', 1, '', '', '2021-03-18 23:36:47', '2021-03-18 23:36:47'),
(597, 'MQOx3A7GZKDJFHHxgVZ3qt33E', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal trial. Bail orders. Dress behavior or past conduct or morals of the prosecutrix should not enter the verdict granting bail. Supreme Court. 18 March 2021. ', '<h4>Aparna Bhat and others vs State of Madhya Pradesh and another.<br>Criminal Appeal 329 of 2021 decided on 18 March 2021.<br>Justice A.M. Khanwilkar and Justice S. Ravindra Bhat.<br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/20318/20318_2020_35_1501_27140_Judgement_18-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/20318/20318_2020_35_1501_27140_Judgement_18-Mar-2021.pdf&nbsp;</a><br>44. Having regard to the foregoing discussion, it is hereby directed that henceforth:<br>(a) Bail conditions should not mandate, require or permit contact between the accused and the victim. Such conditions should seek to protect the complainant from any further harassment by the accused;<br>(b) Where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim;<br>(c) In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and copy of the bail order made over to him/her within two days;<br>(d) Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the Cr. PC. In other words, discussion about the dress, behavior, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail;<br>(e) The courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction;<br>(f) Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments, and<br>(g) Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court.&nbsp;<br>45. Further, courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that<br>(i) women are physically weak and need protection;<br>(ii) women are incapable of or cannot take decisions on their own;<br>(iii) men are the “head” of the household and should take all the decisions relating to family; (iv) women should be submissive and obedient according to our culture;<br>(v) “good” women are sexually chaste;<br>(vi) motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother;<br>(vii) women should be the ones in charge of their children, their upbringing and care;<br>(viii) being alone at night or wearing certain clothes make women responsible for being attacked;<br>(ix) a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or “has asked for it”;<br>(x) women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony; </h4><h4>(xi) testimonial evidence provided by women who are sexually active may be suspected when assessing “consent” in sexual offence cases; and<br>(xii) lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.<br>46. As far as the training and sensitization of judges and lawyers, including public prosecutors goes, this court hereby mandates that a module on gender sensitization be included, as part of the foundational training of every judge. This module must aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny. The module should also emphasize the prominent role that judges are expected to play in society, as role models and thought leaders, in promoting equality and ensuring fairness, safety and security to all women who allege the perpetration of sexual offences against them. Equally, the use of language and appropriate words and phrases should be emphasized as part of this training.<br>47. The National Judicial Academy is hereby requested to devise, speedily, the necessary inputs which have to be made part of the training of young judges, as well as form part of judges’ continuing education with respect to gender sensitization, with adequate awareness programs regarding stereotyping and unconscious biases that can creep into judicial reasoning. The syllabi and content of such courses shall be framed after necessary consultation with sociologists and teachers in psychology, gender studies or other relevant fields, preferably within three months. The course shouldemphasize upon the relevant factors to be considered, and importantly, what should be avoided during court hearings and never enter judicial reasoning. Public Prosecutors and Standing Counsel too should undergo mandatory training in this regard. The training program, its content and duration shall be developed by the National Judicial Academy, in consultation with State academies. The course should contain topics such as appropriate court examination and conduct and what is to be avoided.<br>48. Likewise, the Bar Council of India (BCI) should also consult subject experts and circulate a paper for discussion with law faculties and colleges/universities in regard to courses that should be taught at the undergraduate level, in the LL.B program. The BCI shall also require topics on sexual offences and gender sensitization to be mandatorily included in the syllabus for the All India Bar Examination.<br>49. Before parting, this Court expresses its gratitude for the valuable suggestions and the assistance rendered by the learned Attorney General pursuant to the notice issued. We also appreciate the submissions made on behalf of the appellant(s) and the intervenor(s).<br>50. Each High Court should, with the help of relevant experts, formulate a module on judicial sensitivity to sexual offences, to be tested in the Judicial Services Examination.<br>51. In the light of the above, the bail conditions in the impugned judgment, extracted at para 3 above, are set aside, and expunged from the record.</h4>', '919159b2c50d33bb9d368f71e240b9ce.PNG', 'f2567899473685778abfffee1d603c3f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-18', 1, '', '', '2021-03-18 23:52:28', '2021-03-18 23:52:28');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(598, '7U5RxRnv4o1wKKJVZn05d9dk6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for declaration of title based on adverse possession. Plea can be taken as sword by the plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act to sue on the aforesaid basis. Supreme Court. 7 August 2019', '<h4>Ravinder Kaur Grewal and others vs Manjit Kaur and others. </h4><h4>Civil Appeal 7764 of 2014 decided on 7 August 2019.</h4><h4>Justice Arun Mishra, Justice, S. Abdul Nazeer and Justice M.R. Shah. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2008/4680/4680_2008_4_1501_15805_Judgement_07-Aug-2019.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2008/4680/4680_2008_4_1501_15805_Judgement_07-Aug-2019.pdf</a><br><b style=\"background-color: rgb(255, 255, 0);\">HELD</b>: 56. There is the acquisition of title in favour of the plaintiff though it is negative conferral of right on extinguishment of the right of an owner of the property. The right ripened by prescription by his adverse possession is absolute and on dispossession, he can sue based on “title” as envisaged in the opening part under Article 65 of the Act. Under Article 65, the suit can be filed based on the title for recovery of possession within 12 years of the start of adverse possession, if any, set up by the defendant. Otherwise right to recover possession based on the title is absolute irrespective of limitation in the absence of adverse possession by the defendant for 12 years. The possession as trespasser is not adverse nor long possession is synonymous with adverse possession.<br>57. In Article 65 in the opening part a suit “for possession of immovable property or any interest therein based on title” has been used. Expression “title” would include the title acquired by the plaintiff by way of adverse possession. The title is perfected by adverse possession, has been held in a catena of decisions.<br>58. We are not inclined to accept the submission that there is no conferral of right by adverse possession. Section 27 of the Limitation Act, 1963 provides for extinguishment of right on the lapse of limitation fixed to institute a suit for possession of any property, the right to such property shall stand extinguished. The concept of adverse possession as evolved goes beyond it on completion of period and extinguishment of right confers the same right on the possessor, which has been extinguished and not more than that. For a person to sue for possession would indicate that right has accrued to him in praesenti to obtain it, not in futuro. Any property in Section 27 would include corporeal or incorporeal property. Article 65 deals with immovable property.<br>59. Possession is the root of title and is right like the property. As ownership is also of different kinds of viz. sole ownership, contingent ownership, corporeal ownership, and legal equitable ownership. Limited ownership or limited right to property may be enjoyed by a holder. What can be prescribable against is limited to the rights of the holder. Possession confers enforceable right under Section 6 of the Specific Relief Act. It has to be looked into what kind of possession is enjoyed viz. de facto i.e. actual, “de jure possession”, constructive possession, concurrent possession over a small portion of the property. In case the owner is in symbolic possession, there is no dispossession, there can be formal, exclusive or joint possession. The joint possessor/co-owner possession is not presumed to be adverse. Personal law also plays a role to construe nature of possession.<br>60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser\'s long possession is not synonymous with adverse possession. Trespasser\'s possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.<br>61. Adverse possession is heritable and there can be tacking of adverse possession by two or more persons as the right is transmissible one. In our opinion, it confers a perfected right which cannot be defeated on re-entry except as provided in Article 65 itself. Tacking is based on the fulfilment of certain conditions, tacking may be by possession by the purchaser, legatee or assignee, etc. so as to constitute continuity of possession, that person must be claiming through whom it is sought to be tacked, and would depend on the identity of the same property under the same right. Two distinct trespassers cannot tack their possession to constitute conferral of right by adverse possession for the prescribed period.<br><b style=\"background-color: rgb(255, 255, 0);\">62. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years\' period of adverse possession is over, even owner\'s right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner\'s title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.</b><br>63. When we consider the law of adverse possession as has developed vis-à-vis to property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In such cases, on the land reserved for public utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences, hence, we are constrained to observe that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession.<br>64. Resultantly, we hold that decisions of Gurdwara Sahib v. Gram Panchayat Village Sirthala [Gurdwara Sahib v. Gram Panchayat Village Sirthala, (2014) 1 SCC 669 : (2014) 1 SCC (Civ) 630] and decision relying on it in State of Uttarakhand v. Mandir Sri Laxman Sidh Maharaj [State of Uttarakhand v. Mandir Sri Laxman Sidh Maharaj, (2017) 9 SCC 579 : (2017) 4 SCC (Civ) 671] and Dharampal v. Punjab Wakf Board [Dharampal v. Punjab Wakf Board, (2018) 11 SCC 449 : (2018) 5 SCC (Civ) 148] cannot be said to be laying down the law correctly, thus they are hereby overruled. We hold that plea of acquisition of title by adverse possession can be taken by the plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on the aforesaid basis in case of infringement of any rights of a plaintiff.</h4><p><br></p>', '9ca512af38cea36c8a150779b6091b7e.PNG', 'adf8104f6a854a01e89b040491d77b08.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2019-08-07', 1, '', '', '2021-03-19 02:18:27', '2021-03-19 02:19:30'),
(2697, 'TEYFPwA3X19z5HBd8VoTTBiJJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act. Amendment to Section 8. Application by any person claiming through or under the party to arbitration agreement-is prospective and does NOT apply to suits instituted prior to 23:10:2015.Karnataka High Court.', '<h4><b>Sushma Swaraj vs M/s. Blue Valley Properties Pvt Ltd.&nbsp;</b></h4><h4><b>Writ Petition 28968 of 2018 decided on 17 March 2021.&nbsp;</b></h4><h4><b>Justice Krishna S.Dixit.&nbsp;</b></h4><div><b><br></b></div><h4><b>Petitioner is the plaintiff in O.S.No.458/2014; the 1st respondent is the 1st defendant and the 2nd respondent is the 2nd defendant; suit is for a decree of specific performance; it&nbsp; is founded on the Agreement to Sell dated 14.09.2012; 1st defendant has filed the Written Statement resisting the suit on merits; however the 2nd defendant has filed application in I.A.No.2 u/s.8 of the Arbitration &amp; Conciliation Act, 1996, seeking relegation of the plaintiff to arbitration; this application having been favoured, the petitioner is grieving before the Writ Court.</b></h4><h4><b>3. Having heard the learned counsel for the parties and having perused the petition papers, this&nbsp; Court&nbsp; is&nbsp; inclined to grant indulgence in the matter for the following reasons:</b></h4><h4 style=\"margin-left: 25px;\"><b>(a)<span style=\"white-space: pre;\">	</span>Sub-section (1) of section 8 of 1996 Act prior to amendment had read as under:</b></h4><h4 style=\"margin-left: 25px;\"><b>“8. Power to refer parties to arbitration where there is an arbitration agreement.—</b></h4><h4 style=\"margin-left: 25px;\"><b>(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration”.</b></h4><h4><b>This provision&nbsp; of&nbsp; the&nbsp; section&nbsp; was&nbsp; broadly&nbsp; analogous&nbsp; to section 34 of the erstwhile Arbitration&nbsp; Act, 1940 and Article&nbsp; 8&nbsp; of UNCITRAL Model Law; section 34 of the 1940 Act gave discretion to the court to stay the&nbsp; legal proceedings where&nbsp; the subject matter was covered by an arbitration agreement; section 8 of the 1996 Act mandates the judicial authority before whom the proceedings are brought, to refer the matter for arbitration, if it is covered by the arbitration agreement and reference is applied for at the first instance of submitting the statement on the substance of the dispute; thus there&nbsp; is no discretion to disobey the dicta of the Parliament.</b></h4><h4><b>(b) The text of the original sub-section (1) of section 8 permitted only a party to the arbitration agreement to relegate the suit or such other proceedings to arbitration; however the Parliament vide Act 3 of 2016 has amended the said provision which now reads as under:</b></h4><h4 style=\"margin-left: 25px;\"><b>“8. Power to refer parties to arbitration where there is an arbitration agreement.—</b></h4><h4 style=\"margin-left: 25px;\"><b>(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement&nbsp;or any person claiming through or under him,&nbsp;so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists”.</b></h4><h4><b>Therefore as the law now stands, the reference to arbitration can be sought for either by a party to the arbitration agreement or any person claiming under such party, is true; the question for consideration is whether this amendment is retrospective in operation as to apply to the suit which is instituted prior to the said amendment.</b></h4><h4><span style=\"background-color: rgb(255, 255, 0);\"><b>(c)<span style=\"white-space: pre;\">	</span>An amendment of law bringing about a change as to the forum of adjudication ordinarily does not affect pending actions, unless the legislative intent suggests to the contrary; to decide whether pending proceedings are affected or not, language of the statute has to be examined and the legislative intent to bring within reach of the statute even the pending proceedings has to be ascertained; of course, there need not be an express provision; at times, Benthamite criticism that law shows its face in mask, proves true; apparently this 2016 amendment is with retrospective effect from 23.10.2015; therefore the retrospectivity is limited to this cut-off date and cannot travel back in time longer than what is limited by the law maker himself; metaphorically speaking, laws like rivers do not ordinarily flow reverse; normally, amendment of substantive law is prospective in operation and amendment of procedural law is retrospective in effect, unless a contra intention is implicit in the language of the amendment itself; though the amendment in question can be said to be of procedural nature, because it relates to forum ie., the Court/Arbitrator, its retrospectivity which otherwise would have gone back to the date of enactment of the principal statute, is made limited to a specific period of past ie., 23.10.2015; therefore the suits instituted&nbsp; prior&nbsp; to this cut-off date do not fall within the ambit of the amended provision, as rightly contended by learned counsel for the petitioner.</b></span></h4><h4><b>In the above circumstances, this writ petition succeeds;&nbsp; a Writ of Certiorari issues quashing the impugned order; the subject application of the 2nd respondent is dismissed and consequently learned Judge of the&nbsp; court below is requested&nbsp; to try &amp; dispose off the suit, preferably within an outer limit&nbsp; of one year, costs having been made easy.</b></h4><h4><span style=\"background-color: rgb(255, 255, 0);\"><b>This Court places on record its deep appreciation of the passion and elegance with which both the learned advocates advanced the arguments after thorough preparation of the case.</b></span></h4>', 'ddceab5b204d20e64fb2a6a4385ccb51.jpeg', '650d312f59498908913c936d25e3f89c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-18', 1, '', '', '2023-02-18 11:19:34', '2023-02-18 11:19:34'),
(600, 'QGrJExDOxydA37BfhSNfphOWr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Imprisonment ordered in default of fine in different and independent transactions. Sentence will run consecutively and NOT concurrently. Karnataka High Court.', '<h4>C.Bharathi vs Shalinin and another. </h4><h4>Criminal Petition 705 of 2020 and connected matters decided on 10 March 2021.&nbsp;</h4><h4>Justice H.P.Sandesh&nbsp;</h4><h4><br>These petitions are filed by the common accused invoking Section 482 of Cr.P.C, praying this Court to direct the second respondent to release the petitioner/accused, forthwith, from the Central Prison, Bengaluru, in respect of the following cases in which the petitioner herein convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and undergoing substantive sentence and default sentence.&nbsp;<br><br></h4><h4>2. The petitioner, who is the common accused in the above cases. In the petitions, it is contended that consequent upon the Judgment of conviction and sentence in all 10 cases both substantive sentence and default sentence she has been serving sentence in prison from 08.02.2017. Though, the petitioner had made a representation on 22.11.2018 and 05.12.2018, the Government of Karnataka and Chief Superintendent Central Prison, Bengaluru, that she has already served the imprisonment term, despite of which the authorities did not consider the request made by the accused/petitioner, unless this Court interfere and make the sentence to run concurrently instead of consecutively as contemplated under Section 427 of Cr.P.C.<br><br></h4><h4>16. Having heard the arguments of the respective counsel and also considering the principles laid down in the judgments referred supra, it is clear that <b style=\"background-color: rgb(255, 255, 0);\">if it is single transaction, then, the petitioner is entitled for the order to run the sentence concurrently, if it is not a single transaction, different and independent transaction, then, the petitioner is not entitled for the benefit. </b>The Apex Court in V.K. Bansal’s case (supra), made it clear that <b style=\"background-color: rgb(255, 255, 0);\">if the transactions are different there cannot be any concurrent sentence and further observed in the Judgment that only substantive sentences can be directed to run concurrently and sentences awarded in default of payment of fine, compensation cannot be directed to run concurrently. </b>Now this Court has to examine whether all the transactions are pertaining to a single transaction as contended by the learned counsel for the petitioner and also considered the contention of the respondents that the transaction is different transaction. The Apex Court also in the recent Judgment in Shyam Pal’s case (supra), discussed in paragraph No.13, the said benefit cannot be extended to transactions which are distinctly different, separate and independent of each other and amongst others. In the case on hand, it has to be noted that the complainants are different. No doubt, the offences invoked against the petitioner herein under Section 138 of the NI Act. It is also not in dispute that the judgments are passed on different dates, but in 7 cases, the judgments are passed by the very same judge and the judgments are delivered on 21.07.2017. Having perused the details of the cases also the fine amount imposed also different in three cases only default sentence has been awarded in other cases sentence of six months as well as directed to pay the fine amount in default six months sentence also imposed. Hence, it&nbsp; is clear that in the cases on hand, there is a substantive sentence and also a default sentence against the petitioner herein.<br><br></h4><h4>28. Having perused the factual aspects of each case, it is emerged that it is not a single transaction. In seven cases, there were loan transactions between the parties and the transactions are of the years 2014 and 2015 and in other cases the complainants are the subscribers of two chits and those two chit transactions are also the different transactions. When such being the case, when the transactions are different, the question of passing an order invoking Section 427(1) of Cr.P.C, the sentence shall run concurrently with the previous sentences does not arise.<br><br></h4><h4>33.<span style=\"white-space:pre\">	</span>In view of the discussions made above, I pass the following:<br><br></h4><h4>ORDER<br>The petitions are dismissed.<br><br><br><br></h4>', 'd7084663f5fe0209c3344b8c59a95786.jpeg', 'f8dcffad02ace05039ec7638c74cb683.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-04', 1, '', '', '2021-03-19 23:20:43', '2023-02-04 12:20:17'),
(601, 'ofIuvs2XL0aWG1nVIoKfkq07k', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka PTCL Act is comprehensive. The Karnataka SC-ST Commission has NO powers to direct revenue authorities to execute orders under the PTCL Act. Karnataka High Court. 21 January 2021', '<h4>Prakashnath@Shekarappa vs The State of Karnataka and others.<br>Writ Petition 23664 of 2017 decided on 21 January 2021.<br>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/362162/1/WP23664-17-21-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/362162/1/WP23664-17-21-01-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: The writ petitioner is calling in question the validity and correctness, including the authority of the 2nd respondent- Assistant Commissioner to entertain an application under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978.<br></h4><h4><span style=\"font-size: 1.3125rem;\">3.&nbsp;</span><span style=\"font-size: 1.3125rem;\">Consequent to the said permission having been granted, respondents No.3 to 5 executed an absolute&nbsp; sale&nbsp; deed dated 16.09.2006, in favour of respondent No.6 for valuable sale consideration of Rs.46,00,000/-. Consequently,</span>the petitioner herein purchased the said property from respondent No.6 under sale deed dated 26.10.2020.&nbsp; Thereafter, the lands were converted from agricultural to non- agricultural purposes, by an order of the&nbsp; Deputy&nbsp; Commissioner. Curiously, respondents No. 3 to 5 approached the Assistant Commissioner on 20.02.2016 by filing an application under Section 5 of the PTCL Act, seeking&nbsp; resumption and restoration of the lands in their favour. The Assistant Commissioner proceeded to&nbsp; pass&nbsp; the&nbsp; impugned order dated 28.07.2016, declaring that the sale deeds dated 16.09.2006 and 26.10.2010 are null and void and&nbsp; consequently, directed resumption and restoration of the land&nbsp; in favour of respondents No.3 to 5 herein. The Assistant Commissioner has also directed restoration of the names of respondents No.3 to 5 in the revenue records.</h4><h4>4. Further, respondents No.3 to 5 approached respondent No.7-<b>The Karnataka Scheduled Castes and Scheduled Tribes Commission seeking a direction to the revenue authorities to put them in possession of the land in terms of the directions issued by the Assistant Commissioner. </b>A notice was issued by the Commissioner to the concerned Tahsildar. Being aggrieved, the petitioner has approached this Court.&nbsp;<br>14. Though this Court is alive to the grievance of respondents No.3 to 5 that they may have been misled at the instance of the sixth respondent or that they may not have received the full sale consideration as shown in the sale deed, that by itself will not move this Court to accept the contention of the learned Counsel for respondents No.3 to 5 that the Assistant Commissioner had jurisdiction to entertain the application. Being sympathetic to the grievance raised by respondents No.3 to 5 is one thing, but when it comes to dispensation of justice, its another thing. If a quasi-judicial authority exceeds the&nbsp; powers vested under the enactment,&nbsp; this Court is required to use its extraordinary&nbsp; jurisdiction&nbsp; under Article 226 of the Constitution of India to strike down such unauthorized action. Here is a clear case of exceeding of the jurisdiction and authority of the Assistant Commissioner in entertaining the application filed by respondents No.3 to 5.<br><b style=\"background-color: rgb(255, 255, 0);\">15. Similarly, the seventh respondent-Commission also has no powers to direct the revenue authorities to execute an order passed by the Assistant Commissioner or the Deputy Commissioner under the provisions of the PTCL Act. The executing powers are clearly vested with the authorities under the Act itself and therefore there is no need for an external authority alien to the provisions of the PTCL Act to entertain petitions to execute an order passed under the PTCL Act.<br></b>17. For the foregoing reasons, the writ petition is allowed. The impugned order dated 28.07.2016 at Annexure ‘H’ and the consequential order dated 26.04.2017 at Annexure ‘K’&nbsp; directing re-entry of&nbsp; the names of respondents No.3 to 5&nbsp; &nbsp;in the revenue records are hereby quashed and set aside. <b style=\"background-color: rgb(255, 255, 0);\">Further, the notice dated 15.05.2017 issued by the seventh respondent-Commission at Annexure ‘N’ is also quashed and&nbsp; set aside.</b><br><br></h4><div><br></div>', '4c106614ad706367d2e4a301ab2c44a6.jpg', '2d7f01a5dcb13c75eda4efb3b363c48d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-21', 1, '', '', '2021-03-20 01:56:43', '2021-03-20 01:56:43'),
(602, 'Wd0Un8olVP0BNjQEdTZIvx5eu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Section 94. Accused can NOT ask for production of station Daily Diary logbooks etc without justifiable reasons. Court cannot summon documents just for asking. Karnataka High Court. 8 March 2021 ', '<h4>Y. Venkatesh and others vs State of Karnataka. </h4><h4>Criminal Petition 6941 of 2015 decided on 8 March 2021. </h4><h4>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/372630/1/CRLP6941-15-08-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/372630/1/CRLP6941-15-08-03-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraph</span>s:&nbsp;This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973, praying to call for the records in S.C.No.16/2010, presently pending on the file of the III Addl. District and Sessions Judge, Bangalore Rural District, sitting at Anekal and further be pleased to set aside the order dated 19-09-2015 passed in S.C.No.16/2010 by III Additional District and Sessions Judge, Bangalore Rural District, on the application filed by the petitioners/accused under Section 91 of the Code of Criminal Procedure and grant the said application in its entirety.<br></h4><h4 style=\"\">4. The Trial Court, after hearing both side on the said application, by its order dated 19-09-2015, rejected the said application filed by the accused. Challenging the said order, the accused Nos.1 to 4 have preferred the present petition.<br>10.Section 91 of the Code of Criminal Procedure, 1973, reads as below:</h4><h4 style=\"margin-left: 25px;\"><b>“91. Summons to produce document or other thing.-<br>(1) whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this code by or before such Court or Officer, such court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.<br>(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.<br>(3) Nothing in this section shall be deemed –<br>(a) to affect, sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers’ Books Evidence Act, 1891 (13 of 1891), or<br>(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.”</b><br></h4><h4 style=\"\">A bare reading of the said Section, no doubt, empowers the Court or any Officer in charge of the Police Station who feels that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry or trial, may summon those documents. The said Section makes it amply clear that, merely as a routine and merely by just asking by a party including the accused, a document need not be and cannot be summoned. Before summoning the said document, the Court or the Officer summoning the document must satisfy itself/himself that it is necessary or desirable for the purposes of investigation or the trial.<br>11. The Hon\'ble Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi reported in (2005) 1 Supreme Court Cases 568, with respect to Section 91 of the Cr.P.C., was pleased to hold that the necessity and desirability of the document is to be examined considering the stage when such a prayer is made and the party who makes it, whether Police or accused...&nbsp;Hon\'ble Apex Court was pleased to observe as below:-<br></h4><h4 style=\"margin-left: 25px;\"><b>\"94. We do not find any force in the said contention. No doubt Daily Diary is a document which is in constant use in police station. But no prosecution is expected to produce such diaries as a matter of course in every prosecution case for supporting the police version. If such diaries are to be produced by prosecution as a matter of course in every case, the function of the police station would be greatly impaired. It is neither desirable nor feasible for the prosecution to produce such diaries in all cases. Of course it is open to the defence to move the Court for getting down such diaries if the defence wants to make use of it.\"</b></h4><h4 style=\"\">This judgment makes it clear that, though a party, particularly, the accused in their defence can move the Court for getting down such documents, like the diary, as a matter of routine, the same cannot be summoned, since it is neither desirable nor feasible for the prosecution to produce such diary in all cases.<br>1<b>7. The nature of the documents sought to be summoned by the accused through the present application filed under Section 91 of the Cr.P.C. appears as though they are intending to bring the entire Police Station before the Court not just necessarily of those documents which may be necessary at the appropriate stage during the course of the trial. Probably, all the registers, books, log books, notebooks, everything which a Police Station may maintain during the course of its activity, including the investigation of the criminal case appears to be attempted to be summoned without there being any specific reason as to why they are necessary, that too, particularly, at the stage when the present application is made. Furthermore, it is not necessary to say that, when in a Criminal Case like the one on hand, it is not upon the accused to disprove their case or to show who the guilty is, and the entire burden of proving the guilt of the accused beyond reasonable doubt would be solely upon the prosecution, why the accused was in requirement of these documents, at this stage, is also not forthcoming. It is also to be suffice for the accused to imbibe a serious doubt in the case of the prosecution if he succeeds, naturally, the same would enure to the benefit of the accused, which exercise the accused could do even without summoning these documents. Even otherwise, if the accused feels that the documents which they are intending to, may be of some necessity, still, if according to the accused, if there are serious procedural lapses on the part of the Police Officer, in the cross-examination of the said Investigating Officer also, the accused would be at liberty to highlight the same, in which event, proving that there are no such procedural omission or commission or any irregularities, would be again on the shoulder of the prosecution. In such a circumstance, I am of the view that, there is no necessity or requirement or bona fide reason in the application filed by the accused for summoning those documents. It is noticing these aspects, the Trial Court has rightly rejected the application filed by the accused. Hence, I do not find any element of abuse of process of law or any interest of justice, warranting the allowing of the application filed by the accused, under Section 91 of the Cr.P.C.</b><br>Accordingly I proceed to pass the following:<br>O R D E R<br>The petition stands dismissed as devoid of merit;<br><br><br><br><br><br><br><br><br></h4><div><br></div>', '4104d006998b81300ea7d88acfaf192e.jpg', 'e75a3f3144a73d266382cf634bc594b2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-08', 1, '', '', '2021-03-20 02:45:22', '2021-03-19 16:39:32'),
(603, 'gAzTm5szeAlxbnnul1jglaYXx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act. Delay beyond prescribed period in filing appeal under Section 37 can be condoned by way of exception. Supreme Court. 19 March 2021', '<h4>Government of Maharashtra vs M/s. Borse Brothers Engineers &amp; Contractors Pvt Ltd. </h4><h4>Civil Appeal 995 of 2021 decided on 19 March 2021. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/195/195_2021_33_1501_27050_Judgement_19-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/195/195_2021_33_1501_27050_Judgement_19-Mar-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 2. The substantial question of law which arises in these appeals is as to whether the judgment of a Division Bench of this Court in N.V. International v. State of Assam, (2020) 2 SCC 109 lays down the law correctly. This Court followed its earlier judgment in Union of India v. Varindera Constructions Ltd., (2020) 2 SCC 111.</h4><h4><b>3. In two of the three appeals before us, i.e., Civil Appeal arising out of SLP (C) No. 665 of 2021 and Civil Appeal arising out of SLP (C) Diary No.18079 of 2020, the High Courts of Bombay and Delhi vide judgments dated 17.12.2020 and 15.10.2019 respectively, dismissed the appeals filed by the Government of Maharashtra and by the Union of India respectively, refusing to condone the delay in the filing of the appeal under section 37 of the Arbitration and Conciliation Act, 1996 beyond 120 days.</b> So far as the Civil Appeal arising out of SLP (C) No.15278 of 2020 is concerned, the <b>High Court of Madhya Pradesh refused to follow the judgment of this Court in N.V. International stating that there is a conflict between this judgment and the judgment of a larger Bench of this Court reported in Consolidated Engg. Enterprises v. Irrigation Deptt., (2008) 7 SCC 169 . It was, therefore, held that it was open for the High Court to condone the delay applying section 5 of the Limitation Act, 1963 and, as a matter of fact, a delay of what was stated to be 57 days was condoned.</b></h4><h4>23. Section 37 of the Arbitration Act, when read with section 43 thereof, makes it clear that the provisions of the Limitation Act will apply to appeals that are filed under section 37. This takes us to Articles 116 and 117 of the Limitation Act, which provide for a limitation period of 90 days and 30 days, depending upon whether the appeal is from any other court to a High Court or an intra-High Court appeal. <b>There can be no doubt whatsoever that section 5 of the Limitation Act will apply to the aforesaid appeals, both by virtue of section 43 of the Arbitration Act and by virtue of section 29(2) of the Limitation Act.&nbsp;</b><br>31. Thus, from the scheme of the Arbitration Act as well as the aforesaid judgments, <b>condonation of delay under section 5 of the Limitation Act has to be seen in the context of the object of speedy resolution of disputes.</b><br>33. The vexed question which faces us is whether, first and foremost, the application of section 5 of the Limitation Act is excluded by the scheme of the Commercial Courts Act, ... The first important thing to note is that section 13(1A) of the Commercial Courts Act does not contain any provision akin to section 34(3) of the Arbitration Act. Section 13(1A) of the Commercial Courts Act only provides for a limitation period of 60 days from the date of the judgment or order appealed against, without further going into whether delay beyond this period can or cannot be condoned.<br>41. For all these reasons we reject the argument made by Shri George that the application of section 5 of the Limitation Act is excluded given the scheme of Commercial Courts Act.&nbsp;<br>53. Reading the Arbitration Act and the Commercial Courts Act as a whole, it is clear that when section 37 of the Arbitration Act is read with either Article 116 or 117 of the Limitation Act or section 13(1A) of the Commercial Courts Act, the object and context provided by the aforesaid statutes, read as a whole, is the speedy disposal of appeals filed under section 37 of the Arbitration Act. To read section 5 of the Limitation Act consistently with the aforesaid object, it is necessary to discover as to what the expression “sufficient cause” means in the context of condoning delay in filing appeals under section 37 of the Arbitration Act.<br>56. Given the object sought to be achieved under both the Arbitration Act and the Commercial Courts Act, that is, the speedy resolution of disputes, the expression “sufficient cause” is not elastic enough to cover long delays beyond the period provided by the appeal provision itself. Besides, the expression “sufficient cause” is not itself a loose panacea for the ill of pressing negligent and stale claims<br><b>61. Given the aforesaid and the object of speedy disposal sought to be achieved both under the Arbitration Act and the Commercial Courts Act, for appeals filed under section 37 of the Arbitration Act that are governed by Articles 116 and 117 of the Limitation Act or section 13(1A) of the Commercial Courts Act, a delay beyond 90 days, 30 days or 60 days, respectively, is to be condoned by way of exception and not by way of rule. In a fit case in which a party has otherwise acted bona fide and not in a negligent manner, a short delay beyond such period can, in the discretion of the court, be condoned, always bearing in mind that the other side of the picture is that the opposite party may have acquired both in equity and justice, what may now be lost by the first party’s inaction, negligence or laches.&nbsp;<br><br></b><br><br></h4>', 'b52f631e5af716d2278229f0293a9409.PNG', '3929cb9b2e06b37fd0379cc25fdbb5b7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-19', 1, '', '', '2021-03-20 04:00:19', '2021-03-20 04:00:19');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(604, 'ZdDxXUXBH5J5qUjugiGRiAxq4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Limitation Act. Section 5- Sufficient Cause-explained. It is elastic enough to yield different results depending upon the object and context of a statute. Supreme Court. 19 March 2021', '<h4>Government of Maharashtra vs M/s. Borse Brothers Engineers & Contractors Pvt Ltd.</h4><h4>Civil Appeal 995 of 2021 decided on 19 March 2021.</h4><h4>Judgment Link:<a href=\"https://main.sci.gov.in/supremecourt/2021/195/195_2021_33_1501_27050_Judgement_19-Mar-2021.pdf\" target=\"_blank\"> https://main.sci.gov.in/supremecourt/2021/195/195_2021_33_1501_27050_Judgement_19-Mar-2021.pdf</a></h4><h4 style=\"\">54. The expression “sufficient cause” contained in section 5 of the Limitation Act is elastic enough to yield different results depending upon the object and context of a statute. Thus, in <b><i>Ajmer Kaur v. State of Punjab, (2004) 7 SCC 381</i></b>, this Court, in the context of section 11(5) of the Punjab Land Reforms Act, 1972, held as follows:</h4><h4 style=\"margin-left: 25px;\">“10. Permitting an application under Section 11(5) to be moved at any time would have disastrous consequences. The State Government in which the land vests on being declared as surplus, will not be able to utilise the same. The State Government cannot be made to wait indefinitely before putting the land to use. Where the land is utilised by the State Government, a consequence of the order passed subsequently could be of divesting it of the land. Taking the facts of the present case by way of an illustration, it would mean that the land which stood mutated in the State Government in 1982 and which was allotted by the State Government to third parties in 1983, would as a result of reopening the settled position, lead to third parties being asked to restore back the land to the State Government and the State Government in turn would have to be divested of the land. The land will in turn be restored to the landowner. This will be the result of the land being declared by the Collector as not surplus with the landowner. The effect of permitting such a situation will be that the land will remain in a situation of flux. There will be no finality. The very purpose of the legislation will be defeated. The allottee will not be able to utilise the land for fear of being divested in the event of deaths and births in the family of the landowners. Deaths and births are events which are bound to occur. Therefore, it is reasonable to read a time-limit in sub-section (5) of Section 11. The concept of reasonable time in the given facts would be most appropriate. An application must be moved within a reasonable time. The facts of the present case demonstrate that redetermination under sub-section (5) of Section 11 almost 5 years after the death of Kartar Kaur and more than 6 years after the order of the Collector declaring the land as surplus had become final, has resulted in grave injustice besides defeating the object of the legislation which was envisaged as a socially beneficial piece of legislation. Thus we hold that the application for redetermination filed by Daya Singh under sub-section (5) of Section 11 of the Act on 21-6-1985 was liable to be dismissed on the ground of inordinate delay and the Collector was wrong in reopening the issue declaring the land as not surplus in the hands of Daya Singh and Kartar Kaur.<br>11. The above reasoning is in consonance with the provision in sub-section (7) of Section 11 of the Act. Subsection (7) uses the words “where succession has opened after the surplus area or any part thereof has been determined by the Collector …”. The words “determined by the Collector” would mean that the order of the Collector has attained finality. The provisions regarding appeals, etc. contained in Sections 80-82 of the Punjab Tenancy Act, 1887, as made applicable to proceedings under the Punjab Land Reforms Act, 1972, show that the maximum period of limitation in case of appeal or review is ninety days. The appeal against the final order of the Collector dated 30-9- 1976 whereby 3.12 hectares of land had been declared as surplus was dismissed on 27-3-1979. The order was allowed to become final as it was not challenged any further. Thus the determination by the Collector became final on 27-3-1979. The same could not be reopened after a lapse of more than 6 years by order dated 23-7-1985. The subsequent proceedings before the Revenue Authorities did not lie. The order dated 23-7-1985 is non est. All the subsequent proceedings therefore fall through. The issue could not have been reopened.”<br></h4><h4 style=\"\">55. Nearer home, in <b><i>Brahampal v. National Insurance Company, 2020 SCC OnLine SC 1053</i></b>, this Court specifically referred to the difference between a delay in filing commercial claims under the Arbitration Act or the Commercial Courts Act and claims under the<br>Motor Vehicles Act, 1988, as follows:</h4><h4 style=\"margin-left: 25px;\">“16. This Court has firstly held that purpose of conferment of such power must be examined for the determination of the scope of such discretion conferred upon the court. [refer to Bhaiya Punjalal Bhagwandin v. Dave Bhagwatprasad Prabhuprasad, AIR 1963 SC 120; Shri Prakash Chand Agarwal v. Hindustan Steel Ltd., (1970) 2 SCC 806]. Our analysis of the purpose of the Act suggests that such discretionary power is conferred upon the Courts, to enforce the rights of the victims and their dependents. The legislature intended that Courts must have such power so as to ensure that substantive justice is not trumped by technicalities.<br>“22. Therefore, the aforesaid provision being a beneficial legislation, must be given liberal interpretation to serve its object. Keeping in view the substantive rights of the parties, undue emphasis should not be given to technicalities. In such cases delay in filing and refiling cannot be viewed strictly, as compared to commercial claims under the Arbitration and Concilliation Act, 1996 or the Commercial Courts Act, 2015. In P. Radha Bai v. P. Ashok Kumar, (2019) 13 SCC 445, wherein this Court while interpreting Section 34 of the Arbitration Act, held that the right to object to an award itself is substantively bound with the limitation period prescribed therein and the same cannot merely a procedural prescription. In effect the Court held that a complete petition, has to be filed within the time prescribed under Section 34 of the Arbitration Act and ‘not thereafter’. The Court while coming to the aforesaid conclusion, reasoned as under:<br></h4><h4 style=\"margin-left: 25px;\">“36.1 First, the purpose of the Arbitration Act was to provide for a speedy dispute resolution process. The Statement of Objects and Reasons reveal that the legislative intent of enacting the Arbitration Act was to provide parties with an efficient alternative dispute resolution system which gives litigants an expedited resolution of disputes while reducing the burden on the courts. Article 34(3) reflects this intent when it defines the commencement and concluding period for challenging an award. This Court in Popular<br>Construction case [Union of India v. Popular Construction Co., (2001) 8 SCC 470] highlighted the importance of the fixed periods under the Arbitration Act. We may also add that the finality is a fundamental principle enshrined under the Arbitration Act and a definitive timelimit for challenging an award is necessary for ensuring finality. If Section 17 were to be applied, an award can be challenged even after 120 days. This would defeat the Arbitration Act\'s objective of speedy resolution of disputes. The finality of award would also be in a limbo as a party can challenge an award even after the 120 day period.”</h4><h4 style=\"margin-left: 25px;\">“23. Coming back to the Motor Vehicles Act, the legislative intent is to provide appropriate compensation for the<br>victims and to protect their substantive rights, in pursuit of the same, the interpretation should not be as strict as commercial claims as elucidated above.<br>24. Undoubtedly, the statute has granted the Courts with discretionary powers to condone the delay, however at the same time it also places an obligation upon the party to justify that he was prevented from abiding by the same due to the existence of “sufficient cause”. Although there exists no strait jacket formula for the Courts to condone delay, but the Courts must not only take into consideration the entire facts and circumstances of case but also the conduct of the parties. The concept of reasonableness dictates that, the Courts even while taking a liberal approach must weigh in the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence and lackadaisical attitude of the other, this Court shall refrain from exercising the aforesaid discretionary relief.<br>25. Taking into consideration the facts and circumstances of the present case, we are of the opinion that the delay of 45 days has been properly explained by the appellants, which was on account of illness of the wife of Appellant No. 1. It was not appropriate on the part of the High Court to dismiss the appeal merely on the ground of delay of short duration, particularly in matters involving death in motor accident claims. Moreover, in the present case no mala fide can be imputable against the appellants for filing the appeal after the expiry of ninety days. Therefore, we are of the opinion that the strict approach taken in the impugned order is hyper technical and cannot be sustained in the eyes of law.”</h4><h4>56. Given the object sought to be achieved under both the ArbitrationAct and the Commercial Courts Act, that is, the speedy resolution ofdisputes, the expression “sufficient cause” is not elastic enough to cover long delays beyond the period provided by the appeal provision itself. Besides, the expression “sufficient cause” is not itself a loose panacea for the ill of pressing negligent and stale claims. This Court, in <b><i>Basawaraj v. Land Acquisition Officer, (2013) 14 SCC 81,</i></b> has held:</h4><h4 style=\"margin-left: 25px;\">“9. Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See Manindra Land and Building Corpn. Ltd. v. BhutnathBanerjee [AIR 1964 SC 1336] , Mata Din v. A. Narayanan [(1969) 2 SCC 770 : AIR 1970 SC 1953] , Parimal v. Veena [(2011) 3 SCC 545 : (2011) 2 SCC (Civ) 1 : AIR 2011 SC<br>1150] and Maniben Devraj Shah v. Municipal Corpn. of Brihan Mumbai [(2012) 5 SCC 157 : (2012) 3 SCC (Civ) 24 : AIR 2012 SC 1629].)<br>10. In Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] this Court explained the difference between a “good cause” and a “sufficient cause” and observed that every “sufficient cause” is a good cause and vice versa. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof than that of “sufficient cause”.<br>11. The expression “sufficient cause” should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (Vide Madanlal v. Shyamlal [(2002) 1 SCC 535 : AIR 2002 SC 100] and Ram Nath Sao v. Gobardhan Sao [(2002) 3 SCC 195 : AIR 2002 SC 1201] .) </h4><h4 style=\"margin-left: 25px;\">12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. “A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.” The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means “the law is hard but it is the law”, stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.<br>13. The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury\'s Laws of England, Vol. 28, p. 266: “605. Policy of the Limitation Acts.—The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence.” An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party\'s own inaction, negligence or laches. (See Popat and Kotecha Property v. SBI Staff Assn. [(2005) 7 SCC 510] , Rajender Singh v. Santa Singh<br>[(1973) 2 SCC 705 : AIR 1973 SC 2537] and Pundlik Jalam Patil v. Jalgaon Medium Project [(2008) 17 SCC 448 : (2009) 5 SCC (Civ) 907] .)<br>14. In P. Ramachandra Rao v. State of Karnataka [(2002) 4 SCC 578 : 2002 SCC (Cri) 830 : AIR 2002 SC 1856] this Court held that judicially engrafting principles of limitation amounts to legislating and would fly in the face of law laid down by the Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak [(1992) 1 SCC 225 : 1992 SCC (Cri) 93 : AIR 1992 SC 1701] .<br>15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.”</h4><h4>57. Likewise, merely because the government is involved, a different yardstick for condonation of delay cannot be laid down. This was felicitously stated in <i><b>Postmaster General v. Living Media India Ltd., (2012) 3 SCC 563 </b></i>[“Postmaster General”], as follows:</h4><h4 style=\"margin-left: 25px;\">“27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically<br>merely because the Government or a wing of the Government is a party before us.<br>28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.<br>29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.”</h4><h4>58. The decision in Postmaster General (supra) has been followed in the following subsequent judgments of this Court:<br>i) <i><b>State of Rajasthan v. Bal Kishan Mathur, (2014) 1 SCC 592 at paragraphs 8-8.2;<br>ii) State of U.P. v. Amar Nath Yadav, (2014) 2 SCC 422 at paragraphs 2-3;<br>iii) State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709 at paragraphs 11-13; and<br>iv) State of M.P. v. Bherulal, (2020) 10 SCC 654 at paragraphs 3-4.</b></i><br></h4><h4>59. In a recent judgment, namely, <i><b>State of M.P. v. ChaitramMaywade, (2020) 10 SCC 66</b></i>7, this Court referred to Postmaster General (supra), and held as follows:</h4><h4 style=\"margin-left: 25px;\">“1. The State of Madhya Pradesh continues to do the same thing again and again and the conduct seems to be<br>incorrigible. The special leave petition has been filed after a delay of 588 days. We had an occasion to deal with such inordinately delayed filing of the appeal by the State of Madhya Pradesh in State of M.P. v. Bherulal [State of M.P. v. Bherulal, (2020) 10 SCC 654] in terms of our order dated 15-10-2020.<br>2. We have penned down a detailed order in that case and we see no purpose in repeating the same reasoning again except to record what are stated to be the facts on which the delay is sought to be condoned. On 5-1-2019, it is stated that the Government Advocate was approached in respect of the judgment delivered on 13-11-2018 [Chaitram Maywade v. State of M.P., 2018 SCC OnLine HP 1632] and the Law Department permitted filing of the SLP against the impugned order on 26-5-2020. Thus, the Law Department took almost about 17 months\' time to decide whether the SLP had to be filed or not. What greater certificate of incompetence would there be for the Legal Department!<br>3. We consider it appropriate to direct the Chief Secretary of the State of Madhya Pradesh to look into the aspect of revamping the Legal Department as it appears that the Department is unable to file appeals within any reasonable period of time much less within limitation. These kinds of excuses, as already recorded in the aforesaid order, are no more admissible in view of the judgment in Postmaster General v. Living Media (India) Ltd. [Postmaster General v. Living Media (India) Ltd., (2012) 3 SCC 563 : (2012) 2 SCC (Civ) 327 : (2012) 2 SCC (Cri) 580 : (2012) 1 SCC (L&S) 649]<br>4. We have also expressed our concern that these kinds of the cases are only “certificate cases” to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue. The object is to save the skin of officers who may be in default. We have also recorded the irony of the situation where no action is taken against the officers who sit on these files and do nothing.<br>5. Looking to the period of delay and the casual manner in which the application has been worded, the wastage of judicial time involved, we impose costs on the petitioner State of Rs 35,000 to be deposited with the Mediation and Conciliation Project Committee. The amount be deposited within four weeks. The amount be recovered from the officer(s) responsible for the delay in filing and sitting on the files and certificate of recovery of the said amount be also filed in this Court within the said period of time. We have put to Deputy Advocate General to caution that for any successive matters of this kind the costs will keep on going up.”</h4><h4>60. Also, it must be remembered that merely because sufficient cause has been made out in the facts of a given case, there is no right in the appellant to have delay condoned. This was felicitously put in <i><b>Ramlal v. Rewa Coalfields Ltd., (1962) 2 SCR 76</b></i>2 as follows:</h4><h4 style=\"margin-left: 25px;\">“It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent forthe exercise of the discretionary jurisdiction vested in the court by s. 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made under s. 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of ss. 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of s. 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under s. 5 without reference to s. 14.”</h4><div><br></div>', 'df10a7a4d29e5c8c38c350ad0a48a27e.PNG', '73d3becab11294e9f0a576a75c9dc161.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-19', 1, '', '', '2021-03-20 04:35:06', '2021-03-20 05:01:15'),
(605, 'OKJKmFiCwLLa0QaLZCX4sH5mG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Mental illness under Order 32 Rule 15 CPC includes physical defect like deafness. Such person must be given assistance of next friend in departmental enquiry. Karnataka High Court.  26 February 2021. ', '<h4>A.K.Siddalingappa vs Syndicate Bank. </h4><h4>Writ Petition 47769 of 2015 decided 26 February 2021.</h4><h4> Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/372789/1/WP47769-15-26-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/372789/1/WP47769-15-26-02-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:&nbsp;&nbsp;<b><i>“My eye is my ear ; my hand is my mouth, laments the petitioner, having disability of hearing to the tune of 98%, challenging the action of the Bank in imposing a penalty without affording a reasonable opportunity of defence.”</i></b>&nbsp;<br>2. Brief facts of the case leading to the filing of the petition as borne out from the pleadings are that: The petitioner joined the services of the respondent - Syndicate Bank (hereinafter referred to as ‘the Bank’ for short), a ‘State’ under Article 12 of the Constitution of India, as a Clerk on 25.10.1976.&nbsp; At the relevant point in time, the petitioner was working as Manager, a cadre in Middle Management Grade Scale II.<br>4. After about a year, a show cause notice was issued to the petitioner on 30.03.2012, seeking the petitioner to show cause as to why the proceedings should not be initiated against him for certain irregularities in the process of the bid contract in 10.03.2011. The petitioner gave a detailed reply to the show cause notice seeking time and further demanded that he be given some documents to prepare his defence to the show cause notice. The Bank not acceding to the said reply, issued a charge sheet against the petitioner on 01.06.2012 and initiated enquiry proceedings. The petitioner then informed the Bank that the Bank is aware of the fact that he has disability of hearing impairment to the tune of 98% and sought legal assistance to defend him in the enquiry. When the Bank did not accede to the request of the petitioner to engage a legal representative notwithstanding the disability of the petitioner, the petitioner approached this Court in writ petition No.44341/2012, which was dismissed by an order dated 21.10.2013.<br>5. After the dismissal of the writ petition, the petitioner requested the Bank to await the receipt of the certified copy of the order in the said writ petition, so that he could prefer an appeal. Not waiting for the receipt of the certified copy of the order in writ petition No.44341/2012, the matter was posted for cross-examination and on conclusion of the enquiry, the petitioner is found guilty of the allegations. The Disciplinary Authority passed an order dated 31.01.2014, imposing penalty of reverting the petitioner from the rank of MMGS- II to JMGS- I and fixing his pay at Rs.20,100/-. The petitioner filed an appeal before the Appellate Authority only to be dismissed by order dated 04.09.2014. Aggrieved by the orders of both the Disciplinary Authority and the Appellate Authority, preferred a review before the Reviewing Authority which was also dismissed by order dated 19.11.2014. It is these orders that are called in question by the petitioner in this writ&nbsp; petition.<br><b>10. ...Whether the petitioner had a reasonable opportunity of defence in the disciplinary proceedings conducted against him and whether denial of it would result in the final order of penalty becoming vitiated?</b><br>18. Therefore, the petitioner ought to have been given all opportunities to defend himself in the enquiry even if it would mean providing of defence assistance. An employee in the status of the petitioner cannot be seen to be condemned unheard as he was suffering a disability of hearing and in the impugned proceedings, is without a shadow of a doubt condemned unheard.<br>19. It is also apposite to view the case of the petitioner under the parameters of Order 32 Rule 15 of the Code of Civil Procedure, 1908, though the provision deals with mental infirmity, a Division Bench of the High Court of Kerala while elaborating this principle has held that mental infirmity in the context of Order 32 Rule 15, includes physical defects like deafness or dumbness while saying so, it was also held that the Court is bound to conduct enquiry as to whether the deaf or dumb person is capable of protecting own interest, in the case of <b><i>Raveendran Vs. Sobhana and Anr. reported in AIR 2008 Ker 145.</i></b> The relevant paragraphs are extracted for ready reference:</h4><h4 style=\"margin-left: 25px;\">“10. The decision under Order 32&nbsp; Rule 15 involves very serious consequences as it results in the rights of a party to conduct his own litigation being taken away, and a guardianship being thrust upon him. In such circumstances, the Court has not only the mandatory jurisdiction to enquire into the need for appointment of a next friend, but also the obligation to consider whether the person of unsound mind or of mental infirmity appearing before it is indeed capable of protecting his interests. If that person is not capable of protecting his interests on his own, the Court has an obligation to protect his interests by appointing a next friend and if such person is capable of protecting his own interests, the Court has equally an obligation to see that a next friend or guardian is not superimposed on him, thereby depriving him of his right&nbsp; to take his own decisions. In the decision reported in S.C. Karayalar v. V. Karayalar (1968 (2) MLJ 150): (AIR 1968 Mad 346), it was held that holding of an enquiry under Order 32 Rule 15….” is thus inescapable and consent cannot vest jurisdiction in Court to dislodge or divest the right of a litigant to conduct his suit, by superimposing a guardian or a next friend.”</h4><h4><b>11. Thus, the legal position is that mental infirmity in the context of Order 32 Rule 15 is not mental disorder, insanity or mental illness. Weakness of mind due to any reason, making a person incapable of protecting his interests, is sufficient to unfold the protective umbrella under Order 32 Rule 15. Such infirmity can also be caused by physical defects like deafness or dumbness, whereby a person is made incapable of communicating his wishes, views or thoughts to others who are not acquainted with him. If such a person is before the Court in a suit or proceedings either as plaintiff or defendant, the Court has a jurisdictional obligation to conduct an enquiry as to whether the person is capable of protecting his own interests. If in the judicial enquiry, if necessary and if required, conducted with the assistance of an expert, it is found that such person is incapable of protecting his interests in the suit or proceedings before the Court, the Court has an obligation to appoint a next friend for such person, and if the Court on the other hand finds that the person is otherwise capable of protecting his interests without a next friend, the Court shall remove the next friend if already available and permit the person, who is alleged to be of unsound mind or suffering from mental infirmity, to conduct the litigation himself. As held by the Supreme Court in Ram Chandra v. Man Singh (AIR 1968 SC 954), a decree passed against a minor without appointment of guardian is a nullity. The same principle would apply as far as a person suffering from unsoundness of mind or mental infirmity as referred to in Order 32 Rule 15 is concerned.</b><br>21. The submission of the learned counsel appearing for the Bank for the matter to be remanded back to the hands of the Disciplinary Authority is also unacceptable, for the reason that the misconduct is of the year 2011; ten years have passed by; the petitioner has retired on attaining the age of superannuation; above all, the disability of the petitioner will have to be taken note of. For the folly&nbsp; of the Bank in its actions contrary to law as indicated hereinabove, the petitioner cannot be at this stage of his life subjected to rigmarole of another set of disciplinary proceedings albeit its continuation in terms of the subject charge sheet.<br>22. For the aforesaid reasons, the action of the respondent - Bank cannot but be said to be in violation of principles of natural justice as in my considered view, the Bank has imposed penalty without permitting the petitioner to be defended in accordance with law. It is not a violation of the Bank’s rights, it is not a violation of a legal right, “it is violation of the petitioner\'s human right”.<br>23. For the praefatus reasons, the following:<br><b>ORDER</b><br>a. The writ petition is allowed.&nbsp;<br>b. The orders dated 31.01.2014, 04.09.2014 and 19.11.2014 passed by the Disciplinary Authority, Appellate Authority and Reviewing Authority are all quashed.<br>c. The petitioner is entitled to all consequential benefits that would flow from quashing of the aforesaid orders including the difference in salary and difference in pension.<br>d. The Bank shall recalculate the pension of the petitioner and pay him the difference in pension.<br>e. The petitioner shall also be entitled to any promotion that has been denied on account of pendency of aforesaid proceedings albeit notionally.&nbsp;<br>f. The aforesaid directions shall be complied by the Bank within two months from the date of receipt of a certified copy of this order.<br></h4>', '6505edefd4876026346ce89bac7d62b8.jpg', '43d931aec9c51d1e8780aa8ac6bc9eb3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-26', 1, '', '', '2021-03-21 15:39:16', '2021-03-21 15:41:33'),
(606, 'vtzUl9QR7DyuGfDIIh4Hqo4Hs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\"Deafness is a serious disability\". Karnataka High Court comes to the rescue of the employee with 98% disability who was denied legal assistance in departmental enquiry. 26 February 2021', '<h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 18px;\">A.K.Siddalingappa vs Syndicate Bank.</span></font></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 18px;\">Writ Petition 47769 of 2015 decided 26 February 2021.</span></font></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 18px;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/372789/1/WP47769-15-26-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/372789/1/WP47769-15-26-02-2021.pdf</a></span></font></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 18px;\"><b>Relevant paragraphs</b>: <b><i> “My eye is my ear ; my hand is my mouth, laments the petitioner, having disability of hearing to the tune of 98%, challenging the action of the Bank in imposing a penalty without affording a reasonable opportunity of defence.” </i></b></span></font></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 18px;\">2. Brief facts of the case leading to the filing of the petition as borne out from the pleadings are that: The petitioner joined the services of the respondent - Syndicate Bank (hereinafter referred to as ‘the Bank’ for short), a ‘State’ under Article 12 of the Constitution of India, as a Clerk on 25.10.1976.  At the relevant point in time, the petitioner was working as Manager, a cadre in Middle Management Grade Scale II.</span></font></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 18px;\">4. After about a year, a show cause notice was issued to the petitioner on 30.03.2012, seeking the petitioner to show cause as to why the proceedings should not be initiated against him for certain irregularities in the process of the bid contract in 10.03.2011. The petitioner gave a detailed reply to the show cause notice seeking time and further demanded that he be given some documents to prepare his defence to the show cause notice. The Bank not acceding to the said reply, issued a charge sheet against the petitioner on 01.06.2012 and initiated enquiry proceedings. The petitioner then informed the Bank that the Bank is aware of the fact that he has disability of hearing impairment to the tune of 98% and sought legal assistance to defend him in the enquiry. When the Bank did not accede to the request of the petitioner to engage a legal representative notwithstanding the disability of the petitioner, the petitioner approached this Court in writ petition No.44341/2012, which was dismissed by an order dated 21.10.2013.</span></font></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 18px;\">5. After the dismissal of the writ petition, the petitioner requested the Bank to await the receipt of the certified copy of the order in the said writ petition, so that he could prefer an appeal. Not waiting for the receipt of the certified copy of the order in writ petition No.44341/2012, the matter was posted for cross-examination and on conclusion of the enquiry, the petitioner is found guilty of the allegations. The Disciplinary Authority passed an order dated 31.01.2014, imposing penalty of reverting the petitioner from the rank of MMGS- II to JMGS- I and fixing his pay at Rs.20,100/-. The petitioner filed an appeal before the Appellate Authority only to be dismissed by order dated 04.09.2014. Aggrieved by the orders of both the Disciplinary Authority and the Appellate Authority, preferred a review before the Reviewing Authority which was also dismissed by order dated 19.11.2014. It is these orders that are called in question by the petitioner in this writ  petition.</span></font></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 18px;\">10. ...Whether the petitioner had a reasonable opportunity of defence in the disciplinary proceedings conducted against him and whether denial of it would result in the final order of penalty becoming vitiated?</span></font></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 18px;\">18. Therefore, the petitioner ought to have been given all opportunities to defend himself in the enquiry even if it would mean providing of defence assistance. An employee in the status of the petitioner cannot be seen to be condemned unheard as he was suffering a disability of hearing and in the impugned proceedings, is without a shadow of a doubt condemned unheard.</span></font></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 18px;\">19. It is also apposite to view the case of the petitioner under the parameters of Order 32 Rule 15 of the Code of Civil Procedure, 1908, though the provision deals with mental infirmity, a Division Bench of the High Court of Kerala while elaborating this principle has held that mental infirmity in the context of Order 32 Rule 15, includes physical defects like deafness or dumbness while saying so, it was also held that the Court is bound to conduct enquiry as to whether the deaf or dumb person is capable of protecting own interest, in the case of Raveendran Vs. Sobhana and Anr. reported in AIR 2008 Ker 145. The relevant paragraphs are extracted for ready reference:</span></font></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 18px;\">“10. The decision under Order 32  Rule 15 involves very serious consequences as it results in the rights of a party to conduct his own litigation being taken away, and a guardianship being thrust upon him. In such circumstances, the Court has not only the mandatory jurisdiction to enquire into the need for appointment of a next friend, but also the obligation to consider whether the person of unsound mind or of mental infirmity appearing before it is indeed capable of protecting his interests. If that person is not capable of protecting his interests on his own, the Court has an obligation to protect his interests by appointing a next friend and if such person is capable of protecting his own interests, the Court has equally an obligation to see that a next friend or guardian is not superimposed on him, thereby depriving him of his right  to take his own decisions. In the decision reported in S.C. Karayalar v. V. Karayalar (1968 (2) MLJ 150): (AIR 1968 Mad 346), it was held that holding of an enquiry under Order 32 Rule 15….” is thus inescapable and consent cannot vest jurisdiction in Court to dislodge or divest the right of a litigant to conduct his suit, by superimposing a guardian or a next friend.”</span></font></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 18px;\">11. Thus, the legal position is that mental infirmity in the context of Order 32 Rule 15 is not mental disorder, insanity or mental illness. Weakness of mind due to any reason, making a person incapable of protecting his interests, is sufficient to unfold the protective umbrella under Order 32 Rule 15. Such infirmity can also be caused by physical defects like deafness or dumbness, whereby a person is made incapable of communicating his wishes, views or thoughts to others who are not acquainted with him. If such a person is before the Court in a suit or proceedings either as plaintiff or defendant, the Court has a jurisdictional obligation to conduct an enquiry as to whether the person is capable of protecting his own interests. If in the judicial enquiry, if necessary and if required, conducted with the assistance of an expert, it is found that such person is incapable of protecting his interests in the suit or proceedings before the Court, the Court has an obligation to appoint a next friend for such person, and if the Court on the other hand finds that the person is otherwise capable of protecting his interests without a next friend, the Court shall remove the next friend if already available and permit the person, who is alleged to be of unsound mind or suffering from mental infirmity, to conduct the litigation himself. As held by the Supreme Court in Ram Chandra v. Man Singh (AIR 1968 SC 954), a decree passed against a minor without appointment of guardian is a nullity. The same principle would apply as far as a person suffering from unsoundness of mind or mental infirmity as referred to in Order 32 Rule 15 is concerned.</span></font></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 18px;\">21. The submission of the learned counsel appearing for the Bank for the matter to be remanded back to the hands of the Disciplinary Authority is also unacceptable, for the reason that the misconduct is of the year 2011; ten years have passed by; the petitioner has retired on attaining the age of superannuation; above all, the disability of the petitioner will have to be taken note of. For the folly  of the Bank in its actions contrary to law as indicated hereinabove, the petitioner cannot be at this stage of his life subjected to rigmarole of another set of disciplinary proceedings albeit its continuation in terms of the subject charge sheet.</span></font></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 18px;\">22. For the aforesaid reasons, the action of the respondent - Bank cannot but be said to be in violation of principles of natural justice as in my considered view, the Bank has imposed penalty without permitting the petitioner to be defended in accordance with law. It is not a violation of the Bank’s rights, it is not a violation of a legal right, “it is violation of the petitioner\'s human right”.</span></font></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 18px;\">23. For the praefatus reasons, the following:</span></font></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 18px;\">ORDER</span></font></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 18px;\">a. The writ petition is allowed. </span></font></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 18px;\">b. The orders dated 31.01.2014, 04.09.2014 and 19.11.2014 passed by the Disciplinary Authority, Appellate Authority and Reviewing Authority are all quashed.</span></font></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 18px;\">c. The petitioner is entitled to all consequential benefits that would flow from quashing of the aforesaid orders including the difference in salary and difference in pension.</span></font></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 18px;\">d. The Bank shall recalculate the pension of the petitioner and pay him the difference in pension.</span></font></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 18px;\">e. The petitioner shall also be entitled to any promotion that has been denied on account of pendency of aforesaid proceedings albeit notionally. </span></font></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><font color=\"#222222\" face=\"mainFontOP\"><span style=\"font-size: 18px;\">f. The aforesaid directions shall be complied by the Bank within two months from the date of receipt of a certified copy of this order.</span></font></h4>', 'c89f908b0850d25c731bae8eb40a4dab.jpg', '48bb5a2ab7e763f1b6dcd07d28a12720.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-26', 1, '', '', '2021-03-21 15:45:36', '2021-03-21 15:51:55');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(607, 'ddxN99UfbZH6ZAHoHMv0HW1vp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'The law of limitation binds everybody including the Government. Merely because the government is involved, a different yardstick for condonation of delay cannot be laid down.-Supreme Court reiterates. 19 March 2021', '<h4>Government of Maharashtra vs M/s. Borse Brothers Engineers & Contractors Pvt Ltd.<br>Civil Appeal 995 of 2021 decided on 19 March 2021.<br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/195/195_2021_33_1501_27050_Judgement_19-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/195/195_2021_33_1501_27050_Judgement_19-Mar-2021.pdf</a><br>54. The expression “sufficient cause” contained in section 5 of the Limitation Act is elastic enough to yield different results depending upon the object and context of a statute. Thus, in <b>Ajmer Kaur v. State of Punjab, (2004) 7 SCC 381</b>, this Court, in the context of section 11(5) of the Punjab Land Reforms Act, 1972, held as follows:</h4><h4 style=\"margin-left: 25px;\">“10. Permitting an application under Section 11(5) to be moved at any time would have disastrous consequences. The State Government in which the land vests on being declared as surplus, will not be able to utilise the same. The State Government cannot be made to wait indefinitely before putting the land to use. Where the land is utilised by the State Government, a consequence of the order passed subsequently could be of divesting it of the land. Taking the facts of the present case by way of an illustration, it would mean that the land which stood mutated in the State Government in 1982 and which was allotted by the State Government to third parties in 1983, would as a result of reopening the settled position, lead to third parties being asked to restore back the land to the State Government and the State Government in turn would have to be divested of the land. The land will in turn be restored to the landowner. This will be the result of the land being declared by the Collector as not surplus with the landowner. The effect of permitting such a situation will be that the land will remain in a situation of flux. There will be no finality. The very purpose of the legislation will be defeated. The allottee will not be able to utilise the land for fear of being divested in the event of deaths and births in the family of the landowners. Deaths and births are events which are bound to occur. Therefore, it is reasonable to read a time-limit in sub-section (5) of Section 11. The concept of reasonable time in the given facts would be most appropriate. An application must be moved within a reasonable time. The facts of the present case demonstrate that redetermination under sub-section (5) of Section 11 almost 5 years after the death of Kartar Kaur and more than 6 years after the order of the Collector declaring the land as surplus had become final, has resulted in grave injustice besides defeating the object of the legislation which was envisaged as a socially beneficial piece of legislation. Thus we hold that the application for redetermination filed by Daya Singh under sub-section (5) of Section 11 of the Act on 21-6-1985 was liable to be dismissed on the ground of inordinate delay and the Collector was wrong in reopening the issue declaring the land as not surplus in the hands of Daya Singh and Kartar Kaur.<br>11. The above reasoning is in consonance with the provision in sub-section (7) of Section 11 of the Act. Subsection (7) uses the words “where succession has opened after the surplus area or any part thereof has been determined by the Collector …”. The words “determined by the Collector” would mean that the order of the Collector has attained finality. The provisions regarding appeals, etc. contained in Sections 80-82 of the Punjab Tenancy Act, 1887, as made applicable to proceedings under the Punjab Land Reforms Act, 1972, show that the maximum period of limitation in case of appeal or review is ninety days. The appeal against the final order of the Collector dated 30-9- 1976 whereby 3.12 hectares of land had been declared as surplus was dismissed on 27-3-1979. The order was allowed to become final as it was not challenged any further. Thus the determination by the Collector became final on 27-3-1979. The same could not be reopened after a lapse of more than 6 years by order dated 23-7-1985. The subsequent proceedings before the Revenue Authorities did not lie. The order dated 23-7-1985 is non est. All the subsequent proceedings therefore fall through. The issue could not have been reopened.”</h4><h4>55. Nearer home, in <b>Brahampal v. National Insurance Company, 2020 SCC OnLine SC 1053,</b> this Court specifically referred to the difference between a delay in filing commercial claims under the Arbitration Act or the Commercial Courts Act and claims under the<br>Motor Vehicles Act, 1988, as follows:</h4><h4 style=\"margin-left: 25px;\">“16. This Court has firstly held that purpose of conferment of such power must be examined for the determination of the scope of such discretion conferred upon the court. [refer to Bhaiya Punjalal Bhagwandin v. Dave Bhagwatprasad Prabhuprasad, AIR 1963 SC 120; Shri Prakash Chand Agarwal v. Hindustan Steel Ltd., (1970) 2 SCC 806]. Our analysis of the purpose of the Act suggests that such discretionary power is conferred upon the Courts, to enforce the rights of the victims and their dependents. The legislature intended that Courts must have such power so as to ensure that substantive justice is not trumped by technicalities.<br>22. Therefore, the aforesaid provision being a beneficial legislation, must be given liberal interpretation to serve its object. Keeping in view the substantive rights of the parties, undue emphasis should not be given to technicalities. In such cases delay in filing and refiling cannot be viewed strictly, as compared to commercial claims under the Arbitration and Concilliation Act, 1996 or the Commercial Courts Act, 2015. In P. Radha Bai v. P. Ashok Kumar, (2019) 13 SCC 445, wherein this Court while interpreting Section 34 of the Arbitration Act, held that the right to object to an award itself is substantively bound with the limitation period prescribed therein and the same cannot merely a procedural prescription. In effect the Court held that a complete petition, has to be filed within the time prescribed under Section 34 of the Arbitration Act and ‘not thereafter’. The Court while coming to the aforesaid conclusion, reasoned as under:</h4><h4 style=\"margin-left: 50px;\">“36.1 First, the purpose of the Arbitration Act was to provide for a speedy dispute resolution process. The Statement of Objects and Reasons reveal that the legislative intent of enacting the Arbitration Act was to provide parties with an efficient alternative dispute resolution system which gives litigants an expedited resolution of disputes while reducing the burden on the courts. Article 34(3) reflects this intent when it defines the commencement and concluding period for challenging an award. This Court in PopularConstruction case [Union of India v. Popular Construction Co., (2001) 8 SCC 470] highlighted the importance of the fixed periods under the Arbitration Act. We may also add that the finality is a fundamental principle enshrined under the Arbitration Act and a definitive timelimit for challenging an award is necessary for ensuring finality. If Section 17 were to be applied, an award can be challenged even after 120 days. This would defeat the Arbitration Act\'s objective of speedy resolution of disputes. The finality of award would also be in a limbo as a party can challenge an award even after the 120 day period.”</h4><h4 style=\"margin-left: 25px;\">“23. Coming back to the Motor Vehicles Act, the legislative intent is to provide appropriate compensation for the<br>victims and to protect their substantive rights, in pursuit of the same, the interpretation should not be as strict as commercial claims as elucidated above.<br>24. Undoubtedly, the statute has granted the Courts with discretionary powers to condone the delay, however at the same time it also places an obligation upon the party to justify that he was prevented from abiding by the same due to the existence of “sufficient cause”. Although there exists no strait jacket formula for the Courts to condone delay, but the Courts must not only take into consideration the entire facts and circumstances of case but also the conduct of the parties. The concept of reasonableness dictates that, the Courts even while taking a liberal approach must weigh in the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence and lackadaisical attitude of the other, this Court shall refrain from exercising the aforesaid discretionary relief.<br>25. Taking into consideration the facts and circumstances of the present case, we are of the opinion that the delay of 45 days has been properly explained by the appellants, which was on account of illness of the wife of Appellant No. 1. It was not appropriate on the part of the High Court to dismiss the appeal merely on the ground of delay of short duration, particularly in matters involving death in motor accident claims. Moreover, in the present case no mala fide can be imputable against the appellants for filing the appeal after the expiry of ninety days. Therefore, we are of the opinion that the strict approach taken in the impugned order is hyper technical and cannot be sustained in the eyes of law.”</h4><h4>56. Given the object sought to be achieved under both the ArbitrationAct and the Commercial Courts Act, that is, the speedy resolution ofdisputes, the expression “sufficient cause” is not elastic enough to cover long delays beyond the period provided by the appeal provision itself. Besides, the expression “sufficient cause” is not itself a loose panacea for the ill of pressing negligent and stale claims. This Court, in Basawaraj v. Land Acquisition Officer, (2013) 14 SCC 81, has held:</h4><h4 style=\"margin-left: 25px;\">“9. Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See Manindra Land and Building Corpn. Ltd. v. BhutnathBanerjee [AIR 1964 SC 1336] , Mata Din v. A. Narayanan [(1969) 2 SCC 770 : AIR 1970 SC 1953] , Parimal v. Veena [(2011) 3 SCC 545 : (2011) 2 SCC (Civ) 1 : AIR 2011 SC<br>1150] and Maniben Devraj Shah v. Municipal Corpn. of Brihan Mumbai [(2012) 5 SCC 157 : (2012) 3 SCC (Civ) 24 : AIR 2012 SC 1629].)<br>10. In Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] this Court explained the difference between a “good cause” and a “sufficient cause” and observed that every “sufficient cause” is a good cause and vice versa. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof than that of “sufficient cause”.<br>11. The expression “sufficient cause” should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (Vide Madanlal v. Shyamlal [(2002) 1 SCC 535 : AIR 2002 SC 100] and Ram Nath Sao v. Gobardhan Sao [(2002) 3 SCC 195 : AIR 2002 SC 1201] .)<br>12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. “A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.” The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means “the law is hard but it is the law”, stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.<br>13. The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury\'s Laws of England, Vol. 28, p. 266: “605. Policy of the Limitation Acts.—The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence.” An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party\'s own inaction, negligence or laches. (See Popat and Kotecha Property v. SBI Staff Assn. [(2005) 7 SCC 510] , Rajender Singh v. Santa Singh<br>[(1973) 2 SCC 705 : AIR 1973 SC 2537] and Pundlik Jalam Patil v. Jalgaon Medium Project [(2008) 17 SCC 448 : (2009) 5 SCC (Civ) 907] .)<br>14. In P. Ramachandra Rao v. State of Karnataka [(2002) 4 SCC 578 : 2002 SCC (Cri) 830 : AIR 2002 SC 1856] this Court held that judicially engrafting principles of limitation amounts to legislating and would fly in the face of law laid down by the Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak [(1992) 1 SCC 225 : 1992 SCC (Cri) 93 : AIR 1992 SC 1701] .<br>15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.”</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">57. Likewise, merely because the government is involved, a different yardstick for condonation of delay cannot be laid dow</b>n. This was felicitously stated in Postmaster General v. Living Media India Ltd., (2012) 3 SCC 563 [“Postmaster General”], as follows:</h4><h4 style=\"margin-left: 25px;\">“27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court.<b style=\"background-color: rgb(255, 255, 0);\"> They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically<br>merely because the Government or a wing of the Government is a party before us.</b><br>28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. <b>The law of limitation undoubtedly binds everybody, including the Government.</b><br>29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments<b style=\"background-color: rgb(255, 255, 0);\">. The law shelters everyone under the same light and should not be swirled for the benefit of a few.”</b></h4><h4>58. The decision in Postmaster General (supra) has been followed in the following subsequent judgments of this Court:<br>i) State of Rajasthan v. Bal Kishan Mathur, (2014) 1 SCC 592 at paragraphs 8-8.2;<br>ii) State of U.P. v. Amar Nath Yadav, (2014) 2 SCC 422 at paragraphs 2-3;<br>iii) State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709 at paragraphs 11-13; and<br>iv) State of M.P. v. Bherulal, (2020) 10 SCC 654 at paragraphs 3-4.<br>59. In a recent judgment, namely, <b>State of M.P. v. ChaitramMaywade, (2020) 10 SCC 667,</b> this Court referred to Postmaster General (supra), and held as follows:</h4><h4 style=\"margin-left: 25px;\">“1. The State of Madhya Pradesh continues to do the same thing again and again and the conduct seems to be<br>incorrigible. The special leave petition has been filed after a delay of 588 days. We had an occasion to deal with such inordinately delayed filing of the appeal by the State of Madhya Pradesh in State of M.P. v. Bherulal [State of M.P. v. Bherulal, (2020) 10 SCC 654] in terms of our order dated 15-10-2020.<br>2. We have penned down a detailed order in that case and we see no purpose in repeating the same reasoning again except to record what are stated to be the facts on which the delay is sought to be condoned. On 5-1-2019, it is stated that the Government Advocate was approached in respect of the judgment delivered on 13-11-2018 [Chaitram Maywade v. State of M.P., 2018 SCC OnLine HP 1632] and the Law Department permitted filing of the SLP against the impugned order on 26-5-2020. Thus, the Law Department took almost about 17 months\' time to decide whether the SLP had to be filed or not. What greater certificate of incompetence would there be for the Legal Department!<br>3. We consider it appropriate to direct the Chief Secretary of the State of Madhya Pradesh to look into the aspect of revamping the Legal Department as it appears that the Department is unable to file appeals within any reasonable period of time much less within limitation. These kinds of excuses, as already recorded in the aforesaid order, are no more admissible in view of the judgment in Postmaster General v. Living Media (India) Ltd. [Postmaster General v. Living Media (India) Ltd., (2012) 3 SCC 563 : (2012) 2 SCC (Civ) 327 : (2012) 2 SCC (Cri) 580 : (2012) 1 SCC (L&S) 649]<br>4. We have also expressed our concern that these kinds of the cases are only “certificate cases” to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue. The object is to save the skin of officers who may be in default. We have also recorded the irony of the situation where no action is taken against the officers who sit on these files and do nothing.<br>5. Looking to the period of delay and the casual manner in which the application has been worded, the wastage of judicial time involved, we impose costs on the petitioner State of Rs 35,000 to be deposited with the Mediation and Conciliation Project Committee. The amount be deposited within four weeks. The amount be recovered from the officer(s) responsible for the delay in filing and sitting on the files and certificate of recovery of the said amount be also filed in this Court within the said period of time. We have put to Deputy Advocate General to caution that for any successive matters of this kind the costs will keep on going up.”</h4><h4>60. Also, it must be remembered that merely because sufficient cause has been made out in the facts of a given case, there is no right in the appellant to have delay condoned. This was felicitously put in <b>Ramlal v. Rewa Coalfields Ltd., (1962) 2 SCR 762 </b>as follows:</h4><h4 style=\"margin-left: 25px;\">“It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent forthe exercise of the discretionary jurisdiction vested in the court by s. 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made under s. 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of ss. 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of s. 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under s. 5 without reference to s. 14.”</h4><p><br></p>', '79e22e2c5c58bf720f160698827f5c9d.png', '99ad1234c729af36d0145629bdcb7a13.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-19', 1, '', '', '2021-03-21 16:18:28', '2021-03-21 16:21:39'),
(608, 'CdgFkNFijKU88Vtf8WSe7dzCd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Environment. Declaring forest as non-forest under the Karnataka Forest Act without the prior approval of the Central Government is illegal. Take action against erring officials - Karnataka High Court. 4 March 2021', '<h4>Gireesh Achar vs Government of India and others. </h4><h4>Writ Petition 43037 of 2019 decided on 4 March 2021. </h4><h4>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/372788/1/WP43037-19-04-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/372788/1/WP43037-19-04-03-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: CONSIDEREATION OF SUBMISSIONS - LEGAL POSITION<br>10. We have given careful consideration to the submissions. Section 28 of the Karnataka Forest Act 1963 reads thus:</h4><h4 style=\"margin-left: 25px;\">\"28. Power to declare forests no longer reserved forests.- (1) The State of Government may, by notification, direct that, from a date to be specified in such notification, any forest or any portion thereof constituted as reserved forest under this Act, shall cease to be a served forest:<br>Provided that no such notification shall be issued unless a resolution to that effect has been passed by both Houses of the State Legislature:<br>Provided further that no such resolution shall be necessary where the proposal relates to regularization of unauthorized occupation of any reserved forest or portion thereof, if such occupation was prior to the date of commencement of the Karnataka Forest (Amendment) Act, 1978.<br>(2) From the date so specified such forest or portion shall cease to be a reserved forest but the rights, if any, which have been extinguished therein shall not revive in consequence of such cessation.\"</h4><h4>11.<span style=\"white-space:pre\">	</span>We may also reproduce Section 2 of the said Act&nbsp; of 1980 which reads thus:</h4><h4 style=\"margin-left: 25px;\">\"2. Restriction on the de-reservation of forests or use of forest land for non-forest purpose- Nothwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing.-<br>(i) that any reserved forest (within the meaning of the expression \"reserved forest\" in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;<br>(ii) that any forest land or any portion thereof may be used for any non-forest purpose;<br>(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;<br>(iv) that nay forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for re-afforestation.\"&nbsp;</h4><h4 style=\"\">As is apparent, the said Act of 1963 is a State Legislation and the said Act of 1980 is a subsequent Central Legislation.&nbsp; In&nbsp; fact, Section 2 of the said Act of 1980 starts with a non-&nbsp; obstante clause and it overrides the state laws.&nbsp; It lays down&nbsp; that no State Government is empowered to make an order directing that any reserved forest or a portion thereof shall&nbsp; cease to be reserved without seeking prior approval of the Central Government. We must note here that Section 28 of the said Act of 1963 has conferred a power on the State Government of declaring that a reserved forest or a part thereof shall cease to be a reserved forest. In view of clause (i) of Section 2 of the said Act of 1980, the&nbsp; power under Section&nbsp; 28 of the said Act of 1963 cannot be exercised without prior approval of the Central Government.<br>CONSIDERATION OF FACTUAL ASPECTS<br>12.We must note here that the terms ‘forest’ or ‘reserved forest’ are not defined in the said Act of 1980. It is, therefore, necessary to make a reference to the decision of the Apex Court in the case of T.N. Godavarman 2 (2009)5 SCC 373. Paragraph 4 thereof reads thus:</h4><h4 style=\"margin-left: 25px;\">\"4. The Forest&nbsp; Conservation&nbsp; Act,&nbsp; 1980&nbsp; was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof.&nbsp; The&nbsp; word \"forest\" must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term \"forest land\", occurring in Section 2, will not only include \"forest\" as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the&nbsp; ownership.&nbsp; This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective&nbsp; of the ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this Court in Ambica Quarry Works v. State&nbsp; of&nbsp; Gujarat, Rural Litigation and Entitlement Kendra v. State of U.P. and recently in the order dated 29-11- 1996 (Supreme Court) Monitoring Committee v. Mussoorie Dehradun Development Authority). The earlier decision of this court in State of Bihar v. Banshi Ram Modi has therefore, to be understood in the light of these subsequent decisions. We consider it necessary to reiterate this settled position emerging from the decisions of this Court to dispel the doubt, if any, in the perception of any State Government or authority. This has become necessary also&nbsp; because&nbsp; of the stand taken on behalf of the State of Rajasthan, even at this late stage, relating to permissions granted for mining in such area which is clearly contrary to the decisions of this Court. It is reasonable&nbsp; to&nbsp; assume that any State Government which has failed to appreciate the correct position in law so far, will forthwith correct its stance and take the necessary remedial measures without any further delay.\"</h4><h4 style=\"\">14. The said decision of the Apex Court in the case of T.N.Godavarman (supra) has been rendered&nbsp; on&nbsp; 12th December 1996. Clause (i) of paragraph 5 of the said decision contains the following direction:</h4><h4 style=\"margin-left: 25px;\">\"5. (1) In view of the meaning of the word \"forest\" in the Act, it is obvious that prior approval of the Central Government is required for any non-forest activity within the area of any \"forest\". In accordance with Section 2 of the Act, all on-going activity within any forest in any State throughout the country, without the prior approval of the Central Government, must cease forthwith. It is, therefore, clear that the running of saw mills of any kind including veneer or plywood mills,&nbsp; and mining of any mineral are non-forest&nbsp; purposes and are, therefore, not permissible without prior approval of the&nbsp; Central&nbsp; Government.&nbsp; Accordingly, any such activity is prima facie violation of the provisions of the Forest Conservation Act,&nbsp; 1980.&nbsp; Every State Government must promptly ensure total cessation of all such activities forthwith.\"<br></h4><h4 style=\"\">Notwithstanding the said decision, which is binding on&nbsp; the&nbsp; State Government, without even applying for prior approval under Section 2 of the said Act of 1980, it undertook the exercise of issuing the impugned notification dated&nbsp; 23rd February 2017 of de-reservation of reserved forest in purported exercise of the powers under Section 28 of the said&nbsp; Act&nbsp; of 1963. Though the notification&nbsp; refers to Section 2 of the&nbsp; said&nbsp; Act of 1980, it ignores that prior approval of the Central Government was required as a condition precedent&nbsp; for&nbsp; exercise of the power under Section 28 of the said Act of 1963. The stand of the State Government is that the lands included in the impugned notification were earlier released but specific notifications were not published in official gazette. However, under Section 30 of the said Regulation, the power to release a State Forest could be exercised only by a notification in official gazette. Admittedly, that was not done.&nbsp; Hence, the&nbsp; status of&nbsp; the forest subject matter of the impugned notification as a reserved forest being a State Forest continued till the&nbsp; date of the impugned notification.<br>15. On a conjoint reading of Section 28 of the said Act of 1963 and Section 2 of the said Act of 1980, it is crystal clear that the power under Section 28 of the said Act of 1963 can be exercised only with the prior approval of the Central Government granted in accordance with Section 2 of the said Act of 1980. Thus, unless there is a prior approval&nbsp; of&nbsp; the Central Government to an order made under Section 28 of the said Act of 1963, the order under Section 28 of the said Act of 1963 cannot be lawful at all. In fact, any such order made in exercise of the power under Section 28 of the said Act of 1963 without seeking prior approval of the Central Government will not only be illegal but will also attract penal consequences&nbsp; under Section 3A and/or under Section 3B of the said Act of 1980, as the case may be. While issuing the impugned notification, not only that the State Government has completely glossed over the requirement of Section 2 of the said Act of 1980, but the State Government has violated the directions contained in the case of T.N. Godavarman (supra).&nbsp;<br>17. At this stage, it is necessary to remind the State Government of Article 48A of the Constitution of India which&nbsp; is&nbsp; a part of the Directive Principles of State Policy which enjoins the State to protect and improve the environment and to safeguard the forests and wild life. Under clause (g) of Article 51A of the Constitution, it is the fundamental duty of every citizen of India to protect and improve the forests. The officials&nbsp; of the State Government who did the exercise of initiating and completing the process under Section 28 of the said&nbsp; Act&nbsp; of 1963 were also duty bound to protect the forest. The minimum which was expected of them was that they will not indulge in de-reservation of forest in complete violation of Section 2 of the said Act of 1980.<br>18. Apart from all this, there is a doctrine of Public Trust. The Apex Court has repeatedly held that the doctrine of Public Trust is applicable to India. The doctrine of Public Trust requires the State to ensure that forests are protected.<br>19.<span style=\"white-space:pre\">	</span>Hence, the petition must succeed and we pass the following order:<br><b style=\"background-color: rgb(255, 255, 0);\">ORDER<br>(i) The impugned order/notification dated 23rd February 2017 at Annexure-N is hereby quashed and set aside;<br>(ii) We hold that the power under Section 28 of the said Act of 1963 cannot be exercised without obtaining the prior approval of the Central Government in accordance with Section 2 of the said Act of 1963;<br>(iii) We also hold that even if the State Government purports to issue a notification under Section 28 of the said Act of 1963 without obtaining the prior approval of the Central Government in accordance with Section 2 of the said Act of 1980, such a notification shall be per se illegal;<br>(iv) If any of the officers are responsible for allowing non- forest activities on the lands subject matter of Annexure-N, needless to add that criminal law shall be set in motion by the State Government against the concerned officers by taking recourse to Section 3 (A) read with Section 3(B) of the said Act of 1980;<br>(v) The petition is allowed on the above terms with no order as to costs.<br></b><br><br><br></h4><div><br></div>', 'ad833e2533bc1b103dc1c4426e940ddc.PNG', '43c52ab1de06f6da715da07de414341f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-04', 1, '', '', '2021-03-21 17:24:37', '2021-03-21 17:26:12'),
(609, 'uDq69hFhR7VxsJj7mwqXGq7YF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Section 138. There is NO requirement of sending notice under Certificate of Posting once the notice is sent by Registered Post Acknowledgment Due. Karnataka High Court. 1 March 2021', '<h4>M. Nagappa vs Mohamad Aslam Savanur. </h4><h4>Criminal Appeal 838 of 2011 decided on 1 March 2021.</h4><h4> Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/372665/1/CRLA838-11-01-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/372665/1/CRLA838-11-01-03-2021.pdf </a><br></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:This appeal is directed against the judgment and order of acquittal dated 05.07.2011 passed in C.C.No.1575/2009, whereby the respondent-accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.</h4><h4>3. The trial Court, on analysis of the evidence adduced by the appellant-complainant, arrived at a factual finding that the respondent-accused had duly issued cheques in question for a sum of Rs.50,000/- each in favour of the appellant-complainant in discharge of a debt or liability. The cheques, were presented to the Bank for payment within the time of validity, but the cheques were returned unpaid for want of funds in the account of the respondent- accused in the bank on which the cheques were drawn.<br><b style=\"background-color: rgb(255, 255, 0);\">However, the trial Court was of the opinion that appellant- complainant ought to have issued a notice under Certificate of Posting (COP) in addition to the notice sending through Registered Post with Acknowledgment Due (RPAD)</b>. With the said observation, the trial Court has come to the conclusion that the contention of the appellant-complainant that he intimated the respondent-accused regarding dishonour of the cheque leads to suspicion as the P.W.1 has also admitted in the cross-examination to a suggestion made by the respondent-accused that the appellant-complainant has not sent the legal notice to his correct address. Further it is observed that the appellant-complainant has not sent the legal notice to the respondent-accused under certificate of posting, there is no presumption of proper service of notice to the respondent-accused and has further held that the appellant-complainant has failed to prove that he had intimated the respondent-accused regarding dishonour of cheques and nothing on record that respondent- accused has received intimation. With these observations, the complaint came to be dismissed. Being aggrieved by the said order of acquittal, the appellant-complainant is before this Court.<br>8. In the present appeal, the legal principles regarding presumption to be drawn regarding service of legal notice to the respondent-accused is under consideration. Thus, it is necessary to ascertain whether there was proper service of notice as per the procedure prescribed under Section 94 of Negotiable Instruments Act and the provisions of General Clauses Act.<br>9. Section 94 of Negotiable Instruments Act, 1881, reads as under:</h4><h4 style=\"margin-left: 25px;\">“94. Mode in which notice may be given.—Notice of dishonour may be given to a duly authorized agent of the person to whom it is required to be given, or, where he has died, to his legal representative, or, where he has been declared an insolvent, to his assignee; may be oral or written; may, if written, be sent by post; and may be in any form; but it must inform the party to whom it is given either in express terms or by reasonable intendment that the instrument has been dishonoured, and in what way, and that he will be held liable thereon; and it must be given within a reasonable time after dishonour, at the place of business or (in case such party has no place of business) at the residence of the party for whom it is intended. If the notice is duly directed and sent by post and miscarries, such miscarriage does not render the notice invalid.” </h4><h4 style=\"\">10. Section 17 of General Clauses Act, 1897, reads as under:</h4><h4 style=\"margin-left: 25px;\">17. Substitution of functionaries.(1) In any 31 [Central Act] or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of indicating the application of a law to every person or number of persons for the time being executing the functions of an office, to mention the official title of the officer at present executing the functions, or that of the officer by whom the functions are commonly executed.<br>(2) This section applies also to all [Central Acts] made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887.</h4><h4 style=\"\">11. In the decision reported in 2014 STPL 9253 SC [2014 (AIR (SCW) 4321] in the case of Ajeet Seeds Ltd. vs. K.Gopala Krishnaiah, the Hon’ble Apex Court has held as under:</h4><h4 style=\"margin-left: 25px;\">“14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to furtheraver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement ‘refused’ or ‘not available in the house’ or ‘house locked’ or ‘shop closed’ or ‘addressee not in station’, due service has to be presumed. [Vide Jagdish Singh Vs. Natthu Singh (1992) 1 SCC 647; State of M.P. Vs. Hiralal & Ors. (1996) 7 SCC 523 and V.Raja Kumari Vs. P.Subbarama Naidu & Anr. (2004) 8 SCC 74] It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved.</h4><h4 style=\"margin-left: 50px;\">10. It is thus clear that Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the GC Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business.”</h4><h4 style=\"\"><b style=\"background-color: rgb(255, 255, 0);\">14. When a sender has dispatched the notice through registered post with correct address written on it, Section 27 of General Clauses Act could be profitably imported and in such a situation service of notice deemed to have been effected on the sender unless he proves that it was really not served and he was not responsible for such non-service. In the present case, there is no rebuttal evidence to show that the complainant has deliberately and intentionally sent the legal notice to the wrong address and the accused was not working at the place and address shown in the registered envelope.</b><br>15. The finding recorded by the Court below regarding service of notice through registered post holding that there is no proper service of notice is contrary to Section 138 of N.I.Act. In view of the ratio laid down in the aforesaid decisions, there is proper service of notice and <b style=\"background-color: rgb(255, 255, 0);\">there was no requirement to serve the notice under certificate of posting.</b> The respondent-accused has failed to rebut the presumption by placing cogent and convincing evidence. Therefore, this Court is of the view that the findings recorded by the Court below cannot be sustained in law.<br>16.<span style=\"white-space:pre\">	</span>For the foregoing reasons, this Court proceed to pass the following:<br><b style=\"background-color: rgb(255, 255, 0);\">ORDER:</b><br>i.Appeal is allowed.<br>ii.The impugned judgment and order of acquittal dated 05.07.2011 passed in C.C.No.1575/2009 on the file of Prl.Senior Civil Judge & CJM, Davanagere, is set-aside.<br>iii.The respondent-accused is convicted for the offence punishable under Section 138 of N.I.Act. <br>iv. The respondent-accused is directed to pay fine amount of Rs.1,60,000/- (Rupees One Lakh Sixty Thousand only). Out of the fine amount, a sum of Rs.10,000/- shall be remitted to State by way of fine and the remaining fine amount of Rs.1,50,000/- shall be paid to the appellant- complainant by way of compensation along with interest at the rate of 6% p.a. from the date of complaint till realization of the cheque amount.<br>v. The amount shall be deposited within eight weeks from the date of this order. In case of default,  the appellant shall initiate proceedings.<br><br></h4>', '81a1dd20176d947f67173149a85822ca.jpg', '60c3473f5d6d818d0ea2896ebf13422b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-01', 1, '', '', '2021-03-21 18:01:52', '2021-03-21 18:03:11');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(610, 'OAEKztRfhK7ZhoijVje4Lduvh', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act. Application under Section 9 is maintainable even after conclusion of arbitral proceedings and during Section 34 proceedings only in so far as the claim granted by the arbitrator. Karnataka High Court.  22 March 2021', '<h4>Padma Mahadev and others vs M/s. Sierra Constructions Private Limited. </h4><h4>ComAp 2 of 2021 decided on 22 March 2021.</h4><h4>Chief Justice Abhay S Oka and Justice Sachin Shankar Magdum</h4><h4>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2009/24488/24488_2009_39_1501_27084_Judgement_22-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2009/24488/24488_2009_39_1501_27084_Judgement_22-Mar-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: The appellants who are the owners of the&nbsp; schedule&nbsp; property are the respondents before the learned Judge of the Commercial Court, Bengaluru Urban District in Com.A.A. No.45/2020. The impugned order dated 19th November 2020 has been passed on an application made by the&nbsp; respondent- developer before the Commercial Court under Rules 1 and 2, Order XXXIX of the Code of Civil Procedure, 1908 (for short “the said Code”). The application was made in an application filed under section 9 of the Arbitration and Conciliation Act, 1996 (for short, ‘the Arbitration Act’).</h4><h4><b>3. </b>On the basis of a petition filed by the respondent under section 11 of the Arbitration Act, by the order dated 25th July 2018 passed by this Court in CMP No.208/2017, the dispute was referred to sole Arbitrator for adjudication which came to be registered as AC. No.131/2018. The claim made by the&nbsp; respondent was for passing of an award against the appellants directing them to convey 50% share of the respondent in the undivided area along with possession of 50% share in the super built up area and covered/open car parking area in&nbsp; the&nbsp; commercial complex constructed on the schedule property and to direct the appellants to pay a sum of Rs.21 crores towards cost of construction, damages for unlawful termination of the JDA and compensatory damages. The present appellants made a counter claim in a sum of Rs.32,20,000/-.<br><b>4. </b>An Award was made by the sole Arbitrator on 5th July 2019 in A.C.No.131/2018 holding that the notice of termination of JDA dated 14th December, 2017 issued by the appellants was valid&nbsp; and legal and, therefore, the JDA entered into by and&nbsp; between&nbsp; the appellants and the respondent stood validly terminated from the date of service of the notice. The learned sole Arbitrator has proceeded to dismiss the claim made by the respondent- developer and the counter claim made by the appellants-owner.<br>5. Being aggrieved by the Award dated 5th July 2019 made by the sole Arbitrator in AC.No.131/2018, on 18th September 2019, the respondent has preferred Arbitration suit in Com.A.S. No. 144/2019 in the form of an application under Section 34 of the Arbitration Act which is pending adjudication before the Commercial Court. On 22nd June 2020, the respondent filed an application under Section 9 of the Arbitration Act before the Commercial Court at Bengaluru which has been numbered as Comm. A.A. No.45/2020. A prayer for temporary injunction was made in the said application by filing interlocutory application&nbsp; being IA No.I under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure (for short, ‘the&nbsp; said Code’).&nbsp; The prayer in the&nbsp; &nbsp;said application was for grant of an order of temporary injunction restraining the appellants from carrying out any&nbsp; further construction activities and from making any structural alterations&nbsp; to the building constructed by the respondent till the disposal of&nbsp; the said application filed by the respondent under Section 34&nbsp; of the Arbitration Act. An additional affidavit in support of the said application (IA-I) was filed by the respondent on&nbsp; 20th&nbsp; October 2020 by placing on record the subsequent event of a Joint Development Agreement executed by the appellants in favour of one Sri Dinesh Pullipati in respect of the schedule property. The said Joint Development Agreement is referred as the&nbsp; second&nbsp; JDA.<br><b>6. </b>By the Judgment and order dated 19th November 2020 which is impugned in this appeal, the interlocutory application IA No. I filed by the respondent under Order XXXIX,&nbsp; Rules 1 and 2&nbsp; of the Code in the petition filed under Section 9 of the Arbitration Act has been allowed by restraining the appellants from carrying out construction activities on the schedule property and from making modification or alteration to the construction already&nbsp; carried out on the schedule property, till disposal of&nbsp; the&nbsp; application filed under Section 34 of the Arbitration Act. For challenging the said order dated 19th November,&nbsp; 2020,&nbsp; the present appeal is preferred by the appellants, who are the owners of the schedule property.<br><span style=\"background-color: rgb(255, 255, 0);\"><b>MAINTAINABILITY OF APPLICATION UNDER SECTION 9:</b></span><br><b>16. </b>Now we come to the issue of maintainability of the application filed under Section 9 of the Arbitration Act by an unsuccessful claimant pending the application under Section 34 of the Arbitration Act for challenging the Arbitral Award. On this aspect, it will be necessary to make a reference to the decision of the Apex Court in the case of Mc Dermott International Inc. v. Burn Standard Co. Ltd., 2006 (11) SCC 181. In paragraphs 51 to 54, the Apex Court discussed the issue relating to the scope of the powers of the Court while dealing with the application filed under Section 34 of the Arbitration Act. In paragraph 52 of the said decision, the Apex Court held thus:</h4><h4 style=\"margin-left: 25px;\">“52. The 1996 Act makes provision for the supervisory role of courts, for the review of the&nbsp; arbitral award only to ensure fairness. Intervention of the court is envisaged in few circumstances&nbsp; only, like, in case of fraud or bias by the arbitrators, violation of natural justice, etc. The court cannot correct errors of the arbitrators. It can only quash the award leaving the parties free to begin the arbitration again if it is desired. So, the scheme of the provision aims at keeping the supervisory role of the court at minimum level and this can be justified as parties to the agreement make a conscious decision to exclude the court\'s jurisdiction by opting for arbitration&nbsp; as&nbsp; they prefer the expediency and finality offered by it”.</h4><h4>Hence, the Apex Court, in categorical terms, held that while disposing of an application filed under Section 34 of&nbsp; the Arbitration Act, the Court cannot correct the errors of the Arbitrators and at the highest, it can only quash the&nbsp; Arbitral&nbsp; Award and thereby leaving the parties free to&nbsp; begin&nbsp; the Arbitration again, if it is desired.<br><b>17.</b> On this aspect, it is necessary to refer to another decision&nbsp; of the Apex Court of a bench&nbsp; consisting of three Hon’ble&nbsp; Judges in the case of Kinnari Mullick and another –vs- Ghanshyam Das Damani (2018) 11 SCC 328. In the first paragraph of the said decision,&nbsp; the Apex Court has noted the question for consideration before it, which reads thus:</h4><h4 style=\"margin-left: 25px;\">“This appeal raises a short question as to whether Section 34(4) of the Arbitration and Conciliation Act, 1996 (for short “the Act”) empowers the Court to relegate the parties before the Arbitral Tribunal after having set aside the arbitral award in question and more so suo motu in the absence of any application made in that behalf by the parties to the arbitration proceedings?”.</h4><h4>This was a case before the Apex Court wherein the Award made by the Arbitrator was set aside on an application filed under Section 34 of the Arbitration Act on the ground that the Award impugned therein did not disclose the reasons in support of the same. By setting aside the Award, the&nbsp; parties&nbsp; were&nbsp; left&nbsp; to pursue their remedy in accordance&nbsp; with law.&nbsp; The order passed&nbsp; by the learned Single Judge was challenged in appeal before the Division Bench of the Calcutta High Court. The Division Bench, while dismissing the appeal and affirming the order passed by the learned Single Judge, by placing reliance on the provisions of sub-section (4) of Section 34 directed that the Award be send&nbsp; back to the Arbitrator with a direction to support his Award by assigning reasons. Therefore, the issue before the Apex Court&nbsp; &nbsp;in the case of Kinnari Mullick (supra) was whether an order of remand can be made to the Arbitral Tribunal, while deciding the application filed under Section 34 of the Arbitration Act.<br><b>18. </b>After referring to the earlier decisions including the decision in the case of McDermott International (supra), the Apex Court, in paragraphs 14 to 16 of its decision in the said case of Kinnari Mullick (supra) held thus:</h4><h4 style=\"margin-left: 25px;\">“14. In this backdrop, the question&nbsp; which&nbsp; arises is: whether the highlighted portion in the operative part of the impugned judgment of the Division Bench can be sustained in law? For that, we may advert to Section 34(4) of the Act which is the repository of power invested in the Court. The same reads thus:</h4><h4 style=\"margin-left: 50px;\">“34. (4) On receipt of an application under sub- section (1), the court may, where it&nbsp; is&nbsp; appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the Arbitral Tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of Arbitral Tribunal will eliminate the grounds for setting aside the arbitral award.”</h4><h4 style=\"margin-left: 25px;\">15. On a bare reading of this provision, it is amply clear that the Court can defer the hearing of the application filed under Section 34 for setting&nbsp; aside the award on a written request made&nbsp; by a&nbsp; party to the arbitration proceedings to facilitate the Arbitral Tribunal by resuming the arbitral proceedings or to take such other action as in the opinion of&nbsp; the&nbsp; Arbitral Tribunal will eliminate the grounds for setting aside the arbitral award. The quintessence for exercising power under this provision is that the arbitral award has not been set aside. Further, the challenge to the said award has been set up under Section 34 about the deficiencies in the&nbsp; arbitral award which may be curable by allowing the Arbitral Tribunal to take such measures which can eliminate the grounds for setting aside the arbitral award. No power has been invested by Parliament in the Court to remand the matter to the Arbitral Tribunal except&nbsp; to adjourn the proceedings for the limited purpose mentioned in sub-section (4) of Section&nbsp; 34.&nbsp; This legal position has been expounded in McDermott International Inc. [McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181]&nbsp; In para 8 of the said decision, the Court observed thus: (Bhaskar Industrial case [Bhaskar Industrial Development Ltd. v. South Western Railway, 2016 SCC OnLine Kar 8330] , SCC OnLine Kar)</h4><h4 style=\"margin-left: 50px;\">“8. … Parliament has not conferred any power of remand to the Court to remit the matter to the Arbitral Tribunal except to adjourn the proceedings as provided under sub-section (4) of Section 34 of the Act. The object of sub-section&nbsp; (4) of Section 34 of&nbsp; the Act is to give an opportunity to the Arbitral Tribunal to resume the arbitral proceedings or to enable it to take such other action which&nbsp; will eliminate the grounds for setting aside the arbitral award.”</h4><h4 style=\"margin-left: 25px;\">16. In any case, the limited discretion available to the Court under Section 34(4) can be exercised only upon a written application made in that behalf by a party to the arbitration proceedings. It is crystal clear that the Court cannot exercise this limited power of deferring the proceedings before it suo motu. Moreover, before formally setting aside the award, if the party to the arbitration proceedings fails&nbsp; to request the Court to defer the proceedings pending before it, then it is not open to the party to move an application under Section 34(4) of the Act. For, consequent to disposal of the main proceedings under Section 34 of the Act by the Court, it would become functus officio. In other words, the limited remedy available under Section 34(4) is required to be invoked by the party to the arbitral proceedings before the award is set aside by the Court”.<br></h4><h4 style=\"\"><b>19.</b>Hence, the larger Bench of the Apex Court has approved&nbsp; the view taken in&nbsp; the case of Mc Dermott International (supra)&nbsp; by holding that Parliament has not conferred any power on the Court to remit the matter to the Arbitral Tribunal.&nbsp; However, there&nbsp; is a power to adjourn the proceedings of the application&nbsp; filed under Section 34 for the limited purposes mentioned in sub- section (4) of Section 34 of the Act. The object of sub-section (4)&nbsp; of Section 34 of the Act is to give an opportunity to the Arbitral Tribunal to resume the arbitral proceedings to enable it to take such action which will eliminate the grounds for setting aside the Arbitral Award.<br><b>20. </b>At this stage, we must make a useful reference to a&nbsp; decision of a Division Bench of this Court in the case of Bhaskar Industrial Development Limited –vs- South Western Railway, Hubballi 2016 SCC OnLine Kar 8330&nbsp;wherein the issue before the Division Bench of this Court was whether a Court while dealing with an application- petition filed under Section 34 of the Arbitration Act has a power&nbsp; &nbsp;to remit the matter to the Arbitral Tribunal after setting aside the Arbitral Award. After relying upon the decision of the Apex Court in the case of Mc Dermott International (supra), in paragraph 8, the Division Bench of this Court held thus:</h4><h4 style=\"margin-left: 25px;\">“8. A plain reading of Section 34 of the Act extracted above will show that Parliament has not conferred any power of remand to the Court to remit the matter to the Arbitral Tribunal except to adjourn the proceedings as provided under&nbsp; sub-Section&nbsp; (4) of Section 34 of the Act. The object of sub-Section (4) of Section 34 is to give an opportunity to the Arbitral Tribunal to resume&nbsp; the&nbsp; arbitral proceedings or to enable it to take such other action which will eliminate the grounds for setting aside the arbitral award. This provision (sub-Section (4)) cannot be invoked, once the arbitral Award is set-aside”.</h4><h4 style=\"\"><b>21</b>.In paragraph-52 of the decision of the Apex Court in the case of Mc Dermott International (supra), the Apex Court specifically held that while deciding the application under Section 34, the Court cannot correct the errors of the Arbitrator and it can only quash the award leaving the parties free to begin the Arbitration again. If the errors are such that the Arbitral Award is rendered illegal, there is no option available to the Court&nbsp; to&nbsp; correct such errors. The only option&nbsp; available&nbsp; to&nbsp; the Court in&nbsp; such case is to set aside the Award without correcting the said error. The reason is that after the parties&nbsp; have&nbsp; consciously chosen to exclude the jurisdictional Court, the parties&nbsp; should&nbsp; again go back to the Arbitration after the Award is set aside.</h4><h4 style=\"\"><b>22</b>. Incorporation of sub-section (4) of Section 34 of the Arbitration Act is very significant. It empowers the Court on an application filed by the parties to give the Arbitral Tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of the Arbitral Tribunal will eliminate the grounds for setting aside the arbitral award. If the intention of the Legislature was to confer a power on the Court while dealing with an application filed under Section 34 of the Arbitration Act to correct the errors or mistakes committed by the Arbitral Tribunal, there was no reason for the Legislature to incorporate sub-section (4) of Section 34 of the Arbitration Act. If it is held that the Court dealing with an application under Section 34 has a power to&nbsp; modify the Award or to correct errors of the Arbitrator&nbsp; and&nbsp; to make a modified award, the provision of sub-section (4)&nbsp; of&nbsp; Section 34 will become redundant, as it will not be necessary for the Court to exercise the power under sub-section (4) of Section 34, as the Court can itself correct the errors. In paragraph 52 of the decision of the Apex Court rendered in the case of&nbsp; Mc Dermott International (supra) the word “only” has been used while observing that the Court cannot correct errors of the arbitrators and it can “only” quash the award leaving the parties free to begin the arbitration again if it is desired.<br><b>23</b>. At this stage, it is necessary to make a reference to Section 43 of the Arbitration Act.....Sub-Section (4) of Section 43 applies to a situation when&nbsp; the Court exercising the jurisdiction under Section 34 of&nbsp; the&nbsp; Arbitration Act sets aside an Arbitral Award. Sub-Section (4) provides for exclusion of the period spent in Arbitration and the application under Section 34.&nbsp; This enables the successful party&nbsp; &nbsp;in Section 34 application to again take recourse&nbsp; to&nbsp; Arbitration after the Award is set aside by the Court. If the intention of the Legislature was to confer a power on the Court dealing with an application under Section 34 of the Arbitration Act to modify the Award or to make a fresh Award, there was no reason to make a provision in the form of sub-section (4) of Section 43. This supports the conclusion that the Court dealing with application under Section 34 cannot modify or substitute Arbitral Awards.<br><b style=\"background-color: rgb(255, 255, 0);\">24. Therefore, in a case, where the Court dealing with an application filed under Section 34 of the Arbitration Act finds that the claim of the claimant was erroneously rejected or the Arbitral Tribunal has committed an illegality by rejecting the claim, the Court can set aside the award so that the claimant can again go back to the Arbitration. In such a case, by correcting the error made by the Arbitrator, the Court cannot make an&nbsp; Award in&nbsp; favour of the&nbsp; claimant after setting aside award.&nbsp;</b> If, after perusal&nbsp; of the award, a view is taken by the Court that the rejection of the claim made by the claimant by the Arbitral Tribunal is illegal, in view of the law laid down by the Apex Court in paragraph-52&nbsp; of&nbsp; Mc Dermott International (supra), the Court is required to set aside the arbitral award enabling the parties to begin the&nbsp; arbitration again. As pointed out earlier, there are two parts in the conclusions recorded by the Apex Court in paragraph-52.&nbsp; The&nbsp; first part is that the Court cannot correct the errors committed by the Arbitrator and the second part is that the Court can “only” quash the Award.<span style=\"background-color: rgb(255, 255, 0);\"> <b>Therefore, if an Award rejecting the claim of the claimant who has filed an application under Section 34&nbsp; is found to be illegal, a fresh award cannot be made by the Court in favour of the claimant while allowing the application filed under Section 34. The only option in such a case is to set aside the award and leave the parties to resume the Arbitration once again.</b></span><br><b>28.</b>The scope of the revisional jurisdiction conferred on&nbsp; the High Court under Section 115 of the said Code is completely different from the limited supervisory jurisdiction conferred on the Court under Section 34 of the Arbitration Act. We may note here that in the case of Steel Authority of India Limited vs Gupta Brother Steel Tubes Limited (2009) 10 SCC 63,the Apex Court held that while dealing with an application under Section 34&nbsp; of&nbsp; the&nbsp; Arbitration Act, it is not permissible to a Court to examine the correctness of the findings of the Arbitrator, as if it was sitting in appeal over his findings. The powers of the High Court under Section 115 of the Code are much wider. High Court can interfere with the decision even on the ground of material irregularity as is clear from clause (c) of sub-section (1) of Section 115 of the&nbsp; said Code.&nbsp; As&nbsp; held&nbsp; by the Apex Court in the case of Masjid Kacha Tank, Nahan –&nbsp; vs- Tuffail Mohammed AIR 1991 SC 455, the High Court while exercising its power under Section 115 of the said Code can interfere with the finding of fact recorded by the Court sub-ordinate to it on the ground that it is perverse. The High Court, while exercising the jurisdiction under Section 115 of the said Code can interfere with the findings of the Court on the ground of non-consideration of evidence.</h4><h4 style=\"\"><b style=\"background-color: rgb(255, 255, 0);\">32.&nbsp;Thus, on its plain reading, an application under Section 9 can be made at three stages. (i) Before commencement of Arbitration; (ii) during the pending of arbitral proceedings and (iii) after making an Award, but before it is enforced. Hence, after conclusion of the arbitral proceedings, recourse can be taken to Section 9 of the Arbitration Act before&nbsp; the&nbsp; Award&nbsp; is&nbsp; enforced. The third contingency will arise only if there is an award made which is capable of being enforced. If, by the award, the claim is rejected, the unsuccessful party cannot take recourse to Section 9 of the Arbitration Act, pending the decision on Section 34 application.</b><br>35.In the facts of the present case, the entire claim made by&nbsp; the respondent has been rejected by the Arbitral Tribunal. Therefore, even if the respondent succeeds in&nbsp; the&nbsp; application&nbsp; filed under Section 34 of the Arbitration Act, at the highest, the Arbitral Award can be set aside, leaving the parties to begin fresh arbitration.&nbsp;<span style=\"background-color: rgb(255, 255, 0);\"> <b>Therefore, this Court is of the considered view that&nbsp; the order of interim relief granted under the impugned order by allowing the application filed under Rules 1 and 2 of Order XXXIX of the said Code is illegal as it is not in aid of the final relief which can be granted in the pending application filed under Section 34&nbsp; &nbsp;of the Arbitration Act.&nbsp;</b></span><br><span style=\"background-color: rgb(255, 255, 0);\">O R D E R</span><br>i)The appeal is allowed;<br>ii) That part of the impugned order dated 19th November 2020 passed by the LXXXIII Additional City Civil and Sessions Judge, Bengaluru city (CCH-84) by which IA No.I&nbsp; is allowed, is hereby set aside and the application being IA&nbsp; No. I filed in Com.A.A. No.45/2020 stands dismissed;<br>iii) The direction regarding expeditious hearing of Com. A.S. No. 144/2019 is hereby maintained;<br><br><br><br><br></h4><div><br></div>', '0e1697794d2c3c98d2d99ec5825e762b.PNG', '2e925ba918d81c113b8121bbd5153358.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-22', 1, '', '', '2021-03-22 23:13:43', '2021-03-22 23:46:06'),
(611, 'qUFbIxtepWCxHWeCMg61OZwwx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act. Award rejecting claim if found to be illegal fresh award cannot be made by Court under Section 34. Only option is to set aside award and leave parties to resume Arbitration once again. Karnataka High Court. 22 March 2021', '<h4>Padma Mahadev and others vs M/s. Sierra Constructions Private Limited.<br>ComAp 2 of 2021 decided on 22 March 2021.<br>Chief Justice Abhay S Oka and Justice Sachin Shankar Magdum<br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2009/24488/24488_2009_39_1501_27084_Judgement_22-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2009/24488/24488_2009_39_1501_27084_Judgement_22-Mar-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: The appellants who are the owners of the  schedule  property are the respondents before the learned Judge of the Commercial Court, Bengaluru Urban District in Com.A.A. No.45/2020. The impugned order dated 19th November 2020 has been passed on an application made by the  respondent- developer before the Commercial Court under Rules 1 and 2, Order XXXIX of the Code of Civil Procedure, 1908 (for short “the said Code”). The application was made in an application filed under section 9 of the Arbitration and Conciliation Act, 1996 (for short, ‘the Arbitration Act’).<br>3. On the basis of a petition filed by the respondent under section 11 of the Arbitration Act, by the order dated 25th July 2018 passed by this Court in CMP No.208/2017, the dispute was referred to sole Arbitrator for adjudication which came to be registered as AC. No.131/2018. The claim made by the  respondent was for passing of an award against the appellants directing them to convey 50% share of the respondent in the undivided area along with possession of 50% share in the super built up area and covered/open car parking area in  the  commercial complex constructed on the schedule property and to direct the appellants to pay a sum of Rs.21 crores towards cost of construction, damages for unlawful termination of the JDA and compensatory damages. The present appellants made a counter claim in a sum of Rs.32,20,000/-.<br>4. An Award was made by the sole Arbitrator on 5th July 2019 in A.C.No.131/2018 holding that the notice of termination of JDA dated 14th December, 2017 issued by the appellants was valid  and legal and, therefore, the JDA entered into by and  between  the appellants and the respondent stood validly terminated from the date of service of the notice. The learned sole Arbitrator has proceeded to dismiss the claim made by the respondent- developer and the counter claim made by the appellants-owner.<br>5. Being aggrieved by the Award dated 5th July 2019 made by the sole Arbitrator in AC.No.131/2018, on 18th September 2019, the respondent has preferred Arbitration suit in Com.A.S. No. 144/2019 in the form of an application under Section 34 of the Arbitration Act which is pending adjudication before the Commercial Court. On 22nd June 2020, the respondent filed an application under Section 9 of the Arbitration Act before the Commercial Court at Bengaluru which has been numbered as Comm. A.A. No.45/2020. A prayer for temporary injunction was made in the said application by filing interlocutory application  being IA No.I under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure (for short, ‘the  said Code’).  The prayer in the   said application was for grant of an order of temporary injunction restraining the appellants from carrying out any  further construction activities and from making any structural alterations  to the building constructed by the respondent till the disposal of  the said application filed by the respondent under Section 34  of the Arbitration Act. An additional affidavit in support of the said application (IA-I) was filed by the respondent on  20th  October 2020 by placing on record the subsequent event of a Joint Development Agreement executed by the appellants in favour of one Sri Dinesh Pullipati in respect of the schedule property. The said Joint Development Agreement is referred as the  second  JDA.<br>6. By the Judgment and order dated 19th November 2020 which is impugned in this appeal, the interlocutory application IA No. I filed by the respondent under Order XXXIX,  Rules 1 and 2  of the Code in the petition filed under Section 9 of the Arbitration Act has been allowed by restraining the appellants from carrying out construction activities on the schedule property and from making modification or alteration to the construction already  carried out on the schedule property, till disposal of  the  application filed under Section 34 of the Arbitration Act. For challenging the said order dated 19th November,  2020,  the present appeal is preferred by the appellants, who are the owners of the schedule property.<br><span style=\"background-color: rgb(255, 255, 0);\">MAINTAINABILITY OF APPLICATION UNDER SECTION 9:</span><br>16. Now we come to the issue of maintainability of the application filed under Section 9 of the Arbitration Act by an unsuccessful claimant pending the application under Section 34 of the Arbitration Act for challenging the Arbitral Award. On this aspect, it will be necessary to make a reference to the decision of the Apex Court in the case of Mc Dermott International Inc. v. Burn Standard Co. Ltd., 2006 (11) SCC 181. In paragraphs 51 to 54, the Apex Court discussed the issue relating to the scope of the powers of the Court while dealing with the application filed under Section 34 of the Arbitration Act. In paragraph 52 of the said decision, the Apex Court held thus:<br>“52. The 1996 Act makes provision for the supervisory role of courts, for the review of the  arbitral award only to ensure fairness. Intervention of the court is envisaged in few circumstances  only, like, in case of fraud or bias by the arbitrators, violation of natural justice, etc. The court cannot correct errors of the arbitrators. It can only quash the award leaving the parties free to begin the arbitration again if it is desired. So, the scheme of the provision aims at keeping the supervisory role of the court at minimum level and this can be justified as parties to the agreement make a conscious decision to exclude the court\'s jurisdiction by opting for arbitration  as  they prefer the expediency and finality offered by it”.<br>Hence, the Apex Court, in categorical terms, held that while disposing of an application filed under Section 34 of  the Arbitration Act, the Court cannot correct the errors of the Arbitrators and at the highest, it can only quash the  Arbitral  Award and thereby leaving the parties free to  begin  the Arbitration again, if it is desired.<br>17. On this aspect, it is necessary to refer to another decision  of the Apex Court of a bench  consisting of three Hon’ble  Judges in the case of Kinnari Mullick and another –vs- Ghanshyam Das Damani (2018) 11 SCC 328. In the first paragraph of the said decision,  the Apex Court has noted the question for consideration before it, which reads thus:<br>“This appeal raises a short question as to whether Section 34(4) of the Arbitration and Conciliation Act, 1996 (for short “the Act”) empowers the Court to relegate the parties before the Arbitral Tribunal after having set aside the arbitral award in question and more so suo motu in the absence of any application made in that behalf by the parties to the arbitration proceedings?”.<br>This was a case before the Apex Court wherein the Award made by the Arbitrator was set aside on an application filed under Section 34 of the Arbitration Act on the ground that the Award impugned therein did not disclose the reasons in support of the same. By setting aside the Award, the  parties  were  left  to pursue their remedy in accordance  with law.  The order passed  by the learned Single Judge was challenged in appeal before the Division Bench of the Calcutta High Court. The Division Bench, while dismissing the appeal and affirming the order passed by the learned Single Judge, by placing reliance on the provisions of sub-section (4) of Section 34 directed that the Award be send  back to the Arbitrator with a direction to support his Award by assigning reasons. Therefore, the issue before the Apex Court   in the case of Kinnari Mullick (supra) was whether an order of remand can be made to the Arbitral Tribunal, while deciding the application filed under Section 34 of the Arbitration Act.<br>18. After referring to the earlier decisions including the decision in the case of McDermott International (supra), the Apex Court, in paragraphs 14 to 16 of its decision in the said case of Kinnari Mullick (supra) held thus:<br>“14. In this backdrop, the question  which  arises is: whether the highlighted portion in the operative part of the impugned judgment of the Division Bench can be sustained in law? For that, we may advert to Section 34(4) of the Act which is the repository of power invested in the Court. The same reads thus:<br>“34. (4) On receipt of an application under sub- section (1), the court may, where it  is  appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the Arbitral Tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of Arbitral Tribunal will eliminate the grounds for setting aside the arbitral award.”<br>15. On a bare reading of this provision, it is amply clear that the Court can defer the hearing of the application filed under Section 34 for setting  aside the award on a written request made  by a  party to the arbitration proceedings to facilitate the Arbitral Tribunal by resuming the arbitral proceedings or to take such other action as in the opinion of  the  Arbitral Tribunal will eliminate the grounds for setting aside the arbitral award. The quintessence for exercising power under this provision is that the arbitral award has not been set aside. Further, the challenge to the said award has been set up under Section 34 about the deficiencies in the  arbitral award which may be curable by allowing the Arbitral Tribunal to take such measures which can eliminate the grounds for setting aside the arbitral award. No power has been invested by Parliament in the Court to remand the matter to the Arbitral Tribunal except  to adjourn the proceedings for the limited purpose mentioned in sub-section (4) of Section  34.  This legal position has been expounded in McDermott International Inc. [McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181]  In para 8 of the said decision, the Court observed thus: (Bhaskar Industrial case [Bhaskar Industrial Development Ltd. v. South Western Railway, 2016 SCC OnLine Kar 8330] , SCC OnLine Kar)<br>“8. … Parliament has not conferred any power of remand to the Court to remit the matter to the Arbitral Tribunal except to adjourn the proceedings as provided under sub-section (4) of Section 34 of the Act. The object of sub-section  (4) of Section 34 of  the Act is to give an opportunity to the Arbitral Tribunal to resume the arbitral proceedings or to enable it to take such other action which  will eliminate the grounds for setting aside the arbitral award.”<br>16. In any case, the limited discretion available to the Court under Section 34(4) can be exercised only upon a written application made in that behalf by a party to the arbitration proceedings. It is crystal clear that the Court cannot exercise this limited power of deferring the proceedings before it suo motu. Moreover, before formally setting aside the award, if the party to the arbitration proceedings fails  to request the Court to defer the proceedings pending before it, then it is not open to the party to move an application under Section 34(4) of the Act. For, consequent to disposal of the main proceedings under Section 34 of the Act by the Court, it would become functus officio. In other words, the limited remedy available under Section 34(4) is required to be invoked by the party to the arbitral proceedings before the award is set aside by the Court”.<br>19.Hence, the larger Bench of the Apex Court has approved  the view taken in  the case of Mc Dermott International (supra)  by holding that Parliament has not conferred any power on the Court to remit the matter to the Arbitral Tribunal.  However, there  is a power to adjourn the proceedings of the application  filed under Section 34 for the limited purposes mentioned in sub- section (4) of Section 34 of the Act. The object of sub-section (4)  of Section 34 of the Act is to give an opportunity to the Arbitral Tribunal to resume the arbitral proceedings to enable it to take such action which will eliminate the grounds for setting aside the Arbitral Award.<br>20. At this stage, we must make a useful reference to a  decision of a Division Bench of this Court in the case of Bhaskar Industrial Development Limited –vs- South Western Railway, Hubballi 2016 SCC OnLine Kar 8330 wherein the issue before the Division Bench of this Court was whether a Court while dealing with an application- petition filed under Section 34 of the Arbitration Act has a power   to remit the matter to the Arbitral Tribunal after setting aside the Arbitral Award. After relying upon the decision of the Apex Court in the case of Mc Dermott International (supra), in paragraph 8, the Division Bench of this Court held thus:<br>“8. A plain reading of Section 34 of the Act extracted above will show that Parliament has not conferred any power of remand to the Court to remit the matter to the Arbitral Tribunal except to adjourn the proceedings as provided under  sub-Section  (4) of Section 34 of the Act. The object of sub-Section (4) of Section 34 is to give an opportunity to the Arbitral Tribunal to resume  the  arbitral proceedings or to enable it to take such other action which will eliminate the grounds for setting aside the arbitral award. This provision (sub-Section (4)) cannot be invoked, once the arbitral Award is set-aside”.<br>21.In paragraph-52 of the decision of the Apex Court in the case of Mc Dermott International (supra), the Apex Court specifically held that while deciding the application under Section 34, the Court cannot correct the errors of the Arbitrator and it can only quash the award leaving the parties free to begin the Arbitration again. If the errors are such that the Arbitral Award is rendered illegal, there is no option available to the Court  to  correct such errors. The only option  available  to  the Court in  such case is to set aside the Award without correcting the said error. The reason is that after the parties  have  consciously chosen to exclude the jurisdictional Court, the parties  should  again go back to the Arbitration after the Award is set aside.<br>22. Incorporation of sub-section (4) of Section 34 of the Arbitration Act is very significant. It empowers the Court on an application filed by the parties to give the Arbitral Tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of the Arbitral Tribunal will eliminate the grounds for setting aside the arbitral award. If the intention of the Legislature was to confer a power on the Court while dealing with an application filed under Section 34 of the Arbitration Act to correct the errors or mistakes committed by the Arbitral Tribunal, there was no reason for the Legislature to incorporate sub-section (4) of Section 34 of the Arbitration Act. If it is held that the Court dealing with an application under Section 34 has a power to  modify the Award or to correct errors of the Arbitrator  and  to make a modified award, the provision of sub-section (4)  of  Section 34 will become redundant, as it will not be necessary for the Court to exercise the power under sub-section (4) of Section 34, as the Court can itself correct the errors. In paragraph 52 of the decision of the Apex Court rendered in the case of  Mc Dermott International (supra) the word “only” has been used while observing that the Court cannot correct errors of the arbitrators and it can “only” quash the award leaving the parties free to begin the arbitration again if it is desired.<br>23. At this stage, it is necessary to make a reference to Section 43 of the Arbitration Act.....Sub-Section (4) of Section 43 applies to a situation when  the Court exercising the jurisdiction under Section 34 of  the  Arbitration Act sets aside an Arbitral Award. Sub-Section (4) provides for exclusion of the period spent in Arbitration and the application under Section 34.  This enables the successful party   in Section 34 application to again take recourse  to  Arbitration after the Award is set aside by the Court. If the intention of the Legislature was to confer a power on the Court dealing with an application under Section 34 of the Arbitration Act to modify the Award or to make a fresh Award, there was no reason to make a provision in the form of sub-section (4) of Section 43. This supports the conclusion that the Court dealing with application under Section 34 cannot modify or substitute Arbitral Awards.<br>24. Therefore, in a case, where the Court dealing with an application filed under Section 34 of the Arbitration Act finds that the claim of the claimant was erroneously rejected or the Arbitral Tribunal has committed an illegality by rejecting the claim, the Court can set aside the award so that the claimant can again go back to the Arbitration. In such a case, by correcting the error made by the Arbitrator, the Court cannot make an  Award in  favour of the  claimant after setting aside award.  If, after perusal  of the award, a view is taken by the Court that the rejection of the claim made by the claimant by the Arbitral Tribunal is illegal, in view of the law laid down by the Apex Court in paragraph-52  of  Mc Dermott International (supra), the Court is required to set aside the arbitral award enabling the parties to begin the  arbitration again. As pointed out earlier, there are two parts in the conclusions recorded by the Apex Court in paragraph-52.  The  first part is that the Court cannot correct the errors committed by the Arbitrator and the second part is that the Court can “only” quash the Award. <b style=\"background-color: rgb(255, 255, 0);\">Therefore, if an Award rejecting the claim of the claimant who has filed an application under Section 34  is found to be illegal, a fresh award cannot be made by the Court in favour of the claimant while allowing the application filed under Section 34. The only option in such a case is to set aside the award and leave the parties to resume the Arbitration once again.</b><br>28.The scope of the revisional jurisdiction conferred on  the High Court under Section 115 of the said Code is completely different from the limited supervisory jurisdiction conferred on the Court under Section 34 of the Arbitration Act. We may note here that in the case of Steel Authority of India Limited vs Gupta Brother Steel Tubes Limited (2009) 10 SCC 63,the Apex Court held that while dealing with an application under Section 34  of  the  Arbitration Act, it is not permissible to a Court to examine the correctness of the findings of the Arbitrator, as if it was sitting in appeal over his findings. The powers of the High Court under Section 115 of the Code are much wider. High Court can interfere with the decision even on the ground of material irregularity as is clear from clause (c) of sub-section (1) of Section 115 of the  said Code.  As  held  by the Apex Court in the case of Masjid Kacha Tank, Nahan –  vs- Tuffail Mohammed AIR 1991 SC 455, the High Court while exercising its power under Section 115 of the said Code can interfere with the finding of fact recorded by the Court sub-ordinate to it on the ground that it is perverse. The High Court, while exercising the jurisdiction under Section 115 of the said Code can interfere with the findings of the Court on the ground of non-consideration of evidence.<br>32. Thus, on its plain reading, an application under Section 9 can be made at three stages. (i) Before commencement of Arbitration; (ii) during the pending of arbitral proceedings and (iii) after making an Award, but before it is enforced. Hence, after conclusion of the arbitral proceedings, recourse can be taken to Section 9 of the Arbitration Act before  the  Award  is  enforced. The third contingency will arise only if there is an award made which is capable of being enforced. If, by the award, the claim is rejected, the unsuccessful party cannot take recourse to Section 9 of the Arbitration Act, pending the decision on Section 34 application.<br>35.In the facts of the present case, the entire claim made by  the respondent has been rejected by the Arbitral Tribunal. Therefore, even if the respondent succeeds in  the  application  filed under Section 34 of the Arbitration Act, at the highest, the Arbitral Award can be set aside, leaving the parties to begin fresh arbitration.  Therefore, this Court is of the considered view that  the order of interim relief granted under the impugned order by allowing the application filed under Rules 1 and 2 of Order XXXIX of the said Code is illegal as it is not in aid of the final relief which can be granted in the pending application filed under Section 34   of the Arbitration Act. <br>O R D E R<br>i)The appeal is allowed;<br>ii) That part of the impugned order dated 19th November 2020 passed by the LXXXIII Additional City Civil and Sessions Judge, Bengaluru city (CCH-84) by which IA No.I  is allowed, is hereby set aside and the application being IA  No. I filed in Com.A.A. No.45/2020 stands dismissed;<br>iii) The direction regarding expeditious hearing of Com. A.S. No. 144/2019 is hereby maintained;<br><br><br></h4><p><br></p>', '7e7d8f53467b8e52955fd0567e25fa25.PNG', 'c2b3af44ffcaf2fc0b69061c8b8af7d6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-22', 1, '', '', '2021-03-22 23:52:17', '2021-03-23 00:03:29');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(612, 'Ev90bunJVgl2VEqu6TIRpmIwg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Industrial Disputes Act. Reference to Industrial Tribunal cannot be quashed merely on the ground of delay when factual antecedents disclose diligent prosecution seeking status of protected workman. Case law discussed. Karnataka High Court. 22 Feb 2021', '<h4>M/s. Bata India Limited vs State of Karnataka and another. </h4><h4>Writ Petition 47002 of 2015 decided on 22 February 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/372324/1/WP47002-15-22-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/372324/1/WP47002-15-22-02-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:Petitioner-M/s Bata India Limited has called in question reference made by the appropriate Government referring the dispute to the Industrial Tribunal at Bangalore for adjudication of its order dated 31.03.2015.<br>8. .....whether the reference dated 31.03.2015 should be quashed on the ground of delay?”<br>9. Before embarking upon the facts of the case, I feel it germane to notice the law laid down by the Apex Court and other High Courts as to whether the delay in reference would vitiate the order of reference by the dispute becoming stale.<br></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Cases referred</span>: Nedungadi Bank Limited vs K.P. Madhavankutty reported in (2000) 2 SCC 455; Dharappa vs Bijapur Coop Milk Producers Societies Union Limited reported in (2007) 9 SCC 109; State of Karnataka vs Ravi Kumar reported in (2009) 13 SCC 746; Rabhubir Singh vs Haryana Roadways reported in (2014) 10 SCC 301; Prabhakar vs Sericulture Department reported in (2015) 15 SCC 1</h4><h4>.....<b style=\"background-color: rgb(255, 255, 0);\">Therefore, in the light of the law laid down by the Apex Court in the aforesaid cases, which are  relied  on  by  both the learned Counsel for the parties, what would unmistakably emerge is that the workman or the Union espousing the cause  of the workman should be diligent  or indolent. The workman should not have slept over his rights for a long period and should have a plausible explanation for the delay in raising the dispute.  A  dispute in a given case should exist  and  should  not  have become stale.</b><br>17. In my considered view, on the ground that the dispute had become stale and the delay on the part  of  the workman, as contended by the learned counsel for  the management is unacceptable, as  the  entire  narration of dates hereinabove of the events that have taken place would lead to an unmistakable conclusion that the workman or the Union were not indolent  as  they were diligently prosecuting the proceedings for getting the status of a protected workman to the workman, which in fact was allowed by the competent authority and the writ petition against that filed by the management was dismissed by an order dated  31.01.2009 and the entire proceedings ultimately culminated in dismissal of a Special Leave Petition filed by the Union on 22.08.2014.<br>18. The dispute having been referred immediately thereafter, cannot be held to be unsustainable on the ground of delay. The Apex Court in the case of Prabhakar (supra) at paragraphs 42.5, 43, 44 and 45  after analyzing the entire spectrum of law with regard to delayed reference has clearly held that <b style=\"background-color: rgb(255, 255, 0);\">if the workman was agitating his right even before a wrong forum, it cannot be said that the dispute is not alive and such a dispute cannot be turned down on the ground of delay.  In all the afore-extracted judgments, the law that is laid down is that if the Labour Court would find that the dispute was in fact delayed it can always  mould  the  relief to either grant reinstatement or  lesser backwages or no backwages. The issue is at large before the labour Court and the order of reference in my considered view cannot be annulled on the ground of delay.</b><br>20. For the aforesaid reasons, I pass the following:<br>O R D E  R<br>(i) The writ petition is dismissed.<br>(ii) Since the issue of dismissal from service is of the year 2001, I direct  the  Industrial Tribunal to conclude the proceedings within outer limit of six months’ from the date of receipt of copy of the order.<br>(iii) It is needless to observe that the parties to  the lis shall co-operate in the proceedings before the Industrial Tribunal failing which, the Industrial Tribunal for reasons to be recorded, is at liberty to proceed further in accordance with law.<br><br><br></h4>', '3427cb95deab8aacbe8854eb809179bc.jpg', '9df5e9b163de30c3056bc95238d17bf6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-22', 1, '', '', '2021-03-23 03:39:42', '2021-03-23 03:41:58'),
(613, 'Hzul8eIzbciEizVHDuJ1X3Kmp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Payment of Gratuity Act 1972. Payment of gratuity would NOT depend upon an application being made by the employee. Employer is duty bound to dispense gratuity immediately after cessation of service of an employee. Karnataka High Court. ', '<h4><b>Varma Industrial Private Limited and another vs P.N.Janakiraman Shetty. </b></h4><h4><b>Writ Petition 2759 of 2019 decided on 22 February 2021. </b></h4><h4><b>Justice M. Nagaprasanna.</b></h4><h4><b>The petitioners/Verma Industrial Private Limited and IBC Knowledge Park Private Limited have called in question the order of the Controlling Authority under the Payment Gratuity Act, 1972 directing payment of interest against the 1st petitioner  and  payment  of gratuity in respect of the 2nd petitioner. For the sake of convenience the petitioners will be referred to as petitioners and the respondent as the workman in this order. <br></b></h4><h4><b>8. Having considered the rival submissions the only issue that falls for my consideration is<span style=\"background-color: rgb(255, 255, 0);\">, whether payment of gratuity would depend upon an application being made by the employee or the employer is duty bound to dispense gratuity  immediately  after cessation of service of an employee.</span><br></b></h4><h4><b>10. The Controlling Authority and the Appellate Authority by the impugned orders have saddled the interest on the 1st petitioner company for the delay payment for 13 years of delay in making payment of gratuity and interest on the  2nd  petitioner company  as no gratuity was paid  by  the  2nd  petitioner on cessation of employment. <br></b></h4><h4><b>11...<span style=\"white-space:pre\">	</span>provisions of the Payment of Gratuity Act makes it  unmistakably  clear  that gratuity shall be paid to an employee on his superannuation or on his retirement or resignation inter alia. <br></b></h4><h4><b>12. A bare reading of Section 7(1) of the Act which determines the amount of gratuity that a person is  eligible under the Payment of Gratuity Act or any person authorized in writing to act on his behalf shall send a written application to the employer. Therefore, sub- section (1) of Section 7 poses a duty upon  the  person who is eligible for gratuity to send a written application  to the employer. Sub-Section (2) of Section 7 mandates that as soon as gratuity becomes payable, the employer shall whether an application referred to in sub-Section (1) has been made or not determine the amount of gratuity and give a notice in writing to the persons to whom gratuity is payable and also to the Controlling Authority specifying the gratuity so determined which would clearly mean that even if no such written application is made by the employee seeking gratuity under sub-section (1) of Section 7 it is the duty of the employer to determine the gratuity and give a notice in writing to the person whom the gratuity is payable. <br></b></h4><h4><b>13. Sub-section (3) of Section 7 provides that the employer shall arrange to pay the amount of gratuity within 30 days from the date it becomes payable  meaning thereby that if the determination  of  the  amount as provided under sub-section  (2) of  Section  7 is made, the amount of gratuity has to be paid within 30 days from the date it becomes payable. Proviso to sub- section (3-A) absolves the employer from payment of any interest on delayed payment of gratuity only when there is a fault on the part of the employee and the employer has obtained permission of the Controlling Authority in writing for such delayed payment.<br></b></h4><h4><b><br><span style=\"background-color: rgb(255, 255, 0);\">14. A conjoint reading of the afore-extracted provisions of the Payment of Gratuity Act would leave none in doubt that gratuity is payable to an employee within 30 days from the date on which cessation of employment happened in the mode indicated under Section 4 failing which the employee is entitled to interest on delayed payment of gratuity. In my  considered view the Act nowhere casts  an  obligation  that gratuity shall be paid to an employee only on an application to be made by the employee seeking such gratuity. Sub-section (2) of Section 7 clearly mandates that whether application for gratuity is filed by an employee or not, the employer is under obligation to settle gratuity within 30 days of cessation of service of  the employee. </span><br></b></h4><h4><b>15. Therefore, the submission made by the learned counsel appearing for the petitioners that gratuity becomes payable to an employee only on application being made to the employer becomes a figment of imagination as the mandate of law.. a<br></b></h4><h4><b>19. Therefore the plea that the petitioner, as advanced, that gratuity is payable only  on  an  application being made before the employer placing reliance upon Rule 7 of the Karnataka Payment of Gratuity Rules, 1973 deserves to be rejected and is rejected. For the aforesaid reasons, I find no good  ground that would warrant my interference with the orders impugned.<br></b></h4><h4><b>Accordingly, the writ petition lacks merit, is dismissed. No costs.</b><br></h4>', '7db7f110e7479e672053101b8059b5d1.jpeg', '2f33a72469c2fe77b9c012309f722e5e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-03', 1, '', '', '2021-03-23 04:04:06', '2023-02-03 13:05:40'),
(2631, 'zi76TqumKv6z8FMHKiyeQuEfl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Article 43 of the Constitution. State and public employers have an obligation to address, as a measure of public interest, the ill-effects of rise in the cost of living, on account of price rise, which results in fall in real wages. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Maharashtra State Financial Corporation Ex-Employees Association and others Vs State of Maharashtra and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 778 of 2023 decided on 2 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Aniruddha Bose and Justice S. Ravindra Bhat.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. What is involved in this case, is the fixation of date for the\r\nimplementation of the Fifth Pay Commission recommendations, when applied\r\nto the respondent Corporation. That framing a policy concerning fixation of pay <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for the salaries of its employees, the extent of its revision, and even the date of\r\nits implementation, are matters of undoubted exclusive executive decision\r\nmaking powers. However, the manner of its implementation, the timing of\r\napplicability of a scheme, and its impact, especially where it results in exclusion\r\nof a certain section of public employees from the benefit, are subject matters of\r\nscrutiny by the court, especially, when the complaint is of discrimination and\r\nviolation of Article 14 of the Constitution. This is one such case.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3. The appellant association (consisting of employees who had\r\nsuperannuated, opted for VRS, resigned, or legal heirs of expired employees of\r\nthe respondent corporation) challenge a judgment1\r\n of the Bombay High Court\r\n(Nagpur bench). In that proceeding, the appellants had complained of\r\ndiscrimination against the decision dated 29.03.2010, of the Industry, Energy\r\nand Labour Department, Government of Maharashtra (hereafter “the State”).\r\nThat decision denied the benefit of revision of pay scales, as recommended by\r\nthe Fifth Pay Commission, to the employees of the Maharashtra State Financial\r\nCorporation (hereafter “MSFC”) who had retired or died during the period of\r\n01.01.2006 to 29.03.2010. That decision of the State made the revision of pay\r\nscale as a result of the Report of the Fifth Pay Commission applicable to 115\r\nemployees of MSFC who were working as on 29.03.2010. The revision,\r\nhowever, was given effect from 01.01.2006.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The appellants had urged before the High Court, that denying them the\r\nbenefit of pay scales was discriminatory and arbitrary, because they were in\r\ncontinuous service, and had even received the benefit of interim revision,\r\npending finalization of pay scales pursuant to the Pay Commission Report. It\r\nwas urged that those in employment on and after 29.03.2010, and those who\r\ncontinued in service after 01.01.2006 but retired before 29.03.2010, belonged to\r\nthe same category. The only difference between those who were in service after\r\nthe latter date, was that they had longer period of service. However, the crucial\r\ndate for grant of pay revision, was the date from which it was given effect to,\r\ni.e., 01.01.2006. As all the appellants were in service as on that date, the denial\r\nof pay revision, which was concededly for the period they had worked,\r\namounted to not only hostile discrimination, but also withholding of pay\r\nrevision benefits, legitimately and rightfully theirs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. A close analysis of the facts would show that the question of pay revision\r\nof employees of MSFC has been engaging attention for a considerable period of\r\ntime. Apparently, the recommendations of the Fifth Pay Commission had been\r\nmade and were implemented by the State Government with effect from\r\n01.01.1996. However, the MSFC, did not, finalise whether to adopt those scales\r\nfor its employees and sent the proposal to the State Government (as provided\r\nunder S. 39 of the State Financial Corporations Act). In the meanwhile, interim\r\nrelief of pay revision was granted to all existing employees. Some of these\r\norders granting interim relief towards pay revisions have been placed on the\r\nrecord. They are orders/decisions dated 03.03.1994 (Office Order No.191);\r\n03.03.1994 (Office Order No. 19); 11.10.1995 (Office Order No.73); and\r\n07.09.1996 (Office Order No.66), which are part of the appeal records. Those <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">employees who were on the rolls of MSFC between 01.01.1996 and 29.03.2010\r\nconcededly enjoyed the benefits of these interim payments. On 29.03.2010,\r\nMSFC decided to implement the pay revision recommendations of the Fifth Pay\r\nCommission.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>36. In the present case, too, there is no denial that the employees who retired\r\nprior to 29.03.2010 discharged the same duties as in the case of those who did <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">thereafter. The quality and content of responsibilities assigned to them were the\r\nsame. The respondents’ decision not to grant arrears prior to 01.01.2006 cannot\r\nbe found fault with; however, not to grant any revision to those who were not in\r\nservice when the order implementing the pay revision was issued and confining\r\nit to those, in employment is clearly discriminatory. The rationale that granting\r\nsuch pay revision only to existing employees would be to enthuse them to\r\nrecover NPA amounts payable to MSFC has no rational nexus with the object\r\nsought to be achieved by the pay revision, which is to benefit employees and\r\nprotect them from the rise in the cost of living.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>37. In the present case, therefore, applying the ratio in the above decisions, it\r\nis clear that there is no distinction between those who retired (or died in service)\r\nbefore 29.03.2010 and those who continued in service - and were given the pay\r\nrevision. Those who worked during the period 01.01.2006 to 29.03.2010 and\r\nthose who continued thereafter, fell in the same class, and a further distinction\r\ncould not be made. The fact that the MSFC did not recover any interim relief, or\r\nad-hoc amount disbursed between 18.09.1996 to 31.12.2005 (towards\r\nrecommendations of the 5th Pay Commission), also reaffirms that these exemployees belonged to the same class as those that received the benefit of the\r\npay revisions. The exclusion of the retired employees, who retired between\r\n01.01.2006 and 29.03.2010 on achieving their date of superannuation, is\r\nviolative of Article 14 of the Constitution of India.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>38. However, in the opinion of this court, employees who secured VRS\r\nbenefits and left the service of MSFC voluntarily during this period, stand on a\r\ndifferent footing. They cannot claim parity with those who worked\r\ncontinuously, discharged their functions, and thereafter superannuated. VRS\r\nemployees chose to opt and leave the service of the corporation; they found the\r\nVRS offer beneficial to them. Apart from the normal terminal benefits they\r\nwere entitled to, the additional amount each of them was given - was an exgratia amount, equal to a month’s salary for each completed year of service.\r\nOther retired employees were never given such amounts.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>39. For the above reasons, it is held that VRS employees cannot claim parity\r\nwith others who retired upon achieving the age of superannuation. Likewise,\r\nthose who ceased to be in employment, for the reason of termination, or their\r\ndismissal, etc., would not be entitled to the benefit of pay revision.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>40. In view of the above findings, the impugned judgment and order is\r\nhereby set aside. The appeal is accordingly allowed, to the extent that those who\r\nretired from the services of MSFC between 01.01.2006 to 29.03.2010, and the\r\nlegal heirs/representatives of those who died during that period, shall be entitled\r\nto arrears based on pay revision, accepted by the Corporation. The Corporation\r\nis directed to pay interest @ 8% p.a. on these arrears from 01.04.2010 till the\r\ndate of this judgment. These amounts shall be calculated and disbursed to those\r\nindividuals within eight weeks from today. The appeal is partly allowed, in the\r\nabove terms. There shall be no order on costs. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3bce0a9cc636947cce00ad057661d78d.jpeg', 'beea1d54eeb9cc258e201974fd151e99.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-06', 1, '', '', '2023-02-03 13:33:29', '2023-02-06 10:36:29'),
(614, 'HYlHsfIbXuU0AD2D89vsuOdXJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Penal Code. Section 34. Presence of the the accused to facilitate the execution of the common design amounts to actual participation in the criminal act. Supreme Court. 23 March 2021', '<h4>Netaji Achyut Shinde (Patil) &amp; another vs The State of Maharashtra. </h4><h4>Criminal Appeal 121 of 2019 decided on 23 March 2021. </h4><h4>Justice Hemant Gupta and Justice S. Ravindra Bhat. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2018/36537/36537_2018_37_1502_27213_Judgement_23-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/36537/36537_2018_37_1502_27213_Judgement_23-Mar-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 31. What constitutes proof of common intention, may differ from situation to situation and much depends on the facts of each case and the role played by each accused. This was highlighted in Ramaswami Avyangar v. State of Tamil Nadu, (1976) 3 SCC 779 where, to establish common intention it was held that:</h4><h4 style=\"margin-left: 25px;\">“12.... The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to the relief of the victim, or may otherwise facilitate the execution of the common design. Such a person also commits an \"act\" as much as his coparticipants actually committing the planned crime. In the case of an offence involving physical violence, however, it is essential for the application of Section 34 that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design, is itself tantamount to actual participation in the \'criminal act\'. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them....”</h4><h4>32. In Nandu Rastogi v. State of Bihar (2002) 8 SCC 9, highlighting how there can be inference regarding common intention this court observed that:</h4><h4 style=\"margin-left: 25px;\">“17.... They came together, and while two of them stood guard and prevented the prosecution witnesses from intervening, three of them took the deceased inside and one of them shot him dead. Thereafter they fled together. To attract Section 34 Indian Penal Code it is not necessary that each one of the Accused must assault the deceased. It is enough if it is shown that they shared a common intention to commit the offence and in furtherance thereof each one played his assigned role by doing separate acts, similar or diverse....</h4><h4>33. Recently, in Subed Ali And Others v. The State Of Assam 2020 (10) SCC 517 this court ruled that</h4><h4 style=\"margin-left: 25px;\">“Common intention consists of several persons acting in unison to achieve a common purpose, though their roles may be different. The role may be active or passive is irrelevant, once common intention is established. There can hardly be any direct evidence of common intention. It is more a matter of inference to be drawn from the facts and circumstances of a case based on the cumulative assessment of the nature of evidence available against the participants. The foundation for conviction on the basis of common intention is based on the principle of vicarious responsibility by which a person is held to be answerable for the acts of others with whom he shared the common intention. The presence of the mental element or the intention to commit the act if cogently established is sufficient for conviction, without actual participation in the assault. It is therefore not necessary that before a person is convicted on the ground of common intention, he must be actively involved in the physical activity of assault.”<br></h4><h4 style=\"\"><b style=\"background-color: rgb(255, 255, 0);\">34. Here, the physical presence of the accused (including Appellant Nos. 1 and 3) at the site of the actual commission of the crime and the deposition of independent witnesses about their role, clearly establishes that it was for the purpose of facilitating the offence, the commission of which was the aim of the joint criminal venture. The presence of these accused, to facilitate the execution of the common design amounts to actual participation in the criminal act. The evidence – i.e. the exhortation by these accused, their active role in attacking the deceased, chasing him and leaving the crime scene together, clinches that there was a consensus of the minds of persons participating in the criminal action to bring about a particular result. It was this aspect which the trial court glaringly overlooked, and instead, misdirected itself grossly in focusing upon the first intimation, treating it as the FIR, and therefore, proceeding to doubt the prosecution version. It found no lacunae in the testimonies of the eyewitnesses discussed above. However, proceeding on the thesis that the first intimation was the FIR, and that it did not describe the role of four persons, but only mentioned two, the trial court acquitted the two accused.&nbsp;</b><br></h4><p><br></p>', '7b109f74144c4972fdd54371f0874b2a.jpg', '0361e542e0f83972b2e4b36b273f736f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-23', 1, '', '', '2021-03-24 01:23:24', '2021-03-24 01:23:24'),
(615, 'XYuTKXvh0IBkfjHhRkgSPK2vs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Insolvency and Bankruptcy Code 2016. Time spent under the SARFAESI Act is to be excluded in proceedings under Sections 7 and 9 IBC applying the principles of Section 14 Limitation Act. Supreme Court. 22 March 2021 ', '<h4>Sesh Nath Singh &amp; another vs Baidyabati Sheoraphuli Co-Operative Bank Ltd and another. </h4><h4>Civil Appeal 9198 of 2019 decided on 22 March 2021. </h4><h4>Justice Indira Banerjee and Justice Hemant Gupta. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/43226/43226_2019_40_1501_27085_Judgement_22-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/43226/43226_2019_40_1501_27085_Judgement_22-Mar-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs:</span> 57. The issues involved in this appeal are:-<br>(i) Whether delay beyond three years in filing an application under Section 7 of IBC can be condoned, in the absence of an application for condonation of delay made by the applicant under Section 5 of the Limitation Act, 1963?<br>(ii) Whether Section 14 of the Limitation Act, 1963 applies to applications under Section 7 of the IBC? If so, is the exclusion of time under Section 14 is available, only after the proceedings before the wrong forum terminate?<br>58. For the sake of convenience, and to avoid prolixity and unnecessary repetition, all the aforesaid issues are dealt with together. Section 238A of the IBC provides that the provisions of the Limitation Act shall, as far as may be, apply to proceedings before the Adjudicating Authority(NCLT) and the NCLAT.<br>59. It is well settled by a plethora of judgments of this Court as also different High Courts and, in particular, the judgment of this Court in B.K. Educational Services Private Limited v. Parag Gupta Associates and Ors. (supra) the NCLT/NCLAT has the discretion to entertain an application/appeal after the prescribed period of limitation. The condition precedent for exercise of such discretion is the existence of sufficient cause for not preferring the appeal and/or the application within the period prescribed by limitation.&nbsp;<br>61. The condition precedent for condonation of the delay in filing an application or appeal, is the existence of sufficient cause. Whether the explanation furnished for the delay would constitute ‘sufficient cause’ or not would dependent upon facts of each case. There cannot be any straight jacket formula for accepting or rejecting the explanation furnished by the applicant/appellant for the delay in taking steps. Acceptance of explanation furnished should be the rule and refusal an exception, when no negligence or inaction or want of bona fides can be imputed to the defaulting party.<br>63. Section 5 of the Limitation Act, 1963 does not speak of any application. The Section enables the Court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the Court that he had sufficient cause for not making the application and/or preferring the appeal, within the time prescribed. Although, it is the general practice to make a formal application under Section 5 of the Limitation Act, 1963, in order to enable the Court or Tribunal to weigh the sufficiency of the cause for the inability of the appellant/applicant to approach the Court/Tribunal within the time prescribed by limitation, there is no bar to exercise by the Court/Tribunal of its discretion to condone delay, in the absence of a formal application.&nbsp;<br>64. A plain reading of Section 5 of the Limitation Act makes it amply clear that, it is not mandatory to file an application in writing before relief can be granted under the said section. Had such an application been mandatory, Section 5 of the Limitation Act would have expressly provided so. Section 5 would then have read that the Court might condone delay beyond the time prescribed by limitation for filing an application or appeal, if on consideration of the application of the appellant or the applicant, as the case may be, for condonation of delay, the Court is satisfied that the appellant/applicant had sufficient cause for not preferring the appeal or making the application within such period. Alternatively, a proviso or an Explanation would have been added to Section 5, requiring the appellant or the applicant, as the case may be, to make an application for condonation of delay. However, the Court can always insist that an application or an affidavit showing cause for the delay be filed. No applicant or appellant can claim condonation of delay under Section 5 of the Limitation Act as of right, without making an application.<br><b style=\"background-color: rgb(255, 255, 0);\">68. We see no reason why Section 14 or 18 of the Limitation Act, 1963 should not apply to proceeding under Section 7 or Section 9 of the IBC. Of course, Section 18 of the Limitation Act is not attracted in this case, since the impugned order of the NCLAT does not proceed on the basis of any acknowledgment.</b><br>75. There can be little doubt that Section 14 applies to an application under Section 7 of the IBC. At the cost of repetition, it is reiterated that the IBC does not exclude the operation of Section 14 of the IBC. The question is whether prior proceedings under the SARFAESI Act do not qualify for the exclusion of time under Section 14, inasmuch as they are not civil proceedings in a Court, as argued by Mr. Dave.<br>87. In our view, since the proceedings in the High Court were still pending on the date of filing of the application under Section 7 of the IBC in the NCLT, the entire period after the initiation of proceedings under the SARFAESI Act could be excluded. If the period from the date of institution of the proceedings under the SARFAESI Act till the date of filing of the application under Section 7 of the IBC in the NCLT is excluded, the application in the NCLT is well within the limitation of three years. Even if the period between the date of the notice under Section 13(2) and date of the interim order of the High Court staying the proceedings under the SARFAESI Act, on the prima facie ground of want of jurisdiction is excluded, the proceedings under Section 7 of IBC are still within limitation of three years.&nbsp;<br>95. If, in the context of proceedings under Section 7 or 9 of the IBC, Section 14 were to be interpreted with rigid and pedantic adherence to its literal meaning, to hold that only civil proceedings in Court would enjoy exclusion, the result would be that an applicant would not even be entitled to exclusion of the period of time spent in bona fide invoking and diligently pursuing an earlier application under the same provision of IBC, for the same relief, before an Adjudicating Authority, lacking territorial jurisdiction This could not possibly have been the legislative intent.<br><b style=\"background-color: rgb(255, 255, 0);\">101. In our considered view, keeping in mind the scope and ambit of proceedings under the IBC before the NCLT/NCLAT, the expression ‘Court’ in Section 14(2) would be deemed to be any forum for a civil proceeding including any Tribunal or any forum under the&nbsp;SARFAESI Act.</b></h4><h4>102. In any case, Section 5 and Section 14 of the Limitation Act are not mutually exclusive. Even in a case where Section 14 does not strictly apply, the principles of Section 14 can be invoked to grant relief to an applicant under Section 5 of the Limitation Act by purposively construing ‘sufficient cause’. It is well settled that omission to refer to the correct section of a statute does not vitiate an order. At the cost of repetition it is reiterated that delay can be condoned irrespective of whether there is any formal application, if there are sufficient materials on record disclosing sufficient cause for the delay.</h4>', 'b00c6138b1b8e33f946717c626d74d50.PNG', '666a5f9ea146b5c66cdfe9b34f249295.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-22', 1, '', '', '2021-03-24 02:19:20', '2021-03-24 02:19:20'),
(2670, 'L6cgm6GCiibh9ljb6cpUcnrbU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Supreme Court cannot issue a writ of certiorari quashing the recommendation, or mandamus calling upon the Collegium of the Supreme Court to reconsider its decision. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Anna Mathews and others Vs Supreme Court of India and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition (Civil) 148 of 2023 decided on 10 February 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Sanjiv Khanna and Justice B.R. Gavai.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The legal issue raised in the aforementioned writ petitions relates to the scope and ambit of judicial review in the matter of appointment of judges to the High Courts under Article 217 of the Constitution of India. </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. In our opinion, this legal issue is settled and is not res integra.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. This Court, in Mahesh Chandra Gupta v. Union of India and Others , has held that appointment of a judge is an executive function of the President of India. Article 217(1) prescribes the constitutional requirement of consultation. Fitness of a person to be appointed as a judge of the High Court is evaluated in the consultation process. Evaluation of the worth and merit of a person is a matter entirely different from eligibility of a candidate for elevation. While Article 217(2) prescribes the threshold limit or the entry point for a person to be qualified to be a judge of a High Court, Article 217(1) prescribes the procedure to be followed, which <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">procedure is designed to test the fitness of a person so to be appointed; her character, her integrity, her competence, her knowledge and the like. Thus, this judgment draws on the basic difference between eligibility and suitability. Eligibility is an objective factor which is determined by applying the parameters or qualifications specified in Article 217(2). Therefore, when eligibility is put in question, the question would fall within the scope of judicial review. However, the question whether a person is fit to be appointed as a judge essentially involves the aspect of suitability and stands excluded from the purview of judicial review.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">8. During the course of hearing before us, it was accepted that a number of persons, who have had political backgrounds, have been elevated as judges of the High Courts and the Supreme Court, and this by itself, though a relevant consideration, has not been an absolute bar to appointment of otherwise a suitable person. Similarly, there have been cases where the persons recommended for elevation have expressed reservations or even criticised policies or actions, but this has not been held to be a ground to treat them <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as unsuitable. It goes without saying that the conduct of the judge and her/his decisions must reflect and show independence, adherence to the democratic and constitutional values. This is necessary as the judiciary holds the centre stage in protecting and strengthening democracy and upholding human rights and Rule of Law.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">10. We are clearly of the opinion that this Court, while exercising power of judicial review cannot issue a writ of certiorari quashing the recommendation, or mandamus calling upon the Collegium of the Supreme Court to reconsider its decision, as this would be contrary to the ratio and dictum of the earlier decisions of this Court referred </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to above, which are binding on us. To do so would violate the law as declared, as it would amount to evaluating and substituting the decision of the Collegium, with individual or personal opinion on the suitability and merits of the person.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">11. The decision of this Court in Shri Kumar Padma Prasad v. Union of India and Others , was a case relating to eligibility of a person, in whose favour the warrant for appointment as a judge of the High Court had been issued, but who was not qualified to be appointed as a judge of the High Court. The ratio of this judgment cannot be extended to apply the power of judicial review to examine the suitability or merit of a candidate.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12. We may also state that the person in question has been elevated as an Additional Judge of the High Court of Judicature at Madras. On taking oath the person pledges to work as a judge to uphold the Constitution and the laws. Article 51A8 of the Constitution casts an obligation on every citizen, and more so on every judge, to promote harmony, spirit of common brotherhood among all transcending religious, linguistic, regional or sectional diversities. Principle of secularism and dignity of every individual – regardless of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">religion, caste or creed, is the foundation of Rule of Law and equal protection of laws. Not only is the conduct and judgments delivered considered at the time of confirmation, a judge is judged everyday by the lawyers, litigants and the public, as the courts are open and the judges speak by giving reasons in writing for their decisions.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">13. For the aforesaid reasons, we do not find any merit in the present writ petitions and, thus, we are not inclined to entertain and issue notice.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">14. The writ petitions are dismissed at the admission stage.</span></span></p>', '24c5b134aca841db8960f2a60d4ac36e.jpeg', 'cdd7a023f3d153b0302137bad14b2de7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-15', 1, '', '', '2023-02-14 12:51:33', '2023-02-15 08:00:05');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2662, 'DyasKnHpMBekVb1cwGSW8pNJC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Non-compliance of mandatory provisions of Order 21 Rules 84, and 85 CPC by the auction purchaser vitiates the sale. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gas Point Petroleum India Limited Vs Rajendra Marothi and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 619 of 2023 decided on 10 February 2023<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice C.T. Ravikumar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The facts leading to the present appeal in a nutshell are as under: ­ </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.1 There was a dispute between National Ginni Enterprises and Smt. Gayatri Agrawal with respect to the L.P.G. gas agreement. A civil suit No. 07­A/98 was filed by the said Smt. Gayatri Agrawal against the National Ginni Enterprises. The learned Trial Court passed a decree by directing the judgment debtor (National Ginni Enterprises) to provide L.P.G. gas as per the conditions of the agreement. The decree provided that if the defendants are unable to implement the said order, in alternatively it was directed that the plaintiff was entitled to get the amount of Rs. 2,38,450/­ + Rs. 23,500/­ (sic) relating to cost of the gas cylinders and regulators respectively. The judgment debtor did not fulfill the first portion of the order and did not supply the gas cylinders and regulators. Therefore, the decree holder filed the execution petition before the Executing Court. It was decided to sell the property of the judgment debtor. Accordingly, a declaration was made and property was auctioned and sold on 03.11.2011 in favour of respondent No. 1 herein. The appellant herein – original respondent No. 1 filed objection before the Executing Court, contending, inter­alia, that the property was purchased by him from judgment debtor on 31.08.1999 and that they are in possession of the said land. An application under Order 21 Rule 90 r/w 151 of the CPC was filed. The learned Executing Court overruled the objections and rejected the application under Order 21 Rule 90 by order dated 23.01.2013. The appellant flied miscellaneous civil appeal before the Court of Additional District Judge, Damoh being Misc. Civil Appeal No. 12/2013. The lower Appellate Court allowed the said appeal and set aside the order of Executing Court dated 23.01.2013 and remitted the matter back to the Executing Court to rehear the parties and after taking into account all the facts and circumstances, pass a fresh order in accordance with law. The order passed by the lower Appellate Court was the subject matter before the High Court by way of present writ petition. By the impugned judgment and order the High Court has allowed the said writ petition and has set aside the order passed by the lower Appellate Court by observing that the appellant herein – original respondent No. 1 has failed to plead and establish the nature of irregularity or fraud committed in sale and therefore, no fault can be found in the order of the Executing Court. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7.1 In the year 1998, the decree holder filed a suit for specific performance of the L.P.G. gas agreement; </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7.2 The civil suit was not with respect to the property in question. An interim injunction application was filed by the original plaintiff. It was apprehended that the defendants were trying to leave Damoh after selling and transferring their firm, namely, National Gini Enterprises, to any other person. The application was filed under Order 38 CPC as well as for permanent injunction. By order dated 18.05.1999 the learned Trial Court directed to maintain status quo. The learned Trial Court also directed that if the defendants transfer their firm Ginni Enterprises to any other person then they would not transfer the same against the interest of the plaintiff. That thereafter the decree came to be passed on 30.09.1999 directing the defendants – judgment debtor – Ginni Enterprises to supply LPG gas and in the alternative to pay 2,38,450/­ + Rs. 23,500/­ (sic). As the decree was not executed the decree holder filed the execution proceeding. In the execution proceeding the property in question was put to auction for recovery of Rs. 2,38,450/­ + Rs. 23,500/­ (sic). The property was put to auction on 18.10.2011. The auction purchaser – respondent No. 1 herein deposited 25% of the amount on 03.11.2011 and deposited balance 75% of the amount on 04.11.2011. In light of above factual scenario, submissions on behalf of the respective parties, more particularly, submission on behalf of the appellant on non­compliance of Order 21 Rules 64, 84 and 85 are required to be considered. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7.5 As per Order 21 Rule 85, the full amount of purchasemoney payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property. Thus, as per the aforesaid provisions, the purchaser has to deposit 25% of the sale amount immediately on declaring to be the purchaser and the full amount of the purchase­money shall have to be paid by the purchaser into the Court before the Court closes on fifteenth day from the sale of the property. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7.6 In the present case admittedly the purchaser – respondent No. 1 deposited 25% of the amount on 03.11.2011 and did not deposit 25% of the amount as required under Order 21 Rule 84 immediately. The auction purchaser was required to deposit 25% of the amount the day on which he was declared purchaser i.e., 18.10.2011. Even the balance 75% of the amount has not been deposited as required under Order 21 Rule 85. The full amount of the purchase­money in the present case has been deposited on 04.11.2011 i.e., after the period prescribed/provided under Order 21 Rule </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">85. Therefore, there is non­compliance of Order 21 Rule 84 and Rule 85 of CPC. </span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8.1 In the case of Manilal Mohanlal Shah (supra), it is observed and held that the provision regarding the deposit of 25% of the amount by the purchaser other than the decree­holder is mandatory and the full amount of the purchase money must be paid within fifteen days from the date of the sale. It is further observed and held that if the payment is not made within the period of fifteen days, the Court has the discretion to forfeit the deposit, and there the discretion ends but the obligation of the Court to resell the property is imperative. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8.3 Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, it is evident that there is non­compliance of mandatory provisions of Order 21 Rule 84 and Order 21 Rule 85 and therefore, the sale was vitiated. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. Even otherwise, it is required to be noted that the appellant herein purchased the property in question much before the auction of the property i.e., 31.08.1999. At the relevant time the property in question was not the subject matter of suit. As observed hereinabove, the subject matter of suit was specific performance of the L.P.G. gas agreement and even the ad­interim injunction dated 18.05.1999 was also against the transfer of firm Ginni Enterprises to any other person and the defendants were directed to maintain status quo with respect to their firm Ginni Enterprises. Therefore, at the time when the property in question was put to auction on 18.10.2011 the appellant had already purchased the said property as far as back on 31.08.1999 as there was no injunction with respect to the said property while ad­interim injunction dated 18.05.1999 and as observed hereinabove, the property in question was not the subject matter of suit and the decree came to be passed on 30.09.1999 and the property was put to auction in the year 2011 for recovery of sum of Rs. 2,38,450/­ + Rs. 23,500/­ (sic). The adinterim injunction dated 18.05.1999 cannot be pressed into service against the appellant. Therefore, the High Court has committed an error in considering injunction dated 18.05.1999 against the appellant. Therefore, at the time when the property was put to auction on 18.10.2011, the judgment debtor was not the owner and therefore, the same could not have been put to auction. Under the circumstances, learned Executing Court erred in overruling the objections raised by the appellant against the auction/sale of the property which the appellant purchased much prior to the date of the auction i.e., on 31.08.1999. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10. In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court deserves to be quashed and set aside and is accordingly quashed and set aside and consequently the order passed by the Executing Court overruling the objections raised by the appellant also deserves to be quashed and set aside and is quashed and set aside. The order passed by the lower Appellate Court is hereby restored. It will be open for respondent No. 1 to get back the amount deposited by him, lying with the Executing Court. Present appeal is accordingly allowed. In the facts and circumstance of the case there shall be no order as to costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b2e99b3324918d50a697e54eecada16f.jpeg', 'e7e308f257ba07a4a3a64ebce5eb0b19.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-14', 1, '', '', '2023-02-13 13:01:37', '2023-02-14 06:45:52'),
(617, 'hlVg29qc7Y1c6GpH0ze97wjih', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Representation of the People Act 1951. Election to Council of States-Rajya Sabha-can NOT be challenged by an ordinary voter unless he is a candidate or member of the electoral college. Karnataka High Court. 18 February 2021', '<h4>Ravi Shivappa Padasalagi@Savadi vs Iranna Kadadi and another. </h4><h4>Election Petition 1 of 2020 decided on 18 February 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/373383/1/EP1-20-18-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/373383/1/EP1-20-18-02-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: Respondent No.1 has filed IA No.3/2020 under Section 81 of the Representation of the People Act, 1951 read with Order VII Rule 11 of the Code of Civil Procedure, 1908 seeking rejection of election petition on the ground of maintainability and bar of limitation.</h4><h4><span style=\"font-size: 1.3125rem;\">3. </span><span style=\"font-size: 1.3125rem;\">The above petition is filed under Section 81 read with Section 100(1)(d)(iv) of the RP Act to set </span>aside the election of respondent No.1 dated 12.06.2020 as member of the Council of States.</h4><h4>12. Having regard to the rival contentions, the question that arises for consideration is:</h4><h4>“whether the petitioner is an elector under Section 2(e), Explanation to Section 81 and Section 152 of the RP Act to elect a member of Council of States?” </h4><h4>13. The ground of seeking preliminary issue and the rejection of the petition are one and the same. It is settled proposition of law that a petition can be rejected invoking Order VII Rule 11 of CPC, if petition does not disclose cause of action or under-valued or insufficiently stamped or barred by law. The rejection in the case on hand is sought under Order VII Rule 11(d) of CPC which deals with a plaint/petition being barred by law.</h4><h4>16. Admittedly as per Article 80(4) of the Constitution, the representative of each State in the Council of States shall be elected by the Elected Members of Legislative Assembly of the State in accordance with the system of proportional representation by means of single transferable vote. Thus it is clear that the members of Council of State have to be elected by elected members of the State Legislative Assembly.</h4><h4>17. The perusal of Section 81 makes it clear that the election can be challenged only by an elector. The term elector is defined in Section 2(e) of RP Act as follows:</h4><h4>“2(e). “elector” in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950)”</h4><h4>18.Thus it becomes clear that elector in the case on hand is a person whose name is entered in the electoral role of the constituency. This term elector is further clarified by the Explanation to Section 81 of the RP Act stating that elector is a person who was entitled to vote at the election in question or the person who has voted in the such Election.</h4><h4>19.The petitioner does not dispute that the list of members of State Legislative Assembly and Electoral College have to be maintained by Returning Officer as prescribed under Section 152 of the RP Act. </h4><h4><span style=\"font-size: 1.3125rem;\">21. </span><span style=\"font-size: 1.3125rem;\">One has to be bear in mind that the RP Act 1951 is a Special Enactment and it has to be interpreted in accordance with its intent and spirit and not in a manner to offend or defeat the said law. If at all a member of Rajya Sabha was to be elected by a common voter as in case of member of House of People or Legislative Assembly, there would not have been any need to interpret the term “elector” in the manner it is interpreted in Section 2(e) of the RP Act and Explanation to Section 81 of the Act or to prescribe the mode of conducting the election under Article 80(4) of </span>the Constitution or mode of preparation of role of electors as per Section 152 of RP Act or as defined in Rule 2(d) of the Rules.</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">22.To call himself to be an elector, as per the above provisions, the contender must be entitled  to vote at the election. As per the scheme of the RP Act 1951, Rules made thereunder or Article 80(4) of the Constitution, the petitioner is not entitled to vote at election of the members of Council of States.</b></h4><h4>23. As per Section 81 of the RP Act, only a candidate or an elector can maintain the petition. The contention that the petitioner was the elector of the elected member of the Legislative Assembly, therefore he becomes the elector for the election of members of Council of States, for the purpose of Section 81,  Section 2(e), Section 152 of the RP Act and Article 80(4) of the Constitution is a far fetched idea. This Court is not persuaded to accept that contention. </h4><h4><span style=\"font-size: 1.3125rem;\">32. </span><span style=\"font-size: 1.3125rem;\">Since this Court has already held that the petition is barred by Section 81 R/w Section 2(e), Explanation to Section 81, Section 152 of the RP Act and Article 80(4) of the constitution, petition is liable to be rejected under Order VII Rule 11 of CPC.</span></h4><h4><b>The petition is rejected with costs of Rs.25,000/- payable to the Advocates’ Welfare Fund within one month from the date of this order.</b></h4><h4><br></h4>', 'a0cf3edf90b8273d44b12d7caa3eb6b0.jpg', 'c6a63f14de299b2a739c44b6104148f5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-18', 1, '', '', '2021-03-24 03:25:56', '2021-03-24 03:32:56'),
(618, 'MKW5Fsedc4yTIRG8DUzCa16EA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Limitation Act. Section 5. Though it is not mandatory to file application for condonation of delay no applicant or appellant can claim condonation of delay as of right without making an application giving sufficient cause. Supreme Court.  22:3:2021', '<h4>Sesh Nath Singh & another vs Baidyabati Sheoraphuli Co-Operative Bank Ltd and another.<br>Civil Appeal 9198 of 2019 decided on 22 March 2021.<br>Justice Indira Banerjee and Justice Hemant Gupta.<br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/43226/43226_2019_40_1501_27085_Judgement_22-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/43226/43226_2019_40_1501_27085_Judgement_22-Mar-2021.pdf</a><br>Relevant paragraphs: 57. The issues involved in this appeal are:-<br>(i) Whether delay beyond three years in filing an application under Section 7 of IBC can be condoned, in the absence of an application for condonation of delay made by the applicant under Section 5 of the Limitation Act, 1963?<br>(ii) Whether Section 14 of the Limitation Act, 1963 applies to applications under Section 7 of the IBC? If so, is the exclusion of time under Section 14 is available, only after the proceedings before the wrong forum terminate?<br>58. For the sake of convenience, and to avoid prolixity and unnecessary repetition, all the aforesaid issues are dealt with together. Section 238A of the IBC provides that the provisions of the Limitation Act shall, as far as may be, apply to proceedings before the Adjudicating Authority(NCLT) and the NCLAT.<br>59. It is well settled by a plethora of judgments of this Court as also different High Courts and, in particular, the judgment of this Court in B.K. Educational Services Private Limited v. Parag Gupta Associates and Ors. (supra) the NCLT/NCLAT has the discretion to entertain an application/appeal after the prescribed period of limitation. The condition precedent for exercise of such discretion is the existence of sufficient cause for not preferring the appeal and/or the application within the period prescribed by limitation. <br>61. The condition precedent for condonation of the delay in filing an application or appeal, is the existence of sufficient cause. Whether the explanation furnished for the delay would constitute ‘sufficient cause’ or not would dependent upon facts of each case. There cannot be any straight jacket formula for accepting or rejecting the explanation furnished by the applicant/appellant for the delay in taking steps. Acceptance of explanation furnished should be the rule and refusal an exception, when no negligence or inaction or want of bona fides can be imputed to the defaulting party.<br>63. Section 5 of the Limitation Act, 1963 does not speak of any application. The Section enables the Court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the Court that he had sufficient cause for not making the application and/or preferring the appeal, within the time prescribed. Although, it is the general practice to make a formal application under Section 5 of the Limitation Act, 1963, in order to enable the Court or Tribunal to weigh the sufficiency of the cause for the inability of the appellant/applicant to approach the Court/Tribunal within the time prescribed by limitation, there is no bar to exercise by the Court/Tribunal of its discretion to condone delay, in the absence of a formal application. <br><b style=\"background-color: rgb(255, 255, 0);\">64. A plain reading of Section 5 of the Limitation Act makes it amply clear that, it is not mandatory to file an application in writing before relief can be granted under the said section. Had such an application been mandatory, Section 5 of the Limitation Act would have expressly provided so. Section 5 would then have read that the Court might condone delay beyond the time prescribed by limitation for filing an application or appeal, if on consideration of the application of the appellant or the applicant, as the case may be, for condonation of delay, the Court is satisfied that the appellant/applicant had sufficient cause for not preferring the appeal or making the application within such period. Alternatively, a proviso or an Explanation would have been added to Section 5, requiring the appellant or the applicant, as the case may be, to make an application for condonation of delay. However, the Court can always insist that an application or an affidavit showing cause for the delay be filed. No applicant or appellant can claim condonation of delay under Section 5 of the Limitation Act as of right, without making an application.</b><br>68. We see no reason why Section 14 or 18 of the Limitation Act, 1963 should not apply to proceeding under Section 7 or Section 9 of the IBC. Of course, Section 18 of the Limitation Act is not attracted in this case, since the impugned order of the NCLAT does not proceed on the basis of any acknowledgment.<br>75. There can be little doubt that Section 14 applies to an application under Section 7 of the IBC. At the cost of repetition, it is reiterated that the IBC does not exclude the operation of Section 14 of the IBC. The question is whether prior proceedings under the SARFAESI Act do not qualify for the exclusion of time under Section 14, inasmuch as they are not civil proceedings in a Court, as argued by Mr. Dave.<br>87. In our view, since the proceedings in the High Court were still pending on the date of filing of the application under Section 7 of the IBC in the NCLT, the entire period after the initiation of proceedings under the SARFAESI Act could be excluded. If the period from the date of institution of the proceedings under the SARFAESI Act till the date of filing of the application under Section 7 of the IBC in the NCLT is excluded, the application in the NCLT is well within the limitation of three years. Even if the period between the date of the notice under Section 13(2) and date of the interim order of the High Court staying the proceedings under the SARFAESI Act, on the prima facie ground of want of jurisdiction is excluded, the proceedings under Section 7 of IBC are still within limitation of three years. <br>95. If, in the context of proceedings under Section 7 or 9 of the IBC, Section 14 were to be interpreted with rigid and pedantic adherence to its literal meaning, to hold that only civil proceedings in Court would enjoy exclusion, the result would be that an applicant would not even be entitled to exclusion of the period of time spent in bona fide invoking and diligently pursuing an earlier application under the same provision of IBC, for the same relief, before an Adjudicating Authority, lacking territorial jurisdiction This could not possibly have been the legislative intent.<br>101. In our considered view, keeping in mind the scope and ambit of proceedings under the IBC before the NCLT/NCLAT, the expression ‘Court’ in Section 14(2) would be deemed to be any forum for a civil proceeding including any Tribunal or any forum under the SARFAESI Act.<br>102. In any case, Section 5 and Section 14 of the Limitation Act are not mutually exclusive. Even in a case where Section 14 does not strictly apply, the principles of Section 14 can be invoked to grant relief to an applicant under Section 5 of the Limitation Act by purposively construing ‘sufficient cause’. It is well settled that omission to refer to the correct section of a statute does not vitiate an order. At the cost of repetition it is reiterated that delay can be condoned irrespective of whether there is any formal application, if there are sufficient materials on record disclosing sufficient cause for the delay.</h4><p><br></p>', '1117839093febaf0c22f537c782a9974.PNG', 'cda3ed26d551324a97b50f5df89465e3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-22', 1, '', '', '2021-03-24 17:34:47', '2021-03-24 17:37:28');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(619, '8AoM2W9Cr2m3o1UUtvjTFAzPg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act. Waiver of ineligibility of arbitrator under Section 12. In the absence of  an express agreement between parties claim cannot be barred by principles of waiver acquiescence and estoppel. Karnataka High Court. 25:2:2021 ', '<h4>JMC ATEPL Joint Venture vs Bangalore Metro Rail Corporation Limited. </h4><h4>Civil Miscellaneous Petition 7 of 2020 decided on 25 February 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/372664/1/CMP7-20-25-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/372664/1/CMP7-20-25-02-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: In this petition filed under Section 11(6) of  the  Arbitration and Conciliation Act, 1996, petitioner has sought for the following reliefs:</h4><h4>\"i) Allow the Petition by annulling  the  procedure adopted by the Respondent for the appointment of arbitrators under Clause 17.9 of the General Conditions of Contract Agreement dated June 28th, 2010. produced at Annexure-A.<br>ii) Appoint a new arbitral tribunal outside the panel of arbitrators maintained by the Respondent, in the matter of the dispute between the Petitioner and the Respondent.<br>Re: Point No.4:-<br>12(5) of the Act of 1996, which reads as under:<br></h4><h4 style=\"margin-left: 25px;\">\"12.<span style=\"white-space:pre\">	</span>Grounds for Challenge -<br>[5) Notwithstanding any prior agreement to the contrary, any person whose relationship, with  the parties or counsel or the subject-matter of the dispute, falls under any of the categories specified in the  Seventh Schedule shall be ineligible to be appointed as an arbitrator:<br>Provided that parties may, subsequent to disputes having arisen between them, waive the applicability of this sub-section by an  express agreement in writing\".</h4><h4>(iv) While dealing with Section 12(5) of the Act in TRF Ltd.’s case(supra), the Apex Court held as under:</h4><h4 style=\"margin-left: 25px;\">“ 12. Sub-section (5) of Section 12, on  which  immense stress has been laid by the learned counsel  for the appellant, as has been reproduced above, commences with a non-obstante clause. It categorically lays down that if a person whose relationship with the parties or the counsel or the subject matter of dispute falls under any of the categories specified in the  Seventh Schedule shall be ineligible to be appointed as an arbitrator. There is a qualifier which indicates that parties may, subsequent to the disputes arisen between them, waive the applicability by express agreement in writing. The qualifier finds place in the proviso  appended to sub-section (5) of Section 12. On a careful scrutiny of the proviso, it is discernible that there are fundamentally three components, namely, the parties can waive the applicability of the sub-section; the said waiver can only take place subsequent to dispute  having arisen between the parties; and such waiver must be by an express agreement in writing.”</h4><h4 style=\"\">11. Section 12(5) has been earlier dealt with in three Supreme Court judgments. In Voestalpine Schienen GmbH v. Delhi Metro Rail Corporation Ltd., (2017) 4 SCC 665, this Court went into the recommendations of the aforesaid Law Commission Report, and referred in great detail to  the  law  before  the  amendment  made in Section 12 and then held:</h4><h4 style=\"\">“23. It also cannot be denied that the Seventh Schedule is based on IBA guidelines which are clearly regarded  as a representation of international based practices and are based on statutes, case law and juristic  opinion from a cross-section on jurisdiction. It is  so mentioned  in the guidelines itself.” xxx xxx xxx “25. Section 12 has been amended with the objective to induce neutrality of arbitrators viz. their independence and impartiality. The amended provision is enacted to identify the “circumstances” which give rise to “justifiable doubts” about the independence or impartiality of the arbitrator.  If any of those circumstances as mentioned therein exists, it will give rise to justifiable apprehension of bias. The Fifth Schedule to the Act enumerates the grounds which may give rise to justifiable doubts of this nature. Likewise, the Seventh Schedule mentions those circumstances which would attract the provisions of  sub- section (5) of Section 12 and nullify any prior agreement to the contrary. In the context of this case, it is relevant to mention that only if an arbitrator is an employee, a consultant, an advisor or has any past or present business relationship with a party, he is rendered ineligible to act as an arbitrator. Likewise, that person is treated as incompetent to perform the role of arbitrator, who is a manager, director or part of the management or has a single controlling influence in an affiliate of one of the parties if the affiliate is directly involved in the matters in dispute in the arbitration. Likewise, persons who regularly advised the appointing party or affiliate of the appointing party are incapacitated. A comprehensive list is enumerated in Schedule 5 and Schedule 7 and admittedly the persons empanelled by the respondent are not covered by any  of the items in the said list.”</h4><h4 style=\"\">12.<span style=\"white-space:pre\">	</span>In HRD Corporation v. GAIL (India) Ltd., (2018) 12 SCC 471, this Court, after setting out the amendments made in Section 12 and the Fifth, Sixth, and Seventh Schedules to the Act, held as follows:<br>“12. After the 2016 Amendment Act, a dichotomy is made by the Act between persons who become “ineligible” to be appointed as arbitrators, and persons about whom justifiable doubts exist as to their independence or impartiality. Since ineligibility goes to the root of the appointment, Section 12(5) read with the Seventh Schedule makes it clear that if the arbitrator falls in any one of the categories specified in the Seventh Schedule, he becomes “ineligible” to act as arbitrator. Once he becomes ineligible, it is clear that, under Section 14(1) (a), he then becomes de  jure unable to perform his functions inasmuch as, in law, he is regarded as “ineligible”. In order  to  determine whether an arbitrator is de jure unable to perform his functions, it is not necessary to go to the Arbitral Tribunal under Section 13. Since such a person would lack inherent jurisdiction to proceed any further, an application may be filed under Section 14(2) to the  Court to decide on the termination of his/her  mandate on this ground. As opposed to this, in a  challenge  where grounds stated in the Fifth Schedule are disclosed, which give rise to justifiable doubts as to the arbitrator’s independence or impartiality,  such  doubts as to independence or impartiality have to be determined as a matter of fact in the facts of the particular   challenge   by   the    Arbitral    Tribunal under Section 13. If a challenge is not successful, and the Arbitral Tribunal decides that there are no justifiable doubts as to the independence or impartiality of the arbitrator/arbitrators, the Tribunal must then  continue the arbitral proceedings under Section 13(4) and make an award. It is only after such award is made, that the party challenging the arbitrator’s appointment on grounds contained in the Fifth Schedule may make an application for setting aside the arbitral award in accordance with Section 34 on the aforesaid grounds. It is clear, therefore, that any challenge contained in the Fifth Schedule against the appointment of Justice Doabia and Justice Lahoti cannot be gone into at this stage, but will be gone into only after the Arbitral Tribunal has given an award. Therefore, we express no opinion on items contained in the Fifth Schedule under which the appellant may challenge the appointment of either arbitrator. They will be free to do so only after an award is rendered by the Tribunal.” xxx xxx  xxx  “14. The enumeration of grounds given in the Fifth and Seventh Schedules have been taken from the IBA Guidelines, particularly from the Red and Orange Lists thereof. The aforesaid guidelines consist of three lists. The Red List, consisting of non-waivable and waivable guidelines, covers  situations  which  are  “more  serious” and “serious”, the “more serious” objections being non-waivable. The Orange List, on the other  hand, is a list of situations that may give rise to doubts as to the arbitrator’s impartiality or independence, as a consequence of which the arbitrator has a duty to disclose such situations. The Green List is a list of situations where no actual conflict of interest exists from an objective point of view, as a result of which the arbitrator has no duty of disclosure. These Guidelines were first introduced in the year 2004 and have thereafter been amended, after seeing the  experience of arbitration worldwide. In Part 1 thereof, general standards regarding impartiality, independence and disclosure are set out.” xxx xxx xxx “17. It will  be  noticed that Items 1 to 19 of the Fifth Schedule are identical with the aforesaid items in the Seventh Schedule. The only reason that these items also appear in the Fifth Schedule is for purposes of disclosure by   the arbitrator, as unless the proposed arbitrator discloses in writing his involvement in terms of Items 1  to 34 of the Fifth Schedule, such disclosure would be lacking, in which case the parties would be put at a disadvantage as such information is often within the personal knowledge of the arbitrator only. It is for this reason that it appears that Items 1 to 19 also appear in the Fifth Schedule.”<br>13. In TRF Ltd. (supra), this Court referred to Section 12(5) of the Act in the context of appointment of an arbitrator by a Managing Director of a corporation, who became ineligible to act as arbitrator under the Seventh Schedule. This Court held:<br>“50. First, we shall deal with Clause (d). There is no quarrel that by virtue of Section 12(5) of the Act, if any person who falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as the arbitrator. There is no doubt and cannot be, for the language employed in the Seventh Schedule, the Managing Director of the Corporation has become ineligible by operation of law. It is the stand of the learned Senior Counsel for the appellant that once the Managing Director becomes ineligible, he also becomes ineligible to nominate. Refuting  the  said stand, it is canvassed by the learned Senior Counsel for the respondent that the ineligibility cannot extend to a nominee if he is not from the Corporation and more so when there is apposite and requisite disclosure. We think it appropriate to make it clear that in the case at hand we are neither concerned with the disclosure nor objectivity nor impartiality nor any such other circumstance. We are singularly concerned with the issue, whether the Managing Director, after becoming ineligible by operation of law, is he still eligible to nominate an arbitrator. At the cost of repetition, we may state that when there are two parties, one  may nominate an arbitrator and the other may appoint another. That is altogether a different situation.  If there is a clause requiring the parties to nominate their respective arbitrator, their authority to nominate cannot be questioned. What really in that circumstance can be called in question is the procedural compliance and the eligibility of their arbitrator depending upon the norms provided under the Act and the Schedules appended thereto. But, here is a case where the Managing  Director is the “named sole arbitrator” and he has also been conferred with the power to nominate one  who can be the arbitrator in his place. <br>14. \r\nFrom a conspectus of the above decisions, it is clear that Section 12(1), as substituted by  the Arbitration and Conciliation (Amendment) Act, 2015 [“Amendment Act, 2015”], makes it clear that when a person is approached in connection with his possible appointment as an arbitrator, it is his duty to disclose in writing any circumstances which are likely to give rise to justifiable doubts as to his independence or impartiality. The disclosure is to be made in the form specified in the Sixth Schedule, and the grounds stated in the Fifth Schedule are to serve as a guide in determining  whether circumstances exist which give rise to  justifiable doubts as to the independence or impartiality of an arbitrator. Once this is done, the appointment of the arbitrator may be challenged on the ground that justifiable doubts  have  arisen  under  sub-section  (3)  of Section 12 subject to the caveat entered by sub- section (4) of Section 12. The challenge procedure is then set out in Section 13, together with the time limit laid down in Section 13(2).What is important to note is that the arbitral tribunal must first decide on the said challenge, and if it is not successful, the tribunal shall continue the proceedings and make an award. It is only post award that the party challenging the  appointment of an arbitrator may make an application for setting aside such an award in accordance with Section 34 of the Act.<br>15. Section 12(5), on the other hand, is a new provision which relates to the de jure inability of an arbitrator  to act as such. Under this provision, any prior agreement  to the contrary is wiped out by the non- obstante clause in Section 12(5) the moment any person whose relationship with the parties or the counsel or the  subject matter of the dispute falls under the Seventh Schedule. The sub-section then declares that such person shall be “ineligible” to be appointed as arbitrator. The only way in which this ineligibility can be removed  is by the proviso, which again is a special provision which states that parties may, subsequent to disputes having arisen between  them,  waive  the  applicability  of Section 12(5) by an express agreement in writing. What is clear, therefore, is that where, under any agreement between the parties, a person falls  within any of the categories set out in the Seventh Schedule, he is, as a matter of law, ineligible to be appointed as  an arbitrator. The only way in which this ineligibility can be removed, again, in law, is that parties may after disputes have arisen between them, waive the applicability of this sub-section by an “express agreement in writing”. Obviously, the “express agreement in writing” has reference to a person who is interdicted by the Seventh Schedule, but who is stated by parties (after the disputes have arisen between  them) to be a person in whom they have faith notwithstanding the fact that such person is interdicted by the Seventh Schedule.<br>16. The Law Commission Report, which has been extensively referred to in some of our  judgments,  makes it clear that there are certain minimum levels of independence and impartiality that should be required  of the arbitral process, regardless of the parties’ agreement. This being the case, the Law Commission then found:<br>“59. The Commission has proposed the requirement of having specific disclosures by the arbitrator, at the  stage of his possible appointment, regarding existence of any relationship or interest of any kind which is likely to give rise to justifiable doubts. The Commission has proposed the incorporation of the Fourth Schedule, which has drawn from the Red and Orange lists of the IBA Guidelines on Conflicts of Interest in International Arbitration, and which would be treated as a “guide” to determine whether circumstances exist which give rise to such justifiable doubts. On the other hand, in terms   of the proposed section 12 (5) of the Act and the Fifth Schedule which incorporates the categories from the Red list of the IBA Guidelines (as above), the person proposed to be appointed as an arbitrator shall be ineligible to be so appointed, notwithstanding any prior agreement to the contrary. In the event such an ineligible person is purported to be appointed as an arbitrator, he shall be de jure deemed to be unable to perform his functions, in terms of the proposed explanation to section 14. Therefore, while the disclosure is required with respect to a broader list of categories (as set out in the Fourth Schedule, and as based on the Red and Orange lists of the IBA Guidelines), the ineligibility to be appointed as an arbitrator (and the consequent de jure inability to so act) follows from a smaller and more serious sub-set of situations (as set out in the Fifth Schedule, and as  based on the Red list of the IBA Guidelines).<br>60. The Commission, however, feels that real and genuine party autonomy must be respected, and, in certain situations, parties should be allowed to waive even the categories of ineligibility as set  in  the proposed Fifth Schedule. This could be in situations of family arbitrations or other arbitrations where a person commands the blind faith and trust of the parties to the dispute, despite the existence of objective “justifiable doubts” regarding his independence and impartiality. To deal with such situations, the Commission has  proposed the proviso to section 12 (5), where parties may, subsequent to disputes having arisen between them, waive the applicability  of  the  proposed section 12 (5) by an express agreement in writing. In all other cases, the general rule in the proposed section 12 (5) must be followed. In the event the High Court is approached in connection with appointment of an arbitrator, the Commission has proposed seeking the disclosure in terms of section 12 (1), and in which context the High Court or the designate is to have “due regard” to the contents of such disclosure in appointing the arbitrator.” (emphasis in original) Thus, it will  be seen that party autonomy is to be respected only in certain exceptional situations which could be situations which arise in family arbitrations or other arbitrations where a person subjectively commands blind faith and trust of the parties to the dispute, despite the existence of objective justifiable doubts regarding his independence and impartiality.<br>17. The scheme of Sections 12, 13, and 14, therefore,  is that where an arbitrator makes a disclosure in writing which is likely to give justifiable doubts as to his independence or impartiality, the appointment of such arbitrator   may   be   challenged   under Sections    12(1) to 12(4) read with Section 13. However, where such person becomes “ineligible” to be appointed as an arbitrator, there is no question of challenge to such arbitrator, before such arbitrator. In such a case, i.e., a case  which  falls  under Section   12(5), Section 14(1)(a) of the Act gets attracted inasmuch as the arbitrator becomes, as a matter of law (i.e., de jure), unable to perform his functions under Section 12(5), being ineligible to be appointed as an arbitrator. This being so, his mandate automatically terminates, and he shall  then  be  substituted   by   another   arbitrator under Section 14(1) itself. It is only if a controversy occurs concerning whether he has become de jure unable to perform his functions as such, that a party   has to apply to the Court to decide on the termination of the mandate, unless otherwise agreed by the parties. Thus, in all Section 12(5) cases, there is no challenge procedure to be availed of. If an arbitrator continues as such, being de jure unable to perform his functions, as he   falls   within   any   of   the categories    mentioned in Section 12(5), read with the Seventh Schedule, a party may apply to the Court, which will then decide on whether his mandate has terminated. Questions which may typically arise under Section 14 may be as to whether such person falls within any of the categories mentioned in the Seventh Schedule, or whether there is a waiver as provided in the proviso to Section 12(5) of the Act. As a matter of law, it is important to  note that the  proviso  to Section  12(5) must  be   contrasted   with Section 4 of the Act. Section 4 deals with cases of deemed  waiver  by  conduct;   whereas   the   proviso  to Section 12(5) deals with waiver by express  agreement in writing between the parties only if made subsequent to disputes having arisen between them. <br>18. On the facts of the present case, it is clear that the Managing Director of the appellant could not  have  acted as an arbitrator himself, being rendered ineligible to act as arbitrator under Item 5 of the Seventh Schedule, which reads as under:<br>“Arbitrator’s relationship with the parties or counsel xxx xxx xxx<br>5. The arbitrator is a manager, director or part of the management, or has a similar controlling influence,  in an affiliate of one of the parties if the affiliate is directly involved  in  the  matters   in   dispute   in   the arbitration” Whether such ineligible person  could  himself appoint another arbitrator was only made clear by this Court’s judgment in TRF Ltd. (supra) on 03.07.2017, this Court holding that an appointment made by an ineligible person is itself void ab initio.  Thus, it was only on 03.07.2017, that it became clear beyond doubt that the appointment of Shri Khan would be void ab initio. Since such appointment goes to “eligibility”, i.e., to the root of the matter,  it is obvious that Shri  Khan’s appointment would be void. There is  no doubt in this case that disputes arose only after the introduction of Section 12(5) into the statute book, and Shri Khan was appointed long after 23.10.2015. The judgment in TRF Ltd.(supra) nowhere states that it will apply only prospectively, i.e., the appointments that  have been made of persons such as Shri Khan would be  valid  if   made   before   the   date   of   the judgment. Section 26 of the Amendment Act, 2015 makes it clear that the Amendment Act, 2015  shall apply in relation to arbitral proceedings commenced on or after 23.10.2015. Indeed, the judgment itself set  aside the order appointing the arbitrator, which was an order dated 27.01.2016, by which the  Managing Director of the respondent nominated a former Judge of this Court as sole arbitrator in terms of clause 33(d) of the Purchase Order dated 10.05.2014. It will be noticed that the facts in the present case are somewhat similar. The APO itself is of the year 2014, whereas the appointment  by  the   Managing   Director   is   after   the Amendment Act, 2015, just as in the case of TRF Ltd. (supra). Considering that the appointment in the case of TRF Ltd. (supra) of a retired Judge of this Court was set aside as being non-est in law, the appointment of Shri Khan in the present case must follow suit.<br>19. However, the learned Senior Advocate  appearing on behalf of the respondent has argued that Section 12(4) would bar the appellant’s application before the Court. Section 12(4) will only apply when a challenge is made to an arbitrator, inter alia, by the same party who has appointed such arbitrator. This then refers to the challenge  procedure  set  out  in Section  13 of   the  Act. Section 12(4) has no applicability to an application made to the Court under Section 14(2) to determine whether the mandate of an arbitrator has terminated as he has, in law, become unable to perform his functions because he is ineligible to  be  appointed  as  such under Section 12(5) of the Act.<br>20. This then brings us to the applicability of the proviso to Section   12(5) on   the   facts    of    this    case. Unlike Section 4 of the Act which deals with deemed waiver of the right  to  object  by  conduct,  the  proviso to Section 12(5) will only apply if subsequent  to  disputes having arisen between the parties, the parties waive  the  applicability  of  sub-section (5)  of Section 12 by an express agreement in writing. For this reason, the argument based on the analogy of Section 7 of the Act must also be rejected. Section 7 deals with arbitration agreements that must be in writing, and then explains that such agreements may be contained in documents which provide a record of such agreements. On the other hand, Section 12(5) refers to an “express agreement in writing”. The expression “express agreement in writing” refers to an agreement made in words as opposed to an agreement which is to be inferred by conduct. Here, Section 9 of the Indian Contract Act, 1872 becomes important. It states:<br>“9. Promises, express and implied.—In so far as a proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied.” It is thus necessary that there be an “express” agreement in writing.<br>This agreement must be an agreement by which both parties, with full knowledge of the fact that Shri Khan is ineligible to be appointed as an arbitrator, still go ahead and say that they have full faith and confidence in him  to continue as such. The facts of the present case disclose no such express agreement. The appointment letter which is relied upon by the High Court as indicating an express agreement on the facts of  the case is  dated  17.01.2017.  On  this  date,  the Managing Director of the appellant was certainly not aware that Shri  Khan could not be appointed by him    as Section 12(5) read with the Seventh Schedule only went to the invalidity of the appointment of  the Managing Director himself as an arbitrator. Shri Khan’s invalid appointment only became clear after the declaration of the law by the Supreme Court in TRF Ltd. (supra) which, as we have seen hereinabove, was only on 03.07.2017. After this date, far from there being an express agreement between the parties as to the  validity of Shri Khan’s appointment, the appellant filed  an application on 07.10.2017 before the sole arbitrator, bringing the arbitrator’s attention to the judgment  in  TRF Ltd. (supra) and asking him to declare that he has become de jure incapable of acting as an arbitrator. Equally, the fact that a statement of claim may have been filed before the arbitrator, would not mean that there is an express agreement in words which would make it clear that both parties wish Shri Khan to continue as arbitrator despite being ineligible to act as such. This being the case, the impugned judgment is  not correct when it applies Section 4, Section 7, Section 12(4), Section 13(2), and Section 16(2) of the Act to the facts of the present case, and goes on to state that the appellant cannot be allowed to raise the issue of eligibility of an arbitrator, having itself appointed the arbitrator. The judgment under appeal is also incorrect  in stating that there is an express waiver in writing from the fact that an appointment letter has been issued by the appellant, and a statement of claim has been filed  by the respondent before the arbitrator. The  moment the appellant came to know that Shri Khan’s appointment itself would be invalid, it filed  an  application before the sole arbitrator for termination of his mandate.<br>21.<span style=\"white-space:pre\">	</span>The learned Additional Solicitor General appearing on behalf of the appellant has relied upon All India Power Engineer Federation v. Sasan  Power  Ltd., (2017) 1 SCC 487, and referred to paragraph 21  thereof, which reads as follows:<br>“21. Regard being had to the aforesaid decisions, it is clear that when waiver is spoken of in the realm of contract, Section 63 of the Contract Act, 1872 governs.<br>But it is important to note that waiver is an intentional relinquishment of a known right, and that, therefore, unless there is a clear intention to relinquish a right that is fully known to a party, a party cannot be said to waive it. But the matter does not end here. It is also clear that  if any element of public interest is involved and a waiver takes place by one of the parties to an agreement, such waiver will not be given effect to if it is contrary to such public interest. This is clear from a reading of the following authorities.” This judgment cannot possibly apply as the present case is governed by the express language of the proviso to Section 12(5) of the Act. Similarly, the judgments relied upon by the learned Senior Advocate appearing on behalf  of  the respondent, namely, Vasu P. Shetty v. Hotel Vandana Palace, (2014) 5 SCC 660, and BSNL v. Motorola India<br>(P) Ltd., (2009) 2 SCC 337 [“BSNL”], for the same reason, cannot be said to have any application to the express language of the proviso to Section 12(5).  It  may be noted that BSNL (supra) deals with Section 4 of the Act which, as has been stated hereinabove, has no application, and must be contrasted with the language  of the proviso to Section 12(5).<br><b style=\"background-color: rgb(255, 255, 0);\">(v) In the facts of the instant case, it is not in dispute  that there is no express Agreement entered into between the petitioner and respondent whereby both of them have waived the applicability of Section 12(5) of the Act subsequent to arising of disputes between them; Consequently, as held by the Apex Court in the aforesaid decisions, in the absence of  an express agreement between the petitioner and the respondent subsequent to arising of disputes whereby the parties expressly agreed to waive the applicability of Section 12(5) of the Act, it cannot be said that the claim of the petitioner is barred by the principles of waiver, acquiescence and estoppel and the contention of the respondent in this regard deserves to be rejected.<br>Point No.4 is answered accordingly.</b><br><br></h4>', 'af2d2336d71cb9ad21af261365166ad6.jpg', 'e064bfbeda2a63ca4809ec174fefa329.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-25', 1, '', '', '2021-03-24 20:14:39', '2021-03-24 20:42:04'),
(620, 'a0si6Vak9Zptt4JfkzJ6gWFKB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Limitation Act. Article 65-b. Recovery of possession when mortgagee sells the property mortgaged. The Article does NOT apply when the property is sold under a statute. Karnataka High Court. 8 March 2021', '<h4>The Karnataka Agricultural Imlements and Allied Co-operative Society Ltd vs Karnataka State Financial Corporation. </h4><h4>Regular First Appeal 10095 of 2015 decided on 8 March 2021.</h4><h4>Justice Sreenivas Harish Kumar and Justice P.N.Desai</h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/373891/1/RFA100095-15-08-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/373891/1/RFA100095-15-08-03-2021.pdf </a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 26. Article 61 (b) is applicable in a situation where the mortgagor brings a suit for possession of the mortgaged immovable property if the mortgagee transfers the mortgaged property for valuable consideration. Limitation prescribed is 12 years from the date when the transfer becomes known to the plaintiff. What this Article contemplates is that the mortgagee should have sold the immovable property to a third party for valuable consideration exceeding his limit. In other words, in case where possession of immovable property is  delivered to  the mortgagee reserving the right of redemption, if the mortgagee, before the expiry of the redemption  period, sells the property for a valuable consideration, the possession of the property with the transferee becomes unlawful and thereby the mortgagor gets a  right  to recover possession. But the case on hand is though of a mortgage between the plaintiff and  the  first  defendant, the position is slightly  different, the  first defendant being a statutory authority can initiate action u/s 29 of the Act and take over possession. So long as the action u/s 29 is  not taken, the possession remains with the mortgagor and once the action is taken, according to sub section (2) of  Sec. 29, the transfer made according to sub section (1 ) shall vest in the  transferee all rights over the  property as  if the transfer had been made by the owner  of  the property.  That means, the  first defendant is  deemed to  be the owner. Secondly, <b style=\"background-color: rgb(255, 255, 0);\">when  a  statute  confers a  right on a financial corporation to proceed in respect of the property for recovering the outstanding dues, any action taken cannot be brought within the ambit of  the  transfer  as envisaged in Article 61 ( b) of the Limitation Act as it is  a transfer in invitum or by operation of law. </b><br>The appeal deserves to be dismissed with costs. Ordered accordingly.<br><br><br>SD/- JUDGE<br><br><br>SD/- JUDGE<br>Bvv/ CLK</h4><div><br></div>', '5498944d85423caaf2f2718c06ff39e0.PNG', '339a30534b71aedf9fe21d2b772428f5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-08', 1, '', '', '2021-03-25 01:53:11', '2021-03-25 01:58:12'),
(621, 'D4Szilkp1W5WLoR5CQcPN1Ep0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Government pleaders. Appointment and removal. Doctrine of pleasure is not absolute. Unceremonious removal of Government pleaders on political dictates is illegal. Karnataka High Court. 18 February  2021', '<h4>L.N. Narasimhamurthy and others vs State of Karnataka and others. </h4><h4>Writ Petition 47687 of 2018 decided on 18 February 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/373382/1/WP47687-18-18-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/373382/1/WP47687-18-18-02-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 13.As the Doctrine of Pleasure that is invoked to remove the pleaders is not absolute. Non-arbitrariness is that golden thread that runs through the entire fabric  of the Constitution through which every bead of state action should pass. On this principle, if  the  case  at  hand is noticed, it would lead to an unmistakable conclusion that the removal of pleaders on invocation of Doctrine of Pleasure was not free from  arbitrariness. The Constitution Bench of the Apex Court in the case of B.P.Singhal Vs. Union  of  India  reported in (2010)  6 SCC 331 while elucidating and elaborating the Doctrine of Pleasure comparing it to the Doctrine of Pleasure under the queen has held as follows:</h4><h4 style=\"margin-left: 25px;\">“(ii) Scope of doctrine of pleasure notice or hearing to the person removed, and without any obligation to assign any  reasons or disclose any cause for the removal, or withdrawal of pleasure. The withdrawal of pleasure cannot be at the sweet will,  whim  and fancy of the authority, but can only be for valid reasons.”</h4><h4>In the light of the law laid down by the Constitution Bench (supra), the action of the State in  unceremoniously removing the pleaders on political dictates is contrary to law.<br>14. Arbitrariness in State action is not an area which is untravelled. The Apex Court right from the judgment in the case of Shrilekha Vidyarthi (Kumari) v. State of U.P., reported in (1991) 1 SCC 212 till this day, has expounded the widening horizons of arbitrariness in State action. Shrilekha Vidyarthi insofar as they are germane to the lis are  quoted  and they read as follows:<br></h4><h4 style=\"margin-left: 25px;\">18. The scope of judicial review permissible in the present case, does not require any elaborate consideration since even the minimum permitted scope of judicial review on the ground of arbitrariness or unreasonableness or irrationality, once Article<br>14 is attracted, is sufficient to  invalidate the impugned circular as indicated later. </h4><h4 style=\"\">ORDER<br>(i) Writ Petitions are allowed in part.<br>(ii) The impugned orders though are held to be unsustainable, in the peculiar facts of the case they are not quashed, as the petitioners today are not entitled to continue as pleaders as their term is now over.<br>(iii) The petitioners would be entitled to a cost of Rs.100/- each from the hands  of  the  State for the arbitrary action of removing them.<br><br><br><br></h4>', 'ca395302ddbfa2b38207f45a657115af.jpg', 'e4b19b95844cf2b56fe1cf24a4cca2ad.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-18', 1, '', '', '2021-03-25 02:46:28', '2021-03-25 03:03:22'),
(622, 'xkUM4SZiNAxZ6qxx5PAEfpCX9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service law. Acquittal in respect of a heinous or serious crime based on benefit of reasonable doubt cannot make the candidate eligible. Supreme Court. 24 March 2021', '<h4>The State of Rajasthan and Others vs Love Kush Meena. Civil Appeal 3894 of 2020 decided on 24 March 2021. Justice Sanjay Kishan Kaul and Justice R. Subhash Reddy. Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/46786/46786_2019_38_1501_27192_Judgement_24-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/46786/46786_2019_38_1501_27192_Judgement_24-Mar-2021.pdf</a></h4><h4>1. The moot point which arises for consideration is whether a benefit of doubt resulting in acquittal of the respondent in a case charged under Sections 302,323,341/34 of the Indian Penal Code [IPC] can create an opportunity for the respondent to join as a constable in the Rajasthan Police service.</h4><h4>23. Examining the controversy in the present case in the conspectus of the aforesaid legal position, what is important to note is the fact that the view of this Court has depended on the nature of offence charged and the result of the same. The mere fact of an acquittal would not suffice but rather it would depend on whether it is a clean acquittal based on total absence of evidence or in the criminal jurisprudence requiring the case to be proved beyond reasonable doubt, that parameter having not been met, benefit of doubt has been granted to the accused. No doubt, in that facts of the present case, the person who ran the tractor over the deceased lady was one of the other co-accused but the role assigned to the others including the respondent herein was not of a mere bystander or being present at site. The attack with knives was alleged against all the other co-accused including the respondent.<br>24. We may also notice this is a clear case where the endeavour was to settle the dispute, albeit not with the job in mind. This is obvious from the recital in the judgment of the Trial Court that the compoundable offences were first compounded during trial but since the offence under Section 302/34 IPC could not be compounded, the Trial Court continued and qua those offences the witnesses turned hostile. We are of the view that this can hardly fall under the category of a clean acquittal and the Judge was thus right in using the terminology of benefit of doubt in respect of such acquittal.<br><span style=\"background-color: rgb(255, 255, 0);\"><b>25. The judgment in Avtar Singh v. Union of India &amp; Ors (2016) 8 SCC 471&nbsp;on the relevant parameter extracted aforesaid clearly stipulates that where in respect of a heinous or serious nature of crime the acquittal is based on a benefit of reasonable doubt, that cannot make the candidate eligible.</b></span><br>26. We may also note the submission of learned counsel for the respondent that as per para 38.3 in Avtar Singh’s case (supra), the employer has to take into consideration the Government orders/instructions/rules applicable to the employee at the time of taking a decision. It is her say that the issue whether the circular dated 28.03.2017 would apply or not was res integra in view of the earlier order of the learned Judge dated 14.05.2018. She has further contended that, in any case, the circular had come into force and as per the judgment in Avtar Singh’s case (supra) para 38.4, it is the date of decision which is material and as on the date of decision dated 23.05.2017, the said circular was applicable.<br>27. We may note here that the circular dated 28.03.2017 is undoubtedly very wide in its application. It seeks to give the benefit to candidates including those acquitted by the Court by giving benefit of doubt. However, such circular has to be read in the context of the judicial pronouncements and when this Court has repeatedly opined that giving benefit of doubt would not entitle candidate<br>for appointment, despite the circular, the impugned decision of the competent authority dated 23.05.2017 cannot be said to suffer from infirmity as being in violation of the circular when it is in conformity with the law laid down by this Court.<br>28. We are, thus, of the view that the impugned orders cannot be sustained and the appellants are well within their rights to have issued the order dated 23.05.2017.<br>29. The consequence is that the appeal is allowed and the impugned judgment of the Division Bench dated 16.07.2019 and learned Single Judge dated 14.05.2018 are set aside leaving the parties to bear their own costs.<br><br></h4>', '28124d9f07a31adf44bfedcb6edd2530.PNG', 'e6ee32df1621532eaade4b40bb01884d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-24', 1, '', '', '2021-03-25 03:41:17', '2021-03-25 03:41:17'),
(623, 'LceGRrIGrjSceM5IB5pHImBuJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Offences relating to corruption. Enquiry at pre-FIR stage is permissible and desirable where allegations are of corrupt practice acquiring assets disproportionate to known sources of income. Supreme Court. 24 March 2021', '<h4>Charansingh vs State of Maharashtra and others. </h4><h4>Criminal Appeal 363 of 2021 decided on 24 March 2021.</h4><h4> Justice Dr. Dhananjaya Y. Chandrachud and Justice M.R. Shah. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/28134/28134_2020_35_1501_27143_Judgement_24-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/28134/28134_2020_35_1501_27143_Judgement_24-Mar-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 9. In the context of offences relating to corruption, in paragraph 117 in Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1., this Court also took note of the decision of this Court in the case of P. Sirajuddin v. State of Madras (1970) 1 SCC 595 in which case this Court expressed the need for a preliminary enquiry before proceeding against public servants. While expressing the need for a preliminary enquiry before proceeding against public servants who are charged with the allegationof corruption, it is observed in the case of P. Sirajuddin (supra) that<br></h4><h4 style=\"margin-left: 25px;\">“before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of indulging into corrupt practice and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person who is occupying the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to in general. If the Government had set up a Vigilance and Anti-Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department”. It is further observed that “when such an enquiry is to be held for the purpose of finding out whether criminal proceedings are to be initiated and the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the person against whom the allegations are made and documents bearing on the same to find out whether there is a prima facie evidence of guilt of the officer, thereafter, the ordinary law of the land must take its course and further enquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report”</h4><h4>9.1 Thus, an enquiry at pre-FIR stage is held to be permissible and not<br>only permissible but desirable, more particularly in cases where the<br>allegations are of misconduct of corrupt practice acquiring the<br>assets/properties disproportionate to his known sources of income. After<br>the enquiry/enquiry at pre-registration of FIR stage/preliminary enquiry,<br>if, on the basis of the material collected during such enquiry, it is found<br>that the complaint is vexatious and/or there is no substance at all in the<br>complaint, the FIR shall not be lodged. However, if the material<br>discloses prima facie a commission of the offence alleged, the FIR will<br>be lodged and the criminal proceedings will be put in motion and the<br>further investigation will be carried out in terms of the Code of Criminal<br>Procedure. Therefore, such a preliminary enquiry would be permissible<br>only to ascertain whether cognizable offence is disclosed or not and only<br>thereafter FIR would be registered. Therefore, such a preliminary<br>enquiry would be in the interest of the alleged accused also against<br>whom the complaint is made<br>9.2 Even as held by this Court in the case of Superintendent of Police,<br>CBI v. Tapan Kumar Singh (2003) 6 SCC 175, a GD entry recording the<br>information by the informant disclosing the commission of a cognizable<br>offence can be treated as FIR in a given case and the police has the<br>power and jurisdiction to investigate the same. However, in anappropriate case, such as allegations of misconduct of corrupt practice<br>by a public servant, before lodging the first information report and further<br>conducting the investigation, if the preliminary enquiry is conducted to<br>ascertain whether a cognizable offence is disclosed or not, no fault can<br>be found. Even at the stage of registering the FIR, what is required to be<br>considered is whether the information given discloses the commission of<br>a cognizable offence and the information so lodged must provide a basis<br>for the police officer to suspect the commission of a cognizable offence.<br>At this stage, it is enough if the police officer on the basis of the<br>information given suspects the commission of a cognizable offence, and<br>not that he must be convinced or satisfied that a cognizable offence has<br>been committed. Despite the proposition of law laid down by this Court<br>in catena of decisions that at the stage of lodging the first information<br>report, the police officer need not be satisfied or convinced that a<br>cognizable offence has been committed, considering the observations<br>made by this Court in the case of P. Sirajuddin (supra) and considering<br>the observations by this Court in the case of Lalita Kumari (supra) before<br>lodging the FIR, an enquiry is held and/or conducted after following the<br>procedure as per Maharashtra State Anti-corruption & Prohibition<br>Intelligence Bureau Manual, it cannot be said that the same is illegal<br>and/or the police officer, Anti-corruption Bureau has no jurisdiction and/orauthority and/or power at all to conduct such an enquiry at preregistration of FIR stage</h4>', 'f39052d546cee1decea2712e74b8d543.PNG', '37fe12713bb327074b8806f033388f58.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-24', 1, '', '', '2021-03-26 00:22:57', '2021-03-26 01:37:37');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(624, 'deCc75Bcs9FocLXJLU4tKEGMn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contract employees. Concept of one-­time measure in the light of judgment in Umadevi case explained. Supreme Court. 25 March 2021', '<h4>University of Delhi vs Delhi University Contract Employees Union and others. Civil Appeal 1007 of 2021 decided on 25 March 2021. Justice Uday Umesh Lalit and Justice K.M.Joseph. Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2017/14928/14928_2017_33_1501_27178_Judgement_25-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2017/14928/14928_2017_33_1501_27178_Judgement_25-Mar-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 7. The decision of the Constitution Bench of this Court in Umadevi1 was pronounced on 10.04.2006 by which time, the earliest contract employees had put in only 3-4 years of service and most of the contract employees were engaged after the decision in Secretary, State of Karnataka &amp; Ors. vs. Umadevi &amp; Ors., (2006) 4 SCC 1. In paragraphs 47, 49 and 53 of the decision in Umadevi, this Court stated:-</h4><h4 style=\"margin-left: 25px;\">“47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post...<br>49. It is contended that the State action in not regularising the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.<br>53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa8 , R.N. Nanjundappa9 and B.N. Nagarajan10 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such&nbsp;irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now<br>employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.”&nbsp;</h4><h4>8. The decision in Umadevi1 and other relevant decisions on the point were considered by a Bench of three Judges of this Court in Official Liquidator vs. Dayanand and others2. In that case, the decisions of the Calcutta High Court and the Delhi High Court were under challenge. The Single Judge of the Calcutta High Court had directed absorption of Group ‘C’ staff, which direction was affirmed by the Division Bench. Similarly, a Single Judge of the Delhi High Court had directed absorption of the writ petitioners in their appropriate scales with benefits such as fitment and promotions which directions were affirmed in appeal by the Division Bench. This Court accepted the challenge and set aside the directions issued by the Calcutta High Court and the Delhi High Court. During the course of its Judgment, this Court made following observations:-</h4><h4 style=\"margin-left: 25px;\">“52. … In this context, we may also mention that though the Official Liquidators appear to have issued advertisements for appointing the company-paid staff and made some sort of selection, more qualified and meritorious persons must have shunned from applying because they knew that the employment will be for a fixed term on fixed salary and their engagement will come to an end with the conclusion of liquidation proceedings. As a result of this, only mediocres must have responded to the advertisements and joined as company-paid staff. In this scenario, a direction for absorption of all the company-paid staff has to be treated as violative of the doctrine of equality enshrined in Articles 14 and 16 of the Constitution.<br>75. By virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in Umadevi1&nbsp;is binding on all the courts including this Court till the same is overruled by a larger Bench. The ratio of the Constitution Bench judgment has been followed by different two-Judge Benches for declining to entertain the claim of regularisation of service made by ad hoc/temporary/dailywage/casual employees or for reversing the orders of the High Court granting relief to such employees — Indian Drugs and Pharmaceuticals Ltd. v. Workmen11, Gangadhar Pillai v. Siemens Ltd.12, Kendriya Vidyalaya Sangathan v. L.V. Subramanyeswara13, Hindustan Aeronautics Ltd. v. Dan Bahadur Singh14. However, in U.P. SEB v. Pooran Chandra Pandey15 on which reliance has been placed by Shri Gupta, a two-Judge Bench has attempted to dilute the Constitution Bench judgment by suggesting that the said decision cannot be applied to a case where regularisation has been sought for in pursuance of Article 14 of the Constitution and that the same is in conflict with the judgment of the seven-Judge Bench in Maneka Gandhi v. Union of India16.”</h4><h4 style=\"\">The Judgment of a Bench of two Judges of this Court in Pooran Chandra Pandey16 was then found to be inconsistent with the law laid down by this Court in Umadevi1<br><br>9. All the decisions relied upon by Mr. Colin Gonsalves, learned Senior Advocate were by Benches of two Judges of this Court and in each of those cases, the concerned employees had put in more than 10 years of service and could claim benefit in terms of paragraph 53 of the decision in Umadevi1. In the last of those decisions i.e. in Narendra Kumar Tiwari7, the submission was that the employees had not put in more than 10 years of service with the newly created State of Jharkhand and, therefore, there was no entitlement in terms of the decision in Umadevi1. Relying on the concept of one-time measure elaborated in M.L. Kesari3, it was observed:-</h4><h4 style=\"margin-left: 25px;\">“3. The appellants had contended before the High Court that the State of Jharkhand was created only on 15-11-2000 and therefore no one could have completed 10 years of service with the State of Jharkhand on the cut-off date of 10- 4-2006. Therefore, no one could get the benefit of the Regularisation Rules which made the entire legislative exercise totally meaningless. The appellants had pointed out in the High Court that the State had issued Resolutions on 18-7- 2009 and 19-7-2009 permitting the regularisation of some employees of the State, who had obviously not put in 10 years of service with the State. Consequently, it was submitted that the appellants were discriminated against for no fault of theirs and in an irrational manner.<br>6. The&nbsp; &nbsp;concept&nbsp; &nbsp;of&nbsp; &nbsp;a&nbsp; &nbsp;one­time&nbsp; &nbsp;measure&nbsp; &nbsp;was&nbsp; &nbsp;further&nbsp; &nbsp;explained&nbsp; &nbsp;in Kesari3 in&nbsp; &nbsp;paras&nbsp; &nbsp;9,&nbsp; &nbsp;10&nbsp; &nbsp;and&nbsp; &nbsp;11&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Report which read as follows: (SCC pp. 250­51, paras 9­11)</h4><h4 style=\"margin-left: 25px;\"> </h4><h4 style=\"margin-left: 50px;\">‘9. The term “one-time measure” has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi1, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.</h4><h4 style=\"margin-left: 50px;\">10. At the end of six months from the date of decision in Umadevi1 , cases of several dailywage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the onetime regularisation process. On the other hand, some government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi1, will not lose their right to be considered for regularisation, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi1 has expired. The one-time exercise should consider all daily wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one time exercise in terms of para 53 of Umadevi1, but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi1, the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi1, are so considered.<br>11. The object behind the said direction in para 53 of Umadevi1&nbsp;is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi1&nbsp;was rendered, are considered for regularisation in view of their lon service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on dailywage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years,<br>thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision<br>in Umadevi1&nbsp;without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such<br>exercise of regularisation within six months of the decision in Umadevi1&nbsp;or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi1&nbsp;as a one-time measure.’</h4><h4>7. The purpose and intent of the decision in Umadevi 1 was therefore twofold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi1&nbsp; is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi1 and Kesari3, sought to avoid.<br>10. The decision in Narendra Kumar Tiwari7 has to be understood in the backdrop of the facts of that case.</h4><div><h4>1 (2006) 4 SCC 1<br>2 (2008) 10 SCC 1<br>3 (2010) 9 SCC 247 [Paras 7 &amp; 8]<br>4 (2013) 12 SCC 417 [Para 27]<br>5 (2013) 14 SCC 65<br>6 (2017) 14 SCALE 247 [Para 8] = (2018) 13 SCC 432<br>7 (2018) 8 SCC 238<br>8 AIR 1967 SC 1071<br>9 (1972) 1 SCC 409<br>10 (1979) 4 SCC 507<br>11 (2007) 1 SCC 408<br>12 (2007) 1 SCC 533<br>13 (2007) 5 SCC 326<br>14 (2007) 6 SCC 207<br>15 (2007) 11 SCC 92<br>16 (1978) 1 SCC 248</h4></div><div><br></div>', '448a45f9a26341d961b8762ef00221e8.PNG', 'f40cec202accffa827c97322ef61006f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-25', 1, '', '', '2021-03-26 02:39:16', '2021-03-26 02:56:25'),
(625, 'uNCJEjX0yk0iLNBBvkVGhlaOT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'IPC. Section 153A. The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153 A IPC and the prosecution has to prove the existence of mens rea in order to succeed. Supreme Court. 25 March 2021. ', '<h4>Patricia Mukhim vs State of Meghalaya and others. </h4><h4>Criminal Appeal 141 of 2021 decided on 25 March 2021. </h4><h4>Justice L. Nageswara Rao and Justice S. Ravindra Bhat. </h4><h4>Judgment Link:&nbsp;<br><a href=\"https://main.sci.gov.in/supremecourt/2020/28921/28921_2020_37_1501_27280_Judgement_25-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/28921/28921_2020_37_1501_27280_Judgement_25-Mar-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 8. “It is of utmost importance to keep all speech free in order for the truth to emerge and have a civil society.” - Thomas Jefferson. Freedom of speech and expression guaranteed by Article 19 (1) (a) of the Constitution is a very valuable fundamental right. However, the right is not absolute. Reasonable restrictions can be placed on the right of free speech and expression in the interest of sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence. Speech crime is punishable under Section 153 A IPC. Promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to maintenance of harmony is punishable with imprisonment which may extend to three years or with fine or with both under Section 153 A. As we are called upon to decide whether a prima facie case is made out against the Appellant for committing offences under Sections 153 A and 505 (1) (c).</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">9. Only where the written or spoken words have the tendency of creating public disorder or disturbance of law and order or affecting public tranquility, the law needs to step in to prevent such an activity. The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153 A IPC and the prosecution has to prove the existence of mens rea in order to succeed.</b><br>10. The gist of the offence under Section 153 A IPC is the intention to promote feelings of enmity or hatred between different classes of people. The intention has to be judged primarily by the language of the piece of writing and the circumstances in which it was written and published. The matter complained of within the ambit of Section 153A must be read as a whole. One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning<br>11. In Bilal Ahmed Kaloo v. State of A.P., this Court analysed the ingredients of Sections 153 A and 505 (2) IPC. It was held that Section 153 A covers a case where a person by “words, either spoken or written, or by signs or by visible representations”, promotes or attempts to promote feeling of enmity, hatred or ill will. Under Section 505 (2) promotion of such feeling should have been done by making a publication or circulating any statement or report containing rumour or alarming news. Mens rea was held to be a necessary ingredient for the offence under Section 153 A and Section 505 (2). The common factor of both the sections being promotion of feelings of enmity, hatred or ill will between different religious or racial or linguistics or religious groups or castes or communities, it is necessary that at least two such groups or communities should be involved. It was further held in Bilal Ahmed Kaloo (supra) that merely inciting the feelings of one community or group without any reference to any other community or group cannot attract any of the two sections. The Court went on to highlight the distinction between the two offences, holding that publication of words or representation is sine qua non under Section 505. It is also relevant to refer to the judgment of this Court in Ramesh v. Union of India in which it was held that words used in the alleged criminal speech should be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. The standard of an ordinary reasonable man or as they say in English law “the man on the top of a Clapham omnibus” should be applied.<br>12. This Court in Pravasi Bhalai Sangathan v. Union of India &amp; Ors. had referred to the Canadian Supreme Court decision in Saskatchewan (Human Rights Commission) v. Whatcott. In that judgment, the Canadian Supreme Court set out what it considered to be a workable approach in interpreting “hatred” as is used in legislative provisions prohibiting hate speech. The first test was for the Courts to apply the hate speech prohibition objectively and in so doing, ask whether a reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred. The second test was to restrict interpretation of the legislative term “hatred” to those extreme manifestations of the emotion described by the words “detestation” and “vilification”. This would filter out and protect speech which might be repugnant and offensive, but does not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or injury. The third test was for Courts to focus their analysis on the effect of the expression at issue, namely, whether it is likely to expose the targeted person or group to hatred by others. Mere repugnancy of the ideas expressed is insufficient to constitute the crime attracting penalty.<br>13. In the instant case, applying the principles laid down by this Court as mentioned above, the question that arises for our consideration is whether the Facebook post dated 04.07.2020 was intentionally made for promoting class/community hatred and has the tendency to provoke enmity between two communities. A close scrutiny of the Facebook post would indicate that the agony of the Appellant was directed against the apathy shown by the Chief Minister of Meghalaya, the Director General of Police and the Dorbar Shnong of the area in not taking any action against the culprits who attacked the non-tribals youngsters. The Appellant referred to the attacks on nontribals in 1979. At the most, the Facebook post can be understood to highlight the discrimination against nontribals in the State of Meghalaya. However, the Appellant made it clear that criminal elements have no community and immediate action has to be taken against persons who had indulged in the brutal attack on non-tribal youngsters playing basketball. The Facebook post read in its entirety pleads for equality of non-tribals in the State of Meghalaya. In our understanding, there was no intention on the part of the Appellant to promote class/community hatred. As there is no attempt made by the Appellant to incite people belonging to a community to indulge in any violence, the basic ingredients of the offence under Sections 153 A and 505 (1) (c) have not been made out. Where allegations made in the FIR or the complaint, even if they are taken on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the FIR is liable to be quashed<br><b style=\"background-color: rgb(255, 255, 0);\">14. India is a plural and multicultural society. The promise of liberty, enunciated in the Preamble, manifests itself in various provisions which outline each citizen’s rights; they&nbsp;include the right to free speech, to travel freely and settle (subject to such reasonable restrictions that may be validly enacted) throughout the length and breadth of India. At times, when in the legitimate exercise of such a right, individuals travel, settle down or carry on a vocation in a place where they find conditions conducive, there may be resentments, especially if such citizens prosper, leading to hostility or possibly violence. In such instances, if the victims voice their discontent, and speak out, especially if the state authorities turn a blind eye, or drag their feet, such voicing of discontent is really a cry for anguish, for justice denied – or delayed. This is exactly what appears to have happened in this case.</b><br>15. The attack upon six non-locals, carried out by masked individuals, is not denied by the State; its reporting too is not denied. The State in fact issued a press release. There appears to be no headway in the investigations. The complaint made by the Dorbar Shnong, Lawsohtun that the statement of the Appellant would incite communal tension and might instigate a communal conflict in the entire State is only a figment of imagination. The fervent plea made by the Appellant for protection of non-tribals living in the State of Meghalaya and for their equality cannot, by any stretch of imagination, be categorized as hate speech. It was a call for justice - for action according to law, which every citizen has a right to expect and articulate. Disapprobation of governmental inaction cannot be branded as an attempt to promote hatred between different communities. Free speech of the citizens of this country cannot be stifled by implicating them in criminal cases, unless such speech has the tendency to affect public order. The sequitur of above analysis of the Facebook post made by the Appellant is that no case is made out against the Appellant for an offence under Section 153 A and 505 (1) (c) IPC.<br>16. For the aforementioned reasons, the Appeal is allowed and the judgment of the High Court is set aside. FIR PS Case No.72 (7) 2020 dated 06.07.2020 registered at Police Station Laban is quashed.<br>&nbsp;</h4>', '1c869c82400f90db5ab9449c7ea9ed24.PNG', '1fbed4c2e64611466c33e23229b2626f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-25', 1, '', '', '2021-03-26 03:18:47', '2021-03-26 03:18:47'),
(626, 'zWt3Vn4ujO3xkwd32G3PhGX74', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Unauthorised absence. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot  be held to be wilful. Karnataka High Court. 18 February 2021', '<h4>C.Ramesh vs M/s. Hindustan Aeronautics Limited and others. </h4><h4>Writ Petition 43283 of 2017 decided on 18 February 2021.</h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/370564/1/WP43283-17-18-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/370564/1/WP43283-17-18-02-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: The petitioner in this writ petition has called in question the order of dismissal dated 30.12.2016, passed by the respondents - Hindustan Aeronautics Limited (hereinafter referred to as ‘HAL’ for short) dismissing the petitioner from service on the allegations of unauthorized absence and the order of the Appellate Authority dated 06.07.2017, affirming the order of dismissal.<br>13.The Enquiry Officer held the petitioner exparte on the ground that the petitioner has failed to appear on several adjournments and held that the allegations against the petitioner as proved.<br>14. It is required to be noticed in terms of what is narrated hereinabove is that, the petitioner though remained unauthorisedly absent, admits the factum of being unauthorisedly absent, but justifies the same on the ground that it was not willful but due to Chronic Bronchial Asthma that he suffered had resulted in unauthorized absence. In view of the aforesaid explanation given by the petitioner to all the spells of absence pursuant to the charge sheet dated 30.01.2016, which alleged unauthorized absence of 103 days,  I am of the considered view that the misconduct of the petitioner was not willful. He had a plausible explanation for remaining absent, the problem of the petitioner was known to the respondents as it is the doctor of the respondent – HAL itself who had recommended that the petitioner should seek transfer outside Bengaluru in view of the weather at the Bengaluru not being conducive to the problem of  the petitioner.<br>15. It is germane to consider the facts of the case at hand in the light of the law laid down by the Apex Court in the case of Coal India Ltd vs Mukul Kumar Choudhuri reported in (2009) 15 SCC 620, has held as follows:</h4><h4 style=\"margin-left: 25px;\">“21. In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the inquiry officer or the appellate authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3-10-1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of telephone calls dated 29-9-1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the inquiry officer held the appellant guilty.” </h4><h4 style=\"\">The Apex Court in the subsequent judgment in the case of Krushnakant B Paramar vs Union of India reported in (2012) 3 SCC 178, has held as follows:</h4><h4 style=\"margin-left: 25px;\">“16. In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether “unauthorised<span style=\"white-space:pre\">	</span>absence from duty” amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.<br>17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot  be held to be wilful. Absence from duty  without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be  different eventualities due to which an employee may abstain from duty, including  compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.<br>18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct.<br>19. In the present case the inquiry officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold that the absence was wilful; the disciplinary authority as also the  appellate authority, failed to appreciate the same  and wrongly held the appellant guilty.<br>20. The question relating to jurisdiction of the court in judicial review in a departmental  proceeding fell for consideration before this Court in M.V. Bijlani v. Union of India [(2006) 5 SCC 88 : 2006 SCC (L&S) 919] wherein this Court held:  (SCC p. 95, para 25)<br></h4><h4 style=\"margin-left: 50px;\">“25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs  a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot  take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.”</h4><h4 style=\"margin-left: 25px;\">21. In the present case, the disciplinary authority failed to prove that the absence  from duty was wilful, no such finding has been given by the inquiry officer or the appellate authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3-10-1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of telephone calls dated 29-9-1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the inquiry officer held the appellant guilty.<br>22. Mr P. Venkateswarlu, DCIO, Palanpur, who was the complainant and against whom the appellant alleged bias refused to appear before the inquiry officer in spite of service of summons. Two other witnesses, Shri Jivrani and Shri L.N. Thakkar made no statement against the appellant, and one of them stated that he had no knowledge about the absence of the appellant. Ignoring the aforesaid evidence, on the basis of surmises and conjectures, the inquiry officer held the charge proved.”</h4><h4 style=\"\">In the light of the law laid down by the Apex Court in the afore-extracted judgments and in the facts of the case  at hand, the misconduct of the petitioner was not willful. It is  not proved or held to be willful by the Disciplinary Authority even in the order of penalty.<br>17. In view of the preceding analysis, in my considered view the extreme penalty of dismissal from service upon the petitioner is disproportionate, to the alleged misconduct in the peculiar facts and circumstances of this case as the absence is not held or proved to be willful. The penalty of dismissal of service imposed upon the petitioner being disproportionate to the misconduct requires to be modified with the imposition of a lesser penalty which will not amount to cessation of service. The modification of penalty that is imposed by the disciplinary authority unless, in an exceptional circumstances, is a realm of the powers of the Disciplinary Authority. Therefore,  the  matter is to be remitted back to the Disciplinary Authority for reconsideration of the penalty imposed and for imposition of a lesser penalty which will not amount to cessation of service of the petitioner.<br>18. For the aforesaid reasons, the following:<br>ORDER<br>a. The writ petition is allowed in part.<br>b. The order of dismissal dated 30.12.2016 of the second respondent, which is confirmed by the order dated 06.07.2017, of the third respondent are quashed.<br>c. The matter is remitted back to the respondents - HAL to reconsider the penalty of dismissal from service by imposition of any lesser penalty upon the petitioner, within a period of three months from the date of receipt of a copy of the order.<br>d. All consequential benefits that would flow from the quashing of the order of penalty shall be subject to further orders passed by the Disciplinary Authority in terms of clause (c).<br>Ordered accordingly.<br><br><br></h4>', '5942e4f640969e93d969d3d882a9fc63.jpg', '1ea147a4820a4afeb9a0c03812a04ae0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-18', 1, '', '', '2021-03-26 03:55:29', '2021-03-26 03:56:00'),
(627, 'K6mhwMk2oiz1yIt1x4meKu51Y', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Compromise Decree. A decree founded on a compromise is nothing but a contract with seal of the court superadded. Such decree can be challenged on the grounds on which a contract can be avoided. Karnataka High Court. 4 March 2021', '<h4>B.P.Nagaraj and others vs B.P.Nanjappa and others. </h4><h4>Writ Petition 5814 of 2020 decided on 4 March 2021.</h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/374184/1/WP5814-20-04-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/374184/1/WP5814-20-04-03-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: There was a partition suit in O.S.No.114/1990; it  was filed inter alia by the petitioners & three others against the respondents 1 & 2 herein; all the parties happen to be the children of one late Puttappa; however, 5th Plaintiff Smt.Nanjamma was his widow; properties comprised in the suit apparently are huge and several; suit was resisted by filing the Written Statements; this suit came to be decreed on 25.01.1995 in terms of evenly dated Compromise Petition; the said decree having been vacated on the ground of fraud & mispresentation in terms of 1st respondent-Mr.Nanjappa’s Misc. Case No.9/2009 decided on 27.11.2019, this writ petition is filed for laying a challenge thereto.<br><b style=\"background-color: rgb(255, 255, 0);\">(c) It has been a long settled position of law that a decree founded on a compromise is nothing but a contract with seal of the court superadded; ordinarily, such a decree can be voided on the grounds that avail for avoiding a contract; since such a contract is sanctified by the seal of court, the degree of proof  of the grounds for such avoidance may be bit higher, is true; to bring in a contract, there has to be meeting of the minds and that this is militantly lacking in the case at hands inasmuch as what was decided in the Panchayat was the withdrawal of suit, whereas what has been brought about in the suit is a Compromise Decree; they are poles asunder; thus even if there is arguably no fraud, the Compromise Decree was unsustainable, since it was founded on an arrangement not animated by ad idem of the parties.</b><br>(d) The vehement contention of learned counsel for the petitioners that the Compromise Decree having been acted upon by the petitioner and others cannot be voided regardless of the arguable merits, is bit difficult to countenance; no material is produced to prima facie show that the 1st respondent herein has acted upon the compromise and thereby caused a detrimental alteration of others to his advantage, and therefore he needs to be estopped from resiling; there is a specific admission in the cross-examination of petitioners’ side ie., RW-2 that even after entering of the compromise decree, petitioners have not tried to take possession from the 1st respondent of the land in Sy.No.34/5 admeasuring 4 Acres & 2 Guntas at Papanahalli village and that both this land & the house do belong to the 1st respondent, by virtue of his self-  acquisition; no explanation is offered as to why this respondent has been permitted to continue in  the occupation of the said property that is shown to have fallen to the share of others in the Compromise Decree  for about  a decade & a half and till now.<br>(e) “Fraud vitiates everything …” said Lord Edward Coke centuries ago and since then all civilized jurisdictions have adopted it as  a  functional  norm for restoring justice  to the defrauded, arguable  legal  technicalities  such  as delay & laches, notwithstanding; our  Apex  Court  too echoed the same in S.P. Chengalavaraya Naidu –vs- Jagannath, (1994) 1 SCC 1 when it made the following observations: “…‘Fraud avoids  all  judicial  acts, ecclesiastical or temporal’ observed Chief Justice Edward Coke of England about three  centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est  in  the  eyes  of  law. Such a judgment/decree by the first court or  by the highest court has to be treated as  a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings...”<br>KERR ON THE LAW OF FRAUD & MISTAKE, 7th Edn, at page 8 states: “Civil Courts have an  original,  independent, and inherent jurisdiction to relieve against every species of fraud  not being  relief  of a penal nature. Every transfer or conveyance of property, by whatever means it be done, is vitiated by fraud. Deeds, obligations, contracts, awards, judgments, or decrees may be the instruments to which parties may resort to cover fraud, and through which they may obtain the most unrighteous advantages, but none of such devices or instruments will be permitted by a Court of Equity to obstruct the requirements of justice. If a case of fraud  be  established,  the Court will set aside all  transactions  founded upon it by whatever machinery they may have been effected, and notwithstanding any contrivance by which it may have  been  attempted to protect them.”<br><b style=\"background-color: rgb(255, 255, 0);\">(f) To invalidate a contract on  which  a  Compromise Decree is founded, on the ground of fraud, it needs to be prima facie shown that the same was perpetrated contemporaneously with the antecedents that constitute a part of the transaction  as  res  gestae;  as already mentioned above,</b> the Panchayat in the village had concluded that the suit be withdrawn, and immediately the papers were sought to be moved before the learned trial Judge; the gap  between these two, is too short to be little  for negotiating a settlement of partition of such huge properties; this apart, no circumstances are shown for deviating from the Panchayat decision, abruptly; in village life, things do not run that way; this Court is bewildered by the course of events, namely the withdrawal of  dispute  being converted into a settlement, in such too short a time; things of the kind can occur only in the fables like ‘Alice in Wonderland’ and not in the real life of men fighting long drawn legal battles, as is the case here.<br>(g) If a transaction in question has been founded on fraud ab inceptio, the original vice will continue to taint it, howsoever long negotiation might have been or into whatsoever ramifications it may extend; not only is the person who perpetrated the fraud is precluded  from  deriving any benefit under such a transaction, namely  the  so called compromise, as in this  case,  but  even  an  innocent person is so likewise,  subject  to  all  just exceptions into which argued case of the petitioners does not fit; English Courts have gone to the extent of holding that even an express  stipulation  that,  fraud  shall  not vitiate a contract, is bad in law; a covenant whereby  a  person seeks to save himself from false representation and the other party is sought to be precluded from having a remedy for fraud, is held to be illegal by Lord Atkin in Pearson vs. Dubling Corporation (1907) AC 351; that is the enormity of vice of fraud,  in  civilized  jurisdictions;  such a vice is rightly held to have been established by the learned Judge of the Court below by employing the rule of preponderance of probability; therefore impugned order cannot be faltered by this court in a limited supervisory jurisdiction constitutionally vested under Article 227 of the Constitution.<br>(h) The vehement contention of learned counsel for the petitioners that the compromise petition runs into several pages and that all pages are signed by the two advocates of the sides, is true; however, it is only the last page which bears the signature of the 1st respondent and other parties; no explanation is forthcoming as to why the signature of all the parties have not been  procured  on  all the pages of the compromise petition; prudence suggests that all pages ought to have been signed regard being had   to hugeness of the properties involved; similarly, no explanation is forthcoming as to why the compromise petition is drafted in English when illiterate  villagers  happen to be the stakeholders thereunder; of course, it is  not that every compromise petition should be in the vernacular; but the foreign language employed in the compromise petition, as it comes  through  in  the  fact matrix of the case at hands thickens the doubt & duplicity that infects the decree on which it is founded; admission of RW-2 as to the aforesaid land & building being the self acquisition of the  1st  respondent  and  its  introduction  to the compromise decree coupled with uninterrupted continuance of the said respondent in  occupation  thereof for long years even after the decree was made, thickens the same further and probabilises the case of the contesting respondent.<br>(i) Learned Judge of the Court below having considered all aspects of the matter has framed the impugned order in which are imbibed law  &  justice;  it could have been done in a better way, is no ground for its invalidation, since it has brought a just result; Oscar Wilde had said “There is scope for improvement even in heaven…”; that applies to all instruments of art &  science,  and therefore to the impugned order and also to this judgment which affirms it; what the learned Judge has done  is  nothing more than recalling the decree founded on a fraudulent compromise.<br>(j) Even otherwise, there was no ad idem ie., meeting of the minds of the parties as to the division of properties comprised in the compromise, if ground of fraud for argument sake, is taken to  have not been established;    it is so because ordinarily, negotiation in matters like this would have taken some reasonable period  after  the  decision to withdraw the suit was made in the panchayat;  the fact that the said panchas had directed withdrawal of  suit raises a strong presumption that future talks were contemplated for bringing out an amicable  settlement  of  the dispute for dividing the properties; if that be so, it becomes very difficult to countenance the contention  that  an amicable settlement was arrived at  overnight  defying  the decision of panchas by  the  parties  at  loggerheads;  thus, there was no legally enforceable agreement i.e., compromise on which a decree could have been founded; now that, the decree is voided by the court below and consequently suit is restored to the Board; parties can put forth their version by cogent evidence at  their  command and secure an appropriate decree in the suit.<br>In the above circumstances, this writ petition being devoid of merits is liable to be dismissed and accordingly it is, costs having been made easy; consequent to impugned order being sustained, suit is restored to the Board for the trial & disposal, from the stage it was, when the decree on compromise, was entered.<br>All contentions of the parties having been kept open, learned Judge of the jurisdictional court is requested to accomplish the trial & disposal  of  the  suit  preferably within an outer limit of one year, not being in any way influenced by the observations in the impugned order or in this judgment.<br><br></h4>', '5d698c522c2c2ca70595a12aa1f7c3cb.jpg', 'e4e4ce67ffbd426cdbcca1c2217ef6de.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-04', 1, '', '', '2021-03-26 04:15:32', '2021-03-26 04:16:01');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(628, 'ihAgIBlmClJH7vOoZhnF0YzHq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Acceptance of B report can NOT be done mechanically without adverting to the material on the basis of which the said report is filed. Karnataka High Court. 9 March 2021', '<div class=\"WordSection1\">\r\n\r\n<div class=\"WordSection1\">\r\n\r\n<h4 style=\"margin-top: 5.45pt; margin-right: 0cm; margin-bottom: 0.0001pt;\">K. Surya Prakash vs Smt. T. Rohini and others. </h4><h4 style=\"margin-top: 5.45pt; margin-right: 0cm; margin-bottom: 0.0001pt;\">Criminal Petition 101083 of 2018 decided on 9 March 2021. </h4><h4 style=\"margin-top: 5.45pt; margin-right: 0cm; margin-bottom: 0.0001pt;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/374625/1/CRLP101083-18-09-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/374625/1/CRLP101083-18-09-03-2021.pdf</a></h4><h4 style=\"margin-top: 5.45pt; margin-right: 0cm; margin-bottom: 0.0001pt;\"><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/374625/1/CRLP101083-18-09-03-2021.pdf\" target=\"_blank\"> </a>Complainant in P. C.No.154 /2010 on the file of the Court of II Addl. Civil Judge and JMFC, Ballari, has preferred this petition, praying to set aside the order dated 07.11 .2012 passed by the learned Magistrate accepting the ‘ B’ final report as well as the  order dated 17.03.2018 passed by  the I Addl. District and Sessions Judge, Ballari, in Criminal Revision Petition No.317/2013, confirming the said order.</h4><h4 style=\"margin-top: 5.45pt; margin-right: 0cm; margin-bottom: 0.0001pt;\">5. It is not in dispute that though  notice was issued, the complainant was not served. The endorsement of the police dated 07.11.2012 go to show that the complainant had vacated the  previous address and thereafter, the police sought further time to serve notice on him. The same has not been considered by the learned Magistrate. Acceptance of ‘B’ report by the learned Magistrate  is without application of mind. No reasons are assigned why the ‘B’ report was being accepted. Admittedly, when the notice was not served on the complainant and the impugned order was  not  within his knowledge, there was delay in approaching the revisional Court. Even if the learned counsel for the complainant was present when the ‘B’ report was filed, however, admittedly notice issued to the  complainant was  not  served on him.</h4><h4 style=\"margin-top: 5.45pt; margin-right: 0cm; margin-bottom: 0.0001pt;\">6. The course open for the learned Magistrate when a ‘B’ report is submitted has been dealt with by the Hon’ble Apex Court in several pronouncements. In Vasanti Dubey vs State of Madhya Pradesh (2012) 2 SCC 731 referring to the case of H. S.Bains Vs. State (UT of Chandigarh) reported in (1980) 4 SCC 631, the position has been summarized as under:</h4><h4 style=\"margin-top: 5.45pt; margin-right: 0cm; margin-bottom: 0.0001pt;\">“20.2 – Where, after completion of the investigation, the police sends an adverse  report under Section 173 ( 1 ), the Magistrate may take any of the following steps:</h4><h4 style=\"margin-top: 5.45pt; margin-right: 0cm; margin-bottom: 0.0001pt;\">(i) If he agrees with police report, and finds that there is no sufficient ground for proceeding further, he may  drop the proceeding and dismiss the complaint,</h4><h4 style=\"margin-top: 5.45pt; margin-right: 0cm; margin-bottom: 0.0001pt;\">(ii) He may not agree with the police  report and may take cognizance of the offence on the basis of the original complaint, under Section 190 (1) (a) and proceed to examine the complainant under Section 200 .”</h4><h4 style=\"margin-top: 5.45pt; margin-right: 0cm; margin-bottom: 0.0001pt;\">7. It is also useful to refer to paragraph 21 of the said judgment which reads as under:</h4><h4 style=\"margin-top: 5.45pt; margin-right: 0cm; margin-bottom: 0.0001pt;\">“21. Thus, it is undoubtedly true that  even after the police report indicates that no case is made out against the accused, the Magistrate can ignore the same and  can  take cognizance on applying his mind  independently  to  the case. But in that situation, he has two options: ( i) he may not agree with the police report and direct an enquiry under Section 202 and after such enquiry take action under  Section 203 ; (ii) he is also entitled to take cognizance under Section 190 Cr. P. C. at once if he disagrees with the adverse police report but even in this circumstance, he cannot straightaway direct submission of the charge- sheet by the police.”</h4><h4 style=\"margin-top: 5.45pt; margin-right: 0cm; margin-bottom: 0.0001pt;\"><b style=\"background-color: rgb(255, 255, 0);\">8.From the above, it can be gathered that ‘B’ report cannot be accepted mechanically, without adverting to the material on the basis of which the said report is filed. The impugned order passed by the learned Magistrate is without application of mind and the  same is  liable to be  set aside.</b></h4><h4 style=\"margin-top: 5.45pt; margin-right: 0cm; margin-bottom: 0.0001pt;\">9.In the facts and circumstances, the learned Magistrate shall proceed from the stage of receiving the ‘B’ report, in accordance with law. Hence, the following: </h4><h4 style=\"margin-top: 5.45pt; margin-right: 0cm; margin-bottom: 0.0001pt;\">ORDER</h4><h4 style=\"margin-top: 5.45pt; margin-right: 0cm; margin-bottom: 0.0001pt;\">i)The impugned orders dated 17.03.2018 passed by the I Addl. District and Sessions Judge, Ballari, in Crl.R. P.No.317 /2013 and the order dated 07.11 . 2012 passed in P. C.R.No.154/2010 on the file of the II Addl. Civil Judge and JMFC, Ballari, is hereby set aside,</h4><h4 style=\"margin-top: 5.45pt; margin-right: 0cm; margin-bottom: 0.0001pt;\">ii)The learned Magistrate shall proceed from the stage of receiving the  ‘B’ report, in accordance with law,</h4><h4 style=\"margin-top: 5.45pt; margin-right: 0cm; margin-bottom: 0.0001pt;\">iii) If need arises, the complainant is at liberty to file protest petition and in that event, the learned Magistrate shall proceed in accordance with law.</h4><h4 style=\"margin-top: 5.45pt; margin-right: 0cm; margin-bottom: 0.0001pt;\"><br></h4></div></div>', 'c41a1680be9987ff4827b409593d34ed.jpg', 'e6c3b6c0a5ac9cb5dd8aad569175e3b2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-09', 1, '', '', '2021-03-26 18:05:44', '2021-03-26 18:08:22'),
(629, 'el1wvdQBej4r2JjAltx6esngD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'HIndu Minority and Guardianship Act. Section 8. Court permission is required only for the separate or absolute property of the minor and NOT for mniors undivided share in the joint family property. Bombay High Court. 25 November 1999', '<h4>Sandhya Rajan Antapurkar v. State of Maharashtra, 1999 SCC OnLine Bom 735 : (2000) 2 Mah LJ 158 : (2000) 2 Bom CR 832 : (2000) 2 HLR 277 : (2001) 1 DMC 135 </h4><h4>First Appeal No. 78 of 1999, decided on November 25, 1999. Justice A.S. Bagga. </h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Full Judgment</span>: 1. This appeal is filed against the judgment and order passed on 4-1-1999 in Misc. Civil Application No. 130 of 1998 by the Joint Civil Judge, S.D., Jalgaon.<br>2. Misc. Civil Application came to be filed by the Appellants seeking permission for sale of property (house property) in which the appellants have 1/5th share.<br>3. The property originally belonged to one Madhukar Pandurang Antapurkar who died on 3-3-1995 leaving behind him two sons Rajan and Anil and three daughters namely; Vijaya, Rajni and Sunita. Rajan died on 5-5-1995 leaving behind him widow Sandhya and daughters Shweta and Kavita — the appellants herein. Deceased Rajan had got 1/5th share in the property that has devolved upon present appellants. The property, which is intended to be sold, admittedly is a joint family property in which appellants have 1/5th share. The permission for sale is sought under section 8 of the Hindu Minority and Guardianship Act, 1956 and section 29 of the Guardians and Wards Act, 1890.<br>4. The learned Judge dismissed the application observing that the power of natural guardian to deal with the immovable property of minor under section 8 of the Hindu Minority and Guardianship Act is in relation to minor\'s definite property. Since minor\'s fluctuating interest is in joint family property, section 8 of the Act does not apply. It is against the aforesaid rejection, the present Appeal has been preferred by the appellants.<br>5. The only point to be decided in this appeal is whether the permission under section 8 of the Hindu Minority and Guardianship Act, 1956 or under section 29 of the Guardians and Wards Act, 1890 in the present case is necessary.<br>6. The property is admittedly joint family property in which Smt. Sandhya and her minor daughters Shweta and Kavita have share. Smt. Sandhya is mother and natural guardian of Shweta and Kavita minor daughters. The property admittedly has not been divided by metes and bounds and minor daughters Shweta and Kavita have undivided and unspecified share in the same.<br>7. Under section 6 of the Hindu Minority and Guardianship Act, 1956, the father and after him the mother is natural guardian of Hindu minor in respect of minor person as well as in respect of the minor\'s property. The undivided interest of the minor in joint family property has been specifically excluded by this section.<br><b style=\"background-color: rgb(255, 255, 0);\">8. Section 8 of the Hindu Minority and Guardianship Act, 1956 prevents natural guardian of Hindu minor to transfer by sale, gift, exchange or otherwise any part of immovable property of the minor without previous permission of the Court. This restriction on the natural guardian in relation to the property of the minor applies only to the separate or absolute property of the minor. It does not include the minor\'s undivided share in the joint family property, as, under section 6, there cannot be a natural guardian in respect of such property which is specifically excluded.</b><br>9. The Appellant No. 1-Smt. Sandhya is not natural guardian with regard to undivided and fluctuating interest of minors - appellants Nos. 2 and 3. Section 12 of the Act declares that no guardian can be appointed with regard to the undivided interest of the minor in joint family property. The Courts have consistently held that under the Guardians and Wards Act also no legal guardian can be appointed in respect of undivided interest of the minor in joint family property unless minor is the sole surviving coparceners.<br>10. Appellant No. 1 - Smt. Sandhya having undivided share along with the Appellants Nos. 2 and 3 and the share being undivided and fluctuating, the provisions of section 8 do not apply in this case.<br>11. Under the Hindu Law, the manager or karta of the family of the minor-can alienate minor\'s undivided interest in the joint family property without the permission of the Court, provided alienation is for legal necessity or for the benefit of the minor and this right is left untouched by the Hindu Minority and Guardianship Act, 1956. This is made clear by providing in section 12 of the Act that when the joint family property is under the management of an adult member of the family, no guardian shall be appointed for the undivided interest of the minor in the joint family property.<br>12. In view of what has been stated above, no fault can be found with the order of learned Judge below rejecting application of the appellants. The appeal, in the result will have to be dismissed with no order as to costs.<br>Appeal dismissed.</h4><p><br></p>', '17b316304762cf058c2e69b5e0be79c5.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1999-11-25', 1, '', '', '2021-03-26 21:52:26', '2021-03-26 21:57:36'),
(630, 'oMsj2zLTXz72C0qkv60DNnWxF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Judicial review under Article 226, Constitution of India. Ordinarily the High Court in its jurisdiction under Article 226 would decline to entertain a dispute which arbitrable. Supreme Court. 26 March 2021', '<h4>Rapid Metro Rail Gurgaon Limited vs Haryana Mass Rapid Transport Corporation. </h4><h4>Civil Appeals 925-926 of 2021 decided on 26 March 2021. </h4><h4>Justice Dr Dhananjaya Y Chandrachud, Justice M R Shah and Justice Sanjiv Khanna. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/1500/1500_2021_35_1501_27232_Judgement_26-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/1500/1500_2021_35_1501_27232_Judgement_26-Mar-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Held</span>: 49....In the present case, the High Court was evidently concerned over a fundamental issue of public interest, which was the hardship that would be caused to commuters who use the rapid metro as a vehicle for mass transport in Gurgaon. As such, the High Court’s exercise of its writ jurisdiction under Article 226 in the present case was justified since non-interference, which would have inevitably led to the disruption of rapid metro lines for Gurgaon, would have had disastrous consequences for the general public. <b style=\"background-color: rgb(255, 255, 0);\">However, as a measure of abundant caution, we clarify that ordinarily the High Court in its jurisdiction under Article 226 would decline to entertain a dispute which is arbitrable </b>(Bisra Lime Stone Co. Ltd. vs Orissa SEB, (1976) 2 SCC 167). Moreover, remedies are available under the Arbitration and Conciliation Act, 1996 for seeking interim directions either under Section 9 before the Court vested with jurisdiction or under Section 17 before the Arbitral Tribunal itself.</h4>', 'fa963082c2f3190024bc2e472e370c82.jpg', '1a50159fff338f1e52fc98b8e3bbbcfa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-26', 1, '', '', '2021-03-27 00:10:02', '2021-03-27 00:10:02'),
(631, 'W18tKDHLrbke1sp3NVmHy3Le4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Corporate Law. Legislative history of oppression, mismanagement and unfair prejudice - explained. Supreme Court. 26 March 2021. ', '<h4>TATA Consultancy Services Limited vs Cyrus Investments Pvt Ltd and others. </h4><h4>Civil Appeal 440441 of 2020 decided on 26 March 2021. </h4><h4>Chief Justice S.A. Bobde, Justice A.S. Bopanna and Justice V. Ramasubramanian. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/212/212_2020_31_1503_27229_Judgement_26-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/212/212_2020_31_1503_27229_Judgement_26-Mar-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\"><b>15.  Legislative   History   of   Oppression,   Mismanagement   and<br>Unfair Prejudice</b></span><br>15.1 Before we take up the questions of law formulated above<br>for   consideration,   we   think   it   would   be   useful   to   look   at   the<br>legislative history of oppression, mismanagement and prejudice/<br>unfair prejudice, both in England and India, as colonial vintage<br>continues   to   haunt   us   (fortunately   or   unfortunately),   both   in<br>legislative drafting and in judicial decision making even till date.<br>In England<br>15.2 The history of legislative action to regulate incorporated<br>companies, in England, is just 176 years old. It begins with the<br>Joint   Stock   Companies   Act,   1844.   Until   then,   the   government<br>created corporations under a Royal Charter or an Act of Parliament<br>with the grant of a monopoly over a specified territory. The best<br>known example is the British East India Company, to which Queen<br>Elizabeth I granted the exclusive right to trade with all countries to<br>the east of the Cape of Good Hope. During this period, Corporations<br>essentially   used   to   act   on   the   government\'s   behalf,   bringing   in<br>revenue from their exploits abroad.<br>15.3 A chartered company (similar to East India Company),<br>known as the South Sea Company, was established in 1711 to<br>trade   in   the   Spanish   South   American   colonies.   The   South   Sea<br>Company\'s monopoly rights were supposedly backed by the Treaty<br>of Utrecht, signed in 1713 as a settlement following the War of<br>Spanish   Succession.   Investors   in   the   UK   were   promised   high<br>returns of unimaginable proportions, which led to the shares of the<br>company being traded by avaricious investors at high premium. By<br>1717, the South Sea Company became so wealthy despite having<br>done no real business that it assumed the public debt of the UK<br>government. This was the first speculative bubble that the country<br>(or perhaps the world) saw, but by the end of 1720, the bubble had<br>\"burst\", leading to bankruptcies and the passage of The Bubble Act,<br>1720.<br>15.4 The UK Bubble Act, 1720 prohibited the establishment of<br>companies without a Royal Charter and it remained in force until<br>its repeal in 1825. By 1825, Industrial Revolution had gathered<br>pace, necessitating a legal change. The Bubble Companies Act 1825<br>lifted the restrictions, but it did not resolve the problem fully.<br>15.5 Therefore in 1843, the Parliamentary Committee on Joint<br>Stock Companies, chaired by William Gladstone made a report,<br>which led to the enactment of the Joint Stock Companies Act 1844.<br>This   Act   made   it   possible   for   ordinary   people   to   incorporate<br>companies through a simple registration procedure. However, it did<br>not permit limited liability.<br>15.6 Then came the Limited Liability Act, 1855, which allowed<br>investors to limit their liability in the event of business failure, to<br>the amount they invested in the company. These two features ­ a<br>simple   registration   procedure   and   limited   liability   ­   were<br>subsequently codified in the first modern company law enactment,<br>namely   the   Joint   Stock   Companies   Act   1856.  The   Joint   Stock<br>companies   Act,   1856   made   it   possible   for   any   7   individuals,<br>subscribing   to   shares   individually,   to   form   a   limited   liability<br>company.  This was subsequently consolidated with a number of<br>other statutes in the Companies Act 1862, which was described by<br>Francis Palmer as the Magna Carta of Co­operative enterprises.<br>15.7 The Companies Act, 1862 consolidated the laws relating<br>to   the   incorporation,   regulation   and   winding   up   of   trading<br>companies and other associations. Though this Act did not provide<br>for   any   remedies   to   the   minority   shareholders   in   respect   of<br>oppression and mismanagement, Section 79 empowered the Court<br>to wind up a company whenever the Court was of the opinion that it<br>is   just   and   equitable   to   wind   up   the   company.   This   Act   also<br>contained a provision conferring a limited right upon a dissentient<br>member, whenever a sale or transfer of the business or property of<br>the company took place in the course of winding up proceedings.<br>15.8 However, when fraudulent practices in relation to the<br>formation   and   management   of   companies   came   to   the   fore,   an<br>investigation was ordered by a Committee chaired by Lord Davey.<br>The Committee submitted a report along with a draft Bill in June,<br>1895. This Bill became the Companies Act, 1900. This Act also did<br>not   contain   any   provision   relating   to   oppression   and<br>mismanagement.   So   was   the   case   with   the   Companies<br>(Consolidation) Act, 1908. The Act of 1908 was examined by a<br>committee presided over by Lord Wrenbury in 1918 and again by a<br>committee   headed   by   Greene,   K.G.   in   1926,   which   led   to   the<br>Companies Act, 1929.<br>15.9 During the second world war, a Company Law Reforms<br>Committee chaired by Lord Cohen was appointed (in 1943) by the<br>President of the Board of Trade to consider and report what major<br>amendments are needed to the 1929 Act, particularly “to review the<br>requirements prescribed in regard to the formation and affairs of<br>companies and the safeguards afforded for investors and for the<br>public interest”. This Committee’s report dealt specifically with 2<br>problems, namely (i) the hardship caused to the legal heirs of a<br>deceased shareholder of a private company in the matter of disposal<br>of the shares, due to the restriction on the transferability of shares<br>and (ii) the abuse of office by the Directors in siphoning off huge<br>profits in the form of remuneration, to the detriment of the small<br>shareholders. After analyzing these 2 issues in paragraphs 58 and<br>59 as illustrative cases, the Cohen Committee, recommended that<br>“a step in the right direction would be to enlarge the power of the<br>Court to make a winding­up order by providing that the power shall<br>be   exercisable   notwithstanding   the   existence   of   an   alternative<br>remedy”. <br><b style=\"background-color: rgb(255, 255, 0);\">Legislative history in India</b><br>15.16 In India, the earliest legislation made for the ‘Regulation<br>of Registered Joint Stock Companies’ was Act No. XLIII of 1850.<br>This   Act   provided   for   the   registration   of   every   un­incorporated<br>company   of   partners,   associated   under   a   deed   containing   a<br>provision   that   the   shares   in   the   stock   or   business   of   the   said<br>company, are transferable without the consent of all the partners. It<br>will be fascinating for those interested in history, to know that<br>under   this   1850   Act,  the   Supreme   Courts   of   Judicature   at<br>Calcutta, Madras and Bombay were conferred not only with the<br>power of registration of such companies but also with a power to<br>enforce the performance by the directors of any of their duties<br>under the Act or the deed of partnership. These courts also had a<br>consequential power to punish a person for contempt, if there was<br>any disobedience of the order of the court. The concepts such as<br>minority, majority, oppression, mismanagement etc., were alien to<br>this Act of 1850.<br>15.17 Then came Act No.XIX of 1857 which provided for the<br>incorporation and regulation of joint stock companies and other<br>associations either with or without limited liability of the members<br>thereof.  The primary object of the Act was to enable the members of<br>the   joint   stock   companies   and   other   associations   to   limit   their<br>liability for the debts and engagements relating to those companies<br>and associations. It was under this Act that for the first time the<br>prescription   that   7   or   more   persons   associated   for   any   lawful<br>purpose may form themselves into an incorporated company with<br>or   without   limited   liability   by   subscribing   their   names   to   a<br>Memorandum of Association, was introduced. By this very same Act<br>the prohibition for 20 or more persons to carry on any partnership<br>in trade or business having gain as its object, unless they are<br>registered as a company, was also introduced.  But even in this Act<br>the concepts such as oppression and mismanagement etc., were not<br>dealt with (perhaps due to the fact that East India Company alone<br>was granted such a privilege).<br>15.18 Thereafter, a full­fledged enactment known as The Indian<br>Companies’ Act, 1866 was passed with a view to consolidate and<br>amend   the   laws   relating   to   the   incorporation,   regulation   and<br>winding up of trading companies and other associations.  Even this<br>Act, did not provide for any remedy in the case of oppression and<br>mismanagement,   though   provisions   were   made   for   winding   up<br>including voluntary winding up.<br>15.19 The above Act No. X of 1866 was repealed by The Indian<br>Companies   Act   No.   VI   of   1882.   This   Act   also   did   not   contain<br>provisions for an individual or group of shareholders/members to<br>seek redressal against oppression, mismanagement or any unfair<br>prejudicial treatment.<br>15.20 Then came The Indian Companies Act, 1913 (Act No.VII<br>of 1913) which repealed the 1882 Act and the amendments made<br>thereof. Interestingly, this 1913 Act also repealed one particular<br>provision in the Indian Arbitration Act, 1899. Though in the original<br>enactment of 1913, there was no provision relating to oppression<br>and   mismanagement,   the   Amendment   Act   52   of   1951   inserted<br>Section 153C to The Indian Companies Act, 1913. <br>15.21 After the country attained independence, a Company Law<br>Committee   was   appointed   by   the   Government   of   India   for   the<br>revision of the Companies Act with particular reference to Indian<br>trade and industry. The Committee submitted its report in March1952.   After   circulating   the   Report   to   all   State   Governments,<br>Chambers of Commerce, Trade Associations and other bodies and<br>after examining the inputs received, the Companies Act, 1956 (Act<br>no.1 of  1956) was  passed. This  Act included  a full Chapter in<br>Chapter   VI   of   Part   VI,   containing   elaborate   provisions   for   the<br>prevention of oppression and mismanagement. This Chapter was<br>divided into two parts, with Part A dealing with the powers of the<br>Court/Tribunal and Part B dealing with the powers of the Central Government.  <br>15.22 After the economy of the country opened up and the<br>national   and   international   economic   environment   changed,   the<br>Government   decided   to   replace   the   1956   Act   with   a   new   one.<br>Accordingly, the Companies Bill, 2009 was introduced in the Lok<br>Sabha. But this bill was withdrawn and the Companies Bill, 2011<br>was introduced.  This eventually became the Companies Act 2013.<br>Among the many changes brought about by this Companies Act<br>2013, those relating to protection of minority shareholders is what<br>is relevant for our purpose. In fact, paragraph 5(ix) of the Statement<br>of Objects and Reasons for the Companies Act, 2013 deals with the<br>issue of protection of minority shareholders.<br>15.23 Chapter XVI of the 2013 Act containing Sections 241 to<br>246   deals   exclusively   with   “Prevention   of   Oppression   and<br>Mismanagement.”<br>15.24 Thus the English legislative history of the provisions<br>relating to oppression, mismanagement and prejudice, show 3<br>milestones,  namely  (i)   the   introduction   in  the  year  1862,  of<br>the   ‘just   and   equitable   clause’   for   winding   up   and   the<br>conferment   of   a   limited   right   on   the   dissentient   member,<br>whenever   a   transfer   or   sale   took   place   in   the   course   of<br>winding   up   proceedings,   (ii)   the   provision   of   an   alternative<br>remedy  to  winding  up,   in  case  of  oppression  of  minority,   in<br>the year 1948 and (iii) the shift from oppression to the ‘unfair<br>prejudice’ quotient in 1980/1985. The journey, in other words,<br>was   from   “winding   up   on   just   and   equitable   cause”   to<br>“oppression” to “unfair prejudice”.<br>15.25 But   in   so   far   as   India   is   concerned,   what   was<br>incorporated in section 210 of the English Companies Act, 1948,<br>inspired the insertion of section 153­C of the Indian Companies Act,<br>1913, by way of an amendment in 1951. Then came sections 397<br>and 398 of the 1956 Act, with certain modifications. An overhaul of<br>these provisions resulted in Sections 241 and 242 of the 2013<br>Indian Act, on the model of (and not exact reproduction of) sections 459 to 461 of the English Companies Act, 1985 and sections 994 to<br>996 of the English Act of 2006.     <br>15.27 From the table given above, it could be seen that the<br>changes brought about in India in course of time, were material.<br>These changes can be summarised as follows:  <br>(i)  While the conduct of the company’s affairs in a manner that<br>warrant interference, should be “present and continuing”, under<br>the 1913 Act and 1956 Act, as seen from the usage of the words<br>“are   being”,  the  conduct   could   even   be  “past   or   present   and<br>continuous”  under the 2013 Act as seen from the usage of the<br>words  “have been or are being” (But the conduct cannot be of a<br>distant past); <br>(ii) Prejudice to public interest and prejudice to the interests of any<br>member or members were not among the parameters prescribed in<br>the 1913 Act, but under the 1956 Act prejudice to public interest was included both under the provision relating to oppression and<br>also under the provision relating to mismanagement. Prejudice to<br>the interest of the company was included only in the provision<br>relating   to   mismanagement.   But   under   the   2013   Act   conduct<br>prejudicial   to   any   member   or   prejudicial   to   public   interest   or<br>prejudicial to the interest of the company are all added along with<br>oppression; <br>(iii) Under the 1913 Act, the Court should be satisfied that winding<br>up   under   the   just   and   equitable   clause   will   not   only   unfairly<br>prejudice   but  “also   materially   prejudice”  the   interests   of   the<br>company or any part of its members. But in the 1956 Act and 2013<br>Act, the words  “and materially”  do not follow the word  “unfairly”.<br>Moreover, under the 1956 Act and 2013 Act all that is required to<br>be seen is whether the winding up will unfairly prejudice  “such<br>member   or   members”  indicating   thereby   that   the   focus   was   on<br>complaining/affected members 15.29 There   are   a   few   notable   features   of   the   shift   that<br>happened in England. They are  (i)  from a  “conduct oppressive to<br>some part of the members” the focus has shifted to “conduct unfairly<br>prejudicial to the interests of the members generally or of some part<br>of   its   members”:  (ii)  conduct   prejudicial   to   public   interest   or<br>prejudicial to the company’s interest, does not form part of the<br>scheme of English Law; (iii) any actual or proposed act or omission,<br>can also be challenged under English Law on the ground that it<br>would turn out to be prejudicial;  (iv)  the question of the Court<br>forming an opinion that the facts would otherwise require an order<br>for winding up on just and equitable ground but that the same will<br>unfairly prejudice the complaining members, does not arise under<br>the English Law any more.<br>15.30 But despite the huge shift in England, there appears to<br>be a common thread running in all the enactments, both in India<br>and England. In all the 3 Indian enactments, namely the 1913 Act,<br>1956 Act and the 2013 Act, the Court is ordained, generally to pass<br>such orders “with  a   view   to  bringing   to  an   end   the  matters<br>complained of”.  This sentence is found in Section 153C(4) of the<br>1913 Act. It is found in Section 397(2) as well as 398(2) of the 1956<br>Act and it is also found in Section 242 (1) of the 2013 Act. This is<br>also   the   common   thread   that   runs   through   the   statutory<br>prescriptions   contained   in   the   English   Acts   of   1948,   1985   and<br>2006. Therefore, at the stage of granting relief in an application<br>under these provisions, the final question that the Court should ask<br>itself is as to whether the order to be passed will bring to an end the<br>matters complained of. Having thus seen the development of law, let<br>us now take up the questions of law one after another.</h4>', '7a6558e6456378e6d4d1062d118f3a7d.png', '343b0954796e239ec40cde2f81c932b8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-26', 1, '', '', '2021-03-27 01:02:18', '2021-03-27 01:06:24'),
(632, 'guXYd5c7gGAK85pzu0wU5C2rL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Insolvency and Bankruptcy Code. Action under Section 7 can be initiated by a financial creditor against a corporate debtor concerning guarantee offered by it to a non-corporate principal borrower. Supreme Court. 26 March 2021. ', '<h4>Lasmi Pat Surana vs Union Bank of India. </h4><h4>Civil Appeal 2734 of 2020 decided on 26 March 2021.</h4><h4> Justice A.M. Khanwilkar, Justice B.R. Gavai, and Justice Krishna Murari. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/13088/13088_2020_34_1501_27231_Judgement_26-Mar-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/13088/13088_2020_34_1501_27231_Judgement_26-Mar-2021.pdf</a></h4><h4><b style=\"background-color: rgb(255, 255, 0);\">ISSUE (i): Whether an action under Section 7 of the Insolvency and Bankruptcy Code, 2016 can be initiated by the financial creditor (Bank) against a corporate  person (being a corporate debtor) concerning guarantee offered by it in respect of a loan account of the principal borrower, who had for short, “the Code” committed default and is not a “corporate person” within the meaning of the Code?</b></h4><h4>16. Section   7   of   the   Code   propounds   the   manner   in   which<br>corporate insolvency resolution process (CIRP) may be initiated<br>by the “financial creditor” against a “corporate person being the<br>corporate debtor”.  It predicates that a financial creditor either by<br>itself or jointly with other financial creditors or any other person<br>on behalf of the financial creditor, as may be notified by the<br>Central Government, may file an application for initiating CIRP<br>against   a   corporate   debtor   before   the   Adjudicating   Authority<br>when a default is committed by it.   The expression “default” is<br>expounded in Section 3(12) to mean non­payment of debt which<br>had become due and payable and is not paid by the debtor or the<br>corporate debtor, as the case may be.<br>17. Section   7   is   an   enabling   provision,   which   permits   the<br>financial creditor to initiate CIRP against a corporate debtor.  The<br>corporate debtor can be the principal borrower.  It can also be a<br>corporate person assuming the status of corporate debtor having<br>offered guarantee, if and when the principal borrower/debtor (be<br>it a corporate person or otherwise) commits default in payment of<br>its debt.<br>18. The term “financial creditor” has been defined in Section<br>5(7) read with expression “Creditor” in Section 3(10) of the Code<br>to mean a person to whom a financial debt is owed and includes<br>a   person   to   whom   such   debt   has   been   legally   assigned   or<br>transferred to.  This means that the applicant should be a person<br>to whom a financial debt is owed.  The expression “financial debt”<br>has   been   defined   in   Section   5(8).     Amongst   other   categories<br>specified therein, it could be a debt along with interest, which is<br>disbursed against the consideration for the time value of money<br>and would include the amount of any liability in respect of any of<br>the guarantee or indemnity for any of the items referred to in<br>sub­clauses (a) to (h) of the same clause.  It is so provided in subclause (i) of Section 5(8) of the Code to take within its ambit a<br>liability in relation to a guarantee offered by the corporate person<br>as a result of the default committed by the principal borrower.<br>The expression “debt” has been defined separately in the Code in<br>Section 3(11) to mean a liability or obligation in respect of “a<br>claim” which is due from any person and includes a financial<br>debt   and   operational   debt.     The   expression   “claim”   would<br>certainly   cover   the   right   of   the   financial   creditor   to   proceed<br>against the corporate person being a guarantor due to the default<br>committed by the principal borrower.  The expression “claim” has<br>been defined in Section 3(6), which means a right to payment,<br>whether   or   not   such   right   is   reduced   to   judgment,   fixed,<br>disputed, undisputed, legal, equitable, secured or unsecured.  It<br>also means a right to remedy for breach of contract under any<br>law for the time being in force, if such breach gives rise to a right<br>to payment in respect of specified matters.  <br>19. Indubitably, a right or cause of action would enure to the<br>lender   (financial   creditor)   to   proceed   against   the   principal<br>borrower, as well as the guarantor in equal measure in case they<br>commit default in repayment of the amount of debt acting jointly<br>and severally.  It would still be a case of default committed by the<br>guarantor   itself,   if   and   when   the   principal   borrower   fails   to<br>discharge his obligation in respect of amount of debt.  For, the<br>obligation of the guarantor is coextensive and coterminous with<br>that of the principal borrower to defray the debt, as predicated in<br>Section 128 of the Contract Act.   As a consequence of such<br>default, the status of the guarantor metamorphoses into a debtor<br>or a corporate debtor if it happens to be a corporate person,<br>within the meaning of Section 3(8) of the Code.  For, as aforesaid,<br>expression “default” has also been defined in Section 3(12) of the<br>Code to mean non­payment of debt when whole or any part or<br>instalment of the amount of debt has become due or payable and<br>is not paid by the debtor or the corporate debtor, as the case may<br>be.  <br>20. A priori, in the context of the provisions of the Code, if the<br>guarantor is a corporate person (as defined in Section 3(7) of the<br>Code), it would come within the purview of expression “corporate<br>debtor”, within the meaning of Section 3(8) of the Code.    <br>21. It may be useful to also advert to the generic provision<br>contained in Section 3(37).   It postulates that the words and<br>expressions used and not defined in the Code, but defined in<br>enactments   referred   to   therein,   shall   have   the   meanings<br>respectively assigned to them in those Acts.   Drawing support<br>from this provision, it must follow that the lender would be a<br>financial creditor within the meaning of the Code.  The principal<br>borrower   may   or   may   not   be   a   corporate   person,   but   if   a<br>corporate   person   extends   guarantee   for   the   loan   transaction<br>concerning a principal borrower not being a corporate person, it<br>would   still   be   covered   within   the   meaning   of   expression<br>“corporate debtor” in Section 3(8) of the Code.  <br>22. Thus   understood,   it   is   not   possible   to   countenance   the<br>argument of the appellant that as the principal borrower is not a<br>corporate person, the financial creditor could not have invoked<br>remedy under Section 7 of the Code against the corporate person<br>who had merely offered guarantee for such loan account. That<br>action can still proceed against the guarantor being a corporate<br>debtor, consequent to the default committed by the principal<br>borrower.  There is no reason to limit the width of Section 7 of<br>the Code despite law permitting initiation of CIRP against the<br>corporate   debtor,   if   and   when   default   is   committed   by   the<br>principal   borrower.     For,   the   liability   and   obligation   of   the<br>guarantor   to   pay   the   outstanding   dues   would   get   triggered<br>coextensively.<br>23. To   get   over   this   position,   much   reliance   was   placed   on<br>Section   5(5A)   of   the   Code,   which   defines   the   expression<br>“corporate guarantor” to mean a corporate person, who is the<br>surety in a contract of guarantee to a Corporate debtor.   This<br>definition has been inserted by way of an amendment, which has<br>come into force on 6.6.2018.  This provision, as rightly urged by<br>the   respondents,   is   essentially   in   the   context   of   a   corporate<br>debtor against  whom  CIRP is to  be initiated in  terms of  the<br>amended   Section   60   of   the   Code,   which   amendment   is<br>introduced by the same Amendment Act of 2018.   This change<br>was to empower NCLT to deal with the insolvency resolution or<br>liquidation processes of the corporate debtor and its corporate<br>guarantor in the same Tribunal pertaining to same transaction,<br>which   has   territorial   jurisdiction   over   the   place   where   the<br>registered office of the corporate debtor is located.  That does not<br>mean that proceedings under Section 7 of the Code cannot be<br>initiated against a corporate person in respect of guarantee to the<br>loan amount secured by person not being a corporate person, in<br>case of default in payment of such a debt.<br>24. Accepting   the   aforementioned   argument   of   the   appellant<br>would result in diluting or constricting the expression “corporate<br>debtor”   occurring   in   Section   7   of   the   Code,   which   means   a<br>corporate person, who owes a debt to any person.  The “debt” of a<br>corporate person would mean a liability or obligation in respect of<br>a claim which is due from any person and includes a financial<br>debt and operational debt.  The expression “debt” in Section 3(11)<br>is   wide   enough   to   include   liability   of   a   corporate   person   on<br>account of guarantee given by it in relation to a loan account of<br>any person including not being a corporate person in the event of<br>default committed by the latter.   It would still be a “financial<br>debt” of the corporate person, arising from the guarantee given by<br>it, within the meaning of Section 5(8) of the Code.  <br>25. Notably, the expression “corporate guarantee” is not defined<br>in   the   Code.     Whereas,   expression   “corporate   guarantor”   is<br>defined in Section 5(5A) of the Code.  If the legislature intended to<br>exclude a corporate person offering guarantee in respect of a loan<br>secured   by  a   person   not  being  a   corporate  person,   from  the<br>expression “corporate debtor” occurring in Section 7, it would<br>have so provided in the Code (at least when Section 5(5A) came to<br>be inserted defining expression “corporate guarantor”).   It was<br>also open to the legislature to amend Section 7 of the Code and<br>replace   the   expression   “corporate   debtor”   by   a   suitable<br>expression.  It could have even amended Section 3(8) to exclude<br>liability arising from a guarantee given for the loan account of an<br>entity not being a corporate person.  Similarly, it could have also<br>amended expression “financial debt” in Section 5(8) of the Code,<br>“claim” in Section 3(6), “debt” in Section 3(11) and “default” in<br>Section   3(12).     There   is   no   indication   to   that   effect   in   the<br>contemporaneous legislative changes brought about.  <br>26. The expression “corporate debtor” is defined in Section 3(8)<br>which applies to  the Code as a whole.   Whereas, expression<br>“corporate guarantor” in Section 5(5A), applies only to Part II of<br>the Code.  Upon harmonious and purposive construction of the<br>governing provisions, it is not possible to extricate the corporate<br>person from the liability (of being a corporate debtor) arising on<br>account of the guarantee given by it in respect of loan given to a<br>person   other   than   corporate   person.     The   liability   of   the<br>guarantor is coextensive with that of the principal borrower.  The<br>remedy under Section 7 is not for recovery of the amount, but is<br>for   reorganisation   and   insolvency   resolution   of   the   corporate<br>debtor who is not in a position to pay its debt and commits<br>default in that regard.  It is open to the corporate debtor to pay<br>off the debt, which had become due and payable and is not paid<br>by the principal borrower, to avoid the rigours of Chapter II of the<br>Code in general and Section 7 in particular.  <br>27. In  law,  the  status   of  the  guarantor,  who   is  a  corporate<br>person,   metamorphoses   into   corporate   debtor,   the   moment<br>principal borrower (regardless of not being a corporate person)<br>commits default in payment of debt which had become due and<br>payable.   Thus, action under Section 7 of the Code could be<br>legitimately invoked even against a (corporate) guarantor being a<br>corporate   debtor.     The   definition   of   “corporate   guarantor”   in<br>Section 5(5A) of the Code needs to be so understood.<br>28. A  priori,  we find no substance in the argument advanced<br>before us that since the loan was offered to a proprietary firm<br>(not a corporate person),  action under Section 7 of the Code<br>cannot be initiated against the corporate person even though it<br>had offered guarantee in respect of that transaction.   Whereas,<br>upon default committed by the principal borrower, the liability of<br>the company (corporate person), being the guarantor, instantly<br>triggers the right of the financial creditor to proceed against the<br>corporate person (being a corporate debtor).   Hence, the first<br>question stands answered against the appellant.  </h4>', 'd00ed8771f93a230eae269f63821abf1.PNG', 'c501d4ded3c5a735580ec37170f37c55.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-26', 1, '', '', '2021-03-27 01:38:17', '2021-03-27 01:38:50');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2730, 'sRsc59ZvrxNYUfN0wMgVfjdmw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Criminal law. Call records regarding conversation between accused and deceased are inadmissible in evidence unless the Certificate required under Section 65B of the Evidence Act is produced. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Santhosh Dinakar Achargi Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 100027 of 2020 decided on 21 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.B. Prabhakara Sastry and Justice C.M. Joshi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The accused-appellant aggrieved by the judgment dated 21.11.2019 in Sessions Case No.92/205 passed by the learned I- Additional District and Sessions Judge, Dharwad sitting at Hubbali, for the offence punishable under section 302 of the Indian Penal Code 1860 (for short “the IPC’), has filed this appeal challenging the same. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The brief facts of the case are as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>The police inspector of Ashok Nagar Police Station, Hubballi filed the charge-sheet against the accused for the offence punishable under Section 302 of the IPC in Crime No.15/2015 of the said police station. It was alleged in the charge-sheet that on 07.03.2015 at about 12.30 p.m., while Ramadas Kudalkar (deceased) was in his Laxmi Jewelry shop at Bhavani Nagar, Hubballi, the accused with an intention to commit his murder came there in the guise of getting some silver ornaments polished and hit the deceased with a machete (Koyta), which is marked at M.O.2, over his head and in the result the deceased sustained head injury and his right thumb was also chopped in the incident. Immediately, he was shifted to KIMS Hospital and later to Balaji Hospital, where he succumbed to the injuries on the next day, i.e. on 08.03.2015 at about 2.35 p.m. The motive for the alleged offence is stated to be that the accused was indebted to the deceased to pay a sum of `60,000/- and when the deceased demanded the same repeatedly, the accused had a motive to commit the offence and therefore, entered the shop premises of the deceased and assaulted him with M.O.2 and committed crime.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>The points that arise for our consideration are as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space: pre;\">	</span>Whether the prosecution has proved that the death of decased-Ramadas Kudalkar due to injuries sustained on 07.03.2015 at about 12.30 p.m., is homicidal death and that the accused has caused the death of deceased- Ramadas Kudalkar on account of his enmity with him regarding money transaction and thereby committed the offence of culpable homicide amounting to murder, punishable under section 302 of the IPC? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ii)<span style=\"white-space: pre;\">	</span>Whether the judgment under challenge calls for any interference by this Court?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>The case of the prosecution as it unfolds is that the accused was having enmity with the deceased-Ramadas Kudalkar owing to the financial transaction between them. The prosecution contends that the repeated demand by the deceased about the sum of `60,000/- was the motive for the accused to commit the offence. Further, the prosecution contends that PW14-Ramachandra Niralagi, PW3-Smt.Deepa, who happens to be the wife of the deceased, PW11-Manjunath, who is police constable and allegedly recorded the video wherein the deceased has given the dying declaration, PW13-Manjunath, who happens to be the nephew of the deceased, and lastly PW26-Pushpalatha, who happens to be police inspector had heard the statement made by the deceased. Therefore, it is the case of the prosecution that under Section 32 of the Evidence Act, what has been heard by these witnesses cannot be a hearsay but it amounts to dying declaration by the deceased.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>60.<span style=\"white-space:pre\">	</span>Further, the evidence of PW23 as discussed supra discloses that the prosecution failed to elicit from her as to whether the deceased was capable of giving a statement when he was brought to the hospital. Even in the cross-examination also, this aspect has not been touched by the defence. The only aspect elicited in the cross-examination is that she (PW23) felt that the presence of an anesthetist would be required. There is no further elicitation as to whether anesthetist had come to casualty and had administered any sedative to the deceased. Therefore, the evidence of PW23 does not cast any doubt regarding the capability of the deceased to speak and give any statement. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>61.<span style=\"white-space:pre\">	</span>Under these circumstances the contention of the learned Senior counsel for the appellant that the deceased could not have made a dying declaration because of the heavy dosage of the medicine cannot be accepted. There is absolutely no suggestion made to PW23 that there was heavy dosage of medicine administered and therefore, he was not capable of giving any statement to the police or others. Even if we accept the contention of the learned counsel for the appellant/accused that the deceased was incapable of giving any statement on account of the heavy dosage administered, there is nothing on record to show that even prior to PW14 enquired the deceased, the injured was administered with any medicine. The argument of the learned counsel for the appellant does not hold water in respect of the testimony of PW14 in any way. Therefore, we are unable to accept the contention of the learned counsel appearing for the appellant that the deceased could not have made any dying declaration either before PW14 or PW3, PW4 and PW13. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>62.<span style=\"white-space:pre\">	</span>Added to this, PW11 has stated that on being informed by PW26, he went to the spot and from there he was asked to go to the hospital with a handycam. Therefore, he went to Ashok Nagar Police Station and then to the KIMS Hospital with a handycam and recorded the statement of the deceased Ramadas Kudalkar. Though the videograph in the CD’s at M.O.1 are not admissible in evidence due to non-production of certificate as required under Section 65B(4) of the Evidence Act, the oral testimony of PW11 regarding the ability of the deceased to speak and give a statement is admissible in evidence. There is no reason as to why PW11 would lie before the Court. His testimony has not been discredited in the cross-examination. Similarly, the testimony of PW14 who was not working under the Investigating Officer i.e. PW26 is also not discredited by virtue of cross-examination. There was no enmity between the police and the accused for any reason. Even a suggestion is also not forthcoming regarding the reason for hostile attitude of PW11 and PW14 as against the accused. Under these circumstances, the evidence of above witnesses though is hearsay, is admissible in evidence under Section 32 of the Evidence Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>65.<span style=\"white-space:pre\">	</span>Under these circumstances, we are unable to accept the argument of the learned counsel for the defence that the dying declaration of the deceased is inadmissible. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">66.<span style=\"white-space:pre\">	</span>The second aspect contended by the learned counsel for the appellant is that the dying declaration is tutored. In this regard, he relies on the decision in the case of Sultan Vs State of UP12 where in it is held that it is necessary to guard and ensure that the statement made by the deceased is not a result of tutoring, prompting or imagination. There is absolutely no evidence on record to show that the deceased was tutored while he was on the way to KIMS Hospital. It has come in the evidence of PW14 - Ramachandra as well as PW8 - Basheer that the deceased alone was shifted to the hospital in the autorickshaw. </font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">PW8 had no occasion to tutor the deceased. It is not the case of the prosecution that PW8 had any enmity with the appellant/accused. The PW 8 has stated that the deceased Ramadass did not tell anything to him and therefore he was treated hostile and he was cross examined by the prosecution. Therefore, it cannot be said that there was any occasion for anybody tutoring the deceased Ramadas Kudalkar. If at all there is any tutoring, it would have been by the family member who only met the injured in the hospital, much prior to which the deceased has disclosed about the assailant before PW14 at the place of occurrence itself. Therefore, this contention of the learned counsel for the accused that there was tutoring cannot be accepted.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>68.<span style=\"white-space: pre;\">	</span>In the case on hand, the evidence of PW26 discloses that soon after the information of the incident was received, she rushed to the hospital and continuously followed to record the dying declaration of the deceased through a competent person, but by time she visited the Balaji Hospital, the doctors at Balaji Hospital did not permit her to record the dying declaration as the condition of the deceased had worsened. The evidence of PW24- Dr.Krantikiran depicts that the treatment was not successful and therefore, on the next day, Ramadas died. Therefore, whatever that had been heard by PW26 as PW3, PW4 and PW14 gains importance and this Court analyzed their evidence in arriving at the conclusions. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>69.<span style=\"white-space: pre;\">	</span>A perusal of the impugned judgment of the Trial Court discloses that all these aspects have been considered by it. It has rightly come to the conclusion that the deceased-Ramadas was capable of speaking when PW3 and PW4 visited him in the KIMS Hospital. It has also considered that the testimony of the PW14, which corroborates with the say of PW3 and PW4. It has also considered the contentions raised before it by the defence in paragraph 143 of the judgment. Therefore, we do not find any reason to interfere with the conclusions reached by the learned Sessions Judge’s Court. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">70.<span style=\"white-space: pre;\">	</span>In view of the critical examination of the evidence on record and its thorough analysis, we have come to the conclusion that the prosecution has proved that the deceased was capable of speaking and he gave oral dying declaration before the PW14, PW3 and PW4 and their evidence cannot be discarded at all. For the foregoing reasons, the appeal is bereft of any merits.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The appeal is dismissed as devoid of merits.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'aa070e2346d4da1e4a5f7eb74db50724.jpeg', 'd2edb770a8303eb6e9d253b7aadb7148.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-27', 1, '', '', '2023-02-24 13:47:47', '2023-02-27 06:32:20'),
(634, 'XZbuCp196Ur9QSSjpist3e6PQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Minor’s property and minor’s undivided interest in the property. Necessity to obtain court permission - explained.  ', '<h4><b>Sale of minor’s property and minor’s undivided interest in the property – explained.&nbsp;</b><br>1. One must understand the difference between minor’s separate property and minor’s share in ancestral property. For example, X will his self acquired property in favour of his minor grandson Y, then after the death of X and during the minority of the grandson Y, his natural guardians cannot alienate the property without the permission of the court. Similarly, when a person dies leaving class-I heirs one of whom is a minor, the right of the minor over the property is already crystalised. This also becomes his absolute property. It is to be noted that regarding this absolute property of the minor, his father cannot act as Karta. He can only act as guardian. Take another example. X grandson dies leaving several ancestral properties. His son will inherit the property by survivorship. In this case Y, the grandson will have a share in the ancestral property by birth. During his minority, his father can alienate Y’s share in ancestral property for legal necessity. Permission of the court is not required in the later scenario.&nbsp;&nbsp;<br></h4><h4>2.It is necessary to extract few sections of Hindu Minority and Guardianship Act, 1956 and Hindu Succession Act, 1956.</h4><h4 style=\"margin-left: 25px;\"><b>Hindu Minority and Guardianship Act, 1956.</b><br><b>4. Definitions</b>.—In this Act,—<br>(a) “minor” means a person who has not completed the age of eighteen years;<br>(b) “guardian” means a person having the care of the person of a minor or of his property or of both his person and property, and includes—<br>(i) a natural guardian,<br>(ii) a guardian appointed by the will of the minor’s father or mother,<br>(iii) a guardian appointed or declared by court, and<br>(iv) a person empowered to act as such by or under any enactment relating to any court of wards;<br>(c) “natural guardian” means any of the guardians mentioned in Section 6.<br>6. Natural guardians of a Hindu minor.—The natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are—<br>(a) in the case of a boy or an unmarried girl—the father, and after him, the mother:<br>Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;<br>(b) in the case of an illegitimate boy or an illegitimate unmarried girl—the mother, and after her, the father;<br>(c) in the case of a married girl—the husband:<br>Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section—<br>(a) if he has ceased to be a Hindu, or<br>(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).<br>Explanation.—In this section, the expressions “father” and “mother” do not include a stepfather and a stepmother.<br><i>(Section 6 of the Act is not applicable in respect of undivided interest of a minor in the joint family property. M. Arumugam v. Ammaniammal, (2020) 11 SCC 103.)</i>&nbsp;<br><b>8. Powers of natural guardian</b>.—(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor’s estate; but the guardian can in no case bind the minor by a personal covenant.<br>(2) The natural guardian shall not, without the previous permission of the court,—<br>(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or<br>(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.<br>(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.<br>(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.<br>(5) The Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under Section 29 of that Act, and in particular—<br>(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of Section 4-A thereof;<br>(b) the court shall observe the procedure and have the power specified in sub-sections (2), (3) and (4) of Section 31 of that Act; and<br>(c) an appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court.<br>(6) In this section “court” means the city civil court or a district court or a court empowered under Section 4-A of the Guardians and Wards Act, 1890, within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate.<br><b>12. Guardian not to be appointed for minor’s undivided interest in joint family property.</b>—Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest:<br>Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest.<br><b>Hindu Succession Act, 1956.</b><br><b>6. Devolution of interest in coparcenary property.</b>—(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—<br>(a) by birth become a coparcener in her own right in the same manner as the son;<br>(b) have the same rights in the coparcenary property as she would have had if she had been a son;<br>(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,<br>and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:<br>Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.<br>(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of her by testamentary disposition.<br>(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu Family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survisorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,—<br>(a) the daughter is allotted the same share as is allotted to a son;<br>(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and<br>(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.<br>Explanation.—For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.<br>(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great grandson for the recovery of any debt due from his father, grandfather or great grandfather solely on the ground of the pious obligation under the Hindu law, or such son, grandson or great-grandson to discharge any such debt:<br>Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall effect—<br>(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or<br>(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.<br>Explanation.—For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.<br>(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.<br>Explanation.—For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.</h4><h4 style=\"margin-left: 25px;\"><b>8. General rules of succession in the case of males.</b>—The property of a male Hindu dying intestate shall devolve according to the provisions of this CHAPTER—<br>(a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule;<br>(b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule;<br>(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and<br>(d) lastly, if there is no agnate, then upon the cognates of the deceased.<br></h4><h4 style=\"margin-left: 25px;\">2. While section 6 refers to ancestral property, section 8 deals with property of a Hindu dying intestate. In the first case, the undivided share of a minor in the ancestral property can be sold by Karta for legal necessity. However, in the second case, where the minor gets the property as class-I heir, his/her property cannot be sold by natural guardian. The Supreme Court has held in M. Arumugam v. Ammaniammal, (2020) 11 SCC 103 that a property devolving under Section 8 of the Hindu Succession Act, is the individual property of the person who inherits the same and not that of the HUF.<br>3. The permission of Court is necessary under Sec. 8(2) of the Act only for sale of the minor’s separate property. Sec. 8(2) is not applicable to applicable in respect of the interest of the minor in a Joint Family property i.e. coparcenary property, when the sale is effected by the Karta. The only embargo placed with regard to alienation of the minor’s interest in the joint family&nbsp; property is found in the form of Sec. 11 &amp; 12 of the Act. Sec. 11 provides that a defacto guardian shall not deal with the minor’s property and Sec. 12 provides that where minor has an undivided interest in joint family property and the property is with an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest.</h4><h4 style=\"\">4. The direct judgment of the Supreme Court in this regard is Narayan Bal v. Sridhar Sutar, (1996) 8 SCC 54. At paragraph 5, the Supreme Court holds as follows;&nbsp;</h4><h4 style=\"margin-left: 25px;\">“5. With regard to the undivided interest of the Hindu minor in joint family property, the provisions afore-culled are beads of the same string and need to be viewed in a single glimpse, simultaneously in conjunction with each other. Each provision, and in particular Section 8, cannot be viewed in isolation. If read together the intent of the legislature in this beneficial legislation becomes manifest. Ordinarily the law does not envisage a natural guardian of the undivided interest of a Hindu minor in joint family property. The natural guardian of the property of a Hindu minor, other than the undivided interest in joint family property, is alone contemplated under Section 8, whereunder his powers and duties are defined. Section 12 carves out an exception to the rule that should there be no adult member of the joint family in management of the joint family property, in which the minor has an undivided interest, a guardian may be appointed; but ordinarily no guardian shall be appointed for such undivided interest of the minor. The adult member of the family in the management of the joint Hindu family property may be a male or a female, not necessarily the Karta. The power of the High Court otherwise to appoint a guardian, in situations justifying, has been preserved. This is the legislative scheme on the subject. Under Section 8 a natural guardian of the property of the Hindu minor, before he disposes of any immovable property of the minor, must seek permission of the court. But since there need be no natural guardian for the minor’s undivided interest in the joint family property, as provided under Sections 6 and 12 of the Act, the previous permission of the court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property. Thus Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property. The question posed at the outset therefore is so answered.\"</h4><h4>5. The Bombay High Court has clarified the legal position succinctly in Sandhya Rajan Antapurkar v. State of Maharashtra, 1999 SCC OnLine Bom 735 in the following words;</h4><h4 style=\"margin-left: 25px;\">“8. Section 8 of the Hindu Minority and Guardianship Act, 1956 prevents natural guardian of Hindu minor to transfer by sale, gift, exchange or otherwise any part of immovable property of the minor without previous permission of the Court. This restriction on the natural guardian in relation to the property of the minor applies only to the separate or absolute property of the minor. It does not include the minor\'s undivided share in the joint family property, as, under section 6, there cannot be a natural guardian in respect of such property which is specifically excluded.”</h4><h4>Therefore one must understand the clear distinction between “minor’s absolute property”, for example, through will or as class-I heir and minor’s share in ancestral property by birth. In the first case court permission is required to alienate the property. in the second case, no such permission is required by the karta if the property is alienated for legal necessity.&nbsp;</h4><div><br></div>', '7096e0e4cc899cf3990890126204547a.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-26', 1, '', '', '2021-03-27 04:37:43', '2021-03-27 04:37:43'),
(635, 'OtjwDsnskPMImVvpfVOyo8db1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. When plaint is returned for want of jurisdiction and re-presented before the proper court, there must be fresh valuation of the subject matter as on the date of re-presentation. Karnataka High Court. 25 March 2021', '<h4>Stono Craft Abrasivs vs The Karnataka Industrial Area Development Board and others. </h4><h4>Writ Petition 42700 of 2018 decided on 25 March 2021.</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Judgement Link</span>: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/374927/1/WP42700-18-25-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/374927/1/WP42700-18-25-03-2021.pdf</a><br><b>Relevant paragraph</b>s: The short question of law that falls for consideration  of this court in the case at hands is as under:<br><b style=\"background-color: rgb(255, 255, 0);\">When the plaint is returned for want of jurisdiction of the court, and later the same is re-presented before the jurisdictional court, whether the subject matter of the suit has to be valued as on the date the plaint was originally presented to the court which returned it  or  on  the date when it is re-presented before the jurisdictional court ?</b><br>2.<span style=\"white-space:pre\">	</span>The above question arises in the following fact matrix:<br>(a) There was an injunctive suit in O.S.No.2278/1990; it was filed by the petitioner; subsequently, the plaint was amended inter alia for a declaration of title; the City Civil Court, Bengaluru vide order dated 2.1.2008 held that the market value of the property in the year 2008 when the amendment of plaint was sanctioned, was Rs.2,66,085/- and therefore, had directed payment of deficit court fee; that was paid.<br>(b) Subsequently, the Court returned the plaint for want of territorial jurisdiction and that, petitioner re-presented the plaint in the Court of Civil Judge (Jr. Dvn), Doddaballapura; the plaint was again returned for want of pecuniary jurisdiction, value of the suit property  being  more than Rs.5,00,000/- and therefore, it was  re-  presented in the jurisdictional Court of Principal  Civil Judge, Doddaballapura.<br>(c) On the re-presentation of the plaint, the jurisdictional court at the instance of the respondent- defendants, having found the subject matter of the suit under-valued, directed the petitioner to pay the adequate court fee by valuing the suit property properly taking its market value as on the date the plaint was re-presented before it; the said order dated 24.8.2018, a copy whereof is at Annexure-G happens to be the subject matter of  challenge in this Writ Petition.<br>4. Having heard the learned counsel for the parties and having perused the petition papers, this court declines to grant indulgence in the matter  inasmuch  as  the  question of law framed for consideration is not much res integra, as rightly contended by learned counsel appearing for the third respondent; in EXL Careers and another vs Frankfinn Aviation Services Private Limited (2020) 12 SCC 667 after examining the provisions of Order VII Rule 10  r/w Rule 10A of CPC, 1908, what the Apex Court observed can  be summarized as under:</h4><h4 style=\"margin-left: 25px;\">If the court where the suit is  instituted lacks jurisdiction, the plaint shall be returned in terms of the provisions of  Order VII Rule 10 of the Code; the plaintiff can present it before the court having competence & jurisdiction; plaintiff is entitled to exclude the period during which he prosecuted the suit bonafide before the  court  that lacked jurisdiction, in view of Section 14 of the Limitation Act, 1963; he can also seek adjustment of the court fee paid on the plaint in the previous court(s); after the presentation before the court of competent jurisdiction, the plaint is to be considered  as  a  fresh  plaint  for all purposes and that the  trial  is  to  be conducted de novo.<br></h4><h4><b style=\"background-color: rgb(255, 255, 0);\">This summary provides a sufficient legal matrix to answer the framed question, to the effect that the plaintiff has to value the subject matter of the suit afresh as on the date he re-presents the plaint before the court having competence & jurisdiction.</b><br>5. The word “suit” is not defined by CPC, is true; however, section 26 states that a suit can be instituted by the presentation of a plaint or in any such other manner as may be prescribed by law; Order IV Rule 1 provides that every suit shall be instituted by presenting a plaint to the court or such officer appointed in that behalf; the word “suit” apart from some context, must be taken to mean a civil proceeding instituted by means of a plaint. The ordinary rule of litigation is that the rights of the parties stand crystallized on the date of it’s commencement and that the right to relief should be decided with reference to the date on which the dominant litis enters the portals of the court of competent jurisdiction; in the case at hands, the petitioner entered the court of competent jurisdiction only when he re-presented the plaint before the court below, as rightly contended by learned advocate for respondent no.3.<br>6. In the eyes of law, for the purpose of valuation & payment of court fee, normally a suit is said to have been instituted only when the plaint is presented before a competent court; if that be so, the subject matter of the suit has to be valued taking the date of re-presentation of  the plaint before the competent court and not the date(s) when it was wrongly presented before the court(s) that lacked jurisdiction.  Section  3(ii) of Karnataka  Court Fees  & Suits Valuation Act, 1958, defines “court” to mean any civil, revenue or criminal court having jurisdiction under any special or local law to decide questions affecting the rights of parties; thus, a litigant in order to have redressal    of his grievance has to approach the court having competence & jurisdiction; the petitioner was at fault in presenting the plaint earlier before the courts that lacked jurisdiction. His contention that the  fee paid on the plaint  at the earliest point of time should be  treated as adequate,   if countenanced amounts to permitting him to take the advantage of his fault; that cannot be done.<br>7. Thus, pursuit of justice, ideally speaking, should cost nothing to the pursuer; however, this ideal appears to take many more decades to translate into reality; the pragmatics of the life & litigation cost the State and  thus,  the need for levying of court fee on the litigants, is legislatively justified; the dicta  that  “justice  is  free”,  cannot be taken to mean that a litigant needs to pay  no court fee at all; if he emerges victorious in the legal battle, the fee paid by him may be recovered from the other  side  in the form of costs.<br>In the above circumstances, the impugned order being consistent with the principles emerging from the discussion supra, cannot be faltered and therefore, the writ petition being devoid of merits, is liable to be dismissed and accordingly, it is, costs having been made easy.<br></h4>', '010518f14bc0fc9b90ad3cceb27b728c.jpg', '17027a01cc61cea8c08459d01d513121.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-25', 1, '', '', '2021-03-28 17:06:50', '2021-03-28 17:23:27'),
(636, '7dnnGY4fs8ZGPrEmHoN6rqfDn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Writ Jurisdiction. Petition under Article 226 would NOT lie for issuance of a writ of Habeas Corpus for tracing missing persons. Only in cases of illegal detention or custody, such writ can be issued. Karnataka High Court. 3 February 2021', '<h4>Venkataramu vs The State of Karnataka and others. </h4><h4>Writ Petition Habeas Corpus 99 of 2020 decided on 3 February 2021. </h4><h4>Justice Aravind Kumar and Justice Pradeep Singh Yerur. </h4><h4>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/368062/1/WPHC99-20-03-02-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/368062/1/WPHC99-20-03-02-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:This petition has been filed seeking for a writ of habeas corpus being issued to direct respondents to produce Mr.Nagaraju who is the son of petitioner alleging he is in illegal custody of some unknown persons. </h4><h4>3....In fact, in the&nbsp; first complaint which was&nbsp; filed on 22.10.2019, it is specifically stated that son of the petitioner was missing.<br>4. The Coordinate Bench of this Court in the case of Sudharani vs The State of Karnataka reported in ILR 2016 KAR 731 has held that the power under Article 226 is not to be exercised for tracing a missing person. It has been further held at para 5 as under:</h4><h4 style=\"margin-left: 25px;\">“5. In the present case, it is not the case of the petitioner that her husband has been illegally detained by the State or&nbsp; by&nbsp; any private individual. Accordingly, no writ of habeas corpus could be issued to the respondents.”</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">5. It is a trite law that a petition under Article 226 of the Constitution of India would not lie for issuance of a writ of Habeas Corpus for tracing missing persons. It is only where applicants/petitioners had alleged that missing persons is in illegal detention or custody of any other person or authority, such writ can be issued and not&nbsp; in case of a person who is missing.</b><br>6.Even otherwise, in the facts obtained in the present case, counter affidavit filed by the&nbsp; third&nbsp; respondent would indicate that all reasonable steps as expected of the Investigating Officer has been taken. It is needless to state that if any information is being furnished by the petitioner to third respondent for the purposes of investigation namely, to trace missing son of petitioner, said Investigating Officer would necessarily take into consideration such material or lead which would assist in the investigation and in the event of such leads given by petitioner or any of his family members, the Investigating Officer would be required to consider the same and&nbsp; proceed with the investigation. Since on the basis of the complaint lodged by the petitioner on 22.10.2019 (Annexure-A), second respondent-Police Station having registered Crime No.256/2021, said investigation shall be taken to its logical end and a report shall be filed before&nbsp; the jurisdictional Magistrate. However, we direct third respondent-Police Station to furnish a copy of the report so filed to the petitioner under due acknowledgment and on such report being furnished to the petitioner, he would be at liberty to take steps as provided under law.&nbsp;<br>10. With these observations, we dispose of this writ petition.<br><br></h4><div><br></div>', '5e968ed9f00a55e407512491dd5f2509.PNG', '76856ee200d4e141867371dc84197fb4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-03', 1, '', '', '2021-03-28 18:00:55', '2021-03-28 18:00:55');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(637, 'hjmkGQ8Hfm4GvWgHiilo7GI1J', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Marriage Act, 1955. Adultery. Standard of proof is preponderance of probability and not beyond reasonable doubt. It cannot be proved by direct evidence and inference can even be drawn by circumstantial evidence. Karnataka High Court. 25 October 2019', '<h4>K.C.Saritha vs A.N. Vijaykumar. Miscellaneous First Appeal 2301 of 2013 decided on 25 October 2019. Justice Alok Aradhe and Justice P.G.M. Patil. Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/301889/1/MFA23601-13-25-10-2019.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/301889/1/MFA23601-13-25-10-2019.pdf </a><br></h4><h4>Relevant paragraphs: <b style=\"background-color: rgb(255, 255, 0);\">11. <span style=\"font-size: 1.3125rem;\">We have considered the submissions made on both sides and have perused  the  records. It is well settled preposition of law that onus lies on the person who alleges the adultery and the standard of proof is the same  as  in  a  civil case i.e. preponderance of probability and not beyond reasonable doubt. It is equally well settled in law that adultery cannot be proved by </span>way of direct evidence and an inference with regard to the same can even be drawn by circumstantial evidence.</b> It is well settled in law that section 65-A and 65-B of the Evidence Act cannot be held to  be  a complete code on  the subject and its authenticity and proceed for its admissibility depends on the fact situation, such as whether person producing the aforesaid evidence is in a position  to  furnish  the certificate under Section 65-B  (4)  of  the Evidence Act. It is equally well settled legal preposition that requirement of production of certificate under Section 65-B(4) of the Evidence Act is procedural in nature  and  can  be  relaxed by the Court wherever interest of  justice so requires. In this connection, reference may be made to the decision of  the Hon’ble Supreme Court in Mohemmad Ajmal Amir  Kasab  v. State of Maharashtra, 2012 (9) SCC 1. It is equally well settled preposition of law that electronic evidence by way  of  primary  evidence is covered under Section 62 of the  Evidence Act  to which procedure prescribed under Section 65- B of the Evidence Act is not applicable. However, in case, secondary evidence is  adduced with regard to the electronic evidence,  the requirement contained in Section 65-B of the Evidence Act is required to be complied with (see Anvar P. V. v. P. K. Basheer and others (2014) 10 SCC 473.</h4><h4>12. The aforesaid decisions were  referred to with approval in  the  case  of  Shafi Mohammad (supra) and it was held that if electronic evidence is authentic  and  relevant, the same can certainly be  admitted  subject  to the Court being satisfied about its authenticity and procedure for its admissibility may depends on the fact situation as to whether the person producing such evidence is in a  position  to furnish certificate under Section 65-B(4) of the Evidence Act. However it has been held that the applicability of requirement of furnishing certificate being procedural in nature can be relaxed by the Court wherever interest of justice so justifies.<br>13. In R. vs. Maqsud Ali, (1965)2 All ER 464 and R vs. Robson (1972) 2 ALL ER  699  and extracts from American Law, (American Jurisprudence 2d (Vol 29) Page 494), which was quoted with approval in Ram Singh and others vs. Col. Ram Singh, 1985 (Supp) SCC 611 it was observed that it will be wrong to deny to the law of evidence advantages to be gained  by new techniques and new devices,  provided the accuracy of the recording can be proved. It was further observed that such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. Similar view has been taken in Tukaram S Dighole vs. Manikrao Shivaji Kokate, (2010) 4 SCC 329, wherein it has been held that new techniques and  devices  are  order of the day and though such devices  are susceptible to tampering, no exhaustive rule could be laid down by which the admission  of such evidence may be judged.<br>18. It is trite law that a burden to prove a fact lies on a party who asserts the same. In the instant case, the appellant has asserted that the DVDs are morphed. However, it is pertinent to mention here that the appellant herein  has  not led any evidence in rebuttal to show that the contents of the DVDs are  morphed.  The appellant could have filed an application for referring the DVDs to any forensic laboratory to ascertain whether the  images  shown  therein have been morphed or not. However, no  such attempt has been made by  the  appellant. In other words, no rebuttal has been made by the appellant. So far as evidence of R.W.3 namely Nagashree, the daughter of the parties is concerned, she has only stated in her  evidence that she and her sister were stayed at Bellary  along with their mother from 04.06.2008 to 09.06.2008. However, she has  not  stated  that the respondent was also present in the house at Bellary during the aforesaid days. Therefore, the fact that the respondent, between 04.06.2008 to 09.06.2008 was away  at  Bangalore  is established even from her evidence.<br>19. It is also pertinent to  mention  here that so far as the case of the appellant, that the respondent used to deal with pornographic material and had forced her to have sex with his friends or to act in pornographic films is concerned, suffice it to say that no  such  complaint was made by the appellant  at  any point of time to anyone. Therefore, the aforesaid version of the appellant cannot be believed.<br>20. At this stage, we  deem  it  appropriate to mention that admittedly Hindu Marriage (Karnataka) Rules,  1956 have  not  been amended, which require an adulterer to be necessarily implead as co-respondent. Therefore, the non-impleadment of the alleged adulterer shall have no impact on the proceeding. The Division Bench of this Court in the case of Arun Kumar Agarwal v. Radha Arun and another, 2004 (1) KCCR 171 has held that  alleged adulterer is an appropriate party. However, as stated supra, the  absence  of  the  alleged adulterer would not have fatal impact on the proceeding. The Family Court, on the basis of meticulous appreciation of evidence on record has granted the decree for divorce.<br>21. In view of the preceding analysis, we agree with the view  taken by  the  Family Court.  In the result, the appeal fails and is hereby dismissed.<br>Sd/- JUDGE<br><br><br> <br><br>yan<br> <br>Sd/- JUDGE</h4><div><br></div>', 'ab440955806c2991a6b0c13a674f61a6.PNG', '78fadcaf6c0647999258f8a56b80da85.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2019-10-25', 1, '', '', '2021-03-29 02:13:06', '2021-03-29 02:16:32'),
(638, 'EUdpuojjpqQzhaAw5cfIwWfmx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'IPC. Section 279, 337 and 338. Rash driving causing grievous hurt. Karnataka High Court cites death of the complainant and humanitarian approach of the accused Senior Advocate, owner, to quash criminal proceedings. 28 January 2021', '<h4>S.S.Naganand vs The State of Karnataka and another. </h4><h4>Criminal Petition 6652 of 2013 decided on 28 January 2021. <br><span style=\"background-color: rgb(255, 255, 0);\">Judgment Link</span>: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/366425/1/CRLP6652-13-28-01-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/366425/1/CRLP6652-13-28-01-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: The petitioner is arraigned as an accused in C.C.No.108/2013 arising  out  of  Cr.No.346/2012 registered by the Chickballapura Rural P.S. for offences punishable under Sections 279, 337, 338 of IPC, 1860 read with Section 134(A)(B), 187 of the IMV Act. The petitioner is seeking to quash the criminal proceedings initiated against him in C.C.No.108/2013 pending before Court of the Senior Civil Judge & CJM, Chickballapur.<br></h4><h4>3. It is the case of the prosecution that, based upon the complaint filed by the complainant Venkateshappa with the Chickballapur Rural P.S. on 30.08.2012 at around 10.30 a.m. stating that on 22.07.2012, the complainant Venkateshappa and his daughter Chikkanarayanamma were returning home in a TVS moped bearing No.KA-05-HJ-9344 after meeting an astrologer at Devastanadahosahalli near Chickaballapur. While they were on their way to home on NH-7 at around 3.00 p.m., near Doddapylagurki Gate, while he was taking ‘U’ turn slowly, that a car bearing No.KA-01/MG-2383 which was coming from Hyderabad side in a rash and negligent manner, had hit on the TVS moped.  As a result   of that, the complainant Venkateshappa had sustained accidental injuries on his left elbow and left leg and also some abrasions on his right palm,  forehead, left arm and  on the back. Similarly, his daughter Chikkanarayanamma had also sustained abrasion on both her knees.  The  persons who were present nearby the scene of crime had secured an ambulance and had sent both of them to Chickaballapur Government Hospital and after the Doctor there had provided first aid to them, on the  Doctor’s  advice, they were shifted to Bowring Hospital, Bangalore,   in order to provide better treatment. But the driver of the offending car and its owner had approached the second respondent and paid him a sum of Rs.40,000/- for their treatment and also assured them of bearing the medical expenditure. But subsequently on filing a complaint by the complainant, the case in Cr.No.346/2012 came to  be  registered  by  the Chickaballapur Rural P.S. and the case was taken up by the Investigating Agency and laid a charge-sheet against the accused in C.C.No.108/2013. This is the pith and substance of the allegations made in the complaint and also reflected in the FIR said to have been recorded by the Chickaballapur Rural P.S.<br></h4><h4>9. In the context of the contentions taken by the learned Senior counsel for the petitioner and so also the counter made by the learned HCGP for the State, it is relevant to refer that the Chickmagalur Rural P.S. have recorded an FIR by registering the case in Cr.No.346/2012 on 30.08.2012 for offences under Sections 279, 337, 338 of the IPC, and Section 134 (A) (B) and Section 187 MV Act. But the incident  had  taken place on 22.07.2012 at around 15 hours. But  after  a  lapse of several days, the injured Venkateshappa who is cited as the complainant in the charge-sheet and also arraigned as Respondent No.2 herein, filed a complaint on 30.08.2012 at around 10.30.a.m. But it is an oral complaint made by him before the Station House Officer, Chickmagalur Rural P.S. and that complaint was reduced into writing as contemplated under Section 154 of the Cr.P.C. and then proceeded with the case for investigation and laid a charge-sheet against the accused in C.C.No.108/2013. <b style=\"background-color: rgb(255, 255, 0);\">Whereas in the instant case, Venkateshappa who is arraigned as a complainant and also cited as a witness in the charge-sheet laid by the Investigating Agency before the court having jurisdiction to deal the matter. Now, Venkateshappa is no more. But the said Venkateshappa while he was admitted in Bowring Hospital, Bangalore, he required to be provided better treatment to save his life in view of the fact of having suffered accidental injuries. The said expenses incurred at Rs.40,000/- was borne by the petitioner, which reveals his humanitarian consideration and this is also a contention taken by the learned Senior counsel for the petitioner in this petition seeking intervention under Section 482 of the Cr.P.C. </b>But the prosecution has mainly bank upon the evidence of the injured Venkateshappa in so far as the accidental case. Therefore, it is relevant to refer the ratio of reliance in the case of State of Karnataka vs L. Muniswamy and others., reported in AIR 1977 SC 1489, wherein it is observed as under:</h4><h4 style=\"margin-left: 25px;\">“In the, exercise of this whole some power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the; ends of justice require that the proceeding ought to be quashed. The saving of the High Court\'s inherent powers, both in civil and criminal matters, is designed to. achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the, ends of mere law though justice has got to be administered according to laws made by the, legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction”.</h4><h4>This observation is also referred by  the  Apex  Court in Anand Kumar Mohattas case AIR 2019 SC 210 at para Nos.16 and 28 respectively, referred to supra.</h4><h4>Accordingly, I proceed to pass the following:<br>ORDER<br>Petition filed by the  petitioner/accused  under  Section 482 of Cr.P.C  is  hereby  allowed.  Consequently, the proceedings in C.C.No.108/2013 pending before the Court of the Sr. Civil  Judge  &  CJM,  Chickaballapur  arising out of Cr.No.346/2012 are hereby quashed.<br><br><br></h4><div><br></div>', '4308a884eb8fd3d02d42f1a6649cda2c.jpg', 'c2f2a18dc2e0d38aad1ebd68619727f8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-01-28', 0, '', '', '2021-03-29 02:45:23', '2021-03-29 09:02:49'),
(639, 'DHW2QRwFpLiVBpwFWBbS88OQa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Audio recording is a document within the meaning of Section 3 of the Evidence Act. It has be proved by satisfactory evidence ruling out possibilities of tampering. Supreme Court.  5 February 2010', '<h4>Tukaram S. Dighole v. Manikrao Shivaji Kokate, </h4><h4>Civil Appeal 2928 of 2008†, decided 5 February 2010. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/jonew/judis/35978.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/35978.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 23. The second issue, in our opinion, is of greater importance than the first one. It is well settled that tape-records of speeches are “documents” as defined in Section 3 of the Evidence Act and stand on no different footing than photographs. (See Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra4, SCC p. 26, para 19.) There is also no doubt that the new techniques and devices are the order of the day. Audio and videotape technology has emerged as a powerful medium through which a first-hand  information about an event can be gathered and in a given situation may prove to be a crucial piece of evidence. At the same time, with fast development in the electronic techniques, the tapes/cassettes are more susceptible to tampering and alterations by transposition, excision, etc. which may be difficult to detect and therefore, such evidence has to be received with caution. Though it would neither be feasible nor advisable to lay down any exhaustive set of rules by which the admissibility of such evidence may be judged but it needs to be emphasised that to rule out the possibility of any kind of tampering with the tape, the standard of proof about its authenticity and accuracy has to be more stringent as compared to other documentary evidence.<br>24. In Yusufalli Esmail Nagree v. State of Maharashtra5 this Court observed that since the tape-records are prone to tampering, the time, place and accuracy of the recording must be proved by a competent witness. It is necessary that such evidence must be received with caution. The court must be satisfied, beyond reasonable doubt that the record has not been tampered with.<br>25. In R. v. Maqsud Ali6 it was said (QB p. 701 D-E) that it would be “wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded [are] properly identified…. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case.”<br>26. In Ziyauddin Burhanuddin Bukhari4, relying on R. v. Maqsud Ali6, a Bench of three Judges of this Court held that the tape-records of speeches were admissible in evidence on satisfying the following conditions: (SCC p. 26, para 19)<br>“(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.<br>(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.<br>(c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.”<br>Similar conditions for admissibility of a tape-recorded statement were reiterated in Ram Singh v. Col. Ram Singh7 and recently in R.K. Anand v. Delhi High Court8.<br>27. Tested on the touchstone of the tests and safeguards enumerated above, we are of the opinion that in the instant case the appellant has miserably failed to prove the authenticity of the cassette as well as the  accuracy of the speeches purportedly made by the respondent. Admittedly, the appellant did not lead any evidence to prove that the cassette produced on record was a true reproduction of the original speeches by the respondent or his agent. On a careful consideration of the evidence and circumstances of the case, we are convinced that the appellant has failed to prove his case that the respondent was guilty of indulging in corrupt practices.<br>28. For the aforegoing reasons, we see no merit in this appeal. We, therefore, affirm the decision of the Tribunal and dismiss the appeal with costs, quantified at Rs 20,000.<br><span style=\"background-color: rgb(255, 255, 0);\">Judgments referred:</span><br>† From the Judgment and Order dated 25-1-2008 of the High Court of Judicature of Bombay in Election Petition No. 13 of 2004<br>1 (2007) 4 SCC 306<br>2 (1975) 4 SCC 769<br>3 (1999) 9 SCC 386<br>4 (1976) 2 SCC 17<br>5 AIR 1968 SC 147 : 1968 Cri LJ 103 : (1967) 3 SCR 720<br>6 (1966) 1 QB 688 : (1965) 3 WLR 229 : (1965) 2 All ER 464 (CCA)<br>7 1985 Supp SCC 611<br>8 (2009) 8 SCC 106 : (2010) 2 SCC (Cri) 563<br></h4><p><br></p>', '0ade7dc37e52af79577297292e030097.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2010-02-05', 1, '', '', '2021-03-30 00:56:22', '2021-03-30 01:09:23'),
(640, 'CI2PYSHhti2W26wHmIBl1EuXV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sting Operation and Honey Trapping. Legal position in India. Crime by sting operator does not stand obliterated or extinguished merely because its commission is claimed to be in public interest. Supreme Court.  24 April 2014', '<h4>Rajat Prasad v. Central Bureau of Investigation. </h4><h4>Criminal Appeal 747 of 2010, decided on 24 April 2014. </h4><h4>Justice P. Sathasivam, Justice Ranjan Gogoi and Justice N.V. Ramana&nbsp;</h4><h4> </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/jonew/judis/41457.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/41457.pdf</a></h4><h4>Reported in (2014) 6 SCC 495 <i>(See paragraph 12 below)</i></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Full Judgment</span>: Justice Ranjan Gogoi .— The refusal of the Delhi High Court to exercise its inherent jurisdiction under Section 482 CrPC to quash the criminal charges framed against the appellant-accused has been challenged in the present appeals. Specifically, the appellants, Rajat Prasad and Arvind Vijay Mohan who are the sixth and fourth accused respectively in CC Case No. 28 of 2005 (hereinafter referred to as “A-6 and A-4”) in the Court of the learned Special Judge, CBI, Delhi had assailed the order dated 24-4-2007/25-4-2007 passed by the learned trial court framing charges against them under Section 120-B IPC read with Section 12 of the Prevention of Corruption Act, 1988 (hereinafter for short “the Act”) before the High Court. The High Court by its order dated 30-5-2008 [Bhupinder Singh Patel v. CBI, (2008) 151 DLT 37] refused to interfere with the said order of the learned trial Judge. Hence, the present appeals by special leave.<br>2. The relevant facts which will require enumeration can be summed up as follows: on 16-11-2003 in the Delhi edition of the Indian Express a news item under the caption “Caught on Tape: Union Minister Taking Cash Saying Money is No Less Than God” had appeared showing visuals of one Dalip Singh Ju Dev (deceased first accused) (A-1), the then Union Minister of State for Environment and Forests, receiving illegal gratification from one Rahul alias Bhupinder Singh Patel (third accused) (A-3) in the presence of the Additional Private Secretary to the Minister, one Natwar Rateria (second accused) (A-2). Immediately on publication of the abovesaid news item a preliminary enquiry was registered by the ACU II of the Central Bureau of Investigation, New Delhi and on conclusion of the said preliminary enquiry an FIR dated 19-12-2003 was filed alleging commission of offences under Section 12 of the PC Act, 1988 read with Section 120-B IPC by the present appellants (A-4 and A-6).<br>3. The aforesaid FIR was challenged in a proceeding before the Delhi High Court registered and numbered as Crl. Misc. Case No. 59 of 2004. It appears that there was no interim restraint on the investigation pursuant to the FIR filed. While the investigation was in progress, Crl. Misc. Case No. 59 of 2004 came to be dismissed by the Delhi High Court by order dated 10-11-2004 [Bhupendra Singh Patel v. CBI, Criminal Misc. Case No. 59 of 2004, order dated 10-11-2004 (Del)] . As against the said order dated 10-11-2004 [Bhupendra Singh Patel v. CBI, Criminal Misc. Case No. 59 of 2004, order dated 10-11-2004 (Del)] , SLP (Crl.) No. 6366 of 2004 was instituted by the fourth accused as well as other accused before this Court. However, as on completion of investigation a charge-sheet had been filed on 5-12-2005, the aforesaid SLP was closed by order dated 23-11-2007 [Arvind Vijaymohan v. State, SLP (Cri) No. 6366 of 2004, order dated 23-11-2007 (SC), wherein it was directed:“Since charge has already been framed in the proceedings, these petitions, which were directed against the FIR have become infructuous. Accordingly, the special leave petitions are disposed of with the aforesaid observations. It is, however, made clear that this order will not prevent the petitioners from making submissions made in these petitions in later proceedings.”] as having become infructuous.<br>4. From the charge-sheet dated 5-12-2005 filed by CBI before the competent court, the gravamen of the allegations against the appellant-accused appears to be that one Amit Jogi (Accused 5), son of Ajit Jogi, who was then the Chief Minister of the State of Chhattisgarh, had hatched a conspiracy along with A-3 to A-6 to execute a sting operation showing receipt of bribe by the Union Minister of State for Environment and Forests (A-1) so as to discredit him on the eve of the elections to the State Assembly of Chhattisgarh and thereby bring political advantage to Shri Ajit Jogi who was a rival of the Union Minister. According to the prosecution, as per the conspiracy hatched, A-5 along with other co-conspirators had initially brought in one Manish Rachhoya (PW 23), a close friend of A-5, as a representative of a Calcutta based mining company which had pending work in the Ministry of Environment and Forests as one of the conspirators. A-5 had requested one Shekhar Singh (PW 22) to introduce the aforesaid Manish Rachhoya to A-1, which was agreed to. The said meeting was to be held in Hotel Taj Palace, New Delhi and to effectuate the said purpose A-6 had booked Suite No. 151 in Hotel Taj Palace, New Delhi in the fictitious name of Manish Sarogi. According to the prosecution, Manish was introduced to Shekhar Singh. However, subsequently Manish developed cold feet and decided to disassociate himself from the plan hatched by A-5. However, on instructions of A-5, Manish had informed A-1 that as the deal had certain technical parameters, in future, his partner Rahul (A-3) would be discussing the matter with A-1.<br>5. The further case of the prosecution, as alleged in the charge-sheet, is that at this stage Rahul alias Bhupinder Singh Patel (A-3) was roped into the conspiracy. He stayed in Suite No. 151 in Hotel Taj Palace, New Delhi for a number of days and had meetings both with A-1 and A-2 on several occasions in the said hotel and had successfully befriended them. According to the prosecution, on 5-11-2003, Rahul (A-3) had checked into Room No. 822 in Hotel Taj Mahal, Man Singh Road, New Delhi which was booked under the fictitious name of Raman Jadoja. It appears that on the same day i.e. 5-11-2003, A-3 requested A-1 and A-2 to visit him in the said hotel room. According to the prosecution, A-4 had arranged for installation of hidden video recording equipment in the sitting room of the said suite in Taj Mahal Hotel, Man Singh Road, New Delhi through one Manoj Hora, a dealer in the electronic products. In the late evening of 5-11-2003 A-1 and A-2 reached the abovesaid hotel and went to Room No. 822, and they were entertained. Wide-ranging discussions between A-3 and other two accused (A-1 and A-2) were held on different matters including matters relating to certain mining projects in the States of Orissa and Chhattisgarh which were pending in the Ministry.<br>6. According to the prosecution, both A-1 and A-2 had assured A-3 that necessary assistance in getting the pending proposals cleared will be offered. Thereafter, currency notes amounting to Rs 9 lakhs were handed over by A-3 to A-1 who accepted the same and carried the same out of the hotel in a laundry bag offered by A-3. The video recording of the entire incident along with audio recording of the conversations exchanged was secretly done and the same was subsequently released to the media. The video and audio cassette recording of the event was sent for analysis and report thereof was received from FSL, Hyderabad. It is on these facts that the prosecution had alleged commission of the offence under Section 7 of the Act against A-1 and offences under Section 120-B IPC read with Section 7 of the Act against A-2. Insofar as the other accused including the present appellant-accused are concerned, according to the prosecution, they had committed offences punishable under Section 12 of the Act read with Section 120-B IPC. As already noticed, pursuant to the aforesaid charge-sheet filed, the learned trial court had framed charges against the appellant-accused under Section 120-B IPC read with Section 12 of the PC Act.<br>7. We have heard Shri Uday U. Lalit and Shri P.S. Narasimha, learned Senior Counsel for the appellant in Criminal Appeals Nos. 747 of 2010 and 748 of 2010 respectively and Shri P.P. Malhotra, learned Additional Solicitor General for the respondent.<br>8. The learned counsel for the appellants have placed before us the relevant part of the charge-sheet mentioning the claim raised by A-3, during the investigation, that the act of payment of illegal gratification to A-1 and the secret video recording of the same was prompted by a journalistic desire to expose corruption in public life. It is contended that the present case raises an issue of great public importance, namely, the legality of a sting operation prompted by overwhelming public interest. According to the learned counsel, the said operation had been carried out to reveal the murky deeds in seats of governmental power. If an intention to commit any such criminal act is to be attributed to a citizen/journalist who had undertaken a sting operation, public interest would be severely jeopardised. It is also argued that in the charge-sheet filed it is mentioned that the investigations had revealed that the entire operation was carried out to disgrace the first appellant prior to the elections to the Chhattisgarh State Assembly and that the motive behind the operation was to derive political mileage in favour of the father of A-5 who was the then Chief Minister of the State of Chhattisgarh. It is contended that if the above was the aim of the sting operation, surely, no offence under Section 12 of the Act or 120-B IPC is even remotely made out against the appellant-accused.<br>10. The learned counsel for the appellant-accused have, by referring to the specific allegations mentioned in the charge-sheet, submitted that even if the said allegations are accepted to be correct no criminal offence is made out against either of the appellant-accused. In this regard it is pointed out by Shri Narasimha that except for the allegation of arranging the video equipment which was installed in the hotel room there is no other material against A-4. The said fact, by itself, is not enough to even prima facie attract the offence of criminal conspiracy. Insofar as A-6 is concerned, Shri Lalit, learned Senior Counsel has urged that the role attributed to the said accused is only in respect of booking of the room in Hotel Taj Palace where Manish Rachhoya (PW 23) had stayed. However, as the aforesaid Manish Rachhoya had withdrawn from the plan and, thereafter, no specific role in the alleged conspiracy is attributed to A-6, the prosecution insofar as A-6 is concerned is wholly unsustainable.<br>11. In reply, Shri P.P. Malhotra, learned Additional Solicitor General has submitted that the sting operation involved the giving of bribe to A-1 who was a Union Minister at the relevant point of time and in return certain favours were sought. While the motive behind the act of videographing the incident may have been to derive political mileage by discrediting A-1, the giving of bribe amounts to abetment within the meaning of Section 107 IPC. The said criminal act would not stand obliterated by what is claimed to be the pious desire of the accused to expose corruption in public life. The learned Additional Solicitor General has further submitted that the evidence in the case is yet to be recorded. Whether the exchange of money for favours in mining projects in Orissa and Chhattisgarh was a pretence or otherwise i.e. real and what were the true intentions behind the operation carried out are matters which will be clear only after evidence in the case is recorded. The aforesaid stage must be allowed to be reached and completed, the learned Additional Solicitor General has urged. It is also urged that the power to quash a criminal charge ought to be exercised within well-defined parameters, none of which exists in the present case.<br><b style=\"background-color: rgb(255, 255, 0);\">12. The expression “sting operation” seems to have emerged from the title of a popular movie called The Sting which was screened sometime in the year 1973. The movie was based on a somewhat complicated plot hatched by two persons to trick a third person into committing a crime. Being essentially a deceptive operation, though designed to nab a criminal, a sting operation raises certain moral and ethical questions. The victim, who is otherwise innocent, is lured into committing a crime on the assurance of absolute secrecy and confidentiality of the circumstances raising the potential question as to how such a victim can be held responsible for the crime which he would not have committed but for the enticement. Another issue that arises from such an operation is the fact that the means deployed to establish the commission of the crime itself involves a culpable act.</b><br>13. Unlike US and certain other countries where a sting operation is recognised as a legal method of law enforcement, though in a limited manner as will be noticed hereinafter, the same is not the position in India which makes the issues arising in the present case somewhat unique. A sting operation carried out in public interest has had the approval of this Court in R.K. Anand v. High Court of Delhi [(2009) 8 SCC 106 : (2010) 2 SCC (Cri) 563] though it will be difficult to understand the ratio in the said case as an approval of such a method as an acceptable principle of law enforcement valid in all cases. Even in countries like the United States of America where sting operations are used by the law-enforcement agencies to apprehend suspected offenders involved in different offences like drug trafficking, political and judicial corruption, prostitution, property theft, traffic violations, etc. the criminal jurisprudence differentiates between “the trap for the unwary innocent and the trap for the unwary criminal” (per Warren, C.J. in Sherman v. United States [2 L Ed 2d 848 : 356 US 369 (1958)] ) approving situations where government agents “merely afford opportunities or facilities for the commission of the offense” and censuring situations where the crime is the “product of the creative activity” of law-enforcement officials (Sorrells v. United States [77 L Ed 413 : 287 US 435 (1932)] ). In the latter type of cases the defence of entrapment is recognised as a valid defence in USA. If properly founded such a defence could defeat the prosecution.<br>14. A somewhat similar jurisprudence recognising the defence of entrapment in sting operations has developed in Canada where the defence available under specified conditions, if established, may result in “stay” of judicial proceedings against the accused the effect of which in the said jurisdiction is a termination of the prosecution [R. v. Regan [(2002) 1 SCR 297 (Can SC)] (para 2)].<br>15. In R. v. Mack [(1988) 2 SCR 903 (Can SC)] , it has been explained by the Canadian Supreme Court that entrapment occurs when (a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry, and (b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence. The following factors determine whether the police have done more than provide an opportunity to commit a crime:<br>(1) the type of crime being investigated and the availability of other techniques for the police detection of its commission.<br>(2) whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;<br>(3) the persistence and number of attempts made by the police before the accused agreed to committing the offence;<br>(4) the type of inducement used by the police including deceit, fraud, trickery or reward;<br>(5) the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity;<br>(6) whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;<br>(7) whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;<br>(8) the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves;<br>(9) the existence of any threats, implied or express, made to the accused by the police or their agents;<br>(10) whether the police conduct is directed at undermining other constitutional values.<br>16. In the United Kingdom the defence of entrapment is not a substantive defence as observed in R. v. Sang [1980 AC 402 : (1979) 3 WLR 263 : (1979) 2 All ER 1222 (HL)] by the House of Lords: (AC p. 268)<br>“… The conduct of the police where it has involved the use of an agent provocateur may well be a matter to be taken into consideration in mitigation of sentence; but under the English system of criminal justice, it does not give rise to any discretion on the part of the Judge himself to acquit the accused or to direct the jury to do so, notwithstanding that he is guilty of the offence.”<br>17. However, a shift in judicial reaction appears to be emerging which is clearly discernible in R. v. Looseley [(2001) 1 WLR 2060 : (2001) 4 All ER 897 : 2001 UKHL 53 (HL)] wherein the House of Lords found that: (WLR pp. 2067-68, paras 16-17)<br>“16. … A prosecution founded on entrapment would be an abuse of the court\'s process. The court will not permit the prosecutorial arm of the state to behave in this way.<br>17. … entrapment is not a matter going only to the blameworthiness or culpability of the defendant and, hence, to sentence as distinct from conviction. Entrapment goes to the propriety of there being a prosecution at all for the relevant offence, having regard to the State\'s involvement in the circumstance in which it was committed.”<br>18. Thus, sting operations conducted by the law-enforcement agencies themselves in the above jurisdictions have not been recognised as absolute principles of crime detection and proof of criminal acts. Such operations by the enforcement agencies are yet to be experimented and tested in India and legal acceptance thereof by our legal system is yet to be answered. <b style=\"background-color: rgb(255, 255, 0);\">Nonetheless, the question that arises in the present case is what would be the position of such operations if conducted not by a State agency but by a private individual and the liability, not of the principal offender honeytrapped into committing the crime, but that of the sting operator who had stained his own hands while entrapping what he considers to be the main crime and the main offender. Should such an individual i.e. the sting operator be held to be criminally liable for commission of the offence that is inherent and inseparable from the process by which commission of another offence is sought to be established? Should the commission of the first offence be understood to be obliterated and extinguished in the face of claims of larger public interest that the sting operator seeks to make, namely, to expose the main offender of a serious crime injurious to public interest? Can the commission of the initial offence by the sting operator be understood to be without any criminal intent and only to facilitate the commission of the other offence by the “main culprit” and its exposure before the public? These are some of the ancillary questions that arise for our answer in the present appeals and that too at the threshold of the prosecution i.e. before the commencement of the trial.</b><br>19. The answer to the above, in our considered view would depend, as in any criminal case, on the facts and circumstances thereof. <b style=\"background-color: rgb(255, 255, 0);\">A crime does not stand obliterated or extinguished merely because its commission is claimed to be in public interest.</b> Any such principle would be abhorrent to our criminal jurisprudence. At the same time the criminal intent behind the commission of the act which is alleged to have occasioned the crime will have to be established before the liability of the person charged with the commission of crime can be adjudged. The doctrine of mens rea, though a salient feature of the Indian criminal justice system, finds expression in different statutory provisions requiring proof of either intention or knowledge on the part of the accused. Such proof is to be gathered from the surrounding facts established by the evidence and materials before the court and not by a process of probe of the mental state of the accused which the law does not contemplate. The offence of abetment defined by Section 107 IPC or the offence of criminal conspiracy under Section 120-A IPC would, thus, require criminal intent on the part of the offender like any other offence. Both the offences would require existence of a culpable mental state which is a matter of proof from the surrounding facts established by the materials on record. Therefore, whether the commission of an offence under Section 12 of the PC Act read with Section 120-B IPC had been occasioned by the acts attributed to the appellant-accused or not, ideally, is a matter that can be determined only after the evidence in the case is recorded.<br>20. What the appellant-accused assert is that in view of the fact that the sting operation was a journalistic exercise, no criminal intent can be imputed to the participants therein. Whether the operation was really such an exercise and the giving of bribe to A-1 was a mere sham or pretence or whether the giving of the bribe was with expectation of favours in connection with mining projects, are questions that can only be answered by the evidence of the parties which is yet to come. Such facts cannot be a matter of an assumption. Why in the present case there was a long gap (nearly 12 days) between the operation and the circulation thereof to the public is another relevant facet of the case that would require examination. The inherent possibilities of abuse of the operation as videographed, namely, retention and use thereof to ensure delivery of the favours assured by the receiver of the bribe has to be excluded before liability can be attributed or excluded. This can happen only after the evidence of witnesses is recorded. Also, merely because in the charge-sheet it is stated that the accused had undertaken the operation to gain political mileage cannot undermine the importance of proof of the aforesaid facts to draw permissible conclusions on basis thereof as regards the criminal intent of the accused in the present case.<br>21. An issue has been raised on behalf of the appellants that any finding with regard to the culpability of the accused, even prima facie, would be detrimental to the public interest inasmuch as any such opinion of the Court would act as an inhibition for enterprising and conscious journalists and citizens from carrying out sting operations to expose corruption and other illegal acts in high places. The matter can be viewed differently. A journalist or any other citizen who has no connection, even remotely, with the favour that is allegedly sought in exchange for the bribe offered, cannot be imputed with the necessary intent to commit the offence of abetment under Section 12 or that of conspiracy under Section 120-B IPC. Non-applicability of the aforesaid provisions of law in such situations, therefore, may be ex facie apparent. The cause of journalism and its role and responsibility in spreading information and awareness will stand subserved. It is only in cases where the question reasonably arises whether the sting operator had a stake in the favours that were allegedly sought in return for the bribe that the issue will require determination in the course of a full-fledged trial. The above is certainly not exhaustive of the situations where such further questions may arise requiring a deeper probe. As such situations are myriad, if not infinite, any attempt at illustration must be avoided.<br>22. The contention of the appellants that the materials/allegations against the appellant-accused in the charge-sheet filed do not make out any criminal offence against them will not require a detailed probe and our conclusion thereon at the present stage of the proceeding. Suffice it will be to negative the said contention by holding that prima facie materials are available for a fuller probe into the precise role of A-4 and A-6 in the alleged conspiracy.<br>23. In view of the above discussion the order dated 30-5-2008 [Bhupinder Singh Patel v. CBI, (2008) 151 DLT 37] of the High Court refusing to interfere with the charges framed against the appellant-accused is fully justified. Accordingly, we dismiss the present appeals and affirm the order dated 30-5-2008 [Bhupinder Singh Patel v. CBI, (2008) 151 DLT 37] passed by the High Court.</h4><p><br></p>', '94ef484d495760c204f2cac29ca962c9.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2014-04-24', 1, '', '', '2021-03-30 02:01:09', '2021-03-30 02:14:29');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(641, 'oL4dwr0f8JSIcnCHtGz0H3N8x', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for permanent injunction. Counter claim for injunction in respect of the property on a different cause of action is maintainable. The cause of action should arise before the time to file written statement. Supreme Court. 7 May 1996', '<h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\">Jag Mohan Chawla v. Dera Radha Swami Satsang</h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\">Civil Appeal No. 8275 of 1996†, decided on May 7, 1996. </h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\">Judgment Link: <a href=\"https://main.sci.gov.in/jonew/judis/15570.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/15570.pdf</a></h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\">Reported in (1996) 4 SCC 699</h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\">Justice K. Ramaswamy and Justice G.B. Pattanaik</h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\">5. The question, therefore is: <b style=\"background-color: rgb(255, 255, 0);\">w</b><b style=\"\"><span style=\"background-color: rgb(255, 255, 0);\">hether in a suit for injunction, counter-claim for injunction in respect of the same or a different property is maintainable?</span> </b><b style=\"background-color: rgb(255, 255, 0);\">Whether counter-claim can be made on different cause of action?</b> It is true that preceding CPC Amendment Act, 1976, Rule 6 of Order 8 limited the remedy to set-off or counter-claim laid in a written statement only in a money suit. By CPC Amendment Act, 1976, Rules 6-A to 6-G were brought on statute. Rule 6-A(1) provides that a defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damage or not. A limitation put in entertaining the counter-claim is as provided in the proviso to sub-rule (1), namely, the counter-claim shall not exceed the pecuniary limits of the jurisdiction of the court. Sub-rule (2) amplifies that such counter-claim shall have the same effect as a cross-suit so as to enable the court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. The plaintiff shall be given liberty to file a written statement to answer the counter-claim of the defendant within such period as may be fixed by the court. The counter-claim is directed to be treated, by operation of sub-rule (4) thereof, as a plaint governed by the rules of the pleadings of the plaint. Even before 1976 Act was brought on statute, this Court in Laxmidas Dahyabhai Kabarwala v. Nanabhai Chunilal Kabarwala1, had come to consider the case of suit and cross-suit by way of counter-claim. Therein, suit was filed for enforcement of an agreement to the effect that partnership between the parties had been dissolved and the partners had arrived at a specific amount to be paid to the appellant in full satisfaction of the share of one of the partners in the partnership and thereby decree for settlement of accounts was sought. Therein the legal representatives of the deceased partner contended in the written statement, not only denying the settlement of accounts but also made a counter-claim in the written statement for the rendition of accounts against the appellant and paid the court fee as plaint. They also sought a prayer to treat the counter-claim as a cross-suit. The trial court dismissed the suit and the counter-claim. On appeal, the learned Single Judge accepted the counter-claim on a plaint in a cross-suit and remitted the suit for trial in accordance with law. On appeal, per majority, this Court had accepted the respondents’ plea in the written statement to be a counter-claim for settlement of their claim and defence in written statement as a cross-suit. The counter-claim could be treated as a cross-suit and it could be decided in the same suit without relegating the parties to a fresh suit. It is true that in money suits, decree must be conformable to Order 20, Rule 18, CPC but the object of the amendments introduced by Rules 6-A to 6-G are conferment of a statutory right on the defendant to set up a counter-claim independent of the claim on the basis of which the plaintiff laid the suit, on his own cause of action. In sub-rule (1) of Rule 6-A, the language is so couched with words of wide width as to enable the parties to bring his own independent cause of action in respect of any claim that would be the subject-matter of an independent suit. Thereby, it is no longer confined to money claim or to cause of action of the same nature as original action of the plaintiff. It need not relate to or be connected with the original cause of action or matter pleaded by the plaintiff.<b style=\"background-color: rgb(255, 255, 0);\"> The words “any right or claim in respect of a cause of action accruing with the defendant” would show that the cause of action from which the counter-claim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff that occasioned to lay the suit. The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires.</b> The defendant may set up a cause of action which has accrued to him even after the institution of the suit. The counter-claim expressly is treated as a cross-suit with all the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite court fee thereon. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needless protection (sic protraction), the legislature intended to try both the suit and the counter-claim in the same suit as suit and cross-suit and have them disposed of in the same trial. In other words, a defendant can claim any right by way of a counter-claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit. Acceptance of the contention of the appellant tends to defeat the purpose of amendment. Opportunity also has been provided under Rule 6-C to seek deletion of the counter-claim. </h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\">It is seen that the trial court had not found it necessary to delete the counter-claim. The High Court directed to examine the identity of the property. <b style=\"background-color: rgb(255, 255, 0);\">Even otherwise, it being an independent cause of action, though the identity of the property may be different, there arises no illegality warranting dismissal of counter-claim. Nonetheless, in the same suit, both the claim in the suit and the counter-claim could be tried and decided and disposed of in the same suit. </b>In Mahendra Kumar v. State of M.P.2 where a Bench of two Judges of this Court was to consider the controversy, held that since the cause of action for the counter-claim had arisen before filing of the written statement, the counter-claim was maintainable. The question therein was of limitation with which we are not concerned in this case. Thus considered we find that there is no merit in the appeal.</h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\">6. The appeal is accordingly dismissed. No costs.</h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\">———</h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\">† From the Judgment and Order dated 1-8-1994 of the Punjab and Haryana High Court in C.R. No. 1272 of 1994</h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\">1. (1964) 2 SCR 567 : AIR 1964 SC 11</h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\">2. (1987) 3 SCC 265</h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\"> </h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\"><br></h4>', 'cbdccb5e8fbe9d6830057f6e2dca5348.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1996-05-07', 1, '', '', '2021-03-30 02:39:07', '2021-03-30 02:40:27'),
(642, 's8WTnOAOlcxUGu8F0aOPFQBwc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Counter claim. In a suit for injunction, counter-claim for possession also could be entertained. Supreme Court. 24 November 1995', '<h4 style=\"margin-bottom: 0.0001pt; line-height: normal;\">Gurbachan Singh v. Bhag Singh. </h4><h4 style=\"margin-bottom: 0.0001pt; line-height: normal;\">SLP (C) No. 27264 of 1995† (CC No. 4968 of 1995), decided on November 24, 1995. </h4><h4 style=\"margin-bottom: 0.0001pt; line-height: normal;\">Reported in (1996) 1 SCC 770&nbsp;</h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\">Justice K. Ramaswamy and Justice B.L. Hansaria&nbsp;</h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\"><span style=\"background-color: rgb(255, 255, 0);\">Full Judgment</span>. 1. The petitioner and the eighth respondent had filed a suit for perpetual injunction restraining Respondents 1 to 7 from dispossessing them from the suit land or part thereof. Respondents/defendants filed the written statement contending that the petitioner and the eighth respondent had trespassed into their land of an extent of 3 kanals and they are in unlawful possession. Thereby, they raised counter-claim, in the written statement, for possession. The trial court, while dismissing the suit of the petitioners, granted decree for possession of two kanals, two marlas and one biswa comprising survey numbers mentioned therein. On appeal, it was confirmed and the High Court confirmed it in RSA No. 1190 of 1994 on 18-5-1995. Thus this special leave petition.</h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\">2. The contention raised in the courts below was that in a suit for perpetual injunction, the respondents could not lay any counter-claim for possession. Order 8, Rule 6(A)(1) of the CPC, 1908 as amended in 1976 reads thus:</h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\">“A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:</h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\">Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.”</h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\"><b style=\"background-color: rgb(255, 255, 0);\">3. It is true that Rule 6-A(a) was introduced by the Amendment Act of 1976. Preceding the amendment, it was settled law that except in a money claim, counter-claim or set-off cannot be set up in other suits. The Law Commission of India had recommended, to avoid multiplicity of the proceedings, right to the defendants to raise the plea of set-off in addition to a counter-claim in Rule 6 in the same suit irrespective of the fact whether the cause of action for counter-claim or set-off had accrued to the defendant either before or after the filing of the suit. The limitation was that the counter-claim or set-off must be pleaded by way of defence in the written statement before the defendant filed his written statement or before the time-limit for delivering the written statement has expired, whether such counter-claim is in the nature of a claim for damages or not. Further limitation was that the counter-claim should not exceed the pecuniary limits of the jurisdiction of the court. In other words, by laying the counter-claim, pecuniary jurisdiction of the court cannot be divested and the power to try the suit already entertained cannot be taken away by accepting the counter-claim beyond its pecuniary jurisdiction. Thus considered, we hold that in a suit for injunction, the counter-claim for possession also could be entertained, by operation of Order 8, Rule 6(A)(1) of the CPC.</b></h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\">4. It is sought to be contended that the counter-claim was not filed within the time given for laying the same. It would appear from the list of the dates given by the petitioner himself that the counter-claim was filed within two months from the date of the suit itself.</h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\">5. Under these circumstances, the special leave petition is dismissed.</h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\">———</h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\">†<span style=\"white-space:pre\">	</span>From the Judgment and Order dated 18-5-1995 of the Punjab and Haryana High Court in R.S.A. No. 1190 of 1994</h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\"><br></h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\"><br></h4><h4 style=\"margin-bottom:0cm;margin-bottom:.0001pt;line-height:\r\nnormal;mso-layout-grid-align:none;text-autospace:none\"><br></h4>', '17912420bee9afdbc67d2ef8383de9a6.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1995-11-24', 1, '', '', '2021-03-30 02:58:24', '2021-03-30 02:58:24'),
(643, 'F8hSlFp2kt2JtfFPrMYjw65xq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'NDPS Act. Getting Forensic Science Laboratory result within 15 days is only directory in nature and not mandatory. Delay in receipt of sample result is not a ground to grant bail to the accused. Karnataka High Court. 29 March 2021', '<h4>Arjav Deepak Mehta vs State of Karnataka. </h4><h4>Criminal Petition 8065 of 2020 decided on 29 March 2021. </h4><h4>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/375742/1/CRLP8065-20-29-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/375742/1/CRLP8065-20-29-03-2021.pdf</a><br>Judgment Link:&nbsp;<br>12. The second contention raised by learned&nbsp; Senior&nbsp; Counsel is that the Police Official has not done field Test in respect of the contraband article and not received the samples. In this regard, learned Senior Counsel relied upon the order passed by a Co-ordinate Bench of this Court in the case of Kelsi Katte Mahammed Shakir vs. The Superintendent of Customs, Bengaluru, passed in Crl.P.No.5402/2018, wherein it has been held that the instructions issued by the Narcotics Control Bureau to the Investigating Officer to carry the test kit while raiding and getting result from the FSL within 15 days, there is violation&nbsp; of the mandatory procedure. Similar view is taken by the same co-ordinate Bench in the case of Keval M. Lohith vs. State of Karnataka passed in Crl.P.No.4969/2020 and contended that the petitioner is entitled for bail for not receiving the FSL report within time.&nbsp; However, learned&nbsp; SPP-II has contended that in a similar case where FSL report was not received, a Co-ordinate Bench of this Court has rejected the bail in Crl.P.No.7386/2020&nbsp; dated&nbsp; 06.02.2021. On perusal of the records, admittedly, the Police raided the accused on 12.11.2020 and seized the contraband articles of 200 LSD Strips and on an enquiry with the accused, the accused himself has stated that he has purchased the LSD Stripes from Netherland and it was weighed by the petitioner which contained 3.95 gms. and with cover it&nbsp; weighed&nbsp; 50 gms. Out of which, 7 gms. was taken out for test.&nbsp; Though&nbsp; the Police sent the samples to the FSL, but the&nbsp; report was&nbsp; not received. The guidelines of Narcotics Control Bureau No.1/88 shows that the result of the sample shall be received within 15 days. This guidelines issued by the&nbsp; Narcotics Control Bureau is for the purpose of the procedure to be followed by the Investigating Officer while dealing with the drug case. It is only guidelines which is directory in nature&nbsp; but not mandatory in nature in respect of receiving the result of the FSL on the samples sent by the Investigating Officer. These guidelines say that the report has to be received within 15 days.&nbsp; The said guidelines are not binding on the FSL to give the result of the samples within 15 days. Since there is only one FSL in Bengaluru for the entire Karnataka and huge number of cases were registered and huge number of&nbsp; samples were sent in a day, it is not possible for the FSL to give report within 15 days as per the guidelines issued by the Narcotics Control Bureau to the Police Officials. If at all, the guidelines issued by the Narcotics Control Bureau in respect 1/88 instructions should be followed mandatorily then, it is the duty of the Narcotics Control Bureau to have their own Forensic Science Laboratory for the purpose of chemical analysis to find out the result within 15 days, as per their guidelines. The Central Government also shall make an endeavor to establish separate Forensic Science Laboratory for the purpose of analysis of narcotic drugs within the prescribed time without waiting for long time.&nbsp; Until&nbsp; the&nbsp; Union of India or Narcotic Control Bureau have their own Forensic Science Laboratory, the question of getting the&nbsp; result within 15 days is not practically possible. <b style=\"background-color: rgb(255, 255, 0);\">T</b><b style=\"\"><span style=\"background-color: rgb(255, 255, 0);\">herefore, I hold that getting the result within 15 days is only directory in nature and not mandatory. Therefore, merely the result of the sample is not received that itself is not a ground to grant bail to the petitioner.</span></b><br>13. As regards the field test kit being not carried by the raiding officer while going for raid, in this regard, the Narcotics Control Bureau issued guidelines to the Drug Law Enforcement Officers (DLEO) shall carry the test kit while raiding. But, here in this case, the Jeevan Bheemanagar&nbsp; Police raided and apprehended the accused and the Police is not a Special Police or Narcotics Control Bureau to carry the narcotic drug kit for conducting field test prior to sending the sample for chemical analysis to FSL. Whether&nbsp; such&nbsp; a&nbsp; narcotic drug kit has been provided to the ordinary Police Station or not is required to be elicited only in the trial, but not at this Stage. Here, in this case,&nbsp; the&nbsp; petitioner was&nbsp; found in possession of 3.95 gms. of LSD strips and as per the Schedule, 0.5 gms. is the commercial quantity. Such being the case, the contraband article is more than the commercial quantity and the investigation&nbsp; is still pending.<span style=\"white-space:pre\">	</span>Therefore, the petitioner is not entitled for bail.<br><b style=\"background-color: rgb(255, 255, 0);\">14. Accordingly, the Criminal Petition is dismissed. However, learned SPP shall make an endeavour to persuade the Home Department to provide Field Test Kits to all the Police Stations in Karnataka, if not already provided. He shall also make an endeavour to persuade the&nbsp; Government to establish a separate Forensic Science Laboratory for conducting tests for Narcotic Drugs and contraband articles under the NDPS Act. The Registry is directed to send a copy of this order to the Chief Secretary, Government of Karnataka, and the Additional Chief Secretary, Government of Karnataka, Home Department, Vidhana Soudha, Bengaluru.</b><br><br>Sd/- JUDGE<br>mv</h4><div><br></div>', '24fbc12ec3c846213b536cd4071a5fa6.jpg', '50d85003b6ba5a52361e3a164c465f8c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-29', 1, '', '', '2021-03-30 23:26:05', '2021-03-30 23:26:05'),
(644, 'Ul1fAFZ61jJxYAsYNJSWjKACC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prevention of Corruption Act,1988. Prior sanction for prosecution of public servant is NOT necessary in respect of the cases registered prior to Amendment on 26:7:2018. Karnataka High Court. 24 March 2021', '<h4>N. Krishnappa and another vs Anti-Corruption Bureau. </h4><h4>Criminal Petition 468 of 2021 decided on 24 March 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/375777/1/CRLP468-21-24-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/375777/1/CRLP468-21-24-03-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 23. The main contention of the learned counsel for the petitioners is that without sanction, there cannot be any prosecution against the petitioner No.2 herein, who has been arraigned as accused No.3. It is pertinent to note that the case was registered prior to the amendment and it is also not in dispute that the amendment was brought on 26.07.2018.  Learned counsel for the petitioners also brought to the notice of this Court that the charge sheet was filed on 25.10.2018. No doubt, in view of the amendment, it is clear that for prosecuting the public servant, who is or was working or holding the public office, the sanction is necessary. But the question before the Court is that in view of the amended Section, the sanction is necessary in respect of petitioner No.2, who has been arraigned as accused No.3.<br>24. Learned counsel appearing for the respondent – Lokayuktha also not disputed the fact that the sanction is not obtained. Learned counsel for the petitioners also not disputed the fact that the membership of accused No.3 was seized. The judgment relied upon by the respondent’s counsel subsequent to the amendment in the judgment of the Kerala High Court reported in 2020 SCC online Ker. 2529 in detailed discussed with regard to the amendment is concerned and ultimately, comes to the conclusion in para No.44 that the Prevention of Corruption (Amendment) Act, 2018 has to be held to be  prospective and  has no application to cases registered prior to the amendment and pending under various stages of investigation and to cases   in which investigation has been completed and are pending trial. <br><b style=\"background-color: rgb(255, 255, 0);\">25. Having perused the principles laid down in the said judgment, it is clear that the amendment brought in the year 2018 is prospective and has no application to the cases  registered prior to the amendment. In the  case  of hand, the case was registered prior to the amendment and also the fact  that an endorsement was issued stating that there is no need to issue the sanction. Hence, it is clear that when the post of petitioner No.2 was ceased, on account of completion of  his term, the very amendment brought in the year 2018 is not applicable to the case on hand. This Court also in the W.P.No.29176/2019 in para No.19 discussed with regard to the implication of the amendment and the Statute operates retrospectively only by express enactment, by the necessary implication from the language implied or where the statute is explanatory or declaratory or where the statue is passed for the purpose of protecting the public against some evil or abuse.</b><br>26. In the case on hand also, the allegation is made against petitioner No.2 herein that when he was working as a President along with other accused persons, indulged in  executing the lease deed. When such being the facts and circumstances of the case and also the Apex Court in  L.Narayana Swamy’s case in para No.21 categorically held that where the public servant had abused the office, which he held in the check-up period, but had ceased to hold “that office” or was holding a different office, then sanction would not be necessary. Likewise, where the alleged misconduct is in some different capacity than the one which is held at the time of taking cognizance, there will be no necessity to take the sanction. Hence, the very contention of the learned counsel for the petitioners that without the sanction, there cannot be any prosecution against petitioner No.2, cannot be accepted. The other contention of the learned counsel for the petitioners before this Court is that learned Judge has not applied his  judicious mind while issuing the process against the petitioners.<br>ORDER<br>The petition is hereby dismissed.<br></h4>', '5ac84b715fa18b02891fca46b9ffb563.jpg', 'ef0b870bdfcfdeb20d8b7879b4f0bd20.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-24', 1, '', '', '2021-03-31 00:05:24', '2021-03-31 00:06:26'),
(645, 'HiWuxKFNsqFuY8wDd56zimJAY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 200 and Drugs and Cosmetics Act, 1940. When complaint is filed by Drugs Inspector invoking Section 32 of the D C Act, the Magistrate need NOT examine the complainant and the witnesses.  Karnataka High Court. 24 March 2021', '<h4>Serdia Pharmaceuticals (India) Private Limited vs Union of India. </h4><h4>Criminal Petition 919 of 2020 decided on 24 March 2021. </h4><h4>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/375787/1/CRLP919-20-24-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/375787/1/CRLP919-20-24-03-2021.pdf&nbsp;</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:This petition is filed under Section 482 of Cr.P.C. praying this Court to quash the entire proceedings pending before the Special Court for Economic Offences at Bengaluru in Criminal Case No.189/2019 issuing summons against the petitioner/ accused No.8 and grant such other relief as deems fit in the circumstances of the case.<br>3. The complainant who has invoked Section 200 of Cr.P.C. is a public servant and in the complaint an allegation is made that accused No.1 is the manufacturing unit run under the name and style of M/s. Altra Pharmaceuticals Ltd., engaged in manufacturing and sale of drugs. Accused Nos.2 to 4 are the Directors. Accused No.5 is the Managing Director&nbsp; of&nbsp; accused No.1 and are responsible for day to day business of&nbsp; the&nbsp; Company and have been responsible for the offence committed. Accused No.6 is the Production Manager of accused No.1 and he was responsible for manufacturing of the not of standard quality drug DEAMICRON. Accused No.7 is the Quality Control Manager&nbsp; of accused No.1 and she was responsible for manufacturing of No.1 standard quality drug DEAMICRON. Accused No.8 is M/s. Serdia Pharmaceuticals (India) Private Limited holding loan licence in Form No.25A bearing No.25A-AD/145-A granted on 17.07.2001 and renewed in Form No.26A valid upto 31.12.2017 and responsible for manufacturing of not of&nbsp; standard&nbsp; quality drug at accused No.1. Accused No.9 is the Director of accused No.8 and he is responsible for day to day business of the Company and thereby responsible for the offences committed.<br>4. The learned Magistrate considered the material averments made in the complaint, particularly paragraph No.34 wherein it is stated that accused have committed the offence punishable under Section 27(d) of the D &amp; C Act. But in the prayer column it is stated that the accused committed the&nbsp; offence under Section 27(b)(ii) and 27(d) of the D &amp; C Act.&nbsp; &nbsp;There is no averment in the complaint that the drug in question was manufactured without valid licence. Thus, the ingredients to constitute the offence punishable under Section 27(b)(ii) of D &amp;&nbsp; C Act are existing. It is also observed that the complaint averments coupled with the documents produced along with complaint prima facie discloses that the accused committed the offence under Section 27(d) of D &amp; C Act. Hence, issued process against accused Nos.1 to 9. Accused No.8 M/s. Serdia Pharmaceuticals (India) Private Limited has approached this&nbsp; Court questioning the order of taking cognizance and issuance of process against it.<br>5. The main contention of the petitioner herein is that&nbsp; no enquiry as mandated under Section 202 of Cr.P.C. is conducted and without conducting the enquiry as mandated before summoning the accused who resides beyond his jurisdiction, to make the necessary enquiries into the case&nbsp; himself or direct an investigation to be made by the police officer or by such person as he thinks fit, for finding out whether or not there was sufficient ground to proceed against the accused is erroneous. In support of his contentions, he relied upon the judgment of the Apex Court in the case of Vijay Dhanuka and othres vs Najima Mamtaj and othrs reported in (2014) 14 SCC 638.<br>6. The other count of argument is that under the provisions of Section 22(2) of D &amp; C Act, the&nbsp; provisions&nbsp; of Cr.P.C. are applicable to all searches and seizures which are conducted under the provisions of Chapter IV of the D &amp; C Act,&nbsp; as they apply to any search or seizure made under the authority of a warrant issued under the provisions of Section 94 of the Cr.P.C. The search and seizure are made&nbsp; by the&nbsp; officers, who are not authorized to conduct such search seizure.&nbsp; They failed&nbsp; &nbsp;to produce any document evidencing that any attempt was made by the Drugs Inspector to call upon two independent and respectable persons whether from the locality or not for the purposes of witnessing the search which the Drugs Inspector conducted of the premises of the said Wellness Centre in respect of the drug. The Drugs Inspector has failed to comply with the criteria laid down by the High of Bombay in the case of State of Goa vs Tajpal Pandia passed&nbsp; in&nbsp; Crl.A.No.52/2002, wherein the High Court observed that at the time of dividing the drug sample into portions as required under Section 23(3) of D &amp; C Act, the Drugs Inspector must draw a panchanama expressly stating the procedure followed while dividing the samples into portions. It is also contended that there was a delay in getting&nbsp; the report and the same amounts to gross abuse of process of&nbsp; law and grave injustice to the petitioner and also non-compliance of the special provisions enumerated under the law. The Drugs Inspector has also violated the mandatory provisions of&nbsp; the&nbsp; 25(3) of D &amp; C Act by failing to have the said drug re-tested by the Central Drugs&nbsp; Laboratory in accordance&nbsp; with the provisions of Section 25 of D &amp; C Act. The petitioner had also subjected the same for test and the report which has been submitted was ignored by the Drugs Inspector. The learned Magistrate while considering the complaint, committed an error in not considering the aspect that the Drugs Inspector have also deprived the petitioner of his valuable right under the provisions of Section 25(4) of the D &amp; C Act to approach the Court and request the Court to have a portion of the sample of the said drug re-tested by the Central Drugs Laboratory.<br></h4><h4><b style=\"background-color: rgb(255, 255, 0);\">15. Having heard the learned counsel for the petitioner and the learned counsel for the respondent&nbsp; and also on perusal of the material available on record, the questions that would&nbsp; arise for the consideration of this Court are:<br>(i) Whether non-compliance of Section 202 of Cr.P.C. vitiates taking of cognizance against&nbsp; the petitioner herein even though complainant is a public servant who has been exempted under Section 200 of Cr.P.C.?</b><br><b style=\"background-color: rgb(255, 255, 0);\">(ii) Whether the other grounds urged before the Court comes to the aid of the petitioner herein to quash the proceedings as sought?</b><br>17. This Court in Crl.P.No.1097/2020 dated 02.03.2021 where similar contentions were raised, discussed in detail with regard to compliance of Section 202 of Cr.P.C. In the said judgment, having discussed the scope of Sections&nbsp; 200 and 202&nbsp; of Cr.P.C., this Court held that it is mandatory to hold an enquiry under Section 202 of Cr.P.C. referring the judgment of the Apex Court in the case of Abhijit Pawar v. Hemant Madhukar Nimbalkar and Another reported in (2017) 3 SCC 528. In paragraph Nos.23 and 25 of the said judgment, the Apex Court extracted paragraph Nos.20 and 22 of the judgment in the case&nbsp; of Mehmood Ul Rehman v. Khazir Mohammad Tunda reported in (2015) 12 SCC 420. This Court also discussed the judgment of the Apex Court in the case of Vijay Dhanuka (supra) referring paragraph No.14 of the judgment so also the enquiry as defined under Section 2(g) of the Code and comes to the conclusion that Section 202 of Cr.P.C. contemplates with regard to the word “shall” in case where the accused is residing&nbsp; at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an enquiry or investigation before issuing the process.<br>18. In the case on hand, the material discloses that the complaint is filed by the Union of India represented by its Drugs Inspector and the offences invoked in the complaint is under Section 27(b)(ii) and 27(d) of the D &amp; C Act. The complaint is filed under Section 200 of Cr.P.C. read with Section 32(1) of the D &amp; C Act for an offence under Section 18(a)(i) of the D &amp; C Act, punishable under Section 27(d) of D &amp; C Act. Hence, it is clear that the prosecution is launched under Section 32(1) of the D &amp;&nbsp; C Act.<br>19. Having perused the complaint, it is not in dispute&nbsp; that the complaint is filed by the Government represented by its Drugs Inspector. <b style=\"background-color: rgb(255, 255, 0);\">Now the question before this Court is when the complaint is filed by the public servant, whether the complainant has to be examined before the Court. Having perused the&nbsp; Cr.P.C., a special provision is made under Section 200(a) of Cr.P.C. In a case of complaint filed by the public servant acting&nbsp; or purporting to act in the discharge of his official duties or a Court has made the complaint, need not examine the&nbsp; complainant and the witnesses.</b><br>20. The main contention of the learned counsel for the petitioner is that when the accused is residing at a place beyond the&nbsp; area in which he exercised his jurisdiction, either enquire&nbsp; into the case himself or direct an investigation to be made by a police officer or by such other person for the purpose of deciding whether or not there is sufficient ground for proceeding. <b style=\"background-color: rgb(255, 255, 0);\">T</b><b style=\"background-color: rgb(255, 255, 0);\">he&nbsp; moot question before this Court is whether the proviso&nbsp; to&nbsp; Section 202(1) of Cr.P.C. takes away Section 200(a) of Cr.P.C. Whether it is mandatory on the part of the Court to examine the complainant and the witnesses as contended by the learned counsel for the petitioner.</b><br>21. The learned counsel for the respondent would vehemently contend that Section 202(1) of Cr.P.C. will not come in the way of examining the witnesses when the complaint is filed by public servant. In the case on hand, it is not in dispute that the complaint is filed by the Union of India represented by&nbsp; its authorized person – Drugs Inspector. The High Court&nbsp; of Punjab and Haryana in the case of Cheminova (supra), dealt with the similar circumstances in paragraph No.34 of the judgment after analyzing the material on record. It is held that&nbsp; &nbsp;in a case instituted by public servant in discharge of his official duties where apart from the complaint, other material evidence being relied upon by the complainant is also before the Court, as in the present case where report of Government experts which are both per-se admissible have been annexed, and the Magistrate upon perusal of the complaint and the documents as annexed therewith is satisfied that sufficient grounds do exist for proceeding against the accused, the requirement of adjourning the matter for taking evidence is virtually rendered redundant as neither the public servant nor the Government expert are required to be examined by virtue of proviso to Section 200 and 293 of Cr.P.C. It is further observed that&nbsp; the manufacturing&nbsp; firm, in any case, is not disputing the factum of it having manufactured the insecticide in question. Consequently, the object&nbsp; and&nbsp; purpose&nbsp; of&nbsp; Section&nbsp; 202(1)&nbsp; of&nbsp; Cr.P.C.&nbsp; having been achieved in the present circumstances, there is no need&nbsp; to&nbsp; record the statement of the ‘public servant’ and of the expert for the purpose of holding an enquiry as envisaged by Section 202&nbsp; &nbsp;of Cr.P.C.<br>22. This Court would also like to refer to the judgment of the Apex Court in the case of Union of India vs Ashok Kumar Sharma and others reported in AIR 2020 SC 5274. The Apex Court in paragraph No.40 of the said judgment held that when the complaint under Section 32 of the D &amp; C Act&nbsp; is filed either by the Inspector or by authorized gazetted officer being public servant under Section 200 of Cr.P.C., the Magistrate is exempted from examining the complainant and the witnesses. <b style=\"background-color: rgb(255, 255, 0);\">Hence, it is clear that when the complaint is filed by the Drugs Inspector invoking Section 32 of the D &amp; C Act, the Magistrate is exempted from examining the complainant and the witnesses. Hence, the very contention of the learned counsel for the petitioner cannot be accepted for the reason that in the present case, the complaint is filed by the Union of India represented by the Drugs Inspector. Hence, I answer point No.(i) as negative.</b>&nbsp;<br>27.In view of the discussions made above, I pass the following:<br>ORDER<br>The petition is dismissed.<br><br></h4>', 'e6ecc22cec683138cf2ff207fb65ad72.jpg', '25783e0822c825ed95eede76d7f20b90.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-24', 1, '', '', '2021-03-31 00:28:23', '2021-03-31 00:28:23');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(646, 'x7T1G9RZnXL7341qcduK4KF0o', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 482. Though a transaction is civil in nature, if the complaint specifically avers dishonest and fraudulent acts inducing complainant to part with money, the criminal proceedings can NOT be quashed. Karnataka High Court.', '<h4>Manisha Prashant Mehta and others vs State of Karnataka and another. </h4><h4>Criminal Petition 6248 of 2020. </h4><h4>Justice H.P. Sandesh</h4><h4>This petition is filed under section 482 of Cr.P.C praying this court to quash the FIR in Cr.No. 195/2020 on the file of IV Additional CMM, Bengaluru, for the offences punishable&nbsp; under sections&nbsp; 420,&nbsp; 406, 409&nbsp; and&nbsp; 384 of IPC,<br>sections 38, 39, 40, 5 of the Karnataka Money Lenders Act and section 4 of the Karnataka Prohibition of Charging Exorbitant Interest Act, 2004.<br>2. The factual matrix of the case is that respondent No.2 has filed the complaint before the respondent No.1 on 20.8.2020 making the allegations against the petitioners that the complainant is the authorized representative of&nbsp; M/s Sanchaya Land and Estate Private Limited, a company duly incorporated under the Companies Act and carrying out the business of project development and construction. The complainant was authorized to prefer the present complaint.&nbsp; It is alleged in the complaint that accused Nos. 1 and 3 who are husband and wife are Directors of accused No.5 which is a company incorporated under the&nbsp; Companies Act. The accused persons claim to be in the business of unofficial financing among other things and are on the look out for soft targets to lend money and in turn usurp their immovable properties by charging illegal interest rates, which can never be repaid.&nbsp; The&nbsp; said accused persons were introduced by one Rajiv Gupta, finance facilitator, befriended personnel of the said company and in August 2019 misled the complainant into taking a business loan in a sum of Rs.75,00,000/-. The&nbsp; said money was received via cheque payments and Rajiv Gupta received commission. The accused persons dishonestly and fraudulently deceived the complainant with an intention to cause wrongful loss to the company and wrongful gain to themselves, into accepting, that&nbsp; since they do not have a money lenders licence and would be charging high interest rate at 2% per month till repayment of the principal amount of the loan advanced, they should instead of executing an MOU for the said loan, secure the loan amount by ostensibly transferring sale deeds of 6 flats/properties bearing Nos. 102, 503, 601, 602, 701, 801 in Maple Blocks which form part of the said company’s project at Kasaba Hobli, Anekal Taluk, in the name of accused No.1 during August 2019. The accused insisted that they have to execute sale deeds at circle value instead of market value, as the same was only a formality&nbsp; to secure the loan advanced and therefore despite the cumulative consideration amount for the 6 flats being Rs.1,05,75,000/-, Rs.30,75,000/- was returned. They were further misled into executing bogus rent&nbsp; agreements during the same period, to secure in favour of the accused the 2% per monthly interest amount ostensibly payable as rent initially for 11 months which agreements&nbsp; would&nbsp; extend indefinitely, till the principal amount is not paid. It was agreed that on payment of principal amount, the sale and rent documents executed in August 2019 would be cancelled. It is also the allegation that on 26.2.2020 accused No.3 misled the said company i.e., taking into a business loan in a sum of Rs.2,24,10,080/-. The&nbsp; said money was received via cheque payments from accused No.2’s personal account. Hence, in the complaint the complainant sought to take action against the accused on the ground that they dishonestly and fraudulently deceived the complainant with an intention to cause wrongful loss to the company and wrongful gain to themselves to secure&nbsp; the loan amount. Based on the complaint, the police have registered the case and investigated the matter and consequent upon the registration of FIR based on the complaint, petitioners are before this court.<br>3.Counsel for the petitioners vehemently contended that in view of the understanding between the parties, respondent No.2 is the developer who developed the&nbsp; project agreed to sell 6 flats in favour of petitioner No.1&nbsp; and 20 flats in favour of petitioner No.2 and 30 flats in favour of petitioner No.3. In this connection, sale agreement was also executed and subsequently, sale deed was also executed. There is an arbitration clause in the&nbsp; sale deed and sale agreement that if any dispute arises between the parties, the same has to be settled by arbitration. It is also contended by the counsel for the petitioners that there is a rental agreement.&nbsp; However, there is no any arbitration clause with regard to any&nbsp; dispute arising between the parties regarding rental. He&nbsp; has approached the appropriate forum for the said relief. Counsel would vehemently contend that having taken note of the contents in the complaint, police cannot decide in investigation with regard to the nature of the documents which are in existence between the parties. Counsel also brought to the notice of this court the provision made in&nbsp; the agreement to sell, i.e., clause No.33 in respect of the property which they agreed and also brought to the notice of this court copy of the sale deed and the&nbsp; arbitration clause providing that if any dispute arises, the&nbsp; parties&nbsp; have to settle the same through arbitration. Counsel also would contend that already arbitration proceedings are initiated against respondent No.2. The&nbsp; dispute&nbsp; between the parties is of civil in nature and the same has to be decided in a civil court and not in criminal proceedings. Hence, the continuation of criminal proceedings against the petitioners would be leading to miscarriage of justice and it requires interference by this court.<br>5. Having heard the petitioners counsel and also the counsel appearing for respondent No.2, this court has to examine the material available on record. In the present petition, the relief is sought for quashing of FIR and when the order has been sought for quashing of FIR, the court has to look into the contents of the complaint.&nbsp; <b style=\"background-color: rgb(255, 255, 0);\">On&nbsp; a perusal of the complaint dated 20.8.2020, it can be seen that specific averments are made against the petitioners herein that accused persons dishonestly and fraudulently deceived the complainant with an intention to cause wrongful loss to the company and wrongful gain to themselves. Having perused the complaint averments, specific averments are made with regard to dishonestly inducing the complainant in parting the money. It is also not in dispute as contended by the petitioners counsel that the documents came into existence in connection with the transaction between the parties. </b>The learned counsel for&nbsp; the petitioners brought to the notice of the&nbsp; court agreement of sale and sale deeds which are executed and contended that it is purely a civil dispute between the parties. Counsel would vehemently contend that nature of these documents cannot be ascertained by the&nbsp; investigating officer. It has to be noted that the Apex Court in the case of Dineshbhai Chandubhai Patel vs State of Gujarat and Others [(2018) 3 SCC 104] has summarized the principles in the context of FIR when the same has been challenged before the High Court while exercising the power under section 482 of&nbsp; Cr.P.C.&nbsp; The Apex Court in this judgment held that <b style=\"background-color: rgb(255, 255, 0);\">when allegation of committing cognizable offence is made, the High Court should not venture to curtail the rights of the investigating officer and allow the investigating officer to probe the&nbsp; crime and unearth the crime. The only factor to be considered is once the FIR prima facie discloses the allegation of cognizable offence, the investigating officer has to be allowed to probe and unearth the crime as per procedure established.</b> The learned counsel for respondent No.2 brought to the notice of this court the provision with regard to the arbitration clause in the documents and no doubt the petitioners counsel also brought to the notice of the court the clause available in&nbsp; the agreement of sale and also sale deed that if any&nbsp; dispute arises between the parties, the matter has to be settled by arbitration. The court has to look into the averments made in the complaint and whether the complaint averments discloses at the inception of the transaction any inducement or cheating has taken place.&nbsp; &nbsp; If that is the case, the court has to allow the investigating officer to probe into the matter. The Apex Court in the recent judgment delivered on 10.3.2021 in the case&nbsp; of Priti Saraf and Another vs State of NCT of Delhi and Another [2021 SCC Online SC 206] in paragraph 31&nbsp; held that, in the matter of exercise of inherent power by&nbsp; the High Court, the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court. The Criminal Procedure Code contains a detailed procedure for investigation, framing of charge and trial, and in the event when the High Court is desirous of putting a halt to the known procedure of law, it must use proper circumspection with great care and&nbsp; caution to interfere in the complaint/FIR/charge-sheet in exercise of its inherent jurisdiction. In paragraph 32 it is held that, on a careful reading&nbsp; of the complaint/FIR/charge-sheet, in our&nbsp; view, it cannot be said that the complaint does not disclose the&nbsp; commission of an offence. The ingredients of the offences under Sections 406 and 420 IPC cannot be said to be absent on the basis of the allegations in the complaint/FIR/charge-sheet. We would like to add that whether the allegations in the complaint are otherwise correct or not, has to be decided on the basis of the evidence to be led during the course of trial. Simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the appellants, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will&nbsp; be an abuse of the process of the court for exercising inherent powers of the High Court under Section 482 CrPC for quashing such proceedings. The Apex Court making the above observations quashed the order of the High Court and restored the complaint.<br>6. Having considered the principles in the aforesaid judgment and also the judgments referred by the counsel for respondent No.2, this court has to examine&nbsp; whether&nbsp; the material available on record amounts to abuse of process if proceedings is continued. <b style=\"background-color: rgb(255, 255, 0);\">Having taken note of the contents of the complaint, specific allegations&nbsp; are&nbsp; made that at the inception of the transaction there was an intention to cheat and dishonestly entered into the transaction and specific allegations are also made with regard to cheating of the complainant. When&nbsp; the&nbsp; complaint prima facie discloses committing of cognizable offence, the High Court should not venture to restrain the investigating officer and the investigating officer has to probe and unearth the crime </b>as held by the Apex Court in Dineshbhai Chandubhai Patel (supra). When specific allegations are made in the complaint that at the inception of the transaction there was dishonest intention, the matter has to be probed and at the initial stage the investigating officer cannot be restrained to probe the crime, at this juncture the court has to only look into the complaint averments and hence I do not find any merit to quash the proceedings initiated against the petitioners.<br>In view of the discussions made above, I pass the following : -<br>ORDER<br>a) Petition is rejected.<br>b) However, liberty is reserved to the petitioners to move the court, if need arises after filing of the final report.<br><br><br></h4><div><br></div>', '20962ce9abe75f0f5541dda94e4183c2.jpeg', '58d0f61e83b70c5216fbc9fe8dca6435.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-20', 1, '', '', '2021-03-31 01:49:17', '2023-01-20 15:25:17'),
(647, 'rDJ9RaN3TSSjBom75EJF8zhJg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act, 1988. Death of employee. Amount received by dependents under group insurance scheme is NOT a pecuniary advantage and can NOT be deducted from the MVC compensation. Karnataka High Court. 4 March 2021', '<h4><span style=\"font-size: 1.3125rem;\">Geetha Kumari B.N. and others vs Reliance General Insurance Company and another. </span></h4><h4><span style=\"font-size: 1.3125rem;\">Miscellaneous First Appeal 3942 of 2020 decided on 4 March 2021.&nbsp;</span></h4><h4>Justice B. Veerappa and Justice Ravi V. Hosmani&nbsp;</h4><h4><span style=\"font-size: 1.3125rem;\">Judgment Link:&nbsp;</span><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/375148/1/MFA3942-20-04-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/375148/1/MFA3942-20-04-03-2021.pdf</a><br></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: The claimants, who are the mother, father and brother of the deceased have filed the present Miscellaneous First Appeal against the judgment and award dated 21.11.2019 made in MVC No.1618/2018 on the file of the XIV Additional Senior Civil Judge and Motor Accident Claims Tribunal, Bengaluru (SCCH-10), insofar deducting Rs.17,87,336/- out of the compensation awarded, on the ground that the deceased has not contributed any premium to the Insurance Company, personally.<br>8. Considering the entire material on record, the Tribunal recorded a finding that the claimants have proved that they are the legal heirs of the deceased Sagar and the claimants have partly proved that deceased Sagar died on account of road traffic accident that occurred on 10.02.2018 at 10.30 am due to rash and negligent driving of the tipper lorry bearing registration No.KA-42/A-6449, driven by its driver. Accordingly, the claimants are entitled to compensation of Rs.37,89,198/- towards loss of dependency, Rs.50,000/- towards loss of filial consortium, Rs.15,000/- towards loss of estate and Rs.15,000/- towards transportation of dead body, funeral and obsequies ceremony expenses, in total, Rs.38,69,198/-. Out of Rs.37,89,198/- awarded under the head ‘loss of dependency’, the <b style=\"background-color: rgb(255, 255, 0);\">Tribunal deducted Rs.17,82,336/-, on the ground that the claimants have already received Rs.17,82,336/- from the 2nd respondent-Insurance Company on account of the death of Sagar and the deceased has not contributed any premium to the Insurance Company, personally. Thus, after deducting Rs.17,82,336/-, the Tribunal awarded total compensation of Rs.20,86,862/- with interest at 9% per annum from the date of petition till the date of deposit.</b> Hence the present Miscellaneous First Appeal is filed by the claimants.<br>11. Sri Prakash M.H., learned counsel for the Appellants/ claimants contended that the impugned judgment and award passed by the Tribunal deducting Rs.17,82,336/- towards insurance amount is erroneous and contrary to the material on record, cannot be sustained. He further contended that the<b style=\"\"><span style=\"background-color: rgb(255, 255, 0);\"> Tribunal erred in accepting the contention of the insurer and deducted the said amount of insurance which the Appellants have received from the employer through group insurance.</span></b><b style=\"background-color: rgb(255, 255, 0);\"> The said amount is the benefit extended by the employer and at any stretch of imagination, it will not be a double benefit nor “pecuniary advantage” to the legal representatives of the deceased.</b> The Tribunal while deducting the said amount, erroneously recorded a finding that the deceased has not contributed anything from his salary. The said observation made by the Tribunal is without any logical basis. The amount awarded towards love and affection is on lower side and requires enhancement.<span style=\"white-space:pre\">	</span></h4><h4><span style=\"white-space:pre\">16</span>......The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. If there is a natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving motor vehicle, would not be covered under the Motor Vehicles Act. Thus, the application of general principle under common law of loss and gain for the computation of compensation under the Motor Vehicles Act must co-relate to this type of injury or deaths viz., accidental. <b style=\"background-color: rgb(255, 255, 0);\">If the words ‘pecuniary advantage’ from whatever source are to be interpreted to mean any form of death under Motor Vehicles Act, it would dilute all possible benefits conferred on the claimant and would be contrary to the spirit of the law. If the ‘pecuniary advantage’ resulting from death means pecuniary advantage coming under all forms of death then it will include all assets, movable, immovable shares, bank accounts, cash and every amount receivable under any contract. In other words, all heritable assets including what is willed by the deceased etc. This would obliterate both, all possible conferment of economic security to the claimant by the deceased and the intentions of the legislature. </b>By such interpretation the tortfeasor in spite of his wrongful act or negligence, which contributes to death, would have in many cases no liability or meager liability. The general principle of loss and gain takes colour of the Motor Vehicles statute viz., the gain has to be interpreted which is as a result of the accidental death or loss on account of accidental death. Thus, under the provisions of Motor Vehicles Act whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of Motor Vehicle accidental death and not other form of death, in terms of Section 166 of the Motor Vehicles Act. </h4><h4>18. Admittedly, in the present case, it is not the case of the Insurance Company that the employer insured his employee/deceased against injury or death arising out of an accident. But the employer/insurer to the employee is in respect of a insurance not co-related to any accident or death arising out of an accident in a road traffic accident.<br>19. It is significant to record that, in both the sources viz., either under the Motor Vehicles Act or from the employer, the compensation receivable by the claimant is either statutory or through security of the employer securing for his employee in both the cases he receives the amount without his contribution. How thus an amount earned out of one’s labour or contribution towards one’s wealth, savings etc. either for himself or for his family, which such person knows, under the law, has to go to his heirs after his death either by succession or under a Will could be said to be the ‘pecuniary gain’ only on account of one’s accidental death. This, of<br>course, is pecuniary gain but how this is equitable or could be balanced out of the amount to be received as compensation under the Motor Vehicles Act. There is no co-relation between the two amounts. Not even remotely. <b style=\"background-color: rgb(255, 255, 0);\">How can an amount of loss and gain of one contract could be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any co-relation with an amount earned by an individual.</b> Principle of loss and gain has to be on the same place within the same sphere, of course, subject to the contract to the contrary or any provisions of law. The amount insured by the employer to the employee is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event, viz., accident, which may not take place at all. Similarly, family pension is also earned by an&nbsp; employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than accidental death. No co-relation between the two. Similarly, life insurance policy is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which insured contributes in the form of premium. It is receivable even by the insured, if he lives till maturity after paying all premium, in the case of death insurer indemnifies to pay the sum to the heirs, again in terms of the contracts for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on insured’s death. Death is only a step or contingency in terms of the contract, to receive amount.<br>20. (group insurance) ....was a contract between the employer and employee. Similarly any cash, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of one’s death but all these have no co-relation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as ‘pecuniary advantage’ liable for deduction. When we seek the principle of loss and gain, it has to be on similar and same plane having nexus inter se between them and not to which, there is no semblance of any co-relation. Thus, the Tribunal is not justified in deducting the amount of insurance which even in the absence of accident, the claimant was entitled or out of natural death or any illness, his legal representatives are naturally entitled. Therefore, the contention of the learned counsel for the respondent No.1 that the Tribunal is justified in deducting the insurance amount, cannot be accepted.<br></h4><h4>23.<span style=\"white-space:pre\">	</span>It is relevant to state at this stage, the “Pecuniary advantage” from whatever source must correlate to injury or death arising out of motor vehicle accident and does not apply to the amounts or advantages accruing to the claimant as a result of some contract or act which deceased performed in his lifetime like on account of insurance, bank deposits, shares, debentures, pensionary benefits, gratuity or grant of employment to a kin of deceased cannot be said to be outcome or result of death of deceased in a motor vehicle accident. Our view is fortified by the dictum of the Hon’ble Supreme Court in the case of Reliance General Insurance Company Limited Vs. Shashi Sharma&nbsp; and others, reported in (2016) 9 SCC&nbsp; 627,&nbsp; in&nbsp; para&nbsp; No.15,&nbsp; it&nbsp; has held thus:</h4><h4 style=\"margin-left: 25px;\">\"15. The principle expounded in this decision in Helen C. Rebello case that the application of general principles under the common law to estimate damages cannot be invoked for computing compensation under the Motor Vehicles Act. Further, the “pecuniary advantage” from whatever source must correlate to the injury or death caused on account of motor accident. The view so taken is the correct analysis and interpretation of the relevant provisions of the Motor Vehicles Act of 1939, and must apply proprio vigore to the corresponding provisions of the Motor Vehicles Act, 1988. This principle has been restated in the subsequent decision of the two-Judge Bench in Patricia Jean Mahajan case , to reject the argument of the Insurance Company to deduct the amount receivable by the dependants of the deceased by way of “social security compensation” and “life insurance policy”.</h4><h4 style=\"\">24. Said view also reiterated by the Hon’ble Supreme Court in the case of Sebastian Lakra and Others Vs. National Insurance Company Limited&nbsp; and&nbsp; another,&nbsp; reported&nbsp; in&nbsp; (2019)&nbsp; 17&nbsp; SCC&nbsp; 465, the three Hon’ble Judges, held that, it is the amount which accrues to claimants only on account of death of deceased, deduction with respect to various amounts received by the claimants. It was held by the Hon’ble Supreme Court that this amount accrues only on account of death of the deceased in a motor vehicle accident which is deductable – amounts/advantages accruing to the claimants as a result of some contract of act, which the deceased performed in his lifetime like the amount on account of insurance, bank deposits, shares, debentures, pensionary benefits, gratuity or grant of employment to a kin of deceased, which cannot be said to be outcome or result of death of deceased in a motor vehicle accident, even though these amounts may go into the hands of the claimants only after the death of the deceased. Hence, such amounts are not liable to be deducted.<br>26.<span style=\"white-space:pre\">	</span>The Hon’ble Supreme Court in the case of Sebastiani Lakra and Ors. V National Insurance Company&nbsp; Ltd.,&nbsp; and&nbsp; Anr. reported in AIR 2018 SC 5034, relying upon the earlier decision, the Hon’ble Supreme Court at para No.5, 6, 9, 12 and 16 held as under:</h4><h4 style=\"margin-left: 25px;\">“5. Section 168 of the Motor Vehicles Act, 1988 (for short “the Act”) mandates that “just compensation” should be paid to the claimants. Any method of calculation of compensation which does not result in the award of “just compensation” would not be in accordance with the Act. The word “just” is of a very wide amplitude. The courts must interpret the word in a manner which meets the object of the Act, which is to give adequate and just compensation to the dependants of the deceased. One must also remember that compensation can be paid only once and not time and again.<br>6. The traditional view was that while assessing compensation, the Court should assess the loss of income caused to the claimants by the death of the deceased and balance it with the benefits which may have accrued on account of the death of the deceased. However, even when this traditional view was being followed, it was a well-settled position of law that the tortfeasor cannot take benefit of the munificence or gratuity of others.<br>9. Thereafter, similar matter came up for consideration in Vimal Kanwar v. Kishore. This Court, following Helen C. Rebello case held that the amounts received by the heirs by way of provident fund, pension and insurance cannot be termed as “pecuniary advantage” liable for deduction. This Court also held that the salary received on compassionate appointment cannot be deducted.<br>12. The law is well settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependants or the legal heirs of the deceased on account of his death in a motor vehicle accident. The claimants/dependants are entitled to “just compensation” under the Motor Vehicles Act as a result of the death of the deceased in a motor vehicle accident. Therefore, the natural corollary is that the advantage which accrues to the estate of the deceased or to his dependants as a result of some contract or act which the deceased performed in his lifetime cannot be said to be the outcome or result of the death of the deceased even though these amounts may go into the hands of the dependants only after his death.<br>16. Deduction can be ordered only where the tortfeasor satisfies the court that the amount has accrued to the claimants only on account of death of the deceased in a motor vehicle accident.\"</h4><h4 style=\"\"><b style=\"background-color: rgb(255, 255, 0);\">X.<span style=\"white-space:pre\">	</span>CONCLUSION<br>27.<span style=\"white-space:pre\">	</span>For the reasons stated above, the point No.1 raised in the present appeal is answered in the negative holding that the tribunal is not justified in deducting the amount in a sum of Rs.17,82,336/- cannot be the income accrued out of the death of the deceased in a road accident and the impugned judgment and award passed by the tribunal deducting the insurance policy amount, which is contractual, cannot be sustained.&nbsp;</b><br>31. In view of the above, we pass the following order:-<br>(i) The Miscellaneous First Appeal is allowed.<br>(ii) The impugned Judgment and award passed by the Tribunal deducting Rs.17,82,336/- is hereby set aside.<br>(iii) The claimants are entitled to the said amount of Rs.17,82,336/-, as well as Rs.80,000/- towards love and affection, in addition to the compensation already awarded by the Tribunal.<br>(iv) The claimants are entitled for further enhanced compensation of (Rs.17,82,336 + Rs.80,000/-) Rs.18,62,336/- with interest @ of 6% per annum from the date of petition till the date of realization, in addition to Rs.20,86,862/- with 9% interest awarded by the Tribunal.<br></h4>', 'c62cd3c3f776e5b54bd33d994163720d.PNG', '63a7965ffd3452fedb11e5bcb1ad5551.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-04', 1, '', '', '2021-03-31 03:38:14', '2021-03-31 03:44:53'),
(648, 'IE6u2UgTI43AUKxQVvlR5x6Gp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act. Onus of establishing the accident is completely on the Insurance Company which is required to gather full information of the accident and confirm the same to the Tribunal. Karnataka High Court. 25 March 2021', '<h4>Ravi@Ravindra vs Thammanna and another. </h4><h4>Miscellaneous First Appeal 1541 of 2015 decided on 25 March 2021. </h4><h4>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/376017/1/MFA6863-14-25-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/376017/1/MFA6863-14-25-03-2021.pdf</a><br>Judgment Link:&nbsp;<br>1. MFA.6863/2014 is by the claimant seeking for enhancement, while MFA.1541/2014 is by the Insurance Company challenging the award of the Tribunal on the ground that there was no motor vehicle accident at all.<br>8. The Tribunal, on consideration of the evidence, came to the conclusion that an accident, as stated by the claimant, had occurred and the claimant was entitled to a total sum of `2,26,680/-.&nbsp;<br>9. Learned counsel for the claimant contended that the factum of the accident cannot be doubted since the entries in the medical records which had been made immediately after the accident consistently recorded that the claimant had stated that he suffered injuries as a result of the road traffic accident.&nbsp;<br>11. Sri O. Mahesh, learned Senior Counsel appearing for the Insurance Company contended that the police had investigated the complaint of the claimant that a motor vehicle accident had occurred and after a thorough investigation, they had come to the conclusion that the claimant had actually fallen from a tree and had not met with any motor vehicle accident. He submitted that since the police had filed a ‘B’ report and the same was accepted by the Court, it was not open for the Tribunal to record a finding that the claimant suffered injuries due to a motor vehicle accident. He submitted that the statements recorded by the police clearly indicate that the claimant and the other witnesses had admitted that the injuries had occurred due to a fall from the tree and that a complaint had been lodged only at the instigation of the villagers and the lawyers for the purpose of securing compensation. He submitted that in the light of the clear statement recorded by the police, the Tribunal could not have come to the conclusion that the accident had occurred. Learned counsel has relied upon certain contradictions in the statements in order to substantiate his contention.&nbsp;<br>22. Section 158(4) of the Act mandates the owner of the motor vehicle is to give such information as may be required to a police officer for the purpose of determining whether the vehicle was or was not being driven in contravention of Section 146 of the Act.<br>23. Section 158(6) of the Act mandates that as soon as any information regarding any accident involving death or bodily injury to any person is recorded or reported to a police officer, the police officer is required to forward a copy of the same within thirty days from the date of recording information to the Claims Tribunal having jurisdiction and send a copy thereof to the concerned insurer.<br>24. It is, therefore, clear that the scheme of the Act contemplates that primarily it is the duty of the driver of the motor vehicle to inform the police about the accident and for the police to thereafter inform the Claims Tribunal about the occurrence of the accident.<br>25. Rule 150 of the Central Motor Vehicles Rules (hereinafter referred to as ‘the CMV Rules’, for short) imposes an obligation on the police to submit a report in Form 54. The police officer is required to furnish the required information to the person eligible to claim compensation under Section 160 of the Act within seven days from the date of receipt of request and on payment of a fee of rupees ten.<br>26. The prescribed Form 54 contains information which is relevant to the occurrence of the accident, such as date, time and place of the accident, details of the injured or deceased, details of the hospital to which the victim was transported, the registration number of the vehicle, driving licence particulars and the name and address of the owner and the insurer.<br>29. Having regard to the scheme of the Act, the arguments advanced by Sri. O. Mahesh, learned counsel for the Insurer, that the First Information Report, statements recorded by the police, the charge sheet filed by the police would be vital pieces of evidence to prove or disprove the accident, do not really hold water.&nbsp;<br><b style=\"background-color: rgb(255, 255, 0);\">43. The Insurance Company is required to ascertain and verify facts about the insurance of the motor vehicles involved in the accident and confirm the same to the Claims Tribunal within the thirty days of receiving notice of the claim case Tribunal.</b><br>44. The Insurance Company is also required to move an application before the concerned registering authority and gather information about the motor vehicles involved and the driving licence held by the drivers.&nbsp;<br><b style=\"background-color: rgb(255, 255, 0);\">46. It is thus clear that from the year 2013 at least, the onus of establishing the accident is completely on the Insurance Company. The Insurance Company is required to gather full information of the accident, ascertain and verify the fact of insurance of the vehicle involved in the accident and confirm the same to the Tribunal.</b><br>47. This salutary and solemn duty cast on the Insurance Company cannot be wished by the Companies and it cannot shirk this responsibility cast on them statutorily by simply collecting the documents of the prosecution, such as the FIR, Statements and the Charge sheet and contend that they had proved or disproved the occurrence of the accident.<br><b style=\"background-color: rgb(255, 255, 0);\">49. Therefore, if an Accident Information Report or a report of the Registering Authority, is produced before the Claims Tribunal, the Tribunal can presume their contents to be correct, unless the contrary is proved. This, therefore, indicates that there is no burden cast upon the claimant at all to prove the occurrence of the accident and the entire onus on disproving the accident is on the Insurer.</b><br>50. The way in which the Rules are framed indicates that that the intent of the legislature was to basically ensure that a victim of a motor vehicle accident should be put to the least amount of difficulty in securing compensation and the entire duty to ascertain the facts relating to the accident would lie on the Insurance Company.<br>51. In my view, if the Insurance Companies do not discharge the duties imposed upon them under Rule 232 of the KMV Rules, it will have to be held that the Insurance Companies have accepted the occurrence of the accident and would be liable to pay compensation if they have issued a Certificate of Insurance.<br>53. Thus, after the year 2013, the Accident Information Report is itself to be treated as an initiation of a proceeding to claim compensation and an obligation is cast upon the Claims Tribunal to secure information and register a claim petition and notify all the persons concerned.<br></h4>', '4e02e4a70e5f0758e47ef2b3c1c08d85.jpg', 'be19760dd881571f2fdbf819276c27ba.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-25', 1, '', '', '2021-03-31 20:05:22', '2021-03-31 21:25:26'),
(649, '68iO59ZclGpFU2pLqJXtyWwJU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Agreement of sale. Signature verification by forensic expert. Although Court is expert of the experts, still it has some inherent constraints and court can get expert opinion. Karnataka High Court. 31 March 2021', '<h4>Farkunda and others vs Abdul Khaliq Ansari. </h4><h4>Writ Petition 35932 of 2016 (Gm-CPC) decided 31 March 2021. </h4><h4>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/376037/1/WP35932-16-31-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/376037/1/WP35932-16-31-03-2021.pdf &nbsp;</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:&nbsp;The suit in O.S.No.313/2008 is for a&nbsp; decree&nbsp; of&nbsp; specific performance; it has been founded&nbsp; on&nbsp; the&nbsp; agreement to sell dated 05.02.2007; it is filed by the respondent-plaintiff and the petitioners happen to be the defendant; suit is being resisted by filing the Written Statement; after trial of the proceedings an application was moved by the plaintiff’s side to refer the subject agreement for the forensic examination; the same having&nbsp; been&nbsp; favoured by the learned trial judge vide order dated 06.06.2016 a copy whereof is at&nbsp; Annexure-H,&nbsp; the petitioners are complaining before the Writ Court.<br>3. Having heard the learned counsel&nbsp; for&nbsp; the&nbsp; parties and having perused the petition papers, this Court declines to grant indulgence in the matter for the following reasons:<br>a) as mentioned above, the suit is one for specific performance; the value of the property comprised in the agreement on which the suit is founded appears to be considerable;&nbsp; the petitioners being the defendants, at para&nbsp; &nbsp;2 of their Written Statement have denied the execution&nbsp; of the agreement itself and the receipt of the consideration amount; that being the position, the learned judge in his accumulated wisdom has directed forensic examination of the subject document; that cannot be faltered, to say the least.<br><span style=\"background-color: rgb(255, 255, 0);\"><b><i>b) It has been the consistent view of several high Courts in the Country and more&nbsp; particularly&nbsp; this&nbsp; Court&nbsp; that whenever the signature is denied,&nbsp; ordinarily&nbsp; the&nbsp; Courts would not undertake examination of the same sans expert opinion; although it is stated that Court is expert of the experts, still it has some&nbsp; inherent&nbsp; constraints&nbsp; in&nbsp; matters like this as held by the Apex Court in State of Maharastra Vs. Sukhdeo Singh and Anr., 1992 SCR (3) 480.</i></b></span><br>c) This apart no prejudice will be caused to petitioner by the exercise undertaken by the&nbsp; Forensic Expert; challenge by the petitioners is preposterous, since Report of the expert may come out in their favour, a well; if&nbsp; it goes against their interest, they may file their objections therefor and the court below shall consider the same objectively before acting upon the report.<br>In the above circumstances, this petition fails; the learned judge of the Court below shall ensure immediate examination of the documents in question at the hands of the forensic expert by prescribing the time limit for accomplishment.<br>The respondent-plaintiff shall deposit Rs.5,000/- in the Court below as the tentative costs of forensic examination within a period of three weeks&nbsp; failing&nbsp; which the impugned order stands voided.&nbsp; The I Additional Senior Civil Judge at Kolar, shall take appropriate steps for receiving the said deposit in accordance with law.<br>The Forensic laboratory is directed to accomplish the forensic examination of the&nbsp; subject document and submit&nbsp; its report to the court below within a period of two months failing which the in-charge officer of the laboratory shall be present before this Court to offer explanation for the delay brooked.<br>The learned judge of the court below is requested to&nbsp; try &amp; dispose off the suit within a period of three months from the date the forensic report is received.<br>Registry shall send a copy of this judgment to the&nbsp; Court below forthwith.<br>No costs.<br><br></h4>', '7d461fd801d33cdec7dfb8427156a077.jpg', 'ebe2e0bcd1aa1d1aa06b2145b910c765.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-31', 1, '', '', '2021-04-02 00:48:08', '2021-04-02 01:05:41');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(4378, '4JAX75VSZB7sMVrzErZ36SwBD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Adverse Possession as Sword. Plea of adverse possession can be raised by the plaintiff by filing a suit for declaration to perfect his title. Karnataka High Court.   ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>B.K. Sundari and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 1674 of 2012 decided on 26 November 2019.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Natarajan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The case of the plaintiffs in brief before the trial Court is that the plaintiffs filed a suit as against the defendants seeking relief of declaration that they are in exclusive possession of the suit schedule property measuring 15 cents of land in Sy.No.334 of Biligeri Village, Madikeri Taluk, more fully described in the plaint schedule (hereinafter referred to as the ‘schedule property’) and they perfected their title by way of adverse possession openly peacefully, continuously as of their right and adverse to the interest of defendants and also seeking for permanent injunction restraining the defendants, their agents, servants from interfering with peaceful possession and enjoyment of the property. It is also contended that they are in possession of the property since 1970 and they constructed a wooden pole thatched house. Thereafter, in the year 1974, the husband of 1st plaintiff filed an application before the Land Tribunal for granting of occupancy right in his favour, which came to be dismissed and subsequently, the suit was filed by defendant Nos.4 and 5 who controls the Hakathoor Modern Primary School. The plaintiff No.1 filed a suit in OS.No.139/1992 against the Hakathoor Primary School before the Civil Judge (Jr.Dn.), Madikeri, and obtained the decree and against the said decree, the Head Master of the school filed R.A.No.14/1996 before the Civil Judge (Sr.Dn.), Madikeri, which came to be dismissed on 07.08.2003. In the meantime, the school authority filed a eviction suit against the plaintiffs in O.S.No.178/1996 on the file of Prl. Civil Judge (Sr.Dn.), Madikeri, which came to be dismissed on 05.10.2002 and no appeal has been preferred against the said suit. Defendant No.2 who is the son of defendant Nos.1 and 3 has filed O.S.No.151/1987 on the file of Addl. Munsiff, Madikeri for the relief of permanent injunction, which came to be dismissed on 03.01.1991. Since then, the plaintiffs are in possession and enjoyment of the schedule property. Hence, prayed for allowing the suit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Upon hearing the learned counsel for both the appellants as well as learned HCGP for the respondents, the substantial questions of law involved in this appeal are as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Whether the plaintiffs by filing the suit against the defendants perfected the title by way of adverse possession?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Whether the 1st Appellate Court is justified in reversing the judgment and decree passed by the trial Court, even though, the plaintiffs perfected the title and enjoyment of the property for more than 35 years?  <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Insofar as first substantial question of law is concerned as to whether the plaintiffs can file a suit against the defendants for perfecting the title by way of adverse possession and is there any bar for filing such a suit?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In this regard, learned counsel for the appellants has contended that though, in the earlier decisions of the Hon’ble Apex Court and various High Courts in the Country as held that only the defendant can take defence in the suit filed by the plaintiff by way of perfecting the title by adverse possession and cannot file a suit. However, the Hon’ble Apex Court in recent judgment in the case of Ravinder Kaur Grewal and Others Vs. Manjit Kaur and Others Radhakrishna Reddy (D) through Lrs., Vs. G.Ayyavoo and Others, reported in AIR 2019 SC 3827, while considering the appeal at paragraph No.46 and 61 has held as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“46. The conclusion reached by the High Court is based on an inferential process because of the language used in the III rd Column of Article 65. The expression is used, the limitation of 12 years runs from the date when the possession of the defendant becomes adverse to the plaintiff. Column No.3 of Schedule of the Act nowhere suggests that suit cannot be filed by the plaintiff for possession of immovable property or any interest therein based on title acquired by way of adverse possession. There is absolutely no bar for the perfection of title by way of adverse possession whether a person is suing as the plaintiff or being sued as a defendant. The inferential process of interpretation employed by the High Court is not at all permissible. It does not follow from the language used in the statute. The large number of decisions of this Court and various other decisions of Privy Council, High Courts and of English courts which have been discussed by us and observations made in Halsbury Laws based on various decisions indicate that suit can be filed by plaintiff on the basis of title acquired by way of adverse possession or on the basis of possession under Articles 64 and 65. There is no bar under Article 65 or any of the provisions of Limitation Act, 1963 as against a plaintiff who has perfected his title by virtue of adverse possession to sue to evict a person or to protect his possession and plethora of decisions are to the effect that by virtue of extinguishment of title of the owner, the person in possession acquires absolute title and if actual owner dispossesses another person after extinguishment of his title, he can be evicted by such a person by filing of suit under Article 65 of the Act. Thus, the decision of Gurudwara Sahib v. Gram Panchayat, Sirthala (supra) and of the Punjab & Haryana High Court cannot be said to be laying down the correct law. More so because of various decisions of this Court to the contrary.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>61. Resultantly, we hold that decisions of Gurudwara Sahab v. Gram Panchayat Village Sirthala (supra) and decision relying on it in State of Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj (supra) and Dharampal (dead) through LRs v. Punjab Wakf Board (supra) cannot be said to be laying down the law correctly, thus they are hereby overruled. We hold that plea of acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on aforesaid basis in case of infringement of any rights of a plaintiff”.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. In view of the judgment of the Hon’ble Apex Court that there is no bar for the plaintiffs to file a suit to perfect the title by way of adverse possession. Such being the case, the suit of the plaintiffs is sustainable and maintainable for perfecting the title by way of adverse possession. Accordingly, answered the first substantial question of law in favour of the plaintiffs as against the defendants.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Insofar as second substantial question of law is concerned as to whether the 1st Appellate Court justified in deciding the case holding that there is no evidence to prove the adverse possession? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. These judgments clearly go to show that the plaintiffs are in possession and enjoyment of the suit schedule property from the year 1970 and it is also referred that in the year 1974 the husband of the 1st plaintiff namely Kariyappa Rai filed an application before the Land Tribunal under the Land Reforms Act, 1974 for re-granting of the land, which came to be dismissed and it is also not in dispute that the suit in O.S.No.139/1992 was filed by plaintiff No.1 and obtained the decree. This decree was obtained by the plaintiffs in their favour, which clearly goes to show that they are in possession and enjoyment of the property for more than 30 years as on the date of filing the suit in the year 2005. The trial Court also considered the tax paid receipts. Ex.P.1 is the Jamabandi which reveals that the owner of the land is Government. Exs.P.2 to P.7 are the tax paid receipts pertaining to the dates of 21.1.1979, 15.02.1994, 23.03.1993, 04.03.1981, 10.03.1995 etc., which all go to show that the plaintiffs are paying the taxes from 1979 till 2001. Ex.P.14 is the certificate issued by the Hakathoor Grama Panchayath, which also shows that plaintiff No.1 and her husband are in possession of the house property from 1970. Ex.P.19 is another certificate issued by the President of the Grama Panchayath, Hakathoor, which states that the plaintiffs are residing in the suit schedule property from 1970 till date. Ex.P.26 is the receipt for payment of house tax by plaintiff No.1. These documents clearly corroborates with the evidence of P.Ws.1 and 2 and they are able to prove that they are in possession and enjoyment of the suit schedule property for more than 35 years. The trial Court has rightly decreed the suit by appreciating the evidence. Even though, the defendants have permitted to cross-examine the P.Ws.1 and 2, but nothing elicited to disbelieve their evidence. Even though the defendants have not chosen to file the written statement, but contested the case. However, the defendants have not chosen to resume the land in  question for the Government except filing the appeal before the 1st Appellate Court. The 1st Appellate Court has not properly appreciated the evidence and documents produced by the plaintiffs before the trial Court. Absolutely, there is no evidence let in by the defendants before the trial Court. Such being the case, the 1st Appellate Court has committed error in setting aside the judgment and decree passed by the trial Court. In the absence of nil evidence on the side of defendants, considering the evidence on record and in view of the judgment of the Hon’ble Apex Court stated supra, the plaintiffs are successful in proving the title by way of adverse possession by enjoying the property for more than 35 years. Therefore, they are entitled for decree. The judgment passed by the 1st Appellate Court is not correct and not supported any documentary or oral evidence on the side of the defendants, which requires to be set aside. Hence, I pass the following</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The appeal filed by the appellants/plaintiffs is allowed. </b></span></p>', '6cf68ce2175111d43a02df7a62867003.JPG', '1633a5453655443e0140abbb9e19d703.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2024-04-01', 1, '', '', '2024-03-31 18:37:14', '2024-04-01 08:05:54'),
(4377, '79mH9Sgy1t4kwdLwNf0bPjz75', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Proceedings before the Lok–Adalat are not judicial proceedings. Lok-Adalat cannot entertain applications where Judicial orders are required to be passed. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Pooja Vs Siddanna and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 205205 of 2019 decided on 18 March 2024.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice V Srishananda.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. Brief facts of the case are as under:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The petitioner being the minor defendant in O.S.No.99/2007 was represented by her grandfather namely Gunderao. Suit purportedly ended in a compromise by filing a petition under Order 23 Rule 3 of CPC. An application was also filed by the learned counsel for the petitioner under Order 32 Rule 7 of CPC for permitting grandfather of the petitioner seeking permission to enter into compromise.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">7. Having heard the learned counsel for the parties, this Court perused the material on record meticulously. On such perusal of the material on record, it is crystal clear that the proceedings before the Lok – Adalath is not a judicial proceedings. It may be a fact that a Judicial Officer preside over the Lok – Adalath as a conciliator along with an advocate conciliator. But before the Lok-Adalath such a Judicial Officer is not entitled to discharge the job of a ‘Judge’ and his role is only that of a conciliator.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">8. Therefore, by sheer logic, it would result that the Lok – Adalath cannot entertain an application filed under Order 23 Rule 3 of CPC or for that matter, any other applications where judicial orders are required to be passed.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">9. Further, it is settled principles of law that the petition filed under Order 23 Rule 3 of CPC is to be accepted by the Court after entering satisfaction. Such a power is not available to the conciliators who preside over the Lok – Adalath (One of them being a Judicial Officer, but will be acting as a conciliator).</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">10. Under such circumstances, since the conciliators have exercised the judicial powers while presiding over the Lok – Adalath, order passed by the Lok – Adalath in accepting the compromise and directing the decree of the suit needs to be set aside as it is oppose to the settled principles of law.<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">ORDER</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">i. The Writ Petition is allowed. </span></span></p>', '2a8a9357b2bf25f1609cdb2ca93ada31.JPG', '57bd2bc0db06be6adcb8810d702eca0d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2024-04-01', 1, '', '', '2024-03-31 18:35:08', '2024-04-01 03:20:44'),
(4376, '3bPBTUO37RqvjY4rFg1VNpBZN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Anticipatory bail can be granted even after cognizance of an offence is taken and the chargesheet is filed. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Ramanjaneyulu and others Vs State of Karnataka and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Criminal Appeal 390 of 2024 decided on 19 March 2024.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Mohammad Nawaz.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">This appeal is directed against the order dated 9.2.24 passed by the Court of LXX Additional City Civil and Sessions Judge and Special Judge, Bengaluru, whereby Crl.Misc.No.686/24 preferred by the appellants herein under Section 438 of Cr.P.C. has been rejected.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. Respondent No.2/complainant filed a complaint under Section 200 of Cr.P.C. on the file of the Court of City Civil and Sessions Court (Special Court) at Bengaluru, against the appellants/accused Nos.1 and 2 alleging commission of offences under Section 504, 506, 153(A), 109, 500, 501 and 120B r/w Section 34 of IPC and Section 3(i)(x) of Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘SC/ST (PoA) Act’). The learned Sessions Judge referred the matter to ACP, Kengeri Gate Sub-Division, Bengaluru, for investigation. Upon conducting the investigation, a ‘B’ report was submitted. The complainant filed a protest petition. The learned Sessions Judge, by an order dated 10.10.2023, proceeded to take cognizance of the offences alleged and issued summons to the accused. Further, by an order dated 28.11.2023, issued NBW to the accused.  </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">15. Be that as it may, this Court having carefully perused the entire material on record is of the considered view that the specific allegations made against the appellants are not sufficient to show a prima facie case for the offences alleged, particularly under the provisions of the SC/ST (PoA) Act. It cannot be said the appellants have committed any such atrocities against the complainant on the ground that he is a member of the Scheduled Caste. Hence, Section 18 or 18A of the said Act, will not come in the way of considering the prayer of the appellants, seeking pre-arrest bail.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">16. In Hitesh Verma v. State of UttarKhand reported in (2020) 4 SCC 710, the Hon’ble Apex Court has observed that all insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">17. The learned Sessions Judge was not proper in rejecting the petition filed under Section 438 of Cr.P.C., observing that in the present case already congnizance has been taken, as such anticipatory bail of the accused cannot be considered. It is relevant to extract para-7 of the judgment of the Hon’ble Apex Court in Bharat Choudhary’s case (supra), which is extracted hereunder:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><i>“7. From the perusal of this part of Section 438 of Cr.P.C., we find no restriction in regard to exercise of this power in a suitable case either by the Court of Session, High Court or this Court even when cognizance is taken or a charge-sheet is filed. The object of Section 43 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a Court has either taken cognizance of the complaint or the investigating agency has filed a charge-sheet, would not by itself, in our opinion, prevent the Courts concerned from granting anticipatory bail in appropriate cases. The Court has the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 of Cr.P.C. even when cognizance is taken or a charge-sheet is filed provided the facts of the case require the court to do so.”<br></i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">ORDER</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">i. Appeal is allowed. </span></span></p>', '628aad93d604dfe56f334b087bcd01e5.JPG', '0168eacabb8045ae19354337dbff68ee.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2024-04-01', 1, '', '', '2024-03-31 18:33:17', '2024-04-01 06:28:45'),
(4375, 'WCc9rJWk0jK0nbMZSJgnmTAmt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Government Tender. Constitutional Court cannot sit in the seat of Tender Scrutiny Committee and go on interfering at every stage of tender. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. S.P. Enterprises Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 7324 of 2024 decided on 26 March 2024.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner, which is a partnership concern, is before this Court calling in question an order dated 29-02-2024 which rejects the technical bid of the petitioner for tenders as found in the prayer. A consequent direction by issuance of a writ in the nature of mandamus is also sought to consider the bids of the petitioner afresh without insisting upon EMD along with other bids for the procurement year 2023-24.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The facts, in brief, germane are as follows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner, a proprietorship concern claims to be a Micro, Small and Medium Enterprise (‘MSME’) registered on 03-02-2021. The petitioner was treated as a small enterprise by the 2nd respondent/Karnataka Soaps and Detergents Limited (hereinafter referred to as ‘the Company’ for short). The bids submitted by the petitioner were accepted without insisting upon earnest money deposit for the year 2023. The petitioner then emerges as the successful tenderer for the previous year. For the current year, the notice inviting tender is issued by the Company in the month of December, 2023 for supply of chemicals and perfumery raw materials. The specification in the tender was that companies which were small enterprises are exempted from payment of earnest money deposit. The petitioner at the time of registration was a small enterprise but due to increase in turn over, it became a medium enterprise after the year 2021-22. It is the submission that in the notification issued by the competent authority it is stated that in the event of enterprise gets transformed from micro or small enterprise to medium enterprise, it would be entitled to certain continued benefits for a period of three years from the said date of change. The petitioner claims to have exercised its right of not&nbsp;furnishing any EMD on the score that it continues to get the benefit of small enterprise. Technical bid of the petitioner is rejected without divulging any ground. Therefore, the petitioner knocks at the doors of this Court, on noticing on the web portal that the technical bid of the petitioner had been rejected. This Court granted an interim order of status quo to be maintained, which is in operation till date.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The issue is,&nbsp;<i>whether this Court would tear down micro nuances of a tender and hold the rejection of petitioner’s technical bid as invalid in the midstream of a tender?</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. The reason for rejection of the petitioner’s technical bid is the petitioner’s own conduct of not filling up the application in an appropriate manner. It is submitted by the learned senior counsel for the 2nd respondent/Company that everything is computerized. Whatever information is available will be scrutinized and if the said information is incorrect, the application comes to be rejected. The entire process takes place through artificial intelligence. The learned senior counsel would further emphasize that the petitioner&nbsp;admittedly is not a micro or small enterprise. It is a medium enterprise and medium enterprise is not exempt from deposit of EMD. The learned senior counsel for the petitioner places reliance upon a notification of Government that even after the enterprise goes from micro or small to become a medium, it is entitled to claim non-tax benefits for a period of three years.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The notification mandates that in case of upward change from micro or small to medium enterprise it shall continue to avail all non-tax benefits. Whether EMD classifies to be a non-tax benefit is necessary to be noticed. The learned counsel representing the impleading applicant, to assist the Court, has placed on record a judgment rendered by the High Court of Gauhati in JUMBO PACKAGING v. NUMALIGARH REFINERY LIMITED1 wherein the High Court has held as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>32....&nbsp;The non-tax benefit includes various supports provided by the Ministry of Micro, Small and Medium Enterprises such as market development assistance, funds for designer IPR, quality credit guarantee, etc. The Market Development Assistance (MDA) Scheme offers funding for participation in the industrial fairs and trade, delegation to hold the Micro, Small and Medium Enterprises Development Overseas Market. The said benefit cannot be held to include allowing the respondent No. 3 to participate in a tender specifically meant for the Micro and Small&nbsp;Enterprises for purchase of reserved items as per appendix of Order, 2012.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>36....&nbsp;he NIT is meant specifically for participation fulfills the status of “Micro” and “Small” Enterprises and as such the respondent No. 3 being not a Micro-Small Enterprise has no capacity to participate in the tender process there being no relaxation clause as aforesaid. The items proposed to be purchased are reserved and the statute mandates that these are to be purchased only from the “Micro and Small Enterprises”. In such a situation the act of respondent No. 1 in purchasing items from the respondent No. 3 is clearly in violation of the statutory provisions and definitely against the public interest. The act of allowing the respondent No. 3 to participate would deprive similarly situated persons who owing to non-mentioning of the relaxation clause as aforesaid might not have participated in the tender process.”</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Court holds that non-tax benefit would not mean the exemption from payment of EMD. I am in agreement with the view taken by the High Court of Gauhati, claim of non-tax benefit cannot stretch to exemption of EMD. A Division Bench of the High Court of Delhi in M/s S.B. TRANSPORT COMPANY v. CONTAINER&nbsp;CORPORATION OF INDIA holds that payment of EMD has some consequence without which the tender itself could not be presented before the Tender Inviting Committee. The Court holds as follows: &nbsp;<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>28. Having considered the facts of the case and the arguments submitted by the learned counsel for the parties, in our view, the requirement of submitting the EMD was an essential condition of the tender. This is clearly discernible from the mandatory language used in the Instruction to Tenderers as also in the tender conditions. We have already pointed out clause 5 of Chapter 1 of the tender conditions which clearly&nbsp;stipulated that if at any stage during the evaluation of the technical bid, the EMD was found to be invalid, the respective bidder\'s bid would be summarily rejected. Furthermore, in clause 2.3 of Chapter 2 of the tender conditions it was categorically provided that documents submitted without EMD ‘will be summarily rejected’. Clause 7 of Chapter 1 of the tender conditions also stipulates that if the EMD is found invalid at any stage during the evaluation of the e-bid, the respective bidder\'s bid would be summarily rejected.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">These are all in the realm of consideration of the tender documents by the Tender Scrutiny Committee. This Court would not sit in the&nbsp;seat of Tender Scrutiny Committee and go on interfering at every stage of tender. The petitioner has a statutory remedy of filing an appeal before the Appellate Authority under Section 16 of the Karnataka Transparency in Public Procurements Act, 1999 once the work order is issued to the successful tenderer, notwithstanding its rejection of the technical bid. If any indulgence is shown in the teeth of the aforesaid facts, it would run foul of the judgment of the Apex Court in the case of TATA MOTORS LIMITED V. BRIHAN MUMBAI ELECTRIC SUPPLY &amp; TRANSPORT UNDERTAKING (BEST) AND OTHERS&nbsp;</span><span style=\"font-size: 1rem;\">wherein the Apex Court holds as follows:&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>“27....&nbsp;What is more relevant, M/s. I.V.R. Construction Ltd. who have challenged this award of tender themselves do not fulfil the requisite criteria. They do not possess the prescribed experience qualification. Therefore, any judicial relief at the instance of a party which does not fulfil the requisite criteria seems to be misplaced .\"</i><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Therefore, leaving open the remedy available to the petitioner, the petition stands rejected. Interim order, if any subsisting, stands dissolved.&nbsp;</b></span></p>', 'f998ac83b6ee80ee688edf165cbe2e85.jpeg', '374802f25708ada23ccf16ad75c59d7c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2024-03-31', 1, '', '', '2024-03-31 18:31:53', '2024-04-01 12:38:48');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(4373, 'K5K9w5EWNqkno7zbPtoI3MygP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cross border adoption of foreign child by Indian parents. Authoritative judgement from the Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Ravi Kumar C and others Vs Central Adoption Resource Authority and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 17967 of 2023 decided on 26 March 2024.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice M. Nagaprasanna.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The petitioners/husband and wife are before this Court seeking a direction by issuance of a writ in the nature of mandamus directing the respondents to consider the representation submitted by the petitioners through electronic mail and redress the grievance. The grievance is concerning cross-border adoption of a child.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">11. To consider the grievance of the petitioners, it becomes germane to notice certain provisions of the Act and the Adoption Regulations. Sections 58, 60 and 63 of the Act read as follows:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><i>“58. Procedure for adoption by Indian prospective adoptive parents living in India.—(1) Indian prospective adoptive parents living in India, irrespective of their religion, if interested to adopt an orphan or abandoned or surrendered child, may apply for the same to a Specialised Adoption Agency, in the manner as provided in the adoption regulations framed by the Authority.</i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><i>(2) The Specialised Adoption Agency shall prepare the home study report of the prospective adoptive parents and upon finding them eligible, will refer a child declared legally free for adoption to them along with the child study report and medical report of the child, in the manner as provided in the adoption regulations framed by the Authority.</i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><i>(3) On the receipt of the acceptance of the child from the prospective adoptive parents along with the child study report and medical report of the child signed by such parents, the Specialised Adoption Agency shall give the child in pre-adoption foster care and file an application before the District Magistrate for obtaining the adoption order, in the manner as provided in the adoption regulations framed by the Authority. <br></i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><i>(4) On the receipt of a certified copy of the order passed by the District Magistrate, the Specialised Adoption Agency shall send immediately the same to the prospective adoptive parents.</i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><i>(5) The progress and wellbeing of the child in the adoptive family shall be followed up and ascertained in the manner as provided in the adoption regulations framed by the Authority. <br></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><i>“60. Procedure for inter-country relative adoption.—(1) A relative living abroad, who intends to adopt a child from his relative in India shall obtain an order from the District Magistrate and apply for no objection certificate from Authority, in the manner as provided in the adoption regulations framed by the Authority.</i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><i>(2) The Authority shall on receipt of the order under sub-section (1) and the application from either the biological parents or from the adoptive parents, issue no objection certificate under intimation to the immigration authority of India and of the receiving country of the child. <br></i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><i>63. Effect of adoption.—A child in respect of whom an adoption order is issued by the District Magistrate, shall become the child of the adoptive parents, and the adoptive parents shall become the parents of the child as if the child had been born to the adoptive parents, for all purposes, including intestacy, with effect from the date on which the adoption order takes effect, and on and from such date all the ties of the child in the family of his or her birth shall stand severed and replaced by those created by the adoption order in the adoptive family:</i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><i>Provided that any property which has vested in the adopted child immediately before the date on which the adoption order takes effect shall continue to vest in the adopted child subject to the obligations, if any, attached to the ownership of such property including the obligations, if any, to maintain the relatives in the biological family.”</i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">In exercise of powers conferred under Clause (c) of Section 68 and Clause (3) of Section 2 of the Act, the Union of India had promulgated Adoption Regulations 2017 which come to be superseded by Adoption Regulations of 2022. Certain clauses of Adoption Regulations are also germane to be noticed. Regulations 23, 41 and 70 read as follows:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><i>“23. Procedure for adoption of a child from a foreign country by Indian citizens.—(1) Necessary formalities for adoption of a child from a foreign country by Indian citizens shall initially be completed in that country as per their law and procedure.</i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><i>(2) On receiving Home Study Report of the prospective adoptive parents (including supporting documents), Child Study Report and Medical Examination Report of the child, the Authority shall issue the approval, as required in the cases of adoption of children coming to India as a receiving country under Article 5 or Article 17 of the Hague Adoption Convention.</i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><i>(3) A child adopted abroad by the Indian citizens, having a foreign passport, and requiring the Indian visa to come to India, shall apply for visa or Overseas Citizen of India Card to the Indian mission in the country concerned, who may issue entry visa to the child after checking all the relevant <br></i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><i>documents so as to ensure that the adoption has been done following the due procedure.</i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><i>(4) The immigration clearance for the child adopted abroad shall be obtained from the Central Government in the Foreigner’s Division, Ministry of Home Affairs, through the Indian diplomatic mission to that country. <br></i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><i>41. Central Adoption Resource Authority.—The Authority shall:— (5) provide support and guidance to State Adoption Resource Agencies, District Magistrates, District Child Protection Units, Specialised Adoption Agencies and other stakeholders on adoption related matters through trainings, workshops, exposure visits, consultations, conferences, seminars and other capacity building programmes;</i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><i>70. Issue of No Objection Certificate and Conformity Certificate.—</i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><i>(1) On receipt of verification certificate from the District Magistrate, on the registered adoption deed and necessary permission under Articles 5 or 17 from the receiving country as provided in the Hague Adoption Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, the Central Adoption Resource Authority shall issue No Objection Certificate for Hague ratified countries under Article 17(c) and Conformity Certificate under Article 23 of the Convention.</i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><i>(2) In the case of countries outside the Hague Adoption Convention, a support letter shall be issued by the Central Adoption Resource Authority.” </i><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Section 58 of the Act deals with procedure for adoption by Indian prospective adoptive parents living in India. The Indian prospective parents living in India irrespective of their religion if interested to adopt, may apply to the Specialised Adoption Agency in the manner provided in the Adoption Regulations. That would be adoption in India. Section 60 deals with inter-country relative adoption. This mandates that a relative living abroad who intends to adopt a child from his relative in India is to follow the procedure. The effect of such adoption would be legalizing the adoption and to maintain the relatives in the biological family of the child. These are situations where adoption is permissible inter-country only for a relative. The situation that has emerged in the case at hand does not figure in any of the provisions of the Act, but figures in the Adoption Regulations (supra).</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">12. Regulation 23 quoted above deals with the procedure for adoption of a child from a foreign country by an Indian citizen. Sub-regulation (2) of Regulation 23 mandates that on receipt of Home Study Report of the prospective adoptive parents, the Authority shall issue an approval as required in the cases of adoption of children coming into India as a receiving country under Article 5 or Article 17 of Hague Adoption Convention. India is a signatory to the Hague Adoption Convention; Uganda is not. Therefore, the rights of the child to be treated as a citizen of India, on legalizing adoption, lies in limbo. The Adoption Regulations vest legalizing of adoption with the CARA/1st respondent. The procedure and the reason for creation of the Authority are found in Regulation 41 (supra). The Regulation 41 mandates issuance of a no objection certificate in cases of adoption under the Hindu Adoptions and Maintenance Act. The case at hand is not an adoption under the Hindu Adoptions and Maintenance Act. Regulation 70 (supra) requires a no objection and conformity certificate by the Authority in the event the adoption is in consonance with Hague Convention. As observed hereinabove Uganda is not a signatory to Hague Convention; India is.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">13. Regulation 23 directs that on receipt of Home Study Report, no objection would be given or approval for such adoption would be rendered by India as a receiving country only under Article 5 or Article 17 of the Hague Adoption Convention. Therefore, the situation now is, if it is not Hague Adoption Convention, the rights of the child or the parents over the child would be left in the state of uncertainty. The petitioners are not the ones who are asking for legalizing, an illegal adoption. They are the ones asking recognition of a legalized adoption under the Regulations of the Nation. They have in their arm complete legal process in the High Court of Uganda qua their right over the child. Therefore, it  becomes necessary to iron out the creases even in the Regulations by harmonizing the provisions of the Act and the Regulations to accept such adoption and direct issuance of a no objection or approval of such adoption. Ironing out the creases by the constitutional Courts of the provisions of law as promulgated, without disturbing the content of the statute, is permitted exercise of judicial review, as the law makers at the time of making the law would not have envisaged a situation of the kind that is generated in the case at hand. Reference being made to the judgment of the Court of Appeal, England, in the case of SEAFORD ESTATE V. ASHER , becomes apposite, in which Lord Denning observes as follows:</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><i>“Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word sc as to give “force and life” to the intention of the legislature.</i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">It is therefore, on such ironing out the creases, the petitioners become entitled to the redressal of their grievance.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">15. As afore-quoted, the Courts at Uganda have passed certain orders declaring the rights of the petitioners; the rights over the child. The Indian citizens are granted guardianship and all rights as parents over the child. The petitioners are, therefore, now parents of the adopted child. These are conclusive orders passed by the competent Courts in Uganda and Keenya. The petitioners seek those orders to be implemented and granted relief to them. The issue is, whether it could be accepted. Section 13 of the Code of Civil Procedure reads as follows:</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><i>“13. When foreign judgment not conclusive </i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><i>(a) where it has not been pronounced by a Court of competent jurisdiction;</i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><i>(f) where it sustains a claim founded on a breach of any law in force in India.”</i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Section 13 mandates that decree passed by a foreign Court is conclusive between the parties subject to clauses (a) to (f) thereof. The purport of Section 13 need not detain this Court for long or delve deep into the matter. The Apex Court in the case of ANOKHA (SMT.) v. STATE OF RAJASTHAN has held as follows:</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><i>16.... Respondents 2 and 3 have produced sufficient evidence to justify their suitability to be adoptive parents. There was a judicially directed scrutiny by a local governmental agency in Venice. The enquiry report has resulted in a judgment passed by the Court at Venice, Italy. That judgment can be accepted by this Court under Section 13 of the Code of Civil Procedure, particularly when the respondents have filed the investigation report and other material on the basis of which the judgment was delivered.”</i><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Earlier to the aforesaid judgment of the Apex Court, a Division Bench of this Court in the case of DEVA PRASAD REDDY v. KAMINI REDDY has held as follows:<br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><i>One of the situations, where such a judgment will not be conclusive and binding is where it has not been pronounced by the Court of competent jurisdiction. The argument advanced on behalf of the appellant therefore was that the judgment of the American Court dissolving the marriage between the respondent and Robert Selvam was not conclusive and binding as the sea had not been pronounced by a Court of competent jurisdiction. It was also argued that the judgment of the American Court was not binding and conclusive because it was founded on a breach of personal law applicable to the parties before the said Court. Inasmuch as the American Court has dissolved the marriage on a ground not otherwise recognised by the law applicable to the parties, it had committed an error which vitiated the judgment.</i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><i>We are in respectful agreement with the view expressed in the above decision. The provisions of Section 13 of the CPC declare the decree passed by any Foreign Court to be conclusive between the parties except where the same falls under any one of the clauses from (a) to (f) enumerated thereunder. The validity of any such decree is therefore beyond the pale of any challenge unless the same is by one of the parties affected by the decree and on a ground which falls in one of the clause enumerated in Section 13. Any person, who was a stranger to the proceedings culminating in the passing of a decree cannot assail the validity of such a decree unless he had a preexisting interest which the decree affects adversely…..”</i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"> The High Court Madras in FRANK M.COSTANZO v. THE REGIONAL PASSPORT OFFICER has held as follows<br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><i> “In the case before us although the Guidelines do not apply, Respondents 2 and 3 had produced evidence which fulfilled all the particulars required of a Home Study Report. The appellant has repeatedly affirmed her closeness to Respondents 2 and 3 and her conviction that they would nourish and care for baby Alka as if she was their own. Respondents 2 and 3 have produced sufficient evidence to justify their suitability to be adoptive parents. There was a judicially directed scrutiny by a local governmental agency in Venice. The enquiry report has resulted in a judgment passed by the Court at Venice, Italy. That judgment can be accepted by this Court under Section 13 of the Code of Civil Procedure, particularly when the respondents have filed the investigation report and other material on the basis of which the judgment was delivered.”</i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">The High Court of Kerala in the case of ARUN.A V. THE MARRIAGE OFFICER (SUB-REGISTRAR), KARAKULAM while considering an identical circumstance, in a matrimonial case, has held as follows</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><i>It is thus evident that though the general rule is that a foreign matrimonial judgment can be recognized in India only if the jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted are in accordance with the matrimonial law under which the parties are married, such judgments can be accepted as conclusive in India where the respondent voluntarily and effectively submits to the jurisdiction of the forum and consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties. As stated above, the materials on record indicate beyond doubt that the petitioner and his divorced wife have voluntarily and effectively submitted to the jurisdiction of the UAE Personal Status Court and consented to grant divorce to each other, although the jurisdiction of the said forum is not in accordance with the provisions of the matrimonial law applicable to them. In the circumstances, I am of the view that the courts in India have to recognise Ext.P4 divorce certification.</i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">16. On a coalesce of the judgments rendered by the Apex Court, Division Bench of this Court and the High Courts of Madras and Kerala, as afore-quoted, what would unmistakably emerge is that, if rights of the parties have been conclusively determined, those orders would become implementable through the Courts of the nation. The rights of the parties are determined by the Courts at Uganda. The rights, I mean, of the petitioners in the subject petition. If the petitioners’ rights are determined and they are as on today citizens of this Country, the orders would undoubtedly enure to the benefit of the petitioners. The petition thus succeeds. Therefore, the petitioners are entitled to the relief that they have sought for in the petition.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">ORDER</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(i) Writ Petition is allowed. </span></p>', '86720b820772d7fd7f0d955882c2d096.jpeg', 'ad88677a5104fec33e80a4b1dbd8b987.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2024-04-02', 1, '', '', '2024-03-31 18:14:22', '2024-04-02 10:29:34'),
(651, 'mZN1dmB9WUTV8db6GXRMqPs1b', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Decree obtained by fraud. Even a judgment and decree affirmed by the apex Court of the country can be declared void by the trial Court if it is proved that the same was obtained by practicing fraud upon Court.  Supreme Court of Bangladesh. 24 Nov 2020', '<h4>Government of Bangladesh and others vs Sadeque Ahmed Nipu and another. </h4><h4>Civil Appeal 190 of 2011 decided on  24 November 2020. </h4><h4>Judgment Link: <a href=\"http://ww2.supremecourt.gov.bd/resources/documents/1759231_CA_190of2011.pdf\" target=\"_blank\">http://ww2.supremecourt.gov.bd/resources/documents/1759231_CA_190of2011.pdf</a></h4><h4><span style=\"font-size: 1.3125rem;\">Chief Justice Syed Mahmud Hossain, </span>Justice Hasan Foez Siddique, Justice Md. Nuruzzaman and Justice Obaidul Hassan</h4><h4><span style=\"font-size: 1.3125rem;\"><span style=\"background-color: rgb(255, 255, 0);\">Relevant portion</span>: Fraud vitiates everything. As the respondents practiced </span>fraud and no judgment and decree was passed on 15.03.1971, so the said Sujayet Ali Kha did not have any right title over the disputed property as well as the respondents had not acquired any right over the disputed property. So, the question of releasing the property from the list of vested property in favour of the respondents does not arise at all as they have no right over the disputed land/property. </h4><h4>On consideration of the matters discussed above, we are of the view that the respondents obtained judgment and decree practicing fraud upon the High Court Division. If fraud ipracticed upon Court for obtaining any order, then the order of the Court is liable to be set aside. It was held in the case of Government of Bangladesh and another vs. Mashiur Rahman and others [50 DLR(AD) 205] that “It is a cardinal principle of administration of justice that no result of any judicial proceeding should be allowed to receive judicial approval from any court of law whenever it is obtained by practicing fraud upon the court; reason being fraud demolishes the very foundation of sanctity of such judicial proceeding. It is also well established principle of law that fraud vitiates all judicial proceeding. Thus contravention of the provision of law, cannot be a valid ground for allowing an order obtained by fraud to stand. When the trial court itself on consideration of the materials on record was satisfied that a fraud had been committed in obtaining the ex parte decree it was the duty of the trial court to set aside the ex parte decree. In the case of Abdul Jalil & others vs. Islami Bank Bangladesh Ltd. and others [64 DLR(AD) 107] the Appellate Division observed that,</h4><h4 style=\"margin-left: 25px;\">“It is true that fraud vitiates everything; even a judgment and decree affirmed by the apex Court of the country can be declared illegal and void by the trial Court if it is proved that the judgment and decree was obtained by practicing fraud upon Court. But mere allegation of fraud is not enough to entertain a suit for declaring a judgment and decree affirmed by the apex Court of country illegal. Unless strong prima facie case of fraud is made out and sufficient acceptable evidence and materials are produced before Court to substantiate the allegation of fraud a suit for declaring a judgment and decree affirmed by the apex Court of the country should not be entertained.”</h4><h4>In this present case, it has been proved that the respondents obtained judgment and decree practicing fraud upon the High Court Division. The High Court Division made a serious error of law making the Rule absolute based on fictitious judgment and decree passed in Title Suit No.587 of 1970 dated 15.03.1971, which has no existence at all. So, we are constraint to interfere with the judgment and order passed by the High Court Division in Writ Petition No.6053 of 2008 on 17.12.2009. Accordingly, the judgment and order passed in Writ Petition No.6053 of 2008 on 17.12.2009 is set aside. </h4>', '85d3929afe1e3456b4333d48ca8127b6.jpg', '234d71fe72fe1b0d876b73cd70db47b8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-24', 1, '', '', '2021-04-03 01:39:05', '2021-04-03 01:42:09'),
(652, 'Xubtn8AHtSsxxQDLXPVk5slFD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Fraud. A judgment, decree or order obtained by fraud on court is a nullity in the eye of the law. Such a judgment by the first court or by the final court has to be treated as nullity by every court in any proceedings. Supreme Court. 7 March 2007', '<h4>A.V. Papayya Sastry v. Govt. of A.P., (2007) 4 SCC 221&nbsp;<br>Civil Appeals Nos. 5097-99 of 2004, decided on March 7, 2007</h4><h4>Justice C.K. Thakker and Justice Lokeshwar Singh Panta&nbsp;</h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/jonew/judis/29751.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/29751.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant Paragraphs</span>: 21. It is well-settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed:<br>“Fraud avoids all judicial acts, ecclesiastical or temporal.”<br>22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order—by the first court or by the final court—has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.<br>23. In the leading case of Lazarus Estates Ltd. v. Beasley2 Lord Denning observed: (All ER p. 345 C)<br>“No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud.”<br>24. In Duchess of Kingstone, Smith’s Leading Cases, 13th Edn., p. 644, explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was “mistaken”, it might be shown that it was “misled”. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment.<br>25. It has been said: fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent).<br>26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue&nbsp; advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of “finality of litigation” cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants.<br>27. In S.P. Chengalvaraya Naidu v. Jagannath3 this Court had an occasion to consider the doctrine of fraud and the effect thereof on the judgment obtained by a party. In that case, one A by a registered deed, relinquished all his rights in the suit property in favour of C who sold the property to B. Without disclosing that fact, A filed a suit for possession against B and obtained preliminary decree. During the pendency of an application for final decree, B came to know about the fact of release deed by A in favour of C. He, therefore, contended that the decree was obtained by playing fraud on the court and was a nullity. The trial court upheld the contention and dismissed the application. The High Court, however, set aside the order of the trial court, observing that “there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence”. B approached this Court.<br>28. Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as “wholly perverse”, Kuldip Singh, J. stated: (SCC p. 5, para 5)</h4><h4 style=\"\">“The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.”<br>29. The Court proceeded to state: (SCC p. 5, para 6)<br>“A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.”<br>30. The Court concluded: (SCC p. 5, para 5)<br>“The principle of ‘finality of litigation’ cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants.”<br>31. In Indian Bank v. Satyam Fibres (India) (P) Ltd.4 referring to Lazarus Estates2 and Smith v. East Elloe Rural Distt. Council5 this Court stated: (SCC pp. 562-63, para 22)<br>“22. The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the court’s business.”<br>32. In United India Insurance Co. Ltd. v. Rajendra Singh6 by practising fraud upon the Insurance Company, the claimant obtained an award of compensation from the Motor Accident Claims Tribunal. On coming to know of fraud, the Insurance Company applied for recalling of the award. The Tribunal, however, dismissed the petition on the ground that it had no power to review its own award. The High Court confirmed the order. The Company approached this Court.<br>33. Allowing the appeal and setting aside the orders, this Court stated: (SCC pp. 587-88, paras 15-17)<br>“15. It is unrealistic to expect the appellant Company to resist a claim at the first instance on the basis of the fraud because the appellant Company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the Company to file a statutory appeal against the award. Not only because of the bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then.<br>16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.<br>17. The allegation made by the appellant Insurance Company, that the claimants were not involved in the accident which they described in the claim petitions, cannot be brushed aside without further probe into the matter, for the said allegation has not been specifically denied by the claimants when they were called upon to file objections to the applications for recalling of the awards. The claimants then confined their resistance to the plea that the application for recall is not legally maintainable. Therefore, we strongly feel that the claim must be allowed to be resisted, on the ground of fraud now alleged by the Insurance Company. If we fail to afford to the Insurance Company an opportunity to substantiate their contentions it might certainly lead to a serious miscarriage of justice.”</h4><p><br></p>', '89e26c98a63876c8eee85eb4e68d1c4c.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2007-03-07', 1, '', '', '2021-04-03 02:14:37', '2021-04-03 02:14:37');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(653, 'lwjUqukQiazmA9REcWAgmxqP5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Advocates Act, 1961. State Bar Council has power of interim suspension of an Advocate pending disposal of disciplinary proceedings for misconduct. Madras High Court. 21 November 2013', '<h4>R.D.Vijay Anand vs The Secretary, The Bar Council of Tamil Nadu and Puducherry. </h4><h4>Writ Petition 29258 of 2013 decided on 21 November 2013. Justice K.K. Sasidharan</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Full Judgement</span>: <b style=\"background-color: rgb(255, 255, 0);\">1. Whether the State Bar Council is vested with the power to suspend an Advocate on its rolls from practising the profession of law pending disposal of suo-motu disciplinary proceedings taken by the Bar Council of Tamil Nadu is the core issue that arises for consideration in this writ petition at the instance of a lawyer from Coimbatore, who was suspended, as an interim measure for passing an illegal arbitration award without authority.</b><br>Brief facts:<br>2. The petitioner was enrolled as an Advocate on the Rolls of the Bar Council of Tamil Nadu on 20 December 2002 (Enrollment No. 2115 of 2002). The petitioner is a member of Coimbatore Bar. The petitioner is stated to be a busy legal practitioner in Civil, Criminal and other branches of law.<br>3. While so, the petitioner received a notice dated 15 October 2013 from the Bar Council of Tamil Nadu to show cause as to why proceedings under Section 35 of the Advocates Act 1961 should not be taken against him for professional misconduct. The show cause notice was followed by an interim order of suspension dated 17 October 2013 pending disposal of the disciplinary proceedings.<br>4. According to the petitioner, the Bar Council of Tamil Nadu (hereinafter referred to as ‘Bar Council’) in its resolution and notices indicated that he illegally acted as an arbitrator and passed an award dated 16 October 2008. It was the contention of the petitioner that the award was passed only by Mr. R. Vijay Anand, Advocate and as such, Bar Council was not correct in taking action against him.<br>5. The Bar Council in its counter affidavit contended that several complaints were received from Coimbatore with regard to the functioning of certain Advocates as Arbitral Tribunals, calling people to appear without any authority, passing awards, and executing such awards by various means. The Bar Council took suo motu proceedings against five advocates including the petitioner. Since the Bar Council is of the view that public interest would suffer in case those Advocates are allowed to practice pending disposal of disciplinary proceedings, they were suspended. Accordingly Bar Council justified the impugned order.<br>Submissions:<br>6. The learned counsel for the petitioner contended that the compliant preferred by the Coimbatore Bar Association and the award dated 16 October 2008 contain the name of Sri. R. Vijay Anand, Advocate. The petitioner is R.D. Vijay Anand and he is a very busy legal practitioner and a very successful defence lawyer. The petitioner used to send atleast five sessions cases every week to his counter part at Madras High Court. Such a famous lawyer would not indulge in holding illegal arbitration proceedings. The learned counsel further contended that the Bar Council has no right to suspend a lawyer from practice pending initiation of disciplinary proceedings.<br>7. The learned Standing Counsel for Bar Council by producing the file, the award and acknowledgement card which contain the signature of the petitioner submitted that the signature in the acknowledgement card and the signature in the award are one and the same. The Enrollment papers also contain the very same signature. Therefore it is clear that R. Vijay Anand is none other then the petitioner. According to the learned counsel, the Bar Council possess the inherent power to suspend the Advocates pending disposal of disciplinary proceedings.<br>Analysis:<br>8. The petitioner challenges the interim order of suspension primarily on the ground that the Bar Council has no power under the Advocates Act to suspend a legal practitioner pending disposal of proceedings for misconduct. The other contention relates to the identity of the person involved in the misconduct.<br>9. The Coimbatore Bar Association preferred a complaint dated 27 August 2013 to the Bar Council stating that Thiru P.R. Shanmgam and eight others including the petitioner are conducting illegal arbitral proceedings. The Bar Council on a careful consideration of the complaint resolved to initiate disciplinary proceedings against the concerned advocates. Since the Bar Council wanted these advocates not to do the very same illegal activities pending disposal of proceedings for misconduct, passed an interim order of suspension.<br>10. The petitioner is one among such Advocates. According to the Bar Council, in the interest of public and in order to maintain dignity, decorum and to uphold the professional etiquette of the legal profession, the Council took this decision invoking the power under Section 6(1)(d) of the Advocates Act, 1961.<br>Identity of the author of award:<br>11. According to the petitioner, he is R.D. Vijay Anand and he has nothing to do with the illegal award passed by R. Vijay Anand. The contention would be attractive at first blush. However, its fallacy would be proved by a mere comparison of the signature of the arbitrator as found in the award and the admitted signature of the petitioner in the acknowledgement card evidencing service of suspension order and his application for enrolment.<br>12. We are now concerned only with the prima facie case. In case the available materials prima facie indicates the role of the petitioner as the author of the illegal award, the same would be sufficient to initiate disciplinary proceedings. It is open to the Advocate to produce materials to prove his defense that it was the work of another Advocate and he was not responsible for such illegal Act. Merely because the award contain the name of R. Vijay Anand and the complaint of Bar Association, Coimbatore also refers to the name of R. Vijay Anand, it cannot be said it was made only by another lawyer. The Coimbatore Bar Association referred to the names of advocates on the basis of the names contained in the respective awards.<br>13. The leader of the parallel court is stated to be one Thiru Shanmugam. He adopted a modus operandi of conducing parallel courts and arbitral proceedings by adopting the name “P.R. Shanmugam” not withstanding the fact that the name recorded in his enrolment certificate was R. Shanmugam. In the subject case, the Bar Council has taken up a contention that though the name of the petitioner is R.D. Vijay Anand, in order to appear as if the author of the award is a different person, he has put it in the name of R. Vijay Anand. This contention appears to be prima facie correct on account of the documents produced by the Bar Council.<br>14. The petitioner was suspended on 17 October 2013. The very fact that the Coimbatore Bar supported this move and the further fact that not even a single lawyer from Coimbatore has so far expressed protest on the ground of action being taken against an innocent lawyer also supports the prima facie finding recorded by the Bar Council.<br>15. The available materials are sufficient to arrive at a prima facie finding that it was only the petitioner, who was instrumental in making the illegal award without any authority. Therefore, I reject the contention with regard to identity.<br>Power of the Bar Council to order interim suspension:<br>16. The substantial question raised in the writ petition relates to the authority of the Bar Council to order interim suspension pending disposal of disciplinary proceedings.<br><br>17. The Bar Council of India and State Bar Councils are statutory bodies entrusted with the task of safeguarding the rights, privileges and interest of the Advocates. These Apex bodies are equally concerned with the professional conduct of the legal practitioners. The legal profession???d as a noble profession, ordains a very high level of ethics, moral standard and ??? life. The legal profession plays a ??? the administration of justice. The Lawyers act as a catalyst. The lawyer owes ??? to the Court, to his client and even ??? his opponent while discharging his role. The Advocate acts both as an officer of court as well as an ambassador of his client.<br>The Statute:<br>18. The Advocates Act contains detailed provisions dealing with the functions, powers and duties of the Bar Council of India and the State Bar Councils. The State Bar Council constituted under Section 3 of the Advocates Act is a body corporate.<br>19. Section 6 of the Act indicates the functions of Bar Councils. It reads as under: Functions of the State Bar Councils:—<br>(1) The functions of the State Bar Councils shall be-<br>(a) to admit persons as advocates on its roll;<br>(b) to prepare and maintain such roll;<br>(c) to entertain and determine cases of misconduct against advocates on its roll;<br>(d) to safeguard the rights, privileges and interests of advocates on its roll;<br>{(dd) to promote the growth of Bar Associations for the purposes of effective implementation of the welfare schemes referred to in clause (a) of sub-section (2) of this section and clause (a) of sub-section (2) of section 7;)<br>(e) to promote and support law reforms;<br>(f) {(ee) to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and paper of legal interest; (eee) to organise legal aid to the poor in the prescribed manner;)<br>(f) to manage and invest the funds of the Bar Council;<br>(g) to provide for the election of its members;<br>{(gg) to visit and inspect Universities in accordance with the directions given under clause (i) of sub-section (1) of Section 7;)<br>(h) to perform all other functions conferred on it by or under this Act;<br>(i) to do all other things necessary for discharging the aforesaid functions.”<br>20. Section 9 provides for constitution of disciplinary committee.<br>21. Chapter V deals with conduct of Advocates. Section 35 provides for the reference of complaints against Advocates to the disciplinary committee.<br>22. The disciplinary committee of the Bar Council initiates proceedings for misconduct upon a reference by the State Bar Council. The Bar Council on receipt of a complaint must examine the complaint to decide as to whether a prima facie case of misconduct has been made out to refer the matter to the disciplinary committee. It is only for this purpose the Bar Council issues notice to the concerned Advocate on receipt of a complaint alleging professional misconduct. The Bar Council on receipt of the reply from the Advocate is expected to function as the Screening Authority and only those cases certified by the Council to be of worth reference alone will be forwarded to the Disciplinary committee.<br>23. The question therefore is, while taking a decision to refer a complaint to the disciplinary committee for initiating disciplinary proceedings, whether it is open to the Bar Council to pass an interim order of suspension.<br>24. Section 2(1)(a) defines “Advocate” as an Advocate entered in any roll under the provisions of Advocates Act.<br>25. The registration before the Bar Council is a mandatory requirement for practising the profession of law. The incidental question is whether the authority empowered to register an Advocate and permit him to practice, got the right to suspend him from practice, pending disciplinary proceedings.<br>26. Section 6(1)(c) enjoins the State Bar Councils to entertain and determine cases of misconduct against Advocates. Similarly Section 6(1)(i) of the Act enables the Bar Councils to do all other things necessary for discharging the aforesaid functions. Since the Bar Council is the authority to register the Advocates and to maintain their rolls, Section 6 has to be read as the power of the State Bar Council, rather than functions. When it is clear that the Bar Council can entertain complaints and determine cases of misconduct against Advocates on its roll and the incidental right to do all other things necessary for discharging the functions, it is essentially a power and not a function alone. Power to appoint - includes power to suspend/dismiss:<br>27. Section 16 of the General clauses Act provides that the power to appoint would include the power to suspend or dismiss. The issue whether Section 16 as such would apply to a Bar Council or the Advocates registering their names on the rolls of the council are larger questions, but the General Doctrine underlying this provision can very well be made applicable to a case of this nature. The power to pass an interim order of suspension pending disposal of disciplinary proceedings therefore is a necessary adjunct of the power of registration of an Advocate on the rolls of the Bar Council, which is a pre-requirement for practising law.<br>28. The complaint received by the Bar Council after initiation, scrutiny and examination, if found to be of substance would be referred to the disciplinary committee. The maximum time for disposal of complaint by the disciplinary committee is indicated as one year. Then there is a provision for appeal to the Bar Council of India under Section 37 of the Act. The order passed by the Bar Council of India is appealable before the Supreme Court under Section 38 of the Act. The power to stay the order passed by the Disciplinary committee is given initially to the Disciplinary Committee and thereafter to the appellate authority. This is often a time consuming process. Even though the Bar Council has found a prima facie case of professional misconduct for the purpose of reference to the Disciplinary Committee, the punishment would come only after the disposal of the appellate proceedings under Section 37 or 38 of the Act.<br>29. The difficulty would arise in case the Bar Council is of the view that it would not be in public interest to permit the Advocate to practice during the currency of statutory proceedings before the Disciplinary Committee, as otherwise it would adversely affect the dignity, decorum and professional ethics. It is not possible to entertain an argument that the State Bar Council has no power to order interim suspension in such grave cases and should await the ultimate finding given by the disciplinary committee. The parliament while giving disciplinary powers to the Bar Council and Bar Council of India appears to have not contemplated such a helpless situation.<br>30. The provisions of a statute must be given meaningful interpretation. It is true that courts cannot add something to the statute which was not contemplated by the legislature. However, the approach should be to give a workable interpretation to translate the wishes of the legislature into action.<br>31. There is no dispute that a law student after graduation is entitled to practice the profession of law on the strength of his enrollment and registration on the rolls of the Bar Council of the State. The only authority empowered under the Advocates Act, 1961 to grant the licence to practice the profession of law is the State Bar Council. The power to revoke the licence permanently or to suspend it for a prescribed period vests in the statutory body. This power would also include, in appropriate cases, to suspend the practice pending disposal of a complaint referred to the disciplinary authority of the concerned Bar Council.<br>Decisions of Supreme Court in relation to legal profession:<br>32. The role of Bar Council to preserve the purity and dignity of legal profession was indicated by the Supreme Court in Bar Council of Maharashtra v. M.V. Dabholkar, (1975) 2 SCC 702. The Supreme Court observed that the role of Bar Council under the Advocates Act is comparable to the role of a guardian in professional ethics.<br>“30. The interest of the Bar Council is to uphold standards of professional conduct and etiquette in the profession, which is founded upon integrity and mutual trust. The Bar Council acts as the custodian of the high traditions of the noble profession. The grievance of the Bar Council is to be looked at purely from the point of view of standards of professional conduct and etiquette. If any decision of the Disciplinary Committee of the Bar Council of India is according to the State Bar Council such as will lower the standards and imperil the high traditions and values in the profession, the State Bar Council is an aggrieved person to safeguard the interests of the public, the interests of the profession and the interests of the Bar.”<br>33. The Supreme Court in Bar Assn. v. Union of India, (1998) 4 SCC 409, indicated the exclusive jurisdiction of Bar Council to suspend the licence to practice.<br>“71. Thus, after the coming into force of the Advocates Act, 1961 with effect from 19-5-1961, matters connected with the enrolment of advocates as also their punishment for professional misconduct is governed by the provisions of that Act only. Since, the jurisdiction to grant licence to a law graduate to practise as an advocate vests exclusively in the Bar Council of the State concerned, the jurisdiction to suspend his licence for a specified term or to revoke it also vests in the same body.”<br>34. Mr Justice V.R. Krishna Iyer in His Lordship\'s concurring judgement in M.V. Dabholkar observed:<br>“52. The Bar is not a private guild, like that of ‘barbers, butchers and candlestick-makers\' but, by bold contrast, a public institution committed to public justice and pro bono publico service. The grant of a monopoly licence to practice law is based on three assumptions: (1) There is a socially useful function for the lawyer to perform, (2) The lawyer is a professional person who will perform that function, and (3) His performance as a professional person is regulated by himself not more formally, by the profession as a whole. The central function that the legal profession must perform is nothing less than the administration of justice.”<br>35. In M.V. Dabholkar, while interpreting the word “person aggrieved” the Supreme Court observed.<br>“31. The Bar Council is ‘a person aggrieved’ for these reasons. First, the words ‘person aggrieved’ in the Act are of wide import in the context of the purpose and provisions of the statute. In disciplinary proceedings before the Disciplinary Committee there is no Us and there are no parties. Therefore, the word ‘person’ will embrace the Bar Council which represents the Bar of the State. Second, the Bar Council is ‘a person aggrieved’ because it represents the collective conscience of the standards of professional conduct and etiquette. The Bar Council acts as the protector of the purity and dignity of the profession. Third, the function of the Bar Council in entertaining complaints against advocates is when the Bar Council has reasonable belief that there is a prima facie case of misconduct that a Disciplinary Committee is entrusted with such inquiry. Once an inquiry starts, the Bar Council has no control over its decision. The Bar Council may entrust it to another Disciplinary Committee or the Bar Council may make a report to the Bar Council of India. This indicates that the Bar Council is all the time interested in the proceedings for the vindication of discipline, dignity and decorum of the profession. Fourth, a decision of a Disciplinary Committee can only be corrected by appeals as provided under the Act. When the Bar Council initiates proceedings by referring cases of misconduct to Disciplinary Committee, the Bar Council in the performance of its functions under the Act is interested in the ‘task of seeing that the advocates’ maintain the proper standards and etiquette of the profession. Fifth, the Bar Council is vitally’ concerned with the decision in the context of the functions of the Bar Council. The Bar Council will have a grievance if the decision prejudices the maintenance of standards of professional conduct and ethics.”<br>36. In Bar Council of Maharashtra v. M.V. Dabholkar, (1976) 2 SCC 291 Mr. Justice V.R. Krishna Iyer, speaking for the four judges Bench observed:<br>“15. Now to the legal issue bearing on canons of professional conduct. The rule of law cannot be built on the ruins of democracy, for where law ends tyranny begins. If such be the keynote thought for the very survival of our Republic, the integral bond between the lawyer and the public is unbreakable. And the vital role of the lawyer depends upon his probity and professional lifestyle. Be it remembered that the central function of the legal profession is to promote the administration of justice. If the practice of law is thus a public utility of great implications and a monopoly is statutorily granted by the nation, it obligates the lawyer to observe scrupulously those norms which make him worthy of the confidence of the community in him as a vehicle of justice - social justice. The Bar cannot behave with doubtful scruples or strive to thrive on litigation. Canons of conduct cannot be crystallised into rigid rules but felt by the collective conscience of the practitioners as right.”<br>37. The Supreme Court in R.K. Anand v. Delhi High Court, (2009) 8 SCC 106, while expressing the hope that Bar Council will sit up and pay proper attention to the restoration of the high professional standards among lawyers worthy of their position in the judicial system and in the society observed:<br>“333. We express our concern on the falling professional norms among the lawyers with considerable pain because we strongly feel that unless the trend is immediately arrested and reversed, it will have very deleterious consequences for the administration of justice in the country. No judicial system in a democratic society can work satisfactorily unless it is supported by a Bar that enjoys the unqualified trust and confidence of the people, that shares the aspirations, hopes and the ideals of the people and whose members are monetarily accessible and affordable to the people.” 38. The Supreme Court in R.K. Anand recognised the power of courts to prohibit an Advocate convicted of criminal contempt, from appearing in Court for a specified period. The Supreme Court held:<br>“238 We may respectfully add that in a given case a direction disallowing an advocate who is convicted of criminal contempt from appearing in court may not only be a measure to maintain the dignity and orderly functioning of the courts but may become necessary for the self-protection of the court and for preservation of the purity of court proceedings. Let us, for example, take the case where an advocate is shown to have accepted money in the name of a judge or on the pretext of influencing him; or where an advocate is found tampering with the court\'s record; or where an advocate is found actively taking part in faking court orders (fake bail orders are not unknown in several High Courts!); or where an advocate has made it into a practice to browbeat and abuse judges and on that basis has earned the reputation to get a case transferred from an ‘inconvenient’ court; or where an advocate is found to be in the habit of sending unfounded and unsubstantiated allegation petitions against judicial officers and judges to the superior courts. Unfortunately these examples are not from imagination. These things are happening more frequently than we care to acknowledge.<br>239. We may also add that these illustrations are not exhaustive but there may be other ways in which a malefactor\'s conduct and actions may pose a real and imminent threat to the purity of court proceedings, cardinal to any court\'s functioning, apart from constituting a substantive offence and contempt of court and professional misconduct. In such a situation the court does not only have the right but it also has the obligation cast upon it to protect itself and save the purity of its proceedings from being polluted in any way and to that end bar the malefactor from appearing before the courts for an appropriate period of time.”<br>Note of caution - Interim suspension should be in rarest of rare cases.<br>39. The power to suspend the Advocate pending initiation and disposal of disciplinary proceedings must be in larger public interest. There should be an overwhelming public interest in such cases. The Bar Council must arrive at a clear finding that permitting the Advocate who is accused of a grave misconduct, pending disciplinary proceedings would seriously affect the dignity and decorum of the profession. The order should contain adequate materials justified such suspension. The interim suspension must be an exceptional action on account of the exigency of situation and gravity of the misconduct. There should be primary materials warranting such extreme action. It should not be as a matter of course. The interim suspension should therefore be in rarest of rare cases. The Bar Council in such cases must ensure disposal of disciplinary proceedings within the statutory period. The prolonged suspension without showing any progress in the disciplinary proceedings would give a cause of action to the Advocate to challenge the action.<br>40. The next question is whether the allegations against the petitioner would be sufficient to suspend him temporarily pending disposal of the disciplinary proceedings.<br>41. The proceedings of the meeting of the Bar Council of Tamil Nadu and Puducherry held on 5 October 2013 contain the basic materials constituting the grave charges and the circumstances under which the Bar Council has taken a decision to restrain five Advocates including the petitioner from practising the profession of law till the disposal of suo motu disciplinary proceedings initiated against them.<br>42. The string of materials available on record would make the position very clear that the petitioner along with other Advocates indulged in illegal and unethical practices and their actions tarnished the image of this noble profession. Those materials are sufficient to pass an order of interim suspension pending disposal of disciplinary proceedings for misconduct. The disciplinary committee must take earnest efforts to dispose of the suo motu disciplinary proceedings, as expeditiously as possible, uninfluenced by the above observation based on tentative findings and prima facie case.<br>Conclusion:<br><b style=\"background-color: rgb(255, 255, 0);\">43. Therefore I hold that the power of Bar Council to revoke the licence to practice permanently or suspend it for a fixed term would include the incidental power of interim suspension pending disposal of disciplinary proceedings for misconduct.</b><br>44. In the upshot, I dismiss the writ petition. Consequently, the connected MP is closed. No costs.</h4><p><br></p>', '55153f4b9549c4f8e57189cc5ce9c341.jpg', '0b8a31d6eb111094d8bf9a8e914f5bbe.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2013-11-21', 1, '', '', '2021-04-04 15:39:41', '2021-04-04 15:42:47'),
(2658, 'uSJyQml6I4W5F6UWykQi0AaNn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Advocate making defamatory statement in pleadings without obtaining signature of his clients cannot plead exception to Section 499 IPC. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Santhosh Kumar M Vs A. Keshava Bhat and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 4359 of 2022 decided on 31 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Natarajan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Crl.P.No.4359/2022 is filed by the\r\npetitioner/accused No.3 and Crl.P.No.4451/2022 is filed by\r\nthe petitioners/accused Nos.1 and 2 under section 482 of\r\nCr.P.C for quashing the criminal proceedings against them\r\nin CC.No.30741/2021 pending on the file of VIII ACMM,\r\nBengaluru, for the offence punishable under Sections 499\r\nof IPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The case of the petitioners is that the\r\nrespondent/complainant who is an advocate filed a\r\ncomplaint under section 200 of Cr.P.C before the\r\nMagistrate for the offence punishable under Section 499 of\r\nIPC and the learned Magistrate previously dismissed the\r\ncomplaint on 2.2.2019. Thereafter, the complainant\r\napproached the Sessions Court under section 397 of Cr.P.C\r\nby filing revision petition and the revisional Court had set\r\naside the order of dismissal of the complaint and\r\nremanded the matter back to the Magistrate to take <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cognizance against the petitioners. Subsequently, the\r\nlearned Magistrate have taken the cognizance and issued\r\nthe process, under section 204 of Cr.P.C which is under\r\nchallenge before this court.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">8. Heard the arguments of both parties and perused\r\nthe records. The allegation against accused Nos.1 to 3 is\r\nthat the complainant who is a practicing advocate filed a\r\npublic interest litigation before the High Court of\r\nKarnataka, to stop the stone quarry/mining of the accused\r\nNos.1 and 2. It is an admitted fact that the High Court of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Karnataka disposed of the matter by directing the\r\npetitioners to approach Upalokayuktha. Accordingly a\r\ncomplaint has been filed before Upalokayuktha and in that\r\nproceedings the accused No.3 who is an advocate\r\nappeared before the Upalokayuktha on behalf of the\r\naccused Nos.1 and 2. It is an admitted fact that the\r\naccused Nos.1 and 2 filed statement of objection through\r\naccused No.3, it is also an admitted fact that the accused\r\nNo.3 filed statement of objection without obtaining\r\nsignatures of the accused Nos.1 and 2. It is alleged by the\r\naccused No.3 in the statement of objection in\r\nUplok/Mys/1720/2017 that a proceeding before\r\nUpalokayuktha in the statement of objection at Para 6 he\r\nhas stated, where the complainant filed a writ petition\r\nbefore the High Court in WP No.39001/2015 and the\r\ncomplainant in the habit of filing the writ petitions against\r\nthe accused Nos.1 and 2 by using the tactics to threaten\r\nthe accused Nos.1 and 2 and used to get the money and\r\nthereafter withdraw the writ petitions. He has further\r\ncontended, the complainant filed one more writ petition in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">W.P.No.3221/2016 before the High Court with an intention\r\nto extort money from the accused Nos.1 and 2 and when\r\nthe accused Nos.1 and 2 did not agree to pay any money\r\ntherefore, through writ petition he has filed complaint\r\nbefore the Lokayuktha. Subsequently, the complainant\r\nalso made a demand from the accused Nos.1 and 2 and\r\nnot able to get money, hence he has filed the complaint\r\nbefore the Lokayuktha. On perusal of these statements, it\r\ncategorically reveals it is a defamatory statement against\r\nthe complainant by the accused Nos.1 to 3. Therefore,\r\nnow it cannot be bifurcated whether the accused No.3\r\nhimself written those defamatory statement against the\r\ncomplainant or he has prepared objections only on\r\ninstruction of accused Nos.1 and 2, since the statement of\r\nobjections were not signed by the accused Nos.1 and 2.\r\nThe accused No.3 alone filed these statement of objections\r\nby signing himself on behalf of accused Nos.1 and 2.\r\nTherefore, accused Nos.1 and 2 in one side and accused\r\nNo.3 in another side cannot blame each other for making\r\nsuch a defamatory statement against complainant stating </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that the complainant is in the habit of extorting money\r\nfrom the accused Nos.1 and 2 by filing the writ petitions\r\nand demanding money for withdrawing the PIL, thereafter\r\nhe has filed another PIL and made a demand of money\r\nwhen the same was failed, he has used the tactics to file\r\ncomplaint before the Lokayuktha etc., It cannot be said\r\nthere is no intention or Men\'s Rea to tarnish the image of\r\ncomplainant by the accused persons.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. It is also seen from the order of the Sessions\r\nJudge, as the Sessions Judge categorically gone through\r\nthe records and clearly come to the conclusion that there\r\nis a prima facie case made against the accused persons for\r\nframing of charge. The averments made by the accused or\r\ndefamatory statement made by the accused will not fall\r\nunder the exception of the section 499 of IPC as the\r\nstatement made by the accused No.3 cannot be said to be\r\nin a good faith while conducting the trial or proceedings.\r\nThe accused No.3 is a practicing advocate and he himself\r\ndrafted the objection on behalf of the accused Nos.1 and 2 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and he himself is aware about the consequences about the\r\nstatement of objections filed before the public authority in\r\na court of law. Therefore, without going to the trial, this\r\nCourt cannot jump into the conclusion, there is no\r\ndefamatory statement made by the accused persons or\r\nthere is no criminal intention or Mens Rea to defame the\r\ncomplainant, therefore, matter is required for trial. I have\r\ngone through the judgments produced by the petitioners\r\nwhich will not be applicable to the case on hand.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n In view of the above findings the judgment relied by\r\nthe respondent is not required to be considered in detail at\r\nthis stage.\r\n Therefore, both the petitions are devoid of merits\r\nand is liable to dismissed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> A</span><span style=\"font-size: 1rem; font-family: var(--bs-font-sans-serif);\">ccordingly, both petitions filed by accused Nos.1 to\r\n3 are hereby dismissed.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c072e0e82c7eab821e8c884fb2c3c46c.JPG', '6341d856b997fd7927363bd26bfa8355.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-13', 1, '', '', '2023-02-10 14:49:59', '2023-02-13 03:14:25'),
(655, '26EhqxuXfwUtQkvfc6sASu3Rs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prevention of Money Laundering Act 2002.  Investigating-arresting Officer must inform and provide copy of arrest order and grounds of arrest to the person being arrested. Mere oral information would not be sufficient. Karnataka High Court.', '<h4>Bineesh Kodiyeri vs Directorate Enforcement. </h4><h4>Writ Petition 13261 of 2020 decided on 16 March 2021.&nbsp;</h4><h4>Justice Suraj Govindaraj.</h4><h4><span style=\"background-color: rgb(255, 255, 0);\"><b>7. <span style=\"font-size: 1.3125rem;\">Whether in terms of Section 19 of PMLA, the Investigating Officer or the Arresting Officer is required to inform the grounds of arrest to the person being arrested, if so, is it oral information or does it have to be in writing?</span></b></span></h4><h4>The term \'Arrest\' has not been defined under the Cr.P.C. or under the IPC, nor for that matter has it been defined under the PMLA. Arrest, as generally understood, is to restrain to stay, and in relation to a person connected to an offence or suspected to be connected to offence, an arrest would mean to detain and restrain a person.<br>Section 41 to 44 and 46 of Cr.P.C. deal with the arrest of a person, Section 41 empowering the police officer to arrest any person without a warrant, Section 42 empowering a Police officer to arrest a person who commits an offence in his presence, Section 43 enabling a private person to arrest any person who commits an offence in his presence and or a proclaimed offender, Section 44 deals with arrest by a Magistrate and Section 46 lays down the manner in which the arrest has to be made.<br></h4><h4>Under the Cr.P.C., a person can&nbsp; be&nbsp; arrested&nbsp; if the arresting officer or the arresting person has reason to believe that a person is guilty of an offence. As aforestated, the power of arrest would mean to detain or restrain a person hereby affecting his personal liberty guaranteed under Article 19 and 21 of the Constitution. Therefore, it is very much required&nbsp; that suitable and adequate safeguards for the exercise of this power are provided so that there is no abuse of such wide and far-reaching power. The power of arrest under Cr.P.C. is a general power, whereas the power to arrest under a special enactment is a special power<br>conferred by the Special enactment, to be resorted to, used, as also circumscribed by the said special statute itself.<br>In the present case, the power to arrest is circumscribed by the PMLA itself. This power has to be exercised in the manner as provided under PMLA or not at all. Apart from the exercise of power to arrest in a particular manner, PMLA also provides or mandates that the arresting officer inform the arrestee of the grounds of his arrest at the earliest without any unnecessary delay so as to safeguard the individual freedom of that person who can on that basis apply for and seek for bail<br></h4><h4>The question is as to whether the&nbsp; arresting officer is required to only inform the grounds of arrest or provide the same in writing to the person arrested for an offence under the PMLA. The PMLA has various provisions relating to the offence of money laundering as regards which stringent punishments are prescribed. Furthermore, in terms of Section 45 of the&nbsp; PMLA for the person arrested to seek bail, it is required that such a person establishes before the said Court that the accused is not guilty of the offence alleged against him.<br></h4><h4>The expression ‘inform him of grounds of such arrest”- under Section 19(1) of the PMLA would have to be read in conjunction with Section 45 of the PMLA and cannot be read in isolation.<br></h4><h4>There could be a loss in communication if the said information is provided orally, inasmuch as the accused being a legally illiterate person or a layman, if the accused were not able to understand the grounds of arrest if orally informed, he would not be in a position to&nbsp; convey or communicate the same to his&nbsp; near and dear ones or his lawyers so as to satisfy the requirement of Section 45 of the PMLA. More so when the requirement for granting bail is placed at such a high standard.<br></h4><h4>To enable the accused to make out a case for bail, it is required that there is no loss in communication, and the exact reasons or grounds of arrest are required to be conveyed to the accused. This, in my considered opinion, can only be done in writing, in a language known to the accused as also in English.<br></h4><h4>In terms of Section 45 of PMLA, such a person can seek bail and obtain bail only if such a&nbsp; person were to establish that he is not guilty of the offence alleged against him. The defence of the accused and/or claim that the accused is not guilty in order to be granted bail by a Court can only be adjudicated by the Court on a touchstone of the contents of the arrest order and reasons for arrest or grounds for arrest.<br></h4><h4>This works in two manners.&nbsp; Firstly&nbsp; that it&nbsp; is&nbsp; only if the grounds for arrest are available with the accused, the accused can endeavour to contradict the said grounds so as to, at this stage, prima facie establish he/she is not guilty&nbsp; of such an offence. Secondly, the court can take into consideration the reasons for arrest&nbsp; as stated in the grounds for arrest where the standard is reason to believe that the arrestee is guilty of the offence and juxtaposing the same to the requirement provided under Section 45&nbsp; of the PMLA for grant bail, i.e. for the accused/arrestee to establish that the said arrestee is not guilty of the said offence. This, in my considered opinion, cannot be done without both the reasons for arrest, i.e. grounds for arrest, as also grounds for the grant of bail being placed before the said Judge, which would essentially mean that the same is to be in&nbsp; writing and be capable of being produced by the accused before such Court.<br></h4><h4>There is considerable force in the submission made by Sri. Aravind Kamath learned Senior counsel that one of the safeguards put in place&nbsp; by the legislature to prevent abuse of the powers vested with the Authority under the PMLA is providing grounds of arrest to the arrestee.&nbsp; These grounds of arrest would not only have to be provided to the arrestee but also would form part of the case diary or the investigation file. Thus unless there are grounds sufficient to arrest a person which is recorded in writing, no person could be arrested under the PMLA. This by itself would be a safeguard so as to prevent any arbitrary exercise of power and/or an indiscriminate arrest being carried out by the authorities under the PMLA.<br></h4><h4>In that view of the matter, unless the accused is aware of the exact grounds of arrest and/or&nbsp; as to what the said accused is required to answer&nbsp; to, so as to establish that he is not guilty of the offence, he would not be able to meet the requirement of Section 45 of the PMLA. I am of the considered opinion that it would, but, be required for the Arresting Officer to provide the grounds of arrest to any person being arrested under PMLA in writing, mere oral information would not be sufficient. In that&nbsp; regard, necessary acknowledgement from the arrestee would have to be obtained in writing confirming the receipt of the same in writing.<br></h4><h4>As observed above, since it is required that the arresting officer inform and provide the arrestee with the arrest order and grounds of arrest in writing, it would be required that the investigating officer establish the positive fact of having provided the same in writing, since the negative cannot be established by the arrestee. Hence, in such cases, apart from obtaining the acknowledgement of the arrestee on the said arrest order and grounds of arrest, it may also&nbsp; be advisable for the arresting officer to email the said arrest order and grounds of arrest to the arrestee’s email account, to the e-Mail account&nbsp; of the lawyer and or the near and dear ones of the arrestee, if the lawyer or the near and dear ones are provided with a physical copy of the arrest order or grounds of arrest to obtain their acknowledgement of having received the same. The court before whom the arrestee has been produced to mandatorily enquire about the providing of the physical copy of the arrest order and grounds for the arrest in writing and record the response of the arrestee in the order sheet under the signature of the arrestee and the like. </h4><h4><b style=\"background-color: rgb(255, 255, 0);\">Thus I answer Point No.1 by holding that in terms of Section 19 of PMLA, the Investigating Officer or the arresting officer is required to inform and provide a physical copy of the arrest order and grounds of arrest to the person being arrested. Mere oral information would not be sufficient.<br></b>&nbsp;<br></h4>', '9714dcd17e4078325c2ebc0357db7600.jpeg', 'b26a072b9d63828d428d728adb087bd9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-20', 1, '', '', '2021-04-05 03:42:41', '2023-01-20 17:00:23');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(656, 'TbxBEyZ7gThb00TioZjbokctX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'PML Act. Objective satisfaction of the Investigating-arresting officer about guilt of an offence under the Act is mandatory. The same is required to be reduced in writing prior to arrest, to be furnished to arrestee at the time of arrest. Kar HC. 16:3:21', '<h4>Bineesh Kodiyeri vs Directorate Enforcement.</h4><h4>Writ Petition 13261 of 2020 decided on 16 March 2021. </h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: </h4><h4>ii) Whether the expression “reason to believe that any person has  been guilty of an offence” found under Section 19 of the PMLA Act require a preliminary adjudication by the Investigating Officer as regards the guilt of the accused before arresting him?<br></h4><h4>iii) Whether the objective satisfaction of the guilt of the accused is required to be reduced to writing on the grounds  of arrest formulated by the Investigating Officer?<br>10.7. In the background of the submissions made, there is a need to examine Section 19 of the PMLA which has been extracted hereinabove. The operative portion of the  provision is “has on the basis of the material in his possession reason to believe (a reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act…..”.<br>10.8.An examination of the above would  indicate that the arresting officer should have \"reason to believe\" that \"a person is guilty of an offence\". The \"reason to believe\" cannot be said to be an adjudication which is required to be performed by the Investigating Officer as regards the guilt of the person being arrested; the Investigating officer cannot be a Judge,  jury and executioner. The investigating officer  is only to investigate and place the material before the competent court for adjudication.<br>10.9. If the submission of Shri. Aravind Kamath, learned Senior counsel is accepted, the same would be akin to putting the cart before the horse, inasmuch as the Investigating Officer or the arresting officer cannot be empowered to, or required to adjudicate on the guilt of the accused, whether it be called as guilt standard or otherwise as termed by Shri Aravind  Kamath, learned Senior counsel.<br>10.10. The requirement under Section 19(1) as extracted above, is a \"reason to believe on the basis of the material in his  possession\". This reason to believe, in my considered opinion, would be the objective satisfaction of the Investigating Officer on the basis of the material available with him since the Investigating officer has conducted the investigation and has secured material.<br>10.11. If, on the basis of the material available with him, the Investigating Officer were to come to  a conclusion that there are reasons to believe that the person to be arrested is guilty of an offence punishable under the Act, then he can arrest such a person. The extrapolation of the requirement of guilt standard as contended by Shri Aravind Kamath learned Senior counsel would lead to an anomalous situation that cannot be countenanced on either law or on facts.<br>10.15. ....The arrest is made pending the completion of the investigation to prevent destruction or tampering with the evidence by the Petitioner, after having found that the Petitioner is prima facie guilty of the offence of money laundering and, as such, this contention of Sri. Aravind Kamath learned Senior counsel is rejected.<br>10.16. A perusal of Section 19(1), however, does  not in any manner refer to or indicate the purpose of arrest as sought to be contended by Sri. Aravind Kamath, learned Senior counsel, nor is the power of arrest limited to safeguarding the evidence or prevention of dealing with the proceeds of the crime.<br>10.17. The contention of Sri. Aravind Kamath, learned Senior counsel, that the Petitioner was arrested only to safeguard the proceeds of the crime cannot be countenanced on the facts. The arresting officer has come to a conclusion that on the basis of the documents and material available with him, the Petitioner is guilty of the offence of money laundering. It is only in furtherance of the same that the arrest is made and remand sought to safeguard the proceeds of the crime and/or to prevent the Petitioner from tampering with the evidence.  The last  two being in furtherance of the objective satisfaction of the arresting officer that the Petitioner is prima facie guilty of the offence of money laundering, it cannot be said that the only reason for the arrest is to safeguard the proceeds of the crime and/or prevent the tampering. The said contentions  being taken  up by the respondent-State in the application for remand; the same would not in any manner amount to being the basis of the arrest but for the continuance of the custody of the  Petitioner. Therefore, the contention of Sri. Aravind Kamath learned Senior counsel that  the arrest is only for the purpose of safeguarding the proceeds of the crime and/or for the respondent being prevented from tampering with evidence is rejected.<br>10.18. The only requirement under the Act is the \"reason to believe\" by the Investigating officer or the arresting officer that the person is \"guilty of the offence\". It is therefore not required for the Investigating officer to prove the  purpose of arrest or even to make any submission as regards the requirement of arrest to protect the proceeds of the crime. Though of course, the same is not part of Section 19(1) as contended by Shri Aravind Kamath, learned Senior counsel, the same would be examined by the Court while granting bail to consider whether the person arrested is required to be retained  in judicial custody for the reason that the said person may tamper with evidence and or with the proceeds of crime. Said factor would have  to be considered at the time of granting of bail and not at the time of the arrest. Arrest and remand to police custody and thereafter to judicial custody, which would also include custodial interrogation, which is an essential weapon in the armoury of the Investigating Officer enabling the Investigating officer to properly and effectively investigate a particular offence.<br>10.19. Sri.Surya Prakash V.Raju, learned Senior counsel and Additional Solicitor General of India submitted that there is enough and more material available on record to establish the guilt of the Petitioner and/or commission of the offences enumerated under the PMLA by the Petitioner. The Petitioner was  given  enough and more opportunities to explain the deposits made by the Petitioner of` huge amounts of cash, as also to answer the  statements made by Mohammad Anoop, who is stated to have more or less confessed to crimes under NDPS Act and PMLA, despite which the Petitioner did not give any satisfactory reply as regards the source of the huge cash deposits and therefore, there being enough material on record to indicate the involvement of the Petitioner in the offence and of his guilt in regard to the said offences, the arrest made of the Petitioner is proper and correct.<br>10.20. Sri. Surya Prakash V.Raju, learned Senior counsel and Additional Solicitor General of India has also contended that this belief of the arresting officer is based on the statements given by Sri. Mohammed Anoop, Sri.Sonet Lobo, Sri.Suhas Krishnegowda, analysis of the Bank accounts, an inspection of the declared premises of M/s Beecapital Forex Trading Pvt. Ltd, Bengaluru, and M/s Bcapital Financial Services Private Limited, enquiry with the Bank from whom the Petitioner is stated to have borrowed monies on the basis of security of his mother-in-law\'s property, an investigation into IndusInd Bank debit card, the signature of the Petitioner on the backside of the debit card and the use thereof by the Petitioner, which are reasons sufficient to establish the commission  of the offence, the involvement of the Petitioner and secondly the guilt of the Petitioner in respect of the said offences.<br>10.21. In the present case, the facts on record have been sufficient for the Investigating officer to arrive at a objective satisfaction that the petitioner is required to be arrested.<br>10.22. The facts have been stated in detail hereinabove. Suffice to say that one  Mohammed Anoop was arrested  with possession of the drugs in commercial quantity, thereby having committed an offence under the NDPS Act. On his arrest during the course of  his interrogation, Mohammed Anoop has stated that the petitioner is his boss; he would act as per the instructions of the petitioner. The petitioner has invested money in his  businesses, and he has transferred monies to the petitioner for use. The quantum of money has also been detailed, and the material on record available with the Investigating officer that the declared income of the petitioner compared to the amounts deposited in cash do not match with each other, the explanation given by the petitioner that he had borrowed money by mortgaging the property belonging  to his mother-in-law has been prima facie proved to be false since no such loan had been obtained by the petitioner. No proper explanation was given by the petitioner during the course of his interrogation; there are serious offences that have been alleged against the said Mohammed Anoop and the petitioner and several others for offences under the NDPS Act, huge amounts of money had changed hands. It is suspected that these have been realized on account of trafficking or dealing  with drugs which is a scheduled offence under the PMLA, therefore the money is suspected or believed to have been generated on account of such dealing with or trafficking in Narcotic or psychopathic substances, these monies would amount to proceeds of crime.<br>10.23. These being the basic facts, it is not required  for this Court to deal with or advert to all the facts in detail in a petition under Section 482 of Cr. P.C or a Writ Petition read with Section 482 of the Cr. P.C. From the statements which are available on record, more so when the petitioner has not denied his relationship with Mohammed Anoop, it cannot be said that the material in possession of the Investigating Officer and/or arresting officer was not  sufficient to come to a conclusion that the petitioner is guilty of offences punishable under the Act. Though, of course, the actual guilt or otherwise would have to be established during the course of trial and this prima facie objective satisfaction of the Investigating officer/arresting officer of the guilt of the petitioner cannot be a final determination.<br><b style=\"background-color: rgb(255, 255, 0);\">10.24. Thus I answer Point No.2 by holding that the phrase “reason to believe that any person has been guilty of an offence” would mean the objective satisfaction of the Investigating Officer or the arresting officer that the person who is to be arrested is guilty of an offence punishable under the Act. It does not mean that the said Investigating officer or the arresting officer has to adjudicate on the guilt, pass a detailed order or record the same in writing to indicate as to why he is of the opinion that the person to be arrested is guilty of the offence, the recordal of the objective satisfaction with reference to the material on record would be sufficient compliance.</b><br>10.25. The purpose of arrest is not material  at the time of the arrest inasmuch as it  is only the satisfaction on the part of the arresting officer of the prima facie guilt of the person to be arrested which is sufficient.<br>10.26. While considering the grant of bail, the concerned Court would consider the purpose of the continued detention of the accused in custody, and if the Court were to come to a conclusion that it is not required to detain the accused further in custody for further time, then the accused may be enlarged on bail.<br>10.27. In the facts of the case I’am of the considered opinion on the basis of the discussion made as regards the facts that the investigating officer has in writing indicated as to why he is of the opinion that the petitioner is believed to be guilty of committing the offence, the recordal of the objective satisfaction with reference to the material on record is sufficient compliance of the requirement, and there is no infirmity in the arrest made.<br><b style=\"background-color: rgb(255, 255, 0);\">11. POINT No.3- Whether the objective satisfaction of the guilt of the accused is required to be reduced to writing in the grounds of arrest formulated by the Investigating Officer?</b><br>11.1.<span style=\"white-space:pre\">	</span>As referred to and answered Point No.2 above, the objective satisfaction of the guilt of the accused can only be ascertained from the material on record, it cannot be expected of an Investigating Officer to in detail record the same in writing and form a part of grounds of arrest formulated by the Investigating Officer.  However, the grounds of arrest are required to  be sufficiently detailed out as to why a person is being arrested, in brief state as to what is the material available with the Investigating officer which would link the person to be arrested to an offence under the Act and why the person is believed to be guilty of the commission of such an offence. These factors, if contained in the grounds of arrest, would be sufficient, it would not be required for a detailed adjudicatory order to be made by the Investigating Officer as to the guilt of the accused.<br><b style=\"background-color: rgb(255, 255, 0);\">11.2. I answer point No.3 by holding that the objective satisfaction of the guilt of the accused is required to be reduced to writing in the grounds of arrest formulated by the Investigating Officer prior to the arrest and to be furnished in writing to the arrestee at the time of arrest or immediately  thereafter.</b><br></h4>', '3de0d19c0e2488753e257c7a0a183e70.jpg', '9a5ccab8ffd659f0d58a629f39d2e431.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-16', 1, '', '', '2021-04-05 21:23:36', '2021-04-05 21:34:47'),
(657, 'rrAD7qFjbkTVntUdrjl2klg36', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 482. Judgment of acquittal of co-accused in a criminal trial is NOT admissible under Sections 40 to 43 of the Evidence Act to bar subsequent trial of absconding co-accused. Proceedings can not be quashed on this ground. Kar HC. 24:3:2021', '<h4>Ummer Farooq vs The State of Karnataka. </h4><h4>Criminal Petition 6857 of 2020 decided on 24 March 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/376654/1/CRLP6857-20-24-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/376654/1/CRLP6857-20-24-03-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: This petition is filed under Section 482 of Cr.P.C, praying this Court to quash the entire proceedings against the petitioner in C.C.No.1153/2018 (Crime No.207/2015 of Vittla  Police Station, D.K. District) for the offences punishable under Sections 143, 147, 341, 354, 504 and 506 read with Section 149 of IPC pending on the file of Additional Civil Judge and JMFC., Bantwal, Dakshina Kannada.<br>19. Having heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent No.1/State, this Court has to examine whether this Court can exercise the powers under Section 482 of Cr.P.C. in view of the principles laid down in the judgments referred supra.<br>22. This Court would like to refer to the judgment of the Apex Court in the case of Yanob Sheikh alias  Gagu v.  State of West Bengal reported in (2013) 6 SCC 428, and extract paragraph Nos.23 and 26.</h4><h4>23. This Court would like to refer to the Full Bench judgment of the Kerala High Court in the case of Moosa v. Sub Inspector of Police reported in (2006) 2 CCR 445,....that the <b style=\"background-color: rgb(255, 255, 0);\">Judgment of acquittal of co-accused in a criminal trial is not admissible under Sections 40 to 43 of the Evidence Act to bar the subsequent trial of absconding co-accused and cannot be reckoned as a relevant document while considering the prayer to quash the proceedings under Section 482 of Cr.P.C. Such judgment would  be  admissible only to show who were the parties in the earlier proceedings and the factum of acquittal. </b>The Apex Court in its Judgment in the case of Rajan Rai v. State of Bihar reported   in (2006) 1 SCC (Cri) 209, held that the trial of co-accused tried separately is only an irrelevant in subsequent trial of accused, who are not tried earlier. The Judgment of acquittal of co-accused will not be admissible within the meaning of Section 40 to 44 of the Evidence Act. <br>24. This Court would like to refer to Sections 40 to 44.<br><b style=\"background-color: rgb(255, 255, 0);\">25. Having perused Sections 40 to 44, the acquittal of co-accused in a criminal trial is not admissible and Sections 40 to 43 of the Evidence<span style=\"white-space:pre\">	</span>Act not bar the subsequent trial of absconding co-accused.</b><br>26.<span style=\"white-space:pre\">	</span>This Court also would like to refer to the judgment of the Apex Court in the case of State Rep. by the CBI v. Anil Sharma reported in 1997 SCC (Cri) 1039.<br>27. Having perused the principles laid down in the judgments referred supra, it is clear that the judgment of acquittal of co-accused would not be admissible within the meaning of Sections 40 to 44 of the Evidence Act. It is also important to note that in the present case on hand, the complainant in the complaint, a specific allegation is made  against the petitioner herein not only in the complaint and also in his statement under Section 164 of Cr.P.C. However, this petitioner was absconded, he waited for the trial  of co-accused  to be over and thereafter he preferred the instant petition seeking quashing on the basis of their acquittal. Hence, it is clear that the very conduct of the accused that he is not having any scant respect for law and if he has given benefit of their own wrong it would be travesty of justice as held by the Apex Court   in the judgments referred supra.<br>28. The learned counsel appearing for the petitioner also relied upon the judgment of the Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra  and others reported in (2011) 1 SCC 694, and brought to the notice of this Court paragraph No.136 with regard to,  if this  court comes to any other conclusion in view of the other co- ordinate benches have extended the benefit of the matter has to be referred to the larger bench. The said contention also cannot be accepted for the reason that the Apex Court in the judgment referred supra in Yanob Sheikh’s case (supra) and in Umesh’s case (supra), categorically held that the judgment of acquittal of co-accused would not be admissible within meaning of Sections 40 to 44 of the Evidence Act. When the same is not admissible under the Evidence Act and also the Apex Court dealt with the matter in detail referring to Sections 40 to 43 of the Evidence  Act and the Full Bench judgment of the Kerala High Court in Moosa’s case (supra), held that the Judgment of acquittal is not admissible under Sections 40 to 43 of the Evidence Act and the benefit cannot be extended. This Court has already pointed out that each case facts and circumstances has to be considered and the Court has to obey the dictums of the Apex Court held in Yanob Sheikh’s case (supra) and Umesh’s case  (supra).  Hence, I do not find any merit in the petition.<br>29. In view of the discussions made above, I pass the<br>following:<br>ORDER<br>The petition is dismissed.<br> <br><br></h4>', '36f0fbf93d6cce4a8a9c07e8719e7b8d.jpg', '0298c9206c03e9c935ec407875024a58.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-24', 1, '', '', '2021-04-05 22:10:55', '2021-04-05 22:14:14'),
(658, 'SaWklqlXoAo6V401H5mGJ62ku', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Municipalities Act. No confidence motion against President and Vice President. Ten days notice is only directory and NOT mandatory. Karnataka High Court.  23 March 2021', '<h4><span style=\"font-size: 1.3125rem;\">Damayanthi vs The State of Karnataka. </span></h4><h4><span style=\"font-size: 1.3125rem;\">Writ Petition 4904 of 2021 decided on 23 March 2021. </span><br></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Judgment Link</span>: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/376703/1/WP4904-21-23-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/376703/1/WP4904-21-23-03-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: The petitioner is the President of Vitala Town Panchayath. The election to the Town Municipality was held in the year 2016 where 18 members were elected from different wards for a period of five years. The petitioner was elected as the President in the election held on 14.01.2019 and she took charge on 16.01.2019. Her grievance is that the respondent-Chief Officer of the Town Panchayath has issued a meeting notice dated 02.03.2021 scheduling a special general meeting on 12.03.2021 at 11.00 a.m., following a request to move No Confidence Motion given by 12 members of the Town Panchayat against the petitioner.</h4><h4>2. The main ground on which the writ petition is filed is that in terms of the first proviso to Section 42(9) of the Karnataka Municipalities Act, 1964, ten days’ notice has to be given of the intention to move the resolution and this mandatory provision has not been followed. It is submitted that the notice is dated 02.03.2021 and the meeting is scheduled to be held on 12.03.2021 and therefore in terms of the General Clauses Act, if the date on which the notice is issued is excluded, only 9 days or lesser than 9 days notice is given.<br>3. In this regard, learned Counsel for the petitioner places reliance on a decision of a Division Bench in the case of Janardhana Vs. Deputy Commissioner, Bijapur, in W.A.No.2392/1982 decided on 01.10.1982 reported in the short notes of cases 1982 Kar.L.J. 60. It is submitted that the Division Bench has held that atleast 10 days notice of the no confidence motion is required to be given and if there is no clear 10 days notice between the issuance of the notice and the holding of the meeting, any resolution passed at a meeting called before the expiry of 10 days, whatever may be the resolution of the meeting, cannot be considered as valid. It was held that a resolution passed in breach of a statutory provision cannot be upheld. The High Court in exercise of its discretion cannot refuse to quash the invalid resolution.<br><b style=\"background-color: rgb(255, 255, 0);\">6. What is required to be considered is whether the 10 days’ notice as prescribed in the proviso to Section 42(9) of the Karnataka Municipalities Act is directory or mandatory and whether the President/Vice-President against whom the No Confidence Motion is moved, can be permitted to press into service the fulfillment of giving ten days notice.</b><br>7. The Hon’ble Supreme Court in the case of K.Narasimhiah (supra) was also considering the case of an elected President of a Municipality who was aggrieved by a special general meeting and a resolution passed by the members expressing no confidence in the Municipal President. The request for expressing no confidence was moved by the requisite number of members to the President. The President did not take steps for convening the meeting and therefore, the Vice-President acted in the matter calling a meeting to discuss the resolution to express No Confidence in the President. A notice was issued by the Vice President proposing to hold a special general meeting of the Municipality in the office premises and asking the members to be present in time. 15 of the 20 Councillors were served with notice personally on the very same day when the notice was issued. Three other Councillors and the President were served with the notice 2 days subsequently. Although the President was present in the meeting, however after some time he left the meeting and therefore, the Vice President held the meeting. The no confidence meeting was moved against the President and the resolution was passed. Challenging the legality of the proceedings of the meeting and the resolution passed by the Members of the Municipality, the President had approached the High Court. Three grounds were raised. Firstly, that the requisite three days notice was not served on all the members and so the meeting was not validly held. The second ground urged was that the meeting cannot be said to be properly held as the President was not allowed to preside and the Vice-President presided and thus, Section 24(1)(a) of the Mysore Town Municipalities Act, 1951, was contravened. Thirdly, it was urged that the request for moving the resolution for No Confidence did not comply with the proviso to Section 23(9) of the Act, as 15 days’ notice was not given of the intention to move the resolution.<br>8. The case of the petitioner regarding 15 days notice not been given of the intention to move the resolution did not appear to have been pressed at the hearing before the High Court, as it was noticed by the Supreme Court that there was no mention in the judgment of any such argument. On the question as to whether failure to serve three days’ notice of the meeting on all the Councillors, this Court had followed its decision in  another  writ petition in W.P.No.2280/1963 and rejected the petitioner’s contention. The Hon’ble Supreme Court noticed that this Court took a view that as the notice were sent on the 10th of October they must be held to have been given on that date even though some of the members were actually served on the 11th, 12th and 13th; but apart from that this Court was of the opinion that the provision about three days’ notice was only directory and not mandatory and so the omission to give notice would  not  affect the validity of the resolution.<br>9. The main contention that three days notice of the special general meeting was not given and so the meeting should be declared invalid was considered by the Hon’ble Supreme Court and the question as to whether it was mandatory or directory was considered elaborately. It was held that the use of the word ‘shall’ is not conclusive on the question. As in all the other matters of statutory construction, the decision of this question depends on the ascertainment of the legislature’s intention. The Hon’ble Supreme Court went on to hold that the main object of giving the notice is to make it possible for the Councillors to so arrange their other business as to be able to attend the meeting. For an ordinary general meeting the notice provided is of seven clear days. That is expected to give enough time for the purpose. But a lesser period of three clear days is considered sufficient for “special general meetings” generally. It was held that the obvious reason for providing a shorter period of such meetings is that these are considered more important meetings and Councillors are expected to make it convenient to attend to these meetings even at the cost of some inconvenience to themselves. Where the special general meeting is to dispose of some matter of great urgency it is considered that a period of even less than three clear days’ notice would be sufficient. The Hon’ble Supreme Court also noticed Section 36 of the Act, which provided that no resolution of a municipal council or any committee appointed under the Act shall be deemed invalid on account of any irregularity in the service of notice upon any councillor or member, provided that the proceedings of the municipal council or committee were not prejudicially affected by such irregularity. Considering the said provision, the Hon’ble Supreme Court held that it is reasonable to think that the service of notice mentioned in this provision refers to the giving of notice to the Councillors. Quite clearly, any irregularity in the manner of giving the notice would be covered by the words “irregularity in the service of the notice upon any Councillor”. It was therefore held that it appears reasonable to think that in making such a provision in Section 36 the legislature was not thinking only of irregularity of the mode of service but also of the omission to give notice of the full period as required.<br>10. The Hon’ble Supreme Court also noticed the English law and proceeded to hold that the legislature may not have gone to the length of saying that the failure to serve the notice will not make the meeting invalid. It has instead said that any irregularity in the service of notice would not make a resolution of the Council invalid provided that the proceedings were not prejudicially affected by any irregularity. The logic of making such a provision in respect of irregularity in the service of notice becomes strong if the fact that the notice given was short of the required period is considered an irregularity. Therefore, the Hon’ble Supreme Court categorically held that the fact that some of the Councillors received less than three clear day’s notice of the general meeting did not by itself make the proceedings of the meeting or the resolution passed therein invalid. It went on to hold that it would be invalid only if the proceedings were prejudicially affected by such irregularity. It was noticed that 19 of the 20 Councillors attended the meeting and out of the 19, 15 voted in favour of the resolution of no-confidence against the appellant and therefore, there was absolutely no reason for thinking that the proceedings of the meeting were prejudicially affected by the “irregularity in the service of notice”.<br>11. In Smt.Manjula’s case (supra) conflicting decisions in the case of Mallamma Vs. State of Karnataka and Others, ILR 2002 Kar 4253; Abdul Razak Vs. The Assistant Commissioner, Davanagere, Sub Division, 2005 (1) KLJ 230; M.Puttegowda and Another Vs. The Assistant Commissioner, Mysore Sub-Division, 2002(1)KLJ 16 (DB) and Smt.Laxmavva Vs. The State of Karnataka, ILR 2007 KAR 1028 were considered. Going by the decision in the case of Mallamma and Smt.Laxmavva, the co-ordinate Bench went on to hold that mere attaching a copy of the proposed Motion would be duplication of the work and that by itself cannot be a ground to set at naught the exercise of democratic right of the members and when the majority of the members make their intention clear, mere non-enclosing a copy of the proposed Motion would be only irregularity and does not cause any prejudice to other side, particularly, on account of the notice also incorporating the proposal of No Confidence Motion and thus, there were substantive compliance of the requirement of Rule 3(1) of the Karnataka Panchayat Raj (Motion of No-Confidence against Adhyaksha and Upadhyaksha) Rules, 1994.<br>12. When the matter was taken up for admission, this Court by order dated 10.03.2021 permitted the meeting scheduled to be held on 12.03.2021 at 11.00 a.m. to go on as scheduled, however the respondent-authorities were directed not to declare the results or the outcome of the meeting. The results were directed to be kept in sealed cover and await further directions of this Court.<br><b style=\"background-color: rgb(255, 255, 0);\">13. On the merits of the matter, this Court is of the opinion that the decision of the Hon’ble Supreme Court squarely covers the issue. As held by the Hon’ble Supreme Court, the provisions of Section 42 is directory and not mandatory. Moreover, the provision of issuance of notice and the time required is for the benefit of the members of the Council/Municipality. Even in their case the Hon’ble Supreme Court has held that if a few members were not served with the notice like the other members and there was a shortage of 2-3 days, that by itself cannot be held to be prejudicial even to the members, let alone the President against whom the motion of no confidence is sought to be moved. The President, at any rate, cannot have a grievance that the notice which was issued was not of ten clear days. </b>As ascertained, factually, out of the 18 members of the Town Municipality 13 have attended the meeting and their decision has been put in a sealed cover.<br>14. For the reasons stated above, the writ petition is required to be dismissed and is accordingly dismissed.<br>15. The respondent Chief Officer-Vitla Town Panchayath, is directed to open the sealed cover and declare the results. The further action consequent to the declaration of the outcome of the meeting shall be given effect to by the Chief Officer, in accordance with law.<br><br></h4><div><br></div>', '8ba6e024cda6f05a807fedc3f84f0306.jpg', '038edf3bc2ee4a24b14e81762d82ff0c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-23', 1, '', '', '2021-04-05 22:42:23', '2021-04-05 12:23:40'),
(659, 'qHSoCUCIRaCmA4ptnx0NtABA3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Companies Act, 1956. Section 538. Official Liquidator can NOT launch criminal prosecution without obtaining sanction of the Company Court-Tribunal. Karnataka High Court. 23 March 2021', '<h4>Avinash Subramanyam and another vs The Official Liquidator. </h4><h4>Criminal Petition 1159 of 2012 decided on 23 March 2021. </h4><h4>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/377098/1/CRLP1159-12-23-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/377098/1/CRLP1159-12-23-03-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:&nbsp;The present respondent filed a complaint under C.C. No.545/2007 before the learned Special Court ( Economic Offences), Bengaluru under Section 538(1)(c) of the Companies Act, 1956 read with Rule 9 of the Companies (Court) Rules, 1959 and Section 200 of Code of Criminal Procedure against the present petitioners alleging failure on the part of the petitioners in handing over the books and records of M/s. Shimbu Imports and Exports (P) Ltd. (in liquidation) punishable for default under Section 538(1)(c) of the Act.<br>2. The present petitioners filed an application under Section 245 of the Cr.P.C. read with Section 633 of the Act seeking their discharge from the offence punishable under Section 538(1)(c) of the Act.<br>3. The Trial Court by its impugned order dated 18.11.2011 kept open the said application and posted the case for recording of evidence stating that the same would be in consonance with the provisions of Section 244 of Cr.P.C. and other provisions under Chapter XX of Cr.P.C. and the Act and the 1959 Rules.<br>6. The only point that arises for my consideration is whether the impugned Order of the Trial Court warrants interference by exercise of power under Section 482 of Cr.P.C. by this Court?&nbsp;<br>8. Learned Senior Counsel more vehemently submitted that the Official Liquidator has not obtained the sanction of the Court for instituting the present criminal petition under challenge against the present petitioners which is mandatory under Section 457(1)(a) of the Act, as such, the entire proceeding is vitiated and deserves to be quashed. In his support, he relied upon the Judgment of the Hon’ble Apex Court in Jaswantrai Manilal Akhaney Vs. State of Bombay reported in (1956) 26 Comp Cas 340 and also the Judgment of the Andhra Pradesh High Court in Official Liquidator Vs. T.J. Swamy and Others reported in (1992) 73 Comp Cas 583.&nbsp;<br>9. Learned Official Liquidator in his very brief argument submitted that for initiation of any action under Section 538(1)(c) of the Act for violation of Section 457(1) of the Act, no sanction is required. In his support, he relied upon an Order dated 19.01.2001 passed by the Delhi High Court in D.K. Kapur Vs. Reserve Bank of India and Others reported in&nbsp; 90 (2001) DLT 127.<br>11. Section 538(1)(c) of the Act reads as below: “538. Offences by officers of companies in liquidation:<br>(1) If any person, being a past or present officer of a company, which, at the time of the commission of the alleged offence, is being wound up, whether by the Tribunal or voluntarily, or which is subsequently ordered to be wound up by the Tribunal or which subsequently passes a resolution for voluntary winding up, -<br>(a) xxxx (b) xxxx<br>(c) does not deliver up to the liquidator, or as he directs, all such books and papers of the company as are in his custody or under his control and which he is required by law to deliver up;<br>...... shall be punishable ..... with imprisonment for a term which may extend to two years or with fine, or with both<span style=\"white-space:pre\">	</span>”<br>12. The main contention of the petitioners is, to institute any criminal proceeding for the alleged violation of Section 538(1)(c) of the Act, though the Official Liquidator has power under Section 457(1)(a) of the Act, but a prior sanction of the Tribunal is mandatory which in the instant case the Official Liquidator has not obtained, as such, the entire proceeding is vitiated.<br>13. In Jaswantrai Manilal Akhaney’s case (supra), the Hon’ble Apex Court while dealing with Section 179 of Indian Companies Act, 1913 (which is akin to Section 457 of the Act), discussed the question as to whether leave of the Court was necessary for the Liquidator to go against Managing Director of the company which is under liquidation? In that regard, at page Nos.354 and 355 of its Judgment, Hon’ble Apex Court was pleased to observe as below:<br></h4><h4 style=\"margin-left: 25px;\">“It now remains to deal with certain objections relating to the illegality or irregularity in the procedure followed in the trial of this case. It was argued that this prosecution was incompetent for the reason that no sanction of the Company Judge had been obtained under section 179 of the Indian Companies Act. The relevant portion of section 179 is as follows:-<br>\"The official liquidator shall have power, with the sanction of the Court to do the following things:<br>(a) to institute or defend any suit or prosecution, or other legal proceeding, civil or criminal, in the name and on behalf of the company;<span style=\"white-space:pre\">	</span>\"<br>In terms the section lays down the powers of the official liquidator. Such a liquidator has to function under the directions of the court which is in charge of the liquidation proceedings. One of his powers is to institute prosecutions in the name and on behalf of the company under liquidation with the sanction of the court. This section does not purport to impose any limitations on the powers of a criminal court to entertain a criminal prosecution launched in the ordinary course under the provisions of the Code of Criminal Procedure. Where a prosecution has to be launched in the name of, or on behalf of, the company, it naturally becomes the concern of the Judge to see whether or not it was worthwhile to incur expenses on behalf of the company and, therefore, the section requires the sanction of the&nbsp; Judge before the liquidator can undertake the prosecution or defence in the name of and on behalf of the company ”</h4><h4>14. In Official Liquidator’s case(supra), the Andhra Pradesh High Court with respect to obtaining the prior sanction&nbsp; of the Court for instituting any proceeding by the Official Liquidator, was pleased to hold that for an application under Section 543(1) of the Companies Act, 1956, the sanction contemplated under Section 457 of the Act is implied because the application is being presented to the company court itself; express sanction under Section 457 is required where applications are to be made to forums other than the company court.<br><b style=\"background-color: rgb(255, 255, 0);\">15. Thus the above two Judgments make it very clear that where a prosecution is to be launched in the name of or on behalf of the company, the Official Liquidator though has got power to launch such a proceeding under Section 457 of the Act but before launching he should obtain the sanction of the Tribunal</b> (prior to amendment of the year 2003 it was “the court”).<br>19. Incidentally in D.K. Kapoor’s case, the very same Delhi High Court in para 12 of its Order has relying upon Jaswantrai Manilal Akhaney’s case (supra), distinguished the same with respect to Section 446 of the Act. However, in the said case, nowhere it mentions that for institution of a proceeding, civil or criminal in the name of and on behalf of the company under liquidation, sanction of the Courts is not required. On the other hand, in its Order at para 17, by relying upon Jaswantrai Manilal Akhaney’s case (supra) it has shown at para 18 that such a sanction is necessary but it is not required for a proceeding under Section 446 of the Act.<br>In the instant case, admittedly the proceeding initiated by the Official Liquidator since not being one under Section 446 of the Act but it is under Section 457(1)(a) of the Act, the respondent / Official Liquidator ought to have obtained sanction as mandated and only then proceeded further. Since such a sanction has admittedly not been obtained, the entire proceedings initiated against the petitioners in the Trial Court stands vitiated. Therefore, without going into the aspect of the entitlement of the petitioners for any relief under Section 633 of the Act, suffice it to say that the entire criminal proceeding pending in the Trial Court deserves to be quashed, however, reserving liberty to the petitioner therein (respondent herein) to proceed afresh if it feels like and in accordance with law. Accordingly, I proceed to pass the following:<br>ORDER<br>The criminal petition is allowed.<br>The entire proceeding in C.C. No.545/2007 pending on the Court of learned Special Court ( Economic Offences), Bengaluru, against the present petitioners stands quashed. However, the petitioner therein (respondent herein) is at liberty to initiate the proceeding for the alleged violation of Section 538(1)(c) of the Companies Act, 1956, if it desires so, in accordance with law and after duly obtaining the sanction of the Court as required under Section 457(1)(a) of the Companies Act, 1956.<br>Registry to transmit a copy of this Order to the concerned Trial Court.<br><br></h4>', '08924dbbf655a1e765e08f1b674a7487.jpg', '1f4078fe716ae64ec187fa79201ccd84.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-23', 1, '', '', '2021-04-06 02:49:07', '2021-04-06 02:49:07'),
(660, 'AUaS38ZBTaiBTAb4m2pbN1naP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Law. Alienation by karta of a joint Hindu family. For the benefit of the joint Hindu Family, a Karta can surrender tenancy rights of tenanted premises used for family business. Supreme Court. 5 April 2021', '<h4>Kiran Devi vs The Bihar State Sunni Wakf Board. </h4><h4>Civil Appeal 6149 of 2015 decided on 5 April 2021.</h4><h4>Justice Ashok Bhushan, Justice S. Abudl Nazeer and Justice Hemant Gupta. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2013/11190/11190_2013_39_1501_27289_Judgement_05-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2013/11190/11190_2013_39_1501_27289_Judgement_05-Apr-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 1. The challenge in the present appeal is to an order passed by the High Court of Judicature at Patna dated 6.2.2013 whereby a writ petition filed by respondent No. 41 herein was allowed, holding that the tenant in the premises in question was representing a joint Hindu family and that the Karta was not competent to surrender the tenancy rights in favour of respondent No. 1-The Bihar State Sunni Wakf Board and consequently the induction of the appellant as a tenant by the Wakf Board was illegal. Accordingly, a direction was issued to dispossess the appellant from the suit premises and to handover the vacant possession to the plaintiff. <br>36. Even if Devendra Prasad Sinha is considered to be representing the joint Hindu family while carrying out hotel business in the tenanted premises, the question as to the act Karta to surrender of tenancy was for the benefit of the joint Hindu family. The powers of Karta of a Joint Hindu Family have been described in 22nd Edition of Hindu Law by Mulla (para 240) inter alia to the following effect:<br></h4><h4 style=\"margin-left: 25px;\">“Alienation by manager of coparcenary property for legal necessity. – (1) The power of the manager of a joint Hindu family to alienate the joint family property is analogous to that of a manager for an infant heir, as defined by the Judicial Committee.<br>(2) The manager of a joint Hindu family has the power to alienate for value, joint family property, so as to bind the interest of both adult and minor coparceners in the property, provided that the alienation is made for legal necessity, or for the benefit of the estate. A manager (not being the father) can alienate even the share of a minor coparcener to satisfy an antecedent debt of the minor’s father (or grandfather) when there is no other reasonable course open to him (Dharmaraj Singh v. Chandrasekhar Rao, (1942) Nag 214). It is not necessary to validate the alienation that the express consent of the adult members should have been obtained. In Suraj Bunsi Koer v. Sheo Proshad, (1879) 6 IA 88, p. 101, the Judicial Committee stated that it was not clearly settled whether where an alienation is made by a manager for a legal necessity, but without the express consent of the adult coparceners, the alienation is binding on them. However, in later decisions of the same tribunal, the view taken is that if legal necessity is established, the express consent of the adult coparceners is not necessary (Sahu Ram v. Bhup Singh, AIR 1917 PC 61). As to alienation by manager for joint family business. Where any such transaction has been entered into for legal necessity by a manager, it would be deemed to be on behalf of the family and would bind it. The position is not worsened by the fact that a junior member joins the transaction and the joining by him is abortive by reason of his minority (Radha Krishnadas v. Kaluram, AIR 1967 SC 574).”<br></h4><h4>37. The pleaded stand of the Plaintiff is that the hotel was closed for several years. Therefore, the liability to pay monthly rent continued to accrue upon karta - Devendra Prasad Sinha. The question is as to whether, in these circumstances, on account of cessation of activities of running of the hotel, the act of the surrender of tenancy is in fact for the benefit of the joint family. The learned High Court found that the letter of surrender was not reliable or tenable. The executor of the surrender letter has admitted such surrender letter in the written statement and while appearing as a witness as DW-5. The Mutawalli Md. Salimuddin has also accepted the surrender letter in the written statement and while appearing in the witness box as DW-10. Merely for the reason that signatures in the translated copy do not tally with the Urdu copy is not sufficient to hold the surrender letter as unreliable as the translation can be incorrect but the correctness of the document in has not been disputed by the executor or by the acceptor. The said document could not have been said to be unreliable on the basis of the statement of the plaintiff who is not a party to such transaction. It is one thing to say that the document is unreliable and another to say that the document does not bind the plaintiff. We have no hesitation to hold that the document was validly proved and accepted by the Wakf Board. Therefore, the act of surrender of tenancy was for the benefit of the Joint Hindu family.</h4><h4>We thus hold that the order of the High Court is not sustainable for the reasons recorded above. Consequently, the present appeal is allowed. The order of the High Court is set aside and that of the Wakf Tribunal is restored with no order as to costs. </h4><div><br></div>', 'e2e87db001212be0dbe025f90ea2f989.PNG', '1f0ea48dd641ce60ccebe1e71262e4d3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-05', 1, '', '', '2021-04-06 03:39:52', '2021-04-06 03:43:02');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(661, 'bkLsehqwYsF4zM8q9RQGTGCLi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Narcotic Drugs and Psychotropic Substances Act, 1985. Poverty not a reason to award lesser punishment. Public interest, impact on the society as a whole will always be tilt in favour of the suitable higher punishment. Supreme Court. 6 April 2021', '<h4>Gurdev Singh vs State of Punjab. </h4><h4>Criminal Appeal 375 of 2021 decided on 6 April 2021.</h4><h4> </h4><h4>Justice Dr Dhananjaya Y Chandrachud and Justice M R Shah<br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/12408/12408_2020_36_1501_27321_Judgement_06-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/12408/12408_2020_36_1501_27321_Judgement_06-Apr-2021.pdf</a><br></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 7. Now so far as the submission on behalf of the accused that awarding of adequate sentence is question of personal liberty protected by Article 21 of the Constitution of India and there is requirement of giving due weightage to the mitigating and aggravating circumstances and in the present case the mitigating circumstances in favour of the accused are more than the aggravating circumstances and therefore the punishment higher than the minimum provided under the Act is not justified and/or warranted is concerned, at the outset, it is required to be noted that the appellant is held to be guilty for the offence under Section 21 of the Act and found to be in possession of 1 kg heroin which is four times more/higher than the commercial quantity. At this stage, the statement of objects and reasons for enactment of NDPS Act are required to be referred to. Before the NDPS Act 1965 was enacted, the statutory control over narcotic drugs was exercised in India through number of Central and State enactments viz. — The Opium Act, 1857, (b) the Opium Act, 1878 and (c) The Dangerous Drugs Act, 1930. However, with the passage of time and developments in the field of illicit drug traffic and drug abuse at national and international level it was noticed and found that (i) The scheme of penalties under the aforesaid ACTS was not sufficiently deterrent to meet the challenge of well- organized gangs of smugglers; (ii) The country has for the last few years been increasingly facing the problem of transit traffic of drugs coming mainly from the neighboring countries and destined mainly to Western countries; (iii) During recent years new drugs of addiction which have come to be known as psychotropic substances have appeared on the scene and posed serious problems to national governments. Therefore with a view to overcome the aforestated deficiencies the NDPS Act, 1985 came to be enacted. That thereafter to check the menace of dangerous drugs flooding the market, Section 37 of the Act came to be amended and it has been provided that the accused of an offence under the Act shall not be released on bail during trial unless the mandatory conditions provided in Section 37 are satisfied. </h4><h4>While considering the submission on behalf of the accused on mitigating and aggravating circumstances and the request to take lenient view and not to impose the punishment higher than the minimum sentence provided under the Act it should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims who are vulnerable; it cause deleterious effects and deadly impact on the society; they are hazard to the society. Organized activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances shall lay to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, it has a deadly impact on the society as a whole. Therefore, while awarding the sentence/punishment in case of NDPS Act, the interest of the society as a whole is also required to be taken in consideration. Therefore, while striking balance between the mitigating and aggravating circumstances, public interest, impact on the society as a whole will always be tilt in favour of the suitable higher punishment. Therefore, merely because the accused is a poor man and/or a carrier and/or is a sole bread earner cannot be such mitigating circumstances in favour of the accused while awarding the sentence/punishment in the case of NDPS Act. Even otherwise, in the present case, the Special Court, as observed hereinabove has taken into consideration the submission on behalf of the accused that he is a poor person; that he is sole bread earner, that it is his first offence, while not imposing the maximum punishment of 20 years R.I and imposing the punishment of 15 years R.I. only.<br>8. In view of the above and for the reasons stated hereinabove, there is no substance in the present appeal and the same deserves to be dismissed and is accordingly dismissed.<br><br></h4>', '2ebb06d019af4b9e9e589031f5c9a278.PNG', '647110ea652ebc403ff71fa79fbc0b62.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-06', 1, '', '', '2021-04-06 23:33:15', '2021-04-06 23:35:51'),
(662, '2HvvfFI0O7cPj6KXL9VIJbDQe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A murderer kills one or two persons. Those who deal in narcotic drugs are causing death or inflicting death blow to number of innocent vulnerable young victims which is a deadly impact on the society. Supreme Court. 6 April 2021', '<h4>Gurdev Singh vs State of Punjab.<br>Criminal Appeal 375 of 2021 decided on 6 April 2021.<br>Justice Dr Dhananjaya Y Chandrachud and Justice M R Shah<br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/12408/12408_2020_36_1501_27321_Judgement_06-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/12408/12408_2020_36_1501_27321_Judgement_06-Apr-2021.pdf</a><br>Relevant paragraphs: 7. Now so far as the submission on behalf of the accused that awarding of adequate sentence is question of personal liberty protected by Article 21 of the Constitution of India and there is requirement of giving due weightage to the mitigating and aggravating circumstances and in the present case the mitigating circumstances in favour of the accused are more than the aggravating circumstances and therefore the punishment higher than the minimum provided under the Act is not justified and/or warranted is concerned, at the outset, it is required to be noted that the appellant is held to be guilty for the offence under Section 21 of the Act and found to be in possession of 1 kg heroin which is four times more/higher than the commercial quantity. At this stage, the statement of objects and reasons for enactment of NDPS Act are required to be referred to. Before the NDPS Act 1965 was enacted, the statutory control over narcotic drugs was exercised in India through number of Central and State enactments viz. — The Opium Act, 1857, (b) the Opium Act, 1878 and (c) The Dangerous Drugs Act, 1930. However, with the passage of time and developments in the field of illicit drug traffic and drug abuse at national and international level it was noticed and found that (i) The scheme of penalties under the aforesaid ACTS was not sufficiently deterrent to meet the challenge of well- organized gangs of smugglers; (ii) The country has for the last few years been increasingly facing the problem of transit traffic of drugs coming mainly from the neighboring countries and destined mainly to Western countries; (iii) During recent years new drugs of addiction which have come to be known as psychotropic substances have appeared on the scene and posed serious problems to national governments. Therefore with a view to overcome the aforestated deficiencies the NDPS Act, 1985 came to be enacted. That thereafter to check the menace of dangerous drugs flooding the market, Section 37 of the Act came to be amended and it has been provided that the accused of an offence under the Act shall not be released on bail during trial unless the mandatory conditions provided in Section 37 are satisfied.<br><b style=\"background-color: rgb(255, 255, 0);\">While considering the submission on behalf of the accused on mitigating and aggravating circumstances and the request to take lenient view and not to impose the punishment higher than the minimum sentence provided under the Act it should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims who are vulnerable; it cause deleterious effects and deadly impact on the society; they are hazard to the society.</b> Organized activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances shall lay to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, it has a deadly impact on the society as a whole. Therefore, while awarding the sentence/punishment in case of NDPS Act, the interest of the society as a whole is also required to be taken in consideration. Therefore, while striking balance between the mitigating and aggravating circumstances, public interest, impact on the society as a whole will always be tilt in favour of the suitable higher punishment. Therefore, merely because the accused is a poor man and/or a carrier and/or is a sole bread earner cannot be such mitigating circumstances in favour of the accused while awarding the sentence/punishment in the case of NDPS Act. Even otherwise, in the present case, the Special Court, as observed hereinabove has taken into consideration the submission on behalf of the accused that he is a poor person; that he is sole bread earner, that it is his first offence, while not imposing the maximum punishment of 20 years R.I and imposing the punishment of 15 years R.I. only.<br>8. In view of the above and for the reasons stated hereinabove, there is no substance in the present appeal and the same deserves to be dismissed and is accordingly dismissed.</h4><div><br></div>', '79cbca48a607a235ad6ec9b7a91b7d40.jpg', '738c453a85f7ad453d24351707ff5840.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-06', 1, '', '', '2021-04-07 00:53:32', '2021-04-07 00:55:39'),
(663, '6x49XfZtJFuI0zUMYCFJAVjo6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Town Planning. Illegal and unauthorized constructions not only violate the municipal laws and concept of land development of particular area but also affect fundamental and constitutional rights of other persons. Karnataka High Court. 16 March 2021', '<h4>Floriana Estate Apartment Owners Welfare Association vs The Commissioner Bengaluru Development Authority and others. <br>Writ Appeal 3070 of 2018 decided on 16 March 2021. </h4><h4>Justice Alok Aradhe and Justice Nataraj Rangaswamy. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/373385/1/WA3070-18-16-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/373385/1/WA3070-18-16-03-2021.pdf</a></h4><h4 style=\"\"><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: In this intra court appeal under Section 4 of the Karnataka High Court Act, 1961 the appellants have assailed the validity of the order dated 25.09.2018 passed by the learned Single Judge by which writ petition preferred by the appellant has been dismissed with cost of Rs.1 Lakh. <br></h4><h4><b style=\"background-color: rgb(255, 255, 0);\">14. We have considered the submissions made on both sides and perused the record. Before proceeding further we may refer to the well settled legal principles. The law recognizes the right of person to construct residential houses in the residential area subject to the terms and conditions of the statute governing the same. The Town Planning legislations are regulatory in nature. The right to property of a person would include right to construct a building. An illegal and unauthorized construction of building and other structures not only violate the municipal laws and the concept of land development of the particular area but also affect fundamental rights and constitutional rights of other persons. In Dipak Kumar Mukherjee supra, the Supreme Court has taken note of menace of illegal and unauthorized construction of buildings and other structures in different parts of the country and has held that such an activity has acquired monstrous proportion. It is well settled proposition that in administrative matter the court should ordinarily defer the decision to the administrators unless decision is clearly illegal and shockingly arbitrary and the court cannot sit in appeal over the decision of the executive. The doctrine of Res Judicata and Constructive Res Judicata as enshrined in section 11 of the Code of Civil Procedure applies to the writ proceeding as well.</b></h4><h4 style=\"\">15. After having noticed the legal position we may advert to the facts of the case in hand. The issues which arise for consideration in this appeal in view of submissions made at the bar are as follows:<br>i) Whether a composite plan was prepared in respect of lands situate in survey no. 53/1 and 53/2 which show the exit and entry road of six meters each?<br>ii) Whether the plan which was sanctioned on 21.09.2016 was obtained by suppression of earlier sanctioned plan dated 16.02.2001?<br>iii) Whether the sanctioned plan dated 21.09.2016 has been issued in violation of section 17 of Karnataka Town and Country Planning Act, 1961, the building bye laws, and zoning regulations?<br>iv) Whether there has been a bifurcation of the plot under section 17 of the Act?<br>v) Whether the writ petition filed by the association was barred on the principles of Constructive Res Judicata and Res Judicata?<br>vi) Whether this court can examine the validity of the sanction plan in this proceeding which emanates from an order passed by the learned single judge in exercise of powers under article 226 of the Constitution?<br>16. The learned single judge has dismissed the writ petition.</h4><h4>22.<span style=\"white-space:pre\">	</span>Since, we have relegated the appellant to the statutory remedy, it is directed that construction if any made by the respondent no. 6 on the land in question shall be at the risk and consequences of respondent No. 6 and it shall also not be entitled to claim equity in respect of construction made by it from 30.04.2019 till the decision is taken by the competent authority under section 308 and 321 of the Act. Needless to state that the appellant shall raise a grievance if any before the competent authority under section 308 and 321 of the Karnataka Municipal Corporation Act, 1976 within a period of two weeks from the date of receipt of certified copy of this order and the competent authority after affording an opportunity of hearing to the parties shall decide the issues which may be raised by the appellants without being influenced by any of the observations contained in this order within three months therefrom.<br>In the result, the appeal is disposed of.<br><br></h4>', '5bd01758c0ca12e7c75eab4203f876ad.PNG', 'eb6d2535ab4472ae786ff323cc157673.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-16', 1, '', '', '2021-04-07 01:42:14', '2021-04-07 01:44:05'),
(664, '1vX6GNA5qsicQk5qbsDzCzTIG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 200. Magistrate can not refer complaint for investigation to Police under Section 156, after taking cognizance of the offence. After taking cognizance, he can not revert back. Karnataka High Court.  24 March 2021', '<h4>Ashok Hanamanthappa Badami vs The State of Karnataka and another. </h4><h4>Criminal Petition 100859 of 2018 decided on 24 March 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/377110/1/CRLP101492-17-24-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/377110/1/CRLP101492-17-24-03-2021.pdf </a><br></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: In these petitions, the petitioners have questioned the order dated 29. 6.2017  passed  in PC No.1 /2017 by the Principal District  and Sessions Judge, Gadag, taking cognizance of the offence alleged and registering the case as  a private complaint and thereafter, referring the matter for investigation and sought to quash the entire proceedings pending before the trial Court.<br>7. The Hon’ ble Apex Court in the case of Priyanka Srivastava and Another Vs. State of Uttar Pradesh and Others reported in 2015 (6 ) SCC 287 has laid down  certain  guidelines regarding the procedure to be followed by the trial Court when a complaint is filed under Section 200  of Cr. P.C. It  is  also  observed therein that when  an application for direction for investigation  is  filed under Section 156 (3), the Magistrate has to exercise his/her discretion and in the interest of justice, the Magistrate has to apply his/her proper mind prior to directing for investigation. The duty and approach of the trial Court  while  exercising the power under Section 156 (3) of Cr. P. C. has been clarified in the said decision.<br><b style=\"background-color: rgb(255, 255, 0);\">8. It is also to be noted that in the present case, the matter was referred for investigation to the Police under Section 156(3 ) of Cr. P. C. after taking cognizance of the alleged offence. </b><br>9. Paragraph-24 of the judgment in Priyanka Srivastava’ s case ( supra), is extracted herein below:</h4><h4 style=\"margin-left: 25px;\">“24. In CREF Finance Ltd. Vs. Shree Shanthi Homes (P) Ltd. (2005) 7  SCC  467, the Court while dealing with power of the Magistrate taking cognizance of the offences, has opined that having considered the complaint, the Magistrate may consider it appropriate to send the complaint to  the police for investigation under Section 156 (3) of the Code of Criminal Procedure, and again: (Madhao Vs. State of Maharashtra, (2013) 5 SCC 615, para-18:</h4><h4 style=\"margin-left: 50px;\">18. “When a Magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The Magistrate  has  discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offences  and the forwarding of the complaint to  the police for investigation  under Section 156(3 ) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that court as an alternative to taking cognizance of the offence  itself. As said earlier, in the case of  a  complaint regarding the commission of a cognizable offence, the power under Section 156 (3) of Cr. P.C. can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a) of Cr.P.C. However, if he once takes such  cognizance  and embarks upon the procedure  embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of Section 156 (3).”</h4><h4><span style=\"background-color: rgb(255, 255, 0);\"><b>10. The impugned order dated 29. 6.2017 passed by the learned Sessions Judge is therefore contrary to the  procedure  contemplated  under  Cr. P.C. and the law laid down by the Hon’ ble Apex Court in the aforesaid decision. The learned Sessions Judge after taking cognizance has referred the matter for investigation under Section 156(3) of Cr. P. C. Therefore, the impugned order is not sustainable in law and the same is liable to be set-aside. </b></span>Hence, the following:<br>ORDER<br>a) Petitions are allowed.<br>b) The order dated 29.6.2017 passed by the learned Prl. District and Sessions Judge, Gadag in PC No.1/2017 is hereby set-aside.<br>c) The matter is remitted back  to  the trial Court with a direction to proceed in accordance with law from the stage of receiving the complaint on its file.<br>d) All other contentions of  the  parties are kept open.<br>Sd/- JUDGE<br>JTR</h4><div><br></div>', '9dba013e23f36f9b4d15a44826e0d7db.jpg', 'fd8698e7c6083d8532df5bc439828afc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-24', 1, '', '', '2021-04-07 02:09:45', '2021-04-07 02:35:09'),
(667, '3Xb59YbZwHqAbeokY9AF5DIjp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Companies Act, 1956. Admission of winding up petition. It is not necessary while admitting the petition to establish that the entire claim is undisputed. Interest on delayed payment is a also a claim. Supreme Court. 6 April 2021  ', '<h4>Shital Fibers Ltd vs Indian Acrylics Limited. </h4><h4>Civil Appeal 1105 of 2021 decided on 6 April 2021. </h4><h4>Justice R.F. Nariman, Justice B.R. Gavai and Justice Hrishikesh Roy. Judgment Link: <br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2016/24547/24547_2016_33_1503_27307_Judgement_06-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2016/24547/24547_2016_33_1503_27307_Judgement_06-Apr-2021.pdf</a><br>23. In Vijay  Industries  vs. NATL Technologies Ltd. (2009) 3 SCC 527 relied by the appellant, the learned single judge after finding, that a prima facie case has been made out, admitted the company petition.  However, in appeal, the Division Bench set aside the order of the learned single judge. This Court while setting aside the order of the Division Bench observed thus:</h4><h4 style=\"margin-left: 25px;\">“41. In the present case, on the date of filing of the application, dues in respect of at   least  a part of the debt which   was more  than the amount specified in Section 433 [sic Section 434(1)(a)] of the Companies Act was not denied. It is not a requirement   of the law that the entire debt must be definite and certain. The Division Bench of the High Court proceeded on the basis that the entire sum covering both the principal and the interest must be undisputed </h4><h4 style=\"margin-left: 25px;\">43. The findings of the High Court, with respect, are not correct for more than one reason;  firstly,  because  the  Division Bench did not hold that the invoices were not proved by cogent evidence; secondly, question of leading evidence would arise only after the  company petition is admitted and, thirdly, issuance of invoices and signature of the respondent thereon is not disputed.”</h4><h4>24. It can thus clearly be seen, that this Court had clearly held, that it is not necessary while admitting the petition to establish that the entire claim is undisputed.  We fail to understand, as to how the said judgment of this Court in Vijay Industries (supra) would be applicable to the facts of the present case.  As a matter of fact, in the said case, this Court on consideration of the invoices had come to a conclusion, that the appellant was also entitled for the interest on delayed payment. <br><br><br></h4><p><br></p>', '6c4aa9cbef8bf4e567b5dd543cfb3203.PNG', '857b928210ea08c5f1b4d18518fdca57.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-06', 1, '', '', '2021-04-08 02:38:31', '2021-04-08 02:39:51'),
(668, 'u9QNaI3NFKtoaOrelhD2zksZH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act, 1996. Section 11. Whether an agreement with arbitration clause is novated or not cannot be decided in exercise of limited jurisdiction. Issue shall be referred to arbitrator. Supreme Court. 6 April 2021', '<h4>Sanjiv Prakash vs Seema Kukreja and others. </h4><h4>Civil Appeal 976 of 2021 decided on 6 April 2021.  </h4><h4>Justice R.F. Nariman, Justice B.R. Gavai and Justice Hrishikesh Roy. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/23663/23663_2020_33_1502_27307_Judgement_06-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/23663/23663_2020_33_1502_27307_Judgement_06-Apr-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:  6. By virtue of the Arbitration and Conciliation (Amendment) Act, 2015, by which Section 11(6A) was introduced, the earlier position as to the scope of the powers of a court under Section 11, while appointing an arbitrator, are now narrowed to viewing whether an arbitration agreement exists between parties. In a gradual evolution of the law on the subject, the judgments in Duro Felguera, S.A. v. Gangavaram Port 17 Ltd., (2017) 9 SCC 729 and Mayavati Trading Pvt. Ltd. (P) Ltd. v. Pradyuat Deb Burman, (2019) 8 SCC 714, were explained in some detail in a three-Judge Bench decision in Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1.  <br>7...... that it would be unsafe to conclude one way or the other that an arbitration agreement exists between the parties on a prima facie review of facts of that case, and that a deeper consideration must be left to an arbitrator, who is to examine the documentary and oral evidence and then arrive at a conclusion.<br>9. Judged by the aforesaid tests, it is obvious that whether the MoU has been novated by the SHA dated 12.04.1996 requires a detailed consideration of the clauses of the two Agreements, together with the surrounding circumstances in which these Agreements were entered into, and a full consideration of the law on the subject. None of this can be done given the limited jurisdiction of a court under Section 11 of the 1996 Act. As has been held in paragraph 148 of Vidya Drolia (supra), detailed arguments on <b style=\"background-color: rgb(255, 255, 0);\">whether an agreement which contains an arbitration clause has or has not been novated cannot possibly be decided in exercise of a limited prima facie review as to whether an arbitration agreement exists between the parties. Also, this case does not fall within the category of cases which ousts arbitration altogether, such as matters which are in rem proceedings or cases which, without doubt, concern minors, lunatics or other persons incompetent to contract. There is nothing vexatious or frivolous in the plea taken by the Appellant. On the contrary, a Section 11 court would refer the matter when contentions relating to non-arbitrability are plainly arguable, or when facts are contested. The court cannot, at this stage, enter into a mini trial or elaborate review of the facts and law which would usurp the jurisdiction of the arbitral tribunal.</b></h4><p><br></p>', 'a6a726c963168b3e8989759bdbf42e9e.png', '47e4b34f4884a41551b3d418ea392657.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-06', 1, '', '', '2021-04-08 03:36:05', '2021-04-08 03:39:00'),
(669, 'wUIAgtAbk2cUiFXrkQ8QYrQn3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Income Tax Act, 1961. Third proviso to Section 254-2A which provides for automatic vacation of stay in appeal after 365 days, even if the delay in disposal of appeal is not attributable to the assesse, is unconstitutional. Supreme Court. 6 April 2021', '<h4>Deputy Commissioner of Income Tax and another vs M/s. Pepsi Foods Ltd. </h4><h4>Civil Appeal 1106 of 2021 decided on 6 April 2021. </h4><h4>Justice R.F. Nariman, Justice B.R. Gavai and Justice Hrishikesh Roy.<br><span style=\"background-color: rgb(255, 255, 0);\">Judgment Link</span>: <a href=\"https://main.sci.gov.in/supremecourt/2015/31480/31480_2015_33_1501_27307_Judgement_06-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2015/31480/31480_2015_33_1501_27307_Judgement_06-Apr-2021.pdf</a><br>10......Section 254(2A) of the Income Tax Act was again amended, this time by the Finance Act, 2008 (w.e.f. 01/10/2008). This amendment reads as follows: </h4><h4 style=\"margin-left: 25px;\">“254. Orders of Appellate Tribunal. </h4><h4 style=\"margin-left: 25px;\">(2A) In every appeal, the Appellate Tribunal, where it is possible, may hear and decide such appeal within a period of four years from the end of the financial year in which such appeal is filed under sub-section (1) or sub-section (2) of section 253: </h4><h4 style=\"margin-left: 25px;\">Provided that the Appellate Tribunal may, after considering the merits of the application made by the assessee, pass an order of stay in any proceedings relating to an appeal filed under sub-section (1) of section 253, for a period not exceeding one hundred and eighty days from the date of such order and the 13 Appellate Tribunal shall dispose of the appeal within the said period of stay specified in that order: </h4><h4 style=\"margin-left: 25px;\">Provided further that where such appeal is not so disposed of within the said period of stay as specified in the order of stay, the Appellate Tribunal may, on an application made in this behalf by the assessee and on being satisfied that the delay in disposing of the appeal is not attributable to the assessee, extend the period of stay, or pass an order of stay for a further period or periods as it thinks fit; so, however, that the aggregate of the period originally allowed and the period or periods so extended or allowed shall not, in any case, exceed three hundred and sixty-five days and the Appellate Tribunal shall dispose of the appeal within the period or periods of stay so extended or allowed: </h4><h4 style=\"margin-left: 25px;\"><b style=\"background-color: rgb(255, 255, 0);\">Provided also that if such appeal is not so disposed of within the period allowed under the first proviso or the period or periods extended or allowed under the second proviso, which shall not, in any case, exceed three hundred and sixty-five days, the order of stay shall stand vacated after the expiry of such period or periods, even if the delay in disposing of the appeal is not attributable to the assessee.”</b></h4><h4>14.It is settled law that challenges to tax statutes made under Article 14 of the Constitution of India can be on grounds relatable to discrimination as well as grounds relatable to manifest arbitrariness. These grounds may be procedural or substantive in nature. Thus, in Suraj Mall Mohta 20 and Co. v. A.V. Visvanatha Sastri (1955) 1 SCR 448, this Court struck down Section 5(4) of the Taxation on Income (Investigation Commission) Act, 1947 on the ground that the procedure prescribed was substantially more prejudicial and more drastic to the assessee than the procedure contained in the Indian Income Tax Act, 1922. Section 5(4) of the aforesaid Act was thus struck down as a piece of discriminatory legislation offending against the provisions of Article 14 of the Constitution of India. </h4><h4>15.Instances of taxation statutes being struck down on substantive grounds which had alleged discrimination can be found in the 5-Judge decision of this Court in Kunnathat Thatehunni Moopil Nair v. State of Kerala (1961) 3 SCR 77, in which a uniform tax called “basic tax” levied under the provisions of the Travancore Cochin Land Tax Act, 1955 was held to be discriminatory as it treated unequals equally Likewise, in Union of India v. A. Sanyasi Rao (1996) 3 SCC 465, this Court struck down Section 44-AC of the Income Tax Act as being discriminatory when only particular trades were singled out for discriminatory treatment, reliefs under Sections 28 to 43-C of the Income Tax Act being denied only to such trades. This was done as the denial of such relief had no nexus to the object sought to be achieved by the legislation and resulted in unfairness, arbitrariness and denial of equality of treatment </h4><h4>17. Judged by both these parameters, there can be no doubt that the third proviso to Section 254(2A) of the Income Tax Act, introduced by the Finance Act, 2008, would be both arbitrary and discriminatory and, therefore, liable to be struck down as offending Article 14 of the Constitution of India. First and foremost, as has correctly been held in the impugned judgment, unequals are treated equally in that no differentiation is made by the third proviso between the assessees who 23 are responsible for delaying the proceedings and assessees who are not so responsible. This is a little peculiar in that the legislature itself has made the aforesaid differentiation in the second proviso to Section 254(2A) of the Income Tax Act, making it clear that a stay order may be extended upto a period of 365 days upon satisfaction that the delay in disposing of the appeal is not attributable to the assessee. We have already seen as to how, as correctly held by Narang Overseas (supra), the second proviso was introduced by the Finance Act, 2007 to mitigate the rigour of the first proviso to Section 254(2A) of the Income Tax Act in its previous avatar. Ordinarily, the Appellate Tribunal, where possible, is to hear and decide appeals within a period of four years from the end of the financial year in which such appeal is filed. It is only when a stay of the impugned order before the Appellate Tribunal is granted, that the appeal is required to be disposed of within 365 days. So far as the disposal of an appeal by the Appellate Tribunal is concerned, this is a directory provision. However, so far as vacation of stay on expiry of the said period is concerned, this condition becomes mandatory so far as the assessee is concerned. The object sought to be achieved by the third proviso to Section 254(2A) of the Income Tax Act is without doubt the speedy disposal of appeals before the Appellate Tribunal in cases in which a stay has been granted in favour of the assessee. But such object cannot itself be discriminatory 24 or arbitrary Since the object of the third proviso to Section 254(2A) of the Income Tax Act is the automatic vacation of a stay that has been granted on the completion of 365 days, whether or not the assessee is responsible for the delay caused in hearing the appeal, such object being itself discriminatory, in the sense pointed out above, is liable to be struck down as violating Article 14 of the Constitution of India. Also, the said proviso would result in the automatic vacation of a stay upon the expiry of 365 days even if the Appellate Tribunal could not take up the appeal in time for no fault of the assessee. Further, vacation of stay in favour of the revenue would ensue even if the revenue is itself responsible for the delay in hearing the appeal. In this sense, the said proviso is also manifestly arbitrary being a provision which is capricious, irrational and disproportionate so far as the assessee is concerned.<br>25.The law laid down by the impugned judgment of the Delhi High Court in M/s Pepsi Foods Ltd. v. ACIT (2015) 376 ITR 87 is correct. Resultantly, the judgments of the various High Courts which follow the aforesaid declaration of law are also correct. <b style=\"background-color: rgb(255, 255, 0);\">Consequently, the third proviso to Section 254(2A) of the Income Tax Act will now be read without the word “even” and the words “is not” after the words “delay in disposing of the appeal”. Any order of stay shall stand vacated after the expiry of the period or periods mentioned in the Section only if the delay in disposing of the 35 appeal is attributable to the assessee. The appeals of the revenue are, therefore, dismissed.</b></h4><div><br></div>', '60eb3d62c5d49d6aec01273fe934ccad.PNG', '03e78701f236d019fe468928b0e70ce9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-06', 1, '', '', '2021-04-08 04:32:28', '2021-04-08 04:34:30'),
(670, '47v4OrukH2nkTxH8uMfSgCcUe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Narcotic Drugs and Psychotropic Substances Act. Grant of bail. Whether the accused-petitioner had conscious possession of drugs or not cannot be decided by the Court by holding a mini trial while considering bail application. Kar High Court. 15 March 2021', '<h4>Surjeet Singh vs The State of Karnataka. </h4><h4>Criminal Petition 200176 of 2021 decided on 15 March 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/377104/1/CRLP200176-21-15-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/377104/1/CRLP200176-21-15-03-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: This Criminal Petition is filed under Section 439 of Cr.P.C. praying to allow the bail petition and order to release the petitioner on bail in Special Case (NDPS) No.220/2020 (arising out of Crime No.25/2019-20/090505 of Excise Aurad-B Range PS) pending on the file of Principal District and Sessions Judge, Bidar for the offences punishable under Sections 15, 21(c), 25, 61 and 8(c) of Narcotic Drugs and Psychotropic Substances Act.<br>3. The learned counsel for the petitioner/accused Sri R.S.Lagali vehemently contended that the petitioner is innocent of the offences alleged against him and he was only a driver of the lorry in question and therefore sought for grant of bail. He further contended that absolutely there is no material either in the contents of mahazar or in the statements of the persons who have participated in the raid that petitioner was in conscious possession of the seized opium bags. He also contended that materials available on record does not establish direct or indirect nexus with the seized article insofar as the accused/petitioner is concerned and thus sought for grant of bail. He also contended that there is no compliance of Section 50 of the Narcotics Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to  as  \'NDPS Act\' for short) and therefore, the entire raid proceedings stood vitiated as is enunciated by the Hon\'ble Apex Court in catena of judgments and thus sought for grant of bail. He also contended that the petitioner being the resident of Atwan village, Amb taluk in Una district of Himachal Pradesh was no way connected with the contraband materials alleged to have been seized by the excise police and thus a false case has been foisted by the police for statistic purpose and thus sought for grant of bail. He also contended that charge sheet having been filed, the main apprehension of the prosecution that the petitioner may not cooperate with the investigation and would tamper the prosecution evidence is now not available for the prosecution and thus sought for grant of bail. <br>4. In support of his arguments, he relied upon the judgment of the Hon\'ble Apex Court in the case of Directorate of Revenue and Another Vs. Mohammed Nisar Holia reported in (2008) 2 SCC 370 wherein it has been held as under:<br>\"HEAD NOTE A: Narcotic Drugs and Phychotropic Substances Act, 1985 – Sections 42, 43 and Section 43 Explanation – Search in place not open to the public though situated in public place ( a room of a hotel) based on prior information – Applicability of Section 42 or Section 43 – Room in hotel if a “public place” under Section 43 Explanation – Held, whereas “hotel is a public place, a room thereof occupied by a guest may not be – Information as to offence in question received by office of Directorate of Revenue Intelligence – said information not reduced into writing by officer who received it but by PW-1 who was later on conveyed the message by the said office – High Court setting aside conviction of respondent accused on basis that statutory requirements of Section 42 had not been complied with – Sustainability – <br>Held, in the instant case, statutory requirements under Section 42 had not been complied with – Hence, judgment of High Court does not suffer from any legal infirmity<br>– words and phrases – “Public place”.<br>5. Per contra, learned High Court Government Pleader vehemently contended that the seized article is opium as per the Forensic Science Laboratory report and the same is weighing 5 kgs. and therefore it is commercial quantity and as such, the offences alleged against the petitioner are grave in nature which not only violates the provisions of law but, has got a great impact on the society at large and therefore, gravity of the offence is so high which would per-se disentitle the petitioner from obtaining an order of grant of bail by resorting the special powers of this Court under Section 439 of Cr.P.C. He further argued that the petitioner being the resident of a remote place i.e., Atwan village, Una district of Himachal Pradesh, if he is let on bail, there is every possibility that he would flee away from justice and accordingly sought for dismissal of the bail petition.<br>6. Having heard the arguments of both sides and perused the materials available on record, it is seen that the head of the raid party on credible and definite information, intercepted the lorry bearing No.HP-19/B- 2187 near Vanamarpalli check post on Degalur to Aurad road. The raid party comprised of excise staff,  CPI, Deputy Superintendent of Excise and the complainant. On enquiry, the accused/petitioner did not satisfactorily answer the raid party resulting in grave suspicion to the raid party about the material in the lorry and they proceeded to search the lorry. On such search, raid party was able to seize five plastic bags and prima facie they found material in polythene bags is opium. They took out 100 grams from each of the bags as sample and seized the same and drafted a mahazar. The accused/petitioner was taken to custody by raid party and produced before the Special Judge. Thereafter, the petitioner was sent to judicial<span style=\"white-space:pre\">	</span>custody and from then<span style=\"white-space:pre\">	</span>onwards,<span style=\"white-space:pre\">	</span>the accused/petitioner is in custody.<br>7. The investigation agency has conducted a detailed investigation and filed charge sheet and the matter is now pending before the Special Judge for trial. What are the guidelines while dealing with a bail petition of an accused alleged of the offences punishable under NDPS Act is no longer res-integra.<br>13. Further, whether the accused/petitioner had conscious possession of the same or not cannot be decided by this Court at this stage by holding a mini trial. As such, the said ground cannot be countenanced by this Court to consider the request of the petitioner for grant of bail.<br>14.The third limb of the argument canvassed by the learned counsel for the petitioner is that the raid party did not comply the provisions of Section 50 of the NDPS Act before they proceeded to search the lorry. In order to appreciated the said submission, it is necessary to cull out Section 50 of the NDPS Act and which reads as under:<br>16. In the case on hand, there is no personal search of the accused petitioner as could be seen from contents of mahazar. As such, the ground that there is no compliance of section 50 would not be per se available to the petitioner in accepting his request for grant of bail.<br>17. In view of the above discussion, even though there cannot be any dispute as to the principles of law enunciated by the Hon\'ble Apex Court in the case of Directorate of Revenue (Supra) relied on by the learned counsel for the petitioner, this Court is of the opinion that the facts involved in the present case are clearly distinguishable from the facts found in the said case and accordingly, the same is of no avail for the accused/petitioner to obtain an order of bail.<br>The petition is dismissed.<br><br><br> <br><br></h4>', 'cc5f159ad2a39e4ed7bd52f0e7752a90.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-15', 1, '', '', '2021-04-08 22:17:13', '2021-04-08 22:51:43'),
(671, 'iklphPbALNZTbiJ9lGxvOIdLC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'National Courts can draw inspiration from International Conventions and Treaties, so long as they are not in conflict with the municipal law. Right not to be deported is ancillary to the right to reside in any part of India. Supreme Court 8 April 2021', '<h4>Mohammad Salimullah and another vs Union of India and others. </h4><h4>Writ Petition (Civil) 793 of 2017 decided on 8 April 2021</h4><h4>Chief Justice S.A. Bobde, Justice S.A. Bopanna and Justice V. Ramasubramanian</h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2017/27338/27338_2017_31_1502_27493_Judgement_08-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2017/27338/27338_2017_31_1502_27493_Judgement_08-Apr-2021.pdf</a></h4><h4>1. Pending disposal of their main writ petition praying for the issue of an appropriate   writ   directing   the   respondents   to  provide basic human amenities to the members of the Rohingya Community, who have taken refuge in India, the petitioners who claim to have registered themselves as refugees with the United Nations High Commission for refugees, have come up with the present interlocutory application seeking (i) the release of the detained Rohingya refugees; and (ii) a direction to the Union of India not to deport the Rohingya refugees who have been detained in the sub­jail in Jammu.</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">12. We have carefully considered the rival contentions.  There is no denial of   the   fact   that   India   is   not   a   signatory   to   the Refugee   Convention. Therefore,   serious   objections   are   raised,   whether   Article   51(c)   of   the Constitution  can be pressed into service, unless India is a party to or ratified a convention. But there is no doubt that the National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law.  Regarding the contention raised on behalf of the petitioners about the present state of affairs in Myanmar, we have to state that we cannot comment upon something happening in another country.<br>13. It is also true that the rights guaranteed under Articles 14 and 21 are available to all persons who may or may not be citizens. But the right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e).</b></h4>', 'fdd954c4c3d24a3e0dd079b0bb2881c9.PNG', 'f150e257f6961976a5174be8b0a497b7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-08', 1, '', '', '2021-04-09 01:22:38', '2021-04-09 01:23:14');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(672, 'Wr0DuEMXCFLAzR4bE24MJ3kXK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Judicial review. In tender matters, judicial review is equivalent to judicial restraint. What is reviewed is not the decision itself but the manner in which it was made. Supreme Court reiterates. 9 April 2021', '<h4>M/s. Utkal Suppliers vs M/s. Maa Kanak Durga Enterprises and others. </h4><h4>Civil Appeal 1517-1518 of 2017 decided on 9 April 2021. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/6309/6309_2021_33_1501_27427_Judgement_09-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/6309/6309_2021_33_1501_27427_Judgement_09-Apr-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 11. This Court has repeatedly held that judicial review in these matters is equivalent to judicial restraint in these matters. What is reviewed is not the decision itself but the manner in which it was made. The writ court does not have the expertise to correct such decisions by substituting its own decision for the decision of the authority. This has clearly been held in the celebrated case of Tata Cellular v. Union of India, (1994) 6 SCC 651, paragraph 94 of which states as follows:&nbsp;</h4><h4 style=\"margin-left: 25px;\">“94. The principles deducible from the above are:<br>(1) The modern trend points to judicial restraint in administrative action.<br>(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.<br>(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.<br>(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.<br>(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.<br>(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.\"&nbsp;</h4><h4>12. Equally, this Court in Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818 [“Afcons”], has laid down:&nbsp;</h4><h4 style=\"margin-left: 25px;\">“14. We must reiterate the words of caution that this Court has stated right from the time when Ramana Dayaram Shetty v. International Airport Authority of India [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489] was decided almost 40 years ago, namely, that the words used in the tender documents cannot be ignored or treated as redundant or superfluous — they must be given meaning and their necessary significance. In this context, the use of the word “metro” in Clause 4.2(a) of Section III of the bid documents and its connotation in ordinary parlance cannot be overlooked.<br>15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.”</h4><h4>This view of the law has been subsequently followed repeatedly – see Montecarlo Ltd. v. NTPC Ltd., (2016) 15 SCC 272 [at paragraph 25], Caretel Infotech Ltd. v. Hindustan Petroleum Corpn. Ltd., (2019) 14 SCC 81 [at paragraphs 38 and 39], and State of Madhya Pradesh v. U.P. State Bridge Corporation Ltd., 2020 SCC OnLine SC 1001 [at paragraphs 24 to 26].<br>13. In Galaxy Transport Agencies v. New J.K. Roadways, 2020 SCC OnLine SC 1035, after referring to paragraph 15 of Afcons (supra),<br>it was held:</h4><h4 style=\"margin-left: 25px;\">“15. In the judgment in Bharat Coking Coal Ltd. v. AMR Dev Prabha, 2020 SCC OnLine SC 335, under the heading<br>“Deference to authority’s interpretation”, this Court stated: “51. Lastly, we deem it necessary to deal with another fundamental problem. It is obvious that Respondent No. 1 seeks to only enforce terms of the NIT. Inherent in such exercise is interpretation of contractual terms. However, it must be noted that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes.\"</h4><h4 style=\"margin-left: 50px;\">52. In the present facts, it is clear that BCCL and India have laid recourse to Clauses of the NIT, whether it be to justify condonation of delay of Respondent No. 6 in submitting performance bank guarantees or their decision to resume auction on grounds of technical failure. BCCL having authored these documents, is better placed to appreciate their requirements and interpret them. (Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., (2016) 16 SCC 818)<br>53. The High Court ought to have deferred to this understanding, unless it was patently perverse or mala fide. Given how BCCL\'s interpretation of these clauses was plausible and not absurd, solely differences in opinion of contractual interpretation ought not to have been grounds for the High Court to come to a finding that the appellant committed illegality.”</h4><h4 style=\"margin-left: 25px;\">16. Further, in the recent judgment in Silppi Constructions Contractors v. Union of India, 2019 SCC OnLine SC 1133, this Court held as follows:</h4><h4 style=\"margin-left: 50px;\">“20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court\'s interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case.”</h4><h4 style=\"margin-left: 25px;\">17. In accordance with these judgments and noting that the interpretation of the tendering authority in this case cannot be said to be a perverse one, the Division Bench ought not to have interfered with it by giving its own interpretation and not giving proper credence to the word “both” appearing in Condition No. 31 of the N.I.T. For this reason, the Division Bench’s conclusion that JK Roadways was wrongly declared to be ineligible, is set aside.”</h4><div><br></div>', '709ac3a69526c258a31e93eb05fbfaff.PNG', '42979138a9d7fbdf88869cdc5b8b79ca.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-09', 1, '', '', '2021-04-09 22:24:23', '2021-04-09 22:33:52'),
(673, 'gsBtODuijmoM78HMV9r9kJSPN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Unlawful Activities Prevention Act. Grant of bail. It is the bounden duty of the Court to apply its mind to examine entire material on record to satisfy itself, whether a prima facie case is made out against the accused or not. Supreme Court. 9:4:2021', '<h4>Sudesh Kedia vs Union of India</h4><h4>Criminal Appeal 314-315 of 2021. Justice L.Nageswara Rao and Justice S.Ravindra Bhat </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/19589/19589_2020_38_1503_27432_Judgement_09-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/19589/19589_2020_38_1503_27432_Judgement_09-Apr-2021.pdf</a><br></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 8. According to the prosecution, the Appellant was providing financial support to TPC and the material gathered during investigation discloses that the Appellant has committed offences under Section 17 of the UA (P) Act. Huge amount of money that was paid by the Appellant to protect his business which amounts to raising funds to the terrorist organization. It was submitted that the judgment of the High Court does not warrant any interference as the Appellant was in constant touch with the members of the organization (TPC) which shows his involvement with the terrorist gang.</h4><h4> 9. Section 43-D (5) mandates that a person shall not be released on bail if the court is of the opinion that there are reasonable grounds for believing that the accusations made are prima facie true. <br>10. In National Investigation Agency v. Zahoor Ahmad Shah Watali (supra), this Court considered the parameters for exercise of the power under Section 43 (5) D, held as follows:</h4><h4 style=\"margin-left: 25px;\">“23. By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this Court, which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to the offences under the 1967 Act as well. Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused is “not guilty” of the alleged offence. There is a degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is “not guilty” of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is “prima facie” true. By its very nature, the expression “prima facie true” would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is “prima facie true”, as compared to the opinion of the accused “not guilty” of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act….”</h4><h4>11. While considering the grant of bail under Section 43 (5) D, it is the bounden duty of the Court to apply its mind to examine the entire material on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not. </h4><p><br></p>', '2d39a29fe0f80f26e9cf3e888397cb26.PNG', '1e99dbbf5b5897e3a1b92b00220c5249.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-09', 1, '', '', '2021-04-10 00:49:35', '2021-04-10 00:53:28'),
(674, '5wiZArQVMzLWSnxJqB7Zcs16s', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Compassionate appointment. Though civil death of an employee entitles dependents to claim compassionate appointment, the same is not a vested right that can be claimed after long lapse of time. Supreme Court. 9 April 2021', '<h4>Central Coalfields Limited vs Parden Oraon. </h4><h4>Civil Appeal 897 of 2021 decided on 9 April 2021.</h4><h4>Justice L. Nageswara Rao and Justice S. Ravindra Bhat</h4><h4><span style=\"font-size: 1.3125rem;\"><span style=\"background-color: rgb(255, 255, 0);\">Judgment Link</span>: https://main.sci.gov.in/supremecourt/2020/17121/17121_2020_38_1502_27432_Judgement_09-Apr-2021.pdf</span><br></h4><h4>8. The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis which arises due to the death of the sole breadwinner. The mere death of an employee in harness does not entitle his family to such source of livelihood. The authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis that the job is offered to the eligible member of the family (Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138). It was further asseverated in the said judgment that compassionate employment cannot be granted after a lapse of reasonable period as the consideration of such employment is not a vested right which can be exercised at any time in the future. It was further held that the object of compassionate appointment is to enable the family to get over the financial crisis that it faces at the time of the death of sole breadwinner, compassionate appointment cannot be claimed or offered after a signficant lapse of time and after the crisis is over.<br>9. We are in agreement with the High Court that the reasons given by the employer for denying compassionate appointment to the Respondent’s son are not justified. There is no bar in the National Coal Wage Agreement for appointment of the son of an employee who has suffered civil death. In addition, merely because the respondent is working, her son cannot be denied compassionate appointment as per the relevant clauses of the National Coal Wage Agreement. However, the Respondent’s husband is missing since 2002. Two sons of the Respondent who are the dependents of her husband as per the records, are also shown as dependents of the Respondent. It cannot be said that there was any financial crisis created immediately after Respondent’s husband went missing in view of the employment of the Respondent. Though the reasons given by the employer to deny the relief sought by the Respondent are not sustainable, we are convinced that the Respondent’s son cannot be given compassionate appointment at this point of time. The application for compassionate appointment of the son was filed by the Respondent in the year 2013 which is more than 10 years after the Respondent’s husband had gone missing. As the object of compassionate appointment is for providing immediate succour to the family of a deceased employee, the Respondent’s son is not entitled for compassionate appointment after the passage of a long period of time since his father has gone missing.<br>10. For the aforementioned reasons, we allow the appeal and set aside the judgment of the High Court.<br><br></h4>', '279b7858d79bacd3d38402a7f924e9ab.jpg', '8bef573047c2b7e114fd04e0acf2036c.jpg', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-09', 1, '', '', '2021-04-10 01:12:48', '2021-04-10 01:16:30'),
(675, 'OBx4qPWGc0PRDgZj87XAHUp3k', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Specific Relief Act. A suit for specific performance cannot be dismissed on sole ground of delay unless plaintiff is at fault for delay.  Once suit is filed, any delay as a result of Court process cannot be put against plaintiff. Supreme Court. 9:4:2021', '<h4>A.R.Madana Gopal vs M/s. Ramnath Publications Pvt Ltd and another. </h4><h4>Civil Appeal 3523 - 3526 of 2010 decided on 9 April 2021. </h4><h4>Justice L. Nageswara Rao and Justice S. Ravindra Bhat. </h4><h4>Judgment Link: https://main.sci.gov.in/supremecourt/2008/27753/27753_2008_38_1501_27432_Judgement_09-Apr-2021.pdf</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: <b>11. </b>There is no dispute about the agreements dated 20.03.1991 and the MOUs between the parties. It is also a fact that Income Tax Department wanted to compulsorily acquire the property, due to which Writ Petitions were filed which were disposed of on 11.09.1998. Writ Appeals filed by the Department were pending on the date of filing of the suit. The relevant clause in the MOU is that the Appellants shall pay the balance sale consideration at the time of registration of sale deeds immediately after the disposal of the Writ Petition. <b style=\"background-color: rgb(255, 255, 0);\">The Division Bench of the High Court in the impugned judgment held that the Appellants were not ready and willing to perform their part of the agreement by not depositing the balance sale consideration immediately after the disposal of the Writ Petition. The High Court lost sight of the words “at the time of registration of sale” in clause 3 of MOUs. A plain reading of clause 3 in the MOU’s would show that the Appellants were required to pay the balance sale consideration at the time of the registration of the sale deeds immediately when the Writ Petition is disposed of upholding the sale agreement. The High Court further found fault with the Appellants in waiting for 2 years and 3 months after the disposal of the Writ Petition for filing the suits. The High Court refused to grant relief of specific performance to the Appellants on the ground that there was total inaction on the part of the Appellants for more than two years after the parties entered into the MOU. Though, it was pleaded by the Appellants in the suits that they were always ready and willing to perform their part of the agreement, the High Court was of the opinion that they did not prove the same as they did not pay the balance sale consideration immediately after the disposal of the Writ petition. We find force in the submission made on behalf of the Appellants that payment of balance consideration has to be done only at the time of the registration of the sale deeds. Admittedly, no steps were taken for the registration of the sale deeds. The finding of the Division Bench of the High Court that the Appellants were not ready and willing to perform their part of the contract by not paying the balance consideration immediately after disposal of the Writ Petition is erroneous.</b><br><b>12. </b>The Division Bench of the High Court agreed with the contention of the Appellants that mere fixation of time within which the contract was to be performed does not make the stipulation as to time being of the essence of the contract. However, the Appellants were found guilty of total inaction on their part. The sole ground for denial of relief to the Appellants is non payment of balance consideration immediately after disposal of the Writ Petition. The said conclusion is the result of a faulty interpretation of clause 3 of the MOUs as stated earlier.<br><b>13.</b> The High Court highlighted the conduct of the Appellants to deny relief. The failure of the Appellants in not pleading and proving how they were put in possession of a part of the property, the frivolous complaint about vacant possession not being given by the Respondents and the attempt made by the Appellants to take forcible possession of a part of the property were commented<br>upon to hold that the Appellants were disentitled to equitable relief. There is not dispute that the Appellants were in possession of the first floor of the property. Details about the manner in&nbsp;<span style=\"text-align: justify; font-size: 1.3125rem;\">which possession was given to the Appellants not being pleaded&nbsp;</span><span style=\"text-align: justify; font-size: 1.3125rem;\">cannot be a ground to deny relief. The contention of the&nbsp;</span><span style=\"text-align: justify; font-size: 1.3125rem;\">Appellants before the High Court was that the Respondents should&nbsp;</span><span style=\"text-align: justify; font-size: 1.3125rem;\">demolish the super structure and hand over vacant possession of&nbsp;</span><span style=\"text-align: justify; font-size: 1.3125rem;\">the land. The High Court observed that the Appellants who were in&nbsp;</span><span style=\"text-align: justify; font-size: 1.3125rem;\">possession of a part of the property cannot make such an inane&nbsp;</span><span style=\"font-size: 1.3125rem;\">plea. According to the terms of the agreement, the Respondents&nbsp;</span><span style=\"font-size: 1.3125rem;\">had to hand over vacant possession of the land. The Appellants&nbsp;</span><span style=\"font-size: 1.3125rem;\">submitted that no steps were taken to demolish the structure to</span><span style=\"font-size: 1.3125rem;\">highlight the inaction on the part of the Respondents. By no&nbsp;</span><span style=\"font-size: 1.3125rem;\">stretch of imagination, can it be said that the Appellants can be&nbsp;</span><span style=\"font-size: 1.3125rem;\">denied relief on this account. Yet another reason given by the&nbsp;</span><span style=\"font-size: 1.3125rem;\">Division Bench of the High Court is that the Appellants made an attempt to trespass into the ground floor where the Indian Bank&nbsp;</span><span style=\"font-size: 1.3125rem;\">was a tenant. The contention of the Appellants is that the Indian&nbsp;</span><span style=\"font-size: 1.3125rem;\">Bank was not a tenant in the ground floor but only a creditor of&nbsp;</span><span style=\"font-size: 1.3125rem;\">the Respondents. Admittedly, the Indian Bank sued the&nbsp;</span><span style=\"font-size: 1.3125rem;\">Respondents for recovery of the loan by the sale of the&nbsp;</span><span style=\"font-size: 1.3125rem;\">hypothecated goods stored in the ground floor. It was also&nbsp;</span><span style=\"font-size: 1.3125rem;\">contended on behalf of the Appellants that a police complaint was&nbsp;</span><span style=\"font-size: 1.3125rem;\">preferred by them against the Respondents for causing&nbsp;</span><span style=\"font-size: 1.3125rem;\">disturbance to their possession. The Appellants cannot be said to&nbsp;</span>be disentitled for a relief of specific performance on the ground that their conduct on this count is blameworthy.<br><b style=\"background-color: rgb(255, 255, 0);\">14. A suit for specific performance cannot be dismissed on the sole ground of delay or laches. However, an exception to this rule is where an immovable property is to be sold within a certain period, time being of the essence, and it is not found that owing to some default on the part of the plaintiff, the sale could not take place within the stipulated time.</b> <b style=\"background-color: rgb(255, 255, 0);\">Once a suit for specific performance has been filed, any delay as a result of the Court process cannot be put against the plaintiff as a matter of law in decreeing specific performance. </b>However, it is within the discretion of the Court, regard being had to the facts of each case, as to whether some additional amount ought or ought not to be paid by the plaintiff once a decree of specific performance is passed in its favour even at the appellate stage. We are in agreement with the Appellants that they did not file the civil suits immediately after the disposal of the Writ Petition in 1998 due to the pendency of Writ Appeals. Escalation of prices cannot be the sole ground to deny specific performance. We are of the considered view that the Respondents are not entitled for any additional amount as 90 per cent of the sale consideration was paid by the Appellants before 1994. It is not necessary for us to deal with the submission of the Appellants regarding the applicability of the amendment to the Specific Relief Act, 1963, in view of the conclusion that we have reached in favour of the Appellants.<br><b>15.</b> For the aforementioned reasons, the judgment of the Division Bench of the High Court is set aside and the judgment and decree passed by the learned Single Judge is restored. </h4><h4>The Appeals are allowed, accordingly.<br><br><br></h4>', '7ac0bff7c5e23f062e221c4a9ba61a99.PNG', '607fc98541e8b95cdb1afce5c2141b61.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-09', 1, '', '', '2021-04-10 01:39:36', '2021-04-10 01:43:20');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(4514, 'm9KoL6dbXyEmTx8VWeIGsrtNq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Special Court established under Section 435 of the Companies Act, 2013, cannot take cognizance of an offence committed under the provisions of the Companies Act, 1956. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Srividya C G Vs Serious Fraud Investigation Office.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 4380 of 2018 decided on 15 April 2024.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The proceedings before the LIX Additional City Civil and Sessions Judge, Special Court, under the Companies Act, 2013, Bengaluru City, for offenses punishable under Sections 36 read with Section 448 and 447 of the Companies Act, 2013, and Section 68 read with Section 628 of the Companies Act, 1956, are challenged in these petitions. Hence, they are collectively addressed and resolved through this common order.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The Serious Fraud Investigation Officer (SFIO) filed a complaint under Section 439 read with Section 212 of the Act, 2013, and under Section 621 read with Sections 235 and 624 of the Act, 1956, along with Section 193 of the Criminal Procedure Code.&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The prosecution\'s case is as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>a) The Ministry of Corporate Affairs, based on the Registrar of Companies\' report dated 27.05.2015 highlighting irregularities by Kingfisher Airlines Limited, assigned the investigation to SFIO under Section 212(1)(c) of the Act, 2013. SFIO submitted a report dated 30.08.2017 under Section 212(12) of the Act, 2013.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>b) Kingfisher Airlines Limited (KFAL) was established in 2004under the Companies Act, 1956, under the control of accused No.5 (Mr. Vijay Mallya), primarily engaged in domestic civil aviation. The Government of India introduced the 5/20 Rules, requiring Airlines Companies to have five years of domestic commercial operation and a fleet of 20 aircraft to fly overseas.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>c) KFAL, not meeting the requirements, aimed to acquire Deccan Aviation Limited (DAL), controlled by accused No.10. Accused No.5, recognizing the potential capital gain from the acquisition of DAL and considering KFAL\'s existing loss of Rs.1,234 crore, collaborated with other accused to cheat, produce fraudulent documents, cause loss to&nbsp;shareholders and stakeholders of DAL, and violate various provisions of the Companies Act and the Income Tax Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>d) The process involved three stages: pre-merger, merger, and post-merger.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>e) In the pre-merger stage, the accused decided on an artificial de-merger, creating two non-existing undertakings to fulfill the condition for demerger. f) In the merger stage, a scheme of arrangement under Sections 391(2), 394 of the Act, 1956, was presented to de-merge airline business from KFAL and merge it with DAL. The fabricated documents aimed to avoid taxation of capital gain.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>g) Post-merger, KFAL incurred losses, which were not transferred to the accused No.2 - Company, but retained by KFAL, renamed as Kingfisher Training and Aviation Services Limited (accused No.1). This was done to portray the accused No.2 - Company as a profitable venture to secure additional finance.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>h) After the merger, accused No.5 and his associates manipulated asset valuation and goodwill to control the allocation of shares.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i) In the post-merger stage, accused No.5 gained control of DAL, renamed as KFAL, allowing him to secure additional finance based on the brand value of the resultant entity.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. After reviewing the respective submissions made by the learned counsel for the parties, the crucial points that arise for consideration are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i) Whether the learned Judge of the Special Court established under Section 435 of the Companies Act, 2013, can take cognizance of an offence committed under the provisions of the Act, 1956.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ii) Whether the learned Judge of the Special Court has complied with Sections 202 and 204 of the Cr.PC before issuing the process?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>iii) Whether the scheme of arrangement under Sections 391 to 394 of the Act, 1956, approved by this Court and alleged to have been obtained by fraud, can be reopened by filing a complaint before the Special Court?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>iv) Whether the allegations against Accused herein constitutes an offence under Section 68 of Act, 1956?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ON POINT (i):</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. Section 2(11) of the Act, 1956, defines the term “Court” and means, with respect to any offence under this Act, the Court of a Magistrate of First Class having jurisdiction to try such an offence.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. Section 68 of the Act, 2013, deals with the penalty for fraudulently inducing persons to invest money, and states that any person who, either by knowingly or recklessly making any statement, promise, or forecast which is false, deceptive, or misleading, or by any dishonest concealment of material facts, induces or attempts to induce&nbsp;another person to enter into, or to offer to enter into (a) any agreement for or with a view to acquiring, disposing of, subscribing for, or underwriting shares or debentures (b) any agreement, the purpose or pretended purpose of which is to secure a profit to any of the parties from the yield of shares or by reference to fluctuations in the value of shares or debentures shall be punishable with imprisonment for a term which extends to five years.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. Section 621 states that the offence against this Act to be cognizable only on a complaint by Registrar, shareholder, or government, the cognizance of which can be taken only upon a complaint in writing of the Registrar, shareholder of a company, or by a person duly authorized by the Central Government.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. Section 622 states that no court inferior to that of a magistrate of first class shall try an offence against this Act and Section 624 states that every offence against this Act shall be deemed to be noncognizable within the meaning of the Cr.PC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. Section 2(29) of the Act, 2013, defines the word “Court” and it means the Court of Sessions having jurisdiction to try any offence under this Act or under any previous Companies law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. Section 212 of Act, 2013 deals with the investigation into the affairs of a company by SFIO. Sub-Section (14) states that on receipt of the investigation report, the Central Government after examination of the report directs the SFIO to initiate prosecution against the company or&nbsp;ts officer or employees who are or have been in employment of the company or any other person directly or indirectly connected with the affairs of the company.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. Sub-Section (15) states that notwithstanding anything contained in this Act or in any other law for the time being in force, the investigation report filed with the Special Court for framing of charges shall be deemed to be a report filed by a police officer under Section 173 of Cr.PC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. Sub-Section (16) states that notwithstanding anything contained within this Act, any investigation or other action taken or initiated by SFIO under the provisions of Companies Act, 1956, shall continue to be proceeded with under that Act as if this Act had not been passed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. Section 435 of the Act, 2013, provides for the establishment of Special Courts and the unamended Section which was substituted with effect from 7.5.2018, provides for the speedy trial of offences punishable under this Act with imprisonment of two years or more.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. Sub-Section (2) states that a Special Court shall consist of a single judge who shall be appointed by the Central Government with&nbsp;the concurrence of the Chief Justice of the High Court within whose jurisdiction the judge to be appointed is working.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. Section 439 of the Act, 2013 states that every offence under this Act except the offences referred to in sub-section (6) of Section 212 shall be deemed to be non-cognizable within the meaning of Cr.PC. Sub-Section 2 states that no court shall take cognizance of any offence of this Act alleged to have been committed by any company or any officer thereof except on the complaint in writing of the Registrar, a shareholder, or a person authorized by the Central Court on that behalf.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>31. Section 465 of the Act, 2013 deals with the repeal of certain enactments and savings and clause (h) to Sub-Section (2) states that any prosecution instituted under the repealed enactment and pending immediately before the commencement of this Act before any Court shall, subject to the provisions of this Act, continue to be heard and disposed of by the said Court.&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>33. The Hon’ble Supreme Court, in the case of SEBI vs. Classic Credit Ltd. (supra), has ruled that procedural amendments are presumed to be retrospective in nature unless the amending statute expressly or impliedly provides otherwise. It also held that generally, a&nbsp;change of forum for trial is procedural and presumed to be retrospective unless the amending statute specifies otherwise. Therefore, the alteration of the forum has been considered procedural, and there is no hesitation in accepting the contention advanced on behalf of SEBI that the change of forum being procedural, the amendment of the forum would operate retrospectively, irrespective of whether the offence allegedly committed by the accused was prior to the amendment.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. In the case of Neena Aneja (supra), reiterating the position taken in the case of New Assurance Company Limited vs. Shanthi Mishra, the Apex Court ruled that if by express words the new forum is made available only to causes of action arising after the creation of the forum, then the retrospective operation of the law is taken away. Otherwise, the general rule is to make it retrospective.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>35. In the case of Nar Bahaddur Bhandari, the Supreme Court ruled that the Special Court constituted under Section 3 of the Prevention of Corruption Act, 1988, has competence to try the offences under Act, 1947, since the said Act is repealed under Section 30(1) of the Act, 1988. Normally, Section 6 of the General Clauses Act would come into play and enable the continuation of the proceedings, including the investigation, as if the repealing Act had not been passed. However, this position will not be obtained if a different intention appears in the repealing Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>36. In the case of Kapur Chand Pokhraj, the Supreme Court held that the Bombay Sales Tax Act, 1953 (repealing Sales Act), did not make any change either in the offence or in the procedure prescribed to prosecute for that offence. It expressly saved the offence committed&nbsp;under the repealed Sales Act. Therefore, the intention can be legitimately imputed to the legislature that the procedure prescribed under the repealing Sales Act should be followed, even in respect of the offences committed under the repealed Sales Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>37. In the case of Kailash Nath (supra), it was ruled that if the initial action is not in consonance with the law, all subsequent and consequential proceedings would fall through because illegality strikes at the root of the complaint. Therefore, the entire complaint and all actions which followed it are liable to be quashed and set aside.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>42. Section 465 of the Act, 2013, which deals with the repeal of certain enactments and savings, was given effect from 30.1.2019, vide notification dated 31.1.2019. The cognizance of the offences under Section 68 of the Act, 1956, was taken on 28.12.2017 by the Special Court. Therefore, as on the date when the cognizance was taken, the Act, 1956, was in force, and the cognizance of the offence under Section 68 of the Act, 1956, could have been taken only by the Judicial Magistrate First Class, as stated under Section 622 of the Act, 1956.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>44. Court of Sessions, as defined under Section 9 of Cr.PC, means a Court established by the State Government and presided by a Judge to be appointed by the High Court. Therefore, the Special Court established under Section 435 cannot be equated with the Court established under Section 9 of Cr.PC, since the power to establish and appoint a Presiding Officer is vested with the State Government insofar as it relates to the Sessions Court under Section 9 of Cr.PC, and with the Central Government insofar as it relates to the Special Court under Section 435 of the Act, 2013.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>45. The Special Court established under Section 435 is vested with the jurisdiction to try the offences under this Act, i.e., Act, 2013, and the jurisdiction is not extended to the offences under the Act, 1956. The&nbsp;Special Court established is made available only to try the offences under the Act, 2013, and therefore, the jurisdiction of the Special Court cannot be extended retrospectively to try the offences under the Act, 1956, and the jurisdiction of the Special Court is restricted to the Companies Act, 2013, by deliberately omitting the usage of the expression \'previous Company Law\' in Section 435(1), as opposed to the proviso to Section 435(1), which states that all other offences shall be tried, as the case may be, by the Magistrate to try any offence under this Act or under any previous Company Law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>46. The cognizance of the offence under Section 68 of the Act, 1956, can be taken only on a complaint in writing by the person/s as enumerated in Section 621 of the Act, 1956, and the jurisdiction to take cognizance was vested with the Magistrate, as stated under Section 622 of the Act, 1956.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>47. In view of the specific provisions contained in the Act, 1956, and the Act, 2013, the contention of the SFIO that the change of the forum of trial is only procedural, and as such, the cognizance taken by the Special Court does not stand vitiated for want of authority is unacceptable.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ON POINT (ii):</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>51. In this instance, the central government authorized the officer to file a complaint before the special court. Therefore, since the complaint was filed by a public servant duly authorized by the central government, the requirement of recording the statement of the public servant and conducting an investigation as contemplated under Section 202, sub-clause 1, does not arise. Consequently, the submission of the petitioners that the order issuing process is not preceded by an inquiry as contemplated under Section 202 of the CRPC stands vitiated is without any substance.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>52. Section 212 clause 15 states that notwithstanding anything contained in this Act or in any other law for the time being in force, the investigation report filed with the Special Court for framing of charges shall be deemed to be a report filed by a police officer under section 173 of the Code of Criminal Procedure, 1973. The said provision clearly states that the investigation report submitted by the SFIO shall be deemed to be a report filed by a police officer under Section 173 of the CRPC, solely for the purpose of framing charges and not for the purpose of taking cognizance and issuing process thereafter. Therefore, it cannot be construed that the learned judge of this special court can dispense with forming an opinion before the issuing process.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>54. In this case, the learned judge of the special court failed to form an opinion before issuing the process to determine whether there is a prima facie case to proceed against the accused. Consequently, the order issuing the process violates Section 204 of the Cr.PC. Additionally, the learned judge\'s decision to take cognizance of the offences under the Act 2013 also indicates a lack of consideration of the complaint&nbsp;averments and materials presented before him. Thus, the order passed by the Learned Judge issuing the process is rendered invalid.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ON POINT (iii):</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>55. Chapter 4 of the Companies Act 1956 covers Arbitrations, Compromises, Arrangements, and Reconstructions. Section 391 pertains to the Authority to Settle or Make Agreements with Creditors and Members. Section 392 concerns the Authority of the Tribunal to Enforce Agreements and Arrangements. Section 393 provides Details Regarding Agreements or Arrangements with Creditors and Members. Section 394 outlines Provisions to Aid in the Reconstruction and Merger of Companies.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>59. While sanctioning the scheme of arrangement, this court accepted the valuation of the business assessed by an independent&nbsp;body. Additionally, the shareholders and unsecured creditors approved the scheme by requisite majority. Therefore, the merger process alleged to have been obtained fraudulently cannot be reopened by launching criminal prosecution. If the merger process is indeed obtained fraudulently, the aggrieved person or complainant has the option to approach the court in which the merger process was obtained fraudulently or challenge the scheme of arrangement sanctioned by this court before the appropriate forum. In the absence of any material to substantiate that the scheme of arrangement was obtained by suppression of material facts, except stating that the projection used for share swap ratio was skewed in favor of shareholders of erstwhile KFAL and only two methods which were in favor of erstwhile KFAL were used, the initiation of criminal prosecution against the petitioners accused will be an abuse of the process of the law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>61. The alleged offenses were purportedly committed during the period when the Companies Act of 1956 was in effect. The initiation of legal proceedings under Section 36, in conjunction with Sections 447 and 448 of the 2013 Act, lacks legal authority. The petitioners cannot be prosecuted for actions that were not deemed punishable under the provisions of the 1956 Act. This purported action violates Article 20, SubClause 1 of the Constitution of India, which safeguards against retrospective criminalization.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>63. The present case, admittedly is a complaint case, and the report submitted by the SFIO would be deemed to be a report filed by the Police under Section 173 Cr.P.C only for the purpose of framing of charge. Therefore, the learned Judge of the Special Court, contrary to the guidelines issued by the Apex Court, issued an arrest warrant without issuing summons at the first instance to secure the presence of the accused.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>64. The offence u/s 68 of act, 1956 can be invoked against any person who meets the criteria outlined in the provision. It does not specifically limit the application of the provisions to directors or officers of the company. Any individual who knowingly or recklessly makes false statements, promises, or forecasts, or conceals material facts to induce others to invest in shares or debentures can be held liable under this section. Therefore, it applies to any person involved in such fraudulent&nbsp;activities, regardless of their position within the company, and it can be extended to persons rendering professional service to the company. The phrase “Any Person” cannot be restricted to “Officer who is in default” as defined in section 5 of the Act, 1956, and it extends to professionals serving the company.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>65. The professionals providing services to the company are not liable under Section 68 of the Companies Act, 1956, if their opinions are within their commercial discretion. They can only face prosecution if they collude with an officer who is in default as stated under section 5 of the Act, 1956 to fraudulently induce shareholders into agreements.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>66. From the aforesaid discussion, it is evident that the cognizance taken by the learned judge of the special court, established under the Companies Act of 2013, lacks legal authority. Furthermore, since this court has already approved the scheme of arrangement, the matter of whether the merger process was tainted by fraud cannot be revisited through the initiation of criminal prosecution. Therefore, allowing the criminal proceedings to proceed would constitute an abuse of legal process.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i) The Writ Petitions are allowed;</b></p>', 'de8680c9217d89f69b516a6fa45b378b.jpeg', '4cc96b321c8c2e1ecfefc7c4f96b804c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2024-05-06', 1, '', '', '2024-05-06 12:40:31', '2024-05-06 12:40:31'),
(678, 'Gh5utSCuXgY73R7Wyjo3a6p4I', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Partition. Property purchased in the name of minor is his absolute property unless there is evidence to show it was also joint family property- (see the Note). Karnataka High Court. 11 October 2007 ', '<h4>Mallikarjuna v. Mareppa </h4><h4>Regular Second Appeal 1083 of 2002 decided on 11 October 2007.</h4><h4>Justice V. Jagannathan. <br>Reported in: 2007 SCC OnLine Kar 485 : ILR 2007 KAR 5357 : (2008) 2 Kant LJ 227 : (2008) 1 AIR Kant R 216 : (2008) 1 ICC 803 : (2008) 68 AIC 729. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgments/bitstream/123456789/115409/1/RSA1083-02-11-10-2007.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgments/bitstream/123456789/115409/1/RSA1083-02-11-10-2007.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 12. <b style=\"background-color: rgb(255, 255, 0);\">Once the property has been held to be the property of the appellant/plaintiff, the question of the suit property remaining as the ancestral property of the first defendant does not arise.</b> Apart from this, <b style=\"background-color: rgb(255, 255, 0);\">there is no evidence placed before the trial Court to show that the suit property partook the nature of ancestral property of the first defendant.</b> In fact, the first defendant has not even contested the matter to throw light on this aspect. O<b style=\"background-color: rgb(255, 255, 0);\">nce the property ceases to be the ancestral property, the question of suit property being sold for legal necessity or for benefit of the minor also looses its significance.</b> Apart from this, there is no evidence to indicate that the suit property  was sold for the benefit of the minor. </h4><h4><b style=\"background-color: rgb(255, 255, 0);\">NOTE:</b> Where the Karta purchases property in the name of minor son from out of joint family funds, the property also becomes joint family property. However, if he purchases, for example from out of his earnings and not from joint family nucleus, the property will become the absolute property of the minor. Thereafter, even the karta cannot sell it without court permission. However, where there is evidence to show that the property was purchased in the name of minor son from out of joint family income, then the property will be treated as joint family property available for partition. In this regard please see the following;</h4><h4><a href=\"https://dakshalegal.com/judgements/actionRead/V4EcixPmhJzav9zwWV7RPtf5o\" target=\"_blank\">https://dakshalegal.com/judgements/actionRead/V4EcixPmhJzav9zwWV7RPtf5o</a></h4><h4><br></h4><h4>  </h4><p><br></p>', '619565de87e543742e00ca4ab0b459c9.PNG', '97a32e0737e90416d7f2c7c1f9a4ead6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2007-10-11', 1, '', '', '2021-04-11 18:20:27', '2021-04-11 18:29:04'),
(679, 'T8Q94jSwwJbx3bLRePpdJzIVG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Evidence Act 1872. Date of birth. Horoscope is a very weak piece of evidence. Statement contained in the admission of register of schools is more authentic. Supreme Court. 14 March 2005', '<h4>State of Punjab vs Mohinder Singh. </h4><h4>Civil Appeal 1730 of 2005 decided on 14 March 2005. </h4><h4>Justice Arijit Pasayat and Justice S.H. Kapadia&nbsp;</h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/jonew/judis/26863.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/26863.pdf</a><br>Reported in&nbsp;(2005) 3 SCC 702<br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 10. In terms of Section 32 clause (5) of the Evidence Act, 1872 (in short “the Evidence Act”), the evidentiary value of a horoscope has to be&nbsp; considered. No evidence was led by the respondent to prove authenticity of the same. In any event the same was not to be given primacy over the school-leaving certificate. It was not shown as to how the entry therein was wrong. The onus was on the respondent to prove that the same was not correct, which was not discharged. Two photostat copies of the school-leaving certificate were produced before the enquiry officer. He compared them and found that even to the naked eye change of figure “31” to “34” was visible. Interestingly in the said copies the date of birth was indicated even after the change to be 25-11-1934 and not 1-10-1934 as claimed.<br>11. Horoscope is a very weak piece of material to prove age of a person. In most cases, the maker of it may not be available to prove that it was made immediately after the birth. A heavy onus lies on the person who wants to press it into service to prove its authenticity. In fact, a horoscope to be treated as evidence in terms of Section 32 clause (5) must be proved to have been made by a person having special means of knowledge as regards authenticity of a date, time, etc. mentioned therein. In that context horoscopes have been held to be inadmissible in proof of age. (See Ramnarain Kallia v. Monee Bibee1, Biro v. Atma Ram2 and Satish Chandra Mukhopadhya v. Mohendra Lal Pathak3.)<br>12. On the contrary, the statement contained in the admission register of the school as to the age of an individual on information supplied to the school authorities by the father, guardian or a close relative is more authentic evidence under Section 32 clause (5) unless it is established by unimpeachable contrary material to show that it is inherently improbable. The time of one’s birth relates to the commencement of one’s relationship by blood and a statement therefore of one’s age made by a person having special means of knowledge, relates to the existence of such relationship as that referred to in Section 32 clause (5).<br>13. As observed by this Court in Umesh Chandra v. State of Rajasthan4 ordinarily oral evidence can hardly be useful to determine the correct age of a person, and the question, therefore, would largely depend on the documents and the nature of their authenticity. Oral evidence may have utility if no documentary evidence is forthcoming. Even the horoscope cannot be reliable because it can be prepared at any time to suit the needs of a particular situation. Entries in the school register and admission form regarding date of birth constitute good proof of age. There is no legal requirement that the public or other official book should be kept only by a public officer and all that is required under Section 35 of the Evidence Act is that it should be regularly kept in discharge of official duty. In the instant case the entries in the school register were made ante litem motam.<br>14. Therefore, the school records have more probative value than a horoscope. Where no other material is available, the horoscope may be considered but subject to its authenticity being established. These aspects were not considered by the first appellate court and the High Court.</h4><h4>1. ILR (1883) 9 Cal 613<br>2. AIR 1937 PC 101 : 1937 All LJ 462<br>3. ILR 1997 Cal 849<br>4. (1982) 2 SCC 202 : 1982 SCC (L&amp;S) 200 : 1982 SCC (Cri) 396</h4><p><br></p><p><br></p><p><br></p>', '4a47342392a4a4e6bbbcbdf97fdd7306.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2005-03-14', 1, '', '', '2021-04-11 18:52:01', '2021-04-11 18:52:01');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(680, 'jSJRasXOLS7zAuImYLm6m17ox', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Evidence Act. Section 65. A photocopy/Xerox copy of original document can be produced and marked as secondary evidence only on laying foundation for producing the same. Karnataka High Court. 28 June 2010', '<h4>B.N. Sampath Kumar vs Rahimunissa Begum<span style=\"font-size: 1.3125rem;\"> </span></h4><h4>Writ Petition No. 25912 of 2009 [GM-CPC]</h4><h4>Decided on 28 June 2010. Justice Ashok B Hinchigeri. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgments/bitstream/123456789/418757/1/WP25912-09-28-06-2010.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgments/bitstream/123456789/418757/1/WP25912-09-28-06-2010.pdf</a></h4><h4>Reported in 2010 SCC OnLine Kar 5271:(2010) 4 KCCR 2757:(2010) 4 AIR Kant R 316<span style=\"white-space:pre\">	</span>J 1 <br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 2. The facts of the case in brief are that the petitioner filed the suit against the respondent seeking the relief of specific performance of the agreement, dated 19.6.1989. In the said suit proceedings, the petitioner produced the xerox copy of the affidavit stating that it is by way of an agreement of sale executed by one Abdul Kareem Sab in favour of the petitioner. On the Trial Court refusing the permission to the petitioner to mark the said xerox copy as an exhibit, this petition is filed.<br>3. Ms. Ujwala, the learned Counsel appearing for M/s. Kumar and Kumar for the petitioner submits that the original affidavit which itself is by way of sale agreement, was in the possession of the said Abdul Kareem Sab. The petitioner retained the xerox copy of the said affidavit. She submits that the Trial Court has fallen into an error by refusing to admit the document in evidence on the ground that its executant is not alive. She further submits that the petitioner has complied with the requirement of law by putting the respondent on notice in the form prescribed by Order 11, Rule 16 of C.P.C. Only on the failure of the respondent to produce the original affidavit, the petitioner requested the Trial Court to permit him to lead the secondary evidence. She submits that the secondary evidence can be marked subject to the objections of the opposite party. Therefore, she submits that there is no justification for turning down the petitioner\'s request doubting the genuineness of the xerox copy. In support of her submission she relies on this Court\'s decision in the case of Gafarsab @ Sati Gafar Sab v. Ameer Ahamed, reported in ILR 2006 KAR 169. The relevant paragraphs of the said decision are extracted hereinbelow:—<br></h4><h4 style=\"margin-left: 25px;\">“5. Chapter V of the Indian Evidence Act, 1872 (for short “the Act”) deals with documentary evidence. Section 61 of the Act deals with proof of contents of documents. The contents of documents may be proved either by primary or secondary evidence. Primary evidence means the document itself produced for inspection of the Court whereas the secondary evidence means and includes certified copies of public documents, copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies, copies made from or compared with the original, counterparts of documents as against the parties who did not execute them and oral accounts of the contents of a documents given by some person who has himself seen it. It is clear as a rule documents must be proved by primary evidence. If the primary evidence is not available for the reasons set out in Section 65 of the Act only then secondary evidence is admissible. Therefore, before secondary evidence is adduced, a proper foundation is to be laid for not producing the primary evidence. Only after the non-production of the primary evidence is satisfactorily accounted for, the secondary evidence would be permitted to be adduced.<br>a) 6. A party to the proceedings is not expected to file any application requesting the Court to permit him to lead the secondary evidence. All that is expected of him is to step into the witness-box and lead evidence setting out the circumstances under which he is unable to produce the primary evidence. If the Court is satisfied from such evidence that a case is made out for production of secondary evidence, it can permit the party to adduce secondary evidence subject to Sections 63 and 65 of the Act. However, when such permission is granted to the party by the Court to lead secondary evidence, it is open to the opposite party to object to the production of such evidence in which event the Court has to mark the document subject to the objections and decide the objections at the time of final disposal of the suit on merits. In the event the objection is upheld the said documents and the evidence adduced in respect of the said documents may be ignored while deciding the case on merits. If the objection is over-ruled, the said documents and the evidence given in respect of the said documents can be taken into consideration while disposing of the case on merits. But, on the ground that the party who proposes to adduce secondary evidence has not disclosed from where, which authority he got the documents and whether the said documents are coming from a proper custody, the document cannot be received to be received in evidence. It is totally irrelevant consideration at the time of admitting the documents in evidence. In that view of the matter, though the application filed by the defendant is totally misconceived, the reasoning given by the learned Trial Judge for no accepting the secondary evidence is also illegal. Hence, the aforesaid findings require to be quashed, reserving the liberty to the petitioner-defendant to lay a proper foundation by satisfactorily explaining the reasons for not producing the primary evidence and thereafter he is at liberty to produce the secondary evidence which the Court may receive subject to the objections of the opposite party and decide the admissibility of the documents at the time of final disposal of the suit on merits………….”</h4><h4>4. Nextly, the learned Counsel relies on the Apex Court\'s decision in the case of Nawab Singh v. Inderjit Kaur, reported in (1999) 4 SCC 413:AIR 1999 SC 1668. The relevant paragraph of the said decision is extracted herein below:</h4><h4 style=\"margin-left: 25px;\">“3. Having heard the learned Counsel for the parties, we are of the opinion that the Trial Court was not justified in rejecting the prayer seeking leave of the Court for production of secondary evidence. The prayer has been rejected mainly on the ground that the copy of the rent note sought to be produced by the appellant was of doubtful veracity. The Trial Court was not justified in forming that opinion without affording the appellant an opportunity of adducing secondary evidence. The appellant has alleged the original rent note to be in possession of the respondent. The case was covered by Clause (a) of Section 65 of the Indian Evidence Act, 1872.</h4><h4 style=\"\">6.Per contra, Sri Trimurthy, the learned Counsel appearing for Sri K.S. Desai for the respondent submits that no notice whatsoever is given to the legal representatives of Abdul Kareem Sab or to the respondent under Section 66 of the Indian Evidence Act, 1872. He contends that giving of secondary evidence is permissible only if the pre-condition of issuing the notice under Section 66 of the said Act is complied with. The learned Counsel contends that the issuance of notice as contemplated by Order 11, Rule 16 of C.P.C. does not amount to giving notice as required under Section 66 of the Indian Evidence Act. He submits that the notice under the said provisions of C.P.C. is for the purpose of producing the original document which is in the custody of the opposite party. In the instant case, as the defendant has denied the very execution of the affidavit, the question of complying with the notice issued under Order 11 Rule 16 of C.P.C. would not arise at all. He further brings to my notice that nowhere in the plaint, the petitioner has stated that the original affidavit is in the possession of the defendant.</h4><h4>7. Sri Trimurthy has relied on the Hon\'ble Supreme Court\'s decision in the case of Sital Das v. Sant Ram, reported in AIR 1954 SC 606, wherein it is held that the foundation must be first laid for the reception of the secondary evidence. On the same lines is the judgment of the Apex Court in the case of The Roman Catholic Mission v. The State of Madras, reported in AIR 1966 SC 1457, relied upon by the petitioners. It is held therein that the copies of the originals are not admissible in evidence, if no foundation is laid for the establishment of the right to give secondary evidence.<br>8. Nextly, Sri Trimurthy brings to my notice this Court\'s decision in the case of B. Balachandra Rai v. The Indian Telephone Industries Limited, by its Chairman and Managing Director, reported in ILR 2003 KAR 2911. In the said case, this Court has taken the considered view that mere production of photocopies do not amount to proof of the same unless the copy given in evidence is shown either to have been made from original or to have been compared with the original.<br>9. Further, Sri Trimurthy seeks to draw support from the Division Bench judgment of this Court in the case of K.P. Krishnakumar v. Smt. Radhalakshmi Amma, reported in ILR 2004 KAR 4838. The Division Bench has held that there must be sufficient proof of search for the original to render the secondary evidence admissible; it must be established that the party has exhausted all resources and means in search of the document. He has also relied on the Hon\'ble Supreme Court\'s decision in the case of Ram Suresh Singh v. Prabhat Singh Alias Chhotu Singh, reported in (2009) 6 SCC 681, to contend that the photocopy in the absence of the original is not admissible in evidence.<br><b style=\"background-color: rgb(255, 255, 0);\">10. The question that falls for my consideration is whether the Trial Court has erred in rejecting the secondary evidence of such document as being inadmissible in evidence?</b><br>12. Further, nowhere it is stated that the xerox copy is taken form its original or that it is compared with the original after taking its xerox copy. The decision of the Rajasthan High Court in the case of Rajasthan Golden Transport Company v. L.Rs. of Amritlal, reported in AIR 1998 Rajasthan 153, is of immense assistance. It has held that if no notice was given to the witness to produce the document in original and if there is no material to show that the photostat copy was made from its original, the order permitting the party to produce the said copy is not proper.<br>14. As held by the Apex Court in the case of Sital Das (supra), unless the foundation for producing the secondary evidence is laid, the xerox copy is not admissible in evidence. A plain reading of the plaint does not show that the petitioner has exhausted all the resources and means in search of the affidavit. This can be an additional justificatory reason for the Trial Court\'s refusal to take the secondary evidence. In this regard, it is useful to refer to the relevant paragraph of the Division Bench judgment in the case of K.P. Krishnakumar (supra), which is as follows:—</h4><h4 style=\"margin-left: 25px;\">“16. Section 65 of the Evidence Act deals merely with the foundation that has to be laid for reception of secondary evidence. One of the circumstances under which Section 65 allows the secondary evidence to be given of the existence, condition or contents of a document is when the original has been destroyed or lost. But, to admit the secondary evidence, however, it is not sufficient to show merely that the original document is lost. The secondary evidence itself must be of the nature described in Section 63. A “true copy” of a document will not be admissible under Section 63 unless it is shown that it has been made from or compared with the original. Further, there must be a sufficient proof of the search for the original to render the secondary evidence admissible. It must be established that the party has exhausted all resources and means in search of the document which was available to him. Since this aspect falls within the domain vested in the Trial Court, an appellate Court would not ordinarily interfere with the exercise of such discretion. However, it would certainly interfere if it funds that the Trial Court has accepted the loss of the document as a fact without taking into consideration the prerequisite conditions that are required by the Evidence Act. At this juncture, it needs to be noticed and highlighted that it is not the case of the defendant that Ex-D-4 is made out of the original and consequently Ex. D-4 is not admissible under Section 63 of the Evidence Act.”</h4><h4>16. It is also worthwhile to refer to the decision of the Orissa High Court in the case of Puma Chandra Patnaik v. Kalidas Sen, reported in AIR 1973 Orissa 65, wherein it is held that, if the original is not in possession of the plaintiff, no secondary evidence can be admitted unless notice under Section 66 to the person possessing it is issued; the issuance of the notice under Section 66 of the said Act is mandatory. Similarly, the Division Bench of Calcutta High Court in the case of Nityananda Roy v. Rashbehari Roy, reported in AIR 1953 Calcutta 456, has this to say:—</h4><h4 style=\"margin-left: 25px;\">“5………. The procedure there prescribed is that the party desiring to make use of secondary evidence must, in the first instance, serve a notice upon the party in whose possession the original may be, requiring him to produce the original and it is only when such notice is not complied with that the right to give secondary evidence arises. There are certain exceptions to the rule laid down in Section 66, but it is perfectly clear that none of them applies to the present case. It is equally clear from the records that no notice of any kind was ever served on the petitioner. In those circumstances, it follows that the carbon copy of the signature, appearing on Ex. 1, never became admissible in law and insofar as the learned Magistrate\'s conclusion is based upon Ex. 1, it is plainly erroneous.”<br></h4><h4>17. As no material particulars as to what endeavours are made by the petitioner to search the original are furnished, as the petitioner has not said in whose possession the original affidavit is lying, as no notice under Section 66 of the Indian Evidence Act, 1872 is issued, as the legal representatives of the deceased Abdul Kareem Sab are also not put on notice, as there is no averment in the plaint that the xerox copy is taken from the original or is compared with the original and as there is no possibility of the xerox copy being compared with the Trial Court\'s order dismissing the I.A. is absolutely upholdable and it is accordingly upheld. Considering the legal and factual matrix of this case, a xerox copy of the affidavit in question cannot be permitted to be marked in evidence at all. No foundation whatsoever is laid for the establishment of the right to give secondary evidence.<br>18. For all the aforesaid reasons, this petition is dismissed. No order as to costs.</h4><p><br></p>', '4a85bdc570b59f3b5e6df4b7840cb9bf.PNG', 'f649b3afaf40217812acdfe46080a30c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2010-06-28', 1, '', '', '2021-04-12 23:09:46', '2021-04-12 23:11:51'),
(681, 'Kn4kieH9CdGSyWZWZWHGPCazD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 156(3). While passing pre-cognizance order, Magistrate has to apply his judicious mind and form an opinion that allegations in the complaint constitute an offence which requires an investigation. Karnataka High Court. 25 March 2021', '<h4>Kangana Ranaut vs The State of Karnataka and another. </h4><h4>Criminal Petition 1920 of 2021 decided on 25 March 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/377791/1/CRLP1920-21-25-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/377791/1/CRLP1920-21-25-03-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: This petition is filed under Section 482 of Cr.P.C. praying this Court to quash the private complaint dated 25.09.2020 filed by respondent No.2 on the file of Principal Civil Judge and JMFC, Tumkur in P.C.R.No.452/2020 against the petitioner for the offence punishable under Sections 44, 108, 153, 153A and Section 504 of IPC; the FIR bearing No.194/2020 dated 12.10.2020; the order dated 09.10.2020 passed in P.C.R.No.452/2020 and the notice issued under Section 41A of the Code of Criminal Procedure, 1973 dated 04.01.2021 issued against the petitioner under the provisions of Cr.P.C. and pass such other order as deems fit in the facts and circumstances of the case.<br>2. The factual matrix of the case is that respondent No.2, who is the complainant, had filed the private complaint before the learned Magistrate seeking an order to investigate the matter against the petitioner herein by filing the complaint under Section 200 of Cr.P.C. and also sought for an order under Section 156(3) of Cr.P.C. In the complaint, the  allegation  is made that the petitioner herein in the twitter addressed the supporters of the Farmers’ Bill as terrorists. Hence,  the  petitioner herein has committed an offence invoked against her.<br></h4><h4>6. Having heard the arguments of the  respective counsel and on perusal of the material, particularly, twitter,  which is produced at Annexure ‘A’, the petitioner herein in the twitter called the supporters of the Farmers’ Bill as terrorists and the same is serious in nature, when the complaint was given, the learned Magistrate has to apply his judicious mind. In the case on hand, the learned Magistrate while passing an order on 09.10.2020 having heard the complainant made an observation  in the order that perused the entire case file and the documents placed on record and also oral submission of the complainant   and the case is referred under Section 156(3) of Cr.P.C., for investigation. Having taken note of the order no where the learned Magistrate made any reference in the order that he has perused the complaint and the complaint  averments  and whether the complaint averments made in the complaint constitute an offence invoked against the petitioner. No doubt, the order passed by the learned Magistrate is only a pre- cognizance order and not taken any cognizance. However, the Court while invoking Section 156(3) and passing pre-cognizance order, the learned Magistrate has to apply his judicious mind and form an opinion that whether the allegations made in the complaint constitute an offence invoked against the petitioner  and the same requires an investigation referring the complaint to Investigating Officer under Section 156(3) of Cr.P.C., and the same has not been done instead he has passed a mechanical order.</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">7. The Apex Court in its judgment in the case of MAKSUD SAIYED v. STATE OF GUJARAT AND OTHERS reported in (2008) 5 SCC 668 has held that while exercising   the discretionary powers, the Magistrate has to apply his  judicious mind whether the complaint averments constitute cognizable or non-cognizable offences while ordering for police investigation under Section 156(3) of Cr.P.C. Without applying the judicious mind on the complaint averments and the material on record, the learned Magistrate has passed a mechanical order which amounts to non-application of mind. Hence, it requires an interference of this Court.</b><br>(i) ORDER<br>The petition is allowed.<span style=\"white-space:pre\">	<br></span>(ii) The order dated 09.10.2020 P.C.R.No.452/2020 pending on the file Principal Civil Judge and JMFC, Tumkur, hereby set aside.<br>(iii) The matter is remitted to  the  learned  Magistrate to consider the matter afresh and pass an order in the light of the observations made by this order and also the principles laid down in the judgment referred supra. In view of allowing the main petition, I.As, if any, do not survive for consideration and the same stand disposed of.<br><br></h4>', 'b4eed6db27d4e8003d7ff1c5ce493ad1.jpg', 'd635d775e45a313eaef5e7a40f247d2f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-25', 1, '', '', '2021-04-12 23:40:24', '2021-04-12 13:31:03'),
(682, 'a68H0vNRjejzCll1BVqUmvatw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Consumer Protection Act. Driving under influence of alcohol or drugs. Insurer can repudiate claim even in the absence of scientific material, if it can establish a case for exclusion. Case law discussed. Supreme Court. 12 April 2021', '<h4>Ifco Tokio General India vs Pearl Beverages Ltd. </h4><h4>Civil Appeal ....of 2021 arising out of SLP (Civil) 12489 of 2020 decided on 12 April 2021. </h4><h4>Justice Uday Umesh lalit, Justice Indira Banerjee and Justice K.M. Joseph. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/22307/22307_2020_34_1501_27575_Judgement_12-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/22307/22307_2020_34_1501_27575_Judgement_12-Apr-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 21. The expression “under the influence of intoxicating liquor” does not appear to be of recent origin in a Contract of Insurance. It has been around for quite a while. In this regard, we may notice the judgments of the English Courts. In Mair (Administratrix) v. Railway Passengers Assurance Co. (Limited) 1877 37 L.T. 356 DC.<br></h4><h4>101. We would think that it would not be appropriate to conflate the two situations, viz., the requirement under Section 185 of the MV Act and an Exclusion Clause in the Contract of Insurance in question. The requirements of drunken driving under Section 185 of the MV Act, can be proved only with reference to the presence of the alcohol concentration which is 30 mg per 100 ml of blood. This corresponds to 0.03 per cent BAC. In fact, it is noteworthy that in Sweden and in China, it is 0.02.<br>102.As far as establishing the contention by the insurer in a Clause of the nature, we are dealing with, viz., a case where the insurer alleges that the driver was driving the vehicle under the insurance of alcohol, it is all very well, if there is a criminal case and evidence is obtained therein, which shows that the driver had 30 mg/100 ml or more. Or in other words, if the BAC level was 0.03 or more. We would think that in a case where, there is a blood test of breath test, which indicates that there is no consumption at all, undoubtedly, it would not be open to the insurer to set up the case of exclusion. The decision of this Court in Bachubhai Hassanalli Karyani (supra) was rendered under Section 117 of the Motor Vehicles Act, 1939, prior to its substitution in 1977, and what is more it turned on the evidence also.<br><b style=\"background-color: rgb(255, 255, 0);\">103.However, in cases, where there is no scientific material, in the form of test results available, as in the case before us, it may not disable the insurer from establishing a case for exclusion. The totality of the circumstances obtaining in a case, must be considered. The scope of the enquiry, in a case under the Consumer Protection Act, which is a summary proceeding, cannot be lost sight of. A consumer, under the Act, can succeed, only on the basis of proved deficiency of service. The deficiency of service would arise only with reference to the terms of the contract and, no doubt, the law which surrounds it. If the deficiency is not established, having regard to the explicit terms of the contract, the consumer must fail.</b></h4><h4><b style=\"background-color: rgb(255, 255, 0);\">Also see:&nbsp;</b></h4><h4>25. A CASE FROM SCOTLAND Kennedy v. Smith5 5 1975 S.C. 266; (1975) 6 WLUK 97<br>31. THE POSITION IN THE UNITED STATES OF AMERICA<br>44. THE U.K. ROAD TRANSPORT TRAFFIC ACT, 1930 AND LATER ENACTMENTS<br>59. A FEW SCIENTIFIC ASPECTS ABOUT ALCOHOL </h4><h4>67.TWO ARTICLES EFFECT OF ALCOHOL ON BRAIN DEVELOPMENT BY FARHIN PATEL AND PALASH MANDAL<br>69. HOW DOES ALCOHOL ACT AT THE NEUROLOGICAL LEVEL?<br>84. RES IPSA LOQUITUR<br></h4>', 'be87706ed24d0c726e6160c9adbfdfeb.png', 'f6d39b752018a2b26db074071b388171.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-12', 1, '', '', '2021-04-13 02:11:11', '2021-04-13 02:24:55'),
(683, '51ViHWUaIOpxSYeqhVVAeRN6j', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 482. If criminal colour is given to a civil dispute, Court can invoke Section 482. Merely because there is a civil dispute between parties, criminal prosecution cannot be quashed, if criminality is found in complaint. Kar HC. 9:4:2021', '<h4>G.Chitra Poornima and another vs State of Karnataka and another. </h4><h4>Criminal Petition 1244 of 2020 decided on 9 April 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/378510/1/CRLP1244-20-09-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/378510/1/CRLP1244-20-09-04-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: This petition is filed under Section 482 of Cr.P.C read with Article 226 of Constitution of India praying this Court to quash the FIR dated 24.01.2020 registered by respondent No.1 in Crime No.19/2020 pending on the file of X Additional Chief Metropolitan Magistrate at Bengaluru for the offence punishable under Sections 427, 506, 120B, 420, 435, 447 read with Section<br>34 of IPC and quash the complaint dated 06.12.2019 filed on 24.01.2020 by respondent No.2 with respondent No.1 and pass such other orders as deem fit in the facts and circumstances of the case.<br> <br>23. Having heard the learned counsel for the petitioners and learned counsel for the respondent No.2, this Court has to analyse the material available on record as to whether this Court can quash the FIR or not. Having considered the material available on record and also the principles laid down in the judgments referred supra, it is clear that if the material indicates that if it is a civil dispute between the parties, the Court can invoke Section 482 of Cr.P.C. when the criminal colour is given to the civil dispute. It is also settled law that merely because there is a civil dispute between the parties, the criminal prosecution cannot be quashed, if criminal culpability is found in the complaint.<br>24. It is also important to note that the Apex Court also in the case of Dineshbhai Chandubhai Patel vs The State of Gujarat reported in 2018 (3) SCC 104, held that High Court should not venture to probe the matter and also should not sit as an Appellate Court to appreciate the material  on record and go to collect the evidence while exercising the powers under Section 482 of Cr.P.C. when the FIR is the context of the matter.<br>25. In view of the principles laid down the judgment referred supra and also principles laid down in the judgments referred by the learned counsel for the parties, this Court has to consider the case on hand. Now this Court has to look into the contents of the complaint since the law is set into motion only by registering the case. On perusal of the complaint, it is not in dispute that the joint development agreement was entered into between the parties and the arbitration proceedings were adjudicated between the parties. It is also not in dispute that  the award has been passed and same has been questioned before the Court by filing the arbitration suit, but the fact is that in para No.7 of the complaint, a specific allegation is made that after the award has been passed on 25.04.2018 when the appeal was filed in the last week of October, 2019 with a dishonest intention of cheating the petitioners herein and caused loss to them by damaging the barricade illegally, caused damage to the hoardings put up by them and also dismantled the POTA cabin installed by them. When the representatives went and questioned the same, they were subjected to abuse and caused the threat.<br>26. Learned counsel appearing for the petitioners also brought to the notice of this Court the averment made in the joint development agreement and would contend that no possession was delivered and also arbitration award is also clear that no possession has been delivered. Having perused the contents of the joint development agreement, in clause(f) there was an understanding for the development of the schedule property and the developer has undertaken to develop the schedule property into the Mall and to operate, manage and maintain the Mall so developed as set out in the joint development agreement. It is also important to note that in clause-14 consent for development was also given i.e., subject to fulfillment of the conditions and given license to the developer to enter the schedule property and undertaken to develop the schedule property in terms thereof. It is not in dispute that arbitration award is also challenged. It is an allegation that during the pendency of the said arbitration appeal, the incident of criminal trespass was taken place and caused the mischief. When such being the averments made in the complaint and when the parties have entered into the joint development agreement and payment was made and so also when the specific allegations are made that they have illegally entered into property and caused loss by dismantling the POTA cabin, the Court has to look into the averments in the complaint in order to invoke Section 482 of Cr.P.C. If the complaint does discloses the commission of a cognizable offence, then the Investigating Officer should be allowed to investigate the matter and unearth the crime. As this Court had already pointed out, the High Court should not venture to interfere with the investigation in the case on hand. It is also to be noted that the law was set into motion based on the complaint given by the complainant and the same has requires to be probed. In view of the principles laid down in the judgment referred supra and if the complaint, prima facie does not discloses the commission of a cognizable offence, then Court can invoke Section 482 of Cr.P.C.<br>27. Having perused the contents of the complaint, it prima facie discloses the commission of a cognizable offence. Under the circumstances, I do not find any material to interfere and quash the proceedings initiated against the petitioners herein. As I have already pointed out that it is also the settled law that merely the fact of a civil dispute pending before the Court cannot be a ground to quash the proceedings. The Apex Court also in Crl.A.No.255/2019 between Sau. Kamal Shivaji Pokarnekar v. The State of Maharashtra and Others held that on perusal of the complaint if it discloses the prima face offences that are alleged against the respondents, there cannot be any quashing of the proceedings. The correctness or otherwise of the said allegations has to be decided only in the trail. The criminal complaint cannot be quashed only on the ground that the allegations made in the complaint appear to be of a civil nature. It is further held that if the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceedings shall not be interdicted. The Apex Court also in the recent decision rendered in PRITI SARAF AND ANOTHER V. STATE OF NCT OF DELHI AND ANOTHER reported in 2021 SCC Online SC 206, wherein it is held that mere pending of Arbitration proceedings cannot be a ground to quash the charge sheet and set aside the order of High Court in quashing the charge sheet. In the present case, petitioners have sought or quashing of the FIR and the Investigating Officer has to probe the crime as per the procedure established under Code of Criminal Procedure. Hence, there is  no merit in the petition to invoke Section 482 of Cr.P.C. to quash the proceedings.<br>28.<span style=\"white-space:pre\">	</span>In view of the discussions made above, I pass the following:<br>ORDER<br>The petition is hereby rejected. However, the petitioners are given liberty to file a petition after filing the charge sheet, if need arises. In view of rejection of the main petition, I.As, if any does not survive for consideration and the same stands disposed of.<br><br></h4>', 'ca4df77607a76110af0c99280ba16410.jpg', 'cb3e9a3d3f502adbd7c9718706bd0713.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-09', 1, '', '', '2021-04-13 03:04:58', '2021-04-13 03:06:55'),
(684, 'B5XXlrm6J4tlCuYnWIaeYBBcZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Insolvency and Bankruptcy Code, 2016. Even statutory dues to the Central Govt, State Govt and local authority, which are not part of resolution plan get extinguished.  Supreme Court 13 April 2021', '<h4>Ghanashyam Mishra and sons Pvt Ltd vs Edelweiss Assets Reconstruction Company Limited. </h4><h4>Civil Appeal 8129 of 2019 decided on 13 April 2021. </h4><h4>Justice R.F. Nariman, Justice B.R. Gavai and Justice Hrishikesh Roy.&nbsp;</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Judgment Link</span>: <a href=\"https://main.sci.gov.in/supremecourt/2019/22323/22323_2019_33_1501_27518_Judgement_13-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/22323/22323_2019_33_1501_27518_Judgement_13-Apr-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 2. The short but important questions, that arise for consideration in this batch of matters, are as under:­<br>(i) As to whether any creditor including the Central Government, State Government or any&nbsp; &nbsp;local&nbsp; &nbsp;authority&nbsp; &nbsp;is&nbsp; &nbsp;bound&nbsp; &nbsp;by&nbsp; &nbsp;the Resolution Plan once it is approved by an adjudicating&nbsp; &nbsp;authority&nbsp; &nbsp;under&nbsp; &nbsp;sub­-section (1)&nbsp; &nbsp;of&nbsp; &nbsp;Section&nbsp; &nbsp;31&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Insolvency&nbsp; &nbsp;and Bankruptcy&nbsp; &nbsp;Code,&nbsp; &nbsp;2016?<br>(ii) As to whether the amendment to Section 31&nbsp; &nbsp;by&nbsp; &nbsp;Section&nbsp; &nbsp;7&nbsp; &nbsp;of&nbsp; &nbsp;Act&nbsp; &nbsp;26&nbsp; &nbsp;of&nbsp; &nbsp;2019&nbsp; &nbsp;is clarificatory/declaratory&nbsp; or&nbsp; substantive&nbsp; in nature?<br>(iii) As to whether after approval of resolution plan&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; Adjudicating&nbsp; &nbsp;Authority&nbsp; a creditor including the Central Government, State Government or any local authority is entitled&nbsp; &nbsp;to&nbsp; &nbsp;initiate&nbsp; &nbsp;any&nbsp; &nbsp;proceedings&nbsp; &nbsp;for recovery&nbsp; &nbsp;of&nbsp; &nbsp;any&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;dues&nbsp; &nbsp;from&nbsp; &nbsp;the Corporate Debtor, which are not a part of the&nbsp; &nbsp;Resolution&nbsp; &nbsp;Plan&nbsp; &nbsp;approved&nbsp; &nbsp;by&nbsp; &nbsp;the adjudicating authority?<br>48. We have extensively heard the learned counsel appearing for the parties in all the matters, perused the written submissions and materials on record.&nbsp;</h4><h4>49. The&nbsp; &nbsp;provisions&nbsp; &nbsp;of&nbsp; &nbsp;I&amp;B&nbsp; &nbsp;Code&nbsp; &nbsp;have&nbsp; &nbsp;undergone scrutiny in various judgments of this Court.&nbsp; We would not like to burden the present judgment with the provisions of the&nbsp; &nbsp;statute,&nbsp; which have&nbsp; &nbsp;been&nbsp; &nbsp;duly&nbsp; &nbsp;reproduced&nbsp; and considered in the earlier judgments of this Court.&nbsp;<br>54. It could thus be seen, that one of the dominant objects of I&amp;B Code is to see to it, that an attempt has to be made to revive the Corporate Debtor and make it a running concern.&nbsp; For that, a resolution applicant has to prepare a resolution&nbsp; &nbsp;plan&nbsp; &nbsp;on&nbsp; &nbsp;the&nbsp; &nbsp;basis&nbsp; of&nbsp; &nbsp;the&nbsp; &nbsp;Information Memorandum. The Information Memorandum, which is required to be prepared in accordance with Section 29 of I&amp;B Code along with Regulation 36 of the Regulations, is required&nbsp; &nbsp;to&nbsp; &nbsp;contain&nbsp; &nbsp;various&nbsp; &nbsp;details,&nbsp; &nbsp;which&nbsp; &nbsp;have&nbsp; &nbsp;been gathered by RP after receipt of various claims in response to the statutorily mandated public notice. The resolution plan is&nbsp; &nbsp;required&nbsp; &nbsp;to&nbsp; &nbsp;provide&nbsp; &nbsp;for&nbsp; &nbsp;the&nbsp; &nbsp;payment&nbsp; &nbsp;of&nbsp; &nbsp;insolvency resolution process costs, management of the affairs of the Corporate Debtor after approval of the resolution plan; the implementation and supervision of the resolution plan.&nbsp; It is only after the Adjudicating Authority satisfies itself, that the plan as approved by CoC with the requisite voting share of financial creditors meets the requirement as referred to in sub­section (2) of Section 30, grants its approval to it.&nbsp; &nbsp;It is only&nbsp; &nbsp;thereafter,&nbsp; &nbsp;that&nbsp; &nbsp;the&nbsp; &nbsp;said&nbsp; &nbsp;plan&nbsp; &nbsp;is&nbsp; &nbsp;binding&nbsp; &nbsp;on&nbsp; &nbsp;the Corporate&nbsp; &nbsp;Debtor&nbsp; &nbsp;as&nbsp; &nbsp;well&nbsp; &nbsp;as&nbsp; &nbsp;its&nbsp; &nbsp;employees,&nbsp; &nbsp;members, creditors, guarantors and other stakeholders involved in the resolution&nbsp; Plan.&nbsp; &nbsp; &nbsp;The&nbsp; &nbsp;moratorium&nbsp; &nbsp;order&nbsp; &nbsp;passed&nbsp; &nbsp;by&nbsp; &nbsp;the Adjudicating&nbsp; &nbsp;Authority&nbsp; under&nbsp; &nbsp;Section&nbsp; &nbsp;14&nbsp; &nbsp;shall&nbsp; &nbsp;cease&nbsp; &nbsp;to operate,&nbsp; &nbsp;once&nbsp; &nbsp;the&nbsp; Adjudicating&nbsp; &nbsp;Authority&nbsp; approves&nbsp; &nbsp;the resolution plan.&nbsp; &nbsp;The scheme of I&amp;B Code therefore is, to make an attempt, by divesting the erstwhile management of its powers and vesting it in a professional agency, to continue the business of the Corporate Debtor as a going concern until a resolution plan is drawn up. Once the resolution plan is approved, the management is handed over under the plan to the successful applicant so that the Corporate Debtor is able to pay back its debts and get back on its feet<br>67. As such, with respect to the proceedings, which arise after 16.8.2019, there will be no difficulty. After the amendment, any debt in respect of the payment of dues arising under any law for the time being in force including the&nbsp; &nbsp;ones&nbsp; &nbsp;owed&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;Central&nbsp; &nbsp;Government,&nbsp; &nbsp;any&nbsp; &nbsp;State Government or any local authority, which does not form a part&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;approved&nbsp; &nbsp;resolution&nbsp; &nbsp;plan,&nbsp; &nbsp;shall&nbsp; &nbsp;stand extinguished.&nbsp;&nbsp;<br>68. The&nbsp; &nbsp;only&nbsp; &nbsp;question,&nbsp; &nbsp;which&nbsp; &nbsp;remains&nbsp; &nbsp;is,&nbsp; &nbsp;what happens to such dues if they pertain to a period wherein Section 7 petitions have been admitted prior to 16.8.2019.&nbsp; &nbsp;</h4><h4>87. We&nbsp; &nbsp;have&nbsp; &nbsp;no&nbsp; &nbsp;hesitation&nbsp; &nbsp;to&nbsp; &nbsp;say,&nbsp; &nbsp;that&nbsp; &nbsp;the&nbsp; &nbsp;word “other&nbsp; &nbsp;stakeholders”&nbsp; &nbsp;would&nbsp; &nbsp;squarely&nbsp; &nbsp;cover&nbsp; &nbsp;the&nbsp; &nbsp;Central Government, any State Government or any local authorities. The&nbsp; &nbsp;legislature,&nbsp; &nbsp;noticing&nbsp; &nbsp;that&nbsp; &nbsp;on&nbsp; &nbsp;account&nbsp; &nbsp;of&nbsp; &nbsp;obvious omission, certain tax authorities were not abiding by the mandate of I&amp;B Code and continuing with the proceedings, has brought out the 2019 amendment so as to cure the said mischief.&nbsp; We therefore hold, that the 2019 amendment is declaratory&nbsp; &nbsp;and&nbsp; &nbsp;clarificatory&nbsp; &nbsp;in&nbsp; &nbsp;nature&nbsp; &nbsp;and&nbsp; &nbsp;therefore retrospective in operation.&nbsp;</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">CONCLUSION<br>95. In the result, we answer the questions framed by us as under:<br>(i) That once a resolution plan is duly approved by&nbsp; &nbsp;the&nbsp; &nbsp;Adjudicating&nbsp; &nbsp;Authority&nbsp; &nbsp;under&nbsp; &nbsp;subsection&nbsp; &nbsp;(1)&nbsp; &nbsp;of&nbsp; &nbsp;Section&nbsp; &nbsp;31,&nbsp; &nbsp;the&nbsp; claims&nbsp; &nbsp;as provided in the resolution plan shall stand frozen and will be binding on the Corporate Debtor&nbsp; &nbsp;and&nbsp; &nbsp;its&nbsp; &nbsp;employees,&nbsp; &nbsp;members,creditors,&nbsp; &nbsp;including&nbsp; &nbsp;the&nbsp; &nbsp;Central Government, any State Government or any local&nbsp; &nbsp;authority,&nbsp; &nbsp;guarantors&nbsp; &nbsp;and&nbsp; &nbsp;other<br>stakeholders.&nbsp; &nbsp;On the date of approval of resolution&nbsp; &nbsp;plan&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;Adjudicating Authority, all such claims, which are not a part&nbsp; &nbsp;of&nbsp; &nbsp;resolution&nbsp; &nbsp;plan,&nbsp; &nbsp;shall&nbsp; &nbsp;stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the<br>resolution plan;<br>(ii) 2019 amendment to Section 31 of the I&amp;B Code&nbsp; &nbsp;is&nbsp; &nbsp;clarificatory&nbsp; &nbsp;and&nbsp; &nbsp;declaratory&nbsp; &nbsp;in nature and therefore will be effective from the date on which I&amp;B Code has come into effect;<br>(iii) Consequently&nbsp; &nbsp;all&nbsp; &nbsp;the&nbsp; &nbsp;dues&nbsp; &nbsp;including&nbsp; &nbsp;the statutory&nbsp; &nbsp;dues&nbsp; &nbsp;owed&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;Central Government, any State Government or any local authority, if not part of the resolution plan,&nbsp; &nbsp;shall&nbsp; &nbsp;stand&nbsp; &nbsp;extinguished&nbsp; &nbsp;and&nbsp; &nbsp;no proceedings in respect of such dues for the period&nbsp; &nbsp;prior&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;date&nbsp; &nbsp;on&nbsp; &nbsp;which&nbsp; &nbsp;the Adjudicating&nbsp; &nbsp;Authority&nbsp; grants&nbsp; &nbsp;its&nbsp; &nbsp;approval under Section 31 could be continued.&nbsp;</b></h4>', '17693459fdce7663374420269848055d.PNG', '1b0bdce421e4376265529e211713908d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-13', 1, '', '', '2021-04-14 19:28:03', '2021-04-14 19:31:46'),
(685, 'nsWwbzcycImUvF73AQhxDOizB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 239. At the stage of considering discharge, law does not permit a mini trial. Test is if there is a ground to presume that offence has been committed and not whether a ground for conviction has been made out. Supreme Court. 13 April 2021', '<h4>State of Rajasthan vs Ashok Kumar Kashyap. </h4><h4>Criminal Appeal 407 of 2021 decided on 13 April 2021. </h4><h4>Justice Dr. Dhananjaya Y. Chandrachud and M.R. Shah</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Judgment Link</span>: <a href=\"https://main.sci.gov.in/supremecourt/2020/8524/8524_2020_36_1501_27516_Judgement_13-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/8524/8524_2020_36_1501_27516_Judgement_13-Apr-2021.pdf</a><br>9.2 In the recent decision of this Court in the case of M.R. Hiremath (supra), one of us (Justice D.Y. Chandrachud) speaking for the Bench has observed and held in paragraph 25 as under:<br></h4><h4 style=\"margin-left: 25px;\">25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709, adverting to the earlier decisions on the subject, this Court held: (SCC pp. 721-22, para 29)</h4><h4 style=\"margin-left: 50px;\">“29. … At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.”</h4><h4>11. Having considered the reasoning given by the High Court and the grounds which are weighed with the High Court while discharging the accused, we are of the opinion that the High Court has exceeded in its jurisdiction in exercise of the revisional jurisdiction and has acted beyond the scope of Section 227/239 Cr.P.C. While discharging the accused, the High Court has gone into the merits of the case and has considered whether on the basis of the material on record, the accused is likely to be convicted or not.<br>13. In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court discharging the accused under Section 7 of the PC Act is unsustainable in law and the same deserves to be quashed and set aside and is accordingly hereby quashed.</h4><p><br></p>', '8d207625ba5c16e785c42c5224f22057.PNG', 'ba2116329a94ce47c1c468ac8a9880da.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-13', 1, '', '', '2021-04-14 23:08:49', '2021-04-14 23:11:39');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(686, 'T1Zhfvjdm63oR4EnodydyKbRc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Supreme Court severely deprecates practice of High Courts granting interim orders like “no coercive steps against accused” or “do not arrest accused” while dealing with writ petitions or petitions under Section 482 Cr.P.C. Lays down guidelines. 13:4:2021', '<h4>M/s Neeharika Infrastructure Pvt. Ltd. vs State of Maharashtra and others. </h4><h4>Criminal Appeal 330 of 2021 decided on 13 April 2021. </h4><h4>Justice Dr. Dhananjaya Y. Chandrachud, Justice M.R. Shah, Justice Sanjiv Khanna<br><span style=\"background-color: rgb(255, 255, 0);\">Judgment Link: </span><a href=\"https://main.sci.gov.in/supremecourt/2020/21426/21426_2020_36_1502_27516_Judgement_13-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/21426/21426_2020_36_1502_27516_Judgement_13-Apr-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 6. The principal issue which arises is when and where the High Court would be justified in passing an interim order either staying the further investigation in the FIR/complaint or interim order in the nature of “no coercive steps” and/or not to arrest the accused either pending investigation by the police/investigating agency or during the pendency of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India pending before the High Court?<br>8. While considering the issue involved, the rights and duties of the police to investigate into cognizable offences are also required to be considered.<br>8.1 The powers of investigation into cognizable offences are contained in Chapter XIV of the Code of Criminal Procedure. Section 154 deals with information in cognizable offence and Section 156 with investigation into such offence and under these sections the police have the statutory right to investigate into the circumstances of any alleged cognizable offence.<br>10. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:<br>i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;<br>ii) Courts would not thwart any investigation into the cognizable offences; <br>iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on; <br>iv) The power of quashing should be exercised sparingly with circumspection, in the ‘rarest of rare cases’. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court); <br>v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; <br>vi) Criminal proceedings ought not to be scuttled at the initial stage; vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule; <br>viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C. <br>ix) The functions of the judiciary and the police are complementary, not overlapping; <br>x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; <br>xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;</h4><h4>xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;<br>xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court; <br>xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and <br>xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR.<br>11. Whether the High Court would be justified in granting stay of further investigation pending the proceedings under Section 482 Cr.P.C. before it and in what circumstances the High Court would be justified is a further core question to be considered.<br>Before passing an interim order of staying further investigation pending the quashing petition under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India, the High Court has to apply the very parameters which are required to be considered while quashing the proceedings in exercise of powers under Section 482 Cr.P.C. in exercise of its inherent jurisdiction, referred to hereinabove. </h4><h4>12. In a given case, there may be allegations of abuse of process of law by converting a civil dispute into a criminal dispute, only with a view to pressurise the accused. Similarly, in a given case the complaint itself on the face of it can be said to be barred by law. The allegations in the FIR/complaint may not at all disclose the commission of a cognizable offence. In such cases and in exceptional cases with circumspection, the High Court may stay the further investigation. However, at the same time, there may be genuine complaints/FIRs and the police/investigating agency has a statutory obligation/right/duty to enquire into the cognizable offences. Therefore, a balance has to be struck between the rights of the genuine complainants and the FIRs disclosing commission of a cognizable offence and the statutory obligation/duty of the investigating agency to investigate into the cognizable offences on the one hand and those innocent persons against whom the criminal proceedings are initiated which may be in a given case abuse of process of law and the process. However, if the facts are hazy and the investigation has just begun, the High Court would be circumspect in exercising such powers and the High Court must permit the investigating agency to proceed further with the investigation in exercise of its statutory duty under the provisions of the Code. Even in such a case the High Court has to give/assign brief reasons why at this stage the further investigation is required to be stayed. The High Court must appreciate that speedy investigation is the requirement in the criminal administration of justice.<br>15. As observed hereinabove, there may be some cases where the initiation of criminal proceedings may be an abuse of process of law. In such cases, and only in exceptional cases and where it is found that non interference would result into miscarriage of justice, the High Court, in exercise of its inherent powers under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India, may quash the FIR/complaint/criminal proceedings and even may stay the further investigation. However, the High Court should be slow in interfering the criminal proceedings at the initial stage, i.e., quashing petition filed immediately after lodging the FIR/complaint and no sufficient time is given to the police to investigate into the allegations of the FIR/complaint, which is the statutory right/duty of the police under the provisions of the Code of Criminal Procedure. There is no denial of the fact that power under Section 482 Cr.P.C. is very wide, but as observed by this Court in catena of decisions, referred to hereinabove, conferment of wide power requires the court to be more cautious and it casts an onerous and more diligent duty on the court. Therefore, in exceptional cases, when the High Court deems it fit, regard being had to the parameters of quashing and the self-restraint imposed by law, may pass appropriate interim orders, as thought apposite in law, however, the High Court has to give brief reasons which will reflect the application of mind by the court to the relevant facts.<br>16. We have come across many orders passed by the High Courts passing interim orders of stay of arrest and/or “no coercive steps to be taken against the accused” in the quashing proceedings under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India with (<i>sic without) </i>assigning any reasons. We have also come across number of orders passed by the High Courts, while dismissing the quashing petitions, of not to arrest the accused during the investigation or till the chargesheet/final report under Section 173 Cr.P.C is filed. As observed hereinabove, it is the statutory right and even the duty of the police to investigate into the cognizable offence and collect the evidence during the course of investigation. There may be requirement of a custodial investigation for which the accused is required to be in police custody (popularly known as remand). Therefore, passing such type of blanket interim orders without assigning reasons, of not to arrest and/or “no coercive steps” would hamper the investigation and may affect the statutory right/duty of the police to investigate the cognizable offence conferred under the provisions of the Cr.P.C. Therefore, such a blanket order is not justified at all. The order of the High Court must disclose reasons why it has passed an ad-interim direction during the pendency of the proceedings under Section 482 Cr.P.C. Such reasons, however brief must disclose an application of mind.<br>The aforesaid is required to be considered from another angle also. Granting of such blanket order would not only adversely affect the investigation but would have far reaching implications for maintaining the Rule of Law. Where the investigation is stayed for a long time, even if the stay is ultimately vacated, the subsequent investigation may not be very fruitful for the simple reason that the evidence may no longer be available. Therefore, in case, the accused named in the FIR/complaint apprehends his arrest, he has a remedy to apply for anticipatory bail under Section 438 Cr.P.C. and on the conditions of grant of anticipatory bail under Section 438 Cr.P.C being satisfied, he may be released on anticipatory bail by the competent court. Therefore, it cannot be said that the accused is remediless. It cannot be disputed that the anticipatory bail under Section 438 Cr.P.C. can be granted on the conditions prescribed under Section 438 Cr.P.C. are satisfied. At the same time, it is to be noted that arrest is not a must whenever an FIR of a cognizable offence is lodged. Still in case a person is apprehending his arrest in connection with an FIR disclosing cognizable offence, as observed hereinabove, he has a remedy to apply for anticipatory bail under Section 438 Cr.P.C. As observed by this Court in the case of Hema Mishra v. State of Uttar Pradesh, (2014) 4 SCC 453, though the High Courts have very wide powers under Article 226, the powers under Article 226 of the Constitution of India are to be exercised to prevent miscarriage of justice and to prevent abuse of process of law by the authorities indiscriminately making pre-arrest of the accused persons…. However, such a blanket interim order of not to arrest or “no coercive steps” cannot be passed mechanically and in a routine manner.<br>19. We are at pains to note that despite the law laid down by this Court in the case of Habib Abdullah Jeelani (supra), deprecating such orders passed by the High Courts of not to arrest during the pendency of the investigation, even when the quashing petitions under Section 482 50 Cr.P.C. or Article 226 of the Constitution of India are dismissed, even thereafter also, many High Courts are passing such orders. The law declared/laid down by this Court is binding on all the High Courts and not following the law laid down by this Court would have a very serious implications in the administration of justice.<br>20.. We caution the High Courts again against passing such orders of not to arrest or “no coercive steps to be taken” till the investigation is completed and the final report is filed, while not entertaining quashing petitions under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India.<br>24. In view of the above and for the reasons stated above, the present\r\nappeal succeeds. The impugned interim order/direction contained in\r\nclause (d) of the impugned interim order dated 28.09.2020 by which the\r\nHigh Court has directed that “no coercive measures to be adopted”\r\nagainst the petitioners (respondent nos. 2 to 4 herein) in respect of FIR\r\nNo. 367/2019 dated 19.09.2019, registered at Worli Police Station,\r\nMumbai, Maharashtra (subsequently transferred to Economic Offence\r\nWing, Unit IX, Mumbai, renumbered as C.R. No. 82/2019) is hereby\r\nquashed and set aside. However, it is made clear that we have not\r\nexpressed anything on the merits of the case, more particularly the\r\nallegations in the FIR and the High Court to consider the quashing\r\n63\r\npetition in accordance with law and on its own merits and considering\r\nthe afore-stated observations made by this Court in the present\r\njudgment.\r\n</h4><h4>25. Having regard to the fact that despite the law laid down by this\r\nCourt in the case of Habib Abdullah Jeelani (supra) and other decisions,\r\nreferred to hereinabove, some High Courts have continued to pass such\r\ninterim orders, we direct the Registry to forward a copy of this judgment\r\nto all the High Courts to be placed before Hon’ble the Chief Justice to\r\ncirculate to all the Judges of the High Courts.<br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br></h4><p><br></p>', '60bdb401e0f5e183ce67bba5a87d4321.PNG', '7e5da7c2a5b9dfc70734002bf7d3b01f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-13', 1, '', '', '2021-04-15 00:28:42', '2021-04-15 00:35:25'),
(687, 'QgathOgPEReu3e8bHkEkjDsXs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Insolvency and Bankruptcy Code, 2016. Section 18 of the Limitation Act regarding effect of acknowledgement in writing applies to proceedings under the IB Code. Supreme Court. 15 April 2021', '<h4>Asset Reconstruction Company (India) Limited vs Bishal Jaiswal and another. </h4><h4>Civil Appeal 323 of 2021 decided on 15 April 2021. </h4><h4>Justice Rohinton Fali Nariman, Justice B.R. Gavai and Justice Hrishikesh Roy. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/2660/2660_2021_33_1502_27520_Judgement_15-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/2660/2660_2021_33_1502_27520_Judgement_15-Apr-2021.pdf</a></h4><h4><b style=\"background-color: rgb(255, 255, 0);\">7…..One question that arises before this Court is whether Section 18 of the Limitation Act, which extends the period of limitation depending upon an acknowledgement of debt made in writing and signed by the corporate debtor, is also applicable under Section 238A, given the expression “as far as may be” governing the applicability of the Limitation Act to the IBC.&nbsp;</b><br>8. The aforesaid question is no longer res integra as two recent judgments of this Court have applied the provisions of Section 14 and Section 18 of the Limitation Act to the IBC. Sesh Nath Singh v. Baidyabati Sheoraphuli Co-operative Bank Ltd., Civil Appeal No. 9198 of 2019 (decided on 22.03.2021)&nbsp; and Laxmi Pat Surana v. Union Bank of India, Civil Appeal No. 2734 of 2020, a judgment delivered on 26.03.2021 referred to.&nbsp;<br><b style=\"background-color: rgb(255, 255, 0);\">10. Given the aforesaid, it is not possible to accede to the arguments made by Shri Sinha that Section 18 of the Limitation Act cannot be made applicable by reason of the arguments put forth by him. </b>As has been held in Ambika Prasad Mishra v. State of U.P., (1980) 3 SCC 719, every argumentative novelty does not undo a settled position of law.<br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br></h4><p><br></p>', 'f9b6aacb5164a8ff3639ee24ad684b62.PNG', '28f0d0226285c747906bded41f3929c8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-15', 1, '', '', '2021-04-15 23:34:31', '2021-04-15 23:34:31'),
(688, 'qICAnhLUaMDIRoYqmOnxdWg4z', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Limitation Act. Section 18. Entries in balance sheets would amount to acknowledgment of debt for the purpose of extending limitation. Supreme Court. 15 April 2021', '<h4>Asset Reconstruction Company (India) Limited vs Bishal Jaiswal and another.<br>Civil Appeal 323 of 2021 decided on 15 April 2021.<br>Justice Rohinton Fali Nariman, Justice B.R. Gavai and Justice Hrishikesh Roy.<br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/2660/2660_2021_33_1502_27520_Judgement_15-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/2660/2660_2021_33_1502_27520_Judgement_15-Apr-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 1.....Full Bench judgment of the NCLAT in V. Padmakumar v. Stressed Assets Stabilisation Fund, Company Appeal (AT) (Insolvency) No. 57 of 2020 (decided on 12.03.2020) [“V. Padmakumar”], in which <b style=\"background-color: rgb(255, 255, 0);\">a majority of four members [Justice (Retd.) A.I.S. Cheema, Member (Judicial), dissenting] held that entries in balance sheets would not amount to acknowledgement of debt for the purpose of extending limitation under Section 18 of the Limitation Act.&nbsp;</b><br>13. The next question that this Court must address is as to whether an entry made in a balance sheet of a corporate debtor would amount to an acknowledgement of liability under Section 18 of the Limitation Act.&nbsp;<br>14. Several judgments of this Court have indicated that an entry made in the books of accounts, including the balance sheet, can amount to an acknowledgement of liability within the meaning of Section 18 of the Limitation Act. Mahabir Cold Storage v. CIT, 1991 Supp (1) SCC 402, A.V. Murthy v. B.S. Nagabasavanna, (2002) 2 SCC 642, S. Natarajan vs. Sama Dharman, Crl. A. No. 1524 of 2014 (decided on 15.07.2014), Bengal Silk Mills Co. v. Ismail Golam Hossain Ariff, 1961 SCC OnLine Cal 128 : AIR 1962 Cal 115, Kashinath Sankarappa v. New Akot Cotton Ginning &amp; Pressing Co. Ltd., 1949 SCC OnLine MP 123 : AIR 1951 Nag 255, Kashinath Sankarappa Wani v. New Akot Cotton Ginning and Pressing Co. Ltd., 1958 SCR 1331, Vijayalakshmi v. Hari Hara Ginning and Pressing, Nandigaon, OS A No. 40 of 1998 (decided on 03.03.1999), Ajit Chandra Bagchi v. Harishpur Tea Company (P.) Ltd., 1990 SCC OnLine Gau 24 : AIR 1991 Gau 92, South Asia Industries (P) Ltd. v. General Krishna Shamsher Jung Bahadur Rana, 1972 SCC OnLine Del 185 : ILR (1972) 2 Del 712,&nbsp; Pandam Tea Co. Ltd., In re, 1973 SCC OnLine Cal 93 : AIR 1974 Cal 170,&nbsp; Hegde &amp; Golay Limited v. State Bank of India, 1985 SCC OnLine Kar 428 : ILR 1987 Kar 2673, Bhajan Singh Samra v. M/s. Wimpy International Ltd., 2011 SCC OnLine Del 4888 : (2011) 185 DLT 428,&nbsp; CIT-III v. Shri Vardhman Overseas Ltd., 2011 SCC OnLine Del 5599 : (2012) 343 ITR 408, Shahi Exports Pvt. Ltd. v. CMD Buildtech Pvt. Ltd., 2013 SCC OnLine Del 2535 : (2013) 202 DLT 735,n N.S. Atwal v. Jindal Steel and Power Ltd., 2013 SCC OnLine Del 3902, M/s. Al-Ameen Limited v. K.P. Sethumadhavan, 2017 SCC OnLine Ker 11337 : (2017) 4 KLJ 80, Zest Systems Pvt. Ltd. v. Center for Vocational and Entrepreneurship Studies, 2018 SCC OnLine Del 12116, Agni Aviation Consultants v. State of Telangana, 2020 SCC OnLine TS 1462 : (2020) 5 ALD 561.<br><b style=\"background-color: rgb(255, 255, 0);\">33. It is, therefore, clear that the majority decision of the Full Bench in V. Padmakumar (supra) is contrary to the aforesaid catena of judgments. The minority judgment of Justice (Retd.) A.I.S. Cheema, Member (Judicial), after considering most of these judgments, has reached the correct conclusion.&nbsp;<br><br></b><br><br><br><br><br><br></h4><p><br></p>', '06d18ddd9d15977806ad268ecf5bab90.PNG', '13213fca5ac2630c0255ba25e23801ae.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-15', 1, '', '', '2021-04-16 01:02:39', '2021-04-16 01:02:39'),
(689, 'BW4eQM9cvxcpaJNZeAsytLDiN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bangalore Development Authority Act, 1976. Section 38-B. Karnataka High Court declares bulk allotment of acquired land by BDA in favour of BDA Employees\' Welfare Association as illegal. Dismisses PIL for non-joinder of allottes of the sites. 15 April 2021', '<h4>B.V.Shivaswamy vs The Government of Karnataka and others.</h4><h4> Writ Petition (PIL) 20651 of 2007 decided on 15 April 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/378733/1/WP20651-07-15-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/378733/1/WP20651-07-15-04-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: By this public interest litigation, bulk allotment of a land to an extent of 33 acres 02 guntas situated at Doddakallasandra village, Uttarahalli Hobli, Bangalore South Taluk in Sy.Nos.15,<br>16 and 17 (the Schedule Land) made by the Bangalore Development  Authority (for  short  ‘the  BDA’)  to  the Bangalore Development Authority Employees’ Welfare Association (4th respondent) has been questioned on various grounds. The BDA has been established under Section 3 of the Bangalore Development Authority Act, 1976 (for short ‘the BDA Act’)<br>9. We have considered the submissions made across the Bar and the relevant provisions of law. Under Section 38-B of the BDA Act, the BDA is empowered to make bulk allotment by way of sale, lease or otherwise of any land which belongs to it or is vested in it or acquired by it for the purpose of any development scheme.   It is further provided that prior approval of the Government shall be obtained for allotment of bulk land to any categories listed in Section 38-B. <br>10.Thus, bulk allotment of a land having an area exceeding five acres can be made by the BDA only on approval being granted by the State Government for the reasons recorded in writing. <br>11. The first question which arises for consideration is whether the State Government had passed an order, as  required by proviso to sub-rule (1) of Rule 7 and the second question is whether fair and transparent procedure has been followed while allotting a large extent of land to the 4th respondent. The other issue is whether the market value of the land allotted to the 4th respondent has been fixed in accordance with law. All these questions will have to be considered in the context of the fact that the 4th respondent is an association of the employees of the BDA.<br>12. In the writ petition, specific reliance has been placed on the statutory requirement incorporated in the proviso to sub-rule<br>(1) of Rule-7 of the Bulk Allotment Rules. In paragraph-31, reliance is placed on the said provision. There is a specific contention raised to the effect that the market value of the allotted land has not been fixed in accordance with law. We find that the contentions regarding the failure to make proper valuation in respect of the Schedule Land and the violation of the Bulk Allotment Rules, inasmuch as there was a failure on the part of the State Government in not recording reasons in writing, as required by the proviso to sub-rule (1) of Rule-7 of the Bulk Allotment Rules have been specifically pleaded in the writ petition.<br>16. It is an admitted position that the Schedule Land was acquired by the BDA for public purpose after paying compensation to the landowners. Therefore, the Schedule Land being a valuable public property was vesting in the BDA which is an agency and instrumentality of the State being a body corporate created under the BDA Act, 1976. Any land which has been vested in the Government or public authorities like the BDA should be dealt with only by following a fair and transparent procedure. As far as law regarding disposal of the public property is concerned, the law is well settled. At this juncture,  we may refer only one leading decision of the Apex Court rendered in the case of Akhil Bhartiya Upbhokta Congress – vs- State of Madhya Pradesh and another</h4><h4>66. We may add that there cannot be any policy, much less, a rational policy of allotting land on the basis of applications made by individuals, bodies, organisations or institutions dehors an invitation or advertisement by the State or its agency/ instrumentality. By entertaining applications made by individuals, organisations or institutions for allotment of land or for grant of any other type of largesse the State cannot exclude other eligible persons from lodging competing claim. Any allotment of land or grant of other form of largesse by the State or its agencies/instrumentalities by treating the exercise as a private venture is liable to be treated as arbitrary, discriminatory and an act of favouritism and/or nepotism violating the soul of the equality clause embodied in Article 14 of the Constitution.<br>67. This, however, does not mean that the State can never allot land to the institutions/organisations engaged in educational, cultural, social or philanthropic activities or are rendering service to the society except by way of auction.  Nevertheless, it is necessary to observe that once a piece of land is earmarked or identified for allotment to institutions/organisations engaged in any such activity, the actual exercise of allotment must be done in a manner consistent with the doctrine of equality. The competent authority should, as a matter of course, issue an advertisement incorporating therein the conditions of eligibility so as to enable all similarly situated eligible persons, institutions/organisations to participate in the process of allotment, whether by way of auction or otherwise. In a given case the Government may allot land at a fixed price but in that case also allotment must be preceded by a wholesome exercise consistent with Article 14 of the Constitution”.<br>(underlines supplied)<br>17. In the case on hand, we have carefully perused the proceedings of the meeting dated 14th February, 2008 of the BDA and the resolution passed therein, which is produced as Annexure-R5 along with the statement of objections filed by the BDA.  In the said proceedings, a decision was taken by the  BDA to allot the Schedule Land to the 4th respondent under the Bulk Allotment Rules. It is not the case of the BDA that a public notice was given inviting the applications for bulk allotment from the societies   falling under any categories covered by clauses (iv) and (v) of Section 38-B of the BDA Act. Without inviting applications  for bulk  allotment, the case  of the  4th  respondent was directly considered. While making bulk allotment to the 4th respondent, the procedure followed by the BDA shows  that there was lack of transparency and no process which is fair and transparent was followed by the BDA. The Apex Court in the case of Akhil Bhartiya Upbhokta Congress (supra) categorically held that once a piece of land is earmarked or identified for allotment to institutions/organisations engaged in any such activity, the actual exercise of allotment must be done in a manner consistent with the doctrine of equality. The competent authority should, as a matter of course, issue an advertisement incorporating therein the conditions of eligibility  so as to enable all similarly situated eligible persons/institutions/ organisations to participate in the process of allotment, whether by way of auction or otherwise. In a given case, the Government may allot land at a concessional price, but in that case also the allotment must be preceded by a fair process consistent with Article 14 of the Constitution of India.  Thus, as held by the  Apex Court, the action of the BDA being discriminatory and arbitrary, the same will amount to violation of Article 14 of the Constitution of India.<br>18. Now we turn to the second issue as to whether the approval allegedly accorded by the State Government under purported exercise of its powers and by following the procedure contemplated under the proviso to sub-rule (1) of Rule 7 of the Bulk Allotment Rules. We have perused the said letter dated 19th April 2006 sent by the Government which is at Annexcure- R4 to the statement of objections filed by the BDA. It is claimed to be permission accorded by the State Government. uthority may choose land, depending upon the availability of land”.<br>19. Firstly, this letter does not record any reasons for according approval for allotment of the bulk land having an area exceeding five acres to the 4th respondent. Secondly, even the area of the land permitted to be allotted to the 4th respondent is not mentioned. Thirdly, the approval accorded by the State Government is not qua a particular land as the details of the  land to be allotted to the 4th respondent are not incorporated in the said letter. But it is a general approval granted. The proviso to sub-rule (1) of Rule-7 of the Bulk Allotment Rules carves out an exception to sub-rule (1) which lays down a mandatory rule that if the area is more than five acres, the State Government’s prior approval for the reasons to be recorded in writing is necessary. Thus, the benefit of the exception can be taken provided that the condition laid down under the proviso to sub- rule (1) of Rule-7 of the Bulk Allotment Rules is fulfilled. The condition was of the State Government recording the reasons in writing for granting approval for allotment of land exceeding five acres but not exceeding one hundred acres. As, no reasons in writing have been admittedly recorded by the Government in its order dated 19th April, 2006, the bulk allotment of the land made by the BDA in favour of the 4th Respondent is completely illegal being manifestly arbitrary and the same will have to be held violative of Article 14 of the Constitution of India.<br>20. As regards fixation of the market value of the allotted land is concerned, the petitioners have not placed on record any material to show what was the exact market value was on the relevant date. Only the details of the components which are required to be taken into consideration have been placed record.<br>21. Thus, on consideration of the above materials, the scenario which emerges is that the allotment made by the BDA in favour of the 4th respondent appears to be completely illegal. However, only on the ground of non-joinder of 759 members (allottees of the sites), this Court cannot grant any reliefs sought in this petition. Moreover, the purchasers/members/allottees may have created third party interests.<br>22. We must place on record our appreciation for excellent assistance rendered by the learned counsel appointed as amicus curiae. <br>23.<span style=\"white-space:pre\">	</span>Hence, we pass the following:<br>O R D E R<br>i)<span style=\"white-space:pre\">	</span>The writ petition is rejected only on the ground of non-joinder of more than 759 members of the BDA Employees’ Welfare Association (4th respondent) who are allottees of the sites formed out of the Schedule Land;<br>ii)<span style=\"white-space:pre\">	</span>There shall be no order as to the costs.<br><br><br></h4>', '3c57c6819fb3c2734b0ac617bed33629.PNG', '3786d614298d38c7a431ad8cc86387d9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-15', 1, '', '', '2021-04-16 01:27:00', '2021-04-16 01:38:12'),
(690, 'SVcCGLhPAQW1IDvfiPY1vLuX6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Right to property is not only constitutional or statutory right but also a human right. State cannot usurp or encroach property of a citizen without paying compensation. Supreme Court. 2 November 2012', '<h4>Tukaram Kana Joshi v. Maharashtra Industrial Development Corporation and others.<br>Civil Appeal 7780 of 2012 decided on 2 November 2012.<br>Justice B.S.Chauhan and Justice S. Khehar<br>Judgment Link: <a href=\"https://main.sci.gov.in/jonew/judis/39714.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/39714.pdf</a><br>Reported in (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491 : 2012 SCC OnLine SC 915 at page 357<br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: Leave granted. This appeal has arisen from the impugned judgment and order dated 14-11-2011, passed by the High Court of Bombay in Tukaram Kana Joshi v. MIDC [WP No. 9513 of 2009, decided on 14-11-2011 (Bom)] , by way of which the High Court has rejected the claim of the appellants for any compensation due to them for the land taken by the respondent authorities, without resorting to any procedure prescribed by law.<br>8. The appellants were deprived of their immovable property in 1964, when Article 31 of the Constitution was still intact and the right to property was a part of fundamental rights under Article 19 of the Constitution. It is pertinent to note that even after the right to property ceased to be a fundamental right, taking possession of or acquiring the property of a citizen most certainly tantamounts to deprivation and such deprivation can take place only in accordance with the “law”, as the said word has specifically been used in Article 300-A of the Constitution. Such deprivation can be only by resorting to a procedure prescribed by a statute. The same cannot be done by way of executive fiat or order or administration caprice. In Jilubhai Nanbhai Khachar v. State of Gujarat [1995 Supp (1) SCC 596 : AIR 1995 SC 142] , it has been held as follows: (SCC p. 627, para 48)<br>“48. In other words, Article 300-A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There [is] no deprivation without [due] sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. In other words, if there is no law, there is no deprivation.”<br><b style=\"background-color: rgb(255, 255, 0);\">9. The right to property is now considered to be not only a constitutional or a statutory right but also a human right. Though, it is not a basic feature of the Constitution or a fundamental right. Human rights are considered to be in realm of individual rights, such as the right to health, the right to livelihood, the right to shelter and employment, etc. Now however, human rights are gaining an even greater multifaceted dimension. The right to property is considered very much to be a part of such new dimension</b>. (Vide Lachhman Dass v. Jagat Ram [(2007) 10 SCC 448] , Amarjit Singh v. State of Punjab [(2010) 10 SCC 43 : (2010) 4 SCC (Civ) 29] , State of M.P. v. Narmada Bachao Andolan [(2011) 7 SCC 639 : (2011) 3 SCC (Civ) 875 : AIR 2011 SC 1989] , State of Haryana v. Mukesh Kumar [(2011) 10 SCC 404 : (2012) 3 SCC (Civ) 769 : AIR 2012 SC 559] and Delhi Airtech Services (P) Ltd. v. State of U.P. [(2011) 9 SCC 354 : (2011) 4 SCC (Civ) 673 : AIR 2012 SC 573] )<br>10. In the case at hand, there has been no acquisition. The question that emerges for consideration is whether, in a democratic body polity, which is supposedly governed by the rule of law, the State should be allowed to deprive a citizen of his property, without adhering to the law. The matter would have been different had the State pleaded that it has right, title and interest over the said land. It however, concedes to the right, title and interest of the appellants over such land and pleads the doctrine of delay and laches as grounds for the dismissal of the petition/appeal.<br>11. There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. The functionaries of the State took over possession of the land belonging to the appellants without any sanction of law. The appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode. There is a distinction, a true and concrete distinction, between the principle of “eminent domain” and “police power” of the State. Under certain circumstances, the police power of the State may be used temporarily, to take possession of property but the present case clearly shows that neither of the said powers have been exercised. A question then arises with respect to the authority or power under which the State entered upon the land. It is evident that the act of the State amounts to encroachment, in exercise of “absolute power” which in common parlance is also called abuse of power or use of muscle power. To further clarify this position, it must be noted that the authorities have treated the landowner as a “subject” of medieval India, but not as a “citizen” under our Constitution.<br>12. The State, especially a welfare State which is governed by the rule of law, cannot arrogate itself to a status beyond one that is provided by the Constitution. Our Constitution is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third-party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience.<br>17. Depriving the appellants of their immovable properties was a clear violation of Article 21 of the Constitution. In a welfare State, statutory authorities are bound, not only to pay adequate compensation, but there is also a legal obligation upon them to rehabilitate such persons. The non-fulfilment of their obligations would tantamount to forcing the said uprooted persons to become vagabonds or to indulge in anti-national activities as such sentiments would be born in them on account of such ill-treatment. Therefore, it is not permissible for any welfare State to uproot a person and deprive him of his fundamental/constitutional/human rights, under the garb of industrial development.<br>18. The appellants have been deprived of their legitimate dues for about half a century. In such a fact situation, we fail to understand for which class of citizens the Constitution provides guarantees and rights in this regard and what is the exact percentage of the citizens of this country, to whom constitutional/statutory benefits are accorded, in accordance with the law.<br>22. Be that as it may, ultimately, good sense prevailed, and the learned Senior Counsel appearing for the State came forward with a welcome suggestion stating that in order to redress the grievances of the appellants, the respondent authorities would notify the land in dispute under Section 4 of the Act within a period of 4 weeks from today. Section 6 declaration will be issued within a period of one week thereafter. As the appellants have full notice and information with respect to the proceedings, publication in the newspapers either of the notification or of the declaration under the Act are dispensed with. Notice under Section 9 of the Act will be served within a period of 4 weeks after the publication of Section 6 declaration and award will be made within a period of three months thereafter. The deemed acquisition proceedings would thus be concluded most expeditiously. Needless to say, the market value of the land in dispute will be assessed as it prevails on the date on which the Section 4 notification is published in the Official Gazette. Payment of compensation/award amount will be made to the claimants/persons interested immediately thereafter, along with all statutory benefits. The appellants shall be entitled to pursue the statutory remedies available to them for further enhancement of compensation, if so desired.<br>23. Before parting with the case, we appreciate the gesture shown by the State Government for coming forward with a most appropriate suggestion to enable us to resolve the controversy involved herein, in a manner so cordial and sympathetic.<br>24. With these observations, the appeal stands disposed of.</h4><div><br></div>', '4abcccdfbd95d992b02b72275bd7d09a.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2012-11-02', 1, '', '', '2021-04-16 17:35:54', '2022-04-07 02:47:36'),
(691, 'VoFsZ2cIXS2lcDePQJnM3OTah', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Service of summons in one complaint forming part of a transaction shall be deemed service in respect of all cheques/complaints before same court relating the said transaction. Supreme Court. 16 April 2021', '<h4>Suo Motu Writ Petition (Crl) 2 of 2020 in Re: Expeditious Trial of Cases Under Section 138 of N.I. Act, 1881.</h4><h4>Chief Justice S.A. Bobde, Justice L.Nageswara Rao, Justice. B.R. Gavai, Justice A.S. Bopanna and Justice S.Ravindra Bhat <br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/9631/9631_2020_31_501_27616_Judgement_16-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/9631/9631_2020_31_501_27616_Judgement_16-Apr-2021.pdf</a><br>4. This gargantuan pendency of complaints filed under Section 138 of the Act has had an adverse effect in disposal of other criminal cases.<br>5. The situation has not improved as courts continue to struggle with the humongous pendency of complaints under Section 138 of the Act.<br>6. The learned Amici Curiae identified seven major issues from the responses filed by the State Governments and Union Territories which are as under:<br>a) Service of summons b) Statutory amendment to Section 219 of the Code c) Summary trials d) Attachment of bank accounts e) Applicability of Section 202 of the Code f) Mediation g) Inherent jurisdiction of the Magistrate<br>7. Service of summons on the accused in a complaint filed under Section 138 of the Act has been one of the main reasons for the delay in disposal of the complaints.<br>24. The upshot of the above discussion leads us to the following conclusions: </h4><h4>1) The High Courts are requested to issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 of the Act from summary trial to summons trial. </h4><h4>2) Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the court. </h4><h4>3) For the conduct of inquiry under Section 202 of the Code, evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses. </h4><h4>4) We recommend that suitable amendments be made to the Act for provision of one trial against a person for multiple offences under Section 138 of the Act committed within a period of 12 months, notwithstanding the restriction in Section 219 of the Code. </h4><h4>5) The High Courts are requested to issue practice directions to the Trial Courts to treat service of summons in one complaint under Section 138 forming part of a transaction, as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said transaction. </h4><h4>6) Judgments of this Court in Adalat Prasad v. Rooplal Jindal and Others (2004) 7 SCC 338 and Subramanium Sethuraman v. State of Maharashtra & Anr (2004) 13 SCC 324) have interpreted the law correctly and we reiterate that there is no inherent power of Trial Courts to review or recall the issue of summons. This does not affect the power of the Trial Court under Section 322 of the Code to revisit the order of issue of process in case it is brought to the court’s notice that it lacks jurisdiction to try the complaint.</h4><h4>7) Section 258 of the Code is not applicable to complaints under Section 138 of the Act and findings to the contrary in Meters and Instruments (supra) do not lay down correct law. To conclusively deal with this aspect, amendment to the Act empowering the Trial Courts to reconsider/recall summons in respect of complaints under Section 138 shall be considered by the Committee constituted by an order of this Court dated 10.03.2021. </h4><h4>8) All other points, which have been raised by the Amici Curiae in their preliminary report and written submissions and not considered herein, shall be the subject matter of deliberation by the aforementioned Committee. Any other issue relating to expeditious disposal of complaints under Section 138 of the Act shall also be considered by the Committee.<br><br><br></h4>', '9d69c0bc68f12893977257d1a5bcf391.jpg', '3f452c68c3dfc033076320e98fb004a2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-16', 1, '', '', '2021-04-17 02:10:52', '2021-04-17 02:14:08');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(692, '2CPZ0tUINup8RpmsIVKtPRGvm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Section 138. Cr.P.C. Section 202. Inquiry by Magistrate before issuance of summons to accused residing outside jurisdiction of court. Even evidence of complainant witnesses can be taken by affidavit. Supreme Court. 16:4:2021', '<h4 style=\"line-height:normal\">Suo Motu Writ Petition (Crl) 2 of 2020 in Re: Expeditious Trial of Cases Under Section 138 of N.I. Act, 1881.</h4><h4 style=\"line-height:normal\">Chief Justice S.A. Bobde, Justice L.Nageswara Rao, Justice. B.R. Gavai, Justice A.S. Bopanna and Justice S.Ravindra Bhat </h4><h4 style=\"line-height:normal\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/9631/9631_2020_31_501_27616_Judgement_16-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/9631/9631_2020_31_501_27616_Judgement_16-Apr-2021.pdf</a></h4><h4 style=\"line-height:normal\"><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraph</span>: 12. Another point that has been brought to our notice relates to the interpretation of Section 202 (2) which stipulates that the Magistrate shall take evidence of the witness on oath in an inquiry conducted under Section 202 (1) for the purpose of issuance of process. Section 145 of the Act provides that the evidence of the complainant may be given by him on affidavit, which shall be read in evidence in any inquiry, trial or other proceeding, notwithstanding anything contained in the Code. Section 145 (2) of the Act enables the court to summon and examine any person giving evidence on affidavit as to the facts contained therein, on an application of the prosecution or the accused. It is contended by the learned Amici Curiae that though there is no specific provision permitting the examination of witnesses on affidavit, Section 145 permits the complainant to be examined by way of an affidavit for the purpose of inquiry under Section 202. He suggested that Section 202 (2) should be read along with Section 145 and in respect of complaints under Section 138, the examination of witnesses also should be permitted on affidavit. Only in exceptional cases, the Magistrate may examine the witnesses personally. Section 145 of the Act is an exception to Section 202 in respect of examination of the complainant by way of an affidavit. There is no specific provision in relation to examination of the witnesses also on affidavit in Section 145. It becomes clear that Section 145 had been inserted in the Act, with effect from the year 2003, with the laudable object of speeding up trials in complaints filed under Section 138. If the evidence of the complainant may be given by him on affidavit, there is no reason for insisting on the evidence of the witnesses to be taken on oath. On a holistic reading of Section 145 along with Section 202, we hold that Section 202 (2) of the Code is inapplicable to complaints under Section 138 in respect of examination of witnesses on oath. The evidence of witnesses on behalf of the complainant shall be permitted on affidavit. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses. In suitable cases, the Magistrate can examine documents for satisfaction as to the sufficiency of grounds for proceeding under Section 202.</h4><div><br></div><h4 style=\"margin: 7.5pt 0cm; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><o:p></o:p></h4><p>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n</p><p class=\"MsoNormal\"><o:p></o:p></p>', 'f87ad1d68fb52d856905c5286be3bb78.PNG', 'e73141f2305cbf005db8e5172e6a00c0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-16', 1, '', '', '2021-04-17 02:45:17', '2021-04-17 02:50:24'),
(693, 'kNN4tUaMUDx1bDzYZy8rYFrmC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mareva Injunction. Court can grant mareva injunction where recovery of amounts outstanding is a long drawn process and transfer of assets by defendant defeats the claim of the plaintiff. Karnataka High Court. 17 April 2021', '<h4>Bank of Baroda vs Dr. Bavaguthu Raghuram Shetty. </h4><h4>Commercial Appeal 26 of 2020 and connected matter decided on 17 April 2021. </h4><h4>Chief Justice Abhay S Oka and Justice Sachin Shankar Magadum. Judgment Link:<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/378877/1/COMAP26-20-17-04-2021.pdf\" target=\"_blank\">&nbsp;http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/378877/1/COMAP26-20-17-04-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:&nbsp;By Commercial Appeal No.26 of 2020 preferred under the provisions of Section 13 (1A) of the Commercial Courts Act, 2015 read with Rule 1 (r) of Order XLIII of the Code of Civil Procedure, 1908 (for short ‘the said Code’), the appellant therein who is the original plaintiff has taken an exception to the judgment and order dated 28th August 2020 passed by the learned Judge of the Commercial Court at Bengaluru. By the said judgment and order, I.A.Nos.I and II filed by the plaintiff Bank in Commercial Suit being Commercial Original Suit No.1 of 2020 have been partly allowed. The appeal takes an exception to that part of the impugned judgment and order by which a part of the relief claimed on I.A.Nos.I and II was rejected. Commercial Appeal Nos.27 and 28 of 2020 have been preferred by the appellants therein who are the original defendants for challenging the same judgment and order. For the sake of convenience, the parties are hereafter referred by their status before the Trial Court, that is to say, plaintiff and defendants<br>2. The first defendant is a businessman who is stated to have multiple businesses spread over the world including India, United Arab Emirates, United Kingdom and United States of America&nbsp; etc. The second defendant is the wife of the first defendant and both the defendants are the residents of City of Bengaluru. It is pleaded in the plaint that the first defendant controls various companies/entities, having their branches at Abu Dhabi, Oman and Mumbai etc. It is stated in the plaint that the plaintiff bank&nbsp; has sanctioned various credit facilities/loans to the said companies and to the said entities. The details&nbsp; thereof&nbsp; have been set out in paragraph 5 of the plaint. Clean demand loan facility has also been extended by the plaintiff to the first defendant. The case made out in the plaint is that as on 5th May, 2020, the plaintiff had advanced an aggregate sum of Indian Rs.2077,44,00,000 (Rupees Two Thousand Seventy Seven Crores and Forty Four Lakhs) to the first defendant and the companies/entitles controlled by him.<br>7. As the defendants committed breaches of the Negative Lien Letter and failed to secure the interest of the plaintiff, a legal notice dated 3rd May 2020 was served by the plaintiff on the defendants on 3rd May, 2020. A reply dated 6th May 2020 to the said notice was issued by the first defendant from which it was clear that he has refused to comply with his obligations. Therefore, the subject suit being Commercial Original Suit No.1 of 2020 was filed by the plaintiff before the Commercial Court at Bengaluru.&nbsp;<br>9. The aforesaid prayer in I.A.No.I was against the first defendant. In I.A.No.II filed by the plaintiff, there are more or less identical prayers sought against the second defendant in respect of item Nos 14 and 15. However, there is no injunction claimed in respect of her other assets save and except the immoveable properties in respect of which she has given undertaking.&nbsp;<br>10. The learned counsel appearing for the plaintiff has taken us to the pleadings and documents on record. His basic submission is that the applications for interim relief being I.A.Nos.1 and 2 ought to have allowed in its entirety. He submitted that the Trial Court accepted that the first defendant and companies/entities controlled by him had borrowed a sum of Rs.2077,44,00,000/- (Two Thousand Seventy Seven Crores and Forty Four Lakhs) from the plaintiff as on 5th May, 2020 and as on the day, the first defendant and companies/entities controlled by him were liable to pay to the plaintiff more than Rs.1900 Crores. He submitted that the learned Judge of the Commercial Court has taken a very hyper technical view by observing that with respect to other properties and assets, there is no schedule incorporated in the pleadings and the details of the shares, mutual funds, fixed deposits held in the name of the defendants were not mentioned. He submitted that the Rule 11 of Karnataka Civil Rules of&nbsp; Practice could not have come in the way of considering the prayer in both the applications. He submitted that the learned Judge of the Commercial Court has appreciated that a sum of Rs.1912 Crores of public exchequer was at stake. He submitted that the first defendant had refused to comply with his obligations under the guarantees and the Negative Lien Letter. He urged&nbsp; that even the second defendant did not comply with the Negative Lien Letter by executing a mortgage. He submitted that the learned Trial Judge ignored that a separate interlocutory application was filed by the plaintiff directing the first defendant to disclose his assets and properties. He submitted that even after recording a prima facie finding that the defendants have not complied with their undertakings under the Negative Lien Letter, the learned Trial Judge has rejected a part of the prayers for interim relief.<br>CONSIDERATION OF SUBMISSIONS: 14. We have given careful consideration to the submissions. Firstly, it is necessary to refer the decision of the Court of Appeal in the case of Mareva Compania (supra). The principles governing grant of an injunction which subsequently became known as “Mareva injunction” have been laid down in the said decision by Lord Denning MR. The relevant portion of the said judgment reads thus:</h4><h4 style=\"margin-left: 25px;\">“There is only one qualification to be made. The court will not grant an injunction to protect a person who has no legal or equitable right whatever. That appears from North London Railway Co v Great Northern Railway Co. But, subject to that qualification, the statute gives a wide general power to the courts. It is well summarized in Halsbury’s Laws of England: ‘…..now, therefore, whenever a right, which can be asserted either at law or in equity, does exist, then, whatever the previous practice may have been, the Court is enabled by virtue of this provision, in a proper case, to grant an injunction to protect that right.’<br>In my opinion that principle applies to a creditor who has a right to be paid the debt owing to him, even before he has established his right by getting judgment for it. If it is appears that the debt is due and owing, and there is a danger that the debtor may dispose of his assets so as to defeat it before judgment, the court has jurisdiction in a proper case to grant an interlocutory judgment so as to prevent him disposing of those assets.”</h4><h4>33. The first prayer in the plaint is for specific performance of the terms of the Negative Lien Letter. Prayer (3) is for permanent injunction restraining the defendants from alienating, selling or transferring the sixteen properties mentioned in the schedule to the Negative Lien Letter. Prayer (5) which we have&nbsp; quoted above, seeks injunction restraining the defendants from alienating or creating third party rights in respect of the assets of the first defendant, his properties, movable or immovable, shares, mutual funds, money deposited in the bank accounts and fixed deposits are concerned. As noted earlier, the first defendant has agreed under the guarantee documents not to alienate, transfer or sell any of his properties and investments without prior consent of the plaintiff bank till the obligations under the guarantee are discharged or till guarantee is cancelled.<br>34. Considering the response given to the legal notice sent by the plaintiff, prima facie it appears that the first defendant has declined to disclose his other assets. The fourteen properties listed in the schedule to the said letter of Negative Lien are of the first defendant and two are of the second defendant. They have not come forward to execute a mortgage in respect of the said sixteen properties. The question is whether they can be&nbsp; permitted to dispose of these properties. Whether the Negative Lien Letter can be specifically enforced or not is a question to be decided at the time of trial. Without performing their obligations under the said Negative Lien Letter of creating a mortgage in respect of sixteen properties, there is every likelihood of the defendants alienating the same for defeating the claim of the plaintiff. Moreover, the first defendant has undertaken not to sell, transfer or alienate his other assets without the approval of the plaintiff bank. Therefore, the immoveable assets of the defendants as mentioned in the Schedule in the plaint and other assets of the first defendant will have to be protected by grant of&nbsp; a temporary injunction.<br>35. The recovery of amounts outstanding will be a long drawn process. Therefore, the aforesaid assets of the defendants&nbsp; cannot be allowed to be transferred or alienated without the leave of the Court.<br>36. The apprehension expressed in the plaint is that the defendants may dispose of their assets so that the same would disappear by the time a judgment is delivered against them or against the entities/companies controlled by the first defendant in recovery suit.<br>39. The submission of the learned senior counsel appearing for the defendants was that by relying upon examples of certain businessmen who have fled abroad with a view to avoid their liabilities, defendants are being targeted. He submitted that even look out notices have been issued against them. All this is irrelevant to decide the issues involved in the appeal.<br>40. The first defendant by his reply dated 6th May 2020 virtually declined to comply with the requisitions in the legal notice sent on 3rd May 2020. Prima facie, it is the obligation of the first defendant&nbsp; to disclose the details of all other movable and&nbsp; immovable properties held by him. He is under an obligation not to sell or transfer the same without consent of the plaintiff bank. Thus, there&nbsp; is no manner of doubt that a prima facie case was established by the plaintiff. It is obvious that considering the extent of amounts payable by the companies/entities of the first defendant and the first defendant in his capacity of the borrower and guarantor, the balance of convenience is in favour of the plaintiff. It goes without saying that irreparable loss will be caused to the plaintiff which is nationalised bank, if injunction is not granted.<br>41. Hence, the appeal preferred by the Bank must succeed and the appeals of the original defendants must fail. Hence, injunction&nbsp; as prayed will have to be granted in both I.A.No.I and I.A.No.II. Hence, we pass the following:<br>ORDER<br>Commercial Appeal Nos.27 and 28 of 2020 are dismissed; Commercial Appeal No.26 of 2020 is allowed;<br>There will be temporary injunction against the defendants in terms of prayers made in I.A. Nos. I and II of Commercial Original Suit No. 1 of 2020. However, as regards the other assets (other&nbsp; than immoveable property described in item Nos 1 to 13 and 16 of plaint schedule) held by the first defendant, it will be always open for the first defendant to apply to the plaintiff Bank for grant of permission to transfer the same;<br>There will be no order as to costs.<br><span style=\"background-color: rgb(255, 255, 0);\"><b style=\"\"><br>Also see: A note on Mareva Injunction:&nbsp;</b></span></h4><h4><span style=\"background-color: rgb(255, 255, 0);\"><b>https://dakshalegal.com/articles/actionView/A-note-on-Mareva-Injunction/rpOh3iUJXzkRhNkCApFqFWIwR</b><br></span></h4>', '985a442dc6d52b394568fb84b5827ca6.PNG', 'e4e8556fb8d0bbeb21cfbe366978740e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-17', 1, '', '', '2021-04-17 23:50:02', '2021-04-17 23:53:15'),
(694, 'rpOeQqJOk00Pivwdz6ZICaNyd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act, 1996. Erroneous part of an award can be separated under proviso to section 34(2) instead of ordering fresh arbitration. Karnataka High Court. 30 March 2021', '<h4>M/s. Prabhudev & Company and another vs Vasudev and another. </h4><h4>Miscellaneous First Appeal 101849 of 2017 (APIM) decided on 30 March 2021</h4><h4>Justice Sreenivas Harish Kumar and Justice E.S.Indiresh. <br>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/378501/1/MFA101849-17-30-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/378501/1/MFA101849-17-30-03-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: This is an appeal under Section 37(1 ) of the Arbitration and Conciliation Act, 1996 (for short, ‘the Act’) impugning the judgment dated 21st February, 2017 in Arbitration Suit No.2 /2015 on the file of Principal District Judge, Dharwad. <br>2. For convenience sake, the parties are referred with respect to their rank before the Arbitrator. The 1st petitioner is a registered partnership firm ( for short ‘firm’) with its partners being the 2nd petitioner, the respondent and some others who are not made parties in  the arbitration dispute. In the bank account of the firm at Syndicate Bank, KRB Branch, Belagavi City, there was a deposit of `48 lakhs. The respondent approached the second petitioner for the first time and requested him to  pay an amount of `13,64 ,520/- from the bank account of the firm as his cousin namely Suresh was due to pay a certain sum of money to KSFC  which  had  initiated recovery proceedings. The respondent assured of repaying this amount to the firm. The  2nd  petitioner  issued  a cheque dated 19 .08.2006 of the firm directly to KSFC and cleared the dues of the respondent’s cousin. Again, in the month of May 2007, the respondent sought financial assistance of `12 ,74,080 /- for the sake of his cousin as he was due to repay that amount to Syndicate Bank,  Kittur. The respondent assured of repayment of this amount also. Therefore the 2nd petitioner issued a cheque of the firm in the name of Hotel Gajaraj Palace belonging  to  respondent’s cousin. Thus, from the firm’s account totally an amount of `26,35,000 /- was paid for discharging the liability of the respondent’s cousin. <br>3. Then the respondent himself wanted an amount of `15,03 ,400/- to clear his liability at Syndicate Bank, Dharwad and requested petitioner No.2 to make  payment  of this amount from the firm’s account. This amount was paid, but later on the 2nd petitioner came to know that the respondent, instead of clearing the bank dues,  made  use of the money for purchasing a car. In all the respondent  was supposed to repay `46,32 ,170/- to the firm  on  account of two loans made by him on behalf of his cousin and the other for himself. As the respondent failed  to  repay the amount inspite of repeated requests  and  issuance of legal notices, pursuant Arbitration Clause  in  the partnership deed, the petitioners raised a  dispute before the Arbitrator.<br>4. The learned arbitrator, after recording evidence of the witnesses from both sides and going through the documents marked during recording of oral  evidence,  came to conclusion that the respondent and  his  cousin owed an amount of `46,32 ,170/- and directed the respondent as also his cousin to repay the said sum to the firm with interest at the rate of 18% per annum from the date of claim petition till the date of  realization and costs  of `2,50 ,800/-. Aggrieved by this award, the respondent approached the District Court by initiating arbitration suit under Section 34 of the Act.<br><b style=\"background-color: rgb(255, 255, 0);\">5. The District Court found that since the cousin of the respondent was not a party before the arbitrator, fastening of the liability on a  person who was not a  party  in the arbitration proceeding was bad in the light of the decision of the Supreme Court in  the  case  of  ESSR  Oil V/ s Hindustan Shipyard Limited (AIR 2015 SC 3116), and set aside the award passed by the arbitrator giving liberty to the parties for re- arbitration. Aggrieved by this judgment, the petitioners have preferred this appeal. </b><br></h4><h4>10. Given a plain reading to the relief that the petitioners have claimed, it becomes very clear that they have sought a direction to the respondent only. What is stated is that the respondent may be directed to pay the amounts received by the respondent and his cousin with interest at the rate of 18% per annum to the petitioners. Actually no relief is claimed against  the  respondent’s cousin who is not a party to the arbitration proceedings. Even if the claim petition read, it becomes further clear it was at the instance of the respondent, the  petitioners  made payment to the KSFC as also the Syndicate Bank for clearing the dues of the respondent’s cousin. The respondent also borrowed money in connection with his liability. Therefore, the borrower is respondent only and  not his cousin. Though he might have sought financial assistance for his cousin, it is not possible to ascribe a meaning that respondent’s cousin was also  a  borrower from the petitioners. The arbitrator has appreciated the facts and evidence before him and  we  cannot  interfere with the factual findings, however we may consider the mistake committed by the arbitrator in directing the respondent’s cousin also to repay the amount. The District Court also missed this aspect of the matter and mainly concentrating on the point that the award directs a person who was not a party in the arbitration proceedings, it has expressed an opinion that the award was against  the  public policy as envisaged in Explanation 1 to Section 34. We are of the opinion that the District Court has also gone wrong.<br>11. It is true that the co-ordinate  bench  of  this court in the case of Smt. Padma Mahadev (supra) has expressed an opinion that the errors in  the award cannot  be  corrected while deciding application under Section 34  of the Act and that the parties may be directed to re-arbitrate. But the Hon’ble Supreme Court in the case of Ircon International ( supra) has clearly held as under:</h4><h4 style=\"margin-left: 25px;\">“30. …The word “set aside” cannot be construed as to ‘ only to set aside an award wholly’, as it will neither be  permissible  nor  proper for the Court to add these words to the language of Section which had vested discretion in the Court. Absence of a specific language further supported by the fact that the very purpose and object of the Act is expeditious disposal of the arbitration cases by not delaying the proceedings before the Court  would  support our view otherwise the object of  Arbitration  Act would stand defeated and frustrated.</h4><h4 style=\"margin-left: 25px;\">31. Rival submissions have been made before us   with   regard  to   operation  and   effect  of proviso to Sub- clause (iv)<span style=\"white-space:pre\">	</span>of Clause (a) of Section 34 . According to the appellants the proviso applies to the entire section while according to the respondent, its operation is limited to sub-clause ( iv) alone. There seems  to be some merit in the contention of the respondent inasmuch as the language of the proviso is directly referable to the  section  itself and, thus, must take its colour from the principal section viz. 34(2 )(iv). A  reading of the proviso shows that where severability is possible, the court in the class of the cases falling under sub-clause (iv) is expected to set aside the award partially. In other words, a greater obligation is placed upon the court to adopt such an approach when the case in  hand is covered under  the  provisions of  sub- clause ( iv). This contention will not have any adverse effect on the interpretation and scope of Section 34  as  a  whole. It  is  a  settled rule   of interpretation that the statutory provision should be read as a whole to find out the real legislative intent and that provision should be read by keeping in mind the scheme of the Act as well as the object which is sought to be achieved by the Legislation while  enacting such a law. There is  nothing in the proviso or  in the language of Section 34 which has an impact or effect to restrict the power of the court as contemplated under Section 34 read with the opening words of sub- sections (2 ) and (4) of Section 34 of the Act. Est boni judicis ampliare jurisdictionem is a settled canon  of law courts should expand and amplify jurisdiction to achieve the ends of justice and not unnecessarily restrict its discretion particularly when the later approach  would  lead to frustrate the very object of the Act.”</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">12. As has been rightly argued by Sri Shivaraj S.Balloli, appeal under Section 37 of the Act can be considered to be continuation of the proceeding under Section 34 of the Act, and therefore we are of the opinion that in accordance with proviso to Section 34 (2)  (a)  (iv) of the Act, that part of the award fastening the liability on the respondent’ s cousin can be separated as it is apparently and palpably bad. Respondent’s cousin is not  the borrower as we have held already and that the petitioners sought relief only against the respondent. In  this view, respondent’s cousin could not  have  been directed to repay the amount to the  petitioners. Even  if this part is removed and separated, the whole  award  stands as it is without being affected in any way. The District Court ought to have noticed this aspect of the matter. Directing the parties to re-arbitrate serves no purpose, if such a direction is given, as has been held by  the Supreme Court, the very intendment of the Act gets defeated and there is no meaning for the arbitration being treated as an effective alternative redressal mode. </b>Therefore, we pass the following:<br>ORDER<br>Appeal is allowed. The judgment in Arbitration Suit No.2 /2015 on the file of Principal District Judge, Dharwad is set aside. Consequently, the error found in  the arbitrator’s award dated 26 .12.2014 in Arbitration Case No.2 /2011 is corrected, fastening of the liability on the respondent’s cousin is separated and removed. Only the respondent i.e. Sri Vasudev son of Manohar Kalal is directed to repay to the petitioners an amount of `46,32,170/- with interest at  the rate of 18% per annum from the date of claim petition till date of realization with arbitration costs of `2 ,50,800/-.<br><br></h4>', '1d2968a9fc0c7f301ae5aaa6c17baed7.PNG', '8bff7b16645de4ec194ed349a93ebc6a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-30', 1, '', '', '2021-04-18 22:51:30', '2021-04-18 22:56:12');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(695, 'CI4LA7nlTn6X0RdnnPAASS2xr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Sections 82 and 83. Proclamation of an accused to be an absconder is mandatory for the purpose of attachment of the properties of such absconding person. Karnataka High Court.', '<h4>Nithya Shambhavananda@R.Narayanan vs State of Karnataka. </h4><h4>Writ Petition 10076 of 2020 decided on 9 April 2021.&nbsp;</h4><h4>Justice Suraj Govindaraj&nbsp;</h4><h4>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/378872/1/WP10076-20-09-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/378872/1/WP10076-20-09-04-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:&nbsp;1. The petitioner is before this Court seeking for certiorari to stay the order dated 5.6.2020 passed in S.C.No.86/2014 by the III Addl. Sessions Judge, Ramanagara ordering the attachment of the petitioner’s property bearing Survey No.251, Heggadegere village, Bidadi Hobli, Ramanagara Taluk, Bangalore Rural District under Section 83 of the Code of Criminal procedure (Cr.P.C.), confirmed by order dated 29.06.2020 on an application filed by the petitioner under Section 84 of Cr.P.C.<br>2.2. The petitioner allegedly owns and possesses several immovable properties that are situated across the State of Karnataka and Tamil Nadu. The petitioner is stated to be involved in philanthropic activities such as providing skill training and employment for the underprivileged, nurturing the educational and social needs, setting up Goshala, distribution of milk and other dairy products free of cost to children and members of economically weaker sections and deserving sections of the society, etc.<br>2.3.<span style=\"white-space:pre\">	</span>It is contended that one such Goshala Housing more than 300 cows is set up by the petitioner in immovable bearing in Sy.No.251, Heggadegere village, Bidadi Hobli, Ramanagara Taluk, Bangalore Rural District.<br>2.4.<span style=\"white-space:pre\">	</span>In S.C. No. 86/2014, which is pending on the file of the III Addl. Sessions Judge, Ramanagara, the said Judge by way of his order dated 5.6.2020 passed under Section 83 of Cr.P.C. is alleged to have called upon the Deputy Commissioner, Ramanagara District to attach the property bearing Sy.No.251, Heggadegere village, Bidadi Hobli, Ramanagara Taluk, Bangalore Rural District, on the ground that the said property was belonging to one Sheelam Gopal Reddy.<br>2.5.<span style=\"white-space:pre\">	</span>Sheelam Gopal Reddy is accused No.2 in the said case, who had remained absent despite issuance of court notice and order of proclamation against him for the purpose of securing his presence in the said case despite the prosecution being fully aware that the attached property belongs to the petitioner.<br>2.6.<span style=\"white-space:pre\">	</span>It is contended that the aforesaid property came to be vested in the petitioner vide a registered agreement of sale dated 27.6.2018 executed by Sheelam Gopal Reddy, who was the erstwhile owner of the property after receiving a total consideration of Rs.2,25,75,000/- through his son and Power of Attorney Yasaswi Sheelam Reddy.<br>2.12.<span style=\"white-space:pre\">	</span>After hearing the said application dated 18.6.2020, III Addl. District and Sessions Judge vide its order dated 5.6.2020 in S.C.No.86/2014 rejected the said application, confirmed the attachment order and directed the communication of the same to the Deputy Commissioner, Ramanagara District. It is aggrieved by the same that the petitioner is before this Court.<br>3. Sri.C.V.Nagesh, learned Senior counsel instructed by Sri.AjayKadkol, learned counsel for the petitioner submitted as under:<br>3.1. The accused, Sheelam Gopalam Reddy, has not been proclaimed as an absconder. It is only on such proclamation as an absconder that the property of the accused can be sought for attachment.<br>3.2. For the accused to be an absconder, the accused ought not to have appeared before the concerned Court despite service of notice and despite the accused having been given an opportunity to appear before the concerned Court.<br>3.3.<span style=\"white-space:pre\">	</span>In the present case, Sheelam Gopalam Reddy has not been declared or proclaimed as absconding. Hence, without such declaration, the accused Sheelam Gopalam Reddy cannot be said to be absconding, and consequently, no attachment of his property could be made under Section 83 of the Cr.P.C.<br>3.4.<span style=\"white-space:pre\">	</span>Since the accused has not been declared to be absconding, nothing prevented the petitioner from purchasing the property of the accused, and as such, the accused, after conducting due diligence, has purchased the property, and now the petitioner cannot be put to a loss by attaching the property on the ground that the accused is absconding and/or that the property is required to be attached so as to prevail upon the accused to appear before the Court.<br>3.5.<span style=\"white-space:pre\">	</span>Property that does not belong to the accused person cannot be attached in a criminal case for the purpose of securing the appearance of such accused before the trial Court;<br>3.6.<span style=\"white-space:pre\">	</span>That the property having been transferred to the petitioner under a registered agreement of sale whereunder, the entire sale consideration has been received, and possession of the property has been handed over to the petitioner.<br><b style=\"background-color: rgb(255, 255, 0);\">5. Having heard both the counsels, the points that would arise for consideration by this Court are:</b><br>5.1.<span style=\"white-space:pre\">	</span>Who could be declared as a proclaimed offender or a proclaimed absconder?<br>5.2.<span style=\"white-space:pre\">	</span>Whether a proclamation of an accused to be an absconder under Section 82 of the Cr.P.C. is a sine qua non for the purpose of the exercise of rights and/or powers under Section 83 for attachment of the properties of such absconding person or could a property of a person absconding be attached without proclaiming such person as absconding?<br>5.3. When can a property of the accused be attached under Section 83 of the Cr. P.C?<br>5.4. Whether while exercising powers under Section 83 of Cr.P.C, the property which would be attached is required to belong to the accused/absconder?<br>5.5. Would the word ‘belong’ used in Section&nbsp;83 of Cr.P.C mean merely that the property stands in the name of the said accused/absconder or would the interest of any third party in the said property require to be considered?<br>5.6. What is the mode and methodology of attaching the property, is the order of attachment of the property be passed by the concerned Court or can it be delegated to the jurisdictional Deputy Commissioner to attach the property?<br>5.7. Can the agreement holder challenge the attachment on the ground that the agreement holder has an interest in the property, i.e. to say would the mere agreement to sell confer an interest on such a person to lodge a claim or objection to the attachment in terms of Section 84 of Cr.P.C.?<br>5.8. Whether the court passing orders under Section 83 and 84 of Cr.P.C, as also this Court can look into the factum of fraudulent transfer while considering the application under Section 84 of Cr.P.C, or a petition challenging the order passed under Section 84 of Cr.P.C.?<br>5.9. In the event of the dismissal of a claim or objection of such third party, would the third party be required to file a suit in terms of Section 84(4) of the Act, or could such a person approach this Court by way of the writ petition, more so when there is no dispute as regards the agreement entered into by such third party raised<span style=\"white-space:pre\">	</span>by the owner of the property?<br>5.10.<span style=\"white-space:pre\">	</span>Would the alternative remedy under Section 84(4) be an embargo for such a person to approach this Court by way of a writ petition?<br><b style=\"background-color: rgb(255, 255, 0);\">7. Answer to point No.1: Who could be declared as a proclaimed offender or a proclaimed absconder?</b><br>7.1. Section 204(1) of The Code of<span style=\"white-space:pre\">	</span>Criminal Procedure, 1973 (CrPC) states that when the Magistrate who is empowered to take cognisance is satisfied that the case is a:<br>7.1.1. Summons case, then he shall issue a summons for the attendance of the person accused.<br>7.1.2. Warrant case, then he may issue a warrant or a summons to present the accused before the Court at a certain time.<br>7.2. Section 204(5) states that nothing in this section shall affect the provisions of Section 87 of the Code.<br>7.3. Section 87 empowers the Court to issue warrant in lieu of, or in addition to, summons. A Court empowered to issue a summons for the appearance of any person, may issue, after recording its reasons in writing, a warrant for his arrest-<br>7.3.1. if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or<br>7.3.2. if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.<br>7.4. Sometimes even after issuance of a warrant the accused is not served or the accused is not capable of being served, the Court would have to take further steps like proclamation etc., to compel the attendance of the accused.<br>7.5. Many a time, the words “proclaimed offender” and “proclaimed absconder” are used interchangeably, as was done in the present case also during the course of arguments.<br><b style=\"background-color: rgb(255, 255, 0);\">Proclaimed Absconder</b><br>7.6. An examination of Section 82 of Cr.P.C. would indicate that if any Court has a reason to believe that any person against whom a warrant has been issued has absconded or is concealing himself so that such warrant cannot be executed, the Court could publish a written proclamation requiring such person to appear at a specified place, at a specified time. Section 82 also provides for the manner in which such publication could be made, i.e., in the following manner.<br>i. Publicly read in some conspicuous place or village in which such person ordinarily resides;<br>ii. Publicly read in some conspicuous place of the&nbsp; town or&nbsp; village&nbsp; in&nbsp; which&nbsp; such person ordinarily resides;<br>iii. Affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;<br>iv. Affixed to some conspicuous part of the Courthouse;<br>7.7. The Court could also direct the proclamation to be published in a daily newspaper, circulating in the place in which such person ordinarily resides.<br>7.8. Once such a proclamation is published under Subsection (1) of Section 82, and if such person fails to appear at the specified place and time as required by the proclamation, the Court may, after making such enquiry as is required, pronounce him to be an absconder and make a declaration that such a person is&nbsp; a proclaimed absconder.<br><b style=\"background-color: rgb(255, 255, 0);\">Proclaimed Offender</b><br>7.9. The Court<span style=\"white-space:pre\">	</span>may,&nbsp; if it<span style=\"white-space:pre\">	</span>deems fit, declare a person as a ‘proclaimed offender’ under Section 82(4), when a person fails to appear before the Court as required under the proclamation, if the accused is alleged to have committed offences punishable under the following Sections of the Indian Penal Code&nbsp; of 1860 (IPC):</h4><h4>Section 302 – Offence of Murder<br>Section 304– Offense of culpable homicide not amounting to murder.<br>Section 364– Offense of kidnapping or abducting to commit murder.<br>Section 367– Offense of kidnapping or abducting in order to subject a person to grievous hurt, slavery, etc.<br>Section 382– Offense of theft and preparation made for causing death, hurt or restraint in order to the committing of the theft.<br>Section 392– Offense of robbery.<br>Section 393– Offense of attempt to commit robbery.<br>Section 394– Offense of Voluntarily causing hurt in committing robbery.&nbsp;<br>Section 395– Offense of dacoity.<br>Section 396– Offense of dacoity with murder.<br>Section 397– Offense of robbery, or dacoity, with an attempt to cause death or grievous hurt.<br>Section 398– Offense of attempt to commit robbery or dacoity when armed with a deadly weapon.<br>Section 399– Offense of making preparation to commit dacoity.<br>Section 400– Offense of belonging to the gang of dacoits.<br>Section 402– Offense of assembling for the commission of dacoity.<br>Section 436– Offense of mischief by fire or explosive substance with intent to destroy a house, etc.<br>Section 449– Offense of house- trespass in order to commit an offence punishable with death.<br>Section 459– Offense of grievous hurt caused whilst committing lurking house-trespass or house-breaking.<br>Section 360- Offence of Kidnapping from India.<br>7.10.<span style=\"white-space:pre\">	</span>If the offences alleged against such a person are punishable under the above provisions and if such person fails to appear at the specified place and time as required by the proclamation, the Court may, after making such enquiry as is required, pronounce him to be an offender and make a declaration that such a person is a proclaimed offender, as a corollary, unless the person is accused of having committed offences punishable under Section 302, 304, 364, 367, 382, 392 to 400,<br>402, 436, 449, 459 or 460 of the IPC, such person cannot be declared a proclaimed offender.<br><b style=\"background-color: rgb(255, 255, 0);\">7.11. Thus it can be seen that the scope, ambit and purport of a proclaimed offender is only as regards a particular set of offences and not as regards all offences.</b><br><b style=\"background-color: rgb(255, 255, 0);\">7.12. A reading of Section 82(4) would indicate that only if a person is accused of offences mentioned in Section 82(4) than a person could be declared a proclaimed offender.</b><br>7.13.<span style=\"white-space:pre\">	</span>If the person is charged with offences other than those detailed under Section 82(4), he cannot be declared as a proclaimed offender.<br>7.14.<span style=\"white-space:pre\">	</span>I answer point No.1 by holding that the Court could either suo moto or, on an application being made by the prosecutor, issue a proclamation calling upon the accused to appear at a particular time and place, if the accused were not to appear.<br>7.15.<span style=\"white-space:pre\">	</span>If a proclamation is published and the accused were not to appear, the Court could suo motu or on an application being made by the prosecutor declare the accused an absconder.&nbsp;<br>7.16.<span style=\"white-space:pre\">	</span>If the offences are punishable under Section 302, 304, 364, 367, 382, 392 to 400, 402, 436, 449, 459 or 460 of the IPC, he/she can be declared proclaimed offender. Thus a proclaimed absconder is a sub-set of a proclaimed offender.</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">8. Answer to point No.2 Whether a proclamation of an accused to be an absconder under Section 82 of the Cr.P.C. is a sine qua non for the purpose of the exercise of rights and/or powers under Section 83 for attachment of the properties of such absconding person or could a property of a person absconding be attached without proclaiming such person as absconding?</b><br>8.1.<span style=\"white-space:pre\">	</span>The discussion on point no.1 details out the manner in which a person can be proclaimed either as an absconder or an offender.<br>8.2.<span style=\"white-space:pre\">	</span>In terms of Section 83, only the property of the proclaimed person either movable or immovable can be attached. Thus the proclamation under Section 82(3) would be a precondition and/or a sine qua non for the purpose of the exercise of powers under Section 83 of Cr.P.C. for attachment of the properties of such proclaimed person.<br>8.3.<span style=\"white-space:pre\">	</span>As a corollary, if a person is not a proclaimed absconder/offender and/or the process and procedure under Section 82(2) and 82(3) has not been followed, then in that event, the powers under Section 83 cannot be exercised so as to attach the properties of the accused, who has not been proclaimed to be absconding.<br>8.4.<span style=\"white-space:pre\">	</span>The only exception provided is by the proviso to Section 83, whereunder the Court could attach the property of the accused at the time of proclamation itself if the Court is satisfied by an affidavit or otherwise that the said person is about to dispose of the whole or any part of the property or is about the remove the whole or any part of the property from the local jurisdiction of the Court in such cases the attachment of the property could be made simultaneous to the order of proclamation.<br>8.5.<span style=\"white-space:pre\">	</span>Even this exception does not completely do away with the requirement of proclamation inasmuch as the attachment could be made along with the proclamation not before the proclamation.<br>8.6.<span style=\"white-space:pre\">	</span>Apart from the attachment of property, such a proclaimed absconder and or offender would also be amenable to further punishment. Section 174-A in the IPC has been inserted by virtue of the Criminal Law (Amendment) Act&nbsp; of 2005 in terms whereof<br>8.6.1. a proclaimed absconder under section 82(1) of the Cr.P.C, shall be punished with imprisonment for a term that may extend to three years.<br>8.6.2. A proclaimed offender under section 82(4) of the Cr.P.C shall be punished with imprisonment for a term that may extend to seven years along with fine.<br><b style=\"background-color: rgb(255, 255, 0);\">8.7.<span style=\"white-space:pre\">	</span>I answer point No.2 by holding that a proclamation of an accused to be an absconder under Section 82 of the Cr.P.C. is a sine qua non for the purpose of the exercise of rights and/or powers under Section 83 for attachment of the properties of such absconding person.</b><br>8.8.<span style=\"white-space:pre\">	</span>A property of a person absconding cannot be attached without proclaiming such person as absconding, except in the emergent circumstances prescribed in the proviso to Section 83.<br>9. Answer to point No.3: When can a property of the accused be attached under Section 83 of the Cr. P.C?<br>9.1. Section 83 of Cr.P.C deals with the attachment of property of a person absconding.<br>9.2. The Court which had issued a proclamation under Section 82 may for reasons to be recorded in writing, any time after the issuance of proclamation order the attachment of any property movable or immovable or both belonging to the proclaimed person.<br>9.3. The proclamation as regards a proclaimed person under 83(1) can therefore only be traced to Section 82(2), once such proclamation is made as regards a person and such person does not appear before the Court at the specified time and specified place, then such person can be termed as a proclaimed absconder and his property could be attached.<br>9.4. Though there is a difference between a ‘proclaimed absconder’ and ‘proclaimed offender’ for other purposes under the Cr. P.C. For the purposes of attachment of the property, so long as a person is proclaimed the same would be sufficient to attach his property.<br>9.5. The property of the accused who is proclaimed can be attached and later disposed of in order to compel the accused’s appearance in Court. For disobedience of a proclamation the accused would also be liable to be punished under section 174 of the Indian Penal Code. This provision is devised to put additional pressure on the accused by depriving the accused of his/her property, with a view to compel attendance in Court.<br>9.6. The procedure laid down under section 83 has to be followed strictly. Jurisdiction to pass attachment order cannot be assumed unless a proclamation under section 82 of the code has been issued. It may be advisable for the Court to wait for a period of thirty days, to enable the accused to appear in terms of the proclamation. The words at any time after the issue of proclamation are not to be interpreted in isolation. The key for gathering the intention of the lawmakers is to be found in section 82 of the code. Section 82 and section 83 are to be read in harmony. Thus, except in cases covered by the proviso to section 82(1) the attachment order has to maintain a distance of not less than thirty days from the date of the publication under section 82. The word at any time in section 83(1) only mean that if after the issue of proclamation, either of the two conditions mentioned in Clauses (a) and (b) of the provision to section 83(1) comes into existence, an order of attachment may be made without waiting for thirty days to expire. Even is such a case the Magistrate has to record his reasons for arriving at the judicial satisfaction that such conditions as mentioned in the proviso to have come into existence as held in Devendra Singh v State of U.P., 1994 CrLJ 1783 (1788).<br>9.7. It is seen that in many cases, the accused though served, remains absent, does not participate in the proceedings and/or conceals himself in such a manner as to avoid service, thereby resulting in a delay in the criminal proceedings, many times resulting in splitting up of the case and the proceedings against the accused who is available. In some cases, the accused who is available would be in custody and on account of the delay caused due to non-availability or on account of one of the accused absconding, entire proceedings get delayed, and the accused available continues to be in custody, essentially the right to speedy trial of such accused in custody is infringed by the accused absconding.<br>9.8. It is in order to secure the presence of the accused that various modes of service have been made available to a criminal Court.<br>9.9. Firstly summons or warrant is issued, if the accused were not to appear, a Non-Bailable Warrant is issued, which if not capable of being served, proclamation could be issued in terms of Section 82 of Cr.P.C. despite which if the accused were not to appear the accused could be declared absconding and thereafter the property of the accused can be attached and bought to sale, so that under the fear of losing the property, the accused may appear before the Court.<br>9.10.<span style=\"white-space:pre\">	</span>Thus the property of an accused can be attached under Section 83 of Cr.P.C. post the proclamation and declaration that an accused is absconding by following the procedure under Section 82(2) and 82(3) of the Cr.P.C. whenever the Court comes to a conclusion that the accused is evading or avoiding service of summons, warrant or NBW and this power to be exercised so as to secure the presence of the accused before the Court at the&nbsp; earliest.<br>9.11.<span style=\"white-space:pre\">	</span>In criminal trials it is but required for the Court to exercise these powers as early as possible, it is for the Public Prosecutor to file necessary applications under Section 82, as also under Section 83 of the Cr.P.C., as soon as the reasons and or the conditions of Section 82 and/ or Section 83 as the case may be are satisfied. There is a bounden duty on the part of the Public Prosecutor to immediately file a necessary application under Section 82 of the Cr.P.C. for proclamation when the service of the warrant and/or NBW is not being affected and/or the accused concealing himself.<br>9.12.<span style=\"white-space:pre\">	</span>Even if the prosecutor were not to file such application/s, Section 82 does not require an application to be made by the Public Prosecutor since it reads ‘if any court has reason to believe…’, therefore the Court on its own or suo motu could take up the proceedings under Section 82 issue a proclamation, direct its publication and record the due publication of the proclamation. If the accused were not to appear, the Court could also go ahead with attaching the property of the accused and bringing the same for sale. The Court is also duty-bound to exercise power under Section 82 and 83 at the earliest point on time so as not to delay the criminal trial only for the reason that the presence of the accused could not be secured.<br><b style=\"background-color: rgb(255, 255, 0);\">9.13. I answer point No.3 by holding that a property of the absconder can be attached anytime after the non- appearance of the accused in pursuance of a proclamation, it may, however, be advisable to wait for a period of 30 days from the date on which the accused was required to appear.</b><br>10. Answer to point No.4: Whether while exercising powers under Section 83 of Cr.P.C, the property which would be attached is required to belong to the accused/absconder?<br>And<br>Answer to point No.5: Would the word ‘belong’ used in Section 83&nbsp; of Cr.P.C&nbsp; mean merely that the property stands in the name of the said accused/absconder or would the interest of any third party in the said property require to be considered?<br>10.1.<span style=\"white-space:pre\">	</span>A reading of Section 83 of Cr.P.C. would indicate<span style=\"white-space:pre\">	</span>that<span style=\"white-space:pre\">	</span>the<span style=\"white-space:pre\">	</span>Court could order the attachment of property, movable and immovable or both belonging to a proclaimed person and therefore, it is required that the property to be attached belongs to the accused who is absconding. This being so, for the reason that it is only in such cases where such property is attached could there be pressure on the accused to appear before the Court so as to get the orders of attachment lifted on his appearance. Failure thereto would result in attachment of properties being sold and the proceedings thereof being forfeited to the State. This being a powerful weapen in the armoury of the Court to secure the presence of the accused before it.<br>10.2.<span style=\"white-space:pre\">	</span>Thus unless the property belongs to the accused and/or unless the accused would be adversely affected by the attachment order and or subsequent sale, there would be no purpose served in attaching the property. Thus if a third party were to have any interest in the said property and/or accused has lost interest in the property, in such circumstances, there would be no purpose served by attaching the property over which accused has no interest and/or that the accused will not get adversely affected by the attachment and/or sale of the said property, so as to secure his/her presence. The Court also needs to be conscious of the fact that the order of attachment should be such that it secures the presence of the accused, towards this end, multiple properties of the accused could also be attached.<br>10.3.<span style=\"white-space:pre\">	</span>In the above background, it would be but required for the Court to not only ascertain that the property belongs to the accused and/or owned by the accused, but also to ascertain whether the interest of the accused in the property continues to be subsisting as on the date of attachment or if the said interest has been transferred to any third party, which would come in the way of achieving the purpose of securing the presence of a person absconding.<br>10.4.<span style=\"white-space:pre\">	</span>Thus, the interest of any third party would also have to be considered if such interest is such that the accused, despite the attachment order, would not appear before the Court since neither the attachment nor subsequent sale by the Court would have any adverse impact on the said accused.<br><b style=\"background-color: rgb(255, 255, 0);\">10.5. I answer point Nos.4 and 5 by holding that it is only the property that belongs to or over which the accused has an interest that the property could be attached. The Court could attach multiple properties belonging to the accused so as to secure the presence of the Accused.</b><br>11. Answer to point No.6: What is the mode and methodology of attaching the property, is the order of attachment of the property be passed by the concerned Court or can it be delegated to the jurisdictional Deputy Commissioner to attach the property?<br>11.1.<span style=\"white-space:pre\">	</span>In terms of Section 83(1) of the Cr.P.C the Court issuing a proclamation under section<br>82 may, for reasons to be recorded in writing, at any time after the issuance of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person. Thus it is clear that the order of attachment has to be passed by the Court.<br>11.2.<span style=\"white-space:pre\">	</span>The mode and methodology of the attachment has been prescribed&nbsp; under Section 83(2) of the Cr.P.C. Post the attachment order passed by the Court in terms of Section 83(1), the Court could send the same to the District Magistrate within whose District the said property is situated for carrying out attachment.<br>11.3.<span style=\"white-space:pre\">	</span>That essentially would mean that the attachment order is required to be passed by the Court and the attachment order be sent to the District Magistrate for the purpose of execution of the attachment order.<br>11.4.<span style=\"white-space:pre\">	</span>The attachment could be made in case of movables by:<br>11.4.1. Seizure of the movable;<br>11.4.2. By appointment of the receiver;<br>11.4.3. by passing of garnishee order prohibiting delivery of any property of a proclaimed person to the proclaimed person or any one on behalf of the proclaimed person, etc.<br>11.5.<span style=\"white-space:pre\">	</span>If the property is immovable property, the same could be attached by :<br>11.5.1. taking possession;<br>11.5.2. by appointment of a receiver<br>11.5.3. by an order in writing prohibiting payment of rent to the proclaimed person or anyone on his behalf, etc.<br><b style=\"background-color: rgb(255, 255, 0);\">11.6. I answer point No.6 by holding that the order of attachment is required to be passed by the concerned Court, and it cannot be delegated to the jurisdictional Deputy Commissioner or District Magistrate. The order of attachment passed by the Court is to be sent to the Deputy Commissioner or District Magistrate for the purpose of execution/implementation of the order of attachment.</b><br>12. Answer to point No.7: Can the agreement holder challenge the attachment on the ground that the agreement holder has an interest in the property, i.e. to say would the mere agreement to sell confer an interest on such a person to lodge a claim or objection to the attachment in terms of Section 84 of Cr.P.C.?<br>12.1.<span style=\"white-space:pre\">	</span>In terms of Section 54 of the Transfer of Property Act, mere agreement of sale would not convey any right, title or interest in favour of the purchaser. Thus, an&nbsp; agreement holder by himself cannot assert any right over the property. This being the general law, the applicability of Section 54 of the Transfer of Property Act in matters relating to Section 83 and 84 of Cr.P.C. would have to be considered in the context thereto. Since without such context, the meaning, purport and intent of&nbsp; the legislation would be lost. Therefore, there has to be a purposive interpretation given to the provisions, i.e. Section 83, 84 of the Cr.P.C. and Section 54 of the Transfer of Property Act.<br>12.2.<span style=\"white-space:pre\">	</span>Attachment of a property is required to be made so as to secure the presence of the absconding accused.<br>12.3.<span style=\"white-space:pre\">	</span>As aforestated and repeated, the purpose of proclaiming a person to be absconding and attaching the property of such proclaimed absconder is to secure his presence before the Court. For this purpose, what is to be seen is what is the interest of the proclaimed absconder in the property to be attached or already attached. The attachment of the property and possibility of the sale would in default of the said absconder appearing before the Court on a particular date and time fixed by the Court would have to be such that such sale should adversely impact the right and interest of the proclaimed absconder. There would be no purpose served by attaching the property, sale of which would have no impact on securing the presence of the proclaimed absconder.<br>12.4.<span style=\"white-space:pre\">	</span>Thus in the event of the proclaimed absconder having entered into an agreement of sale with a third party and having received substantial consideration therein, though mere agreement of sale would not convey any right, title and interest to such purchaser, the proclaimed absconder having received substantial consideration, the attachment of such property would also not secure the presence of such proclaimed absconder before the Court, hence rendering the entire process of attachment and sale thereto useless and the purport and ambit of Section 83 of Cr.PC not being achieved.<br>12.5.<span style=\"white-space:pre\">	</span>Section 84 provides for claims and objections being laid to such attachment. Section 84 is reproduced hereinabove for easy reference.<br>12.6.<span style=\"white-space:pre\">	</span>Section 84, as could be seen, provides for objections to be laid within six months from the date of attachment by any person other than a proclaimed person on the ground that the said person, i.e. the claimant or objector, has an interest in the property and such interest is not liable to be attached under Section 83 of Cr.P.C.<br>12.7.<span style=\"white-space:pre\">	</span>Thus insofar as the proceeding under Section<br>84 are concerned, I am of the considered opinion that a third party, a bonafide purchaser who has paid sufficient consideration under an agreement of sale, such agreement having been entered into prior to the proclamation could object to the attachment and seek for lifting thereof and the Court could set-aside the attachment in the event of the Court coming to a conclusion that the attachment of sale of the property would not secure the presence of the proclaimed offender but also cause loss to the genuine and bonafide purchaser of the property.<br>12.8.<span style=\"white-space:pre\">	</span>The attachment and sale of the property as regards which the proclaimed absconder has received substantial consideration would not in any manner secure the presence of such an accused. Hence, the entire process being resorted to by the Court would only be an empty formality and not serve any purpose.<br><span style=\"background-color: rgb(255, 255, 0);\"><b>12.9. Thus, I answer point No.7 by holding that an agreement holder can challenge the attachment on the ground that the agreement holder has an interest in the property, so long as the interest is substantial and has been acquired in a bonafide manner and in this regard such a person can lodge a claim or objection to the attachment in terms of Section 84 of Cr.P.C.</b></span><br>13. Answer to point No.8: Whether the court passing orders under Section 83 and 84 of Cr.P.C, as also this Court can look into the factum of fraudulent transfer while considering the application under Section 84 of Cr.P.C or a petition challenging the order passed under Section 84 of Cr.P.C.?<br>13.1.<span style=\"white-space:pre\">	</span>As already held in answer to Point No.6 above, the interest of purchaser of a property, bonafide, in good faith is required to be protected and such interest not to be harmed merely because the proclaimed absconder had an interest in the same and or that he sold the property to such bonafide purchaser.<br>13.2.<span style=\"white-space:pre\">	</span>The question then would be what is the status of a fraudulent transfer and/or status of the purchaser who has purchased the same knowing fully well that the property belongs to an accused who has absconded and or is likely to be declared as proclaimed absconder in the future and/or that the very purpose of the purchase of the property is only to safeguard the property from being attached and/or auctioned.<br>13.3.<span style=\"white-space:pre\">	</span>In the event of such a transfer is not bonafide, then there is no interest of such purchaser, which is required to be protected by a Court of law. The said purchaser is as guilty as the proclaimed absconder, and the sale of such property&nbsp; could have an impact in securing the presence of the proclaimed absconder.<br>13.4.<span style=\"white-space:pre\">	</span>Thus in my considered opinion, while deciding a matter under Section 84 of Cr.P.C, the Court should always keep in mind the factum of a fraudulent transfer while considering such an application, the burden of proof thereto being on the agreement holder or third party objector to prove that the transaction is genuine, bonafide and entered into in good faith. The examination of the Court in this regards is only a prima- facie examination and does not require a detailed enquiry.<br><b style=\"background-color: rgb(255, 255, 0);\">13.5. I answer Point No.8, holding that the Court can look into the factum of fraudulent transfer while considering the application under Section 84 of Cr.P.C or a petition challenging the order passed under Section 84 of Cr.P.C. the examination of the Court under section 84 is nevertheless prima-facie and does not require a detailed enquiry.</b><br>14.Answer to point Nos.9 and 10: In the event of the dismissal of a claim or objection of such third party, would the third party be required to file a suit in terms of Section 84(4) of the Act or could such a person approach this Court by way of a Writ Petition, more so when there is no dispute as regards the agreement entered into by such third party raised by the owner of the property?<br>AND<br>Would ordinary alternative remedy under Section 84(4) be an embargo for such a person to approach this Court by way of a writ petition?<br>14.1.<span style=\"white-space:pre\">	</span>Section 84(4) of Cr.P.C. provide for a remedy to such third party claiming to be an objector in the event of his objections under Section 84(1) being disallowed or rejected viz., by filing a suit to establish his rights in respect of the property in dispute within a period of one year from the date of such dismissal of the petition.<br>14.2.<span style=\"white-space:pre\">	</span>Sri.C.V.Nagesh, learned Senior counsel has contended that filing of a suit would be necessitated only if a dispute as regards the right of the objector exists. He contends&nbsp; that when there is no dispute as regards the right of the objector, no suit is required to be filed, and such a person could approach this Court under Article 226 read with 227 of the Constitution challenging the dismissal of the claim filed under Section 84(1) of the Cr.P.C.<br><b style=\"background-color: rgb(255, 255, 0);\">14.3. As answered in Point No. 6 and 7 above, it is only a genuine, bonafide purchaser of the property in good faith who could maintain a proceeding under Section 84(1).</b><br>14.4.<span style=\"white-space:pre\">	</span>If the purchase is malafide, dishonest or with an intention to remove the property from the scope of attachment, i.e. to say that the transaction is fraudulent or collusive, a claim or objection made could be rejected. However, the finding in a proceeding under Section 84(1) is only a prima facie finding. If a finding of a prima facie fraudulent transfer is issued on a claim under Section 84(1), then such a person would necessarily have to establish his genuineness and bonafides by instituting a suit under Section 84(4) of Cr.P.C.<br>14.5.<span style=\"white-space:pre\">	</span>Though the execution of the agreement of sale could not be in dispute, the object, reason and motive of such execution of an agreement of sale would be in question, which a competent court of law could only decide after trial by considering the evidence led by both the parties.<br>14.6.<span style=\"white-space:pre\">	</span>It is only if the right of the third party claimant or objector is not in dispute inasmuch as the Public Prosecutor and/or the State were not to dispute the right of the objector in respect of the property, despite which the claim petition came to be rejected, then in that event, such third party objector could approach this Court by way of writ petition.<br>14.7.<span style=\"white-space:pre\">	</span>As stated above, whenever there is any dispute as regards the rights or claims of the third party objector, the same would have to be decided in a properly instituted suit and not by way of a writ petition.<br><b style=\"background-color: rgb(255, 255, 0);\">14.8. Therefore, I Answer Point Nos. 9 and 10 by holding that in the event of the dismissal of a claim or objection of such third party, the third party would be required to file a suit in terms of Section 84(4) of the Act.</b><br><b style=\"background-color: rgb(255, 255, 0);\">14.9. It is only when there is no dispute as regards the rights and or claims of a third party that a writ petition can be filed and the alternative remedy under Section 84(4) would not be an embargo for such a person to approach this Court by way of a writ petition.</b><br>15.6.<span style=\"white-space:pre\">	</span>The said Gopal Sheelam Reddy has concealed himself so that warrant could not be executed against him. If at all the said Gopal Sheelam Reddy had been declared as an absconder, then the agreement of sale which was entered into between the absconder and petitioner cannot be said to have been bonafide but would have to be said to be malafide since there was no particular purpose for the petitioner to have purchased the property except to preserve the property and take it out the jurisdiction of Ramanagar since the said Gopal Sheelam Reddy @ Nityabhaktananda having travelled outside India which was only a matter of time before he would be a ‘proclaimed absconder, thereby bringing up the property for sale.<br>15.7.<span style=\"white-space:pre\">	</span>In my considered view the entire transaction being a fraudulent transaction and therefore, the property could have been attached or brought on sale if the procedure under Section 82 Cr.P.C. had been followed by the III Addl. Sessions Judge, Ramanagara before doing so.<br>15.8.<span style=\"white-space:pre\">	</span>In view thereof, I am of the considered opinion that the orders dated 5.06.2020 and dated 29.06.2020 are not sustainable and they are not in accordance in law and are therefore, required to be set-aside.<br>16.<span style=\"white-space:pre\">	</span>Answer to point No.12: What Order ?<br>16.1.<span style=\"white-space:pre\">	</span>In the result, the petition is allowed.<br>16.2.<span style=\"white-space:pre\">	</span>Writ of certiorari is issued setting aside the order dated 5.06.2020 and 29.06.2020 passed in S.C.No.86/2014 by the III Addl. Sessions Judge, Ramanagar, liberty is, however, reserved for the Court to proclaim the petitioner as absconding and proceed therefrom.<br><br></h4><div><br></div>', 'ff0ac37e39c321a6546396ceb06ffc74.jpeg', 'a000e626a2468a25401e8146278c8df2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-06', 1, '', '', '2021-04-19 02:41:31', '2023-02-06 18:08:30');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2720, 'FaKA12RGdz9NfvBS9UuOpzwDn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Interpretation of statutes. Where a discretion is conferred on a authority coupled with an obligation the word \'may\' which denotes discretion should be construed to mean a command. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Prem Latha Uppal and others Vs Canara Bank and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Appeal 6228 of 2013 decided on 15 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Alok Aradhe and Justice Vijaykumar A Patil.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The appellant joined the services of Canara Bank (hereinafter referred to as \'the Bank\' for short) in the year 1971 as clerk. The appellant for a period from 16.06.2000 till 21.08.2004 was posted  as  Senior Manager in Diplomatic Enclave Branch, New  Delhi, which was headed by a Chief Manager. The appellant was one of the three member\'s of Credit Sanction Committee (hereinafter referred to as \'the Committee\' for short). Mr.P.P.Naik, Chief Manager, R.K.Puram Branch was the Chairman of the Committee, whereas, Sri.R.Mutturamalingam, Manager, Diplomatic Enclave Branch was the other member of the committee. The committee by a unanimous decision on 19.03.2001 sanctioned Open Cash Credit  (OCC)  limit  of  Rs.50 Lakhs to one M/s Aman Trading Company  on  the security of Stock and Receivables under the trader\'s scheme and collateral security of mortgage of immovable property, which was valued at Rs.107.21 Lakhs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>On 15.02.2002, one Mr.S.S.Bhat, Chief Manager of the Bank sanctioned a credit limit of Rs.50 Lakhs to M/s Creative Trading Company and on 19.04.2002, he renewed the limit of Rs.50 Lakhs sanctioned in favour of M/s Aman Trading Company. The Vigilance Department of the company on 08.04.2003, suspecting the fraud played by the borrowers viz., M/s Aman Trading Company and M/s Creative Trading Company of availing credit limit on collateral security of mortgage of property with forged title deeds, ordered investigation. In the findings recorded in the vigilance investigation, it was found that borrowers had committed fraud on the bank.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>We have considered the rival submissions and have perused the record. The main issues, which arise for consideration in this appeal are as follows:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space:pre\">	</span>The nature of Regulation 10 of the Regulations and the effect of its non compliance, in the facts of the case?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> (ii)<span style=\"white-space:pre\">	</span>Whether the findings recorded by the enquiry officer are vitiated in law as statements of Mr.S.S.Bhat and Mr.R.Chandramouli recorded by the Investigating Officer were relied upon by the Enquiry officer in the absence of their examination as witnesses in the departmental enquiry proceeding? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space:pre\">	</span>Whether the Central Vigilance Commission was required to be consulted,  in the facts of the case?<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>In the instant case, the following two charges were framed against the appellant. The ƒirst charge is with regard to sanction oƒ Rs.50,00,000/- on 19-3-2001 against the hypothecation oƒ stocks, collateral security oƒ house property, bank guarantee oƒ Sri. Sanjay Jain and Sri. B.K. Jain was stipulated. The second charge was to the eƒƒect that one M/s. Creative Trading Company, a proprietory concern oƒ Sri. Ashok Jain as proprietor and trading in Copper Winding Wires, was sanctioned OCC limit oƒ Rs.50,00,000/- against hypothecation oƒ stocks book debts, collateral security oƒ house property and personal guarantee oƒ Sri. Sanjay Jain and Sri. Rajeev Jain was stipulated.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20... Thus, the charges levelled against the appellant and six other officials arise out of the two transactions of loan. The appellant was one of the three member\'s of the Committee, which had unanimously recommended the grant of loan. The appellant had not individually sanctioned any loan. The appellant as well as 6 other officers were involved in the same transactions though their role was different. Therefore, in view of mandate contained in Regulation 10 of the Regulations, the authority ought to have directed a common enquiry. Therefore, the departmental enquiry proceeding initiated against the appellant is vitiated in law as the same was initiated in violation of Regulation 10 of the Regulations. Accordingly, the first issue is answered.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space:pre\">	</span>So far as second issue is concerned, we may refer to cross-examination.  From perusal of the record, it is evident that the aforesaid witnesses were not examined as witnesses in the enquiry. However, their statements have been relied upon by the enquiry officer in its report while recording a finding that charges levelled against the appellant are partly proved. Thus, the enquiry officer relied upon a material in respect of which no opportunity was afforded to the appellant to rebut the same. Therefore, the findings recorded by the enquiry officer are vitiated. Accordingly, the second issue is answered.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>22.<span style=\"white-space:pre\">	</span>From perusal of the charges  levelled  against the appellant supra, it is evident that no vigilance angle was involved. Therefore, it was not necessary to consult the Central Vigilance Commission. However, the Central Vigilance Commission was consulted, which was not required in the facts of the case. Accordingly, third issue is answered. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space:pre\">	</span>For the aforementioned reasons, the  order dated 02.09.2013 passed by Learned Single Judge cannot be sustained in the eye of law. Accordingly, the orders dated 02.09.2013  passed  by  Learned  Single Judge, the order dated 31.05.2006 passed by the disciplinary authority and the order dated 02.06.2009 passed by  appellate  authority  are  quashed.  Ordinarily we would have granted the liberty  to  the  bank  to proceed against the appellant afresh. However,  in peculiar facts of the case, we refrain from doing so for more than one reason. Firstly, it will have an impact on other officers of the bank who are not  before  us. Secondly, in view of the stand taken by the bank itself in para 4 of the statement of objection that no criminal connivance on the part of the appellant was found by the bank. Thirdly, the appellant was appellant was subsequently promoted on 19.07.2004 and  lastly,  for the reason that the appellant has already attained the age of superannuation on 31.11.2010. For the aforementioned reasons, we are not inclined to grant the liberty to the bank to proceed afresh against the appellant.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> Accordingly, the appeal is allowed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0344bad07b3205972011bcad381978cd.jpeg', '6bd150fa33a4004348fbe103f3aa6d10.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-23', 1, '', '', '2023-02-22 15:28:48', '2023-02-23 12:14:26'),
(4585, '2q91g3Nc709suMufdZKeoYM5x', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Gift is between Donor and Donee. When donor who challenged gift deed withdraws the suit, his children cannot question the gift deed on the ground of fraud etc. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Geetha Vs Johnson Correya and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 582 of 2023 decided on 4 April 2024.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N S Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The respondents – petitioners herein instituted a suit\r\nseeking for a declaration that the gift deed dated\r\n16.10.2012 executed by their father in favour of the sole\r\ndefendant V.Geetha was null and void. They also sought\r\nfor a decree to direct the defendant to hand over\r\npossession and ultimately they sought for a decree of\r\npartition and claimed half a share to each of them.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. It is, therefore, clear that the plaintiffs clearly\r\nadmitted that their father had executed a registered gift\r\ndeed in favour of the defendant and had also filed a suit\r\nseeking for its cancellation, but ultimately he withdrew the\r\nsuit on the ground that the issue between him and the\r\ndefendant was settled out of Court.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. In the present suit filed for declaration by the\r\nchildren of the donor, the beneficiary i.e., defendant filed\r\nan application seeking for rejection of the plaint on the\r\nground that when the donor himself has filed the suit and\r\nhad withdrawn the said suit, his children could not be\r\npermitted to challenge the gift deed executed by their\r\nfather. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The argument of the learned counsel for the\r\nrespondents – plaintiffs that the donor could not have\r\nbeen permitted to withdraw the suit, since by his own\r\naverments he was unwell, cannot be accepted. It is not in\r\ndispute that the respondents were aware of the withdrawal <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the suit and yet did not seek to challenge the said order\r\nby which their father was permitted to withdraw the suit.\r\nHaving accepted withdrawal of the suit, the respondents –\r\nplaintiffs cannot be permitted to get over the same by\r\nfiling a fresh suit for cancellation.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. In my view, the arguments of the respondents –\r\nplaintiffs cannot be accepted. A gift is between the donor\r\nand the donee. If, in a given case the donor, subsequent\r\nto the execution of the gift deed, institutes a suit for for\r\ncancellation of the gift deed that he had executed, but\r\nsubsequently chooses to withdraw the same, the question\r\nas to whether the gift deed was valid comes to an end\r\nagainst the Donor. If the donor had accepted the gift, his\r\nchildren, after his death cannot be permitted to contend\r\nthat the withdrawal of the suit by the donor was improper\r\nor that the gift deed was executed by their father was\r\nunder fraudulent circumstances. The Trial Court without\r\nnoticing this basic aspect of the matter that there was no\r\ncause of action has refused to reject the application which </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cannot be sustained. I am, therefore, of the view that the\r\nimpugned order cannot be sustained and the same is set\r\naside. The plaint, as a consequence, shall stand rejected.\r\nThe Revision is, accordingly, allowed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6c03e5335ca371a8d3443ee7c69d9be7.JPG', 'b09cab4a4f6318b5c787b9f364e5c7ec.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2024-06-05', 1, '', '', '2024-06-04 13:27:18', '2024-06-05 08:01:41'),
(2723, '5HpsEiKX16RiKmF5peIIqLKpk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for partition. Registration of a sale deed in respect of joint family property would amount to constructive notice to all members of the joint family and the period of limitation would commence from the date of such registration. Karnataka High Court', '<p><span style=\"font-weight: bolder;\">M/s Metropoli Overseas Limited vs H.S. Deekshit and others.&nbsp;<br>Civil Revision Petition 307 of 2020 decided on 14 September 2021<br>Justice Suraj Govindaraj.&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"></span></p><p><span style=\"font-weight: bolder;\">Whether registration of a sale deed in respect of alleged joint family property would amount to constructive notice to all members of the joint family?</span></p><p><span style=\"font-weight: bolder;\">16.1. The purpose of registration of sale deed is to put to notice the members of the general&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">public about a particular document having been registered and or a transaction having occurred.</span></p><p><span style=\"font-weight: bolder;\">16.2. A registration of a document makes it a public document and such registration is also reflected in the Encumbrance Certificate relating to the said property, thereby indicating that there is an encumbrance created on the property.</span></p><p><span style=\"font-weight: bolder;\">16.3. Constructive notice is a notice which treats a person who ought to have known a fact, as if he actually does know it. It is the knowledge which the court imputes to a person upon a legal presumption so strong that it cannot be allowed to be rebutted, that knowledge must have been obtained by the person had he made all the relevant inquiries.</span></p><p><span style=\"font-weight: bolder;\">16.4. In terms of Explanation 1 to Section 3 of the Transfer of Property Act, if a transaction&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">relating to the immovable property needs to be effected by a registered instrument, under law, then the registration of the document will be deemed as Constructive Notice. The notice of such instrument will be deemed from the date of registration of such instrument. Section 3 of the Transfer of Property Act is extracted hereunder for easy reference:</span></p><p><span style=\"font-weight: bolder;\">16.5. In order that registration of an instrument may operate as a notice of its contents, the following three conditions must be satisfied:</span></p><p><span style=\"font-weight: bolder;\">16.5.1. The instrument must be compulsorily registrable. Thus, registration is notice only where the instrument is required to be registered compulsorily, and not where the registration is optional.</span></p><p><span style=\"font-weight: bolder;\">16.5.2. The registration of the document must be completed in the manner prescribed by the Indian Registration Act.</span></p><p><span style=\"font-weight: bolder;\">16.5.3. The instrument (or its memorandum) and the particulars regarding the transaction to which it related must be correctly entered in the registers or books&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">maintained under the Registration Act.</span></p><p><span style=\"font-weight: bolder;\">16.6. Such being the case, when a document is registered by following the due formalities, the document becoming a public document which would amount to a constructive notice to one and all about the such registration of the sale deed.</span></p><p><span style=\"font-weight: bolder;\">16.8. The registration of a document before the jurisdictional Sub-Registrar will constitute constructive notice of the same so long as the details relating thereto have been entered in the concerned register and the period of limitation would have to commence from the date of such registration.</span></p><p><span style=\"font-weight: bolder;\">16.9. Hence I answer point no.2 by holding that registration of a sale deed in respect of alleged joint family property would amount to constructive notice to all members of the joint family, if&nbsp; the above conditions are fulfilled.</span></p>', '233b31fc8cbca87b728b10c535e97b26.JPG', 'a499a2e0dfb1a07b3e8b0ac9180dbb9b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-23', 1, '', '', '2023-02-23 13:40:47', '2023-02-23 13:40:47'),
(2725, 'wynqYcXQrNs1NUmlfjcLeWQya', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When a Company nominates a Director under Section 49(2) of the Legal Meteorology Act, 2009, initiation of penal proceedings against other Directors is not permissible. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Honda Motor India Pvt Ltd and others Vs State and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 8168 of 2017 decided on 8 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The 1st respondent field a complaint under Section 200 of Cr.PC alleging, non-compliance of Section 18(1) of the Legal Meteorology Act, 2009 (for short `Act\') punishable under Section 36 of the said Act. The learned Magistrate, after perusing the complaint, took the cognizance and registered the case against the petitioners - accused and issued summons</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>Section 49 deals with the offences by companies and power of court to publish name, place of business, etc., for companies convicted. Sub-Section 2 of Section 49 specifies that any company may, by order in writing, authorize any of its directors to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act. In the instant case, the accused No.10 was appointed as a nominated director under sub-Section 2 of Section 49 of the Act, and the same was intimated to the department of Legal Meteorology by communication dated 27.5.2016 (Annexure-C). Section 49(1) of the Act specifies that where an offence under this Act has been committed by a company, the person, if any, who has been nominated under sub-section (2) shall be deemed to be guilty of the offence and shall be liable to be proceeded and punished accordingly. Hence, a reading of Section 49 of the Act clearly indicates that the petitioner - accused, who is not the nominated director, can not be held guilty of an offence punishable under the Act. Hence, the registration of the complaint as against the accused No.14 requires to be quashed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> i)<span style=\"white-space:pre\">	</span>Criminal petition is allowed in part.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c956e0f0fe6b35e97368c826f32d7531.jpeg', '34f0a1ea8db8322e59231ed0762c67e9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-27', 1, '', '', '2023-02-23 15:08:05', '2023-02-27 08:04:49'),
(2726, '55RSxoygMeE8rPPNZk1UaV2Kb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Change of partners in a partnership concern holding excise license amounts to transfer of excise license. Authorities can cancel license for violation of condition against transfer of license. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Cohiba Club Vs The Deputy Commissioner and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 31185 of 2018 decided on 25 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.    The petitioner ‘Cohiba Club’, a registered partnership\r\nfirm engaged in the business of running Bar and\r\nRestaurant having CL-9 licence. 1st respondentDeputy Commissioner vide order dated 13.08.2009\r\ncancelled the licence of the petitioner and it is\r\naggrieved by the same that the petitioner is before\r\nthis Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>It is not in dispute that when the licence was issued, the partners were Sri.P.Lava Kumar and Sri.E.Ranjith Kuruvilla. Subsequent thereto, these two partners have apparently exited from the partnership and in their place, it is Smt.Thirtha Kumar Swamy and Sri.Mohit Kumar Swamy who have become partners. Thus, the entire constitution of the firm has got changed, in essence, the partners who have applied for and obtained the licence are no longer the partners and in their place, there are new partners. This aspect gets further complicated when Smt.Thirtha Kumar Swamy and Sri.Mohit Kumar Swamy entered into an agreement with Smt.Kapila Saigal to induct Smt.Kapila Saigal into partnership at the initial stage and thereafter to induct such representative of Smt.Kapila Saigal as she intended to with an understanding that Smt.Thirtha Kumar Swamy and Sri.Mohit Kumar Swamy would be retiring from the partnership. By applying the ratio laid down by this Court in M/S.Shankar Wines case supra, it is clear that even there is a 50% change in the constitution of the partnership, then the same would amount to a transfer. In the present case, at the first instance, both the partners having exited, and two new partners being inducted, there is a 100% change in the partnership firm. At the second stage, even the inducted partners wanted to induct a new partner which according to Sri.Venkateshwaran, learned counsel for the petitioner has not been given effect to though a reconstituted partnership deed has been executed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>I am of the considered opinion that once a reconstituted partnership deed has been executed it would amount to a change in the constitution of the partnership and the same comes within the mischief as enumerated in M/S.Shankar Wines case supra and as such it would fall foul of Rule 17B of the Rules entitling the 1st respondent-Deputy Commissioner to exercise powers under Section 29 of the Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>It is clear from the perusal of the said Section that if any duty or fee payable by the holder is not duly paid, then, the powers under Section 29 of the Act could be used. It is clear from Sub-Clause (a) of Sub-Section (1) of Section 29 of the Act that if there is any breach of any terms then also the powers under Section 29 of the Act could be exercised. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>In the present case, when the initial partners exited and Smt.Thirtha Kumar Swamy and Sri.Mohit Kumar Swamy were inducted as partners, there being a transfer, there was a transfer fee, which was required to be paid, which has not been paid, therefore, entitling the 1st respondent to exercise powers in terms of Sub-Clause (a) of Sub-Section (1) of Section 29 of the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>The transfer having occurred and not having brought to the notice of the Deputy Commissioner, there being a breach of the licence, 1st respondent would be entitled to exercise his powers of Sub-Clause (a) of Sub-Section (1) of Section 29 of the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>In view of the above, I am of the considered opinion that the submission made by learned Counsel for the petitioner that Section 29 of the Act would not be applicable would have to be rejected.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>15.<span style=\"white-space:pre\">	</span>In view thereof, the Writ Petition stands dismissed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'bc2a393647def458c0f63cd8326ea701.JPG', 'f787e9743db6ada563803fb6d8e0aa7f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-27', 1, '', '', '2023-02-23 15:31:11', '2023-02-27 10:00:25'),
(697, 'YSgSFSdOZ0lb1oDrjc8YXEqHO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prevention of Corruption Act. Section 17A. Formation of opinion by statutory authority while granting prior permission should reflect application of mind with reference to material available on record to avoid malicious prosecution. Kar HC. 26:3:2021 ', '<h4>Praveen Kumar Meghekar and another vs State of Karnataka and others. </h4><h4>Writ Petition 200356 of 2021 decided on 26 March 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/379280/1/WP200356-21-26-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/379280/1/WP200356-21-26-03-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:2-7 This petition calls in question an order of approval granted as required under Section 17A of the Prevention of  Corruption Act, 1988 dated 03.02.2021 for conduct of proceedings against the petitioners. Sans unnecessary details, facts germane for consideration of the lis are as follows:- The first petitioner at the relevant point in time was working as Assistant Director in the Department of Agriculture and has now retired on attaining the age of superannuation. The second petitioner was working as Joint Director in the Department of Agriculture. One Smt. M.H.Vijayalakshmi registered complaint before the Principal Secretary of the Department of Agriculture on 09.05.2019 alleging various irregularities by the incumbents of office in the Krishi Bhagya Scheme for the period between 2016 and 2019. During the Pendency of initiation of any proceedings in terms of the complaint, the complainant files second complaint before Anti Corruption Bureau on 30.05.2019 and again third complaint before the Lokayukta on 01.06.2019, all on the same set of facts. Thus there were three complaints to three different authorities on the same set of facts, almost at the same time.The Lokayukta, on the complaint holds a detailed enquiry and submits its report on 21.06.2019 opining that the allegations levelled in the complaint against the petitioners and the like were unsubstantiated. During the pendency of proceedings either before the Anti Corruption Bureau or the Government, the Hon\'ble Chief Minister on 07.09.2019 issues a general direction appointing a three Member Committee to conduct enquiry statewide into the allegations that were levelled against the petitioners and the like and to submit report. The period the committee was directed to hold an enquiry was between 2014 and 2018. After the Hon\'ble Chief Minister ordering enquiry statewide, complainant who had registered the complaint before Anti Corruption Bureau withdraws her complaint before it, on the ground that she has been victorious in getting a statewide enquiry being conducted on the allegations levelled by her. The communication of withdrawal of the said complaint dated 04.10.2019 was served upon Anti Corruption Bureau. The three member Committee that was constituted pursuant to the directions of the Hon\'ble Chief Minister submitted its report on 23.01.2020 holding that there was no substance in the allegations levelled thereby exonerated the petitioners and the like of the allegations. After all these aforesaid proceedings, after about 9 months of submission of report to the government by the committee constituted by the Hon\'ble Chief Minister, Additional Director General of Police of the Anti Corruption Bureau communicates to the competent authority on 19.10.2020, seeking approval in terms of Section 17A of the Act, for commencement of proceedings which would be a prelude for setting criminal law in motion against the petitioners. This resulted in passing of the order impugned granting approval under Section 17A of the Act r/w General Circular dated 14.03.2016. It is this order of approval dated 03.02.2021 that is called in question in this writ petition.</h4><h4>13. The amendment dated 26.07.2018 introduced several changes to the Prevention of Corruption Act, 1988. One such amendment was introducing Section 17A with an object of giving protection to public servants who have done or ordered or approved certain actions as public servants in the bonafide discharge of their official functions without any dishonesty or malafide intentions. The amendment in the form of this new Section was necessitated owing to certain unfortunate circumstances where even honest officers were prosecuted under the Prevention of Corruption Act.<br>14. Since the marrow of the lis lies in consideration and interpretation of the newly introduced Section 17A of the Prevention of Corruption Act, 1988 which was brought into force on 26.07.2018. <br>15. Clause (a) thereof provides that in case of public servant who is or was employed in connection with the affairs of the Union at the time when the offence alleged to have been committed, the previous approval of the Central Government shall be obtained. Clause (b)  likewise provides that in case of a public servant who is or was an employee in connection with the affairs of the State at the time when the offence was alleged to have been committee, the approval of the State Government shall be obtained before proceeding. Clause (c) provides that in case of any other person who comes within the definition of public servant previous approval of the competent authority to remove him from office at the time when the offence alleged to have been committee should be obtained. The narrative hereinabove cannot but indicate that the object of the Section was to protect public servants from malicious, vexatious or baseless prosecution. However, if enquiry into the circumstances in which the alleged administrative or official act was done by the public servant or where malfeasance committed by the public servant which would involve an element of dishonesty or impropriety is to be proceeded against, the approval of the competent authority is required.<br><span style=\"background-color: rgb(255, 255, 0);\"><b>16. In my considered view Section 17A and its purport must be observed with complete strictness bearing in mind public interest and protection available to such officers against whom offences are alleged, failing which many a time it would result in a malicious prosecution. Section 17A is clearly a filter that the prosecution must pass in order to discourage or avoid vexatious prosecution, though cannot be considered as a protective shield for the guilty, but a safeguard for the innocent.<br></b></span>17. The provision (supra) was also considered by the Apex Court in the case of Yeshwanth Sinha v.  Central Bureau of Investigation reported  in (2020) 2 SCC 338. The Apex Court though did  not consider as to how the previous approval of the competent authority has to be taken, but considered the amendment and its importance. <br>18. Section 17A casts an obligation of application of mind on the part of the Competent Authority in three situations. The Section makes it clear that no officer shall conduct any enquiry or inquiry or investigation without previous approval. Therefore, the approving authority will have to look into the materials, apply its mind in all the three contingencies i.e., enquiry or inquiry or investigation. </h4><h4>19. Application of mind by an authority is demonstrable only in the order that the authority makes, for the order to demonstrate application of mind by the authority, it must contain the reasons, as recording of reasons in an order is the only way that one can construe such application of mind. Reasons are live links between the mind of the decision-taker, to the controversy in question and the decision arrived at. Reason and application of mind are impregnable for an order to sustain the scrutiny of law, be it administrative or quasi judicial. Reasons in every circumstance need not be elaborate, but nevertheless should bear application of mind. The case at hand and the order impugned will have to be tested on the anvil of the mandate of the statute, the intent behind its enactment and the rule of application of mind. <a³  äa³<br=\"\"><a³   äa³<br=\"\"><a*4   cos³ç<br=\"\">A cursory perusal at the order dated 3.02.2021 granting prior approval/permission for commencement of any of the three contingencies narrated hereinabove unmistakably reveals that it bears no application of mind. The complaint itself was withdrawn by the complainant when the Hon\'ble Chief Minister directed State-wide enquiry which had also submitted its report on 23.01.2020 exonerating the officials including the petitioners and the letter of permission was sought after 9 months of submission of the report by the Enquiry Committee which was constituted by the Hon\'ble Chief Minister. Without looking into any of the facts narrated hereinabove, an order under Section 17A is passed which is cryptic, bald and absolutely laconic and cannot stand the scrutiny of law<br><b style=\"background-color: rgb(255, 255, 0);\">26. The formation of opinion by the statutory authority while granting prior permission under Section 17A should reflect application of mind with reference to the material available on record. The provision is akin to the recording of reasons while granting prior permission under Section 19 of the Act. </b>The bedrock of these provisions are to avoid or discourage malicious and vexatious prosecutions. In the teeth of the afore-narrated facts, the order granting prior approval, impugned in the writ petition, would, without a shadow of a doubt result in a vexatious prosecution against the petitioners. The order impugned falls foul of the intent and purport of Section 17A. Therefore, the order impugned loses its legal legs to stand as it is ex-facie illegal.<br>27. In terms of the narrative hereinabove what remains to be considered is whether the matter will have to be remitted back to the hands of the competent authority to reconsider the order of prior approval by recording cogent reasons. But, a subsequent development to the order impugned would hold the hands of this Court to submit the petitioners to a further rigmarole of proceedings. The Government in the Department of Agriculture has issued a communication on 1.03.2021 accepting the report of the Inquiry Committee constituted <br>Therefore, when Government itself has accepted the report and closed all the proceedings against all concerned concerning Krishi Bhagya Scheme for the years 2014-15 to 2017-18 during which the petitioners were also functioning at Gulbarga, it would be unjust to remit the matter back to the competent authority to reconsider the matter, but it cannot preclude the Government in taking any action in the event it becomes necessary in accordance with law, which would not become a tool of harassment against the petitioners.<br>28. For the praefatus reasons, the following:<br>ORDER<br>(i) The Writ Petition is allowed.<br>(ii) The order dated 03.02.2021 passed by respondent No.1 is quashed.<br>(iii) The State Government will have the liberty to institute proceedings in accordance with law bearing in mind the General Circular dated 14.03.2016, the communication dated 01.03.2021 wherein the proceedings against all the officers concerning Krishi Bhagya Scheme were closed with reasons to be recorded in writing and not to use the liberty granted as a tool to harass the petitioners by setting the criminal law in motion sans substance.<br><br><br><br> <br><br><br>NB*<br> <br>Sd/- JUDGE</a*4 ></a³ ></a³ ></h4><div><br></div>', '3440e46f0a94d579972595363064369c.jpg', '3d1b2c3c45cfa5678725225fc71c4c45.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-26', 1, '', '', '2021-04-19 23:36:18', '2021-04-20 00:53:33');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(698, 'yFe2Dfiq6zE4zJH6wBklWpSzG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Exploitation of human labour at the hands of the State can never be countenanced. Karnataka High Court orders regularisation and payment of terminal benefits to a woman employee who worked for 25 years on temporary basis. 8:3:2021 ', '<h4>G.P. Sarojamma vs The State of Karnataka<span style=\"font-size: 1.3125rem;\"> and others. </span></h4><h4><span style=\"font-size: 1.3125rem;\">Writ Petition 80646 of 2011 decided on 8 March 2021. </span></h4><h4><span style=\"font-size: 1.3125rem;\">Judgment Link: </span><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/379279/1/WP80646-11-08-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/379279/1/WP80646-11-08-03-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to direct the respondents to grant/sanction the retirement- benefits/pensionary-benefits payable to the petitioner, with interest thereon at 12% per annum from 31.01.2007 till the date of payment, making available to her all the financial benefits emanating there from without brooking any further delay in the matter, for which the petitioner is entitled to and etc.<br></h4><h4>2-4. Brief facts leading to filing of the present petition, as borne out from the pleadings are that on 23.03.1982 certain proceedings were initiated by the Taluk Development Board, Sindhanur, Raichur District for appointment of a qualified person to the post of Conductress. Pursuant to the said proceedings, the petitioner was selected to be appointed and was also appointed on 18.05.1982 against a clear vacancy on temporary basis with a pay scale of Rs.280-500 with all other allowances admissible to the petitioner. Subsequent to the appointment of the petitioner, the proceedings were approved by the Chief Executive Officer of the Taluk Development Board Sindhanur as was required by law. It transpires that the petitioner was deputed to work at the Taluk Panchayat office on its formation right from 1987 and was later shifted to Social Welfare Department. After working with the Taluk Development Board, Zilla Panchayat and the Social Welfare Department on the strength of the aforesaid appointment, the petitioner retired on attaining the age of superannuation which was 58 years at that point in time on 31.01.2007. By the time the petitioner retired from service, she had completed 25 years of service, which according to the petitioner was regular in the light of the petitioner being appointed pursuant to proceedings drawn up by the Taluk Development Board and its approval by the competent authority. The appointment was against an existing vacancy with a particular pay scale and allowances applicable and being granted to the petitioner. It is also the case of the petitioner that she was appointed in terms of the Cadre and Recruitment Rules. After the petitioner retiring on attaining the age of superannuation, no terminal benefits were paid, which drove the petitioner to penury. On not being paid, any terminal benefit pursuant to her retirement on attaining the age of superannuation, the petitioner submitted plethora of representations to the authorities seeking such payment of pension and other terminal benefits, that not being paid has led the petitioner to knock the doors of this Court in the present petition.<br>11. The justification of the learned counsel appearing for the State is that such requests cannot be considered in the light of the judgment of the Apex Court in  the  case  of  Secretary,  State  of  Karnataka and others v. Umadevi (3) and others reported in (2006) 4 SCC 1 which was rendered on 10.04.2006. This submission of the learned counsel appearing for the State is unacceptable as by the time the judgment in the case of Umadevi was rendered  by the Apex Court, the petitioner had completed more than 10 years of service.<br>12. The service of the petitioner cannot be considered to be illegal for the factor that though the petitioner\'s appointment was purely on temporary basis, she was appointed pursuant to proceedings of the Taluk Development Board and was approved by the Chief Executive Officer of the Board; she was given a pay scale of Rs.280-500 which was also revised on 21.04.1988 by granting her pay scale of Rs.810-1310; the pay scale and allowances of the petitioner were revised from time to time till her retirement; her continuous employment for 25 years was not with the support of any interim order being granted by any judicial fora. Therefore, the appointment of the petitioner with the aforesaid factors cannot be termed to be illegal but at best irregular. The Apex Court in  the  case of  Umadevi had directed the State Government to consider the appointments which are irregular to be regularized if the employees had completed 10 years of service, as on the date of pronouncement of the judgment i.e., 10.04.2006.<br>13. It is not in dispute that the petitioner had long before the judgment rendered in the case of Umadevi completed 10 years of  service. There was  no order passed with regard to regularization of the petitioner, though representations were given by the petitioner, without considering the same the petitioner was directed to retire on attaining the age of superannuation on 31.01.2007 which is admittedly after 10.04.2006-on which day the judgment of the Apex Court in Umadevi was rendered. Therefore, the plea that the petitioner is not entitled to any penny on her retirement displays arbitrary and discriminatory treatment meted out to an employee who had rendered continuous service of about 25 years to the State.<br>14. In the light of vehement submissions of the learned counsel appearing for the State taking support from the judgment of the Apex Court in the case of Umadevi it has become necessary to consider the judgments rendered by the Apex Court in the aftermath of Umadevi. The Apex Court in the case of State of Jharkhand and others v. Kamal Prasad and others reported in (2014) 7 SCC 223.</h4><h4>18. The judgments of the Apex Court rendered as extracted hereinabove would lead to an unmistakable conclusion that the line of judicial thought rendered in the aftermath of Umadevi is towards regularization of employees engaged to work for the State for long years failing which the Apex Court has clearly held would amount to violation of Article 14 of the Constitution of India. The facts obtaining in the case at hand, as narrated hereinabove, would also lead to an unmistakable analysis and conclusion that the petitioner was entitled for regularization of her services but was not done even after taking her service for 25 years by the State Government while regularizing scores of people, similarly situated in terms the judgment of Umadevi.<br>19. Now, what remains is the direction that is to be issued in the light of the facts and judgments rendered by the Apex Court as extracted hereinabove. This court need not be detained for long in the light of the latest judgment of the Apex Court in the case of Union of  India  and  others  v.  Central  Administrative Tribunal and others  reported  in (2019) 4 SCC 290.</h4><h4><span style=\"font-size: 1.3125rem;\">In the judgment extracted hereinabove the Apex Court has considered all the judgments rendered in the aftermath of the Umadevi. Therefore, in the peculiar facts of the case, considering the service of the petitioner rendered between 1982 and 2007 for 25 long years uninterruptedly without any intervention of any judicial fora, the action of the State in not paying the petitioner even a penny on her retirement would not behove the status of the respondent being a model employer. Therefore, the State shall regularize the services of the petitioner, pay her terminal benefits after fixing the pay scale to the petitioner for the services rendered by her for twenty five years and grant her fruits of regularization failing which the action of the State in extracting employment from the petitioner, not considering her case for regularization and retiring her without a penny would amount to exploitation of human labour at the hands of the State </span>which can never be countenanced, but at the same time, the State cannot now be mulcted with payment of backwages. The service rendered by the petitioner for 25 years after completion of 10 years of her initial appointment i.e., from 22.03.1992 shall be taken as regular service and terminal benefits be calculated and paid to the petitioner on corresponding pay - scales of regular employees. It is made clear that the petitioner would not be entitled to any arrears of salary.</h4><h4>20. For the aforesaid<span style=\"white-space:pre\">	</span>reasons, I pass the following:<br>O R D E R<br>i. The writ petition is allowed.<br>ii. Mandamus is issued to the respondent/State to regularize the services of the petitioner bearing in mind the observations made in the course of this order<span style=\"white-space:pre\">	</span>and<span style=\"white-space:pre\">	</span>pass<span style=\"white-space:pre\">	</span>appropriate orders<span style=\"white-space:pre\">	</span>in accordance with law.<br>iii. The petitioner shall be entitled to consequential benefits only from 22.03.1992-the day on which she completed 10 years of service except arrears of salary. The terminal benefits of the petitioner shall be calculated on the basis of the applicable pay-scale to similarly situated employees.<br>iv. The petitioner shall be entitled to payment of terminal benefits/pension w.e.f., from the date of her retirement on 31.01.2007.<br>v. The aforesaid exercise shall be carried out by the respondent/State within four months from the date of receipt of a copy of this order.<br><br></h4>', '9e52fa5e67836155cc96ed4f3300848a.jpg', '863184560abf01181af33d85ffff6aa3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-08', 1, '', '', '2021-04-20 01:24:28', '2021-04-20 01:44:42'),
(699, 'x2Dp1HIO8NNqgwxWjQKEzPRnU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Saving Great Indian Bustard and Lesser Florican birds from extinction-Supreme Court suggests high-voltage overhead power lines to be laid underground and installation of devertors. 19 April 2021    ', '<h4>M.K.Ranjitsinh and others vs Union of India and others. </h4><h4>I.A. 85618 OF 2020 in Writ Petition (Civil) 838 of 2019 decided on 19 March 2021. </h4><h4>Chief Justice S. A. Bobde, Justice A.S. Bopanna and Justice V. Ramasubramanian</h4><h4>Judgment Link:<a href=\"https://main.sci.gov.in/supremecourt/2019/20754/20754_2019_31_1502_27629_Judgement_19-Apr-2021.pdf\" target=\"_blank\"> https://main.sci.gov.in/supremecourt/2019/20754/20754_2019_31_1502_27629_Judgement_19-Apr-2021.pdf</a><br>1. The   writ   petition   is   filed   in   the   nature   of   public interest seeking to protect two species of birds namely the Great   Indian   Bustard   (‘GIB’   for   short)   and   the   Lesser Florican, which is on the verge of extinction. The existence of overhead power lines is stated to have become a hazard due to which the said species of birds on collision are getting killed. <br>6.  The respondents though are sensitive to the issue, have contended that the high­voltage lines do not cause GIB deaths due to electrocution but cause death due to collision.   It is contended that the underground highvoltage   line   is   not   technically  feasible   due   to   several factors such as (i) high cost (ii) high downtime to repair any failed cable (iii) non­availability of cables at 765 Kv level and (iv) increase in the number of joints with length of run. The petitioners/applicants in order to controvert the same and contend that the undergrounding of high voltage line is not a novel move but has been undertaken in other cases, have referred to the tender notification issued   by   Power   Transmission   Corporation   of Uttarakhand Limited for 220 KV transmission line and the one issued by Delhi Transport Limited for 220 KV underground cable.<br>8. In that background, keeping in view, the sustainable development   concept   and   on   striking   a   balance   the protection of the rare species of birds is essentially to be made, the effort being to save every bird while at the same   time   allowing   transmission  of  power in an appropriate manner.  <br>14.  In the light of the contentions urged on this aspect of the matter, we are conscious that the laying of the underground power line more particularly of high­voltage though   not  impossible,   would   require   technical evaluation   on   case­to­case   basis   and   an omnibus conclusion cannot be reached laying  down a  uniform method and directions cannot be issued unmindful of the fact  situation.  <br>15.  As already taken note above, the laying of highvoltage underground power line would require expertise to assess   the   feasibility of the   same.  For this specific purpose   of   assessing   the   feasibility   after   taking   into consideration all technical details, we deem it proper to constitute   a   committee.<br>17.  The respondents No.5, 6 and 9 to 11 while arranging to   lay   the   powerlines   underground   in   respect   of   the powerlines, the feasibility of which is not in doubt shall proceed with the work right away.  However, in cases where the   respondents   find   that   there   are   issues   relating   to feasibility, the matter shall be referred to the committee with all relevant material and particulars.  The committee shall assess the matter and arrive at a conclusion as to whether   the   underground   powerline   is   feasible   or   not. Based on the report to be rendered by the committee the further action shall be taken by the respondent<br>18.   In all cases where the overhead powerlines exist as on   today   in   the   priority   and   potential   GIB   area   the respondents shall take steps forthwith to install divertors pending consideration of the conversion of the overhead cables  into   underground   powerlines.     In   all   such   cases where it is found feasible to convert the overhead cables into underground powerlines the same shall be undertaken and completed within a period of one year and till such time   the   divertors   shall   be   hung   from   the   existing powerlines.<br>19.   Ordered accordingly.    <br></h4>', 'cf9cbbf947be6be3fee03042326d5dd6.png', '05a456ac160c40cefebeeb954c431dde.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-19', 1, '', '', '2021-04-20 02:22:25', '2021-04-20 02:24:03'),
(700, 'aRCo5KqSeeh2cT6S5nQRIVeWB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Joint ownership. Possession of joint property by one co-owner is possession of all.  A co-owner is not entitled to an injunction restraining another co-owner from exercising his rights in the common property. Himachal Pradesh High Court.', '<h4>Ramesh Kumar vs Sheetal and others <br>CMPMO No. 428 of 2020 decided on January 8, 2021 <br>Justice Sandeep Sharma. </h4><h4>10. Since, in the case at hand, it is not in dispute that the parties to the lis are joint owners of suit land and by way of application at hand, injunction is being sought against one of the co-owners, it would be apt to deal with rights and liabilities of cosharers. In this regard, reliance is placed upon judgment rendered by a Division Bench, of Punjab and Haryana High Court in <b><i>Sant Ram Nagina Ram v. Daya Ram Nagina Ram, AIR 1961 Punj 528, </i></b>wherein it has been held as under:<br></h4><h4 style=\"margin-left: 25px;\"><i>(1) A co-owner has an interest in the whole property and also in every parcel of it.<br>(2) Possession of the joint property by one co-owner is in the eye of law, possession of all even if all but one are actually out of possession.<br>(3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.<br>(4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession, of a co-owner must not only be exclusive but also hostile to the knowledge of the other, as, when a co-owner openly asserts his own title and denies that of the other.<br>(5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.<br>(6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners.<br>(7) Where a co-owner is in possession of separate parcels under an arrangement consented to by the other co-owners, it is not open to any one to disturb the arrangement without the consent of others except by filing a suit for partition.”</i></h4><h4 style=\"\">11. A Coordinate Bench of this Court in <i><b>Ashok Kapoor v. Murtu Devi, 2016 (1) Shim. LC 207</b></i>, had an occasion to deal with the issue of injunction, wherein it, having taken note of various judgments rendered by Constitutional courts, concluded as under:</h4><h4 style=\"margin-left: 25px;\"><i style=\"\">“46. On consideration of the various judicial pronouncements and on the basis of the dominant view taken in these decisions on the rights and liabilities of the co-sharers and their rights to raise construction to the exclusion of others, the following principles can conveniently be laid down:—<br>(i) a co-owner is not entitled to an injunction restraining another co-owner from exercising his rights in the common property absolutely and simply because he is a co-owner unless any act of the person in possession of the property amounts to ouster prejudicial or adverse to the interest of the co-owner out of possession.<br>(ii) Mere making of construction or improvement of, in, the common property does not amount to ouster.<br>(iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property.<br>(iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction to prevent such act which is detrimental to his interest.<br>(v) before an injunction is issued, the plaintiff has to establish that he would sustain, by the act he complains of some injury which materially would affect his position or his enjoyment or an accustomed user of the joint property would be inconvenienced or interfered with. (vi) the question as to what relief should be granted is left to the discretion of the Court in the attending circumsta nces on the balance of convenience and in exercise of its discretion the Court will be guided by consideration of justice, equity and good conscience.<br></i><i>47. The discretion of the Court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff:—<br>(i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff\'s rights by issue of a temporary injunction;<br>(ii) when the need for protection of the plaintiff\'s rights is compared with or weighed against the need for protection of the defendant\'s right or likely infringement of the defendant\'s rights, the balance of convenience tilting in favour of the plaintiff; and<br>(iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted.<br>In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff\'s conduct is free from blame and he approaches the Court with clean hands.”</i></h4><h4 style=\"\">13. Having heard learned counsel for the parties and perused the material available on record, there appears to be no illegality committed by learned Courts below while passing impugned judgment and order, especially when it stands established on record that the parties are joint owners of the suit land and at no point of time, exclusive possession of entire Khasra N. 176 was delivered to the plaintiff. <br></h4><h4 style=\"\">15. Since, there is statutory law governing relationship amongst cosharers inter se qua common property as such, matter is to be regulated by rules of justice, equity and good conscience. While considering question of injunction, which needs to be decided on each peculiar fact, it is always for the court to exercise/deny discretion in view of all the facts and circumstances of each case and to find out on which side balance of convenience lies. Though, in the case at hand, material available on record clearly reveals that nature of suit land is joint because, till date, no partition has taken place inter se parties in accordance with law, but plaintiff has not been able to prove that at the time of execution of sale deed dated 1.12.2014, he was given exclusive possession of Khasra No. 176, rather, as per his own case, he had purchased some share measuring 00-08-43 hectares in joint land/suit land. To the contrary, documentary evidence in the form of revenue papers, clearly suggests that defendant No. 1 was gifted specific area in Khasra No. 176 and at that time, possession of entire area of Khasra No. 176 was either with Dhani Ram or his successors, as is evident from Jamabandi for the years 1996-97 and 2015-16.<br>16. Question with regard to rights of co-shares to raise construction on joint land stands duly settled by a judgment passed by this Court in <i><b>Jatinder Kumar v. Kusum Lata, Latest HLJ 2016 (1) (HP) 638</b></i>, relevant portion whereof is reproduced herein below:</h4><h4 style=\"margin-left: 25px;\">“46. On consideration of the various judicial pronouncements and on the basis of the dominant view taken in these decisions on the rights and liabilities of the co-sharers and their rights to raise construction to the exclusion of others, the following principles can conveniently be laid down:—<br>(i) a co-owner is not entitled to an injunction restraining another co-owner from exceeding his rights in the common property absolutely and simply because he is a co-owner unless any act of the person in possession of the property amounts to ouster prejudicial or adverse to the interest of the co-owner out of possession.<br>(ii) Mere making of construction or improvement of, in, the common property does not amount to ouster.<br>(iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property.<br>(iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction to prevent such act which is detrimental to his interest. (v) before an injunction is issued, the plaintiff has to establish that he would sustain, by the act he complains of some injury which materially would affect his position or his enjoyment or an accustomed user of the joint property would be inconvenienced or interfered with.<br>(vi) the question as to what relief should be granted is left to the discretion of the Court in the attending circumstances on the balance of convenience and in exercise of its discretion the Court will be guided by consideration of justice, equity and good conscience.”</h4><h4 style=\"\"><span style=\"background-color: rgb(255, 255, 0);\"><b><br></b></span></h4><h4 style=\"\"><span style=\"background-color: rgb(255, 255, 0);\"><b>17. It is quite apparent from the aforesaid exposition of law that a co-owner is not entitled to an injunction restraining another co-owner from exercising his rights in the common property absolutely and simply because he is a co-owner unless any act of the person in possession of the property amounts to ouster prejudicial or adverse to the interest of the co-owner out of possession</b></span>. Mere making of construction or improvement in the common property does not amount to ouster rather, if by any act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property. If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction to prevent such act which is detrimental to his interest.<br></h4><h4 style=\"\">18. In<i><b> Sanjay Sood v. Roshan Lal, Latest HLJ 2006 (1) 209 HPHC, </b></i>it has been categorically held that when it stands established that co-owner is in exclusive possession of any property and he/she, after having spent huge sum, made some improvements, no injunction should be granted. Similarly, this court in Jatinder Kumar (supra) has categorically held that there can be no strait jacket formula to hold and conclude that in the absence of partition, a co-sharer cannot under any circumstance be permitted to raise construction over the joint land.<br></h4><h4 style=\"\">19. Similarly, in <i><b>Kuldeep Singh v. Jai Singh, Civil Court Cases 803 (P&H), </b></i>it has been held that temporary injunction can not be claimed by co-owner against other co-owner, who has been in exclusive possession of entire or part of property unless the act of co-owner amounts to ouster which is prejudicial or adverse to the interest of co-owner out of possession. In the case at hand, defendants have specifically stated that they shall have no objection, if the plaintiff raises construction on the vacant land.<br></h4><h4 style=\"\">20. In <i><b>Karam Singh v. Lakhbir Kaur, 2011 (3) Civil Court Cases 162, </b></i>it has been held that relief of injunction can be sought by a co-sharer against other co-sharers when such a co-sharer happens to be in exclusive possession of the land to the exclusion of other co-sharers, but when the possession of all the co-sharers is joint, relief of injunction cannot be sought by either of the co-sharers and the only relief which is available to the co-sharer is to seek partition by metes and bounds.<br></h4><h4 style=\"\">21. Having carefully perused the material available on record, this Court is in total agreement with the findings returned by learned Courts below that the plaintiff has not only failed to show prima facie case in his favour rather, none of other ingredients i.e. balance of convenience and irreparable loss or injury enabling this Court to exercise discretion, are missing, as such, no fault, if any can be found with the judgment and order passed by learned Courts below.<br>22. Hon\'ble Apex Court in <i><b>Seema Arshad Zaheer v. Municipal Corporation of Greater Mumbai, (2006) 5 SCC 282</b></i>, has held as under:<br></h4><h4 style=\"margin-left: 25px;\">“29. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff : (i) existence of a prima facie case as pleaded, necessitating protection of plaintiff\'s rights by issue of a temporary injunction; (ii) when the need for protection of plaintiff\'s rights is compared with or weighed against the need for protection of defendant\'s rights or likely infringement of defendant\'s rights, the balance of convenience tilting in favour of plaintiff; and (iii) clear possibility of irreparable injury being caused to plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff\'s conduct is free from blame and he approaches the court with clean hands.”<br></h4><h4 style=\"\">23. It can be safely inferred from aforesaid law laid down by this court that grant of temporary injunction is not to be claimed by a party as a matter of right nor can be denied by a court arbitrarily rather, discretion in this regard is to be exercised by a court on the basis of principles, as have been enunciated in the aforesaid judgment.<br></h4><h4 style=\"\">24. During proceedings of the case, learned Counsel appearing for the plaintiff, placed reliance upon various judgments rendered by Hon\'ble Apex Court as well as this Court i.e. <i><b>Parduman Singh v. Naruin Singh (1991 CCC 803 (HP), Nagesh Kumar v. Kewal Krishan (AIR 2000 HP 116), Shiv Chand v. Manghru (2007 (1) Shim. LC 389), Prabhu Nath v. Sushma (2014 (2) Shim. L.C. 1003).</b></i> Having carefully perused the aforesaid judgments pressed into service by learned Counsel appearing for the plaintiff, while asserting claim of the plaintiff, this Court finds that ratio laid down in aforesaid judgments is with regard to rights of co-sharer in the joint land, particularly where nature of the suit land is joint and land has not been changed and there is no kind of construction activity by any of co-sharers. <span style=\"background-color: rgb(255, 255, 0);\"><b>Very gist of the aforesaid judgments is that possession of one co-sharer is possession of all the co-sharers in joint land till the time same is partitioned by metes and bound. </b></span>However, in the case at hand, as clearly emerges from the pleadings as well as documents adduced on record that none of the parties have come with the plea that they are in joint possession of the suit land, rather, plaintiff himself has not come up with specific plea that he is in possession of any portion of joint land, rather, claim of plaintiff is that he is in exclusive possession of Khasra No. 176 by way of sale deed executed in his favour, but, as has been taken note herein above, there is no evidence worth credence available on record, suggestive of the fact that plaintiff was delivered possession of entire area of Khasra No. 176, rather, he has purchased minor share, as detailed above.<br></h4><h4 style=\"\">25. Consequently, the petition at hand is dismissed alongwith all pending applications. Interim orders, if any, are vacated. However, it is clarified that the construction, if any, raised during the pendency of suit, shall abide by final outcome of the suit filed by the plaintiff.<br></h4>', '836b27c1e9ad8974911e104aa6573bf9.jpeg', '15cfe46285b54c8d06a0cc975aa2eeb3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-03', 1, '', '', '2021-04-20 20:11:06', '2023-02-03 15:05:45'),
(701, 'PXoK3UOnorXI9fFmo3hRJY72F', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court Act, 1961. Regular First Appeals filed before the 2007 amendment, whose value is less than Rs.15 lakhs, have to be heard by the Division Bench. Amendment applies only to appeals filed after 28 August 2007. Kar HC 9:4:2021', '<h4>Muniyappa and others vs Range Gowda and others. </h4><h4>Regular First Appeal 1018 of 2006 decided on 9 April 2021. </h4><h4>Justice B. Veerappa and Justice Rajendra Badamikar. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/379281/1/RFA1018-06-09-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/379281/1/RFA1018-06-09-04-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: The present appeal is filed by the appellants/Objectors against the order dated 17.04.2006 made in Execution No.15242/2004 on the file of the learned XXVIII Addl. City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru city, rejecting the application filed by them under Order XXI Rules 97 to 101 of the Code of Civil Procedure for setting aside the judgment and decree passed in O.S. No.16586/2004. When the present appeal came up before this Court on 19.3.2021, this Court has passed following order:</h4><h4 style=\"margin-left: 25px;\">“The paragraph-8 of the Memorandum of Regular First Appeal depicts that the value of the suit schedule property is 14,25,000/- as valued by the decree holder in the suit. Therefore, the matter has to go before the appropriate Bench having the pecuniary jurisdiction. Office to check and proceed. In view of the above, office to proceed with the amended provisions of Section 5 of the Karnataka High Court Act, 1961 and in accordance with law.”<br></h4><h4 style=\"\">3. On verification, the office has put up a note, which reads as under:</h4><h4 style=\"margin-left: 25px;\">“In this connection, it is verified and found that, the amendment to provisions of Section 5 of Karnataka High Court Act 1961 was with effect from 27.08.2007. However, the present appeal is filed on 29.05.2006 i.e., prior to the said amendment. Before the amendment, the appeals having value of Rs.3,00,000/- and above were posted before Hon’ble Division Bench in view of earlier Section5(1) of Karnataka High Court Act and since, the value of present appeal is more than Rs.3,00,000/- i.e., Rs.14,25,000/- , the present appeal has to be heard by Hon’ble Division Bench. (In view of earlier Section 5(1) of Karnataka High Court Act)”<br></h4><h4 style=\"\">4. Subsequently, this Court by the order dated 01.04.2021 has observed that prima facie, the office is justified in mentioning in the office note that present appeal has to be heard by the Division Bench. However, at the request of learned counsel, the matter was adjourned to decide with regard to maintainability of the present appeal before the Division Bench.<br>5. Today, the matter has come up before the Court for orders on the office note regarding posting of the appeal before the Division Bench in view of earlier Section 5(i) of the Karnataka High Court Act, 1961.<br>6. We have heard the learned counsel for the parties on the office note.<br>7. Sri Shaker Shetty, learned counsel for the appellants contended that in view of the amended provisions of Section 5(i) of the Act, all First Appeals against a decree or order passed in a suit or other proceedings, the value of subject matter which exceeds fifteen lakh rupees shall be heard by a Bench consisting of not less than two Judges of the High Court and other First Appeals shall be heard by a Single Judge of the High Court. Since in the present case, the value of the suit schedule property is Rs.14,25,00,000/- for the purpose of jurisdiction, the appeal has to be heard by the learned Single Judge and not by the Division Bench of this Court.<br>8. Per contra, Sri S.P. Shankar, learned senior counsel for the Respondent No.1 contended that prior to amendment to Section 5(i) of the Act, all First Appeals against a decree or order passed in a suit or other proceedings, the value of subject matter, of which is rupees three lakhs or more, shall be heard by a Division Bench. He would further contend that Section 5(i) of the Act was amended<br>w.e.f. 28.8.2007 by substituting the words “of which is rupees three lakhs   or   more”   by   words   “which   exceeds   fifteen   lakhs”.<br>Admittedly, the present appeal was filed on 29.5.2006 i.e., prior to the amendment and therefore the Division Bench of this Court has jurisdiction to decide the present appeal and not the learned Single Judge.<br>9. In support of his contentions, learned senior counsel relied upon the following judgments:<br>(i) State<span style=\"white-space:pre\">	</span>of<span style=\"white-space:pre\">	</span>Bombay<span style=\"white-space:pre\">	</span>–vs-<span style=\"white-space:pre\">	</span>Purushottam<span style=\"white-space:pre\">	</span>Jog<span style=\"white-space:pre\">	</span>Naik<br>reported in AIR 1952 SC 317 {paragraph-7}<br>(ii) Garikapati –vs- Subbiah Choudhary reported in AIR 1957 SC 540 {paragraph 23(iv)}<br>12. Admittedly, the present appeal came to be filed on 29.5.2006. As on the date of filing the present appeal, Section 5(i) of the Act reads as under:<br></h4><h4 style=\"\">\"5(i) All First appeals against a decree or order passed in a suit or other proceedings, the value of subject matter, of which is rupees three lakhs or more shall be heard by a Bench consisting of not less than two Judges of the High Court and other First Appeals shall be heard by a Single Judge of the High Court.\" <br>14. At this stage, it is relevant to state that by Karnataka Act No.26 of 2007, Section 5(i) of the Karnataka High Court Act was amended w.e.f. 28th day of August 2007. Section 5(i) of the Act after the amendment reads as under:<br>“ 5(i) all First appeals against a decree or order passed in a suit or other proceedings, the value of subject matter, (which exceeds fifteen lakhs rupees) shall be heard by a Bench consisting of not less than two Judges of the High Court and other First Appeals shall be heard by a Single Judge of the High Court.”<br>15. By careful reading of Karnataka Act 26 of 2007, it clearly depicts that in Section 5(i) of the Act, the words, “of which is rupees three lakhs or more” are substituted by the words, “which exceeds fifteen lakh rupees” w.e.f 28th August 2007.<br>16. Further, Clause 5 of the Karnataka Act No.26 of 2007 is relating to pending cases, which clearly depicts that notwithstanding anything containing in this Act, all suits, appeals or revision and other proceedings connected therewith pending before the High Court, District Court, Court of Civil Judge, (Senior Division), Civil Judge (Junior Division) and small Causes Court, on the date of commencement of this Act shall be continued and disposed of by the respective courts in  which  they  are  pending as if the amendment made under this Act has not   been made.<br><span style=\"background-color: rgb(255, 255, 0);\"><b>17. Therefore, we are of the considered opinion that for the appeals filed before this Court prior to the amendment came into force i.e., for the appeals filed before 28th August 2007, the amendment made under this Act is not applicable.</b></span><br>18. Our view is fortified by the judgment of the Hon’ble Supreme Court in the case  of  Garikapati  –vs-  Subbiah  Choudhary reported in AIR 1957 SC 540, wherein the Hon’ble Supreme Court held at paragraph 23(iv) as under:</h4><h4 style=\"margin-left: 25px;\">23 (iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal<br></h4><h4 style=\"\">19. Our view is also fortified by the judgment of the Hon’ble Supreme Court in the case of  State  of  Bombay  –vs-  Purushottam Jog Naik  reported  in  AIR  1952  SC 317,  wherein the Hon’ble Supreme Court held at paragraph-7 as under:</h4><h4 style=\"margin-left: 25px;\">7. The construction of an Act which has been amended is now governed by technical rules and we must first be clear regarding the proper canons of construction. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. This is the rule in England: see Craies on Statute Law, 5th Edn., p. 207; it is the law in America: see Crawford on Statutory Construction, p. 110; and it is the law which the Privy Council applied to India in Keshoram Poddar v. Nundo Lal Mallick [54 IA 152 at 155] . Bearing this in mind it will be seen that the Act of 1950 remains the Act of 1950 all the way through even with its subsequent amendments. Therefore, the moment the Act of 1952 was passed and Section 2 came into operation, the Act of 1950 meant the Act of 1950 as amended by Section 2, that is to  say, the Act of 1950 now due to expire on the 1st of October, 1952.</h4><h4 style=\"\">20. In view of the aforesaid reasons, the contention of the learned counsel for the appellants that the present appeal has to be heard by the learned Single Judge cannot be accepted in view of the amended provisions of Section 5(i) of the Karnataka High Court Act, 1961 and Clause-5 of the Karnataka Act No.26 of 2007 stated supra.<br>21. In view of the above, the present Regular First Appeal is maintainable before the Division Bench of this Court. Office note is upheld and the present appeal has to be heard by the Division Bench of this Court and not by the learned Single Judge.<br>Ordered accordingly.<br>Post this matter in the hearing list.<br>Sd/- JUDGE<br>Sd/- JUDGE<br>Gss/-</h4><div><br></div>', '3c1ef533dc4e78075a2b922ca8bd1b22.PNG', '56f8c3502c3c93bfe643a0b061b2e1e0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-09', 1, '', '', '2021-04-20 22:22:24', '2021-04-20 22:25:37');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(702, 'HbBtN5g8ZHicpKA3eaBENJyOJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act, 1988. Section 147. Person travelling on mud-guard of a tractor is NOT an authorized passenger. Persons working on ploughing/crushing machines attached to tractor are NOT employees. Karnataka High Court. (Full Bench). 20 April 2021', '<h4>Gadhilingappa@Gadhilinga and another vs K.Guleppa and others. </h4><h4>Miscellaneous First Appeal Cross Objection 100001 of 20216 in Miscellaneous First Appeal 102649 of 2015 and connected matters decided on 20 April 2021. </h4><h4>Chief Justice Abhay S Oka, Justice H.T.Narendra Prasad and Justice Hemant Chandangoudar. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/379447/1/MFACROB100001-16-20-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/379447/1/MFACROB100001-16-20-04-2021.pdf   </a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:These MFA Cross Objections and MFAs are referred to the Full Bench for consideration of the following references made by the learned single judge: <br></h4><h4 style=\"margin-left: 25px;\"><b><i>(i) Whether a person travelling on a mud-guard of a tractor can be construed as an authorized passenger or an unauthorized passenger and liability of such person is covered or not? </i></b></h4><h4 style=\"margin-left: 25px;\"><b><i>(ii) Whether the persons who are working either on the ploughing or crushing machines attached to the tractor can be construed as employees so as to cover their risk statutorily under Section 147 of MV Act though there is only one seating capacity in the tractor apart from the driver?<br>(iii)<span style=\"white-space:pre\">	</span>Whether the crushing machine or ploughing machine or any other instrument attached to the tractor can be considered to be an attachment to the tractor so as to cover the risk of the insured in respect of employees and the policy taken in respect of the tractor alone? </i></b></h4><h4 style=\"margin-left: 25px;\"><b><i>(iv) What is the effect of Section 147 of MV Act to cover the statutory risk under the said situation?</i></b></h4><h4>10. For determining the reference made by the learned Single Judge, it is necessary to look into the provisions of the M.V Act, as it stood prior to the amendments made to it by the Act No. 32 of 2019 were brought into force. We have to consider the provisions of the M.V. Act before its amendment made by the Act No. 32 of 2019. Chapter XI of the M.V. Act deals with insurance of motor vehicles against third party risks. Sub-Section (1) of Section 146 of the M.V Act lays down that no person shall use, except as a passenger, or cause or allow any other person to use a motor vehicle in a public place, unless there is in force, in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of Chapter XI. Thus, by virtue of the above statutory provision, obtaining insurance against third party risk is made mandatory for the use of any motor vehicle in a public place. The requirement of having such a policy as provided in sub-sections (1) and (2) of Section 147 of the M.V. Act, for use of any motor vehicle in a public place, is mandatory.<br>12. On plain reading of sub-section (1) of Section 147 of the M.V. Act, it is clear that in order to comply with the requirements of the provisions of Section 146 and 147, a policy of insurance must be issued by an authorized insurer, as defined in clause (a) of sub-section (1) of Section 147.</h4><h4>13. The proviso to sub-section (1) of Section 147 of the M.V. Act lays down that the policy shall not be required to cover the liability in respect of a death, arising out of and in the course of employment, of the employee of the insured and in respect of bodily injury sustained by such an employee arising out of and in the course of employment. However, clause (i) of  the proviso further clarifies that a liability arising under the Workmen’s Compensation Act, 1923 (for short ‘the W.C. Act’) is required to be covered by the policy in respect of death or bodily injury to any such employees namely, (a) an employee engaged in driving the vehicle or (b) in case of a public service vehicle, a conductor of the vehicle or a person employed to examine the tickets on the vehicle and (c) if it is a goods carriage, being carried in the vehicle.   The limit of the liability  is laid down in sub-section (2) of Section 147. However, in this case, considering the scope of adjudication, we are not concerned with the same.</h4><h4>14. Thus, a statutory insurance policy covered by Section 147 of the M.V Act is not required to cover the liability in respect of the death of an employee arising out of and in the course of his employment of the insured or liability in respect of bodily injuries sustained by such an employee arising out of and in the course of his employment. However,  the exception is that the liability in respect of the death of or bodily injury to the employees mentioned in sub-clauses (a) to (c) of clause (i) of the proviso to Section 147 of the M.V Act, arising under the W.C Act is required to be covered by a statutory policy. Thus, in other words, a policy of insurance is not required to cover the liability arising of death of an employee or bodily injury to an employee unless it is a liability under the W.C. Act in respect of the employees mentioned in sub-clauses (a) to (c) of clause (i) of the proviso to sub-section (1) of Section 147.<br>15. Sub-Section (1) of Section 147 of the M.V. Act specifically includes certain categories of persons sitting in the vehicle which is involved in the accident whose liability is required to be covered. Therefore, it emerges that unless sub- section (1) of Section 147 specifically mentions that the liability of a person or a class of persons is required to be covered under a policy of insurance, the same is not required to be mandatorily covered. Sub-clause (i) of clause (b) of sub- section (1) of Section 147 clearly lays down that the policy must cover the liability of death of or bodily injury to any person including owner of the goods or his authorized representative carried in the vehicle. Obviously, it refers to liability in respect of the owner of the goods or his authorized representative when they are carried in a goods carriage, as defined in sub- section (14) of Section 2 of the M.V. Act. Thus, in a goods carriage, if the owner of the goods or his authorized representative is carried, any liability which incurred in respect of the death of or bodily injury to such persons is required to be covered by a policy of insurance. In view of clause (i) (c) of the proviso to sub-section (1) of Section 147 of the M.V. Act, the liability arising out of the death of or bodily injury to authorized employees of the owner of the goods carried in goods carriage is required to be covered. In view of sub-clause (b) of clause (i) of proviso to sub-section (1) of Section 147, the liability arising out of the injury to conductor or ticket examiner in a public transport vehicle is required to be covered. As provided in sub-clause (a) of clause (i) of the proviso to sub-section (1) of Section 147, even the liability of death of, or bodily injury to a driver of the insured is required to be covered by a policy of insurance. <br>16. Now coming back to the first part of sub-section (1) of Section 147 of the M.V. Act, the reference therein to the liability in respect of death of or bodily injury to any person mentioned therein is obviously to death of a third party or bodily injury to a third party who is not occupying the insured vehicle. The reason is that the person or class of persons occupying the vehicle whose risk is required to be covered are specifically mentioned in proviso to sub-section (1) of Section 147. The liability of damage caused to the property of the third party for the use of vehicle in a public place will have to be also covered. It is in this context, the questions formulated by the learned Single Judge will have to be considered.<br>17. For answering the four questions formulated by the learned Single Judge, it is necessary to decide the question whether a tractor can be termed as a ‘goods carriage’ as defined in sub-section (14) of Section-2 of the M.V. Act. If we peruse the various sub-clauses of Section-2 of the M.V. Act, the classification of various motor vehicles has been made thereunder with reference to its nature or its weight or its user. “Motor Vehicle” is defined under sub-section (28) of Section 2 which means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source. A ‘tractor’  is defined in sub-section (44) of Section-2 of the M.V. Act. <br>.... the condition precedent for applicability of the definition of ‘trailer’ is that it must be a vehicle which is drawn or intended to be drawn by a motor vehicle. The definition of ‘trailer’ specifically excludes a semi-trailer. Sub-section (39) of Section 2 of the M.V. Act defines ‘semi-trailer’. <br>.., a semi trailer is a vehicle which is not mechanically propelled. In view of the definition of “motor vehicle” defined under sub-section (28) of Section 2 of the M.V. Act, the vehicle must be mechanically propelled adapted for use upon roads. Therefore, a semi-trailor by itself will not be covered by the definition of motor vehicle. Moreover, a trailer as defined in sub-section (46) of Section 2 is not a semi-trailer.<br>18. A goods carriage is defined in sub-section (14) of Section 2 of the M.V. Act. <br>19. Sub-section (23) and (16) of Section 2 of the M.V. Act are also relevant which define ‘medium goods vehicle’ and ‘heavy goods vehicle’ respectively.  </h4><h4>20. On plain reading of the definition of sub-section (14) of Section-2 of the M.V. Act, a tractor is not included in the definition of goods carriage, as by its very nature, it is not constructed or adapted to carry any load other than the equipments used for the purpose of propulsion.<br>16. A tractor fitted with a trailer may or may not answer the definition of goods carriage contained in Section 2(14) of the Motor Vehicles Act. The tractor was meant to be used for agricultural purposes. The trailer attached to the tractor, thus, necessarily is required to be used for agricultural purposes, unless registered otherwise. It may be, as has been contended by Mrs K. Sharda Devi, that carriage of vegetables being agricultural produce would lead to an inference that the tractor was being used for agricultural purposes but the same by itself would not be construed to mean that the tractor and trailer can be used for carriage of goods by another person for his business activities. The deceased was a businessman. He used to deal in vegetables. After he purchased the vegetables, he was to transport the same to the market for the purpose of sale thereof and not for any agricultural purpose. The tractor and trailer, therefore, were not being used for agricultural purposes. However, even if it be assumed that the trailer would answer the description of “goods carriage” as contained in Section 2(14) of the Motor Vehicles Act, the case would be covered by  the  decisions  of  this  Court in Asha Rani and other decisions following the same, as the accident had taken place on 24-11- 1991 i.e. much prior to coming into force of the 1994 amendment.<br>22. Question No (I) framed by the learned Single Judge is whether liability of a person travelling on a mud-guard of a tractor is required to be covered by an insurance policy. </h4><h4><b style=\"background-color: rgb(255, 255, 0);\">a driver of a tractor is not permitted to carry or allow any person to be carried on a tractor including on its mud-guard. </b> <br>23.The Apex Court has reiterated that a tractor could lawfully accommodate only one person, namely, the  driver. The Apex Court categorically held that the appellant in the said case had travelled in the tractor as a passenger even though the tractor could accommodate only one person namely the driver. <b style=\"background-color: rgb(255, 255, 0);\">It was categorically held that the insurer was not liable  to indemnify the owner of the tractor for the liability of a passenger travelling on the tractor. </b>Hence, in view of the dictum of the Apex Court referred above, the liability of a person sitting on the mud-guard of a tractor is not required to be covered by statutory insurance policy, as contemplated by sub-section (1) of Section 147 of the M.V. Act.<br>33. Hence, in view of the decisions of the Apex Court in the case of V. Chinnamma, Shivaraj and Darshana Devi (supra) and the analysis made above, <b style=\"background-color: rgb(255, 255, 0);\">we have no manner of doubt that a liability of a person working either on the ploughing or crushing machines attached to the tractor and who is travelling on the mud-guard of the tractor is not required to be covered by the statutory insurance as contemplated under sub-section (1) of Section 147 of the M.V. Act.</b><br><br>34. The question Nos (ii) and (iii) relate to the persons who are working either on the ploughing or crushing machines or any other instrument/equipment attached to a tractor. The question is whether they can be construed as employees so as to cover their risk statutorily under Section 147 of the M.V. Act. Considering the definition of ‘trailer’ which we have already quoted above, a ploughing or a crushing machine attached to a tractor is not a trailer. The definition of ‘semi-trailer’ contained under sub-section (39) of Section 2 makes it very clear that a ‘semi-trailer’ is not a trailer. A semi-trailer means a vehicle not mechanically propelled (other than a trailer), which is intended to be connected to a motor vehicle and which is so constructed that a portion of it is super-imposed on, and a part of whose weight is borne by, that motor vehicle. Therefore, every instrument including ploughing or crushing machine attached to a tractor will not necessarily be a trailer. At highest, it can be a semi-trailer. Even assuming that the said two categories of equipments are semi-trailers, the same are not the motor vehicle covered by sub-section (28) of Section 2 of the M.V. Act. Since a semi-trailer is not a motor vehicle, the provisions of Section 147 of the M.V. Act will not apply to it. Chapter-XI deals with the insurance of motor vehicles and, therefore, even the provision of Section 147 of the M.V. Act deals with insurance of motor vehicles. Even assuming that it is an attachment to the tractor, it is not required to be covered by a statutory policy of insurance as such attachments are not motor vehicles. In view of sub-clauses (a) to (c) of clause (i) of proviso to sub-section (1) of Section 147 of the M.V. Act, the liability of employees working on such instruments like ploughing or crushing machine attached to a tractor is not required to be covered by a policy of insurance in respect of a tractor issued in terms of sub-section (1) of Section 147 of the<br>M.V. Act.<br>35. Therefore, for the foregoing reasons, both the question Nos (ii) and (iii) will have to be answered in the negative. Hence, we answer the reference as under:<br><b style=\"background-color: rgb(255, 255, 0);\">i) Question No (i) is answered in terms of paragraph Nos 23 and 33. Question Nos (ii) and (iii) are answered in the negative; </b><br>ii) Question No (iv) need not be answered separately, in view of our answers to  question Nos (i) to (iii), it stands answered;<br>iii) All the pending appeals and cross objections arising out of this group of appeals shall be placed before the concerned Benches having roster for consideration and disposal.<br><br></h4>', '4122eed7e2092d7a22a0eb68677cbdf7.PNG', 'aede2b99c3392565c88a6fd55fedc960.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-20', 1, '', '', '2021-04-20 23:33:39', '2021-04-20 23:38:01'),
(703, '8F95oMjflcK7kGLOEPJRldxP0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Principles of Natural Justice. In the absence of any legal right, the principles do not apply. Authority passing resolution in favour of a person without any statutory backing can withdraw it without prior notice. Karnataka High Court. 7 April 2021', '<h4>Bangalore Development Authority and others vs Offshore Holdings Pvt Ltd and another. </h4><h4>Writ Appeal 1966 of 2013 decided on 7 April 2021.  </h4><h4>Justice Alok Aradhe and Justice M.G.S. Kamal. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/378880/1/WA1966-13-07-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/378880/1/WA1966-13-07-04-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:  In this appeal preferred under Section 4 of Karnataka High Court Act, 1961 the appellants (hereinafter referred to as the \'Authority\' for short) have assailed the validity of the order dated 14.12.2012 by which learned Single Judge has allowed the writ petition preferred by respondent No.1 (hereinafter referred to as \'the Company\' for short) and proceeding for acquisition of the land initiated for benefit of the authority has been quashed. In order to appreciate the authority\'s challenge to the impugned order, few facts need mention, which are stated hereinafter.<br>6. Learned Senior counsel for the appellant submitted that under Section 48(1) of the Act, the competent authority viz., the State Government alone can withdraw the land acquisition proceedings and the resolution No.1084 dated 28.06.1988 is passed by the authority is only a recommendation and not an order under Section 48(1) of the Act. It is also pointed out that there is no order de-notifying the land and resolution dated 28.06.1988 does not create any vested right in the owners of the land much less the company, which is a subsequent purchaser. It is therefore, contended that principles of natural justice do not apply insofar as it pertains to second resolution No.325/1997 dated 31.12.1997. It is contended that in the light of Section 36(3) of the 1976 Act, the land will initially vest in the State Government and thereafter, shall vest in the authority upon transfer of land from the Deputy Commissioner. It is also contended that both the resolutions were passed by the Authority prior to vesting of the land. It is also urged that learned Single Judge erred in recording a finding that possession of the land has not been taken over in the absence of any pleading either in the original writ petition or amended writ petition and the same is contrary to record.<br>9. Learned Senior Counsel for Company submitted that resolution dated 31.12.1997 passed by the Bangalore Development Authority withdrawing its earlier resolution dated 28.06.1988 which exempted the lands in question from the purview of land acquisition has been passed in gross violation of principles of natural justice. It is further submitted that neither any opportunity of hearing was given to the owners of the land nor the company before passing the resolution dated 31.12.1997. It is also submitted that provisions of Section 19(3),(4),(5) & (6) are special provisions, by which authority is competent to alter the scheme by deletion of a portion of land from the areas already notified and such deletion would be effective and complete and would go outside the scheme itself. It is also contended that such alteration would not require the procedure to be complied with prescribed under Section 48(1) of the Act. Since, Section 19(3) to 19(6) are special provisions and are part of the code which is self contained. It is further contended that submission of the authority that it did not pass the resolution dated 28.06.1988 is misconceived as the lands have vested in the State Government and therefore, the authority could not have released the land from acquisition. It is also contended that de-notification of the Act is a ministerial act and that beyond issuance of Notification under Section 19 of the 1976 Act all other action for acquisition of the land are required to strictly taken in accordance with provisions of the Act. It is argued that provisions of Section 9, 11, 12,and 16 of the Act have to be strictly construed as the same is an ex-proprietory legislation.<br><b style=\"background-color: rgb(255, 255, 0);\">LEGAL PRINCIPLES:</b><br>14. We have considered the submissions made by learned counsel for the parties and have perused the record. Before proceeding further, it is apposite to take note of well settled legal principles. It is trite law that in the absence of any legal right, this court would not issue a writ of mandamus. It is equally well settled law that preparation  of panchanama is a well accepted mode of taking possession in respect of an open land. We may refer to Wade\'s Administrative Law, 9th Edition, Page 500, wherein while dealing with principles of natural justice, which reads as under:</h4><h4 style=\"margin-left: 25px;\">\"The classic situation in which the principles of natural justice apply is where some legal right, liberty or interest is affected, for instance where a building is demolished or an office-holder is dismissed or a trader\'s licence is revoked. But good administration demands their observance in other situations also, where the citizen may legitimately expect to be treated fairly.\"</h4><h4>15. It is equally well settled legal proposition that in the absence of any legal right, the principles of natural justice do not apply. <br>21.In the absence of any statutory provision, which empowers the authority to modify the scheme on its own, it cannot be held that provisions of Sub-Section (5) and (6) are attracted. It is also pertinent to note that in the entire petition, the company has not questioned the validity of the panchanama. It is also noteworthy that permission to construct the culvert has been granted in respect of an adjoining land and not in respect of the land in question, which is the subject matter of this appeal. In any case, even assuming that second resolution for any other reason is held to be invalid, no mandamus can be issued in the absence of any legal right and corresponding legal duty to comply with the first resolution. Similarly, since, no legal right have accrued to the owner of the land and to the company while passing the first resolution dated 28.06.1988, therefore, the question of application of principles of natural justice while passing the second resolution dated 31.12.1997 does not arise. It is well settled in law that in order to claim the relief, the aggrieved person has to plead and prove the legal right founded on such relief. It is also pertinent to note that the company in the writ petition has no where has challenged the validity of the award.<br>In view of preceding analysis, the order dated 14.12.2012 passed by the learned Single Judge is hereby quashed and the writ petition preferred by the company is dismissed.<br>In the result, the appeal is allowed.<br>Sd/- JUDGE<br>Sd/- JUDGE<br>SS</h4><div><br></div>', '07fc06b39b12de3c22e6eb9d811a0623.PNG', 'f076b8a2c9c3ed08c9f76fc6fcd9f2a5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-07', 1, '', '', '2021-04-21 00:00:40', '2021-04-21 00:35:48'),
(705, 'fjEI0VQc2dwSAHqOhRXVoWV9B', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act, 1996. Two Indian companies can choose a forum for arbitration outside India. An arbitral award arising from such an arbitration would be a foreign award. Supreme Court. 20 April 2021', '<h4>PSL Wind Solutions Private Limited vs GE Power Conversion India. Civil </h4><h4>Appeal 1647 of 2021 decided on 20 April 2021. </h4><h4>Justice Rohinton Fali Nariman, Justice B.R.Gavai and Justice Hrishikesh Roy. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/2818/2818_2021_33_1501_27661_Judgement_20-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/2818/2818_2021_33_1501_27661_Judgement_20-Apr-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 2. The present appeal raises an interesting question – as to <b style=\"background-color: rgb(255, 255, 0);\">whether two companies incorporated in India can choose a forum for arbitration outside India – and whether an award made at such forum outside India, to which the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 [“New York Convention”] applies, can be said to be a “foreign award” under Part II of the Arbitration and Conciliation Act, 1996 and be enforceable as such. The Arbitration and Conciliation Act, 1996</b></h4><h4>6. Having heard learned counsel for both parties, it is first necessary to set out the relevant provisions of Part I and Part II of the Arbitration Act. Seat of the arbitral proceedings in the present case<br>11. The Arbitration Act is in four parts. Part I deals with arbitrations where the seat is in India and has no application to a foreign-seated arbitration. It is, therefore, a complete code in dealing with appointment of arbitrators, commencement of arbitration, making of an award and challenges to the aforesaid award as well as execution of such awards. On the other hand, Part II is not concerned with the arbitral proceedings at all. It is concerned only with the enforcement of a foreign award, as defined, in India. Section45 alone deals with referring the parties to arbitration in the circumstances mentioned therein. Barring this exception, in any case, Part II does not apply to arbitral proceedings once commenced in a country outside India.<br>12. Even before the Arbitration Act of 1996, India, being one of the earliest signatories to the New York Convention, legislated in accordance therewith and enacted the Foreign Awards Act in 1961.  <br>15. Section 44 of the Arbitration Act is modelled on Articles I and II of the New York Convention. <br>21. Under section 44 of the Arbitration Act, a foreign award is defined as meaning an arbitral award on differences between persons arising out of legal relationships considered as commercial under the law in force in India, in pursuance of an agreement in writing for arbitration to which the New York Convention applies, and in one of such territories as the Central Government, by notification, declares to be territories to which the said Convention applies. <br>28. It is clear that this Court categorically held that a foreign award cannot be refused to be enforced merely because it was made between two Indian parties, under pari materia provisions of the Foreign Awards Act. The Court also held that since this plea had never been taken in any of the courts below, it was not available to the appellant to raise the said plea before this Court for the first time. <br>31. It is interesting to note that under U.S. law, an arbitration agreement or award made between two U.S. citizens shall not fall under the New York Convention unless such relationship involves properties located abroad, envisages performance of a contract, entered in the U.S., to take place abroad, or has some reasonable connection with one or more foreign states. <br>49. A reading of the aforesaid judgments leads to the conclusion that freedom of contract needs to be balanced with clear and undeniable harm to the public, even if the facts of a particular case do not fall within the crystallised principles enumerated in well-established ‘heads’ of public policy. The question that then arises is whether there is anything in the public policy of India, as so understood, which interdicts the party  autonomy of two Indian persons referring their disputes to arbitration at a neutral forum outside India.<br>50. It can be seen that exception 1 to section 28 of the Contract Act specifically saves the arbitration of disputes between two persons without reference to the nationality of persons who may resort to arbitration. It is for this reason that this Court in Atlas (supra) referred to the said exception to section 28 and found that there is nothing in either section 23 or section 28 which interdicts two Indian parties from getting their disputes arbitrated at a neutral forum outside India. <br>52. It can be seen that section 28(1)(a) of the Arbitration Act makes no reference to an arbitration being conducted between two Indian parties in a country other than India, and cannot be held, by some tortuous process of reasoning, to interdict two Indian parties from resolving their disputes at a neutral forum in a country other than India.  </h4><h4>57. It will thus be seen that where the law of India prohibits a certain act, the conflict of law rules as set down in Dicey’s authoritative treatise will take care of this situation in most cases as the arbitrators would then apply these rules on the ground of international comity between nations in cases which arise between two Indian nationals in an award made outside India, which would fall within the definition of “foreign award” under Section 44 of the 1996 Act.<br>59. When it comes to the ground raised under section 34(2A) of the Arbitration Act, it is clear that in an international commercial arbitration, say, between an Indian national habitually resident outside India and an Indian national resident in India, even when the arbitration takes place in India resulting in an award being made in India, the ground available under section 34(2A) would not be available, as it would not apply to an international commercial arbitration held in India. In agreeing to a neutral forum outside India, parties agree that instead of one bite at the cherry under section 34 of the Arbitration Act, where an arbitration between two Indian nationals is conducted in India [with the grounds for setting aside the award being available under section 34(2A)], what is instead put in place by the parties is two bites at the cherry, namely, the recourse to a court or tribunal in a country outside India for setting aside the arbitral award passed in that country on grounds available in that country (which may be wider than the grounds available under section 34 of the Arbitration Act), and then resisting enforcement under the grounds mentioned in section 48 of the Arbitration Act. The balancing act between freedom of contract and clear and undeniable harm to the public must be resolved in favour of freedom of contract as there is no clear and undeniable harm caused to the public in permitting two Indian nationals to avail of a challenge procedure of a foreign county when, after a foreign award passes muster under that procedure, its enforcement can be resisted in India on the grounds contained in section 48 of the Arbitration Act, which includes the foreign award being contrary to the public policy of India.</h4><h4>Party Autonomy</h4><h4>60. The decks have now been cleared to give effect to party autonomy in arbitration. ....<b style=\"background-color: rgb(255, 255, 0);\">Nothing stands in the way of party autonomy in designating a seat of arbitration outside India even when both parties happen to be Indian nationals, as has been held hereinabove</b></h4><h4><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br></h4><p><br></p>', '20fb5344a6b2b8ee3eacf61f48bd689c.PNG', '7a4f802d2a48487fc5eaefaba48e0e0a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-20', 1, '', '', '2021-04-21 16:58:53', '2021-04-21 17:02:07'),
(706, '402pUHQke5Wak6Dx3rI0yrlFg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act,1881. Section 138. When there is delay in filing complaint and application under Section 142B is filed, magistrate can NOT straightaway take cognizance without issuing notice on the application. Karnataka High Court. 31:3:2021', '<h4>T.C.Chandraiah vs D.R.Lingaiah by LRs. </h4><h4>Criminal Revision Petition 73 of 2019 decided on 31 March 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/379307/1/CRLRP73-19-31-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/379307/1/CRLRP73-19-31-03-2021.pdf  </a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 2.<span style=\"white-space:pre\">	</span>The petitioner was the accused in criminal case No.433/2013 on the file of Senior Civil Judge and JMFC, Channapatna, initiated by the respondent-complainant herein for the offence punishable under Section 138 of Negotiable Instruments Act <br>4. In view of delay of 15 days in filing the complaint, the respondent-complainant had filed an application under Section 142B of the Act for condonation of delay in filing the complaint, but the trial Court did not consider the said application and proceeded to take cognizance and issue process.<br>5.The accused appeared before the trial Court and pleaded not guilty for the charges leveled against him for the offence punishable under Section 138 of the Act.<br>6. The trial Court, on analysis of the evidence adduced by respective parties, arrived at a factual finding that the petitioner- accused had duly issued the cheque in question for a sum of Rs.2,50,000/- for repayment of loan availed from the respondent- complainant, the cheque was presented to the bank for payment within the period of its validity, but the said cheque had been returned unpaid for want of funds in the bank account of petitioner- accused on which the cheque was drawn. The statutory notice of dishonour was duly issued for which the petitioner-accused has given untenable reply. Further it is held that in view of the presumption available under Section 139 of the Act and since the accused has not rebutted the presumption available under Section 139 of the Act and has not questioned the financial capacity of the respondent- complainant to advance the loan of Rs.2,50,000/-, the existence of the legally repayable debt proved, and the petitioner-accused has failed to repay the debt. Thereby, he has committed the offence punishable under Section 138 of the Act.<br>7. The first appellate Court affirmed the factual findings of the trial Court and has held that the cheque produced by the respondent-complainant admittedly belongs to the petitioner- accused and there is no denial of the signature found therein. The initial burden has been discharged by the respondent-complainant, as such, the presumption under Sections 118 and 139 of the Act comes into operation, but the petitioner-accused has failed to probablise his defence. With the said reasoning, the first appellate Court has dismissed the appeal filed by the revision petitioner- accused. <br>11. In the present revision petition, the legality of the orders passed by the Courts below is challenged mainly on the ground of non-consideration of the point regarding delay in filing the complaint and also the application filed by the respondent- complainant under Section 142B of the Act for condonation of delay in filing the complaint.<br>15. In the present case, the complainant had filed an application under Section 142B of N.I.Act and Section 5 of Limitation Act supported by the affidavit sworn by him explaining the reason for 15 days delay caused in fling the complaint. Learned counsel for the petitioner-accused contends that when the application for condonation of delay is filed, the notice should have been issued on the said application to the accused, but the trial Court has posted the case for sworn statement of complainant and on recording the sworn statement, has taken cognizance of the offence punishable under Section 138 of the Act against the petitioner-accused and has directed the office to register the complaint and issued summons to the accused. As such, the accused had no opportunity to know about the delay caused in filing the complaint.<br>20. In view of the aforesaid decisions, it is necessary to consider whether due to non-consideration of the application under Section 142B of N.I.Act filed by the complainant for condonation of delay in filing the private complaint has jeopardized and has resulted in failure of justice or caused any prejudice to the rights of the accused. The every judicial act is subject to the procedure required by natural justice. It is fundamental to fair procedure that both sides should be heard and no Court shall overlook the said principle. <br>21. ....Thus, it is evident that the trial Court unilaterally deprived the accused to putforth his defence in respect of the right accrued to him on account of the delay caused in filing the complaint. The provisions of Section 142B of the Act will have to be read in tandem with Section 142A which starts with a non-obstante clause that ‘no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque’. Clause (b) specifies that such complaint shall be made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 142. When there is a delay in filing the complaint, necessarily the complainant will file an application for condonation of delay. When such application is filed, notice obviously will have to be issued to the other side before the order is passed either allowing the application or declining the same. Since no notice was issued on the application filed under Section 142B read with Section 5 of Limitation Act, the accused had no opportunity to raise objections regarding limitation.<br>22. For the foregoing reasons, this Court is of the view that the proceedings initiated against the petitioner-accused without considering the application for condonation of delay is not in accordance with law. Hence, the following:<br>ORDER<br>i. Revision petition is allowed.<br>ii. The judgment and order dated 16.02.2015 passed in C.C.No.433/2013 on the file of Senior Civil Judge and JMFC, Channapatna, and the judgment and order dated 02.01.2019 passed in Crl.A.No.5/2011 on the file of Principal District and Sessions Judge, Ramanagara, are set-aside.<br>iii. The matter is remanded to the trial Court to pass appropriate orders on the application under Section 142B of N.I.Act read with Section 5 of Limitation Act for condonation of delay, which is already on record, at the earliest and dispose of the matter on merits preferably within four months from the date of appearance of parties.<br>iv. Both the parties shall appear before the trial Court on 22.04.2021.<br><br> </h4>', '368685e4265ca589cd24073cba75c38f.jpg', '5957688154fb923b583d2ee2b16c60d9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-31', 1, '', '', '2021-04-21 23:23:11', '2021-04-21 23:25:51'),
(707, 'ljt4a0rFVxsAt3fsVgY2qpHAg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land Acquisition Act 1894. Land acquired and vested with the Government can NOT be withdrawn.  Unless there is material to rebut statutory presumption, notification under Section 16(2) is evidence of taking possession. Karnataka High Court. 12 April 2021', '<div class=\"WordSection1\">\r\n\r\n<h4><span style=\"font-size: 22.6667px;\">M/s. Annapurna Education Trust vs The Commissioner, Bangalore Development Authority and others. Writ Appeal 302 of 2013 decided on 12 April 2021.<br></span><span style=\"font-size: 22.6667px;\">Justice Alok Aradhe and Justice M.G.S. Kamal. </span></h4><h4><span style=\"font-size: 22.6667px;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380110/1/WA302-13-12-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380110/1/WA302-13-12-04-2021.pdf  </a><br></span><span style=\"font-size: 22.6667px;\"><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 1 to 3.  </span><span style=\"font-size: 22.6667px;\">In this intra court appeal, the appellant - Trust has assailed the validity of the order dated 11.06.2012 passed by the learned Single Judge. In order to appreciate the appellant\'s challenge to the impugned order, relevant facts need mention which are stated hereinafter. </span><span style=\"font-size: 22.6667px;\">The lands measuring 6 acres and 31 guntas including land measuring 33 guntas of Survey No. 24 of Kothanur Village, Uttarahalli Hobli, Bangalore South Taluk </span><span style=\"font-size: 22.6667px;\">(land in question) were notified for acquisition under section 17(1) of the Bangalore Development Authority Act, 1976 (hereinafter referred to as the \'1976 Act\', for short) vide notification dated 23.03.1988. Thereafter, a final notification under Section 19(1) of the 1976 Act was issued on 19.10.1994. The vendors of the appellant purchased the land in question on 27.09.1995 by 5 registered sale deeds. Thereafter, an award was passed on 28.09.1995. The possession of the land is stated to have been taken on 03.02.1996. The Trust appears to have filed an application to the State Government seeking withdrawal of the land from acquisition proceeding in respect of land measuring 33 guntas. Thereupon the State Government by a notification dated 08.06.2010 issued under section 48(1) of the Land Acquisition Act, 1894 withdrew the land measuring 33 guntas from acquisition proceedings. The Trust thereafter has purchased the land in question vide registered sale deed dated 30.08.2010. </span><span style=\"font-size: 22.6667px;\">The said notification was challenged by the persons to whom the land in question was allotted in respect of a </span><span style=\"font-size: 22.6667px;\">residential layout formed by the Bangalore Development Authority namely J.P. Nagar 8th Stage layout, Bangalore. The learned Single Judge vide order dated 11.06.2012, after perusal of the record produced before him inter alia held that possession of the land in question was taken over by the competent authority and mere non-issuance of a notification under 16(2) of the Act is not a ground for holding that possession of the land has not been taken. It was further held that since the possession of the land in question was taken, therefore it was not open to the Government to invoke the powers under section 48(1) of the Act for withdrawal of land from acquisition, as the land has vested in the State Government. It was further held that the scheme framed in respect of land in question has not lapsed under Section 27 of the 1976 Act. Learned Single Judge accordingly quashed the notification dated 08.06.2010 in respect of the land in question. In the aforesaid factual background, this appeal has been filed by the Trust.</span><span style=\"font-size: 22.6667px;\"><br></span><span style=\"font-size: 22.6667px;\">9. The Constitution Bench of the Supreme Court in \'Indore Development Authority vs Manoharlal NDORE DEVELOPMENT AUTHORITY Vs. MANOHARLAL\' (2020) 8 SCC 129 has held as follows:<br></span><span style=\"font-size: 22.6667px;\">\"127. Under Section 48 of the Act of 1894, withdrawal of the land acquisition proceedings was permissible only if the possession has not been taken under Section 16 or 17(1). </span></h4><h4><span style=\"font-size: 22.6667px;\">10. In the instant case, from careful scrutiny of the record, it is axiomatic that possession of the land in question bearing Sy.No.24 has been taken on 03.02.1996 which can be gathered from recital in Notification dated 06.02.2012 issued under Section 16(2) of the Act. The notification under Section 16(2) of the Land Acquisition Act, 1896, was issued on .06.02.2012.<b style=\"background-color: rgb(255, 255, 0);\"> Thus, the aforesaid notification is evidence of the fact that possession of the land in question has been  taken. There is no cogent material on record to rebut the statutory presumption.</b></span></h4><h4><span style=\"font-size: 22.6667px;\"></span><span style=\"font-size: 22.6667px;\">11. For the aforesaid reasons, we concur with the finding recorded by the learned Single Judge that possession of the land in question was taken.</span><span style=\"font-size: 22.6667px;\"> </span><span style=\"font-size: 22.6667px;\"><br></span><span style=\"font-size: 22.6667px; background-color: rgb(255, 255, 0);\"><b>12. In view of the unambiguous language employed by the legislature in Section 48(1) of the Act and in view of the well settled legal position emerging from interpretation of Section 48(1) of the Act by the Supreme Court, it is clear as noon day, that since possession of the land in question was taken by the State Government, the power under Section 48(1) of the Act could not have been invoked.</b></span><span style=\"font-size: 22.6667px;\"><br></span><span style=\"font-size: 22.6667px;\">13. For yet another reason, order passed by the learned Single Judge does not call for any interference. Admittedly, appellant - Trust has acquired title in respect of land in question vide registered sale deed dated 30.08.2010<br></span><span style=\"font-size: 22.6667px;\">i.e. much after passing of the award on 28.09.1995. The Trust, at the time it made an application to the State Government for withdrawing from acquisition of land, had no title in respect of land and therefore, it had no locus to move an application under Section 48 of the Act. Similar view has been taken in \'Indore Development Authority vs Manoharlal (2020) 8 SCC  129.  On  this  ground  also, no interference is called for in the impugned order.</span><span style=\"font-size: 22.6667px;\"><br></span><span style=\"font-size: 22.6667px;\">14. So far as the contention with regard to lapsing of scheme under Section 27 of the Act is concerned, the learned Single Judge in paragraphs 27 and 28 of the order has held as under:</span></h4><h4 style=\"margin-left: 25px;\"><span style=\"font-size: 22.6667px;\">\"27. This Court in R. Adikesavulu Naidu\'s </span><span style=\"font-size: 22.6667px;\">case (supra), has held that the scheme of J.P Nagar 8th Stage has lapsed under Section 27 of the Act. In paragraphs 141 and 142, this Court has observed as under:<br></span><span style=\"font-size: 22.6667px;\">“141. In the result, a writ of certiorari is issued to quash the acquisition proceedings in respect of subject lands which are covered under the preliminary Notification and final Notifications, but which have not vested in the State Government within the period of five years from the date of issue of the final Notification.</span><span style=\"font-size: 22.6667px;\"><br></span><span style=\"font-size: 22.6667px;\">142. The BDA is restrained from further implementation of the lapsed scheme if it is to be to the detriment and adverse to the interest of the land owners whose lands have, as a consequence of this order, revert to them.”</span></h4><h4 style=\"margin-left: 25px;\"><span style=\"font-size: 22.6667px;\">28. It is clear that the Learned Single Judge has quashed the acquisition proceedings in respect of the subject matter of those writ petitions, which have not been vested in the State Government within a period of five years from the date of issue of the final notification. The </span><span style=\"font-size: 22.6667px;\">Court has not interfered with the land, which has already been vested in the State Government and layout has been formed. Therefore, there is no merit in the contention of the Learned Counsel for the Trust that the acquisition proceedings even in respect of the land in question has lapsed.\"</span></h4><h4 style=\"\"><span style=\"font-size: 22.6667px;\">15. After considering the submissions made and on perusal of record, we find no ground to differ with the view taken by the learned Single Judge on this issue.</span><span style=\"font-size: 22.6667px;\"><br></span><span style=\"font-size: 22.6667px;\">For the reasons assigned by us supra, we concur with the view taken by the learned Single Judge. In the result, we do not find any merit in this appeal. The same fails and is hereby dismissed.</span><span style=\"font-size: 22.6667px;\"><br></span><span style=\"font-size: 22.6667px;\">Sd/- JUDGE</span><span style=\"font-size: 22.6667px;\"><br></span><span style=\"font-size: 22.6667px;\"><br></span></h4></div>', '21853ccf1e7f0ba556bd8f311b804338.png', '2a5c350f787ff263993c377b55b138c6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-12', 1, '', '', '2021-04-23 01:23:19', '2021-04-23 01:25:41');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(708, 'JKUFDOYzXmXoFv3CAkiQF5fjI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act, 1996. Award of interest. Blank portion left by the contractor in appendix to bid cannot be construed as zero or nil interest claim when the contract provides for payment of interest. Supreme Court. 22 April 2021', '<h4>M/s. Oriental Structural Engineers Pvt. Ltd. vs State of Kerala. </h4><h4>Civil Appeal 3454 of 2011 decided on 22 April 2021 </h4><h4>Justice Surya Kant and Justice Aniruddha Bose.</h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2010/3725/3725_2010_39_1501_27758_Judgement_22-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2010/3725/3725_2010_39_1501_27758_Judgement_22-Apr-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 1 The  appellants were awarded a contract by the  State  of Kerala for upgradation of a State Highway for two stretches, from Muvattupuzha­Thodupuzha   and   Muvattupuzha–Angamaly.  .....however, the only point of dispute on which arguments have been advanced before us is over entitlement of the appellants to receive interest on delayed payment on the subject­ heads, which were to be paid by the employer in local currency as per the stipulations in the said agreement. <br>2. The Tribunal passed the award in favour of the appellants on this point and interest was directed to be paid on delayed payment in relation to local currency component payable under the agreement.<br>5. In their bid document, the appellants had left the space for recording the rate of interest for payment to be made in local currency  blank. It was on this basis the State’s stand has been   that   the   rate   of   interest   on   delayed   payment   (as contemplated in Clause 60.8) in local currency had to be treated as “zero” or “nil”.   In the award, the Tribunal had repelled the argument of the State that the words “zero” or “nil” could be read into the said column of the “appendix to bid”. Relying on the Constitution Bench judgment of this   Court   in   the   case   of  Secretary,   Irrigation   Department, Government of Orissa & Ors. vs. G.C. Roy [(1992) 1 SCC 508], the Tribunal held that a person deprived of the use of money to which he is legitimately entitled has a right to be compensated and such compensation may be called interest, compensation or damages. <br>10. This appeal, in substance, is an extension of a proceeding under Section 34 of the 1996 Act. To go into the question of legality of the decisions made by the two judicial fora, we need to test first if the grounds of challenge to the award met the test laid down by this Court in the case of Oil Natural Gas Corporation Ltd. vs. Saw Pipes Ltd.  [(2003) 5 SCC 705].  Contention of the respondents has been that the Arbitral Tribunal’s order stood vitiated under the “patent illegality” principle spelt out in that judgment. This principle came under the broad heading of “Public Policy” test, applying which an arbitral award could be set aside. What would constitute patent illegality has been elaborated by this Court in a later judgment,  Associate Builders vs. Delhi Development Authority [(2015) 3 SCC 49]. An award would be invalidated,  as  per  this authority,  if  the same was in contravention of substantive law of the country or contravention of the “Arbitration Act itself”.<br>14. The  Appeal  Court  accepted reasoning  of the Arbitration Court that the blank portion in the appendix to the bid would imply “zero” or “nil”. This reasoning, in our opinion, is flawed and such an interpretation of the agreement would actually be contrary to and beyond the terms of the contract. The Tribunal rejected the plea of waiver and we have reproduced its reasoning on that point.  We cannot hold such reasoning to be perverse or improbable in the factual background of the present case.  The Tribunal in this case could have had awarded interest as a compensatory or equitable measure, as there was no clause providing for exclusion or ouster of interest payment on delayed payment<br>15. The  Appellate   Court’s   rationale   that   such   blank   interest column might have had resulted in acceptance of the bid of the appellants as their bid could have been more competitive on the assumption that the other bidders might have had pressed for interest in that column is not acceptable to us.<br>16. We do not find any flaw in the reasoning of the Arbitral Tribunal that the contract did not prohibit the award of interest<br>in   respect   of   delayed   payment in local currency component specified therein. This being the position, in our opinion, the contrary view expressed by the Arbitration Court in a proceeding under Section 34  of  the   Act,   which   view   was   upheld   by  the Appellate  forum,   breaches the   permissible   boundaries   for encroaching upon an award<br>17. In our opinion, the view  taken  by  the  Tribunal on consideration of the contract was both reasonable and possible view. The award of the Tribunal shall stand sustained so far as direction to pay interest on delayed payment of the local currency component of the agreement is concerned, but the rate of   interest  on the  sum  shall be computed in the manner prescribed in paragraphs 1.6, 1.7 and 1.8 and shall be at 8% simple interest per annum. <br>18. The appeal is allowed in the above terms.<br>19. There shall be no order as to costs. <br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br></h4><p><br></p>', 'a78d91c50ad5cf257e6df85f64738547.PNG', 'a96b0c2a00152741c1bf9e87446495ea.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-22', 1, '', '', '2021-04-23 02:25:14', '2021-04-23 02:28:59'),
(709, 'XOvSaaVfz3Vmh7pwoWIRK1KPh', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Right to Information Act, 2005. Penalty imposed under Section 20 cannot be at the discretion of the first or second appellate authority. Imposition of penalty as provided under the Section is mandatory. Karnataka High Court. 18 March 2021', '<h4>M. Kishore Rao vs The Karnataka Information Commission. Writ Petition 24332 of 2019 decided on 18 March 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380690/1/WP24332-19-18-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380690/1/WP24332-19-18-03-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 2.The petitioner, an applicant under the Right to Information Act, 2005 (hereinafter referred to as ‘the RTI Act’ for short), had sought for certain information on 16.12.2016, information not being furnished, the first appeal came to be filed under Section 19(1) of the RTI Act. Despite that no information has been obtained, a second appeal was filed in KIC 5523 APL 2017 under Section 19(3) of the RTI Act, which came to be disposed of on 08.05.2018, directing respondent No.4 to furnish the information as sought. Despite the said order, the information was not furnished. As such, by an order dated 10.09.2018, a penalty of Rs.5,000/- came to be imposed on respondent No.4, which was remitted on 13.11.2018. Recording the said remittance and compliance of the order dated 10.09.2018, the proceedings were closed by way of an order dated 27.09.2019. The petitioner is before this Court and contends that the imposition of penalty of Rs.5,000/- is not in accordance with Section 20 of the RTI Act, in terms whereof penalty of Rs.250/- per day is required to be imposed subject to a maximum of Rs.25,000/-. Thus, Sri. Santhosh B.M., learned counsel for the petitioner, would submit that imposition of penalty of Rs.5,000/- being contrary to the provision of Section 20 of the RTI Act is required to be modified in accordance with Section 20 of the RTI Act so also the compliance recorded vide order dated 27.02.2019 is required to be quashed.<br>6. Sri. Santhosh B.M. learned counsel for the petitioner relying upon the decision of the Hon’ble Himachal Pradesh High Court in the case of <b><i>Sanjay Hindwan V. State reported in AIR 2013 Himachal Pradesh 30 </i></b>would submit that penalty should be imposed under Section 20 of the RTI Act and cannot be at the discretion of either the First Appellate Authority or the Second Appellate Authority. The same has to be strictly  in accordance with the requirement of Section 20 of the RTI Act, whereunder it is required that a penalty of Rs.250/- per day is to be imposed subject to maximum of Rs.25,000/-. The said Section 20 of the Act is reproduced hereunder for easy reference:<br>8. Respondent No.4 cannot have any defence to such belated transfer, admittedly, the application has been filed on 16.12.2016, and the transfer occurred only on 08.05.2018, i.e. after a gap of nearly 17 months.<br>9. The purpose and intent of the RTI Act is not only to provide the information sought for but also to provide it within a timebound manner would be defeated in the event of there being any delay.<br>10. Undue delay, as in the present case where the application, which had to be transferred within a period of five days, has been transferred after 17 months, is inexcusable.<br>11. Furthermore, there is no explanation offered by respondent No.4 either before the Appellate Authority or before this Court for the said delay. In the absence of such explanation being tendered, I am of the considered opinion that the delay is admitted, and the same cannot be condoned. As such, in terms of Section 20 of the RTI Act, a penalty of Rs.250/- per day is required to be imposed on respondent No.4 for such delay. The said amount calculated for the said delay would amount to more than Rs.1,29,000/-, however, the RTI Act imposes an upper limit of Rs.25,000/-. Respondent No.4, therefore, is directed to make payment of penalty of Rs.25,000/-.<br>12. In view thereof, the order dated 10.09.2018 passed in KIC 5523 APL 2017 is modified, the penalty of Rs.5000/- is enhanced to Rs.25,000/- under  Section 20 of the RTI Act. The acceptance of the compliance vide order dated 27.02.2019 is set aside. Respondent No.4 shall make payment of balance amount of Rs.20,000/- from and out of his own earnings within a period of eight weeks from the date of receipt of the certified copy of this order.    Learned Additional Government Advocate is directed to keep informed the concerned Tahasildar about this order.<br>13. The petition stands allowed accordingly.<br><br></h4>', 'e406182ca6ed006922899cdeb5504694.jpg', 'cd3479cd3e9e5c23b16fc677dcd37b42.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-18', 1, '', '', '2021-04-23 23:52:13', '2021-04-23 23:59:35'),
(710, 'f6Nx5lw1qIxLAedTjeNJh6qlU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constitution of India. Article 226. In a writ petition challenging the interim order passed by a Labour Court or Industrial Tribunal, refusal to interfere is a rule and interference is an exception. Karnataka High Court. 19 March 2021', '<h4>State Bank Staff Union vs State Bank of India&nbsp;&nbsp;<br>Writ Appeal 1047 of 2014 decided on 19 March 2021.<br>Justice Alok Aradhe and Justice Ashok S. Kinagi<br>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/376396/1/WA1047-14-19-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/376396/1/WA1047-14-19-03-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: In this intra court appeal under Section 4 of the Karnataka High Court Act, 1961 the appellant has assailed the validity of the order dated 04.03.2014 passed by the learned Single Judge by which writ petition preferred by respondent No.1 has been allowed and the order dated 31.07.2012 passed by the Deputy Chief Labour Commissioner by which he had held the proceeding initiated by the appellant under Rule 25(2)(v)(b) of the Contract Labour (Regulation and Abolition) Central Rules, 1971 (hereinafter referred to as \'the Rules\' for short) to be maintainable.<br>9. We have considered the submissions made by learned counsel for the parties and have perused the record. The Supreme Court in&nbsp; D.P.Maheshwari vs Delhi Administration and others. 1983 (4) SCC 293, held as follows:</h4><h4 style=\"margin-left: 25px;\">\"There was a time when it was thought prudent and wise policy to&nbsp; decide preliminary issues first. But the time&nbsp; appears to have arrived for a reversal of that policy. We think it is better that tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Court in the exercise of their jurisdiction under Article 226 of the Constitution stop proceedings before a Tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Article 226 of the Constitution nor the jurisdiction of this Court under Article 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by by dragging the latter from court to court for adjudication of peripheral issues, avoiding decision more vital to them. Article 226 and Article 136 are not meant to be used to break the resistance of workmen in this fashion. Tribunals and courts who are requested to decide preliminary questions must therefore as themselves whether such threshold part-adjudication is really necessary and whether it will nto lead to other woeful consequences. After all Tribunals like industrial Tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminary objections and journeyings up and down. It is also&nbsp; worthwhile remembering that the nature of the jurisdiction under Article 226 is supervisory and not appellate while that under Article 136 is preliminary supervisory but the court may exercise all necessary appellate powers to do substantial justice. In the exercise of such jurisdiction neither High Court nor this court is required to be too astute to interfere with the exercise of jurisdiction by special Tribunals at interlocutory stages and on preliminary issues.\"</h4><h4>10. In Anup Engineering Ltd vs Shreenarayan Kanaiyalal (1996) 2 LLJ 751 it was held that in a proceeding under Article 226 arising out of an interim order passed by the Labour Court, the High Court should not decide the main issue as the aforesaid issue has to be adjudicated in the proceedings before the Labour Court. In \'Nelton India and others vs Bipin V Patel (2006) 9 SCC 192, it was held that High Court in exercise of powers under Article 226 of the Constitution of India should not ordinarily interfere with the interim order of the Labour Court unless it is of the opinion that the order of the Labour Court is so perverse that it cannot be reasonably supported. In&nbsp; \'Dena Bank vs D.V. Kundadia (2011) 15 SCC 690, it was held that as follows:</h4><h4 style=\"margin-left: 25px;\">\"It is well settled by this Court that no writ should be entertained against an interim order of the Labour Court or the Industrial Tribunal. It is only when a final award is given, then a party should be allowed to challenge it if he is aggrieved.\"<br></h4><h4>11. Thus, from perusal of aforesaid well settled legal principles, it is evident that in a writ petition challenging the interim order passed by a Labour Court / Insdustiral Tribunal, refusal to interfere is a Rule and interference with the order of Labour Court / Tribunal is an exception.<br>&nbsp;<br>In the result, the appeal is allowed.<br><br></h4>', 'b0e9c5d4f050dae41ae8490749f2591c.PNG', '4de845518a2e5bb17ccde2905258d7f2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-19', 1, '', '', '2021-04-24 00:30:26', '2021-04-24 00:30:26'),
(711, '2gwOgiKDit2Cfb3udqspteTRX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Grant of bail.  While considering the bail petition, the Courts must examine the potential threat to the life and liberty of victims/witnesses, if such accused is released on bail. Supreme Court. 23 April 2021', '<h4>Sudha Singh vs The State of Uttar Pradesh and another. </h4><h4>Criminal Appeal 228 of 2021 decided on 23 April 2021. </h4><h4>Chief Justice S.A. Bobde, Justice A.S. Bopanna and Justice V. Ramasubramanian. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/14356/14356_2020_31_1501_27767_Judgement_23-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/14356/14356_2020_31_1501_27767_Judgement_23-Apr-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 2. This is a criminal appeal filed against the order of the Allahabad High Court granting bail to the accused who has been arrested with respect to the offence punishable under Section 3 (1) of the U.P. Gangster and Anti-Social Activities<br>(Prevention) Act, 1986.<br>3. The appellant is the wife of a deceased victim namely Rajnarain Singh who has been allegedly murdered by the accused, who is Respondent No. 2 herein, in conspiracy with others. A First Information Report bearing Case Crime Number 200 of 2015, P.S.-Sodhari, Distt.- Azamgarh, was registered in that regard and a charge sheet for offences under Sections 120-B and 302 of the Indian Penal Code, 1860 and Sections 3 and 25 of the Arms Act, 1959 was filed against the accused. The accused is alleged to be a<br>contract killer and a sharpshooter. In fact, previously, the accused has been prosecuted in fifteen cases for serious<br>offences including murder, attempt to murder and criminal conspiracy.<br>5. By the order impugned in this criminal appeal, the Allahabad High Court granted bail to the accused herein on very liberal terms, such as the execution of a personal bond to the satisfaction of the jail Authorities and the furnishing of sureties within a month of his release. The High court has simply ignored the antecedents of the accused and the potential to repeat his acts by organising his criminal activities. <br>8. We find in this case that the high court has overlooked several aspects, such as the potential threat to witnesses, forcing the trial court to grant protection. It is needless to point out that in cases of this nature, it is important that courts do not enlarge an accused on bail with a blinkered vision by just taking into account only the parties before them and the incident in question. It is necessary for courts to consider the impact that release of such persons on bail will have on the witnesses yet to be examined and the innocent members of the family of the victim who might be the next victims. <b><i><br>Neeru Yadav vs. State of U.P. (2014) 16 SCC 508, Ash Mohammad vs. Shiv Raj Singh (2012) 9 SCC 446, Prasanta Kumar Sarkar vs. Ashis Chatterjee and Another (2010) 14 SCC 496 referred to. </i></b><br>The factors laid down in the judgment were:<br>(i) Whether there was a prima facie or reasonable ground to believe that the accused had committed the offence;<br>(ii) nature and gravity of accusations;<br>(iii) severity of the punishment in the event of a conviction;<br>(iv) danger of the accused absconding or fleeing, if granted bail;<br>(v) character, behaviour, means, position and standing of the accused;<br>(vi) likelihood of repetition of the offence;<br>(vii) reasonable apprehension of the witnesses being influenced; and<br>(viii) danger of justice being thwarted by grant of bail. <br>12. There is no doubt that liberty is important, even that of a person charged with crime but it is important for the courts to recognise the potential threat to the life and liberty of victims/witnesses, if such accused is released on bail.<br>13. We, therefore, allow the appeal and set aside the order of the Allahabad High Court granting bail to the accused. <br><br></h4>', '0c48df657c0aaa01d8ef8f9852d2d977.PNG', '9c7f728c8bb744bf50184c78a04725c7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-23', 1, '', '', '2021-04-26 08:09:39', '2021-04-26 08:10:45'),
(2701, 'jqaTB7mcDqYorE2zKq3IhQ7uV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' ‘’Pension is trite, not a bounty’’. In genuine cases where pensioners are unable to visit up to the Bank, it is the duty of the Bank officers to visit those persons and take Life Certificate and update them on the system. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>H. Nagabhushana Rao Vs The Under Secretary FFR Division -WZ Section Ministry of Home Affairs and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 405 of 2023 decided on 17 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner, a centenarian, now 102 years, is knocking at\r\nthe doors of this Court seeking a direction by issuance of a writ in\r\nthe nature of mandamus directing the 1st respondent to pay the\r\npetitioner `3,71,280/- along with interest being the arrears of\r\npetitioner’s Central Gaurava Dhana to be jointly and severally paid\r\nby the respondents within a time frame.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Facts adumbrated are as follows:-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n The petitioner, who is now 102 years old, was a recipient of\r\nSwatantra Sainik Samman Gaurava Dhana (Pension) (‘Pension’ for\r\nshort) being a freedom fighter from 1974 from Government of\r\nIndia. This honorary pension was granted to the petitioner by both\r\nthe Central and the State Governments respectively. The petitioner\r\nmaintains an account at the 4th respondent/Canara Bank to which\r\naccount monthly pension of the petitioner gets credited.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. On 01-11-2017 the pension of the petitioner was abruptly\r\nstopped. When enquired about the reason for such stoppage, it\r\nwas indicated to the petitioner that he had not submitted his Life\r\nCertificate for the year 2017-2018 and later he submitted the Life\r\nCertificate on 24-12-2018. The Government issued sanction letter\r\nbelatedly releasing pension for the period from 24-12-2018 to 05-\r\n10-2020. However, the arrears of pension between 01-11-2017 to\r\n24-12-2018 were not paid, which amounted to `3,71,280/-. When\r\nthe amount was not received, the petitioner knocked at the doors of\r\nthis Court in Writ Petition No.7813 of 2020 seeking a writ of\r\nmandamus to the respondents for release of arrears of pension and\r\nthis Court by its order dated 24-06-2020 directed the respondents\r\nto take appropriate action within two weeks. When nothing came\r\nabout, the petitioner moved this Court in C.C.C.No.449 of 2020,\r\npursuant to which, the 1st respondent issued a sanction letter dated\r\n05-10-2020. However, pension for the period from 01-11-2017 to\r\n24-12-2018 was not released on the specious plea that the\r\npetitioner had not submitted Life Certificate. Again the petitioner\r\nknocked at the doors of this court in Writ Petition No.22468 of 2021\r\nfor release of pension for the aforesaid period. This Court in terms </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of its order dated 10-06-2022 considering the purport of guidelines\r\nfor grant of such pension allowed the petition in part and directed\r\nthe 4th respondent therein, Government of India to take appropriate\r\ndecision in terms of the Scheme for disbursement of pension after\r\nassessing entitlement of the petitioner. Pursuant to the order\r\npassed by this Court and claiming to be considering the grievance\r\nof the petitioner, a communication comes to be issued on 13-09-\r\n2022 directing that the petitioner is not entitled to the arrears for\r\nthe solitary reason that the petitioner did not submit a Life\r\nCertificate in November, 2017. It is this communication dated 13-\r\n09-2022 that leads the petitioner to this court in the subject\r\npetition.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. The afore-narrated facts are not in dispute. The only\r\nreason rendered in the communication which denies the petitioner\r\npension is taking recourse to clause 2.3 of the policy Guidelines\r\nwith regard to payment of pension under the Central Samman\r\nPension Scheme. The Union of India through the Ministry of Home\r\nAffairs has notified certain guidelines for disbursement of Central\r\nSamman Pensions to be followed and disbursed by the authorized\r\nPublic Sector Banks. It is not in dispute that the petitioner is held\r\nentitled for pension under the Scheme and the 4th respondent/Bank <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is the authorized Public Sector Bank for such disbursement in terms\r\nof the Scheme.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Clause 2 of the said guidelines deals with Life Certificate and Banks’\r\nresponsibility. It is these guidelines that form the fulcrum of the\r\nentire issue in the lis. Clause 2.1 directs that the Bank shall obtain\r\nLife Certificate once a year in the month of November from the\r\nconcerned freedom fighter or the dependent as the case may be.\r\nFor the purpose of obtaining Life Certificate the pensioner must\r\ncome face to face with the banker. Whenever it is found that the\r\npensioner is too old to come to the Bank, then the Bank officer\r\nmust visit his or her place of residence before obtaining the Life\r\nCertificate. In case the pensioner is above 80 years, the Life\r\nCertificate should be taken by the Bank twice a year – once in May\r\nand once in November</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. It is not in dispute that the petitioner is entitled for the\r\nsaid pension. The only issue is, whether non-submission of Life\r\nCertificate for a brief period of one year could take away the right of\r\nthe petitioner to get pension in the peculiar facts. Though\r\nsubmission of Life Certificate is imperative in terms of the\r\nguidelines and duty is cast on every pensioner to submit a Life\r\nCertificate, certain duty is also cast upon the Bank officials as well.\r\nThe duty that is cast upon the Bank officials is that they should visit\r\na person whose Life Certificate has not come about immediately to\r\nupdate their data with regard to restoration of pension or\r\notherwise. The duty of the Bank is given a go bye. Vehement\r\nobjections are put up by the learned counsel appearing for the Bank\r\nin order to save the officers who have derelicted in their duty in not\r\nadhering to the guidelines. Union of India has filed its statement of\r\nobjections placing the blame on the Bank in terms of the guidelines <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for having derelicted in such duty</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Union of India indicates that it was assumed that pension of the\r\npetitioner had to be stopped because of failure of the Bank. But, it\r\ncannot be assumed that his pension was deemed cancelled only\r\nbecause of failure of the Bank as there is a gap of one year between\r\nwithholding and cancellation of pension. The decision of Union of\r\nIndia cannot be found fault with, is the objection. The purport of\r\nthe objection is that it was the duty of the Bank under the\r\nguidelines to have secured a Life Certificate. No doubt, the\r\nguidelines indicate that pension would be stopped immediately on\r\nnon-submission of Life Certificate by any person under this\r\nparticular scheme. It does not stop at that. Duty then begins on the\r\npart of the Bank.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. The officers have displayed apathy to the cause of the\r\npetitioner in the peculiar circumstances of the case by not taking\r\nthe Life Certificate as by then the petitioner was 97 years old and\r\nwas recipient of pension for a long time under the Scheme. Above\r\nall, all these submissions have been made and negatived by the coordinate Bench in the order quoted supra. Therefore, the petitioner\r\nwould be entitled to all the arrears along with interest, as the Bank\r\nhas failed to collect Life Certificate from the hands of the petitioner\r\nin terms of the guidelines. The Bank ought to have visited the\r\npetitioner and collected the Life Certificate and regulated pension.\r\nA caveat, not in every case the Bank is obliged to do so. In cases\r\nwhere there are genuine problems of pensioners who are unable to\r\nvisit up to the Bank, it is the duty of the Bank officers to visit those\r\npersons and take Life Certificate and update them on the system.\r\nThe pensioners could be septuagenarians, octogenarians,\r\nnonagenarians or centenarians like the petitioner. Therefore, this\r\norder cannot be construed to be sweeping direction in all cases\r\nwhere the Life Certificate has to be secured by the Bank officers,\r\nbut in genuine cases, the Bank officers ought to perform their duty <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in terms of the guidelines so as to avoid unnecessary litigation of\r\nthe kind that has been generated not once, twice, but three times.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. Pension, is trite, not a bounty. In a broader\r\nsignificance, it is a measure of socio-economic justice, which\r\ninheres economic security, in the fall of life when physical and\r\nmental capabilities of a pensioner begins to ebb corresponding the\r\naging process. The raison d’etre for grant of pension is the\r\ninability to provide for oneself due to such old age. This can be\r\nwithheld, curtailed or taken away, only in accordance with law.\r\nEbbing mental prowess and physical incapacity due to age was one\r\nof the prime reasons why the certificate could not be submitted in\r\ntime. This, in the peculiar facts of this case, by no stretch of\r\nimagination, can be construed to take away the right of the\r\npetitioner for grant of pension, particularly, in the teeth of the\r\nguidelines. Therefore, the Union of India and the Bank ought to\r\nhave paid arrears of pension to the petitioner and not driven the\r\npetitioner to yet another round of litigation, third in line, at the age\r\nof 102 years. In view of the preceding analysis, the petitioner is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">held entitled to arrears of pension from 01-11-2017 to 24-12-2018,\r\ncoupled with interest and cost of litigation.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The Writ Petition is allowed with costs of `1,00,000/-\r\nto be paid jointly and severally paid by respondents 1\r\nand 4. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'bc1a385669ff48b5d66aa959f77c57ff.jpeg', '0f2835c70a4b8b061a57aefba24336e5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-21', 1, '', '', '2023-02-20 14:05:19', '2023-02-21 11:02:09'),
(713, 'Tq0mYLMQYf9K1OXWLNw72qoTJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contract Act. Section 62. To constitute rescission of contract, the alteration must go to very root of original contract and change its essential character, so that modified contract must be read as doing away with the original. Supreme Court. 14:9:2017', '<h4>Chrisomar Corpn. v. MJR Steels (P) Ltd., </h4><h4>Civil Appeal 1930 of 2008 decided on 14 September 2017. Reported in (2018) 16 SCC 117 </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2006/29967/29967_2006_Judgement_14-Sep-2017.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2006/29967/29967_2006_Judgement_14-Sep-2017.pdf</a></h4><h4>Justice R.F. Nariman and Justice Sanjay Kishan Kaul</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 38. In<span style=\"font-size: 1.3125rem;\"> </span><span style=\"font-size: 1.3125rem; font-weight: bolder;\"><i>Juggilal Kamlapat v. N.V. Internationale Crediet-En-Handels Vereeninging ‘Rotterdam’ [Juggilal Kamlapat v. N.V. Internationale Crediet-En-Handels Vereeninging ‘Rotterdam’, 1952 SCC OnLine Cal 250 : AIR 1955 Cal 65] </i></span><span style=\"font-size: 1.3125rem;\">, the original contract dated 10-8-1950 contained an arbitration clause. In para 11 of the judgment, it was found as a fact that the original contract was modified in certain material particulars. Despite this, it was found that since the modifications do not go to the root of the original contract and do not change its essential character, the facts do not warrant the inference that the parties intended to rescind the original contract. The High Court held: (SCC OnLine Cal paras 14-15)</span></h4><h4 style=\"margin-left: 25px;\">“14. In the present case the modifications do not go to the very root of the first contract and do not change its essential character. The facts do not warrant the inference that the parties intended to rescind the contract, dated 10-8-1950. The April arrangement was entered into in response to pressing demands for delivery under that contract and with a view to implement it. The arrangement has no independent contractual force, no meaning and content separately from and independently of the original contract.<br>15. The effect of the alterations or modifications is that there is a new arrangement; in the language of Viscount Haldane in Morris v. Baron and Co. [Morris v. Baron and Co., 1918 AC 1 (HL)] : (AC p. 17)<br>‘a new contract containing as an entirety the old terms together with and as modified by the new terms incorporated.’<br>The modifications are read into and become part and parcel of the original contract. The original terms also continue to be part of the contract and are not rescinded and/or superseded except insofar as they are inconsistent with the modifications. Those of the original terms which cannot make sense when read with the alterations must be rejected. In my view the arbitration clause in this case is in no way inconsistent with the subsequent modifications and continues to subsist.”</h4><h4>39. We approve of the said judgment as laying down the correct law on the expression “alter” in Section 62 of the Contract Act. In order that a contract that is altered in material particulars fall under Section 62, it must be clear that the alteration must go to the very root of the original contract and change its essential character, so that the modified contract must be read as doing away with the original contract. If the modified contract has no independent contractual force, in that it has no meaning and content separately from and independently of the original contract, it is clear that there is no new contract which comes into being. The original terms continue to be part of the modified contract except to the extent that they are inconsistent with the modifications made.</h4><h4>37. It is clear that where parties to a contract agree to substitute a completely different contract for the first, or to rescind a contract, the performance under the original contract and/or rescinded contract comes to an end. When parties to a contract “alter” a contract, the question that has to be answered is as to whether the original contract is altered in such a manner that performance under it is at an end.<br></h4><h4>50. Even if the passage in Halsbury\'s is to be applied, it is obvious that the settlement terms spoken of must be made for good consideration, which is absent under Section 63. Also, for such settlement to constitute a new and independent agreement, it must put an end to the proceeding which is thereby spent and exhausted; and it is for this reason that the original cause of action is superseded altogether. We have seen on the facts of the present case how, by the order dated 25-1-2000, the application in Suit No. 1 of 2000 alone was dismissed for non-prosecution, only interim orders were vacated and it was stated that “the vessel shall cease to be under arrest as of now.” It is clear, therefore, that in accordance with the agreement dated 18-1-2000, the proceedings were not put an end to. Neither was the original cause of action superseded, as we have stated earlier. The moment there is a breach of the settlement agreement, the appellants would be entitled to take appropriate legal steps against the shipowner, including the arrest of the vessel, which can only be if the original contract still subsists.</h4><p><br></p>', '1d2f0a5dfdc4ae3e1f62b4be7bb2f74f.png', '0eff6d8c0f44544cdcd8beda7b4acad5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2017-09-14', 1, '', '', '2021-04-28 02:25:30', '2021-04-28 02:31:00'),
(714, 'Q2VOt5A4oOuxMzsm24lxYJIwF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sexual violence against women and girls with disabilities. Supreme Court lays down guidelines to make the criminal justice system more disabled-friendly. 27 April 2021', '<h4>Patan Jamal Vali vs he State of Andhra Pradesh. </h4><h4>Criminal Appeal 452 of 2021 decided on 27 April 2021.  </h4><h4>Justice Dr Dhananjaya Y Chandrachud and Justice M R Shah. <br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/5024/5024_2020_35_1501_27785_Judgement_27-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/5024/5024_2020_35_1501_27785_Judgement_27-Apr-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 2 This appeal arises from a judgment of a Division Bench of the High Court of Andhra Pradesh dated 3 August 2019. The High Court has affirmed the conviction of the appellant for offences punishable under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 19891 and Section 376(1) of the Indian Penal Code. <br>11 Notice has been issued by this Court confined to the above submission. However, before we proceed to analyse the submission, we are unequivocally of the view that the offence under Section 376(1) has been proved beyond reasonable doubt.<br>12 The experience of rape induces trauma and horror for any woman regardless of her social position in the society. But the experiences of assault are different in the case of a woman who belongs to a Scheduled Caste community and has a disability because the assault is a result of the interlocking of different relationships of power at play. When the identity of a woman intersects with, inter alia, her caste, class, religion, disability and sexual orientation, she may face violence and discrimination due to two or more grounds. Transwomen may face violence on account of their heterodox gender identity. In such a situation, it becomes imperative to use an intersectional lens to evaluate how multiple sources of oppression operate cumulatively to produce a specific experience of subordination for a blind Scheduled Caste woman.<br>13 A movement for recognition of discrimination and violence emanating from the effects of the interaction of multiple grounds was pioneered by African American women in United States. Kimberly Crenshaw has been credited for coining the term intersectionality. <br>15 It is important to note that an analysis of intersectionality does not mean that we see caste, religion, class, disability and sexual orientation as merely “add ons” to the oppression that women may face. This is based on the assumption that gender oppression is oppressive in the same way for all women, only more so for women suffering marginalization on other grounds. However, an intersectional analysis requires us to consider the distinct experience of a sub-set of women who exist at an intersection of varied identities. This is not to say that these women do not share any commonalities with other women who may be more privileged, but to equate the two experiences would be to play down the effects of specific socio-economic vulnerabilities certain women suffer. At its worse it would be to appropriate their pain to claim a universal subjectivity<br>17 Intersectionality merely urges us to have “an open-textured legal approach that would examine underlying structures of inequality”. This requires us to analyse law in its social and economic context allowing us to formulate questions of equality as that of “power and powerlessness” instead of difference and sameness.15 The latter being a conceptual limitation of single axis analysis, it may allow certain intersectional claims to fall through the cracks since such claims are not unidirectional in nature.<br>19 Single axis models of oppression are a consequence of how historically movements aiming for legal protection of marginalized populations developed. Most political liberation struggles have been focused on a sole characteristic like anti-caste movements, movements by persons with disabilities, feminism and queer liberation. Many such movements have not been able to adequately address the intra-group diversity leading to a situation where the needs of the relatively privileged within the group have received more than a fair share of spotlight. When these liberation struggles were adopted in law, the law also developed into mutually exclusive terrains of different statutes addressing different marginalities failing to take into account the intersectional nature of<br>oppression.<br>26 For many disabled women and girls in India, the threat of violence is an alltoo-familiar fixture of their lives, contracting their constitutionally guaranteed freedom to move freely and curtailing their ability to lead full and active lives. This threat of violence can translate into a nagging feeling of powerlessness and lack of control, making the realization of the promises held by Parts III and IV of our Constitution a remote possibility for women with disabilities.<br>32 In India, no disaggregated data is maintained on the extent of violence against women and girls with disabilities. This poses a formidable obstacle to understanding the problem better and designing suitable solutions. <br>39 While changes in the law on the books mark a significant step forward, much work still needs to be done in order to ensure that their fruits are realized by those for whose benefit they were brought. In this regard, we set out below some guidelines to make our criminal justice system more disabled-friendly.</h4><h4 style=\"margin-left: 25px;\">(i) The National Judicial Academy and state judicial academies are requested to sensitize trial and appellate judges to deal with cases involving survivors of sexual abuse. This training should acquaint judges with the special provisions, concerning such survivors, such as those outlined above. It should also cover guidance on the legal weight to be attached to the testimony of such witnesses/survivors, consistent with our holding above. Public prosecutors and standing counsel should also undergo similar training in this regard. The Bar Council of India can consider introducing courses in the LL.B program that cover these topics and the intersectional nature of violence more generally;<br>(ii) Trained special educators and interpreters must be appointed to ensure the effective realization of the reasonable accommodations embodied in the Criminal Law Amendment Act, 2013. All police stations should maintain a database of such educators, interpreters and legal aid providers, in order to facilitate easy access and coordination;<br>(iii) The National Crimes Record Bureau should seriously consider the possibility of maintaining disaggregated data on gender-based violence. Disability must be one of the variables on the basis of which such data must be maintained so that the scale of the problem can be mapped out and tailored remedial action can be taken;<br>(iv) Police officers should be provided sensitization, on a regular basis, to deal with cases of sexual violence against women with disabilities, in an appropriate way. The training should cover the full life cycle of a case involving a disabled survivor, from enabling them to register complaints, obtain necessary accommodations, medical attention and suitable legal representation. This training should emphasize the importance of interacting directly with the disabled person concerned, as opposed to their care-taker or helper, in recognition of their agency; and<br>(v) Awareness-raising campaigns must be conducted, in accessible formats, to inform women and girls with disabilities, about their rights when they are at the receiving end of any form of sexual abuse.<br></h4>', '0cb349cc4ca6520c115c580f70f4886b.PNG', '759ddc711ad862a1fb5b7ba8cfbf3e99.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-27', 1, '', '', '2021-04-28 04:16:01', '2021-04-28 04:17:27');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(715, 'kmeaGF0ZzHwoejsxdqFJbJ4Du', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal trial. Testimony of prosecutrix with a disability or disabled witness can\'t considered weak or inferior, only because she interacts with the world differently. Testimony inspiring judicial confidence is entitled to full weight. 27 April 2021', '<h4>Patan Jamal Vali vs he State of Andhra Pradesh.<br></h4><h4>Criminal Appeal 452 of 2021 decided on 27 April 2021.&nbsp;&nbsp;</h4><h4>Justice Dr Dhananjaya Y Chandrachud and Justice M R Shah.&nbsp;</h4><h4>Judgment Link:<a href=\"https://main.sci.gov.in/supremecourt/2020/5024/5024_2020_35_1501_27785_Judgement_27-Apr-2021.pdf\" target=\"_blank\"> https://main.sci.gov.in/supremecourt/2020/5024/5024_2020_35_1501_27785_Judgement_27-Apr-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 42 In the High Court, the defense sought to cast doubt on the testimony of the prosecutrix by arguing that she would have been unable to identify the accused due to her disability. While the above plea was not pressed by the appellant in this Court, we would like to take this opportunity to affirm the conclusion of the Sessions Judge and to clarify the position of law on this point.&nbsp;</h4><h4>43 There have been instances where the testimony of a disabled prosecutrix has not been considered seriously and treated at an equal footing as that of their able-bodied counterparts. One such instance is the judgment of this Court in Mange v. State of Haryana (1979) 4 SCC 349.., where the testimony of a thirteen year-old girl who was deaf and mute was not recorded and the conviction was confirmed on the account of an eye witness and supported by medical evidence. This Court in affirming the conviction noted that the non-examination of the prosecutrix was not a major infirmity in the prosecution’s case “apart from being a child witness, she was also deaf and dumb and no useful purpose would have been served by examining her.” We are of the considered view that presumptions of such nature which construe disability as an incapacity to participate in the legal process reflect not only an inadequate understanding of how disability operates but may also result in a miscarriage of justice through a devaluation of crucial testimonies given by persons with disabilities. The legal personhood of persons with disabilities cannot be premised on societal stereotypes of their supposed “inferiority”, which is an affront to their dignity and a negation of the principle of equality.</h4><h4>44 A survey and analysis of High Court judgments by Saptarshi Mandal indicates that the testimony of the disabled witnesses is devalued by not recording the testimony of the prosecutrix at all; or recording it without adherence to correct legal procedure, thereby rendering it ineffectual; dismissal of the testimony for its lack of intelligibility or for not being supported by the condition of her body. Mandal, Disabled Women Testimony in Rape Trials, supra n. 23, p. 6.</h4><h4>45 This kind of a judicial attitude stems from and perpetuates the underlying bias and stereotypes against persons with disabilities. We are of the view that the testimony of a prosecutrix with a disability, or of a disabled witness for that matter, cannot be considered weak or inferior, only because such an individual interacts with the world in a different manner, vis-a-vis their able-bodied counterparts. As long as the testimony of such a witness otherwise meets the criteria for inspiring judicial confidence, it is entitled to full legal weight. It goes without saying that the court appreciating such testimony needs to be attentive to the fact that the witness’ disability can have the consequence of the testimony being rendered in a different form, relative to that of an able-bodied witness. In the case at hand, for instance, PW2’s blindness meant that she had no visual contact with the world. Her primary mode of identifying those around her, therefore, is by the sound of their voice. And so PW2’s testimony is entitled to equal weight as that of a prosecutrix who would have been able to visually identify the appellant.</h4>', '22e0c848200fc6076d6ec902b8590c01.PNG', '60a425df9959d98747a42cf7755f4b5a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-27', 1, '', '', '2021-04-28 05:02:04', '2021-04-28 05:06:44'),
(716, 'mRyBe5eBcMroXCoaWqlAeNHi2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SC/ST Prevention of Atrocities Act, 1989. Section 3 before amendment. Apart from establishing the crime, the prosecution must also establish that crime was committed on the ground that such person is a member of SC/ST. Supreme Court. 27 April 2021', '<h4>Patan Jamal Vali vs he State of Andhra Pradesh.<br>Criminal Appeal 452 of 2021 decided on 27 April 2021.  <br>Justice Dr Dhananjaya Y Chandrachud and Justice M R Shah. <br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/5024/5024_2020_35_1501_27785_Judgement_27-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/5024/5024_2020_35_1501_27785_Judgement_27-Apr-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs: </span>49. Section 3(2)(v) of the SC and ST Act <span style=\"background-color: rgb(255, 255, 0);\"><b>as it stood at the material time</b></span> read as follows:<br></h4><h4 style=\"margin-left: 25px;\">“3. Whoever not being a member of a Scheduled Caste or Scheduled Tribe …<br>(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;” </h4><h4>50. Under Section 3(2)(v), an enhanced punishment of imprisonment for life with fine is provided where;</h4><h4 style=\"margin-left: 25px;\">(i) The offence is committed by a person who is not a member of a Scheduled Caste or Scheduled Tribe;<br>(ii) The offence arises under the Penal Code and is against a person or property and is punishable with imprisonment for a term of ten years or more; and<br>(iii) The offence is committed “on the ground that such person is a member of a Scheduled Caste or Scheduled Tribe” or such property belongs to such a person. The key words are “on the ground that such person is a member of a SC or ST”. </h4><h4>The expression “on the ground” means “for the reason” or “on the basis of”. The above provision (as it stood at the material time prior to its amendment, which will be noticed later) is an example of a statute recognizing only a single axis model of oppression. As we have discussed above, such single axis models require a person to prove a discrete experience of oppression suffered on account of a given social characteristic. However, when oppression operates in an intersectional fashion, it becomes difficult to identify, in a disjunctive fashion,which ground was the basis of oppression because often multiple grounds operate in tandem. </h4><h4>51 Being cognizant of the limitation of Section3(2)(v) – as it stood earlier - in dealing with matters of intersectionality, we are however bound to apply the standard that has been laid down in the law. The expression “on the ground” was considered in a two-judge Bench judgment of this Court in Dinesh Alias Buddha v. State of Rajasthan (2006) 3 SCC 771.<br>52 The Court held that in the absence of evidence to that effect, the offence under Section 3(2)(v) would not stand established. This principle was subsequently followed in a two judge Bench judgment of this Court in Ramdas and Others v. State of Maharashtra  (2007) 2 SCC 170. where it was held that merely because a woman belongs to the SC & ST community, the provisions of the SC & ST Act would not be attracted in a case of sexual assault. This Court observed that there was no evidence to prove the commission of offence under Section 3(2)(v) of the SC & ST Act.<br>53 The contours of the terms “on the ground of” have been explicated by this Court in the following cases. In Ashrafi v. State of Uttar Pradesh (2018) 1 SCC 742, a two judge Bench of this Court held that conviction under Section 3(2)(v) of the SC & ST Act cannot be sustained because the prosecution could not prove that the rape was committed only on the ground that the woman belonged to the SC & ST community.<br>55 .....this Court has interpreted Section 3(2)(v) to mean that the offence should have been committed “only on the ground that the victim was a member of the Scheduled Caste.” The correctness of this exposition. Is debatable. The statutory provision does not utilize the expression “only on the ground”. Reading the expression “only” would be to add a restriction which is not found in the statute. The statute undoubtedly uses the words “on the ground’ but the juxtaposition of “the” before “ground” does not invariably mean that the offence ought to have been committed only on that ground. To read the provision in that manner will dilute a statutory provision which is meant to safeguard the Scheduled Castes and Scheduled Tribes against acts of violence which pose a threat to their dignity. As we have emphasized before in the judgment, an intersectional lens enables us to view oppression as a sum of disadvantage resulting from multiple marginalized identities. To deny the protection of Section 3 (2) (v) on the premise that the crime was not committed against an SC & ST person solely on the ground of their caste identity is to deny how social inequalities function in a cumulative fashion. It is to render the experiences of the most marginalized invisible. It is to grant impunity to perpetrators who on account of their privileged social status feel entitled to commit atrocities against socially and economically vulnerable communities. This is not to say that there is no requirement to establish a causal link between the harm suffered and the ground, but it is to recognize that how a person was treated or impacted was a result of interaction of multiple grounds or identities. A true reading of Section 3(2)(v) would entail that conviction under this provision can be sustained as long as caste identity is one of the grounds for the occurrence of the offence. In the view which we ultimately take, a reference of these decisions to a larger bench in this case is unnecessary. We keep that open and the debate alive for a later date and case. <br>56 If the evidence in this case was sufficient to establish the commission of the offence on the ground that PW2 was a member of a Scheduled Caste, a fresh look at the judgments in Ashrafi (supra) and Khuman Singh (supra) would have been warranted. However, a close look at the evidence would demonstrate that the prosecution has not led evidence to prove the ingredients of section 3(2)(v). Unfortunately, there has been a serious gap in the evidence on that count.<br>58 The issue as to whether the offence was committed against a person on the ground that such person is a member of a SC or ST or such property belongs to such member is to be established by the prosecution on the basis of the evidence at the trial.<br>However, there is no separate evidence led by the prosecution to show that the accused committed the offence on the basis of the caste identity of PW2. While it would be reasonable to presume that the accused knew the caste of PW2 since village communities are tightly knit and the accused was also an acquaintance of PW2’s family, the knowledge by itself cannot be said to be the basis of the commission of offence, having regard to the language of Section 3(2)(v) as it stood at the time when the offence in the present case was committed  As we have discussed above, due to the intersectional nature of oppression PW2 faces, it becomes difficult to establish what led to the commission of offence – whether it was her caste, gender or disability. This highlights the limitation of a provision where causation of a wrongful act arises from a single ground or what we refer to as the single axis model. (i) The conviction of the appellant for an offence under Section 3(2)(v) of the SC and ST Act and the sentence imposed in respect of the offence is setaside and the appeal allowed to that extent; <br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br></h4><p><br></p>', 'd5736215a33dc9aee3bd31ae66e3d8fa.PNG', 'f2afbfe529ebd7690b5db71175a70145.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-27', 1, '', '', '2021-04-28 17:35:07', '2021-04-28 17:35:52'),
(717, 'FwR2LUsOhuK5fRaM9fbW0aiDO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Companies Act, 2013. Section 272. Previous sanction of the Central Government to the Registrar to present winding up petition cannot be challenged without showing civil consequences. Karnataka High Court. 28 April 2021 ', '<h4>Devas Employees Mauritius Pvt Ltd vs Union of India and others. </h4><h4>Writ Petition 6191 of 2021 decided on 28 April 2021. </h4><h4>Judgment Link:&nbsp;<a href=\"https://karnatakajudiciary.kar.nic.in/judgements/WP-6191-2021.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/WP-6191-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:&nbsp;Devas Employees\' Mauritius Pvt. Ltd., a Company incorporated under the laws of Republic of Mauritius has<br>presented this writ petition with prayers to </h4><h4>(i) declare Section 272(1)(e) of Companies Act, 2013 as ultra vires Constitution of India; </h4><h4>(ii) to declare that the second proviso to Section 272(3) of the Act, must be read to be applicable to the petitions presented by persons falling under Section 272(1)(e) of the Act; and to issue a writ of certiorari quashing sanction order dated January 18, 2021 and consequently to quash all proceedings in C.P. No. 06/BB/2021 before NCLT<br></h4><h4>2. Brief facts of the case are, petitioner holds 3.48% shares in Devas Multimedia Pvt. Ltd.,.&nbsp; On January 28, 2005, Antrix Corporation Ltd., and Devas entered into an agreement for lease of space segment capacity on ISRO/Antrix S-Band Space Craft. According to the petitioner, investments were brought into Devas from different shareholders including State owned Deutshe Telekom, an enterprise of the German Government.<br>3. On February 25, 2011, Antrix Corporation terminated the agreement. Devas initiated arbitration proceedings in ICC. On September 14, 2015, ICC Arbitral Tribunal passed an Award for USD 562.5 Million with interest thereon, which according to the petitioner works<br>out to about Rs.10,000 Crores and same is being enforced in several jurisdictions. The Central Government vide notification dated January 18, 2021 has authorised the Chairman &amp; Managing Director of Antrix Corporation to present a petition to wind up Devas. Accordingly, Antrix Corporation has filed a Company Petition before NCLT, Bengaluru. By it\'s order dated January 19, 2021, NCLT has admitted the petition and granted time to the respondents therein to file replies; and appointed the official liquidator attached to this Court as provisional liquidator.<br>5. Shri. Rajiv Nayar, for petitioner mainly urged following contentions: a winding up petition can be presented by persons specified in Section 272(1) of the Act, which includes both Registrar and \'any person authorized by the Central Government\'. Section 272(3) provides that Registrar shall obtain previous sanction from the Central Government to present a winding up petition. The second proviso to Section 272(3) mandates that Central Government shall not accord sanction unless Company has been given an opportunity of making representation; in this case, no opportunity was given to Devas prior to the accord of sanction by the Central Government; the order passed by the Central Government authorizing the Chairman and Managing Director of Antrix Corporation to file winding up petition is malafide exercise of power; the agreement between Antrix and Devas has been terminated on the ground of force majeure after taking opinion from the learned Additional Solicitor General and not on the ground of fraud; the arbitral award passed by ICC is unanimous;</h4><h4>6. Shri. Nargund and Shri. Venkataraman, learned Additional Solicitors General for the Union of India and Antrix Corporation argued opposing the petition.<br>7. I have carefully considered rival contentions and perused the records. In the conspectus of facts of this case, following points arise for consideration:-&nbsp;</h4><h4 style=\"margin-left: 25px;\"><b>(1) Whether Section 272 (1)(e) is ultra vires Constitution of India? and<br>(2) Whether order dated 18.01.2021 needs any interference?</b></h4><h4><span style=\"background-color: rgb(255, 255, 0);\"><b>Re. Point No.1&nbsp;</b></span>21. It is settled that when a provision of law is challenged, Courts are required to exercise restraint and be cautious in striking down a provision. </h4><h4><span style=\"font-size: 1.3125rem;\">30. <b>Admittedly, Antrix Corporation is fully owned by&nbsp;</b></span><b>the Government of India and the Secretary of the Department of Space is the Ex-officio Chairman of Antrix Corporation.</b> It is no doubt true that agreement has been cancelled on the ground of force majeure and Devas has obtained an Arbitral Award. But, at the same time, the contents of the letter dated January 14, 2021 written by the Antrix Corporation cannot be brushed aside. The Managing Director of Antrix Corporation has stated that with an Investment of Rs. 579 Crores, Devas have provided ISP services for about 25 people and earned a revenue of Rs.80,000/-. It is also stated that out of Rs.579 Crores, Rs.233 Crores have been moved out towards litigation services and large sum of money has been transferred to the wholly owned subsidiary of Devas in USA.</h4><h4>31. Petitioner has annexed a copy of the Company petition filed by Antrix Corporation before NCLT as Annexure-H to the writ petition.&nbsp;<br>32. It is the specific case of Antrix Corporation that there was collusion of its officials. </h4><h4>36. It is further averred in the Company Petition that Devas, a Company incorporated without any commercial antecedents and hardly in existence for six months had sold its shares at exhorbitant rates, as high as Rs.1.26 Lakhs per share, to foreign investors. [paragraph 13(v)].</h4><h4>42. Admittedly, petitioner has challenged the order passed by NCLT before NCLAT. Pursuant to the order passed by NCLAT, petitioner has filed an impleading application in the Company winding up Petition pending before NCLT. Thus, petitioner is privy to all averments contained in the Company Petition. It has approached this Court under Article 226 of the Constitution of India as one of the shareholders of Devas. However, petitioner has not whispered anything about the serious allegations of siphoning of the money, levelled against Devas and other illegalities alleged in the Company Petition.<br>43. Antrix Corporation is fully owned by the Government of India. It’s specific case is, its officers are involved in the fraud. Law enforcing agencies such as CBI, ED, Authorities under PMLA have conducted investigation. As recorded hereinabove, Secretary, Department of Space is ex-officio Chairman of Antrix Corporation and he has sought for sanction to liquidate Devas. It is settled that Courts must presume that all actions of the executive shall&nbsp;be in consonance with the Rules of business of the Government. In order to substantiate the malafides on the part of the Central Government, one of the arguments advanced by Shri. Nayar is that the sanction has been accorded in a hurried manner.<br>47. In the case on hand, petitioner is a miniscule shareholder in Devas. It has already filed an application for impleadment before the appropriate forum namely the NCLT. Devas is not aggrieved by the sanction order. Petitioner has all opportunity to urge its contentions before NCLT. At this juncture, there is no order, which has any civil consequences.<br></h4><h4><b>51. One of the most profound tenets of Constitutionalism is presumption of Constitutionality assigned to each legislation enacted. Indubitably, Parliament has competence. The sanction accorded by the Central Government does not meet petitioner with any Civil consequence. Devas has not challenged the sanction order. Petitioner has failed to demonstrate infringement of any rights enshrined in Part-III of Constitution of India.&nbsp;</b></h4><h4>52. Having held that Registrar and \'a person authorized by the Central Government\' fall into different categories, it does not warrant reading down Section 272(3) of the Companies Act.<br>53. Accordingly, both points for consideration are held in the negative.<br>54. Resultantly, this writ petition must fail and it is accordingly dismissed with cost of Rs.Five Lakhs payable in the name of the Registrar General of this Court within four weeks from today and Registrar General shall report compliance.<br><br></h4>', '135f9943792f667473afe89388f6afe0.jpg', '7cda3e0df13133a8fab7a838587e46c4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-28', 1, '', '', '2021-04-29 00:07:46', '2021-04-28 14:03:01'),
(718, 'LXo6lxWJN6y6j6wSCY6SkBAfm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Re-Compensate forest land taken four decades ago for Harangi Reservoir Project. Karnataka High Court directs the State Government to handover 11,722 hectares of Revenue lands to Forest Department. 8 April 2021 ', '<h4>K.A.Ravi Chengappa and another vs The Principal Secretary to Government of Karnataka and others. </h4><h4>Writ Petition 12038 of 2020 (PIL) decided on 8 April 2021. </h4><h4>Justice B.V. Nagarathna and Justice J.M. Khazi. </h4><h4>Judgment Link: <a href=\"https://karnatakajudiciary.kar.nic.in/judgements/WP_12038_27042021.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/WP_12038_27042021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 1 & 2. This writ petition is filed in Public Interest. t is the case of the petitioners that an extent of</h4><h4>land measuring 11,722.29 Hectares of C and D category have not been physically handed over by the Revenue Department including respondent No.2 to the Forest Department by entering the name of the Forest Department in the revenue records pursuant to Government Order No.RD 106 LGP 88, dated 20.07.1994. Hence, a direction is sought in that regard.<br>3. According to the petitioners, the Harangi Dam/Reservoir built during 1970’s, is located near Hudgur Village, Somwarpet Taluk, Kodagu District, which is about 9 kms. away from Kushalnagar Town. The Harangi Dam is situated in the Western Ghats of Kodagu District, which is a catchment area of Harangi River, which is about 717 kms. in length. The Harangi river ultimately emerges with Cauvery River in Kodagu District near Kudige in Somwarpet Taluk.<br>4. While constructing the Harangi Dam/Reservoir, the State Government had released 900 acres of land from  the Yadavanadu forest area and 3000 acres from the Atturu forest area, as per the Government Order No.AFD 71FGL 72 dated 12.05.1972, in order to rehabilitate the persons who had lost their lands on account of the construction of Harangi Dam/Reservoir Project. In exchange of the said land, the State Government ordered that, 18,000 acres of land of Revenue Department shall be handed over to the Forest Department by Proceedings of the Government of Mysore dated 12.05.1972 (Annexure-A).<br>5. The grievance of the petitioners ventilated in this Public Interest Litigation is, that the Order dated 12.05.1972 has not been given effect to even after a lapse of four decades, inasmuch as the second respondent the Deputy Commissioner, Kodagu District, has not handed over admittedly 11,722.29 Hectares C and D category lands of Kodagu District to the Forest Department. In that regard, Government Order No.RD 106 LGP 88, dated 20.07.1994, was also passed to hand over the said extent of land to the Forest Department as per Annexure-B but the same has not been complied with by the respondents herein.<br><b>6. It is the further case of the petitioners, that on official records the said extent of lands continues to be  shown under the jurisdiction of the Revenue Department and not in the name of the Forest Department. As the transfer of the said land has not taken place, therefore a direction is sought in that regard. It is further submitted that the whole object and purpose of passing the Order dated 12.05.1972, was to re-compensate the forest land, which had been released for the purpose of the Harangi Dam/Reservoir Project and therefore, the petitioners have sought a direction in that regard.</b><br>13. We have considered the submissions of the learned counsel for the respective parties and we find that the object and purpose of issuance of the Government Orders dated 12.05.1972 and 20.07.1994 must be given effect to and fulfilled, inasmuch as in order to recompence the loss of the forest land due to the construction of the Harangi Dam/Reservoir Project, the State Government in its wisdom transferred totally 11,722.29 Hectares of C and D revenue lands to the Forest Department. Ultimately, the loss of forest land for the purpose of construction of the project led to the State Government to compensate the same and the extent of 11,722.29 Hectares of C and D lands were transferred to the Forest Department, but unless and until the said lands are indicated as forest lands in the official records, the same would not acquire the status of forest lands. <br>14. In this regard, it would be useful to refer to the -definition of Forest, which has been given by the Hon’ble Supreme Court in the case of T.N.Godavarman Thirumulkpad vs. Union of India and Others reported in [(1997) 2 SCC 267] under the provisions of the Forest Conservation Act, 1980, which is a Central Act. The Hon’ble Supreme Court has held that, the expression “forest” must have within its scope and ambit, not only forest as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. The provisions of the Forest Conservation Act, 1980, for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. <br></h4><h4><span style=\"font-size: 1.3125rem;\">T.N.Godavarman</span>......There has been shortfall with regard to the regeneration and as a result thereof forest cover is depleting. That shortfall has to be made up and for the future such felling has to be done which will ensure that there is at least no further depletion of the forest cover, and that the targets for increase in forest cover, as contemplated in the Working Plans, are met. In other words, regeneration should be commensurate with the felling, and to the extent stipulated in the Working Plans.”<br>Thereafter, on 26/09/2005, the Hon’ble Supreme Court, while dealing with conservation, preservation and protection of forest and ecology and the measures required to compensate for loss of forest land so as to mitigate the adverse effects on the ecology when forest land is used for non-forest purpose, observed as under:-<br></h4><h4 style=\"margin-left: 25px;\">“Natural resources are the assets of entire nation. It is the obligation of all concerned including Union Government and State Governments to conserve and not waste these resources. Article 48A of the Constitution of India requires the State shall endeavour to protect and improve the environment and to safeguard the forest and wild life of the country. Under Article 51A, it is the duty of every citizen to protect and improve the natural environment including forest, lakes, rivers and wildlife and to have compassion for living creatures. In the present case, the question is about conservation, preservation and protection of forests and the ecology. When forest land is used for nonforest purposes, what measures are required to be taken to compensate for loss of forest land and to compensate effect on the ecology, is the main question under consideration. Forests are a vital component to sustain the life support system on the earth. Forests in India have been dwindling over the years for a number of reasons, one of it being the need to use forest area for development activities including economic development. Undoubtedly, in any nation development is also necessary but it has to be consistent with protection of environments and not at the cost of degradation of environments. Any programme, policy or vision for overall development has to evolve a systematic approach so as to balance economic development and environmental protection. Both have to go hand in hand in hand. In ultimate analysis, economic development at the cost of degradation of environments and depletion of forest cover would not be long lasting. Such development would be countered productive. Therefore, there is an absolute need to take all precautionary measures when forestlands are sought to be directed for nonforest use.”</h4><h4><span style=\"font-size: 1.3125rem;\">....Some of the criteria </span>reflecting key elements of ecological, economic and social sustainability are:</h4><h4 style=\"margin-left: 25px;\">1. Conservation of biological diversity.<br>2. Maintenance of productive capacity of forest ecosystems.<br>3. Maintenance of forest ecosystem health and vitality.<br>4. Conservation and maintenance of soil and water resources.<br>5. Maintenance of forest contribution to global carbon cycles.<br>6. Maintenance and enhancement of long-term multiple socioeconomic benefits to meet the needs of societies.<br>7. Legal, institutional and economic framework for forest conservation and sustainable management. <br></h4><h4 style=\"\">15. In view of the above mandate of the Hon’ble Supreme Court, the second respondent is directed to transfer the revenue entries in respect of 11,722.29 Hectares of C and D lands in the name of the Forest Department of Kodagu District in terms of the Government Orders dated 12.05.1972 and 20.07.1994 and to take all incidental and ancillary steps in that regard. The transfer in the official records in the name of the forest department Kodagu District, shall be made within a period of one month from the date of receipt of the certified copy of this order.<br><br></h4>', '7f9e8e1178f678f545fa61bdfb917ceb.PNG', 'a8cadfb425265feeb72d2a9fb47ce6ab.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-08', 1, '', '', '2021-04-29 00:56:27', '2021-04-29 01:24:51'),
(719, 'dws5YJq0FBQMuseiQQiLqvguc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Domestic Violence Act. Application to Magistrate under Section 12 is NOT governed by limitation under Section 468 Criminal Procedure Code since proceedings under Section 12 are not offences.  Karnataka High Court. 1 April 2021', '<h4>Puttaraju vs Shivakumari. </h4><h4>Criminal Revision Petition 730 of 2019 decided on 1 April 2021. </h4><h4>Judgment Link: <a href=\"https://karnatakajudiciary.kar.nic.in/judgements/Crl-RP-730-2019.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/Crl-RP-730-2019.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 2. The petitioner and the respondent are husband and wife. The respondent filed Crl.Misc.No.206/2011 against<br>the petitioner before the trial Court under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (‘the DV Act’ for short) seeking monetary relief and custody order as contemplated under Sections 20 and 21 of the DV Act on the ground that she was subjected to domestic violence in the hands of the petitioner. 3. The trial Court by order dated 11.04.2016 partly allowed the said petition, awarded Rs.8,000/- per month to the respondent and her children as maintenance and house rent. The petitioner was also restrained from taking away the children from her custody and committing domestic violence.   </h4><h4>4. The petitioner challenged the said order of the trial Court before IX Additional District & Sessions Judge, Bengaluru Rural District, Bengaluru in Crl.A.No.19/2016. The First Appellate Court granted interim stay subject to the petitioner depositing Rs.4,32,000/- before the First Appellate Court towards arrears of maintenance. Accordingly, the petitioner deposited the said amount before First.Appellate Court.<br>5. Ultimately on hearing the parties, the First Appellate Court by the impugned order dismissed the appeal and confirmed the order of the trial Court. Further the First Appellate Court directed to transmit the amount in deposit to the trial Court with a further direction to the trial Court to release the said amount to the respondent wife.<br>6. Accordingly, the said amount is transmitted to the trial Court and pending in Court deposit. The respondent has filed the above application seeking release of the said amount. <br>7. Sri L.Rajanna, learned Counsel for the petitioner opposes the application on the ground that the petition was filed 10 years from the date of the alleged domestic incident, therefore the petition itself was not maintainable. </h4><h4>9. The relationship between the parties is not in dispute. <b style=\"background-color: rgb(255, 255, 0);\">The only question for consideration is, for an application under Section 12 of the DV Act whether Section 468 of Cr.P.C. which prescribes the limitation is applicable?</b><br>12. Reading of Section 468 (1) and 468(2)(b) of Cr.P.C. itself shows that the bar of limitation for taking cognizance is intertwined with an offence. Section 468 of Cr.P.C. comes into picture only if there is an offence. If there is no offence, no limitation.<br>13. Then the question is whether the act alleged in the application under Section 12 of the DV Act itself constitutes an offence by the respondent. <br>15. So far this petition, Sections 20(d) and 21 of the DV Act are relevant. <br>16. To attract Section 468 of Cr.P.C, essentially the Act alleged must be an offence. Under the DV Act, the offence is not defined, as defined in Section 40 of IPC. Therefore, we have to revert to the General Clauses Act, 1897. <br><b>17. Perusal of the above provision makes it clear that to call an act as offence, act or omission must be made punishable under law. As already pointed out, under Sections 12, 20 and 21 of the DV Act have not made the domestic violence alleged thereunder punishable or defined them as offence. Section 12 of the DV Act is only an enabling provision to initiate enquiry to find out whether such act or omission is committed.</b><br>19. Perusal of Section 31 of the DV Act makes it clear that only breach of the protection order or interim protection order etc. passed under Section 12 of the DV Act constitutes an offence and made punishable. Section 12 of the DV Act is only enabling provision. Therefore it is clear that the act or omission contemplated under Section 31 of the DV Act is an offence and the application under Section 12 of the DV Act itself is not an offence.<br><b style=\"background-color: rgb(255, 255, 0);\">20. When the application under Section 12 of the DV Act is not covered under the term ‘offence’, Section 468 of Cr.P.C. is inapplicable. Therefore the application of Section 468 of Cr.P.C. to an application under Section 12 of the DV Act is clearly a misconception. </b><br>21. One has to bear in mind that the proceedings under the DV Act are neither purely criminal nor civil proceedings. The very object of the DV Act as could be seen from the preamble is to protect the women against violence of any kind occurring within the family. If at all the Act intended to make each and every Act of domestic violence offences, then Parliament would not have legislated separate law i.e. IPC dealing with offences against Women like 498A, 306, 304B or offences against body in Chapter XVI of IPC. The purpose of the DV Act is to protect and save the family.<br>26. In the judgments of the Hon’ble Supreme Court referred to above, the interplay of Section 3(38) of the General Clauses Act, Section 31 of the DV Act and Section 468 of Cr.P.C. had not fallen for consideration.<b style=\"background-color: rgb(255, 255, 0);\"> In view of the later judgment of the Hon\'ble Supreme Court in Krishna Bhattacharjee’s case referred to supra the judgments of this Court in Srinivas’s case and Gurudev’s case cannot be followed. </b>Therefore this Court does not find any merit in the contention that the petition was time barred. Under the circumstances the respondent is entitled for withdrawal of the amount. The application is allowed.</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Cases referred: </span></h4><h4>(1) Inderjit Singh Grewal v. State of Punjab & Anr.2012 Cri.L.J.309</h4><h4>(2) J.Srinivas vs. G.Dhanalakshmi. Crl.P.No.2419/2009 DD 05.04.2013</h4><h4>(3) Gurudev & Anr. vs. Jayashree. Crl.P.No.11476/2013 DD 08.01.2014</h4><h4>(4) Krishna Bhattacharjee v. Sarathi Choudhury.(2016) 2 SCC 705</h4><h4>(5) Vikas and others v. Smt. Usha Rani & Anr.Crl.R.No.3084/2016 (O & M) DD 17.04.2018</h4><h4><br></h4><h4><br></h4><h4><br></h4><h4><br></h4><h4><br></h4><h4><br></h4><h4><br></h4><h4><br></h4><h4><br></h4><h4><br></h4><h4><br></h4><h4><br></h4><h4><br></h4><h4><br></h4><h4><br></h4><h4><br></h4>', 'b7571a77ee42c8c7d938c42437deb8df.jpg', '98c506efc0781c8924212b2806f0fc4d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-01', 1, '', '', '2021-04-29 02:20:03', '2021-04-29 02:23:38'),
(720, 'pqCIiiM8M8uUO5Aqs5NBwOVk5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal trial.  Evidence of injured witness is accorded a special status in law and the same cannot be discredited without convincing evidence to the contrary. Supreme Court reiterates. 28 April 2021', '<h4><span style=\"font-size: 1.3125rem;\">Kalabhai Hamirbhai Kachhot vs </span>State of Gujarat. </h4><h4>Criminal Appeal 216 of 2015 decided on 28 April 2021. </h4><h4>Justice Ashok Bhushan and Justice R. Subhash Reddy. </h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Judgment Link</span>: <a href=\"https://main.sci.gov.in/supremecourt/2014/29222/29222_2014_37_1504_27802_Judgement_28-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2014/29222/29222_2014_37_1504_27802_Judgement_28-Apr-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:  19. We also do not find any substance in the argument of the learned counsel that there are major contradictions in the deposition of PWs­ 18   and 19. The contradictions which are sought to be projected are minor contradictions which cannot be the basis to discard their evidence. The judgment of this Court in the case of Mohar & Anr. v. State of U.P (2002) 7 SCC 606 relied on by the learned counsel for the respondent­ State supports the case of the prosecution.  In the aforesaid judgment, this Court has held that convincing evidence is required, to discredit an injured witness.  Para 11 of the judgment reads as under:</h4><h4 style=\"margin-left: 25px;\">“11. The testimony of an injured witness  has  its  own efficacy and relevancy. The fact that the witness sustained injuries on his body would show that he was present at the place   of   occurrence   and   has   seen   the   occurrence by himself. Convincing evidence   would   be   required   to discredit an injured witness. Similarly, every discrepancy in the statement of a witness cannot be treated as fatal. A discrepancy which does not affect the prosecution case materially cannot create any infirmity....\"</h4><h4 style=\"\">Learned   counsel   for   the   respondent­ State   has   also   relied   on   the judgment of this Court in the case of  State of Uttar Pradesh v. Naresh & Ors (2011) 4 SCC 324.  In the aforesaid judgment, this Court has held that the evidence of injured witnesses cannot   be   brushed   aside   without   assigning   cogent   reasons.<br></h4><h4 style=\"margin-left: 25px;\">“27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place  of occurrence  and  this   lends  support   to   his testimony   that   he   was   present   during   the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to   let  his  actual  assailant go unpunished   merely to implicate a third person falsely for the commission of the offence.  Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies   therein.   (Vide Jarnail   Singh v. State of Punjab [(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107] , Balraje v. State of Maharashtra [(2010) 6 SCC 673 : (2010)   3   SCC   (Cri)   211]   and Abdul   Sayeed v. State of M.P. [(2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] )\"<br></h4><h4>20....The omissions  like not seizing the motorcycle and also not seizing the gold chain of one of the victims, by itself, is no ground to discredit the testimony of key witnesses who were examined on behalf of the prosecution, whose say is consistent, natural and trustworthy. </h4><h4>Appeal dismissed<br><br><br></h4><p><br></p>', 'f3bd7ba87381353c4acb98484afa8808.PNG', '05328602c5e5ff3f408b37633028de74.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-28', 1, '', '', '2021-04-29 15:53:50', '2021-04-29 15:55:02');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(721, '4lVGYOIbyypQHUyCzS3aiaDsB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Judicial review. A rule cannot be challenged on grounds of individual hardship. Courts cannot question wisdom behind policy decisions. Karnataka High Court upholds Rule increasing age limit of doctors for posts of General Duty Medical Officers. 12:4:2021', '<h4>Dr.Vikas Gowda vs State of Karnataka. </h4><h4>Writ Petition 11363 and connected matters decided on 12 April 2021. </h4><h4>Justice Aravind Kumar and Justice Pradeep Singh Yerur. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380678/1/WP11363-20-12-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380678/1/WP11363-20-12-04-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 10. Petitioners have secured graduation in MBBS or BDS degree course and on completion of their internship, they came to be appointed by the Government of Karnataka on contract basis as General Duty Medical Officers and have been working from 2018, 2019 and 2020 respectively. As already noticed hereinabove, the draft Rules came to be notified in the Karnataka Gazette dated 06.02.2020 inviting objections and suggestions from all persons to be affected thereby and same was required to be filed within 30 days from the date of publication in the Official Gazette. On receipt of the same, the Rules came to be made. Rule 4 prescribes the age limit and said Rule is required to be extracted and it would suffice for the present writ petitions. <br>11. The said Rule was sought to be amended and by publishing the draft amendment rules in the Karnataka Gazette dated 14.07.2020 objections and suggestions were invited. On receipt of the same, Rule 4 came to be amended along with Rule 6. The words \"twenty one\" appearing in Rule 4 came to be substituted with the words \"twenty six\". It is this  amendment, which had been challenged by petitioners unsuccessfully before the tribunal.<br>12. It is trite law that all citizens are to be extended equal opportunity in the matters relating to employment or appointment of any offices of the State. The Hon\'ble Apex Court in the case of E.P.Royappa vs State of Tamilnadu reported in AIR 1974 SC 555 has held that Article 14 is the genus while Article 16 is a species. <br>14. The twin tests to be satisfied, when any rule or statutory provision is assailed on the ground of contravention of Article 14 is: (i) Classification on which it is founded must be based on an intelligible differentia, which distinguishes persons or things grouped together from others left out of the group; and, (ii) differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision, which is under challenge.</h4><h4>15.The proviso to Article 309 of the Constitution of India enables the Government for framing the rules to prescribe such age limits or to prescribe the extent to which relaxation can be given. The Hon\'ble Apex Court  in the case of Union India and others vs Shivbachan Rai reported in (2001) 9 SCC  356  has held that prescribing the extent of relaxation in age limit for a given post is not violative of Article 14. <br>16. In the matter of P. U. Joshi and others vs Accountant General Ahmedabad and others  reported in (2003) 2 SCC 632 it has been held by Hon\'ble Apex Court that questions relating to the Constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotion and criteria to be fulfilled pertain to the field of policy and within the exclusive discretion and jurisdiction of the State, subject to the limitations or restrictions envisaged in the Constitution and in such circumstances the statutory tribunal cannot direct the Government to have a particular method for eligibility criteria by substituting its views to that of the State. </h4><h4>17. The seven<span style=\"white-space:pre\">	</span>principles formulated by the Hon\'ble Apex Court in State of West Bengal vs Anwar Ali Sarekar reported AIR 1952 SC 75 are as under:</h4><h4 style=\"margin-left: 25px;\"><b><i>\"1. The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to  problems made manifest by experience and its discriminations are based on adequate grounds.<br>2. The presumption may be rebutted in certain cases by showing that on the  face of the statute, there is no classification at all and no difference peculiar to any individual or class and not applicable  to any other individual or class, and yet the law hits only a particular individual or class.<br>3. The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or  circumstances  in the same position, and the varying  needs of different classes of persons often require separate treatment.<br>4. The principle does not take away from the State the power of classifying persons for legitimate purposes.<br>5. Every classification is in some degree likely to produce some inequality, and mere production of inequality is not enough. <br>6. If a law deals equally with members of a well defined class, it is not obnoxious and  it is not open to the charge of denial of equal protection on the ground that it has no application to other persons.<br>7. While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis.\"</i></b></h4><h4>18. It is well settled law that it is open to the appointing authority to lay down requisite qualification for recruitment to Government servant and it would be in the realm of policy maker as held by the Hon\'ble Apex Court in the case of Commissioner of Madras vs Madras Corporation Teachers\'Mandram and others reported in AIR 1997 SC  2131  as to what should be the qualification for the post and it is for the administration to decide.</h4><h4>21. Keeping the aforesaid authoritative principles of law in mind, when the facts on hand are examined, it would clearly indicate that in the Rule which was brought into force with effect from 16.06.2020, the minimum age fixed under Rule 4 for being appointed as Medical Officers was that a candidate should have attained the age of 21 years. The said prescribed age has been increased to 26 years. The object sought to be achieved is to provide a better and quality health service by more experienced Doctors to the general public. It is the stand of the State that the object and purpose of amendment of the Rules is to encourage and utilise the services of experienced Doctors during the pandemic covid-19 situation and extend their valuable services in the rural areas by providing job security on recognising their valuable services. It is no doubt true that experience has not been fixed as the criteria for the appointment to the post of General Duty Medical Officers. However, it does not mean that State has no power to file the minimum age criteria. The enhancement of the age from 21 years to 26 years is based on the intelligible differentia of experience and rural service with the object to provide experienced medical service to the needy public. <br>24. Thus, Government having felt that doctors who are already working and having experience and who have been doing commendable job are required to be provided an opportunity as their services can be utilized for providing better services have thought fit to enhance the minimum age from \'21 years\' to \'26 years\' which cannot be held either discriminatory or irrational. In  the cabinet meeting held on 11.06.2020, the above proposal which was put up for amendment of Rule 4 has been approved vide subject No.32 and endorsed by the Chief Minister vide paragraph 177 at page 107 of the original records.<br>25. For the reasons aforestated, we are of the considered view that point No.(i) formulated herein above deserves to be answered in the negative. It is held Rule 4 of Directorate Health and Family Welfare Services (Recruitment of Senior Medica Officer/Specialists, General Duty Medical Officers and Dental Health Officers) (Special) (Amendment) Rules, 2020 is intravires and not violative of Articles 14, 16, 19 and 21 of the Constitution of India.<br>(i) Writ petitions are dismissed.<br><br></h4>', 'f6304a8c4ed00b1ba7479480981c4f2d.PNG', '543210d1df0800eac081d4b56aa26af5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-12', 1, '', '', '2021-04-29 17:27:05', '2021-04-29 18:04:32'),
(722, 'RwITwD2KP8ILk8BetQVHRhbvn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Execution of decree. Actual difficulties of a litigant in India begin when he has obtained a decree. Supreme Court lays down guidelines for speedy execution while upholding painstaking judgment of the Karnataka High Court. 22 April 2021', '<h4>Rahul S Shah vs Jinendra Kumar Gandhi and others. </h4><h4>Civil Appeal 1659 and 1660 of 2021 decided on 22 April 2021. </h4><h4>Chief Justice S.A.Bobde, Justice L. Nageswara Rao and Justice S. Ravindra Bhat. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/12200/12200_2020_31_301_27757_Judgement_22-Apr-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/12200/12200_2020_31_301_27757_Judgement_22-Apr-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 2. The present appeals arise out of the common judgment and order dated 16th January, 2020 of the Karnataka High Court which dismissed several Writ Petitions. The course of the litigation highlights the malaise of constant abuse of procedural provisions which defeats justice, i.e. frivolous attempts by unsuccessful litigants to putting up spurious objections and setting up third parties, to object, delay and obstruct the execution of a decree.</h4><h4>19. A perusal of the common impugned order shows that High Court has painstakingly catalogued all proceedings chronologically and their outcomes. The final directions in the impugned order is as follows:<br>(a) the other challenge by the JDrs and the Obstructors having been partly favoured, the impugned orders of the Executing Court directing Delivery Warrant, are set at naught, and the matter is remitted back for consideration afresh by appointing an expert person/official as the Court Commissioner for accomplishing the identification &amp; measurement of the decreetal properties with the participation of all the stake-holders, in that exercise subject to all they bearing the costs &amp; fees thereof, equally;<br>(b) it is open to the Executing Court to take into consideration the entire evidentiary material on record hitherto including the Report already submitted by the Court Commissioner Shri Venkatesh Dalwai,<br>(c) the amount already in deposit and the one to be deposited by the Obstructors in terms of orders of Coordinate Benches of this Court mentioned in paragraph 8 supra shall be released to the parties concerned, that emerge victorious in the Execution Petitions;<br>(d) the JDrs shall jointly pay to the DHrs collectively an exemplary cost of Rs. 5,00,000/- (Rupees five lakh)<br>only in each of the Execution Petitions within a period of eight weeks, regardless of the outcome of the said petitions; and, if, the same is not accordingly paid, they run the risk of being excluded from participation in the Execution Proceedings, in the discretion of the learned judge of the Court below; and, (e) the entire exercise including the disposal of the Execution Petitions shall be accomplished within an outer limit of six months, and the compliance of such accomplishment shall be reported to the Registrar General of this Court.<br>24. In respect of execution of a decree, Section 47 of CPC contemplates adjudication of limited nature of issues relating to execution i.e., discharge or satisfaction of the decree and is aligned with the consequential provisions of Order XXI. Section 47 is intended to prevent multiplicity of suits. It simply lays down the procedure and the form whereby the court reaches a decision. For the applicability of the section, two essential requisites have to be kept in mind. Firstly, the question must be the one arising between the parties and secondly, the dispute relates to the execution, discharge or satisfaction of the decree. Thus, the objective of Section 47 is to prevent unwanted litigation and dispose of all objections as expeditiously as possible.<br>25. These provisions contemplate that for execution of decrees, Executing Court must not go beyond the decree. However, there is steady rise of proceedings akin to a re-trial at the time of execution causing failure of realisation of fruits of decree and relief which the party seeks from the courts despite there being a decree in their favour. Experience has shown that various objections are filed before the Executing Court and the decree holder is deprived of the fruits of the litigation and the judgment debtor, in abuse of process of law, is allowed to benefit from the subject matter which he is otherwise not entitled to.<br>26. The general practice prevailing in the subordinate courts is that invariably in all execution applications, the Courts first issue show cause notice asking the judgment debtor as to why the decree should not be executed as is given under Order XXI Rule 22 for certain class of cases. However, this is often misconstrued as the beginning of a new trial. For example, the judgement debtor sometimes misuses the provisions of Order XXI Rule 2 and Order XXI Rule 11 to set up an oral plea, which invariably leaves no option with the Court but to record oral evidence which may be frivolous. This drags the execution proceedings indefinitely.<br>42. All Courts dealing with suits and execution proceedings shall mandatorily follow the below-mentioned directions:</h4><h4 style=\"margin-left: 25px;\">1. In suits relating to delivery of possession, the court must examine the parties to the suit under Order X in relation to third&nbsp;party interest and further exercise the power under Order XI Rule 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to third party interest in such properties. </h4><h4 style=\"margin-left: 25px;\">2. In appropriate cases, where the possession is not in dispute and not a question of fact for adjudication before the<br>Court, the Court may appoint Commissioner to assess the accurate description and status of the property.<br>3. After examination of parties under Order X or production of documents under Order XI or receipt of commission report, the Court must add all necessary or proper parties to the suit, so as to avoid multiplicity of proceedings and also make such joinder of cause of action in the same suit.<br>4. Under Order XL Rule 1 of CPC, a Court Receiver can be appointed to monitor the status of the property in question as custodia legis for proper adjudication of the matter.<br>5. The Court must, before passing the decree, pertaining to delivery of possession of a property ensure that the decree is unambiguous so as to not only contain clear description of the property but also having regard to the status of the property.<br>6. In a money suit, the Court must invariably resort to Order XXI Rule 11, ensuring immediate execution of decree for payment of money on oral application.<br>7. In a suit for payment of money, before settlement of issues, the defendant may be required to disclose his assets on oath, to the extent that he is being made liable in a suit. The Court may further, at any stage, in appropriate cases during the pendency of suit, using powers under Section 151 CPC, demand security to ensure satisfaction of any decree.<br>8. The Court exercising jurisdiction under Section 47 or under Order XXI of CPC, must not issue notice on an application of third-party claiming rights in a mechanical manner. Further, the Court should refrain from entertaining any such application(s) that has already been considered by the Court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant.<br>9. The Court should allow taking of evidence during the execution proceedings only in exceptional and rare cases where the question of fact could not be decided by resorting to any other expeditious method like appointment of Commissioner or calling for electronic materials including photographs or video with affidavits.<br>10. The Court must in appropriate cases where it finds the objection or resistance or claim to be frivolous or mala fide, resort to Sub-rule (2) of Rule 98 of Order XXI as well as grant compensatory costs in accordance with Section 35A.<br>11. Under section 60 of CPC the term “…in name of the judgment- debtor or by another person in trust for him or on his behalf” should be read liberally to incorporate any other person from whom he may have the ability to derive share, profit or property.<br>12. The Executing Court must dispose of the Execution Proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay.<br>13. The Executing Court may on satisfaction of the fact that it is not possible to execute the decree without police assistance, direct the concerned Police Station to provide police assistance to such officials who are working towards execution of the decree. Further, in case an offence against the public servant while discharging his duties is brought to the knowledge of the Court, the same must be dealt stringently in accordance with law.<br>14. The Judicial Academies must prepare manuals and ensure continuous training through appropriate mediums to the Court personnel/staff executing the warrants, carrying out attachment and sale and any other official duties for executing orders issued by the Executing Courts.<br></h4><h4>43. We further direct all the High Courts to reconsider and update all the Rules relating to Execution of Decrees, made under exercise of its powers under Article 227 of the Constitution of India and Section 122 of CPC, within one year of the date of this Order. The High Courts must ensure that the Rules are in consonance with CPC and the above directions, with an endeavour to expedite the process of execution with the use of Information Technology tools. Until such time these Rules are brought into existence, the above directions shall remain enforceable.<br>44. The appeals stand dismissed.<br><br><br></h4>', 'f1d2c43c1df994a42fb03197aaf1fefc.PNG', 'f7d1ac9fc456c184e59f7faa87fcc954.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-22', 1, '', '', '2021-04-29 18:27:22', '2021-04-29 21:05:40'),
(723, 'kNluFzfJReqIZlSI0wlNzb2Of', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Receiver appointed by the Court under Order 40 can, to preserve the estate, institute a suit for recovery of possession from the tenant. Supreme Court. 9 May 2014', '<h4>Shree Ram Urban Infrastructure Ltd. v. High Court of Bombay. </h4><h4>Civil Appeal 5528 of 2014 decided on 9 May 2014.</h4><h4>Justice Chandramauli Kr. Prasad and Pinaki Chandra Ghose. </h4><h4>Reported in (2015) 5 SCC 539<br>Judgment Link: <a href=\"https://main.sci.gov.in/jonew/judis/41533.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/41533.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 6. In support of his contention with regard to the first point that the suit was liable to be dismissed as it was filed by the Court Receiver without obtaining leave of the Court, he relied upon the decision of the Court in Drobomoyi Gupta v. C.T. Davis ILR (1887) 14 Cal 323.  <br>11. Per contra, Mr Soli Sorabjee, learned Senior Counsel appearing on behalf of the respondent Court Receiver, submitted that the Court Receiver has a right to take all steps in the matter since the Court Receiver has been appointed with full powers to administer the property which is custodia legis and furthermore, he has acted in the matter in his capacity as a Receiver. He also drew our attention to Order 40 Rule 1 of the Code of Civil Procedure, 1908, which is reproduced hereinbelow:</h4><h4 style=\"margin-left: 25px;\">“1.Appointment of Receivers.—(1) Where it appears to the Court to be just and convenient, the Court may by order—<br>(a) appoint a Receiver of any property, whether before or after decree;<br>(b) remove any person from the possession or custody of the property;<br>(c) commit the same to the possession, custody or management of the Receiver; and<br>(d) confer upon the Receiver all such powers, as to bringing and defending suit and for the realisation, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Court thinks fit.”<br></h4><h4>12. Mr Soli Sorabjee pointed out that Order 40 Rule 1(d) has specifically given all such powers as to bringing and defending the suits and for the realisation, management, protection and preservation of the property which the Receiver held on behalf of the court. According to Mr Sorabjee, learned Senior Counsel, the Court Receiver should be able to take all steps necessary to preserve and protect the property as a prudent owner of the property would take. He also drew our attention to the order appointing the Receiver and contended that if a tenant is in arrears of rent or if the leased property after recovery of possession can fetch more income to the estate, the Court Receiver is entitled to take steps in the matter and can file a suit for recovery of possession. He further contended that in the instant case, the suit premises are outside the purview of the Rent Act. He also relied upon the old decisions in Huri Dass Kundu v. J.C. Macgregor ILR (1891) 18 Cal 478 and submitted that the Court held that the terms of the order appointing the Receiver are sufficient to confer on him the power to bring a suit to eject a tenant. He also relied on the decision in Jagat Tarini Dasi v. Naba Gopal Chaki ILR (1907) 34 Cal 305, wherein it was held as follows: (ILR p. 318)</h4><h4 style=\"margin-left: 25px;\">“… The Receiver, as an officer of the court, which has taken control of the property, is for the time being, and for the purpose of the administration of the assets, the real party interested in the litigation; there is no substantial reason, therefore, why the suit should not be instituted in his own name. We may further add that there are numerous cases in the books, from which it appears that a Receiver, who has authority to sue, has been allowed to do so in his own name without any objection raised on that ground; see, for instance, Shunmugam v. Moidin ILR (1885) 8 Mad 229, Gopalasami v. Sankara ILR (1885) 8 Mad 418, Sundaram v. Sankara ILR (1886) 9 Mad 334, Drobomoyi Gupta v. C.T. Davis ILR (1887) 14 Cal 323, Huri Dass Kundu v. J.C. Macgregor ILR (1891) 18 Cal 478 and W.R. Fink v. Buldeo Dass ILR (1899) 26 Cal 715. It follows, therefore, that the view, that a court may authorise a Receiver to sue in his own name, and that a Receiver, who is authorised to sue, though not expressly in his own name, may do so by virtue of his appointment with full powers under Section 503 of the Civil Procedure Code, is supported by principle and authority, and is consistent with existing practice. We must, consequently, hold that the second ground taken on behalf of the appellant cannot be sustained.”</h4><h4>15. After considering and analysing all the decisions, in our opinion, we cannot give a narrower construction with regard to the rights/authority given to the Receiver under Order 40 Rule 1(d). We have also considered the appointment order in the present case. In our opinion, the Receiver was given full powers under the provision of Order 40 Rule 1(d) as rightly shown by Mr Sorabjee, learned Senior Counsel and, therefore, the ruling relied upon by Mr Ranjit Kumar, learned Senior Counsel for the appellant, cannot be of any help to him and, accordingly, we reject such contention of Mr Ranjit Kumar, learned Senior Counsel, and hold that in the facts and circumstances of this case, the Receiver has acted in the matter for the purpose of administering the property. Even we have seen that the Supreme Court in Harinagar Sugar Mills Co. Ltd. Harinagar Sugar Mills Co. Ltd. v. M.W. Pradhan, AIR 1966 SC 1707 has held that a Receiver was appointed pending a suit for partition and the Receiver filed a winding-up petition for realisation of debt. It was contended that the Receiver had no power to institute a petition for winding up of a company. The Supreme Court conceding that winding-up order is not a normal alternative to sue but held that it is a form of equitable execution covered by clause (d) of Rule 1(1) of Order 40 of the Code and as such steps could be taken by the Receiver. It is also to be noted that the power must be conferred on the Receiver by the Court either expressly or by necessary implication, as the case may be. In the facts of this case, the Receiver acted to safeguard the interest of the trustees for preserving the estate. We also feel that the Receiver acted in the matter as ought to have been done by the trustees to preserve the estate.<br>16. In Kurapati Venkata Mallayya v. Thondepu Ramaswami & Co. AIR 1964 SC 818, a four-Judge Bench of this Court held that the Receiver has a right to institute a suit when the authority has been given to the Receiver to preserve the estate. Such authority is wide enough to empower the Receiver, as he thought necessary, for preserving the estate and such authority, in our opinion, includes to institute a suit, as has been held by this Court.</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Cases referred: </span><br>1. A.B. Miller v. Ram Ranjan Chakravarti  ILR (1884) 10 Cal 1014, <br>2. Everest Coal Co. (P) Ltd. v. State of Bihar, (1978) 1 SCC 12 <br>3. Anthony C. Leo v. Nandlal Bal Krishnan (1996) 11 SCC 376 <br>4. Krishna Kumar Khemka v. Grindlays Bank P.L.C. (1990) 3 SCC 669 <br>5. Balkrishan Gupta v. Swadeshi Polytex Ltd. (1985) 2 SCC 167  <br>6. Harinagar Sugar Mills Co. Ltd. v. M.W. Pradhan, AIR 1966 SC 1707</h4><p><br></p>', '4130e62517e39b0c96c3ab6d3183678e.PNG', '57264cd38cabda2364aabe4ea82723e7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2014-05-09', 1, '', '', '2021-05-01 01:40:05', '2021-05-01 01:53:25'),
(725, 'uX8d6BNbUIomFT47OB0xU9jOP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contempt of Courts Act, 1971. Provisions of Limitation Act are applicable to contempt proceedings. Supreme Court. 10 August 2001', '<h4>Pallav Sheth v. Custodian. Civil Appeal 2016 of 2001 decided on 10 August 2001<br>Judgment Link: <a href=\"https://main.sci.gov.in/jonew/judis/17898.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/17898.pdf</a><br>Reported in (2001) 7 SCC 549 at page 558<br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 14. The Contempt of Courts Act, 1971 was enacted, as per the Preamble, with a view “to define and limit the powers of certain courts in punishing contempts of courts and to regulate their procedure in relation thereto”. It provides for action being taken in relation to civil as well as criminal contempt. It is not necessary, for the purpose of this case, to analyse various sections of the Act in any great detail except to notice that Sections 3 to 7 of the Contempt of Courts Act, 1971 provides for what is not to be regarded as contempt. Section 8 specifies that nothing contained in the Act shall be construed as implying that any other valid defence in any proceedings for contempt of court ceases to be available merely by reason of the provisions of the 1971 Act. Section 9 makes it clear that the Act will not be implied as enlarging the scope of contempt. Section 10 contains the power of the High Court to punish contempts of subordinate courts, while Section 12 specifies the punishment which can be imposed for contempt of court and other related matters. Procedure to be followed where contempt is in the face of the Supreme Court or a High Court is provided in Section 14, while cognizance of criminal contempt in other cases is dealt with by Section 15. Section 15 has to be read with Section 17 which provides for procedure after cognizance has been taken under Section 15. A decision of the High Court to punish for contempt is made appealable under Section 19 of the Act.<br>15. Sections 20 and 22, with which we are concerned in the present case, read as follows:<br></h4><h4 style=\"margin-left: 25px;\">“20. Limitation for actions for contempt.—No court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed.<br>22. Act to be in addition to, and not in derogation of, other laws relating to contempt.—The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law relating to contempt of courts.”<br></h4><h4>42. The decision in Om Prakash Jaiswal case [(2000) 3 SCC 171] to the effect that initiation of proceedings under Section 20 can only be said to have occurred when the court formed the prima facie opinion that contempt has been committed and issued notice to the contemner to show cause why it should not be punished, is taking too narrow a view of Section 20 which does not seem to be warranted and is not only going to cause hardship but would perpetrate injustice. A provision like Section 20 has to be interpreted having regard to the realities of the situation. For instance, in a case where a contempt of a subordinate court is committed, a report is prepared whether on an application to court or otherwise, and reference made by the subordinate court to the High Court. It is only thereafter that a High Court can take further action under Section 15. In the process, more often than not, a period of one year elapses. If the interpretation of Section 20 put in Om Prakash Jaiswal case [(2000) 3 SCC 171] is correct, it would mean that notwithstanding both the subordinate court and the High Court being prima facie satisfied that contempt has been committed the High Court would become powerless to take any action. On the other hand, if the filing of an application before the subordinate court or the High Court, making of a reference by a subordinate court on its own motion or the filing of an application before an Advocate-General for permission to initiate contempt proceedings is regarded as initiation by the court for the purposes of Section 20, then such an interpretation would not impinge on or stultify the power of the High Court to punish for contempt which power, dehors the Contempt of Courts Act, 1971 is enshrined in Article 215 of the Constitution. Such an interpretation of Section 20 would harmonise that section with the powers of the courts to punish for contempt which is recognised by the Constitution.<br>47. Section 17 of the Limitation Act, inter alia, provides that where, in the case of any suit or application for which a period of limitation is prescribed by the Act, the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of the defendant or his agent [Section 17(1)(b)] or where any document necessary to establish the right of the plaintiff or the applicant has been fraudulently concealed from him [Section 17(1)(d)], the period of limitation shall not begin to run until the plaintiff or the applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production. These provisions embody fundamental principles of justice and equity viz. that a party should not be penalised for failing to adopt legal proceedings when the facts or material necessary for him to do so have been wilfully concealed from him and also that a party who has acted fraudulently should not gain the benefit of limitation running in his favour by virtue of such fraud.<br>48. The provisions of Section 17 of the Limitation Act are applicable in the present case. The fraud perpetuated by the appellant was unearthed only on the Custodian receiving information from the Income Tax Department, vide their letter of 5-5-1998. On becoming aware of the fraud, application for initiating contempt proceedings was filed on 18-6-1998, well within the period of limitation prescribed by Section 20. It is on this application that the Special Court by its order of 9-4-1999 directed the application to be treated as a show-cause notice to the appellant to punish him for contempt. In view of the abovestated facts and in the light of the discussion regarding the correct interpretation of Section 20 of the Contempt of Courts Act, it follows that the action taken by the Special Court to punish the appellant for contempt was valid. The Special Court has only faulted in being unduly lenient in awarding the sentence. We do not think it is necessary, under the circumstances, to examine the finding of the Special Court that this was a continuing wrong or contempt and, therefore, action for contempt was not barred by Section 20.</h4><p><br></p>', '4293192b0c4bba7f274238bb9ec4143d.PNG', 'e1d72ecc8360a6c8f745f4ad9d0ed9d8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2001-08-10', 1, '', '', '2021-05-03 04:30:27', '2021-05-03 04:30:27'),
(726, 'eckhfe3yWzelpcZBZR2oGQaFj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Specific Relief Act, 1963. Amendment of Section 20 is prospective in nature. It does not apply to pending suits and appeals. Karnataka High Court. ', '<h4>M. Suresh vs Mahadevamma and others. </h4><h4>Regular First Appeal 1560/2011 decided on 23 October 2020.<br>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347178/1/RFA1560-11-23-10-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347178/1/RFA1560-11-23-10-2020.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant Paragraph</span>s: 20. The Specific Relief Act, 1963 (‘Act’ for short) has been amended by the Specific Relief (Amendment) Act, 2018 by Act No.18 of 2018, whereby Section 20 of the Act has been substituted inter alia doing away with the wider discretion of the Courts to grant specific performance introducing substituted performance of contract. In terms of the amended Act, the  concept of the jurisdiction to decree specific performance, which was discretionary, is no more available to the cases seeking relief for the breach of contracts etc., The old Section 20 of the Act has been substituted by the new amended Section 20 by Act No.18 of 2018 with effect from 01.10.2018 vide SO  4888(E)  dated  19.09.2018. <br>22.The effect of the phrase ‘substitution’ has been subjected to judicial scrutiny in catena of judgments  of  the  Hon’ble  Apex  Court  and  this  Court. The same is collated to analyze the effect of the Amendment Act 18 of 2018 by way of substitution with effect from 01.10.2018, in particular to decide whether the amended Act is applicable to the pending matters.<br>23, 24. 25, 26, 27, 29, 30, 31 Judgments in Shamrao V. Parulekar  vs.  District  Magistrate, Thana, Bombay AIR 1952 SC 324, C. Gupta Vs. Glaxo-Smithkline Pharamaceuticals Limited (2007) 7 SCC 171, Shyam  Sunder  and  others  vs.  Ram Kumar   and   another (2001) 8 SCC 24, Govardhan M vs. State of Karnataka and Others (2013) 1 Kant LJ 437, Adhunik Steels Ltd., vs. Orissa ManganeseandMinerals(P)Ltd (2007) 7 SCC 125, Ferrodous Estates (Pvt.) Ltd., vs. P. Gopirathnam(dead)and others Civil Appeal No.13516/2015 (D.D. 12.10.2020), Girdhar Das Anandji and another vs. Jivaraj Madhavji Patel and others 1970 SCC Online Patna 10, Moulvi Hossain Mian vs. Raj Kumar Haldar AIR 1943 Calcutta 417, State of Punjab vs. Mohar Singh (1955) 1 SCR 893 referred to.<br>33. In the light of the aforesaid judgments, it is clear that ordinarily, the effect of amendment by ‘substitution’  is  that,  the  substituted  provision  stands repealed and the amended provision is substituted in the place of earlier provision from the date of inception of the enactment, but it is not absolutely applicable in all circumstances. If the amendment Act expressly specifies that the substituted provision shall come into force from a particular date subsequent to the date of amendment/the date the amendment come into force, the said amendment is prospective in nature notwithstanding such amendment is by way of ‘substitution’.   The   intention   of   the   legislature   being clear, no retrospective effect could be given from the date of inception of the statute. There may not be any cavil on this legal proposition relating  to  substantial law. It is well settled that the interpretation  of provisions must depend on the text and context. The  real intention of the legislature has to be gathered from the text and context. The amendment Act contemplates that  the  said  amendment  by  way  of  ‘substitution’  would come into force on such day the Central  Government may, by Notification in the Official Gazette, appoint and different dates may be appointed for different provisions of the Act, 1st October 2018 is the date appointed for the amended provisions to come into effect.<br><b style=\"background-color: rgb(255, 255, 0);\">35. Accordingly, we are of the view that Section 6 of the General Clauses Act, 1897 would apply to the case on hand. As discussed earlier, the right or privilege accrued to the defendant/s under the unamended Act is a substantive right. Indisputably, such rights/privileges vested with the defendants at the time of breach of contract alleged, while filing the suit. Appeal is continuation of original suit. Thus, in our considered opinion, amendment to Section 20 being prospective in nature enforceable with effect from 01.10.2018, the same is not applicable to the pending proceedings governed and continued under the unamended provisions.<br></b><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br></h4><p><br></p>', '529d59428746c6a43df46852b9d83fca.PNG', 'd10a6ad569ce0957ea7b8a70cf4383b4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-10-23', 1, '', '', '2021-05-03 17:38:13', '2022-08-31 15:17:30');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2140, 'bA1DJPOZ88828JOlRPxaHcaza', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Amendment to Payment of Gratuity Act including teachers. The amendment applies only to those teachers who were in service as on 3rd April 1997, and at the time of termination have rendered service of not less than 5 years. Supreme Court clarifies. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Independent Schools Federation of India Vs Union of India and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8162 of 2012 decided on 29 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sanjiv Khanna and Justice Bela M. Trivedi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The civil appeals by way of special leave, which impugn the judgements of the High Court of Allahabad- Lucknow Bench , the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">High Court of Gujarat , the High Court of Delhi , the High Court of Bombay- Aurangabad Bench , the High Court of Punjab and Haryana , the High Court of Chhattisgarh- Bilaspur Bench and the High Court of Madhya Pradesh,-Indore Bench , as well as a batch of writ petitions under Article 32 of the Constitution of India, were heard together as they involve a common question – constitutional validity of the amendment to Section 2(e) and insertion of Section 13A to the Payment of Gratuity Act, 19728 , with retrospective effect from 3rd April 1997 vide the Payment of Gratuity (Amendment) Act, 2009</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The PAG Act enacted and enforced with effect from 16th September 1972, requires payment of gratuity to an employee after he has rendered continuous service for not less than 5 years, on his&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">superannuation, retirement or resignation or on his death or disablement due to accident or disease.&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the present case, we are only concerned with clause (c) and not clauses (a) and (b) to sub-section (3) to Section 1 of the PAG Act. As per clause (c), the PAG Act applies to an establishment or a class of establishments in which ten or more employees are employed, as the Central Government may, by notification, specify on this behalf.&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. In exercise of powers conferred by clause (c) to Section 1(3) of PAG Act vide notification No. S.O. 239, the provisions of the PAG Act were made applicable to the “local bodies” in which ten or more persons are employed, as a class of establishments, with effect from 8th January 1982. As a result, the schools under the local bodies with ten or more employees became liable to pay gratuity to their employees. However, the notification did not apply to private schools.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. By Notification No. S-42013/1/95-SS.(II) issued by the Ministry of Labour and Employment, Government of India on 3rd April, 1997, the provisions of the PAG Act have been made applicable to the educational institutions with ten or more employees. The private schools being educational institutions, in which ten or more persons are employed, became liable to pay gratuity to their employees as per the provisions of the PAG Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. However, some private schools raised a dispute claiming that the teachers in educational institutions or schools are not “employee” as defined in Section 2(e) of the PAG Act.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The contention that the teachers did not fulfil the description of the employees, who are skilled, semi-skilled or unskilled persons employed on wages, was accepted by the Full Bench of the High Court of Gujarat vide judgment dated 4th May 200112. Thus, the teachers were denied the benefit of gratuity, but other employees of the private schools, were entitled to the benefit of gratuity.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. The first ground should not hold us for long, as the legislation in question rectifies the infirmities and defects pointed out by the Court, and the amended clause (e) to Section 2, defining the word “employee” and the newly inserted Section 13A with retrospective effect from 3rd April 1997, effectuate and catalyse the object and purpose of the Notification No. S-42013/1/95-SS.(II). This power to legislate with retrospective effect, which vests in every sovereign legislature, is not taken away by a court decision. However, a court decision cannot be overruled by the legislature. The legislature can amend the language of the provision that was the subject matter of&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the court decision, and such an amendment does not overrule the court decision. Overruling assumes a decision based on the same law. Where the law, as in the present case, has been amended, and the defects have been removed or cured, the law changes, and therefore, the earlier interpretation is no longer applicable and becomes irrelevant. Doctrine of separation of powers demarcates the exclusive domains of the legislature, which enacts the laws, and the courts’, which interpret the law as enacted. The earlier decision in Ahmedabad Private Primary Teachers’ Association (supra) by this Court had interpreted the law, that is, Section 2(e) of the PAG Act, as it then existed in the statute. The judgment even acknowledged and prompted the legislature to enact a legislation granting the benefit of gratuity to teachers, who had been excluded because of the legal flaw. When the legislature acts within its power to usher in a valid law and rectify a legal error, even after a court ruling, the legislature exercises its constitutional power to enact the law and does not overrule an earlier court decision.&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. The second ground is again devoid of any merit and substance. The legislature, vide the Amendment Act, 2009, has given retrospective effect to the amended provision of Section 2(e) and the newly inserted Section 13A with effect from 3rd April 1997, which is also the date of the notification issued by the Government under Section 1(3)(c), making the PAG Act applicable to the educational institutions with ten or more employees. The amendment enforces and gives effect to what was intended by the notification, but could not be achieved on account of the technical and legal defect. The lacuna, a distortion in the language that had the unwitting effect of leaving out teachers, has been rectified so as to achieve the object and purpose behind the issuance of the notification, making the PAG Act applicable to all educational institutions. The argument of the educational institutions that they have been taken by surprise is incorrect and unacceptable as the legislation had cured the inadvertent defect in a statute, as pointed out by this Court, through legislative repair. Private schools, when they claim a vested right&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">arising from the reason of defect, should not succeed, for acceptance would be at the expense of teachers who were denied and deprived of the intended benefit. Marginal inconvenience in the form of financial outgo or difficulty is of little weight, when curing of an inadvertent defect is made retrospectively in greater public interest, which consideration will overrule the interest of one or some institutions. 23 We find little merit in this argument also for the reason, that the observations of this Court in Ahmedabad Private Primary Teachers’ Association (supra) in paragraph 26 were sufficient to indicate that a legislation should intervene to grant the benefit of gratuity to teachers. The contention that the private schools were sure to succeed as to deny the teachers the benefit of the Notification No. S-42013/1/95-SS.(II) dated 3rd April 1997, is questionable and farfetched to be accepted. The challenge was contested and had remained pending before the High Courts and then this Court. The private schools had relied on some judgments of this Court, but these judgments have interpreted the word “employee” under other enactments. The law is subject to uncertainty ex-ante when two or more views are possible, but there may be certainty ex-post litigation in view of the law of precedents, which reduces uncertainty.</span><span style=\"font-size: 12pt;\">&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>&nbsp;1<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. The provisions of the PAG Act, even post the retrospective amendments, will apply only to those teachers who were in service as on 3rd April 1997, and at the time of termination have rendered service of not less than 5 years. The period of 5 years may be partly before 3rd April 1997, as the date on which the person was employed does not determine the applicability of the PAG Act. The date of termination of service, in the form of superannuation,&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">retirement, or resignation, or death or disablement due to accident or disease, should be post the enforcement date, which in the present case is 3rd April 1997. The entire length of service, including the service period prior to 3rd April 1997, is to be counted for the purpose of computing the entitlement condition of 5 years of service. This is the correct effect of the ratio and decision in Management of Goodyear India Limited. (supra) and the decisions explaining retroactive effect of a statute. This legal position would be equally true and correct when the PAG Act was first enforced with effect from 16th September 1972, and when Notification No. S-42013/1/95-SS.(II) under Section 1(3)(c) of the PAG Act was issued and enforced with effect from 3rd April, 1997. It would be the position in case of all notifications issued under Section 1(3)(c) of the PAG Act, unless a contrary intention is expressed, which is not the situation in the present case and thus need not be examined.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20. The schools have claimed violation of Articles 14, 19(1)(g), 21 and 300-A of the Constitution of India which, in our opinion, are not violated as, to deny gratuity benefits to the teachers upon enforcement of the notification No. S-42013/1/95-SS.(II) dated 3rd April 1997 was itself an anomaly which mandated correction.&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The effect of the decision in Ahmedabad Private Primary Teachers’&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Association (supra) was that although private educational institutions were covered under the PAG Act, gratuity benefits could not be extended to teachers in view of the legal flaw in the definition, consequent to which they were not treated as employees. The teachers were discriminated to be denied benefit of gratuity, a terminal benefit, which was payable to other employees of the private schools/educational institutions, including those engaged in administrative and managerial work. The amendment with retrospective effect remedies the injustice and discrimination suffered by the teachers on account of a legislative mistake, which was understood after the pronouncement of the judgment in Ahmedabad Private Primary Teachers’ Association (supra). The amendment was necessary to ensure that something which was due and payable to the teachers is not denied to them due to a defect in the statute. Payment of gratuity cannot be categorized as a windfall or a bounty payable by the private schools as it is one of the minimal conditions of service. In this background, the argument of the private schools that they do not have capacity and ability to pay gratuity to the teachers is unapt and parsimonious. All establishments are bound to follow the law, including the PAG Act. As observed earlier, the private schools were certainly aware of the&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">intent of the Government that the educational institutions, as an establishment, would be covered and must pay gratuity upon issue of notification No. S-42013/1/95-SS.(II) dated 3rd April 1997. Some schools have raised an argument relying upon decision of this Court in T.M.A. Pai Foundation and Others v. State of Karnataka and Others31, which observes that as a matter of principle, charging of capitation fee or profiteering by educational institutions is impermissible. However, the judgment does not state that the teachers should not be paid gratuity. In fact, the judgment holds that the educational institutions are entitled to reasonable surplus to meet the cost of expansion and augmentation of the facilities and this does not amount to profiteering. It is possible that in some States there are fee fixation laws which will have to be complied with. But compliance with these laws does not mean that the teachers should be deprived and denied gratuity, which they were/ are entitled to receive as other employees of an educational institution. Regulation of fee is to ensure that there is no commercialisation and profiteering, and the effect is not to prohibit a school from fixing and collecting “just and permissible school fee”, as has been held by this Court in Indian School, Jodhpur and&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Another v. State of Rajasthan and Others.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. Reliance placed on the dissenting opinion of Amarendra Nath Sen, J. in Lohia Machines Ltd. and Another v. Union of India and Others33 is misplaced. The majority opinion of the Constitution Bench Judgment of Five Judges, authored by P.N. Bhagwati, J., had upheld the constitutional validity of Rule 19-A of the Income Tax Rules, 1962, enacted vide Finance Act (No.2 of 1980) with retrospective effect from 1st April 1972, thereby restricting the deduction available under Section 80-J of the Income Tax Act, 1961. In paragraph 78, Amarendra Nath Sen, J., in his dissenting opinion, has observed that a validating act validating any fiscal provision with retrospective operation is usually held not to be unreasonable and arbitrary, as they are generally made to clarify an ambiguity or rectify some flaw or defect. Such validating act should not be construed as having the effect to impose fresh tax with retrospective effect. Thereafter, Amarendra Nath Sen, J., in the context of the amendment, observed that it had the effect of withdrawal of benefit, unequivocally granted by the main provision, which reason has not been accepted and did not find favour with the majority judgment. In the present case, there is no withdrawal&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of benefit unequivocally granted.</span><span style=\"font-size: 12pt;\">&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. A supplementary submission of the private schools was that the judgments of this Court upholding retrospective amendments are valid only when there is a tax implication as the Government has to refund the paid taxes, is unfounded and irrational. The power to amend, which includes the power to amend the statute with retrospective effect, is a constitutional power vested with the legislature, which is not confined and restricted to any particular type of statutes, namely, tax statutes. We would not accept any attempt to circumscribe and limit the power vested with the sovereign legislature, thereby putting fetters when such fetters are not prescribed by the Constitution. When and which cases to exercise the power has to be left to the legislature. In case the constitutional validity of the amendment act is challenged, the court is entitled to examine the relevant circumstances which prompted the legislature to make retrospective amendment. Judicial review, when validity of an amendment act is challenged, is decided on the grounds of lack of legislative competence, violation of the fundamental rights or any other provisions of the Constitution of India. In the present case, the notification No. S-42013/1/95-SS.(II) dated 3rd April 1997 had ensured that the benevolent provisions requiring payment of gratuity should be extended to the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“employees” of the educational institutions. The amendment with retrospective effect is to make the benevolent provisions equally applicable to teachers. The amendment seeks to bring equality and give fair treatment to the teachers. It can hardly be categorised as an arbitrary and high-handed exercise.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. Section 4 of the Repealing and Amendment Act states that the repeal shall not affect any of the enactment in which the repealed enactment has been applied, incorporated or referred to. It also states that the Repealing Act shall not affect the validity, invalidity, effect or consequences of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred etc. This Court in Jethanand Betab v. State of Delhi35 had examined a similar provision of the Repealing and Amendment Act, 1952, whereby the Indian Wireless Telegraph (Amendment) Act, 1949 was repealed in its entirety.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. In most cases, the prayer for stay, as in Civil Appeal No. 8162 of 2012, was not accepted, albeit in some cases, stay has been granted for payment of gratuity for the period prior to 3rd April 1997. As explained above and applying the principle of retroactivity and&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as also following the judgment of this Court in Management of Goodyear India Limited. (supra), this argument raised on behalf of the private schools should fail and is rejected. The partial stay order dated 31st January 2020 passed in SLP (C) No. 2235 of 2020, titled Saint Xaviers High School v. Jayashree Shamal Ghosh, or in any other case, is vacated.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>26. For the reasons mentioned above, the aforesaid appeals, transfer case and the writ petitions are dismissed. The stay orders, as stated above, are vacated. The private schools would make payment to the employees/teachers along with the interest in accordance with the provisions of the PAG Act within a period of 6 weeks from today and in case of default, the employees/teachers may move the appropriate forum to enforce payment in accordance with the provisions of the PAG Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the facts of the case, there will be no orders as to costs.</span><span style=\"font-size: 12pt;\">&nbsp;</span></b></p>', '0f7669d97e119ff68bd33f74935ec1fe.png', 'e24cdd68bd18e7ee52624715d795897d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-31', 1, '', '', '2022-08-31 16:31:49', '2022-09-01 20:56:34'),
(727, 'ANfVK4OjKeZAhjAsh1tfeWzg4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Decree for permanent injunction. After death of plaintiff, legal representatives can enforce decree against defendant. However, such decree cannot be enforced against a purchaser since injunction does not run with the land. Karnataka High Court. 26:8:1992', '<h4>D’Souza v. Joseph.  <br>Regular First Appeal 67 of 1985 decided on 26 August 1992.<br>Justice N.D.V.Bhat <br>Reported in ILR 1992 KAR 2972 <br>4…Whenever and wherever there is a transfer of the property, the injunction granted against the transferor will not be available against the transferee obviously on account of the fact that the injunction does not run with the land. That is the ratio laid down by this Court in the context of the observation made by Mulla in the Civil Procedure Code which is extracted hereinabove. I hasten to add here that the question as to whether a decree for injunction can be enforced against his son decided in the said case is with reference to the question as to what should happen to a decree for injunction after the death of the person against whom the decree for injunction is obtained. In the instant case, the matter is slightly different. The question for consideration is as to what should happen to the decree obtained by the plaintiff after plaintiff’s death. However, one thing is very clear that, if a decree for injunction against a person can be enforced even against his son, it is obvious that a similar logic should hold good even in the case of the death of the plaintiff who has obtained a decree. It is no doubt true that an injunction does not run with the land. However in a case of heirship, the question of transfer of property does not arise. The question of injunction running with the land would not arise in a case where the heirs of the deceased steps into the shoes of the person who has obtained the decree. In my opinion, the observation made in Mulla’s Civil Procedure Code which is extracted at para 5 in the Judgment of this Court in Basavant vs Shidalingappa ILR 1986 KAR 1959 to the effect that a decree for injunction can be enforced against the son of the defendant, should equally hold good in the case of the death of the plaintiff decree holder. In other words, in my view, there should not be any legal impediment for a heir of a decree holder to enforce the decree for injunction against the judgment debtor. As pointed out earlier, the observation made in Mulla’s Civil Procedure Code on the basis of which the Judgment has been delivered by this Court in Basavant Dundappa’s case, mutatis mutandis holds good here also and in that context, I am of the view that there should not be any difficulty for the legal heirs of the deceased plaintiff to enforce the decree for injunction against the judgment debtor.<br><br></h4><p><br></p>', 'db1277c588565ebecef839a2f2c24783.PNG', '15661f1901830b832d75a029efff8eb0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1992-08-26', 1, '', '', '2021-05-03 20:35:18', '2021-05-03 20:40:44'),
(728, 'lwjouE0U2ONI3lES0CFebleOn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Education. Government has no power under the Disaster Management Act, 2005 or under Article 162 of the Constitution to reduce fee structure of educational institutions. Supreme Court. 3 May 2021', '<h4>Indian School Jodhpur and another vs State of Rajasthan and others. </h4><h4>Civil Appeal 1724 of 2021 decided on 3 May 2021. </h4><h4>Justice A.M. Khanwilkar and Justice Dinesh Maheshwari</h4><h4>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2019/38328/38328_2019_34_1501_27945_Judgement_03-May-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/38328/38328_2019_34_1501_27945_Judgement_03-May-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: In these appeals, the challenge is to the<br>orders passed by the State Authorities on 09.04.2020, 07.07.2020 and 28.10.2020 regarding deferment of collection of school fees<br>including reduction of fees limited to 70 per cent of tuition fees by<br>schools affiliated with the Central Board of Secondary Education<br>and 60 per cent from the schools affiliated with Rajasthan Board of<br>Secondary&nbsp; &nbsp;Education,&nbsp; &nbsp;in&nbsp; &nbsp;view&nbsp; &nbsp;of&nbsp; &nbsp;reduction&nbsp; &nbsp;of&nbsp; &nbsp;syllabus&nbsp; &nbsp;by&nbsp; &nbsp;the<br>respective­Boards due to aftermath of pandemic (lockdown) from<br>March 2020.<br>4. The&nbsp; &nbsp;issues&nbsp; &nbsp;involved&nbsp; &nbsp;in&nbsp; &nbsp;all&nbsp; &nbsp;these&nbsp; &nbsp;appeals&nbsp; &nbsp;concern&nbsp; &nbsp;around<br>36,000&nbsp; &nbsp;private&nbsp; &nbsp;unaided&nbsp; &nbsp;schools&nbsp; &nbsp;including&nbsp; &nbsp;220&nbsp; &nbsp;minority&nbsp; &nbsp;private<br>unaided&nbsp; &nbsp;schools&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;State&nbsp; &nbsp;of&nbsp; &nbsp;Rajasthan&nbsp; &nbsp;governed&nbsp; &nbsp;by&nbsp; &nbsp;the<br>provisions of the Act of 2016 referred to above.&nbsp; &nbsp;Accordingly, all<br>these appeals were clubbed and heard analogously.<br>7. It is urged that by now it is well­established that the private<br>unaided schools ought to have maximum autonomy with regard to<br>administration&nbsp; &nbsp;including&nbsp; &nbsp;the&nbsp; &nbsp;right&nbsp; &nbsp;of&nbsp; &nbsp;appointment,&nbsp; &nbsp;disciplinary<br>powers, admission&nbsp; of students and the “fees to&nbsp; be charged” as<br>expounded by this Court in&nbsp; T.M.A.&nbsp; Pai&nbsp; Foundation&nbsp; &amp;&nbsp; Ors.&nbsp; &nbsp;vs.<br>State&nbsp; of&nbsp; Karnataka&nbsp; &amp;&nbsp; Ors.<br>13. The High Court did advert to these arguments canvassed by<br>both sides and eventually dismissed the challenge to the validity of<br>the impugned Act of 2016 vide common judgment and order dated<br>14.08.2019<br>15... However, considering the nature of issues<br>raised and the concerns expressed by the parties, we proceed to<br>address the challenge to the relevant provisions of the Act of 2016<br>in this judgment itself.<br>16. Indeed,&nbsp; &nbsp;a&nbsp; Constitution&nbsp; Bench&nbsp; &nbsp;of&nbsp; this&nbsp; &nbsp;Court&nbsp; in&nbsp; T.M.A.&nbsp; &nbsp;Pai<br>Foundation (supra) has expounded that the private unaided school<br>management must have absolute autonomy to determine the school<br>fees. But at the same time the consistent view of this Court has<br>been restated and enunciated by the Constitution Bench in Modern Dental College and Research Centre&nbsp; (supra) in paragraph 75 of<br>the reported decision.&nbsp; In that, though the fee can be fixed by the<br>educational&nbsp; &nbsp;institutions&nbsp; &nbsp;and&nbsp; &nbsp;it&nbsp; &nbsp;may&nbsp; &nbsp;vary&nbsp; &nbsp;from&nbsp; &nbsp;institution&nbsp; &nbsp;to<br>institution depending upon the quality of education<br>19. After this jurisprudential exposition, it is not open to argue<br>that&nbsp; &nbsp;the&nbsp; &nbsp;Government&nbsp; &nbsp;cannot&nbsp; &nbsp;provide&nbsp; &nbsp;for&nbsp; &nbsp;external&nbsp; &nbsp;regulatory<br>mechanism for determination of school fees or so to say fixation of<br>“just” and “permissible” school fees at the initial stage itself.<br>20. The question is: whether the impugned enactment stands the<br>test of reasonableness and rationality and balances the right of the<br>educational&nbsp; &nbsp;institutions&nbsp; &nbsp;(private&nbsp; &nbsp;unaided&nbsp; &nbsp;schools)&nbsp; &nbsp;guaranteed&nbsp; &nbsp;to<br>them under Article 19(1)(g) of the Constitution in the matter of<br>determination of school fees?<br>22. Section 3 of the Act of 2016 predicates that no school itself or<br>on its behalf shall collect any fee in excess of the fee fixed or<br>approved under the Act of 2016.<br>25. After adverting to Section 8 and Rule 10, it is amply clear that<br>the&nbsp; &nbsp;relevant&nbsp; &nbsp;factors&nbsp; &nbsp;for&nbsp; &nbsp;determination&nbsp; &nbsp;of&nbsp; &nbsp;reasonable&nbsp; &nbsp;school&nbsp; &nbsp;fees<br>under the Act of 2016 and Rules framed thereunder have been duly<br>articulated and are based on objective parameters. We find force in the argument<br>of the respondent­State that the factors referred to in Section 8 and<br>Rule 10 for determination of fee are founded on the dictum of this<br>Court in successive reported precedents, as relevant factors.<br>26. At the end, what is relevant is that the institution is entitled to<br>fix its own fee structure, which may include reasonable revenue<br>surplus for the purpose of development of education and expansion<br>of the institution, as long as it does not entail in profiteering and<br>commercialisation.&nbsp;<br>Pertinently, the provisions of the impugned Act of 2016<br>give authority to the SLFC to override the proposal of the school<br>Management in the matter of school fees to be collected from the<br>wards during the relevant period.&nbsp; Effectively, the parents who are<br>members of the SLFC, would control the decision­making process<br>impacting the autonomy of the school Management<br>The&nbsp; &nbsp;impugned&nbsp; &nbsp;Act&nbsp; &nbsp;of&nbsp; &nbsp;2016&nbsp; &nbsp;also&nbsp; &nbsp;gives&nbsp; &nbsp;wide&nbsp; &nbsp;powers&nbsp; &nbsp;to&nbsp; &nbsp;the<br>Divisional&nbsp; &nbsp;Fee&nbsp; &nbsp;Regulatory&nbsp; &nbsp;Committee8<br>&nbsp; and&nbsp; &nbsp;Revision&nbsp; &nbsp;Committee<br>including power to issue summons, search, seizure and penalties as<br>if&nbsp; &nbsp;the&nbsp; &nbsp;occupation&nbsp; &nbsp;of&nbsp; &nbsp;imparting&nbsp; &nbsp;education&nbsp; &nbsp;is&nbsp; &nbsp;akin&nbsp; &nbsp;to&nbsp; res&nbsp; &nbsp;extra<br>commercium.<br>27. The SLFC is constituted institution or school wise, whereas<br>the&nbsp; &nbsp;DFRC&nbsp; &nbsp;is&nbsp; &nbsp;an&nbsp; &nbsp;independent&nbsp; &nbsp;statutory&nbsp; &nbsp;regulatory&nbsp; &nbsp;authority<br>empowered to enquire into the factum of whether fee structure of<br>the&nbsp; &nbsp;given&nbsp; &nbsp;school&nbsp; &nbsp;determined&nbsp; &nbsp;by&nbsp; &nbsp;its&nbsp; &nbsp;Management&nbsp; &nbsp;entails&nbsp; &nbsp;in<br>profiteering.<br>Section 4 predicates that every private school shall constitute the<br>Parent­Teachers Association<br>30. The composition of the SLFC has been specified in Section 4(2)<br>(a)&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Act&nbsp; &nbsp;of&nbsp; &nbsp;2016.&nbsp; &nbsp; &nbsp;It&nbsp; &nbsp;consists&nbsp; &nbsp;of&nbsp; &nbsp;a&nbsp; &nbsp;Chairperson&nbsp; &nbsp;being<br>representative of management of the private school nominated by<br>such management; Secretary — Principal of the private school (Ex<br>officio); three teachers nominated by the management of private<br>school as to be the members of the SLFC; and five parents from<br>Parent­Teachers&nbsp; &nbsp;Association&nbsp; &nbsp;chosen&nbsp; &nbsp;by&nbsp; &nbsp;a&nbsp; &nbsp;lottery&nbsp; &nbsp;conducted&nbsp; &nbsp;by<br>drawing a lot of willing parents.<br>The SLFC consists of ten members<br>—&nbsp; &nbsp;five&nbsp; &nbsp;are,&nbsp; &nbsp;in&nbsp; &nbsp;a&nbsp; &nbsp;way,&nbsp; &nbsp;representatives&nbsp; &nbsp;or&nbsp; &nbsp;nominees&nbsp; &nbsp;of&nbsp; &nbsp;the<br>Management&nbsp; &nbsp;and&nbsp; &nbsp;five&nbsp; &nbsp;parents&nbsp; &nbsp;from&nbsp; &nbsp;the&nbsp; &nbsp;Parent­Teachers<br>Association.<br>32. Section 6 deals with regulation of fees in private schools and<br>the procedure to be followed for finalisation of the fee structure.<br>33. On&nbsp; &nbsp;bare&nbsp; &nbsp;perusal&nbsp; &nbsp;of&nbsp; &nbsp;this&nbsp; &nbsp;provision,&nbsp; &nbsp;it&nbsp; &nbsp;is&nbsp; &nbsp;noticed&nbsp; &nbsp;that&nbsp; &nbsp;the<br>Management has the prerogative to submit its proposal regarding<br>the fee structure in the given school.&nbsp; That proposal is submitted to<br>the&nbsp; &nbsp;SLFC&nbsp; &nbsp;set&nbsp; &nbsp;up&nbsp; &nbsp;under&nbsp; &nbsp;Section&nbsp; &nbsp;4&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Act&nbsp; &nbsp;of&nbsp; &nbsp;2016.&nbsp; &nbsp; &nbsp;The<br>mechanism provided in Section 6 onwards would primarily apply to<br>private unaided schools.<br>Notably, the SLFC’s decision under Section 6(2) is<br>not binding on the school Management.&nbsp; For, it is open to the school Management to then refer the matter for adjudication to the DFRC<br>constituted under Section 7 of the Act of 2016, who in turn is<br>obliged to decide the reference one way or the other<br>35. To put it differently, the dispensation envisaged under Section<br>6 of the impugned Act of 2016 is not intended to undermine the<br>autonomy of the school Management in the matter of determination<br>of&nbsp; &nbsp;fee&nbsp; &nbsp;structure&nbsp; &nbsp;itself.&nbsp; &nbsp; &nbsp;What&nbsp; &nbsp;it&nbsp; &nbsp;envisages&nbsp; &nbsp;is&nbsp; &nbsp;that&nbsp; &nbsp;the&nbsp; &nbsp;school<br>Management may determine its own fee structure, but may finalise<br>or give effect to the same after interacting with the SLFC.<br>This&nbsp; &nbsp;is&nbsp; &nbsp;merely&nbsp; &nbsp;a&nbsp; &nbsp;consultative&nbsp; &nbsp;process&nbsp; &nbsp;and<br>democratisation of the decision­making process by taking all the<br>stakeholders on board.&nbsp; &nbsp;The SLFC does not sit over the proposal<br>submitted by the school Management as a court of appeal, but only<br>reassures itself as to whether the proposed fee structure entails in<br>profiteering by the school on applying the parameters specified in<br>Section 8 and Rule 10.<br>However,&nbsp; &nbsp;in&nbsp; &nbsp;case&nbsp; &nbsp;the&nbsp; &nbsp;school&nbsp; &nbsp;Management<br>disagrees with the recommendations of the SLFC, it is open to both<br>sides, namely, the school Management as well as the parents of<br>wards to take the matter to the DFRC for adjudication on that<br>aspect.<br>In that<br>sense, the autonomy of the school Management to determine the fee<br>structure&nbsp; &nbsp;itself&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;first&nbsp; &nbsp;place&nbsp; &nbsp;is&nbsp; &nbsp;untrammelled&nbsp; &nbsp;and&nbsp; &nbsp;not<br>undermined in any way<br>So formation of School Level Fee Committees is upheld by the Court at this stage. The court says SLFC does NOT violate rights of the Schools<br>37. Section 7 of the Act of 2016 is about the constitution of the<br>DFRC.<br>From the bare perusal of Section 7(1), it is noticed that first five<br>members are official members.&nbsp; &nbsp;It is a broad­based independent<br>Committee which includes two representatives of private schools in<br>the divisional area “nominated by the Divisional Commissioner” and<br>similarly&nbsp; &nbsp;two&nbsp; &nbsp;representatives&nbsp; &nbsp;of&nbsp; &nbsp;parents&nbsp; &nbsp;“nominated&nbsp; &nbsp;by&nbsp; &nbsp;the<br>Divisional&nbsp; &nbsp;Commissioner”.<br>Thus understood, even Section 7 of the Act of 2016 does not violate<br>the&nbsp; &nbsp;fundamental&nbsp; &nbsp;right&nbsp; &nbsp;guaranteed&nbsp; &nbsp;under&nbsp; &nbsp;Article&nbsp; &nbsp;19(1)(g)&nbsp; &nbsp;of&nbsp; &nbsp;the<br>Constitution in respect of establishment of educational institution.<br>50. The next challenge is to Rule 11 which obligates the private<br>schools to maintain accounts and other records in the manner<br>prescribed thereunder.<br>In our opinion, even this provision by no stretch of imagination<br>would affect the fundamental right of the school Management under<br>Article 19(1)(g) of the Constitution&nbsp; much&nbsp; less to administer the school.&nbsp; &nbsp;This provision, however, is to ensure that a meaningful<br>inquiry&nbsp; &nbsp;can&nbsp; &nbsp;be&nbsp; &nbsp;undertaken&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;SLFC&nbsp; &nbsp;or&nbsp; &nbsp;the&nbsp; &nbsp;Statutory<br>Regulatory­cum­Adjudicatory&nbsp; &nbsp;Authorities&nbsp; &nbsp;in&nbsp; &nbsp;determination&nbsp; &nbsp;of&nbsp; &nbsp;the<br>fact&nbsp; &nbsp;whether&nbsp; &nbsp;the&nbsp; &nbsp;fee&nbsp; &nbsp;structure&nbsp; &nbsp;propounded&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;school<br>Management results in profiteering or otherwise.<br>52. Taking overall view of the matter, therefore, we uphold the<br>conclusion&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;High&nbsp; &nbsp;Court&nbsp; &nbsp;in&nbsp; &nbsp;rejecting&nbsp; &nbsp;the&nbsp; &nbsp;challenge&nbsp; &nbsp;to&nbsp; &nbsp;the<br>validity of the impugned Act of 2016 and Rules framed thereunder.<br>However, we do so by reading down Sections 4, 7 and 10 of the Act<br>54. The&nbsp; &nbsp;order&nbsp; &nbsp;dated&nbsp; &nbsp;09.04.2020&nbsp; &nbsp;was&nbsp; &nbsp;issued&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;Director,<br>Secondary Education, in the wake of COVID­19 pandemic, directing<br>the&nbsp; &nbsp;private&nbsp; &nbsp;schools&nbsp; &nbsp;recognised&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;Primary&nbsp; &nbsp;and&nbsp; &nbsp;Secondary<br>Education Departments to defer collection of school fees for a period<br>of three months<br>61. In this backdrop, the management of private unaided schools<br>in the State of Rajasthan have approached this Court to assail the<br>impugned judgment of the Division Bench of the High Court and<br>also the order dated 28.10.2020 issued by the Director, Secondary<br>Education<br>86. Undeniably, an unprecedented situation has had evolved on<br>account of complete lockdown due to pandemic.<br>A large number of people have lost their<br>jobs and livelihood as aftermath of such economic upheaval.<br>88.....Resultantly, what we need to examine in these<br>appeals is whether order dated 28.10.2020 issued by the Director,<br>Secondary Education can be sustained in law.<br>92..... the direction<br>issued&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;State&nbsp; &nbsp;Government&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;form&nbsp; &nbsp;of&nbsp; &nbsp;order&nbsp; &nbsp;dated<br>28.10.2020 does not satisfy the twin tests of being consistent with<br>the provisions of the Act; and also being necessary or expedient for<br>carrying out the purposes of the Act, as the case may be<br>As a matter of<br>law, the State Government had no power, whatsoever, to interdict<br>the fee structure much less which has been finalised and fixed by<br>the concerned functionaries/authorities under the Act of 2016 itself<br>before expiry of the statutory period as specified.<br>100. Notably,&nbsp; &nbsp;the&nbsp; &nbsp;direction&nbsp; &nbsp;given&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;impugned&nbsp; &nbsp;order&nbsp; &nbsp;to&nbsp; &nbsp;the<br>school Management is to collect only specified percentage of annualtuition fees on the assumption that the schools will not be required<br>to&nbsp; &nbsp;complete&nbsp; &nbsp;the&nbsp; &nbsp;course&nbsp; &nbsp;for&nbsp; &nbsp;the&nbsp; &nbsp;academic&nbsp; &nbsp;year&nbsp; &nbsp;2020­21.&nbsp; &nbsp; &nbsp;This<br>assumption has been rebutted by the appellants by relying on the<br>instructions&nbsp; &nbsp;issued&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;concerned&nbsp; &nbsp;Board&nbsp; &nbsp;indicating&nbsp; &nbsp;to&nbsp; &nbsp;the<br>contrary.<br>In&nbsp; &nbsp;any&nbsp; &nbsp;case,&nbsp; &nbsp;that&nbsp; &nbsp;does&nbsp; &nbsp;not&nbsp; &nbsp;extricate&nbsp; &nbsp;the&nbsp; &nbsp;school<br>Management&nbsp; &nbsp;from&nbsp; &nbsp;incurring&nbsp; &nbsp;recurring&nbsp; &nbsp;capital&nbsp; &nbsp;and&nbsp; &nbsp;revenue<br>expenditure including to pay their academic and non­academic staff<br>their full salary and emoluments for the relevant period.&nbsp; &nbsp;For, no<br>corresponding&nbsp; &nbsp;authority&nbsp; &nbsp;is&nbsp; &nbsp;given&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;school&nbsp; &nbsp;Management&nbsp; &nbsp;to<br>deduct suitable amount from their salaries.&nbsp;&nbsp;<br>Thus, the effect of the<br>impugned order is to reduce school fees determined under the Act<br>in absence of authority to do so including under the Act of 2016.<br>Further, on the face of it, the direction given is inconsistent with the<br>provisions of the stated Act. To put it tersely, the impugned order<br>issued&nbsp; &nbsp;is&nbsp; &nbsp;in&nbsp; &nbsp;respect&nbsp; &nbsp;of&nbsp; &nbsp;matters&nbsp; &nbsp;beyond&nbsp; &nbsp;the&nbsp; &nbsp;power&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;State<br>Government<br>Accordingly,&nbsp; &nbsp;the&nbsp; &nbsp;impugned&nbsp; &nbsp;order&nbsp; &nbsp;dated<br>28.10.2020&nbsp; &nbsp;cannot&nbsp; &nbsp;be&nbsp; &nbsp;sustained&nbsp; &nbsp;even&nbsp; &nbsp;in&nbsp; &nbsp;reference&nbsp; &nbsp;to&nbsp; &nbsp;executive<br>power under Article 162 of the Constitution. there is<br>not&nbsp; &nbsp;even&nbsp; &nbsp;a&nbsp; &nbsp;tittle&nbsp; &nbsp;of&nbsp; &nbsp;indication&nbsp; &nbsp;that&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;name&nbsp; &nbsp;of&nbsp; &nbsp;mitigating<br>measures, the disaster management plan may comprehend issue of<br>direction in respect of economic aspects of legitimate subsisting<br>contracts&nbsp; &nbsp;or&nbsp; &nbsp;transactions&nbsp; &nbsp;between&nbsp; &nbsp;two&nbsp; &nbsp;private&nbsp; &nbsp;individuals&nbsp; &nbsp;with<br>which the State has no direct causal relationship<br>it is not&nbsp; &nbsp;possible&nbsp; &nbsp;to&nbsp; &nbsp;countenance&nbsp; &nbsp;the&nbsp; &nbsp;persuasive&nbsp; &nbsp;argument&nbsp; &nbsp;of&nbsp; &nbsp;the<br>respondents that expansive meaning be assigned to the provisions<br>of the Act of 2005 so as to include power to reduce school fees of<br>private unaided school*<br>110. Having&nbsp; &nbsp;regard&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;purport&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Act&nbsp; &nbsp;of&nbsp; &nbsp;2005,&nbsp; &nbsp;it&nbsp; &nbsp;is<br>unfathomable as to how the State Authorities established under the<br>stated Act can arrogate unto themselves power to issue directions to private&nbsp; &nbsp;parties&nbsp; &nbsp;on&nbsp; &nbsp;economic&nbsp; &nbsp;aspects&nbsp; &nbsp;of&nbsp; &nbsp;legitimate&nbsp; &nbsp;subsisting<br>contractual matters or transactions between them inter se.<br>113. A priori, it must follow that the Director, Secondary Education<br>had no authority whatsoever to issue direction in respect of fee<br>structure determined under the Act of 2016 including to reduce the<br>same for the academic year 2020­21 in respect of private unaided<br>schools.<br>(i) The&nbsp; &nbsp;appellants&nbsp; &nbsp;(school&nbsp; &nbsp;Management&nbsp; &nbsp;of&nbsp; &nbsp;the<br>concerned private unaided school) shall collect annual<br>school fees from their students as fixed under the Act<br>of&nbsp; &nbsp;2016&nbsp; &nbsp;for&nbsp; &nbsp;the&nbsp; &nbsp;academic&nbsp; &nbsp;year&nbsp; &nbsp;2019­20,&nbsp; &nbsp;but&nbsp; &nbsp;by<br>providing deduction of 15 per cent on that amount in<br>lieu of unutilised facilities by the students during the<br>relevant period of academic year 2020­21.<br>(ii) The&nbsp; &nbsp;amount&nbsp; &nbsp;so&nbsp; &nbsp;payable&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;concerned<br>students&nbsp; &nbsp;be&nbsp; &nbsp;paid&nbsp; &nbsp;in&nbsp; &nbsp;six&nbsp; &nbsp;equal&nbsp; &nbsp;monthly&nbsp; &nbsp;instalments<br>before&nbsp; &nbsp;05.08.2021&nbsp; &nbsp;as&nbsp; &nbsp;noted&nbsp; &nbsp;in&nbsp; &nbsp;our&nbsp; &nbsp;order&nbsp; &nbsp;dated<br>08.02.2021.<br>123<br>(iii) Regardless of the above, it will be open to the<br>appellants&nbsp; &nbsp;(concerned&nbsp; &nbsp;schools)&nbsp; &nbsp;to&nbsp; &nbsp;give&nbsp; &nbsp;further<br>concession to their students or to evolve a different<br>pattern&nbsp; &nbsp;for&nbsp; &nbsp;giving&nbsp; &nbsp;concession&nbsp; &nbsp;over&nbsp; and&nbsp; &nbsp;above&nbsp; &nbsp;those<br>noted in clauses (i) and (ii) above.<br>(iv) The&nbsp; &nbsp;school&nbsp; &nbsp;Management&nbsp; &nbsp;shall&nbsp; &nbsp;not&nbsp; &nbsp;debar&nbsp; &nbsp;any<br>student&nbsp; &nbsp;from&nbsp; attending&nbsp; &nbsp;either&nbsp; &nbsp;online&nbsp; &nbsp;classes&nbsp; &nbsp;or<br>physical classes on account of non­payment of fees,<br>arrears/outstanding&nbsp; &nbsp;fees&nbsp; &nbsp;including&nbsp; &nbsp;the&nbsp; &nbsp;installments,<br>referred to above, and shall not withhold the results of<br>the examinations of any student on that account.<br>(v) If&nbsp; &nbsp;any&nbsp; &nbsp;individual&nbsp; &nbsp;request&nbsp; &nbsp;is&nbsp; &nbsp;made&nbsp; &nbsp;by&nbsp; &nbsp;the<br>parent/ward finding it difficult to remit annual fees for<br>the academic year 2020­21 in the above terms, the<br>school Management to consider such representation<br>on case­to­case basis sympathetically.<br>(vi) The above arrangement will not affect collection<br>of fees for the academic year 2021­22, as is payable by<br>124<br>the students of the concerned school as and when it<br>becomes due and payable.<br>(vii) The school Management shall not withhold the<br>name of any student/candidate for the ensuing Board<br>examinations for Classes X and XII on the ground of<br>non­payment&nbsp; &nbsp;of&nbsp; &nbsp;fee/arrears&nbsp; &nbsp;for&nbsp; &nbsp;the&nbsp; &nbsp;academic&nbsp; &nbsp;year<br>2020­21,&nbsp; &nbsp;if&nbsp; &nbsp;any,&nbsp; &nbsp;on&nbsp; &nbsp;obtaining&nbsp; &nbsp;undertaking&nbsp; &nbsp;of&nbsp; &nbsp;the<br>concerned parents/students<br><br><br><br><br><br><br><br><br><br><br><br></h4><p><br></p>', '3090e1baf3124b718e78bd08abdfc860.png', 'b16ceccf051d032d1e19e7d9f75c13e8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-03', 1, '', '', '2021-05-04 04:34:11', '2021-05-04 04:34:11');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(729, 'huQ69rIl4plqf8MDGxm7wXvwi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land Acquisition Act, 1894. Market value. Amount awarded under consent award in respect of similarly situated land acquired for similar purpose can be treated to be the base price. Karnataka High Court. 12 April 2021', '<h4><h4><span style=\"font-size: 21.3333px;\">Bangalore Metro Rail Corporation Limited vs B.A.Indiramma and another.<br></span><span style=\"font-size: 21.3333px;\">Miscellaneous First Appeal 6082 of 2019 and connected matters decided on 12 April 2021.<br></span><span style=\"font-size: 21.3333px;\">Justice Alok Aradhe and Justice M.G.S. Kamal.<br></span><span style=\"font-size: 21.3333px;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380289/1/MFA6082-19-12-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380289/1/MFA6082-19-12-04-2021.pdf</a><br></span><span style=\"font-size: 21.3333px;\"><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 18. Before proceeding further, it is apt to refer to well settled principles with regard to determination of market value. One of the well recognized mode of determination of the market value of the land is the willingness of an informed buyer to offer the price therefor and market value is ordinarily the price, the property may fetch in open market if sold by a willing seller unaffected by a special needs of a particular purchase. The amount of compensation cannot be ascertained with mathematical accuracy and a&nbsp;</span><span style=\"font-size: 21.3333px;\">comparable instance has to be identified having regard to proximity from time angle as well as proximity from situation angle.</span></h4><h4><span style=\"font-size: 21.3333px;\">19. In dealing with principles of assessment of compensation under the Act in NELSON FERNANDES AND ORS.&nbsp; VS.&nbsp; SPECIAL&nbsp; LAND&nbsp; ACQUISITION&nbsp; OFFICER, SOUTH GOA AND&nbsp; ORS.\',&nbsp; (2007)&nbsp; 9&nbsp; SCC&nbsp; 447, it has been held that purpose for which the land is acquired must also be taken into consideration while assessing the question of compensation. It has been further been held that where the purpose of acquisition is laying down a railway line, the question of deduction of development charges does not arise. It has further been held that market value of the land must relate to compensation awardable for such a land under Section 23(1) of the Act. The market value of the land cannot be its value with reference to actual use to which land is put on the date of Notification but with reference to the better use to which it is reasonably capable of being put in immediate or near future. An acquired land can be regarded as that which has a building potentiality, if such land although was used on the relevant date under&nbsp;</span><span style=\"font-size: 21.3333px;\">Section 4(1) of the Act for agricultural purpose. [Also See: \'R.RAM REDDY AND ORS. VS. LAND ACQUISITION OFFICER HYDERABAD URBAN DEVELOPMENT AUTHORITY, HYDERABAD&nbsp; AND ORS. (1995) 2 SCC 305, \'AVINASH DHAVAJI NAIK&nbsp;</span><span style=\"font-size: 21.3333px;\">VS. STATE OF MAHARASHTRA\', (2009) 11 SCC 171 and \'LAND ACQUISITION OFFICER VS. KARIGOWDA\', (2010) 5 SCC 708].</span><span style=\"font-size: 21.3333px;\"><br></span><span style=\"font-size: 21.3333px;\">28. This brings us to the question of market value of the land. The market value of land has to be assessed on the date of preliminary Notification. From the evidence on record, we find that Ex.P21 &amp; Ex.P22 are relevant documentary evidence, which is closest in point of time to the preliminary Notification. The Reference Court erred in placing reliance solely on the bid of M/s Prestige Gardens Estates Private Limited and in making&nbsp;</span><span style=\"font-size: 21.3333px;\">it the basis for determining the market value of the land in question. It ought to have been appreciated that aforesaid price was offered in 2005 and thereafter admittedly there has been escalation in the prices of lands. The proposition that the base price of the land has to be ascertained close to the date of preliminary Notification with reference to evidence on record cannot be disputed. In the instant case, Ex.P21 and Ex.P22 are the agreements dated 07.05.2008 and 17.05.2008 in respect of adjoining land acquired for Bangalore metro rail project, between owner of land and KIADB and on the basis of aforesaid agreements admittedly, consent awards were passed, which was accepted by Corporation.<br></span><span style=\"font-size: 21.3333px; background-color: rgb(255, 255, 0);\"><b>29. The land acquisition proceedings were initiated in pursuance of preliminary Notification dated 17.01.2006, which led to consent award and the compensation with consent of the parties was determined at Rs.15,94,10,977/-. Thus, the aforesaid&nbsp;</b></span><span style=\"font-size: 21.3333px;\"><b style=\"background-color: rgb(255, 255, 0);\">market value binds the Corporation as the land was required for the purposes of Bangalore Metro Rail Project and in the year 2006, the Corporation had agreed to pay compensation in respect of the land, which was similarly situate and was acquired for a similar purpose at the rate of Rs.15,94,10,977/-. Thus, the aforesaid price can safely be treated to be the base price.</b> [See:\'RAMAN BHAI&nbsp; &nbsp;PATEL&nbsp; &nbsp;VS.&nbsp; &nbsp;STATE&nbsp; &nbsp;OF&nbsp; &nbsp;GUJARAT\',&nbsp; &nbsp;(2018) 12&nbsp;</span><span style=\"font-size: 21.3333px;\">SCC 79)].The Supreme Court by an order dated 25.09.2008, in Civil Appeal No.6061-6063/2008 has taken note of the fact that from November 2005 to March 2008, the prices of land are escalated. The land in question has potentiality for commercial use, therefore, safely escalation at the rate of 12% each year i.e., for the year 2007 and 2008 can be awarded on the aforesaid amount in view of law laid down in \'KASHMIR SINGH VS. STATE OF HARYANA\', (2014)&nbsp; 2 SCC 165&nbsp; and&nbsp; &nbsp;\'MANOJ&nbsp; &nbsp;KUMAR&nbsp; &nbsp;AND&nbsp; &nbsp;OTHERS&nbsp; &nbsp;VS.&nbsp; &nbsp;STATE OF&nbsp;</span><span style=\"font-size: 21.3333px;\">HARYANA\', (2018) 13 SCC 96.&nbsp; &nbsp;Thus, the market&nbsp;</span><span style=\"font-size: 21.3333px;\">value of the land is assessed as Rs.19,99,65,129/- on the date of issuance of the preliminary Notification i.e., 18.07.2008. In the facts of the case, though the entire land has been utilized for parking of the metro rail project yet the Corporation must have been required to incur expenses for making it suitable for parking purposes i.e., by raising sheds for parking. Therefore, in the state of evidence on record, we are of the considered opinion that 15% deduction from the amount of compensation towards development charges seems to be just and proper in the peculiar facts of the case.<br></span><span style=\"font-size: 21.3333px;\">T</span></h4></h4>', '976855905500da2f502f06c56f317ce7.PNG', '2cebaa68b0abb7bd8f6ffc8c7e56fd4a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-12', 1, '', '', '2021-05-04 21:12:28', '2021-05-04 21:12:28'),
(730, 'ntq4xWsr6ayHVjQ3yGfoyGWuL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Encroachment of footpaths in anyway including by parking of vehicles amounts to violation of fundamental right guaranteed under Article 21 of the Constitution of India. Karnataka High Court issues directions to maintain footpaths. 21 April 2021. ', '<h4>D.S.Ramachandra Reddy vs The Commissioner of Police and others. </h4><h4>Writ Petition 13736 of 2019 (PIL) decided on 21 April 2021. </h4><h4>Judgement Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380763/1/WP13736-19-21-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380763/1/WP13736-19-21-04-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 2.The petitioner who is a member of the Bar has filed this public interest litigation inviting the attention of the Court to the encroachments made on foot paths/ footways in a particular location in the city. The second prayer is for making  a particular street for one-way street and the third prayer is for ensuring that all road signals are erected. There are compliance reports filed on record. In fact, as per the order dated 18th January 2021 passed by this Court, the Member Secretary of the District Legal Services Authority, Bengaluru, visited the street subject matter of this petition and has submitted a report dated 1st February 2021 along with the photographs. We must note here that in the affidavit filed by  the petitioner on 25th March 2021, he has stated that positive actions have been taken by the authorities. He has expressed an apprehension that with the passage of time and after change of present set of officers, their successors may not take any action.</h4><h4>6....Hence, apart from the statutory right created in favour of the citizens under the Municipal laws due to corresponding obligation to maintain the streets and footways in a reasonable condition, this Court has held that a right to have streets including footways in a good and reasonable condition willhave to be held as an essential part of the fundamental rights conferred on the citizens under Article 21 of the Constitution of India. Thus, it follows that if the footways or public streets are encroached upon in any manner including by parking of vehicles, it will amount to violation of fundamental rights guaranteed under Article 21 of the Constitution of India as held by this Court. It is in this context that the provisions of various laws will have to be considered. There are two aspects of the matter. The first aspect is that apart from the fundamental right of the citizens, there are statutory provisions dealing with footpaths or footways and parking of vehicles. The issue of indiscriminate parking on footways is also involved in this petition. The second aspect will be enforcement of the provisions of law by setting the criminal law in motion.<br>....Thus, there is a complete prohibition on parking a vehicle at a place where the road is narrow or the view is  obstructed. There is a complete prohibition on parking a vehicle on footpaths and cycle tracks. Clause (k) provides that a vehicle shall not be parked away from the edge of the foot path. This provision is obviously made to ensure that the use of adjacent public street should continue to remain unaffected by the parking. Clause (m) prohibits of parking of vehicles in such a manner that other vehicles will be obstructed or inconvenience will be caused to any person. Thus, not only on footpaths/footways, but there is a prohibition on parking of vehicles in such a manner that it will obstruct the other vehicles or cause inconvenience to any person. All this will have to be appreciated in the light of definition of \'parking\' under clause (j) of Regulation 2 of the said Regulations of 2017 which reads thus:<br>18. However, the laws relating to footways and public streets are rarely effectively implemented. At this stage, we make a reference to the decision of the Apex Court in the case of Ahmedabad Municipal Corporation vs Nawab Khan Gulab Khan and others (1997)11 SCC 121.  In paragraph 8 of the said decision, the Apex Court has held thus.</h4><h4 style=\"margin-left: 25px;\">\"8. It is for the court to decide in exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by procedure which is reasonable, fair and just or it is otherwise. Footpath, street or pavement are public property which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public roads. The main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with a reasonable measure of safety and security. That facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements. The claim of the pavement- dwellers to construct huts on the pavement or road is a permanent obstruction to free passage of traffic and pedestrians\' safety and security. Therefore, it would be impermissible to permit or to make use of the pavement for private purpose. They should allow passing and repassing by the pedestrians. No one has a right to make use of  a public property for their private purpose without the requisite authorisation from the competent authority. It would, therefore, be but the duty of the competent authority to remove encroachments on the pavement or footpath of the public street obstructing free flow of traffic or passing or repassing by the pedestrians.\"</h4><h4 style=\"\">19. In paragraph 22 of the said decision, the Apex Court has made the following observations:</h4><h4 style=\"margin-left: 25px;\">\"22. Empirical study of urban and rural population in India discloses that due to lack of civic facilities and means of livelihood people from rural areas constantly keep migrating to the urban areas resulting in mushroom growth of slums and encroachment of the pavements/footpaths etc. Every Municipal Corporation has statutory obligation to provide free flow of traffic and pedestrians\' right to pass and re-pass freely and safely; as its<span style=\"white-space:pre\">	</span>concomitance,<span style=\"white-space:pre\">	</span>the Corporation/Municipality have statutory duty to have the encroachments removed. It would, therefore, be inexpedient to give any direction not to remove, or to allow the encroachments on the pavements or footpaths which is a constant source of unhygienic ecology, traffic hazards and risk- prone to lives of the pedestrians. It would, therefore, be necessary to permit the Corporation to exercise the statutory powers to prevent encroachment of the pavements/footpaths and to prevent construction thereon. As held earlier, the Corporation should always be vigilant and should not allow encroachments of the pavements and foot paths. As soon as they notice any encroachments they should forthwith take steps to have them removed and would not allowed them to settle down for a long time. It is stated in their affidavit that they are giving 21 days\' notice before taking action for ejectment of the encroachers. That procedure, in our view, is a fair procedure and, therefore, the right to hearing before taking action for ejectment is not necessary in the fact- situation. But the Commissioner should ensure that everyone is served and if it is not possible for reasons to be recorded in the file, through fixture of the notice on the hutment, duly attested by two independent panchas. This procedure would avoid the dispute that they were not give opportunity; further prolongation of the encroachment and hazard to the traffic and safety of the pedestrians.\"<br></h4><h4 style=\"\">22. We, therefore, pass the following order:<br></h4><h4 style=\"margin-left: 25px;\">(i) We hold that it is the duty of the respondents to ensure that the footways and public streets are kept free of obstructions including illegal parking thereon. It is also their responsibility to ensure that violations of the aforesaid provisions of law are not taken casually and criminal law is promptly set in motion;<br>(ii) We direct the State Government and the traffic Police Department to make effective implementation of the provisions contained in Sections 117, 122, 127, 177A and 201 of the Motor Vehicles Act, 1988 on a complaint made by a citizen or otherwise. If any violation of the said provisions is made, apart from taking action of removal of illegally stopped, parked or abandoned vehicles on footways, criminal law must be set in motion immediately;<br>(iii) The respondents shall ensure strict implementation of the provisions of the said Act of 1960 and the said Rules of 1979. As noted earlier,  the said Act of 1960 contains penal provisions for violation. Therefore, the relevant provisions of the said Act of 1960 and the said Rules of 1979 shall be scrupulously followed.<br>(iv) We direct the respondents to strictly implement the prohibitions noted above under both the Regulations framed in exercise of the powers under Section 118 of the M.V. Act. It is the duty of the State Government and its agencies and instrumentalities to ensure that the aforesaid relevant provisions under the M.V. Act, the said Act of 1960, the rules framed under the said Act of 1960 as well as the Regulations framed under Section 118 of the M.V. Act concerning footways are strictly implemented. They shall ensure that criminal law is promptly set in motion against the offenders and violators;<br>(v) We direct the State Government as well as the BBMP to issue directions to its officers for the purpose of implementation of the above directions within a period of six weeks from today;<br>(vi) We may also note here that non- implementation of the aforesaid provisions which we have discussed in the body of the judgment may even amount to violation of right to life guaranteed to the citizens under Article 21 of the Constitution of India;<br>(vii) The petition is disposed of in the above terms;<br>(viii)<span style=\"white-space:pre\">	</span>However, for reporting compliance by both the BBMP and the State Government, the petition shall be listed on 21st June 2021;<br>(ix) Compliance shall be reported by 17th June 2021;<br>(x) The pending interlocutory application does not survive and is accordingly disposed of.<br><br><br></h4>', 'd753c6cc8131a3480045883ddbe14fe0.PNG', 'e16d8a38572ad379f2016d96f9ac0b50.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-21', 1, '', '', '2021-05-05 02:36:56', '2021-05-05 02:39:01'),
(731, 'AVmz1fzlAyVXUkr5Nbxwrnli8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constitution of India. Article 162. In exercise of the executive power, Government cannot go against the provisions of the Constitution or any law. Supreme Court reiterates. 3 May 2021', '<h4>Indian School Jodhpur and another vs State of Rajasthan and others.<br>Civil Appeal 1724 of 2021 decided on 3 May 2021.<br>Justice A.M. Khanwilkar and Justice Dinesh Maheshwari<br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/38328/38328_2019_34_1501_27945_Judgement_03-May-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/38328/38328_2019_34_1501_27945_Judgement_03-May-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: In these appeals, the challenge is to the<br>orders passed by the State Authorities on 09.04.2020, 07.07.2020 and 28.10.2020 regarding deferment of collection of school fees including reduction of fees limited to 70 per cent of tuition fees by schools affiliated with the Central Board of Secondary Education and 60 per cent from the schools affiliated with Rajasthan Board of Secondary   Education,   in   view   of   reduction   of   syllabus   by the respective¬Boards due to aftermath of pandemic (lockdown) from March 2020.<br>94. A fortiori, even the argument of the respondents relying upon the   existence   of   executive   power   under   Article   162   of   the Constitution, ought to fail.  It is well¬established position that the executive power of a State under Article 162 of the Constitution extends to the matters upon which the legislature of the State has competency to legislate and is not confined to matters over which legislation has already been passed. <b style=\"background-color: rgb(255, 255, 0);\"> It is also well¬settled that the State   Government   cannot   go   against   the   provisions   of   the Constitution   or   any   law. </b>   The   subject   of   determination   of   fee structure and whether it entails in profiteering, is already covered by the legislation in the form of the Act of 2016 and the Rules framed thereunder.  It is not as if there is no enactment covering that subject or any incidental aspects thereof.   The Act of 2016, which in itself is a self-contained code on the said subject, not only provides for the manner in which the concerned school ought to finalise its fee structure, but also declares that the fee so finalised either by consensus or through adjudication mode shall be binding on all concerned for a period of three academic years.  In any case, determination of fees including reduction thereof is the exclusive prerogative of the management of the private unaided school.  The State can provide independent mechanism only to regulate that decision of the school Management to the extent that it does not result in profiteering and commercialisation.<br></h4><p><br></p>', '6c413c01140d2aa7dee49eeedab7ce33.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-03', 1, '', '', '2021-05-05 03:42:11', '2021-05-05 03:46:10'),
(732, 'WovL0omJO8huUDnStPReQZOnL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Disaster Management Act, 2005. Government has no power under the Act to issue directions to private parties on economic aspects of legitimate subsisting contractual mattes or transactions between them inter se. Supreme Court. 3 May 2021', '<h4>Indian School Jodhpur and another vs State of Rajasthan and others.<br>Civil Appeal 1724 of 2021 decided on 3 May 2021.<br>Justice A.M. Khanwilkar and Justice Dinesh Maheshwari<br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/38328/38328_2019_34_1501_27945_Judgement_03-May-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/38328/38328_2019_34_1501_27945_Judgement_03-May-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraph</span>s:&nbsp;&nbsp;104. As is noticed from the preamble of the Disaster Management Act, 2005, it is to provide for the effective management of disasters and for matters connected therewith or incidental thereto.&nbsp; It extends to the whole of India.&nbsp; The Act is to establish Statutory Committees at different level for carrying out the purposes for which the Act has been enacted.&nbsp; It is essentially for effective management of disasters and for&nbsp; &nbsp;matters&nbsp; &nbsp;connected&nbsp; &nbsp;therewith&nbsp; &nbsp;or&nbsp; &nbsp;incidental&nbsp; &nbsp;thereto.<br><b style=\"background-color: rgb(255, 255, 0);\">110. Having&nbsp; &nbsp;regard&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;purport of the Act of 2005, it is unfathomable as to how the State Authorities established under the stated Act can arrogate unto themselves power to issue directions to private parties on economic aspects of legitimate subsisting contractual matters or transactions between them inter se.</b>&nbsp; In any case, the impugned order has not been issued by the State Authority referred to in the Act of 2005.&nbsp; It is not enough to say that the same was issued under the directions of the Chief Minister of the State.&nbsp; For, the Chief Minister is only the Chairperson (Ex officio) of&nbsp; &nbsp;the&nbsp; &nbsp;State&nbsp; &nbsp;Disaster&nbsp; &nbsp;Management&nbsp; &nbsp;Authority&nbsp; &nbsp;established under Section 14 of the Act of 2005.&nbsp; Suffice it to observe that there is no provision in the Act of 2005 which concerns or governs the subject of interdicting the school fee structure fixed under the Act of 2016. The measures enunciated in Section 4 of the Act of 2020 in no way deal&nbsp; &nbsp;with&nbsp; &nbsp;the&nbsp; &nbsp;“tariffs”&nbsp; &nbsp;of&nbsp; &nbsp;air,&nbsp; &nbsp;rail,&nbsp; &nbsp;road,&nbsp; &nbsp;hospital,&nbsp; &nbsp;temporary accommodation.&nbsp; It only enables the Authority to prohibit any usage or activities which the Government considers sufficient to spread or transmit epidemic diseases and for that purpose to inspect various places suspected of being infected with such diseases.&nbsp; &nbsp;Indeed, it can regulate or restrict the functioning of offices, Government and private and educational institutions in the State.&nbsp; &nbsp;That, however, would be only in&nbsp; respect&nbsp; of&nbsp; manner of&nbsp; its use and its timings including to observe standard operating procedures to ensure that epidemic diseases do not transmit or spread on account of activities carried out therein.&nbsp; That power to regulate cannot be invoked to control&nbsp; &nbsp;the&nbsp; &nbsp;tariffs,&nbsp; &nbsp;fees&nbsp; &nbsp;or&nbsp; &nbsp;cost&nbsp; &nbsp;of&nbsp; &nbsp;goods&nbsp; &nbsp;and&nbsp; &nbsp;services&nbsp; &nbsp;and&nbsp; &nbsp;in particular economic aspects of contractual matters between two private parties or so to say school fees of private unaided schools. Accordingly, even the last point urged by the State to justify the impugned order dated 28.10.2020 falls to the ground.</h4><div><br></div>', '056f5e42c90bf0b1f18ee4be45ab3e33.PNG', 'cadd545dd1b61c87c1325fc3e244a5f4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-03', 1, '', '', '2021-05-05 04:12:37', '2021-05-05 04:12:37'),
(733, 'FTtb7FD1UH6DXpowVYBsGswFz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constitution of India. Article 254. Repugnancy. The primary effort in the exercise of judicial review must be an endeavor to harmonize. Supreme Court exhaustively analyses the test. 4 May 2021   ', '<h4>Forum for People’s Collective Efforts (FPCE) &amp; Anr. vs&nbsp;The State of West Bengal &amp; Anr. </h4><h4>Writ Petition (C) No. 116 of 2019 decided on 4 May 2021. Justice Dr Dhananjaya Y Chandrachud and Justice M R Shah. </h4><h4>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2019/2356/2356_2019_35_1501_27914_Judgement_04-May-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/2356/2356_2019_35_1501_27914_Judgement_04-May-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: (III) Article 254 of the Constitution and repugnancy Repugnancy of a statute enacted by the state legislature with a central statute on a subject in the concurrent list may arise in any one or more of the following modes: First, there may be an inconsistency or conflict in the actual terms of competing statutes; second, though there is no direct conflict between a State and Central statute, the latter may be intended to be an exhaustive code in which event it occupies the whole field, excluding the operation of the state law on the subject in the concurrent list; and third, even in the absence of an actual conflict, repugnancy may arise when both the State and Central statutes seek to exercise power over the same subject matter.&nbsp; H.2 The Constitutional Scheme of Article 254 and repugnancy<br>27 The distribution of legislative powers in Part XI of the Constitution envisages that Parliamentary legislation extends to the entire territory of India or its part while state legislation extends law to the whole or any part of a state. Under Article 24617, the legislative power to make laws “with respect to” any of the matters enumerated in List I of the Seventh Schedule – the Union List – is entrusted to Parliament. Clause (1) of Article 246 which embodies this principle is prefaced with a nonobstante provision which gives it precedence over clauses (2) and (3). Article 246 (2) enunciates the principles governing the exercise of legislative power “to make laws with respect to any of the matters enumerated in List III of the Seventh Schedule, the Concurrent List. Clause (2) begins with a non-obstante provision which gives it precedence over Clause (3). Clause (2) embodies the principle that Parliament and (subject to clause (1)) the legislature of any State have the power to make laws with respect to any of the matters in List III. Clause 3 stipulates that the legislature of any State has the exclusive power to make laws for the State or any part of it “with respect to any of the matters enumerated in List II”, the State List. Some of the salient features of Article 246 need to be noticed.&nbsp; 28 Parliament, under Article 248, has been entrusted with the residuary powers of legislation (subject to Article 246A) to make any law with respect to any matter which is not enumerated in the Concurrent or State Lists. The 101st Amendment to the Constitution, which came into force from 16 September 2016, inserted Article 246A18 to make a special provision with respect to the goods and services tax. Article 246A begins with a non-obstante provision, giving it overriding force over Articles 246 and 254. Under clause (1), Parliament and, subject to clause (2), the legislature of a State has the power to make laws with respect to goods and services tax imposed by the Union or by the State. Under clause (2), Parliament has been entrusted with the exclusive power to make laws with respect to goods and services tax where the supply of goods, services or both takes place in the course of interstate trade and commerce.&nbsp; 29 Article 25419 contains provisions for inconsistencies between laws made by Parliament and by the legislatures of the States. Clause (1) of Article 254 stipulates that where a State law “is repugnant” to a Parliamentary law which Parliament is competent to enact or to a provision of an existing law “with respect to one of the matters enumerated in the Concurrent List”, then the law made by Parliament is to prevail and the law made by the legislature of a State shall “to the extent of the repugnancy” be void. The provisions of clause (1) are subject to clause (2). Clause (1) also provides that in the event of a repugnancy between a law enacted by the State legislature with a provision of a law made by Parliament which it is competent to enact or to a provision of an existing law with respect to a matter enumerated in the Concurrent List, the law enacted by Parliament is to prevail whether it was enacted before or after the State law or, as the case may be, the existing law. Clause (1) of Article 254 is however made subject to clause (2) which envisages that if a State law on a matter enumerated in the Concurrent List contains a provision which is repugnant to an earlier law of Parliament or an existing law with respect to the subject matter, the law made by the legislature of the State will prevail in the State if it is has been reserved for the consideration of the President and has received such assent. Despite the grant of Presidential assent, the Parliament is not precluded from enacting any law with respect to the same matter in future including a law adding to, amending, varying or repealing the law made by the legislature of the State.&nbsp;<br>30 Some of the salient features of Article 254 may be noticed at this stage:<br>(i) Firstly, Article 254(1) embodies the concept of repugnancy on subjects within the Concurrent List on which both the State legislatures and Parliament are entrusted with the power to enact laws;<br>(ii) Secondly, a law made by the legislature of a State which is repugnant to Parliamentary legislation on a matter enumerated in the Concurrent List has to yield to a Parliamentary law whether enacted before or after the law made by the State legislature;<br>(iii) Thirdly, in the event of a repugnancy, the Parliamentary legislation shall prevail and the State law shall “to the extent of the repugnancy” be void;<br>(iv) Fourthly, the consequence of a repugnancy between the State legislation with a law enacted by Parliament within the ambit of List III can be cured if the State legislation receives the assent of the President; and<br>(v) Fifthly, the grant of Presidential assent under clause (2) of Article 254 will not preclude Parliament from enacting a law on the subject matter, as stipulated in the proviso to clause (2).&nbsp;<br><span style=\"background-color: rgb(255, 255, 0);\">Case laws referred</span>: Zaverbhai Amaldas vs State of Bombay (1955) 1 SCR 799<br>O P Stewart vs B K Roy AIR 1939 Cal 628<br>Deep Chand vs State of UP (1959) Supp (2) SCR 8<br>State of Orissa vs M/s M A Tulloch (1964) 4 SCR 461&nbsp;<br>M Karunanidhi vs Union of India (1979) 3 SCC 431<br>Hoechst Pharmaceuticals Ltd. vs State of Bihar (1983) 4 SCC 45<br>State of Kerala vs Mar Appraem Kuri Company Ltd (2012) 7 SCC 106<br>Innoventive Industries Ltd. vs ICICI Bank (2018) 1 SCC 407<br>40....The doctrine of repugnancy under Article 254(1) operates within the fold of the Concurrent List. Clause (1) of Article 254 envisages that the law enacted by Parliament will prevail and the law made by the legislature of the State shall be void “to the extent of repugnancy”. Clause (1) does not define what is meant by repugnancy. The initial words of Clause (1) indicate that the provision deals with a repugnancy between a law enacted by the State legislature with: (i) A provision of a law made by Parliament which it is competent to enact; or (ii) To any provision of an existing law; and (iii) with respect to one of the matters enumerated in the Concurrent List.<br>41....The decisions of this Court essentially contemplate three types of repugnancy:<br>(i) The first envisages a situation of an absolute or irreconcilable conflict or inconsistency between a provision contained in a State legislative enactment with a Parliamentary law with reference to a matter in the Concurrent List. Such a conflict brings both the statutes into a state of direct collision. This may arise, for instance, where the two statutes adopt norms or standards of behavior or provide consequences for breach which stand opposed in direct and immediate terms. The conflict arises because it is impossible to comply with one of the two statutes without disobeying the other;<br>(ii) The second situation involving a conflict between State and Central legislations may arise in a situation where Parliament has evinced an intent to occupy the whole field. The notion of occupying a field emerges when a Parliamentary legislation is so complete and exhaustive as a Code as to preclude the existence of any other legislation by the State. The State law in this context has to give way to a Parliamentary enactment not because of an actual conflict with the absolute terms of a Parliamentary law but because the nature of the legislation enacted by Parliament is such as to constitute a complete and exhaustive Code on the subject; and<br>(iii) The third test of repugnancy is where the law enacted by Parliament and by the State legislature regulate the same subject. In such a case the repugnancy does not arise because of a conflict between the fields covered by the two enactments but because the subject which is sought to be covered by the State legislation is identical to and overlaps with the Central legislation on the subject.&nbsp;<br>42 The distinction between the first test on the one hand with the second and third tests on the other lies in the fact that the first is grounded in an irreconcilable conflict between the provisions of the two statutes each of which operates in the Concurrent List. The conflict between the two statutes gives rise to a repugnancy, the consequence of which is that the State legislation will be void to the extent of the repugnancy. The expression ‘to the extent of the repugnancy’ postulates that those elements or portions of the state law which run into conflict with the central legislation shall be excised on the ground that they are void. The second and third tests, on the other hand, are not grounded in a conflict borne out of a comparative evaluation of the text of the two provisions. Where a law enacted by Parliament is an exhaustive Code, the second test may come into being. The intent of Parliament in enacting an exhaustive Code on a subject in the Concurrent List may well be to promote uniformity and standardization of its legislative scheme as a matter of public interest. Parliament in a given case may intend to secure the protection of vital interests which require a uniformity of law and a consistency of its application all over the country. A uniform national legislation is considered necessary by<br>Parliament in many cases to prevent vulnerabilities of a segment of society being exploited by an asymmetry of information and unequal power in a societal context. The exhaustive nature of the Parliamentary code is then an indicator of the exercise of the State’s power to legislate being repugnant on the same subject. The third test of repugnancy may arise where both the Parliament and the State legislation cover the same subject matter. Allowing the exercise of power over the same subject matter would trigger the application of the concept of repugnancy. This may implicate the doctrine of implied repeal in that the State legislation cannot co-exist with a legislation enacted by Parliament. But even here if the legislation by the State covers distinct subject matters, no repugnancy would exist. In deciding whether a case of repugnancy arises on the application of the second and third tests, both the text and the context of the Parliamentary legislation have to be borne in mind. The nature of the subject matter which is legislated upon, the purpose of the legislation, the rights which are sought to be protected, the legislative history and the nature and ambit of the statutory provisions are among the factors that provide guidance in the exercise of judicial review. The text of the statute would indicate whether Parliament contemplated the existence of State legislation on the subject within the ambit of the Concurrent List. Often times, a legislative draftsperson may utilize either of both of two legislative techniques. The draftsperson may provide that the Parliamentary law shall have overriding force and effect notwithstanding anything to the contrary contained in any other law for the time being in force. Such a provision is indicative of a Parliamentary intent to override anything inconsistent or in conflict with its provisions. The Parliamentary legislation may also stipulate that its provisions are in addition to and not in derogation of other laws. Those other laws may be specifically referred to by name, in which event this is an indication that the operation of those specifically named laws is not to be affected. Such a legislative device is often adopted by Parliament by saving the operation of other Parliamentary legislation which is specifically named. When such a provision is utilized, it is an indicator of Parliament intending to allow the specific legislation which is enlisted or enumerated to exist unaffected by a subsequent law. Alternatively, Parliament may provide that its legislation shall be in addition to and not in derogation of other laws or of remedies, without specifically elucidating specifically any other legislation. In such cases where the competent legislation has been enacted by the same legislature, techniques such as a harmonious construction can be resorted to in order to ensure that the operation of both the statutes can co-exist. Where, however, the competing statutes are not of the same legislature, it then becomes necessary to apply the concept of repugnancy, bearing in mind the intent of Parliament. The primary effort in the exercise of judicial review must be an endeavour to harmonise. Repugnancy in other words is not an option of first choice but something which can be drawn where a clear case based on the application of one of the three tests arises for determination.<br><br><br><br></h4>', '942035b8579312ab6efe9f33ddec9b64.PNG', 'ba9f677484ddc31fe27c87058bb23137.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-04', 1, '', '', '2021-05-05 06:12:16', '2021-05-05 06:12:16');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(734, 'gSAIPVnSabl0SZqtoYw2EtTWX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SC/ST Prevention of Atrocities Act, 1989. High Court can NOT entertain bail petition under Section 438 & 439 Cr.P.C. Remedy against grant or refusal of bail by the Special Court is appeal to High Court under Section 14A. Karnataka High Court. 30:3:2021', '<h4>Lokesh and others vs The State of Karnataka and another. </h4><h4>Criminal Appeal 10781 of 2020 decided on 30 March 2021. </h4><h4>Chief Justice Abhay S Oka and Justice Suraj Govindaraj. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380753/1/CRLA1078-20-30-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380753/1/CRLA1078-20-30-03-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: By an order dated 15th December, 2020, after noticing  the conflict of views expressed by two learned Single Judges of this Court, the learned Single Judge referred following question to a larger Bench:</h4><h4 style=\"margin-left: 25px;\">\"Whether a criminal petition or an appeal is maintainable against an order of a Special Court  or the exclusive Special Court granting or refusing bail?\"</h4><h4>This question has been framed in the context of sub- section (2) of Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, \"the SC and ST Act\"). We are reframing the questions for consideration as under:</h4><h4 style=\"margin-left: 25px;\">(i) Whether an appeal is maintainable under sub- section (2) of Section 14A of the SC an ST Act against an order granting or refusing to grant bail?<br>(ii) If the answer to the first question is in the affirmative, whether the jurisdiction of the High Court under Section 438 and 439 of the Code of Criminal Procedure, 1973 (for short, \"Cr.P.C\") is taken away by virtue of sub-section (2) of Section 14A of the SC and ST Act? </h4><h4 style=\"\">6.We have carefully considered the submissions.  It is necessary to make a reference to Section  14-A of  the SC and ST Act which reads thus:</h4><h4 style=\"margin-left: 25px;\">\"14A. Appeals—(1) Notwithstanding anything contained in the Code of CriminaI Procedure,1973 (2 of 1974), an appeaI shaII Iie, from any judgment, sentence or order, not being an interIocutory order, of a SpeciaI Court or an ExcIusive SpeciaI Court, to the High Court both on facts and on Iaw.<br>(2) Notwithstanding anything contained in sub-section (3) of section 378 of the Code of CriminaI Procedure, 1973 (2 of 1974), an appeaI shaII Iie to the High Court against an order of the SpeciaI Court or the ExcIusive SpeciaI Court granting or refusing baiI.<br>(3) Notwithstanding anything contained in any other Iaw for the time being in force, every appeaI under this section shaII be preferred within a period of ninety days from the date of the judgment, sentence or order appeaIed from:<br>Provided that the High Court may entertain an appeaI after the expiry of the said period of ninety days if it is satisfied that the appeIIant had sufficient cause for not preferring the  appeaI within the period of ninety days:<br>Provided further that no appeaI shaII be entertained after the expiry of the period of one hundred and eighty days.<br>(4) Every appeaI preferred under sub- section (1) shaII, as far as possibIe, be  disposed of within a period of three months from the date of admission of the appeaI.\"<br></h4><h4 style=\"\">7. Sub-section (1) of Section 14-A of SC and ST Act has an overriding effect on the provisions of Cr.P.C. However, sub-section (1) of Section 14-A excludes the interlocutory  orders from its purview. Therefore, going by sub-section (1) of Section 14-A, an appeal will not lie against an order granting or refusing to grant bail.  However, sub-section (2) of Section 14-  A of Cr.P.C provides that an appeal shall lie to the High Court against an order of Special Court and exclusive Special Court granting or refusing bail. Thus, sub-section (2) of Section 14-A of the SC and ST Act carves out an exception to the rule under sub-section (1) of Section 14A which lays down that no appeal will lie against an interlocutory order.<br>8.The emphasis of the learned  counsel  appearing for the appellants/accused was on the fact that Section 378 of Cr.P.C is applicable to criminal appeals and sub-section (3) of Section 378 provides that an appeal as such filed under sub- section (1) and sub-section (2) of Section 378 can be entertained only with the leave of the High Court. It is true that sub-section (3) of Section 378 of Cr.P.C has nothing to do with the power to grant bail. The law is well settled. It is the duty of the Court to interpret the law in such a manner that no provision of the law becomes redundant. A possible interpretation can be that an appeal against an  order granting  or refusing to grant bail can be preferred without seeking a  leave of the High Court as required by Section 378 of Cr.P.C.<br>10. As far as the provision regarding appeal is concerned, there is no difference between sub-section (1) of Section 34 of POTA and sub-section (1) of Section 14-A of SC and ST Act. The only one difference which can be  noted  is  that sub-section (1) of Section 34 specifically provides that an appeal will lie both on facts and law.  However, as in the case   of sub-section (1) of Section 14-A of the SC and ST Act, sub- section (1) of Section 34 of POTA Act provides that there  will  be no appeal against an interlocutory order. There is no difference between the language used in sub-section (4) of Section 34 of POTA Act and sub-section (2) of Section 14-A of the SC and ST Act. Both the Sections start with  a  non  obstante clause and provide for an appeal against an order of the Special Court granting or refusing bail.<br>11. The Apex Court interpreted the provisions of sub- section (4) of Section 34 of POTA. In paragraph 8 of the aforesaid decision in the case of State of Gujarat vs. Salimbhai  Abdulgaffar Shaikh  and  others, AIR 1988 SC 922, the Apex Court noted that normally, an order granting or refusing bail is an interlocutory order and an appeal would not lie against such an order. The Apex Court further observed that in view of sub-section (4) of Section 34, an  appeal shall lie to the High Court against an order granting or refusing to grant bail. The Apex Court also noted that Section 439 of Cr.P.C confers concurrent powers on the Court of Sessions and the High Court to grant bail.  In  paragraph 12,  the Apex Court noted the argument of the learned counsel appearing for the respondents that the provisions of POTA do not take away the power of the High Court to grant bail by exercising the power under Section 439 of Cr.P.C. Another argument was that sub-section (5) of Section 49 of POTA provides that nothing in Section 438 of Cr.P.C shall apply in relation to pre-arrest of any person accused of having committed an offence punishable under the  said  Act.  It must be observed here that the said provision of sub-section (5) of Section 49 of POTA is pari materia with Section 18 of the SC and ST Act.<br>13. Hence, the Apex Court in clear terms held that as sub-section (4) of Section 34 of POTA provides for an appeal   to the High Court against an order granting or refusing to grant bail, the High Court cannot exercise the power under Section 439 of Cr.P.C in exercise of original or concurrent jurisdiction. As can be seen from sub-section (2) of Section 34 of POTA, an appeal under sub-section (4) thereof lies before a Division Bench. Therefore, the interpretation put by the Apex Court to sub-section (4) of Section 34 of POTA Act will govern sub- section (2) of Section 14-A of the SC and ST Act.<br>14. As far as an appeal under sub-section (2) of Section 14-A is concerned, the same will be governed by Section 5 of the Karnataka High Court Act, 1961 which reads thus:<br>\"5. First Appeals. - Save as otherwise provided in this Act. -<br>(i) all First Appeal against a decree or order passed in a suit or other proceedings, the  value of subject matter which exceeds fifteen lakh rupees shall be heard by a Bench consisting of not less than two Judges of the High Court and other First Appeals shall be heard by a Single Judge of the High Court.<br>(ii) All Criminal Appeals against Judgments in which sentence of death or imprisonment for life is passed and against Judgments or acquittal in cases in which offences are punishable with death or imprisonment for life shall be heard by a Bench consisting of  not less than two Judges of the High Court and other Criminal Appeals shall be heard by a Single Judge of the High Court.\"<br>Thus, clause (ii) of Section 5  lays down  which category of criminal appeals will be heard by a Division Bench. It  provides that all other appeals shall be heard by a  Single  Judge of this Court. Only the criminal appeals against the judgments in which sentence of death or imprisonment for life  is passed and against the judgments of acquittal in cases in which offences are punishable with death or imprisonment for life shall be heard by a Division Bench of this Court. All other appeals are required to be heard by a  Single  Judge.  Therefore, an appeal provided under sub-section (2) of Section 14-A of the SC and ST Act will lie before a Single Judge. If the argument that notwithstanding the remedy of an appeal available under sub-section (2) of Section 14-A of the SC and ST Act, the High Court can exercise original or concurrent jurisdiction under Section 439 of Cr.P.C is accepted, then a Single Judge of this Court will be exercising an appellate jurisdiction against an order granting or refusing to grant bail by a Special Court and an original or concurrent jurisdiction under Section 439 of Cr.P.C to grant bail. As can be seen  from Section 14-A of the SC and ST Act, a Special Court or an Exclusive Special Court is always a Court of sessions. Therefore, as held by the Apex Court, the provisions of sub- section (2) of Section 14-A cannot be interpreted in such a manner that the High Court will exercise original or concurrent jurisdiction as well as Appellate Jurisdiction in respect of the same matter which will lead to an incongruous situation.<br>15.We need to state here that the position of law is that normally, a High Court will not entertain an application under Section 439 of Cr.P.C unless the applicant first approaches the Sessions Court. Therefore, when a person is arrested with the allegation of commission of an offence punishable under the SC and ST Act, he will have to approach the Special Court or an Exclusive Special Court constituted under Section 14 of the SC and ST Act for grant of bail.<br>23. In view of the said dictum of the Apex Court, in a case where the complaint alleges commission of an offence punishable under the SC and ST Act, the Special Court or an Exclusive Special Court can exercise the jurisdiction under Section 438 of Cr.P.C provided the complaint does not make  out a prima facie case for the applicability of the provisions of the SC and ST Act. Therefore, if a Special Court or an  Exclusive Special Court passes an order of granting or refusing to grant pre-arrest bail under Section 438 of Cr.P.C, an appeal will be available to the High Court under sub-section (2) of Section 14-A of the SC and ST Act. However, while dealing  with the appeal, the High Court can consider the question of grant of pre-arrest bail only if the complaint does not  make out a prima facie case for the applicability of the provisions of the SC and ST Act as held by the Apex Court in the case of Prathvi Raj Chauhan .<br>25. To conclude, we hold as under:<br>(i) An appeal is maintainable under sub-section (2) of Section 14-A of the SC and ST Act to the High Court against an order of the Special Court or an Exclusive Special Court established under Section 14 of the said Act granting or refusing to grant bail;<br>(ii) As held by the Apex Court in the case of Prathvi Raj Chauhan vs Union  of India and others AIR 2020 SC 1036, in a given case, the powers under Section 438 of Cr.P.C can be exercised, if the complaint does not make out a prima  facie case for applicability of the provisions of the SC and ST Act. Therefore, only to that extent, against an order granting or refusing to grant  pre-arrest bail under Section 438 of Cr.P.C by a Special  Court or Exclusive Special Court, a remedy of appeal under sub-section (2) of Section  14-A  of the SC and ST Act is available;<br>(iii) In view of availability of the remedy of  appeal under sub-section (2) of Section 14-A of the SC and ST Act, it will not be open for the High Court to exercise the original or concurrent  jurisdiction under Sections 438 and 439 of Cr.P.C;<br>(iv) We hold that in view of clause (ii) of Section 5 of the Karnataka High Court Act, 1961 a Single Judge has the jurisdiction to entertain and decide an appeal under sub-section (2) of Section 14-A of the SC and ST Act;<br>(v) The question formulated by the learned Single Judge in his order dated 15th December 2020 and the questions formulated by us in paragraph 1 above are answered on the above terms.<br><br><br><br></h4><div><br></div>', '2eb2f10f433131ea301ad8b25dc9124b.PNG', '2c56a59677cc1c44a32292e0e2247bbc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-30', 1, '', '', '2021-05-05 18:48:46', '2021-05-05 18:57:51');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(735, 'qXts7sQ1Do9BehqYal7WeQvkz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal trial. Polygraph test. Silence would not amount to consent of the accused for polygraph test. Result of polygraph test conducted without written  consent is void and inadmissible in evidence. Karnataka High Court.', '<h4>Virendra Khanna vs State of Karnataka and another.<br>Writ Petition 11759 of 2020 decided on 12 March 2021.</h4><h4><br>7. On the basis of the pleadings filed and the arguments advanced the points which arise for determination by this Court are:<br>1. Can a direction be issued to an accused to furnish the password, passcode or Biometrics in order to open the smartphone and/or email account?<br>2.Can a Court issue a suo moto order to the accused to furnish a password, passcode or Biometrics?<br>3.In the event of a direction being issued and the accused not furnishing the password, passcode or Biometrics, what is the recourse available to an Investigating Officer?<br>4. What is the consideration for the issuance of a search warrant in order to search a smartphone or computer system?<br>5. Would the data gathered from a smartphone and/or email account ipso facto prove the guilt of the accused?<br>6. Would providing a password, passcode or Biometrics amount to self-incrimination or testimonial compulsion?<br>7. Would providing of password, passcode or Biometrics violate the right to privacy of a person providing the said password, passcode or Biometrics?<br>8. What steps could be taken if the accused or any other person connected with the investigation were to refuse to furnish a password, passcode or Biometrics despite issuance of a search warrant and or a direction to provide a password, passcode or Biometrics of that person?<br>9. What are the protection and safeguard that the Investigating Officer would have to take in respect of the smartphone and/or electronic equipment?<br>10. Whether the order dated 14.09.2020 passed by the Trial Court directing the Petitioner to co-operate with the investigating agency and provide a password to open the smartphone and email account is proper?<br>11. Whether the order dated 23.09.2020 passed by the Trial Court directing the Petitioner to undergo a polygraph test violates the rights of the Petitioner under Article 20 of the Constitution of India?<br>8. INTRODUCTION:<br>8.1. Today technology has become all-pervasive, a telephone which was used in the past for communication now called a landline has given way to sophisticated instruments like smartphones which have computing powers probably thousand times more than that of computers of 90’s leading to the mobile phone or a smartphone becoming the central device for running the affairs of the person. <br>8.2.<span style=\"white-space:pre\">	</span>The mobile phone,now called a smartphone, is truly smart and today is used for all purposes, one of which is as a phone for conversing with people.It may also not be wrong to say that the usage of a smartphone as a phone is the least used of its features.<br>8.3.<span style=\"white-space:pre\">	</span>The smartphone is being used today for various activities, including sending messages, conversing on social media like WhatsApp, Facebook, Twitter, Instagram, Telegram, Signaletc., sending and receiving e-mails from various accounts, be their personal or official.Usage of the smartphone for the purpose of accessing the internet, browsing world wide web, etc. carrying out online transactions, online purchases either by internet browser or through specified and specific applications, storage of photographs,  documents, retrieval of the documents stored in the cloud or on a remote server etc., etc., the list could go on and on.<br>8.4. Essentially today, a smartphone,in many cases, has replaced the laptop, which had replaced the office, and the smartphone by itself is an office for several persons.<br>8.5.The Law of Evidence and the Criminal Procedure Code that had been enacted long ago have also been amended from time to time to try and cater to the tremendous technological improvements, apart thereform the Information Technology Act, 2000 (IT Act) has been enacted and amended from time to time to cater to these technological improvements. <br>8.6. The following definitions under IT Act would be relevant for consideration of the present matter:<br>2(ha) \"Communication device\" means cell phones, personal digital assistance or combination of both or any other device used to <br>8.7.<span style=\"white-space:pre\">	</span>The following definitions in the interpretation clause of Section 3 of the Indian Evidence Act would be relevant:<br>8.9.<span style=\"white-space:pre\">	</span>Juxtaposing the above to the definitions of an electronic form and electronic record under the IT Act, it can be seen that the definition of these two phrases seek to encompass and cover all kinds of methodology of storing data, documents as an image, photographs, documents or otherwise.Essentially all kind of images, documents, etc. can be classified as data inasmuch as the data being information stored in a particular kind of media.<br>8.10.<span style=\"white-space:pre\">	</span>Though even earlier documents were referred to and used for the purpose of evidence, essentially even at that point of time what it referred to was the data in the said document viz., the printed or written word in the document, therefore whether documentary evidence or electronic evidence essentially what one is dealing with is data.<br>8.11.<span style=\"white-space:pre\">	</span>It is this data that is required to be accessed by an Investigating officer for the purposes of carrying out an investigation; this data is required for the purposes of being referred to while a charge sheet is being laid, it is the data that would be considered by a Court of Law during the course of evidence and/or rendering of the Judgment.<br>8.12.<span style=\"white-space:pre\">	</span>In the past, letters, postcards, Island letters, telex, fax were used for the purpose of communication.This communication essentially resulted in a hard copy being sent or printed at the recipient\'s end.This document,<span style=\"white-space:pre\">	</span>in<span style=\"white-space:pre\">	</span>its<span style=\"white-space:pre\">	</span>physical form,wasconsidered, relied upon as original document during the investigation process and later-on produced and marked during the course of evidence being led in a proceeding and considered by a Court.<br>8.13.<span style=\"white-space:pre\">	</span>Smartphones and/or computer equipment are becoming ubiquitous, hard copies/print outs/ books, filing cabinets, essentially anything on paper is becoming obsolete.<br>8.14.<span style=\"white-space:pre\">	</span>As aforestated, today this physical document has taken on an electronic appearance, and these electronic documents/data could be stored on the mobile phone, computer or the like.More often than not, these smartphones, computers, servers, etc., are accessed only by using a password/passcode, including that by biometrics technology, facial recognition, iris recognition etc.Thus without having the said password, passcode, biometric, no one can access either a  mobile phone, computer or server.Some times even safes, filing cabinets, etc., are also locked using the above methodology.<br>8.15.<span style=\"white-space:pre\">	</span>It is in this background that the above matter would have to be considered.<br>9. ANSWER POINT No.1: Can a direction be issued to an accused to furnish the password, passcode or Biometrics in order to open the smartphone and/or email account?<br>9.1. The Investigating Officer, during the course of an investigation, could always issue any direction and/or make a request to the accused or other persons connected with the matter to furnish information, to provide material objects or the like. These directions are routine in any investigation. Thus,  during the course of the investigation, the Investigating Officer could always request and/or direct the accused to furnish the password, passcode or Biometrics, enabling the opening of the smartphone and/or email account. It is up to the accused to accede to the said request and or directions. If the accused were to provide such a password, passcode or Biometrics, the Investigating Officer could make use of the same and gain an access to the same. <br>10. ANSWER TO POINT NO.3: Can a Court issue a suomoto order to the accused to furnish a password, passcode or Biometrics?<br>10.1. The Court cannot per se issue any directions to the accused to furnish the password, passcode or Biometrics and direction to cooperate would not amount to a direction to furnish password, passcode or Biometrics. The gathering of information and/or evidence, mode and methodology of investigation is in the exfaciedomain of the Investigating Officer.<br>10.2. The court by itself cannot suo moto order for furnishing of the password, passcode or Biometrics. The Court is not part of the investigation. The Court can only act on an application being filed by either of the parties. <br>11. ANSWER TO POINT NO.4: In the event of a direction being issued and the accused not furnishing the password, passcode or Biometrics, what is the recourse available to an Investigating Officer?<br>11.1. In the event of the accused not providing the password, passcode or Biometrics, the Investigating Officer can approach the Court seeking for necessary directions to the accused to provide the same and/or carry out a search of the smartphone or any electronic equipment.<br>11.2.<span style=\"white-space:pre\">	</span>The Investigating Officer could approach the concerned Court seeking for issuance of a search warrant to carry out a search of the smartphone and/or electronic equipment.<br>12. ANSWER TO QUESTION NO.5: What is the consideration for the issuance of a search warrant in order to search a smartphone or computer system?<br>12.1.<span style=\"white-space:pre\">	</span>The requirement for a search of a smartphone and/or electronic instrument could arise under two circumstances.<br>12.1.1. Emergent circumstances<br>12.1.2. During the regular ordinary course of the investigation<br>12.2.<span style=\"white-space:pre\">	</span>It is in light of these two circumstances that the nature and methodology of a search would have to be considered.<br>12.3.<span style=\"white-space:pre\">	</span>The Cr.P.C. provides a framework for carrying out a search of any premises or the like. There is no particular or different framework provided for the purposes of search of a smartphone or electronic equipment, computer, server etc. Thus, it is the framework under Cr.P.C. and to some extent under the Information Technology Act, which would have to be made applicable to searches of these kinds.<br>12.4.<span style=\"white-space:pre\">	</span>Chapter VII of Cr.P.C. provides for search, seizure, production etc. Section 91 of Cr.P.C. enables any Court or any officer in charge of a police station to issue summons or order to the person in whose possession or power such a document or thing are believed to be requiring him to attend and produce it at the time and place indicated in the said summon or order.<br>12.5.<span style=\"white-space:pre\">	</span>Section 92 of Cr.P.C. provides the power to the District Magistrate, Chief Judicial Magistrate, Court of Sessions or High Court to require the postal or telegraph authority for the purposes of investigation, enquiry or trial to order the postal or telegraph authority to deliver the document, parcel or thing in the custody of postal or telegraph authority. Similarly, the Commissioner of Police or District Superintendent of Police may require the postal or telegraph authority to cause search, detain the document or parcel and produce the same before the Court. It is pertinent to mention here that the correspondence email etc., would be covered under the Telegraph Authority.<br>12.6.<span style=\"white-space:pre\">	</span>Section 93 of the Cr.P.C. provides powers to the Court to issue a search warrant<br>12.6.1. On a person not willing to produce a document or a thing as directed under Section 91 of Cr.P.C., or<br>12.6.2. Where the document or thing is not known to be in possession of anyperson or<br>12.6.3. Where the Court considers that for the purpose of any enquiry, trial or other proceedings, a general search or inspection would serve the purpose.<br>12.7.<span style=\"white-space:pre\">	</span>In terms of Section 93 (2) of Cr.P.C., the Court could also restrict the search to a specific place, a specific time or a specific purpose.<br>12.8.<span style=\"white-space:pre\">	</span>Section 94 of Cr.P.C. confers power on certain Courts to search places suspected to contain stolen property, objectionable article, forged documents, counterfeit material, obscene objects, instruments or materials used for the production of any item under Section 94 (2) of Cr.P.C., and to take such action as may be required in terms of Section 94(1) of Cr.P.C., thereof. <br>12.9.<span style=\"white-space:pre\">	</span>In terms of Section 100 of Cr.P.C., in the event of any place being closed, any person residing in or being in charge of such place shall on demand of the officer or other person executing the warrant and on the production of the warrant allowing free ingress thereto. As also afford all reasonable facilities for a search therein. In the event of any person suspected to be concealing any article, a search of such person could also be made subject to however restrictions that a search of any woman could be made by a woman.<br>12.10. During the process of search in terms of Section 102 of Cr.P.C., any particular item could be seized by a person conducting a search on fulfilling certain criteria. <br>12.11. In view of the above, the said Chapter VII provides several powers to the Police or Magistrates, which could include the power to search and seize a smartphone, computer, server or any other electronic item or equipment.<br>12.12. A search and seizure of a smartphone can also be permitted in terms of the above provisions as contained in the Cr. P.C. As observed above, in terms of Section 100 of Cr.P.C., even a closed place can be searched by the persons searching directing any person incharge of a place to open the same and provide all facility. It is in the background of the above provisions that the aspect of search of a smartphone or electronic equipment, including an e-mail account will have to be considered. <br>Search and Seizure in Emergent circumstances<br>12.13. It may happen that there may arise certain emergencies or exigencies for a search of a smartphone or electronic equipment to be carried out like if the data is going to be immediately destroyed, there is a danger of equipment itself being destroyed, the possibility of the equipment not being available, etc.<br>12.14. In terms of Section 102 of Cr.P.C., if there are any emergency circumstances, the Police Officer could seize the equipment; if there is any suspicion that either the object has been stolen or which create suspicion of commission of any offence.<br>12.15. The second aspect as regards of suspicion of  any commission of any offence is wide enough to cover a plethora of  situation. Thus, in an emergent situation, the Police Officer could seize the electronic equipment.<br>12.16. In emergent circumstances, it cannot be expected of the Investigating officer to rush to a court of Law to obtain a warrant, such a requirement would amount to negating their powers and impinging on their functions. When there is adequate time to obtain a warrant, the same ought to be obtained, however, if an urgent search is to be conducted and it may be difficult to get a search warrant, certain safeguards will have to be observed and conditions fulfilled.<br>12.17. There must exist reasonable grounds for believing that it is necessary for carrying out a search of the Smartphoe or Electronic Equipment with expediency and that if such a search is not conducted immediately, the conduct of the offence may be expedited and/or the evidence thereof be lost.<br>12.18. In such a scenario, there must be a recording in writing made by the Investigating officer, specifying in writing as far as possible the reasons for conducting such a search without a warrant. The objective satisfaction by such officer of the emergent nature of the search has to be recorded in writing in sufficient detail. Unless these conditions are fulfilled, a search without a warrant would be without jurisdiction, these conditions are necessary to safeguard the interest of the person and or organization searched, more so when a search so conducted would also impinge on the right to privacy of such a person.<br>12.19. In terms of Section 165 of Cr.P.C., if the investigating officer during the course of investigation has reasonable grounds for believing that anything required for the purpose of investigation would be found in a place within the limits of his police station of which he is incharge of or attached to, he may without delay after recording in writing the grounds for belief and specifying in writing as far as possible, the thing for which search is to be made, search any place within his limits of jurisdiction. However, the copies of any record made to conduct such a search would have to be sent to the Magistrate empowered to take cognizance of an offence and a record of the same. Though a search without reasons and without following the procedure may be illegal, the illegality of the search would not make any seizure made during the search inadmissible as held by the Hon’ble Apex Court in the case of Dr.Pratap Singh vs. Director of Enforcement Foreign Exchange Regulation and others reported in (1985) 3 SCC 72. However, the Courts would have to be cautious while dealing with the evidence collected in such an illegal search.<br>Search and Seizure during the regular ordinary course of the investigation<br>12.20.If the search is required to be carried out in a normal and regular course of an investigation, in that situation, the investigator or investigating agency would have sufficient time to plan out the manner of carrying out such a search as there being no emergency or immediate requirement of carrying out such search.<br>12.21. The investigating officer could issue a notice under Section 91 of Cr.P.C., calling upon the accused or any other person to produce any particular document or equipment as stated above. If not so produced, a search warrant could be sought for from the Court of law. Be that as it may without issuance of a notice under Section 91 of Cr.P.C., a search warrant could be issued inasmuch as the issuance of a notice under Section 91 of Cr. P.C. is not a pre-condition for issuance of a search warrant under Section 93 of Cr. P.C. Once a search warrant is issued and received by the accused or any other person it would be the obligation of such person to permit the search and/or to provide document or thing called upon.  <br>12.22. While issuing a search warrant, the concerned Court would have to indicate as to what smart phone, electronic equipment or email account is to be searched. The role of the same in the crime, the nature of search to be done, place where the search has to be done as also specifically interdict the persons carrying out the search from disclosing the material and/or data procured during the course of the said search to a third party. So as to preserve the privacy of the concerned.<br>12.23. The provisions referred to and mentioned deals with search and seizure. Electronic equipment occupies a slightly different position, in that it is not only the seizure of the phone and equipment, but once it is seized, the said equipment is required to be opened more often than not such equipment are locked by password, passcode or biometrically. Thus, for the purpose of opening and/or accessing the data on the said equipment, it would be required for the accused or person in charge of the said equipment to provide a password, passcode or open the same using the biometrics.<br>12.24. As mentioned above, in terms of Section 100 of Cr.PC., a person in charge of a closed place is also required to permit such search and, in fact, facilitate such search.<br>12.25. Applying the said principle to a smartphone, electronic equipment or an email account, it would but be required for the accused or a person in charge of electronic equipment to provide the password, passcode or biometrics to open the Smartphone, computer equipment or email account.<br>12.26. It is these aspects which have to be considered in the present circumstances. Section 69(1) of the IT Act empowers the specified officers to pass orders compelling the decryption of any information, generated, transmitted, received or stored in a computer resource which would also include a smartphone.<br>12.27. When the said authority is satisfied that it is necessary for the purpose of any investigation into any offence, however, an officer, before ordering such decryption, is required to record in writing the reasons for calling upon for such decryption and inform the person of the possibility of prosecution if he does not comply with a request.<br>12.28. Search and seizure are important weapons in the hands of the officers concerned therefore it is but required that such powers should be exercised with due circumspection and discretion, and the same should not result in harassment of innocent persons. When a search is made with a warrant, the procedure required to be followed is stated in the Cr. P.C, which need to be so followed. Even  when a search is made without a search warrant, it would be treated that such a search or consequent seizure is conducted/made the safeguards enshrined under the Cr. P.C.<br>12.29. As observed above, the officers conducting a search are required to comply with the procedural requirements of Cr.P.C, some of them though not exhaustive,are enumerated hereunder:<br>12.29.1. A lady officer is required to be present if the accused is a lady or if the equipment is located in a place where there are ladies present.<br>12.29.2. The search and seizure should normally be done after sunrise and before sunset. However, if it is conducted after sunset and before sunrise, the grounds as to why it was felt necessary to take such action should be recorded and copy of the grounds so recorded must be sent within 72 Hours to the immediate official superior.<br>12.29.3. The officers before starting the search are required to disclose their identity by showing their identity cards to the owner of the premises.<br>12.29.4. Search should be made in the presence of two independent and respected witnesses of the locality.<br>12.29.5. A Panchnama / Mahazar, should be prepared on the spot which contains the proceedings of the search. A list of all goods, documents recovered and seized/detained should be prepared and annexed to the Panchnama/Mahazar. This document and the list of things seized needs is to be signed by the witnesses and the owner of the premises before whom the search is conducted and also by the officers who are carrying out the said search.<br>12.29.6. After examination of the seized goods or things by the authority, the same to be sent for any technical/forensic examination within a period of 72 hours thereof.<br>12.29.7. A search and seizure report to be prepared containing the details of the conduct of the search and outcome, containing the names of the officers and other persons including the panchas and witnesses who participated in the search.<br>12.29.8. A copy of the Panchnama / Mahazar prepared to be furnished to the person in- charge/owner of the premises being searched under acknowledgement.<br>13. ANSWER TO QUESTION NO.6:Would the data gathered from a smartphone and/or email account ipso facto prove the guilt of the accused?<br>13.1.<span style=\"white-space:pre\">	</span>Since, as stated above, a smartphone can contain humongous data, which could also be incriminatory insofar as the person owning the said electronic equipment, including the smartphone, is concerned and it is in this background, we have to consider the providing of a password, passcode or biometrics and whether making available, this incriminatory material would amount to giving of testimony and or a statement in terms of Section 161 of Cr.P.C.<br>13.2.<span style=\"white-space:pre\">	</span>On a notice being issued under Section 160 of Cr.P.C., any witness could be examined by  the police, the witness could be the accused himself.<br>13.3.<span style=\"white-space:pre\">	</span>Such a statement needs to be reduced to in writing wherein such person is required to answer all questions relating to such case, other than the questions, the answer to  which would have the tendency to expose him to a criminal charge or a penalty or forfeiture. That being a right to protection of self-incrimination as enshrined under Article 20 of the Constitution of India.<br>13.4.<span style=\"white-space:pre\">	</span>Though Mr Tigadi, learned counsel for the Respondent contended that the disclosure of password is in the nature of giving specimen signatures or handwriting and therefore a direction could be issued under Section 311-A of the Cr. P.C, I\'m of the considered opinion that the providing of a password, passcode or biometrics is more than that, and a direction cannot be issued in that manner.<br>13.5. In the event of password, passcode or Biometrics being provided and the Investigating Officer gaining access to the said smartphone and/or electronic equipment or email account, the data so gathered would have to be treated as any other document and/or object secured during the course of investigating like in the case of securing a murder weapon. The same does not by itself prove that the accused has committed the murder, similarly, the data gathered by itself would not prove the guilt of the accused. The data gathered would have to be proved during the course of the trial as done in any other matter.<br>14. ANSWER TO POINT NO.7:Would providing a password, passcode or Biometrics amount to self-incrimination or testimonial compulsion?<br>14.1.<span style=\"white-space:pre\">	</span>As regards the contention that providing of the password/pass code will amount to testimonial compulsion, I am of the considered opinion that there is no testimony which is given by the accused by providing the said password, passcode or biometrics by which the document is being accessed by the Investigating officer.<br>14.2.<span style=\"white-space:pre\">	</span>The XI Judge Bench of the Apex Court in Kathi Kalu Oghad’s case has categorically held that providing of a thumb impression or impression of the palm or foot or fingers or specimen in writing or exposing a part of the body of an accused person for the purpose of identification would not amount to testimonial compulsion. Mere providing of an access of to smartphone or e-mail account would not amount to being a witness, the information that is accessed by the Investigating officer on the smartphone and or the e-mail account being only access to the data and/or documents, it is for the Investigating officer to prove and establish the same in a Court of Law by following the applicable Rules of evidence.<br>14.3. Merely because any document is present or available on the smartphone and or the e- mail account would not by itself establish the guilt or innocence of an accused. Both the prosecution, as also the accused/defence would be required to prove the  said document or data by other evidence also. <br>14.4.<span style=\"white-space:pre\">	</span>If the submission of Mr.Hasmath Pasha, learned Senior counsel would be accepted, the same would result in a chaotic situation:<br>14.4.1. No blood samples can be taken;<br>14.4.2. no sample for DNA analysis could be taken;<br>14.4.3. no handwriting samples can be taken;<br>14.4.4. no other body sample for the purpose of DNA analysis could be taken<br>14.4.5. No search of a house or office could be undertaken.<br>14.4.6. The data of a laptop or computer or server cannot be accessed by the Investigating officer.<br>14.4.7. offences like cyber crime could never be investigated.<br>14.4.8. Offences like pornography, child pornography which are  more  often than not, on the internet, could not be investigated.<br>14.5.<span style=\"white-space:pre\">	</span>A direction to provide a password, passcode, biometrics would not amount to testimonial compulsion. It is only in the nature of a direction to produce a document. Mere providing access to a smartphone or e-mail account would not amount to self- incrimination since it is for the investigating agency to prove its allegation by cogent material evidence.<br>14.6.<span style=\"white-space:pre\">	</span>The data available on a smartphone or e-mail account would also have to be proved by the investigating agency in accordance with Law. Mere providing of password, passcode or biometrics would not amount to answering any question put forward by the Investigating Officer, and as such, it would not amount to a violation of Section 151(2) of the Cr.P.C.<br>14.7.<span style=\"white-space:pre\">	</span>As contended by Sri.Veranna Tigadi, learned counsel providing of the password, passcode, pin, biometrics is akin to finger printing and/or taking imprints of the shoes, soles and or taking sample of the clothes, biological samples, chemical samples, etc, same cannot amount to forced testimony on part of the accused. On the examination of the data in the telephone/mobile and or on the computer, etc, prosecution would have to prove the same by cogent evidence.<br>14.8.<span style=\"white-space:pre\">	</span>By providing of password, passcode or biometrics, there is no oral statement or a written statement being made by the accused like the Petitioner herein, therefore it can not be said to be testimonial compulsion.<br>15. ANSWER TO QUESTION NO.8:Would providing of password, passcode or Biometrics violate the right to privacy of a person providing the said password, passcode or Biometrics?<br>15.1.<span style=\"white-space:pre\">	</span>This aspect is to be considered in light of the principles propounded by the Hon’ble Apex Court in Justice Puttaswamy’s case supra. More so, in view of the fact that the data which could be available on the said electronic equipment being personal in nature could also be misused by the investigating agency and/or the investigating agency would come into possession of personal data which are held secret by that person which have nothing to do with the investigation at all more so since there cannot be a strict <br>compartmentalisation of data as personal or not personal in the said equipment belonging to a person or in the e-mail account.<br>15.2.<span style=\"white-space:pre\">	</span>Once the investigating agency has an access to a electronic equipment more particularly smart phones and/or laptops, the Investigating Officer has a free access to all data not only on the said equipment but also any cloud service that may be connected to the said equipment, which could include personal details, financial transactions, privileged communications and the like.<br>15.3.<span style=\"white-space:pre\">	</span>The rules which are applicable to physical document where a particular document could be classified as a privileged communication and/or strictly private and confidential cannot apply to the data which is stored on a smartphone or any other electronic equipment since once an investigating officer has an access to the said smartphone, electronic equipment or e-mail account, he would have complete access to the data.<br>15.4.<span style=\"white-space:pre\">	</span>Such data though may not be incriminatory, may be very private or secret to the person or such data could incriminate the said person in any particular offence.<br>15.5.<span style=\"white-space:pre\">	</span>The use of such data during the course of the investigation would not amount to a violation of the right to privacy and would come within the exceptions carved out in Justice Puttaswamy’s case supra, however, the disclosure, making public or otherwise in court proceedings would have to be determined by the concerned judge by passing a judicial order. In no case could such details or data be provided by the investigating officer to any third party during the course of investigation without the written permission of the court seized of the matter. The responsibility of safeguarding the information or data which could impinge on the privacy of the person will always be that of the investigating officer, if the same is found to have been furnished to any third party the investigation officer would be proceeded against for dereliction of duty or such other delinquency as provided.<br>16. ANSWER TO POINT NO.9:What steps could be taken if the accused or any other person connected with the investigation were to refuse to furnish a password, passcode or Biometrics despite issuance of a search warrant and or a direction to provide a password, passcode or Biometrics of that person?<br>16.1.<span style=\"white-space:pre\">	</span>Though not argued or contended this Court would also have to take into consideration  the possibility of the accused not co- operating inspite of above directions having been issued and/or providing apassword, passcode which is incorrect.<br>16.2.<span style=\"white-space:pre\">	</span>In the event of the accused not co-operating and not providing necessary password, passcode adverse inference could be drawn subject to the prosecution pointing out the nature of such adverse inference which could be drawn.<br>16.3.<span style=\"white-space:pre\">	</span>The second situation is even more dangerous inasmuch as the accused may provide a wrong password or passcode and or provide biometrics of a wrong person, and sometimes by way of the usage of such wrong password, passcode or biometrics for more times than one, the device could either get locked and/or the data on the said device and the e-mail account could be wiped out automatically because a wrong password, passcode or biometrics has been used multiple times. The Investigating agency therefore has to be aware of and careful of this possibility.<br>16.4.<span style=\"white-space:pre\">	</span>The accused in such a situation is therefore required to be given only one chance to provide the proper password, passcode or biometrics to open the smartphone and e- mail account.<br>16.5.<span style=\"white-space:pre\">	</span>In both the above situations, the Investigating Agency would also be at liberty to engage such specialised agency as may be required in order crack the password,  passcode or biometrics so as to have access to the smartphone and or the e-mail id. The accused cannot thereafter contest the methodology used by the Investigating Agency to access the information on the smartphone or e-mail account since the accused having been given an opportunity to co-operate and provide the password, passcode, or biometrics, has refused to co- operate and do so,<br>16.6. The rules of electronic device would apply to any data if sought to be made use of by the Investigating agency in a Court of Law. The Investigating agency would be at liberty to clone the smartphone and or hard disk of the smartphone, as also any data available on any cloud service to which the smartphone is connected to and make use of the same during the course of investigation and/or trial.<br>16.7.<span style=\"white-space:pre\">	</span>Similarly the Investigating agency would be at liberty to block the access to the e-mail accounts once opened by changing the password so that no one else apart from the designated officers would have access to the said smartphone, computer equipment or e- mail accounts. The data available on the said e-mail account could be downloaded and preserved, as also made use of by the Investigating agency for the investigation.<br>16.8.<span style=\"white-space:pre\">	</span>Thus the procedure that would have to be followed would be as under:<br>16.9.<span style=\"white-space:pre\">	</span>It would be required for the prosecution to approach the Court to seek a search warrant to search the smartphone and or e-mail account. Once a search warrant is issued, it is upto the Petitioner- accused to provide the password, passcode, biometrics etc.,<br>16.10. The investigating agency could also serve a notice on the accused indicating that in the event of the accused not furnishing the said password, passcode, biometrics etc., an adverse inference would be drawn against the accused as regards the aspects notified in the said notice. The accused can then,in order to avoid the adverse inference from being drawn, furnish the password, passcode or biometrics to the Investigating authorities.<br>16.11. In the event of the accused or any other person not providing the password, passcode or biometrics, on an application made by the prosecution, the court could direct the service  provider viz., manufacturer of the smartphone and/or e-mail service provider, to open or unlock the smartphone and/or email account to enable access to the said smartphone and/or email account.<br>16.12. In the event of the manufacturer and the service provider not facilitating the opening of the smartphone, email account or computer equipment, then the Court on an application being filed in that regard permit the Investigating Officer to hack into the smartphone and/or email account.<br>16.13. The investigating agency would be empowered to engage the services of such persons as may be required to hack into the smartphone and or e-mail account and make use of the data available therein, which would  be akin to breaking open a lock or door of the premises when the accused were to refuse to co-operate with the Investigating officer and open the door of locked premises.<br>16.14. In the event of the investigating agency is unsuccessful in hacking into the smartphone and or the e-mail account and during the course of such a procedure, if the data on the smartphone and or the e-mail account being destroyed then, the Investigating agency/prosecution would be free to rely upon the notice by which the accused was warned of adverse inference being drawn.<br>17. ANSWER TO POINT NO.10:What are the protection and safeguard that the Investigating Officer would have to take in respect of the smartphone and/or electronic equipment?<br>17.1.<span style=\"white-space:pre\">	</span>It is required for the Investigating Officer or the search team to carry out the search in a proper and scientific manner, more so since what has to be searched in the electronic equipment, smartphone or email account.<br>17.2.<span style=\"white-space:pre\">	</span>Apparently, there are no rules formulated by the police department regarding the manner of carrying out a search and/or for preservations of the evidence gathered during the said search in respect of smartphone, electronic equipment or email account.<br>17.3.<span style=\"white-space:pre\">	</span>It would be in the interest of all the stakeholders that detailed guidelines are prepared by the police department in relation to the same.<br>17.4.<span style=\"white-space:pre\">	</span>Pending such formulation, it would be required that the following minimum guidelines are implemented:<br>17.5.<span style=\"white-space:pre\">	</span>In the case of a personal computer or a laptop:<br>17.5.1. When carrying out a search of the premises, as regards any electronic equipment, Smartphone or e-mail account, the search team to be accompanied by a qualified Forensic Examiner.<br>17.5.2. When carrying out a search of the premises, the investigating officer should not use the computer or attempt to search a computer for evidence. The usage of the computer and/or search should be conducted by a properly authorized and qualified person, like a properly qualified forensic examiner.<br>17.5.3. At the time of search, the place where the computer is stored or kept is to be photographed in such a manner that all the connections of wires including power, network, etc., are captured in such photograph/s.<br>17.5.4. The front and back of the computer and/or the laptop while connected to all the peripherals to be taken.<br>17.5.5. A diagram should be prepared showing the manner in which the computer and/or the laptop is connected.<br>17.5.6. If the computer or laptop is in the power-off mode, the same should not be powered on.<br>17.5.7. If the computer is powered on and the screen is blank, the mouse could be moved and as and when the image appears on the screen, the photograph of the screen to be taken.<br>17.5.8. If the computer is powered on, the investigating officer should not power off the computer. As far as possible,  the investigating officer to secure the services of a computer forensic examiner to download the  data available in the volatile memory i.e., RAM since the said data would be lost on the powering down of the computer or laptop.<br>17.5.9. If the computer is switched on and connected to a network, the investigating officer to secure the services of a forensic examiner to capture the volatile net work data like IP address, actual net work connections, net work logs, etc.,<br>17.5.10. The MAC address also to be identified and secured.<br>17.5.11. In the unlikely event of the Forensic examiner not being available, then unplug the computer, pack the computer and the wires in separate faraday covers after labeling them.<br>17.5.12. In case of a laptop if the removal of the power cord does not shut down the laptop to locate and remove the battery.<br>17.5.13. If the laptop battery cannot be removed, then shut down the laptop and pack it in a faraday bag so as to block any communication to the said laptop since most of the laptops, nowadays have wireless communication enabled even when the laptop is in the stand by mode.<br>17.6.<span style=\"white-space:pre\">	</span>Seizure of networked devices: Apart from the above steps taken as regards seizure of the computer, laptop, etc., if the said equipment is connected to a network:<br>17.6.1. To ascertain as to whether the said equipment is connected to any remote storage devices or shared network drives, if so to seize the remote storage devices as also the shared network devices.<br>17.6.2. To seize the wireless access points, routers, modems, and any equipment connected to such access points, routers, modems which may some times be hidden.<br>17.6.3. To ascertain if any unsecured wireless network can be accessed from the location. If so identify the same and secure the unsecured wireless devices since the accused might have used the said unsecured wireless devices.<br>17.6.4. To ascertain who is maintaining the network and to identify who is running the network - get all the details relating to the operations of the network and role of the equipment to be seized from such network manager.<br>17.6.5. To obtain from the network manager, network logs of the machine to be searched and/or seized so as to ascertain the access made by the said machine of the net work.<br>17.7.<span style=\"white-space:pre\">	</span>Mobile devices:Mobile devices would mean an include smartphone, mobile phone, tablets GPS units, etc., during the course of seizure of any of the mobile devices, apart from the steps taken in respect of a computer and/or laptop, the following additional steps to be taken:<br>17.7.1. Prevent the device from communicating to network and/or receiving any wireless communication either through wifi or mobile data by packing the same in a faraday bag.<br>17.7.2. Keep the device charged throughout, since if the battery drains out, the data available in the volatile memory could be lost.<br>17.7.3. Look for slim-slots remove the sim card so as to prevent any access to the mobile network, pack the sim card separately in a faraday bag.<br>17.7.4. If the device is in power-off mode, the battery could also be removed and kept separately.<br>17.7.5. If the device is powered on, then put it in an aeroplane mode in android device or airplane mode in a IOS device.<br>17.8.<span style=\"white-space:pre\">	</span>In all the cases above, the seized equipment should be kept as far as possible in a dust- free environment and temperature controlled.<br>17.9.<span style=\"white-space:pre\">	</span>While conducting the search, the investigating officer to seize any electronic storage devices like CD, DVD, Blu-Ray, pen drive, external hard drive, USB thumb drives, solid-state drives etc., located on the premises, label and pack them separately in a faraday bag.<br>17.10. The computers, storage media, laptop, etc., to be kept away from magnets, radio transmitters, police radios etc., since they could have an adverse impact on the data in the said devices.<br>17.11. To carry out a search of the premises to obtain instructions manuals, documentation, etc., as also to ascertain if a password is written down somewhere since many a time person owning equipment would have written the password in a bok, writing pad or the like at the said location.<br>17.12. The entire process and procedure followed to be documented in writing from the time of entry of the investigation/search team into the premises until they exit.<br>18. ANSWER TO POINT NO;11:Whether the order dated 14.09.2020 passed by the Trial Court directing the Petitioner to co-operate with the investigating agency ad provide a password to open the smartphone and email account is proper?<br>18.1.<span style=\"white-space:pre\">	</span>The trial court in the present case has directed the Petitioner accused to co-operate with the Investigating agency and provide the password, passcode for the smartphone, as also for the e-mail account of the Petitioner, I am of the considered opinion that the examination of a smartphone or an e-mail account is in the nature of a search being carried out, such a search cannot be so carried out without a search warrant. The trial Court by merely directing the Petitioner to co-operate with the Investigating agency, the Petitioner cannot be forced or constrained to provide such a password, passcode, biometrics etc., for the purpose of opening of the smartphone and or an e-mail account, much less without recording reasons for the same. The process and procedure as discussed and detailed above would have to be followed.<br>18.2. For all the aforesaid reasons the order dated 14.09.2020 passed by the trial directing the Petitioner to co-operate with the investigating agency and provide a password to open the smartphone and email account is not proper or legal and is therefore set aside. Liberty is, however, reserved to the prosecution to file necessary applications, which would be considered by the trial court in accordance with applicable law and discussion above<br>19. ANSWER TO POINT NO;12: Whether the order dated 23.09.2020 passed by the Trial Court directing the Petitioner to undergo a polygraph test violates the rights of the Petitioner under Article 20 of the Constitution of India?<br>19.1.<span style=\"white-space:pre\">	</span>The Trial Court, by its order dated 29.03.2020, had directed the administration of polygraph test on the Petitioner. This order was passed on an oral request without there being an application filed by the prosecution and no opportunity having been provided to either the Petitioner or his counsel. The Petitioner was also not heard on the same nor was his consent obtained by the trial Court before the order dated 23.09.2020  was passed.<br>19.2.<span style=\"white-space:pre\">	</span>Though it is contended by Sri. Veerana Tigadi learned Special prosecutor that the order date 23.09.202 onlydirected administration of a polygraph test and that no polygraph test would have been administered without the consent of the Petitioner; in my considered opinion, no such order could have been passed without having obtained the consent of an accused like the Petitioner.<br>19.3.<span style=\"white-space:pre\">	</span>In my considered opinion, there is no question of post-decisional hearing or consent, any consent of the accused would have to be obtained by the Court ordering the administration of polygraph test before directing so. The Apex Court in Selvi’s case (supra), the relevant paragraphs which has been extracted hereinabovehas categorically held that there cannot be an administration of a compulsive polygraph test which would also mean that no order for administration of polygraph test made without obtaining the consent of the person on whom it is administered.<br>19.4.<span style=\"white-space:pre\">	</span>Merely because an accused is silent, neither accepts or rejects the administration of polygraph test would also not amount to consent being provided by the accused. Such a consent has to be categorical without any doubt and be made after being informed and made aware of the implication of the polygraph test and effect thereof.<br>19.5.<span style=\"white-space:pre\">	</span>The Judgment of the Apex Court in Selvi’s case is categorical and clear about the aspects of the administration of polygraph test. The details of Law as laid down by the Apex Court in Selvi’s case (supra) would have to be followed by investigating agency, as also by the trial Court.<br>19.6.<span style=\"white-space:pre\">	</span>In the present case, the Petitioner having not consented to administration of a polygraph test and in fact having challenged the same, refusing the administration thereof, had categorically indicated that he does not wish to be subjected to a polygraph test, I am of the considered opinion that no polygraph test could be administered on the Petitioner.<br>19.7. Hence, I answer the above question by holding that no polygraph test can be administered without obtaining the consent of the person to whom the polygraph test is to be administered.<br><span style=\"background-color: rgb(255, 255, 0);\"><b>19.8.An application if any for such polygraph test has to be served on the said person on whom the polygraph test is to be administered, as also on the lawyer of the said person if so appearing. The effect and impact of the polygraph test and any answers given during the conduct of the polygraph test has to be clearly made known to the said person. The consent in writing to be obtained from such person before directing the administration of the polygraph test. Mere silence of the said person would not amount to consent on behalf of such person. If a person were to refuse the administration of polygraph test, no such polygraph test could be administered and even if administered, the result of the said test would be void and cannot be considered by a Court of Law.</b></span><br>20. ANSWER TO POINT NO.:13: Whether the order dated 15.10.2020 passed by the Trial Court dismissing the Recall Application was in accordance with Law?<br>20.1.<span style=\"white-space:pre\">	</span>An application was filed by the accused to recall the order dated 23.09.2020 passed by the trial Court directing the petitioner to undergo a polygraph test.<br>20.2. On account of the answer given to Point No.12 above, I am of the considered opinion that the trial Court ought to have taken into consideration the decision of the Hon’ble Apex Court in Selvi’s case (supra) and once the trial Court had been informed and/or it was brought to the notice of the trial Court that on account of the decision of the Hon’ble Apex Court a polygraph test could not be conducted without a consent of the person who has to be subjected to such a test, the trial Court ought to have recalled its order rather than dismissing the same.<br>21.ANSWER TO POINT NO.13: What order?<br>21.1.<span style=\"white-space:pre\">	</span>In view of the answers to the above question, the petition is partly allowed.<br>21.2.<span style=\"white-space:pre\">	</span>The order dated 14.09.2020 passed by the trial Court, directing the petitioner to furnish the password, passcode or Biometrics of his mobile phone and e-mail account is set-aside.<br>21.3.<span style=\"white-space:pre\">	</span>The order dated 23.09.2020 passed by the trial Court, directing the petitioner to undergo a polygraph test is set-aside. <br>21.4.<span style=\"white-space:pre\">	</span>The order dated 15.10.2020 passed on the recalling application does not survive for consideration.<br>21.5.<span style=\"white-space:pre\">	</span>Parties to bear their respective costs.</h4><p><br></p>', '944ecfcdc968fdc540aafeb45a7a6175.jpeg', 'e07eb1cf3bf4b0f87b196ac79e0a7282.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-22', 1, '', '', '2021-05-05 19:39:51', '2022-12-22 17:02:27');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(736, 'EDakucOoC0QfFxAUZWLHynZTn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'POSCO Act. Statement recorded under Section 164 of Criminal Procedure Code can NOT be considered to be evidence under Section 35 of the POCSO Act. Karnataka High Court. 23 April 2021', '<h4>Hanumantha Mogaveera vs State of Karnataka. </h4><h4>Criminal Petition 2951 of 2020 decided on 23 April 2021.&nbsp;</h4><h4>Justice B.V.Nagarathna and Justice M.G.Uma.&nbsp;</h4><h4>Judgment Link:&nbsp;<a href=\"https://karnatakajudiciary.kar.nic.in/judgements/CrlP_2951_20cw3000.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/CrlP_2951_20cw3000.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: Questions for consideration by the division bench.&nbsp;<br>i) Whether the evidence which has been recorded under Section 164 of Cr.P.C. can be considered to be an evidence under Section 35 of the POCSO Act?<br>ii) If the evidence of the child has not been recorded within a period of thirty days of taking cognizance of the offence, and if the Special Court does not complete the trial within a period of one year from the date of taking cognizance, whether accused is entitled to be released on bail holding that it is a default clause which gives a right to the accused?<br>10. Before venturing to answer the points of Reference, it would be useful to recapulate the relevant clauses from the Convention on the Rights of the Child adopted by the General Assembly of the United Nations in November, 1989 (referred to). </h4><h4>Object of POCSO Act:12. The Scheme of the POCSO Act is also to be deliniated. In a nutshell, the object of the Act is to protect children from the offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.&nbsp;<br>17. A reading of the provisions of the POCSO Act, ...., would clearly indicate that the said Act is a special legislation for the protection of children from offences of sexual assault, harassment and pornography, etc. The POCSO Act being a special piece of legislation must over-ride the general legislation.&nbsp;<br>23. The first point of reference is, whether the statement which has been recorded under Section 164 of Cr.P.C. could be considered to be an evidence under Section 35 of the POCSO Act. In our considered view, the same cannot be equated as one and the same. As already noted, a statement under Section 164 of Cr.P.C. is during the course of investigation or at any time afterwards before the commencement of the trial. But, the evidence recorded before the Special Court under Section 35 of the POCSO Act is during the course of the trial. The two cannot be equated and neither are they on same plane.&nbsp;<br>24. On a reading of sub-section (1) of Section 35 of the POCSO Act, it is observed that there is a mandate for the Special Court to record the evidence of the child within a period of thirty days of taking cognizance of the offence by the Special Court. That is the ideal mandate to be followed. But, if the recording of the evidence does not take place within the stipulated period, it does not mean that the evidence recorded thereafter would lose its sanctity or is to be discarded. This stipulation would imply that recording evidence of the child beyond a period of thirty days from the date of taking cognizance of the offence by the Special Court is not of any lesser sanctity, but if for any reason, the same is not complied with, then it must be recorded by the Special Court. In other words, the reasons must be beyond the control of the Special Court or the reasons were such, which prevented the recording evidence of the child within the stipulated period.&nbsp;<br>25. We have already highlighted the difference between a statement recorded under Section 164 of Cr.P.C. and evidence recorded under sub-section (1) of Section 35 of the POCSO Act. In our view, the recording of statement under Section 164 of Cr.P.C. being prior to the commencement of the trial, it cannot be considered to be evidence under sub-section (1) of Section 35 of the POCSO Act.&nbsp;<br>27. It is therefore observed that the statement recorded under Section 164 of Cr.P.C. made in the course of investigation by the victim child, cannot be considered as evidence recorded under Section 35 of the POCSO Act.&nbsp;<br><b style=\"background-color: rgb(255, 255, 0);\">38. In view of the aforesaid discussion, we answer question No.1 by holding that the statement recorded under Section 164 of Cr.P.C. cannot be considered to be evidence under Section 35 of the POCSO Act.</b><br><b>Relevant Supreme Court decisions</b>: </h4><h4>1. Eera through Dr. Manjula Krippendorf vs. State NCT of Delhi and another [(2017) 15 SCC 133], </h4><h4>2. Alakh Alok Srivastava vs. Union of India &amp; others, [(2020) SCC Online SC 345],</h4><h4>3. In Nipun Saxena &amp; Anr vs. Union of India &amp; others, [(2019) 2 SCC 703], </h4><h4>4. Mahender Chawla &amp; others vs. Union of India &amp; others, [(2018) SCC Online SC 5679], </h4><h4>5. Tahsildar Singh and another vs. State of U.P. (AIR 1959 SC 1012), </h4><h4>6. Rama Kishan Singh vs. Harmit Kaur and another, [AIR 1972 SC 468], </h4><h4>7. Ram Charan vs. State of U.P., [AIR 1968 SC 1270], </h4><h4>8. Balak Ram and another vs. State of U.P., [AIR 1974 SC 2165],</h4><h4>9. Dhanabal and another vs. State of Tamil Nadu, [AIR 1980 SC 628],</h4><h4>10. State of Rajasthan vs. Kartar Singh, [(1971) 1 S.C.R. 56], </h4><h4>11. Somasundaram @ Somu vs. State Reptd. by the Deputy Commissioner of Police, [(2020) 7 SCC 722],</h4><h4>12. George vs. State of Kerala, [(1998) 4 SCC 605],</h4><h4>13. R.Shaji vs. State of Kerala, [(2013) 14 SCC 266],</h4><h4>14. Jogendra Nahak vs. State of Orissa, [(2000) 1 SCC 272], </h4><h4>15. CCE vs. Duncan Agro Industries Limited, [(2000) 7 SCC 53], </h4><h4>16. State of Karnataka, by Nonavinakere Police vs. Shivanna @ Tarkari Shivanna, [(2014) 8 SCC 743], </h4><h4>17. Mamand and others vs. Emperor, [AIR 1946 PC 45],<br></h4><h4><br></h4><h4><b style=\"background-color: rgb(255, 255, 0);\">Note: Answer to second question separately published.&nbsp;</b><br><br><br><br></h4>', '88ce22c49f26709ce3c9c43f69ca0c91.PNG', '95c0661be6e321a423bda2d65ef411ae.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-23', 1, '', '', '2021-05-06 01:48:55', '2021-05-06 01:48:55'),
(737, 'CCJyxPZ5ssf2a8W6overo6TpN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'POSCO Act. Failure to record evidence of the child within thirty days of cognizance and to complete the trial within one year, will NOT entitle accused for default bail. Karnataka High Court. 23 April 2021', '<h4>Hanumantha Mogaveera vs State of Karnataka.</h4><h4>Criminal Petition 2951 of 2020 decided on 23 April 2021.&nbsp;</h4><h4>Justice B.V.Nagarathna and Justice M.G.Uma.&nbsp;</h4><h4>Judgment Link: <a href=\"https://karnatakajudiciary.kar.nic.in/judgements/CrlP_2951_20cw3000.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/CrlP_2951_20cw3000.pdf</a></h4><h4>Relevant paragraphs: Questions for consideration by the division bench.&nbsp;</h4><h4>i) Whether the evidence which has been recorded under Section 164 of Cr.P.C. can be considered to be an evidence under Section 35 of the POCSO Act?</h4><h4>ii) If the evidence of the child has not been recorded within a period of thirty days of taking cognizance of the offence, and if the Special Court does not complete the trial within a period of one year from the date of taking cognizance, whether accused is entitled to be released on bail holding that it is a default clause which gives a right to the accused?</h4><h4>39. As far as the second point of reference is concerned, the same relates to sub-section (2) of Section 35 of the POCSO Act which mandates that the Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence. The reasons for prescribing a period of one year for completion of the trial are not far to see. The main reason being, the victim child must not only be rendered speedy justice but, at the same time, it is necessary to get over the legal proceeding at the earliest, so that the child could concentrate on rehabilitation and get on with his or her life. Prolonging the trial before the Special Court for years together, like any other sessions case, would be futile and frustrate the intention of the parliament as well as the object of POCSO Act.&nbsp; It must be remembered that the object and purpose of the said Act being child-centric, all efforts must be made by all stakeholders under the said Act, including the Special Court, to complete the trial within a period of one year from the date of taking cognizance of the offence under the said Act. But, the Parliament, while having such a noble intention, at the same time, has not lost sight of the reality and technical difficulties faced by criminal courts including<br>the Special Courts, in particular and criminal justice system, in general. Therefore, the use of the expression, \"as far as possible\" in the provision. But, the said expression does not in any way permit any recalcitrant attitude, nor does it countenance a slow and tardy trial or envisage a re-living of the trauma by the victim child for years together. The expression \"as far as possible\", is used by the Parliament, having regard to the genuine difficulties faced in the conclusion of a trial concerning a victim child under the provisions of the POCSO Act. If the evidence of the child is to be recorded within a period of thirty days from the date of taking cognizance of the offence, the trial under the provisions of the POCSO Act being a sessions trial, would mean that all provisions of Cr.P.C. which are not inconsistent with the provisions of the POCSO Act would apply and hence, there may be reasons beyond the control of the Special Court, for not being able to complete the trial under the POCSO Act within a period of one year from the date of taking cognizance of the offence.&nbsp;<br><b style=\"background-color: rgb(255, 255, 0);\">42. It is observed that the object and purpose of Section 35 of the POCSO Act is for the benefit of the child victim and is not to be considered as an additional clause for the purpose of granting bail to the alleged perpetrator or the accused.</b><br>47. In this context, we would refer to a recent decision of the Hon’ble Supreme Court in Varinder Kumar vs. State of Himachal Pradesh, [(2020) 3 SCC 321], (Varinder Kumar), wherein it has been observed that individual rights of the accused as well as the societal interest for bringing the offender to book and for the system to send the right message to all in the society—be it the law-abiding citizen or the potential offender, have to be balanced. “Human Rights” are not only of the accused but also of the victim, the symbolic member of the society.&nbsp; In the aforesaid case, the Hon’ble Supreme court clarified the judgment in Mohan Lal vs. State of Punjab, [(2018) 17 SCC 627], (Mohan Lal), to be effective prospectively from the date of judgment and not being applicable to criminal prosecutions, trials and appeals prior to the law laid down in it. It was observed that the judgment in Mohan Lal cannot also be allowed to become a springboard by an accused for seeking acquittal irrespective of all other considerations pursuant to an investigation and prosecution when the law in that regard was unclear. In Mohan Lal, it was observed that it was impermissible for an informant acting as an investigating officer and it was held to vitiate the conviction irrespective of all other issues. While distinguishing the judgment in Mohan Lal, the Hon’ble Supreme Court observed that the criminal justice delivery system cannot be allowed to veer exclusively for the benefit of the offender making it unidirectional exercise. A proper administration of criminal<br>justice delivery system requires balancing the rights of the accused and the prosecution.&nbsp;<br>48. It would be useful to refer to Arvind Kumar K.S. vs. The State of Karnataka (Criminal Petition No.3672/2020 disposed of on 01.09.2020), wherein it has been held by this Court that the main object of holding trial is to ascertain the truth by the Court by recording&nbsp; evidence, assessing the same in the scale of balance and decide the case on merits. Hence, point of reference No.2 is answered accordingly.&nbsp;<br><b style=\"background-color: rgb(255, 255, 0);\">49. If for reasons beyond the control of the Special Court, the evidence of the child is not recorded within the period of thirty days of the Special Court taking cognizance of the offence, or if the trial itself is not completed within a period of one year from the date of cognizance of the offence, the same cannot lead to the accused being released on bail.</b> The object and purpose of Section 35 of the POCSO Act is to ensure that the victim child is secured from the trauma of trial of the case at the earliest so that she or he could be rehabilitated and reintegrated into society at the earliest. The said provision is not to be interpreted in favour of the accused so as to mandate release of the accused, if for any reason, evidence is not recorded within a period of thirty days of taking cognizance of the offence or the Special Court not completing the trial within a period of one year from the date of taking cognizance of the offence.&nbsp;<br>50. In our view, non-compliance of Section 35 of the POCSO Act cannot be the basis for releasing the accused on bail as that would be a misreading of the provision. One has to bear in mind the fact that the docket explosion under the POCSO Act is not commensurate with the sufficient number of Special Courts being constituted with the requisite human resources as well as infrastructure. It may be practically impossible for the trial court to conclude the trial within one year from the date of cognizance by the said Court in a majority of the cases. But, that does not give a right to the accused to seek bail for the reason that the mandate under Section 35 of the POCSO Act has not been completed.<br><br></h4>', '1ce636edfa63760671323222fa779586.PNG', 'eb6ec6bf4a375c969927de696ed94c41.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-23', 1, '', '', '2021-05-06 03:11:29', '2021-05-05 16:47:10'),
(738, 'Q6JedNmFJv3bfqERDb6QS5Xc8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Supreme Court judgment on Maratha Reservation analysed. Dr. Jaishri Laxmanrao Patil vs The Chief Minister and others, dated 5 May 2021', '<h4>Compiled by: S. Basavaraj, Advocate, Daksha Legal, Bengaluru</h4><h4>Dr. Jaishri Laxmanrao Patil vs The Chief Minister and others. </h4><h4>Civil Appeal 3123 of 2020 decided on 5 May 2021</h4><h4>Justice Ashok Bhushan,J (for himself and Justice S. Abdul Nazeer), Justice L.Nageswara Rao,J. Justice Hemant Gupta,J. and Justice S. Ravindra Bhat. </h4><h4><b style=\"background-color: rgb(255, 255, 0);\">Ratio</b>: Unanimous view on questions 1, 2 and 3 that Indra Sawhney need not be revisited; 50% limit on reservation is constitutionally valid and Maratha reservation does not fall under exceptional category and hence unconstitutional. On questions 4, 5 and 6, Justice Ashok Bhushan,J and Justice S. Abdul Nazeer opine that both Central and State Government can prepare lists of Socially and Economically Backward classes. However, the majority view of Justice Ravindra Bhat, Justice L. Nageswara Rao and Justice Hemant Gupta opine that only the Centre has the power to prepare the list and the State Governments have no power.&nbsp; States can only make suggestions in this regard.</h4><h4>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2019/23618/23618_2019_35_1501_27992_Judgement_05-May-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/23618/23618_2019_35_1501_27992_Judgement_05-May-2021.pdf</a></h4><h4><b style=\"\"><span style=\"background-color: rgb(255, 255, 0);\">Questions framed: </span></b>Question 1. Whether judgment in case of Indra Sawhney v. Union of India needs to be referred to larger bench or require re-look by the larger bench in the light of subsequent Constitutional Amendments, judgments and changed social dynamics of the society etc.?<br>Question 2. Whether Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney’s case?<br>Question 3. Whether the State Government on the strength of Maharashtra State Backward Commission Report chaired by M.C. Gaikwad has out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the 12 exception carved out in the judgment of Indra Sawhney?<br>Question 4. Whether the Constitution 102nd deprives the State Legislature of its power to enact a legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power?<br>Question 5. Whether States power to legislate in relation to “any backward class” under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26c) of the Constitution of India?<br>Question 6. Whether, Article 342A of the Constitution abrogates States power to legislate or classify in respect of “any backward class of citizens” and thereby affects the federal policy / structure of the Constitution of India?”</h4><h4><span style=\"font-size: 1.3125rem;\">Relevant paragraphs.&nbsp;</span>Majority Judgment Justice Ashok Bhushan,J. (for himself and S. Abdul Nazeer, J.), L.Nageswara Rao,J. Hemant Gupta,J. and S. Ravindra Bhat have also concurred on Question Nos. 1, 2 and 3.</h4><h4>Regarding Indra Sawhney 129…. ratio of judgment of Indra Sawhney as expressed by the majority is one which is expressed in paragraphs 809 and 810 of the judgment of Justice B.P. Jeevan Reddy.<br>129....The majority opinion of Indra Sawhney is that normally reservation should not exceed 50% and it is only in extra-ordinary circumstances it can exceed 50%. What can be the extra-ordinary circumstances have been indicated in paragraph 810.<br>131. Indraw Sawhney analysed.:<br>(i) Reservation under Article 16(4) should not exceed 50%.<br>(ii) For exceeding reservation beyond 50% extraordinary circumstance as indicated in paragraph 810 of the judgment of Justice Jeevan Reddy should exist, for which extreme caution is to be exercised.<br>132. The above is the ratio of Indra Sawhney judgment.<br>133. We do not find any good ground to revisit Indra Sawhney or to refer the same to a larger Bench on the above ground urged.<br>159....we proceed on the premise that Article 16(4) is not an exception to Article 16(1).<br>161……We need to answer the question from where does 50% rule come from?<br>162….. Indra Sawhney itself gives answer of the question<br>174.. Article 16(4B).... , the Constitutional Amendment in fact recognize the 50 percent ceiling which was approved in Indra Sawhney’s case and on the basis of above Constitutional Amendment, no case has been made out to revisit Indra Sawhney.<br>162.....In paragraph 807 of Indra Sawhney held that what is more reasonable than to say that reservation under clause (4) shall not exceed 50% of the appointment.?<br>162...50% has been said to be reasonable and it is to attain the objective of equality.<br>164. To change the 50% limit is to have a society which is not founded on equality but based on caste rule.<br>164.....If the reservation goes above 50% limit, which is a reasonable, it will be slippery slope, the political pressure, make it hardly to reduce the same.<br>164....Thus, answer to the question posed is that the percentage of 50% has been arrived at on the principle of reasonability and achieves equality as enshrined by Article 14 of which Articles 15 and 16 are facets.<br>174. The judgment of Indra Sawhney is being followed for more than a quarter century without there being any doubt raised in any of the judgments about the 50%, the 50% rule has been repeatedly followed.<br>214. We thus are of the view that extraordinary situations indicated in paragraph 810 are only illustrative and not exhaustive but paragraph 810 gives an indication as to which may fit in extra ordinary situation.<br>214..... The judgment of Indra Sawhney has been repeatedly followed by this Court and has received approval by at least four Constitution Benches of this Court as noted above.<br>214....We also follow and reiterate the prepositions as laid down by this Court in Indra Sawhney in paragraphs 809 and 810. We further observe that ratio of judgment of Indra Sawhney is fully applicable in context of Article 15 of the Constitution.<br>245. In view of the foregoing discussion, we are of the considered opinion that neither the Gaikwad Commission\'s report nor the judgment of the High Court has made out an extra-ordinary situation in the case of Maratha where ceiling of 50% can be exceeded.<br>256. We have found that no extraordinary circumstances were made out in granting separate reservation of Maratha Community by exceeding the 50 percent ceiling limit of reservation. The Act, 2018 violates the principle of equality as enshrined in Article 16.<br>256....The exceeding of ceiling limit without there being any exceptional circumstances clearly violates Article 14 and 16 of the Constitution which makes the enactment ultra vires.<br>257. We thus conclude that the Act, 2018 as amended in 2019, granting separate reservation for Maratha community has not made out any exceptional circumstances to exceed the ceiling of 50 percent reservation.<br>292…..When we calculate the percentage of Maratha representation out of the open category filled post, percentage comes out to 33.23 percent. Thus, the correct percentage of Maratha out of the open category post is 33.23 percent which indicates that more than 33 percent of the open category post has been bagged by Maratha.<br>305. Indra Sawhney has categorically held that what is required by the State for providing reservation under Article 16(4) is not proportionate representation but adequate representation.<br>306…..We thus hold that Maratha class was not entitled for any reservation under Article 16(4) and grant of reservation under Article 16(4) is unconstitutional and cannot be sustained.<br>327. We have completed more than 70 years of independence, all governments have been making efforts and taking measures for overall developments of all classes and communities.<br>327....There is a presumption unless rebutted that all communities and castes have marched towards advancement.<br>328. We are constrained to observe that when more people aspire for backwardness instead of forwardness, the country itself stagnates which situation is not in accord with constitutional objectives.<br>Para 444. Conclusions:<br>&nbsp;(1) The greatest common measure of agreement in six separate judgments delivered in Indra Sawhney is: (i)Reservation under Article 16(4) should not exceed 50%. (ii)For exceeding reservation beyond 50%, extra-ordinary circumstances as indicated in paragraph 810 of Justice Jeevan Reddy should exist for which extreme caution is to be exercised.<br>&nbsp;(2) The 50% rule spoken in Balaji and affirmed in Indra Sawhney is to fulfill the objective of equality as engrafted in Article 14 of which Articles 15 and 16 are facets. 50% is reasonable and it is to attain the object of equality. To change the 50% limit is to have a society which is not founded on equality but based on caste rule.<br>(3) The cap on percentage of reservation as has been laid down in Indra Sawhney is with the object of striking a balance between the rights under Article 15(1) and 15(4) as well as Articles 16(1) and 16(4) . The cap on percentage is to achieve principle of equality and with the object to strike a balance which cannot be said to be arbitrary or unreasonable.<br>(4) Providing reservation for advancement of any socially and educationally backward class in public services is not the only means and method for improving the welfare of backward class. The State ought to bring other measures including providing educational facilities to the members of backward class free of cost giving concession in fee, providing opportunities for skill development to enable the candidates from the backward class to be self-reliant.<br>(5) There can be no quarrel that society changes, law changes, people changes but that does not mean that something which is good and proven to be beneficial in maintaining equality in the society should also be changed in the name of change alone.<br>(6) When Indra Sawhney held that 50% is upper limit of reservation under Article 16(4), it is the law which is binding under Article 141 and to be implemented.<br>(7) Indra Sawhney is also fully applicable in reference to Article 15(4) of the Constitution of India.<br>(8) ...The judgment of T.M.A. Pai was in reference to rights of minority under Article 30 and is not relevant for reservation under Articles 16(4) and 15(4) of the Constitution.<br>(9) The Constitution (Eighty-first Amendment) Act, 2000 by which sub-clause (4B) was inserted in Article 16 makes it clear that ceiling of 50% “has now received constitutional recognition”.<br>(10) We fully endorse that extraordinary situations indicated in paragraph 810 (Indra) were only illustrative and cannot be said to be exhaustive. We do not agree that paragraph 810 provided only a geographical test. The use of expression “on being out of the main stream of national life”, is a social test, which also needs to be fulfilled for a case to be covered by exception.<br>(11) We do not find any substance for revisiting and referring the judgment of Indra Sawhney to a larger Bench.<br>12...The judgment of Indra Sawhney has stood the test of the time and has never been doubted by any judgment of this Court.<br>(13) The Constitution Bench in M. Nagaraj does not contain any ratio that ceiling of 50% reservation may be exceeded by showing quantifiable contemporary data relating to backwardness.<br>(14)...Maratha reservation ...is not covered under the parameters indicated in Indra Sawhney’s case as extra-ordinary circumstance to breach 50% ceiling.<br>(15)....The Act, 2018 violates the principle of equality as enshrined in Article 16. The exceeding of ceiling limit without there being any extra-ordinary circumstances clearly violates Article 14 and 16 of the Constitution which makes the enactment ultra vires.<br>The proposition is well settled that Commissions’ reports are to be looked into with deference. However, one of the parameter of scrutiny of Commission’s report as approved by this Court is that on the basis of data and materials referred to in the report whether conclusions arrived by the Commission are justified.<br>(17).....The scrutiny of measures taken by the State, either executive or legislative, thus, has to pass test of the constitutional scrutiny<br>(18) The word ‘adequate’ is a relative term used in relation to representation of different caste and communities in public employment. The objective of Article 16(4) is that backward class should also be put in main stream to enable to share power of the State by affirmative action.<br>(19).....The representation of Marathas in public services in Grade A, B, C and D comes to 33.23%, 29.03%, 37.06% and 36.53% computed from out of the open category filled posts, is adequate and satisfactory representation of Maratha community.<br>(20)...... Indra Sawhney has categorically held that what is required by the State for providing reservation under Article 16(4) is not proportionate representation but adequate representation.<br>(21) The constitutional precondition as mandated by Article 16(4) being not fulfilled with regard to Maratha class, both the Gaikwad Commission’s report and consequential legislation are unsustainable.<br>(22).....Sufficient and adequate representation of Maratha community in public services is indicator that they are not socially and educationally backward.<br>(23) The elementary principle of interpreting the Constitution or statute is to look into the words used in the statute, when the language is clear, the intention of the Legislature is to be gathered from the language used.<br>(24)The shift from literal rule to purposive and objective interpretation of a constitutional document is adopted since the Constitution is not to be interpreted in static and rigid manner, the Constitution is an organic and living document which needs to be interpreted with cardinal principals and objectives of the Constitution.<br>(25)...Parliamentary Committee reports including speech given by the Minister in the Parliament are relevant materials to ascertain the intention of Parliament while construing constitutional provisions.<br>(26) The consultation by the State on all policy matters affecting the socially and educationally backward classes is now mandatory as per subclause (9) of Article 338B.<br>(27) ....Intention of the Parliament for bringing Constitutional amendment was not to take away the power of the State to identify backward class in the State.<br>(28).....we see no reason not to interpret Article 342A in manner as per the intention of the Parliament noticed above.<br>(29) ….Word ‘Central’ in Article 342A (2) was used for purpose and object. The use of ‘Central’ was only with the intent to limit the list issued by the President to Central services.<br>(30)......list of backward classes which is not Central List shall not be governed by the definition under Article 366(26C).<br>(31)....Article 342A was brought by Constitution 102nd Amendment to give constitutional status to National Backward Classes Commission and for publication of list by the President of socially and educationally backward classes which was to be Central List for governing employment under Government of India and the organisations under it.<br>(32) The Constitution 102nd Amendment Act, 2018 does not violate any basic feature of the Constitution. We uphold the constitutional validity of Constitution (One Hundred and second Amendment) Act, 2018.<br>ORDER<br>1. Section 2(j) of the Act, 2018 insofar as it declares Maratha community Educationally and Socially Backward Category is held to be ultra vires to the Constitution and struck down.<br>2. Section 4(1)(a) of Act, 2018 as amended by Act, 2019 insofar as it grants reservation under Article 15(4) to the extent of 12% of total seats in educational institutions including private institutions whether aided or unaided by the State, other than minority educational institutions, is declared ultra vires to the Constitution and struck down.<br>3. Section 4(1)(b) of Act, 2018 as amended by Act, 2019 granting reservation of 13% to the Maratha community of the total appointments in direct recruitment in public services and posts under the State, is held to be ultra vires to the Constitution and struck down.<br>4. ...Students who have already been admitted in Postgraduate Medical Courses prior to 09.09.2020 shall be allowed to continue.<br>5....Admissions and appointments till 09.09.2020&nbsp; are saved. no further benefit can be claimed by such Maratha students admitted in different course or Maratha students who were appointed in public services in the State under Act, 2018<br>6. After the order was passed on 09.09.2020 neither any admission can be taken in the educational institutions nor any appointment can be made in public services and posts in accordance with Act, 2018.<br>Justice L. Nageswara Rao .....I am in agreement with the opinion of Justice Ashok Bhushan in respect of question Nos.1, 2 and 3. As these issues have been dealt with exhaustively by Justice Ashok Bhushan, I do not have anything further to add. Question Nos.4, 5 and 6 pertain to the interpretation of Article 342 A of the Constitution of India. On these questions, I am unable to persuade myself to accept the conclusion reached by Justice Ashok Bhushan. I agree with the denouement of the judgment of Justice S. Ravindra Bhat on issue Nos.4, 5 and 6.<br>Justice Hemant Gupta&nbsp; I am in agreement with the reasoning and the conclusion on the Question Nos. 1, 2 and 3 in the judgment rendered by Hon’ble Shri Ashok Bhushan, J., as well as additional reasons recorded by Hon’ble Shri S. Ravindra Bhat, J. and by Hon’ble Shri L. Nageswara Rao, J. I entirely agree with the reasoning and the conclusions in the Judgment and order authored by Hon’ble Shri S. Ravindra Bhat, J. and Hon’ble Shri L. Nageswara Rao, J. on Question Nos. 4, 5 and 6.<br>Justice S. Ravindra Bhat 1: Indra Sawhney (supra) does not require to be referred to a larger bench nor does it require reconsideration in the light of subsequent constitutional amendments, judgments and changed social dynamics of the society.<br>2. The Act, 2018 as amended in 2019 ….is not covered by exceptional circumstances as 130 contemplated by Constitution Bench in Indra Sawhney’s case. I agree with the reasoning and conclusions of Ashok Bhushan, J. on this point.<br>3....I agree with Ashok Bhushan, J. that the State Government, on the strength of Maharashtra State Backward Commission Report chaired by M.C. Gaikwad has not made out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the exception carved out in Indra Sawhney.<br>The President alone, to the exclusion of all other authorities, is empowered to identify SEBCs and include them in a list to be published under Article 342A (1), which shall be deemed to include SEBCs in relation to each state and union territory for the purposes of the Constitution.<br>The states can, through their existing mechanisms, or even statutory commissions, only make suggestions to the President or the Commission under Article 338B, for inclusion, exclusion or modification of castes or communities, in the list to be published under Article 342A (1)<br>Central List in Article 342A (2) is the one notified by the President under Article 342A (1). It is to be the only list for all 131 purposes of the Constitution, in relation to each state and in relation to every union territory.Central List in Article 342A (2) is the one notified by the President under Article 342A (1). It is to be the only list for all 131 purposes of the Constitution, in relation to each state and in relation to every union territory.<br>In the task of identification of SEBCs, the President shall be guided by the Commission set up under Article 338B; its advice shall also be sought by the state in regard to policies that might be framed by it.<br>The states’ power to make reservations, in favour of particular communities or castes, the quantum of reservations, the nature of benefits and the kind of reservations, and all other matters falling within the ambit of Articles 15 and 16 – except with respect to identification of SEBCs, remains undisturbed.<br>The Commission set up under Article 338B shall conclude its task expeditiously, and make its recommendations after considering which, the President shall expeditiously publish the notification containing the list of SEBCs in relation to states and union territories, for the purpose of the Constitution.<br>Till the publication of the notification mentioned in direction (vi), the existing lists operating in all states and union territories, and for the purposes of the Central Government and central institutions, continue to operate. This direction is issued under Article 142 of the Constitution of India.<br>Article 342A of the Constitution by denuding States power to legislate or classify in respect of “any backward class of citizens” does not affect or damage the federal polity and does not violate the basic structure of the Constitution of India.<br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br></h4><p><br></p>', '81a4991d7449b6eaba0dee19f585e68e.PNG', '8a503c74aacaf80a2205691192a6e0ec.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-05', 1, '', '', '2021-05-06 20:00:35', '2021-05-06 20:17:35'),
(739, 'vRG7dIqq0FWsZ7Xskuv5I2tWH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Without Prejudice in correspondences is part of public policy to encourage negotiated settlement of disputes. Its applicability is limited to pre-litigation stage and does not cover pleadings before court. Karnataka High Court. 6 May 2021', '<h4>R.Subbarao Maney by lrs vs B.C. Murthy Kumar. </h4><h4>Regular First Appeal 2047 of 2010 decided on 6 May 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380774/1/RFA2047-10-06-05-2021%20%281%29.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380774/1/RFA2047-10-06-05-2021%20%281%29.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: The judgment of the learned XXVI Additional City Civil and Sessions Judge at Mayo Hall, Bangalore (CCH 20) dated 11.11.2010 in O.S.No.15279/2004 dismissing the suit of the plaintiff is under challenge in this appeal. The plaintiff is the appellant herein. Defendant is the respondent. The plaintiff instituted O.S.No.15279/2004 against the defendant before the Court below for recovery of a sum of Rs.4,00,170/- with interest at the rate of 12% p.a. from the date of filing the suit till the date of realization and costs. <br>7. The learned trial Judge on appreciation of the evidence has held that plaintiff has failed to prove his case and it was merely oath against oath and  accordingly  the  suit was dismissed with costs.<br>14. ...though the defendant has denied running chit groups and further, receiving any amount from the plaintiff by way of subscription to the chit groups, he has not at all denied monetary transaction between himself and the plaintiff.</h4><h4>17....a case not specifically pleaded can be considered  by  the  court  only where the pleadings in substance, though not in specific terms, contain the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the  basis  that  such  case  was  at issue and had  led  evidence  thereon.  As  the  very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and  that  the  parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied  that  such  case  was  at  issue,  the question of resorting to the exception to  the  general rule does not arise. The principles laid down in Bhagwati Prasad [AIR 1966 SC 735] and Ram  Sarup  Gupta [(1987)  2  SCC  555  :  AIR 1987   SC   1242]   ..  and   several other decisions of this Court following the same cannot be construed as diluting the well-settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of  arguments by contending that the pleadings and issues are sufficient to make out a particular case  and  that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo motu.<br>22. Now, in the backdrop of the law enunciated by the Hon’ble Supreme Court, could it be said, as contended by Sri. Khan, learned counsel, that defendant was “prejudiced” in this case? Now, the “prejudice” is a  question of fact particular to each case. There cannot be a general and omnibus rule regarding  what  causes “prejudice” to a defendant in  individual  cases.  Does  the law – and in this particular case C.P.C. – “require a magic incantation which can only be expressed  in  a  set  formula of words. What we have to see is whether the substance of the requirements is there”. Coming back to this case, grievance made out is, since the suit claim is founded  on chit transaction and that chit transaction not having been proved, Court should not find a new case on the basis of money transaction and grant relief on the said basis. The question really is one of how the parties have understood  the rival case ? “The Civil Procedure Code is an elaborate codification of the principles of natural  justice  to  be applied to civil litigation”. [per R.V.  Raveendran,  J,  para 11, (2008) 17 SCC 491]. In this  case  parties  have  completely understood the nature of the transaction, more particularly the defendant. Plaintiff has furnished the  details of payment made by him to defendant in his pleadings; defendant has filed his written  statement,  parties have gone to trial fully on  that  basis,  produced  their bank account extracts as already discussed and, therefore, it cannot be said that  defendant  has  suffered  any “prejudice” or was “taken by surprise” on account of variance in the nature of transaction made out during the trial. Objection, therefore, is only one of ‘form’ and not of ‘substance’ and accordingly, deserves to be rejected.<br>23. Next question that requires to be considered is the effect of para 10 of the written statement which is hedged by “without prejudice” and therefore can the defendant wriggle out of certain statements made regarding mode of payment to plaintiff claimed by him ? Authorities on the subject clearly say ‘no’. He is bound by the said statement. “Without prejudice rule” offers him no asylum.<br>24. “Without prejudice rule” is a rule of hoary lineage. Eminent law Lords have  pronounced  on  this  vexed rule often with a tone of exasperation. But if there  was unanimity on any one aspect among them, it is this  that the rule is based on sound public policy and the  salutary object underlying this rule is to encourage and facilitate parties to seek negotiated settlement of disputes without recourse to Court and unless some protection is given to the parties for stating their mutual position they  will be inhibited from placing their cards on the table lest what they have disclosed during negotiation might be used against them as evidence. “The guiding principle is that parties should be encouraged so far as possible to resolve their dispute without resort to litigation, and that they should not be discouraged by the knowledge that anything that is said in the course of such negotiations may be used  to their prejudice in the course of proceedings”. [Lord Hope of Craighead, at para 24, Bradford & Bingley v. Rashid (2006) All.E.R. 705]<br>25. It can, therefore, be taken as fairly well settled that “without prejudice rule” is a part of public policy and the same is sanctified almost to a rule of law to encourage negotiated settlements of legal disputes and, therefore, its applicability is limited to the stage before parties knock at the doors of the Court. Even during the negotiation stage before the litigation commences, the judicial opinions have been divergent on the extent of applicability of this rule. English authorities referred to in Bradford & Bingley case (2006) All.E.R. 705 have sometimes taken the view that if  a clear statement is made during the course of negotiations even after prefacing such statements  as  “without  prejudice” such clear statements are not afforded the beneficial protection under the said rule. It may be added that the decision of the House of Lords in Bradford & Bingley case has been approvingly quoted by the Hon’ble Supreme Court in ITC Limited v. Blue Coast Hotels Ltd. (2018) 15 SCC 99.<br>26.<span style=\"white-space:pre\">	</span>Says Hon’ble Supreme Court :<br>“33. Much was sought to be made of the words “without prejudice” in the letter containing the undertaking that if the debt was not paid, the creditor could take over  the  secured assets. The  submission  on  behalf  of  the debtor that the letter of undertaking was given in the course of negotiations and cannot  be held to be an evidence of the acknowledgement of liability of the  debtor, apart from being untenable in law,  reiterates the attempt to evade liability and must be rejected. The submission that the letter was written without prejudice to the legal rights and remedies available under any  law  and  therefore the acknowledgement or the undertaking has no legal effect  must  likewise  be rejected. This letter is reminiscent of a letter that fell for consideration in Spencer’s case as pointed out by Mr. Harish Salve, “as a rule the debtor who writes such letters has no intention to bind himself further than is bound already, no intention of paying so long as he can avoid payment, and nothing before his mind but a desire, somehow or other, to gain time and avert pressure.” It was argued in a subsequent case that an acknowledgment made “without prejudice” in the case of negotiations cannot be used as evidence of anything expressly or impliedly admitted. The House of Lords observed as follows: (WLR p. 2072, para 16)<br>“16. .... But when a statement is used as acknowledgement for the purpose of s. 29 (5), it is not being used as evidence of anything. The statement is not an evidence of an acknowledgement. It is the acknowledgement.” Therefore, the “without prejudices” rule could have no application. It said: (WLR p 2091, para 83)<br> “83. Here, the [respondent], Mr. Rashid was not offering any concession. On the contrary, he was seeking one in respect of an undisputed debt. Neither an offer of  payment nor actual payment ”<br>We, thus, find that the mere introduction of the words “without prejudice” have no significance and the debtor clearly acknowledged the debt even after action was initiated under the Act and even after payment of a smaller sum, the debtor has consistently refused to pay up”.<br>27. In this case, the statement made by the  defendant at para 10 of the written statement about his having withdrawn amounts from his Bank account and thereafter having made such payments to the plaintiff on numerous occasions is not during the course of  negotiations, but it is after the litigation has commenced  and in the written statement filed by him  in  response to  the suit claim. It is therefore clear that the said portion of the statement made by the defendant cannot get the beneficial protection under the “without prejudice rule” and as already noticed, the defendant has  not  produced  any semblance of proof to support the said contention. In that view of the matter, the statement made by the defendant in para 10 of the written statement is not entitled to the protection of “without prejudice rule”.<br>28. In view of the above discussion, resultant position is, plaintiff is entitled to a decree of Rs.1,49,700/- (Rs.2,49,700/- (-) Rs.99,500/-) with  interest  thereon  at 9% per annum from the date of the suit till the date of payment.<br>Appeal is accordingly allowed in part.<br>The judgment  and  decree  dated  11.11.2010  passed  in O.S. No. 15279/2004 by the XXVI-Additional City Civil Judge, Mayo Hall,  Bangalore,  is  set  aside.  Defendant  shall pay a sum of Rs.1,49,700/- to the plaintiff with  interest thereon at 9% per annum from the date of the suit till the date of payment within a  period  of  one  month  from the date of receipt of certified copy of the judgment. On failure to do so, he shall be liable to pay interest at the rate of 12% per annum thereafter, till the date of payment of the decreetal amount.<br><br>Sd/- JUDGE<br>Mgn/-</h4><div><br></div>', '4c24ea3f79d46f22402ee4d79659f7cd.jpg', 'ebe4f7d973f370947551bb1ff6d386f7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-06', 1, '', '', '2021-05-07 03:59:55', '2021-05-07 04:01:39');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(740, '2pLFy6sQP37xjsPRtcxbCZw2g', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. A case not specifically pleaded can be considered by the Court where pleadings in substance make out a particular case and the issues framed, evidence led also generally cover the question involved. Kar HC. 6:5:2021', '<h4>R.Subbarao Maney by lrs vs B.C. Murthy Kumar.<br>Regular First Appeal 2047 of 2010 decided on 6 May 2021.<br>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380774/1/RFA2047-10-06-05-2021%20%281%29.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380774/1/RFA2047-10-06-05-2021%20%281%29.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraph</span>s: The judgment of the learned XXVI Additional City Civil and Sessions Judge at Mayo Hall, Bangalore (CCH 20) dated 11.11.2010 in O.S.No.15279/2004 dismissing the suit of the plaintiff is under challenge in this appeal. The plaintiff is the appellant herein. Defendant is the respondent. The plaintiff instituted O.S.No.15279/2004 against the defendant before the Court below for recovery of a sum of Rs.4,00,170/- with interest at the rate of 12% p.a. from the date of filing the suit till the date of realization and costs. <br>7. The learned trial Judge on appreciation of the evidence has held that plaintiff has failed to prove his case and it was merely oath against oath and  accordingly  the  suit was dismissed with costs.<br>14. ...though the defendant has denied running chit groups and further, receiving any amount from the plaintiff by way of subscription to the chit groups, he has not at all denied monetary transaction between himself and the plaintiff.<br>17....a case not specifically pleaded can be considered  by  the  court  only where the pleadings in substance, though not in specific terms, contain the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the  basis  that  such  case  was  at issue and had  led  evidence  thereon.  As  the  very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and  that  the  parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied  that  such  case  was  at  issue,  the question of resorting to the exception to  the  general rule does not arise. The principles laid down in Bhagwati Prasad [AIR 1966 SC 735] and Ram  Sarup  Gupta [(1987)  2  SCC  555  :  AIR 1987   SC   1242]   ..  and   several other decisions of this Court following the same cannot be construed as diluting the well-settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of  arguments by contending that the pleadings and issues are sufficient to make out a particular case  and  that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo motu.<br>22. Now, in the backdrop of the law enunciated by the Hon’ble Supreme Court, could it be said, as contended by Sri. Khan, learned counsel, that defendant was “prejudiced” in this case? Now, the “prejudice” is a  question of fact particular to each case. There cannot be a general and omnibus rule regarding  what  causes “prejudice” to a defendant in  individual  cases.  Does  the law – and in this particular case C.P.C. – “require a magic incantation which can only be expressed  in  a  set  formula of words. What we have to see is whether the substance of the requirements is there”. Coming back to this case, grievance made out is, since the suit claim is founded  on chit transaction and that chit transaction not having been proved, Court should not find a new case on the basis of money transaction and grant relief on the said basis. The question really is one of how the parties have understood  the rival case ? “The Civil Procedure Code is an elaborate codification of the principles of natural  justice  to  be applied to civil litigation”. [per R.V.  Raveendran,  J,  para 11, (2008) 17 SCC 491]. In this  case  parties  have  completely understood the nature of the transaction, more particularly the defendant. Plaintiff has furnished the  details of payment made by him to defendant in his pleadings; defendant has filed his written  statement,  parties have gone to trial fully on  that  basis,  produced  their bank account extracts as already discussed and, therefore, it cannot be said that  defendant  has  suffered  any “prejudice” or was “taken by surprise” on account of variance in the nature of transaction made out during the trial. Objection, therefore, is only one of ‘form’ and not of ‘substance’ and accordingly, deserves to be rejected.<br>23. Next question that requires to be considered is the effect of para 10 of the written statement which is hedged by “without prejudice” and therefore can the defendant wriggle out of certain statements made regarding mode of payment to plaintiff claimed by him ? Authorities on the subject clearly say ‘no’. He is bound by the said statement. “Without prejudice rule” offers him no asylum.<br>24. “Without prejudice rule” is a rule of hoary lineage. Eminent law Lords have  pronounced  on  this  vexed rule often with a tone of exasperation. But if there  was unanimity on any one aspect among them, it is this  that the rule is based on sound public policy and the  salutary object underlying this rule is to encourage and facilitate parties to seek negotiated settlement of disputes without recourse to Court and unless some protection is given to the parties for stating their mutual position they  will be inhibited from placing their cards on the table lest what they have disclosed during negotiation might be used against them as evidence. “The guiding principle is that parties should be encouraged so far as possible to resolve their dispute without resort to litigation, and that they should not be discouraged by the knowledge that anything that is said in the course of such negotiations may be used  to their prejudice in the course of proceedings”. [Lord Hope of Craighead, at para 24, Bradford & Bingley v. Rashid (2006) All.E.R. 705]<br>25. It can, therefore, be taken as fairly well settled that “without prejudice rule” is a part of public policy and the same is sanctified almost to a rule of law to encourage negotiated settlements of legal disputes and, therefore, its applicability is limited to the stage before parties knock at the doors of the Court. Even during the negotiation stage before the litigation commences, the judicial opinions have been divergent on the extent of applicability of this rule. English authorities referred to in Bradford & Bingley case (2006) All.E.R. 705 have sometimes taken the view that if  a clear statement is made during the course of negotiations even after prefacing such statements  as  “without  prejudice” such clear statements are not afforded the beneficial protection under the said rule. It may be added that the decision of the House of Lords in Bradford & Bingley case has been approvingly quoted by the Hon’ble Supreme Court in ITC Limited v. Blue Coast Hotels Ltd. (2018) 15 SCC 99.<br>26.<span style=\"white-space:pre\">	</span>Says Hon’ble Supreme Court :<br>“33. Much was sought to be made of the words “without prejudice” in the letter containing the undertaking that if the debt was not paid, the creditor could take over  the  secured assets. The  submission  on  behalf  of  the debtor that the letter of undertaking was given in the course of negotiations and cannot  be held to be an evidence of the acknowledgement of liability of the  debtor, apart from being untenable in law,  reiterates the attempt to evade liability and must be rejected. The submission that the letter was written without prejudice to the legal rights and remedies available under any  law  and  therefore the acknowledgement or the undertaking has no legal effect  must  likewise  be rejected. This letter is reminiscent of a letter that fell for consideration in Spencer’s case as pointed out by Mr. Harish Salve, “as a rule the debtor who writes such letters has no intention to bind himself further than is bound already, no intention of paying so long as he can avoid payment, and nothing before his mind but a desire, somehow or other, to gain time and avert pressure.” It was argued in a subsequent case that an acknowledgment made “without prejudice” in the case of negotiations cannot be used as evidence of anything expressly or impliedly admitted. The House of Lords observed as follows: (WLR p. 2072, para 16)<br>“16. .... But when a statement is used as acknowledgement for the purpose of s. 29 (5), it is not being used as evidence of anything. The statement is not an evidence of an acknowledgement. It is the acknowledgement.” Therefore, the “without prejudices” rule could have no application. It said: (WLR p 2091, para 83)<br> “83. Here, the [respondent], Mr. Rashid was not offering any concession. On the contrary, he was seeking one in respect of an undisputed debt. Neither an offer of  payment nor actual payment ”<br>We, thus, find that the mere introduction of the words “without prejudice” have no significance and the debtor clearly acknowledged the debt even after action was initiated under the Act and even after payment of a smaller sum, the debtor has consistently refused to pay up”.<br>27. In this case, the statement made by the  defendant at para 10 of the written statement about his having withdrawn amounts from his Bank account and thereafter having made such payments to the plaintiff on numerous occasions is not during the course of  negotiations, but it is after the litigation has commenced  and in the written statement filed by him  in  response to  the suit claim. It is therefore clear that the said portion of the statement made by the defendant cannot get the beneficial protection under the “without prejudice rule” and as already noticed, the defendant has  not  produced  any semblance of proof to support the said contention. In that view of the matter, the statement made by the defendant in para 10 of the written statement is not entitled to the protection of “without prejudice rule”.<br>28. In view of the above discussion, resultant position is, plaintiff is entitled to a decree of Rs.1,49,700/- (Rs.2,49,700/- (-) Rs.99,500/-) with  interest  thereon  at 9% per annum from the date of the suit till the date of payment.<br>Appeal is accordingly allowed in part.<br>The judgment  and  decree  dated  11.11.2010  passed  in O.S. No. 15279/2004 by the XXVI-Additional City Civil Judge, Mayo Hall,  Bangalore,  is  set  aside.  Defendant  shall pay a sum of Rs.1,49,700/- to the plaintiff with  interest thereon at 9% per annum from the date of the suit till the date of payment within a  period  of  one  month  from the date of receipt of certified copy of the judgment. On failure to do so, he shall be liable to pay interest at the rate of 12% per annum thereafter, till the date of payment of the decreetal amount.<br>Sd/- JUDGE<br>Mgn/-</h4>', '6d8bc425b5d3c4b703cf3e552a7b2f4b.jpg', '3defdcaf1fdf857aeed046a4fd72474b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-06', 1, '', '', '2021-05-07 04:32:37', '2021-05-07 04:37:21'),
(741, '7Om5KCY1Umf854g7BXOqqN3Vk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Supreme Court terms Madras High Court murder remark on Election Commission as harsh and inappropriate. Emphasizes need for judges to exercise caution in off-the-cuff remarks in open court. 6 May 2021', '<h4>The Chief Election Commissioner of India vs M.R. Vijayabhaskar and others. </h4><h4>Civil Appeal No. 1767 of 2021 decided on 6 May 2021<br>Justice Dr Dhananjaya Y Chandrachud and Justice M R Shah<br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/11474/11474_2021_35_1502_27915_Judgement_06-May-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/11474/11474_2021_35_1502_27915_Judgement_06-May-2021.pdf</a><br><b>C.1 Open Courts and the Indian Judiciary </b><br>19 Courts must be open both in the physical and metaphorical sense. Save and except for in-camera proceedings in an exceptional category of cases, such as cases involving child sexual abuse or matrimonial proceedings bearing on matters of marital privacy, our legal system is founded on the principle that open access to courts is essential to safeguard valuable constitutional freedoms. The concept of an open court requires that information relating to a court proceeding must be available in the public domain. Citizens have a right to know about what transpires in the course of judicial proceedings. The dialogue in a court indicates the manner in which a judicial proceeding is structured. Oral arguments are postulated on an open exchange of ideas. It is through such an exchange that legal arguments are tested and analyzed. Arguments addressed before the court, the response of opposing counsel and issues raised by the court are matters on which citizens have a legitimate right to be informed. An open court proceeding ensures that the judicial process is subject to public scrutiny. Public scrutiny is crucial to maintaining transparency and accountability. Transparency in the functioning of democratic institutions is crucial to establish the public‘s faith in them.<br>20 There are multiple ways in which an open court system contributes to the working of democracy. An open court system ensures that judges act in accordance with law and with probity. <br>21 Public scrutiny fosters confidence in the process. Public discussion and criticism may work as a restraint on the conduct of a judge. <br>22 Cases before the courts are vital sources of public information about the activities of the legislature and the executive. An open court serves an educational purpose as well. The court becomes a platform for citizens to know<br>how the practical application of the law impacts upon their rights. <br><b>C.2 Freedom of Expression of the Media</b><br>24 & 25. Article 19(1)(a) of the Constitution guarantees every citizen the right to freedom of speech and expression.The Constitution guarantees the media the freedom to inform, to distill and convey information and to express ideas and opinions on all matters of interest. </h4><h4><b>Free speech and expression is subject to the regulatory provisions of Article 19(2). </b><br>26 Freedom of speech and expression extends to reporting the proceedings of judicial institutions as well. Courts are entrusted to perform crucial functions under the law. Their work has a direct impact, not only on the rights of citizens, but also the extent to which the citizens can exact accountability from the executive whose duty it is to enforce the law. Citizens are entitled to ensure that courts remain true to their remit to be a check on arbitrary exercises of power. The ability of citizens to do so bears a direct correlation to the seamless availability of information about what happens in a court during the course of proceedings. Therein lies the importance of freedom of the media to comment on and write about proceedings. <br>27. The media has over the years, transitioned from the predominance of newspapers in the printed form, to radio broadcasts, television channels and now, to the internet for disseminating news, views and ideas to wide audiences extending beyond national boundaries. The internet, including social media, have refashioned and, in significant ways, revolutionized the means through which information is relayed. At every stage of this transition, new questions have been raised about how court processes will adapt to the change, so that the rights of the parties before the courts and processes of justice are not affected18. However, while these are valid concerns, they should never be a good enough reason for Courts to not engage with evolving technology. Technology has shaped social, economic and political structures beyond description. The world is adapting to technology at a pace which is often difficult to catalogue, and many of our citizens are becoming digital natives from a young age. It is understandable that they will look towards modern forms of media, such as social media websites and applications, while consuming the news. This, understandably, would also include information reported about the functioning of courts. Hence, it would do us no good to prevent the new forms of media from reporting on our work. <br><b>C.3 Public Discourse, Media Reporting and Judicial Accountability</b><br>29 As we understand the rights of the media to report and disseminate issues and events, including court proceedings that are a part of the public domain, it is important to contextualize that this is not merely an aspect of protecting the rights of individuals and entities on reporting, but also a part of the process of augmenting the integrity of the judiciary and the cause of justice as a whole. <br>31. Post-independence, matters of seminal constitutional importance have witnessed widespread reportage in newspapers and magazines - which did not merely report on the pronouncement of verdicts, but also the quirks of the counsel and judges. These tales have now passed down as the legacy of our profession and also provide useful context for our study of the law. <br>33. With the advent of technology, we are seeing reporting proliferate through social media forums which provide real-time updates to a much wider audience. As we have discussed in the previous section, this is an extension of the freedom of speech and expression that the media possesses. This constitutes a ?virtual‘ extension of the open court. This phenomenon is a not a cause of apprehension, but a celebration of our constitutional ethos which bolsters the integrity of the judiciary by focusing attention on its functions. <br><b>C.4 Freedom and constraints of judicial conduct.</b><br>34 The grievance of the EC does not arise as much from the impugned order of the Madras High Court, as it does from the oral remarks made by the judges of the High Court during the hearing on 26 April 2021. The High Court has not been impleaded before us and has not had an opportunity to respond. Thus, we have been unable to discover what truly transpired in the proceedings and the exact remarks that were made. However, a constitutional authority such as the EC, has adverted to the oral remarks on oath in its affidavit. These have not been disputed by the respondent. The oral remarks have received widespread publicity in electronic and print media. We have, in deference to the independent constitutional status of the High Court, not required a confirmatory report from the Registrar General of the High Court. <br>35 The independence of the judiciary from the executive and the legislature is the cornerstone of our republic. Independence translates to being impartial, free from bias and uninfluenced by the actions of those in power, but also recognizes the freedom to judges to conduct court proceedings within the contours of the well-established principles of natural justice. Judges in the performance of their duty must remain faithful to the oath of the office they hold, which requires them to bear allegiance to the Constitution. An independent judiciary must also be one which is accountable to the public in its actions (and omissions). <br>36 The manner in which judicial proceedings are conducted, especially in our superior courts, is unique to each judge and holds great weight in the dispensation of justice. The issues raised or comments made by the Bench during an oral hearing provide clarity not just to the judges who adjudicate upon the matter, but also allow the lawyers to develop their arguments with a sense of creativity founded on a spontaneity of thought. Many a times, judges play the role of a devil‘s advocate with the counsel to solicit responses which aid in a holistic understanding of the case and test the strength of the arguments advanced before them. That is where the real art of advocacy comes to play. The order or judgment of the court must indicate a process of reflection and of the application of mind of the judge to the submissions of opposing parties. <br>37 The diversity of judicial backgrounds brings polyvocality in judgments and has enriched our jurisprudence for over seven decades since Independence. The humanity intrinsic to each judge allows them to transcend the language of the law to do complete justice. In the pursuit of doing justice and in the course of an open deliberation in court, propositions may be put forth and observations are made in order to facilitate the process of arriving at an acceptable outcome based on the law but which is in accord with justice. Observations during the course of a hearing do not constitute a judgment or binding decision. They are at best tentative points of view, on which rival perspectives of parties in conflict enable the judge to decide on an ultimate outcome. This exchange of views, perspectives and formulations is but a part of evolving towards a solution which accords with justice according to law. An exchange of views from the Bench is intrinsic to a process of open and transparent judging. The revealing of a judges‘ mind enables opposing parties to persuade her to their points of view. If this expression were to be discouraged the process of judging would be closed. <br>38 The duty to preserve the independence of the judiciary and to allow freedom of expression of the judges in court is one end of the spectrum. The other end of the spectrum, which is equally important, is that the power of judges must not be unbridled and judicial restraint must be exercised, before using strong and scathing language to criticize any individual or institution.<br>41 Today, the Court has not been called upon to determine the\r\nconstitutionality or legality of the actions of the EC in its conduct of the Assembly\r\nelections in the five states. In restricting ourselves to the specific grievances that\r\nhave been urged by the EC, regarding the remarks made by the judges of the\r\nMadras High Court, we find that the High Court was faced with a situation of rising\r\ncases of COVID-19 and, as a constitutional Court, was entrusted with protecting\r\nthe life and liberty of citizens. <b>The remarks of the High Court were harsh. The\r\nmetaphor inappropriate. </b>The High Court - if indeed it did make the oral\r\nobservations which have been alluded to - did not seek to attribute culpability for\r\nthe COVID-19 pandemic in the country to the EC. What instead it would have\r\nintended to do was to urge the EC to ensure stricter compliance of COVID-19\r\nrelated protocols during elections.<br>42 Having said that, we must emphasize the need for judges to exercise caution in off-the-cuff remarks in open court, which may be susceptible to misinterpretation. Language, both on the Bench and in judgments, must comport with judicial propriety. Language is an important instrument of a judicial process which is sensitive to constitutional values. Judicial language is a window to a conscience sensitive to constitutional ethos. Bereft of its understated balance, language risks losing its symbolism as a protector of human dignity. The power of judicial review is entrusted to the High Courts under the Constitution. So high is its pedestal that it constitutes a part of the basic features of the Constitution. Yet responsibility bears a direct co-relationship with the nature and dimensions of the entrustment of power. A degree of caution and circumspection by the High Court would have allayed a grievance of the nature that has been urged in the present case. All that needs to be clarified is that the oral observations during the course of the hearing have passed with the moment and do not constitute a part of the record. The EC has a track record of being an independent constitutional body which shoulders a significant burden in ensuring the sanctity of electoral democracy. We hope the matter can rest with a sense of balance which we have attempted to bring.<br>43 These oral remarks are not a part of the official judicial record, and\r\ntherefore, the question of expunging them does not arise. It is trite to say that a\r\nformal opinion of a judicial institution is reflected through its judgments and\r\norders, and not its oral observations during the hearing. Hence, in view of the\r\nabove discussion, we find no substance in the prayer of the EC for restraining the\r\nmedia from reporting on court proceedings. This Court stands as a staunch proponent of the freedom of the media to report court proceedings. This we\r\nbelieve is integral to the freedom of speech and expression of those who speak,\r\nof those who wish to hear and to be heard and above all, in holding the judiciary\r\naccountable to the values which justify its existence as a constitutional institution. <br><b>D Conclusion</b></h4><h4>\r\n44 For the reasons which we have indicated, we dispose of the appeal in the\r\nabove terms.<br><br><br><br><br><br><br></h4><p><br></p>', '6ac5ec3b489f6715aa2c010e266eb645.PNG', '8262322d1ae5a0be97fd0e74e2530679.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-06', 1, '', '', '2021-05-07 06:11:15', '2021-05-07 06:15:53'),
(742, 'dfnsVUg48Xpj3ypHKgiInBchv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Discharge is a valuable right provided to the accused. Courts, while considering discharge application should not act as mere post office and must prevent abuse of process. Supreme Court. 7 May 2021', '<h4>Sanjay Kumar Rai vs State of Uttar Pradesh and another.</h4><h4>Criminal Appeal 472 of 2021 decided on 7 May 2021.</h4><h4>Chief Justice N.V.Ramana, Justice Surya Kant and Justice Aniruddha Bose. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/32350/32350_2019_31_1505_28001_Judgement_07-May-2021.pdf\" target=\"_blank\" style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 255);\">https://main.sci.gov.in/supremecourt/2019/32350/32350_2019_31_1505_28001_Judgement_07-May-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs:</span> 2. This&nbsp; &nbsp;appeal&nbsp; &nbsp;emanates&nbsp; &nbsp;from&nbsp; &nbsp;the&nbsp; &nbsp;judgment&nbsp; &nbsp;dated&nbsp; &nbsp;28.11.2018 passed by the High Court of Judicature at Allahabad whereby a criminal revision against the order dated 13.03.2014 of&nbsp; the 2 Chief&nbsp; &nbsp;Judicial&nbsp; &nbsp;Magistrate,&nbsp; &nbsp;Sant&nbsp; &nbsp;Kabir&nbsp; &nbsp;Nagar&nbsp; &nbsp;refusing&nbsp; &nbsp;to discharge the appellant in N.C.R. No.120/2012 under Sections 504 and 506 of Indian Penal Code, 1860 has been turned down.&nbsp;</h4><h4>12. At the outset, we may note that the High Court has dismissed the Criminal Revision on the ground of lack of jurisdiction under Section 397 of Cr.P.C.&nbsp; The High Court did not examine the issue in detail to find out whether the continuation of proceedings will amount to abuse of process of law in this case. The impugned order cites the decision of this Court in Asian Resurfacing of Road Agency Pvt. Ltd.&nbsp; &nbsp;v. Central Bureau of Investigation (2018) 16 SCC 299.&nbsp;</h4><h4>13. It appears to us that while limiting the scope of a criminal revision&nbsp; &nbsp;to&nbsp; &nbsp;jurisdictional&nbsp; &nbsp;errors&nbsp; &nbsp;alone,&nbsp; &nbsp;the&nbsp; &nbsp;High&nbsp; &nbsp;Court apparently&nbsp; &nbsp;under­appreciated&nbsp; &nbsp;the&nbsp; &nbsp;Judgment&nbsp; &nbsp;in&nbsp; Asian Resurfacing This Court in Asian Resurfacing (Supra) while expressing concern regarding the need to tackle rampant pendency and delays in our criminal law system, followed the ratio laid down in an earlier decision in&nbsp; Madhu&nbsp; &nbsp;Limaye&nbsp; &nbsp;v. State&nbsp; &nbsp;of&nbsp; &nbsp;Maharashtra (1977) 4 SCC 551.&nbsp;</h4><h4>15. The correct position of law as laid down in&nbsp; Madhu&nbsp; Limaye (supra),&nbsp; thus,&nbsp; &nbsp;is&nbsp; &nbsp;that&nbsp; &nbsp;orders&nbsp; &nbsp;framing&nbsp; &nbsp;charges&nbsp; &nbsp;or&nbsp; &nbsp;refusing discharge are neither interlocutory nor final in nature and are therefore not affected by the bar of Section 397 (2) of CrPC.&nbsp; That apart,&nbsp; &nbsp;this&nbsp; &nbsp;Court&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;above­cited&nbsp; &nbsp;cases&nbsp; &nbsp;has&nbsp; &nbsp;unequivocally acknowledged&nbsp; &nbsp;that&nbsp; &nbsp;the&nbsp; &nbsp;High&nbsp; &nbsp;Court&nbsp; &nbsp;is&nbsp; &nbsp;imbued&nbsp; &nbsp;with&nbsp; &nbsp;inherent jurisdiction to prevent abuse of process or to secure ends of justice having regard to the facts and circumstance of individual cases.&nbsp; As a caveat it may be stated that the High Court, while exercising its afore­stated jurisdiction ought to be circumspect. The discretion vested in the High Court is to be invoked carefully and judiciously for effective and timely administration of criminal justice system. This Court, nonetheless, does not recommend a complete&nbsp; &nbsp;hands&nbsp; &nbsp;off&nbsp; &nbsp;approach.&nbsp; &nbsp;Albeit,&nbsp; &nbsp;there&nbsp; &nbsp;should&nbsp; &nbsp;be interference, may be, in exceptional cases, failing which there is likelihood&nbsp; &nbsp;of&nbsp; &nbsp;serious&nbsp; &nbsp;prejudice&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;rights&nbsp; &nbsp;of&nbsp; &nbsp;a&nbsp; &nbsp;citizen.&nbsp; &nbsp;For example,&nbsp; &nbsp;when&nbsp; &nbsp;the&nbsp; &nbsp;contents&nbsp; &nbsp;of&nbsp; &nbsp;a&nbsp; &nbsp;complaint&nbsp; &nbsp;or&nbsp; &nbsp;the&nbsp; &nbsp;other purported material on record is a brazen attempt to persecute an innocent&nbsp; &nbsp;person,&nbsp; &nbsp;it&nbsp; &nbsp;becomes&nbsp; imperative&nbsp; &nbsp;upon&nbsp; &nbsp;the&nbsp; &nbsp;Court&nbsp; &nbsp;to prevent the abuse of process of law.&nbsp; &nbsp;</h4><h4>16. Further, it is well settled that the trial court while considering the discharge application is not to act as a mere post office. The Court&nbsp; &nbsp;has&nbsp; &nbsp;to&nbsp; &nbsp;sift&nbsp; &nbsp;through&nbsp; &nbsp;the&nbsp; &nbsp;evidence&nbsp; &nbsp;in&nbsp; &nbsp;order&nbsp; &nbsp;to&nbsp; &nbsp;find&nbsp; &nbsp;out whether there are sufficient grounds to try the suspect. The court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the&nbsp; &nbsp;case&nbsp; &nbsp;and&nbsp; &nbsp;so&nbsp; &nbsp;on.&nbsp; &nbsp;[Union&nbsp; &nbsp;of&nbsp; &nbsp;India&nbsp; &nbsp;v.&nbsp; &nbsp;Prafulla&nbsp; &nbsp;Kumar Samal (1979) 3 SCC 4&nbsp; Likewise, the Court has sufficient discretion to order further investigation in appropriate cases, if need be.</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">18. The&nbsp; &nbsp;High&nbsp; &nbsp;Court&nbsp; &nbsp;has&nbsp; &nbsp;committed&nbsp; &nbsp;jurisdictional&nbsp; error&nbsp; by&nbsp; not entertaining the revision petition on merits and overlooking the fact that ‘discharge’ is a valuable right provided to the accused. In line with the fact that the High Court and the court below have not examined the fairness of criminal investigation in this case&nbsp; &nbsp;and&nbsp; &nbsp;other&nbsp; &nbsp;related&nbsp; &nbsp;aspects&nbsp; &nbsp;concerning&nbsp; &nbsp;improvement&nbsp; &nbsp;of witness&nbsp; &nbsp;statements,&nbsp; &nbsp;it&nbsp; &nbsp;is&nbsp; &nbsp;necessary&nbsp; &nbsp;for&nbsp; &nbsp;the&nbsp; &nbsp;High&nbsp; &nbsp;Court&nbsp; &nbsp;to reconsider the entire matter and decide the revision petition afresh.&nbsp; &nbsp;Accordingly, we set aside the impugned order dated 28.11.2018 and remand the case back to the High Court for its reconsideration in accordance with law.</b></h4>', '3ffec6204edfefed7bc7c026f523ddb8.PNG', '29e10dad60b354d05340ce268db01d00.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-07', 1, '', '', '2021-05-08 01:31:08', '2021-05-08 01:34:46'),
(743, 'oHdKsXru5NFJ34GrqpvBscXIy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Section 378. Power of power of scrutiny exercisable by the High Court should not be routinely invoked where the view formed by the trial court was a possible view. Supreme Court reiterates. 7 May 2021 ', '<h4>Jayamma&nbsp;&amp;&nbsp;Anr. vs State&nbsp;of&nbsp;Karnataka.&nbsp;<br>Criminal Appeal 758&nbsp;of 201 decided on 7 May 2021. </h4><h4>Chief Justice N.V.Ramana, Justice Surya Kant and Justice Aniruddha Bose.</h4><h4>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2009/38202/38202_2009_31_1503_28001_Judgement_07-May-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2009/38202/38202_2009_31_1503_28001_Judgement_07-May-2021.pdf<br></a><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:&nbsp;23. The other important reason to depart from the High Court’s\r\nview re. conviction of the appellants is that the power of scrutiny\r\nexercisable by the High Court under Section 378, CrPC should not be\r\nroutinely invoked where the view formed by the trial court was a\r\n‘possible view’. The judgment of the trial court cannot be set aside&nbsp;merely because the High Court finds its own view more probable,\r\nsave where the judgment of the trial court suffers from perversity or\r\nthe conclusions drawn by it were impossible if there was a correct\r\nreading and analysis of the evidence on record. To say it differently,\r\nunless the High Court finds that there is complete misreading of the\r\nmaterial evidence which has led to miscarriage of justice, the view\r\ntaken by the trial court which can also possibly be a correct view,\r\nneed not be interfered with. This self-restraint doctrine, of course,\r\ndoes not denude the High Court of its powers to re-appreciate the\r\nevidence, including in an appeal against acquittal and arrive at a\r\ndifferent firm finding of fact.</h4><p><a href=\"https://main.sci.gov.in/supremecourt/2009/38202/38202_2009_31_1503_28001_Judgement_07-May-2021.pdf\" target=\"_blank\"></a></p>', 'e1b064114d245026d36ea72240fd7c44.PNG', '967af80e980aa675d9ef9e2b82c12739.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-07', 1, '', '', '2021-05-08 02:01:21', '2021-05-08 02:27:50'),
(744, '9JTF0aKJKTSzhMZoajZyBuASX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal trial. Right of silence guaranteed under Article 20 of the Constitution is one of the facets of presumed innocence traceable to the Babylonian Code of Hammurabi and Roman principle of actori incumbit probatio. Supreme Court. 7 May 2021', '<h4><span style=\"font-size: 14px;\">&nbsp;Achhar Singh vs State of Himachal Pradesh.</span></h4><h4><span style=\"font-size: 14px;\">Criminal Appeal 1140 of 2010 decided on 7 May 2021.&nbsp;</span></h4><h4><span style=\"font-size: 14px;\">Chief Justice N.V.Ramana, Justice Surya Kant and Justice Aniruddha Bose.</span></h4><h4><span style=\"font-size: 14px;\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2010/17395/17395_2010_31_1504_28001_Judgement_07-May-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2010/17395/17395_2010_31_1504_28001_Judgement_07-May-2021.pdf</a></span></h4><h4><span style=\"font-size: 14px;\">Relevant paragraphs: 13. It is fundamental in criminal jurisprudence that every person is presumed to be innocent until proven guilty, for criminal accusations can be hurled at anyone without him being a criminal. The suspect is therefore&nbsp; &nbsp;considered&nbsp; &nbsp;to&nbsp; &nbsp;be&nbsp; &nbsp;innocent&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;interregnum&nbsp; &nbsp;between accusation&nbsp; and&nbsp; judgment.&nbsp; History reveals&nbsp; that&nbsp; the&nbsp; &nbsp;burden&nbsp; on&nbsp; &nbsp;the accuser to prove the guilt of the accused has its roots in ancient times. The Babylonian Code of Hammurabi (1792-1750 B.C.), one of the oldest written codes of law put the burden of proof on the accuser.Roman Law coined the principle of actori incumbit (onus) probatio (the burden of proof weighs on the plaintiff) i.e., presumed innocence of the accused. In Woolmington v. Director of Public Prosecutions [1935] AC 462 (HL), the House of Lords held that the duty of the prosecution to prove the prisoner’s guilt was the “golden thread” throughout the web of English Criminal Law. Today, Article 11 of the Universal Declaration of Human Rights, Article 14 of the International Covenant on Civil and Political Rights and Article 6 of the European Convention on Human Rights all mandate presumption of innocence of the accused.&nbsp;</span></h4><h4><span style=\"font-size: 14px;\">14. A characteristic feature of Common Law Criminal Jurisprudence in India is also that an accused must be presumed to be innocent till the contrary is proved. It is obligatory on the prosecution to establish the guilt of the accused save where the presumption of innocence has been statutorily dispensed with, for example, under Section 113¬B of the&nbsp; &nbsp;Evidence&nbsp; &nbsp;Act,&nbsp; &nbsp;1872.&nbsp; &nbsp;Regardless&nbsp; &nbsp;thereto,&nbsp; &nbsp;the&nbsp; &nbsp;‘Right&nbsp; &nbsp;of&nbsp; &nbsp;Silence’ guaranteed under Article 20(3) of the Constitution is one of the facets of presumed innocence. The constitutional&nbsp; mandate&nbsp; read with the scheme of the Code of Criminal Procedure, 1973 amplifies that the presumption of innocence, until the accused is proved to be guilty, is an&nbsp; &nbsp;integral&nbsp; &nbsp;part&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Indian&nbsp; &nbsp;criminal&nbsp; &nbsp;justice&nbsp; &nbsp;system.&nbsp; &nbsp;This presumption&nbsp; &nbsp;of&nbsp; &nbsp;innocence&nbsp; &nbsp;is&nbsp; &nbsp;doubled&nbsp; &nbsp;when&nbsp; &nbsp;a&nbsp; &nbsp;competent&nbsp; &nbsp;Court analyses the material evidence, examines witnesses and acquits the accused. Keeping this cardinal principle of invaluable rights in mind, the appellate Courts have evolved a self¬restraint policy whereunder, when two reasonable and possible views arise, the one favourable to the accused is adopted while respecting the trial Court’s proximity to the witnesses and direct interaction with evidence. In such cases, interference&nbsp; &nbsp;is&nbsp; &nbsp;not&nbsp; &nbsp;thrusted&nbsp; &nbsp;unless&nbsp; &nbsp; &nbsp;perversity&nbsp; &nbsp;is&nbsp; &nbsp;detected&nbsp; &nbsp;in&nbsp; &nbsp;the decision¬making process.</span></h4><h4><br></h4>', '70c34d6eee688ad15d09975df8228265.PNG', 'cff937e1f3217c12224c05412cbcb1c0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-07', 1, '', '', '2021-05-08 02:19:49', '2021-05-08 02:21:28'),
(745, 'wzlLcvjOAimZPhZRFh064g89k', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Motor Vehicles Act, 1988. Death of self employed person aged below 40 years. Proper mode of compensation is 40 percent addition to income towards future prospects and one-third  deduction towards living expenses. Supreme Court. 7 May 2021. ', '<h4>Rahul Sharma and another vs National Insurance Company Ltd and others. </h4><h4>Civil Appeal 1769 of 2021 decided on 7 May 2021. </h4><h4>Chief Justice N.V.Ramana, Justice Surya Kant and Justice Aniruddha Bose.</h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2017/40458/40458_2017_31_1502_28001_Judgement_07-May-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2017/40458/40458_2017_31_1502_28001_Judgement_07-May-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 10. This&nbsp;Court&nbsp;in&nbsp;a&nbsp;Five&nbsp;Judge&nbsp;Bench&nbsp;decision&nbsp;in&nbsp;National\r\nInsurance &nbsp;Co. &nbsp;Ltd. &nbsp;v. &nbsp;Pranay &nbsp;Sethi (2017) &nbsp;16 &nbsp;SCC &nbsp;680,\r\nclearly&nbsp;held&nbsp;that&nbsp;in&nbsp;case&nbsp;the&nbsp;deceased&nbsp;is&nbsp;self­employed&nbsp;and\r\nbelow&nbsp;the&nbsp;age&nbsp;of&nbsp;40,&nbsp;40%&nbsp;addition&nbsp;would&nbsp;be&nbsp;made&nbsp;to&nbsp;their\r\nincome&nbsp;as&nbsp;future&nbsp;prospects.&nbsp;In&nbsp;the&nbsp;present&nbsp;case,&nbsp;the&nbsp;deceased\r\nwas&nbsp;self­employed&nbsp;and&nbsp;was&nbsp;37&nbsp;years&nbsp;old,&nbsp;therefore,&nbsp;warranting\r\nthe &nbsp; addition &nbsp; of &nbsp; 40%&nbsp; towards &nbsp; future &nbsp; prospects. &nbsp; Moreover,\r\nPranay &nbsp; Sethi &nbsp;(supra),&nbsp;affirming&nbsp;the&nbsp;ratio&nbsp;in &nbsp;Sarla &nbsp; Verma\r\n(supra),&nbsp;held&nbsp;that&nbsp;the&nbsp;deduction&nbsp;towards&nbsp;personal&nbsp;and&nbsp;living\r\nexpenses&nbsp;for&nbsp;a&nbsp;person&nbsp;such&nbsp;as&nbsp;the&nbsp;deceased&nbsp;who&nbsp;was&nbsp;married\r\nwith&nbsp;two&nbsp;dependents,&nbsp;to&nbsp;be&nbsp;one­third&nbsp;(1/3rd).&nbsp;Since&nbsp;the&nbsp;High\r\nCourt &nbsp; in &nbsp; the &nbsp; impugned &nbsp; judgment &nbsp; deducted &nbsp; 50% &nbsp; the &nbsp; same\r\nmerits&nbsp;interference&nbsp;by&nbsp;this&nbsp;Court.&nbsp;<br>11. Therefore, &nbsp; in &nbsp;light &nbsp;of &nbsp;the &nbsp; above, &nbsp;the &nbsp; compensation &nbsp;as\r\nawarded&nbsp;to&nbsp;the&nbsp;Appellants&nbsp;by&nbsp;the&nbsp;High&nbsp;Court&nbsp;is&nbsp;modified&nbsp;to&nbsp;the\r\nextent &nbsp; of &nbsp; deduction &nbsp; towards &nbsp; personal &nbsp; and &nbsp; living &nbsp; expenses\r\n(determined&nbsp;to&nbsp;be&nbsp;one­third&nbsp;(1/3rd))&nbsp;and&nbsp;40%&nbsp;addition&nbsp;towards\r\nfuture&nbsp;prospects.&nbsp;The&nbsp;annual&nbsp;income&nbsp;of&nbsp;the&nbsp;deceased&nbsp;(Mrs.\r\nManisha&nbsp;Sharma)&nbsp;was&nbsp;Rs.&nbsp;2,55,349.&nbsp;After&nbsp;deducting&nbsp;personal\r\nand&nbsp;living&nbsp;expenses&nbsp;and&nbsp;adding&nbsp;future&nbsp;prospects,&nbsp;the&nbsp;annual&nbsp;income&nbsp;is&nbsp;determined&nbsp;at&nbsp;Rs.&nbsp;2,38,326/­.&nbsp;The&nbsp;multiplier&nbsp;of&nbsp;15&nbsp;is\r\nappropriate,&nbsp;considering&nbsp;the&nbsp;age&nbsp;of&nbsp;the&nbsp;deceased.&nbsp;Accordingly,\r\nthe &nbsp; total &nbsp; loss &nbsp; of &nbsp; dependency, &nbsp; is &nbsp; calculated &nbsp; to &nbsp; be\r\nRs.&nbsp;35,74,890/­.&nbsp;We&nbsp;do&nbsp;not&nbsp;find&nbsp;any&nbsp;reason&nbsp;to&nbsp;interfere&nbsp;with\r\nany&nbsp;other&nbsp;heads&nbsp;as&nbsp;determined&nbsp;by&nbsp;the&nbsp;High&nbsp;Court.\r\n</h4>', 'b778062b1cf1c0eb7ef12312f6742f5f.PNG', '1b0deec2843ae23800338547d0f0e483.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-07', 1, '', '', '2021-05-08 04:20:10', '2021-05-08 04:24:59');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(746, 'orDJmH48JxDFTdaiRqTWuugzT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'POCSO. Apart from rendering justice to child victims, concomitant support service systems have also to be provided, as the child victim faces physical injury and psychological trauma. Karnataka High Court issues directions for system overhaul. 23:4:2021', '<h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\">Hanumantha Mogaveera vs State of Karnataka.</h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\">Criminal Petition 2951 of 2020 decided on 23 April 2021. </h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\">Justice B.V.Nagarathna and Justice M.G.Uma. </h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\">Judgment Link: <a href=\"https://karnatakajudiciary.kar.nic.in/judgements/CrlP_2951_20cw3000.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/CrlP_2951_20cw3000.pdf</a></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 11. <span style=\"font-size: 1.3125rem;\">Before parting with this case, we would like to observe that the Central Government has issued directions to the State Governments for setting up of Special Courts with requisite infrastructure for disposal of the cases arising under the POCSO Act in accordance with the said provisions, following the directions of the Hon’ble Supreme Court to set up Fast Track Court and exclusive POCSO Courts.</span></h4><h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\">12.<span style=\"font-size: 1.3125rem; white-space: pre;\">	</span><span style=\"font-size: 1.3125rem;\">No doubt, in the State of Karnataka, additional Courts have been set up, but the requisite infrastructure, including the child witness room and other procedural requirements mandated under the Act for establishing a child friendly Court have to be complied with by the State Government.</span></h4><h4>13.<span style=\"white-space:pre\">	</span>In this context, we also note that apart from rendering justice to the child victim, concomitant support service systems have also to be provided, as the child victim faces a two-fold trauma—physical injury and psychological trauma. Insofar as the medical treatment  for physical injuries is concerned, it should be preferably free and in Government Hospitals. Hence, there is need to improve medical facilities for the victims of child abuse by notifying a dedicated unit in every District Hospital and further, where medical complications have to be treated urgently, provisions must be made for enabling the doctors at the District Hospitals to refer the victim to a private hospital for providing proper medical treatment to the victim. In the context of mental trauma, we note that the role of the mental health professionals is of critical importance. There is need to provide such services at a reasonable cost to be borne by the Government. Hence, the State must identify mental health professionals available throughout the State so that the victim child could avail all the said services.<br>14.<span style=\"white-space:pre\">	</span>More importantly, there is a mandate under Section 32(1) of the POCSO Act to appoint a Special Public Prosecutor for every Special court. Initially, the public prosecutor attending the Court which was conferred with the jurisdiction as Special Court to handle such cases under the POCSO Act, was also appointed as the Special Public Prosecutor. It is not known whether the said practice is continuing. We think that the time has now come to discontinue the said practice and appoint competent Special Public Prosecutors exclusively attached to the Special Courts dealing with matters under the POCSO Act, so that the time-frame under Section 35 of the POCSO Act in recording evidence and concluding with the trial and adjudication is as per the said provision.<br>15. Also, support persons have to be provided to the victim child, as mandated under the POCSO Act throughout the process of investigation and trial to act as a link between the child and the Special Court dealing with the adjudication of the cases. The support person has to prepare the child for Court proceedings and ensure that the child’s views are heard and are taken into account at every stage of the proceedings. The State has to appoint adequate number of support persons on a priority basis if real justice is to be done to the victim during the course of investigation and trial.<br>16. In the above context, we issue the following directions:<br>(I)<span style=\"white-space:pre\">	</span>We direct the State to take steps for setting up of the requisite number of Special Courts to try cases under the POCSO Act;<br>(II)<span style=\"white-space:pre\">	</span>Further, the State is directed to provide the necessary infrastructure and man power for the Special Courts under POCSO Act;<br>(III)<span style=\"white-space:pre\">	</span>The appointment/posting of exclusively trained prosecutors to handle the cases before the Special Courts under the provisions of the POCSO Act shall be made forthwith wherever such prosecutors are not yet appointed;<br>(IV)<span style=\"white-space:pre\">	</span>We direct that a dedicated unit is set up in every District Hospital to attend to the child victim and provide proper medical facilities and whenever necessary referral to a private hospital be permitted;<br>(V)<span style=\"white-space:pre\">	</span>The State is also directed to make available mental health professionals to every child to overcome the trauma and for rehabilitation and reintegration, the cost of which is to be borne by the State;<br>(VI)<span style=\"white-space:pre\">	</span>Further, the State is also directed to appoint adequate support persons to the child victims and to conduct a study, whether, they are discharging their duties effectively and take immediate measures as per the recommendations of the study.<br>17. It is needless to observe that the aforesaid directions should be complied with on a timely basis, lest the object and purpose of the POCSO Act stand diluted on account of the non-implementation of the provisions of the POCSO Act in its true letter and spirit by the State and other stake-holders.<br>18. Last but not the least, we direct the Presiding Officers of all Special Courts to comply with Section 35 of the POCSO Act in the matter of recording of evidence of the victim child and the conclusion of the trial within the time stipulated under the said provision so that the justice delivery system does not in any way contribute to the trauma, mental disturbance and anxiety of the victim child, which could lead to severe impact on the behaviour and personality of the Child.<br></h4><p><br></p>', '0aa8778af9953038fe8afba9e1792a3d.PNG', '3d599b8a75fcf8e5d562317c83d04a40.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-23', 1, '', '', '2021-05-09 02:23:16', '2021-05-09 02:26:58'),
(747, 'Zpv2lRy7dXS4EDgFLcWaY0cBW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Discharge. Bar under section 397-2 will NOT apply to High Court or Sessions Judge since orders framing charges or refusing discharge are NOT interlocutory orders. Supreme Court. 7 May 2021 ', '<h4>Sanjay Kumar Rai vs State of Uttar Pradesh and another.</h4><h4>Criminal Appeal 472 of 2021 decided on 7 May 2021.</h4><h4>Chief Justice N.V.Ramana, Justice Surya Kant and Justice Aniruddha Bose.</h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/32350/32350_2019_31_1505_28001_Judgement_07-May-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/32350/32350_2019_31_1505_28001_Judgement_07-May-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 2. This&nbsp; &nbsp;appeal&nbsp; &nbsp;emanates&nbsp; &nbsp;from&nbsp; &nbsp;the&nbsp; &nbsp;judgment&nbsp; &nbsp;dated&nbsp; &nbsp;28.11.2018 passed by the High Court of Judicature at Allahabad whereby a criminal revision against the order dated 13.03.2014 of&nbsp; the 2 Chief&nbsp; &nbsp;Judicial&nbsp; &nbsp;Magistrate,&nbsp; &nbsp;Sant&nbsp; &nbsp;Kabir&nbsp; &nbsp;Nagar&nbsp; &nbsp;refusing&nbsp; &nbsp;to discharge the appellant in N.C.R. No.120/2012 under Sections 504 and 506 of Indian Penal Code, 1860 has been turned down.&nbsp;</h4><h4>12. At the outset, we may note that the High Court has dismissed the Criminal Revision on the ground of lack of jurisdiction under Section 397 of Cr.P.C.&nbsp; The High Court did not examine the issue in detail to find out whether the continuation of proceedings will amount to abuse of process of law in this case. The impugned order cites the decision of this Court in Asian Resurfacing of Road Agency Pvt. Ltd.&nbsp; &nbsp;v. Central Bureau of Investigation (2018) 16 SCC 299.&nbsp;</h4><h4>13. It appears to us that while limiting the scope of a criminal revision&nbsp; &nbsp;to&nbsp; &nbsp;jurisdictional&nbsp; errors&nbsp; &nbsp;alone,&nbsp; &nbsp;the&nbsp; &nbsp;High&nbsp; &nbsp;Court apparently&nbsp; &nbsp;under­appreciated&nbsp; &nbsp;the&nbsp; &nbsp;Judgment&nbsp; &nbsp;in&nbsp; Asian Resurfacing This Court in Asian Resurfacing (Supra) while expressing concern regarding the need to tackle rampant pendency and delays in our criminal law system, followed the ratio laid down in an earlier decision in&nbsp; Madhu&nbsp; &nbsp;Limaye&nbsp; &nbsp;v. State&nbsp; &nbsp;of&nbsp; &nbsp;Maharashtra (1977) 4 SCC 551.</h4><h4>15. The correct position of law as laid down in&nbsp; Madhu&nbsp; Limaye (supra),&nbsp; thus,&nbsp; &nbsp;is&nbsp; &nbsp;that&nbsp; &nbsp;orders&nbsp; &nbsp;framing&nbsp; &nbsp;charges&nbsp; &nbsp;or&nbsp; &nbsp;refusing discharge are neither interlocutory nor final in nature and are therefore not affected by the bar of Section 397 (2) of CrPC.&nbsp; That apart,&nbsp; &nbsp;this&nbsp; &nbsp;Court&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;above¬cited&nbsp; &nbsp;cases&nbsp; &nbsp;has&nbsp; &nbsp;unequivocally acknowledged&nbsp; &nbsp;that&nbsp; &nbsp;the&nbsp; &nbsp;High&nbsp; &nbsp;Court&nbsp; &nbsp;is&nbsp; &nbsp;imbued&nbsp; &nbsp;with&nbsp; &nbsp;inherent jurisdiction to prevent abuse of process or to secure ends of justice having regard to the facts and circumstance of individual cases.&nbsp; As a caveat it may be stated that the High Court, while exercising its afore-stated jurisdiction ought to be circumspect. The discretion vested in the High Court is to be invoked carefully and judiciously for effective and timely administration of criminal justice system. This Court, nonetheless, does not recommend a complete&nbsp; &nbsp;hands&nbsp; &nbsp;off&nbsp; &nbsp;approach.&nbsp; &nbsp;Albeit,&nbsp; &nbsp;there&nbsp; &nbsp;should&nbsp; &nbsp;be interference, may be, in exceptional cases, failing which there is likelihood&nbsp; &nbsp;of&nbsp; &nbsp;serious&nbsp; &nbsp;prejudice&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;rights&nbsp; &nbsp;of&nbsp; &nbsp;a&nbsp; &nbsp;citizen.&nbsp; &nbsp;For example,&nbsp; &nbsp;when&nbsp; &nbsp;the&nbsp; &nbsp;contents&nbsp; &nbsp;of&nbsp; &nbsp;a&nbsp; &nbsp;complaint&nbsp; &nbsp;or&nbsp; &nbsp;the&nbsp; &nbsp;other purported material on record is a brazen attempt to persecute an innocent&nbsp; &nbsp;person,&nbsp; &nbsp;it&nbsp; &nbsp;becomes&nbsp; imperative&nbsp; &nbsp;upon&nbsp; &nbsp;the&nbsp; &nbsp;Court&nbsp; &nbsp;to prevent the abuse of process of law.&nbsp;&nbsp;</h4>', '5877f69321eb283f59453303bbd90349.PNG', 'ee8826e126bfefb2ab60dfdf1725e499.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-07', 1, '', '', '2021-05-09 03:55:54', '2021-05-09 03:55:54'),
(748, 'lZQbFo1GQZXhzPOIaztZ642ED', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Evidence Act, 1872. Section 92. Where a document is straightforward one and presents no difficulty in construing it, oral evidence regarding the language of the document can NOT be adduced. Supreme Court. 7 May 2021. ', '<h4>Mangala Waman Karandikar by. Lrs vs Prakash Damodar Ranade.<br></h4><h4><span style=\"font-size: 1.3125rem;\">Civil Appeal&nbsp;</span>10827&nbsp;of&nbsp;2010 decided on 7 May 2021.&nbsp;</h4><h4>Chief Justice N.V.Ramana, Justice Surya Kant and Justice Aniruddha Bose.&nbsp;</h4><h4>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2010/11126/11126_2010_31_1501_28001_Judgement_07-May-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2010/11126/11126_2010_31_1501_28001_Judgement_07-May-2021.pdf<br></a>Relevant paragraphs: 100.&nbsp;Section&nbsp;92&nbsp;reads&nbsp;as&nbsp;under:<br>\r\n</h4><h4 style=\"margin-left: 25px;\">92. Exclusion &nbsp; of &nbsp; evidence &nbsp; of &nbsp; oral &nbsp; agreement.—When &nbsp; the terms&nbsp;of&nbsp;any&nbsp;such&nbsp;contract,&nbsp;grant&nbsp;or&nbsp;other&nbsp;disposition&nbsp;of\r\nproperty,&nbsp;or&nbsp;any&nbsp;matter&nbsp;required&nbsp;by&nbsp;law&nbsp;to&nbsp;be&nbsp;reduced&nbsp;to&nbsp;the\r\nform&nbsp;of&nbsp;a&nbsp;document,&nbsp;have&nbsp;been&nbsp;proved&nbsp;according&nbsp;to&nbsp;the&nbsp;last\r\nsection,&nbsp;no&nbsp;evidence&nbsp;of&nbsp;any&nbsp;oral&nbsp;agreement&nbsp;or&nbsp;statement&nbsp;shall\r\nbe&nbsp;admitted,&nbsp;as&nbsp;between&nbsp;the&nbsp;parties&nbsp;to&nbsp;any&nbsp;such&nbsp;instrument\r\nor &nbsp; their &nbsp; representatives&nbsp; in &nbsp; interest, &nbsp; for &nbsp; the &nbsp; purpose &nbsp; of\r\ncontradicting,&nbsp;varying,&nbsp;adding&nbsp;to,&nbsp;or&nbsp;subtracting&nbsp;from,&nbsp;its\r\nterms:…\r\nProviso&nbsp;(6).—Any&nbsp;fact&nbsp;may&nbsp;be&nbsp;proved&nbsp;which&nbsp;shows&nbsp;in&nbsp;what\r\nmanner&nbsp;the&nbsp;language&nbsp;of&nbsp;a&nbsp;document&nbsp;is&nbsp;related&nbsp;to&nbsp;existing\r\nfacts.<br></h4><h4>14. It&nbsp;is&nbsp;manifest&nbsp;from&nbsp;these&nbsp;two&nbsp;sections&nbsp;that&nbsp;it&nbsp;is&nbsp;only&nbsp;in&nbsp;cases&nbsp;where the&nbsp;terms&nbsp;of&nbsp;the&nbsp;document&nbsp;leave&nbsp;the&nbsp;question&nbsp;in&nbsp;doubt,&nbsp;then&nbsp;resort\r\ncould &nbsp; be &nbsp; had &nbsp; to &nbsp; the &nbsp;proviso. But&nbsp; when a document is a straightforward&nbsp;one&nbsp;and&nbsp;presents&nbsp;no&nbsp;difficulty&nbsp;in&nbsp;construing&nbsp;it,&nbsp;the\r\nproviso&nbsp;does&nbsp;not&nbsp;apply.&nbsp;In&nbsp;this&nbsp;regard,&nbsp;we&nbsp;may&nbsp;state&nbsp;that&nbsp;Section&nbsp;95\r\nonly&nbsp;builds&nbsp;on&nbsp;the&nbsp;proviso&nbsp;6&nbsp;of&nbsp;Section&nbsp;92.&nbsp;<br>15. If&nbsp;the&nbsp;contrary&nbsp;view&nbsp;is&nbsp;adopted&nbsp;as&nbsp;correct&nbsp;it&nbsp;would&nbsp;render&nbsp;Section&nbsp;92 of&nbsp;the&nbsp;Evidence&nbsp;Act,&nbsp;otiose&nbsp;and&nbsp;also&nbsp;enlarge&nbsp;the&nbsp;ambit&nbsp;of&nbsp;proviso&nbsp;6&nbsp;beyond&nbsp;the&nbsp;main&nbsp;Section&nbsp;itself.&nbsp;Such&nbsp;interpretation,&nbsp;provided&nbsp;by&nbsp;th High&nbsp;Court&nbsp;violates&nbsp;basic&nbsp;tenants&nbsp;of&nbsp;legal&nbsp;interpretation.3\r\n&nbsp;Section&nbsp;92\r\nspecifically&nbsp;prohibits&nbsp;evidence&nbsp;of&nbsp;any&nbsp;oral&nbsp;agreement&nbsp;or&nbsp;statement\r\nwhich&nbsp;would&nbsp;contradict,&nbsp;vary,&nbsp;add&nbsp;to&nbsp;or&nbsp;subtract&nbsp;from&nbsp;its&nbsp;terms.&nbsp;If,\r\nas&nbsp;stated&nbsp;by&nbsp;the&nbsp;learned&nbsp;Judge,&nbsp;oral&nbsp;evidence&nbsp;could&nbsp;be&nbsp;received&nbsp;to\r\nshow&nbsp;that&nbsp;the&nbsp;terms&nbsp;of&nbsp;the&nbsp;document&nbsp;were&nbsp;really&nbsp;different&nbsp;from\r\nthose&nbsp;expressed&nbsp;therein,&nbsp;it&nbsp;would&nbsp;amount&nbsp;to&nbsp;according&nbsp;permission\r\nto&nbsp;give&nbsp;evidence&nbsp;to&nbsp;contradict&nbsp;or&nbsp;vary&nbsp;those&nbsp;terms&nbsp;and&nbsp;as&nbsp;such&nbsp;it\r\ncomes &nbsp; within &nbsp; the &nbsp; inhibitions &nbsp; of &nbsp; Section &nbsp; 92. &nbsp; It &nbsp; could &nbsp; not &nbsp; be\r\npostulated &nbsp; that &nbsp; the &nbsp; legislature &nbsp; intended &nbsp; to &nbsp; nullify &nbsp; the &nbsp; object of\r\nSection&nbsp;92&nbsp;by&nbsp;enacting&nbsp;exceptions&nbsp;to&nbsp;that&nbsp;section.&nbsp;</h4>', '873dcb19bc6181a75e76c61cb0776fc3.jpg', 'e28b1ce9ea95d28ad367fcdc836e2f00.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-07', 1, '', '', '2021-05-09 04:35:26', '2021-05-09 04:36:16'),
(749, 'rKk8CDBcfp2piXC3jyhyGZoD8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Trademark. Nandhini vs Nandini. Mere phonetic similarity would NOT amount to infringement of any sort when the nature and style of the business and the products are altogether different. Supreme Court. 26 July 2018', '<h4>M/s. Nandhini Deluxe vs M/s. Karnataka Co-operative Milk Producers Federation Ltd. </h4><h4>Civil Appeal 2937 to 2942 of 2018 decided on 26 July 2018. </h4><h4>Justice A.K. Sikri and Justice Ashok Bhushan. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2015/18014/18014_2015_Judgement_26-Jul-2018.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2015/18014/18014_2015_Judgement_26-Jul-2018.pdf</a></h4><h4><b style=\"background-color: rgb(255, 255, 0);\">Brief Facts of the Case</b><br>Karnataka Co-Operative Milk Producers Federation Ltd. (KMF), has been producing and selling milk and milk products, since 1985, under their mark ‘NANDINI’ which had been registered under Class 29 and Class 30.<br>M/S. Nandhini Deluxe is in the business of running restaurants since 1989 under the name ‘NANDHINI’ and had applied for the registration of the same.<br>The Deputy Registrar of Trade Marks had the application submitted by the restaurant chain and allowed for the registration for their mark ‘NANDHINI’ as well. The Intellectual Property Appellate Board (IPAB), however, set aside Deputy Registrar’s order, and the High Court confirmed the IPAB’s decision on the following grounds:<br>The mark ‘NANDINI’ (KMF) had acquired a distinctive character and was a well-known mark;<br>Products sold under the infringing mark ‘NANDHINI’ (Restaurant) were of the same classes as those under ‘NANDINI’ (KMF).<br>The use of the infringing mark is different only in one alphabet but with no difference in spelling or pronunciation in the local language and would very likely to cause confusion in the minds of public if allowed to be registered for the commodities falling in the same class;<br>In 2015, the proprietors of ‘NANDHINI’ (Restaurant) appealed to the Supreme Court against the decision of the High Court.<br><b style=\"background-color: rgb(255, 255, 0);\">Arguments by the Parties:</b><br>Proprietors of ‘NANDINI’ i.e. KMF objected to the use of the mark ‘NANDHINI’ by the Appellants (Restaurant) on the grounds that:<br>It was deceptively similar to the mark of the respondent and was likely to deceive the public or cause confusion.<br>KMF had long and sustained use by the ‘NANDINI’ and had acquired a distinctive character and was well-known to the public.<br>The public associates ‘NANDINI’ with ‘NANDHINI’ because of phonetic similarity.<br>‘NANDHINI’ was adopted by the restaurant chain to ride on the goodwill of trade mark ‘NANDINI’ (KMF).<br>Proprietors of ‘NANDHINI’ Deluxe objected that:<br>It was running the business of restaurant since 1989 and KMF had started using mark ‘NANDINI’ since the year 1985 only for milk and milk products and not for other products.<br>Goods and services of ‘NANDHINI DELUXE’ were totally different from that of the KMF and, therefore, there was no likelihood of confusion or deception among the public.<br>The monopoly under a Trademark only extends to the goods which are falling in a particular class and not the entire class of goods and the trade mark which is similar in nature can be registered for the goods which are falling within the same class but are not identical to those of the previously registered mark.<br><b style=\"background-color: rgb(255, 255, 0);\">Court’s Ruling:</b><br>The Hon’ble Supreme Court granted the registration of the mark ‘NANDHINI’ by the restaurant on the condition that registration will not be given to them for milk and milk products.<br>The court relied on the following reasoning to determine whether a similar trade mark in respect of similar goods would cause deception and confusion in the minds of the users:<br>While the goods of both parties fall under the same classes (i.e. 29 & 30), the goods of the parties differ from each other.<br>One (NANDINI) was concerned with the production of only milk and milk products while the other (NANDHINI) dealt in fish, meat, poultry and game, meat extracts, preserved, dried and cooked fruits and vegetables, edible oils and fats, salad dressings, preserves etc. Furthermore, ‘NANDHINI’ had also relinquished its claim for milk and milk products.<br>The nature and style of the business of the appellant restaurant and the respondent federation were altogether different. One (NANDINI) was a manufacturer of dairy products while the other (NANDHINI) ran a full-scale restaurant business.<br>There’s mere phonetic similarity as far as the word marks are concerned (i.e. NANDHINI/NANDINI). However, the trade mark with logo adopted by both parties are different.<br>The restaurant chain uses the word ‘NANDHINI DELUXE’ which is followed by the tagline ‘the real spice of life’ and a device of a lamp accompanying these words.<br>On the other hand, the milk federation only uses the word ‘NANDINI’ beneath a ‘Cow’ logo and is encircled by egg shape circle.<br>There is a difference in not just the visual appearance but even in their products. The manner of business is different. All of these factors make it difficult to imagine that an ordinary man would associate the goods of the Restaurant as that of the Milk Federation.<br>The restaurant had applied the trademark ‘NANDHINI’ in respect of goods which are used in the products/services of restaurant business. Said items do not strictly belong to Class 29 or 30. Other items necessary to run their business or render their services include stationery, furniture, utensils and crockery all of which do not fall under class 29 or class 30.<br><b style=\"background-color: rgb(255, 255, 0);\">To quote the SC:</b><br>“One other significant factor which is lost sight of by the IPAB as well as the High Court is that the appellant is operating a restaurant under the trademark ‘NANDHINI’ and it had applied the trademark in respect of goods like coffee, tea, cocoa, sugar, rice, rapioca, sago, artificial coffee, flour and preparations made from cereals, bread, pastry, spices, bill books, visiting cards, meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; jellies, jams, fruit sauces, etc. which are used in the products/services of restaurant business. The aforesaid items do not belong to Class 29 or 30. Likewise, stationery items used by the appellant in the aid of its restaurant services are relatable to Class 16. In these circumstances, there was hardly any question of confusion or deception.”<br>Thus, the goods that are dealt with under the name ‘NANDHINI’ aren’t strictly under class 29 & 30. The milk and milk products, which are sold by the respondent under the trade mark of ‘NANDINI’, fall under Class 29 and Class 30 as per classification under Schedule IV to the Trade Marks Rules, 2002.<br>\"Nandini/Nandhini” is a generic name, representing a goddess and a cow in Hindu mythology, and it is not an invented or coined word attributed to one party.<br>Referring to the judgement in Vishnudas Trading As Vishnudas vs The Vazir Sultan Tobaccoco. Ltd. JT 1996 (6), 366 1996 SCALE (5)267, it is stated that the proprietor of a trade mark cannot enjoy monopoly over the entire class of goods especially if he is not using the said trade mark in respect of certain goods falling under the same class. Refusal under Section 11(2)(b) cannot be made because both the parties started using the marks within a span of 4 years of each other and both have built a considerable reputation with the state boundaries for themselves over the years.<br>Thus, on all these grounds, the Supreme Court laid down that the two marks are not deceptively similar.<br><b style=\"background-color: rgb(255, 255, 0);\">Conclusion:</b><br>The Supreme Court thus allowed the mark ‘NANDHINI’ to be registered and used by the restaurant based on the ground that it (device/logo) is not deceptively similar to the mark ‘NANDINI’ (device/logo) used by the respondents.<br>On the face of it, this decision may seem logically sound because denying registration on grounds of mere phonetic similarity, when the marks are visually poles apart and the products under them are also different, would be a hindrance to a healthy competition.<br>However, it would also be pertinent to note that the court seems to have overlooked the fact that in this case, ordinary person would mean any person hailing from Karnataka or one who has lived here for a considerable amount of time. To anyone, from any other part of the country, these marks would most probably be similar and confusing.<br>The restaurant chain operated within Bangalore and no one outside Bangalore would have plausible reason to be aware of this chain. The Milk Federation sells its products within the region of Karnataka. Hence, any one residing here for a long time would not confuse them. But, to any ordinary person from outside the city or state limits, these marks would seem to be confusing or having the same origin.<br>To understand this conundrum better, we can look back at the case of London Dairy v Londonderry wherein the Bombay High Court ruled that mere phonetic similarity would not amount to infringement of any sort. One mark was famous for its ice cream products. The other for its boiled confectionary. Both were sweets, but one was not confused for the other because the former had built a reputation for itself nationally while the new one was distinctly viewed by the consumers as something different. The consumers were not confused because they could differentiate between the origin of the two marks and their underlying products.</h4>', '22e40b78a4efef61e78e6a07623225ba.PNG', '65210efd622133bae5cc5dcf18708632.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2018-07-26', 1, '', '', '2021-05-10 04:24:37', '2021-05-10 04:28:16'),
(750, 'vdkePcnm0P9XgYDiZn9zM8StN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contract. Distinction between a Servant and an Agent explained. Supreme Court. 1 April 1954 ', '<h4><span style=\"font-size: 1.3125rem;\">Lakshminarayan Ram Gopal and Son Ltd v. Govt. of Hyderabad, (1955) 1 SCR 393 : AIR 1954 SC 364:(1954) 25 ITR 449&nbsp;</span><br></h4><h4><span style=\"font-size: 1.3125rem;\">Civil Appeal 292 of 1950 and connected matters decided on 1 April 1954. </span></h4><h4><span style=\"font-size: 1.3125rem;\">Justice Sudhi Ranjan Das, Justice N.H. Bhagwati and Justice B. Jagannadhadas&nbsp;</span></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span><span style=\"font-size: 1.3125rem;\">: 10. The distinction between a servant and an agent is thus indicated in Powell\'s Law of Agency, at p. 16</span><span style=\"font-size: 1.3125rem;\">(a) Generally a master can tell his servant what to do and how to do it.</span></h4><h4>(b) Generally a principal cannot tell his agent how to carry out his instructions.<br>(c) A servant is under more complete control than an agent, and also at page 20:<br>(a) Generally, a servant is a person who not only receives instructions from his master but is subject to his master\'s right to control the manner in which he carries out those instructions. An agent receives his principal\'s instructions but is generally free to carry out those instructions according to his own discretion.<br>(b) Generally, a servant, qua servant, has no authority to make contracts on behalf of his master. Generally, the purpose of employing an agent is to authorise him to make contracts on behalf of his principal.<br>(c) Generally, an agent is paid by commission upon effecting the result which he has been instructed by his principal to achieve. Generally, a servant is paid by wages or salary.<br>11. The statement of the law contained in Halsbury\'s Laws of England, Hailsham Edn., Vol. 22, p. 113, para 192 may be referred to in this connection:<br>“The difference between the relations of master and servant and of principal and agent may be said to be this: a principal has the right to direct what work the agent has to do: but a master has the further right to direct how the work is to be done.”<br>The position is further clarified in Halsbury\'s Laws of England, Hailsham Edn., Vol. 1, at p. 193, Article 345 where the positions of an agent, a servant and independent contractor are thus distinguished:<br>“An agent is to be distinguished on the one hand from a servant, and on the other from an independent contractor. A servant acts under the direct control and supervision of his master, and is bound to conform to all reasonable orders given to him in the course of his work; an independent contractor, on the other hand, is entirely independent of any control or interference and merely undertakes to produce a specified result, employing his own means to produce that result. An agent, though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision of the principal. An agent, as such is not a servant, but a servant is generally for some purposes his master\'s implied agent, the extent of the agency depending upon the duties or position of the servant.” </h4><h4><br></h4><h4><i>(Photo courtesy. LSM)</i></h4><p><br></p>', 'aba3806cf50c91e1e783f505cad56242.png', '17f5b4c0b307649cbd00152e69f07198.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1954-04-01', 1, '', '', '2021-05-11 04:55:46', '2021-05-11 04:55:46'),
(751, 'VjOBQj7vgucatlIdwVfbBqCtJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Religious denomination explained. To be a religious denomination, it must be a collection of individuals with common faith, common organisation and designation of a distinctive name. Supreme Court. 30 July 2003', '<h4><span style=\"font-size: 1.3125rem;\">Nallor Marthandam Vellalar & Ors. vs. The Commissioner, Hindu Religions and Charitable Endowments and Ors. </span></h4><h4>Civil Appeal 175 of 1997, decided on <span style=\"font-size: 1.3125rem;\">30 July 2003. </span></h4><h4><span style=\"font-size: 1.3125rem;\">Justice Shivraj V Pati and Justice D.M. Dharmadhikari. </span><br></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 7. It is settled position in law, having regard to the various decisions of this Court that the words “religious denomination” take their colour from the word “religion”. The expression “religious denomination” must satisfy three requirements: </h4><h4>(1) it must be a collection of individuals who have a system of belief or doctrine which they regard as conducive to their spiritual well-being i.e. a common faith; </h4><h4>(2) a common organisation; and </h4><h4>(3) designation of a distinctive name. </h4><h4>It necessarily follows that the common faith of the community should be based on religion and in that they should have common religious tenets and the basic cord which connects them, should be religion and not merely considerations of caste or community or societal status. On the basis of the evidence placed on record, the first appellate court as well as the High Court found that the Vellala community is not shown to be a distinct religious denomination, group or sect so as to be covered by Article 26 of the Constitution. Further, it was necessary for the plaintiffs to establish their claim in respect of the Temple that the said denominational group has established and is maintaining and administering the suit temple to take the protection of Article 26 of the Constitution and Section 107 of the Act. The High Court found, after meticulous and careful consideration of the material that there was no evidence to prove that the members of the Vellala community have been shown to have any common religious tenets peculiar to themselves other than those which are common to the entire Hindu community. The High Court in the impugned judgment has observed that the materials placed by the appellants at best may go to show that during a certain period, members of their community were playing a major role in the administration of the Temple. The learned Judge of the High Court also found that the material on record was not sufficient to hold that the members of the Vellala community established the Temple in question, nor was there proof of initial establishment of the Temple by them. The first appellate court held that the materials on record were not sufficient in law to show that the Vellala community initially established the Temple. Thus, the first appellate court on facts recorded findings against the plaintiffs which findings were affirmed by the High Court and rightly so, in our opinion. Here itself, we may notice one more ancillary submission of the learned counsel for the appellants that there is no presumption as regards the temples in Marthandam that they are public trusts and they must be established so, on evidence. This submission was made taking support from two decisions: (1) Mundacheri Koman v. Thachangat Puthan Vittil Achuthan Nair [AIR 1934 PC 230 : 61 IA 405] and (2) Commr., H.R.C.E. (Admn. Deptt.) v. P. Vellappan Nair [(2001) 3 LW 327] . The finding of fact in the case on hand is not recorded merely by raising a presumption. On the other hand, the finding of fact is recorded on the basis of evidence available on record. Hence, these two decisions do not advance the case of the appellants.</h4><p class=\"MsoNormal\"><br></p><p class=\"MsoNormal\"><o:p></o:p></p>', '81105bbbd7552f126eb66b04d18237f9.jpg', '39fab81e250c81ff61d308d65f800cda.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2003-07-30', 1, '', '', '2021-05-11 05:23:38', '2021-05-11 05:26:44'),
(752, 'Q1YVKa0RuAqYcZ2ipuqZLdrEF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Eminent Domain and Police Power explained. By eminent domain State may take any property and appropriate for public purpose. By police power, State may regulate public health, morals, safety etc. Supreme Court. 15 September 1967 ', '<h4>Deputy Commissioner and Collector, Kamrup and others vs Durga Nath Sarma. </h4><h4>Civil Appeal No. 1100 of 1966, decided on 15 September 1967. </h4><h4>Justice Chief Justice K.N. Wanchoo, Justice R.S. Bachawat, Justice V. Ramaswami, Justice G.K. Mitter and Justice K.S. Hegde. </h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 10. Our attention has been drawn to certain opinions expressed in our earlier decisions that Article 31(2) occupies the field of eminent domain and Article 31(5)(b)(ii) contains a saving clause with regard to the police powers of the State. The concepts of eminent domain and police powers are borrowed from American law. The constitutional guarantee of the due process clause in the United States Constitution requires that no private property shall be taken for public use without just compensation. <b style=\"background-color: rgb(255, 255, 0);\">In the exercise of its police power, the State may pass regulations designed to ensure public health, public morals, public safety as also public convenience or general prosperity</b>, see Chicago, Burlington & Quincy Railway company v. People of the State of Illinois [200 US 561 : 50 LEd 596, 609] .<b style=\"background-color: rgb(255, 255, 0);\"> In the exercise of its eminent domain power, the State may take any property from the owner and may appropriate it for public purposes.</b> The police and eminent domain powers are essentially distinct. Under the police power many restrictions may be imposed and the property may even be destroyed without compensation being given, whereas under the power of eminent domain, the property may be appropriated to public use on payment of compensation only. The distinction between the two powers is brought out clearly in the following passage in American Jurisprudence, 2nd Edn., Vol. 16, Article 301 p. 592:</h4><h4 style=\"margin-left: 25px;\">“The state, under the police power, cannot in any manner actually take and appropriate property for public use without compensation, for such action is repugnant to the constitutional guaranty that where private property is appropriated for public use, the owner shall receive reasonable compensation. Thus, there is a vital difference, which is recognised by the authorities, between an Act passed with exclusive reference to the police power of the state, without any purpose to take and apply property to public uses, and an Act which not only declares the existence of a nuisance created by the condition of particular property, but in addition, and as the best means of accomplishing the end in view, authorizes the same property to be appropriated by the public.”</h4><h4 style=\"\">In Sweet v. Rechel [159 US 380 : 40 LEd 188] the validity of an Act to enable the city of Boston to abate a nuisance existing therein and for the preservation of the public health in the city by improving the drainage of the territory was sustained on the ground that the Act provided for payment of just compensation. The Court pointed out that private property the condition of which was such as to endanger the public health could not be legally taken by the Commonwealth and appropriated to public use without reasonable compensation to the owner. In Delaware L. & W.R. Co. v. Morristown [276 US 182 : 72 LEd 523, 527] an Ordinance establishing a public hack stand on private property without payment of compensation was struck down on the ground that assuming that the creation of the public hack stand would be a proper exercise of the police power it did not follow that the due process clause would not safeguard to the owner just compensation for the use of the property. In United States v. Caltex (Philippines) [344 US 149 : 97 LEd 157] the Court held that no compensation was payable by the United States for the destruction by its retreating army of private property to prevent its falling into enemy hands. But the Court recognised that compensation would be payable for the army\'s requisitioning of private property for its subsequent use. The Court said that in times of imminent peril such as when fire threatened a whole community — the sovereign could, with immunity, destroy the property of a few that the property of many and the lives of many more could be saved. Indeed, it would be folly not to destroy some building so that an entire town may be saved from the conflagration, as will appear from the following historic incident referred to in Respublica v. Sparhawk [1 Dall 357, 363 : 1 LEd 174] :</h4><h4 style=\"margin-left: 50px;\">“We find, indeed, a memorable instance of folly recorded in the 3rd Vol. of Clarendon\'s History, where it is mentioned, that the Lord Mayor of London in 1666, when the city was on fire, would not give directions for, or consent to, the pulling down forty wooden houses or to removing the furniture etc. belonging to the lawyers of the temple, then on the circuit, for fear he should be answerable for a trespass; and in consequence of this conduct, half that great city was burnt.”</h4><div><br></div>', '85a43178aef73df3ab4f4bb45dd9543f.PNG', '19d9f0c4d23b6d737538b56f99969f0f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1967-09-15', 1, '', '', '2021-05-11 06:01:11', '2021-05-11 06:08:47'),
(753, 'VXu0nMUmTIDSrCBt86Ctn3Zfm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act 1996. Manner of deciding petition under Section 34 explained. Guidelines laid down. Karnataka High Court. 17 April 2021', '<h4>Union of India vs M/s. Warxaw Engineers. </h4><h4>COMAP 25 of 2021 decided on 17 April 2021. </h4><h4>Chief Justice Abhay S. Oka and Justice Suraj Govindaraj. </h4><h4>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380821/1/COMAP25-21-17-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380821/1/COMAP25-21-17-04-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:&nbsp;2 to 4. By this appeal preferred under sub-section (1A) of Section 13 of the Commercial Courts Act, 2015 (for short, \"the Commercial Courts Act\"), the appellant has taken an exception to the judgment and order dated 25th September 2020 passed by a learned Judge of the Commercial Court at Bengaluru. By the said judgment and order, a petition filed by the appellant under Section 34 of the Arbitration and Conciliation Act, 1996 (for short, \"the said Act of 1996\") has been dismissed. The challenge in the petition under Section 34 of the said Act of 1996 was to the award dated 1st February 2016 made by the learned Sole Arbitrator. The arbitration clause&nbsp; was incorporated in the agreement dated 22nd August 2007 concerning construction of Aircraft hanger and associated facilities at Belur Campus, Bengaluru consisting of various works. The dispute was as regards the amount payable to the respondents for the work carried out. The dispute was referred to the learned Arbitrator. The learned Arbitrator granted the claims made by the respondents partially. The award was made in the sum of Rs.1,07,05,858/- along with the interest at the rate of 10% per annum payable by the appellant.<br>11. In view of Section (1A) of Section 13 of the Commercial Court Act, an appeal lies to this Court against the judgment and order passed on a petition under Section 34 of the said Act of 1996. It is true that though for procedural reasons, even a petition under Section 34 of the said Act of 1996 is numbered as a suit and the petitioner and the respondent therein are described as the plaintiff and the defendant, the adjudication to be made in a petition under Section 34 of the said Act of 1996 is completely different from that of a suit.<br>12. We have also referred to the decision of the Apex Court which holds that the scope of interference is confined to specific grounds which are available under Section 34 of the said Act of 1996. It is also well settled that the Court should&nbsp; not interfere with an award merely because another view on facts and interpretation of contract exists. When a Judge dealing with the petition under Section 34 of the said Act of 1996 hears the petition on merits, firstly, he must advert to the grounds agitated at the time of hearing in support of the petition under Section 34 of the said Act of 1996. He has to examine whether the grounds urged are available under sub-section (2) and sub-section (2A) of Section 34 of the said Act of 1996. If the grounds pleaded are available under Section 34 of the said Act of 1996, the next step will be to consider each and every ground pressed into service on merits and to come to conclusion whether the grounds have been established.<br>13. Therefore, it is necessary for a Judicial Officer dealing with the petition under Section 34 of the said Act of 1996 to precisely record the submissions made by the counsel for the petitioner in support of the petition under Section 34 of the said Act of 1996. It is also&nbsp; necessary to precisely record the submissions made by way of reply to the specific grounds pleaded by the petitioner. It is not necessary to make verbatim reproduction of oral or written submissions. The gist of every ground agitated and reply to it by the rival party needs to be incorporated. This helps the Judges to deal with every ground urged.<br>14. Thereafter, each and every ground will have to be separately considered. It is necessary for the Judicial Officer to firstly consider whether the ground agitated is covered by any of the grounds set out under Section 34 of the said Act of 1996. If according to the learned Judge the ground agitated is not available for challenge in accordance with Section 34 of the said Act of 1996, the Judicial Officer will have to record the reasons for the said conclusion. If he is of the view that the ground agitated is available under Section 34 of the said Act of 1996, he will have to consider whether the said ground is established and record reasons in that behalf.<br>15. Now coming to the issue of decisions relied upon by the parties, it is not necessary for the Judicial Officer to quote the relevant parts of the said decisions. What is more important is that the judgment should show that the Judicial Officer has adverted to the ratio of the judgment. Only after adverting the ratio of the judgment, the Judicial Officer can come to a conclusion whether the same can be applied to the facts of the case before him.<br>16. Thus, while dealing with the petition under Section 34 of the said Act of 1996, for arriving at a correct conclusion, the Judicial Officer, as stated earlier, must precisely record the submissions canvassed in support of the petition and the submissions canvassed for opposing the petition. It is not necessary to reproduce the submissions verbatim. The substance of the grounds urged must be briefly recorded. As a remedy of an appeal is available against the judgment and order in a petition under Section 34 of the said Act of 1996, recording of the submissions made across the Bar helps the Appellate Court to decide the appeal properly. If the submissions are not properly recorded, it gives a scope to an argument that a particular submission was made before the concerned Court but the same has not been considered. If such submissions are made, as per the settled law, the Appellate Court has to relegate the aggrieved party to the same Court for making an appropriate application as the Appellate Court cannot decide what transpired before the Court which has passed the impugned order.<br>17. In the present case, we find that the submissions made in support of the petition under Section 34 of the said Act of 1996 are not properly recorded. There is a cursory&nbsp; reference to only one or two submissions in paragraph 17 of the judgment.<br>18. As stated earlier, the jurisdiction under Section 34 of the said Act of 1996 is not an appellate jurisdiction. The exercise of jurisdiction is confined to the grounds set out in Section 34 of the said Act of 1996.<br>19. In the facts of the case, we find that after having gone through the impugned judgment and order, it is very difficult for us to know what were the precise submissions made in support of the petition and for opposing the petition.&nbsp; As the submissions are not properly recorded, the learned Judge has dealt with the issue in a very cryptic manner.<br>21. Hence, we pass the following order:<br>(i) The impugned judgment and order dated 25th September 2020 in Com A.S No.71 of 2016 is hereby quashed and set aside and the said proceeding is remanded to the same Court;<br>(ii) We direct the appellant and respondents to appear before the said Court on 26th May 2021 for fixing the date for hearing;<br>(iii) We make it clear that the Commercial Court will be under no obligation to issue notice of the date fixed to the authorities;<br>(iv) Considering the fact that the petition is of the year 2016, we are sure that the learned Judge of the Commercial Court will give necessary out of turn priority to the disposal of the petition;<br>(v) The appeal is partly allowed on the above terms;<br>(vi) There is no order as to costs;<br>(vii) The pending interlocutory application does not survives for consideration and stands disposed of.<br><br><br><br><br><br><br>AHB</h4><div><br></div>', '34db0c7ff9c92c05b174310cf98be561.png', '24ac46958e1c1a4de1399b67a8464c47.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-17', 1, '', '', '2021-05-12 19:02:59', '2021-05-12 19:02:59');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(754, 'mY1PIXZM0ajyiKOSeJpO8YW8q', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. Testimony of a witness who identified the accused for the first time in Court without knowing him before, and in the absence of any Test Identification Parade, would be valueless and unreliable. Karnataka High Court. 5 May 2021', '<h4>Keshava @ Choni vs State of Karnataka. </h4><h4>Criminal Appeal 1616 of 2016 decided on 5 May 2021. </h4><h4>Justice B.Veerappa and Justice Ravi V Hosmani. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/381110/1/CRLA1128-16-06-05-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/381110/1/CRLA1128-16-06-05-2021.pdf</a> </h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 56. Further, the present case, the Test Identification Parade was not conducted by the Investigating Authority and the so called eye witnesses – PWs.1 and 2 have not identified the accused Nos.2 to 11 and in fact they have admitted in the examination-in-chief that they are able to identify Accused Nos.2 to 6 on the basis of the paper publication disclosing the names and photos and the information  given  by the Police. <b style=\"background-color: rgb(255, 255, 0);\">The purpose of conducting a Test Identification Parade is that persons who claim to have seen the offender at the time of the occurrence identify them from amongst the other individuals without tutoring or aid from any source. An identification parade, in other words, tests the memory of the witnesses, in order for the prosecution to determine whether any or all of them can be cited as eye witnesses to the crime of the witnesses, in order for the prosecution to determine whether any or all of them can be cited as eye witnesses to the crime.</b></h4><h4>57. Our view is fortified by the judgment of the Hon’ble Supreme Court in the case of Rajesh v. State of Haryana, (2021) 1 SCC 118, wherein the Hon’ble Supreme Court held at paragraphs 43, 43.4 and 43.8 as under:</h4><h4 style=\"margin-left: 25px;\">“Refusal to undergo test identification parade (TIP):<br>43. The prosecution has submitted that an adverse inference should be drawn against the appellants for refusing to submit themselves to a TIP. Before we deal with the circumstances in which the appellants declined a TIP, it becomes essential to scrutinise the precedent from this Court bearing on the subject. A line of precedent of this Court has dwelt on the purpose of conducting a TIP, the source of the authority of the investigator to do so, the manner in which these proceedings should be conducted, the weight to be ascribed to identification in the course of a TIP and the circumstances in which an adverse inference can be drawn against the accused who refuses to undergo the process. The principles which have emerged from the precedents of this Court can be summarised as follows:<br>xxx <br>43.4. A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude a possibility of the accused being shown to the witnesses before it is held.<br>43.8. As a rule of prudence, the court would, generally speaking, look for corroboration of the witness\' identification of the accused in court, in the form of earlier identification proceedings. The rule of prudence is subject to the exception when the court considers it safe to rely upon the evidence of a particular witness without such, or other corroboration.”</h4><h4>59. Our view is also fortified by the dictum of the Hon’ble Supreme Court in the case of Mohd. Iqbal M. Shaikh v. State of Maharashtra reported in (1998)4 SCC 494, wherein the Hon’ble Supreme Court held at paragraphs 17,19 and 20 as under:</h4><h4 style=\"margin-left: 25px;\">17. The only other witness on whom the prosecution relied upon to bring home the charge against the accused persons is Krishna Harishchandra Kate, PW 10, who was also residing in Gandhi Chawl. He is the brother of PW 2 and his statement was recorded by the police for the first time on 29-1-1993. He has stated in his evidence that he was called to the office of the Crime Branch where the police showed him 3 to 4 accused persons but he neither knows their names nor would be in a position to identify them in the Court even by face. It is his further evidence that he was called upon by the police 15 days thereafter and he was shown another accused person but he does not remember the name of that accused person nor is in a position to identify him in court. He also stated that he was called to the police station at Kandivili on 22-4-1993 where police showed him one accused but he does not know the name of that accused person nor can he identify the same by face. Though in the Court he had stated that between 6-12-1992 to 7-1-1993 the goondas of the locality were threatening them but he had not stated so in his earlier statement made before the police. In the Court he had also stated that he had never made any complaint on that score before. On being cross-examined he candidly admitted that he could not insert his head through the grill to see what was happening outside, and therefore, he climbed on a loft and from there he could see the incident through the window. But neither the investigating officer nor any other person has stated about the existence of such a loft. It was elicited in his cross-examination that he was sitting inside the house from the time when the accused started pouring kerosene till the accused went away is not correct. A scrutiny of his evidence clearly indicates that it bristles with inconsistencies and improbabilities and the witness has contradicted  from his statement made to the police which makes him thoroughly unreliable and it is difficult for us to place any reliance on the testimony of such a witness.<br>19.We are quite aware of the principle that in a country like India where it is difficult to find a witness who has not made any embellishment or exaggeration, and therefore, in such case court would be justified in separating the chaff from the grain and then act upon the grain. But where the evidence consists of only chaff as in the present case, the question of separating the chaff from the grain would not arise. Then again when all the eyewitnesses suffer from the same infirmities as has been discussed by us, the question of one corroborating the other would not arise. If a witness is partly reliable and partly unreliable then one may look for corroboration to the reliable part of the ocular version of a witness. But if a witness is wholly unreliable as has been assessed by us, the question of corroboration does not arise. It is no doubt true that the incident with which we are concerned in the present case was a ghastly one and on account of communal frenzy several people belonging to one community were burnt alive by some others but unless and until the prosecution evidence conclusively establishes those others as the perpetrators of the crimes, it is not possible for a court of law to record conviction on mere conjectures and hypothesis.<br>20. As we have discussed earlier the investigating agency merely on suspicion have roped in the persons belonging to the other community who were residing in the locality and then somehow tried to get them identified through the witnesses who belong to the community from where the people were burnt alive and the learned Designated Court was swayed away by the so-called evidence of identification and based the conviction. We have already discussed as to how unreliable the evidence of these eyewitnesses is and no court on the basis of such unreliable evidence can base conviction, howsoever ghastly the crime may be. In the aforesaid premises we set aside the conviction and sentence passed by the learned Designated Court under the provisions of TADA as well as under different sections of the Penal Code, 1860 and direct that the appellants be set at liberty forthwith unless they are required in any other case.</h4><h4>60. The Hon’ble Supreme Court while considering the testimony of a witness who identified the accused for the first time in Court without knowing him before, in the absence of any Test Identification parade, held, would be valueless and unreliable. Admittedly in the present case, it is not the case of the prosecution that the eye witnesses have identified the accused persons before coming to the Court in the absence of any source or information or aid either from the Police or the newspaper cuttings.  Therefore,  the evidence of PWs.1 and 2 would be valueless and unreliable.<br>61.Our view is fortified by the dictum of the Hon’ble Supreme Court in the case of Mohanlal Gangaram Gehani v. State of Maharashtra reported in (1982) 1 SCC 700, wherein the Hon’ble Supreme Court held at paragraphs 20 and 25 as under:<br></h4><h4 style=\"margin-left: 25px;\">20. Thus, as Shetty did not know the appellant before the occurrence and no test identification parade was held to test his power of identification and he was also shown by the police before he identified the appellant in court, his evidence becomes absolutely valueless on the question of identification. On this ground alone, the appellant is entitled to be acquitted. It is rather surprising that this important circumstance escaped the attention of the High Court while it laid very great stress in criticising the evidence of Dr Heena when her evidence was true and straightforward.<br>25. The only other evidence against the appellant is that of PWs 3 and 4. So far as PW 3 is concerned his evidence also suffers from the same infirmity as that of Shetty. PW 3 (Shaikh) admits at p. 22 of the paper-book that he had not seen the accused or any of the three accused before the date of the incident and that he had seen all the three for the first time at the time of the incident. He further admits that the names of the accused were given to him by the police. In these circumstances, therefore, if the appellant was not known to him before the incident and was identified for the first time in the court, in the absence of a test identification parade the evidence of PW 3 was valueless and could not be relied upon as held by this Court in V.C. Shukla v. State (Delhi Admn.) [(1980) 2 SCC 665 : 1980 SCC<br>(Cri) 561 : (1980) 3 SCR 500] where this Court made the following observations:(SCC p. 677, para 24)<br>“Moreover, the identification of Tripathi by the witness for the first time in the court without being tested by a prior test identification parade was valueless.”</h4><h4 style=\"\"><span style=\"background-color: rgb(255, 255, 0);\"><b>Criminal Appeal No.1128/2016 is allowed in part.</b></span></h4><div><br></div>', 'e3ee6908e4d54debb45cbdce52d55965.PNG', '77dd8e5cc04401a9e456415e6060ff16.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-05', 1, '', '', '2021-05-13 04:14:31', '2021-05-13 04:16:38'),
(755, 'Wk0S2DTgIb0I7Rk0Rp5k5Dts8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Single post by direct recruitment cannot be reserved in any manner. Even clubbing of all the vacancies in all the subjects and reserving a single post in a subject is impermissible. Case law discussed. Karnataka High Court.17 April 2021', '<h4>Rashmi M.S. vs State of Karnataka and others. </h4><h4>Writ Petition 51487 of 2019 decided on 17 April 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/381100/1/WP51487-19-17-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/381100/1/WP51487-19-17-04-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 11.<span style=\"white-space:pre\">	</span>The issue with regard to a single post available and notified which is to be filled up by way of direct recruitment could be reserved or not in favour of candidates belonging to Scheduled Caste which would amount to 100% reservation is dealt with by the Apex Court and this Court in plethora of cases. I find it germane to notice those judgments in the light of the judgments relied on by the learned counsel for the State and the College. Dalvoy Anglo Sanskrit School Collette vs K.S. Narasappaiah, I.L.R. 1991 KAR 1880 referred. </h4><h4>14. .....The  Three Judge Bench judgment of the Apex Court in the case of Post  Graduate  Institute  of  Medical Education<span style=\"white-space:pre\">	</span>& Research v. K.L. Narasimhan [(1997)  6  SCC  283  was  reviewed   and   reconsidered  by Five Judge Bench of the Apex Court in the case of Post Graduate Institute of Medical Education & Research vs Faculty Association (1998) 4 SCC 1 and the judgment in the Three Judge Bench of the Apex Court is specifically overruled and set aside. This judgment <i>(<span style=\"font-size: 1.3125rem;\">Post  Graduate  Institute  of  Medical Education </span><span style=\"font-size: 1.3125rem;\">& Research v. K.L. Narasimhan [(1997) 6 SCC 283)</span></i><span style=\"font-size: 1.3125rem;\"> </span>that had been overruled is  followed  by the learned Single Judge in Dr. Charangowda B.K. vs State of Karnataka and others, (Writ Petition 41440 of 2017 decided on 25 October 2018) which in my considered view is a judgment  which  is per incuriam, </h4><h4>15. Insofar as clubbing of the vacancies is concerned, for application of reservation i.e., clubbing of all the vacancies in all the subjects and  then notifying  the post and reserving the same in favour of candidates belonging to either Scheduled Castes or  Scheduled  Tribes will also fall foul of the judgments  rendered by  the Apex Court. The Apex Court following the judgments rendered earlier had clearly held that reservation shall  be subject/discipline-wise. Clubbing of vacancies and operating the roster is contrary to the judgments rendered earlier. <br>16.<span style=\"white-space:pre\">	</span>For the aforesaid reasons, I pass the following order:<br>ORDER<br>(i) Writ Petition is allowed.<br>(ii) Impugned notification dated 22.09.2019 (Annexure-C) stands quashed and all further proceedings taken up by the 4th respondent/P.E.S. P.U. College in terms of the impugned notification also stand  quashed.<br>(iii) However, the College is at liberty to fill  up  the post by notifying the same in accordance with law and in the light of the observation made hereinabove.<br>(iv) Till such exercise is undertaken, the services of the petitioner shall not be disturbed.<br>(v) No costs.<br><br></h4>', '743e012b1f249e05fd1a87abb035ae72.jpg', '41215ebac13b5b08cba354df1ed7518c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-17', 1, '', '', '2021-05-13 05:17:48', '2021-05-13 05:19:31'),
(756, 'QfAvipg02RnlJwimsDcbvpQHJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constitution of India. Summary dismissal of Petition under Article 32 by the Supreme Court is NOT a bar for High Courts to entertain Writ Petition under Article 226. Karnataka High Court. 16 April 2021', '<h4>Akash Sethi and others vs Union of India and others. </h4><h4>Writ Petition 5317 of 2019 decided on 16 April 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/381101/1/WP5317-19-16-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/381101/1/WP5317-19-16-04-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:&nbsp;1) Whether the writ petition filed under Article 226 is not maintainable on&nbsp; the&nbsp; ground&nbsp; that the petitions filed under Article 32 of the Constitution of India have been dismissed in limine on the same set of facts and the prayer?<br>9. Whether the writ petition filed under Article 226 of the Constitution of India is not maintainable on the ground that the petitions filed under Article 32 of&nbsp; the&nbsp; Constitution&nbsp; of India have been dismissed in limine on the same set of facts and the prayer?<br>It is not in dispute that the petitioners and the like had approached the Apex Court by filing a writ petition under Article 32 of the Constitution of India. The Apex Court on 01-07-2019 dismissed the writ petition by the following order:</h4><h4 style=\"margin-left: 25px;\">“Heard learned counsel appearing for&nbsp; the parties. We see<span style=\"white-space:pre\">	</span>no reason to entertain this petition. This writ petition is dismissed. Pending applications, if any, also stand disposed of”.</h4><h4 style=\"\">The aforesaid order of the Apex Court&nbsp; dismissing&nbsp; the writ petition under Article 32 of the Constitution does&nbsp; not determine the rights of the parties. The Apex Court found no reason to entertain the petition. Article 32 of the Constitution reads as follows:-</h4><h4 style=\"margin-left: 25px;\">“32. Remedies for enforcement of rights conferred by this Part:<br>(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by&nbsp; this Part is guaranteed<br>(2) The Supreme Court shall have power to issue directions or orders or writs,&nbsp; including writs in the nature&nbsp; of&nbsp; habeas&nbsp; corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.<br>(3) Without prejudice to the powers conferred on the Supreme Court by Clause (1) and (2),Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme&nbsp; Court&nbsp; under Clause (2).<br>(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.”</h4><h4 style=\"\">Article&nbsp; 32 of the Constitution as extracted hereinabove is exercisable only on an infringement of a fundamental right which the Apex Court found in the case on hand that there is no fundamental right of the petitioners infringed that too without determining or adjudicating the matter. It is after this, the petitioners have filed the present writ petition under Article 226 of the Constitution of India with the same prayer. A Constitution Bench of the Apex Court in the case of Daryao &amp; others Vs. State of U.P. &amp; others reported in AIR 1961 SC 1457, analyzing the principle whether Article 226 of the Constitution would be a bar&nbsp; to maintain a petition under Article 32 or once a petition is filed under Article 32 of the Constitution would be a bar for the High Courts to entertain the petition under&nbsp; Article 226 of the Constitution, the Apex Court has held as follows:</h4><h4 style=\"margin-left: 25px;\">“15.The next question to consider is whether it makes any difference to the application of this rule that the decision on which the plea of res judicata is raised is a decision not of this Court but of a High Court exercising its jurisdiction under&nbsp; Art. 226. The argument is that one of the essential requirements of S. 11 of the Code of Civil Procedure is that the Court which tries the first suit or proceeding should be competent to try the second suit or proceeding, and&nbsp; since the High Court cannot entertain an application under Art. 32 its decision cannot be treated as res judicata for the purpose of such a petition. It is doubtful if the technical requirement prescribed by S. 11 as to the competence of the first Court to try the subsequent suit is an essential part of the general rule of res judicata; but assuming that it is, in substance even the said test is satisfied because the jurisdiction of the High Court in dealing with a writ petition filed under Art. 226 is substantially the same as&nbsp; the jurisdiction of this Court in entertaining an application under Art. 32. The scope of the writs, orders or directions which the High Court can issue in appropriate cases under Art. 226 is concurrent with the scope of similar writs, orders or directions which may be issued by this Court under Art. 32. The cause of action for the two applications would be the same. It is the assertion of the existence of a fundamental right and its illegal contravention in both cases and the&nbsp; relief claimed in both the&nbsp; cases&nbsp; is&nbsp; also&nbsp; of the same character. Article 226&nbsp; confers jurisdiction on the&nbsp; High&nbsp; Court&nbsp; to entertain a suitable writ petition, whereas Art. 32 provides&nbsp; for&nbsp; moving this Court for a similar writ petition for the same purpose. Therefore, the argument that a petition under Art. 32 cannot be entertained by a High Court under Art. 226&nbsp; is&nbsp; without&nbsp; any substance: and so the plea that the judgment of the High Court cannot be treated as res judicata on the ground&nbsp; that it cannot&nbsp; entertain&nbsp; a&nbsp; petition&nbsp; under Art. 32 must be rejected.<br>16. It is,&nbsp; however,&nbsp; necessary&nbsp; to&nbsp; add that in exercising its jurisdiction under Art. 226 the High Court may sometimes refuse to issue an appropriate writ or order on the ground that the party applying for the writ is guilty of laches and&nbsp; in&nbsp; that&nbsp; sense&nbsp; the&nbsp; issue of a high prerogative writ&nbsp; may&nbsp; reasonably be treated as a matter of discretion. On the other hand, the right granted to a citizen to move this Court by appropriate proceedings under Art. 32( 1) being itself a fundamental right this Court ordinarily may have to issue an appropriate writ or order provided it is shown that the petitioner has a fundamental right which has been illegally or unconstitutionally contravened. It is not unlikely that if a petition is filed even sunder Art. 32 after a long lapse of time considerations may arise whether rights in favour of third parties which may&nbsp; have arisen in the meanwhile could be allowed to be affected, and in such a case the effect of laches on the part of the petitioner or of his acquiescence may have to&nbsp; be&nbsp; considered; but, ordinarily if a petitioner makes out a case for the issue of an appropriate writ or order he would be entitled to have such a&nbsp; writ or order under Art. 32 and that may be said to constitute a difference in the right conferred on a citizen to move&nbsp; the&nbsp; High Court under Art. 226 as distinct from the right conferred on him to move this Court. This difference must inevitably mean that if the High Court has refused to exercise its discretion on the ground of laches or on the ground that the party has an efficacious alternative remedy available to him then of course the decision of the High Court cannot generally be pleaded in support of the bar of res judicata. If however,&nbsp; the&nbsp; matter&nbsp; has been considered on the merits and the High Court has dismissed the petition&nbsp; for&nbsp; a&nbsp; writ on the ground that no fundamental right is proved or its breach is either not established or is shown to&nbsp; be constitutionally justified there is no reason why the said decision should not be treated as a bar against the competence of a subsequent petition filed by the same party on the&nbsp; same&nbsp; facts&nbsp; and&nbsp; for the same reliefs under Arts. 32.<br>19.We must now proceed to state our conclusion on the preliminary objection raised by the respondents. We hold that if a writ petition filed by a party under Art. 226 is considered on the merits as a contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move this Court under Art. 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. If the petition filed in the High Court under Art. 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Art. 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Art. 32 If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend up on the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which we have already indicated. If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is ture that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the&nbsp; Court&nbsp; took&nbsp; the view that there was no substance in the petition at all: but in the absence of a speaking order it would not&nbsp; be&nbsp; easy&nbsp; to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a&nbsp; summary dismissal is a dismissal on merits&nbsp; and&nbsp; as such constitutes a&nbsp; bar&nbsp; of&nbsp; res&nbsp; judicata against a similar petition filed under Art. 32. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Art. 32. Because in such a case there has been no decision on the merits by the Court. We wish to make if clear that the conclusion thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other. It is in&nbsp; the light&nbsp; of this decision that we will now proceed to examine the position in the six&nbsp; petitions before us.”</h4><h4 style=\"\">In terms of the&nbsp; law declared by the Apex Court supra,&nbsp; the writ petition before this Court under Article 226 of the Constitution would be maintainable albeit dismissal of the writ petition filed before the Apex Court under Article 32 of the Constitution of India if the dismissal of the petition is not on its merit.&nbsp; Therefore,&nbsp; the submission that the writ petition ought to be dismissed on the principle of res judicata deserves to be rejected&nbsp; &nbsp;on the plain reading of the Article and its interpretation by the Apex Court in the afore-extracted judgment.&nbsp;<br>15. For the praefatus reasons, I pass the following:<br>ORDER<br>(a) Writ Petition is allowed.<br>(b) A mandamus is issued to the respondents/RRBs to consider the case&nbsp; of&nbsp; the petitioners who are found eligible in the reserve list and offer them appointments, if they are found to be otherwise eligible.<br>(c) This exercise shall be completed by respondents 2 to 4 herein&nbsp; as&nbsp; expeditiously&nbsp; as possible and at any event, within three months from the date of receipt of a copy of this order.<br>&nbsp;<br><br></h4>', 'cd57c6a0329cf8e4828fdd74b540fa07.jpg', '25e3092c58efb2acaa1f19d073dc5f88.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-16', 1, '', '', '2021-05-14 01:18:40', '2021-05-13 15:07:19');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(757, 'PxGJA1vr1ZxtZxxs2Kp12OiG2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal trial. Court is duty bound to avoid delay in trial and to secure presence of the accused. Court can on its own take recourse to Section 82 Cr.P.C. and issue proclamation and initiate follow up action. Karnataka High Court. 9 April 2021', '<h4>Nithya Shambhavananda@R.Narayanan vs State of Karnataka.<br>Writ Petition 10076 of 2020 decided on 9 April 2021.<br>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/378872/1/WP10076-20-09-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/378872/1/WP10076-20-09-04-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraph</span>s: 1. The petitioner is before this Court seeking for certiorari to stay the order dated 5.6.2020 passed in S.C.No.86/2014 by the III Addl. Sessions Judge, Ramanagara ordering the attachment of the petitioner’s property bearing Survey No.251, Heggadegere village, Bidadi Hobli, Ramanagara Taluk, Bangalore Rural District under Section 83 of the Code of Criminal procedure (Cr.P.C.), confirmed by order dated 29.06.2020 on an application filed by the petitioner under Section 84 of Cr.P.C.<br>2.2. The petitioner allegedly owns and possesses several immovable properties that are situated across the State of Karnataka and Tamil Nadu. The petitioner is stated to be involved in philanthropic activities such as providing skill training and employment for the underprivileged, nurturing the educational and social needs, setting up Goshala, distribution of milk and other dairy products free of cost to children and members of economically weaker sections and deserving sections of the society, etc.<br>2.3.<span style=\"white-space:pre\">	</span>It is contended that one such Goshala Housing more than 300 cows is set up by the petitioner in immovable bearing in Sy.No.251, Heggadegere village, Bidadi Hobli, Ramanagara Taluk, Bangalore Rural District.<br>2.4.<span style=\"white-space:pre\">	</span>In S.C. No. 86/2014, which is pending on the file of the III Addl. Sessions Judge, Ramanagara, the said Judge by way of his order dated 5.6.2020 passed under Section 83 of Cr.P.C. is alleged to have called upon the Deputy Commissioner, Ramanagara District to attach the property bearing Sy.No.251, Heggadegere village, Bidadi Hobli, Ramanagara Taluk, Bangalore Rural District, on the ground that the said property was belonging to one Sheelam Gopal Reddy.<br>2.5.<span style=\"white-space:pre\">	</span>Sheelam Gopal Reddy is accused No.2 in the said case, who had remained absent despite issuance of court notice and order of proclamation against him for the purpose of securing his presence in the said case despite the prosecution being fully aware that the attached property belongs to the petitioner.<br>2.6.<span style=\"white-space:pre\">	</span>It is contended that the aforesaid property came to be vested in the petitioner vide a registered agreement of sale dated 27.6.2018 executed by Sheelam Gopal Reddy, who was the erstwhile owner of the property after receiving a total consideration of Rs.2,25,75,000/- through his son and Power of Attorney Yasaswi Sheelam Reddy.<br>2.12.<span style=\"white-space:pre\">	</span>After hearing the said application dated 18.6.2020, III Addl. District and Sessions Judge vide its order dated 5.6.2020 in S.C.No.86/2014 rejected the said application, confirmed the attachment order and directed the communication of the same to the Deputy Commissioner, Ramanagara District. It is aggrieved by the same that the petitioner is before this Court.<br>3. Sri.C.V.Nagesh, learned Senior counsel instructed by Sri.AjayKadkol, learned counsel for the petitioner submitted as under:<br>3.1. The accused, Sheelam Gopalam Reddy, has not been proclaimed as an absconder. It is only on such proclamation as an absconder that the property of the accused can be sought for attachment.<br>3.2. For the accused to be an absconder, the accused ought not to have appeared before the concerned Court despite service of notice and despite the accused having been given an opportunity to appear before the concerned Court.<br>3.3.<span style=\"white-space:pre\">	</span>In the present case, Sheelam Gopalam Reddy has not been declared or proclaimed as absconding. Hence, without such declaration, the accused Sheelam Gopalam Reddy cannot be said to be absconding, and consequently, no attachment of his property could be made under Section 83 of the Cr.P.C.<br>3.4.<span style=\"white-space:pre\">	</span>Since the accused has not been declared to be absconding, nothing prevented the petitioner from purchasing the property of the accused, and as such, the accused, after conducting due diligence, has purchased the property, and now the petitioner cannot be put to a loss by attaching the property on the ground that the accused is absconding and/or that the property is required to be attached so as to prevail upon the accused to appear before the Court.<br>3.5.<span style=\"white-space:pre\">	</span>Property that does not belong to the accused person cannot be attached in a criminal case for the purpose of securing the appearance of such accused before the trial Court;<br>3.6.<span style=\"white-space:pre\">	</span>That the property having been transferred to the petitioner under a registered agreement of sale whereunder, the entire sale consideration has been received, and possession of the property has been handed over to the petitioner.<br>5. Having heard both the counsels, the points that would arise for consideration by this Court are:<br>5.1.<span style=\"white-space:pre\">	</span>Who could be declared as a proclaimed offender or a proclaimed absconder?<br>5.2.<span style=\"white-space:pre\">	</span>Whether a proclamation of an accused to be an absconder under Section 82 of the Cr.P.C. is a sine qua non for the purpose of the exercise of rights and/or powers under Section 83 for attachment of the properties of such absconding person or could a property of a person absconding be attached without proclaiming such person as absconding?<br>5.3. When can a property of the accused be attached under Section 83 of the Cr. P.C?<br>5.4. Whether while exercising powers under Section 83 of Cr.P.C, the property which would be attached is required to belong to the accused/absconder?<br>5.5. Would the word ‘belong’ used in Section 83 of Cr.P.C mean merely that the property stands in the name of the said accused/absconder or would the interest of any third party in the said property require to be considered?<br>5.6. What is the mode and methodology of attaching the property, is the order of attachment of the property be passed by the concerned Court or can it be delegated to the jurisdictional Deputy Commissioner to attach the property?<br>5.7. Can the agreement holder challenge the attachment on the ground that the agreement holder has an interest in the property, i.e. to say would the mere agreement to sell confer an interest on such a person to lodge a claim or objection to the attachment in terms of Section 84 of Cr.P.C.?<br>5.8. Whether the court passing orders under Section 83 and 84 of Cr.P.C, as also this Court can look into the factum of fraudulent transfer while considering the application under Section 84 of Cr.P.C, or a petition challenging the order passed under Section 84 of Cr.P.C.?<br>5.9. In the event of the dismissal of a claim or objection of such third party, would the third party be required to file a suit in terms of Section 84(4) of the Act, or could such a person approach this Court by way of the writ petition, more so when there is no dispute as regards the agreement entered into by such third party raised<span style=\"white-space:pre\">	</span>by the owner of the property?<br>5.10.<span style=\"white-space:pre\">	</span>Would the alternative remedy under Section 84(4) be an embargo for such a person to approach this Court by way of a writ petition?<br>7. Answer to point No.1: Who could be declared as a proclaimed offender or a proclaimed absconder?<br>7.1. Section 204(1) of The Code of<span style=\"white-space:pre\">	</span>Criminal Procedure, 1973 (CrPC) states that when the Magistrate who is empowered to take cognisance is satisfied that the case is a:<br>7.1.1. Summons case, then he shall issue a summons for the attendance of the person accused.<br>7.1.2. Warrant case, then he may issue a warrant or a summons to present the accused before the Court at a certain time.<br>7.2. Section 204(5) states that nothing in this section shall affect the provisions of Section 87 of the Code.<br>7.3. Section 87 empowers the Court to issue warrant in lieu of, or in addition to, summons. A Court empowered to issue a summons for the appearance of any person, may issue, after recording its reasons in writing, a warrant for his arrest-<br>7.3.1. if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or<br>7.3.2. if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.<br>7.4. Sometimes even after issuance of a warrant the accused is not served or the accused is not capable of being served, the Court would have to take further steps like proclamation etc., to compel the attendance of the accused.<br>7.5. Many a time, the words “proclaimed offender” and “proclaimed absconder” are used interchangeably, as was done in the present case also during the course of arguments.<br>Proclaimed Absconder<br>7.6. An examination of Section 82 of Cr.P.C. would indicate that if any Court has a reason to believe that any person against whom a warrant has been issued has absconded or is concealing himself so that such warrant cannot be executed, the Court could publish a written proclamation requiring such person to appear at a specified place, at a specified time. Section 82 also provides for the manner in which such publication could be made, i.e., in the following manner.<br>i. Publicly read in some conspicuous place or village in which such person ordinarily resides;<br>ii. Publicly read in some conspicuous place of the&nbsp; town or&nbsp; village&nbsp; in&nbsp; which&nbsp; such person ordinarily resides;<br>iii. Affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;<br>iv. Affixed to some conspicuous part of the Courthouse;<br>7.7. The Court could also direct the proclamation to be published in a daily newspaper, circulating in the place in which such person ordinarily resides.<br>7.8. Once such a proclamation is published under Subsection (1) of Section 82, and if such person fails to appear at the specified place and time as required by the proclamation, the Court may, after making such enquiry as is required, pronounce him to be an absconder and make a declaration that such a person is&nbsp; a proclaimed absconder.<br>Proclaimed Offender<br>7.9. The Court<span style=\"white-space:pre\">	</span>may,&nbsp; if it<span style=\"white-space:pre\">	</span>deems fit, declare a person as a ‘proclaimed offender’ under Section 82(4), when a person fails to appear before the Court as required under the proclamation, if the accused is alleged to have committed offences punishable under the following Sections of the Indian Penal Code&nbsp; of 1860 (IPC):<br>Section 302 – Offence of Murder<br>Section 304– Offense of culpable homicide not amounting to murder.<br>Section 364– Offense of kidnapping or abducting to commit murder.<br>Section 367– Offense of kidnapping or abducting in order to subject a person to grievous hurt, slavery, etc.<br>Section 382– Offense of theft and preparation made for causing death, hurt or restraint in order to the committing of the theft.<br>Section 392– Offense of robbery.<br>Section 393– Offense of attempt to commit robbery.<br>Section 394– Offense of Voluntarily causing hurt in committing robbery.&nbsp;<br>Section 395– Offense of dacoity.<br>Section 396– Offense of dacoity with murder.<br>Section 397– Offense of robbery, or dacoity, with an attempt to cause death or grievous hurt.<br>Section 398– Offense of attempt to commit robbery or dacoity when armed with a deadly weapon.<br>Section 399– Offense of making preparation to commit dacoity.<br>Section 400– Offense of belonging to the gang of dacoits.<br>Section 402– Offense of assembling for the commission of dacoity.<br>Section 436– Offense of mischief by fire or explosive substance with intent to destroy a house, etc.<br>Section 449– Offense of house- trespass in order to commit an offence punishable with death.<br>Section 459– Offense of grievous hurt caused whilst committing lurking house-trespass or house-breaking.<br>Section 360- Offence of Kidnapping from India.<br>7.10.<span style=\"white-space:pre\">	</span>If the offences alleged against such a person are punishable under the above provisions and if such person fails to appear at the specified place and time as required by the proclamation, the Court may, after making such enquiry as is required, pronounce him to be an offender and make a declaration that such a person is a proclaimed offender, as a corollary, unless the person is accused of having committed offences punishable under Section 302, 304, 364, 367, 382, 392 to 400,<br>402, 436, 449, 459 or 460 of the IPC, such person cannot be declared a proclaimed offender.<br>7.11. Thus it can be seen that the scope, ambit and purport of a proclaimed offender is only as regards a particular set of offences and not as regards all offences.<br>7.12. A reading of Section 82(4) would indicate that only if a person is accused of offences mentioned in Section 82(4) than a person could be declared a proclaimed offender.<br>7.13.<span style=\"white-space:pre\">	</span>If the person is charged with offences other than those detailed under Section 82(4), he cannot be declared as a proclaimed offender.<br>7.14.<span style=\"white-space:pre\">	</span>I answer point No.1 by holding that the Court could either suo moto or, on an application being made by the prosecutor, issue a proclamation calling upon the accused to appear at a particular time and place, if the accused were not to appear.<br><b style=\"background-color: rgb(255, 255, 0);\">7.15. If a proclamation is published and the accused were not to appear, the Court could suo motu or on an application being made by the prosecutor declare the accused an absconder.&nbsp;</b><br>7.16.<span style=\"white-space:pre\">	</span>If the offences are punishable under Section 302, 304, 364, 367, 382, 392 to 400, 402, 436, 449, 459 or 460 of the IPC, he/she can be declared proclaimed offender. Thus a proclaimed absconder is a sub-set of a proclaimed offender.<br>8. Answer to point No.2 Whether a proclamation of an accused to be an absconder under Section 82 of the Cr.P.C. is a sine qua non for the purpose of the exercise of rights and/or powers under Section 83 for attachment of the properties of such absconding person or could a property of a person absconding be attached without proclaiming such person as absconding?<br>8.1.<span style=\"white-space:pre\">	</span>The discussion on point no.1 details out the manner in which a person can be proclaimed either as an absconder or an offender.<br>8.2.<span style=\"white-space:pre\">	</span>In terms of Section 83, only the property of the proclaimed person either movable or immovable can be attached. Thus the proclamation under Section 82(3) would be a precondition and/or a sine qua non for the purpose of the exercise of powers under Section 83 of Cr.P.C. for attachment of the properties of such proclaimed person.<br>8.3.<span style=\"white-space:pre\">	</span>As a corollary, if a person is not a proclaimed absconder/offender and/or the process and procedure under Section 82(2) and 82(3) has not been followed, then in that event, the powers under Section 83 cannot be exercised so as to attach the properties of the accused, who has not been proclaimed to be absconding.<br>8.4.<span style=\"white-space:pre\">	</span>The only exception provided is by the proviso to Section 83, whereunder the Court could attach the property of the accused at the time of proclamation itself if the Court is satisfied by an affidavit or otherwise that the said person is about to dispose of the whole or any part of the property or is about the remove the whole or any part of the property from the local jurisdiction of the Court in such cases the attachment of the property could be made simultaneous to the order of proclamation.<br>8.5.<span style=\"white-space:pre\">	</span>Even this exception does not completely do away with the requirement of proclamation inasmuch as the attachment could be made along with the proclamation not before the proclamation.<br>8.6.<span style=\"white-space:pre\">	</span>Apart from the attachment of property, such a proclaimed absconder and or offender would also be amenable to further punishment. Section 174-A in the IPC has been inserted by virtue of the Criminal Law (Amendment) Act&nbsp; of 2005 in terms whereof<br>8.6.1. a proclaimed absconder under section 82(1) of the Cr.P.C, shall be punished with imprisonment for a term that may extend to three years.<br>8.6.2. A proclaimed offender under section 82(4) of the Cr.P.C shall be punished with imprisonment for a term that may extend to seven years along with fine.<br>8.7.<span style=\"white-space:pre\">	</span>I answer point No.2 by holding that a proclamation of an accused to be an absconder under Section 82 of the Cr.P.C. is a sine qua non for the purpose of the exercise of rights and/or powers under Section 83 for attachment of the properties of such absconding person.<br>8.8.<span style=\"white-space:pre\">	</span>A property of a person absconding cannot be attached without proclaiming such person as absconding, except in the emergent circumstances prescribed in the proviso to Section 83.<br>9. Answer to point No.3: When can a property of the accused be attached under Section 83 of the Cr. P.C?<br>9.1. Section 83 of Cr.P.C deals with the attachment of property of a person absconding.<br>9.2. The Court which had issued a proclamation under Section 82 may for reasons to be recorded in writing, any time after the issuance of proclamation order the attachment of any property movable or immovable or both belonging to the proclaimed person.<br>9.3. The proclamation as regards a proclaimed person under 83(1) can therefore only be traced to Section 82(2), once such proclamation is made as regards a person and such person does not appear before the Court at the specified time and specified place, then such person can be termed as a proclaimed absconder and his property could be attached.<br>9.4. Though there is a difference between a ‘proclaimed absconder’ and ‘proclaimed offender’ for other purposes under the Cr. P.C. For the purposes of attachment of the property, so long as a person is proclaimed the same would be sufficient to attach his property.<br>9.5. The property of the accused who is proclaimed can be attached and later disposed of in order to compel the accused’s appearance in Court. For disobedience of a proclamation the accused would also be liable to be punished under section 174 of the Indian Penal Code. This provision is devised to put additional pressure on the accused by depriving the accused of his/her property, with a view to compel attendance in Court.<br>9.6. The procedure laid down under section 83 has to be followed strictly. Jurisdiction to pass attachment order cannot be assumed unless a proclamation under section 82 of the code has been issued. It may be advisable for the Court to wait for a period of thirty days, to enable the accused to appear in terms of the proclamation. The words at any time after the issue of proclamation are not to be interpreted in isolation. The key for gathering the intention of the lawmakers is to be found in section 82 of the code. Section 82 and section 83 are to be read in harmony. Thus, except in cases covered by the proviso to section 82(1) the attachment order has to maintain a distance of not less than thirty days from the date of the publication under section 82. The word at any time in section 83(1) only mean that if after the issue of proclamation, either of the two conditions mentioned in Clauses (a) and (b) of the provision to section 83(1) comes into existence, an order of attachment may be made without waiting for thirty days to expire. Even is such a case the Magistrate has to record his reasons for arriving at the judicial satisfaction that such conditions as mentioned in the proviso to have come into existence as held in Devendra Singh v State of U.P., 1994 CrLJ 1783 (1788).<br>9.7. It is seen that in many cases, the accused though served, remains absent, does not participate in the proceedings and/or conceals himself in such a manner as to avoid service, thereby resulting in a delay in the criminal proceedings, many times resulting in splitting up of the case and the proceedings against the accused who is available. In some cases, the accused who is available would be in custody and on account of the delay caused due to non-availability or on account of one of the accused absconding, entire proceedings get delayed, and the accused available continues to be in custody, essentially the right to speedy trial of such accused in custody is infringed by the accused absconding.<br>9.8. It is in order to secure the presence of the accused that various modes of service have been made available to a criminal Court.<br>9.9. Firstly summons or warrant is issued, if the accused were not to appear, a Non-Bailable Warrant is issued, which if not capable of being served, proclamation could be issued in terms of Section 82 of Cr.P.C. despite which if the accused were not to appear the accused could be declared absconding and thereafter the property of the accused can be attached and bought to sale, so that under the fear of losing the property, the accused may appear before the Court.<br>9.10.<span style=\"white-space:pre\">	</span>Thus the property of an accused can be attached under Section 83 of Cr.P.C. post the proclamation and declaration that an accused is absconding by following the procedure under Section 82(2) and 82(3) of the Cr.P.C. whenever the Court comes to a conclusion that the accused is evading or avoiding service of summons, warrant or NBW and this power to be exercised so as to secure the presence of the accused before the Court at the&nbsp; earliest.<br>9.11.<span style=\"white-space:pre\">	</span>In criminal trials it is but required for the Court to exercise these powers as early as possible, it is for the Public Prosecutor to file necessary applications under Section 82, as also under Section 83 of the Cr.P.C., as soon as the reasons and or the conditions of Section 82 and/ or Section 83 as the case may be are satisfied. There is a bounden duty on the part of the Public Prosecutor to immediately file a necessary application under Section 82 of the Cr.P.C. for proclamation when the service of the warrant and/or NBW is not being affected and/or the accused concealing himself.<br><b style=\"background-color: rgb(255, 255, 0);\">9.12. Even if the prosecutor were not to file such application/s, Section 82 does not require an application to be made by the Public Prosecutor since it reads ‘if any court has reason to believe…’, therefore the Court on its own or suo motu could take up the proceedings under Section 82 issue a proclamation, direct its publication and record the due publication of the proclamation. If the accused were not to appear, the Court could also go ahead with attaching the property of the accused and bringing the same for sale. The Court is also duty-bound to exercise power under Section 82 and 83 at the earliest point on time so as not to delay the criminal trial only for the reason that the presence of the accused could not be secured.</b><br>9.13. I answer point No.3 by holding that a property of the absconder can be attached anytime after the non- appearance of the accused in pursuance of a proclamation, it may, however, be advisable to wait for a period of 30 days from the date on which the accused was required to appear.<br>10. Answer to point No.4: Whether while exercising powers under Section 83 of Cr.P.C, the property which would be attached is required to belong to the accused/absconder?<br>And<br>Answer to point No.5: Would the word ‘belong’ used in Section 83&nbsp; of Cr.P.C&nbsp; mean merely that the property stands in the name of the said accused/absconder or would the interest of any third party in the said property require to be considered?<br>10.1.<span style=\"white-space:pre\">	</span>A reading of Section 83 of Cr.P.C. would indicate<span style=\"white-space:pre\">	</span>that<span style=\"white-space:pre\">	</span>the<span style=\"white-space:pre\">	</span>Court could order the attachment of property, movable and immovable or both belonging to a proclaimed person and therefore, it is required that the property to be attached belongs to the accused who is absconding. This being so, for the reason that it is only in such cases where such property is attached could there be pressure on the accused to appear before the Court so as to get the orders of attachment lifted on his appearance. Failure thereto would result in attachment of properties being sold and the proceedings thereof being forfeited to the State. This being a powerful weapen in the armoury of the Court to secure the presence of the accused before it.<br>10.2.<span style=\"white-space:pre\">	</span>Thus unless the property belongs to the accused and/or unless the accused would be adversely affected by the attachment order and or subsequent sale, there would be no purpose served in attaching the property. Thus if a third party were to have any interest in the said property and/or accused has lost interest in the property, in such circumstances, there would be no purpose served by attaching the property over which accused has no interest and/or that the accused will not get adversely affected by the attachment and/or sale of the said property, so as to secure his/her presence. The Court also needs to be conscious of the fact that the order of attachment should be such that it secures the presence of the accused, towards this end, multiple properties of the accused could also be attached.<br>10.3.<span style=\"white-space:pre\">	</span>In the above background, it would be but required for the Court to not only ascertain that the property belongs to the accused and/or owned by the accused, but also to ascertain whether the interest of the accused in the property continues to be subsisting as on the date of attachment or if the said interest has been transferred to any third party, which would come in the way of achieving the purpose of securing the presence of a person absconding.<br>10.4.<span style=\"white-space:pre\">	</span>Thus, the interest of any third party would also have to be considered if such interest is such that the accused, despite the attachment order, would not appear before the Court since neither the attachment nor subsequent sale by the Court would have any adverse impact on the said accused.<br>10.5. I answer point Nos.4 and 5 by holding that it is only the property that belongs to or over which the accused has an interest that the property could be attached. The Court could attach multiple properties belonging to the accused so as to secure the presence of the Accused.<br>11. Answer to point No.6: What is the mode and methodology of attaching the property, is the order of attachment of the property be passed by the concerned Court or can it be delegated to the jurisdictional Deputy Commissioner to attach the property?<br>11.1.<span style=\"white-space:pre\">	</span>In terms of Section 83(1) of the Cr.P.C the Court issuing a proclamation under section<br>82 may, for reasons to be recorded in writing, at any time after the issuance of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person. Thus it is clear that the order of attachment has to be passed by the Court.<br>11.2.<span style=\"white-space:pre\">	</span>The mode and methodology of the attachment has been prescribed&nbsp; under Section 83(2) of the Cr.P.C. Post the attachment order passed by the Court in terms of Section 83(1), the Court could send the same to the District Magistrate within whose District the said property is situated for carrying out attachment.<br>11.3.<span style=\"white-space:pre\">	</span>That essentially would mean that the attachment order is required to be passed by the Court and the attachment order be sent to the District Magistrate for the purpose of execution of the attachment order.<br>11.4.<span style=\"white-space:pre\">	</span>The attachment could be made in case of movables by:<br>11.4.1. Seizure of the movable;<br>11.4.2. By appointment of the receiver;<br>11.4.3. by passing of garnishee order prohibiting delivery of any property of a proclaimed person to the proclaimed person or any one on behalf of the proclaimed person, etc.<br>11.5.<span style=\"white-space:pre\">	</span>If the property is immovable property, the same could be attached by :<br>11.5.1. taking possession;<br>11.5.2. by appointment of a receiver<br>11.5.3. by an order in writing prohibiting payment of rent to the proclaimed person or anyone on his behalf, etc.<br>11.6. I answer point No.6 by holding that the order of attachment is required to be passed by the concerned Court, and it cannot be delegated to the jurisdictional Deputy Commissioner or District Magistrate. The order of attachment passed by the Court is to be sent to the Deputy Commissioner or District Magistrate for the purpose of execution/implementation of the order of attachment.<br>12. Answer to point No.7: Can the agreement holder challenge the attachment on the ground that the agreement holder has an interest in the property, i.e. to say would the mere agreement to sell confer an interest on such a person to lodge a claim or objection to the attachment in terms of Section 84 of Cr.P.C.?<br>12.1.<span style=\"white-space:pre\">	</span>In terms of Section 54 of the Transfer of Property Act, mere agreement of sale would not convey any right, title or interest in favour of the purchaser. Thus, an&nbsp; agreement holder by himself cannot assert any right over the property. This being the general law, the applicability of Section 54 of the Transfer of Property Act in matters relating to Section 83 and 84 of Cr.P.C. would have to be considered in the context thereto. Since without such context, the meaning, purport and intent of&nbsp; the legislation would be lost. Therefore, there has to be a purposive interpretation given to the provisions, i.e. Section 83, 84 of the Cr.P.C. and Section 54 of the Transfer of Property Act.<br>12.2.<span style=\"white-space:pre\">	</span>Attachment of a property is required to be made so as to secure the presence of the absconding accused.<br>12.3.<span style=\"white-space:pre\">	</span>As aforestated and repeated, the purpose of proclaiming a person to be absconding and attaching the property of such proclaimed absconder is to secure his presence before the Court. For this purpose, what is to be seen is what is the interest of the proclaimed absconder in the property to be attached or already attached. The attachment of the property and possibility of the sale would in default of the said absconder appearing before the Court on a particular date and time fixed by the Court would have to be such that such sale should adversely impact the right and interest of the proclaimed absconder. There would be no purpose served by attaching the property, sale of which would have no impact on securing the presence of the proclaimed absconder.<br>12.4.<span style=\"white-space:pre\">	</span>Thus in the event of the proclaimed absconder having entered into an agreement of sale with a third party and having received substantial consideration therein, though mere agreement of sale would not convey any right, title and interest to such purchaser, the proclaimed absconder having received substantial consideration, the attachment of such property would also not secure the presence of such proclaimed absconder before the Court, hence rendering the entire process of attachment and sale thereto useless and the purport and ambit of Section 83 of Cr.PC not being achieved.<br>12.5.<span style=\"white-space:pre\">	</span>Section 84 provides for claims and objections being laid to such attachment. Section 84 is reproduced hereinabove for easy reference.<br>12.6.<span style=\"white-space:pre\">	</span>Section 84, as could be seen, provides for objections to be laid within six months from the date of attachment by any person other than a proclaimed person on the ground that the said person, i.e. the claimant or objector, has an interest in the property and such interest is not liable to be attached under Section 83 of Cr.P.C.<br>12.7.<span style=\"white-space:pre\">	</span>Thus insofar as the proceeding under Section<br>84 are concerned, I am of the considered opinion that a third party, a bonafide purchaser who has paid sufficient consideration under an agreement of sale, such agreement having been entered into prior to the proclamation could object to the attachment and seek for lifting thereof and the Court could set-aside the attachment in the event of the Court coming to a conclusion that the attachment of sale of the property would not secure the presence of the proclaimed offender but also cause loss to the genuine and bonafide purchaser of the property.<br>12.8.<span style=\"white-space:pre\">	</span>The attachment and sale of the property as regards which the proclaimed absconder has received substantial consideration would not in any manner secure the presence of such an accused. Hence, the entire process being resorted to by the Court would only be an empty formality and not serve any purpose.<br>12.9. Thus, I answer point No.7 by holding that an agreement holder can challenge the attachment on the ground that the agreement holder has an interest in the property, so long as the interest is substantial and has been acquired in a bonafide manner and in this regard such a person can lodge a claim or objection to the attachment in terms of Section 84 of Cr.P.C.<br>13. Answer to point No.8: Whether the court passing orders under Section 83 and 84 of Cr.P.C, as also this Court can look into the factum of fraudulent transfer while considering the application under Section 84 of Cr.P.C or a petition challenging the order passed under Section 84 of Cr.P.C.?<br>13.1.<span style=\"white-space:pre\">	</span>As already held in answer to Point No.6 above, the interest of purchaser of a property, bonafide, in good faith is required to be protected and such interest not to be harmed merely because the proclaimed absconder had an interest in the same and or that he sold the property to such bonafide purchaser.<br>13.2.<span style=\"white-space:pre\">	</span>The question then would be what is the status of a fraudulent transfer and/or status of the purchaser who has purchased the same knowing fully well that the property belongs to an accused who has absconded and or is likely to be declared as proclaimed absconder in the future and/or that the very purpose of the purchase of the property is only to safeguard the property from being attached and/or auctioned.<br>13.3.<span style=\"white-space:pre\">	</span>In the event of such a transfer is not bonafide, then there is no interest of such purchaser, which is required to be protected by a Court of law. The said purchaser is as guilty as the proclaimed absconder, and the sale of such property&nbsp; could have an impact in securing the presence of the proclaimed absconder.<br>13.4.<span style=\"white-space:pre\">	</span>Thus in my considered opinion, while deciding a matter under Section 84 of Cr.P.C, the Court should always keep in mind the factum of a fraudulent transfer while considering such an application, the burden of proof thereto being on the agreement holder or third party objector to prove that the transaction is genuine, bonafide and entered into in good faith. The examination of the Court in this regards is only a prima- facie examination and does not require a detailed enquiry.<br>13.5. I answer Point No.8, holding that the Court can look into the factum of fraudulent transfer while considering the application under Section 84 of Cr.P.C or a petition challenging the order passed under Section 84 of Cr.P.C. the examination of the Court under section 84 is nevertheless prima-facie and does not require a detailed enquiry.<br>14.Answer to point Nos.9 and 10: In the event of the dismissal of a claim or objection of such third party, would the third party be required to file a suit in terms of Section 84(4) of the Act or could such a person approach this Court by way of a Writ Petition, more so when there is no dispute as regards the agreement entered into by such third party raised by the owner of the property?<br>AND<br>Would ordinary alternative remedy under Section 84(4) be an embargo for such a person to approach this Court by way of a writ petition?<br>14.1.<span style=\"white-space:pre\">	</span>Section 84(4) of Cr.P.C. provide for a remedy to such third party claiming to be an objector in the event of his objections under Section 84(1) being disallowed or rejected viz., by filing a suit to establish his rights in respect of the property in dispute within a period of one year from the date of such dismissal of the petition.<br>14.2.<span style=\"white-space:pre\">	</span>Sri.C.V.Nagesh, learned Senior counsel has contended that filing of a suit would be necessitated only if a dispute as regards the right of the objector exists. He contends&nbsp; that when there is no dispute as regards the right of the objector, no suit is required to be filed, and such a person could approach this Court under Article 226 read with 227 of the Constitution challenging the dismissal of the claim filed under Section 84(1) of the Cr.P.C.<br>14.3. As answered in Point No. 6 and 7 above, it is only a genuine, bonafide purchaser of the property in good faith who could maintain a proceeding under Section 84(1).<br>14.4.<span style=\"white-space:pre\">	</span>If the purchase is malafide, dishonest or with an intention to remove the property from the scope of attachment, i.e. to say that the transaction is fraudulent or collusive, a claim or objection made could be rejected. However, the finding in a proceeding under Section 84(1) is only a prima facie finding. If a finding of a prima facie fraudulent transfer is issued on a claim under Section 84(1), then such a person would necessarily have to establish his genuineness and bonafides by instituting a suit under Section 84(4) of Cr.P.C.<br>14.5.<span style=\"white-space:pre\">	</span>Though the execution of the agreement of sale could not be in dispute, the object, reason and motive of such execution of an agreement of sale would be in question, which a competent court of law could only decide after trial by considering the evidence led by both the parties.<br>14.6.<span style=\"white-space:pre\">	</span>It is only if the right of the third party claimant or objector is not in dispute inasmuch as the Public Prosecutor and/or the State were not to dispute the right of the objector in respect of the property, despite which the claim petition came to be rejected, then in that event, such third party objector could approach this Court by way of writ petition.<br>14.7.<span style=\"white-space:pre\">	</span>As stated above, whenever there is any dispute as regards the rights or claims of the third party objector, the same would have to be decided in a properly instituted suit and not by way of a writ petition.<br>14.8. Therefore, I Answer Point Nos. 9 and 10 by holding that in the event of the dismissal of a claim or objection of such third party, the third party would be required to file a suit in terms of Section 84(4) of the Act.<br>14.9. It is only when there is no dispute as regards the rights and or claims of a third party that a writ petition can be filed and the alternative remedy under Section 84(4) would not be an embargo for such a person to approach this Court by way of a writ petition.<br>15.6.<span style=\"white-space:pre\">	</span>The said Gopal Sheelam Reddy has concealed himself so that warrant could not be executed against him. If at all the said Gopal Sheelam Reddy had been declared as an absconder, then the agreement of sale which was entered into between the absconder and petitioner cannot be said to have been bonafide but would have to be said to be malafide since there was no particular purpose for the petitioner to have purchased the property except to preserve the property and take it out the jurisdiction of Ramanagar since the said Gopal Sheelam Reddy @ Nityabhaktananda having travelled outside India which was only a matter of time before he would be a ‘proclaimed absconder, thereby bringing up the property for sale.<br>15.7.<span style=\"white-space:pre\">	</span>In my considered view the entire transaction being a fraudulent transaction and therefore, the property could have been attached or brought on sale if the procedure under Section 82 Cr.P.C. had been followed by the III Addl. Sessions Judge, Ramanagara before doing so.<br>15.8.<span style=\"white-space:pre\">	</span>In view thereof, I am of the considered opinion that the orders dated 5.06.2020 and dated 29.06.2020 are not sustainable and they are not in accordance in law and are therefore, required to be set-aside.<br>16.<span style=\"white-space:pre\">	</span>Answer to point No.12: What Order ?<br>16.1.<span style=\"white-space:pre\">	</span>In the result, the petition is allowed.<br>16.2.<span style=\"white-space:pre\">	</span>Writ of certiorari is issued setting aside the order dated 5.06.2020 and 29.06.2020 passed in S.C.No.86/2014 by the III Addl. Sessions Judge, Ramanagar, liberty is, however, reserved for the Court to proclaim the petitioner as absconding and proceed therefrom.<br>Sd/- JUDGE<br>ln</h4>', '5e193f1f1e06c3148de441f223e6b9f0.jpg', '539fdb3dd3571d8fac077af8f052d2f4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-09', 1, '', '', '2021-05-14 04:01:57', '2021-05-14 04:01:57');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(758, 'uKMgRHTOMgIefXUPaN3VZU9QE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land acquisition. Consideration of delay and laches in the light of fraud. Karnataka High Court nullifies 34 years old acquisition proceedings on the ground of fraud. Orders restoration of land to original owner. 22 April 2021 ', '<h4>Umashankar and others vs The Commissioner, Bangalore Development Authority and others. </h4><h4>Writ Petition 11021 of 2011 decided on 22 April 2021. </h4><h4>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380981/1/WP11021-11-22-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380981/1/WP11021-11-22-04-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:&nbsp;In the instant petition, legal heirs of B.Doddamarappa have prayed for the following relief:-&nbsp;to set aside the award produced at Annexure-N along with preliminary notification bearing No.BDA/SALAO/C3.PR.301/77-78 dated 3rd November 1977 and final Notification bearing No.HUD 35 MNJ 78 dated 13 November 1980 and consequently sale deed produced at Annexure-R and S by issuing writ of mandamus.</h4><h4>27.&nbsp;<span style=\"font-size: 1.3125rem;\">The core issues involved in the present petition are:</span></h4><h4>(ii) Whether delay and laches would be a hurdle in questioning the acquisition proceedings where fraud is involved or not?<br>32. Pursuant to the final notification dated 13.11.1980, BDA is stated to have taken possession of the subject land on 03.10.1985 after drawing a mahazar. Perusal of mahazar it is evident that it is not a manuscript whereas it is a typed copy and not supported by addresses of the witnesses and owners/occupants of the adjacent land. Prima facie, there is non-compliance to Section 17(5) of BDA Act. Further, no material has been furnished by the BDA or the Society that subject land was handed over to the Society after bulk allotment read with the sale proceedings in favour of the Society. Infact, date of sale deed between BDA and Society is 20.04.1989 whereas alleged possession of the subject land handed-over to the Society is on 07.02.1989 which is contrary to the provisions of the BDA Act. Further, Society sold the subject land in favour of respondents 4 to 10 on 07.07.1997 and there is no material information relating to taking over possession of the subject land from the legal heirs of B Doddamarappa. In this background, suits filed by both legal heirs of B.Doddamarappa and respondents 4 to 10 are pending.<br>34. The Regional Commissioner\'s report read with the documents, it is crystal clear that subject land did not stand in the name of Sri A Suklal, s/o Ambaram as on the date of acquisition of subject land by the BDA. <b style=\"background-color: rgb(255, 255, 0);\">Therefore, one has to draw inference that someone has played fraud which is impracticable to detect for the reasons that Revenue/Urban Development Department and BDA do not possess a piece of record prior to issuance of preliminary notification.</b> Further, even though final notification was issued on 13.11.1980, none of the interested parties have taken physical possession of the subject land from the legal heirs of B.Doddamarappa and issue relating to taking over possession of the land is still hanging on the respective parties read with the pending suit proceedings.<br>35. In view of the aforesaid dates and events, it is evident that there is no delay on the part of the legal heirs of B.Doddamarappa in presenting this petition. Assuming that there is delay, one has to draw inference that legal heirs of B.Doddamarappa did not have the knowledge of acquisition proceedings that took place in the years 1977 to 1980, thereafter subject land was allotted to Society and Society sold the property in favour of respondents 4 to 10 on 07.07.1997. Mahazar drawn by the BDA on 03.10.1985 is in violation of Section 17(5) of the BDA Act. Prima facie, mahazar must have been prepared in the office of the BDA since it is not a manuscript and it is a typed mahazar and addresses of the witnesses are not revealed. That apart, spot mahazar drawn do not reveal the names of adjacent owners/occupants and their attestations as witness/s. Therefore, delay would not be a hurdle in deciding the matter on merit.<br>46. As regards issue No.2 whether delay would be a hurdle in respect of fraud in an acquisition proceedings, the following citations are relevant:</h4><h4>SEETHARAM AND OTHERS VS THE STATE OF KARNATAKA, REP. BY ITS SECRETARY TO THE GOVERNMENT REVENUE DEPARTMENT AND OTHERS reported in ILR 2017 KAR 2063: (2017) 4 KANT L.J 195, wherein i<b style=\"background-color: rgb(255, 255, 0);\">t is held that delay and laches has no consequences as acquisition found to be vitiated, fraud vitiates the whole acquisition proceedings.&nbsp;</b></h4><h4>SRI SRIKANTA REDDY K VS THE STATE OF KARNATAKA IN WP.NOS. 38545/17 &amp; 39924/17, DISPOSED OF ON 19/09/2018 wherein Court held that fraud vitiate a solemn act<br>REGI SURESH NAIR VS SURESH PUTHARAKKAL NAIR, reported in (2012) 3 Mah L.J 783 wherein Bombay High Court condoned the delay<br>JAGIR SINGH &amp; OTHERS VS STATE OF PUNJAB &amp; OTHERS reported in 2014 SCC OnLine P &amp; H 25050, wherein Court held that fraud and collusion vitiates even the most solemn proceedings in any civilised system of jurisprudence.</h4><h4>KASANI GNANESHWAR VS THE JOINT COLLECTOR, MEDCHAL-MALKAIGIRI DISTRAICT &amp; OTHERS reported in (2018) 3 ALD 441 (DB), consequences of playing fraud is vitiate proceedings.&nbsp;</h4><h4>FRAUD:<br>50. In STATE OF PUNJAB vs GURDIAL SINGH\'s case supra malafides in the jurisprudence of power and fraud has been discussed.<br>The aforesaid decision has relevancy to the case on hand for the reasons that what is malafide in the jurisprudence of power has been discussed. In the present case, fraud is to the extent of not examining the original revenue records and some interested persons proceeded to manipulate revenue records in the name of Sri A Suklal. On the other hand, original revenue records stand in the name of Sri B Dodamarappa.<br>51. In STATE OF A.P. AND ANOTHER vs T SURYACHANDRA RAO supra it is held the word \'fraud\' has been discussed elaborately.</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">52. .....In the present case, BDA officials in connivance with Sri A Suklal and others played fraud in respect of acquisition proceedings and claiming compensation.&nbsp;</b>&nbsp;</h4><h4>65. In view of these facts and circumstances, petitioners have made out prima facie case so as to interfere with the impugned acquisition proceedings. In the result, the following order is passed:</h4><h4>ORDER</h4><h4>(i) The award passed by the Special Additional Land Acquisition Officer, Bengaluru Development Authority, Bengaluru on 03.11.1977 bearing No.BDA/SALAO/C3.PR.301/77-78 vide Annexure - N and sale deeds produced vide Annexures R and S dated 20.04.1989 and 07.07.1997 respectively executed by the 1st respondent in favour of the 2nd respondent and 2nd respondent in favour of respondents 3 to 9 stands quashed.</h4><h4>(ii) The subject land at Sy.No.78 measuring 1 acre 12 guntas situated at Binnamangala Village, Kasaba Hobli, Bengaluru North Taluk stands restored in the name of deceased B Doddamarappa.</h4><h4>(iii) The official respondents BDA, Revenue and Urban Development Departments are hereby directed to rectify all the respective records and restore the land in favour of deceased Sri B Doddamarappa in accordance with law. Such exercise shall be completed within a period of 4 months from the date of receipt of this order.</h4><h4>(iv) It is a case warranted for imposition of cost on the respondent - Bengaluru Development Authority in not maintaining records of acquisition of subject land so also correspondences with the Revenue and Urban Development Department before issuing preliminary notification.</h4><h4>Accordingly, Writ Petition is allowed with costs of Rs.1,00,000/- to be remitted by the Bengaluru Development Authority - respondent No.1 before the Karnataka State Legal Services Authority, Bengaluru within a period of four months from the date of receipt of this order.</h4><h4><br></h4><h4><br></h4><div><br></div>', '2337b2ecd846745c79dcb6d15c982d0a.jpg', '3f24cbe857709606f00cf9f7c0ff4c8a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-22', 1, '', '', '2021-05-16 02:29:27', '2021-05-15 16:50:22'),
(759, 'F97SFW9HjRbqehaGoTYoZfsck', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 205. Permanent exemption can NOT be granted when the court has already issued non bailable warrant. Application for permanent exemption is NOT maintainable without appearance and recall of NBW. Karnataka High Court. 6 April 2021', '<h4>Shashikala vs Deepa. </h4><h4>Criminal Petition 7182 of 2018 decided on 6 April 2021. </h4><h4>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/381103/1/CRLP7182-18-06-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/381103/1/CRLP7182-18-06-04-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: “Whether the order of the Trial Court granting permanent exemption&nbsp; to&nbsp; the&nbsp; respondent&nbsp; from appearance before the Court in C.C.No.19587/2016 amounts to abuse of the process of the Court?” is the question involved in this case.<br>2. On the basis of the complaint filed by the petitioner under Section 200 of Cr.P.C. to prosecute the respondent for the offences punishable under Sections 419, 420 and 426 of IPC, the Trial Court took cognizance and registered the case in C.C.No.19587/2016.<br>5. The Trial Court could not secure the respondent on summons, therefore issued non-bailable warrant against her. On 31.03.2018, an advocate filed memorandum of appearance before the Trial Court for respondent along with the application under Section 205 of Cr.P.C., seeking permanent exemption from appearance in the case on&nbsp; the&nbsp; ground that she is employed in USA and traveling from USA to Bengaluru causes problems to her financially and employment wise.<br>6. The petitioner filed statement of objections and opposed the said application. The Trial Court, by the impugned order dated 19.07.2018 allowed&nbsp; the said application relying on the judgment of the Hon’ble Supreme Court in Usha. K. Pillai vs. V.S.Raji.K. [AIR 1993 SC 2090] and accepting the grounds stated by the respondents.<br></h4><h4>10. Out of the offences alleged against the petitioner, the offence under Section 420 IPC was the major offence which carries imprisonment upto seven years and fine. Therefore, the case was&nbsp; a&nbsp; warrant case involving a cognizable offence.<br>11. The summons in the case could not be served and indisputably non-bailable warrant was issued against the petitioner. Not even vakalat was filed on behalf of the respondent. She neither filed any application to recall the non-bailable warrant nor for grant of bail though non-bailable warrant was issued against her. She directly sought exemption under Section 205 of Cr.P.C.<br><b style=\"background-color: rgb(255, 255, 0);\">12. ....the power under Section 205&nbsp; of&nbsp; Cr.P.C., can be exercised when the Magistrate has issued summons and not a non-bailable warrant. Once the non-bailable warrant was&nbsp; issued,&nbsp; the&nbsp; proper procedure was to appear before the Court, seek recalling of that warrant and bail in the matter. Without doing that, permanent exemption was sought.</b><br>13. The perusal of all the three judgments of the Hon’ble Supreme Court relied upon by the&nbsp; learned counsel for the respondent shows that in those cases, the accused had taken bail/anticipatory bail and thereafter, filed the applications for permanent exemption. Therefore, the said judgments are not applicable.<br>14. It is to be noted that the proceedings before the Trial Court commenced in the year 2016. The respondent filed the application in the year 2018. Even thereafter for all these years she has not appeared before the Court. The petitioner was not even able to reach the trial in the case. Therefore, it can be said that filing of the application&nbsp; under&nbsp; Section 205 of Cr.P.C. and granting of exemption&nbsp; were totally abuse of the process of the Court. Therefore, the petition is allowed.<br>The impugned order granting permanent exemption to respondent is hereby quashed.<br>The application of the respondent under Section 205 of Cr.P.C. is hereby rejected. The Trial Court is here by directed to secure the accused and conclude the Trial within six months from the date of the receipt of copy of this order.<br><br><br></h4><div><br></div>', 'ef50b1a2a02a0d15cd381cbb50b6e967.jpg', '601a3c2903831873b5a3512099b273ce.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-06', 1, '', '', '2021-05-16 04:03:07', '2021-05-16 04:03:07'),
(760, 'CjB8GNQtWyVXaAc4TdE7YUA7j', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Default bail. Apart from Police and Judicial custody, period spent during house arrest legally passed under Section 167 can be taken into consideration for the purpose of default bail.  Supreme Court. 12 May 2021', '<h4>Goutam Navlakha vs National Investigating Agency. </h4><h4>Criminal Appeal 510 of 2021 decided on 12 May 2021. </h4><h4>Justice Uday Umesh Lalit and Justice K.M. Joseph </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/4836/4836_2021_33_1502_28011_Judgement_12-May-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/4836/4836_2021_33_1502_28011_Judgement_12-May-2021.pdf</a><br></h4><h4>16. Though the final question to be answered is\r\nwhether the period of 34 days spent in house\r\narrest by the appellant is to be counted\r\ntowards the period of 90 days under Section 167\r\n30\r\nCr.P.C., several issues arise which we\r\narticulate as follows:\r\n</h4><h4>1) What is the nature of an order of\r\ntransit remand? Is it an order passed under\r\nSection 167 of the Cr.PC.?\r\n</h4><h4>2) What is the nature of the interim order\r\ndated 28.08.2018 passed in the writ petition\r\nby the appellant in the High Court of Delhi\r\nas extended? Are these orders passed under\r\nSection 167 of the Cr.P.C.?\r\n</h4><h4>3) What is the effect of the judgment of\r\nthe High Court of Delhi dated 1.10.2018\r\nwherein the arrest of the appellant and the\r\ntransit remand are found illegal?\r\n</h4><h4>4) Does the House arrest of the appellant\r\namount to police custody or judicial\r\ncustody? Can there be an order for custody\r\nother than police custody and judicial\r\ncustody under Section 167 Cr.P.C.? Is House\r\n31\r\narrest custody within the embrace of Section\r\n167 of Cr.P.C.?\r\n</h4><h4>5) Is the House arrest of the appellant\r\nnot custody under Section 167 of the Cr.P.C.\r\non the score that the appellant could not be\r\ninterrogated by the competent investigating\r\nofficer?\r\n</h4><h4>6) What is the effect of the appellant\r\nbeing in police custody from 15.4.2020 till\r\n25.4.2020 and the alleged acquiescence of\r\nthe appellant in the order and the custody\r\nundergone by the appellant?\r\n</h4><h4>7) Whether broken periods of custody\r\notherwise traceable to Section 167 Cr.P.C.\r\nsuffice to piece together the total maximum\r\nperiod of custody permitted beyond which the\r\nright to default bail arises or whether the\r\nlaw giver has envisaged only custody which\r\nis continuous?\r\n32\r\n</h4><h4>8) What is the impact of mandate of\r\nArticle 21 and Article 22 of the\r\nConstitution?</h4><h4>18. Article 21 of the Constitution incorporates\r\ninvaluable fundamental rights insofar as it\r\ndeclares that no person shall be deprived of\r\nhis life or personal liberty except according\r\nto procedure established by law. <br>35. The High Court in the impugned order has\r\nitself found that the period of 34 days spent\r\nin house arrest by the appellant amounted to\r\ncustody. We, however, consider it necessary to\r\narticulate our views regarding the nature of\r\nhouse arrest. <br>43. In India, the concept of house arrest has\r\nits roots in laws providing for preventive\r\ndetention. Section 5 of the National Security\r\nAct, 1980, is a law providing for preventive\r\ndetention.<br>50. There is a tremendous amount of\r\novercrowding in jails in India. Secondly, a\r\nvery large sum (Rs. 6818.1 crore) was the\r\nbudget on prisons. Both aspects are relevant\r\nin the context of the possibilities that house\r\narrest offer.<br>90. Now, it is necessary to make one aspect\r\nclear. An order purports to remand a person\r\nunder Section 167. It is made without complying\r\nwith mandatory requirements thereunder. It\r\nresults in actual custody. The period of\r\ncustody will count towards default bail.<br>94. Now, we must squarely deal with the\r\nquestion as to whether house arrest as ordered\r\nby the High Court amounts to custody within the meaning of Section 167 of the Cr.P.C.\r\nUndoubtedly custody in the said provision is\r\nunderstood as ordinarily meaning police custody\r\nand judicial custody. The period of custody\r\nbegins not from the time of arrest but from\r\ntime the accused is first remanded (1986 (3)\r\nSCC 141).<br> 95. What is the distinction between police\r\ncustody and judicial custody? When a person is\r\nremanded to police custody, he passes into the exclusive custody of the police officers.\r\n‘Custodial Interrogation’ as is indispensable\r\nto unearth the truth in a given case is the\r\nsubstantial premise for such custody. The\r\nMagistrate must undoubtedly be convinced about\r\nthe need for remand to such custody. Reasons\r\nmust be recorded. Judicial custody is\r\nordinarily custody in a jail. It is referred to\r\nalso as jail custody. Thus, jail custody and\r\njudicial custody are the same. The jails come\r\nunder the Department of Jails and staffed by\r\nthe employees of the said department. The\r\nperson in jail custody is therefore indirectly,\r\nthrough the jail authorities, under the custody\r\nof the Court. The police officer does not have\r\naccess to a person in judicial custody as he\r\nwould have in the case of a person in police\r\ncustody. Unless permission is sought and\r\nobtained which would apparently be subject to such conditions as a court places the person in\r\njudicial custody cannot be questioned by the\r\npolice officers.<br><b style=\"background-color: rgb(255, 255, 0);\">135....While, the Right to Default Bail is a\r\nFundamental Right, it is subject to the\r\nconditions, obtaining in Section 167 of the\r\nCrPC, being satisfied. It must be purported to\r\nbe passed under Section 167 CrPC. The right to\r\nstatutory bail arises dehors the merits of the\r\ncase. The fundamental right arises when the\r\nconditions are fulfilled. The nature of\r\ndetention, being one under Section 167 is\r\nindispensable to count the period.</b><br><b style=\"background-color: rgb(255, 255, 0);\">137. There is one aspect which stands out.\r\nCustody under Section 167 has been understood\r\nhitherto as police custody and judicial custody, with judicial custody being conflated\r\nto jail custody ordinarily.  <br>138. The concept of house arrest as part of\r\ncustody under Section 167 has not engaged the\r\ncourts including this Court. However, when the\r\nissue has come into focus, and noticing its\r\ningredients we have formed the view that it\r\ninvolves custody which falls under Section 167.</b><br>139. We observe that under Section 167 in\r\nappropriate cases it will be open to courts to\r\norder house arrest. As to its employment,\r\nwithout being exhaustive, we may indicate\r\ncriteria like age, health condition and the\r\nantecedents of the accused, the nature of the\r\ncrime, the need for other forms of custody and\r\nthe ability to enforce the terms of the house\r\narrest. We would also indicate under Section\r\n309 also that judicial custody being custody\r\nordered, subject to following the criteria, the courts will be free to employ it in deserving\r\nand suitable cases. <br><br><br> </h4>', 'bfc235993e1093a0ed5e52b4782f855c.PNG', 'e95fd045017ef0228ada2016539145da.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-12', 1, '', '', '2021-05-17 03:20:18', '2021-05-17 03:51:47'),
(761, 'y9D1XK7SGyn5m12lffLMrJ7jg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Local bodies. Consequences of conversion of Town Municipal Area into a City Municipal Area and absorbion of Panchayat into newly constituted City Municipal Council explained. Karnataka High Court. 21 April 2021', '<h4>Anjana Murthy and others vs Kalpana Manjunatha and others. </h4><h4>Writ Appeal 46 of 2021 connected with Writ Appeal 227 of 2021 decided on 21 April 2021.&nbsp;</h4><h4>Justice Satish Chandra Sharma and Justice Suraj Govindaraj. </h4><h4>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380721/1/WA46-21-21-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380721/1/WA46-21-21-04-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>:&nbsp;1. The appellants are before this Court seeking for setting aside the Order dated 05.01.2021 passed by the learned Single Judge of this Court in W.P.No.11725/2020 c/w W.P.No.6398/2020. By way of the said Order, the learned Single Judge was pleased to allow the aforesaid writ petitions and direct the State Government to hold elections to the Nelamangala City Municipal Council within an outer limit of two months from the date of receipt of a certified copy of that Order.<br>12. On the basis of the submissions made, pleadings filed, the documents on record, the points that would arise for our consideration are:</h4><h4 style=\"margin-left: 25px;\"><b>1. Whether while conversion of Town Municipal area into a City Municipal area, Panchayat could be added to the said City Municipal Council?<br>2. What would be the status of the elected representatives of the Town Municipal Corporation when the same is converted into a City Municipal Council?<br>3. What would be the status of the elected representatives of the Panchayat when the Panchayat is merged with the newly formed City Municipal Council?<br>4. Is a tenure of five years sacrosanct, or could it be varied on account of the merger and/or conversion into a City Municipal Council?<br>5. Whether nomination as contained under Section 359(1) (j) and 360(d) of the Municipalities Act would be sufficient to hold that there is an appropriate representation of the merged Panchayat into a City Municipal Council?<br>6. What is the effect of delimitation and reservation on such merger and formation of City Municipal Council?<br>7. Whether the provisions of Section 358 could apply to a newly formed City Municipal Council by conversion of Town Municipal Council and merger of panchayats is carried out?<br>8. Does the judgment of the learned Single Judge suffer from legal infirmity requiring interference?<br>9. What Order?</b></h4><h4>14.4.<span style=\"white-space:pre\">	</span>The peculiar question that arises in the present facts is as to what would happen when a TMC has been upgraded and converted to a CMC and simultaneously two entire panchayats and portions of two pnachayats have also got absorbed into the CMC.<br>14.5.<span style=\"white-space:pre\">	</span>There is no single provision in the Act which refers to such a situation. The Act only refers to each situation in particular and/or isolation and not in combination. That would not mean that such conversion and absorption cannot happen simultaneously.<br>14.6.<span style=\"white-space:pre\">	</span>A new CMC being constituted, it would be in the interest of everyone that the same is done at one go rather than multiple stages. <b style=\"background-color: rgb(255, 255, 0);\">Thus, we are of the considered opinion that there is no particular embargo for the conversion of town municipal area (TMC) into a city municipal area (CMC) simultaneously the entire Panchayat or a portion of Panchayat or both could be absorbed into the CMC.</b><br>15. Answer to Point No.2: What would be the status of the elected representatives of the Town Municipal Corporation when the same is converted into a City Municipal Council?<br>15.1.<span style=\"white-space:pre\">	</span>The status of TMC being converted into a CMC is dealt with by Section 361 of the Act, which CMC shall be constituted in terms of Section 11 of the Act. Section 11 deals with the number of councillors, number of wards, reservation for SC/ST, reservation for backward classes, reservation for women etc.<br>15.2.<span style=\"white-space:pre\">	</span>In Thyagarajan vs. State of Karnataka [1986 SCC Online KAR 131], this Court has held that when an election to a TMC is held and the results are declared, Clause 3 of Section 361 of the Act would save the notification of the election and the elected representatives of the erstwhile TMC would hold the same position under the new CMC. <b style=\"background-color: rgb(255, 255, 0);\">Considering the above, we are of the considered opinion that the elected representatives of the TMC would continue as members of the CMC so long as there is no other addition made to the CMC apart from TMC and it remains strictly a conversion or upgradation of a TMC into a CMC.</b><br>16. Answer to Point No.3: What would be the status of the elected representatives of the Panchayat when the Panchayat is merged with the newly formed City Municipal Council?<br>16.1.<span style=\"white-space:pre\">	</span>A reading of Section 359 of the Act, which deals with absorption of the Panchayat area into a smaller urban area, would indicate as if that though all other aspects, decisions, notifications are saved, there is no such saving of the elections of the Panchayat members since Section 359 (1) (j) of the Act which begins with a non-abstante clause provides that notwithstanding anything to the contrary contained in the Act, one person ordinarily resident in the local area absorbed in the smaller urban area, can be nominated by the Government shall be an additional councillor of the municipal Council.<br><b style=\"background-color: rgb(255, 255, 0);\">16.2. This would indicate that any and all elected members of the Panchayat would have demitted their office and/or the Panchayat would be deemed to have been dissolved on its absorption in a smaller urban area like CMC. In such a situation, irrespective of size of the Panchayat, population of the Panchayat and/or number of elected panchayat members, the State Government could nominate one local resident as an additional Councillor.</b><br>16.3.<span style=\"white-space:pre\">	</span>Suffice to say that on such absorption of an entire Panchayat with a TMC or CMC, one person could be nominated as an additional Councillor. <b style=\"background-color: rgb(255, 255, 0);\">Thus, all the elected representatives of the Panchayat would cease to function and/or hold office.</b><br>16.4.<span style=\"white-space:pre\">	</span>Similar would be the situation in respect of a part of the Panchayat area being absorbed in a smaller urban area. There could be only one nomination in terms of Section 360 (d) of the Act.<br>17. Answer to Point No.4: Is the tenure of five years sacrosanct, or could it be varied on account of the merger and/or conversion into a City Municipal Council?<br>17.1.<span style=\"white-space:pre\">	</span>It is not in all cases that elected representatives can serve for five years. Such a person could either be disqualified prior to the expiry of five years or even the Council could be dissolved before the expiry of five years.<br>17.2.<span style=\"white-space:pre\">	</span>The Hon’ble Apex Court in the case of State of Maharashtra vs. Deep Narayan Chavan [(2002) 10 SCC 565] has held that the dissolution of a council or a legislature is permissible in accordance with the Act. The Apex Court once again in State of Maharashtra vs. Jalgaon Municipal Council [(2003) 9 SCC 731] has held that Article 243-U of the Constitution would apply only if the same type of Municipality is taking over the previous Municipality whose term has expired and it would not apply when the area of one description is being converted to an area of another description. Reference is to be made to Paras 21 and 22 thereof, which are hereunder reproduced for easy reference.<br>21. Having heard the learned counsel for the parties at length on this aspect, we are of the opinion that the <b style=\"background-color: rgb(255, 255, 0);\">said hiatus is an unavoidable event which must take place in the process of conversion of a Municipal Council into a Municipal Corporation.</b> Reliance on Article 243-U by the learned counsel for the respondents in this context is misconceived. The use of the expression “a Municipality” in sub-article (3) of Article 243- U in the context and in the setting in which it is employed suggests and means the duration of the same type of Municipality coming to an end and the same type of successor Municipality taking over as a consequence of the term of the previous Municipality coming to an end. Article 243-U cannot be applied to a case where the area of one description is converted into an area of another description and one description of Municipality is ceased by constituting another Municipality of a better description. Article 243-U(3) cannot be pressed into service to base a submission on that an election to constitute a Municipal Corporation is required to be completed before the expiry of duration of a Municipal Council.<br>22. The Constitution of a Municipal Corporation would require notification of larger urban area and a Municipal Corporation to govern it. The area shall have to be divided into wards with the number of corporators specified and reservations made. The Corporation would need to nominate Councillors. The territorial limits may need to be altered. The State Election Commission cannot conduct election without specifying numbers and boundaries of wards. New rules, bye-laws etc. shall need to be framed and municipal tax structure may need to be recast. The statutory provisions do not contemplate a situation where the same area may be called a smaller and larger area simultaneously and process of Constitution of a Municipal Corporation being commenced and completed though the Municipal Council continues to exist. Such an action would result in anomaly and confusion if not chaos.&nbsp;<br>15. In and by the upgradation, the old body coming to an end and same type of successor municipality takes over. <b style=\"background-color: rgb(255, 255, 0);\">Article 243 E cannot be applied to a case where an area of one description is converted into another description</b>. Section 3 (CC)(1) of the Act contemplates that notwithstanding anything contained in this Act, the President and Members of the Village Panchayat, who are elected or deemed to have been elected and holding office as such immediately before the date of Constitution of such village panchayat as town panchayat under this Act, shall be deemed to be the Chairman and Members of the Town Panchayat elected under this Act and such Chairman and Members shall continue to hold the office upto such date as the Government may by notification fix in this behalf or if no such date is fixed upto the date on which their term of office would expire under the Tamil Nadu Panchayat Act, 1994 and such Chairman and Members shall exercise all powers and perform all duties conferred on the Chairman and Members by or under this Act. Thus, the person like the Petitioner, holding the office immediately before the date of Constitution of such village panchayat as town panchayat under this Act deemed to exercise all power and performed all duties until by notification the State Government fixed the tenure. In this case, the State Government of the view that instead of appointing Government officers or Administrator deemed it fit that the elected representative of the Panchayat can continue till the new body is constituted. The State Government in exercise of power under Section 3 CC (1) (a) of the Act issued G.O. Ms. No. 91 dated 11.09.2006 thereby fixed the tenure of the Chairman and Members of the Special Village Panchayat upto 24.10.2006 and permitted them to hold the office till that period, hence, this Court is of the view that the said decision is perfectly valid.<br>16. The reason for fixing the date of tenure of the office of the elected representatives like the petitioner is the Government have decided to hold election by issuing G.O. Ms. No. 55 dated 14.07.2006 to re-constitute 561 Special Village Panchayat as Town Panchayat and hold election to all the Town Panchayats, including the Courtlam Town Panchayat in one main stream. Thus, the reasons for fixing the said date is also validly explained.<br>17.5.<span style=\"white-space:pre\">	</span>In view thereof, we are of the considered opinion that the <b style=\"background-color: rgb(255, 255, 0);\">tenure of five years is not sacrosanct as sought to be contended by the appellants herein. Depending on the facts and circumstances like dissolution, merger, upgradation, conversion, etc., the said five years period would be reduced.</b> We are, however, of the opinion that where there is no such conversion, absorption or dissolution, the term/period of the councillors would continue to be protected.<br>18. Answer to Point No.5: Whether nomination as contained under Section 359(1) (j) and 360(d) of the Municipalities Act would be sufficient to hold that there is an appropriate representation of the merged Panchayat into a City Municipal Council?<br>18.1.<span style=\"white-space:pre\">	</span>As could be seen in terms of Section 359<br>(1) (j) and Section 360 (d) of the Act, a person normally resident within the Panchayat could be nominated as an additional Councillor to the smaller urban area in which the said Panchayat is absorbed. As held by the learned Single Judge, the nomination of a single person as additional Councillor, on such absorption, to be violative of Article 243-R of the Constitution, since the said seat is not filled by direct election but by way of nomination there being no particular rules regarding such nomination.<br>18.2.<span style=\"white-space:pre\">	</span>The learned Single Judge, the same would also contravene Article 243-T of the Constitution since such nomination could be done without regard to the reservation mandated under the Constitution. <b style=\"background-color: rgb(255, 255, 0);\">W</b><b style=\"background-color: rgb(255, 255, 0);\">e are also in agreement with the judgment of the learned Single Judge inasmuch as the nomination of an additional Councillor cannot be said to be an adequate or appropriate representation of the merged or absorbed Panchayat in the CMC.</b><br>19. Answer to Point No.6: Whether delimitation exercise is to be carried out and reservation roster finalized on such merger and formation of City Municipal Council?<br>19.1.<span style=\"white-space:pre\">	</span>As observed above, Section 11 of the Act provides for reservation of seats for SC/ST, backward class, women etc. The number of seats reserved must be in the same proportion to the total number of seats to be filled through direct elections as the population of each of the above category in that area. Section 13 of the Act provides for delimitation of the wards for the purpose of election of councillors.&nbsp;<br>19.5.<span style=\"white-space:pre\">	</span>Thus, in the above circumstances, it is clear that <b style=\"background-color: rgb(255, 255, 0);\">when the limits of a Corporation and/or a municipality are changed, the delimitation exercise is required to be carried out in terms of Section 13, reservation fixed in terms of Section 11 and thereafter elections to be held.</b><br>20. Answer to Point No.7: Whether the provisions of Section 358 of the Act could apply to a newly formed City Municipal Council by conversion of Town Municipal Council and merger of panchayats is carried out?<br>20.1.<span style=\"white-space:pre\">	</span>It has been contended by Sri. Jaykumar S.Patil, learned Senior Counsel as also by Sri. Dhyan Chinnappa, learned Senior Counsel and Additional Advocate General that the provision of Section 358 would not apply to a newly formed CMC, but it would apply only if Panchayat is converted into a smaller urban area. They contend that in the present case, a Panchayat has been merged with the CMC and not converted into a CMC. Therefore, Section 358 would not apply.<br>20.2. Such a contention by both the senior counsel, if accepted, would lead to an anomalous situation inasmuch as the elected councillors to the TMC would continue to be councillors of the CMC, the Panchayat being dissolved, the term of the elected Panchayat members would come to an end. The Government would nominate additional councillors in the place of the Panchayat members who have vacated the office. Such nomination of additional councillors would in our considered opinion be in violation of Article 243-R and/or 243- T of the Constitution.<br>20.3. The nomination and/or continuation of the TMC as a CMC would be without delimitation, without the creation of wards fixing the reservation roaster and without holding of elections; thereby, the area which is got absorbed into the CMC would not be adequately represented thereby violating the basic tenets and principles of democracy.<br>20.4. The appellants herein contend that the elected body of the TMC would continue as the elected body of the CMC whereas the respondents contend that elected body of TMC stood dissolved with the conversion or the absorption.<br>20.8. In view of the above, <b style=\"background-color: rgb(255, 255, 0);\">we are of the considered opinion that the only provision which would be applicable to the present case is Section 358 of the Act since the exercise of powers under Section 359 (1) (j) or Section 360 (d) would not serve the purpose and more so, that Sections do not provide for simultaneous exercise of powers under those sections. In view thereof, we hold that Section 358 would apply to newly formed CMC by way of conversion of TMC and merger of panchayats.</b><br>21. Answer to Point No.8: Does the judgment of the learned Single Judge suffer from legal infirmity requiring interference?<br>21.4.<span style=\"white-space:pre\">	</span>The learned Single Judge has considered all these aspects and has come to a reasoned conclusion that Section 358 of the Act would be applicable and an interim Council would come into being for a period of six months and thereafter elections have to be held to the newly formed CMC after carrying out delimitation exercise and fixing the reservation roaster i.e., fulfill the requirement of Sections 11 and 13 of the Act. This in our considered opinion was the only proper order that could have been passed in the given facts and circumstances. More so, when the say of the Councillors of the erstwhile Nelamangala TMC is that they were continued to be councillors for a period of five years from the time of&nbsp; the constitution of the CMC and the Panchayats could only be represented by the Additional Councillors nominated by the Government in the said period of 5 years.<br>22.3. Any absorption of a TMC into a CMC to be done in such a manner that the entire process is to be completed within six months prior to the due date of the election. Once elections are held, no such conversion/up-gradation to be done till the end of the term of the present Council, though the process could be taken up at the time nearing the end of the term so as to complete it within the above said six months prior to the end of the term.<br>22.4. Any absorption of a Panchayat (whole or part) to be done in such a manner that the entire process is to be completed within six months prior to the due date of the election. Once elections are held, no such conversion/up-gradation to be done till the end of the term of the present Council, though the process could be taken up at the time nearing the end of the term so as to complete it within the above said six months prior to the end of the term.<br>22.5. The delimitation exercise to be carried out at least five months prior to the elections;<br>22.6. Reservation of seats to be carried out at least four months prior to the elections.<br>23. Answer to Point No.9: What Order?<br>23.1.<span style=\"white-space:pre\">	</span>In the result, the Writ Appeal stands dismissed by affirming the order dated 05.01.2021 passed by the learned Single Judge in W.P.No.11725/2020 c/w W.P.No.6398/2020.<br><br><br></h4>', '7ec5e42cc499d29fbeaeef12c90b914d.PNG', 'ed33884e1f84fb6cb86df01f51be753f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-21', 1, '', '', '2021-05-17 04:35:25', '2021-05-17 05:20:37');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(762, 'KQrwVLoo7FyN8pllYHD9GSQqx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Industrial Disputes Act, 1947. Software engineers in a software industry are workmen within the meaning of Section 2-s so long as they do not discharge any supervisory role. Karnataka High Court. 21 April 2021', '<h4>The Commissioner of Income Tax and another vs Texas Instruments Pvt Ltd. </h4><h4>Income Tax Appeal 141 of 2020 decided on 21 April 2021. </h4><h4>Justice Satish Chandra Sharma and Justice Suraj Govindaraj.&nbsp;</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Judgment Link</span>: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380720/1/ITA141-20-21-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380720/1/ITA141-20-21-04-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 16. Answer to Substantial Question No.1: Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in setting aside the disallowance of Rs.7,57,22,069 made under section 80JJAA of the Act by holding that the employees in software industry are covered by definition of ‘Workman’ in Explanation (iii)&nbsp; to section 80JJAA of the Act read with section 2(s) of the Industrial Dispute Act and employees who have worked for 300 days in a previous are eligible for&nbsp; the purpose of deduction under section 80JJAA in the succeeding year if he completes 300 days&nbsp; in such succeeding year without appreciating that person working in software industry cannot be said to be ‘Workman’ for the purpose of section 80JJAA&nbsp; of the Act and conditions prescribed for&nbsp; claiming said deduction are not satisfied by Assessee?<br>16.3.Section 2(s) of the ID Act is reproduced hereunder for easy reference:<br>“workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been&nbsp; dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-<br>(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or<br>(ii) who is employed in the police service or as&nbsp; an officer or other employee of a prison, or<br>(iii) who is employed mainly in a managerial or administrative capacity; or<br>(iv) who, being employed in a supervisory capacity, draws wages exceeding one&nbsp; thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.<br>16.4.<span style=\"white-space:pre\">	</span>In terms of section 2(s) of the ID Act, the definition of a workman is very wide inasmuch as the said definition would cover any person who has the technical knowledge, self skilled in an industry. It cannot be disputed that the Assessee’s business is an industry. It also cannot be disputed that the employees of the Assessee are technical persons skilled in software development and, as such, engaged by the Assessee to render services in the industry being run by the Assessee. Thus the software engineer would also come within the purview and ambit of workman under Section 2(s) of the ID Act so long as such a person does not take a supervisory role. The software engineer per se would be a workman; a software engineer rendering supervisory work would not be a workman. In the present case, it is not the case of the Revenue that the persons employed by the Assessee are rendering any supervisory work or assistance. Admittedly, the said persons have been engaged for the purpose of software development, and as such, they are to be regarded as a workman in terms of Section2 (s) of the ID Act.<br>16.5.<span style=\"white-space:pre\">	</span>The Apex Court has in the case of Devinder Singh’s (supra) categorically held that when a person is employed in an industry for hire or reward for doing manual, unskilled, skilled, operational, technical or clerical work, such a person would satisfy the requirement and would fall within the definition of the ‘workman’. In the present case, a software engineer&nbsp; is a skilled person, a technical person who is engaged by the employer for hire or reward. Therefore, all the said persons would satisfy the requirement of being a workman in terms of Section 2(s) of the I.D.Act.<br>16.6.<span style=\"white-space:pre\">	</span>In our considered view, the concept of the workman has undergone a drastic change and is no longer restricted to a blue collared person but even extends to white-collared person. A couple&nbsp; of decades ago, an industry would have meant only a factory, but today industry includes software and hardware industry, popularly known as the Information technology industry. Thus the undertaking of the Assessee being an industrial undertaking, the persons employed by the Assessee on this count also would satisfy the requirement of a workman under Section 2(s) of the ID Act.<br>16.9.<span style=\"white-space:pre\">	</span>The meaning or interpretation now sought to be given by Sri. Aravind, learned&nbsp; Senior Panel counsel is that only if the employee were employed for a period of<br>300 days in a particular financial year, only then deductions could be claimed, if not the deductions could not be claimed even though such employee has been employed for 300 continuous days or more.<br>16.10. We would disagree with the said contention. What is required is for a person to be employed for a period of 300 days continuously. There is no such criteria made out for a person to be employed in any particular year or otherwise. If such a restrictive interpretation is given, then any person employed post 5th June of a particular&nbsp; year would not entitle the Assessee to claim any deduction. Thus in order to claim the benefit under Section 80JJ-AA, an employer would have to hire the workmen before 5th June of that year.&nbsp; As a corollary, since the Assessee would not get any benefit if the workmen were engaged post 5th June, the employer/Assessee may not even employ anyone post 5th June, which would&nbsp; militate against the purpose and intent of Section 80JJ-AA, which is the encourage creation<span style=\"white-space:pre\">	</span>of new<span style=\"white-space:pre\">	</span>employment opportunities.<br>16.11. The Income-tax Appellate Tribunal, while considering a similar situation as&nbsp; in Bosch Limited (supra) held that so long as the workman employed for 300 days, even if the said period is split into two blocks, i.e. the assessment year or financial year, the Assessee would be entitled to the benefit of Section 80JJ-AA<br>in the next assessment year and so on so forthwith for a period of three years. The Income-tax Appellate Tribunal, having held to that effect, in our considered opinion, it would not be open for the Revenue to now contend otherwise, more so since the said order has attained&nbsp; finality on account of the Revenue not having filed an appeal.<br>16.12. It is sought to be contended by Sri. K V Aravind, learned Senior Panel counsel that the fact that such an interpretation could not be given is established by the curative amendment carried out in the year 2018 wherein it is clarified that an assesses whose employee completes 300 days in a second year would also be entitled to a deduction for three years therefrom. Thus<br>he submits that the amendment having been brought into force in the year 2018 the present matter relating to the year 2007-2008, the said curative or clarificatory amendment would not come to the rescue of the Assessee and as&nbsp; such, the finding of the Tribunal in this regard is required to be set aside.</h4><h4>16.13. We are unable to agree with such a submission- the amendment of the year 2018 though claimed curative by Sri. Aravind, we are of the considered opinion that the same is more an explanatory amendment or a clarificatory amendment which clarifies the methodology of applying Section 80JJ-AA of the Act. If the submission of Sri. K.V.Aravind is&nbsp; accepted, then no employer/assessee would be able to fulfil the requirement of employing its labour/assessee prior to 5th June of that assessment year so as to claim the benefit of Section 80JJ-AA. Such a narrow and pedantic approach is impermissible. It also being on account of the fact that Section 80JJ-AA relating to deductions under Chapter is an incentive and, therefore, has to be read liberally.&nbsp;<br><b style=\"background-color: rgb(255, 255, 0);\">16.15. In view thereof, the substantial question No.1 is answered by holding that the software professional/engineer is a workman within the meaning of Section 2(s) of ID Act, so long as such a software professional does not discharge supervisory functions, the benefit of Section 80JJ-AA can be claimed by an employer/assessee even if the employee were not to complete 300 days in a particular assessment year but in the subsequent year so long as there is continuity of employment, the Assessee could continue to claim further benefit in the next two years as provided in under Section 80JJ-AA of the Act.<br>16.16. Accordingly, we answer Question No.1 by holding that a software engineer in a software industry is a workman within the meaning of Section 2(s) of the Industrial Disputes Act so long as the Software engineer does not discharge any supervisory role.</b><br>16.17. The period of 300 days as mentioned under Section 80JJAA of the Act could be taken into consideration both in the previous year and the succeeding year for the purpose of availing benefit under Section 80JJAA. It is not&nbsp; required&nbsp; that the workman works for entire 300 days in the previous year.<br>16.18. Hence, in the facts and circumstances of the case, the software engineer being workman having satisfied the period of 300 days, the assessee is entitled to claim deduction under Section 80JJAA.<br>Accordingly, the appeals are dismissed.<br><br><br><br></h4><p><br></p>', '6375986e0f11d436a5b6c99927610d3d.PNG', '92801c2f980f8eafaee1e9397676e423.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-21', 1, '', '', '2021-05-17 06:00:19', '2021-05-17 06:00:19'),
(763, 'iFchyy2s5QYRoHCM4U5ASfFyq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Income Tax Act, 1961. Section 80JJAA. Deduction in respect of employment of new workmen. Calendar year and not financial year is to be considered to compute completion of 300 days by the workmen. Karnataka High Court. 21 April 2021', '<h4>The Commissioner of Income Tax and another vs Texas Instruments Pvt Ltd.<br>Income Tax Appeal 141 of 2020 decided on 21 April 2021.<br>Justice Satish Chandra Sharma and Justice Suraj Govindaraj.&nbsp;<br>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380720/1/ITA141-20-21-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380720/1/ITA141-20-21-04-2021.pdf</a><br>Relevant paragraphs: 16. Answer to Substantial Question No.1: Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in setting aside the disallowance of Rs.7,57,22,069 made under section 80JJAA of the Act by holding that the employees in software industry are covered by definition of ‘Workman’ in Explanation (iii)&nbsp; to section 80JJAA of the Act read with section 2(s) of the Industrial Dispute Act and employees who have worked for 300 days in a previous are eligible for&nbsp; the purpose of deduction under section 80JJAA in the succeeding year if he completes 300 days&nbsp; in such succeeding year without appreciating that person working in software industry cannot be said to be ‘Workman’ for the purpose of section 80JJAA&nbsp; of the Act and conditions prescribed for&nbsp; claiming said deduction are not satisfied by Assessee?<br>16.3.Section 2(s) of the ID Act is reproduced hereunder for easy reference:<br>“workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been&nbsp; dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-<br>(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or<br>(ii) who is employed in the police service or as&nbsp; an officer or other employee of a prison, or<br>(iii) who is employed mainly in a managerial or administrative capacity; or<br>(iv) who, being employed in a supervisory capacity, draws wages exceeding one&nbsp; thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.<br>16.4.<span style=\"white-space:pre\">	</span>In terms of section 2(s) of the ID Act, the definition of a workman is very wide inasmuch as the said definition would cover any person who has the technical knowledge, self skilled in an industry. It cannot be disputed that the Assessee’s business is an industry. It also cannot be disputed that the employees of the Assessee are technical persons skilled in software development and, as such, engaged by the Assessee to render services in the industry being run by the Assessee. Thus the software engineer would also come within the purview and ambit of workman under Section 2(s) of the ID Act so long as such a person does not take a supervisory role. The software engineer per se would be a workman; a software engineer rendering supervisory work would not be a workman. In the present case, it is not the case of the Revenue that the persons employed by the Assessee are rendering any supervisory work or assistance. Admittedly, the said persons have been engaged for the purpose of software development, and as such, they are to be regarded as a workman in terms of Section2 (s) of the ID Act.<br>16.5.<span style=\"white-space:pre\">	</span>The Apex Court has in the case of Devinder Singh’s (supra) categorically held that when a person is employed in an industry for hire or reward for doing manual, unskilled, skilled, operational, technical or clerical work, such a person would satisfy the requirement and would fall within the definition of the ‘workman’. In the present case, a software engineer&nbsp; is a skilled person, a technical person who is engaged by the employer for hire or reward. Therefore, all the said persons would satisfy the requirement of being a workman in terms of Section 2(s) of the I.D.Act.<br>16.6.<span style=\"white-space:pre\">	</span>In our considered view, the concept of the workman has undergone a drastic change and is no longer restricted to a blue collared person but even extends to white-collared person. A couple&nbsp; of decades ago, an industry would have meant only a factory, but today industry includes software and hardware industry, popularly known as the Information technology industry. Thus the undertaking of the Assessee being an industrial undertaking, the persons employed by the Assessee on this count also would satisfy the requirement of a workman under Section 2(s) of the ID Act.<br>16.9.<span style=\"white-space:pre\">	</span>The meaning or interpretation now sought to be given by Sri. Aravind, learned&nbsp; Senior Panel counsel is that only if the employee were employed for a period of<br>300 days in a particular financial year, only then deductions could be claimed, if not the deductions could not be claimed even though such employee has been employed for 300 continuous days or more.<br>16.10. We would disagree with the said contention. What is required is for a person to be employed for a period of 300 days continuously. There is no such criteria made out for a person to be employed in any particular year or otherwise. If such a restrictive interpretation is given, then any person employed post 5th June of a particular&nbsp; year would not entitle the Assessee to claim any deduction. Thus in order to claim the benefit under Section 80JJ-AA, an employer would have to hire the workmen before 5th June of that year.&nbsp; As a corollary, since the Assessee would not get any benefit if the workmen were engaged post 5th June, the employer/Assessee may not even employ anyone post 5th June, which would&nbsp; militate against the purpose and intent of Section 80JJ-AA, which is the encourage creation<span style=\"white-space:pre\">	</span>of new<span style=\"white-space:pre\">	</span>employment opportunities.<br>16.11. The Income-tax Appellate Tribunal, while considering a similar situation as&nbsp; in Bosch Limited (supra) held that so long as the workman employed for 300 days, even if the said period is split into two blocks, i.e. the assessment year or financial year, the Assessee would be entitled to the benefit of Section 80JJ-AA in the next assessment year and so on so forthwith for a period of three years. The Income-tax Appellate Tribunal, having held to that effect, in our considered opinion, it would not be open for the Revenue to now contend otherwise, more so since the said order has attained&nbsp; finality on account of the Revenue not having filed an appeal.<br>16.12. It is sought to be contended by Sri. K V Aravind, learned Senior Panel counsel that the fact that such an interpretation could not be given is established by the curative amendment carried out in the year 2018 wherein it is clarified that an assesses whose employee completes 300 days in a second year would also be entitled to a deduction for three years therefrom. Thus he submits that the amendment having been brought into force in the year 2018 the present matter relating to the year 2007-2008, the said curative or clarificatory amendment would not come to the rescue of the Assessee and as&nbsp; such, the finding of the Tribunal in this regard is required to be set aside.<br>16.13. We are unable to agree with such a submission- the amendment of the year 2018 though claimed curative by Sri. Aravind, we are of the considered opinion that the same is more an explanatory amendment or a clarificatory amendment which clarifies the methodology of applying Section 80JJ-AA of the Act. If the submission of Sri. K.V.Aravind is&nbsp; accepted, then no employer/assessee would be able to fulfil the requirement of employing its labour/assessee prior to 5th June of that assessment year so as to claim the benefit of Section 80JJ-AA. Such a narrow and pedantic approach is impermissible. It also being on account of the fact that Section 80JJ-AA relating to deductions under Chapter is an incentive and, therefore, has to be read liberally.&nbsp;<br>16.15. In view thereof, the substantial question No.1 is answered by holding that the software professional/engineer is a workman within the meaning of Section 2(s) of ID Act, so long as such a software professional does not discharge supervisory functions, the benefit of Section 80JJ-AA can be claimed by an employer/assessee even if the employee were not to complete 300 days in a particular assessment year but in the subsequent year so long as there is continuity of employment, the Assessee could continue to claim further benefit in the next two years as provided in under Section 80JJ-AA of the Act.<br>16.16. Accordingly, we answer Question No.1 by holding that a software engineer in a software industry is a workman within the meaning of Section 2(s) of the Industrial Disputes Act so long as the Software engineer does not discharge any supervisory role.<br><b style=\"background-color: rgb(255, 255, 0);\">16.17. The period of 300 days as mentioned under Section 80JJAA of the Act could be taken into consideration both in the previous year and the succeeding year for the purpose of availing benefit under Section 80JJAA. It is not&nbsp; required&nbsp; that the workman works for entire 300 days in the previous year.</b><br><b style=\"background-color: rgb(255, 255, 0);\">16.18. Hence, in the facts and circumstances of the case, the software engineer being workman having satisfied the period of 300 days, the assessee is entitled to claim deduction under Section 80JJAA.</b><br>Accordingly, the appeals are dismissed.</h4>', 'c5b42ada8f5814dd83df5ec55e8af9db.PNG', '535bf2b11c7f0703451c97dd091cd82a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-21', 1, '', '', '2021-05-17 06:07:03', '2021-05-16 19:44:50'),
(764, 'c2ltHglygdn0QPAK7MHCaJ6a7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Section 167.  If remand is absolutely illegal, lacks jurisdiction, passed in absolutely mechanical manner, writ for Habeus Corpus is maintainable. Supreme Court. 12 May 2021', '<h4>Goutam Navlakha vs National Investigating Agency.<br><h4>Criminal Appeal 510 of 2021 decided on 12 May 2021.<br>Justice Uday Umesh Lalit and Justice K.M. Joseph&nbsp;<br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/4836/4836_2021_33_1502_28011_Judgement_12-May-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/4836/4836_2021_33_1502_28011_Judgement_12-May-2021.pdf<br></a><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 61. A Habeas Corpus petition is one seeking\r\nredress in the case of illegal detention. It is\r\nintended to be a most expeditious remedy as&nbsp;liberty is at stake. Whether a Habeas Corpus\r\npetition lies when a person is remanded to\r\njudicial custody or police custody is not res\r\nintegra. We may notice only two judgments of\r\nthis court. In Manubhai Ratilal Patel v. State\r\n of Gujarat and others&nbsp;(2013) 1 SCC 314. We may notice\r\nparagraph 24.</h4><h4 style=\"margin-left: 25px;\"> “(24) The act of directing remand\r\nof an accused is fundamentally a\r\njudicial function. The Magistrate\r\ndoes not act in executive capacity\r\nwhile ordering the detention of an\r\naccused. While exercising this\r\njudicial act, it is obligatory on\r\nthe part of the Magistrate to\r\nsatisfy himself whether the\r\nmaterials placed before him justify\r\nsuch a remand or, to put it\r\ndifferently, whether there exist\r\nreasonable grounds to commit the\r\naccused to custody and extend his\r\nremand. The purpose of remand as\r\npostulated under Section 167 is\r\nthat investigation cannot be\r\ncompleted within 24 hours. It\r\nenables the Magistrate to see that\r\nthe remand is really necessary.\r\nThis requires the investigating\r\nagency to send the case diary along&nbsp;with the remand report so that the\r\nMagistrate can appreciate the\r\nfactual scenario and apply his mind\r\nwhether there is a warrant for\r\npolice remand or justification for\r\njudicial remand or there is no need\r\nfor any remand at all. It is\r\nobligatory on the part of the\r\nMagistrate to apply his mind and\r\nnot to pass an order of remand\r\nautomatically or in a mechanical\r\nmanner.”</h4><h4>However, the Court also held as follows:</h4><h4 style=\"margin-left: 25px;\">“31. It is well-accepted principle\r\nthat a writ of habeas corpus is not\r\nto be entertained when a person is\r\ncommitted to judicial custody or\r\npolice custody by the competent\r\ncourt by an order which prima facie\r\ndoes not appear to be without\r\njurisdiction or passed in an\r\nabsolutely mechanical manner or\r\nwholly illegal. As has been stated\r\n in B. Ramachandra Rao [(1972) 3 SCC\r\n256 : 1972 SCC (Cri) 481 : AIR 1971\r\n SC 2197] and Kanu Sanyal [(1974) 4\r\nSCC 141:1974 SCC (Cri) 280] , the\r\ncourt is required to scrutinise the\r\nlegality or otherwise of the order\r\nof detention which has been passed.\r\nUnless the court is satisfied that\r\na person has been committed to jail\r\ncustody by virtue of an order that\r\nsuffers from the vice of lack of\r\njurisdiction or absolute&nbsp;illegality, a writ of habeas corpus\r\ncannot be granted.”</h4><h4>\r\n62. One of us (U.U. Lalit, J.) speaking for a\r\nBench of two, followed the aforesaid line of\r\nthought in the decision of Serious Fraud\r\nInvestigation Office and Ors. vs. Rahul Modi\r\n and Ors. (2019) 5 SCC 266 and held as follows:&nbsp;</h4><h4 style=\"margin-left: 25px;\">“(21) The act of directing remand\r\nof an accused is thus held to be a\r\njudicial function and the challenge\r\nto the order of remand is not to be\r\nentertained in a habeas corpus\r\npetition.\"</h4><h4>We may also notice paragraph 19 from the same\r\njudgment.</h4><h4 style=\"margin-left: 25px;\">“(19) The law is thus clear that “in\r\nhabeas corpus proceedings a court is to\r\nhave regard to the legality or\r\notherwise of the detention at the time\r\nof the return and not with reference to\r\nthe institution of the proceedings”.&nbsp;</h4><h4>63. Thus, we would hold as follows:&nbsp;<br>If the remand is absolutely illegal or the\r\nremand is afflicted with the vice of lack\r\nof jurisdiction, a Habeas Corpus petition\r\nwould indeed lie. Equally, if an order of\r\nremand is passed in an absolutely\r\nmechanical manner, the person affected can\r\nseek the remedy of Habeas Corpus. Barring\r\nsuch situations, a Habeas Corpus petition\r\nwill not lie.&nbsp;<br><br></h4></h4><p><br></p>', '4d7fb1e559a490acb43d2a1ae148bf9a.jpg', 'eb65bd0bef4734a10896ee1b036bd7a5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-12', 1, '', '', '2021-05-17 22:40:29', '2021-05-17 22:40:29'),
(765, '4L3VbMDgSrtA8kOKkPMjlVkvz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contract Act, 1872. Agreement of sale signed only by the vendor and delivered to the purchaser and accepted by the purchaser is a valid contract. Same is enforceable by the purchaser in case of breach. Madras High Court. 19 April 2021', '<h4>N. Sankaran vs R. Shanmuga Raj,</h4><h4>S.A.No.94 of 2008 & C.M.P.No.24471 of 2019. </h4><h4>Decided on 19 April 2021. Judgment Link: <a href=\"https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/579939\" target=\"_blank\">https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/579939</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 18. The contention\r\nraised by the defendant\'s counsel that Ex.A1 sale agreement cannot be treated\r\nas a valid sale agreement in the absence of the signature of the plaintiff, the\r\npurchaser, has to be repelled, in view of the decision of the Apex Court reported\r\nin (2009) 2 SCC 582 (Aloka Bose v. Parmatma Devi, wherein it has been clearly\r\nheld that an agreement of sale signed only by the vendor is valid and\r\nenforceable by the purchaser and the position of law has been outlined by the\r\nApex Court in the abovesaid decision as follows:</h4><h4 style=\"margin-left: 25px;\"><br>“A. Specific Relief\r\nAct, 1963 - Ss. 9, 10 and 20 - Specific performance of agreement to sell -\r\nAgreement signed/executed only by vendor, and not by purchaser - Validity and\r\nenforceability of - Use of format in agreement for execution by both parties -\r\nIntention of parties to the contrary - Evidence of existence of oral contract -\r\nEffect - Considering S.10, Contract Act and its proviso and the fact that\r\nattention of court not drawn to any law applicable in the State concerned at\r\nthe relevant time which required an agreement of sale to be made in writing or\r\nin the presence of witnesses or to be registered, held, even an oral agreement\r\nto sell will be valid - If so, a written agreement signed by one of the\r\nparties, if it evidences such an oral agreement will also be valid - In India,\r\nan agreement of sale signed by vendor alone and delivered to purchaser, and\r\naccepted by purchaser, has always been considered to be a valid contract - In\r\nthe event of breach by vendor, it can be specifically enforced by purchaser -\r\nThere is, however, no practice of purchaser alone signing an agreement of sale.\r\n- In the present case, facts indicated that the intention of the parties was\r\nthat the agreement should be complete on signature of vendors only - Thus, in view\r\nof the aforesaid, the agreement of sale signed only by vendors, held, valid and\r\nenforceable by the purchaser - Contract and Specific Relief - Formation of\r\ncontract - Formal requirements - Contract Act, 1872 - Ss.2(e) & (h) and 10\r\n- Transfer of Property Act, 1882 - Ss.54 & 5.<br>Held:<br>An agreement of\r\nsale comes into existence when the vendor agrees to sell and the purchaser\r\nagrees to purchase, for an agreed consideration on agreed terms. It can be\r\noral. It can be by exchange of communications which may or may not be signed.\r\nIt may be by a single document signed by both parties. It can also be by a\r\ndocument in two parts, each party signing one copy and then exchanging the\r\nsigned copy as a consequence of which the purchaser has the copy signed by the\r\nvendor and a vendor has a copy signed by the purchaser. Or it can be by the\r\nvendor executing the document and delivering it to the purchaser who\r\naccepts it.<br>Considering Section\r\n10 of the Contract Act, 1872 and the proviso thereto, no attention has been\r\ndrawn to any law applicable in the State concerned at the relevant time, which\r\nrequires an agreement of sale to be made in writing or in the presence of\r\nwitnesses or to be registered. Therefore, even an oral agreement to sell is\r\nvalid. If so, a written agreement signed by one of the parties, if it evidences\r\nsuch an oral agreement will also be valid. In India, an agreement of sale\r\nsigned by the vendor alone and delivered to the purchaser, and accepted by the\r\npurchaser, has always been considered to be a valid contract. In the event of\r\nbreach by the vendor, it can be specifically enforced by the purchaser. There\r\nis, however, no practice of the purchaser alone signing an agreement of sale.<br></h4><h4 style=\"margin-left: 25px;\">From the facts it\r\nis clear that the intention of the parties was that the agreement should be\r\ncomplete on signature by only the vendor. Even though the draftsman who\r\nprepared the agreement might have used a format intended for execution by both\r\nvendor and purchaser, the manner in which the parties had proceeded, clearly\r\ndemonstrated that it was intended to be executed only by the vendor alone.\r\nThus, in view of the aforesaid it is held that the agreement of sale signed\r\nonly by the vendors was valid and enforceable by the purchaser.”</h4><h4 style=\"\">19. In the light of\r\nthe abovesaid position of law enunciated by the Apex Court that the sale\r\nagreement signed only by the vendor is valid and enforceable by the purchaser,\r\nresultantly, the first substantial question of law formulated in the second\r\nappeal is accordingly answered against the defendant and in favour of the\r\nplaintiff.</h4><p class=\"MsoNormal\"><o:p></o:p></p>\r\n\r\n<p class=\"MsoNormal\"><o:p></o:p></p>\r\n\r\n<p class=\"MsoNormal\"><o:p></o:p></p>\r\n\r\n<p class=\"MsoNormal\"><o:p></o:p></p>\r\n\r\n<p class=\"MsoNormal\"><o:p></o:p></p>\r\n\r\n\r\n\r\n<p class=\"MsoNormal\"><o:p></o:p></p>\r\n\r\n<p class=\"MsoNormal\"><o:p></o:p></p>', '2d9296b1b417567d9814f841dd1ca31d.jpg', 'e7562f5ffd7050597a8b29cd02d772ce.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-19', 1, '', '', '2021-05-19 20:34:38', '2021-05-19 20:36:17'),
(766, 'wgwRrlCbO8XQexYVgiOu1Ocal', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contract Act, 1872. Agreement of sale is valid even if it is signed only by the vendor provided it is delivered to the purchaser and accepted by the purchaser. The purchaser alone cannot sign the agreement of sale. Supreme Court. 17 December 2008. ', '<h4>Aloka Bose v. Parmatma Devi.</h4><h4>Civil Appeal&nbsp;6197 of 2000 decided on 17 December 2008.<br>Reported in (2009) 2 SCC 582. </h4><h4>Judgement Link:&nbsp;<a href=\"https://main.sci.gov.in/jonew/judis/33465.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/33465.pdf</a><br>17. Section 10 of the Act provides that all agreements are contracts if they are made by the free consent by the parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void under the provisions of the Contract Act. The proviso to Section 10 of the Act makes it clear that the section will not apply to contracts which are required to be made in writing or in the presence of witnesses or any law relating to registration of documents. Our attention has not been drawn to any law applicable in Bihar at the relevant time, which requires an agreement of sale to be made in writing or in the presence of witnesses or to be registered. Therefore, even an oral agreement to sell is valid. If so, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid.<br>13. The defendant submitted that a contract for sale, like any other contract, is bilateral in nature under which both vendor and the purchaser have rights and obligations. It is submitted that an agreement for sale being a contract for sale, creating a right in the purchaser to obtain a deed of conveyance in terms of the agreement under which, the vendor agrees to convey to the purchaser, and the purchaser agrees to purchase, the subject-matter of the agreement for an agreed consideration, subject to the terms and conditions stipulated in the said agreement, it is bilateral. It is therefore contended that an agreement of sale is neither complete nor enforceable unless it is signed by both the parties.<br>14. Certain amount of confusion is created on account of two divergent views expressed by two High Courts. In S.M. Gopal Chetty v. Raman [AIR 1998 Mad 169] a learned Single Judge held that where the agreement of sale was not signed by the purchaser, but only by the vendor, it cannot be said that there was a contract between the vendor and the purchaser; and as there was no contract, the question of specific performance of an agreement signed only by the vendor did not arise. On the other hand, in Mohd. Mohar Ali v. Mohd. Mamud Ali [AIR 1998 Gau 92] a learned Single Judge held that an agreement of sale was a unilateral contract (under which the vendor agreed to sell the immovable property to the purchaser in accordance with the terms contained in the said agreement), that such an agreement for sale did not require the signatures of both parties, and that therefore an agreement for sale signed only by the vendor was enforceable by the purchaser.<br>16. On the other hand, the observation in S.M. Gopal Chetty [AIR 1998 Mad 169] that unless agreement is signed both by the vendor and purchaser, it is not a valid contract is also not sound. An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it.<br>18. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter-offers by letters or other modes of recognised communication). In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale. </h4><h4><b style=\"background-color: rgb(255, 255, 0);\">Note: </b>AIR 1988 Madras 169, S.M. Gopal Chetty vs Raman&nbsp; &amp; AIR 1998 Gauhati 92 Mohd Mohar Ali vs Mohd Mamud Ali <span style=\"background-color: rgb(255, 255, 0);\">both overruled.</span>&nbsp;</h4><p><br></p>', '4124099e62e03f5e4f611d23d689825f.PNG', '5d167c119102bd1c451734783cfbd57b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2008-12-17', 1, '', '', '2021-05-20 01:16:04', '2021-05-20 01:24:52'),
(767, 'C2rNYcIGDS0yx53j5Pdjef6oK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Specific Relief Act,1963. Purchaser subsequent to sale agreement. A tenant being in possession with an agreement of sale can repel the claim of purchaser who made no inquiry as to the nature of tenant\'s possession. Karnataka High Court. 20 May 2021', '<h4>Joseph Kantharaj vs Josepth Sunder Augustine Reddy and others. </h4><h4>Regular First Appeal 1211 of 2011 decided on 20 May 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/382050/1/RFA1211-11-20-05-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/382050/1/RFA1211-11-20-05-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 72. Plaintiff (<i>in a suit for specific performance of sale agreement</i>) is not entitled to the relief of specific performance of an agreement of sale against a subsequent purchaser if the subsequent purchaser is a transferee for value who has paid his money in good faith and without notice of the original contract. The burden of proving the  fact that the subsequent purchaser and in this case, defendant Nos. 2 and 3 had purchased the suit schedule properties for value and they had paid their money in good faith and without notice of the original contract is on such purchasers namely defendant Nos. 2 and 3 herein. (Vide (1973) 3 SCC 418 – Dr. Govinddas and another vs. Shrimati Shantibai and others).<br>74.<span style=\"white-space:pre\">	</span>Was there any good faith on the part of the defendant in entering into the transaction ? The evidence let in by the defendants show that suit schedule properties are situated in the same locality where at a short distance away from the same, the mother and younger brother of defendant Nos. 2 and 3 were residing as a tenant under  the same landlord, namely J.Anthony Swamy.   <br>A useful reference in this behalf may be made to the observation of the Hon’ble Supreme Court (in (2000) 6 SCC 402 - R.K. Mohammed Ubaidullah and others vs. Hajee C. Abdul Wahab (D) by LRs. and others) which is as follows:</h4><h4 style=\"margin-left: 25px;\">“13. In paragraph 6 of the written statement defendants 2 to 4 stated that they  had  purchased  the property only after contacting the plaintiff; they sought the permission of the plaintiff to inspect the suit godown informing him of their intention to purchase the same from the first  defendant.  The  trial court did not accept this contention and rightly so in our opinion. In the ordinary course  a reasonable prudent person placed in the position of the plaintiff would not have failed to mention about the existence of the prior agreement in his favour particularly when he is using the  very  same  godown as a tenant under the first  defendant  for  the last 20 years prior to the filing of the suit. Similarly the defendants 2 to 4 intending  to purchase the property in possession of a tenant would not have failed to make inquiry as to  any further interest in relation to possession or title of the plaintiff over the suit property. It is not uncommon that where a tenant is in possession of  the property, that too for a long time, using it for business purpose would always  like  to  purchase  the property getting all advantages if offered for  sale. Normally the landlord or owner of the property would also be interested in selling the property to a person in possession if  a reasonable  price  is  given to avoid litigation and to  have smooth transaction.  In certain statutes even provisions are made to give first option to a tenant to purchase the property. In such situation the defendants 2 to 4 would have made inquiry with the plaintiff about the nature of his possession and title under which he is in possession on the date of sale deed (Exhibit B-1) executed in their favour. If they had made inquiry plaintiff would have certainly  revealed  about Exhibit A-3 the prior agreement in his  favour.  If such inquiry was not made it only means that the defendants 2 to 5 willfully abstained from making such inquiry or they grossly neglected to do so. The defence of defendants 2  and  4  is  not  consistent with regard to contacting the plaintiff and informing of their intention to purchase the  property.  Once they took a stand that they directly contacted the plaintiff seeking his permission to inspect the suit property and in the evidence of DW-1 it  is  stated that they sent their clerk to the plaintiff seeking permission to inspect the suit property. Neither the name of that clerk was given nor he was examined nor it is stated about the same in the written statement.<br>As can be seen from Sections 19 (a)  and  (b)  extracted above specific performance of a contract can be enforced against (a) either party thereto and (b)  any  person  claiming  under  him  by  a  title arising subsequent to the contract, except a transferee for value who has paid his money in good faith and without notice  of  the  original  contract. Section 19(b) protects the bona fide purchaser in good faith for value without notice of the original contract. This protection is in the nature of  exception  to  the general rule. Hence the onus of  proof of  good faith  is on the purchaser who takes  the  plea  that  he  is  an innocent purchaser. Good faith is a question of fact to be considered and decided on the facts  of  each  case. Section  52 of  the  Penal  Code  emphasizes due care and attention  in  relation  to the good faith. In the General Clauses Act emphasis  is laid on honesty.<br>15. Notice is defined in Section  3 of  the  Transfer of Property Act. It may be actual where the party  has actual knowledge of the fact or constructive. \"A person is said to have notice\" of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search  which  he ought to have made, or gross negligence, he would have   known   it.    Explanation   II   of   said Section  3 reads:<br>\"Explanation II - Any person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being  in actual possession thereof.\"<br>Section 3 was amended by the Amendment Act of 1929 in relation to the definition of \'notice\'. The definition has been amended and supplemented by three explanations, which settle the law in several matters of great importance. For the immediate purpose Explanation-II is relevant. It states that actual possession is notice of the  title of  the person  in possession. Prior to the amendment there had been some uncertainty because of divergent views expressed by various High Courts in relation to the actual possession as notice of title. A person may enter the property in one capacity and having  a  kind of interest. But subsequently  while  continuing in possession of the property  his  capacity  or  interest may change. A person entering the property as tenant later may  become  usufructuary  mortgagee or may be agreement holder to purchase the same property or may be some other interest is created in his favour subsequently. Hence with reference to subsequent purchaser it  is  essential  that he should make an inquiry as to title or interest of the person in actual possession as on the date  when sale transaction was made in his favour. The actual possession of a person itself is deemed or constructive notice of the title if any, of  a  person  who is for the time being in  actual  possession thereof. A subsequent purchaser  has  to  make inquiry as to further interest, nature of possession and title under which the person was continuing in possession on the  date of purchase of the property.  In the case on hand defendants 2 to  4  contended  that they were already aware of the nature of possession of the  plaintiff over the suit property  as  a tenant and as such there was no  need  to  make  any inquiry. At one stage they also contended that they purchased the property after contacting the plaintiff, of course, which contention was negatived by the learned trial court as well as the High court. Even otherwise the said contention is self- contradictory. In view of Section 19(b) of the Specific Relief  Act and definition of \'notice\' given  in Section  3 of the Transfer of Property Act read along with explanation II, it is rightly held by the trial court as well as by the High Court that the defendants 2 to 5 were not bona fide purchasers in good faith for value without notice of the original contract.<br>16.<span style=\"white-space:pre\">	</span>……… The leading case on  the  subject,  relied on in a number of Indian decisions is - \'Daniels v. Davision\', (1809) 16 Ves Jun 249 (B). The Lord Chancellor held that: \"Where there is a tenant in possession under a lease, or an agreement, a person purchasing part of the estate must be bound to inquire on what terms that person is in possession..........that a tenant being in possession under a lease, with an agreement in his pocket to become the purchaser, those circumstances altogether give him an equity repelling the claim of a subsequent purchaser who made no inquiry as to the nature of his possession\".\" As can be seen from the  paragraph,  extracted  above, that in case of contradictory evidence the circumstances have to be kept in view in deciding whose version is more acceptable. One of the circumstances that  was  held  against  the subsequent purchasers was that the parties were residents or had shops in the same vicinity and  it was not probable that the subsequent purchasers would not have come to know of  the  execution  of  the agreement. In the  case on hand  the  trial  court as well as  the High  Court  have  given  reasons based on evidence and have indicated several circumstances for not accepting the version of defendants 2 to 4 that they  had  no  knowledge  of the prior agreement A-3; one of the circumstances being   that  the   parties   are  neighbours  in  place of business as well as in residential locality. We have also already referred to that briefly.”<br></h4><h4>75......It is observed by the Hon’ble Supreme Court in a similar situation as follows (2000) <span style=\"font-size: 1.3125rem;\">6 </span><span style=\"font-size: 1.3125rem;\">SCC </span><span style=\"font-size: 1.3125rem;\">420</span><span style=\"font-size: 1.3125rem;\">-</span><span style=\"font-size: 1.3125rem;\">Motilal </span><span style=\"font-size: 1.3125rem;\">Jain </span><span style=\"font-size: 1.3125rem;\">vs. Ramdasi Devi (Smt.) and others.</span></h4><h4 style=\"margin-left: 25px;\">“34. The equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties. The necessary ingredient has  to  be proved  and  established by  the  plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendant does not come with clean hands and suppresses material facts and evidence and misled the Court then such discretion should not be  exercised by refusing  to grant  specific performance.”<br><br><br></h4>', '9e3e226c6812411edf8f338e08dcc418.jpg', '1a1d9f4d87ff1c37607503d8fadc3a08.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-20', 1, '', '', '2021-05-21 19:52:26', '2021-05-21 19:57:01');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(768, 'xUdyG0ZTTgiERmTFWLjzWlHER', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Insolvency and Bankruptcy Code, 2016, Approval of a resolution plan does not ipso facto discharge a personal guarantor of a corporate debtor of her or his liabilities under the contract of guarantee. Supreme Court. 21 May 2021', '<h4>Lalit Kumar Jain vs Union of India and ohers. </h4><h4>Transferred Case (Civil) 245 of 2020 and connected matters decided on 21 May 2021.&nbsp;</h4><h4>Justice L. Nageswara Rao and Justice S. Ravindra Bhat. Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2020/26016/26016_2020_37_1501_28029_Judgement_21-May-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/26016/26016_2020_37_1501_28029_Judgement_21-May-2021.pdf</a><br></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 102. The other question which parties had urged before this court was that the\r\nimpugned notification, by applying the Code to personal guarantors only, takes away\r\nthe protection afforded by law; reference was made to Sections 128, 133 and 140 of\r\nthe Contract Act; the petitioners submitted that once a resolution plan is accepted, the\r\ncorporate debtor is discharged of liability. As a consequence, the guarantor whose\r\nliability is co-extensive with the principal debtor, i.e. the corporate debtor, too is\r\ndischarged of all liabilities. It was urged therefore, that the impugned notification\r\nwhich has the effect of allowing proceedings before the NCLT by applying provisions\r\nof Part III of the Code, deprives the guarantors of their valuable substantive rights. </h4><h4>Insolvency and Bankruptcy Code, 2016,&nbsp;Section 31, Indian Contract Act; Sections&nbsp;128. Surety’s liability, Section 129. Continuing guarantee, Section 130. Revocation of continuing guarantee, Section&nbsp;131.Revocation of continuing guarantee by surety’s death, Section 133.Discharge of surety by variance in terms of contract, Section&nbsp;134.Discharge of surety by release or discharge of principal\r\ndebtor, Section 140.Rights of surety on payment or performance, Section 141.Surety’s right to benefit of creditor’s securities referred to.&nbsp;</h4><h4>104. All creditors and other classes of claimants, including financial and\r\noperational creditors, those entitled to statutory dues, workers, etc., who participate in\r\nthe resolution process, are heard and those in relation to whom the CoC accepts or\r\nrejects pleas, are entitled to vent their grievances before the NCLT. After considering\r\ntheir submissions and objections, the resolution plan is accepted and approved. This\r\nresults in finality as to the claims of creditors, and others, from the company (i.e. the\r\ncompany which undergoes the insolvency process). The question which the\r\npetitioners urge is that in view of this finality, their liabilities would be extinguished;\r\nthey rely on Sections 128, 133 and 140 of the Contract Act to urge that creditors\r\ncannot therefore, proceed against them separately.<br>105. In Vijay Kumar Jain v. Standard Chartered Bank, this court, while dealing\r\nwith the right of erstwhile directors participating in meetings of Committee of\r\nCreditors observed that:</h4><h4 style=\"margin-left: 25px;\">“we find that Section 31(1) of the Code would make it clear that\r\nsuch members of the erstwhile Board of Directors, who are often\r\nguarantors, are vitally interested in a resolution plan as such\r\nresolution plan then binds them. Such plan may scale down the\r\ndebt of the principal debtor, resulting in scaling down the debt of\r\nthe guarantor as well, or it may not. The resolution plan may also\r\nscale down certain debts and not others, leaving guarantors of the\r\nlatter kind of debts exposed for the entire amount of the debt. The\r\nregulations also make it clear that these persons are vitally\r\ninterested in resolution plans as they affect them”</h4><h4>106. The rationale for allowing directors to participate in meetings of the CoC is\r\nthat the directors’ liability as personal guarantors persists against the creditors and an\r\napproved resolution plan can only lead to a revision of amount or exposure for the\r\nentire amount. Any recourse under Section 133 of the Contract Act to discharge the\r\nliability of the surety on account of variance in terms of the contract, without her or\r\nhis consent, stands negated by this court, in V. Ramakrishnan where it was observed\r\nthat the language of Section 31 makes it clear that the approved plan is binding on the\r\nguarantor, to avoid any attempt to escape liability under the provisions of the\r\nContract Act. It was observed that:</h4><h4 style=\"margin-left: 25px;\">“25. Section 31(1), in fact, makes it clear that the guarantor\r\ncannot escape payment as the resolution plan, which has been\r\napproved, may well include provisions as to payments to be made\r\nby such guarantor.…”<br>\r\nAnd further that:<br>\r\n“26.1 Section 14 refers only to debts due by corporate debtors,\r\nwho are limited liability companies, and it is clear that in the vast\r\nmajority of cases, personal guarantees are given by Directors who\r\nare in management of the companies. The object of the Code is not\r\nto allow such guarantors to escape from an independent and coextensive liability to pay off the entire outstanding debt, which is&nbsp;why Section 14 is not applied to them. However, insofar as firms\r\nand individuals are concerned, guarantees are given in respect of\r\nindividual debts by persons who have unlimited liability to pay\r\nthem. And such guarantors may be complete strangers to the\r\ndebtor — often it could be a personal friend. It is for this reason\r\nthat the moratorium mentioned in Section 101 would cover such\r\npersons, as such moratorium is in relation to the debt and not the\r\ndebtor.”<br></h4><h4>107. In Committee of Creditors of Essar Steel (I) Ltd. v. Satish Kumar\r\nGupta (2020) 8 SCC 531 (the “Essar Steel case”) this court refused to interfere with proceedings\r\ninitiated to enforce personal guarantees by financial creditors; it was observed as\r\nfollows:</h4><h4 style=\"margin-left: 25px;\">“106. Following this judgment in V. Ramakrishnan case [SBI v. V.\r\nRamakrishnan, (2018) 17 SCC 394], it is difficult to accept Shri\r\nRohatgi\'s argument that that part of the resolution plan which\r\nstates that the claims of the guarantor on account of subrogation\r\nshall be extinguished, cannot be applied to the guarantees\r\nfurnished by the erstwhile Directors of the corporate debtor. So far\r\nas the present case is concerned, we hasten to add that we are\r\nsaying nothing which may affect the pending litigation on account\r\nof invocation of these guarantees. However, NCLAT judgment being\r\ncontrary to Section 31(1) of the Code and this Court\'s judgment\r\nin V. Ramakrishnan case [SBI v. V. Ramakrishnan, (2018) 17 SCC\r\n394], is set aside.”<br></h4><h4>108. It is therefore, clear that the sanction of a resolution plan and finality imparted\r\nto it by Section 31 does not per se operate as a discharge of the guarantor’s liability.\r\nAs to the nature and extent of the liability, much would depend on the terms of the\r\nguarantee itself. However, this court has indicated, time and again, that an\r\ninvoluntary act of the principal debtor leading to loss of security, would not absolve a\r\nguarantor of its liability. In Maharashtra\r\nState Electricity Board Bombay v. Official Liquidator, High Court, Ernakulum &amp;\r\nAnr (1982 (3) SCC 358 the liability\r\nof the guarantor (in a case where liability of the principal debtor was discharged\r\nunder the insolvency law or the company law), was considered. It was held that in\r\nview of the unequivocal guarantee, such liability of the guarantor continues and the&nbsp;creditor can realize the same from the guarantor in view of the language of Section\r\n128 of the Contract Act as there is no discharge under Section 134 of that Act. This\r\ncourt observed as follows:</h4><h4 style=\"margin-left: 25px;\">\r\n“7. Under the bank guarantee in question the Bank has undertaken\r\nto pay the Electricity Board any sum up to Rs 50,000 and in order\r\nto realise it all that the Electricity Board has to do is to make a demand. Within forty-eight hours of such demand the Bank has to pay\r\nthe amount to the Electricity Board which is not under any obligation to prove any default on the part of the Company in liquidation\r\nbefore the amount demanded is paid. The Bank cannot raise the\r\nplea that it is liable only to the extent of any loss that may have\r\nbeen sustained by the Electricity Board owing to any default on the\r\npart of the supplier of goods i.e. the Company in liquidation. The\r\nliability is absolute and unconditional. The fact that the Company\r\nin liquidation i.e. the principal debtor has gone into liquidation\r\nalso would not have any effect on the liability of the Bank i.e. the\r\nguarantor. Under Section 128 of the Indian Contract Act, the liability of the surety is coextensive with that of the principal debtor\r\nunless it is otherwise provided by the contract. A surety is no doubt\r\ndischarged under Section 134 of the Indian Contract Act by any\r\ncontract between the creditor and the principal debtor by which\r\nthe principal debtor is released or by any act or omission of the\r\ncreditor, the legal consequence of which is the discharge of the\r\nprincipal debtor. But a discharge which the principal debtor may\r\nsecure by operation of law in bankruptcy (or in liquidation proceedings in the case of a company) does not absolve the surety of\r\nhis liability (see Jagannath Ganeshram Agarwala v. Shivnarayan\r\nBhagirath [AIR 1940 Bom 247; see also In re Fitzgeorge Ex\r\nparte Robson [(1905) 1 KB 462] ).”</h4><h4>\r\n109. This legal position was noticed and approved later in Industrial Finance\r\nCorpn. of India Ltd. v. Cannanore Spg. &amp; Wvg. Mills Ltd.(2002) 5 SCC 54 An earlier decision of\r\nthree judges, Punjab National Bank v. State of U.P.70 pertains to the issues regarding\r\na guarantor and the principal debtor. The court observed as follows:</h4><h4 style=\"margin-left: 25px;\">“The appellant had, after Respondent 4\'s management was taken\r\nover by U.P. State Textile Corporation Ltd. (Respondent 3) under\r\nthe Industries (Development and Regulation) Act, advanced some\r\nmoney to the said Respondent 4. In respect of the advance so made,\r\nRespondents 1, 2 and 3 executed deeds of guarantee undertaking to&nbsp;pay the amount due to the bank as guarantors in the event of the\r\nprincipal borrower being unable to pay the same.\r\n</h4><h4 style=\"margin-left: 25px;\">Subsequently, Respondent 3 which had taken over the management\r\nof Respondent 4 became sick and proceedings were initiated under\r\nthe Sick Textile Undertakings (Nationalisation) Act, 1974 (for short\r\n‘the Act’). The appellant filed suit for recovery against the\r\nguarantors and the principal debtor of the amount claimed by it.\r\n</h4><h4 style=\"margin-left: 25px;\">The following preliminary issue was, on the pleadings of the\r\nparties, framed:\r\n</h4><h4 style=\"margin-left: 25px;\">‘Whether the claim of the plaintiff is not maintainable in view of\r\nthe provisions of Act 57 of 1974 as alleged in para 25 of the written\r\nstatement of Defendant 2?’\r\n</h4><h4 style=\"margin-left: 25px;\">The trial court as well as the High Court, both came to the\r\nconclusion that in view of the provisions of Section 29 of the Act,\r\nthe suit of the appellant was not maintainable.\r\n</h4><h4 style=\"margin-left: 25px;\">We have gone through the provisions of the said Act and in our\r\nopinion the decision of the courts below is not correct. Section 5 of\r\nthe said Act provides for the owner to be liable for certain prior\r\nliabilities and Section 29 states that the said Act will have an\r\noverriding effect over all other enactments. This Act only deals\r\nwith the liabilities of a company which is nationalized and there is\r\nno provision therein which in any way affects the liability of a\r\nguarantor who is bound by the deed of guarantee executed by it.\r\nThe High Court has referred to a decision of this Court\r\nin Maharashtra SEB v. Official Liquidator, High Court,\r\nErnakulam [(1982) 3 SCC 358 : AIR 1982 SC 1497] where the\r\nliability of the guarantor in a case where liability of the principal\r\ndebtor was discharged under the insolvency law or the company\r\nlaw, was considered. It was held in this case that in view of the\r\nunequivocal guarantee such liability of the guarantor continues\r\nand the creditor can realize the same from the guarantor in view of\r\nthe language of Section 128 of the Contract Act as there is no\r\ndischarge under Section 134 of that Act.\r\n</h4><h4 style=\"margin-left: 25px;\">In our opinion, the principle of the aforesaid decision of this Court\r\nis equally applicable in the present case. The right of the appellant\r\nto recover money from Respondents 1, 2 and 3 who stood\r\nguarantors arises out of the terms of the deed of guarantee which\r\nare not in any way superseded or brought to a naught merely\r\nbecause the appellant may not be able to recover money from the\r\nprincipal borrower. It may here be added that even as a result of the\r\nNationalisation Act the liability of the principal borrower does not\r\ncome to an end. It is only the mode of recovery which is referred to\r\nin the said Act.”</h4><h4>110. In Re Kaupthing Singer and Friedlander Ltd. (in\r\nadministration) 2012 (1) All ER 883 Paras 11, 12, 53-54 the UK Supreme Court reviewed a large number of previous authorities on the concept of double proof, i.e. recovery from guarantors in the context of insolvency proceedings. The court held that:</h4><h4 style=\"margin-left: 25px;\">\"The function of the rule is not to prevent a double proof of the\r\nsame debt against two separate estates (that is what insolvency\r\npractitioners call \"double dip”). The rule prevents a double proof\r\nof what is in substance the same debt being made against the same\r\nestate, leading to the payment of a double dividend out of one\r\nestate. It is for that reason sometimes called the rule against\r\ndouble dividend. In the simplest case of suretyship (where the\r\nsurety has neither given nor been provided with security, and has\r\nan unlimited liability) there is a triangle of rights and liabilities\r\nbetween the principal debtor (PD), the surety (S) and the creditor\r\n(C). PD has the primary obligation to C and a secondary\r\nobligation to indemnify S if and so far as S discharges PD\'s\r\nliability, but if PD is insolvent S may not enforce that right in\r\ncompetition with C. S has an obligation to C to answer for PD\'s\r\nliability, and the secondary right of obtaining an indemnity from\r\nPD. C can (after due notice) proceed against either or both of PD\r\nand S. If both PD and S are in insolvent liquidation, C can prove\r\nagainst each for 100p in the pound but may not recover more than\r\n100p in the pound in all.”</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">\r\n111. In view of the above discussion, it is held that approval of a resolution plan\r\ndoes not ipso facto discharge a personal guarantor (of a corporate debtor) of her or his\r\nliabilities under the contract of guarantee. As held by this court, the release or\r\ndischarge of a principal borrower from the debt owed by it to its creditor, by an\r\ninvoluntary process, i.e. by operation of law, or due to liquidation or insolvency\r\nproceeding, does not absolve the surety/guarantor of his or her liability, which arises\r\nout of an independent contract. &nbsp;</b></h4><p><br></p>', '19d920f365bc50d2ac57cb7fdee8f515.PNG', 'f5448c666ffc2dd624447ebf042d06c7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-21', 1, '', '', '2021-05-22 03:51:21', '2021-05-22 03:53:40'),
(769, 'xyuylsfHYIBXWtC3HYDAoiIZv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Evidence Act, 1872. Failure to cross examine a witness who produces a document in proof of his assertion of certain set of facts is an admission of the facts contained therein. Karnataka High Court. 20 May 2021', '<h4>Joseph Kantharaj vs Josepth Sunder Augustine Reddy and others.<br>Regular First Appeal 1211 of 2011 decided on 20 May 2021.<br>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/382050/1/RFA1211-11-20-05-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/382050/1/RFA1211-11-20-05-2021.pdf</a><br>Relevant paragraphs:&nbsp;32. Now, let me consider what is the legal effect of failure of defendant to cross examine PW.1 on the authenticity or the genuineness of Ex.P2. Non-cross examination of PW.1 when it was produced during the evidence and spoken to by the PW1 takes away the right of the defendant to question the authenticity or the genuineness of the same subsequently. The legal effect of non-cross examination of the witness when he produces a document in proof of his assertion of certain set of facts is, undeniably, the admission of the facts contained therein. If it is otherwise, in law, the defendant was under a legal obligation to interrogate and question the witness producing documents regarding the authenticity of the same or regarding correctness of the recitals therein. The above position has fallen for consideration before the Hon’ble&nbsp; Supreme&nbsp; Court&nbsp; and&nbsp; the&nbsp; following&nbsp; observation&nbsp; in Muddasani Venkata Narasaiah v. Muddasani Sarojana reported in (2016) 12 SCC 288 is very apposite. It reads as follows:</h4><h4 style=\"margin-left: 25px;\">“15. Moreover, there was no effective cross- examination made on the plaintiff’s witnesses with respect to factum of execution of sale&nbsp; deed,&nbsp; PW.1&nbsp; and PW-2 have not been cross examined as&nbsp; to factum of execution of sale deed. The cross-examination is a matter of substance not of procedure one is required to&nbsp; put one’s own version&nbsp; in cross-examination of opponent. The effect of non cross-examination is that the statement of witness has not been disputed. The effect of not cross- examining the witnesses has been considered&nbsp; by&nbsp; this Court in Bhoju Mandal &amp; Ors. v. Debnath&nbsp; Bhagat &amp; Ors. AIR 1963 SC 1906. This&nbsp; Court&nbsp; repelled a submission on the ground that same was not put either to the witnesses or suggested&nbsp; before the courts below. Party is required to&nbsp; put&nbsp; his&nbsp; version to the witness. If no such questions are put&nbsp; the court would presume that the witness&nbsp; account has been accepted as held in M/s.&nbsp; Chuni&nbsp; Lal&nbsp; Dwarka Nath v. Hartford Fire Insurance Co. Ltd. &amp; Anr. AIR 1958 Punjab 440”.<br></h4><h4>33.<span style=\"white-space:pre\">	</span>It has to be noticed that it was only later during the arguments that a case was sought to be built regarding&nbsp; the non-genuineness of Ex.P.2 by&nbsp; suggesting&nbsp; that&nbsp; time&nbsp; of the admission appearing on the face of Ex.P.2 was an interpolation and, therefore, the whole of the contents of Ex.P.2 is a product of fabrication which was too readily&nbsp;accepted by the learned Court below without so much as scrutinizing the evidence as to whether, during the trial, there was any doubt raised so as to enable the plaintiff to offer further and more evidence on the said aspect.&nbsp;</h4>', '9ea799f8bd2ffd45d9e9563387cb937d.jpg', 'f1dee4dec4de568bf147e1f0fd2a80d1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-20', 1, '', '', '2021-05-23 02:45:44', '2021-05-23 02:45:44'),
(770, 'j3LxdndxcCtSnwoueb4TkfQ9h', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Benami Transaction. Circumstances under which a transaction can be considered as a benami transaction - explained. Supreme Court. 14 February 2017', '<h4>State of Karnataka v. J. Jayalalitha, </h4><h4>Criminal Appeal 300 - 3-3 of 2017 decided on 14 February 2017. </h4><h4>Justice Pinaki Chandra Ghose and Justice Amitava Roy</h4><h4>Judgement Link: <a href=\"https://main.sci.gov.in/jonew/judis/44563.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/44563.pdf</a></h4><h4>Reported in (2017) 6 SCC 263 <br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 252. This Court in Jaydayal Poddar [Jaydayal Poddar v. Bibi Hazra, (1974) 1 SCC 3] enunciated that it is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. The burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. It was propounded that the essence of a benami is the intention of the party or parties concerned and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. However, such difficulties do not relieve the person asserting the transaction to be benami, of any part of the serious onus that rests on him nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. It was exposited that the reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. It was held that though the question, whether a particular sale is benami or not, is largely one of fact and for determining this question, no absolute formula or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by the following circumstances : (SCC p. 7, para 6)<br>“(1) the source from which the purchase money came;<br>(2) the nature of possession of the property, after the purchase;<br>(3) motive, if any, for giving the transaction a benami colour;<br>(4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar;<br>(5) the custody of the title deeds after the sale; and<br>(6) the conduct of the parties concerned in dealing with the property after the sale.”<br>That the above indicia are not exhaustive and their efficacy varies according to the facts of each case was however underlined. The emphasis of the decision on benami purchase, therefore, is that there has to be either some direct evidence or strong circumstantial evidence to raise an inference that the property alleged to be benami had been purchased with the funds/resources of someone other than the person in whose name the property is shown in the document.<br>253. In the present case, there is also a charge of conspiracy and abetment and, therefore, the factors as above would have to be tested on the anvil of the overall circumstances to ascertain as to whether a reasonable inference therefrom can be drawn of a benami transaction as alleged. This is more so as by the very nature of the offence of conspiracy, the activities in connection therewith are expectedly hatched in secrecy.</h4><p><br></p>', '84fcc482450d944deb91f23c486ec4cd.PNG', 'b1cd8504020435ee6ab1fe5fcb98bac0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2017-02-14', 1, '', '', '2021-05-24 03:12:56', '2021-05-24 03:16:37'),
(771, 'kAHw08EBCyRmg9fVZnZn5SReb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Guidelines for grant of mandatory injunction. The plaintiff must possess strong case for trial which is higher standard than a prima facie case that is normally required for a prohibitory injunction. Supreme Court. 13 February 1990', '<h4>Dorab Cawasji Warden v. Coomi Sorab Warden </h4><h4>Civil Appeal 2422 of 1989 decided on 13 February 1990<br>Justice L.M. Sharma and Justice Ramaswami. V.&nbsp;<br>Reported in (1990) 2 SCC 117 at page 124<br>Judgment Link: <a href=\"https://main.sci.gov.in/jonew/judis/7661.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/7661.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 11. In Shepherd Homes Ltd. v. Sandham [(1970) 3 All ER 402: (1970) 3 WLR 348] Megarry J. observed:</h4><h4 style=\"margin-left: 25px;\">“(iii) On motion, as contrasted with the trial, the court was far more reluctant to grant a mandatory injunction; in a normal case the court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted; and this was a higher standard than was required for a prohibitory injunction.”</h4><h4><br>12. In Evans Marshall &amp; Co. Ltd. v. Bertola SA [(1973) 1 All ER 992: (1973) 1 WLR 349] the Court of Appeal held that:</h4><h4 style=\"margin-left: 25px;\">“Although the failure of a plaintiff to show that he had a reasonable prospect of obtaining a permanent injunction at the trial was a factor which would normally weigh heavily against the grant of an interlocutory injunction, it was not a factor which, as a matter of law, precluded its grant;”<br></h4><h4 style=\"\">The case law on the subject was fully considered in the latest judgment in Films Rover International Ltd. v. Cannon Film Sales Ltd. [(1986) 3 All ER 772] , Hoffmann, J. observed in that case: (All ER pp. 780-81)</h4><h4 style=\"margin-left: 25px;\">“But I think it is important in this area to distinguish between fundamental principles and what are sometimes described as ‘guidelines’, i.e. useful generalisations about the way to deal with the normal run of cases falling within a particular category. The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the ‘wrong’ decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’ in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle.”</h4><h4>Again at page 781 the learned Judge observed:</h4><h4 style=\"margin-left: 25px;\">“The question of substance is whether the granting of the injunction would carry that higher risk of injustice which is normally associated with the grant of a mandatory injunction. The second point is that in cases in which there can be no dispute about the use of the term ‘mandatory’ to describe the injunction, the same question of substance will determine whether the case is ‘normal’ and therefore within the guideline or ‘exceptional’ and therefore requiring special treatment. If it appears to the court that, exceptionally, the case is one in which withholding a mandatory interlocutory injunction would in fact carry a greater risk of injustice than granting it even though the court does not feel a ‘high degree of assurance’ about the plaintiff\'s chances of establishing his right, there cannot be any rational basis for withholding the injunction.”</h4><h4>and concluded that: (All ER p.782)</h4><h4 style=\"margin-left: 25px;\">“These considerations lead me to conclude that the Court of Appeal in Locabail International Finance Ltd. v. Agroexport [(1986) 1 All ER 901, 906: (1986) 1 WLR 657, 664] was not intending to ‘fetter the court\'s discretion by laying down any rules which would have the effect of limiting the flexibility of the remedy’, to quote Lord Diplock in the Cyanamid case [American Cyanamid Co. v. Ethicon Ltd., (1975) 1 All ER 504, 510: 1975 AC 396, 407] . Just as the Cyanamid [American Cyanamid Co. v. Ethicon Ltd., (1975) 1 All ER 504, 510: 1975 AC 396, 407] guidelines for prohibitory injunctions which require a plaintiff to show no more than an arguable case recognise the existence of exceptions in which more is required (compare Cayne v. Global Natural Resources plc [(1984) 1 All ER 225] ), so the guideline approved for mandatory injunctions in Locabail [(1986) 1 All ER 901, 906: (1986) 1 WLR 657, 664] recognises that there may be cases in which less is sufficient.”</h4><h4>On the test to be applied in granting mandatory injunctions on interlocutory applications in Halsbury\'s Laws of England, 4th edn., Vol. 24, para 948 it is stated:</h4><h4 style=\"margin-left: 25px;\">“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application.”</h4><h4>13. The law in United States is the same and it may be found in 42 American Jurisprudence 2d page 745 et seq.<br>14. As far the cases decided in India we may note the following cases.<br>15. In one of the earliest cases in Rasul Karim v. Pirubhai Amirbhai [ILR (1914) 38 Bom 381: 16 Bom LR 288: 24 IC 625] , Beaman, J. was of the view that the courts in India have no power to issue a temporary injunction in a mandatory form but Shah, J. who constituted a bench in that case did not agree with Beaman, J. in this view. However, in a later Division Bench judgment in Champsey Bhimji &amp; Co. v. Jamna Flour Mills Co. Ltd. [(1914) 16 Bom LR 566: 28 IC 121] two learned Judges of the Bombay High Court took a different view from Beaman, J. and this view is now the prevailing view in the Bombay High Court. In M. Kandaswami Chetty v. P. Subramania Chetty [ILR (1918) 41 Mad 208: 1917 MWN 501: 41 IC 384] , a Division Bench of Madras High Court held that courts in India have the power by virtue of Order XXXIX Rule 2 of the Code of Civil Procedure to issue temporary injunctions in a mandatory form and differed from Beaman J.\'s view accepting the view in Champsey Bhimji &amp; Co. v. Jamna Flour Mills Co. [(1914) 16 Bom LR 566: 28 IC 121] In Israil v. Shamser Rahman [ILR (1914) 41 Cal 436: 18 CWN 176] , it was held that the High Court was competent to issue an interim injunction in a mandatory form. It was further held in this case that in granting an interim injunction what the court had to determine was whether there was a fair and substantial question to be decided as to what the rights of the parties were and whether the nature and difficulty of the questions was such that it was proper that the injunction should be granted until the time for deciding them should arrive. It was further held that the court should consider as to where the balance of convenience lies and whether it is desirable that the status quo should be maintained. While accepting that it is not possible to say that in no circumstances will the courts in India have any jurisdiction to issue an ad interim injunction of a mandatory character, in Nandan Pictures Ltd. v. Art Pictures Ltd. [AIR 1956 Cal 428] , a Division Bench was of the view that if the mandatory injunction is granted at all on an interlocutory application it is granted only to restore the status quo and not granted to establish a new state of things differing from the state which existed at the date when the suit was instituted.<br>16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. <b style=\"background-color: rgb(255, 255, 0);\">G</b><b style=\"background-color: rgb(255, 255, 0);\">enerally stated these guidelines are:<br>(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.<br>(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.<br>(3) The balance of convenience is in favour of the one seeking such relief.</b><br>17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.</h4><p><br></p>', 'b92429282285a8dd7e4bf20bf8109714.jpg', 'bd1899d714b0120bba4abf277d31027e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1990-02-13', 1, '', '', '2021-05-24 19:30:13', '2021-05-24 19:30:13');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(772, 'uC8D0gKvjSlHOB4HzUSXQlIZu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Important judgments on Temporary Injunction delivered by the Supreme Court and various High Courts in 2020-2021.   ', '<h4><b style=\"background-color: rgb(255, 255, 0);\">I. Seema Arshad Zaheer v. Municipal Corpn. of Greater Mumbai. Supreme Court. Special Leave Petition 9470 of 2005 decided on 5 May 2006. Reported in (2006) 5 SCC 282.  </b><br>30. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff: (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff\'s rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiff\'s rights is compared with or weighed against the need for protection of the defendant\'s rights or likely infringement of the defendant\'s rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff\'s conduct is free from blame and he approaches the court with clean hands.<br>31. It is true that in cases relating to orders for demolition of buildings, irreparable loss may occur if the structure is demolished even before trial, and an opportunity to establish by evidence that the structure was authorised and not illegal. In such cases, where prima facie case is made out, the balance of convenience automatically tilts in favour of the plaintiff and a temporary injunction will be issued to preserve status quo. But where the plaintiffs do not make out a prima facie case for grant of an injunction and the documents produced clearly show that the structures are unauthorised, the court may not grant a temporary injunction merely on the ground of sympathy or hardship. To grant a temporary injunction, where the structure is clearly unauthorised and the final order passed by the Commissioner (of the Corporation) after considering the entire material directing demolition, is not shown to suffer from any infirmity, would be to encourage and perpetuate an illegality. We may refer to the following observations of this Court in M.I. Builders (P) Ltd. v. Radhey Shyam Sahu [(1999) 6 SCC 464] made in a different context: (SCC p. 529, para 73)<br>“This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles.”<br><b><span style=\"background-color: rgb(255, 255, 0);\">II. Anand Prasad Agarwalla v. Tarkeshwar Prasad. Supreme Court. Reported in (2001) 5 SCC 568.</span>  </b> <br>6. It may not be appropriate for any court to hold a mini-trial at the stage of grant of temporary injunction. As noticed by the Division Bench that there are two documents which indicated that there was prima facie case to be investigated. Unless the sale certificate is set aside or declared to be a nullity, the same has legal validity and force. It cannot be said that no right could be derived from such certificate. Secondly, when the contesting respondents were in possession as evidenced by the record of rights, it cannot be said that such possession is by a trespasser. The claim of the contesting respondents is in their own right. The decisions referred to by the learned counsel for the appellant are in the context of there being no dispute as to ownership of the land and the possession was admittedly with a stranger and hence temporary injunction is not permissible. Therefore, we are of the view that the Division Bench has very correctly appreciated the matter and come to the conclusion in favour of the respondents. In these circumstances, we dismiss these appeals. We may notice that the time-bound directions issued by the Division Bench will have to be adhered to strictly by the parties concerned and the suits should be disposed of at an early date but not later than six months from the date of the communication of this order.<br><b style=\"background-color: rgb(255, 255, 0);\">III. Commissioner State Taxes and Another vs Zaffar Abass Din. Jammu and Kashmir High Court. CM(M) No. 44/2020, CM No. 2075/2020 and CM No. 2076/2020. Decided on April 20, 2021. Reported in 2021 SCC OnLine J&K 287</b><br>11. Law is settled that power to grant injunction is extra ordinary in nature and it can be exercised cautiously and with circumspection. A party is not entitled to an interim relief as a matter of right. Grant of injunction is discretion of the court and such discretion has to be exercised in favour of the plaintiff only if the court is satisfied that unless the defendant is restrained by an order of injunction, irreparable loss or damage will be caused to the plaintiff.<br>12. The court grants injunction to meet the ends of justice. Power to grant injunction is equitable. Being an equitable relief, before deciding an application for interim relief, a court of equity would exercise discretionary power in granting temporary injunction normally applying three golden principles viz:—<br>i. Whether plaintiff-respondent herein has a prima facie case;<br>ii. Whether the balance of convenience is in his favour; &<br>iii. Whether he would suffer the irreparable injury if his prayer for injunction is disallowed.<br>13. The aforesaid three principles described as three pillars on which foundation of every order of injunction rests are of extreme importance.<br>14. Law is also settled that all the three aforesaid principles must co-exist i.e all of them must be present. If one or more are not there, no interim injunction can be granted. All the three principles in law are required to be examined independently and not interdependently.<br>15. A reference in regard to above to the judgment of Apex court passed as Best Seller Retail (India) Pvt. Ltd. v. Aditya Birla Nuvo Ltd., reported in (2012) 6 SCC 792 : AIR 2012 SC 2448, would be advantageous and appropriate herein wherein at para 14 following has been noticed and observed. Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable. In Dalpat Kumar v. Prahlad Singh ((1992) 1 SCC 719) this Court held : Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages.<br><b style=\"background-color: rgb(255, 255, 0);\">IV. Kavita Pramod Firke vs Anita Arun Dhake and Others. Bombay High Court. Writ Petition No. 6944 of 2020. Decided on January 8, 2021. Reported in 2021 SCC OnLine Bom 33: (2021) 2 Bom CR 44</b><br>7. It is well settled that before grant of injunction and considering prayer for discretionary relief, court must be satisfied that the party praying for relief has a prima facie case and balance of convenience is also in its favour. While granting injunction, if any, court is also required to ascertain whether refusal to grant injunction would cause irreparable loss to such party. Apart from aforesaid well established parameters/ingredients, conduct of a party seeking injunction is also of utmost importance. Reliance in this regard is placed upon judgment rendered by Hon\'ble Apex Court in case Gujarat Bottling Co. Ltd. v. The Coca Cola Co., (1995) 5 SCC 545 : AIR 1995 SC 2372. In case a party seeking injunction fails to make out any of the three ingredients, it would not be entitled to injunction. Phrases, “prima facie case”, “balance of convenience” and “irreparable loss”, have been beautifully interpreted/defined by Hon\'ble Apex Court in case Mahadeo Savlaram Shelke v. The Puna Municpal Corpn., (1995) 3 SCC 33 : JT (1995) 2 SC 504 relying upon its earlier judgment in Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719 has held as under:<br>“…the phrases “prima facie case”, “balance of convenience” and “irreparable loss” are not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations presented by men\'s ingenuity in given facts and circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends of justice. The court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused. The existence of prima fade right and infraction of the enjoyment of him property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The court further has to satisfy that non-interference by the court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury but means only that the Injury must be a material one, namely one that cannot be adequately compensated by way of damages. The balance of convenience must be in favour of granting injunction. The court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. The court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.”<br>8. Careful perusal of aforesaid judgment rendered by Hon\'ble Apex Court clearly suggests that existence of three basic ingredients i.e. prima facie case, balance of convenience and irreparable loss or injury is mandatory for passing an order of injunction under Order XXXIX, rules 1 and 2 CPC. It is also well settled by now that aforesaid thre ingredients are not only to exist but must coexist. In this regard, reliance is placed upon judgment rendered by Hon\'ble Apex Court in Best Sellers Retail (India) Private Ltd. v. Aditya Birla Nuvo Ld., (2012) 6 SCC 792, wherein, it has been held as under:<br>“29. Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable.<br>30. In Dalpat Kumar v. Prahlad Singh [(1992) 1 SCC 719] this Court held:<br>“Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages.”<br>36. To quote the words of Alderson, B. in The Attorney-General v. Hallett [153 ER 1316 : (1857) 16 M. & W.569]:<br>“I take the meaning of irreparable injury to be that which, if not prevented by injunction, cannot be afterwards compensated by any decree which the Court can pronounce in the result of the cause.”<br>9. Hon\'ble Apex Court in Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719, has categorically held that prima facie case is not to be confused with prima facie title, which requires to be established on evidence at the trial. Mere satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages. Since purpose of temporary injunction is to maintain status quo, court, while granting such relief, should be satisfied that prima facie case has been made out and balance of convenience is in favour of the plaintiff and refusal of injunction would cause irreparable loss and injury to him.<br>10. Since, in the case at hand, it is not in dispute that the parties to the lis are joint owners of suit land and by way of application at hand, injunction is being sought against one of the co-owners, it would be apt to deal with rights and liabilities of cosharers. In this regard, reliance is placed upon judgment rendered by a Division Bench, of Punjab and Haryana High Court in Sant Ram Nagina Ram vs Daya Ram Nagina Ram, AIR 1961 Punj 528, wherein it has been held as under:<br>(1) A co-owner has an interest in the whole property and also in every parcel of it.<br>(2) Possession of the joint property by one co-owner is in the eye of law, possession of all even if all but one are actually out of possession.<br>(3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.<br>(4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession, of a co-owner must not only be exclusive but also hostile to the knowledge of the other, as, when a co-owner openly asserts his own title and denies that of the other.<br>(5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.<br>(6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners.<br>(7) Where a co-owner is in possession of separate parcels under an arrangement consented to by the other co-owners, it is not open to any one to disturb the arrangement without the consent of others except by filing a suit for partition.”<br>11. A Coordinate Bench of this Court in Ashok Kapoor v. Murtu Devi, 2016 (1) Shim. LC 207, had an occasion to deal with the issue of injunction, wherein it, having taken note of various judgments rendered by Constitutional courts, concluded as under:<br>“46. On consideration of the various judicial pronouncements and on the basis of the dominant view taken in these decisions on the rights and liabilities of the co-sharers and their rights to raise construction to the exclusion of others, the following principles can conveniently be laid down:—<br>(i) a co-owner is not entitled to an injunction restraining another co-owner from exceeding his rights in the common property absolutely and simply because he is a co-owner unless any act of the person in possession of the property amounts to ouster prejudicial or adverse to the interest of the co-owner out of possession.<br>(ii) Mere making of construction or improvement of, in, the common property does not amount to ouster.<br>(iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property.<br>(iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction to prevent such act which is detrimental to his interest.<br>(v) before an injunction is issued, the plaintiff has to establish that he would sustain, by the act he complains of some injury which materially would affect his position or his enjoyment or an accustomed user of the joint property would be inconvenienced or interfered with. (vi) the question as to what relief should be granted is left to the discretion of the Court in the attending circumsta nces on the balance of convenience and in exercise of its discretion the Court will be guided by consideration of justice, equity and good conscience.<br>47. The discretion of the Court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff:—<br>(i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff\'s rights by issue of a temporary injunction;<br>(ii) when the need for protection of the plaintiff\'s rights is compared with or weighed against the need for protection of the defendant\'s right or likely infringement of the defendant\'s rights, the balance of convenience tilting in favour of the plaintiff; and<br>(iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted.<br>In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff\'s conduct is free from blame and he approaches the Court with clean hands.”<br>V. Sushila Pachhami vs Munindra Datt Saklani and another. Uttarakhand High Court. Appeal Against Order No. 283 of 2017, decided on January 7, 2021. 2021 SCC OnLine Utt 74<br>4. It is settled law that grant of temporary injunction is discretionary relief. Learned trial Court has exercised its discretion after considering all the relevant aspects by restraining the defendant No. 1 from raising any construction on the first floor of the property in dispute.<br>5. The cardinal principle for grant of temporary injunction was considered in Dalpat Kumar v. Prahlad Singh reported in (1992) 1 SCC 719, observing as follows:—<br>“5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is “a prima facie case” in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that noninterference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that “the balance of convenience” must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.”<br><span style=\"background-color: rgb(255, 255, 0);\"><b>VI. Shrivats Rathi and Another vs Shrivats Rathi and another. Delhi High Court. FAO(OS) (COMM) 119/2020, decided on 4 January 2021. Reported in 2021 SCC OnLine Del 2 : (2021) 85 PTC 160 (DB) : (2021) 277 DLT 323 (DB) : AIR 2021 Del 38.</b> </span><br>15. Interim relief of injunction is granted at a time when all facts have yet to be proved in trial. At the same time, the court will consider whether the party seeking such injunction pending trial has a “prima facie case” in its favour. If no prima facie case exists, in other words, the party seeking the interim injunction discloses no right in its favour, no interim injunction will be granted as it would not be justified. However, even where a party discloses a prima facie case, interim relief will not automatically follow. The party would have to establish that the absence of such relief would cause it “irreparable injury and damage” which would not be compensated by money and that the “balance of convenience” lies in its favour. The existence of all these three conditions alone will justify the grant of interim injunction. Reference in this regard can be made to Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719, as follows:—<br>“5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is “a prima facie case” in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that “the balance of convenience” must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.”<br>16. The observations made in Dorab Cawasji Warden v. Coomi Sorab Warden, (1990) 2 SCC 117 may be profitably reproduced here-<br>“16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:<br>(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.<br>(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.<br>(3) The balance of convenience is in favour of the one seeking such relief.”<br>17. These cardinal principles for grant of interim injunction have been reiterated in Hindustan Petroleum Corpn. Ltd. v. Sriman Narayan, (2002) 5 SCC 760, M. Gurudas v. Rasaranjan, (2006) 8 SCC 367 : AIR 2006 SC 3275, Best Sellers Retail (India)(P) Ltd. v. Aditya Birla Nuvo Ltd., (2012) 6 SCC 792 and Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Ltd., (2020) 5 SCC 410.<br><b style=\"background-color: rgb(255, 255, 0);\">VII. Babulal Marandi vs Speaker, Jharkhand Vidhan Sabha and another. Jharkhand High Court. W.P. (C) No. 3687 of 2020 decided on 17 December 2920. Reported in 2020 SCC OnLine Jhar 1017. </b><br>45. Grant of an interim relief with regard to the nature and extent thereof depends upon the facts and circumstances for each case as no straight jacket formula can be laid down.<br>46. Grant of temporary injunction has three basic principles; balance of convenience and irreparable injury which are required to be considered in a proper perspective in the fact and circumstances of a broad case. In Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd. reported in (1999) 7 SCC 1 : AIR 1999 SC 3105, the Hon\'ble Apex Court has delineated the other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunction as under:—<br>(i) Extent of damages being an adequate remedy;<br>(ii) Protect the plaintiff\'s interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor;<br>(iii) The Court while dealing with the matter ought not to ignore the factum of strength of one party\'s case being stronger than the others;<br>(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case, the relief being kept flexible.<br>(v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties\' case;<br>(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;<br>(vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.<br>47. In Dalpat Kumar v. Prahlad Singh reported in (1992) 1 SCC 719 : AIR 1993 SC 276, the Hon\'ble Apex Court has explained the scope of interim order i.e. The phrases “prima facie case”; “balance of convenience” and “irreparable loss” are not rhetoric phrases for incantation but words of width and elasticity to meet myriad situations presented by man\'s ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of Justice. The facts are eloquent and speak for themselves. It is well-nigh impossible to find from facts prima facie case and balance of convenience.<br>48. It is evident from the aforesaid principle laid down by Hon\'ble Apex Court that the court hearing the application or petition for grant of injunction is required to see extent of damages being an adequate remedy, protect the plaintiff\'s interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor, the Court while dealing with the matter ought not to ignore the factum of strength of one party\'s case being stronger than the others, no fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case, the relief being kept flexible, the issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties\' case, balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant and whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.<br><b style=\"background-color: rgb(255, 255, 0);\">VIII.  Sumit Kumar vs Avneet Patyal and Others. Himachal Pradesh High Court. CMPMO No. 544 of 2017<br>Decided on October 16, 2020. Reported in 2020 SCC OnLine HP 1994</b><br>6. While considering prayer for grant of injunction, court must be satisfied that the party praying for relief has a prima facie case and balance of convenience also lies in its favour. While considering prayer for injunction, if any, court is required to consider whether the refusal to grant injunction would cause irreparable loss to such a party. Besides above, conduct of the party seeking injunction is also of utmost importance, as has been held by Hon\'ble Apex Court in case Gujarat Bottling Co. Ltd. v. The Coca Cola Co., (1995) 5 SCC 545 : AIR 1995 SC 2372. In case a party seeking injunction fails to make out any of the aforesaid ingredients, it would not be entitled to injunction. Phrases, “prima facie case”, “balance of convenience” and “irreparable loss” has been aptly interpreted by Hon\'ble Apex Court in Mahadeo Savlaram Shelke v. The Puna Municpal Corpn., JT (1995) 2 SC 504, wherein Hon\'ble Apex Court relying upon its earlier judgment in Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719 has observed that the phrases “prima facie case”, “balance of convenience” and “irreparable loss” are not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations presented by men\'s ingenuity in given facts and circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends of justice. The court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused. The existence of prima facie right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The court further has to satisfy that non-interference by the court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury but means only that the Injury must be a material one, namely one that cannot be adequately compensated by way of damages. The balance of convenience must be in favour of granting injunction. The court while granting or refusing injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued.<br>7. This Court in case titled Roshan Lal v. Ratto, AIR 1977 HP 10 has also very aptly interpreted the expression “prima-facie case” and “other injury of any kind”. Having taken note of aforesaid judgments rendered by Hon\'ble Apex Court as well as this Court, this Court finds that whenever the Court is called upon to examine whether the plaintiff has prima-facie case in a suit for the purpose of determining whether a temporary injunction should be granted, it must perforce examine the merits of the case and it will be compelled to consider whether there is likelihood of the suit being decreed. Though depth of investigation which the Court must necessarily pursue for that purpose will vary with each case. The Expression “other injury of any kind” is very wide. It comprehends any kind of legal injury, and not necessarily an injury akin to a breach of contract.<br><b style=\"background-color: rgb(255, 255, 0);\">IX. Prem Lal vs Nand Lal. Himachal Pradesh High Court. CMPMO No. 196 of 2020. Decided on October 6, 2020. Reported in 2020 SCC OnLine HP 3958. </b><br>7. Factors and principles, which are to be borne in mind by a court, while considering application seeking injunction order, have been discussed in depth by this Court, while rendering judgment in case Suresh Kumar v. Pooja, CMPMO No. 331 of 2020, decided on 9.9.2020, relevant portion, whereof is reproduced herein below:<br>“3. Before adverting to the factual matrix of the case vis-à-vis prayer made in the petition at hand, this Court deems it proper to delve upon the factors and principles to be borne in mind by the court, while considering application seeking injunction order. It is well settled that before grant of injunction, court must be satisfied that the party praying for relief has a prima facie case and balance of convenience is in its favour. Besides above, while granting injunction, if any, court is also required to consider that whether the refusal to grant injunction would cause irreparable loss to such a party. Apart from aforesaid well established parameters/ingredients, conduct of the party seeking injunction is also of utmost importance, as has been held by Hon\'ble Apex Court in case Gujarat Bottling Co. Ltd. v. The Coca Cola Co., AIR 1995 2372. In case a party seeking injunction fails to make out any of the three ingredients, it would not be entitled to injunction. Phrases, “prima facie case”, “balance of convenience” and “irreparable loss”, have been beautifully interpreted/defined by Hon\'ble Apex Court in case Mahadeo Savlaram Shelke v. The Puna Municpal Corpn., JT (1995) 2 SC 504 relying upon its earlier judgment in Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719 has held as under:<br>“…the phrases “prima facie case”, “balance of convenience” and “irreparable loss” are not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations presented by men\'s ingenuity in given facts and circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends of justice. The court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused. The existence of prima fade right and infraction of the enjoyment of him property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The court further has to satisfy that non-interference by the court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury but means only that the Injury must be a material one, namely one that cannot be adequately compensated by way of damages. The balance of convenience must be in favour of granting injunction. The court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. The court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.””<br><b style=\"background-color: rgb(255, 255, 0);\">X. Vikram Singh vs Vinod Kumar. Himachal Pradesh High Court. CMPMO No. 485 of 2019. Decided on September 29, 2020. Reported in 2020 SCC OnLine HP 3859</b><br>7. It is well settled law that before grant of injunction, a court is required to satisfy itself that the party praying for the relief has a prima facie case and balance of convenience is also in its favour. Besides above, while granting injunction, court is also required to consider whether refusal to grant injunction would cause irreparable loss/injury to such party. While deciding balance of convenience, court is also required to weigh protection of the plaintiff\'s right against need for protection of defendant\'s right or infringement of right. Apart from aforesaid well established parameters/ingredients, conduct of the party seeking injunction is also of utmost important, as has been held by Hon\'ble Apex Court in case Gujarat Bottling Co. Ltd. v. The Coca Cola Co., AIR 1995 2372. In case a party seeking injunction fails to make out any of the three ingredients, it would not be entitled to injunction. Hon\'ble Apex Court in case Mahadeo Savlaram Shelke v. The Puna Municipal Corpn., (1995) 3 SCC 33 : JT (1995) 2 SC 504 relying upon its earlier judgment in Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719 has aptly interpreted phrases, “prima facie case”, “balance of convenience” and “irreparable loss”. Hon\'ble Apex Court has observed in the judgment (supra) that the phrases “prima facie case”, “balance of convenience” and “irreparable loss” are not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations presented by men\'s ingenuity in given facts and circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends of justice. The court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused. The existence of prima facie right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The court further has to satisfy that noninterference by the court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury but means only that the Injury must be a material one, namely one that cannot be adequately compensated by way of damages. The balance of convenience must be in favour of granting injunction. The court while granting or refusing injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued.<br>8. A Coordinate Bench of this Court in Ashok Kapoor v. Murtu Devi 2016 (1) Shim. LC 207, had an occasion to deal with the issue of injunction, wherein it, having taken note of various judgments rendered by Constitutional courts, concluded as under:<br>“47. The discretion of the Court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff:—<br>(i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff\'s rights by issue of a temporary injunction;<br>(ii) when the need for protection of the plaintiff\'s rights is compared with or weighed against the need for protection of the defendant\'s right or likely infringement of the defendant\'s rights, the balance of convenience tilting in favour of the plaintiff; and<br>(iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted.<br>In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff\'s conduct is free from blame and he approaches the Court with clean hands.”<br><b style=\"background-color: rgb(255, 255, 0);\">XI. Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Ltd., Supreme Court. Civil Appeal 9346 of 2009 decided on 6 January 2020. Reported in (2020) 5 SCC 410: (2020) 3 SCC (Civ) 305 : 2020 SCC OnLine SC 1. </b><br>15. Chapter VII, Section 36 of the Specific Relief Act, 1963 (hereinafter referred to as “the Act”) provides for grant of preventive relief. Section 37 provides that temporary injunction in a suit shall be regulated by the Code of Civil Procedure. The grant of relief in a suit for specific performance is itself a discretionary remedy. A plaintiff seeking temporary injunction in a suit for specific performance will therefore have to establish a strong prima facie case on basis of undisputed facts. The conduct of the plaintiff will also be a very relevant consideration for purposes of injunction. The discretion at this stage has to be exercised judiciously and not arbitrarily.<br>16. The cardinal principles for grant of temporary injunction were considered in Dalpat Kumar v. Prahlad Singh [Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719] , observing as follows : (SCC p. 721, para 5)<br>“5. … Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages. The third condition also is that “the balance of convenience” must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.”<br>23.Wander Ltd. [Wander Ltd. v. Antox (India) (P) Ltd., 1990 Supp SCC 727] prescribes a rule of prudence only. Much will depend on the facts of a case. It fell for consideration again in Gujarat Bottling Co. Ltd. v. Coca Cola Co. [Gujarat Bottling Co. Ltd. v. Coca Cola Co., (1995) 5 SCC 545] , observing as follows : (SCC p. 576, para 47)<br>“47. … Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest.”</h4><p><br></p>', 'bc8cb88df759530e73718b5769c14fdc.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-26', 1, '', '', '2021-05-26 05:06:21', '2021-05-26 05:07:44');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3039, 'h9tu5Qtejm4UF6cQKMJyKcwT9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land acquisition. Determination and enhancement of compensation by reference court being a judicial exercise, benefit of the same should be made available even to those who did not approach the Court. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Puttalingaiah Puttaiah and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 2542 of 2022 decided on 30 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2. The petitioners are the absolute owners of land bearing Sy.No.109/1, 109/2, 109/3, 132/1, 132/2 situate at Sunnaghatta Village, Kasaba Hobli, Channapattana taluk, Ramanagara District which came to be acquired under a Notification dated 21.03.1995 for the purpose of formation of Satellite Town under the Asia Development Project at Sunnaghatta Village, Kasaba Hobli, Channapattana taluk, Ramanagara District.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3. Certain of the land owners had approached the Addl. Civil Judge, Ramanagara by filing LAC No.92/2008 to award higher compensation. Accordingly, the said Court vide its Judgment dated 16.09.2009 awarded&nbsp;compensation of Rs.1,25,000/- with interest at 12% and 30% solatium.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>4. Petitioners No.1 to 3 and 5 to 8 after obtaining the orders in LAC No.92/2008 had filed an application under Section 28-A of the Land Acquisition Act, 1894 (‘LA Act’ for short) which was considered and necessary orders passed on 12.01.2016 enhancing the compensation similar to that granted in LAC No.92/2008. Though the said order had been passed in the year 2016, the enhanced compensation was not paid to the petitioners and as such the petitioners had approached this Court in W.P.No.2758/2020 and this Court had directed the respondents to make payment of the awarded amount, as also kept the entitlement for higher compensation open. Subsequent thereto, the respondents made payment of the enhanced compensation amount. Thereafter the petitioners submitted representations that&nbsp; in view of the delay&nbsp;of nearly five years in making payment of the compensation amount, even though the same has been awarded in the year 2016, the petitioners are entitled to enhanced compensation apart from the interest awarded. The representations all dated 7.1.2022 had been submitted to the respondent-authorities despite which no order has been passed thereon and as such, the petitioners are before this Court seeking for the aforesaid reliefs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>10. It is not in dispute that acquisition is of the year 1995 and that the initial compensation was fixed in the year 1997 and thereafter enhanced by Judgment passed in LAC No.92/2008 on 16.9.2009 subsequent thereto all the petitioners had filed applications for enhanced compensation under Section 28-A of the LA Act. Though the compensation in respect of petitioner No.1 to 3 and 5 to 8 was enhanced, the claim of petitioner No.4 and 9 was dismissed as being belated. Even the enhanced compensation which had been awarded in favour of petitioners No. 1 to 3 and 5 to 8 was not paid and as such they were constrained to knock on the doors of this Court by filing W.P.NO.2758/2020 seeking for justice, which came to be allowed.&nbsp; Despite the said order, the&nbsp;payment was not made. Hence, the petitioners were constrained to file contempt proceedings, it is while the said contempt petition was pending though notice was yet to be ordered, the respondents deposited the amount which in turn came to be paid to the petitioners.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>11. The aforesaid facts would indicate that the land which has been acquired in the year 1995, enhanced compensation has been paid to the petitioners in the year 2021 after a gap of more than 25 years with interest @ 9% per annum, while the state had the benefit of the property and made use thereof during the entire time. The only ground advanced by the respondent is that interest has been paid therefore nothing more is required to be done and as regards Petitioners 4 and 9 since the reference filed by them was bealted, there is no need for the respondents to enhance the compensation.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>15. This Court in MSA No. 200186/2019 dt. 19.11.2021 has held that irrespective of whether a person applies under Section 28A or not, it would be the duty of the State to issue notices to all land losers as and when compensation is enhanced and make payment of the enhanced compensation to those persons. The State cannot expect a land loser to follow up on litigation to obtain his just compensation and spend money toward litigation expenses or force a citizen to litigation.&nbsp; The State being a welfare State as enshrined under the Constitution of India, it is but required for the State to issue notices to all land losers as soon as compensation is enhanced as regards a particular land under the acquisition notification in a reference made under Section 18 of the Act. This not having been done in the present case, the State cannot be heard to contend that there was delay on part of the Petitioners 4 and 9 in filing the application under Section 28A and the said&nbsp;application being belated has rightly been dismissed or that there being no application there is no enhancement which is required to be made.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space: pre;\">	</span>In view of the above, I am of the considered opinion that respondents 4 and 9 are also entitled to enhanced compensation which the respondent No.3 –Assistant Commissioner ought to have considered&nbsp;and made payment of instead of dismissing their applications.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>21. There are numerous writ petitions which are filed before this court only for the reason that the state or an instrumentality of the state does not discharge its functions and it is only after orders are passed by this court that action is taken and in many instances only after filing of contempt proceedings. This kind of conduct on part of the state and its officers has given rise to unnecessary litigation, which would not have been required if the duty was discharged in accordance with law. In this day and age it is but required for the state and instrumentalities of the state to make use of the information technology tools which to keep track of all pending representations and applications and pass orders thereon within a reasonable time.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space: pre;\">	</span>A mandamus is issued directing respondent No.3 to consider the representation of the petitioners dt. 7.01.2022 and pass necessary&nbsp;orders in accordance with law within a period of two months from the date of receipt of copy of this order taking into consideration the losses that have been caused to the petitioners on account of the delay in payment of compensation;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>ii)<span style=\"white-space: pre;\">	</span>The respondents shall act on said representation without reference to any delay as held by this Court in MSA No.200186/2019 dt. 19.11.2021. Needless to say that the representation of petitioners 4 and 9 would also have to be considered on the same footing as that of other petitioners.</b></font></span></p>', '1bde0c91b664657a5e4f62edda5ff7e4.JPG', '05501514b36865110d2fd2d67147f895.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-06', 1, '', '', '2023-06-06 12:13:31', '2023-06-06 12:13:31'),
(774, 'jqeR8lN26Y9Xh2F0n8zHydU5y', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 does not apply to acquisitions under the Bangalore Development Authority Act. Karnataka High Court reiterates.  19 April 2021', '<h4>K.S.Meenakshi and others vs State of Karnataka, and others. </h4><h4>Writ Appeal 1274 of 2018 and connected matters decided on 19 April 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/382828/1/WA1274-18-19-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/382828/1/WA1274-18-19-04-2021.pdf </a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 3.<span style=\"white-space:pre\">	</span>In all the above writ petitions, the petitioners have sought for declaration that the acquisition of the land bearing Sy. No.172/2A of Bilekahalli village, Begur Hobli, Bengaluru South Taluk, acquired for the purpose of respondent no.2- Bengaluru Development Authority (BDA) for formation of Byrasandra Tavarekere Madiwala Layout (BTM Layout) under the preliminary notification dated 19.09.1977 and the final notification dated 07.02.1978 as lapsed in terms of Section<br>24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as \'Act of 2013\').<br>5. Subsequent to the Act of 2013 coming into force, the legal representatives of deceased Ramaiah had filed the present writ petition. The BDA has filed detailed statement of objections and additional statement of objections in the said writ petition contending that the acquisition proceedings have attained finality. <br>10. The learned Single Judge of this Court after hearing the arguments of the learned Counsel appearing in the writ petitions, has formulated the following points for consideration.<br>(i) Whether petitioners are entitled to relief under sub-section (2) of Section 24 of the 2013 Act. In other words, whether Section 24 applies to acquisition initiated under the provisions of BDA Act as held in the case of Chikkathayamma?<br>(ii) Keeping aside Point No.1 and assuming that the said Section applies to even acquisitions initiated under the BDA Act, whether petitioners are entitled to any relief?<br>(iii) Whether these petitions are hit by the principles of res judicata?<br>11. With regard to point no.(i), the learned Single Judge after taking into consideration Section 105 and the IV Schedule of the Act of 2013, has held in paragraphs 52, 53, 54 & 55 as under:</h4><h4 style=\"margin-left: 25px;\">\"52. Therefore, Parliament itself has listed the Central enactments to which 2013 Act does not apply. This is because Parliament was conscious of the fact that LA Act, 1894 was substituted by the 2013 Act, which is distinct and different from the other Central enactments enumerated in the Fourth Schedule to the 2013 Act or State enactments.<br>53. In the circumstances, it is concluded and held that Section 24 does not take within its scope nor does it apply to, acquisitions which have been initiated under the provisions<br>of any other enactment particularly, State enactment, such as, BDA Act. The said  Section is restricted to only those acquisitions which have been initiated under the provisions of the LA Act, 1894 only. Subject to compliance of the conditions mentioned under sub-section (2) of Section 24, the land owner would be entitled to the deeming provision regarding lapse of acquisition and not otherwise.<br>54. In the result, Point No.(i) is answered by holding that petitioners are not entitled to relief under sub-section (2) of Section 24 of the 2013 Act, as the acquisitions in these cases were initiated under the provisions of the BDA Act and not under the LA Act, 1894. It is further held, with respect,  that Chikkathayamma\'s and other similar decisions, having regard to the dicta of Hon\'ble<span style=\"white-space:pre\">	</span>Supreme<span style=\"white-space:pre\">	</span>Court in the case of Munithimmaiah, Bondy Ramaswamy, Offshore Holdings Private Limited, are not applicable as binding precedent in the present case. Further, most of the decisions referred to above have granted relief on the basis of factual determination as per sub-section 2 of Section   24   and  without   considering   the question of law which arises in these cases. Further, in some cases, the petitioners have themselves not pressed sub-section (2) of Section 24 of 2013 Act. Even then, relief has been granted on a determination made on facts and by holding that there has been abandonment of acquisition/lapse of acquisition.<br>55. Hence, these writ petitions are liable to be dismissed, as the petitioners are not entitled to relief under sub-section (2) of Section 24 of the 2013 Act as the said section does not apply to acquisition initiated under the provisions of BDA Act.\"</h4><h4 style=\"\">38. In our considered opinion, the learned Single Judge having rightly held that the provisions of the Act of 2013 would not be applicable to the acquisition made under the BDA Act, after taking into consideration the particulars of all the earlier proceedings initiated by the appellants herein, has rightly come to the conclusion that the challenge made by the parties to the acquisition proceedings has reached finality and since the award has been passed and possession has been taken in respect of the land in question, has rightly held that the appellants are not entitled for the reliefs prayed for by them in the writ petitions. The principles of res judicata is also rightly made applicable.</h4><h4>39. The Hon\'ble Apex Court in Indore Development Authority\'s case (supra) as discussed above, has held that Section 24(2) of the Act of 2013 would not be applicable to the cases where the award has been passed and possession of the land has been taken. In the said case, the Hon\'ble Supreme Court has also held that in respect of cases where the acquisition proceedings have reached finality and the challenge made to the acquisition proceedings has failed, such cases cannot be re-opened by invoking the provisions of the Act of 2013. The judgment of the Hon\'ble Apex Court in Indore Development Authority\'s case is squarely applicable to the facts of the present case and the impugned order passed<br>by the learned Single Judge is in consonance with the law laid down by the Hon\'ble Apex Court in the said case, and therefore, we find no merit in the writ appeals. Accordingly, the writ appeals are rejected.<br>40. Though it is a fit case to impose exemplary costs on the appellants, taking into consideration the prevailing Covid-19 pandemic situation, we refrain from imposing any costs.<br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br></h4><p><br></p>', 'af778732358a62a6f867a0d82bd83253.PNG', 'ef75c87d27e80df3fd799ad279e5da01.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-19', 1, '', '', '2021-05-27 04:15:29', '2021-05-27 04:16:41'),
(775, 'my1z4owa9OXv6uolqFxxMSMr4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Society running educational institution and receiving funds from the Government, though registered under the Societies Registration Act, is \'State\' within the meaning of Article 12 of the Constitution of India. Karnataka High Court. 24 May 2021 ', '<h4>Mr. P.B. Barman and others. vs Union of India and others. Writ Petition 22927 of 2019 decided on 24 May 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/382410/1/WP22927-19-24-05-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/382410/1/WP22927-19-24-05-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: Petitioners in all these petitions seek to challenge the orders dated 28.05.2018 and 05.03.2019, by which, the services of the petitioners is dispensed with on account of closure of the School run by the Border Security Force, Institute of Technology<br>8. On the other hand, learned Additional Solicitor General appearing on behalf of the respondent - Union of India would submit that the writ petitions are not maintainable as the 7th respondent is registered under the Societies Registration Act, 1860, against which no writ petition would lie as it is not a State under Article&nbsp; 12 of the Constitution of India.<br>10. I have given my anxious consideration to the submissions made by the learned counsel for&nbsp; the&nbsp; parties and perused the material on record in furtherance whereof the following points:<br><span style=\"background-color: rgb(255, 255, 0);\"><b>a. Whether the writ petition is maintainable against the 7th respondent/Society?</b></span><br>11. The 7th respondent - Institute is established, managed and operated by the Officers of the Border Security Force on&nbsp; its&nbsp; establishment&nbsp; on&nbsp; and&nbsp; from&nbsp; the&nbsp; year of its&nbsp; establishment&nbsp; –&nbsp; 1982.&nbsp; The&nbsp; objects&nbsp; and reasons was to promote the welfare&nbsp; of&nbsp; BSF&nbsp; employees&nbsp; and their wards by encouraging education in general, particularly in the field of Science, Medicine and Technology. The source of income to generate fund in terms of the Rules of the Administration of the Border Security Force Education&nbsp; Fund&nbsp; Two factors emerge from the afore-extracted Rules, one being the grants for education fund under which the 7th respondent is created, is received from the hands of the Central and State Governments. The other being the annual report of the working of the Fund should be sent to the Government through the Director General of the Border Security Force. These clauses lead to an unmistakable conclusion that&nbsp; the&nbsp; 7th respondent though is a Society registered under the Society Registration Act, it is funded and the funds are controlled either by the Central Government or the State Government as the case would be. The Officers of the Border Security Force act as the Secretary of the Fund and the expenditure of the Fund has to be placed before the Government. Thus, the Union of India has control over the 7th respondent - Institute. The Apex Court in plethora of judgments interpreting the constitution and the functioning of the Societies of the kind of the 7th respondent, has held that all of them would be a ‘State’ under the Article 12 of the Constitution of India and the writ in certain circumstances would be maintainable.<br>12. The argument to the contrary advanced by the learned Additional Solicitor General is unacceptable in the light of the narration rendered hereinabove.&nbsp; The view in this regard of mine is fortified by the judgment&nbsp; of this Court concerning the very same&nbsp; Institute rendered way back in the year 1996, in the case of Jitendra Kumar yadav vs Union of India and others. reported in ILR 1996 KAR 1679, wherein this Court answering the very question as to whether the 7th respondent is a ‘State’ under Article 12 of the Constitution has held as follows:</h4><h4 style=\"margin-left: 25px;\">“4. This is not a border&nbsp; line&nbsp; case because the law with regard to Article 12 is now well settled and to my mind a mere perusal of the prospectus of the BSF Institute of Technology will very clearly indicate that it does come within the overall supervision and control of the State. For purposes of ascertaining the term control, it does not necessarily mean that the Institute has to be set up by the Government or that it must be run by one of the Government Departments. There are numerous instances where the supervision and control is exercised indirectly and the present instance is a classic one.....A scrutiny of the Members of the Governing Council makes it very clear to my mind that for good reason the Government itself has constituted this body to exercise There can be no dispute about the fact that therefore the total supervision&nbsp; and&nbsp; control over this Institute vests with the State and therefore regardless of the legal set up of the Institute namely that it is registered as a Society, it would still come within&nbsp; the definition of Instrumentality of State and the present petition therefore cannot be&nbsp; rejected or dismissed on the ground of&nbsp; maintainability.”</h4><h4>Above all, the Institution is imparting education. Under certain circumstances a writ petition would be maintainable even against a private educational institution, as imparting&nbsp; education is a public duty.<br>13. In view of the preceding analysis, writ against the 7th respondent cannot but be held maintainable. I hold point No.1 against the respondents&nbsp; holding&nbsp; that the writ petitions against the Society/Institution as maintainable.<br>&nbsp;<br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br></h4><p><br></p>', '6b0882408b8c13195c09a2a9de9d035e.jpg', '085f4e438b1e254c8094ad1c346d1e0d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-24', 1, '', '', '2021-05-27 05:06:43', '2021-05-27 05:08:55'),
(776, '0Eo4H74ZyVBnPi0n6xK9SIwxt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court cancels anticipatory bail granted to a Police Officer who raped the victim, who approached him to report theft of her laptop. Calls approach of the judge as casual in a serious sexual assault case. 24 May 2021', '<h4>Deepika vs State of Karnataka and others. </h4><h4>Writ Petition 2910 of 2021 decided on 24 May 2021.&nbsp;</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Judgment Link</span>: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/383131/1/WP2910-21-24-05-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/383131/1/WP2910-21-24-05-2021.pdf</a><br>This petition is filed under Articles 226 and 227 of Constitution of India read with Section 482 of Cr.P.C. by the petitioner, who is the party-in-person seeking the following reliefs:-<br>a) to quash the anticipatory bail granted to respondent No.6 in C.Misc.No.674/2020 dated 9.12.2020 by VI Additional District and Sessions Judge, DK, Mangaluru in Crime No.82/2020 filed by Dharmastala P.S. for the offence punishable under Sections 323 and 376 of IPS<br>34. It is the main contention of the petitioner that she had approached respondent No.6 in connection with theft of laptop. It is also not in dispute that the case has been registered in the month of August, 2020 in terms of Annexure-B on 09.08.2020. It is the allegation against respondent No.6 by the petitioner that he had taken her phone number and also that she was taken to the COD office. It is also her allegation that when he took her to his house, the house was locked and an attempt was made to rape her on the terrace of the house, but she did not allow him to do such act. Later, he promised to marry her. The records also disclose that both of them have traveled to Dharmastala in terms of Annexure-C1 on 09.11.2020. It is also important to note that a gold mangalya chain was also purchased on the very same day on 09.11.2020 in terms of Annexure-C.<br>35.It is also her allegation that when they reached Dharmastala, they booked a room at Gangotri, where he committed sexual act on her forcibly. Thereafter, they went to the temple to get married and in the temple, they demanded documentary proof, which respondent No.6 had not brought. Thereafter, they went to Kuthayaru temple and he insisted not to take any photographs. The complainant suspected the act of respondent No.6 and thereafter, they went to the police station. In the police station, she was subjected to torture for a period of 2 days. It is also the allegation that she was made to stay in the house of a woman constable and thereafter, took a separate accommodation in the lodge. It is also the&nbsp; specific allegation against the police of Dharmastala Police Station that they were hand in glove with&nbsp; respondent No.6. The complainant was subjected to torture and also records reveal that she was under the surveillance of the Dharmastala Police and later, she was dropped to her parental house in Bengaluru after 3 days.<br>36. It is clear that she was under the police surveillance and no opportunity was given to her to seek any help from any body and she was subjected to torture. The MLC report issued by the KIMS Hospital marked as Annexure-F discloses that she had sustained injuries when<br>40. It is also important to note that when the complaint has been received by the Investigating Officer, he was very much present in the police station. When the allegations are made against him that he has committed rape on her, respondent No.6 must have been arrested and produced before the Court. But he has not been arrested and no action has been taken against him. Instead, severe allegations are made against her, who was subjected for sexual act. When a heinous offence of rape has been alleged against respondent No.6, he was leftscot-free and also helped him in obtaining the anticipatory bail, which was taken after almost one month and till date, he has not been apprehended or arrested. The Investigating Officer, who conducted the investigation in this case has favoured respondent No.6. It is also clear that he discharged his duties on the behest of respondent No.6 and not discharged his duties when the victim lady was subjected to sexual act at the hands of respondent No.6. It is a classic example of how the police allow the accused person, who commits the heinous offence to go scot-free, instead of arresting him when he himself was available in the police station.&nbsp;<br>44.This Court would like to rely upon the judgment of the Apex Court in the case of Neeru Yadav v. State of Uttar Pradesh and Another reported in (2016) 15 SCC 422<br>46. Having perused the principles laid down in the judgment referred supra and when the powers are vested with the constitutional Courts and the victim was subjected to serious offence of sexual assault, that too, by a police officer, who abused his official powers and taken shelter after committing the offence and made used of the Police Department to suppress his acts and true facts and so also the police personnel, who are his friends/colleagues also assisted him in the serious offence of committing rape on her against her wishes and they did not come to&nbsp; the rescue of a woman, who was subjected to an heinous offence of sexual assault and when the true facts have been suppressed before the Court while obtaining an order of anticipatory bail, where also the Court failed to take note of the relevant factors which ought to have been taken into consideration while dealing with the application for bail, which has not been done and the Court also failed to take note of the fact that bail is founded on irrelevant considerations, indisputably, the Superior Court can set aside the order of grant of bail. Such a case belongs to a different category and is in a separate realm. The Court also while exercising the discretionary powers under Section 438 of Cr.P.C. with regard to the heinous offence under Section 376 of IPC failed to take note of the fact&nbsp; that accused, who indulged in such an act, is the police officer. The Court, without dwelling upon the factual aspects of the case and also not taking note of the fact that the offence is committed by a police officer, exercised its discretion and granted bail, that too, an anticipatory bail in a case where the ingredients of the under Section<br>376&nbsp; of&nbsp; IPC&nbsp; has&nbsp; been&nbsp; invoked&nbsp; against&nbsp; a&nbsp; police&nbsp; officer.<br>Hence, I am of the opinion that it is a fit case where this Court can exercise the powers in setting aside the anticipatory bail granted by the Trial Court, which has&nbsp; been passed without looking into the relevant factors which ought to have been taken into consideration while dealing with the application for bail.<br>49. Having considered the material available on record, I am of the opinion that it is a fit case to exercise the powers under Articles 226 and 227 of Constitution of India read with Section 482 of Cr.P.C. This Court has to come to the rescue of a woman, who was subjected to sexual harassment by the police officer when no steps are taken by the police officials from the lower level to the higher level, though the complaint is forwarded to the Home Minister as well as the Chief Minister. Merely because she lodged two complaints earlier against other persons, the same would not be a ground in coming to the conclusion that she is not having a good character and it cannot be said that no such incident of sexual harassment was taken place. The act of the police officials is nothing but allowing a person, that too, a police officer, who has committed a serious offence of sexual harassment to go scot-free. Except registering the case against the accused, the officers of the Police Department as stated supra helped the accused to escape from the clutches of law.&nbsp; The victim, who was subjected to all sorts of harassment though made an attempt to get the electronic records in proof of subjecting her for torture, that too, in the police station, nothing could be procured. It is very clear that the police officials have helped a person, who is a culprit.<br>54. In view<span style=\"white-space:pre\">	</span>of the<span style=\"white-space:pre\">	</span>discussion made above, I proceed to pass the following:-<br>ORDER<br>(i) The writ petition is hereby allowed.<br>(ii) The anticipatory bail granted in favour of respondent No.6 in C.Misc. No.674/2020 dated 19.12.2020 by VI Additional District and Sessions Judge, Dakshina Kannada, Mangaluru in Crime No.82/2020 for the offence punishable under Sections 323 and 376 of IPC is hereby quashed.<br>(iii) The Investigating Officer is directed to take the accused into custody and produce him before the concerned jurisdictional Court.<br><br><br><br></h4><p><br></p>', '21b26bd7d8db2f54fa977aeaa12b6ed5.jpg', '2aa59e05d10510bc74e48d5bfc4e3140.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-24', 1, '', '', '2021-05-27 20:46:15', '2021-05-28 00:26:23'),
(777, '2aCpDF53VTHLdy4sr02nYQM3u', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. AICTE Regulations are mandatorily applicable to degree level technical institutions. Retirement age is only as per the Regulations. Writ is maintainable to enforce the Regulations even against unaided college. Karnataka High Court. 24:5:2021', '<h4>Dr. G.R. Bharath Sai Kumar vs State of Karnatak and others. </h4><h4>Writ Petition 15421 of 2020 decided on 24 May 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/383222/1/WP15421-20-24-05-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/383222/1/WP15421-20-24-05-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: The petitioner in this writ petition calls in question the memo dated 03.12.2019 by which the petitioner is sought to be retired on attaining the age of superannuation by the fourth respondent/Siddaganga Institute of Technology (hereinafter referred to as the ‘Institute’ for short), contrary to the regulations of the AICTE.<br>3. This Court by an order dated 30.12.2020 granted an interim order of stay of retirement of the petitioner on the strength of which, the petitioner continues to be in employment  in the cadre of Professor even as on date. It is the Memo / communication seeking to retire the petitioner on  31.12.2020  that is called in question in this writ petition.<br>9.....the point that arises for my consideration   is “whether the petitioner is entitled to claim that his age of retirement should be 65 years in terms of the Regulations of the AICTE?”<br>11. AICTE Act was promulgated by the Government of India for a proper planning and coordinated development of technical education system throughout the country and also to regulate maintenance of norms and standards in technical education and other matters connected therewith. The  AICTE  Act came into effect from 23rd December 1987. Chapter III of the Act deals with powers and functions of the  Council.  <br>12. Section 23 of the Act empowers the Council to make Regulations and those Rules and  Regulations  are  formulated  by  the AICTE from time to time. Therefore, the Act, Rules and Regulations are statutes. The AICTE  from  time  to  time  has  notified Regulations on pay  scales,  service  conditions  and minimum qualifications for appointment of teachers and other academic staff by its maintenance of standards in technical  education – (Degree) Regulations and the one that is germane for consideration is what is notified by the AICTE on 1-03-2019 i.e., “AICTE Regulations on pay scales, service conditions and minimum qualifications for the appointment of teachers and other academic staff such as library, physical education and training & placement personnel in technical institutions and measures for the maintenance of standards in technical education - (Degree) Regulation, 2019.” <br>13. ..Regulation “2.12<span style=\"white-space:pre\">	</span>Age of Superannuation. The age of superannuation of all faculty members and Principals/Directors of institutions shall be 65 years. An extension of 5 years (till the attainment of 70 years of age) may be given to those faculty members who are physically fit, have written technical books, published papers and  has  average  360 feedback of more than 8 out of 10 indicating them being active during last 3 preceding years of service.”<br>A conjoint reading of both  the  Regulations  would  clearly indicate that the recruitment of staff in an Institute to  be  in  terms of the norms and standards is a condition precedent for grant of approval. This clearly depicts the  binding  nature  of  both the afore- quoted Regulations.<br><b style=\"background-color: rgb(255, 255, 0);\">13. The mandatory nature of the Regulations notified  by the AICTE applicable to degree level institutions is considered by the Apex Court in the case of Parshvanath Charitable Trust v.All India Council for Technical Education reported in (2013) 3 SCC 385<br>In terms of the afore-extracted judgment of the Apex Court it becomes unmistakably clear that AICTE Regulations notified by Government of India would have binding effect on the institutes  to whom the Regulations apply. </b><br>17.... There is no document  produced by  the Institute to demonstrate that they have adopted the Government order dated 26-07-2008 issued by the Government enhancing the age of retirement from 58 years to 60 years which related to Government servants and employees of aided educational institutions. Therefore, it cannot but be concluded that there  is vacuum in the  Service Rules insofar as it pertains    to age of retirement.<br>18. The contention of the learned Senior Counsel appearing for the 4th respondent that no direction can  be issued  to the 4th respondent as it is  not  an  aided  Educational  Institution is also unacceptable in the light  of the  judgment  of the Apex court in the case of Marwari Balika Vidyalaya v. Asha Srivastava reported in (2020) 14 SCC 449 <br>Long before the Apex Court rendered the afore-extracted judgment, maintainability of a writ petition against a Private Educational Institution was considered with regard to parity in pay scale and other service conditions in the case of K.Krishnamacharyulu v. Sri Venkateswara Hindu College of Engineering, reported in (1997) 3 SCC 571 Therefore, the contention of the learned Senior Counsel for the Institute with regard to maintainability of the writ petition  against the Institution deserves to be rejected in the light of the law laid down by the Apex Court that imparting education is a public function and writ petition would be maintainable.<br>19. It is not be mistaken that the petitioner is  seeking  a writ at the hands of this Court for a direction to the  4th  respondent to implement a Government order. The case of the petitioner is that he is entitled to continue up to the age of 65 years on the strength of the Regulations  of AICTE  which bind  the 4th respondent/Institute. It is, therefore, the writ petition would become maintainable even against the 4th respondent/Institute<br><b style=\"background-color: rgb(255, 255, 0);\">20...The Regulations of the  AICTE applicable to the case at hand are mandatory in nature  and do not leave any discretion to the degree level institutions to implement it or otherwise, as it is couched in such language that following mandate of the Regulations would be in consonance with the maintenance of minimum standards of teaching and appointment of faculties in all the degree level technical institutions. </b><br>(i) Writ Petition is allowed.<br>(ii) Impugned<span style=\"white-space:pre\">	</span>Communication/Memo<span style=\"white-space:pre\">	</span>dated 03.12.2019 issued  by  the  4th  respondent  insofar as it pertains to the petitioner stands obliterated.<br>(iii) The petitioner is entitled to continue in service till he attains the age of 65 years.<br>(iv) Petitioner is entitled to all the consequential benefits that would flow from quashing of the Communication/Memo dated 03.12.2019.<br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br></h4><p><br></p>', '8d1d24ddc3fed2e9fb3114706a948f86.jpg', '3bd1b3f93893612a5db889df1656101f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-24', 1, '', '', '2021-05-28 00:51:05', '2021-05-28 00:56:22'),
(778, 'UzKC7topOemiCdv9opXdl8pwc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Rape. Alleged bad character of a woman does not justify sexual assault on her. Karnataka High Court condemns the police machinery which tried to protect the rapist police officer. 24 May 2021', '<h4 style=\"margin-top: 10px; margin-bottom: 10px; line-height: 1.9 !important;\"><h4 style=\"margin-top:7.5pt;margin-right:0cm;margin-bottom:7.5pt;\r\nmargin-left:0cm;line-height:normal;mso-outline-level:4\">Deepika vs State of Karnataka and others.<br>Writ Petition 2910 of 2021 decided on 24 May 2021. <br>Judgment Link:\r\n<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/383131/1/WP2910-21-24-05-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/383131/1/WP2910-21-24-05-2021.pdf</a><br>This petition is filed under Articles 226 and 227 of Constitution of\r\nIndia read with Section 482 of Cr.P.C. by the petitioner, who is the\r\nparty-in-person seeking the following reliefs:-<br>a) to quash the anticipatory bail granted to respondent No.6 in\r\nC.Misc.No.674/2020 dated 9.12.2020 by VI Additional District and Sessions\r\nJudge, DK, Mangaluru in Crime No.82/2020 filed by Dharmastala P.S. for the\r\noffence punishable under Sections 323 and 376 of IPS<br>42. It is also the\r\nspecific allegations in the complaint that she was made to stay in the house of\r\na woman constable Smt.Radha and all of them have conspired together in taking\r\naway her clothes, which contains the Sperm of respondent No.6 when she was\r\nsubjected to sexual intercourse and also instructed her to take bath to destroy\r\nthe medical evidence. It has to be noted that though the complaint was given to\r\nthe Dy.S.P., Bantwal on 13.11.2020 itself, again she was called to the police\r\nstation on 14.11.2020. The main allegation against the police personnel is that\r\nshe was assaulted and she was forced to give statement before the Magistrate in\r\nthe line of their convenience. It is also the allegation that she was dragged\r\nand thereafter, dropped to her house.  When these allegations are made and\r\nwhen the document of the KIMS hospital shows that she was subjected to assault\r\nand threatened and when the same has been narrated by lodging complaint to the\r\npolice including IGP and DGP, none of them have taken any action when a woman\r\nmakes the complaint alleging the sexual abuse on her by the police officer and\r\ncausing torture, that too, in the police station. Instead of that they referred\r\nthe complaint to the Superintendent of Police. As I have already pointed out,\r\nSuperintendent of Police also conducted the investigation only by recording the\r\nstatement of the persons, who were there in the police station but not changed\r\nthe Investigating Officer. However comes to the conclusion that the complainant\r\nis having an habit of complaining against others. Merely because she has lodged\r\nthe complaint against persons at whose instance she was subjected to harassment\r\nand also that she was subjected to sexual harassment by taking advantage of \r\nthe loneliness of a woman, she cannot be branded as an habitual complainant. It\r\nis pertinent to note that when the petitioner was subjected to sexual\r\nharassment and she was assaulted, no medical evidence has been collected by the\r\nI.O. with regard to the assault and torture when the case was entrusted to the\r\nPolice Inspector-Sandesh. Hence, it is clear that the Police Inspector was also\r\nhand in glove with accused, who has committed an heinous offence of rape on a\r\nwoman. Instead of conducting the thorough investigation, a report was filed\r\nstating that the laptop which was stolen is a 12 year old laptop. <b style=\"background-color: rgb(255, 255, 0);\">All the\r\npolice machinery have come to the conclusion that she is having the bad\r\ncharacter. Even assuming for a moment that she  is having a bad character,\r\nwhether the person, who is obligated to protect the people, could abuse his\r\npowers. Respondent No.6 had accompanied the complainant to Dharmastala and in\r\nDharmastala, she was there in the police station for 3 days and managed all the\r\naffairs in the police station itself where he was present and no action was\r\ntaken against the said person, though he had committed a serious offence.\r\nMerely because respondent No.6 is suspended, it cannot be said that a fair\r\ninvestigation has been conducted by the police.</b><br><o:p> </o:p></h4><p class=\"MsoNormal\" style=\"margin-top:7.5pt;margin-right:0cm;margin-bottom:7.5pt;\r\nmargin-left:0cm;line-height:normal;mso-outline-level:4\"><o:p></o:p></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:7.5pt;margin-right:0cm;margin-bottom:7.5pt;\r\nmargin-left:0cm;line-height:normal;mso-outline-level:4\"><o:p></o:p></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:7.5pt;margin-right:0cm;margin-bottom:7.5pt;\r\nmargin-left:0cm;line-height:normal;mso-outline-level:4\"><o:p></o:p></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:7.5pt;margin-right:0cm;margin-bottom:7.5pt;\r\nmargin-left:0cm;line-height:normal;mso-outline-level:4\"><o:p></o:p></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:7.5pt;margin-right:0cm;margin-bottom:7.5pt;\r\nmargin-left:0cm;line-height:normal;mso-outline-level:4\"><o:p></o:p></p>\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:7.5pt;margin-right:0cm;margin-bottom:7.5pt;\r\nmargin-left:0cm;line-height:normal;mso-outline-level:4\"><o:p></o:p></p>\r\n\r\n</h4>', '7eea09169d1986e8a3c5394386c438eb.jpg', 'fe94e7fbd3e8653cf1ed6787478e62db.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-24', 1, '', '', '2021-05-28 04:40:25', '2021-05-28 04:41:11');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(779, 'm3jYQjL0DfgPTbakGtbmNgKsu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Code of Civil Procedure, 1908. Order XXIX Rule 1. Director of company can NOT institute a suit without board resolution or ratification. Temporary injunction can be refused on the ground of maintainability of the suit. Karnataka High Court. 27:5:2021', '<h4>C. Krishnaiah Chetty & Sons Private Limited vs Deepali Company Private Limited and others. </h4><h4>Commercial Appeal 61 of 2021 decided on 27 May 2021. </h4><h4>Justice Satish Chandra Sharma and Justice S. Vishwajith Shetty. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/383962/1/COMAP61-21-27-05-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/383962/1/COMAP61-21-27-05-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: The instant commercial appeal is filed by the appellant, who is the plaintiff before the trial court seeking to set aside the order dated 20th February 2021 passed by the LXXXII Addl.City Civil and Sessions Judge and Commercial Court, Bengaluru, on I.A.Nos.1 to 3 in Commercial O.S.No.306/2020<br>2. The appellant, a Private Limited Company had filed Commercial O.S.No.306/2020 before the trial court praying for a judgment and decree of perpetual injunction restraining the respondents and persons claiming through or under them from using the trademarks \"C.Krishniah Chetty Corp., C.Krishniah Chetty & Co., Chetty & Co. Chetty, C.Krishniah Chetty & Co.1869, Chetty & Co. 1869, Chetty 1869.”<br>15. The trial court vide the order impugned having answered all the points (against the platiniff) ...has also observed that the suit itself is not maintainable without resolution of Board of Directors of the Company delegating authority to file the suit and it has been made clear that such an observation about maintainability of the suit is made only for the purpose of deciding the applications.<br>17. Learned Senior Counsel for the appellant submitted that the present appeal is maintainable and is validly filed. He has relied upon the judgment of the High Court of Delhi in the case of Glaxo Group Ltd. and Another -vs- Sunlife Sciences Pvt.Ltd.2011(45) PTC 561 ((Del)<br>26. The question that arises for consideration in this appeal is:<br></h4><h4 style=\"margin-left: 25px;\">\"Whether, in the absence of the Board Resolution, can a Chief Financial Officer or any other Principal Officer of a Private Limited Company institute a suit/appeal or any other legal proceedings on behalf of the Company against its shareholders on the strength of Order XXIX Rule 1 of the Code of Civil Procedure, 1908?</h4><h4 style=\"\">Order XXIX Rule 1 CPC reads as follows:</h4><h4 style=\"margin-left: 25px;\">\"1. Subscription and verification of pleading.- In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case.\"</h4><h4 style=\"\">28. On the reading of said provision of law, it is very clear that <b style=\"background-color: rgb(255, 255, 0);\">Order XXIX Rule 1 CPC only defines the person who is authorised to sign or verify the pleadings on behalf of the Company and it does not authorise any person mentioned therein to institute suits or appeals on behalf of the Company. </b>The said provision of law comes into operation only after proceedings have been validly commenced and itself does not authorise a person to institute suits or any other legal proceedings. Defect in filing of a suit or appeal would go to the very root of the matter.<br>29. It is true that a suit cannot be thrown out at the inception or a party cannot be non-sued on the ground of technicalities but while considering an application for interim orders or interim injunctions, the court must prima facie satisfy itself that \"a triable case\" is prima facie made out by the party approaching the court. Each case has to be considered on the facts of the said case and merely for the reason that a suit cannot be thrown away at the inception level on the ground of technicalities, it does not give a right to a party to seek any interim orders or interim injunctions in such suits unless the party prima facie satisfies with regard to the maintainability of the suit. When the question of maintainability of a suit or any other legal proceedings is raised, which would go to the root of the matter, the same requires to be considered by the court for its prima facie satisfaction before proceeding further in the matter.<br>31. A Company duly incorporated and registered is a distinct and independent legal person and its assets are separate from its members, it can sue and be sued in its own name. The Company being a juristic person needs somebody to act on its behalf and manage the affairs of the Company. A reading of Section 291 of the Companies Act makes it clear that the Board of Directors have been given all the powers of the Company except those which are required to be exercised in the General Meeting of the Company.<br>33....In the present case, the dispute is admittedly interse between the two branches of a family, who are equal shareholders of the Company and the respondent Nos.2 and 3 being 50% shareholders of appellant Company have questioned the authority of the Chief Financial Officer of the Company to file the appeal in the absence of a Board Resolution duly authorising him.<br>37. The Hon\'ble Supreme Court in United Bank of India Vs. Naresh Kumar & others (1996) 6 SCC 660  has therefore stated that a suit filed on the strength of Order XXIX Rule 1 of CPC needs ratification which could be either express or implied.<br>38. Even in the case of Alcon Electronics Pvt.Ltd. -vs- Celem S.A.2015 (4) BomCR 107, it has been held that the defect, if any, in not passing any specific resolution authorizing the Director to file a suit on behalf of the Company against the defendant is a curable defect, which means such action needs to be ratified.<br>39. In the present case, the dispute is interse between the two branches of a family holding equal shareholdings in the Company. Though the defect in filing the suit or an appeal in the absence of a Board Resolution by a Company is a curable defect, which can be cured by a express or implied ratification by a Board Resolution, such an eventuality is completely ruled out in the present case having regard to the fact that the present case has been initiated by the Company by its Chief Financial Officer against 50% shareholders of the Company. Therefore, since the possibilities of a ratification being not there, the defect in instituting the suit or appeal for want of Board Resolution of the Company cannot be said to be a curable defect in the present case. <br>41. In none of the judgments relied upon by the appellant, it has been held that without there being a ratification by the Company, solely on the basis of Order XXIX Rule 1 of CPC, a suit can be instituted by a Director or any other principal officer of the Company. Legal proceedings initiated to protect the interest of the Company against third party and a proceedings initiated on behalf of the Company against its own shareholders stand on altogether different footings.<br>42. In the case of M/s.Nibro Limited -vs- National Insurance Co.Ltd AIR 1991 DELHI 25, the suit was instituted by a Director of the Company without the Board Resolution of the Company authorizing him to institute the suit. Even after the suit was instituted, no resolution was passed by the Company ratifying the action. Though a plea was taken that on the strength of Order XXIX Rule 1 of CPC, a suit could be maintained by the Director of the Company even in the absence of a Board Resolution, it was held that Order XXIX Rule 1 of CPC does not authorize persons mentioned therein to institute suit on behalf of the Corporation but only authorizes them to sign and verify the pleadings on behalf of the Corporation and unless a power to institute the suit is specifically conferred on a particular Director, by a resolution to the said effect, he has no authority to institute a suit on behalf of the Company. The judgment in Nibro Limited’s case has been confirmed by the Hon’ble Apex Court in the case of State Bank of Travancore -vs- Kingston Computers India Private Limited Bank  (2011) 11 SCC 524 and therefore,<b style=\"background-color: rgb(255, 255, 0);\"> it can be safely held that a suit or any other legal proceedings can be instituted by a Director or Officer of the Company only on the strength of Board Resolution by the Company to the said effect and in the absence of such a Board Resolution, if a suit or legal proceedings is instituted, then necessarily there has to be a resolution by the Company ratifying the defect, failing which the suit or legal proceedings cannot be maintained. Therefore, the question framed for consideration in this appeal is answered negatively.</b><br>43. In the present case, it is not in dispute that the Company has not authorized the Chief Financial Officer by passing a Board Resolution to institute the suit or appeal on behalf of the Company. In a suit or appeal, “a prima facie case” would depend upon the facts of the said case and in the present appeal having regard to the undisputed facts of the case, wherein equal shareholders of the Company have been fighting against each other, in the absence of a Board Resolution, the suit or appeal instituted by the Chief Financial Officer of the Company is definitely defective and therefore, there is no prima facie case made out for a trial in the suit and in the absence of the party making out a case for trial, the prayer made by the said party for grant of interim orders/interim injunctions in such a suit cannot be favoured.<br>46. Under the circumstances, we do not find any grounds to interfere with the order passed by the Trial Court.<br>Accordingly, the Commercial Appeal stands dismissed.<br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br></h4><p><br></p>', '14409cf24c4f64d84559463d05d5f7fc.png', 'e9b2e4de730fd152d7ecce6eba9783d2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-27', 1, '', '', '2021-05-28 20:52:15', '2021-05-28 20:57:30'),
(780, 'DMNcGLXHhKeIgXF4BZUDRX7tO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 197. Illegal detention and custodial torture of a wrong person by the Police driving victim to suicide attempt. Sanction is NOT required to prosecute the police personnel involved. Karnataka High Court. 24 May 2021 ', '<h4>S. Shivakumar and others vs The State of Karnataka and another. </h4><h4>Criminal Petition 996 of 2021 decided on 24 May 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/383136/1/CRLP996-21-24-05-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/383136/1/CRLP996-21-24-05-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: This petition is filed under Section 482 of Cr.P.C, praying this Court to quash the entire proceedings in S.C.No.145/2019 on the file of Principal District and Sessions Judge, Chickballapur for the offence punishable under Sections 167, 330, 342, 348, 307 read with Section 149 of IPC (arising out of C.C.No.572/2014 on the file of Additional JMFC, Chikkaballapur and grant such other reliefs as deem fit in the facts and circumstances of the case.<br>Complaint alleges custodial torture which led to attempt to commit suicide by the son of the 2nd respondent. <br>21. Having heard the learned counsel for the respective parties and also on perusal of the materials available on record, before appreciating the same, this Court would like to make it clear that this Court is exercising the powers under Section 482 of Cr.P.C. While exercising the powers under Section 482 of Cr.P.C., if this Court comes to a conclusion that it is a case of abuse of powers, which leads to miscarriage of justice, the Court can exercise the jurisdiction under Section 482 of Cr.P.C. and  the same also has to be exercised sparingly in order to prevent the abuse of process and miscarriage of justice. In the light of the scope of Section 482 of Cr.P.C., this Court has to evaluate the materials available on record.<br>22..It is not in dispute that the complainant’s son was in the illegal custody of these petitioners for a period of two days and also enquiry was conducted against them.<br>23. It is the main contention of the learned counsel for the complainant/respondent that the complainant’s son was subjected to physical assault by the petitioners herein. <br>26. (As per case law) ....every offence committed by a police officer does not attract Section 197 of Cr.P.C. read with Section 170 of KP Act. The protection given under Section 197 of Cr.P.C. read with Section 170 of KP Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act. An offence committed entirely outside the scope of the duty of the police officer, would certainly not requires sanction. In para No.73, it is observed  that to decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. It is further observed in para No.77 that it is well-settled that an application<br>under Section 482 of Cr.P.C. is maintainable to quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of process of Court. If, on the face of the complaint, the act alleged appears to have reasonable relationship with the official duty, where the criminal proceedings is apparently prompted by mala fides and instituted with ulterior motive, power under Section 482 of Cr.P.C. would have to be exercised to quash the proceedings, to prevent the abuse of process of Court.<br>27. In the light of the principles laid down in the judgment referred supra, this Court has to analyse the materials on record. I have already pointed out that the complainant’s son was detained in illegal custody for a period of 2 days is not in dispute and also he was summoned to enquire is also not in dispute. It is also to be noted that I have already pointed out  the medical evidence with regard to the fact that he was subjected to physical torture  It is also important to note that on account of said humiliation, he took the extreme step of committing suicide as he was tortured, assaulted and detained in illegal custody for a period of 2 days in the police station. It is also apparent prima facie on record that departmental enquiry was conducted and at the fist instance the report was given against these petitioners vide report dated 25.06.2010 and the same would prima facie discloses that the police had excesses their powers. It is also not in dispute that ultimately the son of the complainant was not arraigned as an accused in the said case. It is also not in dispute that the very complainant in the said chain snatching case, has not identified the son of the complainant and there are no criminal antecedents against him. When such being the case, the protection envisaged under Section 197 of Cr.P.C. or Section 170 of KP Act cannot be extended to the petitioners herein.<br>28. Learned Magistrate, in detail considered the statement of witnesses, who have been examined i.e., 7 in number and also while passing a detailed order, assigned the reasons. Learned Revisional Judge also examined the legal aspect and also the factual aspect of the case and passed a detailed reasoned order<br>31. Having taken note of the principles laid down in the judgments referred supra and also the documents relied upon by the learned counsel for the petitioners and so also the learned counsel appearing for the respondent No.2, it is clear that the son of the complainant was detained in the police custody for a period of two days illegally. He was not only detained but also subjected to physical torture, which is evident as per document Ex.P20 marked before the learned Magistrate. When the complainant’s son was subjected to humiliation, he took extreme step of committing suicide and immediately, he was taken to the hospital, and he took treatment for almost 10 days in different hospitals and his health was deteriorated and the same is evident from the document Ex.P28, which was marked before the learned Magistrate.<br>32. It is also important to note that it is not in dispute that the case has been registered against the unknown person, who snatched the chain. The petitioners herein are also not disputing the fact that the son of the complainant was secured to the police station. It is also important to note that he was not identified by the complainant in the chain snatching case and that he has not been arraigned in the case subsequent to the investigation also but he was in illegal custody of the petitioners herein and subjected him for physical torture. When an innocent person was taken to the police station without arresting him and detained illegally in the custody and that apart, he was subjected to torture, no criminal antecedents against him, the act of the police officers cannot be termed as the act done in connection with discharge of public duty as it is nothing but misuse of powers vested with the petitioners, who are the police officials. The Court also has to take note of the result of detaining an innocent person in the illegal custody and subjecting him for physical torture, which is not reasonably connected with the official duty. When such being the case, the protection as contended by the learned counsel for the petitioners cannot be extended and there cannot be quashing of any criminalprosecution against the petitioners herein for want of sanction. There is ample materials against the petitioners herein, which has been considered by the learned Magistrate and also the Revisional Court and both the Courts, while issuing the process and confirming the order of issuance of process, taken note of the question of fact as well as the question of law and passed a reasoned order. Hence, I do not find any merit in the petition to exercise the powers under Section 482 of Cr.P.C. in quashing the proceedings initiated against the petitioners herein.<br>33. In view of the discussions made above, I pass the following:<br>ORDER<br>The petition is hereby rejected.<br>In view of rejection of the main petition, I.A.No.1/2021 does not survive for consideration and the same stands disposed of.<br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br></h4><p><br></p>', '80c5e97f478072b9265db186b19ab068.jpg', '3415cd7cd25061e63e5dddb524ff37a6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-24', 1, '', '', '2021-05-29 03:58:28', '2021-05-29 04:04:05'),
(781, 'x2cQOF1h2HbGxCNnMJheqSGYA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Limitation for criminal prosecution. Date relevant is the date when criminal complaint is filed and not the date when Magistrate takes cognizance. Karnataka High Court reiterates. 24 May 2021', '<h4>M.C.Kumar and others vs The State of Karnataka and another. </h4><h4>Criminal Petition 5293 of 2020 decided on 24 May 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/383132/1/CRLP5293-20-24-05-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/383132/1/CRLP5293-20-24-05-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: This petition is filed under Section 482 of Cr.P.C, praying this Court to set aside the order dated 03.07.2018 passed by the XI Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.53027/2020 taking cognizance, registering case and ordering process to the petitioners for the offences punishable under Sections 427, 448, 143, 147 read with Section 34 of IPC and to quash the entire proceedings.<br>2. The factual matrix of the case is that respondent No.2 filed a complaint against the petitioners making the allegation that on 03.01.2017 these accused persons trespassed the house, caused damage to the house, threatened her and thrown out the vessels outside the house and hence she gave the complaint on the very same day. The police after receiving the complaint, acknowledged the complaint and again complaint was given on 22.02.2017 and the police have registered the case for the above offences and thereafter investigated the matter and filed the charge-sheet against the petitioners herein. The learned Magistrate after receiving the complaint, took the cognizance vide order dated 03.07.2020 and hence the petitioners are before this Court.<br><span style=\"background-color: rgb(255, 255, 0);\">3. The main contention of the petitioners before this Court is that the maximum punishment for the offences which have been invoked against the petitioners herein is two years and hence the learned Magistrate ought not to have taken the cognizance after three years and hence committed an error in taking the cognizance.</span> The learned counsel for the petitioners brought to the notice of this Court the relevant offences and also Section 468 of Cr.P.C. The learned counsel would contend that the incident was taken on 03.01.2017 and case was registered on 22.02.2017 and final report was filed on 30.06.2020 and cognizance was taken after lapse of three years. Hence, it requires interference of this Court.<br>14. The main fundamental question raised before this Court by the learned counsel for the petitioners is that taking of cognizance after three years of the incident is barred by limitation. The learned counsel for the petitioners relied upon several judgments in this regard and also it is an admitted fact that no application is filed under Section 473 of Cr.P.C. for condonation of delay. This Court would like to refer the Constitutional Bench judgment of the Apex Court in the case of Sarah Mathew vs Institute of Cardio Vascular Diseases and others. reported&nbsp; in&nbsp; (2014)&nbsp; 1&nbsp; SCC&nbsp; (Cri)&nbsp;721. This judgment is on the point which gives answers to the contentions of the learned counsel for the petitioners. The Apex elaborately discussed Sections 468, 469, 470, 473 and Chapter XXXVI and also Sections 466 to 473 of Cr.P.C.&nbsp; The Constitutional Bench held that date relevant for computation of period of limitation is the date when criminal complaint is filed or date of institution of prosecution/criminal proceedings, and not the date when a Court/Magistrate takes cognizance. It is also held that there has to be some amount of certainty or definiteness in matters of limitation relating to criminal offences. As taking cognizance is application of mind by the Magistrate to the suspected offence, a subjective element comes in. It would be unreasonable to take a view that delay caused by the Court in taking cognizance of a case could deny justice to a diligent complainant. Such an interpretation of Section 468 of Cr.P.C. would be unsustainable and would render it unconstitutional. Furthermore, an anomalous situation would arise if date of taking cognizance is considered to be relevant as cognizance may be taken by Magistrate after the limitation period though the complaint is filed within time. Hence, only harmonious construction which can be placed on Sections 468, 469 and 470 Cr.P.C. is that Magistrate can take cognizance of an offence only if the complaint in respect of it is filed/prosecution/criminal proceedings instituted within prescribed limitation period. Furthermore, complainant or prosecution are entitled to exclude such time as is legally excludable.</h4><h4>15. The Apex Court further held that “cognizance” is an act of the Court. The term “cognizance” has not been defined in Cr.P.C. That means taking of cognizance is application of mind&nbsp; or takes judicial notice of an offence with a view to initiating proceedings in respect of offence which is said to have been committed. It is further held that so far as the “heading” of Chapter XXXVI is concerned, it is well settled that “heading” or “title” prefixed to sections or group of sections have a limited role to play in the construction of statutes. They may be taken as very broad and general indicators or the nature of the subject-matter dealt with thereunder but they do not control the meaning of the sections if the meaning is otherwise ascertainable by reading the section in proper perspective along with other provisions. It is held that penal statutes must be strictly construed. There are, however, cases where the&nbsp; Supreme Court has having regard to the nature of the crimes involved, refused to adopt any narrow and pedantic, literal and lexical construction of the penal statutes. In this case, looking to the legislative intent, the provisions of Chapter XXXVI have been harmoniously construed so as to strike a balance between the right of the complainant and the right of the accused. Besides, Chapter XXXVI is part of the Criminal Procedure Code, which is a procedural law and it is well settled that procedural laws must be liberally construed to serve as handmaid of justice and not as its mistress. The Apex Court in detail discussed and held that date relevant for computation of period of limitation is the date when criminal complaint is filed or date of institution of prosecution/criminal proceedings, and not the date when a Court/Magistrate takes cognizance.<br>16. In view of the principles laid down in the Constitutional Bench judgment, the judgments relied upon by the learned counsel for the petitioners will not come to the aid of the petitioners, as contended by the learned counsel that taking of cognizance is barred by limitation.<br>18. In view of the discussions made above, I pass the following:<br>ORDER<br>The petition is dismissed.<br><br><br><br><br><br><br><br><br><br></h4><p><br></p>', '798860df0807dcb310152db0c7d90cc5.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-24', 1, '', '', '2021-05-29 18:28:53', '2021-05-29 18:30:06'),
(782, '3d3k99C3SWLV1qRXpvGT2I7DU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Protection of Women from Domestic Violence Act, 2005. Order granting temporary custody of child is appealable under Section 29. Criminal Petition under Section 482 Cr.P.C, is NOT maintainable. Karnataka High Court. 20 May 2021   ', '<h4>Oliver Menezes vs Serita Therese Mathias. </h4><h4>Criminal Petition 356 of 2019 decided on 20 May 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/384227/1/CRLP356-19-20-05-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/384227/1/CRLP356-19-20-05-2021.pdf</a></h4><h4>“Whether the order dated 10.01.2019 passed by the JMFC., II Court, Mangaluru, D.K. (for short ‘the&nbsp; trial&nbsp; Court’) in Criminal M.C.No.02/2019 and the entire proceedings in the said case amount to abuse of the process of the Court” is the question involved in this case.<br>5. The application was actually to grant ex-parte order. Since the husband appeared before the trial Court even before issuance of notice he was also heard in the matter.&nbsp;<br>6. The trial Court after hearing the parties, by the impugned order directed the husband to hand over the children to the custody of the wife pending disposal of the application on merits. Further the trial Court directed the jurisdictional police to procure the children from wherever they are and to restore them to the custody of wife.&nbsp;<br><span style=\"background-color: rgb(255, 255, 0);\">11. Having regard to the rival contentions, the first question that arises for consideration is about maintainability of the petition. The impugned order is purportedly passed under Sections 21 and 23 of the D.V.Act.</span><br>12. The reading of Section 21 makes it clear that the same has overriding effect on any other law. Therefore there is no merit in the contention that the temporary custody of the children could be dealt with only in the proceeding under the Indian Divorce Act or Guardians and Wards Act.<br>13. Section 29 of the D.V.Act states that there shall lie an appeal to the Court of the Session within 30 days from the date on which, the order made by the Magistrate is served on the aggrieved person or the respondent as the case may be, whichever is later. Since the word ‘shall’ is used in Section 29 any order passed by the Magistrate under the D.V.Act is appealble one. Section 29 does not provide for granting of an interim order is not an acceptable justification to the aggrieved party to rush to the High Court invoking Section 482 of Cr.P.C. bypassing Section 29. Such interpretation defeats the object of the Act and Section 29.<br>14. Further the Magistrate in the impugned order has clearly stated that an opportunity has to be given to&nbsp; the respondent to file objection. The restoration of custody under the impugned order is made pending disposal of the application on merits. The said application is still pending for hearing. Without pursuing the hearing of that application, the husband has filed this petition&nbsp; and litigating in this Court since last about three years. Had he sought adjudication of the application on merits before the trial Court itself, the matter could have been disposed of&nbsp; &nbsp;by this time.<br>21. The Domestic Violence Act is a special legislation enacted for the purpose of promoting the family relationship and institution of family. The act is an intermediatory between the civil laws like Guardians and Wards Act, Hindu Minority and Guardianship Act, Hindu Marriage Act etc., and the criminal laws like 361, 498-A, or such offences under the Indian Penal Code.<br>22. Apart from that, the trial Court has passed the impugned order for interim restoration of the children to&nbsp; the custody of the wife pending hearing of the interim application. Under such circumstances, the husband bypassing remedies under Sections 25 and 29 of the D.V.Act cannot resort to the proceedings under&nbsp; Section 482 of Cr.P.C.<br>26. Under the D.V.Act, the Magistrate has the powers to adjudicate upon the application filed by the aggrieved person for the relief’s under Sections 17 to 23 of the Act. The mere pendency of the matrimonial cases between the parties does not divest the Magistrate of the jurisdiction under those provisions of the D.V.Act. The said matrimonial cases between the parties&nbsp; are&nbsp; filed subsequent to filing of the application under Section 12 of the Act, before the trial Court.&nbsp;<br>27....This Court does find any merit in this case. Therefore, the petition is dismissed.<br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br></h4><p><br></p>', '110c3a35ed213a7d2724abcb916f6d9d.jpg', '9fbc474140fad408c85ff65017d6df98.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-20', 1, '', '', '2021-05-29 19:56:12', '2021-05-29 19:56:12'),
(783, 'Sq1quE3vSvWwg1b0GHQUEhwa7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka SC-ST PTCL Act. Question of delay in initiating proceedings does NOT arise if sale is challenged on the ground of fraud, forgery and impersonation which go to the root of the transaction. Karnataka High Court 19 May 2021', '<h4>Muniraju vs State of Karnataka and others. </h4><h4>Writ Petition 52945 of 2018 decided on 19 May 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/384247/1/WP52945-18-19-05-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/384247/1/WP52945-18-19-05-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 14.The contention of the 4th respondent that the application made by the petitioner before the Assistant Commissioner was required to be rejected on the ground of  delay and laches, in view of the decisions of the Apex Court in the cases of Nekkanti Rama Lakshmi Vs State of Karnataka and Another, reported in 2017 SCC Online SC 1862 and Vivek M. Hinduja and others Vs. M. Ashwatha and others, reported in 2018 (1) Kar. L.R. 176 (SC), requires to be rejected. <span style=\"background-color: rgb(255, 255, 0);\">This is because the petitioner herein has approached the Assistant Commissioner to declare the sale deed dated 24.03.2008 as null and void, on the ground that neither the petitioner nor his mother Smt. Venkatamma and/or her children have executed the said sale deed and neither have they  executed any power of attorney authorizing any person to sell the property or to seek permission from the government. </span>Therefore, this is not a case where the time for approaching the Assistant Commissioner could commence from the date of execution of the document. This is a case falling under Section 5(3) of the Act where a presumption shall be drawn that where any granted land is in the possession of a person, other than the original grantee or his legal heir, it shall be presumed, until the contrary is proved that, such person has acquired the land by a transfer which is null and void under the provisions of sub- section (1) of Section 4. Therefore, the burden is on the 4th respondent herein to prove that he has obtained prior permission from the government, in terms of Section 4(2) of the Act and that Smt. Venkatamma and her children, including the petitioner herein have executed the sale deed dated 24.03.2008 in his favour. <span style=\"background-color: rgb(255, 255, 0);\">The question of application of the ruling of the Apex Court regarding delay and laches would arise only if the 4th respondent is able to prove that the sale deed dated 24.03.2008 was legally executed by Smt. Venkatamma and her children, consequent to which the time starts running for the petitioner.</span><br>15. Consequently, the writ petition stands partly allowed. The impugned orders dated 19.12.2014, passed by the Assistant Commissioner and the order dated 05.09.2018, passed by the Special Deputy Commissioner are hereby quashed and set aside. The matter stands remanded to the Special Deputy Commissioner, for the purpose of ascertaining from the government as to whether it had granted permission to Smt.Venkatamma and her children to sell the land in question in favour of the 4th respondent herein. If the answer is negative, then the Special Deputy Commissioner is required to direct resumption of the land from the 4th respondent, to be restored in favour of the legal heirs of the original grantee. On facts, if the legal heirs of the original grantee have continued to be in physical possession of the lands, since they contend that they have not executed any sale deed in favour of the 4th respondent, even then, a formal order is required to be passed by the Deputy Commissioner to ensure that the sale deed in question is declared null and void and the revenue records are mutated in the name of the legal heirs of the original grantee<br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br></h4><p><br></p>', 'cf5e2135c8134f5a0ddb0a8a0ff01fb6.jpg', 'ed46121853a70862e1cf1dfef565824e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-19', 1, '', '', '2021-05-30 02:16:03', '2021-05-30 02:52:59'),
(784, 'ZoV6ivb6WXCVjoJgivFN5p5Xu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Complaint under Section 138 is not an Encyclopedia. The complainant is required to plead basic particulars to disclose commission of the offence. Karnataka High Court. 20 May 2021', '<h4>Moodalagiriyappa K.L. vs M/s. Sree Gokulam Chit and Finance Co. (P) Ltd. </h4><h4>Criminal Petition 6163 of 2017 and connected matters decided on 20 May 2021. </h4><h4>Judgment Link:<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/384246/1/CRLP6163-17-20-05-2021.pdf\" target=\"_blank\"> http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/384246/1/CRLP6163-17-20-05-2021.pdf</a></h4><h4>3. The petitioners are being prosecuted in the aforesaid criminal cases for the offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘the N.I. Act’) on the basis of the complaints filed by the respondent against them.<br>5. The respondent got issued statutory notices to the petitioners on 10.03.2017 calling upon them to pay the cheque amount or else to face the prosecution. The said notices were returned with the postal endorsement “addressee refused, hence returned to the sender”. Therefore, the respondent filed complaints against the petitioners before the trial Court seeking their prosecution for the offence punishable under Section 138 of the  N.I.Act. The learned Magistrate by order dated<br>28.04.2017 took cognizance of the offence and summoned the petitioners to face the prosecution.<br>6. The petitioners are seeking quashing of  the said proceedings under the above revision petitions on various grounds.<br>13.<span style=\"white-space:pre\">	</span>...it becomes  clear that the FIR/complaint is not an encyclopedia. Since the case related to the offence under Section 138 of the N.I.Act, the complainant was required to state  the following facts in the complaint:<br>i) The accused have issued the cheques in question towards discharge of their legal liability.<br>ii) The particulars of the cheque.<br>iii) The cheques were presented within the prescribed time and were dishonoured.<br>iv) The statutory notice was issued and that was not complied.<br>v) The complaint shall disclose that same is filed within the prescribed time.<br>Therefore, the complainant was not expected to narrate in the complaint the compliance of Sections 6, 7, 10, 32 and 33 of the Chit Funds Act, 1982 and Section 25  of the Madras Chit Funds Act, 1961, Rules 64 and 65 of the Chit Funds Rules.<br>14. In the cases on hand, there is no dispute regarding the dates of the presentation of the cheques, their dishonour, issuance of statutory notice and  compliance of the provisions of the N.I. Act with regard to the limitation. The petitioners do not even dispute that the cheques in question pertain to their account and they bear their signatures. They even do not dispute that the notices were issued to the address of their ordinary residence.<br>21. This Court does not find any merit in the contention that the complaints do not prima  facie make  out the ingredients of the offence punishable under Section 138 of the N.I. Act to continue the prosecution. Since the accused/petitioners have the right of defence in the trial, this Court is not persuaded to accept that the continuation of the proceedings on the basis of the complaints in question amount to abuse of the process of the Court or lead to failure of ends of justice.<br>22. Therefore, the petitions are dismissed. The trial Court shall dispose of the matters as expeditiously as possible uninfluenced by any of the observations made in this order.<br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br></h4><p><br></p>', '0cf18a20998876fc466b30f253412a5f.jpg', '1e242ae0dad282807bfc608a099d2c2d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-20', 1, '', '', '2021-05-30 03:38:49', '2021-05-30 03:40:21'),
(785, 'ZoVKvU0B6hb1ejbCDBv3kLI8j', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'IPC. Section 304-B. Soon before her death does not mean immediately before, rather prosecution has to show existence of a proximate and live link between the cruelty and the consequential death of the victim. Supreme Court. 28 May 2021', '<h4>Gurmeet Singh vs State of Karnataka. </h4><h4>Criminal Petition 1731 of 2010 decided of 28 May 2021</h4><h4>Chief Justice N.V.Ramana, Justice Surya Kant and Justice Aniruddha Bose. </h4><h4>Judgement Link: <a href=\"https://www.youtube.com/watch?v=6m90oSYBbXg\" target=\"_blank\">https://www.youtube.com/watch?v=6m90oSYBbXg</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 8. Heard the counsel appearing for both sides. Section 304-B,\r\nIPC, which defines and provides the punishment for dowry\r\ndeath, reads as under:</h4><h4>“304-B. Dowry death. —(1) Where the death\r\nof a woman is caused by any burns or bodily\r\ninjury or occurs otherwise than under\r\nnormal circumstances within seven years of\r\nher marriage and it is shown that soon\r\nbefore her death she was subjected to\r\ncruelty or harassment by her husband or\r\nany relative of her husband for, or in\r\nconnection with, any demand for dowry,\r\nsuch death shall be called ‘dowry death’, and\r\nsuch husband or relative shall be deemed to\r\nhave caused her death.\r\n</h4><h4>Explanation. —For the purpose of this subsection, ‘dowry’ shall have the same\r\nmeaning as in Section 2 of the Dowry\r\nProhibition Act, 1961 (28 of 1961).\r\n</h4><h4>(2) Whoever commits dowry death shall be\r\npunished with imprisonment for a term\r\nwhich shall not be less than seven years but\r\nwhich may extend to imprisonment for life.” </h4><h4>9. Section 304-B(1), IPC defines ‘dowry death’ of a woman. It provides that ‘dowry death’ is where death of a woman is caused by burning or bodily injuries or occurs otherwise than under normal circumstances, within seven years of marriage, and it is shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her<br>husband, in connection with demand for dowry. Further, Section 304-B(2), IPC provides punishment for the aforesaid offence. This Court, in the recent judgment of Satbir Singh v. State of Haryana, Criminal Appeal Nos. 1735-1736 of 2010 summarised the law under Section 304-B, IPC and Section 113B, Evidence Act as under:</h4><h4>“i. Section 304-B, IPC must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand.<br>ii. The prosecution must at first establish the existence of the necessary ingredients for constituting an offence under Section 304-B, IPC. Once these ingredients are satisfied, the rebuttable presumption of causality, provided under Section 113-B, Evidence Act operates against the accused.<br>iii. The phrase “soon before” as appearing in Section 304-B, IPC cannot be construed to mean ‘immediately before’. The prosecution must establish existence of “proximate and live link” between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives.<br>iv. Section 304-B, IPC does not take a pigeonhole approach in categorizing death as homicidal or suicidal or accidental. The reason for such non categorization is due to the fact that death occurring “otherwise than under normal circumstances” can, in cases,<br>be homicidal or suicidal or accidental.” </h4><h4>10. In the present case, admittedly, the marriage between the deceased and the accused-appellant took place on 23.11.2004, and the death of the deceased occurred in 2008 after she consumed poison in her matrimonial home. Therefore, the first two ingredients as to death under otherwise than ‘normal circumstances’ within seven years of marriage stand satisfied. </h4><h4>11. The next important ingredient which needs to established is the existence of dowry demand “soon before her death”. This Court in catena of judgments have held that, “soon before” cannot be interpreted to mean “immediately before”, rather the prosecution has to show that there existed a “proximate and live link” between the cruelty and the consequential death of the victim. [See Satbir Singh v. State of Haryana (supra); Kans Raj v. State of Punjab, (2000) 5 SCC 207; Rajinder Singh v. State of Punjab, (2015) 6 SCC 477].</h4><h4><br></h4>', 'ddc49837f27184e554c6407c80f76896.jpg', '889a287cdf62aec7801cb6000732a07a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-28', 1, '', '', '2021-05-31 00:57:50', '2021-05-31 01:04:29');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(786, 'QidAFrX6xddNHHbU7VfGwpjPN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 438 and 482. High Court can NOT grant protection from arrest to accused while rejecting the petition for anticipatory bail. Supreme Court.  28 May 2021', '<h4>Nathu Singh vs State Uttar Pradesh and others. </h4><h4>Criminal Appeal 522 of 2021 decided on 28 May 2021. </h4><h4>Chief Justice N.V.Ramana, Justice Surya Kant and Justice Aniruddha Bose.&nbsp;</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Judgment Link</span>:<a href=\"https://main.sci.gov.in/supremecourt/2021/5071/5071_2021_31_1503_28042_Judgement_28-May-2021.pdf\" target=\"_blank\"> https://main.sci.gov.in/supremecourt/2021/5071/5071_2021_31_1503_28042_Judgement_28-May-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 3. In&nbsp; &nbsp;both&nbsp; &nbsp;the&nbsp; &nbsp;impugned&nbsp; &nbsp;orders,&nbsp; &nbsp;the&nbsp; &nbsp;High&nbsp; &nbsp;Court&nbsp; &nbsp;of Judicature at&nbsp; Allahabad, while dismissing the anticipatory bail application of the respondent s­accused, granted them 90 days to surrender before the Trial Court to seek regular bail and granted them protection from coercive action for the said period. Aggrieved by the grant of such relief, the complainants in both the matters are currently in appeal before us.<br>4. The sole question to be answered by the Court in the present&nbsp; &nbsp;appeals&nbsp; relates&nbsp; &nbsp;to whether the&nbsp; High&nbsp; Court,&nbsp; while dismissing&nbsp; the&nbsp; anticipatory&nbsp; bail&nbsp; applications&nbsp; of the respondents, could have granted them protection from arrest.<br>12. The considerations on the basis of which the Court is to exercise&nbsp; &nbsp;its&nbsp; &nbsp;discretion&nbsp; &nbsp;to&nbsp; &nbsp;grant&nbsp; &nbsp;relief&nbsp; &nbsp;under&nbsp; &nbsp;Section&nbsp; &nbsp;438, Cr.P.C. have&nbsp; &nbsp;been&nbsp; &nbsp;decided&nbsp; &nbsp;by&nbsp; &nbsp;this&nbsp; &nbsp;Court&nbsp; &nbsp;in&nbsp; &nbsp;a&nbsp; &nbsp;catena&nbsp; &nbsp;of judgments and needs no restatement.<br>14. The Constitution Bench in&nbsp; Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1 has authoritatively held that when a Court grants anticipatory bail under Section 438, Cr.P.C., the same is ordinarily not limited to a fixed period and would subsist till the end of the trial. However, it was clarified by the Court that if the facts and circumstances so warranted, the Court could impose special conditions, including limiting the relief to a certain period.&nbsp;<br>15. It is therefore clear that a Court, be it a Sessions Court or a High Court, in certain special facts and circumstances may decide to grant anticipatory bail for a limited period of time. The Court must indicate its reasons for doing so, which would be assailable before a superior Court. To do so without giving reasons, would be contrary to the pronouncement of this Court in&nbsp; Sushila&nbsp; Aggarwal&nbsp; (supra). If the High Court had therefore decided to allow the anticipatory bail application of the respondents ­accused herein, albeit for a limited period of 90 days, the task before this Court would have been somewhat easier. We would only have had to assess the reasons assigned by the Court, if any, for the imposition of such special condition in terms of the judgment in Sushila Aggarwal (supra)<br>17. To determine whether the Court can pass such orders, it is necessary to first analyze the relevant provision, viz., Section 438, Cr.P.C.<br>18. The focus of Section 438, Cr.P.C., when read in its entirety, clearly relates to the grant of anticipatory bail by the Court. Section 438(1) explicitly lays down certain factors that need to be considered by the Court before granting the relief sought. Section 438(2) lays down the conditions that may be imposed by the Court while granting the relief. Section 438(3) dictates the consequences of the grant of relief under the Section.<br>21. When the proviso to Section 438(1), Cr.P.C. is analyzed in line with the above dictum, it is clear that the proviso does not create any rights or restrictions. Rather, the sole purpose of the proviso appears to be clarificatory in nature. It only restates,&nbsp; inter alia, the obvious proposition that unless an individual has obtained some protection from the Court, the police may arrest them. In line with the ruling in&nbsp; Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, the proviso cannot be read as constituting a bar on the power of the Court.&nbsp;<br>23. Without going into the question of whether Section 438, Cr.P.C. itself allows for such a power, as it is not necessary to undertake such an exercise in the present case, it is clear that when it comes to the High Court, such a power does exist.&nbsp; &nbsp;Section&nbsp; &nbsp;482, Cr.P.C&nbsp; explicitly recognizes the High Court’s inherent power to pass orders to secure the ends of justice. This provision reflects the reality that no law or rule can possibly account for the complexities of life, and the infinite range of circumstances that may arise in the future.&nbsp;<br>27. The impugned orders therefore do not withstand legal scrutiny. The resultant effect of the High Court’s orders is that neither are the respondents found entitled to pre­arrest bail, nor can they be arrested for a long duration. During the said duration they can roam freely without being apprehensive of coercive action. We are thus of the view that the High Court committed a grave error in passing such protection to the respondents­ accused. Such a direction by the High Court exceeds its judicial discretion and amounts to judicial largesse, which the Courts do not possess.<br><br><br><br></h4>', 'e30ed1b168bc78bbb0d71b6e1c33656c.PNG', 'bfc279bb4da864b32678a5c152e1345e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-28', 1, '', '', '2021-05-31 02:15:03', '2021-05-31 02:15:03'),
(787, '8dPDjhgy7Fbr11zfO0LdC7J46', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transfer of Property Act. Section 43. Feeding the grant by estoppel does NOT apply if the transferee knows that the transferor did not possess the title at the time of transfer. Karnataka High Court.', '<h4><b>Ashok v. Annapurna. </b></h4><h4><b>Regular Second Appeal 100238 of 2017 decided on 14 July 2017. </b></h4><h4><b>Justice Sreenivas Harish Kumar.<br><br>16. On considering the arguments advanced by the Learned Counsel for the appellant what can be gathered is that, for applicability of the Section 43 of the T.P. Act, the conduct of the transferor is immaterial even though he misrepresents to the transferee. The moment the transferee comes to know that his transferor has acquired good title that he did not have at the time of transfer, the transferee can seek protection under Section 43 of the T.P. Act. This argument at the same time gives rise to another point as to what is the position of the transferee, if he had the knowledge that his transferor did not have transferable interest.<br></b></h4><h4><b>17. Analysation of Section 43 of the T.P. Act gives a picture that when the transfer of immovable property takes place, the transferor should not have transferable interest. Yet he transfers the property fraudulently or erroneously making a representation that he has a transferable interest, and, if any time in future, the transferor acquires interest in the property, the transferor is estopped from taking a contrary stand against the interest of transferee who acted on that misrepresentation. In other words, this section protects the interest of transferee if he has been misled by the transferor in the guise of having a transferable interest. The only condition for seeking protection under Section 43 of the T.R. Act is contract between transferor and transferee must be in subsistence during the time when the former acquires the interest. But transferee cannot take protection under Section 43 of the T.P. Act if he enters into transaction knowing fully well that the transferor had no right or any kind of interest.<br></b></h4><h4><b>18. The Supreme Court in the case of Jumma Masjid Mercara v. Kodimaniandra Deviah [AIR 1962 SC 847] in the first instance makes a distinction between Section 6 and 43 of the T.P. Act. While holding that Section 6(a) of the T.P. Act prohibits transfer of certain kinds of interest, it has been held with reference to Section 43 of the T.P. Act that it deals with representations as to title made by a transferor who did not have title at the time of transfer and provides that the transfer shall fasten itself on the title which the transferor subsequently acquires. The Hon\'ble Supreme Court proceeded to hold further that it is only material to find out whether in fact the transferee has been misled. Para 18 of the said judgment is extracted as below:—<br>“This reasoning is open to the criticism that it ignores the principle underlying s. 43. That section embodies, as already stated, a rule of estoppel and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts on that representation. It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. It is to be noted that when the decision under consideration was given, the relevant words of s. 43 were, “where a person erroneously represents”, and now, as amended by Act 20 of 1929, they are “where a person fraudulently or erroneously represents”, and that emphasises that for the purpose of the section it matters not whether the transferor acts fraudulently or innocently in making the representation, and that what is material is that he did make representation and the transferee has acted on it. Where the transferee knew as a fact that the transferor did not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer. Section 43 would then have no application, and the transfer will fail under s.6(a). But where the transferee does act on the representation, there is no reason why he should not have the benefit of the equitable doctrine embodied in s. 43, however fraudulent the act of the transferor might have been.”<br></b></h4><h4><b><br><span style=\"background-color: rgb(255, 255, 0);\">19. Thus from the above judgment it is clear that if the transferee knows that the transferor did not possess the title at the time of transfer, the transferee cannot be said to have acted on it while taking a transfer. Section 43 of the T.P. Act will have no application and the transfer has to fail.</span><br></b></h4><h4><b>20. On behalf of the appellant, reliance was placed on another judgment of the Hon\'ble Supreme Court in the case of Hardev Singh v. Gurumail Singh (Dead) By Lrs. [(2007) 2 SCC 404] The facts in this case are that one Harachar an Singh transferred some properties in favour of his wife Udham Kaur in lieu of her maintenance pursuant to compromise entered between them. The wife claimed absolute interest by virtue of Section 14(1) of the Hindu Succession Act and she filed a suit to that effect. The Trial Court dismissed the suit, but the Appellate Court held that she had become absolute owner. During the pendency of this suit, the husband Haracharan Singh sold the land to one Gurumail Sing on 17.03.1982. The wife filed another suit challenging this sale stating that the transfer was hit by lis pendence. She died during the pendency of the second suit. Consequently properties devolved equally upon her husband and her son. In this background, protection under Section 41 and 43 of the T.P. Act was sought by the purchaser but at the same time son Hardev Singh claimed right on the basis of will executed by his mother. In these set of circumstances, the Hon\'ble Supreme Court held that the principle of feeding the grant by estoppel could be urged only against Haracharan Singh, the seller, and not against the appellant who failed to prove the Will. Therefore the entire appeal was dismissed. These facts make it very clear that at the time when Haracharan Singh sold the property, the purchaser Gurumail Sing did not know that his seller was not the absolute owner and it was the seller who might have represented that he had a transferable tide. After death of wife, Udham Kaur, Haracharan Singh became entitled to half share in the property and for this reason it was held by the Hon\'ble Supreme Court that subsequent acquisition of title by Haracharan Singh fed the title that he did not have at the time of transfer and gave protection to the purchaser under Section 43 of the T.P. Act.<br></b></h4><h4><b>21. The Counsel for respondents 1 to 5 has referred to a judgment of the Hon\'ble Supreme Court in the case of Jharu Rama Roy v. Kamajit Roy [2009 SAR (Civil) 313] in support of her arguments that the appellant cannot take shelter under Section 43 of the T.P. Act. The facts of this case disclose that at the time of execution of the sale deed, vendor\'s father was alive. Even though the purchaser was very much aware of this, in the sale deed it was mentioned that the father had expired. The parties were governed by Dayabhaga School of Hindu Law. The vendor entered into transaction when his father was alive and therefore, he did not have any right to execute the sale deed and consequently, the purchaser who knew that the father was very much alive at the time of execution of the sale deed could not claim protection under Section 43 of the T.P. Act. This ruling makes it very clear that if the transferee is aware of the fact that the transferor had no transferable interest on the date of transfer, he cannot put forward Section 43 of the T.P. Act for protecting his interest.<br></b></h4><h4><b>22. The Learned Counsel for respondent No. 13 has relied on another judgment of the Supreme Court in the case of Ram Pyare v. Rama Narain [(1985) 2 SCC 162 : AIR 1985 SC 694] . In this judgment, the Hon\'ble Supreme Court has clearly observed in para No. 4 as follows:—<br>“Itis immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. It is to be noted that when the decision under consideration was given, the relevant words of s. 43 were, “where a person erroneously represents” and now, as amended by Act 20 of 1929, they are “where a person fraudulently or erroneously represents”, and that emphasises that for the purpose of the section it matters not whether the transferor acted fraudulently or innocently in making the representation, and that what is material is that he did make a representation and the transferee has acted on it. Where the transferee knew as a fact that the transferor did not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer. S. 43 would then have no application and the transfer will fail under s. 6(a). But where the transferee does act on the representation, there is no reason why he should not have the benefit of the equitable doctrine embodied in S. 43, however, fraudulent the act of the transferor might have been.”<br></b></h4><h4><b>23. In the background of the principles laid down by the Hon\'ble Supreme Court in the above decisions, it has to be examined whether the appellant\'s interest under Section 43 of the T.P. Act is protected. The appellant says to have acquired the ownership rights under the sale deed dated: 14.08.1985 as per Ex. R-91. It was within the knowledge of the appellant and his transferors who are none other than his brother, sister-in-law and brother\'s son, that they were all in possession of the suit property only as lessees. The appellant may say that under Ex. R-91 he has acquired ownership rights. If he wants to say that he had acquired ownership rights, it should be his case that he was misled by his transferors erroneously or fraudulendy that they had ownership rights to be conveyed to him. At this juncture, it may be relevant to refer to some of the answers given by R.W. 1 in the cross-examination. He clearly admits the suggestions that the lease period came to an end on 31.08.1994, that after the death of his father, he and his brother, Mallikarjun, had only leasehold rights, that they continued to be in possession of the suit property on leasehold rights only. It is his another clear answer that on 14.08.1995, he knew very well that his brother, Mallikarjun, did not have ownership right. It can be further said that the transaction speaks very well that this appellant and his brother succeeded to the leasehold rights that they had on the suit property. The appellant is an Advocate. Therefore, he must be aware of the nature of right they had over the suit property. Even if Ex. R-91 is perused, in the beginning of the sale deed itself, it is clearly written as leasehold ( ) rights existing on a land at Bailahongal. Pursuant to Ex. R- 91, there came te be some changes in the revenue records which have been produced under Ex. P-7 (consisting of 26 sheets of property register extracts.) In this property register extract, there is an entry dated 29.08.1985 showing the transaction as deed of purchase of leasehold rights (  ). The names of lease holders are written as Mallikaijun and Ashok, and further it is written there that the entry with regard to the western side of the property should stand in the name of Ashok G Metagud i.e. the appellant. So these revenue entries make it very clear that the sale deed as per Ex. R-91 was nothing but sale of leasehold rights, which was with respondent No. 12. Actually, both the appellant and respondent No. 12 had leasehold rights and because of execution of Ex.R-91, the respondent No. 12 sold his ?rd interest in favour of his brother. If, according to the appellant, these entries were incorrectly made, he should have challenged the same before the appropriate authority. But he did not take any action. The Trial Court and the I Appellate Court have taken note of these aspects of the matter to arrive at a conclusion that what the appellant purchased was only leasehold rights. Therefore, if the appellant\'s right is examined in the light of aforesaid principles of law, it has to be stated that he cannot claim protection under Section 43 of the T.P. Act to assert that what was transferred to him under Ex. R-91 was absolute ownership and tide in respect of western side of suit property, more so, when he had the knowledge that his brother and brother\'s wife and son did not have ownership rights to be conveyed to him. Both the Courts below have correctly applied the law to deny the benefit of Section 43 of T.P. Act to the appellant. </b></h4><h4><b>Therefore, this point is answered in negative.</b></h4><p><br></p>', 'ef831318312092c40d65136c7b562f5b.JPG', 'fc6b61b53f60691059c01f80014ad4aa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-06', 1, '', '', '2021-05-31 22:45:36', '2023-02-06 09:07:59'),
(2635, 'phZahL9s02qmWkkQvhIBkgpJi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Existing Overseas Citizens of India cardholders are also eligible for admission against seats reserved exclusively for Indian Citizens. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Anushka Rengunthwar and others Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 891 of 2021 decided on 3 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A.S. Bopanna and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The petitioners in all these petitions are the Overseas\r\nCitizens of India card holders. They are all students who have\r\njust reached the full age or are below this age. All the\r\npetitioners are aspiring to become Doctors by pursuing the\r\nMBBS course by securing admission through NEET selection <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">process and thereafter the post-graduation as also the super\r\nspecialty in the field of medicine. Some of them are also\r\nseeking to pursue post-graduation and also a super specialty.\r\nFor the purpose of narration of facts, the averments as put\r\nforth in W.P.(C) No.891 of 2021 which was taken as the lead\r\ncase is noted. The petitioners contend that they have been\r\nputting in all efforts and were preparing to appear for the\r\nNEET-UG examinations based on the right which was\r\navailable to them under the notifications dated 11.04.2005\r\nand 05.01.2009. Through the said notifications, the Overseas\r\nCitizens of India (‘OCI’ for short) cardholders were given the\r\nright of parity with Non-Resident Indians (‘NRIs’ for short) in\r\nrespect of the facilities as notified, including in the field of\r\neducation, who in turn had the parity with Indian Citizens.\r\nThrough the notification dated 05.01.2009, the said right to\r\neducation in India was also extended further, to appear for the\r\nAll India Pre-Medical Test or such other tests to make them\r\neligible for admission in pursuance to the provisions\r\ncontained in the relevant acts. In view of such right being\r\nextended to the OCI Cardholders by respondent No.1 in\r\nexercise of the powers under Section 7B(1) of the Citizenship </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Act, 1955 (“Act 1955” for short), the petitioners were also\r\nassured of appearing for the NEET-UG exam so as to compete\r\nto secure a seat to pursue the medical course.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. A cumulative perusal of the three notifications of 2005,\r\n2007 and 2009 heavily relied on by the learned senior\r\ncounsel for the petitioners would certainly indicate that from\r\nthe stage of amendment to Act, 1955 through Section 7A to\r\n7D thereof and the notifications issued pursuant thereto,\r\nconferring rights under Section 7B(1) and such right being\r\nexpanded from stage to stage, it would indicate that based\r\non the need, progression was made in conferring better right\r\nto the Overseas Citizens of India who, except for the incident\r\nof their birth in a foreign country were in all other respects\r\nsimilarly placed as that of Indian citizens and the limited\r\nforeign affiliation of NRI and OCI Cardholders made them to\r\nbe compared with each other for parity. In fact, for the\r\npurpose of air fares and entry fee to places of interest,\r\nthey were given parity with Indian nationals. It is in that\r\nview contended that taking away such a right that was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">available in the changing social scenario would amount to\r\nretrogression when in fact better right should have been\r\nconferred.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>49. To put the matter in its context for better appreciation\r\nof the mischief caused by the impugned notification and the\r\nmanner in which it would irreversibly alter the situation, to\r\nwhich aspect there is non-application of mind by respondent\r\nNo.1, it would be appropriate to refer to the existing facts of\r\nan individual petitioner. To demonstrate this aspect we shall\r\ntake the details of the first petitioner in W.P.(C) No.891 of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2021 as an instance to demonstrate the case in point. From\r\nthe tabular statement supra, it is noted, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">As on the year of birth in 2003 the Citizenship Amendment\r\nAct, 2003 was brought in to introduce Section 7A of Act,\r\n1955 w.e.f. 06.12.2004. The said amendment was based on\r\nthe recommendations of a High-Level Committee on Indian\r\ndiaspora. The Government of India decided to register the\r\nPersons of Indian Origin (PIO) of a certain category as\r\nspecified in Section 7A of Act, 1955 as Overseas Citizens of\r\nIndia. The OCI scheme was introduced with the issue of\r\nnotification of 2005 which is in the background of the\r\ndemands for dual citizenship by the Indian diaspora and the\r\nconcept of dual citizenship is not recognized.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">50. Therefore it is evident that the object of providing the\r\nright in the year 2005 for issue of OCI cards was in\r\nresponse to the demand for dual citizenship and as such, as\r\nan alternative to dual citizenship which was not recognised,\r\nthe OCI card benefit was extended. If in that light, the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">details of the first petitioner taken note hereinabove is\r\nanalysed in that context, though the option of getting the\r\npetitioner No.1 registered as a citizen under Section 4 of Act,\r\n1955 by seeking citizenship by descent soon after her birth\r\nor even by registration of the citizenship as provided under\r\nSection 5 of Act, 1955, was available in the instant facts to\r\nher parents, when immediately after the birth of petitioner\r\nNo.1 the provision for issue of OCI cards was statutorily\r\nrecognised and under the notification the right to education\r\nwas also provided, the need for parents of petitioner No.1 to\r\nmake a choice to acquire the citizenship by descent or to\r\nrenounce the citizenship of the foreign country and seek\r\nregistration of the Citizenship of India did not arise to be\r\nmade, since as an alternative to dual citizenship the benefit\r\nhad been granted and was available to petitioner No.1 and\r\nthe entire future was planned on that basis and that\r\nsituation continued till the year 2021</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>53. In the above circumstance, keeping in view, the object\r\nwith which the Act, 1955 was amended so as to provide the\r\nbenefit to Overseas Citizen of India and in that context when\r\nrights were given to the OCI cardholders through the\r\nnotifications issued from time to time, based on which the\r\nOCI cardholders had adopted to the same and had done\r\nthings so as to position themselves for the future, the right\r\nwhich had accrued in such process could not have been\r\ntaken away in the present manner, which would act as a\r\n‘retroactive’ notification. Therefore, though the notification\r\nex-facie does not specify retrospective operation, since it\r\nretroactively destroys the rights which were available, it is\r\nto be ensured that such of those beneficiaries of the right\r\nshould not be affected by such notification. Though the rule\r\nagainst retrospective construction is not applicable to\r\nstatutes merely because a part of the requisite for its action <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is drawn from a time antecedent to its passing, in the\r\ninstant case the rights were conferred under the notification\r\nand such rights are being affected by subsequent\r\nnotification, which is detrimental and the same should be\r\navoided to that extent and be allowed to operate without\r\nsuch retroactivity.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>54. We note that it is not retrospective inasmuch as it does\r\nnot affect the OCI Cardholders who have participated in the\r\nselection process, have secured a seat and are either\r\nundergoing or completed the MBBS course or such other\r\nprofessional course. However, it will act as retroactive action\r\nto deny the right to persons who had such right which is not\r\nsustainable to that extent. The goal post is shifted when the\r\ngame is about to be over. Hence we are of the view that the\r\nretroactive operation resulting in retrospective consequences\r\nshould be set aside and such adverse consequences is to be\r\navoided.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">55. Therefore in the factual background of the issue\r\ninvolved, to sum up, it will have to be held that though the\r\nimpugned notification dated 04.03.2021 is based on a policy\r\nand in the exercise of the statutory power of a Sovereign </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">State, the provisions as contained therein shall apply\r\nprospectively only to persons who are born in a foreign\r\ncountry subsequent to 04.03.2021 i.e. the date of the\r\nnotification and who seek for a registration as OCI\r\ncardholder from that date since at that juncture the parents\r\nwould have a choice to either seek for citizenship by descent\r\nor to continue as a foreigner in the background of the\r\nsubsisting policy of the Sovereign State.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">56. In light of the above, it is held that the respondent No.1\r\nin furtherance of the policy of the Sovereign State has the\r\npower to pass appropriate notifications as contemplated\r\nunder Section 7B(1) of the Citizenship Act, 1955, to confer\r\nor alter the rights as provided for therein. However, when a\r\nconferred right is withdrawn, modified or altered, the\r\nprocess leading thereto should demonstrate application of\r\nmind, nexus to the object of such withdrawal or\r\nmodification and any such decision should be free of\r\narbitrariness. In that background, the impugned notification\r\ndated 04.03.2021 though competent under Section 7B(1) of\r\nAct, 1955 suffers from the vice of non-application of mind\r\nand despite being prospective, is in fact ‘retroactive’ taking </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">away the rights which were conferred also as a matter of\r\npolicy of the Sovereign State.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n57. Hence, the notification being sustainable prospectively,\r\nwe hereby declare that the impugned portion of the\r\nnotification which provides for supersession of the\r\nnotifications dated 11.04.2005, 05.01.2007 and 05.01.2009\r\nand the clause 4(ii), its proviso and Explanation (1) thereto\r\nshall operate prospectively in respect of OCI cardholders\r\nwho have secured the same subsequent to 04.03.2021.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">58. We further hold that the petitioners in all these\r\ncases and all other similarly placed OCI cardholders will\r\nbe entitled to the rights and privileges which had been\r\nconferred on them earlier to the notification dated\r\n04.03.2021 and could be availed by them\r\nnotwithstanding the exclusion carved out in the\r\nnotification dated 04.03.2021. The participation of the\r\npetitioners and similarly placed OCI cardholders in the\r\nselection process and the subsequent action based on </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the interim orders passed herein or elsewhere shall\r\nstand regularised.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>59. Notwithstanding the fact that we have held the\r\nimpugned notification dated 04.03.2021 to be valid with\r\nspecific prospective effect in view of the power available to\r\nrespondent No.1 under Section 7B(1) of Act, 1955, keeping\r\nin perspective the wide ramification it may have in future\r\nalso on the Indian diaspora and since it is claimed to be\r\nbased on the policy decision of the Sovereign State, we\r\nexpect that the same would be examined in the higher\r\nechelons of the Executive with reference to the rights\r\nalready created.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>60. In terms of the above, all these petitions/ appeals are\r\nallowed in part to the above extent with no order as to costs.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n61. Pending application, if any, stands disposed of.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f8bb7a8cdc8d849149c54754f5c7962a.jpeg', '313e7d4555a0ab9dfa0be124f7a33190.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-07', 1, '', '', '2023-02-06 12:22:17', '2023-02-07 07:12:58'),
(788, 'ioXpUEs5zLqzlzFZf8U0kK888', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transfer of Property Act. Section 43. Feeding the grant by estoppel does NOT apply where the transfer is forbidden by law or contrary to public policy or contrary to the provisions of a statute. Karnataka High Court. 17 March 2015', '<h4>Sharadamma v. R. Vishwanath<br>Regular First Appeal 248 of 2012 decided on 17 March 2015. Justice Anand Byrareddy. <br>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/52396/1/RFA248-12-17-03-2015.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/52396/1/RFA248-12-17-03-2015.pdf</a><br>Reported in: 2015 SCC OnLine Kar 8203 : ILR 2015 Kar 3353 : (2015) 4 KCCR 2962 at page 3365<br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 6. The primary contention of the Learned Counsel for the appellant is that even if it could be accepted that Ranoji Rao had no right to sell the suit property as on the date of the sale in favour of the first defendant, the circumstance that KHB has subsequently executed a sale deed in favour of the plaintiff in respect of the entire extent of the property covered under the lease-cum-sale deed, including the suit schedule property, as per registered sale deed dated 30.5.2003, the same would enure to the benefit of the first defendant under the doctrine of feeding the grant by estoppel and as embodied under Section 43 of the Transfer of Property Act, 1882 (Hereinafter referred to as ‘the TP Act’, for brevity). In this regard the Learned Counsel places reliance on the following authorities.<br>1. Ram Pyare v. Ram Narain [(1985) 2 SCC 162 : AIR 1985 SC 694]<br>2. Jharu Ram Roy v. Kamjit Roy [(2009) 4 SCC 60.]<br>3. Hardev Singh v. Gurmail Singh (Dead) By Lrs [(2007) 2 SCC 404.]<br>4. Syed Basheer Ahamed v. State of Karnataka [ILR 1994 KAR 159.]<br>5. Lakshmana Gowda v. State of Karnataka [1981 (1) KLJ 1]<br>6. Sri. Nipra Channebasava Deshikendra Swamigalu Matadhipathigalu v. C.P. Kaveerammaand [ILR 2008 KAR 805]<br>7. Renu Devi v. Mahendra Singh [(2003) 10 SCC 200]<br>7. On the other hand, the Learned Counsel for the respondent would seek to justify the judgment of the Trial Court and places reliance on the following authorities and seeks to point out that the authorities cited by the appellant cannot be pressed into service in the facts and circumstances of the present case.<br>1. Kartar Singh (Dead) By Lrs v. Harbans Kaur [(1994) 4 SCC 730]<br>2. N. Srinivasa Rao v. Special Court Under the A.P. Land Grabbing (Prohibition) Act [(2006) 4 SCC 214.]<br>3. Hardev Singh v. Gurmail Singh (Dead) By Lrs. (supra)<br>4. Jharu Ram Roy v. Kamjit Roy (supra)<br>5. NI. Pra. Channabasava D.S. Mathadhi-Patigalu Kannada Mutt v. C.P. Kaveeramma [(2009) 11 SCC 28] .<br>9….In the light of the above decisions, the settled legal position in the interpretation of the scope and applicability of Section 43 of the TP Act depending on the facts and circumstance of each given case, and the doctrine of feeding the grant by estoppel may be summarized thus:<br>i) The doctrine of feeding the estoppel envisages that, ‘where a grantor has purported to grant an interest in land which he did not at the time possess, but subsequently acquires, the benefit of his subsequent acquisition, goes automatically to the earlier grantee, or as it is usually expressed, feeds the estoppel.<br>ii) In order to get the benefit of the said provision, the conditions which must be satisfied are:<br>(1) the contract of transfer was made by a person who was competent to contract; and<br>(2) the contract would be subsisting at the time when a claim for recovery of the property is made.<br><b style=\"background-color: rgb(255, 255, 0);\">However, the provisions would have no application if the transfer was invalid as being forbidden by law or contrary to public policy, as envisaged under Section 23 of the Contract Act. Thus, no estoppel can be pleaded contrary to the provisions of a statute. The ‘rule of feeding the estoppel’ shall apply in absence thereof.</b><br>iii) For the application of Section 43 of the TP Act, two conditions must be satisfied. Firstly, that there is a fraudulent or erroneous representation made by the transferor to the transferee that he is authorised to transfer certain immovable property and in the purported exercise of authority, professed to transfer such property for consideration. Subsequently, when it is discovered that the transferor acquired an interest in the transferred property, at the option of the transferee, he is entitled to get the restitution of interest in property got by the transferor, provided the transferor acquires such interest in the property during which contract of transfer must subsist</h4><p><br></p>', 'd86f321899c6d325c0c14f76e62f6b31.jpg', 'd08f1098c23fbd5fd746e86fcb11429c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2015-03-17', 1, '', '', '2021-05-31 23:28:03', '2021-05-31 23:28:43'),
(789, 'w7sSuobsQR4eXT578jKYCJqzR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Educational Institutions. Government can only prevent commercialization. Institutions have complete autonomy to fix their fees. Government cannot indefinitely postpone collection of annual charges. Delhi High Court. 31 May 2021 ', '<h4>Action Committee Unaided Recognised Schools vs Directorate of Education. </h4><h4>Writ Petition (Civil) 7526 of 2020 decided on 31 May 2021. </h4><h4>Justice Jayant Nath.  </h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span><b>: 1. </b>This writ petition is filed by the petitioner seeking an appropriate writ/ \r\nwrit of certiorari to quash the orders dated 18.04.2020 and 28.08.2020 \r\npassed by the respondent in so far as it prevents private unaided recognized \r\nschools/members of the petitioner association from collecting a part of the \r\nfees i.e. Annual Charges and Development Fees even beyond the Lockdown \r\nperiod and deferring it till physical opening of the schools.<br><b>11.</b> It is the case of the petitioner that the impugned action of the \r\nrespondent seeking to curtail the rights of the private unaided recognized \r\nschools to fix their own fees and also to restrict the collection thereof to \r\ncertain heads/amounts is illegal and without any authority or jurisdiction. It \r\nis stressed that the Department of Education i.e. the respondent has limited \r\njurisdiction to regulate the fees, i.e. to prevent commercialization and \r\nprofiteering and that the fundamental rights of the private unaided educational institutions under Article 19(1)(g) of the Constitution cannot be \r\ntrampled upon in the present manner.<br><span style=\"background-color: rgb(255, 255, 0);\"> Judgment referred to:</span> Modern School vs. Union of India & Ors., 2004 (5) SCC \r\n583., Action Committee Un-aided Recognised \r\nPrivate Schools vs. Directorate of Education & Anr. 2019 SCC OnLine \r\nDel 7591, Ramjas School vs. Directorate of Education,\r\nMANU/DE/1331/2020, Association of Indian Schools & Anr. \r\nvs. State of Maharashtra, MANU/MH/0701/2020, Delhi Abhibhavak Mahasangh vs. Union of India & Ors, 1999(49) \r\nDRJ 766(DB), Abhibhavak Mahasangh vs. Union of India & Ors, 2002(62) DRJ \r\n818(DB), Indian School, Jodhpur & Anr. vs.State of Rajasthan & Ors., 2021 SCC OnLine SC 359, T.M.A. Pai Foundation and Ors. Vs. State of \r\nKarnataka & Ors., 2002 (8) SCC 481, Justice for All vs. Govt. of NCT of Delhi & Ors., 2016 \r\nSCC OnLine Del. 355, Union \r\nof India & Anr. vs. Jain Sabha, New Delhi & Anr, (1997) 1 SCC 164;\r\nT.M.A. Pai Foundation v. State of Karnataka(supra); Delhi Abhibhavak \r\nMahasangh vs. Union of India & Ors.(supra); Modern School vs. Union of \r\nIndia & Ors.(supra); P.A. Inamdar & Ors. vs. State of Maharashtra & \r\nOrs., (2005) 6 SCC 537; and Delhi Abhibhavak Mahasangh vs. Govt. of \r\nNCT of Delhi & Ors., 2011 SCC OnLine Del 3394, Islamic Academy\r\nof Education & Anr. vs. State of Karnataka & Ors., (2003) 6 SCC 697.<br><b>30.</b> What follows from the above judgments of the Supreme Court and of \r\nthis court is that the scope of power and authority of the DOE to interfere \r\nwith the fixation / collection of fees by unaided educational institutions is \r\nwell defined. The DOE does exercise control for the purpose of prevention \r\nof commercialisation of education by such unaided institutions only. It is to \r\nensure that a recognized unaided school does not indulge in collection of \r\ncapitation fees or profiteering. Generating a reasonable surplus to augment \r\nits facilities and for other such purposes is a legitimate act which cannot be \r\nfaulted with.<br><b> 31.</b> As noted above, the Supreme Court in the case of Islamic Academy\r\nof Education & Anr. vs. State of Karnataka & Ors., (2003) 6 SCC 697 in a \r\nconcurring judgment by Justice S.B. Sinha adopted with approval the \r\ndefinition of ‘profiteering’ as contained in Black’s Law Dictionary being \r\n“taking advantage of unusual or exceptional circumstances to make \r\nexcessive profits”.<br><span style=\"background-color: rgb(255, 255, 0);\"><b>32. Other than the above power of the respondent, the private unaided schools have complete autonomy in the matter of fixation of their fees. Such \r\nschools have the power to fix just school fees.</b></span><br><b>38.</b> ..The power of the respondent DOE is for \r\nprevention of commercialisation of education. Clearly in the absence of a \r\nfinding of commercialisation of education or exploitation the respondent \r\ncannot indefinitely cut down the established fees or restrain a said school \r\nfrom collecting a portion of the existing fees.<br><b>47</b>. The issue that arises is that the schools are not physically open, can it \r\nbe said that the expenses under the above heads are not being incurred by \r\nthe private unaided recognized schools? In my opinion, a bare perusal of the \r\nheads of expenses clearly demonstrates and shows that most of the expenses \r\nare not correlated or connected with the actual physical opening of the \r\nschools for the students. Expenses like rents, taxes, travelling, conveyance, \r\ninsurance charges, remuneration of auditors, repair and maintenance of \r\nbuilding and maintenance of equipment, furniture and fixture are all \r\nexpenses which will continue to be incurred by the schools irrespective of \r\nthe physical shut down. In case, the said repairs and expenses are not done, \r\nit is bound to cause damage to the building, infrastructure and functioning of \r\nthe schools. Further, it cannot be said that the school building is completely shut. \r\nThe building would remain functional for administrative reasons and even, \r\ndepending on facts and circumstances of the case, for conducting online \r\nclasses, etc.<br><b>50.</b> As noted, the private recognized unaided schools are clearly \r\ndependent only on the fees collected to cover their salary, establishment and \r\nall other expenditure on the schools. Any regulations or order which seek to \r\nrestrict or in-definitely postpone their powers to collect normal and usual \r\nfees as is sought to be done by the impugned orders is bound to create grave \r\nfinancial prejudice and harm to the schools.<br><b>51. </b>The respondent in the facts and circumstances has no power to \r\nindefinitely postpone the collection of Annual Charges and Development \r\nfees, as is sought to be done. The impugned acts are prejudicial to the said \r\nSchools and would cause an unreasonable restriction in their functioning.</h4>', 'd880b227f6d7b1eedb104911d646ca13.PNG', 'e8fe161aafbb42a2a5ed449d4b4b210d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-31', 1, '', '', '2021-06-01 02:26:35', '2021-06-01 02:27:52');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(790, 'X4iEbMksseVqQJv1vtIhS9h8B', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Judicial review. Look Out Circular issued by Bank against debtor in larger public interest and economic interest of the nation cannot be the subject matter of judicial scrutiny. National interest is paramount. Karnataka High Court. 12 May 2021', '<h4>Dr. Bavaguthuraghuram Shetty vs Bureau of Immigration and others. </h4><h4>Writ Appeal 315 of 2021 decided on 12 May 2021. </h4><h4>Justice Aravind Kumar and Justice Pradeep Singh Yerur. </h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Judgment Link</span>: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/384937/1/WA315-21-12-05-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/384937/1/WA315-21-12-05-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: This intra-court appeal is directed against the order dated 12.02.2021  passed  in  W.P.No.15032/2020 whereunder the look-out circular/communication dated 08.05.2020 and 18.07.2020 issued by respondent Nos.3 and 4 respectively preventing petitioner from traveling out of India and consequential endorsement dated 08.12.2020 (Annexure-A) issued by the first respondent came to be upheld and writ petition came to  be dismissed.<br>21. Though Sri.Mukul Rohatgi, learned Senior Counsel has vehemently contended that right to travel is  a fundamental right and the restriction imposed on the petitioner from leaving the territory of India, amounts to infringement of the rights guaranteed under Articles 14, 19 and 21 of the Constitution of India, looks attractive at first blush, is not so on deeper examination for reasons more than one. Firstly, the petitioner has not challenged the constitutional validity of the Official Memorandum (OMs) dated  27.10.2010,  05.12.2017,  19.07.2018, 19.09.2018, 04.10.2018, 12.10.2018  (Annexures-AA  to AE and Annexures-R1 and R2) whereunder it enables the authorities to impose restriction on a Indian citizen from leaving the territory of India. As such neither the Single Judge was required to examine the said issue nor we are inclined to delve upon this aspect.<br>23. It has also been held by the Hon\'ble Apex Court (per Hon\'ble the Chief Justice-Mr.Beg and per Hon\'ble Mr. Justice Kailasam) that a passport may be impounded without giving prior opportunity and subsequently hearing must be  provided.  Hence, petitioner cannot be heard to contend that his right of hearing has been taken away and thereby act of the respondents are hit by Article 14 of the Constitution.<br>25...it is needless to state that notwithstanding the conclusion arrived at by respondent Nos.3 and 4 for issuance of LOC against the petitioner, prayer of the petitioner  for revoking the same shall be considered independently and without being influenced by any conclusion already arrived by them and without being influenced by any observations made either by the learned Single Judge or by this Court.<br>26. In the instant case the cause for issuance of LOC against the petitioner has been indicated by  the  third respondent in its statement of objections vide paragraph 5 and extraction of the same would only burden this judgment and as such we desist from doing so. <br>28. By not intimating the petitioner about issuance of LOC would not infringe upon any of  the  rights of petitioner guaranteed under the Constitution of India. The OM dated 27.10.2010 (Annexure-AA) would clearly indicate that LOC can be issued subject to the guidelines prescribed therein.<br><b style=\"background-color: rgb(255, 255, 0);\">29. Thus, respondent  No.3  and  4  being empowered to issue the LOCs by virtue of OM dated 22.11.2018 and \"larger public interest\", which also governs the \"economic interests of India\" same have been issued, which cannot be the subject matter of judicial scrutiny inasmuch as, the subjective satisfaction arrived at by respondent Nos.3 and 4 based on objective assessment, being inconsonance with the extant OMs. </b> The Courts not having technical competence,  cannot sit  in the arm chair of the respondent Nos.3 and 4 to evaluate or ascertain whether such finding could have been arrived at. Even otherwise, the reasons which have been assigned to by the respondents in their statement of objections, defending the issuance of LOCs against the petitioner, cannot be said as either irrational or  no person of ordinary prudence would have arrived at a conclusion for issuance of LOCs against the petitioner. <br>33. It would be apt and appropriate to note that Courts exercising extraordinary jurisdiction, while examining the claim of a person who is alleged to have committed an economic offence, would not treat him with kid gloves. Non pendency of any criminal case, by itself would not be a ground on which the Look Out Notice/Circular not being issued. The extant circular in the instant case would clearly indicate  that if it appears  to the authorities based on inputs received  that departure of a person is detrimental to the bilateral relations with any country or to the strategic and/or economic interests of India or if such person if allowed to<br> leave the country, he may potentially indulge in an act of terrorism or offences against the State and/or that such departure ought not be permitted in the larger public interest at any given point of time, then in such circumstances his right to go abroad can be curtailed or restricted. <br>35...Thus, while considering the prayer for the Look Out Circular being quashed, which prohibits a person like the petitioner from going abroad or in other words, leaving the territory of India, the Courts will have to weigh the individual right visa-vis the interest of the Country. <br><b style=\"background-color: rgb(255, 255, 0);\">36. Thus, the national interest is paramount and all other interests including the individual interest will have to yield or kneel before the national interest.</b> In fact, the economic offences constitute a class by itself and the approach to said issue has to be from a wider angle, as economic offence if it goes unchecked, it would lead to serious consequences affecting the economy of the country as whole and it would pose a serious threat to  the financial stability of the country. This Court cannot lose sight of the fact that cause of the community  deserves equal treatment at the hands of the Courts. <br>37...Hence, we are of the considered view that the  LOCs issued against the petitioner by respondent Nos.3 and 4 and the consequential endorsement dated 08.12.2020 issued by respondent No.1, as affirmed by the learned Single Judge does not suffer from any infirmities either in law or on facts calling for our interference. We are also of the considered view that finding recorded by the learned Single Judge is based on sound appreciation of facts and law.<br>For the reasons aforestated, we proceed to pass the following:<br>JUDGMENT<br>(i)<span style=\"white-space:pre\">	</span>Writ appeal is dismissed.<br>(ii)<span style=\"white-space:pre\">	</span>The order dated 12.02.2021 passed in W.P.No.15032/2020 is affirmed.<br>(iii)<span style=\"white-space:pre\">	</span>No order as to costs.<br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br></h4><p><br></p>', '8dc995fbc029bad41fb88849a353003a.PNG', '5187e7ba949d25b1731139c9683e898f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-12', 1, '', '', '2021-06-01 17:09:14', '2021-06-01 17:12:21'),
(791, 'lINWlRI30v0P3zA1KqN7pbP4R', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cenvat Credit Rules, 2004. Industry having outdoor catering services for factory canteen cannot claim Cenvit credit post 2011. Court, while dealing with taxing statute, cannot include what is specifically excluded. Karnataka High Court. 21 April 2021', '<h4>Toyota Kirloskar Motor Private Limited vs The Commissioner of Central Tax. </h4><h4>CEA 36 of 2018 decided on 21 April 2021. </h4><h4>Justice Satish Chandra Sharma and Justice S. Vishwajith Shetty. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/383130/1/CEA36-18-21-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/383130/1/CEA36-18-21-04-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 6. The facts further reveal that for providing food and beverages the appellant engaged the services of outdoor catering viz., Sodexho Food Solutions Private Limited to render taxable services of outdoor catering to the appellant by supplying services inside the canteen facility and raised bills/invoices by charging applicable rate of service tax. The service being an eligible ‘input service’ for the manufacturing, in terms of Rule 2(l) of the Cenvat Credit Rules, 2004, the appellant is availing the cenvat credit of the same and utilized the said credit towards duty payable on the final products manufactured by the appellant. The appellant has taken cenvat credit of service tax paid under the category of ‘outdoor  catering’ service since September 2004 till April 2011 i.e., till  the amendment was made to Cenvat Credit Rules, 2004.<br>8. The department issued a show cause notice on 23.4.2012, wherein it was alleged that outdoor  catering  services were not eligible input services being excluded vide  Rule 2(l)(c) of the Cenvat Credit Rules and accordingly, the  show cause notice proposed to demand the credit with interest and imposition of penalty. A reply was filed to the show cause notice dated 23.4.2012 and the adjudicating authority has passed the order on 4.4.2013 confirming the demand of Rs.37,53,952/- with interest and also imposed a penalty of Rs.5 lakhs under Section 11AC r/w Rule 15(1) of the Cenvat Credit Rules, 2004.<br>15. The undisputed facts make it very clear that the period involved in the present appeal is admittedly of post 2011 period and after the amendment to the provisions of Rule 2(l) defining the ‘input service’ and the amendment to the provision of Rule 2(l) defining the ‘input service’ came into effect w.e.f., 1.4.2011. The definition of ‘input service’ post amendment contains exclusion clause and exclusion clause was effected w.e.f., 1.4.2011. Clause (c) of the said exclusion clause specifically excludes the services provided in  relation  to ‘outdoor catering’ services. It is certainly not in dispute  that said services prior to 1.4.2011 have been held to be covered by the definition of ‘input service’, however, after the amendment came into force in the light of specific exclusion clause, ‘outdoor catering’ service is not at all covered under the definition of ‘input service’<br>21.A Taxing Statute has to be strictly construed and in Taxing Statue one has to look merely at what is clearly said. <br>23. Resultantly, this Court has to look squarely at the words of the statute and interpret them. A Taxing Statute has  to be interpreted in the light of what is clearly expressed, it cannot imply anything which is not expressed, it cannot merge provisions in the statute so as to supply any assumed deficiencies.<br>24. Resultantly, this Court does not find any reason to interfere with the order passed by the Tribunal.  The question   of law is answered in favour of the revenue and against the assessee. The appeal stands dismissed accordingly.<br><br><br><br><br><br><br><br><br><br><br><br><br><br></h4><p><br></p>', '253b02b1271c7294a974746d5cea4ee4.png', '10112eecaac2b64d3b9c34981e622f58.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-21', 1, '', '', '2021-06-01 18:10:33', '2021-06-01 18:11:25'),
(792, 'Kth0RtGbY6j7b04qyheQxfLX2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Order granting or rejecting bail under Section 167-2 is an interlocutory order and hence revision under Section 397 read with Section 401 is NOT maintainable. Karnataka High Court. 24 May 2021', '<h4>Rijesh Ravindran vs Union of India. </h4><h4>Criminal Revision Petition 324 of 2021 decided on 24 May 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/384938/1/CRLRP324-21-24-05-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/384938/1/CRLRP324-21-24-05-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: The present petitioner who is common in both the revision petitions is the accused No.3 in Special C.C.No.159/2021, pending on the file of the learned XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS), Bengaluru, CCH-33, (hereinafter for brevity referred to as “the Special Court”), which criminal proceedings was initiated against ten accused persons including the present petitioner by the respondent through its complaint under Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter for brevity referred to as “the NDPS Act”) for the offences punishable under Sections 8(C) read with Sections 22 (C), 27, 27A, 28, and 29 of the NDPS Act.<br>6. After hearing the learned counsels for the parties, the points that arise for my consideration in these two revision petitions are:<br><b>[i] Whether the revision under Section 397 read with Section 401 of the Cr.P.C. is maintainable against the order passed rejecting the application filed under Section 167(2) of the Cr.P.C.?<br></b>9. Admittedly, in the case on hand, the order challenged in Criminal Revision Petition No.324/2021 is an order passed by the Special Court, rejecting the application filed by the present petitioner under Section 167(2) of the Cr.P.C. The said petition is filed under Section 397 read with Section 401 of the Cr.P.C. Section 397(2) Cr.P.C. clearly mandates that the powers of revision conferred by sub-Section (i) of Section 397 shall not be exercised in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceeding. Therefore, now the only point required to be considered is, whether the impugned order passed by the Special Judge can be termed as an interlocutory order. If the answer would be ‘yes’, then, the present Criminal Revision Petition No.324/2021 would not be maintainable.<br>10. It is noteworthy that the Hon’ble Apex Court even after observing that any order which substantially affects the right of the accused or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, still, was pleased to hold as for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the Cr.P.C. Thus, the Hon’ble Apex Court did not consider the ‘passing of orders for bail’ as an order substantially affecting the right of the accused or deciding certain of his rights so as to exclude such an order from the category of interlocutory orders.<br>11.The question as to what is ‘revisable order’ and what is an ‘interlocutory order’ came up for consideration before the Hon’ble Apex Court in the case of Girish Kumar Suneja Vs. Central Bureau of Investigation reported in (2017) 14 Supreme Court Cases 809. It also had an opportunity to analyse as to what is the revisional jurisdiction of the High Court.<br>12....a final order or an intermediate order is revisable, but not the interlocutory orders. Though an intermediate order is an order which is interlocutory in nature, but when reversed has the effect of terminating the proceeding thereby resulting in a final order.<br>13. In the instant case, the order passed upon an application filed under Section 167(2) of the Cr.P.C. though it touches upon an accused of his personal liberty as to whether he is required to be enlarged on bail, but such an order, if reversed, can, at the best, may result in a finding on his right of appeal but would not result in culmination of a proceeding, resulting in a final proceeding thereby resulting in a final order. The case&nbsp; would continue though the accused, whether enlarged on bail or not. Similar would be the consequence with respect to the orders on bail under Chapter XXXIII of the Cr.P.C. also. There also, any order passed on an application under Sections 437 or 439 of the Cr.P.C. would affect the right of an accused of his liberty but it would not be an end to the main case. Thus it would not culminate into termination of the entire proceeding. The only difference between an order passed on an application filed under Section 167(2) of the Cr.P.C. and an order on an interlocutory application/petition filed under Section 439 of the Cr.P.C. is that, as a default and as a matter of right, the accused is enlarged on bail under Section 167(2) Cr.P.C., whereas same is not the case under Section 439 of the Cr.P.C. Further, a single application would be generally entertainable under Section 167(2) of the Cr.P.C. whereas, a successive or repetitive application(s)/ petition(s) can be filed under Section 439 of the Cr.P.C. By that itself, it cannot be said that Section 167(2) of the Cr.P.C. is totally a different type of bail order compared to the one under Chapter XXXIII of the Cr.P.C. It cannot be forgotten that Proviso (a)(ii) to Section 167(2) of the Cr.P.C. mentions that every person released on bail under that sub-section shall be deemed to be so released under the provisions of Chapter XXXIII of the Cr.P.C. for the purposes of that Chapter. It is keeping the said Proviso in mind and also the concept of ‘intermediate order’ and ‘interlocutory order’ as distinguished by the Hon’ble Apex Court in Girish Kumar Suneja’s case (supra), when we read the phrase “passing orders for bail” mentioned by the Hon’ble Apex Court in Para-6 of its judgment in Amar Nath’s case (supra), the argument of the learned Senior Counsel for the petitioner that the said phrase excludes the order on bail under Section 167(2) of the Cr.P.C., is not acceptable. <b style=\"background-color: rgb(255, 255, 0);\">Consequently the order either granting or rejecting the bail on an application filed under Section 167(2) of the Cr.P.C. would become an interlocutory order for the revision of which there is a bar under sub-section (2) of Section 397 of the Cr.P.C. </b>Though the Co-ordinate Benches of this Court in Firoz Khan’s case (supra), Sri. Rajesh Nayak’s case (supra) and Sri. Sangappa’s case (supra) have entertained revision under Section 397 of the Cr.P.C. against an order passed on an application filed under Section 167(2) of the Cr.P.C., but it has to be noticed that, in none of those petitions, the question regarding maintainability of the revision petition was raised, as such, those orders did not discuss the question of maintainability of the revision against an order passed on the application filed under Section 167(2) of the Cr.P.C.</h4><h4>14...Therefore, it is clear that, since the petitioner has got a specific remedy to redress his grievance for challenging the order passed by the Special Judge on his application under Section 167(2) of the Cr.P.C. under a different provision of law and the said impugned order being an interlocutory order, the bar under Section 397(2) of the Cr.P.C. applies, as such, the revision is not maintainable.<br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br></h4><p><br></p>', '757bdbd236a074d4264ba51542efa063.jpg', 'c38824452e88ded37f4ebb740cbcb908.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-24', 1, '', '', '2021-06-01 22:21:03', '2021-06-01 22:30:12'),
(793, 'rKuu3qf6sXaFLBuAvasvDJjpB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Bar against transfer of personnel two years prior to retirement is to ensure smooth transition at the fag end of of service. Such beneficial rule can\'t be violated in the guise of Movement Order. Karnataka High Court. 24 May 2021', '<h4>P.S.Venkatesh vs The Secretary Ministry of Home Affairs and others. </h4><h4>Writ Petition 3562 of 2021 decided on 24 May 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/384940/1/WP3562-21-24-05-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/384940/1/WP3562-21-24-05-2021.pdf</a></h4><h4>The petitioner in this writ petition calls in question a Movement order dated 08.02.2021 transferring and directing movement of the petitioner from Coorg to Odisha.<br>9. Transfer an incidence of service, is by now a too well settled principle of law. But such transfers of any personnel in the Government is generally regulated by Rules/Government orders/operative guidelines by way of policy as obtaining from time to time. Therefore, such incidence of service is hedged by the conditions stipulated in either the Rules/Government Orders/policy.&nbsp;<br>....Members of the force having good service record, free from pendency of vigilance or disciplinary action would be given posting near their home town, two years before attaining the age&nbsp; of superannuation.&nbsp; Therefore, personnel who are to retire in the next two years are insulated from transfer.<br>10. Such insulation is a well recognized principle in all Rules or policy regulating transfers of personnel in every wing of the Government. It forms a part of every Rule as, when an employee is at the last lap of his service, he is inundated with manifold responsibilities, numerous concerns and anxieties, with regard to remainder of his service, his post retirement life and settlement of all his terminal benefits. In order to&nbsp; ensure a smooth transition at the fag end and would have sufficient time to tie up the loose ends of his complete tenure of service, such beneficial rule finds place in the Rules regulating transfer. It is the afore- quoted Rule that regulates an identical circumstance in the case at hand.<br>11. It is now germane to&nbsp; notice&nbsp; the&nbsp; law&nbsp; in&nbsp; regard to&nbsp; interference&nbsp; by&nbsp; the&nbsp; Constitutional&nbsp; Courts&nbsp; qua&nbsp; transfer of personnel. The Apex Court in the case of Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey reported in (2004) 12 SCC 299. In the light of the law down by the Apex Court, judicial interference in an incidence of service i.e., transfer can be only on malafides, incompetence or violation of any Rule/policy/operative guidelines. The case at hand, will have to be considered on the touchstone of the Rules supra and the judgments of the Apex Court as afore- quoted interpreting judicial interference in the matters of transfer.<br>12. Petitioner is now aged 58 years and is due to retire in the month&nbsp; of&nbsp; April&nbsp; 2023.&nbsp; The&nbsp; posting&nbsp; now made from Yelahanka, Bengaluru to Odisha clearly falls foul of the afore-quoted Rule. The language&nbsp; deployed in&nbsp; the said Rules is that it benefits members of the force having good record of service and free from disciplinary and vigilance angle.<br>13....A bare perusal at the impugned Movement order is clear that he is directed to maintain strict discipline enroute and on arrival at his destination i.e., Odisha he will report to the officers mentioned therein at Odisha. This can be nothing but an order of transfer titled a Movement order notwithstanding it depicting that it is temporary. In general parlance, there cannot be a Movement order without transferring a Government servant. Therefore, the contention of the learned counsel for the respondents that it is not a&nbsp; transfer&nbsp; order is at best a figment of his imagination.<br><b>(i) The writ petition is allowed.</b><br><br><br><br><br><br><br><br><br><br><br><br><br><br></h4><p><br></p>', 'd7e0ac09fd1a4a72171902dcf83827cd.jpg', 'f2ee0bdb78eb6f870bb525d1417e1162.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-24', 1, '', '', '2021-06-01 23:57:58', '2021-06-01 23:57:58'),
(794, 'XQpU53mP0XAlYUp5q55a4UpgS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'NDPS Act. The Intelligence Officer of NCB  is authorised to file a complaint under Section 36 instead of police report. When a compliant is filed, accused can NOT claim default bail under Section 167-2 Cr.P.C. Karnataka High Court.', '<h4><b>Rijesh Ravindran vs Union of India.<br></b></h4><h4><b>Criminal Revision Petition 324 of 2021 decided on 24 May 2021. </b></h4><h4><b>Justice H.B. Prabhakara Sastry</b></h4><h4><b><br>15. Learned Senior Counsel for the petitioner in his argument submitted that, under Section 53 of the NDPS Act, the Central Government, may, by Notification published in the Official Gazette, invest any Officer of the Department of Narcotic Control Bureau (NCB) with the powers of an officer-in-charge of a Police Station for the investigation of the offences under this Act. As such, the complainant who has filed the complaint in this case is a Police Officer in-charge of the Police Station.<br>Learned Senior Counsel for the petitioner further submitted that, since the complainant is an Officer-in-charge of a Police Station for the purpose of the investigation under this Section, he has to file a Police report after completion of investigation, but not a complaint. Since he has filed  a complaint, the same is bad in the eye of law. He submitted that, since the complainant has filed a complaint under Section 200 of the Cr.P.C., which is not a Police report, the Special Court ought not to have taken/accepted the said complaint but should have returned the same. Therefore, in the absence of any Police  report being filed by the respondent within the statutory time of 180 days, the detention of accused No.3 has become illegal detention and therefore, he is entitled for a default bail under Section 167(2) of the Cr.P.C.<br>Learned Senior Counsel for the petitioner also drew the attention of the Court to Section 2(d) and 2(r) of the Cr.P.C. which defines ‘complaint’ and a ‘Police Report’ respectively.<br>Learned Senior Counsel, in his support, mainly relied upon a case of the Hon’ble Apex Court in Tofan Singh Vs. State of Tamil Nadu reported in 2020 SCC OnLine SC 882.<br>Stating that the law laid down by the Hon’ble Apex Court applies to all pending cases under Article 141 of the Constitution of India, learned Senior Counsel for the petitioner also relied upon a judgment of the Hon’ble Apex Court in the case of Maj. Genl.A.S. Gauraya and another Vs. S.N. Thakur and another reported in (1986) 2 Supreme Court Cases 709.<br></b></h4><h4><b>16..... the main thrust of argument of the learned Senior Counsel for the petitioner was on the aspect that, the respondent should have filed a report preferably a Police report but not a complaint in the matter. As such, the very initiation of the criminal proceedings against the petitioner herein who is accused No.3 in the Special Court is bad in the eye of law, as such, the same deserves to be quashed. <br></b></h4><h4><b>17. Learned Senior Central Government Standing Counsel for the respondent – NCB, in his argument submitted that, the complaint filed in the matter is not filed under Section 200 of the Cr.P.C., but it is filed under Section 36A of the NDPS Act. He further submitted that, NDPS Act is a self-sufficient Act and it need not rely upon the Code of Criminal Procedure in its entirety.<br>The learned Standing counsel drawing the attention of the Court to Sections 4 and 5 of the Cr.P.C. submitted that, NDPS is a special law which has come into force subsequent to the Code of Criminal Procedure. As such, the application of Code of Criminal Procedure is very limited for any offence to be tried for the offences punishable under the NDPS Act.<br></b></h4><h4><b>19. It is not in dispute that, under Section 53 of the NDPS Act, the Central Government, after consultation with the State Government, may by Notification published in the Official Gazette, invest any Officer of the Department of Narcotics with the powers of an Officer-in-charge of a Police Station for the investigation of the offences punishable under the NDPS Act.<br></b></h4><h4><b>27...the majority judgment of the Hon’ble Apex Court in Tofan Singh’s case (supra), does not specifically say that the complaint cannot be filed by the concerned Officer. Further as observed above, the question referred to the Hon’ble Apex Court was not as to whether the concerned Officer under the NDPS Act invariably should file a Police report but not a complaint, on the other hand, the question was, as observed above, whether an Officer empowered under Section 42 of the NDPS Act and/or the Officer empowered under Section 53 of the NDPS Act are “Police Officers” and therefore, the statements recorded by such Officers would be hit by Section 25 of the Evidence Act. Thus, when majority view has not categorically and specifically stated that invariably the concerned Officer should file a ‘police report’ only, and that he cannot file a complaint, on the other hand, the minority judgment has held that, there is no provision in the NDPS Act, which makes it incumbent upon the concerned Officer who make any enquiry/investigation under the NDPS ct, to prepare or file any report, it is clear that though the majority as well as the minority view has any difference on the point that the concerned Officer can file either a ‘Police report’ or a  ‘complaint’.  Therefore, the main argument of the learned Senior Counsel for the petitioner that, the Intelligence Officer of the respondent ought to have filed a ‘police report’ but not a ‘complaint’ in the matter, as such, it has to be taken that within the prescribed period of 180 days, no report has been filed entitling the petitioner for a default bail under Section 167(2) of the Cr.P.C. and also the taking of cognizance on such complaint would not hold good in the eye of law, is not acceptable.<br></b></h4><h4><b>The Criminal Revision Petition No.324/2021 is dismissed as not maintainable as well as devoid of merit and Criminal Revision Petition No.325/2021 is dismissed as devoid of any merit.</b><br></h4>', '61e1e541a6529209fd733320f68a0794.JPG', '857ea3f8649ce24a271fa0f349eecb99.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-06', 1, '', '', '2021-06-02 00:55:56', '2023-02-06 14:32:19'),
(795, 'SlKCencDpp61d46eHW6VyUXaq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constitution of India. Articles 12 and 226.  Actions of educational institutions, forming part of public law as opposed to private law, are amenable to writ jurisdiction. Calcutta High Court. 1 June 2021', '<h4><span style=\"font-size: 1.3125rem;\">Bineeta Patnaik Padhi vs Union of India and others. </span></h4><h4><span style=\"font-size: 1.3125rem;\">W.P.A. 5544 of 2021 decided on 1 June 2021</span></h4><h4><span style=\"font-size: 1.3125rem;\">Justice Shekhar B. Saraf</span><br></h4><h4><span style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 0);\">Relevant paragraph</span><span style=\"font-size: 1.3125rem;\">s: 1. The petitioner, an educationist by profession, has been constrained to invoke\r\nthe writ jurisdiction of this Court under Article 226 of the Constitution of\r\nIndia. The petitioner has averred that while she was discharging her duties\r\nas the Principal of Army Public School at Panagarh (arraigned as\r\n?Respondent No. 5? in this writ application and hereinafter referred to as the\r\n?said school?) and whilst serving in her tenure as an extended probationer,\r\nshe was terminated from such post in violation of both her fundamental&nbsp;rights as well as certain statutory rights. This termination was effected on\r\nher by Chairman of the said school (hereinafter referred to as ?Respondent\r\nNo. 7?).&nbsp;</span><br></h4><h4>8. Therefore, in pursuance of the arguments advanced by the learned counsels\r\nappearing on behalf of both the parties, <b style=\"background-color: rgb(255, 255, 0);\">the issue which arises for the Court‘s\r\nconsideration at this stage is whether the said school is amenable to the writ\r\njurisdiction of this Court under Article 226 of the Constitution of India in\r\nspite of being an unaided private educational institution and in light of being\r\nmanaged by the AWES, a society registered under the Societies Registration\r\nAct, 1860?&nbsp;</b></h4><h4>24. The power of judicial review by the High Courts in the country emanates\r\nfrom Article 226 of the Constitution of India. Akin to the power bestowed to\r\nthe Supreme Court of India under Article 32 which is placed in Part III of the\r\nConstitution of India thereby making it a fundamental right in its own\r\nstanding, it is axiomatic to state that the scope of the power under Article\r\n226 is much wider as compared to powers conferred under Article 32. The\r\nreason for such an exposition is an all-important, distinguishing feature: writ&nbsp;applications under Article 32 can be pressed to enforce only a fundamental\r\nright(s). However, in the case of Article 226, in addition to the enforcement\r\nof a fundamental right, a petitioner can also seek the enforcement of any\r\nlegal right.</h4><h4>25. It would be quite apposite to fall back upon the exposition on this point of\r\nlaw made by Subba Rao, J. (as he then was) when he was speaking for the\r\nConstitution Bench in its decision rendered in Calcutta Gas Co. Ltd. –vState of West Bengal reported in AIR 1962 SC 1044:</h4><h4>26 &amp; 27. A similar opinion was also voiced by P.N. Bhagwati, J. (as he then was) when\r\nthe Full Bench of the Apex Court rendered its decision in the landmark case\r\nof Bandhua Mukti Morcha –v- Union of India, reported in (1984) 3 SCC\r\n161.&nbsp;A more recent view was reiterated by the Supreme Court in K.K. Saksena –\r\nv- International Commission on Irrigation &amp; Drainage reported in (2015)\r\n4 SCC 670. </h4><h4>28.&nbsp;Therefore, when a preliminary objection has been raised qua maintainability\r\nof the writ application filed by the aggrieved petitioner at her own risk under\r\nArticle 226 of the Constitution of India, it would augur well for all to be\r\nreminded of the basic premise on which such power is exercised by the\r\nconstitutional courts. Therefore, if the petitioner has felt that she stands\r\nviolated of her precious fundamental right or any legal right for that matter,\r\nit is this Court‘s bounden duty to inspect the propriety of the same. However,\r\nthe hurdle which remains to be crossed is to examine if the said school,\r\nbeing an unaided school, as emphasized by Mr. Dastoor, is amenable to the\r\nCourt‘s writ jurisdiction under Article 226 of the Constitution of India. </h4><h4>29.&nbsp;It is not in dispute that the said school is an unaided school and is managed\r\nby the AWES. AWES, as has been previously stated, is a society registered\r\nunder the Societies Registration Act, 1860. Whether such a categorization is\r\nsufficient to place the said school or the AWES beyond the contours of Article\r\n12 of the Constitution of India requires a thorough examination. Merely\r\nregistering a body under the Societies Registration Act, 1860 does not ensure\r\nthat such body is beyond the pervasive edict of Article 12; a related case in\r\npoint would be the case of B.S. Minhas –v- Indian Statistical Institute\r\nreported in (1983) 4 SCC 582, whereby the respondent institute was\r\ndeclared to be an ?instrumentality‘ of the Union Government and classified as\r\na State under Article 12 inspite of being a society registered under the\r\nSocieties Registration Act, 1860. </h4><h4>30....Initially, the definition of ?State‘ in Article 12 was considered to be\r\nstraightforward. As the nation developed over time, multiple bodies have\r\nsprung up and these bodies suffice to say, serve manifold objects and\r\ndischarge duties of myriad kinds to the citizenry. As a direct result of such&nbsp;proliferation in the growth of such institutions, multiple rounds of litigation\r\nbefore the Supreme Court have produced a litany of tests, laid down by no\r\nless than Constitution Benches in a catena of judgments, in order to\r\nconstrue the terms ?local authorities‘ as well as ?other authorities‘, as stated\r\nin Article 12 of the Constitution of India, extracted above. </h4><h4>32.&nbsp;Therefore, what follows is the fact that even if AWES was considered to be a\r\nprivate body/authority, a writ of mandamus under Article 226 of the\r\nConstitution could be issued to the same if it were proved that it is\r\nperforming a public duty and it owed a positive obligation to an affected\r\nparty. The reason for such permissibility is the phraseology of Article 226\r\nitself. The Supreme Court had enunciated the implications of such an\r\nexposition in a detailed manner in Binny Ltd. –v- V. Sadasivan, reported in\r\n(2005) 6 SCC 657. </h4><h4>33.&nbsp;Therefore, the major principles which emerge from V.R. Rudani (supra) and\r\nV. Sadasivan (supra), for the Court‘s consideration are as follows: </h4><h4>(a) A writ of mandamus can be issued to a private body/authority under\r\nArticle 226 of the Constitution of India. </h4><h4>(b) Such a writ can only be issued to such a private body/authority if\r\nsuch an authority is discharging a ‘public function’ and the decision\r\nsought to be corrected or enforced must be in discharging a public\r\nfunction. </h4><h4>(c) The scope of mandamus is determined by the nature of the duty to be\r\nenforced, rather than the identity of the authority against whom it is\r\nsought. </h4><h4>(d) A body is performing a ‘public function‘ when it seeks to achieve\r\nsome collective benefit for the public or a section of the public and\r\nis accepted by the public or that section of the public as having\r\nauthority to do so. Bodies therefore exercise public functions when they\r\nintervene or participate in social or economic affairs in the public\r\ninterest. </h4><h4>(e) If the private body is discharging a public function and the denial of\r\nany right is in connection with the public duty imposed on such\r\nbody, the public law remedy can be enforced.&nbsp;</h4><h4>(f) The duty cast on the public body may be either statutory or otherwise\r\nand the source of such power is immaterial, but, nevertheless, there\r\nmust be a public law element in such action. </h4><h4>36.&nbsp;Therefore, the organic deduction that follows is that since the said school\r\nwhich is run by AWES, being an unaided school, by virtue of the Section 2(n)\r\nof the RTE Act, the said school had come to discharge a public duty as was\r\ncast upon it by the said statute with effect from April 1, 2010. Such a public\r\nduty stands imposed, in my opinion, in terms of both Article 21A of the\r\nConstitution of India as well as the RTE Act which gave effect to the\r\nfundamental right in unequivocal terms. </h4><h4>42.&nbsp;An important caveat was appended by the Supreme Court in K.K. Saksena\r\n(supra) whereby the Court had ruled that even if an authority was deemed to\r\nbe a ?State‘ under Article 12 of the Constitution, the constitutional courts\r\nbefore issuing any writ, particularly that of mandamus, must satisfy\r\nthat such impugned action of the authority concerned which is under\r\nchallenge, forms a part of the public law as opposed to private law. </h4><h4>55.&nbsp;Thus, to summarize the findings of the Court: </h4><h4>(a) The said school, Army Public School, Panagarh, is held to be a ?State‘\r\nunder Article 12 of the Constitution. </h4><h4>(b) In spite of being an private unaided educational institution, since it\r\nhas been discharging a public duty under the prescriptions of a statute\r\nand subsidiary rules made under it, that is, the RTE Act and the&nbsp;WBRTE Rules, the said school is amenable to the Court‘s writ\r\njurisdiction under Article 226 of the Constitution of India.</h4><h4>(c) ...even if an\r\nauthority is deemed to be a State‘ under Article 12 of the Constitution,\r\nthe constitutional courts before issuing any writ, particularly that of\r\nmandamus, must satisfy that such impugned action of the authority\r\nconcerned which is under challenge, forms a part of the public law as\r\nopposed to private law. Accordingly, after the coming into effect of the\r\nRTE Act, the said school was guided by the same along with the\r\nWBRTE Rules vis-à-vis compliance with rules of natural justice as well\r\nas a prescribed grievance redressal mechanism. This gives it a distinct\r\ncharacterization of public law. </h4><h4>(d) The examined provisions of the RTE Act read with provisions of the\r\nWBRTE Rules, indeed regulates the contract of service of the\r\npetitioner, and this thereby falls within the exception as stated in Kago\r\nKunya .</h4><h4>(e) Lastly, in light of the West Bengal Administrative (Adjudication of\r\nSchool Disputes) Commission Act, 2008 not having been notified as on\r\ndate, the only efficacious and alternate remedy at the disposal of the\r\npetitioner for the redressal of her grievance was to file a writ\r\napplication under Article 226 of the Constitution of India.&nbsp; </h4><h4>In conclusion thereof, the preliminary objection raised on the grounds of\r\nmaintainability of the present writ application is hereby rejected.</h4><p><br></p>', '242f36468fa6cc78351e5fc434d63ab5.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-01', 1, '', '', '2021-06-02 17:03:25', '2021-06-02 17:03:25'),
(796, 'UU9YvPRevHdQ3Qw6rJZ9YsKUJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Order 39 Rules 1 and 2. Trial court has to apply its mind while granting ex-parte injunction. Passing cryptic, bald, laconic, unreasoned and non-speaking order is impermissible. Karnataka High Court. 1 June 2021', '<h4>Glocal Healthcare Systems Pvt Ltd. vs Major Paresh Singhal (Rtd). </h4><h4>Miscellaneous First Appeal 1857 of 2021 decided on 1 June 2021.<br>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/385415/1/MFA1857-21-01-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/385415/1/MFA1857-21-01-06-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraph</span>s: This appeal by the defendant No.1 in the suit in O.S.No.25519/2021 filed by the respondent No.1 - plaintiff on the file of LXXII Addl.City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru (for short \'the trial court\'), is directed against the impugned order dated 30.03.2021 passed by the trial court on I.A.1/2021 filed by respondent No.1 - plaintiff under Order 39 Rules 1, 2 and 10 r/w Sections 94 and 151 CPC; by the impugned order, the trial court directed all parties to maintain status-quo in respect of the suit schedule properties.<br>3. In addition to reiterating the various contentions urged in the memorandum of appeal and the documents and citations relied upon by the appellant, learned senior counsel for the appellant submitted that apart from various serious infirmities contained in the impugned order, the ex-parte interim order of status-quo passed by the trial court is vitiated on account of being unreasoned, non-speaking and cryptic order which has been passed without any application of mind and in contravention of Order 39 Rule 3 CPC and as such, the impugned order deserves to be set aside on this ground alone.<br>6. Though several contentions have been urged by both sides in respect of their respective claims, a perusal of the impugned order of status-quo passed by the trial court will clearly indicate that the same is a cryptic, bald, laconic, unreasoned and non-speaking order which is bereft of any reasons and without any application of mind; further, the impugned order directing the parties to maintain status-quo in respect of the suit schedule properties also ignores the fact that in the plaint or the application I.A.1/2021 filed in the suit, no schedule of properties as required in law has been stated / described by the plaintiff so as to enable passing of an order in respect of suit schedule properties; the impugned ex-parte order of status-quo passed by the trial court is contrary not only to Order 39 Rule 3 CPC but also to the decisions of the Apex Court and this Court referred to supra and consequently, the impugned order deserves to be set aside on this ground alone. Further, having regard to the facts and circumstances of the instant case, the decisions relied upon by the respondent No.1 - plaintiff which were rendered in  the peculiar facts and circumstances obtaining in the said cases are not applicable to the case on hand.<br>(ii) The impugned order of status-quo dated 30.03.2021 passed by the trial court on I.A.1/2021 filed by the respondent No.1 - plaintiff in O.S.No.25519/2021 as well as the subsequent order dated 17.04.2021 passed by the trial court extending the earlier interim order of status-quo are hereby set aside.<br>(iii) The trial court is directed to consider and dispose of I.A.1/2021 filed by the respondent No.1 - plaintiff on merits and in accordance with law as expeditiously as possible and at any rate, on or before 17.06.2021.<br><br><span style=\"background-color: rgb(255, 255, 0);\">Judgments cited by the appellant</span>.<br>(i)<span style=\"white-space:pre\">	</span>Shivkumar Chadha vs. MCD - (1993) 3 SCC 161;<br>(ii)<span style=\"white-space:pre\">	</span>Jayaram & Anr. vs. Dr.Rajashekar & Others - MFA No.6227/2016 Dated 13.12.2019;<br>(iii)<span style=\"white-space:pre\">	</span>Beau Jhelum Traders & Anr. vs. Ramesh K.R. & Others - MFA No.5034/2014 Dated 20.08.2014;<br>(iv)<span style=\"white-space:pre\">	</span>Vendanth Fashions Pvt. Ltd., vs. Rajul Devi - (2014) SCC Online KAR 7191;<br>(v)<span style=\"white-space:pre\">	</span>R.K.Jain vs. PG Chacko - (2013) SCC Online KAR 10168<br>(vi)<span style=\"white-space:pre\">	</span>Vemula Rajkumar vs. Sampath Kumar - CRP No.1044, 970 and 971/2020 Dated 28.12.2020;<br>(vii)<span style=\"white-space:pre\">	</span>N.Ramaiah vs. S.Nagaraj - ILR 2001 KAR 3466;<br>(viii)<span style=\"white-space:pre\">	</span>Smitha vs. Srinivas - MFA No.4890/2015 Dated 24.07.2015.<br>(ix)<span style=\"white-space:pre\">	</span>Vice President vs. S.K.R Balakrishnan - (2000) SCC Online MAD 416;<br>(x)<span style=\"white-space:pre\">	</span>Shashi Prakash Khemka vs. NEPC Micon - (2019) 18 SCC 569;<br>(xi)<span style=\"white-space:pre\">	</span>Wilfred D\'Souza vs. Lotus Shopping Centre - MFA No.2573/2015 Dated 18.06.2015.<br>(xii)<span style=\"white-space:pre\">	</span>SAS Hospitality Pvt. Ltd., vs. Surya Constructions - (2018) SCC Online Del 11909;<br>(xiii)<span style=\"white-space:pre\">	</span>Vikaram Jairath vs. Middleton Hotels Pvt. Ltd., - 2019 SCC Online Cal 6663;<br>(xiv)<span style=\"white-space:pre\">	</span>Parenteral Drugs (India) Ltd., vs. Jagadish Mangal HUF & Others - (2020) 2 MPLJ 623;<br>(xv)<span style=\"white-space:pre\">	</span>Chiranjeevi Rathnam vs. Ramesh - 2017 SCC Online Mad 23049;<br>(xvi)<span style=\"white-space:pre\">	</span>Shankar Assana Gaddam vs. Achanak Associates Realtors Pvt. Ltd., - (2020) SCC Online Bom 1903;<br>(xvii) Delhi & District Cricket Association vs. Sudhir Kumar Agarwal - 2020 SCC Online Del 1223;<br>(xviii) Cotton Corporation of India Ltd., vs. United Industrial Bank Ltd., - (1993) 4 SCC 625;<br>(xix)<span style=\"white-space:pre\">	</span>Patel Enterprises vs. M.P.Ahuja - ILR 1992 KAR<br>(xx)<span style=\"white-space:pre\">	</span>Bharath Coking Coal Ltd., vs. Indian Newspaper <br>Society - (2011) 14 SCC 140;<br>(xxi) P.Ranganathan vs. Sai Jagannathan - (1995) SCC Online Mad 341;<br>(xxii) Sajli Kishku vs. Talamoyee Kishku & Others - MANU/WB/2023/2019;<br>(xxiii) Sky Travels vs. Hari Shankar Sharma - (2004) 2 CLJ (Cal) 239;<span style=\"background-color: rgb(255, 255, 0);\"><br>Judgments cited by the respondents.</span><br>(i) Sm.Muktakesi Dawn & Others vs. Haripada Mazumdar & Anr. - AIR 1988 Cal 25;<br>(ii) Bhasker Gayen & Others vs. Subhadit Mullick & Others - (2012) SCC Online Cal 2246;<br>(iii) NEPC Micon Ltd., vs. Magma Leasing Ltd., & Anr. - (1999) SCC Online Cal 133;<br>(iv) G.S.Prasanna Kumar vs. R.S.Shekarappa - MFA No.5998/2015 Dated 20.08.2015;<br>(v) Prakash Roadlines vs. Vijayakumar Narang -(1995) 84 COMPCAS 782 (KAR);<br>(vi) Jaikumar Arya vs. Chaya Devi - MANU/DE/3486/2017.<br><br><br><br><br><br><br><br><br><br><br><br><br></h4><p><br></p>', '4fd021052423b7bfc85b6275d327febc.jpg', '4f0192e6a68ca512db0b2baba43d3eca.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-01', 1, '', '', '2021-06-02 20:34:42', '2021-06-02 20:36:40');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(797, 'EU7sfg15VRB3DQMZrfT579WvC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Preventive detention. Grounds. Mere furnishing of material forming basis of purported ground without explicitly formulating grounds and providing conclusion thereon cannot be termed as grounds contemplated under law. Karnataka High Court. 2:6:2021', '<h4>Tarannum C Inamdar vs The Deputy Commissioner and District Magistrate. </h4><h4>Writ Petition Habeas Corpus 200014 of 2020 decided on 2 June 2021</h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/385557/1/WPHC200014-20-02-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/385557/1/WPHC200014-20-02-06-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 13. The detaining authority is required to record concise reasons for detaining a person under the provisions of the 1985 Act and such reasons shall be communicated to the detenue within the time as required under Section 8 of the 1985 Act. The mere furnishing of a paper book containing 183 pages would not constitute reasons. The detaining authority based on the said material is expected to record reasons as to why it is necessary to detain the<br>detenue in custody. Unless the reasons are recorded and communicated to the detenue, there would not be compliance with Section 8 of the 1985 Act. The detaining authority, on scrutiny of material on record, shall record subjective satisfaction, as to the necessity to detain a person under preventive detention. The detenue must be informed about the existence of exceptional circumstances for detention so as to make effective representation. The right to representation is provided to the detenue to enable him to demonstrate that no such exceptional circumstances exist or the reasons recorded are false. On examination of the material on record and on consideration of the rival contentions of the parties, we are of the considered view that the detenue was not communicated nor furnished with the reasons for his detention.<br>14. It is  settled law<span style=\"white-space:pre\">	</span>that<span style=\"white-space:pre\">	</span>the<span style=\"white-space:pre\">	</span>law<span style=\"white-space:pre\">	</span>governing preventive detentions is law of procedural safeguards. The authorities exercising power under the law of Preventive Dentition have to ensure strict compliance of the procedural safeguards provided there under. Any infraction of the safeguards mandated would result in invalidation of the order of detention. The 1985 Act is one such law of Preventive Detention. The said Act lays down procedural safeguards to be strictly complied with. Section 3 of the Act which provides power  to make order of detention postulates subjective \"satisfaction\" of the authority before directing detention of certain persons referred to therein. The emphasis with regard to \"satisfaction\" is not to be understood lightly or casually. It encompasses formation of grounds, examination of grounds duly supported by the material which would satisfy the authority to pass the order of detention. The burden of establishing the factum of satisfaction is on the authority passing the order of detention. This can be ascertained and evaluated from the order of detention which would invariably state the grounds, reasons and conclusion reflecting the application of mind arrived at by the authority before passing the order of dentition.<br>15. \"Grounds\" means the conclusion drawn by the authorities from the facts and particulars which led to the authority to pass the order of detention. Mere furnishing of the material which supposedly formed the basis of the purported ground without explicitly formulating the grounds and without explicitly providing the conclusion thereon cannot be termed as grounds contemplated under law. In the instant case, admittedly even as evident from the statement of objection filed by the respondent - State, it is clear that on 16.10.2012 the respondent authority had merely furnished a paper book of 183 pages consisting of certain materials in the nature of certain case papers and correspondence. The order of detention cryptically refers to the said material. However, nothing is explicitly stated in the order of detention indicating formulation of grounds, examination of grounds and conclusion arrived at leading upto satisfaction of the authority warranting passing of the order of the detention. This in our opinion amounts to infraction and violation of the statutory safeguards provided under the 1985 Act.<br>18. Procedural safeguard provided under Article 22 (5) of the Constitution of India and Section 8 of the 1985 Act having not been followed, the order of detention becomes illegal and the detenue is entitled for release.<br></h4><p><br></p>', 'c42730b4454507256ceae80e63267801.PNG', '8e7437a5944308b6ab7ce3076d30b72f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-02', 1, '', '', '2021-06-03 03:35:35', '2021-06-03 03:36:57'),
(798, 'FOYtomc2IcK6lCjndgPy7TtVj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Anticipatory bail in SC-ST Prevention of Atrocities Act. Accused merely calling complainant as belonging to Scheduled Caste. No material to show intention to humiliate an account of caste. Accused entitled to bail. Karnataka High Court. 1 June 2021', '<h4>N. Srinivas vs State of Karnataka and another. </h4><h4>Criminal Appeal 422 of 2021 decided on 1 June 2021.</h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/385607/1/CRLA422-21-01-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/385607/1/CRLA422-21-01-06-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: Appellant has filed the present appeal under Section 14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short \'the SC/ST Act\') and has sought for setting aside of the order of the trial Court rejecting his application filed under Section 438 of Cr.P.C. in Crl.Misc.No.59/2021 and seeks to be enlarged on anticipatory bail.<br>7. It is noticed that the trial Court has rejected the application primarily on the ground that prima facie case regarding the commission of offence is made out and hence, question of entering into the other aspects relating to the anticipatory bail petition did not arise. A close perusal of the order, however, would indicate that the approach of the court ought to have been to elicit the nature of statement made and to find out whether such statement or abuse relating to the caste has been made only by virtue of the complainant belonging to such caste. The ingredients of the offence as are required to be established has been brought out clearly in the judgment in the case of Hitesh Verma vs The State of Uttarakhand and another in Criminal Appeal No.707/2020 wherein the Apex Court has adverted to the<b style=\"background-color: rgb(255, 255, 0);\"> two main ingredients that need to be established which are that, firstly the statement must have been made in any place within public view and secondly, the statement is to be made only because the complainant belongs to that caste.</b> Insofar as the first ingredient is concerned, prima facie it appears to be made in public place. However, as regards to the second ingredient, it is to be noticed that the statement made was that he belongs to a particular caste and that he is a legislator from that caste. It is a matter of trial and also demonstration by the complainant that such statement was made reference to the caste by the appellant in order to humiliate him as he was a legislator belonging to that caste and that further it is in that context the statement was made. It is a matter that is to be established during trial and after evidence looking into the statement of other witnesses and the context in which such statement was made. <br>8. Insofar as the prima facie case is concerned as regards the two ingredients, it appears that the matter is to be established during trial. It could also be stated that while considering the present appeal, taking note of the nature of proceedings, it could be stated that prima facie commission of offence with reference to the second ingredient appears to be absent as observed above. Insofar as the requirement of custodial interrogation is concerned, as pointed out by the learned counsel for the appellant while taking note of the undertaking referred to above and the undertaking to co-operate with the investigation including furnishing of all other reports relating to his statements made in the<br>9. Accordingly, in light of the discussions made above, while putting the appellant on terms to ensure that he does not repeat such statement which may have the effect of hurting sentiments of the complainant which may constitute an offence and while observing that the appellant as a journalist needs to be cautious insofar as his professional work is concerned so as not to trample upon the right of others, case is made out for enlarging the appellant on bail.<br>10. The appeal filed by the appellant under Section 14A of the SC/ST Act is allowed and the appellant is enlarged on bail </h4>', '802757a6665c04cd3015889a4c212d1a.jpg', '4e791209a5fa45579b7e9c9ec0ecda39.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-01', 1, '', '', '2021-06-03 04:03:42', '2021-06-03 04:06:22'),
(799, 'aTPihnycnKe6xPBmwOj05AO53', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court strikes down CGST Rule, which imposed tax on the entire bet amount held by horse race totalisator, briefly in fiduciary capacity, as ultravires the CGST Act. 2 June 2021', '<h4>Bangalore Turf Club Limited vs The State of Karnataka and others. </h4><h4>Writ Petition 11168 of 2018 decided on 2 June 2021. </h4><h4>Judgment Link: <a href=\"https://karnatakajudiciary.kar.nic.in/judgements/WP-11168-2018CW-11167-2018.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/WP-11168-2018CW-11167-2018.pdf</a></h4><h4>The petitioners in these writ petitions inter alia\r\nchallenge the legislative intent of making the petitioners\r\nliable to pay Goods and Services Tax (‘GST’ for short) on\r\nthe entire bet amount received by the totalisator and\r\ndeclare the amendments dated 25-01-2018 which\r\ninserted Rule 31A(3) to the CGST Rules as being ultra\r\nvires the CGST Act. <br></h4><h4>3. If a horse backed by the punter wins, the\r\nwinning punter is required to surrender the receipt and\r\nreceive the winning amount. It means, a losing punter’s\r\nmoney is used to pay the price money of the winning\r\npunter. The price money is distributed by the\r\npetitioners to the winning punter and out of the amount Commission is set apart to be taken by the petitioners.\r\nThis is the broad modus of functioning of the petitioners\r\nas claimed by it.<br> 4. Up to 30th June 2017 the petitioners claim to\r\nhave discharged payment of service tax on the\r\ncommission so retained and the betting tax under the\r\nprovisions of the Mysore Betting Tax Act, 1932. On and\r\nfrom 1st July 2017, the Mysore Betting Tax and the\r\nService Tax provisions stood repealed and the Goods\r\nand Services Tax laws were brought into force. <br>5. From the appointed day i.e., 01-07-2017 a\r\ncombination of these taxes; Central Goods and Services\r\nTax (‘CGST’ for short), Integrated Goods and Services\r\nTax (‘IGST’) and State Goods and Services Tax (‘SGST’\r\nfor short) and Goods and Services Tax of Union Territory\r\n(‘UTGST’) were all brought into force. Till the onset of\r\nthese taxes, the petitioners were treated as service providers under Chapter-V of the Finance Act, and\r\nService Tax was levied on the petitioners’ commission\r\nalone. After the CGST regime began, an amendment was\r\nbrought into Rule 31A by insertion of Rule 31A(3) to the\r\nCGST Rules. <b style=\"background-color: rgb(255, 255, 0);\">The amendment made GST payable by the\r\npetitioners on the amount of bet that gets into the\r\ntotalisator. </b>It is this amendment that is called in\r\nquestion by the petitioners in this writ petition on the\r\nground that the Rule is made beyond the powers\r\nconferred under the CGST Act, which would render it to\r\nbe ultra vires and has sought a consequential\r\ndeclaration that the CGST and KSGST be restricted only\r\nto the Commission that the petitioners get on holding\r\nthe amount in the totalisator for a brief period. \r\n <br>12.The Apex Court ...has clearly held\r\nthat the measure to which the rate of tax is to be\r\napplied to a taxable person must have a nexus to the\r\ntaxable event and not dehors it.<br> \r\n13. Article 246A comes by way of 101st\r\namendment to the Constitution with effect from 16-09-\r\n2016 under which Goods and Services Tax were\r\nbrought into force. ...In terms of Article 366(12A) Goods and Services tax\r\nwould be any tax on supply of goods and services or\r\nboth except taxes on the supply of alcoholic liquor for\r\nhuman consumption.<br> 14. The Government by Notification dated 28th\r\nJune 2017 brought in certain services under the\r\npurview of CGST. <br>15..there must be goods and there\r\nmust be supply which would only become a taxable\r\nevent. If there is no supply; there is no tax.<br> 20. The activity of the petitioners is required to be\r\nnoticed to consider whether the petitioners are liable to\r\npay tax on 100 per cent of the face value of the bet or\r\nonly on the commission that it receives out of the\r\namount received in the totalisator.  <br>22. ‘Totalisator’ has been interpreted by English\r\nCourts and the Apex Court to mean a fixed commission\r\nwhich is earned irrespective of the outcome of the race\r\nand cannot be seen to be indulging in a betting activity.  <br>23..Therefore, the game of racing as held by the Apex Court\r\nfollowing the law of Queen’s Bench is that it is a game of\r\nskill.<br> 25. What is the function performed by the\r\ntotalisator has been considered by the Apex Court in the\r\njudgments referred to supra. Therefore, a totalisator\r\ndoes not indulge in betting. In my opinion, betting is\r\nneither in the course of business nor in furtherance of\r\nbusiness of a race club for the purposes of the Act. As\r\nstated hereinabove, petitioners hold the amount\r\nreceived in the totalisator for a brief period in its\r\nfiduciary capacity. Once the race is over the money is\r\ndistributed to the winners of the stake. It is for a certain\r\nperiod between input of money by the participants and\r\nthe output of money to the winners of stake during the\r\nrace the petitioners hold that money in its fiduciary\r\ncapacity for which the consideration that the petitioners\r\nreceive is the commission.  Rule 31A(3) completely wipes out the distinction between the bookmakers and a\r\ntotalisator by making the petitioners liable to pay tax on\r\n100% of the bet value.  <br>26..Thus, the totalisator holds money in trust on\r\nbehalf of the punter before redistribution to the winner\r\nof stake which cannot be construed to be a\r\nconsideration in terms of Section 2(31) of the Act.<br> 33...Therefore, the supply of an actionable claim as\r\nindicated in the Rule cannot include the entire amount\r\nbrought into the totalisator.<br>34..Making the entire bet\r\namount that is received by the totalisator liable for\r\npayment of GST would take away the principle that a\r\ntax can be only on the basis of consideration even under\r\nthe CGST.<br> 35.. Rule 31A(3) travels beyond what is conferred upon the\r\nRule making authority under Section 9 which is the\r\ncharging section, by way of an amendment to the Rule.\r\nThe totalisator is brought under a taxable event without\r\nit being so defined under the Act nor power being conferred in terms of the charging section which\r\nrenders the Rule being made beyond the provisions of\r\nthe Act. The same follows to the impugned KSGST\r\nRules which are identical to the impugned CGST Rules.\r\nTherefore, Rule 31A(3) which does not conform to the\r\nprovisions of the Act will have to be held ultra vires the\r\nenabling Act and consequently opens itself for being\r\nstruck down.<br>I declare Rule 31A(3) of the Central Goods\r\nand Services Tax Rules, 2017 as amended in\r\nterms of notification dated 23.01.2018 as\r\nultra vires the provisions of the Central\r\nGoods and Services Tax Act, 2017 Act and\r\nresultantly, quash the same only insofar as\r\nit concerns the petitioners.\r\n(iii) Consequently, I declare Rule 31A of the\r\nKarnataka Goods and Services Tax Rules,\r\n2017 as ultra vires the provisions of the\r\nKarnataka Goods and Services Tax Act, 2017\r\nand resultantly quash the same insofar as it\r\nconcerns the petitioners. </h4><p> </p>', '51de492c6b234dc80c3d8763256e9646.jpg', '86a18cd4ff3f247bfcaa24483837efc4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-02', 1, '', '', '2021-06-03 23:02:28', '2021-06-03 23:09:41'),
(800, 'oGqpL3Wkn3tZz50pSt4T4deZI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Police officer forcing victim-complainant to drink urine. Incident is so heinous and shocking in nature, extending the benefit of anticipatory bail would have serious adverse impact on the society. Sessions Court, Chikmagalur. 1 June 2021', '<h4>Arjun vs State by Gonibeedu Police. </h4><h4>Criminal Misc 346 of 2021 decided on 1 June 2021.</h4><h4>Hon\'ble Judge Shri. K.L. Ashok, I Additional Sessions and Special Judge, Chikkamagaluru.  </h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: The petitioner has filed this petition under Section 438 of\r\nCr.P.C., on line seeking the benefit of anticipatory bail with respect\r\nto Crime No.18/2021 dated 22.05.2021 registered by Gonibeedu\r\npolice for the offences punishable under Section 323, 342, 504,\r\n506, 330, 348 of I.P.C. and under Section 3(1)(a), 3(1)(e), 3(1)(r),\r\n3(2)(va), 3(2)(vii) of SC & ST (Prevention of Atrocities) Amendment\r\nAct 2015.<br>3. The brief facts of the Prosecution case are that on\r\n10.5.2021 at 7.30 a.m., the complainant K.L.Puneeth was in his\r\nhouse situated at Kirugunda Village, Gonibeedu Hobli, Mudigere\r\nTaluk. At that time one K.E.Ramesha, K.B.Paramesh and their\r\ngroup came near his house and asked him to come along with them\r\nto talk about the phone call made by him to one Anuya. But as\r\nthere was huge mob, the complainant did not go with them and\r\ntelephoned to 112 and sought help. Immediately the police rushed\r\nto the spot and enquired them. But the said mob did not agree and\r\nhence they called the accused, who is the P.S.I., of Gonibeedu\r\npolice station. The accused came there and without enquiring the\r\ncomplainant asked him to board the jeep. ...As he was thirsty, the\r\ncomplainant asked the accused to provide water and at that time the accused called another accused by name Chethan and as per\r\nthe direction of the accused said Chethan passed urine to the\r\nmouth of the complainant. Thereafter the accused made the victim\r\nlick the urine from the ground.<br>9. In this case, the accused is a police sub-inspector.\r\nTherefore it is necessary to consider whether he can avail the protection\r\naccorded under section 197 of the Cr.P.C. In this regard it is necessary\r\nto consider whether any prior sanction was required to prosecute the\r\naccused, who is a government official. Admittedly illegal detention and\r\ncustodial torture are not part and parcel of the duty of the police\r\nofficers. Therefore the protection under Section 197 of Cr.P.C., does not\r\ncome into picture and no prior sanction would be required to proceed\r\nagainst such police officers. The Hon\'ble High Court of Karnataka in a recent decision dated 24.05.2021 in Criminal Petition No.996/2021\r\nthe case of S.Shiva Kumar and others Vs. State of Karnataka by\r\nChikkaballapura Rural police and another has held that in cases of\r\nillegal detention and custodial torture, no prior sanction is necessary.\r\nTherefore it cannot be held that a prior sanction was required and as\r\nsuch the accused would be entitled for bail on this ground.<br>11. In this case, it is pertinent to note that the alleged\r\noffence has been committed by a police officer. This victim is a layman,\r\nwho has no influence. When he has been bundled and taken to police\r\nstation and was tortured in custody, the victim just would not know what\r\nhe should do next. He totally would be drawing a blank regarding his\r\nfuture action. He cannot straight away walk into police station and\r\nlodge a complaint against the officer in-charge. That is totally\r\nunthinkable. He also can not approach the higher officials. The victim\r\nbeing a rustic villager that too belonging to weaker community, cannot\r\nbe expected to walk freely in to the office of higher officials and lodged a\r\npolice complaint against their own subordinate. Such being the case, it\r\ndoes take some time for the victim to assess his situation and thereupon he can take any possible action. Therefore this would result in delay in\r\nlodging the complaint.<br> 12...A person, who has suffered this\r\nkind of alleged atrocity would be in utter shock and definitely would not\r\nnormally be in a position to disclose the incident to any one or seek\r\nredressal of the same. He takes time to process the things. He has to\r\nmuster the courage to disclose the incident to his near and dear ones.\r\nThis would not be easy and would take some time. Hence the\r\ncomplainant is not expected to lodge the police complaint at the earliest.\r\nTherefore at this stage it cannot be held that the delay in lodging the\r\npolice complaint helps the accused in any manner<br>19...when the alleged incident is so heinous and shocking in nature, extending the\r\nbenefit of anticipatory bail would have serious adverse impact on the\r\nsociety. It would send a wrong message that the protective machinery of\r\nthe State can do no wrong and the people have no protection. This is\r\nalso one of the reason for not extending the benefit of anticipatory bail\r\nto the petitioner / accused..At the same time, it is also necessary to consider the\r\nstatus of the accused. The accused is a powerful police officer who has\r\nallegedly shown that he can take the law into his own hands and go to\r\nany extent. If he is granted the benefit of anticipatory bail, certainly the\r\nvictim would not be safe. The life and liberty of the victim would be at\r\nconstant threat. At the same time the investigation is still in its infancy\r\nand for an unbiased investigation it would be just and necessary that the\r\naccused should not be in a position to exercise his power and influence\r\nthe investigation.<br> The petition filed by the petitioner Arjun under\r\nsection 438 of Cr.P.C. is dismissed.<br><br><br><br><br><br><br></h4><p> <br></p>', 'd6ede4327fe4d93c80211d913fbcc54c.PNG', 'c5c1c4686fb5296a698905fc1cb81c00.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-01', 1, '', '', '2021-06-04 16:41:36', '2021-06-04 17:08:33'),
(801, 'cVeg0BOruY4LeE1oM1bKrbJIr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 173. Police cannot file common charge-sheet for different crimes registered in different police station though accused is same. For each complaint, there shall be a separate charge-sheet. Karnataka High Court. 31 May 2021', '<h4>The State of Karnataka by CID vs Greenbuds Agro Forms Limited Company and others. </h4><h4>Criminal Petition 9302 of 2016 decided on 31 May 2021</h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/385967/1/CRLP9302-16-31-05-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/385967/1/CRLP9302-16-31-05-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: The State by C.I.D. filed this petition under Section 482 of the Code of Criminal Procedure Code, 1973 (for short, ‘Cr.P.C.’) being aggrieved by the order dated 8-8-2016 passed by the Principal District and Sessions Judge, Mysuru, (hereinafter referred to as ‘Trial Court’) in Crime No.116 of 2013 for having rejected the charge-sheet filed by the Police Inspector, Financial and Vigilance Unit, C.I.D., Bengaluru.<br>7. Admittedly, the accused were involved in cheating of depositors, who invested in their Company and they were many complaints filed by the individual investors in different Police Stations of Mysuru District for the offences punishable both under Section IPC, especially Section 420 of the IPC, and Section 9 of the Act. In view of the order of the Government, the Assistant Commissioner was appointed as per Section 5 of the Act for making enquiry and to file report. However, the said report of the Assistant Commissioner, who is a Competent Authority, required to deal with the investments of the Company or other property believed to have been acquired from out of the deposits and to attach the said investments under Section 3 of the Act and to protect the interest of the investors in accordance with the procedure laid down in the Karnataka Protection of Interest of Depositors in Financial Establishments Act, 2004 . ...Once the complaint is lodged against the Company for cheating the investors as per Section 154 of the Cr.P.C. before the Police and once the case is registered, the Investigating Officer is required to file charge-sheet against the offenders as per Section 173 of the Cr.P.C. The Special Court has been established for trying the offences committed under Section 10 of the Act. Therefore, the Investigating Officer is required to file charge-sheet before the Special  Court established under the Act.<br>8. As per Section 4(2) of the Cr.P.C., all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating,  inquiring into, trying or otherwise dealing with such offences. Such being the case, bifurcating the offences punishable under IPC and Special Law is not correct. Both the offences are required to be tried together by the Special Court established under the Act.<br>9. Though the Trial Court rightly refused to accept the charge-sheet, but committed error in discharging the accused and directing the Investigating Officer to file charge-sheet before the jurisdictional Magistrate. Once the Special Court  is established, the question of discharging the accused for the reasons that the charge-sheet is filed by incompetent Investigating Officer does not arise. The Trial Court misread the provisions of Special Act and has not considered Section 4 of the Cr.P.C.<br>10. The Investigating Officer committed mistake in filing common charge-sheet for the various crime registered in different Police Stations which is impermissible.<br>14. Therefore, the State-C.I.D. Police have no authority to file common charge-sheet in different complaints.  However, the Investigating Officer has to file separate charge- sheet against each crime registered by the Police  on individual complaint. Thereafter, the Special Court shall take cognizance of the offences both punishable under the IPC and the Special Act by following the Cr.P.C. and dispose of the matter in accordance with law. So far as on the report of the Competent Authority, it has to be submitted to the State Government and later, the Trial Court on the report of the Competent Officer to attach or seize the properties and investments under Section 3 of the Act for the purpose of protecting the interests and refunding the money to the investors as per Section 12 of the Act.<br>16. Accordingly, the petition is allowed. The order dated 8-8-2016 passed by the Principal District and Sessions Judge, Mysuru, in Crime No.116 of 2013 is hereby quashed. Discharging the accused is hereby set aside.<br>17. Further, the Special Court is directed to return the charge-sheet to the Investigating Officer in order to file separate charge-sheet in respect of the each individual complaints and thereafter, the Trial Court shall proceed in accordance with law.<br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br><br></h4><p><br></p>', 'a270950db71e2512b6d7775c2dee5394.jpg', '46724451a26b7705f244ba407b59e022.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-31', 1, '', '', '2021-06-04 22:37:09', '2021-06-04 22:51:11'),
(802, 'T1TxfItq0N90hp2Ro0DGRwmke', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'C.P.C. Order 39 Rules 1 and 2. Grant of temporary injunction restraining usage of confidential information of plaintiff by defendant. Principles summarised. Karnataka High Court. 3 June 2021. ', '<h4 style=\"margin: 9.15pt 23.55pt 0.0001pt 6px; line-height: 42px;\">Kenrise Media and others vs Ashish K Mishra and others.</h4><h4 style=\"margin: 9.15pt 23.55pt 0.0001pt 6px; line-height: 42px;\">Company Appeal 37 of 2020 decided on 3 June 2021. </h4><h4 style=\"margin: 9.15pt 23.55pt 0.0001pt 6px; line-height: 42px;\">Chief Justice Abhay S. Oka and Justice Sachin Shankar Magadum.</h4><h4 style=\"margin: 9.15pt 23.55pt 0.0001pt 6px; line-height: 42px;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/386098/1/COMAP37-20-03-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/386098/1/COMAP37-20-03-06-2021.pdf</a></h4><h4 style=\"margin: 9.15pt 23.55pt 0.0001pt 6px; line-height: 42px;\"><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: By this appeal under sub-section (1A) of Section 13 of the Commercial Courts Act, 2015 read with Rule 1(r) of Order XLIII of the Code of Civil Procedure, 1908 (for short ‘the CPC’), the appellants who are the original plaintiffs have taken an exception to the Judgment and order dated 22nd October, 2020 passed by the learned LXXXIII Additional City Civil and Sessions Judge (CCH-84) at Bengaluru in the commercial original suit No.362/2019. By the said Judgment and order, Interlocutory Applications (IA) II, III, and IV filed by the appellants under Rules 1 and 2 of Order XXXIX of CPC, for grant of temporary injunction have been rejected.</h4><h4 style=\"margin: 9.15pt 23.55pt 0.0001pt 6px; line-height: 42px;\">39. The first question which will have to be considered is about the breach of confidentiality. For the purposes of deciding the said question, we will have to consider the issue what constitutes a confidential information. A leading decision of the British Court on this aspect is in the case of Coco –vs- A.N. Clark (Engineers) Limited (1968) F.S.R. 415 which is relevant for our consideration. The High Court of Justice – Chancery Division  was dealing a case where interlocutory injunction was sought against the defendants from misusing information communicated to them in confidence for the purposes of the joint venture. In the said decision, his Lordship Justice Megarry dealt with what are the elements of confidential information.</h4><h4 style=\"margin: 9.15pt 23.55pt 0.0001pt 6px; line-height: 42px;\">40. The learned Single Judge of Delhi High Court, in the case of Diljeet Titus, Advocate –vs- Alfred A. Adebare and others 2006 SCC OnLine Del 551 = (2006) 130 DLT 330 quoted the observations made in the aforesaid decision of the British Court in the case of Coco (supra) with approval in paragraph-30 in his Judgment. Thus, information cannot be termed as a confidential information merely because it is claimed by a party. As observed in the case of Coco (supra), the information must “have the necessary quality of confidence about it”. </h4><h4 style=\"margin: 9.15pt 23.55pt 0.0001pt 6px; line-height: 42px;\"><b style=\"background-color: rgb(255, 255, 0);\">(1) If the information is a public property and is in public knowledge and such information is shared, it cannot be said it will lead to a breach of confidence. </b></h4><h4 style=\"margin: 9.15pt 23.55pt 0.0001pt 6px; line-height: 42px;\"><b style=\"background-color: rgb(255, 255, 0);\">(2) Secondly, that information must have been imparted in circumstances importing an obligation of confidence. In a given case, the obligation of confidence need not be express but it can be implied. </b></h4><h4 style=\"margin: 9.15pt 23.55pt 0.0001pt 6px; line-height: 42px;\"><b style=\"background-color: rgb(255, 255, 0);\">(3) Thirdly, there must be an unauthorized use of that information to the detriment of the aggrieved party or to the detriment of a third party whom the aggrieved party wishes to protect. </b></h4><h4 style=\"margin: 9.15pt 23.55pt 0.0001pt 6px; line-height: 42px;\">41.The main contention of the appellants is that the information contained in the document (Excel sheets) styled as “Daily Total” contains confidential information.  The print out of  the said document has been placed on record in a sealed envelope. It is, therefore, necessary for this Court to firstly consider whether the said document styled as “Daily Total” contains any confidential  information.  We have  perused  the said document styled as “Daily Total” (document No.41).  Firstly, it contains the names of patrons of the first appellant. Another sheet contain the names of the corporate subscribers.  Thereafter, the remaining sheets contain the names of the articles published on the first appellant’s news platform, the names of its authors, the number of subscriptions generated (renewal and new) by the said articles and whether subscriptions were annual or quarterly. The details of the revenue have been also incorporated in it. Our attention is invited to a printout of web portal of the first appellant a copy of which is on page 678 in Volume-II of paper book. It shows the names of some of the patrons of the first appellant. Our attention is also invited to a copy of Restated Shareholder’s Agreement dated 23rd January, 2018 which is on page 234 of volume-II of the paper book. The names of existing and new investors along with their PAN numbers and addresses have been mentioned in Schedule-II to the said agreement. In parts-C and D of Schedule-III to the said agreement, the share holding details of the first appellant on the execution date and effective date have been incorporated. Parts C and D give the names of all the shareholders, the details of number of equity or preference shares held by them and percentage of their share holding. Therefore, prima facie, the names of the promoters and the names of the patrons were readily available and the same were never intended to be kept confidential. We must note here that the details such as the names of the existing and the new investors as well as the names of the shareholders and shareholding pattern are available in the Restated Share Holder’s Agreement. Therefore, these details cannot be said to be confidential at all. Now the question is whether the other contents of the excel sheet i.e sheet No.3 contains confidential document/information.</h4><h4 style=\"margin: 9.15pt 23.55pt 0.0001pt 6px; line-height: 42px;\">42...., the names of the articles  and the authors thereof are readily available on the website of the first appellant itself. Under such circumstances, it is very difficult to arrive at a prima facie conclusion that the said excel sheets (Document No.41) contain any confidential information.  Moreover, the appellants have not even prima facie demonstrated that any loss was caused to them due to the alleged act of the first respondent of revealing alleged confidential information in the excel sheets (Daily Total). It is not pleaded that any detriment  was caused to any third party whose interest the first appellant was interested in protecting. In any case, it is not pleaded and proved as to how the information was useful to any other media house or media industry.</h4><h4 style=\"margin: 9.15pt 23.55pt 0.0001pt 6px; line-height: 42px;\">43.Moreover, there is no material placed on record by the appellants to prima facie establish that the model of online platform of the first appellant is unique. The respondents have given instances of several news platforms based on subscription such as The Wall Street Journal, Business Standard, The Economic Times Prime, Bloomberg Quint etc. The appellants have not shown how their model is unique.</h4><h4 style=\"margin: 9.15pt 23.55pt 0.0001pt 6px; line-height: 42px;\">49.Before going into the next contention, it is necessary for us to make a reference to Section 27 of the Contract Act. </h4><h4 style=\"margin: 9.15pt 23.55pt 0.0001pt 6px; line-height: 42px;\">52.Under section 27 of the Contract Act, an agreement which contains a restraint clause, restraining a person from exercising a lawful profession, trade or business of any kind is void. There is one exception to the said rule. The exception is in a case where  a good-will of a business is sold. Only in such a case, an agreement to restrain such person from carrying on a similar business can be enforced.</h4><h4 style=\"margin: 9.15pt 23.55pt 0.0001pt 6px; line-height: 42px;\"> (i)The appeal is accordingly dismissed </h4><h4 style=\"margin: 9.15pt 23.55pt 0.0001pt 6px; line-height: 42px;\"><br></h4>', 'bac637e6a27f476c70fbf8ef42b2a460.PNG', '04306ef68d804e57f2aa0877f90232bf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-03', 1, '', '', '2021-06-05 00:54:14', '2021-06-05 01:38:12'),
(803, 'xRfYJs2uI7OB0svXTmlasSEe7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'C.P.C. Order 39 Rules 1 and 2. Grant of temporary injunction in the matter of strictly confidential information. Leading judgment of the Delhi High Court. 6 June 1987. ', '<h4>John Richard Brady and others vs Chemical Process Equipments P Ltd and another. </h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Reported in</span>: 1987 SCC OnLine Del 236 : AIR 1987 Del 372 : (1987) 32 DLT 61 (SN) : (1950-2000) Supp (1) PTC 263 J 1<br></h4><h4>High Court of Delhi. Justice Arun B. Saharya. <br>I.A. No. 2920 of 1986 in S.No. 930 of 1986<br>Decided on July 6, 1987.<br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: By this application under O. 39 Rr. 1 and 2 read with S. 151, C.P.C. plaintiffs have prayed for an ad interim injunction to restrain the Defendants from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in Machines that are substantial imitation and reproduction of the design, manuals and Drawings of the Plaintiffs Fodder Production Unit and thereby amounting to infringement of the Plaintiffs Copyright therein, or from dealing in those Machines made on the basis of information and knowhow disclosed to them by the Plaintiffs in conditions of strict confidence, and from doing any other thing as is likely to lead to passing off the Defendants\' products as those of the plaintiffs.<br>2. In the Suit, the Plaintiffs have sought permanent injunction to restrain the Defendants from infringing Copyright of the plaintiffs, from passing off Defendants\' products as those of the plaintiffs\', for rendition of accounts of profits, and for delivery up of ail infringing materials and articles etc.<br>17. The plaintiffs have invoked jurisdiction of this Court under S. 62(2) of the Copyright Act, 1957 (hereinafter referred to as the Act) on the plea that the plaintiffs carry on business in Delhi, within the local limits of the jurisdiction of this Court. This is denied by the Defendants. This is a mixed question of facts and law. It cannot be decided at this stage. Only averments made in the plaint can be seen at this stage. The plaintiffs have pleaded the necessary facts in the plaint to invoke territorial jurisdiction of this Court.<br>22. This is just the situation in which the Courts must enforce the general rules of equity and restrain breach of confidence as recommended in the leading Saltman\'s case, Saltman Engineering Coy. Ld., Ferotec Ld. and Monarch Engineering Coy. (MITCHAM) Ld. v. Campbell Engineering Coy., Ld. (1948) 65 RPC 203, by Patrick Hearn in his book the Business of Industrial Licensing, by Roskill, in Cranleigh Precision Engineering Ltd. v. Bryant 1966 RPC 81, by Lord Denning, M.R. in Seager v. Copydex Limited 1967 RPC 349 and also by S. Ranganathan J. of this Court in Konrad Wiedemann Gmbh and Co. v. Stan dard Castings P. Ltd..<br>This extract is taken from John Richard Brady v. Chemical Process Equipments P. Ltd., 1987 SCC OnLine Del 236 : AIR 1987 Del 372 : (1987) 32 DLT 61 : (1950-2000) Supp (1) PTC 263<br>24. Patrick Hearn, in his Book has dealt with this subject under the heading Secrecy. He also dealt with the principles laid down in Saltman\'s case (1948-65 RPC 203): It is pertinent to extract the portion from his book from page 112 to 115. It reads :—<br>“Secrecy The maintenance of secrecy which plays such an important part in securing to the owner of an invention the uninterrupted proprietorship of marketable know-how, which thus remains at least a form of property, is enforceable at law. That statement may now be examined in the light of established rules making up the law of trade secrets. These rules may, according to the circumstances in any given case, either rest on the principles of equity, that is to say the application by the Court of the need for conscientiousness in the course of conduct, or by the common-law action for breach of confidence which is in effect a breach of contract.<br>In considering these alternatives there are three sets of circumstances out of which proceedings may arise :<br>(a) where an employee comes into possession of secret and confidential information in the normal course of his work, and either carelessly or deliberately passes that information to an unauthorised person;<br>(b) where an unauthorised person (such as a new employer) incites such an employee to provide him with such information as has been mentioned above; and<br>(c) where, under a licence for the use of know-how, a licensee is in breach of a condition, either expressed in an agreement or implied from conduct, to maintain secrecy in respect of such know-how and fails to do so.<br>All these hypotheses fall within the general rules of equity and breach of confidence propounded in the leading Saltman case, Saltman Engineering Co. v. Cambell Engineering Co. (1948) RPC 203). The facts, as far as they matter here, were that Saltman Engineering owned confidential drawings concerning the design and construction of certain specialist tools. Through an agent they purported to contract with Campbell Engineering for the manufacture of some of these tools, and to that end they handed over the drawings. Cambell Engineering used these drawings for their own purposes. There was contention as to whether or not there had been a viable contract, and if not whether a breach of confidence could in law have occurred. In the Court of Chancery the Judge held that there was in fact no binding contract and thus no breach of confidence.<br>The Court of Appeal found that :<br>(a) there was such a contract as had been claimed, and that the documents provided by Saltman Engineering were confidential and known to be such by Campbell Engineering;<br>(b) apart from contract, there was an obligation of confidence resting on Campbell Engineering by the delivery of the drawings which they knew to be the property of Saltman Engineering, and which had been provided to them for a limited purpose, that is to say the manufacture of certain specific tools;<br>(c) a document may be confidential if it is the result of work done by its maker, even if the matter contained therein is public knowledge;<br>(d) this being so, Campbell Engineering had broken confidence by using documents for purposes other than those for which they had been delivered, and there was no agreement releasing them from the obligation of confidence; and<br>(e) Saltman Engineering was entitled to have the documents returned to them and to receive damages for the breach.<br>These bald findings are more specifically explained in the judgement of Lord Greene, then Master of the Rolls, which contains four important statements :<br>1. If two parties make a contract under which one of them obtains for the purpose of the contract, or in connection with it, some confidential matter then, even though the contract is silent on the matter of confidence, the law will imply an obligation to treat such confidential matter in a confidential way as one of the implied terms of the contract, but the obligation to respect confidence is not limited to cases where the parties are in confidential relationship.<br>2. If a defendant is proved to have used confidential information, obtained directly or indirectly, from a plaintiff, without the consent, express or implied, of the plaintiff, he will be guilty of an infringement of the plaintiffs rights.<br>3. It seems to me that it would not matter the least bit whether there was a contract; but contract or no contract, the defendants got those drawings into their hands knowing, or knowing shortly afterwards, that they belonged to Saltmans, that they were obviously confidential matter, and they knew that they had got them into their hands for a strictly limited purpose.<br>4. Information to be confidential must I apprehend, apart from contract, have the necessary quality of confidence about it, namely, it must not be something which is public property and public knowledge.<br>It is important to note that the word ‘information’ used in the last statement of the learned Master of the Rolls refers to know-how imparted by word of mouth, by letter or by demonstration. It does not refer to drawings or other such technical documents which are by their nature confidential whether or not a matter of public knowledge. This is on the established principle that the use of such drawings amounts to the unauthorised use of the labour of the person who has prepared them, and thus provides a ‘spring-board’ by which an infringer may obtain an unfair advantage over competitors.”<br>37. In these circumstances, no opinion can be finally expressed at this stage on the question of infringement of copyright claimed by the plaintiffs in drawings of Brady by the production of the Machine in question by the Defendants, but the plaintiffs have made out a strong prima facie case of infringement of their copyright, and of strict confidentiality under which specifications, drawings and other technical information about the FPU were supplied to the Defendants, which the Defendants will have to meet at the trial of the suit.<br>38. Balance of convenience is clearly in favour of grant of injunction to the plaintiffs. Unless the Defendants are restrained by grant of temporary injunction during pendency of the suit, irreparable injury and loss which cannot be estimated in terms of money, will be caused to the plaintiffs by the Defendants continuing to manufacture, sell or deal in their Machine which is a substantial reproduction in three dimentional form of the Drawings of the plaintiffs\' FPU in which Brady has copyright. It will also be in the interest of justice torestrain the Defendants from abusing the know-how, specifications, Drawings and other technical information regarding the plaintiffs\' FPU entrusted to them under express condition of strict confidentiality, which they have apparently used as a ‘spring-board’ to jump into the business field to the detriment of the plaintiffs. I find no substance in the plea of the Defendants that the plaintiffs have disentitled themselves from the grant of interim injunction by the alleged delay in seeking that relief from this Court. The plaintiffs instituted the present suit on 1st of May, 1986 and simultaneously sought interim injunction against the Defendants by the present application after the Defendants repudiated the claim of the plaintiffs by a detailed reply dated 23rd of January, 1986 to a notice dated 28th of November, 1985 by which the plaintiffs called upon the Defendants to immediately desist from infringing their rights sought to be protected by the suit. In view of Brady being a foreign national, the time taken in seeking relief from Court cannot be said to be unreasonable. Interim injunction was granted in British Northrop Limited v. Texteam Blackburn Limited, (1974) RPC page 57 by Megarry, L.J. in spite of there being a delay of about one year in the plaintiff\'s bringing action against the defendant. At page 79, it was observed “Finally, I turn to the more general considerations in relation to granting or withholding an injunction. Mr. Mervyn Devies relied on delay by the plaintiffs, both per se and as allowing the defendants\' activities to rank as part of the status quo. However, I do not think that there was enough delay to provide any bar to an injunction.<br>39. Therefore, the Defendants are hereby restrained from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in Machines that are substantial imitation and reproduction of the Drawings of the plaintiffs\' FPU or from using in any other manner whatsoever the know-how, specifications, Drawings and other technical information about the FPU disclosed to them by the plaintiffs till the final disposal of the suit.<br>40. Accordingly, the application is allowed with costs. Counsel\'s fee Rs. 2,500/-.<br>Application allowed.</h4>', 'f5e48b78f965a84e86722f737e4ede60.png', '7d30622194dfa58a297cb9a4badb6a8c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1987-06-06', 1, '', '', '2021-06-05 18:56:41', '2021-06-05 18:58:13');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(804, 'fIz2g1gRDsSa2peu5282RtUb6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'IPC. Section 124A. Citizen has right to criticize the Government so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. Supreme Court. reiterates. 3 June 2021', '<h4>Vinod Dua vs Union of India and others. </h4><h4>Writ Petition 154 of 2020 decided on 3 June 2021. </h4><h4>Justice Uday Umesh Lalit and Justice Vineet Saran. </h4><h4><span style=\"font-size: 1.3125rem; background-color: rgb(255, 255, 0);\">Judgment Link</span><span style=\"font-size: 1.3125rem;\">: <a href=\"https://main.sci.gov.in/supremecourt/2020/12755/12755_2020_33_1501_28058_Judgement_03-Jun-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/12755/12755_2020_33_1501_28058_Judgement_03-Jun-2021.pdf</a></span><br></h4><h4>33. These passages elucidate what was accepted by this Court in\r\npreference to the decisions of the Privy Council in Balgangadhar Tilak (1897) L.R. 25 I.A. 1. and in King-Emperor v. Sadashiv Narayan Bhalerao\r\n (1942) F.C.R. 38. The statements of\r\nlaw deducible from the decision in Kedar Nath Singh vs. State of Bihar (1962) Supp. 2 SCR 769 are as follows: -</h4><h4 style=\"margin-left: 25px;\">a) “the expression “the Government established by law” has\r\nto be distinguished from the persons for the time being\r\nengaged in carrying on the administration. “Government\r\nestablished by law” is the visible symbol of the State. The\r\nvery existence of the State will be in jeopardy if the\r\nGovernment established by law is subverted.”<br>b) “any acts within the meaning of Section 124-A which\r\nhave the effect of subverting the Government by bringing\r\nthat Government into contempt or hatred, or creating\r\ndisaffection against it, would be within the penal statute\r\nbecause the feeling of disloyalty to the Government\r\nestablished by law or enmity to it imports the idea of\r\ntendency to public disorder by the use of actual violence\r\nor incitement to violence.” <br>c) “comments, however strongly worded, expressing\r\ndisapprobation of actions of the Government, without\r\nexciting those feelings which generate the inclination to\r\ncause public disorder by acts of violence, would not be\r\npenal.”</h4><h4 style=\"margin-left: 25px;\">d) “A citizen has a right to say or write whatever he likes\r\nabout the Government, or its measures, by way of\r\ncriticism or comment, so long as he does not incite\r\npeople to violence against the Government established\r\nby law or with the intention of creating public disorder.”<br></h4><h4 style=\"margin-left: 25px;\">e) “The provisions of the Section 41 read as a whole, along\r\nwith the explanations, make it reasonably clear that the\r\nsections aim at rendering penal only such activities as\r\nwould be intended, or have a tendency, to create disorder\r\nor disturbance of public peace by resort to violence.”</h4><h4 style=\"margin-left: 25px;\">f) “It is only when the words, written or spoken, etc. which\r\nhave the pernicious tendency or intention of creating\r\npublic disorder or disturbance of law and order that the\r\nlaw steps in to prevent such activities in the interest of\r\npublic order.”</h4><h4 style=\"margin-left: 25px;\">g) “we propose to limit its operation only to such activities\r\nas come within the ambit of the observations of the\r\nFederal Court, that is to say, activities involving\r\nincitement to violence or intention or tendency to create\r\npublic disorder or cause disturbance of public peace.”\r\n <br></h4><h4>42. What was prevailing on 30.03.2020 was therefore clear and migrant workers in huge numbers were moving towards their hometowns/villages. In the circumstances, there would naturally be some apprehension about the shelter and food to be provided to them en-route. The former Chief Statistician had expressed a possibility with the intent to invite the attention of the authorities. If the petitioner in his talk show uploaded on 30.03.2020, that is even before the matter was taken up by this Court, made certain assertions in his 5 th and 6th statement, he would be within his rights to say that as a Journalist he was touching upon issues of great concern so that adequate attention could be bestowed to the prevailing problems. It cannot be said that the petitioner was spreading any false information or rumours. It is not the case of the respondents that the migrant workers started moving towards their hometowns/villages purely as a result of the statements made by the petitioner. Such movement of migrant workers had begun long before. In the circumstances, these statements can neither be taken to be an attempt to incite migrant workers to start moving towards their hometowns or villages nor can it be taken to be an incitement for causing any food riots.The situation was definitely alarming around 30.03.2020 and as a journalist if the petitioner showed some concern, could it be said that he committed offences as alleged.</h4><h4>43. The Principles culled out in paragraph 33 hereinabove from the decision of Court in Kedar Nath Singh2 show that a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder; and that it is only when the words or expressions have pernicious tendency or intention of creating public disorder or disturbance of law and order that Sections 124A and 505 of the IPC must step in. In our view, the statements by the petitioner as mentioned hereinabove, if read in the light of the principles emanating from the decision in Kedar Nath Singh v. State of Bihar (1962) Supp. 2 SCR 769 and against the backdrop of the circumstances when they were made, can at best be termed as expression of disapprobation of actions of the Government and its functionaries so that prevailing situation could be addressed quickly and efficiently. They were certainly not made with the intent to incite people or showed tendency to create disorder or disturbance of public peace by resort to violence. The petitioner was within the permissible limits laid down in the decision of this Court in Kedar Nath Singh v. State of Bihar (1962) Supp. 2 SCR 769. It may be that certain factual details in the 3 rd statement regarding the date when the ban came into effect were not completely correct. However, considering the drift of the entire talk show and all the statements put together it cannot be said that the petitioner crossed the limits set out in the decision of this Court in Kedar Nath Singh v. State of Bihar (1962) Supp. 2 SCR 769</h4><h4>44. We are, therefore, of the firm view that the prosecution of the petitioner for the offences punishable under Sections 124A and 505 (1) (b) of the IPC3 would be unjust. Those offences, going by the allegations in the FIR and other attending circumstances, are not made out at all and any prosecution in respect thereof would be violative of the rights of the petitioner guaranteed under Article 19(1)(a) of the Constitution.</h4><h4>53. Consequently, we accept the first prayer made by the petitioner in this Writ Petition and quash FIR No.0053 dated 6.5.2020 registered at Police Station Kumarsain, District Shimla, Himachal Pradesh and any proceedings arising therefrom. We must however clarify that the issues concerning ownership of HW News which had aired the talk show or the nature and effect of violation, if any, of the Norms of Journalistic conduct framed by the Press Council of India, have not been gone into by us as they do not strictly are of any concern for determining first prayer made in the writ petition.</h4><h4>67. It must however be clarified that every Journalist will be entitled to protection in terms of Kedar Nath Singh v. State of Bihar (1962) Supp. 2 SCR 769 , as every prosecution under Sections 124A and 505 of the IPC3 must be in strict conformity with the scope and ambit of said Sections as explained in, and completely in tune with the law laid down in Kedar Nath Singh2 . </h4>', '883599a188b2a7c5db7b6cb55b6f18ff.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-03', 1, '', '', '2021-06-06 01:26:41', '2021-06-06 01:28:57'),
(805, 'SPQtj4yUoZFFfx2eNI92jetgu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constitution of India. Central Board of Secondary Education is \'State\' within the meaning of Article 12 and its byelaws have force of law under Article 12. The byelaws can be tested on the touchstone of the fundamental rights. Supreme Court. 3 June 2021', '<h4>Jigya Yadav vs Central Board of Secondary Education and others. </h4><h4>Civil Appeal 3905 of 2011 decided on 3 June 2021. </h4><h4>Justice A.M. Khanwilkar, Justice B.R.Gavai and Justice Krishna Murari. </h4><h4>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2011/12217/12217_2011_34_1501_28052_Judgement_03-Jun-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2011/12217/12217_2011_34_1501_28052_Judgement_03-Jun-2021.pdf</a></h4><h4>1. “What\'s in a name? that which we call a rose by any other name would smell as sweet”, said Juliet.&nbsp; This quote from WilliamShakespeare’s “Romeo and Juliet” is unarguably one of the most iconic dialogues in classical literature.&nbsp; It conveys that the natural characteristics of an individual are more important than his/her artificial/acquired characteristics.&nbsp; A poetic statement as it certainly is, it does not go in tune with the significance of a name in marking the identity of an individual in his/her societal transactions.&nbsp; To put it differently, name is an intrinsic element of identity.&nbsp;</h4><h4>2. The seminal issue in these cases is: whether an individual’s control&nbsp; over&nbsp; such cardinal element of identity could be denied to him/her by the Central Board of Secondary Education on the specious ground that its Examination Byelaws of 2007 must prevail over the claim of the candidate, which are merely intended to&nbsp; regulate such a claim and to delineate the procedure for correction/change in the contents of certificate(s) issued by it including regarding maintenance of its office records?&nbsp;</h4><h4>3. The CBSE Examination Byelaws restrict, both qualitatively and quantitatively, the corrections /changes that can be carried out in the certificates issued by the Board.&nbsp; Various students with needbased requests approached different High Courts resulting into inconsistent outcomes leading up to this batch of appeals. Apart from the fact that the judgments have produced conflicting outcomes, the petitions raise some peculiar questions on the&nbsp;constitutional validity of CBSE Examination Byelaws (as amended from time to time) and interpretation thereof.</h4><h4>98. Having gone through the elaborate set of submissions and documents on record in the respective matter, the following broad points emerge for our consideration:</h4><h4>(i) Whether the CBSE Examination Byelaws have the force of law?</h4><h4>(ii) Whether examination byelaws impose reasonable restrictions on the exercise of rights under Article 19 of the Constitution including fail the test of rationality for excessively restricting the scope of permissible corrections/changes?</h4><h4>(iii) Whether the Board is obliged to carry out corrections/changes in the certificates issued by it owing to correction/updation of public records/documents which have statutory presumption of genuineness?</h4><h4>(iv) Whether the examination byelaws in force on the date of examination conducted by CBSE or the date of consideration of the application for recording correction/change would be relevant?&nbsp; And, whether the effect of correction or change, as the case may be, will have retrospective effect from the date of issue of the original certificate?&nbsp;</h4><h4>(v) Whether writ of mandamus issued for effecting corrections in CBSE certificates can be in the teeth of explicit provisions in the examination byelaws, without examining validity of the byelaws? </h4><h4>99. Indubitably, the CBSE Board came to be established vide Government of India resolution dated 1.7.1929 with a view&nbsp; &nbsp;to “enable it to play a useful role in the field of Secondary Education” and “make services of the Board available to&nbsp; &nbsp;various educational institutions in the country”, as stated in the Constitution of the Board. Article 929 of the said Constitution deals with the “Powers and Functions of the Board”, which include to do all such things as may be necessary for furthering the objectives of&nbsp;the Board.&nbsp; One of the functions or so to say power of the Board is to make regulations for giving effect to the afore¬stated resolution as predicated in Article 1630&nbsp; of the Constitution.&nbsp; &nbsp;Clause (2) thereof envisages that the Regulation so framed may provide for conditions for issuing certificates for examination conducted by the Board.&nbsp; We may also take note of Article 1831 of the Constitution of the Board, which makes it amply clear that the byelaws to be framed by the Board&nbsp; &nbsp;ought&nbsp; &nbsp;to&nbsp; &nbsp;be&nbsp; &nbsp;consistent&nbsp; &nbsp;with&nbsp; and&nbsp; &nbsp;subservient&nbsp; &nbsp;to&nbsp; &nbsp;the Regulations and the Resolution establishing the Board.&nbsp; This Article also indicates that byelaws may be made for the purposes referred to&nbsp; &nbsp;in&nbsp; &nbsp;clauses&nbsp; &nbsp;(a)&nbsp; &nbsp;to&nbsp; &nbsp;(c)&nbsp; &nbsp;pertaining&nbsp; &nbsp;to&nbsp; &nbsp;procedural&nbsp; &nbsp;aspects. Indisputably, the constitution/organisation or structure of CBSE is&nbsp;not backed by a statute.&nbsp; It is, therefore, a misnomer to characterise byelaws framed by the Board as statutory.&nbsp;</h4><h4>100. The real question is: whether byelaws so framed have the force of law?&nbsp; &nbsp;</h4><h4>101. To have the force of law, it must qualify the test predicated in Article 13 of the Constitution, else it would be mere contractual terms of engagement.&nbsp; &nbsp;For the nature of activities undertaken by the Board including the powers and functions of the Board, it can be safely assumed that the Board is a State within the meaning of Article 12 of the Constitution of India and as a corollary thereof, its actions would be amenable to Part-III of the Constitution of India. The&nbsp; &nbsp;fact&nbsp; &nbsp;that&nbsp; &nbsp;the&nbsp; &nbsp;Board&nbsp; &nbsp;can&nbsp; &nbsp;be&nbsp; &nbsp;treated&nbsp; &nbsp;as&nbsp; &nbsp;a&nbsp; &nbsp;State&nbsp; &nbsp;within&nbsp; &nbsp;the meaning of Article 12 of the Constitution does not mean that the byelaws&nbsp; &nbsp;framed&nbsp; &nbsp;by&nbsp; &nbsp;it&nbsp; &nbsp;would&nbsp; &nbsp;necessarily&nbsp; &nbsp;become&nbsp; &nbsp;law&nbsp; &nbsp;within&nbsp; &nbsp;the meaning of Article 13 of the Constitution of India.&nbsp; &nbsp;Only a “law” under Article 13 can be reckoned as a restriction in respect of rights guaranteed under Article 19 of the Constitution. 102. Before we proceed to analyse any further, it would be apposite to reproduce Article 13 of the Constitution of India to answer the point under consideration.&nbsp;</h4><h4>103. The tenor of Article 13 clearly suggests that it was not enacted to restate the obvious proposition that all statutory laws are “laws” in any legal system.&nbsp; &nbsp;For, it requires no restatement that laws enacted by the legislature are “laws”.&nbsp; &nbsp;The underlying purpose of defining&nbsp; &nbsp;“law”&nbsp; &nbsp;under&nbsp; &nbsp;Article&nbsp; &nbsp;13&nbsp; &nbsp;is&nbsp; &nbsp;to&nbsp; &nbsp;encompass&nbsp; &nbsp;a&nbsp; &nbsp;practical administrative reality that there can be laws other than ordinary statutory laws.&nbsp; It, therefore, takes within its sweep those matters (declaration in the form of Byelaws in this case) as having the “force of law” albeit not enacted by the legislature as such.</h4><h4>104. For, it defines “law” to include ordinances, orders, byelaws, rule,&nbsp; &nbsp;regulation&nbsp; &nbsp;or&nbsp; &nbsp;notification&nbsp; &nbsp;issued/made&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;State.&nbsp; &nbsp; &nbsp;The precise meanings of these terms cannot be confined in the rigidity of language and the same is neither desirable nor required in the present case.&nbsp;</h4><h4>105. The examination revolves around the expression “having&nbsp; &nbsp;in the&nbsp; &nbsp;territory&nbsp; &nbsp;of&nbsp; &nbsp;India&nbsp; &nbsp;the&nbsp; &nbsp;force&nbsp; &nbsp;of&nbsp; &nbsp;law”,&nbsp; irrespective&nbsp; &nbsp;of&nbsp; &nbsp;the packaging in which the said provision is formally couched. The text impels us to focus on the substance of the provision, and not its form. Broadly speaking, law made by State refers to a body of rules which shapes the rights and liabilities of persons in a universal sense as opposed to a private transaction between parties. Such law has the ability to bind people by providing for all prominent aspects of&nbsp; &nbsp;their&nbsp; &nbsp;conduct&nbsp; &nbsp;as&nbsp; &nbsp;the&nbsp; &nbsp;subjects&nbsp; &nbsp;of&nbsp; &nbsp;law. Therefore,&nbsp; &nbsp;any rule/notification/order/byelaw&nbsp; &nbsp;issued/made&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;State&nbsp; &nbsp;or&nbsp; &nbsp;its instrumentalities would have the force of law and bind all entities subjected to it and operates as a code of conduct to regulate their functioning.&nbsp; &nbsp;Yet&nbsp; &nbsp;another&nbsp; &nbsp;crucial&nbsp; &nbsp;characteristic&nbsp; &nbsp;would&nbsp; &nbsp;be enforceability in a court of law. Needless to observe, we are not talking about binding codes or set of rules decided by parties for themselves as they fall under the realm of law of contract. We are dealing with rules which flow from the instrumentality of the “State” during the performance of essential public functions.&nbsp;</h4><h4>106. CBSE,&nbsp; &nbsp;despite&nbsp; &nbsp;being&nbsp; &nbsp;packaged&nbsp; &nbsp;as&nbsp; &nbsp;a&nbsp; &nbsp;registered&nbsp; &nbsp;society,&nbsp; &nbsp;is performing an essential public function for the government since its establishment in 1929.... The principles associated with a public function deducible from the above analysis can be illustratively culled out as follows:</h4><h4>a. Extension of collective benefit to public by a public authority;&nbsp; &nbsp;</h4><h4>b. Participation in&nbsp; social&nbsp; or economic affairs including health, education, social services etc.; c.&nbsp; &nbsp;Private&nbsp; &nbsp;bodies&nbsp; &nbsp;or&nbsp; &nbsp;charitable&nbsp; &nbsp;institutions&nbsp; &nbsp;performing public&nbsp; &nbsp;functions&nbsp; &nbsp;could&nbsp; &nbsp;also&nbsp; &nbsp;be&nbsp; &nbsp;regulated&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;same manner as a public authority.&nbsp;</h4><h4>In the school education structure as we have it, there are state government boards limited to respective states.&nbsp; There are central boards&nbsp; &nbsp;having&nbsp; &nbsp;its&nbsp; &nbsp;area&nbsp; &nbsp;of&nbsp; &nbsp;operation&nbsp; &nbsp;throughout&nbsp; &nbsp;India,&nbsp; &nbsp;namely, Council for the Indian School Certificate Examinations (ICSE), a private board; International Baccalaureate (IB), formerly known as International&nbsp; &nbsp;Baccalaureate&nbsp; &nbsp;Organization&nbsp; &nbsp;(IBO)&nbsp; &nbsp;a&nbsp; &nbsp;non¬profit foundation/organization&nbsp; &nbsp;having&nbsp; &nbsp;headquarter&nbsp; &nbsp;in&nbsp; &nbsp;Geneva, Switzerland; and CBSE.</h4><h4>107. CBSE is the only central body for conducting examinations in the country created by a resolution of the Central Government.&nbsp; All the bodies constituted at various levels are working in the direction of&nbsp; &nbsp;just&nbsp; &nbsp;educational&nbsp; &nbsp;governance.&nbsp; &nbsp; &nbsp;Article&nbsp; &nbsp;41&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Constitution, couched as a directive, is the source behind the basic functioning of the CBSE Board as it secures nothing but right to education.&nbsp; It is participating in educational affairs which form an intrinsic part of social affairs. The CBSE Board is a public authority functioning in public interest for the performance of a public function.&nbsp;</h4><h4>108. We may gainfully refer to the Constitution of the Board which reaffirms the public character of the Board as the ultimate control over the functioning of the Board is exercised by the Ministry of Education (now Ministry of Education &amp; Social Welfare)</h4><h4>109. Reverting to the CBSE Examination Byelaws, the same are couched in the form of a code.&nbsp; &nbsp; &nbsp;They provide for all essential aspects&nbsp; &nbsp;relating&nbsp; &nbsp;to&nbsp; &nbsp;formal&nbsp; &nbsp;education&nbsp; &nbsp;of&nbsp; &nbsp;a&nbsp; &nbsp;student&nbsp; &nbsp;including admission,&nbsp; &nbsp;examination,&nbsp; &nbsp;migration,&nbsp; &nbsp;transfer,&nbsp; &nbsp;curriculum,&nbsp; &nbsp;fee&nbsp; &nbsp;for various services, issuance of verified certificates, modifications in certificates etc.&nbsp; This Byelaws, therefore, bind the parties and are duly enforceable in a court of law, even by way of writ remedies as we have seen in the present batch of petitions.</h4><h4>110. To put it differently, the Byelaws of the Board have the force of law and must be regarded as such for all legal purposes.&nbsp; It would serve no meaningful purpose to hold these authoritative set of rules originating from an instrumentality of the State as mere contractual terms despite there being overwhelming public interest in their just application.</h4><h4>111. The&nbsp; &nbsp;argument&nbsp; &nbsp;that&nbsp; &nbsp;Byelaws&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Board&nbsp; &nbsp;are&nbsp; &nbsp;contractual elements as CBSE is a registered society unbacked by a statute cannot be accepted for at least four reasons – first, CBSE is not a private corporate body.&nbsp; It is a juristic person and a “State” within the meaning of Article 12, which in itself warrants its amenability to the&nbsp; &nbsp;courts&nbsp; &nbsp;including&nbsp; &nbsp;constitutional&nbsp; &nbsp;writ&nbsp; &nbsp;courts;&nbsp; second,&nbsp; &nbsp;the functions performed by the CBSE Board are public functions and not private functions; third, the test of “force of law” takes within its sweep the nature of rule, its authoritative impact on the subjects, nature of function performed by the rule making body, the origin of the body, the binding value of the rules, existence of any competing set of rules and&nbsp; fourth, absence of statute does not automatically render the rules to be contractual terms, as already observed.&nbsp;</h4><h4>112. As in the ultimate analysis, the Byelaws operate as law, the scrutiny of this Court cannot be undermined by giving them an artificial colour.&nbsp; For a student enrolled with the CBSE, there is no other body of rules but the subject Byelaws for dealing with all significant aspects of her education.&nbsp; &nbsp;By now it is an established tenet that even body corporates, co-operative societies, registered societies etc. can be declared as instrumentalities of the State, for the only reason that the outer form of organization must not be allowed to defeat the ultimate constitutional goal of protection of fundamental rights as and when they suffer at the hands of the State, directly or indirectly.&nbsp; &nbsp;The Court ought to intervene with circumspection even when the public body derives its authority from a government resolution.</h4><h4>113. We say so because there is an evolving body of jurisprudence enunciating that the principle of presumption of constitutionality attached with statutes ought not to be extended to subordinate legislations with the same vigour.&nbsp; &nbsp;For, the legislature enjoys the sacred backing of people’s will and naturally, every act of legislature is&nbsp; &nbsp;presumed&nbsp; &nbsp;to&nbsp; &nbsp;be&nbsp; &nbsp;constitutional.&nbsp; &nbsp; &nbsp;In&nbsp; &nbsp;other&nbsp; &nbsp;words,&nbsp; &nbsp;the&nbsp; &nbsp;Courts generally do not look upon duly enacted laws with suspicion at the first&nbsp; &nbsp;glance&nbsp; &nbsp;as&nbsp; &nbsp;they&nbsp; &nbsp;enjoy&nbsp; &nbsp;legal&nbsp; &nbsp;presumption&nbsp; &nbsp;of&nbsp; &nbsp;its&nbsp; &nbsp;validity. Nevertheless, circumspect intervention on the part of the Court is to advance constitutional protection for guarantees under Part¬III of the Constitution.</h4><h4>114. Arguendo,&nbsp; &nbsp;the&nbsp; &nbsp;Examination&nbsp; &nbsp;Byelaws&nbsp; &nbsp;are&nbsp; &nbsp;not&nbsp; &nbsp;“law”&nbsp; &nbsp;under Article 13, it would not affect the power of the Court to scrutinize them in reference to Part-III of the Constitution of India as CBSE is “State” within the meaning of Article 12 and all its actions are consequently subject to Part¬III.</h4><h4><br></h4><h4><br></h4><h4><br></h4><h4><br></h4><h4><br></h4><h4><br></h4><div><br></div>', '40f444d756537562f4cb2e6f3438223a.png', 'c11a0af275994657a0f282395a13fc36.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-03', 1, '', '', '2021-06-06 02:34:13', '2021-06-06 03:13:58'),
(806, 'OnyfidakAH1BSma3813PbQlqN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Education - Changes, corrections and updation of students\' particulars in Certificates issued by the Central Board of Secondary Education. Supreme Court issues directions. 3 June 2021.    ', '<h4>Jigya Yadav vs Central Board of Secondary Education and others.</h4><h4>Civil Appeal 3905 of 2011 decided on 3 June 2021.</h4><h4>Justice A.M. Khanwilkar, Justice B.R.Gavai and Justice Krishna Murari.</h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2011/12217/12217_2011_34_1501_28052_Judgement_03-Jun-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2011/12217/12217_2011_34_1501_28052_Judgement_03-Jun-2021.pdf</a></h4><h4><span style=\"font-size: 1.3125rem;\"><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: </span>2. The seminal issue in these cases is: whether an individual’s control  over  such cardinal element of identity could be denied to him/her by the Central Board of Secondary Education on the specious ground that its Examination Byelaws of 2007 must prevail over the claim of the candidate, which are merely intended to  regulate such a claim and to delineate the procedure for correction/change in the contents of certificate(s) issued by it including regarding maintenance of its office records? </h4><h4>3. The CBSE Examination Byelaws restrict, both qualitatively and quantitatively, the corrections /changes that can be carried out in the certificates issued by the Board.  Various students with needbased requests approached different High Courts resulting into inconsistent outcomes leading up to this batch of appeals. Apart from the fact that the judgments have produced conflicting outcomes, the petitions raise some peculiar questions on the constitutional validity of CBSE Examination Byelaws (as amended from time to time) and interpretation thereof.</h4><h4>98. Having gone through the elaborate set of submissions and documents on record in the respective matter, the following broad points emerge for our consideration:</h4><h4>(i) Whether the CBSE Examination Byelaws have the force of law?</h4><h4>(ii) Whether examination byelaws impose reasonable restrictions on the exercise of rights under Article 19 of the Constitution including fail the test of rationality for excessively restricting the scope of permissible corrections/changes?</h4><h4>(iii) Whether the Board is obliged to carry out corrections/changes in the certificates issued by it owing to correction/updation of public records/documents which have statutory presumption of genuineness?</h4><h4>(iv) Whether the examination byelaws in force on the date of examination conducted by CBSE or the date of consideration of the application for recording correction/change would be relevant?  And, whether the effect of correction or change, as the case may be, will have retrospective effect from the date of issue of the original certificate? </h4><h4>(v) Whether writ of mandamus issued for effecting corrections in CBSE certificates can be in the teeth of explicit provisions in the examination byelaws, without examining validity of the byelaws?</h4><h4><span style=\"font-size: 1.3125rem;\">169. Although   we   have   discussed   the   broad   issues   canvassed before   us,   in   the   ultimate   analysis   the   real  dispute   requiring resolution is about the nature of correction or change, as the case may be, permissible to be carried by the CBSE at the instance of the student including past student.  As noted earlier, broadly, two situations would arise.  </span></h4><h4><span style=\"font-size: 1.3125rem;\">170. The first is where the incumbent wants “correction” in the certificate   issued   by  the  CBSE  to   be  made   consistent   with   the particulars mentioned in the school records.  As we have held there is no reason for the CBSE to turn down such request or attach any precondition except reasonable period of limitation and keeping in mind the period for which the CBSE has to maintain its record under the extant regulations.  While doing so, it can certainly insist for compliance of other conditions by the incumbent, such as, to file sworn affidavit making necessary declaration and to indemnify the CBSE from any claim against it by third party because of such correction.  The   CBSE   would   be   justified   in   insisting   for surrender/return  of  the original  certificate (or  duplicate  original certificate, as the case may be) issued by it for replacing it with the fresh  certificate   to   be   issued   after   carrying   out  necessary corrections with  caption/annotation against the  changes carried out and the date of such correction.   It may retain the original entries as it is except in respect of correction of name effected in exercise of right to be forgotten.   The fresh certificate may also contain disclaimer that the CBSE cannot be held responsible for the genuineness of the school records produced by the incumbent in support of the request to record correction in the original CBSE certificate.  The CBSE can also insist for reasonable prescribed fees to be paid by the incumbent in lieu of administrative expenses for issuing   fresh   certificate.     At   the   same   time,   the   CBSE   cannot impose precondition of applying for correction consistent with the school records only before publication of results.  Such a condition, as we have held, would be unreasonable and excessive.  We repeat that   if   the   application   for   recording   correction   is   based   on   the school records as it obtained at the time of publication of results and issue of certificate by the CBSE, it will be open to CBSE to provide   for   reasonable   limitation  period   within   which   the application for recording correction in certificate issued by it may be entertained by it.  However, if the request for recording change is based on changed school records post the publication of results and issue of certificate by the CBSE, the candidate would be entitled to apply for recording such a change within the reasonable limitation period prescribed by the CBSE.   In this situation, the candidate cannot claim that she had no knowledge about the change recorded in the school records because such a change would occur obviously at her instance.  If she makes such application for correction of the school records, she is expected to apply to the CBSE immediately after the school records are modified and which ought to be done within a reasonable time.  Indeed, it would be open to the CBSE to reject the application in the event the period for preservation of official records under the extant regulations had expired and no record   of   the   candidate   concerned   is   traceable   or   can   be reconstructed.   In the case of subsequent amendment of school records, that may occur due to different reasons including because of choice exercised by the candidate regarding change of name.  To put   it   differently,   request   for   recording   of   correction   in   the certificate issued by the CBSE to bring it in line with the school records of the incumbent need not be limited to application made prior to publication of examination results of the CBSE.</span><br></h4><h4>171. As regards request for “change” of particulars in the certificate issued by the CBSE, it presupposes that the particulars intended to be recorded in the CBSE certificate are not consistent with the school records.   Such a request could be made in two different situations.  The first is on the basis of public documents like Birth Certificate, Aadhaar Card/Election Card, etc. and to incorporate change in the CBSE certificate consistent therewith.   The second possibility is when the request for change is due to the acquired name by choice at a later point of time.  That change need not be backed by public documents pertaining to the candidate. <br>(a) Reverting to the  first   category, as noted earlier, there is a legal presumption in relation to the public documents as envisaged in the 1872 Act.  Such public documents, therefore, cannot be ignored by the CBSE.  Taking note of those documents, the CBSE may entertain the request for recording change in the certificate issued by it.  This, however, need not be unconditional, but subject to certain reasonable conditions to be fulfilled by the applicant as may  be   prescribed   by   the   CBSE,  such  as,   of   furnishing   sworn affidavit containing declaration and to indemnify the CBSE and upon payment of prescribed fees in lieu of administrative expenses. The CBSE may also insist for issuing Public Notice and publication in the Official Gazette before recording the change in the fresh certificate to be issued by it upon surrender/return of the original certificate (or duplicate original certificate, as the case may be) by the applicant.   The fresh certificate may contain disclaimer and caption/annotation against the original entry (except in respect of change   of   name   effected   in   exercise   of   right   to   be   forgotten) indicating the date on which change has been recorded and the basis   thereof.     In   other   words,   the   fresh   certificate   may   retain original particulars   while   recording   the   change   along   with caption/annotation referred to above (except in respect of change of name effected in exercise of right to be forgotten).<br>(b) However, in the  latter   situation  where the change is to be effected on the basis of new acquired name without any supporting school record or public document, that request may be entertained upon insisting for prior permission/declaration by a Court of law in that   regard   and  publication   in   the   Official   Gazette   including surrender/return   of   original   certificate   (or   duplicate   original certificate, as the case may be) issued by CBSE and upon payment of   prescribed   fees.     The   fresh   certificate   as   in   other   situations referred to above, retain the original entry (except in respect of change of name effected in exercise of right to be forgotten) and to insert caption/annotation indicating the date on which it has been recorded and other details including disclaimer of CBSE.  This is so because   the   CBSE   is   not   required   to  adjudicate   nor   has   the mechanism to verify the correctness of the claim of the applicant.<br>172. In light of the above, in exercise of our plenary jurisdiction, we direct   the   CBSE   to   process   the   applications   for   correction   or change, as the case may be, in the certificate issued by it in the respective   cases   under   consideration.     Even   other   pending applications and future applications for such request be processed on the same lines and in particular the conclusion and directions recorded hitherto in paragraphs 170 and 171, as may be applicable, until amendment of relevant Byelaws.  Additionally, the CBSE shall take   immediate   steps   to   amend   its   relevant   Byelaws   so   as   to incorporate   the   stated   mechanism   for   recording   correction   or change, as the case may be, in the certificates already issued or to be issued by it.</h4><div><br></div>', 'cc21312c9262c143069fb1cedcbbdcbc.jpg', '156fbb252993753218b759b314166bf1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-03', 1, '', '', '2021-06-06 03:12:45', '2021-06-06 03:18:57'),
(807, 'nOisfdejRlqK6KwsSuiazAYex', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Finance Act, 1994. Service Tax can NOT be levied on food and drink that is \'taken away\' or collected from restaurants or eateries in parcels. Madras High Court. 20 May 2021 ', '<h4>Anjappar Chettinad and others vs Joint Commissioner, Office of the Commissioner of GST and Central Excise. </h4><h4>Writ Petition 13469 of 2020 and connected matters decided on 20 May 2021. Justice Dr. Anita Sumanth.&nbsp; &nbsp;</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: This batch of Writ Petitions involves an interesting question as to the liability to service tax under the Finance Act, 1994 (in short ‘Act’), on food that is ‘taken away’ or collected from restaurants or eateries, in parcels.<br>6. According to them, in parcel sales, there could be no artificial splitting of transactions between one of ‘service’ and one of ‘sale’ with the attempt to bring the same under the purview of the former. The petitioners rely on letter bearing No.DOF 334/3/2011-TRU dated 28.02.2011 which had, according to them, clarified that service tax is not intended to cover sale of food that is collected or picked up for consumption elsewhere.<br>7. Restaurant service, by definition means that all attributes of a restaurant such as organised seating, air-conditioning, service at the table, live music and enhanced hospitality are included. These attributes are absent in a transaction of take-away. In fact, service tax on restaurant services have itself been restricted only to service in air-conditioned restaurants.<br>8. The petitioners rely on the judgment of the Supreme Court in the case of Federation of Hotel and Restaurant Associations of India V. Union of India, (2018 (359) ELT 97 wherein the federation had sought a declaration that the provisions of the Standards of Weights and Measures Act, 1976 and allied enactments and rules were not applicable to services rendered in hotels/restaurants.<br>21. Service tax was initially levied on the sale of food and drink in all restaurants without exception and Entry 19 of Notification 25 of 2012 levied tax on services provided in relation to serving of food and beverages by a restaurant, eating joint or mess.<br>26. Thus, not all services rendered by restaurants in the sale of food and drink are taxable and it is only certain specified situations that attract tax. The sale of food and drink simplicitor, services of selection and purchase of ingredients, preparation of ingredients for cooking and the actual preparation of the food and drink would not attract the levy of tax. Only those services commencing from the point where the food and drinks are collected for service at the table till the raising of the bill, are covered. This would encompass a gamut of services including arrangements for seating, décor, music and dance, both live and otherwise, the services of Maître D’Or, hostesses, liveried waiters and the use of fine crockery and cutlery, among others. The provision of the aforesaid niceties are critical to the determination as to whether the establishment in question would attract liability to service tax, and that too, only in an air-conditioned restaurant.<br>27. In the case of take-away or food parcels, the aforesaid attributes are conspicuous by their absence. In most restaurants, there is a separate counter for collection of the take-away food parcels. Orders are received either over telephone, by e-mail, online booking or through a food delivery service such as swiggy or zomato. Once processed and readied for delivery, the parcels are brought to a separate counter and are picked up either by the customer or a delivery service. More often than not, the take-away counters are positioned away from the main dining area that may or may not be air-conditioned. In any event, the consumption of the food and drink is not in the premises of the restaurant. In the aforesaid circumstances, I am of the categoric view that the provision of food and drink to be taken-away in parcels by restaurants tantamount to the sale of food and drink and does not attract service tax under the Act.<br>In the light of the discussion as above, these Writ Petitions are allowed and the impugned orders quashed. No costs. Connected Miscellaneous Petitions are closed.</h4><p><br></p>', '7a466e7fb95db7428207f2172163a28e.jpg', 'f855ef47672f0ea52bd134fb733e47ef.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-20', 1, '', '', '2021-06-06 17:50:34', '2021-06-06 17:50:34');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2740, 'gMgj3OVRrFVX5pC0dIGt7Yr4b', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Merely because a particular evidence which ought to have been adduced but had not been adduced, the Appellate Court cannot adopt the soft course of remanding the matter. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sirajudheen Vs Zeenath and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1491 of 2023 decided on 27 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dinesh Maheshwari and Justice Sudhanshu Dhulia.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. This appeal is directed against the common judgment and order\r\ndated 28.06.2019, passed by the High Court of Kerala at Ernakulam insofar\r\nas relating to RFA No. 247 of 2014, whereby the appeal filed by the plaintiff\r\n(respondent No. 1 herein) against dismissal of her suit for cancellation of a\r\nsale deed and for prohibitory injunction was disposed of with directions to\r\nthe Trial Court to decide the suit afresh after de novo trial, essentially with\r\nthe observations that the evidence necessary for proper determination of\r\nthe suit had not been brought on record.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. In the impugned common judgment and order dated 28.06.2019,\r\nthe High Court has decided four appeals arising out of four different civil\r\nsuits but concerning the same contesting parties and involving inter-related\r\nissues. Though, the present appeal relates only to one of those appeals in \r\n2\r\nthe High Court, being RFA No. 247 of 2014 that arose from OS No. 293 of\r\n2012 in the Court of Subordinate Judge, Karunagapally (originally OS No.\r\n390 of 2006 in the Court of Subordinate Judge, Kollam) but, for a proper\r\ncomprehension of the facts, a brief reference to the subject-matter of the\r\nsaid four civil suits and findings therein shall be apposite. The relevant\r\nfactual and background aspects could thus be noticed, in brief, as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n3.1. The respondent No. 1 filed the subject civil suit (OS No. 293 of\r\n2012) against the present appellant as defendant No. 1 and other\r\nrespondents, her sisters, as defendant Nos. 2 to 5, for setting aside a sale\r\ndeed bearing No. 285 of 2006 dated 15.03.2006, registered in the Office of\r\nSub Registrar, Karunagapally.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.2. The suit schedule property, consisting of 54 Ares and 90 Sq. meters\r\nof land and the cinema theatre building thereupon, comprised in Block No.\r\n5, Resurvey No. 551/3 of Adinadu Village, Kulashekharapuram Panchayat,\r\nKarunagapally Taluk, Kollam District, was originally owned by father of the\r\nrespondents; and after his demise, the respondents and their mother\r\nexecuted a partition deed bearing No. 291 of 2003, whereby the suit\r\nschedule property was kept in joint possession and enjoyment of the\r\nrespondents. A partnership deed was also executed amongst the\r\nrespondents for running of the said cinema theatre and the husband of\r\nrespondent No. 1 was managing the cinema theatre named ‘Tharangam\r\ntheatre’ on behalf of the partners.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8.1. Though learned counsel for the parties have made a few\r\nsubmissions touching upon the merits of the case but, we would leave\r\nthose submissions concerning merits of the case at that only because the\r\nreal question calling for determination in this appeal is as to whether the\r\nHigh Court has been justified in remanding the matter for trial de novo?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. It could at once be noticed that in terms of Rule 33 of Order XLI\r\nCPC, the Appellate Court is empowered to pass any decree and to make\r\nany order which ought to have been passed or made; and which may be\r\nconsidered requisite in a case. While the said Rule 33 prescribes general\r\npowers of the Court of appeal, the specific powers of remand are\r\nprescribed in Rules 23 and 23-A of Order XLI CPC. Hence, for the purpose\r\nof the case at hand, reference to aforesaid Rule 33 remains inapposite.\r\nHaving said so, we may proceed to examine if the order of remand in the\r\npresent case could be justified with reference to the other referred\r\nprovisions of Order XLI CPC?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11.2. After having taken note of the salient features of the impugned\r\njudgment as also the significant omissions therein, if we refer to the\r\nprovisions empowering the Appellate Court to make an order of remand, it\r\nis difficult to find any justification for remand by the High Court in the\r\npresent case. As noticed, the scope of remand in terms of Rule 23 of Order\r\nXLI CPC is extremely limited and that provision is inapplicable because the\r\nsuit in question had not been disposed of on a preliminary point. The\r\nremand in the present case could only be correlated with Rule 23-A of\r\nOrder XLI CPC and for its applicability, the necessary requirements are\r\nthat “the decree is reversed in appeal and a re-trial is considered\r\nnecessary”. As noticed hereinabove, there is no reason whatsoever\r\navailable in the impugned judgment as to why and on what basis the decree\r\nwas reversed by the High Court. Obviously, the reversal has to be based\r\non cogent reasons and for that matter, adverting to and dealing with the\r\nreasons that had prevailed with the Trial Court remains a sine qua non.\r\nThus, remand in the present case cannot be held justified even in terms of\r\nRule 23-A of Order XLI CPC.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. On the facts of the present case and the nature of order passed by\r\nthe High Court, the enunciations and observations in the case of Sanjay\r\nKumar Singh (supra) are of no application whatsoever as none of the\r\nparties have sought any permission to adduce evidence nor the High Court <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">has specified as to what specific evidence was considered necessary to\r\nenable it to pronounce judgment or for any substantial cause. Moreover, it\r\ndoes not appear from the judgment of the High Court if the plaintiffrespondent No. 1 (appellant before the High Court), ever projected that the\r\nTrial Court did not allow her to produce any evidence that was sought to be\r\nproduced. It is also not borne out if any of the parties at all made out any\r\ncase for production of additional documents or oral evidence with reference\r\nto the applicable principles. Hence, the general observations of the High\r\nCourt cannot be correlated with Rule 27(1) either. With respect, we are\r\nconstrained to apply the observations of this Court in Municipal\r\nCorporation, Hyderabad (supra) to say that the present order of remand\r\nhas been passed only on ipse dixit of High Court sans any reason or\r\njustification.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. It gets perforce reiterated that in the suit filed by respondent No. 1,\r\nthe Trial Court had indeed returned its findings on the basis of evidence on\r\nrecord. Whether those findings are sustainable or not is a matter entirely\r\ndifferent and the High Court may examine the same but merely because\r\nthe High Court could not reach to a conclusion on preponderance of\r\nprobabilities, the evidence on record could not have been treated as\r\ninsufficient so as to not pronounce the judgment in terms of Rule 24 of\r\nOrder XLI CPC.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. In regard to the want of any particular evidence, we may observe in\r\nthe passing that if the Court finds any particular evidence directly within the \r\n20\r\ncontrol and possession of a party having not been produced, the necessary\r\nconsequences like those specified in illustration (g) to Section 114 of the\r\nEvidence Act3 may follow but, merely because a particular evidence which\r\nought to have been adduced but had not been adduced, the Appellate\r\nCourt cannot adopt the soft course of remanding the matter. We would\r\nhasten to observe that we are not commenting on the merits of the case\r\neither way. The observations herein are only to indicate that the remand of\r\nthe suit for trial de novo cannot be considered justified in the present case\r\nfrom any standpoint.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. For what has been discussed hereinabove, suffice it would be to\r\nsum up that for a few tentative observations about certain circumstances\r\nexisting in favour of the plaintiff and certain other circumstances existing in\r\nfavour of the defendants and then, with another observation that plaintiff\r\nwas a vital witness, the High Court was not justified in remanding the matter\r\nfor trial de novo without recording any finding if the plaintiff was prevented\r\nfrom examining herself or from adducing any other evidence as also\r\nwithout explaining as to on what ground the decree was being reversed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>16. Accordingly, and in view of the above, this appeal succeeds and is\r\nallowed. The impugned judgment and order dated 28.06.2019, insofar as\r\nrelating to RFA No. 247 of 2014 (pertaining to OS No. 293 of 2012), is set\r\naside; and the said appeal is restored for reconsideration by the High Court\r\nin accordance with law. The parties through their respective counsel shall\r\nstand at notice to appear before the High Court on 20.03.2023.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>17. Having regard to the circumstances, there shall be no order as to\r\ncosts of the present appeal.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '26294efb6ceb558a9a0bb782860040e2.jpeg', '01c711ab42515c1039b4f0702673d61e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-01', 1, '', '', '2023-02-28 13:53:40', '2023-03-01 06:14:26'),
(809, 'VxYZy26KAXkO53WurTtApa42C', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Judicial review. Court cannot sit in appeal over the wisdom of  the employer to prescribe qualification needed for a particular post depending upon the nature of duties. Karnataka High Court reiterates. 24 May 2021', '<h4>Bhagyashree D and others vs The State of Karnataka and others. </h4><h4>Writ Petition 14591 of 2015 decided on 24 May 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/383214/1/WP14591-15-24-05-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/383214/1/WP14591-15-24-05-2021.pdf</a></h4><h4>5. The learned counsel appearing for the petitioners Sri M. Narayana Bhat would submit that despite cadres of both the petitioners and Junior Meter Readers being different in terms of the Rules, they are persons who are less qualified as they hold the qualification of SSLC whereas the  petitioners  are  holders of the qualification of SSLC+ITI/ITC and placed in a pay scale of Rs.7950-16790 and Junior Meter Readers are placed in a pay scale of Rs.8480-20600. It   is his case that such disparity has resulted in gross injustice to Assistant Linemen – petitioners.<br>9....One common factor that runs through the stream of all the judgments rendered by the Apex Court, as afore- extracted, is the judgment in the case of P.U.Joshi (supra) which is reiterated time and again. Therefore, facts obtaining in the case at hand will have to be considered on the touchstone of  the  principles  laid down by the Apex Court in the case of P.U. Joshi.<br>10. The Apex Court, has in unequivocal terms, directed that questions relating to conditions of service including avenues of promotions, criteria to be fulfilled on such promotion, method of recruitment, eligibility criteria for promotion, pay scale attached to the post are all in the domain of policy of the employer, except in a case where the policy is so arbitrary that it violates Article 14 of the Constitution and without much ado, judicial interference in such cases is not called for. The Apex Court would further direct in the said case that addition or removal of qualification, abolition of posts, creation of posts, reconstitution and  re-structure  of posts would all be within the domain of policy. This view of the Apex Court is further reiterated in the judgment hereinabove.<br>11. The grievance of petitioners is that minimum qualification prescribed for Assistant Lineman and  that of Junior Meter Reader are entirely different. This Court would not and cannot sit in appeal over the wisdom of  the employer to prescribe qualification that is needed for a particular post depending upon the nature of duties that the employer wants from the hands  of  the personnel who get appointed to such posts. This Court would not pronounce on the grievance of the petitioners that their qualification for the post of Assistant Lineman is higher than that of Junior Meter Reader, both of  which, form feeder cadre for promotion to the cadre of Lineman.<br></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Judgments referred</span>: P.U. Joshi vs Accountant General (2003) 2 SCC 632, Official Liquidator vs Dayanand (2008) 10 SCC 1, T.N. Electricity Board vs T.N. Electricity Board Thozhilalar Aykkiya Sangam (2008)  3 SCC  359, Chandigarh Administration vs Usha Kheterpal Waie (2011) 9 SCC 645, State of Gujarat vs Arvindkumar T. Tiwari (2012) 9 SCC 545 </h4>', '6b626fcbecc770d333ee6430cda0670e.jpg', 'bbe476396fd01ac36249eac7b57dc055.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-24', 1, '', '', '2021-06-07 02:02:04', '2021-06-07 02:02:52'),
(810, 'cA82Orf6qOpoXE6tmoYtZiv8w', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land acquisition. Kharab lands falling under category \'A\' of the Karnataka Land Revenue Rules belong to landowners and not to Government. Landowners are entitled to compensation. Karnataka High Court reiterates. ', '<h4>Sadappa and another vs The General Manager, Upper Krishna Project and another. </h4><h4>Writ Petition 201641 of 2018 decided on 22 January 2020. </h4><h4>Justice Sachin Shankar Magadum</h4><h4><br>The top noted writ petitions are filed seeking writ of mandamus against the respondents to pass a supplementary award along with statutory benefits in respect of phot-kharab area being a part of lands bearing Sy.No.92/1+2+3 and Sy.No.92/1+2+2.<br></h4><h4>3. The contention of the petitioners before this Court  is  that   the   phot-kharab   area   measuring  30 guntas in each survey number is in fact ‘A’ kharab and would squarely fall under the provisions of Rule 21(2)(a) of the Karnataka Land Revenue Rules, 1996.<br></h4><h4>4. To buttress his argument, the counsel for the petitioners would rely on the Aakar bandh, which is placed before this Court at Annexure-B. On perusal of this Aakar bandh, it is evident that survey was carried out in the year 1965-66 and the phot-kharab, area is classified as ‘A’ kharab. Relying on this ‘A’ kharab, the petitioners counsel would submit to this Court that the authorities are required to pass a supplementary award even in respect of this portion, since it is a ‘A’ kharab land and the petitioners are the owners of the phot- kharab land.<br></h4><h4>8. This Hon’ble Court while dealing with this issue has relied on the decision in the case of Sadashivaiah and others v. State of  Karnataka  and others [ILR 2003 Karnataka 5088 made in W.P.Nos.7540 and 9155-9204/2001 etc., wherein it is held as under ;-<br></h4><h4 style=\"margin-left: 25px;\"><i>“31. The words Phut Kharab, therefore,  mean and have reference to a land which is included in an assessed survey number but which is unfit for cultivation. After coming into the force of the Karnataka Land Revenue Act, 1964 the word phut Kharab has been defined under Rule 21 (2) as under:-<br>“during the process of classification, land included as un-arable shall be treated as “Pot Kharab”. Pot Kharab land may be classified as follows.<br>(a) That which is classified as unfit for agriculture at the time of survey including the farm buildings or threshing flours of the holder;<br>(b) That which is not assessed because, (i) it is reserved or assigned for public purpose; (ii) it is occupied by a road or recognized footpath or by a tank or stream used by persons other than the holders for irrigation, drinking or domestic purpose; (iii) used as burial ground or cremation ground; (iv) assigned for villager potteries.<br>32. Therefore, it becomes clear if the land falls within the category of 21(2)(a) it is not a government land, it belongs to the ownership of the petitioners. If it falls under 21(2)(b) then it belongs to the government and the petitioners cannot have a claim over the said land. However,<br>when the petitioners claim that the said land falls within 21(2)(a) and therefore they are entitled to the compensation LAO proceeds on the assumption that it falls within Section 22(1)(b) and therefore they are not entitled to compensation as it belongs to the government and accordingly he has declined to pass any award. It is not in dispute that before arriving at such a conclusion the LAO has not given an opportunity to the petitioners in the enquiry under Section 11 of the Act to substantiate their contention. Without any such enquiry, without affording an opportunity to the petitioners he proceeds on the assumption that the said Kharab land falls within 22(1)(b) and therefore petitioners have no claim, as such the he has declined to pass the award. On that ground also, the impugned orders passed by the LAO cannot be sustained and is liable to be set aside.”</i><br></h4><h4 style=\"\">9. For the reasons stated supra, the writ petitions are disposed of. The respondents are directed to pass a supplementary award along with statutory benefits for the phot-kharab area being a part of land adjacent to the lands, which are acquired by the respondents. <br></h4>', 'dd075c41f56752dced0f2cf2dd9e9072.JPG', 'fcb2eb95f39d7c0d68a16e2f113425d7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-17', 1, '', '', '2021-06-07 02:18:56', '2023-01-17 10:40:37'),
(2574, 'C1bbZwVmJluIzDo4DB2LISTa2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Purchaser who acquires right, title or interest in the land subsequent to the acquisition proceedings and subsequent to passing of the award cannot question the acquisition proceedings. Supreme Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Delhi Development Authority Vs Beena Gupta (Dead) Through LRS and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 9287 of 2022 decided on 16 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">1. Feeling aggrieved and dissatisfied with the impugned\r\njudgment and order dated 01.11.2018 passed by the High\r\nCourt of Delhi at New Delhi in Writ Petition (Civil) No.3986\r\nof 2018 by which the High Court has allowed the said writ\r\npetition preferred by the respondent no.1 herein – original </span><span style=\"font-size: 12pt;\">writ petitioner and has declared that the acquisition with\r\nrespect to the land in question is deemed to have lapsed\r\nunder Section 24(2) of the Right to Fair Compensation and\r\nTransparency in Land Acquisition, Rehabilitation and\r\nResettlement Act, 2013 (hereinafter referred to as ‘the Act\r\n2013’), the Delhi Development Authority has preferred the\r\npresent appeal.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">2. At the outset, it is required to be noted that vide\r\nNotification dated 17.06.2005 issued under the provisions of\r\nSection 4 of the Land Acquisition Act, 1894 large tract of the\r\nland measuring about 200 Bighas falling in Village Mundaka\r\nwas sought to be acquired. A declaration under Section 6\r\nof the Act was issued and published thereafter on\r\n31.05.2006. In the present case the dispute is with respect\r\nto the land measuring 1 Bigha and 2 Biswas out of Khasra\r\nNo. 65/22/1. That, vide sale deed dated 17.06.2005, the\r\nsaid land was purchased by one Ashok Kumar and Raj\r\nKumar Sharma. Thereafter, vide order dated 01.08.2005, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the aforesaid persons came to be mutated in the revenue\r\nrecords. That thereafter vide GPA, Will, Affidavit, Agreement\r\nto sell and Receipt dated 11.05.2010 the aforesaid Raj\r\nKumar Sharma sold 275 sq. yrds. land, out of 11 Biswas\r\nowned by him, to respondent no.1 herein – original writ\r\npetitioner. Thus, the respondent no.1 – original writ\r\npetitioner can be said to be subsequent purchaser who\r\nacquired the right, title or interest in the land in question\r\nmuch after the land acquisition proceedings and the award\r\nwas declared, which was declared on 31.05.2007.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2.1 The respondent no.1 herein – original writ petitioner\r\nfiled the writ petition before the High Court to declare that\r\nthe acquisition with respect to the land in question is\r\ndeemed to have lapsed under Section 24(2) of the Act, 2013\r\non the ground that the compensation with respect to the\r\nland in question is not paid.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2.4 Even otherwise on merits also and in light of the\r\nsubsequent decision of the Constitution Bench of this Court\r\nin the case of Indore Development Authority versus\r\nManoharlal and others reported in (2020) 8 SCC 129 the\r\nimpugned judgment and order passed by the High Court\r\ndeclaring the acquisition with respect to the land in question\r\nis deemed to have lapsed is unsustainable.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2.7 Applying the law laid down by this Court in the case of\r\nIndore Development Authority (supra), on merits also the\r\nimpugned judgment and order passed by the High Court\r\ndeclaring that the acquisition with respect to land in\r\nquestion is deemed to have lapsed under Section 24(2) of the\r\nAct, 2013 is unsustainable.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. In view of the above and for the reason stated above\r\nthe present appeal succeeds. The impugned judgment and\r\norder passed by the High Court declaring that the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">acquisition with respect to the land is deemed to have lapsed\r\nunder Section 24(2) of the Act, 2013 is accordingly quashed\r\nand set aside. Consequently, the original writ petition filed\r\nby respondent no.1 filed before the High Court stands\r\ndismissed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\nPresent appeal is accordingly allowed. No costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '69a4dc0df2ec5899a7c19b4e4b4c340c.jpeg', '3d0e47504b0ed93bc861a914a5f944c9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-18', 1, '', '', '2023-01-17 12:38:39', '2023-01-18 16:45:39'),
(2680, 'M3lu7cUEG3iXQjSJgdWwteNog', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Customary divorce among Panchamasali Lingayats, though recognised under Section 29-2 of the Hindu Marriage Act, the same is required to be proved strictly in accordance with Section 60 of the Evidence Act. Karnataka High Court.', '<h4><b>Channabasappa vs Kotrabasappa.</b></h4><h4><b>Regular First Appeal 1042 of 2006 decided on 2 December 2020.</b></h4><h4><b>Justice Hemant Chandangoudar</b></h4><h4><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\"><b><br></b></span></h4><h4><b><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\">2.</span><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif); white-space: pre;\">	</span><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\">Plaintiff is in appeal. Plaintiffs filed the suit for partition and separate possession claiming their legitimate share in the suit schedule properties.&nbsp;</span><br></b></h4><h4><b><br></b></h4><h4><b>5. Defendants after service of summons appeared and filed written statement. In the written statement, it was contended that the marriage of defendant No.1 with plaintiff No.2 was dissolved by customary divorce.&nbsp;<br></b></h4><h4><b><br></b></h4><h4><b>10.The moot point for consideration in this appeal is, whether the defendants have proved that the marriage of plaintiff No.2 with defendant No.1 ended in customary divorce.<br>11.It is not in dispute that the parties to the suit belong to Lingayat Panchamasali Community and prevalence of customary divorce in their community. The customary divorce takes its validity from Section 29(2) of the Hindu Marriage Act, 1956, which reads thus:</b></h4><h4 style=\"margin-left: 25px;\"><b>“29(2) Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.”</b></h4><h4><b><br></b></h4><h4><b>12. A reading of Section 29(2) of the Act would indicate that the marriage can be dissolved by custom prevailing in their community without recourse to law. The Apex Court in the case of Shakuntala Bai and another vs. L.V.Kulkarni &amp; another reported in AIR 1989 SC 1359 at para 25 of its judgment has held thus:</b></h4><h4 style=\"margin-left: 25px;\"><b>“25. From the above evidence on record, appreciated in the light of the case law on the subject and the authoritative texts as discussed above relating to the custom of dissolution and Udiki form of marriage prevalent among the Lingayats who are a religious sect following teachings of Basava, we entertain no doubt that there has been ancient and unbroken customs of dissolution of marriage and serai Udiki marriage among the Panchamsale Lingayats which was already judicially noticed by the Courts, and that the marriage of the fourth defendant with Gurulingappa was proved to have been customarily dissolved and that she was subsequently legally married with Gurappa in the valid customary form of Udiki marriage, whereafter, she lived with Gurappa as husband and wife until Gurappa died, and that thereafter she enjoyed the family pension by dint of her being nominated as wife by Gurappa to the knowledge of all concerned. She was accepted by the community as wife of Gurappa even after his death. There is, therefore, no scope for declaring the marriage illegal posthumously.”<br></b></h4><h4><b><br></b></h4><h4><b>13.<span style=\"white-space: pre;\">	</span>Hence, the Apex Court has also recognised the customary divorce prevailing in the Panchamasali Lingayat Community.<br></b></h4><h4><b><br></b></h4><h4><b>14...Section 60 of the Indian Evidence Act mandates that there must be an evidence, who is the witness to the alleged customary divorce, who says that, he saw plaintiff No.2 removing ‘tali’ and handing it over to defendant No.1 in the presence of elderly people None of the witnesses to the alleged incident have&nbsp; spoken about the marriage of plaintiff No.2 with defendant No.1 ended in customary divorce....Since it is held that the marriage of plaintiff No.1 with defendant No.1 was not dissolved by way of customary divorce, it is held that the marriage of defendant No.1 with defendant No.2 was solemnised during the subsistence of marriage of plaintiff No.2 with defendant No.2 and defendant No.2 is the not the legally wedded wife of defendant No.1.</b></h4>', '67c0d93fad7984731c989e224613f49e.jpeg', '31c7f979a02633014588d89a06daace5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-15', 1, '', '', '2023-02-15 13:29:34', '2023-02-15 08:58:36'),
(3880, '1tEOA900ZL47oMXspa8De9yJa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'While granting permission to the Police to investigate non-cognizable offence, the Magistrate cannot simply issue police intimation without passing any order on the requisition. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rajashekhara and others vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 102630 of 2023 decided on 28 November 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Shivashankar Amarannavar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Petitioners have sought for quashing of entire\r\nproceedings in C.C.No.1586/2020 (Old Hubballi Police\r\nStation in Crime No.75/2020) registered for offences\r\npunishable under Sections 323, 504, 506 r/w Section 34 of\r\nIndian Penal Code (hereinafter referred to as ‘IPC’,\r\nfor brevity) pending on the file of the IV Additional Civil\r\nJudge and JMFC, Hubballi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Respondent No.2 has filed first information and\r\non the basis of the same, case came to be registered in\r\nN.C.No.2/2020 for offences punishable under Sections <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">323, 504, 506 r/w Section 34 of IPC. The Police SubInspector has sought permission of the jurisdictional\r\nMagistrate to register case and to conduct investigation as\r\nper his requisition dated 29.05.2020. After receiving the\r\nintimation dated 29.05.2023 from the IV Additional Civil\r\nJudge and JMFC, Hubballi, the case came to be registered\r\nin Crime No.75/2020 of Old Hubballi Police Station against\r\npetitioners for offences punishable under Sections 323,\r\n504, 506 r/w Section 34 of IPC. After investigation\r\ncharge sheet came to be registered against\r\npetitioners/accused Nos.1 to 3 for offences under Sections\r\n323, 504, 506 r/w Section 34 of IPC. On the basis of said\r\ncharge sheet case came to be registered against these\r\npetitioners in C.C.No.1586/2020 pending on the file of the\r\nIV Additional Civil Judge and JMFC, Hubballi. Petitioners\r\nhave sought for quashing of proceedings in the said case.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7..... <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">On perusal of the said intimation, the learned\r\nMagistrate has accorded permission to conduct raid. On\r\nperusal of the said requisition the Police Sub-Inspector has\r\nnot sought any permission to conduct raid. The said\r\nrequisition contains intimation regarding incident\r\nhappened on 28.05.2020 and receipt of complaint filed by\r\none Sri Basavaraj S/o Sangappa Tongali. Even in the said\r\nintimation the learned Magistrate has referred to the case\r\nof the Vaggeppa Gurulinga Jangaligi Vs State of\r\nKarnataka and directed to the Police to follow the\r\nguidelines issued in the said case by this Court. Directions\r\nissued by this Court in the case of the Vaggeppa </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Gurulinga Jangaligi Vs State of Karnataka reads as\r\nunder\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>“i) The Jurisdictional Magistrates shall stop hereafter\r\nmaking endorsement as ‘permitted’ on the police\r\nrequisition itself. Such an endorsement is not an\r\norder in the eyes of law and as mandated\r\nunder Section 155(2) of Cr.P.C.\r\ni) When the requisition is submitted by the informant\r\nto the Jurisdictional Magistrate, he should\r\nmake an endorsement on it as to how it was\r\nreceived, either by post or by Muddam and direct\r\nthe office to place it before him with a separate\r\norder sheet. No order should be passed on the\r\nrequisition itself. The said order sheet should be\r\ncontinued for further proceedings in the case.</i></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>ii) When the requisition is submitted to the\r\nJurisdictional Magistrate, he has to first examine\r\nwhether the SHO of the police station has\r\nreferred the informant to him with such\r\nrequisition.</i></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">iii) The Jurisdictional Magistrate should examine\r\nthe contents of the requisition with his/her\r\njudicious mind and record finding as to whether\r\nit is a fit case to be investigated, if the\r\nMagistrate finds that it is not a fit case to\r\ninvestigate, he/she shall reject the prayer made in\r\nthe requisition. Only after his/her subjective </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">satisfaction that there is a ground to permit the\r\npolice officer to take up the investigation, he/she\r\nshall record a finding to that effect permitting\r\nthe police officer to investigate the non-cognizable\r\noffence.</span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>iv) In case the Magistrate passes the orders\r\npermitting the investigation, he/she shall specify\r\nthe rank and designation of the Police Officer\r\nwho has to investigate the case, who shall be\r\nother than informant or the complainant.”</i></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. There is no compliance of direction No.2 by the\r\nlearned Magistrate. The learned Magistrate has not\r\nopened separate order sheet for passing an order on said\r\nrequisition. The learned Magistrate has also not continued\r\nthe said order sheet for further proceedings in the case,\r\neven though the learned Magistrate is aware of directions\r\nissued by this Court in the case of the Vaggeppa\r\nGurulinga Jangaligi Vs State of Karnataka. The\r\ndirection No.2 is not complied. Even there is no\r\ncompliance of direction Nos. 3 and 4 by the learned\r\nMagistrate. The learned Magistrate simply issued police\r\nintimation without passing any order on the requisition.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Therefore, absolutely there is no application of\r\njudicious mind by the learned Magistrate before permitting\r\nthe police to investigate non-cognizable offences.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0b9d68b5a7795c82e27aa40480971857.JPG', 'b42b8d68a87e0b5e22defc03e56b69b7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-12-12', 1, '', '', '2023-12-11 12:57:06', '2023-12-12 03:22:06'),
(813, '7V1LctiQC91DkdZsAjy2h5mBc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Tender. Unilateral cancellation of Letter of Intent after its acceptance, execution of agreement and issuance of work order is illegal. Reasons for cancellation must be reflected in the order and cannot be supplemented later. Karnataka HC. 19:5:2021', '<h4>M/s. Nsure Reliable Power Solutions Pvt Ltd. vs Hubli Electricity Supply Company Ltd and another. </h4><h4>Writ Petition 114450 of 2019 decided on 19 May 2021 </h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Judgment Link</span>: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/386206/1/WP114450-19-19-05-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/386206/1/WP114450-19-19-05-2021.pdf</a><br>7. The invitation of bids and participation of petitioner in the tender process and petitioner being declared as successful bidder is not in dispute. It is also not in dispute that the petitioner was issued with letter of intent by Respondent notifying the intention to award work in favour of petitioner subject to acceptance by petitioner. Petitioner accepted letter of intent by communication dated 14.3.2018 and also contract agreement was executed in favour of petitioner and also detailed work order was issued to the petitioner respectively on 28.3.2018. The letter of intent was issued on 7.3.2018 and the same was received by the petitioner on 14.3.2018. The performance bank guarantee was furnished by petitioner on 17.3.2018 and contract agreement was executed on 27.3.2018 from the date of issuance of letter of intent. The respondents acted upon the bank guarantee furnished by the petitioner and also the contract agreement executed in favour of petitioner by issuing the detailed work award on 28.3.2018. When the things stood thus, the 2nd respondent unilaterally cancelled the letter of intent on the premise that the petitioner has not furnished the bank guarantee and executed contract agreement after fifteen days as specified in the letter of intent. The reasons assigned by respondent in cancelling letter of intent is on the face of it illegal and arbitrary since the petitioner had furnished bank guarantee<br>and executed contract work agreement within fifteen days as specified in the letter of intent. <br>8. The respondents in its statement of objections has taken up a defence that in the meeting of Board of Directors held on 21.7.2018 after considering the opinion of Government of India has resolved to cancel the letter of intent. The only reason assigned for cancelling the letter of intent is that the petitioner has not furnished bank guarantee and executed the contract agreement within fifteen days and due to non-approval of the project by government of Karnataka. The Apex Court in the decisions relied upon by the petitioner (supra) has held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. In the instant case, the impugned communication issued by respondent No.2 which on the face of it is illegal and cannot be validated by additional grounds later brought out.<br>12. For the aforesaid discussions, the impugned communication issued by respondent No.2 is held to be illegal and in violation of Articles 14 of the Constitution of India. <br>i) Writ petition stands allowed.<br><br><br><br></h4><p><br></p>', 'ff97a2029817edb87431f58790594894.jpg', '6dd73bb4f1fd894f97606e92ee97af8f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-19', 1, '', '', '2021-06-08 00:52:26', '2021-06-08 00:55:21');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(814, 'oI4EoOnOgmimYZPkeWnTQ558K', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Important Judgments on \'Lis Pendens\'. Section 52, Transfer of Property Act. ', '<h4><span style=\"background-color: rgb(255, 255, 0);\"><b>Raj Kumar v. Sardari Lal, (2004) 2 SCC 601 at page 605</b></span><br>5. The doctrine of lis pendens expressed in the maxim “ut lite pendente nihil innovetur” (during a litigation nothing new should be introduced) has been statutorily incorporated in Section 52 of the Transfer of Property Act, 1882. A defendant cannot, by alienating property during the pendency of litigation, venture into depriving the successful plaintiff of the fruits of the decree. The transferee pendente lite is treated in the eye of the law as a representative-in-interest of the judgment-debtor and held bound by the decree passed against the judgment-debtor though neither has the defendant chosen to bring the transferee on record by apprising his opponent and the court of the transfer made by him nor has the transferee chosen to come on record by taking recourse to Order 22 Rule 10 CPC. In case of an assignment, creation or devolution of any interest during the pendency of any suit, Order 22 Rule 10 CPC confers a discretion on the court hearing the suit to grant leave for the person in or upon whom such interest has come to vest or devolve to be brought on record. Bringing of a lis pendens transferee on record is not as of right but in the discretion of the court. Though not brought on record the lis pendens transferee remains bound by the decree.<br>9. A decree passed against the defendant is available for execution against the transferee or assignee of the defendant judgment-debtor and it does not make any difference whether such transfer or assignment has taken place after the passing of the decree or before the passing of the decree without notice or leave of the court.<br><b style=\"background-color: rgb(255, 255, 0);\">Guruswamy Nadar v. P. Lakshmi Ammal, (2008) 5 SCC 796 at page 800</b><br>13. Normally, as a public policy once a suit has been filed pertaining to any subject-matter of the property, in order to put an end to such kind of litigation, the principle of lis pendens has been evolved so that the litigation may finally terminate without intervention of a third party. This is because of public policy otherwise no litigation will come to an end. Therefore, in order to discourage that same subject-matter of property being subjected to subsequent sale to a third person, this kind of transaction is to be checked. Otherwise, litigation will never come to an end.<br><b style=\"background-color: rgb(255, 255, 0);\">T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342 : (2017) 3 SCC (Civ) 666 : 2017 SCC OnLine SC 263 at page 372</b><br>30. A preliminary objection has been raised on behalf of the respondents as to very applicability of doctrine of lis pendens to Mohammedan law based upon provisions contained in Section 2 of the TP Act. Repeal of Acts, saving of certain enactments, incidents, rights, liabilities, etc …..and nothing in the second chapter of this Act shall be deemed to affect any rule of Muhammadan law.”<br>No doubt about it that Section 2 of the TP Act protects rule of Mohammedan law by excluding the provisions of Chapter II containing Sections 5 to 53-A thereof. In our opinion, exclusion is conditional upon existence of rule of Mohammedan law in that regard, that is to say if principle/rule of Mohammedan law provides as to transfers lis pendens, the same would prevail and nothing in Section 52 of the TP Act shall be deemed to affect any such rule. However, we have not been shown any such rule of Mohammedan law containing provision as to lis pendens and thus, in the absence whereof the provisions of Section 52 of the TP Act would be attracted. The submission as to non-applicability of Section 52 of the TP Act to Mohammedan law is hereby rejected.<br><b style=\"background-color: rgb(255, 255, 0);\">Sefali Roy Chowdhary v. A.K. Dutta, (1976) 3 SCC 602 at page 605</b><br>5. .... Section 52 of the Transfer of Property Act forbids alienations pendente lite providing inter alia that the property forming the subject-matter of a pending suit cannot be transferred or otherwise dealt with by any party to the suit so as to affect the rights of any other party under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. The doctrine of lis pendens means that no party to the litigation can alienate the property in dispute so as to affect the other party, and rests “upon this foundation, that it would plainly be impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail”. (Observation of Turner, L.J. in Bellamy v. Sabine [(1857) 1 D&amp;J 566, 584] , quoted with approval by the Privy Council in Faiyaz Husain Khan v. Munshi Prag Narain [34 IA 102, 105] .) But a sub-tenant who avails of the provisions of Section 16(3) which extinguishes the tenant\'s interest in the portion of the premises sublet and confers on the sub-tenant the right to hold the tenancy directly under the superior landlord, cannot be said to have alienated property pendente lite. Section 5 of the Transfer of Property Act defines transfer of property as an act by which a living person conveys property to another. When the legislature in exercise of its sovereign powers regulates the relations of landlord and tenant altering or abridging their rights, what it does is not transfer of property attracting the doctrine of lis pendens.<br>33. …… Thus, the transfer if any made in contravention of Section 52 renders it subservient to the rights of the parties in litigation so that the rights would eventually be determined in a suit.&nbsp; It is well settled that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of this section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation.<br><b><span style=\"background-color: rgb(255, 255, 0);\">Rajender Singh v. Santa Singh, (1973) 2 SCC 705</span>&nbsp;</b><br>15. The doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject-matter of litigation from the ambit of the court\'s power to decide a pending dispute or frustrate its decree. Alienees acquiring any immovable property during a litigation over it are held to be bound, by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it. The whole object of the doctrine of lis pendens is to subject parties to the litigation as well as others, who seek to acquire rights in immovable property, which are the subject-matter of a litigation, to the power and jurisdiction of the court so as to prevent the object of a pending action from being defeated.<br><b style=\"background-color: rgb(255, 255, 0);\">Krishnaji Pandharinath Balwankar v. Anusayabai Sidram Gulbile, 1958 SCC OnLine Bom 74 : AIR 1959 Bom 475] thus: (SCC OnLine Bom para 3).&nbsp;</b><br>The doctrine of lis pendens would be applicable even to the proceedings in the nature of an appeal<br>3. It is true that in this case the sale effected by Sidram was after the dismissal of the suit filed by Anusayabai and before the suit was restored, but the alienation being before, the final decree or order was passed and complete satisfaction or discharge of the decree was obtained, it must be regarded as pendente lite. In Section 52 of the Transfer of Property Act, as it stood before it was amended by Act 20 of 1929, the expression “active prosecution of any suit or proceeding” was used. That expression has now been omitted, and the Explanation makes it abundantly clear that the lis continues so long as a final decree or order has not been obtained and complete satisfaction thereof has not been rendered. At p. 228 in Sir Dinshaw Mulla\'s Transfer of Property Act, 4th Edn., after referring to several authorities, the law is stated thus: ‘… Even after the dismissal of a suit a purchaser is subject to lis pendens, if an appeal is afterwards filed.<br><b style=\"background-color: rgb(255, 255, 0);\">Jayaram Mudaliar v. Ayyaswami, (1972) 2 SCC 200 at page 217</b><br>43. It has been pointed out, in Bennet “On Lis Pendens”, that, even before Sir Francis Bacon framed his ordinances in 1816 “for the better and more regular administration of justice in the chancery, to be daily observed” stating the doctrine of lis pendens in the 12th ordinance, the doctrine was already recognised and enforced by Common Law Courts. Bacon\'s ordinance on the subject said:<br>“No decree bindeth any that commeth in bona fide, by conveyance from the defendant before the bill exhibited, and is made no party, neither by bill, nor the order; but, where he comes in pendente lite, and, while the suit is in full prosecution, and without any color of allowance or privity of the court, there regularly the decree bindeth; but, if there were any intermissions of suit, or the court made acquainted with the conveyance, the court is to give order upon the special matter according to justice.”<br>Corpus Juris Secundum (Vol. 54, p. 570).&nbsp;<br>“Lis pendens literally means a pending suit; and the doctrine of lis pendens has been defined as the jurisdiction, power, or control which a court acquires over property involved in a suit pending the continuance of the action, and until final judgment therein.”<br><b style=\"background-color: rgb(255, 255, 0);\">Usha Sinha v. Dina Ram, (2008) 7 SCC 144 at page 152</b><br>25. We are in respectful agreement with the proposition of law laid down by this Court in Silverline Forum (1998) 3 SCC 723. In our opinion, the doctrine is based on the principle that the person purchasing property from the judgment-debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree. Resistance at the instance of transferee of a judgment-debtor during the pendency of the proceedings cannot be said to be resistance or obstruction by a person in his own right and, therefore, is not entitled to get his claim adjudicated.<br><b style=\"background-color: rgb(255, 255, 0);\">Vinod Seth v. Devinder Bajaj, (2010) 8 SCC 1 : (2010) 3 SCC (Civ) 212 : 2010 SCC OnLine SC 664 at page 19</b><br>41. …… Section 52 of the TP Act provides that during the pendency in any court of any suit in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the court and on such terms as it may impose. The said section incorporates the well-known principle of lis pendens which was enunciated in Bellamy v. Sabine [(1857) 1 De G&amp;J 566 : 44 ER 842] : (ER p. 849) “It is, as I think, a doctrine common to the courts both of law and equity, and rests, as I apprehend, upon this foundation—that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant\'s alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding.”<br>42. It is well settled that the doctrine of lis pendens does not annul the conveyance by a party to the suit, but only renders it subservient to the rights of the other parties to the litigation. Section 52 will not therefore render a transaction relating to the suit property during the pendency of the suit void but render the transfer inoperative insofar as the other parties to the suit. Transfer of any right, title or interest in the suit property or the consequential acquisition of any right, title or interest, during the pendency of the suit will be subject to the decision in the suit.<br>43. The principle underlying Section 52 of the TP Act is based on justice and equity. The operation of the bar under Section 52 is however subject to the power of the court to exempt the suit property from the operation of Section 52 subject to such conditions it may impose. That means that the court in which the suit is pending, has the power, in appropriate cases, to permit a party to transfer the property which is the subject-matter of the suit without being subjected to the rights of any part to the suit, by imposing such terms as it deems fit. Having regard to the facts and circumstances, we are of the view that this is a fit case where the suit property should be exempted from the operation of Section 52 of the TP Act, subject to a condition relating to reasonable security, so that the defendants will have the liberty to deal with the property in any manner they may deem fit, in spite of the pendency of the suit.<br><b style=\"background-color: rgb(255, 255, 0);\">Amit Kumar Shaw v. Farida Khatoon, (2005) 11 SCC 403 at page 409</b><br>14. An alienee pendente lite is bound by the final decree that may be passed in the suit. Such an alienee can be brought on record both under this rule as also under Order 1 Rule 10. Since under the doctrine of lis pendens a decree passed in the suit during the pendency of which a transfer is made binds the transferee, his application to be brought on record should ordinarily be allowed.<br>15. Section 52 of the Transfer of Property Act is an expression of the principle “pending a litigation nothing new should be introduced”. It provides that pendente lite, neither party to the litigation, in which any right to immovable property is in question, can alienate or otherwise deal with such property so as to affect his appointment. This section is based on equity and good conscience and is intended to protect the parties to litigation against alienations by their opponent during the pendency of the suit. In order to constitute a lis pendens, the following elements must be present:<br>1. There must be a suit or proceeding pending in a court of competent jurisdiction.<br>2. The suit or proceeding must not be collusive.<br>3. The litigation must be one in which right to immovable property is directly and specifically in question.<br>4. There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation.<br>5. Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order.<br>The doctrine of lis pendens applies only where the lis is pending before a court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10 an alienee pendente lite may be joined as party. As already noticed, the court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case.<br><b style=\"background-color: rgb(255, 255, 0);\">Madhukar Nivrutti Jagtap v. Pramilabai Chandulal Parandekar, (2020) 15 SCC 731 : 2019 SCC OnLine SC 1026 at page 758</b><br>14.3. The aforesaid observations in no way lead to the proposition that any transaction on being hit by Section 52 ibid., is illegal or void ab initio, as assumed by the High Court. In Sarvinder Singh [Sarvinder Singh v. Dalip Singh, (1996) 5 SCC 539] , as relied upon by the High Court, the subsequent purchasers sought to come on record as defendants and in that context, this Court referred to Section 52 of the TP Act and pointed out that alienation in their favour would be hit by the doctrine of lis pendens. The said decision is not an authority on the point that every alienation during the pendency of the suit is to be declared illegal or void. The effect of doctrine of lis pendens is not to annul all the transfers effected by the parties to a suit but only to render them subservient to the rights of the parties under the decree or order which may be made in that suit. In other words, its effect is only to make the decree passed in the suit binding on the transferee i.e. the subsequent purchaser. Nevertheless, the transfer remains valid subject, of course, to the result of the suit.&nbsp;<br><b style=\"background-color: rgb(255, 255, 0);\">A. Nawab John v. V.N. Subramaniyam, (2012) 7 SCC 738: (2012) 4 SCC (Civ) 324.&nbsp;</b><br>18. It is settled legal position that the effect of Section 52 is not to render transfers effected during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The pendente lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the court.<br><b style=\"background-color: rgb(255, 255, 0);\">Sunita Jugalkishore Gilda v. Ramanlal Udhoji Tanna, (2013) 10 SCC 258: (2013) 4 SCC (Civ) 723 : 2013 SCC OnLine SC 747 at page 263</b><br>13. The rule of lis pendens applies to suit by mortgagee as well. Lord Justice Turner has succinctly dealt with this principle in the leading case of Bellamy v. Sabine [(1857) 1 De G &amp; J 566 : 44 ER 842] (courtesy Mulla on Transfer of Property Act). The doctrine is intended to prevent one party to a suit making an assignment inconsistent with the rights which may be decided in the suit and which might require a further party to be impleaded in order to make effectual the court\'s decree. The law is well settled that a mortgagee, who has purchased a mortgaged property in execution of his mortgage decree is entitled to avoid a transfer on the ground that it was mortgaged by the mortgagor during the pendency of a mortgage suit. Section 52 of the TPA prevents a mortgagor from creating any lease during the pendency of the mortgaged suit so as to affect the right of a mortgagee or the purchaser.<br><b style=\"background-color: rgb(255, 255, 0);\">Mangru Mahto v. Thakur Taraknathji Tarkeshwar Math, AIR 1967 SC 1390</b><br>11. … But in view of Section 52 of the Transfer of Property Act, if the mortgagor grants such a lease during the pendency of a suit for sale by the mortgagee, the lessee is bound by the result of the litigation. If the property is sold in execution of the decree passed in the suit, the lessee cannot resist a claim for possession by the auction-purchaser. The lessee could apply for being joined as a party to the suit and ask for an opportunity to redeem the property. But if he allows the property to be sold in execution of the [mortgage] decree [and they have now lost] the present case, the lessees allowed the suit lands to be sold in execution of the mortgage decree and they have now lost the right of redemption. They cannot resist the claim of the auction-purchaser for recovery of possession of the lands.<br><b style=\"background-color: rgb(255, 255, 0);\">Sanjay Verma v. Manik Roy, (2006) 13 SCC 608 at page 612</b><br>12. The principles specified in Section 52 of the TP Act are in accordance with equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendente lite is bound by the decree just as much as he was a party to the suit. The principle of lis pendens embodied in Section 52 of the TP Act being a principle of public policy, no question of good faith or bona fide arises. The principle underlying Section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the court.<br><b><span style=\"background-color: rgb(255, 255, 0);\">Thomson Press (India) Ltd. v. Nanak Builders &amp; Investors (P) Ltd., (2013) 5 SCC 397: (2013) 3 SCC (Civ) 1: 2013 SCC OnLine SC 174 at page 419</span>.</b><br>39. …a decree for specific performance of a contract may be enforced against a person who claimed under the plaintiff (sic defendant), and title acquired subsequent to the contract. There is no dispute that such transfer made in favour of the subsequent purchaser is subject to the rider provided under Section 52 of the Transfer of Property Act and the restraint order passed by the Court.<br><span style=\"background-color: rgb(255, 255, 0);\"><b>Kafiladdin v. Samiraddin, AIR 1931 Cal 67.</b>&nbsp;</span></h4><h4>Where Court referred to the English law on this point and quoted one of the passages of the book authored by Dart, on ‘Vendors and Purchasers’, 8th Edn., Vol. 2, Equity will enforce specific performance of the contract for sale against the vendor himself and against all persons claiming under him by a title arising subsequently to the contract except purchasers for valuable consideration who have paid their money and taken a conveyance without notice to the original contract. This statement of the law is exactly what is meant by the first two clauses of Section 27 of the Specific Relief Act. It is not necessary to refer to the English cases in which decrees have been passed against both the contracting party and the subsequent purchaser.&nbsp;<br><b style=\"background-color: rgb(255, 255, 0);\">R.C. Chandiok v. Chuni Lal Sabharwal (1970) 3 SCC 140 : AIR 1971 SC 1238&nbsp;</b><br>9. It is common ground that the plot in dispute has been transferred by the respondents and therefore the proper form of the decree would be the same as indicated at SCR p. 369 in Durga Prasad v. Deep Chand AIR 1954 SC 75 : 1954 SCR 360 viz. to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff.&nbsp;<br><b style=\"background-color: rgb(255, 255, 0);\">K.N. Aswathnarayana Setty v. State of Karnataka, (2014) 15 SCC 394 : (2015) 4 SCC (Civ) 196 : 2013 SCC OnLine SC 1061 at page 400</b><br>11. The doctrine of lis pendens is based on legal maxim ut lite pendente nihil innovetur (during a litigation nothing new should be introduced). This doctrine stood embodied in Section 52 of the Transfer of Property Act, 1882. The principle of “lis pendens” is in accordance with the equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendente lite is bound by the decree just as much as he was a party to the suit. A litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. However, it must be clear that mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The law simply postulates a condition that the alienation will, in no manner, affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the court. The transferee cannot deprive the successful plaintiff of the fruits of the decree if he purchased the property pendente lite.&nbsp;<br><br><br><br><br><br></h4><p><br></p>', '292dda1e361f336e55ccbeb2d0170b8e.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-08', 1, '', '', '2021-06-09 01:37:09', '2021-06-09 01:40:19'),
(815, 'zRa8J4EOqQR3g4LTxVeVr2CSO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act. Person supervising loading and unloading goods in tractor is not gratuitous passenger. Insurance is liable under comprehensive policy. Karnataka High Court. 28 May 2021 ', '<h4>The New India Assurance Co Ltd vs Kamalamma and another. </h4><h4>Miscellaneous First Appeal 1139 of 2011 decided on 28 May 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/386264/1/MFA1139-11-28-05-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/386264/1/MFA1139-11-28-05-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: This appeal is filed by the appellant-Insurance Company challenging the judgment and award dated 22.05.2006 passed in M.V.C.No.239/2003 on the file of Additional Civil Judge (Sr.Dn.) and Additional Motor Accident Claims Tribunal at Hassan (‘the Tribunal’ for short) and set aside the modified award dated 28.08.2010 carried out on 15.09.2010.<br>16. It is also important to note that when the policy is a comprehensive policy, which covers the third party including the loader and unloader and when the tractor was returning after unloading the bricks as narrated in the claim petition and also in the pleadings. The very contention of the Insurance Company is that the Insurance Company is not liable to pay the compensation as the same not covers the liability of the Supervisor cannot be accepted.&nbsp;<br>18. This Court would like to refer to the judgment of the Apex Court in the case of National Insurance Company Limited v. Balakrishnan and another reported in (2013) 1 Supreme Court Cases 731, wherein, the Apex Court held that the Insurer liable to pay compensation in case of<br>‘comprehensive/package policy” but not in case of “Act policy”. In the said case, it is observed that the owner or gratuitous passenger travelling in motor vehicle meeting with accident and discussed with regard to liability of the Insurer. Further, the Apex Court held that, as the Insurance Regulatory and Development Authority (IRDA), which is presently the statutory regulatory authority, has commanded the insurance companies that a “comprehensive/package policy” covers the liability of the insurer for payment of compensation to the occupant in a motor vehicle, there cannot be any dispute in that regard. Further, it is observed that if the policy is a “comprehensive/package policy”, the liability would be covered. IRDA has clarified the position by issuing Circulars dated 16.11.2009 and 03.12.2009. Therefore, a “comprehensive/package policy” would cover the liability of the insurer for payment of compensation for the occupant in a car. The Apex Court in this judgment also extracted Section 147 of the MV Act in paragraph No.10 and discussed several judgments and the scope of comprehensive policy and also the act policy.&nbsp; &nbsp;<br>20. This Court also would like to refer to the Judgment of the Apex Court in the case of New India Assurance Company<br>v. Satpal Singh and Others reported in (2000) 1 Supreme Court Cases 237, wherein, the Apex Court discussed Section 147 of the MV Act and held that it covers death or bodily injury even to a gratuitous passenger - Policy should cover injury to any person including owner of the goods or his authorized representative carried in the vehicle&nbsp;<br>21. This Court also would like to refer to the judgment of the Apex Court in the case of Shivawwa and another v. Branch Manager, National India Insurance Co. Ltd., and another reported in AIR 2018 Supreme Court 1640, the Apex Court held that, there was no challenge as to fact that deceased loaded his agricultural produce on tractor and accompanied tractor for unloading same and while returning met with accident. The Apex Court held that the Insurance Company is liable to pay compensation.<br>22. This Court also would like to refer to the Judgment of this Court in the case of The Oriental Insurance Company Limited v. Hanumant &amp; Another reported in 2005(4) KCCR 2320 and discussed the provisions of Section 2(1)(m) of the Act and taken note of the relationship between the parties as father and son. In paragraph No.2 of the judgment, this Court held that the fact that the first respondent and second respondent are father and son, is not a ground in law to infer the absence of the relationship of employer and employee under the Workmen’s Compensation Act.<br>23. This Court also would like to refer to the Judgment of this Court in the case of Manohar Bhimappa More v. Mahadev Bhimappa More reported in 2006 ACJ 850. In paragraph No.3 of the Judgment, this Court had discussed with regard to the employment of the family itself and the fact that the injured is the brother and the guarantor for repayment of the loan is not a valid reason to hold that he was not a workman employed in connection with the tractor-trailer. This Court also observed that there is no inhibition in law for employment of member of the family in connection with the tractor-trailer. Further observed that, in view of the peculiar family relationship it is absurd to insist on documentary proof of appointment and the payment of wages by cash as the only mode of consideration for proof of employment.<br>The appeal is dismissed.<br><br></h4><p><br></p>', 'ace8c1f457417afcdd2ae6a760a669f6.jpg', '5ea91b82c278c726ee8edb7c6178bf84.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-28', 1, '', '', '2021-06-10 00:58:41', '2021-06-10 00:58:41'),
(816, 'yiTrzl3H9KRzJjk8orWDCBJ0m', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'Actionable Claim\' - Defined and discussed. Karnataka High Court. 2 June 2021', '<h4>Bangalore Turf Club Limited vs The State of Karnataka and others.<br></h4><h4>Writ Petition 11168 of 2018 decided on 2 June 2021.&nbsp;</h4><h4>Judgment Link: <a href=\"https://karnatakajudiciary.kar.nic.in/judgements/WP-11168-2018CW-11167-2018.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/WP-11168-2018CW-11167-2018.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: The petitioners in these writ petitions inter alia challenge the legislative intent of making the petitioners liable to pay Goods and Services Tax (‘GST’ for short) on the entire bet amount received by the totalisator and declare the amendments dated 25-01-2018 which inserted Rule 31A(3) to the CGST Rules as being ultra vires the CGST Act.&nbsp;</h4><h4>15.....Section 2 of the Act defines various terms under the Act. Section 2(1) deals with an actionable claim. Actionable claim is not defined under the Act but is&nbsp; directed&nbsp; to hold the same meaning as assigned to it in Section 3 of the Transfer of Property Act, 1882.&nbsp; Section&nbsp; 2(17) defines what is business. Section 2(17)(h) defines activities of a race club including by way of totalisator or a license to a bookmaker or activities of a licensed book maker in such race club to be business. Section 2(31) deals with what is consideration which is any payment made whether in money or otherwise in respect of or in response to or for an inducement of goods or services or both. Section 2(52) deals with goods which would mean every kind of movable property other than money and securities&nbsp; including&nbsp; actionable&nbsp; claim.&nbsp; Section&nbsp; &nbsp;2(93) deals with recipient. A recipient is&nbsp; one&nbsp; who&nbsp; receives&nbsp; goods or services or&nbsp; both.&nbsp; Section&nbsp; 2(105)&nbsp; defines&nbsp; who&nbsp; is a supplier. A&nbsp; supplier&nbsp; in&nbsp; relation&nbsp; to&nbsp; any&nbsp; goods&nbsp; or services both to mean&nbsp; a&nbsp; person&nbsp; who&nbsp; is&nbsp; supplying&nbsp; the&nbsp; said goods or services or both. The spirit of the afore- quoted definitions is that there must be goods and there must be supply which&nbsp; would&nbsp; only&nbsp; become&nbsp; a&nbsp; taxable event. If there is no supply; there is no tax.&nbsp;</h4><h4><span style=\"font-size: 1.3125rem;\">30.&nbsp;</span><span style=\"font-size: 1.3125rem;\">Actionable claim in terms of the act is not assigned any separate meaning but the meaning that is assigned to Section 3 of the Transfer of Property Act is made applicable. Therefore, Section 3 of the Transfer of Property Act requires to be noticed for ready reference and it reads as follows:</span><br></h4><h4><span style=\"font-size: 1.3125rem;\">“3. Interpretation-clause.—In this Act, unless there is something repugnant in the subject or context,-</span><br></h4><h4>“actionable claim” means a claim to any debt, other than a debt secured by mortgage of immoveable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts&nbsp; recognise as affording grounds for relief, whether such debt or beneficial interest be<span style=\"white-space:pre\">	</span>existent,<span style=\"white-space:pre\">	</span>occurring,<span style=\"white-space:pre\">	</span>conditional<span style=\"white-space:pre\">	</span>or contingent;&nbsp;</h4><h4>What is actionable claim under the Transfer of Property Act would mean a claim to any debt other than the debt secured by&nbsp; mortgage of&nbsp; immovable property. Elaborating this submission, the learned counsel relies on the judgment of a Constitution Bench of the Apex Court in the case of Sunrise Associates vs Government of NCT of Delhi (2006) 5 SCC 603 with particular reference to paragraphs 30, 33, 36, 40, 431, 42, 43, 46 and 48 which read as follows:</h4><h4>“30. The first dispute which has to be resolved is what H. Anraj [(1986) 1 SCC 414 : 1986 SCC (Tax) 190] in fact held. Did it hold, as was found by&nbsp; the&nbsp; Karnataka&nbsp; High&nbsp; Court in Nirmal Agency v. CTO [(1992) 86 STC 450 (Kant)] , that the lottery tickets were goods only because they represented the right to participate in the draw? Or did it hold, as has been found by the Delhi High Court, that the lottery tickets themselves were the goods which were sold? The conflict is a direct consequence of the somewhat ambiguous language used in H. Anraj [(1986) 1 SCC 414: 1986 SCC (Tax) 190]&nbsp;</h4><h4>A. In para 23 of the Report (SCC), the Court did say that lottery tickets are movable property and as such would fall within the expression “goods”. However, the Court qualified that statement immediately by saying that the questions whether tickets constituted goods properly so called or are slips of paper or memoranda merely evidencing the right to claim a prize by chance and whether these are actionable claims and hence excluded from the concept of goods, would be considered subsequently in the judgment.</h4><h4>B. In para 27 of the Report (SCC) (which we have quoted earlier), the Court categorically stated&nbsp; that&nbsp; a lottery ticket was goods—not as a physical article but as&nbsp; a slip&nbsp; of&nbsp; paper or memorandum evidencing (a)&nbsp; the&nbsp; right to participate in the draw, and (b) the right to claim a prize contingent upon the purchaser being successful in the draw. This is reiterated in para 29 of the Report (SCC). It was also stated that for the purpose of imposing the levy of sales tax, lottery tickets comprising the entitlement to a right to participate in a draw would have to be regarded as goods properly so called.</h4><h4>C. In the same paragraph the Court said what is transferred to the purchaser is the right to participate in the draw. That is the “goods” which was a chose-in-possession. The same right has been later described as the beneficial interest in movable property, that is to say that the right was not the movable property itself.</h4><h4>D. Then again in para 30 it was said: (H. Anraj case [(1986) 1 SCC 414: 1986&nbsp; SCC&nbsp; (Tax)&nbsp; 190]&nbsp; ,&nbsp; SCC&nbsp; p. 437, para 30)</h4><h4>“30. It is true that this entitlement to a right to participate in the draw is an entitlement to beneficial interest which is of incorporeal or intangible nature but that cannot prevent it from&nbsp; being&nbsp; regarded as goods.”</h4><h4>“31. This again indicates that it is the right to participate in the draw which wasbeing described as the goods. Otherwise it was not necessary to refer to other incorporeal rights which had been judicially recognised as goods for the purposes of levying sales tax such as copyrights or intangible rights such as electricity.</h4><h4>32. Ultimately, however, clarity in the matter is brought about by the concurring judgment of Sabyasachi Mukharji, J. (as His Lordship then was), when he said: (SCC p. 445, para 47)</h4><h4>“47. I, however, agree with my learned Brother that the right to participate in the draw under a lottery ticket remains a valuable right till the draw takes place and it is for this reason that licensed agents or wholesalers or dealers of such tickets are enabled to effect sales thereof till the draw actually takes place and therefore lottery tickets, not as physical articles but as slips of paper or memoranda evidencing the right to participate in the draw can be regarded as dealer\'s merchandise and therefore goods which are capable of being bought or sold in the market.”</h4><h4>36. We have noted earlier that all the statutory definitions of the word “goods” in the State sales tax laws have uniformly excluded, inter alia, actionable claims from the definition for the purposes of the Act. Were actionable claims, etc., not otherwise includible in the definition of “goods” there was no need for excluding them. In other words, actionable claims are “goods” but not for the purposes of the Sales Tax Acts and but for this statutory exclusion, an actionable claim would be “goods” or the subject-matter of ownership. Consequently, an actionable claim is movable property and “goods” in the wider sense of the term but a sale of an actionable claim would not be subject to the sales tax laws.</h4><h4>40.<span style=\"white-space:pre\">	</span>An actionable claim would include a right to recover insurance money or a partner\'s right to sue for an account of a dissolved partnership or the right to claim the benefit of a contract not coupled with any liability (see Union of India v. Sri Sarada Mills Ltd. [(1972) 2 SCC 877] , SCC at p. 880). A claim for arrears of rent has also been held to be&nbsp; an&nbsp; &nbsp; actionable&nbsp; &nbsp; claim&nbsp; &nbsp; (State&nbsp; &nbsp; of Bihar v. Maharajadhiraja Sir Kameshwar Singh [1952 SCR 889 : AIR 1952&nbsp; SC&nbsp; 252]&nbsp; ,&nbsp; SCR at p. 910). A right to the credit in a provident fund account has also been held to be an actionable claim (Official Trustee v. L. Chippendale [AIR 1944 Cal 335 : ILR (1943) 2 Cal 325] ; Bhupati Mohan Das v. Phanindra Chandra Chakravarty [AIR 1935 Cal 756 : 40 CWN 102] ). In our opinion a sale of a lottery ticket also amounts to the transfer of an actionable claim.</h4><h4>41. A lottery ticket has no value in itself. It is a mere piece of paper. Its value lies in the fact that it represents a chance or a right to a conditional benefit of winning a prize of a greater value than the consideration paid for the transfer of that chance. It is nothing more than a token or evidence of this right. The Court in H. Anraj [(1986) 1 SCC 414: 1986 SCC (Tax) 190] , as we have seen, held that a lottery ticket is a slip of paper or memoranda evidencing the transfer of certain rights. We agree.</h4><h4>42. Webster\'s Words and Phrases, Permanent Edn., Vol. 25-A Supplement defines a “ticket” as “a printed card or a piece of paper that gives a person a specific right, as to attend a theatre, ride on a train, claim or purchase, etc.”&nbsp; The&nbsp; Madras&nbsp; &nbsp;High&nbsp; &nbsp;Court&nbsp; in SeshaAyyar v. Krishna Ayyar [AIR&nbsp; &nbsp;1936 Mad 225 : ILR 59 Mad 562 (FB)]&nbsp; also held: (AIR p. 227)</h4><h4>“Tickets of course are only the tokens of the chance purchased, and it is the purchase of this chance which is the essence of a lottery.”</h4><h4>43. The sale of a ticket does not necessarily involve the sale of goods. For example, the purchase of a railway ticket gives the right to a person to travel by railway. It is nothing other than a contract of carriage. The actual ticket is merely evidence of the right to travel. A contract is not property, but only a promise supported by consideration, upon breach of which either a claim for specific performance or damages would lie (Said v. Butt [(1920) 3 KB 497 : 1920 All ER Rep 232] ). Like railway tickets, a ticket to see a cinema or a pawnbroker\'s ticket are memoranda or contracts between the vendors of the ticket and the purchasers. Cases on whether the terms specified on such tickets bind the purchaser are legion. It is sufficient for our purpose to note that tickets are themselves, normally evidence of and in some cases the contract between the buyer of the ticket and its seller. Therefore a lottery ticket can be held to be goods if at all only because it evidences the transfer of a right.</h4><h4>48. Even if the right to participate is assumed to be a separate right, there is no sale of goods within the meaning of sales tax statutes when that right is&nbsp; transferred. When H. Anraj [(1986) 1 SCC 414 : 1986 SCC (Tax) 190] said that the right&nbsp; to&nbsp; participate was a beneficial interest in&nbsp; movable property, it did not define what that movable property was. The draw could not and&nbsp; was&nbsp; not&nbsp; suggested to be the movable property.&nbsp; The&nbsp; only object of the right to participate would be to win the prize. The transfer of the right&nbsp; would thus be of a beneficial interest in movable property not in possession. By this reasoning also a right to participate&nbsp; in&nbsp; a lottery is an actionable claim.</h4><h4><br></h4><h4><br></h4><h4><br></h4>', '8063638801c9d93747e3897353681a9c.jpg', '75e7565c786a60f1fbdacba7f6991fd1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-02', 1, '', '', '2021-06-11 00:18:26', '2021-06-11 00:41:37'),
(817, 'Ypu0JpVHjKuPbOEhYY46KQ2BF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Maintenance and Welfare of Parents and Senior Citizens Act, 2007 does NOT apply to absolute transfer of property for consideration without recital to take care of the transferor. Karnataka High Court.', '<h4>Anupama and another vs The Assistant Commissioner and another. </h4><h4>Writ Petition 147066 of 2020 decided on 1 April 2021<br>Maintenance and Welfare of Parents and Senior Citizens Act, 2007. Absolute transfer of property for consideration without recital to take care of the transferor. The Act cannot be invoked to cancel the transfer. Karnataka High Court. 1 April 2021 <br><b style=\"background-color: rgb(255, 255, 0);\">See paragraphs 11 and 12 of the judgment enclosed. </b></h4><div><br></div>', 'bb525a2e6ee801a77b95304ce919a9f3.jpg', '709668709f1e360302a50f9b5854300c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-01', 1, '', '', '2021-06-11 01:05:17', '2024-01-23 14:40:19');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(818, 'i5HCRZwmxmG7IAHfZXAtXvCNi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bar on civil court jurisdiction under National Green Tribunal Act and Environment Protection Act does NOT apply to suit for damages alleging private nuisance and pollution. Karnataka High Court. 19 April 2021', '<h4>M/s. Janki Corp Ltd. Iron and Steel Division vs V. Giriyappa and another. </h4><h4>Civil Revision Petition 100048 of 2018 decided on 19 April 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/382453/1/CRP100048-18-19-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/382453/1/CRP100048-18-19-04-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: The defendant No.1 in O.S. No. 729/2013 on the file of Prl. Civil Judge, Ballari, has filed this revision petition under Section 115 of Civil Procedure Code assailing the order dated 02.04.2018 rejecting its application filed under Order VII Rule 11 (a) and (d) of CPC.<br>plaintiff in the suit, he has sought&nbsp; a&nbsp; direction&nbsp; to&nbsp; the&nbsp; defendants&nbsp; to&nbsp; pay&nbsp; to&nbsp; him Rs. 2,60,000/- annually towards damages. He pleaded that the first defendant, i.e., the petitioner herein, has an industry adjacent to his agricultural lands in Sy. No. 101b/2 and 102/d of Sidiginamola village, Rupanagudi hobli, Ballari Taluk and District. There is a natural stream, namely, Todeluvanka which passes near his land and then merge with the river Vedavati. The first defendant’s industry has become hazardous to the lives of the people in&nbsp; &nbsp;the&nbsp; &nbsp;locality&nbsp; &nbsp;and&nbsp; &nbsp;is&nbsp; &nbsp;a&nbsp; &nbsp;threat&nbsp; &nbsp;to&nbsp; &nbsp;the surrounding environment. The industry has no facility for storing the raw materials such as iron ore fines, ESP dust, dolachar, skip coke, manganese ore, etc. and they are dumped materials in heaps in the industrial premises in an unscientific manner. The fast blowing wind carries the&nbsp; dust particles of the raw materials which later on deposit over the agricultural lands and thereby the plaintiff has not been able to carry out the agricultural operations. His lands are very fertile and suitable for cultivating different varieties of crops, namely channa, corrionder, cotton, jawar, bajra, toor dal, greengram and sunflower, etc. But consequent to the industrial activities, the plaintiff has not been able to cultivate his land and has suffered loss to a great extent. In these circumstances, the defendants are liable to compensate the plaintiffs for the harm caused by them. In this background he claimed damages of Rs.2,60,000/- per year from the defendants.<br>3. The first defendant made an application under order VII Rule 11 (a) and (d) (actually it should be Order VII Rule 11(b) and (d)) for rejecting the plaint on two scores,<br>5. In regard to the bar of suit, the learned trial Judge has held that the Environmental Protection Act does not contain a provision to award compensation, and moreover, the plaintiff has claimed damages for the loss sustained by him on account of first defendant’s industry and therefore the suit is very much maintainable.<br>9. So far as the maintainability of the suit in view of bar contained in the Environmental Protection Act and the National Green Tribunal Act, it may be stated that on a plain reading of the plaint, it is possible to notice that the plaintiff has claimed damages for his private nuisance. Though in the plaint, he has stated about the manner in which the defendant’s industry is polluting the neighboring environment, it is just an incidental reference; if the plaint as a whole is read, what appears is that he has expressed grievance for the loss that he is said to be sustaining being unable to cultivate his land or being unable to reap the expected yield on account of the damage caused to his land. Therefore the plaintiff has founded the relief for the personal damage caused to him, it is nothing but a private nuisance.<br>10. Sec. 22 of the Environment (Protection) Act states that the civil Court has no jurisdiction to entertain any suit in respect of anything done, action taken or order or direction issued by the Central Government or any other authority or Officer in pursuance of any power conferred&nbsp; by or in relation to its or its functions under this Act. Sec.18 of the said Act also prohibits a suit or prosecution against the Government or any officer. Reading of these two Sections makes it clear that the prohibition is with regard to instituting a suit against the Government or the other officers in respect of matters coming under the Environment (Protection) Act. There is no bar for instituting a suit against private persons for claiming damages in the circumstances pleaded in the suit filed by the respondent herein.<br>11. According to Sec. 14 of the National Green Tribunal Act, the Tribunal constituted under the said Act has jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment) is involved and such<br>question arises out of the implementation of the&nbsp; enactment specified in Schedule 1. Sec. 29(2) prohibits entertainment of suits by the Civil Courts.&nbsp;<br>Therefore conjoint reading of Sec. 14 and Sec. 29 makes it very clear that the Tribunal has jurisdiction in respect of such matters where question arises out of implementation of the enactments specified in Schedule 1. In Schedule 1&nbsp; of the National Green Tribunal Act, seven enactments have been mentioned of which the Environment&nbsp; (Protection) Act, 1986 is one among them. What can be made out&nbsp; from these two Sections is that the National Green Tribunal gets jurisdiction where the action complained of is in the nature of public nuisance.<br>12. In the case of Rathnagiri Nagar Parishat, a judgment cited by Sri Shreevatsa Hegde, the facts disclose that the suit therein was a representative suit. Rathnagiri Nagar Parishat intended to set up a solid waste disposal project in a hilly area nearby a flowing river. The villagers apprehended serious health hazards as the waste dumped in the identified place would pollute the river water and also the nearby dam from where water was supplied to Rathnagiri city. The facts therefore make it very clear that the act complained of was a public nuisance and in that view it was held that the suit in a civil Court was not maintainable. Same is not the position in the case on hand. As discussed above the plaintiff has claimed<br>damages for the loss he has stated to have sustained on account of the defendant running the industry situated adjoining his agricultural land. It is purely a private nuisance. For a case of this type, remedy is in the civil Court only, not in the Tribunal constituted under the National Green Tribunal Act. For these reasons, rejection&nbsp; of application filed by the petitioner under Order VII Rule 11 (b) and (d) of CPC does not suffer from any infirmity. The trial Court’s order cannot be interfered with. This revision petition is dismissed.</h4>', 'e9050ee905fdecd9aeb047c5182ffe95.jpg', 'afddf5977f4ea572d24dbee18f270f85.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-19', 1, '', '', '2021-06-11 02:39:25', '2021-06-11 02:39:25'),
(819, 'Gpa0wlcKD4MQY7qfvIjKFbN00', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Social security to a daily wage employee cannot be reduced to a \'rope of sand\'.  Daily wage employees are also entitled to dearness allowance at 100 percent and earned leave. Karnataka High Court. 26 May 2021', '<h4>Karnataka Rajyada Yella Dinagoolie Kshemabhiruddi Vidheyaka Dadi Nema Nuki yada Naukarara Vakoota vs The State of Karnataka and another. </h4><h4>Writ Petition 203599 of 2016 decided on 26 May 2021.</h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/388245/1/WP203599-16-26-05-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/388245/1/WP203599-16-26-05-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: These cluster of petitions are filed by the Associations comprising of daily wage employees seeking to declare among others Rules 4(3) and 4(4) of the Karnataka Daily Wage Employees Welfare Rules, 2013 as ultra vires to Sections 2(a) and 4(2) of the Karnataka Daily Wage Employees Welfare Act, 2012 and have called in question those Government orders/memoranda issued from time to time, which run counter to the provisions of the Act and the Rules resulting in taking away certain benefits available to the petitioners thereunder. </h4><h4>The objects and reasons  would clearly indicate that it is promulgated for better welfare of daily wage employees working in various establishments of Government and Corporations to give minimum security of tenure, better wage and certain social security on termination from long public service. Therefore the spirit behind the enactment was protection of daily wage employees from arbitrary or discriminatory treatment. The condition was that it would be made applicable to those employees who had completed 10 years of service.<br>18. Thus, the consideration will have to be whether the employees who are now brought under the Payment of Gratuity Act for receipt of gratuity would be entitled to ex-gratia as claimed by them notwithstanding payment of gratuity. <br>20. It is not a new benefit that the State conferred by way of an amendment to the Rules or for the State to contend that bringing in the employees who come under the Act, under the Payment of Gratuity Act is a benevolence conferred, to take away the benefit of ex-gratia. Therefore, on a plain reading of the Payment of Gratuity Act and the Rules framed thereunder would lead to grant of benefit of gratuity to the employees coming under the Act, more so, in the light of the fact that these employees are not governed by any other Act or any Rules providing for payment of gratuity as the provision of death-cum-retirement gratuity in terms of the Karnataka Civil Service Rules is admittedly not applicable to employees under the Act. Therefore, the action of State in taking away the benefit of ex-gratia on the premise that employees under the Act have been brought under a more beneficial legislation  i.e., Payment of Gratuity Act, 1972 , is illegal. It is held that employees are also entitled to payment of ex-gratia in terms of sub-section (2) of Section 4 of the Act and the same is determined by Government from time to time.<br>21. The next benefit that is to be considered is with regard to grant of admissible Dearness Allowance. It is trite that Dearness Allowance is an allowance that is given to employees/ officers to compensate them to a certain extent of rise in cost of living. The nature of Dearness Allowance is similar to that of pay granted for the purpose of computing changes in the cost of living or changes in the purchasing power of money. It is given to bridge the gap between the minimum wage and the living wage as far as possible. The object is to neutralize a part of rise in the cost of living. The payment of Dearness Allowance, thus, is admissible to every employee, permanent employee or an employee coming under the Act, as the purpose for such grant remains the same to both the employees working under the State or the Act. The Act grants the employees admissible Dearness Allowance. Admissible Dearness Allowance would unequivocally mean that whatever Dearness Allowance a Government servant in the corresponding post would get would be the admissible Dearness Allowance under the Rules and Government Orders<br>22. Therefore, if a Government servant is entitled to 100% of the Dearness Allowance, it cannot be curtailed to a daily wage employee coming under the Act, as the Act itself confers on the daily wage employee admissible Dearness Allowance, which cannot mean anything but 100% of Dearness Allowance. The very act of the State curtailing it to 75% in the Government order dated 19.09.2014 and enhancing it to 90% in the Government order dated 10-01-2020 is clearly contrary to the Act. It is trite that a benefit that is conferred under the Act cannot be curtailed or taken away by issuance of Government orders. Therefore, in my considered view, the benefit of admissible Dearness Allowance that is conferred on the employees under the Act, would be 100% and cannot be curtailed under Government orders. Therefore, the employees coming under the Act are entitled to receive Dearness Allowance on par with Government servants, as the Act itself mandates payment of admissible Dearness Allowance determined by Government by orders from time to time. The liberty of determination by Government orders from time to time cannot be used to take away the benefit of admissible Dearness Allowance under the Act.<br>23. The other benefit that falls for consideration is the benefit of earned leave that the Act determined and the Circular dated 12-07-2017 took away. <br>26. It is also germane to consider the judgment of the Apex Court in the case of STATE OF PUNJAB v. JAGIT SINGH reported in (2017) 1  SCC  148,  wherein the Apex Court declared that daily wage employees employed by the State Government would be entitled to equal pay for equal work that they render under the State Government. In the light of the judgment of the Apex Court in the case of JAGIT SINGH (supra), if employees coming under the Act are directed to take a lesser amount of Dearness Allowance than that of Government employees despite doing the same work or are not given the fruits of the Act would itself constitute an act of exploitative enslavement, emerging out of a domineering position and would compel involuntary subjugation.<br>27. The Act having treated the employees under the Act on par with Government employees insofar as the benefits under Section 4, cannot be rendered illusory by the subsequent acts of Government either in issuing Government orders contrary to the Act or amending the Rules contrary to the Act. The soul of the Act being grant of a  better  wage, social  security on cessation of long public service to a daily wage employee, cannot be reduced to a ‘rope of sand’.<br>(c) It is declared that the employees coming under the Act are entitled to-<br>(i) Dearness Allowance at 100% as is admissible to regular Government employees; and<br>(ii) Earned Leave in terms of the Act.<br><br><br><br><br></h4><p><br></p>', '074e21d7230ce83f13da646775e68426.jpg', 'a45a7a055a9596e592a8e7e68430fe44.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-26', 1, '', '', '2021-06-12 18:04:37', '2021-06-12 18:10:35'),
(820, '3cRRSpqMkRNBrSAk4mEUv0poC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Inquiry against Amazon and Flipcart under the Competition Act, 2002. Order under Section 26-1 of the Act is purely \'administrative direction\' and issuance of notice to any party  at this stage is NOT required. Karnataka High Court. 11 June 2021', '<h4>Amazon Seller Services Private Limited vs Competition Commission of India. </h4><h4>Writ Petition 4334 of 2020 and connected matter decided on 11 June 2021. </h4><h4>Judgment Link:&nbsp;<a href=\"https://karnatakajudiciary.kar.nic.in/judgements/WP_3363_2020_connected_matters.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/WP_3363_2020_connected_matters.pdf</a></h4><h4><span style=\"font-size: 1.3125rem;\"><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: Amazon Seller Services Pvt. Ltd., and Flipkart Internet Pvt. Ltd. , have filed these writ petitions with prayers inter alia to quash order dated January 13, 2020 passed by the Competition Commission of India , in Case No.40/2019, directing an investigation under Section 26(1) of the Competition Act, 2002 (\'Act\' for short) by the Director General .</span></h4><h4>4. Delhi Vyapar Mahasangh (respondent No.2) is a Society comprising of Micro, Small and Medium Enterprises registered under the Societies Registration Act, 1860. It has filed information alleging contravention of Section 3(1) read with Section 3(4) and Section 4(1) and 4(2) of the Competition Act and sought directions for investigation under Section 26(1) of the Competition Act. Upon consideration of the said information, Commission has passed the impugned order.<br>12. I have carefully considered rival contentions and perused the records. Following points arise for consideration in this case: <b style=\"background-color: rgb(255, 255, 0);\">A. What is the nature of the impugned order passed under Section 26(1) of the Act? B. Whether a prior notice and opportunity of hearing is mandatory at the stage of issuing direction to the Director General to hold inquiry under Section 26(1) of the Act?</b><br>14. The preamble of the Act states that, keeping in view the economic development of the Country, Competition Act has been brought for establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in the markets, to protect the interests of consumers and to ensure \'freedom of trade\' carried on by other participants in the market in India.<br>15. Under Section 19 of the Act, the Commission may inquire into allegation of contravention of provisions of the Act either on its own motion or on receipt of any information accompanied by such fee as may be determined by the Regulations or upon a reference made by the Central Government or a State Government or a Statutory Authority.<br>16. Delhi Vyapar Mahasangh has given information against petitioners under Section 19(1)(a) of the Act alleging contravention of Section 3(1) read with Section 3(4) and Section 4(1) read with Section 4(2) of the Act. It has filed a summary of its case together with documents which it has considered supportive of its allegations. Though, the informant has alleged contravention of Sections 3(1), 3(4), 4(1) and 4(2) of the Act, the Commission has held that Act does not provide for an enquiry or investigation in cases of Joint/Collective dominance and has directed inquiry by the Director General for alleged violation of Section 3(1) read with Section 3(4) of the Act.<br>17. The informant has alleged that the petitioners have entered into several vertical agreements with preferred sellers and following aspects require investigation and consideration by the Commission: • Deep discounting; • Preferential Listing; and • Exclusive Tie-ups.<br>36. Thus, from the above authorities, it is clear that: • An order under Section 26(1) of the Act passed by the Commission is an \'administrative direction\' to one of its wings departmentally and without entering upon any adjudicatory process; and • Section 26(1) of the Act does not mention about issuance of any notice to any party before or at the time of formation of an opinion by the Commission on the basis of information received by it. Accordingly, Points A and B are answered<br>65. Resultantly, these writ petitions must fail. Accordingly, Rule is discharged and writ petitions stand dismissed.</h4><h4><b style=\"background-color: rgb(255, 255, 0);\">Section 26. Procedure for inquiry under section 19</b>.--(1) On receipt of a reference from the Central Government or a State Government or a statutory authority or on its own knowledge or information received under section 19, if the Commission is of the opinion that there exists a prima facie case, it shall direct the Director General to cause an investigation to be made into the matter:<br>Provided that if the subject matter of an information received is, in the opinion of the Commission, substantially the same as or has been covered by any previous information received, then the new information may be clubbed with the previous information.<br>(2) Where on receipt of a reference from the Central Government or a State Government or a statutory authority or information received under section 19, the Commission is of the opinion that there exists no prima facie case, it shall close the matter forthwith and pass such orders as it deems fit and send a copy of its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be.<br>(3) The Director General shall, on receipt of direction under sub-section (1), submit a report on his findings within such period as may be specified by the Commission.<br>(4) The Commission may forward a copy of the report referred to in sub-section (3) to the parties concerned:<br>Provided that in case the investigation is caused to be made based on reference received from the Central Government or the State Government or the statutory authority, the Commission shall forward a copy of the report referred to in sub-section (3) to the Central Government or the State Government or the statutory authority, as the case may be<br>(5) If the report of the Director General referred to in sub-section (3) recommends that there is no contravention of the provisions of this Act, the Commission shall invite objections or suggestions from the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be, on such report of the Director General.<br>(6) If, after consideration of the objections or suggestions referred to in sub-section (5), if any, the Commission agrees with the recommendation of the Director General, it shall close the matter forthwith and pass such orders as it deems fit and communicate its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be.<br>(7) If, after consideration of the objections or suggestions referred to in sub-section (5), if any, the Commission is of the opinion that further investigation is called for, it may direct further investigation in the matter by the Director General or cause further inquiry to be made in the matter or itself proceed with further inquiry in the matter in accordance with the provisions of this Act.<br>(8) If the report of the Director General referred to in sub-section (3) recommends that there is contravention of any of the provisions of this Act, and the Commission is of the opinion that further inquiry is called for, it shall inquire into such contravention in accordance with the provisions of this Act.<br><b style=\"background-color: rgb(255, 255, 0);\">Section 19. Inquiry into certain agreements and dominant position of enterprise</b>.—(1) The Commission may inquire into any alleged contravention of the provisions contained in sub-section (1) of Section 3 or sub-section (1) of Section 4 either on its own motion or on—<br>(a) receipt of any information, in such manner and] accompanied by such fee as may be determined by regulations, from any person, consumer or their association or trade association; or<br>(b) a reference made to it by the Central Government or a State Government or a statutory authority.<br>(2) Without prejudice to the provisions contained in sub-section (1), the powers and functions of the Commission shall include the powers and functions specified in sub-sections (3) to (7).<br>(3) The Commission shall, while determining whether an agreement has an appreciable adverse effect on competition under Section 3, have due regard to all or any of the following factors, namely:—<br>(a) creation of barriers to new entrants in the market;<br>(b) driving existing competitors out of the market;<br>(c) foreclosure of competition by hindering entry into the market;<br>(d) accrual of benefits to consumers;<br>(e) improvements in production or distribution of goods or provision of services; or<br>(f) promotion of technical, scientific and economic development by means of production or distribution of goods or provision of services.<br>(4) The Commission shall, while inquiring whether an enterprise enjoys a dominant position or not under Section 4, have due regard to all or any of the following factors, namely:—<br>(a) market share of the enterprise;<br>(b) size and resources of the enterprise;<br>(c) size and importance of the competitors;<br>(d) economic power of the enterprise including commercial advantages over competitors;<br>(e) vertical integration of the enterprises or sale or service network of such enterprises;<br>(f) dependence of consumers on the enterprise;<br>(g) monopoly or dominant position whether acquired as a result of any statute or by virtue of being a Government company or a public sector undertaking or otherwise;<br>(h) entry barriers including barriers such as regulatory barriers, financial risk, high capital cost of entry, marketing entry barriers, technical entry barriers, economies of scale, high cost of substitutable goods or service for consumers;<br>(i) countervailing buying power;<br>(j) market structure and size of market;<br>(k) social obligations and social costs;<br>(l) relative advantage, by way of the contribution to the economic development, by the enterprise enjoying a dominant position having or likely to have appreciable adverse effect on competition;<br>(m) any other factor which the Commission may consider relevant for the inquiry.<br>(5) For determining whether a market constitutes a “relevant market” for the purposes of this Act, the Commission shall have due regard to the “relevant geographic market” and “relevant product market”.<br>(6) The Commission shall, while determining the “relevant geographic market”, have due regard to all or any of the following factors, namely:—<br>(a) regulatory trade barriers;<br>(b) local specification requirements;<br>(c) national procurement policies;<br>(d) adequate distribution facilities;<br>(e) transport costs;<br>(f) language;<br>(g) consumer preferences;<br>(h) need for secure or regular supplies or rapid after sales services.<br>(7) The Commission shall, while determining the “relevant product market”, have due regard to all or any of the following factors, namely:—<br>(a) physical characteristics or end-use of goods;<br>(b) price of goods or service;<br>(c) consumer preferences;<br>(d) exclusion of in house production;<br>(e) existence of specialised producers;<br>(f) classification of industrial products.<br><br><br><br></h4><p><br></p>', '8bbd80181e421195e3eeade36eaaa4c5.jpg', 'cc3ca3c949399f985b977661050adeec.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-11', 1, '', '', '2021-06-14 03:34:01', '2021-06-14 03:43:00'),
(821, 'hNYAc0ZUb74nQgoEg0Gi9GKUB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Customs Act, 1962. Notification enhancing custom duty would NOT become enforceable if it is simply issued and sent for publication. It is enforceable only when such a notification is published and also offered for sale. Karnataka High Court. 27 May 2021', '<h4>Union of India vs M/s. Ruchi Soya Industries Ltd. </h4><h4>Writ Appeal 2575 of 2018 decided on 27 May 2021. </h4><h4>Justice B.V.Nagarathna and Jusitce Hanchate Sanjeevkumar. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/388358/1/WA2575-18-27-05-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/388358/1/WA2575-18-27-05-2021.pdf</a></h4><h4>2.This appeal is filed by the Union of India, the Commissioner and Deputy Commissioner of Customs, being aggrieved by the order of the learned Single Judge dated 06.03.2018 passed in writ petition No.41394/2015. In that petition, respondent herein had sought a  declaration that the reassessment of the subject goods imported by the respondent on 17.09.2015 and demanding the higher rate of duty of 12.5% for clearance of the subject goods was illegal. The learned Single Judge, accepted the contentions of the respondent-importer and quashed Annexures – W, X, Y and Z and held that the respondent herein was liable to pay duty only at 7.5% based on Notification No.12/2012-Cus. dated 17.03.2012. Consequently, the differential duty as per Notification No.46/2015-Cus. dated 17.09.2015 at the rate of 12.5% was not applicable to the respondent herein.<br>5. The learned Single Judge by applying the judgment of the Hon’ble Supreme Court in the case of Union of India vs. Param Industries Ltd., [2015<br>(321) ELT 192 (SC)] (Param Industries Ltd.) held that, under Section 25(4) of the Customs Act, 1962 there was non-compliance of the stipulation under clause (b) of Section 25(4) of the Act and the Notification No.46/2015- Cus. dated 17.09.2015 was not applicable to the subject goods and appellant/Revenue could not claim the differential rate of duty on the basis of the said Notification dated 17.09.2015. Consequently, the demand made at Annexures W, X, Y and Z were quashed and it  was  declared that the importer was liable to pay duty at 7.5% based on the Notification Nos.12/2015 dated 17.03.2012 and no differential amount of duty could be claimed on the basis of the notification dated 17.09.2015. Being aggrieved by the order of the learned Single Judge, the Union of India and Department of Customs have preferred this appeal.<br>23. It is not in dispute that the respondent had imported 10,000 metric tons of Crude Palm Oil of Edible Grade in bulk from its foreign supplier. The goods arrived  at Mangalore Port on 17.09.2015 and on the previous date i.e. on 16.09.2015, four bills of entry were presented for clearance and the same were cleared. However, the vessel was permitted entry into the Port only on 17.09.2015. Co- incidentally, on the very same day the Notification was issued enhancing the customs duty from 7.5% to 12.5%.  In the circumstances, the appellants - Department sought for payment of differential duty on the subject goods on  the basis of Section 15 of the Act.<br>31...The bone of contention between the parties is, on the day the ship entered the Mangalore Port i.e. on 17.09.2015, co- incidentally, a Notification was issued enhancing the rate of customs duty on Crude Palm Oil of Edible  Grade  from 7.5% to 12.5% and therefore, the contention of the Revenue is that, the enhanced rate of customs duty was liable to be paid by the respondent importer.<br>36. The bone of contention between the parties is, whether, in the instant case, Notification dated  17.09.2015, which was published on the same day in the Official Gazette was not made available to the respondent, inasmuch as it was not offered for sale on the date of its issuance i.e. on 17.09.2015 itself and therefore, the said mandate not having been complied with, the ratio of the judgment of the Hon’ble Supreme Court in Param  Industries Ltd. would squarely apply. Hence, the enhanced rate of customs duty as stipulated in the said Notification, cannot be applied to the imported goods.<br>43. One of the legislative controls over delegated legislation is ‘Publication’. The other two being ‘Laying Procedure’ and ‘Consultation of Interests’.<br>44. The Latin Maxim ‘ignorantia Juris non excusat (ignorance of law is no excuse) means that every one is presumed to know the law. The said presumption could apply only when the law is made known to the person to whom it would apply. This is particularly so in the case of delegated legislation.<br>45. It is a mandatory requirement that there is publication of every law, so that the people to whom it would apply are aware of it. In this context, it would be necessary to distinguish between a legislation being made by the Parliament or Legislature of a State and a delegated legislation. When a particular legislation is made by a Parliament or State legislature, the process of legislation is in the public domain, inasmuch as the debate of the legislation is not only within the houses of legislature, but also a simultaneous debate amongst the citizens would be underway. Therefore, there is great deal of publicity attached to legislation. By contrast, delegated legislation which also affects the right of individuals and imposes obligation on them, is not made in public gaze, inasmuch  as delegated legislation is formulated by the concerned departments involved in the regulation or governance of  the same and it is only by the system of publication that a delegated legislation in the form of Rules, Notifications, Circulars etc. is made known to the public.<br>46. The Statutory Instruments Act, 1946, in England, mandates systematic publication of delegated legislation.<br>47. In fact, it is necessary to note the distinction between making and publication of an instrument. An instrument may come into effect when made, or from the date fixed for its commencement. Its non-publication does not its affect validity or effectiveness. Publication of an instrument in the manner prescribed is a notice to every one of its existence. If a publication of an instrument is to be made, it is with the object of giving constructive notice of the said instrument, which may be in the form of a Rule or Notification etc. to the affected persons. But, where publication of a Notification is a mandatory requirement even on the date of its issuance, it must be sent for publication in the Official Gazette.<br>48. Panama Refining Co. vs. Ryan [293 US 388, 434 (1935)] is the landmark decision of United States of America. In that case, the Supreme Court therein was dealing with publication of delegated  legislation. <br>49. In India, while no general statutory provision requiring or regulating publication of delegated legislation, such publication of the rules or other form of delegated legislation is regarded as an essential requirement of their validity.<br>50. Generally, each statute would make a stipulation with regard to the requirement of publication. Where the date of enforcement of a Notification is having due publication of the same in the Official Gazette, the  rules cannot be said to have force, if not published in the Gazette. Also, the rules are not enforceable, if published in any other mode but not in the Gazette. Therefore, while  the Notification or rule is made before its publication, the condition that, it would not come into force without publication in the Gazette, has to be read as essential or mandatory condition.<br>51. Publication of the rules or Notification in the Official Gazette gives authenticity to the same and it creates certainty in the mind of the individual  that  the rules have been duly made, also the individual can have easy access to the rules or Notification, where to look for the rules or Notification made under any statute. (Source: M.P.Jain and S.N.Jain – Principles of Administrative Law – 7th Enlarged Edition)<br>52. In the context of the controversy in the present case, the question that would arise is, when the delegated legislation (the impugned Notification) in the instant case came into force. On a reading of Section 25(4)(a) of the Act, unless otherwise provided, a notification would come into force on the date of its issue by the Central Government for publication in the Official Gazette. Therefore, the day on which it comes into force is connected with the publication of  the  notification. Thus, the date of the Notification, coming into force is, when the same is issued by the Central Government and sent for publication in the Official Gazette. But, Section 25(4)(b) of the Act states that, such a notification must also be published and offered for sale on the date of its issue by  the Directorate of Publicity and Public relations of the Board, New Delhi. This would imply that, not only publication of the notification, but also offering the same  for sale on the date of its issue are concomitant conditions which have to be complied with before it can be enforced. Thus, a notification issued under that Section would not become enforceable only if it is issued and sent for publication and not published at all. It would become enforceable only when such a notification is published and also offered for sale on the date of its issue. In other  words, if a notification is published in the Official Gazette and not offered for sale on the date of its issue, such a Notification cannot be enforced on the date of its issue itself. This is because, the provision provides for enforcement of a notification on the date of its issue itself provided the two conditions namely; (i) its publication in the Official Gazette and (ii) the same being offered for sale on the date of its issue, are also complied with. The same  is evident from the use of the word “also” in Section 25(4)(b) of the Act.<br>57. If the instant case is viewed in light of the aforesaid decision, it must be held that, the Gazette publication being offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi, is also a mandatory requirement and until the same was available for sale, the notification though issued and published in the Official Gazette could not have been enforced. Therefore, the enforcement of the notification has to coincide with the date  of its issuance  and publication and offered for sale on the date of its issuance, in the instant case.<br>58. In view of the judgment of the Hon’ble Supreme Court in Param Industries Ltd., also, having regard to the reply given by the Department to the query made by the respondent under the provisions of the RTI Act, 2005, it is held that, the notification dated 17.09.2015, not being available for sale on the said day and the same being available for sale only on 21.09.2015, the said Notification could not have been made applicable to the subject goods imported on 17.09.2015. That too by reassessing the bills of entry which had already been assessed on 16.9.2015 itself, prior to the issuance of the Notification de hors the legal position as per Section 15 of the Act.<br>63. In view of the aforesaid discussion, we hold that the learned Single Judge was justified in holding that notification dated 17.09.2015 could not have been made applicable to the imported goods in question and the demand for payment of differential amount of duty was rightly quashed by the learned Single Judge.<br>64. Since we do not find any merit in the appeal, appeal is liable to be dismissed and is dismissed.<br><br><br><br><br><br><br><br></h4><p><br></p>', '14ba221e01cfbb3aa7aab3e69093c694.PNG', '18936b3f45578a53b928f37ad1572759.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-27', 1, '', '', '2021-06-14 18:45:31', '2021-06-14 18:47:38'),
(822, 'DTvT9sdADdPBfBUjxfmwbHt8E', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Insolvency and Bankruptcy Code, 2016. Demand for customs duty which is not part of resolution plan approved by  the adjudicating authority stands extinguished permanently. Karnataka High Court. 27 May 2021', '<h4>Union of India vs M/s. Ruchi Soya Industries Ltd.<br>Writ Appeal 2575 of 2018 decided on 27 May 2021.<br>Justice B.V.Nagarathna and Jusitce Hanchate Sanjeevkumar.<br>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/388358/1/WA2575-18-27-05-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/388358/1/WA2575-18-27-05-2021.pdf</a><br>2.This appeal is filed by the Union of India, the Commissioner and Deputy Commissioner of Customs, being aggrieved by the order of the learned Single Judge dated 06.03.2018 passed in writ petition No.41394/2015. In that petition, respondent herein had sought a&nbsp; declaration that the reassessment of the subject goods imported by the respondent on 17.09.2015 and demanding the higher rate of duty of 12.5% for clearance of the subject goods was illegal. The learned Single Judge, accepted the contentions of the respondent-importer and quashed Annexures – W, X, Y and Z and held that the respondent herein was liable to pay duty only at 7.5% based on Notification No.12/2012-Cus. dated 17.03.2012. Consequently, the differential duty as per Notification No.46/2015-Cus. dated 17.09.2015 at the rate of 12.5% was not applicable to the respondent herein.<br>65. .....An application has been filed by the respondent seeking dismissal of the appeal. This is on the premise that no proceeding could have been initiated for recovery of the dues from the respondent, which is a corporate debtor within the meaning of the provisions of&nbsp; the “IBC”. This is because the dues are not part of the resolution plan approved by the adjudicating authority under Section 31 of the “IBC”.<br>67. According to the respondent, resolution plan was successfully implemented on 18.12.2019, there has been a change in the control and ownership of the present respondent with effect from that date. Also, there is no involvement of the erstwhile directors on the board of directors of the respondent, as they have ceased to be the directors on the Board of respondent. It is further stated that as per Section 32A of the “IBC”, upon completion of corporate insolvency resolution process, the liability of corporate debtor would cease as the said provision has a non-obstante clause. It is further stated that the present proceedings concerning the subject import leading to demand of duty relates to the year 2015. The said proceedings pertain to the period prior to the commencement of the corporate insolvency resolution process and in any case, the same relates to period prior to the effective date and therefore, the same shall stand extinguished.<br>68. Reliance has been placed on the judgments of the Hon’ble Supreme Court in the matter of Committee of Creditors of Essar Steel India Limited vs. Satish Kumar Gupta and others dated 15.11.2019 (Civil Appeal Nos.8766-67 of 2019) and Ultra Tech Nathdwara Cement Ltd. (formerly known as Biinani Cements Ltd.) vs. Union of India and others (D.B. Civil Writ Petition No.9480/2019) disposed of on 07.04.2020 by the Rajasthan High Court.&nbsp;<br>69. It was contended by the learned counsel for the respondent that the resolution plan in the instant case was approved on 24.07.2019 and 04.09.2019. The dues, in the instant case, arose in the year 2015, which is prior to the approval of the resolution plan; that unless and until the said dues are made part of the resolution plan, the same cannot be recovered. This is having regard to the latest dictum of the Hon’ble Supreme Court in Ghanashyam Mishra and Sons Private Limited through the Authorized Signatory vs.&nbsp; Edelweiss Asset Reconstruction Company Limited through the Director [2021 SCC Online SC 313]&nbsp;&nbsp;<br>73. Learned counsel for the respondent submitted that having regard to the conclusion of the Hon’ble Apex Court in Ghanashyam Mishra, since the dues claimed by&nbsp; the appellants herein is one coming within the scope and ambit of ‘operational debt’, the Central Government would be the ‘operational creditor’ as defined under Sub-section- 20 of Section 5 of the Act. That even without the amendment made to Section 30 by 2019 Amendment Act, the dues to the Central Government including the statutory dues would be covered within the definition of “operational debt” owed to a creditor, in terms of Sub-Section 10 of Section 3 of “IBC”.<br>74. We find that the said contention of the learned counsel for the respondent is in consonance with what has been opined recently by the Hon’ble Supreme Court in Ghanashyam Mishra, on which judgment, the respondent has placed heavy reliance.&nbsp;<br>76. Madras High Court has applied the judgment of the Hon’ble Supreme Court in Ghanashyam Mishra in the case of the respondent herein. However, the matter was remanded to the NCLT to give a finding as to whether the corporate resolution plan filed by the respondent therein included the customs duty on the import of goods in that case.<br>77. The provisions of Section 238 of “IBC” states that the provisions of “IBC” shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any<br>instrument having effect by virtue of any such&nbsp; law.&nbsp; Further, it is noted that crown debts do not take&nbsp; precedence even over secured creditors, who are private persons. This is clear on a reading of Section 238 of “IBC” which provides for the overriding effect of “IBC” notwithstanding anything inconsistent contained in other law for the time being in force or effect by any such law. Therefore, if the departments of Central or State Governments do not file an application or participate in the resolution process, their claims automatically get extinguished having regard to the judgment of the Hon’ble Supreme Court in the case of Ghanashym Mishra.<br>78. We are of the view that this matter does not require to be remanded to the NCLT, Mumbai,&nbsp; before&nbsp; which forum the resolution plan was approved. We&nbsp; however observe that the reasons are two fold: firstly, this appeal has been dismissed on merits and the respondent has succeeded on merits in this appeal, secondly, the appellants have not produced any material before us to demonstrate that the claim in the instant case was part of the resolution plan approved by the NCLT, Mumbai.<br>79. In the circumstances, we pass the following order:<br>ORDER<br>i. The appeal is dismissed on merit.<br>ii. The application in I.A.No.1/2021 is allowed.<br>iii. Parties to bear their respective costs.<br><br><br><br><br><br></h4><p><br></p>', '94d82f4329af4bcb3d215305545cf65c.PNG', 'deae9f26f8bb34bfd0dd3cff63e81078.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-27', 1, '', '', '2021-06-14 19:05:32', '2021-06-14 19:05:32');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(823, '4j5PJQjDa03SuxnIXofVVdzmp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Preventive detention. Though writ petition challenging detention order even before the actual arrest is maintainable, interim stay of such order and grant of bail to accused is unsafe and hazardous. Karnataka High Court. 4 June 2021', '<h4>Dr. Nimmy Shetty vs The State of Karnataka and others. </h4><h4>Writ Petition Habeas Corpus 46 of 2021 decided on 4 June 2021. </h4><h4>Justice Aravind Kumar and Justice N.S. Sanjay Gowda. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/388369/1/WPHC46-21-04-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/388369/1/WPHC46-21-04-06-2021.pdf</a><br>This writ petition is directed against the order of detention and its confirmation thereof passed by respondent Nos.3 and 1 respectively.<br>5. The Assistant Commissioner of Police, CCB, Special Enquiry, submitted a representation to third respondent requesting for passing an order of detention against the petitioner\'s husband under The Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video and Audio Pirates Act, 1985 (for short \'Goonda Act\'). Third respondent passed an order of detention on 19.04.2021 under the Goonda Act after opining that detenue with an intention of gaining money illegally, has indulged in conducting gambling dens and incited general public to involve in gambling activities, which is prohibited under law and as a result of it, innocent people of the Society had indulged in gambling and lost their money, properties and their families. It is also held thereunder the activities of detenue revealed that there are number of instances disclosing that he had been instrumental in causing financial loss to the general public. In sum and substance, it came to be held by the detaining authority that activities of the detenue is detrimental to the interest of the Society at large. Hence, third respondent after deriving subjective satisfaction, passed the order of detention on 19.04.2021<br>12. Having heard the learned Advocates appearing for the parties and after bestowing our careful and anxious consideration to the rival contentions raised at the bar and also on perusal of  case laws relied upon by the respective learned Advocates, we are of the considered view that following points would arise for our consideration :<br>(i) Whether writ petition is maintainable?<br>OR<br>Is writ petition liable to be dismissed as premature?<br>(ii) Whether the impugned orders would call for interference by this Court?<br>15. The Hon\'ble Apex Court in the case of Additional Secretary to Government of India vs Alka Subhash Gadia and another reported in  (1992) Suppl . 1 SCC 496 while examining the maintainability of a habeas corpus petition filed on behalf of a detenue against whom order of detention was passed, but could not be served on the detenue as he was absconding, has held pre-arrest petition is maintainable. In other words, challenge to the detention order before the order of detention was executed was held to be maintainable. <br>16. Thus, even at the pre-execution stage the order of detention can be challenged and courts would examine the validity of such order on being satisfied on the criteria prescribed by the Apex Court being satisfied. <br>21. It can be noticed from aforesaid judgments that challenge to the order of detention was pre-arrest stage. Whereas in the instant case, impugned order of detention, which has been challenged by the wife of the detenue, is post-arrest. <br>32. In the instant case, we have noticed that even before the State could place its objections, counter or place the original records, an interim order came to be passed on 05.05.2021 staying the order of detention as well as confirmation order. The adoption of such a course of action would be unsafe and probably be hazardous. By way of illustration, it can be noted that in a given case if an interim order of this nature is passed and the detenue is ordered to be released and said detenue were to indulge in any activity that may be prejudicial to the maintenance of the public order or effecting the security of the State or economy of the country or it results in any illegal act being perpetrated resulting in chaos in Society, then clock cannot be put back, particularly, if the writ petition were to be dismissed after the matter is heard. It would not be safe, sound or reasonable to make an interim order on the prima facie conclusion. Hon\'ble Apex Court in the case  of  State of Bihar vs Rambalak Singh \"Balak\" and others, reported in AIR 1966  SC  1441 while examining the claim for grant of bail in a petition filed under Article 226 of Constitution of India has held that  High  Court has jurisdiction to grant bail, but the exercise of said jurisdiction is inevitably circumscribed by considerations which are special to such proceedings. <br>35. We would only like to add that when habeas corpus petitions are filed it requires to be heard with utmost urgency as is being done in almost all such  cases, for the simple reason that, fundamental right to life and liberty as enshrined in Article 21 of the Constitution of India, cannot be allowed to be nugated on account of any misuse or improper use of \"preventive detention\" law by the authorities administering the  same. As such, we are of the considered view that order passed on 05.05.2021 not only requires to be recalled, but it also requires to be held that an error in exercise of extraordinary jurisdiction had occasioned.<br>ORDER<br>(i) I.A.No.1/2021 filed for vacating stay, stands allowed for the reasons indicated hereinabove and State shall take the detenue into custody forthwith.<br>(ii) Writ petition is dismissed subject to observations made hereinabove.<br>(iii) Respondent-State is at liberty to take such steps as is permissible under the Goonda Act.<br>(iv) We make it explicitly clear that observations made hereinabove would not prejudice the State Government or the Advisory Board while considering the representation/reference.<br><br></h4><p><br></p>', '9fcdc92d30c1d84608f50255d6a3ae6b.PNG', 'a2651d0de46813e3835d82a795f86d8f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-04', 1, '', '', '2021-06-15 00:25:22', '2021-06-15 00:26:22'),
(824, 'vWdf9i0MH2XDfPFHwdw3Blz2Q', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Election Law. Fraud in preparation of voters list vitiates entire election process. High Court can examine such election process in a Writ Petition even after the election is over. Karnataka High Court. 7 June 2021', '<h4>Dr. Gachinamani Naganatha vs State of Karnataka and others. </h4><h4>Writ Petition 211065 of 2020 decided on 7 June 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/388373/1/WP211065-20-07-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/388373/1/WP211065-20-07-06-2021.pdf</a><br>The kernel of this conundrum is the manner of conduct of elections to the Karnataka Medical Council by the 2nd respondent/Returning Officer.<br>2....The petitioner is a registered member of the Karnataka Medical Council, his registration is renewed from time to time as per law and is presently subsisting. The petitioner has approached this Court in this writ petition raising a challenge to the action of the 2nd respondent/Returning Officer in not acting upon list of members for the purpose of election to the Members of Council as furnished by the Council and has sought a direction for preparation of electoral list and conduct of elections in accordance with law.<br>11. I have given my anxious consideration to the rival submissions made on behalf of the parties and have perused the material on record, in furtherance whereof, the following points arise for my consideration:<br>(i) Whether the writ petition suƒƒers ƒrom want oƒ maintainability on two counts?<br>(a) Estoppel on the part oƒ the petitioner;<br>(b) Elections being over, the petitioner has to raise an election dispute under the Rules.<br>(ii) Whether the elections conducted are vitiated by ƒraud on the part oƒ the Returning Oƒƒicer?”<br>12. In the peculiar facts of the case, I deem it appropriate to consider point No.2 at the outset.<br>20...This Court by the aforesaid order dated 17.02.2020 noticing the fact that elections were held on 23.01.2020, counting of votes had completed on 25.01.2020 directed that the result of the election shall not be published and therefore, the result of the election is yet to be published in terms of the aforesaid order which is in operation even as on date.<br>24. The 3rd respondent maintains the voters list in terms of Section 26 of the Act (supra). In terms of Section 2 which defines who is a ‘registered medical practitioner’ and Section 26 directs enlistment of those persons in the list maintained under Section 12 the manner in which the Council maintains the list of registered medical practitioners is borne out from the annexure appended to the writ petition as Annexure-A. To quote an illustration, Sl.No.1 in Annexure-A is one Dr. Akash Angadi. Name,  Gender,  Date  of  Registration  and the Address of the doctor along with  registration  number are tabulated in the form of a badge. This is the<br>‘teachers’ voters list’ that is available on the website of the Council which is produced as Annexure-A.<br>27. It is also germane to notice that the list of 37298 voters are added in the so called voters list prepared by the Returning Officer also contains doctors who have died and who have left the country after surrendering their registration. Names of persons and the names of doctors who have left the country being part of the list is not disputed by the Returning Officer or the State. The defence is that the list may contain one or two dead persons and a few who have left the country and surrendered the registration. This is enough circumstance to hold the conduct of the Returning Officer was in perpetration of fraud.<br>33...Therefore, I answer point No.2 in favour of the petitioner and against the respondents by declaring that the entire election process is vitiated by fraud.<br>36. It is, without a shadow of a doubt, in terms of the preceding analysis, that the entire election is vitiated on account of the fraud played by the Returning Officer. The Returning Officer who has a duty to act according to the Rules, has not used, but abused his office. Such public servants, if left off the hook, without any penalty being imposed for deliberately acting blatantly contrary to the statute treating the entire election process as his personal fiefdom, would become an abdication of a duty of this Court. It is also to be noticed that the State and the Returning Officer have made submissions in unison and have defended themselves mutually. Therefore, this Court feels any direction to the State to hold disciplinary proceedings against the Returning Officer would be an exercise in futility. In my considered view, the State should be directed to entrust the conduct of disciplinary proceedings against the Returning Officer to the Lokayukta, who shall conduct an enquiry and submit its report to the State for appropriate action.<br>(b)<span style=\"white-space:pre\">	</span>Final voters list published on 10-01-2020 by the Returning Officer is quashed and as a consequence of which, elections conducted on 23-01-2020 and results declared on 25-01-2020 also stand quashed......</h4><div><br></div>', '249855a594946908a1fe2d3f89bc8a55.jpg', 'b27ae11416dadf8d41bf80eccdb3e19b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-07', 1, '', '', '2021-06-15 22:47:47', '2021-06-15 22:49:24'),
(825, 'mVPCCaRlT8PdeFnkGEV4cY9UW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Default bail under the Unlawful Activities Prevention Act. Order extending time to complete investigation without notifying or producing the accused is bad in law. Accused are entitled to default bail in such eventuality. Karnataka High Court. 10:6:2021', '<h4>Muzammil Pasha and others vs National Investigating Agency. </h4><h4>Writ Petition 1417 of 2021 and connected matters decided on 10 June 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/388911/1/WP1417-21-10-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/388911/1/WP1417-21-10-06-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: These writ petitions are  filed  by  the  accused  persons  in  FIR  No.RC-35/2020/NIA/DLI  pending  before  the Special N.I.A. Court, Bangalore (CCH-50) registered for the offences punishable under Sections 15, 16, 18 and 20 of  the  Unlawful Activities (Prevention) Act, 1967; Sections 143, 147, 148, 353, 333, 332, 436, 427 and 149 of the Indian Penal Code and Section 4 of the Prevention of Damage to Public Property Act, 1984, arising out of Crime No.229/2020 of Kadugondanahalli Police Station (hereinafter referred to as \"the K.G.Halli P.S.\") Bengaluru, challenging the order dated 03.11.2020 passed by the said court on an application filed by the respondent - National Investigating Agency under first proviso to Section 43- D(2)(b) of the Unlawful Activities (Prevention) Act, 1967 (for short \"the Act of 1967\") seeking extension of time for completion of investigation and the order dated 05.01.2021 passed by the said court rejecting the applications filed by the petitioners under Section 167(2) of the Code of  Criminal Procedure, 1973  (for  short  \"the  Code\")  seeking statutory/default bail.<br>9.The undisputed facts of the case are as follows: The petitioners, who were accused before the trial court, have been arrested and remanded to custody on 12.08.2020. The period of 90 days from the said date expires on 09.11.2020. An application under the first proviso to Section 43-D(2)(b) of the Act of 1967 was filed by the prosecution seeking extension of time for completion of investigation on 3.11.2020 and on the very same day, the prayer made in the said application was allowed. The petitioners or the learned counsel appearing for the petitioners before the trial court were neither served with the copy of the said application nor were they given an opportunity of being heard in the matter. The petitioners were also not kept present before the court on the said date of hearing. Subsequently, an application under Section 167(2) of the Code seeking statutory bail was filed by the petitioners before the trial court on 11.11.2020. The said application was dismissed by the trial court  on 05.1.2021  on the ground that the court had already granted extension of time for completion of the investigation on the application filed by the prosecution.<br>10.The points for consideration that arise in these petitions are follows:<br>1. Whether the order passed by the trial court on the application filed by the prosecution  under the first proviso to Section 43-D(2)(b) of the Act of 1967 is in accordance with law and legally sustainable?<br>2. Whether the petitioners are entitled for relief of statutory bail as provided under Section 167(2) of the Code?<br>11. The Hon\'ble Supreme Court in the case of Hitendra Vishnu Thakur (supra) while considering the validity of an order passed  under  Clause  (bb)  of  Section 20(4) of the Terrorist and Disruptive Activities (Prevention) Act, 1987, which is pari materia with Section 43-D(2)(b) of the Act of 1967, wherein the prosecution had sought extension of time for completion of the investigation, has held that even though the provision of law does not provide for issuance of a notice to the accused person before considering the prayer made by the prosecution for extension of time for completion of investigation, issuance of such a notice must be read into these provisions both in the interest of the accused and the prosecution, as well as for doing complete justice between the parties. It is further observed that the requirement of the principles of natural justice and issuance of notice to accused would accord with fair play in action, which the courts  have  always encouraged and even insisted upon. Therefore, submission of the learned ASG that Section 43-D(2)(b) of the Act of 1967 does not provide in black and white a right of hearing to the accused before considering the application filed by the prosecution seeking extension of time, does not merit consideration and same is liable to be rejected.<br>12. The Hon\'ble Supreme Court in the case of Sanjay Dutt (supra) has held that requirement of a notice to the accused before granting extension for completing the investigation as envisaged in Hitendra Thakur\'s case would be held sufficient at least if the accused persons are present in person before the court while  the  said application is considered by the trial court. The Hon\'ble Supreme Court in the said case has held that the requirement of a notice to the accused before granting extension of time for completing the investigation need not be a written notice giving reasons therein, but production of accused at that time in the court informing him that the question of extension of the period for completing the investigation is being considered is alone sufficient for the purpose. <br>13. A Coordinate Bench of this court in the case of Sayeed Majid Ahamed (supra) following the aforesaid two judgments of the Hon\'ble Supreme Court in a case arising out of Narcotic Drugs and Psychotropic Substances Act. 1985 interpreting the requirement of Section 36A(4) of the NDPS Act having observed that the said provision of law of NDPS Act is in pari materia with Section 20(4) of the TADA Act has held that having regard to the fact that prior notice was not issued to the accused nor were they produced  before the court on the date of extending the time for completing the investigation, the order granting extension of time for completing the investigation was bad in law and thereafterwards allowed the applications filed by the petitioners therein under Section 167(2) of the Code and granted statutory bail to them.<br>14. This Court has made a comparative study  of  Section 20(4)(bb) of the TADA Act, Section 36A(4) of the NDPS Act and Section 43-D(2)(b) of the Act of 1967 and has found that these three provisions of law are pari materia.<br>17. Section 13 of the  National  Investigation  Agency  Act 2008 provides  that  every  scheduled  offences  investigated by the Agency shall  be  tried  by  the  Special  Court and Section 16 of the  said Act provides the  procedure   to be adopted and powers to  be  exercised  by  Special  Court for trial of the scheduled  offences.  The  offences  under  the Act of 1967 being scheduled offences under the N.I.A.Act 2008 shall be tried by Special Court and reading of Section 43D of the Act of 1967 would make it clear that the provisions of the Code of Criminal Procedure as modified therein are applicable to a case involving offences under the Act of 1967 is concerned. Therefore, the submission of the learned ASG that in view of Section 16 of the NIA Act of 2008, the provisions of the Code of Criminal Procedure cannot be made applicable in this case is liable to be rejected.<br>18. Yet another aspect which this court has taken notice of is, the case was posted before the trial court on 02.11.2020 and on the said date, accused were  not  produced before the court. However, on the requisition of the Investigating Officer, judicial custody of the accused  was extended upto 9.11.2020. On the very next day, the prosecution filed an application under the first proviso to Section 43-D(2)(b) of the Act of 1967 seeking extension of time for completing the investigation. The order sheet would go to show that neither the accused persons nor the Advocates representing them were present before the trial court on the said date. The filing of such an application by the prosecution was not at all notified either to the accused or to their Advocates. Therefore, even the requirement of law laid down by the Hon\'ble Supreme Court in the case of Sanjay Dutt has not been complied with in the present case for the reason that the accused  were  not  present before the court on 03.11.2020 when the application  seeking extension of time for completion of investigation was filed which was allowed by the trial court on the very same day and they were not even made aware that such an application was filed and considered.<br>21.Since the petitioners were  not given an opportunity of being heard before passing an order on the application filed by the prosecution for extension of time for completion of the investigation and since the petitioners were not kept present before the court when the application filed by the prosecution for extension of time for completion of the investigation was being considered and since the petitioners were not notified that such an application filed by the prosecution was being considered  by the court for the purpose of extending the time for completion of investigation, I am of the considered opinion that the order passed by the trial court on the application filed by the prosecution  under  the  first  proviso  to  Section 43-D(2)(b) of the Act of 1967  extending  the  time  to complete the investigation is legally unsustainable and accordingly, the point No.1 for consideration is answered in the negative.<br>22. Now the question that needs consideration would be whether the petitioners are entitled for the relief of statutory bail as provided under Section 167(2) of the Code.<br>24. The Hon\'ble Supreme Court in the case of Bikramjit Singh (supra) has held that a right to default bail becomes complete and indefeasible as soon as application for grant of default bail (regardless of its form, even if it is oral) is made on expiry of the maximum prescribed period before a charge sheet is filed. <br>25. In the case on hand, immediately after completion of 90 days period prescribed under Section 167(2) of the Code for completion of the investigation, an application has been filed by the petitioners seeking statutory bail, which is also known as \"default bail\"<br>27. The right to statutory bail has now been considered as a fundamental right under Article 21 of the Constitution of India<br>28. The fundamental right of an individual recognized under Article 21 of the Constitution of India cannot be defeated other than in accordance with law.  Since  the order passed by the trial court on the application filed by the prosecution seeking extension of time for completion of the investigation is already held to be bad in law, the statutory right that has accrued to the petitioners/accused immediately after the completion of the first 90 days of period which right has been availed of by them by filing an application under Section 167(2) of the Code, seeking statutory bail and also offering surety cannot be denied to the petitioners/accused. <br>The order dated 03.11.2020 passed on the application filed by the prosecution under the first proviso to Section 43-D(2)(b) of the Unlawful Activities (Prevention) Act, 1967, seeking extension of time for completion of the investigation and also the order dated 05.01.2021 passed by the the Special N.I.A. Court, Bangalore (CCH-50) on the application filed by the petitioners under Section 167(2) of the Code of Criminal Procedure, are hereby set aside<br>Consequently, the prayer made by the petitioners in their application filed under Section 167(2) of the Code seeking default  bail  is  allowed, subject to following conditions:</h4><div><br></div>', '1ea4499ffeed5d2cb0650cc9ccf638ac.jpg', '43d0d2cc4c73b3a989217f1c47f42d20.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-10', 1, '', '', '2021-06-17 04:52:33', '2021-06-17 04:54:57'),
(828, 'qMr7lzoIYWPwof0tpXsFZKSLs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Enemy and Evacuee properties. Action of the authorities passing orders under repealed enactments to usurp property of the citizens is highly reckless. The authorities must verify enactments before initiating proceedings. Karnataka High Court. 26:5:2021', '<h4>Sudha Sirwar and others vs The State of Karnataka and others. </h4><h4>Writ Petition 200999 of 2019 decided on 26 May 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/388742/1/WP200999-19-26-05-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/388742/1/WP200999-19-26-05-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: Petitioners in this writ petition call in question an order dated 28.01.2019 passed by the Regional Commissioner, Kalaburagi whereby the lands belonging to the petitioners are sought to be forfeited in favour of the Government invoking the provisions of the Administration of Evacuee Property Act, 1950 and the Enemy Property Act, 1968.<br>27. Since the order impugned is passed in terms of Section 6 of the Administration of Evacuee Property Act, 1950 and holding it to be an enemy property, it has become necessary to consider those enactments.<br>28. The Administration of Evacuee Property Act was promulgated in the year 1950 in the wake of partition of the Nation as to who could be the custodian of those properties. The Government of India by its notification dated 05.09.2005 repealed five enactments all promulgated between 1950 and 1954. The first of  the Act that was repealed was the Administration of Evacuee Property Act, 1950. ....the proceedings taken up and the order passed by the Regional commissioner holding that the property will have to be administered under the Administration of Evacuee Property Act, 1950 was without jurisdiction as the Regional commissioner invokes an enactment in the year 2019 which had long ago stood repealed in the year 2005.<br>29. There cannot be any better example of the authorities passing orders in a reckless manner. The order impugned bears the stamp of non-application of mind as the order refers to proceedings initiated under a repealed enactment. It is expected of the authorities  to verify the enactments before they could blindly initiate proceedings and follow it. The other enactment, though not specifically mentioned to, is the Enemy Property Act, 1968 which the Regional Commissioner refers to hold the subject property to be an enemy property.<br>30. An Enemy Property is dealt with under the provisions of the Enemy Property Act, 1968. To declare a particular property to be an enemy property, proceedings are required to be instituted by the custodian in terms of the Act. <br>32. It is incomprehensible as to how the Regional Commissioner could have drawn the proceedings under the Administration of Evacuee Property Act, 1950 which had by then stood repealed holding it to be a enemy property even under the Enemy Property Act, 1968 as amended from time to time. It was a duty cast upon the Regional Commissioner to have examined the provisions of the Act and not go by vague assertions made in a representation given by the sixth respondent. The pleading before him of all the parties were either allegations of violation of Inams Abolition Act, Land Reforms Act and a feign attempt was made to contend that the property was an enemy property.<br>36. In view of the preceding analysis, the order impugned of the Regional commissioner dated 28.01.2019  warrants  appropriate  interference.  </h4>', '9e209a546f0d3313f6449a79d6978848.jpg', 'de4772bc8c930894f79a5b77d75956b5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-26', 1, '', '', '2021-06-18 04:15:34', '2021-06-18 04:17:36'),
(827, 'FNJpXuUuJc8eMa4wrFndOohRD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Alteration of cheque date. If alteration is made when cheque is issued or made later with privity of parties and in the absence of any fraud, the cheque is valid and enforceable. Karnataka High Court.', '<h4><b>R. Rajappa vs K. Ashok Rai.&nbsp;<br></b></h4><h4><b>Criminal Revision Petition 1008 of 2017 decided on 11 June 2021.&nbsp;</b></h4><h4><b>Justice H.B Prabhakara Sastry.&nbsp;<br>&nbsp;</b></h4><h4><b>The present petitioner as the accused was tried by the Court of the Additional Chief Metropolitan Magistrate at Bangalore City for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and was convicted for the said offence by its judgment of conviction. Aggrieved by the same, the accused preferred a Criminal Appeal. The Sessions Judge’s Court in its order dismissed the appeal, confirming the judgment of conviction and order on sentence passed by the Trial Court. Aggrieved by the said judgment, the accused has preferred this revision petition.<br></b></h4><h4><b>9. After hearing the learned counsels for the parties, the only point that arise for my consideration in this revision petition is: Whether the judgments under revision are perverse, illegal and erroneous, warranting interference at the hands of this Court?<br></b></h4><h4><b>10. It is not in dispute that, the complainant and accused were known to each other and that the accused was the drawer of the cheque at Exhibit P-1. It is also not in dispute that, the said cheque, when presented for realisation by the complainant through his banker, the same came to be unpaid and returned with the banker’s endorsement “funds insufficient”. To this extent, the evidence of the complainant as PW-1 has remained un-denied and un-disputed from the accused’s side. ....issuance of cheque at Exhibit P-1 of which accused is the drawer in favour of the complainant, remains an undisputed fact.<br></b></h4><h4><b>12...Therefore, when the notice is sent to the correct and admitted address of the accused and under registered post and the postal acknowledgement card at Exhibit P-4 also shows that the same has been duly delivered to the addressee, the contention of the learned counsel for the petitioner/accused that the notice was not served upon the accused, is not acceptable.<br></b></h4><h4><b>16. The learned counsel for the petitioner/accused in his argument as a main ground in this revision petition, contended that, the cheque at Exhibit P-1 is materially altered, since the year&nbsp; shown in the&nbsp; cheque&nbsp; has been altered from “200...”&nbsp; &nbsp;to&nbsp; &nbsp;“ 2 0 0 3’. He submitted that under Section 87 of the N.I. Act, it is a material alteration done by the complainant, as such, the accused is not liable to the complainant.<br></b></h4><h4><b>17. The accused has not taken a specific contention regarding the material alteration of the cheque, at the earliest point of time in the Trial Court<br></b></h4><h4><b>18...if the alteration is made contemporaneously when the document came to be executed or if it is made at some subsequent period with the privity of the parties charged therein and in the absence of any fraud, the instrument would still be valid and enforceable.<br></b></h4><h4><b>19....Therefore, even assuming that, it is the complainant who has filled the date, still, the drawer of the instrument, by giving such an un-dated cheque to the complainant, has impliedly permitted the complainant to fill the date in the Negotiable Instrument (cheque) by himself....when a cheque is issued for a valid consideration with no dispute regarding the signature, amount and name, it cannot be said that, putting a date on the cheque by the payee who is the holder of the cheque in-due-course would amount to material alteration rendering the instrument void.<br></b></h4><h4><b>Conviction upheld .&nbsp;</b></h4>', 'acae9031d5a80f59933917ced317e6d9.JPG', 'c5b64e43faa5a3a5817d87fd42c37651.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-07', 1, '', '', '2021-06-18 00:42:59', '2023-02-07 13:40:43'),
(2640, 'UJIgp8PAV6ubiZ69ljDsWs9pp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Attornment of tenancy in favour of purchaser is not required to initiate eviction proceedings under the Karnataka Rent Act, 1999. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>P.V. Kosalram Vs K. Nagamma<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>House Rent Revision Petition 15 of 2014 decided on 9 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This HRRP under Section 46(1) of the Karnataka Rent Act,\r\n1999, is filed challenging the order dated 27.11.2013 passed by\r\nthe Chief Judge, Court of Small Causes at Bangalore in\r\nH.R.C.No.181/2012, dismissing the petition filed under Section\r\n27(2)(r) of the Karnataka Rent Act, 1999.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 2. The petitioner who is the purchaser of the subject\r\npremises by virtue of a registered sale deed dated 29.03.2011\r\nissued a notice to the respondent-tenant, calling upon him to\r\nvacate the subject premises, stating that he is the purchaser of\r\nthe subject premises and also the same is required for his\r\nresidential purpose.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n 3. The respondent issued a reply to the said notice\r\ndenying the relationship of landlord and tenant, and also stated\r\nthat there was no attornment of tenancy and also denied other\r\naverments made in the notice.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The tenant replied to the said notice denying the\r\nrelationship of landlord and tenant stating that there is no\r\nattornment of tenancy after the petitioner purchased the subject\r\npremises. The petitioner has categorically stated that he\r\nacquired the title over the property by virtue of the registered\r\nsale deed and the subject premises is required for his personal\r\noccupation and the petition is supported by an affidavit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Only requirement under Section 27(2)(r) of the\r\nKarnataka Rent Act, 1999 is that the petitioner landlord has to\r\nestablish that the subject premises is required for self\r\noccupation. The petitioner landlord has categorically stated that\r\nhe requires the subject premise for residential occupation .</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n 11. The provisions of Act, 1999 are applicable and there\r\nis no requirement for attornment of tenancy under the act to\r\nmaintain a petition for eviction, since the provisions of Transfer\r\nof Property act are not applicable to the subject premises.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 12. In view of the preceding analysis, the Petitioner\r\nhaving satisfied the requirement of Section 27(2)(r) of the Act,\r\n1999, the respondent is liable to be evicted. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> i) The HRRP is allowed. </b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3e79eae1fc917babe3ff369a46f0dd40.jpeg', '9b97f33d205a7544dd3d9b7834ac5260.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-08', 1, '', '', '2023-02-07 13:48:57', '2023-02-08 03:21:28'),
(829, '8cYJRSRHF5V1pW4W5sJCXxYlq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'This can happen only in \'Alice in Wonderland\'. Karnataka High Court quashes compromise decree entered before Lok Adalat by son faking legal death of his own mother. 4 June 2021 ', '<h4>Padmavati by lrs vs Tirumalarao and others. </h4><h4>Writ Petition 67072 of 2011 decided on 4 June 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/389497/1/WP67072-11-04-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/389497/1/WP67072-11-04-06-2021.pdf</a><br>Relevant paragraphs: This petition lays a challenge to the compromise decree dated 27.09.2010 entered in O.S.No.243 of 2010 in terms of compromise petition presented before the Lok-Adalath; the challenge is founded on the ground of fraud, fabrication & duplicity. Despite service of notice, the first respondent/plaintiff and the second respondent/defendant to the subject suit have chosen to remain unrepresented; however that will not relieve this Court from the duty of deciding the cause in accordance with law.<br>both the plaintiff and the sole defendant entered into a compromise and got the impugned Decree in terms thereof.<br>2. Brief facts:<br>i) The first respondent-Shri. Tirumalrao Kulkarni had filed a civil suit in O.S. No.243 of 2010 against the second respondent- Shri. Muralidhar Kulkarni; it is for a decree of declaration of title to the agricultural land admeasuring 08 A–16 G of Hulagera village in Kushtagi Taluka; in the Trial Court the respondent/defendant entered appearance after service of<br>notice; both the plaintiff and the sole defendant entered into a compromise and got the impugned Decree in terms thereof.<br>ii) Petitioner, who happens to be mother of the second respondent herein, after coming to know of mutation of entries in respect of the suit land in favour of the first respondent herein in terms of the decree, is putting the decree in challenge on the ground that fraudulently she was kept out of knowledge & suit fray; both the respondents have remained unrepresented though Court notice is duly served on them.<br>(b)The subject suit has been filed on 22.09.2010; the suit was valued at Rs.1,000/- & a court fee of Rs.25/- was paid; the Trial Court issued summons on 24.09.2010; the suit was got advanced to 27.09.2010 by moving the application; matter was mindlessly referred to Lok Adalath on a Joint Memo filed by the respondents No.1 and 2 herein on the same day; strangely, in no time, a compromise petition under XXIII Rule 3 of Civil Procedure Code, 1908, was moved before the Lok Adalath and stunningly, the suit culminated into the impugned decree on the very day i.e. 27.09.2010;  the  things moved with the rocket-speed as if the heavens were falling down.<br>(c) In the plaint of the first respondent, at Annexure-C, it is specifically admitted by him (at para 1) that the petitioner herein Smt.Padmavathi was owner of the subject land; it is also averred that her whereabouts were not known for about eight years or so and therefore, he doubts she being alive; the second respondent herein who happens to be one of several sons of the petitioner herein has supported the case of first respondent; he does not whisper about there being other co-owners namely his own brothers and the widow & children of a pre-deceased brother, though all they are necessary parties to this title suit arguably having interest in<br>(f) There is yet another aspect which needs to be a bit deliberated upon; the first respondent did not aver in the plaint that the petitioner Padmavati was dead & gone; nor did he claim that her whereabouts were not known to those who naturally would have heard of them; the provisions of Sections 107 & 108 read with Section 114 of the Indian Evidence Act, 1872, deal with presumption of death of a person; Section 107 provides that if a person is shown to have been alive within thirty years of the date on which the question whether he is alive or dead arises; there is a presumption of his being alive and the burden of proving the contrary lies on the asserter; Section 108 is in the nature of a proviso to Section 107 and it provides that when a person is continuously absent for seven years or more and not heard by the near & dear who would naturally have heard of him had he been alive, that person may be presumed to have died, unless the contrary is shown by the contender;<br>(g) A presumption of death of a person cannot be raised for an askance since death, apart from bringing a train of problems, has serious legal consequences, as well; firstly, the death of a person puts his legal personality to an end; ordinarily then opens succession to his estate; several other things too fall apart affecting the rights & liabilities of his survivors; Court need to be more vigilant in cases that are principally founded on the presumption of death; in the instant case, nothing is stated in the pleadings as to when the petitioner is said to have disappeared from the scene or that when her whereabouts were last heard of and by whom; similarly, what reasonable efforts were made to ascertain her whereabouts are also conspicuously absent in the pleadings; the very lady has knocked at the doors of Writ Court; after her death pendente lite, the L.Rs. too have come on record and they are none other than sons & grandchildren of a pre-deceased son; added to all this, the respondents have chosen to remain absent and unrepresented, despite service of notice. the suit land; mindlessly, the learned Judge of the Court below has directed issuance of notice, then has advanced the suit immediately and at once referred it for settlement before the Lok Adalath and that the suit is instantaneously decreed in terms of compromise; all this can happen only in “Alice in Wonderland”; fact is stranger than the fiction.<br>...neither the learned Trial Judge nor the Lok Adalath adverted to plaint averments at least to ascertain who were all the co-owners<br>of the property and whether declaration of title could be granted in their absence as parties to the suit; things have been accomplished in an abnormal haste and with culpable negligence; if title to a property can be so casually & carelessly declared in favour of plaintiff consequently divesting it from others i.e. non-parties, nothing less than the Institution of Property will be at stake; this is not a happy thing to happen in Judicial Process, to say the least. <br>(h) The second respondent is none other than a son of deceased petitioner and he has conspired against his own mother & brethren and defrauded them too hand in glove with respondent No.1; this can not be permitted to go with impunity; both the respondents are liable to be saddled with exemplary and penal costs; justice of the case warrants that the second respondent should not be permitted to take any share in the suit land, which he otherwise would have had; mercy & leniency in matters like this are misplacements.<br>In the above circumstances, this writ petition succeeds:<br>(i) a Writ of Certiorari issues quashing the impugned compromise decree and, that the suit of the first respondent is dismissed; the first respondent being liable is directed to pay a cost of Rs.2,00,000/- (Rupees Two lakh) only to the estate of the deceased petitioner within six weeks;<br>(ii) The entries in the Revenue Records concerning the suit land shall be mutated by the jurisdictional Tahasildar, in favour of the L.Rs. of the deceased petitioner jointly and to the exclusion of the second respondent herein, within eight weeks to be reckoned from the production of this Order, and report compliance to the Additional Registrar General of this Court within next two weeks failing which the official runs the risk of contempt proceedings apart from the possible levy of heavy costs.<br>(iii) It is open to the L.Rs. of the deceased to lodge police complaint against the respondents; the jurisdictional Police or the Court concerned may give due consideration to the pendency of this Writ Petition whilst viewing the delay brooked in lodging the complaint.</h4><div><br></div>', '7ae193d3edf409d5843747b817cc9d07.jpg', '3e9a1eebd08382c8482b372de4c871ac.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-04', 1, '', '', '2021-06-18 23:23:08', '2021-06-18 23:24:43');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(830, '00FnGMxzeH42jWPY0hxZAhTJ1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Sentence must be proportionate to the gravity of the guilt. It must not be either exorbitant or for namesake. Karnataka High Court cancels exorbitant sentence imposed on the accused. 11:6:2021', '<h4>R. Rajappa vs K. Ashok Rai.&nbsp;<br>Criminal Revision Petition 1008 of 2017 decided on 11 June 2021. See para 23<br>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/389131/1/CRLRP1008-17-11-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/389131/1/CRLRP1008-17-11-06-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs:</span> The present petitioner as the accused was tried by the Court of the Additional Chief Metropolitan Magistrate at Bangalore City for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and was convicted for the said offence by its judgment of conviction. Aggrieved by the same, the accused preferred a Criminal Appeal. The Sessions Judge’s Court in its order dismissed the appeal, confirming the judgment of conviction and order on sentence passed by the Trial Court. Aggrieved by the said judgment, the accused has preferred this revision petition.<br>9. After hearing the learned counsels for the parties, the only point that arise for my consideration in this revision petition is: Whether the judgments under revision are perverse, illegal and erroneous, warranting interference at the hands of this Court?<br>10. It is not in dispute that, the complainant and accused were known to each other and that the accused was the drawer of the cheque at Exhibit P-1. It is also not in dispute that, the said cheque, when presented for realisation by the complainant through his banker, the same came to be unpaid and returned with the banker’s endorsement “funds insufficient”. To this extent, the evidence of the complainant as PW-1 has remained un-denied and un-disputed from the accused’s side. ....issuance of cheque at Exhibit P-1 of which accused is the drawer in favour of the complainant, remains an undisputed fact.<br>12...Therefore, when the notice is sent to the correct and admitted address of the accused and under registered post and the postal acknowledgement card at Exhibit P-4 also shows that the same has been duly delivered to the addressee, the contention of the learned counsel for the petitioner/accused that the notice was not served upon the accused, is not acceptable.<br>16. The learned counsel for the petitioner/accused in his argument as a main ground in this revision petition, contended that, the cheque at Exhibit P-1 is materially altered, since the year&nbsp; shown in the&nbsp; cheque&nbsp; has been altered from “200...”&nbsp; &nbsp;to&nbsp; &nbsp;“ 2 0 0 3’. He submitted that under Section 87 of the N.I. Act, it is a material alteration done by the complainant, as such, the accused is not liable to the complainant.<br>17. The accused has not taken a specific contention regarding the material alteration of the cheque, at the earliest point of time in the Trial Court<br>18...if the alteration is made contemporaneously when the document came to be executed or if it is made at some subsequent period with the privity of the parties charged therein and in the absence of any fraud, the instrument would still be valid and enforceable.<br>19....Therefore, even assuming that, it is the complainant who has filled the date, still, the drawer of the instrument, by giving such an un-dated cheque to the complainant, has impliedly permitted the complainant to fill the date in the Negotiable Instrument (cheque) by himself....when a cheque is issued for a valid consideration with no dispute regarding the signature, amount and name, it cannot be said that, putting a date on the cheque by the payee who is the holder of the cheque in-due-course would amount to material alteration rendering the instrument void.<br>Conviction upheld<br>23. Since the Trial Court and the learned Sessions Judge’s Court, after analysing the evidence led before them by the parties in their proper perspective have arrived at a correct finding and proceeded to convict the accused for the alleged offence, I do not find any illegality, perversity or impropriety in the said finding, warranting any interference at the hands of this Court. However, the sentence ordered by the Trial Court which is further confirmed by the learned Sessions Judge’s Court when verified, it can be found that the Trial Court, after convicting the accused for the alleged offence punishable under Section 138 of the&nbsp; N.I.&nbsp; Act&nbsp; has&nbsp; sentenced&nbsp; him&nbsp; to pay a fine of a sum of Rs. 17,05,000/- and in default to pay the fine amount, has ordered him to undergo simple imprisonment for a period of six months. Out of the fine amount recoverable under Section 357 of the Code of Criminal Procedure,&nbsp; a sum of `17,00,000/- is directed&nbsp; to be paid to the complainant and the remaining fine of a sum of<br>`5,000/- is ordered to be forfeited to the State.<br>24. It is the sentencing policy that, the sentence ordered must be proportionate to the gravity of the proven guilt of the accused. It must not be either exorbitant or for namesake.<br>25. Thus, when the facts and circumstances of the instant case is considered, it can be seen that, admittedly, the complainant is a real estate businessman and a hotelier. The accused in his deposition has shown his avocation as a coolie.&nbsp; He had agreed to sell his agricultural land to the complainant as per the agreement at Exhibit P-5 as could be made out from the said document. The said agreement does not quantify any damages, except stating that in case of any default the&nbsp; proposed purchaser had a right to take suitable legal action against the vendor and is entitled to recover the loss incurred by him. In such a circumstance, the&nbsp; quantum of fine imposed&nbsp; which is `1,05,000/- in addition to the cheque amount appears&nbsp; to be on a higher side. As such, in order to make the said sentence of fine proportionate to the gravity of the proven guilt against the accused, particularly in the light of the facts and circumstances of the present case, the said fine amount&nbsp; imposed requires to be reduced. It is for that limited purpose only, the present revision petition deserves to be allowed-in- part.<br>The order on sentence passed by the learned XIX Additional Chief Metropolitan Magistrate at Bangalore City, in C.C.No.26605/2014 dated 01-07-2016, sentencing the accused before it (petitioner herein) to pay a sum of `17,05,000/-, which was further confirmed by the learned LIX Additional City Civil and Sessions Judge, Bangalore City, in Criminal Appeal No.786/2016 dated 01-09-2017, is modified and the fine amount is reduced and confined to a sum of Rs. 6,40,000/-.</h4>', '8da54d20730d0871788536d4f71a60df.jpg', '11c0db94a62056db04927d81686febcd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-11', 1, '', '', '2021-06-19 01:46:15', '2021-06-19 01:46:15'),
(831, 'SwB7LT4spBIz5jKT1vV88ItHT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Land Reforms Act. Tenancy created under registered lease deed by grandfather during minority of grandson. Same is binding unless the lease is challenged within three years after grandson attains majority. Karnataka High Court.', '<h4>Guddappa vs The State of Karnataka and others. </h4><h4>Writ Petition 64914 of 2012 decided on 5 April 2021. </h4><h4>Justice Hemant Chandangoudar.&nbsp;</h4><h4><br></h4><h4>This writ petition is filed challenging the order dated 13.06.2012 passed by respondent No.2 at Annexure-G granting occupancy rights in favour of respondent No.3 in respect of land bearing R.S.No.134/2+3 measuring 3 acres 30 guntas situated at Kalagonda Village, Byadagi Taluk, Dist. Haveri.<br></h4><h4>8. A perusal of the registered advance lease deed dated 23.01.1973 clearly indicates that respondent No.3 was put in possession of the land in question as tenant subject to payment<br>of advance lease amount of Rs.4,000/- and maternal grand father of the petitioner has acknowledged the receipt of the same. Before the land Tribunal, the petitioner in his cross- examination has clearly admitted that the respondent No.3 is cultivating the land in question as tenant from the date of execution of the advance lease deed. It is also no tin dispute that the name of Respondent No.3 is entered as tenant in the revenue Records as on the appointed date . Hence , the registered deed executed in favour of R-3 is an advance lease deed ant not a mortgage deed as contended by the Petitioner .&nbsp;<br></h4><h4>9. Even otherwise Section 4 of the Karnataka Land Reforms Act, 1961 specifies that , a person lawfully cultivating any land belonging to another person shall be deemed to be a tenant, if such land is not cultivated personally by the owner and if such person has not filed an application within one year from the appointed date ie.1.03.1974 . In the instant case, admittedly, respondent No.3 was cultivating the land in question. The petitioner at any point of time has not submitted an application within one year from the date of appointed date to declare that such a person is not a tenant. In the absence of&nbsp;filing of an application by the petitioner, the respondent No.3 is held to be deemed tenant as defined under Section 4 of the Karnataka Land Reforms Act.<br></h4><h4>10. The lease executed in favor of the Respondent No.3 by the maternal grandfather of the Petitioner who was a minor then was for period of 20 years w.e.f 23.01.1973 to&nbsp; 22.01.1993. The&nbsp; prior permission from the competent Court&nbsp; was not obtained attracting Section Section 8(2)(b) of Hindu Minority and Guardianship Act, 1956. Section 8(3) of the said Act specifies that any alienation made in contravention of Section 8(2)(b) of the said act is voidable at the instance of the minor. The alienation cannot be said to be void and it can only be voidable at the instance of the Petitioner as per Section 8(3) of the said act. The Apex Court in the case of G.Annamalai Supra, has held that the minor having avoided the lease immediately on attaining majority , the lease became void from its inception .<br></h4><h4>11. In the present case, petitioner has not challenged the advance lease deed executed by the defacto guardian within three years from the date of attaining majority. The Petitioner&nbsp;for the first time in this writ petition has raised the ground that the lease executed in favour of Respondent No.3 is a void document and having not avoided the advance lease deed executed in favour of the Petitioner within three years from the date of attaining majority, the Petitioner cannot now contend that the lease executed in favour of Respondent No.3 is void from its inception . The Apex Court in the case of M.Arumugam Supra, in para 17 has held that the document can be said to be a voidable document provided that the same is challenged within three years of minor attaining majority.&nbsp;<br></h4><h4>13. In the circumstance, I do not find any illegality or perversity in the order dated 13.06.2012 passed by respondent No.2 at Annexure-G granting occupancy rights in favour of respondent No.3.<br><br></h4>', 'f2b9b32b93db45380463a5e3f566ca8d.jpeg', '7cbf9c5af8669b13d9d208e4d0a4e84a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-02', 1, '', '', '2021-06-19 02:04:05', '2023-02-02 14:27:31'),
(2625, 'MbjXTslDejAwQKJJRlQxwLKXL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Drunken driving resulting in accident will not absolve Insurance Company’s liability when there is a valid insurance policy. Kerala High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Muhammed Rashid Vs T.G. Rajendran.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>MACA 616 of 2018 decided on 30 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sophy Thomas.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The appellant, while travelling in an autorickshaw, met with a\r\nroad traffic accident on 19.12.2013, at 3.10 p.m. KL-10/AD-1819 car\r\ndriven by the 1\r\nst respondent, in a rash and negligent manner, dashed\r\nagainst the autorickshaw, in which he was travelling and he was\r\nthrown out to the road, and he sustained serious injuries. He was\r\nadmitted and treated for seven days at Al-Shifa Hospital,\r\nPerinthalmanna, and even after discharge, he had to take rest for six\r\nmonths. He was a driver by profession earning monthly income of\r\nRs.12,000/-. Though he approached the Tribunal claiming\r\ncompensation of Rs.4,00,000/-, the Tribunal awarded only\r\nRs.2,40,000/-, against which he has preferred this appeal.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. According to the appellant, he was a driver by profession,\r\naged only 25, earning monthly income of Rs.12,000/-. Learned\r\nTribunal fixed his notional income @ Rs.7,500/- and loss of earning\r\nwas assessed for six months only. According to the appellant, the\r\nnotional income fixed was too low, when compared to his actual\r\nincome. Though he did not adduce any evidence to prove his actual\r\nincome, since he was aged only 25 at the time of accident which\r\noccurred in the year 2013, going by the decision Ramachandrappa v <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Manager, Royal Sundaram Alliance Insurance Company Limited\r\n[AIR 2011 SC 2951], he was eligible to get his notional income fixed\r\n@ Rs.9,000/-. So, for loss of income for six months, he was eligible to\r\nget Rs.54,000/-. Since he was already paid Rs.45,000/- by the\r\nTribunal, he is eligible to get the balance Rs.9,000/- under the head\r\n‘loss of earning’.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. So, the learned Tribunal directed the 3\r\nrd respondent\r\nInsurance Company to pay the compensation amount to the appellant\r\nand permitted the Insurance Company to recover the same from\r\nrespondents 1 and 2, the driver and owner of the offending vehicle.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. Regarding the question of violation of the terms and\r\nconditions of Insurance Policy, and the liability of the insurance\r\ncompany to indemnify and to recover the same from the insured, the\r\nApex Court in New India Assurance Co. v. Kamala & Others\r\n[(2001) 4 SCC 342], held that When a valid Insurance Policy has been\r\nissued in respect of a vehicle as evidenced by a Certificate of\r\nInsurance, the burden is on the insurer to pay the third parties,\r\nwhether or not there has been any breach or violation of the Policy\r\nconditions. But the amount so paid by the insurer to third parties can\r\nbe allowed to be recovered from the insured, if as per the Policy\r\nconditions the insurer had no liability to pay such sum to the insured.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. In Bajaj Allianz General Insurance Co.Ltd., rep by its\r\nDeputy Manager (Legal) vs. Manju Devi and Others [2014 SCC\r\nOnLine AP 232], a Division Bench of the High Court of Andhra Pradesh\r\nheld that ‘Even if there is any violation of terms and conditions of the\r\nPolicy, the Insurance Company is under an obligation to satisfy the\r\nclaim of Third parties; since the liability of the Insurance Company\r\nduring subsistence of the liability under the Policy is statutory in\r\nnature and at best, the Insurance Company has to satisfy the\r\nCompensation and recover the same from the insured.’<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. In Bajaj Allianz’s case cited (supra), the High Court of\r\nAndhra Pradesh considered this issue, and held that the Insurance\r\nCompany cannot avoid its liability totally on account of drunken driving\r\nof the driver, as it is not a ground to exonerate the Insurance Company\r\nfrom payment of compensation as far as third parties are concerned;\r\nas the policy is statutory in nature.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. Ext. B1, the Insurance policy stipulates the condition that\r\nthe Insurance Company shall not be liable to make any payment in\r\nrespect of any accidental loss or damage suffered whilst the insured or\r\nany person driving the vehicle with the knowledge and consent of the\r\ninsured is under the influence of intoxicating liquor or drugs. Since the\r\noffending vehicle was validly insured with the 3\r\nrd respondent-Insurance\r\nCompany and the appellant/claimant is a third party, the Company is\r\nliable to compensate him initially; but the Company is eligible to\r\nrecover the same from respondents 1 and 2.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. As far as a third party is concerned, the Insurance Policy <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">with regard to liability to pay compensation is enforceable, as he is not\r\nsupposed to know about the intoxicated state of the driver. Therefore,\r\nthe violation of Policy conditions will not exonerate the Insurance\r\nCompany from payment of compensation to third parties, though the\r\ncar was driven by the driver in a drunken state. As already found,\r\nrespondents 1 and 2, the driver and owner of the offending vehicle,\r\nremained ex parte throughout. Exts.B2 and B3 clearly show that the\r\n1\r\nst respondent drove the car in a drunken state and he was\r\nchargesheeted for drunken driving. The 2\r\nnd respondent owner\r\npermitted the 1\r\nst respondent driver to drive the vehicle in a drunken\r\nstate and so, he is also vicariously liable for the act of the 1\r\nst\r\nrespondent. So ultimately the liability is of respondents 1 and 2,\r\nthough the 3\r\nrd respondent-Insurance Company has to make the\r\npayment initially.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">24. In the result, the 3\r\nrd respondent insurer is directed to\r\ndeposit the enhanced compensation of Rs.39,000/- (Rupees Thirty\r\nNine Thousand only) in the bank account of the appellant with interest\r\nat the rate of 7% per annum from the date of petition till the date of\r\ndeposit, within a period of two months from the date of receipt of a\r\ncopy of this judgment. The deposit must be in terms of the directives </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and\r\nclarified in O.M.No.D1/62475 /2016 dated 07/11/2019 after deducting\r\nthe liabilities, if any, of the appellant towards Tax, balance court fee\r\nand legal benefit fund. The 3\r\nrd respondent can recover the amount so\r\ndeposited from respondents 1 and 2 and their assets.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>The appeal is allowed accordingly. No order as to costs.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '822bdd3b2a09a0d2316ebc6fe047510c.jpeg', '18b414c1c03c2829d2e10f122510fcd5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-03', 1, '', '', '2023-02-02 14:55:41', '2023-02-03 10:03:09'),
(832, '5TFaR1WuIUvfs4YlpgTYMPWAR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'POCSO Act. A Muslim man cannot marry a minor girl and sexually assault her quoting personal law. Personal law of Muslim permitting second marriage cannot be in contravention of POCSO Act. Karnataka High Court. 16 June 2021', '<h4>Rahul@Nayaz Pasha vs State of Karnataka and another. </h4><h4>Criminal Petition 1173 of 2021 decided on 16 June 2021. </h4><h4>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/389504/1/CRLP1173-21-16-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/389504/1/CRLP1173-21-16-06-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: This petition is filed by the petitioner-accused No.1 under Section 439 of Cr.P.C., for granting regular bail in Crime No.126/2020 registered by Tiptur Town Police&nbsp; for the offences punishable under Sections 363, 342, 114, 506, 376 read with Section 34 of IPC, Sections 4, 6, 17, 18 of the Protection of Children from Sexual Offences Act and Sections 9 and 10 of the Child Marriage Restraint Act.</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">4. </span>Learned counsel for the petitioner contended that the petitioner and the victim fell in love with each other.&nbsp; Both of them eloped and married in the presence of Mutavali&nbsp; and the marriage is a registered marriage. A copy of the marriage certificate is also produced.&nbsp; Though&nbsp; the petitioner is a married man, accused No.2 is the wife of the petitioner and the victim is presently residing in the house of the petitioner-accused No.1. Learned counsel for the petitioner further submits that the medical records reveal that there is no sexual assault on the victim. She has given history to the doctor that she has not stated&nbsp; anything&nbsp; &nbsp;about&nbsp; the&nbsp; sexual&nbsp; assault. Therefore, he contended that the petitioner-accused No.1 is entitled for bail<br></h4><h4><b><span style=\"background-color: rgb(255, 255, 0);\">7.</span> </b>Upon hearing the arguments and perusal of the records reveal that admittedly the age of the victim is 15 years as on the date of the incident&nbsp; The age of&nbsp; the victim is 15 years and her consent is immaterial. Though the second marriage is permissible under the Mohammedan Law, but the personal law cannot override the Special Law of POCSO, Child Marriage Restraints Act and General Penal Code of this&nbsp; Country.&nbsp; Merely&nbsp; the parties are Mohammedan that does not mean that the petitioner-accused No.1 has right to marry a minor girl by enticing and abducting her. The consent or will of&nbsp; the victim minor girl is immaterial and even if she has voluntarily went with the accused, that amounts to abduction or kidnapping under Section 363 of IPC. The accused not only abducted the victim minor girl aged about 15 years, he got married her which attracts Sections 9 and 10 of the Child Marriage Restraint Act. Apart from that, he has sexually assaulted her which also attracts Sections 4 and 6 of POCSO Act....Therefore, even otherwise, if she has given consent for abduction or marriage or sexual&nbsp; intercourse, her consent is immaterial as she was minor and&nbsp; even notice was issued to respondent No.2, the complainant and the de facto complainant appeared through an advocate and produced the affidavit of the victim stating that the victim herself went along with the accused and got married and she is residing in the house of the petitioner-accused. That cannot be taken as her consent for&nbsp; granting&nbsp; bail. Even if the victim stated ‘no objection’, but as she is a minor girl, it cannot be considered as a valid ‘no objection’ as it is against the law.&nbsp; Therefore, in the interest&nbsp; of public at large and with an intention to curtail such type of sexual offences, the Court shall ignore the consent of a minor girl giving ‘no objection’ for granting bail to the accused and the Court should deal with such an heinous offence with an iron hand.</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">10.</span><b> </b>In view of the principle laid down by the Hon’ble Supreme Court and looking to the facts and circumstances, I am of the view that the petitioner-accused No.1 is not entitled for bail and the criminal petition deserves to be dismissed.</h4><h4>Accordingly, the criminal petition is dismissed.</h4><p><br></p>', 'b2823a09e5de997d6a4655c8c9dae09e.jpg', '71616fa207514fd78cb70907cdf46e41.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-16', 1, '', '', '2021-06-19 03:14:26', '2021-06-20 15:14:01'),
(833, 'xRTt28xiVl9AyF0WKYfvgfWGl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Caste Certificate.  Only aggrieved person, such as employer or person deprived of caste certificate or post in Govt or public service or seat educational institution on account of fraudulent caste certificate can question. Kar HC. 3:6:2021', '<h4>R.S.Mahadev vs B.R.Gopamma and others. </h4><h4>Writ Appeal 1242 of 2019 decided on 3 June 2021. </h4><h4>Justice B.V.Nagarathna and Justice Hanchate Sanjeevkumar. </h4><h4>Judgment Link: <a href=\"https://karnatakajudiciary.kar.nic.in/judgements/WA-1242-2019.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/WA-1242-2019.pdf</a></h4><h4>7. Appellant’s counsel did not dispute the fact\r\nthat respondent No.1 was not born as a Scheduled Caste.\r\nHowever, she got married to Govindaiah-a person\r\nbelonging to the Scheduled Caste Community. It is also\r\nnot in dispute that she has obtained Caste Certificate in\r\nthe year 1979 to the effect that she belongs to the\r\nSchedule Caste Community. Learned counsel for the\r\nappellant contended that when respondent No.1 belonged\r\nto Vokkaliga community which is not a Scheduled Caste\r\ncommunity and merely because she married Govindaiah-a\r\nperson belonging to the Schedule Caste, she could not\r\nhave had the benefit of the Caste Certificate being issued\r\nto her that she belongs to the Schedule Caste community. <br></h4><h4>8. He contended that the Hon’ble Supreme Court\r\nin its latest judgment in Chairman and Managing\r\nDirector, Food Corporation of India & others vs.\r\nJagdish Balaram Bahira & Others [(2017)8 SCC 670]\r\n(Jagdish Balaram Bahira) has categorically held, if, the\r\nclaim of being a member of the Scheduled Caste or Schedule Tribe on verification is found to be false, the\r\nsame would have to be treated as invalid and any\r\nappointment made on that fact would be void ab initio and\r\nnon est. Thereafter, cancellation of the appointment would\r\nfollow as a necessary corollary. The rationale behind\r\nwithdrawal of benefits secured is on the basis that a false\r\ncaste certificate would have been obtained by\r\nmisrepresentation or by fraud.  <br></h4><h4>16. The undisputed facts are that the first\r\nrespondent herein by birth did not belong to the Scheduled\r\nCaste. However, she married Govindaiah — a person\r\nbelonging to the Scheduled Caste community. It is also not\r\nin dispute that she was issued a caste certificate stating,\r\nshe belonged to the scheduled caste community in the year 1979 and thereafter, was appointed as a Kannada\r\nTeacher. </h4><h4>17. It is not necessary to reiterate the proceedings that have taken place in the interregnum for, what was challenged before the learned Single Judge in Writ Petition No.8209/2016, out of which this appeal arises, was, order dated 26.12.2015 and the first information report registered against the first respondent on 19.12.2014. The same have been quashed by the learned Single Judge and a direction has been issued that the petitioner is entitled to terminal benefits on the basis of the caste certificate issued in her favour, which means that the appointment of the first respondent on the basis of the said caste certificate is held to be valid and legal. However, learned Single Judge has stated that she would not be entitled to claim any benefit available to a person belonging to Scheduled Caste in future.<br></h4><h4>18. The learned Single Judge during the course of his\r\ndetailed order, has referred to several decisions of the\r\nHon’ble Supreme Court as well as this Court.<br></h4><h4>23. A person can be said to be aggrieved only when\r\na person is denied a legal right by someone who has a\r\nlegal duty to do something or abstain from doing\r\nsomething. Existence of the right is implicit for the\r\nexercise of the extraordinary jurisdiction by the High Court\r\nunder Article 226. For instance, a rival in a trade has no\r\nlocus standi to challenge the grant of licence to other\r\ntrader on the ground that the licence was granted illegally\r\nor suffers from defect of jurisdiction, vide J.M.Desai vs.\r\nRoshan Kumar, [AIR 1976 SC 578], (J.M.Desai);\r\nNagpur Rice and Flour Mills vs. Teekappa Gowda and\r\nBrothers, [AIR 1971 SC 246] (Nagpur Rice and Flour\r\nMills). <br>25. The expression “a person aggrieved/aggrieved\r\nperson/aggrieved” could be further explained with\r\nreference to K.J.Iyer’s “Judicial Dictionary”, 16th Edition\r\n(2014)....<br></h4><h4>27. The appellant herein has not made out a case as\r\nto how he was aggrieved by issuance of a caste certificate\r\nin favour of respondent No.1. He was not a person who\r\nhad applied to the post of Kannada Teacher in the Aided\r\nInstitution, to which respondent No.1 was appointed. He\r\nhas not been denied any benefit on account of issuance of\r\nthe caste certificate in favour of respondent No.1, which he\r\nhad claimed. Therefore, the appellant had no right to file a\r\ncomplaint against respondent No.1 herein and he had no\r\nlocus standi to do so. <br></h4><h4>34. But, in the instant case, there was no falsehood,\r\nfabrication, manipulation or concealment made by\r\nrespondent No.1, while being issued the caste certificate in\r\nthe year 1979. The same was issued to her on the basis of\r\nthe law prevailing at the relevant point of time, namely the\r\njudgment of the Hon’ble Supreme Court in N.E.Horo.\r\nSubsequent declaration of law by overruling the N.E.Horo\r\ncannot ipso facto result in the caste certificate issued to\r\nrespondent No.1 herein being fraudulent, illegal or invalid.\r\nIn this regard, we find considerable force in the submission\r\nof the learned counsel for respondent No.1<br></h4><h4>35. We have perused the detailed order of the\r\nlearned Single Judge. We do not find any merit in the\r\nappeal. Hence, the appeal is dismissed. </h4>', '1cd67497d510bc51f807edf2af48ba88.png', 'af5957dde3b2f780da0e0dbcffe3d7fb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-03', 1, '', '', '2021-06-20 18:38:27', '2021-06-20 18:43:28');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(834, 'O36iJbKbX6z9sU15jPteXSXeO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Important Judgments on Adverse Possession - Compiled by S. Basavaraj, Daksha Legal ', '<h4><u style=\"\">P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314. </u><br>But it is well settled that in order to establish adverse possession of non-coheir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the nonpossessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be one the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir, not in possession, merely by any secret hostile animus on his own part in derogation of the other co-heirs’ title. It is a settled rule of law that as between co-heirs there<br>must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to be knowledge of the other so as to constitute ouster.”<br></h4><h4><u>S.M. Karim v. Bibi Sakina, AIR 1964 SC 1254</u><br>Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did and a mere suggestion in the relief clause that there was an uninterrupted possession for “several 12 years” or that the plaintiff had acquired “an absolute title was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea.<br></h4><h4><u>Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543</u><br>15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another\'s title. One who holds possession on behalf of another, does not by mere denial of that other\'s title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.<br></h4><h4><u>Mohan Lal v. Mirza Abdul Gaffar [Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639</u><br>4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant\'s claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.<br></h4><h4><u>Hansraj v. Jagminder Singh; 2017 (8) AD (Delhi) 483</u><br>9. Adverse possession has to be proved by clear cut evidence showing when the adverse possession commences, i.e., the date, month and year or at least the month and year and adverse possession has to be proved to be nec vi, nec clam, nec precario. Wrong possession is not automatically an adverse possession. Also for commencement of adverse possession, it should be brought to the notice of the true owner the claim of adverse possession so that the true owner can take all steps in accordance with law.”,<br></h4><h4><u>Maria Margadia Sequeria v. Erasmo Jack De Sequeria (2012) 5 SCC 370</u><br>70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.<br>“(a) Who is or are the owner or owners of the property; (b) title of the property; (c) who is in possession of the title documents (d) identity of the claimant or claimants to possession;(e) the date of entry into possession; (f) how he came into possession-whether he purchased the property or inherited or got the same in gift or by any other method; (g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount; (h) If taken on rent license fee or lease-then insist on rent deed, license deed or lease deed; (i) who are the persons in possession/occupation or otherwise living with him in what capacity; as family member friends or servants etc; (j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and (k) basis of his claim that not to deliver possession but continue in possession.<br></h4><h4><u>Abdul Salam and Others vs Imrana Siddiqui and Others . 2019 SCC OnLine All 3924 : (2019) 144 RD 229 : (2019) 134 ALR 54</u><br>40. In order to arrive at a finding regarding adverse possession it is absolutely<br>essential for a person raising such a plea to plead and prove the following ingredients: —<br>(a) on what date, he came into possession;<br>(b) what was the nature of his possession;<br>(c) whether the factum of possession was not known to the other party;<br>(d) how long his possession has continued; and<br>(e) his possession was open and undisturbed.<br></h4><h4><u>State of Haryana v. Mukesh Kumar  (2011) 10 SCC 404</u><br>31. A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. It is for him to clearly plead and establish all facts necessary to establish adverse possession. Though we got this law of adverse possession from the British, it is important to note that these days English Courts are taking a very negative view towards the law of adverse possession. The English law was amended and changed substantially to reflect these changes, particularly in light of the view that property is a human right adopted by the European Commission<br></h4><h4><u>D.N. Venkatarayappa v. State of Karnataka, (1997) 7 SCC 567 </u><br>Therefore, in the absence of crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession.<br></h4><h4><u>Md. Mohammad Ali (Dead) By LRs. v. Jagadish Kalita, (2004) 1 SCC 271,</u><br>21. For the purpose of proving adverse possession/ouster, the defendant must also prove animus possidendi.<br>22. ….We may further observe that in a proper case the court may have to construe the entire pleadings so as to come to a conclusion as to whether the proper plea of adverse possession has been raised in the written statement or not which can also be gathered from the cumulative effect of the averments made therein.<br></h4><h4><u>Karnataka Board of Wakf v. Govt. of India, (2004) 10 SCC 779 </u><br>11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won\'t affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.<br></h4><h4><u>Saroop Singh v. Banto, (2005) 8 SCC 330</u> <br>29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commencesfrom the date the defendant\'s possession becomes adverse. (See Vasantiben<br></h4><h4><u>Prahladji Nayak v. Somnath Muljibhai Nayak, (2004) 3 SCC 376</u><br>30. ‘Animus possidendi’ is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus.<br></h4><h4><u>M. Durai v. Muthu, (2007) 3 SCC 114 </u><br>7. …In terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession.<br></h4><h4><u>T. Anjanappa v. Somalingappa (2006) 7 SCC 570</u><br>20. … The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner\'s title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former\'s hostile action<br></h4><h4><u>P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59</u><br>5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. <br></h4><h4><u>Ram Janmabhumi Temple Case. M. Siddiq vs Mahant Suresh Das(2020) 1 SCC 1</u><br>1142. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the plaintiffs in Suit No. 4 ought to be cognizant of the fact that any claim of adverse possession against the Hindus or the temple would amount to an acceptance of a title in the latter. Dr. Dhavan has submitted that this plea is a subsidiary or alternate plea upon which it is not necessary for the plaintiffs to stand in the event that their main plea on title is held to be established on evidence. It becomes then necessary to assess as to whether the claim of adverse possession has been established.<br>1143. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous possession which meets the requirement of being nec vi nec claim and nec precario. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case. …<br></h4><h4><u>Devi v. Prem Prakash, (1995) 4 SCC 496.</u><br>28. ‘Ouster’ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.”<br></h4><h4><u>Annasaheb Bapusaheb Patil v. Balwant alias Balasaheb Babusaheb Patil, (1995) 2 SCC 543 : AIR 1995 SC 895.</u><br>15…The mere fact that one of the coparceners is not in joint possession does not mean that he has been ousted. The possession of the family property by a member by of the family cannot be adverse to the other members but must be held to be on behalf of himself and other members. The possession of one, therefore, is the possession of all. The burden lies heavily on the member setting up adverse possession to prove adverse character of his possession by establishing affirmation that to the knowledge of other member he asserted his exclusive title and the other members were completely excluded from enjoying the property and that such adverse possession had continued for the statutory period. Mutation in the name of the elder brother of the family for the collection of the rent and revenue does not prove hostile act against the other….<br></h4><h4><u>Chewang Dorjee Bhutia vs Ruth Haleem and Others.  2020 SCC OnLine Sikk 127 : AIR 2021 Sikk 12</u> <br>43. To establish a plea of adverse possession, the person who claims adverse possession is required to establish on what day he came into possession, what was the nature of the possession, whether the factum of possession was known to other party, how long his possession has continued and his possession was open and undisturbed. When the appellant has even failed to establish his possession, question of his possessing the suit land by way of adverse possession cannot arise. In the present fact situation, it cannot be said that absence of an issue regarding plea of adverse possession set up by the appellant is fatal to the case or that the same had vitiated the proceedings. It is to be noted that in Civil Suit No. 23 of 1980 also, the court had rejected the plea of adverse possession set up by the appellant. In view of the above discussion, substantial question of law no. 4 is answered against the appellant.<br></h4><h4><u>Ram Nagina Ram v. Daya Ram Nagina Ram, AIR 1961 Punj 528, </u><br>(1) A co-owner has an interest in the whole property and also in every parcel of it.<br>(2) Possession of the joint property by one co-owner is in the eye of law, possession of all even if all but one are actually out of possession.<br>(3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.<br>(4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession, of a co-owner must not only be exclusive but also hostile to the knowledge of the other, as, when a co-owner openly asserts his own title and denies that of the other.<br>(5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.<br>(6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners.<br>(7) Where a co-owner is in possession of separate parcels under an arrangement consented to by the other co-owners, it is not open to any one to disturb the arrangement without the consent of others except by filing a suit for partition.<br></h4><h4><u>Ashok Kapoor v. Murtu Devi, 2016 (1) Shim. LC 207 </u><br>46. On consideration of the various judicial pronouncements and on the basis of the dominant view taken in these decisions on the rights and liabilities of the co-sharers and their rights to raise construction to the exclusion of others, the following principles can conveniently be laid down:—<br>(i) a co-owner is not entitled to an injunction restraining another co-owner from exercising his rights in the common property absolutely and simply because he is a co-owner unless any act of the person in possession of the property amounts to ouster prejudicial or adverse to the interest of the co-owner out of possession.<br>(ii) Mere making of construction or improvement of, in, the common property does not amount to ouster.<br>(iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property.<br>(iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction to prevent such act which is detrimental to his interest.<br>(v) before an injunction is issued, the plaintiff has to establish that he would sustain, by the act he complains of some injury which materially would affect his position or his enjoyment or an accustomed user of the joint property would be inconvenienced or interfered with. (vi) the question as to what relief should be granted is left to the discretion of the Court in the attending circumsta nces on the balance of convenience and in exercise of its discretion the Court will be guided by consideration of justice, equity and good conscience.<br>47. The discretion of the Court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff:—<br>(i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff\'s rights by issue of a temporary injunction;<br>(ii) when the need for protection of the plaintiff\'s rights is compared with or weighed against the need for protection of the defendant\'s right or likely infringement of the defendant\'s rights, the balance of convenience tilting in favour of the plaintiff; and<br>(iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted.<br>In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff\'s conduct is free from blame and he approaches the Court with clean hands.<br></h4><h4><u>Jatinder Kumar v. Kusum Lata, Latest HLJ 2016 (1) (HP) 638.</u> <br>46. On consideration of the various judicial pronouncements and on the basis of the dominant view taken in these decisions on the rights and liabilities of the co-sharers and their rights to raise construction to the exclusion of others, the following principles can conveniently be laid down:—<br>(i) a co-owner is not entitled to an injunction restraining another co-owner from exceeding his rights in the common property absolutely and simply because he is a co-owner unless any act of the person in possession of the property amounts to ouster prejudicial or adverse to the interest of the co-owner out of possession.<br>(ii) Mere making of construction or improvement of, in, the common property does not amount to ouster.<br>(iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property.<br>(iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction to prevent such act which is detrimental to his interest. (v) before an injunction is issued, the plaintiff has to establish that he would sustain, by the act he complains of some injury which materially would affect his position or his enjoyment or an accustomed user of the joint property would be inconvenienced or interfered with.<br>(vi) the question as to what relief should be granted is left to the discretion of the Court in the attending circumstances on the balance of convenience and in exercise of its discretion the Court will be guided by consideration of justice, equity and good conscience.<br></h4><h4><u>Ramesh Kumar vs Sheetal and others 2021 SCC Online HP 89:2021 AIR CC 643</u><br>17. It is quite apparent from the aforesaid exposition of law that a co-owner is not entitled to an injunction restraining another co-owner from exercising his rights in the common property absolutely and simply because he is a co-owner unless any act of the person in possession of the property amounts to ouster prejudicial or adverse to the interest of the co-owner out of possession. Mere making of construction or improvement in the common property does not amount to ouster rather, if by any act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property. If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction to prevent such act which is detrimental to his interest.<br></h4><h4><u>Seema  Arshad Zaheer v. Municipal Corporation of Greater Mumbai, (2006) 5 SCC 282</u><br>29. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff : (i) existence of a prima facie case as pleaded, necessitating protection of plaintiff\'s rights by issue of a temporary injunction; (ii) when the need for protection of plaintiff\'s rights is compared with or weighed against the need for protection of defendant\'s rights or likely infringement of defendant\'s rights, the balance of convenience tilting in favour of plaintiff; and (iii) clear possibility of irreparable injury being caused to plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff\'s conduct is free from blame and he approaches the court with clean hands.</h4><p><br></p>', '456bcd0079bb5f1271fbd4b176cdd55a.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-20', 1, '', '', '2021-06-21 03:56:56', '2021-06-21 04:10:54'),
(835, 'FQ7ALto65kqwMAAt2aPVdBiN8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. 1881. Section 138. Notice demanding lesser amount than the cheque amount, after giving deduction to part payment, is NOT a defective notice. Karnataka High Court.', '<h4>R.Hanumantharaya vs A.P.Krishnakumar. </h4><h4>Criminal Revision Petition 56 of 2019 decided on 15 June 2021.&nbsp;</h4><h4>Justice H.B. Prabhakara Sastry.&nbsp;</h4><h4>The present petitioner as the accused was tried by the Court of the learned XVIII Additional Chief Metropolitan Magistrate, Bengaluru, (hereinafter for brevity referred to as “the Trial Court”), in Criminal Case No.3800/2016 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as “the N.I. Act”) and was convicted for the said offence by its judgment of conviction and order on sentence dated 10-04-2017.<br></h4><h4>2. The summary of the case of the complainant in the Trial Court was that, the complainant knew the accused and they&nbsp; were close friends since several years. The accused faced acute shortage of funds for domestic needs and for his business purposes. As such, he availed a loan of a sum of `7,75,000/- from the complainant in the month of March-2014 and agreed to repay the same within a period of one year. The said loan was given to the accused by the complainant on various dates through cheques&nbsp;<br></h4><h4>11. The accused has not denied that the cheque at Ex.P-1 is drawn by him and Ex.P-1(a) is his signature. He has also not&nbsp;<br></h4><h4>21. In the instant case, the legal notice issued to the accused by the complainant<br></h4><h4>22. The very object of the notice under Section 138 of the N.I. Act discussed by the Hon’ble Apex Court in the case of Central Bank of India Vs. Saxons Farms and others reported in (1999) 8 Supreme Court Cases 221 which was referred in Suman Sethi’s case (supra) also, is to give a chance to the drawer of the cheque to rectify his omission. Though in the notice, the demand for compensation, interest, cost, etc. is also made, the drawer will be absolved from his liability under Section 138 of the N.I. Act, if he meets the demand of the amount covered by the cheque for which he was aware, within fifteen days from the date of the receipt of the notice or before the complaint is filed.<br></h4><h4>23.Therefore, when the complainant in the instant case, has, apart from bringing to the notice of the accused about the dishonour of the cheque for a particular sum of money has also acknowledged the receipt of a part of the cheque amount subsequent to its dishonour and it is only thereafter proceeded to claim the actual amount that was due, which act of the complainant cannot be called as against the object of the notice as contemplated under Section 138 of the&nbsp; N.I. Act.&nbsp; Therefore, in the present circumstance, the notice cannot be called as imperfect or invalid, merely because it was for a smaller amount than the actual amount mentioned in the dis-honoured cheque.<br><br>25....Since such an unjust enrichment is not permissible under law, nothing wrong could be identified in a legal notice issued demanding lesser amount than the dishonoured cheque amount, that too, after giving the details of the receipt of the part payment subsequent to the dishonour of the cheque, thus, showing the reason for demanding lesser amount than the actual cheque amount.<br></h4><h4>28. Since the quantum of sentence ordered by the Trial Court is also proportionate to the gravity of the proven guilt against the accused, I do not find any reason in interfering in the impugned judgment of conviction and order on sentence, which was confirmed by the learned Sessions Judge\'s Court.<br></h4><h4>Accordingly, I proceed to pass the following:<br>O R D E R<br>The Criminal Revision Petition stands dismissed as devoid of any merit.</h4><p><br></p>', '14aff40457dbe4c49fcdfa1ea02cc84a.jpeg', 'edb3125ac55eee32eb9eda8d4017aa76.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-23', 1, '', '', '2021-06-22 01:24:49', '2023-01-23 08:58:14'),
(836, 'piqKYRVZUYX2d2GFrXYZs9zbr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Doctrine of Estoppel. Resolution of authority assuring grant of land in excess of what person is legally entitled to. Writ Court cannot direct implementation such resolutions. 14 June 2021', '<h4>Bagalkot Town Development Authority and another vs Mallkiarjun C. Charantimath and others. </h4><h4>Writ Appeal 100075 of 2021 decided on 14 June 2021. </h4><h4>Judgement Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/389886/1/WA100075-21-14-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/389886/1/WA100075-21-14-06-2021.pdf</a></h4><h4>This Intra-Court Appeal seeks to lay a challenge to the order dated 17.07.2020 entered by the learned Single Judge of this Court in W.P. No.110414/2019 (LA-UDA) whereby the appellant and the State Government “are directed to consider the representation submitted by the petitioner and implement resolution dated 17.12.2012 in accordance with law”. A period of three months has also been prescribed for the compliance of this direction; the said resolution whose implementation is mandamussed provided for allotment of land to the writ petitioner i.e., the respondent herein.<br>4....writ petitioner contends that his client is admittedly a project displaced person, having lost his land in acquisition; he has received the compensation, is true; however it has nothing to do with his entitlement to allotment of a site for industrial purpose; several such allotments are made to project displaced persons; there are three resolutions consciously passed by the appellant for allotment of land to him; appellant being the author of subject resolutions cannot be heard to say that these resolutions are contrary to law; this appeal lacks bona fide since it is preferred after the issuance of notice in the contempt proceedings; the appellant being a statutory authority has allotted lands to several persons similarly circumstanced &amp; only the petitioner is discriminated against; the impugned order cannot be faultered on the grounds urged in the appeal; so contending he seeks dismissal of the same.&nbsp;<br>5(g) Ordinarily a land loser can found his claim for the grant of a site on the doctrine of promissory estoppel where the Apex Court in a catena of decisions has ruled that the property held by the State &amp; its instrumentalities is always in Public Trust and therefore allotment of the same by sale, lease or otherwise has to be in accordance with the Rules governing the same; even in the absence of Rules the proper mode of disposal is by invoking the public law principles of reasonableness, equality &amp; fairness, vide Saroj Screens Pvt. Ltd.,&nbsp; V.&nbsp; Ghanshyam&nbsp; (2012(11)&nbsp; SCC 434); therefore, the petitioner can seek enforcement of the subject resolutions only to the extent of they being in accordance with the 2004 Rules and the public law principles; in view of this, he is entitled to the grant of a site measuring 1 acre &amp; 33 guntas only, which he was using for the industrial purpose before it was acquired; he has no right to seek allotment of larger extent.<br>5(h) The doctrine of promissory estoppel is founded essentially on equity; the sages of law have said that ordinarily, equity is justice outside law and therefore it cannot be done contrary to law; we need not say that there is no equity against law; merely because the subject resolutions had assured of granting land in excess of what the petitioner is legally entitled to, a Writ Court does not readily direct the implementation of said resolutions, verbatim; at the same time, the resolutions providing for the grant of excessive lands, do not become void in totto; Courts have to individualise justice by moulding the relief and for that purpose, they can read down the instruments, under which rights are claimed consistent with the law under which they are issued, disregarding their broad language &amp; text and gratuitous grant. In the above circumstances, this appeal succeeds in part; the impugned order is modified to the effect that the appellant shall implement the subject Resolutions only to the extent of allotting an industrial site admeasuring 1 Acre &amp; 33 guntas only, and report compliance to the Additional Registrar General of this Court within eight weeks; writ petitioner is liable to pay the price for the site in question at the applicable rates and has to comply with all other legal requirements.</h4>', 'c0770c8bca5ee668b2b6f5cb8abe9fb9.PNG', '27bfdb885200f4825ed882727c0a6e21.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-14', 1, '', '', '2021-06-22 23:15:14', '2021-06-22 23:15:14'),
(837, '6lstfgUodgBAVzDmHaQsFsrxN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Evidence Act and Karnataka Stamp Act. Even a photocopy-xerox copy of the original document can be impounded and deficit stamp duty can be collected by the Court if the same is produced after laying proper foundation. Karnataka High Court. 8 June 2021', '<h4>Kallappa Appa Shandage vs Sanjay Shankar Shandage and another. </h4><h4>Writ Petition 109547 of 2015 decided on 8 June 2021. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/389881/1/WP109547-15-08-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/389881/1/WP109547-15-08-06-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: The petitioner has also specifically pleaded at Para 3 of the plaint&nbsp; that&nbsp; original&nbsp; agreement&nbsp; is lost and accordingly, the complaint is lodged with the jurisdictional police. It is also stated&nbsp; that&nbsp; paper publication regarding loss of the original agreement of sale is also given. By laying foundation to lead secondary evidence the petitioner- plaintiff has produced&nbsp; notarized&nbsp; copy of suit agreement....The objection raised by the respondents- defendants was deficit stamp duty and penalty can be paid&nbsp; only&nbsp; in&nbsp; respect of original documents. The respondents- defendants raised a strong objection&nbsp; that&nbsp; the&nbsp; copy of the document cannot be&nbsp; marked&nbsp; in evidence and therefore, party relying upon&nbsp; the&nbsp; said document cannot be called upon to pay duty.&nbsp;<br></h4><h4>The learned Judge having examined the rival contentions has rejected the&nbsp; application&nbsp; by holding that the copy of&nbsp; the&nbsp; document insufficiently&nbsp; &nbsp; stamped&nbsp; is&nbsp; &nbsp;inadmissible.<span style=\"white-space:pre\">	</span>The learned Judge by relying on the judgment of the Apex Court rendered in State of&nbsp; Bihar&nbsp; .vs.&nbsp; Karam Chand Thapar and Brothers&nbsp; Limited AIR 1962 SC 110&nbsp; has come to the conclusion that the xerox copy of the documents cannot be&nbsp; validated&nbsp; and&nbsp; acted upon and no decree can be passed thereon.<br></h4><h4>Being aggrieved by the said order, the petitioner- plaintiff is before this Court&nbsp; assailing the correctness of the order under challenge.<br></h4><h4>I am of the view that the agreement of sale is a suit document. If this document is taken out of context, then the petitioner would invariably fail and has to suffer the decree of dismissal.&nbsp;<br></h4><h4>The&nbsp; impugned&nbsp; order&nbsp; however&nbsp; needs to be tested by this Court in the light of the amendment to the Karnataka Stamp&nbsp; Act&nbsp; by&nbsp; Act No. 24/ 1999. The explanation is incorporated to Section 3 of the Act, 1957. The said explanation would be relevant and therefore,&nbsp; it&nbsp; would&nbsp; be useful to refer to the same, which reads&nbsp; as&nbsp; follows:<br></h4><h4 style=\"margin-left: 25px;\">\"Explanation-Where no proper duty has been paid on the original of an instrument which is chargeable with an amount indicated in the Schedule as proper duty therefor, then&nbsp; a&nbsp; copy&nbsp; of such instrument whether certified or not and whether a facsimile image or otherwise of the original shall be chargeable with duty of an&nbsp; amount&nbsp; which is indicated in Schedule as proper duty for the original of such instrument, and all the provisions&nbsp; of&nbsp; this&nbsp; chapter and Chapters IV, VI, VII and VIII of this Act shall mutatis mutandis be applicable to such copy of the original.\"<br></h4><h4>7. On a bare reading of the explanation which&nbsp; &nbsp;is&nbsp; &nbsp;incorporated&nbsp; &nbsp;by&nbsp; &nbsp; amendment&nbsp; &nbsp; Act No. 24/ 1999 to the Stamp Act would clearly indicate that even on a copy of the original document, proper duty and penalty can be determined in the event the party tenders xerox copy of the same. The explanation also indicates<br>8. This Court in the case of B.V. Ramachandre Gowda vs Kempamma and another 2015(4) Kar.L.J.282 had an occasion to consider the case in&nbsp; the light of the Explanation incorporated&nbsp; to Section 3 of the Act, 1957. At para( 6) of the judgment, this Court was of the view that even a copy of the&nbsp; original&nbsp; document&nbsp; whether&nbsp; certified or not and whether a&nbsp; fascimile&nbsp; image&nbsp; or&nbsp; otherwise of the original&nbsp; is&nbsp; chargeable with&nbsp; duty of an amount which is indicated in Schedule as proper duty for the original of such&nbsp; instrument.&nbsp;</h4><h4>The impugned order dated 07 .08. 2015 passed by the Senior Civil Judge, Chikodi, on I.A.No. 3 in O. S. No. 103/2014&nbsp; as&nbsp; per&nbsp; Annexure- F is set aside. The application filed in I.A. No. 3 is allowed. The learned Judge is&nbsp; directed&nbsp; to&nbsp; impound the document and determine the deficit stamp duty, if any and&nbsp; penalty,&nbsp; in&nbsp; accordance with law.</h4>', 'e47b7e2b02b79e8f2af2953fa5ce354f.jpg', 'ff64df5604f4c9785e22838376824805.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-08', 1, '', '', '2021-06-23 02:02:25', '2021-06-23 02:02:25'),
(838, 'RuXXIrOvUnceHjnS8v7AXXevf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Order 23 Rule 1(3)(a). Withdrawal suit. Scope explained. The object of the Rule is NOT to provide fresh opportunity to plaintiff who failed to make out a case. Karnataka High Court. 8 June 2021', '<h4>Kariyappa vs Hanumanthappa and others. </h4><h4>Civil Revision Petition 100100 of 2016 decided on 8 June 2021. </h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Judgment Lin</span>k: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/389875/1/CRP100100-16-08-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/389875/1/CRP100100-16-08-06-2021.pdf</a></h4><h4>The captioned civil revision petition is filed by the defendant questioning the order dated 23.09.2016 passed on I.A.No.11 filed under Order 23 Rule 1(3)(a) of CPC in O.S.No.122/2008 as per Annexure-F permitting the respondents/plaintiffs to withdraw the suit with liberty to file a fresh suit.<br></h4><h4>7. The learned Judge by examining the rival contentions of the parties allowed the application by holding that there is formal defect and the said defect can be cured only by filing a fresh suit.<br></h4><h4>14. What is to be borne in mind is that, this litigation was initiated in 2008 and we are in 2021. The petitioner defendant has notified the respondents/plaintiffs in regard to defect in the description of the suit schedule property way back in 2009.  The object of Order 23 Rule 1 of CPC is not to allow the plaintiff with an opportunity of commencement of trial afresh after he has failed to conduct the suit with care and diligence to substantiate his case by evidence. The Court while dealing with an application under Order 23 Rule 1 of CPC has to specifically state the formal defect entailing withdrawal of the suit in its order granting permission to withdraw the suit with liberty to file a subsequent suit.  The learned judge has not examined the conduct and laxness on the part of the respondents/plaintiffs in not seeking appropriate amendment when they were notified by the petitioner/defendant by filing written statement. Respondents/plaintiffs were aware of misdescription since the petitioner/defendant exposed the same in the written statement and therefore, at this juncture, when the  matter is set in for arguments, the respondents/plaintiffs cannot set at naught the entire process that has to follow by taking recourse to the provisions of Order 23 Rule 1(3) of CPC.<br></h4><h4>15. It is trite law that the object of rule is not to enable the plaintiff if he has failed to conduct the suit with proper care and diligence, to obtain an opportunity of commencement of trial afresh in order to avoid previous bad conduct of the case so as to prejudice the opposite party.<br></h4><h4>16. The defect in the suit must be one not affecting the merits of the case and the said error should arise on account of good faith by the plaintiff which can only be effectively set right by a trial de-novo. The  grant  of liberty envisaged in sub-Rule (3) of Rule 1 of Order 23 is at the discretion of the Court. But such discretion is to be exercised by the Court with caution and circumspection. Merely stating that the grant of liberty would not prejudice the defendant is not compliance with statutory mandate. The discretion can be exercised only under two conditions namely, 1) When the application itself should be bonafide and 2) either of the two grounds specified in clause (a) or clause (b) of sub-rule (3) of Rule 1 of Order 23 are fulfilled.<br></h4><h4>17....the learned Judge has mechanically allowed the application without examining the cascading effect in the form of financial and hardship in fighting the litigation that has to be borne by the petitioner/defendant. <br></h4><h4>ORDER<br>The civil revision petition is allowed. The impugned order dated 23.09.2016 passed on I.A.No.11 filed under Order 23 Rule 1(3)(a) of CPC in O.S.No.122/2008 as per Annexure-F is set aside.</h4><div><br></div>', '21e1787b2942dd3a5be8a025b9c37693.jpg', 'a7846b4905fa39897efff95c54918cbe.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-08', 1, '', '', '2021-06-23 02:48:18', '2021-06-23 02:50:10'),
(839, 'aOPCPE5LawzoQQZtnnEtQXtHF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'IPC. Sections 198 and 420. General category candidate securing Scheduled Caster certificate. Allegations prima facie constitute cheating and the accused cannot be discharged. Karnataka High Court. 17 June 2021.  ', '<h4>Kalpana vs The State of Karnataka. </h4><h4>Criminal Petition 201233 of 2019 decided on 17 June 2021. Justice Rajendra Badamikar. </h4><h4> </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/390027/1/CRLP201233-19-17-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/390027/1/CRLP201233-19-17-06-2021.pdf</a></h4><h4>11. Section 420 of IPC is pertaining to cheating and the definition of cheating is given in Section 415 of IPC. The definition includes deception and explanation to Section 415 of IPC disclose that a dishonest concealment of fact is a deception within the meaning of Section 415 of IPC.<br></h4><h4>12. Further, Section 420 of IPC also specifies, that if the cheating which is capable of being converted into a valuable security, it amounts to offence under Section 420 of IPC. Hence, the argument that ingredients of Section 420 of IPC are not attracted, cannot be accepted at this juncture. Prima facie, there is material at this stage to frame charges and proof of charges cannot be considered at the time of framing the charges.<br></h4><h4>13. Apart from that, Section 198 of IPC is also incorporated, which defines as under :-<br>“198. Using as true a  certificate known to be false.—Whoever corruptly uses or attempts to use any such certificate as a true certificate, knowing the same to be false in any material point, shall be punished in the same manner as if he gave false evidence”<br></h4><h4>14. In the instant case, the allegations are that the petitioner having knowledge that she doesn\'t belong to `Mogera\' caste, has obtained a caste certificate of `Mogera\', which is of Scheduled caste and applied for the post under Scheduled caste. Hence, prima facie the intention of the petitioner can be gathered and further though she was selected under General category she would have got the benefit of reservation category throughout her service in the form of increment and promotion.<br></h4><h4>The petition is rejected.<br>However, the learned Magistrate without being influenced by the observations made in this case, shall proceed to decide the entire case on its own merit on available records produced by the prosecution.<br><br></h4><p><br></p>', '1293a980b2ba24ac59c42ced5d86619b.PNG', 'b6d51b0922ba27adfa76cee629dec17d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-17', 1, '', '', '2021-06-24 02:18:33', '2021-06-24 02:20:18'),
(840, 'L6iO0LJmuCqUlLxRRIb7lIfXP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Will. Principles governing proof of Will and mode of proving Will explained. Karnataka High Court. 15 June 2021', '<h4>Ramamani vs Sudha and others. </h4><h4>Regular First Appeal 100167 of 2015 decided on 15 June 2021. </h4><h4>Justice. R. Devdas and Justice J.M. Khazi. </h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/390048/1/RFA100167-15-15-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/390048/1/RFA100167-15-15-06-2021.pdf</a></h4><h4>18. The Constitutional Bench of the Supreme Court of India in the case of Shashi Kumar vs Subodh Kumar reported in AIR 1964 SC 529, while dealing with Section 63 of the Indian Succession Act, held that the principles which govern the proving of a Will and mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator\'s mind, the dispositions made in the Will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator\'s mind was not free. It was held that in such a case, the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence.<br></h4><h4>19. Therefore, normally it may be sufficient for the propounder of a Will to satisfy the requirements of Section 63 of the Indian Succession Act r/w Section 68 of the Evidence Act to discharge the onus in the matter of proving a Will. However, when there are suspicious circumstances, the court is bound to examine each and every suspicious circumstance and unless the court is satisfied with the explanation offered by the propounder of the Will, and the cloud of suspicion is cleared, the courts should not put its seal of approval on the propounded Will. The onus is therefore on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine.<br></h4><h4>20. Having regard to the law laid down by the Hon’ble Supreme Court, when we examine the contentions raised on behalf of the plaintiff and the evidence on record, we find that some of the suspicious circumstances are not satisfactorily answered by the defendants or the propounder of the Will. In the considered opinion of this Court, non- mentioning of the wife by the testator in the Will and not providing for her maintenance is a clear indication that all is not well with the propounded Will. </h4>', '70bb4bd7dfde6ea54dc7cf2f4b12ebe1.PNG', '6af1e4554d1772eff474fd969cefe718.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-15', 1, '', '', '2021-06-24 03:26:16', '2021-06-24 03:28:21');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2746, '5c4aMCnR50kWwCdA8kywY5bM8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Land Reforms Act does not apply to agricultural lands exclusively used for non-agricultural purposes though the land is not converted under the Karnataka Land Revenue Act. Karnataka High Court.', '<p><b>Jamnalal Bajaj Seva Trust vs State of Karnataka and others.&nbsp;</b></p><p><b>Writ Petition 55344 of 2017 decided on 30 June 2021.</b></p><p><b>Justice P.S.Dinesh Kumar.</b></p><p><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\"><b><br></b></span></p><p><b><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">22.<span style=\"white-space: pre;\">	</span>\'Land\' is defined in Section 2(18) of the Land Reforms Act, 1961 as follows:</span><br></b></p><p><b>2.<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">(18) \"land\" means agricultural land, that is to say, land which is used or capable of being used for agricultural purposes or purposes subservient thereto and includes horticultural land, forest land, garden land, pasture land, plantation and tope but does not include house-site or land used exclusively for non-agricultural purposes.\"</span></b></p><p><b>23. Thus, it is clear that house-site or land used exclusively for non-agricultural purposes do not fall within the definition of land under Section 2(18) of the Land Reforms act.</b></p><p><b>25. Thus, the purpose of purchasing the lands by the Trust was to set-up an Ashram.</b></p><p><b>28. In substance, the stand of the Government as argued by the Additional Advocate General is that the Trust has purchased agricultural lands. It has filed&nbsp; the declaration under Section 66 of Land Reforms Act, on its own volition. It is estopped from taking a stand that the&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">lands fall in the \'Urban Agglomeration\' after repeal of the ULC Act.</span></b></p><p><b>29.<span style=\"white-space: pre;\">	</span>It is trite that High Court while exercising power under Article 226 of the Constitution of India shall examine only the decision making process. But as rightly argued by Shri. Holla, despite ample evidence including the Reports by the Tahasildars and the Surveyors, the Land Tribunal has been repeatedly passing orders holding different extent as excess land. This Court has set-aside the earlier two orders and remitted the matter for reconsideration. In the second order, the Land Tribunal was directed to record its findings after taking note of Tahasildar\'s Report as per Annexure-X. But, in the impugned order the Land Tribunal has recorded a regrettable finding that report as per Annexure-X cannot be considered. Reckoned from the date of resolution to purchase the land 63 years have elapsed and from the date of filing the declaration in 1974, nearly half a century (47 years to be precise) has elapsed. Therefore, it would not be expedient to again remit the matter for fresh consideration.</b></p><p><b>&nbsp;31. This Report is prepared by the State Government officials. It does not show any cultivable land.</b></p><p><b>34.<span style=\"white-space: pre;\">	</span>In K. K.Kunhambu Vs.&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Chandramma (Smt.) and others6the (2004)9 SCC 174 subject matter of the land was leased for thepurpose of running a saw-mill. Appellant had filed Form-7 under Section 48A of the Land Reforms Act for grant of occupancy rights. The Land Tribunal granted&nbsp; the occupancy rights in respect of a portion of land. Both the land owner and the tenant challenged the order passed by the Land Tribunal, before this Court.&nbsp; Keeping in view&nbsp; the nature of the lands, the specific object and purpose of the lease, the monthly rental provided, this Court came to the conclusion that the land in question did not satisfy the definition of land contained in Section 2(A)(18) of the Land Reforms Act and the appellant therein could not be held as a tenant. The Supreme Court of India dismissing the&nbsp;</span><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">appeals, has held that the provision for conversion of agricultural land for non-agricultural purposes envisaged under the Land Revenue Act cannot be pressed into aid to deny or deprive the benefit of latter part of the definition of land \'in Section 2(A)(18)\' of the Land Reforms Act, to a land owner on the basis of its exclusive use for non-agricultural purposes.&nbsp;</span></b></p><p><b>42. Learned AAG also relied upon State of Karnataka and Others Vs. Shankara Textiles Mills Ltd (1995)1 SCC 295 and contended that by using a land for non-agricultural purpose, would not convert the agricultural land automatically as, it would render Section 95(2) of the Land Revenue Act negatory.</b></p><p><b>44....The principle of&nbsp; law laid down in Kunhambu\'s case, is fully applicable to the facts of this case because in Kunhambu, the Apex Court was dealing with Section 2(A)(18) of the Land Reforms Act, which is precisely the subject matter in the first writ petition. In Kunhambu, land was used for running a saw-mill and in this case, Trust has set up an Ashram. Thus, the reasons recorded by the Tribunal run counter to the law laid down by the Hon\'ble Supreme Court of India in Kunhambu and ITC Ltd.</b></p><p><b>The endorsement dated 08.01.2016 as per Annexure-C in W.P. No.3848/2021 is quashed. In view of declaration that lands are not agricultural in nature, no further orders are necessary. However, liberty is reserved to the Trust to seek conversion of 3 acres 20 guntas of land in Sy. Nos.37/1P and 40/1 of Herohalli village, Bangalore, if so advised. If an application is filed by the Trust,&nbsp; the Deputy Commissioner shall consider the same expeditiously in an outer limit of three months from the date of receipt of such fresh application</b>.</p>', 'a74254c8c006f0464a2333039873936b.jpeg', 'c76e1b8bff40d074ffc9c52e033ca2a8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-01', 1, '', '', '2023-03-01 12:00:46', '2023-03-01 07:15:51'),
(843, '8apMhJNmdk0GreENvu2gGI6n9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Declaring private temple as Government temple under the Karnataka Hindu Religious Institutions and Endowments Act,1997. Procedural violation renders declaration void. Karnataka High Court.  ', '<h4>The Chief Secretary vs N.V.Yoganandachar and another. </h4><h4>Writ Appeal 127 of 2020 decided on 10 March 2021. </h4><h4>Judgment Link: h<a href=\"ttp://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/375644/1/WA127-20-10-03-2021.pdf\" target=\"_blank\">ttp://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/375644/1/WA127-20-10-03-2021.pdf</a></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 2. The facts of the case reveal that the writ petitioners have filed the writ petition before the learned Single Judge being aggrieved by the notification issued by the State Government dated 5.01.2013 declaring the temple and the land attached to the temple as government property. It was stated in the writ petition that ancestors of the petitioners were the absolute owners of the temple property and Civil Suit was preferred i.e. O.S.No.16/2019 claiming title of the suit property.</h4><h4>5. Learned Single Judge after taking into account the aforesaid statutory provision of law has arrived at a conclusion that the procedure prescribed has not at all been followed. Paragraphs 7 to 14 of the Judgment delivered by the learned Single Judge reads as under:</h4><h4 style=\"margin-left: 25px;\"><i>\"7. Having given anxious consideration to the submission of the learned counsels and on going through the pleadings and material placed on record, what remains to be seems is whether the impugned notification is sustainable in the eye of law.</i></h4><h4 style=\"margin-left: 25px;\"><i>8. Section 42 of the Act 1997 provides that the State Government may, where it is satisfied on the report of the Commissioner under Section 43 or otherwise that any Hindu Religious Institution, whether are not governed by a settled scheme, is being mismanaged, declare such institution to be subject to the regulation of this chapter.  Provided  no such declaration shall be made without following the procedure thereafter specified.</i></h4><h4 style=\"margin-left: 25px;\"><i>9. Section 43(1) contemplates that the Commissioner, by notice published in the prescribed manner, call upon the Manager and all other persons having interest, to show cause why such institution should not be declared to be subject to the provisions of this Act. Section 43(2) contemplates a minimum of one month to be provided from the date of issuance of  the notice, for showing such  cause.  Section 43(6) provides that the Commissioner may authorize any officer subordinate to him to hold an enquiry into the objections, in the manner prescribed, who shall, after giving the manager or any person having interest on opportunity of being heard, submit a report to the Commissioner as to whether or not the institution would be declared to be subject to the provisions of the chapter.</i></h4><h4 style=\"margin-left: 25px;\"><i>10. Section 43(7) contemplates that the Commissioner shall make a report to that effect to the State Government  and the State Government may, by notification, declare such institutions subject to provisions of the chapter.</i></h4><h4 style=\"margin-left: 25px;\"><i>11. A Division Bench of this Court in the case of The Secretary to Government, Revenue  Department V/s. Sri. Prasanna Veeranjaneya Swamy Trust, Bangalore and others reported in 2014(6) KLJ 447, while analyzing the provisions of Section 43(5) and Section 43(6) held that the  notifications issued by the State were contrary to the provisions of Act and the Karnataka Hindu Religious Institutions and Charitable Endowments Rules,  (2002), since no enquiry was conducted by the Commissioner or a person authorized  by the Commissioner.</i></h4><h4 style=\"margin-left: 25px;\"><i>12. In the present case, the petitioners position was already strengthen by a judgment of a competent civil Court where, though the title of the plaintiffs  were rejected, the possession of the plaintiffs with respect to the suit schedule property was confirmed and the defendants were restrained from disturbing the plaintiffs peaceful possession. Moreover, a specific direction was issued that if at all  the defendants wanted to oust the plaintiffs from the suit schedule property, a notification as contemplated under the law has <span style=\"font-size: 1.3125rem;\">to </span><span style=\"font-size: 1.3125rem;\">be </span><span style=\"font-size: 1.3125rem;\">issued </span><span style=\"font-size: 1.3125rem;\">and </span><span style=\"font-size: 1.3125rem;\">Gazetted, </span><span style=\"font-size: 1.3125rem;\">after following due process of law.</span></i></h4><h4 style=\"margin-left: 25px;\"><i>13. In the light of such a direction, it is impossible to accept the contentions of the respondents that the petitioners have vacated the temple and handed over the possession on their own. Moreover, as rightly pointed out by the learned counsel for the petitioners that the respondents have admitted, no notice was issued to the petitioners as contemplated under Section 43 of the Act. No enquiry is held as  required under Section 43 of the Act.</i></h4><h4 style=\"margin-left: 25px;\"><i>14. In view of the above discussion, it is more than obvious that the impugned notification suffers from the vice of not following the procedure  contemplated under Section 43 of the Act. The impugned notification, therefore, cannot be sustained in the eye of law. The impugned  notification with respect to the temple at Sl.No.32, i.e., Sri Anjaneya Swamy temple (Hanumatha Devaru), Megalpete, Nelamangala Town, is therefore quashed and set aside. This writ petition is accordingly allowed.</i></h4><div><br></div><h4><span style=\"font-size: 1.3125rem;\">6. This Court has carefully gone through the Judgment delivered by the learned Single Judge, as well as the statutory provisions as contained under Section 43 of the Act of 1997. At no point of time any show cause notice was issued in the matter nor a report was submitted  thereafter and therefore, it is an established fact that the procedure prescribed under Section 43 of Act of 1997 was not followed and therefore, the learned Single Judge was justified in  setting aside the notification keeping in view the Judgment delivered in the case of  The Secretary to Government, Revenue Department –v- Sri.Prasanna Veeranjaneya Swamy Trust, Bangalore and others [2014(6) KLJ 447]. This Court does not find any reason to interfere with the reasoned Judgment of the learned Single Judge.</span><br></h4><h4>7. Writ Appeal is dismissed.<br><br><br></h4>', 'b7aeb7181f3e02083321fa387643c9b7.PNG', '247e89ccd987fbbd568481aa09462a53.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-03-10', 1, '', '', '2021-06-26 02:12:13', '2021-06-26 02:13:15'),
(844, 'y50Dd4jkOKiJh3Y1vAvwcpymo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Doctrine of ouster. Applicability in case of co-owner and in a suit for partition. Explained. Supreme Court. 26 February 2016', '<h4>Nagabhushanammal v. C. Chandikeswaralingam, (2016) 4 SCC 434 : (2016) 2 SCC (Civ) 642 : 2016 SCC OnLine SC 201. </h4><h4>Civil Appeals 1858-59 of 2016 decided on 26 February 2016</h4><h4>22. This Court in Syed Shah Ghulam Ghouse Mohiuddin v. Syed Shah Ahmed Mohiuddin Kamisul Quadri [Syed Shah Ghulam Ghouse Mohiuddin v. Syed Shah Ahmed Mohiuddin Kamisul Quadri, (1971) 1 SCC 597] held that (SCC p. 605, para 18) possession of one co-owner is presumed to be on behalf of all co-owners unless it is established that the possession of the co-owner is in denial of title of co-owners and the possession is in hostility to co-owners by exclusion of them. It was further held that there has to be open denial of title to the parties who are entitled to it by excluding and ousting them.<br></h4><h4>21. The other main defence in the suit is ouster and limitation. Ouster is a weak defence in a suit for partition of family property and it is strong if the defendant is able to establish consistent and open assertion of denial of title, long and uninterrupted possession and exercise of right of exclusive ownership openly and to the knowledge of the other co-owner.<br></h4><h4>23. A three-Judge Bench of this Court in P. Lakshmi Reddy v. L. Lakshmi Reddy [P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314] , while examining the necessary conditions for applicability of doctrine of ouster to the shares of co-owners, held as follows: (AIR pp. 317-18, para 4)</h4><h4 style=\"margin-left: 25px;\">“4. Now, the ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario. (See Secy. of State for India in Council v. Debendra Lal Khan [Secy. of State for India in Council v. Debendra Lal Khan, 1933 SCC OnLine PC 65 : (1933-34) 61 IA 78] , IA p. 82.) The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. (See Radhamoni Debi v. Collector of Khulna [Radhamoni Debi v. Collector of Khulna, 1900 SCC OnLine PC 4 : (1899-1900) 27 IA 136] , IA p. 140.) But it is well settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir\'s title. (See Corea v. Appuhamy [Corea v. Appuhamy, 1912 AC 230 (PC)] .) It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other.”<br></h4><h4>24. This Court in Vidya Devi v. Prem Prakash [Vidya Devi v. Prem Prakash, (1995) 4 SCC 496] held that: (SCC p. 505, para 28)</h4><h4 style=\"margin-left: 25px;\">“28. ‘Ouster’ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.”</h4>', 'ca547816a49bf94f10c70b4bffae21c4.jpeg', '5687703ec4404a5b32f505a99ebffc58.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2016-02-26', 1, '', '', '2021-06-26 03:57:43', '2021-06-26 04:04:21'),
(852, '9DBvOj2urcGALkCkLBJlXoKCB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Protection of Women from Domestic Violence Act, 2005. Alleged lover of the husband can NOT be made party to the domestic violence proceedings. Karnataka High Court. ', '<h4>Harini H vs Kavya H and others. </h4><h4>Criminal Petition 2148 of 2021 decided on 17 June 2021</h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/390174/1/CRLP2148-21-17-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/390174/1/CRLP2148-21-17-06-2021.pdf</a><br>2. The argument of the petitioner’s counsel is that the petitioner has been unnecessarily made a party by the 1st respondent in her application before the Magistrate under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (‘Act’ for short). He submits that the only allegation found is that the 1st respondent suspected her husband to be having illegal relationship with the petitioner and he thought of bringing her to his house. Therefore he argued that the petitioner herein should not have been made a party in the application filed under Section 12 of the Act as she does not fall within the meaning of respondent as mentioned under Section 2(q) of the Act. So far as the petitioner is concerned it cannot be said that she has committed domestic violence to prosecute her to claim any relief from her. In fact if the reliefs claimed in the application made under Section 12 of the Act are perused, no relief is claimed against the petitioner and therefore the proceedings against her requires to be quashed.<br></h4><h4>5. Section 2(q) of the Act makes it clear that only those persons who have been in the domestic relationship can be made as respondent. In this case as argued by  the  petitioner’s counsel, the allegation against the petitioner is that the 1st respondent’s husband was suspected  to  be having illegal relationship with the petitioner and he thought of bringing the petitioner to his house. Except this allegation there are no other allegations against the petitioner which indicate that she too joined with the husband of the 1st respondent in harassing her. Therefore the petitioner does not come within the scope of respondent as envisaged under Section 2(q) of the Act. Making her respondent in the application filed under Section 12 of the Act is unwarranted. <br></h4><h4>There cannot be any proceedings against her under the provisions of the Act. Therefore it is to be stated that this petition deserves to be allowed. Accordingly petition is allowed. The proceedings against the petitioner in Crl.Misc.45/2021 on the file of JMFC, Arakalagudu are quashed as against the petitioner only.</h4><p><br></p>', '07c6c470941c35ff3216614cfc4cef74.jpg', 'ca6f6b4e0efd87c94dc6d2b38cc155e6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-17', 1, '', '', '2021-06-30 01:38:42', '2021-06-30 01:44:26'),
(853, '5q0jtaDhwM6XVE9C5VhTkMWtf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Protection of Women from Domestic Violence Act, 2005. Alleged lover of the husband can be made party to the domestic violence proceedings if there are specific allegations against her. Karnataka High Court. ', '<h4>Dr.Smitha Ramu vs Dr.Sowmya D. </h4><h4>Criminal Petition 2610 of 2015 decided on 7 August 2018</h4><h4>Justice Budhihal. R.B.<br>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/228329/1/CRLP2610-15-07-08-2018.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/228329/1/CRLP2610-15-07-08-2018.pdf</a><br>This petition is filed by respondent No.4 in Crl. Misc. No.208/2014 praying the Court to quash notice/order dated 31.12.2014 passed by the Chief Metropolitan Magistrate Court, Bengaluru, in the said criminal miscellaneous case.<br></h4><h4>5. Per contra, learned counsel appearing for the respondent-complainant made submission that looking to the complaint averments, there are specific allegations made in the complaint about the illicit relationship between the petitioner herein and the husband of the&nbsp; complainant-respondent herein. There is also an allegation that because of such illicit relationship, the husband of the complainant started giving ill treatment and harassment to the complainant coming to the house in the late night. When there are such allegations, it cannot be said that the complaint is abuse of process of the Court. There is prima facie case as against the petitioner herein. Hence, the learned counsel submitted to dismiss the petition. In support of her contentions, the learned counsel has relied upon the decision of this Court in case of Arun Kumar Agarwal vs Smt. Radha Arun and another ILR 2004 Kar 808<br></h4><h4>6. I have perused the grounds urged in the petition, the averments made in the complaint and the order of the learned Magistrate taking cognizance and ordering for issuance of process.<br></h4><h4>7. Looking to the private complaint, the petitioner herein has been placed as respondent No.4 in the said complaint. Regarding the contents of the complaint, there are&nbsp; specific allegations&nbsp; about the&nbsp; illicit relationship between the petitioner herein and the husband of the complainant i.e., respondent&nbsp; No.1&nbsp; in&nbsp; Crl. Misc. No.208/2014. For the arguments canvassed<br>by the learned counsel for the petitioner that the false allegations are made against the petitioner herein, it requires recording of evidence and it will be done during the course of trial.<br></h4><h4>8. Apart from this, perusal of the material goes to show that there are prima facie allegations&nbsp; made&nbsp; against the petitioner herein and the said allegations are specific in nature. Therefore, the learned counsel for respondent-complainant is justified in making the submission that in this petition, it cannot be&nbsp; proved&nbsp; that whether the allegations made in the complaint are true or false. Therefore, perusing the entire material so also the principles enunciated in the decisions relied upon by both sides, it is not the case wherein the complaint does not disclose prima facie case against the petitioner herein and therefore, it cannot be said that it is abuse of process of court. Therefore, there is no merit in the petition. It is accordingly rejected.<br></h4><p><br></p>', '80b2a7e7f3607b65576ce633518b92e4.PNG', 'c0bb64a66381e3f8648f7196e08ffb43.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2018-08-07', 1, '', '', '2021-06-30 02:42:46', '2021-06-30 03:06:04'),
(854, 'Qhotqa0rz7fSU5Ee9XfuuBsKO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'IPC. Section 364A. Kidnapping for ransom, etc. Each and every ingredient as mentioned in the section needs to be proved for securing conviction. Both kidnap and threat to cause death etc must be proved - Supreme Court.  ', '<h4>Shaik Ahmed vs State of Telangana. </h4><h4>Criminal Appeal 533 of 2021 decided on 28 June 2021. </h4><h4>Justice Ashok Bhushan and Justice R.Subhash Reddy. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/8048/8048_2020_36_1501_28087_Judgement_28-Jun-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/8048/8048_2020_36_1501_28087_Judgement_28-Jun-2021.pdf</a></h4><h4>From the submissions made by the learned counsel\r\nfor the parties and materials on record, following\r\nquestions arise for consideration in this appeal:-<br>\r\n</h4><h4>I. What are the essential ingredients of Section\r\n346A to be proved beyond reasonable doubt by\r\nthe prosecution for securing the conviction\r\nof an accused under Section 364A IPC?<br></h4><h4>II. Whether each and every ingredient as\r\nmentioned under Section 364A needs to be\r\nproved for securing conviction under Section\r\n364A and non-establishment of any of the\r\nconditions may vitiate the conviction under\r\nSection 364A IPC?</h4><h4 style=\"margin-left: 25px;\">364A. Kidnapping for ransom, etc.—Whoever\r\nkidnaps or abducts any person or keeps a\r\nperson in detention after such kidnapping\r\nor abduction and threatens to cause death\r\nor hurt to such person, or by his conduct\r\ngives rise to a reasonable apprehension\r\nthat such person may be put to death or\r\nhurt, or causes hurt or death to such\r\nperson in order to compel the Government\r\nor any foreign State or international\r\ninter-governmental organisation or any\r\nother person to do or abstain from doing\r\nany act or to pay a ransom, shall be\r\n12\r\npunishable with death, or imprisonment for\r\nlife, and shall also be liable to fine.” </h4><h4>13. The first essential condition as incorporated in\r\nSection 364A is “whoever kidnaps or abducts any\r\nperson or keeps a person in detention after such\r\nkidnapping or abduction”. The second condition\r\nbegins with conjunction “and”. The second condition has also two parts, i.e., (a) threatens to cause\r\ndeath or hurt to such person or (b) by his conduct\r\ngives rise to a reasonable apprehension that such\r\nperson may be put to death or hurt. Either part of\r\nabove condition, if fulfilled, shall fulfill the\r\nsecond condition for offence. The third condition\r\nbegins with the word “or”, i.e., or causes hurt or\r\ndeath to such person in order to compel the\r\nGovernment or any foreign State or international\r\ninter-governmental organisation or any other person\r\nto do or abstain from doing any act or to pay a\r\nransom. Third condition begins with the word “or\r\ncauses hurt or death to such person in order to\r\ncompel the Government or any foreign state to do or\r\nabstain from doing any act or to pay a ransom”.\r\nSection 364A contains a heading “kidnapping for\r\nransom, etc.” The kidnapping by a person to demand\r\nransom is fully covered by Section 364A.<br></h4><h4>14. We have noticed that after the first condition\r\nthe second condition is joined by conjunction “and”,\r\nthus, whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or\r\nabduction and threatens to cause death or hurt to\r\nsuch person. <br> </h4><h4>15. The use of conjunction “and” has its purpose and\r\nobject. Section 364A uses the word “or” nine times\r\nand the whole section contains only one conjunction\r\n“and”, which joins the first and second condition.\r\nThus, for covering an offence under Section 364A,\r\napart from fulfillment of first condition, the second\r\ncondition, i.e., “and threatens to cause death or\r\nhurt to such person” also needs to be proved in case\r\nthe case is not covered by subsequent clauses joined\r\nby “or”.  <br></h4><h4>21. Thus, applying the above principle of\r\ninterpretation on condition Nos. 1 & 2 of Section\r\n364A which is added with conjunction “and”, we are of\r\nthe view that condition No.2 has also to be fulfilled\r\nbefore ingredients of Section 364A are found to be\r\nestablished. Section 364A also indicates that in case\r\nthe condition “and threatens to cause death or hurt\r\nto such person” is not proved, there are other\r\nclasses which begins with word “or”, those\r\nconditions, if proved, the offence will be\r\nestablished. The second condition, thus, as noted above is divided in two parts- (a) and threatens to\r\ncause death or hurt to such person or (b) by his\r\nconduct gives rise to a reasonable apprehension that\r\nsuch person may be put to death or hurt <br></h4><h4>34. Thus, after establishing first condition, one\r\nmore condition has to be fulfilled since after first\r\ncondition, word used is “and”. Thus, in addition to\r\nfirst condition either condition (ii) or (iii) has to\r\nbe proved, failing which conviction under Section\r\n364A cannot be sustained. <br><br><br><br><br><br></h4><p><br></p>', 'ce244c900b3fec6e484086a29e729da7.jpeg', '892e19be074f36144a57d4ce5e22beef.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-28', 1, '', '', '2021-06-30 03:53:33', '2021-06-30 03:57:29'),
(845, 'g6fUHd6QPmfvIrKEZmuTUhQEx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Latest and important judgment of the Patna High Court on \'Ancestral Property\', \'Self Acquired Property\' and \'Doctrine of Blending\'. ', '<h3>Krishna Pandey and another vs Ram Nagina Pandey and others.</h3><h3><span style=\"font-size: 1.53125rem;\">Justice </span>Aditya Kumar Trivedi, Patna High Court. </h3><h3>First Appeal No. 219 of 1999<br>Decided on August 7, 2020</h3><h3>Reported in 2020 SCC OnLine Pat 1205 : 2020 AIR CC 2266.</h3><h3><span style=\"background-color: rgb(255, 255, 0);\">Judgment enclosed as PDF document. </span></h3><h3><span style=\"background-color: rgb(255, 255, 0);\">See paragraphs 22 onward. </span></h3><h3>22. Before coming to factual aspect, legal mandates governing the issue are to be seen. Chapter-XII of the “Mulla Hindu Law” deals with status of the coparceners concerning Joint Hindu Family guided by Mitakshra Law and Article 210 speaks about the constitution of Joint Hindu Family having so many eventualities. It speaks about the constitution and for that, recognizes lineal descendants from a common ancestor and includes their wives and unmarried daughters. Article 211 signifies Hindu coparcenary and for that, the only criteria has been laid down as those person who acquires an interest in the joint or coparcenary property by birth. Article 212 speaks about constitution of coparcenary which should be lineal descendant in the main line within four degrees counting from a common male ancestor and, the aforesaid event is purely a creature of law. It dercognizes female to be conparcener (Before 2005 Amendment) though could be a member of joint family. However, Article 213 speaks about exception of Article 212 identifying may be, may not be. The only test is whether remaining under joint family, he is entitiled to demand partition. Article 214 identifies undivided coparcenary interest and essence thereof, is unity of ownership. That means to say, till survival of undivided family no individual could predicate of the joint and undivided property that he has a definite share as, the same appears to be fluctuating one on account of death/birth in the family. Article 218 deals with classification of property bifurcating in two parts (1) joint family property (2) separate property. The joint family property consists of (1) ancestral property, (2) separate property of coparceners thrown into common coparcenary stock. Property jointly acquired by the members of joint family with the aid of ancestral fund would also be joint family property. The main ingredient thereof, is having joint interest/possession of every coparcener, habitable by survivor ship (before amendment) having right of male by birth (before amendment) while separate or self acquired property is acquisition by an individual from his independent source, even remaining coparcener.</h3><h3>23. Article 220 speaks about the same suggesting a Hindu even if he be joint, may possess separate property. Such property exclusively belongs to him. No other member of the coparcenary, not even his male issue acquires any interest in it by birth. It is not liable to partition and, on his death intestate, it passes by succession to his heirs, and not by survivor ship to surviving coparceners. </h3><h3>Continue reading.......</h3><h3><span style=\"background-color: rgb(255, 255, 0);\"></span><br><br></h3>', 'fc816eff71c4f5a7390a6fb644ed55ee.PNG', 'ecb2fb0fd9dd256f23cecb5709b38294.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-08-07', 1, '', '', '2021-06-26 16:20:49', '2021-06-26 16:24:53');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(846, 'MW4tsxx0PcThUt72k2TgYrnUm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Important judgments of the Supreme Court and High Courts on \'Joint Family\', \'Coparcenary Property\' \'Self Acquired Property\' and \'Doctrine of Blending\'. ', '<h4><u>Mallesappa Bandeppa Desai vs Desai Mallappa Alias Mallesappa, AIR 1961 SC 1268 </u><br>11. The question which falls for our decision is : Does this principle apply in regard to a property held by a Hindu female as a limited owner? In our opinion, it is difficult to answer this question in favour of the appellants. The rule of blending postulates that a coparcener who is interested in the coparcenary property and who owns separate property of his own may by deliberate and intentional conduct treat his separate property as forming part of the coparcenary property. If it appears that property which is separately acquired has been deliberately and voluntarily thrown by the owner into the joint stock with the clear intention of abandoning his claim on the said property and with the object of assimilating it to the joint family property, then the said property becomes a part of the joint family estate; in other words, the separate property of a coparcener loses its separate character by reason of the owner\'s conduct and get thrown into the common stock of which it becomes a part. This doctrine, therefore, inevitably postulates that the owner of the separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property. There can be no doubt that the conduct on which a plea of blending is based must clearly and unequivocally show the intention of the owner of the separate property to convert his property into an item of joint family property. A mere intention to benefit the members of the family by allowing them the use of the income coming from the said property may not necessarily be enough to justify an inference of blending; but the basis of the doctrine is the existence of coparcenary and coparcenary property as well as the existence of the separate property of a coparcener. How this doctrine can be applied to the case of a Hindu female who has acquired immovable property from her father as a limited owner it is difficult to understand. Such a Hindu female is not a coparcener and as such has no interest in coparcenary property. <br></h4><h4><u>Bhagwan Dayal v. Mst Reoti Devi, AIR 1962 SC 287 </u><br>The principle of joint tenancy is unknown to Hindu law except in the case of the joint property of an undivided Hindu family governed by the mitakshara law. The legal position may be stated thus : Coparcenary is a creature of Hindu law and cannot be created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily, the manager, or by consent, express or implied, of the members of the family, any other member or members can carry on business or acquire property, subject to the limitations laid down by the said law, for or on behalf of the family. Such business or property would be the business or property of the family. The identity of the members of the family is not completely lost in the family. One or more members of that family can start a business or acquire property without the aid of the joint family property, but such business or acquisition would be his or their acquisition. The business so started or property so acquired can be thrown into the common stock or blended with the joint family property in which case the said property becomes the estate of the joint family. But he or they need not do so, in which case the said property would be his or their self-acquisition, and succession to such property would be governed not by the law of joint family but only by the law of inheritance. In such a case, if a property was jointly acquired by them, it would not be governed by the law of joint family; for Hindu law does not recognize some of the members of a joint family belonging to different branches, or even to a single branch, as a corporate unit. Therefore, the rights inter se between the members who have acquired the said property would be subject to the terms of the agreement whereunder it was acquired. The concept of joint tenancy known to English law with the right of survivorship is unknown to Hindu law except in regard to cases specially recognized by it. In the present case, the uncle and the two nephews did not belong to the same branch. The acquisitions made by them jointly could not be impressed with the incidents of joint family property. They can only be co-sharers or co-tenants, with the result that their properties passed by inheritance and not by survivorship.<br></h4><h4><u>Kalyani (Dead) By LRs. v. Narayanan, 1980 Supp SCC 298 </u><br>24. A further submission that there was partition branchwise is unknown to Mitakshara law and is wholly untenable. In Mayne\'s Hindu Law, 11th Edn., p. 347, law is thus stated: “So long as a family remains an undivided family, two or more members of it, whether they be members of different branches or of one and the same branch of the family, can have no legal existence as a separate independent unit; but all the members of a branch, or of a sub-branch, can form a distinct and separate corporate unit within the larger corporate family and hold property as such. Such property will be joint family property of the members of the branch inter se, but will be separate property of that branch in relation to the larger family.<br>The principle of joint tenancy is unknown to Hindu law except in the case of the joint property of an undivided Hindu family governed by the Mitakshara law.<br></h4><h4><u>Lakkireddi Chinna Venkata Reddi v. Lakkireddi Lakshmama, [1964] 2 SCR 172</u><br>Law relating to blending of separate property with joint family property is well-settled. Property separate on self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation.</h4><h4><u>Mallesappa Bandeppa Desai v. Desai Mallappa, [1961] 3 SCR 779</u></h4><h4>The doctrine of throwing into common stock inevitably postulates that the owner of a separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property. The existence of a coparcenary is absolutely necessary before a coparcener can throw into the common stock his self acquired properties. The separate property of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by him into the common stock with the intention of abandoning his separate claim therein. The separate property of a Hindu ceases to be a separate property and acquires the characteristic of joint family or ancestral property not by any physical mixing with his joint family or ancestral property but by his own volition and intention by his waiving and surrendering his separate rights in it as separate property. The act by which the coparcener throws his separate property to the common stock is a unilateral act. There is no question of either the family rejecting or accepting it. By his individual volition he renounces his individual right in that property and treats it as a property of the family. No longer he declares his intention to treat his self acquired property as that of the joint family property, the property assumes the character of joint family property. The doctrine of throwing into the common stock is a doctrine peculiar to the Mitakshara School of Hindu law. When a coparcener throws his separate property into the common stock, he makes no gift under Chapter VII of the Transfer of Property Act. In such a case thee is no donor or donee. Further no question of acceptance of the property thrown into the common stock arises.</h4><h4><u>D.S. Lakshmaiah v. L. Balasubramanyam, reported in (2003) 10 SCC 310 : AIR 2003 SC 3800</u><br>18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.<br></h4><h4><u>Ram Janam Singh v. Stae of Uttar Pradesh, reported in AIR 1994 SC 1722.</u><br>6. To pronounce on the question of law presented for our decision, we must first examine what is the true scope of the doctrine of throwing into the “common stock” or “common hotchpot”. It must be remembered that a Hindu family is not a creature of a contract. As observed by this Court in Mallesappa Bendeppa Desai v. Desai Mallappa9 that the doctrine of throwing into common stock inevitably postulates that the owner of a separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property. The existence of a coparcenary is absolutely necessary before a coparcener can throw into the common stock his self-acquired properties. The separate property of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by him into the common stock with the intention of abandoning his separate claim therein. The separate property of a Hindu ceases to be a separate property and acquires the characteristic of a joint family or ancestral property not by any physical mixing with his joint family or his ancestral property but by his own volition and intention by his waiving and surrendering his separate rights in it as separate property. The act by which the coparcener throws his separate property to the common stock is a unilateral act. There is no question of either the family rejecting or accepting it. By his individual volition he renounces his individual right in that property and treats it as a property of the family. No longer he declares his intention to treat his self acquired property as that of the joint family property, the property assumes the character of joint family property. The doctrine of throwing to the common stock is a doctrine peculiar to the Mitakshra School of Hindu law. When a coparcener throws is separate property into the common stock, he makes no gift under Chapter VII of the Transfer of Property Act. In such a case there is no donor or donee. Further no question of acceptance of the property thrown into the common stock arises.<br></h4><h4><u>Lakkireddi Chinna Venkata Reddi v. Lakkireddi Lakshmama, reported in AIR 1963 SC 1601.</u><br>9. Law relating to blending of separate property with joint family property is well-settled. Property separate or self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein: but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other member of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation.</h4><h4><u>Mallesappa Bandeppa Desai v. Desai Mallappa AIR 1961 Supreme Court 1268. </u><br>The rule of blending postulates that a coparcener who is interested in the coparcenary property and who owns separate property of his own may, by deliberate and intentional conduct treat his separate property as forming part of the coparcenary property. If it appears that property which is separately acquired has been deliberately and voluntarily thrown by the owner into the joint stock with the clear intention of abandoning his claim on the said property and with the object of assimilating it to the joint family property, then the said property becomes a part of the joint family estate; in other words, the separate property of a coparcener loses its separate character by reason of the owner\'s conduct and get thrown into the common stock of which it becomes a part. This doctrine, therefore, inevitably postulates that the owner of the separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property. There can be no doubt that the conduct on which a plea of blending is based must clearly and unequivocally show the intention of the owner of the separate property to convert his property into an item of joint family property. A mere intention to benefit the members of the family by allowing them the use of the income coming from the said property may not necessarily be enough to justify an inference of blending; but the basis of the doctrine is the existence of coparcenary and coparcenary property as well as the existence of the separate property of a coparcener. ...This doctrine (blending) inevitably postulates that the owner of the separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property. There can be no doubt that the conduct on which a plea of blending is based must clearly and unequivocally show the intention of the owner of the separate property to convert his property into an item of joint family. Property. A mere intention to benefit the members of the family by allowing them the use of the income coming from the said property may not be necessarily be enough to justify an inference of blending; but the basis of the doctrine is the existence of coparcenary and coparcenary property as well as the existence of the separate property of a coparcener.</h4><h4><u>Goli Eswariah v. Commissioner Of Gift Tax, Andhra Pradesh AIR 1970 Supreme Court 1722</u><br>To pronounce on the question of law presented for our decision, we must first examine what is the true scope of the doctrine of throwing into the ‘common stock’ or ‘common hotchpotch’. It must-be remembered that a Hindu family is not a creature of a contract. As observed by this Court in Mallesappa Bandeppa Desai v. Desai Mallappa (AIR 1961 SC 1268) that the doctrine of throwing into common stock inevitably postulates that the owner of a separate property is a coparcener, who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property. The existence of a coparcenary is absolutely necessary before a coparcener can throw into the common stock ‘his self acquired properties. The separate property of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by him into the common stock with the intention’ of abandoning his separate claim therein. The separate property of a Hindu ceases to be a separate property and acquires the characteristic of a joint family or ancestral property not by any physical mixing with his joint family or ‘his ancestral property but by his, own volition and intention by his waiving and surrendering his separate rights in it as separate property.<br></h4><h4><u>Marabasappa (Dead) by L.Rs v. Ningappa (dead) by L.Rs, 2011 (9) SCC 451.</u><br>25. This Court has time and again held that there is no presumption of joint family property, and there must be some strong evidence in favour of the same. In Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade, 2007 (1) SCC 521, after examining the decisions of this Court, it was held: (SCC p. 532, para 17) “17. Therefore, on survey of the aforesaid decisions that emerges is that there is no presumption of a joint Hindu family but on the evidence if it is established that the property was joint Hindu family property and the other properties were acquired out of that nucleus, if the initial burden is discharged by the person who claims joint Hindu family, then the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property by cogent and necessary evidence.<br></h4><h4><u>M.P. Peria Karuppan Chettiar v. Commissioner of Income Tax, Wealth Tax, Gift Tax, Madras</u><br>The question whether a gift of self-acquired or separated property, by a father to his son results in the son holding it as ancestral property was considered by this Court in Arunachala Mudaliar v. C.A. Muruganatha Mudaliar 1954 SCR 243 (AIR 1953 SC 495) and it was laid down that it was perfectly competent for the father, when he makes a gift, to provide expressly either that the donee would take it exclusively for himself or that the gift would be for the benefit of the branch of his family, and if there are express provisions to that effect in the deed of gift or will, the interest which the son would take in such property would depend upon the terms of the grant. Where the document contains no clear words describing the kind of interest which the donee is to take, the question is one of construction and the Court must collect the intention of the donee from the language of the document taken along with the surrounding circumstances. There is no presumption one way or the other.<br></h4><h4><u>G. Narayana Raju (dead) by his legal representative v. G. Channaraju. </u><u style=\"font-size: 1.3125rem;\"> A.I.R. 1968 Supreme Court 1276 </u></h4><h4>It is well established that there is no presumption under Hindu law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family Property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate. The question therefore whether the business was began or carried on with the assistance of joint family property or joint family funds as a family business is a question of fact - (See the decisions of the Judicial Committee in Bhanu Mai v. Jagannath (AIR 1943 P.C. 40) and in Pearey Lal v Nanak Chand (AIR 1948 P C 108) and of this Court in Chattanatha Karayalumn v. Ramachandra Iyer (AIR 1955 S.C. 799).</h4><h4><u>Yendapalli Venkata Raju (Died) v. Yendapalli Yedukondalu Alias Venkateswarlu, AIR 1958 AP 147</u><br>It is not sufficient to show that the family possessed some joint property. What is essential is that the property should be of such a nature and value as to form the nucleus for the acquisitions claimed to be joint. It is only when this is established that the onus is shifted on to the person asserting exclusive title to the property.</h4><h4>This extract is taken from Rohit Chauhan v. Surinder Singh, (2013) 9 SCC 419 : (2013) 4 SCC (Civ) 377 : 2013 SCC OnLine SC 621 at page 424</h4><h4><u>M. Yogendra v. Leelamma N. (2009) 15 SCC 184 : (2009) 5 SCC (Civ) 602] </u></h4><h4><span style=\"font-size: 1.3125rem;\">29. It is now well settled in view of several decisions of this Court that the property in the hands of a sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. It is one thing to say that the property remains a coparcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid.</span></h4><h4 segoe=\"\" ui\",=\"\" roboto,=\"\" \"helvetica=\"\" neue\",=\"\" arial,=\"\" \"noto=\"\" sans\",=\"\" sans-serif,=\"\" \"apple=\"\" color=\"\" emoji\",=\"\" \"segoe=\"\" ui=\"\" symbol\",=\"\" emoji\";=\"\" font-style:=\"\" normal;=\"\" font-variant-ligatures:=\"\" font-variant-caps:=\"\" letter-spacing:=\"\" orphans:=\"\" 2;=\"\" text-align:=\"\" left;=\"\" text-indent:=\"\" 0px;=\"\" text-transform:=\"\" none;=\"\" white-space:=\"\" widows:=\"\" word-spacing:=\"\" -webkit-text-stroke-width:=\"\" text-decoration-thickness:=\"\" initial;=\"\" text-decoration-style:=\"\" text-decoration-color:=\"\" initial;\"=\"\"><u>Sher Singh v. Gamdoor Singh, (1997) 2 SCC 485 </u></h4><h4 segoe=\"\" ui\",=\"\" roboto,=\"\" \"helvetica=\"\" neue\",=\"\" arial,=\"\" \"noto=\"\" sans\",=\"\" sans-serif,=\"\" \"apple=\"\" color=\"\" emoji\",=\"\" \"segoe=\"\" ui=\"\" symbol\",=\"\" emoji\";=\"\" font-style:=\"\" normal;=\"\" font-variant-ligatures:=\"\" font-variant-caps:=\"\" letter-spacing:=\"\" orphans:=\"\" 2;=\"\" text-align:=\"\" left;=\"\" text-indent:=\"\" 0px;=\"\" text-transform:=\"\" none;=\"\" white-space:=\"\" widows:=\"\" word-spacing:=\"\" -webkit-text-stroke-width:=\"\" text-decoration-thickness:=\"\" initial;=\"\" text-decoration-style:=\"\" text-decoration-color:=\"\" initial;\"=\"\">6. It is settled law that even the self-acquired property can be blended into the joint family hotchpotch enveloping the character of coparcenary property. It is also not pleaded in the written statement that it is not joint family property. The very first issue raised by the trial court which was not objected to was whether the property was ancestral property of the parties? The second issue was whether the plaintiff is entitled to joint possession of the suit land and the third issue was whether the previous decree bound the respondent? Under those circumstances, both the parties proceeded on the premise that it was a coparcenary property belonging to the Joint Hindu Family. The finding recorded by all the courts is that the property belonged to Joint Hindu Family. Therefore, the finding that the respondent is entitled to 1/6th share by virtue of his birth is well justified and the finding that the previous decree does not bind him as being tainted with fraud, is not vitiated by any error of law.</h4><h4><u>Adiveppa v. Bhimappa, (2017) 9 SCC 586 : (2017) 4 SCC (Civ) 678 : 2017 SCC OnLine SC 1050 </u><br>19. It is a settled principle of Hindu law that there lies a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property. (See Mulla, Hindu Law, 22nd Edn. Article 23 “Presumption as to coparcenary and self-acquired property”, pp. 346 and 347.)</h4><h4><u>Shyam Narayan Prasad v. Krishna Prasad, (2018) 7 SCC 646 : (2018) 3 SCC (Civ) 702</u><br>12. It is settled that the property inherited by a male Hindu from his father, father\'s father or father\'s father\'s father is an ancestral property. The essential feature of ancestral property, according to Mitakshara law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship. This extract is taken from Arshnoor Singh v. Harpal Kaur, (2020) 14 SCC 436 : 2019 SCC OnLine SC 801 at page 445<br></h4><h4><u>Yudhishter v. Ashok Kumar [Yudhishter v. Ashok Kumar, (1987) 1 SCC 204] </u></h4><h4>10. This question has been considered by this Court in CWT v. Chander Sen [CWT v. Chander Sen, (1986) 3 SCC 567 : 1986 SCC (Tax) 641] where one of us (Sabyasachi Mukharji, J.) observed that under the Hindu law, the moment a son is born, he gets a share in father\'s property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Karta of his own undivided family but takes it in his individual capacity.</h4><h4><u>Arshnoor Singh v. Harpal Kaur, (2020) 14 SCC 436 : 2019 SCC OnLine SC 801</u></h4><h4>7.5. After the Hindu Succession Act, 1956 came into force, this position has undergone a change. Post 1956, if a person inherits a self-acquired property from his paternal ancestors, the said property becomes his self-acquired property, and does not remain coparcenary property.</h4><h4><u>Damodar Krishnaji Nirgude v. Commissioner of Income Tax, Bombay South, (1962) 461 ITR 1252 (Bom.). </u><br>8. Now, in our view, possession of ancestral or joint family property under the Hindu law is not a condition precedent for enabling a coparcener to impress his self-acquired property with the character of a coparcenary property. What constitutes impressing self-acquired property with the character of coparcenary property is the unequivocal act on the part of the coparcener to abandon his individual exclusive right in the property in favour of the coparcenary. It is a well-known principle of Hindu law that a coparcenary can exist even though it may own no coparcenary property. When a coparcenary can exist without possessing or owning coparcenary property, there is no reason why a coparcener could not be in a position to abandon his rights in his self-acquired property in favour of the coparcenary. It is his right under the Hindu Law on the exercise of which the property assumes the character of the coparcenary property. </h4>', '92bd81eb1a9016745b120222b619bcb1.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-26', 1, '', '', '2021-06-26 18:35:20', '2021-06-26 19:15:02'),
(847, 'oY5agZ5dVeyiIXpLKxYP4jApd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Industrial Disputes Act, 1947. Education Institution is \'Industry\' to include drivers etc, However, Teachers are NOT \'Workmen\' under the Act. Supreme Court. ', '<h4>A. Sundarambal v. Govt. of Goa, Daman and Diu<br>Civil Appeal 1776 of 1984 decided on 27 July 1988 <br>Reported in (1988) 4 SCC 42<br></h4><h4>3. Two questions arise for consideration in this case : (1) whether the school, in which the appellant was working, was an industry, and (2) whether the appellant was a “workman” employed in that industry. It is, however, not disputed that if the appellant was not a “workman” no reference under Section 10(1)(c) of the Act could be sought.<br></h4><h4>6. Thus it is seen that even though an educational institution has to be treated as an industry in view of the decision in the Bangalore Water Supply & Sewerage Board v. R. Rajappa [(1978) 2 SCC 213 : 1978 SCC (L&S) 215 : (1978) 3 SCR 207] the question whether teachers in an educational institution can be considered as workmen still remains to be decided.<br>10. The court held that the employee Mukerjee involved in that case was not a workman under Section 2(s) of the Act because he was not mainly employed to do any skilled or unskilled manual or clerical work for hire or reward, which were the only two classes of employees who qualified for being treated as “workman” under the definition of the expression “workman” in the Act, as it stood then. As a result of the above decision, in order to give protection regarding security of employment and other benefits to sales representatives, Parliament passed a separate law entitled the Sales Promotion Employees (Conditions of Service) Act, 1976. It is no doubt true that after the events leading to the above decision took place Section 2(s) of the Act was amended by including persons doing technical work as well as supervisory work. The question for consideration is whether even after the inclusion of the above two classes of employees in the definition of the expression “workman” in the Act a teacher in a school can be called a workman. We are of the view that the teachers employed by educational institutions whether the said institutions are imparting primary, secondary, graduate or post-graduate education cannot be called as “workmen” within the meaning of Section 2(s) of the Act. Imparting of education which is the main function of teachers cannot be considered as skilled or unskilled manual work or supervisory work or technical work or clerical work. Imparting of education is in the nature of a mission or a noble vocation. A teacher educates children, he moulds their character, builds up their personality and makes them fit to become responsible citizens. Children grow under the care of teachers The clerical work, if any they may do, is only incidental to their principal work of teaching. We agree with the reasons given by the High Court for taking the view that teachers cannot be treated as “workmen” as defined under the Act. It is not possible to accept the suggestion that having regard to the object of the Act, all employees in an industry except those falling under the four exceptions (i) to (iv) in Section 2(s) of the Act should be treated as workmen. The acceptance of this argument will render the words ‘to do any skilled or unskilled manual, supervisory, technical or clerical work’ meaningless. A liberal construction as suggested would have been possible only in the absence of these words. The decision in May and Baker (India) Ltd. v. Workmen [AIR 1967 SC 678 : (1961) 2 Lab LJ 94, 97 : (1961-62) 20 FJR 147] precludes us from taking such a view. We, therefore, hold that the High Court was right in holding that the appellant was not a “workman” though the school was an industry in view of the definition of “workman” as it now stands.</h4><p><br></p>', '939faeb320606fe6701e09ac1ffb9a9e.jpeg', '647f9402ff3ae22552ef47fdbb908819.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '1988-07-27', 1, '', '', '2021-06-28 01:54:04', '2021-06-28 01:58:52'),
(848, '9EsKzZHlgcm34bolHajX8oDeL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Caste Certificate. Candidate appointed to a reserved post on the basis of false and invalid caste certificate. Such appointment is vitiated by fraud and would be void ab initio. Supreme Court.', '<h4>Oriental Insurance Co. Ltd. v. Pradip. </h4><h4>Civil Appeal 742 of 2020 decided on 27 January 2020. </h4><h4>Reported in&nbsp;(2020) 11 SCC 144,&nbsp;</h4><h4>Justice Dr Dhananjaya Y Chandrachud and Justice K M Joseph. </h4><h4>Judgement Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2017/20432/20432_2017_7_40_20082_Judgement_27-Jan-2020.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2017/20432/20432_2017_7_40_20082_Judgement_27-Jan-2020.pdf</a></h4><h4>6. In its judgment in FCI [Food Corpn. of India v. Jagdish Balaram Bahira, (2017) 8 SCC 670 : (2017) 2 SCC (L&amp;S) 708] , this Court has held: (SCC pp. 718-19, para 48).</h4><h4 style=\"margin-left: 25px;\">“48. … Where a candidate had been appointed to a reserved post on the basis of the claim that he or she was a member of the group for which the reservation is intended, the invalidation of the claim to belong to that group would, as a necessary consequence, render the appointment void ab initio. The rationale for this is that a candidate who would otherwise have to compete for a post in the general pool of unreserved seats had secured appointment in a more restricted competition confined to the reserved category and usurped a benefit meant for a designated caste, tribe or class. Once it was found that the candidate had obtained admission upon a false representation to belong to the reserved category, the appointment would be vitiated by fraud and would be void ab initio. The falsity of the claim lies in a representation that the candidate belongs to a category of persons for whom the reservation is intended whereas in fact the candidate does not so belong. The reason for depriving the candidate of the benefit which she or he has obtained on the strength of such a claim, is that a person cannot retain the fruits of a false claim on the basis of which a scarce public resource is obtained. … A candidate who does so causes detriment to a genuine candidate who actually belongs to the reserved category who is deprived of the seat. For that matter, a detriment is caused to the entire class of persons for whom reservations are intended, the members of which are excluded as a result of an admission granted to an imposter who does not belong to the class. The withdrawal of benefits, either in terms of the revocation of employment or the termination of an admission was hence a necessary corollary of the invalidation of the claim on the basis of which the appointment or admission was obtained. The withdrawal of the benefit was not based on mens rea or the intent underlying the assertion of a false claim. In the case of a criminal prosecution, intent would be necessary. On the other hand, the withdrawal of civil benefits flowed as a logical result of the invalidation of a claim to belong to a group or category for whom the reservation is intended.”</h4><h4>7. We may note at this stage that in para 59 of the judgment in FCI case [Food Corpn. of India v. Jagdish Balaram Bahira, (2017) 8 SCC 670 : (2017) 2 SCC (L&amp;S) 708] , this Court has observed thus: (FCI case [Food Corpn. of India v. Jagdish Balaram Bahira, (2017) 8 SCC 670 : (2017) 2 SCC (L&amp;S) 708] , SCC pp. 725-26)<br></h4><h4 style=\"margin-left: 25px;\">“59. The Full Bench judgment of the Bombay High Court in Arun [Arun v. State of Maharashtra, 2014 SCC OnLine Bom 4595 : (2015) 1 Mah LJ 457] has essentially construed the judgments in Kavita Solunke [Kavita Solunke v. State of Maharashtra, (2012) 8 SCC 430 : (2012) 2 SCC (L&amp;S) 609] and in Shalini [Shalini v. New English High School Assn., (2013) 16 SCC 526 : (2014) 3 SCC (L&amp;S) 265] as having impliedly overruled the earlier Full Bench judgments in Ganesh Rambhau Khalale [Ganesh Rambhau Khalale v. State of Maharashtra, 2009 SCC OnLine Bom 20 : (2009) 2 Mah LJ 788] and Ramesh Suresh Kamble [Ramesh Suresh Kamble v. State of Maharashtra, 2006 SCC OnLine Bom 1078 : (2007) 1 Mah LJ 423] . In view of the conclusion which we have arrived at in regard to the earlier decisions rendered by the two-Judge Benches in Kavita Solunke [Kavita Solunke v. State of Maharashtra, (2012) 8 SCC 430 : (2012) 2 SCC (L&amp;S) 609] and Shalini [Shalini v. New English High School Assn., (2013) 16 SCC 526 : (2014) 3 SCC (L&amp;S) 265] , we are unable to subscribe to the view expressed by the Full Bench in Arun [Arun v. State of Maharashtra, 2014 SCC OnLine Bom 4595 : (2015) 1 Mah LJ 457] . The judgment of the Full Bench of the Bombay High Court in Arun [Arun v. State of Maharashtra, 2014 SCC OnLine Bom 4595 : (2015) 1 Mah LJ 457] holds that: (SCC OnLine Bom para 75)<br>‘(i) mere invalidation of the caste claim by the Scrutiny Committee would not entail the consequences of withdrawal of benefits or discharge from the employment or cancellation of appointments that have become final prior to the decision inMilind [State of Maharashtra v. Milind, (2001) 1 SCC 4 : 2001 SCC (L&amp;S) 117] on 28-11-2000;<br>&nbsp;(iv) the benefit of protection in service upon invalidation of the caste claim is available not only to the persons belonging to “Koshti” and “Halba Koshti”, but is also available to the persons belonging to the Special Backward Class category on the same terms.…’<br>The High Court [Meenakshi Dagadu Adhtrao v. State of Maharashtra, 2014 SCC OnLine Bom 4757] has even gone to the extent of holding that the decision in Milind [State of Maharashtra v. Milind, (2001) 1 SCC 4 : 2001 SCC (L&amp;S) 117] was in the nature of prospective overruling of the law which was laid down by the Bombay High Court. The above view of the Bombay High Court is clearly unsustainable. Neither the judgment in Milind [State of Maharashtra v. Milind, (2001) 1 SCC 4 : 2001 SCC (L&amp;S) 117] nor any of the judgments of this Court which have construed it have held that Milind [State of Maharashtra v. Milind, (2001) 1 SCC 4 : 2001 SCC (L&amp;S) 117] was an exercise in prospective overruling. The High Court was in error in holding so. The decision of the Full Bench in Arun [Arun v. State of Maharashtra, 2014 SCC OnLine Bom 4595 : (2015) 1 Mah LJ 457] is unsustainable. The Full Bench had evidently failed to notice that cases where the protection was granted by this Court following the invalidation of a caste claim was in exercise of the power conferred by Article 142 of the Constitution, depending upon the facts and circumstances of each case. The jurisdiction under Article 142 is clearly not available to the High Court in the exercise of its jurisdiction under Article 226. The High Court erred in arrogating that jurisdiction to itself.”</h4><h4 style=\"\">8. Hence, the basis of the judgment of the High Court is unsustainable as a result of the law which has been laid down in the judgment in FCI [Food Corpn. of India v. Jagdish Balaram Bahira, (2017) 8 SCC 670 : (2017) 2 SCC (L&amp;S) 708] . The decision of the Bombay High Court in Arun [Arun v. State of Maharashtra, 2014 SCC OnLine Bom 4595 : (2015) 1 Mah LJ 457] has been disapproved.</h4><p><br></p>', '2c9d9e139cd3e785fd876b6bce4ec58a.jpeg', 'f3c9e659bb6772362b0fbdcf6dd2aced.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-01-27', 1, '', '', '2021-06-28 20:06:28', '2021-06-28 20:40:21'),
(849, '22lhd7ht82o8SKKipDWQshnzh', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Workmen\'s Compensation Act, 1923. High Court can NOT consider appeal under Section 30(1) of the Act as if it is a Court of first appeal. Simply because another view is possible, findings of the Commissioner cannot be disturbed. Karnataka High Court.  ', '<h4>The Divisional Manager National Insurance Co. Ltd. vs Basavaraj and another.</h4><h4>Miscellaneous First Appeal 22162 of 2011 (Workmen Compensation), decided on 23 June 2021</h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/390616/1/MFA22164-11-23-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/390616/1/MFA22164-11-23-06-2021.pdf</a><br></h4><h4>These appeals are at the instance of the insurer  calling in question the legality of the award <br>3. In the claim proceedings before the learned Commissioner, respondent No.1 – Munirathanam appeared and filed a written statement admitting  employer- employee relationship between him and the claimants herein and their wages as well as the factum that the accident resulting in injuries took place during the course  of and arising out of the employment.<br></h4><h4>10. There is no dispute about the legal position that  in exercise of the power under Section 30(1 ) of the Workmen’ s Compensation Act, 1923, this Court should not examine the records as if it is a Court of first appeal. Similarly, merely because another view can be  taken on the same evidence, interference with the finding of the learned Commissioner is not called for if  the  view taken on the evidence by the Commissioner is  reasonable and  it is not a finding based on no evidence. Hon’ ble Supreme Court has made the said position of law amply clear in a decision reported in (2017) 1 SCC  45  –  Golla  Rajanna  and  others vs. Divisional   Manager  and another. After extracting Section 30 of the Employees Compensation Act, the Hon’ble Supreme Court has observed as follows:</h4><h4 style=\"margin-left: 25px;\">“9. The Workmen’ s Compensation Commissioner, having regard to the evidence, had returned a finding on the nature of injury and the percentage of disability. It is purely a question of fact. There is no case for the insurance company that the finding is based on no evidence at all or that it is perverse. Under Section 4(1 )(c)( ii) of the Act, the percentage of permanent disability needs to be assessed only by a qualified medical practitioner.  There is no case for the respondents that the doctor who issued the disability certificate is not a qualified medical practitioner, as defined under the Act. Thus, the Workmen’s Compensation Commissioner has passed the order based on the certificate of disability issued  by  the  doctor and which has been duly proved before the Workmen’s Compensation Commissioner.<br>10.Under the scheme of the Act, the Workmen’s Compensation Commissioner is the last authority on  facts. Parliament  has thought it fit to restrict the  scope  of  the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to reappreciate the evidence and  recorded  its own findings on percentage of disability for which also there is no basis.  The  whole exercise made by the High Court is not within the competence of the High  Court  under Section 30 of the Act.”</h4>', '183497fbbc020347afe189318892510a.jpg', '7c9057a687c110b08488e01da65f34fb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-23', 1, '', '', '2021-06-29 23:29:35', '2021-06-29 23:30:14'),
(850, 'dQczG60TkHzbDEv7GncigF0Mt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. A Government employee can NOT be transferred before he completes the minimum period of retention as per the biding Government Order. Karnataka High Court reiterates ', '<h4>Vasantkumar vs The Government of Karnataka and others. </h4><h4>Writ Petition 101581 of 2021 decided on 21 June 2021</h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/390617/1/WP101580-21-21-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/390617/1/WP101580-21-21-06-2021.pdf</a><br>Petitioner, who has put in a long &amp; spotless public service and who is shortly going to retire by superannuation on 30.04.2022, is knocking at the doors of Writ Court for assailing the order dated 10.03.2021 (Annexure-C) whereby the Karnataka State Administrative Tribunal (hereinafter ‘Tribunal’) has negatived his challenge to the transfer order dated 08.01.2021 (Annexure-A3) in Application No.10044/2021; petitioner has also laid a challenge to the subsequent order dated 21.01.2021 (Annexure-A7) in companion Application No.10120/2021 whereby the private respondent Mr. Mohammed Zubair, the Registrar of a University has been granted additional charge of the post to which petitioner was transferred.<br></h4><h4>4(f) The vehement contention of learned advocates appearing for the respondents that transfer is not a condition of service and therefore, displacement of employees does not give rise to a cause of action is, ordinarily true; however, a Full Bench of this Court in S.N.Gangadharaiah Vs. State of Karnataka&nbsp; ILR&nbsp; 2015&nbsp; KAR 1955 has held that no government employee can be transferred before he completes the minimum period of retention as prescribed in Government Order dated 07.06.2013; this is held to have statutory force and therefore, it’s infraction is justiciable; the Bench went a step further in observing “… posting of a government servant from one headquarters to another or from one office to another within the same headquarters for taking up duties of a new post, also amounts to transfer”; therefore, the short distance between the twin cities of Hubli-Dharwad or between the two offices in the same cities pales into insignificance when the binding Guidelines of Transfer promulgated by 2013 Order are violated; whether transfer is made within a very short period and therefore, will not amount to prejudice, is also equally untenable; it is more so, when the petitioner has got a short stint of service i.e. ten months since his retirement date is 30.04.2022.<br></h4><h4>(g)The rulings heavily relied upon by the learned Government Advocate i.e, Deepak Niranjan case (2020)3 SCC 404, &amp; Rajendra Singh (2009)15 SCC 178 that leave a greater leverage with the Government in matters of transfer of its employees do not much come to his rescue since the service rules applicable to the parties in those cases were different from those obtaining in the State of Karnataka; it hardly needs to be stated that the conditions of service of government employees are governed by the Service Rules promulgated by the respective States and therefore, the rulings that are structured on a different legal regime as is the case herein, cannot be much banked upon in support of the propositions that are pressed into service by the respondents.<br></h4><h4>In the above circumstances, these writ petitions succeed; a Writ of Certiorari issues quashing the Tribunal’s order dated 10.03.2021 made in Application Nos.10044/2021 &amp; 10120/2021; a Writ of Certiorari also issues quashing the transfer notifications dated 08.01.2021 and 21.01.2021, coupled with a direction to continue the petitioner&nbsp;</h4>', '4011f5bc7dc905147bab8a54c43e99b3.png', '8922a2b5c6fc6844265f9a41fa2c55bb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-21', 1, '', '', '2021-06-30 00:43:39', '2021-06-30 00:43:39');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(851, 'UnGJ3FlFGrdyoYtX1QPfquR3O', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'Perjury has become a way of life in the Law Courts.\' - Karnataka High Court while dismissing appeal arising out of a false claim under the Motor Vehicles Act with exemplary costs. ', '<h4>Veerabhadraiah Swamy vs N. Virupakshi@Virupakshappa N and others. <br>Miscellaneous First Appeal 101901 of 2017 decided on 23 June 2021.</h4><h4>Justice Krishna S Dixit and Justice Pradeep Singh Yerur</h4><h4>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/390610/1/MFA101901-17-23-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/390610/1/MFA101901-17-23-06-2021.pdf</a></h4><h4><span style=\"font-size: 1.3125rem;\">This appeal by the claimant calls in question the Judgment & Award dated 03.03.2017 entered by the MACT-II, Ballari, whereby his claim in MVC No.64/2015 having been marginally favoured a compensation of Rs.20,000/- has been awarded with interest at the rate of 7% per annum; the appeal is founded on the ground of inadequacy of compensation.</span></h4><h4>3(b) Admittedly, claimant had the medical history of coronary problem when the accident happened; because of the alleged injuries caused by the accident, he was treated at the Government College & Hospital i.e., VIMS-Ballari, as an out-patient; the Wound Certificate, dated 30.08.2014, issued by the General Duty Medical Officer at Ex.P.5 specifically states that the “injuries are simple  in  nature”; this opinion was formed by the said Medical Officer after examination & on the basis of radiological  tests,  as  is  stated in the very Certificate itself; there being no reason to doubt the same, the said opinion has to be treated as the expert opinion under Section 45 of the Evidence Act, 1872 and therefore, carries a lot of weight, nothing emerging  from the record for discounting it’s probative value.<br></h4><h4>(c) Later, the claimant moved to Narayana Institute of Cardiac Sciences at Bengaluru wherein he had admittedly  undergone coronary related operation & treatment in a long hospitalization; in his affidavit-evidence, at para 2, 3 & 4,  he has stated that the said accident resulted in “severe injuries over chest, head, forehead, nose, face, abdomen, hands & legs” and that all this happened only because of  the accident which has “decreased his life span due to heart injury”; all this is false, to say the least; neither in his claim petition nor in his affidavit evidence, he has mentioned anything about his pre-existing heart ailment; as already mentioned above, he had not suffered any injury to the chest, much less heart nor to any vital organ<br></h4><h4>(e) The claimant has also suppressed the reimbursement of huge expenses incurred by him for the heart treatment under “Yashashvini Co-operative Health Care for Farmers” a welfare Scheme of the Government, both in his claim petition & affidavit evidence; in his cross-examination, he has not denied the receipt of money <br></h4><h4>b) About a century ago, the Privy Council had angrily lamented that, in our system, perjury was being committed day in & day out with impunity; the Apex Court in Swaran Singh Vs. State of Punjab (2000)5 SCC  668 had  expressed it’s anguish  as under:<br>“Perjury has also become a way of life in the Law Courts. A trial Judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. … “<br>In  Mahila  Vinod  Kumari  Vs.  State  of  Madhya   Pradesh  (2008)8 SCC 34, it was observed, “… The evil of perjury has assumed alarming proportions in cases depending on oral evidence and in order to deal with the  menace effectively, it is desirable for the Courts to use the provision more effectively and frequently, than it is presently done…”.<br></h4><h4>This case reminds us what Shakespeare wrote in Richard III as under:<br></h4><h4 style=\"margin-left: 25px;\">“My conscience hath a thousand several tongues,</h4><h4 style=\"margin-left: 25px;\">And every tongue brings in a several tale,</h4><h4 style=\"margin-left: 25px;\">And every tale condemns me for a villain.</h4><h4 style=\"margin-left: 25px;\">Perjury, perjury in the highest degree;</h4><h4 style=\"margin-left: 25px;\">Murther, stern murther, in the direst degree;</h4><h4 style=\"margin-left: 25px;\">All several sins, all us’d in each degree.</h4><h4 style=\"margin-left: 25px;\">Throng to the bar, crying all “Guilty, guilty!”</h4><h4>We are pained to see cases of the kind coming in considerable numbers nowadays; something has to be done to eradicate the evil of perjury, fraud & fabrication; a mere non-suiting of the unscrupulous litigants by throwing their case papers out through the court window would be militantly insufficient; something more drastic needs to be devised, so that message reaches out loudly to the unscrupulous class; in this case, we are made to spend more than an hour of valuable time in turning every page of the original Trial Court Record that runs into 656 pages, keeping other older cases at a bay; it is a sheer waste of huge public time & money occasioned by this perjured case of the appellant; this is not a happy thing to  happen;  we are of the considered view that this appeal should be dismissed with exemplary & penal cost of Rs.1,00,000/-.</h4>', '6849c48e4f28f76a910aae83cc7e17f6.png', '279a5078713ee6414d10cde315c0772d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-23', 1, '', '', '2021-06-30 01:07:53', '2021-06-30 01:10:39'),
(855, 'Ht4RAPIA7DDpcedZTkWrikJs7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constitution of India. Article 21. Right to life gives right to every human being to live a life of dignity with access to at-least bare necessities of life. Supreme Court. ', '<h4>State of Kerala and others vs Leesamma Joseph. </h4><h4>Civil Appeal 59 of 2021 decided on 29 June 2021. </h4><h4>Justice Ashok Bhushan and Justice M.R.Shah. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/25422/25422_2020_38_1501_28090_Judgement_28-Jun-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/25422/25422_2020_38_1501_28090_Judgement_28-Jun-2021.pdf</a></h4><h4><span style=\"font-size: 1.3125rem;\">17. The Right to Life as guaranteed by Article 21 of\r\nthe Constitution gives right to every human being to\r\nlive a life of dignity with access to at-least bare\r\nnecessities of life. To provide food security to\r\nimpoverished persons is the bounden duty of all States\r\nand Governments. The Parliament with object to provide\r\nfood and nutritional security in human life cycle had\r\nenacted the National Food Security Act, 2013.</span><br></h4><h4>80. In view of the foregoing discussions and our\r\nconclusions, we dispose of the writ petitions with the\r\nfollowing directions:-\r\n</h4><h4>(i) It is directed that the Central Government to\r\ndevelop the Portal in consultation with\r\nNational Informatics Centre (NIC) for\r\nregistration of the unorganized\r\nlabourers/migrant workers. We also impress upon and direct that the Central Government as well\r\nas the respective States and the Union\r\nTerritories to complete the process of Portal\r\nfor registration under National Data Base for\r\nUnorganised Workers (NDUW Project) as well as\r\nimplement the same, which by all means may\r\ncommence not later than 31.07.2021. We also\r\nimpress upon and direct that the process of\r\nregistration of the unorganized\r\nlabourers/migrant workers is completed at the\r\nearliest, but not later than 31.12.2021. All\r\nthe concerned States/Union Territories and the\r\nLicence Holders/Contractors and others to\r\ncooperate with the Central Government to\r\ncomplete the process of registration of migrant\r\nworkers and unorganized labourers so that the\r\nbenefits of the welfare schemes declared by the\r\nCentral Government/State Governments/ Union\r\nTerritories be available to migrant workers and\r\nunorganized labourers for whose benefits the\r\nwelfare schemes are declared. </h4><h4>(ii) The Central Government having undertaken to\r\ndistribute additional quantity of foodgrains as\r\ndemanded by the States/Union Territories for\r\ndistribution to migrant labourers under some\r\nScheme framed by the States, we direct the\r\nCentral Government, Department of Food and\r\nPublic Distribution (Ministry of Consumer\r\nAffairs, Food and Public Distribution) to\r\nallocate and distribute foodgrains as per\r\ndemand of additional food-grains from the\r\nStates for disbursement of dry foodgrains to\r\nmigrant labourers.\r\n</h4><h4>(iii) We direct the States to bring in place an\r\nappropriate scheme for distribution of dry\r\nration to migrant labourers for which it shall\r\nbe open for States to ask for allocation of\r\nadditional foodgrains from the Central\r\nGovernment, which, as directed above, shall\r\nprovide the additional foodgrains to the State.\r\nThe State shall consider and bring an\r\n78\r\nappropriate Scheme, which may be implemented on\r\nor before 31.07.2021. Such scheme may be\r\ncontinued and operated till the current\r\npandemic (Covid-19) continues.\r\n</h4><h4>(iv) The States, who have not yet implemented “One\r\nNation One Ration Card” scheme are directed to\r\nimplement the same by not later than\r\n31.07.2021.\r\n</h4><h4>(v) The Central Government may undertake exercise\r\nunder Section 9 of the National Food Security\r\nAct, 2013 to re-determine the total number of\r\npersons to be covered under the Rural and Urban\r\nareas of the State.\r\n</h4><h4>(vi) We direct all the States/Union Territories to\r\nregister all establishments and license all\r\ncontractors under the Act, 1979 and ensure that\r\nstatutory duty imposed on the contractors to\r\ngive particulars of migrant workers is fully\r\ncomplied with.\r\n</h4><h4>(vii) The State/Union Territories are directed to run\r\ncommunity kitchens at prominent places where\r\n79\r\nlarge number of migrant labourers are found for\r\nfeeding those migrant labourers who does not\r\nhave sufficient means to procure two meals a\r\nday. The running of the community kitchen\r\nshould be continued at-least till pandemic\r\n(Covid-19) continues.&nbsp;</h4>', '3c85a3164c3311b49c73c8508abfa4c0.jpeg', 'f0b5553e2f59f3727c3958d252177f8c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-28', 1, '', '', '2021-06-30 04:17:44', '2021-06-30 04:17:44'),
(856, 'WlTvT9m6mRDuyKAAZjH3zJLIu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constitution of India. Article 254.  A repugnant law made by State legislature can be revived by enacting a subsequent amendment substantively changing the basis of the voidness and applying it retrospectively. Supreme Court reiterates.', '<h4>G.Mohan Rao and others vs State of Tamil Nadu and others. </h4><h4>Writ Petition 1411 of 2020 decided on 29 June 2021. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/26088/26088_2020_34_1501_28103_Judgement_29-Jun-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/26088/26088_2020_34_1501_28103_Judgement_29-Jun-2021.pdf</a></h4><h4>29. The line  of  decisions  discussed  above  reveals  a  settled position  as regards   the   competency   of   legislature   to enact a retrospective validating Act, inter alia, delineated as under: </h4><h4>(i) The legislature must be having power over the subject matter as also competence to make a validating law.</h4><h4>(ii) There must be a clear validating clause coupled with substantive change in the earlier position</h4><h4>(iii) The retrospective operation must  be  specified clearly.</h4><h4>(iv) There can be no express or declaratory overruling of the judgment of the Court.</h4><h4>(v) It is permissible for the legislature to make a decision of the Court ineffective by removing the material basis of the  decision  in  the manner that the Court would not have arrived at the same   conclusion   had   the   corrected/modified position prevailed at the time of rendering the said earlier decision </h4><h4>31...when voidness is a result of repugnancy between the State law and law made by the Parliament, that is, voidness under Article 254 of the Constitution, revival of such State law by enacting a subsequent amendment substantively changing the basis of the voidness and applying it retrospectively from a prior date is recognised time and again by this Court, as discussed above.</h4><h4>34. We may briefly examine the concept of repugnancy and its functioning   under   Article   254.   The   concept   of   repugnancy   is meant to prevent the operation of two conflicting laws on the same field so as to result into uncertainty and inconsistency. Naturally, when a situation like that emerges, the subjects of law cannot be expected to approach a Court immediately and seek a resolution as to which of the two laws would operate on them. Thus, the Constitution provides for univocal and unambiguous solution in the form of Article 254 which makes it clear that in such circumstances, the law made by the Parliament ought to prevail and the subjects would be governed by it. However, it does not stop here. It goes beyond this basic declaration and gives an opportunity to the legislature to which the repugnant law   belonged   (State   legislature)   to   revive   it   by   obtaining   the Presidential assent, thereby providing impetus to the competency of the State legislature to meet with the fallouts of repugnancy.  It is crucial to note that Article 254 does not contemplate that the State law and law made by the Parliament must be the same in toto. For, to say that would render the whole objective of revival through Presidential assent as pointless exercise as it will serve no purpose for any State to enact a law exactly the same as the law made by the Parliament. In fact, any such dittoed and clichéd law made by the State legislature would be redundant.  It (State) would rather follow the law made by the Parliament.</h4><h4><span style=\"font-size: 1.3125rem;\">35. Indubitably, Article 254 contemplates co­existence of Union </span>and State laws, even if repugnant, but only after the repugnancy is assented to by the President. Differently put, Article 254 is a manifestation of decentralized law­making and recognition of the competency of the State legislature to modulate dispensation as may be expedient to that State, upon seeking Presidential assent for such deviation.</h4><h4><br></h4><h4><br></h4><h4><br></h4><h4><br></h4><h4><br></h4><h4><br></h4><h4><br></h4><h4><br></h4>', 'a55508187599c8fdea81b75814854dd8.jpeg', '4c24ae7e66b5861649f1bab793f198da.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-29', 1, '', '', '2021-06-30 21:22:04', '2021-06-30 21:43:25'),
(857, 'qC6pHTgqCadwDVWYImft5RGnz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Limitation Act, 1963 applies to arbitration proceedings under Section 18(3) of Micro, Small and Medium Enterprises Development Act, 2006. Supreme Court. ', '<h4>M/s. Silpi Industries etc vs Kerala State Road Transport Corporation &amp; Anr. etc.&nbsp;</h4><h4>Civil Appeal 1570 &amp; 1578 of 2021, decided on 29 June 2021<br>Justice Ashok Bhushan and Justice R. Subhash Reddy<br><span style=\"background-color: rgb(255, 255, 0);\">Link to Judgment</span>: <a href=\"https://main.sci.gov.in/supremecourt/2017/36008/36008_2017_35_1501_28105_Judgement_29-Jun-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2017/36008/36008_2017_35_1501_28105_Judgement_29-Jun-2021.pdf</a><br>13. Having regard to contentions of the parties, only two issues arise for consideration before this Court, namely :<br>(i) Whether the provisions of Indian Limitation Act, 1963 is applicable to arbitration proceedings initiated under Section 18(3) of Micro, Small and Medium Enterprises Development Act, 2006 ?; and<br>(ii) Whether, counter claim is maintainable in such arbitration proceedings ?<br>18. ...Limitation Act, 1963 is applicable to the arbitration proceedings under Section 18(3) of the 2006 Act.&nbsp;</h4><p><br></p><h4><i>to be updated....</i></h4>', 'c86c209b62489f5c887efe888449a0bb.jpeg', 'a3b4cd0aca545a596808160f576028bb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-29', 1, '', '', '2021-06-30 22:02:00', '2021-06-30 22:02:00'),
(858, 'BtBeViAMhDbmuv4CT5I7DPIZb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Counter claim is maintainable in arbitration proceedings initiated under Section 18(3) of Micro, Small and Medium Enterprises Development Act, 2006. Supreme Court. ', '<h4>M/s. Silpi Industries etc vs Kerala State Road Transport Corporation &amp; Anr. etc.&nbsp;</h4><h4>Civil Appeal 1570 &amp; 1578 of 2021, decided on 29 June 2021<br>Justice Ashok Bhushan and Justice R. Subhash Reddy<br><span style=\"background-color: rgb(255, 255, 0);\">Link to Judgment</span>:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2017/36008/36008_2017_35_1501_28105_Judgement_29-Jun-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2017/36008/36008_2017_35_1501_28105_Judgement_29-Jun-2021.pdf</a><br></h4><h4>13. Having regard to contentions of the parties, only two issues arise for consideration before this Court, namely :<br>(i) Whether the provisions of Indian Limitation Act, 1963 is applicable to arbitration proceedings initiated under Section 18(3) of Micro, Small and Medium Enterprises Development Act, 2006 ?; and<br>(ii) Whether, counter claim is maintainable in such arbitration proceedings ?<br></h4><h4>18. ...Limitation Act, 1963 is applicable to the arbitration proceedings under Section 18(3) of the 2006 Act.&nbsp;</h4><h4>19. The other issue is with regard to maintainability of counter claim in the arbitration proceedings initiated as per Section 18(3) of the 2006 Act. It is true that recovery amount under Section 17 of the said Act is only with reference to the amounts claimed by the supplier under Section 16 of the said Act. But coming to Section 18 of the said Act, the words used are, any party to a dispute‘ for making a reference to Micro and Small Enterprises Facilitation Council under Section 18 of the Act.&nbsp;<br></h4><h4>24. For the aforesaid reasons and on a harmonious construction of Section 18(3) of the 2006 Act and Section 7(1) and Section 23(2A) of the 1996 Act, we are of the view that counter-claim is maintainable before the statutory authorities under MSMED Act.</h4><h4><i>to be updated....</i></h4>', '26147c0b5cfe042bef9f85e298bab71b.jpeg', '7f7cf00e55b9f031f21fe505e9e02a18.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-29', 1, '', '', '2021-06-30 22:10:56', '2021-06-30 22:10:56'),
(859, 'dCTn9Fyx0CZoJgL3WKacUHk23', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Order 23 Rule 3A. Separate suit challenging compromise decree is NOT maintainable even on the ground that the decree is void or voidable under the Indian Contract Act. Supreme Court. ', '<h4>R. Janakiammal vs S.K. Kumaraswmy. </h4><h4>Civil Appeal 1537 of 2016 decided on 30 June 2021. </h4><h4>Justice Ashok Bhushan and Justice R.Subhash Reddy. </h4><h4>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2012/12251/12251_2012_36_1501_28108_Judgement_30-Jun-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2012/12251/12251_2012_36_1501_28108_Judgement_30-Jun-2021.pdf</a><br><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 36. One of the additional issues, which were framed by the trial court, was “Whether the suit is not maintainable in view of Order 23 Rule 3(A) of the Code of Civil Procedure?”</h4><h4>40. By the ..amendment Act No.104 of 1976, a new Rule, i.e., Rule 3A was added providing “3A. Bar to suit.­ No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.”<br></h4><h4>44. A conjoint reading of Sections 10, 13 and 14 indicates that when consent is obtained by coercion, undue influence, fraud, misrepresentation or mistake, such consent is not free consent and the contract becomes voidable at the option of the party whose consent was caused due to coercion, fraud or misrepresentation. An agreement, which is void or voidable under the Indian Contract Act, shall not be deemed to be lawful as is provided by Explanation to Rule 3 of Order XXIII. <br></h4><h4>49. Thus, an agreement or compromise which is clearly void or voidable shall not be deemed to be lawful and the bar under Rule 3A shall be attracted if compromise on the basis of which decree was passed was void or voidable. <br></h4><h4>55. The above judgments contain a clear ratio that a party to a consent decree based on a compromise to challenge the compromise decree on  the ground that the decree was not lawful, i.e., it was void or voidable has to approach the same court, which recorded the compromise and a separate  suit challenging the consent decree has been held to be not maintainable.  </h4>', '11826363187ef586bc44c16d6a61fce4.jpeg', 'fd91796ab09634b87a82558da71261f6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-30', 1, '', '', '2021-06-30 22:51:08', '2021-06-30 22:53:59'),
(860, 'ZwyQInAJ1OWnUb5AG3Ql9hpcg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Nomination to University Syndicate. Nominated eminent personalities in the field cannot be removed like dirt. Doctrine of pleasure will NOT apply when there is a security of tenure. Karnataka High Court.    ', '<h4>Dr. Deepti Bhava and another vs The State of Karnataka and others. </h4><h4>Writ Petition 13414 of 2020 and connected matters decided on 11 June 2021. </h4><h4>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/390813/1/WP13414-20-11-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/390813/1/WP13414-20-11-06-2021.pdf</a></h4><h4>4. There is no dispute with regard to the facts pertaining to the appointment and removal of the petitioners from the Syndicate and Senate bodies of Health Science University. The Syndicate members came to be appointed to the body syndicate of the University by order dated 16.10.2018 and were removed from the membership of the syndicate by Notification dated 23.10.2020.<br></h4><h4>30. That apart, the only question that arises for determination is whether the membership of either of the bodies is for a fixed tenure or it can be at the sweet will and pleasure of the appointing authority be it the Pro-Chancellor under Section 21(1)(x) or the State Government under Section 24(1)(12) of the Act?<br></h4><h4>31. A reading of Section 31 would be suffice to resolve the controversy involved in the petitions. Section 31(1) is reproduced once again for the sake of convenience.<br>As rightly pointed out by the learned counsel for the University it could be read in two parts.&nbsp; The first part has&nbsp; &nbsp;to be read as under:-<br></h4><h4>“Save as otherwise provided in this Act the Senate, Syndicate and Academic Council shall&nbsp; be reconstituted at or about same time every three years, and members of the authorities shall (except in the case of ex-officio members) hold office as members thereof up to&nbsp; the&nbsp; date of next reconstitution;”<br></h4><h4>The provision can be read as below after eschewing that portion that relates to the “ex-officio members”,<br></h4><h4>“Save as otherwise provided in this Act the Senate, Syndicate and Academic Council shall be reconstituted at or about same time every three years ….. and Members of the&nbsp; authorities shall hold the office as members thereof up-to the date of next reconstitution.“<br></h4><h4>From a reading of the above, if the principles of purposive construction are to be adopted, the reading would render a meaning in the following manner:-<br></h4><h4>32. The first part apparently governs the period stipulated under the Statute mandating the reconstitution of the bodies mentioned therein. The bodies shall be mandatorily reconstituted once in every three years and normally the reconstitution shall be of all the authorities at&nbsp; or about the same time. The second part clearly envisages the term of the members of the body sought to be reconstituted, that is, a member once appointed under Section&nbsp; 21 or&nbsp; Section 24&nbsp; shall mandatorily be continued till<br>the reconstitution of the said body. The Legislature has deemed it fit to frame the provision pertaining to the terms of office of its members also. Section 31, in the opinion of&nbsp; the Court is to be read as one which mandates&nbsp; the&nbsp; term, not only for re-constitution of the bodies but also the&nbsp; term&nbsp; of the members appointed. As read above it is the only way the in which the provision could be read. The natural consequence would be that the members are assured of a tenure till the date of reconstitution,&nbsp; irrespective&nbsp; of&nbsp; the date they assume office and the maximum period for which the&nbsp; body&nbsp; can&nbsp; remain&nbsp; without&nbsp; being&nbsp; reconstituted&nbsp; is three<br>years, then necessarily the maximum tenure that a member may enjoy is three years or lesser, that is until the re- constitution and not at the mercy of the appointing&nbsp; authority. The date of appointment of the member is irrelevant in the context of Section 31. The language employed in Section 31 makes it abundantly clear that the term is up-to the date of next re-constitution.&nbsp;<br></h4><h4>33. The language used by the legislature leaves no quarter for any doubt or ambiguity. A member once appointed shall be and is entitled to hold office&nbsp; until&nbsp; the next reconstitution and the reconstitution cannot be beyond&nbsp; a period of three years. If this is the&nbsp; interpretation&nbsp; on a plain reading of the provision, then it cannot be gainfully argued that there is no fixed tenure or that it is not a tenure post or that it is a post without tenure.&nbsp;<br></h4><h4>39. In the light of the reading and interpretation of Section 31 placed by this Court as hereinabove, this Court is of the considered opinion that the arguments and submissions canvassed with regard to the appointments of the petitioners being subject to pleasure doctrine is wholly unfounded and misconceived. Even assuming that the pleasure doctrine is applicable for arguments sake, the law&nbsp; is no more res integra, where there is security of tenure&nbsp; then the removal cannot be at the sweet&nbsp; will and&nbsp; pleasure of the Government or the authorities but only for reasons recorded.<br></h4><h4>40. It would not be out of place to revisit the observations of the Division Bench of this Court in the case of B.K.Uday Kumar vs State of Karnataka and others reported in 2020 (1) AKR 781, that in the light of the law laid down by the Hon\'ble Apex Court in the case of Dhyaneshwar Digambar Kamble vs State of Maharastra, the withdrawal of pleasure cannot be at&nbsp; the sweet will, whim and fancy of the authority, but can only be for valid reasons. Moreover, the power of withdrawal of pleasure can be used reasonably and only for public good. Neither is there a public good, nor it is demonstrated that the administration has faltered&nbsp; on account of these persons. If the appointment is for&nbsp; a&nbsp; definite tenure, that is till the reconstitution the members could not have been removed by the competent authority or by the State&nbsp; Government without&nbsp; recording valid&nbsp; reasons. It is not pointed out by the respondents, either by the University or the State Government as to how the administration suffered on account of the appointment of these petitioners. In the absence of any valid&nbsp; and&nbsp; reasonable ground, the removal on the ground of exercise&nbsp; &nbsp;of pleasure Doctrine is rendered arbitrary. That apart, it is apparent that the removal came about and after the change in the Ruling dispensation and hence a political bias also cannot be ruled out. In that view of the matter, the same amounts to colourable exercise of power and stands vitiated on that ground also.<br></h4><h4>41.Accordingly the writ petitions are allowed.</h4><div><br></div>', '861f94f5952535d520441378d1b6958e.jpg', 'e49b639b4b690ece876386f7311587cf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-11', 1, '', '', '2021-07-01 02:46:16', '2021-07-01 02:46:16'),
(861, '80TuUvdM6kereLL9jwIII96kP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Preventive detention. Consideration of representation even after confirmation of preventive detention order is part of Article 21 of the Constitution. Karnataka High Court. ', '<h4>Rizwan Pasha @ Kulla Rizwan vs Commissioner of Police, Bengaluru. </h4><h4>Writ Petition Habeas Corpus 29 of 2021 decided on 15 June 2021. </h4><h4>Justice B.V. Nagarathna and Justice Hanchate Sanjeevkumar. </h4><h4>Judgment Link: <a href=\"https://karnatakajudiciary.kar.nic.in/judgements/WPHC_29_2021_final.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/WPHC_29_2021_final.pdf</a></h4><h4>30. Thus, based on the reasons that could be made\r\nout by the detenu by way of a representation, the\r\nconsideration of the same at the earliest possible time is so\r\nessential and a core right of the detenu or otherwise, it\r\nwould be an infraction of the right to liberty under Article\r\n21 of the Constitution. We may illustrate the same by an\r\nexample. If a detenu is afflicted by a serious cardiac\r\ndisease and makes a representation seeking modification\r\nor revocation of his order of detention, on a consideration\r\nof which it could result in either revocation or modification&nbsp;of the order of detention by the State Government. But if\r\nthe same is not considered in time, it may inevitably result\r\nin the death of the detenu while in detention on account of\r\nlack of effective medical assistance. Also, if for instance,\r\nthe order of detention has been mistakenly made against a\r\ndetenu and he makes a representation to bring to the\r\nnotice of the State Government the said fact and it is not\r\nat all considered for months together, that would be a\r\nserious infraction of his right to liberty envisaged under\r\nArticle 21 of the Constitution. Thus, the reason for making\r\na representation could be manifold which one cannot\r\nenvisage at present. What is of seminal importance is\r\nconsideration of the representation at the earliest point of\r\ntime, which would brook no delay. Moreover, such a\r\nrepresentation could be made for the first time after the\r\ndetention order albeit subsequent to the passing of the\r\norder of confirmation of the same.<br> </h4><h4>31...any particular\r\nprinciple of natural justice would be applicable to a\r\nparticular situation, or the question whether there has\r\nbeen any infraction of the application of that principle, has\r\nto be judged, in the facts and circumstances of each case. &nbsp;<br></h4><h4>32. In the context of processual rights of a detenu\r\nunder preventive detention, although the Hon’ble Supreme\r\nCourt has emphasized that the compliance of the principles\r\nof natural justice before the Advisory Board, nevertheless,\r\nthe said observations may be extended even to a period\r\nsubsequent to the consideration of the matter by the\r\nAdvisory Board. In this context, what is important is to\r\nrealize that non-consideration of a representation made by\r\nthe detenu to the State Government under Section 14 of\r\nthe Act would amount to failure of the principles of natural\r\njustice and therefore, an illegality....We think that in the face of\r\nnon-consideration of a representation by the detaining\r\nauthority at the earliest point of time is a violation of the\r\nprinciples of natural justice in its expanded form.<br></h4><h4>33...In other words,\r\nconsideration of a representation made by a detenu, post-confirmation of the order of preventive detention is to be\r\nread into the principles of natural justice and also Article\r\n21 of the Constitution. Non-consideration of such a\r\nrepresentation would also be arbitrary and oppressive and\r\ntherefore, an infraction of Articles 14 as well as 21 of the\r\nConstitution.<br> </h4><h4>34. Further, Article 22(5) confers on the detenu,\r\nthe right to make a representation against the order of\r\ndetention prior to its confirmation. This right implies a\r\ncorresponding duty or obligation on the part of the State\r\nGovernment to consider the representation of the detenu\r\nat the earliest opportunity. The substance of the said right\r\ncould be applied even to a case of consideration of a\r\ndetenu’s representation post-confirmation of the detention.<br> </h4><h4>35. It is trite that the law of preventive detention\r\nmust not only comply with Article 22 of the Constitution,\r\nbut also fulfill the mandate of Articles 21 and 14.<br> </h4><h4>38...Just as the right of a detenu to make a\r\nrepresentation at the earliest opportunity prior to the order\r\nof confirmation is passed is envisaged, it would also extend\r\nto a right to make a representation even after a\r\nconfirmation order is passed confirming the preventive\r\ndetention on the basis of the report of the Advisory Board.\r\nWhen such a representation is made post-confirmation of\r\nthe detention, the same has to be considered promptly,\r\nwithout any delay and as expeditiously as possible. It\r\nwould depend upon the facts of each case as to whether\r\nthere has been a delay in considering the representation\r\nso as to infer that there has been infraction of Articles 14\r\nand 21 of the Constitution.<br> </h4><h4>49. At the same time, while considering and\r\ninterpreting the preventive detention laws, there must be a\r\nconcern for upholding and safeguarding the fundamental\r\nright and liberty of the detenu without losing sight of the\r\nfact that the preventive detention has been recognised even under the Constitution. Even though the same is\r\nbased on the subjective satisfaction of the detaining\r\nauthority, nevertheless, it is not immune from judicial\r\nreview. Even after the confirmation order is made by the\r\nState, the obligation to act under Section 14 of the Act\r\ncannot be ignored. Hence, the following\r\nguidelines/directions:<br> </h4><h4>i) That whenever an order of detention is followed by\r\nan order of confirmation of detention made by the\r\nState under Section 12 read with Section 13 of the\r\nAct, liberty is reserved to the detenu to make a\r\nrepresentation; &nbsp;<br></h4><h4>(ii) In such a case, the representation would have to be\r\nconsidered by the State under Section 14 of the Act\r\nin the context of revocation or modification of the\r\norder of detention;<br>\r\n</h4><h4>(iii) Such a representation, when made to the Jail\r\nSuperintendent/Jail Authority by the detenu, must be\r\ntransmitted to the concerned officer/authority who is\r\nvested with the responsibility/obligation to consider\r\nsuch a representation at an earliest possible time.\r\nThe use of technology in this regard has to be&nbsp;underscored. Such a representation can be scanned\r\nor sent in any other instantaneous mode by the Jail\r\nAuthority to the concerned officer or authority;<br>\r\n</h4><h4>(iv) If a case-worker is entrusted with the file of a\r\nparticular detenu, it is the duty of the case-worker to\r\nput up the representation immediately on receipt of\r\nthe same before the concerned officer or authority\r\nfor consideration of the same;<br>\r\n</h4><h4>(v) For the said purpose, the State has to devise a\r\nsystem or channel under which such representations\r\ncould reach the concerned officer or authority in an\r\nexpeditious manner.<br>\r\n</h4><h4>(vi) On such representation being placed before the\r\nconcerned authority or officer, the same has to be\r\nconsidered as expeditiously as possible and in the\r\nearliest point of time. What is the said time cannot\r\nbe defined in specific terms. The same would\r\ndepend upon the nature of the representation made\r\nby the detenu.<br> </h4><h4>(vii) It is needless to observe that precious time cannot\r\nbe lost in the transmission of the representation to\r\nthe concerned department and thereafter, in placing\r\nthe same by the case worker before the concerned\r\nofficer or authority. Hence, the State may issue\r\nfurther guidelines/directions in that regard to all the\r\njail authorities/jail superintendents wherein persons\r\nare detained under the respective laws provided for\r\npreventive detention so that the representations\r\nmade post confirmation of such detention are\r\nconsidered in time under Section 14 of the Act.<br>\r\n</h4><h4>(viii) On consideration of the representation of the detenu,\r\nthe order made thereon must be communicated to\r\nthe detenu through the concerned jail authorities so\r\nthat if the order is for release of the detenu, he is\r\nreleased forthwith or if it is modification of the\r\ndetention order, in which event, it could be an earlier\r\nrelease and the same would also have to be\r\nintimated to the detenu. Similarly, if the\r\nrepresentation is rejected, it must also be\r\ncommunicated to the detenu forthwith so as to&nbsp;enable the detenu to take recourse in accordance\r\nwith law.<br>\r\n</h4><h4>(ix) On such communication being sent, the jail\r\nauthority, which receives the same, must inform the\r\nauthority which has made the order, about the\r\nreceipt of communication and about the intimation of\r\nthe said communication to the detenu.<br>\r\n</h4><h4>(x) The State Government to issue guidelines to the\r\nrespective jail authorities and other\r\nofficers/authorities in the Department of Home\r\nAffairs with regard to the aforesaid directions. </h4><p> </p>', 'ccdb6c1e52638549becd7ad91b102544.PNG', 'f12b16aaa37cd1152c438cec853263f0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-15', 1, '', '', '2021-07-01 23:02:50', '2021-07-01 23:02:50');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(862, 'iz9WHdVTLMbpd67upVBJy5ENr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Adoptions and Maintenance Act, 1956.  \'Effect of Adoption\'. Important Judgments of High Courts and the Supreme Court. ', '<h4><u>(1) Saheb Reddy v. Sharanappa, (2017) 1 SCC 142 : (2017) 1 SCC (Civ) 338.&nbsp;</u></h4><h4>Adoption after vesting of undivided shares of other heirs in the said other heirs, held, has no effect on such vested undivided shares.&nbsp;</h4><h4><u>(2) Kisan Baburao Memane v. Suresh Sadu Memane, (1996) 1 Mah LJ 100.&nbsp;</u></h4><h4>Effect of Adoption.—Section 12 of the Act provides that the adoption of the adoptive son to the father or mother gets effect only from the date of adoption and not retrospectively. As per Section 12(c) of the Act, if any estate or property is divested to any other person before the adoption then the adopted son is not entitled to get back to the said property.</h4><h4><u>(3) Jadabendra Narayan Choudhury v. Shitanshu Kumar Choudhury, (2013) 2 CHN 325 (Cal).&nbsp;</u></h4><h4>Section 12 clearly affirms that any property that might have been vested in the adoptee before the adoption, continues to remain vested in the adoptee subject to any obligations, if any, attaching to the ownership of such property, including the obligation of the adoptee to maintain relatives in the family of his or her birth. The section recognises the right of a coparcener in a coparcenary property by birth. It is immaterial whether vesting took place prior to coming into force of the Hindu Adoptions and Maintenance Act, 1956, and irrespective of the fact whether he has been adopted prior to the coming into force of the said 1956 Act.</h4><h4><u>(4) Sarat Chandra Das v. Revenue Officer, (1994) 1 Cal LT 395 : (1994) 1 Cal LJ 212.</u></h4><h4>According to Section 12 of the Act an adopted child severs all his/her connections with the natural family as soon as a valid adoption is made, and, he/she must be treated as a Class I heir of a deceased male Hindu and, therefore, must be treated at par with the natural heir and legal representative of a deceased who had adopted him.</h4><h4><u>(5) Chandan Bilasini v. Aftabuddin Khan, (1996) 7 SCC 13.&nbsp;</u></h4><h4>When a widow adopts a child, the child not merely acquires an adoptive mother but also acquires other relationships in the adoptive family, unless there is anything to the contrary in the Hindu Adoptions and Maintenance Act.&nbsp;</h4><h4><u>(6) Basavarajappa v. Gurubasamma, (2005) 12 SCC 290.&nbsp;</u></h4><h4>On adoption, the adoptee gets transplanted in the family in which he is adopted with the same rights as that of a natural-born son. The legal effect of giving a child in adoption is to transfer the child from the family of his birth to the family of his adoption. He severs all his ties with the family from which he is taken in adoption. Correspondingly, these ties are automatically replaced by those created by adoption in the adopted family. The adopted child becomes a coparcener in the joint Hindu family property.</h4><h4><u>(7) Sitabai v. Ramchandra, (1969) 2 SCC 544.&nbsp;</u></h4><h4>The true effect and interpretation of Sections 11 and 12 of the Act is that when either of the spouses adopts a child, all the ties of the child in the family of his or her birth become completely severed and these are all replaced by those created by the adoption in the adoptive family. In other words the result of adoption by either spouse is that the adoptive child becomes the child of both the spouses.</h4><h4><u>(8) Dinaji v. Daddi, (1990) 1 SCC 1.&nbsp;</u></h4><h4>Proviso (c) of Section 12 departs from the Hindu general law and makes it clear that the adopted child shall not divest any person of any estate which has vested in him or her before the adoption. Merely by adopting a child, a widow is not deprived of any of her rights in the property. The adopted child could get the rights for which he is entitled after her death.&nbsp;</h4><h4><u>(9) Mudi Gowda Gowdappa Sankh v. Ram Chandra Ravagowda Sankh, (1969) 1 SCC 386.&nbsp;</u></h4><h4>The rights of the adopted son relate back to the date of the adoptive father\'s death and the adopted son must be deemed by a fiction of law to have been in existence as the son of the adoptive father at the time of the latter\'s death. If, therefore, there was a coparcenary in existence when the adoptive father died, then whether it came to an end by the death of the last surviving coparcener or by subsequent partition among the remaining members, an adoption validly made by the widow of the deceased coparcener would have the effect of divesting the estate in the hands of the heir to the last surviving coparcener in the first case and of putting an end to the partition in the second case and enabling the adopted son to claim a share in the family properties as if they were still joint.</h4><h4><u>(10) Govind Hanumantha Rao Desai v. Nagappa, (1972) 1 SCC 515.&nbsp;</u></h4><h4>An adopted son is deemed to have been adopted on the date of the death of his adoptive father. He is the continuation of his adoptive father\'s line exactly as an aurasa son and an adoption, so far as the continuity of the line is concerned, has a retrospective effect. Whenever the adoption may be made there is no hiatus in the continuity of the line.</h4><h4><u>(11) Ugre Gowda v. Nagegowda, (2004) 12 SCC 48.&nbsp;</u></h4><h4>An adoption of a son does not deprive the adoptive mother of the power to dispose of her separate property by transfer or by Will. Adoption does not divest the adoptive mother of the suit property which vested in her by succession on the death of her husband. Mere adoption does not deprive her of her right to dispose of her own disposable property.</h4><h4><u>(12) Ratakonda Kanthamma v. District Registrar, Chittoor, (2007) 4 ALD 13 : (2007) 58 AIC 289.&nbsp;</u></h4><h4>From a perusal of Section 12(b) of the Act, it is evident that if any property had vested in the child before adoption, the adoption would not have any effect upon it. A coparcener gets his right to a share in the joint family property, by virtue of his birth.</h4><h4><u>(13) Rajendra Kumar v. Kalyan, (2000) 8 SCC 99.&nbsp;</u></h4><h4>If the child taken in adoption is born after the death of the husband of the widow, the adopted son cannot claim that by virtue of legal fiction that he takes the interest of the deceased father from the year of his death. He can claim succession to the adoptive mother but not as coparcener on the basis of legal fiction.</h4><h4><u>(14) Hirabai v. Babu Manika Ingale, 1980 Mah LJ 494 : AIR 1980 Bom 315.&nbsp;</u></h4><h4>The exception carved out by clause (c) of the proviso to Section 12 of the Adoption Act is meant only to protect the others of rights vested in them prior to the adoption and is not intended to deprive the adopted child of the rights with regard to the property belonging to the joint family, wherein such child would have got interest by birth, the date of his birth only being fixed fictionally to the date of the adoption.</h4><h4><u>(15) Govind Hanumantha Rao Desai v. Nagappa, (1972) 1 SCC 515.&nbsp;</u></h4><h4>The fiction that an adoption relates back to the date of the death of the adoptive-father applies only when the claim of the adoptive son relates to the estate of the adoptive father. But where the succession to the property of a person other than the adoptive father is involved, the principle applicable is not the rule of relation back but the rule that inheritance once vested cannot be divested. The rights of an adopted son cannot be more than that of his adoptive father.</h4><h4><u>(16)Shripad Gajanan Suthankar v. D.K. Suthankar, (1974) 2 SCC 156.&nbsp;</u></h4><h4>Once joint family properties are partitioned validly, the share of a member of a Mitakshara Hindu family in which his own issue have no right by birth can be transferred by his will and such transfers be then by will, gift or sale, bind the adopted son who comes later on the scene. If a property has validly gone out of the hotch-potch the adopted son cannot recall it. Partition cannot be drowned by the subsequent adoption because when it was entered into there was no legal impediment in doing it. The clock cannot be put back beyond a certain stage.</h4><h4><u>(17) M. Ct. Muthiah v. Controller of Estate Duty, 1986 Supp SCC 375.&nbsp;</u></h4><h4>An exception to the rule that adoption severs a son from his natural family exists in the case of what is called a dwyamushyayana or son of two fathers. The only form of dwyamushyayana adoption that is not obsolete is the nitya or absolute dwyamushyayana in which a son is taken in adoption under an agreement that he should be the son of both the natural and adoptive fathers. It appears to be obsolete in Madras on the East Coast. But in the West Coast among the Nambudri Brahamana, it is the ordinary form. In Bombay and the United Provinces its existence is fully recognised.</h4><h4><span style=\"font-size: 1.3125rem;\"><u>(18) Chiranjilal Srilal Goenka v. Jasjit Singh, (2001) 1 SCC 486.</u></span></h4><h4>The right of adoptive parents to dispose of their immovable property by transfer inter vivos or by will may be restricted only by a specific registered agreement expressly stating that such powers have been restricted.&nbsp;</h4><h4><span style=\"font-size: 1.3125rem;\"><u>(19) Mukund Singh v. Wazir Singh, (1972) 4 SCC 178.</u></span></h4><h4>Section 13 applies only where the property after adoption remains capable of being disposed of by the adoptive father as his property. Section 13 does not detract from the rule that a gift of coparcener\'s property by a member is void.&nbsp;</h4><h4><span style=\"font-size: 1.3125rem;\"><u>(20) Hirabai v. Babu Manika Ingale, 1980 Mah LJ 494 : AIR 1980 Bom 315.</u></span></h4><h4>Section 13 of the Act does not deal with the property wherein by reason of birth an interest is created, but deals with the property belonging to the adoptive father or mother. It preserves, notwithstanding the adoption, the right of the adoptive father or mother to dispose of his or her property by transfer inter vivos or by will. The provision was enacted so as to clarify that adoption would not have the negative effect on the right of ownership with regard to the property belonging to the adoptive father or mother.</h4><h4><span style=\"font-size: 1.3125rem;\"><u>(21) Dina Ji v. Daddi, (1990) 1 SCC 1.</u></span></h4><h4>Section 13 enacts that when the parties intend to limit the operation of proviso (c) to Section 12, it is open to them by an agreement<u>&nbsp;</u></h4><h4><span style=\"font-size: 1.3125rem;\"><u>(22) D. Lakshmana Rao v. D. Lakshmikanthamma, (1972) 2 AP LJ 38 (SN).</u></span></h4><h4>An adopted son can divest property of his adoptive father from the hands of the adoptive mother if only she is holding it as limited owner but not when she is holding under an absolute title.&nbsp;</h4><h4><span style=\"font-size: 1.3125rem;\"><u>(23) Chandan Bilasini v. Aftabuddin Khan, (1996) 7 SCC 13.</u></span></h4><h4>Where a widow or an unmarried woman adopts a child, any person whom she marries subsequently shall be deemed to be the step-father of the adopted child. In other words, the family relationship gets crystallised as to the date of adoption. The child will be deemed to be the child of the parent who adopts the child and the existing or deceased spouse of that parent (as the case may be), if any, will be considered the child\'s father or mother. A spouse subsequently acquired by the adoptive parent becomes the step-parent of the adopted child.&nbsp;<br></h4><h4><span style=\"font-size: 1.3125rem;\"><u>(24) Sitabai v. Ramchandra, (1969) 2 SCC 544.</u></span></h4><h4>It is a necessary implication of Sections 12 and 14 of the Act that a son adopted by the widow becomes a son not only of the widow but also of the deceased husband and hence is also a coparcener in the joint family properties.&nbsp;An adoption by the husband results in the adoption of the child by both these spouses; the child is not only the child of the adoptive father but also of the adoptive mother. In case of there being two wives, the child becomes the adoptive child of the senior most wife in marriage, the junior wife becoming the stepmother of the adopted child. Even when a widower or a bachelor adopts a child, and he gets married subsequent to the adoption, his wife becomes the stepmother of the adopted child.</h4>', '446370485b87973c2ec87c46104ead16.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-01', 1, '', '', '2021-07-02 03:51:14', '2021-07-02 03:51:14'),
(863, 'PZneIWRJ4uUdNcVvo8rCaMYLZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Section 11. Resjudicata. Important Judgments of High Courts and the Supreme Court. ', '<p><b>Nature and Scope.—Vague, cryptic and casual order in former proceeding containing finding that was neither directly in issue nor properly examined, cannot amount to res judicata, Ajay Arjun Singh v. Sharadendu Tiwari, (2016) 6 SCC 576 : (2016) 3 SCC (Civ) 222.</b></p><p><b>Section 11 Explanation VI, held, not confined to cases covered by Order 1 Rule 8 but extends to include any litigation in which, apart from Order 1 Rule 8 altogether, parties are entitled to represent interested persons other than themselves (such as suit by next friend of deity on behalf of deity/worshippers). Provisions of Order 1 Rule 8 do not control the applicability of Section 11 Expln. VI, M. Siddiq (Ram Janmabhumi Temple 5J) v. Suresh Das, (2020) 1 SCC 1.</b></p><p><b>Object.—The object and purport of the principle of res judicata as contended in Section 11 CPC is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subject-matter of lis stood determined by a competent court, no party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was brought into the statute book with a view to bring the litigation to an end so that the other side may not be put to harassment. The doctrine of res judicata is conceived not only in larger public interest which requires that all litigation must, sooner than later, come to an end but is also founded on equity, justice and good conscience, Swamy Atmananda v. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51.</b></p><p><b>Extent and applicability.—Where previous suit was dismissed for non-joinder of parties by giving liberty to plaintiff to file fresh suit and accordingly subsequent suit filed joining other defendants also and claiming reliefs different from those claimed in previous suit, neither parties, nor subject-matter nor relief claimed in two suits being the same, subsequent suit not barred by res judicata, City Municipal Council, Bhalki v. Gurappa, (2016) 2 SCC 200 : (2016) 2 SCC (Civ) 59.</b></p><p><b>Where former suit for possession of entire property was based on a settlement deed, and, subsequent suit for partition claiming plaintiff\'s share in property was based on her birth right, res judicata not attracted, Nagabhushanammal v. C. Chandikeswaralingam, (2016) 4 SCC 434 : (2016) 2 SCC (Civ) 642.</b></p><p><b>When the claim in subsequent suit could not have been the subject-matter of settlement between the parties, courts below, erroneously held that the suit was barred, Bharat Hydro Power Corpn. Ltd. v. State of Assam, (2016) 12 SCC 598.</b></p><p><b>First application under Order 22 Rule 4 dismissed without adjudication on merits, subsequent application under Order 1 Rule 10 not barred by res judicata, Pankajbhai Rameshbhai Zalavadiya v. Jethabhai Kalabhai Zalavadiya, (2017) 9 SCC 700.</b></p><p><b>Jurisdictional facts : Res judicata.—Principle of res judicata is not applicable in case of decisions relating to jurisdictional facts, Sonepat Coop. Sugar Mills Ltd. v. Ajit Singh, (2005) 3 SCC 232 : 2005 SCC (L&amp;S) 387.</b></p><p><b>Generally.—The principle of res judicata envisages that a judgment of a court of concurrent jurisdiction directly upon a point would create a bar as regards a plea, between the same parties in some other matter in another court, where the said plea seeks to raise afresh the very point that was determined in the earlier judgment, Swamy Atmananda v. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51.</b></p><p><b>Issue of fact determined finally between the parties by a court of competent jurisdiction, held, operates as res judicata when the same issue comes directly in question in subsequent proceedings between the same parties, Amarendra Komalam v. Usha Sinha, (2005) 11 SCC 251.</b></p><p><b>Section 11 generally comes into play in relation to civil suits. But apart from the codified law, the doctrine of res judicata or the principle of res judicata has been applied since long in various other kinds of proceedings and situations by courts in England, Indian and other countries, Ramchandra Dagdu Sonavane v. Vithu Hira Mahar, (2009) 10 SCC 273 : (2009) 4 SCC (Civ) 162.</b></p><p><b>While applying the principles of res judicata the court should not be hampered by any technical rules of interpretation, M. Nagabhushana v. State of Karnataka, (2011) 3 SCC 408 : (2011) 1 SCC (Civ) 733.</b></p><p><b>Different stages of the same proceedings.—Principles of res judicata apply in different stages of the same proceedings, Bhanu Kumar Jain v. Archana Kumar, (2005) 1 SCC 787; Chabbil Das v. Pappu, (2006) 12 SCC 41.</b></p><p><b>The principle of res judicata applies as between two stages in the same litigation so that if an issue has been decided at an earlier stage against a party, it cannot be allowed to be reagitated by him at a subsequent stage in the same suit or proceedings. Here what is sought to be reagitated is not really the order of remand but the order deciding a germane issue which was allowed to become final at an earlier stage of the same suit, C.V. Rajendran v. N.M. Muhammed Kunhi, (2002) 7 SCC 447.</b></p><p><b>Rent control proceedings.—Ground of bona fide need is a recurring cause of action as such landlord is not precluded from filing fresh proceedings for eviction if on the date of the fresh suit his requirement is bona fide, N.R. Narayan Swamy v. B. Francis Jagam, (2001) 6 SCC 473.</b></p><p><b>Res judicata and Supreme Court Rules : Order 32, Rule 2.—The Supreme Court Rules are not technical rules of procedure and are fundamental to the administration of justice in all courts, based on the principle that there must be an end to litigation. Assuming that the principles of res judicata are “law” within the meaning of Order 26, Rule 6(b) of the Rules, since the doctrine of res judicata is an “essential part of the rule of law”, it follows that if the issues raised in the suit are barred by res judicata ex facie then the Supreme Court is required to reject the plaint in terms of Order 23, Rule 6(b) of the Supreme Court Rules, State of Haryana v. State of Punjab, (2004) 12 SCC 673.</b></p><p><b>Res judicata and Order 2, Rule 2.—The doctrine of res judicata differs from the principle underlying Order 2, Rule 2 in that the former places emphasis on the plaintiff\'s duty to exhaust all available grounds in support of his claim, while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action, Kunjan Nair Sivaraman Nair v. Narayanan Nair, (2004) 3 SCC 277.</b></p><p><b>Constructive res judicata deals with grounds of attack and defence which ought to have been raised, but not raised, whereas Order 2, Rule 2 CPC relates to reliefs which ought to have been claimed on the same cause of action but not claimed, Alka Gupta v. Narender Kumar Gupta, (2010) 10 SCC 141 : (2010) 4 SCC (Civ) 73.</b></p><p><b>Res judicata and issue estoppel.—There is a distinction between “issue estoppel” and “res judicata”. Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine of issue estoppel is invoked against a party. If an issue is decided against a party, the party would be estopped from raising the same in the latter proceeding. The doctrine of res judicata creates a different kind of estoppel viz. estoppel by accord. However, the doctrine of “issue estoppel” as also “cause of action estoppel” may both be attracted. A cause of action estoppel arises where in two different proceedings identical issues are raised, in which event, the latter proceeding between the same parties shall be dealt with similarly as was done in the previous proceedings. In such an event the bar is absolute in relation to all points decided save and except allegations of fraud and collusion, Bhanu Kumar Jain v. Archana Kumar, (2005) 1 SCC 787.</b></p><p><b>Competent court.—Finding on issue of title recorded by Small Cause Court does not operates as res judicata and ultimately said issue has to be adjudicated upon by competent Civil Court, Nirmal Jeet Singh Hoon v. Itriza Hussain, (2010) 14 SCC 564 : (2012) 1 SCC (Civ) 759.</b></p><p><b>Order passed without jurisdiction is a nullity thus held, cannot operate as res judicata, even if such order attains finality in favour of some parties by virtue of not being appealed against, Union of India v. Assn. of Unified Telecom Service Providers of India, (2011) 10 SCC 543.</b></p><p><b>Order without jurisdiction cannot constitute res judicata, Chandrabhai K. Bhoir v. Krishna Arjun Bhoir, (2009) 2 SCC 315 : (2009) 1 SCC (Civ) 512.</b></p><p><b>The principle of res judicata would not apply where the judgment/order has been passed by a court having no jurisdiction, Union of India v. Pramod Gupta, (2005) 12 SCC 1.</b></p><p><b>Heard and finally decided.—The principle of res judicata would apply only when the lis was inter partes and had attained finality in respect of the issues involved. The said principle will, however, have no application inter alia in a case where the judgment and/or order had been passed by a court having no jurisdiction therefor and/or in a case involving a pure question of law. It will also have no application in a case where the judgment is not a speaking one, Union of India v. Pramod Gupta, (2005) 12 SCC 1.</b></p><p><b>Might and ought.—Condition of the matter having “been heard and finally decided” under main Section 11 must be satisfied before Explanation IV can apply. Hence plea which might and ought to have been taken in earlier suit or proceedings can be deemed to have been taken and decided against the person raising the plea in the subsequent suit or proceeding only where there had been final determination of rights of the parties in the earlier suit or proceeding, Konda Lakshmana Bapuji v. Government of A.P., (2002) 3 SCC 258.</b></p><p><b>Dismissal for default.—Dismissal of a suit for default does not operate as res judicata, fresh suit for partition is not barred by res judicata, Vinod Kumar v. Lalit Kumar, AIR 2011 J&amp;K 64.</b></p><p><b>Dismissal in limine.—Where earlier writ petition was dismissed in limine, no issue was framed nor decided, res judicata would not apply, would not bar subsequent writ petition which raises very same issues, Association of the Residents of Mhow v. Union of India, AIR 2010 MP 40, 51 (DB).</b></p><p><b>Res judicata and precedent.—For principles of res judicata to apply the lis and parties has to be the same. A binding precedent on the other hand arises when the court determines a certain issue for a certain sets of facts but in a different lis. Then if the material facts match in a later case, then, that issue stands determined for that later case though the lis and parties may be different. Fida Hussain v. Moradabad Development Authority, (2011) 12 SCC 615 : (2012) 2 SCC (Civ) 762.</b></p><p><b>Decision and not reasons res judicata.—Only ratio decidendi of a judgment would bar a subsequent suit, Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas, (2008) 11 SCC 753.</b></p><p><b>Industrial adjudication.—Res judicata applies to all litigations including industrial cases, Management of M/s. Indian Aluminium Co. Ltd. v. S. Nagaiah, AIR 2009 (NOC) 2004.</b></p><p><b>Habeas corpus petitions and res judicata.—The bar of res judicata or principles analogous thereto would not apply to a writ of habeas corpus where the petitioner prays for setting him at liberty, T.P. Moideen Koya v. State of Kerala, (2004) 8 SCC 106.</b></p><p><b>Writ petitions and res judicata.—Res judicata is applicable to writ petitions, Ishwar Dutt v. Collector (LA), (2005) 7 SCC 190.</b></p><p><b>Change in statutory law.—Change in law subsequent thereto (repeal of statutory provision on which said judgment/order based) does not take away the effect of the said judgment/order as between the parties thereto, State of Maharashtra v. R.S. Bhonde, (2005) 6 SCC 751 : 2005 SCC (L&amp;S) 907.</b></p><p><b>Applicability of doctrine of res judicata.—Suit by erstwhile owner/plaintiff challenging the auction-sale concerned of its property and inter alia seeking declaration of ownership and possession of the auctioned property is not maintainable when the issue pertaining to setting aside of auction-sale between the same parties in respect of the same property was decided in earlier writ proceedings. Triple requirement for the doctrine of res judicata to apply i.e. the claim in the earlier litigation is between the same parties, the cause of action and the subject-matter is same or identical, Andanur Kalamma v. Gangamma, (2018) 15 SCC 508.</b></p><p><b>Res judicata—Non-applicability of.—Exceptions to the principle of res judicata qua issues of law What are—Erroneous decisions on questions of law—When operate as res judicata in a subsequent suit and when do not — Law on said question, surveyed in detail and summarized, Canara Bank v. N.G. Subbaraya Setty, (2018) 16 SCC 228.</b></p><p><b>Res judicata.— Issue only collaterally or incidentally decided in earlier proceedings, held, would not operate as res judicata in proceedings where the issue is directly and substantially involved. Test to be applied to ascertain whether the matter was directly and substantially in issue, explained. The test is whether the issue was necessary to be decided for adjudicating on the principal issue and was decided : if it is clear that the earlier judgment was in fact based upon that decision, then it would be res judicata in a latter case, but not otherwise. Such determination is to be made on the facts of each case. Examination of pleadings, issues framed and judgment of the earlier proceedings is required, Nand Ram v. Jagdish Prasad, (2020) 9 SCC 393.</b></p><p><b>Constructive res judicata.— Principles for application of principle of constructive res judicata as against principle of res judicata, explained. No additional circumspection, held, is required in application of principle of constructive res judicata. It would depend on the facts of each case. Both are based on same underlying principles, Asgar v. Mohan Varma, (2020) 16 SCC 230.</b></p><div><br></div>', '8ed7465a5bd43d67949639e53d4854b5.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-03', 1, '', '', '2021-07-03 18:24:03', '2021-07-05 02:58:24'),
(2774, 'WdjePhtI9Mcj3G1HCapAgHfzq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mere payment of premium amount before occurrence of accident will not cover liability if the insurance policy is issued with effect from the time after the accident. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Samilulla and others Vs Mehatabulla and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>MFA CROB 100086 of 2019 decided 22 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Somashekar and Justice Umesh M Adiga.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>It was the case of the petitioners in MVC No.28/2015 that on 21.05.2015 at about 9.15 p.m. the deceased Sayed Sadatulla s/o Samiulla Killedar had met with an accident while going as pillion rider in motorcycle bearing No.KA-27/X-1939, rode by respondent No.1, in rash and negligent manner near Bhagatsingh Circle of Rattihalli in Haveri District. Due to the same, he sustained severe injuries and while shifting him to the hospital at Davanagere, he succumbed to the injuries. It was further contention of the claimants/petitioners that deceased was aged about 20 years at the time of the accident and he was a student and also doing private work and earning Rs.20,000/- p.m. The petitioners were depending upon his earnings. With these reasons, they prayed to award compensation of Rs.30,00,000/-.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>The appellant in MFA No.101312/2019 is the owner of the said vehicle and respondent No.1 before the Tribunal. He had contended that he insured the said motorcycle with respondent No.2 and he had valid driving licence to ride motorcycle. Therefore, respondent No.2 was liable to pay the compensation. He has not denied other averments stated in the petition and prayed to dismiss the petition against him.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space:pre\">	</span>Respondent No.2-insurance company had contended before the Tribunal that alleged accident had taken place on 21.05.2015 at 9.15 p.m. However, the FIR was registered on 22.05.2015 at 8.15 p.m. The police did not inform about the said accident to respondent No.2. Petitioners have fabricated the case to claim compensation by colluding with respondent No.1 and Police. Therefore, claimants are not entitled for compensation. It further contended that at the time of accident, policy of insurance was not in force. The insurance policy was issued by respondent No.2 on the said motorcycle, was valid from 00-00 hours on 22.05.2015 to midnight of 21.05.2016. Therefore, before issuance of policy of insurance, the accident had taken place. Therefore, respondent No.2 was not liable to pay compensation or indemnify respondent No.1. Respondent No.2 denied all other averments made in the petition and prayed for dismissal of the petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>Following points emerge for our determination: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1)<span style=\"white-space:pre\">	</span>Whether the Tribunal was justified in fastening the liability on respondent No.1- owner of the vehicle though he had paid premium before the occurrence of the accident in question? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2)<span style=\"white-space:pre\">	</span>Whether the quantum of compensation awarded by the Tribunal call for any modification?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>As per the findings of the Tribunal, it has considered the  income of the  deceased as Rs.10,000/- p.m. and added 40% of the said income towards future prospects and multiplied it by the multiplier ‘18’ and awarded compensation under the head loss of dependency. Admittedly, there is no material on record to show that deceased was dealing with electrical items or working as Electrician. Under these circumstances, the Tribunal had to assess the income of the deceased on the basis of guess work. While settling the disputes in the Lok Adalaths, for the accident taken place during the year 2015, the income of the victim or deceased in an accident, is taken as Rs.8,000/- p.m. Same has to be considered in the present case. As rightly held by the Tribunal, 40% of the income has to be added towards future prospects. Deceased was unmarried and left behind him his parents. Therefore, 50% of the said income is to be deducted towards personal expenses. Therefore, the compensation to be awarded under the head loss of dependency is Rs.5,600/- x 12 x 18 Rs.12,09,600/-.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25.<span style=\"white-space:pre\">	</span>In this case, as per Ex.R4, the insured had made a proposal by submitting prescribed form with paying premium in advance at about 4.00 p.m. and made a proposal to insure his vehicle for a period of one year from 22.05.2015 till 21.05.2016. The said proposal was accepted by Insurer. According to the evidence of R.Ws.2 and 3, both the parties to the said agreement or contract, knew that the liability of insurer commences from 00.00 hours on 22.05.2015. Respondent No.1 did not request respondent No.2 to commence the liability immediately after acceptance of the policy or proposal given by respondent No.1. Therefore, when by clear terms both the parties, i.e., respondent No.1 and respondent No.2 agreed that the liability of respondent No.2 shall commences from 00.00 hours of 22.05.2015, now he cannot claim that he paid the premium at about 4.10 p.m. therefore, liability of respondent No.2 i.e., insurer commences immediately after receipt of Ex.R4 and it is not legally sustainable.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>30.<span style=\"white-space:pre\">	</span>In the case of Sudharshan (supra), the Coordinate Bench of this court relying on various judgments directed the insurer to pay the compensation to the claimant. But the facts of the said case were different. In all the cases, relied in the said judgment were pertaining to the cases wherein there was no reference about date of commencement of the risk in the receipt/proposal. But in this case, as per Ex.R4, date of commencement of risk was mentioned as, from 22.05.2015”. The said terms of contract prevails and this court cannot direct the insurer to pay the compensation when there was no policy of insurance at the time of accident.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>36.<span style=\"white-space:pre\">	</span>In this case, as per Ex.R4, proposal period of risk commences from 22.05.2015. Accident had taken place on 21.05.2015 at 9.15 p.m. At that time, policy of insurance was not in force. Hence, Respondent No.2 – Insurer cannot be directed to indemnify the Respondent- Owner of vehicle or direct the Respondent No.2 to pay the compensation amount to claimants and recover from the owner. Hence, said contention of appellant and claimant is not tenable. The finding of Tribunal in this regard cannot be interfered.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>MFA No.101312/2019 is partly allowed. No costs. MFA Crob.100086/2019 is dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e67b491f7dc7fe3087429fd1c4deb12f.jpeg', '1e962180298cf95b9817d55a6a4604ac.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-10', 1, '', '', '2023-03-09 14:33:06', '2023-03-10 03:27:01'),
(865, 'Rur2eEXZMG7yKzmsosROngM24', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land acquisition for Urban Development Authorities. Prolonged delay in issuing final notification after preliminary notification amounts to abandonment of acquisition. Landowner can utilize the lands in accordance with law. Karnataka High Court. ', '<div><b>Basavaraj Bhimappa Illiger vs State of Karnataka and another. </b></div><div><b><br></b></div><div><b>Writ Petition 107510 of 2017 decided on 20 April 2021.</b></div><div><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><br></b></div><div><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Justice Sachin Shankar Magadum.</b><br></div><div><br></div><div><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">The grievance of the petitioner before this Court is that though the petition lands were proposed to be acquired way back in 2007, however, the respondent No.2 has never published in the Official Gazette notifying the lands in question for acquisition. Though preliminary notification is of the year 2007, there is absolutely no progress in issuance of final notification under Section 19 of the Karnataka Urban Development Authorities Act, 1987. The petitioner also claims that since the respondent No.2 has failed to issue final notification within the reasonable time, the impugned notification issued under Section 17 has become unenforceable. It is also stated that the petition lands are designated and reserved for residential purpose in the master plan published by the respondent No.2. The petitioner on the premise that the respondent No.2 has virtually abandoned the scheme, submitted an application on 12.09.2016 as per Annexure-C requesting the respondent No.2 to issue NOC for utilizing the lands in question for residential purpose.</b><br></div><div><b><br></b></div><div><b>3. The petitioner is before this Court on account of inaction on the part of the respondent No.2 in not considering the representation. Therefore, the petitioner has sought for writ of certiorari to quash the preliminary notification issued under Section 17 as per Annexure-A proposing to acquire the petition lands. The petitioner has also sought for a writ of mandamus to direct the respondents to issue NOC. considering the representation. Therefore, the petitioner has sought for writ of certiorari to quash the preliminary notification issued under Section 17 as per Annexure-A proposing to acquire the petition lands. The petitioner has also sought for a writ of mandamus to direct the respondents to issue NOC.</b></div><div><b><br></b></div><div><b>13.<span style=\"white-space:pre\">	</span>On bare reading of Section 4 of the above said Act, it is clearly evident that the embargo on the land owners in transferring the property by way of sale, mortgage, gift, wills or otherwise would arise only when a final declaration is published under Section 19 of the Karnataka Urban Development Authorities Act, 1987. Admittedly, in the present case on hand, though the preliminary notification is of the year 2007, the respondent No.2 for reasons better known to them, have not taken steps to issue final declaration till this date. Therefore, the contention of the respondent No.2 that the sale deed executed by the erstwhile owner in favour of petitioner under registered sale deed dated 17.03.2012 is void ab initio cannot be acceded to. The embargo or restriction would come into play only after the authorities issue final declaration under Section 19. Mere issuance of preliminary notification would not in itself lay any embargo and the same is evident from Section 4 of the Karnataka Land (Restriction on Transfer) Act, 1991.</b></div><div><b><br></b></div><div><b>16. On perusal of the material on record, this Court would find that the respondent No.2 has virtually abandoned the scheme and therefore, if the respondent No.2 has failed to issue final declaration under Section 19, the land owners cannot be left remedyless and their valuable rights in the property cannot be taken away on the premise that the preliminary notification is issued and the authorities are contemplating to implement the scheme by issuing final declaration. The preliminary notification is of the year 2007 and we are in 2021. It would be gross injustice if this Court does not interfere and adjudicate the grievance of the petitioner whose properties are notified by respondent No.2-authority by way of preliminary notification thereby taking away the valuable rights of the petitioner in dealing with the property in accordance with law.&nbsp;</b></div><div><b><br></b></div><div><b>18...The fact that the respondent No.2 has failed to acquire the lands by issuing final declaration, this Court would not hesitate to hold that the entire scheme is abandoned and if petitioner is not permitted to utilize the lands, would virtually result in miscarriage of justice.</b></div><div><b><br></b></div><div><b>The writ petition is allowed. The impugned preliminary notification as per Annexure-A is quashed. The respondent No.2 is directed to issue NOC to enable the petitioner to utilize the lands in accordance with law. This exercise shall be done within a period of three months from the date of receipt of a copy of this order.</b></div>', '94303676fc639e0bc9973f303f6e2895.jpeg', '4808f56dc0af860c37806942691caa56.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-21', 1, '', '', '2021-07-03 23:23:13', '2023-01-21 11:43:36');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(866, 'hOPtpuKViWEkHThHjcKgKtyaz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Registration Act, 1908. Sub-Registrar is NOT bound to register every document presented for registration. The document has to comply with the requirement of the Registration Act and the Registration Rules. Procedure explained. Karnataka High Court. ', '<p><b>R. Sampath vs State of Karnataka and others. </b></p><p><b>Writ Petition 18660 of 2013 decided on 5 November 2020</b></p><p><b><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Judgment Link: </span><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347198/1/WP18660-13-05-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347198/1/WP18660-13-05-11-2020.pdf</a></b></p><p><b><u><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">(i)&nbsp;</span><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">What is the role of the Sub-Registrar when a document is presented for registration?</span></u></b></p><p><b><u>(ii) Would a Sub-Registrar be&nbsp; required to register any document presented for registration?</u></b></p><p><b>9.2.<span style=\"white-space:pre\">	</span>Sub Registrars are statutory authorities appointed by the State Government in the exercise of the power conferred&nbsp; under Section 6 of the Registration Act, 1908 (for brevity referred to as Registration Act) or by the Registrar of the District in the exercise of the powers conferred under Section 12 of the Registration Act which is reported by the Registrar to the State Government under Section 13 of the Registration Act.</b></p><p><b>9.3.<span style=\"white-space:pre\">	</span>The following books shall be kept in all the registration offices, namely:-</b></p><p><b>9.3.1. Book-I: Register of non-testamentary documents&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">relating&nbsp;</span><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">to&nbsp;</span><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">immovable property;</span></b></p><p><b>9.3.2. Book-II: Record of reasons for refusal to register;</b></p><p><b>9.3.3. Book-III: Register of wills and authorities to adopt;</b></p><p><b>9.3.4. Book-IV: Miscellaneous Register;</b></p><p><b>9.3.5. Book-V: Register of deposits of wills.</b></p><p><b>9.4. In Book I shall be entered or filed all documents or memoranda registered under sections 17, 18 and 89&nbsp; which relate to immovable property, and are not wills.</b></p><p><b>9.5.<span style=\"white-space:pre\">	</span>In Book II shall be entered the reasons for refusal to register any document presented for registration;</b></p><p><b>9.6.<span style=\"white-space:pre\">	</span>In Book III shall be entered the details of all wills registered as also adoption deeds;</b></p><p><b>9.7.<span style=\"white-space:pre\">	</span>In Book IV shall be entered all&nbsp; documents registered under clauses (d) and (f) of section 18 which do not relate to immovable property.</b></p><p><b>9.8.<span style=\"white-space:pre\">	</span>The Sub-Registrar or a Registrar of Assurance is vested with a&nbsp; very important role in accepting the documents presented for&nbsp; registration and registering the same. These documents could be as regards immediate transfer of a property like&nbsp; sale deed, lease deed, gift deed, etc., which are registered in Book-I and certain documents could be presented&nbsp; for registration which could operate in&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">future like a Will which is registered in Book-IV.</span></b></p><p><b>9.9.<span style=\"white-space:pre\">	</span>The role and duty of a Sub-Registrar in respect of documents which convey a property or transfer of a property is of paramount importance.</b></p><p><b>9.10. A Sub-Registrar is not a ministerial authority, nor does he perform clerical work of registering any document placed before him for registration. There are vast resources made available to such registrars, including the assistance of several officers and staff to perform his duties.</b></p><p><b>9.11. The Sub-Registrar performs an administrative role, such role is to be performed in the manner as prescribed under law primarily being the Indian&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Registration Act and in Karnataka as per the suitable amendments made to the Registration Act by the State of Karnataka as also the Karnataka Registration Rules, 1965, hereinafter for brevity referred to as Registration Rules which are framed in furtherance&nbsp; of Indian Registration Act.</span></b></p><p><b>9.12. The entire gamut of role and authority of Sub-Registrar cannot be considered and laid down in a judgment. However, for the purpose of the facts in dispute, the relevant role in respect of factual matrix is required to be ascertained.</b></p><p><b>9.13. A Sub-Registrar is required to follow the procedure laid down in Rules 69 to 81 of the Registration Rules more so for the reason that under Rule 171 (1) of Registration Rules, a Sub-Registrar can&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">also refuse registration of a document in terms of what is stated in the said Rule. This would necessarily imply that the power or authority to register&nbsp; a document vested with the Sub-Registrar is one coupled with duties that are required to be discharged by such Sub- Registrar prior to such registration. If there is any violation of this and if the Sub-Registrar were not to follow the applicable rules, there could be a document which could be registered which was not supposed to have been registered which would wreak havoc on the rights of the persons interested in such property.</span></b></p><p><b>9.14. A Registrar or a Sub-Registrar is&nbsp; required to be appointed by the State of Karnataka in terms of Section 6 of the&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Registration Act, 1908 and is required to perform the functions and duties as prescribed under the Registration Act, 1908.</span></b></p><p><b>9.15. Registration Act itself contains various provisions bringing out the requirement for registration as also the duties and powers of the Registering Officers.</b></p><p><b>9.16. For example, Part III from Sections 17 to 22-A deals with ‘Registrable documents’. If a document is not compulsorily registrable, the same is not required to be registered. In terms of Section 21, a document can only be registered if it contains the description of such property and maps or plans which are sufficient to identify the same.</b></p><p><b>9.17. Part IV from Sections 23 to 27 deals with ‘Time of Presentation’.</b></p><p><b>9.18. Part V from Sections 28 to 31 deals with ‘the Place of Registration’.</b></p><p><b>9.19. Part VI from Sections 32 to 35 deals with the method and manner of ‘Presenting documents for Registration’.</b></p><p><b>9.20. Part XI from Sections 51 to 70 deals with the ‘Duties and Powers of Registering Officers’.</b></p><p><b>9.21. Part XI-A from Section 70A to 70G deals with ‘Registration of documents by&nbsp; means of electronic or other devices’.</b></p><p><b>9.22. Part XII from Sections 71 to 77&nbsp; deals with ‘Refusal to Register’.</b></p><p><b>9.23. For the present facts and circumstances of this case, it is Part XI and XII which are relevant more so Part XII.</b></p><p><b>9.24. If the requirements of Part III to Part VI of the Registration Act are not satisfied, the question of proceeding towards registration of the document would not&nbsp; at all arise.</b></p><p><b>9.25. Under Part XII the Registrar has been provided with powers of refusal of registration of the document.</b></p><p><b>9.26. Section 71 reads as under:-</b></p><p><b>“71. Reasons for refusal to register to be recorded:- (1) Every Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub-district, shall make an order of refusal and record his reasons for such order in his Book No.2, and endorse the words “registration refused” on the document; and, on application made by any person executing or claiming under the document, shall, without<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">him a copy of the reasons so recorded.</span></b></p><p><b>(2) No Registering Officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered.”</b></p><p><b>9.27. Reading of the above Section makes it clear that if the property is not situated within its jurisdiction, the Sub-Registrar can refuse registration without affording any reasons. However, if registration is refused for reasons other than above, then the Sub-Registrar is required to record his reasons for such refusal in Book-II and endorse the words “registration refused” on the document on an application made by any person executing or claiming under the document.</b></p><p><b>9.28. Thus, this provision makes it clear that a Sub-Registrar is not required to register all or any document presented for registration. There are instances which would afford the power and authority to the said Sub-Registrar to refuse registration.</b></p><p><b>9.29. Apart from the Registration Act, land and registration of conveyance relating to land being a State subject, the State of Karnataka has formulated Karnataka Registration Rules, 1965, which would apply to the registration of any document.&nbsp;&nbsp;</b></p><p><b>9.30. A reading of the above Rule 171 would indicate that the reasons for refusal to register would have to be recorded in Book II.</b></p><p><b>9.31. The said Rule is only illustrative, illustrating the power or in some cases duty of the Registrar to refuse registration on account of non- compliance or default or violation of various provisions referred to and as detailed under Rule 171 of the Registration Rules.</b></p><p><b>9.32. For the purpose of this matter, the Registrar is entitled to refuse registration in terms of Section 171(iii) that is to say that description of the property is insufficient to identify or it does not contain the information required by Rule</b></p><p><b>9.33. Rule 171 (iv) is also&nbsp; attracted affording or entitling the Sub-Registrar to refuse registration if the document is unaccompanied by a copy or copies of map or plan which it contains. In the facts and circumstances of the case, Rule 171(iii), (vi) and (vii)&nbsp; would&nbsp; be attracted.</b></p><p><b>9.34. However, as stated hereinabove, in the event of Sub-Registrar refusing registration, for any of the reasons under Registration Act or Registration Rules, he is required to record the said reasons in Book-II maintained at his office.</b></p><p><b>9.42. Thus from the above, it is clear that a Sub-Registrar can refuse registration in terms of Section 71 of the Registration Act read with Rule 171 of the Karnataka Registration Rules for the reasons stated therein. The said order would have to be reasoned, and such reasons should be recorded in Book II.</b></p><p><b>9.44. In view of the same, I answer Point No.(i) by holding that the role of the Sub-Registrar is detailed hereinabove.</b></p><p><b>9.45. I answer Point No.(ii) by holding&nbsp; that the Sub-Registrar is not&nbsp; required to register any document presented for registration. The document presented for registration has to comply with the requirement of the Registration Act and the Registration Rules for it to be registered. If the document does&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">not comply with all the requirements as mentioned above, then the Registrar can refuse the registration by a reasoned order to be recorded&nbsp; in Book II. If the Sub-registrar were to register a document contrary to the applicable rules, the sub- registrar can be proceeded with in accordance with law.</span></b></p><p><br></p>', '787a9ac662044a8a26f8a3adfd6fe2af.jpg', '011da359b720cbc7e52eace199646ccc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-05', 1, '', '', '2021-07-04 15:16:50', '2021-07-04 15:20:41'),
(867, 'oRUP21p5KQ429a09wwrA58ibu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Registration Act, 1908. Detailed procedure for registration of documents by the Sub-Registrar explained. Karnataka High Court. ', '<p><b>R. Sampath vs State of Karnataka and others.</b></p><p><b>Writ Petition 18660 of 2013 decided on 5 November 2020</b></p><p><b><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Judgment Link:&nbsp;</span><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347198/1/WP18660-13-05-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347198/1/WP18660-13-05-11-2020.pdf</a></b></p><p><u><b><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">(i)&nbsp;</span><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">What is the role of the Sub-Registrar when a document is presented for registration?</span></b></u></p><p><u><b>(ii) Would a Sub-Registrar be&nbsp; required to register any document presented for registration?</b></u></p><p><b>9.2.<span style=\"white-space: pre;\">	</span>Sub Registrars are statutory authorities appointed by the State Government in the exercise of the power conferred&nbsp; under Section 6 of the Registration Act, 1908 (for brevity referred to as Registration Act) or by the Registrar of the District in the exercise of the powers conferred under Section 12 of the Registration Act which is reported by the Registrar to the State Government under Section 13 of the Registration Act.</b></p><p><b>9.3.<span style=\"white-space: pre;\">	</span>The following books shall be kept in all the registration offices, namely:-</b></p><p><b>9.3.1. Book-I: Register of non-testamentary documents&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">relating&nbsp;</span><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">to&nbsp;</span><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">immovable property;</span></b></p><p><b>9.3.2. Book-II: Record of reasons for refusal to register;</b></p><p><b>9.3.3. Book-III: Register of wills and authorities to adopt;</b></p><p><b>9.3.4. Book-IV: Miscellaneous Register;</b></p><p><b>9.3.5. Book-V: Register of deposits of wills.</b></p><p><b>9.4. In Book I shall be entered or filed all documents or memoranda registered under sections 17, 18 and 89&nbsp; which relate to immovable property, and are not wills.</b></p><p><b>9.5.<span style=\"white-space: pre;\">	</span>In Book II shall be entered the reasons for refusal to register any document presented for registration;</b></p><p><b>9.6.<span style=\"white-space: pre;\">	</span>In Book III shall be entered the details of all wills registered as also adoption deeds;</b></p><p><b>9.7.<span style=\"white-space: pre;\">	</span>In Book IV shall be entered all&nbsp; documents registered under clauses (d) and (f) of section 18 which do not relate to immovable property.</b></p><p><b>9.8.<span style=\"white-space: pre;\">	</span>The Sub-Registrar or a Registrar of Assurance is vested with a&nbsp; very important role in accepting the documents presented for&nbsp; registration and registering the same. These documents could be as regards immediate transfer of a property like&nbsp; sale deed, lease deed, gift deed, etc., which are registered in Book-I and certain documents could be presented&nbsp; for registration which could operate in&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">future like a Will which is registered in Book-IV.</span></b></p><p><b>9.9.<span style=\"white-space: pre;\">	</span>The role and duty of a Sub-Registrar in respect of documents which convey a property or transfer of a property is of paramount importance.</b></p><p><b>9.10. A Sub-Registrar is not a ministerial authority, nor does he perform clerical work of registering any document placed before him for registration. There are vast resources made available to such registrars, including the assistance of several officers and staff to perform his duties.</b></p><p><b>9.11. The Sub-Registrar performs an administrative role, such role is to be performed in the manner as prescribed under law primarily being the Indian&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Registration Act and in Karnataka as per the suitable amendments made to the Registration Act by the State of Karnataka as also the Karnataka Registration Rules, 1965, hereinafter for brevity referred to as Registration Rules which are framed in furtherance&nbsp; of Indian Registration Act.</span></b></p><p><b>9.12. The entire gamut of role and authority of Sub-Registrar cannot be considered and laid down in a judgment. However, for the purpose of the facts in dispute, the relevant role in respect of factual matrix is required to be ascertained.</b></p><p><b>9.13. A Sub-Registrar is required to follow the procedure laid down in Rules 69 to 81 of the Registration Rules more so for the reason that under Rule 171 (1) of Registration Rules, a Sub-Registrar can&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">also refuse registration of a document in terms of what is stated in the said Rule. This would necessarily imply that the power or authority to register&nbsp; a document vested with the Sub-Registrar is one coupled with duties that are required to be discharged by such Sub- Registrar prior to such registration. If there is any violation of this and if the Sub-Registrar were not to follow the applicable rules, there could be a document which could be registered which was not supposed to have been registered which would wreak havoc on the rights of the persons interested in such property.</span></b></p><p><b>9.14. A Registrar or a Sub-Registrar is&nbsp; required to be appointed by the State of Karnataka in terms of Section 6 of the&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Registration Act, 1908 and is required to perform the functions and duties as prescribed under the Registration Act, 1908.</span></b></p><p><b>9.15. Registration Act itself contains various provisions bringing out the requirement for registration as also the duties and powers of the Registering Officers.</b></p><p><b>9.16. For example, Part III from Sections 17 to 22-A deals with ‘Registrable documents’. If a document is not compulsorily registrable, the same is not required to be registered. In terms of Section 21, a document can only be registered if it contains the description of such property and maps or plans which are sufficient to identify the same.</b></p><p><b>9.17. Part IV from Sections 23 to 27 deals with ‘Time of Presentation’.</b></p><p><b>9.18. Part V from Sections 28 to 31 deals with ‘the Place of Registration’.</b></p><p><b>9.19. Part VI from Sections 32 to 35 deals with the method and manner of ‘Presenting documents for Registration’.</b></p><p><b>9.20. Part XI from Sections 51 to 70 deals with the ‘Duties and Powers of Registering Officers’.</b></p><p><b>9.21. Part XI-A from Section 70A to 70G deals with ‘Registration of documents by&nbsp; means of electronic or other devices’.</b></p><p><b>9.22. Part XII from Sections 71 to 77&nbsp; deals with ‘Refusal to Register’.</b></p><p><b>9.23. For the present facts and circumstances of this case, it is Part XI and XII which are relevant more so Part XII.</b></p><p><b>9.24. If the requirements of Part III to Part VI of the Registration Act are not satisfied, the question of proceeding towards registration of the document would not&nbsp; at all arise.</b></p><p><b>9.25. Under Part XII the Registrar has been provided with powers of refusal of registration of the document.</b></p><p><b>9.26. Section 71 reads as under:-</b></p><p><b>“71. Reasons for refusal to register to be recorded:- (1) Every Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub-district, shall make an order of refusal and record his reasons for such order in his Book No.2, and endorse the words “registration refused” on the document; and, on application made by any person executing or claiming under the document, shall, without<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">him a copy of the reasons so recorded.</span></b></p><p><b>(2) No Registering Officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered.”</b></p><p><b>9.27. Reading of the above Section makes it clear that if the property is not situated within its jurisdiction, the Sub-Registrar can refuse registration without affording any reasons. However, if registration is refused for reasons other than above, then the Sub-Registrar is required to record his reasons for such refusal in Book-II and endorse the words “registration refused” on the document on an application made by any person executing or claiming under the document.</b></p><p><b>9.28. Thus, this provision makes it clear that a Sub-Registrar is not required to register all or any document presented for registration. There are instances which would afford the power and authority to the said Sub-Registrar to refuse registration.</b></p><p><b>9.29. Apart from the Registration Act, land and registration of conveyance relating to land being a State subject, the State of Karnataka has formulated Karnataka Registration Rules, 1965, which would apply to the registration of any document.&nbsp;&nbsp;</b></p><p><b>9.30. A reading of the above Rule 171 would indicate that the reasons for refusal to register would have to be recorded in Book II.</b></p><p><b>9.31. The said Rule is only illustrative, illustrating the power or in some cases duty of the Registrar to refuse registration on account of non- compliance or default or violation of various provisions referred to and as detailed under Rule 171 of the Registration Rules.</b></p><p><b>9.32. For the purpose of this matter, the Registrar is entitled to refuse registration in terms of Section 171(iii) that is to say that description of the property is insufficient to identify or it does not contain the information required by Rule</b></p><p><b>9.33. Rule 171 (iv) is also&nbsp; attracted affording or entitling the Sub-Registrar to refuse registration if the document is unaccompanied by a copy or copies of map or plan which it contains. In the facts and circumstances of the case, Rule 171(iii), (vi) and (vii)&nbsp; would&nbsp; be attracted.</b></p><p><b>9.34. However, as stated hereinabove, in the event of Sub-Registrar refusing registration, for any of the reasons under Registration Act or Registration Rules, he is required to record the said reasons in Book-II maintained at his office.</b></p><p><b>9.42. Thus from the above, it is clear that a Sub-Registrar can refuse registration in terms of Section 71 of the Registration Act read with Rule 171 of the Karnataka Registration Rules for the reasons stated therein. The said order would have to be reasoned, and such reasons should be recorded in Book II.</b></p><p><b>9.44. In view of the same, I answer Point No.(i) by holding that the role of the Sub-Registrar is detailed hereinabove.</b></p><p><b>9.45. I answer Point No.(ii) by holding&nbsp; that the Sub-Registrar is not&nbsp; required to register any document presented for registration. The document presented for registration has to comply with the requirement of the Registration Act and the Registration Rules for it to be registered. If the document does&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">not comply with all the requirements as mentioned above, then the Registrar can refuse the registration by a reasoned order to be recorded&nbsp; in Book II. If the Sub-registrar were to register a document contrary to the applicable rules, the sub- registrar can be proceeded with in accordance with law.</span></b></p><p><br></p>', 'e2245e781c0e55cc7dbc7f275d1e5f95.jpg', '6691d75ddc7bbfd80db2b24c8c1e6949.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-05', 1, '', '', '2021-07-04 15:37:17', '2021-07-05 02:55:58'),
(868, 'Hb9KPS9xMdtyK0RzsZoyQEFnr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Registration Act, 1908. Compliance with the provisions of Karnataka Land Revenue Act and Karnataka Land Reforms Act is compulsory for registration of document. Karnataka High Court. ', '<p><b>R. Sampath vs State of Karnataka and others.</b></p><p><b>Writ Petition 18660 of 2013 decided on 5 November 2020</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347198/1/WP18660-13-05-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347198/1/WP18660-13-05-11-2020.pdf</a></b></p><p><b><u>10.<span style=\"white-space:pre\">	</span>POINT NO.(iii): Would the requirement under the Karnataka Land Revenue&nbsp; Act&nbsp; and the Karnataka Land Reforms Act be required to be fulfilled in order to proceed for registration?</u></b></p><p><b>10.1. Karnataka Land Revenue Act, 1964 and Karnataka Land Reforms Act, 1961 have various provisions relating to&nbsp; the&nbsp; transfer of land.</b></p><p><b>10.10. Land Revenue Act also has several provisions relating to the transfer of agricultural land, those provisions would also require to be followed where provided.</b></p><p><b>10.11. One such requirement is providing of a sketch popularly known as 11E sketch. The said 11E sketch is required to be issued in terms of Form 11E by the Licenced Surveyor which form has been prescribed in terms of Rule 47H in terms whereof, the respective Survey Officer is required to prepare the sketch for each&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">sub-division of the property. This is required for all the lands as regards which mutations have taken place subsequent to the preparation of the preliminary record which would in&nbsp; turn be required for the preparation of the records of rights in terms of Section 171 of the Karnataka Land Revenue Act.</b></p><p><b>10.12. In terms of Section 21 (1) to (3) and 22 of the Registration Act, the document presented for registration has to include&nbsp; a description of the property in sufficient details so as to identify it, and&nbsp; the&nbsp; details are as prescribed under Rule 15&nbsp; of Karnataka Registration Rules, 1965.</b></p><p><b>10.13. The said Rule 15 is reproduced hereinabove. A perusal of the same&nbsp; would indicate that whenever any non- testamentary document is presented for&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">registration, the Registering Officer is required to satisfy that if the land comprises one or more entire survey fields or sub-divisions the document specifies the number of each field or sub-division and that if the land has no separate number assigned to it, the documents specifies number assigned to the field or sub-division in which the land is situated and further includes a description of the land sufficient for its identification.</b></p><p><b>10.14. Such lands are required to be presented for registration by reference to the serial numbers (Pot Hissa Numbers as well as survey numbers) in the maps prepared under the Land Revenue Act, 1964 which would include Rule 15 of the Registration Rules. Therefore, it requires that the&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Registering Officer is to satisfy himself that the requirements under the Land Revenue Act, 1964 relating to the survey number or the sub numbers are properly and correctly carried out.</b></p><p><b>10.15. Thus, the Sub-Registrar will be within his jurisdiction to call for or require the annexation of such documents presented for registration so as to identify the property alienated so as to prevent multiplicity in registration etc.</b></p><p><b>10.16. In the present case, as per endorsement issued by the Sub-Registrar, it is clear that the refusal of registration is on account of 11E sketch not being enclosed. The same&nbsp; being requirement of law on the date when the document was presented for registration, it was but required for the presenters of the&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">document to include such&nbsp; sketch.&nbsp; If such sketch is not enclosed, Registrar was well within his rights to refuse registration.</b></p><p><u><b>10.17. Hence, I answer Point No. (iii) by holding that if there are requirement/s under the Karnataka Land Revenue Act, 1964 or Karnataka Land Reforms Act, 1961 which are required to be followed by the Sub-Registrar, the same would have to be so followed for the Sub- Registrar or the Registering Officer to proceed with registration. The declaration under Section 81A of the Karnataka Land Reforms Act and the requirement of production of 11E sketch prepared in terms of Land Revenue Act not having been&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">fulfilled, the Sub-Registrar was justified in refusing registration.</b></u></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '35e76cdcb446dbfb43b81a8ae92e3670.jpg', '0bad886091126f8b9d1f8b702f37e496.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-05', 1, '', '', '2021-07-04 16:03:45', '2021-07-04 16:03:45');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(869, 'IwlAq8M7jIrI90wqtKmm4TelU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Copyright Act, 1957. Important Judgments of High Courts and the Supreme Court. ', '<p><b><u>Author.</u>—“Author” means the originator of the statement, but does not include a person who did not intend that his statement be published at all, Bunt v. Tillry, (2007) 1 WLR 1243.</b></p><p><u style=\"font-weight: bolder; font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Author.</u><span style=\"font-weight: bolder; font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\"> </span><b>Under the copyright law, only natural persons, and not incorporated entities, can be the “author”. The incorporate entities can be the “owner” of a copyright, Asia Pacific Publishing Pte Ltd. v. Pioneers & Leaders (Publishers) Pte Ltd., (2011) 4 SLR 381 : 2011 SGCA 37.</b></p><p><b><u>Cinematograph film</u>.—Definition of “cinematograph film” in Section 2(f) includes sound track, if any, and any work produced by any process analogous to cinematography video and Television are appliances, capable of use for reception of signs, signals, writing, images and sounds and hence, would fall within the definition of telegraph. Both articles would be cinematograph, jointly and severally-inclusive definition and not an exhaustive definition. Definition of “Infringing copy” in Section 2(m) applies, only to the reproduction of a work in the form of a cinematograph film. Copyright means exclusive right to do or authorise the doing of any of the acts specified in Clauses (i) to (iv) of Clause (c) Copyright in film, is an “artistic work”, P. Thulasidas v. K. Vasanthakumari, (1991) 1 LW 220 (Mad).</b></p><p><b><u>Communication to the public</u>.—Expression “communication to the public” carries wide meaning, Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30.</b></p><p><b><u>Dramatic work</u>.—A dance performance would come within the purview of “dramatic work” and not “literary work”, Academy of General Education v. B. Malini Mallya, (2009) 4 SCC 256 : (2009) 2 SCC (Civ) 122.</b></p><p><b><u>Literary work</u>.—The “Literary works” referred to in Section 13 are not confined to works of literature in the commonly understood sense, but must be taken to include all works expressed in writing, whether they have any literary merit or not. The word “original” in Section 13 does not imply any originality of ideas but merely means that the work in question should not be copied from some other work but should originate in the author, being the product of his skill and labour, Agarwala Publishing House v. Board of H.S. & I. Education, U.P., 1966 All LJ 550.</b></p><p><u style=\"font-weight: bolder; font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Literary work</u><span style=\"font-weight: bolder; font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\"> </span><b>A compilation derived from a common source falls within ambit of literary work, Shyam Lal Paharia v. Gaya Prasad Gupta, AIR 1971 All 192.</b></p><p><span style=\"font-weight: bolder; font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\"><u>Original Literary Work</u> - </span><b>Letter written by manufacturers to a trade customer, offering their goods at a low price if the customer agrees to take such goods exclusively from them, is an “original literary work” and thus entitled to copyright protection, British Oxygen Company Limited v. Liquid Air Limited, (1925) 1 Ch 383.</b></p><p><b><u>Headlines</u>, being literary work, are capable of enjoying copyright protection independently of the article to which they are related, Newspaper Licensing Agency Ltd. v. Meltwater Holding BV (CA), 2012 Bus LR 53.</b></p><p><b>Joint authorship.—In order to constitute a joint authorship of a literary work, it must be the result of a preconcerted joint design. Mere alterations, addition, or improvements by another person, whether with or without the sanction of the author, will not entitle such other person to claim to be “joint author” of the work, Levy v. Rutley, (LR) 6 CP 523.</b></p><p><b><u>Civil Courts\' jurisdiction</u>.—Act prescribes a machinery for the enforcement of Rights of the broadcasters created under Section 31(1)(b) Civil court\'s jurisdiction to grant any declaration or injunction, subject to the statutory determination is barred, Music Choice India (P) Ltd. v. Phonographic Performance Ltd., (2009) 2 Mah LJ 651.</b></p><p><b><u>Powers of Copyright Board</u>.—Incidental and ancillary powers of Copyright Board could at best be said to exist in order to preserve the status quo, but not to alter the same, Super Cassettes Industries Ltd. v. Music Broadcast (P) Ltd., (2012) 5 SCC 488 : (2012) 3 SCC (Civ) 1.</b></p><p><b><u>Copyright protection</u>.—Copyright in India is a statutory right and it has to satisfy statutory conditions. Protection is available only if claimed work is a literary work. Title comprising of a few words generally has not been considered as literary work. Title expressed on whole page with some expressive features, is protectable. Alternative remedy, if any, available where copyright protection cannot be availed. Title might be protected if proprietary right can be established in it as a registered mark or by way of goodwill, Krishika Lulla v. Shyam Vithalrao Devkatta, (2016) 2 SCC 521.</b></p><p><b>“<u>Original</u>”.—The word ‘original’ does not in this connection mean that the work must be the expression or original or inventive thought. Copyright Acts are not concerned with the origin of ideas, but with the expression of thought; and in the case of ‘literary work’ with the expression of thought in print or writing. The originality which is required relates to the expression of the thought; but the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work—that it should originate from the author, University of London Press Ltd. v. University Tutorial Press Ltd., (1916) 2 Ch 601; Macmillan & Co. Ltd. v. K. and J. Cooper, (1923-24) 51 IA 109 : AIR 1924 PC 75, 85.</b></p><p><b>In modern complex society provisions have to be made for protecting every man\'s copyright, whether big or small, whether involving a high degree of originality, as in a new poem or picture, or only originality at the vanishing point as in a law report, Govindan v. Gopalakrishna, AIR 1955 Mad 391.</b></p><p><b>Idea.—An idea is not protected by copyright, it becomes Copyright work only when it is given embodiment in tangible form, Zee Telefilms Ltd. v. Sundial Communications (P) Ltd., (2003) 3 Mah LJ 695.</b></p><p><b>An idea cannot be copyrighted, only the expression of that idea can be copyrighted. This case presents a three-step test, Abstraction-Filtration-Comparison, to determine whether substantial similarity is met when proving copyright infringement for non-literal elements of software. In Abstraction the court breaks up the program into different levels, from very general to very specific e.g. main purpose, program structure, modules, algorithms, data structures, source code. In Filtration, the court decides what components are absolutely essential to fulfilling the abstract function of the program at the various levels. Also filter out everything that is dictated by efficiency, external factors, or in the public domain. In Comparison, the court looks at the components of the program which are not absolutely essential to fulfilling the abstract function of the program to see if they are similar., Computer Associated International Inc v. Altai Inc., 982 F 2d 693 (2d Cir 1992). See also Goodyear Tire & Rubber Co. v. Silverstone Tire & Rubber Co. Banking and Finance, [1994] 1 CLJ 509 (Malaysia).</b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Computer software.—Computer software is a literary work, Federal Computer Devices Sdn.. Bhd. v. Evic Avg Jee Hai, [1991] 4 CLJ Rep 511 (Singapore).</b></p><p><b>Selections.—Where the plaintiff\'s selection of poems was borrowed by the defendants, it was held that the defendants\' book had infringed the copyright of the plaintiff. The true principle in all these cases is, that the defendant is not at liberty to use or avail himself of the labour which the plaintiff has been at for the purpose of producing his work, that is, in fact, merely to take away the result of another man\'s labour, or, in other words, his property, Macmillan v. Suresh Chander Deb, ILR 17 Cal 952.</b></p><p><b>Judgments.—The principle where there is common source the person relying on it must prove that he actually went to the common source from where he borrowed the material, employing his own skill, labour and brain and he did not copy, would not apply to the judgments of the courts because there is no copyright in the judgments of the court, unless so made by the court itself.</b></p><p><b>It is made clear that this decision would be confined to the judgments of the courts which are in the public domain as by virtue of Section 52 of the Act there is no copyright in the original text of the judgments,  </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Copyright in Supreme Court Cases (SCC).—Although for establishing a copyright, the creativity standard applies is not that something must be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required. It does require a minimal degree of creativity. Arrangement of the facts or data or the case law is already included in the judgment of the Court. Therefore, creativity of SCC would only be an addition of certain facts or material already published, case law published in another law report and its own arrangement and presentation of the judgment of the Court in its own style to make it more user-friendly. The selection and arrangement can be viewed as typical and at best the result of the labour, skill and investment of capital lacking even minimal creativity. It does not as a whole display sufficient originality so as to amount to an original work of the author. To support copyright, there must be some substantive variation and not merely a trivial variation, not the variation of the type where limited/unique ways of expression are available and an author selects one of them which can be said to be a garden variety. Novelty or invention or innovative idea is not the requirement for protection of copyright but it does require minimal degree of creativity. The aforesaid inputs put by the appellants in the copy-edited judgments do not touch the standard of creativity required for copyright </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">However, the inputs put in the original text by the appellants in (i) segregating the existing paragraphs in the original text by breaking them into separate paragraphs or clubbing together separate paragraphs in the original judgment; (ii) adding internal paragraph numbering within a judgment after providing uniform paragraph numbering to the multiple judgments; and (iii) indicating in the judgment the Judges who have dissented or concurred by introducing the phrases like “concurring”, “partly concurring”, “partly dissenting”, “dissenting”, “supplementing”, “majority expressing no opinion”, etc., have to be viewed in a different light. The task of paragraph numbering and internal referencing requires skill and judgment in great measure. The editor who inserts para numbering must know how legal argumentation and legal discourse is conducted and how a judgment of a court of law must read. Often legal arguments or conclusions are either clubbed into one paragraph in the original judgment or parts of the same argument are given in separate paragraphs. It requires judgment and the capacity for discernment for determining whether to carve out a separate paragraph from an existing paragraph in the original judgment to club together separate paragraphs in the original judgment of the Court. Setting of paragraphs by the appellants of their own in the judgment entailed the exercise of the brain work, reading and understanding of subject of disputes, different issues involved, statutory provisions applicable and interpretation of the same and then dividing them in different paragraphs so that chain of thoughts and process of statement of facts and the application of law relevant to the topic discussed is not disturbed, would require full understanding of the entire subject of the judgment. Making paragraphs in a judgment could not be called a mechanical process. It requires careful consideration, discernment and choice and thus it can be called as a work of an author. Creation of paragraphs would obviously require extensive reading, careful study of subject and the exercise of judgment to make paragraph which has dealt with particular aspect of the case, and separating intermixing of a different subject. Creation of paragraphs by separating them from the passage would require knowledge, sound judgment and legal skill. This exercise and creation thereof has a flavour of minimum amount of creativity. </b><span style=\"font-weight: bolder; font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1.</span></p><p><b>The said principle would also apply when the editor has put an input whereby different Judges\' opinions have been shown to have been dissenting or partly dissenting or concurring, etc. It also requires reading of the whole judgment and understanding the questions involved and thereafter finding out whether the Judges have disagreed or have the dissenting opinion or they are partially disagreeing and partially agreeing to the view on a particular law point or even on facts. In these inputs put in by the appellants in the judgments reported in SCC, the appellants have a copyright and nobody is permitted to utilise the same, Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1.</b></p><p><b>Question papers.—Question papers set at examination are original literary works though the paper-setter may have copied questions from textbooks, Jagdish Prasad Gupta v. Parmeshwar Prasad Singh, AIR 1966 Pat 33.</b></p><p><b>Examination papers are “original literary work” and, thus, subject to copyright, University of London Press Limited v. University Tutorial Press Limited, (1916) 2 Ch 601.</b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Copyright is normally confined to the work and not to the title of the work, T. Pandiyan Arivali v. Kamal Hassan, (1995) 2 LW 347 (Mad) (DB).</b></p><p><b>Advertisement.—There is no copyright in an advertisement. If you copy the advertisement of another you do him no wrong unless in so doing you lead the public to believe that you sell the articles of the person whose advertisement you copy, Cobbett v. Woodward, (LR) 14 Eq 407.</b></p><p><b>Easily accessible material.—Despite the fact that the material used is easily accessible to all, the information, if, presented in a distinct form would attract copyright protection, Asia Pacific Publishing Pte Ltd. v. Pioneers & Leaders (Publishers) Pte Ltd., (2011) 4 SLR 381 : 2011 SGCA 37.</b></p><p><b>Series of graphical frames.—A series of graphical frames providing an illusion of movement is not a single graphic work in itself and thus is not capable of protection, Nova Productions Ltd. v. Mazooma Games Ltd. and others, 2007 Bus LR 1032.</b></p><p><b>Persona of celebrities.—Television and other media create marketable celebrity identity value. Considerable energy and ingenuity are expended by those who have achieved celebrity value to exploit it for profit. The law protects the celebrity\'s sole right to exploit this value whether the celebrity has achieved her fame out of rare ability, dumb luck, or a combination thereof, White v. Samsung Electronics America Inc., 989 F 2d 1512 (9th Cir 1993).</b></p><p><b>Copyright.—“Copyright” is covered by Article 300-A of the Constitution, Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30.</b></p><p><b>Limited rights of licensee.—Rights of a licensee are not the same as those of the owner. Rights of licensee under Section 14 can be limited or circumscribed by the owner as per his/her desire in the manner provided. Owner, while exercising the right to license demarcates the rights and imposes conditions and limitations by way of a period-wise license or territory-wise license, exclusive or non-exclusive etc., John Wiley & Sons Inc. v. Prabhat Chander Kumar Jain, (2010) 170 DLT 701 (Del).</b></p><p><b>Determination of Infringement of copyright.—Infringement of copyright is to be seen from the perspective of rights of the owner and not of the licensee. Rights of the owner may include the rights of the licensee, thus, infringement of rights has to be measured from the broader rights of the owner and not from the limited rights of the licensee. However, the definition of owner under Section 54(a), includes the exclusive licensee, for the purposes of suing for infringement of copyright through the exclusive licensee, John Wiley & Sons Inc. v. Prabhat Chander Kumar Jain, (2010) 170 DLT 701 (Del).</b></p><p><b>Real owner of copyright.—Copyright remains with originator of the intellectual property, Tata Consultancy Services v. State of A.P., (2005) 1 SCC 308.</b></p><p><b>The person whose name is indicated on an anonymous work as the publisher thereof is the owner of the copyright. The hypothesis behind this is that the publisher, in such cases, is not the real owner of the copyright and is raised merely for the purpose of giving such publisher a “locus standi” in proceedings for infringement, Hogg v. Toye and Company Ltd., 1935 Ch 497 : 51 TLR 301 CA.</b></p><p><b>The default rule is that the artist who creates a commissioned work retains copyright ownership of the work (because the artist is an independent contractor and not an employee producing a work made for hire.) However, this is only a presumption which can be modified by contract, Community for Creative Non-Violence v. Reid, 490 US 730 (1989).</b></p><p><b>Existing or future right of music composer is capable of assignment.—If the composer composes music for a film and is incorporated in the sound track, the producer alone has copyright and the composer has none. Composer\'s right under Section 13(4) is only otherwise than as part of the film, Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Assn., (1977) 2 SCC 820.</b></p><p><b>No composer can claim copyright on musical work to particular song by providing proper tune, S.R. Jayalakshmi v. Meta Musicals, 2001 KHC 267 : (2001) 1 KLT SN 47.</b></p><p><b>First owner of the copyright of lyrics and musical works shall be the authors unless it is shown that such work was made in course of author\'s employment under a contract of service or apprenticeship with his employer and there is no agreement to the contrary as regards retention of copyright.</b></p><p><b>Assignment of copyright.—If an author assigns the right to publish his work to another, it is the latter who thenceforward is to be treated for all purposes as the “Owner of the Copyright” as respects the right to publish, even though the author may still continue to be the “Owner of Copyright” as respects all the other rights, except the right to publish. And as respects the “right to publish” so assigned, even the author, though still owning all the other rights may be held guilty for infringement for publication without the latter\'s consent, Jogendra Nath Sen v. State, (1991) 2 CHN 141.</b></p><p><b>The assignment of copyright should clearly indicate the rights proposed to be assigned, Raj Video Vision v. Sun T.V., (2001) 2 LW 232 (Mad).</b></p><p><b>Binding nature.—A contract by an infant, whereby he assigns the exclusive right of publishing and selling of his copyright work, is of binding nature for it is analogous to a contract of service in that it would enable him to earn his living and support his family, Chaplin v. Leslie Frewin (Publishers) Ltd., 1966 Ch 71 : (1966) 2 WLR 40.</b></p><p><b>Distinction between assignment of copyright and licence to use.—In the assignment, normally, ownership of the copyright of the work is transferred, but in the case of licence, another person is allowed to use the work by the author, International Confederation of Societies of Authors and Composers (ICSAC) v. Aditya Pandey, (2017) 11 SCC 437.</b></p><p><b>Copyrights of authors/composers of musical works.—Additional/further licence from lyricist and musician for playing the song in public was not needed on the part of event management company/event organiser as per the law as it existed at the time of institution of suit (i.e. year 2006). However, w.e.f. 21-6-2012, by virtue of insertion of Section 19(10) of Copyright Act, assignment of copyright in a work to make sound recording which does not form part of any cinematograph film, would not affect the right of author of work to claim an equal share of royalties or/and consideration payable for utilisation of such work in any form, International Confederation of Societies of Authors and Composers (ICSAC) v. Aditya Pandey, (2017) 11 SCC 437.</b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Mode or form of assignment of copyright.—No particular form has been prescribed for assignment. Letter in writing and signed by author amounts to assignment, Rupendra Kashyap v. Jiwan Publishing House, (1996) 38 DRJ 81.</b></p><p><b>Purpose.—Purpose of assignment is to enable assignee to exploit rights that owner of copyright has in literary, dramatic or musical work, etc. Assignment serves two purposes, firstly, assignee gets right of exploitation for specified period in specified territory, secondly, assignee gets right to receive royalty, agreement, which employs language of assignment but which in fact tends to secure due repayment of loan owed by assignor to assignee and which prevents others from exploiting copyrights of owner is not assignment, Sree Gokulam Chit & Finance Co. (P) Ltd. v. Johny Sagariga Cinema Square, (2011) 3 CTC 747 (Mad).</b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Valid assignment.—For valid assignment of the copyright, period and territorial area have to be specified. As area specification and consideration are absent, it cannot be held that plaintiff has acquired satellite rights for distribution, exhibition, exploitation in tamil picture “Bhuvana Oru Kelvikuri”, “Vattathukkul Sathuram”. In 1979 satellite telecasting was not in existence and there was no assigning of satellite rights. Original negative rights in 1979, did not acquire video rights or satellite rights. Hence, plaintiff has not acquired any rights in subsequent assignment, S.M. Ashokan v. Raj Television Net Work Ltd., (2016) 5 LW 881.</b></p><p><b>Assignment of copyright.—Copyright is beneficial interest in movable property but the owner of the right has actual or constructive possession of the same and therefore, copyright hardly comes within the purview of “actionable claim”, as defined by the Transfer of Property Act, Savitri Devi v. Dwarka Prasad Bhatya, AIR 1939 All 305, 308.</b></p><p><b>Telecasting rights.—It is not necessary to go into the nature of the rights conferred by Section 37 of the Copyright Act, 1957, namely, whether the live telecast of a cricket match amounts to production of cinematograph film conferring on the author and its assignee the same inviolable rights that the provisions of the Copyright Act confer on a copyright holder. Rather in the facts of the present case and to answer the issue arising therein it will suffice to acknowledge the existence of a right in the content rights owner/holder in the live feed of a cricket match or other sporting events of national importance, Union of India v. BCCI, (2018) 11 SCC 700.</b></p><p><b>Basis of Copyright Law.—The fundamental idea of violation of copyright or imitation is the violation of the eighth commandment:“Thou shalt not steal,” which makes the moral basis of the protective provisions of the Copyright Act. It is obvious that when a writer or a dramatist produces a drama, it is the result of his great labour, energy, time and ability and if any other person is allowed to appropriate the labours of the copyright work, his act amounts to theft by depriving the original owner of the copyright of the product of his labour, R.G. Anand v. Delux Films, (1978) 4 SCC 118, 127.</b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Test.—There is no better way of detecting the piracy in an alleged infringing work than by making a careful examination of it to see whether any of the deviation and mistakes which artistic licence permits in the original have been reproduced in the alleged infringing copy, Lallubhai Motiram v. Laxmishankar Ambalal, AIR 1945 Bom 51.</b></p><p><b>An infringement of copyright can arise even though the essential features of a play correspond to a part only of the plot of a film. Such a situation can arise where changes are effected while planning the film so that certain immaterial features in the film differ from what is seen in the stage play, R.G. Anand v. Delux Films, (1978) 4 SCC 118.</b></p><p><b>A claim for conversion does not lie for the use of a plaintiff\'s bodily tissue in medical research without his knowledge or consent. Under the duty to obtain informed consent, a doctor must disclose his intent in using a patient for research and economic gain, Moore v. Regents of the University of California, 51 Cal 3d 120 : 271 Cal Rptr 146 : 793 P2d 479, cert denied 499 US 936 (1991).</b></p><p><b>Infringement of copyright in copy-edited version of judgments published in Supreme Court Cases (SCC).—Copyrights in copyedited versions of judgments published in Supreme Court Cases (SCC) as recognized and upheld in Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1, affirmed by the directions to appellant-defendants to follow the law laid down in Modak case while publishing, selling and distributing the raw judgments of the Supreme Court with their own inputs, Relx India (P) Ltd. (Formerly Reed Elsevier India (P) Ltd.) v. Eastern Book Co., (2017) 1 SCC 1.</b></p><p><b>Infringement of copyright.—Plea of honest and concurrent user under Section 12(3) of Trade and Merchandise Marks Act, 1958 not a valid defence, Power Control Appliances v. Sumeet Machines (P) Ltd., (1994) 2 SCC 448.</b></p><p><b>Section 51 categorizes the pre-requisites of infringement i.e. (a) without a licence granted by owner of the copyright, or (b) without the licence granted by the registrar of copyright, or (c) in contravention of the conditions of a licence so granted, or (d) any conditions imposed by a competent authority under the Act said situations are disjunctive and not conjunctive, such that, doing of the act even in one situation would be equally an infringement as in another one, John Wiley & Sons Inc. v. Prabhat Chander Kumar Jain, (2010) 170 DLT 701 (Del).</b></p><p><b>A combined reading of Sections 51 and 52(1)(a) of Copyright Act shows that furnishing of information by examining body, in response to a query under RTI Act cannot be termed as infringement of copyright, ICAI v. Shaunak H. Satya, (2011) 8 SCC 781 : (2011) 4 SCC (Civ) 504.</b></p><p><b>Although lending of records and selling of blank tapes enables and assists borrowers to tape records, knowledge of the likelihood that borrowers would do so does not amount to “authorizing” infringement of copyright, C.B.S. Inc. v. Ames Records & Tapes Ltd., 1982 Ch 91.</b></p><p><b>Play performed by a dramatic society at a monthly meeting of an institute without the consent of the owner of the copyright constitutes a performance “in public” and thus is an infringement of a copyright, Jennings v. Stephens, 1936 Ch 469.</b></p><p><b>One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties, Metro-Goldwyn-Mayer Studios Inc. et al v. Grokster Ltd., et al, 545 US 913 (2005).</b></p><p><b>Abridgement and translations can both infringe copyright.—70 Cal WN 1130.</b></p><p><b>The principle where there is common source the person relying on it must prove that he actually went to the common source from where he borrowed the material, employing his own skill, labour and brain and he did not copy, would not apply to the judgments of the courts because there is no copyright in the judgments of the court, unless so made by the court itself.</b></p><p><b>It is made clear that this decision would be confined to the judgments of the courts which are in the public domain as by virtue of Section 52 of the Act there is no copyright in the original text of the judgments.</b></p><p><b>Although for establishing a copyright, the creativity standard applies is not that something must be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required. It does require a minimal degree of creativity. Arrangement of the facts or data or the case law is already included in the judgment of the Court. Therefore, creativity of SCC would only be addition of certain facts or material already published, case law published in another law report and its own arrangement and presentation of the judgment of the Court in its own style to make it more user-friendly. The selection and arrangement can be viewed as typical and at best the result of the labour, skill and investment of capital lacking even minimal creativity. It does not as a whole display sufficient originality so as to amount to an original work of the author. To support copyright, there must be some substantive variation and not merely a trivial variation, not the variation of the type where limited/unique ways of expression are available and an author selects one of them which can be said to be a garden variety. Novelty or invention or innovative idea is not the requirement for protection of copyright but it does require minimal degree of creativity. The aforesaid inputs put by the appellants in the copy-edited judgments do not touch the standard of creativity required for copyright.</b></p><p><b>However, the inputs put in the original text by the appellants in (i) segregating the existing paragraphs in the original text by breaking them into separate paragraphs or clubbing together separate paragraphs in the original judgment; (ii) adding internal paragraph numbering within a judgment after providing uniform paragraph numbering to the multiple judgments; and (iii) indicating in the judgment the Judges who have dissented or concurred by introducing the phrases like “concurring”, “partly concurring”, “partly dissenting”, “dissenting”, “supplementing”, “majority expressing no opinion”, etc., have to be viewed in a different light. The task of paragraph numbering and internal referencing requires skill and judgment in great measure. The editor who inserts para numbering must know how legal argumentation and legal discourse is conducted and how a judgment of a court of law must read. Often legal arguments or conclusions are either clubbed into one paragraph in the original judgment or parts of the same argument are given in separate paragraphs. It requires judgment and the capacity for discernment for determining whether to carve out a separate paragraph from an existing paragraph in the original judgment to club together separate paragraphs in the original judgment of the Court. Setting of paragraphs by the appellants of their own in the judgment entailed the exercise of the brain work, reading and understanding of subject of disputes, different issues involved, statutory provisions applicable and interpretation of the same and then dividing them in different paragraphs so that chain of thoughts and process of statement of facts and the application of law relevant to the topic discussed is not disturbed, would require full understanding of the entire subject of the judgment. Making paragraphs in a judgment could not be called a mechanical process. It requires careful consideration, discernment and choice and thus it can be called as a work of an author. Creation of paragraphs would obviously require extensive reading, careful study of subject and the exercise of judgment to make paragraph which has dealt with particular aspect of the case, and separating intermixing of a different subject. Creation of paragraphs by separating them from the passage would require knowledge, sound judgment and legal skill. This exercise and creation thereof has a flavour of minimum amount of creativity.</b></p><p><b>The said principle would also apply when the editor has put an input whereby different Judges\' opinions have been shown to have been dissenting or partly dissenting or concurring, etc. It also requires reading of the whole judgment and understanding the questions involved and thereafter finding out whether the Judges have disagreed or have the dissenting opinion or they are partially disagreeing and partially agreeing to the view on a particular law point or even on facts. In these inputs put in by the appellants in the judgments reported in SCC, the appellants have a copyright and nobody is permitted to utilise the same, Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1.</b></p><p><b>The plaintiffs compiled their book with considerable labour from various sources and digested and arranged the matter taken by them from other authors. The defendant instead of taking pains of searching into all common sources and obtaining his subject-matter from them availed himself of the labour of the plaintiffs and adopted their arrangement and subject-matter. Such a use by defendant of the plaintiffs\' book cannot be regarded as legitimate, Gopal Das v. Jagannath Prasad, AIR 1938 All 266.</b></p><p><b>In law reports containing only approved reports of cases decided by courts, there is copyright. A man is not allowed to appropriate for himself the arrangement, sequence, order, idiom, etc., employed by another, using his brains, skill and labour, V. Govindan v. E.M. Gopalkrishna Kone, AIR 1955 Mad 391</b></p><p><b>Grant of injunction.—Where the balance of convenience and inconvenience on both sides is equal, the defendant who has been proved to have prima facie infringed the copyright of the plaintiff\'s work must suffer inconvenience by grant of injunction rather than the plaintiff by not granting it, N.T. Raghunathan v. All India Reporter, AIR 1971 Bom 48.</b></p><p><b>Temporary injunction may be granted even if references pirated by the defendant are insignificant compared to the total volume of the defendant\'s work, N.T. Raghunathan v. All India Reporter, AIR 1971 Bom 48.</b></p><p><b>Similar mistakes.—Where the mistakes committed by the plaintiff in certain calculations in his book were found in the defendant\'s book in similar calculations it was held that the defendant had copied the calculations from plaintiff\'s book, Shyam Lal Paharia v. Gaya Prasad Gupta, AIR 1971 All 192.</b></p><p><b>Common mistakes show copying from common source or each other, Prem Prakash Kaluniya v. Punjab University, (1973) 3 SCC 424.</b></p><p><b>Infringement of copyright.—Activity of Cable T.V. operators of receiving satellite signals on dish antenna and thereafter transmitting it by cable to viewers for fees or otherwise will not constitute infringement of video copyrights, Video Master v. Nishi Productions, (1998) 2 Mah LJ 81.</b></p><p><b>Where there is an infringement of trade mark or copyright, an injunction normally must follow. Mere delay in bringing the action is not sufficient to defeat grant of injunction in such cases. Further held, the grant of injunction also becomes necessary if it prima facie appears that the adoption of the mark itself was dishonest, Midas Hygiene Industries (P) Ltd. v. Sudhir Bhatia, (2004) 3 SCC 90.</b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Remedies available.—Words “all such remedies….. otherwise as are or may be conferred by law”, need to be read ejusdem generis, and cannot be read as providing for a remedy founded on a separate and independent cause of action such as passing off or a remedy founded on rights and liabilities of a party under a different statute, Dabur India Ltd. v. K.R. Industries, (2008) 10 SCC 595.</b></p><p><b>Injunctions.—The power of the Court to grant a temporary injunction is not limited by the absence of any finding on the question of jurisdiction which has been raised in the case.</b></p><p><b>The precise rule of law contained in clause (f), Section 56, Specific Relief Act, cannot, interfere in any way with the discretion of the Court in regard to a temporary injunction the grant of which should, therefore, be governed by other principles, Kartar Singh Gayani v. Ladha Singh, AIR 1931 Lah 624, 625.</b></p><p><b>Cause of action to file suit.—The cause of action to a plaintiff to file a suit accrues when there is a clear and unequivocal threat to infringe a right. The cause of action for filing suit for declaration and injunction qua infringement of copyright in scheduled films which had been assigned earlier by plaintiff arise, after the lapse of assignment period, Zee Telefilms Ltd. v. Suresh Productions, (2020) 5 SCC 353.</b></p><p><br></p>', '75e15eb4e41bc173720bae8c16382775.PNG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-04', 1, '', '', '2021-07-05 02:34:16', '2021-07-05 03:04:16'),
(870, 'ehPpXhozo6fbDCsekFJEBGjTf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Election. Tenure of the elected representatives can be cut short by operation of law. However, the tenure can NOT be extended either by the Election Commission or by the Government. Karnataka High Court. ', '<p><b>Laxman Lakappa Ningannavar vs The State of Karnataka, and others.</b></p><p><b>Writ Appeal 100111 of 2021 decided on 29 June 2021.</b></p><p><b><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Judgment Link: </span><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/391974/1/WA100119-21-29-06-2021.pdf\" target=\"_blank\" style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/391974/1/WA100119-21-29-06-2021.pdf</a></b></p><div><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\"><b>All these Intra–Court Appeals seek to lay a challenge to the orders of the learned Single Judge, whereby in substance the prayer for a direction to the State Government and the State Election Commission, to elongate the tenure of elected Members of the local bodies by setting aside the appointment of Administrators, has been negatived.</b></span></div><p><b>3(a) The tenure of elected local bodies like the panchayat & municipality, regardless of their varying nomenclatures is constitutionally fixed as being ‘five years from the date appointed for its first meeting and no longer’ vide the Constitution (Seventy Third Amendment) Act, 1992 w.e.f. 24.04.1993 & the Constitution (Seventy Fourth</b></p><p><b>Amendment) Act 1992 w.e.f. 01.06.1993; acceding to the prayer of the writ petitioners and thereby directing the respondent-State & the Election Commission to extend the tenure of these bodies militates against the constitutional mandate; it has been a well settled position of constitutional jurisprudence that no writ can issue to do what the law does not permit; this inarticulate premise has animated the impugned orders, absence of elaborate discussion therein, not withstanding.</b></p><p><b>3(b) The vehement submission of appellant-writ petitioners that in the absence of an enabling provision in the Karnataka Municipalities Act, 1964, if Government can appoint the Administrators when statutorily prescribed prerequisites are lacking, it is open to the Government to issue appropriate orders for elongating the tenure of the elected body or its office bearers, cannot be countenanced; the  observations  of  the  Apex  Court  in Kishansing Tomar <span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">V. Municipal Corporation of the City of  Ahamadabad  (2006) 8 SCC 352 do not lend support to such a wide proposition; our constitution envisages a limited government that can do what is permitted or sanctioned by </span><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">law either expressly or by necessary implication; contention advanced on behalf of the applicants offends this well established norm.</span></b></p><p><b>3(c) In Kishansingh Tomar, supra the Apex Court having discussed the object of Seventy Fourth Amendment to the Constitution expressed its anguish against delaying and postponing of elections to the local bodies in many States; at paragraph 14, it observed that it is incumbent upon the Election Commission and other authorities to carry out the mandate of the Constitution that the duration of the municipality  having been fixed as five year; the new municipality has t be constituted in time by holding periodical elections before the expiry of this duration; at paragraph 21, the Court only recognized  certain exceptional circumstances that may justify delayed elections beyond the period of five years mandatorily fixed under Article 243-U; the last four lines in the paragraph being pertinent are reproduced below:</b><br></p><p><b>“… It is only when the municipality is dissolved for any other reason and the remainder of the period for which the dissolved municipality would have continued is less than six months, it shall not be necessary to hold any elections for constituting the municipality for such period.”</b></p><p><b>3(d)<span style=\"white-space:pre\">	</span>More than a century ago, Lord Halsbury in the celebrated case of Quinn V. Leathem, 1901 AC 495 had emphasized that a decision is an authority for the proposition that it actually lays down, and not for all that which logically follows from what has been so laid down; there is nothing in the decision cited at the Bar even remotely supportive of the contention of the writ petitioners that the Government and the State Election Commission have power to extend the tenure of elected local bodies of the kind in any circumstances whatsoever; the text & context of Seventy Third & Seventy Fourth amendments to the Constitution do not leave even a shadow of such power.</b></p><p><b>3(e)<span style=\"white-space:pre\">	</span>It hardly needs to be stated that the voters/electors elect their representatives to the local bodies for the tenure prescribed by the Constitution and the statute under which they are constituted; these representatives have the popular mandate for the specified tenure and not beyond that; this tenure sometimes may be cut short by operation of law or by an act authorized by law; that in such a gratuitous situation the popular mandate is shortened is <span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">true; however, the reverse logic that if the popular mandate can be cut short, it can be elongated too, in extraordinary situation like the COVID-19 Pandemic is difficult to agree with; in the militant absence of statutory enablement, if the Government & the Election Commission accede to the request of the writ petitioners, that amounts to they donning the mantle of voters/electors; this offends the rudiments of democracy, which is a Basic Feature of the Constitution vide Kesavananda Bharti (1973)4 SCC 225.</span></b></p><p><b>In the above circumstances, these appeals being devoid of merits are liable to be and accordingly rejected.</b></p><p><br></p>', '43f0e84176053c63bbfe39964ce6fd26.jpeg', '1f6232f61714d871f121e72b13622e0f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-29', 1, '', '', '2021-07-05 23:05:47', '2021-07-06 02:07:33');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(871, 'aIFtiKs5cg9Baqi5LiX46HTD1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act. Insurance Company is liable to pay compensation under personal accident claim benefit even when the borrower of the vehicle met with personal accident. Karnataka High Court. ', '<p><b>Oriental Insurance Co Ltd vs L. Radha and others.&nbsp;</b></p><p><b>Miscellaneous First Appeal 4946 of 2011 decided on 28 June 2021. </b></p><p><b>Justice H.P. Sandesh</b></p><p><b>This appeal is filed by the Insurance Company challenging the judgment and award dated 26.06.2010 passed in M.V.C.No.476/2009 on the file of the Fast Track Court-II and Additional MACT, Mysuru (‘the Tribunal’ for short) questioning the awarding of compensation of Rs.50,000/- under no fault liability.</b></p><p><b>8. The appellant Insurance Company in this appeal has raised the contention that the Tribunal has committed an error in awarding compensation under the head no fault liability even though the claimants are not entitled for compensation under&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">the head no fault liability. The Tribunal was required to have noticed that for one’s own negligence, a claim petition either under Section 163-A or under Section 166 of the MV Act is not maintainable. The Tribunal was required to have noticed that a person who drives the vehicle would step into the shoes of the insured and the risk of the owner is not required to be covered and the risk of a person who steps into the shoes of the owner is also not required to be covered as held by the Apex Court in the case of NINGAMMA AND ANOTHER v. UNITED INDIA INSURANCE CO. LTD. reported in 2009 ACJ 2020 SC.</span></b></p><p><b><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">13.&nbsp;</span><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Having heard the arguments of the learned counsel for the appellant and on perusal of the records, the points that arise for the consideration of this Court are:</span></b></p><p><b>(i) Whether the Tribunal committed an error in awarding compensation under no fault liability invoking Section 140 of MV Act?</b></p><p><b>(ii) Whether the Insurance Company is liable to pay the compensation to the claimants when the personal accident claim benefit is insured with the insurer when the borrower of the&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">vehicle stepped into the shoes of the original owner?</span></b></p><p><b>17....Having read the provisions of Section 140 of the MV Act, it is clear that the owner of the vehicle or vehicles is liable to pay the compensation under Section 140 of MV Act. In the case on&nbsp; hand, in view of the judgment of the Apex Court in the case of Ningamma (supra), the deceased steps into the shoes of the owner and for all practical purposes. When such being the case, Section 140 of the MV Act cannot be invoked. If the claimants are third party, then they are entitled for compensation under Section 140 for no fault liability. Hence, the claimants are not entitled for compensation under Section 140 of the MV Act. Accordingly, I answer point No.(i) as affirmative.</b></p><p><b>18. The other contention of the learned counsel for the appellant relying upon the judgment of Punjab and Haryana High Court is that the borrower is not entitled for compensation under the head personal accident claim and the same is exclusively the right of the owner. The said contention cannot be accepted. The Insurance Company cannot blow hot and cold; in one breath the borrower steps into the shoes of the insured and when there was a contract of indemnity between the insured and the Insurance Company for payment of personal accident claim under special contract and once the borrower steps into the shoes of the owner for the purpose of claiming the compensation under Section 166 and 163-A of the MV Act and not entitled for compensation and automatically he steps into the shoes of the insured and in view of the contract of indemnity between the insured and the Insurance Company under the special contract, I am of the opinion that the claimants are also entitled for compensation under PA claim as held by the Apex Court that the borrower steps into the shoes of the insured. There cannot be two yardstick as contended by the counsel appearing for the appellant that he steps into the shoes of the owner and for the purpose of making payment under PA claim cannot contend that borrower cannot step into the shoes of owner. The observation of the Punjab and Haryana judgment that he became third party cannot be accepted, as the Apex Court held that he steps into the shoes of the owner. It cannot be interpreted as to the convenience of the insurance company. For all the purpose, he steps into the shoes of the owner....The claimants’ are entitled to PA claim and the Company has to pay the same as held by the Apex Court in the case of RAMKHILADI AND ANOTHER&nbsp; v. UNITED&nbsp; INDIA INSURANCE&nbsp; COMPANY&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">reported in (2020) 2 SCC 550 and also the judgment of the Apex Court judgment in the case of NATIONAL INSURANCE COMPANY LIMITED V. ASHALATA BHOWMIK AND&nbsp; OTHERS&nbsp;</span><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">reported in AIR 2018 SC 4133. The claimants need not approach separately to Insurance Company and the Insurance Company is bound to pay the compensation under PA claim as there is separate special contract. Hence, I answer point No.(ii) as affirmative.</span></b></p><p><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\"><b>The judgment and award of the Tribunal is modified exonerating the liability of the Insurance Company to pay the compensation under Section 140 of the MV Act. However,&nbsp; the Insurance Company is liable to pay the compensation of Rs.1,00,000/- under PA claim to the claimants under special contract treating the deceased stepped into the shoes of the insured.</b></span></p>', '5cd62812bcf4b81ae83a3f1c29f29fa9.JPG', '36ee121d0ab266c4a6b670a92e02275c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-08', 1, '', '', '2021-07-07 02:38:07', '2023-02-08 15:17:36'),
(2646, 'nUcTYItWnvlCfAthZByzwIu8o', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Common area in residential flat compound belongs to flat owners and not the builder. Madras High Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Abbotsbury Owners Association Vs The Member Secretary, Chennai Metropolitan Development Authority and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. 5765 of 2020 decided on 20 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice R. Subramanian and Justice K. Kumaresh Babu.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner, an Association of apartment owners in a project\r\ndeveloped by the 3\r\nrd respondent, has come up with this Writ Petition,\r\nseeking a Writ of Mandamus, directing the respondents to handover\r\npossession of the portion of the building consisting basement and ground\r\nfloor to the Association, on the ground that the Association is the rightful\r\nowner of the said portion of the building and land upon which it has been\r\nconstructed.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.The facts as disclosed in the pleadings in the Writ Petition are as\r\nfollows:-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The 3\r\nrd respondent, which is a promoter of residential apartments\r\nhad obtained a sanctioned plan for construction of about 77 flats residential\r\napartments in a piece of land abutting Sir C.P.Ramaswamy Road, Alwarpet,\r\nChennai – 18 in the year 2001. It appears that the 3\r\nrd respondent had\r\nproposed to put up a Software Technology Park with built up area of about\r\n2,00,000 Sq.ft in the said land in tandum with M/s.SRA Systems. It is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">claimed that an advance of Rs.20,00,000/- was also paid by the said SRA\r\nSystems. However, even before the necessary permission could be obtained,\r\nSRA Systems backed out of the contract. The 3\r\nrd respondent, however, sold\r\nthe residential apartments along with necessary undivided share in the land\r\nas per the planning permission dated 27.08.2001 to various allottees.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.It is claimed that by oversight, the total constructed area was\r\nshown as 2,00,000 Sq.ft instead of 1,30,000 Sq.ft as per the approved plan.\r\nWhile the process of execution of the sale deeds was on, a neighbour filed a\r\nWrit Petition in W.P.Nos.16477 & 16505 of 2001 seeking stoppage of\r\nconstruction. Around that time, 38 sale deeds were executed in respect of\r\nthe undivided share of the land. On 16.11.2001, this Court had disposed of\r\nthe said Writ Petitions with certain directions on the nature of the pile\r\nfoundation that is to be done for the purpose of erection of the entire\r\nstructure. This led to developor being forced to give up the plan to construct\r\nbasement floors.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17.Admittedly, the disputed portion of the building formed part of\r\nthe original planning permission and it was shown as a generator block,\r\nconstituting a portion of Non-FSI constructions. It was intented to be a\r\ncommon facility for the residents of the apartment. It is now claimed that\r\nthe residents had in the handing over agreements admitted that the disputed\r\nportion of the construction does not form part of the Non-FSI area.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22.In the case on hand, the allottee of Flat No.1A in Block-1 has\r\npurrchased a flat measuring an extent of 1,360 sq.ft. She has been conveyed\r\nan UDS of 47.44 Sq.ft, she is actually entitled to 70.95 sq.ft. The difference\r\nis about 23.51 sq.ft of land. It does not mean that she has not paid for this\r\n23.51 Sq.ft. of undivided share of the land. By increasing total construction\r\narea, the 3\r\nrd respondent had ensured that each of the flat owner gets a\r\nreduced UDS. This in our opinion, is a deliberate wrong doing on the part of\r\nthe 3\r\nrd respondent. The 3\r\nrd respondent cannot be heard to contend that the\r\nflat owners are not entitled to the UDS that would be allotable to them as per\r\nthe planning permission granted, since they have not paid for it. We find\r\nthat the said contention is an artificial illusion created by the Engineers\r\nworking for the 3\r\nrd respondent. We are therefore, unable to accept the said\r\nargument. Hence we record a finding that the flat owners would be entitled\r\nto the actual UDS as calculated by the 3\r\nrd respondent in the tabular column\r\nannexed by the 3\r\nrd respondent to the affidavit filed by the authorized <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">signatory of the 3\r\nrd respondent on 28.11.2022.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24.As we had already pointed out, the 3\r\nrd respondent is not\r\nnovoice, it is an experienced builder having constructed several apartments\r\nin the City. When it gives an undertaking to a Court stating that it would\r\nrestore the building to its original position and ensure that the building is\r\nused for Non-FSI purposes, it cannot go back and claim that it is entitled to\r\nuse it for another purpose or to seek permission of the authorities to use it\r\nfor other purposes. Fortunately, the authorities have not yielded to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">attempts made by the 2\r\nnd\r\nand 3\r\nrd respondents to have the Non-FSI area\r\nconverted into a commercial area.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>25.It is now claimed that the 2\r\nnd\r\nrespondent has been paid monies\r\nand he has been compensated. We therefore, find that the undertakings\r\ngiven by the 2\r\nnd\r\nand 3\r\nrd respondents are binding on them and they cannot\r\nclaim title to any portion of the land. The sale deed executed in favour of the\r\n2\r\nnd\r\nrespondent in respect of the undivided share in the land and the Non-FSI\r\nportion of the building is clearly invalid. We do not have the slightest\r\nhesitation in concluding that it is a void instrument.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">26.The 3\r\nrd respondent has filed an affidavit on 28.11.2022 stating\r\nthat it would arrange for execution of sale deeds for the remaining UDS,\r\nupon payment of consideration and the additional stamp duty. We do not\r\nthink that it is a great offer made by the 3\r\nrd respondent. Once the land is\r\nshown as a common area and common facility is developed, the land will\r\nbelong to the owners of such common facility. If there is a mistake in the\r\ncalculation of the UDS, it has got to be rectified by the builder. The builder </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cannot take advantage of the mistake and claim that the purchasers must be\r\nmade to pay for the unsold portion of the UDS. Though the Writ Petition is\r\nfor a direction to handover possession of the Non-FSI building, we do not\r\nthink that the entire matter will stand resolved by granting the mandamus as\r\nprayed for.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>27.In order to resolve the entire issue and put a quietus and to\r\nensure appropriate title passesto the purchasers of the flats, we direct the 3\r\nrd\r\nrespondent builder to ensure execution of rectification deeds in favour of\r\neach individual flat owners, rectifying the UDS as shown in the tabular\r\ncolumn filed by it along with the affidavit dated 28.11.2022. Any stamp\r\nduty payable on such rectification should be borne by the individual flat\r\nowners. Though they have paid the consideration for the land, they have not\r\nbeen vigilant enough in ensuring that they got the correct UDS. By reducing\r\nthe UDS the value of the land shown in the conveyance is also reduced,\r\nreducing the revenue payable to the Government.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">28.The Chennai Metropolitan Development Authority will </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">forthwith handover the vacant Non-FSI building to the flat owners\'\r\nassociation. The execution of the rectification deeds shall be completed\r\nwithin a period of three months from today. Though in the normal\r\ncircumstances, we would have imposed costs on the 2\r\nnd\r\nand 3\r\nrd respondents.\r\nWe desist from doing so, hoping that the 3\r\nrd respondent will see reason and\r\ncomply with our direction within the time stipulated by us without making\r\nany further attempts to litigate on this issue. This Writ Petition stands\r\ndisposed of as above.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b2ec00445082ba1df5f2da033a6b7d49.jpg', 'cd0229eb1afe6fef6d6ae614a0a17455.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-09', 1, '', '', '2023-02-08 15:27:33', '2023-02-09 12:27:43'),
(2687, 'EZ3xGcS9Vh85cYKQTSyle5AoX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act. After 1994 amendment, in case of goods vehicle, owner or his authorised representative are covered and entitled for compensation even though policy was issued earlier to 1994. Karnataka High Court. ', '<p><b>United India Insurance Co Ltd vs Susheelamma and others.&nbsp;</b></p><p><b>Miscellaneous First Appeal 8329 of 2009 decided on 28 June 2021.</b></p><p><b>Justice H.P. Sandesh.</b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">This appeal is filed by the Insurance Company challenging the judgment and award dated 26.08.2009 passed in M.V.C.No.1371/1195 on the file of the Additional District and Sessions Judge, Chitradurga (‘the Tribunal’ for short) questioning the fastening of liability on the Insurance Company.</span><br></b></p><p><b>4. The main contention urged by the Insurance Company in this appeal through the counsel is that the policy of insurance was issued much earlier to 14.11.1994. Under the&nbsp; said circumstances, there existed no legal liability on the Insurance Company to pay any compensation even though the owner of the goods or his authorized representative was being&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">carried in a goods carriage. The Tribunal was required to have noticed that there existed no material to indicate that the deceased was travelling in the goods vehicle as the owner of the goods. The Tribunal failed to notice the evidence adduced by the appellant and also the terms and conditions of the policy and in the absence of the insured not being made a party to the proceedings, there exists no liability on the part of the insurer to pay any compensation.</span></b></p><p><b>10. The Apex Court in its judgment in the case of Asha Rani (supra) discussed the amendment Act 54 of 1994 by which the expression “injury to any person” in the original Act stood substituted by the expression “injury to any person including owner of the goods or his authorized representative carried in the vehicle”, the conclusion is irresistible that prior to the&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">aforesaid Amendment Act of 1994, even if the widest interpretation is given to the expression “to any person” it will not cover either the owner of the goods or his authorized representative being carried in the vehicle. The objects and reasons of clause 46 also state that it seeks to amend Section&nbsp;</span><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">147 to include owner of the goods or his authorized representative carried in the vehicle for the purposes of liability under the insurance policy. The Apex Court in detailed discussed the same and comes to the conclusion that in respect of cases under Section 147 prior to its amendment in 1994, the insurer will not be liable for paying compensation to the owner of the goods or his authorized representative on being carried in a goods vehicle when that vehicle meets with an accident and the owner of the goods or his representative dies or suffers any bodily injury. It is held that subsequent to 1994 amendment,&nbsp; the legislature wanted to bring within the sweep of Section 147 and make it compulsory for the insurer to insure even in case of a goods vehicle, the owner of the goods or his authorized representative being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representative either dies or suffers bodily injury.</span></b></p><p><b>11. This Court in the judgment in the case of SHIVA @ SHIVASHANKAR v. RAJESH AND ANOTHER reported in 2019&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">(1) KCCR 860, having considered the amendment made in the year 1994 including the owner and representatives of the owner of the goods came to the conclusion that the employee or the representative of the owner of the goods are covered consequent upon the amendment.</span></b></p><p><b>The appeal is dismissed.</b></p>', '9da2c08462f7c9653ec8026448ca1c88.JPG', '88385a59d7837bd667a6242dcbfb6129.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-16', 1, '', '', '2023-02-16 13:25:21', '2023-02-16 09:02:54'),
(873, 'r6nV8pLk40WCU1oYLb36OLOYm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act. Where contract empowers only one of the parties to appoint sole arbitrator, the person who has an interest in the outcome of the dispute can NOT appoint a sole arbitrator. Karnataka High Court. ', '<p><b>M/s. Suresh Goel and Associates vs Indian Institute of Technology.</b></p><p><b>Civil Miscellaneous Petition 100006 of 2021 decided on 30 June 2021. </b></p><p><b>Judgment Link: </b><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/392491/1/WA100052-21-06-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/392491/1/WA100052-21-06-07-2021.pdf</a></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">This is a petition filed under Section 11(5)(6 ) and 12(b) of the Arbitration and  Conciliation  Act,  1996 seeking appointment of sole arbitrator to adjudicate the disputes that have arisen between the petitioner and the respondent under Clause 2 .4 .7 of the  General Conditions of the Contract in the Technical Bid Section of Contract dated 10.4 .2018 entered into by and between the petitioner and respondent </b></p><p><b>11. The Hon’ble Supreme Court in the case  of   Perkins  Eastman Architects DPC and Another Vs. HSCCC (India) Ltd. reported in 2019 SCC Online SC 1517  has held as  follows:</b><br></p><p><i><b>“20. We thus have two categories of cases. The first, similar to the one dealt with in TRF Limited where the </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Managing Director himself is named as an arbitrator with an additional power to appoint any other person as an arbitrator. In the second category, the Managing Director is not to act as an arbitrator himself but is empowered or authorized to appoint any other person of his choice or discretion as an arbitrator. If, in the first category of cases, the Managing Director was found incompetent, it was because of the interest that he would be said to be having in the outcome or result of the dispute. The element of invalidity would thus be directly relatable to and arise from the interest that he would be having in such outcome or decision. If that be the test, similar invalidity would always arise and spring even in the second category of cases. If the interest that he has in the outcome of the dispute, is taken to be the basis for the possibility of bias, it will always be present irrespective of whether the matter stands under the first or second category of cases. We are conscious that if such deduction is drawn from the decision of this Court in TRF Limited, all cases having clauses similar to that with which we are presently concerned, a party to the agreement would be disentitled to make any appointment of an Arbitrator on its own and it would  always be available to argue that a party or an official or an authority having interest in the dispute would be disentitled to make appointment of an Arbitrator. . But, in a case where only one party has a right to appoint a sole arbitrator, its choice will always have an element of exclusivity in determining or charting the course for dispute resolution. Naturally, the person who has an interest in the outcome or decision of the dispute must not have the power to appoint a sole arbitrator. That has to be taken as the essence of the amendments brought in by the Arbitration and Conciliation (Amendment) Act, 2015 (Act 3 of 2016) and recognized by the decision of this Court in TRF Limited.”</b></i></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">12. The Hon’ble Supreme Court in the case  of  </b><b>of  Perkins  Eastman Architects DPC and Another Vs. HSCCC (India) Ltd. reported in 2019 SCC Online SC 1517 </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">clearly held that where the document of contract empowers only one of the parties to the  dispute to appoint sole arbitrator, such power  will  have  an element of exclusivity in determining or charting  the course for dispute resolution. It is further held that the person who has an interest in the outcome or  decision of the dispute must not have the power to appoint a sole arbitrator.</b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">13. The Hon’ble Supreme Court has clearly  said that, that has to be taken as essence of the amendment brought in by the Arbitration and  Conciliation (Amendment) Act, 2015 and the said principle has been recognized by an earlier decision reported  in  2017  (8) SCC  377  (TRF  Limited  Vs.   Energo   Engineering  Projects Limited).</b></p><p><b>14.<span style=\"white-space:pre\">	</span>The above decision is squarely applicable to the present case. In that view of the  matter, appointment of Sri. Jose Kurian as Sole Arbitrator made by Sri. Vinayak Chaterjee, Chairman of the Board of Governors of the</b></p><p><b>ORDER</b></p><p><b>a)<span style=\"white-space:pre\">	</span>The above petition is allowed.</b></p><p><br></p>', '5d2d7d2302d3b6c1359aeda9a2b12eb8.jpg', 'da0b800fbbbe4364de169bb473c81d30.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-30', 1, '', '', '2021-07-07 03:45:24', '2021-07-07 03:48:38'),
(874, 'GSXi9BnEuEx6AfoHOcfAekwHs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Electricity Supply. Purchaser of industry is liable to pay arrears towards electricity supply to earlier owner. However, there shall be apportionment of purchaser\'s liability when only a part of industry is purchased. Karnataka High Court.    ', '<p><span style=\"font-weight: bolder;\">OPG Power Generation Pvt. Ltd., vs Gulbarga Electricity Supply Co. Ltd.and another.</span></p><p><span style=\"font-weight: bolder;\">Writ appeal No.100052/2021 (GM-KEB) decided on 6 July 2021.&nbsp;</span></p><p><span style=\"font-weight: bolder;\">Justice Krishna S Dixit and Justice Pradeep Singh Yerur.&nbsp;</span></p><p><span style=\"font-weight: bolder;\">Judgment Link:&nbsp;</span><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/392491/1/WA100052-21-06-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/392491/1/WA100052-21-06-07-2021.pdf</a><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\"></b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">This Intra-Court Appeal seeks to lay a challenge to the Judgment &amp; Order dated 24.02.2021 rendered by a learned Single Judge whereby appellant’s W.P.No.109192/2017 having been dismissed the stand of the respondent-Electricity Supply Company that the payment of arrears of electricity charges in respect of subject property is a precondition for the sanctioning of power connection is upheld.</b></p><p><b>(ii) The question raised by Mr. Khannur as above is no longer res integra: in almost an identical fact matrix the Apex Court in Paschimanchal Vidyut Vitran Nigam V. DVS Steels and Alloys Private Limited, (2009)1&nbsp; SCC&nbsp; 210, has observed that a transferee of a premises although does not suffer the arrears of power supply charges as an encumbrance because of absence of brevity of contract, still the Supply Company can stipulate that the clearance of arrears that rested on the predecessor-in-title or in possession of the subject property is a sine qua non for seeking a fresh connection; it also said that such conditions are not unreasonable, lest an unscrupulous consumer should commit default with impunity and make the recovery of arrears impossible by selling away the property; learned Panel Counsel is right in contending that the Supply Conditions have a statutory flavour and that they are not ex contractu pure &amp; simple vide Telangana State Southern Power Distribution Company Limited V. Srigdhaa Beverages, (2020)6 SCC 404 and therefore, the arrears are ‘statutory dues’; the power supply is regulated by the contract, does not make them any the less statutory and therefore, the absence of privity of contract does not come to the protection of the buyers of the property concerned, which suffered disconnection of power supply on account of non-payment of power charges</b></p><p><b>(v) The vehement submission of Mr. Khannur that predecessor-in-title&nbsp; had&nbsp; &nbsp;got&nbsp; &nbsp;the&nbsp; &nbsp;installation&nbsp; &nbsp;vide RR No.EHT2 to the premises which in all admeasured about 800 acres and the petitioner having bought only about 15% of this i.e., 119 acres &amp; 62 cents, cannot be asked to pay the entire arrears quantified at Rs.21.63 crore, merits consideration</b></p><p><b>(vii)<span style=\"white-space:pre\">	</span>After all the apportionment of liability has a kinship with the doctrine of proportionality since the non-apportionment in a given circumstance may be true to be unjust &amp; unfair to a perspective consumer who is made to shoulder the entire liability for arrears; no contra-indicative provision in the Supply Conditions is brought to our notice; the decision of the Apex Court in Pashimanchal supra too supports this view, as rightly submitted by Mr. Khannur; should that be so, petitioner is more than justified in seeking apportionment of liability for arrears; however, this entire aspect needs to be examined by the respondents themselves afresh, since the foundational facts have to be ascertained from the files in their custody and the same not readily available on record loaded to the Board here.</b></p><p><b>In the above circumstances, this appeal succeeds in part; subject to what has been observed hereinabove, the respondents shall consider afresh and decide after hearing all the stake holders, as to the apportionment of the liability for arrears in question&nbsp;</b></p>', '5a4ac0a22e28ba7d0dc8b8538e1481f4.jpeg', '5c26605028fee61e183283221bdbf26a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-06', 1, '', '', '2021-07-07 16:46:38', '2021-07-07 16:46:38'),
(875, '8CsM5TJqSs1gBSrx7ldU3X6Jn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Dismissal of suit for default. Revival of interim orders granted earlier on restoration of the suit. Case law discussed. Supreme Court. ', '<p><b>Vareed Jacob v. Sosamma Geevarghese</b></p><p><b>Civil Appeal 2634 of 2004 decided on 21 April 2004.&nbsp;</b></p><p><b>Reported in (2004) 6 SCC 378</b></p><p><b>5. In view of the aforestated arguments, the point which arises for determination is: whether there is automatic revival of interlocutory orders with the restoration of the suit unless the circumstances occurring during the interregnum or the orders passed by the court speak to the contrary.</b></p><p><b>6. The Civil Procedure Code, 1908 applies to all proceedings in courts of civil jurisdiction, subject to any special or local law or any special jurisdiction under any other law for the time being in force. The main feature of the Code is its division into two parts. The main body of the Code consists of sections which create jurisdiction while the rules indicate the manner in which the jurisdiction has to be exercised.</b></p><p><b>7. Section 9 states that the courts shall have the jurisdiction to try all suits of civil nature except suits which are expressly or impliedly barred. Section 9 falls in Part I CPC which deals with suits in general. Part II deals with execution. Part II CPC covers Sections 51 to 64. Under Section 51 CPC, subject to limitations and conditions as may be prescribed, the court may order execution of the decree by delivery of any property specifically decreed; by attachment and sale; by arrest and detention; by appointment of receiver or in such a manner as the nature of the relief granted may require. Therefore, attachment is a part of execution process (see Mahadeo Dubey v. Bhola Nath Dichit [ILR (1883) 5 All 86 : (1882) 2 AWN 186] ). Part III CPC deals with incidental proceedings like power of the court to issue commission, letter of request, etc. Part VI CPC deals with supplemental proceedings which cover Section 94 which inter alia empowers the court to pass interim orders depending upon the circumstances prescribed by the rules.</b></p><p><b>8. In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal [AIR 1962 SC 527 : 1963 All LJ 169] it has been held that the effect of the expression “if so prescribed” in Section 94 CPC is to prescribe the circumstances in which courts can exercise or grant a particular relief and ordinarily the court is not to use its inherent powers to make the necessary orders in the interest of justice, but to see whether the circumstances of the case come within the prescribed rule. Therefore, in a case where the plaintiff seeks temporary injunction courts have to ascertain whether the facts of the case fall under Order 39. That it is in the incidence of exercise of power of the court to issue temporary injunction that Section 94 has a role to play and that Section 94, however, does not take away the right of the court to exercise its inherent power. In the same judgment, Section 151 CPC is also analysed. The Apex Court in the same judgment has held that inherent power has not been conferred upon the court by Section 151 CPC. It is a power inherent in the court by virtue of its duty to do justice between the parties before it. That Section 151 merely recognises the existence of the inherent power of the court, therefore, even if in a given case circumstances do not fall within Order 39 CPC, the courts have inherent jurisdiction to issue temporary injunction if the court is of the opinion that interest of justice requires issue of such interim injunction.</b></p><p><b>9. In the case of Ram Chand &amp; Sons Sugar Mills (P) Ltd. v. Kanhayalal Bhargava [AIR 1966 SC 1899] it has been held by this Court that the inherent power of the court under Section 151 CPC is in addition to and complementary to the powers expressly conferred under CPC, but that power will not be exercised in conflict with any of the powers expressly or by implication conferred by other provisions of CPC. If there is express provision covering a particular topic, then Section 151 CPC cannot be applied. Therefore, Section 151 CPC recognises inherent power of the court by virtue of its duty to do justice and which inherent power is in addition to and complementary to powers conferred under CPC, expressly or by implication.</b></p><p><b>10. In the case of Jagjit Singh Khanna v. Dr. Rakhal Das Mullick [AIR 1988 Cal 95 : (1988) 92 CWN 190] it has been held that a temporary injunction may be granted under Section 94(c) only if a case satisfies Order 39 Rule 1 and Rule 2. It is not correct to say that the court has two powers, one to grant temporary injunction under Section 94(c) and the other under Order 39 Rules 1 and 2. That Section 94(c) CPC shows that the court may grant a temporary injunction thereunder, only if it is so prescribed by Rule 1 and Rule 2 of Order 39. The court can also grant temporary injunction in exercise of its inherent powers under Section 151, but in that case, it does not grant temporary injunction under any of the powers conferred by CPC, but under powers inherent in the constitution of the court, which is saved by Section 151 CPC.</b></p><p><b>11. The above discussion shows that the source of power of the court to grant interim relief is under Section 94. However, exercise of that power can only be done if the circumstances of the case fall under the rules. Therefore, when a matter comes before the court, the court has to examine the facts of each case and ascertain whether the ingredients of Section 94 read with the rules in an order are satisfied and accordingly grant an appropriate relief. It is only in cases where circumstances do not fall under any of the rules prescribed that the court can invoke its inherent power under Section 151 CPC. Accordingly, the courts have to grant relief of attachment before judgment, if the circumstances fall under Order 38 CPC. Similarly, courts will grant temporary injunction if the case satisfies Order 39. So depending on the circumstances falling in the prescribed rules, the power of the court to grant specified reliefs would vary. Therefore, each set of rules prescribed is distinct and different from the other and therefore, one cannot equate rules of temporary injunction with rules of attachment before judgment although all are broadly termed as interlocutory orders.</b></p><p><b>12. In the case of Abdul Hamid v. Karim Bux [AIR 1973 All 67 : 1972 All LJ 892] it has been held that on the dismissal of the suit in default, attachment before judgment automatically ceases and does not revive on the restoration of the suit. In coming to this conclusion, the Allahabad High Court placed reliance on the earlier judgment of the Allahabad High Court in the case of Ram Chand v. Pitam Mal [ILR (1888) 10 All 506 : (1888) 8 AWN 195] .</b></p><p><b>13. Similarly, in the case of Raj Chander Gupta v. Ramesh Kishore [AIR 1965 All 546] it has been held that on the dismissal of the suit either on merit or for default attachment before judgment shall cease and it shall not revive automatically on restoration of the suit. Here also reliance has been placed by the Allahabad High Court on the earlier judgment in the case of Ram Chand v. Pitam Mal [ILR (1888) 10 All 506 : (1888) 8 AWN 195] .</b></p><p><b>14. In the case of Nagar Mahapalika v. Ved Prakash [AIR 1976 All 264] the same view has been taken in that matter. In that matter it was held that interim injunction came to an end on dismissal of the suit for default and it would not automatically revive on restoration. Here also reliance has been placed by the Allahabad High Court on its earlier judgment in the case of Ram Chand v. Pitam Mal [ILR (1888) 10 All 506 : (1888) 8 AWN 195] . However, this is the only judgment which has equated order of temporary injunction with attachment before judgment as interlocutory orders without considering provisions of Order 38 Rule 9 and Rule 11.</b></p><p><b>15. At the outset, we may point out that the case of Ram Chand v. Pitam Mal [ILR (1888) 10 All 506 : (1888) 8 AWN 195] was under the provisions of the earlier Civil Procedure Code of 1859. In this case we are concerned with the Civil Procedure Code of 1908, which has made substantial changes with regard to the attachment before judgment. Under Order 38 Rule 1 an extraordinary relief is given to the plaintiff, namely, in appropriate cases where the court finds a strong prima facie case in favour of the plaintiff and if the court is satisfied that the defendant is likely to defeat the decree in future as and when it is passed, then the court shall grant attachment before judgment even before final adjudication of the claim of the plaintiff, hence it is an extraordinary relief given to the plaintiff by the court. However, under Order 38 Rule 9 the court shall order withdrawal of attachment when the suit is dismissed. Therefore, Rule 9 makes it mandatory for the court to lift the attachment at the time of the dismissal of the suit. Such a provision is not there under Order 39 or under Order 40. This has not been noticed by the Allahabad High Court in the case of Nagar Mahapalika v. Ved Prakash [AIR 1976 All 264] . All the earlier judgments of the Allahabad High Court related to Order 38 and not to Order 39. Moreover, as stated above, attachment is a part of execution process. It is granted to protect the decree. Under Order 38 Rule 11 it is further provided that when the suit is decreed the courts will continue attachment before judgment and the plaintiff is not required to reapply for attachment. The scheme of Order 38 is different from Order 39 or Order 40. Hence, we cannot compare attachment under Order 38 with power of the court to grant temporary injunction under Order 39 as interlocutory orders. Similarly, Order 21 Rule 57 indicates the duty on the courts to order whether the attachment shall continue or cease on the dismissal of the execution suit.</b></p><p><b>17. In the case of Shivaraya v. Sharnappa [AIR 1968 Mys 283 : (1967) 1 Mys LJ 414] it has been held that the question whether the restoration of the suit revives ancillary orders passed before the dismissal of the suit depends upon the terms in which the order of dismissal is passed and the terms in which the suit is restored. If the court dismisses the suit for default, without any reference to the ancillary orders passed earlier, then the interim orders shall revive as and when the suit is restored. However, if the court dismisses the suit specifically vacating the ancillary orders, then restoration will not revive such ancillary orders. This was a case under Order 39.</b></p><p><b>18. In the case of Saranatha Ayyangar v. Muthiah Moopanar [AIR 1934 Mad 49 : ILR 57 Mad 308] it has been held that on restoration of the suit dismissed for default all interlocutory matters shall stand restored, unless the order of restoration says to the contrary. That as a matter of general rule on restoration of the suit dismissed for default, all interlocutory orders shall stand revived unless during the interregnum between the dismissal of the suit and restoration, there is any alienation in favour of a third party.</b></p>', 'a8c45baf20063bb6d4585af2971a9616.jpg', 'd1d7ca2181c86364e976f08c533983ae.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2004-04-21', 1, '', '', '2021-07-07 22:22:58', '2021-07-07 22:22:58'),
(876, 's4XUix3dJbNW7IpnwknbQfJan', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Marriage. Duty of husband to take care of the health and safety of wife is a \'pre-existing obligation\'. In a divorce settlement, such duty cannot be considered as an additional obligation or burden. Supreme Court.   ', '<p><b>Vennangot Anuradha Samir vs Venangot Mohandas Samir. </b></p><p><b>Transfer Petition 702 of 2015 decided on 2 December 2015.</b></p><p><b>Justice M.Y. Eqbal and Justice C. Nagappan. </b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/jonew/judis/43152.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/43152.pdf</a></b></p><p><b>15-17. Section 13-B of the Hindu Marriage Act makes a\r\nprovision of divorce by mutual consent. <span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Section 23 casts a duty upon a Court to record its\r\nsatisfaction before passing a decree in a suit or proceeding. This Court elaborately discussed the aforesaid provisions\r\nin the case of Sureshta Devi vs. Om Prakash, (1991) 2 SCC\r\n25 </span></b></p><p><b>18. If we consider the provisions of Indian Contract Act, it\r\nprovides that consent is said to be free when it is not caused\r\nby “undue influence” as defined in Section 16 of the Act. The\r\ncontract is said to be induced by “undue influence” where the\r\nrelations subsisting between the parties are such that one of\r\nthe parties is in a position to dominate the will of the other\r\nand uses that position to obtain an unfair advantage over the\r\nother.<br></b></p><p><b>19. One more doctrine is to be taken into consideration i.e.\r\n“Pre-existing duty doctrine”. It is a principle under the <span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Act that states that if a party to a contract is under a\r\npre-existing duty to perform, then no consideration is given for\r\nany modification of the contract and the modification is\r\ntherefore voidable. In the 13th edition of the Pollock & Mulla\r\nIndian contract and Specific relief Act in Vol.1, it is mentioned\r\nat page 101 about the Pre-existing obligation under law which\r\nprovides that:-\r\n</span></b></p><p><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\"><b><i>“The performance of what one is already bound to do,\r\neither by general law or by a specific obligation to the\r\nother party, is not a good consideration for a promise;\r\nbecause such performance is no legal burden to the\r\npromise, but rather relives him of a duty. Neither is\r\nthe promise of such performance a consideration,\r\nsince it adds nothing to the obligation already\r\nexisting.”\r\n</i></b></span></p><p><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\"><b>20. We can apply this principle in the present case. As\r\ndiscussed above, it is a duty of the respondent-husband to\r\ntake care of the health and safety of the petitioner-wife. In the\r\ninstant case also it is a primary duty of the husband only to\r\nprovide facilities for the treatment of the petitioner. This is a\r\npre-existing duty of the husband, provided the husband has\r\nsufficient means and he is diligently doing his part in taking care of her. In the present case, by the settlement agreement\r\nthe respondent-husband is promising to do something which\r\nhe is already duty bound, is not a valid consideration for the\r\nsettlement.</b></span></p>', '028ba469395e8b104019f8512beea1c8.PNG', '90fecce87d35ec98db3f108566181d1c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2015-12-02', 1, '', '', '2021-07-08 01:42:54', '2021-07-08 02:03:54');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(877, 'NWLKO48RRXZ6i2vVzSBW34wIs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Property inherited by a female from her parents reverts back to heirs of her father on she dying intestate and without issues. Suit for declaration by husband claiming such property ought to be rejected under Order 7 rule 11. Karnataka High Court.', '<p><b>Manipal University vs Ramanjinappa H and others. </b></p><p><b>Civil Revision Petition 253 of 2015 decided on 21 June 2021. </b></p><p><b>Justice B M Shyam Prasad</b></p><p><b><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">The ninth defendant in OS No. 5079/2007 on the file of the XXIV Additional City Civil and Sessions Judge, Bengaluru (CCH No. 6) (for short, ‘the Civil Court’) has filed this petition calling in question the order  dated  05.03.2015.  The  suit  in OS No.5079/2007 is filed by the first respondent for declaration that he is the absolute owner of the  land and for declaration that the sale deeds dated 10.05.1986 and 06.09.1988 are non-est. The petitioner, who  is  subsequently  impleaded  as the ninth defendant along with other defendants, has filed application under Order VII rule 11(a) and (d) of the Code of Civil Procedure, 1908 (for short, ‘CPC’) for rejection of the plaint, and the Civil Court by the impugned order dated 05.03.2015 has rejected the application.</span><br></b></p><p><b>10. The Civil Court has rejected the ninth defendant’s application observing  that  cause  of  action  for  suit is a bundle of facts which will have to be established by the plaintiff in a trial and  that  the  question  of  limitation  is  a  mixed question of fact  and  law  which  can  only  be  decided  after a  full-fledged  trial.  The  Civil  Court  has  rejected  the  ninth defendant’s reliance on the provisions of the HS Act for rejection of the plaint opining that whether  Smt.  Honnamma  [the mother-in-law] had a limited right in the subject property that is enlarged as  envisaged  under section 14(2) of the HS  Act is also a matter of trial and the plaintiff cannot  be  non-  suited on such ground without a trial.</b></p><p><b>11. Sri Arvind Kamath, the learned  senior  counsel  who appears for the ninth defendant, submits that the Civil Court has not considered the ninth defendant’s case based on the provisions of Section 15 of the  HS  Act.  He  emphasises that even if Smt. Ashwathamma [under whom the plaintiff asserts claim in the subject property] could assert interest in the subject property, it would only be as a legal heir of her father, Sri. Ramanjinappa. Hence the provisions of Section 15(2) of the HS Act apply and the subject property on her intestate demise, devolve only on her father’s legal heirs. The plaintiff, who could be a legal heir of Smt. Ashwathamma as her husband, cannot claim any right in the subject property.</b></p><p><b>21. The succession to the properties of a Hindu  woman dying intestate is governed by the provisions  of  section 15 read with the provisions of section 16 of the  Hindu Succession Act. The ninth defendant contends ex-facie the  plaintiff  cannot assert any right in the subject property because the provisions of section 15(2) of the HS Act would apply, and the plaintiff asserts that the provisions of section 15(2) would not apply because the plaintiff claims title to the subject property under Smt. Ashwathamma who succeeded thereto from her parents and did not inherit the same from them.</b></p><p><b>22. The provisions of section 15 of the HS Act have come up for consideration before the Hon’ble Supreme Court  in Bhagat Ram v. Teja Singh, (2002) 1 SCC 210 <span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">and the interplay between the provisions in sub-section (1) and sub-section (2) of section </span><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">15 of HS Act, 1956 has been elucidated.</span></b></p><p><b>23. A useful reference in this regard could be also  made to the reiteration of this proposition by the Hon’ble Supreme Court in S.R. Srinivasa & Ors v. S. Padmavathamma referring to its earlier decision in V. Dandapani Chettiar v. Balasubramanian Chettiar (2003) 6 SCC 633.</b></p><p><b>26. The definite and uniform scheme of succession under section 15 of the HS Act is that the heirs of a Hindu woman who dies intestate are grouped into five categories as described in entries (a) to (b) of section 15(1) of the HS Act  with two exceptions if such woman dies intestate without leaving behind any issue. In such cases  for  the  two  exceptions to operate, the Hindu woman should  have  inherited the concerned property either from her parents  or her husband/ father-in-law; if she has inherited from her parents, it devolves on to the legal heirs of the father and if   she has inherited from her husband/father-in-law, the property devolves onto the legal heirs of the husband. These exceptions are [as declared by the Hon’ble Supreme Court in Dandapani Chettiar v. Balasubramanian Chettiar [supra] a very limited recognition of the old Hindu law  which restricted a woman\'s estate in inherited property for its devolution as from the last full owner.</b></p><p><b>28. Therefore, it would be indisputable that Smt. Ashwathamma inherited the subject property as a legal heir  of  her  father, Sri. Ramanjinappa. Thus, even from the plaint averments it is obvious that Smt. Ashwathamma could only have claimed the subject property by inheritance from her father; in which event, the subject property would  revert to the legal heirs of her father. </b></p><p><b>29. It is settled law that the plaint can be rejected under Order VII Rule 11 of CPC only if conditions enumerated in the provisions thereof are fulfilled. For the purposes of rejection of plaint under Order VII Rule 11 of CPC, the Courts must only consider the averments in the plaint, and the averments in the written statement are wholly immaterial. A plaint can be rejected at any stage of the proceedings, and when a plaint is rejected, the Courts exercise drastic power as the proceedings are truncated at the threshold without a trial. The averments in the plaint must be read as  a  whole  and  must be taken on their face value; only  if  the  plaint  averments on such reading, does not disclose  cause of action  or is barred by law, the power under Order VII Rule 11(a) or (d) of CPC can be exercised. An ingenious and a  clever  drafting creating an illusion of cause of action cannot save a plaint if the conditions contemplated under Order VII Rule 11 of CPC are fulfilled, and the plaint must be rejected to nip a bogus litigation at the earliest stage.</b></p><p><b>30. This Court, for the reasons already detailed, has opined that the plaint does not disclose cause of action in the plaintiff for declaration of title to the subject properties  in  view of the provisions of Section 15(2) of the HS Act.  </b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">33.<span style=\"white-space:pre\">	</span>The suit is for declaration of title and declaration that the impugned sale deeds are non-est. The  period of limitation for the suit would be the period prescribed under Article 58 Part III of the schedule to the Limitation Act. There is no  dispute that the applicable provisions would be Article  58 of the Limitation Act. While it is argued on behalf of the ninth defendant that the cause of action for the suit, even if any, first accrued on the execution of the sale deed dated 10.05.1986 as contemplated under Article 58, it is argued on behalf of the plaintiff that the question of limitation is a mixed question of fact and law and in this case the cause of action  first arose in the first week of  the  month of  October 2006.  The learned counsel for the plaintiff, without disputing the applicability of Article 58, emphasises that the question of limitation is always an amalgam of questions of fact and law, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and therefore, the question of limitation cannot be examined  at the threshold.</span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">35.<span style=\"white-space:pre\">	</span>In the present case, it is not disputed that the provisions of Article 58 of Part III of the Schedule to the Limitation Act would apply. The cause of action for the challenge to the sale deed dated 10.05.1986 first arose  with  the execution and registration of such sale deed in the year 1986 and definitely in the year 1988 insofar as the other impugned sale deed dated 06.09.1988. The plaintiff’s contention that the cause of action first arose  in  the  first  week of the month of October, 2006 because he was in possession of the subject property without the knowledge of  the sale deeds which were executed without  his  wife’s  consent. This is despite stating that the revenue entry stood transferred in favour of the second defendant  on  the  execution of the sale deed dated 06.09.1988. In  the  considered opinion of this Court, there is clever drafting to create an illusion of a cause of action and gloss over the fact that the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">suit was not commenced over a period of two decades from   the date of the sale deed, i.e., when the cause of action first arose. This is obvious even from the reading of the plaint averments. As such, the plaint is also liable to be  rejected under Order VII Rule 11(d) of CPC.</span><br></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>For the foregoing, the impugned order dated 05.03.2015 in OS No. 5079/2007 on the file of the XXIV Additional City Civil and Sessions Judge, Bengaluru (CCH No. 6) is set aside and the plaint in this suit in OS No. 5079/2007 is rejected under Order VII Rule 11(a) and (d) of CPC. </b></span></p>', '22b5e9568936476b5e4a5e09df6b5a13.JPG', 'd8b6a2cd9689b8531db7612aedc82061.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-08', 1, '', '', '2021-07-08 03:27:49', '2023-02-08 13:43:23'),
(2645, 'PFjct5XoIOha46k7UBfbLOs5g', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'To err is human. Infallibility is unknown to humanity.\' Mistake in mentioning caste status shall not result in loss of employment. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Hemanthkumar N Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 24847 of 2022 decided on 31 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court calling in question nonconsideration of his candidature under SC, SC/KMS, SC/RL\r\ncategory owing to his name not being figured in the provisional\r\nselect list dated 25-11-2022 published by the 2nd respondent/\r\nKarnataka Public Service Commission (‘the Commission’ for\r\nshort) for the post of Junior Assistant/Second Division\r\nAssistant. The petitioner further seeks a direction by issuance\r\nof a writ in the nature of mandamus to correct the error of the\r\npetitioner which is depicted as him belonging to Scheduled\r\nTribe to that of Scheduled Caste.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Brief facts that lead the petitioner to this court in the\r\nsubject petition, as borne out from the pleadings, are as\r\nfollows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The 2nd respondent/Commission issues a Notification on\r\n29-02-2020, inviting applications for the post of Junior\r\nAssistant/ Second Division Assistant in the Resident Parent\r\nCadre. The petitioner belongs to Scheduled Caste and finding\r\nhimself eligible applies pursuant to the said notification and the\r\napplication had been sent through online as required. The\r\npetitioner claims to have got it typed at a cyber centre and\r\nwhile filling the application under the category column fills it as\r\nScheduled Tribe instead of Scheduled Caste. The application\r\ngets uploaded online showing the petitioner as belonging to\r\nScheduled Tribe instead of Scheduled Caste to which he\r\nactually belongs. Noticing the error, the petitioner again made\r\nefforts to change the category online on 15-07-2021 and claims\r\nthat the change was approved on the website. Thinking that he\r\nwas a participant under the Scheduled Caste category, the\r\npetitioner participated in the written test which was held on\r\n19-09-2021.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The petitioner approaches the Karnataka State\r\nCommission for Scheduled Castes and Scheduled Tribes\r\n(‘SC/ST Commission’ for short) venting out his grievance that\r\nhe would lose the opportunity of consideration of his\r\ncandidature for appointment if he is not considered as\r\nbelonging to Scheduled Caste. The SC/ST Commission also\r\nrequests the 2nd respondent/Commission to consider the case\r\nof the petitioner. The petitioner then represented on 17-09-\r\n2022 and 23-09-2022 with regard to the correction of error. All\r\nthese did not yield any result. A provisional select list was\r\nnotified on 25-11-2022 and the name of the petitioner did not <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">figure in the said list ostensibly for the reason that the\r\npetitioner was treated as belonging to Scheduled Tribe and the\r\nposts reserved for Scheduled Tribe were minimal. It is then, the\r\npetitioner knocked at the doors of this Court in the subject\r\npetition calling in question the aforesaid action.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The afore-narrated facts are not in dispute. The issue\r\nlies in a narrow compass. The petitioner belongs to Scheduled\r\nCaste ‘Lamani’ and is in possession of a caste certificate issued\r\nby the competent authority depicting him to be a Scheduled\r\nCaste way back on 9-12-2013. It cannot be in dispute that the\r\npetitioner is a Scheduled Caste. The Commission issued a\r\nNotification on 29-02-2020 calling for applications from eligible\r\ncandidates for the post of Junior Assistant/Second Division\r\nAssistant in the Resident Parent Cadre. The petitioner finding\r\nhimself eligible to be considerate for the said post files his\r\napplication online. While filling the application, the petitioner\r\nerroneously clicks the option Scheduled Tribe instead of\r\nScheduled Caste notwithstanding the fact that he is a candidate\r\nbelonging to Scheduled Caste. It was an error committed while\r\nfiling the application online.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">12. It is not in dispute that the petitioner is a Scheduled\r\nCaste. Mere error in filling up an application will not change his\r\ncaste status. During the time of document verification, the\r\npetitioner had submitted his caste certificate depicting to be\r\nScheduled Caste. The Commission could have corrected the\r\nerror at that time. This human error is glorified by the\r\nCommission by declining to accede to the request for change of\r\ncategory at the time of document verification. It is not in\r\ndispute that the petitioner has secured high marks and would </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">definitely come within the zone of consideration, if he was\r\ntreated as a Scheduled Caste candidate. Treating him as a\r\ngeneral merit or Scheduled Tribe candidate has taken away the\r\nconsideration for appointment of the petitioner. The\r\nglorification of a trivial human error has resulted in loss of\r\nappointment to the petitioner, a Scheduled Caste candidate.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. In the aforesaid circumstances, the Apex Court\r\nconsidering the very issue where the caste certificate itself was\r\nnot submitted at the time of filing of the application but was\r\nlater submitted holds it to be a curable defect which would not\r\ntake away consideration for appointment of a Scheduled Caste\r\ncandidate. The Apex Court in the case of RAM KUMAR\r\nGIJROYA v. DELHI SUBORDINATE SERVICES SELECTION\r\nBOARD</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The observations above were affirmed by the Apex Court in the\r\ncase of RAM KUMAR GIJROYA. The afore-quoted cases were\r\nthe cases where the caste certificate itself was not appended. If\r\nthat cannot be glorified as an error and that error had been set <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">at naught by the constitutional Courts; the error in the case at\r\nhand is only trivial. A triviality cannot take away the right of a\r\nScheduled Caste candidate for consideration of his case as a\r\ncandidate belonging to Scheduled Caste.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">14. The learned counsel for the petitioner would now\r\nsubmit that a final select list is also notified by the Commission\r\nduring the pendency of the writ petition and therefore, a\r\ndirection is required to be given to the Commission to include\r\nthe name of the petitioner in the select list according to his\r\nmerit vis-à-vis the candidate who is less meritorious than that\r\nof the petitioner in the category of Scheduled Caste. Here\r\nagain the learned counsel appearing for the Commission\r\nsubmits that this would open Pandora’s box and become a\r\nprecedent. I decline to accept the submission of the\r\nCommission, if this order opens up Pandora’s box; so be it, if it\r\nbecomes a precedent; so be that. This Court would not turn a\r\ndeaf ear to a cry of a Scheduled Caste candidate who has\r\nscored high marks, despite the trials and tribulations\r\nthroughout that they face to lose the opportunity of getting\r\nselected for trivial reasons. The Commission ought to have\r\ncorrected the trivial human error when the petitioner pointed it</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">out at the time of document verification. Having not done so,\r\nthe Commission cannot now contend that this order would open\r\nup Pandora’s box or become a precedent. It cannot be\r\nforgotten that, “to err is human”, infallibility is unknown\r\nto humanity.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The Writ Petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '41e191eafaac4deb101d89b507ce2d7d.jpeg', '325cab6e27b356622f33cedbf6cabf94.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-11', 1, '', '', '2023-02-08 14:25:23', '2023-02-11 11:50:34'),
(878, 'uzjd7XFnbJVvLieVkvrUTinQq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Order 7 rule 11. Rejection of Plaint. If the plaint does not contain necessary averments relating  to limitation or if the suit is prima facie barred by time, the plaint is liable to be rejected. Karnataka High Court. ', '<p><b>Manipal University vs Ramanjinappa H and others.&nbsp;</b></p><p><b>Civil Revision Petition 253 of 2015 decided on 21 June 2021.</b></p><p><b>Judgment Link: </b><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/390269/1/CRP253-15-21-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/390269/1/CRP253-15-21-06-2021.pdf</a></p><p><b>The ninth defendant in OS No. 5079/2007 on the file of the XXIV Additional City Civil and Sessions Judge, Bengaluru (CCH No. 6) (for short, ‘the Civil Court’) has filed this petition calling in question the order&nbsp; dated&nbsp; 05.03.2015.&nbsp; The&nbsp; suit&nbsp; in OS No.5079/2007 is filed by the first respondent for declaration that he is the absolute owner of the&nbsp; land and for declaration that the sale deeds dated 10.05.1986 and 06.09.1988 are non-est. The petitioner, who&nbsp; is&nbsp; subsequently&nbsp; impleaded&nbsp; as the ninth defendant along with other defendants, has filed application under Order VII rule 11(a) and (d) of the Code of Civil Procedure, 1908 (for short, ‘CPC’) for rejection of the plaint, and the Civil Court by the impugned order dated 05.03.2015 has rejected the application.</b></p><p><b>33. The suit is for declaration of title and declaration that the impugned sale deeds are non-est. The period of limitation for the suit would be the period prescribed under Article 58 Part III of the schedule to the Limitation Act. There is no dispute that the applicable provisions would be Article&nbsp; 58 of the Limitation Act. While it is argued on behalf of the ninth defendant that the cause of action for the suit, even if any, first accrued on the execution of the sale deed dated 10.05.1986 as contemplated under Article 58, it is argued on behalf of the plaintiff that the question of limitation is a mixed question of fact and law and in this case the cause of action first arose in the first week of&nbsp; the&nbsp; month of&nbsp; October 2006.&nbsp; The learned counsel for the plaintiff, without disputing the applicability of Article 58, emphasises that the question of limitation is always an amalgam of questions of fact and law, and therefore, the question of limitation cannot be examined&nbsp; at the threshold.</b></p><p><b>34. However, the Hon’ble Supreme Court in Dahiben v. Arvindbhai Kalyanji Bhansuali (2020) 7 SCC 366 has held as follows in paragraph 23.3</b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">\"The underlying objective Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule (d), the court would not permit the plaintiff to unnecessarily protracted proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation so that further judicial time is not wasted.\"</b></p><p><b>Even in Shakti Bhog Food Industries Ltd. v. Central Bank of India 2020 SCC Online SC 482 it is observed that clause (d)&nbsp; makes,&nbsp; “it&nbsp; clear that if the plaint does not contain necessary averments relating&nbsp; to limitation, the same is liable to be rejected.” As such, the question of limitation for the purposes of Order VII Rule 11(d) CPC cannot be refused to be considered in all cases on the ground that it would always be a mixed question of fact and law.</b></p><p><b>35.<span style=\"white-space:pre\">	</span>In the present case, it is not disputed that the provisions of Article 58 of Part III of the Schedule to the Limitation Act would apply. The cause of action for the challenge to the sale deed dated 10.05.1986 first arose&nbsp; with&nbsp; the execution and registration of such sale deed in the year 1986 and definitely in the year 1988 insofar as the other impugned sale deed dated 06.09.1988. The plaintiff’s contention that the cause of action first arose&nbsp; in the&nbsp; first&nbsp; week of the month of October, 2006 because he was in possession of the subject property without the knowledge of&nbsp; the sale deeds which were executed without his wife’s consent. This is despite stating that the revenue entry stood transferred in favour of the second defendant on the execution of the sale deed dated 06.09.1988. In the considered opinion of this Court, there is clever drafting to create an illusion of a cause of action and gloss over the fact that the suit was not commenced over a period of two decades from the date of the sale deed, i.e., when the cause of action first arose. This is obvious even from the reading of the plaint averments. As such, the plaint is also liable to be&nbsp; rejected under Order VII Rule 11(d) of CPC.</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '762915a1ed6bd068ceb9ab3f02adecb8.jpeg', 'c0057ada1a62830f45230ebf481979ed.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-21', 1, '', '', '2021-07-08 04:07:51', '2021-07-08 04:07:51'),
(879, 'qiJj430wF0jPm384AQ9zPHpsC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Parliamentary Standing Committees are an extension of the legislature itself and do informed work. Supreme Court dismisses Facebook plea challenging summons issued by the Committee.  ', '<p><b>Ajit Mohan and others vs Legislative Assembly, National Capital Territory of Delhi and others. </b></p><p><b>Writ Petition (C) 1088 of 2020 decided on 8 July 2021</b></p><p><b><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Justice Sanjay Kishan Kaul, Justice Dinesh Maheshwari and Justice Hrishikesh Roy</span></b></p><p><b><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Judgment Link: </span></b><a href=\"https://main.sci.gov.in/supremecourt/2020/20428/20428_2020_37_1501_28386_Judgement_08-Jul-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/20428/20428_2020_37_1501_28386_Judgement_08-Jul-2021.pdf</a></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">172. The committees are an extension of the legislature itself and do\r\ninformed work. Their significance has been exhaustively dealt with in\r\nKalpana Mehta126 which we have extracted hereinabove. US\r\nRepresentative James Shannon’s words were noted with approval in the judgment, recognising that “around the world there is a trend to move\r\ntoward reliance on committees to conduct the work of parliament, and\r\nthe greatest reason for this trend is a concern for efficiency.”\r\n127 It is not\r\npossible for us to accept the contention of the petitioners to create an\r\nartificial division between Assembly’s core/essential and non-essential\r\nfunctions, with any restrictive clauses being placed on the deliberations\r\nof the committees. Such water-tight compartmentalisation is not\r\nadvisable. Unless the committee embarks on a course completely devoid\r\nof its functional mandate specified by the Assembly, or the Assembly\r\nitself lacks jurisdiction to deal with the subject matter, we are of the view\r\nthat the widest amplitude must be given to the functioning of these\r\ncommittees. It is the parliamentary committee system that has been\r\nrecognised as a creative way of parliaments to perform their basic\r\nfunctions. The same principle would apply, even if it is to some extent\r\nbeyond their legislative domain. This is because they will not be able to\r\nmake any valid legislative recommendations in the absence of\r\ncompetence over the subject matter. However, they may debate aspects which may be a reflection of their sense and consequently the sense of\r\nthe House, if so adopted by the House.</b><br></p><p><b>209. In the aforesaid conspectus, while keeping in mind Article 212\r\nwhich restrains courts from inquiring into the proceedings of a\r\nlegislature, we must also note that a narrow scope of judicial review has\r\nalways been appreciated and understood. We are confronted with a\r\nsituation where the two legislative bodies are not on the same page as to\r\nwhat transpired and there is in a sense, a tug of war on the issue as to who\r\nwould look into what happened and what ought not to have happened. It\r\nis in this context that the learned Solicitor General emphasised the\r\ndoctrine of pith and substance to locate the power within the entries\r\nwhich have been taken out of List II and thus, seeks to block the inquiry\r\nby the Committee on aspects which are already covered under the three\r\nexcluded entries or under the I.T. Act.</b></p><p><b>211. The unfortunate communal riots between 24th and 29th February,\r\n2020 in various parts of Delhi, led to the death of 53 persons, caused\r\nsignificant damage to public and private property, disruptions to schools,\r\ntransport, water supply, medical and other civic amenities.146 The\r\ncomplexity of communal tensions and their wide-ranging ramifications is\r\na matter affecting citizens of Delhi and it cannot be said that the\r\nGovernment of NCT of Delhi cannot look into the causal factors in order\r\nto formulate appropriate remedial measures. Appropriate\r\nrecommendations made by the State Government in this regard could be\r\nof significance in the collaborative effort between the Centre and the\r\nState to deal with governance issues. It is in that context that this Court\r\nhad recognised that certain local interests are best addressed by the\r\nelected representatives of the concerned State:</b></p><p><b>Conclusion:\r\n</b></p><p><b>228. We have penned down our views on the issues raised by the\r\npetitioners, but in view of the elaborate arguments and length of the judgment, we consider it appropriate to summarise the ratio/directions in\r\nthe following terms:</b></p><p><b>\r\nI. There is no dispute about the right of the Assembly or the\r\nCommittee to proceed on grounds of breach of privilege per se.\r\n</b></p><p><b>II. The power to compel attendance by initiating privilege\r\nproceedings is an essential power.\r\n</b></p><p><b>III. Members and non-Members (like the petitioners) can equally\r\nbe directed to appear before the Committee and depose on oath.\r\n</b></p><p><b>IV. In the given facts of the case, the issue of privileges is\r\npremature. Having said that, the insertion of para 4(vii) of the Terms\r\nof Reference taken along with the press conference of the Chairman\r\nof the Committee could legitimately give rise to apprehensions in the\r\nmind of the petitioners on account of which a caveat has been made.\r\n</b></p><p><b>V. Canvassing a clash between privilege powers and certain\r\nfundamental rights is also preemptory in the present case.\r\n</b></p><p><b>VI. In any case, the larger issue of privileges vis-a-vis the right of\r\nfree speech, silence, and privacy in the context of Part III of the\r\nConstitution is still at large in view of the reference to the larger\r\nBench in N. Ravi. </b></p><p><b>VII. The Assembly admittedly does not have any power to legislate\r\non aspects of law and order and police in view of Entries 1 and 2 of\r\nList II in the Seventh Schedule inter alia being excluded. Further,\r\nregulation of intermediaries is also subject matter covered by the I.T.\r\nAct.\r\n</b></p><p><b>VIII. The Assembly does not only perform the function of legislating;\r\nthere are many other aspects of governance which can form part of the\r\nessential functions of the Legislative Assembly and consequently the\r\nCommittee. In the larger context, the concept of peace and harmony\r\ngoes much beyond law and order and police, more so in view of onthe-ground governance being in the hands of the Delhi Government.</b></p><p><b>IX. Para 4(vii) of the Terms of Reference does not survive for any\r\nopinion of the Committee. It will not be permissible for the\r\nCommittee to encroach upon any aspects strictly within the domain of\r\nEntries 1 and 2 of List II of the Seventh Schedule. As such, any\r\nrepresentative of the petitioners would have the right to not answer\r\nquestions directly covered by these two fields.\r\n </b><br></p>', '7d42bdcc5c3a00a0c6be8c8fa833951d.PNG', '2e0a5e1d711c9ca01019e14c4b1cf28a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-08', 1, '', '', '2021-07-09 01:31:05', '2021-07-09 01:33:33');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2747, 'FcA8ySrQLxR16ubH4xzYPdOov', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Power under section 24 of the CPC can be exercised by the High Court even for inter-State transfer of a suit, appeal or other proceeding, if it is the common High Court for two or more States. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shah Newaz Khan and others Vs State of Nagaland and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1497 of 2023 decided on 28 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hrishikesh Roy and Justice Dipankar Datta.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Shortly put, the issue is:\r\nIs the Supreme Court the sole repository of power in terms\r\nof section 25 of the Code of Civil Procedure (for brevity\r\n‘the CPC’) to direct transfer of a suit, appeal or other\r\nproceeding from a Civil Court in one State to a Civil Court\r\nin another State? Or, is it open for a High Court, if it is the\r\ncommon High Court for two or more States, to entertain <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">an application for transfer under section 24 of the CPC and\r\ntransfer a suit, appeal or other proceeding from a Civil\r\nCourt to another Civil Court, both of which are subordinate\r\nto such High Court but situate in different States in\r\nrelation to which it exercises jurisdiction, for consideration\r\nand decision?</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. The facts leading to presentation of this appeal reveal that\r\nthe appellants having instituted a suit for declaration of right,\r\ntitle and interest as well as for perpetual injunction and\r\ndamages in the court of the District Judge at Dimapur,\r\nNagaland sometime in 2007, failed to prosecute it in the right\r\nearnest allegedly due to hostile circumstances created by the\r\nprivate defendants in the suit resulting in dismissal and\r\nrestoration thereof on three occasions. Pleading why it is\r\nimpossible for them to continue with prosecution of the suit at\r\nDimapur, the appellants moved an application under section 24\r\nof the CPC before the Gauhati High Court for an order to\r\ntransfer the suit to the court of the District Judge at Guwahati, </span><span style=\"font-size: 12pt;\">Assam. A learned Judge of the Gauhati High Court, which\r\npresently happens to be the common High Court for the States\r\nof Assam, Nagaland, Mizoram and Arunachal Pradesh, presiding\r\nover the Bench at the principal seat at Guwahati, rejected the\r\napplication for transfer by a judgment and order dated 10th\r\nDecember, 2015. While so rejecting, the learned Judge followed\r\nHis Lordship’s previous decision in Pomi Sengupta vs.\r\nBiswajit Sengupta which, in turn, had entirely relied on the\r\ndecision of this Court in Durgesh Sharma vs. Jayshree . The\r\njudgment and order of rejection of the application under section\r\n24 of the CPC is under challenge in this appeal. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The appellants, by way of abundant caution, have also\r\napplied before this Court under section 25 of the CPC seeking\r\nthe same relief that was disallowed by the learned Judge.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>39. From the factual matrix vis-à-vis the Constitutional and\r\nstatutory provisions, there can be no cavil that the courts and\r\ntribunals in the States of Assam, Nagaland, Mizoram and\r\nArunachal Pradesh are not only under the superintendence of\r\nthe Gauhati High Court in terms of Article 227, all district courts\r\nand courts subordinate thereto in such States are subject to the\r\ncontrol of the Gauhati High Court under Article 235 as well as\r\nsubordinate to the same High Court in terms of section 3 of the\r\nCPC. Section 25 has been inserted in the CPC with a definite\r\npurpose of ensuring that no High Court transfers a suit, appeal\r\nor other proceeding pending in a Civil Court in one State to a\r\nCivil Court in another State. The reason for this is that the High\r\nCourt to which the application for transfer is made does have\r\nthe power in law to transfer a suit, appeal or other proceeding\r\nto a Civil Court subordinate to it but it does not have any power\r\nin law to transfer any of the above to a Civil Court which is\r\nsubordinate to another High Court. The same situation that\r\nDurgesh Sharma (supra) had to deal with, where the Civil\r\nCourts subordinate to the High Court of Madhya Pradesh and\r\nthe Bombay High Court were involved. This Court had the\r\noccasion to hold that if two courts are subordinate to different <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">High Courts, one High Court has no power, jurisdiction or\r\nauthority to transfer a case pending in any court subordinate to\r\nthat High Court to a court subordinate to another High Court\r\nand it is only the Supreme Court which may order the transfer.\r\nThe reason for such conclusion seems to be obvious that the\r\nHigh Court, to which an application for transfer is made, does\r\nneither enjoy any power of superintendence under Article 227\r\nover the Civil Court to which the transfer is sought nor can such\r\nCivil Court be said to be a court over which the High Court\r\nexercises any control of the nature referred to in Article 235.\r\nAlso, in such a case, the Civil Court beyond the territory in\r\nrelation to which the High Court exercises jurisdiction cannot be\r\nconsidered to be a court subordinate to such High Court in the\r\nsense section 3 of the CPC is to be understood.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>41. While focusing on section 25, one cannot be completely\r\noblivious of the terms of section 24(1)(b)(ii). As and when it is\r\napproached with an application under section 24 for transfer,\r\nthe High Court, subject to its satisfaction that the facts and\r\ncircumstances do warrant an order to be made, is empowered\r\nto “transfer … to any Court subordinate to it”. These words are\r\nof immense significance. In directing a transfer, the High Court\r\ncan transfer a suit, appeal or other proceeding to “any Court”\r\nbut bearing in mind the fetter that any such court, to which the\r\nrelevant case or matter is proposed or sought to be transferred,\r\nmust be subordinate to it and otherwise competent to deal with\r\nthe subject matter; if such court is either not subordinate or not\r\ncompetent, the power is not available to be exercised.\r\nHowever, there is no such fetter in section 24 that power under\r\nsub-clause (ii) of clause (b) of sub-section (1) thereof cannot be\r\nexercised if the transferee court, though subordinate to the\r\nHigh Court, is situate in a different State. Similar is the case <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">with clause (a) of sub-section (1) of section 24. The power is\r\navailable so long the Civil Court continues to remain\r\nsubordinate to it under Article 227 read with Article 235 and\r\nunder section 3 of the CPC. To this extent, the High Court\r\nenjoys a supreme power which is not even subject to the power\r\nof the Supreme Court under section 25. The only caveat is that\r\nthis power of transfer under section 24(1)(a) and 24(1)(b)(ii),\r\nhowever, cannot be exercised by the Gauhati High Court, say\r\nfor transfer of a civil suit from a court in Assam or Nagaland to\r\na Civil Court in Tripura or Manipur or Meghalaya because the\r\nsaid States, from 2012, are no longer part of the Gauhati High\r\nCourt and are since having High Courts of their own.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>43. The States of Assam and Nagaland by reason of the\r\nprovisions of the 1962 Act, then the 1971 Act and finally the\r\nAmendment Act have the Gauhati High Court as their common\r\nHigh Court and it is the Gauhati High Court that enjoys power of\r\njudicial superintendence over all courts within the territories of\r\nthese two States. Gauhati High Court also exercises\r\nadministrative control over all district courts and courts\r\nsubordinate to them. Although the States of Assam and\r\nNagaland in the political map of India have well demarcated\r\nareas, for the purpose of administration of justice, both States\r\nare mandatorily subject to the jurisdiction of the Gauhati High\r\nCourt. Having regard to the special nature of jurisdiction that is\r\nvested in a common High Court like the Gauhati High Court,\r\nthere cannot be a truncation of the power available under\r\nclauses (a) and (b) of section 24(1), which includes suo motu\r\npower.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>44. Secondly, we are inclined to the view that should the\r\ncontention advanced by Mr. Balgopal be accepted, the same is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">bound to lead to anomalous and incongruous results. If a\r\ncommon High Court, such as the Gauhati High Court, is\r\nsatisfied that a situation for withdrawing a civil suit from a\r\ncourt, say in Nagaland, does exist, section 24(1)(b)(i) of the\r\nCPC confers power on the Gauhati High Court to withdraw such\r\nsuit and dispose of the same itself. We are conscious that the\r\nverb employed in the first part of section 24(1)(b(i) is\r\n‘withdraw’ and not ‘transfer’; also, that clause (b) of subsection (1) of section 24 employs the verbs ‘withdraw’,\r\n‘transfer’ and ‘retransfer’ in the three sub-clauses for achieving\r\nthe specified ends. However, would it mean that withdrawal of\r\na case does never involve a transfer? The verb ‘transfer’, inter\r\nalia, means to move, or to make somebody/something move,\r\nfrom one place to another. Once, for whatever reason, the\r\nmovement of a file from one place to another is involved, may\r\nbe by reason of withdrawal, a transfer in the broader sense\r\ndoes take place. Now, the principal seat of the Gauhati High\r\nCourt being at Guwahati, in the State of Assam, were to\r\nexercise the power conferred by section 24(1)(b(i), the effect\r\nthereof upon such a withdrawal is that the suit would stand\r\ntransferred to the principal seat at Guwahati from the Civil </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court in Nagaland and, possibly, assigned a separate\r\nregistration number for the purpose of administrative\r\nconvenience, whereafter three options in terms of section 24(1)\r\n(b) are open to the High Court for further course of action for\r\ntaking the suit to its logical conclusion. Once the suit is\r\nwithdrawn from the court in Nagaland and placed before the\r\nHigh Court at its principal seat in Guwahati, Assam, would not\r\nthat be a case of an inter-State transfer? The answer cannot\r\npossibly but be in the affirmative. The other aspect requiring\r\nconsideration in this regard is whether disposal of the civil suit\r\nby the Gauhati High Court, if the same were withdrawn from\r\nthe subordinate court, constitute a transfer from one Civil Court\r\nto another Civil Court. The High Courts are Constitutional\r\nCourts and not a ‘Civil Court’ in the sense the term is\r\nunderstood, so to encompass a transfer from one Civil Court to\r\nanother Civil Court. However, if at all such a suit were\r\nwithdrawn and finally disposed of by the Gauhati High Court at\r\nits principal seat, it would necessarily be in the exercise of its\r\nordinary civil jurisdiction and the procedure to be followed\r\nwould undoubtedly be guided by the provisions of the CPC. In a\r\nsense, the High Court would step into the shoes of the Civil </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court from which the suit has been withdrawn. Could the\r\nprovisions in section 25 of the CPC, in such circumstances, be\r\ncited to abrogate the Constitutional and statutory power of the\r\nGauhati High Court to withdraw a civil suit from a Civil Court in\r\nNagaland and to decide the same? In course of hearing, we had\r\ninvited the attention of Mr. Balgopal to this situation and sought\r\nhis response. He could not have and rightly did not dispute that\r\nin such a situation, the power vested in the Gauhati High Court\r\nby the Constitution as well as the CPC cannot be abrogated.\r\nThus, exercise of the power that section 24(1)(b)(i) confers on\r\nthe Gauhati High Court in a given case, would ultimately entail\r\na transfer of the civil suit from the State of Nagaland to the\r\nHigh Court, having its principal seat at Guwahati in the State of\r\nAssam. Such a situation is not and cannot be controlled by\r\nsection 25, and on a harmonious reading of sections 24 and 25,\r\nit has to be held that section 25 does not in all cases fetter the\r\npower of a common High Court to order inter-State transfer of a\r\nsuit, appeal or other proceeding. Otherwise, it would be a\r\nfallacy to believe that while an inter-State transfer would be\r\npermissible in terms of sub-clause (i) but not sub-clause (ii) of\r\nclause (b) of sub-section (1) of section 24. We reiterate, section </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">25 would essentially have to be read as barring transfer of any\r\nsuit, appeal or other proceeding from a Civil Court in one State\r\nto a Civil Court in another State if such States have their own\r\nHigh Courts but not in the case of a common High Court like the\r\nGauhati High Court. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>46. Finally, in our opinion, an approach to construe section 25\r\nof the CPC has to be fair, pragmatic, reasonable and realistic.\r\nAny construction of section 25 which would impede “access to\r\njustice”, considered to be a Fundamental Right, has to be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">eschewed. A narrow interpretation of section 25 imposing a bar\r\nfor entertainment of an application under section 24 for\r\ntransfer of a suit, appeal or other proceeding by a common\r\nHigh Court like the Gauhati High Court inter-se the four States\r\nin relation to which it exercises jurisdiction could place a heavy\r\nburden and might pose an insurmountable obstacle for litigants\r\nof the far-flung areas of the North-East, if they were made to\r\napproach this Court for such transfer on the specious ground\r\nthat the Civil Court to which the same is proposed to be\r\ntransferred is in a State other than the State in which the suit\r\nhas been instituted. An interpretation of the law that seeks to\r\naddress the mischief, that is consistent with the Constitution\r\nand promotes constitutional objectives and that which responds\r\nto the needs of the nation must be adopted. If “access to\r\njustice” has to be real, it becomes the moral responsibility of\r\nthe Supreme Court, the supreme guardians/protectors of the\r\nrights of people guaranteed by the Constitution and the laws,\r\nnot to construe the substantive part in section 25 of the Code in\r\na pedantic manner to bring about a situation that would thwart\r\nthe initiative of making “access to justice” real.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>47. What remains is the contention advanced by Mr. Sharma.\r\nWe are not impressed, to say the least. Although sections 22 to\r\n25 of the CPC deal with transfers, sections 22 and 23 can be\r\ninvoked in situations of the nature contemplated in section 22\r\nby a defendant, and by none else, and the court which is\r\nempowered to entertain such an application is the court\r\nreferred to in section 23. Section 22, in our view, permits\r\ntransfer on application of the doctrine of forum conveniens and\r\nit has no applicability on facts and in the circumstances where\r\nthe application for transfer is at the instance of the plaintiffs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>48. In view of the aforesaid discussions, the issue is answered\r\nby concluding that:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) a true and proper interpretation of section 25 of the\r\nCPC leads us to the conclusion that the same applies\r\nto inter-State transfer of a suit, appeal or other\r\nproceeding where both States have a High Court in\r\nterms of Article 214 of the Constitution and not to a\r\ntransfer where both States have a common High\r\nCourt under Article 231 thereof; and</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) the power under section 24 of the CPC can be\r\nexercised by the High Court even for inter-State\r\ntransfer of a suit, appeal or other proceeding, if it is\r\nthe common High Court for two or more States under\r\nArticle 231 of the Constitution and both the Civil\r\nCourts (transferor and transferee) are subordinate to\r\nit.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The questions framed at the beginning of this judgment are\r\nanswered accordingly. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>49. The sequitur of this discussion, with respect, is that the\r\nGauhati High Court while rendering the judgment and order\r\nunder challenge proceeded on an erroneous approach, and\r\nsuch approach has also been found to be flawed in Megha Jain\r\n(supra). The impugned judgment and order being unsustainable\r\nin law has to be and is, accordingly, set aside and the civil\r\nappeal stands allowed. The Gauhati High Court shall now\r\nproceed to decide the application under section 24 of the CPC\r\nafresh, on its own merits.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>50. In view of the aforesaid order, the transfer petition under\r\nsection 25 of the CPC is rendered infructuous; hence, it stands\r\ndismissed</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>52. Parties shall bear their own costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2b621e6fbc210605fe2454e37c68489b.jpeg', 'e68033fa9d2db48fc714160e86f54858.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-02', 1, '', '', '2023-03-01 12:26:33', '2023-03-02 08:30:55'),
(881, 'psoNmOQSMG4u5odU6aGFFzzFZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Claim for back wages by an employee who intentionally delayed decision of Courts for long period is unjustified and condemnable. Supreme Court. ', '<p><b>The State of Uttar Pradesh and others vs Dr. Manoj Kumar Sharma.&nbsp;</b></p><p><b>Civil Appeal 2320 of 2021 decided on 9 July 2021.</b></p><p><b>Justice Sanjay Kishan Kaul and Justice Hemant Gupta</b></p><p><b>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2020/12097/12097_2020_37_1502_28343_Judgement_09-Jul-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/12097/12097_2020_37_1502_28343_Judgement_09-Jul-2021.pdf</a></b></p><p><b>14...The writ\r\npetitioner was relieved by the Government of Uttarakhand in 2003,\r\nhowever, he filed writ petition in 2006, meaning thereby for three&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">years, “he was awaiting posting orders”. Under the guise of awaiting posting orders, he started private practice and intentionally delayed the decision on the writ petition for almost 13 years. The writ petition was dismissed in default on 22.09.2008 and was restored on 11.12.2014. Such conduct of the writ petitioner suggests that he was not keen to join as a Medical Officer after he was relieved by the Government of Uttarakhand. The writ petitioner cannot take a stand that he had not received the order dated 06.03.2002. The order of Uttarakhand Government relieving him on 05.07.2003 is in pursuance of the order of the Government of Uttar Pradesh on 06.03.2002. It is a case of the feigned ignorance. Even if there is a practice that the Medical Officer report at the office of Director Medical Health Services is not a ground on the basis of which illegality can be permitted to be perpetuated. The option of posting would be available only if there are general transfers not in a case where the Medical Officers have been allocated to their parent state in view of the option exercised.</span></b></p><p><b>15. As noticed by the learned Single Bench in the third round, the writ\r\npetitioner was gainfully employed and it is impossible to imagine\r\nthat a Medical Officer would sit idle for 13 long years. Therefore,\r\nthe grant of 50% of back wages for the entire period would be\r\ngiving benefit of one’s own wrong who intentionally abstained from\r\nduty for 13 long years and now wants to take benefit of back wages\r\nas well. Such stand of the writ petitioner is not only unjustified but\r\nwholly condemnable. The State was remiss in not taking action.&nbsp;</b></p><p><b>21. The writ petitioner was posted at Badaun. He was to report at the\r\nplace of posting and after reporting at the place of posting, he\r\nshould have asked for transfer, if permissible, according to the\r\nrequirement of the State. But he could not have dictated the place\r\nof posting without even joining the place where he was first posted.\r\nTherefore, we find that the orders of the High Court dated\r\n05.03.2020 and 07.08.2019 are wholly unjustified, unwarranted,\r\narbitrary and illegal. The same are set aside and the appeal is\r\nallowed with no order as to costs.<br></b><br></p>', '982de6ab1d130816e90723753fbd0dd2.PNG', 'b3dc4422ee9d63ec1c3a77281df2cab3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-09', 1, '', '', '2021-07-11 23:17:17', '2021-07-11 23:17:17'),
(882, 'ZyrBRHYMQpTzCLPqdNjPMGNUV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Co-operative Federation making profit cannot be a ground for employees to claim higher wages. Entire profit cannot be appropriated towards the wages of the employees alone. Supreme Court. ', '<p><b>Punjab State Co-operative Milk Producers Federation Ltd and another vs Balbir Kumar and others. </b></p><p><b>Civil Appeal 7427 of 2011 decided on 9 July 2021.</b></p><p><b>Justice Sanjay Kishan Kaul and Justice Hemant Gupta </b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2009/31561/31561_2009_37_1501_28343_Judgement_09-Jul-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2009/31561/31561_2009_37_1501_28343_Judgement_09-Jul-2021.pdf</a></b></p><p><b>1. The present appeals are directed against an order passed by\r\nthe Division Bench of the High Court of Punjab & Haryana at\r\nChandigarh on 19.3.2009 whereby the writ petitions filed by\r\nthe respondents herein were allowed holding that the Punjab\r\nState Co-operative Milk Producers Federation Ltd. is a State\r\nwithin the meaning of Article 12 of the Constitution of India\r\nand that the employees are therefore entitled to pay scale\r\nequivalent to their counterparts in the State of Punjab.</b></p><p><b>19. In our country, there are broadly three sets of\r\nemployers such as employers in the organized sector like the\r\nIndustrial workers; secondly, Public Sector Undertakings\r\nincluding Boards and Corporations and all other\r\nestablishments, which meet the test of a State within the\r\nmeaning of Article 12 of the Constitution; and thirdly, Central\r\nor State Government employees.</b></p><p><b>50. ...Though the profits\r\nhad to be shared by the members of the Co-operative Society,\r\nbut the employees of the Federation are not its members. The\r\nincome generated by the Federation is not to be expanded\r\nonly on payment of salary but is also required for upgradation\r\nof technology, renovation and expansion of plants etc.\r\nTherefore, entire profit is not to be appropriated towards the\r\nwages of the employees alone. The Federation was\r\nestablished as a step towards white revolution. The objective\r\nof the Federation was not to give employment but to increase\r\nmilk production in the State. The employees are facilitators of\r\nthe employer to achieve such objective and thus demanding\r\nenhanced wages without considering the objective and\r\nfinancial condition of the employer would not be ideal. The\r\nemployer and the employees have to work together to\r\nachieve the objective of the organisation i.e. white revolution\r\nrather frittering away the gains made by the joint efforts of\r\nthe management and employees by giving increased wages to\r\nthe employees irrespective of its capacity to bear such expenses.</b></p><p><b>52. In view of the above, we find that the order of the High Court\r\nis unjustified and in excess of the power of judicial review\r\nconferred on the High Court. Consequently, the appeals are\r\nallowed. The orders passed by the High Court are hereby set\r\naside and the writ petitions are dismissed</b><br></p><p> </p>', '40f887fc6c591b146fd8028ebd68de6e.PNG', '9a66cce6bc1e51d656c700fe3928ec5a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-09', 1, '', '', '2021-07-12 00:11:22', '2021-07-12 00:12:03'),
(883, 'x5I8P6MQLnaNhSG87tsSZNNqi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Section 482.  Dismissal of an earlier petition is NOT a bar for filing subsequent petition in case the facts so justify.  Supreme Court.  ', '<p><b>Vinod Kumar vs Union of India and others.&nbsp;</b></p><p><b>Writ Petition(s)(Criminal) No(s). 255/2021 decided on 29 June 2021.</b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Justice Uday Umesh Lalit, Justice Indira Banerjee and Justice Ajay Rastogi.&nbsp;</b></p><p><b>The law on point as held by this Court in “Superintendent and\r\nRemembrancer of Legal Affairs, West Bengal Vs. Mohan Singh &amp; Ors.”\r\nreported in SCC (1975) 3 706 is clear that dismissal of an earlier\r\n482 petition does not bar filing of subsequent petition under\r\nSection 482, in case the facts so justify.\r\nNeedless to say that as and when any appropriate application\r\nunder the Code is preferred by the petitioner, the same shall be\r\ndealt with purely on its own merits without being influenced by\r\nthe dismissal of the instant writ petition.&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\"><br></b></p>', '463d2436441c4e2b3418f167808687b6.PNG', '5a973f7b5adc6e2b72919a9bf8b16cce.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-29', 1, '', '', '2021-07-12 00:28:56', '2021-07-12 00:28:56'),
(884, 'ElsrB7lQoFyqzayPeIxfXtSSf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'The Representation of People Act, 1951. No person can be added as a party to election petition after expiry of 45 days period of limitation. Non-joinder of necessary party results in dismissal of election petition. Karnataka High Court.  ', '<p><b>T.B.Jayachandra vs C.M. Rajesh Gowda and another </b></p><p><b>Election Petition 2 of 2020 decided on 18 June 2021.</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/393715/1/EP2-20-18-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/393715/1/EP2-20-18-06-2021.pdf</a></b></p><p><b>Learned counsel for the petitioner has filed a memo  dated 02.01.2021 requesting that the petitioner may be permitted to comply with the office objections and also to comply the provisions of Section 82 of the Representation of the People Act, 1950 and 1951 (hereinafter referred to as ‘R.P.Act’ for short) and Rule 94(A) of the Conduct of Election Rules, 1961, as required under the Rule and to meet the ends   of justice.</b></p><p><b>While addressing the question of impleadment of parties, the courts have held that it is not permissible under the  Code  of Civil Procedure to allow addition of any person as a party after the period of limitation. Recognizing this important feature more so in an election petition, in Chaturbhuj Vs. Election Tribunal, Kanpur and Another reported in AIR 1958 All 809, it was held that neither under the Representation of the Peoples Act nor under the Civil Procedure is it permissible for an Election Tribunal to allow the addition  of any person as a party who was necessary party  under Section 82 of the R.P.Act after the period of limitation. </b></p><p><b>The Indian Limitation Act of 1963 is an Act to consolidate and amend the law of limitation of suits and other proceedings and for purposes connected therewith. The provisions of this Act will apply to all civil proceedings  and some special criminal proceedings which can be taken in a  court of law unless the application thereof has been excluded  by any enactment: the extent of such application is governed  by Section 29(2) of the Limitation Act. It was therefore, held that the Limitation Act cannot apply to proceedings like an election petition inasmuch as the R.P.Act is a complete and self-contained code which does not admit of the introduction of the principles of the provisions of law contained in the Indian Limitation Act.</b></p><p><b>It is found that there is non-compliance of Section 82(a), inasmuch as, prayer (b) in the petition seeking to declare the petitioner as the Returned Candidate and all contesting candidates to  the election not being arrayed as parties, in terms of clause (1) of Section 86, the petition is required to be dismissed.</b></p><p><b>The Election Petition is accordingly, dismissed.</b></p><div><br></div>', 'ae5fc07a03c49203fd6f670f080b200d.jpg', '68051ce95000fabea0c03949cb50c732.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-18', 1, '', '', '2021-07-13 01:19:01', '2021-07-13 01:23:37'),
(885, 'vt8LymlivfjKf3StmSMUlPdwe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constitution of India. Writ jurisdiction. Though limitation is not strictly applicable to a petition filed under Article 226, nevertheless, such rights cannot be enforced after an unreasonable lapse of time. Karnataka High Court. ', '<p><b>M. Channabasappa vs The General Manager. </b></p><p><b>Writ Petition 711 of 2014 decided on 18 June 2021.</b></p><p><b>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/391647/1/WP711-14-18-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/391647/1/WP711-14-18-06-2021.pdf</a></b></p><p><b>16.<span style=\"white-space:pre\">	</span>It is germane to notice the latest judgment rendered by a Three Judge Bench of the Apex Court in the case of U.P.Power Corporation Ltd., Vs. Ramgopal&nbsp;</b><span style=\"font-weight: bolder;\">2020 SCC OnLine SC 101</span><b>&nbsp;specifically dealing with inordinate delay in filing the writ petition wherein the Apex Court has held&nbsp; as follows:</b></p><p><b>“iii) Inordinate delay in filing writ&nbsp; petition</b></p><p><b>14.<span style=\"white-space:pre\">	</span>Finally, the prolonged&nbsp; delay&nbsp; of many years ought not to&nbsp; have&nbsp; been&nbsp; overlooked or condoned. Services of the Respondent were&nbsp; terminated&nbsp; within&nbsp; months of his appointment, in 1978. Statedly, the Respondent made&nbsp; a&nbsp; representation&nbsp; and served UPPCL with a legal notice in 1982, however such feeble effort does little to fill the gap between when the cause of action arose and he chose to seek its redressal (in 1990).</b></p><p><b>15.<span style=\"white-space:pre\">	</span>Seen from a different perspective also, it is clear that the&nbsp; Respondent&nbsp; has&nbsp; shown little concern to the settled legal tenets. Even a civil suit challenging termination of services, if filed by the&nbsp; Respondent,&nbsp; would have undoubtedly been barred&nbsp; by&nbsp; limitation&nbsp; in 1990. In a similar situation where the appellant belatedly challenged the promotion of his junior(s), this Court in P.S. Sadasivaswamy v. State of Tamil Nadu1, held as follows:</b></p><p><b>“2. … if the&nbsp; appellant was&nbsp; aggrieved by&nbsp; it he should have approached the Court even in the year 1957, after the two representations made by him had failed to produce any result. One cannot sleep over the matter and come to the Court questioning that relaxation in the year 1971. … In effect&nbsp; he&nbsp; wants&nbsp; to unscramble a scrambled egg. It is very difficult for the Government to consider whether any relaxation of the rules should have been made in favour of the appellant in the year 1957.&nbsp; The conditions that were prevalent in 1957,&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">cannot be reproduced now. …It is not that there is&nbsp; any&nbsp; period&nbsp; of limitation for the Courts to exercise their powers under Article&nbsp; 226&nbsp; nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and&nbsp; allow&nbsp; things&nbsp; to happen and then approach&nbsp; the&nbsp; Court to put forward stale claims&nbsp; and try to unsettle settled matters……”</b></p><p><b>16.<span style=\"white-space:pre\">	</span>Whilst it is true that limitation does not strictly apply to proceedings under Articles 32 or 226 of the Constitution of India, nevertheless, such rights cannot be enforced after an&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">unreasonable lapse<span style=\"white-space:pre\">	</span>&nbsp;of time. Consideration of unexplained delays and inordinate laches would always be relevant in writ actions, and writ courts naturally ought to be reluctant in exercising their discretionary jurisdiction to protect those who have slept over wrongs and allowed illegalities to fester. Fence-sitters cannot be allowed to barge into courts and cry for their rights at their convenience, and vigilant citizens ought not to&nbsp; be&nbsp; treated&nbsp; alike&nbsp; with mere opportunists. On multiple occasions, it has been restated that there are implicit limitations of time within which writ remedies can be&nbsp; enforced.&nbsp; In&nbsp; SS&nbsp; Balu&nbsp; v.&nbsp; State of Kerala2, this Court observed thus:</b></p><p><b>“17. It is also well-settled principle of law that “delay defeats&nbsp; equity”.&nbsp; …It&nbsp; is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment.”</b></p><p><b>In terms of the law laid down by the Apex Court in the afore-extracted judgment, though limitation is not&nbsp; strictly applicable to a petition filed under Article 226 of the Constitution of India, nevertheless, such rights cannot be enforced after an unreasonable lapse of time and this Court naturally ought to be reluctant in exercising its discretionary jurisdiction to protect those who slept over wrongs and illegalities.</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'b50175e176c45aa7b4dbb6066255eaca.jpg', '7a9c4e24a4fffdd20e246207c673ae7f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-18', 1, '', '', '2021-07-13 01:57:59', '2021-07-13 01:57:59'),
(886, '9kWoii2TAuQ3XzaBfc3TgQ5zz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Penal Code. Proceedings under Section 188, disobedience to order duly promulgated by public servant, can be initiated only on a written complaint by the officer issuing promulgation or the officer above his rank. Karnataka High Court. ', '<p><b>Rajashekharananda Swamiji and another vs The State of Karnataka </b></p><p><b>Writ Petition 13328 of 2018 decided on 18 June 2021. </b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/11391/11391_2021_31_1501_28387_Judgement_12-Jul-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/11391/11391_2021_31_1501_28387_Judgement_12-Jul-2021.pdf</a></b></p><p><b>The Commissioner of Police, Mangalore city promulgated the prohibitory order<span style=\"white-space:pre\">	</span>from </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">6.00 a.m. to 6.00 p.m. of 08.12.2014 and prohibited assembling of five or more persons in Mangalore city. The accused persons violating such prohibitory order organized procession consisting 2000 persons belonging to Hindu Organization. When the complainant and his colleagues tried to prevent the accused from proceeding with the procession advising that, that is likely to create communal tensions, the accused obstructed the police from discharging their duties, crashed the barricades erected at the scene of offence, damaged the police vehicles and caused injuries to CWs.5 to 8.</b></p><p><b>6. The petitioners seek quashing of Annexures-A to Annexures-D on the ground that the prime offence was under Section 188 of IPC and Section 195 of Cr.P.C. bars taking cognizance of such offences, except upon the complaint as required under Section 200 of Cr.P.C, therefore the whole proceedings are without jurisdiction.</b></p><p><b>7. As rightly pointed out, Section 188 of IPC is the main offence. The other offences flow from that. Section 195(1)(a) of Cr.P.C. bars the Court to take cognizance of such offence unless in accordance with the procedure laid down therein. </b></p><p><b>8.. to take cognizance there should be a written complaint and such complaint should be filed either by the officer issuing such promulgation order or the officer above his rank. In the case on hand, as per the complaint itself, prohibitory order under Section 144 of IPC was promulgated by the Commissioner of Police and not the complainant.</b></p><p><b>9. Further Section 2(d) of Cr.P.C. defines complaint as allegations made orally or in writing to the Magistrate with a view to the Magistrate taking action on such complaint under the Code. Only on such </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">complaint, the Magistrate can take cognizance under Section 190(1)(a) of Cr.P.C. Thereafter the procedure prescribed under Section 200 of Cr.P.C. has to be followed. Therefore the first information report, charge sheet and the order taking cognizance on such charge sheet are without jurisdiction.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'c2d4fc0b4728e8fa2f15fe3f1265dd2b.jpg', '31740223388650bea75e55bf49ae75b3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-18', 1, '', '', '2021-07-13 03:10:52', '2021-07-13 03:15:19'),
(887, 'V6qVOGFC4HiLXTXr18mCjL4mf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Several offences forming part of same transaction under Section 195(1). If prosecution for the main offence is bad, it is not possible to split up and uphold prosecution for the other offences. Karnataka High Court. ', '<p><b>Rajashekharananda Swamiji and another vs The State of Karnataka</b></p><p><b>Writ Petition 13328 of 2018 decided on 18 June 2021.&nbsp;</b></p><p><b>The Commissioner of Police, Mangalore city promulgated the prohibitory order<span style=\"white-space:pre\">	</span>from 6.00 a.m. to 6.00 p.m. of 08.12.2014 and prohibited assembling of five or more persons in Mangalore city. The accused persons violating such prohibitory order organized procession consisting 2000 persons belonging to Hindu Organization. When the complainant and his colleagues tried to prevent the accused from proceeding with the procession advising that, that is likely to create communal tensions, the accused obstructed the police from discharging their duties, crashed the barricades erected at the scene of offence, damaged the police vehicles and caused injuries to CWs.5 to 8.</b></p><p><b>6. The petitioners seek quashing of Annexures-A to Annexures-D on the ground that the prime offence was under Section 188 of IPC and Section 195 of Cr.P.C. bars taking cognizance of such offences, except upon the complaint as required under Section 200 of Cr.P.C, therefore the whole proceedings are without jurisdiction.</b></p><p><b>7. As rightly pointed out, Section 188 of IPC is the main offence. The other offences flow from that. Section 195(1)(a) of Cr.P.C. bars the Court to take cognizance of such offence unless in accordance with the procedure laid down therein.&nbsp;</b></p><p><b>8.. to take cognizance there should be a written complaint and such complaint should be filed either by the officer issuing such promulgation order or the officer above his rank. In the case on hand, as per the complaint itself, prohibitory order under Section 144 of IPC was promulgated by the Commissioner of Police and not the complainant.</b></p><p><b>9. Further Section 2(d) of Cr.P.C. defines complaint as allegations made orally or in writing to the Magistrate with a view to the Magistrate taking action on such complaint under the Code. Only on such complaint, the Magistrate can take cognizance under Section 190(1)(a) of Cr.P.C. Thereafter the procedure prescribed under Section 200 of Cr.P.C. has to be followed. Therefore the first information report, charge sheet and the order taking cognizance on such charge sheet are without jurisdiction.</b></p><p><b>10. Then the question is Annexures-A to D get vitiated only so far as the offence under Section 188 of IPC. In para 8 of the judgment in State of Karnataka v. Hemareddy,</b><span style=\"font-weight: bolder; font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">&nbsp;(1981) 2 SCC 185</span><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">&nbsp;the Hon\'ble Supreme Court held as follows:</b></p><p><b>“8. We agree with the view expressed by&nbsp; the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a Court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld.”</b></p><p><b>11. Reading of the above judgment makes it clear that if the&nbsp; offences form part of same&nbsp; transaction of the&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">offences contemplated under Section 195(1) of Cr.P.C, then it is not possible to split up and hold that prosecution of the accused for the other offences should be upheld. Therefore the entire complaint, first information report, charge sheet and the order taking cognizance are liable to be quashed. The petition is allowed.</b></p><p></p><p><b>The impugned first information report, complaint, the charge sheet and the proceedings in C.C.No.3660/2016 are hereby quashed.</b></p><div><br></div><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'ef99fa6699f8e8efc7da8915681a3b33.jpg', '904cb98914ae67c19a99f590630ced9e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-18', 1, '', '', '2021-07-13 03:31:43', '2021-07-18 19:16:11');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(901, 'fD2D8hR4It9ZYNIjoeyVl6AHL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Lokayukta Act, 1984. Section 7(2-A). When Lokayukta conducts inquiry and submits report to Government, it is NOT necessary to give opportunity of being heard to persons named in the report. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"text-align:justify;line-height:150%\"><font face=\"Verdana, sans-serif\"><b>The Hon’ble Lokayukta and another vs Prakash T.V. and another.&nbsp;</b></font></p><p class=\"MsoNormal\" style=\"text-align:justify;line-height:150%\"><font face=\"Verdana, sans-serif\"><b>Writ Petition 29212 of 2017 decided on 29 June 2021</b></font></p><p class=\"MsoNormal\" style=\"text-align:justify;line-height:150%\"><font face=\"Verdana, sans-serif\"><b>Justice Satish Chandra Sharma and Justice Nataraj Rangaswamy&nbsp;</b></font><br></p><p class=\"MsoNormal\" style=\"text-align:justify;line-height:150%\"><b><font face=\"Verdana, sans-serif\">Judgment Link: </font><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/394108/1/WP29212-17-29-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/394108/1/WP29212-17-29-06-2021.pdf</a></b></p><p class=\"MsoNormal\" style=\"text-align:justify;line-height:150%\"><b style=\"font-size: var(--cui-font-size-base, 1rem); font-family: Verdana, sans-serif;\">NOTE: In this case, the State Government, under Section 7(2-A) of the Karnataka Lokayukta Act had referred the issue of illegal mining in the State to the then Hon’ble Lokayukta, Sri. Santosh Hegde, who, after investigation, submitted a detailed report to the Government. The said report named a number of Government officials, against whom, departmental proceedings were initiated on the basis of the report.&nbsp;</b></p><p class=\"MsoNormal\" style=\"text-align:justify;line-height:150%\"><font face=\"Verdana, sans-serif\"><b>The specific issue in this case was whether the persons named in the report ought to have been given a hearing prior to submission of the report. In B.S. Yediyurappa v. Lokayukta of Karnataka, ILR 2012 KAR 1879, a Division Bench of the Hon’ble High Court observed that the Lokayukta is a quasi-judicial authority and that when important rights of parties are being adjudicated, the rules of natural justice must be followed even prior to submission of a report pursuant to a reference being made under Section 7(2-A).&nbsp;</b></font></p><p class=\"MsoNormal\" style=\"text-align:justify;line-height:150%\"><font face=\"Verdana, sans-serif\"><b>The Bench in this case, however, distinguished the above case and held that there is no requirement for the persons named in the report to have been provided an opportunity of hearing prior to submission of the report. The above observation was made in the context of the fact that the statutory provisions of Section 7(2-A), read with Section 9 of the Act, do not contemplate the provision of a hearing and, therefore, such a requirement cannot be read into the provisions. The Court also observed that after the initiation of departmental proceedings, the officials had a right to be heard, which was provided by way of issuance of show-cause notices, which protected their rights of natural justice.&nbsp;</b></font></p><p class=\"MsoNormal\" style=\"text-align:justify;line-height:150%\"><font face=\"Verdana, sans-serif\"><b>The Court, accordingly, allowed the writ petition filed by the Hon’ble Lokayukta, observing that it was a sorry state of affairs that despite the lapse of nearly a decade since the submission of a detailed report by Sri, Santosh Hegde, proceedings were still pending. The Court, therefore, directed that the departmental proceedings should be completed in a time bound manner.</b></font></p><p class=\"MsoNormal\" style=\"text-align:justify;line-height:150%\"><br></p>', '60cfe4015a3aae5a090200faa68f69f0.PNG', 'a677eff0e7cc57647558c2c7b89533c7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-29', 1, '', '', '2021-07-19 02:00:06', '2021-07-19 02:04:11'),
(888, 'JYiSNHwpns5P4brHWFIKg4qWy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Court can NOT refer a case relating to non-compoundable offence to Lok Adalat and Lok Adalat has no jurisdiction to determine such case. Karnataka High Court. ', '<p><b>State of Karnataka vs Shekhar</b></p><p><b>Writ Petition 46821 of 2016 decided on 11 June 2021.</b></p><p><b>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/390258/1/WP46821-16-11-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/390258/1/WP46821-16-11-06-2021.pdf</a></b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\"></b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">“Whether the Court can refer a case relating to non-compoundable offence to Lok Adalat and Lok Adalat has jurisdiction to determine such case”? are the questions involved in this case.</b><br></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">9. Which matter can be referred to Lok Adalat and the Lok Adalat has jurisdiction over which matters is enumerated in Sections 19 and 20 of the Act.&nbsp;</b></p><p><b>10. Reading of the above provisions makes it clear that Lok Adalat has no jurisdiction in respect of the case relating to non compoundable offence.</b></p><p><b>11. Section 20 of the Act speaks to cognizance of the cases by Lok Adalats and cases which are fit for reference.&nbsp;</b></p><p><b>12.<span style=\"white-space:pre\">	</span>Reading of Section 20(1)(ii) of the Act and the proviso to the said section makes it clear that Court can refer a case to Lok Adalat only if the same is appropriate. Again what is appropriate case depends on the fact whether Lok Adalat can take cognizance of such offences and has jurisdiction to decide the same. Proviso to Section 19(5) of the Act bars the jurisdiction of Lok Adalat over a case relating to a non compoundable offence. Therefore the logic of the law is that Court cannot refer a case involving non compoundable offence to the Lok Adalat.</b></p><p><b>13. The Hon\'ble Supreme Court in para 40 of the judgment in United India<span style=\"white-space:pre\">	</span>Insurance Co.<span style=\"white-space:pre\">	</span>Ltd.<span style=\"white-space:pre\">	</span>v. Ajay Sinha (2008) 7 SCC 454 referred to supra held that the offence which is non- compoundable in nature falls outside the jurisdiction of permanent Lok Adalat.</b></p><p><b>18. Neither the trial Court nor the Lok Adalat has recorded the admission of the plea of the guilt of the accused as required under the Criminal Procedure Code. Since Lok Adalat has no jurisdiction to take cognizance, the alleged plea of guilt before the Lok Adalat has no sanctity in the eye of law.</b></p><p><b>For the aforesaid reasons, the petition is allowed. The impugned order of reference dated 07.04.2014 in C.C.No.201/2013 passed by the trial Court and the award of the Lok Adalat as per Annexure-C are hereby quashed. C.C.No.201/2013 is restored to the file of the trial Court. The trial Court shall secure the presence of the accused and adjudicate the matter in accordance with&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">law.</b></p><div><br></div>', 'adc0cc9a1255985e51c25c0b29b7ffba.jpg', 'ada9056fe9b465c752ae3a9ca1b6523c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-11', 1, '', '', '2021-07-14 01:21:20', '2021-07-14 01:21:20'),
(889, '3CbRZkcIke1cF5Hqv6BTHIRBH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SARFAESI Act, 2002 & Civil Procedure Code, Order 7 Rule 11. Suit for specific performance making Bank also as defendant. Plaint can NOT be rejected only against the Bank. Karnataka High Court. ', '<p><b>M.V.Umamaheshwar Reddy and another vs M.Nirmala and others. </b></p><p><b>Civil Revision Petition 122 of 2015 decided on 15 June 2021. </b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/391198/1/CRP122-15-15-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/391198/1/CRP122-15-15-06-2021.pdf</a></b></p><p><b>The petitioners in this writ petition calls in question an order dated 24.06.2014 by which, the trial Court allowed the application in I.A.No.VII filed under Order 7 Rule 11 of the Code of Civil Procedure (for short ‘CPC’) for rejection of the plaint on the ground that the trial Court lacked inherent jurisdiction to entertain the suit insofar as it pertained to the fourth respondent - Bank, more so, on the ground that the provisions of Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the ‘SURFAESI Act, 2002’ for short) bars the jurisdiction of the trial Court.</b></p><p><b>4. Sri.S.Basavaraj, learned counsel representing the petitioners would vehemently argue and contend that the  order  of the trial Court entertaining an application filed by the fourth respondent - Bank and deleting it from the array of parties is on the face of it erroneous. He would place reliance upon the judgment of the Apex court in the case of Madhav Prasad Aggarwal and another vs Axis Bank Limited and another reported in (2019) 7 SCC 158. </b></p><p><b>\"12.Indubitably, the plaint can  and  must  be rejected in exercise of powers under Order 7 Rule  11(d) CPC on account of non-compliance with mandatory requirements or being replete with any institutional deficiency at the time of presentation of the plaint, ascribable to clauses (a) to (f) of  Rule 11 of  Order 7 CPC.  In other words,  the  plaint as  presented  must proceed  as a whole or can be rejected as a whole but not in part. In that sense, the relief claimed by Respondent  1  in  the  notice of motion(s) which commended to  the  High Court,  is clearly a jurisdictional error. The fact that one or some  of the reliefs claimed against Respondent 1 in the suit concerned is barred by Section 34 of the 2002 Act or otherwise, such objection can be raised by invoking other remedies including under Order 6 Rule 16 CPC at the appropriate stage. That can be considered  by  the  Court on its own merits and in accordance with law. Although,</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\"> the High Court has examined those matters in the impugned judgment the same, in our opinion,  should  stand effaced and we order accordingly.</b></p><p><b>14.<span style=\"white-space:pre\">	</span>A fortiori, these appeals must succeed on  the sole ground that the principal relief claimed in the notice of motion filed by Respondent 1 to reject the plaint only qua the said respondent and which commended to the High Court, is replete with jurisdictional error. Such a relief “cannot be entertained” in exercise of power under Order 7 Rule  11(d) CPC.  That power is  limited  to rejection of the plaint as a whole or not at all.\"</b></p><p><b>Therefore, the Civil  Revision Petition deserves to succeed. For the aforesaid reasons, I pass the following:</b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">(i)<span style=\"white-space:pre\">	</span>The Civil Revision Petition is allowed.</b></p><p><b>(ii)<span style=\"white-space:pre\">	</span>The impugned order dated 24.06.2014 passed in I.A.No.VII in O.S.No.128/2018 by the Senior Civil Judge & JMFC, Doddaballapur is quashed.</b></p><p><b>(iii)<span style=\"white-space:pre\">	</span>The fourth respondent- Bank shall be retained as a party- defendant in the proceedings.</b></p><p><br></p>', '0c2b46920c6911bf010927d00c844832.jpg', '2ab31a40339779ca3fe54b4b4b30422b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-15', 1, '', '', '2021-07-14 01:45:55', '2021-07-14 01:54:44'),
(890, 'mgv4ybZNuuCQkknxUy6MhOJck', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. When written statement is not filed, the court cannot straightway decree the suit. Court must carefully consider ex-parte evidence and give adequate reasons for its judgment. Karnataka High Court. ', '<p><b>State of Karnataka and others vs Sr. Seebi Narasimhaswamy Temple and another.&nbsp;</b></p><p><b>Regular First Appeal 568 of 2012 decided on 7 July 2021.&nbsp;</b></p><p><b>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/394397/1/RFA568-12-07-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/394397/1/RFA568-12-07-07-2021.pdf</a></b></p><p><b>Justice S Sujatha and Justice E.S.Indiresh</b></p><p><b>This appeal is filed by the defendants-State of Karnataka challenging the judgment and decree dated 17.12.2011 passed by the learned Addl. Senior&nbsp; Civil Judge and C.J.M., at Tumkur whereby O.S.No.10/2011 filed by the plaintiffs has been decreed.</b></p><p><b>31.<span style=\"white-space:pre\">	</span>Under the scheme of the Code of Civil Procedure no doubt the parties are required to address their evidence before the Trial Court but in certain exceptional circumstances additional evidence can be adduced before the appellate Court, as provided under order 41 rule 27 of the code.&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">In Union of India Vs. Ibrahim Uddin and another&nbsp; reported&nbsp; in&nbsp; (2012)8&nbsp; SCC&nbsp; 148,&nbsp; this&nbsp; Court&nbsp; has held as under:</b></p><p><b>“ 49. An application under Order XLI Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find whether the documents and/or the evidence sought to be&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">adduced have any relevance/bearing on the issues involved. The&nbsp; admissibility&nbsp; of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the Appellate Court requires the evidence sought&nbsp; to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced……”</b></p><p><b>35. In the case of Corporation of Madras and another vs. M. Parthasarathy and others reported in (2018) 9 SCC 445, the Hon’be Apex Court has held that once additional evidence is permitted at appellate stage, other side must be given opportunity to lead rebuttal evidence to counter additional evidence. Appellate courts have two options viz., (i) to take recourse remanding entire matter under Order 41 Rule 23-A for retrial, or (ii) to make limited remand under Order 41 Rule 25 by retaining main appeal with itself so that parties can lead evidence on particular issues in light of additional evidence and then to decide main appeal on merits.</b></p><p><b>40.<span style=\"white-space:pre\">	</span>The aforesaid would indicate that the matter was disposed of, by the Trial Court, in&nbsp; a&nbsp; hurried manner. Even Notice under Section 80 of CPC was dispensed with without valid reasons. No doubt, there is some callousness on the part of the defendants in not filing the written statement on the dates fixed, atleast some reasonable opportunity would have been provided to cross-examine the plaintiffs, having regard to the nature of the suit and the public interest involved. The Trial Court even accepting the plea of the plaintiffs is required to give adequate reasons though based on ex parte evidence which is apparently lacking herein. The approach of the Trial Court is wholly erroneous, merely because there is no rebuttal evidence, plea of the plaintiffs cannot be blindly accepted. The impugned judgment and decree suffers from infirmity and is&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">against the fundamental principles of natural justice,&nbsp; the same is not sustainable in the eye of law.</b></p><p><b>42.<span style=\"white-space:pre\">	</span>Before parting, we would like to observe that the Government Officers and the Government Pleader representing the Government are discharging the functions of the Government which involves the larger interest of the public. Fairness, discipline, dedication, sincerity and integrity are the hallmark qualities for a Government Officer/Government Advocate. Government Advocate being the Law Officer of the Court has to assist the Court for the effective adjudication of the dispute. Safeguarding the rights and interest of the Government is sine quo non for the Government Officers. Having regard to the nature of the litigation,&nbsp; the defendants ought to have been more cautious in defending the matter. There is default on the part of the defendants in not defending the matter by filing the written statement and cross-examining the&nbsp; plaintiffs. For the default committed by the defendants, the public interest at large should not suffer. Hence,&nbsp; the&nbsp; costs&nbsp; shall be recovered from defendant Nos.2 to 4, the officers during the relevant period. State Government has to take appropriate action against such erring officers.</b></p><p><b>iii)<span style=\"white-space:pre\">	</span>The matter is remanded to the Trial Court along with I.A.No.2/2020 reserving liberty to the defendants to file the written statement within a period of four weeks from the date of receipt of the certified copy of the order.</b></p>', '6bae85a6a4ca442e4d1a3b2b2cb60163.PNG', 'e59899a5144b36d9332e63240661e816.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-07', 1, '', '', '2021-07-14 02:20:47', '2021-07-14 02:22:34'),
(891, 'IVr40pamyJwESPrk7VMyFlspl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'No child is born in this world without a father and mother. A child has no role to play in his-her birth\'. Karnataka High Court orders compassionate appointment to children born out of void or voidable marriage. ', '<p><b>K.Santosha vs The Karnataka Power Transmission Corporation Limited. </b></p><p><b>Writ Appeal 2495 of 2019 decided on 24 June 2021. </b></p><p><b>Justice B.V.Nagarathna and Justice Hanchate Sanjeevkumar  </b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Judgment Lin: <a href=\"https://karnatakajudiciary.kar.nic.in/judgements/WA-2495-2019-Dtd-24062021.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/WA-2495-2019-Dtd-24062021.pdf</a></b><br></p><p><b>56. Of course, it is for the Parliament to legislate on\r\nthe conferment of legitimacy on children born out of the\r\nvoid or voidable marriages under the personal law other\r\nthan the Hindu Marriage Act and the Special Marriage Act, 1954, as under these two enactments such legitimacy is\r\nconferred. But, for the limited purpose of this case, we\r\nfind that children born out of void and voidable marriages\r\nunder other personal laws, where there is no provision for\r\nconferment of legitimacy, must also have equal protection\r\nof the law by treating them on par with children born out\r\nof void and voidable marriages under the Hindu Marriage\r\nAct or the Special Marriage Act, 1954, insofar as the\r\nappointment on compassionate basis is concerned, as\r\ninterpreted by us, under the Regulations under\r\nconsideration and in light of the judgment of the Hon’ble\r\nSupreme Court in V.R.Tripathi. </b></p><p><b>57. We add that no child is born in this world\r\nwithout a father and a mother. A child has no role to play\r\nin his/her birth. Hence, law should recognise the fact that\r\nthere may be illegitimate parents, but no illegitimate\r\nchildren. Therefore, it is for the Parliament to bring about\r\nuniformity in law vis-à-vis legitimacy of children. Thus, it\r\nis for the Parliament to determine in what way protection\r\ncould be extended to children born outside a valid\r\nmarriage. </b></p><p><b>58. On the aspect of circulars issued under various\r\nstatutes by the concerned Government Departments,\r\nlearned Additional Government Advocate, Smt.Vani H.\r\n(who is present in Court) by way of assistance to the Court\r\nbrought to our notice the judgment of the Hon’ble\r\nSupreme Court in the case of Commissioner of Central\r\nExcise, Bolpur vs. Ratan Melting & Wire Industries\r\n[(2008)13 SCC 1], wherein it has been observed as\r\nunder:\r\n</b></p><p><b>“7. Circulars and instructions issued by the\r\nBoard are no doubt binding in law on the\r\nauthorities under the respective statutes, but\r\nwhen the Supreme Court or the High Court\r\ndeclares the law on the question arising for\r\nconsideration, it would not be appropriate for\r\nthe court to direct that the circular should be\r\ngiven effect to and not the view expressed in a\r\ndecision of this Court or the High Court. So far\r\nas the clarifications/circulars issued by the\r\nCentral Government and of the State\r\nGovernment are concerned they represent\r\nmerely their understanding of the statutory\r\nprovisions. They are not binding upon the\r\ncourt. It is for the court to declare what the\r\nparticular statutory provisions has really no existence in\r\nlaw.” </b></p><p><b>59. Therefore, in the instant case, when we have\r\ninterpreted the Regulations, the Circular - which is\r\ncontrary to the interpretation of the Regulations made by\r\nus, cannot be binding on the parties.</b></p><p><b>61. The appeal is allowed in the aforesaid terms.\r\nThe respondents herein are directed to consider the\r\napplication made by the appellant herein in accordance with the observations made above and in accordance with\r\nlaw. The said consideration shall be made within a period\r\nof two months from the date of receipt of certified copy of\r\nthis judgment, as the employee died on 10.06.2014 which\r\nwas seven years ago.\r\nParties to bear their respective costs. </b><br></p>', '86ef58b185a6968ef417e188edb74826.png', '385617416a9a7583514390b161117d07.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-24', 1, '', '', '2021-07-15 01:46:06', '2021-07-15 01:48:45'),
(892, 'eWkUtPXgjJN3aZLmaJnwQkOmC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bank loans. One Time Settlement. Once the OTS payment is made by the principal borrower, the surety is also discharged. Law on One Time Settlement discussed. Karnataka High Court.', '<p><b>Manne Guru Prasad vs M/s. Pavaman Ispat Private Limited and others. </b></p><p><b>Writ Appeal 100103 of 2021 decided on 13 July 2021. </b></p><p><b>Justice Krishna S Dixit and Justice Pradeep Singh Yerur.</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/394887/1/WA%20100103-21-13-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/394887/1/WA%20100103-21-13-07-2021.pdf</a><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\"></span></b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">The appeal in W.A. No.100103/2021 is by the auction purchaser of the mortgaged properties that secured the repayment of the loans in question; the companion appeal in W.A.No.100109/2021 is by the surety; both these Intra-Court appeals seek to lay a challenge to the Judgment & Order dated 06.04.2021 rendered by a learned Single Judge of this Court in borrower’s W.P. No.100312/2021 (GM-RES) whereby he has been handed relief; in re. the breach of OTS terms: the respondent-Canara Bank’s letter dated 27.01.2021 whereby the OTS offer was withdrawn having been quashed, a direction has been issued to give effect (to accept) to the OTS offer dated 22.01.2021 wherein a sum of Rs.15.20 crore was offered.</b></p><p><b>(I) A BRIEF LEGAL POSITION AS TO OTS SCHEMES:</b></p><p><b>(i) The field of banking business is occupied by several legislations and the Rules/Regulations promulgated thereunder; the Reserve Bank of India Act, 1934, the Banking Regulation Act, 1949, The Recovery of Debts and Bankruptcy Act 1993, SARFAESI Act, 2002, are a few to name; the RBI is a watchdog of finance & economy of the nation, apart from being the prime banking institution of the country; it is conferred with the authority of issuing binding directions inter alia to the Public Sector Banks vide Central Bank of India V. Ravindra 2002 (1) SCC 367; the  One Time Settlement Schemes obtaining in the Banks & Financial Institutions are governed by the Guidelines issued by the RBI under Sections 21 & 35A of the 1949 Act; the Banks are bound by the same under Section 21(3).</b></p><p><b>(ii) These OTS Schemes having statutory force require the prescription of time lines for making the </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">payments as agreed; time schedules which are stipulated consensually by the bank & the borrower are the essential terms of bargain and ordinarily cannot be altered, subject to all just exceptions; normally, OTS facility being a statutory concession, and eventually result in some loss of public money; the borrowers are bound to honour the agreed terms OTS and the breach thereof entitles the Banks to rescind the facility, and recall the entire loan too; the schemes of the kind are intended to get back the debts (minus the concession granted) to the lender institutions swiftly & without much complication; loanees are also benefited to the extent of differential of the amount offered in the OTS and the amount otherwise actually payable by them.</b></p><p><b>(iii) There is a duty cast on the banks and financial institutions to ensure that the operation of OTS schemes would not cause avoidable loss of public money and therefore the concessions given in the form are reasonable; whilst operating the OTS Schemes, they have to practice principles of non-discrimination, fairness & reasonableness, vide Sardar Associates V. Punjab & Sind </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Bank, (2009) 8 SCC 257; in adjudging the validity of coercive actions such as auctioning taken by the Banks for recovering the loans on the failure of the borrower to adhere to OTS terms, the dominant consideration is securing of best price, vide KSIID Corporation Ltd. Vs. Cavalet India Limited (2005) </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">4 SCC 456; the actions of the bank falling short of these standards obtaining in the realm, even in contractual matters of the kind, may run the risk of invalidation.</b></p><p><b>(iv) The loan transactions entered into between the Bank & borrower are essentially a matter of contract, is undisputable; even then, the extant RBI Guidelines under which the OTS Schemes have been evolved, regulate the repayment of loans as per the terms agreed; the Public Sector Banks being the instrumentalities of ‘State’ under Article 12 of the Constitution, their actions/inactions even when filled with contractual elements, are liable to suffer a restrictive judicial scrutiny under Articles 226 & 227, depending upon the facts & circumstances of each case, is also true.</b></p><p><b>(ii) The OTS Schemes are in the nature of an apology to the basic norm on which the law of contract is founded: pacta sunt servanda (ascribed to Hugo Grotius, a 17th Century Dutch Jurist) which means “do, as agreed”; the norm requires that the debtor should repay the debt as per the terms of loan agreement; these schemes are by their very nature & effect a concession that mainly benefit the defaulting borrowers; not the ideals of social contract, but the realities gained through the experience of life dictate formation of such policies; a person who avails the concession, cannot later turn around and seek alteration of the terms subject to which such </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">concession was granted in accordance with the statutory schemes like the OTS; an argument to the contrary, subject to all just exceptions, would be unconscionable; ordinarily, the Writ Courts do not grant relief where the grounds for prayer are tainted with unconscionability.</b></p><p><b>(iii)<span style=\"white-space:pre\">	</span>In matters between the banker & borrower, a Writ Court has no much say except in two situations: where there is a statutory violation on the part of the bank/financial institution, or where the bank acts unfairly/unreasonably; Courts exercising constitutional jurisdiction u/A 226 do not sit as Appellate Authorities over the acts & deeds of the bank and seek to correct them; even the doctrine of fairness/reasonableness does not convert the Writ Courts into appellate authorities over administrative decisions concerning the banking business; unless the action of the bank is apparently malafide, even a wrong decision taken by it cannot be interfered.</b></p><p><b>(iv)<span style=\"white-space:pre\">	</span>It is not for the Court or a third party to substitute it’s decision howsoever prudent or business like it may be, for the decision of the bank; in commercial matters, the Courts do not risk their judgments for the </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">judgments of the bodies to which that task is assigned; a Public Sector Bank or a Financial Institution cannot wait indefinitely to recover its dues; the fairness required of the bank cannot be carried to the extent of disabling it from recovering what is due; in matters of loan transactions, fairness cannot be a one-way street; both the bank & the borrower have to be equally fair to each other; nearly, thus said the Apex Court in Cavalet India (Supra); these observations equally apply to the appeals at our hands.</b></p><p><b>(IV)<span style=\"white-space:pre\">	</span>LOCUS STANDI OF SURETY TO MAINTAIN APPEAL:</b></p><p><b>(i) The liability of the surety is co-extensive with that of the principal borrower, edicts Section 133 of the Indian Contract Act, 1872; such liability is co-terminus as well; Mr. Holla is right in contending that once the OTS payment is made, the surety too is discharged; when the law of contract was enacted during the Colonial Regime about a century & half ago, the proposition was as simple as it was stated; but, now the matter has become a bit complex; some implications ensue from the intervening legislation namely, the  Credit  Information  Companies  (Regulation) Act, 2005; the loan transaction culminating in the availment of OTS facility and its subsequent rescinding by the lender bank arguably constitute a ‘credit information’ as defined u/s 2(d) of the Act; the guarantor of loan </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">answers the inclusive definition of ‘client’ given u/s 2(c); </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">similarly the borrower fits in Section 2(b) and the banker, in the definition of ‘credit institution’ given u/s 2(f); the surety arguably suffers an adverse ‘credit scoring’ as defined u/s 2(g); thus, the surety has some legal stake in the OTS deals, more particularly when the letter containing the OTS offer was officially marked to him, as well.</b></p><p><b>(ii) However, the above having been said, there is no contract between the borrower and the surety for protecting the arguable ‘credit scoring’ of the later; a surety is entitled to the protection of credit scoring so that he will not be disfavoured when he goes to other banks for borrowing, is understandable; having this in mind, presumably, the surety had made the representation alarming the bank that the auction of mortgaged property would fetch more money than the OTS offer; he had moved the Writ Court too; he himself has come up with an offer of Rs.23 crore before us; this is about Rs.8 crore more than the last OTS offer; however a caveat needs to be entered: the right of contribution which the surety may have qua the borrower may not exceed the value of the said OTS offer; we hasten to add that we have not</b></p><p><b>(ii) After all, these equity-born-doctrines are not a one-way traffic; equity seeker himself has a duty to be equitable to the other side; this is how the Apex Court alerted the writ courts in Cavalet India case (supra); despite grating opportunity the borrower did not come forward with the revised offer, whereas the appellants did; where the public money is involved, a Writ Court has to assume a realistic role of a trustee in ensuring that the public money is not lost in the conundrums of constitutional contentions; Courts have to have a pragmatic approach when matters touching economics are brought before them for adjudication.</b></p><p><b>In the above circumstances, we make the following:</b></p><p><b>ORDER</b></p><p><b>(i) Both these appeals succeed in part; the impugned Judgment & Order made by the learned Single Judge are set at naught; Writ Petition No.100312/2021 of the borrower, is dismissed;</b></p><p><br></p>', '40fa5c4db0b0ece17235da5b79e1c18c.jpeg', '1a9e1593052ca03370af43b45aead542.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-13', 1, '', '', '2021-07-16 02:51:54', '2021-07-16 02:52:22'),
(893, 'lr4xnCxVtwqC9Q0wbE4zXdEvE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996.  Consideration of application within three months is mandatory. Delay results in payment of damages to applicant. Karnataka High Court. ', '<p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Hruthik N and another vs The Deputy Director of Public Instructions and others.&nbsp;</b><br></p><p><b>Writ Petition 2564 of 2021 decided on 12 May 2021.&nbsp;</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/394977/1/WP9564-21-12-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/394977/1/WP9564-21-12-07-2021.pdf</a></b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Petitioners in this writ petition call in question the endorsement<span style=\"white-space:pre\">	</span>dated 23-12-2020,<span style=\"white-space:pre\">	</span>bearing No.G1/164168/Anukampa/144/2017-18, declining to grant an appointment on compassionate grounds to the 1st petitioner and have&nbsp; sought&nbsp; for&nbsp; consequential direction by issuance of a writ in the nature&nbsp; of&nbsp; mandamus directing the respondents to consider the&nbsp; case of the 1st petitioner for an appointment on compassionate grounds qua his qualification.</b><br></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">14. The submission of the learned Additional Government Advocate that 6 years have passed by after the death of the breadwinner of the family and the need for compassionate appointment now no longer exists on account of delay of 6 years&nbsp; is unacceptable.&nbsp; &nbsp;The delay&nbsp; &nbsp;is not attributable to the petitioners as&nbsp; the&nbsp; application for compassionate appointment was given within two months after the date of death of the father. After submission of the said&nbsp; representation&nbsp; certain&nbsp; documents were directed to be furnished by the petitioners, which took considerable time for the petitioners to apply and get the same. Even then, the petitioners were representing to the authorities for such consideration as observed by this Court in the earlier round of proceedings instituted by the petitioners&nbsp; (supra). Even otherwise, it is the form of the application that the respondents had found fault with and not the claim, be that as it may.&nbsp; &nbsp;It is on this erroneous action&nbsp; &nbsp;on the part of the State that the claim is dragged on for this long. In view of the preceding analysis, the case of&nbsp; the 1st petitioner for appointment on compassionate grounds will have to be re-considered by the State without again driving the petitioners to the Court for redressal of their grievance.</b><br></p><p><b>1</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">5. This Court in umpteen number of cases, has come across the authorities not considering the applications given seeking appointment on compassionate grounds immediately notwithstanding&nbsp; the need for appointment lying in its&nbsp; immediacy.&nbsp; Keeping the application pending for years or months will defeat the very object of framing the Rule for grant of appointment on compassionate grounds. It is trite that&nbsp; &nbsp; a family which loses its breadwinner would be driven to impecuniosities or become condemned by penury. Therefore, the need for immediate consideration of such representations/applications for appointment on compassionate grounds is paramount.</b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">16. The Rule that enables an applicant file an application for appointment is Rule 5 of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996,&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">It is the aforesaid Rule which enables consideration of appointment on compassionate grounds and mandates application to be made within one year from the date of death of the Government servant. Sub-Rule (1) and (2)&nbsp; &nbsp;of Rule 6 also mandates that in&nbsp; terms&nbsp; of&nbsp; the applications given the same shall&nbsp; be&nbsp; considered&nbsp; as&nbsp; far as possible within three months from the date of receipt of an application under Rule 5.&nbsp;&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">The afore-extracted Rule mandates that an application made<span style=\"white-space:pre\">	</span>under Rule 5 shall<span style=\"white-space:pre\">	</span>be considered and appointment under Sub- Rule (1) shall&nbsp; be&nbsp; made&nbsp; as&nbsp; far as possible within three months. This has all along remained only on paper and is seldom implemented by the State, most conspicuously seldom in the cases that&nbsp; are brought before the Court. These very Rules bind the applicants to give an application&nbsp; seeking&nbsp; appointment on compassionate grounds within one year&nbsp; from&nbsp; the date of death. If Rule 5 is binding on an applicant, sub- Rule (2) of Rule 6 would become binding on the State as&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">well</b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">17. Therefore, if giving of an application within one year is held to be mandatory and binding on&nbsp; the applicant in terms of Rule 5, so would be sub-Rule (2) of Rule 6 upon the State and its instrumentalities. Though the Rule employs the words ‘as far as possible’ it is preceded by the word “shall”. Looking at the mandatory duty cast upon the applicant to file&nbsp; an&nbsp; application&nbsp; within one year from the date of death of the bread winner, the same duty is required to be mandatorily followed by the State in terms of sub-rule (2) of Rule-6&nbsp; &nbsp;in the wake of the object of framing the&nbsp; rule&nbsp; and&nbsp; the duty that enjoins such object. Therefore, the Rule that directs appointment shall be made as far as possible within a period of three months cannot but be held to be mandatory. Therefore, the authority empowered to consider applications for compassionate&nbsp; appointment&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">shall consider and dispose the same within the mandate of sub- Rule (2) of Rule 6 i.e., three months from&nbsp; the date of receipt of the application. Any unreasoned or unjustifiable delay on the part of the Authority&nbsp; competent to consider would make such Authority personally responsible to pay&nbsp; damages&nbsp; to&nbsp; such&nbsp; applicant by way of wages that the applicant would be entitled to, if an appointment had been considered and granted.</b></p><p><b>18.<span style=\"white-space:pre\">	</span>For the aforesaid reasons, I pass the following:</b></p><p><b>O R D E R</b></p><p><b>(i)<span style=\"white-space:pre\">	</span>Writ Petition is allowed.</b></p><div><br></div>', '0adf4ad6f3c583b78ba6d4a86d7e21e6.jpg', 'c16529c462b732bea237eeb2d5c81365.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-05-12', 1, '', '', '2021-07-16 03:33:05', '2021-07-16 03:33:05');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(894, 'O48Ush1dCXcJfD5NS6zxFN2du', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Law. Separated son has NO right in ancestral property left by kartha. He can claim share as Class-I heir after death of Kartha in notional partition. Karnataka High Court.  ', '<p><b>Annapurnavva vs Parvetvva and others. </b></p><p><b>Regular First Appeal 100007 of 2014 decided on 7 July 2021.</b></p><p><b>Justice R.Devdas and Justice J.M.Khazi</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/394922/1/RFA100028-14-07-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/394922/1/RFA100028-14-07-07-2021.pdf</a></b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">A divided son, whether would be entitled to seek a share in the father’s property or whether only the undivided would succeed to such property is the question that seeks consideration in these Regular First Appeals.</b><br></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">10. On the face of it, it appears as if this question is mundane and there may be any number of authoritative decisions throwing light on the contentious issue. However, surprisingly, both the learned counsel submitted that there were not many decisions of recent origin on this point.</b></p><p><b>12. As rightly submitted by the learned counsel on both the sides, the factum of Parameshwarayya having two wives having been admitted in a Court of law, in a previous round of litigation, the said question cannot be reopened for consideration. </b></p><p><b>13. Now, therefore, the question is – whether after the death of Parameshwarayya, his two widows-Parvatevva and Annapurnevva who remained joint and enjoyed the immovable properties jointly along with Parameshwarayya are only entitled for a share in the joint family properties or whether Channabasayya, the divided son is also entitled for a share and if so, to what extent?</b></p><p><b>14. We have gone through the decision in Debi Mangal Prasad Singh (supra) and we find that the question there was</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">– whether immovable property obtained by a Hindu widow on partition of the joint family property under the Mitakshara Law, is part of her streedhan in the narrow sense of that word, indicating her separate property or peculium which passes on her death to her own heirs or is merely part of streedhan in the wider sense. Therefore, not much light is thrown on the issue that has fallen for consideration in this case. On the other hand, a Full Bench of the Madras High Court in the case of VIRAVAN CHETTIAR VS. SRINIVASACHARIAR reported </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">in AIR 1921 MAD 168 while considering a question as to whether  on  the  death  of  a  Hindu  male,  his   self-acquired </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">property devolves upon the sons by survivorship or inheritance, has dealt with the issue raised in the present case. The main issue therein was whether succession certificate was required to be obtained by a person claiming debts or debt in the property of the deceased, not only by succession, but under any title whatsoever. Per majority, it was held that the succession of the undivided son by inheritance was recorded as beyond doubt. It was noticed  that the Privy Council in BALWANT SINGH VS. RANI KISHORE reported in (1898) 20 All. 267, which had noticed the text of the Mitakshara dealing with the rights of the sons in their father’s self-acquisitions that though immoveables or bipeds have been acquired by a man himself, a gift or sale of them should not be made without convening all the sons.  They who are born and they who are yet unbegotten and they who are still in the womb, require the means of support. No gift or sale should therefore be made, was held as only a moral percept and not a rule of law capable of being enforced in a matter of self-acquisitions of a male Hindu. It was held that the son acquires no legal rights over his father’s self- acquisitions by reason of the text of the Mitakshara, his right </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">is imperfect one incapable of being enforced at law. It was held that co-parcenary and survivorship imply the existence of co-ownership and of rights of partition enforceable at law and a mere moral injunction can hardly be the foundation of a legal right. The contention that sons acquire a right by birth  in the father’s self-acquired property was rejected by holding that, “he is his father’s son, and if his father does not dispose of, it will come to him; but is it anything more than a Spes?” So far as a father’s self-acquisitions are concerned, the son, though undivided, has only spes successionis and he stands in relation to that property in the same position as heir under Hindu Law. The very essence of the distinction between Apratibandha and Sapratibandha daya is the existence of an interest in the son in respect of properties got by his father. The Full Bench noticed and approved the decision in the case of NANA TAWKER VS. RAMACHANDRA TAWKER reported </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">in (1909) 32 MAD 377, where it was held that under the law of Mitakshara the self-acquired property of a father is taken by his undivided sons to the exclusion of a divided son.</b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">15. In the case of NARASIMHA RAO VS. NARASIMHAN reported in AIR 1932 MAD 361, it was noticed that the question that was answered in the affirmative in Nana Tawker Vs. Ramachandra Tawker (supra) was referred to a Bench for re-consideration on the grounds that some doubt has been thrown on the correctness of that decision in a later Madras case, and it has been expressly dissented from by the Chief Court of Oudh. It was also noticed that the later Madras case in Vairavan Chettiar’s case (supra) dissents from Nana Tawker on one point, but it does not dissent from it on the material point as to the exclusion from inheritance to the father of divided by undivided sons.</b><br></p><p><b>22. Now, coming to the question as to whether the Hindu Succession Act, 1956, has brought about any change in this regard. It can be seen that when the Act was  brought into force in the year 1956, in Explanation (2) to Section 6 of the Act, it was provided that the Section was not to be construed as enabling a person who had separated himself from the co-parcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. The State amendment was brought about by Karnataka Act 23/1994, where, under Section 6-B which dealt with interest to devolve by survivorship on death, Explanation (2) as found in Section 6 was once again provided for. However, on commencement of the Hindu Succession (Amendment) Act, 2005, Explanation (2) has been deleted. The State Amendment, however, continues and consequently, the Explanation (2) can be made applicable only to the </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">particular Section i.e., Section 6-B which deals with the devolution of interest of a female Hindu who dies after commencement of the Hindu Succession (Karnataka Amendment) Act, 1990. Section 6-B provides that where a female Hindu dies after the commencement of the Hindu Succession Act (Karnataka Amendment) Act, 1990, having at the time of her death an interest in Mitakshara coparcenary property, her interest in the property shall devolve by survivorship upon the surviving members of the coparcenars and not in accordance with the Act. However, the proviso to Section 6-B provides that if the deceased (i.e., a female Hindu) had left any child or child of a predeceased child, the interest of the deceased in the property shall devolve by testamentary or intestate succession as the case may be under the Act and not by survivorship. Explanation (2) further qualifies the proviso by stating that before the death of the deceased (female Hindu) if a person had separated himself or herself from the coparcenars, such person or any of his or her heirs shall not claim on intestacy a share in the interest referred to therein.</b></p><p><b>23. The submission of the learned counsel for the appellant appears to be the correct position, that since Explanation-2 has been deleted from the original provision and what is left in the State amendment as explanation is only referable to Section 6-B, which does not deal with succession to the property of a male Hindu dying intestate, there is no impediment for the appellant to claim a share in his father’s property, in terms of Section 8 of the Act.</b></p><p><b>24. In terms of Section 8, on the death of Parameshwarayya, the coparcenars’ property held in the hands of Parameshwarayya, Parvatevva and Annapurnavva, jointly, by a notional partition shall be divided into three shares, one share each for Parameshwarayya, Parvatevva and Annapurnavva. However, in the share of Parameshwarayya, the two widows and his son Channabasayya shall get 1/3rd each. Since Channabasayya had separated himself from the joint family during the life time of his father, taking his separate share, he would not be entitled to seek a share at the time of effecting the notional partition. However, at the time of distribution of the property belonging to </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Parameshwarayya, in accordance with Section 8, his son Channabasayya and two widows who are the Class-I heirs as per the schedule are entitled for equal share in the separate property of Parameshwarayya. Consequently, Channabasayya will be entitled for 1/9th of the suit schedule properties, whereas Parvatevva and Annapurnavva shall be entitled for 4/9th each in the suit schedule properties. Accordingly, both the appeals are allowed in part.</b></p><p><br></p>', 'c24b08e8728d09e2b9dbeac5a531bad5.jpeg', '7cd1b05a9aa282d0358a4fded0face8b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-07', 1, '', '', '2021-07-16 22:02:11', '2021-07-16 22:04:26'),
(895, 'OcOkAvNVbGt9nGKiXSrqcMJwW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Law. \'There may be illegitimate parents, but no illegitimate children. Parliament should to bring about uniformity in law vis-à-vis legitimacy of children\'.  Karnataka High Court. ', '<p><b>K.Santosha vs The Karnataka Power Transmission Corporation Limited. </b></p><p><b>Writ Appeal 2495 of 2019 decided on 24 June 2021.</b></p><p><b>Justice B.V.Nagarathna and Justice Hanchate Sanjeevkumar  </b></p><p><b>Judgment Lin: <a href=\"https://karnatakajudiciary.kar.nic.in/judgements/WA-2495-2019-Dtd-24062021.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/WA-2495-2019-Dtd-24062021.pdf</a></b></p><p><b>24. Before we proceed further, it would be useful\r\nto place reliance on Section 16 of the Act.</b></p><p><b>25. A reading of the same would clearly indicate\r\nthat the Parliament in its wisdom has conferred legitimacy\r\nto children born out of a void marriage. Any person who\r\nmarries during the subsistence of his first marriage and\r\nwho has a spouse living at the time of the marriage, enters\r\ninto a void marriage and such a marriage is void in terms\r\nof Section 11 of the said Act. But a reading of Section 16\r\nwould indicate that children born out of a void marriage\r\nare considered to be legitimate by a deeming fiction.\r\nWhile conferring legitimacy to such children, the\r\nParliament has placed an embargo only on the succession\r\nrights of such illegitimate children, inasmuch as they can\r\nsucceed only to the separate property of their parents, as\r\nif they are the legitimate children of their parents and not\r\nto the ancestral property, (Section 16(3) of the Act).\r\nSection 16 of the Act deals with legitimacy of children of\r\nvoid and voidable marriages. </b></p><p><b>39. It would also be useful to refer to the order\r\npassed in Revanasiddappa and another vs.\r\nMallikarjun and Others [(2011) 11 SCC 1], wherein\r\nthe question was whether illegitimate children are entitled to a share in the coparcenary property or whether their\r\nshare is limited only to the self-acquired property of their\r\nparents under Section 16(3) of the Act.</b></p><p><b>40. In that case, it was observed that, with\r\nchanging social norms of legitimacy in every society,\r\nincluding ours, what was illegitimate in the past may be\r\nlegitimate today. The concept of legitimacy stems from\r\nsocial consensus, in the shaping of which various social\r\ngroups play a vital role. In view of ever-changing socioeconomic scenario and the consequential vicissitudes in\r\nhuman relationship, the law also articulates such social\r\nchanges through a process of amendment and by taking\r\nnote of dynamics in a changing society. Thus, law would\r\ntake its own time to meet the challenges of the changing\r\nsocial pattern in different time periods. <br></b></p><p><b>41. <span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Referring to Section 16 of the Act, it was\r\nobserved that, the object of the said Section is to bring\r\nabout social reforms and to confer social status of\r\nlegitimacy on innocent children born out of void marriages.\r\nIn the said case, it was also observed that the relationship\r\nbetween the parents may not be sanctioned by law, but\r\nthe birth of a child in such relationship has to be viewed </span><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">independently of the relationship of the parents. A child\r\nborn in such relationship is innocent and is entitled to all\r\nthe rights, which are given to other children born in valid\r\nmarriage. This is the crux of Section 16(3) of the\r\nAct. However, some limitation on the property rights of\r\nsuch children is still there in the sense that their right is\r\nconfined to the property of their parents only. </span></b></p><p><b>42. <span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">It was further observed that a Court cannot\r\ninterpret a socially beneficial legislation on the basis as if\r\nthe words therein are cast in stone. Such legislation must\r\nbe given a purposive interpretation to further and not to\r\nfrustrate the eminently desirable social purpose of\r\nremoving the stigma on such children. In doing so, the\r\nCourt must have regard to the Constitution including\r\nDirective Principles of State Policy enshrined in Articles 37\r\nand 39(f), under which children are given opportunities\r\nand facilities to develop in a healthy manner and in\r\nconditions of freedom and dignity. By the said order, the\r\nmatter has been referred to Hon’ble the Chief Justice of\r\nIndia for constitution of a larger Bench to reconsider the\r\ndecision rendered earlier by the Hon’ble Supreme Court\r\nunder Section 16(3) of the Act.</span></b></p><p><b>56. Of course, it is for the Parliament to legislate on the conferment of legitimacy on children born out of the void or voidable marriages under the personal law other than the Hindu Marriage Act and the Special Marriage Act, 1954, as under these two enactments such legitimacy is conferred. But, for the limited purpose of this case, we find that children born out of void and voidable marriages under other personal laws, where there is no provision for conferment of legitimacy, must also have equal protection of the law by treating them on par with children born out of void and voidable marriages under the Hindu Marriage Act or the Special Marriage Act, 1954, insofar as the appointment on compassionate basis is concerned, as interpreted by us, under the Regulations under consideration and in light of the judgment of the Hon’ble Supreme Court in V.R.Tripathi.</b></p><p><b>57. We add that no child is born in this world without a father and a mother. A child has no role to play in his/her birth. Hence, law should recognise the fact that there may be illegitimate parents, but no illegitimate children. Therefore, it is for the Parliament to bring about uniformity in law vis-à-vis legitimacy of children. Thus, it is for the Parliament to determine in what way protection could be extended to children born outside a valid marriage.</b></p><p><b>58. On the aspect of circulars issued under various statutes by the concerned Government Departments, learned Additional Government Advocate, Smt.Vani H. (who is present in Court) by way of assistance to the Court brought to our notice the judgment of the Hon’ble Supreme Court in the case of Commissioner of Central Excise, Bolpur vs. Ratan Melting & Wire Industries [(2008)13 SCC 1], wherein it has been observed as under:</b></p><p><b>“7. Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the court to declare what the particular statutory provisions has really no existence in law.” </b></p><p><b>59. Therefore, in the instant case, when we have interpreted the Regulations, the Circular - which is contrary to the interpretation of the Regulations made by us, cannot be binding on the parties.</b></p><p><b>61. The appeal is allowed in the aforesaid terms. The respondents herein are directed to consider the application made by the appellant herein in accordance with the observations made above and in accordance with law. The said consideration shall be made within a period of two months from the date of receipt of certified copy of this judgment, as the employee died on 10.06.2014 which was seven years ago. Parties to bear their respective costs.</b></p>', 'd112c20ecb3b6c926a3fa66e3225c202.jpeg', 'ac9fb991cf0b2c3412bd8de05498c80c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-24', 1, '', '', '2021-07-16 23:36:26', '2021-07-16 23:40:41'),
(896, 'Q6pLpDEcEUPMtGqw7guNuXZ5h', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'CLARIFICATION - Second wife, married during life time of first wife, getting share in the property of deceased husband. Karnataka High Court Judgment.  ', '<p><b>Last week Daksha Legal published the judgment of the Karnataka High Court under the heading <span style=\"background-color: rgb(255, 255, 0);\">\"Hindu Law. Even second wife, married during life time of first wife, is entitled to share in the property of deceased husband. Karnataka High Court.\"&nbsp;</span> Doubts are raised as to whether this is the actual ratio of the judgment. Hence the present clarification. Paragraph 2 of judgment is reproduced here.&nbsp;</b></p><p><b>2. The undisputed facts are that on 27.04.1971 Channabasayya was adopted by Parameshwarayya with due ceremonies. During the year 1976, Channabasayya filed O.S.No.38/1976 seeking declaration that he is the adopted son of Parameshwarayya and his two wives, Annapurnavva and Parvatevva and further sought for partition and separate possession of his 1/3rd share in the ancestral properties. The parties to the suit filed a compromise petition and as per the compromise petition, the relationship between the parties was admitted, more particularly, that Parameshwarayya had two wives and since no issues were born out of the wedlock, they adopted Channabasayya on 27.04.1971 with due ceremonies. Further, during May, 1971, the parties had entered into an oral partition and as per the said partition, the properties were divided and allotted. The suit was accordingly decreed by diving the joint family properties of Parameshwarayya into two. Five items of agricultural properties and a house situated in Havanur village panchayath limits bearing No.668 were allotted to the share of Channabasayya. <span style=\"background-color: rgb(255, 255, 0);\">The rest of the properties were retained by Parameshwarayya and his two wives as their joint share.</span></b></p><p><b>That after the death of Parmaeshwarayya, having regard to the terms of the compromise decree, the Hon\'ble High Court has allotted the share to second wife also as indicated below.&nbsp; It is made clear that the heading of Daksha Legal&nbsp;</b><span style=\"font-weight: bolder; font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem); background-color: rgb(255, 255, 0);\">\"Hindu Law. Even second wife, married during life time of first wife, is entitled to share in the property of deceased husband. Karnataka High Court.\"&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">&nbsp; may kindly be ignored since this is not the actual ratio of the judgment. The error is regretted.&nbsp;</span></p><p><b>Annapurnavva vs Parvetvva and others.&nbsp;</b></p><p><b>Regular First Appeal 100007 of 2014 decided on 7 July 2021.</b></p><p><b>Justice R.Devdas and Justice J.M.Khazi</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/394922/1/RFA100028-14-07-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/394922/1/RFA100028-14-07-07-2021.pdf</a></b></p><p><b>11. Before delving into this question, it is necessary to consider whether the trial Court was right in coming to a conclusion that the plaintiff-Parvatevva is the legally wedded wife of Parameshwarayya and her marriage with Parameshwarayya having been conducted in the year 1941, Parvatevva is the first wife of Parameshwarayya&nbsp; and therefore, Annapurnavva has no legal status of a legally wedded wife having regard to the provisions of the Hindu Marriage Act, 1955 and therefore, Annapurnavva was denied any share in the suit schedule properties.</b></p><p><b>12. As rightly submitted by the learned counsel on both the sides, the factum of Parameshwarayya having two wives having been admitted in a Court of law, in a previous round of litigation, the said question cannot be reopened for consideration.&nbsp;</b></p><p><b>24. In terms of Section 8, on the death of Parameshwarayya, the coparcenars’ property held in the hands of Parameshwarayya, Parvatevva and Annapurnavva, jointly, by a notional partition shall be divided into three shares, one share each for Parameshwarayya, Parvatevva and Annapurnavva. However, in the share of Parameshwarayya, the two widows and his son Channabasayya shall get 1/3rd each. Since Channabasayya had separated himself from the joint family during the life time of his father, taking his separate share, he would not be entitled to seek a share at the time of effecting the notional partition. However, at the time of distribution of the property belonging to&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Parameshwarayya, in accordance with Section 8, his son Channabasayya and two widows who are the Class-I heirs as per the schedule are entitled for equal share in the separate property of Parameshwarayya. Consequently, Channabasayya will be entitled for 1/9th of the suit schedule properties, whereas Parvatevva and Annapurnavva shall be entitled for 4/9th each in the suit schedule properties. Accordingly, both the appeals are allowed in part.</b></p>', 'e7af7dd4e3908c3deacd282ff3a60faa.jpeg', '73eb4d46376a14a28b1d0122f702dbf9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-07', 1, '', '', '2021-07-17 00:04:32', '2021-07-18 17:30:12'),
(897, '3BcHZkmwX69KaHWO4KiWoYnQq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act 1978. \'Granted land\' (original grant to SC-ST persons) includes house sites or non-agricultural land also. Karnataka High Court.', '<p><b>Munnaiah and others vs The Deputy Commissioner and others. </b></p><p><b>Writ Petition 60483 of 2014 decided on 5 July 2021.</b></p><p><b>Justice Alok Aradhe, Justice Sachin Shankar Magadum and Justice M.Nagaprasanna.</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395009/1/WP60483-14-05-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395009/1/WP60483-14-05-07-2021.pdf</a></b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\"></b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">12.<span style=\"white-space:pre\">	</span>Now we may proceed to deal with the issues which emanate from the order of the learned Single Judge in descending order.</b><br></p><p><b><u>Whether the definition of the word ‘granted land\', as found in the PTCL Act, could be restricted only to agricultural lands?</u></b></p><p><b>(A) Section 3(1)(b) of PTCL Act defines the expression “granted land”. The aforesaid definition uses the expression `means and includes\', the word `includes\' is often used in definition clauses to enlarge the meaning and phrases of the word occurring in the body of statute and therefore, such words have to be construed comprehensively. It is settled Rule of Statutory  Interpretation  that  expression  `means  and includes\' suggests an exhaustive definition [See: Delhi Development Authority vs Bholalal Sharma (2011) 2 SCC 54, and DAV College Trust & Management Society vs Director of Public Instructions and others. </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">(2019) 9 SCC 185]. Thus, from  perusal  of  the  aforesaid definition, it is evident that the expression “granted land” covers any land granted by the Government and includes the land allotted or granted to such person under relevant law relating to agrarian reforms or land ceiling or abolition of inams, other than that relating to hereditary office or rights. The principle  of Noscitur a sociis applies only when two or  more  words are susceptible of analogous meaning and are coupled together. The words used in Section 3(1)(b) of the PTCL Act are not susceptible to any analogous meaning and are clear. Therefore, the  aforesaid  Rule has no application to Section 3(1)(b) of the PTCL Act.  The aforesaid definition is an extensive definition and the   expression   `land\'   includes   house   sites  or non agricultural land also. The view taken by learned single judge  in  Kariyappa´s  case,  supra,  states  the  correct position of law. Accordingly, the third issue is answered in the negative</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '30ca5604b0aa04a1b88912521f5ad0dc.jpeg', '0471b3059b93d4d36ce961525cb6773a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-05', 1, '', '', '2021-07-17 00:48:13', '2021-07-17 02:24:08'),
(900, 'wXKmRFXDyyjOM9FS4W8dC1mYS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constitution of India. Article 227. In a proceeding relating to dismissal of application to condone delay in applying for setting aside exparte decree, the High Court can, in appropriate cases, set aside the exparte decree itself. Supreme Court. ', '<p><b>K.P.Natarajan and another vs Muthalammal and others. </b></p><p><b>Special Leave Petition (C) 2492 of 2021 decided on 16 Jult 2021. </b></p><p><b>Justice Indira Banerjee and Justice V.Ramasubramanian</b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/1845/1845_2021_40_1501_28528_Judgement_16-Jul-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/1845/1845_2021_40_1501_28528_Judgement_16-Jul-2021.pdf</a></b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">21. Admittedly, the learned Judge summoned the records from the trial Court after entertaining a doubt about the procedure followed by the trial Court in this case and found as a matter of fact that the trial Court failed to appoint a guardian for the third defendant as required by Order XXXII, Rule 3. The power of the learned Judge to call for the records and examine the same, in a revision under Section   115(1)   of   the   Code   is   not   and   cannot   be   doubted   or questioned by the petitioners. It is true that the learned Judge was dealing   only   with   a   revision   petition   arising   out   of   an   Order dismissing a petition under Section 5 of the Limitation Act, 1963. But it does not take away or curtail the jurisdiction of the High Court   to   look   into   the   records   with   particular   reference   to   an important rule of procedure, especially when the same relates to something concerning persons under disability.</b><br></p><p><b>22. The contention that in a revision arising out of the dismissal of a petition under Section 5 of the Limitation Act, 1963, the High Court cannot set aside the ex­parte decree itself, by invoking the power under Article 227, does not appeal to us. It is too well settled that the powers of the High Court under Article 227 are in addition to and wider than the powers under Section 115 of the Code. In Surya  Dev  Rai   vs.  Ram  Chander  Rai  and  Others2 , this Court went as far as to hold that even certiorari under Article 226 can be issued for correcting gross errors of jurisdiction of a subordinate Court.  But the correctness of the said view in so far as it related to Article 226, was doubted by another Bench, which resulted in a reference to a three member Bench. In Radhey Shyam & Anr. vs. Chhabi   Nath  &   Others3 , the three member Bench, even while overruling  Surya  Dev  Rai  (supra) on the question of jurisdiction under Article 226, pointed out that the jurisdiction under Article 227   is   distinguishable.   Therefore,   we   do   not   agree   with   the contention that the High Court committed an error of jurisdiction in invoking Article 227 and setting aside the ex­parte decree. </b></p><p><b>23. In fact the learned Judge also went into the question whether a decree passed against a minor without proper appointment of a guardian, is a nullity ipso facto or whether the same would depend upon prejudice against the minor being established. The learned </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Judge found that in this case, the minor was prejudiced.</b></p><p><b></b><br></p>', '4c2c770eae39bc5db1c33d89e6c913ce.PNG', '956bdf42dc0f9368f270464e90ff4ea6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-16', 1, '', '', '2021-07-17 03:52:25', '2021-07-17 03:55:00'),
(898, 'NMiN2CZSZ8JdZCAd2i2uxenk9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka SC-ST (Prohibition of Transfer of Certain Lands) Act, 1978 is NOT applicable if the granted land is converted by the grantee to non-agricultural purposes under the Karnataka Land Revenue Act, 1964. Karnataka High Court.  ', '<p><b>Munnaiah and others vs The Deputy Commissioner and others. </b></p><p><b>Writ Petition 60483 of 2014 decided on 5 July 2021.</b></p><p><b>Justice Alok Aradhe, Justice Sachin Shankar Magadum and Justice M.Nagaprasanna.</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395009/1/WP60483-14-05-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395009/1/WP60483-14-05-07-2021.pdf</a></b></p><p><b>(ii) Whether an order of conversion passed by the Deputy Commissioner, under Section 95 of the Karnataka Land Revenue Act, 1964 would take away a granted land from the purview of the PTCL Act?</b></p><p><b>(A) Article 46, which is contained in Part IV of the Constitution of India provides that State shall promote with special care, the educational and  economic  interests of the weaker section of the people and in particular schedule castes and schedule tribes and protect them from social injustice and all forms of exploitation. In rural areas, land provides economic status to the owner. The State is therefore, under a constitutional obligation to ensure that opportunities provided to the poor to augment  their  economic position. The Act, which is a special legislation  is  enacted to protect and preserve the economic interests of the persons belonging to schedule castes  and schedule tribes and to prevent their exploitation. The </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">assignment/allotment of the land is made to a person belonging to schedule castes and schedule tribes to augment their economic position. It is well settled rule   of statutory interpretation that a statute is an edict of  the legislature and the conventional way of interpreting or constructing a statute is to see the intention of its makers. A statute has to be construed according to the intent of those that make it and the duty of the judicature is to act upon the true intent of the legislature   –   \'the   mens   or   sentential   legis [See Principles of Statutory Interpretation,  Justice  G.P. Singh, 14th edn., Page 3].</b></p><p><b>(B) Thus, if Section 3(1)(b) and Section 4(2) of  the Act are read together in conjunction, it is evident  that the benefit of protection from transfer of land to persons belonging to schedule caste and schedule tribe community has been granted only in respect of granted land i.e., the land allotted to the persons belonging to  the schedule caste and schedule tribe community by the </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Government or allotted to such persons under the relevant law for the time being in force relating to agrarian reforms or land ceiling or abolition of inams, other than that relating to hereditary offices or rights. However, when such person seeks conversion of the aforesaid land under Section 95(2) of the Act, it presupposes that the land granted is an agricultural land and the person belonging to schedule  caste  and schedule tribe intends to use it for non-agricultural purposes. At the cost of repetition it may be stated that the intention of the legislature is to grant protection  to an allottee in respect of \'granted land\'. Once such permission for conversion of land is granted under section 95(2) of the Act by the Deputy Commissioner, the aforesaid land loses its nature as a \"granted land\" and therefore, the protection available under Section 4(2) of the Act is no longer available. Accordingly, the second issue is answered in the affirmative.</b></p><p><br></p><p><br></p>', '94b8203f2a15e4fb842591f8bb664462.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-05', 1, '', '', '2021-07-17 01:35:00', '2021-07-17 01:48:54'),
(899, '6RtC2rw9UbeawCXsJfwnGZFcu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka SC-ST (PTCL) Act, 1978. If the grantee converts the granted land for non agricultural purposes, it is no more a \'granted land under the Act\' and hence prior permission to sell is NOT necessary. Karnataka High Court. ', '<p><b>Munnaiah and others vs The Deputy Commissioner and others. </b></p><p><b>Writ Petition 60483 of 2014 decided on 5 July 2021.</b></p><p><b>Justice Alok Aradhe, Justice Sachin Shankar Magadum and Justice M.Nagaprasanna.</b></p><p></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395009/1/WP60483-14-05-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395009/1/WP60483-14-05-07-2021.pdf</a></b></p><p><b>Whether an order of conversion passed by the Deputy Commissioner, under Section 95 of the Karnataka Land Revenue Act, 1964 can be construed as prior permission granted by the Government, satisfying the requirements under Section 4(2) of the PTCL Act?</b></p><p><b>(A)<span style=\"white-space:pre\">	</span>The Karnataka Land Revenue Act, 1964 is a law enacted with the object to provide a uniform law governing land and land revenue administration in the State. The Act provides for the matters pertaining to  land and land revenue, grant, use and relinquishment of un-alienated land, revenue survey, division of survey numbers and partition of estates, assessment and settlement of land revenue of  agricultural land, record  of rights boundaries and boundary marks, survey and settlement of land, realization of land revenue and other public demands, revenue jurisdiction and powers and procedures of revenue officers. The PTCL Act is a special law enacted later in point of time, which deals with </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">provisions for protection of rights of persons belonging  to schedule caste and schedule tribe, in respect of land allotted or granted to them. Thus, both the aforesaid enactments operate in different fields and the relevant provisions of the PTCL Act viz., Section 3(1)(b) and 4 as well as Section 95 of the Act are  not in conflict with  each other.</b></p><p><b>(B)<span style=\"white-space:pre\">	</span>Section 95(2) of Act provides that in case occupant of any land assessed or held for the purpose of agriculture, wishes to divert such land shall apply for permission to the Deputy Commissioner who may  subject to provisions of Section 95 and the rules made under the Act may refuse permission or grant it on such conditions as it may deem fit. It is pertinent to mention here that State Government vide Notification dated 07.06.1999 published in the gazette dated 08.06.1999 has issued guidelines for simplifying and for maintaining a uniformity in grant of permission for conversion to non-agricultural purpose. </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Even though in the aforesaid  guidelines,  the Deputy Commissioners are required to ensure that conversion will not defeat provisions of  Section  4(1) and Section 4(2) of the PTCL Act, yet the fact remains that the scope of enquiry is different. Section 96 of the Act provides for consequences of non-compliance of the condition prescribed in Section 95(2) of the Act. Thus, Section 95 and Section 96 of the Act are a complete code in themselves in so far as issue pertaining to grant of permission for diversion of the land is concerned.</b></p><p><b>(C) Section 4 of the Act begins with a non- obstante clause and curtails the right of a  purchaser from a person belonging to schedule caste and schedule </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">tribe community to purchase a land provides that such person has to obtain previous permission from the State Government, failing which transfer of granted land shall be null and void. However, it is worth mentioning that the transfer or acquisition by transfer of “any granted land” without previous permission of the Government has been prohibited. There is no reference in Section 4 of the PTCL Act to Section 95(2) of the Act. It is well settled in law that when a statute provides a mode of doing a particular act in a particular way, then such a thing has to be performed in that manner alone and performance of that thing in all other manner is prohibited. [See:\'NAZIR AHMED VS KING  EMPEROR AIR 1932 PC 238 (PRIVY COUNCIL), \'COMMISSIONER  OF INCOME TAX, CHANDIGARH VS.  PEARL  MECHANICAL ENGINEERING AND FOUNDRY WORKS PVT.\', (2004) 4 SCC 597, \'COMMISSIONER OF INCOME TAX, MUMBAI VS. ANJUM M GHASWALA\', AIR 2001 SC 3868, \'COMPETENT AUTHORITY VS. BANGALORE JUTE FACTORY\', 2005 (13) SCC 477, \'THE GOA FOUNDATION </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">VS. SESA STERLITE LTD. AND ORS.\', (2018) 4 SCC 218].</b></p><p><b>(D)<span style=\"white-space:pre\">	</span>In the instant case, the statute namely PTCL, specifically provides that the permission for transfer/acquisition by transfer in respect of  any  granted land cannot be made except after obtaining  prior approval of the Government. Thus, the transfer/ acquisition by transfer in granted land has to  be made  in the  manner prescribed under  Section 4(2)  of  the Act </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">i.e. the special enactment and an order of conversion passed by the Deputy Commissioner under Section  95(2) of the Act granted to an occupant of the land to use the land for purposes other than agriculture, cannot be construed as fulfillment of requirement under Section 4(2) of the PTCL Act. It is also noteworthy that competent authorities under both the provisions viz., Section 4(2) of the PTCL Act and under Section 95(2) of the Act are different, viz., the State Government and Deputy  Commissioner  respectively.  The  object  and </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">purpose of both the provisions contained in different enactment is entirely different. The scope of enquiry under both the provisions is entirely different. Both the aforesaid provisions operate in different  fields.  However, as we have already held that once the land is diverted, the same ceases to be a \'granted land\' under the provisions of the PTCL Act. Therefore, in case of a diverted land, the requirement of obtaining the permission under Section 4(2) of the Act does not arise as the permission has to be obtained only in respect of \'granted land\' and the land on conversion no longer remains \'granted land\'. Therefore, the issue whether an order of conversion passed by the Deputy Commissioner under Section 95 of the Karnataka Land Revenue act, 1964 can be construed as prior permission by the Government satisfying the requirements under Section 4(2) of the PTCL Act does not arise in case of diverted lands. The aforesaid issue is therefore, answered accordingly.</b></p>', 'ee26a559437f98a2a9e6c71cb43c0279.jpeg', '7c879d5b1362a90a4614b60b78cbfa47.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-05', 1, '', '', '2021-07-17 02:18:41', '2021-07-17 02:20:36'),
(902, '4vlJsTTeaMM0w4B98BJsv8EVY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Unconditional Bank Guarantee. Death of guarantor will not frustrate the contract of bank guarantee. Bank is bound to honor the bank guarantee and pay the amount. Karnataka High Court.  ', '<p><b>The Karnataka Bank Limited vs Mysore Urban Development Authority and another </b></p><p><b>Regular First Appeal 1179 of 2011 decided on 13 July 2021.</b></p><p><b>Justice S. Sujatha and Justice P.N.Desai. </b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395105/1/RFA1179-11-13-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395105/1/RFA1179-11-13-07-2021.pdf</a></b></p><p><b>This appeal is filed challenging the judgment and decree dated 31.03.2011 in O.S.No.765/2004 passed by the Principal Judge, Court of Small Causes and Senior Civil Judge, Mysore, wherein suit of the plaintiff is decreed for sum of Rs.24,23,620/- with future interest at the rate of 24% p.a., from the date of suit till realisation.</b></p><p><b>7. The first defendant issued Bank Guarantee dated 08.10.2003. It is mentioned by the first defendant in the said Guarantee that it would undertake to pay the plaintiff upon its first written demand and without cavil argument, any sum within the limits of Rs.22,70,820/- without the plaintiff needs to prove or show grounds or reasons for its demand for sums specified therein. The first defendant also agreed to other conditions by issuing the  unconditional performance Bank Guarantee.</b></p><p><b>38. On perusing terms of Ex.P1 it is crystal clear that it is an unconditional deed of guarantee. The defendant No.1 has agreed that no change or other modification of the terms of contract of the works performed thereunder or any of the contract which may be made between MUDA and contractor shall any way release them, even they waived notice of any such change, addition or modification.</b></p><p><b>39. Therefore, the defendant No.1-Bank now cannot go back against the terms of deed of Guarantee and contend that in view of the death of Sri Venugopal the contract get frustrated. On the other hand, the contract continued with the M/s Venu Electricals. Only difference is the wife of Sri Venugopal is representing the M/s Venu Electricals after his death. </b></p><p><b>52. The learned counsel for respondent No.1 has relied on the judgment of the Madras High Court reported in AIR 2011 Madras 179 in the case of State Bank of India and Anr. Vs. Mrs. Jayanthi and Ors. The Court held that while considering the liability as guarantor after his death held that the liability does not stand extinguished \"the liability under the guarantee stands revoked or extinguished on the death of the Guarantor. Section 131 of the Contract Act clearly provides that in case of death of Guarantor, the date of guarantee/continuing of the guarantee executed in favour of the bank stands revoked in respect of future transactions. Hence, we have no hesitation in holding that the liability of the guarantor cannot be extinguished on his death so far the liability which existed on the date of the death of the guarantor. It is well settled that on the death of the guarantor, the liability exists and such liability can be fastened on the estate of the deceased, being inherited by his legal heirs, and the creditor can recover the dues out of the estate of the deceased.\"</b></p><p><b>53. Further, the learned counsel relied upon the decision of the Hon\'ble Supreme Court reported in (2003) 4 SCC 690 in the case of Daewoo Motors India Ltd. vs. Union of India and Others wherein the Hon\'ble Supreme Court dealt with unconditional and absolute terms of Bank Guarantee and held that when the obligation could not be performed the respondent is entitled to revoke the Bank Guarantee and the Bank is liable to encash the same. </b></p><p><b>54. Further, the learned counsel also relied on the decision of the Hon\'ble Supreme Court reported in AIR 1996 SC 2268 in the case of Hindustan Steel Works Construction Ltd. Vs. Tarapore and Co. and another wherein the Hon\'ble Supreme Court considered the nature of unconditional Bank Guarantee and held that no distinction can be drawn between the guarantee for due performance of contract or towards security deposit. </b></p><p><br></p>', 'fb549c2a203dc13ee0d6be14afa068f8.PNG', 'ab28e7e5cf8702573e8ad18585272c24.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-13', 1, '', '', '2021-07-20 01:22:17', '2021-07-20 01:32:18');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(903, 'qi89kPyMhPPidcPmaV96vYDle', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure code. Private complaint in respect of cognizable offences without first approaching the police is impermissible. Magistrate cannot take cognizance without an affidavit along with the complainant in this regard. Karnataka High Court. ', '<p><b>Amit Ramani and others vs State by Cubbon Park Police and another. </b></p><p><b>Criminal Petition 1942 of 2021 decided on 12 July 2021.</b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">The petitioners 1 to 5 being accused no. 2 to 6 respectively in PCR.No.13445/2020 on the file of IV Addl. Chief Metropolitan Magistrate, Bengaluru, have preferred this petition under Section 482 Cr.P.C. for quashing FIR.No.17/2021 registered by the 1st respondent – police station on a reference made  under Section 156(3) Cr.P.C. in relation to offences </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">punishable under Section 120-B, 406, 420 and 506r/w 34 IPC.</b><br></p><p><b>5. The learned counsel for the petitioners further argued that the 2nd respondent has not filed an affidavit along with the complaint in terms of the ratio laid down by the Supreme Court in the case of Priyanka Srivatsava Vs. State of Uttar Pradesh – (AIR 2015 SC 1758). The complaint does not indicate having approached the Commissioner of Police when the jurisdictional police refused to receive the complaint. No proof is provided to show that on 24.6.2020, the 2nd respondent approached the jurisdictional police. For this reason also, the FIR needs to be quashed</b></p><p><b>9. The second aspect of the matter is that the second respondent<span style=\"white-space:pre\">	</span>has not complied with the directions issued by the Supreme Court in Priyanka Srivatsava’s case. This is not a case where the statue provides for filing a complaint in accordance with Section 200 Cr.P.C. If IPC or any other law provides that the courts can take cognizance only upon a complaint filed under Section 200 Cr.P.C., the mandate prescribed in Priyanka Srivatsava’s case can be said to be not applicable. But in this case, the aggrieved person must first approach the police and in case they fail to take any action, complaint may be made under Section 200 Cr.P.C. The complaint is obligated to furnish proof that he has taken recourse to Section 154(1) and (3) of Cr.P.C. and then only the Magistrate can entertain a complaint. To this effect affidavit must be filed. ....Therefore representation given to the Commissioner of Police cannot be considered as compliance of Section 154(3) Cr.P.C. Added to this, the complaint under Section 200 Cr.P.C. is not accompanied with affidavit showing due compliance of Section 154 (1) and (3) of Cr.P.C. The mandate laid down in Priyanka Srivatsava’s case is not followed.</b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Petition is allowed. </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">The proceedings against the petitioners in FIR No.17/2021 arising out of PCR. No.13445/2020 on the file of IV ACMM, Bengaluru City are quashed.</b><br></p><p><br></p>', '46a9f222d851d0f83f8edea3b3af46ef.jpg', 'ffa9ede38ff79f8d3cfceee9ba486fd0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-12', 1, '', '', '2021-07-20 02:00:29', '2021-07-20 02:02:21'),
(904, '3YWPXsMOzM53VmKteeLxzJyNg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Report of the Internal Complaint Committee on sexual harassment in workplace can only be a basis for initiation of disciplinary proceedings. The report cannot be used to impose punishment of dismissal etc. Karnataka High Court. ', '<p><b>Dr. Arabi U vs The Registrar, Mangalore University and another. </b></p><p><b>Writ Petition 15070 of 2020 decided on 20 July 2021.</b></p><p><b>Judgment Link: </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\"><a href=\"https://karnatakajudiciary.kar.nic.in/judgements/WP15070-20-20-07-2021.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/WP15070-20-20-07-2021.pdf</a></b></p><p><b>The petitioner in this writ petition calls in question\r\nsecond show cause notice dated 5-11-2020 seeking the\r\npetitioner to show cause as to why penalty of dismissal from service should not be imposed upon him based\r\nupon the report of Internal Complaints Committee.</b></p><p><b>15. The submission of the learned senior counsel\r\nappearing for the University that the report of the\r\nInquiry Officer is itself material enough to conclude and\r\nimpose the penalty under the Service Rules would in the\r\nfirst blush seem acceptable in the light of the judgment\r\nof Apex Court in the case of Medha Kotwal Lele\r\nwherein the Apex Court holds that the report of the\r\nCommittee would be deemed to be an inquiry report in a\r\ndisciplinary action under such Service Rules and\r\nConduct Rules. Though this judgment directed that this\r\nitself would be an inquiry report, the judgment also\r\nconsiders directions in the judgment of Vishaka which\r\nwas necessary to remain effective until legislative\r\nenactment on the subject is in place. Metha Kotwal <span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Lele also depicts that these directions would be valid till\r\nappropriate legislation is brought out. Once legislation\r\nsteps in, the rigor of the guidelines or tenor of the\r\nguidelines, in my considered view, would become\r\ninapplicable.\r\n</span></b></p><p><b><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\"> 16. The statute depicts a particular action to be\r\nperformed in a particular manner. The procedure\r\nstipulated therein cannot be given a go-bye by following\r\nthe judgment of the Apex Court in the case of Medha\r\nKotwal Lele. The three Judge Bench decision of the\r\nApex Court in the case of Medha Kotwal Lele was to be\r\nin operation till the legislation, as was directed in the\r\ncase of Vishaka. Subsequent to the legislation, the\r\nlater three Judge Bench in the case of Dr.\r\nVijayakumaran C.P.V. would cover the issue and the\r\nlaw declared by the Apex Court in the said case would\r\nbe applicable to the facts of the case at hand, as the\r\nApex Court considers the Regulations of the Central </span><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">University of Kerala, Regulations of University Grants\r\nCommission and the Act and holds that such report of\r\nthe Committee ought to be taken to its logical end not\r\nonly by initiating departmental or regular inquiry as per\r\nthe Service Rules, but also followed by other actions in\r\nlaw.</span></b></p><p><b>17. The Apex Court holds that in such cases a\r\nregular inquiry or a departmental action as per the\r\nService Rules is indispensable. The Apex Court was\r\nconsidering a probationer in the case of Dr.\r\nVijayakumaran C.P.V. The case at hand is of a regular\r\nemployee who has put in 37 years of service in the\r\nUniversity and is on the verge of retirement. Therefore,\r\nthe petitioner, in the case at hand, is on a higher\r\npedestal qua the procedures to be followed under the\r\nRules in comparison to that of the employee in Dr.\r\nVijayakumaran CPV’s case. Therefore, the contention of the learned senior counsel appearing for the\r\nrespondent/University is unacceptable. </b></p><p><b>18. Insofar as the submission that the petitioner\r\nought to have held his hands till the order was passed\r\npursuant to the reply given to the show cause notice is\r\nalso unacceptable for the reason that the penalty of\r\ndismissal was also resolved to be imposed by the\r\nUniversity. Apart from it, being a post-decisional\r\nhearing, the decision to impose penalty of dismissal was\r\nclearly an act without jurisdiction, as no inquiry as\r\ncontemplated under the Service Rules was ever initiated\r\nagainst the petitioner. Therefore, the petitioner did have\r\na right to approach this Court, at this juncture, to stall\r\nthe fait from becoming an accompli. None of the\r\nsubmissions advanced by the learned senior counsel\r\nappearing for the University sounds acceptance, as the\r\nApex Court has clearly delineated the action to be taken\r\non a complaint under Section 9 of the Act in the case of  Dr. Vijayakumaran. It is made clear that the\r\nconsequence of obliterating the second show cause\r\nnotice will not however mean that the order of\r\nsuspension passed on the same day as that of the\r\nsecond show cause notice stands obliterated, as there is\r\nno challenge to the order of suspension. </b></p><p><b>19. Before I say omega to the case at hand, I deem\r\nit appropriate to quote the oft-quoted words of Justice\r\nFelix Frankfurter rendered, being a part of the\r\njudgment, in VITRELI v. SEATON11 reading:-\r\n“. . .if dismissal from employment is\r\nbased on a defined procedure, even\r\nthough generous beyond the\r\nrequirements that bind such agency, that\r\nprocedure must be scrupulously\r\nobserved…. This judicially evolved rule of\r\nadministrative law is now firmly\r\nestablished and, if I may add, rightly so.\r\nHe that takes the procedural sword shall\r\nperish with that sword.”  The history of liberty” said the same\r\nlearned Judge “has largely been the history of\r\nobservance of procedural safeguards” in\r\nMcNobb v. US12,\r\nThe said observations in the judgments (supra), in the\r\ncircumstances are apposite.</b></p><p><b> Writ Petition is allowed. </b><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\"><br></span></p>', '516ec7cbb82c5b75f8ab72ca3d491523.jpg', '01198f6cbd7caf548e5ed8024cde7d1c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-20', 1, '', '', '2021-07-21 00:41:13', '2021-07-21 00:48:05'),
(905, 'inj8EJemeP93vhrMgtrU7wEzo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prevention of Corruption Act, 1988. Employee of Society, registered under the Societies Registration Act, which receives funds from Government, is a \'public servant\' and liable for prosecution under the Act. Karnataka High Court.   ', '<p><b>G.Krishnegowda vs State of Karnataka</b></p><p><b>Criminal Petition 2801 of 2021 decided on 15 July 2021.</b></p><p><b><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Judgment Link:&nbsp;</span><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395516/1/CRLP2801-21-15-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395516/1/CRLP2801-21-15-07-2021.pdf</a></b></p><p><b>1. Corruption hurts everyone. Corruption erodes the trust of a common man in the system. Corruption effects the society, the industry, the economy, the mankind and the nation at large. Corruption has been in existence even during ancient times and it will continue to exist and our vision has to be to curb the same and make our nation corruption free.</b></p><p><b>2. Petitioner who is the sole accused in Crime No.2/2021 registered by the Anti Corruption&nbsp; Bureau&nbsp; (ACB), Chickkaballapura, for the offences punishable&nbsp; under Sections 13(1)(b) read with 13(2) of the Prevention of Corruption Act, 1988 (for short, \'P.C.Act\'), has filed this petition under Section 482 Cr.PC with a prayer to quash the FIR and all further proceedings in Crime No.2/2021&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">which is now pending before the Court of Principal District &amp; Sessions Judge, Chickkaballapura.</b></p><p><b>\"whether the petitioner who is an employee of Nirmithi Kendra which is a body registered under the Karnataka Societies Registration Act, 1960, can be prosecuted for the offences under the P.C.Act?\"</b></p><p><b>10.<span style=\"white-space:pre\">	</span>The undisputed facts of this case are, petitioner is an employee of Nirmithi Kendra, Chikkaballapura, which is a society registered&nbsp; under&nbsp; the&nbsp; Karnataka&nbsp; Societies Registration Act, 1960. The said Kendra has been undertaking civil construction works of the State Government assigned to it. Petitioner who is working as Project Manager of the Kendra has been looking after the said construction works in various sites.</b></p><p><b>11. The material on record would go to show that the Deputy Commissioner of the District is the Chairman of the Governing Body of the Kendra, while the Chief Executive Officer and the Deputy Secretary of the Zilla Panchayat are the Executive Chairman and the Member Secretary, respectively. There are many other senior Government officials who are the members of the Governing Body. The audit report of the Kendra which is available on record would go to show that the Kendra has been receiving funds from the State as well as from the&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Central Government. The word \'public servant\' as defined under Section 2(12) of the Karnataka Lokayukta Act</b></p><p><b>12. In the P.C.Act, the words \'public duty\' and \'public servant\' are defined in Sections 2(b) &amp; 2(c), respectively&nbsp;</b></p><p><b>13. From the reading of the definition of the word \'public servant\' as found in the P.C.Act, it is very clear that a person who holds an office by virtue of which he is authorized or required to perform any public duty, and any person or employee of any institution if it has been receiving or if it has received any financial assistance from the State or Central Government, shall be considered as a public servant. The explanation to Section 2(c) of the P.C.Act would further go to show that such a person may&nbsp; be appointed by the Government or not. Therefore, a public servant need not be a Government/civil&nbsp; servant,&nbsp; but a Government/civil servant is always a public servant.</b></p><p><b>14. The Hon\'ble Supreme Court in State of Gujarat vs Manusukhbhai Kanjibhai Shah\'s&nbsp; 2020 SCC Online 412 has held that an employee of a co-operative society which is controlled or aided by the Government is covered within the comprehensive definition of the word \'public servant\' as defined under the P.C.Act.</b></p><p><b>15...in the case on hand, the records would reveal&nbsp; that the Nirmithi Kendra in which the petitioner is employed has been receiving funds from the&nbsp; Central&nbsp; as well as the State Government.&nbsp;</b></p><p><b>20. Be that as it may, having regard to the fact that the Nirmithi Kendra in which the petitioner is employed has been receiving funds from the State and the Central Government and taking into consideration the definition of the word \'public servant\' as found in the P.C.Act, it cannot be but said that the petitioner is a public servant. Even if a person is not a public servant, but by virtue of his office if he is discharging public duty, then he is covered under the ambit of the P.C.Act.</b></p><p><b>21. Corruption in our country is a growing menace and P.C.Act being a welfare legislation is required to be interpreted keeping in mind the object and spirit of the statute. In furtherance of the fight against corruption a broad interpretation to the provisions of this statute is required to be given and the arms of this Act is required to be extended to the maximum. The offences under the P.C.Act can be invoked not only against a public servant&nbsp; but also against a person, who by virtue of his office has been discharging&nbsp; \'public&nbsp; duty\'.&nbsp;&nbsp;</b></p><p><b>25. Corruption is considered the single biggest problem faced by our country. It undermines democracy and rule of law and violates human rights. The corrupt take advantage of the loopholes in the legal system and that is why it has become a low risk but high profit business. Corruption to do the wrong thing is one thing, but when corruption reaches the stage of getting right things done which a citizen is legally entitled for, then the very moral fabric of the society is destroyed.</b></p><p><b>26. Good laws alone would be not sufficient to make our country corruption free, but there has to be effective enforcement of the same and efforts should be towards making the concerned accountable. Demanding bribe is a crime so is offering a bribe.</b></p><p><b>Criminal petition is dismissed.</b></p><p><br></p>', '63cb5d09d33f8c6286d0645f58efc647.jpg', 'a2e1e1e2b16f724215687906ae7adcdc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-15', 1, '', '', '2021-07-21 02:57:17', '2021-07-21 02:58:55'),
(906, 'qRvZrwRUqh2M0EAJYcMHMDmnR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'Corruption hurts everyone. Corruption erodes trust of a common man in the system. Anti corruption law shall be invoked against persons, who by virtue of their office are discharging public duty\'. Karnataka High Court. ', '<p><b>G.Krishnegowda vs State of Karnataka</b></p><p><b>Criminal Petition 2801 of 2021 decided on 15 July 2021.</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395516/1/CRLP2801-21-15-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395516/1/CRLP2801-21-15-07-2021.pdf</a></b></p><p><b>1. Corruption hurts everyone. Corruption erodes the trust of a common man in the system. Corruption effects the society, the industry, the economy, the mankind and the nation at large. Corruption has been in existence even during ancient times and it will continue to exist and our vision has to be to curb the same and make our nation corruption free.</b></p><p><span style=\"font-weight: bolder;\">21. Corruption in our country is a growing menace and P.C.Act being a welfare legislation is required to be interpreted keeping in mind the object and spirit of the statute. In furtherance of the fight against corruption a broad interpretation to the provisions of this statute is required to be given and the arms of this Act is required to be extended to the maximum. The offences under the P.C.Act can be invoked not only against a public servant  but also against a person, who by virtue of his office has been discharging  \'public  duty\'.  </span></p><p><span style=\"font-weight: bolder;\">25. Corruption is considered the single biggest problem faced by our country. It undermines democracy and rule of law and violates human rights. The corrupt take advantage of the loopholes in the legal system and that is why it has become a low risk but high profit business. Corruption to do the wrong thing is one thing, but when corruption reaches the stage of getting right things done which a citizen is legally entitled for, then the very moral fabric of the society is destroyed.</span></p><p><span style=\"font-weight: bolder;\">26. Good laws alone would be not sufficient to make our country corruption free, but there has to be effective enforcement of the same and efforts should be towards making the concerned accountable. Demanding bribe is a crime so is offering a bribe.</span></p><p><b>2. Petitioner who is the sole accused in Crime No.2/2021 registered by the Anti Corruption  Bureau  (ACB), Chickkaballapura, for the offences punishable  under Sections 13(1)(b) read with 13(2) of the Prevention of Corruption Act, 1988 (for short, \'P.C.Act\'), has filed this petition under Section 482 Cr.PC with a prayer to quash the FIR and all further proceedings in Crime No.2/2021 which is now pending before the Court of Principal District & Sessions Judge, Chickkaballapura.</b></p><p><b>\"whether the petitioner who is an employee of Nirmithi Kendra which is a body registered under the Karnataka Societies Registration Act, 1960, can be prosecuted for the offences under the P.C.Act?\"</b></p><p><b>10.<span style=\"white-space:pre\">	</span>The undisputed facts of this case are, petitioner is an employee of Nirmithi Kendra, Chikkaballapura, which is a society registered  under  the  Karnataka  Societies Registration Act, 1960. The said Kendra has been undertaking civil construction works of the State Government assigned to it. Petitioner who is working as Project Manager of the Kendra has been looking after the said construction works in various sites.</b></p><p><b>11. The material on record would go to show that the Deputy Commissioner of the District is the Chairman of the Governing Body of the Kendra, while the Chief Executive Officer and the Deputy Secretary of the Zilla Panchayat are the Executive Chairman and the Member Secretary, respectively. There are many other senior Government officials who are the members of the Governing Body. The audit report of the Kendra which is available on record would go to show that the Kendra has been receiving funds from the State as well as from the Central Government. The word \'public servant\' as defined under Section 2(12) of the Karnataka Lokayukta Act</b></p><p><b>12. In the P.C.Act, the words \'public duty\' and \'public servant\' are defined in Sections 2(b) & 2(c), respectively </b></p><p><b>13. From the reading of the definition of the word \'public servant\' as found in the P.C.Act, it is very clear that a person who holds an office by virtue of which he is authorized or required to perform any public duty, and any person or employee of any institution if it has been receiving or if it has received any financial assistance from the State or Central Government, shall be considered as a public servant. The explanation to Section 2(c) of the P.C.Act would further go to show that such a person may  be appointed by the Government or not. Therefore, a public servant need not be a Government/civil  servant,  but a Government/civil servant is always a public servant.</b></p><p><b>14. The Hon\'ble Supreme Court in State of Gujarat vs Manusukhbhai Kanjibhai Shah\'s  2020 SCC Online 412 has held that an employee of a co-operative society which is controlled or aided by the Government is covered within the comprehensive definition of the word \'public servant\' as defined under the P.C.Act.</b></p><p><b>15...in the case on hand, the records would reveal  that the Nirmithi Kendra in which the petitioner is employed has been receiving funds from the  Central  as well as the State Government. </b></p><p><b>20. Be that as it may, having regard to the fact that the Nirmithi Kendra in which the petitioner is employed has been receiving funds from the State and the Central Government and taking into consideration the definition of the word \'public servant\' as found in the P.C.Act, it cannot be but said that the petitioner is a public servant. Even if a person is not a public servant, but by virtue of his office if he is discharging public duty, then he is covered under the ambit of the P.C.Act.</b></p><p><br></p><p><b>Criminal petition is dismissed.</b></p><p><br></p>', 'ab45f9000043706011cfacf36c6359c2.jpg', 'd475f671dcb817f9d31340bdf0084d77.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-15', 1, '', '', '2021-07-21 03:11:18', '2021-07-21 03:12:32'),
(907, 'zXcXpkyyPlhhqPD2vO0Ky0Ay3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land acquisition. Mechanical and stereo type reasons cannot be regarded as adequate while considering objection to acquisition. Right to property being a human right, the landowner must be given proper notice and effective hearing. Karnataka High Court.  ', '<p><b>Jindal Aluminum and another vs The Government of Karnataka and others.&nbsp;</b></p><p><b>Writ Petition 11036 of 2020 decided on 9 July 2021.&nbsp;</b></p><p><b>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395517/1/WP11036-20-09-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395517/1/WP11036-20-09-07-2021.pdf</a></b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\"></b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Jindal Alluminium Ltd., and M/s. Prestige South City holdings have jointly presented this writ petition with a prayer inter alia to&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">quash three impugned notifications dated 30.06.2020 issued under Section 1(3), Section 3(1), and Section 28(1) of the Karnataka Industrial Area Development Act, 19661;and&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Notification dated 05.09.2020 issued under Section 28(4) of the Karnataka Industrial Area Development Act, 1966,</b></p><p><b>5. It is settled that High Court while exercising jurisdiction under Article 226 of the Constitution of India shall not ordinarily interfere with the acquisition process unless petitioner makes out an exceptional case.&nbsp;</b></p><p><b>10. The SLAO, having recorded that petitioners have indeed sought for the sketch to file additional objections, has rejected their request and proceeded to pass orders on 17.08.2020. Thus, the SLAO has neither found it necessary to reply nor to address the grievances of the land owner, which would lose its land due to acquisition and suffer other serious consequences as in this case.</b></p><p><b>18. It is thus amply clear that neither the SLAO nor the BMRCL officials had any clue about the land sought to be acquired before filing this writ petition and the Report from Survey Department Officials.</b></p><p><b>19. In Malligamma and Others Vs. State of Karnataka, Department of Industries Rep. by its Secretary and Others&nbsp;</b><span style=\"font-weight: bolder; font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">ILR 2013 KAR 4449</span><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">, relied upon by Shri. Holla, this Court has held that rejection of petitioner\'s objections on the ground that acquisition is in public interest and petitioner would be&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">given adequate compensation does not amount to consideration of objections. Mechanical and stereo type reasons cannot be regarded as adequate. Recording of reasons will show that SLAO has applied his mind to the case. It is further held that affording an opportunity of being heard is for a definite purpose and cannot be reduced to an empty formality. Though it is not necessary for SLAO to write a judgment as a Court of law does, he must at least state what arguments were canvassed and reasons for rejecting them.</b></p><p><b>20. Right to property under Article 300A is not only a constitutional right or a statutory right, but also a human right, though it is not a basic feature of the Constitution or a Fundamental right. The human rights are gaining multi- faceted dimension and right to property is considered very much a part of such new dimension (See. Tukaram Kana Joshi and Others Through Power-of-Attorney Holder Vs. Maharashtra Industrial Development Corporation and Others&nbsp;</b><span style=\"font-weight: bolder; font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">(2013) 1 SCC 353</span><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">. It therefore follows that when a citizen is&nbsp; deprived of his property right, he is entitled for a proper notice and effective hearing.</b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">31...this is a classic case of non-application of mind. The SLAO has shut the doors of petitioners on the ground that project had to be implemented expeditiously. He is a quasi-judicial authority vested with power to recommend to the State Government in matters of land acquisition. He&nbsp; has completely failed in discharging his duty.</b><br></p><p><b>32.<span style=\"white-space:pre\">	</span>Executive is expected to follow the \'Rule of law\'.&nbsp;</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">It cannot be gainsaid that in several cases, where faulty executive decisions are implemented lead to irreversible eventualities as in this case and the citizen shall be compelled to silently endure the ill effects of such decisions. If Civil servants act strictly as per Rule of Law the orders resulting from such exercise would need no interference in judicial review.</b></p><p><b>(a)<span style=\"white-space:pre\">	</span>Writ petition is allowed.</b></p>', '805e547d2512263619bf191e4117ca1e.jpg', '41a636e06929198217c199adf8a5f110.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-09', 1, '', '', '2021-07-21 03:41:21', '2021-07-21 03:41:21'),
(908, '8O185kpfbS5vsrnv8mNOQFpox', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Workmen\'s Compensation Act, 1923. When a claim petition is dismissed for non-prosecution, the claimant can NOT file a fresh petition on the same cause of action without getting the original claim petition restored. Karnataka High Court.  ', '<p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">The Divisional Manager New India Assurance Co. Ltd vs Halappa and another.</b><br></p><p><b>Miscellaneous First Appeal 24208 of 2011 decided on 5 July 2021. </b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395491/1/MFA9624-13-09-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395491/1/MFA9624-13-09-07-2021.pdf</a></b></p><p><b>Short question that arises for consideration in this appeal is whether after a claim petition was dismissed for non prosecution, the claimant can file a fresh petition on  the same cause of action without  getting  the  original claim petition restored.</b></p><p><b>3. The only contention advanced by the learned counsel Sri.Rajasekhar S Arani for the appellant is that since earlier claim petition in WC/NF/No.159/2005 was dismissed for non prosecution, the claimant is not entitled to file a fresh claim petition on the same cause of action.</b></p><p><b>6. There is no dispute about the fact that the Provisions of Civil Procedure Code 1908 (hereinafter referred to as “ CPC”) to the extent it is  permitted under  the Employee’s Compensation ( Central) Rules, 1924 is applicable for all proceedings before the learned Commissioner.</b></p><p><b>8....order IX of CPC is completely applicable  to  the  proceedings before the learned Commissioner.</b></p><p><b>9. It is borne out from the  records  that  the present claimant on the same cause of action had earlier filed WC/NF/ No. 159/2005 before the learned Workmen’s Compensation Commissioner, Hubballi and the same came to be dismissed for non prosecution on 27.02.2007. The records also disclose that consequently  he  filed restoration petition in Miscellaneous Case No.2 /2007 and after inquiry, the learned Workmen’s Compensation Commissioner, Hubballi dismissed the same by his order dated 15.04 .2008. Now, the question is whether the claimant can maintain a fresh claim petition when the earlier order of dismissing the proceedings for non- prosecution has became final.</b></p><p><b>11. ...the claimant shall be precluded from bringing a fresh claim petition  in  respect of the same cause of action. In that view of the matter, the fresh claim petition could not have been entertained by the learned Workmen’ s Compensation Commissioner, Hubballi.</b></p><p><b>i) The above appeal is allowed.</b></p><p><b><br></b></p><p><b>ii)<span style=\"white-space:pre\">	</span>The award dated 21.01 .2011 passed in WCA/NF:NO:95 /2009 by the learned Labour Officer and Commissioner for Workmen’s Compensation, Haveri is set aside.</b></p><div><br></div>', '70f72b6a5e3da8f6b1c83622e403bf1e.jpg', 'cf331b9fc5beae98465f887913bc1508.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-05', 1, '', '', '2021-07-21 13:31:53', '2021-07-21 13:32:45'),
(2667, 'H43ffM7Bb3biILEMZzBrpue54', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act. Vehicle covered under valid insurance policy driven by person without a driving licence at the time of accident. Insurance company has to pay compensation and recover the same from the owner. Karnataka High Court. ', '<p><b>B.S.Subbefowda and others vs P.P. Promod and others.&nbsp;</b></p><p><b>Miscellaneous First Appeal 9624 of 2013 decided on 9 July 2021.</b></p><p><b>Justice H.P. Sandesh.&nbsp;</b></p><p><b><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">This appeal is filed by the appellants/claimants challenging the judgment and award dated 06.07.2013 passed in M.V.C.No.8269/2011 on the file of the Motor Accident Claims Tribunal Court of Small Causes at Bengaluru (‘the Tribunal’ for short) questioning the quantum of compensation, apportioning 50% negligence on the driver of both the vehicles and fastening the liability on the owner of one of the offending vehicle.</span><br></b></p><p><b>15. Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3&nbsp; has violated the policy conditions. It is not in dispute that the vehicle is covered with policy.&nbsp;</b></p><p><b>16. The judgment of the Apex Court in the case of New India Assurance Company Limited v. Kusum and others with United India Insurance Company Limited v. Darshan Singh and others reported in (2009) 8 SCC 377, discussing Sections 147, 149(2)(a)(ii), 168 and 169 - Primary liability to pay held to be of driver not possessing valid driving licence and&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">owner of the vehicle. The Apex Court held that the Insurance Company is directed to pay the amount, faces immense difficulties in executing a decree and further held that executing courts directed to proceed with the execution and Insurer is not required to file a civil suit for recovery of the amount.</span></b></p><p><b>17. The judgment of the Apex Court in the case of Oriental Insurance Company Limited v. Angad Kol and others reported in (2009) 11 SCC 356, held that, if any&nbsp; breach of a condition of the insurance policy – Effect of – Valid driving licence not held by driver – If the insurer could recover from the person responsible for breach of the condition. The vehicle being driven by a person not having a valid driving license, held that, appellant could recover amount paid to claimants from driver and owner of the vehicle.</b></p><p><b>18. The judgment of the Apex Court in the case of United India Insurance Co. Ltd., v. Lehru and others reported in (2003) 3 SCC 338, even gone to the extent of even the driving license is a fake driving license if the insurer has not established that the owner had knowledge, ordered to pay and recover.</b></p><p><b>19. The Apex Court in Pappu’s case (supra), held that, Insurer taking plea that driver of offending truck had no valid license, Insurance Company is directed to pay award amount to the claimant in the first instance and in turn, recover the same from the owner of the vehicle.</b></p><p><b>20. The Apex Court also in Khenyei’s case (supra), held that the order can be made against sole impleaded tortfeasor. But in the case on hand, the claimants have filed the claim petition against all the tortfeasors and also they are represented and contested the matter and also apportioned the liability against each of them and in view of the representation made by respondent Nos.2 and 4, the question of awarding the entire compensation against the sole tort feasor does not arise.</b></p><p><b>21. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery.&nbsp; I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">compensation and recover the same from the insured. Hence, I answered point No.(i), accordingly.</span></b></p>', 'a088bf7865704ad851f6d78d3f224897.JPG', 'f2f082244425bb95fab2d9b3db4321e4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-13', 1, '', '', '2023-02-13 14:23:37', '2023-02-13 14:23:37'),
(910, 'XxRa21t3Sn3V7PWRs9u5W7D61', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Workmen\'s Compensation Act, 1923. Commissioner can\'t entirely go by the schedules in the Act to determine loss of earning capacity. Commissioner can award more compensation due to \'functional disability\' caused to a workman. Karnataka High Court. ', '<p><b>M/s. Bharat Emery Works and others vs The Commissioner, Workmens Compensation and another. </b></p><p><b>Miscellaneous First Appeal 21224 of 2009 decided on 13 July 2021.</b></p><p><b>Judgment Link:<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\"> </span><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395593/1/MFA21224-09-13-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395593/1/MFA21224-09-13-07-2021.pdf</a></b></p><p><b>This appeal is at the instance of respondent No.1-employer calling in question the legality of the award dated 19.02.2009 in WCA/SR No.122/2005 passed by the learned Labour Officer and Commissioner for Workmen’s Compensation, Sub Division II, Belgaum. </b></p><p><b>3.The only substantial question of law contended by the learned counsel appearing for the appellant is that as per Part-II of Schedule-I of the Employee’s Compensation Act, 1923, (for short “the Act”) for loss of three fingers of one hand, the loss of earning capacity should be taken at 30% and the learned </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Commissioner having determined the loss of earning capacity at 100%, has violated the norm fixed by the statute itself and, therefore, it is illegal.</b></p><p><b>7. In regard to the contention of the learned counsel for the appellant that the Schedule II of the Act having fixed the  loss of earning capacity at 30% for loss of three fingers in any one hand learned Commissioner had no jurisdiction to fix the loss of earning capacity at 100% is concerned, the said contention is liable to be noticed only to be rejected in view of the decision of the Hon’ble Supreme Court reported in 2010(2) Kar.L.J. 650 (Supreme Court) (S.  Suresh  v.  Oriental  Insurance Company Limited and another)</b></p><p><b>8. It is very relevant to make a reference to the observation of the Hon’ble Supreme Court at paragraph 14 in a decision reported in (2018) 4 SCC  571  (Jagadish  v.  Mohan and others)</b></p><p><b>9. The above decisions of the Hon’ble Supreme Court clearly suggest that the Courts while deciding cases in this jurisdiction have some latitude and they are not strictly bound  by the percentage of loss of earning capacity fixed in the schedule itself. Ultimately what is required to be borne in mind is the effect of the disability on ability of the workman to rehabilitate him in any other gainful employment on account of the employment related injury suffered by him. </b></p><p><b>The above appeal is dismissed.</b></p>', '802a2157e61fb112e679ce779ffd7a3b.jpg', 'bbddde03b80e772ae5cd7e4807ecef4d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-13', 1, '', '', '2021-07-21 19:15:22', '2021-07-21 19:17:42'),
(911, '6V6r5OM83KajDuSE1JHHwQvbl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Order 7 Rule 11. The court, while rejecting plaint, has NO power to allow plaintiff to cure defects in plaint and seek appropriate reliefs. Supreme Court. ', '<p><b>Sayyed Ayaz Ali vs Prakash G Goyal and others. </b></p><p><b>Civil Appeal Nos 2401-2402 of 2021\r\n@ SLP (C) Nos. 29975-29976 of 2018 decided on 20 July 2021.</b></p><p><b><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Justice </span><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Dr Dhananjaya Y Chandrachud and Justice M R Shah </span></b></p><p><b><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Judgment Link: </span><a href=\"https://main.sci.gov.in/supremecourt/2018/41613/41613_2018_35_1501_28654_Judgement_20-Jul-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/41613/41613_2018_35_1501_28654_Judgement_20-Jul-2021.pdf</a></b></p><p><b>2. The appellant is the plaintiff in a suit instituted before the Civil Judge, Senior\r\nDivision at Nagpur. The first respondent filed an application at Exhibit-50 for the\r\nrejection of the plaint on the ground that it was barred under clauses (b) and (d) of Order 7 Rule 11 of the Code of Civil Procedure 1908 (“CPC”). The Fifth Joint Civil\r\nJudge, Junior Division, Nagpur allowed the application. However, while doing so, the\r\nappellant was “directed to seek proper relief and pay court fee thereon within 15\r\ndays, otherwise appropriate order will be passed”. This order of the Trial Judge,\r\ninsofar as it permitted the appellant to carry out an amendment for seeking\r\nappropriate reliefs was assailed before the High Court in a Civil Revision Application\r\nNo 124 of 2017 by Defendants 1A to D and Defendant No 2 (Respondent Nos 1 to 5\r\nto these proceedings). The appellant instituted a Writ Petition1 under Article 227 of\r\nthe Constitution for challenging the order of the Trial Judge allowing the application\r\nunder Order 7 Rule 11 of the CPC. The High Court decided both the civil revision\r\napplication and the writ petition by a common judgment. The Single Judge held that\r\nsince the plaint was rejected under Order 7 Rule 11(d) there was no occasion to\r\ndirect that an amendment be made to the plaint. The civil revision was allowed on\r\nthis basis. The writ petition filed by the appellant was held to be an “after thought\r\nand belated” and no relief was granted to the appellant in the writ proceedings. That\r\nis how the proceedings have reached this Court. The appellant is essentially\r\naggrieved by the decision of the Trial Court and the High Court to allow the\r\napplication under Order 7 Rule 11(d) of the CPC.</b></p><p><b> 13 The High Court while exercising its revisional jurisdiction accepted the plea of\r\nthe first and second defendants that the Trial Judge, having allowed the application\r\nOrder 7 Rule 11(d), was not justified in granting to the appellant-plaintiff liberty to\r\namend the plaint by seeking appropriate reliefs and paying the court fee....The proviso quoted above deals with a situation where time has been fixed by the\r\nCourt for the correction of the valuation or for supplying of the requisite stamp paper.\r\nUnder the proviso, the time so fixed shall not be extended unless the court, for\r\nreasons to be recorded, is satisfied that the plaintiff was prevented by a cause of an\r\nexceptional nature from complying within the time fixed by the court and that a\r\nrefusal to extend time would cause grave injustice to the plaintiff. The proviso\r\nevidently covers the cases falling within the ambit of clauses (b) and (c) and has no\r\napplication to a rejection of a plaint under Order 7 Rule 11(d). In the circumstances, the High Court was justified in coming to the conclusion that the further direction\r\nthat was issued by the Trial Judge was not in consonance with law </b><br></p>', 'a38550b39f0279a4dfef1816980986a1.PNG', '743ae442d3c7c3d382ff460afea8efd9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-20', 1, '', '', '2021-07-21 23:45:29', '2021-07-22 01:04:13');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(912, '3yAKdzJX8XTPSL3NSmRNDVfIZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act, 1996. Power of court under Section 34 to set aside an award of an arbitrator does NOT include the power to modify such an award. Supreme Court. ', '<p><b>The Project Director, National Highways vs M. Hakeem and another.&nbsp;</b></p><p><b>Civil Appeal ...arising out of&nbsp;<span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">SLP (Civil) 13020 of 2020 decided on 20 July 2021.</span></b></p><p><b>Justice R. F. Nariman and Justice B.R. Gavai</b></p><p><b>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2020/22596/22596_2020_32_1502_28660_Judgement_20-Jul-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/22596/22596_2020_32_1502_28660_Judgement_20-Jul-2021.pdf</a></b></p><p><b>2. The appeals in the present case raise an interesting question of law\r\n– as to whether the power of a court under Section 34 of the\r\nArbitration and Conciliation Act, 1996 [“Arbitration Act”] to “set\r\naside” an award of an arbitrator would include the power to modify&nbsp;such an award. A Division Bench of the Madras High Court has\r\ndisposed of a large number of appeals filed under Section 37 of the\r\nsaid Act laying down as a matter of law that, at least insofar as\r\narbitral awards made under the National Highways Act, 1956\r\n[“National Highways Act”], Section 34 of the Arbitration Act must\r\nbe so read as to permit modification of an arbitral award made\r\nunder the National Highways Act so as to enhance compensation\r\nawarded by a learned Arbitrator.</b></p><p><b>13. Section 34 of the Arbitration Act, 1996 occurs in Chapter VII under\r\nthe title “Recourse against arbitral award”.&nbsp;<br></b></p><p><b>14. What is important to note is that, far from Section 34 being in the\r\nnature of an appellate provision, it provides only for setting aside\r\nawards on very limited grounds, such grounds being contained in\r\nsub-sections (2) and (3) of Section 34. Secondly, as the marginal&nbsp;note of Section 34 indicates, “recourse” to a court against an arbitral\r\naward may be made only by an application for setting aside such\r\naward in accordance with sub-sections (2) and (3). “Recourse” is\r\ndefined by P Ramanatha Aiyar’s Advanced Law Lexicon (3rd\r\nEdition) as the enforcement or method of enforcing a right. Where\r\nthe right is itself truncated, enforcement of such truncated right can\r\nalso be only limited in nature. What is clear from a reading of the\r\nsaid provisions is that, given the limited grounds of challenge under\r\nsub-sections (2) and (3), an application can only be made to set\r\naside an award. This becomes even clearer when we see subsection (4) under which, on receipt of an application under subsection (1) of Section 34, the court may adjourn the Section 34\r\nproceedings and give the arbitral tribunal an opportunity to resume\r\nthe arbitral proceedings or take such action as will eliminate the\r\ngrounds for setting aside the arbitral award. Here again, it is\r\nimportant to note that it is the opinion of the arbitral tribunal which\r\ncounts in order to eliminate the grounds for setting aside the award,\r\nwhich may be indicated by the court hearing the Section 34\r\napplication. <br></b></p><p><b>15. It is important to remember that Section 34 is modelled on the&nbsp;UNCITRAL Model Law on International Commercial Arbitration,\r\n1985, under which no power to modify an award is given to a court\r\nhearing a challenge to an award. <br></b></p><p><b>17. The statutory scheme under Section 34 of the Arbitration Act, 1996\r\nis in keeping with the UNCITRAL Model Law and the legislative\r\npolicy of minimal judicial interference in arbitral awards.<br></b></p><p><b>20. ....under the scheme of the old Act, an award may be remitted,\r\nmodified or otherwise set aside given the grounds contained in\r\nSection 30 of the 1940 Act, which are broader than the grounds\r\ncontained in Section 34 of the 1996 Act.&nbsp;<br></b></p><p><b>21. It is settled law that a Section 34 proceeding does not contain any\r\nchallenge on the merits of the award. This has been decided in\r\nMMTC Ltd. v. Vedanta Ltd., (2019) 4 SCC 163.</b></p><p><b>22. Likewise, in Ssangyong Engg. &amp; Construction Co. Ltd. v. NHAI,\r\n(2019) 15 SCC 131, this Court under the caption “Section 34(2)(a)\r\ndoes not entail a challenge to an arbitral award on merits” referred\r\nto this Court’s judgment in Renusagar Power Co. Ltd. v. General\r\nElectric Co., 1994 Supp (1) SCC 644, the Convention on the\r\nRecognition and Enforcement of Foreign Arbitral Awards, 1958 [the\r\n“New York Convention”] and various other authorities to conclude\r\nthat there could be no challenge on merits under the grounds\r\nmentioned in Section 34 - (see paras 34 to 48). This Court also\r\nheld, in Maharashtra State Electricity Distribution Co. Ltd. v.\r\nDatar Switchgear Ltd., (2018) 3 SCC 133 (at 170), that the court\r\nhearing a Section 34 petition does not sit in appeal (see para 51).&nbsp;</b></p><p><b>23. As a matter of fact, the point raised in the appeals stands\r\nconcluded in McDermott International Inc. v. Burn Standard Co.\r\nLtd., (2006) 11 SCC 181.&nbsp;<br></b></p><p><b>29. Thus, there can be no doubt that given the law laid down by this\r\nCourt, Section 34 of the Arbitration Act, 1996 cannot be held to\r\ninclude within it a power to modify an award.&nbsp;<br></b></p><p><b>46. Quite obviously if one were to include the power to modify an\r\naward in Section 34, one would be crossing the Lakshman Rekha\r\nand doing what, according to the justice of a case, ought to be&nbsp;done. In interpreting a statutory provision, a Judge must put himself\r\nin the shoes of Parliament and then ask whether Parliament\r\nintended this result. Parliament very clearly intended that no power\r\nof modification of an award exists in Section 34 of the Arbitration\r\nAct, 1996. It is only for Parliament to amend the aforesaid provision\r\nin the light of the experience of the courts in the working of the\r\nArbitration Act, 1996, and bring it in line with other legislations the\r\nworld over. &nbsp;<br></b></p><p><b><br></b></p><p><br></p>', '6384a7677fd1e3ea342f49f5ae1d690a.jpg', 'e27197e9cb4083d3764027685cac9ee9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-20', 1, '', '', '2021-07-22 00:09:06', '2021-07-22 00:09:06'),
(913, 'aLCGcOYXlOH5Sae59WymEvJgk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Section 482. Election disputes are being converted into criminal cases by clothing words in high moral fiber and strong legal content. High Courts can see through the game and stay such proceedings. Supreme Court. ', '<p><b>A.P.Mahesh Co-Operative Urban Bank Shareholders Welfare Association vs Ramesh Kumar Bung and others.</b></p><p><b>Special Leave Petition (Criminal) 3869 of 2021 decided on 20 July 2021. </b></p><p><b>Justice Indira Banerjee and Justice V. Ramasubramanian. </b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/12228/12228_2021_40_1501_28636_Judgement_20-Jul-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/12228/12228_2021_40_1501_28636_Judgement_20-Jul-2021.pdf</a></b></p><p><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">20. Therefore,  it was patently an election dispute which was sought to be converted to a criminal case. More often than not election disputes are fought on different  turfs, such as polling booths, police stations and court rooms. Sometimes, persons who raise these disputes manage to camouflage their real motive by words clothed in high moral fiber and strong legal content. But unfortunately, the petitioner could not do it successfully in this case, as the election disputes came to the court first before the petitioner could fall back upon allegations of loan fraud. Fortunately, the High Court saw through the game. This is why the High Court in its impugned order, granted the extraordinary relief of stay of further proceedings including the arrest of Respondents 1 to 3 herein. The facts are so glaring and the background setting so shocking, that the High Court correctly found it to be a fit and proper case to grant interim reliefs to Respondents 1­3 herein.</b><br></p><p><b>21. Having seen the factual aspects, let us now deal with the three questions of law on which the learned counsel for the petitioner sought to raise a high pitch. 22. As rightly pointed out by the learned senior counsel appearing for Respondents 1 to 3, Neeharika   Infrastructure vs Pvt. Ltd. vs. State of Maharashtra & Others (2021) SCC Online SC 315 certainly allowed space for the High Court to pass an interim order of the nature impugned  herein, “in exceptional cases with caution and circumspection </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">giving brief reasons”. What is frowned upon in Neeharika (supra) </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">is the tendency of the courts to pass blanket, cryptic, laconic, nonspeaking orders reading  “no coercive steps shall be adopted”.   In </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">Paragraph 60 of the Report in Neeharika (supra), this Court </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">recognized that there may be allegations of abuse of process of law, </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">converting a civil dispute into a criminal dispute, with a view to </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">pressurize the accused. In the order impugned in these petitions, </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">the  High  Court  has  given  elaborate  reasons as to how the </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">allegations of bank fraud were developed during the proceedings </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">concerning allegations of election fraud. Therefore, the impugned </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">order cannot be said to be bad in the light of Neeharika  principles.</b></p><p><b>23. In fact, Neeharika  reiterates the parameters laid down in the </b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">celebrated decision in State of Haryana  vs. Bhajan Lal </b><span style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\"><b>1992 Supp (1) SCC 335. </b></span><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\">In paragraph 37   of   the   decision   in  Neeharika, the above passage from Bhajan Lal is extracted.  In fact Bhajan Lal (supra) took note of the view expressed by Bhagwati, C.J. in Sheonandan Paswan  vs.  State of Bihar </b><b>(1987) 1 SCC 288</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\"> to the effect  “that a criminal prosecution, if otherwise justifiable and based upon adequate evidence, does not become vitiated on account of malafides or political vendetta of the first informant or complainant.” Yet Bhajan Lal  (supra) laid down seven principles in paragraph 102, the last which we extracted  above.  The seven principles enunciated   in paragraph 102 of  Bhajan Lal  (a two­ member Bench) are actually quoted with approval in Neeharika (a </b><b>three</b><b style=\"font-family: var(--cui-font-sans-serif); font-size: var(--cui-font-size-base, 1rem);\"> member Bench).</b></p><p><b>27. Therefore, we are of the considered view that the High Court was perfectly justified in granting interim protection to the Respondents 1 to 3 herein and in ensuring that the supremacy of the ballot is not sabotaged by the authority of the police. Hence the SLPs are dismissed. </b><br></p>', '96efc1aa812d51ea6429579c2820fb7b.jpeg', '4b8ccc041f3504e1d187a1d600321db1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-20', 1, '', '', '2021-07-22 00:58:33', '2021-07-22 01:04:47'),
(2865, 'AHTV2tPS9suZ86WoR7nXVrtF0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Property derived by a female Hindu post the amendment to Section 6 of the Hindu Succession Act would become her absolute property and a coparcenary or joint family cannot be created by or under her. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shivagangavva and others Vs Mahadevappa Fakkirappa Shigli and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular First Appeal 100288 of 2017 decided on 15 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj and Justice G Basavaraja.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>The case of the plaintiffs is that; </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.1.<span style=\"white-space: pre;\">	</span>One Veerabhadrappa was the propositus who had three children namely, Fakirappa, Mallappa and Gundappa. Mallappa had a daughter by name Neelavva of whom the plaintiffs are the daughters. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 4.3.<span style=\"white-space: pre;\">	</span>It is contended that the suit schedule properties were under the ownership of Veerabhadrappa and subsequent to his death the said properties came to be enjoyed by Fakirappa, Mallappa and Gundappa as joint owners. Fakirappa having expired on 27.07.1955, Mallappa having expired on 02.01.1977 and Gundappa also having expired subsequently. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.4.<span style=\"white-space: pre;\">	</span>The sons of Fakirappa, namely, defendants No.1, 2 and 3 succeeded to his property. The daughter of Mallappa namely, Neelavva succeeded to his property. The son of Gundappa namely, defendant No.4 succeeded to his property. Alleging that upon the expiry of Neelavva, the plaintiffs have succeeded to her share and as such, partition in respect of the share of Neelavva was sought for. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.5.<span style=\"white-space: pre;\">	</span>While praying so, it was contended that the sale executed by Neelavva in favour of defendants No.1 and 3 was illegal and not binding since there was no family and legal necessity for such sale.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>On the basis of the pleadings on record the trial Court framed the following issues: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.1.<span style=\"white-space: pre;\">	</span>Whether the plaintiffs prove that the suit schedule properties are joint family properties and they are in joint possession and enjoyment of the same? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.2.<span style=\"white-space: pre;\">	</span>Whether the plaintiffs further prove that they are entitled 1/3rd share in the suit properties by metes and bounds? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.3.<span style=\"white-space: pre;\">	</span>Whether the plaintiffs prove that the sale deeds executed in favour of defendants No.1 to 3 are illegal and not binding upon their share? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.4.<span style=\"white-space: pre;\">	</span>Whether the defendants prove that the suit is hit by non-joinder of necessary parties?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 7.5.<span style=\"white-space: pre;\">	</span>Whether the defendants prove that Smt.Neelavva was absolute owner of her 1/3rd share in the suit properties?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.6.<span style=\"white-space: pre;\">	</span>Whether the defendants prove that the said Neelavva for her legal necessity alienated her 1/3rd share in favour of Mahadevappa Shigli, Gundappa Shigli for valuable consideration by executing regiatered sale deeds in respect of suit schedule properties on 11.12.1992 and 31.12.1992 as contended in the written statement?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 7.7.<span style=\"white-space: pre;\">	</span>Whether the defendants prove that when the plaintiffs are not in joint possession they ought to have paid necessary court fee on the market value mentioned in the respective sale deeds? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.8.<span style=\"white-space: pre;\">	</span>Whether the plaintiffs are entitled for the relief as sought for? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.9.<span style=\"white-space: pre;\">	</span>What order or decree? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>The trial Court answered the above issues as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Issue No.1<span style=\"white-space: pre;\">	</span>: In the negative</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Issue No.2<span style=\"white-space: pre;\">	</span>: In the negative</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Issue No.3<span style=\"white-space: pre;\">	</span>: In the negative</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> Issue No.4<span style=\"white-space: pre;\">	</span>:Does not survive for consideration</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Issue No.5<span style=\"white-space: pre;\">	</span>: In the affirmative</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Issue No.6<span style=\"white-space: pre;\">	</span>: In the affirmative</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> Issue No.7<span style=\"white-space: pre;\">	</span>: In the affirmative</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Issue No.8<span style=\"white-space: pre;\">	</span>: In the negative</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">Issue No.9<span style=\"white-space: pre;\">	</span>: As per final order.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>Perusal of the said provision indicates that, any property possessed by a female Hindu whether acquired before or after the commencement of the Act will be held by her as full owner. The explanation provides the manner of acquisition and makes it applicable to both movable and immovable properties. The manner of acquisition covering inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any manner whatsoever. Though omnibus provision at the end of the provision, ‘in any other manner whatsoever’ would be sufficient to cover any other manner of acquisition by the female Hindu. The explanation deals with the acquisition of property “at a partition”, that is to say, if a female Hindu gets any right, title, interest or property at a partition, the said property would be her absolute property with absolute right to deal with the same. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">16.<span style=\"white-space: pre;\">	</span>In the present case, admittedly there being a partition between Neelavva and defendants No.1 to 4, 1/3rd   share of Mallappa came to Neelavva, that is to say that the acquisition of title of Neelavva was under a partition which was recorded in the mutation entry.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">20.<span style=\"white-space: pre;\">	</span>The aspect of family necessity is brought about to impose restriction on a Karta of a joint family, where the Karta being a male member is holding the property in trust and he is debarred from selling the property for otherwise than family necessity. That restriction cannot apply to a female Hindu under Section 14 of the HSA, who acquires title to a property which becomes her absolute property in terms of Section 14 of the HSA.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space: pre;\">	</span>Section 14 of the HSA has been dealt with hereinabove and makes it clear that any property of a female Hindu would be her absolute property. Section 6 of the HSA as it stood originally, did not recognize any right of a female Hindu in the coparcenary property. It is only on account of the amendment which came into effect from 09.09.2005, that a daughter of a coparcener would by birth become coparcener in her own right, in the same manner as sons and have the same rights in the coparcenery property as would be available to a son.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 24.<span style=\"white-space: pre;\">	</span>The copercenery property which is referred to under Section 6 of the HSA is the property of the father where she would become a coparcener. The property referred to in Section 6 of the HSA is not that of a female Hindu. Sub-section (2) of Section 6 provides a right to a female Hindu who succeeds in terms of Sub-section(1) of Section 6 to any coparcenery property, to dispose of the same by</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>testamentary disposition, thereby again reinforcing the view that the property acquired by a female Hindu will become her own individual property since no testamentary disposition can be made by a joint family property or ancestral property or coparcenary property. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25.<span style=\"white-space: pre;\">	</span>Thus on reading of Sub-section (2) of Section 6 of Hindu Succession Act in conjunction with Section 14 of the Hindu Succession Act, it is clear that any property succeeded to or devolved or derived for the benefit of a female would became her individual property and a coparcenary or joint family cannot be created by or under her. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">26.<span style=\"white-space: pre;\">	</span>Thus the submission made in this regard by the plaintiff is required to be rejected.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>28.<span style=\"white-space: pre;\">	</span>Neelavva being the absolute owner of the properties had every right to deal with the same which she has done and the said transaction being valid and binding on all parties, the plaintiffs cannot claim any right, title or interest in the same.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 29.<span style=\"white-space: pre;\">	</span>Thus, the finding of the trial Court being proper and correct it is not required any interference.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>32.<span style=\"white-space: pre;\">	</span>Section 15 of the Hindu Succession Act deals with rules of succession inasmuch as sub-section (1) of Section 15 states that, whenever a female Hindu dies intestate, the same shall firstly devolve upon sons and daughters secondly upon heirs of husband, thirdly upon mother and father, fourthly upon heirs of father and lastly upon heirs of mother, but however subject to sub-section (2) of Section 15 which mandates that, if any property is inherited by a female Hindu by her father or mother, the same shall devolve in the absence of her son or daughter not upon the other heirs referred to in sub-section (1), but upon the heirs of her father. That is to say that, if a property devolves upon a female Hindu from her father, unless she has a direct lineal descendant, the property would be succeeded to by the heirs of the father. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>33.<span style=\"white-space: pre;\">	</span>Similarly, in terms of clause (b) of sub-section (2) of Section 15 of the Hindu Succession Act, if the property is inherited by a female Hindu from her husband, then in the absence of any direct lineal descendant, the same would devolve upon the heirs of her husband, wherein her parents would not have any right.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 34.<span style=\"white-space: pre;\">	</span>Both under clauses (a) and (b) of sub-section (2) of Section 15 of the Hindu Succession Act, the rights of lineal descendants of female Hindu are protected, when the female Hindu dies intestate. This of course applies to intestate succession and does not prevent or impose any fetters on the female Hindu to deal with such properties during her lifetime, which fetter applies to a male Hindu. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>35.<span style=\"white-space: pre;\">	</span>Therefore, in our considered opinion there is a need to reconcile the position so as to safeguard the interest of the female Hindu who succeeds to any property of her father or grandfather, so as to protect the interest of the children in the same manner as the protection given to the property succeeded to by a male Hindu. More so, for the reason that the said female Hindu may also have daughters/sons and their interest is also required to be protected. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>36.<span style=\"white-space: pre;\">	</span>By way of the amendment which has come about to Section 6 of the Hindu Succession Act, though the right of the female Hindu is protected, the right of her children is not protected. Thus, any property succeeded to by a female Hindu from her father or grandfather or derived through partition would have to be deemed to constitute a joint family between herself and her children. The Legislature and the Law Commission are requested to look into this aspect.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The appeal stands dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ef6e25acc22d3184fb852d0e2bfff9d9.jpeg', '52cb384e715d90257d6aedf3ff89db37.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-05', 1, '', '', '2023-04-04 15:49:51', '2023-04-05 08:51:17');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(915, '0YkRvJRrnLkrok11ekMO10wLD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘Acid attack is not only a crime against victim, but a crime against the entire civilized society. It is high time to deal with the acid attackers with iron hand.’  Karnataka High Court upholds life sentence to acid attacker. ', '<p><b>Mahesha vs State by Malebennur Police.</b></p><p><b>Criminal Appeal 512 of 2016 decided on 22 July 2021.</b></p><p><b>Justice B.Veerappa and Justice V. Srishananda </b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/396310/1/CRLA512-16-22-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/396310/1/CRLA512-16-22-07-2021.pdf</a></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The accused filed the present criminal appeal against the impugned judgment of conviction and order of sentence dated 25.02.2016 made in S.C.No.86/2014 on the file of the II Additional District & Sessions Judge, Davangere sentencing him to undergo life imprisonment and to pay fine of Rupees Ten Lakhs with default clause for the offence punishable  under the provisions of Section 326A and sentencing him to undergo life imprisonment with fine of Rs.50,000/- for the offence punishable under Section 307 of IPC with default </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">clause.</b></p><p><b>2. The case of the prosecution is that, initially, the accused has made proposal to marry the victim-PW.8 and her family members did not give consent for the same, thereby, the accused felt disgusted and with an intention to take revenge on her, he decided that she should not marry anyone else and to disfigure her face or to take her life, on 31.01.2014 at about 4.40 p.m., when PW.8 was proceeding on public road situated near Malladara Gowramma house along with PW.3-Raghu, the accused came on his motorcycle bearing registration No.KA 17/EL 5938 with an intention to disfigure her face so as to prevent her from marrying anybody, he threw acid on her face, back, hands and caused grievous corrosive injuries and thus, disfigured her face and body. During the acid attack on PW.8-the  victim, acid also  fell on PW.3-Raghu and  he also sustained corrosive injures  on his face and head and thus, the accused caused corrosive injuries to both PW.8 & PW.3.</b></p><p><b>22. Normally, the injured would not allow the real culprit to escape from the rigors of law and falsely implicate an innocent. Our view is fortified by the dictum of this Court  in the case of Nagesh v. State of Karnataka reported in 2013 Cr.R. 826 (Kant), at Paragraph No.10 it is held as under: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\"Generally an injured does not implicate an innocent does not leave a person who has really caused harm.\"</b></p><p><b>23. Our view is also fortified by the dictum of the Hon\'ble Supreme Court in the case of  Vijay  Shankar Shinde & Ors vs. State Of Maharashtra reported in 2008 </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(1) Crimes 216 (SC). \'The evidence of injured person who is examined as a witness lends more credence, because normally he would not falsely implicate a person thereby protecting the actual assailant.\'</b></p><p><b>24. The Hon\'ble Supreme Court while considering the identical circumstances in the case of State of Madhya Pradesh vs. Mansingh & Ors reported in 2003 (3) Crimes 380 (SC) at Paragraph No.9 held as under: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\'Evidence of injured witnesses have  evidentiary value and unless compelling reasons exist, their statements are not discarded lightly.\'</b></p><p><b>30. Noting the increase in number of acid attack crimes and absence of suitable legislation in this regard in Indian Penal Code, the provisions of Section 326A of IPC  came to be introduced by the Legislature by Act 13 of 2013, with effect from 03.02.2013. The object of the amendment is to provide stringent punishment for crimes against women and also to provide more victim friendly procedure in the trial of such cases and the Committee recommended to make a specific provisions to award adequate punishment for such offences which cause grievous hurt by acid attack and also attempt thereof.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">31. Though, learned counsel for the appellant contended with vehemence for reduction of sentence, the overwhelming evidence adduced and produced by the prosecution clearly depicts that the accused has taken cruel step of pouring sulphuric acid on the head of the victim which likely cause death and the accused had the knowledge of consequences of throwing sulphuric acid. imposing adequate sentence for the offence under Section 326A of IPC, has noted his duty towards the protection of the society and a legitimate response to the  collective  conscience. The paramount principle that should be the guiding laser beam is that the punishment should be proportionate. It is the answer of law to the  social conscience. In a way, it is an obligation to the society which has reposed faith in the justice deliver system in curtailing  the evil. While imposing the sentence, it is the court’s accountability to remind itself about its role and  the reverence for the rule of law. Courts must evince the rationalised judicial discretion and not an individual  perception or a moral propensity. The Trial Court further held that if in the ultimate eventuate the proper sentence is not </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">awarded, the fundamental grammar of sentencing is guillotined  and  law  does  not  tolerate  it;  society  does  not </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">withstand it; and sanctity of conscience abhors it. It was observed that the old saying “the law can hunt one’s past” cannot be allowed to be buried in an indecent manner and  the rainbow of mercy, for no fathomable reason, should be </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">allowed to rule. The conception of mercy has its own space but it cannot occupy the whole accommodation.</b></p><p><b>32...The brutality act of the accused shocks the conscious of  this Court. Under the Constitution of India, which is called ‘Bhagavad Gita’, ‘right to life’ is the fundamental right guaranteed and it is the fundamental duty of the State to protect it. An ‘acid attack’ by the accused not only caused physical injuries, but left behind a permanent scar on the most cherished position of PW.8, who is a teacher and PW.3, who is the student studying in ‘U’ KG since their dignity, honour and reputation are involved. The ‘acid attack’ is not only a crime against PW.8 and PW.3, but a crime against the </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">entire civilized society. It is a crime against basic human rights and also violates the most cherished fundamental  rights guaranteed under Article-21 of the Constitution of India.</b></p><p><b>33. Great Saint and Scholar of our Country - Swami </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Vivekananda<span style=\"white-space:pre\">	</span>stated that “the best thermometer to<span style=\"white-space:pre\">	</span>the progress of a nation is its treatment of its women”. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Therefore, the acid attack by the accused on PW.8 to fulfill  his  wish to  marry  her against her will  and  her  parents,   is </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">violation of personal liberty as contemplated under Article 21 </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the Constitution of India.<span style=\"white-space:pre\">	</span></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">39. The Court must not only keep in view the rights </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the criminal, but also the rights of the victim of the crime and the society at large while considering the imposition of </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appropriate  punishment. Taking judicial note that such restorative  surgeries  cost a fortune  and if  unfortunately the </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">parents or the relatives of the victim are poor or even from middle class strata, they cannot afford or spend the huge </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">amount and ultimately even after series of surgeries the  result would be not fully restoring the damaged face as has </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">been done in the present case. Admittedly, in the present </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">case, the damage caused by the accused throwing acid on  the victim is immense, irreparable and cannot be retractable </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and the victim has to suffer throughout her life. Therefore,  the  accused  is not entitled for any  lenience  or mercy  to  be </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">shown. When a woman is thrown acid on her face, what is </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">inflicted is not merely physical injury but the deep sense of </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">some deathless shame. She has to hide her face to the Society and the victim woman body is not a plaything and </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the accused cannot take advantage  of it in order to satisfy  his avenger and the Society will not tolerate such things any </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">longer. The crimes against women continued in a never ending  cycle. As  throwing  acid on  young  women  or  young </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">lady and minor boy is more dangerous than  murder  and same  cannot be  tolerated  by  any  father,  mother, husband, </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">children of the women etc and society at large. Therefore, it  is  high  time  to  deal  with  the  criminals/acid  attackers with </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">iron hand.</b></p><p><b>42. Today, world is suffering from the menace of acid </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">attack. Number of countries are fighting against this menace across  the  globe.  The  study  conducted  by  United  Nations </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Children\'s Fund depicts \"Acid attack is a serious problem all over the world, even children are victims of acid attack in </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">many cases. In an Acid attack, acid is thrown at the face or body of the victim with deliberate intent to burn and </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">disfigure. Most of the victims are girls, many below the age   of  18,  who  have   rejected  sexual advances or marriage </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">proposals. Acid attack<span style=\"white-space:pre\">	</span>or vitriolage act of throwing acid onto  the  body of a person  “with  the intention of injuring </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">or disfiguring out of jealousy or revenge”. The most </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">common types of acid utilized in these assaults include sulphuric,nitric, and hydrochloric acid. Attack through acid </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">rarely  kills  but it causes  severe  physical, psychological  and social  scarring. The victims of acid<span style=\"white-space:pre\">	</span>violence<span style=\"white-space:pre\">	</span>are overwhelmingly women and<span style=\"white-space:pre\">	</span>children,<span style=\"white-space:pre\">	</span>and  attackers often </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">target the head and face in order to maim, disfigure  and  blind a person for life and push her in everlasting life of pain </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and apathy.\"</b></p><p><b>43. Over the last decade India is witnessing an alarming growth of acid attack especially on women. The contributing factors are various for these attacks. \"The main are social weakness of women in the society and the </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">existence of male dominated society.\" Moreover, the easy availability of acid in an inexpensive manner makes the perpetrators to use this as an ideal weapon against women. </b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">44. Acid  attack victim faces<span style=\"white-space:pre\">	</span>long-term consequences. After the attack, life of victim itself changes and even their loved ones starts to ignore the victim due to their horrific physical appearance. Such attack leaves victim handicapped in some way rendering them dependent on  either their spouse or family.</b><br></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">47. As per the National Crime Records Bureau of India, the acid attack in India from 2014 to 2019 is as under: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">year Number of Cases Reported</b></p><p><b>2014<span style=\"white-space:pre\">	</span>309</b></p><p><b>2015<span style=\"white-space:pre\">	</span>222</b></p><p><b>2016<span style=\"white-space:pre\">	</span>167</b></p><p><b>2017<span style=\"white-space:pre\">	</span>244</b></p><p><b>2018<span style=\"white-space:pre\">	</span>228</b></p><p><b>2019<span style=\"white-space:pre\">	</span>240</b></p><p><b>The case in hand is an example of uncivilized and heartless crime committed by the accused. It is completely unacceptable that concept of leniency or mercy can be conceived of in such a crime. A crime of this nature does not deserve any kind of clemency. Emphatically one has to say that it is individually as well as collectively intolerable. </b></p><p><b>learned Sessions Judge is justified in convicting the appellant/accused for the offence punishable under Section 326A of IPC and sentencing him to undergo imprisonment for life and to pay a fine off  Rs.10,00,000/- with default clause in the facts and circumstances of the case.</b></p><p><br></p>', '2b41a42dfc916e3e405e079470a018b5.PNG', 'ba3f798082b0c13eae30fec2b6e68bde.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-22', 1, '', '', '2021-07-23 21:03:53', '2021-07-23 21:12:06'),
(916, 'kQUlIgQjcWFpDzOwYDtTFC1I1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Municipalities Act, 1964. Constitution, abolition etc of smaller urban areas. Governor should form an opinion that objections to the proposed notification being insufficient or invalid. Non compliance renders notification invalid. Karnataka HC', '<p><b>B.Mallesh and others vs The State of Karnataka and others. </b></p><p><b>Writ Petition 6620 of 2021 decided on 23 July 2021.</b></p><p><b>Justice Aravind Kumar and Justice N.S.Sanjay Gowda.</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/396331/1/WP6620-21-23-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/396331/1/WP6620-21-23-07-2021.pdf</a></b></p><p><b>The Notification bearing No.NAE 148 MLR 2020 dated 05.03.2021 (Annexure-G) issued by first and second respondent by notifying the Gram Panchayat area of Vemagal and Kurugal, Kolar District including the Purahalli Village of Shettihalli Gram Panchayat and Kalva, Manjali, Chikkavallabhi and Bettahosapura Villages of Chowdenahalli Grama Panchayat of Kolar Taluk, Kolar District, as transitional area has been called in question</b></p><p><b>5. The sum and substance of the contentions raised by the petitioners interalia are:</b></p><p><b>(i) 90% of the villagers of Kurugal Panchayat are agriculturists and having lands, dairy, silk and dependent on this for their livelihood;</b></p><p><b>(ii) If Kurugal Panchayat is declared as a transitional area/pattana Panchayat along with Vemagal, people residing n Kurugal Panchayat will lose benefits they are getting hitherto;</b></p><p><b>(iii) The provisions of Section 3 of Karnataka Municipalities Act, 1964 (for short ‘Act’) has not been followed;</b></p><p><b>(iv) The provisions of Section 9 of the Act has not be followed.</b></p><p><b>10. Section 349 of the Act prescribe that  Governor may, having regard to the factors mentioned in Clauses (a) to (f) of sub-section (1) of Section 3 and subject to the provisions of Section 9 specify, by notification any area to be a transitional area. </b></p><p><b>11. Section 9 of the Act prescribes the procedure for constitution, abolition, etc., of smaller urban areas </b></p><p><b>12. A plain reading of Section 9 of the Act would clearly indicate that before publication of  any notification declaring any local area to be smaller urban area or altering limits of any such smaller urban area, the Governor should cause publication of a proclamation in the official Gazette in English and Kannada requiring all persons who entertain any objection to the said proposal to submit the same to the Director of Municipal Administration within thirty days from the date of such proclamation. The objections, so submitted in writing is required to be forwarded to the Governor within reasonable time by the Director of Municipal Administration. No such notification would be issued by the Governor unless the objections, if any, so submitted are in his opinion insufficient or invalid.</b></p><p><b>16. It is trite law that consideration of objections is to be on the basis of objective assessment and subjective satisfaction. It need not be stated in the order of  approval  granted  by  the  Hon’ble  Governor  that  each and every such objection has been examined or considered. Even if the submission note prepared by the Director of Municipal Administration forwarding every such objection along with objections so received and placed before the Governor would disclose that same has been considered, it would suffice. However, the objections so received by the Director of Municipal Administration for the proclamation has to be forwarded to the Governor and there is no intermediary role required to be played by the Deputy Commissioner.</b></p><p><b>18. It requires to be noticed from the aforesaid submission note that there is no reason assigned as  to  why said objections are to be over ruled. In other words, submission note placed before the Governor does not indicate as to why objections so received have to be held as insufficient or invalid. </b></p><p><b>21. At the outset, it requires to be noticed that report of the Deputy Commissioner is the basis on which the submission note has been forwarded  to  the Governor. The procedure prescribed under Section  9  does not indicate of any role required to be played by the Deputy Commissioner either in receiving the  objections or said report of Deputy Commissioner being forwarded  to the Governor. There is neither reference to the nature of objections in the submission note placed before the </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Governor namely, as to what is the nature of objections or why said objections to the proposed notification is insufficient or invalid. The submission note which is prepared by the Principal Secretary to the Government, Urban Development Department, do not disclose the details of those objections for being considered by the Governor either for being accepted or rejected. In other words, submission note does not disclose as to whether objection has been considered objectively or subjective satisfaction having been arrived at either by the Deputy Commissioner or Director, Municipal  Administration  and Governor on the basis of said submission note placed before him and Governor having found objections are insufficient or invalid.</b></p><p><b>22. The mandate of Section 9 of the Act being that Governor should form an opinion that objections to the proposed notification being insufficient or invalid, would alone qualify for notification being issued under Section 3 of the Act as otherwise not. </b></p><p><b>23. As already noticed hereinabove, even submission note does not disclose or indicate with regard to nature of the objections and its consideration thereof by the Urban Development Department which crystallized into submission note so as to arrive at a conclusion that submission note prepared and placed before Governor itself disclosed that consideration of objections being there for presuming that Governor had arrived at a subjective satisfaction on an objective assessment of such submission note. In the absence of these facts forthcoming from the file placed before the Governor, the irresistible conclusion which will have to be drawn is there is non compliance of mandatory provision of Section 9 of the Act.</b></p><p><b>Writ petition is allowed.</b></p>', 'da7887dba9daf9aa0917189959899446.PNG', '7c7b2729ef5f69e19bb934255d0d6bfb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-23', 1, '', '', '2021-07-24 00:18:43', '2021-07-24 00:20:20'),
(917, 'ade9tAN4p5wcvdCbsEWES1fAC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Excise Act 1965 and License Rules. Mere change of name of licensee under the Companies Act does not confer right to change name in excise license issued by the Excise Department under the Act and Rules. Karnataka High Court. ', '<p><b>M/s. More Retail Private Limited vs The State of Karnataka and others.</b></p><p><b>Writ Petition 10639 of 2019 decided on 20 July 2021.</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395945/1/WP10639-21-20-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395945/1/WP10639-21-20-07-2021.pdf</a></b></p><p><b>In these bunch of petitions, petitioners have sought for direction to the respondents to effect the change of name of the petitioners Company i.e. M/s More Retail Limited to M/s More Retail Private Limited in excise license Form CL-2 issued by the Government of Karnataka, Department of Excise on various dates.</b></p><p><b>4. Learned counsel for the petitioners submitted that initially the Company\'s name was M/s Aditya Birla Retail Limited and it was changed to M/s More Retail Limited and further to M/s More Retail Private Limited. The  excise license CL-2 stands in the name of M/s More Retail Limited. Government of India, Ministry of Corporate Affairs permitted change of name from M/s Aditya Birla Retail Limited to M/s More Retail Limited on 10.04.2019. Consequently, it was further renamed as M/s More Retail Private Limited on 15.12.2020.</b></p><p><b>5. Learned counsel for the petitioners is not disputing the fact that there is no provision under the Karnataka Excise Act, 1965 (Hereinafter referred to as the </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">`Act,  1965\'  for  short)  read  with  The  Karnataka  Excise (General Conditions of Licenses) Rules, 1967 </b></p><p><b>15. Merely change of name of M/s More Retail Limited to that of M/s More Retail Private Limited under the Companies Act, 1956 read with Companies Act, 2013, the petitioners do not have the right to change the name in excise licenses CL-2 issued by the Excise Department under the Act, 1965 read with Rules, 1967. </b></p><p><b>As specified in Section 13(6) of Income Tax Act, 1961, A Company changes its name by a special resolution and with due approval from the Central Government, but this only pertains to the name change and not other pivotal aspects. Even assets and liabilities and obligations would continue depending upon the terms and conditions. Whereas, name of the excise license holder cannot be changed as Act, 1965 read with Rules, 1967. On the other hand the aforesaid provision provides only for transfer with reference to three circumstances under Rule 17, 17A and 17B of Rules, 1967.</b></p><p><b>16.<span style=\"white-space:pre\">	</span>If the Act and Rules are silent in respect of issue/subject, in that event, it is not possible for this Court to give any directions for amending the Act or statutory Rules. It is for the Parliament/Legislature to amend the Act and Rules. It is well established law that no direction could be given in framing statute as it would be contrary to the Act and Rules.</b></p><p><b><br></b></p><p><b>Writ Petitions are dismissed </b></p>', '48aea4f8ce711b9093debeb2580164d1.jpg', '56686924840da8ec9f71219c7bf0e887.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-20', 1, '', '', '2021-07-24 01:56:40', '2021-07-24 01:58:42'),
(918, '0HCAihfW6KOJHvZI2a8OvkQx3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Section 482.  Frustrated litigants who have failed to succeed before the Civil Court initiating criminal proceedings amounts to abuse of process of law. Such proceedings are liable to be quashed. Karnataka High Court. ', '<p><b>Sukesh. N. vs The State of Karnataka and others. </b></p><p><b>Criminal Petition 200206 of 2020 decided on 19 July 2021. Justice Rajendra Badamikar. </b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/396286/1/CRLP200206-20-19-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/396286/1/CRLP200206-20-19-07-2021.pdf</a></b></p><p><b>The petitioners have filed this petition under Section </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">482 of Cr.P.C. for quashing the FIR registered in Crime No.84/2019 on the file of the Netaji Nagar Police Station, Raichur for the offences punishable under Sections 419, 420, 467, 468, 471 read with Section 34 of IPC.</b></p><p><b>9. It is also evident from Annexure-L that the present respondent No.2 has also filed suit in O.S.No.323/20105 for permanent injunction. It is important to note here that it is pertaining to house property No.L-229-LIG but no declaration was sought regarding title of respondent No.2. From Annexure-Q it is also evident that respondent No.2 has also filed an application under Order XII Rules 3 and 5 seeking direction to the defendant to admit the documents which came to be rejected by the learned civil judge. Annexure- S is the Succession Certificate issued in the name of the petitioner No.4 and his sister Arathi by Prl.Senior Civil Judge and CJM, Raichur. Hence, it is evident from the </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">records that the respondent No.2 is all along making attempts to establish his claim regarding Heirship of Saverappa. But he has not produced any material piece of evidence to substantiate his claim and only stamp paper does not confirm him any title and he could agitate his right before the competent civil Court by seeking declaration regarding the status or inheritance. But instead of doing so he is continuously using different tactics as it is evident and he himself is an attesting witness to a cancellation deed of 2011 alleged to have been executed by deceased Saverappa, who died two years prior to the said cancellation deed itself.</b></p><p><b>11. The learned counsel for the petitioners has argued that respondent No.2 instead of fighting a civil litigation he intend to give colour of criminal litigation to the civil litigation which cannot be permitted. In this context he further placed reliance on the decision reported in 2018 (2) Kar.L.R 864 in the case of  Mrs.Indira Poovaiah and Another vs. The State of Karnataka and Another wherein  this  Court  has  held that the frustrated litigants who has failed to succeed before the Civil Court should not be permitted to initiate criminal proceedings just to harass the other side with malafide intentions or the ulterior motive of wreaking vengeance. In the present case respondent No.2 is using the same tactics.</b></p><p><b>12. Further he has also placed reliance on the decision reported in 2019 (1) KCCR 543 in the case of V.Nagabhushan  and  Others  vs.  M/s.  N.K.Constructions,  Bengaluru  and Another, wherein it is observed that a civil litigation sought to be given a criminal colour shall not be allowed. In the instant case, the respondent No.2 is all along harping on the property of Saverappa. Undisputedly petitioner No.4 is the son of Saverappa. The respondent No.2 does not have any right when there are class-I heirs and his right is only on the basis of either a Will or a registered gift deed which is not forthcoming. Even in that event he has to substantiate  his right in the civil Court but, he is choosing a criminal remedy which disclose his intention. Hence, the same cannot be permitted.</b></p><p><b>14. Further in the case of AIR 2020 SC 626 in the case of Sardar Ali Khan vs. State  of  Uttar  Pradesh through Principal Secretary Home  Department and Anr., wherein the Hon\'ble Apex Court has observed that continuation of criminal proceedings during pendency of civil suit is nothing but an abuse of process of law and this Court in Crl.P.No.7702/2020 dated 04.03.2021 (Smt.Nirmala vs. State  of Karnataka and Others) has further observed that when civil suit is pending for 5 years regarding the validity of the documents, the initiation of criminal proceedings is abuse of process of law.</b></p><p><b>17. In all these decisions it is clearly held that when there is an abuse of process of law, the High Court can exercise the inherent powers under Section 482 of Cr.P.C. for quashing the proceedings. It is further held in the said citations that when the proceedings are civil in nature, then initiation of the criminal proceedings are required to be quashed. In the instant case also the dispute itself is of civil nature and under these circumstances, it is evident that the respondent No.2 is making a futile effort to substantiate his case without any documents being produced.</b></p><p><b>21. Under these circumstances, the entire proceedings initiated by the petitioners by lodging a complaint and issuance of FIR in Crime No.84/2019 is abuse of process of law and requires to be quashed. The Court cannot become silent spectator when there is abuse of process of law and accordingly, the petition requires to be allowed. Accordingly, I proceed to pass the following:</b></p><p><b>ORDER</b></p><p><b>The petition is allowed.</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'db720a379d3192c3231de1b44518cc60.PNG', '7ee9f856df63d2d6402301fad9592bb0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-19', 1, '', '', '2021-07-24 03:25:18', '2021-07-24 03:27:36'),
(919, 'DEqS5j8zQJxhihZJzxKY26dxF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Compounding of offences under Securities and Exchange Board of India Act, 1992. Court must obtain the views of SEBI for furnishing guidance to its ultimate decision. Supreme Court issues guidelines.', '<p><b>Prakash Gupta vs Securities and Exchange Board of India</b></p><p><b>Criminal Appeal 569 of 2021 decided on 23 July 2021.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: </b><a href=\"https://main.sci.gov.in/supremecourt/2019/17875/17875_2019_35_1501_28712_Judgement_23-Jul-2021.pdf\" target=\"_blank\" style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>https://main.sci.gov.in/supremecourt/2019/17875/17875_2019_35_1501_28712_Judgement_23-Jul-2021.pdf</b></a></p><p><b><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs: </span>89. Section 24(1) is an omnibus provision for all offences punishable for\r\ncontravention (or attempts or abetments) of the provisions of the Act or of any rule or\r\nregulation made under it. As we have seen earlier, prior to Amending Act 59 of 2002\r\nwhich came into effect from 29 October 2002, the punishment for offences extended\r\nto a period of one year of imprisonment, or with fine, or with both under Section\r\n24(1). The term of imprisonment has been extended to up to ten years and a fine of\r\nRs twenty-five crores by the amending legislation of 2002. The rationale for this\r\namendment, as evinced from its Statement of objects and reasons, was to provide <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">an effective deterrent for potential wrongdoers. Offences punishable under subSection (1) of Section 24 would cover a range of violations from the venial to the\r\nserious. The entrustment of the power to compound offences either before or after\r\nthe institution of any proceeding is to SAT or a Court before which such proceedings\r\nare pending. The provisions of Section 24A must be read in a manner consistent\r\nwith the object and purpose underlying the position of SEBI as an expert regulator.\r\nSEBI, as the regulator, is entrusted with diverse roles and functions including the\r\npower to regulate the securities’ market, make regulations and to enforce the\r\nprovisions of the Act. Its functions have been recognized in a panoply of statutory\r\nprovisions. Independent of initiating a prosecution, SEBI has been entrusted with\r\nwide ranging powers and functions including the power to investigate, to issue\r\ndirections and levy penalties and make cease and desist orders.</span></b></p><p><b>90 While the statute has entrusted the powers of compounding offences to SAT\r\nor to the Court, as the case may be, before which the proceedings are pending, the\r\nview of SEBI as an expert regulator must necessarily be borne in mind by the SAT\r\nand the Court, and would be entitled to a degree of deference. While SEBI does not\r\nhave a veto, having regard to the language of Section 24A, its views must be\r\nelicited. The view of SEBI, an envisaged in the FAQs accompanying SEBI’s circular\r\ndated 20 April 2007, must undoubtedly be sought by the SAT or the Court, to decide\r\non whether an offence should be compounded. For SEBI can provide an expert view\r\non the nature and gravity of the offence and its implication upon the protection of\r\ninvestors and the stability of the securities’ market. These considerations and others which SEBI may place before the SAT or the Court, would be of relevance in\r\ndetermining as to whether an application for compounding should be allowed. We,\r\ntherefore, hold that before taking a decision on whether to compound an offence\r\npunishable under Section 24 (1), the SAT or the Court must obtain the views of\r\nSEBI for furnishing guidance to its ultimate decision. These views, unless manifestly\r\narbitrary or mala fide, must be accorded a high degree of deference. The Court must\r\nbe wary of substituting its own wisdom on the gravity of the offence or the impact on\r\nthe markets, while discarding the expert opinion of the SEBI.</b></p><p><b>91 It is also important to note that the legislative scheme of the SEBI Act\r\ndelineates several actions that are liable for penalty under Section 15, but includes a\r\ncommon sentencing provision under Section 24. Therefore, Section 24 would be the\r\nsentencing provision for the most banal of offences, to the most egregious of market\r\ndisruptions and frauds. The maximum punishment prescribed under Section 24 has\r\nalso seen an amendment and increase by the Amending Act 59 of 2002, in order to\r\nensure effective deterrence. In exercising the power of compounding under Section\r\n24A, the SAT or the Court must be conscious of the gravity of the offences that the\r\naccused are being prosecuted for, considering that the legislative scheme does not\r\nindividually prescribe separate sentencing provisions which would otherwise have\r\nprovided an insight into the gravity and gradation of the offences. Hence, SEBI\'s\r\nview on the compounding would become all the more important, in this light.</b></p><p><b>F Guidelines for Compounding under Section 24A\r\n92 Section 24A only provides the SAT or the Court before which proceedings are\r\npending with the power to compound the offences, without providing any guideline\r\nas to when should this take place. Hence, we deem it necessary to elucidate upon\r\nsome guidelines which SAT or such Courts must take into account while\r\nadjudicating an application under Section 24A:\r\n</b></p><p><b>(i) They should consider the factors enumerated in SEBI’s circular dated 20\r\nApril 2007 and the accompanying FAQs, while deciding whether to allow an\r\napplication for a consent order or an application for compounding. These\r\nfactors, which are non-exhaustive, are:\r\n“Following factors, which are only indicative, may be taken\r\ninto consideration for the purpose of passing Consent Orders\r\nand also in the context of compounding of offences under the\r\nrespective statute:\r\n1. Whether violation is intentional.\r\n2. Party’s conduct in the investigation and disclosure of full\r\nfacts.\r\n3. Gravity of charge i.e. charge like fraud, market\r\nmanipulation or insider trading.\r\n4. History of non-compliance. Good track record of the\r\nviolator i.e. it had not been found guilty of similar or serious\r\nviolations in the past.\r\n5. Whether there were circumstances beyond the control of\r\nthe party.\r\n6. Violation is technical and/or minor in nature and whether\r\nviolation warrants penalty.\r\n7. Consideration of the amount of investors’ harm or party’s\r\ngain.\r\n8. Processes which have been introduced since the violation\r\nto minimize future violations/lapses.\r\n9. Compliance schedule proposed by the party.\r\n10. Economic benefits accruing to a party from delayed or\r\navoided compliance.\r\nPART F\r\n69\r\n11. Conditions where necessary to deter future noncompliance by the same or another party.\r\n12. Satisfaction of claim of investors regarding payment of\r\nmoney due to them or delivery of securities to them.\r\n13. Compliance of the civil enforcement action by the\r\naccused.\r\n14. Party has undergone any other regulatory enforcement\r\naction for the same violation.\r\n15. Any other factors necessary in the facts and\r\ncircumstances of the case.”\r\n</b></p><p><b>(ii) According to the circular dated 20 April 2007 and the accompanying FAQs,\r\nan accused while filing their application for compounding has to also submit a\r\ncopy to SEBI, so it can be placed before the HPAC. The recommendation of\r\nthe HPAC is then filed before the SAT or the Court, as the case may be. As\r\nsuch, the SAT or the Court must give due deference to such opinion. As\r\nmentioned above, the opinion of HPAC and SEBI indicates their position on\r\nthe effect of non-prosecution on maintainability of market structures. Hence,\r\nthe SAT or the Court must have cogent reasons to differ from the opinion\r\nprovided and should only do so when it believes the reasons provided by\r\nSEBI/HPAC are mala fide or manifestly arbitrary;\r\n</b></p><p><b>(iii) The SAT or Court should ensure that the proceedings under Section 24A do\r\nnot mirror a proceeding for quashing the criminal complaint under Section\r\n482 of the CrPC, thereby providing the accused a second bite at the cherry.\r\nThe principle behind compounding, as noted before in this judgment, is that\r\nthe aggrieved party has been restituted by the accused and it consents to\r\nend the dispute. Since the aggrieved party is not present before the SAT or\r\nthe Court and most of the offences are of a public character, it should be\r\nPART G\r\n70\r\ncircumspect in its role. In the generality of instances, it should rely on the\r\nSEBI’s opinion as to whether such restitution has taken place; and\r\n</b></p><p><b>(iv)Finally, the SAT or the Court should consider whether the offence committed\r\nby the party submitting the application under Section 24A is private in nature,\r\nor it is of a public character, the non-prosecution of which will affect others at\r\nlarge. As such, the latter should not be compounded, even if restitution has\r\ntaken place. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b><br></p>', '9788dbb1c51ae35fd152069890a16113.jpeg', 'f9d988c25f84873175a71a15ad0cd5ab.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-23', 1, '', '', '2021-07-25 22:41:14', '2021-07-25 22:50:35');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(920, 'WxZaN7CoQ8pEbGxrYXprtXyON', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Succession Act, 1925. Wills. Latest judgment of the Karnataka High Court on ingredients, revocation, alteration, proof of Will and evidence of handwriting expert. ', '<p><b>Hanumamma and others vs B.K.Ramaiah and others.</b></p><p><b>Regular First Appeal 564 of 2019 decided on 23 July 2021.</b></p><p><b>Justice Aravind Kumar and Justice N.S.Sanjay Gowda.</b></p><p><b>Judgment Link<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">: </span><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/396330/1/RFA564-19-23-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/396330/1/RFA564-19-23-07-2021.pdf</a></b></p><p><b>1.This appeal is by the plaintiffs who are aggrieved by dismissal of their suit O.S.No.1721/2005 in which they had&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sought for partition of two agricultural properties and herein after referred to as Schedule ‘A’ and ‘B’ properties.</b></p><p><b>53. A Will can be executed by every sound person who is not a minor. If the making of the Will or any part of it is caused by fraud or coercion or if the making of it is clouded by such importunity so as to take away the free agency of the testator, the same would be void.</b></p><p><b>54. A Will may be revoked or altered by the testator at any time when he is competent to dispose of his property by a Will.</b></p><p><b>55. As regards the manner in which a Will is to be executed, Section 63 of the Act mandates three rules that a testator is required to adhere to.</b></p><p><b>(i) Firstly, the testator is required to sign or affix his mark to the Will. A Will can also be signed by some other person in his presence and in his direction.</b></p><p><b>(ii) Secondly, the signature of the testator should be so placed that it was intended to give effect to the writing as a Will.</b></p><p><b>(iii) Thirdly, the Will shall be attested by two or more witnesses, each of whom has seen the testator signing the Will.</b></p><p><b>56. The attesting witnesses are thereafter required to sign the Will in the presence of the testator, though it is not necessary that more than one witness be present at the same or any particular form of attestation be made on the Will.</b></p><p><b>57. The attesting witnesses would be considered as attesting witnesses even if they witness the signing of the Will by some other person in the presence of the testator and under his direction. They would also be considered to be attesting witnesses if they receive a personal acknowledgment from the testator of his signature or mark or of the&nbsp; signature of such other person who has signed the Will in the presence of the testator and under his direction.</b></p><p><b>58. As far as revocation of Will is concerned, as per Section 70 of&nbsp; the&nbsp; Act,&nbsp; a&nbsp; Will&nbsp; shall&nbsp; be&nbsp; revoked&nbsp; on&nbsp; the&nbsp; testator’s&nbsp; marriage&nbsp; or by the execution of another Will or Codicil or by some writing declaring an intention to revoke the Will, subject to the condition that the said writing is executed in the&nbsp; same manner as a Will.</b></p><p><b>59. A Will can also be revoked by burning or tearing or by destroying it by the testator or by some person in his presence and under his direction with the intention to revoke the Will.</b></p><p><b>60. Thus, a Will stands revoked by execution of another Will&nbsp; &nbsp;or by some writing which declares the intention of the testator to revoke the Will. In either of these cases, the new Will or the writing expressing the declaration to revoke the Will is required to be executed in the same manner as is required for execution of a Will i.e., compliance of the three rules envisaged under Section 63 of the Act.</b></p><p><b>61. As far as proof of execution of the Will is concerned, since the Will is a document required to be attested by law, by virtue of Section 68 of the Indian Evidence Act, a Will is not permitted to be used as evidence unless at least one&nbsp; attesting witnesses has been called for the purpose of proving its execution. This requirement is subject to the condition that the attesting&nbsp; witness is alive and is subject to the process of the Court and is also capable of giving evidence.</b></p><p><b>62. If no attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting and the signature of the person executing the document is in the handwriting of that person.</b></p><p><b>63. It is also settled law that even if the execution of the Will is proved, the suspicious circumstances, if any, surrounding the execution of the Will are also required to be removed by the person who propounds the Will. In fact, this principle of law is manifested in Section 61 of the Act itself which declares that any Will obtained by fraud, coercion or importunity is void.</b></p><p><b>64. It may be pertinent to state here that the&nbsp; Apex Court in the case of Smt. Jaswanth Kaur vs Smt. Amrit Kaur and others (1977)&nbsp; 1&nbsp; SCC&nbsp; 369,&nbsp; after&nbsp; referring&nbsp; to&nbsp; the&nbsp; decision&nbsp; rendered&nbsp; in&nbsp; the case of R.Venkatachala Iyengar vs B.N. Thimmajamma AIR 1959 SC 443 has laid down the following propositions of law:</b></p><p><b>“1. Stated generally, a will has to be proved like&nbsp; &nbsp; any other document the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents so in the case of proof of wills, one cannot insist on proof with mathematical certainty.</b></p><p><b>2. Since Section 63 of the Succession&nbsp; Act&nbsp; requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if&nbsp; there be an attesting witness alive and subject to the process of the court and capable of giving evidence.</b></p><p><b>3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for depositing as to the circumstances in which the will came to be executed.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will&nbsp; and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.</b></p><p><b>4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.</b></p><p><b>5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">circumstances the court has to be satisfied fully that the will has been validly executed by the testator.</b></p><p><b>6. If a caveator alleges fraud, undue influence, coercion etc., in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a&nbsp; doubt as to whether the testator was acting of his&nbsp; &nbsp;own free will. And then it is a part of the initial onus&nbsp; of the propounder to remove all reasonable doubts in the matter.”</b></p><p><b>82. A&nbsp; person’s writing is a result of coordination of many muscles in the fingers, wrist, forearm and full arm. All of these parts come into play when a writing is created and only with constant practice, graphic maturity is reached. On attaining graphic maturity, writing becomes an automatic act. In other words, writing becomes a reflex action as a direct consequence of muscle memory.</b></p><p><b>83. However, if a person is illiterate or semi-literate, he would obviously have inadequate practice of writing and&nbsp; would&nbsp; not have thus reached graphic maturity. In&nbsp; other&nbsp; words,&nbsp; an illiterate or a semi-literate person would not have acquired the reflex act of writing i.e., the automatic act of writing. As a result, even if he were to learn writing the alphabets comprising&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">his name, one by one to make up his signature, by reason of insufficient and inadequate practice, the strokes would not be smooth, consistent and fluid. The&nbsp; net result would be&nbsp; that to the naked eye, the letters in his signature would be&nbsp; unsteady and their alignment would be haphazard.</b></p><p><b>88. In the book “Identification of Disputed Documents, Fingerprints and Ballistics” authored by Russell A. Gregory,&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">while elaborating on the Individuality of writing, the learned author has succinctly stated as follows:</b></p><p><b>“We recognise a person by his face, his&nbsp; figure, his walk or his talk. We do this, in spite of his smiling, or being serious, running or standing, laughing or crying. In each case, the precise details vary, but the general characteristics are there, by which we recognise him. So is the case with a person’s handwriting. It is by&nbsp; the&nbsp; study and analysis of these general characteristics that the identify of a writing can be established.”</b></p><p><b>89. A hand writing expert is thus required to examine these characteristics both individually and collectively and thereafter render his opinion in order to lend credence to the opinion. If the expert does not compare the admitted and disputed signatures in relation to the context of the letters found in the signatures with reference to their relative size, positioning, spacing and slant of the letters and also the alignment and shape of letters, the opinion rendered by him cannot be considered as an expert opinion worthy of acceptance.</b></p><p><b>99. In the light of this enunciation of law, it will have to be held that it is a well settled proposition of law that the opinion of an expert witness is not binding on the Courts and the Courts possess the freedom to disregard the opinion if it is not credible or reliable.</b></p><p><b>Appeal dismissed.&nbsp;</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'd288778ce0021763a76a0fd8c37c1b8b.png', '762fee0ea41c4d75213bb8516d403f22.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-23', 1, '', '', '2021-07-25 23:46:42', '2021-07-25 23:47:57'),
(921, '5cIfSDA5jIxXKqyPmt102RJZF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Writ of mandamus. Circumstances under which a writ of mandamus can be issued. Case law discussed. Karnataka High Court. ', '<p><b>M/s. More Retail Private Limited vs The State of Karnataka and others.</b></p><p><b>Writ Petition 10639 of 2019 decided on 20 July 2021.</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395945/1/WP10639-21-20-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395945/1/WP10639-21-20-07-2021.pdf</a></b></p><p><b>In these bunch of petitions, petitioners have sought for direction to the respondents to effect the change of name of the petitioners Company i.e. M/s More Retail Limited to M/s More Retail Private Limited in excise license Form CL-2 issued by the Government of Karnataka, Department of Excise on various dates.</b></p><p><b>23.<span style=\"white-space:pre\">	</span>In order to seek writ of mandamus one must have statutory and legal right. Therefore, it is necessary to analyse ‘Writ of Mandamus’.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">According to the Ninth Edition of Black\'s Law Dictionary,&nbsp; `Writ&nbsp; of&nbsp; Mandamus\'&nbsp; can&nbsp; be&nbsp; issued&nbsp; against&nbsp; an inferior court, a governmental body or officer by a superior court to rectify an action of the past or omission to act along the lines of the responsibility that they are entitled to. Writ of Mandamus can also be issued against public&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">corporations and tribunals. As it is directed to set the indolent authorities to task, it is also described as a “wakening call”, dictating their activity and setting them in action in pursuance of discharging public duty.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Mandamus according to Wharton\'s Law Lexicon, 15th Edition, 2009</b></p><p><b>\"A high prerogative writ of a most extensive remedial nature. In form it is a command issuing in the King\'s name from the King\'s Bench Division of the High Court only, and addressed to any person, corporation, or inferior court of judicature requiring them to do something therein specified, which appertains to their office, and which the court holds to be consonant to right and justice. It is used principally for public purposes, and to enforce performance of public duties. It enforces, however, some private rights when they are withheld by public officers.\"</b></p><p><b>Under the following circumstances, Writ Court can examine issuance of writ of mandamus:</b></p><p><b>- Mandamus</b></p><p><b>A writ of mandamus or mandamus (which means \"we command\" in Latin), or sometimes mandate, is the name of one of the prerogative writs in the common law, and is \"issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly\". The word \"mandamus\" appeared in a number of orders issued by the sovereigns who ruled England in the live centuries following the Norman Conquest. These orders however were&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not concerned with the grievances of the citizens. The first instance of mandamus being used for enforcing the fight of a private citizen was in 1615 when it was issued to a mayor and corporation to restore a burgess to his office unless they could show cause to the contrary. As no cause was shown, a peremptory order to restore him to the office was issued. By the early eighteenth century, it was used to compel performance of a variety of public duties which had been wrongly refused. Mandamus lies to enforce a public duty in the performance of which the petitioner has a sufficient legal interest, but he must show that he has demanded performance which has been refused. It is discretionary and will not&nbsp; be granted if there is an alternative remedy equally beneficial, convenient and effective.</b></p><p><b>The project covers the judicial control of the administrative actions by way of mandamus in India and the landmark judgments given by the apex Court in relation to it. It also elaborates the position of the Doctrine in U.K.</b></p><p><b>Definition of Mandamus</b></p><p><b>The order of mandamus is of a most extensive remedial nature, and is in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in nature of a public duty. Mandamus is not a writ of right, it is not consequently granted of course, but only at the discretion of the court to whom the application for it is made; and this discretion is not exercised in favour of the applicant, unless some just and useful purpose may be answered by the writ. A writ of mandamus or remedy is pre -eminently a public law remedy and is not generally available against private wrongs. It is used for enforcement of various&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">rights of the public or to compel the public statutory authorities to discharge their duties and to act within the bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties.</b></p><p><b>Interpretation of Public right and mandamus</b></p><p><b>Mandamus lies against authorities whose duty is to perform certain acts and they have failed to do so. Under following circumstances mandamus can be issued&nbsp;</b></p><p><b>(i) The applicant must have a legal right to the performance of a legal duty. It will not issue where to do or not to do an act is left to the discretion of the authority. It was refused where the legal duty arose from an agreement which was in dispute. The duty to be enforced by a writ mandamus could arise by a provision of the Constitution or of a statute or of the common law.</b></p><p><b>(ii) The legal duty must be of a public nature. In The Praga Tools Corporation v. C.V. Imanual,&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">A.l.R. 1969 S.C. 1306 and Sohanlal v. Union of India, A.I.R. 1957 S.C. 529: (1957) S.C.R. 738 the Supreme Court stated that mandamus might under certain circumstances lie against a private individual if it is established that he has colluded with a public authority.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">It will not issue against a private individual to enforce a private right such as a contract. Even though mandamus does not lie to enforce a contract inter parties, it will lie where the petitioner\'s contractual right with a third party is interfered with by the State. Mandamus will not issue to enforce departmental manuals or instructions not having any statutory force which do not give rise to any legal right in favour of the petitioner as in the cases of Raman &amp; Raman v.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">State of Madras, A.l.R. 1959 S.C. 694; State of Assam v. Ajit Kumar, A.l.R. 1965 S.C. 1196.</b></p><p><b>However if the authority were under law obliged to exercise discretion, mandamus would lie to exercise it in one way or the other. Mandamus can be issued to compel an income-tax officer to carry out the instructions issued by income-tax appellate tribunal exercising its appellate power. Again it can be issued to a municipality to discharge its statutory duty.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">There are however exceptions to this rule. Where there is no statutory provision, executive instructions fill in the gap and are capable of conferring rights on the citizen imposing obligations on the authorities. In appropriate cases the courts may even compel the performance of such a duty. Mandamus is not available where the order upon which the alleged right of the petitioner is founded is itself ultra vires. Similarly it was held that the grant of dearness allowance at a particular rate is a matter of grace and not a matter of right and hence mandamus cannot issue to compel the Government to pay dearness allowance at a particular rate. Article 320 (3) of the Constitution which provides that before a government servant is dismissed, the Union Public Service Commission should be consulted, does not confer any right on a public servant and hence failure to consult the Public Service Commission does not entitle the public servant to get mandamus for compelling the government to consult the Commission. Where provisions are merely directory, non- compliance with them does not render an act invalid and hence no mandamus issues.</b></p><p><b>(iii) The right sought to be enforced must be subsisting on the date of the petition. If the interest of the petitioner has been lawfully&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">terminated before that date, he is not entitled to the writ.</b></p><p><b>(iv)<span style=\"white-space:pre\">	</span>As a general rule, mandamus is not issued in anticipation of injury. There are exceptions to this rule. Anybody who is likely to be affected by the order of a public officer is entitled to bring an application for mandamus if the officer acts in contravention of his statutory duty. Thus an intending bidder at an auction is entitled to apply if the authority holding the auction acts contrary to the statute under which the auction is held or fails to perform his statutory duties in connection with the auction. A person against whom an illegal or unconstitutional order is made is entitled to apply to the court for redress even before such order is actually enforced against him or even before something to his detriment is done in pursuance of the order. For, the issue of such order constitutes an immediate encroachment on his rights and he can refuse to comply with it only at his peril.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Hence the writ of mandamus is to protect the interest of the public from the powers given to them to affect the rights and liabilities of the people. This writ makes sure that the power or the duties are not misused by the executive or administration and are duly fulfilled. It safeguards the public from the misuse of authority by the administrative bodies.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Although there are certain conditions also which were discussed in the project like all the alternative remedies should be exhausted and it should be a statutory duty and not discretionary in nature. Hence it forms one of basic tool in the hands of the common people against the administrative bodies if they do not fulfil the duties which by statutes they are bound to perform.</b></p><p><b>It is necessary to discuss the writ of&nbsp; mandamus to “Right of Constitutional Remedies for violation In pursuance of the Right to Constitutional Remedies for the violation of any of the enlisted fundamental rights under Part III or others that are enshrined in the Constitution of India or otherwise, both the Supreme Court and the High Courts have been vested with the authority of issuing<span style=\"white-space:pre\">	</span>\'writs´<span style=\"white-space:pre\">	</span>under Article 32 and 226 respectively. There are five types of writs that are issued in India: Habeas Corpus, Prohibition, Certiorari, Mandamus and Quo Warranto. Out of these, the writ of mandamus, which&nbsp; is&nbsp; a&nbsp; Latin&nbsp; term&nbsp; for&nbsp; \'we&nbsp; command´,&nbsp; is&nbsp; an authoritative writ issued by a higher court to oblige a lower court or some government official(s) to dispense their sanctioned duties compulsorily and correctly.</b></p><p><b>According to the ninth edition of Black\'s Law Dictionary, for `writ of mandamus\', the following issues are required to be taken note of:</b></p><p><b>Justification of the writ of mandamus</b></p><p><b>Mandamus is remedial in nature and cannot be expressed as a writ of right as it is issued only at the discretion of the court after the applicant of the same is able to prove to the Court that some utilitarian or just question would be answered by the writ. The essential grounds necessary for the issuance of Mandamus have been enlisted below:</b></p><p><b>• There exists a legally sanctioned right of the petitioner or the applicant of the writ and a violation or compromise of this right has been committed.</b></p><p><b>• The infringement of the rights of an applicant can be done by a public authority in the following&nbsp; manners:</b></p><p><b>1. Crossing the limits of the powers and duties vested to their office.</b></p><p><b>2. Failure or omission to act responsibly according to the conditions laid down by the law for the exercise of their power.</b></p><p><b>3. Denial by an official or authority to perform their statutory duties.</b></p><p><b>4. A complete disregard for or contravention of the principles of natural justice.</b></p><p><b>• Another ground for the legality of issuing the writ of mandamus is the failure to act or perform the legal duty despite being demanded by the applicant for the same. This was also upheld by the Supreme Court&nbsp; in&nbsp; Saraswati&nbsp; Industrial&nbsp; Syndicate&nbsp; &nbsp;v. Union of India.</b></p><p><b>The writ of mandamus can be rightly described as a legal instrument of ensuring general public interest, safeguarding their rights promised to them in the Constitution and other laws of the land. It is also an effective mechanism for maintaining accountability of the state or public authorities and mandating them to comply with their constitutional and statutory obligations. Thus, writ of mandamus is essentially a pro- democratic mechanism which empowers the common people to get their rights enforced by the administrative bodies.</b></p><p><b>24. Writ Court cannot issue writ of mandamus in the absence of statutory right read with duties of the pubic authorities. Supreme Court in Mani Subrat Jain&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">V. State oƒ Haryana reported in (1977 )1 SCC 486 held as under:</b></p><p><b>\"9. The High Court rightly dismissed the petitions. It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do something or to abstain from doing something (See Halsbury\'s&nbsp; Laws&nbsp; of&nbsp; England&nbsp; 4th&nbsp; Ed.&nbsp; Vol.&nbsp; l, paragraph&nbsp; l22;&nbsp; State&nbsp; of&nbsp; Haryana&nbsp; v.&nbsp; Subash Chander&nbsp; &nbsp; Marwaha&nbsp; &nbsp; &amp;&nbsp; &nbsp; Ors.&nbsp; &nbsp; (l)&nbsp; &nbsp; Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed &amp; Ors. (2) and Ferris Extraordinary Legal Remedies paragraph l98.\"</b></p><p><b>Hon’ble Supreme Court in Kolkata Metropolitan Development&nbsp; Authority&nbsp; –vs- Pradip Kumar Ghosh and others reported in (2018)13 SCC 623 has dealt with the matter (Refer paras. 18, 19, 20, 21, 22, 23, 24, 25, 26)&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">considered the issue relating to mandamus/direction under Article 226 of Constitution, while reiterating demand/ representation read with legal right, judicially enforceable right as well as on a legally protected right.</b></p><p><b>25. In the light of the aforesaid analysis of factual and legal aspects, the following order is passed:</b></p><p><b>Writ Petition dismissed.&nbsp;</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b>Writ Petitions are dismissed&nbsp;</b></p>', '2da24ace491b5765b891d316837ba1ef.jpg', '2bff217260777bd01f7bda3eb510eda0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-20', 1, '', '', '2021-07-26 01:10:32', '2021-07-26 01:10:32'),
(922, 'TWF0EKJL0DCLsdHOS2ydOj89k', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SARFAESI Act. Jurisdiction of Civil Court is NOT ousted to adjudicate dispute prior to mortgage in favour of bank. Suit challenging very validity of mortgage in favour of bank is maintainable. Karnataka High Court. ', '<p><b>Nanjamma vs N. Narasimhamurthy and others</b></p><p><b>Regular First Appeal 1397 of 2019 decided on </b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">THE HON’BLE MR. JUSTICE M.I.ARUN </b><br></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/396938/1/RFA1397-19-16-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/396938/1/RFA1397-19-16-07-2021.pdf</a></b><br></p><p><b>This appeal is filed by the plaintiff against the order dated 23.04.2019 passed by XXII Additional City Civil and Sessions Judge, Bengaluru, on I.A.No.5 in O.S.No.3780/2017. By the impugned order, the trial court has allowed I.A.No.5 filed by defendant no.4 under Order VII Rule 11(b) and (d) of CPC and has rejected the plaint as not maintainable in view of the bar under Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘SARFAESI Act’).</b></p><p><b>9.The question that arises for consideration in this appeal is whether the Debts Recovery Tribunal is authorized to adjudicate upon a matter where the transaction in respect of the suit schedule property prior to mortgage of the same in favour of the Bank is under challenge.</b></p><p><b>13. The High Court of Judicature at Bombay in Bank of Baroda vs Gopal Shriram Panda [2021 SCC OnLine Bom 466] has exhaustively dealt with the powers of the Debts Recovery Tribunal to try cases under the SARFAESI Act</b></p><p><b>15. A reading of the aforementioned provisions of the SARFAESI Act in Sections 13(4), 17 and 34 supra and the aforementioned judgments makes it clear that the jurisdiction of the Civil Court is ousted only in respect of those proceedings which are exclusively triable by the Debts Recovery Tribunal under the provisions of Section 17 of the SARFAESI Act. In other aspects, the Civil Court has jurisdiction to try the case. In the process, as a consequential relief, the Civil Court can always adjudicate as to whether the mortgage done in favour of a Bank is valid  or not.</b></p><p><b>16. As per the provisions of Section 17 of the SARFAESI Act, the Debts Recovery Tribunal can adjudicate matters pertaining to measures referred to in sub-section (4) of Section 13 taken by the secured creditor is in accordance with law or not and the claims of any tenancy or leasehold rights upon the secured asset. It is not empowered to adjudicate on other matters. It cannot adjudicate, as in the instant case, as to whether the mortgager played any fraud on his vendor and got the suit schedule property registered in his name which is much prior to mortgage of the same in favour of the Bank. Such disputes are triable only by the Civil Court.</b></p><p><b>20. No doubt any person who is aggrieved of the action of the Bank under Section 13(4) of the SARFAESI Act can make an application before the Debts Recovery Tribunal under Section 17 of the SARFAESI Act and the jurisdiction  of the Civil Court is ousted as per the provisions of Section 34 of the SARFAESI Act and that ‘any person’ need not be a borrower or guarantor and can be any other person who is aggrieved by the action of the Bank. However, if the challenge is mainly to an action or transaction not covered under the provisions of the SARFAESI Act, in that event, the</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> jurisdiction of Civil Court is not ousted. In the instant case, the challenge is to the execution of the sale deed by the plaintiff in favour of defendant no.1 and consequential relief against the Bank is prayed for an action initiated by it under the provisions of Section 13(4) of the SARFAESI Act. The Debts Recovery Tribunal cannot try such a dispute.</b></p><p><b>22. For the reasons mentioned above, I am of the opinion that in the instant case, the jurisdiction of Civil Court is not ousted. However, Civil Courts have to be extremely  cautious while granting any interim order or judgment against the Bank and it should be awake to the fact that the plaintiff and defendant nos.1 to 3 might have filed the suit collusively to defeat the interest of the Bank. In the course of the trial, it is possible that defendant nos.1 and 3 may not appear at all or conduct themselves so as to support the case of the plaintiff to defeat the interest of the Bank. This fact has to be kept in mind by the trial court while  </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appreciating the evidence produced before it in respect of any fraud that is alleged. Further, as the aspect of  limitation and undervaluation of the suit is not examined by the trial court, the defendant no.4-bank is at liberty to again urge the said contentions and file such applications as it deems fit before trial court.  </b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The appeal is allowed.The Civil Court has the necessary jurisdiction to try the dispute on hand and consequently, the matter is remanded back to the trial court;</b></p>', '78dcfdaf575039f344e5415c034296c8.jpg', '48523825ddbf844048ce16af73344e94.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-16', 1, '', '', '2021-07-27 00:54:48', '2021-07-27 00:56:20'),
(923, 'z49AJgYjojzzfYLAPHPQL6afP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act. Comprehensive policy covers employee of owner of vehicle involved in accident. Insurance company is liable to pay compensation for death of such employee. Karnataka High Court. ', '<p><b>M/s ARRK Toolking Sermo India Pvt Ltd vs M/s. Perfect Moulds Ltd</b></p><p><b>Miscellaneous First Appeal 9179 of 2010 decided on 15 July 2021.&nbsp;</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">THE HON\'BLE MR. JUSTICE H.P. SANDESH&nbsp;</b><br></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/396787/1/MFA9179-10-15-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/396787/1/MFA9179-10-15-07-2021.pdf</a></b><br></p><p><b>This appeal is filed challenging the judgment and award passed in MVC No.4481/2001 dated 21.07.2010 on the file of the MACT, Court of Small Causes, Bengaluru City, (SCCH.10) (‘the Tribunal’ for short), questioning the liability.</b></p><p><b>26. Having considered the principles laid down in the decision in National Insurance Company Limited v. Balakrishnan and Another, reported in (2013)1 SCC 731, , and keeping in view of the discussion made at para Nos.24 to 27 and so also considering the factual aspects of the case, in the similar set of circumstances, the Managing Director travelled in the Company owned vehicle and in the case on hand also, the deceased, who&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was working as a Manager travelled in the Company owned vehicle. Taking into consideration of the subsequent circulars issued by IRDA dated 16.11.2009 and 03.12.2009, which has been discussed by the Apex Court in the said judgment, the very contention of the Insurance Company that it is not liable to pay compensation, cannot be accepted and those two decisions referred by the Insurance Company are rendered prior to issuing of the circulars dated 16.11.2009 and 03.12.2009. Hence, I am of the opinion that in the light of the principles laid down by the Apex Court in Balakrishnan’s case, the Insurance Company is liable to pay the compensation. In the present case on hand also, the policy is comprehensive policy and the discussion made in para Nos.24 to 27 of the judgment is aptly applicable to the case on hand and the subsequent circulars are clear that the Insurance Company cannot disown its liability contending that the policy not covers the risk of the employee and the insured. The policy – Ex.R1 covers the risk of the employee who travelled in the car which belongs to the Company as gratuitous passenger as held in Balakrishnan’s case in comprehensive policy.</b></p><p><b>The appeal is hereby allowed.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Insurance Company/respondent No.5 is directed to deposit the compensation amount before the Tribunal within six weeks’ from today</b></p><p><b><br></b></p><p><br></p>', 'be7b34684b977c0f47c845f31bd0ea2f.jpg', 'fc6351a1504800fedd37a02ce7731634.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-15', 1, '', '', '2021-07-27 01:25:14', '2021-07-27 01:28:43'),
(924, 'IfUVMBdFwDG8rDTIhHe8wLkex', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Payment of Gratuity Act, 1972. Termination of employee on ground of cancellation of caste certificate does not by itself constitute \'offence involving moral turpitude\'. Gratuity amount can not be denied on this ground. Karnataka High Court.   ', '<p><b>The General Manager (P) Canara Bank vs The Appellate Authority under Payment of Gratuity Act and another. </b></p><p><b>Writ Petition 11410 of 2021 decided on 8 July 2021. </b></p><p><b>Judgment Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395946/1/WP11410-21-08-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/395946/1/WP11410-21-08-07-2021.pdf</a></b></p><p><b>Section 4(6)(b)(ii) of the Act, 1972 is in respect of moral turpitude of an employee with reference to such offence committed while he was in the course of his employment. </b></p><p><b>3. Learned counsel for the petitioner - Bank vehemently contended that the petitioner-Bank has cancelled the order of appointment issued to respondent No.2 and terminating his services on 27.09.2017 with reference to the cancellation of caste certificate dated 19.7.1978 issued in favour of respondent No.2 in view of the letter of the District Caste and Income Verification Committee dated 07.09.2017. Learned counsel for the petitioner submitted that once the services of respondent No.2 is terminated pursuant to cancellation of caste certificate, respondent No.2 is not entitled to gratuity. It is submitted that petitioner is not entitled to have the benefit of gratuity in view of Section 4(6)(b)(ii) of the Act, 1972. </b><br></p><p><b>4. Payment of gratuity.- </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(6) Notwithstanding anything contained in sub-Section (1),-(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.</b></p><p><b>The petitioner Bank has not launched criminal proceedings so as to prove offence in the Court of law. Termination and cancellation of appointment order of 2nd Respondent is with reference to cancellation of caste certificate. Therefore, sub-section 6(b) (ii) of Section 4 of Act, 1972 is not attracted so as to deny gratuity amount to the 2nd respondent. Therefore, there is no infirmity in the order of Appellate Authority dated 22.12.2020. Hence, petitioner - Bank has not made out a case so as to interfere with the impugned order dated 22.12.2020 passed by the Appellate Authority vide Annexure-A. Hence, the following:</b></p><p><b>Writ Petition stands dismissed </b></p><p><br></p>', '27efa7fe13bba62893a446d9cdc2197e.jpg', '27ddfbb3d3034a17a58cd9628f367742.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-08', 1, '', '', '2021-07-27 22:06:29', '2021-07-28 15:02:14'),
(925, 'hl3ot1zrDUBTQ5CXkEabzw2qe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Lokayukta Act, 1984. Employees of statutory bodies and government companies are not \'government servants\' though they are \'public servants\'.  Government cannot entrust inquiry against them to Lokayukta under CCA Rules. Karnataka High Court. ', '<p><b>R.F.Hudedavar vs The State of Karnataka and others </b></p><p><b>Writ Petition 12300 of 2020 decided on 23 July 2021</b></p><p><b>Justice B.V. Nagarathna and Justice Hanchate Sanjeevkumar</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/397426/1/WP12300-20-23-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/397426/1/WP12300-20-23-07-2021.pdf</a></b></p><p><b>29. The entrustment of the inquiry in the instant case has been made by the State Government, which is the competent authority under Rule 14-A of the CCA Rules, to the Lokayukta, which is questioned by the petitioners herein. It is necessary to note that Rule 14-A of the CCA Rules applies only to Government servants and not public servants. As to the definition of Government servants under CCA Rules is concerned, Rule 2(d) of the CCA Rules defines a “Government Servant” in identical terms as “Government Servant” is defined under the KL Act. The expression ‘Government servant’ under the CCA Rules does not include within its scope and ambit a ‘public servant’. The same is also the position on a reading of the definitions of “Government servant” and “public servant” under the KL Act. Therefore, Rule 14-A of the CCA Rules applies to a “Government servant” and not to a “public servant”. That is why the expression “Government servant” is defined under Rule 2(d) of the CCA Rules but the said Rules do not define a “public servant”. On the other hand, a reading of Rule 3 of CCA Rules would make the position clear inasmuch as, while the CCA Rules apply to all Government servants, Rule 3 of the CCA Rules is an </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">exception. On a reading of the same, it is clear that the CCA Rules do not apply to persons for whose appointment and other matters are not covered by those Rules, as special provisions are made by or under any law for the time being in force or in any contract, in regard to the matters covered by such law or such contract. In other words, the CCA Rules would not apply to those public servants who are covered by special provisions or by any contract with regard to matters covered by such law or such contract. Therefore, when there are separate Rules, which are applicable to the employees of a statutory body or a Government Company or a subsidiary of a Government company, the CCA Rules do not apply, just as in the instant cases, there are separate Rules in the form of C&R Rules applicable to the employees of the KRIDL.</b></p><p><b>30. Thus, on a conjoint reading of Rule 14-A with Rules 2(d) and 3 of the CCA Rules, it is evident that the CCA Rules are not applicable to the petitioners in the instant cases. Although, the employees of such a statutory body or a Corporation or a Government company are “public servants” and therefore, the provisions of KL Act applies to them, they are not “Government servants” </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">within the meaning of Rule 2(d) read with Rule 14-A of the CCA Rules. Thus, even though under the provisions of KL Act and the KL Rules, the competent authority for employees of such a statutory body or a Corporation or a Government Company (who are in any case public servants within the meaning of Section 2(12) of the KL Act) is the Government of Karnataka, but, such employees are “not Government servants” within the meaning of Rules 2(d) and 3 of the CCA Rules. Hence, on receipt of a report under Section 12(2) of the KL Act by the competent authority, namely, the Government of Karnataka, vis-à-vis the employees of such statutory bodies or Corporation or Government Companies, such as KRIDL in the instant case, it has to be sent to the Disciplinary Authority under the C&R Rules of KRIDL for the purpose of taking a decision with regard to the conduct of inquiry and not directly entrust the inquiry to the Lokayukta under Rule 14-A of the CCA Rules. In other words, Rule 14-A of the CCA Rules applies only to “Government servants” as defined under Rule 2(d) of the CCA Rules and as excepted under Rule 3 thereof. The object of submitting the Report under Section 12(2) of the KL Act to the State Government (competent authority) is to appraise the State Government about the enquiry made against a “public servant” by the Lokayukta/Upa-lokayukta, as the case may be.</b></p><p><b>31. Therefore, we find considerable force in the arguments of the learned counsel for the petitioners to the effect that Rule 14-A of the CCA Rules does not apply to the employees of the KRIDL such as the petitioners herein. Even though they may be “public servants” within the meaning of the KL Act, they are not “Government Servants” within the meaning of the said Act as well as CCA Rules. Though the Government of Karnataka is the competent authority under the KL Act, the petitioners, not being Government Servants under the provisions of the CCA Rules, the entrustment of the inquiry under Rule 14-A of the CCA Rules to the Lokayukta is without power and jurisdiction. On that short ground alone, orders passed by the State Government entrusting the inquiry to the Lokayukta are liable to be quashed.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ORDER: The State Government is directed to submit the reports under Section 12(2) of the KL Act to the Managing Director, KRIDL, forthwith. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">On receipt of the aforesaid reports, the Managing<span style=\"white-space:pre\">	</span>Director,<span style=\"white-space:pre\">	</span>KRIDL/Disciplinary Authority is at liberty to appoint the Inquiry Officer for conducting the inquiry against the petitioners herein, in accordance with law;</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'afb18a515d6264a4b551180e56547b84.jpg', '0d52db059ae5a2140a51efbfac1a6e43.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-23', 1, '', '', '2021-07-28 02:22:47', '2021-07-28 02:24:13');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(926, 'OJSpKbBliSXbsjgLthOJiIZa9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Protection of Women from Domestic Violence Act, 2005. Order passed under Section 12 can be enforced in the same manner as laid down under Section 125, Criminal Procedure Code. Karnataka High Court. ', '<p><b>Renuka vs Yalaguresh Shivanappa Chandragiri&nbsp;</b></p><p><b>Writ Petition 102448 of 2021 decided on 14 July 2021.&nbsp;</b></p><p><b>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/397445/1/WP102448-21-14-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/397445/1/WP102448-21-14-07-2021.pdf</a></b></p><p><b>The petitioner has filed this writ petition under Article&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">226 of Constitution of India seeking enforcement of order dated 28.02.2020 passed by the learned Principal, JMFC, Honnavar, in DV No.3/2013, under Section 12 of the DV Act&nbsp; in part.</b></p><p><b>4. The Protection of Women from Domestic&nbsp; Violence Act, 2005 , has been enacted with an object to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.</b></p><p><b>6. Section 12 of&nbsp; the&nbsp; Protection of Women from Domestic Violence Act, 2005&nbsp; speaks of an application to be filed before a Magistrate by an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person seeking one or more reliefs under the Act.</b></p><p><b>9. Section 20 of the Act speaks of monetary relief being granted to the aggrieved person by the Magistrate in directing the Respondent to pay monthly relief to meet the expenses occurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of Domestic Violence.&nbsp;</b></p><p><b>The combine reading of Section 12 and 20 of the DV Act read with Rule 6(5) of Rules, it is very clear that the order passed under Section 12 of the Act can be enforced&nbsp; in the same manner as laid down under Section 125 of Cr.P.C.&nbsp;</b></p><p><b>It is very clear from the above provisions that for enforcement of order passed under Section 12 of the DV&nbsp; Act, the parties have to file an application before the jurisdictional Magistrate and the Magistrate may, for every breach of the order, issue a warrant&nbsp; for&nbsp; levying the amount due in the manner provided for levying fines and may sentence such person.</b></p><p><b>In view of the above, the writ petition is disposed of reserving liberty to the petitioner to file a necessary application before the jurisdictional Magistrate as per the provisions of the DV Act read with the Cr.P.C.</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'e2b4c9e38978fa8326169717c01c6b64.jpeg', '2d6926f74847aee79f20a99b463b4021.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-14', 1, '', '', '2021-07-29 01:37:58', '2021-07-29 01:37:58'),
(927, 'rZIRktRtKMcwkWdATUKKCH3lW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sale of property by registered power of attorney holder is binding on principal-owner unless GPA is properly revoked or cancelled. Agreement holder from owner gets no right unless GPA and sale are declared bad. Karnataka High Court. ', '<p><b>P. Mamatha vs P. Ramasubbamma&nbsp;</b></p><p><b>Regular First Appeal 100200 of 2015 decided 20 July 2021.</b></p><p><b>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/397540/1/RFA100200-15-20-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/397540/1/RFA100200-15-20-07-2021.pdf</a></b></p><p><b>This Regular First Appeal is filed under Section 96 of CPC assailing the judgment and decree passed by the I Additional Senior Civil Judge, Ballari in O.S.No.103/2010.</b></p><p><b>3. The suit was filed for specific performance of the contract, viz. agreement of sale dated 12.04.2005.&nbsp;</b></p><p><b>17. This court finds that this case presents a peculiar set of facts inasmuch as, subsequent sale transactions are made at the hands of defendant No.2 who is the Power of Attorney holder of defendant No.1. The Power of Attorney is a registered document, empowering the agent to take care of the property, power to alienate and to render accounts. The Power of Attorney was executed on 28.01.1997 and registered in the office of the Sub-Registrar, Ballari, on 28.01.1997. It is the contention of the plaintiff that she entered into an agreement with defendant No.1 on 12.04.2005, agreeing to purchase the property&nbsp;</b></p><p><b>20. The contention of the learned counsel for defendant No.1 that in terms of Section 207 of the Indian Contract Act, the deliverance of the original of the Power of Attorney to the plaintiff or defendant No.1 would imply revocation of the power granted by defendant No.1 in favour of defendant No.2, cannot be countenanced. Generally, a registered instrument can be cancelled or revoked only by a deed of revocation or cancellation duly executed and registered. This submission could have been considered if defendant No.2 had joined the execution of the agreement of sale by defendant No.1 in favour of the plaintiff. That not being so, the argument of the learned counsel is required to be rejected.</b></p><p><b>19. On the other hand, the original Power of Attorney has been produced by the plaintiff and the same is marked on behalf of the plaintiff as Ex.P8. Though it is stated on behalf of defendant Nos.2 to 4 in the deposition that original Power of Attorney was torn after the execution of the sale deeds in favour of defendant Nos.3 and 4, the said statement has been proved wrong since the original of the General Power of Attorney has been produced by the plaintiff before the court.</b></p><p><b>20. The contention of the learned counsel for defendant No.1 that in terms of Section 207 of the Indian Contract Act, the deliverance of the original of the Power of Attorney to the plaintiff or defendant No.1 would imply revocation of the power granted by defendant No.1 in favour of defendant No.2, cannot be countenanced. Generally, a registered instrument can be cancelled or revoked only by a deed of revocation or cancellation duly executed and registered. This submission could have been considered if defendant No.2 had joined the execution of the agreement of sale by defendant No.1 in favour of the plaintiff. That not being so, the argument of the learned counsel is required to be rejected.</b></p><p><b>26. Moreover, as noticed earlier, the peculiar facts and circumstances obtained in this suit is that the allegation of the plaintiff is not against the vendor (defendant No.1) and on the other hand, the allegation is against defendant No.2, the Power of Attorney holder who has executed sale deeds in favour of defendant Nos.3 and 4. Going by the provision of Section 34 of the Specific Relief Act, it was for defendant No.1 to have initiated proceedings by filing a suit and seeking appropriate relief, whether it is a declaration that the sale deeds are void or seeking cancellation of the sale deeds. Defendant No.1 has not thought it fit to file a counter claim in the suit filed by the plaintiff, if it was so permitted instead of filing a separate suit. The proviso to Section 34 makes it very clear that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. No doubt, it was open for the plaintiff to seek a mere declaration in terms of Section 34 of the Specific Relief Act, and justify restricting his prayer only for seeking a declaration and not seeking cancellation of the sale deeds. But, as noticed earlier, there was no prayer in the instant suit seeking a declaration that sale deeds dated 03.05.2010 are void or they are not binding since they are nominal sale deeds etc. Therefore, as held in the case of Bachhaj Nahar(supra), when there was no prayer seeking declaratory relief and when there was no issue framed in that regard, no opportunity was available to defendant Nos.2 to 4 to show that the relief proposed by the court could not be granted. Therefore, when there is no prayer for a particular relief and no pleadings to support such a relief, and that the defendants had no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice.</b></p><p><b>30.<span style=\"white-space: pre;\">	</span>Accordingly, we proceed to allow the appeal and set aside the impugned judgment and decree dated 01.12.2014 passed by the First Additional Senior Civil Judge, Ballari in O.S.No.103/2010. Consequently, the suit filed by the plaintiff stands dismissed.</b><br></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'b475ab4ee1079a00c94bf7a485110aec.jpeg', '84882247ecf9bd06ca9c4fc22eb31825.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-20', 1, '', '', '2021-07-29 03:55:15', '2021-07-29 03:55:15'),
(928, 'p8zO0ZGW7XksPYJpkgHr06w5m', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Maintenance and Welfare of Parents and Senior Citizens Act, 2002. Right of appeal under Section 16 (1) is conferred on both sides and not confined only to senior citizen and parents. Karnataka High Court. ', '<p><b>M.Sunitha vs M. Shashikala Mugaduru and another.&nbsp;</b></p><p><b>Writ Petition 147056 of 2020 decided on 20 July 2021.</b></p><p><b>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/397451/1/WP147056-20-20-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/397451/1/WP147056-20-20-07-2021.pdf</a></b></p><p><b>In this writ petition the petitioner has assailed the order dated 02.03.2020 passed by the Assistant Commissioner, Hosapete, whereby he has set aside the gift deed dated 19.04.2017 executed in favour of the petitioner under Section 7(2) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2002&nbsp;</b></p><p><b>6. The point for consideration in this case is that, whether under Section 16(1) of the said Act, right of appeal is conferred on both side or only on a&nbsp; senior citizen or a parent?</b></p><p><b>9. By plain reading of section 16 of the Act, it provides right of appeal only to senior citizen or a parent against the order passed by the Tribunal. If combine reading of the provisions of Section 15 and 16, under Section 15 no where mentions appeal against the order&nbsp; of the Tribunal be confined to a senior citizen or a parent. The right to file an appeal is not excluded specifically by the provisions of section 16(1) of the said Act.&nbsp; Suppose if the right of appeal confined only to senior citizen or parents, if, the order passed by the Tribunal is aggrieved by both the parties, one preferring appeal and the other taking recourse to Article 227 of the&nbsp; Constitution&nbsp; of India.</b></p><p><b>12. In view of the above discussion, the only interpretation can be the right of appeal under Section 16&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(1) of the said Act is conferred on both side. It is case of an accidental omission and not of conscious exclusion. Therefore, the impugned order passed under Section 7 of&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Act is an appeal under Section 16 of the Act.&nbsp; Since the petitioner has an alternative remedy of appeal under Section 16 of the Act, the above writ petition is disposed of reserving liberty to the petitioner to file an appeal before the appellate authority under Section 16 of the&nbsp; Act. If such an appeal is filed within four weeks from today, the interim order granted by this Court will be continued till the disposal of the appeal before the appellate&nbsp; authority.&nbsp; The Appellate Authority is directed&nbsp; to dispose of the appeal not late than three months from the date of receipt of certified copy of t his order. The Revenue Secretary, Government of Karnataka is directed to communicate this order to all the&nbsp; Maintenance Tribunals and Appellate Tribunals.</b></p><p><b>Accordingly, writ petition is disposed of.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '433af5891e857e184bbfeed06bee6bfa.jpeg', '99efdef6d2f64ee1177688610ba06d32.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-20', 1, '', '', '2021-07-29 04:23:58', '2021-07-29 04:23:58'),
(929, 'Gz7AnjJS5t13OOVfNSQClRgSy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Karnataka Court  Fees  and  Suits  Valuation Act, 1958. Refund of court fee can NOT be granted in a suit which has been simply withdrawn. Karnataka High Court. ', '<p><b>L.Dayanand Reddy and another vs The State of Karnataka and another. </b></p><p><b>Civil Revision Petition 113 of 2021 decided on 30 June 2021</b></p><p><b>Judgment Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/396939/1/CRP113-21-30-06-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/396939/1/CRP113-21-30-06-2021.pdf</a></b></p><p><b>The petitioners in this petition call in question an order passed by the Trial Court in OS No.960/2019 rejecting the application filed by the petitioners seeking refund of Court fee of Rs.2,63,000/- which was paid while instituting the suit in OS No.960/2019.</b></p><p><b>2....The 2nd respondent-defendant instituted a suit for specific performance before the Court of Principal Senior Civil Judge, Rural District, Bengaluru at  Bengaluru  in OS No.1680/2018. This suit ended in a compromise being recorded by the Court which ended in closure of  the suit. The petitioners claiming that fraud was played by the plaintiff therein on the Court while recording the compromise decree which was without their  consent, filed  another suit in  OS No.960/2019 seeking </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">annulment of a compromise decree that was arrived at in OS No.1680/2018.</b></p><p><b>3.....An application under Order VII Rule 11 of CPC was filed by the plaintiff in OS NO.1680/2018 contending that under Order XXIII Rule 3(a) of CPC, an application ought to have been filed before the Court which had recorded the compromise and not a separate suit. It is then the petitioners withdrew the suit and filed an application before the very same Court which had recorded the compromise, seeking recalling of the said compromise decree.</b></p><p><b>4. After such withdrawal, the petitioners filed an application before the trial Court where they had instituted a suit in OS No.960/2019 seeking refund of Court fee, rejection of that application is  what  has  driven the petitioners to this Court in this Civil Revision Petition. </b></p><p><b>9....In terms of Section 66 of the Act, the plaintiff is entitled to refund of Court fee where suit ends in settlement or dismissed out of Court before any evidence has been recorded on merits of the claim or any appeal being disposed of before the commencement of the hearing of such appeal.</b></p><p><b>12. In terms of Section 67 of the Act, refund of the fee paid by mistake or inadvertence can be only of fees being paid in excess in any proceeding or an appeal and cannot cover the institution of suits. The petitioners with eyes wide open consciously file a suit for injunction in O.S.No.960/2019 seeking to annul the compromise decree in O.S.No.1680/2018 in which they were the defendants. The trial Court considering O.S.No.960/2019, entertains the same and grants an injunction against the defendant therein completely </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contrary to the decree of compromise entered into in O.S.No.1680/2018.</b></p><p><b>14. It is not a case where the petitioners are seeking refund of excess Court fee  paid.  The suit having not been decreed in terms of Section 66 of the  Act, no refund of Court fee can be granted in a suit which has been withdrawn, which is not a circumstance that Section 66 mandates.</b></p><p><b>16. The case at hand is a case where refund of Court fee is sought after institution of the suit and the suit is subsequently withdrawn.</b></p><p><b>For the aforesaid reasons, I find no warrant to interfere with the order passed by the trial Court, rejecting the application for refund of Court  fee.  The Civil Revision Petition lacks merit and is dismissed.</b></p>', 'd49f2df3725f1024d0e56bc4d3eef937.jpg', '526ca88b3e126030c89834e3b4a1af48.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-06-30', 1, '', '', '2021-07-29 04:47:28', '2021-07-29 16:32:53'),
(930, 'WsDOxCX83Z6MG0gTS42Yz19LK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitral Tribunal is not a court of law and its orders are not judicial orders. Arbitrator\'s jurisdiction is confined  to four corners of the agreement. Supreme Court reiterates. Also see; discussion on \'public policy of India\'  ', '<p><b>PSA SICAL Terminals Pvt Ltd vs The Board of Trustees of V.O. Chidambranar Port Trust Tuticorin and others&nbsp;</b></p><p><b>Civil Appeal 36993-</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3700&nbsp;of 2018 decided on 28 July 2021.&nbsp;</b></p><p><b>Justice R.F.&nbsp;Nariman and Justice B.R.&nbsp;Gavai&nbsp;</b></p><p><b>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2017/38654/38654_2017_32_1501_28824_Judgement_28-Jul-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2017/38654/38654_2017_32_1501_28824_Judgement_28-Jul-2021.pdf</a></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">42. It will thus appear to be a more than settled legal position, that&nbsp; &nbsp;in&nbsp; &nbsp;an&nbsp; &nbsp;application&nbsp; &nbsp;under&nbsp; &nbsp;Section&nbsp; &nbsp;34,&nbsp; &nbsp;the&nbsp; &nbsp;court&nbsp; &nbsp;is&nbsp; &nbsp;not expected&nbsp; &nbsp;to&nbsp; &nbsp;act&nbsp; &nbsp;as&nbsp; &nbsp;an appellate&nbsp; &nbsp;court&nbsp; &nbsp;and&nbsp; &nbsp;reappreciate&nbsp; &nbsp;the evidence.&nbsp; The scope of interference would be limited to grounds provided&nbsp; &nbsp;under&nbsp; &nbsp;Section&nbsp; &nbsp;34&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; Arbitration&nbsp; &nbsp;Act.&nbsp; The interference&nbsp; &nbsp;would&nbsp; &nbsp;be&nbsp; &nbsp;so&nbsp; &nbsp;warranted&nbsp; &nbsp;when&nbsp; &nbsp;the&nbsp; &nbsp;award&nbsp; &nbsp;is&nbsp; &nbsp;in violation of “public policy of India”, which has been held to mean&nbsp; &nbsp;“the fundamental&nbsp; &nbsp;policy&nbsp; &nbsp;of&nbsp; &nbsp;Indian&nbsp; &nbsp;law”.&nbsp; A judicial intervention&nbsp; &nbsp;on&nbsp; &nbsp;account&nbsp; &nbsp;of&nbsp; &nbsp;interfering&nbsp; &nbsp;on&nbsp; &nbsp;the&nbsp; &nbsp;merits&nbsp; &nbsp;of&nbsp; &nbsp;the award would not be permissible. However, the principles of natural justice as contained in Section 18 and 34(2)(a)(iii) of the Arbitration Act would continue to be the grounds of challenge of an award. The ground for interference on the basis that the award&nbsp; &nbsp;is&nbsp; &nbsp;in&nbsp; &nbsp;conflict&nbsp; &nbsp;with&nbsp; &nbsp;justice&nbsp; &nbsp;or&nbsp; &nbsp;morality&nbsp; &nbsp;is&nbsp; &nbsp;now&nbsp; &nbsp;to&nbsp; &nbsp;be understood&nbsp; &nbsp;as&nbsp; &nbsp;a&nbsp; &nbsp;conflict&nbsp; with&nbsp; &nbsp;the&nbsp; “most&nbsp; &nbsp;basic&nbsp; &nbsp;notions&nbsp; &nbsp;of morality or justice”.&nbsp; It is only such arbitral awards that shock the conscience of the court, that can be set aside on the said ground. An award would be set aside on the ground of patent illegality appearing on the face of the award and as such, which goes to the roots of the matter.&nbsp; However, an illegality with regard to a mere erroneous application of law would not be a ground for interference.&nbsp; &nbsp;Equally, reappreciation of evidence would not&nbsp; be permissible on&nbsp; the ground of patent illegality appearing on the face of the award.&nbsp; &nbsp;</b></p><p><b>43. A&nbsp; &nbsp;decision&nbsp; &nbsp;which&nbsp; &nbsp;is&nbsp; &nbsp;perverse,&nbsp; &nbsp;though&nbsp; &nbsp;would&nbsp; &nbsp;not&nbsp; &nbsp;be&nbsp; &nbsp;a ground&nbsp; &nbsp;for&nbsp; &nbsp;challenge&nbsp; &nbsp;under&nbsp; &nbsp;“public&nbsp; &nbsp;policy&nbsp; &nbsp;of&nbsp; &nbsp;India”, would certainly amount to a patent illegality appearing on the face of the award.&nbsp; However, a finding based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside on the ground of patent illegality.&nbsp;</b></p><p><b>44. To&nbsp; understand&nbsp; the&nbsp; test of perversity,&nbsp; it&nbsp; will&nbsp; also be appropriate to refer to paragraph 31 and 32 from the judgment of this Court in Associate Builders (supra), which read thus:</b></p><p><b>“31. The third juristic principle is that a decision which is perverse or so irrational that&nbsp; &nbsp;no&nbsp; &nbsp;reasonable&nbsp; &nbsp;person&nbsp; &nbsp;would&nbsp; &nbsp;have arrived&nbsp; &nbsp;at&nbsp; &nbsp;the&nbsp; &nbsp;same&nbsp; &nbsp;is&nbsp; &nbsp;important&nbsp; &nbsp;and requires some degree of explanation. It is settled law that where:</b></p><p><b>(i) a finding is based on no evidence, or</b></p><p><b>(ii) an Arbitral Tribunal takes into account something irrelevant to the decision which it arrives at; or (iii) ignores vital evidence in arriving at its decision, such&nbsp; &nbsp;decision&nbsp; &nbsp;would&nbsp; &nbsp;necessarily&nbsp; &nbsp;be perverse.</b></p><p><b>32. A&nbsp; &nbsp;good&nbsp; &nbsp;working&nbsp; &nbsp;test&nbsp; &nbsp;of&nbsp; &nbsp;perversity&nbsp; &nbsp;is contained in two judgments. In Excise and Taxation&nbsp; &nbsp;Officer ­cum­ Assessing Authority v. Gopi Nath &amp; Sons [1992 Supp (2) SCC 312], it was held: (SCC p. 317, para 7) “7. … It is, no doubt, true that if a finding of&nbsp; &nbsp;fact&nbsp; &nbsp;is&nbsp; &nbsp;arrived&nbsp; &nbsp;at&nbsp; &nbsp;by&nbsp; &nbsp;ignoring&nbsp; &nbsp;or excluding&nbsp; &nbsp;relevant&nbsp; &nbsp;material&nbsp; &nbsp;or&nbsp; &nbsp;by&nbsp; &nbsp;taking into consideration irrelevant material or if the finding so outrageously defies logic as to&nbsp; &nbsp;suffer&nbsp; &nbsp;from&nbsp; &nbsp;the&nbsp; &nbsp;vice&nbsp; &nbsp;of&nbsp; &nbsp;irrationality incurring&nbsp; &nbsp;the&nbsp; &nbsp;blame&nbsp; &nbsp;of&nbsp; &nbsp;being&nbsp; &nbsp;perverse, then,&nbsp; &nbsp;the&nbsp; &nbsp;finding&nbsp; &nbsp;is&nbsp; &nbsp;rendered&nbsp; &nbsp;infirm&nbsp; &nbsp;in law.” In Kuldeep&nbsp; &nbsp;Singh v. Commr.&nbsp; &nbsp;of Police [(1999) 2 SCC 10: 1999 SCC (L&amp;S) 429], it was held: (SCC p. 14, para 10) “10. A broad distinction has, therefore, to be&nbsp; &nbsp;maintained&nbsp; &nbsp;between&nbsp; &nbsp;the&nbsp; &nbsp;decisions which are perverse and those which are not.&nbsp; &nbsp;If&nbsp; a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied&nbsp; &nbsp;upon,&nbsp; &nbsp;howsoever&nbsp; &nbsp;compendious&nbsp; &nbsp;it may&nbsp; &nbsp;be,&nbsp; &nbsp;the&nbsp; &nbsp;conclusions&nbsp; &nbsp;would&nbsp; &nbsp;not&nbsp; &nbsp;be treated as perverse and the findings would not be interfered with.”&nbsp;</b></p><p><b>85. It&nbsp; &nbsp;has&nbsp; &nbsp;been&nbsp; &nbsp;held&nbsp; &nbsp;that&nbsp; &nbsp;the&nbsp; &nbsp;role&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Arbitrator&nbsp; &nbsp;is&nbsp; &nbsp;to arbitrate within the terms of the contract.&nbsp; &nbsp;He has no power apart from what the parties have given him under the contract. If he has travelled beyond the contract, he would be acting without jurisdiction.&nbsp;&nbsp;</b></p><p><b>86. It&nbsp; &nbsp;will&nbsp; &nbsp;also&nbsp; &nbsp;be&nbsp; &nbsp;apposite&nbsp; &nbsp;to&nbsp; &nbsp;refer&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;following observations of this Court in the case of&nbsp; Md.&nbsp; Army&nbsp; Welfare Housing Organization v. Sumangal Services (P) Ltd. (2004) 9 SCC 619</b></p><p><b>“43. An Arbitral Tribunal is not a court of law. Its orders are not judicial orders. Its functions&nbsp; &nbsp;are&nbsp; &nbsp;not&nbsp; &nbsp;judicial&nbsp; &nbsp;functions.&nbsp; &nbsp;It cannot&nbsp; &nbsp;exercise&nbsp; &nbsp;its&nbsp; &nbsp;power&nbsp; &nbsp;ex debito justitiae. The jurisdiction of the arbitrator being confined to the four corners of the agreement, he can only pass such an order which&nbsp; &nbsp;may&nbsp; &nbsp;be&nbsp; &nbsp;the&nbsp; &nbsp;subject­ matter&nbsp; &nbsp;of reference.”</b></p><p><b>87. It has been held that an Arbitral Tribunal is not a Court of law.&nbsp; &nbsp;Its orders are not judicial orders.&nbsp; &nbsp;Its functions are not judicial&nbsp; functions.&nbsp; It&nbsp; &nbsp;cannot&nbsp; &nbsp;exercise&nbsp; &nbsp;its&nbsp; &nbsp;powers&nbsp; ex&nbsp; &nbsp;debito justitiae. It has been held that the jurisdiction of the arbitrator being confined to the four corners of the agreement, he can only pass&nbsp; &nbsp;such&nbsp; &nbsp;an&nbsp; &nbsp;order&nbsp; &nbsp;which&nbsp; &nbsp;may&nbsp; &nbsp;be&nbsp; &nbsp;the&nbsp; &nbsp;subject ­matter&nbsp; &nbsp;of reference.&nbsp;&nbsp;</b></p><div><br></div>', 'c71d6a80eb67764ba3067bb322b1f147.jpeg', '9d011ec101a3b2d9931b083256be9c68.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-28', 1, '', '', '2021-07-29 22:48:50', '2021-07-29 22:48:50'),
(931, 'JKrWNHEEhMqecS3MyxKVJpWAa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'Total non application of mind\'. Karnataka High Court quashes consent for establishment issued by Karnataka State Pollution Control Board for Karwar Port Expansion Project. Orders fresh exercise. ', '<p><b>Baithkol Bandharu Nirashrithara Yantrikrut Doni Meenugarara Sahahakara Sangha Niyamitha vs The Chief Executive Officer Karnataka maritime Board and others.&nbsp;</b></p><p><b>Writ Petition 1332 of 2020 decided on 29 July 2021.</b></p><p><b>Chief Justice Abhay S Oka and Justice Suraj Govindaraj</b></p><p><b>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/397982/1/WP1332-20-29-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/397982/1/WP1332-20-29-07-2021.pdf</a></b></p><p><b>These writ petitions under Article 226 of the Constitution of India have been filed for challenging the decision to expand the existing Karwar Port at Baithkol village in Karwar taluk, Uttara Kannada district. The project of expansion of existing Karwar Port has been undertaken by the State Government through the Director of Ports and Inland Water Transport.&nbsp;</b></p><p><b>36. In view of the submissions made as above, the following main issues are required to be decided in these writ petitions:</b></p><p><b>(i) Whether in view of the availability of efficacious remedy under the provisions of sub-section (1) of Section-14 and clause (h) of Section-16 of the NGT Act, 2010, the present petitions under Article&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">226 of the Constitution of India should not be entertained?</b></p><p><b>(ii) Whether the petitioners have locus to maintain the petitions?</b></p><p><b>(iii) Whether the consent for establishment granted by Karnataka State Pollution Control Board (KSPCB) is bad in law?</b></p><p><b>(iv) (a) Whether the proposed project of 2nd stage expansion of Karwar Port is falling under category- A project, as defined in the schedule to the Environment Impact Assessment (EIA) Notification dated 14th September, 2006 and whether State Level Environment Impact Assessment Authority- Karnataka (for short, ‘SEIAA’) had jurisdiction to grant the Environmental Clearance for the project?</b></p><p><b>(iv) (b) Whether the proposed project of 2nd stage Development&nbsp; &nbsp; &nbsp;exceeds&nbsp; &nbsp; &nbsp;the&nbsp; &nbsp; &nbsp; capacity&nbsp; &nbsp; &nbsp; of&nbsp; 5 Million MT/Annum?</b></p><p><b>(v) Whether the 2nd stage Development will violate any law relating to environment?</b></p><p><b>(vi) Whether the project will lead to violation of fundamental rights guaranteed to the citizens of Karwar under sub-clause (d) of clause (1) of Article 19 of the Constitution of India?</b></p><p><b>(vii)<span style=\"white-space:pre\">	</span>(a) Whether the proposed project will infringe the fundamental rights of the fishermen guaranteed under sub-clause (g) of clause (1) of Article 19 and Article 21 of the Constitution of India?</b></p><p><b>(vii) (b) Whether rights of the fishermen under Article 300A will be infringed?</b></p><p><b>56. Thus, it is clear that the Board purported to resolve that the consent granted with the approval of the Chairman on 1st July, 2020 was found to be proper. As noted earlier, a copy of the proceedings or an order of approval of the Chairman, granting approval is not placed on record. Moreover, what is important is that it is specifically mentioned that the consent for expansion granted on 1st July, 2020 was reiterated and confirmed with “certain modified conditions”. Shockingly, there is no discussion in the minutes of the meeting held on 24th November, 2010 about what are the modified conditions to be imposed. Even the modified conditions do not form a part of the minutes. Neither any discussion was held on the nature of the modified conditions nor the modified conditions have been recorded therein. Moreover, the Board did not notice that a&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">proper inquiry as contemplated by the Rules framed under the Water Act and Air Act was not made by the Environmental Officer. Thus, this Court has no hesitation to hold that the entire decision making process, by which a decision was taken to reiterate and confirm the earlier consent dated 1st July, 2020 with “certain modified conditions” was completely vitiated due to non-application of mind and non consideration of the relevant factors. Moreover, the consent was reiterated subject to “certain modified conditions” without even considering what could be the modified conditions.</b></p><p><b>5. At this stage, it will be necessary to make a reference to the preamble of the Water Act. The relevant portion of the preamble reads thus:“An Act to provide for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for the establishment, with a view to carrying out the purposes aforesaid, of Boards for the prevention and control of water pollution, for conferring on and&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">assigning to such Boards powers and functions relating thereto and for matters connected therewith.</b></p><p><b>Whereas it is expedient to provide for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for the establishment, with a view to carrying out the purposes aforesaid of boards for the prevention and the control of water pollution and for conferring on and assigning to such Boards powers and functions relating thereto”.</b></p><p><b>There is a similar preamble to the Air Act as well. Thus, the very object of enacting the Water Act and the Air Act was prevention and control of Water and Air pollution respectively. The very purpose of establishment of the State Pollution Control Board was to achieve the object of prevention and control of Water and Air pollution. Thus, KSPCB is required to act as a watch dog against pollution of&nbsp; both Air and Water.&nbsp; But in facts of the present case, we are constrained to observe that KSPCB has acted in a very casual manner by ignoring the very object of the Water and the Air Act. KSPCB is supposed to be a body of experts. But, it has acted in such a manner&nbsp; that the very object of the setting up of the Board is frustrated. Apart from the shocking manner in which KSPCB dealt with the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">applications made by the Port Officer for grant of consent for establishment, the entire process is vitiated due to non- application of mind, non-consideration of the relevant factors and the illegality in the decision making process.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Therefore, we summarize our conclusions on the aspects of the illegality in the decision making process of KSPCB as hereunder:</b></p><p><b>(a) The consent for establishment was issued on 1st July, 2020 solely on the basis of the recommendations made by the Consent Committee;</b></p><p><b>(b) Though the consent issued on 1st July, 2020, records that it was issued with the approval of the Chairman of the Board, neither the proceedings before the Chairman nor an Order made by him is placed on record to show that after considering the relevant factors and after application of mind, the Chairman had approved the recommendation of the Consent Committee. When the Chairman exercised delegated power of the Board to grant consent, before granting consent, there has to be&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">an application of mind by him which is completely absent in this case;</b></p><p><b>(c) We have perused the inspection report of the environmental officer of Karwar Regional Office, who appears to have carried out inspection on 17th January, 2020. As noted earlier, no inquiry or investigation was made by the said Officer as contemplated by the Rules framed both under the Water Act and the Air Act. Without there being a proper inquiry as contemplated by the Rules, the application for grant of consent could not have been considered;</b></p><p><b>(d) Though there was no valid consent granted by the Board or by the Chairman in exercise of the delegated powers, the Board purported to review the consent under the non-existing power under sub-section (2) of Section 27 of the Water Act;</b></p><p><b>(e) In the meeting held on 24th November, 2020, though it was resolved to reiterate and confirm the consent with “certain modified conditions”, there was no decision taken on what could be the additional/modified conditions. As the decision&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was taken only to reiterate and confirm the consent subject to “certain modified conditions” and as the said conditions were not even discussed, the decision to reiterate and confirm the consent cannot be termed as legal and valid;</b></p><p><b>(f) Only after the aforesaid lacuna was pointed by this Court in paragraphs 2 and 3 of the order passed on 16th December, 2020 in W.P.No. 1332/2020, to overcome the same, the Board again convened its meeting on 6th January, 2021 and purportedly took a decision as regards what should be the modified conditions; and</b></p><p><b>(g) It is pertinent to note here that neither in the minutes of the earlier meeting dated 24th November, 2020 nor in the minutes of the subsequent meeting dated 6th January, 2021, the fact that proper inspection and inquiry was not conducted by the environmental officer in terms of the Rules is not at all noted.</b></p><p><b>79. The principle of sustainable development requires that development goals should be achieved while sustaining the ability of the nature to provide natural resources and eco- systems. Therefore, while achieving the goal of development,it is necessary for every statutory authority of the Government to ensure that while carrying out development work, natural resources and eco-systems are protected. In the present case, the Environmental Clearance has been granted subject to several conditions including the condition of obtaining consent for establishment/operate from KSPCB both under the Water Act and Air Act. The conditions incorporated in the Environmental Clearance dated 23rd January, 2019 are essential for protecting the natural resources and eco-systems. Therefore, it is the obligation of all the concerned to ensure that all the conditions specified in the Environmental&nbsp; Clearance and all other terms and conditions on which consent for establishment/operation, if any, granted are scrupulously implemented. Therefore, it is the statutory obligation on the part of the State Government to ensure that all the aforesaid terms and conditions are scrupulously followed and implemented. SEIAA and KSPCB being statutory authorities will have to keep a strict vigil in that behalf.</b></p><p><b>O R D E R</b></p><p><b>i) We hold that the consent for establishment bearing No.CTE-318752 dated 1st July, 2020, granted by the Karnataka State Pollution Control Board, its resolution dated 24th November, 2020 bearing No. Ka Ra Ma Ni Mam/231/ Ne Mam Sa/Ni. Ko/2020-21/3998 on item No. 231:27.1 and its another resolution dated 6th January, 202&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">bearing No. Ka Ra Ma Ni Mam/232/ Ne Mam Sa/Ni. Ko/2020-21/4433 (B) on item No. 232:01: (vide Annexure-AB, Annexure-AC and Annexure- AD respectively) are illegal and stand vitiated; </b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ii) We direct the Karnataka State Pollution Control Board to decide the applications made for grant of consent for establishment, in terms of what is stated in the memo of undertaking dated 15th June, 2021 and subject to what we have observed in paragraph No.62 above, as expeditiously as possible. Appropriate decision shall be taken on the applications preferably within a period of one month from the date on which this judgment is uploaded on the official website of this Court;</b></p><p><b>iii) The other grounds of challenge to the said 2nd stage Development of Karwar Port stand rejected;</b></p><p><b>iv) We direct the State of Karnataka and the Director of Ports and Inland Water, Karwar Port to ensure that all the terms and conditions of Environmental Clearance dated 23rd January, 2019 (Annexure-B)issued by the State Level Environment Impact Assessment Authority (SEIAA) are scrupulously followed and implemented. Needless to add that unless and until the consent for establishment is granted to the project by KSPCB, the work of the 2nd stage Development of Karwar Port cannot be commenced;</b></p><p><b>v)We direct that the State Government shall comply with condition No.32 incorporated in specific conditions in the Environmental Clearance of submitting a copy of Marine and Riparian Biodiversity Management Plan duly validated by the State Bio-Diversity Board before the commencement of work;</b></p><p><b>vi) Writ petition No. 1332 of 2020 is not entertained for the reasons set out in paragraph 41 above. Writ petition No. 2336 of 2020 is partly allowed on the above terms with no orders as to the costs;</b></p><p><b>vii) Interlocutory application (IA-I of 2020) and Interlocutory application (IA-3 of 2021) filed by the petitioner in W.P.No. 1332 of 2020 are rejected;</b></p><p><b>viii) The rest of the pending interlocutory applications shall stand disposed of;</b></p><p><b>ix) There will be no order as to costs.</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'b16fc4c5bfb83361f5b2942b98a4ff32.png', '41182aab38dc268b6d8850f6667f109f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-29', 1, '', '', '2021-07-30 01:37:37', '2021-07-30 01:37:37'),
(932, 'qPdYTDDBxylCRWqxBDQoefd13', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Section 321. Supreme Court explains and reiterates principles governing withdrawal of prosecution. ', '<p><b>The State of Kerala vs K. Ajith and others.&nbsp;</b></p><p><b>Criminal Appeal No 697 of 2021\r\ndecided on 28 July 2021.&nbsp;<br></b></p><p><b>Justice Dr Dhananjaya Y Chandrachud and Justice M R Shah&nbsp;</b></p><p><b>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2021/11510/11510_2021_35_1501_28812_Judgement_28-Jul-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/11510/11510_2021_35_1501_28812_Judgement_28-Jul-2021.pdf</a></b></p><p><b>12....The question before this Court is centred on the\r\nexercise of power by the Public Prosecutor under Section 321 and the exercise of&nbsp;jurisdiction by the Chief Judicial Magistrate.&nbsp;</b></p><p><b>14. The powers under Section 321 of the CrPC have been interpreted by this\r\nCourt on a number of occasions. In State of Bihar vs Ram Naresh Pandey &amp;\r\nAnr AIR 1957 SC 389, a three-judge Bench of this Court analysed Section 494 of the earlier\r\nCode of Criminal Procedure 1898 (similar to Section 321 of the CrPC). Justice B.\r\nJagannadhadas observed that in granting consent to withdraw a prosecution, the\r\ncourt exercises a judicial function. However, in doing so, the court need not\r\ndetermine the matter judicially. The court only needs to be satisfied that “the\r\nexecutive function of the Public Prosecutor has not been improperly exercised, or\r\nthat it is not an attempt to interfere with the normal course of justice for\r\nillegitimate reasons or purposes”. This Court also observed that the Magistrate’s\r\npower under Section 494 was to prevent abuse of power of the executive.</b></p><p><b>15. In M.N Sankarayaraynan Nair vs P.V Balakrishnan (1972) 1 SCC 318, this Court held\r\nthat the powers conferred on the Prosecutor under Section 494 of the Code of\r\nCriminal Procedure 1898 are to be exercised in “furtherance of the object of law”. ..Thus the fact that the withdrawal was initiated by the government was held not to\r\nvitiate the application, so long as the Public Prosecutor had independently applied his\r\nmind. <br></b></p><p><b>17 The locus classicus on the interpretation of the powers conferred by\r\nSection 321 of the CrPC is the decision of the Constitution Bench in\r\nSheonandan Paswan vs State of Bihar &amp;\r\nOrs&nbsp;11 (1987) 1 SCC 288.</b></p><p><b>19...The Court also held that while granting or denying consent to a withdrawal\r\npetition, the court is not to review the purported grounds warranting withdrawal\r\nthat the public prosecutor has provided, but must only make sure that it is for a\r\nlegitimate purpose, initiated without mala fides. &nbsp;<br></b></p><p><b>22 In offences involving the violation of public trust by executive or legislative\r\nauthorities, this Court has evaluated the gravity of the offence and the impact of\r\nthe withdrawal of prosecution on public life in Bairam Muralidhar vs State of\r\nAndhra Pradesh&nbsp;(2014) 10 SCC 380.&nbsp;<br></b></p><p><b>23 The principles which emerge from the decisions of this Court on the\r\nwithdrawal of a prosecution under Section 321 of the CrPC can now be\r\nformulated:\r\n</b></p><p><b>(i) Section 321 entrusts the decision to withdraw from a prosecution to the\r\npublic prosecutor but the consent of the court is required for a withdrawal\r\nof the prosecution;\r\n</b></p><p><b>(ii) The public prosecutor may withdraw from a prosecution not merely on the\r\nground of paucity of evidence but also to further the broad ends of public\r\njustice; </b></p><p><b>(iii) The public prosecutor must formulate an independent opinion before\r\nseeking the consent of the court to withdraw from the prosecution;\r\n</b></p><p><b>(iv) While the mere fact that the initiative has come from the government will\r\nnot vitiate an application for withdrawal, the court must make an effort to\r\nelicit the reasons for withdrawal so as to ensure that the public prosecutor\r\nwas satisfied that the withdrawal of the prosecution is necessary for good\r\nand relevant reasons;\r\n</b></p><p><b>(v) In deciding whether to grant its consent to a withdrawal, the court\r\nexercises a judicial function but it has been described to be supervisory in\r\nnature. Before deciding whether to grant its consent the court must be\r\nsatisfied that:\r\n</b></p><p><b>(a) The function of the public prosecutor has not been improperly\r\nexercised or that it is not an attempt to interfere with the normal course\r\nof justice for illegitimate reasons or purposes;\r\n</b></p><p><b>(b) The application has been made in good faith, in the interest of public\r\npolicy and justice, and not to thwart or stifle the process of law;\r\n</b></p><p><b>(c) The application does not suffer from such improprieties or illegalities as\r\nwould cause manifest injustice if consent were to be given;\r\n(d) The grant of consent sub-serves the administration of justice; and\r\n</b></p><p><b>(e) The permission has not been sought with an ulterior purpose\r\nunconnected with the vindication of the law which the public prosecutor\r\nis duty bound to maintain;\r\n</b></p><p><b>(vi) While determining whether the withdrawal of the prosecution subserves the\r\nadministration of justice, the court would be justified in scrutinizing the nature and gravity of the offence and its impact upon public life especially\r\nwhere matters involving public funds and the discharge of a public trust are\r\nimplicated; and\r\n</b></p><p><b>(vii) In a situation where both the trial judge and the revisional court have\r\nconcurred in granting or refusing consent, this Court while exercising its\r\njurisdiction under Article 136 of the Constitution would exercise caution\r\nbefore disturbing concurrent findings. The Court may in exercise of the\r\nwell-settled principles attached to the exercise of this jurisdiction, interfere\r\nin a case where there has been a failure of the trial judge or of the High\r\nCourt to apply the correct principles in deciding whether to grant or\r\nwithhold consent.&nbsp;<br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'b8ff02643da7148dc73986587688e86a.jpg', 'd511466dda7187000a2b5d2a5382cf9c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-28', 1, '', '', '2021-07-30 02:11:24', '2021-07-30 02:16:31');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(933, 'ADBVHiKW19tGBw42UJ34Rx4hx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constitution of India. Privileges and immunities of Members of Parliament and MLAs do NOT extend to criminal acts . No elected member can claim privilege or an immunity to stand above the sanctions of the criminal law. Supreme Court.', '<p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b>The State of Kerala vs K.Ajith and others. </b></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b>Criminal Appeal No 697 of 2021 decided on 28 July 2021.</b></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b>Justice Dr. Dhananjaya Y. Chandrachud and Justice M.R. Shah</b></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/11510/11510_2021_35_1501_28812_Judgement_28-Jul-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/11510/11510_2021_35_1501_28812_Judgement_28-Jul-2021.pdf </a><font color=\"#222222\" face=\"mainFontOP\"><br></font></b></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b>24. Articles 105 and 194 of the Constitution provide in similar terms for the\r\nprivileges and immunities of Members of Parliament and MLAs respectively. </b></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b>25 Clause 1 of Article 194 recognizes the freedom of speech in the legislature\r\nof every State. However, the freedom recognized by clause 1 is subject to the\r\nprovisions of the Constitution and standing orders regulating the procedure of the\r\nState Legislatures. Clause 2 enunciates a rule of immunity which protects a\r\nmember of the legislature from a proceeding in any court “in respect of anything\r\nsaid or a vote given” in the legislature or in any committee of the legislature.\r\nMoreover it provides a shield against any liability for a publication of a report,\r\npaper, votes or proceedings by or under the authority of the House. Further,\r\nclause 3 of Article 194 provides that in other respects the privileges and\r\nimmunities are such as defined by law. Until defined by law – there being\r\npresently no law on the subject – the privileges and immunities of the members of\r\nthe House and its committees shall be such as were in existence before Section\r\n26 of the Forty-Fourth Amendment to the Constitution came into force. According\r\nto clause 4, the privileges and immunities also attach to those who have a right to\r\nspeak in and participate in the proceedings of the House or its committees.</b></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b>26 At the time of the adoption of the Constitution, clause 3 of Article 194\r\nprovided that the privileges, immunities and powers of a House of the Legislature\r\nof a State (and of its members and committees) shall be such as may from time\r\nto time be defined by the legislature by law, and until so defined, shall be those of...the House of Commons of the Parliament of the United Kingdom at the\r\ncommencement of the Constitution...</b></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b>28 The privileges of the British House of Commons at the commencement of\r\nthe Constitution as embodied in clause (3) of Article 194 as it then stood has significant consequences. First, the nature and extent of the privileges enjoyed by\r\nthe members was to be decided by the courts and not by the legislature, following\r\nthe English principle that the courts have the power to determine whether the\r\nHouse possessed a particular privilege. Second, the courts had the power to\r\ndetermine whether any of the privileges of the British House of Commons that\r\nexisted at the date of the commencement of the Constitution, had become\r\ninconsistent with the provisions of the Constitution. \r\n <br></b></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b>29 As mentioned above, since the Parliament is yet to enact a law on the\r\nsubject of parliamentary privileges, according to Article 194(3) of the Constitution,\r\nthe MLAs shall possess privileges that the members of the House of Commons\r\npossessed at the time of enactment of the Constitution.</b></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b>33 The immunity available to the MPs under Article 105(2) of the Constitution\r\nfrom liability to “any proceedings in any court in respect of anything said or any\r\nvote given by him in Parliament” (similar to Article 194(2) of the Constitution in\r\ncase of MLAs) became the subject matter of the decision of the Constitution\r\nBench in P. V. Narasimha Rao (supra). The judgment of the Constitution Bench,\r\nwhich consisted of Justice SC Agrawal, Justice GN Ray, Justice AS Anand,\r\nJustice SP Bharucha and Justice S Rajendra Babu, comprised of three opinions.\r\nThe first opinion was by Justice SC Agrawal (on behalf of himself and Dr Justice\r\nAS Anand), the second by Justice SP Bharucha (on behalf of himself and Justice\r\nS Rajendra Babu) and the third, by Justice GN Ray.</b></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b>41. The next judgment which is of significance in the evolution of this body of\r\nlaw is the decision of the Constitution Bench in Raja Ram Pal vs Hon’ble\r\nSpeaker, Lok Sabha (2007) 3 SCC 184 “62. In view of the above clear enunciation of law by\r\nConstitution Benches of this Court in case after case, there\r\nought not be any doubt left that whenever Parliament, or for\r\nthat matter any State Legislature, claims any power or privilege\r\nin terms of the provisions contained in Article 105(3), or Article\r\n194(3), as the case may be, it is the Court which has the\r\nauthority and the jurisdiction to examine, on grievance\r\nbeing brought before it, to find out if the particular power\r\nor privilege that has been claimed or asserted by the\r\nlegislature is one that was contemplated by the said\r\nconstitutional provisions or, to put it simply, if it was such\r\na power or privilege as can be said to have been vested in\r\nthe House of Commons of the Parliament of the United\r\nKingdom as on the date of commencement of the\r\nConstitution of India so as to become available to the\r\nIndian Legislatures.” </b></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b>42 The principle which emphatically emerges from this judgment is that\r\nwhenever a claim of privilege or immunity is raised in the context of Article 105(3)\r\nor Article 194 (3), the Court is entrusted with the authority and the jurisdiction to\r\ndetermine whether the claim is sustainable on the anvil of the constitutional\r\nprovision. The Constitution Bench held that neither Parliament nor the State\r\nlegislatures in India can assert the power of “self-composition or in other words\r\nthe power to regulate their own constitution in the manner claimed by the House\r\nof Commons or in the UK”. The decision therefore emphasizes the doctrine of\r\nconstitutional supremacy in India as distinct from parliamentary supremacy in the\r\nUK.</b></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b>48 The Prevention of Damage to Public Property Act 1984 was enacted by\r\nParliament “to provide for prevention of damage to public property and for\r\nmatters connected therewith”.</b></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b>51 Based on the above, it is evident that there has been a growing recognition\r\nand consensus both in this Court and Parliament that acts of destruction of public\r\nand private property in the name of protests should not be tolerated.</b></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b>52 The persons who have been named as the accused in the FIR in the\r\npresent case held a responsible elected office as MLAs in the Legislative\r\nAssembly. In the same manner as any other citizen, they are subject to the\r\nboundaries of lawful behaviour set by criminal law. No member of an elected\r\nlegislature can claim either a privilege or an immunity to stand above the\r\nsanctions of the criminal law, which applies equally to all citizens. </b></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b>56. Privileges and immunities are not gateways to claim exemptions from the\r\ngeneral law of the land, particularly as in this case, the criminal law which\r\ngoverns the action of every citizen. To claim an exemption from the application of\r\ncriminal law would be to betray the trust which is impressed on the character of\r\nelected representatives as the makers and enactors of the law.<br></b></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b>59. On the touchstone of these principles, there can be no manner of doubt\r\nthat the CJM was justified in declining consent for the withdrawal of the\r\nprosecution under Section 321. </b></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b>60 .We shall now deal with two other arguments raised by the appellants and\r\nthe respondent-accused : First, whether the sanction of the Speaker of the House\r\nis required for prosecuting MLAs for occurrences within the precincts of the\r\nAssembly and second, whether the members are protected by privilege under\r\nArticle 194(2) which is available in case of publication of proceedings that take\r\nplace inside the House. <br></b></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b>69. For the second limb of Article 194(2) to be applicable, the following three\r\nelements must be present- first, there must be a publication; second, the\r\npublication must be by or under the authority of the House; and third, the\r\npublication must relate to a report, paper, vote or proceedings.</b></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b>79 To understand the meaning of the word ‘proceedings’ in Article 194(2), it is\r\nnecessary that we look at the context of the provision. Article 194(1) states that\r\nthe members of the House shall have freedom of speech in the legislature. The freedom of speech that is provided to the members is subject to the provisions of\r\nthe Constitution and other standing orders. </b></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b>85 For the reasons indicated above, we have arrived at the conclusion that\r\nthere is no merit in the appeals. The appeals shall accordingly stand dismissed.  <br></b></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b><br></b></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b> <br></b></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b> </b><br></p>', '62bd17d409401024a95c34c9ea7371b6.jpg', '09a8887dcefc562194bb275f2a3bc74e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-28', 1, '', '', '2021-07-30 03:23:28', '2021-07-30 03:24:14'),
(934, 'rQ9l0lKXwLFCAOAeCfevEf61C', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Police can NOT summon a person under Section 41-A in the absence of any inculpatory or indictive or incriminating material against that person. Karnataka High Court.  ', '<p><b>Manish Maheshwari vs&nbsp;State of Uttar Pradesh</b></p><p><b>Writ Petition 11028 of 2021 decided on 23 July 2021.&nbsp;</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/397984/1/WP11028-21-23-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/397984/1/WP11028-21-23-07-2021.pdf</a><br></b></p><p><b>36...Primarily, the complaint being against the commission by\r\ncertain individuals, whose act it is alleged, has the\r\ntendency of inciting tension and hatred among two\r\ncommunities and which incitement can result in violence&nbsp;and disturbance of law and order. The first part is\r\ndirected against seven named individuals and entities.\r\nThe second part of the complaint relates to omission or\r\nin-action on the part of 8th and 9th accused, who it is\r\nalleged, have failed to take note of the clarification issued\r\nby the respondent – Police and have permitted the\r\ncontinuation of the transmission and re-transmission of\r\nthe alleged doctored video and false news in the form of\r\ntweets.</b></p><p><b> \r\n37. It is not in dispute that the petitioner is not\r\nnamed as an accused. Neither the complaint nor the FIR\r\nwould indicate any complaint or allegation as against the\r\ninstant petitioner. It is proclaimed by the petitioner that\r\nhe is an employee, employed in the services of 9th\r\naccused. The proclamation is neither denied nor dented\r\nby the respondent – Police.</b></p><p><b>38.... It is also pertinent to note that the Notice is\r\nissued under Section 160 of Cr.P.C. Assuming that the\r\npetitioner could contribute, clarify or enlighten the\r\ninvestigating authority with regard to certain aspects of\r\nthe crime, which he desires to investigate and admittedly\r\nthe avowed purpose of the Notice is to clarify as to why\r\nthe platform has not deleted the offensive video or\r\noffensive tweet or why it has not prevented re-tweets.</b></p><p><b>39. Then, it is beyond the realms of imagination,\r\nas to how the petitioner, who has proclaimed that he has\r\nno control over the operations of 8th accused, be\r\nsummoned under Section 41A of Cr.P.C in the absence of\r\nany inculpatory or indictive or incriminating material.</b></p><p><b>40. The singular fact that emerges from a reading\r\nof Notice under Section 160 of Cr.P.C. is the awareness\r\nof the investigating officer with regard to the distinction\r\nbetween Twitter Inc. and Twitter India. That Twitter Inc.,\r\nis one which is responsible for the control and operation&nbsp;of the social media platform on which the alleged\r\noffensive video and messages were found.<br></b></p><p><b>41. From the short narration above, what emerges\r\nis that, the petitioner is not arrayed as an accused nor is&nbsp;it the case of the respondent that there is credible\r\ninformation received by them with regard to his\r\ninvolvement or that the respondent entertains a\r\nsuspicion, which is based on reasonable grounds that he\r\nhas committed any cognizable offence. In the absence of\r\nany of these three ingredients, the moot question that\r\narises, is as to whether the respondent could have\r\ninvoked Section 41A of Cr.P.C. at all? If the law\r\nmandates that the act be performed in a particular\r\nmanner or if the law mandates that the vesting of right is\r\ncontingent upon certain condition precedent or only in\r\nparticular circumstances, it is needless to state that the\r\nact can be performed only in that manner or the right\r\ncan be invoked only on compliance of the mandate. In\r\nthe absence of the pre-conditions being made out, then\r\nthe authority would necessarily be divested of the power\r\nto invoke the statutory provisions.&nbsp;</b></p><p><b>43. Thus, this Court is required to examine as to\r\nwhether any of the condition precedent, stipulated under\r\nSection 41A of Cr.P.C. are complied with or in other\r\nwords, the case of the petitioner falls in one of the three\r\ndistinct classes detailed therein. It is the specific case of\r\nthe petitioner that he is neither named as an accused nor\r\nhas any material been placed before the Court to\r\ndemonstrate that the respondent entertain a reasonable\r\nsuspicion or that they are in receipt of credible information. In the absence of any of these three preconditions having not been met with, it is to be construed\r\nthat the Notice is without the sanction of law and\r\nconsequently without jurisdiction and that as the\r\nprovision vests the authority in the investigating officer\r\nto invoke the provisions of Section only in case where\r\neither of the three pre-conditions are met with, it cannot\r\nbe laconically argued that the petition is not\r\nmaintainable. </b></p><p><b>44....The very approach of the respondent\r\nthat is, to not even resort to a preliminary investigation,\r\nto secure records, which are available in the public\r\ndomain, is surprising and forces the Court to infer\r\notherwise. It is not merely the failure to obtain\r\ninformation, which is available in the public domain and\r\nvery much with the statutory authorities but the ominous\r\nsilence maintained with regard to the merits of the\r\nmatter and an attempt to coax the Court to reject the\r\npetition on the singular ground of jurisdiction. No doubt\r\nthe parties are entitled to agitate on the grounds of&nbsp; territorial jurisdiction alone but the said issue by itself,\r\neven as per the rulings placed before this Court on both\r\nsides, is a question of applying the facts in the context of\r\nthe lis involved and the rights agitated by the parties and\r\nthe relief sought. \r\n&nbsp;</b></p><p><b>45. It is not in doubt that the very impugned\r\nnotice itself threatens the petitioner with punitive action\r\nand deprivation of liberty, which admittedly is a\r\nfundamental right. Hence, if the rights of the petitioner is\r\nviewed in the above background, it can be safely held\r\nthat the contention of the respondent is misplaced.&nbsp;<br></b></p><p><b>46. In the light of the above discussion, with\r\nregard to the authority of the respondent to invoke\r\nSection 41A of Cr.P.C., it has been demonstrated in\r\nunmistakable terms that the petitioner, who is not an\r\naccused and there being no compliance with the\r\ncondition precedents imposed under Section 41A of\r\nCr.P.C., it can by no stretch of imagination be described\r\nas a reasonable exercise of power and thereby rendering&nbsp;it a colorable exercise. In that view of the matter, it can\r\nbe held that the invocation of power under Section 41A\r\nof Cr.P.C. is without jurisdiction. Though a long list of\r\nrulings are relied upon, the rulings involves persons, who\r\nhave either been arrayed as accused or the petition\r\ninvolves lis in a civil domain. In view of the above, it has\r\nto be concluded that the impugned Annexure-A Notice is\r\nvitiated and can be the premise for the petitioner to\r\nreasonably apprehend breach of his constitutionally\r\nguaranteed fundamental rights. </b></p><p><b>\r\nIn the event, the investigating officer desires to\r\nsecure the statement or such information, it is open for\r\nthe respondent to either require the petitioner to interact\r\non virtual mode or to meet the petitioner either at his\r\nresidence or at the office address as detailed in\r\nAnnexure-C.&nbsp;<br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p><p> </p><p> </p>', '9701d2b1878997897cbce64508c4f0be.jpg', 'be0db8797f14f443f51648ecfa5852c2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-23', 1, '', '', '2021-07-30 18:52:10', '2021-07-30 18:52:57'),
(935, '3pSVsEwPGeDhKv88hWBjBikPL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Education. \'Punishment imposed on student for malpractice shall be commensurate with the gravity of the misconduct\'. Karnataka High Court invokes doctrine of proportionality to reduce punishment imposed on a student. ', '<p><b>The Registrar (Evaluation) vs Mohammed Azvin and others.&nbsp;</b></p><p><b>Writ Appeal 333 of 2021 decided on 1st July 2021</b></p><p><b>Justice B.V.Nagarathna and Justice Hanchate Sanjeevkumar</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/397495/1/WA333-21-01-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/397495/1/WA333-21-01-07-2021.pdf</a></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">40. The principle that the penalty to be imposed must have a relationship with the seriousness of the offence or infringement, is expounded by the doctrine of proportionality in Ranjit Thakur vs. Union of India, [AIR 1987 SC 2387]. It was held that the doctrine of&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">proportionality, as part of the concept of judicial review, would imply that if a sentence is imposed which is disproportionate to the offence, it would not be immune from correction. In other words, irrationality and perversity are recognised basis of judicial review. The underlying rationale is that a penalty imposed must be commensurate with the gravity of the misconduct and if any penalty is disproportionate to the gravity of misconduct, it would be arbitrary and violative of Article 14 of the Constitution of India. Where the punishment is “severe” and “wholly disproportionate” to the offence committed or the infringement caused by a person or a breach committed, then an element of arbitrariness is introduced in the punishment awarded.</b></p><p><b>41. In Om Kumar vs. Union of India, [AIR 2000 SC 3689], the principle of right of primary review and right of secondary review were considered when a case of proportionality of punishment arose. It was further observed that where an administrative action is challenged as “arbitrary” under Article 14 of the Constitution of India, the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">question will be whether the administrative order is “rational” or “reasonable” and the test then is the Wednesbury test. In other words, the Court would take into consideration whether the authority had acted illegally or omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether its view is one which no reasonable person could have taken. If the action does not satisfy the rules, it has to be treated as arbitrary. It was further held that where an administrative decision relating to punishment in disciplinary cases is questioned as being arbitrary under Article 14 of the Constitution of India, the Court is confined only to Wednesbury principles as a secondary reviewing authority.</b></p><p><b>42. In B.C. Chaturvedi vs. Union of India, [(1995) 6 SCC 749], it was observed that if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court, it would appropriately mould the relief, either directing the disciplinary authority/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.</b></p><p><b>43. In Union of India vs. G.Ganayutham, [AIR 1997 SC 3387], it was observed that the Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account and also consider whether the decision was absurd or perverse, but the Court cannot substitute its decision to that of the authority concerned, unless the said decision suffers from procedural impropriety or was irrational. This is Wednesbury test. [Source: “Principles of Administrative Law” by M.P. Jain &amp; S.N. Jain].</b></p><p><b>44. Hence, we find that this is a fit case where judicial review of nature of punishment imposed on the appellant-student is called for on the basis of the doctrine of proportionality of punishment. This aspect is magnified by the fact that such a severe punishment has been imposed in the absence of reasons being stated by the authorities which is a mandatory requirement under the Guidelines. Hence, we substitute the punishment imposed by denial of benefit of performance in that particular examination only in which the appellant-student was found guilty of malpractice i.e., punishment II(a).</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'a5074746b351d62a40ac703208c9e1e5.jpg', '702d03292cf241db21bc73ab4802b6ed.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-01', 1, '', '', '2021-07-30 21:36:35', '2021-07-30 21:36:35'),
(936, 'pSm97ncRnknI3fMaUsTe1MfNM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constitution of India. Jurisdiction of High Court to decide validity of notice issued by the Police from another State. Case law discussed. Karnataka High Court.  ', '<p><b>Manish Maheshwari vs State of Uttar Pradesh</b></p><p><b>Writ Petition 11028 of 2021 decided on 23 July 2021.&nbsp;</b></p><p></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/397984/1/WP11028-21-23-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/397984/1/WP11028-21-23-07-2021.pdf</a></b></p><p><b>The Hon’ble Apex Court in the case of Om Prakash\r\nSrivastava Vs. Union of India and Another, reported\r\nin (2006) 6 SCC 207, has been pleased to observe in\r\nparagraphs 7, 8 and 14, as under:-&nbsp;</b></p><p><b><i>“7. The question whether or not cause of action\r\nwholly or in part for filing a writ petition has\r\narisen within the territorial limits of any High\r\nCourt has to be decided in the light of the nature\r\nand character of the proceedings under Article\r\n226 of the Constitution. In order to maintain a\r\nwrit petition, a writ petitioner has to establish that\r\na legal right claimed by him has prima facie either\r\nbeen infringed or is threatened to be infringed by\r\nthe respondent within the territorial limits of the\r\nCourt\'s jurisdiction and such infringement may\r\ntake place by causing him actual injury or threat\r\nthereof. &nbsp;</i></b></p><p><b><i>8. Two clauses of Article 226 of the Constitution\r\non plain reading give clear indication that the High\r\nCourt can exercise power to issue direction, order\r\nor writs for the enforcement of any of the\r\nfundamental rights conferred by Part III of the\r\nConstitution or for any other purpose if the cause\r\nof action wholly or in part had arisen within the\r\nterritories in relation to which it exercises\r\njurisdiction notwithstanding that the seat of the\r\nGovernment or authority or the residence of the\r\nperson against whom the direction, order or writ\r\nis issued is not within the said territories.&nbsp;</i></b></p><p><b><i>14. The expression “cause of action” is generally\r\nunderstood to mean a situation or state of facts\r\nthat entitles a party to maintain an action in a\r\ncourt or a tribunal; a group of operative facts\r\ngiving rise to one or more bases of suing; a\r\nfactual situation that entitles one person to obtain\r\na remedy in court from another person (see\r\nBlack\'s Law Dictionary). In Stroud\'s Judicial\r\nDictionary a “cause of action” is stated to be the\r\nentire set of facts that gives rise to an enforceable\r\nclaim; the phrase comprises every fact, which if\r\ntraversed, the plaintiff must prove in order to\r\nobtain judgment. In Words and Phrases (4th Edn.)\r\nthe meaning attributed to the phrase “cause of&nbsp;action” in common legal parlance is existence of\r\nthose facts, which give a party a right to judicial\r\ninterference on his behalf. (See Navinchandra N.\r\nMajithia v. State of Maharashtra).”</i></b></p><p><b> The Hon’ble Apex Court in the case of Oil and\r\nNatural Gas Commission Vs. Utpal Kumar Basu &amp;\r\nOthers, reported in (1994) 4 SCC 711, has been\r\npleased to observe in paragraphs 5 and 6, as under:-&nbsp;</b></p><p><b><i>“5. Clause (1) of Article 226 begins with a non\r\nobstante clause — notwithstanding anything in\r\nArticle 32 — and provides that every High Court\r\nshall have power “throughout the territories in\r\nrelation to which it exercises jurisdiction”, to issue\r\nto any person or authority, including in\r\nappropriate cases, any Government, “within those\r\nterritories” directions, orders or writs, for the\r\nenforcement of any of the rights conferred by Part\r\nIII or for any other purpose. Under clause (2) of\r\nArticle 226 the High Court may exercise its power\r\nconferred by clause (1) if the cause of action,\r\nwholly or in part, had arisen within the territory\r\nover which it exercises jurisdiction,\r\nnotwithstanding that the seat of such Government\r\nor authority or the residence of such person is not\r\nwithin those territories. On a plain reading of the\r\naforesaid two clauses of Article 226 of the&nbsp;Constitution it becomes clear that a High Court\r\ncan exercise the power to issue directions, orders\r\nor writs for the enforcement of any of the\r\nfundamental rights conferred by Part III of the\r\nConstitution or for any other purpose if the cause\r\nof action, wholly or in part, had arisen within the\r\nterritories in relation to which it exercises\r\njurisdiction, notwithstanding that the seat of the\r\nGovernment or authority or the residence of the\r\nperson against whom the direction, order or writ\r\nis issued is not within the said territories. In order\r\nto confer jurisdiction on the High Court of\r\nCalcutta, NICCO must show that at least a part of\r\nthe cause of action had arisen within the territorial\r\njurisdiction of that Court. That is at best its case\r\nin the writ petition. </i></b></p><p><b><i>6. It is well settled that the expression “cause of\r\naction” means that bundle of facts which the\r\npetitioner must prove, if traversed, to entitle him\r\nto a judgment in his favour by the Court. In\r\nChand Kour v. Partab Singh, Lord Watson said: </i></b></p><p><b><i>“… the cause of action has no relation\r\nwhatever to the defence which may be set\r\nup by the defendant, nor does it depend\r\nupon the character of the relief prayed for\r\nby the plaintiff. It refers entirely to the\r\nground set forth in the plaint as the cause of\r\naction, or, in other words, to the media\r\nupon which the plaintiff asks the Court to\r\narrive at a conclusion in his favour.”</i></b></p><p> </p><p><b><i>Therefore, in determining the objection of lack of\r\nterritorial jurisdiction the court must take all the\r\nfacts pleaded in support of the cause of action into\r\nconsideration albeit without embarking upon an\r\nenquiry as to the correctness or otherwise of the\r\nsaid facts. In other words the question whether a\r\nHigh Court has territorial jurisdiction to entertain\r\na writ petition must be answered on the basis of\r\nthe averments made in the petition, the truth or\r\notherwise whereof being immaterial. To put it\r\ndifferently, the question of territorial jurisdiction\r\nmust be decided on the facts pleaded in the\r\npetition. Therefore, the question whether in the\r\ninstant case the Calcutta High Court had\r\njurisdiction to entertain and decide the writ\r\npetition in question even on the facts alleged must\r\ndepend upon whether the averments made in\r\nparagraphs 5, 7, 18, 22, 26 and 43 are sufficient\r\nin law to establish that a part of the cause of\r\naction had arisen within the jurisdiction of the\r\nCalcutta High Court.”</i></b></p><p><b>The Hon’ble Apex Court in the case of\r\nNavinchandra N. Majithia Vs. State of Maharashtra\r\nand Others, reported in (2000) 7 SCC 640, has been\r\npleased to observe in paragraph 43 as under:-</b></p><p><b><i>“43. We make it clear that the mere fact that FIR\r\nwas registered in a particular State is not the sole\r\ncriterion to decide that no cause of action has\r\narisen even partly within the territorial limits of\r\njurisdiction of another State. Nor are we to be\r\nunderstood that any person can create a fake\r\ncause of action or even concoct one by simply\r\njutting into the territorial limits of another State or\r\nby making a sojourn or even a permanent\r\nresidence therein. The place of residence of the\r\nperson moving a High Court is not the criterion to\r\ndetermine the contours of the cause of action in\r\nthat particular writ petition. The High Court before\r\nwhich the writ petition is filed must ascertain\r\nwhether any part of the cause of action has arisen\r\nwithin the territorial limits of its jurisdiction. It\r\ndepends upon the facts in each case.”</i></b></p><p> </p><p><b>\r\nThe Hon’ble Apex Court in Jagisha Arora Vs.\r\nState of Uttar Pradesh and Another, reported in\r\n(2019) 6 SCC 619, has been pleased to observe in\r\nparagraph 2 as under:- </b></p><p><b><i>“2. The fundamental rights guaranteed\r\nunder the Constitution of India and in particular\r\nArticles 19 and 21 of the Constitution of India are\r\nnon-negotiable.” &nbsp;</i></b></p><p><b>50. Thus, from the above, it can be gathered that\r\nit is the duty of the Constitutional Courts to act and\r\nprotect against any assault on the fundamental right of a\r\ncitizen and the Constitutional Courts cannot be shackled\r\nin the light of Article 226 (2) of the Constitution of India.\r\nIn the light of the above rulings and in the facts and\r\ncircumstances of this case, it is held that the writ petition\r\nby the petitioner, who is not an accused and his liberties\r\nnot being governed by the Code of Criminal Procedure\r\nand in the light of the fact that issuance of Section 41A of\r\nCr.P.C Notice being vitiated by malafides and being one\r\nwithout jurisdiction, the writ petition is held to be\r\nmaintainable. The points for consideration are answered\r\naccordingly.&nbsp;&nbsp;<br></b></p><p><b><br></b></p><p><b>&nbsp;</b><br></p>', '9a08561ad46946bd654b4aaffa773f2f.jpeg', '557a3bae8dc897bde5bdc886444f55ff.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-23', 1, '', '', '2021-07-30 21:58:02', '2021-07-30 21:58:02'),
(937, 'hMyMOwdK9A8D43mVsuLJ86Yt5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal-Service Law. When employee is held to be innocent in departmental enquiry, criminal proceedings can NOT be continued on the principle of criminal trial needing higher standard of proof. Karnataka High Court. ', '<p><b>A.L.Jayaramu vs State of Karnataka and others.&nbsp;</b></p><p><b>Writ Petition 19700 of 2018 decided on 27 July 2021.&nbsp;</b></p><p><b>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/398190/1/WP19700-18-27-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/398190/1/WP19700-18-27-07-2021.pdf</a></b></p><p><b>The petitioner before this Court is seeking quashing of complaint dated 26-10-2015 and the resultant FIR in Crime No.659 of 2015 dated 28-10-2015.</b></p><p><b>2...The petitioner was an employee of the Government of Karnataka and at the relevant point in time was working as an Assistant Administrative Officer, District Ayush Office, Bellary. The 2nd respondent registers a complaint on 26-10-2015 alleging that the petitioner along with four others had indulged in certain irregularities in the admissions given to students belonging to different States for the first year bachelor degree in Unani Medical Sciences and further alleged that the petitioner had indulged in creation of documents for eligibility of those students for professional courses notwithstanding the fact that those students did not have any eligibility to enter professional courses. The said complaint resulted in registration of a FIR against the petitioner in Crime No.659 of 2015 for offences punishable under Section 34, 408, 420, 465, 468 and 471 of the Indian Penal Code. The Government by an order dated 19-12- 2015 referred the matter to the 3rd respondent/Criminal Investigation Department (‘CID’ for short) for investigation and report.</b></p><p><b>6. The learned counsel appearing for the petitioner submits that criminal proceedings should not have been permitted to proceed further in the light of exoneration of the petitioner in the departmental inquiry and an order being passed by the competent authority for withdrawal of investigation conducted by the CID in furtherance of registration of criminal case. He would also submit that, if the&nbsp; criminal&nbsp; proceedings were to be proceeded with, it would be an exercise in futility and agonizing to the petitioner who is now retired on attaining the age of superannuation.</b></p><p><b>11. The issue&nbsp; that&nbsp; falls&nbsp; for&nbsp; my&nbsp; consideration&nbsp; is,&nbsp; whether the proceedings before the criminal Court in Crime No.659&nbsp; of 2015 should be permitted to continue in the light of exoneration of the petitioner in the departmental enquiry?</b></p><p><b>12. The allegations levelled in the criminal case, no doubt, are for offences under the IPC. The facts and the incident resulted in two proceedings – one by registration of FIR and the other by issuance of charge&nbsp; sheet&nbsp; in&nbsp; the&nbsp; departmental&nbsp; side.&nbsp; In&nbsp; the enquiry proceedings, the findings are dependent upon probabilities being preponderant,&nbsp; the&nbsp; Government&nbsp; failing&nbsp; to&nbsp; prove any of the allegations against the petitioner even on probabilities and the Disciplinary Authority accepting the said report and exonerating the petitioner. The chances of the Government proving the allegations for the&nbsp; offences&nbsp; under&nbsp; criminal law, where the guilt has to be proved beyond&nbsp; all&nbsp; reasonable doubt, is bleak. Since chances&nbsp; are&nbsp; bleak&nbsp; for&nbsp; the&nbsp; reasons indicated hereinabove, it would&nbsp; be&nbsp; improper&nbsp; to&nbsp; permit&nbsp; the criminal trial to proceed any further.</b></p><p><b>13. This view of mine in this regard, is fortified by the judgment of the Apex Court in the case of P.S. RAJYA v. STATE OF BIHAR1,&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(1996) 9 SCC 1. ..</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Apex Court has clearly delineated, that if allegations in the departmental inquiry&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">could not be proved on merit and the person is held to be innocent, criminal prosecution on the said facts cannot be permitted to be continued on the underlying principle of criminal trial needing higher standard of proof. Exoneration of the petitioner in the departmental enquiry is not on technicalities&nbsp; but on merits as there was no evidence against the petitioner to drive home the charge. Therefore, in terms of the law laid down by the Apex Court in the aforesaid judgments, in my considered view, the chances of the prosecution succeeding in the criminal trial being bleak, this Court cannot permit continuance of such criminal trial, any further.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16. Therefore, in my considered view, this is a fit case where the inherent jurisdiction of the High Court under Section&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">482 of the Cr.P.C. is invoked to quash the&nbsp; proceedings&nbsp; mentioned above. In the&nbsp; facts&nbsp; peculiar&nbsp; to&nbsp; this&nbsp; case, continuance of the criminal trial will be an abuse of the process and result in miscarriage of justice.</b></p><p><b>The writ petition is allowed.</b></p>', '1595c565b967f86b48f065eaf3516326.jpg', '00ee648269bff13dec81c934921dc93a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-27', 1, '', '', '2021-07-30 22:29:33', '2021-07-30 22:29:33'),
(938, 'lU7biZFCBnNdFVkfhft98u4Ji', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Section 200. A power of attorney holder, as agent of the complainant, can present complaint before the Magistrate. Karnataka High Court.  ', '<p><b>Sri Sathya Sai Central Trust and another vs&nbsp;State of Karnataka and another.</b></p><p><b>Criminal Petition 1422 of 2021, decided on 22 July 2021</b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link:&nbsp;<a href=\"https://karnatakajudiciary.kar.nic.in/judgements/crl.p-1422-2021-22072021.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/crl.p-1422-2021-22072021.pdf</a></span><br></b></p><p><b>All these petitions filed under section 482 of\r\nCr.P.C. are decided by a common order as they arise\r\nout of C.C.110/2021 (Cr. No. 73/2020 registered by\r\nNandigiridhama Police Station) on the file of II\r\nAdditional Civil Judge and JMFC, Chikkaballapura.&nbsp;&nbsp;</b></p><p><b>2. The second respondent lodged a complaint,\r\nPCR No. 216/2020, under section 200 Cr.P.C in the\r\ncourt of II Additional Civil Judge and JMFC,\r\nChikkaballapura (referred to as ‘Magistrate’ hereafter),\r\nagainst the petitioners. The Magistrate referred the\r\ncase to the police for investigation under section\r\n156(3) Cr.P.C. Thereafter the police registered FIR in\r\nCr. No. 73/2020 and filed charge sheet in relation to\r\noffences punishable under sections 420, 511 and 120B\r\nof IPC and section 82 of the Indian Registration Act.&nbsp;In Crl.Ps.1197/2021, 1219/2021 and 1422/2021, the petitioners have sought quashing of FIR. In\r\nCrl.P.2286/2021, the petitioner has sought quashing\r\nof charge sheet numbered as C.C.110/2021.&nbsp; &nbsp;</b></p><p><b>Whether the complaint presented by\r\nGPA Holder of the complainant is\r\nmaintainable?</b></p><p><b>20. Sri. K.G.Raghavan and Sri. Raghavendra\r\nSrivatsa raised the question of competency of the\r\npower of attorney holder of the complainant to\r\npresent a complaint under section 200 of Cr.P.C.\r\nThey argued that at the time when the complaint was\r\npresented to the court, original power of attorney was\r\nnot produced; and it was only at a later stage that\r\noriginal was produced. But the original produced at a\r\nlater stage is not the original of the photocopy of the\r\npower of attorney that had been produced along with\r\nthe complaint. They submitted that the records from\r\nthe Magistrate’s court could be secured for verifying\r\nwhether the original power of attorney was produced&nbsp;before the court at the time of presentation of\r\ncomplaint or not. &nbsp;<br></b></p><p><b>21. The original records were secured and on\r\nverification, it is found that what had been produced\r\nwith the complaint was a photocopy of the power of\r\nattorney dated 11.06.2020. It is also borne out from\r\nthe order sheet that when one of the petitioners\r\napplied for issuing certified copy of the power of\r\nattorney, the office of JMFC declined to issue the\r\ncertified copy for the reason that certified copy of a\r\nphotocopy cannot be issued. It was on 15.02.2021\r\nthat original power of attorney dated 11.02.2021 was\r\nproduced by advancing the case. But it is not the\r\noriginal of the photocopy produced at the time of\r\npresentation of the complaint. Any way the fact\r\nremains that the complainant is represented by his\r\nagent, the controversy in this regard is not material.\r\nBut Sri K.G. Raghavan and Raghavendra Srivatsa&nbsp;argued another point about locus standi of the power\r\nof attorney holder to present a complaint because he\r\nis not the real aggrieved party. They submitted that\r\nthe complaint should have been presented by the\r\ncomplainant personally. &nbsp;<br></b></p><p><b>22. Sri. Sushil Kumar Jain met this argument by\r\nreferring to the judgment of the Supreme Court in the\r\ncase of A.R.Antulay vs Ramdas Sriniwas Nayak\r\nand Another [(1984) 2 SCC 500]. His argument\r\nwas that anybody can set the criminal law into motion\r\nunless a statute provides very specifically as to\r\neligibility of a complainant.&nbsp;<br></b></p><p><b>23. It cannot be said that there is no substance\r\nin the argument of Sri. K.G.Raghavan and Sri\r\nRaghavendra Srivatsa. If I am asked to express my\r\npersonal view about competency of a person to\r\npresent a complaint under section 200 Cr.P.C, I&nbsp;<br></b></p><p><b>humbly express my view that, section 2(d) defines the\r\nword ‘complaint’ which means any allegation made\r\norally or in writing to a Magistrate, with a view to his\r\ntaking action under this Code, that some person,\r\nwhether known or unknown, has committed an\r\noffence, but does not include a police report. The\r\nword ‘complainant’ is not defined, however in sections\r\n195, 195A, 198, 198A, 198B and 199 of Cr.P.C. it is\r\nclearly specified as to who can make a complaint. So\r\nalso there are some special laws where provisions are\r\nmade for taking cognizance of offences upon a\r\ncomplaint by authorized or designated officers. So,\r\nexcept in the cases where the law in clear terms\r\nstates as to who is competent to lodge a complaint,\r\nthere is no bar as such for a third party to set criminal\r\nlaw into motion for prosecuting the perpetrators of\r\ncrime. That is the reason why anybody can report a\r\ncognizable offence to the police. But here in my&nbsp;opinion, a further distinction can be made. Offences\r\nsuch as theft, robbery, dacoity, attempt to murder,\r\nmurder, rape, etc, have impact on the society and in\r\nrespect of such offences anybody can set law into\r\nmotion. But there are certain offences which do not\r\ngenerally affect the society except the person\r\naffected. This is the reason why section 320 Cr.P.C.\r\nprovides for compounding of some of the offences that\r\nmore affect a person, called aggrieved party, than\r\nsociety at large. At least in these types of\r\ncompoundable offences, in my opinion, a complaint\r\nunder section 200 Cr.P.C. has to be lodged by the\r\naggrieved party. &nbsp;<br></b></p><p><b>24. The Hon’ble Supreme Court in the case of\r\nA.R.Antulay (supra) has held,&nbsp;“6. It is a well recognised principle of\r\ncriminal jurisprudence that anyone can set\r\nor put the criminal law into motion except where the statute enacting or creating an\r\noffence indicates to the contrary. The\r\nscheme of the Code of Criminal Procedure\r\nenvisages two parallel and independent\r\nagencies for taking criminal offences to\r\ncourt. Even for the most serious offence of\r\nmurder, it was not disputed that a private\r\ncomplaint can, not only be filed but can be\r\nentertained and proceeded with according\r\nto law. Locus standi of the complainant is a\r\nconcept foreign to criminal jurisprudence\r\nsave and except that where the statute\r\ncreating an offence provides for the\r\neligibility of the complainant, by necessary\r\nimplication the general principle gets\r\nexcluded by such statutory provision……….” \r\n&nbsp;<br></b></p><p><b>25. The principle enunciated by the Hon’ble\r\nSupreme Court is binding as it is the law of the land.\r\nTherefore the argument of Sri. Sushil Kumar Jain is to\r\nbe accepted. Moreover, here, the power of attorney\r\nholder cannot be treated as a third party, he is the&nbsp;agent of the complainant, his locus standi cannot be\r\nquestioned. Point No.(ii) is answered in affirmative. \r\n<br></b></p><p> <br></p>', 'b1509dc93d4f0518af56a17794b883e9.jpg', 'aba5d5a0480479749427d4ee3bc8b94f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-22', 1, '', '', '2021-08-01 19:50:03', '2021-08-02 01:00:39');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(939, 'VJsFjKw3cYXFMESQbzCzL1k98', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land Acquisition Act, 1894. Where there is direction by reference Court to pay interest on solatium, interest is payable from the date of dispossession and not from the date of Supreme Court decision in Sunder vs Union Of India. Karnataka High Court. ', '<p><b>Basappa Gadigappa Pujar and others vs The Special Land Acquisition Officer and others. </b></p><p><b>Writ Petition 108888 of 2016 decided on 9 April 2021</b></p><p><b>Judgment Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/383967/1/WP108888-16-09-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/383967/1/WP108888-16-09-04-2021.pdf</a></b></p><p><b>7. I have considered the submissions. Section 28 of the said Act, reads thus: </b></p><p><i><b>“28. Collector may be directed to pay interest on excess compensation.- If the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess at the rate of nine per centum per annum from the date on which he took possession of the land to the date of payment of such excess into Court:</b></i></p><p><b><i>Provided that the award of the Court may also direct that where such excess or any part thereof is paid into Court after the date of expiry of a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry.”</i></b></p><p><b>10. In the present case, I have already quoted the operative part of the award under Section 18 of the said Act. There is a specific direction issued by the Reference Court holding that the petitioners are entitled to interest as held in Sunder v. Union Of India  (2001)7 SCC 211. As observed earlier, in the case of Sunder, the Apex Court held that component of solatium under Sub-Section </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(2) of Section 23 of the said Act is an integral part of compensation referred in Sections 28 and 34 of the said Act. Thus, in this case, there is a specific direction to pay interest as held in the case of Sunder. The learned Additional Government Advocate tried to argue that Clause (v) of the award itself means that the interest will be payable from the date of decision in the case of Sunder. The said submission cannot be accepted inasmuch as in the case of Sunder, only the legal position under Section 28 was stated. In Sundar’s case, there is no directions issued that interest under Section 28 will be payable on the component of solatium only from the date of the said decision. Therefore, in the present case, the directions contained in paragraph 54 of the decision in Gurupreet Singh v. Union Of India (2006)8 SCC 457 will not apply.</b></p><p><b>11. The decision relied upon by the learned Additional Government Advocate in Tamilnadu Housing Board v. Adbul Salam Sarkar (Dead) And Others in Civil Appeal No.94 of 2021 will not help him. In the facts of that case, the Reference Court had granted interest on solatium. However, in an appeal, a direction was issued by the High Court holding that the claimants were not entitled to interest on solatium. However, liberty was granted to them to file a petition before the Reference Court depending upon the decision of the larger Bench. The said direction of the High Court was confirmed by the Apex Court. Therefore, in the facts of the case before the Apex Court, there was no direction issued in the award made under Section 18 of the said Act to pay interest on solatium. That is how the Apex Court directed that interest on solatium will be payable in the facts of the case from the date of decision in the case of Sunder (supra).</b></p><p><b>12. Therefore, I am of the considered view that the learned Executing Court committed an error by holding that the petitioners will be entitled to interest under Section 28 of the said Act on the component of solatium from the date of the decision in the case of Sunder (supra) and not from the date of dispossession.</b></p><p><b>Therefore, the impugned order, insofar as the finding recorded in paragraph 6 is concerned, has to be set aside. Consequently, the order of refund has to be set aside. Accordingly, I pass the following:</b></p><p><b>The petitioners are entitled to interest under Section 28 of the Land Acquisition Act, 1894 on the component of solatium as provided in Section 28 and not from the date of decision in Sunder’s case. Thus, as provided under Section 28 of the said Act, interest on solatium will be also payable from the date on which the possession of the acquired land was taken over.</b></p><p><b> </b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '6008d9df9cfc6965e1aaf59cf5dad308.jpg', 'fcac479c090ee97844cb7b8d521e1aae.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-04-09', 1, '', '', '2021-08-02 18:32:43', '2021-08-02 18:36:10'),
(940, 'plId8iqhaBsC7gzvwhdlkZxJX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Private complaint without affidavit for having approached jurisdictional police first and then the Superintendent of Police can NOT be entertained by the Magistrate. Karnataka High Court. ', '<p><b>Sri Sathya Sai Central Trust and another vs State of Karnataka and another.</b></p><p><b>Criminal Petition 1422 of 2021, decided on 22 July 2021</b></p><p><b>Judgment Link: <a href=\"https://karnatakajudiciary.kar.nic.in/judgements/crl.p-1422-2021-22072021.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/crl.p-1422-2021-22072021.pdf</a></b></p><p><b>All these petitions filed under section 482 of Cr.P.C. are decided by a common order as they arise out of C.C.110/2021 (Cr. No. 73/2020 registered by Nandigiridhama Police Station) on the file of II Additional Civil Judge and JMFC, Chikkaballapura.&nbsp;&nbsp;</b></p><p><b>Whether the complaint is bad in law as it is not accompanied by a proper affidavit required to be filed in accordance with&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">judgment of the Supreme Court in the case of Priyanka Srivastava and Another vs State of Uttar Pradesh and Others [(2015) 6 SCC 287]?&nbsp;</b></p><p><b>26. The learned counsel for the petitioners,\r\nmainly Sri. K.G. Raghavan, assailed the complaint on\r\nthe count that the complainant had not filed an\r\naffidavit as mandated by the Supreme Court in the\r\ncase of PRIYANKA SRIVASTAVA AND ANOTHER vs\r\nSTATE OF U.P. AND OTHERS [(2015) 6 SCC\r\n287]. Elaborating on this point, it was argued by him\r\nthat the complainant should make a specific statement\r\nin the complaint that he exhausted the remedies\r\nunder Section 154(1) and Section 154(3) of Cr.P.C.\r\nbefore approaching the court under Section 200\r\nCr.P.C. The complainant is also required to produce\r\nproof for having exhausted the remedies\r\ncontemplated under Section 154(1) and Section\r\n154(3) of Cr.P.C. and file an affidavit to that effect as&nbsp;held by the Supreme Court in Priyanka Srivastava.\r\nIn the case on hand nothing is there indicating the\r\nremedies under Section 154(1) and Section 154(3)\r\nCr.P.C. being availed and that no affidavit is also filed.\r\nThe affidavit filed with the complaint is very cryptic\r\nand it does not meet the requirement of the mandate\r\nin Priyanka Srivastava. The learned counsel also\r\nsubmitted that Priyanka Srivastava has been\r\nconsistently followed by this court in many cases viz.,\r\nC.T.RAVI vs STATE OF KARNATAKA AND OTHERS\r\n(MANU/KA/4396/2020); JAN WILLEM ADRIAAN\r\nDE GEUS AND ORS. vs. STATE OF KARNATAKA\r\nAND OTHERS (MANU/KA/2900/ 2017);\r\nNITHEESH AND OTHERS vs STATE OF\r\nKARNATAKA AND OTHERS (MANU/KA/7499/\r\n2019) and SHOBHA RANI &amp; OTHERS vs STATE OF\r\nKARNATAKA AND OTHERS (MANU/KA/4409/\r\n2019). All the counsel argued in unison that the&nbsp; complaint deserves to be quashed for this reason\r\nalone.</b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>27. Sri. Sushil Kumar Jain, per contra argued\r\nthat the order dated 3.11.2020 shows that the\r\nMagistrate has made verification regarding veracity of\r\nthe complaint and then referred the matter for\r\ninvestigation which is in accordance with the judgment\r\nin Priyanka Srivastava. His further submission was\r\nthat the direction given in Priyanka Srivastava to\r\nexhaust remedy under Section 154(1) is merely\r\nrecommendatory, and it does not take away the\r\npower of the Magistrate under Section 156(3) Cr.P.C.,\r\nto refer the matter for investigation. He also\r\nsubmitted that the direction in Priyanka Srivastava\r\nis to discourage frivolous complaints, and that the\r\npresent complaint is not frivolous.</b></span></p><p><b>28. The direction given in Priyanka Srivastava\r\nhas been held to be mandatory in many judgments of\r\nthis court (referred supra). It is not mere directory or\r\nrecommendatory as argued by Sri. Sushil Kumar Jain.\r\nIn the case on hand, of course an affidavit has been\r\nfiled, it is just a verifying affidavit and does not\r\nindicate that the complainant exhausted the remedies\r\nunder Section 154(1) and Section 154(3) Cr.P.C.\r\nThere is nothing to show that he approached the\r\njurisdictional police first and then the Superintendent\r\nof Police. The case on hand is such that the\r\ncomplainant cannot straight away approach the court\r\nof Magistrate with a complaint under Section 200\r\nCr.P.C., unlike, for instance, a complaint for the\r\noffence under Section 138 of N.I.Act, where the law\r\nitself prescribes that the Magistrate can only entertain\r\na complaint. The Magistrate appears to have not&nbsp;applied his mind before proceeding further. He ought\r\nto have directed the complainant to file a proper\r\naffidavit. Thus looked, entertaining the complaint is\r\nbad in law, the complaint should have been rejected\r\nat the threshold. Therefore point No.(iii) is answered\r\nin affirmative. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>&nbsp;<br></b></p><p><br></p>', '34fad7f27c489447627be4b214cab8eb.jpg', '85f1eb3e3530ed29687963c1f60b8825.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-22', 1, '', '', '2021-08-02 23:07:29', '2021-08-02 23:07:29'),
(941, 'dUMuUeC2reDKQFRtzWxMyhFxR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Order 7 Rule 11. When suit instituted by plaintiffs is clearly abuse of process of the Court and bereft of any merit, the trial Court has power to reject the plaint. Karnataka High Court.  ', '<p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">P.R.Chenna Reddy vs Parvathamma and others. Civil Revision Petition 158 of 2019 decided on 23 July 2021</b><br></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/398801/1/CRP158-19-23-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/398801/1/CRP158-19-23-07-2021.pdf</a></b><br></p><p><b>The petitioner in this revision petition calls in question the order dated 30.08.2018 passed by the&nbsp; LXVII Additional City Civil and Sessions Judge, Bengaluru City in O.S.No.4224 of 2017 rejecting the application filed by the petitioner under Order VII Rule 11 (a) &amp; (d) of the Code of Civil Procedure seeking rejection of the plaint.</b></p><p><b>13.While considering the application under Order VII Rule 11 of CPC what is to be looked into is the plaint averments. The plaint averments even if looked into cannot give rise to cause of action on sheer ground of it being barred by limitation.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">...The plaintiffs admit that the revenue records were changed in the name of the petitioner but contend that they are in possession of the property. Revenue records having been changed pursuant to certain sale deeds which the plaintiffs themselves admit cannot be seen to be in possession of the property. It is for this reason, being fully aware of the earlier transaction, they cleverly seek the prayer that the three sale deeds to be not binding on them. It is this ingenious drafting that has&nbsp; led to the filing of the present suit after suit on the very same cause of action claiming to be different family members. It is in this light, the trial&nbsp; Court&nbsp; ought&nbsp; to have considered the application in its proper perspective and rejected the plaint as was done on earlier occasions&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">concerning the very same survey number and very same sale deeds.</b></p><p><b>14. It is apposite to consider the&nbsp; judgment&nbsp; of&nbsp; the&nbsp; Apex Court under the parameters of consideration of an application filed under Order VII Rule 11 of CPC&nbsp; for&nbsp; rejection of the plaint. The Apex Court in the case of DAHIBEN v. ARVINDBHAI KALYANJI BHANUSALI (2020) 7 SCC 366</b></p><p><b>..\"23.3.<span style=\"white-space:pre\">	</span>The underlying object of Order 7&nbsp; Rule&nbsp; 11(a)&nbsp; is&nbsp; that&nbsp; if&nbsp; in&nbsp; a&nbsp; suit,&nbsp; no&nbsp; cause of action is disclosed, or the suit is barred&nbsp; by&nbsp; limitation&nbsp; under&nbsp; rule&nbsp; 11(d),&nbsp; the court would not permit the plaintiff to unnecessarily protract&nbsp; the&nbsp; proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.\"</b></p><p><b>15.<span style=\"white-space:pre\">	</span>Therefore, in the light of the peculiar facts obtaining in the case at hand as narrated hereinabove and the judgments of the Apex Court in the afore- extracted cases, it cannot but be held that when a suit instituted by the plaintiffs was clearly abuse of process&nbsp; of the Court and bereft of any merit, the trial Court&nbsp; ought to have exercised its power under Order VII Rule&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11 CPC by allowing the application filed by the petitioner and rejecting the plaint.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">For the aforesaid reasons, I pass the following:</b><br></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Civil Revision Petition is allowed.</b><br></p><div><br></div>', '420fb6fd517b431ec50955803a7fc42c.jpg', '1190a73f7fa9c255919cf288500b0bf2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-23', 1, '', '', '2021-08-03 22:41:10', '2021-08-03 22:41:59'),
(942, 'FmDAm7v04SAGNeVHxsFVqXjFl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Insolvency and Bankruptcy Code, 2016. There is no bar in law to the amendment of pleadings in a petition under Section 7 or to the filing of additional documents. Supreme Court ', '<p><b>Dena Bank (now Bank of Baroda) vs C.Shivakumar Reddy and another </b></p><p><b>Civil Appeal 1650 of 2020 decided on 4 August 2021.</b></p><p><b>Justice Indira Banerjee and Justice V. Ramasubramanian </b></p><p><b>Judgment Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"https://main.sci.gov.in/supremecourt/2020/5402/5402_2020_40_1501_29049_Judgement_04-Aug-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/5402/5402_2020_40_1501_29049_Judgement_04-Aug-2021.pdf</a></b></p><p><b>144. There is no bar in law to the amendment of pleadings in an\r\napplication under Section 7 of the IBC, or to the filing of additional\r\ndocuments, apart from those initially filed along with application under\r\nSection 7 of the IBC in Form-1. In the absence of any express provision\r\nwhich either prohibits or sets a time limit for filing of additional documents, it cannot be said that the Adjudicating Authority committed\r\nany illegality or error in permitting the Appellant Bank to file additional\r\ndocuments. Needless however, to mention that depending on the facts\r\nand circumstances of the case, when there is inordinate delay, the\r\nAdjudicating Authority might, at its discretion, decline the request of an\r\napplicant to file additional pleadings and/or documents, and proceed to\r\npass a final order. In our considered view, the decision of the\r\nAdjudicating Authority to entertain and/or to allow the request of the\r\nAppellant Bank for the filing of additional documents with supporting\r\npleadings, and to consider such documents and pleadings did not call\r\nfor interference in appeal. </b><br></p>', '8dd00a096b6c5e4fda31a402a0ca6156.jpg', '01c2fe6a14117052221957de87f051d2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-04', 1, '', '', '2021-08-04 19:49:38', '2021-08-04 19:50:22'),
(943, 'vq3hDFT5MbBla2q9wuRcanPlG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Insecticides Act, 1968. Limitation for criminal prosecution commences from the date of receipt of first analysis report. Authorities cannot consider receipt of second or subsequent reports as the starting point. Supreme Court. ', '<p><b>M/s. Cheminova India Ltd and another vs State of Punjab and another </b></p><p><b>Criminal Appeal 749 of 2021 decided on 4 August 2021.</b></p><p><b>Justice Navin Sinha and Justice R. Subhash Reddy </b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/18254/18254_2020_39_1501_29045_Judgement_04-Aug-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/18254/18254_2020_39_1501_29045_Judgement_04-Aug-2021.pdf</a></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8. Having heard the learned counsel for the parties, we have </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">perused the impugned order and other material placed on record.</b><br></p><p><b>9. In view of the undisputed fact that after drawing the sample </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">from the dealer on 10.02.2011 report of analysis was received from </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Insecticide Testing Laboratory at Ludhiana on 14.03.2011, we are </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the firm view that the complaint filed is barred by limitation.  It is </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not   in   dispute   that   report   from   Insecticide   Testing Laboratory, </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Ludhiana was received by the Inspector on 14.03.2011.  Section 29 of </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Act deals with the ‘offences and punishment’.  The appellants are </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sought   to   be  prosecuted   on   the   ground   of   misbranding   of   the </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">insecticide,   i.e.,  Trizophos   40%   E.C.    It   is   the   allegation   in   the complaint   that   upon   analysis   of  the   sample,   same   was   found   to </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contain active ingredient to the extent of 34.70% only as against the </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">labelled declaration of 40%.  Thus, it is a case of ‘misbranding’ within </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the   meaning   of   Section   3(k)(i)   of   the   Act   and   selling   of   such </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">misbranded item is in violation of Sections 17, 18, and 33 punishable </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under Section 29 of the Act.  From a reading of Section 29, it is clear </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that the maximum punishment for such offence, if it is first offence, is </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">imprisonment for a term which may extend to two years or with fine </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which shall not be less than ten thousand rupees which may extend </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to fifty thousand rupees, or with both.  For a second and subsequent </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">offence, the punishment is imprisonment for a term which may extend </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to   three   years   or   with   fine   which   shall   not   be   less   than   fifteen </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">thousand rupees which may extend to seventy­five thousand rupees, </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">or with both.  Section 468 of Cr.PC prohibits taking cognizance of an </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">offence after the lapse of period of limitation.  As per sub­section (2)(c) </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">thereof,   the   period   of   limitation   is   three   years,   if   the   offence   is </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">punishable with imprisonment for a term exceeding one year but not </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">exceeding   three   years.  Section   469   of   Cr.PC   deals   with   the </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">‘commencement of the period of limitation’.  As per the said provision, </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the period of limitation, in relation to an offender, shall commence on </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the date of offence or where the commission of the offence was not <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">known to the person aggrieved by the offence or to any police officer,\r\nthe first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier.</span></b></p><p><b>10. In the present case, it is not in dispute, the complainant­ 2nd\r\nrespondent has received the report of analysis on 14.03.2011 from the\r\nInsecticide   Testing   Laboratory,   Ludhiana   and   the   complaint   was\r\nlodged on 25.03.2014 which is beyond a period of three years from\r\n14.03.2011.  The only submission of the learned counsel for the State\r\nis that further report from the Central Insecticide Testing Laboratory\r\nwas received on 09.12.2011 which is the conclusive evidence of the\r\nfacts, as such, the complaint is within the period of limitation.  We are\r\nnot convinced with such submission made by learned counsel for the\r\nState.  When it is clear from the language of Section 469, Cr.PC that\r\nthe period of limitation shall commence on the date of offence, there is\r\nno reason to seek computation of limitation only from the date of\r\nreceipt   of   report   of   the   Central   Insecticide   Testing   Laboratory,\r\nFaridabad.  As per the procedure prescribed under the Statute, i.e.,\r\nInsecticide Act, 1968 and the rules made thereunder, the Insecticide\r\nTesting Laboratory, Ludhiana was the competent authority to which\r\nthe sample was sent on 17.02.2011, after drawing on 10.02.2011, and\r\nthe report of analysis was received on 14.03.2011, as such the said date is said to be the crucial date for commencement of period of\r\nlimitation.  By virtue of the said report received on 14.03.2011 which\r\nstates that the active ingredient of the sample was only to the extent\r\n34.70% as against the labelled declaration of 40%, it is clear that it is\r\nthe   date   of   offence   allegedly   committed   by   the   accused.     Merely\r\nbecause a further request is made for sending the sample to the\r\nCentral Insecticide Testing Laboratory, as contemplated under Section\r\n24(4) of the Act, which report was received on 09.12.2011, receipt of\r\nsuch   analysis   report   on   09.12.2011   cannot   be   the   basis   for\r\ncommencement of limitation.  The report of analysis received from the\r\nInsecticide   Testing   Laboratory,   Ludhiana   on   14.03.2011   itself\r\nindicates misbranding, as stated in the complaint, thus, the period of\r\nlimitation within the meaning of Section 469, Cr.PC commences from\r\n14.03.2011 only.  In that view of the matter, we are clearly of the view\r\nthat   the   complaint   filed   is   barred   by   limitation   and   allowing   the\r\nproceedings to go on, on such complaint, which is ex facie barred by\r\nlimitation is nothing but amounts to abuse of process of law.  Though\r\nthe   learned   counsel   has   also   raised   other   grounds   in   support   of\r\nquashing,   as   we   are   persuaded   to   accept   his   submission   that\r\ncomplaint filed is barred by limitation, it is not necessary to deal with\r\nsuch other grounds raised.</b></p><p><b>11. For the aforesaid reasons, this criminal appeal is allowed.\r\nThe impugned order dated 12.05.2020 passed by the High Court of\r\nPunjab & Haryana at Chandigarh in CRM­M No.1162­2020 (O&M) is\r\nset aside.  Consequently, Complaint No.26 dated 25.03.2014 filed by\r\nthe second respondent before the Chief Judicial Magistrate, Amritsar\r\nstands quashed. </b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></p>', '45db1f9a5998d2426f2736ec3eff55c8.jpeg', 'ca26d84850f673089fb136523a70dcd5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-04', 1, '', '', '2021-08-04 23:06:06', '2021-08-04 23:07:38'),
(944, 'C2SyPNn8BqWwgcPDFS3FcMJtc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court quashes imposition of Ground rent, License fee, Scrutiny fee and Lake Rejuvenation fee by Bruhat Bangalore Mahanagara Palike as without jurisdiction and ultravires. ', '<p class=\"MsoNormal\" style=\"text-align:justify\"><span style=\"text-align: left;\"><b>Sunderam Shetty and others vs State of Karnataka and others </b></span></p><p class=\"MsoNormal\" style=\"text-align:justify\"><span style=\"text-align: left;\"><b>Writ Petition 4601 of 2020 and connected matters decided on 4 August 2021</b></span></p><p class=\"MsoNormal\" style=\"text-align:justify\"><span style=\"text-align: left; background-color: rgb(255, 255, 0);\"><b>Judgment to be uploaded </b></span></p><p class=\"MsoNormal\" style=\"text-align:justify\"><span style=\"text-align: left; background-color: rgb(255, 255, 0);\"><b>Written submission of the counsel enclosed in PDF</b></span></p><p><b>In a batch of Writ Petitions before the Karnataka High Court, several Petitioners had challenged the following financial imposts imposed by the BBMP:</b></p><p><b>Ground rent</b></p><p><b>License fee</b></p><p><b>Scrutiny Fee</b></p><p><b>Lake Rejuvenation Fee</b></p><p><b>The levies were being demanded for grant of plan and license to erect buildings, occupancy certificate, and commencement certificate by BBMP.</b></p><p><b>The main thrust of the challenge was as follows:</b></p><p><b>1.<span style=\"white-space:pre\">	</span>The levies are not sanctioned by the KMC Act</b></p><p><b>2.<span style=\"white-space:pre\">	</span>The Bye-laws framed under the KMC Act under which the levies were imposed are ultra vires the parent act i.e., the KMC Act</b></p><p><b>3.<span style=\"white-space:pre\">	</span>The levies violate Articles 265 and 243X of the Constitution since they lack legislative sanction</b></p><p><b>4.<span style=\"white-space:pre\">	</span>The rates of the levies cannot be fixed by the Commissioner</b></p><p><b>5.<span style=\"white-space:pre\">	</span>The rates of the levies cannot be fixed under a Circular</b></p><p><b>6.<span style=\"white-space:pre\">	</span>The rates of the levies cannot be linked to market value of the property </b></p><p><b>A single judge bench of Hon\'ble Mr. Justice M Nagaprasanna has quashed the above levies, bye laws, and circulars and ordered refund of the levies collected. </b></p><div><br></div>', 'ddaf8a8b7969ec89edeaa108797c4e67.jpg', '8670ba2b48e8fed962e280cc423fe401.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-04', 1, '', '', '2021-08-04 23:48:49', '2021-08-04 23:52:12'),
(945, 'Q3Pc71uD26fV2SBTVfIWkLkXj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Offences by Companies. Criminal prosecution against Managing Director of a company is NOT maintainable when the company has nominated another person as responsible for conduct of business of the Company. Supreme Court.', '<p><b>M/s. Cheminova India Ltd and another vs State of Punjab and another </b></p><p><b>Criminal Appeal 749 of 2021 decided on 4 August 2021.</b></p><p><b>Justice Navin Sinha and Justice R. Subhash Reddy </b></p><p></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/18254/18254_2020_39_1501_29045_Judgement_04-Aug-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/18254/18254_2020_39_1501_29045_Judgement_04-Aug-2021.pdf</a></b></p><p><b>8. Having heard the learned Counsels on both sides,\r\nwe have perused the impugned Order and other material\r\nplaced on record.</b></p><p><b>9. Section 33 of the Act deals with ‘offences by\r\ncompanies’. A reading of Section 33(1) of the Act,\r\nmakes it clear that whenever an offence under this\r\nAct has been committed by a company, every person who\r\nat the time the offence was committed, was in charge\r\nof, or was responsible to the company for the conduct\r\nof the business of, the company, as well as the\r\ncompany, shall be deemed to be guilty of the offence <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and shall be liable to be proceeded against and\r\npunished accordingly. In the case on hand, it is not\r\nin dispute that on behalf of the 1st Appellant –\r\nCompany, 2nd Appellant – Managing Director has\r\nfurnished an undertaking dated 22.01.2013, indicating\r\nthat Shri Madhukar R. Gite, Manager of the Company,\r\nhas been nominated in the resolution passed by the\r\nCompany on 28.12.2012 to be in charge of and\r\nresponsible to the said Company, to maintain the\r\nquality of the pesticides manufactured by the said\r\nCompany and he was authorized to exercise all such\r\npowers and to take all such steps, as may be\r\nnecessary or expedient to prevent the commission of\r\nany offence under the Act. Filing of such undertaking\r\nwith the respondent is not disputed. Even, at Para\r\n5.10 in the counter affidavit filed before this\r\nCourt, it is pleaded by the Respondents that by\r\nappointing persons responsible for affairs of the\r\nCompany, quality control, etc., 2nd Appellant –\r\nManaging Director cannot escape his liability from\r\noffences committed by 1st Appellant – Company. In view\r\nof the specific provision in the Act dealing with the\r\noffences by companies, which fixes the responsibility  </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and the responsible person of the Company for conduct\r\nof its business, by making bald and vague\r\nallegations, 2nd Appellant – Managing Director cannot\r\nbe prosecuted on vague allegation that he being the\r\nManaging Director of the 1st Appellant – Company, is\r\noverall responsible person for the conduct of the\r\nbusiness of the Company and of quality control, etc.\r\nIn the instant case, the Company has passed a\r\nresolution, fixing responsibility of one of the\r\nManagers namely Mr. Madhukar R. Gite by way of a\r\nresolution and the same was furnished to the\r\nrespondents by the 2nd Appellant in shape of an\r\nundertaking on 22.01.2013. When furnishing of such\r\nundertaking fixing the responsibility of the quality\r\ncontrol of the products is not in dispute, there is\r\nno reason or justification for prosecuting the 2nd\r\nAppellant – Managing Director, on the vague and\r\nspacious plea that he was the Managing Director of\r\nthe Company at the relevant time. A reading of\r\nSection 33 of the Act also makes it clear that only\r\nresponsible person of the Company, as well as the\r\nCompany alone shall be deemed to be guilty of the\r\noffence and shall be liable to be proceeded against. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Though, the Managing Director is overall incharge of\r\nthe affairs of the company, whether such officer is\r\nto be prosecuted or not, depends on the facts and\r\ncircumstances of each case and the relevant\r\nprovisions of law. Having regard to specific\r\nprovision under Section 33 of the Act, and the\r\nundertaking filed in the present case, respondent\r\ncannot prosecute the 2nd Appellant herein. Thus, we\r\nfind force in the contention of Mr. Sidharth Luthra,\r\nlearned Senior Counsel, that allowing the prosecution\r\nagainst 2nd Appellant – Managing Director is nothing\r\nbut, abuse of the process of law. At the same time,\r\nwe do not find any ground at this stage to quash the\r\nproceedings against the 1st Appellant – Company. </span></b></p><p><br></p>', 'edc854a6ee9098d6cfa9fa36525f1696.JPG', 'dd3667591d716bcb280137d9cded1617.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-04', 1, '', '', '2021-08-05 00:28:15', '2021-08-05 00:29:29'),
(946, 'wGN6QXinMIg1tr7wMgAJskpMZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Respondent in whose favour a court has decreed the suit can challenge an adverse finding of the trial court before the appellate court without filing cross objection. Supreme Court. ', '<p><b>Shri Saurav Jain & anr vs <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">M/s A. B. P. Design & anr.</span></b></p><p><b>Civil Appeal No. 4448 of 2021\r\ndecided on 5 August 2021. <br></b></p><p><b>Justice Dr Dhananjaya Y Chandrachud and Justice M R Shah</b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2018/26184/26184_2018_35_1501_29054_Judgement_05-Aug-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/26184/26184_2018_35_1501_29054_Judgement_05-Aug-2021.pdf</a></b></p><p><b>24. Order XLI Rule 22(2) of the CPC states that a “cross-objection shall be filed in\r\nthe form of a memorandum, and the provisions of Rule 1, so far as they relate to the\r\nform and contents of the memorandum of appeal, shall apply thereto.” This Court in\r\nS. Nazeer Ahmed v. State Bank of Mysore (2007) 11 SCC 75 elaborated on the form of objections\r\nmade under Order XLI Rule 22 CPC. In Nazeer Ahmed (supra), the respondent\r\nhad filed a suit for enforcement of an equitable mortgage. In deciding the suit, the\r\nTrial Court rejected the argument of the appellant-defendant and held that the suit\r\nwas not barred by Order II Rule 2 of the CPC. However, the court dismissed the suit\r\non grounds of limitation. On an appeal filed by the respondent before the High Court,\r\nthe High Court observed that although the suit was barred by Order II Rule 2 of the\r\nCPC, the appellant had not challenged this finding of the Trial Court by filing a\r\nmemorandum of cross-objection. Thus, the High Court granted the respondent a\r\ndecree against the appellant. When this finding of the High Court was assailed before this Court, Justice P.K Balasubramanyam held that a memorandum of crossobjection needs to be filed while taking recourse to Order XLI Rule 22 only when the\r\nrespondent claims a relief that had been rejected by the trial court or seeks an\r\nadditional relief apart from that provided by the trial court. The court held that a\r\nmemorandum of objection need not be filed when the appellant only assailed a\r\n‘finding’ of the lower court:</b></p><p> <b><i>“7. The High Court, in our view, was clearly in error in holding that\r\nthe appellant not having filed a memorandum of cross-objections in\r\nterms of Order 41 Rule 22 of the Code, could not challenge the\r\nfinding of the trial court that the suit was not barred by Order 2\r\nRule 2 of the Code. The respondent in an appeal is entitled to\r\nsupport the decree of the trial court even by challenging any\r\nof the findings that might have been rendered by the trial\r\ncourt against himself. For supporting the decree passed by\r\nthe trial court, it is not necessary for a respondent in the\r\nappeal, to file a memorandum of cross-objections challenging\r\na particular finding that is rendered by the trial court against\r\nhim when the ultimate decree itself is in his favour. A\r\nmemorandum of cross-objections is needed only if the\r\nrespondent claims any relief which had been negatived to him\r\nby the trial court and in addition to what he has already been\r\ngiven by the decree under challenge. We have therefore no\r\nhesitation in accepting the submission of the learned counsel\r\nfor the appellant that the High Court was in error in\r\nproceeding on the basis that the appellant not having filed a\r\nmemorandum of cross-objections, was not entitled to canvas\r\nthe correctness of the finding on the bar of Order 2 Rule 2\r\nrendered by the trial court.”</i></b></p><p><b>25. It is apparent from the amended provisions of Order XLI Rule 22 CPC and the\r\nabove authorities that there are two changes that were brought by the 1976\r\namendment. First, the scope of filing of a cross-objection was enhanced\r\nsubstantively to include objections against ‘findings’ of the lower court; second, different forms of raising cross-objections were recognised. The amendment sought\r\nto introduce different forms of cross-objection for assailing the findings and decrees\r\nsince the amendment separates the phrase “but may also state that the finding\r\nagainst him in the Court below in respect of any issue ought to have been in his\r\nfavour” from “may also take any cross-objection to the decree” with a semi colon.\r\nTherefore, the two parts of the sentence must be read disjunctively. Only when a\r\npart of the decree has been assailed by the respondent, should a memorandum of\r\ncross-objection be filed. Otherwise, it is sufficient to raise a challenge to an adverse\r\nfinding of the court of first instance before the appellate court without a cross\r\nobjection.</b></p><p><b>26. The applicability of the principle in Order XLI Rule 22 CPC to proceedings\r\nbefore this Court under Article 136 of the Constitution was considered by a\r\nConstitution Bench in the decision in Ramanbhai Ashabhai Patel v. Dabhi\r\nAjitkumar Fulsinji AIR 1965 SC 669. Justice JR Mudholkar overruled the judgment of the three\r\njudge bench in Vashist Narain Sharma v. Dev Chandra (1955) 1 SCR 509 which had rejected the\r\nargument of the respondent that a party could raise arguments on the ‘findings’ that\r\nwere against him, while supporting the judgment. It was held that Order XLI Rule 22\r\nof the CPC does not have application to an appeal under Article 136. In Ramanbhai\r\nAshabhai Patel (supra), this Court held that the provisions of Order XLI Rule 22 of\r\nthe CPC are not applicable to the Supreme Court and the rules of the Supreme Court do not provide for any analogous provisions. However, it was held that this\r\ndeficiency must be supplemented by drawing from CPC.<br></b></p><p><b>27. On a perusal of the above authorities, it is evident that the principle stipulated\r\nin Order XLI Rule 22 of CPC can be applied to petitions under Article 136 of the\r\nConstitution because of this Court’s wide powers to do justice under Article 142 of\r\nthe Constitution. Since the principle in Order XLI Rule 22 of the CPC furthers the\r\ncause of justice by providing the party other than the ‘aggrieved party’ to raise any\r\nadverse findings against them, this Court can draw colour from Order XLI Rule 22\r\nCPC and permit objections to findings. \r\n<i><br></i></b></p><p><b><i><br></i></b></p><p><b><i><br></i></b><br></p>', '9e929898d81d95f681a14f3f532d17e4.JPG', '603b2ec2a512d011f351e8691677cc6f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-05', 1, '', '', '2021-08-06 18:22:07', '2021-08-06 18:23:13'),
(947, 'dHXWmFiF3MgFiPBsH3gzScL6N', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act, 1996. Termination of agreement to sell by the vendor constitutes arbitral dispute under Section 11(6) of the Act. Karnataka High Court.  ', '<p><b>Maya Tradelinks vs Shri. Kirti Kumar Kabra</b></p><p><b>Civil Miscellaneous Petition&nbsp; 152 of 2021</b></p><p><b>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">h<a href=\"ttp://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/399702/1/CMP152-21-05-08-2021.pdf\" target=\"_blank\">ttp://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/399702/1/CMP152-21-05-08-2021.pdf</a></b></p><p><b>Petitioner is knocking at the doors of writ court seeking an order for the appointment of an Arbitrator for adjudging the alleged dispute in question; after service of notice, the respondents having entered appearance through their&nbsp; counsel, resist the Petition contending there is no dispute at&nbsp; all and therefore, appointment cannot be made; both&nbsp; the&nbsp; sides have relied upon an avalanche of decisions&nbsp;</b></p><p><b>2. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court is inclined to appoint an Arbitrator for the following reasons:</b></p><p><b>(a) The vehement contention of learned Sr. Advocate Mr.Dhananjay Vidyapati Joshi that there exists an agreement 24.11.2017 between the parties and para 8 is incorporated as an arbitration clause, is prima facie substantiated vide Annexure-B; the petitioner had sent a legal notice dated 2.1.2021 mentioning about the dispute and calling upon the respondents to come for arbitration; paragraphs 10 &amp; 11 of&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the said notice specifically mention about the acts allegedly done by the petitioner pursuant to the agreement in question.</b></p><p><b>(b) The respondents vide reply dated 30.01.2021 at para 7 have mentioned as to what all has been done with the scheduled properties and that despite repeated request, the petitioner did not come forward and make balance payment of certain sum; they have also stated that had the&nbsp; petitioner&nbsp; done his part of the obligation, they would have registered the conveyance in his favour; the respondents have specifically taken up a contention that the petitioner was not ready and willing to register the conveyance; at para 9 of this reply notice, the respondents have terminated both the agreements dated 17.7.2014 and 24.11.2017; fairly enough,&nbsp; at&nbsp; para&nbsp; 10,&nbsp; the respondents have stated about the refundability of the amount with 9 %; they have also called upon the petitioner to return all the original documents within fifteen days; that being the position, it cannot be gainsaid that there does not exist any dispute between the parties.</b></p><p><b><br></b></p><p><br></p>', '575783b5690584f348f65346864542e9.jpg', '382a2d5683e2c4321e6692b5c60bbf42.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-05', 1, '', '', '2021-08-06 23:51:17', '2021-08-06 23:51:17'),
(948, 'aaPJq99OPjPPW9HNzEf1N2WPq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'Quasi judicial powers cannot be bartered away\'. BBMP Commissioner can NOT delegate his power to hear and decide quasi-judicial cases to any other officer. Karnataka High Court.  ', '<p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Chitrakala vs The State of Karnataka and others </b><br></p><p><b>Writ Petition 14459 of 2019 decided on 28 July 2021. </b></p><p><b>Judgment Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/399808/1/WP14459-19-28-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/399808/1/WP14459-19-28-07-2021.pdf</a></b></p><p><b>This writ petition raises a rudimentary principle of law, ‘he who decides, must hear, by calling in question an order dated 16.03.2019, bearing No.PSR(4)/11664/2018- 19, passed by the Commissioner of the Bruhat Bengaluru Mahanagara Palike (hereinafter referred to as ‘the BBMP’ for short), declining to accept the claim of the petitioner and directing that the activity  of the petitioner performed in her residential premises cannot be allowed to be continued.</b></p><p><b>3....After the matter was heard by the Head of the Legal Cell, the Commissioner passed an order on 16.03.2019, declining to permit the activity that the petitioner was conducting in her residential premises.  It is this order that  is called in this writ petition before this Court.</b></p><p><b>7..The issue is not with regard to the activity carried on by the petitioner that has to be examined at this juncture by this Court but, could the Commissioner have passed the order, without hearing the parties.</b></p><p><b>8. Proceedings pursuant to the direction of this Court is admittedly initiated and heard by the Head of Legal Cell and the Commissioner who did not hear the grievance or the matter, as directed by this Court, has passed the impugned order.  Therefore, here is a case where the Commissioner who did not hear the matter has decided it. It would fall foul of the  rudimentary principle of ‘he who decides must hear’. The issue with regard to the said principle of ‘he who decides must hear’ has cropped up close to scores years ago by the  Apex Court in the case of Gullapalli Nageswara Rao vs A.P. State Road Transport Corporation </b><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> </span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">AIR 1959 SC 308 </span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">....It is also apposite to refer to a judgment of  the  Division  Bench of the Kerala High Court in the case of Union of India vs P. Andrew </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1996 SCC Online Ker 6.</b></p><p><b>9...Manifold powers, duties and obligations are cast upon the Commissioner in terms of the Act, a few of them are quasi judicial in nature as the Commissioner is empowered to adjudicate upon the rights of the parties. Adjudication upon the rights of the parties cannot but  be a power which is quasi judicial in nature. Therefore, quasi judicial power will have to be exercised only by such officer who is empowered to exercise and not by any other authority. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">..Section 66 of the Act, in my considered view, can only be a delegation of his ordinary powers, duties and functions and not delegating quasi judicial powers. Quasi judicial powers cannot be bartered away contrary to duties and obligations imposed upon the Commissioner in terms of the statute.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The writ petition is allowed in part.The matter is remitted back to the hands of the Commissioner to hear the parties as directed by this Court in writ petition No.40663/2018 dated 11.02.2019 and pass appropriate orders in accordance with law.</b><br></p><p><br></p>', '977f805a5b01eae4b4c185a1a1953497.jpg', '714577ed9983dffca287ffe5dc48ecdc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-28', 1, '', '', '2021-08-08 17:06:31', '2021-08-08 17:07:46');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(949, 'b9HdtNrnogVsayn3KenfJmJOZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'Even a rupee cannot be taken from a citizen as fee except in accordance with law\' Karnataka High Court while quashing imposition of Ground Rent, Licence Fee, Building Licence Fee, Scrutiny Fee and Security Deposit by BBMP.  ', '<p><b>Sunderam Shetty and others vs State of Karnataka and others </b></p><p><b>Writ Petition 4601 of 2020 and connected matters decided on 4 August 2021</b></p><p><b>Judgment Link: <a href=\"https://karnatakajudiciary.kar.nic.in/judgements/W.P.4601.2020_09082021.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/W.P.4601.2020_09082021.pdf</a></b></p><p><b>21...The Apex Court in the afore-said judgment (Ahmedabad Urban Development Authority v.\r\nSharadkumar Jayantikumar Pasawalla (1992) 3 SCC 285 has\r\nconsidered manifold circumstances which would\r\ndistinguish a tax from a fee and has also held that there\r\ncan be no implied power in fiscal matters. The power to\r\nimpose must be specific and such imposition must be\r\nwithin the parameters of the authority to impose. There\r\ncannot be incidental or ancillary power in the matter of\r\nexercise of fiscal power. </b></p><p><b>22. On an analysis of the afore-extracted\r\njudgments of the Apex Court, it would become\r\nunmistakably clear that certain services that are\r\nrendered to the benefit of the individual upon whom the\r\nfee is charged such a fee can be charged, failing which,\r\nit would take the character of tax. “Even a rupee\r\ncannot be taken from a citizen as fee except in\r\naccordance with law.” It is on the bedrock of the\r\nprinciples enunciated by the Apex Court, the impugned\r\nimposts/fee are required to be considered. Therefore,\r\neach of the impugned levy is considered separately.</b></p><p><b>23...The levy of fee under the Act can only be on matters\r\nallowed by the Act. What is permitted under the Act is found only in sub-section 20(b) of Section 423 (Supra),\r\nwhich empowers collection or levy of fee for use of such\r\nburial, burning grounds and crematoria that are\r\nmaintained by the Corporation. In no other section of\r\nthe Act the Corporation is empowered to levy fee.\r\nSection 443 of the Act deals with ‘General provisions\r\nregarding licences, registrations and permissions’. Here\r\nagain there is no provision to charge fee.  </b></p><p><b>25.2. Ground rent was so demanded is being\r\ndemanded apart from it having no backing in the\r\nstatute with blatant non-application of mind as the\r\npetitioners in most of the petitions who have their own\r\nspace in the construction area to store or stock\r\nmaterials for construction would not be using pubic\r\nroad or according to the BBMP, the roads maintained by\r\nthe BBMP. Those who are stocking construction materials in their own land, without using public\r\nproperty/road/pavement are also made to pay ground\r\nrent as it is made a condition precedent for either\r\nlicence, occupancy certificate or a plan sanction.\r\nTherefore, an individual house owner using the road for\r\nstoring construction materials and the owner of multistoried buildings/apartments storing building materials\r\nin their own land for construction cannot be treated\r\nalike for the purpose of demand of ground rent. There\r\ncannot be a better example of non-application of mind\r\nin raising the demand under the impugned levies. </b></p><p><b>25.3. Payment of ground rent was accepted and\r\npaid by citizens hitherto. What became agonizing was\r\nthe circular dated 04.09.2015 whereby a revised ground\r\nrent was demanded by linking to the guidance value. </b></p><p><b>30. Therefore, there is no power under Act to\r\nimpose the impugned levies i.e., ground rent, licence\r\nfee, building licence fee, scrutiny fee and security\r\ndeposit. It is trite that fee can be imposed only if there\r\nis quid pro quo. Quid pro quo in legal parlance is that\r\n’fee’ that can be imposed for a service that is rendered.\r\nThe principle of quid pro quo or a fee chargeable for a\r\nservice rendered as considered by the Apex Court\r\n(supra), wherein the Apex Court has held that there\r\nshould be reasonable co-relation for\r\nimposition/collection of a fee, apart from the fact that it\r\nshould be with authority of law. </b></p><p><b>33. Therefore, the synthesis of the interpretation\r\nof a tax or a fee that can be levied by a Corporation\r\nupon its citizens as considered in the judgments (supra),\r\nwould lead to an unmistakable conclusion that a fee is a\r\ncharge for special service rendered to individuals by a\r\ngovernmental agency; the amount of fee levied is\r\nsupposed to be based on expenses incurred by\r\nGovernment in rendering service. Fee is uniform and no\r\naccount is taken of payers’ capacity. Imposition of fee\r\ncan only be as a quid pro quo. The licence fee that is\r\npayable to the BBMP is for approving construction plan\r\nand issuing licence. An applicant for approval of a plan\r\nwould submit a blue print of a plan prepared at his own\r\nexpense along with no objection and other supporting documents as prescribed in law and the building will\r\nhave to be constructed only upon a licence being given\r\nand plan being approved. Apart from the fact that there\r\nis no statutory backing for such a fee, the levy of such\r\nfee is even otherwise illegal. Scrutiny fee is again\r\ncharged for scrutinizing documents submitted for\r\nissuance of a licence. It is co-terminus with licence fee\r\nand therefore, would lose its legs to stand for the very\r\nsame reason as that of licence fee. </b></p><p><b>35. It is to be noticed that Lake Rejuvenation Fee\r\nis not imposed in terms of the Act, but on the strength\r\nof a circular dated 27.01.2017. The Act itself not\r\nauthorizing charge of any fee of the kind that is charged\r\nby the BBMP, the circular can hardly generate power to\r\nimpose such fee. It is also to be noticed that BBMP has\r\nmade the levy of Lake Rejuvenation Fee applicable to all\r\napplications coming in for a building licence and\r\nsanction of plan in terms of their circular dated\r\n30.03.2017. Therefore, both the circulars of the Government and the BBMP would on the face of it\r\nbecome unenforceable as they seek to impose certain\r\nimpost without any statutory backing for such\r\nimposition. </b></p><p><b>Therefore, in the light of the aforesaid judgment, it is for\r\nthe legislature to bring about appropriate law to\r\ndemand any kind of fee that is now demanded. </b></p><p><b>Ergo, on an anatomy of the plethora of judgments of the\r\nApex Court, this Court and other constitutional Courts qua\r\nthe facts obtaining in the case at hand, the impugned\r\ndemands made by the BBMP to the extent considered\r\nwould all be unenforceable in the existing incarnation as\r\nthey are ultravires the Act. As a logical sequitur, I hold,\r\nthat the imposition of the impugned imposts is\r\nimpossible to be countenanced. </b></p><p><b>The bye-laws under which Ground Rent,\r\nLicence Fee, Building Licence Fee, Scrutiny\r\nFee, Security Deposit are all held ultravires\r\nthe Act and are resultantly rendered\r\nunenforceable.  </b><br></p>', 'e0f7ea447f6776b50a6e2035f767da11.jpg', '30ed3c2f0a7c11db286597f61b049d7e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-04', 1, '', '', '2021-08-10 00:37:36', '2021-08-10 00:38:30'),
(950, 'XIgZVFf4o3d3jJEbmUyxY33lS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Unlike access to justice, forum convenience is not a fundamental right. Only the Chief Justice of High Court has power to allocate work to puisne judges of respective benches of High Court. Karnataka High Court clarifies.', '<p><b>Karnataka Power Corporation Limited vs Gopalakrishna and others </b></p><p><b>Writ Petition 7320 of 2017 decided on 6 August 2021.</b></p><p><b>Justice Satish Chandra Sharma, Justice R. Devdas and Justice Sunil Dutt Yadav. </b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/400132/1/WP7320-17-06-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/400132/1/WP7320-17-06-08-2021.pdf</a></b></p><p><b>11. The territorial jurisdiction of the Benches is well defined. The judgment which has been referred by the learned Single Judge in his order dated 11.2.2021 reveals that  the  Division Bench of this Court in the case of Abdul Wajid (supra) held that neither the Chief Justice nor the Full Bench of the High Court has the jurisdiction to decide whether any particular Bench  in the High Court of Karnataka has the jurisdiction to entertain   the writ petition or not and the issue has to be decided in an individual case by the Judge or the Judges hearing the matter and therefore, the High Court Registry cannot raise an objection in respect of the maintainability of a case on the ground of territorial jurisdiction.</b></p><p><b>12. Learned Amicus Curiae has placed reliance upon a judgment delivered in the case of State of Rajasthan v.  Prakash Chand,  reported in (1998) 1 SCC 1.  Paragraphs 7, 8,  9, 10 and 59 of the judgment reads as under; ....The aforesaid judgment defines the powers of the Chief Justice and the Chief Justice is the master of the roster.</b></p><p><b>15. The aforesaid Rule makes it very clear that Constitution of Benches and allotment of judicial work/distribution of judicial work has to be done only and only by Hon\'ble The Chief Justice. The same view has been expressed by the Hon\'ble Supreme Court in the case of State of Rajasthan v. Prakash Chand </b></p><p><b>16. In the light of the aforesaid, it is crystal clear that it is only Hon\'ble The Chief Justice, who can allocate the work to a particular judge, issue a roster, transfer a case from one judge to another judge, pass an order in respect of transfer of a case from one Bench to another Bench and by no stretch of imagination a puisne judge can transfer a case from one Bench to  another Bench. Every judge of the High Court does not have the power, whether he is sitting singly or whether it is a Division Bench or whether it is a Full Bench, to transfer a case from one Bench to another Bench or from main Seat to Benches or vice versa.</b></p><p><b>18. It is a settled proposition of law that \"forum convenience\" is not a fundamental right similar to \'access to justice\'. \'Access to Justice\' is recognized as a fundamental right (see Manohar Joshi v. State of Maharashtra, reported in (2012) 3 SCC 619; Roger Mathew v. South Indian Bank Limited, reported   in 2020 6 SCC 1). However, \'forum convenience\' cannot  be claimed as fundamental right and the right to choose jurisdiction  of the court is again subject to the powers of the Chief Justice as discussed above. Forum convenience cannot become \'forum shopping\'. The Hon\'ble Supreme Court in the case of Ambica Industries v. CCE, reported in (2007) 6 SCC 769, had an occasion to consider similar issue. </b></p><p><b>19. It may be noted that \'forum convenience\' is a double edged sword. It applies to both the petitioner/appellant and respondent. If a litigant from Kalaburagi approaches the Principal Seat at Bengaluru, he drags even the private respondents to the Principal Seat, their inconvenience notwithstanding.  There may   be cases where the same judgment or order is challenged by both the parties before the High Court. In such an eventuality, if the judgment of this High Court in Abdul Wajid\'s case (supra) is accepted, one party can file appeal in Kalaburagi Bench and the other at the Principal Seat. Because of this, in the words of the Hon\'ble Supreme Court, \"some sort of judicial anarchy shall come into play\".</b></p><p><b>20. In the considered opinion of this Court, merely  because it was convenient for the petitioner to file a petition at   the Principal Seat the petition at the Principal Seat was not maintainable on account of the territorial jurisdiction, otherwise, people will start forum shopping/forum hunting while filing cases before the Principal Seat or before the Benches keeping in view their comfort level as well as the other factors.</b></p><p><b>21. Resultantly, this Court is of the opinion that the judgment delivered in the case of Abdul Wajid (supra), deserves to be clarified. Every judge of the High Court, keeping in view the judgment delivered by the Hon\'ble Supreme Court in the case of State of Rajasthan v. Prakash Chand (supra), does not enjoy the power to transfer cases from one Bench to another Bench or from Principal Seat to Benches and vice versa.</b></p><p><b>The law laid down in Abdul Wajid\'s case (supra), treating each and every judge of the High Court to transfer a case warrants interference. The Registry can always raise an objection regarding the maintainability of a case if it is filed at Principal Seat/Benches not having territorial jurisdiction and the learned Single Judge before whom the matter is placed shall certainly be free to pass an order in respect of jurisdiction keeping in view the notifications relating to jurisdiction in accordance with law. Therefore,  in  the considered opinion of this Court, Kalaburagi Bench, keeping in  view the notifications issued, which have been </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">referred to in earlier part of the order,  is having jurisdiction only  in respect of Kalaburgi, Bidar, Vijayapura, Raichur and Yadgir and therefore, the office can raise an objection in respect of the jurisdiction and the learned Judge, before whom the matter is placed, shall certainly be free to pass an order in respect of the jurisdiction keeping in view the notifications relating to jurisdiction in accordance with law.</b></p><p><b>26. The issues are answered accordingly and the matter  be placed before the learned Single Judge, Kalaburagi Bench for further orders in accordance with law.</b></p><p><b>27. This Court also appreciates the assistance provided in the matter by learned counsel Shri S.Basavaraj.</b></p><div><br></div>', '67a5f423462fac556d2195874ab190b9.JPG', '773b997e9ec4137281561763eadffcb8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-06', 1, '', '', '2021-08-10 01:38:07', '2021-08-10 01:39:45'),
(951, 'aaooLnyo6qqiK1wrTsmepGrTD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Order 7 rule 11. Plaint can NOT be rejected on the ground of res judicata. The question of res judicata can be tried as a preliminary issue. Supreme Court. ', '<p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Srihari Hanumandas Totala vs <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Hemant Vithal Kamat & Ors</span></span><br></b></p><p><b>Civil Appeal No 4665 2021\r\ndecided on 9 August 2021</b></p><p><b>Dr Dhananjaya Y Chandrachud and Justice <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">MR Shah</span><br></b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/4370/4370_2021_35_1501_29116_Judgement_09-Aug-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/4370/4370_2021_35_1501_29116_Judgement_09-Aug-2021.pdf</a></b></p><p><b>17 Section 11 of the CPC enunciates the rule of res judicata : a court shall not\r\ntry any suit or issue in which the matter that is directly in issue has been directly or\r\nindirectly heard and decided in a ‘former suit’. Therefore, for the purpose of\r\nadjudicating on the issue of res judicata it is necessary that the same issue (that is\r\nraised in the suit) has been adjudicated in the former suit. <br></b></p><p><b><i>Case laws discussed. </i></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20 On a perusal of the above authorities, the guiding principles for deciding an\r\napplication under Order 7 Rule 11(d) can be summarized as follows:</span> </b></p><p><b>(i) To reject a plaint on the ground that the suit is barred by any law, only the\r\naverments in the plaint will have to be referred to;\r\n</b></p><p><b>(ii) The defense made by the defendant in the suit must not be considered while\r\ndeciding the merits of the application;\r\n(iii) To determine whether a suit is barred by res judicata, it is necessary that (i)\r\nthe ‘previous suit’ is decided, (ii) the issues in the subsequent suit were\r\ndirectly and substantially in issue in the former suit; </b></p><p><b>(iii) the former suit was\r\nbetween the same parties or parties through whom they claim, litigating\r\nunder the same title; and (iv) that these issues were adjudicated and finally\r\ndecided by a court competent to try the subsequent suit; and</b></p><p><b>(iv) Since an adjudication of the plea of res judicata requires consideration of the\r\npleadings, issues and decision in the ‘previous suit’, such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the\r\nplaint will have to be perused.<br></b></p><p><b>22 For the above reasons, we hold that the plaint was not liable to be rejected\r\nunder Order 7 Rule 11(d) and affirm the findings of the Trial Court and the High\r\nCourt. We clarify however, that we have expressed no opinion on whether the\r\nsubsequent suit is barred by the principles of res judicata<br></b><br></p>', 'bec8c4f3acc869a25a3ab7b858ad8585.jpg', 'ac873b4a2521ba1dba28e7f49193a015.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-09', 1, '', '', '2021-08-10 03:10:15', '2021-08-10 03:16:09'),
(952, 'd0X2XjoAT0FZy9dBVCr00kYdK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land Acquisition. Challenge to land acquisition can be rejected by courts on the ground constructive resjudicata and res judicata. Issue regarding fraud already adjudicated binds subsequent proceedings. Karnataka High Court. ', '<p><b>N. Ramaraju and others vs The Principal Secretary and others.&nbsp;</b></p><p><b>Writ Appeal 17016 of 2011 and connected matters decided on 2 August 2021.</b></p><p><b>Justice Alok Aradhe and Justice Hemant Chandangoudar</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/400120/1/WA17016-11-02-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/400120/1/WA17016-11-02-08-2021.pdf</a></b></p><p><b>I. Whether challenge to land acquisition proceeding is barred by constructive res judicata and res judicata?</b></p><p><b>A. Two principles namely (i) that finality should attach to binding decisions of Courts and (ii) that individuals should not be vexed twice over the same kind of litigation, have been held to form the foundation of the general rule of res judicata. The issue whether&nbsp; principles of res judicata apply to writ proceeding is no longer res integra and has been answered in affirmative by the Constitution Bench of the Supreme Court in \'DARYAO V. STATE OF U.P\' AIR 1961 SC 1457, \'VIRUDHUNAGAR STEEL ROLLING MILLS LTD V. GOVERNMENT OF MADRAS\' AIR 1968 SC 1196 AND \'SHANKAR COOPERATIVE HOUSING SOCIETY&nbsp; LTD.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">V. M. PRABHAKAR AND OTHERS\', (2011) 5 SCC 607. Similarly, the principles of constructive res judicata have been made applicable to writ proceedings [See: \'DIRECT RECRUIT CLASS II ENGINEERING OFFICERS\' ASSOCATION V. STATE OF&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">MAHARASHTRA\' (1990) 2 SCC 715, \'S. NAGARAJ (DEAD) BY LRS AND OTHERS V. B. R. VASUDEVA MURTHY AND OTHERS\' (2010) 3 SCC 353, \'M. NAGBHUSHANA V. STATE OF KARNATAKA\',&nbsp; (2011)&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3 SCC 408 and \'UNION OF INDIA V. S.P.SHARMA\' (2014) 6 SCC 351]. The Supreme Court in \'STATE OF KARNATAKA V. ALL INDIA MANUFACTURER’S ORGANISATION\', AIR 2006 SC 1846, has held that decision rendered in a public interest litigation has a binding effect as long as litigants act bonafide, as judgment in such a case binds the public at large and bars any member of the public from raising any connected issue or an issue which has been raised and should have been raised on an earlier occasion by way of public interest. [See: \'KANTARU RAJEEVARU V. INDIAN YOUNG LAWYERS ASSN.\' (2020) 2 SCC 1]. The Supreme Court in \'UNITED INDIA INSURANCE CO. LTD. V. RAJENDRA SINGH\' (2002) 3 SCC 581, held&nbsp; &nbsp;that&nbsp; &nbsp;fraud&nbsp; &nbsp;and&nbsp; &nbsp;justice&nbsp; &nbsp;never&nbsp; &nbsp;dwell together.</b></p><p><b>Although fraud vitiates all proceeding, however, where grounds of fraud had been adjudicated in an earlier round of litigation, raising the same ground in subsequent proceeding amounts to malicious prosecution and same is not permissible in law. [See: \'MEGHAMALA AND OTHERS V. G. NARSIMHA REDDY AND OTHERS\', (2010) 8 SCC 383].</b></p><p><b>B. In the backdrop of aforesaid settled legal principles with regard to constructive res judicata and res judicata, we may advert to the facts in hand. Validity of Notifications dated 04.01.1985 and 25.09.1986 issued under Section 4(1) and Section 6(1) of the Act, as well as the award notice dated 10/20.08.1992 was challenged in a bunch of writ petitions namely writ petition No.37086/1995, writ petition No.27255/1992, writ petition No.45047/1995, Writ petition No.4938/1996, writ petition No.5775/1996 and Writ petition No.5795/1996. In the aforesaid writ petitions, issues with regard to involvement of the middlemen and&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">change of name of Society were raised. The said writ petitions were dismissed by learned Single Judge by an order dated 16.07.1996. It was held as under:</b></p><p><b>C. The aforesaid order was subject matter of challenge at the instance of the petitioners in W.P.No.5795/1996, in which plea with regard to commission of fraud on the basis of judgment of the Supreme Court in \'HMT HOUSE BUILDING COOPERATIVE SOCIETY V. SYED KHADER AND&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">OTHERS\', AIR 1995 SC 2244 was taken.&nbsp; The aforesaid contention was repelled by a Division Bench of this Court by an order dated 13.02.1998.&nbsp;</b></p><p><b>E. The validity of the land acquisition proceeding was also challenged in a public interest litigation namely in W.P. No. 24386/1999 in which a Division Bench of&nbsp; this Court considered the report submitted by G.V.K. Rao Committee, and issue with regard to involvement of middlemen was considered.</b></p><p><b>F. The issues pertaining to approval of scheme under section 3(f)(vi) of the Act, the non applicability of decisions rendered in HMT HOUSE BUILDING COOPERATIVE SOCIETY as well as issues pertaining to res judicata and delay and laches were considered by another Division Bench of this Court in W.A.No.1480/2006 and it was held as under:</b></p><p><i><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">28. We have already held above that acquisition proceedings have been upheld&nbsp; in the earlier writ petition before this court in W.P.No.37086/95 and also Public Interest<span style=\"white-space:pre\">	</span>Litigation<span style=\"white-space:pre\">	</span>Petition<span style=\"white-space:pre\">	</span>in W.P.No.24386/99 disposed of on 29.09.2000 and wherefore, it is also indisputable that unless the petitioner is able to prove that respondent No.3 - society has committed fraud, the delay and laches on the part of the petitioner is to be explained as it is well settled that the petitioner having accepted the acquisition proceedings and received compensation, cannot challenge acquisition proceedings after a lapse of 19 years from the date of final Notification. Unless he is able to prove that respondent No.3 has committed a fraud or that the sale made by respondent No.3 in favour of respondent No.4 would initiate the acquisition proceedings and render the same invalid. What is contended&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by the appellant in W.A.No.1480/2006 by the learned Senior counsel appearing for the appellant is that no approval under Section 3(f)(vi) of the Act was granted for acquisition proceedings and wherefore, the entire acquisition proceeding is vitiated. We have already stated that acquisition proceedings has been challenged before this courting W.P.No.37086/1995 and W.P.No.24386/99 and all contentions which could be raised in the said writ petition cannot be agitated in the present writ appeals. Even otherwise, it is clear from the perusal of the intimation sent by the Government i.e., letter dated 12.10.1982 wherein, the respondent No.3 - Society has been permitted to initiate the acquisition proceedings. It is well settled that no particular form of approval is necessary for approval of the scheme submitted by respondent No.3 - Society for initiation of acquisition proceedings and in view of the said letter dated 12.10.1982, it is clear that the same can be construed as approval for initiating acquisition proceedings, wherein sanction is accorded to initiate the land acquisition proceedings in favour of the employees of N.T.I. Employees Housing Co-operative Society Ltd., respondent No.3- Society herein under normal rules.</b></i></p><p><b><i>34. What is connected by the writ petitioner-appellant in the present case is that sale of the property measuring 10 acres in respect of respondent No.3 - Society would vitiate the acquisition proceedings. It is clear from perusal of the decision and principles laidd own in case of (H.M.T. HOUSE BUILDING CO-OPERATIVE SOCIETY VS. SYED KHADER AND OTHERS (AIR 1995 SC 2244) that the Hon\'ble Supreme Court having regard to the fact that an agreement had been entered into between the Society and M/s S.R. Constructions, held that the only land in respect of which M/s S.R. Constructions entered into an agreement of sale should be the subject matter of the acquisition and the Hon\'ble Supreme Court held that exercise of power under Section 3(f)(6) of the act and the provisions of the Act is vitiated and it has been clearly held&nbsp;&nbsp;</i></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8 <i>of the said decision that exercise of statutory power under Section 4(1) and 6(1) of the Act is not based on objective consideration of the materials, on the basis of which the appropriate Government could have formed an opinion that the lands of the writ petitioners were required for public purpose and because of that it was necessary to acquire the same. The Hon\'ble Supreme Court also observed that the fact that Society had entered into an agreement wit the middlemen and exorbitant amount was paid to M/s S.R. constructions in the said case, who was an estate agent and as per the agreement, the said estate agent - M/s S.R. Constructions deposited the amount required for acquisition proceedings and the possession of the lands in respect of the said estate agent - M/s S.R. Constructions had agreement of sale which was the subject matter of acquisition and the Hon\'ble Supreme Court set aside the Notification issued under Section4(1) and 6(1) of the Act as mala fide and that the&nbsp;</i></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>entire proceedings is vitiated and restored the land to the land owners but the said decision is not helpful to the writ petitioner in the present case in W.A.No.1480/2006 and there is no merit in the contention of the learned Senior counsel that the facts of the case is covered by the decision of the Hon\'ble Supreme Court.</i></b></p><p><b>H. It is pertinent to note that validity of the order dated 04/05.07.2011 has already been upheld by a division bench of this court vide order dated 23.03.2016 passed in W.A.No.16454/2011 and all the contentions urged in the appeals have been repelled....It is pertinent to note that the aforesaid decision has attained finality and binds the parties.&nbsp;</b></p><p><b>I. Thus, it is evident that validity of land acquisition proceeding has been upheld and the grounds pertaining to fraud, involvement of middlemen, change of name of the Society, applicability of decisions in HMT HOUSE BUILDING COOPERATIVE SOCIETY non approval of scheme under Section 3(f)(vi) of the Act, have been negatived by various benches of this court. It is pertinent to note that issues pertaining to res judicata and delay and laches have also been adjudicated by division bench of this Court vide order passed in W.A.No.1480/2006. The appellants cannot be permitted to raise the issue with regard to applicability of the decision of the Supreme Court in VYALI KAVAL HOUSE BUILDING&nbsp; &nbsp;COOPERATIVE&nbsp; &nbsp;SOCIETY&nbsp; &nbsp;supra&nbsp; on the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">principles of constructive res judicata. The Supreme Court in Civil Appeal Nos.8593/2017 and 8594/2017 has repelled the challenge to the land acquisition proceedings on the ground of delay and laches and in view of the decision of the Supreme Court in Civil Appeal Nos. 8593/2017 and 8594/2017, the issues raised in these appeals cannot be entertained. It is also noteworthy that judgment of the learned Single Judge which is impugned before us, has already been affirmed by a division bench of this court in W.A.No.16454/2011&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and the said decision has attained finality. Thus, it is evident that challenge to the land acquisition proceeding is barred by principles of constructive res judicata as well as res judicata. The doctrine contained in maxim “boni judicis est lites dirimere, ne lis ex lite onitur, et interest reipulicate ut sint fines litium” which casts a duty upon the Court to bring litigation to an end or to atleast ensure that if possible no further litigation arises from the cases pending before the Court in accordance with law, would be applicable with greater emphasis where the judgment of the Court has attained finality before the highest Court. Therefore, all other Courts should decide similar cases, particularly covered cases, expeditiously and in consonance with the law of precedents [See: \'SPECIAL LAND ACQUISITION OFFICER V. KARIGOWDA AND OTHERS\', (2010) 5 SCC 708 AND \'PRIYA GUPTA V.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">STATE OF CHATTISGARH\' (2012) 7 SCC 433]. The&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">aforesaid doctrine has to be applied to the facts of these cases. There is an eminent&nbsp; need for consistency&nbsp; in&nbsp; the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">view of coordinate benches on the same issue, which has been laid down by the Supreme Court in \'SHANTHI CONDUCTORS (P.) LTD. VS. ASSAM SEB\' (2016) 15&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">SCC 14 and it has been held that subsequent bench would follow the earlier coordinate bench except in compelling circumstances such as where the order of earlier bench can said to be per incuriam. In the instant case, the various judgments rendered by benches of this court cannot be said to be per incuriam and in the facts and circumstances of the case, we do not find any ground to differ with the view taken by various benches of this court. The decision of Supreme Court in Civil Appeal No.8593/2017 and 8594/2017 dated 06.07.2017 in which the challenge to this very land acquisition proceedings has been repelled by the Supreme Court on the ground of delay and laches binds us. For the aforementioned reasons, it is held that writ petitions filed by the appellants have been rightly held to be barred on the principles of constructive res judicata and&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">res judicata by the learned single judge. Thus, first issue is answered in the affirmative.</b></p><p><b>&nbsp;</b></p>', 'afcde7e122f0dd8dd3480db96b472494.JPG', 'cb28d0cec451290b958099d10c4da62e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-02', 1, '', '', '2021-08-12 00:28:17', '2021-08-12 00:28:17'),
(953, 'vggf17ZfnYNYS4f0XcCHvb57o', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Bar contained in special enactments ousting civil court jurisdiction does NOT apply to disputes inter-se between private parties. Supreme Court. ', '<p><b>Ratul Mahanta vs Nirmlendu Saha&nbsp;</b></p><p><b>Civil Appeal 4627 of 2021 decided on 10 August 2021</b></p><p><b>Justice Hemant Gupta and Justice A.S.Bopanna</b></p><p><b>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2014/28589/28589_2014_43_1502_29202_Judgement_10-Aug-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2014/28589/28589_2014_43_1502_29202_Judgement_10-Aug-2021.pdf</a></b></p><p><b>7. In&nbsp;the&nbsp;background&nbsp;of&nbsp;the&nbsp;above&nbsp;contentions,&nbsp;the\r\nnature &nbsp; of &nbsp; the &nbsp; suit &nbsp; and &nbsp; the &nbsp; relief &nbsp; prayed &nbsp; for &nbsp; therein\r\nrequires&nbsp;to&nbsp;be&nbsp;noticed&nbsp;only&nbsp;to&nbsp;the&nbsp;limited&nbsp;extent&nbsp;to&nbsp;arrive\r\nat &nbsp; a &nbsp; conclusion &nbsp; as &nbsp; to &nbsp; whether &nbsp; the &nbsp; civil &nbsp; court &nbsp; had\r\njurisdiction&nbsp;to&nbsp;proceed&nbsp;with&nbsp;the&nbsp;suit&nbsp;or&nbsp;as&nbsp;to&nbsp;whether&nbsp;a\r\nbar&nbsp;with&nbsp;regard&nbsp;to&nbsp;jurisdiction&nbsp;as&nbsp;provided&nbsp;in&nbsp;the&nbsp;GMC\r\nAct &nbsp; will &nbsp; apply. &nbsp; Before &nbsp; adverting &nbsp; to &nbsp; that &nbsp; aspect, &nbsp; it &nbsp; is\r\nnecessary&nbsp;to&nbsp;take&nbsp;note&nbsp;of&nbsp;the&nbsp;contents&nbsp;in&nbsp;Section 9&nbsp;of&nbsp;CPC\r\nwhich&nbsp;provides&nbsp;for&nbsp;exercise&nbsp;of&nbsp;jurisdiction&nbsp;by&nbsp;civil&nbsp;court.<br></b></p><p><b>11. At&nbsp;the&nbsp;outset&nbsp;it&nbsp;is&nbsp;necessary&nbsp;to&nbsp;take&nbsp;note&nbsp;of&nbsp;Section\r\n341 &nbsp; of &nbsp; the &nbsp; GMC &nbsp; Act &nbsp; which &nbsp; provides &nbsp; for &nbsp; the &nbsp; bar &nbsp; of\r\njurisdiction&nbsp;of&nbsp;civil&nbsp;court&nbsp;which&nbsp;reads&nbsp;as&nbsp;hereunder:&nbsp;­\r\n“341­&nbsp;Bar&nbsp;of&nbsp;jurisdiction­&nbsp;Save&nbsp;as&nbsp;otherwise expressly&nbsp;provided&nbsp;no&nbsp;civil&nbsp;court&nbsp;shall&nbsp;have\r\njurisdiction&nbsp;to&nbsp;settle,&nbsp;decide&nbsp;or&nbsp;deal&nbsp;with&nbsp;any\r\nquestion, &nbsp; which &nbsp; is &nbsp; by &nbsp; or &nbsp; under &nbsp; this &nbsp; part\r\nrequired&nbsp;to&nbsp;be&nbsp;settled,&nbsp;decided&nbsp;or&nbsp;dealt&nbsp;with\r\nby&nbsp;the&nbsp;Commissioner.”&nbsp; ....<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">On&nbsp;perusal&nbsp;of&nbsp;the&nbsp;contents,&nbsp;it&nbsp;indicates&nbsp;that&nbsp;no&nbsp;civil\r\ncourt&nbsp;shall&nbsp;have&nbsp;jurisdiction&nbsp;to&nbsp;settle,&nbsp;decide&nbsp;or&nbsp;deal&nbsp;with\r\nany&nbsp;question&nbsp;which&nbsp;is&nbsp;under&nbsp;that&nbsp;part&nbsp;wherein&nbsp;Section\r\n341&nbsp;is&nbsp;placed&nbsp;and&nbsp;is&nbsp;required&nbsp;to&nbsp;be&nbsp;settled,&nbsp;decided&nbsp;or\r\ndealt&nbsp;with&nbsp;by&nbsp;the&nbsp;Commissioner.&nbsp;The&nbsp;Part&nbsp;VI&nbsp;under&nbsp;which\r\na&nbsp;bar&nbsp;is&nbsp;imposed&nbsp;relates&nbsp;to&nbsp;Land,&nbsp;Buildings&nbsp;and&nbsp;Streets.\r\nTherefore,&nbsp;on&nbsp;the&nbsp;face&nbsp;of&nbsp;it,&nbsp;it&nbsp;indicates&nbsp;that&nbsp;the&nbsp;issue\r\nrelating &nbsp; to &nbsp; a &nbsp; common &nbsp; drain &nbsp; between &nbsp; two &nbsp; private\r\nindividuals&nbsp;residing&nbsp;within&nbsp;the&nbsp;limits&nbsp;of&nbsp;the&nbsp;Municipal\r\nCorporation&nbsp;is&nbsp;not&nbsp;an&nbsp;issue&nbsp;regarding&nbsp;which&nbsp;a&nbsp;specific&nbsp;bar\r\nis&nbsp;contemplated&nbsp;against&nbsp;approaching&nbsp;the&nbsp;civil&nbsp;court&nbsp;for\r\nrelief.&nbsp;</span></b></p><p><b>14. The&nbsp;point&nbsp;for&nbsp;consideration&nbsp;is&nbsp;as&nbsp;to&nbsp;whether&nbsp;the\r\nexistence&nbsp;of&nbsp;such&nbsp;provision&nbsp;in&nbsp;GMC&nbsp;Act&nbsp;would&nbsp;impliedly\r\nbar&nbsp;a&nbsp;civil&nbsp;suit.&nbsp;For&nbsp;answering&nbsp;the&nbsp;said&nbsp;question,&nbsp;it&nbsp;would\r\nbe&nbsp;appropriate&nbsp;to&nbsp;refer&nbsp;to&nbsp;the&nbsp;decision&nbsp;in&nbsp;the&nbsp;case&nbsp;of&nbsp;Shiv\r\nKumar &nbsp; Chadha &nbsp; v. &nbsp; Municipal &nbsp; Corporation &nbsp; of &nbsp; Delhi\r\nand &nbsp;Others&nbsp; (1993)&nbsp;3&nbsp;SCC&nbsp;161.</b></p><p><b>15. Further, &nbsp; this &nbsp; Court &nbsp; in &nbsp; the &nbsp; case &nbsp; of &nbsp;Ramesh\r\nGobindram&nbsp;vs.&nbsp;Sugra&nbsp;Humayun&nbsp;Mirza&nbsp;Wakf &nbsp;(2010)&nbsp;8\r\nSCC &nbsp; 726 &nbsp; while &nbsp; examining &nbsp; the &nbsp; bar &nbsp; of &nbsp; civil &nbsp; court &nbsp; as\r\ncontemplated&nbsp;under&nbsp;Section&nbsp;85&nbsp;of&nbsp;the&nbsp;Wakf&nbsp;Act,&nbsp;1995&nbsp;had\r\ndrawn&nbsp;a&nbsp;distinction&nbsp;that&nbsp;such&nbsp;power&nbsp;would&nbsp;apply&nbsp;only&nbsp;in\r\nrespect&nbsp;of&nbsp;the&nbsp;issues&nbsp;arising&nbsp;under&nbsp;certain&nbsp;provisions&nbsp;of\r\nAct&nbsp;i.e.,&nbsp;Section&nbsp;6,&nbsp;7&nbsp;and&nbsp;83&nbsp;of&nbsp;the&nbsp;Wakf&nbsp;Act,&nbsp;1995&nbsp;and\r\nhad &nbsp; held &nbsp; that &nbsp; a &nbsp; suit &nbsp; before &nbsp; a &nbsp; civil &nbsp; court &nbsp; would &nbsp; be\r\nmaintainable &nbsp; for &nbsp; other &nbsp; reliefs &nbsp; notwithstanding &nbsp; the\r\ncreation&nbsp;of&nbsp;the&nbsp;Wakf&nbsp;tribunal&nbsp;under&nbsp;the&nbsp;Act,&nbsp;unless&nbsp;the\r\ndispute&nbsp;falls&nbsp;within&nbsp;the&nbsp;four&nbsp;corners&nbsp;of&nbsp;the&nbsp;powers&nbsp;vested\r\nin&nbsp;the&nbsp;Tribunal.&nbsp;Therefore,&nbsp;despite&nbsp;there&nbsp;being&nbsp;the&nbsp;bar&nbsp;of\r\njurisdiction&nbsp;of&nbsp;the&nbsp;civil&nbsp;courts&nbsp;under&nbsp;the&nbsp;Act,&nbsp;as&nbsp;noted,\r\nexcept&nbsp;for&nbsp;the&nbsp;disputes&nbsp;arising&nbsp;to&nbsp;the&nbsp;limited&nbsp;extent&nbsp;all.</b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">17. The\r\nrelief &nbsp; sought &nbsp; in &nbsp; the &nbsp; instant &nbsp; suit &nbsp; is &nbsp; in &nbsp; the &nbsp; nature &nbsp; of\r\ndeclaratory &nbsp; relief &nbsp; in &nbsp; an &nbsp;inter &nbsp; se&nbsp; dispute &nbsp; between &nbsp; the parties.&nbsp;&nbsp;The&nbsp;consideration&nbsp;by&nbsp;the&nbsp;statutory&nbsp;authority&nbsp;as\r\nprovided&nbsp;under&nbsp;GMC&nbsp;Act&nbsp;is&nbsp;of&nbsp;summary&nbsp;nature.&nbsp;&nbsp;Further,\r\nthe&nbsp;appeal&nbsp;provided&nbsp;is&nbsp;in&nbsp;respect&nbsp;of&nbsp;any&nbsp;notice&nbsp;issued&nbsp;or\r\naction &nbsp; taken &nbsp; or &nbsp; proposed &nbsp; to &nbsp; be &nbsp; taken &nbsp; by &nbsp; the\r\nCommissioner, &nbsp; which &nbsp; in &nbsp; effect &nbsp; provides &nbsp; the &nbsp; appeal\r\nremedy &nbsp;only &nbsp;to &nbsp; the&nbsp; owner &nbsp;of &nbsp;the &nbsp;drain &nbsp;against whom\r\naction&nbsp;is&nbsp;proposed.</span>&nbsp;<br></b></p><p><b>19. In&nbsp;view&nbsp;of&nbsp;the&nbsp;above,&nbsp;it&nbsp;is&nbsp;clear&nbsp;that&nbsp;the&nbsp;High&nbsp;Court\r\nwithout&nbsp;taking&nbsp;note&nbsp;of&nbsp;these&nbsp;aspects&nbsp;of&nbsp;the&nbsp;matter&nbsp;has\r\nwrongly&nbsp;invoked&nbsp;the&nbsp;provisions&nbsp;contained&nbsp;in&nbsp;Order&nbsp;VII\r\nRule 11&nbsp; (d)&nbsp; of&nbsp; the&nbsp; Civil Procedure &nbsp; Code &nbsp; to &nbsp; reject &nbsp; the\r\nplaint,&nbsp;when&nbsp;in&nbsp;the&nbsp;instant&nbsp;facts&nbsp;there&nbsp;is&nbsp;neither&nbsp;express\r\nnor&nbsp;implied&nbsp;bar&nbsp;under&nbsp;any&nbsp;law.&nbsp;On&nbsp;the&nbsp;other&nbsp;hand,&nbsp;the\r\nlearned&nbsp;Munsif&nbsp;was&nbsp;justified&nbsp;in&nbsp;passing&nbsp;the&nbsp;order&nbsp;dated\r\n16.11.2013&nbsp;in&nbsp;T.S.&nbsp;No.&nbsp;334/2011&nbsp;holding&nbsp;the&nbsp;suit&nbsp;to&nbsp;be\r\nmaintainable.</b></p><p><b><br></b></p><p><b>The&nbsp;appeal&nbsp;is&nbsp;accordingly&nbsp;allowed<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p><br></p>', '2565efb74b2640810ad71a683bc87268.jpg', '6e3cc6fd70736252e119fc837a2f22f3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-10', 1, '', '', '2021-08-12 01:23:19', '2021-08-12 01:23:19'),
(954, 'rO9UzHSfS9mmDqrVm9shdieP7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Commissions for Protection of Child Rights Act, 2005.  State or Central Commissions for child rights protection have NO power to adjudicate disputes or to give directions. Commissions can only make recommendations. Karnataka High Court.  ', '<p><b>Holy Child Convent vs Karnataka State Commission for Child Rights Protection and others.</b></p><p><b>Writ Petition 38724 of 2017 decided on 11 March 2019.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/261348/1/WP38724-17-11-03-2019.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/261348/1/WP38724-17-11-03-2019.pdf</a></b><br></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. In this petition under Article 226 of the Constitution of India, the petitioner inter alia has  assailed the validity of the order dated 21.08.2017 passed by the State Commission for Child Rights Protection, by which, the commission has directed the </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">B.E.O  to keep licence of the petitioner in abeyance until further orders.</b></p><p><b>7. From the provisions of Sections 15 and 16 of Commissions for Protection of Child Rights Act, 2005, it  is evident that the commission has no adjudicatory  power and it can only make recommendation for completion of the enquiry to the concerned Government. In the absence of any statutory provision, the impugned order is per se without jurisdiction. The same is therefore, quashed. </b></p>', 'bb9b7a575785c79cde634ce935c0a700.jpg', '908811ef184e8ad4af7957c1af3e240e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2019-03-11', 1, '', '', '2021-08-12 16:32:33', '2021-08-12 16:34:08'),
(955, 'Tiay7VdrTEvvM3IxUdTGwuuEb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Section 482. Criminal proceedings, which are otherwise civil in nature, and initiated with mala fide intention to wreck vengeance are liable to be quashed. Karnataka High Court. ', '<p><b>Sri. Purushothamanandanatha Swamiji vs C. Lakshminarayana and another </b></p><p><b>Criminal Petition 4135 of 2012 decided on 2 August 2021</b></p><p><b>Judgment Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/400707/1/CRLP4133-12-02-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/400707/1/CRLP4133-12-02-08-2021.pdf</a></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">These petitions are filed by accused Nos.2 to 4 in PCR No.30/2012 praying this Court to quash the complaint and the proceedings in PCR No.30/2012 and consequently quash the FIR in Crime No.57/2012 filed by the second  respondent/complainant on the file of XXIII Additional City Civil @ Special Judge for Prevention of Corruption Act, Bengaluru.</b></p><p><b>32.In the case on hand also, as I have already pointed out the complainant had sought a seat for the candidate in the Institution run by accused No.1 and same was rejected in the year 2011, from where the vengeance started and thus, with a mala fide intention and also with malicious intention instituted a complaint with an ulterior motive for wrecking vengeance on the accused.</b></p><p><b>38.<span style=\"white-space:pre\">	</span>Having considered the principles laid down in the judgments referred supra and as I have already pointed out that the Court cannot exercise the powers under Section 482 of Cr.P.C. if the materials are found to proceed against the accused persons. In the case on hand, no such materials are found in the complaint and also there is a non-application of mind by the Magistrate while referring the matter under Section 156(3) of Cr.P.C. for investigation, which amounts to an abuse of process and miscarriage of justice.</b></p><p><b>40. It is also the settled law that initiation of the criminal proceedings against the persons is a serious matter and criminal law cannot be set into motion as a matter of course and the Magistrate has to carefully scrutinize the materials brought on record. On going through the entire averments of the complaint and the materials available on record, it is nothing but an allegation of violation of grant conditions. Hence, it is clear that  a criminal colour is given to a civil dispute which is related to any violation of grant conditions and the same has to be agitated at the most in civil side in a civil proceeding and not converting the same as a criminal prosecution. In the case on hand also, the property was transferred after getting prior approval from the Government in the year 1997 itself and only because of the typographical error found in the correspondence of office proceedings in referring the Government Order, which has been maginified in the complaint and not in Government Order and the same is in order. The very initiation of the criminal proceedings is made with mala fide intention to wreck vengeance. Hence, it is a fit case to exercise the powers under Section 482 of Cr.P.C. or otherwise, it amounts to an abuse of process which leads to miscarriage of justice.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'ffd6c574c10fd8d8b99e59d98677071f.jpg', '2ce4c4123fb38b95ba0c4ec6891f2c85.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-12', 1, '', '', '2021-08-12 20:23:20', '2021-08-12 10:01:37'),
(956, 'ugeUzA9luCNYAXcv4bjwMfP6j', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Typographical error or defect in application would not take away status of applicant. Application cannot be rejected on that ground. Karnataka High Court. ', '<p><b>M. Sangeetha vs The State of Karnataka and others.&nbsp;</b></p><p><b>Writ Petition 12087 of 2021 decided on 20 July 2021</b></p><p><b>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/400062/1/WP12087-21-20-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/400062/1/WP12087-21-20-07-2021.pdf</a></b></p><p><b>3. The petitioner challenges a provisional select list on the ground that it omits the names of the petitioner holding that the certificate of residence which is a requisite certificate to be given for consideration of appointment to the post of Anganawadi Karyakarthe depicts that it is given in the year 2000 instead of 2020.</b></p><p><b>4. This typographical error is sought to be pitted against the petitioner to deny her consideration for&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appointment for the post of Anganawadi Karyakarthe in terms of the guidelines.</b></p><p><b>5. The omission in the candidature of the petitioner on this ground is also accepted&nbsp; by&nbsp; the&nbsp; learned Additional Government Advocate. The omission, if it is only on account of the aforesaid typographical error, it would be highly unjust for the respondents to deny the claim of the petitioner for appointment if she&nbsp; is otherwise eligible and meritorious, as it is a small error&nbsp; or a curable defect as is held by the Apex Court&nbsp; in the case of Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board and Another reported in (2016) 4 SCC 754.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. The case at hand is a classic illustration of the observations of the Apex Court that a typographical error or defect in the application would not take away the status of the applicant. It even defeats logic to deny the candidature of the petitioner on the ground that the residence certificate is of the year 2000 and not 2020.</b><br></p><p><b>7. Therefore, I deem it appropriate to direct the respondent-State to consider the case of petitioner along with others and take the process further&nbsp; for&nbsp; appointment to the post of Anganawadi Karyakarthe&nbsp;</b></p>', '69ffe120db9b5fca5082a3711fbdd387.jpg', 'c684d4c9af560c61dac94de36d6d3b7f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-07-20', 1, '', '', '2021-08-13 01:31:38', '2021-08-13 01:31:38');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(958, 'aEETaXYnZW4SgXlobDZOMsr4F', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Rejection of plaint on the ground of constructive resjudicata under Order 2 rule 2. Case law discussed. Karnataka High Court. ', '<p><b>Prasad Baji and another vs Vijayakumar Ghatage</b></p><p><b>Civil Revision Petition 200005 of 2021 decided on 10 August 2021</b></p><p><b>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/400748/1/CRP200005-21-10-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/400748/1/CRP200005-21-10-08-2021.pdf</a></b></p><p><b>13.</b><span style=\"font-weight: bold; white-space: pre;\">	</span><b>In Alka Gupta vs. Narender&nbsp; Kumar&nbsp; Gupta&nbsp; reported&nbsp; in&nbsp; (2010)&nbsp; 10 SCC 141, in paragraph 30 of the judgment, the Hon\'ble Apex Court was pleased to observe that unless the defendants pleads the bar under Order II Rule 2 of CPC and issue is framed focussing the parties on that bar to suit, obviously the Court cannot examine or reject a suit on that ground.</b></p><p><b>15....&nbsp;Jayantilal Chimanlal Patel vs. Vadilal&nbsp; Purushottamdas Patel (2017) 13 SCC 409,&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the&nbsp; plea with respect to Order II Rule 2 of CPC has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning. As observed by their Lordship in paragraph 10 of the judgment in the said case, it is clearly discernible that filing of the earlier plaint of earlier suit and proving it as per law is imperative to sustain the plea of Order II Rule 2 of CPC unless that is done, the stand would not be entertainable.</b></p><p><b>16. The Hon\'ble Apex Court in the case of Popat and Kotecha Property vs. State Bank of India Staff Association reported in (2005)7 SCC 510 with respect to object, nature, scope and applicability of Order VII Rule 11(d) of CPC was pleased to observe in paragraph 10 of its judgment that clause&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(d) of Order VII Rule 11 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering on&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">application filed under Order VII Rule 11 of CPC. Clause (d) of Order VII Rule 11 of CPC applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">17. In Kamala and Others vs. K. T. Eshwara Sa&nbsp; and Others reported in (2008) 12 SCC 661, the Hon\'ble Apex Court regarding the pre-condition for applicability of Order VII Rule 11&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(d) of CPC was pleased to observe in paragraph 21 of its judgment that Order VII Rule 11 (d) has a limited application. It must be shown that the suit must be barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order VII Rule 11 should not be mixed up. What would be relevant for invoking the clause (d) of Order VII Rule 11 of CPC are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction.</b></p><p><b>18. The Hon\'ble Apex Court in the case of Bengal Waterproof Limited vs. Bombay&nbsp; Waterproof&nbsp; Manufacturing Company and Another reported in&nbsp; (1997)1&nbsp; SCC 99&nbsp; with respect to plea of bar under Order II Rule 2 (3) of CPC in respect of claim of relief in subsequent suit, was pleased to hold in&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">paragraph 10 of its judgment that subsequent suit must be in respect of the same cause of action as that on which the previous suit was based. In case of continuing or recurring wrong there would be corresponding continuous or recurrent causes of action. Considering the facts of the case before it, the Hon\'ble Apex Court was further pleased to observe that action for passing off continuing deceit gives rise to fresh causes of action. Observing the fact in the case before it, which was an action for passing off whereunder first suit was filed by the plaintiff based on infringement of plaintiff\'s trademark by the defendants and passing off, of defendants\' goods as if they were plaintiff\'s goods in the year 1980 but also filed a second suit in the year 1982, based on continuous acts of infringement of its trademark and continuous passing off action on the part of the defendants subsequent to filing of earlier suit and continuing till date of filing of the second suit, the Hon\'ble Apex Court held that cause of action in the two suits are different, as such one of the ingredients of Rule 2 (3) of Order II having not satisfied, bar thereunder would not operate.</b></p><p><b>20.<span style=\"white-space:pre\">	</span>In the instant case as observed above, the mere plea of Order II Rule 2 of CPC taken up by the petitioners as defendants in the trial Court was not with respect to filing of the suit on the same cause of action, but, Order II Rule 2 of CPC was attempted and invoked on the ground that the relief of permanent injunction and specific performance of the agreement ought to have been prayed together in a single suit, as such, the suit was not maintainable. Since, the said contention is found to be not acceptable, by virtue of analysis made above and in view of the fact that the trial Court after considering the other contentions raised by the applicants about the alleged non registration of the documents and alleged deficit stamp duty upon alleged agreement also has arrived at&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">an appropriate finding on the points and thus has proceeded to pass the impugned order. I do not find any irregularity in the said order warranting interference by this Court.</b></p><p></p><p><b>The Civil Revision Petition stands dismissed as devoid of merits.</b></p><div><br></div><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '623cbd482951893d32b3a949993acc88.jpg', '1460a3013420349972aaee5943bdac54.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-10', 1, '', '', '2021-08-16 00:35:39', '2021-08-16 00:35:39'),
(2915, 'SGBBoQD8WEYVbfMpL8IeyhNlU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prevention of Food Adulteration Act, 1954. Vendor who sells food article after purchasing the same from the manufacturer through the invoices which contained the warranty cannot be prosecuted for adulteration or misbranding. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/s Sri Mahavir Agency and another Vs The State of West Bengal and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 982 of 2023 decided on 17 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Abhay S. Oka and Justice Rajesh Bindal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The appellant was accused in a complaint filed\r\nunder Section 16(1)(a)(i) read with Section 7 of the Prevention\r\nof Food Adulteration Act, 1954 (for short “the Act”). He was\r\nconvicted and sentenced to undergo rigorous imprisonment\r\nfor a period of six months by Senior Municipal Magistrate,\r\nCalcutta. In appeal, the conviction and sentence of the\r\nappellant was upheld by the Additional District & Sessions\r\nJudge, Fast Track Court, Calcutta vide judgment dated\r\n26.06.2009 in Criminal Appeal No.106/2007. The order was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">challenged before the High Court at Calcutta by filing a\r\nrevision petition bearing C.R.R. No.64/2014 which was\r\ndismissed on 08.06.2016. The judgment has been impugned\r\nbefore this Court.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">8. A perusal of Section 14 of the Act shows that there is\r\na bar on the manufacturer or distributor or dealer to sell any\r\narticle to any vendor unless he has given a warranty in writing </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">about the nature and quality of such article to the vendor. Rule\r\n12A of the Prevention of Food Adulteration Rules, 1955 (for\r\nshort, “the Rules”) prescribes the procedure to give warranty.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Proviso to Section 14 thereof provides that a bill,\r\ncash memorandum or invoice in respect of the sale of any\r\narticle of food given by a manufacturer or distributor of, or\r\ndealer in, such article to the vendor thereof shall be deemed\r\nto be a warranty given by such manufacturer, distributor or\r\ndealer.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. A conjoint reading of Section 14, Rule 12A and Form\r\nVIA provides that no manufacturer or distributor or a dealer of\r\nany food article shall sell such article to any vendor unless he\r\nhas given a warranty in writing in the prescribed form\r\nregarding nature and quality of such articles to the vendor.\r\nThe procedure to give a warranty has been provided in Rule\r\n12A of the Rules. Proviso to Section 14 provides that even a\r\nbill, cash memo or invoice in respect of sale of any article <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">given by the manufacturer or distributor or dealer shall be\r\ndeemed to be a warranty given by such manufacturer,\r\ndistributor or dealer. Form VIA provides the text of the\r\nwarranty to be given.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Section 19(2) of the Act provides for the defences\r\nwhich are available to a vendor from prosecution under the\r\nAct. Sub-clause (ii) of Section 19(2)(a) of the Act provides that\r\na vendor shall not be deemed to have committed an offence\r\npertaining to the sale of any adulterated or misbranded article\r\nof food if he proves that he purchased the article of food from <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">any manufacturer, distributor or dealer with a written warranty\r\nin prescribed form. Accordingly, the appellant was having a\r\nvalid defence in terms of Section 19(2) of the Act as the packed\r\nitem sold by him namely ‘Pan Parag’ was having a written\r\nwarranty in prescribed form from the manufacturer.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>14. The term ‘Vendor’ as such has not been defined\r\neither in the Act or in the Rules. In Mangaldas Raghavji\r\nRuparel’s case (supra), the word ‘Vendor’ is defined to mean\r\na person who has sold the article of food, which is alleged to\r\nbe adulterated. The Bench stated:-</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>\r\n“The word “Vendor” though not defined in the Act,\r\nwould obviously mean the person who had sold the\r\narticle of food which is alleged to be adulterated.”</i></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. In the case in hand, it is the appellant who sold the\r\narticle of food after purchasing the same from the\r\nmanufacturer through the invoices which contained the\r\nwarranty as prescribed under the Act and the Rules. Hence,\r\nhe had the protection available under Section 19(2)(a) of the\r\nAct. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>16. Though, Section 20A of the Act provides for\r\nimpleadment of manufacturer, distributor, or dealer in a\r\npending complaint, however, nothing was pointed out at the\r\ntime of hearing that any such action was taken.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>17. In view of the aforesaid reasons, the appeal is\r\nallowed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c40a65b24f39621d566ed87fe91d6798.jpeg', '50b2ea082316fb3633cfa826fa1b8d65.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-19', 1, '', '', '2023-04-18 11:29:36', '2023-04-19 08:29:02'),
(961, 'lHx0GVZdWM9Nkdt1gFvxNpMfi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Purchaser from mortgagor is a necessary party in a suit for foreclosure filed by the mortgagee after the purchase. Decree for foreclosure obtained without making purchaser a party is void. Supreme Court  ', '<p><b>Narayan Deorao Javle vs Krishna and others. </b></p><p><b>Civil Appeal 4726 of 2021 decided on 17 August 2021</b></p><p><b>Justice Hemant Gupta and Justice A.S.Bopanna.</b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2015/10804/10804_2015_42_1502_29369_Judgement_17-Aug-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2015/10804/10804_2015_42_1502_29369_Judgement_17-Aug-2021.pdf</a></b></p><p><b>10. We have heard learned counsel for the parties. The issues arising in\r\nthe present appeal are examined hereinafter.\r\n(i) Whether the plaintiff was a necessary party in a suit for foreclosure\r\nfiled by the mortgagee after the purchase?\r\n11. The plaintiff has purchased property vide registered sale deed on\r\n18.5.1964, much before the filing of the suit for foreclosure in the\r\nyear 1965. The possession of the plaintiff was recorded in the\r\nrevenue record after the purchase of the property, but still, the\r\nmortgagee chose not to implead the subsequent purchaser. The\r\noriginal mortgagor who has mortgaged the property had no\r\nsubsisting title, interest or right in the property conveyed, therefore,\r\nthe factum of compromise between the mortgagor and the\r\nmortgagee is ineffective and not enforceable against the purchaser\r\ni.e., the plaintiff. Once the plaintiff has purchased property, the\r\nequity of redemption is part of the title and as an owner, he could\r\nseek redemption of the suit land. </b></p><p><b>12. The learned counsel for the mortgagee could not point out any\r\nprovision of law that can prove that the subsequent purchaser has to give notice to the mortgagee signifying purchase of the property,\r\nby a mortgagor. The factum of purchase coupled with the delivery of\r\npossession completes the title of the plaintiff over the land in\r\nquestion. Therefore, the decree obtained in such a suit is void.</b></p><p><b>13. The plaintiff rightly claimed that he was required to be impleaded,\r\nas he was a necessary party in a suit for foreclosure filed by the\r\nmortgagee after the purchase of part of the mortgaged land. The\r\nappellant also placed reliance on a judgment of this Court reported\r\nas Dr. Govinddas & Anr. v. Shrimati Shantibai & Ors.\r\n(1973) 3 SCC 418\r\n, to\r\ncontend that the mortgagee, the original mortgagor and the\r\nappellant are residents of the same village. Therefore, the factum of\r\nsale is deemed to be in the notice of the mortgagee in addition to\r\nthe delivery of possession by the mortgagors supported by the\r\nrevenue record and also the fact that the possession was taken\r\nfrom the appellant. Therefore, non-impleadment of the appellant\r\nrenders the decree for foreclosure as non-est and void. It is also\r\nargued that it was a case of a simple mortgage without delivery of\r\npossession. The possession was taken from the appellant\r\nconsequent to the decree of foreclosure granted in favour of the\r\nmortgagee. The findings recorded by the Trial Court that the\r\nplaintiff has purchased the property and not equity of redemption is\r\nclearly without any basis. In view of the fact that the possession\r\nwas delivered and the fact that the parties are residents of the\r\nsame village, there is ‘constructive notice’ of purchase of land by the appellant.</b></p><p><b>15. Still further, in terms of Section 91 of the Act, the plaintiff having\r\nstepped into the shoes of the mortgagor in respect of land\r\npurchased by him has a right to redeem the land mortgaged. In\r\naddition, the Order XXXIV Rule 1 of the Code provides that all\r\npersons having an interest either in the mortgage-security or in the\r\nright of redemption shall be joined as parties to any suit relating to\r\nthe mortgage including suit for foreclosure. The original\r\nmortgagors i.e., defendant Nos. 1 and 2 denied the plaintiff’s right\r\nto redeem the property though admitting they have borrowed\r\nRs.1,000/- from the plaintiff. It was pleaded that the plaintiff was\r\nput in possession of the suit property for ten years and, therefore,\r\nplaintiff was required to resell the property to defendant Nos. 1 and\r\n2. But the said defendant has not supported such plea in evidence.\r\nThe defendant Nos. 1 and 2 entered into compromise with the\r\nmortgagee to pay the mortgage amount. The said mortgage\r\namount was not paid which led to passing of the final decree.\r\nThus, it is a case of collusion between the original mortgagors and\r\nthe mortgagee so as to defeat the right of the plaintiff. <br></b></p><p><b>16. The Equity of redemption means a right to redeem the property\r\nbased upon equitable principles. This Court in a judgment reported\r\nas Shivdev Singh & Anr. v. Sucha Singh & Anr.\r\n(2000) 4 SCC 326, held that the\r\nright of redemption recognised under the Act is a statutory and\r\nlegal right which cannot be extinguished<br></b></p><p><b>18. In a recent judgment of this Court reported as Jamila Begum\r\n(Dead) though Legal Representatives v. Shami Mohd.\r\n(Dead) through Legal Representatives & Anr.\r\n(2019) 2 SCC 727, it was held\r\nthat by virtue of purchase of the property, the purchaser has\r\npurchased the entire equity of redemption. </b></p><p><b>19. The equity of redemption is a right which is subsidiary to the right\r\nof ownership. Such right is not over and above the right of\r\nownership purchased by the plaintiff. The expression equity of\r\nredemption is a convenient maxim but an owner, who has stepped\r\ninto the shoes of the mortgagor, after the purchase from the\r\nmortgagor but before filing a suit for foreclosure is entitled to\r\nredeem the property in terms of Section 60 of the Act. <br></b></p><p><b><br></b></p><p><br></p>', '44ff9a377408deb42166f252c9af5303.jpg', '3714a63da6b1743fb79affa1d094ab5c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-17', 1, '', '', '2021-08-17 23:18:18', '2021-08-17 23:19:49'),
(962, 'R08T4CWuVVIoLYIdJmQYonSqg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Distinction between over-ruling a principle and reversal of judgment. Mere over-ruling of the principles, on which the earlier judgment was passed, by a subsequent judgment of higher forum will not have the effect of uprooting the final adjudication. SC', '<p><b>decided on 17 August 2021 </b></p><p><b>Justice S. Abdul Nazeer and Justice Krishna Murari </b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2018/24799/24799_2018_37_1502_29338_Judgement_17-Aug-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/24799/24799_2018_37_1502_29338_Judgement_17-Aug-2021.pdf</a></b></p><p><b>30. It becomes absolutely clear from the above clarification that earlier decisions\r\nrunning counter to the principles settled in the decision of Umadevi (3) will not be\r\ntreated as precedents. It cannot mean that the judgment of a competent Court delivered\r\nprior to the decision in Umadevi (3) and which has attained finality and is binding inter\r\nse between the parties need not be implemented. Mere over-ruling of the principles, on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which the earlier judgment was passed, by a subsequent judgment of higher forum will\r\nnot have the effect of uprooting the final adjudication between the parties and set it at\r\nnaught. There is a distinction between over-ruling a principle and reversal of the\r\njudgment. The judgment in question itself has to be assailed and got rid of in a manner\r\nknown to or recognized by law. Mere over-ruling of the principles by a subsequent\r\njudgment will not dilute the binding effect of the decision on inter-parties</span><br></b></p><p><b>34. In Rupa Ashok Hurra Vs. Ashok Hurra & Anr.6\r\n, while dealing with an identical\r\nissue this Court held that reconsideration of the judgment of this Court which has\r\nattained finality is not normally permissible. The decision upon a question of law\r\nrendered by this Court was conclusive and would bind the Court in subsequent cases.\r\nThe Court cannot sit in appeal against its own judgment.<br></b></p><p><b>36. Thus, it is very well settled that it is not permissible for the parties to re-open the\r\nconcluded judgments of the Court as the same may not only tantamount to an abuse of\r\nthe process of the Court but would have far reaching adverse effect on the administration\r\nof justice.<br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '514b67af425b757736e3a15523f36393.JPG', 'eb192457b0125f4382d695ac939cc2e3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-17', 1, '', '', '2021-08-18 01:17:55', '2021-08-18 01:19:54'),
(963, 'mEErSS3AzwTKFhSJ8e1MeeX4Q', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Requirement of following procedure under Section 155 is NOT necessary if a FIR is registered for both cognizable and non-cognizable offences. Karnataka High Court. ', '<p><b>H.S.Basavaraj vs State of Karnataka </b></p><p><b>Criminal Petition 2739 of 2020 decided on 30 November 2020</b></p><p><b>Judgment Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352759/1/CRLP2739-20-30-11-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/352759/1/CRLP2739-20-30-11-2020.pdf</a></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1. The petitioners are before this Court seeking for quashing of the FIR in Crime No.69/2020 K.T.J. Nagar police station for the offences punishable under Section 269 of IPC and Section 87 of the Karnataka Police Act, pending on the file of II JMFC Court, Davanagere.</b><br></p><p><b>3. A perusal of the complaint indicates that the complaint is lodged both under Section 87 of Karnataka Police Act and under section 269 of IPC. The offence under Section 87 is non-cognizable in nature requiring following of the procedure under Section 155 of Cr.P.C. However, an offence under Section 269 of the IPC though punishable with a maximum term of six months or with fine or with both is classified as a cognizable  offence.  In view  of one of the offence alleged against the petitioners being cognizable, the requirement of following the procedure under Section 155 for the non-cognizable offence under Section 87 of the  Karnataka Police  Act would not be applicable. Once a cognizable offence is alleged, there would be no requirement of following a procedure under Section 155 of Cr.P.C.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Petition is dismissed.</b><br></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'b6b393bcf28062d05f287d24b2743d27.jpeg', '85090d4ebea71242de41ae0950853ff2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2020-11-30', 1, '', '', '2021-08-18 02:09:28', '2021-08-18 02:11:24'),
(964, 'qklBs3xCoa97LFtfdCW2NKl6n', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Workmen\'s Compensation Act, 1932. Death of plantation worker while proceeding to work. Such death is \'during the course of employment\'. Legal heirs are entitled to compensation. Karnataka High Court. ', '<p><b>N.L. Punyamurthy vs Meenakshamma and others. </b></p><p><b>Miscellaneous First Appeal 5322 of 2011 decided on 2 August 2021</b></p><p><b>Judgment Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/401921/1/MFA5322-11-02-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/401921/1/MFA5322-11-02-08-2021.pdf</a></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The appeals in M.F.A.Nos.5322/2011 and 3254/2011 are filed by the first and second respondent, who are the insured  and the Insurance Company respectively, challenging the judgment and award passed by the Labour Officer and Commissioner for Workmen’s compensation, Sub-Division-2, at Chickmagalur (‘the Workmen’s Commissioner’ for short) dated 28.10.2010 vide No.WCA/FC/40/2007, questioning the apportionment and the liability.</b><br></p><p><b>27. The Insurance Company has mainly raised the substantial questions of law that the Commissioner has committed an error in holding that death occurred during the course of employment and arising out of employment and the cause of death was due to heart attack when he slipped down and fell on the wet land which belongs to the insured. The insured also raised the similar substantial questions of law and hence, the substantial questions of law raised by the Insurance Company and also the insured are taken up together for common consideration.</b></p><p><b>28.<span style=\"white-space:pre\">	</span>Having perused the material on record, both oral and documentary evidence, it is the claim of the claimant that the deceased was working with insured. The insured also not disputed the said fact. The insured relied upon the document Ex.R2-attendance register which discloses that the deceased was working with the insured. But a contention was taken that the death of the deceased was not during the course of employment or arising out of the employment. The Insurance Company also took the defence that the death was due to heart attack which is substantiated by the records. But, the fact is that, the deceased </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">worked on the previous day also and he was employed with the insured since last 15 years. It is also the specific claim of the claimant that on the date of the incident also, the deceased left the house, in order to attend the work of the insured. It is the further claim of the insured that the work begins at 8 a.m. The claimant, also categorically pleaded that while proceeding to the work of the insured, the deceased slipped down from the wet land which belongs to the insured, who also not disputed the said fact that he fell down and died on his land. Hence, it is  clear that, the deceased was proceeding to attend the duty and he slipped down in the wet land and at that time, he  has suffered heart attack.</b></p><p><b>29. No doubt, it is the specific contention of the insured and the Insurance Company that the death of the deceased was not during the course of employment and arising out of the employment. The fact that the deceased left the house, in order to attend the duty has not been disputed. The contention that death of the deceased was not during the course of employment cannot be accepted.</b></p><p><b>Cases referred:</b></p><p style=\"margin-top:0cm;margin-right:0cm;margin-bottom:0cm;margin-left:36.0pt;\r\ntext-indent:-18.0pt;mso-list:l0 level1 lfo1\"><!--[if !supportLists]--><b><span style=\"font-family: \"Segoe UI\", sans-serif;\">1.<span style=\"font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: \"Times New Roman\";\">   \r\n</span></span><!--[endif]--><span style=\"font-family: \"Segoe UI\", sans-serif;\">The Oriental Insurance Company Limited, Bengaluru v. Gangavva and\r\nAnother reported in 1998 (6) KAR LJ 433.</span><span style=\"font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></b></p><p style=\"margin-top: 0cm; margin-right: 0cm; margin-left: 36pt; text-indent: -18pt;\"><!--[if !supportLists]--><b><span style=\"font-family: \"Segoe UI\", sans-serif;\">2.<span style=\"font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: \"Times New Roman\";\">    </span></span><!--[endif]--><span style=\"font-family: \"Segoe UI\", sans-serif;\">Shakuntala Chandrakant Shreshti v.Prabhakar Maruti Garvali. (2007)\r\n11 SCC 668 </span><span style=\"font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></b></p><p style=\"margin-top: 0cm; margin-right: 0cm; margin-left: 36pt; text-indent: -18pt;\"><!--[if !supportLists]--><b><span style=\"font-family: \"Segoe UI\", sans-serif;\">3.<span style=\"font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: \"Times New Roman\";\">    </span></span><!--[endif]--><span style=\"font-family: \"Segoe UI\", sans-serif;\">Malikrajuna G.Hiremath v. Branch Manager, Oriental Insurance\r\nCompany Limited and another 2009 ACJ 721 </span><span style=\"font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></b></p><p style=\"margin-top: 0cm; margin-right: 0cm; margin-left: 36pt; text-indent: -18pt;\"><!--[if !supportLists]--><b><span style=\"font-family: \"Segoe UI\", sans-serif;\">4.<span style=\"font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: \"Times New Roman\";\">    </span></span><!--[endif]--><span style=\"font-family: \"Segoe UI\", sans-serif;\">The Oriental Insurance Company Limited v. Gangavva and Another\r\n1998 (6) KAR. L.J. 433 </span><span style=\"font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></b></p><p style=\"margin-top: 0cm; margin-right: 0cm; margin-left: 36pt; text-indent: -18pt;\"><!--[if !supportLists]--><b><span style=\"font-family: \"Segoe UI\", sans-serif;\">5.<span style=\"font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: \"Times New Roman\";\">    </span></span><!--[endif]--><span style=\"font-family: \"Segoe UI\", sans-serif;\">New India Assurance Company Limited v. Hashadbhai Amrutbhai\r\nModhiya and Another 2006 ACJ 1699 </span><span style=\"font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></b></p><p style=\"margin-top: 0cm; margin-right: 0cm; margin-left: 36pt; text-indent: -18pt;\"><!--[if !supportLists]--><b><span style=\"font-family: \"Segoe UI\", sans-serif;\">6.<span style=\"font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: \"Times New Roman\";\">    </span></span><!--[endif]--><span style=\"font-family: \"Segoe UI\", sans-serif;\">National Insurance Company Limited, Chitradurga Branch v. Smt.\r\nRenukamma and Others, ILR 2019 KAR 539 </span><span style=\"font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></b></p><p style=\"margin-top: 0cm; margin-right: 0cm; margin-left: 36pt; text-indent: -18pt;\"><!--[if !supportLists]--><b><span style=\"font-family: \"Segoe UI\", sans-serif;\">7.<span style=\"font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: \"Times New Roman\";\">    </span></span><!--[endif]--><span style=\"font-family: \"Segoe UI\", sans-serif;\">M/s Oriental Insurance Company Limited v. Sri. Murthaiah and\r\nOthers M.F.A.No.10991/2010 (WC) </span><span style=\"font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></b></p><p style=\"margin-top: 0cm; margin-right: 0cm; margin-left: 36pt; text-indent: -18pt;\"><!--[if !supportLists]--><b><span style=\"font-family: \"Segoe UI\", sans-serif;\">8.<span style=\"font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: \"Times New Roman\";\">    </span></span><!--[endif]--><span style=\"font-family: \"Segoe UI\", sans-serif;\">Manju Sarkar and Others v. Mabish Miah and Others (2014) 14 SCC\r\n21 </span><span style=\"font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></b></p><p style=\"margin-top: 0cm; margin-right: 0cm; margin-left: 36pt; text-indent: -18pt;\"><!--[if !supportLists]--><b><span style=\"font-family: \"Segoe UI\", sans-serif;\">9.<span style=\"font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: \"Times New Roman\";\">    </span></span><!--[endif]--><span style=\"font-family: \"Segoe UI\", sans-serif;\">Regional Director E.S.I. Corporation and Another v. Francis De\r\nCosta and Another 1993 Supp. (4) SCC 100 </span><span style=\"font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></b></p><p style=\"margin-top: 0cm; margin-right: 0cm; margin-left: 36pt; text-indent: -18pt;\"><!--[if !supportLists]--><b><span style=\"font-family: \"Segoe UI\", sans-serif;\">10.<span style=\"font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: \"Times New Roman\";\"> </span></span><!--[endif]--><span style=\"font-family: \"Segoe UI\", sans-serif;\">General Manager,B.E.S.T. Undertaking, Bombay v. Mrs. Agnes AIR\r\n1964 SC 193 </span><span style=\"font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></b></p><p>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n</p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><o:p><b> </b></o:p></p><p><br></p>', 'e01444a87f4723ce951006863462f1c5.jpg', '045d3025e5922e11a9e55c0a9d2c3e57.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-02', 1, '', '', '2021-08-19 22:37:45', '2021-08-19 22:38:27'),
(965, 'HxWqiN6PObgRefggPRENF1Gnl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Local Bodies. Delimitation of constituencies or allotment of seats including preparation of electoral rolls not being part of election process can be challenged in Writ Petition. Karnataka High Court.  ', '<p><b>Lingappa Goudoru and others vs The State of Karnataka and others.&nbsp;</b></p><p><b>Writ Petition 13902 of 2021 decided on 19 August 2021.</b></p><p><b>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/402011/1/WP13944-21-19-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/402011/1/WP13944-21-19-08-2021.pdf</a></b></p><p><b>5. Prior to the notification dated 15-09-2015, the Raichur Zilla Panchayat, in the year 2010, a year before 2011 census, consisted of 35 seats and in terms of the notification dated 15-09-2015 the seats were increased from 35 to 38 pursuant to delimitation notification. The aforesaid delimitation in the year 2015 was on the basis of 211 census.</b></p><p><b>6. The issue in the present petition is with regard to subsequent delimitation notification impugned herein. The impugned notification alters the number of seats that is existing in Raichur Zilla Panchayat from 38 to 42. It is this act that is called in question by the petitioners.&nbsp;</b></p><p><b>The learned Senior Counsel would submit that the&nbsp; act&nbsp; of de-limitation by the Election Commission is without jurisdiction as it is mandated under the statute that is shall be on the basis of census. Admittedly, no census having taken place in the years 2020-2021 and on the basis of last preceding census the Election Commission had already undertaken the exercise of delimitation in the year 2015 the present Act without a fresh census becomes an act without jurisdiction is the emphatic submission of the learned Senior Counsel for the petitioners.</b></p><p><b>11. Whether the writ petition questioning the process of delimitation by the Election Commission is maintainable?</b></p><p><b>The contention of the learned counsel appearing for the Election Commission is that the writ petition calling in question the process of delimitation is not maintainable in terms of the bar under Article 243-O of the Constitution of India.&nbsp;</b></p><p><b>13.<span style=\"white-space:pre\">	</span>I decline to accept&nbsp; this submission in the&nbsp; light&nbsp; of the interpretation of the Article by the&nbsp; Apex Court in&nbsp; two of its judgments –in the case of <i>Bharati Reddy vs State of Karnataka&nbsp;</i></b><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>(2018) 12 SCC 61</i></span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;and&nbsp;</span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in the case of <i>State of Goa and another vs Fouzia Imtiaz Shaikh and another&nbsp;</i></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>2021 SCC OnLine SC 211.</i></b></p><p><b>The Apex Court clearly holds that any challenge to the order relating to delimitation or allotment of seats including preparation of electoral rolls not being part of election process can also be challenged in the manner provided by the statutory provisions dealing with delimitation and allotment of seats to such constituencies. The&nbsp; only bar&nbsp; is against commencement, subsistence and&nbsp; conclusion of elections, commencement to mean issuance of calendar of events. It is also to be noticed&nbsp; that the Apex Court in the case of Bharathi Reddy in effect holds that Article 243- O of the Constitution of India cannot control Article 226 of the Constitution of India, but&nbsp; holds the entertainment of petitions to be discretionary. Exercising such discretion and on the submissions&nbsp; of the respective counsel, I proceed to consider the issue on its merit.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '64e247f540647c061636b5479ec9c9c1.jpg', 'a6dc829f3feabd3b1a76e8bceb10e332.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-19', 1, '', '', '2021-08-20 01:33:10', '2021-08-20 01:33:10'),
(966, 'III4Or1NskQKeps5s9WuIhgcT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Eagleton Golf Club\'s illegal occupation of valuable government lands. Karnataka High Court upholds demand of Rs. 982 crores by government. ', '<p><b>M/s. Chamundeswari Build Tech Private Limited vs Government of Karnataka and others.&nbsp;</b></p><p><b>Writ Petition 38312 of 2017 decided on 17 August 2021.</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/402012/1/WP38312-17-17-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/402012/1/WP38312-17-17-08-2021.pdf</a></b></p><p><b>2.<span style=\"white-space:pre\">	</span>The petitioner is before this Court praying for quashing of the proceedings of the State Government dated 03.08.2017 vide Annexure-A, whereby the Government has communicated the decision of the Cabinet Sub-Committee, which has assessed the market value of 77 acres 19 guntas of land, at the rate of Rs.982,07,77,480/- and also to quash the Endorsement bearing No.RDCO/LND/CR/109-2009-10 dated 07.08.2017, vide Annexure-B to the writ petition, whereby the Deputy Commissioner, Ramanagara, has called upon the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner to deposit the amount, less the amount already deposited and further notified the petitioner to pay the same within one month failing which, the petitioner’s occupation would be concluded as unauthorised occupation and action will be initiated to take possession of the lands. The petitioner has further prayed for writ of mandamus and thereby direct the respondents to accept the amount of Rs.12.35 Crores as market value for 77 acres 19 guntas of land&nbsp;</b></p><p><b>31. From a reading of the above, in the first prayer, the petitioner has sought for quashing of the proceedings issued by the 3rd respondent pursuant to the recommendation of the Cabinet Sub-Committee determining the market value of the encroached lands measuring 77 Acres, 19 Guntas of various villages in Bidadi Hobli.</b></p><p><b>31.1<span style=\"white-space:pre\">	</span>By the second prayer, the petitioner is seeking for quashing of the endorsement issued by the 4th respondent the jurisdictional Deputy Commissioner, calling upon the petitioner to deposit the amount demanded under Annexure-A and further notifying the petitioner that in the event of default by the petitioner to deposit the said sums within the time stipulated, the authority would be constrained to initiate proceedings to refund the amount deposited by the petitioner and initiate proceedings to take possession of the Government lands.</b></p><p><b>31.2<span style=\"white-space:pre\">	</span>Thirdly, the petitioner seeks for a mandamus or any appropriate writ of like nature and thereby, direct the respondents to confirm the accepted amount of Rs.12.35 crores received from the petitioner as the market value for the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">77 Acres 19 Guntas of Government land in pursuance to the order of the Hon’ble Apex Court dated 16.01.2014 passed in&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">C.A. No.5181/2003 as per the decision of the earlier Sub- Committee dated 21.01.2015.</b></p><p><b>33.3<span style=\"white-space:pre\">	</span>If the law requires that the Sub-Committee ought to take the consent of the Cabinet, it cannot be gainfully argued otherwise. Further, if the law enables the&nbsp; Chief Minister to call for and peruse any files, it cannot be argued&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that it tantamount’s to interference or tantamount’s to an external dictation or extraneous reason.</b></p><p><b>33.4<span style=\"white-space:pre\">	</span>It is not the case of the petitioner that either the Cabinet of Ministers or the Chief Minister has suggested any particular price. If that be the admitted position, then the allegation has no basis and is rendered irrelevant. That apart, a unique and striking facet of the litigation by the petitioner is the absence of any market price calculated and quoted by it.</b></p><p><b>34. Though the petitioner has been raising a hue &amp; cry about the five reports by the Deputy Commissioner and has filed reams of papers before the Cabinet Sub-Committee including the two volumes of papers filed before this Court, a detailed perusal of the papers would reveal that the petitioner has nowhere ever even attempted to calculate and quote the market price, which according to it is the correct market price.</b></p><p><b>34.3<span style=\"white-space:pre\">	</span>...... The market price or the market value is interpreted to mean the price a willing purchaser (petitioner) is willing to pay and a willing seller (State) is willing to accept.</b></p><p><b>35. That apart, it is not in doubt that the petitioner has been in illegal possession and enjoyment of the Government lands for well over two decades and under the relevant statutes such occupation entails consequences like fine, penalty, etc.</b></p><p><b>36. In view of the above discussion, the challenge to the impugned proceedings at Annexure-A is required to be negatived and accordingly, the first prayer is liable to be rejected and is accordingly, rejected.</b></p><p><b>47.<span style=\"white-space:pre\">	</span>Before parting, this Court endeavours to record its opinion with regard to the manner in which the petitioner has been resorting to litigation to continue its illegal hegemony over Government’s property and that too for decades together. The petitioner can by, no stretch of imagination, be labeled as a bonafide litigant. The petitioner being a commercial entity and being well aware of its rights and reciprocal duties, has been deliberately using litigation as an instrument to give a cover of respectability to its illegal acts. Petitioner having acquired huge tracts of private land and being well versed with the manner and method in which title over immovable properties can be acquired cannot be permitted to don a saintly garb and project innocence.</b></p><p><b>49.<span style=\"white-space:pre\">	</span>The writ petition being wholly devoid of merits is accordingly dismissed.</b></p>', 'af5f9172315d6ed79134e1fb73d90873.jpg', 'eabb2d7fde7f0acf91f4c801799604fc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-17', 1, '', '', '2021-08-20 02:14:11', '2021-08-20 02:14:11');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(967, 'e5TNnGeYi8EHlrHVZSFgN36zV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Reservation. Person who has been a resident of integrated State where his caste is identified as SC or ST, upon bifurcation of the State by way of enactment, can NOT be considered as migrant to the successor State. Supreme Court. ', '<p><b>Pankaj Kumar vs State of Jharkhand and others. </b></p><p><b>Civil Appeal 4864 of 2021 decided on 19 August 2021.</b></p><p><b>Justice Umesh Lalit and Justice Ajay Rastogi</b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/24407/24407_2020_32_1501_29409_Judgement_19-Aug-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/24407/24407_2020_32_1501_29409_Judgement_19-Aug-2021.pdf</a></b></p><p><b>46. The question that emerges for our consideration in the instant\r\nappeals is whether a person, who has been a resident of the State of\r\nBihar and where the Constitution(Scheduled Castes)/(Scheduled\r\nTribes) Order, 1950 identifying castes/tribes is issued extending the\r\nbenefit to members of SC/ST throughout the integrated State of\r\nBihar which was later on bifurcated by virtue of a statutory\r\ninstrument, i.e., the Act, 2000, into two successor States (State of\r\nBihar and State of Jharkhand) with their rights and privileges to the\r\nextent being protected by legislative enactment under the provisions\r\nof the Act 2000, could still be considered to be a migrant to the\r\nsuccessor State of Jharkhand depriving them of their privileges and\r\nbenefits to which the incumbent or their lineal descendants has\r\navailed from the very inception of the Presidential Order 1950 in the\r\nintegrated State of Bihar.</b></p><p><b>53. It will be highly unfair and pernicious to their interest if the\r\nbenefits of reservation with privileges and benefits flowing thereof\r\nare not being protected in the State of Jharkhand after he is\r\nabsorbed by virtue to Section 73 of the Act 2000 that clearly\r\npostulates not only to protect the existing service conditions but the\r\nbenefit of reservation and privileges which he was enjoying on or\r\nbefore the appointed day, i.e. 15th November, 2000 in the State of\r\nBihar not to be varied to his disadvantage after he became a\r\nmember of service in the State of Jharkhand.</b></p><p><b>55. In our considered view, such of the employees who are\r\nmembers of the SC/ST/OBC whose caste/tribe has been notified by\r\nan amendment to the Constitution(Scheduled Castes)/(Scheduled\r\nTribes) Order 1950 under Vth and VIth Schedule to Sections 23 and\r\n24 of the Act 2000 or by the separate notification for members of\r\nother backward class category, benefit of reservation including\r\nprivileges and benefits flowing thereof, shall remain protected by\r\nvirtue of Section 73 of the Act 2000 for all practical purposes which can be claimed (including by their wards) for participation in public\r\nemployment.</b></p><p><b>56. It is made clear that person is entitled to claim benefit of\r\nreservation in either of the successor State of Bihar or State of\r\nJharkhand, but will not be entitled to claim benefit of reservation\r\nsimultaneously in both the successor States and those who are\r\nmembers of the reserved category and are resident of the successor\r\nState of Bihar, while participating in open selection in State of\r\nJharkhand shall be treated to be migrants and it will be open to\r\nparticipate in general category without claiming the benefit of\r\nreservation and vice-versa.<br></b></p><p><b> </b><br></p>', 'ee59d47f2eefc88e814042316b7bd461.jpg', 'eed12bf5c5ac0beacfe81414cab07fb8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-19', 1, '', '', '2021-08-20 03:04:38', '2021-08-20 03:05:43'),
(968, 'OSRFe5ovDgHf5pBDpPHmmpZXk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Reservation. Bifurcation of State creating new State. Person who has been a resident of integrated State, where his caste is identified as SC or ST, can claim reservation in either of the States and not in both States. Supreme Court. ', '<h4 style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\">Pankaj Kumar vs State of Jharkhand and others. <br></font><font color=\"#222222\" face=\"mainFontOP\">Civil Appeal 4864 of 2021 decided on 19 August 2021.<br></font><font color=\"#222222\" face=\"mainFontOP\">Justice Umesh Lalit and Justice Ajay Rastogi<br></font><font color=\"#222222\" face=\"mainFontOP\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/24407/24407_2020_32_1501_29409_Judgement_19-Aug-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/24407/24407_2020_32_1501_29409_Judgement_19-Aug-2021.pdf</a><br></font></h4><h4 style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><br></font><font color=\"#222222\" face=\"mainFontOP\">46. The question that emerges for our consideration in the instant appeals is whether a person, who has been a resident of the State of Bihar and where the Constitution(Scheduled Castes)/(Scheduled Tribes) Order, 1950 identifying castes/tribes is issued extending the benefit to members of SC/ST throughout the integrated State of Bihar which was later on bifurcated by virtue of a statutory instrument, i.e., the Act, 2000, into two successor States (State of Bihar and State of Jharkhand) with their rights and privileges to the extent being protected by legislative enactment under the provisions of the Act 2000, could still be considered to be a migrant to the successor State of Jharkhand depriving them of their privileges and benefits to which the incumbent or their lineal descendants has availed from the very inception of the Presidential Order 1950 in the integrated State of Bihar.<br></font></h4><h4 style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><br></font><font color=\"#222222\" face=\"mainFontOP\">53. It will be highly unfair and pernicious to their interest if the benefits of reservation with privileges and benefits flowing thereof are not being protected in the State of Jharkhand after he is absorbed by virtue to Section 73 of the Act 2000 that clearly postulates not only to protect the existing service conditions but the benefit of reservation and privileges which he was enjoying on or before the appointed day, i.e. 15th November, 2000 in the State of Bihar not to be varied to his disadvantage after he became a member of service in the State of Jharkhand.<br></font></h4><h4 style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><br></font><font color=\"#222222\" face=\"mainFontOP\">55. In our considered view, such of the employees who are members of the SC/ST/OBC whose caste/tribe has been notified by an amendment to the Constitution(Scheduled Castes)/(Scheduled Tribes) Order 1950 under Vth and VIth Schedule to Sections 23 and 24 of the Act 2000 or by the separate notification for members of other backward class category, benefit of reservation including privileges and benefits flowing thereof, shall remain protected by virtue of Section 73 of the Act 2000 for all practical purposes which can be claimed (including by their wards) for participation in public employment.<br></font></h4><h4 style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><b><font color=\"#222222\" face=\"mainFontOP\"><br></font><font color=\"#222222\" face=\"mainFontOP\">56. It is made clear that person is entitled to claim benefit of reservation in either of the successor State of Bihar or State of Jharkhand, but will not be entitled to claim benefit of reservation simultaneously in both the successor States and those who are members of the reserved category and are resident of the successor State of Bihar, while participating in open selection in State of Jharkhand shall be treated to be migrants and it will be open to participate in general category without claiming the benefit of reservation and vice-versa.</font></b></h4>', 'f45baeb0964c7f4eae667cdac19fda99.jpg', '6f05007398aa034ccb54b6a435df2f09.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-19', 1, '', '', '2021-08-20 03:21:21', '2021-08-20 03:23:35'),
(970, 'r4Ye8rqTTu35PBYhxX4Uql6Z2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Adoptions and Maintenance Act, 1956. Adoption of a person above the age of 15 years is permissible only if there is custom or usage applicable to the parties which permits such adoption. Karnataka High Court. ', '<p><b>Jagadayya vs Kamalavva and another&nbsp;</b></p><p><b>Regular Second Appeal 101028 of 2019 decided on 13 August 20121</b></p><p><b>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/402107/1/RSA101028-19-13-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/402107/1/RSA101028-19-13-08-2021.pdf</a></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. Clause ( iv) of Section 10 of the Act, stipulates that even if, the child is above&nbsp; the age of 15 years and&nbsp; if,&nbsp; custom&nbsp; or&nbsp; usage permits to take adoption of a&nbsp; child&nbsp; who&nbsp; is above the age of 15 years can be taken in&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">adoption. Therefore, as per this provision&nbsp; of law, the general rule is that the child&nbsp; who&nbsp; is more than 15 years cannot&nbsp; be&nbsp; taken&nbsp; in adoption. The exception is that upon&nbsp; proving&nbsp; the custom or usage a child&nbsp; above&nbsp; the&nbsp; age&nbsp; of 15 years can also be taken in adoption.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">....the appellant has&nbsp; not produced any evidence to&nbsp; show&nbsp; that&nbsp; there was a custom or usage in his family&nbsp; or&nbsp; in&nbsp; his&nbsp; locality or in his region to&nbsp; take a&nbsp; child even if&nbsp; the child is above the&nbsp; age&nbsp; of&nbsp; 15&nbsp; years. ...</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in the case of </b><b>Kondiba Rama Papal Alias Shrike vs Narayan Kondiba Papal AIR 1991 SC 1180 </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">it&nbsp; is&nbsp; the principle of law laid down that unless there is a custom or usage applicable to&nbsp; the&nbsp; parties,&nbsp; which permits persons who have completed the age of 15 years being taken on&nbsp; adoption and&nbsp; held that in Bombay State a person may be adopted at any age and the custom is judicially recognized in Bombay State&nbsp; as&nbsp; regards adoption of child at any&nbsp; age.&nbsp; Following&nbsp; this, this&nbsp; Court&nbsp; in&nbsp; the&nbsp; case&nbsp; of&nbsp;&nbsp;</b><b>Rambaddu Lamani vs Revanasiddayya Channaveerayya Muddabihalmath ILR 2010 Kar 5694&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">had held that in Bhagewadi&nbsp; taluk, in Bijapur District there was a custom to take adoption of a child even though he is more&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">than 15 years old. In both the above stated cases, there are no facts&nbsp; and&nbsp; evidences revealed that there was a proof of custom or usage regarding taking&nbsp; adoption of&nbsp; a&nbsp; child more than 15 years old.&nbsp; It&nbsp; is&nbsp; generally observed that in this region&nbsp; there is&nbsp; a&nbsp; custom&nbsp; to take adoption of a child above the age of fifteen years.</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'e80d6bffb923a2358c92a37a855b0ec1.jpg', '5ee66644694e89844df3eb99d4dc8a6f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-13', 1, '', '', '2021-08-24 01:39:14', '2021-08-24 01:39:14'),
(2673, 'aVozOBbe9iHM7zs1Z9FMdzr1g', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Against the order of acquittal passed by the first appellate court, appeal to High Court under Section 378(4) Cr.P.C is maintainable. Karnataka High Court.', '<p><span style=\"font-weight: bolder;\">Muniraju vs G. Nagaraju</span></p><p><span style=\"font-weight: bolder;\">Criminal Appeal 309 of 2011 decided on 10 August 2021.</span></p><p><span style=\"font-weight: bolder;\">Justice H.P. Sandesh.</span></p><p><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">This appeal is filed under Section 378 (4) of the Code of Criminal Procedure, 1973 challenging the judgment dated 30.11.2010 passed by the Additional District and Sessions&nbsp; Judge, Fast Track Court-V, Bengaluru Rural District, Bengaluru, allowing Crl.A.No.23/2009 and setting aside the order of conviction dated 20.02.2009 passed in C.C.No.160/2007 by the Principal Civil Judge (Jr.Dn) &amp; JMFC., Hoskote, acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘NI Act’ for short) by the Appellate Court reversing the conviction of the Trial Court.</span><br></p><p><span style=\"font-weight: bolder;\">Whether the appeal lies against the order of acquittal passed by the First Appellate Court or whether the revision lies as contended by the learned counsel for the respondent?</span></p><p><span style=\"font-weight: bolder;\">20. Now, coming to the provisions invoked by the complainant before this Court, Section 378 and on perusal of Section 378, it is clear that appeal in case of acquittal and proviso of Section 378 is very clear from an order of acquittal passed by a Magistrate in respect of a cognizable and non- bailable offence, the District Magistrate may in any case, direct the Public Prosecutor to present an appeal to the Court of Session.</span></p><p><span style=\"font-weight: bolder;\">21. Section 378(b) says that the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court and proviso (2) also with regard to if an offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 or by any other agency empowered to make investigation into an offence direct the Public Prosecutor to present the appeal.</span></p><p><span style=\"font-weight: bolder;\">22. The proviso of Section 378 is very clear that no appeal to the High Court under sub-section (1) or sub-section&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(2) shall be entertained except with a view of the High Court.&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The proviso of Section (4) is very clear that, if such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present an appeal to the High Court. The proviso of Section (4) is very clear regarding an order of acquittal passed in any case instituted upon the complaint prefer an appeal with special leave to appeal from the order of acquittal and the present appeal is filed.</span></p><p><span style=\"font-weight: bolder;\">23. Having perused the proviso of Section 401 particularly, sub-clause (4), it is very clear that, where under this Code an appeal lie and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.</span></p><p><span style=\"font-weight: bolder;\">24. On reading of proviso of Section 401, there is a clear bar, where an appeal lies under the code and no appeal is brought, no proceedings by way of revision shall be entertained. Hence, the very contention of the learned counsel for the respondent that the revision lies and it amounts to a second appeal cannot be accepted.&nbsp;</span></p>', '7bddc34bcb4e7dcf9aeed400b242260a.JPG', '7e5d610d3d571c4a18748b5ce77fe9ab.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-14', 1, '', '', '2023-02-14 13:33:24', '2023-02-14 13:33:24'),
(972, 'Sglrx3aPEqf2oWn70S8JYKxF8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Section 319. Power to proceed against other persons appearing to be guilty of offence. Supreme Court summarizes ambit of the powers of the Court ', '<p><b>Manjeet Singh vs State of Haryana and others.&nbsp;</b></p><p><b>Criminal Appeal 875 of 2021 decided on 24 August 2021</b></p><p><b>Justice&nbsp;</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Dr. Dhananjaya Y. Chandrachud and Justice M. R. Shah</b>&nbsp;</span></p><p><span style=\"font-weight: bolder;\">Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2021/13113/13113_2021_34_1503_29489_Judgement_24-Aug-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/13113/13113_2021_34_1503_29489_Judgement_24-Aug-2021.pdf</a></span><b><br></b></p><p><b>13. The ratio of the aforesaid decisions on the scope and ambit of\r\nthe powers of the Court under Section 319 CrPC can be summarized\r\nas under:</b></p><p><b>(i) That while exercising the powers under Section 319\r\nCrPC and to summon the persons not charge-sheeted, the\r\nentire effort is not to allow the real perpetrator of an offence\r\nto get away unpunished;\r\n</b></p><p><b>(ii) for the empowerment of the courts to ensure that the\r\ncriminal administration of justice works properly;\r\n</b></p><p><b>(iii) the law has been properly codified and modified by the\r\nlegislature under the CrPC indicating as to how the courts\r\nshould proceed to ultimately find out the truth so that the\r\ninnocent does not get punished but at the same time, the\r\nguilty are brought to book under the law;\r\n</b></p><p><b>(iv) to discharge duty of the court to find out the real truth and to\r\nensure that the guilty does not go unpunished;\r\n</b></p><p><b>(v) where the investigating agency for any reason does not\r\narray one of the real culprits as an accused, the court is not\r\npowerless in calling the said accused to face trial;<br></b></p><p><b>(vi) Section 319 CrPC allows the court to proceed against any\r\nperson who is not an accused in a case before it;\r\n</b></p><p><b>(vii) the court is the sole repository of justice and a duty is cast\r\nupon it to uphold the rule of law and, therefore, it will be\r\ninappropriate to deny the existence of such powers with the\r\ncourts in our criminal justice system where it is not\r\nuncommon that the real accused, at times, get away by\r\nmanipulating the investigating and/or the prosecuting\r\nagency;\r\n</b></p><p><b>(viii) Section 319 CrPC is an enabling provision empowering the\r\ncourt to take appropriate steps for proceeding against any\r\nperson not being an accused for also having committed the\r\noffence under trial;\r\n</b></p><p><b>(ix) the power under Section 319(1) CrPC can be exercised at\r\nany stage after the charge-sheet is filed and before the\r\npronouncement of judgment, except during the stage of\r\nSections 207/208 CrPC, committal, etc. which is only a pretrial stage intended to put the process into motion;<br></b></p><p><b>(x) the court can exercise the power under Section 319 CrPC\r\nonly after the trial proceeds and commences with the\r\nrecording of the evidence;\r\n</b></p><p><b>(xi) the word “evidence” in Section 319 CrPC means only such\r\nevidence as is made before the court, in relation to\r\nstatements, and as produced before the court, in relation to\r\ndocuments;\r\n</b></p><p><b>(xii) it is only such evidence that can be taken into account by the\r\nMagistrate or the court to decide whether the power under\r\nSection 319 CrPC is to be exercised and not on the basis of\r\nmaterial collected during the investigation;\r\n</b></p><p><b>(xiii) if the Magistrate/court is convinced even on the basis of\r\nevidence appearing in examination-in-chief, it can exercise\r\nthe power under Section 319 CrPC and can proceed against\r\nsuch other person(s);\r\n</b></p><p><b>(xiv) that the Magistrate/court is convinced even on the basis of\r\nevidence appearing in examination-in-chief, powers under\r\nSection 319 CrPC can be exercised;\r\n</b></p><p><b>(xv) that power under Section 319 CrPC can be exercised even\r\nat the stage of completion of examination-in-chief and the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">court need not has to wait till the said evidence is tested on\r\ncross-examination;\r\n</span></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(xvi) even in a case where the stage of giving opportunity to the\r\ncomplainant to file a protest petition urging upon the trial\r\ncourt to summon other persons as well who were named in\r\nFIR but not implicated in the charge-sheet has gone, in that\r\ncase also, the Court is still not powerless by virtue of Section\r\n319 CrPC and even those persons named in FIR but not\r\nimplicated in the charge-sheet can be summoned to face the\r\ntrial, provided during the trial some evidence surfaces\r\nagainst the proposed accused (may be in the form of\r\nexamination-in-chief of the prosecution witnesses);\r\n</b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(xvii) while exercising the powers under Section 319 CrPC the\r\nCourt is not required and/or justified in appreciating the\r\ndeposition/evidence of the prosecution witnesses on merits\r\nwhich is required to be done during the trial.</b></span></p><p><br></p>', 'd9f9c82be079272f9706a8f372e414e1.jpg', 'b8219dbc1c0db585788e04be261fd825.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-24', 1, '', '', '2021-08-25 02:21:16', '2021-08-25 02:21:16'),
(974, 'pJgJd8p2BUxMoc9NQs7U7fZ6P', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Courts exercising judicial review cannot second guess the suitability of a candidate for any public office or post. State employer has an element of latitude or choice on who should enter its service. Supreme Court.  ', '<p><b>Commissioner of Police vs Raj Kumar.</b></p><p><b>Civil Appeal 4960 of 2021 and connected matters decided on 25 August 2021</b></p><p><b>Justice K.M. Joseph and Justice S. Ravindra Bhat.&nbsp;</b></p><p><b>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2014/13165/13165_2014_40_1501_29595_Judgement_25-Aug-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2014/13165/13165_2014_40_1501_29595_Judgement_25-Aug-2021.pdf</a></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">26. Courts exercising judicial review cannot second guess the suitability of a\r\ncandidate for any public office or post. Absent evidence of malice or mindlessness (to\r\nthe materials), or illegality by the public employer, an intense scrutiny on why a\r\ncandidate is excluded as unsuitable renders the courts\' decision suspect to the charge\r\nof trespass into executive power of determining suitability of an individual for\r\nappointment. This was emphasized by this court, in M.V. Thimmaiah v. Union Public\r\nService Commission (2008) 2 SCC 119\r\nheld as follows:</b><br></p><p><b><i>“21. Now, comes the question with regard to the selection of the candidates.\r\nNormally, the recommendations of the Selection Committee cannot be challenged\r\nexcept on the ground of mala fides or serious violation of the statutory rules. The\r\ncourts cannot sit as an Appellate Authority to examine the recommendations of\r\nthe Selection Committee like the court of appeal. This discretion has been given to\r\nthe Selection Committee only and courts rarely sit as a court of appeal to examine\r\nthe selection of the candidates nor is the business of the court to examine each\r\ncandidate and record its opinion...&nbsp;<br></i></b></p><p><b><i>30. We fail to understand how the Tribunal can sit as an Appellate Authority to\r\ncall for the personal records and constitute Selection Committee to undertake this\r\nexercise. This power is not given to the Tribunal and it should be clearly\r\nunderstood that the assessment of the Selection Committee is not subject to\r\nappeal either before the Tribunal or by the courts. One has to give credit to the\r\nSelection Committee for making their assessment and it is not subject to appeal.\r\nTaking the overall view of ACRs of the candidates, one may be held to be very\r\ngood and another may be held to be good. If this type of interference is permitted\r\nthen it would virtually amount that the Tribunals and the High Courts have\r\nstarted sitting as Selection Committee or act as an Appellate Authority over the\r\nselection.”</i><br></b></p><p><b>27. In Dalpat Abasaheb Solunke v Dr. B.S. Mahajan&nbsp;(1990) 1 SCC 305 this court held that<br></b></p><p><b><i>“12. ... it is not the function of the court to hear appeals over the decisions of\r\nthe Selection Committees and to scrutinise the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided\r\nby the duly constituted Selection Committee which has the expertise on the\r\nsubject. The court has no such expertise. ... in the present case the University\r\nhad constituted the Committee in due compliance with the relevant statutes.\r\nThe Committee consisted of experts and it selected the candidates after going\r\nthrough all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so-called comparative\r\nmerits of the candidates as assessed by the court, the High Court went wrong\r\nand exceeded its jurisdiction.”</i>&nbsp;<br></b></p><p><b>28. Again, in Union Public Service Commission v. M. Sathiya Priya (2018) 15 SCC 796 it was\r\niterated that</b></p><p><b><i>“The question as to how the categories are assessed in light of the relevant\r\nrecords and as to what norms apply in making the assessment, is exclusively to be\r\ndetermined by the Selection Committee. Since the jurisdiction to make selection\r\nas per law is vested in the Selection Committee and as the Selection Committee\r\nmembers have got expertise in the matter, it is not open for the courts generally to\r\ninterfere in such matters except in cases where the process of assessment is\r\nvitiated either on the ground of bias, mala fides or arbitrariness. It is not the\r\nfunction of the court to hear the matters before it treating them as appeals over\r\nthe decisions of the Selection Committee and to scrutinise the relative merit of the\r\ncandidates. The question as to whether a candidate is fit for a particular post or\r\nnot has to be decided by the duly constituted expert body i.e. the Selection\r\nCommittee.”</i></b></p><p><b>29. Public service - like any other, pre-supposes that the state employer has an\r\nelement of latitude or choice on who should enter its service. Norms, based on\r\nprinciples, govern essential aspects such as qualification, experience, age, number of\r\nattempts permitted to a candidate, etc. These, broadly constitute eligibility conditions\r\nrequired of each candidate or applicant aspiring to enter public service. Judicial\r\nreview, under the Constitution, is permissible to ensure that those norms are fair and\r\nreasonable, and applied fairly, in a non-discriminatory manner. However, suitability is\r\nentirely different; the autonomy or choice of the public employer, is greatest, as long\r\nas the process of decision making is neither illegal, unfair, or lacking in bona fides.&nbsp;</b></p><p><b>30. The High Court’s approach, evident from its observations about the youth and\r\nage of the candidates, appears to hint at the general acceptability of behaviour which\r\ninvolves petty crime or misdemeanour. The impugned order indicates a broad view,\r\nthat such misdemeanour should not be taken seriously, given the age of the youth and\r\nthe rural setting. This court is of opinion that such generalizations, leading to\r\ncondonation of the offender’s conduct, should not enter the judicial verdict and\r\nshould be avoided. Certain types of offences, like molestation of women, or trespass\r\nand beating up, assault, causing hurt or grievous hurt, (with or without use of\r\nweapons), of victims, in rural settings, can also be indicative of caste or\r\nhierarchy-based behaviour. Each case is to be scrutinized by the concerned public\r\nemployer, through its designated officials- more so, in the case of recruitment for the\r\npolice force, who are under a duty to maintain order, and tackle lawlessness, since\r\ntheir ability to inspire public confidence is a bulwark to society’s security.</b>&nbsp;<b><br></b><br></p>', '92b1824a20f64d8a1713154452a478d6.JPG', 'fdbd0a85c94dbea167d5d322286cac56.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-25', 1, '', '', '2021-08-26 18:31:06', '2021-08-26 18:31:06'),
(975, 'H53Vy01jkjLm2JzKO6ZEhpBPR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Section 191(1)(b). Merely because complainant files protest petition and gives statement, the Magistrate ought not be swayed away by such protest petition. There must be application of mind. Karnataka High Court.', '<p><b>Nagaraj Rao C.H. vs State by SPP</b></p><p><b>Criminal Petition 8922 of 2017 decided on 17 August 2021.</b></p><p><b>Judgment Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/403027/1/CRLP8922-17-17-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/403027/1/CRLP8922-17-17-08-2021.pdf</a></b></p><p><b>13. The order that sets criminal trial in motion by taking cognizance under Section 191(1)(b) of the Cr.P.C. should bear the stamp of application of mind, more so, in the cases like the subject petition, where an investigation is ordered on the complaint </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">registered under Section 200 of the Cr.P.C. and a final report is filed by the Police after investigation.  Once the final report is filed, if it   is a ‘B’ report, it is in favour of the accused. The complainant who would file a protest petition against acceptance of such ‘B’ report, on registration of the protest petition against ‘B’ report, sworn statement of the complainant would be taken.</b></p><p><b>14....Setting the criminal trial in motion cannot become a matter of course or done  as a routine exercise.  The  order must bear application of mind as to why ‘B’ report is not acceptable to the learned Magistrate and why the evidence and the complaint of the complainant is overwhelming.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15.<span style=\"white-space:pre\">	</span>Application of judicious mind is demonstrable only in the order the learned Magistrate would make, for the order to demonstrate application of mind it must contain reasons, as recording of reasons is the only way that one can construe such application of mind. Reasons are the live links between the mind of the decision taker, to the controversy in question and the decision arrived at. Reason and application of mind are impregnable for a judicial order to sustain the scrutiny of law. Reasons in every circumstances need not be elaborate, but nevertheless should bear application of mind.</b><br></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16.<span style=\"white-space:pre\">	</span>Not for nothing an investigation is ordered and the Police would conduct investigation and file a ‘B’ report. There may be  cases where a ‘B’ report would be filed without proper investigation, which would require trial on a protest petition being filed by the complainant or there may be cases where the complainant would be disgruntled and file a protest petition. Therefore, merely because a complainant files a protest petition and gives a statement with regard to his protest petition, the learned Magistrate ought not be swayed away by such protest petition. It is incumbent upon the learned Magistrate to consider ‘B’ report, protest petition and the </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">evidence on record and record his finding as to why he rejects the  ‘B’ report and accepts the protest petition.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">17.<span style=\"white-space:pre\">	</span>Application of judicious mind by the learned Magistrate while setting the criminal trial in motion, in cases particularly where protest petition is filed against the ‘B’ report by the complainant, becomes sine qua non, failing which, the order taking cognizance notwithstanding the ‘B’ report, becomes a  routine  exercise. Reasons to be recorded in such circumstances need not  be  elaborate but must bear application of mind.</b><br></p><div><br></div>', '12f321f6a28d6b9be9ed32f7bbf88ffa.jpg', '0c2e7c4f94e372fb3cdef3f0e906769b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-17', 1, '', '', '2021-08-26 22:27:54', '2021-08-26 22:38:43'),
(976, 'US0jHfE06IDmKMN7KBbows64R', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. Karnataka High Court deprecates mushrooming of registration of criminal cases by handiwork of disgruntled complainants to score against innocent persons in purely civil matters. Asks Magistrates to be cautious while taking cognizance.   ', '<p><b>Nagaraj Rao C.H. vs State by SPP</b></p><p><b>Criminal Petition 8922 of 2017 decided on 17 August 2021.</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/403027/1/CRLP8922-17-17-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/403027/1/CRLP8922-17-17-08-2021.pdf</a></b></p><p><b>20. It is also germane to take note of mushrooming of registration of criminal cases by handiwork of certain disgruntled complainants as is found in the case at hand. The observations of the Apex Court in the case of Chandrapal Singh and others vs Maharaj Singh and another </b><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">AIR 1982 SC 1238</span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">, in the circumstances, is apposite. </b></p><p><b><i>“14. That leaves for our consideration the alleged offence under Section 199. Section 199 provides punishment for making a  false statement in a declaration which is by law receivable in evidence. We will assume that the affidavits filed in a proceeding for allotment of premises before the Rent Control Officer are receivable as evidence. It is complained that certain averments in these affidavits are false though no specific averment is singled  out  for  this purpose in the complaint. When it is alleged that a false statement has been made in a declaration which is receivable as evidence  in  any Court of Justice or before any public servant or other person, the statement alleged to be false has to be set out and its alleged falsity with reference to the truth found in  some  document has to be referred to pointing out that the two situations cannot  co-exist,  both  being attributable to the same person and, therefore, one to his knowledge must be false. Rival contentions set out in affidavits accepted or rejected by courts with reference to  onus  probandi do not furnish foundation for a charge under Section 199, I.P.C. To illustrate the point, appellant 1 Chandrapal Singh alleged  that  he was in possession of one room forming part of premises No. 385/2. The learned Additional District Judge after scrutinising all  rival affidavits did not accept this contention. It thereby does not become false.  The  only  inference is that the statement made by Chandrapal Singh did not inspire confidence looking to other relevant evidence in the case. Acceptance or rejection of evidence by  itself  is  not a sufficient yardstick to dub the one  rejected as false. Falsity can be  alleged  when  truth  stands out glaringly and to the knowledge of the person who is making  the  false  statement.  Day in and day out, in  courts  averments  made  by one set of witnesses  are  accepted  and  the counter averments are rejected. If in  all  such cases complaints under Section 199, I.P.C. are to be filed not only there will open up floodgates of litigation but it would unquestionably  be  an abuse of the process of the Court. The learned Counsel for the respondent told us that a tendency to perjure is very much on the increase and unless by firm action courts do not put their foot down heavily upon such persons the whole judicial process would come to ridicule. We see some force in the submission but it is equally true that chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the  criminal  court.  Complainant  herein is an Advocate. He lost in both courts in the rent control proceedings and has  now rushed to the criminal court. This itself speaks volumes. Add to this the fact that another suit between the parties was  pending from 1975. The conclusion is inescapable that invoking  the  jurisdiction  of the criminal court in this background  is an abuse of the process of law and the High Court rather glossed over  this  important fact while declining to exercise its power under Section 482, Cr. P.C.”</i></b></p><p><b>Therefore, in the light of the observations of the Apex Court in the afore-extracted judgment, the 2nd respondent cannot but be held to be a frustrated litigant, who did want to settle his score against the petitioner, who was an innocent purchaser in an auction process. Merely because, the property belonged to the complainant and it having been sold in public auction, the criminal trial could not have been  set in motion. It is in such cases, the learned Magistrate before whom the proceedings are instituted must have exercised </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">care and caution while taking cognizance on the allegation of such offence.</b></p><p><b>The criminal petition is allowed. The order dated 30.07.2016, passed by the learned Additional Civil Jude and JMFC, Udupi in  Crime No.387/2009 and consequential proceedings in C.C.No.2719/2016, stand quashed.</b></p><p><b><br></b></p><p><br></p>', '5eaa922ad7063c6e73cff48cbd130ccc.jpg', '45a5b2bf2abb0d7f988e535e55553452.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-17', 1, '', '', '2021-08-26 23:08:12', '2021-08-26 23:09:14'),
(977, '41Ffk9qFdb6LYTOFMsWOWEGHA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Employees of Body Corporate which has incorporated CCA Rules are public servants though not government employees. Lokayukta can be entrusted with disciplinary proceedings against the employees. Karnataka High Court.  ', '<p><b>Sannamallappa vs The State of Karnataka and others. </b></p><p><b>Writ Petition 46539 of 2018 decided on 5 August 2021.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16. It is, therefore, evident from the above that Karnataka Housing Board is a \'body corporate\' having perpetual succession and a common seal. Therefore, the Officers and employees of the Board are not Government servants and they are servants of the Board which is a corporate entity. The above provision also makes it clear that the Board which is the employer of the petitioners is wholly controlled by the Government of Karnataka and the governing body of the Board consists of the appointees of the State Government, Officers of the Government or the nominees of the same. </b><br></p><p><b>17. There cannot thus be any dispute about the position that Karnataka Housing Board is a statutory body established under the Karnataka Housing Board Act, 1962, owned and controlled by the State Government. It is therefore evident that factum of petitioners being \'public servants\' is beyond the ken of dispute.</b></p><p><b>19. Since the whole thrust of attack on the legality of the proceedings initiated against the petitioners is grounded on the applicability of CCA Rules to the employees of the Board like the petitioners herein, more closer scrutiny of the above provision under Rule 5 of the Karnataka Housing Board Rules is called for.</b></p><p><b>20. It is crystal clear that if the CCA Rules is not at all applicable to the employees of the Board like the petitioners, respondent No.3 will completely lack </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">jurisdiction to hold any inquiry or disciplinary inquiry even if such proceedings is entrusted to it by respondent No.1 or respondent No.2 herein. There is absolutely no dispute about the fact that for the purpose of disciplinary control, employees of the Board including the petitioners are governed by the Karnataka Housing Board Rules, 1964 in general and Rule 5 in particular.</b></p><p><b>22. Significantly, sub-rule (2) of Rule 5 of the KHB Rules states that the CCA Rules shall mutatis mutandis be applicable to the Officers and servants of the Board. The question now is, what is the significance of the expression used \"mutatis mutandis\" on the applicability of the CCA Rules to the employees of the Board and whether employing such expression in any way limits the applicability of CCA Rules in its full amplitude to the disciplinary proceedings against the employees of the Board is concerned?</b></p><p><b>23. The precise connotation of the phrase mutatis mutandis has been considered in various decisions of the Hon\'ble Supreme Court and it is held that if a statute or any provision thereof is mentioned as applicable in another Statute, entirely or for any specific purpose, the former shall have full play in its operation in the latter ‘with necessary changes in points of detail’ and ‘matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like’. In other words, in the current context, evidently CCA Rules will completely apply and govern the holding of disciplinary inquiry against the employees of the Board like the petitioners herein, in its complete vigour except in some points of detail where departure is specifically made in the Karnataka Housing Board Rules as, for example, the schedule attached to sub-Rule (2) of Rule 5 specifically makes a mention as to who are the disciplinary authorities and who are the appellate authorities, with their powers regarding imposition of penalties clearly specified therein.</b></p><p><b>24. In this behalf it is useful to make reference to the observations of the Hon\'ble Supreme Court in Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd., ; (2013) 5 SCC 470 </b></p><p><b>30. From the foregoing it is absolutely clear that CCA Rules to the extent it is not departed from in the Karnataka Housing Board Rules, 1964 itself by incorporating a schedule to sub-rule (2) of Rule 5 therein is applicable with regard to disciplinary control of the Officers and servants of the Board and therefore the present petitioners as well. The above view of ours receives support from a decision of a Co-ordinate Bench of this Court to which one of us is a party (Justice B.V. Nagarathna) in W.P. No. 12300/2020 and connected matters [R.F. Hudedavar Vs. State of Karnataka & Others, para 38]. In that view of the matter, we do not find any merit in the contention of the learned Senior Counsel for the petitioners that CCA Rules is not applicable to the case of the present petitioners and therefore the respondent No.3 cannot be entrusted with the disciplinary proceedings / inquiry against the petitioners herein.</b></p><p><br></p>', 'b8c7dbb2849a5d47d4954cd31861e7ca.JPG', '53da3a87d81413365031e524f4f5da21.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-05', 1, '', '', '2021-08-28 01:35:20', '2021-08-28 01:40:03');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(978, 'fw5LGY5WlFLFnzdrAUmpy05ks', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for partition. Limitation Act, Section 110. The period of limitation does NOT start where there is no specific demand for partition of share in the property and no refusal or denial by defendant. Karnataka High Court.   ', '<p><b>Anjanamma N vs N. Manjunath and others.&nbsp;</b></p><p><b>Regular First Appeal 689 of 2015 and connected matters decided on 19 August 2021</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/403594/1/RFA689-15-19-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/403594/1/RFA689-15-19-08-2021.pdf&nbsp;</a></b></p><p><b>45. The law on Article 110 of the Schedule to the Limitation Act could be culled out as under:</b></p><p><b>(a) Article 110 of the Schedule to the Limitation Act does not apply to a suit where the plaintiff is a stranger, e.g., a purchaser of a share in the joint family property and not a member of the joint family. It also&nbsp; does not apply to a suit for possession of immovable property by a right of inheritance. This Article contemplates a suit by a member of the family against other members thereof to be restored to joint enjoyment. Article 110 is applicable only when the joint family property is partitioned. This Article pre-supposes the existence of a joint family and joint family property and can be invoked only when the suit is brought to enforce a right to a share therein by a person excluded from such&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">property. Also, the said Article applies where the suit is filed “to enforce the right” and “not to establish a right” vide Krishnajee Annajee vs. Annajee Dhondajee [AIR 1930 Bom. 61] (Krishnajee Annajee).</b></p><p><b>(b) The word “exclusion” implies a previous inclusion, i.e., there must be a previous participation in the enjoyment of the joint property. It is not sufficient&nbsp; to show that one member did not participate in the enjoyment of the property for twelve years or more; for mere non-participation is not “exclusion” within the meaning of this article. For exclusion to operate as a bar there must be an entire exclusion. In other words, it is necessary that the plaintiff knowing of his exclusion did not sue for twelve years, i.e., limitation begins to run only after he came to know of the exclusion. Exclusion must be distinct and known to that member, in fact, an adverse title inconsistent with the common management and enjoyment on behalf of the family must be set up and proved by the defendant. Mere mutation of names is not sufficient to prove ouster or exclusion, vide Kishenlal vs. Satya Prakash [AIR 1952 All 105].</b></p><p><b>(c) The exclusion that is contemplated under the article is a conscious and deliberate act amounting to denial of the right of a particular member concerned to a share in the property analogous to ouster and it must also have been brought home to him. Thus, there must be a positive act or conduct by which the exclusion from joint family property becomes known to the plaintiff. Article&nbsp; 110 applies only if the suit is filed after twelve years from the date of exclusion. Only because the plaintiff was residing in her matrimonial home, it cannot be held that she was excluded from the joint possession of suit land. In such circumstances, the suit is not barred under Article 110 of the Limitation Act, 1963 vide Durgavva vs. Annapoornavva [AIR 2017 Kar 38] (Durgavva).</b></p><p><b>(d) To bar the plaintiff under Article 110, three questions will have to be considered, namely, (i) whether the claimant to a share was excluded from the joint family property; (ii) if so excluded, when the exclusion, took place; and (iii) when the exclusion, if any, became known to the claimant. As to the meaning of the expression exclusion, it may be observed that, there can be no&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">exclusion without the denial of the coparcener’s right to the share and such a denial may be expressed or implied. When partition is demanded and refused, or if the coparcener is expelled from the joint family, that would be clear exclusion. Once the party establishes his claim to a share in the joint family properties by showing that the family was joint and that he/she was a coparcener entitled to a share in its properties the onus is on the opposite party to establish exclusion to the coparcener’s knowledge for over twelve years prior to the suit for partition, vide Marudanayagam Pillai vs. Sola Pillai [AIR 1965 Mad 200] (Marudanayagam Pillai).</b></p><p><b>(e) Where there is no specific demand for partition of share in the property and no refusal or denial by defendant, the period of limitation does not start. Mere non-assertion of right in the property will not amount to exclusion, vide Kishore N alias H Shah vs. Prakash N Shah [2001(2) Bom.LR 1 (9) (Bom)] (Kishore N alias H Shah); Vasanti P Shetty vs. Nagaveni J Shetty [(1996)1 LJ 970 (Bom)] (Vasanti P Shetty).</b></p><p><b>(f) The general rule is that possession of one member of a joint family is the possession on behalf of all. Thus, exclusion is a question of fact, which must be proved and decided upon the question in each case. Thus, it is for the plaintiff to show that the property is a joint family property and that he/she is a member thereof and that the defendant to plead that the suit is time barred as the plaintiff was excluded from the joint estate for more than twelve years and that the exclusion was known to the plaintiff. Also, where a suit for partition is filed claiming a share in the property of the father, the limitation of twelve years would start from the date of the denial of the share by heirs of the father in the property and not from the date of death of the father. Thus, where the suit properties are joint family properties and there is no evidence showing that the plaintiff was excluded completely in claiming their share in suit properties, then the period of limitation would run only from the time when the plaintiff came to know exclusion vide Veerayya M. Koppad vs. Geetha [2008 AIHC 1407 (Kant)] (Veerayya M. Koppad).</b></p><p><b><br></b></p><p><br></p>', 'c157ad5dd1402fd59904264c430ddd5b.JPG', '08ad2f9eeeb3fad96b0ae5c05a8d5495.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-19', 1, '', '', '2021-08-28 23:38:34', '2021-08-28 23:38:34'),
(2696, 'DOB9m9TWgcB6EpAxz6zvIPhsb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Cooperative Societies Act. Person seeking employment, who has not yet become employee of the Co-operative Society, need not raise dispute under Section 70. Writ Petition is maintainable. Karnataka High Court. ', '<p><b>T.B.Venugopal vs The Tumkur Milk Producers Co-Operative Societies Union Ltd.</b></p><p><b>Writ Petition 52059 of 2017 decided 19 August 2021.</b></p><p><b>Justice M. Nagaprasanna.</b></p><p><b>The petitioner in this writ petition seeks the following prayers:&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Hold that the appointment of respondent No.4 as the Assistant Manager MIS Systems in the respondent No.1-Society is non&nbsp; est&nbsp; and is completely vitiated by bias and legal malafides and</span></b></p><p><b>5. On the other hand, Sri.Varun J.Patil, learned counsel appearing for the respondent&nbsp; No.1-Society would submit that the writ petition is not maintainable and a dispute under Section 70 of the Karnataka Co- operative Societies Act, 1959 has to be raised&nbsp;</b></p><p><b>8. At the outset, I deem it appropriate to consider the submission of the learned counsel appearing for the respondent No.1 that the writ petition is not maintainable and the petitioner will have to avail alternate, efficacious and statutory remedy of raising a dispute under Section 70 of the Karnataka Co-operative Societies Act, 1959&nbsp;</b></p><p><b>9. The petitioner is an applicant pursuant to a notification for appointment and in terms of the notification, he has participated in the selection process and does not get selected. It cannot be said that the petitioner is an employee of the Society and is yet to become an employee and is seeking to challenge the appointment of respondent No.4 into the Society. Therefore, there is no dispute in terms of Section 70 of the Act between the employer and the petitioner which concerns his employment. It is apposite to refer to the order of the Division Bench of this Court in the case of JYOTIBA YELLAPPA JADHAV AND OTHERS v. THE HUBLI&nbsp; &nbsp; CO-OPERATIVE COTTON&nbsp; SALES SOCIETY&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">LIMITED&nbsp; AND&nbsp; OTHERS (1970) 2 Mys.L.J 344.&nbsp; It is further germane to notice the judgment of the Apex&nbsp; Court&nbsp; in&nbsp; the&nbsp; case&nbsp; of&nbsp; BONGAIGAON&nbsp; REFINERY &amp; PETROCHEMICALS LIMITED v. SAMIJUDDIN AHMED (2001) 9 SCC 557.</span></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Apex Court in the aforesaid judgment holds&nbsp; that any person, as defined under Section 2(k) of the Industrial Disputes Act cannot mean that an employee who is seeking employment can come within the definition of ‘workman’.</span><br></b></p><p><b>10. Therefore, on a conjoint reading of Section 70, the judgments of the Division Bench of this Court and that of the Apex Court would lead to an unmistakable conclusion that the writ petition by the petitioner who was seeking employment and had not yet become an employee would be maintainable before this&nbsp; Court.&nbsp; Even otherwise, the power of entertaining the writ petition under Article 226 of the Constitution cannot be taken away merely because an alternate efficacious remedy is available, as it is a self imposed restriction upon constitutional Courts and not an embargo on this Court. Therefore, I reject this submission of the learned counsel appearing for respondent No.1 that the writ&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petition would not be maintainable and proceed to consider the matter on its merits, a caveat, this finding would not be applicable to all circumstances where a non- selected employee would raise a challenge to a recruitment notification or a process of recruitment.&nbsp; It&nbsp; is rendered only on the interpretation of Section 70 as the dispute under Section 70 would be maintainable between the employee and the employer. That having not come about the petition is considered on its merit.</span></b></p>', 'd980a479a5b9e28956dc4a98c2959c59.jpeg', 'e90ebb62b2a89849b346459da1d0c7ff.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-17', 1, '', '', '2023-02-17 15:25:33', '2023-02-17 10:34:02'),
(980, 'cSROTD9UyIhWkhirjuPVTKiin', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Unlawful dispossession by Court Ameen/Officers despite stay of trial court judgment granted by the High Court. \'Section 144 C.P.C. not alternate/efficacious remedy\'. Karnataka High Court orders restoration of possession. ', '<h5><b>S.A.Subhan vs Rasheed Kahn. CRP 45/2021 dated 19 August 2021<br></b></h5><h5><b><span style=\"background-color: rgb(255, 255, 0);\">Full text of the Order: </span><br>Order on I.A.No.4/2021<br>1. I.A.No.4/2021 has been filed by the petitioner herein to restore possession of schedule B premises of the judgment and decree in S.C.No.550/2019 in favour of petitioners by putting back the petitioner in the possession of the property in dispute as on 28.02.2021 on account of alleged disobedience of the order of stay passed by this Court on 26.02.2021 by the respondents, Bailiff/Ameen of the Trial Court and by the jurisdictional police.<br></b></h5><h5><b>2. This Court, vide its order dated 26.02.2021 after hearing the petitioners, passed an ex parte interim order staying operation of impugned judgment and decree dated 02.08.2019 in S.C.No.550/2019 passed by the VIII A.C.M.M, Bengaluru (CCH-5) subject to the petitioners depositing Rs.20,000/- within a period of 15 days therefrom and another sum of Rs.15,000/- within a period of three weeks thereafter.<br></b></h5><h5><b>3. The order having been passed on 26.02.2021 on 01.03.2021, a delivery warrant issued in Ex.Petition No.344/2020 was sought to be executed.<br></b></h5><h5><b>4. The petitioners along with memo dated 16.07.2021 has produced copies of delivery warrant, report of the Court Ameen, endorsement and shara along with spot mahazar and delivery report.<br></b></h5><h5><b>5. Relying on the same, learned counsel for the petitioners would submit that this Court vide its order dated 26.02.2021 having been brought to the notice of the person present therein i.e., representative of the respondent, Court Ameen and police officer, the delivery warrant was executed solely on the ground that certified copy of order has not been furnished, even though printout from the website of uploaded order has been furnished. He therefore, submits that dispossession having occurred when an order of stay of this Court was in force, the petitioners are entitled for restitution and to be put back into possession as it is in gross violation of the order that possession was forcibly taken and it is on that ground, he submits I.A.No.4/2021 is required to be allowed.<br></b></h5><h5><b>6. Per contra, Sri Mohammed Tahir, learned counsel for respondents has filed objection on main and produced various documents. Those objections would have to be considered when the matter would be taken up on merits. Today, this Court is only concerned with I.A.No.4/2021.<br></b></h5><h5><b>7. Sri Mohamed Tahir, in respect of I.A.No.4/2021 would submit that an application in the nature of I.A.No.4 cannot be filed before this Court but ought to have been filed before the Execution Court which would have considered the same on merits after conducting due enquiry since there are disputed questions of facts, which have to be enquired into by the Executing Court. He further submits that this would also be the reason since dispossession has been effected on account of execution of the said warrant issued by the Executing Court and therefore Executing Court would be appropriate forum, where application could be filed. He further submitted that dispossession has not been effected by the respondents perse but has been effected by Court Officer/Ameen, who has taken possession and handed over the same to the respondents. Therefore, respondents cannot be found fault with. Executing Court would have to conduct an enquiry through Bailiff/Ameen in respect of the same. He also submits that I.A.No.4/2021 may not be considered. Even otherwise, he submits that conduct of the petitioners has not been proper. The order passed on 26.02.2021 is on account of suppression of material facts by the petitioners which, also needs to be considered.<br></b></h5><h5><b>8. Heard Sri Chandrashekar K.V, learned counsel for petitioner and Sri Mohammed Tahir, learned counsel for respondent on I.A.No.4/2021 and perused the documents.<br></b></h5><h5><b>9. Firstly, this Court has to consider whether there is any disputed fact as regards dispossession on the orders passed by this Court ?<br></b></h5><h5><b>10. It is not in dispute nor can it be disputed that this Court has passed an order on 26.02.2021 staying the operation and execution of judgment and decree. It is also not in dispute that the certified copy of the said order was not available to the petitioners in order to make it available to the concerned person on 01.03.2021 at the time of execution of the delivery warrant.<br></b></h5><h5><b>11. What this Court would have to consider is, the veracity and applicability as also significance of an order uploaded on the website of this Court ?<br></b></h5><h5><b>12. At this juncture, Sri Mohammed Tahir learned counsel for the respondents relies upon Section 144 of CPC, more particularly, Section </b></h5><h5><b><i>144(a) thereof, to contend that where a decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance, could exercise jurisdiction as regards restitution and this Court cannot exercise any jurisdiction to put back the petitioners in possession of premises. The said Section 144 of CPC is reproduced hereunder for easy reference:<br>S. 144 - Where and in so far as a decree 1 [or an order] is 2 [varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order] shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree 1 [or order] or 3 [such part thereof as has been varied, reversed, set aside or modified]; and for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly 4 [consequential on such variation, reversal, setting aside or modification of the decree or order].<br>5[Explanation.--For the purposes of sub-section (1), the expression Court which passed the decree or order shall be deemed to include,-<br>(a) where the decree or order has been varied or reversed in exercise of appellate or revision jurisdiction, the Court of first instance;<br>(b) where the decree or order has been set aside by a separate suit, the court of first instance which passed such decree or order.<br>(c) where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute, it, the Court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit.]<br>(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1).<br></i>13. The spot mahazar would indicate that learned counsel for the petitioners has brought to the notice of Court Ameen about the order passed by this Court for which the Court Ameen is stated to have requested for a certified copy of the order. Learned counsel for the petitioners has given him a printout of order uploaded on website of this Court, which the Ameen refused to acknowledge since it was not a certified copy. The relevant portion of the spot Mahzar is reproduced hereunder for easy reference:<br></b></h5><h5><b>14. In view of the above, it is not in dispute that the Court Bailiff/Ameen have been informed about the order passed by this Court on 26.02.2021. It is also not in dispute that printout of the order copy which has been uploaded on website had been furnished. What is in dispute, is only that certified copy was not furnished. Therefore, the Court Bailiff/Ameen did not take cognizance of the order.<br></b></h5><h5><b>15. Admittedly, the order of stay has been passed on 26.02.2021 which was a Friday, having left with only two days to the next working day, 27.02.2021 being Saturday and 28.02.2021 being Sunday, the delivery warrant was to be executed on the next working day i.e., on 01.03.2021, when the petitioners have been dispossessed from the schedule premises.<br></b></h5><h5><b>16. The Advocate for petitioners had brought to the notice of the Court Bailiff/Ameen the order of this Court, in fact, gave him a print out of the uploaded copy of the order of this Court. Any Court or authority would have to consider the order of this Court. It is not required that certified copy is always furnished for the purpose of taking or not taking any action. If at all the Court Bailiff/Ameen had any doubt about the order, he could have always checked from the website of this Court to ascertain the veracity of the order as to whether indeed, there was such an order which has been uploaded. Instead of doing so, in a very reckless and careless manner, the said Bailiff/Ameen has ignored the order only on account of certified copy not being furnished. The Bailiff/Ameen ought to have done so, more so, while dealing with an act of dispossession of person from the property which this Court has passed an order, the Bailiff/Ameen is bound to follow the order passed by this Court while dispossessing a person from possession of the property.<br></b></h5><h5><b>17. There has to be due authenticity to upload the order. In fact, many a time, when this Court passes an order, concerned defendant /respondent is directed to act on the basis of the uploaded order on the website. That itself would indicate that, in all cases certified copy is not required to be furnished.<br></b></h5><h5><b>18. Though Sri Mohammed Tahir, learned counsel for respondents has contended that there are disputed facts and it is only the Executing Court which can look into this matter, the spot Mahazar report discloses nothing in dispute as observed above, the order having been passed on 26.02.2021, has been communicated to the concerned Ameen/Bailiff on 01.03.2021, printout thereof had also been furnished which is also depicted in the spot Mahazar. Therefore, no facts are required to be ascertained.<br></b></h5><h5><b>19. In view of the above, there need not be any enquiry as such which is required to be held as regards the aspect of furnishing of a copy of the order. Since the furnishing and receipt thereof is admitted by the Court Ameen who dispossessed the petitioners by ignoring the order of this Court.<br></b></h5><h5><b>20. The other contentions of the Sri Mohammed Tahir by relying on Section 144 of CPC is where the decree or order has been varied or reversed in exercise of appellate or revision jurisdiction, it is only the Court of first instance who could exercise power under Section 144 of CPC, 1908.<br></b></h5><h5><b>21. The explanation (a) which is relied upon by Sri Mohammed Tahir, learned counsel is only relating to where the decree has been varied or reversed in exercise of appellate or revisional jurisdiction. In the present case, there is no such revision or variation is made. The order dated 26.02.2021 is an interim order passed by this Court staying the operation and execution of decree by virtue of which, delivery warrant could not have been executed. The order having been passed by this Court and violation of order of this Court leading to dispossession, this Court would have necessary has power to put back the petitioners in the same position as he was prior to act of disobedience of the order of this Court. In view thereof, I find that explanation (a) Section 144 of CPC would not be applicable to the present facts as contended by the learned counsel for respondents.<br></b></h5><h5><b>22. In view thereof, I pass the following :<br></b></h5><h5><b>ORDER<br>22.1. I.A.No.4/2021 is allowed.<br>22.2. The Court Bailiff/Ameen shall hand over the possession of schedule B property to the plaint to the petitioners and put back the petitioners in possession of the same within two days from today without waiting for certified copy of this order and shall act upon the uploaded copy of the order of this Court.<br>22.3. In the event of possession having been handed over to the respondents (since Sri Mohammed Tahir is unable to state whether the respondents have received possession), the respondents shall hand over the possession of the schedule B property to the petitioners within two days from today.<br>22.4. Since this order is passed today i.e., 19.08.2021 at 12.p.m. in the presence of learned counsel for respondents, there would be no requirement of further receiving any certified copy or uploaded copy of the order.<br>22.5. The Executing Court in Ex.P.No.344/2020 to conduct a disciplinary enquiry in the above matter as against the Officers of the Court, who were present on 01.03.2021, who took possession and handed over the possession to the respondents in violation of the order passed by this Court on 26.02.2021 and submit a report in this regard within three months from the date of receipt of a copy of this order.<br>22.6. Re-list the matter on 26.08.2021 to report compliance of this order and for hearing.</b></h5>', '55f02e03bcec10cb7b6c3755faa5b762.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-19', 1, '', '', '2021-08-29 17:42:31', '2021-08-29 17:49:33'),
(981, '7Bp4llXNiYv1IjHLXpe5UfABI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'Interim Orders and Judgements uploaded on the official website of the High Court must be acted upon by the authorities/ officers/ courts concerned if certified copy is not readily available.\' Karnataka High Court.', '<p><b>S.A.Subhan vs Rasheed Kahn. CRP 45/2021 dated 19 August 2021</b></p><p><b>Full text of the Order: </b></p><p><b>Order on I.A.No.4/2021</b></p><p><b>1. I.A.No.4/2021 has been filed by the petitioner herein to restore possession of schedule B premises of the judgment and decree in S.C.No.550/2019 in favour of petitioners by putting back the petitioner in the possession of the property in dispute as on 28.02.2021 on account of alleged disobedience of the order of stay passed by this Court on 26.02.2021 by the respondents, Bailiff/Ameen of the Trial Court and by the jurisdictional police.</b></p><p><b>2. This Court, vide its order dated 26.02.2021 after hearing the petitioners, passed an ex parte interim order staying operation of impugned judgment and decree dated 02.08.2019 in S.C.No.550/2019 passed by the VIII A.C.M.M, Bengaluru (CCH-5) subject to the petitioners depositing Rs.20,000/- within a period of 15 days therefrom and another sum of Rs.15,000/- within a period of three weeks thereafter.</b></p><p><b>3. The order having been passed on 26.02.2021 on 01.03.2021, a delivery warrant issued in Ex.Petition No.344/2020 was sought to be executed.</b></p><p><b>4. The petitioners along with memo dated 16.07.2021 has produced copies of delivery warrant, report of the Court Ameen, endorsement and shara along with spot mahazar and delivery report.</b></p><p><b>5. Relying on the same, learned counsel for the petitioners would submit that this Court vide its order dated 26.02.2021 having been brought to the notice of the person present therein i.e., representative of the respondent, Court Ameen and police officer, the delivery warrant was executed solely on the ground that certified copy of order has not been furnished, even though printout from the website of uploaded order has been furnished. He therefore, submits that dispossession having occurred when an order of stay of this Court was in force, the petitioners are entitled for restitution and to be put back into possession as it is in gross violation of the order that possession was forcibly taken and it is on that ground, he submits I.A.No.4/2021 is required to be allowed.</b></p><p><b>6. Per contra, Sri Mohammed Tahir, learned counsel for respondents has filed objection on main and produced various documents. Those objections would have to be considered when the matter would be taken up on merits. Today, this Court is only concerned with I.A.No.4/2021.</b></p><p><b>7. Sri Mohamed Tahir, in respect of I.A.No.4/2021 would submit that an application in the nature of I.A.No.4 cannot be filed before this Court but ought to have been filed before the Execution Court which would have considered the same on merits after conducting due enquiry since there are disputed questions of facts, which have to be enquired into by the Executing Court. He further submits that this would also be the reason since dispossession has been effected on account of execution of the said warrant issued by the Executing Court and therefore Executing Court would be appropriate forum, where application could be filed. He further submitted that dispossession has not been effected by the respondents perse but has been effected by Court Officer/Ameen, who has taken possession and handed over the same to the respondents. Therefore, respondents cannot be found fault with. Executing Court would have to conduct an enquiry through Bailiff/Ameen in respect of the same. He also submits that I.A.No.4/2021 may not be considered. Even otherwise, he submits that conduct of the petitioners has not been proper. The order passed on 26.02.2021 is on account of suppression of material facts by the petitioners which, also needs to be considered.</b></p><p><b>8. Heard Sri Chandrashekar K.V, learned counsel for petitioner and Sri Mohammed Tahir, learned counsel for respondent on I.A.No.4/2021 and perused the documents.</b></p><p><b>9. Firstly, this Court has to consider whether there is any disputed fact as regards dispossession on the orders passed by this Court ?</b></p><p><b>10. It is not in dispute nor can it be disputed that this Court has passed an order on 26.02.2021 staying the operation and execution of judgment and decree. It is also not in dispute that the certified copy of the said order was not available to the petitioners in order to make it available to the concerned person on 01.03.2021 at the time of execution of the delivery warrant.</b></p><p><b>11. What this Court would have to consider is, the veracity and applicability as also significance of an order uploaded on the website of this Court ?</b></p><p><b>12. At this juncture, Sri Mohammed Tahir learned counsel for the respondents relies upon Section 144 of CPC, more particularly, Section</b></p><p><b>144(a) thereof, to contend that where a decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance, could exercise jurisdiction as regards restitution and this Court cannot exercise any jurisdiction to put back the petitioners in possession of premises. The said Section 144 of CPC is reproduced hereunder for easy reference:</b></p><p><b>S. 144 - Where and in so far as a decree 1 [or an order] is 2 [varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order] shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree 1 [or order] or 3 [such part thereof as has been varied, reversed, set aside or modified]; and for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly 4 [consequential on such variation, reversal, setting aside or modification of the decree or order].</b></p><p><b>5[Explanation.--For the purposes of sub-section (1), the expression Court which passed the decree or order shall be deemed to include,-</b></p><p><b>(a) where the decree or order has been varied or reversed in exercise of appellate or revision jurisdiction, the Court of first instance;</b></p><p><b>(b) where the decree or order has been set aside by a separate suit, the court of first instance which passed such decree or order.</b></p><p><b>(c) where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute, it, the Court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit.]</b></p><p><b>(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1).</b></p><p><b>13. The spot mahazar would indicate that learned counsel for the petitioners has brought to the notice of Court Ameen about the order passed by this Court for which the Court Ameen is stated to have requested for a certified copy of the order. Learned counsel for the petitioners has given him a printout of order uploaded on website of this Court, which the Ameen refused to acknowledge since it was not a certified copy. The relevant portion of the spot Mahzar is reproduced hereunder for easy reference:</b></p><p><b>14. In view of the above, it is not in dispute that the Court Bailiff/Ameen have been informed about the order passed by this Court on 26.02.2021. It is also not in dispute that printout of the order copy which has been uploaded on website had been furnished. What is in dispute, is only that certified copy was not furnished. Therefore, the Court Bailiff/Ameen did not take cognizance of the order.</b></p><p><b>15. Admittedly, the order of stay has been passed on 26.02.2021 which was a Friday, having left with only two days to the next working day, 27.02.2021 being Saturday and 28.02.2021 being Sunday, the delivery warrant was to be executed on the next working day i.e., on 01.03.2021, when the petitioners have been dispossessed from the schedule premises.</b></p><p><b>16. The Advocate for petitioners had brought to the notice of the Court Bailiff/Ameen the order of this Court, in fact, gave him a print out of the uploaded copy of the order of this Court. Any Court or authority would have to consider the order of this Court. It is not required that certified copy is always furnished for the purpose of taking or not taking any action. If at all the Court Bailiff/Ameen had any doubt about the order, he could have always checked from the website of this Court to ascertain the veracity of the order as to whether indeed, there was such an order which has been uploaded. Instead of doing so, in a very reckless and careless manner, the said Bailiff/Ameen has ignored the order only on account of certified copy not being furnished. The Bailiff/Ameen ought to have done so, more so, while dealing with an act of dispossession of person from the property which this Court has passed an order, the Bailiff/Ameen is bound to follow the order passed by this Court while dispossessing a person from possession of the property.</b></p><p><b>17. There has to be due authenticity to upload the order. In fact, many a time, when this Court passes an order, concerned defendant /respondent is directed to act on the basis of the uploaded order on the website. That itself would indicate that, in all cases certified copy is not required to be furnished.</b></p><p><b>18. Though Sri Mohammed Tahir, learned counsel for respondents has contended that there are disputed facts and it is only the Executing Court which can look into this matter, the spot Mahazar report discloses nothing in dispute as observed above, the order having been passed on 26.02.2021, has been communicated to the concerned Ameen/Bailiff on 01.03.2021, printout thereof had also been furnished which is also depicted in the spot Mahazar. Therefore, no facts are required to be ascertained.</b></p><p><b>19. In view of the above, there need not be any enquiry as such which is required to be held as regards the aspect of furnishing of a copy of the order. Since the furnishing and receipt thereof is admitted by the Court Ameen who dispossessed the petitioners by ignoring the order of this Court.</b></p><p><b>20. The other contentions of the Sri Mohammed Tahir by relying on Section 144 of CPC is where the decree or order has been varied or reversed in exercise of appellate or revision jurisdiction, it is only the Court of first instance who could exercise power under Section 144 of CPC, 1908.</b></p><p><b>21. The explanation (a) which is relied upon by Sri Mohammed Tahir, learned counsel is only relating to where the decree has been varied or reversed in exercise of appellate or revisional jurisdiction. In the present case, there is no such revision or variation is made. The order dated 26.02.2021 is an interim order passed by this Court staying the operation and execution of decree by virtue of which, delivery warrant could not have been executed. The order having been passed by this Court and violation of order of this Court leading to dispossession, this Court would have necessary has power to put back the petitioners in the same position as he was prior to act of disobedience of the order of this Court. In view thereof, I find that explanation (a) Section 144 of CPC would not be applicable to the present facts as contended by the learned counsel for respondents.</b></p><p><b>22. In view thereof, I pass the following :</b></p><p><b>ORDER</b></p><p><b>22.1. I.A.No.4/2021 is allowed.</b></p><p><b>22.2. The Court Bailiff/Ameen shall hand over the possession of schedule B property to the plaint to the petitioners and put back the petitioners in possession of the same within two days from today without waiting for certified copy of this order and shall act upon the uploaded copy of the order of this Court.</b></p><p><b>22.3. In the event of possession having been handed over to the respondents (since Sri Mohammed Tahir is unable to state whether the respondents have received possession), the respondents shall hand over the possession of the schedule B property to the petitioners within two days from today.</b></p><p><b>22.4. Since this order is passed today i.e., 19.08.2021 at 12.p.m. in the presence of learned counsel for respondents, there would be no requirement of further receiving any certified copy or uploaded copy of the order.</b></p><p><b>22.5. The Executing Court in Ex.P.No.344/2020 to conduct a disciplinary enquiry in the above matter as against the Officers of the Court, who were present on 01.03.2021, who took possession and handed over the possession to the respondents in violation of the order passed by this Court on 26.02.2021 and submit a report in this regard within three months from the date of receipt of a copy of this order.</b></p><p><b>22.6. Re-list the matter on 26.08.2021 to report compliance of this order and for hearing.</b></p><div><br></div>', 'edb7378fc4b9b95791e61f57a81ee51e.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-19', 1, '', '', '2021-08-29 18:04:35', '2021-08-29 18:12:14'),
(982, 'nSvYkNATTtLT1e4LHU8INFfuf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Personal bias of the Selection Committee Chairman in favour of a particular candidate resulting in abnormal grading/marking. Karnataka High Court quashes the appointment process. ', '<p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>T.B.Venugopal vs The Tumkur Milk Producers Co-Operative Societies Union Ltd.</b></font></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>Writ Petition 52059 of 2017 decided 19 August 2021.</b></font></p><p style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>Judgement link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/403687/1/WP52059-17-19-08-2021.pdf\" target=\"_blank\" style=\"\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/403687/1/WP52059-17-19-08-2021.pdf</a></b></font></p><p><b>11. The notification issued by the respondent No.1 calling for applications for various posts including  that of Assistant Manager MIS was on 29.02.2016. Both the petitioner and respondent No.4 are applicants in response to the said notification to the post of Assistant Manager MIS. Written test for the said post was conducted in terms of the notification on  18.12.2016. The petitioner secures 102 marks in the written test as against 77 marks secured by the 4th respondent. In </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">terms of the notification 85% of marks secured will have to be taken as the marks secured in the written examination. Therefore, in terms of the said percentage, the petitioner secures 43.4 marks and the respondent No.4 secures 32.7 marks. On the very look of it, the marks secured by the respondent No.4 is abysmally low.</b></p><p><b>13. The submission of the learned counsel appearing for the petitioner with regard to bias qua the marks awarded merits consideration. The  respondent  No.4 who had applied pursuant to the  notification  and  had participated in the written test just before the  interview was to be conducted displayed certain photographs of him celebrating in glory, birthday of the respondent No.3 who is the President of the Society and  the same is widely publicised on facebook – social media which is not disputed by the  learned  counsel  appearing for the respondent No.1 or the respondent No.4. The respondent No.3/President who is made a party in the proceedings is served and unrepresented.</b></p><p><b>14. The display of the acquaintance of the respondent No.4 with the respondent No.3 with the phraseology ‘Midnight celebrations with BOSS’ read with </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">marks that are bolstered in the interview only in favour of the respondent No.4, cannot but lead to an unmistakable conclusion that the appointment of the respondent No.4 is vitiated by personal and official bias as those pictures produced as Annexures-D1 to D4, E1, E2 and F to the writ petition declare the  respondent No.3 to be the boss of the respondent No.4 before the interview could be held and the marks awarded as narrated (supra), in the interview would vitiate such appointment on account of bias.</b></p><p><b>15. The allegation of the petitioner is the selection of the respondent No.4 is vitiated on account of personal bias of the respondent No.3 who was then the Chairman of the Selection Committee. The facts narrated hereinabove would clearly indicate that the marks of respondent No.4 are bolstered on account of his acquaintance or friendship with the Chairman of the Selection Committee. In such circumstances when the allegation  of  bias is made  the  Apex court in the  case of </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">STATE  OF  WEST  BENGAL  v.  SHIVANANDA PATHAK (1998) 5 SCC 513. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">....in an allegation of this nature reasonable suspicion of bias and real likelihood of bias are to be arrived at by evaluating the facts and circumstances of the case. As recorded hereinabove, the facts narrated that the marks obtained by the  selected  candidate  in the interview would raise a reasonable suspicion or real likelihood of bias.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">17. A cumulative analysis of the facts and the judgments of the Apex Court it becomes unmistakably  clear that the selection of respondent No.4 is vitiated by bias as  the  learned  counsel  appearing  for  the  respondent No.4/selected candidate admits that he had posted those posts on social media – face book and does not,     however,     dispute     his     relationship     with     the respondent No.3. It is his defence that merely because there is some relationship or friendship between respondent No.3 and respondent No.4, it would not vitiate the selection as he has been awarded marks by  the Selection Committee. The respondent No.3 was the Chairman of the Selection Committee and all the members of the Selection Committee including the Chairman awarded 0.5 marks to the petitioner and 2.5 marks and above each to the respondent No.4.  Therefore, in the peculiar facts and circumstances of  this case, as held by the Apex Court in the afore- extracted judgments, the selection of respondent No.4 cannot but be held to be vitiated on account of bias. It is also to be noticed with emphasis that respondent No.3 who was the chairman and generator of the allegations has remained  conspicuously  absent  in  these  proceedings, perhaps deliberately, as he is served and remains unrepresented for the last four  years.  Therefore, it becomes clear that the respondent No.3 has no answer to the allegations levelled against him in the petition. Shooting from either the shoulder of the respondent No.1 or the respondent No.4 would not suffice or be an explanation when he is specifically arrayed as a party respondent imputing bias.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The appointment of respondent No.4 stands quashed and the respondent No.1/Society is directed to conduct the interview afresh of the candidates who had been short listed after the written examination and issue appointment order in accordance with  law. In the event none would now respond, the appointment may be offered to the petitioner.</b><br></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'dcf929012e4ed80e010915f4fd39c1f6.jpg', 'be19f2daf7606740220dc19b16fec10f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-19', 1, '', '', '2021-08-29 19:39:14', '2021-08-29 19:45:12'),
(983, 'vcdOfwXmpP4d0ySiVDAqcGBnb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Guarantor issuing cheque towards payment of dues of principal debtor. Proceedings under Section 138 are maintainable against such guarantor. Supreme Court. ', '<h6><b style=\"text-align: justify; font-size: 13px; font-family: Verdana;\"><i style=\"\">ICDS Ltd. v. Beena Shabeer</i>, (2002) 6 SCC 426 : 2002 SCC (Cri) 1342 : 2002 SCC OnLine SC 733</b><b style=\"text-align: justify; font-size: 13px; font-family: Verdana;\">&nbsp;at page 430</b></h6><h6 style=\"text-align: justify; \"><b style=\"font-size: 13px; font-family: Verdana;\">Criminal Appeal 787 of 2002 decided on 12 August 2002</b></h6><h6><b style=\"text-align: justify; font-size: 13px; font-family: Verdana;\"></b><b><span style=\"text-indent: 18pt; font-family: &quot;Open Sans&quot;; font-size: 16px; text-align: justify;\">10.</span><span style=\"text-indent: 18pt; font-family: &quot;Open Sans&quot;; font-size: 16px; text-align: justify;\">&nbsp;The language, however, has been rather specific as regards the intent of the legislature. The commencement of the section stands with the words “Where any cheque”. The abovenoted three words are of extreme significance, in particular, by reason of the user of the word “any” — the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for the discharge of&nbsp;</span><i style=\"text-indent: 18pt; font-family: &quot;Open Sans&quot;; font-size: 16px; text-align: justify;\">any debt or other liability</i><span style=\"text-indent: 18pt; font-family: &quot;Open Sans&quot;; font-size: 16px; text-align: justify;\">, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt&nbsp;</span><i style=\"text-indent: 18pt; font-family: &quot;Open Sans&quot;; font-size: 16px; text-align: justify;\">but the same includes other liability as well</i><span style=\"text-indent: 18pt; font-family: &quot;Open Sans&quot;; font-size: 16px; text-align: justify;\">. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment.<br></span></b><b><span style=\"text-indent: 18pt; font-family: &quot;Open Sans&quot;; text-align: justify; font-size: 1rem;\">11.</span><span style=\"text-indent: 18pt; font-family: &quot;Open Sans&quot;; text-align: justify; font-size: 1rem;\">&nbsp;The issue as regards the coextensive liability of the guarantor and the principal debtor, in our view, is totally out of the purview of Section 138 of the Act, neither the same calls for any discussion therein. The language of the statute depicts the intent of the law-makers to the effect that wherever there is a default on the part of one in favour of another and in the event a cheque is issued in discharge of any debt or other liability there cannot be any restriction or embargo in the matter of application of the provisions of Section 138 of the Act. “Any cheque” and “other liability” are the two key expressions which stand as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the statute. Any contra-interpretation would defeat the intent of the legislature. The High Court, it seems, got carried away by the issue of guarantee and guarantor\'s liability and thus has overlooked the true intent and purport of Section 138 of the Act. The judgments recorded in the order of the High Court do not have any relevance in the contextual facts and the same thus do not lend any assistance to the contentions raised by the respondents.</span></b></h6>', 'a62a9947caf6b52ff535a0ca917abf22.jpeg', 'cece9a1ffbfd0efb4fd49df7041b1c60.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2002-08-12', 1, '', '', '2021-08-30 20:21:35', '2021-08-30 20:21:35');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(984, 'XvCadvq3gIoOjIR4xp2VJA7zr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Decree obtained by fraud is nullity and non-est in the eyes of law. Even a subordinate court can grant injunction against execution of such decree of higher court. Karnataka High Court.  ', '<p><b>M.Sridhara Acharya and another vs Suresh Acharya.</b></p><p><b>Writ Petition 3607 of 2018 decided on 1 August 2021. </b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. Insofar as the contention of learned counsel for the petitioners that the judgment passed in </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">O.S.No.173/1996 by the Sr. Civil  Judge  and  the present suit is filed before the Jr.  Divn.,  the  Senior  Civil Judge is not subordinate to the junior division and no injunction can be granted as per Section  41(b)  of  the  Specific  Relief  Act, the said aspect was not </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">considered by the Courts below. The issue raised by the  learned  counsel  for  the  petitioners  is  no longer </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">res-integra. The said contention of the  petitioners was answered by the Hon’ble Apex Court in the case of S.P CHENGALVARAYA NAIDU (DEAD) BY L.R.s </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">V.  JAGANNATH  (DEAD)  BY  L.R.s  AND   ORS. reported in (1994) 1 SCC 1 wherein the Hon’ble Apex Court held as under:</b></p><p><b>\"1. Fraud-avoids all jMdicial acts, eccelsiastical or temporal. observed Chief Justice Edward Coke of England about three centuries ago. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">It is the settfed proposition of faw that a judgment or decree obtained by playing fraud on the Court is a nullity and honest in the eyes of law. Such a judgment/decree — by the first Court or by the highest court — has to be treated as a nullity by every Court, whether superior or inferior. It can  be  challenged  in  any Court even in collateral proceedings. ”</b></p><p><b>The Hon’ble Apex Court held that judgment and decree obtained by playing a fraud on the  Court  is nullity and<span style=\"white-space:pre\">	</span>honest<span style=\"white-space:pre\">	</span>(non-est) in the eyes<span style=\"white-space:pre\">	</span>of law.<span style=\"white-space:pre\">	</span> Such a judgment/decree by the first Court  or  by  the  highest Court   has   to  be  treated<span style=\"white-space:pre\">	</span>as   nullity by every Court whether   superior or  inferior. It can challenged in any Court even in the collateral proceedings. In view of the<span style=\"white-space:pre\">	</span>law<span style=\"white-space:pre\">	</span>laid<span style=\"white-space:pre\">	</span>down by<span style=\"white-space:pre\">	</span>the<span style=\"white-space:pre\">	</span>Hon’ble Apex<span style=\"white-space:pre\">	</span>Court in S.P.Chazzgal v araya Naidu supra that<span style=\"white-space:pre\">	</span>if a judgment/decree  is  obtained  by  playing  fraud,  it can be challenged in  any Court even in  the collateral proceedings. The courts below  after  considering  the entire material on record have passed the  impugned  order. The judgment cited by the petitioners is not applicable to the case  in  hand.  The  appellant  has already relied on the  judgment  and  passed  an  order. The petitioners have not made out any grounds for interference with the impugned order under Article </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">227  of  the  Constitution of India. Hence, I do not find any grounds to interfere with the impugned order.</b></p><p><br></p>', '57d57ef093f2df126dbacb706455e5cb.jpg', 'aed657d9d7de69d1ad864ed8ec36a339.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-01', 1, '', '', '2021-08-31 02:32:34', '2021-08-31 02:36:27'),
(2693, 'JfOet7rACVbiqrb21bL73sZ9J', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘It’s high time the haves stop despoiling the rights of have-nots; the haves, I mean, those who have power.’ Karnataka High Court restores property to the widow of the manual scavenger, which was illegally snatched by the statutory authority.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nagamma Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 21320 of 2022 decided on 16 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court seeking a direction by\r\nissuance of a writ in the nature of mandamus directing the\r\nrespondents to consider the representation submitted by her and\r\nallot a site or house in Doddabelavangala Village, Doddaballapur\r\nTaluk, Bengaluru Rural District and also further sought a direction\r\nto take immediate steps to ensure provision of rehabilitation to the\r\npetitioner and her family members in time bound manner in\r\naccordance with law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Brief facts that leads the petitioner to this Court in the\r\nsubject petition, as borne out from the pleadings, are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is the wife of one late Narasimhaiah.\r\nNarasimhaiah was forced to perform manual scavenging and he was\r\ndirected to go inside the manhole in Yehahanka, Bangalore at which\r\ntime he died due to asphyxiation because of negligence which was\r\ndirectly attributable to the 3rd respondent, Bangalore Water Supply\r\nand Sewerage Board. The petitioner and her husband belonged to\r\nScheduled Caste. The petitioner, widow of the manual scavenger\r\nwho was put to death due to the act of the 3rd respondent gave\r\nrepresentations to rehabilitate her and her family members since\r\nthey were all dependent on the income derived from the scavenging\r\nactivity of her husband. Rehabilitation was not acceded to\r\nimmediately after the death of the husband, which drove the\r\npetitioner to knock at the doors of this Court in Writ Petition\r\nNo.21320 of 2011.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. This Court disposed of the petition on 14-09-2011\r\ndirecting immediate action to be taken for rehabilitation of the\r\npetitioner. The petitioner again submitted a representation after\r\nthe order was passed by this Court and long thereafter, in the year\r\n2012, a site was allotted to the petitioner and the entries </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">concerning the site were changed in favour of the petitioner. Even\r\nafter passage of time, the petitioner could not construct the house\r\ndue to lack of funds. In the year 2022, the 6th\r\nrespondent/Panchayat Development Officer, Doddabelavangala\r\nPanchayat noticing the fact that the petitioner had not constructed\r\nany house despite passage of nine years, after allotment of the site,\r\ntook over the site and marked it for the purpose of construction of\r\nNada Kacheri. This was not made known to the petitioner. Later,\r\nwhen the petitioner enquired, she was assured that she would be\r\ngiven an alternate site. The petitioner gave plethora of\r\nrepresentations seeking re-allotment of site in her favour and the\r\n6\r\nth respondent/Panchayat Development Officer indicated to the\r\nTahsildar regarding such re-allotment. Even then no allotment was\r\nmade. It is then the petitioner has again knocked at the doors of\r\nthis Court, ironically with the same writ petition number after 11\r\nyears</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. Before embarking upon consideration of the case on its\r\nmerits, I deem it appropriate to notice the Act i.e., the Prohibition\r\nof Employment as Manual Scavengers and their Rehabilitation Act,\r\n2013 (‘the Act’ for short) and the Rules framed thereunder. Manual\r\nscavenging has been a scrooge ever since construction of drains\r\ntook place. The Government in the year 1993 promulgated an Act\r\nto provide for the prohibition of employment as manual scavengers\r\nas well as construction or continuance of dry latrines. The Act was\r\npromulgated to eliminate dehumanizing practice of employment of\r\nmanual scavengers and their rehabilitation as well. Though the\r\nrehabilitation was not emphasized to a greater degree, a new\r\nenactment came about in the year 2013 i.e., the Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. This Court while entertaining the petition has passed\r\nseveral orders directing concerned authorities to show cause as to\r\nwhy a site that was granted on the death of the husband of the\r\npetitioner was taken away contrary to law. After seeking several\r\nadjournments, the 5th respondent has identified a plot and restored\r\npossession to the petitioner within 4 days as the last of the\r\nadjournments was granted on 02-02-2023 and the matter was\r\ndirected to be listed on 07-02-2023. Time was taken up to 09-02-\r\n2023 to set the wrong, right. In one week’s time the wrong was set\r\nright, petitioner was restored possession of a property which\r\ncontains a house. This could have been done without the petitioner\r\nknocking at the doors of this Court. If it could be done within one\r\nweek on this Court questioning the action, the action could have <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">been taken without such questioning by this Court. Therefore, it is\r\nthe lack of will and display of apathy towards poor citizens by the\r\npowers that be.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n11. Though the petitioner has been restored possession, the\r\nissue does not stop at that, the petitioner would be entitled to\r\nfinancial assistance and also costs of the litigation, as the State has\r\ndriven a Scheduled Caste lady to knock at the doors of this Court\r\nfor the second time on their sheer attitude of demonstrating power\r\nover the under powered. It is because the petitioner knocked at the\r\ndoors of this Court she was restored with possession of plot despite\r\nvehement objections put up by the 6th respondent as quoted supra\r\nthat the petition should be dismissed contending that she has no\r\nright.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. It is not enough under the Act, if a plot is allotted in\r\nfurtherance of a rehabilitation in terms of 13(1)(c) of the Act to a\r\nmanual scavenger. Grant of financial assistance is imperative and\r\nthere are several other benefits that any manual scavenger who is\r\nprohibited from that work gets in terms of the Act. The situation in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the case at hand is worse. The husband of the petitioner who was\r\na manual scavenger dies due to manual scavenging, an act which\r\nwas clearly prohibited on the date on which the husband of the\r\npetitioner died. Therefore, it was the responsibility of the\r\nrespondents not only to have allotted the plot, but to have granted\r\nfinancial assistance. Section 13 supra mandates such financial\r\nassistance to persons who have been rehabilitated on prohibiting\r\nmanual scavenging and to the family of such manual scavenger\r\nwho dies during such dehumanizing job.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13. Therefore, for the act of the 6th respondent in snatching\r\naway the plot of the petitioner, a poor widow of a manual\r\nscavenger and driving her to unnecessary litigation,\r\nnotwithstanding the fact that she has now been restored possession\r\nof a plot which has a house as well, I deem it appropriate to grant\r\nthe petitioner costs which is assessed at `50,000/- to be paid jointly\r\nand severally by respondents 2, 4 and 6 and litigation expenses for\r\nsuch illegal action at `50,000/- to be paid exclusively by the 6th\r\nrespondent/Panchayat, as it is the act of the said Panchayat that\r\ntook away the right of the petitioner over the property that had</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">been granted to her by the State, pursuant to the order passed by\r\nthis Court (supra).\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>14. The petitioner shall also be granted all such financial\r\nassistance and benefits that would flow from Section 13 of the Act.\r\nThe respondents/State, particularly 2nd and 4th respondents, shall\r\noversee that all the benefits under the Act qua Section 13 are\r\nconferred upon the petitioner and not drive her to another round of\r\nlitigation. Ergo, it is high time that “the haves stop despoiling\r\nthe rights of have-nots; the haves, I mean, those who have\r\npower.”</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDE<span style=\"font-size: 12pt;\">R</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>(i) Writ Petition is allowed with cost of `50,000/- to be\r\npaid to the petitioner by respondents 2, 4 and 6\r\njointly and severally. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e3d101099bccb4f5ed7fad18d5256329.jpeg', 'fddab9466a94e4fc98e68e451bc4e0c1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-20', 1, '', '', '2023-02-17 14:29:26', '2023-02-20 07:23:45'),
(986, '92uu355WTSmIO8saAVx11S49U', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Section 11. Resjudicata between co-defendants. Three principles governing the issue explained. Supreme Court. ', '<p><b>Union of India and another vs S. Narasimhulu Naidu by Lrs.&nbsp;</b></p><p><b>Civil Appeal 2049 of 2013 decided on 27 August 2021</b></p><p><b>Justice Sanjay Kishan Kaul and Justice Hemant Gupta&nbsp;<br></b></p><p><b>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2012/13131/13131_2012_35_1501_29597_Judgement_27-Aug-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2012/13131/13131_2012_35_1501_29597_Judgement_27-Aug-2021.pdf</a></b></p><p><b>34. The issue as to whether there can be res judicata between codefendants was first examined by the Privy Council in a\r\njudgment reported as Munni Bibi (since deceased) &amp; Anr. v.\r\nTirloki Nath &amp; Ors.\r\nAIR 1931 PC 114. The three principles of res judicata as\r\nbetween co-defendants were delineated as: <u>(1) There must be a&nbsp;conflict of interest between the defendants; (2) it must be\r\nnecessary to decide this conflict in order to give the plaintiff the\r\nrelief he claims; (3) the question between the defendants must\r\nhave been finally decided. </u>..The\r\nsaid principle was reiterated by this Court in a judgment\r\nreported as Mahboob Sahab v. Syed Ismail and Others&nbsp;(1995) 3 SCC 693&nbsp;wherein it has been held as under:</b></p><p><b><i>“8. Under these circumstances the question emerges\r\nwhether the High Court was right in reversing the\r\nappellate decree on the doctrine of res judicata. At this\r\njuncture it may be relevant to mention that the trial\r\ncourt negatived the plea of res judicata as a preliminary\r\nissue. Though it was open to sustain the trial court\r\ndecree on the basis of the doctrine of res judicata, it was\r\nnot argued before the appellate court on its basis.\r\nThereby the findings of the trial court that the decree in\r\nOS No. 3/1/1951 does not operate as res judicata\r\nbecame final. The question then is whether the doctrine\r\nof res judicata stands attracted to the facts in this case.\r\nIt is true that under Section 11 CPC when the matter has\r\nbeen directly or substantially in issue in a former suit\r\nbetween the same parties or between parties under\r\nwhom they or any of them claimed, litigating under the\r\nsame title, the decree in the former suit would be res\r\njudicata between the plaintiff and the defendant or as\r\nbetween the co-plaintiffs or co-defendants…”&nbsp;</i></b></p><p><b>35.&nbsp;In a recent judgment reported as Govindammal (Dead) by\r\nLRs &amp; Ors. v. Vaidiyanathan &amp; Ors.\r\n(2019) 17 SCC 433, the applicability of res\r\njudicata between co-defendants was examined. The applicants\r\nwere the defendants in the first suit and so were the appellants.&nbsp;In the aforesaid case, the suit was filed by the respondents\r\nclaiming title over A Schedule property or in the alternative for\r\npartition of half share in B Schedule property. The Court\r\nconsidered the principle of res judicata within the co-defendants\r\nin para 14 which reads as under:</b></p><p><b><i>“14. However, there exist certain situations in which\r\nthe principles of res judicata may apply as between codefendants. This has been recognised by the English\r\ncourts as well as our courts for more than a century.\r\nThe requisite conditions to apply the principle of res\r\njudicata as between co-defendants are that (a) there\r\nmust be conflict of interest between the defendants\r\nconcerned, (b) it must be necessary to decide this\r\nconflict in order to give the plaintiff the relief he claims,\r\nand (c) the question between the defendants must have\r\nbeen finally decided. All the three requisite conditions\r\nare absent in the matter on hand. Firstly, there was no\r\nconflict of interest between the defendants in the suits\r\nfiled by the temple and the school. Secondly, since\r\nthere was no conflict, it was not necessary to decide\r\nany conflict between the defendants in those suits in\r\norder to give relief to the temple or the school, which\r\nwere the plaintiffs. On the other hand, the father of the\r\nplaintiffs and the father of the defendant were colluding\r\nin those suits filed by temple and school. Both of them\r\nunitedly opposed those suits. In view of the same, the\r\nprinciples of res judicata would not apply.”</i>&nbsp;</b></p><p><b><br></b><br></p>', '114e7442056b4b53833610e6dfe05c4b.JPG', '5c44771322763ae9899d7ae34e437318.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-27', 1, '', '', '2021-08-31 23:22:05', '2021-08-31 23:22:05'),
(987, 'hmFEYFRVOIib4eEapzGU8BTLT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cancellation of bail granted by trail court. When there is prima facie strong materials placed on record to show that the accused have committed serious crime, power to cancel bail has to be exercised. Karnataka High Court. ', '<p><b>Imran vs The State of Karnataka and others.&nbsp;</b></p><p><b>Criminal Petition 2557 of 2021 decided on 26 August 2021.&nbsp;</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/404568/1/CRLP2557-21-26-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/404568/1/CRLP2557-21-26-08-2021.pdf&nbsp;</a></b><br></p><p><b>Case law referred.&nbsp;</b></p><p><b>1) Brij Nandan Jaiswal vs.&nbsp; Munna&nbsp; alias&nbsp; Munna Jaiswal and Another reported in (2009) 1 SCC 678 (relevant para 12)</b></p><p><b>2) Kalyan Chandra Sarkar vs. Rajesh&nbsp; Ranjan alias Pappu Yadav and Another reported in (2004) 7 SCC 528.</b></p><p><b>3) Puran v/s Rambilas and Another reported in (2001) 6 SCC 338 (relevant Para head note B, C, D, E, F).</b></p><p><b>4) Sonu v/s Sonu Yadav and Another in Crl.A.No.377/2021 (relevant Para 11).</b></p><p><b>5) The State of Kerala v/s Mahesh in Crl.A.No.343/2021 (relevant Para 22).</b></p><p><b>6) Sudha Singh v/s The State of Uttar Pradesh<span style=\"white-space:pre\">	</span>and<span style=\"white-space:pre\">	</span>Another<span style=\"white-space:pre\">	</span>in Crl.A.No.448/2021 (relevant Para 11 &amp; 12).</b></p><p><b>1) Dolat<span style=\"white-space:pre\">	</span>Ram and<span style=\"white-space:pre\">	</span>Others vs. Stateof Haryana reported in (1995) 1 SCC 349.</b></p><p><b>2) Kashmira Singh vs. Duman Singh reported in (1996) 4 SCC 693.</b></p><p><b>3) Subhendu Mishra vs. Subrat Kumar Mishra &amp; Another reported in 2000 SCC (Cri) 1508.</b></p><p><b>4) Mahant Chand Nath Yogi &amp; Another vs. State of Harayana reported in (2003) 1 SCC 326.</b></p><p><b>5) Samarendra Nath Bhattacharjee&nbsp; vs. State of W.B. &amp; Another reported in (2004) 11 SCC 165.</b></p><p><b>6) Hazari Lal Das vs. State of West Bengal and Another reported in (2009) 10 SCC 652.</b></p><p><b>7) Myakala Dharmarajam &amp; Others vs.&nbsp; State of Telangana &amp; Another reported in (2020) 2 SCC 743.</b></p><p><b>8) Prabhakar Tewari vs. State of Uttar Pradesh and Another reported in (2020) 11 SCC 648.</b></p><p><b>9) State by Alur Police vs. Kumara reported in 2016 SCC Online Kar 448.</b></p><p><b>10) Khajim vs. State of Karnataka reported&nbsp; in 2019 SCC Online Kar 2642.</b></p><p><b>11) Miss. Anuradha Baliga vs. Sri. Mangalpady Naresh Shenoy and Another reported in ILR 2019 KAR 2922.</b></p><p><b>12) State of U.P. Through CBI vs. Amarmani Tripathi reported in (2005) 8 SCC 21.</b></p><p><b>13) CBI, Hyderabad vs. Subramani Gopalakrishnan and Another reported in (2011) 5 SCC 296.</b></p><p><b>14) X vs. State of Telangana and Another reported in (2018) 16 SCC 511.</b></p><p><b>15) Bhadresh Bipinbhai Sheth vs. State of Gujarat and Another reported in (2016) 1 SCC 152.</b></p><p><b>16) Mir Altamash Ali vs. Mohd. Akbar &amp; Others in Crl.P.15927/2012,&nbsp; High Court of Karnataka Dated 25/09/2012.</b></p><p><b>17) Mangesh Kaisare vs. The State of Karnataka<span style=\"white-space:pre\">	</span>and<span style=\"white-space:pre\">	</span>Another<span style=\"white-space:pre\">	</span>in Crl.P.3056/2014 and connected matters, High Court of Karnataka dated 09/06/2014.</b></p><p><b>18) Directorate General of Central Excise vs.</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">N. Santhosh Kumar in Crl.P.7523/2017, High Court of Karnataka dated 05/03/2018.</b></p><p><b>19) Umashankar vs. State of Karnataka and Another in Crl.P.9215/2017, High Court&nbsp; of Karnataka dated 23/04/2018.</b></p><p><b>30. On perusal of the judgments of Hon’ble Supreme Court especially cancellation of bail by the Courts by exercising the power under Section 439(2) of Cr.P.C., and the guidelines issued by the Hon’ble Supreme Court while considering such applications by keeping in mind the guidelines and judgments of the Hon’ble Supreme Court as the Court cannot cancel the bail mechanically, once the&nbsp; &nbsp;bail is granted to the accused and it cannot be cancelled without any proper reason.</b></p><p><b>Here in these cases, statement of the 14 eye-witnesses&nbsp; and 2 injured eye-witnesses shows that there&nbsp; is&nbsp; prima facie strong materials placed on record to show that the accused have committed murder. The trial Court while granting bail has not considered the nature and gravity of the accusations, severity of the punishment in the event of bail, likelihood of repetition of the offences and the reasonable apprehension of the witnesses&nbsp; being&nbsp; influenced. Therefore, the order of learned Sessions Judge having granted bail is required to be cancelled as the findings are perverse and the reason is insufficient for granting bail</b></p><p><b><br></b></p><p><br></p>', '7023173b88d0582fe9ca0352b5db53ac.jpg', 'd0b1e7e423751e93965f9c78582bf65d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-26', 1, '', '', '2021-09-02 02:36:17', '2021-09-02 02:36:17'),
(988, 'oJAlgVofPTJKdU458odhBk0ul', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Minimum qualifications for appointments prescribed under the UGC guidelines are for the purpose of maintaining excellence in the higher standards of education. Universities have no power to relax them. Karnataka High Court.   ', '<p><b>Manjunath Mallinath Hiremath, vs The Karnataka University&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Dharwad, and another&nbsp;</span></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Writ Petition 100859 of 2016 decided on 26 August 2021.</b></span></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link:&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/404415/1/WP100859-16-26-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/404415/1/WP100859-16-26-08-2021.pdf</a></span></b></p><p><b>The petitioner, who was one of the candidates who had applied for the post of Assistant Professor (PG) in English, in response to the notification/advertisement dated 11.01.2014 published by the 1st respondent, has approached this Court challenging the office order dated 26.02.2014 issued by the 1st respondent vide Annexure-K appointing the 2nd&nbsp; respondent&nbsp; to the post of Assistant Professor (PG) in English and also with a prayer to issue a writ of mandamus directing the 1st respondent&nbsp; to consider the case of the petitioner for appointment to the said post of Assistant Professor (PG) in English.</b></p><p><b>10.<span style=\"white-space:pre\">	</span>The UGC Regulations 2010 have been framed by the University Grants Commission in exercise of the powers conferred on it under clauses (e) and (g) of sub-section (1) of Section 26 of the University Grants Commission Act, 1956. It is in exercise of this power under Section 26(1)(e) and (g), the University Grants Commission has made the minimum qualifications for appointment of Associate Professor and other posts in Universities. This minimum eligibility qualification cannot be relaxed by any University or College where as any qualification over and above this minimum can be prescribed by the Universities or Colleges. The UGC has prescribed the minimum eligibility qualification with an object of maintaining standards in the higher education. Attempt to lower this norm will have an adverse effect on the standards of education in the institutions of higher education which would defeat the very object of the UGC which is a apex expert body.&nbsp;</b></p><p><b><span lang=\"EN-US\" style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11.<span style=\"font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: \" times=\"\" new=\"\" roman\";\"=\"\">&nbsp; </span></span><span lang=\"EN-US\" style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The\r\nUGC is a expert body and in its regulations has prescribed the minimum\r\neligibility qualifications to apply for<span style=\"letter-spacing:-1.55pt\"> </span>the\r\npost of Assistant Professor. The committee of experts constituted<span style=\"letter-spacing:.55pt\"> </span>by<span style=\"letter-spacing:.6pt\"> </span>the<span style=\"letter-spacing:.7pt\"> </span>first<span style=\"letter-spacing:.55pt\"> </span>respondent<span style=\"letter-spacing:.55pt\"> </span>is<span style=\"letter-spacing:.75pt\"> </span>required<span style=\"letter-spacing:.7pt\"> </span>to<span style=\"letter-spacing:.6pt\"> </span>strictly<span style=\"letter-spacing:.6pt\"> </span>follow&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the regulations and it cannot substitute its own reasoning for overlooking the regulations which provide for minimum eligibility qualifications. It is true that in matter of appointment/selection by an expert committee/board, the Courts should be slow in interfering with the decision taken by experts, but on the face of the record, when the selection committee has ignored or overlooked the minimum eligibility qualifications prescribed by the UGC which is an expert body the Courts cannot be a mute spectator. The petitioner not only possessed all the minimum eligibility qualifications prescribed by the UGC regulations of 2010, but he also was the highest mark scorer at the Maters Degree level among the candidates. The selection committee has overlooked all these aspects and appointed the 2nd respondent who did not even possess the prescribed minimum eligibility qualification.</span></b></p><p><b>12.<span style=\"white-space:pre\">	</span>The UGC has prescribed the minimum eligibility qualification for appointment of Assistant Professor (PG)&nbsp; in English and the&nbsp; notification/advertisement&nbsp; dated&nbsp; 11.01.2014 was issued prescribing the minimum eligibility&nbsp; qualification&nbsp; as per the Regulations of 2010 and it was not open to the 1st respondent or the selection committee to relax any one of the minimum requirement qualifications. The 1st&nbsp; respondent University by issuing a certificate of exemption in favour of the&nbsp; 2nd respondent stating that she was not required to undergo course work because she was admitted to Ph.D. Degree course during the year 2006-07 has relaxed the minimum eligibility qualification prescribed by the UGC Regulations of 2010. The minimum qualifications are prescribed for the purpose of maintaining excellence in the higher standards of education and any exemption given would lead to compromising the standard&nbsp; &nbsp;of education and therefore, the appointment of the 2nd respondent, who neither had cleared any of the three eligibility tests conducted either by the UGC or CSIR, nor had obtained a Ph.D. Degree under the Regulations of 2009, nor had obtained Ph.D. Degree with course work, cannot be sustained. Under the circumstances, I proceed to pass the following:</b></p><p><b>(i)<span style=\"white-space: pre;\">	</span>Writ petition is allowed.</b></p>', '5c55102c4aba5e35c42798019eaa5174.jpg', '0d25ebd46f51bf5b8decf3f792f3af54.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-26', 1, '', '', '2021-09-02 02:57:56', '2021-09-02 02:59:02'),
(989, 'mtaPhW58kFK1I3WxCDPZ0JAnh', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Income Tax Act, 1961. Tax refund due and payable to an assessee is a debt owed by the Government and must carry interest as a matter of course, since it is a kind of recompense for the ‘unauthorized use or retention’  of  money. Karnataka High Court.', '<p><b>Wipro Limited vs The Joint Commissioner of Income Tax</b></p><p><b>Writ Petition 20040 of 2019 decided on 25 August 2021.</b></p><p><b>Judgment Link: <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/404200/1/WP20040-19-25-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/404200/1/WP20040-19-25-08-2021.pdf</a></span></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The tone for this judgment may be set by quoting what Richard Brinsley Sheridan, an acclaimed Irish dramatist of 18th century, on being asked by his tailor for at least the interest of his bill had retorted:</b></p><p><b><i>\"It is not my interest to pay the principal, nor my principle to pay the interest\".</i></b></p><p><b>2. Petitioner Assessee inter alia engaged in the business of manufacture of computer software & providing IT enabled services, is knocking at the doors of Writ Court for assailing the order dated 29.03.2019, a copy whereof is at Annexure-A whereby the second respondent-DCIT having negatived its application dated 22.03.2019  filed  u/s  244A(1A) of the  Income  Tax  Act,  1961  (hereafter  ‘1961  Act’)  has denied additional 3%  interest  on  the  allegedly  delayed  refund of amount relatable to Assessment Year 2008-09.</b></p><p><b>I. Some legal principles & morals which are to animate levy of tax and refund of un-taxable:</b></p><p><b>(i) A great Indian poet Kalidasa (500 CE) in his epic poem \"Raghuvamsham\" (1-18) states: “The King Dilip collects from his subjects only 1/6th of their income as tax for  the  welfare of State, indeed like the sun taking  earthly  water  drops, only to indemnify her with multiples of rain-drops…” Chanakya in his acclaimed work \"Arthashastr\" advises the</b></p><p><b>Rulers: “Collect taxes from the citizens as honeybees collect nectar from the flowers, gently and without inflicting pain…”;</b></p><p><b>(ii) A renowned jurist of yester-decades late Mr. Nani Palkhivala, in the concluding paragraph of Preface to the Eighth Edition of \"The Law and Practice of Income Tax\" said \"Every Government has a right to levy taxes. But no Government has the right, in the process of extracting tax, to cause misery and harassment to the taxpayer and the gnawing feeling that he is made the victim of palpable injustice.\"; the function of the Assessing Officer is to administer the statute with solicitude for the  Public Exchequer with an inbuilt idea of fairness to tax payers; this view finds expression in the decision of the Apex Court  in ACIT vs. Rajesh Jhaveri Stock Brokers P. Ltd. (2007) 291 ITR 500 (SC).</b></p><p><b>(iii)<span style=\"white-space:pre\">	</span>Walton J. had observed in Vestey v. Inland Revenue Commissioners [1979] Ch  177 (197 – 198) “I conceive it to be in the national interest, in the interest not only  of  all  individual tax payers – which includes most of the nation – but also in the interests of the Revenue authorities themselves, that the tax </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">system should be fair… One should be taxed by law,  and not     be untaxed by concession … A tax system which enshrines obvious injustices is brought into disrepute with all tax-payers accordingly, whereas one in which injustices, when discovered, are put right (and with retrospective effect  when  necessary) will command respect and support...”.</b></p><p><b>(iv)<span style=\"white-space:pre\">	</span>A Welfare State like ours is constitutionally expected to be fair & reasonable in dealing with the subjects and it must avoid any harassment to the assessee public, without causing any loss to the Exchequer (see Nokia Corporation v. Director of Income-tax [2007] 292 ITR 22 (Delhi HC); the State as constitutionally ordained, needs to conduct itself as a virtuous litigant and should meet honest claims; this view finds resonance in the decision of the Apex Court in State of U.P. v. Manohar [2005] 2 SCC 126; the maxim actus curiae neminem gravabit, i.e., an act of court shall prejudice none, is equally applicable to the quasi-  judicial functions of Tax Authorities, as well.</b></p><p><b>(v) Article 265 of the Constitution of India mandates that no tax shall be levied or collected except by authority of </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">law; if a tax has been paid in excess of the tax  specified,  the  same has to be refunded; in Tata  Chemicals 363  ITR  658  (SC), the Apex Court reasoned out why State should  pay  interest for holding tax payers\' money; a “tax  refund”  is  a  refund of taxes when the tax liability is less than the tax paid; when the  said amount  is refunded,  it should carry interest as     a matter of course, since it is a kind of recompense for the ‘unauthorized use or retention’  of  money;  refund  due  & payable to an  assessee  is  a  debt  owed;  Parliament  has  enacted this principle in Section 244A of the 1961 Act; in Aluminium Corporation of India Ltd. v UOI 1978 (2) ELT 452 (SC) the Apex Court  observed  that  a  good  government involves not only diligent collection of taxes, but also ready refunds of excess levies.</b></p><p><b>VII. Payment of interest on delayed refunds u/s. 244A(1A):</b></p><p><b>(i) This provision has been brought on the statute book vide Finance Act, 2016 w.e.f. 01.06.2016; entitlement of an assessee to the interest on delayed refund as envisaged under this provision to some extent brings a sort of parity in the converse situation where he is liable to pay interest for delayed payment of taxes in terms of section 234B; it may be pertinent to note that it was inserted and brought into effect from the same time as section 153  was  substituted  by Finance  Act, 2016; similarly, section 153(5) was substituted by Finance Act, 2016 prescribing the time limit to give effect  to the orders passed under the sections mentioned therein, wholly or partly, otherwise than by making a  fresh assessment or reassessment; prior to such amendment, no time limit was prescribed for passing of OGE; it may be noted that the requirement of paying interest u/s 244A(1A) has </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">been brought in for the cases covered u/s 153(5).</b></p><p><b>(ii) The legislative intention in enacting section 244A(1A) can be discerned from the Memorandum explaining the provisions of the Finance  Bill, 2016</b></p><p><b>(iii) Interest u/s 244A(1A) would not accrue in cases of fresh assessment or reassessment; use of words ‘wholly or partly’ therein would again indicate that the bar of interest accrual is confined only to that part of the  assessment that  are occasioned by remittance/remand and would not extend to other concluded issues that give rise to refund u/s 153(5); employment of identical language in section 153(5) and section 244(1A) too supports this analogy; it is clear that section 244A(1A) would apply to cases covered u/s 153(5); thus where, in respect of certain issues, order giving effect to be passed u/s 153(5), otherwise than by making a fresh assessment or reassessment is passed beyond the prescribed time-limit, interest u/s 244A(1A) has to be granted in respect of refund arising on such issues that are concluded and that the pendency of consideration on remitted issues does not interdict the statutory accrual of interest; an argument to the contrary cannot be countenanced without straining the text & context of the provision.</b></p><p><b>(iii)<span style=\"white-space:pre\">	</span>The vehement contention of the Revenue essentially structured on the text of section 4 of the  1961  Act  that  any  order giving effect to the order of the ITAT will result in re- determination of the assessee\'s total income and therefore will constitute a fresh assessment, if  accepted,  would  inexorably lead to the result that the Revenue can invariably retain the refund determined, without the liability to pay the additional interest in terms of Sec.244A(1A) for the delayed period; that would also lead to  an  absurd  conclusion  that  every  OGE  has to be considered as a fresh assessment or reassessment and therefore would be outside the purview of Sec.153(5) and consequently any delay in  granting  actual  refund  would  also  be outside the ambit of Sec.244A(1A); this  would  defeat  the  very object for which this provision has been brought on the statute book.</b></p><p><b>i) A Writ of Certiorari issues quashing the impugned order; petitioner-Assessee is permitted to submit the fresh claim for additional interest at the rate of 3% per annum for the period envisaged in section 153(5) r/w section 244A(1A), within eight weeks.</b></p><p><b>ii) A Writ of Mandamus issues to the respondents to compute the interest amount till date and pay it to the petitioner- Assessee within eight weeks next following.</b></p><p><b>iii) If delay is brooked in complying the above direction, the Revenue shall pay to the petitioner - Assessee an extra interest, at the rate of 1.5 % per month  and  this  amount,  after payment, may be recovered personally from the erring officials of the Department.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Now, no costs.</b></p><div><br></div>', '3a2c1e0625d652a872fba096b2da74b0.jpg', '0125fee58b784ec02e602255179d19dc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-25', 1, '', '', '2021-09-02 19:27:33', '2021-09-02 19:30:12'),
(991, '1ARlnw19CH6Uja8pHoMZviHH4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Caste Certificate. There can not be repeated inquiries for verification of caste certificate. Re-opening can be only in case the certificates are vitiated by fraud or they they were issued without proper inquiry. Supreme Court.', '<p><b>J. Chitra vs District Collector and Chairman\r\nState Level Vigilance Committee,\r\nTamil Nadu & Ors</b></p><p><b>Civil Appeal No. 5160 of 2010 decided on 2 September 2021.</b></p><p><b>Justice L. Nageswara Rao and Justice Aniruddha Bose. </b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2009/2357/2357_2009_35_1501_29719_Judgement_02-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2009/2357/2357_2009_35_1501_29719_Judgement_02-Sep-2021.pdf</a><br></b></p><p><b>8. In the instant case, an inquiry was conducted by the\r\nDistrict Level Vigilance Committee which has upheld the\r\ncommunity certificate in favour of the Appellant. The\r\ndecision of the District Level Vigilance Committee in the year\r\n1999 has not been challenged in any forum. The recognition\r\nof the community certificate issued in favour of the Appellant\r\nby the District Vigilance Committee having become final, the\r\nState Level Scrutiny Committee did not have jurisdiction to\r\nreopen the matter and remand for fresh consideration by the\r\nDistrict Level Vigilance Committee. The guidelines issued by\r\nG.O.108 dated 12.09.2007 do not permit the State Level\r\nScrutiny Committee to reopen cases which have become\r\nfinal. The purpose of verification of caste certificates by\r\nScrutiny Committees is to avoid false and bogus claims.\r\nRepeated inquiries for verification of caste certificates would\r\nbe detrimental to the members of Scheduled Castes and </b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Scheduled Tribes. Reopening of inquiry into caste certificates\r\ncan be only in case they are vitiated by fraud or when they\r\nwere issued without proper inquiry</b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span><br></p>', '69eae75439e68caaff38f732d718f06b.JPG', '82a77408d21192f5d6a2c91da2ee460e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-02', 1, '', '', '2021-09-03 03:01:05', '2021-09-03 03:02:42');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(992, '2ljEX76tH90leusPVo0RbbhWE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Where dispute is purely personal like challenging removal of trustee etc, without touching administration of the trust, Section 92 does NOT apply and obtaining leave is not necessary. Karnataka High Court.', '<p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Muhammad Azhar Ali vs Abdul Razzaq Bidri </b><br></p><p><b>Civil Revision Petition 200007 of 2018 decided on 31 August 2021. </b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/404874/1/CRP200007-18-31-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/404874/1/CRP200007-18-31-08-2021.pdf</a></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">14...No doubt, the plaintiffs in their plant itself, in paragraph 7, have stated that, the act of the defendants is illegal, un- authorised, and against the provisions of the Trusts Act and also against the mandate of Section 92 of the CPC. However,  that single sentence cannot be isolated from the pleadings of the plaintiffs and given a separate meaning. When the averments of  the plaint are read in its entirety, as already observed above, the plaintiffs\' main grouse is about ousting them from the trusteeship of the Trust, which is a Public  Trust  and  inducting  the  defendants No.5 to 7 as the  Trustees  by  making  a Supplementary Deed of Trust dated 10-04-2003. Merely because the plaintiffs were removed from their Trusteeship, by itself, would </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not attract the provisions of Section 92 of the CPC, since, admittedly, the present suit is not a representative suit instituted by the learned Advocate  General or two or more persons having  an interest in the Trust. The plaintiffs have not sought for any direction for the administration of the  Trust, on the other hand,  the suit is filed by the plaintiffs to vindicate their personal rights, </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">i.e. to claim back their alleged positions as Trustees of the Charitable Trust and for cancellation of two resolutions and the Supplementary Deed of Trust.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15.<span style=\"white-space:pre\">	</span>In a similar circumstance, in the case of Rabiammal Ahamed Maideen Educational Trust, A public charitable Trust represented by its Secretary and Correspondent, S.M. Miskeem & others Vs. K.A. Ahamed Maideen Represented by his Power Agent </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">N.M.A. Noor Maideen &  others  reported  in  2012-4-L.W.141,  the  High Court of Judicature at Madras was pleased to observe that, where the allegation of breach of trust, direction for administration of Trust is absent, the suit is maintainable and obtaining leave under Section 92 of the CPC is not necessary. It was further observed in the same judgment that, in the absence of seeking  any  direction for the  administration  of  the  Trust and  the  suit is </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">filed for the relief of declaration that the Supplementary and amended Deed of Trust are illegal, null and void and also challenging the removal of some of the plaintiffs, then the suit is   to be considered as the one filed to vindicate one\'s personal rights, as such, the suit does not fall within the purview of Section 92 of the CPC.</b></p><p><b>16. As observed above, in the instant case, since there is no direction sought for the administration of the Trust, on the other hand, the suit is filed by the alleged erstwhile Trustees seeking the relief of declaration that, the resolutions dated 15-01-2015 and 15-02-2015 are illegal and not binding upon them and also have sought for the relief of declaration that the Supplementary Deed of Trust document dated 05-03-2015 is illegal, non-est and further sought for the relief of permanent injunction against the defendants. Thus, it cannot be held that, merely because the plaintiffs at one place in the plaint have stated that there is violation of mandate under Section 92 of the CPC, the suit is hit by Section 92 of the CPC, as such, it has to be instituted in the Principal Court of the Original jurisdiction under the said Section. Thus, the </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">other point of argument of the learned counsel for the petitioner/applicant, is also not acceptable.</b></p><p><b>17.<span style=\"white-space:pre\">	</span>It is considering the nature and scope of the suit and  the relief sought for in the plaint, the Trial Court has rightly rejected the interlocutory application – I.A.No.II filed by the defendant No.4 (present petitioner) under Order VII, Rule 11(d) of the CPC. I find no illegality, irregularity or impropriety in the impugned order, warranting interference at the hands of  this Court.</b></p><p><b>O R D E R</b></p><p><b>The Civil Revision Petition stands dismissed as devoid of any merit.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'd63b0517ca8c86ed5c60ebfcfcfa86a5.jpg', 'b2c4e76fc9bd6cb5e8a2454a4d9eef9a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-31', 1, '', '', '2021-09-03 03:23:10', '2021-09-03 03:24:47'),
(993, '10XANl323jyev5EmxkCZeDmC1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka SC-ST (PTCL) Act, 1978.  Delay of 16 years from the date of sale in filing application for resumption and restoration of granted land. Karnataka High Court quashes the entire proceedings.  ', '<p><b>2021 SCC OnLine Kar 12111 : (2021) 2 AIR Kant R 730</b></p><p><b>Srinivas Murthy and Others vs </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">State of Karnataka and Others </b></p><p><b>W.A. No. 186/2021 (SC-ST)1. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Decided on March 31, 2021</b></p><p><b>S. Vishwajith Shetty, J.:— This writ appeal is filed challenging the order dated 12.01.2021 passed by the learned Single Judge of this Court in W.P. No. 5604/2018 (Sri. Srinivas Murthy, since dead by his LRs v. State of Karnataka).</b></p><p><b>2. For the sake of convenience, the parties are referred to as per their rankings in the writ petition.</b></p><p><b>3. Brief facts of the case are, one Mugappa was granted 3 acres of land in Sy. No. 10/P60 situated at Balajigapade village, Nandi Hobli, Chikkaballapura Taluk (hereinafter referred to as ‘the land in question’), on 29.10.1977. The seguvali chit in respect of the granted land in question was issued to the original grantee on 18.06.1984. As per the grant condition, there was a non-alienation clause for a period of 15 years in respect of the land in question. In violation of the same, the land in question was sold by the original grantee under a registered sale deed dated 14.08.1989 in favour of T. Nagabhushana. The said T. Nagabhushana, subsequently under a registered sale deed dated 05.02.1991 sold the land in question in favour of Sri. Srinivas Murthy. The respondents 3 & 4 who are the wife and son of the original grantee - Mugappa, in the year 2006 filed an application for resumption and restoration of the land in question in their favour contending that the sale made by the original grantee dated 14.09.1989 was hit by the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, ‘PTCL Act’). Respondent no. 2 - Assistant Commissioner allowed the said application filed by respondents 3 & 4 vide order dated 04.03.2011 which was confirmed by respondent no. 2 - Deputy Commissioner by his order dated 23.12.2013. Being aggrieved by the same, the legal representatives of the subsequent purchaser - Srinivas Murthy approached this Court by filing W.P. No. 5604/2018, which was dismissed by the learned Single Judge by the order impugned herein.</b></p><p><b>4. Learned Counsel for the petitioner\'s submits that the learned Single Judge had erred in dismissing the writ petition on the ground of delay. He submits that the delay has been properly explained and inspite of the same, without taking into consideration the delay of 16 year\'s caused by the legal representatives of the original grantee in filing the application for restoration, the learned Single Judge has dismissed the writ petition on the ground of delay which is only four years. He submits that the learned Single Judge has failed to properly appreciate the law laid down by the Hon\'ble Apex Court in the case of Nekkanti Rama Lakshmi v. state of KARNATAKA - 2017 SCC OnLine SC 1862, and in the case of Vivek M. Hinduja v. M. Ashwatha - 2017 SCC OnLine SC 1858.</b></p><p><b>5. Per contra, learned Counsel appearing for respondents 3 & 4 submits that the judgment of the Apex Court in the case of Nekkanti Rama Lakshmi\'s case (supra) applies to the petitioners also. He submits that the son of the subsequent purchaser - Srinivas Murthy was present before the Deputy Commissioner on 18.02.2013 which has been noted in the order sheet, and therefore, he was very much aware of the proceedings. The explanation given by the petitioners is, therefore, not genuine. The learned Single Judge having considered this aspect of the matter has rightly dismissed the writ petition.</b></p><p><b>6. We have carefully considered the rival arguments and also the material available on record.</b></p><p><b>7. It is an admitted fact that the land in question was granted to the original grantee - Mugappa on 29.10.1977 and he had sold the said land in violation of the non-alienation clause to one T. Nagabhushana under a registered sale deed dated 14.09.1989. The said T. Nagabhushana has subsequently sold the land in question to Sri. Srinivas Murthy under a registered sale deed dated 05.02.1991 and ever since then, he has been in possession and enjoyment of the said land. During the lifetime of Mugappa, he had not filed any application for resumption and restoration of the land in question. After the death of Mugappa, respondents 3 & 4 who are his wife and son, have belatedly filed an application under Section 5 of the PTCL Act, which has admittedly come into force with effect from 01.01.1979. The Hon\'ble Supreme Court in the case of Nekkanti Rama Lakshmi\'s case (supra), in paragraph 8 has held as under:</b></p><p><b><i>“8. However, the question that arises is with regard to terms of Section 5 of the Act which enables any interested person to make an application for having the transfer annulled as void under Section 4 of the Act. This Section does not prescribe any period within which such an application can be made. Neither does it prescribe the period within which suo motu action may be taken. This Court in the case of Chhedi Lal Yadav v. Hari Kishore Yadav (D) Thr. Lrs., (2017) 6 Scale 459 and also in the case of Ningappa v. Dy. Commissioner (C.A. No. 3131 of 2007, decided on 14.07.2011) reiterated a settled position in law that whether Statute provided for a period of limitation, provisions of the Statute must be invoked within a reasonable time. It is held that action whether on an application of the parties, or suo motu, must be taken within a reasonable time. That action arose under the provisions of a similar Act which provided for restoration of certain lands to farmers which were sold for arrears of rent or from which they were rejected for arrears of land from 1st January, 1939 to 31st December, 1950. This relief was granted to the farmers due to flood in the Kosi River which make agricultural operations impossible. An application for restoration was made after 24 years and was allowed. It is in that background that this Court upheld that it was unreasonable to do so. We have no hesitation in upholding that the present application for restoration of land made by respondent-Rajappa was made after an unreasonably long period and was liable to be dismissed on that ground. Accordingly, the judgments of the Karnataka High Court, namely, R. Rudrappa v. Deputy Commissioner, (2000) 1 Kant LJ 523, Maddurappa v. State of Karnataka, (2006) 4 Kant LJ 303 and G. Maregouda v. The Deputy Commissioner, Chitradurga District, Chitradurga, (2000) 2 Kant LJ (SN) 4B holding that there is no limitation provided by Section 5 of the Act and, therefore, an application can be made at any time, are overruled. Order accordingly.”</i></b></p><p><b>8. In Vivek M. Hinduja\'s case (supra), the Hon\'ble Supreme Court at paragraph 10 has held as under:</b></p><p><b><i>“10. We are in respectful agreement with the aforesaid observations. It is, however, necessary to add that where limitation is not prescribed, the party ought to approach the competent Court or authority within reasonable time, beyond which no relief can be granted. As decided earlier, this principle would apply even to suo motu actions.”</i></b></p><p><b>9. In the present case, the application for resumption and restoration of the land in question has been admittedly filed by the legal representatives of the original grantee in the year 2006 i.e., after a delay of 16 years after the PTCL Act came into force. Since the application for restoration has been filed after inordinate delay, the judgment of the Hon\'ble Supreme Court in Nekkanti Rama Lakshmi\'s case (supra) is applicable to the facts of the present case. However, the learned Single Judge taking into consideration that the writ petition has been filed challenging the order passed by the Deputy Commissioner after a delay of four years, has dismissed the writ petition on the ground of delay without going into the merits of the matter.</b></p><p><b>10. The restoration application challenging the first sale by the original grantee was filed by his legal representatives with a delay of 16 years. Sri. T. Nagabhushana who was the purchaser of the land in question under the first sale deed was not made as a party to the proceedings by the legal representatives of the original grantee. The order passed by the Assistant Commissioner dated 04.02.2011 was challenged by the subsequent purchaser - Sri. Srinivas Murthy before the Deputy Commissioner. The appeal filed by Sri. Srinivas Murthy before the Deputy Commissioner was dismissed by order dated 23.12.2013. Srinivas Murthy has died on 31.12.2013 i.e., after a few days from the date of the order passed by the Deputy Commissioner. The writ petition is filed by the legal representatives of the said Srinivas Murthy. The delay in filing the writ petition has been explained by the petitioners in paragraph 6 of the writ petition. They have stated that their father Srinivas Murthy was looking after the litigation who expired immediately after the order was passed by the Deputy Commissioner and the petitioners were not aware of the said order till respondents 3 & 4 tried to interfere with their possession of the land in question. It has come on record that the petitioners have filed an application seeking certified copy of the order passed by the Deputy Commissioner on 10.07.2017 and the copy was received by them on 26.07.2017. Within a few months thereafter, they have filed the writ petition before this Court. There is nothing on record to show that the petitioners or their father Srinivas Murthy had obtained the certified copy of the order passed by the Deputy Commissioner prior to 26.07.2017.</b></p><p><b>11. It is not in dispute that the order was passed by the Deputy Commissioner on 23.12.2013 and Srinivas Murthy who was the appellant in the said case has expired on 31.12.2013. Merely for the reason that in the order sheet dated 18.02.2013 the Deputy Commissioner has noted the presence of the son of Srinivas Murthy during the proceedings,, it cannot be said that he was aware of the order passed by the Deputy Commissioner on 23.12.2013. The fact remains that Sri. Srinivas Murthy alone was the appellant in the case and his children were not parties to the said proceedings.</b></p><p><b>12. The application for restoration has been filed by the legal representatives of the original grantee after a lapse of 16 years which definitely is an inordinate delay. There is absolutely no reason offered explaining the said delay. On the other hand, the petitioners have given a plausible explanation for the delay of four years caused in filing the writ petition. The learned Single Judge on the ground that the writ petition is filed after a delay of more than four years has refused to consider the merits of the matter and has dismissed the writ petition only on the ground of delay. In our considered opinion, having regard to the explanation offered by the petitioners, delay of four years caused in filing the writ petition ought to have been condoned which compared to the delay of 16 years caused by respondents 3 & 4 in filing the application for restoration of the land in question, is much reasonable. The learned Single Judge was not justified in refusing to consider the writ petition on its merits and dismissing the same on the ground of delay.</b></p><p><b>13. The application for restoration having been filed by respondents 3 & 4 after a delay of more than 16 years from the date from which the PTCL Act came into force, the judgment of the Apex Court in Nekkanti Rama Lakshmi\'s case (supra) and Vivek M. Hinduja\'s case (supra) are squarely applicable to the facts of the present case and the order passed by the Assistant Commissioner and the Deputy Commissioner impugned in the writ petition are liable to be quashed solely on the ground that the restoration application has been filed after an inordinate delay of 16 years. Under the circumstances, we are of the considered opinion that the learned Single Judge was not justified in dismissing the writ petition on the ground of delay. Accordingly, we proceed to pass the following order:</b></p><p><b>14. Writ appeal is allowed. The order dated 12.01.2021 passed by the learned Single Judge in W.P. No. 5604/2018 is set aside and consequently, the orders dated 04.03.2011 and 23.12.2013 passed by the Assistant Commissioner and the Deputy Commissioner, respectively, are also quashed.</b></p>', 'b6eb2adcb386908c43d8940e4d08a0c1.JPG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-03', 1, '', '', '2021-09-04 00:38:03', '2021-09-04 00:42:45'),
(994, '1u3xmmVqOPm3ToU3Bt2QCtfBa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Significant judgment of the Karnataka High Court. There is NO requirement of consent of either lawyers or the parties to refer disputes pending before the Courts for mediation. Detailed guidelines issued.  ', '<p><b>Amalapooh Mary and others vs V. Ravindra</b></p><p><b>Writ Petition 51491 of 2021 decided on 18 August 2021.</b></p><p><b>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/404920/1/WP51491-16-18-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/404920/1/WP51491-16-18-08-2021.pdf</a></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">43. TO SUMMARISE:</b><br></p><p><b>43.1. In view of the decision in Afcon\'s case, any Court exercising powers under Section 89 of CPC would have to invariably rather mandatorily refer all matters to the mediation except those excluded in Paragraph 27 of Afcon\'s case,</b></p><p><b>43.2. The reference to be made to the Bangalore Mediation Centre, Mediation Centres established by KSLSA, the permanent Lok-</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">adalat, as also Lok-adalats\' held from time to time depending on the choice of the parties and the Courts\' opinion as to which would be the appropriate forum.</b></p><p><b>43.3. In terms of Paragraph 36 of the Afcon\'s Judgment, there is no requirement to obtain consent of either lawyers appearing for the parties or of the parties themselves.</b></p><p><b>43.4. In the event of any of the parties not presenting themselves before the Mediation Centre or the Lok-adalat, the Court could exercise powers under Rule 13 of the Karnataka Civil Procedure (Mediation) Rules 2005 and impose such costs as it may deem fit to compel the attendance of the parties before the Mediator so appointed.</b></p><p><b>43.5. While fixing the time for mediation, the Court would have to fix the time period from the date of first appearance of the parties before the Mediator&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">giving a clear 60 days time for mediation. While doing so, the time taken for administrative purposes like transfer of file from the Court to mediation Centre, the time taken to appoint a Mediator, information being communicated as regards the Mediator appointed, etc., has to be excluded.</b></p><p><b>43.6. In the event of the matter being again referred back to the Mediator on the basis of a report submitted by the Mediator or a request made by the parties or of the Court being of the opinion that there still exists a possibility of settlement, the matter would have to be referred back to the same Mediator and time period of 30 days to be extended. This extended period of 30 days also to be calculated from the time when the parties appear before the Mediator by excluding the time taken in administration formalities.</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '2d709152ee85e59d335543117e9777b0.jpeg', '089c32c8349a397aa8a584e2a9cdbb8c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-08-18', 1, '', '', '2021-09-05 16:12:17', '2021-09-05 16:12:17'),
(995, 'egrb0GL7FcQasX8529olhI7JY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Industrial Disputes Act, 1947. Section 17B. Workman is entitled to receive full wages during proceedings by employer \'if the workman had not been employed in any establishment\' and an affidavit in that regard is filed by him. Karnataka High Court', '<p><b>M/s. Delta Infralogistics vs Mohan K.E. and others. </b></p><p><b>I.A. decided on 3 September 2021.</b></p><p><b>Order Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405079/1/WP45852-19-03-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405079/1/WP45852-19-03-09-2021.pdf</a></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. In this regard, learned counsel for the petitioner would place reliance on a decision of the Hon’ble Supreme Court in the case of North East Karnataka Road Transport Corporation /vs./ M.Nagangouda – (2007) 10 SCC 765 to contend that the Hon’ble Supreme Court has held that “gainful </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">employment” would also include self-employment wherefrom income is generated. Income either from employment in an establishment or from self employment merely differentiates the sources from which income is generated, the end use being the same.  It is submitted by the learned counsel that  this decision of the Hon’ble Supreme Court has been applied by a Division Bench of the High Court of Bombay in the case of U.P.State Bridge Corporation Limited./vs./Maharashtra General Kamgar Union – 2008 (2) BomCR 619, 2008(4) MhLj 297 and further reiterated by a learned Single Judge of a High Court of Delhi in the case of TATA Sons Ltd., /vs./Workmen and Ors., reported in (2014) I LLJ 33 Del.</b></p><p><b>4. Per contra, learned counsel for the respondent workmen would place reliance on two decisions of two Division Benches of the High Court of Gujarath in the case of Bhanulal Khimjibhai Solanki </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">vs. Deputy Executive Engineer - (2005) I LLJ 655  Guj  and  Cyanides  and  Chemicals Company </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">vs. Mansingh Mangalram Varma – (2006) II LLJ 191 Guj and submits that the decision cited by the learned counsel for the petitioner, rendered by the Hon’ble Supreme Court is not in the context of Section 17B of the Act.</b></p><p><b>5. Having heard the learned counsels and on perusing the decisions cited, this Court finds that the decision of the Hon’ble Supreme Court was not rendered in the context of Section 17B of the Act. On the other hand, it is very clear from the reading of the said decision that it was rendered in the context of the question of whether the workman is entitled to receive full back wages after reinstatement. On the other hand the Division Benches of the High Court of Gujarat have noticed the provisions of Section 17B </b></p><p><b>6. In paragraph 7.1 & 7.2 of the decision in the case of Bhanulal Khimjibhai Solanki (supra) the Division Bench has specifically considered the words “if the workman is not employed in any establishment”, as found in Section 17B and held that the basic parameter for entitlement of a workman to claim full wages last drawn from his employer, when the proceedings preferred by this employer are pending in the High Court or the Supreme Court are the words, “if the workman is not employed in any establishment”. It is only when the Court is satisfied itself that such workman had been employed in any establishment and had been receiving adequate remuneration during any such period or part thereof that the wages for that period shall not be payable.</b></p><p><b>9. This Court is in respectful agreement with the decision of the Division Benches of the High Court of Gujarat as referred to by the learned counsel for the respondent workman. A plain reading of the provisions makes it clear that workman is entitled for receiving payment of full wages during the proceedings initiated at the hands of the employer before the High Court or the Supreme Court “if the workman had not been employed in any establishment” and an affidavit in that regard is filed by the workman. This Court need not go any further into the proviso of Section 17B, since admittedly it is the contention of the petitioner that the respondent workman was gainfully employed on self employment by owning and driving an auto rickshaw and he was deriving adequate remuneration during the period. In view of the above, this Court is satisfied that the respondent workman is entitled for payment of full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule.</b></p><p><b>10. The contention of the learned counsel of the petitioner that the two decisions of the Division Benches of the High Court of Gujarat were rendered prior to the decisions of the Hon’ble Supreme Court in the case of North East Karnataka Road Transport Corporation and therefore they should not be followed cannot be accepted since this Court is of the opinion that the decisions rendered by the Divisions Benches of the High Court of Gujarat is specifically on Section 17B while the decision of Hon’ble Apex Court in North East Karnataka Road Transport Corporation /vs./ M.Nagangouda is not in the context of Section 17B.</b></p><p><b>12. Consequently, I.A.No.1/2021<span style=\"white-space:pre\">	</span>is allowed. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The petitioner-management is hereby directed to pay arrears  of wages in  terms  of  Section  17B  to<span style=\"white-space:pre\">	</span>th </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respondent No.1- workman and continue paying the workman, until further orders or until the final decision in this matter, as the case may be.</b></p><div><br></div>', 'f15a372acc899e973150a6a18ff4dcb1.jpg', '0a0d602661ec86579a96cd32d2c04973.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-06', 1, '', '', '2021-09-06 21:36:19', '2021-09-06 21:39:28'),
(996, 'yyuYOHYRoEUkXkHth6DQ0G2LJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mediation. Failure to appear before Mediation Centre or Lok-adalat on reference of matter to mediation. Court can impose costs to compel attendance of parties before Mediator. Karnataka High Court. ', '<p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Amalapooh Mary and others vs V. Ravindra</b></p><p><b>Writ Petition 51491 of 2021 decided on 18 August 2021.</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/404920/1/WP51491-16-18-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/404920/1/WP51491-16-18-08-2021.pdf</a></b></p><p><b>43. TO SUMMARISE:</b></p><p><b>43.1. In view of the decision in Afcon\'s case, any Court exercising powers under Section 89 of CPC would have to invariably rather mandatorily refer all matters to the mediation except those excluded in Paragraph 27 of Afcon\'s case,</b></p><p><b>43.2. The reference to be made to the Bangalore Mediation Centre, Mediation Centres established by KSLSA, the permanent Lok-adalat, as also Lok-adalats\' held from time to time depending on the choice of the parties and the Courts\' opinion as to which would be the appropriate forum.</b></p><p><b>43.3. In terms of Paragraph 36 of the Afcon\'s Judgment, there is no requirement to obtain consent of either lawyers appearing for the parties or of the parties themselves.</b></p><p><b>43.4. In the event of any of the parties not presenting themselves before the Mediation Centre or the Lok-adalat, the Court could exercise powers under Rule 13 of the Karnataka Civil Procedure (Mediation) Rules 2005 and impose such costs as it may deem fit to compel the attendance of the parties before the Mediator so appointed.</b></p><p><b>43.5. While fixing the time for mediation, the Court would have to fix the time period from the date of first appearance of the parties before the Mediator giving a clear 60 days time for mediation. While doing so, the time taken for administrative purposes like transfer of file from the Court to mediation Centre, the time taken to appoint a Mediator, information being communicated as regards the Mediator appointed, etc., has to be excluded.</b></p><p><b>43.6. In the event of the matter being again referred back to the Mediator on the basis of a report submitted by the Mediator or a request made by the parties or of the Court being of the opinion that there still exists a possibility of settlement, the matter would have to be referred back to the same Mediator and time period of 30 days to be extended. This extended period of 30 days also to be calculated from the time when the parties appear before the Mediator by excluding the time taken in administration formalities.</b></p>', 'bd5a3182557818cf80677b359f71bca6.jpeg', '8a6aa6860ab0cb8dbc10bd4056af4422.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-06', 1, '', '', '2021-09-07 00:28:23', '2021-09-07 00:28:23'),
(997, 'R1F95ouABh3yXRIZkImK8pZq9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Interpretation of statutes. In the absence of express statutory authorization, delegated legislation in the form of rules or regulations, cannot operate retrospectively. Supreme Court reiterates. ', '<p><b>Assistant Excise Commissioner, Kottayam and others vs Esthappan Cherian and another.&nbsp;</b></p><p><b>Civil Appeal 5815 of 2009 decided on 6 September 2021.</b></p><p><b>Justice L. Nageswara Rao and Justice S. Ravindra Bhat.&nbsp;</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2008/27982/27982_2008_32_1502_29823_Judgement_06-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2008/27982/27982_2008_32_1502_29823_Judgement_06-Sep-2021.pdf</a></b><br></p><p><b>14. There is profusion of judicial authority on the proposition\r\nthat a rule or law cannot be construed as retrospective unless it\r\nexpresses a clear or manifest intention, to the contrary. In\r\nCommissioner of Income Tax v Vatika Township&nbsp;(2015) 1 SCC 1 this court,\r\nspeaking through a Constitution Bench, observed as follows:</b></p><p><b><i>“31. Of the various rules guiding how a legislation has to be\r\ninterpreted, one established rule is that unless a contrary\r\nintention appears, a legislation is presumed not to be intended to\r\nhave a retrospective operation. The idea behind the rule is that a\r\ncurrent law should govern current activities. Law passed today\r\ncannot apply to the events of the past. If we do something today,\r\nwe do it keeping in view the law of today and in force and not&nbsp;&nbsp;tomorrow’s backward adjustment of it. Our belief in the nature of\r\nthe law is founded on the bed rock that every human being is\r\nentitled to arrange his affairs by relying on the existing law and\r\nshould not find that his plans have been retrospectively upset.\r\nThis principle of law is known as lex prospicit non respicit : law\r\nlooks forward not backward. As was observed in Phillips vs.\r\nEyre[3], a retrospective legislation is contrary to the general\r\nprinciple that legislation by which the conduct of mankind is to be\r\nregulated when introduced for the first time to deal with future\r\nacts ought not to change the character of past transactions\r\ncarried on upon the faith of the then existing law. <br></i></b></p><p><b><i>32. The obvious basis of the principle against retrospectivity is\r\nthe principle of \'fairness’, which must be the basis of every legal\r\nrule as was observed in the decision reported in L’Office Cherifien\r\ndes Phosphates v. Yamashita-Shinnihon Steamship Co.Ltd[4].\r\nThus, legislations which modified accrued rights or which impose\r\nobligations or impose new duties or attach a new disability have\r\nto be treated as prospective unless the legislative intent is clearly\r\nto give the enactment a retrospective effect; unless the legislation\r\nis for purpose of supplying an obvious omission in a former\r\nlegislation or to explain a former legislation. We need not note the\r\ncornucopia of case law available on the subject because aforesaid\r\nlegal position clearly emerges from the various decisions and this\r\nlegal position was conceded by the counsel for the parties. In any\r\ncase, we shall refer to few judgments containing this dicta, a little\r\nlater.”</i><br></b></p><p><b>15. Another equally important principle applies: in the absence\r\nof express statutory authorization, delegated legislation in the\r\nform of rules or regulations, cannot operate retrospectively. In\r\nUnion of India v M.C. Ponnose 1970 SCR (1) 678 this rule was spelt out in the\r\nfollowing terms:&nbsp;<br></b></p><p><b><i>“The courts will not, therefore, ascribe retrospectivity to new laws\r\naffecting rights unless by express words or necessary implication\r\nit appears that such was the intention of the legislature. The\r\nParliament can delegate its legislative power within the&nbsp;recognised limits. Where any rule or regulation is made by any\r\nperson or authority to whom such powers have been delegated by\r\nthe legislature it may or may not be possible to make the same so\r\nas to give retrospective operation. It will depend on the language\r\nemployed in the statutory provision which may in express terms\r\nor by necessary implication empower the authority concerned to\r\nmake a rule or regulation with retrospective effect. But where no\r\nsuch language is to be found it has been held by the courts that\r\nthe person or authority exercising subordinate legislative\r\nfunctions cannot make a rule, regulation or bye-law which can\r\noperate with retrospective effect.”\r\n</i><br></b></p><p><b><br></b></p><p><br></p>', '0c943191be6f855902205467e84ee52b.JPG', 'f05b1d5ec906699a6107857e48920a15.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-06', 1, '', '', '2021-09-07 01:03:17', '2021-09-07 01:03:17'),
(998, 'KeyP02eMdpYXO4ZFccxVK4Rbw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Royalty. As against tax, royalty normally has direct relationship with the benefit or privilege conferred upon the grantee. It\'s a compensation paid for rights and privileges. Supreme Court explains. ', '<p><b>M/s. INDSIL Hydro Power and Manganese Limited vs State of Kerala and others. </b></p><p><b>Civil Appeal 9845-9846 of 2016 decided on 6 September 2021</b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2014/21711/21711_2014_32_1501_29823_Judgement_06-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2014/21711/21711_2014_32_1501_29823_Judgement_06-Sep-2021.pdf</a></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"https://main.sci.gov.in/supremecourt/2014/21711/21711_2014_32_1501_29823_Judgement_06-Sep-2021.pdf\" target=\"_blank\"> </a></b></p><p><b>Justice Uday Umesh Lalit and Justice Vineet Saran </b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">47. The distinction between tax and fee was brought out by the Constitution\r\nBench of this Court in Hingir-Rampur Coal Co. Ltd. and Others vs. State of\r\nOrissa and Others (1961) 2 SCR 537</b><br></p><p><b>48. In State of West Bengal vs. Kesoram Industries Limited and Ors. (2004) 10 SCC 201,\r\nanother Constitution Bench of this Court explained certain observations in\r\nIndia Cement Limited vs. State of Tamil Nadu (1990) 1 SCC 12.<br></b></p><p><b><i>“ ‘Royalty’ is the share of the produce reserved to owner\r\nfor permitting another to exploit and use property. The\r\nword ‘royalty’ means compensation paid to landlord by\r\noccupier of land for species of occupation allowed by\r\ncontract between them. ‘Royalty’ is a share of the\r\nproduct or profit (as of a mine, forest etc.) reserved by\r\nthe owner for permitting another to use his property.” <br></i></b></p><p><b><i>“The word ‘royalties’ signifies, in mining leases, that\r\npart of the reddendum which is variable, and depends\r\nupon the quantity of minerals gotten or the agreed\r\npayment to a patentee on every article made according to\r\nthe patent. Rights or privileges for which remuneration is\r\npayable in the form of a royalty.” <br></i></b></p><p><b><i>“A royalty, in the sense in which the word is used in\r\nconnection with mining leases, is a payment to the lessor proportionate to the amount of the demised mineral\r\nworked within a specified period.”\r\n<br></i></b></p><p><b><i>“Royalty.—Payment to a patentee by agreement on every\r\narticle made according to his patent; or to an author by a\r\npublisher on every copy of his book sold; or to the owner\r\nof minerals for the right of working the same on every\r\nton or other weight raised.” <br></i></b></p><p><b><i>“A pro rata payment to a grantor or lessor, on the working\r\nof the property leased, or otherwise on the profits of the\r\ngrant or lease. The word is especially used in reference\r\nto mines, patents and copyrights.” <br></i></b></p><p><b><i>“Royalties are payments which the Government may\r\ndemand for the appropriation of minerals, timber or other\r\nproperty belonging to the Government. Two important\r\nfeatures of royalty have to be noticed, they are, that the\r\npayment made for the privilege of removing the articles\r\nis in proportion to the quantity removed, and the basis of\r\nthe payment is an agreement.”<br></i></b></p><p><b><i>“Royalty.—A share of the product or profit from real\r\nproperty, reserved by the grantor of a mineral lease, in\r\nexchange for the lessee’s right to mine or drill on the\r\nland.</i><br></b></p><p><b>54. Thus, the expression ‘Royalty’ has consistently been construed to be\r\ncompensation paid for rights and privileges enjoyed by the grantee and\r\nnormally has its genesis in the agreement entered into between the\r\ngrantor and the grantee. As against tax which is imposed under a statutory\r\npower without reference to any special benefit to be conferred on the payer\r\nof the tax, the royalty would be in terms of the agreement between the parties\r\nand normally has direct relationship with the benefit or privilege conferred\r\nupon the grantee. <br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '58582cbd1b81233e31a442bc1d1df044.jpg', '8e8122f224ff6ddff11ab757ecd2d209.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-06', 1, '', '', '2021-09-07 01:34:25', '2021-09-07 01:35:28');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(999, 'xQeTOpFXxG18Ha505Fv1FR1E4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka SC-ST (Prohibition of Transfer of Certain Lands) Act, 1978. Inordinate delay in initiation of proceedings for resumption. Proceedings are liable to be quashed. Supreme Court.  ', '<div class=\"Section1\" style=\"text-align: justify; margin-top: 2em; text-rendering: optimizelegibility; text-size-adjust: 100%; line-height: 24px; -webkit-font-smoothing: antialiased;\"><div class=\"Section1\" style=\"margin-top: 2em; text-rendering: optimizelegibility; text-size-adjust: 100%; line-height: 24px; -webkit-font-smoothing: antialiased;\"><p class=\"MsoNormal\" style=\"line-height:normal\"><span style=\"font-family: &quot;Segoe UI&quot;, sans-serif; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b>Vivek M. Hinduja v. M. Ashwatha, (2020) 14 SCC\r\n228 <o:p></o:p></b></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"line-height:normal\"><span style=\"font-family: &quot;Segoe UI&quot;, sans-serif; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b>3. The original grantees in these cases, who were\r\nmembers of the Scheduled Caste community, were granted the lands by a common\r\ngrant sometime in the year 1946-1947. By that grant each of the grantees was\r\ngiven two acres of land. The successors of the grantees or the grantees\r\nthemselves transferred the lands to certain individuals sometime in the year\r\n1967. These transferees further transferred the lands after 8/10 years to\r\ndifferent persons. The present appellants are purchasers from the land\r\ntransferees.<o:p></o:p></b></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"line-height:normal\"><span style=\"font-family: &quot;Segoe UI&quot;, sans-serif; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b>6. Relying on some observations in Manchegowda v.\r\nState of Karnataka [Manchegowda v. State of Karnataka, (1984) 3 SCC 301] and\r\nSunkara Rajayalakshmi v. State of Karnataka [Sunkara Rajayalakshmi v. State of\r\nKarnataka, (2009) 12 SCC 193 : (2009) 4 SCC (Civ) 664] , Shri Sunil Fernandes,\r\nlearned counsel on the respondents\' side submitted that the outer limit for\r\ninitiating action should be 30 years.<o:p></o:p></b></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"line-height:normal\"><span style=\"font-family: &quot;Segoe UI&quot;, sans-serif; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b>7. We, however, find that the observations in\r\nthose cases are not apposite and are made with reference to the period of\r\nprescription in respect of government properties under the Limitation Act,\r\n1963.<o:p></o:p></b></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"line-height:normal\"><span style=\"font-family: &quot;Segoe UI&quot;, sans-serif; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b>8. It was also submitted on behalf of the\r\nrespondents that Section 4 [ “4. Prohibition of transfer of granted lands.—(1)\r\nNotwithstanding anything in any law, agreement, contract or instrument, any\r\ntransfer of granted land made either before or after the commencement of this\r\nAct, in contravention of the terms of the grant of such land or the law\r\nproviding for such grant, or sub-section (2) shall be null and void and no\r\nright, title or interest in such land shall be conveyed or be deemed ever to\r\nhave conveyed by such transfer.(2) No person shall, after the commencement of\r\nthis Act, transfer or acquire by transfer any granted land without the previous\r\npermission of the Government.(3) The provisions of sub-sections (1) and (2)\r\nshall apply also to the sale of any land in execution of a decree or order of a\r\ncivil court or of any award or order of any other authority.”] of the Karnataka\r\nAct proprio vigore annuls a transfer made in contravention of itself.\r\nTherefore, it makes no difference if the proceedings are initiated even after\r\n20 to 25 years.<o:p></o:p></b></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"line-height:normal\"><span style=\"font-family: &quot;Segoe UI&quot;, sans-serif; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b>9. We do not find it possible to accede to this\r\nsubmission. This Court in Port of Kandla v. Hargovind Jasraj [Port of Kandla v.\r\nHargovind Jasraj, (2013) 3 SCC 182 : (2013) 2 SCC (Civ) 1] reiterated the\r\nnecessity of an order of a competent court or tribunal before which the\r\nimpugned order can be declared as null and void. The Court relied on the\r\noft-quoted passage in Smith v. East Elloe RDC [Smith v. East Elloe RDC, 1956 AC\r\n736 : (1956) 2 WLR 888 : (1956) 1 All ER 855 (HL)] which reads as under:\r\n(Hargovind case [Port of Kandla v. Hargovind Jasraj, (2013) 3 SCC 182 : (2013)\r\n2 SCC (Civ) 1] , SCC p. 193, para 27)<o:p></o:p></b></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"line-height:normal\"><span style=\"font-family: &quot;Segoe UI&quot;, sans-serif; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b>“27. … ‘… An order, even if not made in good\r\nfaith, is still an act capable of legal consequences. It bears no brand of\r\ninvalidity on its forehead. Unless the necessary proceedings are taken at law\r\nto establish the cause of invalidity and to get it quashed or otherwise upset,\r\nit will remain as effective for its ostensible purpose as the most impeccable\r\nof orders.’ (Smith case [Smith v. East Elloe RDC, 1956 AC 736 : (1956) 2 WLR\r\n888 : (1956) 1 All ER 855 (HL)] , AC pp. 769-70)<o:p></o:p></b></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"line-height:normal\"><span style=\"font-family: &quot;Segoe UI&quot;, sans-serif; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b>This must be equally true even where the brand of\r\ninvalidity is plainly visible: for there also the order can effectively be\r\nresisted in law only by obtaining the decision of the court. The necessity of\r\nrecourse to the court has been pointed out (sic) repeatedly in the House of\r\nLords and Privy Council without distinction between patent and latent defects (Eds.\r\nWade and Forsyth in Administrative Law, 7th Edn., 1994).”<o:p></o:p></b></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"line-height:normal\"><span style=\"font-family: &quot;Segoe UI&quot;, sans-serif; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b>10. In Pune Municipal Corpn. v. State of\r\nMaharashtra [Pune Municipal Corpn. v. State of Maharashtra, (2007) 5 SCC 211]\r\nthis Court reproduced the following observations with regard to the declaration\r\nof orders beyond the period of limitation as invalid: (SCC p. 226, para 39)<o:p></o:p></b></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"line-height:normal\"><span style=\"font-family: &quot;Segoe UI&quot;, sans-serif; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b>“39. Setting aside the decree passed by all the\r\ncourts and referring to several cases, this Court held that if the party\r\naggrieved by invalidity of the order intends to approach the court for\r\ndeclaration that the order against him was inoperative, he must come before the\r\ncourt within the period prescribed by limitation. ‘If the statutory time of\r\nlimitation expires, the court cannot give the declaration sought for’.”<o:p></o:p></b></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"line-height:normal\"><span style=\"font-family: &quot;Segoe UI&quot;, sans-serif; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b>11. We are in respectful agreement with the\r\naforesaid observations. It is, however, necessary to add that where limitation\r\nis not prescribed, the party ought to approach the competent court or authority\r\nwithin reasonable time, beyond which no relief can be granted. As decided\r\nearlier, this principle would apply even to suo motu actions.<o:p></o:p></b></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"line-height:normal\"><span style=\"font-family: &quot;Segoe UI&quot;, sans-serif; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b>12. We find from the impugned judgments [Vivek M.\r\nHinduja v. M. Ashwatha, 2006 SCC OnLine Kar 882] , [George Thomas v. K.P.\r\nKrishnappa, 2011 SCC OnLine Kar 4496] that the High Court has not given due\r\nregard to the period of time within which the action was taken in the present\r\ncases. The competent authorities in all these cases had declined relief to the\r\nrespondents and had refused to annul the transfers. In the circumstances, the\r\nimpugned judgment(s) and order(s) passed by the High Court are set aside.<o:p></o:p></b></span></p>\r\n\r\n<p class=\"MsoNormal\" style=\"line-height:normal\"><span style=\"font-family: &quot;Segoe UI&quot;, sans-serif; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b>13. Accordingly, the appeals are allowed.</b></span><o:p></o:p></p></div></div>', '9383f59e96b9738c81ce0cb5faadeae2.jpg', 'dc5a91edc1ba6a1cba6776b1cc7b126b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-06', 1, '', '', '2021-09-07 02:03:35', '2021-09-07 02:03:35'),
(1000, 'xjjUxde3IegJ8RNS23pIRyuOm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Writ Petition by statutory authority like Gram Panchayat in furtherance of its objective and protection of public property is maintainable. Karnataka High Court. ', '<p><b>V. Harish vs The President K.R.Sagara Gram Panchayat </b></p><p><b>Writ Petition 12222 of 2018 decided on 30 August 2021. </b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405220/1/WP12222-18-30-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405220/1/WP12222-18-30-08-2021.pdf</a></b></p><p><b>Writ Petition No.9233/2021 is filed by the\r\nKrishnarajasagar Gram Panchayat challenging the very order\r\nwhich directed registration of khata in favour of the petitioner in\r\nWrit Petition No.12222/2018 - the companion writ petition.  <br></b></p><p><b>12. At the outset, I deem it appropriate to consider the\r\nthreshold submission of the learned counsel for the\r\npetitioner/claimant with regard to maintainability of the writ\r\npetition. The learned counsel to buttress his submission with\r\nregard to maintainability of the writ petition by the Gram\r\nPanchayat places reliance upon two judgments of two different\r\nHigh Courts one, reported in 2020 SCC OnLine Rajasthan </b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>1084 in the case of Gram Panchayat Khandewla, Through\r\nits Sarpanch Namely, Pran Veer Singh Vs. State of\r\nRajasthan and others and the other, reported in 1990 SCC\r\nOnLine Kerala 296 in the case of District Executive Officer\r\nand others Vs. State and Others.</b></span></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13. The Rajasthan High Court in the case of Gram\r\nPanchayat Khandewla </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2020 SCC OnLine Rajasthan 1084</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> has held as follows:</span></b></p><p><b><i> “7. The post of Gram Panchayat is one of the\r\nposts provided under the Rajasthan Panchayat Act\r\nand Rules framed therein. The appointment is\r\nmade at their district level by the advertisement\r\nissued by the Chief Executive Officer, Zila Parishad\r\nand selection is on the basis of recommendation\r\nmade by the District Level Committee. Thus the\r\nappointment of the respondent cannot be said to\r\nhave been made by the Panchayat Samiti or Gram\r\nPanchayat. However, his services are provided to\r\neach Gram Panchayat and at that stage, the salary\r\nis paid from the budget of the concerned Gram\r\nPanchayat. On account of the same, he does not become an employee of the Sarpanch of Gram\r\nPanchayat. The District Establishment Committee\r\nand the Chief Executive Officer, Zila Parishad\r\nwould have therefore right to hear grievance raised\r\nby him against the action of Sarpanch or Gram\r\nPanchayat for removing him.</i></b></p><p><b><i>8. This court finds that it is by way of\r\nrepresentation/appeal to higher authority that the\r\ncase was re-examined and a special enquiry\r\ncommittee was formed consisting of three officers to\r\nfind out whether the concerned Gram Panchayat\r\nSahayak was removed legally. Reaching to the\r\nconclusion that the order passed of removal was\r\nillegal. The concerned respondent no. 8 has been\r\ndirected to be reinstated. The manner and method\r\nby which the Gram Panchayat has challenged the\r\norder, amounts to challenging the authorities of the\r\nsuperior officer. An appellate forum or higher forum\r\nwhere representation is received will have power\r\nand authority to re-examine the orders passed by\r\nsubordinate authorities and it can decide, remand\r\nor quash the order passed by the subordinate\r\nauthorities. Such power is an inherent power with\r\nthe appellate authority/higher authority. The\r\nSubordinate Authority cannot be allowed to question the said authority by filing of the writ\r\npetition before this court. This court agrees that the\r\nsuch method adopted by the petitioner amounts to\r\nmisuse of legal remedies and and if the same is\r\nallowed to be entertained, it would amount to\r\ncreating the administrative chaos.” </i></b> <br></p><p><b>14. On the other hand, a deeper delving into the matter is\r\nobviated by the judgment of the Apex Court on the issue as in\r\nthe case of Village Panchayat, Calangute v. Director of Panchayat \r\n(2012) 7 SCC 550, wherein the Apex Court considered the very issue\r\nwith regard to maintainability of a writ petition by a Gram\r\nPanchayat. </b></p><p><b>The question that arose before the Apex Court was whether a\r\nwrit petition by a Gram Panchayat calling in question the order\r\npassed by the Executive Officer was maintainable or otherwise.\r\nThe contentions were that the writ petition was not maintainable\r\nand the contra contention was that it was. The Apex Court after\r\nconsidering the amendment to the Constitution empowering\r\nGram Panchayats, has declared that a writ petition in certain\r\ncircumstances by the Gram Panchayat challenging the order of the Executive Officer would be maintainable. Therefore, the\r\nthreshold bar that the petitioner/claimant seeks to contend is\r\nunacceptable and I hold the writ petition to be maintainable.  </b><br></p><p><b>17. It is trite law that an order passed by a quasi judicial\r\nauthority determining the rights of the parties should contain\r\nreasons, as reasons would reflect application of mind. In an era\r\nwhere even administrative orders cannot be bereft of reasons, it\r\ncan hardly be justifiable, if orders of quasi judicial authorities\r\nare cryptic, bald or laconic. Therefore, the contention of the\r\nlearned counsel Sri.B.J.Somayaji deserves acceptance with\r\nregard to maintainability of the writ petition and obliteration of\r\nthe order of the Executive Officer, Taluk Panchayat. For the\r\naforesaid reasons, the following: </b><br></p><p><br></p>', 'f531cbe5354bf26c7bf544bcad978936.JPG', '7d5610e4caf309fb2088f73a337494be.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-07', 1, '', '', '2021-09-07 18:23:16', '2021-09-07 22:32:28'),
(1001, 'sReqHYibTnl0u02bZ0MT4YlF6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'Cauvery Calling\'. Karnataka High Court dismisses the public interest writ petition.  ', '<div><b>A.V.Amarnathan vs State of Karnataka and others.&nbsp;</b></div><div><b>Writ Petition 43414 of 2019 decided on 7 September 2021.</b></div><div><b>Justice Satish Chandra Sharma, Acting Chief Justice and Justice Sachin Shankar Magadum</b></div><div><b>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405365/1/WP43414-19-07-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405365/1/WP43414-19-07-09-2021.pdf</a></b></div><div><p class=\"MsoNormal\" align=\"center\" style=\"margin-top:.1pt;margin-right:67.45pt;\r\nmargin-bottom:0cm;margin-left:89.45pt;margin-bottom:.0001pt;text-align:center;\r\nline-height:101%\"><b><br></b></p></div><div><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the considered opinion of this Court, the petition deserves to be dismissed. The past conduct of the petitioner reveals that costs has been imposed upon the petitioner for filing frivolous PILs and the present case is also a fit case for imposition of costs, however, we are refraining ourselves from imposing cost as at a later stage during the pendency of the petition, on account of the conduct of the petitioner, the petition has been converted into a suo motu PIL.</span><br></b></div><div><b><br></b></div><div><b>Resultantly, the writ petition is dismissed.</b></div>', '41857d91dc7a3da67f122a41f9ad0ebb.JPG', 'bb27b328351cea14e0d6cf5dd0ae4e26.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-07', 1, '', '', '2021-09-07 22:59:07', '2021-09-07 22:59:07'),
(1002, '9ymWBpXJ8N9ZhKVpRiTO23eK2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Fraudulent practice to gain public employment cannot be permitted by a Court of law. Workmen securing job in fraudulent manner must be prevented from enjoying the fruits of the illgotten advantage. Supreme Court ', '<p><b>Employers in Relation to the Management of Bhalgora Area vs Workmen.</b></p><p><b>Civil Appeal ..of 2021 (SLP (C) 29873 of 2016 decided on 7 September 2021.</b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2016/26399/26399_2016_3_1501_29832_Judgement_07-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2016/26399/26399_2016_3_1501_29832_Judgement_07-Sep-2021.pdf</a></b></p><p><b>15. In Union of India Vs. M.Bhaskaran (1995) Supp. 4 SCC 100, on similar\r\nfacts of fraudulent appointment, Justice S.B.\r\nMajumdar writing for a Division Bench rightly\r\nexpressed the following, </b></p><p><b><i>“6. …the concerned railway employees,\r\nrespondents herein have admittedly\r\nsnatched employment in Railway service,\r\nmay be of a casual nature, by relying\r\nupon forged or bogus casual labourer\r\ncards. The unauthenticity of the service\r\ncards on the basis of which they got\r\nemployment is clearly established on\r\nrecord of the departmental enquiry held\r\nagainst the concerned employees.\r\nConsequently, it has to be held that\r\nrespondents were guilty of\r\nmisrepresentation and fraud perpetrated\r\non the appellant employer while getting\r\nemployed in Railway service and had\r\nSnatched such employment which would not\r\nhave been made available to them if they\r\nwere not armed with such bogus and forged\r\nlabourer cards. It was clearly a case of\r\nfraud on the appellant-employer. If once\r\nsuch fraud is detected, the appointment\r\norders themselves which were found to be\r\ntainted and vitiated by fraud and acts of  cheating on the part of employees, were\r\nliable to be recalled and were at least\r\nvoidable at the option of the employer\r\nconcerned. This is precisely what has\r\nhappened in the present case. Once the\r\nfraud of the respondents in getting such\r\nemployment was detected the respondents\r\nwere proceeded against in departmental\r\nenquiries and were called upon to have\r\ntheir say and thereafter have been\r\nremoved from service. Such orders of\r\nremoval would amount to recalling of\r\nfraudulently obtained erroneous\r\nappointment orders which were avoided by\r\nthe employer- appellant after following\r\nthe due procedure of law and complying\r\nwith the principles of natural justice.”</i></b></p><p><b>16. We also endorse the opinion of Justice D.Y.\r\nChandrachud, writing for a three judges’ Bench in\r\nChairman and Managing Director, Food Corporation\r\nof India & Ors. Vs. Jagdish Balram Bahira & Ors. (2017) 8 SCC 670,\r\nwhere the Court has noted the responsibility of\r\nCourts to guard against fraudulent employment,\r\nespecially when such appointment is obtained by\r\nperpetuating fraud upon the authorities, <br></b></p><p><b><i>“4. …Public employment is a significant\r\nsource of social mobility. Access to\r\neducation opens the doors to secure\r\nfutures. As a matter of principle, in the exercise of its constitutional\r\njurisdiction, the court must weigh\r\nagainst an interpretation which will\r\nprotect unjust claims over the just,\r\nfraud over legality and expediency over\r\nprinciple. As the nation evolves, the\r\nrole of the court must be as an\r\ninstitution which abides by\r\nconstitutional principle, enforces the\r\nrule of law and reaffirms the belief that\r\nclaims based upon fraud, expediency and\r\nsubterfuge will not be recognised. Once\r\nthese parameters are established with a\r\nclear judicial formulation individual\r\ncases should pose no problem. Usurpation\r\nof constitutional benefits by persons who\r\nare not entitled to them must be answered\r\nby the court in the only way permissible\r\nfor an institution which has to uphold\r\nthe rule of law. Unless the courts were\r\nto do so, it would leave open a path of\r\nincentives for claims based on fraud to\r\nsurvive legal gambits and the creativity\r\nof the disingenuous.”</i></b></p><p><b> 17. Fraudulent practice to gain public employment\r\ncannot be countenanced to be permitted by a Court\r\nof law. The workmen here, having hoodwinked the\r\nGovernment Undertaking in a fraudulent manner, must\r\nbe prevented from enjoying the fruits of their illgotten advantage. The sanctity of public\r\nemployment, as a measure of social welfare and a significant source of social mobility, must be\r\nprotected against such fraudulent process which\r\nmanipulates and corrupts the selection process.\r\nEmployment schemes floated by the State for\r\ntargeted groups, can absorb a finite number of\r\nworkmen. To abuse the legitimate process therefore\r\nwould mean deprivation of employment benefits to\r\nrightful beneficiaries. The Courts as sentinel of\r\njustice must strive to ensure that such employment\r\nprogrammes are not manipulated by deceitful\r\nmiddlemen, thereby setting up a parallel mechanism\r\nof Faustian Bargain. Often, desperate job\r\naspirants’ resort to such measures to compete for\r\nlimited vacancies, but this Court cannot condone\r\nfalse projections so as to circumvent the\r\nstatutorily prescribed procedure for appointments.\r\nSuch illegal practices must be interdicted by the\r\nCourts.  <br></b></p><p><b><br></b></p><p><b><br></b></p><p>\r\n<br></p>', '212e3c1717bee9f33619e2de1a8af6dc.JPG', 'bf40f411bd2d9531cef0cc397eff40e8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-07', 1, '', '', '2021-09-08 00:45:51', '2021-09-08 00:47:17'),
(1003, '91vFfv1PRWVHQB2rU2jObebhb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'Writing judgments is an art. It replicates the individuality of the judge\'. Supreme Court stresses the need for clarity in judgments.  ', '<p><b>Shakuntala Shukla vs State of Uttar Pradesh and another</b></p><p><b>Criminal Appeal 878 of 2021 and connected matters decided on 7 September 2021.</b></p><p><b>Justice </b><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Dr. Dhananjaya Y. Chandrachud and Justice </span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">M.R. Shah</span></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/928/928_2019_13_1501_29807_Judgement_07-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/928/928_2019_13_1501_29807_Judgement_07-Sep-2021.pdf</a></b></p><p><b>9.2 First of all, let us consider what is “judgment”. “Judgment” means\r\na judicial opinion which tells the story of the case; what the case is\r\nabout; how the court is resolving the case and why. “Judgment” is\r\ndefined as any decision given by a court on a question or questions or\r\nissue between the parties to a proceeding properly before court. It is\r\nalso defined as the decision or the sentence of a court in a legal\r\nproceeding along with the reasoning of a judge which leads him to his\r\ndecision. The term “judgment” is loosely used as judicial opinion or\r\ndecision. Roslyn Atkinson, J., Supreme Court of Queensland, in her\r\nspeech once stated that there are four purposes for any judgment that is\r\nwritten:\r\n</b></p><p><b>i) to spell out judges own thoughts;\r\n</b></p><p><b>ii) to explain your decision to the parties;</b></p><p><b>iii) to communicate the reasons for the decision to the public;\r\nand\r\n</b></p><p><b>iv) to provide reasons for an appeal court to consider</b></p><p><b>9.3 It is not adequate that a decision is accurate, it must also be\r\nreasonable, logical and easily comprehensible. The judicial opinion is to\r\nbe written in such a way that it elucidates in a convincing manner and\r\nproves the fact that the verdict is righteous and judicious. What the court\r\nsays, and how it says it, is equally important as what the court decides.\r\n</b></p><p><b>Every judgment contains four basic elements and they are (i)\r\nstatement of material (relevant) facts, (ii) legal issues or questions, (iii)\r\ndeliberation to reach at decision and (iv) the ratio or conclusive decision.\r\nA judgment should be coherent, systematic and logically organised. It\r\nshould enable the reader to trace the fact to a logical conclusion on the\r\nbasis of legal principles. It is pertinent to examine the important\r\nelements in a judgment in order to fully understand the art of reading a\r\njudgment. In the Path of Law, Holmes J. has stressed the insentient\r\nfactors that persuade a judge. A judgment has to formulate findings of\r\nfact, it has to decide what the relevant principles of law are, and it has to\r\napply those legal principles to the facts. The important elements of a\r\njudgment are:</b></p><p><b>i) Caption </b></p><p><b>ii) Case number and citation\r\n</b></p><p><b>iii) Facts </b></p><p><b>iv) Issues </b></p><p><b>v) Summary of arguments by both the parties\r\n</b></p><p><b>vi) Application of law\r\n</b></p><p><b>vii) Final conclusive verdict</b></p><p><b>9.4 The judgment replicates the individuality of the judge and therefore\r\nit is indispensable that it should be written with care and caution. The\r\nreasoning in the judgment should be intelligible and logical. Clarity and\r\nprecision should be the goal. All conclusions should be supported by\r\nreasons duly recorded. The findings and directions should be precise\r\nand specific. Writing judgments is an art, though it involves skilful\r\napplication of law and logic. We are conscious of the fact that the judges\r\nmay be overburdened with the pending cases and the arrears, but at the\r\nsame time, quality can never be sacrificed for quantity. Unless judgment\r\nis not in a precise manner, it would not have a sweeping impact. There\r\nare some judgments that eventually get overruled because of lack of\r\nclarity. Therefore, whenever a judgment is written, it should have clarity\r\non facts; on submissions made on behalf of the rival parties; discussion\r\non law points and thereafter reasoning and thereafter the ultimate\r\nconclusion and the findings and thereafter the operative portion of the\r\norder. There must be a clarity on the final relief granted. A party to the litigation must know what actually he has got by way of final relief. The\r\naforesaid aspects are to be borne in mind while writing the judgment,\r\nwhich would reduce the burden of the appellate court too. We have\r\ncome across many judgments which lack clarity on facts, reasoning and\r\nthe findings and many a times it is very difficult to appreciate what the\r\nlearned judge wants to convey through the judgment and because of\r\nthat, matters are required to be remanded for fresh consideration.\r\nTherefore, it is desirable that the judgment should have a clarity, both on\r\nfacts and law and on submissions, findings, reasonings and the ultimate\r\nrelief granted.\r\n</b><br></p>', 'a65a85a108b01ea411e574340058b1e9.JPG', '870f4426ab205b531ce44abee938ba1d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-07', 1, '', '', '2021-09-08 01:03:26', '2021-09-08 01:05:02'),
(1004, 'VCfQAG9VvVbuxDvZeJPmaQDYc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Medical negligence. In every case where the treatment is not successful it cannot be automatically assumed that the medical professional was negligent. Supreme Court reiterates. ', '<p><b>Dr. Harish Kumar Khurana vs Joginder Singh &amp; Ors.</b></p><p><b>Civil Appeal 7380 of 2009 decided on 7 September 2021.&nbsp;</b></p><p><b>Justice Hemant Gupta and Justice A.S. Bopanna.</b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2009/29524/29524_2009_1_1501_29808_Judgement_07-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2009/29524/29524_2009_1_1501_29808_Judgement_07-Sep-2021.pdf</a></b></p><p><b>13. In&nbsp; S.K. Jhunjhunwala vs. Dhanwanti&nbsp; &nbsp;Kaur and Another (2019) 2 SCC 282 referred by the learned counsel for the&nbsp; &nbsp;respondent,&nbsp; &nbsp;the&nbsp; &nbsp;negligence&nbsp; &nbsp;alleged&nbsp; &nbsp;was&nbsp; &nbsp;of&nbsp; &nbsp;suffering ailment as a result of improper performance of surgery. It was held that there has to be direct nexus with these two factors to&nbsp; &nbsp;sue&nbsp; &nbsp;a&nbsp; &nbsp;doctor&nbsp; &nbsp;for&nbsp; &nbsp;negligence.&nbsp; &nbsp;In,&nbsp; Nizam’s&nbsp; &nbsp;Institute&nbsp; &nbsp;of Medical Sciences vs. Prasanth S. Dhananka and Others (2009) 6 SCC 1 relied upon by the learned counsel for the respondent,&nbsp; &nbsp;broad&nbsp; &nbsp;principles&nbsp; &nbsp;under&nbsp; &nbsp;which&nbsp; &nbsp;the&nbsp; &nbsp;medical negligence as a tort have to be evaluated is taken note, as has been laid down in the case of&nbsp; Jacob&nbsp; Mathew&nbsp; (supra). The ultimate conclusion reached in the case of Nizam’s Institute (supra)&nbsp; &nbsp;relating&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;lack&nbsp; &nbsp;of&nbsp; &nbsp;care&nbsp; &nbsp;and&nbsp; &nbsp;caution&nbsp; &nbsp;and&nbsp; &nbsp;the negligence&nbsp; on&nbsp; &nbsp;the&nbsp; part&nbsp; of&nbsp; &nbsp;the&nbsp; attending&nbsp; &nbsp;doctors&nbsp; was&nbsp; &nbsp;with reference to the medical report which was available on record which indicated the existence of tumour located at left upper chest&nbsp; &nbsp;and&nbsp; &nbsp;in&nbsp; &nbsp;that&nbsp; &nbsp;circumstance&nbsp; &nbsp;the&nbsp; &nbsp;presence&nbsp; &nbsp;of&nbsp; &nbsp;neuro surgeon&nbsp; &nbsp;was&nbsp; &nbsp;essential&nbsp; &nbsp;and&nbsp; &nbsp;the&nbsp; &nbsp;said&nbsp; &nbsp;procedure&nbsp; &nbsp;not&nbsp; &nbsp;being adopted, a case of negligence or indifference on the part of the attending doctors had been proved.</b></p><p><b>14. Having noted the decisions relied upon by the learned counsel for the parties, it is clear that in every case where the treatment&nbsp; is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional&nbsp; &nbsp;was&nbsp; &nbsp;negligent. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur&nbsp; could&nbsp; &nbsp;be&nbsp; &nbsp;made&nbsp; &nbsp;applicable&nbsp; &nbsp;and&nbsp; &nbsp;not&nbsp; &nbsp;based&nbsp; &nbsp;on perception.&nbsp;</b></p>', 'f66169fdc8bfa6c5cad07deaaa4d71ba.JPG', 'e890c365c802d094ecdd21c82e080890.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-07', 1, '', '', '2021-09-08 01:48:33', '2021-09-08 01:48:33'),
(1005, '72DluqAuSb2MQ3Pxf57QeImTl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Where the plaintiff\'s title is in dispute or under a cloud, a suit for mere injunction without claiming declaration of title not maintainable. Supreme Court reitrates. ', '<p><b>T.V.Ramakrishna Reddy vs M. Mallappa and another </b></p><p><b>Civil Appeal 5577 of 2021 decided on 7 September 2021. </b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/18091/18091_2020_35_1502_29853_Judgement_07-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/18091/18091_2020_35_1502_29853_Judgement_07-Sep-2021.pdf</a></b></p><p><b>8. The   short   question   that   falls   for   consideration before us is: Whether   the  learned  single   judge   of   the   High Court   was  right in holding   that   the   suit   simpliciter   for permanent injunction without claiming declaration of title, as filed by the plaintiff, was not maintainable?</b></p><p><b>9. The issue is no more  res integra.   The position has been crystalised by this Court in the case of Anathula Sudhakar v. P. Buchi Reddy (dead) by L.Rs. and others (2008) 4 SCC 594 in paragraph 21, which read thus:</b></p><p><b><i>“21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:</i></b></p><p><b><i>(a)   Where   a   cloud   is   raised   over   the plaintiff\'s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff\'s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession   with   a   consequential   injunction. Where there is merely an interference with the plaintiff\'s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.</i></b></p><p><b><i>(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the   finding   on   possession.   But   in   cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.</i></b></p><p><i><b>(c)  But   a   finding   on   title   cannot   be recorded   in   a   suit   for   injunction,   unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu   Thevar v. Alagammal, (2005) 6 SCC 202] ). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves   complicated   questions   of  fact  and </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">law relating to title, the court will relegate </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">mere injunction </b><b>(d) Where there are necessary pleadings</b></i></p><p><b><i>(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if   the   matter   involved   is   simple   and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession   suing   for   injunction,   should   not   be driven   to   the   costlier   and   more   cumbersome   remedy   of   a   suit   for   declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”</i></b></p><p><b style=\"background-color: rgb(255, 255, 0);\">10. It   could   thus   be   seen   that   this   Court   in unequivocal terms has held that where the plaintiff’s title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession.  It has been clearly held that if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.  </b></p><p><b>11. No doubt, this Court has held that where there are   necessary   pleadings   regarding   title   and   appropriate issue relating to title on which parties lead evidence, if the matter   involved   is   simple   and   straightforward,   the  court may decide upon the issue regarding title, even in a suit for injunction.  However, it has been held that such cases are the exception to the normal rule that question of title will not be decided in suits for injunction. </b></p><p><b>20. It will also be relevant to refer to the following observations of this Court in the case of Jharkhand State Housing Board v. Didar Singh and another (2019) 17 SCC 692: </b></p><p><i><b>“11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine   dispute   with   regard   to   title   and when he raises a cloud over the title of the plaintiff, then necessarily in those circum</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>stances, plaintiff cannot maintain a suit for\r\nbare injunction.”</b></span></i></p><div><br></div><p><br></p>', '7c51eacb12cf42c7827970ad4a59273b.jpeg', '1b5e30b4357063c0c876ce363ffbb071.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-07', 1, '', '', '2021-09-08 02:19:14', '2021-09-08 02:19:49'),
(1006, 'Hd24clq9nM3TyA6mzJp3V8RpI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Pension to freedom fighters. Government should not seek documents which are impossible to secure. Approach of State and its officials has to be very gentle & humane while considering the claim of such persons. Karnataka High Court. ', '<p><b>Gundurao Desai vs The State of Karnataka and others.&nbsp;</b></p><p><b>Writ Petition 7498 of 2021 decided on 7 September 2021.&nbsp;</b></p><p><b>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405586/1/WP7498-21-07-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405586/1/WP7498-21-07-09-2021.pdf</a></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Petitioner claiming to be a freedom fighter is knocking&nbsp; at the doors of writ Court</b><br></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons:</b><br></p><p><b>(a) During the Freedom Struggle, several nationals sacrificed their lives, limbs &amp; liberty and obviously their families too got affected; all this happened unseen &amp; unsung; others who survived the struggle and lived after the Dawn of Freedom, needed to be protected, presumably they being incapable of paddling their life boats; therefore both the Central Government and the State Governments have promulgated Freedom Fighters Pension Schemes; the fulfillment of requirement of such Schemes should not be insisted upon mindlessly and&nbsp; impossibly&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ritualistic adherence to the conditions of State Policy regardless of some of them being impossible of performance, is not the way a Welfare State is constitutionally expected to function; the Apex Court in E.P.Royappa vs State of Tamil Nadu, AIR 1974 SC 555 has observed that all actions of the State be legislative or executive, should be animated by reason &amp; justness; it is more so when the cause of Freedom Fighters who are in the late evening of their lives, is involved; the impugned Endorsement does not reflect this approach to the matter, more particularly when the&nbsp; Freedom Fighters are a vanishing class, majority of them having already&nbsp; closed&nbsp; their eyes, statistically speaking.</b></p><p><b>(b) There is no much dispute as to petitioner being a nonagenarian; he having attained age&nbsp; of 94 years is in the&nbsp; &nbsp;late evening of the life; the approach of State and its officials has to be very gentle &amp; humane while considering the claim of such persons; the Apex Court time &amp; again&nbsp; has&nbsp; observed&nbsp; that, just claims of the citizens cannot be rejected on flimsy grounds; if the petitioner has crossed the age of 94 years, it sounds unjust &amp; arbitrary, to say the least, to expect the co- detenues elder to him to be alive and much less available for swearing to an affidavit expected under the conditions&nbsp; of&nbsp; State Policy</b></p><p><b>(c) In all civilized jurisdictions where conditions prescribed by the statutes are or become impossible of performance, they are treated either&nbsp; as&nbsp; having&nbsp; been&nbsp; complied or their compliance being dispensed with, subject to all just exceptions into which argued case of&nbsp; the&nbsp; petitioner&nbsp; does&nbsp; not&nbsp; fit</b></p><p><b>(d) The approach of the statutory authorities to the compassionate policies of the State such as Freedom Fighters Pension Schemes should not hijack justice in the ritualistic adherence to the black letter of law and in a gross disregard&nbsp; to its spirit; otherwise, (to borrow the words of Justice Benjamin N. Cardozo) they may be likened to surgeons who would rather have their patients dead in accordance with the principles of surgery than live contrary to; that is not a happy thing to happen in an arguably sane world; it is&nbsp; not the&nbsp; case of respondents that the petitioner is guilty of fraud, fabrication or the like</b></p><p><b>In the above circumstances, this writ petition succeeds</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '5ff05f8d3bc388402b5233369b3bb418.jpg', 'a2f1407e110e17bbdccb5cf45f221905.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-08', 1, '', '', '2021-09-09 01:14:01', '2021-09-09 01:14:01');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1007, 'aRP34CHXgCX6mQorQVYKVa6uK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitrary freezing of bank account by the authorities, unless there is a strong suspicion against the account holder, adversely affects the right to life under Article 21 of the Constitution of India. Karnataka High Court.  ', '<p><b>Narayan Yadav vs State of Karnataka and another&nbsp;</b></p><p><b>Writ Petition 226989 of 2020 decided on 30 August 2021</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405582/1/WP226989-20-30-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405582/1/WP226989-20-30-08-2021.pdf</a></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2. In this writ petition the petitioner has sought&nbsp; &nbsp;to quash the notice dated 22.06.2020 at&nbsp; Annexure-A issued by the Police Inspector, CEN Police Station, Yadgiri, to the Manager of Axis Bank, Yadgiri for de-freezing petitioner\'s account No.278010100061117 and linked account numbers.</b><br></p><p><b>4. The gist of the complaint is that, complainant received a mail on 27.05.2020 stating that she has won&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">?48,47,80,346/- lottery and to transfer the said amount, she has to login to certain user ID. Accordingly,&nbsp; she entered the password and the user name provided and filled-up the information requested. In response, she was asked to deposit certain amount to the account numbers provided. As such, between 06.05.2020 to 10.06.2020, a total sum of ?3,73,899/- was deposited to those accounts. Thereafter, no amount as assured was transferred to her account and thereby she was cheated by some unknown persons.</b></p><p><b>5. The notice at Annexure-A to defreeze the bank account pertaining to the petitioner appears to be on the ground that transaction of ?99,999/- made by the complainant to the Axis Bank account bearing No.278010100061117, belong to the petitioner.</b></p><p><b>14. In&nbsp;</b><span style=\"font-weight: bolder;\">Mr.Prakash Padukone and others vs. State of Karnataka&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">[W.P.No.13516-13518/2018 (GM-POLICE) - 4.04.2018&nbsp;</span><b>it is observed as under -</b></p><p><i><b>\"This court is of the firm opinion that unless and until there is a strong suspicion against the petitioners, the police would not be justified in freezing the account belonging to the petitioners. For, such freezing of account adversely affects the right&nbsp; to&nbsp; life&nbsp; under&nbsp; Article 21 of Constitution of India. But, in order to balance the conflicting interest of the petitioners, with the interest of the Investigating Agency, and the interest of the complainant, in the interest of justice, respondent Nos.1 and 2 are directed to de- freeze the account belonging to the petitioners, provided, the petitioner No.1 submits a bond of&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">?20,00,000/-&nbsp; &nbsp;(Rupees&nbsp; Twenty&nbsp; Lakh only)&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">before the learned Sessions Judge, before whom the present case is pending.\"</b></i></p><p><b>15. It is also contended by the learned counsel for petitioner that Section 102 of Code of Criminal Procedure, which is mandatory, has not been followed while freezing the bank account. He has relied on the decision in&nbsp;</b><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Uma Maheshwari v. The State, Rep. by The Inspector of Police, Central Crime Branch, Egmore, Chennai&nbsp;&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">O.P.Nos.15467</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2013</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">connected matters dated 20.12.2013&nbsp;</span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">disposed of on 20.12.2013 by&nbsp; the&nbsp; High Court Judicature at Madras. Para 40 to 45 are extracted hereunder -</b></p><p><i><b>\"40. In Vinoshkumar Ramachandran Valluvar vs State of Maharashtra 2011 (1) MWN (Cr.) 497 (FB)(Bom.)], a Full&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Bench of the Bombay High Court held that the requirement of reporting of freezing of&nbsp; bank account to the Magistrate&nbsp; prescribed&nbsp; under&nbsp; Section 102(3) Cr.P.C is mandatory in nature.</b></i></p><p><b><i>41. In pursuing investigation&nbsp; under Section 102 Cr.P.C., the Code empowered the&nbsp; police officers to deprive a person of his properties. In this context, the phrase, \"shall\" employed in Section 102(3) Cr.P.C, is held to be mandatory in nature. Violation of it goes to the root of&nbsp; the matter.</i></b></p><p><b><i>42. In K.Mahendran vs State rep by the Sub Inspector of Police, XII Team, Central Crime Branch, Chennai 2007 (1) MLJ (Crl) 794, cited by the learned Senior Counsel for the petitioner, a learned Single Judge of this Court referring to section 105(E)(2) Cr.P.C. held that the freezing of the Bank accounts will have no effect unless it is confirmed by the Magistrate within 30 days of freezing of the Bank account.</i></b></p><p><i><b>43. The said Section 105(E) occurs in Chapter VII-A of the Cr.P.C. The said Chapter consisting of Section 105(A) to 105(L) was inserted in the Code of Criminal Procedure on 20.7.1994 by way of Central Act 14/1993. It is intended by way&nbsp; of reciprocal arrangement for assistance in certain matters and procedures for&nbsp; attachment&nbsp; or forfeiture of the property. With regard to certain extra-territorial activity, in other words it is&nbsp; intended for collecting evidence outside India and matters connected thereto in India elaborate&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">procedure has been made in Section 105(A) to 105(L)&nbsp; &nbsp;Cr.P.C.&nbsp; &nbsp;In&nbsp; &nbsp;that&nbsp; &nbsp;connection&nbsp; &nbsp; in&nbsp; &nbsp; Section 105(E)(2) Cr.P.C. confirmation within 30 days&nbsp; of&nbsp; seizure has been prescribed. Section 105(E) Cr.P.C. has nothing to do with the seizure provided in Section 102 Cr.P.C. Our case is covered under Section 102 Cr.P.C. Let us focus our attention only on Section 102 Cr.P.C.</b></i></p><p><b><i>44. The Investigation Officer has suspected that the moneys swindled were secreted by the accused persons in their Bank accounts. Thus, he took steps to freeze the Bank accounts.</i></b></p><p><b><i>45. We have elaborately seen that such freezing of the Bank accounts shall be reported to the jurisdiction Magistrate. When it is to&nbsp; be reported has been stated in Section 102(3) Cr.P.C. It is stated therein that it shall be reported \"forthwith\" to the jurisdiction Magistrate. The reporting of the freezing of the Bank accounts is mandatory. Failure to do so will vitiate the freezing of the bank account. In this back drop of the&nbsp; matter, the word \"forthwith\" shall mean \'immediately\', \'without delay\', \'soon\'.\"</i></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">17. It is not in dispute that all the four bank accounts of the petitioner have been freezed by virtue of the notice issued by the Investigating officer.&nbsp; Certainly such freezing of account would adversely affect his right to life under Article 21 of the Constitution of India.&nbsp;</b></p><p><b>Hence, to meet the ends of justice, the respondent No.1 is directed to intimate the concerned banks to defreeze the accounts, provided the petitioner offering a bank guarantee for a sum of ?3,73,899/-. Petitioner shall make himself available for the purpose of investigation whenever required.</b><br><br></p><p><br></p>', 'f9d520b1514b8c950f9d7f000db04a8c.jpg', 'ecbd1b07c8a018932ba56cc0b1bb8593.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-08', 1, '', '', '2021-09-09 02:13:48', '2021-09-09 02:13:48'),
(1008, 'R7rXZUJeit7Tyc2mz3sKvzSUw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Where the plaintiff’s title is NOT in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. Supreme Court', '<p><b>T.V.Ramakrishna Reddy vs M. Mallappa and another&nbsp;</b></p><p><b>Civil Appeal 5577 of 2021 decided on 7 September 2021.&nbsp;</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/18091/18091_2020_35_1502_29853_Judgement_07-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/18091/18091_2020_35_1502_29853_Judgement_07-Sep-2021.pdf</a></b><br></p><p><b>8. The&nbsp; &nbsp;short&nbsp; &nbsp;question&nbsp; &nbsp;that&nbsp; &nbsp;falls&nbsp; &nbsp;for&nbsp; &nbsp;consideration before us is: Whether&nbsp; &nbsp;the&nbsp; learned&nbsp; single&nbsp; &nbsp;judge&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;High Court&nbsp; &nbsp;was&nbsp; right in holding&nbsp; &nbsp;that&nbsp; &nbsp;the&nbsp; &nbsp;suit&nbsp; &nbsp;simpliciter&nbsp; &nbsp;for permanent injunction without claiming declaration of title, as filed by the plaintiff, was not maintainable?</b></p><p><b>9. The issue is no more&nbsp; res integra.&nbsp; &nbsp;The position has been crystalised by this Court in the case of Anathula Sudhakar v. P. Buchi Reddy (dead) by L.Rs. and others (2008) 4 SCC 594 in paragraph 21, which read thus:</b></p><p><b>“21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:</b></p><p><b>(a)&nbsp; &nbsp;Where&nbsp; &nbsp;a&nbsp; &nbsp;cloud&nbsp; &nbsp;is&nbsp; &nbsp;raised&nbsp; &nbsp;over&nbsp; &nbsp;the plaintiff\'s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff\'s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession&nbsp; &nbsp;with&nbsp; &nbsp;a&nbsp; &nbsp;consequential&nbsp; &nbsp;injunction. Where there is merely an interference with the plaintiff\'s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.</b></p><p><b>(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the&nbsp; &nbsp;finding&nbsp; &nbsp;on&nbsp; &nbsp;possession.&nbsp; &nbsp;But&nbsp; &nbsp;in&nbsp; &nbsp;cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.</b></p><p><b>(c)&nbsp; But&nbsp; &nbsp;a&nbsp; &nbsp;finding&nbsp; &nbsp;on&nbsp; &nbsp;title&nbsp; &nbsp;cannot&nbsp; &nbsp;be recorded&nbsp; &nbsp;in&nbsp; &nbsp;a&nbsp; &nbsp;suit&nbsp; &nbsp;for&nbsp; &nbsp;injunction,&nbsp; &nbsp;unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu&nbsp; &nbsp;Thevar v. Alagammal, (2005) 6 SCC 202] ). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves&nbsp; &nbsp;complicated&nbsp; &nbsp;questions&nbsp; &nbsp;of&nbsp; fact&nbsp; and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction (d) Where there are necessary pleadings</b></p><p><b>(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if&nbsp; &nbsp;the&nbsp; &nbsp;matter&nbsp; &nbsp;involved&nbsp; &nbsp;is&nbsp; &nbsp;simple&nbsp; &nbsp;and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession&nbsp; &nbsp;suing&nbsp; &nbsp;for&nbsp; &nbsp;injunction,&nbsp; &nbsp;should&nbsp; &nbsp;not&nbsp; &nbsp;be driven&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;costlier&nbsp; &nbsp;and&nbsp; &nbsp;more&nbsp; &nbsp;cumbersome&nbsp; &nbsp;remedy&nbsp; &nbsp;of&nbsp; &nbsp;a&nbsp; &nbsp;suit&nbsp; &nbsp;for&nbsp; &nbsp;declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”</b></p><p><b style=\"background-color: rgb(255, 255, 0);\">10. It&nbsp; &nbsp;could&nbsp; &nbsp;thus&nbsp; &nbsp;be&nbsp; &nbsp;seen&nbsp; &nbsp;that&nbsp; &nbsp;this&nbsp; &nbsp;Court&nbsp; &nbsp;in unequivocal terms has held that where the plaintiff’s title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession.&nbsp; It has been clearly held that if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.&nbsp;&nbsp;</b></p><p><b>11. No doubt, this Court has held that where there are&nbsp; &nbsp;necessary&nbsp; &nbsp;pleadings&nbsp; &nbsp;regarding&nbsp; &nbsp;title&nbsp; &nbsp;and&nbsp; &nbsp;appropriate issue relating to title on which parties lead evidence, if the matter&nbsp; &nbsp;involved&nbsp; &nbsp;is&nbsp; &nbsp;simple&nbsp; &nbsp;and&nbsp; &nbsp;straightforward,&nbsp; &nbsp;the&nbsp; court may decide upon the issue regarding title, even in a suit for injunction.&nbsp; However, it has been held that such cases are the exception to the normal rule that question of title will not be decided in suits for injunction.&nbsp;</b></p><p><b>20. It will also be relevant to refer to the following observations of this Court in the case of Jharkhand State Housing Board v. Didar Singh and another (2019) 17 SCC 692:&nbsp;</b></p><p><b>“11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine&nbsp; &nbsp;dispute&nbsp; &nbsp;with&nbsp; &nbsp;regard&nbsp; &nbsp;to&nbsp; &nbsp;title&nbsp; &nbsp;and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.”</b></p><p><br></p>', '22af2b993e8e27a52fbc3a0c910920f5.JPG', '6d5b400c45f63d14bcbf4adfcfc21254.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-08', 1, '', '', '2021-09-09 02:51:49', '2021-09-09 02:51:49'),
(1009, 'ISKhlT4FV5k5sV5Ad4pm5JovL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'Where conditions prescribed by the statute become impossible of performance, they are treated either as having been complied or their compliance being dispensed with\'  Karnataka High Court.', '<p><b>Gundurao Desai vs The State of Karnataka and others. </b></p><p><b>Writ Petition 7498 of 2021 decided on 7 September 2021. </b></p><p><b>Judgment Link:<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405586/1/WP7498-21-07-09-2021.pdf\" target=\"_blank\"> http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405586/1/WP7498-21-07-09-2021.pdf</a></b></p><p><b>Petitioner claiming to be a freedom fighter is knocking  at the doors of writ Court</b></p><p><b>4. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons:</b></p><p><b>(a) During the Freedom Struggle, several nationals sacrificed their lives, limbs & liberty and obviously their families too got affected; all this happened unseen & unsung; others who survived the struggle and lived after the Dawn of Freedom, needed to be protected, presumably they being incapable of paddling their life boats; therefore both the Central Government and the State Governments have promulgated Freedom Fighters Pension Schemes; the fulfillment of requirement of such Schemes should not be insisted upon mindlessly and  impossibly ritualistic adherence to the conditions of State Policy regardless of some of them being impossible of performance, is not the way a Welfare State is constitutionally expected to function; the Apex Court in E.P.Royappa vs State of Tamil Nadu, AIR 1974 SC 555 has observed that all actions of the State be legislative or executive, should be animated by reason & justness; it is more so when the cause of Freedom Fighters who are in the late evening of their lives, is involved; the impugned Endorsement does not reflect this approach to the matter, more particularly when the  Freedom Fighters are a vanishing class, majority of them having already  closed  their eyes, statistically speaking.</b></p><p><b>(b) There is no much dispute as to petitioner being a nonagenarian; he having attained age  of 94 years is in the   late evening of the life; the approach of State and its officials has to be very gentle & humane while considering the claim of such persons; the Apex Court time & again  has  observed  that, just claims of the citizens cannot be rejected on flimsy grounds; if the petitioner has crossed the age of 94 years, it sounds unjust & arbitrary, to say the least, to expect the co- detenues elder to him to be alive and much less available for swearing to an affidavit expected under the conditions  of  State Policy</b></p><p><b style=\"background-color: rgb(255, 255, 0);\">(c) In all civilized jurisdictions where conditions prescribed by the statutes are or become impossible of performance, they are treated either as  having  been  complied or their compliance being dispensed with, subject to all just exceptions into which argued case of the petitioner does not  fit</b></p><p><b>(d) The approach of the statutory authorities to the compassionate policies of the State such as Freedom Fighters Pension Schemes should not hijack justice in the ritualistic adherence to the black letter of law and in a gross disregard  to its spirit; otherwise, (to borrow the words of Justice Benjamin N. Cardozo) they may be likened to surgeons who would rather have their patients dead in accordance with the principles of surgery than live contrary to; that is not a happy thing to happen in an arguably sane world; it is  not the  case of respondents that the petitioner is guilty of fraud, fabrication or the like</b></p><p><b>In the above circumstances, this writ petition succeeds</b></p>', 'a9de85942203a3cb18bf4a82d1e94b8a.jpg', 'b2332201e2543cd2c52ead30531b97c2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-08', 1, '', '', '2021-09-09 02:59:36', '2021-09-09 03:01:04'),
(1010, 'o4w0Qn2WbIKsH8AEhe9euoSay', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka SC-ST (PTCL) Act, 1978.  Application for resumption and restoration of granted land filed 8 years after the sale can NOT be rejected on the ground of delay and laches. Supreme Court. ', '<p><b>Satyan vs Deputy Commissioner and others. </b></p><p><b>Civil Appeal 2976-2983 of 2019 decided on 30 April 2019. </b></p><p><b>Justice Sanjay Kishan Kaul and Justice Indira Banerjee </b></p><p><b>33. The aforesaid aspect is really not in doubt, in view of the\r\nsubsequent judicial pronouncements, more specifically in Dharma\r\nNaika v. Rama Naika & Anr </b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(2008) 14 SCC 517.</b></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> The context of the observations made\r\nin Manchegowda v. State of Karnataka </b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>1984) 3 SCC 301</b></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> has been clearly enunciated.\r\nIt is noted that the agreements for sale were executed before the\r\ncommencement of the Act. The sale deed was executed afterwards.\r\nIn that context it was observed that it could be safely concluded that\r\nprovisions of Section 4(1) declared any transfer of land made either before or after the commencement of the said Act to be null and void\r\nif it contravened the conditions specified therein. Section 4(2) was\r\nheld to make it abundantly clear that if the sale deed was executed and\r\nregistered after the commencement of the said Act, and was without\r\nprior permission of the State Government, such transfer would be\r\ninvalid and null and void. The scheme of the said Act was also\r\ndiscussed in detail with the objective with which it was enacted.\r\nBefore parting with the judgment, this Court observed in para 27 that\r\nManchegowda & Ors. v. State of Karnataka & Ors. has to be read\r\nin the context of the limited scope, as enunciated in para 7 of that\r\njudgment. Nothing more is really left to be said after this judgment,\r\nthough there are certain other judicial pronouncements referred to\r\naforesaid, cited by learned counsel for the State. Suffice to say that a\r\ndelay of eight (8) years by itself cannot come in the way of the\r\ncompetent authority taking the action, as limitation principles would\r\nnot apply, as observed in Amrendra Pratap Singh v. Tej Bahadur\r\nPrajapati & Ors. </b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(2004) 10 SCC 65</b></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> The cases referred to by learned senior counsel for the appellant involved huge gaps of around twenty (20) to thirty (30)\r\nyears, which is not so in the present case.</b></p><p><b style=\"background-color: rgb(255, 255, 0);\">34. The period of eight (8) years cannot be said to be such, as to\r\namount to such delay and laches as would make the action void,\r\nconsidering that it is in respect of a beneficial legislation for the\r\nScheduled Castes and Scheduled Tribes community. </b></p><p><b>36. We are of the view that the courts below committed no error,\r\nand the competent authority has acted within its jurisdiction to nullify\r\nthe transactions which are contrary to the statutory provisions of\r\nSection 4(2) of the said Act, and the manner of execution itself raises\r\nmany doubts.</b><br></p>', '94d5ba813f9daceee7bfd573b3861152.JPG', '033624059efff25cb742539f4a3a85a0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-09', 1, '', '', '2021-09-09 19:17:57', '2021-09-09 19:37:50'),
(1011, 'XDkLLggCxnCwO5G8TuzD21Ikr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka SC-ST (PTCL) Act, 1978 is NOT applicable in cases of mere agreements of sale without delivery of possession. Karnataka High Court.  ', '<p><b>M. Suresh Kumar and others vs Deputy Commissioner and others.&nbsp;</b></p><p><b>Writ Appeal 16 of 2020 decided on 15 April 2021.&nbsp;</b></p><p><b>Judgment Link:&nbsp;</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; font-weight: bolder;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/381283/1/WA16-20-15-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/381283/1/WA16-20-15-04-2021.pdf</a></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/381283/1/WA16-20-15-04-2021.pdf\" target=\"_blank\">&nbsp;</a></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice Satish Chandra Sharma and Justice S. Vishwajith Shetty</b><br></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. It is not in dispute that the transaction in question in this case is the agreement of sale dated 23.03.2011. A perusal of the said agreement, which is available at Annexure-A to the writ petition, would go to show that under the said agreement, the third respondent has received an advance sale consideration of Rs. 10,00,000/- and has agreed to execute the sale deed in respect of the land in question to the appellants herein after obtaining necessary permission from the State Government and it is further agreed that the balance sale consideration would be paid within three months from the date of obtaining such permission for sale from the government. Admittedly, the possession of the land has not been handed over to the appellants under the said sale agreement. Since the possession of the land in question has not been handed over under the agreement of sale, the transaction in question would not amount to transfer within the meaning of PTCL Act.</b><br></p><p><b>7. This court in the case of K.N. Ramegowda (Dead by LRs.) v. Assistant Commis-sioner, Sakaleshpura&nbsp; (1994) 5 KLJ 468 has held that the agreement for sale if coupled with delivery of possession would amount to sale and similar view has been taken by this court even in the case of R.H. Ramakrishnaiah v. Deputy Commissioner, Shimoga 2000 (2) J SN 21.</b></p><p><b>8. Under the circumstances, we are of the considered opinion that the agreement of sale dated 23.03.2011 executed by the third respondent in favour of the appellants here-in would not amount to transfer within the meaning of PTCL Act and therefore, the ap-plication for restoration filed by the third respondent itself was not maintainable before the Deputy Commissioner.</b></p><p><b>9. Under the circumstances, the learned Single Judge was not justified in setting aside the orders passed by the Assistant Commissioner and the Deputy Commission-er and remanding the matter to the Assistant Commissioner to decide the restoration application filed under Sections 4 and 5 of the PTCL Act, afresh.</b></p><p><b>10. The impugned order passed by the learned Single Judge is, therefore, unsustain-able and accordingly, the same is set aside. Writ Appeal is allowed.</b></p><p><br></p>', 'b4a85125c3a8de83dcaf389473307d33.jpg', 'ff8ed3a2bdaf9e657ce2aaa8bfec9d81.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-10', 1, '', '', '2021-09-10 18:04:56', '2021-09-10 18:04:56'),
(1012, 'AHXr5G4vEv1PtGL2SSa7XyqoG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka SC-ST (PTCL) Act, 1978.  Application for resumption and restoration of granted land filed 10 years after the sale can be rejected on the ground of delay and laches. Karnataka High Court. ', '<p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Mangamma and others vs State of Karnataka and others.&nbsp;</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Writ Appeal 16 of 2021 decided on 5 April 2021.&nbsp;</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice Satish Chandra Sharma and Justice S. Vishwajith Shetty</b><br></p><p><b>Judgment Link:&nbsp;&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380126/1/WA16-21-05-04-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/380126/1/WA16-21-05-04-2021.pdf</a></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">S. Vishwajith Shetty, J.:— The unsuccessful petitioners in Writ Petition No. 50446/2012. (SC/ST) have filed this intracourt appeal challenging the order dated 24th January 2020 passed by the learned Single Judge of this court in the said writ petition.</b></p><p><b>2. For the sake of convenience, parties are referred to as per their ranking in the writ petition.</b></p><p><b>3. The brief facts of the case are:</b></p><p><b>The land bearing Sy. No. 46 measuring 2 acres 24 guntas situated at Kaggalipura village, Uttarahali Hobli, Bangalore South Taluk (hereinafter referred to as “the land in question”) was granted to one Mallaiah, son of Kenchappa on 14.12.1993 and saguvali chit was issued to him on 1.07.1995. The said Mallaiah sold the land in question in favour of respondent No. 4 under a registered sale deed dated 11.09.1995 in violation of Section 4(2) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Ad, 1978 (hereinafter referred to as “the PTCL Act”), which came into force with effect from 01.01.1979.</b></p><p><b>4. The said Mallaiah in the year 2005 had filed an application under Section 5 of the PTCL Act seeking resumption and restoration of possession of the land in question. The Assistant Commissioner by order dated 25.10.2006 had rejected the said application and the appeal filed as against the said order before the Deputy Commissioner&nbsp;was also dismissed vide order dated 02.08.2012. Being aggrieved by the same, the legal representatives of deceased Mallaiah, who had expired during the pendency of the appeal before the Deputy Commissioner, had filed Writ Petition No. 50446/2012 which has been dismissed by the learned Single Judge vide the order impugned in this appeal.</b></p><p><b>5. We have heard the learned counsel for the appellants and also perused the materials available on record.</b></p><p><b>6. The original grantee Mallaiah had sold the land in question on 11.09.1995. After a lapse of ten years, he had filed an application under Section 5 of the PTCL Act for restoration. The learned Single Judge in view of the law laid down by the Hon\'ble Apex Court in the case of Ningappa v. Deputy Commissioner&nbsp;</b><span style=\"font-family: &quot;Open Sans&quot;, sans-serif; font-size: 15.2px; text-align: justify;\"><b>Civil Appeal N.3131/2007 DD 14.07.2011</b></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;and in the case of Nekkanti Rama Lakshmi v. State of Karnataka&nbsp;</b><span style=\"font-family: &quot;Open Sans&quot;, sans-serif; font-size: 15.2px; text-align: justify;\"><b>(2018) 1 Kar.L.R. 5 (SC)</b></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;has dismissed the writ petition on the ground that the application for restoration was filed beyond a reasonable time. In fact, in the case of Ningappa (supra), the Hon\'ble Apex Court has opined that even the delay of nine years in filing the application for restoration under Section 5 of the PTCL Act cannot be entertained. The learned Single Judge applying the law laid down by the Hon\'ble Apex Court in the cases of Ningappa and Nekkanti Rama Lakshmi (supra), to the facts of the present case, has rightly held that the application for restoration has been filed beyond a reasonable time and has rightly dismissed the writ petition. We, therefore, find no good reason to interfere with the said order passed by the learned Single Judge, which is impugned in this appeal. Accordingly, we proceed to pass the following;</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ORDER</b></p><p><b>7. The Writ Appeal is dismissed.</b></p><div><br></div>', '0e7935f4d0c650cce28dc757d261da28.jpg', 'fc592594f4d799468ed0e69330d8847d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-10', 1, '', '', '2021-09-10 18:43:02', '2021-09-10 18:43:02'),
(1013, 'bOOheJb4Qh01kF3IXR8NZGqaX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. Acquittal of an employee in departmental proceedings. Criminal proceedings on the same cause of action can not be continued. Karnataka High Court.  ', '<p><b>Dr. S. Chandrashekar Prasad vs State at the Instance of Drugs Inspector&nbsp;</b></p><p><b>Criminal Petition 5091 of 2020 decided on 22 October 2020</b></p><p><b>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347777/1/CRLP5091-20-22-10-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347777/1/CRLP5091-20-22-10-2020.pdf</a></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. Sri.Vivek Reddy, learned Senior&nbsp; Counsel appearing for Sri.Subba Reddy, learned&nbsp; counsel for the petitioner submits that for the very same offences, there were disciplinary proceedings&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">initiated against the petitioner, which resulted in his acquittal therein and during the course of departmental enquiry, it has been categorically held that there is no infraction alleged to have been committed by the petitioner.&nbsp; Sri.Vivek Reddy, learned Senior counsel relying on the decision of Hon’ble Apex Court in the case of LOKESH KUMAR JAIN VS. STATE OF&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">RAJASTHAN reported in (2013) 11 SCC 130 and in the case of ASHOO SURENDRANATH TEWARI VS. DEPUTY SUPERINTENDENT OF POLICE&nbsp; IN&nbsp; CRIMINAL&nbsp; APPEAL NO.575/2020&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">submits that when a departmental enquiry has resulted in acquittal, then the question of criminal proceedings continuing against the petitioner would not arise.</b></p><p><b>4. Having considered the decisions referred to above and the order passed by the Disciplinary&nbsp; Authority, I am of the considered opinion that the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">said decisions equally apply to the present facts and circumstances of the present case. The Disciplinary Authority having come to the conclusion that there is no infraction committed&nbsp; by the petitioner, the criminal proceedings also would not continue.</b></p><p><b>5. In view thereof, the proceedings in C.C.No.745/2008 pending on the file of II Additional Civil Judge and JMFC., Kanakapura Taluk, Ramnagara for the offences punishable under Sections 18(C), 18(A) and under Section 27(b)(ii) and 28 of Drugs and Cosmetic Act, 1940 are quashed.</b></p>', '70c91f8d79f6c649655b6d70ae169e4a.jpeg', '45c4a6857c44f4b386c4732d357eccca.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-10', 1, '', '', '2021-09-11 02:08:26', '2021-09-11 02:08:26'),
(1014, 'Lq1wZ1Mm7zcjgcwj0KBwljt5B', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'Planting trees on a barren Government land is not a crime. Afforestation is an essential tool to deal with global warming\'. Karnataka High Court ', '<p><b>A.V.Amarnathan vs State of Karnataka&nbsp;</b></p><p><b>Writ Petition 43414 of 2019 decided on 7 September 2021.</b></p><p><b>Justice Satish Chandra Sharma Acting Chief Justice and Justice Sachin Shankar Magadum.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">61. Forests cover about 30% of the world\'s land area but their disappearance is alarming. We are destroying the forest cover. Trees play an important role in our life. They absorb the carbon-dioxide that we exhale. They also absorb&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">heat-trapping greenhouse gases. Forests are home to million of species and are essential for life and civilization. Forests provide us food, shelter, medicine and other life essential things.</b></p><p><b>62. Afforestation means conversion of bare or uncultivated land into forest. It means process of sowing seeds or planting trees in an area that does not have trees to create a forest. It is certainly an essential tool to deal with global warming. Afforestation has got various advantages. It is a natural supply of forest products. It prevents&nbsp; soil&nbsp; erosion. It stabilizes the climate. It helps in reversing the process of global warming and climate change. It helps us to provide a better quality of air. It helps in protecting&nbsp; watershed and also plays major role in creating new watersheds. It helps in preservation of wildlife. It provides employment and helps in economic upliftment of people. It provides raw material to humans without destroying the nature.</b></p><p><b>63. India has lost a very high percentage of forest covering.<span style=\"white-space:pre\">	</span>Even during Covid-19 pandemic the rate of losing forest&nbsp; cover is alarming.<span style=\"white-space:pre\">	</span>The global trend is also worrying and we are losing the forest cover at an alarming rate.</b></p><p><b>64. This Court is of the considered opinion that afforestation has become very necessary keeping in view the present scenario and in fact, such activities require appreciation rather than putting spokes in carrying out the projects like Cauvery Calling.&nbsp;</b></p><p><b>65.<span style=\"white-space:pre\">	</span>Much has been argued on the issue of planting trees on Government land and over public land. This Court during the course of the arguments has asked a pin pointed question to the learned Government Advocate to bring it to the notice of this Court any statutory provision of law, which restrains an individual/citizen of India to plant a tree on a Government land. However, no&nbsp; such&nbsp; law has been brought to the notice of this Court by the State Government. Planting trees on a barren Government land is not a crime though respondent No.3 is not planting a single tree on&nbsp; a Government land. In case, such a view is taken that planting tree on a Government land is prohibited, it will&nbsp; create&nbsp; a havoc and large number of plantations which are going on in the Country over Government land by NGO\'s without any motive will come to a standstill.</b></p><p><b>67.<span style=\"white-space:pre\">	</span>The Hon\'ble Supreme Court in the case of Association for Protection of Democratic Rights and Anr., v. State of West Bengal and ors., reported in (2021)</b></p><p><b>5 SCC 466, was dealing with the issue of felling of trees, sustainable development as well as other factors as a road over bridge was being constructed by the West Bengal and felling of trees were taking place.&nbsp; A high level committee&nbsp; was constituted in the matter and the Hon\'ble Supreme Court</b></p><p><b>has shown its concern over the climate change.&nbsp;</b></p><p><b>68.<span style=\"white-space:pre\">	</span>The Hon\'ble Supreme Court has shown grave concern in the matter of felling of trees and in the present case, the petitioner is having serious concern about afforestation.</b></p><p><b><br></b></p><p><b>H.P.Bus-Stand&nbsp; Management&nbsp; &amp;&nbsp; Development Authority</b></p><p><b><br></b></p><p><b>v.<span style=\"white-space:pre\">	</span>Central Empowered Committee, reported in (2021) 4 SCC 309, while examining the correctness of the NGT&nbsp; decision in the issue pertaining to construction of a bus stand complex at McLeod Ganj in Himachal Pradesh&nbsp; in contravention of the Forest (Conservation) Act, 1980, has dealt with the concept of environmental rule of law and the role of Courts in ensuring environmental protection.&nbsp;</b></p><p><b><br></b></p><p><b>70.<span style=\"white-space:pre\">	</span>In the aforesaid case, the Hon\'ble Supreme Court has gone to the extent in holding that the future of&nbsp; the human existence depends on how we conserve, protect and regenerate the environment today and the Cauvery Calling has been conceptualized to regenerate the environment by planting trees and the efforts of respondent No.3 deserves to be appreciated.</b></p><p><b><br></b></p><p><b>76...the loss caused to the environment can only be made good by planting new trees and in the present case, saplings have been planted by educating the land owners and they are planting the saplings on private land only. The State is not financing the project and therefore, this Court fails to understand as to what purpose the PIL is going to serve and for what aim and object has been filed by the petitioner.</b></p><p><b><br></b></p><p><b>77.<span style=\"white-space:pre\">	</span>The Hon\'ble Supreme Court has again dealt with the preservation of ecology and the principles of sustainable development in the case of N.D.Jayal v. Union of India, reported in (2004) 9 SCC 362&nbsp;</b></p><p><b>Resultantly, the writ petition is dismissed.</b></p>', '46ed1d0fdfea28a03d66a4e9da9e001b.jpg', 'cd309b6d557d1b91b1dbed1868fdcf63.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-11', 1, '', '', '2021-09-11 14:28:47', '2021-09-11 14:28:47');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1015, 'NFgh6iEsdatdRslQcN6Wsj4Sn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court exhaustively explains Karnataka State Apartment Ownership Act, 1972 and Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972 ', '<p><span style=\"font-weight: bolder;\">Shantharam Prabhu and another vs K. Dayanand Rai and others. </span><b><br></b></p><p><b>Civil Revision Petition 96 of 2021 decided on 8 Sepember 2021.</b></p><p><b>Judgment Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405583/1/CRP96-21-08-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405583/1/CRP96-21-08-09-2021.pdf</a></b></p><p><b>1) Whether the provisions of KAOA and KOFA are mutually exclusive or are they supplementary to each other?</b></p><p><b>2) Whether once an apartment is submitted to KAOA by execution of a Declaration and Deed of Apartment under KAOA, would the provisions of KOFA apply?</b></p><p><b>3) Would the provisions of KOFA apply if there is no Declaration and Deed of Apartment executed and/or submissions made under the KAOA ?</b></p><p><b>4) What is the scope and purview of KAOA and KOFA?</b></p><p><b>5) Would the purchasers be personally required to be parties to the Declaration, Deed of Apartment and bye-laws?</b></p><p><b>6) In the event of KOFA being applicable would the present suit filed before the Small Causes Court at Mangaluru in S.C.No.26/2018 be maintainable?</b></p><p><b>Question 1) Whether the provisions of KAOA and KOFA are mutually exclusive or are they supplementary to each other?</b></p><p><b>17.10. KAOA is stated to be an Act to provide for the ownership of an individual apartment in a building and to make such an Apartment heritable and transferable Property. KAOA is applicable if the owners of the Apartment submit to the provision of the KAOA by duly executing and registering a Declaration and Deed of Apartment. Some of the definitions of the KAOA which are relevant are Sections 3 (a), (b), (d), (e) (f), (g), (i), (j) and (q) </b></p><p><b>17.18. Declaration and the Deed of Apartment in respect of each Apartment as also the floor plans of the building showing layout, location, apartment numbers and dimensions of the apartments along with a verified statement of an architect are required to be submitted and registered under the Registration Act, 1908 with the Registrar of Assurances/Sub- Registrar.</b></p><p><b>17.19. In terms of Section 13 (5) of KAOA, which deals with any person acquiring any Apartment, it is deemed that such person has notice of the Declaration and the Deed of Apartment as from the date of its registration under Section 13 of KAOA.</b></p><p><b>17.20. Section 14 of KAOA provides for removal of the Apartment from the provision of the Act by effecting an instrument in that regard with </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the concurrence of all holders of all charges and other encumbrances on the Property. </b></p><p><b>17.60. From the above, it is seen that KAOA deals with all aspects of an apartment used for residential purposes, including ownership of an apartment and matters relating thereto namely details as mentioned above viz., insurance, repairs, assessment, payment of taxes. KAOA is basically premised on Declaration, Deed Of Apartment and Bye-Laws and contents thereof.</b></p><p><b>17.66. Thus, a reading of Rule 9 of KOFA Rules makes it clear that it is not necessary to form a Co-operative Society or a Company. The decision is of the owners and the same could be submitted to the provisions KAOA by executing Declaration and Deed Of Apartment in which case, there is no need to form a Co- operative Society or Company but only information of the execution of Declaration and Deed Of Apartment is to be communicated to the Registrar of the Co- operative Societies, registration thereof having been done before the Registrar of Assurances/Sub-Registrar.</b></p><p><b>17.67. In view of the above discussion, KAOA is clearly dealing with the ownership of the Apartment, transfer of apartments, formation of the Association for the Management of the Building, Property and the management thereof etc.,</b></p><p><b>17.69. In view thereof, KAOA and KOFA though cannot be said to be mutually exclusive, they cannot also be said to be supplemental to each other.</b></p><p><b>17.70. Both Acts would apply in different time periods in that KOFA would be applicable until the Apartment is subjected to the provisions of KAOA, if the Apartment is not subjected to KAOA, KOFA would continue to apply. Once an Apartment, Building, Property is subjected to the provisions of KAOA by execution of Declaration, Deed of Apartment and Bye Laws KOFA would stop being applicable.</b></p><p><b>17.71. Thus I Answer Point No.1 by holding that KAOA and KOFA cannot be said to be mutually exclusive nor can they be said to be supplementary to each other in as much as both the acts cannot apply at the same time.</b></p><p><b>18. Whether once an apartment is submitted to KAOA by execution of a declaration and Deed of Apartment under KAOA, would the provisions of KOFA apply?</b></p><p><b>18.1. Rule 9 of the KOF Rules, which has been extracted hereinabove, would indicate that a promoter is required to submit an application for registration to the Registrar of a Co-operative Society or the Registrar of Companies, as the case may be, within 4 months from the date on which the minimum number of persons required to form such organisation have taken flats.</b></p><p><b>18.2. The said KOF Rules also provides for a situation where the apartment takers propose to submit the apartments to the provisions of KAOA by executing Declaration and Deeds of Apartment as required by that Act, the promoters shall inform the Registrar as defined in the Karnataka Co-operative Societies Act, 1959 as soon as possible after a date on which all the Apartment Owners have executed such Declaration and Deeds of Apartment.</b></p><p><b>18.3. Though the said Rule or any other provisions of KOFA or Rules framed thereunder do not specifically indicate that when such Declaration and Deeds of Apartment is executed under KAOA the Jurisdiction of KOFA is excluded, a meaningful reading would indicate that if Declaration and deeds of Apartment is executed under KAOA and Apartment is subjected to the provisions of KAOA, it is only information that is required to be provided to the Registrar of Co-operative Societies. Such providing of information would essentially imply that there is no registration of a co-operative society which is contemplated since this is an exception created under the said Rule.</b></p><p><b>18.4. It is only if a Co-operative Society is registered, the said Co-operative society would come within the preview of KOFA and not an Association formed by way of a Declaration and Deed of Apartment being executed under KAOA.</b></p><p><b>18.7. Thus in a sense, the Declaration, Deed of Apartment and the bye-laws provide for all aspects relating to the Apartment, Building and Property. The interse rights and liabilities of parties being reflected and covered by the said document, it can not be that the  provision of KAOA and KOFA would apply at the same time.</b></p><p><b>18.8. Once a Declaration and Deed of Apartment is executed, then the Apartment, Building and Property will come within the preview of the KAOA, it is only in the absence there of that KOFA would apply.</b></p><p><b>18.9. Hence, I answer Point No.2 by holding that once an apartment is submitted to KAOA by execution of a Declaration and Deed of Apartment under KAOA, the provisions of KOFA would not apply, it is only the provisions of KAOA which would apply.</b></p><p><b>19.<span style=\"white-space:pre\">	</span>Answer to point No.3: Would the provisions of KOFA apply if there is no Declaration and Deed of Apartment executed and/or submissions made under the KAOA?</b></p><p><b>19.1. In pursuance of the discussion and the answer to point Nos. 1 and 2, it is clear that when there is a Declaration and Deed of Apartment executed, then it is the KAOA which would be applicable to all the matters relating to the ownership of an apartment and or Management of the Building and Property which would be covered by the Declaration, Deed of Apartment and Bye-laws formulated. Such being the case, it is not envisaged that KOFA is also made applicable.</b></p><p><b>19.2. In terms of Rule 9 of the KOFA Rules, the execution of a Declaration and Deed of Apartment as also the bye-laws would only have to be informed to the Registrar of Co- operative society.</b></p><p><b>19.3. Thus, conversely if there is no declaration and Deed of Apartment executed, then the Apartment as also the apartment complex would not have been submitted to the KAOA and in such a situation, it is the KOFA which would be applicable, of course many of the provisions of KOFA overlapping with the Real Estate (Regulation and Development) Act, 2016, the provisions thereof would also be applicable.</b></p><p><b>19.4. I answer Point No.3 by holding that the provision of KOFA would apply if there is no declaration, Deed of Apartment or bye-laws executed and or if the Building and Property not having been submitted to the provision of KAOA.</b></p><p><b>20.<span style=\"white-space:pre\">	</span>Answer to Point No.4: What is the scope and purview of KAOA and KOFA?</b></p><p><b>20.2. In KOFA, the definition of flat is wider and would also cater to an office unit, whereas an apartment under KAOA relates only to a residential unit.</b></p><p><b>20.3. Under KOFA a co-operative society or a company to manage the affairs of an apartment complex would have to be formed and registered, if in the case of the co- operative society before the Registrar of a co- operative society and in the case of the company before the Registrar of companies.</b></p><p><b>20.6. The perusal of the definition of Apartment in terms of Section 3 (a) of the KAOA indicates that it would only apply to an apartment that is used for residential purposes and not as an office or showroom or shop, or godown. Under the KAOA, the Declaration and Deed of Apartment and Bye-laws would have to be executed to deal with and cater to an apartment, Building or Property.</b></p><p><b>20.10. In view of the above it is clear that KAOA will not apply in respect of an office or showroom or shop or godown (and includes a garage), dealt with by the KOFA. Thus KOFA will apply to an office or showroom or shop or godown. This being so, for the reason that they cannot be made subject to KAOA which only deals with Apartment used for residential purpose.</b></p><p><b>20.11. Thus, I answer point no.4 by holding that KAOA would apply to Apartment as defined under Section 3(a) of the KAOA used for residential purposes when a Declaration, Deed of Apartment and bye-laws are executed in relation thereto. KOFA would apply to flats as defined under Section 2(a) of the KOFA which includes flats, used or intended to be used for residence, office or showroom or shop or godown. However, if the flat is used for residential purpose and is made subject to KAOA by execution of a declaration, Deed of Apartment and bye-laws KOFA would not apply to residential Apartment, building or Property. KOFA would always apply to an office or showroom or shops or godown since, they cannot be made subject to KAOA. KOFA </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">would apply if the Apartment is removed from the purview of KAOA, from and after such removal.</b></p><p><b>20.12. Declaration, Deed of Apartment and Bye-laws in respect of an apartment building or Property can be executed at any point of time and not necessarily when the Apartment complex is ready or sale made there of. As and when the Declaration, Deed of Apartment and bye-laws is executed under the KAOA the said Apartment, building and Property would come out of the preview of the KOFA and be subject to the provisions of KAOA.</b></p><p><b>21. Answer to Point No.5: Would purchasers be required to be parties to the Declaration, Deed of Apartment and Bye-laws or could the Promoter or owner/developer subject the same to KAOA by execution of Declaration, Deed of Apartment and Bye-laws prior to such sale?</b></p><p><b>21.8. I answer point no.5 by holding that the purchasers as such are not required to be signatories to the Declaration, Deed of Apartment and bye-laws. The promoters could, before the sale of the Apartment being the owner/developer of the Property or in the case of joint development, along with the owner of the land, subject the Apartment, building and Property to KAOA by execution of Declaration Deed of Apartment and Bye-laws. Execution of Form B by any purchaser would automatically bind them to the contents of Declaration Deed of Apartment and Bye-laws already executed and registered.</b></p><p><b>22.<span style=\"white-space:pre\">	</span>Answer to point no.6: In the event of KOFA being applicable, would the present suit filed before the Small Causes Court at Mangaluru in S.C.No.26/2018 be maintainable?</b></p><p><b>22.1. As afore discussed on account of Declaration, Deed of Apartment and Bye-laws having been executed the present Apartment would not come within the preview of KOFA, it is only in the event of such a declaration, Deed of Apartment, bye-laws not being executed then the Apartment would come within the purview of KOFA in terms of Section 13 thereof extracted hereinabove.</b></p><p><b>22.3. A flat owner coming within the purview of KOFA can approach as against the action taken by the Manager of the flats for having disconnected any supply or service to the Court of Small Causes established under Karnataka Small Causes Court Act, 1964 or the Court of Civil Judge having Jurisdiction seeking for restoration of the supply or service.</b></p><p><b>22.4. In the present case, there being Small Cause Court established in Mangalore, the Court of small causes would have Jurisdiction to adjudicate such a claim made by the flat owners, and SC No.26 of 2018 would be maintainable.</b></p><p><b>22.5. However, since in the present case, the Apartment has been subjected to the provisions of KAOA by execution of Declaration Deed of Apartment and Bye-laws, the remedy provided under Section 13 of the KOFA is not available to the Plaintiffs.</b></p><p><b style=\"background-color: rgb(255, 255, 0);\">23.<span style=\"white-space:pre\">	</span>To Summarise:</b></p><p><b>23.1. KAOA would only apply to an apartment where it is used for residential purposes. A flat or an apartment which is used for an office or showroom or shop or godown (and includes garage) cannot be </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">subjected to KAOA and would always continue to be governed by KOFA.</b></p><p><b>23.2. When an apartment is proposed to be constructed or under construction and agreements are entered into, KOFA would apply insofar as the relationship and/or dispute between the purchaser and the Promoter.</b></p><p><b>23.3. KOFA would continue to apply if the Apartment is not subjected to KAOA as afore detailed.</b></p><p><b>23.4. Once an apartment is subjected to KAOA, KOFA would cease to apply and it is only the KAOA, Declaration, Deed of Apartment and bye-laws which would be applicable.</b></p><p><b>23.5. In the event of an apartment being removed from the provisions of KAOA in </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">terms of Section 14 of KAOA, KOFA would come into operation.</b></p><p><b>23.6. Essentially KAOA, Declaration, Deed of Apartment and bye-laws would be the provisions under which the relationship between an apartment owner and Association of the Apartment, building, property, which would be governed.</b></p><p><b>23.7. KOFA would apply insofar as the relationship and/or dispute between the purchaser of an apartment and Promoter and any defaults on part of the Promoter. The other enactments like RERA would also be applicable.</b></p><p><b>23.8. Even when an Apartment is not subjected to KAOA and KOFA applies, the dispute and the relationship between the apartment owner and the Association would be governed in terms of the rules </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and regulations under the Co-operative Society under which the said Association is registered or the terms of articles and memorandum of Association of company under which the said Association is registered.</b></p><p><b>23.9. If the Association is formed under KOFA, registration of the Association would be required under the Karnataka Co- operative Societies Registration Act and/or the Companies Act depending on whether it is a Co-operative Society or a Company which is to be registered.</b></p><p><b>23.10. In the event of a declaration, Deed of Apartment and byelaws being executed and the Apartment, building, property is subjected to KAOA, the said documents would have to be registered before the jurisdictional Sub-Registrar </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and the same be informed to the Registrar of the Co-operative Societies.</b></p><p><b>23.11. There would be no requirement for registration of the Declaration, Deed of Apartment and/or bye-laws with the Registrar of the Co-operative Societies.</b></p><p><b>23.12. If the property is subjected to KAOA, the proceedings if any would have to be filed before the Civil Court of competent jurisdiction.</b></p><p><b>23.13. If a Co-operative Society or a Company is formed to manage the property, and the provision of KOFA being applicable the proceedings would have to be filed in terms of Section 13(5) before a Small Causes Court where a Small Causes Court is established, in the absence thereof, before a Civil Court of competent jurisdiction.</b></p><p><b>23.14. All the apartment owners are not required to sign and execute the Declaration, Deed of Apartment and bye- laws. The Promoter before  registration of a sale deed can execute and register the Declaration, Deed of Apartment and bye-laws with the jurisdictional Sub- Registrar being the owner of the Apartment, building and property. If there is a joint development agreement, the owner of the property would also have to join the execution of the registration of the above documents. Suffice it to say, it is only the persons or entities who have registered title in respect of the property who are required to execute and register the above documents.</b></p><p><b>23.15. On the purchase of the property and registration of the sale deed, the purchaser or apartment taker would have to execute necessary Declaration under Form B of KAOR agreeing to be bound by the said Declaration, Deed of Apartment and bye-laws. The Association when formed could always amend the same in terms of the provisions applicable thereto.</b></p><p><b>24.<span style=\"white-space:pre\">	</span>Answer to point No.7: What Order?</b></p><p><b>24.1. In view of the discussion above, since the Apartment in question is subjected to KAOA by execution of a Declaration, Deed of Apartment and bye-laws KOFA would not be applicable, no proceedings could have been initiated under Section 13 (5) before the Small Causes Court, Mangalore the said proceedings not being maintainable is barred under provision of the KAOA, the trial court has </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">rightly allowed the application under Order VII of the Rule 11(a) and (b) of the CPC.</b></p><p><b>The petitions stand dismissed</b></p><p><b> </b></p>', 'd3303112a2c43f4b2d1152a664cfccb2.jpeg', 'f83f874c28ddd9f6f7c686aa73df642b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-11', 1, '', '', '2021-09-11 15:31:17', '2021-09-11 15:32:17'),
(1016, 'HL6VBfmpmqwG6mVAbHmBpMrD1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land acquisition. Compensation. In cases where land is valued on the basis of sales statistics, trees will have to be valued separately. Supreme Court.  ', '<p><b>Bhupendra Ramdhan Pawar vs Vidarbha Irrigation Development Corporation, Nagpur and others.&nbsp;</b></p><p><b>Civil Appeal 5611-5612 of 2021 decided on 9 September 2021.&nbsp;</b></p><p><b>Justice Ajay Rastogi and Justice Abhay S. Oka.&nbsp;</b></p><p><b>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2016/37101/37101_2016_44_1501_29912_Judgement_09-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2016/37101/37101_2016_44_1501_29912_Judgement_09-Sep-2021.pdf</a></b></p><p><b>14. Admittedly, for 2 hectares of land, compensation has not been awarded&nbsp; &nbsp;and&nbsp; &nbsp;it&nbsp; &nbsp;is&nbsp; &nbsp;not&nbsp; &nbsp;disputed&nbsp; &nbsp;that&nbsp; &nbsp;the&nbsp; &nbsp;land&nbsp; &nbsp;value&nbsp; &nbsp;has&nbsp; &nbsp;been determined&nbsp; &nbsp;with&nbsp; &nbsp;reference&nbsp; &nbsp;to&nbsp; &nbsp;sales&nbsp; &nbsp;statistics&nbsp; &nbsp;and&nbsp; &nbsp;this&nbsp; &nbsp;Court&nbsp; &nbsp;in Ambya Kalya Mhatre(Dead) through LRs and Others(supra) held that in a case where the land value has been determined with reference to the sales statistics, the trees will have to be valued separately.&nbsp; The relevant paras as referred hereunder:­</b></p><p><b><i>34. The High Court has also held that once the compensation is awarded&nbsp; &nbsp;for&nbsp; &nbsp;the&nbsp; &nbsp;land,&nbsp; &nbsp;there&nbsp; &nbsp;cannot&nbsp; &nbsp;be&nbsp; &nbsp;additional&nbsp; &nbsp;or&nbsp; &nbsp;separate compensation for the trees. For this purpose, the High Court has relied upon the following observations of this Court in State&nbsp; of Haryana v. Gurcharan Singh [1995 Supp (2) SCC 637])</i></b></p><p><b><i>“3. … It is settled law that the Collector or the court who determines the compensation for the land as well as&nbsp; &nbsp;fruit­bearing&nbsp; &nbsp;trees&nbsp; &nbsp;cannot&nbsp; &nbsp;determine&nbsp; &nbsp;them separately. The compensation is to the value of the acquired land. The market value is determined on the basis of the yield. Then necessarily applying suitable multiplier,&nbsp; &nbsp;the&nbsp; &nbsp;compensation&nbsp; &nbsp;needs&nbsp; &nbsp;to&nbsp; &nbsp;be&nbsp; &nbsp;awarded. Under no circumstances the court should allow the compensation on the basis of the nature of the land as well&nbsp; &nbsp;as&nbsp; &nbsp;fruit­bearing&nbsp; &nbsp;trees.&nbsp; &nbsp;In&nbsp; &nbsp;other&nbsp; &nbsp;words,&nbsp; &nbsp;market value of the land is determined twice over; once on the basis of the value of the land and again on the basis of the&nbsp; &nbsp;yield&nbsp; &nbsp;got&nbsp; &nbsp;from&nbsp; &nbsp;the&nbsp; &nbsp;fruit­bearing&nbsp; &nbsp;trees.&nbsp; &nbsp;The definition of land includes the benefits which accrue from the land as defined in Section 3(a) of the Act. After compensation is determined on the basis of the value of the land as distinct from the income applying suitable&nbsp; &nbsp;multiplier,&nbsp; &nbsp;then&nbsp; &nbsp;the&nbsp; &nbsp;trees&nbsp; &nbsp;would&nbsp; &nbsp;be&nbsp; &nbsp;valued only as firewood and necessary compensation would be given.”</i></b></p><p><b><i>35. We&nbsp; &nbsp;are&nbsp; &nbsp;afraid&nbsp; &nbsp;that&nbsp; &nbsp;the&nbsp; &nbsp;High&nbsp; &nbsp;Court&nbsp; &nbsp;has&nbsp; &nbsp;misread&nbsp; &nbsp;the&nbsp; &nbsp;said decision in regard to valuing the land and trees separately. If the land value&nbsp; had&nbsp; been determined&nbsp; &nbsp;with&nbsp; &nbsp;reference&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;sale statistics or compensation awarded for a nearby vacant land, then necessarily, the trees will have to be valued separately. But if the value of the land has been determined on the basis of the sale statistics or compensation awarded for an orchard, that is land with fruit­bearing trees, then there is no question of again adding the&nbsp; &nbsp;value&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;trees.&nbsp; &nbsp;Further,&nbsp; &nbsp;if&nbsp; &nbsp;the&nbsp; &nbsp;market&nbsp; &nbsp;value&nbsp; &nbsp;has&nbsp; &nbsp;been determined by capitalising the income with reference to yield, then also the question of making any addition either for the land or for the trees separately does not arise. In this case, the determination of market value was not with reference to the yield. Nor was the determination of market value in regard to the land with reference to&nbsp; the&nbsp; &nbsp;value&nbsp; of&nbsp; any&nbsp; orchard&nbsp; &nbsp;but&nbsp; &nbsp;was&nbsp; with&nbsp; &nbsp;reference&nbsp; &nbsp;to&nbsp; vacant agricultural&nbsp; &nbsp;land.&nbsp; &nbsp;In&nbsp; the&nbsp; &nbsp;circumstances,&nbsp; the&nbsp; &nbsp;value&nbsp; of&nbsp; the&nbsp; &nbsp;trees could be added to the value of the land.</i></b></p><p><b>15. Admittedly,&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;instant&nbsp; &nbsp;case,&nbsp; &nbsp;the&nbsp; &nbsp;land&nbsp; &nbsp;value&nbsp; &nbsp;has&nbsp; &nbsp;been determined with reference to the sales statistics by the High Court in the impugned judgment.&nbsp; That being the factual position, in our considered&nbsp; &nbsp;view,&nbsp; &nbsp;the&nbsp; &nbsp;appellant&nbsp; &nbsp;is&nbsp; &nbsp;entitled&nbsp; &nbsp;for&nbsp; &nbsp;compensation&nbsp; &nbsp;for 2 hectares of land in reference to which compensation has not been awarded&nbsp; &nbsp;under&nbsp; &nbsp;the&nbsp; &nbsp;impugned&nbsp; &nbsp;judgment&nbsp; &nbsp;at&nbsp; &nbsp;the&nbsp; &nbsp;rate&nbsp; &nbsp;of&nbsp; &nbsp;Rs. 1,00,000/­&nbsp; &nbsp;per&nbsp; &nbsp;hectare&nbsp; &nbsp;along&nbsp; &nbsp;with&nbsp; &nbsp;statutory&nbsp; &nbsp;entitlement&nbsp; &nbsp;to&nbsp; &nbsp;the claimant/appellant as referred to by the High Court in para (viii) till realization under the impugned judgment</b></p>', '0e6c1c291384fb24e57ee544ead76743.JPG', '270ed3769d69243a89648e5bb1c77992.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-11', 1, '', '', '2021-09-12 00:21:10', '2021-09-12 00:21:10'),
(1017, 'DdWJvRlaXaZrfc3NMjTFaMihV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Section 100. There is no prohibition on entertaining a second appeal even on a question of fact when the findings of fact are found to be perverse. Supreme Court reiterates ', '<p><b>K.N. Nagarajappa and others vs H. Narasimha Reddy&nbsp;</b></p><p><b>Civil Appeal 5033-5034 of 2009 decided on 9 September 2021</b></p><p><b>Justice L. Nageswara Rao and Justice S. Ravindra Bhat.&nbsp;</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2008/28539/28539_2008_32_1501_29895_Judgement_09-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2008/28539/28539_2008_32_1501_29895_Judgement_09-Sep-2021.pdf</a></b></p><p><b>14. Undoubtedly, the jurisdiction which a High Court derives under Section\r\n100 is based upon its framing of a substantial question of law. As a matter of\r\nlaw, it is axiomatic that the findings of the first appellate court are final.\r\nHowever, the rule that sans a substantial question of law, the High Courts\r\ncannot interfere with findings of the lower Court or concurrent findings of fact,\r\nis subject to two important caveats. The first is that, if the findings of fact are\r\npalpably perverse or outrage the conscience of the court; in other words, it flies\r\non the face of logic that given the facts on the record, interference would be\r\njustified. The other is where the findings of fact may call for examination and\r\nbe upset, in the limited circumstances spelt out in Section 103 CPC.</b></p><p><b>15. Section 103 CPC reads as follows:<br></b></p><p><b><i>“103.Power of High Court to determine issues of fact\r\nIn any second appeal, the High Court may, if the evidence on the record is\r\nsufficient, determine any issue necessary for the disposal of the appeal,-\r\n(a) which has not been determined by the lower Appellate Court or both by the\r\nCourt of first instance and the lower Appellate Court, or\r\n(b) which has been wrongly determined by such Court or Courts reason of a\r\ndecision on such question of law as is referred to in section 100.”</i><br></b></p><p><b>16. In the judgment reported as Municipal Committee, Hoshiarpur v. Punjab\r\nState Electricity Board&nbsp;</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(2010) 13 SCC 216</b></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">, this court held as follows:</b></p><p><b><i>“26. Thus, it is evident that Section 103 CPC is not an exception to Section\r\n100 CPC nor is it meant to supplant it, rather it is to serve the same purpose.\r\nEven while pressing Section 103 CPC in service, the High Court has to record\r\na finding that it had to exercise such power, because it found that finding (s) of\r\nfact recorded by the court (s) below stood vitiated because of perversity. More\r\nso, such power can be exercised only in exceptional circumstances and with\r\ncircumspection, where the core question involved in the case has not been\r\ndecided by the court(s) below.\r\n27. There is no prohibition on entertaining a second appeal even on a\r\nquestion of fact provided the court is satisfied that the findings of fact\r\nrecorded by the courts below stood vitiated by non-consideration of relevant\r\nevidence or by showing an erroneous approach to the matter i.e. that the\r\nfindings of fact are found to be perverse. But the High Court cannot interfere\r\nwith the concurrent findings of fact in a routine and casual manner by\r\nsubstituting its subjective satisfaction in place of that of the lower courts.\r\n(Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647]; Karnataka Board of\r\nWakf v. Anjuman-E-Ismail Madris-Un-Niswan [(1999) 6 SCC 343]\r\nand Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740].)\r\n28. If a finding of fact is arrived at by ignoring or excluding relevant\r\nmaterial or by taking into consideration irrelevant material or if the finding so\r\noutrageously defies logic as to suffer from the vice of irrationality incurring\r\nthe blame of being perverse, then the finding is rendered infirm in the eye of\r\nthe law. If the findings of the Court are based on no evidence or evidence\r\nwhich is thoroughly unreliable or evidence that suffers from the vice of\r\nprocedural irregularity or the findings are such that no reasonable person\r\nwould have arrived at those findings, then the findings may be said to be\r\nperverse. Further if the findings are either ipse dixit of the Court or based on\r\nconjecture and surmises, the judgment suffers from the additional infirmity of\r\nnon-application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R.\r\nVijaya Renganathan [(2010) 11 SCC 483]”&nbsp;</i></b></p><p><b>17. In a recent judgment of this court, Narayan Sitaramji Badwaik (Dead)\r\nThrough Lrs. v Bisaram &amp; Ors3\r\nthis court observed as follows, in the context of\r\nHigh Courts’ jurisdiction to appreciate factual issues under Section 103 IPC:&nbsp;<br></b></p><p><b><i>“11. A bare perusal of this section clearly indicates that it provides for the High\r\nCourt to decide an issue of fact, provided there is sufficient evidence on record before\r\nit, in two circumstances. First, when an issue necessary for the disposal of the appeal\r\nhas not been determined by the lower Appellate Court or by both the Courts below.\r\nAnd second, when an issue of fact has been wrongly determined by the Court(s)\r\nbelow by virtue of the decision on the question of law under Section 100 of the Code\r\nof Civil Procedure.”<br></i></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '527e1333a6b29cf96e1e78ffd8c11137.JPG', '9380c3f96b07431e5b8ce10f8dd81c55.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-11', 1, '', '', '2021-09-12 00:40:33', '2021-09-12 00:40:33'),
(1018, 'rfimV4eQyy6KecwmGanJCl1i4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act. Contours of the Court’s power to review arbitral awards explained. Every error of law would not amount to ‘patent illegality’ and erroneous application of law cannot be categorised as patent illegality. Supreme Court', '<p><b>Delhi Airport Metro Express Pvt Ltd vs Delhi Metro Rail Corporation Ltd. </b></p><p><b>Civil Appeal No. 5627 of 2021\r\n (Arising out of SLP (C) No. 4115 of 2019) decided on 9 September 2021. <br></b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/3712/3712_2019_35_1501_29929_Judgement_09-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/3712/3712_2019_35_1501_29929_Judgement_09-Sep-2021.pdf</a></b></p><p><b><u>Contours of the Court’s power to review arbitral\r\nawards\r\n</u>20. The 1996 Act was enacted to consolidate and amend\r\nthe law relating to domestic arbitration, international\r\ncommercial arbitration and enforcement of foreign arbitral\r\nawards and also to define the law relating to conciliation and\r\nfor matters connected therewith, by taking into account the\r\nUnited Nations Commission on International Trade Law\r\n(UNCITRAL) Model Law on International Commercial\r\nArbitration and the UNCITRAL Conciliation Rules. One of the\r\nprincipal objectives of the 1996 Act is to minimize the\r\nsupervisory role of courts in the arbitral process. With\r\nrespect to Part I of the 1996 Act, Section 5 imposes a bar on\r\nintervention by a judicial authority except where provided\r\nfor, notwithstanding anything contained in any other law for\r\nthe time being in force. An application for setting aside an\r\narbitral award can only be made in accordance with\r\nprovisions of Section 34 of the 1996 Act. </b></p><p><b>21. An amendment was made to Section 34 of the 1996 Act\r\nby the Arbitration and Conciliation (Amendment) Act, 2015\r\n(hereinafter, ‘the 2015 Amendment Act’). A perusal of the\r\nstatement of objects and reasons of the 2015 Amendment\r\nAct would disclose that the amendment to the 1996 Act\r\nbecame necessary in view of the interpretation of the\r\nprovisions of the 1996 Act by courts in certain cases which\r\nhad resulted in delay of disposal of arbitration proceedings\r\nand increase in interference by courts in arbitration matters,\r\nwhich had the tendency to defeat the object of the 1996 Act. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Initially, the matter was referred to the Law Commission of\r\nIndia to review the shortcomings in the 1996 Act in detail.\r\nThe Law Commission of India submitted its 176th Report,\r\nrecommending various amendments to the 1996 Act.\r\nHowever, the Justice Saraf Committee on Arbitration\r\nconstituted by the Government, was of the view that the\r\nproposed amendments gave room for substantial\r\nintervention by the court and were also contentious.\r\nThereafter, on reference, the Law Commission undertook a\r\ncomprehensive study of the amendments proposed by the\r\nGovernment, keeping in mind the views of the Justice Saraf\r\nCommittee and other stakeholders. The 246th Report of the\r\nLaw Commission was submitted on 05.08.2014. Acting on\r\nthe recommendations made by the Law Commission in its\r\n246th Report, amendments by way of the 2015 Amendment\r\nAct were made to several provisions of the 1996 Act,\r\nincluding Section 34.  </span></b></p><p><b>22. A cumulative reading of the UNCITRAL Model Law and\r\nRules, the legislative intent with which the 1996 Act is made,\r\nSection 5 and Section 34 of the 1996 Act would make it clear that judicial interference with the arbitral awards is limited to\r\nthe grounds in Section 34. While deciding applications filed\r\nunder Section 34 of the Act, courts are mandated to strictly\r\nact in accordance with and within the confines of Section 34,\r\nrefraining from appreciation or re-appreciation of matters of\r\nfact as well as law. (See: Uttarakhand Purv Sainik Kalyan\r\nNigam Limited. v. Northern Coal Field Limited. (2020) 2 SCC 455,\r\nBhaven Construction Through Authorised Signatory\r\nPremjibhai K. Shah v. Executive Engineer Sardar\r\nSarovar Narmada Nigam Ltd. and Another 2021 SCC OnLine SC 8\r\n and\r\nRashtriya Ispat Nigam Limited v. Dewan Chand Ram\r\nSaran (2012) 5 SCC 306.</b></p><p><b>\r\n23. For a better understanding of the role ascribed to courts\r\nin reviewing arbitral awards while considering applications\r\nfiled under Section 34 of the 1996 Act, it would be relevant to\r\nrefer to a judgment of this Court in Ssangyong\r\nEngineering and Construction Company Limited v.\r\nNational Highways Authority of India (NHAI) (2019) 15 SCC 131 wherein\r\nR.F. Nariman, J. has in clear terms delineated the limited area\r\nfor judicial interference, taking into account the amendments\r\nbrought about by the 2015 Amendment Act. <br></b></p><p><b>24. This Court has in several other judgments interpreted\r\nSection 34 of the 1996 Act to stress on the restraint to be\r\nshown by courts while examining the validity of the arbitral\r\nawards. The limited grounds available to courts for\r\nannulment of arbitral awards are well known to legally\r\ntrained minds. However, the difficulty arises in applying the\r\nwell-established principles for interference to the facts of\r\neach case that come up before the courts. There is a\r\ndisturbing tendency of courts setting aside arbitral awards,\r\nafter dissecting and reassessing factual aspects of the cases\r\nto come to a conclusion that the award needs intervention\r\nand thereafter, dubbing the award to be vitiated by either\r\nperversity or patent illegality, apart from the other grounds\r\navailable for annulment of the award. This approach would\r\nlead to corrosion of the object of the 1996 Act and the endeavours made to preserve this object, which is minimal\r\njudicial interference with arbitral awards. That apart, several\r\njudicial pronouncements of this Court would become a dead\r\nletter if arbitral awards are set aside by categorising them as\r\nperverse or patently illegal without appreciating the contours\r\nof the said expressions. <br></b></p><p><b>25. Patent illegality should be illegality which goes to the\r\nroot of the matter. In other words, every error of law\r\ncommitted by the Arbitral Tribunal would not fall within the\r\nexpression ‘patent illegality’. Likewise, erroneous application\r\nof law cannot be categorised as patent illegality. In addition,\r\ncontravention of law not linked to public policy or public\r\ninterest is beyond the scope of the expression ‘patent\r\nillegality’. What is prohibited is for courts to re-appreciate\r\nevidence to conclude that the award suffers from patent\r\nillegality appearing on the face of the award, as courts do not\r\nsit in appeal against the arbitral award. The permissible\r\ngrounds for interference with a domestic award under\r\nSection 34(2-A) on the ground of patent illegality is when the\r\narbitrator takes a view which is not even a possible one, or\r\ninterprets a clause in the contract in such a manner which no\r\nfair-minded or reasonable person would, or if the arbitrator\r\ncommits an error of jurisdiction by wandering outside the contract and dealing with matters not allotted to them. An\r\narbitral award stating no reasons for its findings would make\r\nitself susceptible to challenge on this account. The\r\nconclusions of the arbitrator which are based on no evidence\r\nor have been arrived at by ignoring vital evidence are\r\nperverse and can be set aside on the ground of patent\r\nillegality. Also, consideration of documents which are not\r\nsupplied to the other party is a facet of perversity falling\r\nwithin the expression ‘patent illegality’.</b></p><p><b>26. Section 34 (2) (b) refers to the other grounds on which\r\na court can set aside an arbitral award. If a dispute which is\r\nnot capable of settlement by arbitration is the subject-matter\r\nof the award or if the award is in conflict with public policy of\r\nIndia, the award is liable to be set aside. Explanation (1),\r\namended by the 2015 Amendment Act, clarified the\r\nexpression ‘public policy of India’ and its connotations for the\r\npurposes of reviewing arbitral awards. It has been made\r\nclear that an award would be in conflict with public policy of\r\nIndia only when it is induced or affected by fraud or\r\ncorruption or is in violation of Section 75 or Section 81 of the\r\n1996 Act, if it is in contravention with the fundamental\r\npolicy of Indian law or if it is in conflict with the most basic\r\nnotions of morality or justice. In Ssangyong (supra), this Court held that the meaning of the expression ‘fundamental\r\npolicy of Indian law’ would be in accordance with the\r\nunderstanding of this Court in Renusagar Power Co. Ltd.\r\nv. General Electric Co.\r\n1994 Supp (1) SCC 644.   In Renusagar (supra), this Court\r\nobserved that violation of the Foreign Exchange Regulation\r\nAct, 1973, a statute enacted for the ‘national economic\r\ninterest’, and disregarding the superior courts in India would\r\nbe antithetical to the fundamental policy of Indian law.\r\nContravention of a statute not linked to public policy or\r\npublic interest cannot be a ground to set at naught an\r\narbitral award as being discordant with the fundamental\r\npolicy of Indian law and neither can it be brought within the\r\nconfines of ‘patent illegality’ as discussed above. In other\r\nwords, contravention of a statute only if it is linked to public\r\npolicy or public interest is cause for setting aside the award\r\nas being at odds with the fundamental policy of Indian law. If\r\nan arbitral award shocks the conscience of the court, it can\r\nbe set aside as being in conflict with the most basic notions\r\nof justice. The ground of morality in this context has been\r\ninterpreted by this Court to encompass awards involving\r\nelements of sexual morality, such as prostitution, or awards seeking to validate agreements which are not illegal but\r\nwould not be enforced given the prevailing mores of the day.<br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p> <b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b><br></p>', 'b4165dc4d9c7532f0f976a399e39a300.JPG', 'af842f961ef3e35bc2fca141bf8c9642.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-12', 1, '', '', '2021-09-12 18:42:22', '2021-09-12 18:45:55'),
(1019, 'Yvn7sPSrWCxTJaSZdLkO6HRPU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Local Authorities (Prohibition of Defection) Act, 1987. Issuance of Whip, Enquiry by Competent Authority etc explained. Karnataka High Court. ', '<p><b>Bhagyamma vs The Government of Karnataka and others</b></p><p><span style=\"font-weight: bolder;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405580/1/WP14171-21-08-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405580/1/WP14171-21-08-09-2021.pdf</a></span><b><br></b></p><p><b>Writ Petition 14171 of 2021 decided on 8 September 2021.&nbsp;</b></p><p><b>13...It cannot&nbsp; be&nbsp; said&nbsp; that the District President had no authority to do so, more so, in the light of the fact that&nbsp; several&nbsp; delegations having been done the past, the nearest past even, have been issued by the District Presidents of such political parties. It would not be out of place to refer to several delegations of issuance of whip in the past or whip&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">being issued by the District Presidents....Therefore, in the light of the provision of the Act and the afore-extracted whip issued from time to time, it cannot be contended by the petitioner that whip issued by the President of the Tumkur District Unit of&nbsp; the&nbsp; Janatha Dal (Secular) was without authority of law. The said contention deserves to be rejected.&nbsp;</b></p><p><b>14...Section 4(2) of the Act mandates that the complaint that is registered is to be transmitted to the Competent Authority within 24 hours of its receipt and that proceedings shall be concluded within 60 days from its commencement. It is these provisions that the learned counsel for the petitioner seeks to rely on to contend&nbsp; that proceedings are vitiated on account of violation of the mandate of the aforesaid provisions.</b></p><p><b>15.<span style=\"white-space:pre\">	</span>Insofar as transmission of the complaint registered to the Competent Authority within 24 hours is concerned, the provision though reads it to be mandatory, this Court interpreting the very provision has held it to be directory as there is no penal consequence that is depicted under the Act for violation of the said provision, in the case of DHARMAPPA SABANNA MADAR v. CHIEF SECRETARY ILR 1990 KAR 1637.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">This judgment rendered by the learned single Judge was carried in appeal by the writ petitioner, which also came to be dismissed by the Division Bench by its judgment dated 19-09-1991 in Writ Appeal Nos.712 and 713 of 1990 reported under the very same title in ILR 1991 KAR 3723....In view of judicial interpretation of the very provision, the learned counsel appearing for the petitioner seeks to take support to contend that violation of the statute would result in vitiation of the impugned order is unavailable, unacceptable and is to be rejected.&nbsp;</b></p><p><b>16. The fourth contention of the learned counsel appearing for the petitioner is with regard to violation of the mandate of completion of proceedings within 60 days from its initiation. It is not in dispute that the&nbsp; entire globe is engulfed by the Pandemic COVID-19 and cannot be said that the Deputy Commissioner of Tumkuru was free from such a problem. Original&nbsp; records that&nbsp; are&nbsp; produced&nbsp; would&nbsp; indicate that ...Therefore, the mandate with regard to limitation cannot be pressed into service, in the case at hand, as statutory exception with regard to limitation was prevalent even where enactments mandated such limitation.&nbsp; Therefore,&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the said contention also deserves to be rejected in the peculiar facts and timing of the case.</b></p><p><b>17.<span style=\"white-space:pre\">	</span>The fifth contention is with regard to lack of opportunity to the petitioner at the hands of the Competent Authority in the proceedings. Again on a perusal of the proceedings it becomes clear that the petitioner did not seek to lead evidence or contend that an opportunity of proving her case otherwise should be granted. What could be gathered from the proceedings is that the petitioner herself opted to file written arguments. Both the parties to the case before the Deputy Commissioner filed their respective written arguments and based on such&nbsp; consideration,&nbsp; the Deputy Commissioner decided the issue. Even in the written arguments filed, there was no mention&nbsp; about any opportunity to be granted to the petitioner to lead evidence. Adequate opportunity is seen to have been granted in the proceedings.&nbsp;&nbsp;</b></p>', 'abab7c2e7b9d131048c18c44271bb515.jpg', 'afd8d9d5cd5272b4f179d6d3b39d5a95.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-13', 1, '', '', '2021-09-13 18:02:47', '2021-09-13 18:02:47');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1020, 'dhPjtXdTcD2dPj2oYPolrReFZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Compassionate appointment under the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules 1996. \'Dependent\' does NOT include divorced daughter. Supreme Court. ', '<p><b>The Director of Treasuries in Karnataka and another vs V. Somyashree</b></p><p><b>Civil Appeal 5122 of 2021 decided on 13 September 2021.</b></p><p><b>Justice M.R.Shah and Aniruddha Bose&nbsp;</b></p><p><b>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2020/2211/2211_2020_42_1502_29965_Judgement_13-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/2211/2211_2020_42_1502_29965_Judgement_13-Sep-2021.pdf</a></b></p><p><b>Feeling&nbsp; &nbsp;aggrieved&nbsp; &nbsp;and&nbsp; &nbsp;dissatisfied&nbsp; &nbsp;with&nbsp; &nbsp;the&nbsp; &nbsp;impugned Judgment and Order dated 17.12.2018 passed by the High Court&nbsp; &nbsp;of&nbsp; &nbsp;Karnataka&nbsp; &nbsp;at&nbsp; &nbsp;Bengaluru&nbsp; &nbsp;in&nbsp; &nbsp;Writ&nbsp; &nbsp;Petition No.5609/2017 by which the High Court has allowed the said Writ&nbsp; &nbsp;Petition&nbsp; &nbsp;preferred&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;respondent&nbsp; &nbsp;herein&nbsp; &nbsp;and&nbsp; &nbsp;has quashed and set aside the order dated 09.12.2015 passed by the&nbsp; &nbsp;Karnataka&nbsp; &nbsp;State&nbsp; &nbsp;Administrative&nbsp; Tribunal,&nbsp; &nbsp;Bengaluru&nbsp; &nbsp;in Application No.6396 of 2015 and consequently has directed the&nbsp; &nbsp;appellants&nbsp; &nbsp;herein&nbsp; &nbsp;to&nbsp; &nbsp;consider&nbsp; &nbsp;the&nbsp; &nbsp;application&nbsp; &nbsp;of&nbsp; &nbsp;the respondent&nbsp; &nbsp;herein&nbsp; &nbsp;–&nbsp; &nbsp;original&nbsp; &nbsp;writ&nbsp; &nbsp;petitioner&nbsp; &nbsp;(hereinafter referred to as ‘original petitioner’) for grant of compassionate appointment,&nbsp; &nbsp;the&nbsp; &nbsp;original&nbsp; &nbsp;respondent&nbsp; &nbsp;has&nbsp; &nbsp;preferred&nbsp; &nbsp;the present appeal.<br></b></p><p><b>8.1 From&nbsp; &nbsp;the&nbsp; &nbsp;aforesaid&nbsp; &nbsp;rules&nbsp; &nbsp;it&nbsp; &nbsp;can&nbsp; &nbsp;be&nbsp; &nbsp;seen&nbsp; &nbsp;that&nbsp; &nbsp;only ‘unmarried&nbsp; &nbsp;daughter’&nbsp; &nbsp;and&nbsp; &nbsp;‘widowed&nbsp; &nbsp;daughter’ who&nbsp; &nbsp;were dependent upon the deceased female Government servant at the time of her death and living with her can be said to be ‘dependent’ of a deceased Government servant and that ‘an unmarried daughter’ and ‘widowed daughter’ only can be said to be eligible for appointment on compassionate ground in the case of death of the female Government servant.&nbsp; Rule 2 and Rule&nbsp; &nbsp;3&nbsp; &nbsp;reproduced&nbsp; &nbsp;hereinabove&nbsp; &nbsp;do&nbsp; &nbsp;not&nbsp; &nbsp;include&nbsp; &nbsp;‘divorced&nbsp;&nbsp;</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>daughter’&nbsp; as&nbsp; eligible&nbsp; &nbsp;for&nbsp; appointment&nbsp; &nbsp;on&nbsp; &nbsp;compassionate ground and even as ‘dependent’.&nbsp; As observed hereinabove and even as held by this Court in the case of&nbsp; N.C.&nbsp; &nbsp;Santhosh (Supra),&nbsp; the norms prevailing on the date of consideration of the application should be the basis of consideration of claim for compassionate appointment.&nbsp; The word ‘divorced daughter’ has&nbsp; been&nbsp; &nbsp;added&nbsp; &nbsp;subsequently&nbsp; &nbsp;by&nbsp; &nbsp;Amendment,&nbsp; &nbsp;2021. Therefore, at the relevant time when the deceased employee died and when the original writ petitioner – respondent herein made&nbsp; &nbsp;an&nbsp; &nbsp;application for appointment on compassionate ground&nbsp; &nbsp;the&nbsp; &nbsp;‘divorced&nbsp; &nbsp;daughter’&nbsp; &nbsp;were&nbsp; &nbsp;not&nbsp; &nbsp;eligible&nbsp; &nbsp;for appointment on compassionate ground and the ‘divorced daughter’ was not within the definition of ‘dependent.’&nbsp;</b></span></p><div><b>9. In view of the above and for the reasons stated above, the appeal succeeds. The impugned common judgment and order 17 passed by the High Court in Writ Petition No.5609/2017 is hereby quashed and set aside. The Writ Petition before the High Court is dismissed accordingly. However, there shall be no order as to costs.</b><br></div>', '49c9e1a9140aacef19087b1d469430a1.JPG', '7193600a2187fefd599992796af7cc4e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-13', 1, '', '', '2021-09-14 00:23:43', '2021-09-14 00:23:43'),
(1021, 'LJElh5Zin5yCm8aey3e2fprNd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Appeal against conviction is not continuation of the prosecution. Victim has no right to be impleaded in such appeal and be heard on suspension of sentence. Karnataka High Court. ', '<p><b>Rajeshwari Shetty vs State of Karnataka&nbsp;</b></p><p><b>Criminal Appeal 1003 of 2021 decided on 23 August 2021.</b></p><p><b>Judgment Link:&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405742/1/CRLA996-21-23-08-2021.pdf\" target=\"_blank\">&nbsp;http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405742/1/CRLA996-21-23-08-2021.pdf</a></b></p><p><b>Justice G. Narendar and Justice M.I. Arun.&nbsp;</b></p><p><b>26. It is the case of the applicant, who is none other than the de-facto complainant and mother of the deceased that the appeal being a continuation of the prosecution, the applicant is entitled to be heard in the appeal, including on the application preferred under Section 389 of the Cr.P.C. praying to suspend the sentence and enlarge the appellants on bail. It is vehemently contended by the learned Senior counsels on behalf of the applicant that in the light of insertion of the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Proviso to Section 24 of the Cr.P.C., the applicants are entitled to be heard and the Advocate engaged by the victim is deemed to be a Public Prosecutor. It is the case of the applicants that in view of provisions of Section 24&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(8) of the Cr.P.C., the applicants are required to be heard before any orders are passed on the application preferred by the appellants under Section 389 of the Cr.P.C.</b></p><p><b>27. As noted in the foregoing paragraphs, this Court has been taken through various rulings including ruling rendered by the Division Bench of the Allahabad High Court. The rulings rendered by the Allahabad High Court has no doubt permitted the victim be heard on the short term bail application preferred by the convict. It is also relevant to note that having heard the victim it was pleased to allow the application of the accused.&nbsp;</b></p><p><b>28. The point that arises for consideration is, whether the appeal by an accused, who has been convicted by a judgment and sentenced can be construed as a continuation of the “prosecution” of the accused ?</b></p><p><b>29. To determine this issue, it is necessary to appreciate the word “prosecution” and “prosecutor”. The word “prosecution” has been defined as a criminal action or proceeding before a Court of law to determine the&nbsp; &nbsp;guilt or innocence of a person charged to trial. The distinction between the words “to prosecute“ and “prosecution” can be gainfully stated to mean “to set the law in motion” and as a successful conclusion of the proceedings by determining the guilt or innocence of the person charged with a crime”. In effect, the process of “prosecution” or the proceedings would conclude with the proclamation of guilt or innocence of the person charged with a crime. This conclusion can also be inferred by the very arrangement of the provisions under the Code.</b></p><p><b>30. As could be seen Section 24 is placed in Chapter II which deals with the Constitution of the criminal courts and its offices, whereas the right&nbsp; to&nbsp; appeal and the right of the convict to seek suspension of sentence are placed in Chapter XXIX. If it was the intendment of the law makers that the application of a convict to have himself released on bail was to be treated as an application by any other person the&nbsp; same could have been provided under Chapter XXXIII. On the contrary the right of a convict to seek such suspension of sentence has been placed in Chapter XXIX as a separate provision and the provision has an&nbsp; interesting&nbsp; aspect. The first proviso to Section 389 (1) came to be inserted&nbsp; by Act 25 of 2005. It places certain fetters on the Appellate Court, whereby in respect of appeals where the convict has been sentenced to death or sentenced to life or imprisonment for not less than 10 years then such application can be considered only after providing an opportunity to the public prosecutor to show cause&nbsp; against the application in writing. Thus, the provision is a standalone provision.</b></p><p><b>32. One of the earliest reported judgments of the Hon’ble Apex Court is in the case of M.V. Joshi v. M.U. Shimpi and another reported in AIR 1961 SC 1494&nbsp;</b></p><p><b>38. The words assist the prosecution occurring in proviso to Section 24(8) have to be construed in such a manner that the principles of liberal interpretation or purposive construction cannot be adopted as such an approach is likely to jeoparadise the solemn and constitutionally guaranteed rights of the accused and it does not require much to turn a “prosecution” into a “persecution”. The law makers have&nbsp; been&nbsp; categorical with the rights that they intended to confer upon&nbsp; a&nbsp; victim. The very use of the word “assist” the prosecution would clearly demonstrate that the law makers did not intend to confer any independent role to the advocate or pleader representing the victim. That apart the sanctity&nbsp; &nbsp;of Chapter XXIV has also been considered by the constitutional bench in the case of Hardeep Singh vs. State of Punjab and others reported in (2014) 3 SCC</b></p><p><b>92 wherein the constitutional bench has gone into and considered the aspects of trial, enquiry, etc., Hence we&nbsp; are unable to accept the case of the applicants.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">XXIX. The proviso to Section 372 came to be inserted by Act 5 of 2009. Under the proviso, a right to appeal has been conferred on the victim. Even the said right is not conferred absolutely, but is a restricted one. The proviso permits or enables the victim to prefer an appeal in&nbsp; certain circumstances i.e., one in the event of accused being acquitted or in the event of&nbsp; accused&nbsp; being convicted for a lesser offence or imposing inadequate compensation. Inadequacy of sentence has not been provided as a ground enabling the victim to prefer an appeal. Thus, is this limited right under the proviso to Section 372 and the words “assist the prosecution” occurring in the proviso to Section 24(8) are juxtaposed with the words “certain rights” used in paragraph 2 of the statement of objects and reasons of the amending act 5&nbsp; of 2009, it becomes clear that the intent of the law makers was only to confer a limited right on the victim.</b></p><p><b>40. Thus, if the statement of objects and reasons and the amendments by way of insertion to Section 24(8) and Section 372 are read conjunctively, it is crystal clear and there is no ambiguity to state that the construction can be placed.&nbsp; It is pertinent and relevant&nbsp; &nbsp;to note that the long list of rulings relied upon by the parties do not reveal the consideration of the insertion of the proviso to Section 372 and its impact. In that view&nbsp; the rulings relied upon by the appellant will not be of any assistance to the applicant.</b></p><p><b>41.Thus, on a plain reading the only conclusion&nbsp; we can draw is that the victims have been conferred with specific rights only i.e., either to assist the prosecution before the trial Court and to prefer an appeal only in specific grounds before the appellate Court. It is relevant to note that proviso to Section 372 and&nbsp; proviso&nbsp; to Section&nbsp; 24(8) have been introduced under&nbsp; Amending Act</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5 of 2009. If it was the intention of the legislature to confer a wider or enlarged right on the victims the law makers would certainly have stated so. The law makers having&nbsp; consciously decided to insert&nbsp; the&nbsp; &nbsp;provisos&nbsp; to&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 24(8) and Section 372, it cannot be gainfully argued that the intendment of the legislature was otherwise, or that a wider construction ought to be given to the said amendments so as to bring the appeals preferred against judgment of conviction and the accompanying application under Section 389 within their ambit.</b></p><p><b>43. The word “prosecution” as defined clearly indicates the stage upto and culminating with a proclamation of the guilt or innocence of the person charged with the crime. If that be the definition&nbsp; and if&nbsp; the guilt of a person has been proclaimed and such&nbsp; convict prefers an appeal it can by no stretch of imagination can be construed as a continuation of the “prosecution”. With the proclamation of guilt there is a conclusion and a transformation in the status of the party sets in and the guilty is transposed from the status of an accused to a status of a convict and hence the contention that the appeal by a convict is a continuation of the prosecution is unacceptable.</b></p><p><b>45. The arguments that the pleader or advocate of the victim has to be equated with that of a public prosecutor, if accepted can cause tremors in the justice dispensation system and become a spoke in the wheel of the justice delivery system.&nbsp;</b></p><p><b>46. In the light of the above observations coupled with the observations in Rekha Murarka’s case we have&nbsp; no hesitation in holding that the code of Criminal Procedure Chapter XXIX does not confer any right on the victim to seek impleadment in an appeal preferred by the convict. Section 389 of the Code of Criminal Procedure placed in Chapter XXIX does not confer any right of audience on victim in and during the consideration of the application for suspension of sentence in an appealpreferred by the convict. We hold that the right to assist the prosecution under 24(8) is not available to the victim in an appeal by convict under Chapter XXIX.</b></p><p><b><br></b></p><p><br></p>', '39d2e58160bc4aec41a8824c5adf991e.JPG', '9f6f86ebb14cc318d68b93b066018527.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-14', 1, '', '', '2021-09-15 00:30:19', '2021-09-15 00:34:58'),
(1022, 'er3hpR39PNwJDf27nLMZXq2oc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Application for Maintenance. Filing false Affidavit of Disclosure of Assets and Liabilities is a serious issue. Trial court can not defer consideration of perjury issue and must decide it at the earliest. Karnataka High Court. ', '<p><b>Dr. Praveen R vs Dr. Arpitha<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Writ Petition 19448 of 2015 decided on 31 August 2021.&nbsp;<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405743/1/WP19448-15-31-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405743/1/WP19448-15-31-08-2021.pdf</a></b></p><p><b>The tone for this judgment may be set by what Shakespeare said in Richard III about perjury; the relevant stanza runs as under:</b></p><p><i><b>\"My conscience hath a thousand several tongues, And every tongue brings in a several tale,&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and ever tale condemns me for a villain. Perjury, Perjury in the highest degree; Murther, in the direst degree;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">All several sins, all us\'d in each degree. throng to the bar, crying all \"Guilty, guilty!.\"</b></i></p><p><b>The following anguish expressed by the Hon\'ble Supreme Court in Swarna Singh vs. State of Punjab (2000) 5 SCC 668 about rampant perjury in courts merit a mention:</b></p><p><b><i>\"Perjury has also become a way of life in the Law Courts. A trial Judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him...\"</i></b></p><p><b>d) Under the Indian Penal Code, offences relating to false evidence and against administration of justice are dealt with in Chapter XI; Lord Macaulay as the first Chairman of Law Commission of India in his report has stated:</b></p><p><b><i>\"Giving of false evidence must always be&nbsp; a&nbsp; grave&nbsp; offence. But few points in penal legislation seems to us clearer than that the law ought to make a distinction between that kind of false&nbsp; evidence&nbsp; which&nbsp; produces great evils and that kind of false evidence&nbsp; which&nbsp; produces comparatively slight evils.... As the ordinary punishment for&nbsp; false&nbsp; evidence,&nbsp; we propose imprisonment for a term of not more than seven years, nor less than one year...\".</i></b></p><p><b>The Privy Council about a century ago had criticized that perjury&nbsp; was being committed in Indian Courts day in &amp; day out; the Apex Court too echoed the same concern in Re Suo moto Proceedings (2001) 5 SCC 289</b></p><p><b>That being the position, the learned trial Judge ought to have considered petitioner\'s subject application with&nbsp; due&nbsp; seriousness&nbsp; and at the earliest point of time, there being no justification for deferring its consideration since it touched purity of judicial proceedings.</b></p><p><b>In the above circumstances, this writ petition succeeds; impugned order is set at naught; matter is remitted for&nbsp; consideration afresh; till such consideration takes place, the main matter shall be parked at a bay.</b></p><p><b>All contentions are kept open. Costs made easy.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '5ee64d374a0f844488fa38eb58d41d31.jpg', 'ab01f138a6e12b2199792303410a7727.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-14', 1, '', '', '2021-09-15 01:03:19', '2021-09-15 01:03:19'),
(1023, 'QaIaLATrzgatdf5logiyJXdUe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. To constitute criminal breach of trust, there must be \'entrustment of property\'. Joint Development Agreement between owner and developer is not \'entrustment of property\' to attract criminal breach of trust. Karnataka High Court.   ', '<p><span style=\"font-weight: bolder;\">Nitesh Shetty and another vs State of Karnataka and another <br></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Criminal Petition 8029 of 2021 decided on 26 August 2021</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405744/1/CRLP8029-17-26-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405744/1/CRLP8029-17-26-08-2021.pdf</a></b></p><p><b>Petitioners, who are accused Nos. 1 and 2 call in question proceedings initiated by respondent No.2 in Crime No.254 of 2017 pending on the file of the Additional Chief Judicial Magistrate, Bangalore Rural District, Bangalore.</b></p><p><b>4. After the complainant seeking arbitration and this Court appointing the Arbitrator to arbitrate upon the dispute between the parties, the said  Arbitrator commenced proceedings on 23.03.2017. After participating in arbitration proceedings,  the complainant registers a complaint on 08.09.2017 alleging that the acts of petitioners amounted to  violation and breach of Joint Development Agreement, which is a criminal breach of trust and cheating for having misappropriated certain funds. The complaint resulted in registration of an FIR against the petitioners for offences punishable under Sections 406 and 420 of the IPC. On issuance of summons, the petitioners, who are accused Nos.1 and 2 in Crime No.254 of 2017 are before this Court in the present criminal petition calling in question initiation of such proceedings.</b></p><p><b>11. It is not in dispute that Joint Development Agreement was entered into between petitioners and the 2nd respondent/complainant. The Joint Development Agreement was finalized between the parties on 18-06-2014. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">If the complaint extracted hereinabove is juxtaposed with that of the issues that fell for consideration before the Arbitrator, it would clearly indicate that the complaint is verbatim similar except giving it a colour of crime. The only other factor narrated in the complaint with regard to petitioners is that, they and their cohorts are indulging in conspiracy to cheat the complainant and therefore, would become liable for punishment under Sections 406 and 420 of IPC. Therefore, it was a clear case of the complainant giving a proceeding which is purely civil in nature, a colour of crime more so, in the light of the fact that the complainant himself sought appointment of Arbitrator  to resolve the dispute between the parties.</b></p><p><b>20. In the light of the afore-narrated facts and documents, it is clear that the complainant is seeking to give a colour of crime to a purely civil transaction as the dispute arose with regard to Joint Development Agreement, the dispute having been referred to a sole Arbitrator, the Arbitrator having passed an Award (supra), wherein the rights of the complainant is protected and counterclaim of the petitioners is rejected. The rejection of counter-claim of the petitioners challenged by the petitioners is pending adjudication before the competent civil Court and the complainant has not chosen to challenge the award of the Arbitrator even as on date. With all these factors it cannot but be concluded that criminal law is set in motion though the dispute has been purely civil in nature.</b></p><p><b>Section 406 of IPC deals with criminal breach of trust as found in Section 405 of IPC. For an offence for criminal breach of trust, there should be entrustment, there is no such entrustment of any kind made by the complainant into the hands of the petitioners. Both of them are  parties to a mutually agreed Joint Development Agreement. Section 420 of IPC deals with cheating as found in Section 415 of IPC, which would mean that the accused should have an intention  to  cheat at the outset, beginning of any  transaction  and the victim should be induced into such an act by the accused with an intention to cheat. </b></p><p><b>22. In view of the preceding analysis, this is a classic case, where civil proceedings which are admittedly initiated by the complainant are given a cloak of crime. In the light of what is held by the Apex Court, if criminal proceedings are permitted to continue, it would undoubtedly degenerate into a weapon of harassment and to avoid such abuse of the process of law, which would result in miscarriage of justice, this Court has to  exercise  its  jurisdiction under Section 482 of the Cr.P.C., to quash such proceedings.</b></p><p><b>This criminal petition is allowed.</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'bfd653d4243207c570c9cfa4e932fb79.jpg', '73c36bc2f87a9c7c5f054ce417df3c69.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-14', 1, '', '', '2021-09-15 01:51:35', '2021-09-15 01:53:59'),
(1024, 'OJ1I88ten4k9BbbDIHaKDz6ZK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Insolvency and Bankruptcy Code, 2016. Section 61(2). Appellate Tribunal has NO jurisdiction to condone delay in filing appeal beyond statutory period of 45 days. Supreme Court. ', '<p><b>National Spot Exchange Limited vs <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Anil Kohli, Resolution Professional for Dunar Foods Limited <br>Civil Appeal 6187 of 2019 decided on 14 September 2021<br>Justice </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">M.R. Shah Justice Aniruddha Bose<br></span></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/27666/27666_2019_13_1501_30086_Judgement_14-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/27666/27666_2019_13_1501_30086_Judgement_14-Sep-2021.pdf</a></b></p><p><b>7.....At the outset, it is required to be noted that the appellant herein\r\nhas challenged the order passed by the adjudicating authority dated\r\n6.3.2019 affirming the decision of the resolution professional of rejection\r\nof the claim of the appellant before the NCLAT. The appeal preferred\r\nbefore the NCLAT was under Section 61(2) of the IB Code. As per\r\nSection 61(2) of the IB Code, the appeal was required to be preferred\r\nwithin a period of thirty days. Therefore, the limitation period prescribed\r\nto prefer an appeal was 30 days. However, as per the proviso to Section\r\n61(2) of the Code, the Appellate Tribunal may allow an appeal to be filed\r\nafter the expiry of the said period of 30 days if it is satisfied that there\r\nwas sufficient cause for not filing the appeal, but such period shall not\r\nexceed 15 days. Therefore, the Appellate Tribunal has no jurisdiction at\r\nall to condone the delay exceeding 15 days from the period of 30 days,\r\nas contemplated under Section 61(2) of the IB Code. </b></p><p><b>8. An identical question came to be considered by this Court in the\r\ncase of Popular Construction Co. (supra). While considering Section 34\r\nof the Arbitration and Conciliation Act, 1996 which provided that an\r\napplication for setting aside of the award cannot be made after three\r\nmonths and it further provided that if the court is satisfied that the\r\napplicant was prevented by sufficient cause from making an application\r\nwithin the said period of three months, it may entertain the application\r\nwithin a further period of thirty days, but not thereafter, after considering\r\nSection 29 (2) of the Limitation Act and after observing that “Arbitration &\r\nConciliation Act, 1996 is a special law” and that Section 34 of the Arbitration & Conciliation Act, 1996 provides for a period of limitation\r\ndifferent from that prescribed under the Limitation Act, ultimately this\r\nCourt held that Section 5 of the Limitation Act shall not be applicable as\r\nthe legislature has prescribed a special limitation for the purpose of the\r\nappeal as provided under Section 34 of the Arbitration & Conciliation Act,\r\n1996.</b></p><p><b>12. In view of the afore-stated settled proposition of law and even\r\nconsidering the fact that even the certified copy of the order passed by\r\nthe adjudicating authority was applied beyond the period of 30 days and\r\nas observed hereinabove there was a delay of 44 days in preferring the\r\nappeal which was beyond the period of 15 days which maximum could\r\nhave been condoned and in view of specific statutory provision\r\ncontained in Section 61(2) of the IB Code, it cannot be said that the\r\nNCLAT has committed any error in dismissing the appeal on the ground\r\nof limitation by observing that it has no jurisdiction and/or power to\r\ncondone the delay exceeding 15 days.\r\n</b></p><p><b>13. In view of the above and for the reasons stated above, no\r\ninterference of this Court is called for. The present appeal fails and\r\ndeserves to be dismissed and is accordingly dismissed. However, in the\r\nfacts and circumstances of the case, there shall be no order as to costs.<br></b></p><p> <b><br></b></p>', '663ed507aecbafb8c0808fd26fb05509.JPG', '9e154f338bfa7fbec4b08010b88c597c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-14', 1, '', '', '2021-09-15 02:47:03', '2021-09-15 02:48:03'),
(1025, 'pVHAQ8GAGe65dXB2JNaxgYeL6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act, 1996. Bar under Section 9(3) against grant of interim measures by court does NOT apply if the application was already entertained before constitution of the arbitration Tribunal. Supreme Court. ', '<p><b>Arcelor Mittal Nippon Steel India Ltd vs Essar Bulk Terminal Ltd <br>Civil Appeal 5700 of 2921 decided on 14 September 2021<br>Justice Indira Banerjee and Justice J.K. Maheshwari.<br>Judgment Link: <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"https://main.sci.gov.in/supremecourt/2021/19847/19847_2021_8_1501_29979_Judgement_14-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/19847/19847_2021_8_1501_29979_Judgement_14-Sep-2021.pdf</a></span></b></p><p><b>68. With the law as it stands today, the Arbitral Tribunal has the\r\nsame power to grant interim relief as the Court and the remedy under\r\nSection 17 is as efficacious as the remedy under Section 9(1). There\r\nis, therefore, no reason why the Court should continue to take up\r\napplications for interim relief, once the Arbitral Tribunal is constituted\r\nand is in seisin of the dispute between the parties, unless there is  some impediment in approaching the Arbitral Tribunal, or the interim\r\nrelief sought cannot expeditiously be obtained from the Arbitral\r\nTribunal.</b></p><p><b> 107. It is reiterated that Section 9(1) enables the parties to an\r\narbitration agreement to approach the appropriate Court for interim\r\nmeasures before the commencement of arbitral proceedings, during\r\narbitral proceedings or at any time after the making of an arbitral\r\naward but before it is enforced and in accordance with Section 36 of\r\nthe Arbitration Act. The bar of Section 9(3) operates where the\r\napplication under Section 9(1) had not been entertained till the\r\nconstitution of the Arbitral Tribunal. Ofcourse it hardly need be\r\nmentioned that even if an application under Section 9 had been\r\nentertained before the constitution of the Tribunal, the Court always\r\nhas the discretion to direct the parties to approach the Arbitral\r\nTribunal, if necessary by passing a limited order of interim protection, particularly when there has been a long time gap between hearings\r\nand the application has for all practical purposes, to be heard afresh,\r\nor the hearing has just commenced and is likely to consume a lot of\r\ntime. In this case, the High Court has rightly directed the Commercial\r\nCourt to proceed to complete the adjudication. </b><br></p>', 'b29df5357a5dfe0c8d5ecec060f6c3b9.jpeg', 'bafb9d26435641e7753482fa85c92545.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-14', 1, '', '', '2021-09-15 03:15:15', '2021-09-15 03:16:08'),
(1026, 'gJkxOZptq2eZK7EDTC7WnvnBo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Demolition of property tenanted under Rent Act. Tenant cannot resort to Transfer of Property Act for re-possession. Remedy, if any, is under the Rent Act. Supreme Court.   ', '<p><b>Abdul Khuddus vs H.M. Chaniramani by lrs. <br>Civil Appeal 1833 of 2008 decided on 14 September 2021.<br>Justice Hemant Gupta and Justice A.S. Bopanna </b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2006/31153/31153_2006_11_1501_30113_Judgement_14-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2006/31153/31153_2006_11_1501_30113_Judgement_14-Sep-2021.pdf</a><br></b></p><p><b>25. A Seven Judge Bench in the judgment reported as V.\r\nDhanpal Chettiar v. Yesodai Ammal  (1979) 4 SCC 214 was examining a\r\nquestion as to whether a statutory tenant is entitled to notice\r\nof termination of tenancy contemplated by Section 106 of the\r\nTP Act or not. It was held that since statutory tenant is\r\nentitled to protection under the Rent Act, therefore, the\r\nprocedure prescribed under the TP Act would not be\r\napplicable. The Court held as under: </b></p><p><b><i>“5. ….The subject being in the concurrent list, many\r\nState Rent Acts have by necessary implication and\r\nmany of them by starting certain provisions with a\r\nnon-obstante clause have done away with the law\r\nengrafted in Section 108 of the Transfer of Property\r\nAct except in regard to any matter which is not\r\nprovided for in the State Act either expressly or by\r\nnecessary implication.</i></b></p><p><b><i>13. ...The notice does not bring to an end such a\r\nrelationship because of the protection given to the\r\ntenant under the Rent Act. If that be so then it is not\r\nnecessary for the landlord to terminate the\r\ncontractual relationship to obtain possession of the\r\npremises for evicting the tenant. If the termination of\r\nthe contractual tenancy by notice does not, because\r\nof the Rent Act provisions, entitle the landlord to\r\nrecover possession and he becomes entitled only if he\r\nmakes out a case under the special provision of the\r\nState Rent Act, then, in our opinion, termination of the contractual relationship by a notice is not necessary.\r\nThe termination comes into effect when a case is\r\nsuccessfully made out for eviction of the tenant under\r\nthe State Rent Act. We say with utmost respect that\r\non the point of requirement of a notice under Section\r\n106 of the Transfer of Property Act Mangilal case [AIR\r\n1965 SC 101: (1964) 5 SCR 239] was not correctly\r\ndecided. </i></b></p><p><b><i>16. …Even if the lease is determined by a forfeiture\r\nunder the Transfer of Property Act the tenant\r\ncontinues to be a tenant, that is to say, there is no\r\nforfeiture in the eye of law. The tenant becomes liable\r\nto be evicted and forfeiture comes into play only if he\r\nhas incurred the liability to be evicted under the State\r\nRent Act, not otherwise. In many State statutes\r\ndifferent provisions have been made as to the grounds\r\non which a tenant can be evicted and in relation to his\r\nincurring the liability to be so evicted. Some\r\nprovisions overlap those of the Transfer of Property\r\nAct. Some are new which are mostly in favour of the\r\ntenants but some are in favour of the landlord also.\r\nThat being so the dictum of this Court in Raj Brij case\r\n[AIR 1951 SC 115: 1951 SCR 145: 1951 SCJ 238]\r\ncomes into play and one has to look to the provisions\r\nof law contained in the four-corners of any State Rent\r\nAct to find out whether a tenant can be evicted or not.\r\nThe theory of double protection or additional\r\nprotection, it seems to us, has been stretched too far\r\nand without a proper and due consideration of all its\r\nramifications.</i></b></p><p><b><i>18. .…If we were to agree with the view that\r\ndetermination of lease in accordance with the Transfer\r\nof Property Act is a condition precedent to the starting\r\nof a proceeding under the State Rent Act for eviction\r\nof the tenant, we could have said so with respect that\r\nthe view expressed in the above passage is quite\r\ncorrect because there was no question of\r\ndetermination of the lease again once it was\r\ndetermined by efflux of time. But on the first\r\nassumption we have taken a different view of the\r\nmatter and have come to the conclusion that\r\ndetermination of a lease in accordance with the\r\nTransfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction\r\nof the tenant even after such determination. The\r\ntenant continues to be so even thereafter. That being\r\nso, making out a case under the Rent Act for eviction\r\nof the tenant by itself is sufficient and it is not\r\nobligatory to found the proceeding on the basis of the\r\ndetermination of the lease by issue of notice in\r\naccordance with Section 106 of the Transfer of\r\nProperty Act.”</i></b></p><p><b>26.In a later judgment reported as Pradesh Kumar Bajpai v.\r\nBinod Behari Sarkar (Dead) by Lrs.\r\n12\r\n, a three Judge Bench\r\nof this Court was examining the claim of tenant with respect\r\nto right to pay arrears of rent in terms of Section 114 of the\r\nTP Act. The following argument was examined:</b></p><p><b><i>“9. …….The only question that arises and which\r\nwas seriously contended for on behalf of the\r\nrespondent is that in addition to the safeguards\r\nprovided to the tenant under the Act, he is also\r\nentitled to the benefits of Section 114 of the Transfer\r\nof Property Act. Section 3 of the U.P. (Temporary)\r\nControl of Rent and Eviction Act 3 of 1947 restricts the\r\nrights of the landlord to have the tenant evicted. But\r\nfor the statutory provisions, the landlord would be\r\nentitled to evict the tenant according to the terms of\r\nthe contract or the provisions of the Transfer of\r\nProperty Act. As the Rent Act has restricted the power\r\nof the landlord to evict the tenant except in\r\naccordance with the provisions of the Act, the terms of\r\nthe contract and the provisions of the Transfer of\r\nProperty Act to that extent are no longer applicable.”</i></b></p><p><b>27. The question raised on the basis of the argument of the\r\ntenant was found to be without any substance that he was\r\nentitled to double protection under the Rent Act and under\r\nthe TP Act. </b></p><p><b>31. In view of the binding decisions of the larger bench and\r\nkeeping in view the fact that the judgment of this Court in\r\nShaha Ratansi Khimji was dealing with the rights of\r\ncontractual tenant, the statutory tenant cannot seek\r\nrepossession after the demolition of building under Section\r\n108(B)(e) of the TP Act as the rights and liabilities of a\r\nstatutory tenant have to be found under the Rent Act alone. <br></b></p><p>\r\n<b><br></b></p><p><br></p>', 'e82e5054a30e8b1683557c7cb3f6e4f2.JPG', '73d9362262ce245dda2bc24d3bfd87ba.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-15', 1, '', '', '2021-09-15 17:10:27', '2021-09-15 17:12:12'),
(1027, 'ykotspw3ZWW7jrTBIvUjisN9T', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Commercial suits. Production of additional documents. Requirement to establish reasonable cause for non disclosure of documents along with the plaint does not apply if documents are found subsequent to filing of suit. Supreme Court.  ', '<p><b>Sudhir Kumar @ S. Baliyan vs Vinay Kumar G.B.&nbsp;<br>Civil Appeal 5620 of 2021 decided on 15 September 2021.&nbsp;<br>Justice M.R. Shah and Justice Aniruddha Bose&nbsp;<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/17983/17983_2021_13_1501_30075_Judgement_15-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/17983/17983_2021_13_1501_30075_Judgement_15-Sep-2021.pdf</a></span></b></p><p><b>7.3 It is true that Order XI Rule 1 of the CPC as applicable to the commercial suits&nbsp; brought&nbsp; about a radical change&nbsp; and&nbsp; it mandates&nbsp; the plaintiff to file a list of all documents, photocopies of all documents, in its power, possession, control or custody, pertaining to the suit, along with the plaint and a procedure provided under Order XI Rule 1 is required to be followed by the plaintiff and the defendant, when the suit is the commercial suit. ....</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Order XI Rule 1 (3) provides that the plaint shall contain a declaration on oath from the plaintiff that all documents in the power, possession, control or custody of the plaintiff, pertaining to the facts and circumstances of the proceeding initiated by him have been disclosed and copies thereof annexed with the plaint, and that the plaintiff does not have other documents in its power, possession, control or custody.&nbsp; &nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Therefore as such it is mandated by Order XI Rule 1 for the plaintiff to disclose and produce all the documents in his power, possession, control or&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">custody,&nbsp; &nbsp;pertaining&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;facts&nbsp; &nbsp;and&nbsp; &nbsp;circumstances&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">proceedings.&nbsp;</b></p><p><b>7.4 However,&nbsp; &nbsp;the&nbsp; &nbsp;additional&nbsp; &nbsp;documents&nbsp; &nbsp;can&nbsp; &nbsp;be&nbsp; &nbsp;permitted&nbsp; &nbsp;to&nbsp; &nbsp;be&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">bought on record with the leave of the court as provided in</b></p><p><b>Order XI Rule 1 (4). Order XI Rule 1 (4) provides that in case of</b></p><p><b>urgent filings, the plaintiff may seek leave to rely on additional</b></p><p><b>documents&nbsp; &nbsp;as&nbsp; &nbsp;part&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;above&nbsp; &nbsp;declaration&nbsp; &nbsp;on&nbsp; &nbsp;oath&nbsp; &nbsp;[as</b></p><p><b>provided under Order 11 Rule 1 (3)] and subject to grant of</b></p><p><b>such&nbsp; &nbsp;leave&nbsp; &nbsp;by&nbsp; &nbsp;Court,&nbsp; &nbsp;the&nbsp; &nbsp;plaintiff&nbsp; &nbsp;shall&nbsp; &nbsp;file&nbsp; &nbsp;such&nbsp; &nbsp;additional</b></p><p><b>documents in Court, within thirty days of filing the suit, along</b></p><p><b>with a declaration on oath that the plaintiff has produced all</b></p><p><b>documents&nbsp; &nbsp;in&nbsp; &nbsp;its&nbsp; &nbsp;power,&nbsp; &nbsp;possession,&nbsp; &nbsp;control&nbsp; &nbsp;or&nbsp; &nbsp;custody,</b></p><p><b>pertaining to the facts and circumstances of the proceedings</b></p><p><b>initiated by the plaintiff and that the plaintiff does not have any</b></p><p><b>other documents, in its power, possession, control or custody.</b></p><p><b><br></b></p><p><b>7.5 Order XI Rule 1 (5) further provides that the plaintiff shall not</b></p><p><b>be allowed to rely on documents, which were in the plaintiff’s power, possession, control or custody and not disclosed along</b></p><p><b>with plaint or within the extended period set out above, save</b></p><p><b>and except by leave of Court and such leave shall be granted</b></p><p><b>only upon the plaintiff establishing reasonable cause for non</b></p><p><b>disclosure along with the plaint. Therefore on combined reading</b></p><p><b>of Order XI Rule 1 (4) read with Order XI Rule 1 (5), it emerges</b></p><p><b>that (i) in case of urgent filings the plaintiff may seek leave to</b></p><p><b>rely on additional documents; (ii) within thirty days of filing of</b></p><p><b>the suit; (iii) making out a reasonable cause for non disclosure</b></p><p><b>along with plaint.&nbsp;</b></p><p><b>7.6 Therefore a further thirty days time is provided to the plaintiff</b></p><p><b>to place on record or file such additional documents in court</b></p><p><b>and a declaration on oath is required to be filed by the plaintiff</b></p><p><b>as was required as per Order XI Rule 1 (3) if for any reasonable</b></p><p><b>cause for non disclosure along with the plaint, the documents,</b></p><p><b>which&nbsp; &nbsp;were&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;plaintiff’s&nbsp; &nbsp;power,&nbsp; &nbsp;possession,&nbsp; &nbsp;control&nbsp; &nbsp;or</b></p><p><b>custody and not disclosed along with plaint. Therefore plaintiff</b></p><p><b>has&nbsp; &nbsp;to&nbsp; &nbsp;satisfy&nbsp; &nbsp;and&nbsp; &nbsp;establish&nbsp; &nbsp;a&nbsp; &nbsp;reasonable&nbsp; &nbsp;cause&nbsp; &nbsp;for&nbsp; &nbsp;non</b></p><p><b>disclosure along with plaint. However, at the same time, the requirement&nbsp; &nbsp;of&nbsp; &nbsp;establishing&nbsp; &nbsp;the&nbsp; &nbsp;reasonable&nbsp; &nbsp;cause&nbsp; &nbsp;for&nbsp; &nbsp;non</b></p><p><b>disclosure of the documents along with the plaint shall not be</b></p><p><b>applicable if it is averred and it is the case of the plaintiff that</b></p><p><b>those documents have been found subsequently and in fact</b></p><p><b>were not in the plaintiff’s power, possession, control or custody</b></p><p><b>at the time when the plaint was filed. Therefore Order XI Rule 1</b></p><p><b>(4) and Order XI Rule 1 (5) applicable to the commercial suit</b></p><p><b>shall be applicable only with respect to the documents which</b></p><p><b>were in plaintiff’s power, possession, control or custody and not</b></p><p><b>disclosed&nbsp; &nbsp;along&nbsp; &nbsp;with&nbsp; &nbsp;plaint.&nbsp; &nbsp; &nbsp;Therefore,&nbsp; &nbsp;the&nbsp; &nbsp;rigour&nbsp; &nbsp;of</b></p><p><b>establishing the reasonable cause in non disclosure along with</b></p><p><b>plaint&nbsp; &nbsp;may&nbsp; &nbsp;not&nbsp; &nbsp;arise&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;case&nbsp; &nbsp;where&nbsp; &nbsp;the&nbsp; &nbsp;additional</b></p><p><b>documents sought to be produced/relied upon are discovered</b></p><p><b>subsequent to the filing of the plaint.&nbsp;</b></p><p><b><br></b></p><p><b>9. In view of the above and for the reasons stated above, the</b></p><p><b>plaintiff can be permitted to rely on the documents in the form</b></p><p><b>of&nbsp; &nbsp;invoices&nbsp; &nbsp;as&nbsp; &nbsp;mentioned&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;application&nbsp; &nbsp;as&nbsp; &nbsp;additional</b></p><p><b>documents.&nbsp; &nbsp;However,&nbsp; &nbsp;such&nbsp; &nbsp;production&nbsp; &nbsp;shall&nbsp; &nbsp;not&nbsp; &nbsp;affect&nbsp; &nbsp;the</b></p><p><b>outcome&nbsp; &nbsp;of&nbsp; &nbsp;interim&nbsp; &nbsp;injunction&nbsp; &nbsp;application&nbsp; &nbsp;submitted&nbsp; &nbsp;under</b></p><p><b>Order XXXIX Rule 1 of the CPC, which as such is reported to be</b></p><p><b>kept for orders.</b></p><p><b><br></b></p><p><b>10. In view of the above and for the reasons stated above, the</b></p><p><b>present appeal is partly allowed. The impugned judgment and</b></p><p><b>order passed by the High Court confirming the order passed by the&nbsp; &nbsp;learned&nbsp; &nbsp;Commercial&nbsp; &nbsp;Court&nbsp; &nbsp;dismissing&nbsp; &nbsp;the&nbsp; &nbsp;application</b></p><p><b>submitted by the plaintiff to rely on/produce the documents</b></p><p><b>mentioned&nbsp; &nbsp;in&nbsp; &nbsp;application&nbsp; &nbsp;dated&nbsp; &nbsp;13.09.2019,&nbsp; &nbsp;as&nbsp; &nbsp;additional</b></p><p><b>documents is quashed and set aside to the extent not granting</b></p><p><b>leave&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;appellant&nbsp; &nbsp;herein&nbsp; &nbsp;–&nbsp; &nbsp;original&nbsp; &nbsp;plaintiff&nbsp; &nbsp;to&nbsp; &nbsp;rely</b></p><p><b>on/produce the invoices mentioned in the application dated</b></p><p><b>13.09.2019&nbsp; &nbsp;and&nbsp; &nbsp;consequently&nbsp; &nbsp;the&nbsp; &nbsp;leave&nbsp; &nbsp;is&nbsp; &nbsp;granted&nbsp; &nbsp;to&nbsp; &nbsp;the</b></p><p><b>appellant&nbsp; &nbsp;herein&nbsp; &nbsp;–&nbsp; &nbsp;original&nbsp; &nbsp;plaintiff&nbsp; &nbsp;to&nbsp; &nbsp;produce/rely&nbsp; &nbsp;on&nbsp; &nbsp;the</b></p><p><b>invoices mentioned in the application as additional documents.</b></p><p><b>Rest&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;order&nbsp; &nbsp;not&nbsp; &nbsp;granting&nbsp; &nbsp;leave&nbsp; &nbsp;to&nbsp; &nbsp;appellant&nbsp; &nbsp;herein&nbsp; &nbsp;–</b></p><p><b>original plaintiff to rely on/produce the documents other than</b></p><p><b>the invoices as observed hereinabove, as additional evidence is</b></p><p><b>hereby&nbsp; &nbsp;confirmed.&nbsp; &nbsp;The&nbsp; &nbsp;present&nbsp; &nbsp;appeal&nbsp; &nbsp;is&nbsp; &nbsp;accordingly&nbsp; &nbsp;partly</b></p><p></p><p><b>allowed to the aforesaid extent. No costs.</b></p><div><br></div><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></b></p><p><b><br></b></p><p><b><br></b><br></p>', '2cfb4affd8a12b8ab67e4dcb9465711a.jpeg', 'eb30f7fab3fdfd23b371f4e3c2e14527.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-15', 1, '', '', '2021-09-16 01:42:18', '2021-09-16 01:42:18');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1028, '7gppLN40t9EadEhFz7HpB96U0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Extortion by Police Officer during Covid times. Karnataka High Court quashes Criminal cases on consideration of cases on merits.   ', '<p><b>Prabhu Shankar vs State of Karnataka and others. <br>Criminal Petition 2470 of 2020 decided on 8 September 2021<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405921/1/CRLP2470-20-08-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405921/1/CRLP2470-20-08-09-2021.pdf</a></b></p><p><b>44. It is important to note that in these petitions first of all there is no complaint, as contended by the learned counsel for the petitioner. But the case is registered by respondent No.3 Dy.S.P., who is the complainant and he himself requested the XXIII Additional City Civil and Sessions Judge, Bengaluru and based on the said requisition made to the Court, case has been registered. The aggrieved persons have not given any complaint with regard to demand and acceptance and the same is only </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">registered by respondent No.3. The Apex Court in the judgment in the cases of Dashrath Singh Chauhan and P.Satyanarayana Murthy (supra), categorically held that the demand and acceptance sine qua non for initiating the proceedings under Section 7(a) and 13(a) of the P.C. Act and the same is missing in the case on hand except the requisition by the Investigating Officer. It is also important to note that this Court granted stay in respect of earlier cases registered for the offence punishable under Section 384 of IPC and subsequently these two cases are registered. It is the contention of the learned counsel for the petitioner that to overcome the interim orders granted by this Court earlier the cases have been registered. It is important to note that there is a delay in registering of the case and I have already pointed out that the incidents have been mentioned in the month of March and April, but the cases have been registered in the month of May 2020. No doubt, the principles laid down by the judgment referred by the learned counsel for the respondents in the case of P.P. Sharma (supra), the Apex Court has held that if the Court entertain the 482 petition for quashing of the registration of the FIR, the same amounts to killing a stillborn child born and at the same time it has to be noted that the said child should be born legally and not by creating documents with malice intention if a person is booked it amounts to illegitimate child. No doubt, the Investigating Officer should be allowed to unearth the crime as held in the case of Dineshbhai Chandubhai Patel (supra), but complaint should disclose the cognizable offence. But in the case on hand, no complaint at all except the requisition of the Investigating Officer and the child is born at the hands of the Investigating Officer with malafide intention. If the complaint is manifest of malafide intention, the Court has to take note of the same. The criminal prosecution must be without any manifest of malafides and if it is based on the malafides, the Court can exercise the power under Section 482 of Cr.P.C.</b></p><p><b>45.<span style=\"white-space:pre\">	</span>I have already pointed out that two cases are registered and the same amounts to second FIR since no complaint for second FIR and earlier case has been registered for the offence punishable under Section 384 of IPC. No doubt, the learned counsel for the respondents would contend that both the offences are distinct and in the earlier complaint IPC offences are invoked and in these proceedings Prevention of Corruption Act offences are invoked. I have already pointed out that in these cases, no complaint at all and respondent No.3, who is working as a Deputy Superintendent of Police he himself is the complainant in column No.5 of the FIR and he himself though claims in column No.9 that separate complaint has been enclosed, there is no such complaint and apart from that, he himself has registered the case giving requisition to the XXIII Additional City Civil and Sessions Judge, Bengaluru and hence the very contention of the learned counsel for the petitioner is that the very registration of the case against the petitioner is with manifest of malafides. The delay has not been properly explained and apart from that there is no any demand and acceptance which is sine quo non for registration of case under the P.C.Act and the same is missing and merely referred the name of this petitioner that illegal corrupt practice was  made.  In the absence of any demand and acceptance recovery, there cannot be any criminal prosecution that too under the P.C. Act. No doubt in one case, it is contended that recovery is made at the instance of the petitioner and in order to substantiate the same, there is no material at all except creation of documents. Though alleged that one Bhushan has handed over the amount to the petitioner, no material on record and the petitioner is not a part of the recovery proceedings except creation of mahazars at the instance of panchas. But it is only creation of documents by the respondents. No recovery of any bait money at the instance of the petitioner, only an allegation is that he has produced.</b></p><p><b>46.<span style=\"white-space:pre\">	</span>Having perused the material available on record, it is a classic case of abuse of process. First of all, no complaint and apart from that no demand and acceptance and that too case has been initiated at the instance of respondent No.3 suo motu by giving requisition to the Court. It is important to note that other cases also have been registered against the petitioner herein and this Court has granted stay in respect of other proceedings in coming to the conclusion that there is no prima facie material. Thereafter, second FIR has been registered by  the respondents in the absence of complaint and no allegations of demand and acceptance by this petitioner and only referred the name of other accused, who referred the name of the petitioner. Under the circumstances, the petitioner facing the criminal prosecution, which is serious in nature amounts to miscarriage of justice.</b></p><p><b>47.<span style=\"white-space:pre\">	</span>This Court earlier granted an order of stay in these proceedings also in all the petitions and the same has been challenged before the Apex Court in S.L.P.(Crl.)Nos.387- 388/2021, 487-488/2021 and 493-494/2021 and though stay was granted at the first instance vide order dated 05.07.2021, those SLPs are dismissed confirming the order of stay granted by this Court. When the matter was listed for hearing, the Apex Court comes to the conclusion that no ground to interfere with the impugned orders passed by this Court and confirmed the order of stay granted by this Court.</b></p><p><b>48.<span style=\"white-space:pre\">	</span>Having considered the material available on record, I have already pointed out that there is no any complaint and also two petitions are arising out of the second FIR and the very complainant himself has registered the case making request to the Court and no demand and acceptance which is sine quo non for registration of cases under the P.C. Act and when there is no demand and acceptance, the question of invoking P.C. Act, particularly Sections 7A and 13(1)(a) of the P.C. Act is nothing but an abuse of process. If this Court fails to exercise the  powers under Section 482 of Cr.P.C. when there is no complaint,</b></p><p><b>demand and acceptance and that too six cases are registered against this petitioner in one or the other either invoking IPC offence or P.C. Act and it is prima facie emerged that it is a clear case of abuse of process and infighting between the officers of the very same department for the reasons best known to them and booked the cases against this petitioner in one or the other and hence it is appropriate to invoke Section 482 of Cr.P.C.</b></p><p><b>49.<span style=\"white-space:pre\">	</span>The Apex Court also in the judgment in the case of STATE OF KARNATAKA v. L. MUNISWAMY AND OTHERS reported in (1977) 2 SCC 699 with regard to the exercising the powers under Section 482 of Cr.P.C. held that in exercise of wholesome power, High Court is entitled to quash the proceedings if it comes to the conclusion that allowing the proceedings to continue would be an abuse of process of the Court or that the ends of justice require that the proceedings ought to be quashed. It is also observed that while exercising the jurisdiction under Section 482 of Cr.P.C., the powers ought not to be encased within the straight jacket of a rigid formula. It is the duty of the Court to consider judicially whether the material wants prosecution of a person. No doubt in the judgment of the Apex Court which has been referred by the learned counsel for the respondent in Dineshbhai Chandubhai Patel (supra), held that it is the duty of the Investigating Officer to examine the contents of the complaint and if prima facie discloses then the Court should not venture to exercise the power under Section 482 of Cr.P.C. and if no prima facie material is disclosed in the complaint, it amounts to an abuse of process, which leads to miscarriage of justice, then the Court  can invoke Section 482 of Cr.P.C. But in the cases on hand, no complaints at all, except the requisition of the complainant to the Court.</b></p><p><b>(i)<span style=\"white-space:pre\">	</span>The petitions are allowed.</b></p><p><b>(ii)<span style=\"white-space:pre\">	</span>The FIRs registered against the petitioner herein in Crime Nos.15/2020, 16/2020 and 17/2020 by the respondents are hereby quashed.</b></p>', 'c018dafacf59c751c9b578afd5a8f887.jpg', '3bcde99e9fff547c25c6e82516375adf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-15', 1, '', '', '2021-09-16 02:43:04', '2021-09-16 15:00:00'),
(1029, '3JFsuPb9tksVQPjdFVxNEkykC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Quasi Judicial authorities like Revenue Officers cannot simply reserve matters for orders without intimating the parties. They must fix a date for pronouncement of orders and intimate parties in advance. Karnataka High Court.  ', '<p><b>B.Thungamba vs The State of Karnataka&nbsp;<br>Writ Petition&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15819/2021 (KAHC010313882021) KLR RES<span style=\"white-space:pre\">	</span><br>Order dated 1 September 2021</b></p><p><b>ORDER 1. Learned AGA accepts notice for respondent Nos.1 to 4. </b></p><p><b>2. Issue notice to respondent Nos.5 to 8 returnable by 05.10.2021. </b></p><p><b>3. The petitioner is before this Court seeking for certiorari to quash the order dated 09.04.2021 passed in revision petition in R.P.No.69/2015-16 under Section 136(3) of the Karnataka Land Revenue Act, 1964 by respondent No.2 wherein the order dated 05.06.2013 passed by respondent No.3-Assistant Commissioner directed the removal of the name of the petitioner from the mutation register. </b></p><p><b>4. Learned counsel for the petitioner submits that though the order is dated 09.04.2021, the petitioner came to know about this much subsequently and hence, he is before this Court today. </b></p><p><b>5. In view of the above, the order dated 09.04.2021 passed in revision petition in R.P.No.69/2015-16 under Section 136(3) of the Karnataka Land Revenue Act, 1964 by respondent No.2 is stayed until next date of hearing. </b></p><p><b>6. This is an issues which is usually faced by several persons like the petitioner in their proceedings, when the Quasi Judicial Authority hears the parties and reserves the matter for orders without intimating next date. Thereafter, the orders are not sent by registered post but they are sent by ordinary post, resulting in delay in the petitioner approaching this Court. Further more, many a time, the said order goes unnoticed for years together resulting in the petition being filed challenging the same after several years. It is required that this issue be addressed at the highest level of the Government at the earliest. </b></p><p><b>7. It is directed that whenever the Quasi Judicial Authority reserves a matter for further orders, the Quasi Judicial Authority fix a date for pronouncement of the order and pronounce the order on that day. If the orders are not ready on that day to adjourn the matter to another day by fixing the date for passing the orders and pronounce the same. Even thereafter when orders are required to be communicated, the same to be communicated by Registered Post Acknowledgement Due or Speed Post Acknowledgment Due, so that the necessary records are available to impute knowledge of the order on the person suffering the orders. </b></p><p><b>8. Learned AGA is directed to bring the above order to the notice of the Chief Secretary and the Principal Secretary, Revenue Department, Government of Karnataka. Copy of the order to be furnished to the Government Advocate. </b></p><p><b>9. Re-list on 05.10.2021.</b></p>', '3d0fb4926aab591a287464dc1cba671f.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-16', 1, '', '', '2021-09-17 01:36:06', '2021-09-17 01:36:06'),
(1030, 'KNjwuBO1yXyTTVmH1agH10vMj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court Judgment on tuition fee concession to be given by educational institutions in the State of Karnataka. ', '<p><b>Associated of India Schools and another vs The State of Karnataka and others.&nbsp;<br>Writ Petition 4818 of 2021 decided on 16 September 2021<br></b></p><p><b>7.In the light of the above, this Court proceeds to pass the following:</b></p><p><b>ORDER</b></p><p><b>(i) The petitioner-Institution (school Management of the concerned private unaided school) shall collect annual school fees from their students as fixed under the Act of 1995 for the academic year 2019-20, but by providing deduction of 15 per cent&nbsp; on that amount in lieu of unutilised facilities by the students during the relevant period of academic year 2020-21.</b></p><p><b>(ii) Regardless of the above, it will be open to the petitioners (concerned schools) to give further concession to their students or to evolve a different pattern for giving concession over and above those noted in clause (i) above.</b></p><p><b>(iii) The school Management shall not debar any student from attending either online&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">classes or physical classes on account of non-payment of fees, arrears/outstanding fees including the installments, referred to above, and shall not withhold the results of the examinations of any student on that account.</b></p><p><b>(iv) If any individual request is made by the parent/ward finding it difficult to remit annual fees for the academic year 2020-21 in the above terms, the school Management to consider such representation on case-to- case basis sympathetically.</b></p><p><b>(v) The above arrangement will not affect collection of fees for the academic year 2021-22, as is payable by the students of the concerned school as and when it becomes due and payable.</b></p><p><b>(vi) The school Management shall not withhold the name of any student/candidate for the ensuing Board examinations for Classes X and XII on the ground of non-payment of fee/arrears for the academic year 2020-21, if any, on obtaining undertaking of the concerned parents/students.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '7fee3091fa3a76143b735ebaab6882ff.jpg', 'd668fff562bea1879ad47a388dc8672f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-17', 1, '', '', '2021-09-18 03:06:34', '2021-09-18 03:06:34'),
(1031, 'tLTmGzyG4Ug26KAGDIoZVzsmN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Rejection of plaint on the ground of delay based on constructive notice. A defendant cannot pick up few sentences here and there from the plaint and seek rejection of plaint. Supreme Court.  ', '<p><b>Salim D Agboatwala and others vs Shamalji Oddhavji Thakkar and others.&nbsp;</b></p><p><b>Civil Appeal 5641 of 2021 decided on 17 September 2021</b></p><p><b>Justice Hemant Gupta and Justice V. Ramasubramanian&nbsp;</b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2014/26209/26209_2014_41_1501_30130_Judgement_17-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2014/26209/26209_2014_41_1501_30130_Judgement_17-Sep-2021.pdf</a></b></p><p><b>2. Their plaint having been rejected by the trial court under Order VII Rule 11 (d) of the Code of Civil Procedure, 1908, and the said rejection having been confirmed by the High Court in a first appeal, the plaintiffs have come up with the above appeal.</b></p><p><b>13. As&nbsp; &nbsp;observed&nbsp; &nbsp;by&nbsp; &nbsp;this&nbsp; &nbsp;Court&nbsp; &nbsp;in&nbsp; P.V.&nbsp; &nbsp;Guru&nbsp; &nbsp;Raj&nbsp; &nbsp;Reddy&nbsp; vs.&nbsp; P. Neeradha Reddy And Others (2015) 8 SCC 331,&nbsp; the rejection of plaint under Order VII Rule 11 is a drastic power conferred on the Court to terminate a civil action&nbsp; &nbsp;at&nbsp; &nbsp;the&nbsp; &nbsp;threshold.&nbsp; &nbsp;Therefore,&nbsp; &nbsp;the&nbsp; &nbsp;conditions&nbsp; &nbsp;precedent&nbsp; &nbsp;to&nbsp; &nbsp;the exercise of the power are stringent and it is especially so when rejection of plaint is sought on the ground of limitation. When a plaintiff claims that he gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application under Order VII Rule 11.&nbsp;</b></p><p><b>14. Again as pointed out by a three member bench of this Court in Chhotanben&nbsp; vs.&nbsp; Kiritbhai&nbsp; &nbsp;Jalkrushnabhai&nbsp; &nbsp;Thakkar (2018) 6 SCC 422,&nbsp; the&nbsp; &nbsp;plea regarding&nbsp; &nbsp;the&nbsp; &nbsp;date&nbsp; &nbsp;on&nbsp; &nbsp;which&nbsp; &nbsp;the&nbsp; &nbsp;plaintiffs&nbsp; &nbsp;gained&nbsp; &nbsp;knowledge&nbsp; &nbsp;of&nbsp; &nbsp;the essential facts, is crucial for deciding the question whether the suit is barred by limitation or not. It becomes a triable issue and hence the suit cannot be thrown out at the threshold.</b></p><p><b>16. But a defendant in a suit cannot pick up a few sentences here and there from the plaint and contend that the plaintiffs had constructive notice of the proceedings and that therefore limitation started running from the date of constructive notice. In fact, the plea of constructive notice is raised by the respondents, after asserting positively that the plaintiffs had real knowledge as well as actual notice of the proceedings. In any case, the plea of constructive notice appears to be a subsequent invention.</b></p><p><b>17... Section 3 of the Transfer of Property Act, 1882, provides that a person is said to have notice of a fact,&nbsp; (i)&nbsp; either when he actually knows that fact; or&nbsp; (ii)&nbsp; when, but for willful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.</b></p><p><b>18. The 2 ingredients of the relevant part of Section 3 providing as to when&nbsp; &nbsp;“a&nbsp; &nbsp;person&nbsp; &nbsp;is&nbsp; &nbsp;said&nbsp; &nbsp;to&nbsp; &nbsp;have&nbsp; &nbsp;notice”,&nbsp; &nbsp;are&nbsp; &nbsp;matters&nbsp; &nbsp;of&nbsp; &nbsp;fact&nbsp; &nbsp;to&nbsp; &nbsp;be established through evidence. The respondents in this case cannot even fall back upon Explanation II which holds that a person acquiring an immovable property will be deemed to have notice of the title of a person in actual possession thereof.</b></p><p><b>26. Therefore, we are of the considered view that the Trial Court as well as the High Court were clearly in error in rejecting the plaint under Order VII Rule 11(d). Hence, the appeal is allowed, the judgment and decree of the Trial Court as well as the High Court are set aside and the suit is restored to file. There will be no order as to costs.</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '55f768c7d45abfec81586af233f7bcbe.JPG', 'd51f2f96431b2e43b0ece5e426b35e10.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-19', 1, '', '', '2021-09-20 00:19:19', '2021-09-20 00:19:19'),
(1032, 'myJXvAa2CGULJoV3HE6SWU0tQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 482. Quashing of non-compoundable cases. Guiding factor is as to whether the ends of justice would justify such exercise of power, both the ultimate consequences may be acquittal or dismissal of indictment. Karnataka High Court.  ', '<p><span style=\"font-weight: bolder;\">Mr.Mirajuddin and others vs State of Karnataka and another&nbsp;<br></span><b>Criminal Petition 201085 of 2021 and connected cases<br>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/406601/1/CRLP201085-21-13-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/406601/1/CRLP201085-21-13-09-2021.pdf</a></b></p><p><b>9. It is submitted that out-come of criminal proceedings is a result of matrimonial discord which is private in nature and therefore in view of settlement entered between the parties the respective complainants are not interested in continuing the criminal proceedings initiated against each other.</b></p><p><b>12. In Narinder Singh and others vs State of Punjab and another, reported in (2014) 6 SCC 466, the Hon\'ble Apex Court, at paragraphs 8 and 24 has held as under:</b></p><p><b><i>\"8. We find that there are cases where the power of the High Court under Section 482 of the Code to quash the proceedings in those offences which are uncompoundable has been recognised. The only difference is that under Section 320(1) of the Code, no permission is required from the Court in those cases which are compoundable though the Court has discretionary power to refuse to compound the offence. However, compounding under Section 320(1) of the Code is permissible&nbsp; only in minor offences or in non-serious offences.&nbsp;</i></b><i style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Likewise, when the parties reach settlement in respect of the offences enumerated in Section 320(2) of the Code, compounding&nbsp; is&nbsp; permissible but it requires the approval of the Court. Insofar as serious offences are concerned, quashing of&nbsp; criminal proceedings upon compromise&nbsp; is&nbsp; within the discretionary powers of the High Court. In such cases, the power is exercised under Section 482 of the&nbsp; Code and proceedings are quashed. Contours&nbsp; of these powers were described by this Court in&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">B.S. Joshi v. State of Haryana (2003) 4 SCC 675, which has been followed and further explained/elaborated in so many cases thereafter, which are taken note of in the discussion that follows hereinafter.\"</b></i></p><p><b><i>\"24. The two rival parties have amicably settled the disputes between themselves&nbsp; and&nbsp; buried the hatchet. Not only this, they say&nbsp; that since they are neighbours, they want to live like good neighbours and that was the reason for restoring friendly ties. In such a scenario,&nbsp; should the court give its imprimatur to such a settlement? The answer depends on various incidental aspects which need serious discourse. The legislators have categorically recognized that those offences which are covered by the provisions of Section 320 of the Code are concededly those which not only do not&nbsp; fall within the category of heinous crimes but also&nbsp;</i></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>which are personal between the parties. Therefore, this provision recognizes where there is a compromise between the parties, the court is to act at the said compromise and quash the proceedings. However, even in respect of such offences not covered within the four corners of Section 320 of&nbsp; the Code, the High Court is given power under Section 482 of the Code to accept the compromise between the parties and quash the&nbsp; proceedings. The guiding factor is as to whether the ends of justice would justify such exercise of power, both the ultimate consequences may be acquittal or dismissal of indictment. This is so recognized in various judgments taken note of above.\"&nbsp;</i></b></p><p><b>13.<span style=\"white-space:pre\">	</span>In B.S.&nbsp; Joshi&nbsp; and&nbsp; others&nbsp; v.&nbsp; State&nbsp; of&nbsp; Haryana and another, reported in&nbsp; (2003)&nbsp; 4&nbsp; SCC&nbsp; 675,&nbsp; the Hon\'ble Apex Court has held that High Court&nbsp; in&nbsp; exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.</b></p><p><b>14.<span style=\"white-space:pre\">	</span>In Gian Singh vs. State of Punjab and another, reported in (2012) 10 SCC 303, the Hon\'ble Apex Court, at para 58 has held as under:</b></p><p><b><i>\"58. Where the High Court quashes&nbsp; a criminal proceeding having regard to the fact that the dispute between the offender and the&nbsp; victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an&nbsp; end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the well-being of the society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without the&nbsp; permission of the court. In respect of serious offences like murder, rape, dacoity, etc., or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions&nbsp; or&nbsp; the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and&nbsp; the&nbsp; offender and the victim have settled all disputes between them amicably, irrespective of the fact&nbsp; that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash&nbsp; the&nbsp; criminal proceeding or criminal complaint or FIR&nbsp; if&nbsp; it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard-and-fast category can be prescribed.\"</i></b></p><p><b>15.<span style=\"white-space:pre\">	</span>Considering the over all facts and&nbsp; circumstances and considering the joint memorandum of settlement filed by the respective parties and in the light of the above decisions of the Hon\'ble Apex Court, it is appropriate to quash the criminal proceedings initiated against the petitioners so as to meet the ends of justice. Hence, the following :</b></p><p><b>ORDER</b></p><p><b>Petitions are allowed.</b></p><p><b>The entire proceedings arising out of Charge Sheet No.59/2020 (Crime No.189/2019 of Jewargi Police Station, Kalaburagi) pending in S.C.No.68/2021, on the file of Principal District and Sessions Judge, Kalaburagi and the proceedings arising out of Charge Sheet No.285/2017 (Crime No.206/2017 of Jewargi Police Station, Kalaburagi) pending in C.C.No.330/2018, on the file of Senior Civil Judge and JMFC Court, Jewargi against the petitioners are hereby quashed</b></p><div><br></div>', '8faa22411878c0fcaee8a081ae62d11d.jpg', 'aebaae23963e319f5e5ebd9fb0a5f6ab.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-20', 1, '', '', '2021-09-20 17:14:49', '2021-09-20 12:53:02'),
(1033, 'zEbsCgl9aoHhnNfo9RNKj6dQC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Privatisation of Airports. Policy decision of the executive are best left to it and a Court should not interfere with the policy decision unless the decision of the authority is mala fide, arbitrary, irrational or unreasonable. Karnataka High Court. ', '<p><b>Airports Authority Employees Union vs Union of India and others&nbsp;<br>Writ Petition 2065 of 2021 (PIL) decided on 14 September 2021<br>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/406634/1/WP2065-21-14-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/406634/1/WP2065-21-14-09-2021.pdf</a></b></p><p><b>The petitioner-Airport Authority Employees (AAE) Union before this Court is a registered and recognized Trade Union of employees functioning under the Airports Authority&nbsp; of&nbsp; India (AAI) has filed this present petition by way of a PIL being aggrieved by the decision of the Cabinet Committee dated 08.11.2018 in respect of privatisation of Airports, the subsequent bidding process in the matter as well as Cabinet decision dated 03.07.2019 accepting the bid of respondent No.6. Prayers have also been made for quashing of the consequential Concession Agreement dated 14.02.2020.</b></p><p><b>3. The petitioner\'s contention is that such a stand was contrary to the international standards as well as the norms of the bidding process.&nbsp;</b></p><p><b>25. Though the present writ petition is maintainable before this Court, in the light of the finding arrived at in paragraph 63(ii) of the order delivered by the Kerala High Court, the fact remains that the petitioner-AAE is a registered Trade Union and the same Trade Union has preferred the writ petition in respect of the policy decision for leasing out the airports. The process was common and in all fairness the petitioner should have disclosed the fact of filing of the writ petition before the Kerala High Court. The petitioner-AAE Union has suppressed the vital information that the policy&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">decision which is the subject matter of this petition was also challenged before the Kerala High Court and therefore, the present petition deserves to be dismissed on account of suppression of facts.</b></p><p><b>29. In the considered opinion of this Court, the AAI has followed a most transparent process in leasing out the airports. The airport in question has not been leased out by way of private negotiation. The tender was issued and the successful bidder has been awarded the contract and there is no violation of any statutory provision of law in the matter. The Hon\'ble Supreme Court in the case of Balco Employees\' Union (Regd) v. Union of India and Others reported in (2002) 2 SCC 333 has dealt with the scope of judicial review in respect of policy decisions and has held unless a decision&nbsp; &nbsp;is contrary to any statutory provision or the Constitution, the Courts cannot interfere with it.&nbsp;</b></p><p><b>31. The Hon\'ble Supreme Court of India in the following judgments has held that the scope of the judicial review in contractual matters is quite limited. The legal position is settled that judicial review is not so much concerned with the correctness of the ultimate decision as it&nbsp; is with the decision making process unless of course the decision itself is so perverse or irrational or in such&nbsp; outrageous defiance of logic that the person taking the decision can be said to have taken leave of his senses.</b></p><p><b>i)<span style=\"white-space:pre\">	</span>GRIDCO LTD. V. SADANANDA DOLOI, (2011) 15 SCC 16</b></p><p><b>ii)<span style=\"white-space:pre\">	</span>PIMPRI CHINCHWAD MUNICIPL CORPN.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">v. GAYATRI CONSTRUCTION CO., (2008) 8 SCC 172</b></p><p><b>iii)<span style=\"white-space:pre\">	</span>G.B.MAHAJAN v. JALGAON MUNICIPAL COUNCIL (1991) 3 SCC 91</b></p><p><b>32.<span style=\"white-space:pre\">	</span>The Hon\'ble Supreme Court in the aforesaid case has held that the policy decision of the executive are best left to it and a Court should not interfere with the policy decision unless the decision of the authority is mala fide, arbitrary, irrational or unreasonable. It has been further held that it is well accepted principle that in complex, social and economic matters, decisions have been taken by the governmental authorities keeping in view the several factors and it is not&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">possible for the Courts to consider competitive claims and to conclude which way the balance tilts. The Courts are ill- equipped to substitute the decisions and in the present case also it is purely a policy decision of the Government of India&nbsp; to lease out the airports for better management and functioning. Therefore, as the petitioner-AAE Union has not been able to point out violation of statutory provision of law and the constitutional provisions, the present writ petition deserves to be dismissed and it is accordingly dismissed.</b></p><p><br></p>', '7a993da059ff4d0287de1301270ad354.jpg', '21d0141260047b1eaac3c78a694c8ffe.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-20', 1, '', '', '2021-09-21 01:00:13', '2021-09-21 01:00:13'),
(1034, 'oPsNZtPCybnQxAHHbytsYueMS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'Quasi judicial body soliciting disputes to be filed before it is a violation of every known canon of principles of natural justice.\' Karnataka High Court quashes orders of Electricity Regulatory Commission on grounds of official bias. ', '<p><b>Aadyaarush Power Projects Pvt Ltd vs State of Karnataka and others.<br>Writ Petition 52028 of 2021 and connected matters decided on 20 September 2021<br>Judgment Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/406758/1/WP52028-18-20-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/406758/1/WP52028-18-20-09-2021.pdf</a></b></p><p><b>Assemblage of these petitions raise a challenge to the order passed by the  Karnataka  Electricity  Regulatory Commission in rejecting Original Petition No.214 of 2017 filed before it by the petitioners and directing that the petitioners shall be entitled to a particular tariff. Since facts are common in all these petitions, facts obtaining in Writ Petition No.52028 of 2018 are referred to in this order for the sake of convenience.</b></p><p><b>17. The issue now remains for consideration is, whether the Commission could have directed BESCOM  to direct the petitioners and the like to approach the Commission for extension of time. Having solicited petitions being filed before the Commission, whether the Commission has acted as a Judge in its own cause. One acting as a Judge in his  own cause is  a hue of bias as  bias has manifold hues and shades, one of which is ‘no man can be a judge of its own cause’. To  consider whether the Commission has acted as a  Judge  in  its  own cause, it is germane to notice the judgments of the Constitutional Courts on the issue of bias, its forms and hues.</b></p><p><b>18. One of the cardinal principles of  natural justice is ‘nemo debetesse judex in propria causa’ (no man shall be a judge in his own cause). The deciding authority must be impartial and without bias. The Rule </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that bias  vitiates  any  findings  is  a  rule  of  natural  justice. It is trite law that official bias  or  bias  of  the  subject matter is one of the limbs  of  bias.  To  appreciate the said principle on the  touchstone  of  official  bias  or  bias to the  subject-matter,  the  test  is  whether  there  was a real likelihood of  a bias  even though such bias  has  not  in fact taken place. </b></p><p><b>25. In the light of the law laid down by the Apex Court in the afore-extracted judgments if the orders/communications of the Commission is noticed, it would without doubt get vitiated on account of Commission soliciting and directing BESCOM not to issue any extension orders and to direct all the  petitioners  to  approach  the  Commission.  It  is coercing the petitioners to come before the Commission as it has already looked into the file and decided to direct that BESCOM should not issue any orders and that it would decide the case if it is brought before it.</b></p><p><b>26. In my considered view, there cannot be a better example of bias of the subject matter or official bias on the part of the Commission, to have already pre- judged the issue, directing the parties to come before it and decide the issue re-affirming what it had already decided on hand. It is like saying “you come before me; I’ll adjudicate, else wither none shall adjudicate”</b></p><p><b>27. The contentions of the learned counsel appearing for the respondent/BESCOM and the Commission are unacceptable, as it is a clear case of official bias or bias of the subject matter on the part of  the Commission. The contention with regard to judgments concerning bias, quoted (supra), that, they are all of service jurisprudence and would not be applicable to the facts of the case at hand is  also  rejected, for the reason that bias is that principle of natural justice which permeates into every  sphere  of  law, be it any kind of jurisprudence. Therefore, the first leg of proceedings before the Commission gets vitiated.   It is, thus, the Commission did not proceed  with  an  open mind to consider the case of the petitioners as the Commission had issued plethora of directions/ letters to act in a particular manner.</b></p><p><b>37. For the foregoing reasons, I hold that the action of the Commission in soliciting petitions to be  filed before it after having pre-judged the issue is in violation of every known canon of principles of natural justice and is vitiated by bias; the jurisdiction of the Commission cannot be taken away on the plea of the petitioners that parties cannot confer  jurisdiction; parties have not conferred jurisdiction, the  jurisdiction  is conferred by the Act and the PPA between the parties.</b></p><p><b>(a) All the writ petitions are allowed, the impugned orders passed by the Commission in all these cases stand quashed.</b></p><p><b>(b) These matters are remitted back to  the  hands of the Commission for appropriate resolution of the dispute bearing in mind the observations made in the course of the order</b></p><div><br></div>', 'a50bfbc8d7b31f97307dc64b2a427523.jpg', '9aebf6a37509d7fd61f458c60be75a0b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-20', 1, '', '', '2021-09-21 01:52:25', '2021-09-21 01:53:09'),
(1035, 'HswMcbCSwG51BHmHbD5Mh2kmm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'MVC Act. Deprivation of promotion in employment and loss of employment opportunity after retirement due to disability. Legislature to take note of this aspect and bring suitable amendment. Karnataka High Court.    ', '<p><b>V. Ramachandra vs Rajesh Naik and another.&nbsp;<br>Miscellaneous First Appeal 3688 of 2015 decided on 26 August 2021<br>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/406200/1/MFA3688-15-26-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/406200/1/MFA3688-15-26-08-2021.pdf</a></b></p><p><b>1. The appellant is before this Court seeking for enhancement of compensation than that&nbsp; awarded by the I Additional Senior Civil Judge &amp; MACT-VI, Mangalore, D.K., in MVC&nbsp; No.1085/2012 by order dated 04.09.2014.</b></p><p><b>10. Though the above matter seems to not involve any particular serious question, but,&nbsp; in actuality it involves a serious question as to whether merely because the injured continue in service and continued receipt of payment of salary,&nbsp; could compensation of loss of future earning be denied to such person or could just&nbsp; compensation be denied on that account.</b></p><p><b>11. The compensation which is awarded in motor vehicle accident matters is towards the injuries caused or on account of death in the event of death occurring. The measure of damages and the methodology of calculation of damages/compensation over a period of time&nbsp; has been evolved both under M.V. Act as also by various judgments passed by the Hon’ble Apex Court. Since there is no particular form of identifying and calculating the loss in monetary terms caused to the injury or to the family on account of death, there are various formulas, which have been evolved over a time to try and&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">compensate the injured person as also the family of the deceased.&nbsp; None of the methodology can be said to be perfect but there is an attempt, which is made to try and compensate the injured and the family of the deceased.</b></p><p><b>12. One of the methodology adopted for compensating a injured person is by taking into account the disability factor resulting out of the accident which is certified by a doctor, which could be taken into consideration to assess the loss of future income and compensation on this head of account be granted. This is a simple manner of a calculation. If a person is involved&nbsp; in a business or agricultural activity or where a period is required to establish his/her income by cogent evidence, in such cases, notional income would be taken into account and loss of disability in<span style=\"white-space:pre\">	</span>terms of percentage could be taken into consideration for awardal of damages.</b></p><p><b>15. As aforesaid, loss of future earnings is&nbsp; a measure of damages not the actual damages which has been suffered. It cannot at this stage be gain said that the appellant will not get promotion and/or like which he would have been able to obtain if he was completely active and&nbsp; not having sustained 47% disability.</b></p><p><b>16. It is also cannot be gain said at this stage as to what is the impact thereof after his retirement since he would not be in a position to&nbsp; take up any other job which he would have been if he was completely active.</b></p><p><b>17. This aspect would have to be taken into consideration by the legislature and suitable amendment be made to cater to such situation.</b></p><p><b>18. At present, this Court though facing such a situation is unable to come to the rescue of the appellant by awarding just compensation on account of loss of future earning.</b></p><p><b><br></b></p><p><br></p>', '2e9476d09c7950e9668671433e471547.jpeg', 'edd6fcb32c9cd044167665ff19f4eccc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-20', 1, '', '', '2021-09-21 03:30:24', '2021-09-21 03:30:24'),
(1036, 'KubWpk4SwmN7lkGKFS6FPonQY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A caretaker or servant does NOT acquire any interest in the property irrespective of his long possession. Supreme Court.  ', '<p><b>Himalaya Vintrade Pvt Ltd vs MD. Zahid and another</b><br><b>Civil Appeal 5779 of 2021 decided on 16 September 2021</b><br><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/5940/5940_2021_44_13_30085_Judgement_16-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/5940/5940_2021_44_13_30085_Judgement_16-Sep-2021.pdf</a></b><br></p><p><b>Justice Ajay Rastogi and Justice Abhay S Oka.&nbsp;<br></b></p><p><b>The appellant-defendant has approached to this Court\r\nassailing the order passed by Ld.Trial Judge and confirmed\r\nby the High Court on the application filed at his instance\r\nunder Order VII Rule 11, Civil Procedure Code, 1908.&nbsp;</b></p><p><b>It was a specific case of the respondent no.1-\r\nplaintiff that he was in possession of the subject property\r\nas a caretaker/servant.</b></p><p><b>After the notice was served. The application under\r\nOrder VII Rule 11, CPC came to be filed at the behest of&nbsp;the present appellant-defendant with an objection that the\r\nsuit proceedings at the instance of the respondent no.1-\r\nplaintiff who had pleaded himself to be a\r\ncaretaker/servant, acquires no interest in the subject\r\nproperty irrespective of his long possession, is not\r\nmaintainable under the law and as regards the plea of\r\nadverse possession is concerned, it lacks material\r\nparticulars.</b></p><p><b> After we heard counsel for the parties and taking into\r\nconsideration the material on record, in our considered\r\nview, the Trail Court has committed a manifest error in\r\nappreciating the pleadings on record from the plaint filed\r\nat the instance of respondent no.1-plaintiff who as a\r\ncaretaker/servant can never acquire interest in the\r\nproperty irrespective of his long possession and the\r\ncaretaker/servant has to give possession forthwith on\r\ndemand and so far as the plea of adverse possession is\r\nconcerned as it lacks material particulars and the plaint\r\ndoes not discloses the cause of action for institution of\r\nthe suit.</b></p><p><b>In our considered view, the order of the Ld. Trial\r\nJudge which has been confirmed by the High Court impugned\r\nin the instant proceeding is not sustainable on the first\r\nprinciples of law.</b></p><p><b>Since we have rejected the plaint in reference to the\r\nproceeding initiated, we direct the respondent no.1-\r\nplaintiff to handover, vacant and peaceful possession of\r\nthe subject property in question free from all encumbrances\r\nwithin three months. </b></p><p><b>&nbsp;</b><br></p>', 'd92008dea26125d0611f196c9b1188e9.JPG', '626089228bec48e1c10e7eb83c659e6f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-21', 1, '', '', '2021-09-21 17:22:07', '2021-09-21 17:22:07');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1037, 'SnoZ82mqOAAhJqDJaFK5bCUB3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. Registration of second FIR on the same incident is hit by the “doctrine of sameness” and liable to be quashed as it amounts to improving the facts and the case in the subsequent complaint on the same incident. Karnataka High Court. ', '<p><b>B.V.Byre Gowda vs State of Karnataka and another&nbsp;</b></p><p><b>Criminal Petition 3171 of 2018 decided on 20 September 2021</b></p><p><b>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/407116/1/CRLP3171-18-20-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/407116/1/CRLP3171-18-20-09-2021.pdf</a></b></p><p><b>Petitioner in this criminal petition calls in question proceedings instituted before the Principal Civil Judge (Senior Division) &amp; Chief Judicial Magistrate, Hosakote, Bengaluru Rural District in crime No.224 of 2018, registered at Hoskote Police Station for offences&nbsp; punishable under Sections 504, 332 and 353 of the Indian Penal Code, 1860.</b></p><p><b>10. I have given my anxious consideration to the respective submissions made by the learned senior counsel and the learned counsel appearing for the respondents and in furtherance whereof, the only issue that falls for my consideration is, whether the second complaint which results in second FIR being registered is permissible in the facts of the case?</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The law in this regard as laid down in the aforesaid cases is followed in the latest judgment of the Apex Court in the case of KRISHNA LAL CHAWLA (supra) wherein, it is held as follows:</b></p><p><i><b>“6. Indeed, a closer look at the decision<span style=\"white-space:pre\">	</span>in Upkar<span style=\"white-space:pre\">	</span>Singh [Upkar Singh v. Ved Prakash, (2004) 13 SCC 292: 2005 SCC (Cri) 211] takes us to the contrary conclusion. In regard to the question of material improvements made in a subsequent private complaint by the same complainant against the same accused with regard to the same incident, it may be useful to refer to the following excerpt from Upkar Singh [Upkar Singh v. Ved Prakash, (2004) 13 SCC 292: 2005 SCC (Cri) 211], which&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">further clarifies the holding in T.T. Antony [T.T. Antony v. State&nbsp; of&nbsp; Kerala,&nbsp; (2001)&nbsp; 6&nbsp; SCC 181:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2001&nbsp; SCC&nbsp; &nbsp;(Cri)&nbsp; &nbsp;1048]:&nbsp; &nbsp;(Upkar&nbsp; &nbsp;Singh&nbsp; &nbsp;case [Upkar Singh v. Ved Prakash, (2004) 13 SCC 292: 2005 SCC (Cri) 211], SCC pp. 297-98,&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">para 17)</b></i></p><p><b><i>“17. … In our opinion, this Court in that case only held that any further complaint by the same complainant or others against the same accused, subsequent to the registration of a case, is prohibited under the Code because an investigation in this regard would have already started and further complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence will be prohibited under Section 162 of the Code.”</i></b></p><p><b>It is the aforementioned part of the holding in Upkar Singh [Upkar Singh v. Ved&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Prakash, (2004) 13 SCC 292: 2005 SCC&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(Cri) 211] that bears directly and strongly upon the present case.</b></p><p><b>If the law that is laid down by the Apex Court in the afore- extracted judgments is considered, what would unmistakably emerge is, registration of second FIR on the same incident would be hit by the “doctrine of sameness” and will have to be annihilated as it would amount to improving the facts and the case in the subsequent complaint on the same incident. On the bedrock of the principles laid down in the afore-extracted judgments of the Apex Court, the case at hand will have to be considered.</b></p><p><b>13. A counter complaint is always permissible on the same incident as there can be complaints and two FIRs’, if it is a case of complaint and counter complaint or a case of consequential complaint. These are not the facts in the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">case at hand. Therefore, without a shadow of doubt it would hit by ‘doctrine of sameness’.</b></p><p><b>15.<span style=\"white-space:pre\">	</span>For the aforesaid reasons, I pass the following:</b></p><p><b>O R D E R</b></p><p><b>i. The criminal petition is allowed.</b></p><p><b>ii. The proceedings instituted before the Principal Civil Judge (Senior Division) &amp; Chief Judicial Magistrate, Hoskote, Bangalore Rural in Crime No.224 of 2018 registered at Hoskote Police Station for offences punishable under Sections 504, 332 and 353 of the Indian Penal Code stands quashed qua the petitioner.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'b78d134751047e06d2769866f2b43aeb.jpeg', '47142ea7628918f63f4bd13fcdcb741a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-21', 1, '', '', '2021-09-22 01:32:58', '2021-09-22 01:32:58'),
(1038, 'ZsMEtzIMg7sHjv9mdKn44jtcg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Change of date of birth cannot be claimed as a matter of right and belated application can be rejected on the ground of delay and latches. Supreme Court. ', '<p><b>Karnataka Rural Infrastructure Development Limited vs T.P. Nataraja & others. <br>Civil Appeal 5720 of 2021 decided on 21 September 2021<br>Justice M.R.Shah and Justice A.S.Bopanna.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Feeling   aggrieved   and   dissatisfied   with   the   impugned\r\njudgment and order dated 11.03.2019 passed by the High\r\nCourt of Karnataka at Bengaluru in Regular First Appeal\r\n(RFA) No.1674 of 2013, by which the High Court has allowed\r\nthe   said   appeal   preferred   by   respondent   No.1   herein   <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">employee and has quashed and set aside the judgment and\r\ndecree   passed   by   the   learned   Trial   Court   consequently\r\ndismissing the suit filed by respondent No.1 herein – original\r\nplaintiff declaring the date of birth of employee 24.01.1961,\r\nthe   original   defendant   –   Karnataka   Rural  Infrastructure\r\nDevelopment Limited (hereinafter referred to as the original\r\ndefendant – appellant ­corporation) has preferred the present\r\nappeal. </span></b><br></p><p><b>Shri Gurudas S. Kannur, learned Senior Advocate appearing\r\non   behalf   of   the   appellant   –   corporation   has   vehemently\r\nsubmitted in the facts and circumstances of the case more\r\nparticularly when the request for change of date of birth was made after 24 years and dehors the statutory provisions, the\r\nHigh Court committed a grave error in decreeing the suit and\r\ngranting   the   declaratory   relief.   It   is   submitted   that   as\r\nmandated by Section 5 (2) of the Act, 1974 no such alteration\r\nto the date of birth to the advantage of a State servant be\r\nmade unless the employee has made an application for the\r\npurpose within three years from the date on which his age\r\nand date of birth is accepted and recorded in the service\r\nregister or book or any other record of service or within one\r\nyear   from   the   date   of   commencement   of   the Act, 1974,\r\nwhichever is later. </b></p><p><b>10. Considering the aforesaid decisions of this Court the law\r\non change of date of birth can be summarized as under:\r\n</b></p><p><b>(i) application for change of date of birth can only be as\r\nper the relevant provisions/regulations applicable;\r\n</b></p><p><b>(ii) even if there is cogent evidence, the same cannot be\r\nclaimed as a matter of right;\r\n</b></p><p><b>(iii) application can be rejected on the ground of delay\r\nand latches also more particularly when it is made\r\nat the fag end of service and/or when the employee\r\nis about to retire on </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">attaining the age of\r\nsuperannuation.</b></p><p><b>11. Therefore, applying the law laid down by this court in the\r\naforesaid decisions, the application of the respondent for\r\nchange of date of birth was liable to be rejected on the ground of delay and laches also and therefore as such\r\nrespondent employee was not entitled to the decree of\r\ndeclaration and therefore the impugned judgment and\r\norder passed by the High Court is unsustainable and not\r\ntenable at law.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span><br></p>', 'c6df4f350931a291dc0f4c229cf982c0.jpg', '6f916db7ebcd757064a2e1daf58d1ded.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-21', 1, '', '', '2021-09-22 03:43:09', '2021-09-22 03:44:10'),
(1039, 'klBFVnPV4zvsLks6D2j59yCS1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration. Even when an arbitration agreement exists, it would not prevent the Court to decline a prayer for reference if the dispute in question does not correlate to the said agreement. Supreme Court', '<p><b>DLF&nbsp;Home&nbsp;Developers&nbsp;Limited vs&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rajapura&nbsp;Homes&nbsp;Private&nbsp;Limited&nbsp;&amp;&nbsp;Anr<br></span>Arbitration Petition 17 of 2020 decided on 22 September 2021.<br>Justice N.V. Ramana and Justice Surya Kant<br>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2020/13439/13439_2020_1_1501_30216_Judgement_22-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/13439/13439_2020_1_1501_30216_Judgement_22-Sep-2021.pdf</a></b></p><p><b>17. There is no gainsaying that by virtue of the Arbitration and\r\nConciliation (Amendment) Act, 2015, by which Section 11 (6-A) was\r\nintroduced, the earlier position of law as to the scope of\r\ninterference by this Court at the stage of referral has been\r\nsubstantially restricted. It is also no more res integra that despite\r\nthe subsequent omission of Section 11(6-A) by the Arbitration and\r\nConciliation (Amendment) Act, 2019, the legislative intent behind\r\nthereto continues to be a guiding force for the Courts while\r\nexamining an application under Section 11 of the Act.&nbsp;</b></p><p><b>18. The jurisdiction of this Court under Section 11 is primarily to\r\nfind out whether there exists a written agreement between the\r\nparties for resolution of disputes through arbitration and whether&nbsp;the aggrieved party has made out a prima facie arbitrable case. The\r\nlimited jurisdiction, however, does not denude this Court of its\r\njudicial function to look beyond the bare existence of an arbitration\r\nclause to cut the deadwood. A three-judge bench in Vidya Drolia\r\nVidya Drolia and\r\nOthers v. Durga Trading Corporation &nbsp;(2021)&nbsp;2&nbsp;SCC&nbsp;1, has eloquently clarified that this Court, with a view to\r\nprevent wastage of public and private resources, may conduct\r\n‘prima facie review’ at the stage of reference to weed out any\r\nfrivolous or vexatious claims.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;In this context, the Court, speaking\r\nthrough Sanjiv Khanna, J. held that:</span></b></p><p><b><i>“154.2. Scope of judicial review and jurisdiction of the court\r\nunder Sections 8 and 11 of the Arbitration Act is identical but\r\nextremely limited and restricted.\r\n154.3. The general rule and principle, in view of the legislative\r\nmandate clear from Act 3 of 2016 and Act 33 of 2019, and the\r\nprinciple of severability and competence-competence, is that the\r\nArbitral Tribunal is the preferred first authority to determine and\r\ndecide all questions of non-arbitrability. The court has been\r\nconferred power of “second look” on aspects of non-arbitrability\r\npost the award in terms of sub-clauses (i), (ii) or (iv) of Section\r\n34(2)(a) or sub-clause (i) of Section 34(2)(b) of the Arbitration\r\nAct.\r\n154.4. Rarely as a demurrer the court may interfere at Section 8\r\nor 11 stage when it is manifestly and ex facie certain that the\r\narbitration agreement is non-existent, invalid or the disputes are\r\nnon-arbitrable, though the nature and facet of non-arbitrability\r\nwould, to some extent, determine the level and nature of judicial\r\nscrutiny. The restricted and limited review is to check and protect\r\nparties from being forced to arbitrate when the matter is\r\ndemonstrably “non-arbitrable” and to cut off the deadwood. The\r\ncourt by default would refer the matter when contentions&nbsp;relating to non-arbitrability are plainly arguable; when\r\nconsideration in summary proceedings would be insufficient and\r\ninconclusive; when facts are contested; when the party opposing\r\narbitration adopts delaying tactics or impairs conduct of\r\narbitration proceedings. This is not the stage for the court to\r\nenter into a mini trial or elaborate review so as to usurp the\r\njurisdiction of the Arbitral Tribunal but to affirm and uphold\r\nintegrity and efficacy of arbitration as an alternative dispute\r\nresolution mechanism.”&nbsp;</i></b></p><p><b>N.V. Ramana, J. (as His Lordship then was) in his supplementary\r\nopinion further crystalised the position as follows:\r\n</b></p><p><b><i>“244. Before &nbsp; we &nbsp; part, &nbsp; the &nbsp; conclusions &nbsp; reached, &nbsp; with&nbsp; respect &nbsp; to\r\nQuestion&nbsp;1,&nbsp;are:<br></i></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>244.1. Sections&nbsp; 8&nbsp;and&nbsp; 11&nbsp; of&nbsp;the&nbsp;Act&nbsp;have&nbsp;the&nbsp;same&nbsp;ambit&nbsp; with\r\nrespect&nbsp;to&nbsp;judicial&nbsp;interference.<br></i></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>244.2. Usually,&nbsp;subject­matter&nbsp;arbitrability&nbsp;cannot&nbsp;be&nbsp;decided&nbsp;at&nbsp;the\r\nstage&nbsp;of&nbsp;Section&nbsp;8&nbsp;or&nbsp;11&nbsp;of&nbsp;the&nbsp;Act,&nbsp;unless&nbsp;it&nbsp;is&nbsp;a&nbsp;clear&nbsp;case&nbsp;of\r\ndeadwood.<br></i></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>244.3. The&nbsp;court,&nbsp;under&nbsp;Sections&nbsp;8&nbsp;and&nbsp;11,&nbsp;has&nbsp;to&nbsp;refer&nbsp;a&nbsp;matter&nbsp;to\r\narbitration&nbsp;or&nbsp;to&nbsp;appoint&nbsp;an&nbsp;arbitrator,&nbsp;as&nbsp;the&nbsp;case&nbsp;may&nbsp;be,&nbsp;unless&nbsp;a\r\nparty&nbsp;has&nbsp;established&nbsp;a&nbsp;prima&nbsp;facie&nbsp;(summary&nbsp;findings)&nbsp;case&nbsp;of&nbsp;nonexistence&nbsp;of&nbsp;valid&nbsp;arbitration&nbsp;agreement,&nbsp;by&nbsp;summarily&nbsp;portraying&nbsp;a\r\nstrong&nbsp;case&nbsp;that&nbsp;he&nbsp;is&nbsp;entitled&nbsp;to&nbsp;such&nbsp;a&nbsp;finding.<br></i></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>244.4. The &nbsp; court &nbsp; should &nbsp; refer &nbsp; a &nbsp; matter &nbsp; if &nbsp; the &nbsp; validity &nbsp; of &nbsp; the\r\narbitration&nbsp;agreement&nbsp;cannot&nbsp;be&nbsp;determined&nbsp;on&nbsp;a&nbsp;prima&nbsp;facie&nbsp;basis,\r\nas&nbsp;laid&nbsp;down&nbsp;above&nbsp;i.e.&nbsp;“when&nbsp;in&nbsp;doubt,&nbsp;do&nbsp;refer”.\r\n<br>244.5. The&nbsp;scope&nbsp;of&nbsp;the&nbsp;court&nbsp;to&nbsp;examine&nbsp;the&nbsp;prima&nbsp;facie&nbsp;validity&nbsp;of\r\nan&nbsp;arbitration&nbsp;agreement&nbsp;includes&nbsp;only:<br></i></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>244.5.1. Whether the&nbsp;arbitration&nbsp;agreement&nbsp;was&nbsp;in&nbsp;writing?&nbsp;Or<br></i></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>244.5.3. Whether &nbsp; the &nbsp; core &nbsp; contractual &nbsp; ingredients &nbsp; qua &nbsp; the\r\narbitration&nbsp;agreement&nbsp;were&nbsp;fulfilled?<br></i></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>244.5.4. On &nbsp; rare &nbsp; occasions, &nbsp; whether &nbsp; the &nbsp; subject­matter &nbsp; of\r\ndispute&nbsp;is&nbsp;arbitrable?”</i></b></p><p><b>19. To say it differently, this Court or a High Court, as the case\r\nmay be, are not expected to act mechanically merely to deliver a\r\npurported dispute raised by an applicant at the doors of the chosen\r\nArbitrator. On the contrary, the Court(s) are obliged to apply their\r\nmind to the core preliminary issues, albeit, within the framework of\r\nSection 11(6-A) of the Act. Such a review, as already clarified by this\r\nCourt, is not intended to usurp the jurisdiction of the Arbitral\r\nTribunal but is aimed at streamlining the process of arbitration.\r\nTherefore, even when an arbitration agreement exists, it would not\r\nprevent the Court to decline a prayer for reference if the dispute in\r\nquestion does not correlate to the said agreement.&nbsp;</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b><br></p>', '097629f41bb7e7bb9d0f52f0c21d1c42.jpeg', '7343c172a7ce47099ff6477e6b58b1b3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-22', 1, '', '', '2021-09-23 01:34:38', '2021-09-23 01:34:38'),
(1040, 'Li2OTIZgmGMKzaZdha1OuSuky', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. When presumption remains unrebutted, validity of the agreement for sale of property under which cheque was issued can not be gone into by the court trying cheque bounce cases. Supreme Court. ', '<p><b>Triyambak S Hegde vs Sripad&nbsp;<br>Criminal Appeal 849850 of 2011 decided on 23 September 2021<br>Chief Justice N.V. Ramana Justice Surya Kant and Justice A.S. Bopanna.<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2010/10571/10571_2010_13_1503_30224_Judgement_23-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2010/10571/10571_2010_13_1503_30224_Judgement_23-Sep-2021.pdf</a></span></b></p><p><b>11. From&nbsp;the&nbsp;facts&nbsp;arising&nbsp;in&nbsp;this&nbsp;case&nbsp;and&nbsp;the&nbsp;nature&nbsp;of\r\nthe &nbsp; rival &nbsp; contentions, &nbsp; the &nbsp; record &nbsp; would &nbsp; disclose &nbsp; that &nbsp; the\r\nsignature&nbsp;on&nbsp;the&nbsp;documents&nbsp;at&nbsp;Exhibits&nbsp;P­6&nbsp;and&nbsp;P­2&nbsp;is&nbsp;not\r\ndisputed.&nbsp;Exhibit&nbsp;P­2&nbsp;is&nbsp;the&nbsp;dishonoured&nbsp;cheque&nbsp;based&nbsp;on\r\nwhich&nbsp;the&nbsp;complaint&nbsp;was&nbsp;filed.&nbsp;From&nbsp;the&nbsp;evidence&nbsp;tendered\r\nbefore&nbsp;the&nbsp;JMFC,&nbsp;it&nbsp;is&nbsp;clear&nbsp;that&nbsp;the&nbsp;respondent&nbsp;has&nbsp;not\r\ndisputed&nbsp;the&nbsp;signature&nbsp;on&nbsp;the&nbsp;cheque.&nbsp;If&nbsp;that&nbsp;be&nbsp;the&nbsp;position,\r\nas&nbsp;noted&nbsp;by&nbsp;the&nbsp;courts&nbsp;below&nbsp;a&nbsp;presumption&nbsp;would&nbsp;arise\r\nunder&nbsp;Section&nbsp;139&nbsp;in&nbsp;favour&nbsp;of&nbsp;the&nbsp;appellant&nbsp;who&nbsp;was&nbsp;the\r\nholder&nbsp;of&nbsp;the&nbsp;cheque.</b></p><p><b>12. Insofar&nbsp;as&nbsp;the&nbsp;payment&nbsp;of&nbsp;the&nbsp;amount&nbsp;by&nbsp;the&nbsp;appellant\r\nin&nbsp;the&nbsp;context&nbsp;of&nbsp;the&nbsp;cheque&nbsp;having&nbsp;been&nbsp;signed&nbsp;by&nbsp;the\r\nrespondent, the presumption for passing of the\r\nconsideration&nbsp;would&nbsp;arise&nbsp;as&nbsp;provided&nbsp;under&nbsp;Section&nbsp;118(a)\r\nof&nbsp;N.I.&nbsp;Act<br></b></p><p><b>13. The&nbsp;above&nbsp;noted&nbsp;provisions&nbsp;are&nbsp;explicit&nbsp;to&nbsp;the&nbsp;effect\r\nthat&nbsp;such&nbsp;presumption&nbsp;would&nbsp;remain,&nbsp;until&nbsp;the&nbsp;contrary&nbsp;is\r\nproved.&nbsp;The&nbsp;learned&nbsp;counsel&nbsp;for&nbsp;the&nbsp;appellant&nbsp;in&nbsp;that&nbsp;regard\r\nhas&nbsp;relied&nbsp;on&nbsp;the&nbsp;decision&nbsp;of&nbsp;this&nbsp;court&nbsp;in &nbsp;K. &nbsp;Bhaskaran\r\nvs.&nbsp;Sankaran&nbsp;Vaidhyan&nbsp;Balan&nbsp;&amp;&nbsp;Anr.(1999)&nbsp;7&nbsp;SCC&nbsp;510&nbsp;</b></p><p><b>14. The&nbsp;learned&nbsp;counsel&nbsp;for&nbsp;the&nbsp;respondent&nbsp;has&nbsp;however\r\nreferred&nbsp;to&nbsp;the&nbsp;decision&nbsp;of&nbsp;this&nbsp;Court&nbsp;in &nbsp;Basalingappa &nbsp;vs.\r\nMudibasappa (2019) 5 SCC 418<br></b></p><p><b>16. On&nbsp;the&nbsp;position&nbsp;of&nbsp;law,&nbsp;the&nbsp;provisions&nbsp;referred&nbsp;to&nbsp;in\r\nSection&nbsp;118&nbsp;and&nbsp;139&nbsp;of&nbsp;N.I.&nbsp;Act&nbsp;as&nbsp;also&nbsp;the&nbsp;enunciation&nbsp;of\r\nlaw&nbsp;as&nbsp;made&nbsp;by&nbsp;this&nbsp;Court&nbsp;needs&nbsp;no&nbsp;reiteration&nbsp;as&nbsp;there&nbsp;is&nbsp;no\r\nambiguity&nbsp;whatsoever.&nbsp;In,&nbsp;Basalingappa&nbsp;vs.&nbsp;Mudibasappa\r\n(supra)&nbsp;relied&nbsp;on&nbsp;by&nbsp;the&nbsp;learned&nbsp;counsel&nbsp;for&nbsp;the&nbsp;respondent,\r\nthough&nbsp;on&nbsp;facts&nbsp;the&nbsp;ultimate&nbsp;conclusion&nbsp;therein&nbsp;was&nbsp;against\r\nraising &nbsp; presumption, the facts and circumstances are\r\nentirely&nbsp;different....Hence, &nbsp; whether &nbsp; there &nbsp; is &nbsp; rebuttal &nbsp; or &nbsp; not\r\nwould&nbsp;depend&nbsp;on&nbsp;the&nbsp;facts&nbsp;and&nbsp;circumstances&nbsp;of&nbsp;each&nbsp;case.</b></p><p><b>18. &nbsp;The&nbsp;Learned&nbsp;Single&nbsp;Judge&nbsp;however&nbsp;while&nbsp;accepting&nbsp;the\r\nsaid &nbsp; story &nbsp; has &nbsp; referred &nbsp; to &nbsp; certain &nbsp; discrepancies &nbsp; in &nbsp; the&nbsp;agreement&nbsp;(Exhibit&nbsp;P­6)&nbsp;relating&nbsp;to&nbsp;the&nbsp;details&nbsp;of&nbsp;the&nbsp;property and&nbsp;the&nbsp;appellant&nbsp;having&nbsp;admitted&nbsp;with&nbsp;regard&nbsp;to&nbsp;not&nbsp;having\r\nvisited&nbsp;the&nbsp;property&nbsp;or&nbsp;having&nbsp;knowledge&nbsp;of&nbsp;the&nbsp;location&nbsp;of\r\nthe&nbsp;property.&nbsp;Such&nbsp;consideration,&nbsp;in&nbsp;our&nbsp;opinion,&nbsp;was&nbsp;not\r\ngermane &nbsp; and &nbsp; was &nbsp; beyond &nbsp; the &nbsp; scope &nbsp; of &nbsp; the &nbsp; nature &nbsp; of\r\nlitigation.&nbsp;The&nbsp;validity&nbsp;of&nbsp;the&nbsp;agreement&nbsp;in&nbsp;the&nbsp;manner&nbsp;as&nbsp;has\r\nbeen&nbsp;examined&nbsp;by&nbsp;the&nbsp;learned&nbsp;Single&nbsp;Judge&nbsp;may&nbsp;have&nbsp;arisen\r\nif &nbsp; the &nbsp; same &nbsp; was &nbsp; raised &nbsp; as &nbsp; an &nbsp; issue &nbsp; and &nbsp; had &nbsp; arisen &nbsp; for\r\nconsideration &nbsp; in &nbsp; a &nbsp; suit &nbsp; for &nbsp; specific &nbsp; performance &nbsp; of &nbsp; the\r\nagreement.&nbsp;The&nbsp;decision&nbsp;in &nbsp;K. &nbsp; Chinnaswamy &nbsp; Reddy &nbsp; vs.\r\nState&nbsp; of &nbsp; Andhra &nbsp; Pradesh &nbsp;and &nbsp; Anr.&nbsp; AIR&nbsp;1962&nbsp;SC&nbsp;1788\r\nrelied&nbsp;on&nbsp;by&nbsp;the&nbsp;learned&nbsp;counsel&nbsp;for&nbsp;the&nbsp;respondent&nbsp;would\r\nnot&nbsp;be&nbsp;of&nbsp;assistance&nbsp;in&nbsp;the&nbsp;present&nbsp;facts.&nbsp;Firstly,&nbsp;in&nbsp;the&nbsp;said\r\ndecision &nbsp; this &nbsp; Court &nbsp; has &nbsp; expressed &nbsp; the &nbsp; limited &nbsp; power\r\navailable&nbsp; to &nbsp; the &nbsp; High &nbsp; Court &nbsp; in &nbsp; Revision &nbsp; Petition. &nbsp; Even\r\notherwise,&nbsp;we&nbsp;have&nbsp;disapproved&nbsp;the&nbsp;manner&nbsp;in&nbsp;which&nbsp;the\r\nlearned&nbsp;Single&nbsp;Judge&nbsp;has&nbsp;proceeded&nbsp;to&nbsp;examine&nbsp;the&nbsp;matter\r\non&nbsp;contentions&nbsp;which&nbsp;were&nbsp;not&nbsp;raised&nbsp;as&nbsp;a&nbsp;foundation&nbsp;before\r\nthe &nbsp; Trial &nbsp;Court.&nbsp;<br></b></p><p><b>The Appeals No. 849­850/2011 are ..allowed&nbsp;in&nbsp;part<br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'b2b7065647f076d0a70c546976eea16c.JPG', '8a60885953f587b11cf52aea01092bb1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-23', 1, '', '', '2021-09-23 22:13:53', '2021-09-23 22:13:53'),
(1041, 'YFSvHZ1Rgg5RxcWoXMH0714WV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Administrative Authority, exercising judicial or a quasi-judicial power, must record reasons for its decision unless the requirement has been expressly or by necessary implication done away. Supreme Court reiterates. ', '<p><b>National Highways Authority of India and others vs Madhukar Kumar and others.&nbsp;<br>Civil Appeal 11141 of 2018 decided on 23 September 2021<br>Justice K.M. Joseph and Justice S. Ravindra Bhat<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2018/31282/31282_2018_10_1501_30222_Judgement_23-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/31282/31282_2018_10_1501_30222_Judgement_23-Sep-2021.pdf</a></b></p><p><b>61. Persons, who may have a right or an interest, would\r\nknow, what are the reasons which impelled the\r\nAdministrator to take a particular decision. Judicial\r\nreview, in India, which encompasses the wide contours\r\nof public interest litigation as well, would receive\r\nimmeasurable assistance, if the reasons for particular\r\ndecisions, are articulated to the extent possible. The\r\ngiving of reasons also has a disciplining effect on the\r\nAdministrator. This is for the reason that the reasons\r\nwould capture the thought process, which culminated in\r\nthe decision and it would help the Administrator steer\r\nclear of the vices of illegality, irrationality and\r\nalso disproportionality. Reasons could help establish\r\napplication of mind. Conversely, the absence of reasons&nbsp;may unerringly point to non-application of mind. The\r\nduty to act fairly, may require reasons to be recorded\r\nbut the said duty, though there is a general duty on\r\nall state players to act fairly, may have its\r\nunderpinnings, ultimately in legal rights. </b></p><p><b>62. It is one thing to say that there should be\r\nreasons, which persuaded the Administrator to take a\r\nparticular decision and a different thing to find that\r\nthe reasons must be incorporated in a decision. The\r\nquestion, relating to duty to communicate such a\r\ndecision, would arise to be considered in different\r\nsituations, having regard to the impact, which it, in\r\nlaw, produces. In fact, the second proviso to Rule 17\r\nof the Rules, provides not only for there being\r\nreasons, but the reasons for refusal to permit\r\nbarricades, must be communicated. If the law provides\r\nfor a duty to record reasons in writing, undoubtedly,\r\nit must be followed and it would amount to the violation\r\nof the Statute, if it were not followed. Even if, there\r\nis no duty to record reasons or support an order with\r\nreasons, there cannot be any doubt that, for every may unerringly point to non-application of mind. The\r\nduty to act fairly, may require reasons to be recorded\r\nbut the said duty, though there is a general duty on\r\nall state players to act fairly, may have its\r\nunderpinnings, ultimately in legal rights.</b></p><p> </p><p><b>62. It is one thing to say that there should be\r\nreasons, which persuaded the Administrator to take a\r\nparticular decision and a different thing to find that\r\nthe reasons must be incorporated in a decision. The\r\nquestion, relating to duty to communicate such a\r\ndecision, would arise to be considered in different\r\nsituations, having regard to the impact, which it, in\r\nlaw, produces. In fact, the second proviso to Rule 17\r\nof the Rules, provides not only for there being\r\nreasons, but the reasons for refusal to permit\r\nbarricades, must be communicated. If the law provides\r\nfor a duty to record reasons in writing, undoubtedly,\r\nit must be followed and it would amount to the violation\r\nof the Statute, if it were not followed. Even if, there\r\nis no duty to record reasons or support an order with\r\nreasons, there cannot be any doubt that, for every decision, there would be and there must be, a reason.\r\nThe Constitution does not contemplate any Public\r\nAuthority, exercising power with caprice or without any\r\nrationale. But here again, in the absence of the duty\r\nto record reasons, the court is not to be clothed with\r\npower to strike down administrative action for the mere\r\nreason that no reasons are to be found recorded. In\r\ncertain situations, the reason for a particular\r\ndecision, may be gleaned from the pleadings of the\r\nAuthority, when the matter is tested in a court. From\r\nthe materials, including the file noting’s, which are\r\nmade available, the court may conclude that there were\r\nreasons and the action was not illegal or arbitrary.\r\nFrom admitted facts, the court may conclude that there\r\nwas sufficient justification, and the mere absence of\r\nreasons, would not be sufficient to invalidate the\r\naction of the Public Authority. Thus, reasons may, in\r\ncertain situations, have to be recorded in the order.\r\nIn other contexts, it would suffice that the reasons\r\nare to be found in the files. The court may, when there\r\nis no duty to record reasons, support an administrative&nbsp;decision, with reference to the pleadings aided by\r\nmaterials.&nbsp;</b><br></p>', '587e0471c846484822dbdf90cca94789.jpeg', 'e1a4d4f171cae54e5332e6e9259d4217.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-23', 1, '', '', '2021-09-23 22:45:35', '2021-09-23 22:45:35'),
(1042, 'hGebNQ5ljlVkSfGyuupAmffrS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Judgment rendered in a representative suit under Section 92 will operate as res judicata on the same or substantially the same issue. Supreme Court', '<p><b>The Jamia Masjid vs K.V. Rudrappa by lrs<br>Civil Appeal 10946 of 2014 decided on 23 September 2021<br>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2012/15209/15209_2012_4_1501_30220_Judgement_23-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2012/15209/15209_2012_4_1501_30220_Judgement_23-Sep-2021.pdf</a></b></p><p><b>A Single Judge of the High Court of Karnataka dismissed a second appeal\r\nfiled under Section 100 of the Code of Civil Procedure 19081\r\n, affirming the decision\r\nof the Trial Court and the First Appellate Court that the suit instituted by the\r\nappellant-plaintiff is barred by the principle of res judicata. The appellant moved this\r\ncourt in a Special Leave Petition to challenge the decision of the Single judge. Leave\r\nhas been granted on 8 December 2014.&nbsp;</b></p><p><b>17. In order to attract the principles of res judicata, the following ingredients must\r\nbe fulfilled:\r\n</b></p><p><b>(i) The matter must have been directly and substantially in issue in the former\r\nsuit;\r\n</b></p><p><b>(ii) The matter must be heard and finally decided by the Court in the former\r\nsuit;&nbsp;</b></p><p><b>(iii) The former suit must be between the same parties or between parties\r\nunder whom they or any of them claim, litigating under the same title; and\r\n</b></p><p><b>(iv) The Court in which the former suit was instituted is competent to try the\r\nsubsequent suit or the suit in which such issue has been subsequently\r\nraised.</b></p><p><b>22. It has been held by this court that a determination of whether res judicata is\r\nattracted raises a mixed question of law and facts. In&nbsp;</b><span style=\"font-weight: bolder;\">Madhukar D Shende v. Tarabai Aba Shedage, (2002) 2 SCC 85</span><b>&nbsp;and&nbsp;</b><span style=\"font-weight: bolder;\">Ram Harakh v. Hamid Ahmed Khan &amp; Ors., (1998) 7 SCC 484 18 (1990) 1 SCC 193</span><b>, it was held that the plea of res judicata was a mixed question of law\r\nand facts. In both the cases, the plea of res judicata was taken for the first time\r\nbefore this Court. Justice K. Ramaswamy writing for a three judge bench of this\r\ncourt in Sushil Kumar Mehta v. Gobind Ram Bohra18 held that the principle of res\r\njudicata cannot be fit into the pigeon hole of ‘mixed question of law and facts’ in\r\nevery case. Rather, the plea of res judicata would be a question of law or fact or a\r\nmixed question of both depending on the issue that is claimed to have been\r\npreviously decided. The court while determining the applicability of the plea of res\r\njudicata would determine if there has been any material alteration in the facts and\r\nlaw applicable:</b></p><p><b>We are unable to accept the\r\nsubmission of the appellants that res judicata can never be decided as a preliminary\r\nissue. In certain cases, particularly when a mixed question of law or fact is raised,\r\nthe issue should await a full-fledged trial after evidence is adduced.&nbsp;</b></p><p><b>E.2.2 Representative Suit and Res judicata\r\n34. We next advert to identifying if the parties in the instant proceedings (OS\r\n149/1998) are the same as the first suit (OS 92/1950-51). The first suit was a\r\nrepresentative suit filed by interested parties of the Mosque-Jamia Masjid while the\r\ninstant suit was filed by the President of the Jamia Masjid in his representative\r\ncapacity.</b></p><p><b>On a perusal of the above authorities it is evident that a representative suit is binding\r\non all the interested parties. Therefore, the judgment of the court in the first suit\r\nwould be binding on Jamia Masjid and would preclude it from instituting another suit\r\non the same issue if it has been conclusively decided. It is now to be analysed if the\r\nsubstantive issue in the instant suit was conclusively decided in the first suit. \r\n&nbsp;<br></b></p><p><b>F. The Conclusion\r\n52. In view of the discussion above, we summarise our findings below:\r\n</b></p><p><b>(i) Issues that arise in a subsequent suit may either be questions of fact or of law\r\nor mixed questions of law and fact. An alteration in the circumstances after\r\nthe decision in the first suit, will require a trial for the determination of the plea\r\nof res judicata if there arises a new fact which has to be proved. However, the\r\nplea of res judicata may in an appropriate case be determined as a\r\npreliminary issue when neither a disputed question of fact nor a mixed\r\nquestion of law or fact has to be adjudicated for resolving it;\r\n</b></p><p><b>(ii) While deciding on a scheme for administration in a representative suit filed\r\nunder Section 92 of the CPC the court may, if the title is contested, have to\r\ndecide if the property in respect of which the scheme for administration and\r\nmanagement is sought belongs to the Trust;\r\n</b></p><p><b>(iii) A suit under section 92 CPC is of a representative character and all persons\r\ninterested in the Trust would be bound by the judgment in the suit, and\r\npersons interested would be barred by the principle of res judicata from\r\ninstituting a subsequent suit on the same or substantially the same issue;&nbsp;</b></p><p><b>(vi) While a compromise decree in a prior suit will not bar a subsequent suit by\r\nvirtue of res judicata, the subsequent suit could be barred by estoppel by\r\nconduct. </b><br></p>', '7884a8d9aba9115140b73583ca40f39a.JPG', 'dcddfbd863f4b2a6b7e5172dfcc9f5a0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-23', 1, '', '', '2021-09-24 02:07:43', '2021-09-24 02:07:43'),
(1043, 'jXRha31mdMJt4mOqamtYHSomU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Defection. Split in political party as a defence. Members tendering resignation and coming out of a political party and merely forming a splinter group will not make them a political party. Karnataka High Court.', '<p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Pavitra and others vs The Deputy Commissioner and another&nbsp;</b><br></p><p><b>Writ Petition 17093 of 2021 decided on 25 September 2021</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/408834/1/WP17093-21-25-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/408834/1/WP17093-21-25-09-2021.pdf</a></b></p><p><b>The petitioners claiming to be aggrieved by the order dated 6.09.2021 passed by the 1st respondent/Deputy Commissioner disqualifying the petitioners from the membership of the City Municipal Council, Kollegal have filed the subject writ petition.</b></p><p><b>11. The subject lis arises out of an application/complaint being filed by the 2nd respondent invoking Section 4(1)(b) of the Act seeking disqualification of the petitioners under Section 3 of the Act.</b></p><p><b>12.The facts narrated hereinabove are not in dispute. The petitioners who are elected members of the Council had long before the elections to the office of President and Vice-President resigned from the primary membership&nbsp; of&nbsp; the&nbsp; party.&nbsp; The original records produced bear letters of resignation of the petitioners. If these letters of resignation had been disputed, it would have been a circumstance altogether different. The submission of letters of resignation is&nbsp; not&nbsp; disputed.&nbsp; On&nbsp; the&nbsp; other hand, they are confirmed with emphasis.&nbsp;</b></p><p><b>13. In a proceeding instituted by the 2nd respondent before the Deputy Commissioner invoking Section 4 of the Act seeking disqualification of the petitioners on the ground that they have defected and have voted against the interest of the&nbsp; party,&nbsp; the&nbsp; very petitioners filed their objections. In the objections, the contentions taken up becomes nucleus of the lis. The objections were filed by the petitioners in which a contention is taken up with regard to maintainability of the complaint itself. It is the contention of the petitioners that the 2nd respondent has not challenged the validity of resignation letters which the complainant has chosen to produce as Annexure-19. It is their contention that, if they have voluntarily given up their membership, then the complaint is not maintainable as it falls in the exceptions carved out in terms of Section 3A of the Act.&nbsp;</b></p><p><b>15. In legal parlance resignation means a spontaneous relinquishment of one’s own right in relation to any office. It connotes an act of giving up or relinquishing the&nbsp; office.&nbsp; Generally, resignation to get its full effect should be unconditional. The letters of resignation submitted by the petitioners on the very perusal of them depicts that they were unconditional. Therefore, once having relinquished their own right to continue as councilors, it would not lie with the petitioners to contend that they have to be disqualified in any other manner as depicted in the Act.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">...act of resignation is the knocking off the binding knot which holds one to the office and the obligation and privileges that go with it. The petitioners having resigned, cannot now be seen to contend that they are entitled to protection under the Act insofar as procedure to be followed for disqualification.</b></p><p><b>16. Therefore, Section 3(1)(a) of the Act clearly bars continuation of the petitioners as Members of the Council, as Section 3(1)(a) mandates that if a councilor has given up his Membership of such political party, he shall be&nbsp; disqualified on&nbsp; the ground of defection. Resignation is that voluntary act of the petitioners which snaps complete ties with the office that they were holding. Therefore, resignation being such voluntary act would straightaway be covered under Section 3(1)(a) of the Act.</b></p><p><b>17....Section 3A of the Act protects disqualification of a Member in&nbsp; case of a split in the political party. This protection to the petitioners is not available and the contention is unacceptable.&nbsp; ...</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">A political party in relation of a councillor or a Member would mean a political party recognized by the Election Commission of India as a National party or a State party in the State of Karnataka. Therefore, the protection that the petitioners seek under Section 3A of the Act will have to be considered in terms&nbsp; &nbsp; of what is a political party.</b></p><p><b>18. The contention of the petitioners is that 7 out of 9 of them have resigned and have formed a separate splinter group within the political party. This contention, I fail to countenance, for the reason that merely coming out from a political party and forming a splinter group will not make them a political party. They should either form a political party and seek recognition or show that they have joined a political party which is&nbsp; recognized&nbsp; by the Election Commission of India. It is only then the&nbsp; petitioners can claim that they are protected under Section 3A of the Act.</b></p><p><b>19. The petitioners have tendered their resignation on 29.02.2020; eight months have passed by the time the election was sought to be conducted to the office of President and Vice- President of the CMC. The petitioners have not produced even a tither of evidence to show that their splinter group is a political party recognised by the Election Commission of India as&nbsp; obtaining under Section 2(vi) of the Act or have joined any political party which is already recognized by the Election Commission of India.&nbsp;</b></p><p><b>20. Sitting on the fence and taking up such defence is unavailable to the petitioners. Therefore, the claim of the petitioners for protection under Section 3A of the Act deserves to be rejected. It is not in dispute again that the petitioners have defected from the party and have formed a&nbsp; splinter&nbsp; group.&nbsp; By this admitted fact, they incur disqualification under Section&nbsp; 3(1)(a) of the Act as they have voluntarily given up their membership of such political party.</b></p><p><b>The writ petition being devoid of merit is dismissed.</b></p><p><b><br></b></p><p><br></p>', '006e3fd741a983109082f6a0f2eb1162.jpg', '46562dfd37357ca482d3628d79106c45.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-27', 1, '', '', '2021-09-28 02:49:10', '2021-09-28 02:49:10');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1044, 'fAu6YjqxzqScNosRtZS9DRHW2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. Directors of a company cannot be held vicariously liable unless there are specific allegations and averments against them with respect to their individual role. Supreme Court reiterates. ', '<p><b>Ravindranatha Bajpe vs Mangalore Special Economic Zone Ltd and others.&nbsp;<br>Criminal Appeal 1047-1048 of 2021 decided on 27 September 2021<br>Justice M.R. Shah and A.S. Bopanna&nbsp;</b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2016/6009/6009_2016_43_1501_30333_Judgement_27-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2016/6009/6009_2016_43_1501_30333_Judgement_27-Sep-2021.pdf</a></b></span></p><p><b>8. In the case of Sunil Bharti Mittal (supra), it is observed by this\r\nCourt in paragraphs 42 to 44 as under:\r\n</b></p><p><b><i>“(iii) Circumstances when Director/person in charge of the affairs of\r\nthe company can also be prosecuted, when the company is an\r\naccused person\r\n</i></b></p><p><b><i>42. No doubt, a corporate entity is an artificial person which acts through\r\nits officers, Directors, Managing Director, Chairman, etc. If such a\r\ncompany commits an offence involving mens rea, it would normally be the\r\nintent and action of that individual who would act on behalf of the\r\ncompany. It would be more so, when the criminal act is that of conspiracy.\r\nHowever, at the same time, it is the cardinal principle of criminal\r\njurisprudence that there is no vicarious liability unless the statute\r\nspecifically provides so.\r\n</i></b></p><p><b><i>43. Thus, an individual who has perpetrated the commission of an offence\r\non behalf of a company can be made an accused, along with the\r\ncompany, if there is sufficient evidence of his active role coupled with\r\ncriminal intent. Second situation in which he can be implicated is in those\r\ncases where the statutory regime itself attracts the doctrine of vicarious\r\nliability, by specifically incorporating such a provision.\r\n</i></b></p><p><b><i>44. When the company is the offender, vicarious liability of the Directors\r\ncannot be imputed automatically, in the absence of any statutory provision\r\nto this effect. One such example is Section 141 of the Negotiable\r\nInstruments Act, 1881. In Aneeta Hada v. Godfather Travels &amp; Tours (P)\r\nLtd., (2012) 5 SCC 661, the Court noted that if a group of persons that\r\nguide the business of the company have the criminal intent, that would be\r\nimputed to the body corporate and it is in this backdrop, Section 141 of the\r\nNegotiable Instruments Act has to be understood. Such a position is,\r\ntherefore, because of statutory intendment making it a deeming fiction.\r\nHere also, the principle of “alter ego”, was applied only in one direction,\r\nnamely, where a group of persons that guide the business had criminal\r\nintent, that is to be imputed to the body corporate and not the vice versa.\r\nOtherwise, there has to be a specific act attributed to the Director or any\r\nother person allegedly in control and management of the company, to the&nbsp;effect that such a person was responsible for the acts committed by or on\r\nbehalf of the company.”</i></b></p><p><b>\r\n8.1 In the case of Maksud Saiyed v. State of Gujarat, (2008) 5 SCC\r\n668, in paragraph 13, it is observed and held as under:\r\n</b></p><p><b><i>“13. Where a jurisdiction is exercised on a complaint petition filed in terms\r\nof Section 156(3) or Section 200 of the Code of Criminal Procedure, the\r\nMagistrate is required to apply his mind. The Penal Code does not contain\r\nany provision for attaching vicarious liability on the part of the Managing\r\nDirector or the Directors of the Company when the accused is the\r\ncompany. The learned Magistrate failed to pose unto himself the correct\r\nquestion viz. as to whether the complaint petition, even if given face value\r\nand taken to be correct in its entirety, would lead to the conclusion that the\r\nrespondents herein were personally liable for any offence. The Bank is a\r\nbody corporate. Vicarious liability of the Managing Director and Director\r\nwould arise provided any provision exists in that behalf in the statute.\r\nStatutes indisputably must contain provision fixing such vicarious liabilities.\r\nEven for the said purpose, it is obligatory on the part of the complainant to\r\nmake requisite allegations which would attract the provisions constituting\r\nvicarious liability.”</i></b></p><p><b>8.2 As observed by this Court in the case of Pepsi Foods Ltd. v.\r\nSpecial Judicial Magistrate, (1998) 5 SCC 749 and even thereafter in\r\ncatena of decisions, summoning of an accused in a criminal case is a\r\nserious matter. Criminal Law cannot be set into motion as a matter of\r\ncourse. In paragraph 28 in Pepsi Foods Limited (supra), it is observed\r\nand held as under:\r\n“28. Summoning of an accused in a criminal case is a serious matter.\r\nCriminal law cannot be set into motion as a matter of course. It is not that\r\nthe complainant has to bring only two witnesses to support his allegations\r\nin the complaint to have the criminal law set into motion. The order of the&nbsp;Magistrate summoning the accused must reflect that he has applied his\r\nmind to the facts of the case and the law applicable thereto. He has to\r\nexamine the nature of allegations made in the complaint and the evidence\r\nboth oral and documentary in support thereof and would that be sufficient\r\nfor the complainant to succeed in bringing charge home to the accused. It\r\nis not that the Magistrate is a silent spectator at the time of recording of\r\npreliminary evidence before summoning of the accused. The Magistrate\r\nhas to carefully scrutinise the evidence brought on record and may even\r\nhimself put questions to the complainant and his witnesses to elicit\r\nanswers to find out the truthfulness of the allegations or otherwise and\r\nthen examine if any offence is prima facie committed by all or any of the\r\naccused.” </b></p><p><b>8.3 As held by this Court in the case of India Infoline Limited (supra),\r\nin the order issuing summons, the learned Magistrate has to record his\r\nsatisfaction about a prima facie case against the accused who are\r\nManaging Director, the Company Secretary and the Directors of the\r\nCompany and the role played by them in their respective capacities\r\nwhich is sine qua non for initiating criminal proceedings against them.\r\n&nbsp;<br></b></p><p><b>9. From the order passed by the learned Magistrate issuing the\r\nprocess against the respondents herein – accused nos. 1 to 8, there\r\ndoes not appear that the learned Magistrate has recorded his\r\nsatisfaction about a prima facie case against respondent nos. 2 to 5 and\r\n7 &amp; 8. Merely because respondent Nos. 2 to 5 and 7 &amp; 8 are the\r\nChairman/Managing Director/Executive Director/Deputy General\r\nManager/Planner &amp; Executor, automatically they cannot be held\r\nvicariously liable, unless, as observed hereinabove, there are specific\r\nallegations and averments against them with respect to their individual\r\nrole. Under the circumstances, the High Court has rightly dismissed the\r\nrevision applications and has rightly confirmed the order passed by the\r\nlearned Sessions Court quashing and setting aside the order passed by\r\nthe learned Magistrate issuing process against respondent nos. 1 to 8\r\nherein – original accused nos. 1 to 8 for the offences punishable under\r\nSections 427, 447, 506 and 120B read with Section 34 IPC<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b><br></p>', '9b1c53e01d87e74d357aae3878f7338c.jpeg', 'beb76b4b9f239295142baa630abf8909.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-27', 1, '', '', '2021-09-28 03:32:20', '2021-09-28 03:32:20'),
(1045, 'Di8lHzPxDofJYu0sZOVUXXLuo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Guns are part of martial race Kodavas. Exemption of Kodavas under the Arms Act is a reasonable classification. Karnataka High Court. ', '<p><b>Captain Chethan Y.K. vs Union of India and others&nbsp;<br>Writ Petition 11948 of 2021 decided on 22 September 2021<br>Justice Satish Chandra Sharma and Justice Sachin Shankar Magadum.</b></p><p><b>51. The history of Kodavas based upon the documents filed before this Court by all parties makes it very clear that Kodavas belong to martial Race.&nbsp;</b></p><p><b>53. All festivals including the village temple festivals of these people are not complete without worship and use of weapons, arms and ammunition.&nbsp;</b></p><p><b>68. The impugned notification does not violate Article 14 because the differentiation&nbsp;between Kodavas and other inhabitants of Coorg is intelligible.&nbsp;</b></p><p><b>71. It is nobody\'s case that Kodavas and Jamma tenure-holders can keep a weapon automatically without following the provisions as contained under the Arms Act, 1959 and there is no procedure prescribed by the same. A person has to apply for grant of exemption, a police verification is obtained, it is not granted to persons who are having criminal antecedents and after following&nbsp;a detailed and thorough procedure, the exemption certificate is granted.&nbsp;</b></p><p><b style=\"background-color: rgb(255, 255, 0);\">Judgment enclosed.</b></p>', '4641a95eecfd4e829ffc7b0f48f829e5.jpg', '5f767e40e483d51dc3bf80ec4a4b09b9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-28', 1, '', '', '2021-09-28 21:09:09', '2021-09-28 21:09:09'),
(1046, 'D7MlBpfAulucZEHMTK5cSRiV6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Workmen\'s Compensation Act, 1923.  Tractor-trailer combination is a goods carriage. Loader and unloader is entitled for compensation. Karnataka High Court.  ', '<p><b>Ajjegowda vs Latha and others.&nbsp;<br>Miscellaneous First Appeal 4842 of 2016 decided on 8 September 2021<br>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/409161/1/MFA4842-16-08-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/409161/1/MFA4842-16-08-09-2021.pdf</a></b></p><p><b>This appeal is filed by the Insured challenging the judgment and award dated 24.02.2016, passed in E.C.A.No.80&nbsp; of 2014 by the Principal Senior Civil Judge and Commissioner for Employees compensation, Hassan.&nbsp;</b></p><p><b>29. This Court would like to refer the Judgment of this Court in the case of National Insurance Company Limited v. Sri Maruthi and others reported in ILR 2011 KAR 4139, wherein, this Court taking into note of Workmen’s Compensation Act, 1923, particularly, Section 30(1), when the accident was occurred during the course of employment and the claimants claimed to be the coolies travelling in Tractor and Trailer, sustained injuries due to accident. Finding of the Workmen’s Compensation Commissioner is that the Insurer is liable to indemnify the owner as the Tractor-Trailer was a goods vehicle meant for carrying agricultural operations and the claimants being coolies under the owner having met with an accident, sustained injuries, insurer is liable to compensate the injured, the same has been questioned before this Court. This Court considering the definitions of “Tractor” &amp; “Trailer” – “Motor Vehicle” – “Goods” &amp; “Goods Carriage” discussing the same held that the combination of tractor-trailer is nothing short of a goods carriage. Therefore, when once it is held as goods carriage vehicle, by virtue of Section-II-I(1) of fully worded policy and also provisions of Section 147, the claim of the claimants on hand is covered. It is also held that the claimants were neither gratuitous passengers nor persons who were travelling in the tractor-trailer for the purpose other than agricultural operations. It is further held that depending upon the user of the vehicle whether for agricultural purpose or for commercial purpose, the liability of the insurer would be decided. When the intention of the Legislation was to cover compulsorily all the risk arising out of the use of the Motor Vehicle and that the liability of the insurer is co-extensive with that of the insured subject to Section 147(1)(b), coolies or employees are compulsorily covered. Therefore, the argument that Rule 100(6) r/w Rule 226 of the Karnataka Motor Vehicles Rules is relevant is rejected and the same will not authorize or permit the insurer to avoid the liability. It is further held that by reading Sections 147 and 149, it is clear that the Legislative intent was that the insurer has to compulsorily cover all the risks arising out of and use of Motor vehicle and the liability of the insurer is co-extensive with that of insured. However, this is subject to the limitations envisaged under Section 147(1)(b). It is further observed that the coolies who are employees carried in a goods vehicle are to be compulsorily covered under Section 147(1)(b).</b></p><p><b>32. In the case on hand also, it has to be noted that the very pleadings of the claimants that on the date of the accident, the deceased Malleshagowda was proceeding in the tractor- trailer as loader and unloader for loading sugarcane, which has been grown in the land of the insured and the insured, who appeared before the Court also did not object the same. He admitted that he was working as loader and unloader in the tractor from the last six months and the vehicle is also used for agricultural purpose not for any other purposes violating the conditions of the policy. The policy is a Miscellaneous and Special Type of Vehicles – Package Policy. When such being the case, the vehicle is combination of tractor-trailer is nothing short of a goods carriage. Once it is held as goods carriage vehicle, by virtue of Section-II-1(1) of fully worded policy and also provisions of Section 147, the claim of the claimants on hand is covered. The claimants in the present case have rightly approached the Workmen’s Commissioner i.e., subsequent to amendment, Employees’ Workmen Commissioner and the Commissioner held that the deceased was a coolie under the insured. In the present case also, the deceased was travelling in the tractor-trailer in order to load the sugarcane in the land&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">belonging to the insured, the same is nothing but a part and parcel of agricultural operations.</b></p><p><b>33. The contention of the Insurance Company is that the deceased was a gratuitous passenger cannot be accepted. The deceased was travelling for the purpose of agricultural operations not for any other purpose. Having considered the avocation of the deceased as a loader and unloader and in view of the principles laid down in the judgment of this Court referred supra, I am of the opinion that the Commissioner has committed an error in fastening the liability on the owner instead of the Insurance Company. Hence, it requires an interference of this Court. Hence, I answer issue No.(ii) as ‘affirmative’.</b></p><p><b><br></b></p><p><br></p>', 'd9de412200d7c36e113534ec649d52c0.jpg', '1f5114bf67618209ee1693b693f77265.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-28', 1, '', '', '2021-09-28 23:49:37', '2021-09-28 23:49:37'),
(1047, 'VAuhnLXnXEY6BUGckhbgTJ7AG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Child custody dispute between genetic and foster mother. \'Breastfeeding by mother needs to be recognized as an inalienable right of lactating mother traceable to Article 21\'- Karnataka High Court restores child custody to genetic mother.', '<p><b>Husna Banu vs State of Karnataka and others </b></p><p><b>Writ Petition 16729 of 2021 decided on 24 September 2021.</b></p><p><b>Judgement Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/409223/1/WP16729-21-24-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/409223/1/WP16729-21-24-09-2021.pdf</a></b></p><p><b>These two cases involve rival claims for the custody of a toddler between a genetic mother and a foster mother; this child is christened by the genetic parents as “Master Mohammed Arhaan” and later named by the foster mother as “ADWIK”. In a sense this  matter reminds of the Jewish King Solomon (1010-931  BCE)  who resolved such a dispute centuries ago and handed  the child to the true mother after wisely identifying her and sent the pseudo-mother to the gaol; however, that is not much the case here and  what  pleasantly  surprises the Court is the grace with which these two gentle women hailing from two different religious backgrounds conducted themselves during the course of proceedings.</b></p><p><b>5. The counsel for foster mother passionately argues for the dismissal of writ petition of the genetic parents and for allowing the one filed by his client; the gist of his argument is that: his client is absolutely innocent of the allegations made against her; she  is only  a victim of circumstances; she having fostered the child  all these months abundant with love, affection & care should retain & rear it; that the genetic mother already has two children whereas the foster mother has none; a child well fostered for long cannot be parted away to the genetic mother without causing enormous violence to it; in matters of custody, interest of the child is paramount and therefore the claims founded on genealogy, per se, do not merit favour; in support of his submission he cites episodes from Bhaagavatam and mentions about Devaki, i.e., the genetic mother of Lord Krishna, permitting </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Yashoda, i.e., the foster mother to retain custody  of  Infant Krishna.</b></p><p><b>(b) The trouble with the case at hand is that it is  of a kind not frequently recurring so as to enable any given Judge to profit merely by experience and thereby enable him to lay down thumb rules, especially when the elements involved are so complex; however a broadnorm that in the matters of child custody, the claim of the strangers should yield to that of the genetic  parents,  gains support from TEJASWINI GAUD vs. SHEKAR JAGADISH PRASAD TEWARI (2019) 7 SCC 42</b></p><p><b>(c)  In all civilized jurisdictions the rules of international law animate the norms of domestic law, unless they are inconsistent: vide JOLLY GEORGE VERGHESE vs. BANK OF COCHIN, (1980) 2 SCC 360; the principle of “the best interest of the child” is enshrined in the International Convention on the Rights of the Child, 1989; Article 3 (1) of this Convention provides:</b></p><p><b><i>\"…in all actions concerning children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration . . .”</i></b></p><p><b>Similarly, Article 7(1) of the Convention says:</b></p><p><b><i>“The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the  right  to  know  and  be cared for by his or her parents”.</i></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Article 8 (1) & (2) of the Convention provide for the State Parties to respect the right of child inter alia to preserve its identity, ‘name and family relations as recognized by </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">law’. It also provides that where a child is illegally deprived of some or all of the elements of  its  identity, State Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily its identity.</b><br></p><p><b>(d) Article 25 (2) of the Universal Declaration of Human Rights provides: “Motherhood and childhood are entitled to special care and assistance…”. Article 24(1) of the International Covenant on Civil and Political Rights (ICCPR, 1966) recognizes right of the child to the measures of protection as are required by its status as a minor and the correlative duty resting on the  shoulders  of its family, society and the State.  </b></p><p><b>(g) In the light of domestic law and the international law as briefly discussed above, breastfeeding needs to be recognized as an inalienable right of lactating mother; similarly, the right of the suckling infant for being breastfed too, has to be assimilated with mother’s right; arguably, it is a case of concurrent rights; this important attribute of motherhood, is protected under the umbrella of Fundamental Rights guaranteed under Article 21 of the Constitution of India; it is unfortunate that this pretty child for no fault remained un-breastfed, its lactating mother having had  no access to it till now; in a civilized society such things should never happen.</b></p><p><b>(h) The contention of learned counsel appearing for the foster mother that his client should be  permitted to retain the custody of the child consistent with what Devaki Maa allegedly did qua Yashoda  Maa,  as mentioned in Bhaagavatam, is bit difficult to countenance; no authoritative text of the episode is produced to show that there was any dispute of the kind between these two Women of Grace, in the era that  is long gone  by;  in  such  matters,  unsubstantiated episodes from some history or mythology do not much guide the decision making process; ordinarily, scriptures cannot be cited as precedents or as instruments having force of law, notwithstanding the light they throw when the path we tread is shrouded in darkness;  in  matters like this, scriptural texts are not treated as edicts of law, unless they are legislated expressly or by necessary implication or otherwise recognized; what a great American Judge of yester-century, Justice  Oliver  Wendell Holmes, Jr. had profoundly observed  in  Lochner v. New York 198 US 45 (1905) is worth reproducing:</b></p><p><b>It is not  impertinent  to  quote  the  poem  \'My Mother\' penned by a Victorian poetess, Ann Taylor (1782  -  1866) of the  \"Twinkle Twinkle Little Star\" fame; it touchingly expresses what  a  true  mother  means  to  a child:</b></p><p><b><i>\"Who sat and watched my infant head When  sleeping  on  my  cradle   bed   , And  tears  of   sweet   affection   shed? My Mother.</i></b></p><p><b><i>When pain and sickness made me cry, Who gazed upon my heavy eye,</i></b></p><p><b><i>And wept for fear that I should die? My Mother . . .\"</i></b></p><p><b>(j)<span style=\"white-space:pre\">	</span>The contention of counsel for the foster mother that she does not have any children whereas the genetic mother has already two at home and therefore, the custody of this child should be allowed to continue with his client, is ludicrous; children are not chattel for being apportioned between their genetic mother and a stranger, on the basis of their numerical abundance; the principle  of distributive justice which intends to bridge the gap between “haves and have nots” is not invocable, at least in this case; it is a matter of common knowledge consistent with out experience that a genetic mother treats all her children as being an integral part of  her body & soul, regardless of what the children do to her;  this contention of foster mother is abhorrent to the very notion of motherhood.</b></p><p><b>(k) The foster mother now being convinced of legitimacy & priority of the claim of genetic mother has filed a Memo dated 24.09.2021 in the open court which reads as under:</b></p><p><b>\"The Third Respondent, has this date handed over the custody of the child, \'Adwik\' to the petitioner herein. Therefore, the above case may be closed; handing over of custody may be taken note off in the interest of justice\"</b></p><p><b>She also gracefully delivered the custody of the child to its genetic parents; the genetic mother too, with equal grace, states that the foster mother may see the child whenever her heart so desires; such kind  gestures  coming from two women hailing from two different religious backgrounds, are marked by their rarity, nowadays; thus, this legal battle for the custody of the pretty child is drawn to a close with a happy note, once  for all.</b></p><p><b>Before parting with this matter, this Court places on record its deep appreciation for the able assistance rendered by its official Research Assistant-cum-Law Clerk, Mr. Faiz Afsar Sait and the Law Intern Mr. Rithvik Mathur.</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '0b391fba68e4ad4d1b2f1369950c5b6a.jpg', '45043d55eb41623f9d4958cb8b586c13.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-28', 1, '', '', '2021-09-29 02:30:04', '2021-09-29 02:31:45'),
(1048, 'GF9vIreCYkbS58NUsOmvbU2PM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Datta Peeta dispute. Government action in allowing Mujawar to perform \'paduka pooja\' and to light \'nanda deepa\' is violative of Article 25 of the Constitution. Karnataka High Court directs Government to reconsider the matter afresh. ', '<p><b>Sri. Guru Dattatreya Peeta Devasthana vs The State of Karnataka and others.<br>Writ Petition 18752 of 2018 decided on 28 September 2021<br>Judgment Link: </b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"https://karnatakajudiciary.kar.nic.in/judgements/WP-18752-2018.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/WP-18752-2018.pdf</a></b><br></p><p><b>50. Article 25 of the Constitution guarantees\r\nFreedom of Conscience and free profession, practice and\r\npropagation of religion. By the impugned order, firstly, the\r\nState have infringed upon the right of Hindu Community to\r\nhave the pooja and archana done in the manner as per\r\ntheir faith. Secondly, State have imposed upon the Mujawar\r\nto perform \'paduka pooja\' and to light \'nanda deepa\'\r\ncontrary to his faith. Both these acts amount to flagrant\r\nviolation of rights of both communities guaranteed by\r\nArticle 25 of the Constitution of India. </b></p><p><b>51. Though the versions of large number of devotees\r\nrecorded by the Endowment Commissioner including that of\r\nthe Mujawar who was working during 1975, demonstrate that both Hindus and Muslims were worshipping as per their\r\nrespective customs, the State Government have chosen to\r\naccept the High Level Committee\'s recommendation to\r\nreject Endowment Commissioner\'s Report. As recorded\r\nhereinabove, the High Level Committee Report is not free\r\nfrom the vice of bias. </b></p><p><b>52. The Constitution Bench of the Hon\'ble Supreme\r\nCourt of India, in M.Siddique Vs. Mahanth Suresh Das, the\r\nRam Janma Bhumi Temple case (2020)1 SCC 1 (para 809)  has held that faith is a\r\nmatter for the individual believer. Once the Court has\r\nintrinsic material to accept that the faith or belief is\r\ngenuine, it must defer to the belief of the worshipper. </b></p><p><b>53. Therefore, the impugned order is unsustainable\r\nin law for more than one reason:\r\n• Firstly, because, contrary to the stand taken before the\r\nHon\'ble Supreme Court of India that the Cabinet would\r\nconsider the pros and cons and take a decision, the\r\nState Government have delegated the consideration to\r\na High Level Committee;\r\n• Secondly because, the recommendation of the SubCommittee, has been incorrectly extracted in the\r\nimpugned order. The recommendation extracted gives\r\nan impression that the practices recommended are in\r\nconsonance with the order of this Court17, which is\r\nfactually incorrect because, the six recommendations\r\nrecorded in the impugned order are those contained in\r\nthe earlier Report of the Endowment Commissioner\r\ndated 25.02.1989 which has been quashed by this\r\nCourt. Therefore, the decision arrived at, is on an\r\nincorrect premise and hence vitiated; Thirdly because, the High Level Committee has\r\nmis-directed itself with regard to the 1991 Act, when\r\nthe issue in dispute has attained finality as per the\r\ndecree in O.S. No.25/1978;\r\n• Fourthly because, it is nobody\'s case that the place of\r\nworship is being converted. On the other hand, it is the\r\ncommon case of both communities that it is a place of\r\nworship for both Hindus and Muslims;\r\n• Fifthly, because, the High Level Committee Report is\r\nnot free from bias, as Shri. Rehamat Tarikere, one of its\r\nMembers has deposed before the Endowment\r\nCommissioner and the Committee has recommended\r\nrejection of his Report;\r\n• Sixthly, because, the impugned order infringes the right\r\nof both communities guaranteed under Article 25 of the\r\nConstitution by preventing Hindus from performing\r\npooja as per their faith and compelling the Mujawar to\r\noffer pooja contrary to his faith.</b></p><p><b>55. In the light of the above discussion, the question\r\nformulated by this Court at para 16 is answered in the\r\naffirmative. Resultantly, the impugned order is clearly\r\nunsustainable in law and liable to be quashed. Hence, the\r\nfollowing:</b></p><p><b>(a) Writ Petition is allowed.\r\n(b) The order dated 19.03.2018 passed by the first\r\nrespondent, State Government is quashed.\r\n(c) The matter is remitted to the State Government\r\nwith a direction to reconsider the matter afresh in\r\naccordance with law without reference to the Report of the\r\nHigh Level Committee. <br></b></p><p><b> </b><br></p>', 'ad58d7072fa06c68100dc45b2d6b1da1.jpg', '4ca7f855f1d9882734e0710e2632b49f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-28', 1, '', '', '2021-09-29 03:37:19', '2021-09-29 03:42:26'),
(1049, 'HUEWMopT119sE2YAdwRf9TAfJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Consumer Protection Act, 1986. Though surveyor\'s report is not the final word, consumer forum cannot subject the surveyor\'s report to forensic examination like civil court. Supreme Court.  ', '<p><b>Khatema Fibres Ltd vs New India Assurance Company Ltd and another<br>Civil Appeal 9050 of 2018 decided on 28 September 2021<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice Hemant&nbsp;Gupta and Justice V.&nbsp;Ramasubramanian<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2018/28530/28530_2018_11_1502_30395_Judgement_28-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/28530/28530_2018_11_1502_30395_Judgement_28-Sep-2021.pdf</a></b></p><p><b>32. It is true that even any inadequacy in the quality, nature and manner of performance which is required to be maintained by or under&nbsp; &nbsp;any&nbsp; &nbsp;law&nbsp; &nbsp;or&nbsp; which&nbsp; &nbsp;has&nbsp; &nbsp;been&nbsp; undertaken&nbsp; &nbsp;to&nbsp; &nbsp;be&nbsp; performed pursuant to a contract, will fall within the definition of the expression ‘deficiency’.&nbsp; &nbsp;But&nbsp; &nbsp;to&nbsp; &nbsp;come&nbsp; &nbsp;within&nbsp; &nbsp;the&nbsp; &nbsp;said&nbsp; &nbsp;parameter,&nbsp; &nbsp;the&nbsp; &nbsp;appellant should be able to establish (i) either that the Surveyor did not comply with the code of conduct in respect of his duties, responsibilities and other professional requirements as specified by the regulations made under the Act, in terms of Section 64UM(1A) of the Insurance Act, 1938, as it stood then; or (ii) that the insurer acted arbitrarily in rejecting the whole or a part of the Surveyor’s Report in exercise of the discretion available under the Proviso to section 64UM(2) of the Insurance Act, 1938.&nbsp;&nbsp;</b></p><p><b>33. Section 64UM (2) of the Insurance Act, 1938, before its amendment by Act 5 of 2015, mandated that no claim equal to or exceeding a sum of rupees twenty thousand only shall be admitted for payment unless the insurer&nbsp; &nbsp;had&nbsp; &nbsp;obtained&nbsp; &nbsp;a&nbsp; &nbsp;report&nbsp; &nbsp;from&nbsp; &nbsp;an&nbsp; &nbsp;approved&nbsp; &nbsp;surveyor&nbsp; &nbsp;or&nbsp; &nbsp;loss assessor.</b></p><p><b>35. This is why the law is settled that the surveyor’s report is not the last and final word. It has been held by this Court in several decisions, that the surveyor’s report is not so sacrosanct as to be incapable of being departed from.&nbsp;</b></p><p><b>36. The Insurance Act, 1938 even while assigning an important role for the&nbsp; &nbsp;surveyor,&nbsp; casts&nbsp; an&nbsp; &nbsp;obligation&nbsp; on&nbsp; &nbsp;him&nbsp; under&nbsp; sub­section&nbsp; &nbsp;(1A)&nbsp; of section 64UM6&nbsp; &nbsp; to comply with the code of conduct in respect of his duties, responsibilities and other professional requirements as specified by the regulations made under the Act.</b></p><p><b>37. Two things flow out of the above discussion, They are (i) that the surveyor is governed by a code of conduct, the breach of which may give raise to an allegation of deficiency in service; and (ii) that the discretion vested in the insurer to reject the report of the surveyor in whole or in part, cannot be exercised arbitrarily or whimsically and that if so done, there could be an allegation of deficiency in service.&nbsp;</b></p><p><b>38. A&nbsp; &nbsp;Consumer&nbsp; &nbsp;Forum&nbsp; &nbsp;which&nbsp; &nbsp;is&nbsp; &nbsp;primarily&nbsp; &nbsp;concerned&nbsp; &nbsp;with&nbsp; &nbsp;an allegation of deficiency in service cannot subject the surveyor’s report to forensic examination of its anatomy, just as a civil court could do.&nbsp; Once it&nbsp; &nbsp;is&nbsp; found&nbsp; that&nbsp; there&nbsp; was&nbsp; no&nbsp; inadequacy&nbsp; &nbsp;in&nbsp; the&nbsp; quality,&nbsp; nature and manner of performance of the duties and responsibilities of the&nbsp; &nbsp;surveyor,&nbsp; &nbsp;in&nbsp; &nbsp;a&nbsp; manner&nbsp; &nbsp;prescribed&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;Regulations&nbsp; &nbsp;as&nbsp; &nbsp;to their code of conduct and once it is found that the report is not based&nbsp; &nbsp;on&nbsp; &nbsp;adhocism&nbsp; &nbsp;or&nbsp; &nbsp;vitiated&nbsp; &nbsp;by&nbsp; &nbsp;arbitrariness,&nbsp; &nbsp;then&nbsp; &nbsp;the jurisdiction of the Consumer Forum to go further would stop.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p></p><p><br></p>', '14090cd21af8a6dbc6d578e64f8d3232.JPG', '1ea9d95647dd8f898cd0586d5b985e36.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-29', 1, '', '', '2021-09-29 19:16:09', '2021-09-29 19:16:09'),
(1050, 'vkcMN3cMlvhEb9kk8sFLR1iMR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'No instrumentality of the State or any litigant has a right to say that the order of the Court will not be complied with only because an ordinary copy of the order is supplied or that a certified copy is not supplied.\' Karnataka High Court. ', '<p><b>H.V.Rathnappa vs Dr. Richard Vicent D\'Souza<br>Contempt of Court Case 159 of 2021 decided on 24 March 2021<br>Chief Justice Abhay S. Oka and Justice Suraj Govindaraj<br>Judgement Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/376304/1/CCC159-21-24-03-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/376304/1/CCC159-21-24-03-2021.pdf</a></b></p><p><b>3....Paragraph 3 shows that the accused was under the impression that the Karnataka State Warehousing Corporation was required to comply with the order of this Court only after a certified copy of the said order is received. In paragraph 4, a grievance is made that along with the representation, a photocopy of the order was forwarded and not certified copy of the order.</b></p><p><b>4. The order breach of which is alleged required the respondent – accused to take a decision on the enquiry report submitted way back on 6th December 2016 within two months </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">from the date of receipt of a copy of the order. The period of two months started running from 12th October 2020. After receiving the letter dated 12th October 2020, after a gap of further two months, a notice was issued on 21st December 2020 calling for explanation from the complainant. Thereafter, the order dated 26th February 2021 has been passed. The accused has not bothered to tender apology for the delay.</b></p><p><b>5. The Karnataka State Warehousing Corporation is a public sector Corporation which was represented in the writ petition by an Advocate. After receiving an ordinary copy of the order of this Court, if the Corporation had any doubt about the genuineness of the same, the same could have been immediately cleared by having access to the website of this Court, where the order was available. Secondly, the said Corporation could have sought clarification from its Advocate, who appeared before this Court. No agency or instrumentality of the State or for that matter, any litigant has a right to say that the order of the Court will not be complied with only because an ordinary copy of the order is supplied or that a certified copy is not supplied.</b></p><p><b>6. In view of the belated compliance, no action deserves to be taken against the accused. However, there is no explanation for the delay in complying with the order of this Court. For that purpose, the respondent will have to be  saddled with costs quantified at Rs.10,000/-. It will be open for the Corporation to recover the costs amount from the officers, who are responsible for the delay.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '171f2bb4af4e21dd122d51b0701c1278.png', '0c996325d31e9985671d6be85356d424.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-29', 1, '', '', '2021-09-30 03:52:39', '2021-09-30 03:54:43'),
(1051, 'r1pwVWEmBIpb74HEX4d13Fhgo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Insolvency and Bankruptcy Code, 2016. Power of attorney holder who is granted proper authorisation can file application under Section 7 on behalf of the financial creditor. Supreme Court. ', '<p><b>Rajendra Narottamdas Sheth &amp; anr vs Chandra Prakash Jain &amp; anr<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Civil Appeal No.4222 of 2020 decided on 30 September 2021.<br>Judgment Link:&nbsp;</span><a href=\"https://main.sci.gov.in/supremecourt/2020/28422/28422_2020_5_1501_30567_Judgement_30-Sep-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/28422/28422_2020_5_1501_30567_Judgement_30-Sep-2021.pdf</a><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"https://main.sci.gov.in/supremecourt/2020/28422/28422_2020_5_1501_30567_Judgement_30-Sep-2021.pdf\" target=\"_blank\">&nbsp;</a></span></b></p><p><b>9. Initiation of the corporate insolvency resolution process\r\nby a financial creditor is dealt with under Section 7 of the\r\nCode. Section 7 (2) provides that the financial creditor shall\r\nmake an application in such form and manner and\r\naccompanied with such fee as may be prescribed. As per\r\nRule 4 of the Insolvency and Bankruptcy (Application to\r\nAdjudicating Authority) Rules, 2016 (hereinafter, ‘the 2016\r\nRules’), the financial creditor is required to make an\r\napplication for initiating the corporate insolvency resolution\r\nprocess against the corporate debtor under Section 7 of the\r\nCode in Form 1, accompanied with documents and records\r\nrequired therein. Form 1 is in a tabular form and the financial\r\ncreditor has to give particulars of the details sought. Further,\r\nthe Form is required to be signed by the “person authorised\r\nto act on behalf of the financial creditor”</b></p><p><b>10. The authorisation, in terms of the power of attorney,\r\ngiven by the Financial Creditor to Mr. Praveen Kumar Gupta\r\nwho has filed the application under Section 7 of the Code has\r\nbeen placed on record. Pursuant to the resolution passed by\r\nthe board of directors of the Bank on 06.12.2008, the power&nbsp;&nbsp;of attorney was executed by the general managers in 2011.\r\nBy way of the said power of attorney, Mr. Praveen Kumar\r\nGupta was appointed by the Bank to act as its constituted\r\nattorney with respect to “all the business and affairs of the\r\nBank and to conduct and manage and to assist in the\r\nconduct and management of all such businesses and affairs\r\nof the Bank, both within and outside India and to do all acts,\r\ndeeds and things necessary or proper for carrying on the\r\nbusiness and affairs of the Bank”. Further, Mr. Praveen Kumar\r\nGupta has also been authorised to “commence, prosecute,\r\nendorse, defend, answer and/or oppose any suit or other\r\nlegal proceedings including any civil or criminal proceedings\r\nin any Court or Tribunals and any demand touching any\r\nmatters in which the Bank may or may hereafter be\r\ninterested or concerned and also, … compromise, refer to\r\narbitration, abandon, submit to judgement or become nonsuited, in any such suits or proceedings, to appoint advocate,\r\nsolicitors and pleaders as occasion shall require and to make\r\nsign, execute, present and file all applications, plaints,\r\npetitions, written statements, vakalatnamas or any other\r\npapers expedient or necessary … to be made, signed,\r\nexecuted, presented or filed”.</b></p><p><b>11. The NCLAT in its judgment in Palogix Infrastructure\r\n(supra) held that a ‘power of attorney holder’ is not\r\ncompetent to file an application under Section 7 on behalf of\r\nthe financial creditor.,,,However.....The NCLAT was of the opinion that general authorisation\r\ngiven to an officer of the financial creditor by means of a\r\npower of attorney, would not disentitle such officer to act as\r\nthe authorised representative of the financial creditor while\r\nfiling an application under Section 7 of the Code, merely\r\nbecause the authorisation was granted through a power of attorney.</b></p><p><b> 12. In the present case, Mr. Praveen Kumar Gupta has been\r\ngiven general authorisation by the Bank with respect to all\r\nthe business and affairs of the Bank, including\r\ncommencement of legal proceedings before any court or\r\ntribunal with respect to any demand and filing of all\r\nnecessary applications in this regard. Such authorisation,\r\nhaving been granted by way of a power of attorney pursuant\r\nto a resolution passed by the Bank’s board of directors on\r\n06.12.2008, does not impair Mr. Gupta’s authority to file an\r\napplication under Section 7 of the Code. It is therefore clear\r\nthat the application has been filed by an authorised person&nbsp;on behalf of the Financial Creditor and the objection of the\r\nAppellants on the maintainability of the application on this\r\nground is untenable.&nbsp;<br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '1d5909c04df92682ae88d3c6b6f39fe7.JPG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-30', 1, '', '', '2021-10-01 01:00:15', '2021-10-01 01:00:15'),
(1052, '8e4IV2ZSG2MHDNsPqWodxsxYw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act. Non-filing of police complaint personally or pleading guilty for the alleged negligence can NOT be a ground for rejecting the claim petition for compensation by the Tribunal. Karnataka High Court. ', '<p><b>Akhil Hrishikesh Sharma vs Suresh S Rachannavar and another <br>Miscellaneous First Appeal 103572 of 2015 decided on 21 September 2021<br>Judgment Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/410282/1/MFA103572-15-21-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/410282/1/MFA103572-15-21-09-2021.pdf</a></b></p><p><b>21. The Tribunal declined to consider the case of the claimant only because he had not  personally filed  the complaint against the driver of  the  passenger tempo. This approach of the tribunal in the facts and circumstances of the case is unsustainable for the following reasons.</b></p><p><b>22. The principle object of lodging first information report from the point of view of the  informant is to set criminal law into  motion and from  the point of investigation authority is to obtain information about alleged criminal activity so as to be able to take suitable steps for tracing and brining to  book the guilty party [(1972)4 SCC  773  (SHEIKH HASIB  @   TABARK  VS.  STATE  OF   BIHAR].  It  is  also </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">settled law that there is no requirement in the law that FIR should be filed only by an eyewitness or that the informant must have some personal knowledge. All that requires is that the FIR must contain necessary ingredients of  an  offence as  it is  the basis on which the </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Police commence investigation. It is sufficient if it indicates that an offence has been committed.</b></p><p><b>23. One of the factors weighing against the claimant in rejection of his claim petition  is  the  Tribunal taking serious exception to the claimant personally not filing the complaint against the driver of passenger tempo and this purported lapse on  the  part  of the claimant has been the primary ground  for dismissal of the claim petition. </b></p><p><b>27. As regards the observation of the  Tribunal that the claimant has not personally given  the complaint, it is to be noted that  there  is  no  requirement in law for giving complaint personally. </b></p><p><b>28. The nature of injuries and the consequent condition of the claimant referred  to  above  would reveal that there was no possibility of claimant personally reverting and filing the complaint either immediately on the date of the accident or after the so called recovery from his ailment as reasoned by the Tribunal.</b></p><p><b>29. Unfortunately, the tribunal has not taken into consideration the aforesaid MLC- FIR at Exs.P7 and P8 given by the doctor on the very date of the accident. Obviously, the claimant could not be  expected  under the circumstance to personally follow up with the first information report given by the duty  doctor  to  the South Traffic Police, Camp, Belagavi. It was  the  duty  on the part of the concerned police to  have registered the case and taken up the investigation and failure on  the part of the police, cannot be faulted with the claimant.</b></p><p><b>31. The facts and circumstances in  the  case reveal that the counsel for the claimant had pleaded guilty of the offences charged  against the  claimant in the aforesaid charge sheet before the Lok  Adalat and had paid the fine of Rs.300 /- thereof in the absence of the claimant. This aspect of the matter has been taken note of by the Tribunal to hold that  there  was negligence on the part of the claimant disentitling him from making any claim. This reasoning of  the  tribunal is incorrect.</b></p><p><b>32. The tribunal ought not to  have  placed reliance solely on the complaint, FIR, charge sheet and order pleading guilty while considering the factum of </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">accident and the consequent negligence. The tribunal ought to have arrived at a conclusion on  appreciating  the pleading and other material evidence independently on the principles of preponderance of probability. </b></p><p><b>35. Thus, the Tribunal will have to assess the evidence before it independently of any findings of the Criminal Court. No implicit reliance can  be  placed on  the circumstance of pleading guilty before the Criminal Court to draw adverse inference in the case for determination of negligence and assessment of compensation, particularly when overwhelming material evidence is available on record.</b></p><p><b>36. In view of the aforesaid legal principles and from the holistic reading of the aforesaid facts coupled with the nature of injuries suffered by the claimant rendering him paralytic and he having been discharged as unfit to render his services, it is not difficult to comprehend that his counsel would have pleaded guilty on behalf of the claimant by paying fine thereof with an intention of giving quietus to the criminal case. That </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">alone cannot be the factor for consideration to deny the case of the claimant, when such act of pleading guilty  has taken place in the back  drop  of  the  first information report having been lodged by the  duty doctor as per Ex. P7 and during the pendency of  the claim petition before the Tribunal. This aspect of the matter has not been taken into consideration by the tribunal.</b></p><p><b>38....The tribunal ought not to have rejected the petition of  the  claimant, without independently assessing the fact and evidence made available by the parties.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '89fd44239353bb50eb384bc3cdcc44d2.JPG', '1d38187c71ee830740a3aa32f36d087a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-09-30', 1, '', '', '2021-10-01 04:00:45', '2021-10-01 04:01:32');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1053, 'hh4eA2cSFvkTagRdqYFiMFiOs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Production of alleged false caste certificate to seek employment does NOT attract the provisions of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. Karnataka High Court. ', '<h5><b>T. K Susheela vs The State of Karnataka and another <br></b><b>Criminal Appeal 1361 of 2021 decided on 1 October 2021.<br></b><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/415568/1/CRLA1361-21-01-10-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/415568/1/CRLA1361-21-01-10-2021.pdf<br></a></b><b>This is an appeal filed under section 14A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. The appellant is the accused in Crime No. 291/2020 registered by the Vemagal police, Kolar Taluk, for the offences punishable under sections 198, 420, 465, 468, 471 of IPC and section 3(1)(ix) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act.  By order dated 26.8.2021 the Special Court rejected the appellant’s application for anticipatory bail under section 438 Cr.P.C and hence this appeal.<br></b><b>3. The FIR shows that the appellant belonging to Vokkaliga caste married one Venkatachalapathi who belongs to caste Adi-dravida grouped  under scheduled caste. The allegations are that when the appellant applied for the post of Primary School Teacher in the year 1998, she claimed reservation under scheduled caste category by producing false certificate. The Tahsildar of Kolar Taluk  confirmed that he did not issue any certificate to the appellant that she belonged to scheduled caste. Although she was selected under general merit category, FIR came to be registered against her for producing false certificate.<br></b><b>7. Having heard the arguments, it is to be stated that section 3(1)(q) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act [3(1) (ix as it stood) before amendment] reads : -<br></b><b><i>“3. Punishments for offences of atrocities<br></i></b><b><i>(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -<br></i></b><b><i>(q) gives any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a member of a<br></i></b><b><i>Scheduled Caste or a Scheduled Tribe.<br></i></b><b><i>shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.”<br></i></b><b>8.If this section is read, it becomes clear that false or frivolous information should have been given to a public servant to cause that public servant to use his authority for causing injury or annoyance to a member of a scheduled caste or scheduled tribe. That means, a public servant should take action against a member of scheduled caste or scheduled tribe upon a false or frivolous information given by a person who does not belong to scheduled caste or scheduled tribe, and such action should result in injury or annoyance to a member of scheduled caste or scheduled tribe.<br></b><b>9. In this case, the ingredient to bring the whole case under section 3(1)(q) is conspicuously absent. If it is the case of the prosecution that a false caste certificate was produced by the appellant for securing a government employment, she may be prosecuted for producing a false document. But, registration of FIR for the offence under section 3(1)(q) of the Atrocities Act is not permitted. Therefore as has been held by the Supreme Court in the case of Prathvi Raj Chauhan vs Union of India [2020 SCC Online SC 159], there are no materials to hold that offence under the Atrocities Act has been committed. Section 18 does not apply as a bar for granting anticipatory bail in these circumstances. Moreover, the appellant is a woman and her presence can be secured at any time if at all her presence is necessary for investigation. In this view,  the appellant is entitled to anticipatory bail. The Special Court has missed this aspect. Hence, the following :<br></b><b>Appeal is allowed</b></h5><h1><font color=\"#202124\" face=\"Google Sans, arial, sans-serif\"><span style=\"font-size: 24px;\"></span></font><font color=\"#202124\" face=\"Google Sans, arial, sans-serif\"><span style=\"font-size: 24px;\"></span></font></h1>', 'd1791d0d6f583926c1e57747a725e700.jpg', '05aeb77ef6a122493b460a58dae7a6d7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-07', 1, '', '', '2021-10-01 21:35:07', '2021-11-07 18:39:37'),
(1054, 'MfPnsXBbOlvpKV6KOXRO2t5Ul', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Trademark. Authoritative judgment of the Karnataka High Court on \'passing off\', \'infringement\' \'distinctiveness\' and \'deceptive similarity\' ', '<p><b>ITC Limited vs CG Goods (India) Pvt Limited. <br>Commercial Appeal 105 of 2021 decided on 28 September 2021. <br>Justice Aravind Kumar and Justice Pradeep Singh Yerur <br>Judgment Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/411133/1/COMAP105-21-28-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/411133/1/COMAP105-21-28-09-2021.pdf</a></b></p><p><b>This is a plaintiffs appeal in a suit for passing off and copyright infringement, challenging the common order dated 22.06.2021 passed by LXXXIV  Additional City Civil and Sessions Judge, Commercial Court, Bengaluru  (for  short  ‘trial  judge’)  on  I.A.Nos.I  to  III  in O.S.No.177/2021,  allowing  the  defendant’s  application (I.A III) for vacation of ex-parte interim order and refusing to grant the relief of temporary injunction on the applications (I.A.No.I and I.A.II) filed by the plaintiff.</b></p><p><b>22.<span style=\"white-space:pre\">	</span>Professor  Christopher  Wadlow\'s  ‘The  Law  of Passing-off’1      is    regarded    to    be    the    only    specialist practitioner\'s reference work dealing with the common law torts of unfair competition by misrepresentation, namely passing-off. In his book,  the  author  finds  that, the plaintiff, in an action for passing off has this unique advantage, as compared to the plaintiff  in  an infringement action, in that he  is  ‘given  complete freedom in asserting what distinguishes his goods from others. He is not put to an election, as in the case of registered trade marks, which has to be made before any individual competitor is in his sights 2. The availability of ‘choice’  in  asserting  what  makes  the  plaintiffs  product distinctive to him has not been free from misuse,  he  notes. The distinctive features in the plaintiffs goods are claimed in such a way ‘so as to fit the facts of the case in hand rather than to identify the features which either the public or the claimant really regard as most significant.’ This observation of the learned commentator is of particular significance in the facts of the present case.</b></p><p><b>27.<span style=\"white-space:pre\">	</span>Professor Wadlow claims that term ‘distinctive’ has a meaning of its own, in the legal sense, which does not coincide with the ordinary use of the term in common parlance. In its legal sense, a name, mark or get-up can be said to be distinctive ‘if it denotes the goods of the claimant to the exclusion of all others’. What plaintiff claims  to be distinctive may  be ‘distinctive in fact’ but the plaintiff cannot have the final say on what is distinctive in law. </b></p><p><b>39.<span style=\"white-space:pre\">	</span>It is an unrivalled proposition that the “classical trinity” of goodwill, misrepresentation and damage, as formulated by Lord Oliver in RECKITT & COLMAN V BORDEN4, form the three essential elements of an action for passing-of. The entire basis of an action for the tort of passing-off lies in the making of a misrepresentation by the defendant which is calculated to cause damage to the business or goodwill of the claimant. The design that a typical form of misrepresentation generally takes is for the defendant to adopt that feature of the plaintiffs mark which the ordinary purchaser is most likely to associate or use to identify the goods as that of a plaintiff. In that sense, the defendant, by adopting a mark already distinctive of the claimant, tries to encash on the goodwill of the plaintiff and thereby causes ‘damage’ to it. The misrepresentation has to be a ‘material’ one for it to be actionable.  The  law  of  passing  off,  as  held  in  Payton’s case supra, is not a general tort of misappropriation or  of “unfair copying”. </b></p><p><b>Therefore, in practical terms, the misrepresentation must be believed by those to whom it is communicated [through word marks, visual marks, labels or the entire get up as a whole], and such persons must be likely to act in reliance of the supposed misrepresentation. As we have noted above, persons are likely to act in reliance of those features of a plaintiffs product which is said to be ‘distinctive’  of   it   in  the  legal   sense.   Hence,   it   can  be concluded here that the question of distinctiveness and that of misrepresentation are not independent of each other but are strongly interdependent and are always capable of interacting with each other. This conclusion of ours is supported by the general rule that was expressed by Lord Oliver in the Jif Lemon case, Reckitt & Colman v Borden</b></p><p><b>We now bring our focus back to the main question of whether the plaintiff has been able to make out a ‘prima facie’ case that the defendant is liable for making a material representation of the distinctive feature used in its wrapper. On a consideration of the principles laid down in leading authorities5, the test to determine  ‘deceptive  resemblance’  is  essentially  decided by asking two questions; </b></p><p><b>1. Who are the persons whom the resemblance must be likely to deceive or confuse? In other words, who is the hypothetical purchaser we must  have in mind, from whose lens we are supposed to estimate the likelihood of deception?</b></p><p><b>2.  What  are  the  ‘rules  of  comparison’ that must be adopted in guiding this exercise of whether deceptive resemblance exists?</b></p><p><b>45.<span style=\"white-space:pre\">	</span>In NATIONAL  CARBON  CO\'S   CASE8, Baguley J. said the eye of the judge is the final arbiter, but the Judge must not use, if the expression be allowed, his own eyes; he has got to look at the articles with the eyes of the public who may be expected to buy those articles, especially when, the people who buy those articles include people of all classes including many persons living in the jungle, uneducated, illiterate </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and<span style=\"white-space:pre\">	</span>who<span style=\"white-space:pre\">	</span>may<span style=\"white-space:pre\">	</span>be<span style=\"white-space:pre\">	</span>regarded<span style=\"white-space:pre\">	</span>as<span style=\"white-space:pre\">	</span>equivalent<span style=\"white-space:pre\">	</span>to<span style=\"white-space:pre\">	</span>the incautious, ignorant, or unwary up-country purchasers.</b></p><p><b>46.<span style=\"white-space:pre\">	</span>Once the relevant public is defined, what we can infer from a reading of the authorities highlighted above is that, the standard to be adopted is that of purchasers using ordinary caution, which in practice is likely to tend towards the incautious or unwary unless the goods are major purchases. As invented by Foster J. in MORNING STAR VS EXPRESS NEWSPAPERS9, if</b></p><p><b>only  a  ‘moron  in  a  hurry’  can  be  said  to  misled,  then that is not sufficient for establishing the likelihood of deception.  In  Payton’s  case  supra,  it  has  been  held  that the hypothetical purchaser must be assumed to be aware of what makes the plaintiffs product distinctive in the market and to expect that the plaintiff would not be the only person who would be supplying the goods or services in question. With this background, we are clear on the standard of reference that must be applied from the hypothetical purchaser\'s point of view.</b></p><p><b>66.<span style=\"white-space:pre\">	</span>Very few traders, if any, still employ get-up as their single or primary means of indicating the origin of their products and services. What matters, though, is how customers really identify competing items. It is not unusual to find customers choose items from supermarket shelves based on some component of the overall design as well as the name. Identifying the particular visual cues on which the customer relies is what the court will have to carefully judge. In the absence of data and evidence, court will have to take a prima facie view based on all surrounding or attendant circumstances. Though it is a market reality for consumers to rely on verbal marks (brand names, sub- brands) rather than visual marks (labels, get up, logos) in a composite mark, we should not be taken to say that, in every case of this kind, the similarities in get-up is of relatively lesser importance than brand names/identities. In certain circumstances, as seen in cases discussed above, the Courts have injuncted defendants from using deceptively similar get-up notwithstanding the use of sharply distinctive brand names. In general, therefore, it would not be an easy task for a plaintiff to establish a case of passing off by \"get up\" alone, especially at the interlocutory stage, unless the resemblance between the goods is so close that it can hardly have occurred except by deliberate imitation.</b></p><p><b>84.<span style=\"white-space:pre\">	</span>In the light of discussion made herein above, we are of the considered view that order of learned trial Judge dismissing the applications filed by the plaintiff for grant of temporary injunction deserves to be affirmed.</b></p><p><b>(i)<span style=\"white-space:pre\">	</span>Appeal is dismissed.</b></p>', '22a0c9e95f94a51b8b5e60195715969a.JPG', 'f99662e009ff5c36118dc7fc0e9b5117.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-01', 1, '', '', '2021-10-01 23:26:17', '2022-02-21 02:50:18'),
(1343, 'rOCQqam2SJpmWl1XtkyaqNAEL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for partition. Appellate court can grant relief even to non-appealing parties/plaintiffs since a defendant can ask the Court to transpose him as a plaintiff and a plaintiff can ask for being transposed as a defendant. Supreme Court. ', '<p><b>Azgar Barid and others vs Mazambi and others&nbsp;<br>Civil Appeal 249 of 2020 decided on 21 February 2022<br>Justice L. Nageswara Rao and Justice B.R. Gavai<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2009/12584/12584_2009_35_1501_33542_Judgement_21-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2009/12584/12584_2009_35_1501_33542_Judgement_21-Feb-2022.pdf</a></span><br></b></p><p><b>12. We will first deal with the objection of the appellant that since plaintiff Nos.4 to 8, whose claim was denied by the trial court and who had not challenged the same by way of appeal, are not entitled to relief in the second appeal.&nbsp; This Court in the cases of Bhagwan Swaroop and Others v. Mool Chand and Others (1983) 2 SCC 132 and&nbsp; Dr.&nbsp; P.&nbsp; Nalla&nbsp; &nbsp;Thampy&nbsp; &nbsp;Thera&nbsp; &nbsp;v.&nbsp; &nbsp;B.L.&nbsp; &nbsp;Shanker and Others 1984 (Supp) SCC 631, has held that in a suit for partition, the position of the plaintiff and the defendant can be interchangeable.&nbsp; Each party adopts the same position with the other parties.&nbsp; It has been&nbsp; further&nbsp; &nbsp;held&nbsp; &nbsp;that&nbsp; &nbsp;so&nbsp; &nbsp;long&nbsp; &nbsp;as&nbsp; &nbsp;the&nbsp; &nbsp;suit&nbsp; &nbsp;is&nbsp; &nbsp;pending,&nbsp; &nbsp;a defendant can ask the Court to transpose him as a plaintiff and a plaintiff can ask for being transposed as a defendant.</b></p><p><b>13. This Court in the case of Chandramohan Ramchandra Patil&nbsp; and&nbsp; Others&nbsp; &nbsp;v.&nbsp; &nbsp;Bapu&nbsp; Koyappa&nbsp; Patil&nbsp; (Dead)&nbsp; &nbsp;Through LRs and Others (2003) 3 SCC 552, has held thus: </b></p><p><b><i>“14. Order 41 Rule 4 of the Code enables reversal of the decree by the court in appeal at the instance of one or some of the plaintiffs appealing and it can do so in favour of even non­appealing plaintiffs. As a necessary consequence such reversal of the decree can be against the interest of the defendants vis­àvis non­appealing plaintiffs. Order 41 Rule 4 has to be read with Order 41 Rule 33. Order 41 Rule 33 empowers the appellate court to do complete justice between the parties by passing such order or decree which ought to have been passed or made although not&nbsp; &nbsp;all&nbsp; &nbsp;the&nbsp; &nbsp;parties&nbsp; &nbsp;affected&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;decree&nbsp; &nbsp;had appealed. </i></b></p><p><b><i>15. In our opinion, therefore, the appellate court by invoking Order 41 Rule 4 read with Order 41 Rule 33 of the Code could grant relief even to the nonappealing&nbsp; &nbsp;plaintiffs&nbsp; &nbsp;and&nbsp; &nbsp;make&nbsp; &nbsp;an&nbsp; &nbsp;adverse&nbsp; order against all the defendants and in favour of all the plaintiffs. In such a situation, it is not open to urge on&nbsp; &nbsp;behalf&nbsp; of&nbsp; the&nbsp; defendants&nbsp; that&nbsp; the&nbsp; decree&nbsp; of dismissal&nbsp; &nbsp;of&nbsp; &nbsp;suit&nbsp; &nbsp;passed&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;trial&nbsp; &nbsp;court&nbsp; &nbsp;had become&nbsp; &nbsp;final inter&nbsp; &nbsp;se between&nbsp; &nbsp;the&nbsp; &nbsp;non­appealing plaintiffs and the defendants.”</i></b></p><p><b>14. In that view of the matter, we find that the contention raised on behalf of the appellant with regard to plaintiff Nos.4 to 8 being not entitled to relief in the second appeal on the ground that they have not challenged the judgment and decree of&nbsp; &nbsp;the&nbsp; &nbsp;trial&nbsp; &nbsp;court&nbsp; &nbsp;before&nbsp; &nbsp;the&nbsp; &nbsp;First&nbsp; &nbsp;Appellate&nbsp; &nbsp;Court,&nbsp; &nbsp;is&nbsp; &nbsp;not sustainable.&nbsp; &nbsp;As&nbsp; &nbsp;held&nbsp; &nbsp;by&nbsp; &nbsp;this&nbsp; &nbsp;Court&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;case&nbsp; &nbsp;of Chandramohan&nbsp; &nbsp;Ramchandra&nbsp; &nbsp;Patil&nbsp; (supra), the trial court could grant relief even to the non­appealing plaintiffs and make an adverse order against all the defendants and in favour of all the plaintiffs.&nbsp; Merely because the trial court had not granted relief in favour of plaintiff Nos.4 to 8, would not come in their way in the High Court allowing their claim</b></p>', '84160a5b3b6d866e28272fd7bcdb4838.jpg', 'f50dc2e1c576358f0a620fe6e1322942.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-21', 1, '', '', '2022-02-22 02:12:49', '2022-02-22 02:12:49'),
(1055, 'mukC1V1rjjlQ3ux4E9q3Ux1qm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'In a contempt jurisdiction, the court can NOT travel beyond the original judgment or issue supplementary or incidental directions. Supreme Court reiterates.', '<p><b>Senthur and another vs M. Vijaykumar IAS.<br>Contempt Petition (Civil) 638 of 2017 decided on 1 October 2021<br>Justice L. Nageswara Rao and Justice B.R. Gavai.&nbsp;<br>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2016/41161/41161_2016_35_1501_30497_Judgement_01-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2016/41161/41161_2016_35_1501_30497_Judgement_01-Oct-2021.pdf</a></b></p><p><b>13. Shri&nbsp;Vaidyanathan&nbsp;relied&nbsp;on&nbsp;the&nbsp;following&nbsp;judgments&nbsp;of\r\nthis&nbsp;Court&nbsp;in&nbsp;support&nbsp;of&nbsp;his&nbsp;submissions&nbsp;that,&nbsp;in&nbsp;contempt\r\nproceedings,&nbsp; the &nbsp; Court &nbsp; cannot &nbsp; travel &nbsp; beyond &nbsp; the &nbsp; original\r\njudgment&nbsp;and&nbsp;order.\r\nJhareswar &nbsp; Prasad &nbsp; Paul &nbsp; and &nbsp; Another &nbsp; v. &nbsp; Tarak &nbsp; Nath\r\nGanguly &nbsp; and &nbsp; Others&nbsp;(2002) 5 SCC 352 , &nbsp;Midnapore &nbsp; Peoples’ &nbsp; Coop. &nbsp; Bank\r\nLimited &nbsp;and &nbsp;Others &nbsp;v. &nbsp;Chunilal &nbsp;Nanda &nbsp;and &nbsp;Others (2006)&nbsp;5&nbsp;SCC&nbsp;399, &nbsp;V.M.\r\nManohar &nbsp; Prasad &nbsp; v. &nbsp; N. &nbsp; Ratnam &nbsp; Raju &nbsp; and &nbsp; Another&nbsp;(2004)&nbsp;13&nbsp;SCC&nbsp;610&nbsp; and\r\nSudhir &nbsp;Vasudeva, &nbsp; Chairman &nbsp;and &nbsp;Managing &nbsp;Director, &nbsp; Oil\r\nand &nbsp; Natural &nbsp; Gas &nbsp; Corporation &nbsp; Limited &nbsp; and &nbsp; Others &nbsp; v. &nbsp; M.\r\nGeorge&nbsp;Ravishekaran&nbsp;and&nbsp;Others&nbsp;</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(2014)&nbsp;3&nbsp;SCC&nbsp;373</b></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">.&nbsp;</b></p><p><b>14. There&nbsp;can&nbsp;be&nbsp;no&nbsp;quarrel&nbsp;with&nbsp;the&nbsp;proposition&nbsp;that&nbsp;in&nbsp;a\r\ncontempt &nbsp; jurisdiction, &nbsp; the &nbsp; court &nbsp; will &nbsp; not &nbsp; travel &nbsp; beyond &nbsp; the\r\noriginal&nbsp;judgment&nbsp;and&nbsp;direction;&nbsp;neither&nbsp;would&nbsp;it&nbsp;be&nbsp;permissible\r\nfor &nbsp; the &nbsp; court &nbsp; to &nbsp; issue &nbsp; any &nbsp; supplementary &nbsp; or &nbsp; incidental\r\ndirections,&nbsp;which&nbsp;are&nbsp;not&nbsp;to&nbsp;be&nbsp;found&nbsp;in&nbsp;the&nbsp;original&nbsp;judgment&nbsp;and &nbsp; order. &nbsp; The &nbsp; court &nbsp; is &nbsp; only &nbsp; concerned &nbsp; with &nbsp; the &nbsp; wilful &nbsp; or\r\ndeliberate &nbsp; non­compliance &nbsp; of &nbsp; the &nbsp; directions &nbsp; issued &nbsp; in &nbsp; the\r\noriginal&nbsp;judgment&nbsp;and&nbsp;order.</b><br></p>', '96c04d41074d2019bab0804a6dad2d37.jpeg', 'd6eb61f3ed45a8e42e00cfd7baab37fa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-02', 1, '', '', '2021-10-02 16:24:25', '2021-10-02 16:24:25'),
(1056, '3E5pHYbaIZYHzAZxbZp3kRzzg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Unregistered family settlement can be used as evidence of any collateral transaction. However, such collateral transaction should not itself be one which must be effected by a registered document. Supreme Court. ', '<p><b>Korukonda Chalapathi Rao &amp; another vs Korukonda Annapurna Sampath Kumar<br>Civil Appeal 6141 of 2021 decided on 1 October 2021<br>Justice K.M.Joseph and Justice S. Ravindra Bhat&nbsp;<br>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2016/29076/29076_2016_40_1501_30501_Judgement_01-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2016/29076/29076_2016_40_1501_30501_Judgement_01-Oct-2021.pdf</a></b></p><p><b>14. There is a long line of judgments of this court\r\ndealing with the question as to whether a family\r\narrangement is compulsorily registrable. We need\r\nonly refer to the case of Kale v. Dy. Director of\r\nConsolidation3. This Court has summed up the\r\nessentials of the family settlement in the following\r\nproposition:&nbsp;<br></b></p><p><b><i>“(1) The family settlement must be a\r\nbona fide one so as to resolve family\r\ndisputes and rival claims by a fair and\r\nequitable division or allotment of\r\nproperties between the various members of\r\nthe family;\r\n</i></b></p><p><b><i>(2) The said settlement must be\r\nvoluntary and should not be induced by\r\nfraud, coercion or undue influence;\r\n</i></b></p><p><b><i>(3) The family arrangement may be even\r\noral in which case no registration is\r\nnecessary;&nbsp;<br></i></b></p><p><b><i>(4) It is well settled that\r\nregistration would be necessary only if&nbsp;the terms of the family arrangement are\r\nreduced into writing. Here also, a\r\ndistinction should be made between a\r\ndocument containing the terms and\r\nrecitals of a family arrangement\r\nmade under the document and a mere\r\nmemorandum prepared after the family\r\narrangement had already been made either\r\nfor the purpose of the record or for\r\ninformation of the court for making\r\nnecessary mutation. In such a case the\r\nmemorandum itself does not create or\r\nextinguish any rights in immovable\r\nproperties and therefore does not fall\r\nwithin the mischief of Section 17(2) of\r\nthe Registration Act and is, therefore,\r\nnot compulsorily registrable;&nbsp;<br></i></b></p><p><b><i>(5) The members who may be parties to\r\nthe family arrangement must have some\r\nantecedent title, claim or interest even\r\na possible claim in the property which is\r\nacknowledged by the parties to the\r\nsettlement. Even if one of the parties to\r\nthe settlement has no title but under the\r\narrangement the other party relinquishes\r\nall its claims or titles in favour of such\r\na person and acknowledges him to be the\r\nsole owner, then the antecedent title\r\nmust be assumed and the family\r\narrangement will be upheld and the courts\r\nwill find no difficulty in giving assent\r\nto the same;<br></i></b></p><p><b><i>(6) Even if bona fide disputes, present\r\nor possible, which may not involve legal\r\nclaims are settled by a bona fide family\r\narrangement which is fair and equitable\r\nthe family arrangement is final and\r\nbinding on the parties to the\r\nsettlement.”&nbsp;</i></b></p><p><b>26...<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The\r\nunregistered document can be used as evidence of any\r\ncollateral transaction. This is however subject to the\r\ncondition that the said collateral transaction should\r\nnot itself be one which must be effected by a registered\r\ndocument.</span></b></p><p><b>33. If we apply the test as to whether the Khararunama\r\nin this case by itself ‘affects’, i.e., by itself\r\ncreates, declares, limits or extinguishes rights in the\r\nimmovable properties in question or whether it merely\r\nrefers to what the appellants alleged were past\r\ntransactions which have been entered into by the\r\nparties, then, going by the words used in the document,\r\nthey indicate that the words are intended to refer to\r\nthe arrangements allegedly which the parties made in\r\nthe past. The document does not purport to by itself\r\ncreate, declare, assign, extinguish or limit right in\r\nproperties. Thus, the Khararunama may not attract\r\nSection 49(1)(a) of the Registration Act.&nbsp;<i><br></i></b></p><p><b>34. As far as Section 49(1)(c) of the Registration Act\r\nis concerned, it provides for the other consequence of\r\na compulsorily registrable document not being so\r\nregistered. That is, under Section 49(1)(a), a\r\ncompulsorily registrable document, which is not\r\nregistered, cannot produce any effect on the rights in\r\nimmovable property by way of creation, declaration,\r\nassignment, limiting or extinguishment. Section\r\n49(1)(c) in effect, reinforces and safeguards against&nbsp;the dilution of the mandate of Section 49(1)(a). Thus,\r\nit prevents an unregistered document being used ‘as’\r\nevidence of the transaction, which ‘affects’ immovable\r\nproperty. If the Khararunama by itself, does not\r\n‘affect’ immovable property, as already explained,\r\nbeing a record of the alleged past transaction, though\r\nrelating to immovable property, there would be no\r\nbreach of Section 49(1)(c), as it is not being used as\r\nevidence of a transaction effecting such property.\r\nHowever, being let in evidence, being different from\r\nbeing used as evidence of the transaction is pertinent Thus, the transaction\r\nor the past transactions cannot be proved by using the\r\nKhararunama as evidence of the transaction. That is,\r\nit is to be noted that, merely admitting the\r\nKhararunama containing record of the alleged past\r\ntransaction, is not to be, however, understood as\r\nmeaning that if those past transactions require\r\nregistration, then, the mere admission, in evidence of\r\nthe Khararunama and the receipt would produce any legal\r\neffect on the immovable properties in question.&nbsp;<i><br></i></b></p><p><b>35. As far as stamp duty goes, on our finding regarding\r\nthe nature of the document, viz., Khararunama, being\r\nrecord of the alleged transactions, it may not require\r\nto be stamped.&nbsp;<i><br></i></b></p><p><b><i><br></i></b></p><p><b><i><br></i></b><br></p>', 'dbff7edcd592f0b63db99d56c0ed4a06.JPG', '2280fac873df6d2419d7715601bbbff4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-02', 1, '', '', '2021-10-02 23:59:59', '2021-10-02 23:59:59'),
(1057, 'qnLjLFiX3XmqPjVVpoVFKciV0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'DNA tests impinge upon right of privacy of an individual and has major societal repercussion.  Where other evidence is available, court should ordinarily refrain from ordering DNA Test. Supreme Court. ', '<p><b>Ashok Kumar vs Raj Gupta and others <br>Civil Appeal 6153 of 2021 decided on 1 October 2021<br>Justice R. Subhash Reddy and Justice Hrishikesh Roy. <br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/16194/16194_2019_42_1503_30503_Judgement_01-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/16194/16194_2019_42_1503_30503_Judgement_01-Oct-2021.pdf</a></b></p><p><b>11.1 In circumstances where other evidence is available to\r\nprove or dispute the relationship, the court should\r\nordinarily refrain from ordering blood tests. This is because such tests impinge upon the right of privacy of an\r\nindividual and could also have major societal repercussions.\r\nIndian law leans towards legitimacy and frowns upon\r\nbastardy. The presumption in law of legitimacy of a child\r\ncannot be lightly repelled. This Court, in Kamti Devi v.\r\nPoshi Ram <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2001(5) SCC 311</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">, while determining the question of standard of\r\nproof required to displace the presumption in favor of\r\npaternity of child born during subsistence of valid marriage\r\nheld:</span></b></p><p><b><i>“10. We may remember that Section 112 of the\r\nEvidence Act was enacted at a time when the\r\nmodern scientific advancements with\r\ndeoxyribonucleic acid (DNA) as well as\r\nribonucleic acid (RNA) tests were not even in\r\ncontemplation of the legislature. The result\r\nof a genuine DNA test is said to be\r\nscientifically accurate. But even that is not\r\nenough to escape from the conclusiveness of\r\nSection 112 of the Act e.g. if a husband and\r\nwife were living together during the time of\r\nconception but the DNA test revealed that the\r\nchild was not born to the husband, the\r\nconclusiveness in law would remain\r\nirrebuttable. This may look hard from the\r\npoint of view of the husband who would be\r\ncompelled to bear the fatherhood of a child of\r\nwhich he may be innocent. But even in such a\r\ncase the law leans in favor of the innocent\r\nchild from being bastardised if his mother and\r\nher spouse were living together during the\r\ntime of conception. Hence the question\r\nregarding the degree of proof of non-access\r\nfor rebutting the conclusiveness must be answered in the light of what is meant by\r\naccess or non-access as delineated above.”\r\n </i></b></p><p><b>11.2. The presumption of legitimacy of a child can only be\r\ndisplaced by strong preponderance of evidence, and not\r\nmerely by balance of probabilities. </b></p><p><b>12. It was also the view of the Court that normal rule of\r\nevidence is that the burden is on the party that asserts the\r\npositive. But in instances where that is challenged, the burden is shifted to the party, that pleads the negative.\r\nKeeping in mind the issue of burden of proof, it would be\r\nsafe to conclude that in a case like the present, the\r\nCourt’s decision should be rendered only after balancing the\r\ninterests of the parties, i.e, the quest for truth, and the\r\nsocial and cultural implications involved therein. The\r\npossibility of stigmatizing a person as a bastard, the\r\nignominy that attaches to an adult who, in the mature years\r\nof his life is shown to be not the biological son of his\r\nparents may not only be a heavy cross to bear but would also\r\nintrude upon his right of privacy. <i><br></i></b></p><p><b>13. DNA is unique to an individual (barring twins) and can\r\nbe used to identify a person’s identity, trace familial\r\nlinkages or even reveal sensitive health information.\r\nWhether a person can be compelled to provide a sample for\r\nDNA in such matters can also be answered considering the\r\ntest of proportionality laid down in the unanimous decision\r\nof this Court in K.S Puttaswamy v. Union of India5, wherein\r\nthe right to privacy has been declared a constitutionally\r\nprotected right in India. The Court should therefore examine\r\nthe proportionality of the legitimate aims being pursued, i.e whether the same are not arbitrary or discriminatory,\r\nwhether they may have an adverse impact on the person and\r\nthat they justify the encroachment upon the privacy and\r\npersonal autonomy of the person, being subjected to the DNA\r\nTest.  <i><br></i></b></p><p><b>16. The respondent cannot compel the plaintiff to adduce\r\nfurther evidence in support of the defendants’ case. In any\r\ncase, it is the burden on a litigating party to prove his\r\ncase adducing evidence in support of his plea and the court\r\nshould not compel the party to prove his case in the manner,\r\nsuggested by the contesting party. <i><br></i></b></p><p><b><i><br></i></b></p><p><b><i><br></i></b><br></p>', '88521ba25afed1e26dd9bad6938b0935.jpg', 'f5833c969cab0aa8de7ae63db3b701fd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-02', 1, '', '', '2021-10-03 00:39:42', '2021-10-03 01:08:03'),
(1060, 'w0xaTvIPwuIGFAMhmkqUmohUJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act. Minimum wages notification cannot be absolute to fix income to award compensation. In the absence of documentary evidence some amount of reality based guesswork is required to be done. Supreme Court.  ', '<p><b>Chandra and another vs Mukesh Kumar and others.&nbsp;<br>Civil Appeal 6152 of 2021 decided on 1 October 2021<br>Justice&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">R. Subhash Reddy and Justice&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Hrishikesh Roy<br>Judgment Link:&nbsp;</b><b><a href=\"https://main.sci.gov.in/supremecourt/2019/6127/6127_2019_42_1502_30503_Judgement_01-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/6127/6127_2019_42_1502_30503_Judgement_01-Oct-2021.pdf</a></b></p><p><b>10. It is the specific case of the claimants that the deceased was&nbsp; &nbsp;possessing&nbsp; &nbsp;heavy&nbsp; &nbsp;vehicle&nbsp; &nbsp;driving&nbsp; &nbsp;licence&nbsp; &nbsp;and&nbsp; &nbsp;was&nbsp; &nbsp;earning Rs.15000/­ per month.&nbsp; Possessing such licence and driving of heavy vehicle on the date of accident is proved from the evidence on record.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Though the wife of the deceased has categorically deposed as AW­1&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that her husband Shivpal was earning Rs.15000/­ per month, same&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was not considered only on the ground that salary certificate was not&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">filed.&nbsp; The Tribunal has fixed the monthly income of the deceased by&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">adopting minimum wage notified for the skilled labour in the year&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2016.&nbsp; In absence of salary certificate the minimum wage notification&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">can be a yardstick but at the same time cannot be an absolute one to&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">fix the income of the deceased.&nbsp; In absence of documentary evidence&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">on record some amount of guesswork is required to be done. But at&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the same time the guesswork for assessing the income of the deceased&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">should not be totally detached from reality.&nbsp; Merely because claimants&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">were unable to produce documentary evidence to show the monthly&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">income of Shivpal, same does not justify adoption of lowest tier of&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">minimum wage while computing the income.&nbsp; There is no reason to&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">discard the oral evidence of the wife of the deceased who has deposed&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that late Shivpal was earning around Rs.15000/­ per month.&nbsp; In the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">case of Minu Rout &amp; Anr. v. Satya Pradyumna Mohapatra &amp; Ors.(2013) 10 SCC 695&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">this Court while dealing with the claim relating to an accident which&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">occurred on 08.11.2004 has taken the salary of the driver of light&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">motor vehicle at Rs.6000/­ per month.&nbsp; In this case the accident was</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'b0eeea1176172b7cb940079a3186f8f7.JPG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-02', 1, '', '', '2021-10-03 01:34:29', '2021-10-03 01:34:29'),
(1058, 'cT03Sdmor6AHvOpbzFHWUasyX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian law leans towards legitimacy and frowns upon bastardy. The presumption in law of legitimacy of a child cannot be lightly repelled. Supreme Court. ', '<p><b>Ashok Kumar vs Raj Gupta and others&nbsp;</b></p><p><b>Civil Appeal 6153 of 2021 decided on 1 October 2021</b></p><p><b>Justice R. Subhash Reddy and Justice Hrishikesh Roy.&nbsp;</b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/16194/16194_2019_42_1503_30503_Judgement_01-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/16194/16194_2019_42_1503_30503_Judgement_01-Oct-2021.pdf</a></b></p><p><b>11.1 In circumstances where other evidence is available to prove or dispute the relationship, the court should ordinarily refrain from ordering blood tests. This is because such tests impinge upon the right of privacy of an individual and could also have major societal repercussions. <span style=\"background-color: rgb(255, 255, 0);\">Indian law leans towards legitimacy and frowns upon bastardy. The presumption in law of legitimacy of a child cannot be lightly repelled.</span> This Court, in Kamti Devi v. Poshi Ram 2001(5) SCC 311, while determining the question of standard of proof required to displace the presumption in favor of paternity of child born during subsistence of valid marriage held:</b></p><p><b><i>“10. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favor of the innocent child from being bastardised if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above.”&nbsp;&nbsp;</i></b></p><p><b>11.2. The presumption of legitimacy of a child can only be displaced by strong preponderance of evidence, and not merely by balance of probabilities.&nbsp;</b></p><p><b>12. It was also the view of the Court that normal rule of evidence is that the burden is on the party that asserts the positive. But in instances where that is challenged, the burden is shifted to the party, that pleads the negative. Keeping in mind the issue of burden of proof, it would be safe to conclude that in a case like the present, the Court’s decision should be rendered only after balancing the interests of the parties, i.e, the quest for truth, and the social and cultural implications involved therein. The possibility of stigmatizing a person as a bastard, the ignominy that attaches to an adult who, in the mature years of his life is shown to be not the biological son of his parents may not only be a heavy cross to bear but would also intrude upon his right of privacy.</b></p><p><b>13. DNA is unique to an individual (barring twins) and can be used to identify a person’s identity, trace familial linkages or even reveal sensitive health information. Whether a person can be compelled to provide a sample for DNA in such matters can also be answered considering the test of proportionality laid down in the unanimous decision of this Court in K.S Puttaswamy v. Union of India5, wherein the right to privacy has been declared a constitutionally protected right in India. The Court should therefore examine the proportionality of the legitimate aims being pursued, i.e whether the same are not arbitrary or discriminatory, whether they may have an adverse impact on the person and that they justify the encroachment upon the privacy and personal autonomy of the person, being subjected to the DNA Test.&nbsp;&nbsp;</b></p><p><b>16. The respondent cannot compel the plaintiff to adduce further evidence in support of the defendants’ case. In any case, it is the burden on a litigating party to prove his case adducing evidence in support of his plea and the court should not compel the party to prove his case in the manner, suggested by the contesting party.&nbsp;</b></p>', '5fcb514b2ac51929a7949ce886418a79.jpg', '745b3cbc8bd53170f8b94b3b44f4b0dc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-02', 1, '', '', '2021-10-03 00:46:33', '2021-10-03 00:46:33'),
(1059, '3AtEyKDCsWP8ycTmak0DPw9Oo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act. If evidence before the Tribunal runs contrary to contents in the FIR, the evidence recorded before the Tribunal has to be given weightage over FIR. Supreme Court. ', '<p><b>National Insurance Company Ltd vs Chamundesari &amp; Ors.<br>Civil Appeal 6151 of 2021 decided on 1 October 2021.<br>Justice R. Subhash Reddy and Justice Hrishikesh Roy<br>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2019/5077/5077_2019_42_1501_30503_Judgement_01-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/5077/5077_2019_42_1501_30503_Judgement_01-Oct-2021.pdf</a></b></p><p><b>8. It is clear from the evidence on record of\r\nPW–1 as well as PW–3 that the Eicher van which\r\nwas going in front of the car, has taken a sudden\r\nright turn without giving any signal or\r\nindicator. The evidence of PW–1 &amp; PW–3 is\r\ncategorical and in absence of any rebuttal\r\nevidence by examining the driver of Eicher van,\r\nthe High Court has rightly held that the accident\r\noccurred only due to the negligence of the driver\r\nof Eicher van. It is to be noted that PW–1\r\nherself travelled in the very car and PW–3, who\r\nhas given statement before the police, was\r\nexamined as eye–witness. In view of such evidence\r\non record, there is no reason to give weightage&nbsp;to the contents of the First Information Report.\r\nIf any evidence before the Tribunal runs contrary\r\nto the contents in the First Information Report,\r\nthe evidence which is recorded before the\r\nTribunal has to be given weightage over the\r\ncontents of the First Information Report. In the\r\njudgment, relied on by the appellant’s counsel in\r\nthe case of Oriental Insurance Company Limited v.\r\nPremlata Shukla and Others1\r\n, this Court has held\r\nthat proof of rashness and negligence on the part\r\nof the driver of the vehicle, is therefore, sine\r\nqua non for maintaining an application under\r\nSection 166 of the Act. In the said judgment, it\r\nis held that the factum of an accident could also\r\nbe proved from the First Information Report. In\r\nthe judgment in the case of Nishan Singh and\r\nOthers v. Oriental Insurance Company Limited2\r\n,\r\nthis Court has held, on facts, that the car of\r\nthe appellant therein, which crashed into truck\r\nwhich was proceeding in front of the same, was\r\ndriven negligently by not maintaining sufficient\r\ndistance as contemplated under Road Regulations,&nbsp;framed under Motor Vehicles Act, 1988. Whether\r\ndriver of the vehicle was negligent or not, there\r\ncannot be any straitjacket formula. Each case is\r\njudged having regard to facts of the case and\r\nevidence on record. Having regard to evidence in\r\nthe present case on hand, we are of the view that\r\nboth the judgments relied on by the learned\r\ncounsel for the appellant, would not render any\r\nassistance in support of his case.<br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'f38b46fa446a1e735c6a5e55796987e2.jpg', 'a289a16574be4f4ee4ee53e034f7b8c9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-02', 1, '', '', '2021-10-03 01:05:56', '2021-10-03 01:05:56');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1061, 'zsgnGFaYBEmauwnp05R5bw1NK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration.  If the contract prohibits pre­reference and pendente lite interest, the arbitrator cannot award interest for the said period. Supreme Court reiterates. ', '<p><b>Garg Builders vs Bharat Heavy Electricals&nbsp;Limited&nbsp;<br>Civil Appeal 6216 of 2021 decided on 4 October 2021<br>Justice S. Abdul Nazeer and Justice Krishna Murari.&nbsp;<br>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2018/19517/19517_2018_37_1501_30540_Judgement_04-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/19517/19517_2018_37_1501_30540_Judgement_04-Oct-2021.pdf</a></b></p><p><b>10. We have carefully considered the submissions of the learned counsel for both the parties made at the Bar.&nbsp; The law relating to award of pendente lite interest by Arbitrator under the 1996 Act is no&nbsp; &nbsp;longer&nbsp; res&nbsp; &nbsp;integra.&nbsp; &nbsp; &nbsp;The&nbsp; &nbsp;provisions&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;1996&nbsp; &nbsp;Act&nbsp; &nbsp;give paramount importance to the contract entered into between the 6 parties&nbsp; &nbsp;and&nbsp; &nbsp;categorically&nbsp; &nbsp;restricts&nbsp; the&nbsp; &nbsp;power&nbsp; of&nbsp; an&nbsp; &nbsp;arbitrator&nbsp; to award pre­reference and&nbsp; pendente&nbsp; lite&nbsp; interest when the parties themselves have agreed to the contrary.&nbsp; &nbsp;Section 31(7)(a) of the 1996 Act which deals with the payment of interest is as under :&nbsp;</b></p><p><b><i>“31(7)(a)&nbsp; &nbsp;Unless otherwise agreed by the parties, where and insofar as an arbitral award is for the payment of money, the arbitral tribunal may include in the sum for which the award is made interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made.”</i></b></p><p><b>11. It&nbsp; &nbsp;is&nbsp; &nbsp;clear&nbsp; &nbsp;from&nbsp; &nbsp;the&nbsp; &nbsp;above&nbsp; &nbsp;provision&nbsp; &nbsp;that&nbsp; &nbsp;if&nbsp; &nbsp;the&nbsp; &nbsp;contract prohibits&nbsp; &nbsp;pre­reference&nbsp; &nbsp;and&nbsp; pendente&nbsp; &nbsp;lite&nbsp; interest,&nbsp; &nbsp;the&nbsp; &nbsp;arbitrator cannot award interest for the said period.&nbsp; &nbsp;In the present case, clause barring interest is very clear and categorical.&nbsp; &nbsp;It uses the expression “any moneys due to the contractor” by the employer which includes the amount awarded by the arbitrator.&nbsp;&nbsp;</b></p><p><b>12. In Sayeed Ahmed and Company v. State of Uttar Pradesh &amp; Ors.3&nbsp; &nbsp; this Court has held that a provision has been made under Section 31(7)(a) of the 1996 Act in relation to the power of the 3 (2009) 12 SCC 26 7 arbitrator to award interest.&nbsp; As per this section, if the contract bars payment of interest, the arbitrator cannot award interest from the date of cause of action till the date of award.&nbsp;</b></p><p><b>13. In&nbsp; Sree&nbsp; &nbsp;Kamatchi&nbsp; &nbsp;Amman&nbsp; &nbsp;Constructions&nbsp; &nbsp;v.&nbsp; &nbsp;Divisional Railway&nbsp; Manager&nbsp; &nbsp;(Works),&nbsp; Palghat&nbsp; &amp;&nbsp; Ors.4&nbsp; &nbsp;it was held by this Court that where the parties had agreed that the interest shall not be payable, the Arbitral Tribunal cannot award interest between the date on which the cause of action arose to the date of the award.</b></p><p><b>14. Bharat Heavy Electricals Limited v. Globe Hi­Fabs Limited5 is an identical case where this Court has held as under : <i>“16.&nbsp; In the present case we noticed that the clause barring interest is very widely worded.&nbsp; It uses the words “any amount due to the contractor by the employer”.&nbsp; &nbsp;In our opinion, these words cannot be read as ejusdem generis along with the earlier words “earnest money” or “security deposit”.”&nbsp;&nbsp;</i></b></p><p><b>15. In&nbsp; Sri&nbsp; &nbsp;Chittaranjan&nbsp; &nbsp;Maity&nbsp; &nbsp;v.&nbsp; &nbsp;Union&nbsp; &nbsp;of&nbsp; &nbsp;India6 it&nbsp; &nbsp;was categorically held that if a contract prohibits award of interest for pre­award period, the arbitrator cannot award interest for the said period.&nbsp; &nbsp;4 (2010) 8 SCC 767 5 (2015) 5 SCC 718 6 (2017) 9 SCC 611 8</b></p><p><b>16. Therefore,&nbsp; &nbsp;if&nbsp; &nbsp;the&nbsp; &nbsp;contract&nbsp; &nbsp;contains&nbsp; &nbsp;a&nbsp; &nbsp;specific&nbsp; &nbsp;clause&nbsp; &nbsp;which expressly bars payment&nbsp; of interest, then&nbsp; it is not open&nbsp; for the arbitrator to grant pendente lite interest.&nbsp; The judgment on which reliance was placed by the learned counsel for the appellant in Ambica&nbsp; &nbsp;Construction&nbsp; (supra) has no application to the instant case&nbsp; &nbsp;because&nbsp; Ambica&nbsp; &nbsp;Construction&nbsp; was&nbsp; &nbsp;decided&nbsp; &nbsp;under&nbsp; &nbsp;the Arbitration Act 1940 whereas the instant case falls under the 1996 Act.&nbsp; This has been clarified in Sri Chittaranjan Maity&nbsp; (supra) as under : “16. Relying on a decision of this Court in Ambica Construction&nbsp; v.&nbsp; Union of India,&nbsp; (2017) 14 SCC 323, the&nbsp; &nbsp;learned&nbsp; &nbsp;Senior&nbsp; &nbsp;Counsel&nbsp; &nbsp;for&nbsp; &nbsp;the&nbsp; &nbsp;appellant submits&nbsp; &nbsp;that&nbsp; &nbsp;mere&nbsp; &nbsp;bar&nbsp; &nbsp;to&nbsp; &nbsp;award&nbsp; &nbsp;interest&nbsp; &nbsp;on&nbsp; &nbsp;the amounts payable under the contract would not be sufficient to deny payment on pendente lite interest. Therefore, the arbitrator was justified in awarding the pendente lite interest. However, it is not clear from&nbsp; Ambica Construction&nbsp; (supra) as to whether it was decided under the Arbitration Act, 1940 (for short “the 1940 Act”) or under the 1996 Act. It has relied on a judgment of Constitution Bench in State of&nbsp; &nbsp;Orissa&nbsp; v.&nbsp; G.C.&nbsp; &nbsp;Roy,&nbsp; (1992)&nbsp; &nbsp;1&nbsp; &nbsp;SCC&nbsp; &nbsp;508.&nbsp; &nbsp;This judgment was with reference to the 1940 Act. In the 1940 Act, there was no provision which prohibited the arbitrator from awarding interest for the prereference,&nbsp; &nbsp;pendente&nbsp; &nbsp;lite&nbsp; &nbsp;or&nbsp; &nbsp;post­award&nbsp; &nbsp;period, whereas the 1996 Act contains a specific provision which says that if the agreement prohibits award of interest&nbsp; &nbsp;for&nbsp; &nbsp;the&nbsp; &nbsp;pre­award&nbsp; &nbsp;period,&nbsp; &nbsp;the&nbsp; &nbsp;arbitrator 9 cannot award interest for the said period. Therefore, the decision in&nbsp; Ambica Construction (supra)&nbsp; cannot be made applicable to the instant case.”</b></p><p><b>17. The decision in Raveechee and Company (supra) relied on by the learned counsel for the appellant is again under the Arbitration Act 1940 which has no application to the facts of the present case. 18. Having regard to the above, we are of the view that the High Court was justified in rejecting the claim of the appellant seeking pendente lite interest on the award amount.</b></p>', 'cd10de9ff4308e53b11bdff1a342c66d.JPG', '58964a36e7cca135bc3dc6470e9574bd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-04', 1, '', '', '2021-10-05 03:56:08', '2021-10-05 03:56:08'),
(1062, 'YrZYvZRbo7cDQiZnm2N49gf8I', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Penal Code. Section 306. The disciplinary measures or reprimanding by teacher or school management would not amount to abetment to commit suicide unless there are repeated acts of harassment and insult. Supreme Court. ', '<p><b>Geo Varghese vs The State of Rajasthan and another.&nbsp;<br>Criminal Appeal 1164 of 2021 decided on 5 October 2021.</b><br><b>Justice S. Abdul Nazeer and Justice Krishna Murari&nbsp;<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/17384/17384_2019_7_1501_30573_Judgement_05-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/17384/17384_2019_7_1501_30573_Judgement_05-Oct-2021.pdf</a></b></p><p><b>27. It is a solemn duty of a teacher to instil discipline in the students. It is not\r\nuncommon that teachers reprimand a student for not being attentive or not being\r\nupto the mark in studies or for bunking classes or not attending the school. The\r\ndisciplinary measures adopted by a teacher or other authorities of a school,\r\nreprimanding a student for his indiscipline, in our considered opinion, would\r\nnot tantamount to provoking a student to commit suicide, unless there are\r\nrepeated specific allegations of harassment and insult deliberately without any\r\njustifiable cause or reason. A simple act of reprimand of a student for his\r\nbehaviour or indiscipline by a teacher, who is under moral obligations to\r\ninculcate the good qualities of a human being in a student would definitely not\r\namount to instigation or intentionally aid to the commission of a suicide by a\r\nstudent.</b></p><p><b>28. ‘Spare the rod and spoil the child’ an old saying may have lost its\r\nrelevance in present days and Corporal punishment to the child is not&nbsp;recognised by law but that does not mean that a teacher or school authorities\r\nhave to shut their eyes to any indiscipline act of a student. It is not only a moral\r\nduty of a teacher but one of the legally assigned duty under Section 24 (e) of the\r\nRight of Children to Free and Compulsory Education Act, 2009 to hold regular\r\nmeetings with the parents and guardians and apprise them about the regularity\r\nin attendance, ability to learn, progress made in learning and any other act or\r\nrelevant information about the child.</b></p><p><b>\r\n29. Thus, the appellant having found the deceased boy regularly bunking\r\nclasses, first reprimanded him but on account of repeated acts, brought this fact\r\nto the knowledge of the Principal, who called the parents on telephone to come\r\nto the school. No further overt act has been attributed to the appellant either in\r\nthe First Information Report or in the statement of the complainant, nor\r\nanything in this regard has been stated in the alleged suicide note. The alleged\r\nsuicide note only records insofar as, the appellant is concerned, ‘THANKS\r\nGEO (PTI) OF MY SCHOOL’. Thus, even the suicide note does not attribute\r\nany act or instigation on the part of the appellant to connect him with the\r\noffence for which he is being charged&nbsp;</b></p><p><b>30. If, a student is simply reprimanded by a teacher for an act of indiscipline\r\nand bringing the continued act of indiscipline to the notice of Principal of the\r\ninstitution who conveyed to the parents of the student for the purposes of school&nbsp;discipline and correcting a child, any student who is very emotional or\r\nsentimental commits suicide, can the said teacher be held liable for the same\r\nand charged and tried for the offence of abetment of suicide under section 306\r\nIPC.</b></p><p><b>\r\n32. Considering the facts that the appellant holds a post of a teacher and any\r\nact done in discharge of his moral or legal duty without their being any\r\ncircumstances to even remotely indicate that there was any intention on his part\r\nto abet the commission of suicide by one of his own pupil, no mens rea can be\r\nattributed. Thus, the very element of abetment is conspicuously missing from\r\nthe allegations levelled in the FIR. In the absence of the element of abetment\r\nmissing from the allegations, the essential ingredients of offence under section\r\n306 IPC do not exist.</b></p><p><b>39. Insofar as, the suicide note is concerned, despite our minute examination\r\nof the same, all we can say is that suicide note is rhetoric document, penned\r\ndown by an immature mind. A reading of the same also suggests the hypersensitive temperament of the deceased which led him to take such an extraordinary step, as the alleged reprimand by the accused, who was his teacher,\r\notherwise would not ordinarily induce a similarly circumstanced student to\r\ncommit suicide.</b></p><p><b>40. In the absence of any material on record even, prima-facie, in the FIR or\r\nstatement of the complainant, pointing out any such circumstances showing any\r\nsuch act or intention that he intended to bring about the suicide of his student, it\r\nwould be absurd to even think that the appellant had any intention to place the\r\ndeceased in such circumstances that there was no option available to him except\r\nto commit suicide.</b></p><p><b>41. In the absence of any specific allegation and material of definite nature,\r\nnot imaginary or inferential one, it would be travesty of justice, to ask the\r\nappellant-accused to face the trial. A criminal trial is not exactly a pleasant\r\nexperience and the appellant who is a teacher would certainly suffer great\r\nprejudice, if he has to face prosecution on absurd allegations of irrelevant\r\nnature.</b></p><p><b>42. Bearing in mind the factual aspects of the case delineated herein above\r\nand the legal principles enunciated by a series of pronouncements of this Court\r\ndiscussed herein above, we are of the view that High Court was not justified in\r\ndismissing the application under section 482 CrPC for quashing the First\r\nInformation Report in exercise of its inherent jurisdiction.</b></p><p><b>43. We are conscious of the pain and suffering of the complainant who is the\r\nmother of the deceased boy. It is also very unfortunate that a young life has\r\n22\r\nbeen lost in this manner, but our sympathies and the pain and suffering of the\r\ncomplainant, cannot translate into a legal remedy, much less a criminal\r\nprosecution.\r\n</b></p><p><b>44. In view of above facts and discussions, the impugned judgment of the\r\nHigh Court dated 30.04.2019 cannot be sustained and is hereby set aside. The\r\nFirst Information Report registered as Case No. 162 of 2018 at Police Station\r\nSodala, Jaipur City (South), stands quashed.</b><br></p>', '59de2375933061dc90eb19e956f048df.JPG', 'bcea58b48a4cdb14598d3428abee54df.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-05', 1, '', '', '2021-10-06 00:37:19', '2021-10-06 00:37:19'),
(1063, 'FLjnp6ZunxZj9AT9kdvU82H2X', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Proceedings to evict tenant from the Wakf properties can be initiated only before the Wakf Tribunal. Proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act are not maintainable in respect of Wakf properties. Karnataka High Court. ', '<p><b>Shanaz Begum vs The Muslim Boys Orphanage and another </b></p><p><b>Writ Petition 733 of 2021 decided on 1 October 2021</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/411278/1/WP733-21-01-10-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/411278/1/WP733-21-01-10-2021.pdf</a></b></p><p><b>A short but a very significant question  of  law  as  to the invocability if not validity of section 2(e)(v) of the Karnataka Public Premises (Eviction of Unauthorized Occupants) Act, 1974, (hereafter \'1974 Act\') qua the waqf properties arises for consideration.</b></p><p><b>(e)Section 83(1) of the 1995 Act prior to 2013 Amendment had the following text:</b></p><p><b><i>“83(1) The State Government shall, by notification in the official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a wakf or wakf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals”.</i></b></p><p><b>However, the 2013 Amendment altered the  text  of  this provision as under:</b></p><p><b><i>“83. Constitution of Tribunals, etc.-  (1) The State Government shall, by notification in the official Gazette, constitute as  many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a Waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under this Act and define  the local limits and jurisdiction of such Tribunals”.</i></b></p><p><b>The employment of the term \"eviction of a tenant or determination of rights and obligations of the lesser and the lessee of such property\"  in  section  83(1)  takes  the  disputes of the kind to the portals of the Waqf Tribunal, which </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">otherwise were being dealt with under the provisions of  1974 Act.</b></p><p><b>(f)<span style=\"white-space:pre\">	</span>The Parliamentary intention of putting these disputes exclusively at the hands of the Waqf Tribunal is obviated by the following text of section 85 as amended by 2013 Act:</b></p><p><b><i>“85. Bar of jurisdiction of civil courts - No suit or other legal proceeding shall lie in any (civil court, revenue court and any other authority) in respect of any dispute, question or other matter relating to any waqf, waqf property or other matter which is required by or under this Act to be determined by a Tribunal”.</i></b></p><p><b>The plain language of this provision unequivocally indicates that the jurisdiction of \"civil court, revenue court and any other authority\" is excluded in respect of any dispute, question or other matter inter alia relating to any waqf property; thus, it is an all pervasive  bar  and  everything now falls within the province of the Waqf Tribunal; if the Parliament intended that the State enactments such as the  1974  Act  should  continue  to  apply, it would not have employed a broader  sweep  language of specifically mentioning \"any other authority\".</b></p><p><b>(g)<span style=\"white-space:pre\">	</span>The vehement contention of learned Sr. Panel Counsel for the respondent-Board that the 1974 Act </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">having been assented to by the President of India, would over-ride the provisions of sections 83 & 85 as amended by 2013 Act, does not merit countenance</b></p><p><b>The contention that there is no conflict between 1974 Act and 1995 Act even after  2013 Amendment, is difficult to agree with.</b></p><p><b>In the above circumstances, these writ petitions succeed; a Writ of Certiorari issues quashing the impugned orders; it is open to the respondents to take appropriate proceedings before the jurisdictional Waqf Tribunal;  in  such proceedings, it shall not be open to the petitioners to contend that the Tribunal has no jurisdiction; all other contentions are kept open.</b></p>', '79806f84fd3698d87d21adb0f5bf99b9.jpg', '20ce497b91e4e49ccd79a0810aa9ade3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-05', 1, '', '', '2021-10-06 01:13:00', '2021-10-06 01:13:32'),
(1064, '7xeGOrZj7uVq58MUjWswPw4zn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'Issuance of Aadhaar cards by unauthorised sub-contract agencies is against the interest of national security\'. Karnataka High Court refuses to quash criminal proceedings initiated against sub-contract agent. ', '<p><b>Naresh Kumar R.P. vs The State of Karnataka and another. <br>Criminal Petition 3683 of 2017 decided on 30 September 2021<br>Judgement Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/411335/1/CRLP3683-17-30-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/411335/1/CRLP3683-17-30-09-2021.pdf</a></b></p><p><b>3. It is the claim of the petitioner that  the  2nd respondent - Deputy Director, Unique Identification Authority of India (hereinafter referred to as the ‘UIDAI’ for short) in the Ministry of Electronics and Information Technology had addressed a permission letter for on boarding Utility as enrolment agency for UIDAI, particularly for the purpose of carrying out enrolments for  Aadhaar  in Karnataka.  In terms  of the agreement entered into between Utility and the petitioner, it is the claim of the petitioner that he was providing manpower resources to Utility such as enrolment operators and supervisors. Certain guidelines are laid down by the Circulars issued as to how UIDAI and the persons who have entered into the contract with UIDAI should function.</b></p><p><b>7. On the other hand, Sri.H.Shanthi Bhushan, learned Assistant Solicitor General would vehemently refute the submissions of the learned counsel for the petitioner and submit that there is no substance in the contention. The allegation against the petitioner is not only of cheating under Section 420 of IPC but also under Sections 465, 468, 469, </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">471 and 120B of IPC. In  terms  of  the  scheme  for empanelment of enrolment of agency what was permitted to  the enrolment agency was to enter into an agreement with the petitioner and the like, only for securing manpower and not to sublet the job of issuance of Aadhaar card.</b></p><p><b>8. The action of enrolment agency in entering into a sub-contract with the petitioner has led to grave threat to national security as Aadhaar cards are recklessly issued to </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">many who are also from neighboring countries. Such instance have emerged by the acts of the agencies like the petitioner. Therefore, the learned counsel would contend that it is for the petitioner to come out clean in the trial as the  investigation itself is not yet commenced in the case on hand.</b></p><p><b>12. The Government has notified regulations namely, Aadhaar (Enrolment and Update) Regulations, 2016. Chapter V deals with appointment of Registrars, Enrolling agencies and other service providers. Regulation 21 deals with appointment of  Registrars. 21(7) mandates that the Registrars shall not permit subcontracting of enrolment functions by enrolling agencies to third parties. The Registrars are only permitted field level man power to be hired  through  third parties, provided the Enrolling agencies would furnish all details. </b></p><p><b>17. It is also germane to notice that by Office Memorandum, Government of India, drawing  attention towards comprehensive guidelines issued by UIDAI, communicated that it has come to its  notice  that  surprise  visits of permanent enrolment centres have  revealed  that many operators are charging money for Aadhaar enrolment which is free of cost and some such violators had been blacklisted under UIDAI are also indicated that in the wake of rising cases of charging money for Aadhaar enrolment, zero tolerance should be taken by the Government.</b></p><p><b>18.Therefore, with the facts being so glaring and the offence alleged against the petitioner  having  such  ramification, as issuance of Aadhaar card by  such  agencies  who are not empowered can also lead to distribution of such cards against the interest of national  security.  It  is  prudent  for the Government of India or  the State Government  to have  a vigil on such instances of rising cases of frauds in Aadhaar </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">enrolment. Any further observation on the merit of the matter would be prejudicial to the interest of the petitioner in his defence before the trial Court. The petitioner,  in  my  considered view has to face trial.</b></p><p><b>21. The Criminal Petition, accordingly, stands dismissed.</b></p><p><b><br></b></p><p><br></p>', 'bed34c072e9449707c9585250e6afdab.jpg', 'c6d02f5c4dd095402182bea30f796a5d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-05', 1, '', '', '2021-10-06 01:50:52', '2021-10-06 01:52:24'),
(1065, 'xrps7I6FoRrSUi29mm7wbpqKj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arkavati Layout. Karnataka High Court upholds acquisition of lands for formation of the Layout. Constitutes committee to oversee allotment of sites.  ', '<p><b>K.P.Anjanappa vs The State of Karnataka and others.&nbsp;<br>Writ Petition 51929 of 2014 and connected matters decided on 27 September 2021</b><br><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link:&nbsp;<a href=\"https://karnatakajudiciary.kar.nic.in/judgements/WP-51929-2014-and-Connected-Matters.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/WP-51929-2014-and-Connected-Matters.pdf</a></b><br></p><p><b>89. In the light of aforestated facts, this Court is of the\r\nconsidered view that these aspects will have to be dealt by\r\nexamining the claims afresh and for ensuring there is clear\r\nand absolute transparency in the said process, it would be apt\r\nand appropriate to constitute a Committee. The Committee is\r\naccordingly constituted comprising of following three (3)\r\npersons to look into the various aspects as indicated in the\r\norder hereinabove and as also morefully indicated in the\r\noperative portion of this order. The Committee shall comprise\r\nof the following persons:\r\n</b></p><p><b>(1) Hon’ble Mr.Justice K.N.Keshavanarayana,\r\nFormer Judge-High Court of Karnataka\r\nNo.10/11, Manasa,\r\nSingapore Gardens, Green Fields-1,\r\nGubbilala Gate, Kanakapura Road,\r\nBengaluru - 560 062 - - CHAIRMAN\r\n</b></p><p><b>(2) Sri.Sandeep Dave, IAS (Retd.),\r\nFormer Additional Chief Secretary\r\n#N-73, Diamond District,\r\nOld Airport Road,\r\nBengaluru-560 008 - - MEMBER\r\n</b></p><p><b>(3) Sri.N.S.Megharikh, IPS (Retd.)\r\nFormer Director General of Police-CID,\r\nEconomic Offences and Special Units\r\nGovernment of Karnataka\r\n#A-33, Legacy ESTILO,\r\nDoddaballapur Road, \r\n736\r\nAvalahalli, Yelahanka,\r\nBengaluru - 560 064 - - MEMBER\r\n</b></p><p><b> 90. The Commissioner-BDA shall be the Ex-Officio\r\nConvener. This Court directs the Commissioner-BDA to\r\nconsult the Chairman and its Members of the Committee\r\nand accordingly fix and pay the remunerations. BDA is\r\ndirected to provide the necessary assistance, transport\r\nand other logistical support to the Chairman and\r\nMembers of the Committee for holding the meetings. The\r\nChairman of the Committee is authorized to appoint\r\nrequisite staff, if need be, on temporary basis to assist the\r\nCommittee in conducting the meetings and also fix their\r\nsalaries, which shall be paid by the BDA. The BDA is also\r\ndirected to provide necessary office space at its Head\r\nOffice for smooth functioning of the Committee within an\r\nouter limit of three (3) weeks from today. The Committee\r\nwould be at liberty to take requisite assistance of any of\r\nthe employees of the BDA or the State Government\r\nincluding Surveyors either from BDA or of the State\r\nGovernment for the purposes of carrying out spot\r\ninspection, marking, inspection, etc and for overall\r\nimplementation of this order.&nbsp;</b></p><p><b>91. For the reasons aforestated, I proceed to pass the\r\nfollowing:\r\nORDER\r\n</b></p><p><b>(i) The challenge made to the Notifications Nos.\r\nBDA/COMMR, KLAO/LA9/104/2002-03,\r\nBANGALORE, dated: 03.02.2003, No. UDD 193\r\nMNX 2004, BANGALORE, dated: 23.02.2004\r\nand No. UDD 426 MNJ/2011, BANGALORE,\r\ndated 18.06.2014, stands rejected and\r\nacquisition of the lands for the formation of\r\nArkavati Layout is upheld.\r\n</b></p><p><b>(ii) W.P.Nos.815/2016 c/w 6717/2016 is allowed\r\nand writ of mandamus issues to the BDA –\r\nrespondent No.1 to conclude the allotment\r\nprocess of site No.BK90, Arkavati Layout,\r\nexpeditiously, at any rate within an outer limit of\r\nthree months from the date of receipt of this\r\norder. In the alternate, if site BK90 is not\r\navailable BDA shall allot alternate site and\r\nexecute Lease-cum-Sale Agreement in favour of\r\nthe petitioner, issue Possession Certificate and\r\ndeliver vacant possession of site so allotted, \r\n738\r\nexpeditiously and at any rate within 30 days from\r\nthe date of issuing the endorsement to the\r\npetitioner that site bearing No.BK90 not being\r\navailable. It is also made clear that within 7 days\r\nfrom the date of this order, BDA shall intimate\r\npetitioner as to whether site No.BK90 allotted to\r\nhim on 31.05.2016, is available or not.\r\n</b></p><p><b>(iii) W.P.Nos.47461/2016 &amp; 48412-14/2016 are\r\nhereby dismissed.\r\n</b></p><p><b>(iv) W.P.No.21361/2017 is allowed and writ of\r\nmandamus issues to BDA directing the said\r\nAuthority to execute absolute sale deed in favour\r\nof the petitioner expeditiously at any rate within\r\nan outer limit of three (3) months from the date of\r\nreceipt of this order.\r\n</b></p><p><b>(v) W.P.No.751/2016 is allowed and writ of\r\nmandamus issues to the BDA to allot a site\r\nmeasuring 30’ x 40’ in favour of petitioner\r\nexpeditiously at any rate within an outer limit of\r\nthree (3) months from the date of receipt of this\r\norder. \r\n739\r\n</b></p><p><b>(vi) W.P.Nos.3178/2017 c/w 55737/2016,\r\n10923/2015, 58734/2016, 15588/2017,\r\n14868/2017, 30485/2017 &amp; 59317/2016 and\r\nsimilarly placed writ petitions stands disposed of\r\nby directing the BDA to place the representations\r\nof all the applicants/petitioners submitted for\r\nallotment of sites for being considered by the\r\nCommittee constituted hereinabove. It is also\r\nmade clear that all such applications which have\r\nbeen filed for allotment of sites under any of the\r\ncategories specified in the order of the Division\r\nBench or the Apex Court in BONDU\r\nRAMASWAMY’s case shall be considered by the\r\nCommittee keeping in mind the directions issued\r\nthereunder and subject to order passed at\r\nparagraph (xiv) hereinbelow.\r\n</b></p><p><b>(vii) W.P.No.43194/2017 is hereby allowed in part\r\nand a writ of mandamus issues to the BDA to\r\nallot one (1) site in favour of the petitioner, the\r\nmeasurement of which shall be same as indicated\r\nin the Lease cum Sale Agreement executed in\r\nfavour of petitioner by BDA on 28.02.2007. \r\n740\r\n</b></p><p><b>(viii) W.P.Nos.38463/2014, 19783-784/2018,\r\n46766/2014, 47606/2014 &amp; 48579/2014,\r\nstands dismissed.\r\n</b></p><p><b>(ix) W.P.No.1876/2016 stands disposed of and BDA\r\nis directed to place the representation of the\r\npetitioner, who is a revenue site holder and all\r\nsimilar representations/applications of the\r\nrevenue site holders before the Committee for\r\nexamining their claims in the background of\r\nDivision Bench judgment as affirmed by Apex\r\nCourt in BONDU RAMASWAMY’s case and as\r\nundertaken in paragraph No.3.2 of the Memo\r\nfiled by the BDA before the Division Bench.\r\n</b></p><p><b>(x) W.P.No.29541/2015 is allowed in part and a writ\r\nof mandamus issues to the BDA to execute the\r\nLease cum Sale Agreement in favour of the\r\npetitioners in respect of site Nos.B9-SC-2201 and\r\nB5-SF-2137, which sites have been allotted as\r\nper allotment letters dated 09.11.2007\r\n(Annexures-R2 and R3 respectively).\r\n</b></p><p><b>(xi) The applicants/writ petitioners who are claiming\r\nrelief based on sale transactions which has taken \r\n741\r\nplace subsequent to issuance of Preliminary\r\nNotification dated 03.02.2003, would not be\r\nentitled to any protection or relief whatsoever and\r\ntheir claim stands rejected.\r\n</b></p><p><b>(xii) It is also made clear that neither the Committee\r\nnor the BDA would be required to examine or\r\nconsider the claim where dispute with regard to\r\ntitle is involved.\r\n</b></p><p><b>(xiii) The BDA shall allot the site to all such applicants\r\nin whose favour allotment had been made and\r\nlater cancelled on the ground of same site having\r\nbeen allotted to two (2) persons or cancelled for\r\nwhatsoever reason like it has fallen in the land\r\ndeleted from acquisition and like reasons.\r\n</b></p><p><b>(xiv) All deletions or deNotification recommended by\r\nthe BDA or made by BDA or by the Government,\r\nis subject to the certification or approval by the\r\nCommittee to the effect that such deletion of land\r\nis in accordance with the law laid down by the\r\nDivision Bench and directions/clarifications\r\nissued by the Apex Court in BONDU\r\nRAMASWAMY’s case.</b></p><p><b>\r\n(xv) It is also made clear that in the event of\r\napplications or representations having not been\r\nsubmitted by the applicant/s pursuant to the\r\norder of the Division Bench or BONDU\r\nRAMASWAMY’s case, they would be at liberty to\r\nsubmit the same to the BDA within one (1) month\r\nfrom the date of this order and on receipt of said\r\nrepresentations or applications, it shall be placed\r\nby the BDA before the Committee constituted\r\nhereinabove within ten (10) days after expiry of\r\none (1) month.\r\n</b></p><p><b>(xvi) The civic amenities sites earmarked in the map/s\r\nor Arkavati Layout Plans, if located as an isolated\r\nplot or island and such plots if not being adjacent\r\nor abutting to the sites formed in Arkavati\r\nLayout, such lands may not be feasible for\r\nacquisition and Committee would examine such\r\nclaims and based on physical verification and a\r\nreport shall be forwarded by the Committee to\r\nBDA either to retain such lands for acquisition or\r\nrecommend for deletion as the case may be, upon receipt of such report BDA shall take further\r\nsteps.\r\n</b></p><p><b>(xvii) A writ of mandamus issues to BDA to execute\r\nLease cum Sale Agreement and possession\r\ncertificate in favour of all such allottees, who had\r\nbeen allotted sites and on account of pendency of\r\nthe present proceedings, further steps had not\r\nbeen taken. The BDA shall also ensure that\r\nkatha of the sites so allotted and possession\r\ndelivered is issued in favour of such allottees. The\r\nsaid exercise shall be undertaken by the BDA\r\nforthwith and at any rate within an outer limit of\r\nthree (3) months from today.\r\n</b></p><p><b>(xviii) The BDA shall consider the claim of all such\r\nallottees, who have been allotted site/s in\r\nArkavati Layout, but later cancelled due to redo\r\nexercise and shall allot the site/s to such of those\r\napplicants/allottees expeditiously and at any rate\r\nwithin an outer limit of three (3) months from the\r\ndate of receipt of copy of this order and it is also\r\nmade clear that in the event of such site/s not\r\nbeing available in Arkavati Layout, they shall be \r\n744\r\nallotted sites in any other Layout within the\r\ntimeframe stipulated hereinabove.\r\n</b></p><p><b>(xix) Registered agreement holders or agreement\r\nholders together holding registered General Power\r\nof Attorney namely, if such documents have come\r\ninto existence contemporaneously prior to\r\nissuance of Preliminary Notification dated\r\n03.02.2003, would be entitled to seek for\r\nallotment of site from BDA and all such\r\napplicants would be at liberty to submit\r\napplication/representations to BDA within one\r\n(1) month from today and all such\r\nrepresentations received by the BDA shall be\r\nplaced before the Committee constituted by this\r\nCourt within ten (10) days after expirty of one (1)\r\nmonth and on report being submitted by the\r\nCommittee, BDA would be at liberty to make\r\nallotment of sites or issue endorsement assigning\r\nthe reasons for rejection of claim, if any.\r\n</b></p><p><b>(xx) The Committee constituted hereinabove shall\r\nimplement the order passed in\r\nW.A.No.2624/2005 &amp; connected matters on \r\n745\r\n25.11.2005 in the matter of THE\r\nCOMMISSIONER, BDA AND OTHERS vs. STATE\r\nOF KARNATAKA, BY ITS SECRETARY AND\r\nOTHERS and order passed by the Hon’ble\r\nSupreme Court in Civil Appeal Nos.4097/2010\r\nand connected matters on 05.05.2010 in the\r\nmatter of BONDU RAMASWAMY AND OTHERS\r\nvs. BANGALORE DEVELOPMENT AND OTHERS\r\nand in addition to the same, said Committee\r\nshall also:\r\n</b></p><p><b>(a) Examine all such representations\r\nreceived by BDA pursuant to Division\r\nBench order and BONDU\r\nRAMASWAMY’s judgment placed before\r\nthe Committee and submit a report to\r\nthe BDA as to whether such claim/s\r\nwould fall within the exceptions carved\r\nout under the judgments for deleting the\r\nlands or not. The BDA shall thereafter\r\ntake steps to delete or include such\r\nlands from acquisition. \r\n746\r\n</b></p><p><b>(b) The Committee shall also consider the\r\nrepresentations of the land owners\r\nsubmitted to BDA which shall be placed\r\nbefore the Committee to ascertain as to\r\nwhether the lands of the applicants are\r\nlandlocked and/or adjacent lands\r\nhaving been dropped from acquisition\r\nwithout dropping the lands of the\r\napplicants. The Committee shall\r\nexamine the claim on case to case basis\r\nand on being satisfied either such claim\r\nbeing genuine or being contrary to\r\nfactual scenario shall prepare a report\r\nvillage wise and forward the same to the\r\nBDA to enable the said authority to\r\neither delete such lands from acquisition\r\nor conclude the acquisition.\r\n</b></p><p><b>(c) The Committee shall either by itself or\r\nthrough its empowered officers carryout\r\ninspection of all 16 villages where sites\r\nhave been carved in Arkavati Layout by\r\nidentifying such sites in respect of which \r\n747\r\nallotment letters, possession certificate\r\nhas been issued and recommend to the\r\nBDA to handover possession of such\r\nsites to the allottees forthwith for\r\nensuring the process of allotment is\r\ntaken to its logical end by forwarding a\r\nreport in that regard to the BDA\r\nexpeditiously and preferably within a\r\nperiod of four (4) months today. On\r\nreceipt of such report from the\r\nCommittee, BDA shall expeditiously and\r\nnot later than one (1) month from the\r\ndate of receipt of such report shall\r\nexecute the Lease cum Sale Agreement\r\nor absolute Sale Deed, as the case may\r\nbe, by confirming possession of such\r\nsites having been handed over or\r\ndelivered to the allottees.\r\n</b></p><p><b>(d) The Committee shall examine as to\r\nwhether the claim of land owners for\r\ndeleting their lands from being acquired\r\nis within the parameters or the \r\n748\r\ndirections issued by the Division Bench\r\nand the Hon’ble Apex Court in BONDU\r\nRAMASWAMY’s case and if so, shall\r\nsubmit a report to the BDA to the said\r\neffect and pursuant to the same BDA\r\nshall take steps accordingly to either\r\ndelete the land or proceed with allotment\r\nof the sites to the applicants that may be\r\nformed in such lands.\r\n</b></p><p><b>(e) The Committee shall examine as to\r\nwhether deletion of land/s from\r\nacquisition made by the BDA is within\r\nthe parameters fixed by Division Bench\r\nand BONDU RAMASWAMY\'s case by\r\nexamining every such deletion made on\r\ncase to case basis and particularly with\r\nreference to deletion made on the\r\nground of adjacent lands having been\r\ndeleted.\r\n</b></p><p><b>(f) The Committee shall also examine the\r\nclaim of the applicants on case to case\r\nbasis for deletion of lands on the ground \r\n749\r\nof area being built-up by considering or\r\nlooking into the scientific evidence that\r\nmay be secured by the Committee as\r\nnoticed hereinabove.\r\n</b></p><p><b>(g) The Committee shall examine the claim\r\nof the applicants on case to case basis\r\nfor deletion of lands from acquisition on\r\nthe ground of buildings having been\r\nconstructed by ascertaining as to\r\nwhether such buildings have come up\r\nprior to the Preliminary Notification\r\ndated 03.02.2003 or thereafter. It is\r\nmade clear that such buildings/sheds\r\nconstructed with asbestos sheets or tiled\r\nroof, shall not be eligible to be\r\nconsidered as a pucca building for the\r\npurposes of exclusion from acquisition\r\neven if so claimed by the applicants.\r\n</b></p><p><b>(h) The Committee shall examine as to\r\nwhether deletion of 983.12 acres of land\r\nby the Government subsequent to the\r\nNotification dated 23.02.2004 and before \r\n750\r\nissuance of Notification dated\r\n18.06.2014 was in accordance of dicta\r\nlaid down by the Division Bench and in\r\ncompliance with directions/clarifications\r\nissued by Hon’ble Apex Court in BONDU\r\nRAMASWAMY’s case and submit a\r\nreport to the BDA, who shall take steps\r\nbased on said report.\r\n</b></p><p><b>(i) The Committee shall also examine the\r\napplications of revenue site holders for\r\nallotment of sites in accordance with the\r\nextant Circular of BDA dated\r\n09.06.2017 and Resolution dated\r\n18.04.2017 keeping in mind the law laid\r\ndown in JUNJAMMA’s case and also\r\nkeeping in mind paragraph 3.2 of the\r\nmemo filed before the Division Bench\r\nwhereunder BDA has undertaken to\r\nallot a site measuring 30\' X 40\' in favour\r\nof revenue site holders, whose revenue\r\nsites had been acquired, which would be\r\nin terms of the order/direction issued in \r\n751\r\nW.P.Nos.20875-938/2001 dated\r\n20.07.2021 (Anjanapura Scheme).\r\n</b></p><p><b>(j) The Committee shall examine as to\r\nwhether on Layout/s formed by Housing\r\nCo-operative Societies or House Building\r\nCo-operative Societies or registered\r\nUnion or registered Association wherein\r\nsites have been formed and allotted to\r\nits Members wherein construction of\r\nbuildings have come up by conducting\r\nspot inspection either by itself or\r\nthrough its empowered officers and if\r\nthe Committee is of the view that it is a\r\nself contained Layout, a report to said\r\neffect shall be submitted to BDA, upon\r\nwhich BDA shall delete the said lands\r\nfrom acquisition. However, it is made\r\nclear that if BDA has taken possession\r\nof such lands and has already formed\r\nsites, allotment made, then claim of the\r\nMembers of the Co-operative Society for\r\nallotment of alternate site would only be \r\n752\r\nconsidered by the BDA and it is made\r\nclear that said benefit would be available\r\nonly to the applicants or Members of the\r\nSociety/Union/Association, who have\r\npurchased the property under registered\r\nsale deed from such Housing Cooperative Society or House Building Cooperative Society or Registered Union or\r\nRegistered Association, as the case may\r\nbe.\r\n</b></p><p><b>(k) The BDA shall publish the operative\r\nportion of this order in any two (2)\r\nvernacular newspapers consecutively on\r\ntwo (2) dates within a gap of 10 days\r\nfrom today, so as to avoid issuance of\r\nindividual notices by the Committee and\r\nit is made clear that there would be no\r\nneed or necessity to issue individual\r\nnotices by the Committee.\r\n</b></p><p><b>(l) The Committee would at liberty to\r\nexamine as to whether BDA has\r\nundertaken any exercise to delete lands \r\n753\r\nsuo motu and if it is so found, the\r\nexercise so undertaken by BDA would\r\nstand quashed if it is not in conformity\r\nwith the order passed by the Division\r\nBench as affirmed and clarified by the\r\nApex Court, to which effect the\r\nCommittee shall submit a report to BDA\r\nand on such report being submitted, the\r\ndeleted lands would stand restored to\r\nBDA for the purposes of formation of\r\nsites in Arkavati Layout to be allotted to\r\nthe applicants in waiting.\r\n</b></p><p><b>(xxi) All lands which are the subject matter of\r\nacquisition for the purpose of Arkavati Layout if\r\nhaving been converted, layout formed, sites\r\ncarved and constructions having been put-up\r\nprior to issuance of Preliminary Notification dated\r\n03.02.2003, would be entitled for deletion from\r\nacquisition, subject to report being submitted by\r\nthe Committee to the said effect.\r\n</b></p><p><b>(xxii) All writ petitions which have not been specifically\r\ndealt with hereinabove is deemed to have been \r\n754\r\ndisposed of in terms of the above order and all\r\npending interlocutory applications stands\r\nconsigned to records.&nbsp;&nbsp;</b><br></p>', '341c1807a4f5692b8fcb8baba9991025.jpg', '3965422ad00a51ffbf9548db2330da28.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-06', 1, '', '', '2021-10-06 19:57:28', '2021-10-06 19:57:28');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1066, 'wQHEibsfaC9k0kShvOqY6w3m3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Acquittal of a candidate in a criminal case involving moral turpitude, since the complainants turned hostile, does not amount to \'honorable acquittal\' and his candidature can be rejected. Supreme Court. ', '<p><b>Union of India vs Methu Meda<br>Civil Appeal 6238 of 2021 decided on 6 October 2021.<br>Justice Indira Banerjee and Justice J.K. Maheshwari. <br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2014/18187/18187_2014_8_1501_30676_Judgement_06-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2014/18187/18187_2014_8_1501_30676_Judgement_06-Oct-2021.pdf</a></b></p><p><b>14. The   expression   ‘honourable   acquittal’   has   been considered   in   the   case   of   Inspector General of\r\nPolice & Another vs. S. Samuthiram (2013) 1 SCC 598 after considering   the   judgments   of  Reserve   Bank   of   India   vs. Bhopal Singh Panchal (1994)1 SCC 541, R.P. Kapur vs. Union of India AIR 1964\r\nSC 787, State of Assam  &\r\nAnother vs. Raghava Rajgopalachari, (1972) 7 SLR 44; this Court observed that the standard of proof required for holding a person guilty by a criminal court and enquiry conducted by way of disciplinary proceeding is entirely different.  In a criminal case, the onus of establishing guilt of the accused is on the prosecution, until proved beyond reasonable doubt.   In case, the prosecution failed   to   take   steps   to   examine   crucial   witnesses     or   the witnesses turned hostile, such acquittal would fall within the purview of giving benefit of doubt and the accused cannot be treated as honourably acquitted by the criminal court. While, in a case of   departmental   proceedings, the guilt may be proved on the basis of preponderance and probabilities, it is thus observed that acquittal giving benefit of doubt would not automatically lead to  reinstatement of  candidate unless the rules provide so.</b></p><p><b>15. Recently, this Court in  Union   Territory,   Chandigarh Administration   and   Ors.   vs.   Pradeep   Kumar   and   Anr. (2018)   1   SCC   797,   relying   upon   the   judgment   of  S.  Inspector General of\r\nPolice & Another vs. S. Samuthiram (2013) 1 SCC 598 said that acquittal in a criminal case is not conclusive of the suitability of the candidates on the post concerned.  It is observed,   acquittal or discharge of a person cannot always be inferred that he was falsely involved or he had no criminal antecedent.   The said issue has further been considered in New\r\nDelhi and Another vs. Mehar Singh (2013)7 SCC 685  holding  non­examination of   key   witnesses   leading   to   acquittal   is   not   honourable acquittal, in fact, it is by giving benefit of doubt.  The Court said  nature of acquittal is necessary for core consideration. If acquittal is not honourable, the candidates are not suitable for government service and are to be avoided. The relevant factors and   the   nature   of   offence,   extent   of   his   involvement, propensity of such person to indulge in   similar activities in future,   are   the   relevant   aspects   for   consideration   by   the Screening Committee, which is  competent to decide  all these issues.</b></p><p><b>16. In the present case, the charges were framed against the respondent   for   the   offences   punishable     under   Sections 347/327/323/506(Part­II) and 364A IPC.   He was acquitted after trial   vide judgment dated 19.03.2010 by the Sessions Judge, Jhabua because the person kidnapped Nilesh and also his wife have not supported the case of prosecution.  As per 11 prosecution, the complainant was beaten  by the respondent and the said fact found support from the evidence of doctor. Therefore, it appears that the Committee was of the view that acquittal of the respondent, in the facts of the present case, cannot     be   termed   as   ‘honourable   acquittal’   and   the   said acquittal may be treated by giving benefit of doubt.</b></p><p><b>17. The law with regard to the effect and consequence of the acquittal, concealment of criminal case on appointments  etc. has been settled in the case of Avtar   Singh   vs.  Union  of   India  and\r\nOthers  (2016)8   SCC   471, wherein a three­Judge Bench of this Court  decided, as thus:</b></p><p><b><i>“38. We have noticed various decisions and tried to explain and reconcile them as far as possible.   In view of the aforesaid discussion, we summarize our conclusion thus: </i></b></p><p><b><i>“38.1  Information   given   to   the   employer   by   a candidate   as   to   conviction,   acquittal   or   arrest,   or pendency of a criminal case, whether before or after entering into service must be true and there should be   no   suppression   or   false   mention   of   required information.  </i></b></p><p><b><i>38.2. While passing order of termination of services or   cancellation   of   candidature   for   giving   false information, the employer may take notice of special 12 circumstances of the case, if any, while giving such information.  </i></b></p><p><b><i>38.3. The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.  </i></b></p><p><b><i>38.4.  In   case   there   is   suppression   or   false information of involvement in a criminal case where conviction   or   acquittal   had   already   been   recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted :  </i></b></p><p><b><i>38.4.1. In a case trivial in nature in which conviction had   been   recorded,   such   as   shouting   slogans   at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in   question,   the   employer   may,   in   its   discretion, ignore such suppression of fact or false information by condoning the lapse.  </i></b></p><p><b><i>38.4.2  Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.  </i></b></p><p><b><i>38.4.3  If acquittal had already been recorded in a case   involving   moral   turpitude   or   offence   of heinous/serious nature, on technical ground and it is   not   a   3  case   of   clean   acquittal,   or   benefit   of reasonable doubt has been given, the employer may consider   all   relevant   facts   available   as   to antecedents, and may take appropriate decision as to the continuance of the employee.  </i></b></p><p><b><i>38.5.  In   a   case   where   the   employee   has   made declaration truthfully of a concluded criminal case, the   employer   still   has   the   right   to   consider antecedents, and cannot be compelled to appoint the candidate.  </i></b></p><p><b><i>38.6. In case when fact has been truthfully declared in character verification form regarding pendency of 13 a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint  the  candidate subject  to  decision of such case.  </i></b></p><p><b><i>38.7. In a case of deliberate suppression of fact with respect   to   multiple   pending   cases   such   false information by itself will assume significance and an employer   may   pass   appropriate   order   cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.  38.8. If criminal case was pending but not known to the candidate at the time of filling the form, still it may   have   adverse   impact   and   the  appointing authority would take decision after considering the seriousness of the crime.  </i></b></p><p><b><i>38.9.  In case the employee is confirmed in service, holding   Departmental   enquiry   would   be   necessary before   passing   order   of   termination/removal   or dismissal   on   the   ground   of   suppression   or submitting false information in verification form.  </i></b></p><p><b><i>38.10.  For   determining   suppression   or   false information  attestation/verification   form  has  to  be specific, not vague. Only such information which was required  to  be  specifically mentioned  has  to  be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot   be   taken   on   basis   of   suppression   or  submitting false information as to a fact which was not even asked for. </i></b></p><p><b><i>38.11. Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.” </i></b></p><p><b><br></b></p><p><br></p>', 'aa8aeba2b02d7ac9b73f938c7958f832.JPG', '77f7ae0e7a68ef6d643ab5db47664e0b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-06', 1, '', '', '2021-10-07 00:26:36', '2021-10-07 00:28:09'),
(1067, '4wuTFhDvLJfcEajlojgwhvF18', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Supreme Court explains \'honorable acquittal in a criminal case\' in its latest judgment. ', '<p><b>Union of India vs Methu Meda</b></p><p><b>Civil Appeal 6238 of 2021 decided on 6 October 2021.</b></p><p><b>Justice Indira Banerjee and Justice J.K. Maheshwari. </b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2014/18187/18187_2014_8_1501_30676_Judgement_06-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2014/18187/18187_2014_8_1501_30676_Judgement_06-Oct-2021.pdf</a></b></p><p><b>14. The   expression   ‘honourable   acquittal’   has   been considered   in   the   case   of   Inspector General of Police & Another vs. S. Samuthiram (2013) 1 SCC 598 after considering   the   judgments   of  Reserve   Bank   of   India   vs. Bhopal Singh Panchal (1994)1 SCC 541, R.P. Kapur vs. Union of India AIR 1964 SC 787, State of Assam  & Another vs. Raghava Rajgopalachari, (1972) 7 SLR 44; this Court observed that the standard of proof required for holding a person guilty by a criminal court and enquiry conducted by way of disciplinary proceeding is entirely different.  In a criminal case, the onus of establishing guilt of the accused is on the prosecution, until proved beyond reasonable doubt.   In case, the prosecution failed   to   take   steps   to   examine   crucial   witnesses     or   the witnesses turned hostile, such acquittal would fall within the purview of giving benefit of doubt and the accused cannot be treated as honourably acquitted by the criminal court. While, in a case of   departmental   proceedings, the guilt may be proved on the basis of preponderance and probabilities, it is thus observed that acquittal giving benefit of doubt would not automatically lead to  reinstatement of  candidate unless the rules provide so.</b></p><p><b>15. Recently, this Court in  Union   Territory,   Chandigarh Administration   and   Ors.   vs.   Pradeep   Kumar   and   Anr. (2018)   1   SCC   797,   relying   upon   the   judgment   of  S.  Inspector General of Police & Another vs. S. Samuthiram (2013) 1 SCC 598 said that acquittal in a criminal case is not conclusive of the suitability of the candidates on the post concerned.  It is observed,   acquittal or discharge of a person cannot always be inferred that he was falsely involved or he had no criminal antecedent.   The said issue has further been considered in New Delhi and Another vs. Mehar Singh (2013)7 SCC 685  holding  non­examination of   key   witnesses   leading   to   acquittal   is   not   honourable acquittal, in fact, it is by giving benefit of doubt.  The Court said  nature of acquittal is necessary for core consideration. If acquittal is not honourable, the candidates are not suitable for government service and are to be avoided. The relevant factors and   the   nature   of   offence,   extent   of   his   involvement, propensity of such person to indulge in   similar activities in future,   are   the   relevant   aspects   for   consideration   by   the Screening Committee, which is  competent to decide  all these issues.</b></p><p><b>16. In the present case, the charges were framed against the respondent   for   the   offences   punishable     under   Sections 347/327/323/506(Part­II) and 364A IPC.   He was acquitted after trial   vide judgment dated 19.03.2010 by the Sessions Judge, Jhabua because the person kidnapped Nilesh and also his wife have not supported the case of prosecution.  As per 11 prosecution, the complainant was beaten  by the respondent and the said fact found support from the evidence of doctor. Therefore, it appears that the Committee was of the view that acquittal of the respondent, in the facts of the present case, cannot     be   termed   as   ‘honourable   acquittal’   and   the   said acquittal may be treated by giving benefit of doubt.</b></p><p><b>17. The law with regard to the effect and consequence of the acquittal, concealment of criminal case on appointments  etc. has been settled in the case of Avtar   Singh   vs.  Union  of   India  and Others  (2016)8   SCC   471, wherein a three­Judge Bench of this Court  decided, as thus:</b></p><p><b><i>“38. We have noticed various decisions and tried to explain and reconcile them as far as possible.   In view of the aforesaid discussion, we summarize our conclusion thus:</i></b></p><p><b><i>“38.1  Information   given   to   the   employer   by   a candidate   as   to   conviction,   acquittal   or   arrest,   or pendency of a criminal case, whether before or after entering into service must be true and there should be   no   suppression   or   false   mention   of   required information. </i></b></p><p><b><i>38.2. While passing order of termination of services or   cancellation   of   candidature   for   giving   false information, the employer may take notice of special 12 circumstances of the case, if any, while giving such information. </i></b></p><p><b><i>38.3. The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision. </i></b></p><p><b><i>38.4.  In   case   there   is   suppression   or   false information of involvement in a criminal case where conviction   or   acquittal   had   already   been   recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted : </i></b></p><p><b><i>38.4.1. In a case trivial in nature in which conviction had   been   recorded,   such   as   shouting   slogans   at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in   question,   the   employer   may,   in   its   discretion, ignore such suppression of fact or false information by condoning the lapse. </i></b></p><p><b><i>38.4.2  Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee. </i></b></p><p><b><i>38.4.3  If acquittal had already been recorded in a case   involving   moral   turpitude   or   offence   of heinous/serious nature, on technical ground and it is   not   a   3  case   of   clean   acquittal,   or   benefit   of reasonable doubt has been given, the employer may consider   all   relevant   facts   available   as   to antecedents, and may take appropriate decision as to the continuance of the employee. </i></b></p><p><b><i>38.5.  In   a   case   where   the   employee   has   made declaration truthfully of a concluded criminal case, the   employer   still   has   the   right   to   consider antecedents, and cannot be compelled to appoint the candidate. </i></b></p><p><b><i>38.6. In case when fact has been truthfully declared in character verification form regarding pendency of 13 a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint  the  candidate subject  to  decision of such case. </i></b></p><p><b><i>38.7. In a case of deliberate suppression of fact with respect   to   multiple   pending   cases   such   false information by itself will assume significance and an employer   may   pass   appropriate   order   cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.  38.8. If criminal case was pending but not known to the candidate at the time of filling the form, still it may   have   adverse   impact   and   the  appointing authority would take decision after considering the seriousness of the crime. </i></b></p><p><b><i>38.9.  In case the employee is confirmed in service, holding   Departmental   enquiry   would   be   necessary before   passing   order   of   termination/removal   or dismissal   on   the   ground   of   suppression   or submitting false information in verification form. </i></b></p><p><b><i>38.10.  For   determining   suppression   or   false information  attestation/verification   form  has  to  be specific, not vague. Only such information which was required  to  be  specifically mentioned  has  to  be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot   be   taken   on   basis   of   suppression   or  submitting false information as to a fact which was not even asked for.</i></b></p><p><b><i>38.11. Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.” </i></b></p>', '0c8217ce7d2d923cf2c15e9f6f54c339.JPG', 'a2daadc3358fb021fb7d305bc6b4c02d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-06', 1, '', '', '2021-10-07 00:46:47', '2021-10-07 00:47:31'),
(1069, 'yBh0cNG2xz2paERWobA2OKJJW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court lays down exhaustive guidelines on court fee payable in respect of agricultural lands, revenue lands and non-agricultural lands. ', '<p><b>Anjanappa vs Krishnappa and others.&nbsp;<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Writ Petition 57930 of 2015 decided on 24 August 2021.<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/411590/1/WP57930-15-24-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/411590/1/WP57930-15-24-08-2021.pdf</a></b></p><p></p><p><b>1.The plaintiff is the writ petitioner, who is challenging an order of the trial Court, by which, he has been directed to file&nbsp; a fresh valuation slip and pay proper Court fee as per Section 35(1) of the Karnataka Court - Fees and Suits Valuation Act, 1958.&nbsp;</b></p><p><b>55. The common perception of market value of a land or the perception of market value of land for the purposes of the Stamp Act cannot be imported into the 1958 Act in respect of the 14 categories of suits mentioned in Section 7(2) of the 1958 Act. It is to be kept in mind that unlike the Stamp Act, the Court Fees Act is not a statute enacted for raising resources for the State, though both statutes are fiscal statutes.</b></p><p><b>56. To put it differently, the Stamp Act contemplates levying a duty whenever a transfer is effected which normally results in a financial consequence to one or both parties. The Court Fees Act, however, intends to levy a fee for a person who desires determination of a legal right in a Court. The perception of market value is thus designedly different and this marked difference in determination of market value in totally different ways under the two Acts will have to be accepted since the two statutes operate in different context. It is to be stated here that the perception and definition of a market value of land under the Stamp Act cannot be made applicable to the suits filed under the Court Fees Act by virtue of Section 7 of the 1958 Act.&nbsp;</b></p><p><b>57. The illustration for this would be lands which are used for agriculture. It cannot be in dispute that under Section 80 of the Karnataka Land Revenue Act (KLR, for short) all lands which are used for agricultural purposes or other purposes are liable for payment of land revenue, except those exempted from the provisions of the Act.</b></p><p><b>58. Section 83 of the KLR Act provides for the manner of assessment and commutation of non-agricultural assessment and prohibition of use of land for certain purposes. It declares that land revenue leviable on any land under the Act, shall be assessed with reference to use of the land for the purpose of agriculture.</b></p><p><b>60. If the revenue is permanently settled, the market value of the land would be twenty five times the land revenue payable. If the revenue is not permanently settled, the market value of the land would be twelve and half times the revenue payable.</b></p><p><b>62. If, however, no land revenue is payable for the land or is partially exempted from paying land revenue or is charged with any fixed payment, the deemed market value of the land would be either 15 times the net profits that the land fetched in the year preceding the plaint or 30 times the land revenue&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">payable for similar extent of comparable lands in the neighborhood, whichever is lower.</b></p><p><b>63. The illustration for lands for which no land revenue payable would be lands which are permitted to be used for non-agricultural purposes under Section 95 of the KLR Act. This is because on permission for using lands for non- agricultural purposes being granted, Section 95(7) of the KLR Act mandates that no assessment shall be leviable on the said land, save for cases coming within the ambit of Section 83(2) of the KLR Act (i.e., lands which are permitted to be used for non-agricultural purposes, but which are used for agricultural purposes).</b></p><p><b>66. In other words, in respect of lands which are permitted to be used for non-agricultural purposes, for which no land revenue is payable (commonly termed as non-agricultural lands or converted lands), the market value of the lands for the purposes of Section 7 of the 1958 Act would be 15 times the profits the land fetched in the year preceding the filing of the plaint or 30 times the revenue of comparable lands in the neighborhood, whichever is lower. Thus, even in respect of lands which are permitted to be used for purposes other than agriculture, Court fee is not liable to be paid on the actual and prevailing market value of the land.</b></p><p><b>67. Section 7(2)(d) of the 1958 Act deals with lands with the following four other categories of lands:</b></p><p><b>a. Lands other than those described in Section 7(2)</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(a) to Section 7(2)(c) of the 1958 Act.</b></p><p><b>b. Lands which are either garden lands or</b></p><p><b>c. The land is a house site whether assessed to revenue or not;</b></p><p><b>d. The land is not within the foregoing description of lands in Section 7(2) of the 1958 Act.</b></p><p><b>80. The reasoning of the Trial Court that as per the sale deeds produced by the plaintiffs, the defendants were in possession and therefore joint possession of the plaintiffs cannot be believed, cannot be accepted simply because the defendants by virtue of the sale had merely stepped into the shoes of defendant Nos.1 to 3, the coparceners of the plaintiffs and that cannot amount to an admission by the plaintiffs that they were excluded from possession as envisaged under Section 35 (1) of the 1958 Act.</b></p><p><br></p>', '2d574ad9010a61735657fd862fb8c4df.jpg', '62a66a15052aa5aa2884de4358db4afa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-07', 1, '', '', '2021-10-07 22:29:46', '2021-10-07 22:29:46'),
(1070, 'AhupBHwpsQkCpqu3Vp54ff2SK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Stamp Act, 1957. Impounding of document. Though Courts have no discretion to impose less than ten times penalty, Courts can grant reasonable time or easy installments to pay penalty. Karnataka High Court. ', '<p><b>Seetharama Shetty vs Monappa Shetty <br>Review Petition 340 of 2021<br>Judgement Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/411525/1/RP340-19-14-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/411525/1/RP340-19-14-09-2021.pdf</a></b></p><p><b>3. Having heard the Bar and having perused the Petition Papers, this court framed the following questions of law for consideration:</b></p><p><b><i>(i) Whether in terms of the provisions of Chapter IV of the 1957 Act,  discretion  lies with the adjudicating authorities to waive or reduce the penalty which the legislature has fixed at ten times the deficit stamp duty payable on the instrument impounded... ?</i></b></p><p><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(ii) </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Whether the adjudicating authorities have discretion to grant  reasonable time  for the payment of deficit stamp duty on it’s quantification and the penalty thereon </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">depending </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">upon </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the circumstances of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the case... ?</span></i></b></p><p><b><i>(iii) Whether the State & it’s authorities should be notified and heard by the adjudicatory authorities if question as to inadequacy of stamp duty concerning an instrument should arise for consideration…?</i></b></p><p><b>(h) Thus, in the light of decisions of the Apex Court and of this Court referred to above, what emerges as a legal position is: inter alia under the provisions of sections 33 & 34 of the 1957 Act the adjudicating authorities such as courts, arbitrators, etc., do not have discretion to disobey the legislative command to recover the deficit stamp duty along with the prescribed “ten times penalty” thereon; they do not have any power to waive or reduce the penalty in any circumstance; however, the discretion cannot be denied to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">adjudicating bodies to grant a reasonable time for  the payment of duty & penalty and that this discretion has to be exercised in accordance with the rules of reason & justice; Courts may grant easy installments too if a case is made out therefor; appropriate conditions for securing the  payment may also be imposed; ultimately, what needs to be kept in mind is that what is payable to Caesar, the citizen should not shirk from paying; in deciding the duty & penalty and also in granting time to pay the same, it is imperative to notify and to hear the Government Counsel, whether State  &  its  authorities are parties to the case eo nomine  or  not,  inasmuch as, the Exchequer obviously will have stake in the matter; such  a  wider  audience  would  also  assist determination of the issue properly; this course of procedure would be consistent with the principles of natural  justice, also.</span></b></p><p><b>In the above circumstances, this Review Petition fails; however, in the peculiar circumstances of the case, the petitioner is granted a period of six months to pay the deficit stamp duty along with the ten times penalty, if already not paid.</b></p><p><br></p>', '6d15b654ee8a339f6b1dfdca7f9fb291.jpg', '7cb9709e7c96f01457ae5871c605df13.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-07', 1, '', '', '2021-10-08 02:15:42', '2021-10-08 02:16:39'),
(1071, 'lYhjiZMZ8uiej9iB2IzQWUH7l', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Tuition Fee issue. Supreme Court clarifies that School Management can initiate appropriate action for recovery of the outstanding dues/amount from the parents in accordance with law. ', '<p><b>IN THE SUPREME COURT OF INDIA\r\nCIVIL APPELLATE JURISDICTION\r\nMISCELLANEOUS APPLICATION NO. 1399/2021\r\nIN\r\nCIVIL APPEAL NO. 1736/2021\r\n<br>PROGRESSIVE SCHOOLS ASSOCIATION APPLICANT(S)/\r\nAPPELLANT(S)\r\n VERSUS\r\nTHE STATE OF RAJASTHAN &amp; ANR. <br>NON-APPLICANT(S)/\r\n RESPONDENT(S)\r\nWITH\r\nMISCELLANEOUS APPLICATION NOS. 1400-1402/2021\r\nIN\r\nCIVIL APPEAL NOS. 1733-1735/2021\r\nO R D E R\r\nMISCELLANEOUS APPLICATION NO. 1399/2021<br></b></p><p><b>MISCELLANEOUS APPLICATION NO. 1399/2021\r\nWe have heard learned counsel for the\r\nparties.\r\n</b></p><p><b>The principal relief claimed in this\r\napplication filed by the Progressive Schools\r\nAssociation (for short, ‘the School\r\nManagement’) is that this Court must clarify\r\nparagraph 117 of the judgment dated 03.05.2021\r\nin Civil Appeal No.1724 of 2021 to mean that it\r\ndoes not prohibit the schools from taking coercive action against the students who have\r\nfailed to pay the installments as per the\r\narrangement predicated in the stated judgment.\r\n</b></p><p><b>Amongst others, the judgment directs the\r\nSchool Management not to debar any student from\r\nattending either on-line classes or physical\r\nclasses on account of non-payment of fees,\r\narrears/outstanding fees including the\r\ninstallments, referred to in the judgment, and\r\nshall not withhold the results of the\r\nexaminations of any student on that account.\r\nFurther, if any individual request is made by\r\nthe parent/ward finding it difficult to remit\r\nannual fees for the academic year 2020-2021 in\r\nterms of the stated judgment, the School\r\nManagement to consider such representation on\r\ncase-to-case basis sympathetically.\r\n</b></p><p><b>Our attention is also invited to clauses\r\n(vi) and (vii) of paragraph 117 of the stated\r\njudgment. Suffice it to clarify that the spirit\r\nof the direction given in the stated judgment\r\nwas to give time to the concerned parent/ward\r\nto pay the fees as specified therein —&nbsp; including by way of installments. That does not\r\nand did not extricate the parent/ward from the\r\nliability to pay the amount specified in the\r\njudgment in any manner.</b></p><p><b>\r\nIt is rightly pointed out by the School\r\nManagement that the last date for paying the\r\ninstallments referred to in the stated judgment\r\nhas already expired long back and despite that\r\nthere are some parents/wards who are still in\r\narrears and have committed default. It is open\r\nto the School Management to initiate\r\nappropriate action for recovery of the\r\noutstanding dues/amount, if any, in accordance\r\nwith law. At the same time, if the concerned\r\nparent/ward seeks some indulgence for just\r\nreasons, it will be open to the School\r\nManagement to consider such request\r\ncompassionately. Besides this, nothing more is\r\nrequired to be said.\r\n</b></p><p><b>Obviously, if the final decision of the\r\nSchool Management on the request so made is\r\nunacceptable to the parent/ward, it will be\r\nopen for such person to assail the same before the appropriate forum only in the event of the\r\ndemand made being excessive and beyond the\r\npermissible amount in terms of the judgment\r\ndated 03.05.2021.\r\n</b></p><p><b>We reiterate that the recovery process\r\nshould be strictly in accordance with law; and\r\nthe pronouncement of this Court vide judgment\r\ndated 03.05.2021 in Civil Appeal No.1724 of\r\n2021 and connected cases should be strictly\r\nadhered to by all concerned in its letter and\r\nspirit.\r\n</b></p><p><b>Miscellaneous application is disposed of\r\naccordingly.\r\n</b></p><p><b><br></b></p><p><b>MISCELLANEOUS APPLICATION NOS. 1400-1402/2021\r\nIn addition to above, in the context of\r\nrelief claimed in these applications, besides\r\nthe observation made in Miscellaneous\r\nApplication no.1399 of 2021, we accede to the\r\nprayer clause (1) of these applications.\r\nThe rest of the prayers cannot be\r\nentertained as all aspects have been clearly\r\ndealt with in the judgment dated 03.05.2021.\r\n5\r\nWe dispose of these applications with the\r\nrequest to the High Court of Rajasthan, Jaipur\r\nBench to expeditiously dispose of writ\r\npetitions filed by the Applicant-Society and\r\npending before it.\r\nIt will be open to the applicant(s) to\r\nproduce copy of this order while mentioning\r\nbefore the High Court for expeditious hearing\r\nof their pending writ petitions, in terms of\r\nthis order.\r\n....................,J.\r\n (A.M. KHANWILKAR)\r\n....................,J.\r\n (C.T. RAVIKUMAR)\r\nNEW DELHI\r\nOCTOBER 01, 2021</b><br></p>', '9ddebdfa924f4ed0e56f404cc8b78e23.JPG', '77b224080d0d8cd409ad5070d58a7414.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-07', 1, '', '', '2021-10-08 04:01:55', '2021-10-08 04:01:55'),
(1072, 'lpqGU8cPkrVYfti5O0HgqJhfm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Dishonor of cheques issued under a compromise during the original proceedings gives rise to fresh cause of action. Original complaint can NOT be proceeded with. Supreme Court.   ', '<p><b>M/s. Gimpex Private Limited vs Manoj Goel<br>Criminal Appeal 1068 of 2021 decided on 8 October 2021.<br>Justice&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Dr. Dhananjaya Y Chandrachud,&nbsp;Justice Vikram Nath and Justice B.V. Nagarathna&nbsp;<br>Judgment Link:&nbsp;</span><a href=\"https://main.sci.gov.in/supremecourt/2019/24402/24402_2019_34_1502_30692_Judgement_08-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/24402/24402_2019_34_1502_30692_Judgement_08-Oct-2021.pdf</a></b></p><p><b>23 The question before this Court is whether parallel prosecutions arising from a\r\nsingle transaction under Section 138 of the NI Act can be sustained. In this case, a\r\nset of cheques were dishonoured, leading to filing of the first complaint under\r\nSection 138 of the NI Act. The parties thereafter entered into a deed of compromise\r\nto settle the matter. While the first complaint was pending, the cheques issued\r\npursuant to the compromise deed were dishonoured leading to the second\r\ncomplaint under Section 138 of the NI Act. Both proceedings are pending\r\nsimultaneously and it is for this Court to decide whether the complainant can be\r\nallowed to pursue both the cases or whether one of them must be quashed and the\r\nconsequences resulting from such quashing.</b></p><p><b>25. The ingredients of the offence under Section 138 are:\r\n<br>(i) The drawing of a cheque by person on an account maintained by him with the\r\nbanker for the payment of any amount of money to another from that account;\r\n<br>(ii) The cheque being drawn for the discharge in whole or in part of any debt or\r\nother liability;\r\n<br>(iii) Presentation of the cheque to the bank;<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(iv) The return of the cheque by the drawee bank as unpaid either because the\r\namount of money standing to the credit of that account is insufficient to&nbsp;honour the cheque or that it exceeds the amount arranged to be paid from\r\nthat account;\r\n<br>(v) A notice by the payee or the holder in due course making a demand for the\r\npayment of the amount to the drawer of the cheque within 30 days of the\r\nreceipt of information from the bank in regard to the return of the cheque; and\r\n<br>(vi) The drawer of the cheque failing to make payment of the amount of money to\r\nthe payee or the holder in due course within 15 days of the receipt of the\r\nnotice.</span></b></p><p><b>27. The nature of the offence under Section 138 of the NI Act is quasi-criminal in\r\nthat, while it arises out of a civil wrong, the law, however, imposes a criminal penalty\r\nin the form of imprisonment or fine. The purpose of the enactment is to provide\r\nsecurity to creditors and instil confidence in the banking system of the country.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p><b>37. Allowing prosecution under both sets of complaints would be contrary to the\r\npurpose of the enactment. As noted above, it is the compensatory aspect of the\r\nremedy that should be given priority as opposed to the punitive aspect. The\r\ncomplainant in such cases is primarily concerned with the recovery of money, the\r\nconviction of the accused serves little purpose. In fact, the threat of jail acts as a\r\nstick to ensure payment of money.&nbsp;<br></b></p><p><b>38 When a complainant party enters into a compromise agreement with the\r\naccused, it may be for a multitude of reasons – higher compensation, faster\r\nrecovery of money, uncertainty of trial and strength of the complaint, among others.\r\nA complainant enters into a settlement with open eyes and undertakes the risk of the\r\naccused failing to honour the cheques issued pursuant to the settlement, based on\r\ncertain benefits that the settlement agreement postulates. Once parties have&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">voluntarily entered into such an agreement and agree to abide by the consequences\r\nof non-compliance of the settlement agreement, they cannot be allowed to reverse\r\nthe effects of the agreement by pursuing both the original complaint and the\r\nsubsequent complaint arising from such non-compliance. The settlement agreement\r\nsubsumes the original complaint. Non-compliance of the terms of the settlement\r\nagreement or dishonour of cheques issued subsequent to it, would then give rise to\r\na fresh cause of action attracting liability under Section 138 of the NI Act and other\r\nremedies under civil law and criminal law.&nbsp;&nbsp;</span></b></p><p><b>40 Thus, in our view, a complainant cannot pursue two parallel prosecutions for\r\nthe same underlying transaction. Once a settlement agreement has been entered\r\ninto by the parties, the proceedings in the original complaint cannot be sustained\r\nand a fresh cause of action accrues to the complainant under the terms of the\r\nsettlement deed.<br></b></p><p><b>54 ....... In the event that the\r\ncompromise deed is found to be void ab initio on account of coercion, the very basis\r\nfor quashing of the first complaint is removed since the settlement agreement is\r\ndeemed to have never existed and hence it had no effect on the liability subsisting\r\nunder the first complaint. The appellants may then approach the competent court for\r\nreinstatement of the original complaint and the trial can proceed on that basis.<br></b><br></p>', '448aceceaf8d0eefb78cce1b8221156e.jpeg', '9730d3d98fc45cc798e2143ad3904815.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-08', 1, '', '', '2021-10-08 17:10:22', '2021-10-08 17:10:22'),
(1073, 'PlcbWoxQqZoRLeWFg18BzKnAy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Compromise arrived during Section 138 proceedings found to be void ab initio. Complainants can approach the court for re-opening of the original complaint and the trial can proceed on that basis. Supreme Court', '<h4 style=\"margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\">M/s. Gimpex Private Limited vs Manoj Goel<br>Criminal Appeal 1068 of 2021 decided on 8 October 2021.<br>Justice Dr. Dhananjaya Y Chandrachud, Justice Vikram Nath and Justice B.V. Nagarathna&nbsp;<br>Judgment Link.&nbsp;&nbsp;<a href=\"Link: https://main.sci.gov.in/supremecourt/2019/24402/24402_2019_34_1502_30692_Judgement_08-Oct-2021.pdf\" target=\"_blank\">&nbsp;</a><a href=\"https://main.sci.gov.in/supremecourt/2019/24402/24402_2019_34_1502_30692_Judgement_08-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/24402/24402_2019_34_1502_30692_Judgement_08-Oct-2021.pdf<br></a>23 The question before this Court is whether parallel prosecutions arising from a single transaction under Section 138 of the NI Act can be sustained. In this case, a set of cheques were dishonoured, leading to filing of the first complaint under Section 138 of the NI Act. The parties thereafter entered into a deed of compromise to settle the matter. While the first complaint was pending, the cheques issued pursuant to the compromise deed were dishonoured leading to the second complaint under Section 138 of the NI Act. Both proceedings are pending simultaneously and it is for this Court to decide whether the complainant can be allowed to pursue both the cases or whether one of them must be quashed and the consequences resulting from such quashing.<br>25. The ingredients of the offence under Section 138 are:<br>(i) The drawing of a cheque by person on an account maintained by him with the banker for the payment of any amount of money to another from that account;<br>(ii) The cheque being drawn for the discharge in whole or in part of any debt or other liability;<br>(iii) Presentation of the cheque to the bank;<br>(iv) The return of the cheque by the drawee bank as unpaid either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account;<br>(v) A notice by the payee or the holder in due course making a demand for the payment of the amount to the drawer of the cheque within 30 days of the receipt of information from the bank in regard to the return of the cheque; and<br>(vi) The drawer of the cheque failing to make payment of the amount of money to the payee or the holder in due course within 15 days of the receipt of the notice.<br>27. The nature of the offence under Section 138 of the NI Act is quasi-criminal in that, while it arises out of a civil wrong, the law, however, imposes a criminal penalty in the form of imprisonment or fine. The purpose of the enactment is to provide security to creditors and instil confidence in the banking system of the country.&nbsp;<br>37. Allowing prosecution under both sets of complaints would be contrary to the purpose of the enactment. As noted above, it is the compensatory aspect of the remedy that should be given priority as opposed to the punitive aspect. The complainant in such cases is primarily concerned with the recovery of money, the conviction of the accused serves little purpose. In fact, the threat of jail acts as a stick to ensure payment of money.&nbsp;<br>38 When a complainant party enters into a compromise agreement with the accused, it may be for a multitude of reasons – higher compensation, faster recovery of money, uncertainty of trial and strength of the complaint, among others. A complainant enters into a settlement with open eyes and undertakes the risk of the accused failing to honour the cheques issued pursuant to the settlement, based on certain benefits that the settlement agreement postulates. Once parties have voluntarily entered into such an agreement and agree to abide by the consequences of non-compliance of the settlement agreement, they cannot be allowed to reverse the effects of the agreement by pursuing both the original complaint and the subsequent complaint arising from such non-compliance. The settlement agreement subsumes the original complaint. Non-compliance of the terms of the settlement agreement or dishonour of cheques issued subsequent to it, would then give rise to a fresh cause of action attracting liability under Section 138 of the NI Act and other remedies under civil law and criminal law.&nbsp;&nbsp;<br>40 Thus, in our view, a complainant cannot pursue two parallel prosecutions for the same underlying transaction. Once a settlement agreement has been entered into by the parties, the proceedings in the original complaint cannot be sustained and a fresh cause of action accrues to the complainant under the terms of the settlement deed.<br>54 ....... In the event that the compromise deed is found to be void ab initio on account of coercion, the very basis for quashing of the first complaint is removed since the settlement agreement is deemed to have never existed and hence it had no effect on the liability subsisting under the first complaint. The appellants may then approach the competent court for reinstatement of the original complaint and the trial can proceed on that basis.</h4><div><br></div>', 'd417130517b9af2ddf5c165e1ff92305.JPG', '6f75c57fd8c003e8033f57a55f1ccb8f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-08', 1, '', '', '2021-10-08 17:31:10', '2021-10-08 17:32:31'),
(1075, 'N82bkbXuRNIRW7oqhVIqOLWQ0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Rejection of application filed under Order XXXIX Rule 2A. Appeal is maintainable under Order XLIII Rule 1(r) against such order. Karnataka High Court.', '<p><b>Shantinath vs Iranna and others.&nbsp;<br>Miscellaneous First Appeal 201221 of 2015 decided on 5 October 2021.<br>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/411812/1/MFA201221-15-05-10-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/411812/1/MFA201221-15-05-10-2021.pdf</a></b></p><p><b>13.<span style=\"white-space:pre\">	</span>Section 104 of CPC speaks about the orders from which appeal lies. Clause (i) of sub-Section (1) of the said Section reads as below:</b></p><p><b>\"104(1). Orders from which appeal lies.-</b></p><p><b>(1)<span style=\"white-space:pre\">	</span>An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders.-</b></p><p><b>(a) to (h) xxx</b></p><p><b>(i). any order made under rules from which an appeal is expressly allowed by rules.</b></p><p><b>[Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.]\"</b></p><p><b>14.<span style=\"white-space:pre\">	</span>A conjoint reading of Section 104 (1)(i) of CPC with Order XLIII Rule 1(r) of CPC would go to show that an order of rejection of the application which application is made under Order XXXIX Rule 2-A of CPC would also be an order made under Order XXXIX Rule 2-A of CPC. As such, the appeal would lie against the said order under Order XLIII Rule 1(r) of CPC.</b></p><p><b>Therefore, the argument of the learned counsel for the respondents that the present appeal is not maintainable under Order XLIII Rule 1(r) of CPC is not acceptable.</b></p><p><b><br></b></p><p><br></p>', '43bedd06f680d0e25b641cf65b253526.jpg', '64b0d5dca177fb4551483c8ab5856b76.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-11', 1, '', '', '2021-10-11 23:24:17', '2021-10-11 23:24:17');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1076, 'RHQoskgCsUAOKHCEV7nYW1G4I', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Rejection of financial assistance under Credit Guarantee Scheme. Writ Courts cannot re-evaluate the \'prudential decisions\' of the Banks that are made in the course of commercial transactions. Karnataka High Court. ', '<p><b>Traegen Systems Private Limited and others vs South Indian Bank Limited and another&nbsp;<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Writ Petition 13071 of 2020 decided on 4 October 2021<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/412197/1/WP13071-20-04-10-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/412197/1/WP13071-20-04-10-2021.pdf</a></b></p><p><b>2. The loan account of the petitioner company having been declared as ‘NPA’ in December 2019, the respondent-Bank has taken coercive recovery proceedings&nbsp; in terms of SERFAESI Act 2002; petitioners’ request for financial assistance under Credit Guarantee Scheme for Subordinate Debt (hereafter ‘Credit Guarantee Scheme’) being rejected, they are knocking at the doors&nbsp; of&nbsp; Writ&nbsp; Court for assailing the same.</b></p><p><b>(b) The argument that the Bank being an instrumentality of the State, u/a 12 of the Constitution of India ought to have given reasons in the impugned&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">communication itself for rejecting petitioners’ request for financial assistance under Credit Guarantee&nbsp; Scheme,&nbsp; cannot be countenanced; the Respondent – Bank is not a statutory authority in the sense, the&nbsp; Election Commission&nbsp; of India was treated in Mohinder Singh Gill vs Chief Election Commissioner AIR 1978 SC 851&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the response of a Bank to the requirement of its borrower,&nbsp; made in the course of its commercial dealings cannot be approximated to an order of a statutory authority; the principles on which a Bank’s response to its&nbsp; customers&nbsp; have to be examined in a judicial&nbsp; review&nbsp; are&nbsp; much&nbsp; different from the ones that ordinarily apply to the review&nbsp; &nbsp;of administrative actions of the statutory functionaries; a decision is an authority for the proposition that is actually laid down in a given fact matrix, and not for all that which logically follows from what has been so laid down,&nbsp; said&nbsp; Lord Halsbury more than a century ago in QUINN vs. LEATHAM, 1901 A.C. 495; therefore the ratio in MOHINDER SINGH GILL is not readily invokable in the case at hands.</b></p><p><b>(d) Apparently, the transactions between a banker and the borrower have the overtones of contractual relationship; it is so even if the lender bank happens to be&nbsp; an instrumentality of ‘State’ under Article 12 of the Constitution of India.</b></p><p><b>(f) The Writ Courts neither have the means nor the knowledge to re-evaluate the “prudential decisions” of the Banks that are made in the course of commercial transactions; after all, the scope of judicial review of ‘Bankers Decisions’ is too restrictive, as observed by a Division Bench of this Court in MANNE GURUPRASAD vs. M/S.PAVAMAN ISPAT PVT. LTD., Writ Appeal No.100103/2021 (GM-RES), disposed&nbsp; off&nbsp; on&nbsp; 13.07.2021</b></p><p><b>(i) A little less than a century ago, the Bombay Provincial Banking Enquiry Committee (1929-30) had famously observed “Banking is my brains and other people’s money”; banking has traditionally been treated not just as a business but as a&nbsp; profession&nbsp; in&nbsp; as&nbsp; much&nbsp; as the banking business is vested with public interest; banks deal in other peoples’ money; funds are parked with the banks by broad segments of&nbsp; the&nbsp; public&nbsp; and&nbsp; this&nbsp; establishes a public trust which compels the banker to act&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">with a greater care than individuals engaged in commerce&nbsp; &nbsp;&amp; industry; if prudence and the promotion of public confidence have been basic ingredients of good banking&nbsp; then surely an extra measure of those indispensable ingredients is called for; ordinarily vigilant customers do closely scrutinize their banks’&nbsp; financial&nbsp; condition,&nbsp; and some uneasy money could decide&nbsp; to seek haven elsewhere&nbsp; if signs of weakness should manifest; Mr.Robert C.Holland, an American Economist and Member, Board of Governor of the Federal Reserve System (1973) had given a slogan to the bankers “HUSBAND YOUR BANKING RESOURCES”; this becomes pronouncedly relevant nowadays when about two&nbsp; dozen&nbsp; public&nbsp; sector&nbsp; banks&nbsp; have been closed down or merged with other banks, unscrupulous lending being one of the main causes.</b></p><p><b>In the above circumstances, this writ petition being devoid of merits, fails; however, this judgment shall not come in the way of Bank reconsidering its decision if the petitioners come forward with a viable proposal.</b></p>', '5eae9b704e487e0b21a5cdccd090d548.jpg', 'b52ffc6e24dadb7ab24b8299066d344c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-11', 1, '', '', '2021-10-12 00:36:28', '2021-10-12 00:36:28'),
(1077, 'Ub4Mezf8XONNqYv6Oyr1It0O6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Section 138. Summoning directors of company can not be faulted with when complaint makes specific averments against directors and their role in issuance of cheque. Supreme Court.  ', '<p><b>Ashutosh Ashok Parasrampuriya and another vs M/s. Gharrkul Industries Pvt Ltd. and others. <br>Criminal Appeal 1206 of 2021 decided on 8 October 2021<br>Justice Ajay Rastogi and Justice Abhay S Oka<br></b></p><p><b>Judgment Link <a href=\"https://main.sci.gov.in/supremecourt/2014/29305/29305_2014_44_1501_30703_Judgement_08-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2014/29305/29305_2014_44_1501_30703_Judgement_08-Oct-2021.pdf </a></b></p><p><b>24. The issue for determination before us is whether the role of the appellants in the capacity of the Director of the defaulter company makes   them   vicariously   liable   for   the   activities   of   the   defaulter Company as defined under Section 141 of the NI Act?   In that perception,   whether   the   appellant   had   committed   the   offence chargeable under Section 138 of the NI Act? </b></p><p><b>25. We are concerned in this case with Directors who are not signatories to the cheques.   So far as Directors who are not the signatories to the cheques or who are not Managing Directors or Joint   Managing   Directors   are   concerned,   it   is   clear   from   the conclusions drawn in the afore­stated judgment that it is necessary to aver in the complaint filed under Section 138 read with Section 141 of the NI Act that at the relevant time when the offence was committed, the Directors were in charge of and were responsible for the conduct of the business of the company.  </b></p><p><b>26. This averment assumes importance because it is the basic and essential averment which persuades the Magistrate to issue process against the Director.  </b></p><p><b>27. In the case on hand, reading the complaint as a whole, it is clear that the allegations in the complaint are that at the time at which the cheques were issued by the Company and dishonoured by the Bank, the appellants were the Directors of the Company and were   responsible   for   its   business   and   all   the   appellants   were involved in the business of the Company and were responsible for all the affairs of the Company.  It may not be proper to split while reading   the   complaint   so   as   to   come   to   a   conclusion   that   the allegations as a whole are not sufficient to fulfil the requirement of Section 141 of the NI Act.  The complaint specifically refers to the point of time when the cheques were issued, their presentment, dishonour and failure to pay in spite of notice of dishonour. In the given circumstances, we have no hesitation in overruling   the argument made by the learned counsel for the appellants. </b></p><p><b>29. The submission of learned counsel for the appellants that they are the non­executive Directors in the light of the documentary evidence placed on record by Form No. 32 issued by the Registrar of Companies, both the appellants are shown to be the Directors of the Company, still open for the appellants to justify during course of the trial</b></p><p><br></p>', '0f18d3f93a12d74bfd43b6b2237c864c.jpeg', 'fd2b5b997c9d2b7451677f0f16dfda9e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-12', 1, '', '', '2021-10-12 13:50:18', '2021-10-12 13:52:48'),
(1078, 'iT5m9j68jRmHaOOs7x0oz3W7h', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Prevention of Corruption Act. Accused public servant has no right to be afforded preliminary enquiry before filing of an FIR. Supreme Court. ', '<div><b>Central Bureau of Investigation (CB) and anr vs <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Thommandru Hannah Vijayalakshmi</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> and another <br></span>Criminal Appeal 1045 of 2021 decided on 8 October 2021<br>Justice <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Dr Dhananjaya Y Chandrachud, Justice Vikram Nath and Justice B V Nagarathna</span></b></div><div><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">D.1 Precedents of this Court</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></div><div><b>12 Before proceeding with our analysis of the issue, it is important to understand </b></div><div><b>what previous judgements of this Court have stated on the issue of whether CBI is </b></div><div><b>required to conduct a Preliminary Enquiry before the registration of an FIR, </b></div><div><b>especially in cases of alleged corruption against public servants.</b></div><div><b><br></b></div><div><b>13 The first of these is a judgment of a two Judge Bench in P Sirajuddin (supra),</b></div><div><b>in which it was observed that before a public servant is charged with acts of </b></div><div><b>dishonesty amounting to serious misdemeanor, some suitable preliminary enquiry </b></div><div><b>must be conducted in order to obviate incalculable harm to the reputation of that </b></div><div><b>person. </b></div><div><b><br></b></div><div><b>14 The above decision was followed by another two Judge Bench in Nirmal </b></div><div><b>Singh Kahlon (supra), where it was observed that in accordance with the CBI Manual, the CBI may only be held to have established a prima facie case upon the </b></div><div><b>completion of a Preliminary Enquiry.</b></div><div><b><br></b></div><div><b>15 The most authoritative pronouncement of law emerges from the decision of a </b></div><div><b>Constitution Bench in Lalita Kumari (supra). The issue before the Court was </b></div><div><b>whether “a police officer is bound to register a first information report (FIR) upon </b></div><div><b>receiving any information relating to commission of a cognizable offence under </b></div><div><b>Section 154 of the Code of Criminal Procedure 1973…or the police officer has the </b></div><div><b>power to conduct a ‘preliminary inquiry’ in order to test the veracity of such </b></div><div><b>information before registering the same”. Answering this question on behalf of the </b></div><div><b>Bench, Chief Justice P Sathasivam held that under Section 154 of the Code of </b></div><div><b>Criminal Procedure 197355, a police officer need not conduct a preliminary enquiry </b></div><div><b>and must register an FIR when the information received discloses the commission of </b></div><div><b>a cognizable offence.</b></div><div><b>However, the Court was also cognizant of the possible misuse of the powers under</b></div><div><b>criminal law resulting in the registration of frivolous FIRs. Hence, it formulated</b></div><div><b>“exceptions” to the general rule that an FIR must be registered immediately upon the </b></div><div><b>receipt of information disclosing the commission of a cognizable offence. </b></div><div><b>The Constitution Bench thus held that a Preliminary Enquiry is not mandatory when </b></div><div><b>the information received discloses the commission of a cognizable offence. Even </b></div><div><b>when it is conducted, the scope of a Preliminary Enquiry is not to ascertain the </b></div><div><b>veracity of the information, but only whether it reveals the commission of a </b></div><div><b>cognizable offence. The need for a Preliminary Enquiry will depend on the facts and </b></div><div><b>circumstances of each case. As an illustration, “corruption cases” fall in that</b></div><div><b>category of cases where a Preliminary Enquiry “may be made”. The use of the </b></div><div><b>expression “may be made” goes to emphasize that holding a preliminary enquiry is </b></div><div><b>not mandatory. Dwelling on the CBI Manual, the Constitution Bench held that: (i) it is </b></div><div><b>not a statute enacted by the legislature; and (ii) it is a compendium of administrative </b></div><div><b>orders for the internal guidance of the CBI.</b></div><div><b><br></b></div><div><b>16 The judgment in Lalita Kumari (supra) was analyzed by a three Judge Bench </b></div><div><b>of this Court in Yashwant Sinha (supra) where the Court refused to grant the relief </b></div><div><b>of registration of an FIR based on information submitted by the appellant-informant. </b></div><div><b>In his concurring opinion, Justice K M Joseph described that a barrier to granting the </b></div><div><b>relief of registration of an FIR against a public figure would be the observations of this Court in Lalita Kumari (supra) noting that a Preliminary Enquiry may be </b></div><div><b>desirable before doing so. </b></div><div><b><br></b></div><div><b>17 The decision of a two Judge Bench in Managipet (supra) thereafter has noted</b></div><div><b>that while the decision in Lalita Kumari (supra) held that a Preliminary Enquiry was </b></div><div><b>desirable in cases of alleged corruption, that does not vest a right in the accused to </b></div><div><b>demand a Preliminary Enquiry. Whether a Preliminary Enquiry is required or not will </b></div><div><b>depends on the facts and circumstances of each case, and it cannot be said to be </b></div><div><b>mandatory requirement without which a case cannot be registered against the </b></div><div><b>accused in corruption cases.</b></div><div><b><br></b></div><div><b>18 In Charansingh (supra), the two Judge bench was confronted with a </b></div><div><b>challenge to a decision to hold a Preliminary Enquiry. The court adverted to the ACB </b></div><div><b>Manual in Maharashtra and held that a statement provided by an individual in an </b></div><div><b>“open inquiry” in the nature of a Preliminary Enquiry would not be confessional in </b></div><div><b>nature and hence, the individual cannot refuse to appear in such an inquiry on that </b></div><div><b>basis.</b></div><div><b><br></b></div><div><b>19 Hence, all these decisions do not mandate that a Preliminary Enquiry must be </b></div><div><b>conducted before the registration of an FIR in corruption cases. An FIR will not stand </b></div><div><b>vitiated because a Preliminary Enquiry has not been conducted. The decision in </b></div><div><b>Managipet (supra) dealt specifically with a case of Disproportionate Assets. In that </b></div><div><b>context, the judgment holds that where relevant information regarding prima facie </b></div><div><b>allegations disclosing a cognizable offence is available, the officer recording the FIR </b></div><div><b>can proceed against the accused on the basis of the information without conducting </b></div><div><b>a Preliminary Enquiry.</b></div><div><b><br></b></div><div><b>20 This conclusion is also supported by the judgment of another Constitution </b></div><div><b>Bench in K. Veeraswami (supra). The judgment was in context of Section 5(1)(e) of </b></div><div><b>the old Prevention of Corruption Act 1947, which is similar to Section 13(1)(e) of the </b></div><div><b>PC Act. It was argued that: (i) a public servant must be afforded an opportunity to </b></div><div><b>explain the alleged Disproportionate Assets before an Investigating Officer; (ii) this </b></div><div><b>must then be included and explained by the Investigating Officer while filing the </b></div><div><b>charge sheet; and (iii) the failure to do so would render the charge sheet invalid. </b></div><div><b>Rejecting this submission, the Constitution Bench held that doing so would elevate </b></div><div><b>the Investigating Officer to the role of an enquiry officer or a Judge and that their role </b></div><div><b>was limited only to collect material in order to ascertain whether the alleged offence </b></div><div><b>has been committed by the public servant.</b></div><div><b>Therefore, since an accused public servant does not have a right to be afforded a </b></div><div><b>chance to explain the alleged Disproportionate Assets to the Investigating Officer </b></div><div><b>before the filing of a charge sheet, a similar right cannot be granted to the accused </b></div><div><b>before the filing of an FIR by making a Preliminary Enquiry mandatory.</b></div><div><b><br></b></div><div><b>29 The precedents of this Court and the provisions of the CBI Manual make it </b></div><div><b>abundantly clear that a Preliminary Enquiry is not mandatory in all cases which </b></div><div><b>involve allegations of corruption. The decision of the Constitution Bench in Lalita </b></div><div><b>Kumari (supra) holds that if the information received discloses the commission of a </b></div><div><b>cognizable offence at the outset, no Preliminary Enquiry would be required. It also clarified that the scope of a Preliminary Enquiry is not to check the veracity of the </b></div><div><b>information received, but only to scrutinize whether it discloses the commission of a </b></div><div><b>cognizable offence.</b></div><div><b><br></b></div><div><b>32 In view of the above discussion, we hold that since the institution of a </b></div><div><b>Preliminary Enquiry in cases of corruption is not made mandatory before the </b></div><div><b>registration of an FIR under the CrPC, PC Act or even the CBI Manual, for this Court </b></div><div><b>to issue a direction to that affect will be tantamount to stepping into the legislative </b></div><div><b>domain. Hence, we hold that in case the information received by the CBI, through a </b></div><div><b>complaint or a “source information” under Chapter 8, discloses the commission of a </b></div><div><b>cognizable offence, it can directly register a Regular Case instead of conducting a </b></div><div><b>Preliminary Enquiry, where the officer is satisfied that the information discloses the </b></div><div><b>commission of a cognizable offence.</b></div><div><br></div>', 'b9595df20efca2ae0b665274c6a00350.jpg', '95648f4acb286616c8083cdceb535e08.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-12', 1, '', '', '2021-10-12 15:25:31', '2021-10-12 15:29:18'),
(1079, 'EZ0FLEqZ6ZUhwUTkr4GWFyrtW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Single Judge of the Telengana High Court donned the role a Chartered Accountant\'\'. Supreme Court while restoring criminal prosecution against Andra minister Adimulapu Suresh.', '<p><font color=\"#222222\" face=\"mainFontOP\"><b>Central Bureau of Investigation (CB) and anr vs Thommandru Hannah Vijayalakshmi and another&nbsp;<br></b></font><b style=\"color: rgb(34, 34, 34); font-family: mainFontOP; font-size: 1rem;\">Criminal Appeal 1045 of 2021 decided on 8 October 2021<br></b><font color=\"#222222\" face=\"mainFontOP\" style=\"font-size: 1rem;\"><b>Justice&nbsp;</b></font><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"color: rgb(34, 34, 34); font-family: mainFontOP !important; line-height: 1.9 !important;\"><span style=\"font-size: 1rem; font-family: var(--bs-font-sans-serif); line-height: 1.9 !important;\">Dr Dhananjaya Y Chandrachud, Justice Vikram Nath and Justice B V Nagarathna&nbsp;</span></span></b></p><p><b>40 From the above, it becomes evident that the Single Judge of the Telangana \r\nHigh Court has acted completely beyond the settled parameters which govern the \r\npower to quash an FIR. The Single Judge has donned the role of a Chartered \r\nAccountant. The Single Judge has completely ignored that the Court was not at the \r\nstage of trial or considering an appeal against a verdict in a trial. The Single Judge \r\nhas enquired into the material adduced by the respondents, compared it with the \r\ninformation provided by the CBI in the FIR and their counter-affidavit, and then \r\npronounced a verdict on the merits of each individual allegation raised by the \r\nrespondents largely relying upon the documents filed by them (by considering them \r\nto be ‘known sources of income’ within the meaning of Section 13(1)(e) of the PC \r\nAct). This exercised has been justified on account of the appellant not having \r\nconducted a Preliminary Enquiry and hence, not having addressed the respondents’&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">objections relying upon the documents adduced by them. The reasons provided by \r\nthe Single Judge for entering into the merits of the dispute while quashing the FIR \r\nare specious, especially so considering our finding that the CBI need not hold a \r\nPreliminary Enquiry mandatorily. While exercising its jurisdiction under Article 226 of \r\nthe Constitution to adjudicate on a petition seeking the quashing of an FIR, the High \r\nCourt should have only considered whether the contents of the FIR – as they stand \r\nand on their face – prima facie make out a cognizable offence. However, it is evident \r\nthat in a judgment spanning a hundred and seven pages (of the paper-book in this \r\nappeal) the Single Judge has conducted a mini-trial, overlooking binding principles \r\nwhich govern a plea for quashing an FIR.</span></b></p><p><b>41 The judgment of a two Judge Bench of this Court in Gunmala Sales (P) Ltd.\r\nv. Anu Mehta61 makes it abundantly clear that the High Court does not conduct a \r\nmini-trial or a roving inquiry while exercising its powers under Section 482 of the \r\nCrPC.&nbsp;This principle also applies squarely to the exercise of powers by a High Court under \r\nArticle 226 of the Constitution while considering a writ petition for quashing an FIR. \r\nFurther, in numerous judgments of this Court it has been held that a court cannot \r\nconduct a mini-trial at the stage of framing of charges62. Hence, doing so at the \r\nstage of considering a petition for quashing an FIR under Section 482 of the CrPC or \r\nArticle 226 of the Constitution is obviously also impermissible. Therefore, we \r\ndisapprove of the reasoning provided by the Telangana High Court in its impugned \r\njudgment dated 11 February 2020 for quashing the FIR&nbsp;</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></p>', 'b614aa8f3fc1cae21322f836b75db18a.JPG', 'd7c61b9db66881e98b58fced723ed74e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-12', 1, '', '', '2021-10-12 15:44:51', '2021-10-12 15:44:51'),
(1080, 'gYZpz2rkEk9WrcjOuQIwN5Pz6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Workman cannot approach civil court basing his claim under the Industrial Disputes Act.  Decree in such a suit is a legal nullity. Supreme Court. ', '<p><b>Milkhi Ram vs Himachal Pradesh State Electricity Board<br>Civil Appeal 1346 of 2010 decided on 8 October 2021<br>Justice R. Subhash Reddy and Justice Hrishikesh Roy.<br></b></p><p><b>2. The challenge here is to the judgment dated 6.11.2008\r\nof the High Court of Himachal Pradesh whereunder the&nbsp;defendant’s Civil Revision No. 16/2006 was allowed with the\r\nobservation that the civil court lacked jurisdiction to\r\nentertain the civil suit based on the Industrial Disputes\r\nAct, 1947 and therefore, the\r\njudgment and decree in favour of the plaintiff are a\r\nnullity. The Court also opined that a plea on absence of\r\njurisdiction can be raised even at the stage of execution of\r\nproceedings.<br></b></p><p><b>13. The above contentions of the parties indicate that the\r\nonly issue to be considered here is whether the suit before\r\nthe civil court at the instance of the terminated employee,\r\nwas maintainable. The civil courts may have the limited\r\njurisdiction in service matters, but jurisdiction may not be\r\navailable to Court to adjudicate on orders passed by\r\ndisciplinary authority. The authorities specified under the\r\nID Act including the appropriate government and the\r\nindustrial courts perform various functions and the ID Act\r\nprovides for a wider definition of “termination of service”,\r\nthe condition precedent of termination of service. The\r\nconsequence of infringing those, are also provided in the ID\r\nAct. When a litigant opts for common law remedy, he may\r\nchoose either the civil court or the industrial forum.</b></p><p><b>14. In the present matter, the appellant has clearly\r\nfounded his claim in the suit, on the provisions of the ID\r\nAct and the employer therefore is entitled to raise a\r\njurisdictional objection to the proceedings before the civil\r\ncourt. The courts below including the executing court\r\nnegated the jurisdictional objection. The High Court in\r\nRevision, however has overturned the lower court’s order and\r\ndeclared that the decree in favour of the plaintiff is hit\r\nby the principle of coram non judice and therefore, the same\r\nis a nullity.<br></b></p><p><b>16. As can be seen from the material on record, the\r\nchallenge to the termination was founded on the provisions\r\nof the ID Act. Although jurisdictional objection was raised\r\nand a specific issue was framed at the instance of the\r\nemployer, the issue was answered against the defendant. This\r\nCourt is unable to accept the view propounded by the courts\r\nbelow and is of the considered opinion that the civil court\r\nlacks jurisdiction to entertain a suit structured on the\r\nprovisions of the ID Act. The decree favouring the\r\nplaintiff is a legal nullity and the finding of the High\r\nCourt to this extent is upheld.&nbsp;</b><br></p>', 'fa9cc2d4268d95c87f5c5c1c486ad40d.JPG', '2300e3c81506b38d4310de41b6c708cc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-12', 1, '', '', '2021-10-12 20:12:57', '2021-10-12 20:12:57'),
(1081, 'TA7CGplEyBTs6KCaAzWG6QUf4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Micro, Small and Medium Enterprises Development Act, 2006. Pre-deposit of 75% of award amount while preferring application appeal for setting aside award is mandatory. Supreme Court. ', '<p><b>Gujrat State Disaster Management Authority vs M/s. Aska Equipments Limited<br>Civil Appeal 6252 of 2021 decided on 8 October 2021<br>Justice M.R. Shah and Justice A.S. Bopanna</b><br></p><p><b>9. We have heard the learned counsel for the respective parties at\r\nlength.\r\nThe short question posed for the consideration of this Court is,\r\nwhether in an appeal/application filed under Section 34 of the Arbitration\r\n&amp; Conciliation Act, 1996 read with Section 19 of the MSME Act, 2006,\r\nthe appellate court would have any discretion to deviate from deposit of\r\n75% of the awarded amount as a pre-deposit?\r\n</b></p><p><b>9.1 Section 19 of the MSME Act, 2006 reads as under:\r\n</b></p><p><b><i>“19. Application for setting aside decree, award or order – No application\r\nfor setting aside any decree, award or other order made either by the\r\nCouncil itself or by any institution or centre providing alternate dispute\r\nresolution services to which a reference is made by the Council, shall be\r\nentertained by any court unless the appellant (not being a supplier) has\r\ndeposited with it seventy-five per cent of the amount in terms of the\r\ndecree, award or, as the case may be, the other order in the manner\r\ndirected by such court:\r\nProvided that pending disposal of the application to set aside the decree,\r\naward or order, the court shall order that such percentage of the amount\r\ndeposited shall be paid to the supplier, as it considers reasonable under\r\nthe circumstances of the case, subject to such conditions as it deems\r\nnecessary to impose.”</i></b></p><p><b>9.2 On a plain/fair reading of Section 19 of the MSME Act, 2006,\r\nreproduced hereinabove, at the time/before entertaining the application\r\nfor setting aside the award made under Section 34 of the Arbitration &amp;\r\nConciliation Act, the applicant/appellant has to deposit 75% of the\r\namount in terms of the award as a pre-deposit. The requirement of\r\ndeposit of 75% of the amount in terms of the award as a pre-deposit is\r\nmandatory. However, at the same time, considering the hardship which\r\nmay be projected before the appellate court and if the appellate court is\r\nsatisfied that there shall be undue hardship caused to the\r\nappellant/applicant to deposit 75% of the awarded amount as a pre deposit at a time, the court may allow the pre-deposit to be made in\r\ninstalments.</b></p><p><b>11. In view of the above and considering the language used in Section\r\n19 of the MSME Act, 2006 and the object and purpose of providing\r\ndeposit of 75% of the awarded amount as a pre-deposit while preferring\r\nthe application/appeal for setting aside the award, it has to be held that\r\nthe requirement of deposit of 75% of the awarded amount as a pre deposit is mandatory. Therefore, as such, both the High Court as well as\r\nthe learned Additional District Judge (Commercial), Dehradun were\r\njustified in directing the appellant to deposit 75% of the awarded amount\r\nas a pre-deposit.&nbsp;<br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'd15bc103bbf1afb9c2d969ddb5e30282.jpg', '72d67095894008cf1ad68d44f4245937.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-12', 1, '', '', '2021-10-12 23:39:39', '2021-10-12 23:39:39'),
(1082, 'TqJQJVvD0xT6orsSeCcxo06b6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Towards quick justice - Karnataka High Court directs revenue authorities to accept uploaded copy of its order on High Court website without waiting for certified copy. ', '<p><b>Krishnegowda vs The State of Karnataka and others.&nbsp;<br>Writ Petition 15773 of 2021 decided on 2 September 2021.<br>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/411547/1/WP15773-21-02-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/411547/1/WP15773-21-02-09-2021.pdf</a></b></p><p><b>2. The petitioner is before this Court seeking for a mandamus directing respondent Nos.4 and 5 - Tahsildar and Assistant Director of Land Records to consider the representation at Annexure-A dated 07.06.2021 to conduct podi and durasthi of the land as also the subsequent representations dated 03.07.2021 at Annexures-B and B1.</b></p><p><b>3. Shri Srinivasa Gowda, learned Additional Government Advocate submits that if given a period of six months time, the necessary survey, podi and durasthi would be carried out.</b></p><p><b>4. His submission is placed on record. A mandamus is issued directing the respondent Nos.4 and 5 to carry out the necessary survey, podi and durasthi as regards the land belonging to the petitioner as sought for in Annexures-A, B and B1 within 6 months.</b></p><p><b>5. Respondent Nos.4 and 5 will act on a print out of the uploaded copy of this order on the website of this Court, if so furnished by the petitioner, without waiting for certified copy thereof. If respondent Nos.4 and 5 has any doubt about the order, respondent Nos.4 and&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5 may verify the contents of the order from the website of this Court and or from the learned Additional Government Advocate.</b></p><p><b>The writ petition is allowed.</b></p><p><br></p>', '858bd7305eb4592cbc702875f1f78b4e.jpeg', '7d0978fcef7cd3bb5f79a1123a6021df.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-12', 1, '', '', '2021-10-13 01:24:23', '2021-10-13 01:24:23'),
(1083, 'b1RnpdlnVW4GD5f9lzSLEieef', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A person claiming to be in lawful possession can NOT plead adverse possession. Plaint to be rejected since trial of suit based on such a plea amounts to abuse of process of court. Karnataka High Court. ', '<p><b>Thiruvanakarasu vs H. Lakshmi Bai and others.&nbsp;<br>Civil Revision Petition 116 of 2021 decided on 1 September 2021<br>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/411819/1/CRP116-21-01-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/411819/1/CRP116-21-01-09-2021.pdf</a></b></p><p><b>14. It is trite law that for the purpose of consideration of application under Order 7 Rule 11 of CPC it is only the averments made in the plaint which have to be considered and that the averments made in the plaint ought to be considered in its entirety and not piecemeal.&nbsp;</b></p><p><b>16. In order to lay a claim for adverse possession, the plaintiff would have to contend and prove that the possession of the plaintiffs is unlawful, the true owner though knowing about the unlawful possession of the plaintiffs did not take any steps against the plaintiffs and or did not exercise any ownership right with regard to the property.</b></p><p><b>18.The concept of adverse possession is not defined in any statute, it is a common law principle. The&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">period of time prescribed to assert right of adverse possession in terms of Article 65 of The Limitation Act being 12 years. Even the Limitation Act does not define the term adverse possession.</b></p><p><b>19. In order to prove and/or claim adverse possession 3 classic requirements are to co-exist at the same time namely nec-vi i.e. adequate in continuity, nec- clam i.e., adequate in publicity and nec-precario i.e., adverse to he owner by denying the title of the competitor or true owner to the knowledge to such person.</b></p><p><b>20. There has to be a visible notorious and peaceful possession of the property by the Plaintiff vis-a-vis the true owner and the knowledge of same being attributed to the owner, for this purpose the person claiming adverse possession would have to accept ownership right of the true owner and set up his or her own title.</b></p><p><b>21. There has to be animus possidendi to assert title.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The person who claims adverse possession has to show and establish:</b></p><p><b>21.1.on what date he came into possession,</b></p><p><b>21.2.what is the nature of possession and in what manner he or she came into possession;</b></p><p><b>21.3. whether the factum of possession was known to the owner of the property</b></p><p><b>21.4. whether possession was hostile to the owner of the property</b></p><p><b>21.5. How long the possession has continued, that the said possession has not been disturbed by the owner despite the owner being aware that the person in possession is claiming hostile possession.</b></p><p><b>22.<span style=\"white-space:pre\">	</span>Adverse possession is antithesis to title, in effect a premium is being given to a person who is not the owner of the property merely on the ground that such person is in hostile possession of the property i.e., essentially person is conferred title on committing the wrong of taking possession of the property and asserting title over in an illegal manner. Therefore there cannot be any equities pleaded, such person claiming adverse title would have to establish all aspects in a proper and required manner.</b></p><p><b>23...Thus in the very paragraph 3 of the plaint, it is&nbsp; clear that Lakshman Rao under whom the plaintiffs claim adverse possession was lawfully inducted into the property as an employee of late Venkataramanappa. Therefore, it cannot be said that the possession of Lakshman Rao and thereafter by the plaintiffs is unlawful.</b></p><p><b>25. In paragraph 5, it is further stated that plaintiffs continue to reside in the building as an employee of late Venkataramanappa, thereby, once again admitting the possession continued to be lawful.</b></p><p><b>33. As aforestated and noticed, the induction of the father of the plaintiffs was done in a lawful manner as an employee of Venkataramanappa who made payment of rental to B.V.Shamanna, s/o Venkataramanappa. He also entered into an agreement of sale with B.V.Shamanna to purchase the property and paid advance of Rs.100/-.</b></p><p><b>37. The manner in which the proceedings have been conducted, the pleadings filed and numerous litigations resorted to, leave no doubt in my mind that all these proceedings are gross abuse of process of Court. These kind of litigations are required to be nipped at bud by this Court by following the dicta laid down by the Hon’ble Apex Court in T.Arivandandam vs. T.V. Satyapal &amp; Another (AIR 1977 AIR 2421) case. These frivolous and vexatious suits also if permitted to continue and parties are forced to defend such&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">suits, it would cause untold harm and misery on the defendants.</b></p><p><b>38. It would be the duty of the Court to reject the plaint wherever it is found that by lodging the said plaint and filing of a suit, there is an abuse of process of Court which is being resorted to. The trial Court while dealing with the matter in its order has though extracted the contents of the plaint, it has not examined the same but has only rejected the application on a simple ground that there would be a trial required to be held to ascertain the truth in the matter. There would be no trial which required when there is a clear admission made in the plaint. If the plaint on the face of it i.e. exfacie would indicate that there is an abuse of process of Court and or reliefs cannot be granted even after trial, it would be the bounden duty of the Court to reject the plaint.</b></p><p><b>42. Considering that I have come to a finding that there is a gross abuse of process of Court, the plaintiffs in&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">O.S. No.3921/2010 would also be liable to make payment of costs quantified at Rs.5,000/- to the petitioner herein within a period of four weeks from today.</b></p><div><br></div>', 'f994c9c646fcbfbc66ef0ce2877ce4ee.jpeg', 'f55ba103e34ee478281a346b28fe895a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-13', 1, '', '', '2021-10-13 14:55:47', '2021-10-13 14:55:47'),
(1084, 'bT6v1W7X6nb3CWfpqiOOcU0Wn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Power of trial court to examine accused under Section 313. Karnataka High Court issues detailed guidelines.', '<p><span style=\"font-weight: bolder;\">Meenakshi and another vs State of Karnataka&nbsp;<br></span><b>Criminal Petition 2170 of 2021 decided on 21 September 2021<br>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/411592/1/CRLP2170-21-21-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/411592/1/CRLP2170-21-21-09-2021.pdf</a></b></p><p><b>The petitioners are accused No.1 and 2 in Sessions Case No.10/2018 on the file of II Addl. District and Sessions Judge, Mysuru, facing trial for the offences punishable under Sections 302 and 201 r/w Section 34 of IPC. They have invoked jurisdiction of this court under Section 482 Cr.P.C. for quashing the statements under Section 313 Cr.P.C. recorded by the Sessions Judge.</b></p><p><b>4. Section 313 of the Code embodies the fundamental principle of ‘Audi Alteram Partem’. Since this is the stage where the accused gets an opportunity to explain an inculpatory evidence against him, the questions must be framed in such a manner as he or she understands them. The questions must be simple and specific to the evidence against the accused. A long string of questions couched in complex sentences must be avoided. Several distinct matters should not be rolled up, every question must cover a distinct incriminatory evidence. While questioning the accused, not only the incriminatory oral evidence but also the documents and the material objects indicating adverse evidence should be brought to the notice of the accused. In this context, I find it&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">very apt to refer to a judgment of the Supreme Court in the case of TARA SINGH vs STATE [AIR 1951 SC 441</b></p><p><b>6. In the year 2009, amendment was brought to section 313 Cr.P.C. Probably with a view to saving the time of the trial court judges, they are permitted to take the assistance of the Public Prosecutors and the defence counsel in preparing the questions. Therefore, the trial court judges may direct the Public Prosecutors and the defence counsel to submit the questions to be put to the accused, and the questions prepared by them may be adopted after scrutiny and modification if required.</b></p><p><b>7. Sub-section (5) of section 313 of Cr.P.C inserted by Act 5 of 2009 enables the court to permit the accused to file written statement as sufficient compliance of the section. Therefore the trial court, may, depending upon facts and circumstances,&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">instead of recording the statement in question and answer form, permit the accused to file his written statement. If this procedure is resorted to, discretion must be exercised wisely.</b></p><p><b>8. From the above discussions, the following guidelines are given :-</b></p><p><b>(i) Only the incriminatory evidence must be picked out from oral and documentary evidence.</b></p><p><b>(ii) The questions must be framed in a simple language, as far as possible in short sentences.</b></p><p><b>(iii) The attention of each accused must be drawn to the evidence adverse or against him/her.</b></p><p><b>(iv) Sometimes, a witness may give evidence as regards the collective overt act of two or more accused and in that event a single question may be framed, but each accused must be&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">questioned individually, and their answers must be recorded separately.</b></p><p><b>(v) It is also possible that two or more witnesses may speak identically regarding the overt act of an accused. In that event, the substance&nbsp; of their evidence may be put in a single question.</b></p><p><b>(vi) The attention of the accused must be drawn to the marked documents and material objects if they are incriminatory.</b></p><p><b>(vii)<span style=\"white-space:pre\">	</span>The accused must be questioned regarding various types of mahazars or panchanamas only if they contain incriminatory evidence.</b></p><p><b>(viii) Accused need not be questioned in regard to evidence given by the formal witnesses, for example, an engineer who has drawn the sketch of scene of occurrence, a police constable submitting the FIR to the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Magistrate, a police constable carrying seized articles to FSL, a police officer who has only submitted the charge sheet without conducting investigation, etc., unless anything incriminatory is found in such evidence.</b></p><p><b>(ix) If there are two or more accused, it is not necessary to prepare as many sets of questionnaires as the number of accused are. It is enough to prepare a single questionnaire, but the question must be directed towards a particular accused individually or two or more accused collectively. When a question is framed pointing out collective overt act of&nbsp; two or more accused, the answer of each accused must be recorded separately one after another.</b></p><p><b>(x) By virtue of amendment brought to Cr.P.C, the trial court judges may take the assistance&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the Public Prosecutors and the defence counsel for framing the questions.</b></p><p><b>(xi)<span style=\"white-space:pre\">	</span>In case the Public Prosecutor or the defence counsel submits a set of questions, the trial court judges must scrutinize and adopt them with or without modification.</b></p><p><b>(xii)<span style=\"white-space:pre\">	</span>The court should record the answer or explanation given by the accused and should not insist upon the accused to give answer in one word, ‘false’ or ‘true’.</b></p><div><br></div>', '8f13330a1695b2c24e90a13d305f66df.jpg', '1179e7489f0574d47e91ac178cd7a4fc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-13', 1, '', '', '2021-10-14 02:06:47', '2021-10-14 02:06:47');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1085, 'ufKKITnAqLMhUFBkdsrobPLt3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court deprecates mechanical rubber-stamp adjournment in revenue cases. Directions issued to web-host daily and final orders in Revenue Court Cases Management System platform. ', '<p><b>R. Prathap Kumar Reddy vs The Assistant Commissioner and another <br>Writ Petition 6747 of 2021 decided on 20 September 2021<br>Judgment Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/411160/1/WP6747-21-20-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/411160/1/WP6747-21-20-09-2021.pdf</a></b></p><p><b>8.This is one more shocking case where there has been no sitting which has been held by the Tahsildar in spite of dates being notified in the </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">order sheet and the Tahsildar has signed the rubber stamp adjournment orders.</b></p><p><b>9. This Court is coming across several such matters where the Assistant Commissioner or the Deputy Commissioner have been adjourning the matters by affixing rubber stamps stating that they are busy with other administrative work. In the case  at hand, the adjournment orders are not even signed by the Assistant commissioner but have been signed on his behalf by the Tahsildar.</b></p><p><b>10. In this particular matter, from the year 2014 till 2018, there have been only two sittings between 16.02.2014 to 16.02.2018. Though the date and time have been fixed, the matter has been adjourned time and time again. The first sitting  was held on 21.10.2017, when the matter was adjourned to 06.10.2018. when the petitioners were not present on the second sitting date, which was held on 06.10.2018, the matter was posted for orders.</b></p><p><b>11. An administrative authority who discharges quasi- judicial functions has to give equal preference, if not more preference to quasi-judicial functions.  The administrative functions cannot over ride quasi- judicial functions. The quasi-judicial functions of an administrative authority is equally important if not more important than administrative work of such authority, more so when the rights of a common man are being decided in those proceedings having legal implications. A citizen is before such quasi- judicial authorities either on account of notices having been issued to him or on account of any relief that he is seeking before or from such quasi- judicial authorities.</b></p><p><b>12. Adjourning matters by passing perfunctory orders or by affixing pre-formatted rubber stamps and/or typing formatted adjournment orders is not permissible. When a date is fixed for hearing or proceedings in discharge of quasi-judicial functions, </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the authority is required to take up the same on that date and time.</b></p><p><b>13. Once a date is fixed for quasi-judicial functions/activities, the same cannot be adjourned without valid reasons. Any adjournment  would have to be only on the basis of exigent circumstances and not otherwise. Such  reasons and exigent circumstances have to be recorded in writing and signed by such authority which shows application of mind.</b></p><p><b>14. Though it is understandable that administrative activities will also have to be discharged, but in my considered opinion, it is required that the quasi- judicial functions are given more preference and prominence than the administrative work. Merely adjourning matter on 32 occasions by affixing rubber stamp stating that the concerned quasi- judicial authority is busy in administrative work is no adjournment at all and would amount to complete disregard of its quasi-judicial functions.</b></p><p><b>15. It would be required that all the proceedings including daily orders and judgments which are taking place before the quasi-judicial authorities are web-hosted on the website of the concerned quasi- judicial authorities like that done by this Court as also District Courts. All the orders are required to be uploaded on the website to enable the persons concerned to know of the orders which are passed.</b></p><p><b>17. Though the learned Additional Government Advocate submits that the Revenue Court Cases Management System (RCCMS) is available where details of the orders passed are web-hosted, the learned counsel for the Petitioner would submit that the same does not include the daily orders which </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">are passed by the concerned quasi-judicial authority, nor are the final orders uploaded in the said system.</b></p><p><b>18. Hence, the Chief Secretary, Government of Karnataka and the Principal Secretary, Revenue Department, Government of Karnataka are directed to implement a system for web-hosting of daily orders, daily proceedings as also final orders in RCCMS platform, which is to include the full text of the daily orders as also the final orders as and when passed.</b></p>', '7dba5d750d445d7bcc2ea7f5e33e6828.jpeg', 'fc4056cb193bbd4a692e4594414c7ec7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-14', 1, '', '', '2021-10-14 17:39:06', '2021-10-14 17:39:50'),
(1086, 'jzaTDzBmHWspVdMnNVgi8H8fC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act, 1988. Under a comprehensive insurance policy, owner of the insured vehicle can claim compensation on account of the damages caused to the vehicle. Karnataka High Court ', '<p><b>M/s. Reliance General Insurance Company vs Venugopal M.S.and another&nbsp;<br>Miscellaneous First Appeal 9389 of 2015 decided 24 August 2021<br>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/410509/1/MFA9389-15-24-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/410509/1/MFA9389-15-24-08-2021.pdf</a></b></p><p><b>1. Whether a vehicle owner who is insured can claim compensation on account of damage caused to the vehicle insured by him?</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10.1. The Motor Vehicles Act, 1988 has been introduced in order to provide for effective and speedy redressal of any claim arising out of motor vehicle accident. The claims could be made under Section 163 of the Act or 166 of the Act among other provisions. Section 163 of the Act deals only with bodily injury, whereas Section 166 of the Act deals with the injury to the body, death as also to the property.</b><br></p><p><b>10.2 Section 166 of the Act makes it clear that an application for compensation&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">could be made by a person who has sustained injury by a owner of the property or in case of death by the legal representatives of deceased or by an agent duly authorized by the person injured or authorized by legal representatives of the deceased.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10.3. The ambit of Section 166 of the Act is very wide in its purport and import. The Apex Court in the case of Syed Mehabood Vs. New India Assurance Company Ltd., reported in (2011) 11 SCC 625 has held that the Motor Vehicle Act is a beneficial legislation intended to place the claimant in the same position that he was before the accident and to compensate for the loss.</b><br></p><p><b>10.4. The Apex Court has categorically stated that the said Act has to be interpreted liberally so as to achieve maximum benefit. It is in this background that the claim in the present case would have to&nbsp; be considered.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10.6. In the present case, it is not in dispute that there was a accident and it is also&nbsp; not in dispute that the vehicle involved in the accident was covered by a comprehensive insurance policy issued by the appellant-Insurance Company. There is also no dispute as regards the damage which has been caused to the vehicle and the expenses incurred for the repair of the vehicle, due to the damage caused.</b><br></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10.7. The only contention in the present appeal is as regards the jurisdiction of the Tribunal to award compensation as regards the damage caused to the vehicle covered by the insurance policy, on the ground that it is only a third party who could claim such compensation damage to a property as detailed above.</b><br></p><p><b>In my considered opinion such a contention taken up by the appellant- Insurance Company is completely hyper technical and ought not to have been taken by the appellant-Insurance Company. When the appellant-Insurance&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Company at the time of issuance of the policy has received the premium amount, it was for the Insurance Company to have by itself made payment of the amounts incurred towards the repair of the vehicle when the invoice has been issued by a authorized service station.</b></p><p><b>14. In the present case the policy is not an act policy but a comprehensive policy. Therefore the claimant would not become a third party, in such&nbsp; a situation as held by the Division Bench of this Court.</b></p><p><b>15.<span style=\"white-space:pre\">	</span>In the present case the insured cannot be treated as a 3rd party. In view of the above, I answer&nbsp; point no.1 by holding that under a comprehensive insurance policy the vehicle owner of insured could claim compensation on account of the damages caused to the vehicle insured by him.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '86161b28eb72b16e0ffa0e419553798c.jpeg', '7117dc68745f124b797badb911086d04.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-14', 1, '', '', '2021-10-14 20:50:31', '2021-10-14 20:50:31'),
(1087, 'DoUO9qGNEqgMZDPoXkDz2eALq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Order 7 Rule 11(d). When a meaningful reading of the plaint discloses that suit is exfacie barred by limitation, powers could be exercised by the Court to reject the plaint. Karnataka High Court. ', '<p><b>M/s. Metropoli Overseas Limited vs H.S. Deekshit and others&nbsp;<br>Civil Revision Petition 307 of 2020 decided on 14 September 2021<br>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/410224/1/CRP307-20-14-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/410224/1/CRP307-20-14-09-2021.pdf</a></b></p><p><b>13. The points that would arise for determination by this Court are:</b></p><p><b>i) Whether a plaint can be rejected under Order 7 Rule 11(d) of CPC on the ground of the suit being exfacie barred by limitation or in all cases limitation would be a mixed question of law and fact requiring trial?</b></p><p><b>ii) Whether registration of a sale deed in respect of alleged joint family property would amount to constructive notice to all members of the joint family?</b></p><p><b>iii) Whether in a suit for partition and declaration that certain sale deeds are not binding would the main relief be a declaration or partition?</b></p><p><b>iv) Would the limitation period for such a suit be under Article 109 or 110 of the Limitation Act and when would the period for limitation starts running?</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15.1. Extensive arguments have been advanced by the counsels and several citations have been relied upon. It is trite law that generally limitation is a mixed question of both facts and law and that the Apex Court and this Court have in catena of cases held that limitation per se cannot be a ground to exercise powers under Order 7 Rule 11 of CPC.</b></p><p><b>15.2. Having said so, the Apex Court has also held in Hardesh Ores (P) Ltd\'s case (supra) that law within the meaning of clause (d) of Order&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7 Rule 11 of CPC must include law of&nbsp; limitation as well. The Apex Court in Balsaria Construction (P) Ltd case has held that since exfacie the plaint could not be said to be barred by time, trial was required, thereby implying that if it was exfacie evident that the suit was barred by limitation, powers under Order VII Rule 11 could be exercised.</b></p><p><b>15.3. The Apex Court in Sopan Sudhdeo Sable\'s case [supra] has held that the Court ought to have exercised powers under Order 7 Rule 11 of CPC if the Court is of the opinion that the suit is bogus or irresponsible litigation. The Apex Court in Raghwendra Sharan Singh\'s case [supra] has also held that if the Courts were to find that the suit is clearly barred by&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">law of limitation, the same could be rejected under Order 7 Rule 11(d) of CPC.</b></p><p><b>15.4. In view of the above, I answer Point No.1 by holding that when a meaningful reading of the plaint discloses that suit is exfacie barred by limitation powers could be exercised under order 7 Rule 11(d) of CPC by the Court concerned to reject the plaint.</b></p><p><b>15.5. It is only when there are serious disputed questions of fact that powers under Order 7 Rule 11(d) of CPC cannot be exercised for rejection of the plaint on the ground of the suit being barred by limitation.</b></p><p><b style=\"background-color: rgb(255, 255, 0);\"><i>NOTE: Decision on other questions (ii) to (iv) reported separately&nbsp;</i></b></p>', '036fdc25ddfaf41e7576eecf44b52b60.jpeg', 'a62487a8520fb92b695d7e02a9ecd741.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-14', 1, '', '', '2021-10-15 01:47:51', '2021-10-15 01:50:11'),
(2724, 'bwOUYiHYqq2Zc4wlmsFQFhc8s', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for possession based on title without seeking declaration of ownership is maintainable when the defendant does not assert the title to himself. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Narayana and others Vs Indira and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 442 of 2007 decided on 6 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sachin Shankar Magadum.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The plaintiffs instituted suit seeking relief of possession. The plaintiffs contended that one Narayana who is the husband of first plaintiff and father of second plaintiff received the suit property under registered settlement deed dated 14.6.1965, executed by one Ammu Hengsu who is none other than the mother of said Narayana. The plaintiffs have further contended that after the death of Narayana, the first plaintiff being his wife along with her son inherited the suit schedule property. The plaintiffs further specifically pleaded that suit schedule property is referred as item No.2 of schedule C in the settlement deed. Therefore, referring to this title document, the plaintiffs contended that the present suit is filed. The plaintiffs also specifically pleaded that an eviction petition was filed before HRC Court in HRC.No.35/2000 which came to be disposed of relegating the parties to seek appropriate relief before the competent civil Court. Pursuant to the order passed by the HRC Court, the plaintiffs seeking possession based on title have instituted the present suit.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>The defendant on receipt of summons tendered appearance and filed written statement and stoutly denied that plaintiffs are owners of the suit schedule property. The defendant claimed that he is in possession of the house along with the vacant land totally measuring 17 cents. While asserting possession, the defendant also seriously disputed plaintiffs’ title over the suit schedule property. The defendant claimed that though the present suit is filed seeking possession based on title, the plaintiffs title under settlement deed needs to be established before the competent Court and in absence of relief of declaration, the present suit for possession based on title is not maintainable. On these set of defence, sought for dismissal of the suit.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>This Court vide order dated 3.3.2008 has admitted the appeal to consider the following substantial questions of law : </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>“a) Whether the plaintiffs\' suit, in the absence of a claim for declaration of their right/title, but for the reliefs of possession and injunction only was maintainable in law, inasmuch as in the HRC case filed by the plaintiffs, the defendant\'s contention that there was no relationship of landlord and tenant between them, was upheld by the HRC Court, which stopped the further proceedings in the HRC Case, and directed the plaintiffs, as provided in Section 43 of the Karnataka Rent Act, 1999, to obtain a declaration of their right from a court of competent jurisdiction? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>b)<span style=\"white-space:pre\">	</span>Whether issue No. 1 relating to the claim of the plaintiffs to ownership of the property in question, and finding of the court in that behalf was sustainable in law, in the absence of claim for declaration of their right as directed by the HRC court under Section 43 of the Karnataka Rent Act, 1999?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> c)<span style=\"white-space:pre\">	</span>Whether the judgments and decrees of the courts below directing the defendant-appellant to deliver possession of the house to the plaintiffs straightaway instead of requiring them to produce the decision of the trial Court before the HRC court and praying for reopening of the pending HRC case which had been stopped under Section 43 of the Karnataka Rent Act, 1999, and taking further proceedings in the HRC case are according to law? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>d)<span style=\"white-space:pre\">	</span>Whether point No.1 formulated by the Lower Appellate Court, casting the burden of negative proof on the defendant-appellant is sustainable in law. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>e)<span style=\"white-space:pre\">	</span>Whether the plaintiffs\' suit was barred by limitation? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>f)<span style=\"white-space:pre\">	</span>Whether the suit was not properly valued and the court fee paid was not sufficient as pleaded and canvassed by and for defendant- appellant? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>g)<span style=\"white-space:pre\">	</span>Whether the decision of the lower appellate court is vitiated by non- reference to and non- consideration of the oral evidence produced in the case? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>h)<span style=\"white-space:pre\">	</span>Whether on the facts and in the circumstances of the case, the judgment of the lower appellate court calls for interference in the above appeal?”<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>The short question that needs consideration at the hands of this Court is as to whether the defendant can resist the present suit filed for possession based on title. On reading the defence set up by defendant, this Court would find that defendant is not asserting title in himself. All that is stated in the written statement is that he is in a settled position and his possession dates back to 40 years. Now in a suit for possession based on title, the question as to whether the plaintiffs have to seek declaration depends upon the counter title documents, if any, by defendant. In the present case on hand, except bald allegations in the written statement disputing plaintiffs’ title, the defendant has not placed on record any title document which would create a cloud over plaintiffs’ title and would compel plaintiffs to seek relief of declaration as held by the Apex Court in the case of Anathula Sudhakar .vs. P. Buchi Reddy (Dead) by Lrs. and others1. The clinching evidence let in by the plaintiffs has virtually gone unchallenged. A feeble attempt is made by defendant to protract handing over of possession. It is in this background, both the Courts having found that plaintiffs predecessor Narayana having acquired valid right and title under registered settlement deed have rightly proceeded to decree the suit.   This Court is unable to understand as to how the defendant who is a stranger to the plaintiffs’ family can question the settlement deed executed by the second plaintiff’s grand mother namely Ammu Hengsu vide Ex.P1. The settlement deed is totally an internal matter of the plaintiffs’ family. The defendant who is a tress passer has no locus to question the settlement deed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>During trial, the defendant has also set up a plea of adverse possession though there is no foundation in the written statement in that regard. Therefore, both the Courts referring to the cogent and clinching evidence let in by the plaintiffs have rightly proceeded to hold that plaintiffs by placing on record the title documents and other supporting documents have succeeded in discharging their initial burden and have proved their title. Therefore, in absence of rebuttal title documents let in by the defendant, both the Courts were justified in decreeing the suit filed by the plaintiffs seeking possession which is obviously based on title documents. Both the Courts were also justified in not giving any credence to the defence set up by the defendant. As rightly pointed out by the learned counsel for the plaintiffs, defendant has not chosen to mount the witness box and it is his wife who is examined in this case. Even the conduct of the defendant has to be taken into consideration. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>In that view of the matter, the substantial questions of law (a) and (b) are answered in the affirmative. Substantial question of law (c) does not survive for consideration. In the light of the defence set up by the defendant in HRC.No.35/2000 substantial question of law (d) does not survive for consideration. Insofar as Substantial question of law (e) is concerned, the present suit is filed by the plaintiffs seeking possession which is based on title. Therefore, the provisions of Limitation Act have no application to the present case on hand as defendant has not set up the plea of adverse possession. If Article 65 has no application, then the suit for possession based on title is not barred by limitation. Accordingly, the substantial question of law (e) is answered in the negative. Further, substantial questions of law (f) to (h) are also answered in the negative.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>14.<span style=\"white-space:pre\">	</span>For the foregoing reasons, the second appeal being devoid of merits stands dismissed. No order as to costs.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f0dc2de1a493d8d8655890bd940c7060.JPG', '307cb52b8723a313daa021d9400f0cb0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-25', 1, '', '', '2023-02-23 14:04:34', '2023-02-25 03:21:57'),
(3045, 'mvYVR5UfeY1VNeySCa05X9stT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Buildings used for the purpose of running educational institution and/or incidental activity are exempted from payment of property tax under the Karnataka Municipalities Act even without making application seeking exemption. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The City Municipal Council Vs Akbarpatel.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 87922 of 2012 decided on 23 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The petitioner - City Municipal Council is aggrieved by the order passed by the II Additional Sessions Judge, Bijapur in Crl.Revision Petition No.139/2012. The petitioner, the erstwhile City Municipal Council is now upgraded to a Municipal Corporation. At the relevant point of time, it was a City Municipal Council operating under the provisions of the Karnataka Municipalities Act, 1964 (for short, ‘the Act of 1964’).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 3.<span style=\"white-space: pre;\">	</span>The petitioner had issued a demand notice on 11.01.2012 under Section 142(1)(v) of the Act of 1964 calling upon the respondent to make payment of arrears of municipal tax of Rs.38,79,674/- for the period commencing from 01.04.2002 to 31.03.2012. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>It is aggrieved by the same that the respondent had preferred an appeal in Crl.Appeal No.134/2012 under Section 150 of the Act of 1964 before JMFC-I, Bijapur. The said Appeal came to be dismissed on the ground that there was a delay in filing the appeal and that the respondent had not obtained exemption from the CMC for the aforesaid period. Aggrieved by the same, the respondent preferred a Criminal Revision Petition No.139/2012, which came to be allowed by the II Additional Sessions Judge, Bijapur, holding that in terms of Section 94(1-A)(i) of the Act of 1964, the respondent who is an educational institution is exempted from payment of property taxes. It is aggrieved by the same, the City Municipal Council is before this Court seeking for the aforesaid reliefs.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">8.<span style=\"white-space: pre;\">	</span>A short question that would arise for consideration in the present matter is whether under Section 94(1-A)(i) of the Act of 1964, is an application required to be made by an educational institution for exemption from making payment of property tax on a year to year basis?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>A perusal of the said provision does not indicate the requirement of any certificate as contended by Sri.Amresh Roja, learned counsel for the petitioner insofar as the exemption claimed is under Section 94(1-A)(i) of the Act of 1964. It is only as regards the exemption contained under Section 94(1-A)(a, c and d) of the Act of 1964 that certain conditions are to be satisfied and insofar as the exemption under Section 94(1-A)(j) of the Act of 1964, a certificate is required to be issued by the Government or any officer duly authorized by the Government that a building or vacant lands belonging to the Central Government or any State Government is used for the purposes of the State Government and not used for any residential or commercial purposes. Section 94 (1) or Section 94(1-A) of the Act of 1964 does not require any certificate to be issued by any authority. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>Insofar as the decision in Society of Jesus’s1 case supra referred to by Sri.Amresh S.Roja, learned counsel for the petitioner, the said decision is rendered under the provisions of the Karnataka Municipal Corporation Act, 1976 (for short, ‘the Act of 1976’) and is not one which is rendered under the provisions of Karnataka Municipalities Act, 1964. It is therefore required for this Court to take into consideration the requirement of Section 94(1) and Section 94(1-A) of the Act of 1964, which stands on a different footing than Section 108 and Section 110(e) of the Act of 1976, which was the subject matter of Society of Jesus1 case supra. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>Be that as it may, in Para 10 of the said decision, the Co-ordinate Bench of this Court has also held that merely because an application is not filed by an assessee in advance seeking exemption, the same would not be a ground to deprive the assessee of such exemption if and so were the eligibility of the assessee. Thus, the decision in Society of Jesus1 case supra per se does not even though it relates to the applicability of the Karnataka Municipal Corporation Act require an assessee to have obtained an exemption prior to the assessment or filing of the returns. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space: pre;\">	</span>In the present case, there is no dispute as regards the respondent running an educational institution and therefore, there cannot be any dispute as regards the respondent coming within the purview of Section 94(1-A)(i) of the Act of 1964. Such being the case, there being no requirement for seeking for an exemption certificate, I am of the considered opinion that this exemption is absolute and apply to all buildings which are used for the purpose of running educational institution and/or incidental activity as held by this Court in W.P.No.103010/2013 in the case of the Management of NWKRTC vs. Dilerkhan S/o Munawarkhan Jahagirdar dated 15.01.2021. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>In view of the above discussion, the exemption to an educational institution as regards payment of property tax being provided under Section 94(1-A)(i) of the Act of 1964, the Revisional Court has rightly applied the same and revised the order passed by the JMFC-I, Bijapur exempting the payment of property tax by the respondent. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>There being no error in the said order, I do not find any reason to interfere with the same. The Writ Petition stands dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd02bfd53f8b36a0f10a2b8683ecd6b67.JPG', '984f0da33f204762b2325b82ecc923ed.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-08', 1, '', '', '2023-06-07 12:42:08', '2023-06-08 06:58:01'),
(1090, 'PtuxVNZKVLSc4l6wfI4X9ntlL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Order 8 Rule 9. Court can permit rejoinder by plaintiff even after filing of written statement so long as it is not a departure from the previous pleading in the plaint. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Arogyanagar Co-operative Housing Society Ltd and another vs Fakirgouda s/o Basangouda Patil and others.&nbsp;<br></span><b>Writ Petition (GM-CPC) 62019 of 2012 decided on 17 August 2021<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405649/1/WP62019-12-17-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405649/1/WP62019-12-17-08-2021.pdf</a></b></p><p><b>This writ petition is filed challenging the order dated 29.2.2012 passed by the Principal Civil Judge and Principal JMFC, Dharwad on IA No.2 filed under Order 8 Rule 9 read with Section&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">151 of CPC granting leave to the plaintiffs to submit the rejoinder to the written statement filed by defendants No.1 and 2 in OS No.491/2011.</b></p><p><b>4. Plaintiffs filed I.A.No.2 under Order 8 Rule 9 read with Section 151 of CPC alleging that the filing of rejoinder is necessary in order to explain the defence of defendants, if otherwise, the untenable contentions taken by defendants will&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">remain unchallenged. Defendants filed objections to the said application and sought for dismissal of the application.</b></p><p><b>10. Before adjudicating the controversy in question, it is relevant to reproduce the provisions under (i) Order 6 Rule 7 of CPC and (ii) Order 8 Rule 9 of CPC and, which read thus:</b></p><p><b><i>Order 6 Rule 7:“Departure.- No pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.</i></b></p><p><b>Order 8 Rule 9: Subsequent pleadings.- No pleading subsequent to the written statement of a defendant other than by way of defence to a set-of or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.”</b></p><p><b>11.<span style=\"white-space:pre\">	</span>Perusal of these provisions, clearly disclose that a Court can permit filing of subsequent pleadings as per Order 8 Rule 9 of CPC, but the leave is necessary but in the case of&nbsp; setoff or counterclaim, no leave is necessary. If the subsequent pleading is in the nature of rejoinder to the written statement but not a departure from the previous pleading, subsequent pleading or rejoinder can be permitted and the Court in its discretion can grant leave to file such pleading. But the subsequent pleading must essentially be one of reply in its character and it should not raise a new ground and it should not be inconsistent with the original pleading.</b></p><p><b>12.<span style=\"white-space:pre\">	</span>A coordinate Bench of this Court in the case of Krishnamurthy –vs- Hanumakka and others (supra), after referring to the various decisions of this Court has held that granting of leave to the plaintiff to file additional pleadings by way of reply/reapplication to the contentions in the written statement would prejudice none. Conversely, denial of leave is likely to prejudice the plaintiffs although the non-denial by him of the contentions in the written statement would not amount to their admission at all as held by the Apex Court vide AIR 2009 SC 951.&nbsp;</b></p><p><b>14.<span style=\"white-space:pre\">	</span>In the instant case, the rejoinder filed by the plaintiffs in the nature of reply to the written statement and not for raising any new ground and also not to cover omissions and laches .Trial Court after considering the same has permitted the plaintiffs to file rejoinder and the same is in consonance with&nbsp; the provision contained in&nbsp; Order 6 Rule 7 and&nbsp; Order 8 Rule 9&nbsp; of CPC and does not warrant any interference. Accordingly, I pass the following</b></p><p><br></p>', '889a71d5da9165a45ba060c2880d56d9.jpg', '99c9fdad667e85af104a855243905d92.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-15', 1, '', '', '2021-10-16 00:19:13', '2021-10-16 00:19:13'),
(1091, 'QKHQY8Y45w2hsjzFSEP28j4gM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Undue influence, unless specifically pleaded in the plaint, cannot be assumed by the court based on evidence during trial. Karnataka High Court reiterates. ', '<p><b>Umavathi and another vs Ananda Poojary and others.&nbsp;<br>Regular First Appeal 1830 of 2014 decided on 27 August 2021<br>Justice Alok Aradhe and Justice Hemant Chandangoudar<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/411530/1/RFA1830-14-27-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/411530/1/RFA1830-14-27-08-2021.pdf</a></b><b><br></b></p><p><b>16. It is settled law that no amount of evidence can be looked into, upon a plea which was never put forward in the pleading. A question which did not arise from pleadings and which was not the subject matter of an issue, cannot be decided by the court . In the instant case, the trial court traveled beyond the pleadings and held that the released deed was obtained by taking undue advantage which is not permissible in law.</b></p><p><b>17. Admittedly the released deed executed in favor of 1st defendant at Ex.D-8 is a registered document . Therefore it carries a presumption of genuineness under section 114 of the Evidence Act and the burden to prove&nbsp; that it is not genuine lies on the plaintiffs who have alleged that it was obtained by undue advantage . In the instant case, plaintiffs have not pleaded that the document was obtained by undue advantage and not adduced any evidence. The plaintiffs have to prove their case to the satisfaction of the court and cannot succeed on the weakness of the case of the defendants. The plaintiffs have not adduced any evidence to substantiate their claim and in the absence of the same, the trial court has erroneously declared the release deed executed in favor of 1st defendant as null and void. Even otherwise the plaintiffs have not pleaded or adduced any evidence to prove that the 1st defendant was in a fiduciary relationship with Smt. Ramani and the 1st Defendant No.1 was in a dominating position to induce Smt.Ramani to execute the sale deed.</b></p><p><b><br></b></p><p><br></p>', '76479b0d7905af12f6181a03ee789a10.JPG', '6cba03e7ea678e5ac1da25f572e6a4f0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-17', 1, '', '', '2021-10-17 13:52:24', '2021-10-17 13:52:24'),
(1092, '44Z4saFp1l7gXu9aGb0sEBh0K', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Section 200. Karnataka High Court lays down guidelines to be followed by Magistrates while taking cognizance. ', '<p><span style=\"font-weight: bolder;\">Sri Sathya Sai Central Trust vs State of Karnataka and another&nbsp;<br></span><b>Criminal Petition 1422 of 2021 decided on 22 July 2021<br>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/398340/1/CRLP1422-21-22-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/398340/1/CRLP1422-21-22-07-2021.pdf</a></b></p><p><b>55.<span style=\"white-space:pre\">	</span>Based on the above discussion, the cognizance taking procedure to be followed may be set out as follows :-</b></p><p><b>(i) After presentation of the complaint, the Magistrate must read the complaint and if he finds on the face of it, commission of an offence or offences is not disclosed, he can reject or dismiss the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">complaint. But the Magistrate must be slow in rejecting the complaint just on reading it because if the complaint is not properly articulated, rejection of complaint may result in causing injustice to the complainant. It is also possible that intelligent drafting may give an impression that an offence has taken place, which may not be true sometimes. Therefore it is better to examine the complainant and the witnesses if necessary.</b></p><p><b>(ii) If after reading the complaint and examining the witness (if they are present and their examination is necessary) under section 200 Cr.P.C. the Magistrate arrives at conclusion that there are sufficient grounds to proceed&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">further, he shall take cognizance of the offence and issue process to the accused.</b></p><p><b>(iii) Even after following the procedure set out in section 200, if the Magistrate is not convinced about existence of sufficient materials to take cognizance, he may resort to hold an inquiry himself or direct investigation as contemplated under section 202.</b></p><p><b>(iv) If the Magistrate does not prima facie find materials as to constitution of any offence after examining the complainant and witnesses (if any), he can dismiss the complaint in accordance with section 203.</b></p><p><b>(v) Resorting to procedure contemplated under section 202 is not always&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">mandatory, it may be resorted to only in the circumstances stated in section 202. That means, cognizance may be taken&nbsp; or the complaint may be rejected depending upon the situation even after the stage of section 200.</b></p><p><b>(vi) It is not necessary that a Magistrate must endorse ”cognizance taken” in the order sheet, but what is required is application of mind and it must be depicted in a brief order. Decision as to issuing process to the accused itself amounts to cognizance being taken.</b></p><p><b>(vii)<span style=\"white-space:pre\">	</span>Whenever investigating police officer files ‘B’ report, and the complainant wants to contest the ‘B’ report, the Magistrate has to follow the same procedure set out above.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '52b3c8bb495383a884de499393f4f99e.jpg', '4b44bda2caf99df4636061af54d49bd6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-17', 1, '', '', '2021-10-17 16:09:18', '2021-10-17 16:09:18');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1093, 'v7Pa2mpJs6qZQ5R0lCXbOIVex', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Classic case where the political parties and the police tried to bury the truth\'\'. Karnataka High Court upholds CBI investigation against former Minister Vinay Kulkarni and others in a murder case.    ', '<p><b>Basavaraj Shivappa Muttagi vs State of Karnataka and another. <br>Writ Petition 51012 of 2019 and connected matters decided on 16 October 2021<br>Justice B. Veerappa and Justice N.S. Sanjay Gowda<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413053/1/WP51012-19-16-10-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413053/1/WP51012-19-16-10-2021.pdf</a></b></p><p><b>2.This is a classic case where the political parties and the Police authorities have tried to misuse their power to bury the truth in respect of an unnatural death of one Yogishgouda goudar.</b></p><p><b>3. These writ petitions are filed by the accused persons stated supra under Articles 226 and 227 of the Constitution of India r/w Section 482 of the Code of Criminal Procedure, praying for a </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">writ in the nature of certiorari to quash the  Government  Order dated 6.9.2019 made in HD 48 PCB 2016 as per Annexure-A, according sanction to the Central Bureau of Investigation (‘CBI’ for short), under Section - 6 of Delhi Special Police Establishment Act, 1946, to conduct further investigation with respect to Crime No.135/2016, registered with the Dharwad Sub-Urban Police  Station, Dharwad for the offence punishable under Section 302 of IPC and writ in the nature of certiorari to quash the FIR dated 24.6.2019 </b></p><p><b>74. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that would arise for our consideration in these writ petitions are:</b></p><p><b>i) Whether the petitioners - Accused Nos.1,5,15,16 and 21, in these writ petitions have made out a case to quash the impugned Government Order  bearing  No.HD 48 PCB 2016, Bengaluru, dated 6.9.2019, by which sanction has been accorded to the Central Bureau of Investigation, under Section (6) of Delhi Special Police Establishment Act, 1946 for further investigation of Crime No.135/2016 under Section 302 of IPC</b></p><p><b>ii) Whether the Investigating Officer of the 2nd respondent/CBI is empowered to proceed with the investigation, in view of the interim order passed by the Hon’ble Supreme Court dated 20.2.2020 in SLP (Criminal) No.1348/2020 (from 20.2.2000 to 11.8.2021) staying the operation of the order passed by the learned Single Judge of this Court dated 21.11.2019 made in W.P. No.51012/2019, in the peculiar facts and circumstances of the present case ?</b></p><p><b>87. Considering the entire material on record and taking  into consideration the opinion expressed by the learned Advocate General of Government of Karnataka and considering the provisions of Sections 156 and 173(8) of Criminal Procedure Code,  Government was satisfied that the further investigation of Crime No.135/2016 of IPC of Dharwad Sub-Urban Police Station, Dharwad was needed to be handed over to CBI, in order to meet the ends of justice. Accordingly, by the impugned Government Order dated 6.9.2019, sanction has been accorded to the  CBI, under Section 6  of Delhi Special Police Establishment Act, 1946 for further investigation of Crime No.135/2016 of Dharwad Sub-Urban Police Station, Dharwad.   The same was issued by order and in the name of the Governor of Karnataka after applying its mind and taking into </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">consideration the peculiar facts and circumstances of the present case. Accordingly, the FIR came to be registered on 24.9.2019 as per Annexure-B. In these writ petitions, the  petitioners  have  sought for writ in the nature of certiorari for quashing the Government Order dated 6.9.2019 and the FIR dated 24.9.2019.</b></p><p><b>94.It is high time for the judiciary to protect the fundamental rights of the citizens of this country to ensure justice must not only be done but must be seen to be done and majesty of rule of law is </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to be upheld and it is to be ensured that guilty are punished in accordance with law notwithstanding their status and authority  which they might  have enjoyed. This Court being  the  protector of </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the civil liberties of the citizens, has not only power and jurisdiction but also an obligation to protect the fundamental rights guaranteed by part III in general and Article 21 of the Constitution in particular, zealously and vigilantly.</b></p><p><b>95. Keeping in mind the aforesaid principles, it is relevant to consider at this stage whether the State Government is justified in entrusting the matter to the CBI in pursuance of the impugned Government Order dated 6.9.2019, in view of the representation made by the kith and kin of the deceased. A careful perusal of the records which culminated into passing of the impugned Government Order dated 6.9.2019 clearly indicates that the State Government was aware of the fact that the complainant had earlier approached this Court requesting to hand over the case to the CBI and this  Court has dismissed the said writ petition. After considering the entire material on record, the State Government was of the opinion that the matter has to be entrusted to the CBI for further investigation, which is an independent authority and there is no bar for the State Government to exercise its sovereign power to entrust the matter to the CBI </b></p><p><b>100.<span style=\"white-space:pre\">	</span>The material on record depicts that the Public Prosecutor, who was in-charge of the crime was changed during  trial. The material also revealed that during the course of further investigation by CBI, it has come to light that some of the Police officials including previous Investigating Officer are also found to be involved in the case, were found to have taken gratification  to scuttle the investigation and they have been arrayed as Accused Nos.19 and 20.</b></p><p><b>111.<span style=\"white-space:pre\">	</span>Admittedly, in the present case the State Government by the impugned Government Order has granted its consent and accordingly, the Central Government also ordered for the extension of the provisions of the DSPE Act by issuing a notification.  Therefore, the order  passed by the State Government entrusting  the matter to CBI for further investigation, is in accordance  with law.</b></p><p><b>123. In the present case, the allegations made in the first information  report,  prima  facie  constitute  cognizable  offence and </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">make out a case against the accused persons. After investigation, the<span style=\"white-space:pre\">	</span>Investigating<span style=\"white-space:pre\">	</span>Officer of the<span style=\"white-space:pre\">	</span>2nd<span style=\"white-space:pre\">	</span>respondent/CBI filed </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">supplementary<span style=\"white-space:pre\">	</span>charge<span style=\"white-space:pre\">	</span>sheets<span style=\"white-space:pre\">	</span>and<span style=\"white-space:pre\">	</span>the<span style=\"white-space:pre\">	</span>competent<span style=\"white-space:pre\">	</span>Court<span style=\"white-space:pre\">	</span>took cognizance of the supplementary charge sheets and the matter is </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">committed to the court of Sessions. The accused persons have not made out an express legal bar engrafted in any of the provisions of </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the  Code  to  the institution and continuance  of  the proceedings  in Crime No.135/2016.<span style=\"white-space:pre\">	</span>The accused persons have also not made out that  a  criminal  proceeding  is  manifestly  attended  with  mala fide </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and/or the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">spite him due to private and personal grudge.</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">. It is not in dispute that separation of powers is a part of the basic structure of the Constitution, the “ordinary” executive power of the State Government under Section 6 and ‘extraordinary judicial power’ of the constitutional courts are  mutually exclusive and are not interdependent and there is no particular form to give consent under Section 6 of Delhi Special Police Establishment Act </b></p><p><b>129. The parameters for exercise of both the distinct powers of Government and Courts are naturally different and it is always possible and permissible, that even after the constitutional court declines to exercise its extraordinary judicial power holding that the case does not involve circumstances which are rare or exceptional, the State Government can exercise its ordinary executive powers under section 6 of the Delhi  Special Police Establishment Act, 1946 in granting consent and the Central Government can, thereafter exercise its power by accepting the investigation entrusted to it by the  State  Government.  </b></p><p><b>138. It is well settled that the accused/petitioners ares not entitled to say what agency investigates him. The investigation by CBI is permissible even after filing of charge sheet by the local  police </b></p><p><b>144.<span style=\"white-space:pre\">	</span>In the light of the law laid down by the Hon’ble Supreme Court in the aforesaid judgments, the contention of  learned counsel for the petitioners that the impugned Government Order issued by the State Government for re-investigation, cannot be accepted and infact the impugned Government Order has been issued for ‘further investigation’ only.</b></p><p><b>146.<span style=\"white-space:pre\">	</span>It is relevant to quote the words from the case of JENNISON -vs- BAKER reported in 1972(1) All.ER.997, wherein it is held that:</b></p><p><b>“the law should not be seen to sit by limply, while those who defy it go free, and </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">those who seek its protection lose hope”</b></p><p><b>147.<span style=\"white-space:pre\">	</span>It is well settled that the trial should not be victim centric, forgetting the valuable rights available to the accused, but, when the  relevant material  becomes  available  in  accordance with </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">law before the trial Court, the accused cannot be heard to say that the  same cannot be  looked  into for a fair trial.<span style=\"white-space:pre\">	</span>The administering </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">criminal justice is a two-end process, where guarding the ensured </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">rights of the accused under the Constitution is as imperative<span style=\"white-space:pre\">	</span>as ensuring justice to the victim. Therefore, it becomes clear that a </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">fair trial envisages production of all relevant material before  the  trial Court for discovering the truth of   the matter.  It is not as if the </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioners/accused persons would be put to any prejudice if two supplementary  charge  sheets  and  the  additional  documents   are </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">examined  by  the  Sessions  Court  in  the  present  case  and  the </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">witnesses relevant<span style=\"white-space:pre\">	</span>to such documents are<span style=\"white-space:pre\">	</span>permitted to be </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">examined.</b></p><p><b>164.<span style=\"white-space:pre\">	</span>It is well settled that, if a prima facie case is made out, disclosing the ingredients of the offences as alleged against the accused, the Court cannot quash the criminal proceedings as admittedly in the present case, when the trial is half way charge sheets are filed by impleading the new accused persons, cognizance of the offences already taken by the competent Court and now the matter is being posted for further trial. </b></p><p><b>Writ Petitions are dismissed</b></p>', '844fa263340065246cd38764431e1740.JPG', '8548684e85912522c6706529d4ecadb0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-18', 1, '', '', '2021-10-18 18:37:37', '2021-10-18 18:38:54'),
(1094, 'czHt4VWq7pRlYQmtrcUdh0BTC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Increasing trend of dispossessing persons in lawful possession through collusive and fraudulent compromise decrees. Karnataka High Court issues guidelines to be followed by the Trial Courts. ', '<p><b>Leelavathi vs C.S.Lalitha and another <br>Civil Revision Petition 159 of 2021 decided on 25 August 2021<br>Judgment Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413138/1/CRP159-21-25-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413138/1/CRP159-21-25-08-2021.pdf</a></b></p><p><b>1. This revision has been preferred against an order passed by the Small Causes Court allowing  an  application filed under Order XXI Rule 99 CPC by the objector/1st respondent herein thereby ordering restoration of possession of the 1st respondent/objector  in Ex.1315/2015 (arising out of an order of eviction passed in S.C.No.314/2015). By the said order, costs of</b></p><p><b>2. By the same order, a compromise decree passed in the eviction suit filed by the petitioner based on which  the execution had been filed by the petitioner herein, has also been set aside.</b></p><p><b>3. Ultimately, a positive direction has been issued to direct the decree holder/petitioner herein to restore physical possession of the execution petition schedule property to the objector/1st respondent herein within one month.</b></p><p><b>17. The petitioner, being starkly aware of the finding regarding possession which was glaring at her, still, nevertheless, proceeded to initiate a collusive  proceeding. This entire modus operandi adopted by the petitioner depicts that the eviction proceeding was designed to abuse the process of the Court to dispossess the person in lawful possession.</b></p><p><b>19. The argument of the learned counsel that the petitioner should be afforded an opportunity is an argument, which if accepted, will only aid in further protraction of the proceedings and thereby take advantage of illegality. I am therefore of the view that this argument does not deserve acceptance.</b></p><p><b>20. This brazen conduct of the petitioner, which unfortunately appears to be followed by many unscrupulous litigants in recent times, deserves to be deprecated in the strongest possible terms.</b></p><p><b>21. I am, therefore, of the view that the Trial  Court  was correct in allowing the application under Order XXI Rule 99 CPC and directing restoration of possession to  the 1st respondent herein.</b></p><p><b>23. Before parting with this case, it would be necessary to take note of the fact that this Court is coming across far too many cases in which unscrupulous litigants are abusing the process of the court  in  dispossessing persons who are in lawful possession by obtaining collusive compromise decrees against persons who have no semblance of a right over the property in question.</b></p><p><b>24. In many a case, the defendant is an unknown person or even a fictitious person and as a result when the fraud played on the Court is discovered later, appropriate proceedings against the offenders cannot be taken effectively. In short, it has become rather easy for unscrupulous litigants to take advantage of  the  laxity and lack of sufficient safeguards in the process of the Courts.</b></p><p><b>25. It has therefore become the need of the hour for  the Trial Courts to be cautious in the matter of accepting compromise petitions and also passing of ex parte orders of eviction.</b></p><p><b>26. In this regard, the following guidelines are being issued to the Trial Courts as an illustrative guide to them to ensure the process of the Courts is not abused.</b></p><p><b>a. The Trial Courts shall ensure that proper and acceptable proof of identity of the parties to proceedings as mandated by the Government for various purposes (such as Aadhar Card, Driving Licence, Passport Copy, Election Identity card, etc.,) are obtained as a matter of rule.</b></p><p><b>b. The Trial Court shall ensure, especially in eviction matters in which compromise  petitions are filed, to satisfy itself about the actual possession of the persons  in possession.</b></p><p><b>c. The Trial Court shall call upon the parties to produce documents such as an Electricity Bill, Telephone Bill, Pass Book extracts, or such other documents which establish the actual residence of the tenants.</b></p><p><b>d. It would be open for the Trial Court to pass such orders as it may deem necessary  such  as the appointment of a Commissioner, etc., to satisfy itself about the possession of the parties before accepting the compromise petition.</b></p><p><b>27. The Registrar General is directed to issue a Circular in this regard to all the Courts in the State.</b></p><p><b>28. The Registrar General is also directed to place the matter before the Rulemaking Committee of this Court to examine the matter of evolving a process for the Bailiffs to execute eviction orders using modern technological tools such as video recording, GPS mapping to ensure </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that no illegality is allowed to be perpetuated  through  the process of the Court.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '912a0700daafcd075f584e94de8ce208.jpg', '9209a5aa1af7211206e530a69d1d013f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-18', 1, '', '', '2021-10-19 00:46:19', '2021-10-19 00:47:01'),
(1095, 'vCSuVCdhiHgUmcJie6N452Kvo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court imposes cost of Rs. 50,000 on litigant who dispossessed person in lawful possession through collusive and fraudulent compromise decree. Upholds order of restoration of possession. ', '<p><b>Leelavathi vs C.S. Lalitha and another&nbsp;<br>Civil Revision Petition 159 of 2021 decided on 25 August 2021<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgement Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413138/1/CRP159-21-25-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413138/1/CRP159-21-25-08-2021.pdf</a></b></p><p><b>1. This revision has been preferred against an order passed by the Small Causes Court allowing&nbsp; an&nbsp; application filed under Order XXI Rule 99 CPC by the objector/1st respondent herein thereby ordering restoration of possession of the 1st respondent/objector&nbsp; in Ex.1315/2015 (arising out of an order of eviction passed in S.C.No.314/2015). By the said order, costs of</b></p><p><b>2. By the same order, a compromise decree passed in the eviction suit filed by the petitioner based on which&nbsp; the execution had been filed by the petitioner herein, has also been set aside.</b></p><p><b>3. Ultimately, a positive direction has been issued to direct the decree holder/petitioner herein to restore physical possession of the execution petition schedule property to the objector/1st respondent herein within one month.</b></p><p><b>17. The petitioner, being starkly aware of the finding regarding possession which was glaring at her, still, nevertheless, proceeded to initiate a collusive&nbsp; proceeding. This entire modus operandi adopted by the petitioner depicts that the eviction proceeding was designed to abuse the process of the Court to dispossess the person in lawful possession.</b></p><p><b>19. The argument of the learned counsel that the petitioner should be afforded an opportunity is an argument, which if accepted, will only aid in further protraction of the proceedings and thereby take advantage of illegality. I am therefore of the view that this argument does not deserve acceptance.</b></p><p><b>20. This brazen conduct of the petitioner, which unfortunately appears to be followed by many unscrupulous litigants in recent times, deserves to be deprecated in the strongest possible terms.</b></p><p><b>21. I am, therefore, of the view that the Trial&nbsp; Court&nbsp; was correct in allowing the application under Order XXI Rule 99 CPC and directing restoration of possession to&nbsp; the 1st respondent herein.</b></p><p><b>22. This revision is, therefore, dismissed.&nbsp; Having&nbsp; regard to manner in which the entire proceedings have been conducted with the sole purpose of abusing the process of the Court, in my view, this would be a fit case to impose costs of Rs.50,000/- to be paid by the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner to the 1st respondent within a period of four weeks from today. If the said sum is not paid, the 1st respondent herein is at liberty to initiate appropriate execution proceedings against the petitioner.</b></p><p><b>23. Before parting with this case, it would be necessary to take note of the fact that this Court is coming across far too many cases in which unscrupulous litigants are abusing the process of the court&nbsp; in&nbsp; dispossessing persons who are in lawful possession by obtaining collusive compromise decrees against persons who have no semblance of a right over the property in question.</b></p><p><b>24. In many a case, the defendant is an unknown person or even a fictitious person and as a result when the fraud played on the Court is discovered later, appropriate proceedings against the offenders cannot be taken effectively. In short, it has become rather easy for unscrupulous litigants to take advantage of&nbsp; the&nbsp; laxity and lack of sufficient safeguards in the process of the Courts.</b></p><p><b>25. It has therefore become the need of the hour for&nbsp; the Trial Courts to be cautious in the matter of accepting compromise petitions and also passing of ex parte orders of eviction.</b></p><p><b>26. In this regard, the following guidelines are being issued to the Trial Courts as an illustrative guide to them to ensure the process of the Courts is not abused.</b></p><p><b>a. The Trial Courts shall ensure that proper and acceptable proof of identity of the parties to proceedings as mandated by the Government for various purposes (such as Aadhar Card, Driving Licence, Passport Copy, Election Identity card, etc.,) are obtained as a matter of rule.</b></p><p><b>b. The Trial Court shall ensure, especially in eviction matters in which compromise&nbsp; petitions are filed, to satisfy itself about the actual possession of the persons&nbsp; in possession.</b></p><p><b>c. The Trial Court shall call upon the parties to produce documents such as an Electricity Bill, Telephone Bill, Pass Book extracts, or such other documents which establish the actual residence of the tenants.</b></p><p><b>d. It would be open for the Trial Court to pass such orders as it may deem necessary&nbsp; such&nbsp; as the appointment of a Commissioner, etc.,&nbsp; to satisfy itself about the possession of the parties before accepting the compromise petition.</b></p><p><b>27. The Registrar General is directed to issue a Circular in this regard to all the Courts in the State.</b></p><p><b>28. The Registrar General is also directed to place the matter before the Rulemaking Committee of this Court to examine the matter of evolving a process for the Bailiffs to execute eviction orders using modern technological tools such as video recording, GPS mapping to ensure&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that no illegality is allowed to be perpetuated&nbsp; through&nbsp; the process of the Court.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '1b1669d5f6229d210f30fd084ae6adab.jpg', '9561b3ee19ce62e7d6887d1568a9cba4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-18', 1, '', '', '2021-10-19 01:01:48', '2021-10-19 01:01:48'),
(1096, 'ZrAJ93VDXt4mj9mKYOTSZlS6P', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'In-service employee appointed to new post in new department on direct basis submitting technical resignation to his post. He cannot be repatriated to original post if new employer discharges him from service. Karnataka High Court. ', '<p><b>Dr. Dipti Deodhare vs National Technical Research Organisation and others.&nbsp;<br>Writ Petition 10867 of 2021 decided on 8 October 2021<br>Justice B. Veerappa and Justice N.S.Sanjay Gowda<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413205/1/WP10867-21-08-10-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413205/1/WP10867-21-08-10-2021.pdf</a></b><b><br></b></p><p><b>4. The petitioner, who was holding the post of Scientist ‘G’ in Level-14 of the pay matrix&nbsp; at CAIR, DRDO, applied&nbsp; for the post of Scientist ‘H’ through her parent department i.e., DRDO. After following the due process and consequent to the approval of Appointments Committee of the Cabinet (ACC), the petitioner was issued an Offer of Appointment&nbsp; on 11.05.2018.</b></p><p><b>5. The offer of appointment was as a Scientist ‘H’&nbsp; in Level 15 of the Pay Matrix as per the 7th Central Pay Commission (CPC) and was to head the&nbsp; Artificial Intelligence (AI) and High Performance Computing (HPC) missions at NTRO. The offer of appointment clearly stated that she was being offered the said appointment on direct recruitment basis with effect from the date of her assumption of charge of the post and till the date of her superannuation. The offer of appointment also indicated that the appointment would be purely on temporary basis&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and until further orders and that she would be on&nbsp; probation for a period of one year from the date of appointment which period could be extended at the discretion of the competent authority.</b></p><p><b>6. The petitioner accepted the offer of appointment and the technical resignation of the petitioner to the post of Scientist ‘G’ in DRDO was accepted and she reported for duty as Scientist ‘H’ in NTRO on 25.06.2018.</b></p><p><b>8. The petitioner being aggrieved of the said order, approached the Central Administrative Tribunal&nbsp; challenging the said order. She sought for reinstatement with all consequential benefits including protection of seniority and treating the period from 13.02.2019 till date as being in service. She also challenged the order dated 13.11.2019 by which she was called&nbsp; for to report to duty&nbsp; by 16.12.2019, failing which dismissal proceedings would be initiated against her. The petitioner&nbsp; ultimately sought for a direction to respondent No.1 to accept her application for Voluntary Retirement Service and for a direction to be relieved with all pensionary and retirement benefits.</b></p><p><b>9. The Tribunal on consideration of the matter&nbsp; concluded that the impugned order was an order of discharge simpliciter and did not cast any stigma on the petitioner. The Tribunal also concluded that there was no substance in her plea that her discharge was a premature one and there was absolutely no justification to conclude that her performance was unsatisfactory.&nbsp; The&nbsp; Tribunal also concluded that there was no infirmity in the portion of the order which instructed the petitioner to report back to her duty in her parent department, as her lien was still maintained in her parent organization.</b></p><p><b>17. This is a rather strange case in which the employee states that she does no have any quarrel if her employer were to discharge her from service simpliciter and it is her only contention that having appointed on a direct recruitment basis, her employer could not have, in&nbsp; the guise of a refusing to declare her probationary period as having been successfully completed, should not be permitted to revert her back to her parent department and thereby to a lower cadre.</b></p><p><b>19. In order to join NTRO, as required under the Rules, she was required to resign from her post in DRDO, which&nbsp; &nbsp;is termed as a technical resignation, which was also accepted by her parent department. The effect of a&nbsp; technical resignation is that though the petitioner was no longer an employee of the DRDO, nevertheless, she would be entitled for the benefit of past services that she had rendered in DRDO which would have to be taken into account and added to the services that she was to render&nbsp; in NTRO. The moment the technical resignation was accepted for all purposes, the petitioner’s relation as an employee of the DRDO stood extinguished.</b></p><p><b>21.....The discharge of the petitioner in NTRO does not automatically revive the relationship of employer and employee between the petitioner and DRDO. It has to be kept in mind that a technical resignation was given and accepted only to&nbsp; ensure that the past service rendered in the parent department is not lost by the petitioner.</b></p><p><b>27. As held above, once the employee is appointed on direct recruitment basis to an higher post in a new department or organisation, the new employer cannot repatriate her to a lower post that she originally held in some other department. The concept of reversion in&nbsp; the case of direct recruitment would not arise.&nbsp; The argument&nbsp; in this regard, therefore, fails.</b></p><p><b>28. It has to be noted here that the repatriation of an employee would arise only if an employee is lent from one department to another. In such cases, an employee continues to be an employee of the parent department and her services are merely lent to another department. The employer or the authority to&nbsp; whose services the employee&nbsp; is lent, are both, at liberty to repatriate the employee to her parent department. This concept of repatriation cannot therefore be applied to a case where an employee has resigned in order to be appointed to another post in&nbsp; another department. Since, the very premise of Annexure ‘A6’ is one of premature repatriation, the same is obviously misconceived, and cannot be sustained as it stands.</b></p><p><b>29. We therefore hold that the order passed by the Tribunal cannot be sustained and the same is accordingly modified as sought for by the petitioner. The order dated 12.02.2019 shall be read as an order of discharge simpliciter. In other words, under the order dated 12.02.2019, the services of the petitioner shall stand discharged and she shall be entitled to all consequential benefits including the benefit of past service that she had rendered in DRDO for computing her terminal benefits.</b></p><p><br></p>', '01f56b823a9d341917f6b3aba270e7e8.jpg', '37f04dea0c96f4ccf18fe8e3f094e2a4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-19', 1, '', '', '2021-10-19 16:23:07', '2021-10-19 16:23:07'),
(1097, 'RyQiAk99LWBdTrsyYv5MwMguk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'In-service employee tendering technical resignation on being appointed to new post in new department on direct basis. His past service shall be counted for consequential benefits when discharged from new post. Karnataka High Court. ', '<p><b>Dr. Dipti Deodhare vs National Technical Research Organisation and others.&nbsp;</b></p><p><b>Writ Petition 10867 of 2021 decided on 8 October 2021<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice B. Veerappa and Justice N.S.Sanjay Gowda<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413205/1/WP10867-21-08-10-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413205/1/WP10867-21-08-10-2021.pdf</a></b></p><p><b>4. The petitioner, who was holding the post of Scientist ‘G’ in Level-14 of the pay matrix&nbsp; at CAIR, DRDO, applied&nbsp; for the post of Scientist ‘H’ through her parent department i.e., DRDO. After following the due process and consequent to the approval of Appointments Committee of the Cabinet (ACC), the petitioner was issued an Offer of Appointment&nbsp; on 11.05.2018.</b></p><p><b>5. The offer of appointment was as a Scientist ‘H’&nbsp; in Level 15 of the Pay Matrix as per the 7th Central Pay Commission (CPC) and was to head the&nbsp; Artificial Intelligence (AI) and High Performance Computing (HPC) missions at NTRO. The offer of appointment clearly stated that she was being offered the said appointment on direct recruitment basis with effect from the date of her assumption of charge of the post and till the date of her superannuation. The offer of appointment also indicated that the appointment would be purely on temporary basis and until further orders and that she would be on&nbsp; probation for a period of one year from the date of appointment which period could be extended at the discretion of the competent authority.</b></p><p><b>6. The petitioner accepted the offer of appointment and the technical resignation of the petitioner to the post of Scientist ‘G’ in DRDO was accepted and she reported for duty as Scientist ‘H’ in NTRO on 25.06.2018.</b></p><p><b>8. The petitioner being aggrieved of the said order, approached the Central Administrative Tribunal&nbsp; challenging the said order. She sought for reinstatement with all consequential benefits including protection of seniority and treating the period from 13.02.2019 till date as being in service. She also challenged the order dated 13.11.2019 by which she was called&nbsp; for to report to duty&nbsp; by 16.12.2019, failing which dismissal proceedings would be initiated against her. The petitioner&nbsp; ultimately sought for a direction to respondent No.1 to accept her application for Voluntary Retirement Service and for a direction to be relieved with all pensionary and retirement benefits.</b></p><p><b>9. The Tribunal on consideration of the matter&nbsp; concluded that the impugned order was an order of discharge simpliciter and did not cast any stigma on the petitioner. The Tribunal also concluded that there was no substance in her plea that her discharge was a premature one and there was absolutely no justification to conclude that her performance was unsatisfactory.&nbsp; The&nbsp; Tribunal also concluded that there was no infirmity in the portion of the order which instructed the petitioner to report back to her duty in her parent department, as her lien was still maintained in her parent organization.</b></p><p><b>17. This is a rather strange case in which the employee states that she does no have any quarrel if her employer were to discharge her from service simpliciter and it is her only contention that having appointed on a direct recruitment basis, her employer could not have, in&nbsp; the guise of a refusing to declare her probationary period as having been successfully completed, should not be permitted to revert her back to her parent department and thereby to a lower cadre.</b></p><p><b>19. In order to join NTRO, as required under the Rules, she was required to resign from her post in DRDO, which&nbsp; &nbsp;is termed as a technical resignation, which was also accepted by her parent department. The effect of a&nbsp; technical resignation is that though the petitioner was no longer an employee of the DRDO, nevertheless, she would be entitled for the benefit of past services that she had rendered in DRDO which would have to be taken into account and added to the services that she was to render&nbsp; in NTRO. The moment the technical resignation was accepted for all purposes, the petitioner’s relation as an employee of the DRDO stood extinguished.</b></p><p><b>21.....The discharge of the petitioner in NTRO does not automatically revive the relationship of employer and employee between the petitioner and DRDO. It has to be kept in mind that a technical resignation was given and accepted only to&nbsp; ensure that the past service rendered in the parent department is not lost by the petitioner.</b></p><p><b>27. As held above, once the employee is appointed on direct recruitment basis to an higher post in a new department or organisation, the new employer cannot repatriate her to a lower post that she originally held in some other department. The concept of reversion in&nbsp; the case of direct recruitment would not arise.&nbsp; The argument&nbsp; in this regard, therefore, fails.</b></p><p><b>28. It has to be noted here that the repatriation of an employee would arise only if an employee is lent from one department to another. In such cases, an employee continues to be an employee of the parent department and her services are merely lent to another department. The employer or the authority to&nbsp; whose services the employee&nbsp; is lent, are both, at liberty to repatriate the employee to her parent department. This concept of repatriation cannot therefore be applied to a case where an employee has resigned in order to be appointed to another post in&nbsp; another department. Since, the very premise of Annexure ‘A6’ is one of premature repatriation, the same is obviously misconceived, and cannot be sustained as it stands.</b></p><p><b>29. We therefore hold that the order passed by the Tribunal cannot be sustained and the same is accordingly modified as sought for by the petitioner. The order dated 12.02.2019 shall be read as an order of discharge simpliciter. In other words, under the order dated 12.02.2019, the services of the petitioner shall stand discharged and she shall be entitled to all consequential benefits including the benefit of past service that she had rendered in DRDO for computing her terminal benefits.</b></p>', '554f23c1d97d0b1f5aed41cf74789566.jpg', '8c5507ea272f062ae4b364f9f71dd223.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-19', 1, '', '', '2021-10-19 16:34:07', '2021-10-19 16:34:07');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1098, 'se2axbBUuSkHjXU3E6FD9NII1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Right of indigent Muslim woman for maintenance is not confined to iddat nor limited to mehr amount\'\'. Justice Krishna Dixit does indepth research and quotes Holy Quran in support of divorced Muslim woman\'s plea for maintenance. ', '<p><b>Ezazur Rehman vs Saira Banu<br>Writ Petition 3002 of 2021 decided on 7 October 2021<br>Judgment Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413654/1/WP3002-15-07-10-2021.pdf\" target=\"_blank\">kar.nic.in/judgmentsdsp/bitstream/123456789/413654/1/WP3002-15-07-10-2021.pdf</a></b></p><p><b>This is yet another case of a hapless Muslim divorced wife battling for two decades for executing a maintenance decree; this again reminds of what the Privy Council lamented more than a century & a half ago about the difficulty a decree holder faces in the execution proceedings in THE GENERAL MANAGER OF THE RAJ DURBHANGA VS. MAHARAJAH COOMAR RAMAPUT SINGH, MOORE’S INDIAN APPEALS </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(1871-72), VOL.14, PAGE 605, it is worth mentioning:</b></p><p><b><i>“These proceedings certainly illustrate what was said by Mr.Doyne, and what has been often stated before, that the difficulties of a litigant in India  begin when he has obtained a Decree…</i>”</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Apex Court in its recent decision affirming the judgment of this court has expressed its concern & aguish against protraction of execution proceedings and advised all the courts of the country to ensure their expeditious disposal vide RAHUL SHAH VS. JINENDRA KUMAR GANDHI & ORS. 2021 SCC Online SC 341.</b><br></p><p><b>3. I have heard the learned counsel for the parties and perused the petition papers; I regret to state that the assistance from the Bar was frugal; however, that would not relieve the Court of its duty to adjudge the cause;  the  following three questions of seminal importance arise for consideration in this case:</b></p><p><b>(i) whether a Muslim is duty bound to make provision for his ex-wife beyond iddat despite paying paltry Mehr if she remains un-remarried and is incapable of maintaining herself ?</b></p><p><b>(a) Ex-husband\'s contention that amongst Muslims, marriage is only a civil contract,  cannot  be  disputed; Mahmood, J in the famous case of ABDUL KADIR VS. SALIMA (1886) 8 ALL 149, observed:</b></p><p><b>\"…marriage among Muhammadans is not a sacrament, but purely a civil contract; and though it is solemnised generally with recitation of certain verses from the Kuran, yet the Muhammadan law </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">does not positively prescribe any service peculiar to the occasion.”</b></p><p><b>\"Marriage is a contract\"  has many shades of meaning; it  is not  a sacrament unlike  a  Hindu  marriage,  is  true;  whatever  be  the epistemology, marriage crowns the parties with status like husband, wife, in-laws, etc; if children are born, they earn the promotional status of father & mother, and of  grand-parents  too, if the lineage continues; when marriage  is dissolved,  only the spousal tie is torn and  the  status  comes  to  an  end; however, the blood of divorced spouses flows in the veins  of  their children and grandsire; added,  demise  of  a  spouse  renders the other a widow/widower; succession to estate may also open.</b></p><p><b>(b) All the above shows the kinds of relationship that the marriage as a social institution brings in, regardless of religion which the parties belong to and the contractual elements; to put it succinctly, marriage amongst Muslims begins with the contract and graduates to the status as it ordinarily does in any other community; this very status gives rise to certain justiciable obligations; they are ex contractu; a muslim marriage is not a sacrament, does not repel certain </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">rights & obligations arising from its dissolution; such a marriage dissolved by divorce, per se does not annihilate all the duties & obligations of parties by lock, stock & barrel; in law, new obligations too may arise, one of them being the circumstantial duty of a person to provide sustenance to his ex-wife who is destituted by divorce.</b></p><p><b>The view that a pious muslim owes a moral/religious duty to provide subsistence to his destitute ex-wife gains support from the following verses of The Holy Quran:</b></p><p><b><i>“When you divorce women, and they (are about to) fulfill the term of their (iddat), either take them back on equitable terms or set them free on equitable terms, but do not take back to injure them (or) to take undue advantage, if anyone does that,  he wrongs his soul...” (Surah Al Bakhra Aiyat No.231);</i></b></p><p><b><i>“There is no sin on you, if you divorce women while you have not touched (had sexual relation with) them nor appointed them unto their Mehr, but bestowed on them (as suitable gift) the rich according to his means and the poor according to  his means, a gift reasonable amount is a duty  on  the doers of good” (Surah Al Bakhra Aiyat No.236).</i></b></p><p><b>There is also sufficient intrinsic material in the Holy Quran & Hadith, which lays foundation to the accrual of a corresponding right in favour a divorced wife for maintenance; generally it is conditioned by three cumulative factors viz (i) mehr amount is insignificant; (ii) she is incapable of paddling her life boat on her own; & (iii) she has remained un- remarried.</b></p><p><b>(IV)<span style=\"white-space:pre\">	</span>The right of indigent Muslim wife for maintenance is not confined to iddat nor limited to mehr amount:</b></p><p><b>(a) A Muslim ex-wife has a right to maintenance subject to satisfying certain conditions, is indisputable; in Islamic jurisprudence, as a general norm, Mehr i.e., dower is treated as consideration for marriage; it may be a ‘prompt dower’ payable before the wife is called upon to enter the conjugal domicile or it may be a ‘deferred dower’ payable on the dissolution of marriage  </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">vide HAMIRA BIBI VS. ZUBAIDA BIBI (1916) 43 IA 294; ordinarily, the right of an ex-wife to maintenance does not extend beyond iddat; I should hasten  to add that Islamic jurisprudence has not treated this as a Thumb Rule ever, although there is some juristic opinion in variance; this norm has to be subject to the rider that the amount paid to the ex-wife, be it in the form of mehr or be it a sum quantified on the basis of mehr, or otherwise, is not an inadequate or illusory sum; it is a matter of common knowledge that more often than not, mehr is fixed inadequately, bride-side lacking equal bargaining power inter alia because of economic & gender-related factors; this is not to say that the inadequacy of mehr would affect the validity of nikah, that being altogether a different matter.</b></p><p><b>(b)<span style=\"white-space:pre\">	</span>For how long the right to maintenance enures to a divorced muslim wife, largely is no longer res integra; subject to all just exceptions, the duty of a muslim to provide sustenance to his ex-wife is co-extensive with her requirement, the yardstick being the life essentials  and  not the luxury; the Hon\'ble Supreme Court in DANIAL LATIFI Vs. UOI, AIR 2001 SC 3958, having construed the provisions of 1986 Act supra has observed that a muslim is duty bound  to make a reasonable & fair provision for the future of his divorced wife, and this duty, as of necessity, extends for a period beyond iddat;</b></p><p><b>The payment of frugal mehr money per se cannot be a defence availing to an able bodied man for denying the claim or defying the decree, for maintenance; if an illusory compensation for the public acquisition of private property is \'no compensation\' vide KESAVANANDA (AIR 1973 SC 1461), the reason & justice  tell us that an illusory mehr cannot be  the basis for the quantification of the amount of maintenance nor for limiting its duration to iddat; the analogy of \"illusory compensation\" is logically invocable since the payment of amount by the husband as mehr on talaq, by its very nature has compensatory elements; \'de minimis non curat lex\': law does not take cognizance of the insignificant [COWARD VS. BADLEY (1859) 4 H&N 478]; after all, an illusion is a myth of reality; illusory things cannot constitute the  \"building blocks of jural relations\", more particularly the immunity from duty arising from law, religion & morals.</b></p><p><b>(e) In matters of this kind, courts need to have Lord Denning\'s Teleological Approach (BUCHANAN vs. BABCO, 1977(2) WLR 107) to the interpretation of personal law, even if it bears religious overtones; or else, it ceases to be living law  of the people and fails to serve its avowed purpose; an argument to the contrary would perpetuate hegemonic masculinity over the women that are disadvantaged by the unscrupulous acts of men; added, that strikes at the root of \'justice as fairness.\' or the very \"idea of justice\"; the approach of courts should be consistent with the progression of law achieved precedent by precedent through judicial activism, despite some clergical resistance thereto; this branch of Muslim personal law has marched from April to May in SHAH BANO (1985) 2 SCC 556 and now finds June of its life in SHAYARA BANO (2017) 9 SCC 1; any adjudication of maintenance disputes without reference to this progression of law runs the  risk of being tainted as an unfair treatment of  the subject matter. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">It hardly needs to be stated that as  a  constitutional  imperative [Article 51(c)], the International Treaties & Conventions animate our domestic law, be it legislation, precedent, custom or contract vide VISHAKA Vs. STATE OF RAJASTHAN, (1997) 6 SCC 241; the human values that animate our constitutional regime coupled with several International Treaties/Conventions aimed at protecting life, liberty & dignity of women, give rise to \'title facts\' from which the right to maintenance meaningful to the hapless women in general and divorced women in particular.</b></p><p><b>(b)<span style=\"white-space:pre\">	</span>It hardly needs to be stated that a decision is an authority for the  proposition which is laid down in a given  fact matrix and not for all that which logically follows from what has been so laid down: Lord Halsbury in Quinn Vs. Leathem, (1901) A.C.495; invoking the ratio in Jolly George, virtually amounts to approximating a maintenance decree founded on personal law to a money decree  structured  on loan contract; thus, the substratum of the one differs from  that of the other, although the procedure and the machinery adopted for their enforcement are same; therefore, they are poles asunder; a contra argument amounts to treating the un-equals as equals and that offends the rule of equality enshrined in Article 14.</b></p><p><b>(a)The contention of counsel for the petitioner that his client has contracted another marriage and further, begotten a child from it, hardly provides a justification for not obeying the maintenance decree that is secured by his  ex- wife; a Muslim hurriedly contracting another marriage after pronouncing talaq upon his first wife, cannot be heard to say that he has to maintain the new spouse and  the  child  begotten from her as a ground for not discharging the maintenance decree; he ought to have known his responsibility towards the ex-wife who does not have anything  </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to fall back upon; the said responsibility arose from his own act of talaq and prior to espousing another woman; the responsibility & duty owed by a person to his ex-wife are not destroyed by his contracting another marriage; an argument  to the contrary would amount to placing premium on the irresponsibility of a husband who divorces the existing wife and soon espouses another; countenancing the contention of the kind virtually amounts to permitting a person to take the advantage of his own wrong; added this contention is repugnant to law, morality & ethics; if such a contention is countenanced, that would only encourage talaq which the law shuns.</b></p><p><b>In the above circumstances, this Writ Petition being devoid of merits, is liable to be dismissed and accordingly, it is, with a cost of Rs.25,000/-; the learned judge of Court  below is requested to accomplish the execution on a war footing and report compliance to the Registrar General of this Court within three months.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'e00a1c9a99ae6550a83e7d8fc476de6d.jpg', '1c89d3f6c6c75713e0a31524be59749c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-19', 1, '', '', '2021-10-19 18:25:28', '2021-10-19 18:48:39'),
(1099, 'vZJYYYq170r4hSNbmL0Suri3A', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Open space and park belonging to a group housing scheme i.e. residential apartment complexes are for the exclusive use of apartment residents and they cannot be notified as public park or as public space. Karnataka High Court. ', '<p><b>Srinivasamurthy T R vs The Bangalore Development Authoirty and others. </b></p><p><b>Writ Petition 1137 of 2019 decided on 27 September 2021</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413369/1/WP1137-19-27-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413369/1/WP1137-19-27-09-2021.pdf</a></b></p><p><b>The captioned writ petition is filed in the nature of public interest litigation to issue a mandamus to the respondent to comply the order dated 23.05.2014 passed by the 3rd respondent as per Annexure-C and also to direct the 1st respondent to recover possession of the parks relinquished by the 4th respondent in terms of relinquishment deed dated 30.6.2011 and also inspect residential complex developed by respondent No.4 to ascertain as to whether storm water drain running through his property is diverted with proper sanctions/permissions and if not to take suitable remedial action against the 4th respondent.</b></p><p><b>8. The second point that is raised by the petitioner is that the public at large are entitled to use the park located within the apartment namely Brigade Omega. </b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. On meticulous examination of the Regulation 7.1(1), we would find that 10% of the land is required to be reserved for park and open space and it is well within the jurisdiction of the authority to allow the Local Residents Association(Registered) to maintain the park and open space. On reading of the above said Regulation, it is clearly evident that Regulation 7.1(1) is in respect of Group Housing Scheme, wherein a developer after securing permission constructs an apartment. Regulation 7.1(1) clearly indicates that the Legislature has consciously used the word \'local residents association\' which only refers to the flat owners of that particular group housing scheme and does not include the area residents or the public at large.</b></p><p><b>12.<span style=\"white-space:pre\">	</span>Therefore, we are of the view that the open space and park belonging to a Group Housing Scheme cannot be notified as a public park or as a public space. Regulation 7.1(1) was brought into force with a view to discourage the builders or owners meddling with open space and park area. Therefore, the law mandates that the authority shall secure possession of the parks and open space under registered documents free of cost and thereafter, the discretion vests with the authority to deliver possession to the local residents association which invariably refers to the flat owners of that Group Housing Scheme and not to the local residents and general public at large. What can be inferred from Regulation 7.1(1) is that these parks and open space are not open for public at large and therefore, the contention of the petitioner </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that the public at large is entitled to use the park and open space is misconceived. Regulations for residential development 7.1(1) clearly indicates that internal roads, common space and parks, if any, are part and parcel of Group Housing Scheme and the same are located inside the community and though controlled by the civic authorities or local bodies are to be treated as gated communities and therefore, it is only the residents of the community who are entitled to enjoy exclusively and have access to open space and parks.</b></p><p><b>13.<span style=\"white-space:pre\">	</span>We would also find that there is a small distinction between a Group Housing Scheme and an approved private layout. In a developed private layout, all the roads and common facilities would rest with the local bodies and therefore, community of residents in an approved private layout cannot claim exclusive rights over open spaces and parks, which are public parks and public open spaces. In all layouts, the roads, parks, open space reserved for civic amenities rest with local bodies namely Corporation, Municipality or Town Municipal Council. If a property is developed in the form of layout, public at large cannot be prevented from entering a layout. The residents cannot claim exclusivity and therefore, closure of layout is not permissible unless sanction plan of layout provides for gated community. However, the said principal cannot be extended to a group housing scheme and it is only the local residents association and the flat owners of that group housing scheme alone are entitled to have access to the parks and open space.</b></p><p><b>14.<span style=\"white-space:pre\">	</span>In the present case on hand, there is no ambiguity under the Regulations for Residential Development Plan more particularly in respect of a Group Housing Scheme. As per Regulation 7.1(1) and (2), 10% of the land shall be reserved for park and open space and the same shall be relinquished to the authority free of cost and 5% of civic amenities also has to be developed by the developer and handed over to the local residents association for maintenance. This in itself demonstrates that the Regulations clearly indicate that </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">legislature has consciously referred to local residents association and therefore, the area residents or the public at large stand excluded and they cannot seek right of entry or access to the park which is located inside the apartment. Though the 4th respondent-developer has relinquished the parks in favour of 1st respondent-Bengaluru Development Authority, the relinquishment by no means can be inferred that it is for public purpose. The effect of relinquishment by 4th respondent-developer is that the developer ceases to be the legal owner of the park and open space relinquished in favour of Bengaluru Development Authority. The 1st respondent- Bengaluru Development Authority holds the land for the benefit of the residents of the apartments and not the public at large.</b></p><div><br></div>', 'c47d1cdf6d47de41a018a15ee01a79d8.jpg', 'badfb954a2e6d8f9be507965bb76ddb5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-21', 1, '', '', '2021-10-21 19:04:28', '2021-10-21 19:07:13'),
(1100, '9GTroRjdKfjJxJ0poTpVPXQu8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Change of the date of birth. Inordinate and unexplained delay or laches on the part of the public servant. Application cannot be considered at the fag end of his service. Karnataka High Court reiterates.  ', '<p><b>M. Subramaniam Reddy vs The Karnataka Rural Infrastructure Development Ltd and another<br>Writ Petition 14168 of 2020 decided on 29 June 2020<br>Judgment Link: </b><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/334079/1/WP146168-20-29-06-2020.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/334079/1/WP146168-20-29-06-2020.pdf</a></span></p><p><b>13.<span style=\"white-space:pre\">	</span>In present case on hand, the petitioner is claiming alteration of his date of birth by relying on birth certificate as against his SSLC Marks Card which was traced by him in the year 2015. Basing his claim on birth certificate issued by the Tahasildar, Hosapete dated 04.07.2015 and by relying on the judgment rendered by this Court in RFA No.1674/2013, the petitioner is asserting that he is entitled to seek alteration of his date of birth </b></p><p><b>14.<span style=\"white-space:pre\">	</span>On perusal of material on record and the procedure contemplated under the Karnataka State Servants (Determination of Age) Act, 1974, Section 4 clearly contemplates that there is a bar to seek alteration of date of birth by relying on the judgment, decree or order.</b></p><p><b>15.<span style=\"white-space:pre\">	</span>The object of the Act is to provide for determination of the age of State Servants only insofar it relates to their conditions. It is for this limited purpose that provisions have been made for determining the age of State Servants. </b></p><p><b>16.<span style=\"white-space:pre\">	</span>On perusal of Section 5, it is clearly evident that, proviso to sub-section (1) contemplates that if age, date of birth of State servant has been accepted and recorded no such alteration is permissible to the advantage of the State Servant. Sub-section (2) of Section 5 contemplates limitation and provides for necessary alteration in regard to date of birth within three years from the date on which his age and date of birth is accepted and recorded in the service register.</b></p><p><b>17.... It is a matter of common knowledge that most of State Servants invariably  educated persons often even seeking extension of their employment by resorting to seek correction in regard to their date of birth. As the State Servants are required to retire attaining the age of superannuation, acceptance by the appointing authority of correct date of birth assumes great importance.</b></p><p><b>18.<span style=\"white-space:pre\">	</span>The Division Bench of this Court in the case of C.P.Govindarajan and another Vs. State of Karnataka and others reported in 1984 (1) Kar.L.J 328 was of the view that, persons occupying very high positions have also succumbed to such temptations in seeking correction of their date of birth at the fag end of their service. </b></p><p><b>21.<span style=\"white-space:pre\">	</span>It is a trite law that, validity of such a decree which lacks inherent jurisdiction can be challenged at any stage even in execution and collateral proceedings. In this background, I am of the view that, since the decree passed in RFA No.1674/2013 has not attained finality, the petitioner cannot have the benefit of the same.</b></p><p><b>22.<span style=\"white-space:pre\">	</span>The judgment relied on by the respondents in the case of Bharat Coking Coal Ltd. And others Vs.Shyam Kishore Singh reported in AIR 2020 SC 940, is squarely applicable to the case on hand. The Hon’ble Apex Court relying on several judgments has held that, even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. The Hon’ble Apex Court was of the view that, if a particular date of birth is entered in the service register, a change sought cannot be entertained at the fag end of service after accepting the same to be correct during entire service. The Apex Court was also of the view that, in similar decision the Apex Court has consistently held that the request for change of the date of birth in the service records at the fag end of service is not sustainable. The Hon’ble Apex Court by reiterating the proposition rendered by the Apex Court in the case of Home Deptt. Vs. R.Kirubakaran has held that, any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in the process.</b></p><p><b>24.<span style=\"white-space:pre\">	</span>Even if for the sake of argument, the contention raised by the learned counsel for the petitioner is accepted that the provisions of the Karnataka State Servants (Determination of Age) Act, 1974 are not applicable, this Court still compelled to examine the factual score that is depicted in the present writ petition which reflects laches and laxness on the part of the petitioner in approaching the authorities seeking correction in the date of birth. Inordinate and unexplained delay or laches on the part of the State servant cannot be considered at the fag end of his service. Government policy regarding rejection of belated claim for alteration in date of birth has been reinforced by the findings and observations of the Hon’ble Apex Court in catena of judgments. Hence, inaction on the part of the petitioner for a period almost 31 years from the date of joining into service would preclude the petitioner from seeking that entry of his date of birth in the service record was not correct. The plea of mistake at the time of initial declaration cannot be entertained at this stage. Petitioner has given declaration of his age amongst other particulars in a proforma descriptive roll which is signed by the petitioner. Consequently, a service books is prepared where the date of birth is accepted and recorded in service book. On the basis of age mentioned in the service book, the date of superannuation is determined.</b></p>', 'fe5ef4087343f941774cba2d80189ff2.jpg', 'cafe6c84fe6407120df1fe8a596c543a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-21', 1, '', '', '2021-10-21 21:53:13', '2021-10-21 21:53:36'),
(1101, 'BNG5fqTj2q7KB2rBeyvwzTqYS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'On account of expansion of public interest litigation, we are witnessing frivolous litigations and increasing instances of abuse of public interest litigation.\'\' Karnataka High Court. ', '<p><b>Srinivasamurthy T R vs The Bangalore Development Authoirty and others.&nbsp;</b></p><p><b>Writ Petition 1137 of 2019 decided on 27 September 2021</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413369/1/WP1137-19-27-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413369/1/WP1137-19-27-09-2021.pdf</a></b></p><p><b>The captioned writ petition is filed in the nature of public interest litigation to issue a mandamus to the respondent to comply the order dated 23.05.2014 passed by the 3rd respondent as per Annexure-C and also to direct the 1st respondent to recover possession of the parks relinquished by the 4th respondent in terms of relinquishment deed dated 30.6.2011 and also inspect residential complex developed by respondent No.4 to ascertain as to whether storm water drain running through his property is diverted with proper sanctions/permissions and if not to take suitable remedial action against the 4th respondent.</b></p><p><b>8. The second point that is raised by the petitioner is that the public at large are entitled to use the park located within the apartment namely Brigade Omega.&nbsp;</b></p><p><b>10.<span style=\"white-space:pre\">	</span>On meticulous examination of the Regulation 7.1(1), we would find that 10% of the land is required to be reserved for park and open space and it is well within the jurisdiction of the authority to allow the Local Residents Association(Registered) to maintain the park and open space. On reading of the above said Regulation, it is clearly evident that Regulation 7.1(1) is in respect of Group Housing Scheme, wherein a developer after securing permission constructs an apartment. Regulation 7.1(1) clearly indicates that the Legislature has consciously used the word \'local residents association\' which only refers to the flat owners of that particular group housing scheme and does not include the area residents or the public at large.</b></p><p><b>12.<span style=\"white-space:pre\">	</span>Therefore, we are of the view that the open space and park belonging to a Group Housing Scheme cannot be notified as a public park or as a public space. Regulation 7.1(1) was brought into force with a view to discourage the builders or owners meddling with open space and park area. Therefore, the law mandates that the authority shall secure possession of the parks and open space under registered documents free of cost and thereafter, the discretion vests with the authority to deliver possession to the local residents association which invariably refers to the flat owners of that Group Housing Scheme and not to the local residents and general public at large. What can be inferred from Regulation 7.1(1) is that these parks and open space are not open for public at large and therefore, the contention of the petitioner&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that the public at large is entitled to use the park and open space is misconceived. Regulations for residential development 7.1(1) clearly indicates that internal roads, common space and parks, if any, are part and parcel of Group Housing Scheme and the same are located inside the community and though controlled by the civic authorities or local bodies are to be treated as gated communities and therefore, it is only the residents of the community who are entitled to enjoy exclusively and have access to open space and parks.</b></p><p><b>13.<span style=\"white-space:pre\">	</span>We would also find that there is a small distinction between a Group Housing Scheme and an approved private layout. In a developed private layout, all the roads and common facilities would rest with the local bodies and therefore, community of residents in an approved private layout cannot claim exclusive rights over open spaces and parks, which are public parks and public open spaces. In all layouts, the roads, parks, open space reserved for civic amenities rest with local bodies namely Corporation, Municipality or Town Municipal Council. If a property is developed in the form of layout, public at large cannot be prevented from entering a layout. The residents cannot claim exclusivity and therefore, closure of layout is not permissible unless sanction plan of layout provides for gated community. However, the said principal cannot be extended to a group housing scheme and it is only the local residents association and the flat owners of that group housing scheme alone are entitled to have access to the parks and open space.</b></p><p><b>14. In the present case on hand, there is no ambiguity under the Regulations for Residential Development Plan more particularly in respect of a Group Housing Scheme. As per Regulation 7.1(1) and (2), 10% of the land shall be reserved for park and open space and the same shall be relinquished to the authority free of cost and 5% of civic amenities also has to be developed by the developer and handed over to the local residents association for maintenance. This in itself demonstrates that the Regulations clearly indicate that&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">legislature has consciously referred to local residents association and therefore, the area residents or the public at large stand excluded and they cannot seek right of entry or access to the park which is located inside the apartment. Though the 4th respondent-developer has relinquished the parks in favour of 1st respondent-Bengaluru Development Authority, the relinquishment by no means can be inferred that it is for public purpose. The effect of relinquishment by 4th respondent-developer is that the developer ceases to be the legal owner of the park and open space relinquished in favour of Bengaluru Development Authority. The 1st respondent- Bengaluru Development Authority holds the land for the benefit of the residents of the apartments and not the public at large.</b></p><p><b>16...Petitioner is the resident of Uttarahalli&nbsp; whereas the apartment namely Brigade Omega which is the subject-matter of this writ petition is situated at Turahalli, Uttarahalli Hobli, Bengaluru South Taluk, which is roughly 10 Kms. apart. Public Interest litigation which is a strategic arm of the legal movement and intended to bring justice within the reach of the poor masses who constitute the low visibility area of humanity and therefore, public interest litigation is essentially a co-operative and collaborative effort on the part of the petitioner, State or public authority and the Court to secure observance of constitutional or legal right. These comments were made at the time when the public interest litigation was at its infancy. But, today, the public interest litigation does not rest or is confined to the pious attitude of the volunteering of such litigation to bring justice within reach of the poor, but has traveled miles ahead to respond and&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">enforce anything of public interest. It is on account of expansion and evolution of public interest litigation, we are often witnessing frivolous litigations and increasing instances of abuse of public interest litigation. Petitioner who is a resident of some other area has come up with the present public interest litigation. The material placed on record does not indicate that the same is being prosecuted to promote and indicate a public interest. The petitioner has not placed on record any material to indicate that on account of denial of access to park which is part and parcel of a Group Housing Scheme has caused legal injury and has resulted in violation of legal rights of the public at large. We do not find any material which would indicate that the public rights are adversely affected or are at stake in the present case on hand. On the contrary, the defence set up by 4th respondent that the present petitioner has filed the present public interest litigation at the instance of his close friend namely Mr. Manjunath appears to be probable. To substantiate the pleadings averred&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">at Para 5 of the statement of objections filed by 4th respondent, relevant documents are produced. Therefore, we are of the view that the petitioner has no locus standi to agitate the present writ petition insofar as the parks and open space are concerned and the grounds urged in the writ petition to issue a mandamus to 1st respondent-authority to enable the public at large to utilize the park and open space cannot be entertained and acceded to.</b></p><p><b>17.<span style=\"white-space:pre\">	</span>For the foregoing reasons, the writ petition is devoid of merits and accordingly, stands dismissed.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '7d74c9ba2befe26757b92592f6555907.jpg', '851439f0e6c411001a59de1e4a348695.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-21', 1, '', '', '2021-10-22 02:05:56', '2021-10-22 02:05:56'),
(1102, '2A41z73U51oOd6ySihusao0Om', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Supreme Court explains governing rules for grant of parole and furlough to prisoners.    ', '<p><b>State of Gujarat and another vs Narayan.<br>Criminal Appeal No. 1159 of 2021 decided on 20 October 2021<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice Dr Dhananjaya Y Chandrachud and Justice B V Nagarathna&nbsp;<br></span>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2021/17568/17568_2021_34_1502_30740_Judgement_20-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/17568/17568_2021_34_1502_30740_Judgement_20-Oct-2021.pdf</a></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>17 In State of Maharashtra v. Suresh Pandurang Darvakar&nbsp;(2006) 4 SCC 776 the Court distinguished parole from furlough.\r\nWhile both parole and furlough are temporary releases from confinement, parole \r\n17\r\nis granted only for a specific purpose.</b></span></p><p><b>18 The difference between bail, furlough and parole was also considered by a\r\ntwo-judge Bench of this Court in State of Haryana v. Mohinder Singh&nbsp;(2000) 3 SCC 394 Justice\r\nDP Wadhwa, referring to the Haryana Good Conduct Prisoners (Temporary\r\nRelease) Act 1988 and the Punjab Good Conduct Prisoners (Temporary\r\nRelease) Act 1962, observed that</b></p><p><b><i>“17. “Furlough” and “parole” are two distinct terms now being\r\nused in the Jail Manuals or laws relating to temporary release\r\nof prisoners. These two terms have acquired different\r\nmeanings in the statute with varied results. Dictionary\r\nmeanings, therefore, are not quite helpful. In this connection\r\nwe may refer to the Haryana Good Conduct Prisoners\r\n(Temporary Release) Act, 1988 which has repealed the\r\nPunjab Good Conduct Prisoners (Temporary Release) Act,\r\n1962. The Punjab Act was earlier applicable in the State of\r\nHaryana. The language of both the Acts is same and it may\r\nbe useful to refer to Sections 3 and 4 of any of these two Acts\r\nto understand the difference between parole and furlough:</i></b></p><p><b><i>18. It would be thus seen that when a prisoner is on parole\r\nhis period of release does not count towards the total period\r\nof sentence while when he is on furlough he is eligible to have\r\nthe period of release counted towards the total period of his\r\nsentence undergone by him.”</i><br></b></p><p><b>19. In Asfaq v. State of Rajasthan (2017) 15 SCC 55, Justice AK Sikri, speaking for the twojudge Bench observed that:\r\n</b></p><p><b><i>“11. There is a subtle distinction between parole and furlough.\r\nA parole can be defined as conditional release of prisoners\r\ni.e. an early release of a prisoner, conditional on good&nbsp;&nbsp;behaviour and regular reporting to the authorities for a set\r\nperiod of time. It can also be defined as a form of conditional\r\npardon by which the convict is released before the expiration\r\nof his term. Thus, the parole is granted for good behaviour on\r\nthe condition that parolee regularly reports to a supervising\r\nofficer for a specified period. Such a release of the prisoner\r\non parole can also be temporarily on some basic grounds. In\r\nthat eventuality, it is to be treated as mere suspension of the\r\nsentence for time being, keeping the quantum of sentence\r\nintact. Release on parole is designed to afford some relief to\r\nthe prisoners in certain specified exigencies.</i></b></p><p><b><i> 14. Furlough, on the other hand, is a brief release from the\r\nprison. It is conditional and is given in case of long-term\r\nimprisonment. The period of sentence spent on furlough by\r\nthe prisoners need not be undergone by him as is done in the\r\ncase of parole. Furlough is granted as a good conduct\r\nremission.”</i></b></p><p><b>Summarising the difference between parole and furlough, the Court noted that</b></p><p><b><i>(i) Both parole and furlough are conditional release.\r\n<br>(ii) Parole can be granted in case of short-term imprisonment\r\nwhereas in furlough it is granted in case of long-term\r\nimprisonment.\r\n<br>(iii) Duration of parole extends to one month whereas in the\r\ncase of furlough it extends to fourteen days maximum.\r\n<br>(iv) Parole is granted by Divisional Commissioner and\r\nfurlough is granted by the Deputy Inspector General of\r\nPrisons.\r\n<br>(v) For parole, specific reason is required, whereas furlough is\r\nmeant for breaking the monotony of imprisonment.\r\n<br>(vi) The term of imprisonment is not included in the\r\ncomputation of the term of parole, whereas it is vice versa in\r\nfurlough.\r\n<br>(vii) Parole can be granted number of times whereas there is\r\nlimitation in the case of furlough.\r\n<br>(viii) Since furlough is not granted for any particular reason, it\r\ncan be denied in the interest of the society</i><br></b></p><p><b>After noting the purpose of parole on the one hand and furlough on the other, the\r\nCourt indicated the need for a balance to be maintained between two competing\r\ninterests while granting parole or furlough- that of reforming the convict on one\r\nhand and the public purpose and interests of society on the other:<br></b></p><p><b><i>“19. Having noted the aforesaid public purpose in granting\r\nparole or furlough, ingrained in the reformation theory of\r\nsentencing, other competing public interest has also to be\r\nkept in mind while deciding as to whether in a particular case\r\nparole or furlough is to be granted or not. This public\r\ninterest also demands that those who are habitual\r\noffenders and may have the tendency to commit the\r\ncrime again after their release on parole or have the\r\ntendency to become a threat to the law and order of the\r\nsociety, should not be released on parole. This aspect\r\ntakes care of other objectives of sentencing, namely,\r\ndeterrence and prevention. This side of the coin is the\r\nexperience that great number of crimes are committed by the\r\noffenders who have been put back in the street after\r\nconviction. Therefore, while deciding as to whether a\r\nparticular prisoner deserves to be released on parole or not,\r\nthe aforesaid aspects have also to be kept in mind. To put it\r\ntersely, the authorities are supposed to address the question\r\nas to whether the convict is such a person who has the\r\ntendency to commit such a crime or he is showing tendency\r\nto reform himself to become a good citizen.\r\n</i></b></p><p><b><i>20. Thus, not all people in prison are appropriate for grant of\r\nfurlough or parole. Obviously, society must isolate those who\r\nshow patterns of preying upon victims. Yet administrators\r\nought to encourage those offenders who demonstrate a\r\ncommitment to reconcile with society and whose behaviour\r\nshows that they aspire to live as law-abiding citizens. Thus,\r\nparole programme should be used as a tool to shape such\r\nadjustments.”</i></b></p><p><b>20 The principles may be formulated in broad, general terms bearing in mind\r\nthe caveat that the governing rules for parole and furlough have to be applied in\r\neach context. The principles are thus:\r\n<br>(i) Furlough and parole envisage a short-term temporary release from\r\ncustody;\r\n<br>(ii) While parole is granted for the prisoner to meet a specific exigency,\r\nfurlough may be granted after a stipulated number of years have been\r\nserved without any reason;\r\n<br>(iii) The grant of furlough is to break the monotony of imprisonment and to\r\nenable the convict to maintain continuity with family life and integration with\r\nsociety;\r\n<br>(iv) Although furlough can be claimed without a reason, the prisoner does not\r\nhave an absolute legal right to claim furlough;\r\n<br>(v) The grant of furlough must be balanced against the public interest and can\r\nbe refused to certain categories of prisoners.</b></p><p><br></p>', '5f186eaa80fa05b6becdbd8831d95a21.jpeg', '77d30834b705d8f7f641ede80c502718.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-22', 1, '', '', '2021-10-23 00:59:31', '2021-10-23 00:59:31'),
(1103, 'fchu2cOdksn1eaxFO83eM8h6W', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Fair trial is not only to the victim but to the accused also.\'\'  Karnataka High Court quashes appointment of Special Public Prosecutor who, as Advocate, regularly represented the victim. ', '<p><b>Mangalpady Naresh Shenoy vs The State of Karnataka and others.&nbsp;<br>Writ Petition 1045 of 2017 decided on 30 September 2021<br>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413659/1/WP1045-17-30-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413659/1/WP1045-17-30-09-2021.pdf</a></b></p><p><b>Petitioner in this writ petition calls in question the Government Notification dated 21.12.2016 issued under sub-section (8) of Section 24 of the Code of Criminal Procedure appointing one Sri. Ravindranatha Kamath / respondent No.5 herein as Special Public Prosecutor and all further proceedings taken up thereto.</b></p><p><b>11. I have given my anxious consideration to the submissions made by respective learned counsel, in furtherance thereof, the only issue that calls for my consideration is, whether the appointment of 5th respondent as Special Public Prosecutor would result in the apprehension of the petitioner to an unfair trial?</b></p><p><b>The Apex Court, in the aforesaid judgment,&nbsp; has&nbsp; held&nbsp; that there may be cases where the complainant&nbsp; may&nbsp; have begun proceedings to victimize the&nbsp; opponent and&nbsp; in such a case, if the State concedes to the request for appointment of Special Public Prosecutor of the choice&nbsp; &nbsp;of the complainant it would be travesty of justice.</b></p><p><b>19. The facts are not in dispute. The 5th respondent has appeared for the 6th respondent every time when some dispute cropped against the 6th respondent, is also not in dispute. The learned counsel&nbsp; for the petitioner has filed a memo of cases, which the 5th respondent has represented the complainant. Few of the cases where the complainant has represented by the 5th respondent before his appointment as Special Public Prosecutor and after his appointment as Special Public Prosecutor.&nbsp;</b></p><p><b>The afore-mentioned appearances of the 5th respondent for the complainant is admitted by the 5th&nbsp; respondent who defends it on the ground that it has not caused any prejudice to the petitioner or an apprehension that there would not be a fair trial.</b></p><p><b>20. The Special Public Prosecutor has a pivotal role in the conduct of trial against any&nbsp; accused as is held by this Court in the case of K.V.Shiva Reddy vs. State of Karnataka and others - ILR 2005 KAR 4780. The learned Single Judge while considering the submissions has considered what is the status and responsibility of a Public Prosecutor in a criminal trial and the right of the accused to challenge the order of appointment of the Special Public Prosecutor.&nbsp;</b></p><p><b>21.Therefore, the apprehension of the petitioner that he would not be subjected to a fair trial in the light&nbsp; of the 5th respondent/counsel for the complainant being appointed as Special Public Prosecutor is well founded. The other judgments relied on by the 5th&nbsp; respondent&nbsp; were all concerning who should pay remuneration to a Special Public Prosecutor, who enjoys the confidence of the complainant. Therefore, those judgments relied on by the learned counsel are all inapplicable to the facts of the case at hand and the ones that are relied on by the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">learned counsel for the petitioner sound acceptance as they consider the appointment on both the issues of appointment and remuneration.</b></p><p><b>22. In view of the aforementioned observations, the appointment of the 5th respondent to be the Special Public Prosecutor, in the case at hand, was&nbsp; erroneous and unwarranted. The impugned order is thus rendered unsustainable. Quashing of the impugned order would not however come in the way of Government exercising the power under Section 24(8) of the Cr.P.C. to appoint any Special Public Prosecutor.</b></p><p><b>Writ Petition is allowed</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '1a63426117f6035eb345e520ab459c79.jpg', '6de671f66d1bce394c060c7643a73bd9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-22', 1, '', '', '2021-10-23 02:15:49', '2021-10-23 02:15:49');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1105, '5gzCsGjghgsJmY937KWw5aySB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Party seeking transfer of ongoing winding up proceedings from High Court to NCLT must make out grounds as regards the need for restructuring of the Company. Power of transfer involves judicial discretion. Karnataka High Court. ', '<p><b>M/s. Nitesh Residency Hotels Pvt Ltd. vs The Archdiocese of Bangalore<br>Company Application 243 of 2021 in Company Petition 243 of 2014 decided on 28 September 2021.<br>Judgment Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/415208/1/CA167-21-28-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/415208/1/CA167-21-28-09-2021.pdf</a></b></p><p><b>Company Application No.300/2020 in Company Petition No.136/2016 and Company Application No.167/2021 in Company Petition No.243/2014 are taken up together, as identical interlocutory applications are filed in both the matters seeking transfer of the pending winding up proceedings to the National Company Law Tribunal (\"NCLT\" for short) to be disposed off in terms of “The Insolvency and Bankruptcy Code, 2016” (\"IBC \", for short).</b></p><p><b>31.<span style=\"white-space:pre\">	</span>Insofar as the Transfer Rules 2016 are concerned, as adverted to by learned counsel appearing for the petitioners and the respondents, the said Rules provide for transfer which prima-facie is one which is automatic subject to the fulfillment of condition under the Rule, i.e. \'notice\' ought not to have been served on the respondent- Company.</b></p><p><b>32.<span style=\"white-space:pre\">	</span>While in the present case, notice having been served and the matter was pending for admission when the application invoking the fifth proviso under Section 434 of the Companies Act, 2013 has been filed, the manner of disposal of such application is to be done in terms of the fifth proviso.</b></p><p><b>33.<span style=\"white-space:pre\">	</span>A plain reading of the fifth proviso as extracted hereinabove would indicate that any party or parties to any proceedings may file an application for transfer and the court may by order transfer such proceedings to the Tribunal. However, what needs to be looked into is the interpretation placed by the Apex Court relating to the exercise of power under the proviso.</b></p><p><b>34.<span style=\"white-space:pre\">	</span>In all the cases relied upon by the respondent/applicant, as rightly pointed out by the petitioners the factual matrix reveals the existence of parallel proceedings i.e., the proceedings before the Company Court seeking for passing of winding up order and the proceedings initiated under the provisions of IBC. It needs to be kept in mind that the observations of Apex Court and the resultant orders must be read in the context of the factual matrix, i.e. existence of parallel proceedings.</b></p><p><b>36.<span style=\"white-space:pre\">	</span>Though learned counsel for the respondent has drawn attention to the observations of Apex Court to contend that the consequence of transfer in the pre-admission stage as per the rules would follow even post-issuance of notice, the reading of observations in the entirety in the same paragraph would also indicate that as </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">long as nothing irreversible is done which would warrant the Court staying its hands on transfer application made by the creditor or any party to the proceedings, the transfer petition is to be ordered.</b></p><p><b>37.<span style=\"white-space:pre\">	</span>The further observations of Apex Court that it is only where the winding up proceedings have reached a stage where it is irreversible making it impossible to set the clock back and in such an event, the Company Court must proceed with the winding up instead of transferring the proceedings to NCLT is to be noticed. The crucial observation that \"whether this stage is reached would depend upon the facts and circumstances of each case\" would clearly indicate that the power of transfer is indeed an exercise of judicial discretion, taking note of the riders which are indicated while considering the transfer applications which could be deciphered from a plain reading of para-22 of the decision extracted above.</b></p><p><b>38.<span style=\"white-space:pre\">	</span>The observation \"even post issue of notice and pre-admission of a winding up petition, the same result would ensue\" must be read in proper context.</b></p><p><b>43.<span style=\"white-space:pre\">	</span>It ought to be noted that in the present case, there are no parallel proceedings before the NCLT apart from the present proceedings for winding up.</b></p><p><b>44.<span style=\"white-space:pre\">	</span>Even in the absence of parallel proceedings, the exercise to transfer proceedings may involve taking note of other factors which may include the case made out by the Company demonstrating that if the matter is transferred to NCLT to be disposed off under the IBC, there would be a greater possibility of restructuring and revival of the Company. Apart from the stage of the proceedings before the Company Court, keeping in mind the observations of  the Apex Court, the admissibility of the claim pending before the Company Court upon transfer if the same is to be considered as a claim under the provisions of the IBC and there may be other factors that would inform exercise of judicial discretion which power by its very essence forbids an exhaustive enumeration.</b></p><p><b>45.<span style=\"white-space:pre\">	</span>The party seeking transfer of proceedings must make out the grounds for exercise of discretion and in that context, the contention of petitioner that no reasons need be assigned as long as power is available to be invoked as per the statutory provision requires to be rejected.</b></p><p><b>46.<span style=\"white-space:pre\">	</span>Having concluded that the power under the fifth proviso to Section 434 of Companies Act, 2013 involves exercise of judicial discretion, the party seeking such transfer must make out grounds. In the present case, no such grounds are forthcoming as regards the need for restructuring of the Company, if proceedings are transferred to NCLT.</b></p><p><b>47.<span style=\"white-space:pre\">	</span>As pointed out by Amicus Curiae, in case of transfer, Rule 5(1)2 of the Transfer Rules, 2016 and the proviso to Rule 5(1) would require that other information is to be furnished by the petitioner as may be required for admission of the petition under Rules 7, 8 or 9 of IBC. This needs to be kept in mind which if considered along with the observations at para-27 of Navin Chandra\'s case would establish that the claim in the winding up petition must be the one that could be considered under the IBC.</b></p><p><b>50.<span style=\"white-space:pre\">	</span>Accordingly, the Company Application Nos.167/2021 and 300/2020 are rejected. The proceedings in the main matter to continue. Costs to be quantified.</b></p>', '736522755b11f27c0d27a914fe1d200b.jpg', 'c2f7593ac86f4fd5c5bde6dc3dfc9b65.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-23', 1, '', '', '2021-10-24 00:52:35', '2021-10-24 00:59:04'),
(1106, '6VCRTV6ne1v3uWCX5BnS6udWv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sufficient cause for setting aside abatement of suit and conodnation of delay. Liberal interpretation should be given. Supreme Court. ', '<p><b>Ram Nath Sao and others vs Gobardhan Sao and others&nbsp;<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Civil Appeal 1704 of 2002 decided on 27 February 2002<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Reported in (2002) 3 SCC 195&nbsp;</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12. Thus it becomes plain that the expression “sufficient cause” within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute “sufficient cause” or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.</b><br></p><p><b><br></b></p><p><br></p>', '3e55c6caa06b343f0c6e1b6511fe5fc9.JPG', 'f08fab0b9a7f7d220271c0b32866480b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-25', 1, '', '', '2021-10-25 21:27:56', '2021-10-25 21:27:56'),
(1107, 'YcnhMaQFG6CVLFKHCK8Zab4Kh', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Courts are under an obligation to follow religious text and old practices in religious disputes so long as they do not violate constitutional rights of an individual\'\'. Karnataka High Court while approving Bala Sanyasa ', '<p><b>P. Lathavya Acharya and others vs State of Karnataka and others.&nbsp;<br>Writ Petition 8926 of 2021 decided on 29 September 2021<br>Justice Satish Chandra Sharma Acting Chief Justice and Justice Sachin Shankar Magadum<br>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/415366/1/WP8926-21-29-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/415366/1/WP8926-21-29-09-2021.pdf</a></b></p><p><b>The petitioners before this Court have filed the present petition by way of a Public Interest&nbsp; Litigation stating that&nbsp; they are the members of Sri Shiroor&nbsp; Mutt Bhaktha Samithi,&nbsp; &nbsp;a Trust duly registered under the provisions of the Indian Trusts Act, 1882. It has been stated that the Trust has been established for the purposes of carrying out the religious, cultural and other activities alongside managing the&nbsp; properties of Sri Shiroor Mutt, which is one of&nbsp; the&nbsp; Ashta Mutts of Udupi responsible for the activities and management of Shri Krishna Temple at Udupi. The petitioners have stated that they are associated with the said Mutt for generations and their ancestors were also associated with Sri&nbsp; Shiroor Mutt.</b></p><p><b>7. The petitioners have raised a ground that the minor is not capable of exercising free consent and is not competent to contract in terms of Section 11 of the Indian Contract Act, 1872 and even under the scheme of Guardian and Wards Act, 1890 and as per the provisions of the Hindu Minority and Guardianship Act, 1956, as long as the&nbsp; child does not attain 18 years of age, the natural guardians, who are the parents would continue to be the legal guardians of the minor child unless ordered otherwise.</b></p><p><b>11. It has been stated and argued before this Court that conferment of Sanyasa on a minor is violative of all the policies issued on the subject. It has&nbsp; been&nbsp; further stated&nbsp; that the petitioners are the persons owing allegiance to Sri Shiroor Mutt and they are deeply interested in ensuring that the religious practices attached are practiced in the same manner in which they are being performed right from the inception of the Mutt. It has been stated that in respect&nbsp; of&nbsp; the fundamental rights under Articles 25 and 26 of the Constitution of India as to the religious practices attached to the religious denomination, Sri Shiroor Mutt requires to be protected and as respondent No.6 has violated the constitutional and fundamental rights guaranteed under Articles 25 and 26, the only remedy available is to approach the Constitutional Mechanism provided under Article 226 and 32 of the Constitution of India.</b></p><p><b>14. Reliance has been placed upon a judgment delivered in the case of Shalini Shyam Shetty and Anr., v. Rajendra Shankar Patil, reported in (2011) 1 CTC 854. Reliance has also been placed upon a judgment delivered in the case of Sheela Barse v. Union of India, reported in&nbsp; &nbsp;AIR 1988 SC 2211 in respect of the issue of maintainability of the writ petition. Reliance has also been placed upon a judgment delivered in the case of C.K.Rajan v. State of Kerala and others, reported in AIR 1994 Kerala 179; A.A.Gopalakrishnan v. Cochin Devaswom Board and others, reported in (2007) 7 SCC 482; and State of Uttaranchal v. Balwant Singh Chaufal and others, reported in (2010) 3 SCC 402.</b></p><p><b>100.<span style=\"white-space:pre\">	</span>Respondents No.5 and 6 have placed on record before this Court the incontrovertible fact that the earlier pontiffs of Shri Shirooru Mutt, namely Shri Shri Lakshmindra Theertha, Shri Shri Lakshmimanojna Theertha and Shri Shri Lakshmivara Theertha, hailed from the same blood family, who are recognized to be the disciples of Sri Sode Vadhiraja Mutt. Moreover, the above mentioned three of them were appointed as the Peethadhipathi of Shirooru Mutt, one after the other, by the then Dwandwa Matadhipati, Shri Shri Vishwothama Theertha and the ashrama guru of the present pontiff of Shri Sode Vadhiraja Mutt, under the concept of the Dwandwa Mutt, which is prevailing in the customs of the Shri Krishna Mutt since the time of Shriman Madhwacharya.</b></p><p><b>101.<span style=\"white-space:pre\">	</span>The facts on record also reveal that Shriman Madhwacharya having established the above mentioned 8 Mutts and the Krishna Mutt, had ordained that each of the disciples appointed as Peethadhipathis of each of the 8 Mutts should take charge of the affairs of Shri Krishna Mutt from&nbsp; the other, who was in charge of such affairs of the Mutt when his turn would come to an end and preside over the affairs of Sri Krishna Mutt for a period of 2 months and function as “Paryaya Peethadhipathi of Shri Krishna Mutt”.&nbsp; The period of 2 months of such charge is called “Paryaya”, the duration of which came to be extended later to 2 years by Shri. Vadiraja Teertha of Sri Sode Mutt during his term of Peethadhipathi of that Mutt. The end of each such term is marked by a Festival, which is celebrated on a grand scale and is attended by lakhs of people.</b></p><p><b>103.<span style=\"white-space:pre\">	</span>The facts on record further reveal that during the past over 800 years the aforesaid custom, tradition, procedure, system, religious and spiritual activities of Sri. Krishna Mutt and Ashta Mutts are being carried out by their respective Peethadhipathis, as their trustees strictly as ordained by Shriman Madhwacharya and in accordance with other religious scriptures, without any&nbsp; hindrance, obstructions, interruptions, threat, coercion, duress, enticement or inducement from any quarter whatsoever and to the utmost satisfaction of the followers of the 8 Mutts and other devotes. Suffice it to say that the place or premises, where the great saint Shriman Madhwacharya lived with his 8 disciples in the initial period and carried out the worship of Lord Shri Krishna was called and continues to be called and known as Sri Krishna Mutt and is attached to the Ashta Mutts established by Shriman Madhwacharya, each one of which is presided over by his disciples as Peethadhipathis. It is respectfully submitted that the very aim, object and purpose of establishing the Ashta Mutts and grouping them into 4&nbsp; pairs (Dwandwa Mutts), as detailed herein was to have cordiality, camaraderie, among the Ashta Peethadhipathis so that any complicated circumstances or situations which may arise in any of the Ashta Mutts could be dealt with and solved by the Peethadhipathis of Ashta Mutts and to ensure proper worship of Lord Shri Krishna and other religious ceremonies&nbsp; or activities connected therewith perpetually and without any interruption or obstruction from any quarter whatsoever.&nbsp; It&nbsp; is noteworthy and necessary to point out that all the pontiffs of Ashta Mutts from their inceptions have&nbsp; had Balasanyasis&nbsp; as Peethadhipathis, who have efficiently and successfully managed and administered the Sri Krishna Mutt and their respective Ashta Mutts, for over 800 years. Shriman Madhwacharya himself was a Balasanyasi and was initiated into Sanyasa at the age of 11 years by his Teacher Shri AchyutaPrekshacharya.</b></p><p><b>110.<span style=\"white-space:pre\">	</span>Seven judges of the Hon\'ble Supreme Court in the case of Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamir of Shirur Mutt, reported in AIR 1954 SC 282, has declared that the followers of Madhva philosophy constitute&nbsp; a religious denomination and the followers of Sri Shiroor Mutt form a sect of religious denomination.&nbsp;</b></p><p><b>114.<span style=\"white-space:pre\">	</span>As already stated earlier, the followers&nbsp; of Madhva philosophy constitute a religious denomination and the followers of Sri Shiroor Mutt form a sect of religious denomination. As Article 26 of the Constitution of India contemplates not merely a religious denomination but also a sect thereof, the Mutt or the spiritual fraternity represented by it legitimately comes within the purview of Article 26 of the Constitution of India. Hence, the system of Dwandwa Mutt being an essential religious practice, is protected under Article 26 of the Constitution of India.</b></p><p><b>115.<span style=\"white-space:pre\">	</span>The framers of the Constitution were aware of the rich history and heritage of this country being a secular polity with diverse religions and faiths, which were protected within the fold of Articles 25 and 26. State interference was not permissible, except as provided by Article 25(2)(b) of&nbsp; the Constitution, where the State may make law providing&nbsp; for social welfare and reform. Article 26 of the Constitution guarantees the freedom to every religious denomination, or sect thereof, the right to establish and maintain institutions for religious or charitable purposes, and to manage their&nbsp; own affairs in matters of religion. The right conferred under Article 26 is subject to public order, morality and health, and not to any other provisions in Part III of the Constitution. A religious denomination or organization enjoys complete autonomy in matters of deciding what rites and ceremonies are essential according to the tenets of that religion. The&nbsp; only restriction imposed is on the exercise of the right being&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">subject to public order, morality and health under Article 26. Therefore, respondent No.6 is certainly in respect of&nbsp; religious denomination entitled under Article 26 of the Constitution of India to appoint respondent No.7 as Peetadhipathi.</b></p><p><b>118.<span style=\"white-space:pre\">	</span>Before concluding the matter, the essential practice of particular religion test needs to be applied. The ‘essential practices’ test was formulated in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. (Supra) by the Supreme Court. Before articulating the test, the Supreme Court drew&nbsp; on the words “practice of religion” in Article&nbsp; 25(1) to hold&nbsp; that the Constitution protects not only the freedom of&nbsp; religious belief, but also acts done in pursuance of a religion. In doing so, it relied on an extract from the decision of&nbsp;</b></p><p><b>119.<span style=\"white-space:pre\">	</span>The ‘essential practices test’ was reiterated by the Supreme Court in Ratilal Panachand Gandhi v. The State of Bombay &amp; Ors. reported in (1954) SCR&nbsp; 1055:AIR 1954 SC 388, where the narrow definition of “religion” given by the Bombay High Court was discarded. It was held that all religious practices or performances of acts in pursuance of religious beliefs were as much a part of religion, as faith or belief in particular doctrines.&nbsp;</b></p><p><b>129.<span style=\"white-space:pre\">	</span>In other religions also like Buddhism, children of tender age have become monks and there is no impracticable rule as to the age on which sanyasa deeksha can be given.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Also, there is no statutory much less constitutional bar on a person of less than 18 years being initiated into sanyasa and the religious texts, which have been quoted&nbsp; in&nbsp; the arguments of learned Senior Counsel Sri Nagananda, Amicus Curiae, makes it very clear that the religion permits a person to become sanyasi before attaining the age of 18 years and there is no such bar and as per the Dwandwa philosophy respondent No.6 was certainly empowered to keeping in view the essential religious practices to appoint respondent No.7&nbsp; as Peetadhipathi of Sri Shiroor Mutt.</b></p><p><b>130.<span style=\"white-space:pre\">	</span>In the considered opinion of this Court, the&nbsp; Courts are certainly not at all meant to write the religious text, however, they are under an obligation to follow the religious text in the matter of cases dealing with religious dispute and to follow the old practices which are prevalent in religion so long as they do not violate constitutional rights of an individual.</b></p><p><b>132.<span style=\"white-space:pre\">	</span>The petitioners have not been able to establish violation of any statutory provisions nor violation of any constitutional rights guaranteed to respondent No.7. The essential religious practice is continuing for the last&nbsp; 800&nbsp; years and the appointment of Pontiff is a practice, which is in existence for the last 800 years keeping in view the philosophy and the teachings of Shriman Madhwacharya.</b></p><p><b>134.<span style=\"white-space:pre\">	</span>In the light of the aforesaid judgment, in which the Division Bench has declined to interfere in an essential religious practice, which was continuing since time immemorial, the question of interference of this Court in the essential religious practice of Sri Shiroor Mutt, which is continuing for the last 800 years, does&nbsp; not&nbsp; arise.&nbsp; Resultantly, the writ petition is dismissed.</b></p>', '0dc62a8958caf95ca6682997b4bbecfb.jpg', '9f5e8f9ca47d4903a9191550b69e12ca.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-25', 1, '', '', '2021-10-26 01:46:29', '2021-10-26 01:46:29'),
(1108, 'R7LLnHi5x64NbU78aUyE9DyDl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Foreign Exchange Management Act, 1999. Pendency of appeal against adjudicatory order is NOT a bar for compounding the contraventions. Karnataka High Court. ', '<p><b>Joyce Lynn Peters vs Reserve Bank of India&nbsp;<br>Writ Petition 26425 of 2017 decided on 21 October 2021<br>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/415406/1/WP26425-17-21-10-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/415406/1/WP26425-17-21-10-2021.pdf</a></b></p><p><b>Petitioner is knocking at the doors of Writ Court for assailing the Letter dated 17.6.2016 and Communication&nbsp; dated 24.10.2016 made by the first respondent-RBI respectively at Annexures-K &amp; P, whereby his application for compounding of the contravention of provisions of the Foreign Exchange Management Act, 1999 (hereinafter \'1999 Act\') and the Rules made thereunder, has been negatived quoting Rule&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11 of Foreign Exchange Compounding Proceedings Rules, 2000 (hereafter Compounding Rules’).</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ii) Petitioner had filed the compounding application although with a bit delay, is true; as already mentioned above, this application came to be rejected by the Respondent Nos. 1 &amp; 2 only on the ground of pendency of his appeal and not on the ground of delayed filing; the impugned letter and the communication are statutory orders, their form notwithstanding; the validity of orders made by the statutory authorities has to be adjudged on the reasons assigned in the&nbsp; very order itself and that, such reasons cannot be supplied de hors vide MOHINDER SINGH GILL Vs. CHIEF ELECTION COMMISSIONER, AIR 1978 SC 851; therefore, the vehement contention of learned CGC cannot be countenanced.</b><br></p><p><b>iii) The answering respondents have rejected petitioner\'s application on the sole ground that his appeal against the adjudicatory order was pending and that, Rule 11 of the Compounding Rules bars the invocation of Section 15(1) of the 1999 Act providing for compounding; the text of Rule 11 is as under:</b></p><p><b><i>\" No contravention shall be compounded if an appeal has been filed under Section 17 or Section 19 of the Act.\"</i></b></p><p><b>This is a piece of subordinate legislation; it has been a settled position of law that a delegate cannot transcend the&nbsp; delegation of power; in other words, the rule making authority cannot promulgate a rule which travels beyond the scope of delegation.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dictionary clause of the Act, they need to be assigned contextual meaning; \'proceeding\' means an adjudicatory proceeding which is triggered pursuant to the complaint followed by the Show Cause Notice; the term \'further proceeding\' shall mean the appellate proceeding in which the order made in the adjudicatory proceeding is put in challenge; the net effect of compounding u/s 15(1) is all pervasive abatement of any proceeding, adjudicatory or appellate, involving the contravention of section 13 of the Act; an argument to the contrary cannot be sustained without manhandling the text of sub-sections (1) &amp; (2) of section 15; therefore, the answering respondents could not have rejected petitioner\'s application u/s 15 banking upon the&nbsp; text of Rule 11 of the Compounding Rules.</b></p><p><b>(vi) The above apart there is yet another reason: admittedly, as on the date the subject application was filed, the petitioner had not yet filed the appeal; he filed one much subsequent to filing of this application; one cannot ignore that there is a limitation period prescribed by law for filing of appeals; it is a matter of common knowledge that the request for condoning delay is ordinarily treated in discretion; at times this discretion is like Chancellor’s Foot and foot is not of ‘FPS System’ wherein it is always 12 inches; Chancellor’s Foot can be anything between 9 inches to 13 inches depending upon who the Chancellor is; therefore an anxious litigant ordinarily does not risk the prospects of his appeal; added, even the application for compounding is also a matter of discretion; it may so happen that he may lose the application and he may be without remedy of appeal too, if such rejection takes place after long; that being the position, the subsequent filing of appeal cannot be construed as a bar under Rule 11 for consideration of compounding application on its intrinsic merits, u/s.15(1) of 1999 Act; if such a&nbsp; purposive construction would infuse sense of justice in the said Rule, assuming its validity.</b></p><p><b>(vii)<span style=\"white-space:pre\">	</span>The vehement contention of learned Sr. Advocate Mr.R.V.S.Naik appearing for the respondent Nos.1 &amp; 2 that Rule 11 having not been put in challenge, it was not open to his clients to disobey the mandate of this Rule, may arguably be attractive but unprofitable; however, while deciding the rights of citizens, Court has to ascertain the&nbsp; correct position&nbsp; of law by looking to the text of legislation and of the sub-ordinate legislation, if any; it has long been settled that a delegated legislation cannot curtail the scope of the parent legislation; the pendency of adjudicatory proceeding or the appellate proceeding is not indicated as a bar to the invoking of the compounding provision, namely section 15 of the Act which in a sense enacts an amnesty scheme; ordinarily, in fiscal legislations, the provisions enacting such schemes are construed with a \'pragmatic leniency\', subject to all just exceptions vide UNION OF INDIA vs. NITDIP TEXTILE PROCESSERS PVT. LTD., (2012) 1 SCC 226; this aspect has&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not animated the impugned orders and therefore they are infected with legal infirmity.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '1f0578b0e3247bf0133f55996afadee3.jpg', 'dcc839482a81d27916f6cbe8fe6eb068.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-26', 1, '', '', '2021-10-26 17:57:14', '2021-10-26 17:57:14'),
(1109, 'lpjbI9QFDzbjsxZJWHqvDnfaF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Public authority cannot lease out its properties unilaterally and only partially without conducting public auction providing opportunity for all to participate.  Karnataka High Court. ', '<p><b>Arun Kumar and Others vs State of Karnataka and others. <br>Writ Petition 18567 of 2021 and connected matters decided on 25 October 2021<br>Judgment Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/415888/1/WP18567-21-25-10-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/415888/1/WP18567-21-25-10-2021.pdf</a></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Petitioners in this batch of petitions, call in question an auction notification issued by the 3rd respondent/Arkalgud Town Panchayat, Arkalgud Town (hereinafter referred to as ‘the Panchayat’ for short) seeking to auction 61 shops out  of  112  shops which are under its control. The notification of auction is issued on 20th September, 2021 seeking  to  auction  lease  of  shops on 28th, 29th and 30th October, 2021. A consequential direction is also sought by issuance of a writ in the nature of mandamus to consider their representations submitted for extension of lease up to 2024.</b><br></p><p><b>13....Therefore, on an analysis of the aforesaid provisions of the Act, the judgment of the Division Bench and the order passed by the Co- Ordinate Bench (supra), what can be unmistakably gathered is that public properties coming under the precincts of the Panchayat controlled by them, shall be let out on lease or rent  only by way of public auction.  Both  the  aforesaid  judgments, one rendered by the Law Lords and the other by the Co-ordinate Bench, are on consideration of Section 72 and its purport.</b></p><p><b>14..Therefore, the right of the petitioners to continue in the shops is absolutely bleak and they cannot, on any  pretext,  continue  in  the shops by paying meagre rent, as is submitted.  The  occupiers of other 51 shops also have not derived any right to continue in those shops on the strength of an illegal extension of lease again by paying a meagre rent. This is also as submitted. What is at stake by the act of the Panchayat is a huge loss of revenue to the Panchayat itself. When the law was clear way back in the year 1992 that the properties of Municipalities should be parted by  way of public auction and several orders having been passed by this  Court that all those properties should be  leased out by way  of public auction, the piecemeal  auction  by  the  Panchayat cannot be accepted.</b></p><p><b>15. These are the consistent orders being passed wherever public properties are involved for leasing out, holding that they have to be auctioned.  The question of partial auction defeats  the very Act, Rules, judgments of  this  Court  and  the Government Orders concerning the Panchayat itself which was issued on 16th October 2015, following  a  Government  order  dated 14th August 2015. The Division Bench observes that any extension of lease or any rent that is chargeable would be contrary to the aforesaid Government order. Therefore, the findings in the writ appeal are binding upon the Panchayat.</b></p><p><b>16. There are number of Municipalities, Town Panchayats and Corporations; they own buildings, shops etc. located in their precincts and controlled by them. There should be uniformity in grant of lease. Such uniformity can  come about only  when there is transparency in procedure; transparency in procedure  can come about only when the properties are put to public auction  and every citizen is permitted to participate in the auction. The provisions of the Act and the Rules have to be so construed so      as to keep the individuals or a class  interest  subordinate  to  larger public interest. Public bodies have a right to put the properties belonging to them in auction and augment their  income and deal with it in a manner more  advantageous  to  them.   Any direction not to hold auction or to renew the lease   will lead to monopoly.  If such right is allowed it would amount   to nudging the other contenders. A few people cannot hold the entire Town Municipal Council to ransom by getting into properties and dictating their terms. Therefore, it is always necessary and desirable that such rights are  auctioned  out  by way of public auction.</b></p><p><b>17. It is not in dispute that the earlier extension of lease in favour 51 occupiers of shops was not by way of public auction. It was a unilateral act on the part of the Panchayat to which the public at large did not have opportunity to participate. It is, therefore, contrary to law as laid down by the Division Bench (supra) and violative of Article 14 of the Constitution of India.  The situation that has now emerged in the subject lis is that, if   the impugned auction is not interfered with , it would amount to upholding partial auction and permitting perpetuation of illegality, which would be contrary to the Act and the Rules. It would also amount to validating the illegal action of  the Council in entering/renewing the lease of few of the occupiers without auction of the shops which came about in the year 2012.</b></p><p><b>18. To bring  about such uniformity  in the  present process, I deem it appropriate to direct the Panchayat to conduct a public auction of all the properties in the precincts of the Panchayat controlled by it and not partial auction as is now sought to be  held. In the auction all the present petitioners and the occupiers of shops who are not parties to the  lease  would  become entitled to participate along with general public.</b></p><p><b>19. Therefore, the Panchayat shall now issue an auction notification to auction all the 112 shops that are with them and permit participation of all the petitioners and the occupiers of 51 shops in the auction proceedings along with the general public. The shops shall be allotted pursuant to the result of the  auction  in terms of Government Order dated 19th July 2019.</b></p><p><b><br></b></p><p><br></p>', '722a78f331e99183a60cc1beb98d7c8e.jpg', 'ead64220dc667098b263d54eac01f821.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-26', 1, '', '', '2021-10-27 00:02:27', '2021-10-27 00:03:19'),
(1110, 'EfqRLzVBEzlT6cbGgFBcxB9RG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Every saint had a past and every sinner has a future. Humanistic approach needs to be adopted quo the convict in the matter of grant of parole and furlough\'\'. Karnataka High Court ', '<p><b>Suma vs State of Karnataka and others <br>Writ Petition 18978 of 2021 decided on 26 October 2021<br>Judgment Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/415893/1/WP18978-21-26-10-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/415893/1/WP18978-21-26-10-2021.pdf</a></b></p><p><b>Petitioner a convict for the offence of murders has  been undergoing prison sentence; he has made a representation (‘memorandum’) dated 12.10.2021 to the respondent nos. 2 & 3 seeking his release on parole for a period of two months, the marriage of his daughter  scheduled to be performed on 7th & 8th of November, 2021;  the said representation having not being considered, he is knocking at the doors of writ court for its expeditious disposal.</b></p><p><b>Petitioner in all fairness has disclosed all the material particulars of the cases in which he has been convicted & sentenced; presently he has been serving sentence in the gaol for purging the guilt since  last  more than two decades ie., since 02.03.1999, of course with some parole/furlough; he had violated some parole condition earlier, may be true; one cannot forget that every saint had a past and every sinner has a future; a person is convicted and put behind the bars, does not render him a destitute of  all liberty & dignity; humanistic approach needs to be  adopted qua the convicts; a convict has to keep in contact with the civil society although not very regularly, so that his roots there, do not dry up when he languishes here;  otherwise when he returns from the prison after completing the term, he will be a total stranger and life  would  prove hard to him.</b></p><p><b>(b) The provisions of parole/furlough are structured on humanistic grounds for the reprieve of those lodged in gaols for long; the main purpose of releasing a serving  convict on parole is to afford to him an opportunity to solve his personal & family problems and to enable him to  maintain his links with the civil society; there may be cases   of health grounds too; the marriage of petitioner’s younger daughter Chi.S.Monish is scheduled  to  be performed on 7th  & 8th day of November, 2021 at Bastipura,  Kollegal;  petitioner has produced the Marriage Invitation Card at Annexure-L; ordinarily every Hindu Marriage involves  certain rituals such as ‘Vivaah Homa’ with the participation  of the parents; even otherwise when a young daughter is getting married, the presence of her father, mother having died recently, is desirable;</b></p><p><b>(c) It was Oscar Wilde in a stanza of his poem “The Ballard of Reading Gaol” laments about the prison life  as under:</b></p><p><i><b>“ This too I know …. And wise it were If each could know  the  same  … That every prison that men build </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Is built with bricks of shame, </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">And bound with bars lest Christ should see How men their brothers maim”.</b></i></p><p><b>“Compassion wherever possible and cruelty only where inevitable, is the art of  correctional  confinement”, said the Apex Court in CHARLES SOBRAJ VS THE SUPTD., CENTRAL JAIL, TIHAR, 1978 AIR 1514; after all, </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the  standard  of  civilization  is  measured  by  looking to  how </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the State and the Society treat the criminals. The sublime feelings of the spouse & children permeate the prison walls and reach the convict, however strong & unkindly they are built; therefore, this court has to facilitate the presence & participation of the petitioner in the ensuing marriage ceremony; an otherwise stand of the court, runs the risk of being branded as inhuman by the right thinking section of  the society, to say the least.</b></p><p><b>(d)<span style=\"white-space:pre\">	</span>The vehement contention of learned State Counsel that the petitioner has some blameworthy track record and he may flee away from the clutches  of  law,  do  not much impress this court; it is not that, petitioner is awarded a capital punishment and therefore he may take a chance to run away from the gallows; What George A. Ellis in his book “Inside Folsom Prison” said about the nature of convicts; that is quoted by the Apex  Court  in  MARU RAM vs. UNION OF INDIA, (1981) 1 SCR 1196 very pertinently:</b></p><p><b>“Contrary to popular opinion, all convicts are not rock-hard individuals lacking sufficient emotional balance. They are people, with fears and aspirations like everyone else.  Generally, they don’t want to fight with or kill their neighbor any more than the man on the street. They want to live in peace and return to  it their  loved ones  as soon as possible. They are not  a  different breed of human being or a distinct type of </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">mentality. They are persons who have made mistakes. This point is made not to  solicit pity  but to bring attention to the fact that any individual could be caught in a similar web and find himself inside a pit such as Folsom Prison”.</b></p><p><b>Suitable & stringent conditions can be stipulated by the prison authorities themselves; that would assuage this apprehension.</b></p><p><b>In the above circumstances,  this  writ  petition succeeds in part; the respondents are directed to consider petitioner’s representation and release him on parole from the forenoon of 01.11.2021 till the afternoon  of  15.11.2021; the respondents shall stipulate strict conditions  as  are usually stipulated to ensure the return of petitioner to the  gaol and that he shall not commit any other offence.</b></p><p><b><br></b></p><p><br></p>', '34a8ebc168103b924f7a1159ae1d0f73.jpg', 'c89885ce8784f400241f77a1b24299d9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-26', 1, '', '', '2021-10-27 01:24:40', '2021-10-27 01:25:33'),
(1111, 'gCFLqq569xokn7ljJHE4ug7Zf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Time has arrived for the Government to regulate constructions undertaken in the panchayat areas as well.\'\' Karnataka High Court directs Government to take steps to stall chaotic constructions in Panchayat areas. ', '<p><b>Jyothi vs The State of Karnataka&nbsp;<br>Writ Petition 10519 of 2021 decided on 22 October 2021<br>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/415889/1/WP10519-21-22-10-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/415889/1/WP10519-21-22-10-2021.pdf</a></b></p><p><b>The petitioner who claims to&nbsp; be&nbsp; the&nbsp; absolute owner of house properties bearing Nos. 542/1&nbsp; and 542/1A situated in Maddur is before&nbsp; this&nbsp; Court calling&nbsp; in question the order dated 3.06.2021 passed in G.P.Appeal No.3/2021-22 by the 2nd respondent/Executive Officer of the Taluk Panchayat, Maddur vacating the interim order that was granted to&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">stall further construction undertaken by the 4th respondent.</b></p><p><b>7. The learned counsel appearing for the petitioner would contend that the sanction of plan in favour of the 4th respondent or grant of a building licence&nbsp; on the face&nbsp; of it is contrary to law. The learned counsel&nbsp; would&nbsp; submit that the law would mean Rule 6 of the Rules which prohibits any such building to come up in the entire sital area.</b></p><p><b>15. As stated hereinabove, the Bye-laws have come into force on 8-05-2015. There are various Gram Panchayats, Taluk Panchayats and Zilla Panchayats in the State of Karnataka. The Panchayats are obliged in law to adopt those Bye-laws and bring the constructions that are undertaken or to be undertaken in the precincts of those areas within the parameters stipulated in the Bye-laws. If the Panchayats have not adopted the same, despite close to 7 years of coming into effect, they have done it at their own peril.</b></p><p><b>16. It is in public domain that there are mushrooming of construction activities in all the areas coming under the Gram Panchayats, Taluk Panchayats and Zilla Panchayats. The violation of known norms of law in construction is not limited to areas in the Corporation. It has percolated into the areas of Panchayats. Therefore, time has arrived for the Government to regulate the constructions undertaken in the panchayat areas as well. The Government has notified the Bye-laws. The Bye-laws cannot remain on paper and the constructions in the Panchayat areas can go on unabated violating every known norm of law. Therefore, if any of the Panchayats in the State of Karnataka have not adopted the Bye-laws in terms of sub-section (2) of Section 316 of the Act it is for the Government now to forthwith act and issue such notification under sub-section (4) of Section 316, failing which the State would be permitting the constructions within the Panchayat area to go on unbridled without&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">any regulations. It is trite law that there cannot be a vacuum in the regulations in any walk of a civil life&nbsp; in&nbsp; the society. We are In a society governed&nbsp; by rule of&nbsp; law, it cannot be the other way round. Therefore, it is imperative for the State to now act and issue such notification in terms of sub-section (4) of Section 316 of the Act to all those Panchayats who have not yet opened their pen to adopt the Bye-laws,&nbsp; making&nbsp; it&nbsp; mandatory for the Bye-laws to be a regulatory mechanism for construction to be undertaken by its citizens who come within the Panchayats.</b></p><p><b>The State Government shall take appropriate steps in compliance with sub- section (4) of Section 316 of the Act for issuance of a Notification making the Bye- laws applicable to all the Panchayats&nbsp; in&nbsp; the State which have not adopted&nbsp; the&nbsp; same as on date within a reasonable timeto stall chaotic constructions&nbsp; coming&nbsp; up&nbsp; in Panchayat areas.</b><br></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'dd8de5a7df2ef79917249e5e1facca4e.jpg', '33f1ea8ffcf6cd0497ee283760f42594.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-26', 1, '', '', '2021-10-27 01:48:08', '2021-10-27 01:48:08');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1112, 'tv6qBQFhvOmz7tDXK2M9OGfsJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Trademark. Establishing proprietary right over trademark is the first test in a suit based on infringement or passing off without which the other question regarding tangible damage cannot be gone into. Karnataka High Court.  ', '<p><b>R. Vivekananda vs Raghu. H<br>Regular First Appeal 486 of 2015 decided on 8 October 2021<br>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/415636/1/RFA486-15-08-10-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/415636/1/RFA486-15-08-10-2021.pdf</a></b></p><p><b>Trademarks already existed in the ancient world. Even at times when people either prepared what they needed themselves or, more usually, acquired it from local craftsmen, there were already creative entrepreneurs who marketed their goods beyond their localities and&nbsp; sometimes over considerable distances. With the&nbsp; flourishing trade of the Middle Ages, the use of signs to distinguish the goods of merchants and manufacturers likewise expanded several hundred years ago. Their economic importance was still limited, however, Trademarks started to play an important role with industrialization, and they have since become a key factor in the modern world of international trade and market- oriented economies.</b></p><p><b>The plaintiff in the instant case being a partner of the partnership firm, renewed the trade mark in the name of the partnership firm when the said partnership firm was dissolved in the year 2005. Subsequent to the dissolution&nbsp; of the partnership firm, the plaintiff further renewed the same in the name of the partnership firm, while using the trademark in his separate proprietorship. Therefore, the plaintiff being neither a registered owner/ proprietor of the trademark nor an assignee of the said trademark, cannot claim for infringement of the said trade mark as it is a proprietary concern of the partnership firm and not the plaintiff’s separate proprietorship.</b></p><p><b>Passing off means that the defendant, by making a false representation, sells goods, with the intention to deceive the purchaser, and, the plaintiff believes that the goods being sold by are of the defendant.</b></p><p><b>The protection of commercial goodwill is the&nbsp; objective of the tort of passing off. It ensures that exploitation of the people’s business reputation does not take place. “No man can have any right to present his&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">goods as the goods of someone else” is the underlying philosophy of the tort of passing off.</b></p><p><b>In countries like UK, New Zealand and Australia where common law is practiced, the tort of passing off is a common law tort that is used for the enforcement of unregistered trademark rights. A trader’s goodwill is protected by the tort of passing off action from misrepresentation. It not only prevents misrepresentation by a trader of his goods or the services being provided but also holds out some connection or association with another when it is false.</b></p><p><b>Actionable under common law, the law of passing off in India is mainly to protect the goodwill that is attached to unregistered trademarks. One should not get benefit from the labour of another person is founded in the basic principle of law.</b></p><p><b>The law of passing off is based on the principle that unfair competition is calculated to destroy honest business&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and should not be allowed. The object of the law is to restrain commercial piracy. The law of passing off is designed to protect traders against that form of unfair competition which consists in acquiring for oneself, by means of false and misleading devices, the benefit of the reputation already achieved by a rival trader.</b></p><p><b>Passing off through deception, was a kind of unfair trade or actionable unfair trade through the means of&nbsp; which a person obtains economic benefit of the established reputation by another person. And thus, uses in a&nbsp; particular business or trade to be benefited by it. Such action is regarded as an action for deceit.</b></p><p><b>To make one liable for the tort of passing off, the plaintiff must prove the following-</b></p><p><b>I. His goods were known to the public by some mark, distinctive name, appearance, get up, or badge.</b></p><p><b>II. The defendant made a spoken or written representation by the conduct of others or by word of mouth.</b></p><p><b>III. The use or initiation of the name by the defendant misleads the public and made them believe&nbsp; that the goods by the defendant were&nbsp; of the plaintiff.</b></p><p><b>IV. In the ordinary course of business, the defendant’s conduct is likely to mislead or deceive the public at least in case of unwary or incautious, if not the intelligent or careful purchaser.</b></p><p><b>The essential characteristics of a passing off action&nbsp; were stated in the words of Lord Diplock and Lord Fraser in ERVEN WARNIK B.V V. J.TOWNED &amp; SONS (HULL) LTD&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reported in (1979) 2 All ER 927; wherein five essential characteristics must be present in order to create a&nbsp; valid cause of action for passing off thus:</b></p><p><b>(1) misrepresentation, (2) made by a person in the course of trade, (3) to prospective&nbsp; customers of his or ultimate consumers of goods or services supplied by him, (4) which is calculated to injure the business or goodwill of another trader (in the sense that this is a reasonably foreseeable consequence and, (5) which causes actual damage to a business or goodwill of the trader by whom&nbsp; the action is brought or (in a quia timet action) will probably do so.</b></p><p><b>The Classical Trinity-</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>“The law of passing off can be summarized in one short general proposition – no man may pass off his&nbsp; goods&nbsp; as those of another. More specifically, it may be expressed in terms of the elements which the plaintiff in such action has to prove in order to succeed.\"</i></b></p><p><b>Goodwill:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The action of passing off would lie where a real possibility of the damage to goodwill to trading or a business activity takes place. The plaintiff thus needs to establish goodwill in the goods or services in his business with which&nbsp; the public or the trade associated with the defendant’s activities. It need not be established in the minds of each and every member of the relevant public but must be in a significant section of it.</b></p><p><b>Further in BRESTIAN V. TRY reported in (1958) RPC 161; Jenkins L.J while referring to an action of&nbsp; passing off observed: <i>“In an action such as this&nbsp; the&nbsp; plaintiff in order to succeed must show first he has a proprietary interest in the name… and, secondly, that the adoption of name by the Defendant brings about a tangible risk of damage whether in the form of diversion of customers or confusion of the Plaintiff’s and Defendant’s businesses or both. To that one must add that confusion in itself is held to import a sufficient risk or damage to maintain the action.”</i></b></p><p><b>The plaintiff in the present case&nbsp; has&nbsp; although pleaded goodwill and reputation in the market under the trade mark AGROPLAST, but the said reputation claimed by the plaintiff is that of the partnership firm,&nbsp; which from its commencement in the year 1986 has been conducting business under the name AGROPLAST and over the years has gained goodwill and reputation as claimed by the plaintiff. The plaintiff operating under a separate proprietorship cannot claim the goodwill and reputation of the partnership firm to be his own under the said proprietorship. Hence, fails to establish the very first element of passing off.</b></p><p><b>Accordingly, the appeal is dismissed.</b></p><p><br></p>', '7f7c343e53eba45a71ca179e959e1c5e.jpg', 'f658e949ce8efe23c8f04d508f94cd2b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-26', 1, '', '', '2021-10-27 02:56:51', '2021-10-27 02:56:51'),
(1113, 'pY9wMJaQQpGb95IzaV8cKwej5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SC/ST (Prevention  of  Atrocities) Act. Property dispute can NOT be converted into a criminal case under Section 3(1)(f) and (g) of the Act. Karnataka High Court.', '<p><b>Lokanath vs State of Karnataka and another&nbsp;<br>Criminal Petition 80 of 2021 decided 4 October 2021<br>Judgment Link:&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/415771/1/CRLP80-21-04-10-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/415771/1/CRLP80-21-04-10-2021.pdf</a></b></p><p><b>The petitioner being the accused in Special C.C.No.438/2020 on the file of Additional City Civil and Sessions Judge, and Special Court for trial of offences under SC/ST (Prevention&nbsp; of&nbsp; Atrocities)&nbsp; Act has preferred this&nbsp; petition&nbsp; under&nbsp; section&nbsp; 482 of Cr.P.C., for quashing the said proceedings in connection with offences&nbsp; punishable&nbsp; under Sections 172 and 173 of IPC and Sections 3( 1)( f) and 3(1)(g) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (‘ SC/ ST&nbsp; Act’ for short).</b></p><p><b>10.<span style=\"white-space:pre\">	</span>For invoking clause(f), the land of a member of scheduled caste or scheduled tribe must be wrongfully occupied or cultivated&nbsp; by&nbsp; a&nbsp; person not belonging to scheduled caste&nbsp; or&nbsp; scheduled tribe. That means, viewed from the angle of&nbsp; meaning of the word ‘wrongfully’ given in the explanation, the occupation or cultivation must be against the will of a member of scheduled caste or scheduled tribe, or without the consent of such member or even if consent&nbsp; is&nbsp; obtained,&nbsp; it&nbsp; must have been obtained by putting threat. The charge sheet does not disclose these ingredients. The last explanation i.e., (D) is about fabrication of&nbsp; records of the land upon which the prosecution might have founded its case. But even with regard to explanation ‘D’, it is possible to opine that since the petitioner’s sale deed is not disputed, it&nbsp; is difficult to say that the revenue documents are fabricated, anyway the decision thereon will&nbsp; be&nbsp; taken by the Civil Court or revenue authorities. Therefore offence under Section 3(1)( f) of the&nbsp; Act&nbsp; is not made out.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">So if the petitioner has been fighting to protect his property, it is quite strange that the second respondent went to the extent of making a false complaint against the petitioner under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The petitioner has every right to protect his land.&nbsp; The dispute is purely civil in nature. If the FIR is read, it makes out no offence against the petitioner&nbsp; at all, and therefore, the charge sheet filed&nbsp;</b></p><p><b>11. Then so far as the offence under Section 3(1)(g) of the Act is concerned, the essential ingredient is wrongful dispossession or wrongful interference. There is no material&nbsp; indicating wrongful dispossession of second respondent from&nbsp; his land or wrongful interference with his land.&nbsp; If&nbsp; the premise of the litigation is seen, it is nothing more than a dispute between two adjacent land owners; it is pertinent to mention here that the petitioner disputes the very identity of the second respondent’ s land and therefore, a competent Civil Court can alone take a decision in this regard. For this reason Section 3(1 )(g) is also not attracted.</b></p><p><b>12. Section 2 (a) of the Act defines the word ‘Atrocity’ as an&nbsp; offence punishable under Section 3 of the Act. The&nbsp; source&nbsp; for&nbsp; enacting a&nbsp; special law&nbsp; for prevention of atrocity on the members of scheduled castes or scheduled&nbsp; tribes&nbsp; is&nbsp; Article&nbsp; 17 of&nbsp; the Constitution of India. The Act was enacted&nbsp; for eradication of untouchability, and to protect the members of scheduled caste or&nbsp; scheduled&nbsp; tribes from casteist attack&nbsp; and&nbsp; caste&nbsp; based discrimination. It is&nbsp; in&nbsp; this&nbsp; background&nbsp; that various offences are enumerated in Section 3 . The primary requirement for invoking any of&nbsp; the offences under Section 3 is caste based attack or hatred towards that caste.</b></p><p><b>13. Unless the investigation indicates or reveals intention of a person not belonging to scheduled caste or&nbsp; scheduled tribe&nbsp; to&nbsp; commit any&nbsp; of the offences under Section 3 of the Act, in&nbsp; order&nbsp; to oppress or insult or humiliate or subjugate or ridicule a member of scheduled caste or scheduled tribe as such person merely belongs to that caste,&nbsp; the offence under Section 3&nbsp; cannot be&nbsp; invoked in&nbsp; the charge sheet. It is not as though&nbsp; in&nbsp; every&nbsp; crime, if victim happens to be a member&nbsp; of scheduled caste or scheduled tribe, an&nbsp; offence&nbsp; under Section 3 of the Act has been committed. If motive for crime is not casteist attack, the accused can only be charge sheeted for any of the offences under Indian Penal Code that can be appropriately invoked in the background of the&nbsp; incident of&nbsp; crime or under other law which can be&nbsp; applied&nbsp; as&nbsp; the&nbsp; facts and circumstances indicate. While the Act is essentially meant for protecting the members of scheduled caste or scheduled tribe from atrocity or oppression, at the same, it cannot be allowed to be misused. Therefore there is greater responsibility&nbsp; on the investigating officer to take decision wisely before filing the charge sheet.</b></p><p><b>14.<span style=\"white-space:pre\">	</span>In the case on hand,&nbsp; as&nbsp; already discussed, no offence of atrocity appears to have taken place. Then there remains two&nbsp; offences&nbsp; under Indian Penal Code, Sections 172 and 173 of IPC, both the offences relate to avoidance of summons or notice. Since the charge&nbsp; sheet materials do not disclose the offence under Section 3(1)(f) and 3( 1)(g) of the Act, prosecuting the petitioner for two IPC offences amounts to abuse of process of court.</b></p><p><b>The proceedings in Special Case No.438/ 2020 on the file of LXX Additional City Civil and Sessions Judge and Special Judge, Bengaluru, against the petitioner are quashed.</b></p><p><br></p><div><br></div>', '875c97959e638d839ce14238236f7f85.jpg', '5d0dcdc4d0ff12b1e368090e68fa7d62.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-26', 1, '', '', '2021-10-27 03:36:01', '2021-10-27 03:36:01'),
(1114, 'oVgn36Lb7hEvPTsNUWUdyp0vS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Gift. Difference between repugnant condition and a defeasance condition in a gift deed explained. A repugnant condition is void whereas defeasance condition is valid if it does violate any rule of law. Karnataka High Court. ', '<p><b>B. Krishnaprasad vs Narayanamma <br>Regular First Appeal 1039 of 2014 decided on 4 October 2021<br>Judgment Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/415772/1/RFA1039-14-04-10-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/415772/1/RFA1039-14-04-10-2021.pdf</a></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">GIFT is defined under Section 122 of the Transfer of Property Act, 1882. The same reads as under;</b><br></p><p><b><i>“122. \"Gift\" defined. - \"Gift” is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee\".</i></b></p><p><b>The essence of a gift is that it is a gracious transfer. Blackstone says: ‘Gifts are always gratuitous; grants are upon some consideration or equivalent’.</b></p><p><b>The word ‘voluntarily’ in the Section is used in its popular sense denoting the exercise of unfettered will, and not in its technical sense of ‘without consideration’. For </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">proving that the deed was executed with free and  voluntary consent of the donor it must be proved that the physical act of signing the deed coincided with the animus (mental act) i.e., an intention to execute the gift.</b></p><p><b>A gift implies four elements-a donor, a donee, a property and a formal act which transfers the right of the donor to the donee. As to the formal act, according to Mithakshara law, there must be an act of renunciation by the donor evidencing the intention of divesting himself of ownership and an acceptance by the donee. According to the Mithakshara School of Hindu Law the gift is not complete unless there is an acceptance by the donee. This view is not accepted by Jimutavahana , the author of the Dayabhaga. In chapter I paragraph 21 Jimutavahana says: “…. in the case of donation, the donee’s right to the thing; arises from the act of the giver; namely, from his relinquishment in favor of the donee who is a sentient person”. In the next paragraph the argument is further elaborated by saying that property is not created by </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">acceptance, for then it would follow that the acceptor was the giver. This divergence of views between the two  schools as to the necessity of acceptance was not apparently noticed by the learned judges who decided the cases of DHARMODAS DAS V. NISTARINI - ILR (1887) 14 Cal 446 and LAKSHIMONI DASI V. NITTYANANDA</b></p><p><b>DAY - (1892) ILR 20 Cal 464, where it was held by Calcutta High Court that to constitute a valid gift there  must be an acceptance by the donee. The indigenous Dayabhaga law in this behalf has been modified by judicial decisions.</b></p><p><b>The ancient Hindu law recognized conditional gifts Manu, Ch VIII 5, laid down that “ should money be given for a purpose by one man to another who asks it, the gift shall be void if the money is afterwards not used in the manner stated”. </b></p><p><b>DEFINITION OF A DEED: A document is some writing which furnishes evidence or information about something. All deeds are documents, but not  all  documents are deeds. For instance, a legend chalked on a brick wall, or a writing tattooed on a sailor’s back may be documents but they are not deeds. A deed is, therefore, a particular kind of document. It must be a writing and a writing on paper or its like e.g., vellum or parchment. Any instrument under seal is a deed if made between private persons. It must be signed, sealed and delivered. A deed must either (a) effect the transference of an interest, right or property, or (b) create an obligation binding on some persons or persons, or (c) confirm some act whereby an interest , right or property has already passed. </b></p><p><b>So, with all the above-mentioned  preliminaries settled the Court is faced with the question - What does a deed mean? It must be noticed that this is not necessarily the same as “what did the parties intend when they executed the document?” They are presumed to have intended to say that which they have in fact said, so their words as they stand must be construed. The question is, not what did the parties intend to say? – that is precluded by the presumption that they have said what  they  intended to say. The question to be solved is, what have they said? What meaning is to be attached to the expressions they have used?</b></p><p><b>To a layman, the easiest way to answer this question might seem to be to call the parties before the Court and ask them what they meant. In that case, the parties would not only usurp the function of the Court, but would  probably hold entirely different opinions as to what was   the meaning of the words used. I shall notice the limited scope allowed to the admission of oral evidence in these </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">matters; that direct evidence is inadmissible to construe  the language of a document is beyond question.</b></p><p><b>The decisions of the Courts extending over very  many years have often been crystallized into a body of  rules deduced from those decisions. It must be noticed   that these rules are in no way rules of law, as,  for  instance, was the rule in Shelley’s case, but their application depends on the circumstances of each  particular case.</b></p><p><b>Having understood, how a deed has to be construed, let us understand the rules of interpretation of a deed.</b></p><p><b>The rules of interpretation be classified as under.</b></p><p><b>Rule I The meaning of the document or of a particular part of it is therefore to be sought for in the document itself.</b></p><p><b>Rule II The intention may prevail over the  words used. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Ordinarily, parties use apt words to express their intention; but often they do not. The cardinal rule again is that clear and unambiguous words prevail over any intention, but if the words used are not clear and unambiguous, the intention will prevail. We have seen that the most essential thing is to collect the intention of the parties from the expressions they have used in the deed itself. What if the intention so collected will not square with the words used? The answer is that the intention prevails.</b></p><p><b>Rule III Words are to be taken in their literal meaning.</b></p><p><b>Rule IV Literal meaning depends on the circumstances of the parties.</b></p><p><b>RULE V When is extrinsic evidence admissible to translate the language.</b></p><p><b>RULE VI Technical legal terms will have their legal meaning.</b></p><p><b>RULE VII Therefore, the deed is to be  construed as a whole.</b></p><p><b>The Section 10 of Transfer of Property Act, 1882 deals with a restricted transfer i.e., the restriction being imposed by way of a condition or limitation absolutely restraining the alienation  of the  property transferred, and it provides that such a condition or limitation is void. The reason is that though according to the general principles above stated, parties are at liberty to make restricted transfers, this liberty is not absolute, but is subject to the qualification that the restriction sought to be imposed is not against public policy. An absolute restrain on such a legal incident of property as the power of alienation will tend to create perpetuity and this, the law has always regarded with great disfavor as being opposed to public policy.</b></p><p><b>This principle is not confined to the English system of jurisprudence. It has been recognized also by the Hindu as well as the Muhammadan systems of jurisprudence.</b></p><p><b>The section applies only where the transfer is made subject to a condition against alienation, that is, where the condition is annexed to the property transferred.</b></p><p><b>The principle underlying Section 10 is that a right of transfer is incidental to, and inseparable from,  the beneficial ownership of property. An absolute restraint on that power is repugnant to the nature of the estate and exception to the very essence of the grant.</b></p><p><b>If there is a valid transfer, the condition in restraint  of alienation is void and the transfer stands. The Section</b></p><p><b>only refers to restraint on alienation by the transferee or those claiming under him.</b></p><p><b>The distinction between a repugnant provision and a defeasance provision is sometimes subtle but the general principle of law seems to be, that where the intention of  the donor is to maintain the absolute estate conferred on the donee, but he simply adds some restrictions in derogation of the incidents of such absolute ownership, such restrictive clauses would be repugnant to the absolute grant and therefore void, but where the grant of an absolute estate is expressly or impliedly made subject to defeasance on the happening of a contingency and  where the effect of such defeasance would not be a violation of any rule of law, the original estate is curtailed and the gift over must be taken to be valid and operative.</b></p><p><b>This Court is of the opinion that the absolute estate conferred upon Achappa and Papaiah is subject to defeasance clause in the event of Papaiah not having any male issue and such a defeasance clause is not opposed to any rule of law.</b></p><p><b>By the reason of operation of the defeasance clause on the non-happening of the contingency, the original estate will be cut-down to a life estate and the  estate would revert back. </b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '2905e49cbb3c693d1867a8ec74a50954.jpg', 'fe3e3abfa655078910bccdd429b7de72.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-27', 1, '', '', '2021-10-27 21:02:36', '2021-10-27 21:03:17'),
(1115, '8M25FxLBvbNIqgHX2g1UbHMJa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Reservation in favour of women in grass root politics like Village Panchyat is a step towards the fruition of the dreams of the father of the nation and the same cannot be found fault with on technical grounds. Karnataka High Court. ', '<p><b>Ravi and another vs State of Karnataka and others. <br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Writ Petition 1306 of 2021 decided on 20 September 2021<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/416521/1/WP1506-21-20-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/416521/1/WP1506-21-20-09-2021.pdf</a></b></p><p><b>14. The plausible justification given by the State and the Election Commission is acceptable as the allotment of Scheduled Caste (woman) reservation to Konaje Grama Panchayat comes about in the light of the fact that on earlier occasion when elections took place in the year 2015, Adhyaksha of Konaje Grama Panchayat had been allotted to general category and insofar as Kinya Gram Panchayat is concerned, it was reserved  for general (woman). Therefore, following the guidelines that there should be a rotation which should  not result in repetition of reservation to women, the office of Adhyaksha in the year 2021, is allotted to Scheduled Caste (woman) in Konaje Grama Panchayat. The allotment of reservation to the office of </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Adhyaksha and Upadhyaksha is undertaken by taking Taluk as   a unit. The reservations are allotted by  the  Deputy Commissioner on Taluk basis within the District in terms of parameters set out in Section 44 of the Act (supra) and based upon the guidelines of the Commission dated 01.01.2021.</b></p><p><b>15. The guidelines stipulated for reservation on rotation basis would clearly indicate that the repetition of reservation should be avoided as far as possible. The usage of software for picking up seats to be reserved for particular category cannot be held to be arbitrary as contended by the petitioners unless it is demonstrable that it has resulted in illegality or arbitrariness, demonstration of which, I do not find in the case at hand. It is a uniform process that is evolved by the Commission and is directed to be implemented. Though keying in the  data is done by the computer operator, the same would not enure to the benefit of the petitioners to contend that the process is erroneous, unless it is demonstrated that reservation  of  the office of Adhyaksha in favour of Scheduled Caste woman is </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">arbitrary and contrary to law, that would entail interference at the hands of this Court.</b></p><p><b>18. The situation projected by the petitioner in the first blush would seem that seats reserved for members of all the Gram Panchayat being given to women. But such fact has become inevitable as women have in fact emerged victorious in all the seats reserved for Scheduled Castes and  Scheduled  Tribes and to the post of Adhyaksha of Konaje  Gram Panchayat is given to a woman as there are two members elected who  belong to Scheduled Caste in Konaje Gram Panchayat - one a man and the other a woman. Therefore, members in all the reserved seats being women and Adhyaksha of Konaje Gram Panchayat being a woman, cannot be held to be arbitrary.</b></p><p><b>19. It is in fact a vindication of empowerment of woman in gross root politics. In my considered view, the case at hand is a clear step towards the fruition of the dreams of the father of the nation with regard to village level governance and participation  of women in such governance. 73rd Amendment to the Constitution was a step towards self-governance at gross root level but equal right insofar as participation of women at gross root level had not come about. This is a classic case where empowerment of the hitherto under-powered has emerged in all vigor at grass root level. The challenge is made one of the petitioner who is a Scheduled Caste man. If it were to  be  contrary to law, it would have been a different circumstance altogether, while it is not. It is high time that men make way or give such opportunity to women, the woman - Adhyaksha in Konaje Gram Panchayat.</b></p><p><b>20. For the aforesaid reasons, I do not find any merit in the writ petition. The writ petition fails and is accordingly dismissed.</b></p>', '37aae993a5c1bd81b1e7cdac984110d0.jpg', 'b5e1aa8cd7d53c009a4e0747ad85c4ac.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-27', 1, '', '', '2021-10-27 23:04:10', '2021-10-27 23:10:07'),
(1116, 'uSDfEmha0CH4FZbtMYJJ33UEi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Registration of sale deed in the State of Karnataka. Sub-registrars can NOT insist on production of \'11E\' sketch for registration. Govt website to be updated accordingly. Karnataka High Court. ', '<p><b>Vaishali vs The State of Karnataka and another <br>Writ Petition 103813 of 2021 decided on 5 October 2021</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/416462/1/WP103813-21-05-10-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/416462/1/WP103813-21-05-10-2021.pdf</a></b></p><p><b>3....In this context, learned counsel for the petitioner also submitted that&nbsp; in&nbsp; relation to&nbsp; the production of ‘11E’ sketch, the State Government had issued a circular dated 06.04.2009 requiring production of ‘11 E’ sketch at the time of registration&nbsp; of the documents by the registering authorities. The said circular dated 06 .04.2009 was called in question before this Court in the case of G.Ramachar and another V/s State of Karnataka and others, AIR 2016( 3 ) KLJ Page 1, wherein this&nbsp; Court has quashed the said circular as well as Section 22 A&nbsp; of&nbsp; the Indian Registration Act, 1908 (Karnataka Amendment). It is also submitted that by&nbsp; virtue&nbsp; of&nbsp; the striking down of Section 22A of the Registration Act, 1908 (Karnataka Amendment) as well as the aforesaid circular dated 06 .04 .2009 issued by the State Government in pursuance of the&nbsp; said provision, it was not open for the respondent No.2-registering authority to insist upon production of the ‘11 E’ sketch for the purpose of registration of the&nbsp; sale&nbsp; deed.&nbsp; In this context, learned counsel also places&nbsp; reliance&nbsp; upon&nbsp; the&nbsp; decision&nbsp; of&nbsp; this&nbsp; Court&nbsp; in&nbsp; the&nbsp; case&nbsp; of Smt. Vaishali<span style=\"white-space:pre\">	</span>V/ s<span style=\"white-space:pre\">	</span>The<span style=\"white-space:pre\">	</span>Sub<span style=\"white-space:pre\">	</span>Registrar, W.P.No. 117177 /2019 dated 18.03. 2021 in&nbsp; order to contend that the decision of this Court in&nbsp; Ramachar’s case has been followed and identical/similar endorsement issued by the Sub- Registrar was quashed and this&nbsp; Court issued necessary directions to the Sub- Registrar to register the sale deeds produced by the petitioner therein without insisting upon production of the ‘11 E’ sketch. It is therefore submitted that having regard to the aforesaid facts and circumstances, the impugned endorsement at Annexure-C dated 21.09 .2021 deserves to be quashed.</b></p><p><b>iii.<span style=\"white-space:pre\">	</span>Respondent No.2 is directed to handover the registered sale&nbsp; deed&nbsp; dated 18.12.2010 to the petitioner without insisting upon production of ‘11E’ sketch within a period of one month&nbsp; from&nbsp; the date of receipt of a copy of this order. Respondent No. 1/State of Karnataka is also directed to carry out/ make necessary changes/corrections in the&nbsp; website https:// kaverionline. karnataka.gov. in to enable uploading registered&nbsp; documents&nbsp; on the aforesaid website without insisting on production of ‘11E’ sketch and even in the absence of ‘11E’ sketch by incorporating<span style=\"white-space:pre\">	</span>suitable<span style=\"white-space:pre\">	</span>changes/ corrections in the aforesaid website as expeditiously as possible.</b></p><p><b><br></b></p><p><br></p>', 'bb10cd6be77b3878316934cc928bf3fa.jpg', '4de21f6b6b95f21bda9e03dc7f1df8cd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-28', 1, '', '', '2021-10-29 00:49:36', '2021-10-29 00:56:41'),
(1118, 'LAd0Or0LRCzxCfA936hn9Cl6g', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Waiver. Acceptance of payment of the principal amount over a period of different transactions, without the claim of interest amounts to waiver of right to claim such interest. Karnataka High Court. ', '<p><b>Trident Architectural Aluminium Private Limited and another <br>Regular First Appeal 500 of 2017 decided on 22 October 2021<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/416886/1/RFA500-17-22-10-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/416886/1/RFA500-17-22-10-2021.pdf</a></b><b><br></b></p><p><b>Waiver. Where one party voluntarily accedes to a request by the other that he should not insist on the  precise mode of performance fixed by the contract, the Court will hold that he has waived his right to insist that  the contract be performed in this respect according to its original tenor.</b></p><p><b>It appears that the genesis of the doctrine  of waiver is attributable to the difficulties which arose out of a strict application of the provisions of the Statue of Frauds 1677. It has been noticed that any variation of a contract  required to be evidenced by writing must itself be in writing. If it is merely oral, it is of no effect. Thus, any oral </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">forbearance or concession made by one party to the other should also strictly be unenforceable. Nevertheless, the courts showed themselves reluctant to apply this rule in its full severity. Accordingly they established a distinction between a variation (for which writing will be necessary in the case of a contract required by the Statute to be evidenced by writing) and a waiver (which may be oral in any event). This distinction is most difficult to apply in practice, although it has become much less  important  since the almost total repeal of the Statute by the Law Reform (Enforcement of Contracts) Act 1954.</b></p><p><b>A waiver may be oral or written or inferred from conduct even though the provision is found in a contract required to be evidenced by writing.</b></p><p><b>In the landmark case of PLEVINS V. DOWNING (R), along with BESSLER, WAECHTER, GLOVER & CO. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">V.<span style=\"white-space:pre\">	</span>SOUTH DERWENT COAL CO. LD., It was observed that:</b></p><p><b><i>“…If the defendant, as he did, led the plaintiffs to believe that he would not insist on the stipulation as to time, and that, if they carried out the work, he would accept it, and they did it, he could not afterwards set up the stipulation as to the time against them. Whether it be called waiver or forbearance on his part, or an agreed variation or substituted performance, does not matter. It is a kind of estoppel. By his conduct he evinced an intention to affect their legal relations. He made, in effect, a promise not to insist on his strict legal rights. That promise was intended to be acted on, and was in fact acted on. He cannot afterwards go back on it.”</i></b></p><p><b>In CHARLES RICKARDS  LD.  VS.OPPENHAIM </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reported in (1950) 1 KING’S BENCH DIVISION 616 =</b></p><p><b>[(1950) All ER 420], the King’s Bench Division while answering the question of what constitutes waiver,  Denning L.J. has observed as under:</b></p><p><i><b>“…Upon this point I would say that in order to constitute a waiver there must be conduct which leads the other party </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reasonably to believe that the strict legal rights will not be insisted upon. The whole essence of waiver is that there must be conduct which evinces an intention to affect the legal relations of the parties.”</b></i></p><p><b>In JAGAD BANDHU CHATTERJEE V. NILIMA </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">RANI reported in (1969) 3 SCC 445, the  Hon’ble Supreme Court held: (SCC pp. 446-47, para 5)</b></p><p><b>5. In India the general principle with regard to waiver of contractual obligation is to be found in Section 63 of the Contract Act. Under that section it is open to a promisee to dispense with or remit, wholly  or in part, the performance of the promise made to him or he can accept instead of it any satisfaction which he thinks fit. Under the Indian law neither consideration nor an agreement would be necessary to constitute waiver. This Court has already laid down in Waman Shriniwas Kini v. Ratilal  Bhagwandas & Co. [Waman Shriniwas Kini </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">v. Ratilal Bhagwandas & Co., 1959 Supp (2) SCR 217 : AIR 1959 SC 689] , SCR p. 226 that: (AIR p. 694, para 13)</b></p><p><b><i>13. … waiver is the abandonment of a right which normally everybody is at liberty to waive. “A waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not to insist upon  the right”.</i></b></p><p><b>It is also pivotal to observe that under the Indian Law, waiver can occur without consideration in exchange  for waiving off the right or an agreement to the effect of waiving off of such a right, the conduct of the party is sufficient in construing whether he has waived of his right.</b></p><p><b>Reverting to the facts of the case, the defendants have specifically contended that the plaintiff by their conduct has waived of their right to seek the relief of interest.</b></p><p><b>It is needless to say that from the material available on record, the conduct of the plaintiff in acceptance of payment of the principal amount over a period of different transactions, without the claim of interest from the defendants amounts to waiver of his right to claim such interest, as this conduct of the plaintiff, led the first defendant to believe that they would not insist on such claim and that they would merely accept the principal amount. Therefore, by its conduct, the plaintiff evinced an intention to affect their legal  relations, and in effect made  a promise not to insist on its strict legal right to claim interest. That promise was intended to be acted on, and was in fact acted on, when they accepted the payments made by the defendants post the credit period, without raising a claim for interest. Hence, they cannot now go  back and claim the interest.</b></p><p><b>Under the Indian Law neither consideration nor an agreement would be necessary to constitute waiver.</b></p><p><b>Therefore, a written agreement discharging liability is not a mandate of law, hence this contention fails.</b></p><p><b>In conclusion, the action initiated by the plaintiff against the defendants must necessarily fail </b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b> </b></p>', '7c7b13f4d96c868de4ebfdef14701f51.jpg', 'c1c9544894888501574292da99e2a518.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-28', 1, '', '', '2021-10-29 02:26:07', '2021-10-29 02:27:07'),
(1119, 'Zip7kUSvRFFdtIs4lrpc62BDy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'National Security Act, 1980. Unexplained delay in deciding representation and failure to communicate rejection order in a timely manner vitiates detention order under Section 3(2). Supreme Court.', '<p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; font-weight: bolder;\">Sarabjeet</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; font-weight: bolder;\">&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Singh Mokha vs&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; font-weight: bolder;\">The District Magistrate, Jabalpur &amp; Ors<br></span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Criminal Appeal No. 1301 of 2021 decided on 29 October 2021.<br></span><b>Judgment Link:&nbsp;</b><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"https://main.sci.gov.in/supremecourt/2021/21428/21428_2021_34_1505_30972_Judgement_29-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/21428/21428_2021_34_1505_30972_Judgement_29-Oct-2021.pdf</a></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Justice Dr Dhananjaya Y Chandrachud, Justice Vikram Nath and Justice B V Nagarathna&nbsp;</b></span><br></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1 By a judgment dated 24 August 2021, a Division Bench at the Indore Bench\r\nof the High Court of Madhya Pradesh rejected a petition under Article 226 of the\r\nConstitution of India challenging a detention order passed against the appellant\r\nunder Section 3(2) of National Security Act 1980. The detenu is in appeal.</b><br></p><p><b>17 Article 22 of the Constitution provides specific protections to undertrials and\r\ndetainees in India. The framers of the Constitution, who were also our freedom\r\nfighters, were conscious of founding a polity that secured civil and political freedoms\r\nto its citizens. Dr B R Ambedkar, while proposing the article, noted the necessity of\r\nretaining the concept of preventive detention “in the present circumstances of the\r\ncountry”.39 However, the discontinuity from the colonial regime lay in the introduction\r\nof strict countervailing measures that ensured that “exigency of liberty of the\r\nindividual [is not] placed above the interests of the State” in all cases.40<br></b></p><p><b>19 The text of Article 22 enshrines certain procedural safeguards, many of which\r\nare otherwise available in the CrPC. In elevating these safeguards to a constitutional\r\nstatus, the framers imposed a specific “limitation upon the authority both of\r\nParliament as well as [State] Legislature [to] not abrogate” 41 rights that are\r\nfundamental to India’s constitution. Dr Bakshi Tek Chand, a conscientious dissenter\r\nto preventive detention in peaceful times, proposed a further safeguard in the\r\nprovision of a right to make representation to the detenu,\r\n42 which was eventually\r\naccepted by the Constituent Assembly as a reasonable compromise43Therefore,\r\npreventive detention in independent India is to be exercised with utmost regard to\r\nconstitutional safeguards.<br></b></p><p><b>20 This history of the framing of Article 22 is critical for the judiciary’s evaluation\r\nof a detenu’s writ petition alleging, inter alia, a denial of the timely consideration of\r\nhis representation. While several arguments have been preferred by the appellant to\r\nargue for his release from preventive detention, we are confining our analysis to the\r\nmost clinching aspect of this case - the failure of the Central Government and the\r\nState Government to consider his representation dated 18 May 2021 in a timely\r\nmanner<br></b></p><p><b>32 The issue that arises for our consideration is whether the procedural rights of\r\nthe detenu emanating from Article 22 of the Constitution and Section 8 of the NSA\r\nwere sufficiently protected in the present case.&nbsp;<br></b></p><p><b>33 The requirement under Section 8 of the disclosure and communication of the\r\ngrounds of detention and the affording of an opportunity to the detenu of making a\r\nrepresentation against such an order to the appropriate government, is distinct from\r\nthe reference to the Advisory Board. In Jayanarayan Sukul v. State of West\r\nBengal (1970) 1 SCC 219, a Constitution Bench of this Court laid emphasis on the expeditious\r\nconsideration of the representation by the appropriate government. In that case, a\r\nrepresentation was made by the petitioner against an order of detention passed\r\nunder Section 3(2) of the Preventive Detention Act 1950. The petitioner made a\r\nrepresentation to the State Government on 23 June 1969, which was rejected on 19\r\nAugust 1969, as a reference regarding the detention order was pending before the\r\nAdvisory Board. The Court held that there was an inordinate delay in considering the\r\nrepresentation of the petitioner.&nbsp;<br></b></p><p><b>55 Accordingly, the order of detention is invalidated on two grounds: first, the\r\nunexplained delay on part of the State Government in deciding the representation of\r\nthe appellant and second, the failure of the Central and State Governments to\r\ncommunicate the rejection of the representation to the appellant in a timely manner.\r\nThe basis of the extensions which have been issued on 15 July 2021 and 30\r\nSeptember 2021, finds its genesis in the original order of detention dated 11 May\r\n2021. Once the order of detention stands invalidated, the consequential extensions\r\nwould follow the same course. During the course of the proceedings, both parties\r\nhave advanced submissions on the merits of the order of detention. In the view\r\nwhich we have taken, it is not necessary to consider these other grounds of&nbsp;challenge since the appellant is entitled to succeed on the violation of his procedural\r\nrights under the Constitution and the statute.\r\n</b></p><p><b>56 For the reasons we have indicated above, the appeal is accordingly allowed.\r\nThe impugned judgment of the High Court dated 24 August 2021 shall stand set\r\naside. The order of detention dated 11 May 2021 and the extensions dated 15 July\r\n2021 and 30 September 2021 shall accordingly stand quashed and set aside. </b></p><p><b><br></b></p><p><br></p>', 'f5e5156bdb20cdddf253efcda8495f5b.jpeg', 'daddb17e91f0b5dcb06d962ebc0e1ec7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-29', 1, '', '', '2021-10-29 23:46:13', '2021-10-29 23:46:13');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1120, 'VWXqK6Sg0Y0HZAnPCu6eU6wn6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prosecution under Minimum Wages Act. ‘In-charge of the company’ and ‘responsible to the company’ requirement has to be satisfied for rendering the person liable to be proceeded against and punished. Supreme Court.  ', '<p><b>Dayle De\'Souza vs Government of India through Deputy Chief Labout Commissioner<br>Criminal Appeal ..of 2021 (Special Leave Petition 3913 of 2020 decided on 29 October 2021.<br>Justice R. Subhash Reddy and Justice Sanjiv Khanna&nbsp;<br>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2020/17576/17576_2020_46_1501_30986_Judgement_29-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/17576/17576_2020_46_1501_30986_Judgement_29-Oct-2021.pdf</a></b></p><p><b>8. Section 22A of the Act, the provision invoked, is a ‘General\r\nprovision for punishment of other offences’ where “any employer\r\nwho contravenes any provision of this Act or of any rule or order\r\nmade thereunder shall, if no other penalty is provided for such\r\ncontravention by this Act, be punishable with fine which may\r\nextend to five hundred rupees”. Clause (b) of sub-section (1) to\r\nSection 22B with the heading “Cognizance of offences” states that\r\n“No court shall take cognisance of a complaint against any person\r\nfor an offence - under clause (b) of section 22 or under section\r\n22A, except on a complaint made by, or with the sanction of, an\r\nInspector”. Sub-section (2) to Section 22B, insofar as it relates to\r\nSection 22A, vide sub-clause (b) states that “No Court shall take\r\ncognisance of an offence – under Section 22A, unless complaint\r\nthereof is made within six months of the date on which the offence\r\nis alleged to have been committed.”<br></b></p><p><b>9. However, in the context of the present appeal, it is Section 22C of\r\nthe Act which is of more relevance.</b></p><p><b>10. Sub-section (1) to Section 22C states that where an offence is\r\ncommitted by a company, every person who at the time the\r\noffence was committed was in-charge of and was responsible to\r\nthe company for the conduct of the business, as well as the\r\ncompany itself shall be deemed to be guilty of the offence. By\r\nnecessary implication, it follows that a person who do not bear out\r\nthe requirements is not vicariously liable under Section 22C(1) of\r\nthe Act. The proviso, which is in the nature of an exception, states\r\nthat a person who is liable under sub-section (1) shall not be&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">punished if he proves that the offence was committed without his\r\nknowledge or that he had exercised all due diligence to prevent\r\nthe commission of such offence. The onus to satisfy the\r\nrequirements to take benefit of the proviso is on the accused, but\r\nit does not displace or extricate the initial onus and burden on the\r\nprosecution to first establish the requirements of sub-section (1) to\r\nSection 22C of the Act. The proviso is to give immunity to a\r\nperson who is vicariously liable under sub-section (1) to section\r\n22C of the Act.&nbsp;</span></b></p><p><b>11. Sub-section (2) states that notwithstanding anything contained in\r\nsub-section (1), where any offence under the Act has been\r\ncommitted by a company, and it is proved that such offence has\r\nbeen committed with the consent or connivance of, or is\r\nattributable to any neglect on the part of, any director, manager,\r\nsecretary or other officer of the company, then such director,\r\nmanager, secretary or other officer of the company shall also be\r\ndeemed to be guilty of that offence and shall be liable to be\r\nproceeded against and punished accordingly. Without much ado,\r\nit is clear from a reading of sub-section (2) to Section 22C of the\r\nAct that a person cannot be prosecuted and punished merely\r\nbecause of their status or position as a director, manager,\r\nsecretary or any other officer, unless the offence in question was\r\ncommitted with their consent or connivance or is attributable to\r\nany neglect on their part. The onus under sub-section (2) to\r\nSection 22C is on the prosecution and not on the person being\r\nprosecuted.<br></b></p><p><b>&nbsp;13. This exposition on the meaning of the term ‘in-charge and\r\nresponsible for’ was referred to with approval in State of\r\nKarnataka v. Pratap Chand and Others. (1981) 2 SCC 335. This decision relates to\r\nthe prosecution of the partner of a firm under the Drugs and\r\nCosmetics Act, 1940. The judgment referred to the explanation to\r\nSection 34 in the said Act (which is pari materia with the\r\nexplanation in Section 22C of the Minimum Wages Act, 1948) to\r\nobserve that for the purpose of imposing liability on the company <br></b></p><p><b>17. The necessities of sub-section (2) to Section 22C of the Act are\r\ndifferent from sub-section (1) to Section 22C of the Act. Vicarious\r\nliability under sub-section (2) to Section 22C can arise because of\r\nthe director, manager, secretary, or other officer’s personal\r\nconduct, functional or transactional role, notwithstanding that the\r\nperson was not in overall control of the day to day business of the\r\ncompany when the offence was committed. Vicarious liability is\r\nattracted when the offence is committed with the consent,\r\nconnivance, or is attributable to the neglect on the part of a\r\ndirector, manager, secretary, or other officer of the company.</b></p><p><b>27. In terms of the ratio above, a company being a juristic person\r\ncannot be imprisoned, but it can be subjected to a fine, which in\r\nitself is a punishment. Every punishment has adverse\r\nconsequences, and therefore, prosecution of the company is\r\nmandatory. The exception would possibly be when the company\r\nitself has ceased to exist or cannot be prosecuted due to a\r\nstatutory bar. However, such exceptions are of no relevance in the\r\npresent case. Thus, the present prosecution must fail for this\r\nreason as well.<br></b></p><p><b>31. There are a number of decisions of this Court in which, with\r\nreference to the importance of the summoning order, it has been\r\nemphasised that the initiation of prosecution and summoning of\r\nan accused to stand trial has serious consequences&nbsp; They\r\nextend from monetary loss to humiliation and disrepute in society,\r\nsacrifice of time and effort to prepare defence and anxiety of\r\nuncertain times. Criminal law should not be set into motion as a\r\nmatter of course or without adequate and necessary investigation\r\nof facts on mere suspicion, or when the violation of law is doubtful.\r\nIt is the duty and responsibility of the public officer to proceed\r\nresponsibly and ascertain the true and correct facts. Execution of\r\nlaw without appropriate acquaintance with legal provisions and\r\ncomprehensive sense of their application may result in an\r\ninnocent being prosecuted.</b></p><p><b>Resultantly, and for the reasons stated above, we would allow the\r\npresent appeal and quash the summoning order and the\r\nproceedings against the present appellant.<br></b></p><p><b><br></b></p><p><br></p>', '1de95ad2135390f117a994f09ca1e644.jpg', '4c74c721fa890194cb557e4b2be1cc0e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-29', 1, '', '', '2021-10-30 00:32:05', '2021-10-30 00:32:05'),
(1121, 'D5CXHMDwhuG1UfdpPWdxSrQDi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Courts cannot re-write terms of insurance policy. Insured person renewing lapsed policy without disclosing the accident smacks of malafides and disentitles him to claim insurance money. Supreme Court. ', '<p><b>Life Insurance Corporation of India and another vs Sunita<br>Civil Appeal ...2021 (Special Leave Petition 13868 of 2019 decided on 29 October 2021<br>Justice Sanjiv Khanna and Justice Bela M. Trivedi.<br></b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/21073/21073_2019_46_1502_30986_Judgement_29-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/21073/21073_2019_46_1502_30986_Judgement_29-Oct-2021.pdf</a></b><br></p><p><b>2. The present appeal is directed against the judgment and order\r\ndated 24th April, 2019 passed by the National Consumer Disputes\r\nRedressal Commission, New Delhi (hereinafter referred to as the\r\nNCDRC) in Revision Petition No. 897 of 2018, whereby the NCDRC\r\nwhile allowing the said Revision Petition, has set aside the order\r\npassed by the State Commission and has confirmed the order\r\npassed by the District Forum.&nbsp;<br></b></p><p><b>8. Now, so far as the facts of this case are concerned, it is not\r\ndisputed that the husband of the complainant had taken the life\r\ninsurance policy on 14.04.2011, that the next premium had fallen\r\ndue on 14.10.2011 but was not paid by him, that the husband of\r\nthe complainant met with an accident on 06.03.2012, that\r\nthereafter the premium was paid on 09.03.2012 and that he\r\nexpired on 21.03.2012. It is also not disputed that at the time of\r\nmaking payment of premium on 09.03.2012, it was not disclosed by\r\nthe complainant or her husband to the appellant-Corporation about\r\nthe accident which had taken placed on 06.03.2012. The said\r\nconduct on the part of the complainant and her husband in not\r\ndisclosing about the accident to the corporation not only amounted\r\nto suppression of material fact and lacked bona fides but smacked\r\nof their mala fide intention, and therefore, the Accident benefit\r\nclaim of the complainant was liable to be rejected on the said\r\nground alone. It is well settled legal position that in a contract of\r\ninsurance there is a requirement of Uberrima fides i.e. good faith on\r\nthe part of the assured.&nbsp;<br></b></p><p><b>9. From the afore-stated legal position, it is clear that the terms of\r\ninsurance policy have to be strictly construed, and it is not\r\npermissible to rewrite the contract while interpreting the terms of\r\nthe Policy. In the instant case, condition no. 11 of the Policy clearly\r\nstipulated that the policy has to be in force when the accident takes\r\nplace. In the instant case, the policy had lapsed on 14.10.2011 and\r\nwas not in force on the date of accident i.e. on 06.03.2012. It was\r\nsought to be revived on 09.03.2012 after the accident in question,\r\nand that too without disclosing the fact of accident which had taken\r\nplace on 06.03.2012. Thus, apart from the fact that the respondent.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">complainant had not come with clean hands to claim the add\r\non/extra Accident benefit of the policy, the policy in question being\r\nnot in force on the date of accident as per the condition no. 11 of\r\nthe policy, the claim for extra Accident benefit was rightly rejected\r\nby the appellant-Corporation. Since, clause 3 of the said terms and\r\nconditions of the policy permitted the renewal of discontinued\r\npolicy, the appellant-Corporation had revived the policy of the\r\nrespondent-complainant by accepting the payment of premium\r\nafter the due date and paid Rs. 3,75,000/- as assured under the\r\npolicy, nonetheless for the Accident benefit, the policy had to be in\r\nforce for the full sum assured on the date of accident as per the\r\nsaid condition no. 11. The said Accident benefit could have been\r\nclaimed and availed of only if the accident had taken place\r\nsubsequent to the renewal of the policy. The policy in the instant\r\ncase was lying in a lapsed condition since 14th October, 2011 and,\r\ntherefore, was not in force as on 06.03.2012, resultantly, the claim\r\nover Accident benefit was not payable to the respondent as per the\r\nconditions of the contract of insurance.</b></p><p><b>10. The Court, therefore, is of the opinion that the impugned order\r\npassed by the NCDRC setting aside the order passed by the\r\nCommission and reviving the order passed by the District Forum\r\nwas highly erroneous and liable to be set aside.</b><br></p>', 'c1d9342e83d50823e44a5865eb3fcbf2.jpg', '390cbb27489d3a0ba9002ebdd418cc9b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-29', 1, '', '', '2021-10-30 01:04:02', '2021-10-30 01:04:02'),
(1122, '5a7MvWoWuKbsy1nN3vDlxQfcI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prevention of Food Adulteration Act, 1954. Actual service of report of Public Analyst on the accused is mandatory failing which the entire proceedings get vitiated. Supreme Court. ', '<p><b>Narayana Prasad Sahu vs The State of Madhya Pradesh<br>Criminal Appeal 1312 of 2021 decided on 29 October 2021<br>Justice Ajay Rastogi and Justice Abhay S Oka.&nbsp;<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2018/19718/19718_2018_44_1502_30983_Judgement_29-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/19718/19718_2018_44_1502_30983_Judgement_29-Oct-2021.pdf</a></b></p><p><b>1. The appellant has been convicted for the offence punishable\r\nunder Section (16)(1)(a)(i)(ii) of the Prevention of Food Adulteration Act,\r\n1954 (for short “the said Act of 1954”). The allegation against the\r\nappellant was of violation of clauses (i) and (v) of Section 7 of the said\r\nAct of 1954</b></p><p><b>5. We have carefully considered the submissions. Sub-sections (1)\r\nand (2) of Section 13 of the said Act of 1954 reads thus:-\r\n</b></p><p><b><i>“13. Report of public analyst.—(1) The public\r\nanalyst shall deliver, in such form as may be\r\nprescribed, a report to the Local (Health) Authority of\r\nthe result of the analysis of any article of food\r\nsubmitted to him for analysis.\r\n(2) On receipt of the report of the result of the\r\nanalysis under sub-section (1) to the effect that the\r\narticle of food is adulterated, the Local (Health)\r\nAuthority shall, after the institution of prosecution\r\nagainst the persons from whom the sample of the\r\narticle of food was taken and the person, if any,\r\nwhose name, address and other particulars have\r\nbeen disclosed under section 14A, forward, in such\r\nmanner as may be prescribed, a copy of the report\r\nof the result of the analysis to such person or\r\npersons, as the case may be, informing such person\r\nor persons that if it is so desired, either or both of\r\nthem may make an application to the court within a\r\nperiod of ten days from the date of receipt of the\r\ncopy of the report to get the sample of the article of\r\nfood kept by the Local (Health) Authority analysed\r\nby the Central Food Laboratory”.\r\n</i></b></p><p><b>Under sub-section (2) of Section 13, it is mandatory for the Local\r\n(Health) Authority to forward a copy of the report of the Public Analyst\r\nto the person from whom the sample of the food has been taken in\r\nsuch a manner as may be prescribed. Further mandate of sub-section&nbsp;(2) of Section 13 is that a person to whom the report is forwarded\r\nshould be informed that if it is so desired, he can make an application\r\nto the Court within a period of ten days from the date of receipt of the\r\ncopy of the report to get the sample analysed by Central Food\r\nLaboratory. The report is required to be forwarded after institution of\r\nprosecution against the person from whom the sample of the article of\r\nfood was taken. Apart from the right of the accused to contend that the\r\nreport is not correct, he has right to exercise an option of sending the\r\nsample to Central Food Laboratory for analysis by making an\r\napplication to the Court within ten days from the date of receipt of the\r\nreport. If a copy of the report of the Public Analyst is not delivered to\r\nthe accused, his right under sub-section (2) of Section 13 of praying for\r\nsending the sample to the Central Food Laboratory will be defeated.\r\nConsequently, his right to challenge the report will be defeated. His\r\nright to defend himself will be adversely affected. <br></b></p><p><b>7....More than one mode was prescribed by Rule 9B for serving the report\r\nof Public Analyst on the accused. In the present case, after the postal\r\npacket was returned, not even an attempt was made to personally\r\nserve the report on the appellant.&nbsp;<br></b></p><p><b>9. Accordingly, the appeal is allowed.&nbsp;<br></b></p><p><br></p>', '7b64572b60eaa0a81b1420c630c450cb.jpg', 'f802d620dd06d813b83045de77dc9710.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-29', 1, '', '', '2021-10-30 01:51:21', '2021-10-30 01:51:21'),
(1123, 'iURaBWpNQIEiWiZeA8Vh7G9eS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SC-ST (Prevention of Atrocities) Act, 19891. \'Reasonable, accurate, and timely notice of any court proceeding including any bail proceeding\' under Section 15(3) is mandatory to safeguard rights of victim and accused as well. Supreme Court.    ', '<p><b>Hariram Bhambhi vs&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Satyanarayan &amp; anr.<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Criminal Appeal No. 1278 of 2021 decided on 29 October 2021<br>Justice&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Dr Dhananjaya Y Chandrachud and Justice&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">BV Nagarathna<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/16629/16629_2021_34_1502_30972_Judgement_29-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/16629/16629_2021_34_1502_30972_Judgement_29-Oct-2021.pdf</a></span></b></p><p><b>14. Sub-section (3) of Section 15A confers a statutory right on the victim or their\r\ndependents to reasonable, accurate, and timely notice of any court proceeding\r\nincluding a bail proceeding. In addition, sub-section (3) requires a Special Public\r\nProsecutor or the State Government to inform the victim about any proceeding\r\nunder the Act. Sub-section (3) confers a right to a prior notice, this being evident\r\nfrom the use of the expression “reasonable, accurate, and timely notice of any court\r\nproceeding including any bail proceeding”. Sub-section (5) provides for a right to be\r\nheard to the victim or to a dependent...The provisions of sub-section (3) which stipulate the requirement of notice and of\r\nsub-section (5) which confers a right to be heard must be construed harmoniously.\r\nThe requirement of issuing a notice facilitates the right to be heard. </b></p><p><b>15. Many High Court decisions have noted that Section 15A was introduced to\r\nprotect the rights of the victims and witnesses whose rights as equal beneficiaries of\r\nthe criminal justice system are often overlooked due to their weak social position.&nbsp;<br></b></p><p><b>20. Atrocities against members of the Scheduled Castes and Scheduled Tribes\r\nare not a thing of the past. They continue to be a reality in our society even today.\r\nHence the statutory provisions which have been enacted by Parliament as a&nbsp;measure of protecting the constitutional rights of persons belonging to the\r\nScheduled Castes and Scheduled Tribes must be complied with and enforced\r\nconscientiously. There has been an evident breach of the statutory requirements\r\nembodied in sub-sections (3) and (5) of Section 15A in the present case. \r\n&nbsp;<br></b></p><p><b>21. We also emphasize that sub-section (3) of Section 15A provides that a\r\nreasonable and timely notice must be issued to the victim or their dependent. This\r\nwould entail that the notice is served upon victims or their dependents at the first or\r\nearliest possible instance. If undue delay is caused in the issuance of notice, the\r\nvictim, or as the case may be, their dependents, would remain uninformed of the\r\nprogress made in the case and it would prejudice their rights to effectively oppose\r\nthe defense of the accused. It would also ultimately delay the bail proceedings or the\r\ntrial, affecting the rights of the accused as well.<br></b></p><p><b>&nbsp;</b><br></p>', '6b18a9035c9a66f4d75ea0efddd5d803.JPG', 'f2af9fef786be7c0904e8ca904bd2a62.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-29', 1, '', '', '2021-10-30 02:56:13', '2021-10-30 02:56:13'),
(1124, 'WQ0LJehfD2BZhqKiMd6aanJnZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Abetment to commit suicide. Mental condition of the deceased just before suicide can NOT be a relevant factor while considering petition to quash the proceedings. Supreme Court. ', '<p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Mahendra K C vs </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The State of Karnataka & Anr. <br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Criminal Appeal No. 1238 of 2021 decided on 29 October 2021<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice Dr Dhananjaya Y Chandrachud and Justice B V Nagarathna</span></b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/7513/7513_2021_34_1501_30972_Judgement_29-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/7513/7513_2021_34_1501_30972_Judgement_29-Oct-2021.pdf</a><br></b></p><p><b>21 Based on the above precedent, the High Court while exercising its power\r\nunder Section 482 of the CrPC to quash the FIR instituted against the second\r\nrespondent-accused should have applied the following two tests: i) whether the\r\nallegations made in the complaint, prima facie constitute an offence; and ii) whether\r\nthe allegations are so improbable that a prudent man would not arrive at the\r\nconclusion that there is sufficient ground to proceed with the complaint. Before\r\nproceeding further, it is imperative to briefly discuss the law on the abetment of\r\nsuicide to determine if a prima facie case under Section 306 of the IPC has been\r\nmade against the respondent-accused.</b></p><p><b>23 The essence of abetment lies in instigating a person to do a thing or the\r\nintentional doing of that thing by an act or illegal omission. In Ramesh Kumar v.\r\nState of Chhattisgarh (2001) 9 SCC 618, a three-judge Bench of this Court, speaking through Justice\r\nRC Lahoti (as the learned Chief Justice then was), observed:\r\n</b></p><p><b>“20. Instigation is to goad, urge forward, provoke, incite or\r\nencourage to do \"an act\". To satisfy the requirement of\r\ninstigation though it is not necessary that actual words must\r\nbe used to that effect or what constitutes instigation must\r\nnecessarily and specifically be suggestive of the\r\nconsequence. Yet a reasonable certainty to incite the\r\nconsequence must be capable of being spelt out. The present\r\none is not a case where the accused had by his acts or\r\nomission or by a continued course of conduct created such\r\ncircumstances that the deceased was left with no other option\r\nexcept to commit suicide in which case an instigation may\r\nhave been inferred. A word uttered in the fit of anger or\r\nemotion without intending the consequences to actually follow\r\ncannot be said to be instigation.”<br></b></p><p><b>25 While adjudicating on an application under Section 482 CrPC, the High Court\r\nin the present case travelled far away from the parameters for the exercise of the\r\njurisdiction. Essentially, the task before the High Court was to determine whether the\r\nallegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety did or did not prima facie\r\nconstitute an offence or make out a case against the accused. <br></b></p><p><b>28 The Single Judge, other than deciding on the merits of the case while\r\nexercising the power under Section 482 of the CrPC, has also made observations\r\ndiminishing the importance of mental health. The mental health of a person cannot\r\nbe compressed into a one size fits all approach.<br></b></p><p><b>29 The Single Judge has termed a person who decided to commit suicide a\r\n‘weakling’ and has also made observations on how the behavior of the deceased\r\nbefore he committed suicide was not that of a person who is depressed and\r\nsuffering from mental health issues. Behavioural scientists have initiated the\r\ndiscourse on the heterogeneity of every individual and have challenged the\r\ntraditional notion of ‘all humans behave alike’. Individual personality differences manifest as a variation in the behavior of people. Therefore, how an individual copes\r\nup with a threat- both physical and emotional, expressing (or refraining to express)\r\nlove, loss, sorrow and happiness, varies greatly in view of the multi-faceted nature of\r\nthe human mind and emotions. Thus, the observations describing the manner in\r\nwhich a depressed person ought to have behaved deeply diminishes the gravity of\r\nmental health issues. \r\n </b></p><p><b>31 For the above reasons, we allow the appeals and set aside the impugned\r\njudgment and order of the Single Judge of the High Court of Karnataka dated 29 May 2020. In the circumstances, the petition for quashing the FIR instituted by the\r\nrespondent-accused shall stand dismissed. \r\n </b><br></p>', '6c8fb009cd73ee656f449021d67df561.JPG', '90b4538a52c2048fcbba7cc336a0b60e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-31', 1, '', '', '2021-10-31 17:02:51', '2022-05-26 01:21:34'),
(1125, 'l2yyj8w7wzQOsmqQAKvNBb1zv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Penal Code. Mere dishonourment of cheque does NOT constitute an offence of fraud under Section 420. Supreme Court.   ', '<p><b>Sripati&nbsp;Singh vs&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The&nbsp;State&nbsp;of&nbsp;Jharkhand&nbsp;&amp;&nbsp;Anr<br></span>Criminal Appeal 1269-1270 of 2021 decided on 28 October 2021<br>Justice M.R. Shah and Justice A.S. Bopanna<br>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2020/920/920_2020_13_1501_31011_Judgement_28-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/920/920_2020_13_1501_31011_Judgement_28-Oct-2021.pdf</a></b></p><p><b>11. In the background of what has been taken note by us and the conclusion reached by the High Court, insofar as the&nbsp; High&nbsp; Court arriving&nbsp; at the&nbsp; conclusion&nbsp; that&nbsp; no&nbsp; case punishable under Section 420 IPC can be made out in these facts, we are in agreement with such conclusion. This is due to the fact that even as per the case of the appellant the&nbsp; &nbsp;amount&nbsp; &nbsp;advanced&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;appellant&nbsp; &nbsp;is&nbsp; &nbsp;towards&nbsp; &nbsp;the business&nbsp; &nbsp;transaction&nbsp; &nbsp;and&nbsp; &nbsp;a&nbsp; &nbsp;loan&nbsp; &nbsp;agreement&nbsp; &nbsp;had&nbsp; &nbsp;been entered&nbsp; &nbsp;into&nbsp; &nbsp;between&nbsp; &nbsp;the&nbsp; &nbsp;parties.&nbsp; &nbsp;Under&nbsp; &nbsp;the&nbsp; &nbsp;loan agreement, the period for repayment was agreed and the cheque&nbsp; &nbsp;had&nbsp; &nbsp;been&nbsp; &nbsp;issued&nbsp; &nbsp;to&nbsp; &nbsp;ensure&nbsp; &nbsp;repayment.&nbsp; &nbsp;It&nbsp; &nbsp;is&nbsp; &nbsp;no doubt true that the cheques when presented for realisation were dishonoured. The mere dishonourment of the cheque cannot&nbsp; &nbsp;be&nbsp; &nbsp;construed&nbsp; &nbsp;as&nbsp; &nbsp;an&nbsp; &nbsp;act&nbsp; &nbsp;on&nbsp; &nbsp;the&nbsp; &nbsp;part&nbsp; &nbsp;of&nbsp; &nbsp;the respondent No.2 with a deliberate intention to cheat and the&nbsp; mens rea&nbsp; in that regard cannot be gathered from the point the amount had been received. In the present facts and&nbsp; &nbsp;circumstances,&nbsp; &nbsp;there&nbsp; &nbsp;is&nbsp; &nbsp;no&nbsp; &nbsp;sufficient&nbsp; &nbsp;evidence&nbsp; &nbsp;to indicate the offence under Section 420 IPC is made out and therefore on that aspect, we see no reason to interfere with the conclusion reached by the High Court.</b></p><p><b>12. Having&nbsp; &nbsp;arrived&nbsp; &nbsp;at&nbsp; &nbsp;the&nbsp; &nbsp;above&nbsp; &nbsp;conclusion&nbsp; &nbsp;and&nbsp; &nbsp;also having taken note of the conclusion reached by the High Court as extracted above, it is noted that the High Court has itself arrived at the conclusion that the instant case becomes a simpliciter case of non­ refunding of loan which cannot be a basis for initiating criminal proceedings. The conclusion&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;extent&nbsp; &nbsp;of&nbsp; &nbsp;holding&nbsp; &nbsp;that&nbsp; &nbsp;it&nbsp; &nbsp;would&nbsp; &nbsp;not constitute&nbsp; &nbsp;an&nbsp; &nbsp;offence&nbsp; &nbsp;of&nbsp; &nbsp;cheating,&nbsp; &nbsp;as&nbsp; &nbsp;already&nbsp; &nbsp;indicated above would be justified.&nbsp;</b></p><p><b>16. A&nbsp; &nbsp;cheque&nbsp; &nbsp;issued&nbsp; &nbsp;as&nbsp; &nbsp;security&nbsp; &nbsp;pursuant&nbsp; &nbsp;to&nbsp; &nbsp;a financial&nbsp; &nbsp;transaction&nbsp; &nbsp;cannot&nbsp; &nbsp;be&nbsp; &nbsp;considered&nbsp; &nbsp;as&nbsp; &nbsp;a worthless&nbsp; &nbsp;piece&nbsp; &nbsp;of&nbsp; &nbsp;paper&nbsp; &nbsp;under&nbsp; &nbsp;every&nbsp; &nbsp;circumstance. ‘Security’ in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified timeframe and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which&nbsp; &nbsp;is&nbsp; &nbsp;issued&nbsp; &nbsp;as&nbsp; &nbsp;security&nbsp; &nbsp;would&nbsp; &nbsp;mature&nbsp; &nbsp;for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the&nbsp; &nbsp;same&nbsp; &nbsp;is&nbsp; &nbsp;dishonoured,&nbsp; &nbsp;the&nbsp; &nbsp;consequences contemplated&nbsp; &nbsp;under&nbsp; &nbsp;Section&nbsp; &nbsp;138&nbsp; &nbsp;and&nbsp; &nbsp;the&nbsp; &nbsp;other provisions of N.I. Act would flow.&nbsp;</b></p><p><b>17. When&nbsp; &nbsp;a&nbsp; &nbsp;cheque&nbsp; &nbsp;is&nbsp; &nbsp;issued&nbsp; &nbsp;and&nbsp; &nbsp;is&nbsp; &nbsp;treated&nbsp; &nbsp;as ‘security’ towards repayment of an amount with a time period being stipulated for repayment, all that it ensures is that such cheque which is issued as ‘security’ cannot be presented prior to the loan or the instalment maturing for repayment towards which such cheque is issued as security. Further, the borrower would have the option of repaying the loan amount or such financial liability in any other form and in that manner if the amount of loan due and payable has been discharged within the agreed period, the cheque issued as security cannot thereafter be presented. Therefore, the prior discharge of the loan or there being an altered situation due to which there would be understanding between the parties is a sine qua non to not present the cheque which was issued as security. These are only the defences that would be available to the drawer of the cheque in a proceedings initiated under Section 138 of the N.I. Act. Therefore, there cannot be a hard and fast rule that a cheque which is issued as security can never be presented by the drawee of the cheque. If such is the understanding a cheque would also be reduced to an ‘on demand promissory note’ and in all circumstances,&nbsp; &nbsp;it&nbsp; &nbsp;would&nbsp; &nbsp;only&nbsp; &nbsp;be&nbsp; &nbsp;a&nbsp; &nbsp;civil&nbsp; &nbsp;litigation&nbsp; &nbsp;to recover the amount, which is not the intention of the statute.&nbsp; &nbsp;When&nbsp; &nbsp;a&nbsp; &nbsp;cheque&nbsp; &nbsp;is&nbsp; &nbsp;issued&nbsp; &nbsp;even&nbsp; &nbsp;though&nbsp; &nbsp;as ‘security’&nbsp; &nbsp;the&nbsp; &nbsp;consequence&nbsp; &nbsp;flowing&nbsp; &nbsp;therefrom&nbsp; &nbsp;is&nbsp; &nbsp;also known&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;drawer&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;cheque&nbsp; &nbsp;and&nbsp; &nbsp;in&nbsp; &nbsp;the circumstance stated above if the cheque is presented and dishonoured,&nbsp; &nbsp;the&nbsp; &nbsp;holder&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;cheque/drawee&nbsp; &nbsp;would have&nbsp; &nbsp;the&nbsp; &nbsp;option&nbsp; &nbsp;of&nbsp; &nbsp;initiating&nbsp; &nbsp;the&nbsp; &nbsp;civil&nbsp; &nbsp;proceedings&nbsp; &nbsp;for recovery or the criminal proceedings for punishment in the fact situation, but in any event, it is not for the drawer of the cheque to dictate terms with regard to the nature of litigation.&nbsp;</b></p><p><b>19. In the background of the factual and legal position taken note supra, in the instant facts, the appellant cannot be non­suited for proceeding with the complaint filed under Section 138 of N.I. Act merely due to the fact that the cheques&nbsp; &nbsp;presented&nbsp; &nbsp;and&nbsp; &nbsp;dishonoured&nbsp; &nbsp;are&nbsp; &nbsp;shown&nbsp; &nbsp;to&nbsp; &nbsp;have been issued as security, as indicated in the loan agreement. In&nbsp; &nbsp;our&nbsp; &nbsp;opinion,&nbsp; &nbsp;such&nbsp; &nbsp;contention&nbsp; &nbsp;would&nbsp; &nbsp;arise&nbsp; &nbsp;only&nbsp; &nbsp;in&nbsp; &nbsp;a circumstance where the debt has not become recoverable and the cheque issued as security has not matured to be presented for recovery of the amount, if the due date agreed for payment of debt has not arrived. In the instant facts, as noted, the repayment as agreed by the respondent No.2 is during June/July 2015. The cheque has been presented by the appellant for realisation on 20.10.2015. As on the date of presentation of the cheque for realisation the repayment of the amount as agreed under the loan agreement had matured and the amount had become due and payable. Therefore, to contend that the cheque should be held as security&nbsp; &nbsp;even&nbsp; &nbsp;after&nbsp; &nbsp;the&nbsp; &nbsp;amount&nbsp; &nbsp;had&nbsp; &nbsp;become&nbsp; &nbsp;due&nbsp; &nbsp;and payable is not sustainable.</b></p><p><b>21. In the above circumstance, the cheque though issued as security at the point when the loan was advanced, it was issued as an assurance to repay the amount after the debt becomes due for repayment. The loan was in subsistence when the cheque was issued and had become repayable during&nbsp; &nbsp;June/July&nbsp; 2015&nbsp; and&nbsp; &nbsp;the&nbsp; cheque&nbsp; &nbsp;issued&nbsp; &nbsp;towards repayment was agreed to be presented thereafter. If the amount was not paid in any other mode before June/July 2015, it was incumbent on the respondent No.2 to arrange sufficient&nbsp; balance&nbsp; in the&nbsp; account to honour the&nbsp; cheque which was to be presented subsequent to June/July 2015.</b></p><p><b>23. In that view, the order dated 17.12.2019 passed by the High Court of Jharkhand in Cr.M.P No.2635 of 2017 with Cr.M.P No.2655 of 2017 are set aside. Consequently, the order dated 04.07.2016 and 13.06.2019 passed by the Judicial&nbsp; &nbsp;Magistrate&nbsp; &nbsp;are&nbsp; &nbsp;restored.&nbsp; &nbsp;The&nbsp; &nbsp;complaint&nbsp; &nbsp;bearing C.C. No.1839 of 2015 and 1833 of 2015 are restored to the file&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Judicial&nbsp; &nbsp;Magistrate,&nbsp; &nbsp;limited&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;complaint under Section 138 of N.I. Act to be proceeded in accordance with law.&nbsp;&nbsp;</b></p>', 'f590d5a9924ee167547de1d4dca4018b.jpg', '9aafaba71f23ba46951bdcee4da13e9f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-31', 1, '', '', '2021-10-31 17:34:17', '2021-10-31 17:34:17'),
(1126, '3ydMxaR6CDvMRCgie4mMKSx30', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Dishonour of cheque issued as \'security\' towards loan borrowed constitutes an offence under Section 138 if the cheque is presented when the loan is matured for repayment.  Supreme Court. ', '<p><b>Sripati Singh vs The State of Jharkhand &amp; Anr</b></p><p><b>Criminal Appeal 1269-1270 of 2021 decided on 28 October 2021</b></p><p><b>Justice M.R. Shah and Justice A.S. Bopanna</b></p><p></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/920/920_2020_13_1501_31011_Judgement_28-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/920/920_2020_13_1501_31011_Judgement_28-Oct-2021.pdf</a></b></p><p><b>11. In the background of what has been taken note by us and the conclusion reached by the High Court, insofar as the&nbsp; High&nbsp; Court arriving&nbsp; at the&nbsp; conclusion&nbsp; that&nbsp; no&nbsp; case punishable under Section 420 IPC can be made out in these facts, we are in agreement with such conclusion. This is due to the fact that even as per the case of the appellant the&nbsp; &nbsp;amount&nbsp; &nbsp;advanced&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;appellant&nbsp; &nbsp;is&nbsp; &nbsp;towards&nbsp; &nbsp;the business&nbsp; &nbsp;transaction&nbsp; &nbsp;and&nbsp; &nbsp;a&nbsp; &nbsp;loan&nbsp; &nbsp;agreement&nbsp; &nbsp;had&nbsp; &nbsp;been entered&nbsp; &nbsp;into&nbsp; &nbsp;between&nbsp; &nbsp;the&nbsp; &nbsp;parties.&nbsp; &nbsp;Under&nbsp; &nbsp;the&nbsp; &nbsp;loan agreement, the period for repayment was agreed and the cheque&nbsp; &nbsp;had&nbsp; &nbsp;been&nbsp; &nbsp;issued&nbsp; &nbsp;to&nbsp; &nbsp;ensure&nbsp; &nbsp;repayment.&nbsp; &nbsp;It&nbsp; &nbsp;is&nbsp; &nbsp;no doubt true that the cheques when presented for realisation were dishonoured. The mere dishonourment of the cheque cannot&nbsp; &nbsp;be&nbsp; &nbsp;construed&nbsp; &nbsp;as&nbsp; &nbsp;an&nbsp; &nbsp;act&nbsp; &nbsp;on&nbsp; &nbsp;the&nbsp; &nbsp;part&nbsp; &nbsp;of&nbsp; &nbsp;the respondent No.2 with a deliberate intention to cheat and the&nbsp; mens rea&nbsp; in that regard cannot be gathered from the point the amount had been received. In the present facts and&nbsp; &nbsp;circumstances,&nbsp; &nbsp;there&nbsp; &nbsp;is&nbsp; &nbsp;no&nbsp; &nbsp;sufficient&nbsp; &nbsp;evidence&nbsp; &nbsp;to indicate the offence under Section 420 IPC is made out and therefore on that aspect, we see no reason to interfere with the conclusion reached by the High Court.</b></p><p><b>12. Having&nbsp; &nbsp;arrived&nbsp; &nbsp;at&nbsp; &nbsp;the&nbsp; &nbsp;above&nbsp; &nbsp;conclusion&nbsp; &nbsp;and&nbsp; &nbsp;also having taken note of the conclusion reached by the High Court as extracted above, it is noted that the High Court has itself arrived at the conclusion that the instant case becomes a simpliciter case of non­refunding of loan which cannot be a basis for initiating criminal proceedings. The conclusion&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;extent&nbsp; &nbsp;of&nbsp; &nbsp;holding&nbsp; &nbsp;that&nbsp; &nbsp;it&nbsp; &nbsp;would&nbsp; &nbsp;not constitute&nbsp; &nbsp;an&nbsp; &nbsp;offence&nbsp; &nbsp;of&nbsp; &nbsp;cheating,&nbsp; &nbsp;as&nbsp; &nbsp;already&nbsp; &nbsp;indicated above would be justified.&nbsp;</b></p><p><b>16. A&nbsp; &nbsp;cheque&nbsp; &nbsp;issued&nbsp; &nbsp;as&nbsp; &nbsp;security&nbsp; &nbsp;pursuant&nbsp; &nbsp;to&nbsp; &nbsp;a financial&nbsp; &nbsp;transaction&nbsp; &nbsp;cannot&nbsp; &nbsp;be&nbsp; &nbsp;considered&nbsp; &nbsp;as&nbsp; &nbsp;a worthless&nbsp; &nbsp;piece&nbsp; &nbsp;of&nbsp; &nbsp;paper&nbsp; &nbsp;under&nbsp; &nbsp;every&nbsp; &nbsp;circumstance. ‘Security’ in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified timeframe and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which&nbsp; &nbsp;is&nbsp; &nbsp;issued&nbsp; &nbsp;as&nbsp; &nbsp;security&nbsp; &nbsp;would&nbsp; &nbsp;mature&nbsp; &nbsp;for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the&nbsp; &nbsp;same&nbsp; &nbsp;is&nbsp; &nbsp;dishonoured,&nbsp; &nbsp;the&nbsp; &nbsp;consequences contemplated&nbsp; &nbsp;under&nbsp; &nbsp;Section&nbsp; &nbsp;138&nbsp; &nbsp;and&nbsp; &nbsp;the&nbsp; &nbsp;other provisions of N.I. Act would flow.&nbsp;</b></p><p><b>17. When&nbsp; &nbsp;a&nbsp; &nbsp;cheque&nbsp; &nbsp;is&nbsp; &nbsp;issued&nbsp; &nbsp;and&nbsp; &nbsp;is&nbsp; &nbsp;treated&nbsp; &nbsp;as ‘security’ towards repayment of an amount with a time period being stipulated for repayment, all that it ensures is that such cheque which is issued as ‘security’ cannot be presented prior to the loan or the instalment maturing for repayment towards which such cheque is issued as security. Further, the borrower would have the option of repaying the loan amount or such financial liability in any other form and in that manner if the amount of loan due and payable has been discharged within the agreed period, the cheque issued as security cannot thereafter be presented. Therefore, the prior discharge of the loan or there being an altered situation due to which there would be understanding between the parties is a sine qua non to not present the cheque which was issued as security. These are only the defences that would be available to the drawer of the cheque in a proceedings initiated under Section 138 of the N.I. Act. Therefore, there cannot be a hard and fast rule that a cheque which is issued as security can never be presented by the drawee of the cheque. If such is the understanding a cheque would also be reduced to an ‘on demand promissory note’ and in all circumstances,&nbsp; &nbsp;it&nbsp; &nbsp;would&nbsp; &nbsp;only&nbsp; &nbsp;be&nbsp; &nbsp;a&nbsp; &nbsp;civil&nbsp; &nbsp;litigation&nbsp; &nbsp;to recover the amount, which is not the intention of the statute.&nbsp; &nbsp;When&nbsp; &nbsp;a&nbsp; &nbsp;cheque&nbsp; &nbsp;is&nbsp; &nbsp;issued&nbsp; &nbsp;even&nbsp; &nbsp;though&nbsp; &nbsp;as ‘security’&nbsp; &nbsp;the&nbsp; &nbsp;consequence&nbsp; &nbsp;flowing&nbsp; &nbsp;therefrom&nbsp; &nbsp;is&nbsp; &nbsp;also known&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;drawer&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;cheque&nbsp; &nbsp;and&nbsp; &nbsp;in&nbsp; &nbsp;the circumstance stated above if the cheque is presented and dishonoured,&nbsp; &nbsp;the&nbsp; &nbsp;holder&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;cheque/drawee&nbsp; &nbsp;would have&nbsp; &nbsp;the&nbsp; &nbsp;option&nbsp; &nbsp;of&nbsp; &nbsp;initiating&nbsp; &nbsp;the&nbsp; &nbsp;civil&nbsp; &nbsp;proceedings&nbsp; &nbsp;for recovery or the criminal proceedings for punishment in the fact situation, but in any event, it is not for the drawer of the cheque to dictate terms with regard to the nature of litigation.&nbsp;</b></p><p><b>19. In the background of the factual and legal position taken note supra, in the instant facts, the appellant cannot be non­suited for proceeding with the complaint filed under Section 138 of N.I. Act merely due to the fact that the cheques&nbsp; &nbsp;presented&nbsp; &nbsp;and&nbsp; &nbsp;dishonoured&nbsp; &nbsp;are&nbsp; &nbsp;shown&nbsp; &nbsp;to&nbsp; &nbsp;have been issued as security, as indicated in the loan agreement. In&nbsp; &nbsp;our&nbsp; &nbsp;opinion,&nbsp; &nbsp;such&nbsp; &nbsp;contention&nbsp; &nbsp;would&nbsp; &nbsp;arise&nbsp; &nbsp;only&nbsp; &nbsp;in&nbsp; &nbsp;a circumstance where the debt has not become recoverable and the cheque issued as security has not matured to be presented for recovery of the amount, if the due date agreed for payment of debt has not arrived. In the instant facts, as noted, the repayment as agreed by the respondent No.2 is during June/July 2015. The cheque has been presented by the appellant for realisation on 20.10.2015. As on the date of presentation of the cheque for realisation the repayment of the amount as agreed under the loan agreement had matured and the amount had become due and payable. Therefore, to contend that the cheque should be held as security&nbsp; &nbsp;even&nbsp; &nbsp;after&nbsp; &nbsp;the&nbsp; &nbsp;amount&nbsp; &nbsp;had&nbsp; &nbsp;become&nbsp; &nbsp;due&nbsp; &nbsp;and payable is not sustainable.</b></p><p><b>21. In the above circumstance, the cheque though issued as security at the point when the loan was advanced, it was issued as an assurance to repay the amount after the debt becomes due for repayment. The loan was in subsistence when the cheque was issued and had become repayable during&nbsp; &nbsp;June/July&nbsp; 2015&nbsp; and&nbsp; &nbsp;the&nbsp; cheque&nbsp; &nbsp;issued&nbsp; &nbsp;towards repayment was agreed to be presented thereafter. If the amount was not paid in any other mode before June/July 2015, it was incumbent on the respondent No.2 to arrange sufficient&nbsp; balance&nbsp; in the&nbsp; account to honour the&nbsp; cheque which was to be presented subsequent to June/July 2015.</b></p><p><b>23. In that view, the order dated 17.12.2019 passed by the High Court of Jharkhand in Cr.M.P No.2635 of 2017 with Cr.M.P No.2655 of 2017 are set aside. Consequently, the order dated 04.07.2016 and 13.06.2019 passed by the Judicial&nbsp; &nbsp;Magistrate&nbsp; &nbsp;are&nbsp; &nbsp;restored.&nbsp; &nbsp;The&nbsp; &nbsp;complaint&nbsp; &nbsp;bearing C.C. No.1839 of 2015 and 1833 of 2015 are restored to the file&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Judicial&nbsp; &nbsp;Magistrate,&nbsp; &nbsp;limited&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;complaint under Section 138 of N.I. Act to be proceeded in accordance with law.&nbsp;&nbsp;</b></p>', '525f7e1744356a2bb46ae67cec1b089c.JPG', '77efce8b1c4fcf217e781dfd8aafc2f5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-31', 1, '', '', '2021-10-31 17:44:44', '2021-10-31 17:44:44');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1127, 'egSXktHIJhisVPOYDeczPa5xR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Waft Act, 1995. Suit for injunction in respect of Wakf property can be filed only before the Wakf Tribunal and the Civil Court has no jurisdiction to entertain such a suit. Supreme Court. ', '<p><b>Rashid Wali Beg vs Farid Pindari and others.&nbsp;<br>Civil Appeal 6336 of 2021 decided on 28 October 2021<br>Justice Hemant Gupta and Justice V. Ramasubramanian<br>Judgment Link:</b>&nbsp;<b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"https://main.sci.gov.in/supremecourt/2015/8683/8683_2015_11_1501_30909_Judgement_28-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2015/8683/8683_2015_11_1501_30909_Judgement_28-Oct-2021.pdf</a></b></p><p><b>Aggrieved by the Judgment of the High Court of Judicature at&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Allahabad,&nbsp; &nbsp;Lucknow&nbsp; &nbsp;Bench,&nbsp; &nbsp;holding&nbsp; &nbsp;that&nbsp; &nbsp;a&nbsp; &nbsp;suit&nbsp; for&nbsp; a&nbsp; permanent&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">injunction before a civil court is not barred by Section 85 of the Waqf Act, 1995 (for short&nbsp; “the Act”), the defendant has come up with the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">above appeal.</b></p><p><b>8. The question of jurisdiction of civil courts to adjudicate upon disputes,&nbsp; &nbsp;for&nbsp; &nbsp;the&nbsp; &nbsp;determination&nbsp; &nbsp;of&nbsp; &nbsp;which&nbsp; &nbsp;special&nbsp; tribunals&nbsp; &nbsp;are constituted under special statutes, has been a vexed question which has&nbsp; &nbsp;turned,&nbsp; &nbsp;over&nbsp; &nbsp;a&nbsp; &nbsp;period&nbsp; &nbsp;of&nbsp; time,&nbsp; into&nbsp; a&nbsp; seesaw&nbsp; &nbsp;battle.&nbsp; This&nbsp; &nbsp;is especially so particularly in respect of waqfs. But there is a historical background to this.&nbsp; &nbsp;</b></p><p><b>17. It is relevant to note at this stage that the words “eviction&nbsp; of tenant or determination of rights and obligations of the lessor and the lessee of such property” were inserted in sub­section (1) of Section 83, after the words “waqf property”, by Amendment Act 27 of 2013.&nbsp;</b></p><p><b>18. Similarly, the words, “civil court” were substituted by the words “civil court, revenue court and other authority”, in Section 85, by Amendment Act 27 of 2013.&nbsp;</b></p><p><b>19. Thus,&nbsp; &nbsp;Act&nbsp; &nbsp;27&nbsp; &nbsp;of&nbsp; &nbsp;2013&nbsp; &nbsp;did&nbsp; &nbsp;2&nbsp; &nbsp;things.&nbsp; &nbsp;First&nbsp; &nbsp;it&nbsp; &nbsp;expanded&nbsp; &nbsp;the jurisdiction of Waqf Tribunal even to cover landlord tenant disputes and&nbsp; &nbsp;the&nbsp; &nbsp;rights&nbsp; &nbsp;and&nbsp; &nbsp;obligations&nbsp; &nbsp;of&nbsp; &nbsp;lessor&nbsp; &nbsp;and&nbsp; &nbsp;lessee.&nbsp; &nbsp;Second,&nbsp; &nbsp;the Amendment Act enlarged the bar of jurisdiction, to cover even revenue courts and other authorities.&nbsp;</b></p><p><b>20. Sub­section&nbsp; &nbsp;(2)&nbsp; &nbsp;of&nbsp; &nbsp;Section&nbsp; &nbsp;83&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;1995&nbsp; &nbsp;Act&nbsp; &nbsp;indicates&nbsp; &nbsp;the persons who are entitled to invoke the jurisdiction of the Tribunal. They are, (i) any mutawalli of the waqf; (ii) a person interested in the waqf; or (iii) any other person aggrieved by any order made under the Act or Rules or any order made there under.</b></p><p><b>21. Dehors&nbsp; the&nbsp; &nbsp;jurisdiction&nbsp; &nbsp;conferred&nbsp; &nbsp;upon&nbsp; &nbsp;the&nbsp; &nbsp;Tribunal&nbsp; &nbsp;under Section 83(1) and&nbsp; dehors&nbsp; the bar of jurisdiction of the civil court, revenue court and any other authority under Section 85, the 1995 Act contains a special provision in Section 86 for the appointment by the civil court, of a Receiver, in certain cases.&nbsp;</b></p><p><b>22. Section 86 thus recognises the right of the Board to institute or commence any suit or other legal proceeding, (i) to set aside the sale of a waqf property in execution of a decree of civil court; (ii) to set aside the transfer of any waqf property made by the mutawalli, without the sanction&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Board&nbsp; &nbsp;or&nbsp; &nbsp;otherwise&nbsp; &nbsp;than&nbsp; &nbsp;in&nbsp; &nbsp;accordance&nbsp; &nbsp;with&nbsp; &nbsp;the sanction of the Board; and&nbsp; (iii)&nbsp; to recover and restore possession of such property to the mutawalli. Clause (b) of Section 86 recognises a similar right for the mutawalli to recover possession of waqf property, which has been transferred by the previous mutawalli or any other person without the sanction of the Board.</b></p><p><b>23. It&nbsp; &nbsp;is&nbsp; &nbsp;therefore&nbsp; &nbsp;clear&nbsp; &nbsp;from&nbsp; &nbsp;Section&nbsp; &nbsp;86,&nbsp; &nbsp;that&nbsp; &nbsp;in&nbsp; &nbsp;suits&nbsp; &nbsp;or&nbsp; &nbsp;other proceedings instituted by the Board falling under clause (a) or those instituted by the mutawalli falling under clause (b) of Section 86, the civil court will have jurisdiction to appoint a receiver. As a corollary, the bar under Section 85 will have no application to cases covered by Section 86.</b></p><p><b>24. Apart from the bar of jurisdiction of civil courts under Section 85, the Act envisages yet another bar under Section 88. Section 88 excludes the jurisdiction of a civil court to entertain a challenge to any&nbsp; notification or order or decision made, proceeding or action taken by the&nbsp; &nbsp;Central&nbsp; &nbsp;Government&nbsp; &nbsp;or&nbsp; &nbsp;the&nbsp; &nbsp;State&nbsp; &nbsp;Government&nbsp; &nbsp;under&nbsp; &nbsp;the&nbsp; &nbsp;Act.</b></p><p><b>26. It is seen from sub­section (1) of Section 90 that it uses the words, “the court or Tribunal” and it refers to suit or proceeding relating to title to or possession of a waqf property or the right of the mutawalli or beneficiary.</b></p><p><b>27. A cumulative reading of Sections 86, 89 and 90 would show that the bar of jurisdiction under Section 85 is not total and omnipotent and that there may be cases which could still be entertained by civil courts. In fact, Section 93 which prohibits the mutawalli from entering into a compromise with the opposite party in any suit, also refers to “court”.</b></p><p><b>29. In view of the language employed in Sections 83 and 85, coupled with the reference to civil courts in Sections 86, 90 and 93, it appears that the question of bar of jurisdiction of the civil court, has been left by the law makers to the vagaries of judicial opinion and this has given rise to conflicting decisions.</b></p><p><b>43. In sum and substance, the Act makes a reference, to 3 types of remedies,&nbsp; &nbsp;namely&nbsp; &nbsp;that&nbsp; &nbsp;of&nbsp; &nbsp;a&nbsp; &nbsp;suit,&nbsp; &nbsp;application&nbsp; &nbsp;or&nbsp; &nbsp;appeal&nbsp; &nbsp;before&nbsp; &nbsp;the Tribunal, in respect of the following matters:­</b></p><p><b>(i) Any question or dispute whether a property specified as waqf property in the list of waqfs is a waqf property or not [Sections 6(1) &amp; 7(1)]; (ii) A question or dispute whether a waqf specified in the list of waqfs is a Shia Waqf or Sunni Waqf [Sections 6(1) &amp; 7(1)]; (iii) Challenge to the settlement of a scheme for management of the waqf or any direction issued in relation to such management [Section 32(3)]; (iv) Challenge&nbsp; &nbsp;to&nbsp; &nbsp;an&nbsp; &nbsp;order&nbsp; &nbsp;for&nbsp; &nbsp;restitution/restoration&nbsp; &nbsp;of&nbsp; &nbsp;the property of the waqf or an order for payment to the waqf of any amount misappropriated or fraudulently retained by the mutawalli [Section 33(4)]; (v) Conditional attachment of the property of a mutawalli or any other person [Section 35(1)]; (vi) Challenge&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;removal&nbsp; &nbsp;or&nbsp; &nbsp;dismissal&nbsp; &nbsp;of&nbsp; &nbsp;an&nbsp; &nbsp;Executive Officer or member of the staff [Section 38(7)]; (vii) Application by the Board, seeking an order for recovery of possession of a property earlier used for religious purpose but later ceased to be used as such [Section 39(3)]; (viii)&nbsp; Challenge to a direction issued by the Board to any Trust or Society to get it registered [Section 40(4)]; (ix) Challenge&nbsp; &nbsp;to&nbsp; &nbsp;an&nbsp; &nbsp;order&nbsp; &nbsp;for&nbsp; &nbsp;recovery&nbsp; &nbsp;of&nbsp; &nbsp;money&nbsp; &nbsp;from&nbsp; &nbsp;the mutawalli, as certified by the Auditor [Section 48(2)]; (x) Challenge&nbsp; &nbsp;to&nbsp; &nbsp;an&nbsp; &nbsp;order&nbsp; &nbsp;for&nbsp; &nbsp;delivery&nbsp; &nbsp;of&nbsp; &nbsp;possession&nbsp; &nbsp;of&nbsp; a property issued by the Collector [Section 52(4)]; (xi) Application by the Chief Executive Officer for the removal of encroachment&nbsp; &nbsp;and&nbsp; &nbsp;for&nbsp; &nbsp;delivery&nbsp; &nbsp;of&nbsp; &nbsp;possession&nbsp; &nbsp;of&nbsp; &nbsp;a&nbsp; &nbsp;waqf&nbsp; &nbsp;property (Section 54(3)]; (xii) Challenge to the removal of mutawalli from office [Section 64(4)]; (xiii)&nbsp; &nbsp;Challenge&nbsp; &nbsp;to&nbsp; &nbsp;an&nbsp; &nbsp;order&nbsp; &nbsp;superseding&nbsp; &nbsp;the&nbsp; &nbsp;Committee&nbsp; &nbsp;of Management [Section67(4)]; (xiv) Challenge to the removal of a member of the Committee of Management [Section 67(6)]; (xv) Challenge&nbsp; &nbsp;to&nbsp; &nbsp;any&nbsp; &nbsp;scheme&nbsp; &nbsp;framed&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;Board&nbsp; &nbsp;for&nbsp; &nbsp;the administration of waqf, containing a provision for the removal of the mutawalli&nbsp; &nbsp;and&nbsp; &nbsp;the&nbsp; &nbsp;appointment&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;person&nbsp; &nbsp;next&nbsp; &nbsp;in&nbsp; &nbsp;hereditary succession [Section 69(3)]; (xvi)&nbsp; &nbsp;Challenge to an order for recovery of contribution payable by the waqf to the Board, from out of the monies lying in a bank [Section 73(3)]; (xvii)&nbsp; any dispute, question or other matter relating to a waqf {section 83(1)} (xviii)&nbsp; any dispute, question or other matter relating to a waqf property {section 83(1)} (xix)&nbsp; eviction&nbsp; &nbsp;of&nbsp; &nbsp;a&nbsp; &nbsp;tenant&nbsp; &nbsp;or&nbsp; &nbsp;determination&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;rights&nbsp; &nbsp;and obligations of lessor and lessee of waqf property {section 83(1) after its amendment under Act 27 of 2013 }&nbsp; (xx) Whenever a mutawalli fails to perform an act or duty which he is liable to perform [Section 94].</b></p><p><b>45. A combined reading of Sections 68(6), 86, 90 and 93 goes to show that the bar of jurisdiction under Section 85 does not apply at least to the following matters, covered by Sections 68(6), 86 and 90 :</b></p><p><b>(i) Whenever a District Magistrate passes an order directing the&nbsp; &nbsp;removed&nbsp; &nbsp;mutawalli&nbsp; &nbsp;or&nbsp; &nbsp;removed&nbsp; &nbsp;members&nbsp; &nbsp;of&nbsp; &nbsp;a&nbsp; &nbsp;Committee&nbsp; &nbsp;of Management&nbsp; &nbsp;to&nbsp; &nbsp;deliver&nbsp; &nbsp;possession&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;records,&nbsp; &nbsp;accounts&nbsp; &nbsp;and properties of the waqf, to the successor or successor Committee of Management, any person claiming that he has right, title and interest in the properties specified in the order so passed by the Magistrate can approach a civil court; (ii) The Board itself may approach a civil court either to set aside the sale in execution of a decree of civil court, of an immovable property which is a waqf property, or to set aside the transfer of any immovable property made by the mutawalli without the sanction of the&nbsp; &nbsp;Board&nbsp; &nbsp;or&nbsp; &nbsp;to&nbsp; &nbsp;recover&nbsp; &nbsp;possession&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;property&nbsp; &nbsp;so&nbsp; &nbsp;sold&nbsp; &nbsp;or transferred, as the case may be; (iii) The mutawalli is also empowered to approach the civil court to recover possession of any immovable property which is a waqf property, but which had been transferred by the previous mutawalli without the sanction of the Board (this is implicit in Section 86); (iv) A waqf property can be brought to sale in execution of a decree of a civil court or for the recovery of any revenue, cess, rates or taxes&nbsp; &nbsp;due&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;Government&nbsp; &nbsp;or&nbsp; &nbsp;any&nbsp; &nbsp;local&nbsp; &nbsp;authority,&nbsp; &nbsp;but&nbsp; &nbsp;such&nbsp; &nbsp;a proceeding will be void if no notice thereof is given to the Board [this is implicit in Sections 90(2) &amp; (3)].</b></p><p><b>46. Thus the Act itself has created some confusion, leaving the rest to the courts to compound the conundrum. Sadly, the Amendment Act 27 of 2013 also did not address the problem fully.</b></p><p><b>50. The approach of the High Court, in our considered view, is not in tune with the law. The question as to whether the suit for perpetual injunction is maintainable before the Waqf Tribunal or not, is already answered in Akkode Jumayath Palli Paripalana Committee. This Court, pointed&nbsp; &nbsp;out&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;said&nbsp; &nbsp;decision&nbsp; &nbsp;that&nbsp; Ramesh&nbsp; &nbsp;Gobindram&nbsp; was distinguished in Anis Fatma Begum,&nbsp; and that therefore the Tribunal had&nbsp; &nbsp;jurisdiction&nbsp; &nbsp;to&nbsp; &nbsp;entertain&nbsp; &nbsp;a&nbsp; &nbsp;suit&nbsp; &nbsp;for&nbsp; &nbsp;perpetual&nbsp; &nbsp;injunction.&nbsp; &nbsp;But unfortunately, this decision rendered by this Court on 23.07.2013 does not appear to have been brought to the notice of the High Court.</b></p><p><b>56. In the&nbsp; case on&nbsp; hand, the property is admitted to&nbsp; be a waqf property. Therefore, to allow the plaintiff to ignore the Waqf Tribunal and&nbsp; &nbsp;to&nbsp; &nbsp;seek&nbsp; &nbsp;a&nbsp; &nbsp;decree&nbsp; &nbsp;of&nbsp; &nbsp;permanent&nbsp; &nbsp;injunction&nbsp; &nbsp;and&nbsp; &nbsp;mandatory injunction from a civil court, would be ignore the mandate of section 83 and 85 which speak of any dispute, question or other matter relating to a waqf or a waqf property.&nbsp;</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b>&nbsp;</b></p>', '0eb1b427c0bcee075311282fd4090fc6.JPG', '13a025d293edc1a6704e70108c2f2740.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-31', 1, '', '', '2021-10-31 23:59:25', '2021-10-31 23:59:25'),
(1128, 'zhJBm27TtnwleKfBqNvctCv0G', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act, 1988. The extent of economic loss cannot be measured in proportion to the extent of permanent disability. Supreme Court assesses functional disability at 100% in a case of 69% physical disability.   ', '<p><b>Jithendran vs The New India Assurance Co. Ltd and another <br>Civil Appeal 6494 of 2021 decided on 27 October 2021<br>Justice R. Subhash Reddy and Justice Hrishikesh Roy<br>Judgment Link: <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"https://main.sci.gov.in/supremecourt/2019/13908/13908_2019_12_1501_30892_Judgement_27-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/13908/13908_2019_12_1501_30892_Judgement_27-Oct-2021.pdf</a></span></b></p><p><b>11. The Motor Vehicles Act is in the nature of social\r\nwelfare legislation and its provisions make it clear\r\nthat the compensation should be justly determined. Justice A.P. Misra in Helen C. Rebello and Others\r\nv. Maharashtra SRTC and Anr. (1999) 1 SCC 90, held the following on the\r\ncontours of ‘just’ compensation,\r\n</b></p><p><b><i>“The word “just”, as its nomenclature, denotes\r\nequitability, fairness and reasonableness having a\r\nlarge peripheral field. The largeness is, of\r\ncourse, not arbitrary; it is restricted by the\r\nconscience which is fair, reasonable and\r\nequitable, if it exceeds; it is termed as unfair,\r\nunreasonable, unequitable, not just.”\r\n</i><br></b></p><p><b>A person therefore is not only to be compensated\r\nfor the injury suffered due to the accident but also\r\nfor the loss suffered on account of the injury and his\r\ninability to lead the life he led, prior to the life altering event. Justice D.Y. Chandrachud speaking for a\r\nthree judges’ bench in Jagdish Vs. Mohan and others (2018) 4 SCC 571\r\nmakes the following relevant observation on the\r\nintrinsic value of human life and dignity that is\r\nattempted to be recognised, through such compensatory\r\nawards,\r\n</b></p><p><b><i>“…the measure of compensation must reflect a\r\ngenuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation\r\nshould not be so abysmal as to lead one to\r\nquestion whether our law values human life. If it\r\ndoes, as it must, it must provide a realistic\r\nrecompense for the pain of loss and the trauma of\r\nsuffering. Awards of compensation are not law\'s\r\ndoles. In a discourse of rights, they constitute\r\nentitlements under law.”</i></b></p><p><b>12. The Courts should strive to provide a realistic\r\nrecompense having regard to the realities of life, both\r\nin terms of assessment of the extent of disabilities\r\nand its impact including the income generating capacity\r\nof the claimant. In cases of similar nature, wherein\r\nthe claimant is suffering severe cognitive dysfunction\r\nand restricted mobility, the Courts should be mindful\r\nof the fact that even though the physical disability is\r\nassessed at 69%, the functional disability is 100% in\r\nso far as claimant’s loss of earning capacity is\r\nconcerned. <br></b></p><p><b>13. The extent of economic loss arising from a\r\ndisability may not be measured in proportions to the\r\nextent of permanent disability. <br></b></p><p><b>16. As noted earlier, the impact on the earning\r\ncapacity for the claimant by virtue of his 69% disability must not be measured as a proportionate loss\r\nof his earning capacity. The earning life for\r\nthe appellant is over and as such his income loss has to\r\nbe quantified as 100%. There is no other way to assess\r\nthe earning loss since the appellant is incapacitated\r\nfor life and is confined to home. In such\r\ncircumstances, his loss of earning capacity must be\r\nfixed at 100%.<br></b></p><p><b>\r\n19. Before parting, it needs emphasizing that in cases\r\nsuch as this, the Tribunal and the Courts must be\r\nconscious of the fact that the permanent disability suffered by the individual not only impairs his\r\ncognitive abilities and his physical facilities but\r\nthere are multiple other non-quantifiable implications\r\nfor the victim. The very fact that a healthy person\r\nturns into an invalid, being deprived of normal\r\ncompanionship, and incapable of leading a productive\r\nlife, makes one suffer the loss of self-dignity. Such a\r\nClaimant must not be viewed as a modern day Oliver\r\nTwist, having to make entreaties as the boy in the\r\norphanage in Charles Dickens’s classic, “Please Sir, I\r\nwant some more”. The efforts must be to substantially\r\nameliorate the misery of the claimant and recognize his\r\nactual needs by accounting for the ground realities.\r\nThe measures should however be in correct proportion.<br></b></p><p><b>20. With the above observation and enhancement of\r\ncompensation, the claimant’s appeal stands allowed. The\r\nimpugned judgment of the High Court stands modified to\r\nthe extent indicated above. The parties to bear their\r\nrespective cost. <br></b></p><p><br></p>', '7db00afaf3e61891a1da5ef7a345a74d.jpeg', '80399ee2ba1aabde3a66a784bff733c8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-31', 1, '', '', '2021-11-01 00:46:17', '2021-11-01 00:48:21'),
(1129, 'oWpVWEKcbEAMOza9TE3CiGnU9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'State must justify surveillance or spying done on individual on constitutional grounds since the right to privacy is directly infringed when there is surveillance or spying either by the State or any external agency. Supreme Court. ', '<p><b>Manohar Lal Sharma vs Union of India and Others.&nbsp;<br>Writ Petition 314 of 2021 decided on 27 October 2021<br>Chief Justice N.V. Ramana, Justice Surya Kant and Justice Hima Kohli.<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/16884/16884_2021_1_1501_30827_Judgement_27-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/16884/16884_2021_1_1501_30827_Judgement_27-Oct-2021.pdf</a></b><b><br></b></p><p><b>35. The right to privacy is directly infringed when there is surveillance or spying done on an individual, either by the State or by any external agency.&nbsp;&nbsp;</b></p><p><b>36. Of course, if done by the State, the same must be justified on constitutional grounds. This Court is cognizant of the State’s interest to ensure that life and liberty is preserved and must balance the same. For instance, in today’s world, information gathered&nbsp; &nbsp;by&nbsp; &nbsp;intelligence&nbsp; &nbsp;agencies&nbsp; &nbsp;through&nbsp; &nbsp;surveillance&nbsp; &nbsp;is essential for the fight against violence and terror. To access this information,&nbsp; &nbsp;a&nbsp; &nbsp;need&nbsp; &nbsp;may&nbsp; &nbsp;arise&nbsp; &nbsp;to&nbsp; &nbsp;interfere&nbsp; &nbsp;with&nbsp; &nbsp;the&nbsp; &nbsp;right&nbsp; &nbsp;to privacy of an individual, provided it is carried out only when it is absolutely necessary for protecting national security/interest and is&nbsp; &nbsp;proportional.&nbsp; &nbsp;The&nbsp; &nbsp;considerations&nbsp; &nbsp;for&nbsp; &nbsp;usage&nbsp; &nbsp;of&nbsp; &nbsp;such&nbsp; &nbsp;alleged technology, ought to be evidence based. In a democratic country governed by the rule of law, indiscriminate spying on individuals cannot be allowed except with sufficient statutory safeguards, by following the procedure established by law underthe Constitution.</b></p><p><b>37. This trade­off between the right to privacy of an individual and the security interests of the State, has been recognized world over</b></p><p><b>41. Having&nbsp; &nbsp;regard&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;importance&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;protection&nbsp; &nbsp;of journalistic sources for press freedom in a democratic society and the potential chilling effect that snooping techniques may have, this Court’s task in the present matter, where certain grave allegations of infringement of the rights of the citizens of the country have been raised, assumes great significance. In this light, this Court is compelled to take up the cause to determine the truth and get to the bottom of the allegations made herein.</b></p><p><b>45. .....this Court issued notice to the Respondent­Union of India and sought information from them. We would like to re­emphasize what is already apparent from the record of proceedings. This Court gave ample opportunity to the Respondent­Union&nbsp; &nbsp;of&nbsp; &nbsp;India&nbsp; &nbsp;to&nbsp; &nbsp;clarify&nbsp; &nbsp;its&nbsp; &nbsp;stand&nbsp; &nbsp;regarding&nbsp; &nbsp;the allegations raised, and to provide information to assist the Court regarding the various actions taken by it over the past two years, since the first disclosed alleged Pegasus spyware attack. We had made it clear to the learned Solicitor General on many occasions that we would not push the Respondent­Union of India to provide any information that may affect the national security concerns of the&nbsp; &nbsp;country.&nbsp; &nbsp;However,&nbsp; &nbsp;despite&nbsp; &nbsp;the&nbsp; &nbsp;repeated&nbsp; &nbsp;assurances&nbsp; &nbsp;and opportunities given, ultimately the Respondent­Union of India has placed on record what they call a “limited affidavit”, which does not shed any light on their stand or provide any clarity as to the facts of the matter at hand. If the Respondent­Union of India had&nbsp; &nbsp;made&nbsp; &nbsp;their&nbsp; &nbsp;stand&nbsp; &nbsp;clear&nbsp; &nbsp;it&nbsp; &nbsp;would&nbsp; &nbsp;have&nbsp; &nbsp;been&nbsp; &nbsp;a&nbsp; &nbsp;different situation, and the burden on us would have been different.&nbsp;</b></p><p><b>46. Such a course of action taken by the Respondent­Union of India,&nbsp; &nbsp;especially&nbsp; &nbsp;in&nbsp; &nbsp;proceedings&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;present&nbsp; &nbsp;nature&nbsp; &nbsp;which touches&nbsp; &nbsp;upon&nbsp; &nbsp;the&nbsp; &nbsp;fundamental&nbsp; &nbsp;rights&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;citizens&nbsp; &nbsp;of&nbsp; &nbsp;the country, cannot&nbsp; be accepted. As held by this Court in&nbsp; Ram Jethmalani&nbsp; &nbsp;v.&nbsp; &nbsp;Union&nbsp; &nbsp;of&nbsp; &nbsp;India,&nbsp; (2011)&nbsp; &nbsp;8&nbsp; &nbsp;SCC&nbsp; &nbsp;1,&nbsp; &nbsp;the Respondent­Union&nbsp; &nbsp;of&nbsp; &nbsp;India&nbsp; &nbsp;should&nbsp; &nbsp;not&nbsp; &nbsp;take&nbsp; &nbsp;an&nbsp; &nbsp;adversarial position when the fundamental rights of citizens are at threat.</b></p><p><b>49. It is on the strength of the above exception carved out that the Respondent­Union of India has justified its non­submission of a detailed counter affidavit, viz., by citing security concerns. It is a settled position of law that in matters pertaining to national security, the scope of judicial review is limited. However, this does not mean that the State gets a free pass every time the spectre of “national security” is raised. National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning. Although this Court should be circumspect in encroaching upon the domain of national security, no omnibus prohibition can be called for against judicial review.&nbsp;</b></p><p><b>54. We&nbsp; are&nbsp; of&nbsp; the&nbsp; &nbsp;opinion&nbsp; that&nbsp; &nbsp;in&nbsp; the&nbsp; circumstances&nbsp; of&nbsp; the present case, when the Respondent­Union of India has already been given multiple opportunities to file an affidavit on record, and looking to the conduct of the Respondent­Union of India in not placing on record any facts through their reliance on the “national security” defense, no&nbsp; useful purpose would be served by issuing directions of the nature sought by Mr. Shyam Divan, apart from causing a further delay in proceedings.</b></p><p><b>56. The compelling circumstances that have weighed with us to pass such an order are as follows: i. Right to privacy and freedom of speech are alleged to be impacted, which needs to be examined. ii. The entire citizenry is affected by such allegations due to the potential chilling effect. iii. No clear stand taken by the Respondent­Union of India regarding actions taken by it. iv. Seriousness&nbsp; &nbsp;accorded&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;allegations&nbsp; &nbsp;by&nbsp; &nbsp;foreign countries and involvement of foreign parties. v. Possibility that some foreign authority, agency or private entity is involved in placing citizens of this country under surveillance. vi. Allegations that the Union or State Governments are party to the rights’ deprivations of the citizens.&nbsp; vii. Limitation&nbsp; &nbsp;under&nbsp; &nbsp;writ&nbsp; &nbsp;jurisdiction&nbsp; &nbsp;to&nbsp; &nbsp;delve&nbsp; &nbsp;into&nbsp; &nbsp;factual aspects. For instance, even the question of usage of the technology on citizens, which is the jurisdictional fact, is disputed and requires further factual examination.</b></p><p><b>61. The terms of reference of the Committee are as follows: A. To enquire, investigate and determine:&nbsp; i. Whether&nbsp; &nbsp;the&nbsp; &nbsp;Pegasus&nbsp; &nbsp;suite&nbsp; &nbsp;of&nbsp; &nbsp;spyware&nbsp; &nbsp;was&nbsp; &nbsp;used&nbsp; &nbsp;on phones or other devices of the citizens of India to access stored&nbsp; &nbsp;data,&nbsp; &nbsp;eavesdrop&nbsp; &nbsp;on&nbsp; &nbsp;conversations,&nbsp; &nbsp;intercept information and/or for any other purposes not explicitly stated herein? ii. The details of the victims and/or persons affected by such a spyware attack. iii. What&nbsp; &nbsp;steps/actions&nbsp; &nbsp;have&nbsp; &nbsp;been&nbsp; &nbsp;taken&nbsp; &nbsp;by&nbsp; &nbsp;the Respondent­Union of India after reports were published in the year 2019 about hacking of WhatsApp accounts of Indian citizens, using the Pegasus suite of spyware.&nbsp; iv. Whether any Pegasus suite of spyware was acquired by the&nbsp; &nbsp;Respondent­Union&nbsp; &nbsp;of&nbsp; &nbsp;India,&nbsp; &nbsp;or&nbsp; &nbsp;any&nbsp; &nbsp;State Government,&nbsp; &nbsp;or&nbsp; &nbsp;any&nbsp; &nbsp;central&nbsp; &nbsp;or&nbsp; &nbsp;state&nbsp; &nbsp;agency&nbsp; &nbsp;for&nbsp; &nbsp;use against the citizens of India?&nbsp; v. If any governmental agency has used the Pegasus suite of spyware on the citizens of this country, under what law, rule, guideline, protocol or lawful procedure was such deployment made? vi. If any domestic entity/person has used the spyware on the&nbsp; &nbsp;citizens&nbsp; &nbsp;of&nbsp; &nbsp;this&nbsp; &nbsp;country,&nbsp; &nbsp;then&nbsp; &nbsp;is&nbsp; &nbsp;such&nbsp; &nbsp;a&nbsp; &nbsp;use authorised? vii. Any other matter or aspect which may be connected, ancillary or incidental to the above terms of reference, which&nbsp; &nbsp;the&nbsp; Committee&nbsp; &nbsp;may&nbsp; &nbsp;deem&nbsp; &nbsp;fit&nbsp; &nbsp;and&nbsp; &nbsp;proper&nbsp; &nbsp;to investigate.</b></p><p><b>B. To make recommendations:&nbsp;</b></p><p><b>i. Regarding&nbsp; &nbsp;enactment&nbsp; &nbsp;or&nbsp; &nbsp;amendment&nbsp; &nbsp;to&nbsp; &nbsp;existing&nbsp; &nbsp;law and&nbsp; &nbsp;procedures&nbsp; &nbsp;surrounding&nbsp; &nbsp;surveillance&nbsp; &nbsp;and&nbsp; &nbsp;for securing improved right to privacy. ii. Regarding enhancing and improving the cyber security of the nation and its assets.&nbsp; iii. To ensure prevention of invasion of citizens’ right to privacy,&nbsp; &nbsp;otherwise&nbsp; &nbsp;than&nbsp; &nbsp;in&nbsp; &nbsp;accordance&nbsp; &nbsp;with&nbsp; &nbsp;law,&nbsp; &nbsp;by State&nbsp; &nbsp;and/or&nbsp; &nbsp;non­State&nbsp; &nbsp;entities&nbsp; &nbsp;through&nbsp; &nbsp;such spywares. iv. Regarding&nbsp; &nbsp;the&nbsp; &nbsp;establishment&nbsp; &nbsp;of&nbsp; &nbsp;a&nbsp; &nbsp;mechanism&nbsp; &nbsp;for citizens&nbsp; &nbsp;to&nbsp; &nbsp;raise&nbsp; &nbsp;grievances&nbsp; &nbsp;on&nbsp; &nbsp;suspicion&nbsp; &nbsp;of&nbsp; &nbsp;illegal surveillance of their devices. v. Regarding&nbsp; &nbsp;the&nbsp; &nbsp;setting&nbsp; &nbsp;up&nbsp; &nbsp;of&nbsp; &nbsp;a&nbsp; &nbsp;well­equipped independent&nbsp; &nbsp;premier&nbsp; &nbsp;agency&nbsp; &nbsp;to&nbsp; &nbsp;investigate&nbsp; &nbsp;cyber security vulnerabilities, for threat assessment relating to&nbsp; &nbsp;cyberattacks&nbsp; &nbsp;and&nbsp; &nbsp;to&nbsp; &nbsp;investigate&nbsp; &nbsp;instances&nbsp; &nbsp;of cyberattacks in the country. vi. Regarding any ad­hoc arrangement that may be made by this Court as an interim measure for the protection of citizen’s rights, pending filling up of lacunae by the Parliament. vii. On any other ancillary matter that the Committee may deem fit and proper.</b></p><p><b>62. The Procedure of the Committee shall be as follows:</b></p><p><b>(1) The Committee constituted by this Order is authorised to ­ (a) devise its own procedure to effectively implement and answer the Terms of Reference; (b) hold such enquiry or investigation as it deems fit;and (c) take statements of any person in connection with the enquiry and call for the records of any authority or individual. (2)&nbsp; Justice R. V. Raveendran, former Judge, Supreme Court of India will oversee the functioning of the Committee with respect to the methodology to be adopted, procedure to be followed, enquiry and investigation that is carried out and preparation of the report. (3) The&nbsp; &nbsp;learned&nbsp; &nbsp;overseeing&nbsp; &nbsp;Judge&nbsp; &nbsp;is&nbsp; &nbsp;at&nbsp; &nbsp;liberty&nbsp; &nbsp;to&nbsp; &nbsp;take&nbsp; &nbsp;the assistance of any serving or retired officer(s), legal expert(s) or technical expert(s) in discharge of his functions. (4) We&nbsp; &nbsp;request&nbsp; &nbsp;the&nbsp; &nbsp;learned&nbsp; &nbsp;overseeing&nbsp; &nbsp;Judge&nbsp; &nbsp;to&nbsp; &nbsp;fix&nbsp; &nbsp;the honorarium&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;members&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Committee&nbsp; &nbsp;in consultation&nbsp; &nbsp;with&nbsp; &nbsp;them,&nbsp; &nbsp;which&nbsp; &nbsp;shall&nbsp; &nbsp;be&nbsp; &nbsp;paid&nbsp; &nbsp;by&nbsp; &nbsp;the Respondent­Union of India immediately.(5) The&nbsp; &nbsp;Respondent­Union&nbsp; &nbsp;of&nbsp; &nbsp;India&nbsp; &nbsp;and&nbsp; &nbsp;all&nbsp; &nbsp;the&nbsp; &nbsp;State Governments, as well as agencies/authorities under them, are&nbsp; &nbsp;directed&nbsp; &nbsp;to&nbsp; &nbsp;extend&nbsp; &nbsp;full&nbsp; &nbsp;facilities,&nbsp; &nbsp;including&nbsp; &nbsp;providing support with respect to infrastructure needs, manpower, finances, or any other matter as may be required&nbsp; by the Committee or the overseeing former Judge to effectively and expeditiously carry out the task assigned to them by this Court. (6) Mr.&nbsp; &nbsp;Virender&nbsp; &nbsp;Kumar&nbsp; &nbsp;Bansal,&nbsp; &nbsp;Officer&nbsp; &nbsp;on&nbsp; &nbsp;Special&nbsp; &nbsp;Duty/ Registrar, Supreme Court of India, is directed to coordinate between the Committee, the learned overseeing Judge and the Central/State Governments to facilitate communication and ensure smooth functioning and expeditious response to,&nbsp; &nbsp;and&nbsp; &nbsp;implementation&nbsp; &nbsp;of,&nbsp; &nbsp;requests&nbsp; &nbsp;made&nbsp; &nbsp;by&nbsp; &nbsp;the Committee, the learned overseeing Judge or those named in paragraph 59 above, tasked to assist him.&nbsp;</b></p>', 'e53fd8aa10da89ff712669f84d289bc5.JPG', '9dbcc8378f6ec1f5e62a8c377fcca188.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-10-31', 1, '', '', '2021-11-01 01:33:37', '2021-11-01 01:33:37'),
(1130, 'ShhgwqxyLXTGGmLU3LG8o7hgF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Child custody. Non-custodial parent is entitled to equal number of days as with the custodial parent during holidays, festivals, birthdays and other important family functions. Karnataka High Court issues guidelines. ', '<p><b>Jyothi Priya vs Paul Goodwin <br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Writ Petition 101082 of 2021 decided on 9 August 2021<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/417661/1/WP101082-21-09-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/417661/1/WP101082-21-09-08-2021.pdf</a></b></p><p><b>This petition is directed against the impugned order dated 01.03.2021 pased on I.A.No.6 in G & WC No.5/2018 on the file of the Prl. Judge, Family Court, Hubbali, whereby the said application filed by the respondent was partly allowed by the Family Court.</b></p><p><b>7. Before parting, it is necessary to state that there  has been substantial increase in matrimonial cases over the last three decades and invariably, in every case where minor children are involved both spouses fight bitter battles regarding guardianship, custody and visitation. So also, in every case, applications are filed by the non-custodial parent for interim custody during the pendency of the litigation between the spouses. The Family Courts and Courts dealing with </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">matrimonial matters are flooded not only with  disputes between husband and wife, but Courts are also called upon to adjudicate upon interlocutory applications filed for interim custody and shared parenting, which has now become  the norm compared to earlier times when custody of the minor children would remain only with the custodial parent and the non-custodial parent would be deprived of the company of the minor child which would impact and affect the welfare and overall well-being of the minor child.</b></p><p><b>8. While the principles relating to custody and guardianship of minor children are well settled by several decisions of various courts including the apex court and this court, invariably, in all matrimonial disputes where the question/issue regarding child custody is also in dispute, either both parties file applications seeking interim custody/visitation rights, in respect of the minor children. Due to several reasons, the family courts and the trial courts are not in a position to consider and dispose of the said interlocutory applications in relation to child custody and such applications are usually decided after a long lapse of time during the pendency of matrimonial proceedings. In this context, it is </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">relevant to state that since the welfare of the child is of paramount consideration and the court functions both as the guardian and custodian of minor children involved in a matrimonial dispute, it is imperative that all courts should endeavour to make interim arrangements with regard to interim custody/visitation rights during the pendency of proceedings, irrespective of whether any interlocutory application for interim custody/visitation/shared parenting has been filed or not by either party. It is also to be stated that the existing statutory provisions in relation to interim custody of minor children do not provide sufficient guidance for the trial courts in dealing with interim custody or visitation rights or shared parenting.</b></p><p><b>9. Under these circumstances, I deem it just and appropriate to issue the following broad guidelines to all family and trial courts while dealing with issue relating to interim custody and visitation rights of minor children.</b></p><p><b>12. The following legal principles have been enunciated in various cases before the Apex Court and other High Courts and shall serve as guidelines for interim custody orders by the family courts:</b></p><p><b>1. The separation of the minor from the parent during the pendency of the case is detrimental to the welfare of the child.</b></p><p><b>2. Notwithstanding allegations made by either party, interim custody applications must be decided on the sole basis of the welfare of the child.</b></p><p><b>3.There exists no indefeasible right to deny custody of either parent of the minor.</b></p><p><b>4.Whenever such interim custody applications are filed, the respective family courts must dispose of such cases within a reasonable time period of not more than thirty days.</b></p><p><b>15. Per contra, what is of paramount importance while exercising the court’s jurisdiction, is the welfare of the child. The welfare and interest of the child becomes the determining factor for the court’s granting of custody. This includes the child’s contentment, health, education, intellectual development and favourable surroundings which are to be given due weightage, but the child’s moral and ethical values are as important, if not more so, than the aforementioned physical comforts. Application of this principle must exist in interim custody orders to protect children in broken homes and ensure that they are looked out for.</b></p><p><b>20. The rights of the non-custodial parent is intertwined and integrated with the rights of the child and therefore, the child has the right to be with the non-custodial parent for equal number of days as with the custodial parent during holidays, festivals, birthdays and other important family functions. The child may also be permitted to accompany the non-custodial parent if they are residing outside the state/ country with an undertaking to submit travel plan.</b></p><p><b>23. It is a well-known and a well-settled principle that character building is an essential part of a child’s growth and in this process, parents are the facilitators and in the absence of any one of the parent interacting with the child, the child would become that much unfortunate and deficient.</b></p><p><b>27. I may add that the aforesaid broad guidelines are only illustrative and not exhaustive and it is for the Courts to take necessary steps and pass appropriate orders depending on the facts and circumstances of the case.</b></p><p><b>Registry is directed to circulate copy of this order to all Family Courts in the State as well as all trial Courts and appellate Courts dealing with matrimonial disputes.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '3ea6d88fc7ff5a9c86795ce34a185605.jpg', '2aee8d1007fb0788c8fb60bdc65a0bf6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-01', 1, '', '', '2021-11-01 17:02:07', '2021-11-01 17:03:16'),
(1131, 'vzt822lKaa1aBz5TW2ZXdd4IL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Amendment to Specific Relief Act, 1963 is a guide to decide on the discretionary relief in pending suits for specific performance. Supreme Court.   ', '<p><b>Sughar Singh vs Hari Singh (Dead) Through LRs. &amp; Ors<br></b><span style=\"font-weight: bolder;\">Civil Appeal 5110 of 2021 decided on 26 October 2021<br></span><b>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"https://main.sci.gov.in/supremecourt/2010/34522/34522_2010_13_1501_30924_Judgement_26-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2010/34522/34522_2010_13_1501_30924_Judgement_26-Oct-2021.pdf</a></b></p><p><b>9. Even while proving the readiness and willingness the\r\nplaintiff is not required to make any averment that the plaintiff\r\nrequired executant of the agreement to sell to attend the office\r\nof the Sub-Registrar to execute the sale deed within the time\r\nagreed. Even as held by this Court in the case of C.S.\r\nVenkatesh Vs A.S.C. Murthy (Dead) By Lrs. and Ors.\r\nreported in (2020) 3 SCC 280 to adjudge whether the plaintiff\r\nis ready and willing to perform his part of contract, the Court\r\nmust take into consideration the conduct of the plaintiff prior\r\nand subsequent to filing of the suit alongwith other attending\r\ncircumstances in a particular case. It is also further observed\r\nthat whether the plaintiff was ready and was always ready to&nbsp;perform his part of contract may be inferred from the facts and\r\ncircumstances of a particular case. It is further observed that it\r\nis not necessary for the plaintiff to produce ready money but it\r\nis mandatory on his part to prove that he has means to\r\ngenerate consideration amount.</b></p><p><b>10. Now, so far as the finding recorded by the High Court\r\nand the observations made by the High court on Section 20 of\r\nthe Act and the observation that even if the agreement is found\r\nto be duly executed and the plaintiff is found to be ready and\r\nwilling to perform his part of the Agreement, grant of decree of\r\nspecific performance is not automatic and it is a discretionary\r\nrelief is concerned, the same cannot be accepted and/or\r\napproved. In such a case, many a times it would be giving a\r\npremium to the dishonest conduct on the part of the defendant\r\n/ executant of the agreement to sell. Even the discretion under\r\nSection 20 of the Act is required to be exercised judiciously,\r\nsoundly and reasonably. The plaintiff cannot be punished by\r\nrefusing the relief of specific performance despite the fact that&nbsp;the execution of the agreement to sell in his favour has been\r\nestablished and proved and that he is found to be always\r\nready and willing to perform his part of the contract. Not to\r\ngrant the decree of specific performance despite the execution\r\nof the agreement to sell is proved; part sale consideration is\r\nproved and the plaintiff is always ready and willing to perform\r\nhis part of the contract would encourage the dishonesty. In\r\nsuch a situation, the balance should tilt in favour of the plaintiff\r\nrather than in favour of the defendant – executant of the\r\nagreement to sell, while exercising the discretion judiciously.<br></b></p><p><b>For the aforesaid, even amendment to the Specific Relief Act,\r\n1963 by which section 10(a) has been inserted, though may\r\nnot be applicable retrospectively but can be a guide on the\r\ndiscretionary relief. Now the legislature has also thought it to\r\ninsert Section 10(a) and now the specific performance is no\r\nlonger a discretionary relief. As such the question whether the\r\nsaid provision would be applicable retrospectively or not\r\nand/or should be made applicable to all pending proceedings\r\nincluding appeals is kept open. However, at the same time, as\r\nobserved hereinabove, the same can be a guide.&nbsp;<br></b></p><p><b><br></b></p><p> <br></p>', '5f2b6ec236bda84a62183d25a61e5490.JPG', 'bbfc44c02adee456180c69392fae4d29.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-02', 1, '', '', '2021-11-02 18:43:59', '2021-11-02 18:43:59'),
(1132, '1Oe6qV19YiVVt3ssKXnMUmlDi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for specific performance. When plaintiff is ready and willing, court cannot refuse decree since that would give a premium to the dishonest conduct of the defendant.  ', '<p><span style=\"font-weight: bolder;\">Sughar Singh vs Hari Singh (Dead) Through LRs. &amp; Ors<br></span><span style=\"font-weight: bolder;\">Civil Appeal 5110 of 2021 decided on 26 October 2021<br></span><span style=\"font-weight: bolder;\">Judgment Link:&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"https://main.sci.gov.in/supremecourt/2010/34522/34522_2010_13_1501_30924_Judgement_26-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2010/34522/34522_2010_13_1501_30924_Judgement_26-Oct-2021.pdf</a></span></p><p><span style=\"font-weight: bolder;\">9. Even while proving the readiness and willingness the plaintiff is not required to make any averment that the plaintiff required executant of the agreement to sell to attend the office of the Sub-Registrar to execute the sale deed within the time agreed. Even as held by this Court in the case of C.S. Venkatesh Vs A.S.C. Murthy (Dead) By Lrs. and Ors. reported in (2020) 3 SCC 280 to adjudge whether the plaintiff is ready and willing to perform his part of contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to filing of the suit alongwith other attending circumstances in a particular case. It is also further observed that whether the plaintiff was ready and was always ready to&nbsp;perform his part of contract may be inferred from the facts and circumstances of a particular case. It is further observed that it is not necessary for the plaintiff to produce ready money but it is mandatory on his part to prove that he has means to generate consideration amount.</span></p><p><span style=\"font-weight: bolder;\">10. Now, so far as the finding recorded by the High Court and the observations made by the High court on Section 20 of the Act and the observation that even if the agreement is found to be duly executed and the plaintiff is found to be ready and willing to perform his part of the Agreement, grant of decree of specific performance is not automatic and it is a discretionary relief is concerned, the same cannot be accepted and/or approved. In such a case, many a times it would be giving a premium to the dishonest conduct on the part of the defendant / executant of the agreement to sell. Even the discretion under Section 20 of the Act is required to be exercised judiciously, soundly and reasonably. The plaintiff cannot be punished by refusing the relief of specific performance despite the fact that&nbsp;the execution of the agreement to sell in his favour has been established and proved and that he is found to be always ready and willing to perform his part of the contract. Not to grant the decree of specific performance despite the execution of the agreement to sell is proved; part sale consideration is proved and the plaintiff is always ready and willing to perform his part of the contract would encourage the dishonesty. In such a situation, the balance should tilt in favour of the plaintiff rather than in favour of the defendant – executant of the agreement to sell, while exercising the discretion judiciously.<br></span></p><p><span style=\"font-weight: bolder;\">For the aforesaid, even amendment to the Specific Relief Act, 1963 by which section 10(a) has been inserted, though may not be applicable retrospectively but can be a guide on the discretionary relief. Now the legislature has also thought it to insert Section 10(a) and now the specific performance is no longer a discretionary relief. As such the question whether the said provision would be applicable retrospectively or not and/or should be made applicable to all pending proceedings including appeals is kept open. However, at the same time, as observed hereinabove, the same can be a guide.&nbsp;<br></span></p><p><span style=\"font-weight: bolder;\"><br></span></p>', '093239f902e632cd7731ef6d62d99cba.jpg', 'c232c33cdf6c064d1d3123e9b3d2a7ae.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-02', 1, '', '', '2021-11-02 18:51:12', '2021-11-02 18:51:12');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1133, '1seUp3vfSJSmA6GGlUflXoDCW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for specific performance. It is NOT necessary for plaintiff to aver that he called upon the defendant to attend office of the sub-registrar to execute sale deed within the time agreed. Prior and subsequent conduct is relevant. Supreme Court.', '<p><b>Sughar Singh vs Hari Singh (Dead) Through LRs. & Ors</b></p><p><b>Civil Appeal 5110 of 2021 decided on 26 October 2021</b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2010/34522/34522_2010_13_1501_30924_Judgement_26-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2010/34522/34522_2010_13_1501_30924_Judgement_26-Oct-2021.pdf</a></b></p><p><b>9. Even while proving the readiness and willingness the plaintiff is not required to make any averment that the plaintiff required executant of the agreement to sell to attend the office of the Sub-Registrar to execute the sale deed within the time agreed. Even as held by this Court in the case of C.S. Venkatesh Vs A.S.C. Murthy (Dead) By Lrs. and Ors. reported in (2020) 3 SCC 280 to adjudge whether the plaintiff is ready and willing to perform his part of contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to filing of the suit alongwith other attending circumstances in a particular case. It is also further observed that whether the plaintiff was ready and was always ready to perform his part of contract may be inferred from the facts and circumstances of a particular case. It is further observed that it is not necessary for the plaintiff to produce ready money but it is mandatory on his part to prove that he has means to generate consideration amount.</b></p><p><b>10. Now, so far as the finding recorded by the High Court and the observations made by the High court on Section 20 of the Act and the observation that even if the agreement is found to be duly executed and the plaintiff is found to be ready and willing to perform his part of the Agreement, grant of decree of specific performance is not automatic and it is a discretionary relief is concerned, the same cannot be accepted and/or approved. In such a case, many a times it would be giving a premium to the dishonest conduct on the part of the defendant / executant of the agreement to sell. Even the discretion under Section 20 of the Act is required to be exercised judiciously, soundly and reasonably. The plaintiff cannot be punished by refusing the relief of specific performance despite the fact that the execution of the agreement to sell in his favour has been established and proved and that he is found to be always ready and willing to perform his part of the contract. Not to grant the decree of specific performance despite the execution of the agreement to sell is proved; part sale consideration is proved and the plaintiff is always ready and willing to perform his part of the contract would encourage the dishonesty. In such a situation, the balance should tilt in favour of the plaintiff rather than in favour of the defendant – executant of the agreement to sell, while exercising the discretion judiciously.</b></p><p><b>For the aforesaid, even amendment to the Specific Relief Act, 1963 by which section 10(a) has been inserted, though may not be applicable retrospectively but can be a guide on the discretionary relief. Now the legislature has also thought it to insert Section 10(a) and now the specific performance is no longer a discretionary relief. As such the question whether the said provision would be applicable retrospectively or not and/or should be made applicable to all pending proceedings including appeals is kept open. However, at the same time, as observed hereinabove, the same can be a guide. </b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '16e343186ea892f086e286b43097ae65.JPG', '5d7fa9162efd7615e86ae5e1c32208fc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-02', 1, '', '', '2021-11-02 18:58:57', '2021-11-02 19:01:11'),
(1134, 'KamZZOxFHsXdGjmV9fQD5Ewot', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act. In order to maintain a claim petition, it is sufficient for the claimant to establish loss of dependency. Even a dependent mother-in-law is entitled to compensation. Supreme Court. ', '<p><b>N. Jayasree and others vs Cholamandalam MS General Insurance Company Ltd.<br>Civil Appeal 6451 of 2021 decided on 25 October 2021<br>Justice S. Abdul Nazeer and Justice Krishna Murari<br>Judgment Link:&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"https://main.sci.gov.in/supremecourt/2019/17439/17439_2019_37_1501_30837_Judgement_25-Oct-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/17439/17439_2019_37_1501_30837_Judgement_25-Oct-2021.pdf</a></span></b></p><p><b>(I) whether&nbsp; the&nbsp; High&nbsp; Court&nbsp; was&nbsp; justified in precluding the mother­ in­ law of the deceased (appellant no.4) as his legal representative? </b></p><p><b>10. The provisions of the Motor Vehicles Act, 1988 (for short, “MV Act”) gives paramount importance to the concept of ‘just and fair’ compensation.&nbsp; It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section&nbsp; &nbsp;168&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;MV&nbsp; &nbsp;Act&nbsp; &nbsp;deals&nbsp; &nbsp;with&nbsp; &nbsp;the&nbsp; &nbsp;concept&nbsp; &nbsp;of&nbsp; &nbsp;‘just compensation’ which ought to be determined on the foundation of fairness,&nbsp; &nbsp;reasonableness&nbsp; &nbsp;and&nbsp; &nbsp;equitability.&nbsp; &nbsp;Although&nbsp; &nbsp;such determination&nbsp; &nbsp;can&nbsp; &nbsp;never&nbsp; &nbsp;be&nbsp; &nbsp;arithmetically&nbsp; &nbsp;exact&nbsp; &nbsp;or&nbsp; &nbsp;perfect,&nbsp; &nbsp;an endeavor should be made by the Court to award just and fair compensation&nbsp; &nbsp;irrespective&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;amount&nbsp; &nbsp;claimed&nbsp; &nbsp;by&nbsp; &nbsp;the applicant/s.</b></p><p><b>14. The MV Act does not define the term ‘legal representative’. Generally,&nbsp; &nbsp;‘legal&nbsp; &nbsp;representative’&nbsp; &nbsp;means&nbsp; &nbsp;a&nbsp; &nbsp;person&nbsp; &nbsp;who&nbsp; &nbsp;in&nbsp; &nbsp;law represents the estate of the deceased person and includes any person or persons in whom legal right to receive compensatory benefit vests.&nbsp; A ‘legal representative’ may also include any person who&nbsp; intermeddles&nbsp; with the estate of the deceased.&nbsp; &nbsp;Such person does not necessarily have to be a legal heir.&nbsp; &nbsp;Legal heirs are the persons&nbsp; who&nbsp; &nbsp;are&nbsp; &nbsp;entitled&nbsp; to&nbsp; &nbsp;inherit&nbsp; &nbsp;the&nbsp; &nbsp;surviving&nbsp; estate&nbsp; &nbsp;of&nbsp; the deceased.&nbsp; A legal heir may also be a legal representative.&nbsp; &nbsp;&nbsp;</b></p><p><b>16. In our view, the term ‘legal representative’ should be given a wider interpretation for the purpose of Chapter XII of MV Act and it should not be confined only to mean the spouse, parents and children of the deceased. As noticed above, MV Act is a benevolent legislation enacted for the object of providing monetary relief to the victims or their families. Therefore, the MV Act calls for a liberal and wider interpretation to serve the real purpose underlying the enactment and fulfil its legislative intent.&nbsp; We are also of the view that in order to maintain a claim petition, it is sufficient for the claimant to establish his loss of dependency.&nbsp; Section 166 of the MV Act makes it clear that every legal representative who suffers on account of the death of a person in a motor vehicle accident should have a remedy for realization of compensation.&nbsp;&nbsp;</b></p><p><b>21. Coming to the facts of the present case, the fourth appellant was the mother­in­law of the deceased.&nbsp; Materials on record clearly establish that she was residing with the deceased and his family members.&nbsp; &nbsp;She&nbsp; &nbsp;was&nbsp; &nbsp;dependent&nbsp; &nbsp;on&nbsp; &nbsp;him&nbsp; &nbsp;for&nbsp; &nbsp;her&nbsp; &nbsp;shelter&nbsp; &nbsp;and maintenance.&nbsp; &nbsp; It&nbsp; &nbsp;is&nbsp; &nbsp;not&nbsp; &nbsp;uncommon&nbsp; &nbsp;in&nbsp; &nbsp;Indian&nbsp; &nbsp;Society&nbsp; &nbsp;for&nbsp; &nbsp;the mother­in­law to live with her daughter and son­in­law during her old&nbsp; &nbsp;age&nbsp; &nbsp;and&nbsp; &nbsp;be&nbsp; &nbsp;dependent&nbsp; &nbsp;upon&nbsp; &nbsp;her&nbsp; &nbsp;son­in­law&nbsp; &nbsp;for&nbsp; &nbsp;her maintenance.&nbsp; Appellant no.4 herein may not be a legal heir of the deceased,&nbsp; &nbsp;but&nbsp; &nbsp;she&nbsp; &nbsp;certainly&nbsp; &nbsp;suffered&nbsp; &nbsp;on&nbsp; &nbsp;account&nbsp; &nbsp;of&nbsp; &nbsp;his&nbsp; &nbsp;death. Therefore,&nbsp; &nbsp;we&nbsp; &nbsp;have&nbsp; &nbsp;no&nbsp; &nbsp;hesitation&nbsp; &nbsp;to&nbsp; &nbsp;hold&nbsp; &nbsp;that&nbsp; &nbsp;she&nbsp; &nbsp;is&nbsp; &nbsp;a&nbsp; &nbsp;“legal representative” under Section 166 of the MV Act and is entitled to maintain a claim petition.&nbsp;&nbsp;</b></p><p><br></p>', 'cdb638ad6173127cd938aaae6ec721ee.jpeg', '959fb0390fe86bb92c81bf2e2b9fc441.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-03', 1, '', '', '2021-11-03 23:33:13', '2021-11-03 23:33:13'),
(1135, '79ScngOYifgWFdaJQr7BZtoBV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Treat bona fide tax payer with appropriate dignity as enshrined under Article 21 of the Constitution\'\' Karnataka High Court directs refund process of GST collected under coercion. ', '<p><span style=\"font-weight: bolder;\">M/s. Bundl Technologies Private Limited vs&nbsp;The Union of India and others.&nbsp;<br></span><b>Writ Petition 4467 of 2021 decided on 14 September 2021<br>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/416712/1/WP4467-21-14-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/416712/1/WP4467-21-14-09-2021.pdf</a></b></p><p><b>29. As rightly pointed out by the Apex Court, the power of the High Court to issue appropriate direction directing refund either where assessment was without jurisdiction or where tax was collected without authority of law is vested in the High Court and there is a difference&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">between existence of power and exercise of such&nbsp; jurisdiction which&nbsp; depends on facts of the&nbsp; case on&nbsp; hand.&nbsp; If the court does come to a conclusion that the collection of amount which even if were to be taxes, is without authority of law, the court possesses the power to issue appropriate direction upon determination of the validity of collection of amount/tax as being illegal to issue appropriate directions. The mere fact that application has been made for refund does not in any way take away the right of the petitioner to seek for appropriate direction in the present proceedings, as the application for refund has merely been deferred and in effect, no decision is taken, even otherwise, the question of alternate remedy is of no significance, when the eventual direction in the present writ is only for consideration of the refund application.</b></p><p><b>34. Clearly the procedure prescribed would make out that under Section 74(1) of the CGST Act, a show-cause notice may be issued calling upon the assessee to pay the amount specified in the notice along with interest under Section 50 and a penalty equivalent to the tax specified in the notice. Under sub-section (5) of Section 74, the person chargeable with tax may, before service of notice under sub-section (1) pay the amount of tax along with interest payable under Section 50 of CGST Act and a penalty equivalent to fifteen per cent of such tax on the basis of his own ascertainment of such tax or the tax as ascertained by the proper officer and inform the proper officer in writing of such payment. Upon such ascertainment as contemplated under sub-section(5) of Section 74 of CGST Act, further legal procedure is contemplated to complete such process of ascertainment as contained in the provision. Section 74 includes sub-section (6) which provides for proper officer, on receipt of such information, shall not serve any notice under sub-section (1), in respect of the tax so paid or any penalty payable.</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Under sub-section (7) of Section 74, the \'proper officer\' is at liberty if he concludes that the amount paid under sub-section (5) falls short of the amount actually payable, he shall proceed to issue a notice as provided under sub-section (1) in respect of amount which falls short of the amount actually payable.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Sub-section (8) of Section 74 provides that the person chargeable with tax under sub-section (1) pays the said tax along with interest and penalty within the time prescribed, and all proceedings in respect of the notice shall be deemed to be concluded.</b></p><p><b>38. If it is that the petitioner has paid tax on self- ascertainment, the question of respondents contending that the investigation is pending would also indicate that the contention of self-ascertainment as made out by the respondent is clearly an afterthought. The&nbsp; respondents have not taken the stand that self-ascertained tax falls short and if that were to be so, it could have proceeded to&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">issue notice as contemplated under Section 74(7) and could have even rejected the self-ascertainment in its entirety while asserting that it would issue notice under Section 74(1) of CGST Act, if facts so warrant. The stand of the respondents is ambiguous as self-ascertainment is put forward only as defence to the assertion of the petitioner that the payment of amount has been made involuntarily. Accordingly, the contention of payment being made by way of self-ascertainment is liable to be rejected.</b></p><p><b>45. Insofar as the aspect as to whether amount is paid under coercion as asserted by the petitioner, suffice it to say that the amounts are paid contemporaneous to the very dates when investigation was being made and during times when the petitioner\'s Officers or Directors were at the place of investigation, which fact is not in dispute. If it is that the petitioners were otherwise regularly filing their returns and paying taxes as evidenced from the table extracted supra at Para 18, the dispute if any as regards to the wrongful availment of input tax credit as regards certain set of transactions is a matter that was pending investigation. But, instead of allowing investigation to proceed and be concluded, it appears that the Department has acted in undue haste insofar as to ensure that taxes were paid during the process of investigation. While&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">considering the time at which the amount was deposited in the Cash Ledger and the date of deposit, it would indicate that amounts were paid during times when there was no legal obligation to make payment.</b></p><p><b>46.... The manner in which investigation was carried out in late hours of the night and the early hours of the morning with physical closing of the gates during the investigation would reasonably create an apprehension in the mind of any person including the persons of the standing of Directors of the Assessee Company and its officers. The fear of police powers are such that would shake a man irrespective of their position in society. It must be noted that even under Section 132(1)(b) and (c)(i) to (iii) of the GST Act, 2017, the wrongful availment of I.T.C. is an offence and is punishable with imprisonment. In the context of the facts&nbsp; as made out, the payment cannot be stated to have been made voluntarily. Such amount having been paid, retention of the said amount as referred to above by the Department right from November, 2019 till date where investigation is not concluded would call upon the department to honour legitimate claims being made for refund of the amount which cannot be grudged. Lapse of time and lack of conclusion of investigation has only exacerbated the situation conferring upon the petitioners a right to seek for refund of the amount.</b></p><p><b>52. Insofar as the grounds relating to compelling the petitioner to make payment under duress, the observation of the Apex Court in the case of Dabur India Limited and Another v. State of Uttar Pradesh and Others and connected matters (1990) 4 SCC 113 at Para 31 would&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be an apt observation that would be applicable in the present case also.</b></p><p><b><i>\"Before we part with this case, two aspects have to be adverted to--one was regarding the allegation of the petitioner that in order to compel the petitioners to pay the duties which the petitioners contended that they were not liable to pay, the licence was not being renewed for a period and the petitioners were constantly kept under threat of closing down of their business in order to coerce them to make the payment. This is unfortunate. We would not like to hear from&nbsp; a litigant in this country that the Government is coercing citizens of this Country to make payment of duties which the litigant is contending not to be leviable. Government, of course, is entitled to enforce payment and for that purpose to take all legal steps but the Government, Central or State, cannot be permitted to play dirty games with the citizens of this country to coerce them in making payments which the citizens were not legally obliged to make. If any money is due to the Government, the Government should take steps but not take extra legal steps or manoeuvre \"</i></b></p><p><b>55. No doubt, the power of investigation cannot be interfered with nor can the court direct investigation be made in a particular manner, however, during all such investigation, it cannot be held that the Fundamental Rights including the right of a bona fide tax payer to be treated with appropriate dignity as enshrined under Article 21 of the Constitution of India would be kept in abeyance. We would not like to elaborate further but to leave it to the wisdom of the respondents as to the manner in which bona fide tax payers are to be treated.</b></p><p><b>62. Accordingly, refund applications at Annexure-\'Q\' are to be considered and suitable orders be passed within a period of four weeks from the date of release of the order while making it clear that consideration of refund applications must be made in light of the observations.</b></p>', '5f0bea62e7c0553358ff9689a9861253.jpg', '57bf538d5ca1fa1ab5922d6455a8aa2e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-04', 1, '', '', '2021-11-04 23:40:54', '2021-11-04 23:40:54'),
(1136, 'bVzzcmsCSxRpk1yQz0t5J74IG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mere filing of cases or registration of complaints against the deceased does NOT constitute abetment to commit suicide under Section 306 IPC or atrocity under the SC-ST (Prevention of Atrocities) Act. Karnataka High Court. ', '<p><b>S. Sadashivappa vs State by Dandina Shivara Police Station and another<br>Criminal Petition 6390 of 2017 decided on 14 September 2021<br>Judgment Link: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/414239/1/CRLP6390-17-14-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/414239/1/CRLP6390-17-14-09-2021.pdf</a></b></p><p><b>The petitioner in this petition calls in question the order dated 15-03-2017 of the III Additional Sessions Judge  at  Tumkur in Special Case No.266 of 2012 rejecting the application filed by him under Section 227 of the Criminal Procedure Code seeking discharge from the proceedings initiated against him for the offences punishable under Section 306 of the Indian Penal Code read with Sections 3(2)(5) and 3(1)(8) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the Atrocities Act’).</b></p><p><b>Therefore, in terms of Section 306 of IPC whoever abets a particular thing as defined under Section 107 of IPC would become punishable under Section 306 of the IPC. Section 107 of IPC mandates that a person abets doing of a thing and instigates any person to do so, engages with one or more other person in any conspiracy for doing such a thing, intentionally aids by any act or illegal omission of doing of that thing. Therefore, for an offence punishable under Section 306 of IPC for abetment to suicide, the ingredients under Section 107 of IPC are to be present in a given case.</b></p><p><b>10. The learned counsel for the petitioner places reliance on a judgment of the learned Single Judge of this Court in the case of M.C.CHAITHRA AND OTHERS VS. STATE OF KARNATAKA reported in ILR 2008 KAR 2710. This judgment is of the year 2008. The clock of the flow of law did not freeze in the year 2008, as much water has flown thereafter in interpretation of Sections 306 and 107 of the IPC by plethora of judgments of the Apex Court. I therefore, deem it appropriate to, at the outset, notice such flow of law and then consider the facts obtaining in the case at hand on the touch stone of such interpretation by the Apex Court. The Apex Court interpreting Section 306 of IPC, has in several judgments, held the existence of mens rea or instigation is necessary to make out an offence punishable under Section 306 of the IPC. </b></p><p><b>15.<span style=\"white-space:pre\">	</span>The complaint that was registered against the petitioner was with regard to constant harassment of the petitioner to the deceased. The complaint was registered on 10- 10-2012 and therefore, it cannot even casually link  the  abetment to suicide to the registration of the complaint or the ingredients of such abetment. Mere filing of a case  or  registration of a complaint or even harassment cannot  mean  that the petitioner had indulged in abetment to suicide of the deceased.</b></p><p><b>16.<span style=\"white-space:pre\">	</span>As delineated by the Apex Court in the judgments extracted (supra), abetment under Section 107 of IPC has few ingredients to be proved. If Section 306 of IPC, has to be proved, if the judgment of the Apex court and the facts obtaining in the case at hand, as stated above are considered, it would unmistakably reveal that there cannot be any link to the  death  of the deceased with the petitioner, as the state of mind to commit a particular crime is a sine qua non to establish an offence under Section 107 IPC and to prove mens rea, there has to be something on record, to establish or show that the petitioner had a guilty mind and in furtherance of that state of </b></p><p><b>mind, abetted suicide to the deceased. Neither the narration in the complaint nor the material in the charge sheet link the  offence under Section 306 IPC with the petitioner. The postmortem report indicates that the deceased died of consumption of excessive alcohol coupled with poison. Neither consumption of excessive alcohol or consumption of poison can link to the cases filed against the deceased by the petitioner. As stated hereinabove, mere harassment by way of filing of cases cannot even remotely link the petitioner for the offence punishable under Section 306 of the IPC. Except the self-  serving statement in the complaint, by the complainant, there is nothing on record to show that the petitioner even remotely instigated abetment of the deceased to commit suicide. In my considered view, there is absolutely no basis to proceed against the petitioner for the alleged offence of Section 306 of the IPC and the provisions of the Atrocities Act. It would be travesty of justice to compel the petitioner to undergo trial particularly  when there is no material against him.</b></p><p><b>Therefore, in the light of the judgment  of the  Apex Court in the  case of BAJANLAL which has been followed in plethora of judgments in the aftermath of BAJANLAL and the  judgment in  the case of RAJIV THAPAR, the petition deserves to succeed.</b></p><p><b>18. The other allegation is concerning Section 3 of the Atrocities Act. In view of the aforesaid reasons, the allegation under the Atrocities Act also cannot be pressed into service, merely because the deceased who died belongs to either Scheduled Caste or Scheduled Tribe, as there is nothing beyond what is alleged and considered hereinabove that is alleged even in the complaint.</b></p><p><b>This Criminal Petition is allowed.</b></p>', 'a4512a179c27dc44d77429a4ff4de683.jpg', 'd13c6c569691a2563a4282aaf191c1f9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-04', 1, '', '', '2021-11-05 00:13:56', '2021-11-05 00:14:49'),
(1137, 'Hgp2kSOk8d0Ix3vxmRO8bRZjz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 305. Court can NOT force any person to represent a company or society when company or society is an accused. Company or society failing to appoint representative cannot contend trial being unfair for want of representation. Karnataka HC', '<p><b>Krishnaswamy Sridhar vs State by CBI</b></p><p><b>Criminal Petition 5697 of 2018 decided on 16 September 2021</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413660/1/CRLP5697-18-16-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413660/1/CRLP5697-18-16-09-2021.pdf </a></b></p><p><b>What has driven the petitioner to this Court is, calling in question the proceedings in a particular order passed by the criminal Court dated 04-07-2018, dismissing the application filed by the petitioner under Section 305(6) of the Cr.P.C., on the ground that the petitioner being accused No.4 and the Director of the Company i.e., accused Nos.8 and 9, cannot be believed to have resigned from the post and has to become a representative of the Company, in terms  of  Section 305 of the Cr.P.C. and represent the Company before the Court. The Company was represented by accused No.2 hitherto, who died on 19-07-2003. After the death of accused No.2, the Company was further represented by accused No.6 who had  been discharged by order of the trial Court on 12-02-2016 and thereafter, there was no representation for the Company.</b></p><p><b>3. The Special Judge after hearing the case, by his order dated 25-04-2018, directs the petitioner that he has been appointed as the representative of the Company/accused Nos.8 and 9 in the special case. It is this order dated 25-04-2018, that the petitioner challenged by filing an application under Section 305(6) of the Cr.P.C. The Court declined to accept  the contention of the petitioner that he cannot represent the Company as he had resigned long ago. The Court on the basis of the documents produced by the prosecution and holding that accused No.4 is still the Director of accused Nos.8 and 9, dismissed of the application filed by the petitioner, directing the petitioner to represent the Company/accused Nos.8 and 9.</b></p><p><b>Section 305 of Cr.P.C. deals with procedure when the  Corporation or registered Society is an accused; sub-section (1) of Section 305 defines an incorporated Company or a Society; sub-section (2) directs where a Corporation is one of the accused persons in a trial, it may appoint a representative for the  purpose of inquiry or trial and such appointment need not be under the seal of the Corporation; sub-section (3) directs where   a representative of the Corporation appears, in his presence several acts and formalities of conduct of trial would take place; sub-section (4) directs that where a representative of a Corporation does not appear, any such requirement  as  is referred to in sub-section (3) shall not apply; sub-section (6) deals with a question whether any person appearing as representative of the Corporation in an inquiry or trial is or is   not such representative shall be determined by the Court.</b></p><p><b>9. In terms of sub-section (2) when the Corporation is an accused person it has to appoint a representative  for  the  purpose of inquiry and trial though it is not to be under the seal of the Corporation. Sub-section (3) prescribes for the  Corporation to do many functions or formalities in a trial for  which presence  of the  representative as obtaining in sub-section </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(2) is imperative. Answering  the  charge,  examination  or other nuances of evidence will be when the company is represented. Sub-section (4) dilutes the rigour of sub-section (3), which directs that where a representative of the Corporation does not appear any such requirement referred to under sub-section (3) will not apply.</b></p><p><b>10.<span style=\"white-space:pre\">	</span>The Section speaks of a representative not appearing before the Court. Therefore, the only interpretation, in my considered view, that can be given to sub-section (4) is the nuances of trial of reading the charge, answering the charge and requirement of the accused to be examined will not happen, if  the representative does not appear. The accused- Corporation/Company if deliberately does not appoint anybody to represent the Company, it would not be available for such Corporation/Company to contend that there has been no  fair trial as obtaining under sub-section (3) as by the representative not appearing before the Court, they would lose such contention to be advanced later.</b></p><p><b>11. The issue now that remains  to  be  considered  is, whether the Court can direct any other accused to represent an accused Corporation or a Company against his will?</b></p><p><b>13. On a plain reading of sub-section (3) of Section 305 of Cr.P.C., it clearly indicates that trial can go on in the absence of representative, as observed by me in the preceding paragraph, if the Company fails to appoint or if the representative fails to appear they would lose the right to contend  that  there  was unfair  trial  for  the  procedure  under  sub-section  (3)  of Section </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">305 not being followed. The criminal Court on 25-04-2018 directs accused No.4/petitioner to represent the Company/accused Nos.8 and 9. The  Company  though  cannot be convicted for the offences alleged, nonetheless can be convicted for imposition of fine. Such fine will have to be answered by the representative of accused/Company in any proceeding. Therefore, the submission of the learned counsel for the CBI that no prejudice would be caused to the petitioner, if he represents  accused  Nos.8  and  9  -  Company  would  not  hold </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">water as representing an accused in a criminal trial can never be against the will of any person.</b></p><p><b>14.<span style=\"white-space:pre\">	</span>In the event, the accused is directed to represent the Company gets acquitted and the fine is imposed upon the Company, the accused who is directed to  represent  the  Company would become responsible. Even otherwise, in a criminal trial, no person even a co-accused can be forced or directed by a judicial order to represent a company. If such an accused concedes to appear as a representative of the company that circumstance will be altogether different. Therefore, the order passed by the Special Court declining to accept the application raising a challenge to the order that was passed directing the petitioner to represent the company is, in my considered view, erroneous.</b></p><p><b>Therefore, in the light of the mandate of the statute, the facts obtaining in the case on hand and the interpretation of Section 305 of the Cr.P.C. by various constitutional Courts (supra), I find the impugned order unsustainable.</b></p>', 'd090718b7a490a9920d217bcf5394f68.jpg', '5cb7d76adc6803a5bf45a4ac5555114a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-04', 1, '', '', '2021-11-05 00:56:47', '2021-11-05 01:01:43'),
(1138, 'vy4p1olmzTbLvuCceqgIFnVWZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Industrial Disputes Act. Section 17B. Workman self-employed like plying auto rickshaw can NOT be said to be gainfully employed in any establishment and hence is entitled to full backwages. Karnataka High Court.  ', '<p><span style=\"font-weight: bolder;\">M/S Delta Infralogistics (Worldwide) Ltd vs Mohan K.E. and others.<br></span><b>Writ Petition 45852 of 2019 decided on 3 September 2021<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405079/1/WP45852-19-03-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/405079/1/WP45852-19-03-09-2021.pdf</a></b><b><br></b></p><p><b>This application is filed at the hands of the respondent workman seeking payment of wages in terms of Section 17B of the Industrial Disputes Act, 1947.</b></p><p><b>3. In this regard, learned counsel for the petitioner would place reliance on a decision of the Hon’ble Supreme Court in the case of North East Karnataka Road Transport Corporation /vs./ M.Nagangouda – (2007) 10 SCC 765 to contend that the Hon’ble Supreme Court has held that “gainful&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">employment” would also include self-employment wherefrom income is generated. Income either from employment in an establishment or from self employment merely differentiates the sources from which income is generated, the end use being the same.&nbsp; It is submitted by the learned counsel that&nbsp; this decision of the Hon’ble Supreme Court has been applied by a Division Bench of the High Court of Bombay in the case of U.P.State Bridge Corporation Limited./vs./Maharashtra General Kamgar Union – 2008 (2) BomCR 619, 2008(4) MhLj 297 and further reiterated by a learned Single Judge of a High Court of Delhi in the case of TATA Sons Ltd., /vs./Workmen and Ors., reported in (2014) I LLJ 33 Del.</b></p><p><b>6....It is only when the Court is satisfied itself that such workman had been employed in any establishment and had been receiving adequate remuneration during any such period or part thereof that the wages for that period shall not be payable.</b></p><p><b>8. In fact in the matter of Bhanulal Khimjibhai Solanki (supra), a contrary view taken by a learned single judge was considered wherein the dismissed workman was self employed by plying an auto rickshaw or rickshaw or was doing hawking and therefore the learned single judge was of the opinion that such self employment would also render the dismissed workman disentitled for seeking wages under Section 17B of the Act. This opinion of the learned single judge was not accepted by the Division Bench.</b></p><p><b>9. This Court is in respectful agreement with the decision of the Division Benches of the High Court of Gujarat as referred to by the learned counsel for the respondent workman. A plain reading of the provisions makes it clear that workman is entitled for receiving payment of full wages during the proceedings initiated at the hands of the employer&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">before the High Court or the Supreme Court “if the workman had not been employed in any establishment” and an affidavit in that regard is filed by the workman. This Court need not go any further into the proviso of Section 17B, since admittedly it is the contention of the petitioner that the respondent workman was gainfully employed on self employment by owning and driving an auto rickshaw and he was deriving adequate remuneration during the period. In view of the above, this Court is satisfied that the respondent workman is entitled for payment of full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule.</b></p><p><b>12.<span style=\"white-space:pre\">	</span>Consequently, I.A.No.1/2021 is allowed.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'd8b6fc41ee0d3c4832668fa55d829233.jpg', '46aab02efa0ac0c6c3907be059b1e4ed.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-04', 1, '', '', '2021-11-05 01:34:02', '2021-11-05 01:34:02'),
(2727, 'Mq1k5nmPC9DMe4LseONqaUUEv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When application for anticipatory bail is rejected for the offences under the SC/ST (POA) Act and confirmed by the High Court, regular bail application cannot be filed directly before the High Court. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Siji Vs State of Kerala and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.MP. 4676 of 2022 decided on 6 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A. Badharudeen.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This is an application for bail, filed under Section 438 of the Code of\r\nCriminal Procedure (for short \'the Cr.P.C.\' hereinafter), by the 4th accused in\r\nCrime No.623/2022.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Registry raised objection stating that, in this case, involving\r\noffences under Section 3(1)(r) and 3(1)(s) of the Scheduled Castes and the\r\nScheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the SC/ST\r\n(POA) Act’ hereinafter), the petitioner herein had approached the Special\r\nCourt under the SC/ST (POA) Act, by filing Crl.M.P.No.4676/2022, for grant\r\nof anticipatory bail and the same has been dismissed by the Special Court.\r\nThereafter, Crl.Appeal No.1291/2022 has been filed by the petitioner before\r\nthis Court. This Court also dismissed the Crl.Appeal. It is thereafter, a fresh\r\nbail application has been filed by the petitioner before this Court. Since\r\nRegistry is of opinion that such a fresh bail application is not maintainable <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">before this Court, this matter has been posted at the bench</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. In this case, the prosecution alleges commission of offences\r\nunder Sections 143, 147, 148, 323, 324, 308, 379, 427, 506 r/w Section 149\r\nof the Indian Penal Code and Section 3(1)(r) and 3(1)(s) of the SC/ST (POA)\r\nAct. The trial court dismissed the anticipatory bail application filed by the\r\npetitioner, highlighting the bar under Sections 18 and 18A of the SC/ST\r\n(POA) Act. On appeal, this Court also dismissed the same, holding that, this\r\nis not a case of anticipatory bail, relying on the decision of the Apex Court\r\nreported in [AIR 2020 SC 1036] Prathvi Raj Chauhan v. Union of India(UOI)\r\n& Ors.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. So, the legal question arises herein is whether a person\r\napprehending arrest in an offence under the SC/ST (POA) Act, after\r\ndismissal of his anticipatory bail application by the Special Court under the\r\nSC/ST (POA) Act, and confirmation of the said dismissal in a properly\r\ninstituted appeal filed before this Court, can seek bail directly before this\r\nCourt? No doubt, the SC/ST (POA) Act is a special enactment and the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">principle generalia specialibus non derogant, that means, special law will\r\nprevail over the general law would apply, insofar as the SC/ST (POA) Act is\r\nconcerned.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. As per Section 14-A(2), it has been specifically provided that, an\r\nappeal shall lie to the High Court against an order of the Special Court or the\r\nExclusive Special Court granting or refusing bail. The said provision presupposes the fact that the power to grant or refuse bail or anticipatory bail is\r\nvested with Special Court and the High Court can entertain the appeal\r\nagainst the orders passed by the Special Court and cannot directly deal with\r\nbail applications. In this matter, after having dismissed the anticipatory bail\r\napplication, at the instance of the petitioner and also after dismissal of the\r\nappeal filed, challenging the said dismissal, by this Court, the petitioner\r\nherein filed a fresh petition under Section 438 of the Cr.P.C., directly before\r\nthis Court. In fact, the said petition is not maintainable</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Therefore, the objection raised by the Registry is perfectly sustainable\r\nand it is held that the accused indulging in crime alleging commission of\r\noffences punishable under the SC/ST(POA) Act cannot directly approach\r\nthe High Court and seek bail. If an application for anticipatory bail or regular <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">bail, once dismissed by the Special Court and this Court also dismissed the\r\nappeal, as provided under Section 14-A of the SC/ST (POA) Act, accused\r\ncannot directly file fresh bail application before this Court. After the\r\ndismissal of the appeal, the challenge against the said dismissal will lie\r\nbefore the Hon’ble Supreme Court. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '16d98008b5bd72d04ab77a319b9f8200.jpeg', 'e688ba2be0231ae46f7e16c4c078c99b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-25', 1, '', '', '2023-02-23 15:49:53', '2023-02-25 08:29:36'),
(1140, 'Nhd2cvHb7dZ2d5xgDITqFivdV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'In a suit where prayers for declaration, possession, permanent injunction are sought for on the basis of cause of action arising on different dates, reliefs can NOT be treated as separate and distinct for the purpose of court fee. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Jaanthi Nagarajan vs P. Srinivas and others.<br></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Writ Petition 33183 of 2016 decided on 6 August 2021<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/414138/1/WP33183-16-06-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/414138/1/WP33183-16-06-08-2021.pdf</a></b></p><p><b>1. The petitioner is before this Court seeking for setting aside the order dated 13.04.2016 passed in O.S.No.4701/2013 by the III Additional City Civil and Sessions Judge at Bengaluru on preliminary issue No.3.</b></p><p><b>2.<span style=\"white-space:pre\">	</span>The suit in O.S.No.4701/2013 had been filed by respondent No.1 herein seeking for the following reliefs:</b></p><p><b><i>2.1.<span style=\"white-space:pre\">	</span>“Declaring that the Plaintiff is the absolute owner of the suit schedule premises.</i></b></p><p><b><i>2.2.<span style=\"white-space:pre\">	</span>Declaring that the Plaintiff is entitled to vacant possession of the suit schedule premises to quit and deliver the vacant possession of the same.</i></b></p><p><b><i>2.3.<span style=\"white-space:pre\">	</span>A permanent injunction restraining Defendants, their agents and anybody whomsoever employed by them from alienating/disposing of the suit schedule premises in any manner of conveyance known to law.</i></b></p><p><b>9.<span style=\"white-space:pre\">	</span>The point that would arise for determination&nbsp; of this Court is:</b></p><p><b><i>“Whether in a suit where prayers for declaration, possession, permanent injunction has been sought for on the basis&nbsp; of cause&nbsp; of action arising on different dates, could such reliefs&nbsp; be treated as separate and distinct reliefs requiring application of Section 6(3) of the Karnataka Court Fees and Suits&nbsp; Valuation Act, 1958.”</i></b></p><p><b>11. What is required to be considered by this Court is whether these prayers are separate or are they arising out of the same cause of action and form consequential reliefs.</b></p><p><b>16. The dates being different would not have an impact so as to contend that the reliefs are separate and distinct reliefs. The said dates are only as regards occurrence of events at different point of time due to which the aforesaid reliefs&nbsp; are sought for. Further more, the main relief sought for is declaration that the Plaintiff is the owner of the property. Though the word ‘consequential’ has not been used in&nbsp; other prayers, it is only in pursuance of the declaration of the Plaintiff to be the owner of the suit&nbsp; schedule premises that the Plaintiff would be entitled to the possession of the premises from defendants on they handing over the possession. Thus, all the three reliefs are intimately&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">connected to one other and form an integral part of the reliefs sought for.</b></p><p><b>17. The fourth relief as regards permanent injunction is only a relief during the pendency of the suit&nbsp; that the defendants could not alienate the property.</b></p><p><b>18. I answer to point raised by holding that in a suit where prayers for declaration, possession, permanent injunction has been sought for on the basis of cause of action arising on different dates, the reliefs sought for cannot be treated as separate and distinct reliefs requiring application of Section 6(3) of the Karnataka Court Fees and Suits Valuation Act, 1958.</b></p><p><b>19. In my considered opinion, the facts and&nbsp; the&nbsp; above matter would come within the purview of the proviso to Section 6(3) of the Court Fees Act which has been extracted hereinabove and in my considered view, the causes of action in respect of the various reliefs sought for in the plaint are against the same defendants, arising out of the same transaction and as such, the plaint shall be chargeable only with the highest of the Court fee chargeable on the reliefs mentioned&nbsp; above.&nbsp; In this case the main relief sought for being declaration of title as regard which the highest Court fee is paid, it is that Court fee on&nbsp; the&nbsp; prayer of declaration which should be payable on the plaint.</b></p><p><b>22. In the circumstances aforesaid and for the reasoning given above, the Writ Petition not having made out any case for interference stands DISMISSED.</b></p>', 'f73125626d0c6467c5ce4e0612d4c6f5.jpeg', '2d17cf52f0a4159eeee1b1c98e6ed94b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-05', 1, '', '', '2021-11-05 16:56:52', '2021-11-05 16:56:52');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1141, 'LH3jKuJPmtyy0Ne9IYOhsRaCW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Citizens have a right to get services from the Government officers in time under the Karnataka Sakaala Services Act, 2011. Karnataka High Court imposes cost for failure of Tahsildar to transfer khata and RTC in time. ', '<p><b>Narayanaswamy vs The State of Karnataka and others.<br>Writ Petition 17369 of 2021 decided on 24 September 2021<br>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/415450/1/WP17369-21-24-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/415450/1/WP17369-21-24-09-2021.pdf</a></b></p><p><b>2. The Petitioner is before this Court seeking for the following relief:</b></p><p><b><i>\"Issue a writ of mandamus directing the 4th respondent to issue the khatha and RTC in favour of the petitioner for 1 acre 28 guntas of land in Sy No.27/7 of Krishnapura village, Kasaba hobli, Bagepalli taluk, Chikkaballapur district.\"</i></b></p><p><b>5. The Karnataka Sakaala Services Act, 2011, (Sakaala Act) has been enacted to provide for guarantee of services to the citizens in the State of Karnataka. It guarantees that, the concerned officers would render the services within the stipulated time frame. The time frame being calculated from the date on which Application for such service is submitted to the designated officer or a person sub-ordinate to him authorized to receive an application.</b></p><p><b>6. The designated officer on receipt of an application under sub-section (1) of Section 5 of Sakaala Act within the stipulated time is to either directly provide the service by himself or through an officer duly authorized by him or reject the Application and in case of such rejection, record the reasons in writing for rejection and intimate to the applicant about the rejection as also information about the period of making appeal against the said rejection.</b></p><p><b>8. In terms of Section 8 of Sakaala Act, a citizen shall also be entitled for compensatory cost in case of delay or delivery of such service beyond the stipulated time.&nbsp;</b></p><p><b>9. The Government Authority is authorized under Section&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10 of Sakaala Act to appoint an officer as a competent authority to enforce cost against designated officer or his sub-ordinate for any default for delay in delivering the services.&nbsp;</b></p><p><b>10. In terms of Section 11 of Sakaala Act, within a period of 15 days of the payment of compensatory cost to the applicant, the competent officer after conducting preliminary enquiry shall issue a notice against the public servant found responsible for the delay in delivery of such citizen related services calling upon him as to why compensatory cost paid to the citizen may not be recovered.&nbsp;</b></p><p><b>11. The Schedule to the Sakaala Act provides for list of services, designated officer, stipulated time, competent officer, time limit for disposal by the competent officer, Appellate Authority, as also time limit of disposal of appeal.</b></p><p><b>13. As regards each of the above Departments, the citizen centric services are to be rendered within the time period fixed therein.</b></p><p><b>14. In the present case, we are concerned with change of Khatha (undisputed cases), which is at Sl.No.26 of Part IV of the Schedule, wherein the designated officer is Tahsildar, the time limit fixed is 60 working days, the competent officer is Assistant Commissioner who has 30 working days to dispose of the matter and the appellate authority is the Deputy Commissioner who has 30 working days to dispose of the matter.</b></p><p><b>16. On account of such violation in terms of Section 8 of Sakaala Act, the Petitioner is entitled for compensatory cost, which cannot be quantified as such, however, in my considered opinion, the Petitioner would be entitled to Rs.5,000/- as compensatory cost for the delay. The compensatory cost is directed to be paid by the 1st Respondent to the Petitioner with 15 days of the receipt of the certified copy of this order.</b></p><p><b>17. 1st Respondent State is directed in pursuance of Section 10 of Sakaala Act to appoint a competent officer as a competent authority to enforce cost against the concerned Thasildhar for default in delivering the services, within 15 days of receipt of the certified copy of this order.</b></p><p><b>18. In terms of Section 11 of Sakaala Act, within a period of 15 days of the payment of the compensatory cost to the Petitioner, the competent officer appointed by the 1st respondent State shall, after conducting a preliminary inquiry, issue a notice to the concerned Tahsildar found responsible for the delay in delivery of service calling upon him as to why compensatory cost paid to the Petitioner may not be recovered from him/her.</b></p><p><b>19. In view of the fact that the concerned service is yet to be rendered, a Mandamus is issued directing the 4th respondent to consider the Application dated 14.10.2020 submitted by the Petitioner for issuance of&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">khatha within a period of two weeks from the date of receipt of the certified copy of the order.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'f2f7feb632c5ca6cddd3f600e5c66204.jpeg', '4bb1f71d812b16a1ddf2be8fbe03cd8b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-05', 1, '', '', '2021-11-05 17:38:15', '2021-11-05 17:38:15'),
(1142, 'gcHWqfRNoHYGO8TuNDnE4RD4h', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for permanent injunction. Plaintiff admitting possession of the defendant in the plaint itself. Such a plaint is liable to be rejected under Order 7 Rule (a) of the Civil Procedure Code. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Sayed Abdul Razak vs Abdul Sattar and others&nbsp;<br></span><b>Civil Revision Petition 40 of 2021 decided on 18 August 2021<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/414304/1/CRP40-21-18-08-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/414304/1/CRP40-21-18-08-2021.pdf</a></b><b><br></b></p><p><b>1.The petitioner is before this Court seeking for setting aside the order passed on I.A. under Order VII Rule 11 read with Section 151 of CPC dated 08.02.2021 passed by the Principal Senior Civil Judge, JMFC, Anekal in O.S.No.71/2020.</b></p><p><b>2. The suit in O.S.No.71/2020 had been filed seeking for permanent injunction&nbsp;</b></p><p><b><i>Whether a plaint could be rejected under Order VII rule 11(a) of CPC when the plaintiff himself has stated in the plaint that the defendant is carrying on construction, the suit being one for bare injunction to restrain the defendant from interfering with the possession of the plaintiff?</i></b></p><p><b>9.1.<span style=\"white-space:pre\">	</span>Admittedly, the suit is for permanent injunction restraining the defendant from carrying on construction work and from interfering with the peaceful possession of the plaintiffs. For the purpose of the said suit, it is required for the plaintiffs to establish possession and the interference by&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the defendant with the such possession. The plaintiffs are therefore required to make out a ground to establish that they are in possession.</b></p><p><b>9.2.<span style=\"white-space:pre\">	</span>Reading of the above paragraphs would indicate that though the plaintiffs claim to be owners of the property and in possession thereof, it has been categorically stated that the defendant started construction of a building on the suit schedule property, as regards which photographs have been produced, a complaint was filed before the Assistant Commissioner, Bengaluru North Taluk and a request was made to the defendant to stop construction which was refused by the defendant. It is averred that&nbsp; it became necessary to stop the defendant from constructing any building in the property, with the apprehension established that the defendant may also sell the property to a third party.</b></p><p><b>9.3.<span style=\"white-space:pre\">	</span>A meaningful reading of all the above paragraphs would indicate that there is a clear and categorical admission on the part of the plaintiffs that the defendant has commenced construction work and he is putting up construction and is likely to sell the constructed area to third party. If that&nbsp; be so, it would be a clear admission in the plaint that the plaintiffs are not in possession of the suit schedule property.</b></p><p><b>9.4....The defendant cannot put up such construction without being in possession of the property. If that be so, there cannot be injunction order granted restraining a person who is in possession from interfering with so called possession of a person not in possession of the property. That being the facts, the suit being one for grant of permanent injunction, such an order cannot be passed, where the plaintiffs have themselves admitted that the defendant is in possession and putting up construction.</b></p><p><b>11.2. The said application under Order VII&nbsp; Rule&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11 read with Section 151 of CPC is allowed.</span></b></p><div><br></div>', 'b7ea90252bab15bb519216af6f4c9e4a.jpeg', 'e4c54c6ddfd4b7c566ae46233568a4cb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-07', 1, '', '', '2021-11-08 00:59:53', '2021-11-08 00:59:53'),
(1143, 'xWkoixMuI5Ig4L8a3pDkJDXMU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suits filed after amendment to Order 6 Rule 17 C.P.C are governed by the rigour and restriction contained in the proviso, which applies even in the appellate proceedings. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Chitra Bharadwaj vs K. Radhika and another<br>Miscellaneous First Appeal 58 of 2016 decided on 31 August 2021<br></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: h<a href=\"ttp://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413973/1/MSA58-16-31-08-2021.pdf\" target=\"_blank\">ttp://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413973/1/MSA58-16-31-08-2021.pdf</a></b><span style=\"font-weight: bolder;\"><br></span></p><p><b>1. The appellant – 2nd defendant is before this Court seeking for setting aside the judgment and decree passed in R.A.No.101/2012 by the IX Additional District and Sessions Judge, Bangalore Rural District remanding the appeal to the Principal Civil Judge, Bangalore Rural District as also to set aside the finding thereon.</b></p><p><b><i>1. Whether, in the present case, application filed for amendment under Rule 17 of Order VI of Code of Civil Procedure had been rightly allowed by the first Appellate Court?</i></b></p><p><b><i>2. Whether rigour of the proviso to Rule 17 of Order VII of Code of Civil Procedure would equally apply in the appellate proceedings and/or is only restricted to trial proceedings?</i></b></p><p><b>11.1. The prayers which had been sought for in the plaint are extracted hereinabove. The said prayers are for declaration of the Plaintiff to be the owner of the suit schedule property, cancellation of the sale deed executed in respect of the suit schedule property, restoration of the parties to their respective positions prior to the execution of the sale</b></p><p><b>deed and mandatory permanent injunction to remove encroachments and the structures put up on the schedule property and for direction to the defendants to deliver to the Plaintiff vacant and actual physical possession.</b></p><p><b>11.2. The contention of Sri.B.S.Subramanyam, learned Counsel for the respondent No.1 is that the amendment now sought for directing possession to be handed over to the Plaintiff was already part of the Prayer No.’ b’ inasmuch as there was a prayer sought for restoration of the parties to their respective positions prior to the execution of the document and as such, he submits that there is no new prayer, which has been sought for. It is only to make the implicit explicit that the amendment is sought for.</b></p><p><b>11.3. This contention of the learned Counsel for respondent No.1 would have to be tested on the basis of the averments made in the plaint.</b></p><p><b>11.4. While considering an application for amendment under Rule 17 of Order VI of CPC, no Court can go into the merits of the matter. However, the Court would have to look into the matter of whether the amendment is required to be allowed by the exercise of judicial discretion by applying judicial principles.</b></p><p><b>11.5. In the plaint as filed in Paragraph 9, it is contended that when Plaintiff visited the property in the first week of May 2004, she found a small structure had been put up on the schedule property and that Defendant had encroached upon the schedule property. The 1st Defendant had informed that there</b></p><p><b>11.23. Presently the suit having been filed in the year 2004 which is post amendment to the CPC, the proviso to Rule 17 of Order VI of CPC would be applicable and would have to be satisfied. The decision in Mount Mary Enterprises case supra was one where amendment is sought only to rectify the valuation. Hence, the Apex Court came to a conclusion that the same would not change the nature of the suit or cause prejudice to the Defendant.</b></p><p><b>11.24. In the present case, by seeking for relief of possession, the entire nature of the suit would be changed and further more, there would be prejudice that would be caused to the defendants inasmuch as the suit being one for declaration is now sought to be converted into suit for declaration and possession. Seeking of possession after a long length of time to fill up a lacuna pointed out by the trial Court while dismissing the said suit would obviously cause prejudice to the defendants.</b></p><p><b>11.27. The Plaintiff has not been able to establish any due diligence nor has the Plaintiff been able to show that despite due diligence the Plaintiff could not have sought for the relief of possession and/or that the amendment is sought for on account of supervening or subsequent facts. Be that as it  may.  As afore pointed even in the cause of action paragraph, the Plaintiff has categorically stated that the defendants refused to vacate the premises, which would establish that the Plaintiff was not in possession as on the date of filing of the suit. Such being the case, no grounds having been made out by the Plaintiff for seeking the amendment, the first </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Appellate Court having applied the decision in Ramchandra Sakharam Mahajan’s case supra which was the decision rendered pre- amendment to the Code of Civil Procedure which was not applicable.</b></p><p><b>11.28. I answer Point No.1 by holding that in the present case, the application filed for amendment under Rule 17 of Order VI of the Code of Civil Procedure could not have been allowed by the first Appellate Court.</b></p><p><b>11.29. I answer Point No.2 by holding that the rigour of the proviso to Rule 17 of Order VII of Code of Civil Procedure would equally apply in the appellate proceedings and/or is not restricted to trial proceedings.</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '5cb7f7459e10ff72c6d9d76f22c0844e.jpeg', 'd9263746d49a387f465c2a312c334389.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-08', 1, '', '', '2021-11-09 02:59:53', '2021-11-09 03:01:06'),
(1144, 'XtsVbmQ7UUNMdhbbXp9YhnbhN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court upholds Central Government Notification which denies admission to Overseas Citizen of India Cardholders against seats reserved exclusively for Indian citizens. ', '<p><b>Alekhya Ponnekanti &amp; another vs Union of Inida and others.</b></p><p><b>Writ Petition 11504 of 2021 and connected matters decided on 8 November 2021</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/418668/1/WP11504-21-08-11-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/418668/1/WP11504-21-08-11-2021.pdf</a></b></p><p><b>All the petitioner-students being the Overseas Citizen of India Cardholders in terms of inter alia u/ss 7A &amp; 7B of the Citizenship Act, 1955 (hereafter \'1955 Act\') are grieving before the Writ Court against a part of Central Govt. Notification dated 4.3.2021 at Annexure-A whereby certain rights of professional education vested in them by virtue of earlier Notifications dated 11.4.2005 &amp; 5.1.2009 have been taken away; after service of notice, the respondents having entered appearance through their counsel, resist the Writ Petitions by filing their Statements of Objections and by making submissions in justification of the impugned notification &amp; other consequential actions; in compliance with the request of a Division Bench of this Court, all these cases having&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">substantially similar fact &amp; legal matrices, are taken up for expeditious disposal, after rejecting the strange submission of learned ASG Mr.Nargund for deferring the hearing till after the Apex Court disposes off arguably a similar pending matter; this rejection was owing to the fact that the Central Govt. was a party eo nominee to the cases before the said DB.</b></p><p><b>In effect this Notification does not permit the OCI Cardholders&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to stake their claim for admission to any seats other&nbsp; than those availing under NRI quota and supernumerary seats.</b></p><p><b>2. FOUNDATIONAL FACTS &amp; CONTENTIONS:</b></p><p><b>(a) Petitioners hold OCI Certificates of Registration; most of them are major by age; they have been studying in the State&nbsp; of Karnataka for the past several years; they have completed their SSLC/10th Std and PUC/12th Std, on par with the&nbsp; native citizens; after their qualifying examinations, they attempted to get online registration with the Karnataka Examinations Authority (hereafter \'KEA\') to appear for the Common Entrance Test-2021; however, the KEA did not accord them registration for admission to \'Government Seats\' and non-supernumerary seats on the ground&nbsp; that&nbsp; they&nbsp; are not the Indian citizens; this is on the basis of the impugned notification.</b></p><p><b>(b) The impugned part of the subject notification (as concised) reads as under:</b></p><p><b>(d) Admittedly OCI Cardholders possess the Passports issued by their countries; they have obtained&nbsp; OCI&nbsp; Registration Certificates in which their Foreign Nationality is specifically mentioned; nowhere therein, it is stated that they are the Indian citizens; it is pertinent to mention that the Single Judge while allowing the Writ Petitions vide judgment dated 10.4.2019 specifically recorded a finding at several paragraphs therein that the OCI Cardholders are not Indian citizens; Mr.Dhyan Chinnappa, learned Addl. Advocate General appearing for the respondent State is more than justified in contending that the DB had framed four principal \"POINTS FOR CONSIDERATION\" at para 46 of its judgment and none of them related to status of OCI Cardholders as citizens; in fact, the articulate premise of the judgment of the Single Judge and the inarticulate premise of the Division Bench judgment are that the OCI Cardholders are not the Indian citizens; it is very logical that the status of OCI Cardholders and that of the Indian citizens are mutually exclusive, as rightly contended by the learned ASG Mr.Nargund; therefore, some observations in the&nbsp; DB judgment as to the OCI Cardholders arguably being the&nbsp; Indian citizens do not dilute the specific finding of the Single Judge that they are not; had the DB framed a&nbsp; specific&nbsp; question as to citizenship status of the OCI Cardholders, it would have been a different matter.</b></p><p><b>(iii)<span style=\"white-space:pre\">	</span>It is also true that a distinction is made in practically all countries between citizens &amp; non-citizens and between domiciled &amp; non-domiciled aliens, with reference to their rights &amp; duties; how the aliens should be treated is essentially a policy matter left&nbsp; to&nbsp; the&nbsp; wisdom&nbsp; of&nbsp; the government of the day; a host of pragmatic factors and the lessons gained from experience enter the fray of foreign- policy-making; all those which&nbsp; figure&nbsp; in&nbsp; the&nbsp; evolvement&nbsp; of&nbsp; such policies, by their very nature are complex and often the courts lack expertise in assessing their worth &amp; relevance.</b></p><p><b>(b) The Central Govt. in its wisdom had created those rights &amp; facilities at will as a delegate of the Parliament; ordinarily, the legislative &amp; quasi-legislative process culminating in a statutory instrument of the kind does not admit the violation of principles of natural justice as a ground for its invalidation; the impugned Notification has been issued in exercise of quasi-legislative power availing in terms of sub-section (1) of section 7B and thus, it is a piece of subordinate legislation;&nbsp;</b></p><p><b>In view of the above, these Writ Petitions being devoid of merits fail, costs having been made easy; however in the special circumstances of the case, all the petitioners are permitted to stake claim for admission consistent with the interim reliefs made in favour with many of them, subject to the eligibility &amp; qualification; a period of ten days is granted&nbsp; to the petitioners to produce requsite documents before the Karnataka Examination Authority.</b></p><p><b>Before parting with this case, this Court places on record its appreciation for the assistance rendered by learned advocate Sri S.Yathish and by Sri Faiz Afsar Sait, Law Clerk- cum-Research Assistant.</b></p><p></p><p><br></p>', 'aec6b3e11d47c47e42b4e84e11125fbc.jpg', 'f5addccbcf107381bbc09e1feccb26fc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-09', 1, '', '', '2021-11-10 00:23:49', '2021-11-10 00:23:49'),
(2669, 'AqiH79AYRqh6uAL1goeyPue3D', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Plaint in a suit for partition based on amended Section 6 of the Hindu Succession Act is liable to be rejected if there is clear admission in the plaint about registered partition of ancestral properties prior to the amendment. Karnataka High Court.', '<p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Sooryanarayana Sharma vs Padmini R Bhat.&nbsp;</b></span></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Civil Revision Petition 39 of 2017 decided on 5 October 2021.&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Justice Suraj Govindaraj.&nbsp;</b></span></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"></span></b></p><p><b>10. The short question that would arise for the determination of this Court is, if a partition deed has been registered prior to 20.12.2004 could a suit for partition be maintained by virtue of the amendment to Section 6 of the Hindu Succession Act, 1956 which came into effect from 09.09.2005?</b></p><p><b>15. As stated in para-II(1), the Plaintiff has categorically admitted about a partition deed having been executed and registered on 16.03.2003 as Document No.I- 850/1999-2000 of S.R.O Vittal, Bantwal Tq. D.K. It is categorically stated that the entire family has&nbsp; executed the said partition deed.</b></p><p><b>17. In the suit, the cause of action has been ascribed to 16.03.2003 when the partition deed was executed and on 19.09.2008 when the Plaintiff formally decided to claim her share in the ‘B’ schedule property. Though&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">there are several averments made in the plaint as regards the partition deed being mischievous or fraudulent and concocted document, there is no challenge made to the partition deed in the suit as filed, the prayer is only for direction for partition of ‘B’ schedule property into 8 equal shares by metes and bound.</span></b></p><p><b>18. In the above circumstances, I am of the considered opinion that the proviso to Sub-Section (1) of Section 6 would come into play when there is no challenge to&nbsp; a partition deed which has been executed and infact there is an admission made that a partition deed has been executed and registered, the registration details thereof provided in the plaint, the Plaintiff would not&nbsp; be entitled to any relief for partition by claiming under the amendment of the Hindu Succession Act,1 956 to Section 6 thereof. Since there is a categorical exception created by the said proviso that any right&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">granted to a female Hindu who is deemed to be a coparcener by way of an amendment cannot&nbsp; invalidate any disposition or alienation including any partition testamentary disposition which have taken place prior to 20.12.2004.</span></b></p><p><b>19. The only ground on which the trial Court has rejected the application under Order VII Rule 11 of CPC is that a trial is needed to ascertain as to whether there was infact partition deed executed that in my considered opinion would not be required since exfacie there is a partition deed executed between the branch of the Plaintiff, defendants and a larger family as stated in para-II(i), it is exfacie apparent from the pleading of the plaint that a partition deed has been admitted.</b></p><p><b>20. There was no challenge made to the partition deed, a mere suit for partition would not be maintainable in&nbsp; the teeth of the proviso to Sub-Section (1) of Section&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6 of the Hindu Succession Act. In view thereof, I pass the following:</span></b></p><p><b>(i) The impugned order dated 03.01.2017&nbsp; passed by the Principal Senior Civil Judge and ACJM at Puttur in O.S.No.10/2009 is set aside.</b></p><p><b>(ii) Application in I.A.No.5 under Order VII Rule 11(a) of CPC filed in O.S.No.10/2009 is allowed.</b></p><p><b>(iii) Plaint is rejected.</b></p>', '193024f97bf8594412cb183e49b0ee64.jpeg', 'c845a07e1fc359fda9f606430f90d114.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-14', 1, '', '', '2023-02-14 10:26:38', '2023-02-14 10:26:38'),
(1146, 'oZPjQRMDxsnWzQe1Y6xnVEJRJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Political interference in transfers and posting of officers results in politicization of public office which would result in putting public efficiency and good administration to peril. Karnataka High Court. ', '<p><b>D.Naveen vs State of Karnataka and others.&nbsp;<br>Writ Petition 5399 of 2021 decided on 10 November 2021<br>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/418864/1/WP8952-21-10-11-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/418864/1/WP8952-21-10-11-2021.pdf</a></b></p><p><b>The petitioner, who is common in both these writ petitions, calls in question certain orders&nbsp; of&nbsp; transfer&nbsp; dated 10.03.2021, 12.03.2021 and 05.04.2021, on the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ground that the said orders are contrary to law.&nbsp;</b></p><p><b>In terms of the aforesaid observations of the Apex Court what becomes clear is that transfer was sought by&nbsp; the&nbsp; MLA on the ground that the incumbent officer&nbsp; had&nbsp; several complaints against him. The MLA being the representative of the people was entitled to get the officer transferred on the allegation. The Apex Court holds that it was the duty of the representative of the people in the Legislature to express the grievance of the people and if there are any complaints against the officer it would certainly within the jurisdiction of the MLA to get such an officer transferred. These are not the facts in the case at hand. Political interference is generated by a Minister when the petitioner did not even take charge of the post. The impugned action at the behest of the Minister is only for showing favourtism to the 8th respondent by directing&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that he shall be continued in office and the petitioner be sent out by modification of the order of transfer.</b></p><p><b>In terms of undisputed glaring facts and the judgment of the Apex Court supra, the proceedings of transfer impugned in the case at hand would&nbsp; get vitiated as&nbsp; it is&nbsp; at the instance of a politician/Hon\'ble Minister. In my view, political interference in transfers and posting of officers would result in politicization of public office,which would result in putting public efficiency and good administration to peril, the interference of any kind, be it written or oral.&nbsp;</b></p><p><b>The Writ Petitions are allowed.</b></p><p><br></p>', '0df0976e22f866517010455d462c1ae3.jpg', '91689fcb6b4dfb6338f5f2f467a396f5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-10', 1, '', '', '2021-11-11 04:07:45', '2021-11-11 04:07:45'),
(1147, 'TQEby44bMpgSL7TxnLQSG08L4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Complaint under Section 138 in the name of the Managing Director followed by Company name is NOT defective especially when he is authorised by a Board resolution to file complaint.  Supreme Court. ', '<p><b>Bhupesh Rathod vs Dayashakar Prasad Chaurasia and another <br>Criminal Appeal 1105 of 2021 decided on 10 November 2021<br>Justice <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Sanjay Kishan Kaul and Justice </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">M.M. Sundresh<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2015/42553/42553_2015_6_1501_31232_Judgement_10-Nov-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2015/42553/42553_2015_6_1501_31232_Judgement_10-Nov-2021.pdf</a></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p><b>18. The only eligibility criteria prescribed under Section 142(1)(a) is\r\nthat the complaint must be by the payee or the holder in due course.\r\n</b></p><p><b>19. In the conspectus of the aforesaid principles we have to deal with\r\nthe plea of the respondent that the complaint was not filed by the\r\ncompetent complainant as it is the case that the loan was advanced by the\r\nCompany. As to what would be the governing principles in respect of a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">corporate entity which seeks to file the complaint, an elucidation can be\r\nfound in the judgment of this Court in Associated Cement Co. Ltd. v.\r\nKeshavanand </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(1998) 1 SCC 687</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">. If a complaint was made in the name of the Company, it\r\nis necessary that a natural person represents such juristic person in the\r\ncourt and the court looks upon the natural person for all practical\r\npurposes. It is in this context that observations were made that the body\r\ncorporate is a de jure complainant while the human being is a de facto\r\ncomplainant to represent the former in the court proceedings. Thus, no\r\nMagistrate could insist that the particular person whose statement was\r\ntaken on oath alone can continue to represent the Company till the end of\r\nthe proceedings. Not only that, even if there was initially no authority\r\nthe Company can at any stage rectify that defect by sending a competent\r\nperson.</span></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20. The aforesaid judgment was also taken note of in a subsequent\r\njudgment of this Court in M.M.TC Ltd. & Anr. v. Medchl Chemicals\r\nand Pharma (P) Ltd. & Anr </span>(2002) 1 SCC 234<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> .\r\n</span></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">21. We find that the judicial precedents cited aforesaid have been\r\nbreached by the Courts below. The High Court also embarked on a </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">discussion as to the vagueness of the identity of the complainant\r\nand its relation with the legality of a loan which may be granted by\r\nthe Company, something that was not required to be gone into.</span></b></p><p><b>22. If we look at the format of the complaint which we have extracted\r\naforesaid, it is quite apparent that the Managing Director has filed the\r\ncomplaint on behalf of the Company. There could be a format where the\r\nCompany’s name is described first, suing through the Managing Director\r\nbut there cannot be a fundamental defect merely because the name of the\r\nManaging Director is stated first followed by the post held in the\r\nCompany.\r\n</b></p><p><b>23. It is also relevant to note that a copy of the Board Resolution was\r\nfiled along with the complaint. An affidavit had been brought on record\r\nin the trial court by the Company, affirming to the factum of\r\nauthorisation in favour of the Managing Director. A Manager or a\r\nManaging Director ordinarily by the very nomenclature can be taken to\r\nbe the person in-charge of the affairs Company for its day-to-day\r\nmanagement and within the activity would certainly be calling the act of\r\napproaching the court either under civil law or criminal law for setting the trial in motion.4\r\n It would be too technical a view to take to defeat the\r\ncomplaint merely because the body of the complaint does not elaborate\r\nupon the authorisation. The artificial person being the Company had to\r\nact through a person/official, which logically would include the\r\nChairman or Managing Director. Only the existence of authorisation\r\ncould be verified.</b></p><p>\r\n</p><p><b>24. While we turn to the authorisation in the present case, it was a\r\ncopy and, thus, does not have to be signed by the Board Members, as that\r\nwould form a part of the minutes of the Board meeting and not a true\r\ncopy of the authorisation. We also feel that it has been wrongly\r\nconcluded that the Managing Director was not authorised. If we peruse\r\nthe authorisation in the form of a certified copy of the Resolution, it\r\nstates that legal action has to be taken against the respondent for\r\ndishonour of cheques issued by him to discharge his liabilities to the\r\nCompany. To this effect, Mr. Bhupesh Rathod/Sashikant Ganekar were\r\nauthorised to appoint advocates, issues notices through advocate, file\r\ncomplaint, verifications on oath, appoint Constituent attorney to file\r\ncomplaint in the court and attend all such affairs which may be needed in\r\nthe process of legal actions. What more could be said?<br></b></p><p><b>25. The finding by the Courts below as to the lack of authorisation to\r\ndepose also, thus, stands nullified.</b></p><p><b>26. The description of the complainant with its full registered office\r\naddress is given at the inception itself except that the Managing\r\nDirector’s name appears first as acting on behalf of the Company. The\r\naffidavit and the cross-examination in respect of the same during trial\r\nsupports the finding that the complaint had been filed by the Managing\r\nDirector on behalf of the Company. Thus, the format itself cannot be\r\nsaid to be defective though it may not be perfect. The body of the\r\ncomplaint need not be required to contain anything more in view of what\r\nhas been set out at the inception coupled with the copy of the Board\r\nResolution. There is no reason to otherwise annex a copy of the Board\r\nResolution if the complaint was not being filed by the appellant on behalf\r\nof the Company</b><br></p>', '945e0abc627c4c998240cbfe47ae0304.JPG', '8e10f530fe52e981409a8261e3f0f2a0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-11', 1, '', '', '2021-11-11 17:22:01', '2021-11-11 17:22:52'),
(1148, '22plMoXasyMZyEXaVVdEytVQv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'A total ban on legal mining, apart from giving rise to illegal mining, also causes huge loss to the public exchequer.\'\' Supreme Court while modifying the order of the National Green Tribunal. ', '<p><b>The State of Bihar and others vs Pawan Kumar and others.&nbsp;<br>Civil Appeal 3661-3662 of 2020 decided on 10 November 2021<br>Justice L. Nageswara Rao, Justice Sanjiv Khanna and Justice B.R. Gavai</b><br><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link:&nbsp;</span><a href=\"https://main.sci.gov.in/supremecourt/2020/23415/23415_2020_5_1501_31170_Judgement_10-Nov-2021.pdf\" target=\"_blank\" style=\"font-weight: bolder; background-color: rgb(255, 255, 255); font-family: var(--bs-font-sans-serif); font-size: 1rem;\">https://main.sci.gov.in/supremecourt/2020/23415/23415_2020_5_1501_31170_Judgement_10-Nov-2021.pdf</a><br></p><p><b>1. The present appeals challenge the judgment and order dated&nbsp; &nbsp;14th&nbsp; October&nbsp; &nbsp;2020,&nbsp; &nbsp;passed&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;National&nbsp; Green Tribunal, Principal Bench, New Delhi (hereinafter referred to as “the&nbsp; &nbsp;Tribunal”)&nbsp; &nbsp;in&nbsp; &nbsp;O.A.&nbsp; &nbsp;No.&nbsp; &nbsp;40/2020/EZ&nbsp; with O.A. No. 57/2020/EZ, thereby issuing the following directions:­</b></p><p><b>(i) “Having regard to the findings at (a), (b) and (c) above, we direct the State to undertake further exercise for preparation of a fresh DSR for the Banka district.&nbsp;</b></p><p><b>(ii) As&nbsp; &nbsp;the&nbsp; &nbsp;DEIAA&nbsp; &nbsp;is&nbsp; &nbsp;not&nbsp; &nbsp;functioning&nbsp; &nbsp;as&nbsp; &nbsp;a consequence of the decision of the Tribunal in Satendra&nbsp; &nbsp;Pandey&nbsp; (supra),&nbsp; &nbsp;the&nbsp; &nbsp;DSR&nbsp; &nbsp;shall&nbsp; &nbsp;be prepared through a consultant(s) accredited by the National Accreditation Board of Education and Training/Quality Control Council of India in&nbsp; &nbsp;terms&nbsp; &nbsp;of&nbsp; &nbsp;O.M.&nbsp; &nbsp;of&nbsp; &nbsp;MoEF&nbsp; &nbsp;&amp;&nbsp; &nbsp;CC&nbsp; &nbsp;dated 16.03.2010.&nbsp;</b></p><p><b>(iii) The DSR so prepared shall be submitted to the District Magistrate who shall verify the DSR only in respect of the relevant facts pertaining to the physical and geographical features of the district which shall be distinct from the scientific&nbsp; &nbsp;findings&nbsp; &nbsp;based&nbsp; &nbsp;on&nbsp; &nbsp;the&nbsp; &nbsp;parameters prescribed in the SSMMG­ 2016. After such verification,&nbsp; &nbsp;the&nbsp; &nbsp;District&nbsp; &nbsp;Magistrate&nbsp; &nbsp;shall forward&nbsp; &nbsp;the&nbsp; &nbsp;DSR&nbsp; &nbsp;for&nbsp; &nbsp;examination&nbsp; &nbsp;and evaluation&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;State&nbsp; &nbsp;Expert&nbsp; &nbsp;Appraisal Committee (SEAC) having regarding to the fact that&nbsp; &nbsp;the&nbsp; &nbsp;SEIAA&nbsp; &nbsp;comprises&nbsp; &nbsp;of technical/scientific&nbsp; &nbsp;experts.&nbsp; &nbsp;The&nbsp; &nbsp;SEAC&nbsp; &nbsp;after appraisal of the report shall forward it to the SEIAA&nbsp; &nbsp;for&nbsp; &nbsp;consideration&nbsp; &nbsp;and&nbsp; &nbsp;approval&nbsp; &nbsp;if&nbsp; &nbsp;it meets all scientific/technical requirements.&nbsp;</b></p><p><b>(iv) While&nbsp; &nbsp;preparing&nbsp; &nbsp;the&nbsp; &nbsp;DSR,&nbsp; &nbsp;the&nbsp; &nbsp;MoEF&nbsp; &nbsp;&amp;&nbsp; &nbsp;CC Accredited&nbsp; &nbsp;Agency/Consultant&nbsp; &nbsp;shall scrupulously&nbsp; &nbsp;follow&nbsp; &nbsp;the&nbsp; &nbsp;procedure&nbsp; &nbsp;and&nbsp; &nbsp;the parameters laid down under the SSMMG­2016 and&nbsp; &nbsp;EMGSM­2020&nbsp; &nbsp;read&nbsp; &nbsp;in&nbsp; &nbsp;sync&nbsp; &nbsp;with&nbsp; &nbsp;each other.”&nbsp;</b></p><p><b>7. It cannot be in dispute that though the developmental activities&nbsp; are&nbsp; &nbsp;not&nbsp; &nbsp;stalled,&nbsp; &nbsp;the&nbsp; environmental&nbsp; &nbsp;issues&nbsp; &nbsp;are&nbsp; &nbsp;also required to be addressed. A balanced approach of sustainable development ensuring environmental safeguards, needs to be resorted to.&nbsp; At the same time, it also cannot be ignored that when legal mining is banned, it gives rise to mushroom growth of illegal mining, resulting into clashes between sand mafias, criminalization&nbsp; &nbsp;and&nbsp; &nbsp;at&nbsp; &nbsp;times,&nbsp; &nbsp;loss&nbsp; of&nbsp; human&nbsp; lives.&nbsp; It&nbsp; also cannot be disputed that sand is required for construction of public infrastructural projects as well as public and private construction activities.&nbsp; A total ban on legal mining, apart from giving rise to illegal mining, also causes huge loss to the public exchequer.</b></p><p><b>12. It&nbsp; &nbsp;is&nbsp; &nbsp;to&nbsp; &nbsp;be&nbsp; &nbsp;noted&nbsp; &nbsp;that&nbsp; &nbsp;with&nbsp; &nbsp;the&nbsp; &nbsp;advent&nbsp; &nbsp;of&nbsp; &nbsp;modern technology,&nbsp; &nbsp;various&nbsp; &nbsp;technological&nbsp; &nbsp;gadgets&nbsp; &nbsp;like&nbsp; Drones&nbsp; &nbsp;and satellite&nbsp; &nbsp;imaging&nbsp; &nbsp;etc.&nbsp; &nbsp;can&nbsp; &nbsp;be&nbsp; &nbsp;used&nbsp; &nbsp;for&nbsp; &nbsp;identification&nbsp; &nbsp;of&nbsp; &nbsp;the potential sites and preparation of the DSR and also to check misuse and unauthorized mining</b></p><p><b>14. We&nbsp; &nbsp;therefore&nbsp; &nbsp;find&nbsp; &nbsp;it&nbsp; &nbsp;appropriate&nbsp; &nbsp;to&nbsp; &nbsp;substitute&nbsp; &nbsp;the directions&nbsp; &nbsp;issued&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;Tribunal&nbsp; &nbsp;vide&nbsp; &nbsp;judgment&nbsp; &nbsp;and&nbsp; &nbsp;order dated 14th October 2020, with the following directions:­</b></p><p><b>(i) The&nbsp; &nbsp;exercise&nbsp; &nbsp;of&nbsp; &nbsp;preparation&nbsp; &nbsp;of&nbsp; &nbsp;DSR&nbsp; &nbsp;for&nbsp; &nbsp;the purpose of mining in the State of Bihar in all the districts shall be undertaken afresh.&nbsp; &nbsp;The draft DSRs&nbsp; &nbsp;shall&nbsp; &nbsp;be&nbsp; &nbsp;prepared&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;sub­divisional committees&nbsp; &nbsp;consisting&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Sub­Divisional Magistrate, Officers from Irrigation Department, State&nbsp; &nbsp;Pollution&nbsp; &nbsp;Control&nbsp; &nbsp;Board&nbsp; &nbsp;or&nbsp; &nbsp;Committee, Forest Department, Geological or mining officer. The same shall be prepared by undertaking site visits and also by using modern technology. The said&nbsp; &nbsp;draft&nbsp; &nbsp;DSRs&nbsp; &nbsp;shall&nbsp; &nbsp;be&nbsp; &nbsp;prepared&nbsp; &nbsp;within&nbsp; &nbsp;a&nbsp; period of 6 weeks from the date of this order. After the draft DSRs are prepared, the District Magistrate&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;concerned&nbsp; &nbsp;District&nbsp; &nbsp;shall forward the same for examination and evaluation by the SEAC.&nbsp; &nbsp;The same shall be examined by the SEAC within a period of 6 weeks and its report shall be forwarded to the SEIAA within the aforesaid period of 6 weeks from the receipt of&nbsp; &nbsp;it. The&nbsp; SEIAA&nbsp; will&nbsp; thereafter&nbsp; &nbsp;consider&nbsp; &nbsp;the grant of approval to such DSRs within a period of 6 weeks from the receipt thereon;</b></p><p><b>(ii) Needless to state that while preparing DSRs and the&nbsp; &nbsp;appraisal&nbsp; &nbsp;thereof&nbsp; &nbsp;by&nbsp; &nbsp;SEAC&nbsp; &nbsp;and&nbsp; &nbsp;SEIAA,&nbsp; &nbsp;it should be ensured that a strict adherence to the procedure&nbsp; &nbsp;and&nbsp; &nbsp;parameters&nbsp; &nbsp;laid&nbsp; &nbsp;down&nbsp; &nbsp;in&nbsp; &nbsp;the policy of January 2020 should be followed;</b></p><p><b>(iii) Until&nbsp; &nbsp;further&nbsp; &nbsp;orders,&nbsp; &nbsp;we&nbsp; &nbsp;permit&nbsp; &nbsp;the&nbsp; &nbsp;State Government&nbsp; &nbsp;to&nbsp; &nbsp;carry&nbsp; &nbsp;on&nbsp; &nbsp;mining&nbsp; &nbsp;activities 14 through&nbsp; &nbsp;Bihar&nbsp; &nbsp;State&nbsp; &nbsp;Mining&nbsp; &nbsp;Corporation&nbsp; &nbsp;for which&nbsp; &nbsp;it&nbsp; &nbsp;may&nbsp; &nbsp;employ&nbsp; &nbsp;the&nbsp; &nbsp;services&nbsp; &nbsp;of&nbsp; &nbsp;the contractors. However, while doing so, the State Government shall ensure that all environmental concerns are taken care of and no damage is caused to the environment.</b></p><p><b>15. List the matter after 20 weeks.&nbsp;</b></p><p><br></p>', '567e91c4a163d370e7c825ae0eff3c90.jpg', 'ba16c5c7ea6933a9727fe54bc3e8c941.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-11', 1, '', '', '2021-11-11 17:53:55', '2021-11-11 17:53:55');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1149, 'xw3b3QM6n0OHAfaPDDar3aWKP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land Acquisition. Time to pass awards in respect of proceedings initiated under 1894 Act, if not passed when 2013 Act came into force, is twelve months from 2013 Act and not two years from Section 6 declaration under the 1894 Act. Supreme Court. ', '<p><b>The Executive Engineer Gosikhurd Project Ambadi, Bhandara vs Mahesh and others.<br>Civil Appeal ..2021 (SLP 13093-13094 of 2018 decided on 10 November 2021<br>Justice A.M. Khanwilkar and Justice Sanjiv Khanna<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2018/14699/14699_2018_13_1501_31116_Judgement_10-Nov-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/14699/14699_2018_13_1501_31116_Judgement_10-Nov-2021.pdf</a></b><b><br></b></p><p><b>The legal issue that arises in these appeals relates to interpretation\r\nof Section 24(1)(a) of The Right to Fair Compensation and\r\nTransparency in Land Acquisition, Rehabilitation and Resettlement\r\nAct, 2013, and in particular the question:\r\n</b></p><p><i><b>Whether the two-year period specified under Section 11A\r\nof the Land Acquisition Act, 1894 will apply even after the repeal of the 1894 Act, or the&nbsp;twelve-month period specified in Section 25 of the 2013\r\nAct will apply for the awards made under clause (a) of\r\nSection 24(1) of the 2013 Act?&nbsp;</b></i></p><p><b>5<i>....</i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Simply put, Section 11A requires that an award under Section\r\n11 must be passed within a period of two years from the date of\r\npublication of the declaration and if no award is so made, the\r\nproceedings for acquisition of land shall lapse. As per the\r\nexplanation, the period during which any action or proceedings to\r\nbe taken pursuant to the declaration is stayed by an order of a court\r\nis to be excluded while calculating the period of two years.</span></b></p><p><b>7.....Section 6 of the General Clauses Act interdicts the common\r\nlaw principle that an enactment after repeal is ineffective as if it had\r\nnever existed, except as to matters past and closed. Section 6 is a\r\ngeneral transitory provision that resurrects operation of the\r\nrepealed law in terms of comprehensive and broadly worded\r\nclauses (a) to (e). Clauses (b), (c) and (e) of Section 6, in particular,\r\nstate that the repeal does not affect anything duly done or suffered\r\nunder the repealed enactment; any right, privilege, obligation or\r\nliability acquired or accrued under any repealed enactment; or any\r\ninvestigation, legal proceedings or remedy in respect of any such\r\nright, privilege, obligation, liability, penalty, etc. Legal proceedings,\r\ninvestigation or remedy may be instituted, continued or enforced,\r\nand any penalty, punishment or forfeiture may be enforced as if the&nbsp;repealed Act or regulation were still in existence notwithstanding its\r\nrepeal. However, the savings of Section 6 do not apply to some\r\nextent or in entirety when the legislative intent is different. The\r\ncontrary intent can be expressed or gathered by necessary\r\nimplication. Further, the ambit of repeal cannot be wider than the\r\nboundary envisaged by the repealing enactment. Therefore, a\r\ncomprehensive repeal may be limited if the repealing enactment\r\ndirectly or by necessary implication clamours that it will not apply to\r\ncertain matters.\r\n&nbsp;<i><br></i></b></p><p><b>8. Section 114 of the 2013 Act repeals the 1894 Act, which ceases to\r\nbe effective and applicable from the date of enforcement of the\r\n2013 Act. In terms of sub-section (2) to Section 114, the repeal shall\r\nnot act so as to prejudice or affect application of Section 6 of the\r\nGeneral Clauses Act. However, the application of Section 6 of the\r\nGeneral Clauses Act is subject to “save as otherwise provided” by\r\nthe 2013 Act. In other words, when it is commanded or imperative\r\nby the provisions of the 2013 Act, Section 6 of the General Clauses\r\nAct is not to be given legal effect.<i><br></i></b></p><p><b>9. Sub-section (1) to Section 24 of the 2013 Act is a non-obstante\r\nclause. It confers the provision with an overriding status over other\r\nprovisions. Accordingly, in terms of Sections 24(1) of the 2013 Act,&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 114 of the 2013 Act as well as Section 6 of the General\r\nClauses Act will not apply to the extent hindered by Section 24(1)\r\nof the 2013 Act. The reason is that Section 114 of the 2013 Act,\r\nwhile accepting the applicability of Section 6 of the General Clauses\r\nAct, makes its application subject to “save as otherwise provided”\r\nin the 2013 Act. Further, Section 6 of the General Clauses Act itself\r\nstates that the general savings will not apply when the legislative\r\nintent is contrary.</span></b></p><p><b>10. Section 24(1) deals with two specific situations where the land\r\nacquisition proceedings were initiated before the repeal of the 1894\r\nAct, namely: (i) where an award has been made, and (ii) where an\r\naward has not been made. As per clause (b) to Section 24(1) where\r\nan award under Section 11 of the 1894 Act has been made, the\r\nproceedings would continue under the repealed 1894 Act,\r\nnotwithstanding its repeal. In such cases, the 2013 Act will not\r\napply. Clause (b) to Section 24(1) is not applicable in the case at\r\nhand as it is admitted that no award was made on or before 31st\r\nDecember 2013.<i><br></i></b></p><p><b>11. In the present case, clause (a) to Section 24(1) of the 2013 Act\r\nwould apply as the land acquisition proceedings initiated under the\r\n1894 Act had not culminated into an award till the repeal of the 1894\r\nAct. Section 24(1)(a) partly nullifies the legal effect of savings under\r\nSection 6 of the General Clauses Act as it hybridizes application of\r\nthe 1894 Act and the 2013 Act. While preserving validity of the\r\nacquisition proceedings by issue of declarations under the 1894\r\nAct, it states that all the provisions for determination of\r\ncompensation under the 2013 Act shall apply. The section\r\nconsciously saves the legal effect of the notifications issued under\r\nSection 4 and/or Section 6 of the 1894 Act and obviates the\r\nnecessity to issue a fresh notification under the 2013 Act. This\r\n‘perseveration of the determination date’ for the computation of\r\ncompensation for the awards made under Section 24(1)(a) of the\r\n2013 Act is a thought through legislative invocation that curtails time\r\ndelays and cost escalation of infrastructure projects, as well as\r\nchecks the post-acquisition notification malpractices, and at the\r\nsame time ensures that the landowners are entitled to the benefit\r\nof the enhanced compensation as per the 2013 Act.&nbsp;<i><br></i></b></p><p><b>15. Clearly, Section 11A of the 1894 Act and Section 25 of the 2013\r\nAct prescribe two different periods of limitation with adverse\r\nconsequences, as on failure to make the award the acquisition\r\nproceedings lapse. The choice is between Section 11A of the 1894\r\nAct and Section 25 of the 2013 Act. Absence of precise words or&nbsp;express declaration would not inhibit us from interpreting and\r\nexercising the right choice, keeping in view the language as also\r\nthe object and purpose of clause (a) to Section 24(1) of the 2013\r\nAct. In other words, we have to give effect and meaning to the\r\nunderlying intention of the Parliament in the words “all the\r\nprovisions relating to determination of compensation” under the\r\n2013 Act.</b></p><p><b>16. We begin by examining the phrasing of clause (a) to Section 24(1)\r\nof the 2013 Act. We would prefer to read the words “all the\r\nprovisions relating to determination of compensation” in Section\r\n24(1)(a) as including the period of limitation specified in Section 25\r\nof the 2013 Act. To elaborate, the word ‘all’ and the expression\r\n“relating to” used in Section 25 are required to be given a wide\r\nmeaning to ensnare the legislative intent. The expressions “relating\r\nto” or “in relation to” are words of comprehensiveness which may\r\nhave a direct as well as indirect significance depending on the\r\ncontext.<i><br></i></b></p><p><b>18. Section 25 is a rule of procedure immediately following Section 24\r\nand a part of fasciculus of “all the provisions”, from Sections 25 to\r\n30, “relating to determination of compensation”. Hence, the\r\nexpression “all the provisions relating to the determination of\r\ncompensation” under the 2013 Act will encompass Section 25 of\r\nthe 2013 Act.&nbsp;<i><br></i></b></p><p><b>20.... Consequently, we&nbsp;hold that in cases covered by clause (a) to Section 24(1) of the 2013\r\nAct, the limitation period for passing/making of an award under\r\nSection 25 of the 2013 Act would commence from 1st January 2014,\r\nthat is, the date when the 2013 Act came into force. Awards passed\r\nunder clause (a) to Section 24(1) would be valid if made within\r\ntwelve months from 1st January 2014. This dictum is subject to the\r\ncaveat stated in paragraph 16 (supra) that a declaration which has\r\nlapsed in terms of Section 11A of the 1894 Act before or on 31st\r\nDecember 2013 would not get revived.&nbsp;</b></p><p><b>40. In view of the aforesaid discussion, we hold as under:\r\n</b></p><p><b>(i) Section 25 of the 2013 Act would apply to the awards made\r\nand published under Section 24(1)(a) of the 2013 Act.</b></p><p><b>(ii) The limitation period for passing/making of an award under\r\nSection 24(1)(a) in terms of Section 25 of the 2013 Act would\r\ncommence from 1st January 2014, that is, the date when the\r\n2013 Act came into force<i><br></i>(iii) Period during which the Court order would inhibit action on\r\nthe part of the authorities to proceed with the making of the\r\naward would be excluded while computing the period under\r\nSection 25 of the 2013 Act.</b><br></p>', '2e03b44c193ab80477c4ab7adb1a583a.JPG', '1deee82b283d551da38ab3917e4df8ba.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-11', 1, '', '', '2021-11-11 18:52:24', '2021-11-11 18:52:24'),
(4516, 'v74Z2z3247LWYnIvw3Phe5r4e', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Partition. Property purchased by Karta-Manager in the name of his minor son out of joint family funds is also a joint family property liable for partition. Supreme Court.', '<h4><b>Surendra Kumar vs Phoolchand, </b></h4><h4><b>Civil Appeal 833 of 1987 decided on 2 February 1996.</b></h4><h4></h4><h4><b>Justice K. Ramaswamy and Justice G.B. Pattanaik. </b></h4><h4><b>Judgment Link: <a href=\"https://main.sci.gov.in/jonew/judis/16084.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/16084.pdf</a></b></h4><h4><b>Reported in (1996) 2 SCC 491</b></h4><h4><b><span style=\"background-color: rgb(255, 255, 0);\">Relevant paragraphs</span>: 6. Coming to the second question it is an admitted fact that Chhogalal was the eldest member of the family and was the manager of the joint family consisting of Chhogalal, Ramchandra and Phoolchand. The agreement to sale is stated to have been made in the year 1951 and consideration money had been paid in 1951 and 1952 and finally sale deed was executed in the year 1961. <span style=\"background-color: rgb(255, 255, 0);\">At that point of time the present appellant was a minor and the property was therefore purchased in the name of the minor with Chhogalal as the guardian.</span> In course of the proceedings appellant has taken the specific plea that the consideration money had been paid by his maternal grandfather and that plea has been rejected by the courts below on consideration of material with the finding that the appellant has failed to establish the same. <span style=\"background-color: rgb(255, 255, 0);\">Thus there is no material to establish that consideration money for the property was paid by the appellant from out of his separate funds.</span> It is no doubt true that there is no presumption that a family because it is joint possessed joint property and therefore the person alleging the property to be joint has to establish that the family was possessed of some property with the income of which the property could have been acquired. But such a presumption is a presumption of fact which can be rebutted. <span style=\"background-color: rgb(255, 255, 0);\">But where it is established or admitted that the family which possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family. </span>Both the courts below have scrutinised the evidence bearing in mind the aforesaid legal position and have rightly come to the conclusion that the property in question is the joint family property. We see no justification for our interference with the said concurrent findings of the two courts below. The appreciation of evidence has been rightly made bearing in mind the correct legal position.<span style=\"background-color: rgb(255, 255, 0);\"> The appellant thus has utterly failed to establish that the consideration money for the property was paid out of his personal funds. In the aforesaid circumstances agreeing with the two courts below we hold that the property was the joint family property</span> and therefore the respondents have one-third share each in the compensation amount. In the aforesaid premises this appeal is devoid of merits and the same is accordingly dismissed but in the circumstances without any order as to costs.</b></h4><div><br></div>', 'aff121811875e6dd09fcd76eb4c67a9f.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2024-05-10', 1, '', '', '2024-05-10 12:10:13', '2024-05-10 12:37:40'),
(1151, 'cWq7JjDBhp41gsAFtQRh0s8lo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'In a suit for bare injunction, the trial Court or First Appellate Court is NOT required to give a finding even indirectly touching on title by framing and answering issues relating thereto. Karnataka High Court. ', '<p><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Camil Mark Pais vs Valerian Pais and another. <br></span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Miscellaneous First Appeal 85 of 2020 decided on 2 September 2021<br>Judgment&nbsp;</span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413697/1/MSA85-20-02-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413697/1/MSA85-20-02-09-2021.pdf</a></b></p><p><b>11.1. Whether in a suit for bare injunction, would trial Court be required to give a finding even though indirectly&nbsp; in&nbsp; relation to declaration of title?</b></p><p><b>12.1. In neither of the suits, there is a relief for declaration or possession which has been sought for. It is trite law that the&nbsp; plaintiff&nbsp; in a suit for bare injunction restraining the defendants from interfering with the possession can only succeed, if the plaintiff establishes that the plaintiff is in possession and also interference by the&nbsp; defendants with such possession.</b></p><p><b>12.2. If neither of these two aspects are proved, no injunction can be granted. Since the plaintiff is not in possession, no injunction order could be passed. If the&nbsp; plaintiff though in possession were unable to prove interference by defendant, the question of injunction would not arise.</b></p><p><b>12.3. Incidental to the said relief, there could be several averments made in the plaint as regard how the plaintiff claims title or has come into possession of the property as regard which injunction is sought for. It is not in any manner required that the trial Court give a finding as regard ownership, more so, when no relief of declaration of ownership has been sought for, the suit being one for bare injunction, the trial&nbsp; Judge or the Appellate Court is restricted to give finding and enquire into&nbsp; only&nbsp; in relation to possession and interference.</b></p><p><b>12.4. The First Appellate Court on account of various arguments which have been advanced, probably under misconception of title being in issue without determination of which it cannot be said that there is valid possession of the plaintiff, the plaintiff would not be entitled for injunction and therefore, has directed issues to be framed.</b></p><p><b>12.5. This Court in several cases has held that even possession of the trespasser would be required to be protected by an order of injunction. This Court in Patil Exhibitors&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(P) Ltd. –v- Corporation of the City of Bangalore [ILR 1985(3) KAR 3700] has held that a trespasser is also entitled for possession which is also reiterated by this Court in the case of John B James Vs. Bangalore Development Authority [ILR 2000 Kar 4134] that whenever any&nbsp; person approaches the Court seeking for injunction restraining interference of the third person, it would not&nbsp; be required&nbsp; per se for the Court to conduct an enquiry as to whether the plaintiff is in authorized possession or lawful possession, it is the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">only factum of possession which would be relevant.</b></p><p><b>12.6. If certain other reliefs which are required to be claimed, those would have to be claimed in different proceedings depending on the finding of the trial Court. The trial Court or the First Appellate Court cannot seek to expand the scope of the suit by directing framing of additional issues.</b></p><p><b>12.7. In view of the above, I am of the&nbsp; considered opinion that additional issues directed to be framed as extracted above would amount to conversion of a suit for injunction into a suit for declaration of title. Any such finding on those issues would lead to an order which is in nature of declaration of title. When the parties themselves have not approached the Court seeking for such&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">a relief, it is not open for the Court to expand the scope of the suit.</b></p><p><b>12.8. I answer point No.1 by holding that a suit for bare injunction, the trial Court or First Appellate Court would not be required to give a finding even indirectly touching on title by framing and answering issues relating thereto.</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '73527bb0af98ac0b00ba2bd333fc73b6.jpeg', '48449653a7f41a8d06215f1e53f8b88f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-12', 1, '', '', '2021-11-13 03:30:24', '2021-11-13 03:30:24'),
(1152, 'KjBYUEOJbAcjpsDnvFcvVH6QR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Real Estate (Regulation and Development) Act, 2016 is retroactive in operation covering all \'\'ongoing projects\'\' that commence prior to the Act and in respect to which completion certificate has not been issued. Supreme Court.    ', '<p><b>M/s. Newtech Promoters and Development Pvt Ltd vs State of UP and others.&nbsp;<br>Civil Appeal 6745 &amp; 6749 of 2021 decided on 11 November 2021<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice UDAY&nbsp;UMESH&nbsp;LALIT, Justice AJAY&nbsp;RASTOGI and&nbsp;Justice ANIRUDDHA&nbsp;BOSE<br></span></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">31. After we have heard learned counsel for the parties at length, the following questions emerges for our consideration in the present batch of appeals are as under:­</b></p><p><b><i>Whether the Act 2016 is retrospective or retroactive in its operation and what will be its legal consequence if tested on the anvil of the Constitution of India?</i></b></p><p><b>32. The&nbsp; &nbsp;issue&nbsp; &nbsp;concerns&nbsp; &nbsp;the&nbsp; &nbsp;retroactive&nbsp; &nbsp;application&nbsp; &nbsp;of&nbsp; &nbsp;the provisions&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Act&nbsp; &nbsp;2016&nbsp; &nbsp;particularly,&nbsp; &nbsp;with&nbsp; reference to the ongoing projects.&nbsp;&nbsp;</b></p><p><b>34, 35 &amp; 36. The term “ongoing project” has not been so defined under the Act&nbsp; &nbsp;while&nbsp; &nbsp;the&nbsp; &nbsp;expression&nbsp; &nbsp;“real&nbsp; &nbsp;estate&nbsp; project”&nbsp; &nbsp;is&nbsp; &nbsp;defined&nbsp; &nbsp;under Section 2(zn) of the Act. The Act is intended to comply even to the ongoing real estate project. The&nbsp; &nbsp;expression&nbsp; &nbsp;“completion&nbsp; &nbsp;certification”&nbsp; &nbsp;has&nbsp; &nbsp;been&nbsp; &nbsp;defined under Section 2(q) and “occupancy certificate” under Section 2(zf) of the Act.&nbsp;</b></p><p><b>37. Looking to the scheme of Act 2016 and Section 3 in particular of which a detailed discussion has been made, all “ongoing projects” that commence prior to the Act and in respect to which completion certificate&nbsp; &nbsp;has&nbsp; &nbsp;not&nbsp; &nbsp;been&nbsp; &nbsp;issued&nbsp; &nbsp;are&nbsp; &nbsp;covered&nbsp; &nbsp;under&nbsp; &nbsp;the&nbsp; &nbsp;Act.&nbsp; It manifests that the legislative intent is to make the Act applicable not only to the projects which were yet to commence after the Act became operational but also to bring under its fold the ongoing projects and to protect from its inception the inter se rights of the stake holders, including allottees/home buyers, promoters and real estate agents while imposing certain duties and responsibilities on each&nbsp; &nbsp;of&nbsp; &nbsp;them&nbsp; &nbsp;and&nbsp; &nbsp;to&nbsp; regulate,&nbsp; &nbsp;administer&nbsp; &nbsp;and&nbsp; &nbsp;supervise&nbsp; &nbsp;the unregulated real estate sector within the fold of the real estate authority.&nbsp;</b></p><p><b>41. The&nbsp; &nbsp;clear&nbsp; &nbsp;and&nbsp; &nbsp;unambiguous&nbsp; &nbsp;language&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;statute&nbsp; &nbsp;is retroactive in operation and by applying purposive interpretation rule of statutory construction, only one result is possible, i.e., the legislature consciously enacted a retroactive statute to ensure sale of plot, apartment or building, real estate project is done in an efficient and transparent manner so that the interest of consumers in the real estate sector is protected by all means and Sections 13, 18(1) and 19(4) are all beneficial provisions for safeguarding the pecuniary&nbsp; &nbsp;interest&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;consumers/allottees.&nbsp; &nbsp; &nbsp;In&nbsp; &nbsp;the&nbsp; &nbsp;given circumstances, if the Act is held prospective then the adjudicatory mechanism under Section 31 would not be available to any of the allottee for an on­going project.&nbsp; Thus, it negates the contention of the promoters regarding the contractual terms having an overriding effect over the retrospective applicability of the Act, even on facts of this case.</b></p><p><b>42. What the provision further emphasizes is that a promoter of a project which is not complete/sans completion certificate shall get the project registered under the Act but while getting the project registered,&nbsp; &nbsp;promoter&nbsp; &nbsp;is&nbsp; &nbsp;under&nbsp; &nbsp;an&nbsp; &nbsp;obligation&nbsp; &nbsp;to&nbsp; &nbsp;prescribe&nbsp; &nbsp;fresh timelines for getting the remaining development work completed and from the scheme of the Act, we do not find that the first proviso to Section 3(1) in any manner is either violative of Articles 14 and 19(1)(g)&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Constitution&nbsp; &nbsp;of&nbsp; &nbsp;India.&nbsp; &nbsp;The&nbsp; &nbsp;Parliament&nbsp; &nbsp;is&nbsp; &nbsp;always competent to enact any law affecting the antecedent events under its fold within the parameters of law.</b></p><p><b>52. The Parliament intended to bring within the fold of the statute the ongoing real estate projects in its wide amplitude used the term “converting and existing building or a part thereof into apartments” including every kind of developmental activity either existing or upcoming in future under Section 3(1) of the Act, the intention of the legislature by necessary implication and without any ambiguity is to include those projects which were ongoing and in cases where completion certificate has not been issued within fold of the Act.</b></p><p><b>54.&nbsp; &nbsp;From the scheme of the Act 2016, its application is retroactive in character and it can safely be observed that the projects already completed or to which the completion certificate has been granted are not under its fold and therefore, vested or accrued rights, if any, in no manner are affected. At the same time, it will apply after getting the on­going projects and future projects registered under Section 3 to prospectively follow the mandate of the Act 2016.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '4df2372b2a249affe298afc9020a85e8.JPG', 'a40a2e0b18c252d8af5b1191a77f3ff7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-12', 1, '', '', '2021-11-13 04:38:50', '2021-11-13 04:38:50'),
(1153, '7EHSWCqM0CVCu1NABmMy4wrHO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Real Estate (Regulation and Development) Act, 2016. While refund can be claimed before the Regulatory Authority, adjudging compensation can be done only by the Adjudicating Officer. Supreme Court.  ', '<p><b><i>M/s. Newtech Promoters and Development Pvt Ltd vs State of UP and others.&nbsp;</i></b></p><p><b><i>Civil Appeal 6745 &amp; 6749 of 2021 decided on 11 November 2021</i></b></p><p></p><p><b><i>Justice UDAY UMESH LALIT, Justice AJAY RASTOGI and Justice ANIRUDDHA BOSE</i></b></p><p><b><i>Whether&nbsp; the&nbsp; authority&nbsp; has&nbsp; jurisdiction to direct&nbsp; return/refund of the amount to&nbsp; the allottee&nbsp; under Sections 12, 14, 18 and 19 of the Act or the jurisdiction exclusively lies with the adjudicating officer under Section 71 of the Act?</i></b><br></p><p><b>75. The legislature in its wisdom has made a specific provision delineating&nbsp; &nbsp;power&nbsp; &nbsp;to&nbsp; &nbsp;be&nbsp; &nbsp;exercised&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; regulatory authority/adjudicating&nbsp; &nbsp;officer.&nbsp; &nbsp;“Refund&nbsp; of&nbsp; the&nbsp; amount”&nbsp; and “compensation” are two distinct components which the allottee or the person aggrieved is entitled to claim if the promoter has not been able to hand over possession with a nature of enquiry and mechanism&nbsp; &nbsp;provided&nbsp; &nbsp;under&nbsp; &nbsp;the&nbsp; &nbsp;Act.&nbsp; &nbsp; &nbsp;So&nbsp; &nbsp;far&nbsp; &nbsp;as&nbsp; &nbsp;the&nbsp; &nbsp;claim&nbsp; &nbsp;with respect to refund of amount on demand under Sections 18(1) and 19(4) of the Act is concerned, it vests within the jurisdiction of the regulatory authority.&nbsp; Section 71 carves out the jurisdiction of the adjudicating officer to adjudge compensation under Sections 12, 14, 18 and 19 after holding enquiry under Section 71(3) of the Act keeping in view the broad contours referred to under Section 72 of the Act.</b><br></p><p><b>78. This Court while interpreting Section 18 of the Act, in Imperia Structures Ltd. Vs.&nbsp; Anil Patni and Another 2020 (10) SCC 783&nbsp; held that Section 18 confers an unqualified right upon an allottee to get refund of the amount deposited with the promoter and interest at the prescribed rate, if the promoter fails to complete or is unable to give possession of an apartment as per the date specified in the home buyer’s agreement.</b></p><p><b>79. To safeguard the interests of the parties, on being decided by the regulatory authority/adjudicating officer, it is always subject to appeal before the Tribunal under Section 43(5) provided condition of pre­deposit being complied with can be further challenged in appeal before the High Court under Section 58 of the Act and, thus, the legislature has put reasonable restriction and safeguards at all stages.&nbsp;</b></p><p><b>80. The&nbsp; further&nbsp; submission&nbsp; made&nbsp; by&nbsp; learned&nbsp; &nbsp;counsel&nbsp; &nbsp;for&nbsp; &nbsp;the appellants&nbsp; &nbsp;that&nbsp; &nbsp;if&nbsp; &nbsp;the&nbsp; &nbsp;allottee&nbsp; &nbsp;has&nbsp; &nbsp;defaulted&nbsp; &nbsp;the&nbsp; &nbsp;terms&nbsp; &nbsp;of&nbsp; &nbsp;the agreement and still refund is claimed which can be possible, to be determined by the adjudicating officer.&nbsp; The submission appears to be attractive but is not supported with legislative intent for the reason that if the allottee has made a default either in making instalments or made any breach of the agreement, the promoter has a right to cancel the allotment in terms of Section 11(5) of the Act and proviso to sub­-section 5 of Section 11 enables the allottee to approach the regulatory authority to question the termination or cancellation&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;agreement&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;promotor&nbsp; &nbsp;and&nbsp; &nbsp;thus,&nbsp; &nbsp;the interest of the promoter is equally safeguarded.</b></p><p><b>81. The opening words of Section 71(1) of the Act make it clear that the scope and functions of the adjudicating officer are only for “adjudging compensation” under Sections 12, 14, 18 and 19 of the Act.&nbsp; This has to be seen together with the opening&nbsp; &nbsp;words&nbsp; &nbsp;of&nbsp; &nbsp;Section&nbsp; &nbsp;72&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Act,&nbsp; &nbsp;which&nbsp; &nbsp;reads&nbsp; &nbsp;“while adjudging the quantum of compensation or interest, as the case may be, under Section 71, the adjudicating officer shall have due regards”&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;broad&nbsp; &nbsp;parameters&nbsp; &nbsp;to&nbsp; &nbsp;be&nbsp; &nbsp;kept&nbsp; &nbsp;in&nbsp; &nbsp;mind&nbsp; &nbsp;while adjudging compensation to be determined under Section 71 of the Act.</b></p><p><b>86. This has to be seen together with the opening&nbsp; &nbsp;words&nbsp; &nbsp;of&nbsp; &nbsp;Section&nbsp; &nbsp;72&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Act,&nbsp; &nbsp;which&nbsp; &nbsp;reads&nbsp; &nbsp;“while adjudging the quantum of compensation or interest, as the case may be, under Section 71, the adjudicating officer shall have due regards”&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;broad&nbsp; &nbsp;parameters&nbsp; &nbsp;to&nbsp; &nbsp;be&nbsp; &nbsp;kept&nbsp; &nbsp;in&nbsp; &nbsp;mind&nbsp; &nbsp;while adjudging compensation to be determined under Section 71 of the Act. At&nbsp; the&nbsp; same time, when&nbsp; it comes to&nbsp; a question&nbsp; of seeking the relief of adjudging compensation and interest thereon under&nbsp; &nbsp;Sections&nbsp; &nbsp;12,&nbsp; &nbsp;14,&nbsp; &nbsp;18&nbsp; &nbsp;and&nbsp; &nbsp;19,&nbsp; &nbsp;the&nbsp; &nbsp;adjudicating&nbsp; &nbsp;officer exclusively&nbsp; &nbsp;has&nbsp; &nbsp;the&nbsp; &nbsp;power&nbsp; &nbsp;to&nbsp; &nbsp;determine,&nbsp; &nbsp;keeping&nbsp; &nbsp;in&nbsp; &nbsp;view&nbsp; &nbsp;the collective reading of Section 71 read with Section 72 of the Act. If the&nbsp; &nbsp;adjudication&nbsp; under&nbsp; Sections&nbsp; 12,&nbsp; 14, 18&nbsp; and&nbsp; 19&nbsp; other&nbsp; than compensation as envisaged, if extended to the adjudicating office as prayed that, in our view, may intend to expand the ambit and scope of the powers and functions of the adjudicating officer under Section 71 and that would be against the mandate of the Act 2016.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'f8a36776bebc13f5b913a9df9cc06a5b.JPG', '9eb943ed6d7c176a109967e663fb4750.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-12', 1, '', '', '2021-11-13 05:23:55', '2021-11-13 05:23:55'),
(1154, '0MkhpmoWt2zhD0jqvEobFWIpI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act, 1996. Illegality of a trivial nature could not be held to violate the public policy to invalidate arbitration award under Section 34. Supreme Court. ', '<p><b>Welspun Speciality Solutions Limited vs Oil and Natural Gas Corporation Ltd.<br>Civil Appeal 2826-2827 of 2016 decided on 13 November 2021<br>Chief Justice N.V.Ramana and Justice Surya Kant<br>J</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">udgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2010/33969/33969_2010_31_1501_31091_Judgement_13-Nov-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2010/33969/33969_2010_31_1501_31091_Judgement_13-Nov-2021.pdf</a></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>23......The limited grounds provided under Section 34 of the Act, has been\r\ninterpreted by this Court on numerous occasions. In this case at\r\nhand, the challenge of award is based on the fact that the same is\r\nagainst the public policy and patent illegality. Public policy as a\r\nground of challenge has always been met with certain scepticism.\r\nThe phrase ‘public policy’ does not indicate ‘a catch-all provision’ to\r\nchallenge awards before an appellate forum on infinite grounds.\r\nHowever, the ambit of the same is so diversly interpreted that in\r\nsome cases, the purpose of limiting the Section 34 jurisdiction is\r\nlost. This Court’s jurisprudence also shows that Section 34(2)(b) has&nbsp;undergone a lot of churning and continue to evolve. The purpose of\r\nSection 34 is to strike a balance between Court’s appellate powers\r\nand integrity of the arbitral process.</b></span></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">24.&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The first case, which expounded on the scope of ‘public policy’ was\r\nRenusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1)\r\nSCC 644, which inter alia provided that a foreign award may not be\r\nenforced under the said Act, if the court dealing with the case is\r\nsatisfied that the enforcement of the award will be contrary to the\r\npublic policy. After elaborate discussion, the Court arrived at the\r\nconclusion that public policy comprehended in Section 7(1)(b)(ii) of\r\nthe Foreign Awards (Recognition and Enforcement) Act, 1961 is the\r\n“public policy of India” and does not cover the public policy of any\r\nother country....</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705, the scope of\r\nSection 34 was expanded to include patent illegality as a ground for\r\nchallenging the award...</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Eventually, a three-Judge Bench in ONGC Ltd. v. Western Geco\r\nInternational Limited, (2014) 9 SCC 263, while\r\nupholding Saw Pipes case (supra), noted that ‘illegality’ of the\r\naward must go to root of the matter. Illegality of a trivial nature\r\ncould not be held to violate the public policy.</span></b></p><p><b>26. The main challenge to the award is against the imposition of\r\nunliquidated damages, when the matter of fact stood that the\r\ncontract between parties stipulated for pre-estimated damages\r\n(liquidated damages). The concerned contract contained\r\nprovisions for liquidated damages for breach of contract,\r\nparticularly breach of deadlines set in the contract. Under Indian\r\nContract law, such liquidated damages are recognized, subject to\r\nthe same being reasonable.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p><b>28. In this context, the award concludes that as time was not the\r\nessence, liquidated damages could not be granted<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p><b>30. It is now settled that ‘whether time is of the essence in a contract’,\r\nhas to be culled out from the reading of the entire contract as well\r\nas the surrounding circumstances. Merely having an explicit\r\nclause may not be sufficient to make time the essence of the\r\ncontract. As the contract was spread over a long tenure, the&nbsp;intention of the parties to provide for extensions surely reinforces\r\nthe fact that timely performance was necessary. The fact that such\r\nextensions were granted indicates ONGC’s effort to uphold the\r\nintegrity of the contract instead of repudiating the same.&nbsp;</b></p><p><b>31....The Arbitral Tribunal construed the aforesaid provision to\r\ninterpret the term ‘loss’ to mean actual tangible loss provable by\r\nevidence, instead of pre-estimated loss. Such interpretation, in the facts and circumstances, could be held to be a reasonable\r\ninterpretation, as the other party was not able to impugn the same\r\nby pointing to any documents or correspondence to the contrary.\r\nWhen a standard form of a contract is utilised, ONGC is assumed\r\nin law to have the larger bargaining power to enter into a contract,\r\nunless clear intention is shown to the contrary. In this case at\r\nhand, a reasonable interpretation against ONGC may be utilised.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b><br></p>', 'eeb3a05fc636d7aca8cd1dc11bcb21e0.JPG', 'eab2756092ecf567b0a4410a5735c392.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-14', 1, '', '', '2021-11-14 19:19:58', '2021-11-14 19:19:58'),
(1155, 'sK7dtRsRZpJOSQamfuIaH2kto', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Merely having an explicit clause may not be sufficient to make time the essence of the contract. It has to be culled out from the reading of the entire contract as well as the surrounding circumstances. Supreme Court ', '<h5 style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>Welspun Speciality Solutions Limited vs Oil and Natural Gas Corporation Ltd.<br></b></font><font color=\"#222222\" face=\"mainFontOP\"><b>Civil Appeal 2826-2827 of 2016 decided on 13 November 2021<br></b></font><font color=\"#222222\" face=\"mainFontOP\"><b>Chief Justice N.V.Ramana and Justice Surya Kant<br></b></font></h5><h5 style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font><font color=\"#222222\" face=\"mainFontOP\"><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2010/33969/33969_2010_31_1501_31091_Judgement_13-Nov-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2010/33969/33969_2010_31_1501_31091_Judgement_13-Nov-2021.pdf</a><br></b></font></h5><h5 style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font><font color=\"#222222\" face=\"mainFontOP\"><b>23......The limited grounds provided under Section 34 of the Act, has been interpreted by this Court on numerous occasions. In this case at hand, the challenge of award is based on the fact that the same is against the public policy and patent illegality. Public policy as a ground of challenge has always been met with certain scepticism. The phrase ‘public policy’ does not indicate ‘a catch-all provision’ to challenge awards before an appellate forum on infinite grounds. However, the ambit of the same is so diversly interpreted that in some cases, the purpose of limiting the Section 34 jurisdiction is lost. This Court’s jurisprudence also shows that Section 34(2)(b) has undergone a lot of churning and continue to evolve. The purpose of Section 34 is to strike a balance between Court’s appellate powers and integrity of the arbitral process.</b></font></h5><h5 style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font><font color=\"#222222\" face=\"mainFontOP\"><b>24. The first case, which expounded on the scope of ‘public policy’ was Renusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1) SCC 644, which inter alia provided that a foreign award may not be enforced under the said Act, if the court dealing with the case is satisfied that the enforcement of the award will be contrary to the public policy. After elaborate discussion, the Court arrived at the conclusion that public policy comprehended in Section 7(1)(b)(ii) of the Foreign Awards (Recognition and Enforcement) Act, 1961 is the “public policy of India” and does not cover the public policy of any other country....In ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705, the scope of Section 34 was expanded to include patent illegality as a ground for challenging the award...Eventually, a three-Judge Bench in ONGC Ltd. v. Western Geco International Limited, (2014) 9 SCC 263, while upholding Saw Pipes case (supra), noted that ‘illegality’ of the award must go to root of the matter. Illegality of a trivial nature could not be held to violate the public policy.<br></b></font></h5><h5 style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font><font color=\"#222222\" face=\"mainFontOP\"><b>26. The main challenge to the award is against the imposition of unliquidated damages, when the matter of fact stood that the contract between parties stipulated for pre-estimated damages (liquidated damages). The concerned contract contained provisions for liquidated damages for breach of contract, particularly breach of deadlines set in the contract. Under Indian Contract law, such liquidated damages are recognized, subject to the same being reasonable.<br></b></font></h5><h5 style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font><font color=\"#222222\" face=\"mainFontOP\"><b>28. In this context, the award concludes that as time was not the essence, liquidated damages could not be granted<br></b></font></h5><h5 style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font><font color=\"#222222\" face=\"mainFontOP\"><b>30. It is now settled that ‘whether time is of the essence in a contract’, has to be culled out from the reading of the entire contract as well as the surrounding circumstances. Merely having an explicit clause may not be sufficient to make time the essence of the contract. As the contract was spread over a long tenure, the intention of the parties to provide for extensions surely reinforces the fact that timely performance was necessary. The fact that such extensions were granted indicates ONGC’s effort to uphold the integrity of the contract instead of repudiating the same.&nbsp;<br></b></font></h5><h5 style=\"text-align: left; margin-right: 0px; margin-bottom: 10px; margin-left: 0px; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font><font color=\"#222222\" face=\"mainFontOP\"><b>31....The Arbitral Tribunal construed the aforesaid provision to interpret the term ‘loss’ to mean actual tangible loss provable by evidence, instead of pre-estimated loss. Such interpretation, in the facts and circumstances, could be held to be a reasonable interpretation, as the other party was not able to impugn the same by pointing to any documents or correspondence to the contrary. When a standard form of a contract is utilised, ONGC is assumed in law to have the larger bargaining power to enter into a contract, unless clear intention is shown to the contrary. In this case at hand, a reasonable interpretation against ONGC may be utilised.&nbsp;</b></font></h5>', '47786078caa93683a482b37f9fbd163f.JPG', 'c0cb2f833e7c0fa9b8b47ef1ee835d25.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-14', 1, '', '', '2021-11-14 23:48:23', '2021-11-14 23:48:23');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1156, 'EoyQUXmI6A0KqZP9snKLt3Ktr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Penal Code. Section 498A. In the tussle between husband and wife, other family members of the husband shall not be unnecessarily embroiled in criminal prosecution. Karnataka High Court. ', '<p><b>Prabhavati Gujar and anotehr vs State of Karnataka and another&nbsp;</b></p><p><b>Criminla Petition 9364 of 2018 decided on 10 November 2021</b></p><p><b>Judgment Link:<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/420107/1/CRLP9364-18-10-11-2021.pdf\" target=\"_blank\"> http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/420107/1/CRLP9364-18-10-11-2021.pdf&nbsp;</a></b></p><p><b>13...If a cursory perusal at the complaint is made, it becomes unmistakably clear that the entire narration of the complaint is with regard to grievances of the complainant against her husband. The only allegation against the petitioners in the complaint is that the husband, in unison with his mother only&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">wanted to harass the complainant and the kids by asking the complainant to move out of the house and relocate herself to a separate house at Thane, Maharashtra. Except this statement in the entire complaint, all the grievances and narration of such grievances relate to her husband</b></p><p><b>14. The grievance of the complainant begins when she was living with her husband in USA and narrates up to the incidents at Bangalore. Nowhere it is indicated that the petitioners who&nbsp; are the mother-in-law and the sister-in-law have indulged in any act that would attract the offences under Section 498A of the&nbsp; IPC. The husband/accused No.1 is not before this Court.&nbsp; Accused No.1 is the one who has to defend the action for the allegations in the complaint. Even if the complaint is taken to be true, there is nothing indicative of the fact that the petitioners have indulged in any of the ingredients that are necessary&nbsp; to drive home the offence punishable under Section 498A IPC.</b></p><p><b>15.The FIR registered pursuant to the said complaint also narrates all the events against the husband of the&nbsp; complainant.&nbsp; It is only as a passing reference brings out the names of the petitioners and the allegation is that they had indicated that the complainant has to go out of the house and live separately along with her husband. Except this statement, both in the complaint and in the FIR, there is no act that is alleged to have been committed by the petitioners. It is also not in dispute that the petitioners are not residing with the couple. The couple either visited the place of the petitioners at Thane or the petitioners on one or two occasions visited the place where the couple used to stay at Bangalore.</b></p><p><b>18. It is not in dispute that both the petitioners are not staying with the complainant or with the couple. The tussle is between the couple viz., the complainant and her husband. The circumstance that would emerge in the case at hand is whether, other family members of the husband could be accused of offences punishable under Section 498A of IPC. This has been considered by the Apex Court&nbsp; in&nbsp; the&nbsp; cases&nbsp; of&nbsp; PREETI&nbsp; GUPTA&nbsp; AND ANOTHER v. STATE OF JHARKHAND AND ANOTHER – (2010) 7 SCC 667; GEETA MEHROTRA AND ANOTHER v. STATE OF U.P. &amp; ANOTHER – (2012) 10 SCC 741; and RASHMI CHOPRA AND OTHERS v. STATE OF UTTAR PRADESH AND&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">OTHERS –&nbsp; (2019) 15 SCC 357.&nbsp;</b></p><p><b>The Apex Court in the aforesaid cases, which were all cases concerning arraigning of all family members of the husband without there being any cause shown or allegations made in the complaint or the FIR, has interfered and quashed the&nbsp; proceedings and has also directed that in such cases Courts should interfere and not permit the trial to degenerate into harassment to other members of the family.</b></p><p><b>19.<span style=\"white-space:pre\">	</span>The submission of the learned Senior&nbsp; Counsel&nbsp; for&nbsp; the&nbsp; 2nd respondent that the Court&nbsp; should&nbsp; not&nbsp; interfere&nbsp; at&nbsp; this&nbsp; stage&nbsp; of the proceedings as that would not be&nbsp; within the&nbsp; parameters of the powers of the Court under Section 482 of the Cr.P.C. is also unacceptable in the light of&nbsp; the&nbsp; law&nbsp; laid&nbsp; down by the&nbsp; Apex Court in the case of MANOJ MAHAVIR PRASAD KHAITAN v. RAM GOPAL PODDAR</b></p><p><b>The Apex Court, in the aforesaid case, has held that if the allegations themselves are so absurd that no reasonable man would accept the same, the High Court could not&nbsp; have thrown&nbsp; its arms in the air and expressed its inability&nbsp; to do anything in the matter. Section 482 Cr.P.C. is a&nbsp; guarantee&nbsp; against&nbsp; injustice is what the Apex Court lays emphasis on.</b></p><p><b>20.In the light of the complaint, the FIR and the law laid down by the Apex Court in the aforesaid cases all concerning offences under Section 498A of IPC inter alia, the proceedings against the petitioners if permitted to continue would, without doubt, degenerate into harassment against the petitioners and would result in miscarriage of justice. Therefore, the proceedings impugned warrant appropriate interference.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Criminal Petition is allowed</b><br></p><div><br></div>', '21eee6db9dc116a7657cab0c6230ec80.jpg', '0b5ac62594fe8ab0848beb11bc566f6b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-15', 1, '', '', '2021-11-16 01:25:52', '2021-11-16 01:25:52'),
(1157, '4OcLatUMDTkxiK4iMguEuKuSo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. If allegations of serious crimes against accused are traceable to civil disputes between parties and criminal proceeding is initiated only to settle due between parties, the same is liable to be quashed. Karnataka High Court.  ', '<p><b>Santosh Chinnappa Reddy and another vs State of Karnataka and another </b></p><p><b>Criminal Petition 5194 of 2018 decided on 10 November 2021</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/420114/1/CRLP5194-18-10-11-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/420114/1/CRLP5194-18-10-11-2021.pdf</a></b></p><p><b>14.....The complainant in the first paragraph adverts to the relationship between him and the petitioners and later alleges that the Firm which became prosperous joined hands to cheat him and started separate advertisement business by  diverting the customers of Desigh-55 to their new business venture. It is his case that he became a scapegoat in the process and  his  profits and income were reduced. His father became very much worried because of initial investment of Rs.40,00,000/- was borrowed from his father and the accused never apologized to   his father and never stated that they will pay his dues so that he could resign and go out of the company with all his profits and investment in the business. The ultimate allegation is that the accused without caring to the legal notice or e-mails to settle  dues have declined to pay his share of investment and accordingly, have committed the offence of cheating or criminal breach of trust.  </b></p><p><b>15. Both these complaints related to cheating, threatening and assault and a request was made by the complainant to take necessary action and do the needful. What emerges from the complaint and the post-script is that the complainant has made repeated attempts to register a complaint. A perusal at the complaint would clearly indicate that it is a dispute between the petitioners and the complainant with regard to certain transaction. Even if it is construed that the complainant had invested in the company of the petitioners, it cannot be on account of any inducement on the part of the petitioners on the complainant for investment into the company with an intention to cheat. If inducement is not present in the complaint none of the ingredients under Section 415 of IPC can be alleged against the petitioners as it is those ingredients under Section  415  of  IPC which make  an accused punishable  under Section 420 of  the IPC for cheating. Therefore, there is no ground made out in the complaint or in the FIR on their perusal with regard to cheating under Section 420 IPC.</b></p><p><b>17. It is not that the relationship of the petitioners turned sore immediately. The petitioners and the complainant have  been in the business for close to 5 years. If it was a case of inducement or cheating, the business could not have gone on between the petitioners and the complainant for such a long  time. There are plethora of correspondences between the complainant and the petitioners and vice-versa with regard to payment of certain amount and its dispute. Nowhere in the complaint the  complainant has alleged that he was lured into  the business or cheated by way of inducement by the petitioners for investment, if any, in the firm of the petitioners. Therefore, it is a clear case where the dispute with regard to money transaction between the complainant and the petitioners is given a colour of crime. Nowhere the complaint drives home the allegations for offences punishable under Sections 324, 341, 384 or 420 of the IPC.</b></p><p><b>18. Criminal law cannot be used to settle the alleged dues between the parties, as setting a criminal law in motion is a serious matter and it cannot be used by the complainant  to  settle his personal scores. Therefore, in the light of the facts obtaining, as narrated hereinabove, in the case at hand, and in the light of the  complaint not linking any event that forms part  of FIR, the proceedings are rendered unsustainable, as it is  purely a matter of contract between the parties, where offences  as alleged cannot even be linked to the transaction between the parties to attract criminal law.</b></p><p><b>20. Yet another circumstance is that, against the claim of the complainant that the complainant is a partner in the Firm of the petitioners, the petitioners Firm had instituted a civil suit in The order of the civil Court is extracted only to show that the transaction between the parties is purely civil in nature and  not to consider merits of the proceedings in O.S.No.6668 of 2018. Therefore, it is for the petitioners and the complainant to avail of such civil remedies available in law against each other for the alleged transaction and cannot be seen to set the criminal law in motion.</b></p><p><b>O.S.No.6668 of 2018 against the complainant seeking relief of perpetual injunction against the complainant in claiming that he is a partner of the petitioners Firm. </b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Criminal Petition is allowed.</b><br></p><div><br></div>', '68e93a0787cbafb80b260d87ef2871ca.jpg', '7f2a899353d0820572bf5b2b6fcdfe2e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-15', 1, '', '', '2021-11-16 01:52:57', '2021-11-16 01:53:54'),
(1158, '12L0dIO2kwZRJBrVog3aVMpa7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Rape of a minor girl is a heinous crime against the Society. Criminal proceedings can NOT be quashed even if the alleged rapist married the victim and a joint petition is filed for quashing. Karnataka High Court.  ', '<p><b>Anil and anotehr vs The State of Karnataka and anoteher </b></p><p><b>Criminal Petition 201199 of 2021 decided on 28 October 2021</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/419469/1/CRLP201199-21-28-10-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/419469/1/CRLP201199-21-28-10-2021.pdf</a></b></p><p><b>2.This petition is filed under Section 482 of Cr.P.C., seeking to quash the criminal proceedings in Special Case POCSO No.43/2019 pending on the file of II- Additional Sessions Judge/Special Judge, Vijayapur, for the offences punishable under Sections 366 and 376 of IPC and Sections 12, 5(L), 5(J)(II) and 6 of the Protection of Children from Sexual Offences Act, 2012 (for short</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">`POCSO\' Act).</b></p><p><b>4. The learned counsel appearing for the petitioners submits that petitioner No.1/accused and petitioner No.2/victim have married and they have child </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">He has also produced document viz., birth certificate of child born out of their cohabitation. Petitioner No.1 is in custody. The victim who has been examined before the Court has not supported the case of the prosecution and she has turned hostile. No purpose would be served in continuing the proceedings against the accused when the victim herself has turned hostile. Hence, he prays for quashing the proceedings initiated against the accused.</b></p><p><b>7. I have heard the learned counsel appearing for the petitioners and the learned High Court Government Pleader appearing for the first respondent-State and perused the material on record. Petitioner No.2 herein was minor at the time of incident. No doubt, the petition is filed by the accused and victim seeking to quash the proceedings and the defacto complainant is arrayed as respondent No.2. This Court while passing an order in the order referred to supra has taken note of the principles laid </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">down in the case of Gian Singh vs. State of Punjab and another reported in (2012) 10 SCC 303 and came to conclusion that since the victim and the accused have married and they are having good family and the parties have compromised the matter, proceedings has to be quashed. But this consideration is against the principles laid  down  in  the  judgment  in  Gian  Singh´s  case  supra and the same cannot be a basis for exercising the discretion to invoke Section 482 of Cr.P.C. The Hon\'ble Apex Court in Gian Singh´s case has held that in serious offences like murder, rape, dacoity etc., or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the proceedings cannot be quashed, even though the victim or victim\'s family and the offender have settled the dispute, since it will have serious impact on the society. This Court in Vijaya Kumar´s case though referred to the judgment of the  Hon\'ble  Apex  Court  in  Gian  Singh´s  case,  but  lost </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sight of the principles laid down in the said judgment. Hence, this Court based on the order passed in Vijaya Kumar´s case supra, cannot exercise power under Section 482 of Cr.P.C.</b></p><p><b>8. No doubt, the learned counsel for the petitioners submitted that the victim girl and the accused have filed this petition seeking relief of quashing the proceedings. When the accused has committed offence under Section 376 of IPC against a minor girl who is below the age of 18 years, even if the victim has given consent, the same is not considered as consent at all. Though the learned counsel for the petitioners submitted that the victim who was examined before the trial Court has deposed before the Court that she was aged 19 years at the time of incident, whether she was minor or major has to be adjudicated before the trial Court and this Court cannot appreciate the said fact. The matter requires to be tried before the trial Court. In a case of heinous offence of rape, even if the parties have settled the dispute, the </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">same cannot be accepted and the proceedings cannot be quashed since it will have serious impact on the society. The Hon\'ble Apex Court in Gian Singh´s case supra has held that the power of the High Court in quashing a criminal proceeding or FIR or a complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal Court for compounding the offences under Section 320 of Cr.P.C., The power under Section 320 of Cr.P.C., may be exercised only where the parties have settled their dispute and the same also depends upon the facts of each case. It is also held that before exercising power under Section 482 of Cr.P.C., the High Court must have due regard to the nature and gravity of the crime and social impact. In the present case, the accused has committed offence of rape against a minor girl which attracts the provisions of IPC and also POCSO Act. The Hon\'ble Apex Court has specifically held that in case of serious offence of rape, the Court cannot exercise power under Section 482 of Cr.P.C., and the same will have impact on the society. The Court has to look into the statute and object in bringing the special enactment of POCSO Act and hence, considering the object and scope of special enactment of POCSO Act, exercising power under Section 482 of Cr.P.C., does not arise.</b></p><p><b>The petition is dismissed.</b></p>', 'f6ba1c334ae0b6482ec3bf21081097f2.jpg', 'a1c2f6f41fc1f8100cf58e3b6b4142c2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-15', 1, '', '', '2021-11-16 02:15:29', '2021-11-16 02:16:27'),
(1159, 'a5cBgG1LNUFGR02LKDK6JjBKM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Statutory authority is required to act within reasonable time. Karnataka High Court quashes bill issued by the Water Board after sleeping over collection for 25 years. ', '<p><b>M/s. PM Swimming Centre vs Bruhat Bangalore Mahanagara Palike and others.&nbsp;<br>Writ Petition 12524 of 2021 decided on 10 Noevmber 2021<br>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/420117/1/WP12524-21-10-11-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/420117/1/WP12524-21-10-11-2021.pdf</a></b></p><p><b>16. Admittedly, the officers of the Board have now woken up from deep slumber of 25 years or 18 years as the case would be, cannot be seen to contend that they are right in demanding the amount at&nbsp; this&nbsp; juncture,&nbsp; that too from the hands of the petitioner. It is germane to notice certain statutory provisions which&nbsp; empower the Board to disconnect either water connection or sewerage connection when a consumer defaults in&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">payment.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 75-A deals with the power of the Board to cut off sewerage connection. Section 75-A(c) mandates that if any charge or any other sum due&nbsp; for&nbsp; water supply or sewerage connection or the cost of carrying&nbsp; out work is not paid within fifteen days after issue of&nbsp; bills for such charges, the sewerage connection would&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be cut off. Merely sending bills month on&nbsp; month claiming arrears which according to the Board remained unpaid will not enure to the benefit of the Board to contend after 25 years that arrears have to be paid that too by the petitioner. The action, according to the Act, ought to have been taken by the Board at the right time by stopping water or sewerage connection to the&nbsp; place&nbsp; in which the petitioner is running swimming pool.</b></p><p><b>17.<span style=\"white-space:pre\">	</span>It is also not disputed that the BMP has cleared the bills that were raised as on 2003 and such clearance has been accepted by the Board. But, the dispute with regard to payment of arrears still looms large between the BMP and the Board. The petitioner cannot be brought into the picture for payment of such huge arrears that too for not using water of the Board&nbsp; for 25 years. Delay in such cases defeats the rights of statutory authorities is the view taken by the&nbsp; Apex&nbsp; Court in the case of DELHI DEVELOPMENT&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">AUTHORITY v. RAM PRAKASH (2011) 4 SCC 180</b></p><p><b>The Apex Court in the afore-extracted judgment clearly holds that even when no period of limitation is&nbsp; indicated, the statutory authority is required to act within a reasonable time. Waking up after 25 years without taking any follow up action, the authorities cannot set up a claim of payment of charges for the entire period. The Apex Court holds that it would be inequitable to allow the authorities who have slept over the matter to take advantage of their own wrong in claiming misuse charges thereon.</b></p><p><b>18.<span style=\"white-space:pre\">	</span>The facts of the case before the Apex Court would, in my considered view, cover the facts of the case on hand on all its fours. The Board again without performing its action under the Act taking such measures of recovery of arrears from the BBMP or the petitioner cannot now wake up after 25 years and contend that meager amount that stood as arrears prior to the petitioner becoming successful bidder has grown to mountainous proportion today and demand such amount.</b></p><p><b>24.<span style=\"white-space:pre\">	</span>The case at hand is a case where the officers of the Board ought to be held responsible for their lackadaisical attitude in not taking prompt and swift action in terms of the statute and having let the amount of arrears grow to mountainous proportions. Since the laxity on the part spans to around 25 years and few of the officers who have handled this Section in the Board would have retired, this Court holds its hands to direct any disciplinary proceeding to be initiated against those officers at this point in time for recovery of the amount, but the case at hand should act as an eye opener for the</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Board to set its house in order and not repeat such glaring mistakes in future.</b></p><p><b>The Writ Petition is allowed.</b></p>', '8f2301b86bc5517c318490a03f9a43b5.jpg', 'b27c7c444f979aba471cf6f142208874.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-15', 1, '', '', '2021-11-16 02:45:57', '2021-11-16 02:45:57'),
(1160, '3JXjbqSQxFZBX2gMXBosrs3To', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Where the Statute is otherwise silent, the resignation would take immediate effect without waiting for its acceptance and much less the communication of acceptance. Karnataka High Court', '<p><b>Gopala Krishna and others vs The State of Karnataka and others.&nbsp;</b></p><p><b>Writ Petition 8730 of 2021 decided on 15 November 2021</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/420437/1/WP8739-21-15-11-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/420437/1/WP8739-21-15-11-2021.pdf</a></b></p><p><b>Petitioners who happen to be some of the members of Committee of Management of the temple concerned, are knocking at the doors of Writ Court for assailing the Meeting Proceedings dated 26.4.2021, a copy whereof is at Annexure-G whereby, the respondent No.6 Chandrashekara Shetty has been elected as the Chairman of the Committee; petitioners have also sought for a Writ of Quo Warranto against respondent Nos.5 &amp; 6 on the ground that they having already resigned, have ceased to be the Members of Committee.</b></p><p><b>(c) The undisputed resignation letters by no stretch of imagination can be construed as being conditional or as being intended to take effect from a future date; the texts of these said letters do not give any scope for an otherwise construction; the cause for resignation is one thing and the condition subject to which such resignation should take effect, is another; these resignation letters are conspicuously silent about the latter; they give cause/reason for the resignation, is true; the fifth respondent Mr.Ganesh Kini was not happy inasmuch as the Committee meetings were not convened and that this was because of alleged ego of some members; the sixth respondent Sri.Chandrashekara Shetty has also stated substantially the same as being the cause of their&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">resignations; the vehement contention of learned Sr. Advocate Mr.Shashi Kiran Shetty appearing for these respondents to the contrary, therefore, cannot be countenanced.</b></p><p><b>(d) The Executive Officer of the Temple in his aforesaid letters dated 9.4.2021 &amp;&nbsp; 20.4.2021&nbsp; has&nbsp; specifically stated to the Commissioner that these two persons have resigned from their membership and&nbsp; therefore, further action was warranted in relation to reconstitution of the Committee; this impression can be gathered from the text &amp; context of these two letters of the Executive Officer of the Temple; that being the position, strangely the Executive Officer has issued notice of the Committee meeting dated 20.4.2021 addressed to another member Dr.Atul Kumar Shetty fixing 26.4.2021 as the date for electing the Chairman of the Committee,&nbsp; without&nbsp; waiting for the response of the Commissioner through his own letter dated 20.4.2021 wherein, he had specifically solicited the response; similar notices are&nbsp; said&nbsp; to&nbsp; have&nbsp; been sent inter alia to the members who had resigned, too; all this infects an infirmity in the proceedings of&nbsp; the&nbsp; meeting held on 26.4.2021.</b></p><p><b>(e) Learned counsel for the petitioners is&nbsp; more&nbsp; than justified in submitting that the law relating to resignation depends upon the text and subject&nbsp; matter&nbsp; of&nbsp; the Statute in question; where the Statute is&nbsp; otherwise silent, the resignation would take immediate effect without waiting for its acceptance and much less&nbsp; the&nbsp; communication of acceptance;&nbsp; this&nbsp; view&nbsp; gains&nbsp; support from the decision of the Apex Court in MOTI RAM VS. PARAM DEV, (1993) 2 SCC 725</b></p><p><b>(i) The contention of the private respondents that subsequently, they have withdrawn the resignation and that a resignation can be withdrawn at anytime before it is accepted, is bit difficult to sustain in law; as already&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">mentioned above, the resignation of the kind not involving bilateral act in the light of Moti Ram Case supra, has taken effect immediately on its communication to the Commissioner; therefore, there was no resignation that could have been withdrawn; withdrawal of “unilateral resignation” does not take effect unless the competent authority agrees to the request&nbsp; for&nbsp; withdrawal;&nbsp; arguably&nbsp; the acceptance of such a request&nbsp; needs&nbsp; to&nbsp; be&nbsp; communicated to the concerned; the contention that even after acceptance of resignation, in exceptional circumstances, courts have permitted withdrawal, is true; however, such an exception is recognized in Service Jurisprudence; its underlying principle is&nbsp; that&nbsp; job&nbsp; being&nbsp; the source of livelihood at times needs to be restored to the employee who has resigned in haste and offers a plausible explanation for withdrawal of the resignation soon after&nbsp; it&nbsp; &nbsp;is made , so&nbsp; that the means of livelihood of his family is&nbsp; &nbsp; not put to stake; that is not the case here.</b></p><p><b>In the above circumstances, this Writ Petition succeeds; a Writ of Declaratio issues to the effect that the respondent Nos.5 &amp; 6 have ceased to be the members of the Managing Committee of the fourth respondent Temple and that the election of sixth respondent as its Chairman, is null &amp; void; a Writ of Certiorari issues quashing the impugned proceedings at Annexure-A to that extent.</b></p>', 'a379cb96702229be93614f89e2cbc27b.jpg', '9b6c63c2449157a24bbd8cec64e55703.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-16', 1, '', '', '2021-11-17 02:24:26', '2021-11-17 02:24:26'),
(1161, 'ST4fdoxJdkJ4RQTS830ZSGR5k', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A right not exercised for a long time is non-existent. Supreme Court explains distinction between \'doctrine acquiescence’ and ‘delay and laches’.', '<p><b>The Chairman State Bank of India and another vs MJ James&nbsp;<br>Civil Appeal 8223 of 2009 decided on 16 November 2021<br>Justice L. Nageswara Rao and Justice Sanjiv Khanna&nbsp;<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2009/7703/7703_2009_13_1501_31329_Judgement_16-Nov-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2009/7703/7703_2009_13_1501_31329_Judgement_16-Nov-2021.pdf</a></span></b></p><p><b>29. Before proceeding further, it is important to clarify distinction\r\nbetween ‘acquiescence’ and ‘delay and laches’. Doctrine of\r\nacquiescence is an equitable doctrine which applies when a party\r\nhaving a right stands by and sees another dealing in a manner\r\ninconsistent with that right, while the act is in progress and after\r\nviolation is completed, which conduct reflects his assent or accord.\r\nHe cannot afterwards complain.17 In literal sense, the term\r\nacquiescence means silent assent, tacit consent, concurrence, or\r\nacceptance,\r\n18 which denotes conduct that is evidence of an intention\r\nof a party to abandon an equitable right and also to denote conduct\r\nfrom which another party will be justified in inferring such an\r\nintention.19 Acquiescence can be either direct with full knowledge\r\nand express approbation, or indirect where a person having the right\r\nto set aside the action stands by and sees another dealing in a\r\nmanner inconsistent with that right and inspite of the infringement\r\ntakes no action mirroring acceptance.\r\n20 However, acquiescence will\r\nnot apply if lapse of time is of no importance or consequence.</b></p><p><b>30. Laches unlike limitation is flexible. However, both limitation and\r\nlaches destroy the remedy but not the right. Laches like\r\nacquiescence is based upon equitable considerations, but laches\r\nunlike acquiescence imports even simple passivity. On the other\r\nhand, acquiescence implies active assent and is based upon the rule\r\nof estoppel in pais. As a form of estoppel, it bars a party afterwards\r\nfrom complaining of the violation of the right. Even indirect\r\nacquiescence implies almost active consent, which is not to be\r\ninferred by mere silence or inaction which is involved in laches.\r\nAcquiescence in this manner is quite distinct from delay.\r\nAcquiescence virtually destroys the right of the person.21 Given the\r\naforesaid legal position, inactive acquiescence on the part of the\r\nrespondent can be inferred till the filing of the appeal, and not for the\r\nperiod post filing of the appeal. Nevertheless, this acquiescence\r\nbeing in the nature of estoppel bars the respondent from claiming\r\nviolation of the right of fair representation.<br></b></p><p><b><br></b></p><p><b><br></b></p><p><b>&nbsp;</b><br></p>', '07653ee6d639273a2c639e757f72df53.JPG', '20fa521566d2af8b481f68aad9e4910b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-16', 1, '', '', '2021-11-17 02:48:15', '2021-11-17 02:48:15'),
(1162, 'HihLMXS8i9IP95bgFnGc4xm25', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Though right to be represented by a counsel or agent in domestic enquiry is not an absolute right, if the charge is of severe and complex nature, the request to be represented though a counsel or agent should be considered. Supreme Court. ', '<h4><b><font color=\"#222222\" face=\"mainFontOP\">The Chairman State Bank of India and another vs MJ James&nbsp;<br></font><font color=\"#222222\" face=\"mainFontOP\">Civil Appeal 8223 of 2009 decided on 16 November 2021<br></font><font color=\"#222222\" face=\"mainFontOP\">Justice L. Nageswara Rao and Justice Sanjiv Khanna&nbsp;<br></font><font color=\"#222222\" face=\"mainFontOP\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2009/7703/7703_2009_13_1501_31329_Judgement_16-Nov-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2009/7703/7703_2009_13_1501_31329_Judgement_16-Nov-2021.pdf</a><br></font><font color=\"#222222\" face=\"mainFontOP\">20. Now, we need to advert our attention on the aspect of the choice of representation in domestic inquiry. Both sides rely on the dictum of this Court in Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi (1993) 2 SCC 115 and National Seeds Corporation Ltd. v. K.V. Rama Reddy, (2006) 11 SCC 645 which hold that the right to be represented by a third person in domestic inquiries/tribunals is based upon the precept that it is not desirable to restrict right of representation by a counsel or agent of one’s choice. The ratio does not tantamount to acceptance of the proposition that such a right is an element of principles of natural justice, and its denial would immediately invalidate the inquiry. Representations are often restricted by a law, such as under Section 36 of the Industrial Disputes Act, 1947, as also by certified Standing Orders. The aforementioned two decisions ascribe to catena of decisions, including English case law on this subject, which accept that the right to be legally represented depends on how the rules govern such representation. Further, if the rules are silent, the party has no absolute right to be legally represented. However, the entitlement of a fair hearing is not to be dispensed with. What fairness requires would depend upon the nature of the investigation and the consequences it may have on the persons affected by it. Thus, the right to be represented by a counsel or agent of one’s choice is not an absolute right but one which can be controlled, restricted, or regulated by law, rules, or regulations. However, if the charge is of severe and complex nature, then the request to be represented through a counsel or agent should be considered. The above proposition flows from the entitlement of fair hearing, which is applicable in judicial as well as quasi-judicial decisions.&nbsp;</font></b></h4><h4><b><font color=\"#222222\" face=\"mainFontOP\">21. In Dharampal Satyapal Ltd. v. Deputy Commissioner of Central Excise, Gauhati and Others, (2015) 8 SCC 519 this Court has highlighted that procedural fairness is essential for arriving at correct decisions</font></b></h4><h4><b><font color=\"#222222\" face=\"mainFontOP\">22. Traditional English Law recognized and valued the rule against bias that no man shall be a judge in his own cause, i.e. nemo debet esse judex in propria causa; and the obligation to hear the other or both sides as no person should be condemned unheard, i.e. audi alteram partem. To these, new facets sometimes described as subsidiary rules have developed, including a duty to give reasons in support of the decision. Nevertheless, time and again the courts have emphasized that the rules of natural justice are flexible and their application depends on facts of each case as well as the statutory provision, if applicable, nature of right affected and the consequences.... The procedures which are considered inherent in the exercise of a quasi-judicial or administrative power are those which facilitate if not ensure a just and fair decision. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame work of law under which the enquiry is held and the constitution of the body of persons or tribunal appointed for that purpose. When a complaint is made that a principle of natural justice has been contravened, the court must decide whether the observance of that rule was necessary for a just decision in the facts of the case.</font><font color=\"#222222\" face=\"mainFontOP\"><br></font><font color=\"#222222\" face=\"mainFontOP\"><br></font></b></h4><p><br></p>', '64326827f57f3b940a2788e560c5f281.JPG', '077fd5ea7a2790ed79c1be398e826839.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-16', 1, '', '', '2021-11-17 02:59:25', '2021-11-17 02:59:25'),
(1163, 'ZBFW7yKIGPz8dhqpFeKRgP8zk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Violation of rule of \'\'utmost good faith\'\' and deliberate non-disclosure or misstatement of facts is a ground to reject temporary injunction or to vacate the order already granted. Karnataka High Court.', '<p><span style=\"font-weight: bolder;\">Sridhar Rao S vs Netflix Entertainment Services India LLp and another<br>Writ Petition 18038 of 2021 decided on 28 October 2021<br>Judgment </span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/419983/1/WP18038-21-28-10-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/419983/1/WP18038-21-28-10-2021.pdf</a></b></p><p><b>The petitioner, who is the plaintiff in O.S. No.5265/2021 on the file of the VII Additional City Civil and Sessions Judge, Bengaluru [for short \'the  civil Court\'], has filed this petition invoking the special jurisdiction of this Court under Article 227 of the Constitution of India because the civil Court has not accepted the petitioner\'s request for ad interim ex parte injunction restraining the respondents from streaming, broadcasting, telecasting or otherwise publishing the tele-documentary styled \"Crime Stories. India Detective titled A Murdered Mother - Series-1 of the Episode-1\".</b></p><p><b>2. The petitioner\'s case is that he is accused of committing offences punishable under Sections  302, 307, 212, 201 read with Section 34 of the Indian Penal Code, 1860 and a charge sheet is also filed against him after investigation. He was initially arrested on 06.02.2020 and the respondents videographed not only his arrest but also  the  subsequent  investigation  and this is presented as the tele-documentary as aforesaid. This violates the petitioner\'s right to privacy as also free and fair trial. The petitioner asserts that with  the  telecast of this tele-documentary, he has suffered humiliation with being asked to leave certain public places.</b></p><p><b>11.<span style=\"white-space:pre\">	</span>On the point of law, this Court must opine that with the decision of the Hon\'ble Supreme Court in Morgan Stanley\'s case referred to supra, it is settled that that the factors which should weigh with the Court for granting ex parte order of injunction are whether there would be irreparable or serious mischief to the plaintiff, whether refusal of ex parte order involve greater  injustice to the plaintiff; and the Courts will also have to consider whether the plaintiff has shown \'utmost good faith\' in making the application for grant of ex parte order.  </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The salutary principles in this regard as  enunciated by the Hon\'ble Supreme Court in the aforesaid decision read as under:</b></p><p><b><i>\"36. As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the court in the grant of ex parte injunction are -</i></b></p><p><b><i>[a] whether irreparable or serious mischief will ensue to the plaintiff;</i></b></p><p><b><i>[b] whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;</i></b></p><p><b><i>[c] the court will also consider  the  time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;</i></b></p><p><b><i>[d] the court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction;</i></b></p><p><b><i>[e] the court would expect a party applying for ex parte injunction to show utmost good faith in making the application.</i></b></p><p><b><i>[f] even if granted, the ex  parte injunction would be for a limited period of time.</i></b></p><p><b><i>[g] General principles like prima facie case, balance of convenience and irreparable loss would also be considered by the Court.\"</i></b></p><p><b>12.<span style=\"white-space:pre\">	</span>If there cannot be any quarrel with the proposition that a plaintiff would not be entitled for ex parte order if there is any deliberate non-disclosure or mis-statement of facts, the only  question  would therefore be whether there is deliberate non-disclosure   of material facts, and therefore violation of the rule of utmost good faith which must persuade this Court to conclude against the continuation of the interim order  for the period during which the  petitioner\'s  application is being considered by the civil Court.</b></p><p><b>15.<span style=\"white-space:pre\">	</span>This Court, on a conjoint reading of the statements in the plaint and in the affidavit, cannot but opine that there is a definite violation of the rule of \'utmost good faith\', a condition that must not be breached as canvassed by the learned senior Counsels both for grant of the ex parte interim order and for the continuation thereof.telecast, this Court would not have been persuaded to grant ad  interim ex parte order of injunction. The negotiations include request for payment of certain amount to the petitioner by the respondents. The question of greater injustice to the petitioner if there is  no extension of the interim order when the  application  is pending for consideration before the civil Court, is examined in the context of a possible  petitioner\'s  consent and a subsequent negotiation. This Court can only reasonably opine that the petitioner is not entitled for continuation of the ex-parte injunction granted by this Court.</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'b57a9d36d469d252af87f028dade6725.jpg', 'dcec993cdabfdbdb6618cd07a4a053e3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-16', 1, '', '', '2021-11-17 03:36:27', '2021-11-17 03:40:37'),
(1164, 'OazEhBZiSEs58kk5TQhZpe8jS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Only Indian courts and not foreign courts have jurisdiction to decide custody of a child brought to India especially when the parties married under the Hindu Marriage Act. Karnataka High Court.', '<p><span style=\"font-weight: bolder;\">Rohith Thammana Gowda vs State of Karnataka and others.<br></span><b>Writ Petition Habeus Corpus 76 of 2020 decided on 7 September 2021<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413469/1/WPHC76-20-07-09-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413469/1/WPHC76-20-07-09-2021.pdf</a></b><b><br></b></p><p><b>1.<span style=\"white-space:pre\">	</span>The petitioner (hereinafter referred to as the “husband”), the holder of a Master\'s Degree of Computer Science and a resident of Sammamish, Washington in   the USA working in Microsoft Corporation of the USA, is before this Court by way of this writ petition and is seeking for a writ of habeas corpus.</b></p><p><b>2.<span style=\"white-space:pre\">	</span>He contends that his 10 year old son was illegally removed by his wife, the 3rd respondent (hereinafter referred to as the “wife”), who incidentally is also an Engineer and who was working with T-Mobile in the US. He contends that his wife is keeping his son in illegal confinement with the support of her parents  in  Bengaluru and this Court is therefore required to direct his wife to produce his son before the Court and hand over the custody of his son to him.</b></p><p><b>33.<span style=\"white-space:pre\">	</span>Thus, even as per the US Court\'s order, both the husband and wife were ordered to be the custodians of the son and the son was to reside with the wife in Bengaluru.</b></p><p><b>38.<span style=\"white-space:pre\">	</span>Thus, even as per the parenting plan of the US Court, the wife would be the custodian of the son if she returned to King\'s County and if even is she did not choose to return to King\'s County, the husband was not granted exclusive custody and was only granted supervised custody i.e, custody in the presence of a third party.</b></p><p><b>51.<span style=\"white-space:pre\">	</span>The first issue raised by the husband is one of the exclusive jurisdiction of the US court to pass orders relating to custody of the son.</b></p><p><b>57.<span style=\"white-space:pre\">	</span>In this decision, Y.NARASIMHA RAO AND OTHERS Vs. Y.VENKATA LAKSHMI AND ANOTHER - (1991) 3 SCC 451 the Apex Court has held that the marriages which take place in the country can only be under the customary or the statutory law in force in this country and hence the only law that can be applicable to the matrimonial disputes is the one under which the parties were married and under no other law. This is on the principle that a marriage celebrated in one place would be valid everywhere in the world. If this principle were to be ignored a marriage celebrated under the laws of India would not be considered as marriages in other parts of the world and this would result in an absurd situation.</b></p><p><b>58.<span style=\"white-space:pre\">	</span>Thus, any dispute arising out of the marriage between the husband and the wife, which  was  admittedly celebrated under the Act at Bengaluru, would have to be considered only under the said law and only before the Courts prescribed under the said Act.</b></p><p><b>59.<span style=\"white-space:pre\">	</span>The US Court, in our view, could not assume jurisdiction merely because the husband and wife were residents of the Washington State for a period of 6 months preceding the filing of the petition.</b></p><p><b>60.<span style=\"white-space:pre\">	</span>It is also to be kept in mind that a  marriage between a man and woman is personal to them and is celebrated under their personal law, unless of course, they choose to celebrate it under a separate marriage  law like the Special Marriage Act. Once a marriage is celebrated under the Act, the same can only be dissolved under the said Act. The place or the country were a couple married under the Act choose to reside either temporarily or permanently after their marriage will not determine either the validity of their marriage or the manner in which the said marriage would have to be dissolved</b></p><p><b>61.<span style=\"white-space:pre\">	</span>As the question of custody of the children born to persons whose marriages celebrated under the  Act  is also provided under the provisions of the Act, obviously,  it is only the Courts prescribed under the said Act which would possess jurisdiction even in relation to matters of custody of children.</b></p><p><b>62.<span style=\"white-space:pre\">	</span>In the light of the discussion, we hold that the US Court did not possess the jurisdiction to adjudicate upon any matrimonial dispute between the husband and wife including the question of custody of the children having regard to the fact that their marriage was celebrated under the provisions of the Act.</b></p><p><b>65.<span style=\"white-space:pre\">	</span>The vexed question of the lawful custody  of  children whose parents were residing outside India and who had obtained orders relating to the custody in  foreign courts and the situation of a child brought into India in violation of the orders of the foreign court has been the subject matter of several decisions of the Apex Court spanning for the past few decades now.</b></p><p><b>73.<span style=\"white-space:pre\">	</span>As could be seen from all the above mentioned decisions, the overwhelming principle that emerges  is that in a case relating to the custody of the child, in a battle between parents who are resident outside the country, the principal obligation and mandate of the Courts is to keep in mind the singular factor of “the best interests of the child” and nothing else.</b></p><p><b>94.<span style=\"white-space:pre\">	</span>Writ petition is accordingly rejected, subject to the above mentioned visitation rights.</b></p><p><b>95.<span style=\"white-space:pre\">	</span>Before parting with the case, we would like to reiterate that it would be in the best interests of all the parties concerned and especially in the interest of the 10 year old that a solution which is acceptable to all is arrived at and the child is relieved of the trauma  of having to choose a parent to stay with.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'ffed9c966956bf180006fe1ca73a17f8.JPG', '2a44e9b56df7e84e7274cbd5d82c2bed.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-17', 1, '', '', '2021-11-18 03:01:50', '2021-11-18 03:08:14');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1165, 'JW360zejpsg2OinJpBbJlCEzD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'POCSO Act. Important ingredient for constituting offence of sexual assault is the “sexual intent” and not the “skin to skin” contact with the child. Supreme Court. ', '<p><b>Attorney General for India vs Satish and another&nbsp;<br>Criminal Appeal 1410 of 2021 decided on 18 November 2021<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link:<a href=\"https://main.sci.gov.in/supremecourt/2021/2286/2286_2021_32_1501_31537_Judgement_18-Nov-2021.pdf\" target=\"_blank\">&nbsp;https://main.sci.gov.in/supremecourt/2021/2286/2286_2021_32_1501_31537_Judgement_18-Nov-2021.pdf</a></span></b></p><p><b>33. There cannot be any disagreement with the submission made\r\nby Mr. Luthra for the accused that the expression “sexual intent”\r\nhaving not been explained in Section 7, it cannot be confined to any\r\npredetermined format or structure and that it would be a question\r\nof fact, however, the submission of Mr. Luthra that the expression\r\n‘physical contact’ used in Section 7 has to be construed as ‘skin to\r\nskin’ contact cannot be accepted. As per the rule of construction\r\ncontained in the maxim “Ut Res Magis Valeat Quam Pereat”, the\r\nconstruction of a rule should give effect to the rule rather than\r\ndestroying it. Any narrow and pedantic interpretation of the\r\nprovision which would defeat the object of the provision, cannot be&nbsp;accepted. It is also needless to say that where the intention of the\r\nLegislature cannot be given effect to, the courts would accept the\r\nbolder construction for the purpose of bringing about an effective\r\nresult. Restricting the interpretation of the words “touch” or\r\n“physical contact” to “skin to skin contact” would not only be a\r\nnarrow and pedantic interpretation of the provision contained in\r\nSection 7 of the POCSO Act, but it would lead to an absurd\r\ninterpretation of the said provision. “skin to skin contact” for\r\nconstituting an offence of “sexual assault” could not have been\r\nintended or contemplated by the Legislature. The very object of\r\nenacting the POCSO Act is to protect the children from sexual\r\nabuse, and if such a narrow interpretation is accepted, it would lead\r\nto a very detrimental situation, frustrating the very object of the\r\nAct, inasmuch as in that case touching the sexual or non sexual\r\nparts of the body of a child with gloves, condoms, sheets or with\r\ncloth, though done with sexual intent would not amount to an\r\noffence of sexual assault under Section 7 of the POCSO Act. The\r\nmost important ingredient for constituting the offence of sexual\r\nassault under Section 7 of the Act is the “sexual intent” and not the\r\n“skin to skin” contact with the child.&nbsp;<br></b></p><p><b>35. The act of touching any sexual part of the body of a child with\r\nsexual intent or any other act involving physical contact with sexual\r\nintent, could not be trivialized or held insignificant or peripheral so\r\nas to exclude such act from the purview of “sexual assault” under\r\nSection 7. As held by this court in case of Balaram Kumawat Vs.\r\nUnion of India (supra), the law would have to be interpreted\r\nhaving regard to the subject matter of the offence and to the object&nbsp;of the law it seeks to achieve. The purpose of the law cannot be to\r\nallow the offender to sneak out of the meshes of law.<br></b></p><p><b>Conclusion:\r\n40. In the light of the afore-discussed legal position, if the findings\r\nrecorded by the High Court are appreciated, it clearly emerges that\r\nthe High Court fell into error in case of the accused-Satish in holding\r\nhim guilty for the minor offences under Sections 342 and 354 of IPC\r\nand acquitting him for the offence under Section 8 of the POCSO&nbsp;Act. The High Court while specifically accepting the consistent\r\nversions of the victim and her mother i.e. informant about the\r\naccused having taken the victim to his house, having pressed the\r\nbreast of the victim, having attempted to remove her salwar and\r\npressing her mouth, had committed gross error in holding that the\r\nact of pressing of breast of the child aged 12 years in absence of\r\nany specific details as to whether the top was removed or whether\r\nhe inserted his hands inside the top and pressed her breast, would\r\nnot fall in the definition of sexual assault, and would fall within the\r\ndefinition of offence under Section 354 of the IPC. The High Court\r\nfurther erred in holding that there was no offence since there was\r\nno direct physical contact i.e. “skin to skin” with sexual intent<br></b></p><p><br></p>', 'e12cdc07c90ebe13577f6bf2d9221f52.JPG', '9e15d091302c3a82b11d10bc539cd986.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-18', 1, '', '', '2021-11-19 02:15:24', '2021-11-19 02:15:24'),
(1166, 'imWXwj5AsgKtZ3flkhMPEpXkj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. Claim of juvenility can be raised at any stage of a criminal proceeding, even after a final disposal of the case. Supreme Court analyses the principles.  ', '<p><b>Rishipal Singh Solanki vs State of Uttar Pradesh and others <br>Special Leave Petition (Crl) 6223 of 2021 decided on 18 November 2021<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/12866/12866_2021_43_1505_31402_Judgement_18-Nov-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/12866/12866_2021_43_1505_31402_Judgement_18-Nov-2021.pdf</a></span><br></b></p><p><b>29. What emerges on a cumulative consideration of\r\nthe aforesaid catena of judgments is as follows:<br></b></p><p><b>(i) A claim of juvenility may be raised at any\r\nstage of a criminal proceeding, even after\r\na final disposal of the case. A delay in\r\nraising the claim of juvenility cannot be\r\na ground for rejection of such claim. It\r\ncan also be raised for the first time\r\nbefore this Court.\r\n</b></p><p><b>(ii) An application claiming juvenility could\r\nbe made either before the Court or the JJ\r\nBoard.\r\n</b></p><p><b>(iia) When the issue of juvenility arises before\r\na Court, it would be under sub-section (2)\r\nand (3) of section 9 of the JJ Act, 2015\r\nbut when a person is brought before a\r\nCommittee or JJ Board, section 94 of the\r\nJJ Act, 2015 applies.\r\n</b></p><p><b>(iib) If an application is filed before the\r\nCourt claiming juvenility, the provision\r\nof sub-section (2) of section 94 of the JJ\r\nAct, 2015 would have to be applied or read\r\nalong with sub-section (2) of section 9 so\r\n43\r\nas to seek evidence for the purpose of\r\nrecording a finding stating the age of the\r\nperson as nearly as may be.\r\n</b></p><p><b>(iic) When an application claiming juvenility is\r\nmade under section 94 of the JJ Act, 2015\r\nbefore the JJ Board when the matter\r\nregarding the alleged commission of\r\noffence is pending before a Court, then\r\nthe procedure contemplated under section\r\n94 of the JJ Act, 2015 would apply. Under\r\nthe said provision if the JJ Board has\r\nreasonable grounds for doubt regarding\r\nwhether the person brought before it is a\r\nchild or not, the Board shall undertake\r\nthe process of age determination by\r\nseeking evidence and the age recorded by\r\nthe JJ Board to be the age of the person\r\nso brought before it shall, for the\r\npurpose of the JJ Act, 2015, be deemed to\r\nbe true age of that person. Hence the\r\ndegree of proof required in such a\r\nproceeding before the JJ Board, when an\r\napplication is filed seeking a claim of\r\n44\r\njuvenility when the trial is before the\r\nconcerned criminal court, is higher than\r\nwhen an inquiry is made by a court before\r\nwhich the case regarding the commission\r\nof the offence is pending (vide section 9\r\nof the JJ Act, 2015).\r\n</b></p><p><b>(iii) That when a claim for juvenility is\r\nraised, the burden is on the person\r\nraising the claim to satisfy the Court to\r\ndischarge the initial burden. However, the\r\ndocuments mentioned in Rule 12(3)(a)(i),\r\n(ii), and (iii) of the JJ Rules 2007 made\r\nunder the JJ Act, 2000 or sub-section (2)\r\nof section 94 of JJ Act, 2015, shall be\r\nsufficient for prima facie satisfaction of\r\nthe Court. On the basis of the aforesaid\r\ndocuments a presumption of juvenility may\r\nbe raised.\r\n</b></p><p><b>(iv) The said presumption is however not\r\nconclusive proof of the age of juvenility\r\nand the same may be rebutted by contra\r\nevidence let in by the opposite side. \r\n45\r\n</b></p><p><b>(v) That the procedure of an inquiry by a\r\nCourt is not the same thing as declaring\r\nthe age of the person as a juvenile sought\r\nbefore the JJ Board when the case is\r\npending for trial before the concerned\r\ncriminal court. In case of an inquiry, the\r\nCourt records a prima facie conclusion but\r\nwhen there is a determination of age as\r\nper sub-section (2) of section 94 of 2015\r\nAct, a declaration is made on the basis of\r\nevidence. Also the age recorded by the JJ\r\nBoard shall be deemed to be the true age\r\nof the person brought before it. Thus, the\r\nstandard of proof in an inquiry is\r\ndifferent from that required in a\r\nproceeding where the determination and\r\ndeclaration of the age of a person has to\r\nbe made on the basis of evidence\r\nscrutinised and accepted only if worthy of\r\nsuch acceptance.</b></p><p><b>\r\n(vi) That it is neither feasible nor desirable\r\nto lay down an abstract formula to\r\n46\r\ndetermine the age of a person. It has to\r\nbe on the basis of the material on record\r\nand on appreciation of evidence adduced by\r\nthe parties in each case.\r\n</b></p><p><b>(vii) This Court has observed that a hypertechnical approach should not be adopted\r\nwhen evidence is adduced on behalf of the\r\naccused in support of the plea that he was\r\na juvenile.\r\n</b></p><p><b>(viii) If two views are possible on the same\r\nevidence, the court should lean in favour\r\nof holding the accused to be a juvenile in\r\nborderline cases. This is in order to\r\nensure that the benefit of the JJ Act,\r\n2015 is made applicable to the juvenile in\r\nconflict with law. At the same time, the\r\nCourt should ensure that the JJ Act, 2015\r\nis not misused by persons to escape\r\npunishment after having committed serious\r\noffences.  </b></p><p><b>(ix) That when the determination of age is on\r\nthe basis of evidence such as school\r\nrecords, it is necessary that the same\r\nwould have to be considered as per Section\r\n35 of the Indian Evidence Act, inasmuch as\r\nany public or official document maintained\r\nin the discharge of official duty would\r\nhave greater credibility than private\r\ndocuments.\r\n(x) Any document which is in consonance with\r\npublic documents, such as matriculation\r\ncertificate, could be accepted by the\r\nCourt or the JJ Board provided such public\r\ndocument is credible and authentic as per\r\nthe provisions of the Indian Evidence Act\r\nviz., section 35 and other provisions.\r\n</b></p><p><b>(xi) Ossification Test cannot be the sole\r\ncriterion for age determination and a\r\nmechanical view regarding the age of a\r\nperson cannot be adopted solely on the\r\nbasis of medical opinion by radiological\r\nexamination. Such evidence is not\r\n48\r\nconclusive evidence but only a very useful\r\nguiding factor to be considered in the\r\nabsence of documents mentioned in Section\r\n94(2) of the JJ Act, 2015. <br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'f9257a2f366ce8031d65ed60e12a4001.jpeg', 'cc9a35449da79988265777d5de4412bf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-18', 1, '', '', '2021-11-19 02:40:32', '2021-11-19 02:49:56'),
(1167, '6CRENyl20Xw8ahtQX3rlxjWBY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Rejection of a public interest litigation in limine without a substantive adjudication on merits will NOT operate as resjudicata for a subsequent petition. Supreme Court. ', '<p><b>National Confederation of Officers Association\r\nof Central Public Sector Enterprises and Ors. vs Union of India &amp; Ors.<br>Writ Petition (C) No 229 of 2014 decided on 18 November 2021&nbsp;<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice Dr Dhananjaya Y Chandrachud and Justice B V Nagarathna<br>Judgment Link:&nbsp;</span><a href=\"https://main.sci.gov.in/supremecourt/2014/5445/5445_2014_34_1501_31393_Judgement_18-Nov-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2014/5445/5445_2014_34_1501_31393_Judgement_18-Nov-2021.pdf</a></b></p><p><b>30 Section 11 of the Code of Civil Procedure 1908 embodies the principles of\r\nres judicata and bars the court from deciding issues which have been directly or\r\nsubstantially in issue in an earlier proceeding between the same parties or parties\r\nclaiming under the same title and have been finally decided.&nbsp;<br></b></p><p><b>31 The principles of res judicata and constructive res judicata, which Section 11\r\nof the Code of Civil Procedure 1908 embodies, have been applied to the exercise of\r\nthe writ jurisdiction, including public interest litigation . Yet courts have been\r\ncircumspect in denying relief in matters of grave public importance, on a strict\r\napplication of procedural rules.<br></b></p><p><b>32 In Daryao v. State of U.P. (1962) 1 SCR 574 a Constitution Bench of this Court has held that\r\norders dismissing writ petitions in limine will not constitute res judicata. The Court\r\nnoted that while a summary dismissal may be considered as a dismissal on merits, it\r\nwould be difficult to determine what weighed with the Court without a speaking\r\norder. J<br></b></p><p><b>33 In State of Karnataka v. All India Manufacturers Organization (2006) 4 SCC 683, a three\r\njudge Bench has also held that res judicata would be applicable to a public interest\r\nlitigation if it was bona fide.</b></p><p><b>34 While determining the applicability of the principle of res judicata under\r\nSection 11 of the Code of Civil Procedure 1908, the Court must be conscious that\r\ngrave issues of public interest are not lost in the woods merely because a petition\r\nwas initially filed and dismissed, without a substantial adjudication on merits. There\r\nis a trend of poorly pleaded public interest litigations being filed instantly following a\r\ndisclosure in the media, with a conscious intention to obtain a dismissal from the\r\nCourt and preclude genuine litigants from approaching the Court in public interest.\r\nThis Court must be alive to the contemporary reality of “ambush Public Interest\r\nLitigations” and interpret the principles of res judicata or constructive res judicata in\r\na manner which does not debar access to justice. The jurisdiction under Article 32 is\r\na fundamental right in and of itself.</b></p><p><b>35 In this case, since the three judge Bench of this Court rejected the petition\r\nfiled by Maton Mines Mazdoor Singh in limine, without a substantive adjudication\r\non the merits of their claim, the present writ petition is not barred by res judicata.\r\n</b></p><p><br></p>', '16b32c2c9919eff42f7ab7648d0f4a21.jpg', '5e9c9233c2b2049ee6b95a39566c47c6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-18', 1, '', '', '2021-11-19 03:58:47', '2021-11-19 03:58:47'),
(1168, 'cJBFVuWHvZdMfKv3JxhGIrjcB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Land Revenue Act. Kumki rights are NOT pre-existing rights and they can be curtailed, abridged or taken away by the competent authority in a given case having regard to the facts and circumstances of the case. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Chandrahasa Bhandary and another vs The State of Karnataka and others.&nbsp;<br></span><b>Writ Appeal 346 of 2021 decided on 18 November 2021<br>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;<a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/421212/1/WA346-21-18-11-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/421212/1/WA346-21-18-11-2021.pdf</a></b></p><p><b>7. The short question that would arise for consideration before us is as to whether respondent No.2- Deputy Commissioner has power to withdraw the kumki privileges. The said issue is dealt with by this Court in K. Shambhat\'s case. In the said case, the Division Bench of this Court had an occasion to examine the scope and power of the Deputy Commissioner under Section 79(2) of the KLR Act. While interpreting the provision of the above said Section, this Court was of the view that it is not possible to take a view that sub-section(2) of Section 79 does not confer power on the State Government to extinguish the kumki rights. While the said provision specifically provides that kumki rights would&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of K.Sham Bhat and others .vs. State of Karnataka, by Secretary, to Government Revenue Department, Bangalore and others ILR 2003 KAR 3026&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">continue, the same provision provides that the continuance of kumki rights is subject to general or special orders that may&nbsp; be passed by the State Government from time to time. When the statute which provides for continuance of kumki rights also makes the continuance of such kumki rights subject to general or special orders of the State Government, such power must&nbsp; be understood as conferring power on the State&nbsp; Government to extinguish the continuance of kumki rights. The power of&nbsp; the State Government to pass appropriate orders under&nbsp; Section 79 sub-clause(2) has been delegated to the Deputy Commissioner. The Deputy Commissioner in his order has extinguished the kumki rights of the appellants, if any, in respect of the lands in question. The right to regulate the kumki rights has to be understood as the right to extinguish the kumki rights, depending upon the facts and circumstances of the case and the need of the State Government to make the land available to the State Government for disposal for public purpose. Therefore, the appellants on this point cannot detain this Court for long as the issue is put to rest in the judgment cited supra and the issue is no more resintegra.</b></p><p><b>8. If the above said principle laid down by the Division Bench of this Court in the judgment cited supra is taken into consideration, then we are of the view that even if&nbsp; kumki rights are recognized as property rights, however, such rights are subject to statutory rules and they are exercised subject&nbsp; to Section 79(2) of KLR Act. On a reading of Section 79 of the KLR Act and the principles laid down by a&nbsp; Co-Ordinate Bench of this Court in K.Shambhat\'s case, the rights of the appellants if any are not absolute. We are also&nbsp; of the&nbsp; view that the kumki rights are not pre-existing rights and they can be curtailed, abridged or taken away by the competent authority in a given case having regard to the facts and circumstances of the case. Therefore, the judgment rendered by the Apex Court in the case of State of Mysuru&nbsp; and&nbsp; others .vs. K. Chandrashekar Adiga and another is not applicable to the present case on hand though we have no&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cavil to the ratio laid down by the Apex Court in the aforesaid judgment. The appellants by seeking kumki rights are intending to enlarge their extent of land holding. Therefore,&nbsp; the said right is not absolute and the same is rightly declined&nbsp; in the present case on hand having regard to the public&nbsp; interest at large. The State with a noble cause has resolved to provide housing sites to weaker section of the society and when a public interest at large is pitted against an individual\'s cause, the public interest at large has to prevail. If the reasoning and the conclusions arrived at by the learned Single Judge is examined in the background of the above said facts, we are in total agreement with the findings recorded by the learned Single Judge. The grounds urged in the appeal memo would not displace the conclusions and findings arrived at by the learned Single Judge and therefore, would not warrant any interference at the hands of this Court.</b></p><p><br></p>', 'f53665116a55ecb279d803cf770ca370.JPG', '55cec8b3e26d604e0f847afafb81e384.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-19', 1, '', '', '2021-11-20 01:22:36', '2021-11-20 01:22:36'),
(1169, 'KD4fhj1WW1GG4X23gWblB0EJW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act, 1996. Dismissal of earlier arbitration proceedings is NOT a bar to initiate fresh arbitration proceedings under the same clause if the claims and disputes are different. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">M/S. Prasad and Company (Project Works) Limited vs Bharat Heavy </span><b>Electricals Limited and another.&nbsp;<br></b><span style=\"font-weight: bolder;\">Civil Miscellaneous Petition 44 of 2021 decided on 24 September 2021</span></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Both these petitions spring from a common agreement between the parties and are filed seeking a common prayer of appointment of an Arbitrator albeit for different disputes&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">arising out of the said agreement invoking the jurisdiction of&nbsp; this Court under sub-section (5) of Section&nbsp; 11&nbsp; of&nbsp; the&nbsp; Arbitration and Conciliation Act, 1996 (for short ‘the Act’). The petitioner in C.M.P.No.44 of 2021 would be referred to as the company and the petitioner in C.M.P.NO.229 of 2020 would be referred to as the BHEL in this order.</b><span style=\"font-weight: bolder;\"><br></span></p><p><b>3. The first phase of dispute was arbitrated by the Arbitral Tribunal of Justice V.Jagannathan, who by his order dated 2.12.2015 dismissed the claim of the company holding that the Arbitral Tribunal has no jurisdiction to arbitrate upon&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the dispute in the absence of NMDC as the contract between BHEL and the company was on back to back basis with the contract between NMDC and BHEL.&nbsp; Since&nbsp; the&nbsp; dispute&nbsp; was held to be not maintainable no other issue was gone into by the Arbitral Tribunal.</b></p><p><b>4. This order of the Arbitral Tribunal is called in question by the company in Arbitration Suit in A.S.No.195&nbsp; of&nbsp; 2015&nbsp; before the Court of the City Civil Judge at Bangalore and is pending consideration.</b></p><p><b>8. The facts in C.M.P. No.229 of 2020 are that this petition is preferred by the BHEL. Though the petition springs from the very same agreement certain claims of BHEL are the subject matter of this CMP. First phase of dispute and the&nbsp; second phase of dispute, as narrated hereinabove, are all common to this petition also and are, therefore, not reiterated.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The notice of termination that runs through the stream in both the petitions is common i.e., on 15-07-2019.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">This finding of the Arbitral Tribunal in A.C.No.50 of 2015 has been called in question by the company in an Arbitration Suit in A.S.No.195 of 2015 and the same is pending adjudication before the competent civil Court. The dispute now generated pertains to the aftermath of the aforesaid dispute. This dispute concerns termination of contract between the company and the BHEL which has now led to several claims of the company against the BHEL. In furtherance of those claims notice is&nbsp; issued by the company to the BHEL which is replied&nbsp; by&nbsp; rejecting arbitration itself on the ground that the arbitration is held to be not maintainable in Arbitration case No.50 of 2015.</b></p><p><b>15. The company has issued notices to NMDC as well which is in receipt of the same. The notice does not indicate about the earlier proceedings or earlier claims as the notice&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">clearly indicates that the claim that has arisen out of the illegal termination of contract by the BHEL on 15-07-2019 and the result of such termination being various claims with regard to certain dues to be paid to the company by the BHEL. Since the dispute that has arisen between the parties is completely different than the earlier dispute albeit under the same clauses&nbsp; of the agreement, the pendency of proceedings before the civil Court in the arbitration suit would also be not an impediment. What calls for interpretation before this&nbsp; Court&nbsp; in&nbsp; these petitions is whether the dispute between the parties&nbsp; is&nbsp; arbitrable in the light of the Clause 58 (supra) and in my considered view, it is arbitrable.</b></p><p><b>The petition is allowed</b></p>', '78e0d9a226f5b3a02fe8b47d054c6a51.jpg', '7d029f9f0fb289212d7c4a2d3b384c1c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-19', 1, '', '', '2021-11-20 02:54:58', '2021-11-20 02:54:58'),
(2831, 'N8upnvabJJTLt9yt5VZC7PAOn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Law abhors Statelessness of children”. Karnataka High Court comes to the rescue of minor child who lost Indian citizenship after the mother renounced Indian citizenship. Directs issuance of passport till the child attains majority. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Master Arya Selvakumar Priya and others Vs Joint Secretary and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 21642 of 2022 decided on 21 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioners are calling in question order dated 12-01-2022 passed by the 1st respondent/Joint Secretary and Chief Passport Officer, Ministry of External Affairs declining to grant an Indian passport to the 1st petitioner and have further sought quashment of a Surrender Certificate dated 22-05-2015 issued by the 5th respondent/Consulate General of India, Toronto and a consequential mandamus directing the 2nd respondent/Regional Passport Officer, Bengaluru to issue a valid Indian Passport to the 1st petitioner. In this order, for the sake of convenience 1st petitioner will be referred to as the son; 2nd petitioner as mother/wife and Sri Selvakumar Balasubramanian as the father/husband.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space:pre\">	</span>Shorn of unnecessary details, facts germane for a consideration of the lis, are as follows:- The 2nd petitioner/wife gets married to one Sri Selvakumar Balasubramanian/husband on 4-11-2005. Both the husband and wife were Indian Citizens, residing in India. From the wedlock a son is born on 5-03-2008 in India – the 1st petitioner. It appears that the husband decides to relocate to Canada owing to his avocation in the year 2011. The wife joined him at Canada along with the son. In the year 2012 the father returns to Bangalore with the son and hands over custody of the son to the parents of the wife i.e., the maternal grandparents of the child. It is the averment in the petition that after handing over the child to the grandparents, the husband lost complete touch with the family and various modes of contacting the husband have failed and he is inaccessible and untraceable even to this day. The mother continued to stay, pursuing her studies, in Canada while the son continued to stay with the grandparents in India.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>In the year 2015 precisely on 21-02-2015, on an application being made by the mother before the authorities at Canada seeking citizenship of Canada she was granted one on 21- 02-2015 and in furtherance of grant of citizenship, a Canadian passport was also issued in her favour on 07-04-2015. Therefore, the mother then becomes a citizen of Canada. After grant of citizenship the mother files an application before the Consulate General of Indian Embassy at Canada surrendering her citizenship of India and seeking an Overseas Citizen of India card.   Accepting the surrender application, the Government of India, in the Ministry of External Affairs, issued citizenship surrender certificate to the mother depicting that she has renounced Indian citizenship under the Citizenship Act, 1955 (hereinafter referred to as ‘the Act’ for short) and cancelled the passport. The surrender certificate was issued on 22-05-2015.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 4.<span style=\"white-space:pre\">	</span>After issuance of surrender certificate, since the son was staying in India with the grandparents and the father was also staying in India, the grandparents applied for issuance of a minor passport to the son. An Indian passport comes to be issued to the son on 24-07-2015 for a period of five years which was set to expire on 23-07-2020. The mother then relocates, due to her avocation, to the United Kingdom and is now residing in United Kingdom.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 5.<span style=\"white-space:pre\">	</span>On the ground that the husband had become untraceable for several years, wife registers a proceeding before the Family Court at Bangalore under Section 13(1)(ia) & (ib) of the  Hindu Marriage Act for divorce/annulment of marriage that took place on 4-11-2005 in M.C.No.4807 of 2017. The concerned Court records that on failure of efforts to get the respondent served including a paper publication, there was no warrant to wait for representation of the respondent/husband and then passed an ex parte order annulling the marriage on 04-09-2018 and since there was no contest in the matter, it directed permanent custody of the child to the mother. This order has become final. Therefore, the custody of the child goes to the mother legally.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space:pre\">	</span>The passport of the son issued on 24-07-2015 was set to expire on 23-07-2020, he was then 12 years old. Owing to such date of expiry, the mother makes an application before the Authorities seeking re-issuance of passport to the son. At the outset, the signature of the father was sought and the mother explains that the father was untraceable, and a decree of divorce is granted and the custody of the son was with the mother. It is then, the Authorities insisted production of document of custody i.e., the order of the Court and other details of the matter. The Authorities then realized that though the custody has been granted to the mother, the mother has renounced citizenship of India way back in the year 2015 and by operation of law the minor son also ceases to be a citizen of India. On that basis re-issuance of Indian passport to the son was declined. This led the mother filing an appeal before the Appellate Authority/1st respondent. The Appellate Authority recording the fact that Passport Rules require the parent in whose custody the minor child is, to be citizen of India for issuance of passport to the minor, affirms the order of the Regional Passport Officer who declined to re-issue passport in favour of the son. But, however, the Appellate Authority on humanitarian grounds to unite with his mother grants a temporary passport to the son to be effective from 21-03-2022 to expire on 20-03-2023. Before the expiry date would arrive, the present petition is preferred on 28-10- 2022 seeking the afore-quoted prayers.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record, in furtherance whereof the issue that falls for consideration is: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“Whether the son is entitled to the grant/re- issuance of an Indian passport?”<br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>The issue in the lis is required to be considered on the bedrock of the aforesaid legal frame work. Certain facts are not in dispute. The husband and the wife get married in India on 4.11.2005. Both the husband and the wife were Indian citizens born in India at the time of their marriage and were residing in India. From the wedlock, the son is born on 05-03-2008 in India to the parents who were Indian citizens. Therefore, by operation of Section 3, the son becomes a citizen of India by birth having born to Indian citizens. In 2011 the husband relocates to Canada. The wife follows him along with the son. In 2012 the husband comes back to India along with the son and hands over the child to the maternal grandparents of the child i.e., the parents of the wife and appears to have disappeared and the averment is, the father is not traceable even to this day. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">15.<span style=\"white-space:pre\">	</span>The mother who pursued her higher education in Canada applies for Canadian citizenship and was granted such citizenship on 21-02-2015. On such grant of Canadian citizenship, she was granted a Canadian passport on 07-04-2015. Therefore, from 07-04-2015 she becomes a full blown citizen of Canada. Since the Act does not permit dual citizenship, the mother submits an application form for surrender/renunciation of Indian citizenship.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>Later, the grandparents of the son in whose custody the son was throughout, applied for an Indian passport and the son was issued a minor passport on 24-07-2015 for a period of 5 years. The passport was set to expire on 23-07-2020. During the said period, the mother institutes proceedings seeking annulment of marriage before the Family Court at Bangalore. The family Court in terms of its order dated 04-09-2018 recording the fact that the husband did not appear before the Court despite paper publication grants a decree of divorce as was sought by the wife and since there was no contest, the custody of the son was ordered to be permanently with the mother. After the grant of divorce and permanent custody of the son, the mother applies for re-issuance of Indian passport to the son. It is then the Authorities seek the signature of the father only to be told that there is a decree of divorce and permanent custody is with the mother; the Authorities then seek decree of the Court and documents of the mother. Thereafter, the Authorities get to know that the mother has renounced citizenship of India and on such renouncement it was opined that the son cannot be re-issued the Indian passport, as the Passport Rules would indicate that passport to a minor can be issued only when the parent to whose custody the child has been granted, is on the date of consideration of the application for re-issuance of passport of the minor, an Indian citizen. Therefore, taking note of the documents of the mother, the passport of the son is declined to be re-issued. The legal guardian and the mother then filed an appeal before the Appellate Authority/1st respondent, who by the impugned order dated 12-01-2022 affirms the order passed by the Regional Passport Officer.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>What could be gathered from the order is that once the citizenship is renounced under Section 8 of the Act, the passport cannot be issued to the child as the applicant i.e., the mother is no longer a citizen of India on her acquiring Canadian nationality and formally renouncing her Indian citizenship. As per the Passport Rules, in case where one parent has renounced Indian citizenship and the other parent is still an Indian citizen, the citizenship of a minor shall be of that person who has legal custody of the minor child. The legal custody of the minor child is with the mother and the mother is now a citizen of Canada. By operation of law the child also has lost his Indian citizenship and can be regained only after he attains full age i.e.,18 years. The Appellate Authority however grants a short validity passport on humanitarian grounds to enable the child to travel abroad and re-unite with his mother. The kindness displayed by the Appellate Authority is appreciable. The mother is now working in United Kingdom and the boy has joined the mother in the United Kingdom on the strength of the passport. The passport so granted has also expired on 20-03-2023. Insofar as the challenge to the validity of Section 8(2) of the Act is concerned, the petitioners have not advanced any contention in support of the prayer that is sought. Even otherwise, merely because it has created prejudice to the mother, the provision of law cannot be held to be unconstitutional on the ground that it is arbitrary. The said prayer deserves to be rejected, as the foundation is fundamentally flawed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>On a coalesce of all the aforesaid facts and the legal frame work, the result is that the child has lost his Indian citizenship and cannot become a citizen of any other country in terms of their laws and for regaining Indian citizenship he has to come of full age, in terms of the proviso to sub-section (2) of Section 8 of the Act. That stage has not yet arrived as the child is now 15 years old. Three years have to pass by for the son to exercise his discretion either to become a citizen of any other country or to regain Indian citizenship, but till then he is rendered Stateless.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>On the bedrock of the aforesaid mandate of Human Rights and rights of a child qua the Conventions, the relief that is to be granted to the son is required to be considered. It is not in dispute that the child is born in India, to Indian citizens at the time of birth, which was in the year 2008. Both the parents relocate to Canada. The child has intermittently stayed in Canada and then in India with the grandparents. After staying for one year in Canada, the father comes back to India with the son, leaves him with the maternal grandparents and abandons the son. The mother continues to stay in Canada and also acquires citizenship of Canada and later, renounces the citizenship of India. The son then is issued a minor passport in the year 2015. The family Court grants a divorce to the couple and orders permanent custody of the son to be with the mother. This happens long after the mother had renounced the citizenship of this nation. Neither the father nor the mother thought of the child at that point in time i.e., at the time when the mother renounced her Indian citizenship. The passport issued to the son expires in 2020. It is then the mother wakes up and tries to retrace her steps with regard to renouncement of citizenship and the surrender certificate that was given by her in Canada in the year 2015. The parents forgot the child in the jugglery of settling their scores. The cry of such a child cannot be ignored by this Court. The obligation of the International Conventions qua child rights to which India is a signatory is that “no child should be left Stateless”. Therefore in the aforesaid facts, leaving open to the Ministry of Home Affairs to put up all its defence in any given case, I deem it appropriate to direct the respondents 1 and 2 to issue a passport to the 1st petitioner for the period between today and his attaining the age of 18 years, failing which, he would be rendered Stateless.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>Perhaps, the law makers would not have envisaged a situation of this kind that is brought before the Court for them to think of a solution in its Rules, guidelines or procedures stipulated under the Circulars, be it under the Act or the Passports Act. Though, in the considered view of this Court, a one of solution to a one of problem is to be rendered, such problems recurring will generate apathy towards a child. Therefore, it is for the Authorities to bring about necessary solution to redeem such unprecedented situations whenever they would occur.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 21.<span style=\"white-space:pre\">	</span>The son cannot but be held to be a citizen of India having taken birth in this land to the parents who were citizens of India at the time of birth of the son. Myriad circumstances prevailed leading to the defenceless situation of the child. The biological father though is now separated from the mother is still an Indian, notwithstanding the fact that he is not traceable.   Merely because the father is not traceable and the mother has been reckless in not knowing the consequences of renouncement of citizenship, the fate of the child cannot be left in limbo. It becomes a fit case where this Court has to exercise its jurisdiction under Article 226 of the Constitution of India to remedy the wrong qua the son of the 2nd petitioner, a wrong never committed by the child as “IF NOT THE COURTS WHO and IF NOT NOW, WHEN”.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>O R D E R </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Writ Petition is allowed in part.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>The challenge to the Constitutional validity of Section 8(2) of the Citizenship Act, 1955 or the prayer to read it down stands rejected.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f8428faa3f32711c845f0ccc21602c85.jpeg', '70f16d0c50cfccc3081b3bd5e82c7248.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-23', 1, '', '', '2023-03-23 16:55:24', '2023-03-23 11:26:53');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1171, 'Wo00LeoVOCEwNarscLByyHBPE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Section 14 of the Limitation Act would apply even in case where the Forum which had been approached by the plaintiff had jurisdiction but did not deem fit to exercise jurisdiction. Karnataka High Court', '<p><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Shashi Distilleries Pvt Ltd and others vs </span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">P.L.G. Manu and others.<br>Civil Revision Petition 336 of 2020 decided on 27 July 2021<br>J</span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">udgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/407866/1/CRP336-20-27-07-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/407866/1/CRP336-20-27-07-2021.pdf</a></b></p><p><b>14.1<span style=\"white-space:pre\">	</span>Whether Section 14 would only apply to the proceedings bonafide prosecuted in a forum without jurisdiction but would also apply to a forum which though had jurisdiction refused to entertain jurisdiction?</b></p><p><b>15.1. In the present petition, it is not in dispute that the proceedings had been filed before the Company Law Board under Section 235, 237, 397, 398 as also 403 of the Companies Act, 1956.</b></p><p><b>15.2. It cannot be disputed that any proceedings under the aforesaid provisions are required to be filed only before the Company Law Board. No reliefs under those provisions could be sought for before the Civil Court by filing a suit.</b></p><p><b>15.3. Thus, it is clear that the reliefs which had been sought for by the plaintiffs when the plaintiffs had approached the Company Law Board could not have been granted by the trial Court.</b></p><p><b>15.4. The Company Law Board while dealing with the matter has gone through the various contentions which have been raised and&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">answered several of those contentions but however has held that “the Courts time and again are of the view that the cases under Section 397/398 are summary proceedings and the Company Law Board cannot go into aspect of fraud, forgery of record, fabrication of record and the same has to be necessarily adjudicated only in a Civil Court by letting in oral and documentary evidence. In view of&nbsp; the above, this Bench does not have any power to deal with the nature of the case such as fraud, forgery, fabrication of records made in the petition”</b></p><p><b>15.5. The above finding does not in any manner indicate that the Board did not have jurisdiction to entertain proceedings under Section 235, 237, 397 and 398 of the Act, it only indicates that due to nature of allegations, the said allegations could be better adjudicated in a civil suit.</b></p><p><b>15.6. In the said circumstances, it cannot be said that there are no bonafide of plaintiffs in approaching the Company Law Board. The Company Law Board if it had thought fit to go into the matter, could have passed the necessary orders on the same and if such order that been passed, there would have been no need for the plaintiffs to approach the Civil Court. As aforesaid, the plaintiffs were constrained to approach the Civil Court only on account of the Company Law Board not entertaining the dispute raised before it.</b></p><p><b>15.7. In view of the above, I answer to point No.1 by holding that Section 14 of the Limitation Act would apply even in case where the Forum which had been approached by the plaintiffs had jurisdiction but did not exercise jurisdiction.</b></p><p><b><br></b></p><p><br></p>', 'a3fff43b51ade5dd018f4850d95bc755.jpeg', 'fc801d3b8cb33a60390b75a9be7b4299.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-19', 1, '', '', '2021-11-20 04:24:14', '2021-11-20 04:32:32'),
(1172, 'sxlXgHl3iAttMEYMTDSVlSXu9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Irrational apprehension of bias against the Hon\'ble Judge\'\'. Karnataka High Court rejects application seeking change of arbitrator, retired Supreme Court Judge, who as lawyer appeared against the company  25 years ago. ', '<p><b>M/s Prasad and Company (Project Works) Limited vs Bharat Heavy Electricals Limited and another&nbsp;</b></p><p><b>I.A. 1 of 2021 in Civil Miscellaneous Petition 229 of 2020 and connected matter disposed on 16 November 2021</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/421332/1/CMP44-21-16-11-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/421332/1/CMP44-21-16-11-2021.pdf</a></b></p><p><b>These applications<span style=\"white-space:pre\">	</span>are filed by the Bharath Heavy Electricals Limited (for short \'BHEL\'), seeking recall of the order&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dated 24.09.2021, insofar as it pertains to the appointment of arbitrator.</b></p><p><b>2.<span style=\"white-space:pre\">	</span>This Court by an order dated 24.09.2021, after hearing the learned counsel appearing for the parties observed that the dispute between the parties was arbitrable and&nbsp; appointed Sri Justice V.Gopala Gowda as a sole Arbitrator, to enter reference to the dispute between the parties, conduct proceedings and arbitrate the dispute between them.&nbsp;</b></p><p><b>The aforesaid premise on which the applications are preferred by BHEL is that, while practicing as an Advocate in Bangalore, the Hon’ble Judge was an advisor to BHEL Employees Union, had represented BHEL Employees Union against BHEL management in several matters before this Court and as an Advocate represented BHEL Employees Union. The Hon’ble Judge had fiercely opposed several of BHEL management’s decisions and actions. A judgment rendered by this Court in which the Hon’ble Judge had represented employees of BHEL against BHEL is appended to the application. On this premise averring that&nbsp; it does not have confidence of independence or impartiality on the part of the Hon’ble Judge, the applications are preferred.</b></p><p><b>Section 12 deals with grounds for challenge. When a person is approached in connection with his possible appointment as an Arbitrator, he shall disclose in writing any of the circumstances narrated in sub-clauses (a) and (b) of sub-section (1) of Section 12. Explanation-1 mandates that the grounds stated in Fifth Schedule shall guide in&nbsp; determining&nbsp; whether circumstances exist which give rise to justifiable&nbsp; doubts&nbsp; as&nbsp; to the independence or impartiality of an Arbitrator. Sub-section (3) of Section 12 mandates the circumstances under which it can be challenged. Section 13 deals with challenge procedure.&nbsp;</b></p><p><b>Clause 21 of Fifth Schedule mandates that if the Arbitrator has within the past three years served as counsel against one of the parties or an affiliate of one of the parties in an unrelated matter it will give rise to justifiable doubts as to the independence or impartiality of the Arbitrator. Therefore, the limitation that Clause 21 of the Fifth Schedule mandates is 3 years in the past. There is no provision which debars appointment of a particular Arbitrator beyond the said period.</b></p><p><b>8. It is now germane to notice the apprehension of BHEL. The Hon’ble Judge who is appointed as an Arbitrator was elevated in the year 1997 to this Court. Therefore, perhaps the Hon’ble Judge would have represented the employees or their Union upto 1997, which event was over 25 years ago. An event that has happened 25 years ago is pressed into service at this juncture on the plea that the Hon’ble Judge was at one point in time appearing against BHEL. If such a plea is accepted for change of the appointed Arbitrator, it would have a chilling effect on all the appointments, of arbitrators under the Act, as an Hon’ble Judge prior to the elevation to a constitutional Court will have been a counsel for any of the managements or any of the employees or sometimes parties to the dispute. Expressing no confidence on the specious plea that the Hon’ble Judge has appeared against&nbsp; BHEL 25 years ago, cannot be&nbsp; imagined to be&nbsp; a ground to change the Arbitrator, who is yet to enter upon the reference and arbitrate the dispute.</b></p><p><b>In the light of the judgments of the Apex Court (supra), the Act being a complete code, it takes within its sweep the issue of independence or impartiality on the&nbsp; part&nbsp; of&nbsp; the&nbsp; Arbitrator&nbsp; and&nbsp; the remedy for such grievance of the parties against the learned Arbitrator&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">.If the application filed is considered on the touchstone of the principles laid down in the judgment of the Apex Court in K.D.BALI (supra), it cannot but be held that the application is shrouded with vague suspicion, whim, caprice of BHEL, as it is an irrational apprehension of bias against the Hon\'ble Judge, as the dispute does not even concern the Employees of BHEL or the Employees Union of BHEL. It is a dispute arising out of a commercial transaction between the protagonists in the subject conundrum. Mere suspicion cannot be the ground to interfere with the appointment on any of the imaginary apprehension of BHEL.</b></p><p><b>Accordingly, the applications are rejected.</b></p>', 'abc350428728f0801720c80b4e13d8dc.jpg', 'e6f33f4f8f2c3b60f5a6bcc991d4ec7f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-20', 1, '', '', '2021-11-21 01:13:00', '2021-11-21 01:13:00'),
(1173, 'y06pmo3f4s3GsHdMkVJECXVzn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Complaint under Section 138 of the Negotiable Instruments Act without signature of the complainant is maintainable provided the complaint is verified before the Magistrate. Supreme Court ', '<p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Indra Kumar Patodia &amp; Anr. vs Reliance Industries Ltd. and Ors<br></span>Criminal Appeal 1837 of 2012\r\ndecided on 22 November 2012<br>Justice P. Sathasivam and Justice Ranjan Gogoi<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/jonew/judis/39760.pdf\" target=\"_blank\">https://main.sci.gov.in/jonew/judis/39760.pdf</a></span><br></b></p><p><b>(h) By impugned common judgment dated 17/18.03.2010,\r\nthe Division Bench of the High Court, disposed of the matter\r\nby answering point No.1 in the affirmative holding that the\r\ncomplaint under Section 138 of the Act is maintainable and\r\nwhen such complaint is subsequently verified by the\r\ncomplainant and the process is issued by the Magistrate after\r\nverification, it cannot be said that the said complaint is “nonentia” and the prosecution of such complaint is maintainable.<br></b></p><p><b>7) From the rival contentions, the only question for\r\nconsideration before this Court is that whether the complaint\r\nwithout signature of the complainant under Section 138 of the\r\nAct is maintainable when such complaint is verified by the\r\ncomplainant and the process is issued by the Magistrate after\r\nverification.&nbsp;<br></b></p><p><b>9) The Act was amended by Banking, Public Financial\r\nInstitutions and Negotiable Instruments Laws (Amendment\r\nAct) 1988 wherein new Chapter XVII was incorporated for\r\npenalties in case of dishonour of cheques due to insufficiency\r\nof funds in the account of the drawer of the cheque. These\r\nprovisions were incorporated in order to encourage the culture\r\nof use of cheques and enhancing the credibility of the\r\ninstrument. The insertion of the new Chapter and\r\namendments in the Act are aimed at early disposal of cases\r\nrelating to dishonour of cheques, enhancing punishment for\r\noffenders, introducing electronic image of a truncated cheque\r\nand a cheque in the electronic form as well as exempting an\r\nofficial nominees director from prosecution under the Act...... The important question in the instant\r\ncase is what is meant by ‘complaint in writing’. Whether\r\ncomplaint should be in writing simpliciter or complaint being\r\nin writing requires signature below such writing.<br></b></p><p><b>10) The object and scope of Sections 138 and 142 of the Act\r\nhas been considered by this Court in Pankajbhai Nagjibhai\r\nPatel vs. State of Gujarat and Another, (2001) 2 SCC 595.<br></b></p><p><b>11) It is also relevant to refer a decision of this Court in\r\nM.M.T.C. Ltd. and Another vs. Medchl Chemicals and\r\nPharma (P) Ltd. and Another, (2002) 1 SCC 234. The\r\nquestion in that decision was whether a complaint filed in the\r\nname and on behalf of the company by its employee without\r\nnecessary authorization is maintainable. After analyzing the\r\nrelevant provisions and language used in Sections 138 and\r\n142(a) of the Act, this Court held that such complaint is\r\nmaintainable and held that want of authorization can be\r\nrectified even at a subsequent stage.&nbsp;<br></b></p><p><b>15) In the case on hand, the complaint was presented in\r\nperson on June 3, 1998 and on the direction by the\r\nMagistrate, the complaint was verified on July 30, 1998 and\r\nduly signed by the authorized officer of the Company-the\r\ncomplainant. As rightly pointed out by the Division Bench, no\r\nprejudice has been caused to the accused for non-signing the\r\ncomplaint. The statement made on oath and signed by the\r\ncomplainant safeguards the interest of the accused. In view of&nbsp;the same, we hold that the requirements of Section 142(a) of\r\nthe Act is that the complaint must necessarily be in writing\r\nand the complaint can be presented by the payee or holder in\r\ndue course of the cheque and it need not be signed by the\r\ncomplainant. In other words, if the legislature intended that\r\nthe complaint under the Act, apart from being in writing, is\r\nalso required to be signed by the complainant, the legislature\r\nwould have used different language and inserted the same at\r\nthe appropriate place. In our opinion, the correct\r\ninterpretation would be that the complaint under Section\r\n142(a) of the Act requires to be in writing as at the time of\r\ntaking cognizance, the Magistrate will examine the\r\ncomplainant on oath and the verification statement will be\r\nsigned by the complainant.<br></b></p><p><b>19) In the light of the above discussion, taking note of\r\nvarious provisions of the Act and the Code which we have\r\nadverted above, we hold that the complaint under Section 138\r\nof the Act without signature is maintainable when such\r\ncomplaint is verified by the complainant and the process is\r\nissued by the Magistrate after due verification.&nbsp;</b><br></p>', 'df7e81bf66347ca53dd17324c364af9f.JPG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-21', 1, '', '', '2021-11-21 17:50:15', '2021-11-21 17:50:15'),
(1174, '1WlxemMpUnIt3LK07qHb9FzL7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Dishonour of cheque on the ground that the \'\'signatures do not match\'\' or that the \'\'image is not found\'\' would constitute a dishonour within the meaning of Section 138 of N.I.Act when the cheque amount is not paid despite notice. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin-bottom: 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><i><span style=\"font-size: 10pt; font-family: Verdana, sans-serif;\">Laxmi Dyechem v. State of Gujarat</span></i></b><b><span style=\"font-size: 10pt; font-family: Verdana, sans-serif;\"><o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 10pt; font-family: Verdana, sans-serif;\">Criminal Appeal 1870 of 2012 and\r\nconnected matters decided on 27 November 2012 <o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\">5.</span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"> The long and short of the matter is that the cheques remained\r\nunpaid despite notice served upon the respondents that culminated in the filing\r\nof forty different complaints against the respondents under Section 138 of the\r\nNegotiable Instruments Act before the learned trial court who took cognizance\r\nof the offence and directed issue of summons to the respondents for their\r\nappearance. It was at this stage that Special Criminal Applications Nos.\r\n2118-43 of 2009 were filed by Shri Mustafa Surka, Accused 5 who happened to be\r\none of the signatories to the cheques in question. The principal contention\r\nurged before the High Court in support of the prayer for quashing of the\r\nproceedings against the signatories to the cheques was that the dishonour of\r\ncheques on account of the signatures “not being complete” or “no image found”\r\nwas not a dishonour that could constitute an offence under Section 138 of the\r\nNegotiable Instruments Act.<o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\">8.</span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"> Chapter XVII comprising Sections 138 to 142 of the Negotiable\r\nInstruments Act was introduced in the statute by Act 66 of 1988. The object\r\nunderlying the provision contained in the said Chapter was aimed at inculcating\r\nfaith in the efficacy of banking operations and giving credibility to\r\nnegotiable instruments in business and day-to-day transactions by making\r\ndishonour of such instruments an offence. A negotiable instrument whether the\r\nsame is in the form of a promissory note or a cheque is by its very nature a\r\nsolemn document that carries with it not only a representation to the holder in\r\ndue course of any such instrument but also a promise that the same shall be\r\nhonoured for payment. To that end Section 139 of the Act raises a statutory\r\npresumption that the cheque is issued in discharge of a lawfully recoverable\r\ndebt or other liability. This presumption is no doubt rebuttable at trial but\r\nthere is no gainsaying that the same favours the complainant and shifts the\r\nburden to the drawer of the instrument (in case the same is dishonoured) to\r\nprove that the instrument was without any lawful consideration. It is also\r\nnoteworthy that Section 138 while making dishonour of a cheque an offence\r\npunishable with imprisonment and fine also provides for safeguards to protect\r\ndrawers of such instruments where dishonour may take place for reasons other\r\nthan those arising out of dishonest intentions. It envisages service of a\r\nnotice upon the drawer of the instrument calling upon him to make the payment\r\ncovered by the cheque and permits prosecution only after the expiry of the\r\nstatutory period and upon failure of the drawer to make the payment within the\r\nsaid period.<o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\">16.</span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"> The above line of decisions leaves no room for holding that the\r\ntwo contingencies envisaged under Section 138 of the Act must be interpreted\r\nstrictly or literally. We find ourselves in respectful agreement with the\r\ndecision in <i>Magma case</i> [(1999) 4 SCC 253 : 1999 SCC (Cri) 524]\r\nthat the expression “amount of money … is insufficient” appearing in Section\r\n138 of the Act is a genus and dishonour for reasons such “as account closed”,\r\n“payment stopped”, “referred to the drawer” are only species of that genus.\r\nJust as dishonour of a cheque on the ground that the account has been closed is\r\na dishonour falling in the first contingency referred to in Section 138, so\r\nalso dishonour on the ground that the “signatures do not match” or that the\r\n“image is not found”, which too implies that the specimen signatures do not\r\nmatch the signatures on the cheque would constitute a dishonour within the\r\nmeaning of Section 138 of the Act:<o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\">20.</span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"> In the result, we allow these appeals, set aside the judgment and\r\norders [<i>Mustafa Surka</i> v. <i>State of Gujarat</i>, Special\r\nCriminal Application No. 2118 of 2009, order dated 19-4-2010 (Guj)] , [<i>Tytan\r\nOrganics (P) Ltd.</i> v. <i>State of Gujarat</i>, Special Criminal\r\nApplication No. 896 of 2010, order dated 27-8-2010 (Guj)] passed by the High\r\nCourt and dismiss the special criminal applications filed by the respondents.\r\nThe trial court shall now proceed with the trial of the complaints filed by the\r\nappellants expeditiously. We make it clear that nothing said in this judgment\r\nshall be taken as an expression of any final opinion on the merits of the case\r\nwhich the trial court shall be free to examine on its own. No costs.</span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; text-indent: 18pt; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"text-indent: 18pt; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\">18.</span></span><span style=\"text-indent: 18pt; font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"> It was contended by the learned counsel for the respondent that\r\nthe respondent Company had offered to issue new cheques to the appellant upon\r\nsettlement of the accounts and that a substantial payment has been made towards\r\nthe outstanding amount. We do not think that such an offer would render illegal\r\na prosecution that is otherwise lawful. The offer made by the respondent\r\nCompany was in any case conditional and subject to the settlement of accounts.\r\nSo also whether the cheques were issued fraudulently by the authorised\r\nsignatory for amounts in excess of what was actually payable to the appellant\r\nis a matter for examination at the trial. That the cheques were issued under\r\nthe signature of the persons who were authorised to do so on behalf of the\r\nrespondent Company being admitted would give rise to a presumption that they\r\nwere meant to discharge a lawful debt or liability. Allegations of fraud and\r\nthe like are matters that cannot be investigated by a court under Section 482\r\nCrPC and shall have to be left to be determined at the trial after the evidence\r\nis adduced by the parties.</span><br></b></p><p>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n</p><p class=\"MsoNormal\"><o:p><b> </b></o:p></p>', '4b4e0ae28171a5ac98518818db286c74.jpg', 'd4ed18a1a6e9ea6d0c57e53189b916fe.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-21', 1, '', '', '2021-11-21 18:03:31', '2021-11-21 18:06:07'),
(1175, 'Yo4rdNirDMHEiCXu4bVve8gMo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Insolvency and Bankruptcy Code. Residuary jurisdiction of the NCLT cannot be invoked to adjudicate upon the contractual dispute between the parties unrelated to the insolvency of the Corporate Debtor. Supreme Court.', '<p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">TATA Consultancy Services Limited</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;vs&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Vishal Ghisulal Jain&nbsp;</span>Resolution Professional, SK Wheels Private Limited<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Civil Appeal No 3045 of 2020 decided on 23 November 2021<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgement Link: </span><a href=\"https://main.sci.gov.in/supremecourt/2020/16761/16761_2020_4_1502_31612_Judgement_23-Nov-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/16761/16761_2020_4_1502_31612_Judgement_23-Nov-2021.pdf</a></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Justice Dr Dhananjaya Y Chandrachud and Justice A S Bopanna</b></span></p><p><b>16. Based on the appeal, two issues have arisen for consideration before this\r\nCourt:\r\n(i) Whether the NCLT can exercise its residuary jurisdiction under Section\r\n60(5)(c) of the IBC to adjudicate upon the contractual dispute between\r\nthe parties.</b></p><p><b>18. Section 238 provides that the IBC overrides other laws, including any\r\ninstrument having effect by virtue of law. The text of Section 238 stipulates thus:\r\n“Section 238 - Provisions of this Code to override other laws\r\nThe provisions of this Code shall have effect, notwithstanding\r\nanything inconsistent therewith contained in any other law for\r\nthe time being in force or any instrument having effect by\r\nvirtue of any such law.</b></p><p><b>19. In Indus Biotech (P) Ltd. v. Kotak India Venture (Offshore) Fund, a\r\nthree judge Bench of this Court, of which one of us was a part (Justice AS\r\nBopanna), held that Section 238 of the IBC overrides all other laws. This Court\r\nwas considering whether a reference to arbitration made under Section 8 of the\r\nArbitration and Conciliation Act 1996 in terms of the agreement between the\r\nparties would affect the jurisdiction of the NCLT to examine an application filed\r\nunder Section 7 of the IBC.</b></p><p><b>20. In Gujarat Urja (supra), a two judge Bench of this Court, of which one of\r\nus was a part (Justice DY Chandrachud), held that a power purchase agreement,\r\nwhich is a bilateral commercial contract, is an ‘instrument’ under Section 238.\r\nNotably, the power purchase agreement provided that the disputes between the\r\nparties relating to the agreement would be entertained by Gujarat Electricity\r\nRegulatory Commission. But since Section 238 provides an overriding effect to\r\nthe provisions of the IBC over any instrument having effect by law, it was held\r\nthat the NCLT had jurisdiction over the dispute which arose in the context of\r\ninsolvency proceedings.&nbsp;&nbsp;<br></b></p><p><b>21. Section 60(5)(c) grants residuary jurisdiction to the NCLT to adjudicate any\r\nquestion of law or fact, arising out of or in relation to the insolvency resolution of\r\nthe Corporate Debtor.</b></p><p><b>26. In Gujarat Urja (supra), the contract in question was terminated by a third\r\nparty based on an ipso facto clause, i.e., the fact of insolvency itself constituted\r\nan event of default. It was in that context, this Court held that the contractual\r\ndispute between the parties arose in relation to the insolvency of the corporate\r\ndebtor and it was amenable to the jurisdiction of the NCLT under Section\r\n60(5)(c). This Court observed that “….NCLT has jurisdiction to adjudicate\r\ndisputes, which arise solely from or which relate to the insolvency of the\r\ncorporate debtor… The nexus with the insolvency of the corporate debtor must&nbsp;exist” (para 69). Thus, the residuary jurisdiction of the NCLT cannot be invoked if\r\nthe termination of a contract is based on grounds unrelated to the insolvency of\r\nthe Corporate Debtor. </b></p><p><b><br></b></p><p><b><br></b></p><p><b>&nbsp;<br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'c5d48e60a55bd09bf5c438d121464fae.JPG', '2a46e4c7b79136c9f248cbdc746fffc5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-23', 1, '', '', '2021-11-24 02:35:33', '2021-11-24 02:35:33'),
(1176, 'Cn2FwX7uZch6VAfMu1fxoYCGo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'A scheme can be held bad only within the contours of the Constitution irrespective of the intent with which the scheme was introduced\'\'. Supreme Court while upholding TN loan waiver only to small and marginal farmers. ', '<p><b>State of Tamil Nadu &amp; Anr. vs National South Indian River Interlinking …Respondent\r\nAgriculturist Association<br>Civil Appeal No. 6764 of 2021 decided on 23 November 2021<br>Justice&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Dr Dhananjaya Y Chandrachud and Justice AS Bopanna&nbsp;<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2017/16734/16734_2017_4_1501_31612_Judgement_23-Nov-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2017/16734/16734_2017_4_1501_31612_Judgement_23-Nov-2021.pdf</a></span></b></p><p><b>A Division Bench of the Madras High Court at the Madurai Bench allowed\r\nthe writ petition filed by the Respondent under Article 226 of the Constitution for\r\nquashing G.O Ms. No. 50 which granted loan waiver to small and marginal\r\nfarmers. The High Court held the grant of loan waivers only to small and marginal\r\nfarmers to be arbitrary and directed the appellant to grant the same benefit to all\r\nfarmers irrespective of the extent of landholding.<br></b></p><p><b>26 The High Court in the impugned judgment has observed that the scheme\r\nis both under-inclusive and over-inclusive since the total extent of land held by a\r\nperson is calculated based on the information in the landholding register which\r\npermits discrepancies. It also held the scheme to be under-inclusive for not\r\nextending the benefit to ‘other farmers’ or the ‘large farmers’.</b></p><p><b>27 Ambica Mills (supra) justified under-inclusiveness on the grounds of\r\nrecognition of degrees of harm, administrative convenience, and legislative\r\nexperimentation. Reference was made to Justice Oliver Wendell Holmes’s\r\nobservation in Missouri, K&amp; T Rly v. May15, that “legislation should not be\r\ndisturbed by the Court unless it can clearly see that there is no fair reason for the\r\nlaw which would not require with equal force its extension to those whom it\r\nleaves untouched”, to state that the judiciary must exercise self-restraint in such\r\ncases. In NP Basheer v. State of Kerala16, a two judge Bench of this Court held\r\nthat if the extent of over-inclusiveness and under-inclusiveness is marginal, then\r\nit could not be held to be violative of Article 14 of the Constitution.&nbsp;&nbsp;<br></b></p><p><b>28 The determination of whether the classification is under-inclusive is closely\r\nrelated to the test that is undertaken by the Court while determining the\r\nrelationship of the means to the end. This Court follows the two-pronged test to\r\ndetermine if there has been a violation of Article 14. The test requires the court to\r\ndetermine if there is a rational nexus with the object sought to be achieved.\r\nJustice P N Bhagwati (as the learned Chief Justice then was) in EP Royappa v.&nbsp;State of Tamil Nadu17 held that arbitrariness of State action is sufficient to\r\nconstitute a violation of Article 14. Thus, it came to be recognized that the\r\nequality doctrine as envisaged in the Constitution not only guarantees against\r\ncomparative unreasonableness but also non-comparative unreasonableness.18\r\nThis Court in Modern Dental College and Research Centre v. State of MP19,\r\ninvoked the proportionality test while testing the validity of the statute and rules\r\nthat sought to regulate admission, fees and provided reservations for\r\npostgraduate courses in private educational institutions. In Subramanian Swamy\r\nv. Union of India20, the Court used the proportionality test to determine if the\r\noffence of criminal defamation prescribed under Sections 499 and 500 of the IPC\r\nviolates the freedom of speech and expression under Section 19(1)(a). In Justice\r\nPuttaswamy (9J) v. Union of India21, a nine judge Bench of this Court held that&nbsp;the right to privacy is a fundamental right. The proportionality standard was used\r\nin the context of determining the limits that could be imposed on the right to\r\nprivacy. The Constitution Bench then dealt with the proportionality test in Justice\r\nPuttaswamy (Retd.) v. Union of India22, to determine if the Aadhar scheme\r\nviolated the right to privacy of an individual. Our Courts have used the\r\nproportionality standard to determine non-classificatory arbitrariness, and have\r\nused the twin test to determine if the classification is arbitrary. <br></b></p><p><b>30 Article 15(1) of the Indian Constitution specifically states that the State\r\nshall not discriminate on the grounds of ‘religion, race, caste, sex, place of birth\r\nor any of them’. Since the ‘protective discrimination’ in Anuj Garg (supra) was\r\nbased on one of the grounds in Article 15, the Court thought it fit to test its\r\nconstitutionality on a higher degree of scrutiny. A similar line of reasoning was\r\ntaken up by Justice Indu Malhotra in Navtej Singh Johar (supra) where she held\r\nthat Section 377 IPC does not fulfil the rational nexus test because the\r\n“legislation discriminates on the basis of an intrinsic and core trait of an individual,\r\nit cannot form a reasonable classification based on an intelligible differentia”.<br></b></p><p><b>31 While non-classification arbitrariness is tested based on the proportionality\r\ntest, where the means are required to be proportional to the object, classification\r\narbitrariness is tested on the rational nexus test, where it is sufficient if the means&nbsp;share a ‘nexus’ with the object. The degree of proof under the test would impact\r\nthe judgment of this Court on whether the law is under-inclusive or over-inclusive.\r\nA statute is ‘under-inclusive’ if it fails to regulate all actors who are part of the\r\nproblem. It is ‘over-inclusive’ if it regulates actors who are not a part of the\r\nproblem that the statute seeks to address. The determination of underinclusiveness and over-inclusiveness, and degree of deference to it is dependent\r\non the relationship prong (‘rational nexus’ or ‘proportional’) of the test.</b></p><p><b> \r\n33 The Scheme in issue was introduced in pursuance of an electoral promise\r\nmade by the then party in power in Tamil Nadu. The High Court seems to have\r\nbeen of the view that because the scheme was in pursuance of an electoral\r\npromise, it is constitutionally suspect. This view was made on an assumption that\r\nno study must have been conducted before the electoral promise was made. It is\r\nsettled law that a scheme cannot be held to be constitutionally suspect merely\r\nbecause it was based on an electoral promise.24 A scheme can be held suspect\r\nonly within the contours of the Constitution, irrespective of the intent with which\r\nthe scheme was introduced. The scheme propounded by the State of Tamil Nadu\r\npasses muster against the constitutional challenge. The High Court has erred in\r\nholding otherwise. During the pendency of the proceedings the State has granted\r\na broader coverage, based on its assessment of the situation.</b></p><p><b>34 For the reasons indicated above, the appeal is allowed and the judgment\r\nof the Madras High Court at the Madurai Bench dated 4 April 2017 is set aside.&nbsp;</b><br></p>', '7ac01909ad694a1ef66b99e75d9340b5.JPG', 'ffce6c674d177c51be88ff793d7ee253.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-23', 1, '', '', '2021-11-24 03:13:20', '2021-11-24 03:13:20'),
(1177, 'HR2ZkCbhe0Iv1M2xaY433eMgt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transfer of Property Act. Sham transactions. Sale of property in favour of minor with no earning or income proof is void being executed without any consideration. Supreme Court. ', '<p><b>Kewal Krishan vs Rajesh Kumar and others.&nbsp;<br>Civil Appeal 6989-6992 of 2021 decided on 22 November 2021<br>Justice Ajay Rastogi and Justice Abhay S Oka<br>Judgment&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2015/29165/29165_2015_44_1501_31443_Judgement_22-Nov-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2015/29165/29165_2015_44_1501_31443_Judgement_22-Nov-2021.pdf</a></span></b></p><p><b>15...... Hence, a sale of an immovable property has to be for a price. The\r\nprice may be payable in future. It may be partly paid and the remaining\r\npart can be made payable in future. The payment of price is an\r\nessential part of a sale covered by section 54 of the TP Act. If a sale\r\ndeed in respect of an immovable property is executed without payment\r\nof price and if it does not provide for the payment of price at a future\r\ndate, it is not a sale at all in the eyes of law. It is of no legal effect.\r\nTherefore, such a sale will be void. It will not effect the transfer of the\r\nimmovable property. </b></p><p><b>16. Now, coming back to the case in hand, both the sale deeds\r\nrecord that the consideration has been paid. That is the specific case\r\nof the respondents. It is the specific case made out in the plaints as\r\noriginally filed that the sale deeds are void as the same are without\r\nconsideration. It is pleaded that the same are sham as the purchasers\r\nwho were minor sons and wife of Sudarshan Kumar had no earning\r\ncapacity. No evidence was adduced by Sudarshan Kumar about the&nbsp;payment of the price mentioned in the sale deeds as well as the\r\nearning capacity at the relevant time of his wife and minor sons.\r\nHence, the sale deeds will have to be held as void being executed\r\nwithout consideration. Hence, the sale deeds did not affect in any\r\nmanner one half share of the appellant in the suit properties. In fact,\r\nsuch a transaction made by Sudarshan Kumar of selling the suit\r\nproperties on the basis of the power of attorney of the appellant to his\r\nown wife and minor sons is a sham transaction. Thus, the sale deeds\r\nof 10th April 1981 will not confer any right, title and interest on\r\nSudarshan Kumar’s wife and children as the sale deeds will have to be\r\nignored being void. It was not necessary for the appellant to\r\nspecifically claim a declaration as regards the sale deeds by way of\r\namendment to the plaint. The reason being that there were specific\r\npleadings in the plaints as originally filed that the sale deeds were void.\r\nA document which is void need not be challenged by claiming a\r\ndeclaration as the said plea can be set up and proved even in\r\ncollateral proceedings. <br></b></p><p><b>17. As no title was transferred under the said sale deeds, the\r\nappellant continues to have undivided half share in the suit properties.\r\nThat is how the District Court passed the decree holding that the\r\nappellant is entitled to joint possession of the suit properties along with\r\nSudarshan Kumar. Therefore, for the reasons recorded above, by\r\nsetting aside the impugned Judgment and order of the High Court, the\r\ndecree passed by the District Court deserves to be restored.&nbsp;</b><br></p>', 'cf254835eacde941be03a7fba3bba804.jpg', 'a9f9a063b0a50df6c3ba73417ded2b1d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-23', 1, '', '', '2021-11-24 03:51:05', '2021-11-24 03:51:05'),
(1178, 'MhVkrwu5XIlUnIgQejZWfHAG5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Except correcting arithmetical or clerical errors, arbitrator has no power to modify the award under Section 33 of the Arbitration and Conciliation Act. Supreme Court. ', '<p><b>Gyan Prakash Arya vs M/s Titan Industries Limited<br>Civil Appeal 6876 of 2021 decided on 22 November 2021<br>Justice M.R. Shah and Justice B.V. Nagarathna<br>Judgment&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2021/17722/17722_2021_43_1502_31439_Judgement_22-Nov-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/17722/17722_2021_43_1502_31439_Judgement_22-Nov-2021.pdf</a></span></b></p><p><b>12. The original award was passed considering the claim made by the\r\nclaimant as per its original claim and as per the statement of the claim\r\nmade and therefore subsequently allowing the application under Section\r\n33 of the 1996 Act to modify the original award in exercise of powers\r\nunder Section 33 of the 1996 Act is not sustainable. Only in a case of\r\narithmetical and/or clerical error, the award can be modified and such\r\nerrors only can be corrected. In the present case, it cannot be said that\r\nthere was any arithmetical and/or clerical error in the original award\r\npassed by the learned arbitrator. What was claimed by the original\r\nclaimant in the statement of claim was awarded. Therefore, the order\r\npassed by the learned arbitrator on an application filed under Section 33 of the 1996 Act and thereafter modifying the original award cannot be\r\nsustained. The order passed by the learned arbitrator in the application\r\nunder Section 33 of the 1996 Act is beyond the scope and ambit of\r\nSection 33 of the 1996 Act. Therefore, both, the City Civil Court as well\r\nas the High Court have committed a grave error in dismissing the\r\narbitration suit/appeal under Sections 34 and 37 of the 1996 Act\r\nrespectively. The modified award passed by the learned arbitrator\r\nallowing the application under Section 33 of the 1996 Act cannot be\r\nsustained and the same deserves to be quashed and set aside.\r\n</b></p><p><b>13. In view of the above and for the reasons stated above, the present\r\nappeal is allowed. The impugned judgment and orders passed by the\r\nHigh Court in an appeal under Section 37 of the 1996 Act and City Civil\r\nCourt in arbitration suit under Section 34 of the 1996 Act and the order\r\npassed by the learned arbitrator dated 14.1.2011 modifying the original\r\naward dated 04.12.2010 are hereby quashed and set aside.\r\nConsequently, the original award passed by the learned arbitrator dated\r\n04.12.2010 stands restored. However, in the facts and circumstances of\r\nthe case, there shall be no order as to costs.&nbsp;<br></b></p><p><b><br></b></p><p><br></p>', '00473a3ae3f9bd9ac516b12e52ff1f93.jpg', 'a08c5b80a16f11ea24cd095d53022704.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-23', 1, '', '', '2021-11-24 04:13:18', '2021-11-24 04:13:18');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1179, 'zFNe9UTEjleGuUkVTjU6M9WFt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Forcing a woman to bear with an unwanted intrusion on her body and endure the consequences is a violation of personal liberty guaranteed under Article 21\'\'. Karnataka High Court permits medical termination of pregnancy caused by rape on minor girl.', '<p><span style=\"font-weight: bolder;\">Kumari D (name withheld) vs The State of Karnataka and another <br></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Writ Petition 104344 of 2021 decided on 17 November 2021<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/421930/1/WP104344-21-17-11-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/421930/1/WP104344-21-17-11-2021.pdf</a></b></p><p><b>1. Kumari D., a minor girl aged 16 years has presented this petition through her mother seeking for  a direction to the 2nd respondent to medically terminate the pregnancy forthwith.</b></p><p><b>2. For the sake of protecting the privacy and confidentiality of the minor girl and her family, both her </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">name and her mother\'s name are not being stated and shall not be stated in the records which would be in the public domain.</b></p><p><b>3. It is the case of the petitioner that she was a victim of a sexual crime which was inflicted on her on 08.02.2021. In respect of this sexual crime, Crime No.142/2021 has been registered by the Sadalaga  Police Station for the offences under  Sections 376(2)(n), 366(A), 506, 34 of the Indian Penal Code  (for short ‘IPC’) and under Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’), against two persons who incidentally are a father and son duo.</b></p><p><b>5. However, it appears that the medical practitioner and the 2nd respondent were of the view that the pregnancy could not be terminated as the  outer limit of 24 weeks set down in Section 3 of the Medical Termination of Pregnancy Act, 1971  (hereinafter called as ‘the 1971 Act’) had passed.</b></p><p><b>6. The petitioner is therefore before this Court contending that she cannot be forced to carry the burden of crime and cannot be compelled to deliver a baby which has been conceived against her will. The petitioner is calling upon this Court to exercise its constitutional power under Article 226 of the Constitution of India and to direct the medical practitioner to terminate the pregnancy. </b></p><p><b>16. It is thus clear that the law creates a  statutory presumption of grave injury to the mental health of the pregnant woman if she alleges that the pregnancy was caused due to an alleged rape.</b></p><p><b>17. However, since the 1971 Act does not provide for termination of pregnancy after 24 weeks by medical practitioners even if it is alleged by the  pregnant woman to have been caused by rape, the 2nd  respondent has therefore refused to terminate the pregnancy.</b></p><p><b>20. It is therefore clear that the right of a woman to exercise her reproductive choice is a dimension of “personal liberty” as understood under Article 21 of the Constitution of India and she has a sacrosanct right to have her bodily integrity protected. The act of forcing a woman to bear with an unwanted intrusion on her body and endure the consequences of that intrusion would be a clear transgression of her inviolable fundamental right of “personal liberty” guaranteed under Article 21 of the Constitution.</b></p><p><b>21. In the instant case, the petitioner, who is aged just about 16 years is being forced to continue  with her pregnancy which has been caused because of   a crime perpetrated on her. It is to be borne in mind that a minor may not even know that she has become pregnant by the rape inflicted on her and may have become aware of the pregnancy only at a  late  stage due to visible physical changes on her body. In fact, the visible changes may also not manifest itself within 20 weeks and even if it does manifest itself, a minor girl may not understand it or may be scared of revealing  her state of affairs due to plain fear or possibility of certain social repercussions or also being held responsible for her status.</b></p><p><b>24. It cannot be in dispute that the statutory limitations imposed in a statute cannot be an impediment or a restriction on the exercise of Constitutional power of the High Courts. The exercise of this constitutional power would obviously be exercised rarely, sparingly and in exceptional circumstances and would obviously rest on the facts of each case.</b></p><p><b>35. The Pediatrician, who was a part of the Medical Board, has opined that it would be a case of high-risk pregnancy as the petitioner was a teenage mother and it would also pose a grave risk on the fetus. The Psychiatrist has noted that if the pregnancy is continued, the petitioner will develop anxiety and the extending anxiety could lead to a definite depression which would in turn have a bearing on the mental  health of the petitioner. He has also specifically observed that social problems arising out of the petitioner’s status would also have an affect on the mental health of the petitioner.</b></p><p><b>36. In my view, having regard to the circumstances explained above and the specific opinion rendered by the Medical Board, the petitioner has made out a case for issuance of a direction to terminate the pregnancy.</b></p><p><b>37. In the result, the writ petition is disposed off directing the 2nd respondent to ensure the medical termination of pregnancy of the petitioner-Kumari ‘D’, (the name of the petitioner is mentioned as ’D’ for the sake of confidential) in accordance with the provisions  of Medical Termination of Pregnancy  Act,  1971 forthwith having regard to the opinion rendered by the Medical Board.</b></p><p><b>A copy of the operative portion of this order be furnished to the learned HCGP forthwith.</b></p><div><br></div>', '3b265b9a18cea50c2ae19a50942ee2c2.jpg', '17147735e8320899326e9c71f603f879.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-24', 1, '', '', '2021-11-25 00:47:33', '2021-11-26 05:26:25'),
(1180, 'jjoS43xboLLLjxZUzvzawQ5h5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Recovery of Debts due to Banks and Financial Institutions Act, 1993. Section 5 of the Limitation Act is NOT applicable to appeal against order of Recovery Officer under Section 30 of the Act. Supreme Court ', '<p><b>Avneesh Chandan Gadgil & Anr vs Oriental Bank of Commerce & Ors.<br>Civil Appeal 6898 of 2021 decided on 24 November 2021<br>Justice M.R. Shah and Justice Sanjiv Khanna<br>J<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">udgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2016/17580/17580_2016_13_1501_31472_Judgement_24-Nov-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2016/17580/17580_2016_13_1501_31472_Judgement_24-Nov-2021.pdf</a></span></b></p><p><b>3. The short question, which is posed for consideration before this\r\nCourt is whether Section 5 of the Limitation Act shall be applicable to the\r\nappeal against the order of Recovery Officer under Section 30 of the Act,\r\n1993? <br></b></p><p><b>7. At the outset, it is required to be noted that the issue involved in\r\nthe present appeal is now not res integra in view of the direct decision of\r\nthis Court in the case of International Asset Reconstruction Company\r\nof India Limited Vs. Official Liquidator of Aldrich Pharmaceuticals\r\nLimited and Ors., (2017) 16 SCC 137. Dealing with the appeal under\r\nSection 30 of the Act, 1993 after 2000 amendment, it is held that Section\r\n5 of the limitation Act is specifically excluded so far as appeal under\r\nSection 30 of the Act, 1993 is concerned. While holding so, in\r\nparagraph 13, it is observed and held as under:- <br></b></p><p><b>“13. The RDB Act is a special law. The proceedings are\r\nbefore a statutory Tribunal. The scheme of the Act\r\nmanifestly provides that the legislature has provided for\r\napplication of the Limitation Act to original proceedings\r\nbefore the Tribunal under Section 19 only. The Appellate\r\nTribunal has been conferred the power to condone delay\r\nbeyond 45 days under Section 20(3) of the Act. The\r\nproceedings before the Recovery Officer are not before a\r\nTribunal. Section 24 is limited in its application to\r\nproceedings before the Tribunal originating under Section\r\n19 only. The exclusion of any provision for extension of\r\ntime by the Tribunal in preferring an appeal under Section\r\n30 of the Act makes it manifest that the legislative intent for exclusion was express. The application of Section 5 of\r\nthe Limitation Act by resort to Section 29(2) of the\r\nLimitation Act, 1963 therefore does not arise. The\r\nprescribed period of 30 days under Section 30(1) of the\r\nRDB Act for preferring an appeal against the order of the\r\nRecovery Officer therefore cannot be condoned by\r\napplication of Section 5 of the Limitation Act.”\r\n <br></b></p><p><b>9. Thus, as per the law laid down by this Court in the aforesaid case\r\nand even otherwise considering Section 30 of the Act, 1993, we are also\r\nof the view that Section 5 of the Limitation Act shall not be applicable to\r\nthe appeal against the order of Recovery Officer as provided under\r\nSection 30 of the Act, 1993. </b><br></p>', 'c1fe88f78f1eb68c14f242f851014ccf.jpeg', '953c4019fca62314933bb7006e72063a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-24', 1, '', '', '2021-11-25 02:31:43', '2021-11-25 02:32:39'),
(2751, 'qhP62q66ATPHhdLMUcCTX8cxa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal trial. Denying cross-examination violates a person\'s life and liberty which are not only fundamental rights but also basic human rights. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kattemane Ganesha Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 441 of 2015 decided on 21 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B. Veerappa and Justice Rajesh Rai K.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Criminal Appeal No.441/2015 is filed by the accused No.1 against the judgment of conviction and order of sentence dated 24.03.2015 passed in Sessions Case No.94/2002 on the file of the Principal District and Sessions Judge, Kodagu, Madikeri, convicting the him for the offences punishable under Sections 302, 506(ii), 341 r/w Section 34 of the Indian Penal Code and Section 27 of the Arms Act, 1959. Criminal Appeal No.1055/2015 is filed by the injured victim-K.G.Prema/P.W.3 against the order of acquittal dated 24.03.2015 passed in Sessions Case No.81/2003 on the file of the very same Court i.e., Principal District and Sessions Judge, Kodagu, Madikeri, acquitting accused Nos.1 to 15 for the offences punishable under Sections 341, 324, 427, 506 (ii) of the Indian Penal Code and Section 3 r/w Section 25(1B)(a) of the Indian Arms Act r/w Section 149 of the Indian Penal Code.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>In view of the aforesaid contentions of the learned counsel for the parties, the only point that arises for our consideration is: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>\"Whether the learned Sessions Judge is justified in ignoring the cross-examination portion of prosecution witnesses while passing the judgment in S.C.No.94/2002, when both S.C.Nos.94/2002 and 81/2003 arise out of common incident, as case and counter case, in the facts and circumstances of the present case?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>Phipson on Evidence (15th Edition, 2000, para 11-17, p 249) states: \"The object of cross-examination is of two fold-to weaken, qualify, or destroy the case of the opponent; and to establish the party\'s own case by means of his opponent\'s witnesses.\" The right of cross-examination not only is referable to Section 138 but is one of the principles of natural justice that evidence may not be read against a party until the same has not been subjected to cross-examination, or at least an opportunity has not been given for cross-examination. Section 138 impliedly lays down that the statement of a witness would be read as evidence against a party only if it had been tested on the anvil of cross-examination or opportunity was afforded for the purpose.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>The provision of cross-examination is not merely a technical rule of evidence; it is a rule of essential justice. It serves to prevent surprise at the trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party, on whose behalf the cross-examination is being made, comes to give and lead evidence by producing witnesses.      The party must be given a fair chance to cross-examine the witness. Our view is fortified by the dictum in the case of AEG Carapiet vs. Derderian reported in AIR 1961 Cal 359. Thereby, natural justice which is required, is denied. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>It is well settled  that, One is required to consider the entire evidence as a whole with the other evidence on record. Mere considering the examination-in-chief and not considering the cross-examination, cannot be considered as consideration of the evidence in its entirety. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>In view of the above, the point raised for consideration in the present Criminal Appeals is answered in the negative holding that the learned Sessions Judge is not justified in ignoring the cross-examination portion of prosecution witnesses while passing the judgment in S.C.No.94/2002, and the same has resulted in miscarriage of justice.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b> (i)<span style=\"white-space:pre\">	</span>Criminal Appeal Nos.441/2015 and 1055/2015 are hereby allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '604adeb9c959d497900ad26bde59505c.jpeg', 'af9ac8dd2c5f25b670b9300f08dfad1e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-03', 1, '', '', '2023-03-02 13:14:35', '2023-03-03 11:07:26'),
(1182, 'H8OYGaybxL9yyUXHy6pYzKnR7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court directs BBMP to issue Property Identification Number to unauthorised properties having \'B\' khata within BBMP area for property tax assessment. ', '<p><span style=\"font-weight: bolder;\">Madhusudhan Bhadri and another vs Bruhat Bangalore Mahanagara Palike and another <br>Writ Petition 54098 of 2018 decided on 12 November 2021<br>Judgment&nbsp;</span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/420442/1/WP54098-18-12-11-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/420442/1/WP54098-18-12-11-2021.pdf</a></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The petitioners in these writ petitions seek quashment of endorsements which place the properties of the petitioners in Form-B register and also seek consequential directions to place the properties of the petitioners in Form-A register.</b><br></p><p><b>In respect of property tax collected from the owner or occupier in respect of authorized property it has to be maintained in Form-A and un-authorised property it has to be maintained in Form-B.</b></p><p><b>What is an unauthorized property is also defined in the aforesaid amendment. An unauthorized property is a property wherein developments are carried out in categories enumerated in sub-rule (ii) which are unapproved and violated developments&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">formed in violation of Master Plan, Zoning Regulations or building Bye-laws&nbsp; and unapproved&nbsp; and&nbsp; non-violated developments also bear meaning in the Rules.</b></p><p><b>Approved and violated developments are the ones which are carried out after obtaining approval from the competent authority but constructed in violation of the Master Plan, Zoning Regulations and Building bye-laws. Unapproved and non- violated developments are those where development is carried out without obtaining prior approval from the competent authority but the development carried out is in accordance with the Master Plan, Zonal Regulations and Building Bye-laws.</b></p><p><b>10. Thus, a clear categorization of properties is&nbsp; brought out under the Rules. Notwithstanding the property being authorized or unauthorized, the property identification number&nbsp; is mandatorily to be assigned under sub-rule (2) of Rule 11.&nbsp;</b></p><p><b>11. Wherefore, the ground on which the endorsements are to be quashed is not available to the petitioners at this juncture. However, the BBMP will have to now assess the properties of the petitioners if they would come within the explanation rendered in Rule 11 as to whether it is an authorized property or an unauthorized property for the entry to be made in the respective registers in terms of Rule 11. The property whether it is authorized or unauthorized, a property identification number&nbsp; will have to be given.&nbsp;</b></p><p><b>In these petitions the properties of the petitioners are not given property identification numbers (PID)&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which the BBMP will have to now carry out in terms of the applications given by the petitioners.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">BBMP shall issue Property Identification Number to the subject properties notwithstanding the fact whether they are placed in Form-A or Form-B registers, within four weeks from the date of receipt&nbsp; of a copy the order, if not already issued.</b><br></p>', '434d0334a6e64756d5b94c653e681998.jpg', '83599b9ca9d0073dd5e368901953290b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-25', 1, '', '', '2021-11-26 03:34:05', '2021-11-26 03:34:05'),
(1183, 'u3eikpmdPLfd1UK1BUwRiDb7S', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'COFEPOSA Act, 1977. Propensity and potentiality to engage in the offence is a relevant factor while considering the validity of a detention order under the Act. Karnataka High Court. ', '<p><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Asses Punjee Kaur Kochhar vs The Union of India and others. <br>Writ Petition Habeus Corpus 75 of 2021 decided on 10 November 2021<br>Justice Alok Aradhe and Justice Anand Ramanath Hegde</span></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In this petition, petitioner who is the sister of Amanpuneet Singh Kohli  seeks quashment of order of detention dated 23.02.2021 passed under the provisions </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 </b><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></p><p><b>11. As far as grievance of the detenue that non supply of translated documents of Kannada and Marathi language is concerned, the said documents are Annexures to the mahazar dated 02.12.2020 which was  </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">been recorded in English and the context of the rent agreement, which is in Marathi Language has been spelt out in the mahazar. The documents written in Kannada language were written at the branch address of M/s Sun Vista Trading. The address of the aforesaid firm has been found to be fake during the course of investigation. The documents are Annexures to the mahazar which has been recorded in English Language. The detenue has submitted a representation which runs into 27 pages. Therefore, non supply of the aforesaid documents, the gist of which was already provided to the detenue does not result in vitiating the order of detention.</b></p><p><b>12. The order of detention as well as the grounds of detention had been issued by the detaining authority after recording subjective satisfaction which has been elaborated in grounds of detention. Therefore, the order of detention does not suffer from the vice of non application of mind. </b></p><p><b>Thus, the detenue has the propensity and potentiality to engage in the offences and despite service of summons has indulged in offences.</b></p><p><b>For the aforementioned reasons, we do not find any ground to interfere with the order of detention. In the result, the petition fails and is hereby dismissed.</b></p><div><br></div>', '858eab7dab1f220c7d607a77a7e63e9c.JPG', 'd68b69777e3613b310ff2f649442576b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-26', 1, '', '', '2021-11-26 17:28:40', '2021-11-26 17:36:25'),
(1184, 'xwzAZD9kpKK2NF7fYNWrVsevA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bar under Section 34 of SARFAESI Act can NOT got out by simply pleading fraud in a suit without making precise and specific details of the charges. Supreme Court.', '<p><span style=\"font-weight: bolder;\">Electrosteel Castings Limited vs&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">UV Asset Reconstruction<br></span><b>Civil Appeal 6669 of 2021 decided on 26 November 2021<br>Justice M.R. Shah and Justice Sanjiv Khanna<br>Judgment Link:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"https://main.sci.gov.in/supremecourt/2021/19593/19593_2021_43_1501_31592_Judgement_26-Nov-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/19593/19593_2021_43_1501_31592_Judgement_26-Nov-2021.pdf</a></b></p><p><b>7.1 It is the case on behalf of the plaintiff – appellant herein that in the plaint there are allegations of the ‘fraud’ with respect to the assignment agreement dated 30.06.2018 and it is the case&nbsp; &nbsp;on&nbsp; &nbsp;behalf&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;plaintiff&nbsp; &nbsp;–&nbsp; &nbsp;appellant&nbsp; &nbsp;herein&nbsp; &nbsp;that assignment agreement is ‘fraudulent’ in as much as after the full payment as per the approved resolution plan under the IBC and the original corporate debtor is discharged, there shall not be any debt by the plaintiff – appellant herein as a guarantor&nbsp; &nbsp;and&nbsp; &nbsp;therefore&nbsp; &nbsp;Assignment&nbsp; &nbsp;deed&nbsp; &nbsp;is&nbsp; &nbsp;fraudulent. Therefore, it is the case on behalf of the plaintiff – appellant herein that the suit in which there are allegations of ‘fraud’ with respect to the assignment deed shall be maintainable and the bar under Section 34 of SARFAESI Act shall not be applicable.&nbsp;&nbsp;</b></p><p><b>7.2 However, it is required to be noted that except the words used ‘fraud’/’fraudulent’ there are no specific particulars pleaded with respect to the ‘fraud’. It appears that by a clever drafting and using the words ‘fraud’/’fraudulent’ without any specific particulars with respect to the ‘fraud’, the plaintiff – appellant herein intends to get out of the bar under Section 34 of the SARFAESI Act and wants the suit to be maintainable. As per the&nbsp; settled&nbsp; &nbsp;preposition&nbsp; &nbsp;of&nbsp; &nbsp;law&nbsp; &nbsp;mere mentioning and using the word ‘fraud’/’fraudulent’&nbsp; is not sufficient&nbsp; to satisfy the&nbsp; test of&nbsp; ‘fraud’. As per the&nbsp; settled preposition of law such a pleading/using the word ‘fraud’/ ‘fraudulent’&nbsp; without&nbsp; &nbsp;any&nbsp; &nbsp;material&nbsp; particulars&nbsp; &nbsp;would not tantamount to pleading of ‘fraud’.&nbsp;&nbsp;</b></p><p><b>7.3....a litigant who prefers allegation of fraud or other improper conduct must place on record precise and specific details of these charges. Even as per Order VI Rule 4 in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, particulars shall be stated in the pleading.</b></p><p><b>8. Having considered the pleadings and averments in the suit more particularly the use of word ‘fraud’ even considering the case on behalf of the plaintiff, we find that the allegations of ‘fraud’ are made without any particulars and only with a view to get out of the bar under Section 34 of the SARFAESI Act and by such a clever drafting the plaintiff intends to bring&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the suit maintainable despite the bar under Section 34 of the SARFAESI Act, which is not permissible at all and which cannot be approved. Even otherwise it is required to be noted that it is the case on behalf of the plaintiff – appellant herein that in view of the approved resolution plan under IBC and thereafter&nbsp; &nbsp;the&nbsp; &nbsp;original&nbsp; &nbsp;corporate&nbsp; &nbsp;debtor&nbsp; &nbsp;being&nbsp; &nbsp;discharged there shall not be any debt so far as the plaintiff – appellant herein is concerned and therefore the assignment deed can be said to be ‘fraudulent’.&nbsp; The aforesaid cannot be accepted. By&nbsp; &nbsp;that&nbsp; &nbsp;itself&nbsp; &nbsp;the&nbsp; &nbsp;assignment&nbsp; &nbsp;deed&nbsp; &nbsp;cannot&nbsp; &nbsp;be&nbsp; &nbsp;said&nbsp; &nbsp;to&nbsp; &nbsp;be ‘fraudulent’.&nbsp; &nbsp;In&nbsp; &nbsp;any&nbsp; &nbsp;case,&nbsp; &nbsp;whether&nbsp; &nbsp;there&nbsp; &nbsp;shall&nbsp; &nbsp;be&nbsp; &nbsp;legally enforceable debt so far as the plaintiff – appellant herein is concerned even after the approved resolution plan against the corporate debtor still there shall be the liability of the plaintiff&nbsp; &nbsp;and/or&nbsp; &nbsp;the&nbsp; &nbsp;assignee&nbsp; &nbsp;can&nbsp; &nbsp;be&nbsp; &nbsp;said&nbsp; &nbsp;to&nbsp; &nbsp;be&nbsp; &nbsp;secured creditor and/or whether any amount is due and payable by the plaintiff, are all questions which are required to be dealt with and considered by the DRT in the proceedings initiated under the SARFAESI Act. It is required to be noted that as such in the present case the assignee has already initiated the proceedings under Section 13 which can be challenged by the plaintiff – appellant herein by way of application under Section 17 of the SARFAESI Act before the DRT on whatever the legally available defences which may be available to it. We are of the firm opinion that the suit filed by the plaintiff – appellant herein was absolutely not maintainable in view of the bar contained under Section 34 of the SARFAESI Act. Therefore, as such the courts below have not committed any error in rejecting the plaint/dismissing the suit in view of the bar under Section 34 of the SARFAESI Act.&nbsp;</b></p>', 'e5787a306d5d0f8d7a2f0bdae318d86a.jpg', 'ecb85dbac5c5af9f2fa66c4ccfd681bd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-27', 1, '', '', '2021-11-27 19:20:23', '2021-11-27 19:20:23'),
(1185, 'FMOXgQFMKCj2lgPR3umqQJsRz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Open Places (Prevention of Disfigurement) Act, 1981. Proceedings under the Act can NOT be initiated unless the area in question is notified under the Act. ', '<p><span style=\"font-weight: bolder;\">Hanmagouda and others vs The State of Karnataka <br></span><b>Criminal Petition 200377 of 2019 decided on 26 November 2021<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/422263/1/CRLP200377-19-26-11-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/422263/1/CRLP200377-19-26-11-2021.pdf</a></b><b><br></b></p><p><b>2. This petition is filed under Section 482 of Cr.P.C., praying this Court to quash the order of the Civil Judge and JMFC, Muddebihal, dated 13.07.2018 passed in C.C.No.167/2018 (Crime No.107/2018 of Muddebihal Police Station) taking cognizance against the petitioners </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for the offences punishable under Section 171H of IPC and Section 3 of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981. </b></p><p><b>Reading of Section 1(2)(i) of the Act makes it clear that the Act is applicable for the cities viz., Bangalore, Mysore, Hubli-Dharwar, Mangalore and Belgaum constituted or continued under the Karnataka Municipal Corporation Act, 1976 or under any other law, on the fifth day of May, 1981 and Section (1)(2)(ii) of the Act </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">says that the same come into force in the municipalities, notified areas, sanitary boards, constituted or continued under the Karnataka Municipalities Act, 1964 or under any other law, or in any other local area, on such date, as the State Government may by notification appoint and different dates may be appointed in respect of different areas.</b></p><p><b>7. But, no such Notification was issued in respect of Muddebihal. The Notification was issued on 09.07.1991 vide Karnataka Gazette dated 08.08.1991 including Gulbarga, apart from the above cities. But, no other notifications are issued. When such being  the facts and circumstances of the case, unless the Act is applicable to particular city and municipal area, the initiation of proceedings under the said Act is unsustainable under law. This Court in an unreported order passed in Criminal Petition No.505/2017 along with connected matters dated 20.06.2018 also </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">considered similar issue and observed that no notification was issued particularly in respect of respective municipal area and quashed the initiation of proceedings invoking the provisions of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The proceedings initiated against the petitioners herein for the offences punishable under Sections 171H of IPC and Section 3 of the Karnataka Open Places (Prevention of Disfigurement) Act 1981 and taking of cognizance by the learned Magistrate vide order dated 13.07.2018 in C.C.No.167/2018 is hereby quashed.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b> </b></p><p><br></p>', '49564ca24f5d9d82485f17294f3e0c18.jpg', '43f33681ce9c319153ab9a1ce29ac03e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-29', 1, '', '', '2021-11-30 01:32:38', '2021-11-30 01:38:12'),
(1186, 'YFv8phmqvCxgeTdTFg8T1xpso', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Disruption of tender process through Public Interest Litigation as a matter of routine can hardly be the objective of constitutional review. Supreme Court. ', '<p><b>The Vice Chairman &amp; Managing Director, City and Industrial Development Corporation of Maharashtra Ltd and another vs Shishir Reality Private Limited and others.&nbsp;</b></p><p><b>Civil Appeal 3956-3957 of 2017 decided on 29 November 2021</b></p><p><b>Chief Justice N.V.Ramana, Justice Vineet Saran and Justice Surya Kant&nbsp;</b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2014/6862/6862_2014_31_1501_31723_Judgement_29-Nov-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2014/6862/6862_2014_31_1501_31723_Judgement_29-Nov-2021.pdf</a></b></p><p><b>30. These&nbsp; &nbsp;principles&nbsp; &nbsp;acquire&nbsp; &nbsp;importance&nbsp; &nbsp;as&nbsp; &nbsp;the&nbsp; &nbsp;efficacy&nbsp; &nbsp;of commercial activities in the public sector increases greatly. It appears that public interest litigation has opened a large window to entertain any tender, regardless of scale, which are now sought to be challenged as a matter of routine. Such disruption&nbsp; could&nbsp; hardly&nbsp; have been the&nbsp; objective of expanding the need of Constitutional Review. Close scrutiny of&nbsp; &nbsp;minute&nbsp; &nbsp;details,&nbsp; &nbsp;contrary&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;view&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;tendering authority, makes execution of contracts in the public sector a cumbersome exercise.&nbsp; Often, it is the case that parties entertain the idea of a long­drawn­out litigation at the very threshold&nbsp; &nbsp;itself.&nbsp; &nbsp;The&nbsp; &nbsp;purpose&nbsp; &nbsp;of&nbsp; &nbsp;imbibing&nbsp; &nbsp;the&nbsp; &nbsp;spirit&nbsp; &nbsp;of competition in a process such as that of the bidding process, is lost in this meandering exercise and delays suffered due to pending litigation. This causes great disadvantage to the government&nbsp; &nbsp;and&nbsp; &nbsp;public&nbsp; &nbsp;sector&nbsp; &nbsp;in&nbsp; &nbsp;general.&nbsp; &nbsp;This&nbsp; &nbsp;Court,&nbsp; &nbsp;in appropriate&nbsp; &nbsp;cases&nbsp; &nbsp;while&nbsp; &nbsp;interpreting&nbsp; &nbsp;the&nbsp; &nbsp;contract,&nbsp; &nbsp;can restrict&nbsp; &nbsp;the&nbsp; &nbsp;review&nbsp; &nbsp;mechanism&nbsp; &nbsp;by&nbsp; &nbsp;not&nbsp; &nbsp;inuring&nbsp; &nbsp;to&nbsp; &nbsp;the interpretation&nbsp; &nbsp;so&nbsp; &nbsp;provided&nbsp; &nbsp;by&nbsp; &nbsp;third&nbsp; &nbsp;parties&nbsp; &nbsp;or&nbsp; &nbsp;parties competing&nbsp; &nbsp;for&nbsp; &nbsp;the&nbsp; &nbsp;tender,&nbsp; &nbsp;unless&nbsp; &nbsp;the&nbsp; &nbsp;impugned interpretation is shown to be gross abuse of law. B. S. N Joshi &amp; sons Ltd. v. Nair Coal Services Ltd., (2006) 11 SCC 548&nbsp; The object of judicial review cannot be that in every contract where some parties lose out, a second opportunity is provided to such parties to pick holes so as to disqualify successful parties, on grounds which even the party floating the tender find to be without merit. With this brief background on the standard&nbsp; &nbsp;of&nbsp; &nbsp;judicial&nbsp; &nbsp;review,&nbsp; &nbsp;we&nbsp; &nbsp;may&nbsp; &nbsp;analyze&nbsp; &nbsp;the&nbsp; case&nbsp; &nbsp;at hand.&nbsp;</b></p><p><b>54. When a contract is being evaluated, the mere possibility of more money in the public coffers, does not in itself serve public interest. A blanket claim by the State claiming loss of public&nbsp; &nbsp;money&nbsp; &nbsp;cannot&nbsp; &nbsp;be&nbsp; &nbsp;used&nbsp; &nbsp;to&nbsp; &nbsp;forgo&nbsp; &nbsp;contractual obligations, especially when it is not based on any evidence or&nbsp; &nbsp;examination.&nbsp; &nbsp;The&nbsp; &nbsp;larger&nbsp; &nbsp;public&nbsp; &nbsp;interest&nbsp; &nbsp;of&nbsp; &nbsp;upholding contracts and the fairness of public authorities is also in play. Courts need to have a broader understanding of public interest, while reviewing such contracts.</b></p><p><b>69. The&nbsp; &nbsp;constitutional&nbsp; &nbsp;guarantee&nbsp; &nbsp;against&nbsp; &nbsp;arbitrariness&nbsp; &nbsp;as provided under Article 14, demands the State to act in a fair and&nbsp; &nbsp;reasonable&nbsp; &nbsp;manner&nbsp; &nbsp;unless&nbsp; &nbsp;public&nbsp; &nbsp;interest&nbsp; &nbsp;demands otherwise. However, the degree of compromise of any private legitimate interest must correspond proportionately to the public interest, so claimed.</b></p><p><b>70. At this juncture, it is pertinent to remember that, by merely using grounds of public interest or loss to the treasury, the successor&nbsp; &nbsp;public&nbsp; &nbsp;authority&nbsp; &nbsp;cannot&nbsp; &nbsp;undo&nbsp; &nbsp;the&nbsp; &nbsp;work undertaken by the previous authority. Such a claim must be proven using material facts, evidence and figures. If it were otherwise, then there will remain no sanctity in the words and undertaking of the Government. Businessmen will be hesitant&nbsp; &nbsp;to&nbsp; &nbsp;enter&nbsp; &nbsp;Government&nbsp; &nbsp;contract&nbsp; &nbsp;or&nbsp; &nbsp;make&nbsp; &nbsp;any investment in furtherance of the same. Such a practice is counter­productive&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;economy&nbsp; &nbsp;and&nbsp; &nbsp;the&nbsp; &nbsp;business environment in general.&nbsp;</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '12ebb1592d4c364e7cca6d1dcdad6686.JPG', 'dc7091cdf3df48d3bb690690fae9867c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-29', 1, '', '', '2021-11-30 03:16:30', '2021-11-30 03:16:30'),
(1187, 'bQCRMuCMQabEMMxnmr4fwAgdc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Government contracts. Mere possibility of more money in the public coffers does not in itself serve public interest. Blanket claim of loss of public money cannot be used to forgo contractual obligations. Supreme Court. ', '<p><b>The Vice Chairman & Managing Director, City and Industrial Development Corporation of Maharashtra Ltd and another vs Shishir Reality Private Limited and others. </b></p><p><b>Civil Appeal 3956-3957 of 2017 decided on 29 November 2021</b></p><p><b>Chief Justice N.V.Ramana, Justice Vineet Saran and Justice Surya Kant </b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2014/6862/6862_2014_31_1501_31723_Judgement_29-Nov-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2014/6862/6862_2014_31_1501_31723_Judgement_29-Nov-2021.pdf</a></b></p><p><b>30. These   principles   acquire   importance   as   the   efficacy   of commercial activities in the public sector increases greatly. It appears that public interest litigation has opened a large window to entertain any tender, regardless of scale, which are now sought to be challenged as a matter of routine. Such disruption  could  hardly  have been the  objective of expanding the need of Constitutional Review. Close scrutiny of   minute   details,   contrary   to   the   view   of   the   tendering authority, makes execution of contracts in the public sector a cumbersome exercise.  Often, it is the case that parties entertain the idea of a long­drawn­out litigation at the very threshold   itself.   The   purpose   of   imbibing   the   spirit   of competition in a process such as that of the bidding process, is lost in this meandering exercise and delays suffered due to pending litigation. This causes great disadvantage to the government   and   public   sector   in   general.   This   Court,   in appropriate   cases   while   interpreting   the   contract,   can restrict   the   review   mechanism   by   not   inuring   to   the interpretation   so   provided   by   third   parties   or   parties competing   for   the   tender,   unless   the   impugned interpretation is shown to be gross abuse of law. B. S. N Joshi & sons Ltd. v. Nair Coal Services Ltd., (2006) 11 SCC 548  The object of judicial review cannot be that in every contract where some parties lose out, a second opportunity is provided to such parties to pick holes so as to disqualify successful parties, on grounds which even the party floating the tender find to be without merit. With this brief background on the standard   of   judicial   review,   we   may   analyze   the  case   at hand. </b></p><p><b>54. When a contract is being evaluated, the mere possibility of more money in the public coffers, does not in itself serve public interest. A blanket claim by the State claiming loss of public   money   cannot   be   used   to   forgo   contractual obligations, especially when it is not based on any evidence or   examination.   The   larger   public   interest   of  upholding contracts and the fairness of public authorities is also in play. Courts need to have a broader understanding of public interest, while reviewing such contracts.</b></p><p><b>69. The   constitutional   guarantee   against   arbitrariness   as provided under Article 14, demands the State to act in a fair and   reasonable   manner   unless   public   interest   demands otherwise. However, the degree of compromise of any private legitimate interest must correspond proportionately to the public interest, so claimed.</b></p><p><b>70. At this juncture, it is pertinent to remember that, by merely using grounds of public interest or loss to the treasury, the successor   public   authority   cannot   undo   the   work undertaken by the previous authority. Such a claim must be proven using material facts, evidence and figures. If it were otherwise, then there will remain no sanctity in the words and undertaking of the Government. Businessmen will be hesitant   to   enter   Government   contract   or   make   any investment in furtherance of the same. Such a practice is counter­productive   to   the   economy   and   the   business environment in general. </b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '57c47e73cf3302945db8ac4798239e54.JPG', '853e18ed87de97fa05396676f5395fb5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-29', 1, '', '', '2021-11-30 03:36:56', '2021-11-30 03:37:50'),
(1188, 'Kwz77ocwzzgN2cZGxlr2ppJQt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Trademark infringement. Merely because the registered trademark is the name of celebrated deity/God, it cannot be held that the trademark is not entitled for protection against infringement. Karnataka High Court.  ', '<p><b>M/s. Sri Krishna Sweets Pvt Ltd vs M/s. Sri Krishna Sweets<br>Miscellaneous First Appeal 2290 of 2021 decided on 17 November 2021</b></p><p><b>19. Thus, the above cases makes it clear that, merely because a registered trademark includes the name of the celebrated deity, by that itself, it cannot be held that the registered holder of that trademark is not entitled for protection in the form of injunction against the infringement of his trademark.&nbsp;</b></p><p><br></p>', '85889d93e670fbcd1b73fdb1b7c2360f.jpg', 'a6ec51b446cee831280cead964761c93.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-29', 1, '', '', '2021-11-30 04:55:02', '2021-11-30 04:55:02'),
(1189, '8U7bzePVmbi9vlRDztC4qI18r', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Medical negligence. In this era of super specialization, the doctor who performed surgery alone cannot be responsible for different aspects of treatment required and given to patient. Supreme Court ', '<p><b>Bombay Hospital and Medical Research Centre vs Asha Jaiswal and others. <br>Civil Appeal 1658 of 2010 decided on 30 November 2021<br>Justice Hemant Gupta and Justice V. Ramasubramanian<br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2010/4109/4109_2010_11_1501_31713_Judgement_30-Nov-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2010/4109/4109_2010_11_1501_31713_Judgement_30-Nov-2021.pdf</a></b></p><p><b>25.....In the present era of superspecialization, one doctor is not a solution for all problems of a\r\npatient. Each problem is dealt with by an expert in the concerned\r\nfield and that is what is apparent from the medical record. The\r\nstand of the complainant is that since surgery was performed by a\r\ndoctor, he alone would be responsible for different aspects of the\r\ntreatment required and given to the patient. However, it is an\r\nincorrect assumption to be made. <br></b></p><p><b>26. It is a case where the patient was in serious condition impending\r\ngangrene even before admission to the Hospital but even after\r\nsurgery and re-exploration, if the patient does not survive, the fault\r\ncannot be fastened on the doctors as a case of medical negligence.\r\nIt is too much to expect from a doctor to remain on the bed side of\r\nthe patient throughout his stay in the hospital which was being\r\nexpected by the complainant here. A doctor is expected to provide\r\nreasonable care which is not proved to be lacking in any manner in\r\nthe present case.<br></b></p><p><b>29. In Martin F. D\'Souza v. Mohd. Ishfaq (2009) 3 SCC 1, this court observed that\r\nthe doctor cannot be held liable for medical negligence by applying\r\nthe doctrine of res ipsa loquitur for the reason that a patient has not\r\nfavourably responded to a treatment given by a doctor or a surgery\r\nhas failed. There is a tendency to blame the doctor when a patient\r\ndies or suffers some mishap. This is an intolerant conduct of\r\nthe family members to not accept the death in such cases. The increased cases of manhandling of medical professionals who worked\r\nday and night without their comfort has been very well seen in this\r\npandemic. </b></p><p><b>30. In case of medical negligence, this Court in a celebrated judgment\r\nreported as Jacob Mathew v. State of Punjab and Anr.\r\n(2005) 6 SCC 1 held\r\nthat simple lack of care, an error of judgment or an accident, is not\r\na proof of negligence on the part of a medical professional. </b></p><p><b>31. In another judgment reported as Arun Kumar Manglik v. Chirayu\r\nHealth and Medicare Private Limited and Anr.\r\n(2019) 7 SCC 401, this Court\r\nheld that the standard of care as enunciated in Bolam case must\r\nevolve in consonance with its subsequent interpretation by English\r\nand Indian Courts. The threshold to prove unreasonableness is set\r\nwith due regard to the risks associated with medical treatment and\r\nthe conditions under which medical professionals’ function. <br></b></p><p><b>32. In C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam (2009) 7 SCC 130, this\r\nCourt held that the Commission ought not to presume that the allegations in the complaint are inviolable truth even though they remained unsupported by any evidence.<br></b></p><p><b>34. Recently, this Court in a judgment reported as Dr. Harish Kumar\r\nKhurana v. Joginder Singh & Others\r\n(2021) SCC Online SC 673\r\n held that hospital and the\r\ndoctors are required to exercise sufficient care in treating the patient in all circumstances. However, in an unfortunate case, death\r\nmay occur. It is necessary that sufficient material or medical evidence should be available before the adjudicating authority to arrive at the conclusion that death is due to medical negligence. Every\r\ndeath of a patient cannot on the face of it be considered to be medical negligence.</b></p><p> <b><br></b></p><p><br></p>', 'fc6f9036ac2fb950f32cc75649df30f8.JPG', '0518b9b6687c9c45729f62d3e8e9a7fb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-30', 1, '', '', '2021-12-01 02:26:14', '2021-12-01 02:32:40');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1190, 'GROiQvYD09zvRVKuUX1yxjPUR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Summons to produce documents or other thing under Section 91 can NOT be issued to authorities who are protected under law from divulging any information obtained during seizure etc. Karnataka High Court.   ', '<p><span style=\"font-weight: bolder;\">Director General of Income Tax (Investigation) and others vs Deputy Commissioner of Police Bengaluru - East Division&nbsp;<br></span><b>Writ Petition 29697 of 2017 decided on 25 November 2021<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/423229/1/WP29697-17-25-11-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/423229/1/WP29697-17-25-11-2021.pdf</a></b><b><br></b></p><p><b>The petitioners are before this Court calling in question proceedings in FIR dated 28.02.2017 in Crime No.52 of 2017, notice dated 13.04.2017 issued under Section 91 of the Cr.P.C. and a letter dated 20.06.2017.</b></p><p><b>16.<span style=\"white-space:pre\">	</span>Admittedly, search and seizure is performed by the petitioners under the Act. The bar of divulging any information&nbsp; or any document taken into custody during the seizure is available under Section 138(2) of the Act. In the&nbsp; teeth of the&nbsp; said provision in the Act, the notice issued by the Police, on the face of it, would be contrary to law. The notice that the Police issued on 13.04.2017, is on the strength of the FIR for the&nbsp; alleged offences as aforesaid. Since the&nbsp; notice&nbsp; emanates pursuant to registration of the FIR, the registration of the FIR itself was bad in law, as recording of FIR against the petitioners, who are officers of Government and have performed certain acts of search and seizure under Section 132 of the Act, cannot be brought to prosecution particularly, for the offences alleged in the FIR. The complaint ought not to have been entertained by&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the 3rd respondent/Police and registration of FIR ought not to have been done in the light of the aforesaid provisions of the Act.</b></p><p><b>17.<span style=\"white-space:pre\">	</span>It is rather shocking that what the complainant wants in the complaint is, the diary and what the Police want to secure from the petitioners is the diary and no other document is required by the Police for investigation of the allegations of offences, which run into 15 in number, but only the diary. It cannot but be held that the 3rd respondent was acting at the behest of the complainant to secure the diary by&nbsp; invoking&nbsp; Section 91 of the Cr.P.C., thereby summoning the&nbsp; diary. Since the FIR could not have been registered against the petitioners in view of the specific bar under Section 293 of the Act, the aftermath of such registration would be rendered without authority of law.</b></p><p><b>18.<span style=\"white-space:pre\">	</span>The submission of the learned senior counsel appearing for the second respondent / complainant is that, the writ petition is not maintainable as nobody is named in the FIR and challenging the said FIR by the petitioners in particular, would not be maintainable. If the act of registration of the FIR had stopped at that point, the submission of the learned senior counsel would become acceptable. The ulterior motive in registration of FIR is seen in the subsequent proceedings. Police Notice is issued under Section 91 of the Cr.P.C. to the 1st petitioner wherein, it is indicated that Crime No.52 of 2017 is pending consideration. The second communication is issued on 20.06.2017, which again discloses offences punishable as aforesaid in Crime No.52 of 2017. Therefore, what the Police want to investigate is the act of search and seizure done by the petitioners, communication and police notice that are sent to the petitioners. Therefore, it cannot be urged by the learned senior counsel that the FIR names nobody and the writ petition would not be maintainable. This submission deserves to&nbsp; be&nbsp; rejected and is rejected.</b></p><p><b>The FIR dated 28.02.2017, registered in Crime No.52 of 2017, before the 3rd respondent and all further proceedings taken up pursuant thereto stand quashed.</b></p>', '3c783ddba06e08e5a5590ca08899683e.jpg', 'f6ed0c102df563c61ed899088cd8d9de.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-30', 1, '', '', '2021-12-01 02:54:26', '2021-12-01 02:54:26'),
(1191, 'ejiAhayQLN8HgvWxIVL15tEjC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Power of High Court to order further investigation of a crime at the instance of representatives of the deceased. Karnataka High Court discusses parameters of consideration. ', '<p><span style=\"font-weight: bolder;\">Bhaskar Rao Nimbalkar vs State of Karnataka&nbsp;<br>Writ Petition 21794 of 2017 decided on 25 November 2021<br>Judgment Link:&nbsp;</span><b><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/422267/1/RFA666-16-12-11-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/422267/1/RFA666-16-12-11-2021.pdf</a></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The petitioner in this writ petition seeks a direction by issuance of writ in the nature of mandamus to call for&nbsp; the&nbsp; records in Crime No.177 of 2016 and direct reinvestigation into the matter at the hands of either Central Bureau of Investigation or Criminal Investigation Department.</b></p><p><b>7. Before embarking upon consideration of the plea of the petitioner for further investigation into the matter, I deem it appropriate to notice the law laid down by the Apex Court with regard to further investigation of a crime and the stage at which&nbsp; such further investigation could be ordered at the instance of representatives of the&nbsp; deceased.&nbsp;</b></p><p><b>Dayal Singh vs State of Uttaranchal (2012) 8 SCC 263<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762&nbsp;<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Pooja Pal vs Union of India (2016) 3 SCC 135</b></p><p><b>8. The Apex Court in the afore-extracted judgments has laid down the parameters of consideration of the issue while directing reinvestigation. It is also indicated that the Court considering the plea for reinvestigation should clearly narrate on going through the material on record as to the grounds for re- investigation. Therefore, it becomes imperative to notice the facts&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and grounds on which the petitioner has sought re-investigation into the matter and its tenability.</b></p><p><b>14. In the teeth of the entire aforesaid facts the investigation ought to have been conducted in its proper perspective. Therefore, in the light of the judgments of the Apex Court as afore-extracted and the facts with regard to the dearth&nbsp; in the investigation, I deem it appropriate to direct further investigation to be conducted in the case at hand and a supplementary report to be placed before the Criminal Court hearing the matter.</b></p><div><br></div>', 'd7eb135a621685ccf8337ebe128d8b7f.jpg', 'ccfa2eb61a17594408f30f3fc2093c59.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-11-30', 1, '', '', '2021-12-01 03:17:00', '2021-12-01 03:17:00'),
(1192, 'OIOnLLPInfFtMM1azqpoQN1bB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Withdrawal of suit. There is no concept of trial and error in a litigation. A litigant cannot after having failed in the suit, be permitted to file a fresh suit by covering up the lacunae pointed out. Karnataka High Court.', '<p><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Vinodha and others vs </span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Kempamma and others&nbsp;<br></span><b>Civil Revision Petition 335 of 2019 decided on 28 September 2021<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1. Whether the suit could be withdrawn at the appellate stage after the dismissal of the suit on the ground that the Plaintiff wishes to amend the plaint inserting new pleadings, seeking for additional reliefs as also for the reason that certain documents which ought to have been produced have not been produced during the course of the evidence in the said suit by invoking the provision under Order XXIII Rule 1 of CPC?</b><br></p><p><b>14. A perusal of the above provision (Order XXIII Rule 1 of CPC) more particularly sub rule 3 thereof would indicate that where the Court is satisfied that a suit must fail by reason of some formal defect or there are sufficient grounds for allowing the Plaintiff to institute a fresh suit for&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the same subject matter of a suit or part of a claim, the Court could permit for withdrawal of such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of the suit.</b></p><p><b>15. What is to be seen is as to whether the requirements of Order XXIII Rule 1 (3) of CPC are satisfied in the present suit.</b></p><p><b>16. The first ground of the suit failing by reason of formal defect is not at all attracted in the present case. In my considered opinion, the suit failed even according to Plaintiff due to non-production of certified copies of certain judgments and due to not seeking certain reliefs, since there are no pleadings in relation thereto. These cannot said to be formal defects.</b></p><p><b>17. The formal defect as contemplated under Order XXIII Rule 1(3)(a) of CPC is one, which is formal in nature and not substantive relating to the pleadings&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">like non issuance of notices under Section 80 of&nbsp; CPC and under Section 482 of the Karnataka Municipal Corporations Act, 1976.</b></p><p><b>18. Coming to the second requirement under Order XXIII Rule 1(3)(b) of CPC, the Plaintiff is required to make out a sufficient ground for allowing the Plaintiff to institute a fresh suit as regards the subject matter of a suit.</b></p><p><b>19. In the present case, the only grounds which are sought to be made out is that the certified copies of the judgments could not be produced and further that the Plaintiff intends to amend the plaint by inserting new pleadings and new prayer. Such grounds, in my considered opinion cannot be taken up at the stage of appeal. Essentially, what the Plaintiff has sought to do is to re-agitate the matter having failed in the suit by now contending that the Plaintiff is interested in producing certain documents and/or amend the pleadings, this would&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not amount to sufficient ground for allowing the Plaintiff to institute a fresh suit.</b></p><p><b>20. A litigant cannot after having failed in the suit, be permitted to file a fresh suit by covering up the lacunae pointed out. There is no concept of trial and error in a litigation. A litigant is required to place all the facts and documents on record, if by inadvertence some facts or documents are not placed on record, there are suitable provisions in the CPC that permit amendment of pleadings and production of documents.</b></p><p><b>In view thereof the above, the petition stands dismissed at the stage of admission itself.<span style=\"white-space:pre\">	</span></b></p>', '35724ff5bc0ffa865222247e8dafbf17.jpeg', '032c11d1e76fd8019aac471f47c93591.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-01', 1, '', '', '2021-12-02 02:41:03', '2021-12-02 02:41:03'),
(1193, 'eb6XSvr6jju5rTKjEihXa4EGE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'An attesting witness not being privy to the contents of the document can not be roped in criminal case filed against the vendor for creating fraudulent document. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">O. L. Rajendra vs State of Karnataka and another. <br>Criminal Revision Petition 2816 of 2017 decided on 25 November 2021<br></span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: </span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/423746/1/CRLP2816-17-25-11-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/423746/1/CRLP2816-17-25-11-2021.pdf</a></b></p><p><b>The petitioner is before this Court calling in question the proceedings pending in C.C.No.224 of 2016 before the Judicial Magistrate First Class, Third Court, Davangere City initiated against the petitioner for offences punishable  under  Sections 465, 468 and 149 of the Indian Penal Code.</b></p><p><b>The petitioner is accused No.3 in the proceedings in C.C.No.224 of 2014. The Tahsildar of Davangere registers a complaint against one Sri K.H.Channabasappa alleging that the said Sri K.H. Channabasappa had applied for a certificate of alienation of lands in respect of Sy.No.118/2A., 2B, and 113/3  of Nituvalli village and Sy.No.110/3F of Anekonda Village. </b></p><p><b>Though there was no order of conversion issued in favour of Sri </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">K.H. Channabasappa, the accused created an  order  of  conversion and had stolen an unsigned endorsement dated 4- 01-2010 and consequently executed a registered sale deed on 20-02-2010. Based  upon  the  aforesaid  allegations,  the Tahsildar registers a complaint before the jurisdictional Police.  An FIR was registered based upon the said complaint in Crime No.44 of 2010 on 15.03.2010 for offences punishable under Sections 465, 468 read with Section 149 of the IPC.</b></p><p><b>The petitioner who is accused No.3 was a witness  who  had  affixed  his  signature to the alleged deed of sale which is fraudulently executed in terms of the complaint. </b></p><p><b>What can be gathered from Section 3 of the Transfer of Property Act is  that two or more witnesses have seen the executant sign  the instrument and in affirmation of this fact each of them have signed the instrument in the presence of  the  executant. Therefore, the witness cannot be seen to be privy to the contents of the document.  </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">...an attesting  witness need not be privy to the contents  of  the  document  unless he is signing the document in any other capacity.</b></p><p><b>16. The Apex Court clearly holds that the witnesses need not necessarily know what is contained in the document except what was brought out in the evidence. But, the evidence in the case at hand even during the investigation does not divulge any other role of the petitioner beyond that is  indicated  in  Column  17 of the charge sheet which no where mentions the name of the petitioner. The revisional Court also holds that no witness has stated that the petitioner is a party to any of the proceedings of crime. Having said so, the revisional Court ought to have discharged the petitioner for the offences punishable under Section 379 and 149 of the IPC, as without doubt the incidents narrated will not and cannot link the petitioner with the offence punishable under Section 379 or Section 149 of the IPC as he is only an attesting witness. Permitting  the  trial  to  continue against the petitioner would without doubt result in miscarriage </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of  justice  and  an  abuse  of  the  process  of  law.<span style=\"white-space:pre\">	</span>Abuse of the process of law has several hues and forms.</b></p><p><b>Criminal Petition is allowed. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Proceedings in C.C.No.224/2014  pending  before the J.M.F.C., III Court, Davanagere stands quashed qua the petitioner.</b></p><div><br></div>', '4df3d8f052103a16ae90e0439bdaf018.jpg', '8a4051992d213a7bd116ff87defef434.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-01', 1, '', '', '2021-12-02 03:22:08', '2021-12-02 03:22:50'),
(1194, 'dzIzrgXAT79E7Y6usoWX2MMxy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A judgment and decree of injunction would operate perpetually. Decree holder can file execution when the decree is violated. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">B. Chinnaswamy Setty and others vs The Bruhat Bangalore Mahanagarapalike<br></span><b>Civil Revision Petition 482 of 2021 decided on 4 October 2021.<br>Judgment </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/418334/1/CRP482-13-04-10-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/418334/1/CRP482-13-04-10-2021.pdf</a></b></p><p><b>11.1. Whether an order of injunction passed in a particular suit would be restricted in point of time or would be applicable perpetually?</b></p><p><b>12.1. The suit in O.S.No.247/1972 had been filed for declaration and for permanent injunction. The Principal Civil Judge, Bengaluru City vide its judgment dated 31.03.1977 had decreed the suit by declaring the plaintiffs to be the owners of the property and restraining the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property of the plaintiffs and had further directed the defendant to make payment of a sum of Rs.1,000/- as damages.</b></p><p><b>12.2. Once such a decree is passed, it cannot be said that the order would be time bound or would be operation for only for a particular period of time.</b></p><p><b>12.3. An injunction order could be either ad-interim, interim or perpetual. An ad-interim injunction order is passed before the appearance of the Respondent at the ex parte stage. An interim injunction order is passed after hearing both the parties pending resolution of the suit. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Lastly, once the suit comes to be decreed a perpetual injunction order is passed which by its very nature indicates that it would operate perpetually.</b></p><p><b>12.4. Hence, the contention of Sri Amit Deshpande, learned counsel for the Respondent that a decree passed in O.S.No.247/1972 has spent itself and cannot be relied upon at this length of time, is required to be rejected in limine. A perpetual order of injunction against the defendant would operate perpetually insofar as the plaintiffs and defendant are concerned. Since perpetual injunction is an order in personam.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Hence, I answer point No.1 by holding that perpetual injunction order would operate perpetually and is not a time bound between the parties concerned</b><br></p><div><br></div>', '97b7d6e53e84cfaf4daafd9b4aae8cdd.jpeg', 'bed20587848fe7d2c923bbbb97553281.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-01', 1, '', '', '2021-12-02 04:29:59', '2021-12-02 04:30:53'),
(1195, 'nzRj58Jzygk9aOlsHox3Az0Wp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Formation of road by Corporation on private property without acquisition. Karnataka High Court directs payment of compensation to the owner. ', '<p><b>B. Chinnaswamy Setty and others vs The Bruhat Bangalore Mahanagarapalike</b></p><p><b>Civil Revision Petition 482 of 2021 decided on 4 October 2021.</b></p><p><b>Judgment Link: <a href=\"http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/418334/1/CRP482-13-04-10-2021.pdf\" target=\"_blank\">http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/418334/1/CRP482-13-04-10-2021.pdf</a></b></p><p><b>12.1. The suit in O.S.No.247/1972 had been filed for declaration and for permanent injunction. The Principal Civil Judge, Bengaluru City vide its judgment dated 31.03.1977 had decreed the suit by declaring the plaintiffs to be the owners of the property and restraining the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property of the plaintiffs and had further directed the defendant to make payment of a sum of Rs.1,000/- as damages.</b></p><p><b>13.2. The trial Court has declared the plaintiffs to be the owner of the property. It is not for the defendant now to contend after having suffered the decree and having failed in the appeal to say that the plaintiffs are not the owners of the property and that the defendant, even after encroaching upon the property, is not liable to pay compensation for the said encroachment. In fact, by virtue of the judgment passed in O.S.No.247/1972, the plaintiffs would have been well within their&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">rights to seek for removal of the road which is encroaching upon the plaintiffs’ property.</b></p><p><b>13.4. Despite three opportunities having been extended to the Respondent to produce any acquisition notification, the said acquisition notification has not been produced.</b></p><p><b>13.7. Be that as it may, in the event of there being an acquisition notification, compensation would have to be paid in terms of the acquisition notification as per the decision of the Apex Court in the case of Indore Development Authority v. Manohar Lal Sharma 2020 SCC OnLine SC 316 since the compensation has not been paid till today.</b></p><p><b>13.8. Without there being an acquisition notification, a citizen has been made to run pillar to post&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">from the year 1972 against the Mega Corporation like respondent-The Bruhat Bengaluru Mahanagara Palike. The Respondent cannot be seen to ride roughshod on the right of the citizen in private property. Hence, since no acquisition notification is issued, the Respondent would be obligated to make payment of compensation as on today. The Respondent has been unable to establish that there is any acquisition notification which has been issued and that the acquisition proceedings has been completed in accordance with law</b></p><p><b>14.2. The Respondent is directed to make payment of compensation to the petitioners in terms of the acquisition notification if any as also the decision of the Apex Court in the case of Indore Development Authority within a period of eight weeks from the date of receipt of certified copy of this order. If there is no acquisition notification which has been issued, the Respondent shall make payment of compensation as per the current market value for the plaint schedule property within a period of eight weeks from today.</b></p><div><br></div>', '7d5c185b575762eb36299ff52595a8b4.jpeg', '450bc111609a4b57d63c68c2fb8dae17.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-02', 1, '', '', '2021-12-03 02:04:58', '2021-12-03 02:04:58'),
(1196, 'wvlbkDcWQyw7x6uZyCECmWLXs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SARFAESI Act. Even person other than principal borrower, like tenant, can challenge the order passed under Section 14 only before the competent Tribunal. Writ petition is not maintainable. Karnataka High Court.    ', '<div><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; font-weight: bolder;\">Abdul Khader vs Sadath Ali Siddiqui and another<br></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Writ Appeal 1102 of 2021 decided on 30 November 2021<br>Chief Justice Ritu Raj Awasthi and Justice Sachin Shankar Magadum</b></div><div><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></b></div><div><b>Whether an aggrieved person other than the principal borrower has a remedy against an order passed under Section 14 of the SARFAESI Act by a District Magistrate?</b></div><div><b> Whether the provisions of Rent Act has an overriding effect over the SARFAESI Act?</b></div><div><b><br></b></div><div><b>11. The first question raised by this Court that since the Executive District Magistrate has passed an order under Section 14 of the SARFAESI Act, the action under Section</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">14 </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">does not contemplate any remedy under the SARFAESI Act is misconceived. The Hon\'ble Apex Court in the case of Kanaiyalal Lalchand Sachdev and Others vs. State of Maharashtra and Others (2011) 2 SCC 782 has held that the action under Section 14 constitutes action taken after stage of Section  13(4) of the SARFAESI Act and therefore, the grievance, if  any, falls within the ambit of Section 17(1) and therefore, the aggrieved party has a remedy before the competent Tribunal under Section 17(4A) of the SARFAESI Act.</b></div><div><b><br></b></div><div><b>12. The arguments canvassed by the appellant that since the impugned order under challenge is passed under Section 14 of the SARFAESI Act and therefore, the appellant has no remedy would also not detain us for long in the light of Section 17(4A) of the SARFAESI Act.</b></div><div><b><br></b></div><div><b>13. The above said sub-section (4A) leaves no manner of doubt that appellant who is asserting  leasehold rights on  the ground that he is a tenant of the premises which is the subject matter of recovery proceedings under the SARFAESI Act, has an efficacious remedy under sub-section (4A) of Section 17 of the SARFAESI Act. Therefore, what emerges  from the above said sub-section (4A) is that the DRT Act and SARFAESI Act not only facilitate creation of special machinery for speedy recovery of dues of banks and financial institutions, but equally provides an adequate remedy to those who are in possession of the secured assets either as a tenant or under some other possessory rights.</b></div><div><b><br></b></div><div><b>14. The Hon\'ble Apex Court in the case of Hemraj Ratnakar Salian vs. HDFC Bank Ltd. and Others AIR 2021 SC 3880, has declined to grant any relief even though a claim was made  that he was a tenant and therefore, is entitled for protection under the Maharashtra Rent Control Act.  Therefore,  on perusal of the above said sub-section (4A) and the judgment  of the Hon\'ble Apex Court, we would sum up the issue by relegating the appellant to work out his remedies before the Debt Recovery Tribunal. The question as to whether a lawful lease was created before the borrower pledged his properties by depositing title deeds or whether the borrower had secured the consent of secured creditor while leasing the secured asset in favour of tenant are all questions to be examined by the competent Tribunal under Section 17(4A) of the  SARFAESI Act.</b></div><div><b><br></b></div><div><b>15. The Hon\'ble Apex Court in the case of United Bank of India vs. Satyawati Tondon and Others (2010) 8 SCC 110 has come  down heavily on the courts including High Courts entertaining writ petitions in respect of matters exclusively falling within </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the domain of SARFAESI Act. </b></div><div><b><br></b></div><div><b>16. Therefore, the contention of the appellant that the orders under Section 13 of the SARFAESI Act are only amenable to the appellate jurisdiction under Section 17(1) of the SARFAESI Act is totally misconceived. The said issue is dealt by the Hon\'ble Apex Court in the judgment cited supra and therefore, the contention urged by the appellant  that  since he has no remedy under the provisions of the SARFAESI Act, he can maintain a writ petition before this Court under Articles 226 and 227 of the Constitution of India cannot be acceded to. Accordingly, point No.1 formulated above is answered in the affirmative.</b></div><div><b><br></b></div><div><b>17. Regarding the second point raised by this Court, it would be useful for us to cull out Section 26-E of the  SARFAESI Act.</b></div><div><b><br></b></div><div><b>18. On plain reading of Section 26-E of the SARFAESI Act, we would find that the secured creditor has precedence over all other charges. By Amendment Act 44 of 2016 which came into effect from 01.09.2016, a new provision was incorporated into the SARFAESI Act and therefore, under Section 26-E of the SARFAESI Act, priority in payment has been statutorily created in favour of the secured creditor over all other debts including taxes payable to the Central Government or the State Government on registration of security interest. The non obstante clause under the provision makes the intention of the parliament explicit that even  against statutory charges created under the Central Act, secured creditor shall have the right for priority in payment  and priority to release the debt for bringing the secured asset for sale. The non obstante clause used in Section  26-E is a  tool by which legislature gives complete predominance to that provision over all other provisions of law.</b></div><div><b><br></b></div><div><b>19. The present appellant is asserting right on the basis of the lease agreement. On perusal of the recitals in the lease deed, it is found that the appellant has paid Rs.14 lakhs and the lease would commence from 12.02.2018 for a period of two years. This lease agreement is executed by  the respondent No.1/landlord after deposit of title deeds by executing equitable mortgage deed on 03.11.2017. Therefore, we are unable to understand, under the lease agreement, how the appellant can assert and claim right under Section 65-A of the Transfer of Property Act. Even if the appellant had any  such right under Section 65-A of the Transfer of Property Act, even then in terms of Section 26-E of the SARFAESI Act, the secured creditor has precedence and first charge over the secured assets and it is well within the jurisdiction of the Bank to proceed against the secured assets.</b></div><div><b><br></b></div><div><b>20. A secured creditor in whose favour the security interest has been created has a priority in sale and payment over all other charges, if any. The appellant, even otherwise, cannot agitate his rights against the secured creditor.  If he  has paid any amount under the lease agreement, and if there  is a breach on the part of the respondent No.1/landlord, it would give rise to civil consequences and therefore, the appellant has to seek redressal of his grievances before a competent civil Court. Therefore, in the light of discussion made supra, point No.2 formulated by this Court that the provisions of the Rent Act would override the provisions of the SARFAESI Act is misconceived and the same is answered in  the negative.</b></div><div><b><br></b></div><div><b><br></b></div><div><br></div>', '81f79c1ca3a6ee76adfee588dfac4f40.JPG', 'e6ff61ad3b7a75d5d87be3fb6095d92f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-03', 1, '', '', '2021-12-04 00:23:35', '2021-12-04 00:25:51'),
(1197, '5kC8JffHGRsG70AkHqKSVgi0t', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Judgement on admissions. When tenancy and its termination is admitted in reply notice or pleadings, decree for ejection can be passed under XII Rule 6 CPC without trial of the suit. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Late Indravathi Srinivasan by Lrs. vs Dr. Sunitha Venugopal and others. <br>Writ Petition 17829 of 2018 decided on 7 October 2021<br></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Aggrieved by the rejection of their application under Order XII Rule 6 CPC, the plaintiffs have preferred this petition.</b></p><p><b>36. Regarding the admissions, the petitioners relied on the notice and reply to the notice and pleadings of the parties. In the notice, petitioner No.1 claimed that the house was let out to respondent No.1 as per the agreement dated 10.09.2014 on monthly basis. In the reply, the respondent admitted the lease </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and the rate of rent. It was only contended that the document dated 10.09.2014 was only a formal document and in the said agreement, there was no clause for tenants to vacate. In para 5 of the reply, it was contended that the understanding between the parties is that the respondent shall not vacate the house till they complete the construction of their own premises in a nearby site.</b></p><p><b>37. In the written statement as well as in the reply notice defendant Nos.1 and 2 admitted the existence of the agreement dated 10.09.2014 thereby the relationship of the landlord and tenant was admitted. Even the rate of rent was admitted.</b></p><p><b>38. So far as the termination of the tenancy in para 3 of the reply to the notice it was contended that defendants cannot vacate the premises on or before 31.07.2016 and premises was taken not to vacate but for a fixed period. At one breath it was said that the understanding between the parties was that the defendant shall continue in the premises till they</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> construct the house in the nearby site of her father. In another breath the defence was that lease was a perpetual lease for which there was no document.</b></p><p><b>39. In the absence of the registered documents, as per Section 106(1) of the Transfer of Property Act lease is deemed to be month to month. In such case, Section 106 of the Transfer of Property Act requires issuance of 15 days notice for termination of lease. This was admittedly done in this case. Therefore there was sufficient admission to pass a decree under Order XII Rule 6 of CPC.</b></p><p><b>40. The trial Court without noticing all the aforesaid aspects simply said that the contention raised requires full dressed adjudication. The Hon’ble Supreme Court in para 12 of the judgment in Uttam Singh’s case referred to supra while holding that the Court should not unduly narrow down the meaning of the rule. </b></p><p><b>41.<span style=\"white-space:pre\">	</span>When she filed the suit petitioner No.1 was </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">75 years old. Pending these proceedings she died without seeing the fruits of the litigation. Petitioner No.2 and other heirs of petitioner No.1 are residing abroad. Petitioners are harassed and subjected to hardship due to protracted litigation that too when there are admissions with regard to the jural relationship and termination of tenancy.</b></p><p><b>42. For the aforesaid reasons, this is a fit case to exercise the discretion to grant decree under Order XII Rule 6 of CPC. The trial Court has failed to exercise </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">its discretion vested in it judiciously. Suffice it to state that the Judgments relied on by the learned counsel for respondent cannot be justifiably applied to the facts of present case.</b></p><p><b>43. For the aforesaid reasons, the petition is allowed with costs throughout. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The impugned order Annexure-A dated 12.04.2018 is<span style=\"white-space:pre\">	</span>hereby quashed. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">I.A. No.5 filed  by  the  plaintiffs/petitioners  under Order XII Rule 6 of CPC is allowed.</b></p><p><b>The respondent Nos.1 and 2 are hereby directed to handover the vacant possession of the suit schedule property to the petitioners within 60 days from the date of receipt of the copy of this order. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Trial Court shall draw the decree accordingly. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Trial Court shall proceed with the suit with regard to the relief regarding mesne profits.</b></p><p><br></p>', 'd97e5f87970d9d9b2c116d1a9824c111.jpg', 'efa727a1a33c2fb3df606d912cb6747a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-03', 1, '', '', '2021-12-04 01:19:19', '2021-12-04 01:20:05'),
(1198, 'hKc21hRTHTy0cXiXzKjOvBkcC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Reservation in elections to local bodies. \'Woman\' is not a category, but a gender and repetition of reservation in favour of woman cannot be found fault with. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Abdulla Khan and others vs State of Karnataka and others.&nbsp;<br></span><b>Writ Petition 21414 of 2021 (LB-Ele) decided on 29 November 2021<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The petitioners are before this Court calling in question the final Notification dated 25-11-2021 issued&nbsp; by the 1st respondent depicting reservation for Sira City Municipal Council&nbsp;</b><b><br></b></p><p><b>The petitioners claim to be residents of Sira and prospective candidates for the ensuing elections to the CMC. The petitioners belong to Ward No.19 of the CMC. Therefore, the petition concerns Ward No.19 alone of the CMC. The issue in the petition is with regard to policy of reservation and its rotation for the CMC. The&nbsp; first general election to the City Municipal Council&nbsp; was held in the year 2007. The term of office of Members in terms of the Karnataka Municipalities Act, 1964&nbsp; (‘the&nbsp; 1964&nbsp; Act’ for short) is five years. For the elections that were held in the year 2007, a notification was issued by the State Government on 12-10-2007 depicting reservation&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for Ward No.19 to be reserved for General (Woman),&nbsp; after which elections were notified in the year 2013. It is not in dispute that the policy of reservation&nbsp; and&nbsp; elections notified in the year 2013&nbsp; became&nbsp; subject matter of several writ petitions before this Court and ultimately decided by the Apex Court. The Apex Court directed that within one week from the date of decision&nbsp; of the Apex Court if the State Government would not notify any policy of&nbsp; reservation for&nbsp; conduct of elections of the year 2013, the earlier reservation notification&nbsp; dated 12-10-2007 be applied and elections be conducted.&nbsp; Therefore,&nbsp; the&nbsp; reservation&nbsp; notification dated 12.10.2007 stood repeated for the elections in the year 2013 as well. It is in that light Ward No.19 of the CMC was depicted to be reserved for General (Woman)&nbsp; in the 2013 as was done in the year 2007.</b></p><p><b>11. In the elections during 2013 Ward No.19 was reserved for General (Woman) and in 2021 by the impugned notification the same ward is reserved&nbsp; for&nbsp; BCA (Woman). The contention of the learned senior counsel appearing for the petitioner is that in the year 2013 it was reserved for woman category and in 2021 it&nbsp; &nbsp;is again reserved for woman category; it amounts to repetition of reservation.<span style=\"white-space:pre\">	</span>This contention is unacceptable, as the submission equates woman to a category. Woman is not a category, but a gender. Category is either ‘General’ or ‘BCA’. In the earlier elections what was reserved qua Ward No.19 was&nbsp; General (Woman) and now it is BCA (Woman). If woman is not a category, the categories that are reserved then and now are ‘General’ and ‘BCA (Woman)’ which are altogether different.&nbsp;</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12. The submission of the learned senior counsel appearing for the respondent/Election Commission also&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">merits consideration as since 2018 when the term of the elected body was over, the Administrator is holding position and elections have not been held for the last three years and it is in that light the Division Bench directed that elections to Local Bodies&nbsp; shall&nbsp; be completed by 30-12-2021 in Writ Petition No.14925 of 2020. The elections being the bulwark of democracy cannot be stifled or scuttled by the processes of this nature and interpretation that is contrary to law.</b><br></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">For the aforesaid reasons, I do not find any merit in the writ petition and is accordingly dismissed.</b><br></p><p><b><br></b></p><p><br></p>', 'd096398a0f675ec55c6b70e4df446339.jpg', '87119e5b932edcb9750763c49c7cc521.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-03', 1, '', '', '2021-12-04 01:58:10', '2021-12-04 01:58:10'),
(1199, 'ibzs5Wiai3rb9FNweOPGCIR8g', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Adverse possession. Period begins to run not from the date of alleged possession but from the date when the possession becomes adverse to the owner. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Chepudira Madaiah, vs Mallengada Chengappa, and others.&nbsp;<br></span><b>Regular First Appeal 1840 of 2005 decided on 17 November 2021</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The present appellant was the defendant No.1 in O.S.No.77/1999, on the file of learned Civil Judge (Sr.Dn.), Virajpet, (hereinafter for brevity referred to as `trial Court’), which suit was instituted by the present respondent Nos.1, 2 and 3 for the relief of possession of the suit schedule properties, which are the two pieces of land measuring 2.25 acres and 0.50 cents. The present respondent No.4 was defendant No.2 in the&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">trial Court. After contest, the said suit came to be decreed. Challenging the same, the present appeal has been filed.</b><b><br></b></p><p><b>15. According to Article 65 of the Schedule to the Limitation Act, 1963, the period of limitation for a suit for the relief of possession of an immovable property or any interest thereunder based on title is twelve years from the date when the possession of the defendant become adverse to the plaintiff. The important point to be noticed is the time from which the period begins to run is not from the date of his alleged possession of the plaintiff\'s property by the defendant, but, the time begins to run when the possession of the defendant become adverse to the plaintiff. Therefore, Article&nbsp; 65 of the Limitation Act presupposes that the limitation starts only if the defendants prove the factum of adverse possession affirmatively from a particular time. \"Animus possidendi\" is&nbsp; one of the ingredients of adverse possession and unless the person possessing the property has the requisite hostile animus, the period of prescription does not commence. The physical fact of exclusion, possession and animus possidendi to hold as owner, in exclusion to the actual owner, are the most important factors to prove the adverse possession.</b></p><p><b>16.<span style=\"white-space:pre\">	</span>Merely because PW-1 has stated in his cross- examination that in the year 1986, they came to know about the encroachment of a portion of their property by the defendants, by itself it cannot be construed that, to the knowledge of the plaintiff, the possession of the defendant had become adverse to them. Furthermore, as stated by none else than the defendants through DW-1 in their cross-examination, though they claim to be in possession of the property belonging to the plaintiff, even on the date of the cross-examination of DW-1, he was not aware as to in how much of the area of the plaintiff\'s property, the defendants were said to be in actual possession.</b></p><p><b>17.<span style=\"white-space:pre\">	</span>As held by the Hon\'ble Apex Court in Dagadabai (Dead) by Legal Representatives -vs- Abbas alias Gulab Rustum Pinjari, reported in (2017) 13 SCC 705, the person raising plea of adverse possession must necessarily first admit the ownership of true owner of relevant property to the knowledge of that owner. In the instant case, the defendants&nbsp; in their written statement have admitted the ownership of the plaintiffs over the suit schedule property.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Apart from the defendants raising the plea of adverse possession and admitting the ownership of the true owner of relevant property to the knowledge of the said owner, they should also prove that their possession is an actual, open, exclusive, hostile and continued over statutory period by wrongful dispossession of rightful owner. Thus, animus possidendi is essential. Therefore, mere possession cannot be deemed to be adverse possession merely on the basis of&nbsp; denial of another\'s title over property for that would be&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">violative of basic rights of actual owner. Until the defendants\' possession becomes adverse to that of the real owner, the defendants continue in permissive possession of the property. Only if the defendants\' possession becomes adverse to the interest of the real owner and the real owner fails to file the suit for possession within twelve years, as prescribed under Article 65 of the Limitation Act, from the point of time the possession by the defendants becomes adverse to the plaintiffs, the real owner loses his title over the&nbsp; property. Every possession is not an adverse&nbsp; possession.&nbsp; The defendants will not acquire adverse possession by simply remaining in permissive possession for howsoever long it may be.</b></p><p><b>18. The Hon\'ble Apex Court in Uttam Chand (Dead) through Legal Representatives -vs- Nathu Ram (Dead)&nbsp; through Legal Representatives and others, reported in (2020)&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11 SCC 263, was pleased to observe that, mere possession&nbsp; does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">adequate in continuity, nee clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be considered.</b></p><p><b>The Regular First Appeal is dismissed</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'e0975081fc20eff09a5d2d51620ca412.jpg', 'dfc6a690309c1ea588b737efe7b288a0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-03', 1, '', '', '2021-12-04 02:20:39', '2021-12-04 02:20:39');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1200, 'JtQclXQQCTbgK6v6ImvSMObHS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Complainant who reported illegal construction is a necessary party to proceedings initiated by owner of the building challenging demolition order. Karnataka High Court reiterates. ', '<p><span style=\"font-weight: bolder;\">Shivaprasad Navada vs Leonard Fernandes and others.<br>Writ Petition 18150 of 2018 decided 30 November 2021</span></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The petitioner in this writ petition calls in question  an  order of the Karnataka Appellate Tribunal  declining  to  permit the petitioner to get into the proceedings as party respondent.</b><span style=\"font-weight: bolder;\"><br></span></p><p><b>4. The issue with regard to whether a complainant is entitled to be a party to the proceedings instituted pursuant to a complaint registered by the complainant albeit the proceedings being between the owner of the property and the BBMP need not detain this Court for long or delve deeper into the matter, as judgments of the Apex Court, the Division Bench and the Co- ordinate benches of this Court in plethora of cases have considered the issue and ordered that the complainant at whose instance the entire proceedings have emanated against an owner of the property is entitled to be a party to the proceedings before the Tribunal. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the light of the afore-quoted judgments of the Apex Court, the Division Bench and that of the Co-ordinate Benches, the order of the Tribunal is rendered unsustainable.</b></p><p><b>6. It is not in dispute that the proceedings before the Tribunal have emanated pursuant to  notices  issued  by  the BBMP under Section 321 of the KMC Act and such notices were issued against the owner of the property  pursuant  to  a  complaint registered by the petitioner. This fact not being in dispute, the Tribunal ought to have permitted the petitioner to come on record as a party respondent, particularly, in the light </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the observations made by several Co-ordinate benches of this Court (supra), that the defence of the BBMP before the Tribunal  is sometimes doubtful and it is the complainant who should be heard in the matter.</b></p><p><b>7. Despite the aforesaid orders being passed by this Court right from 2014 and the Apex Court also confirming such an  order passed by this Court, the Tribunal  on  certain  specious  plea declines to permit the complainant to come on record which has lead to mushrooming of writ petitions being filed before this Court seeking impleadment into those proceedings  pending before the Tribunal. It is therefore, necessary to direct the Tribunal not to unnecessarily dismiss the applications  filed  by the complainants, if the proceedings before the Tribunal are a result of complaint registered by the complainants and not drive every complainant to this Court seeking such impleadment.</b></p><p><b>The impugned order dated 16.04.2018 passed by the Karnataka Appellate Tribunal, Bengaluru insofar as it pertains to declining the petitioner to come on record in Appeal No.233/2018 stands quashed.</b></p><p><b>I.A.No.V filed by the petitioner stands allowed  and the petitioner is permitted to enter the proceedings as party respondent in Appeal No.233/2018.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '58cd3aebd791579a3a1affc5e775f654.jpg', '85f8ba6891a872a5c0f7ab3cb0bb5134.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-03', 1, '', '', '2021-12-04 02:51:43', '2021-12-04 02:52:59'),
(1201, 'SSK7pzV4jwned4sfTBwfU2g8M', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Purchase of land by Karnataka Housing body without mandatory prior approval of State Government is void\'\'. Karnataka High Court cancels sale deed and restores land to the owner.', '<p><span style=\"font-weight: bolder;\">Kadasiddeshwara vs The Principal Secretary and others. <br></span><b>Writ Petition 101046 of 2021 decided on 8 October 2021<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/24425/24425_2019_34_1501_31794_Judgement_03-Dec-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/24425/24425_2019_34_1501_31794_Judgement_03-Dec-2021.pdf</a></b><b><br></b></p><p><b>8.<span style=\"white-space:pre\">	</span>This point relates to whether the Registered Sale Deed dated 23.08.2006 said to have been executed by the petitioner\'s father late Gurunath Byakodi in favour of KHB is legal, valid and proper. </b></p><p><b>(a) A plain reading of the aforesaid provision (Section 33 of the Karnataka Housing Board Act 1962) will clearly indicate that prior to execution of any Sale Deed by a person in favour of the KHB, in respect of any property, having a value of more than Rs.10 lakhs, prior approval of the State Government is essential. A perusal of the said Sale Deed dated 23.08.2006 will indicate that the total value of the sale </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">consideration stated in the said Sale Deed is Rs.2,07,64,000/-; it is there clear that before the Sale Deed was executed, prior approval of the State Government was essential in terms of Section 33(1) of the KHB Act.</b></p><p><b>(b) The material on record clearly indicates that no prior approval was obtained by the KHB before execution of the aforesaid Sale Deed in its favour; on the other hand, the said approval was granted by the State Government in favour of the KHB only on 17.10.2012 as can be seen from the communication between the KHB and State Government produced as Annexures- F, F1 and F2. It is therefore clear that no prior approval was obtained by the KHB from the State Government before the execution of the subject Sale Deed dated 23.08.2006.</b></p><p><b>(c) The next question that arises for consideration is, whether absence / lack / want of prior approval of the State Government would vitiate the impugned Sale Deed dated 23.08.2006 and render the same illegal and invalid as contended by the petitioner. As rightly contended by the </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">learned counsel for the petitioner, prior approval of the State Government is a mandatory, precondition / condition precedent / sine qua non before execution of the Sale Deed in favour of the KHB as can be seen from Section 33(1) of the Act.</b></p><p><b>(d) The distinction between the words \'approval\' and \'prior approval\' have been interpreted by the Apex Court in Bajaj Hindustan Limited\'s case (supra), wherein it is held that while the words \'approval\' includes ratification and ex post facto approval, the words \'prior approval\' or \'previous approval\' contemplates mandatory precondition / condition precedent and in the facts of the said case, the Apex Court came to the conclusion that the absence of the word \'prior\' indicates that ex-post facto approval or ratification was permissible and valid; however, if the provision contemplates previous approval or prior approval, ex post facto approval or  ratification would not validate or cure the defect on account of want / absence / lack of prior approval.</b></p><p><b>(e) So also, in DAV College\'s case, Vinod Kumar\'s case and Krishna Das Tikaram\'s case (supra), the Apex Court has categorically held that absence / lack / want of prior approval would vitiate and invalidate any document, transaction, act, deed or thing etc., required to be done or executed without obtaining previous or prior approval; in the facts of the instant case, obtaining of previous / prior approval from the State Government by the KHB before execution of the impugned Sale Deed dated 23.08.2006 would clearly invalidate and vitiate the said document and consequently, the same deserves to be quashed.</b></p><p><b>In view of the aforesaid discussion, Point No.1 is answered in favour of the petitioner by holding that absence / lack / want of previous / prior approval by the State Government before executing the impugned Sale Deed dated 23.08.2006 would vitiate and invalidate the said document and mere ex-post facto approval dated 10.04.2013 would not have the effect of ratifying or validating the Sale Deed due to the inherent lacuna / defect in the document at the time of its execution.</b></p>', '82348513107e553080456eda5c2cc9bd.jpg', '2abfd99b2660b04c483dbd4c5eb78e60.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-04', 1, '', '', '2021-12-05 02:03:13', '2021-12-05 02:06:59'),
(1202, 'DWBXNpKIMAFfY4lbnKH7j2Tae', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Urban planning is a valuable force to achieve sustainable development.\'\'. Karnataka High Court upholds land acquisition for Dr.K.Shivaram Karanth  Layout. ', '<p><b>Basappa vs State of Karnataka and others.<br>Writ Petition 5910 of 2021 decided on 29 November 2021</b></p><p><b>“By far the greatest and most admirable form of \r\nwisdom is that needed to plan and beautify cities and \r\nhuman communities.” \r\n - Socrates </b></p><p><b>\r\nOver the years, cities have expanded and become \r\nburdened by the stresses and strains of unplanned \r\nurbanization, the brunt of which is faced by the poor and \r\nthe marginalised, the biodiversity and the economy. In fact, \r\nCovid-19 revealed the dire need for planning and \r\nmanagement of our cities with an emphasis on the health of \r\ncitizens. Urban planning is a valuable force to achieve \r\nsustainable development. It distributes economic \r\ndevelopment within a given territory to reach social \r\nobjectives and creates a framework for collaboration \r\nbetween local Governments, the private sectors and the \r\npublic at large.</b></p><p><b>2. Urban planning is a framework that helps leaders\r\ntransform vision into implementation, using space as a key \r\nresource for development and engaging stakeholders along the way. Thriving cities have a vision and follow it through \r\nwith a framework to develop in an orderly manner. A\r\nframework is not about centralized command and control \r\nbut a way to anticipate needs, coordinate efforts and draw \r\na path to a horizon that is collectively held. Major efforts to \r\nenhance liveability, prosperity and equity have taken place \r\nin a number of well known cities. Such transformational \r\nimpact is not a product of spontaneity but of constructive \r\nplanning. A planned city is a well prepared city; anticipating \r\nthe future allows us to be better prepared today. On the \r\nother hand, cities that don’t actively plan for their future will \r\nlikely be left behind.</b></p><p><b>6. In these batch of writ petitions, the petitioners have \r\nchallenged the legality, validity, and correctness of \r\nPreliminary Notification No. BDA. Commr. DC (LA) . SLAO. \r\nA5. PR. 283. 2008-09 dated 30/12/2008 issued by the\r\nBangalore Development Authority (for short \'the BDA\') and \r\nFinal Notification No.UDD/533/MNX/2018 dated 30/10/2018 \r\nissued by the Respondents under Section 17(1) and (3) \r\nand Section 19(1) of the Bangalore Development Authority \r\nAct, 1976 (for short ‘the BDA Act’) respectively for \r\nformation of the aforesaid \"Dr.K.Shivaram Karanth \r\nLayout\".<br></b></p><p><b>22. There is no gainsaying the fact that all the \r\ncontentions urged by the petitioners are for the purpose of \r\nassailing the final notification and to contend that the \r\nacquisition proceedings in respect of the portions claimed \r\nby the petitioners deserve to be quashed; however, in the \r\nface of the clear dicta of the Apex Court in its order dated \r\n03.08.2018, directing issuance of the final notification in \r\nrespect of the entire extent notified under the preliminary \r\nnotification without excluding any portion from the final \r\nnotification, any contrary order or direction which would \r\nhave the effect of quashing or excluding/dropping/deleting \r\nany portion of land from the final notification would be \r\ndiametrically opposite and run counter to the order of the \r\nApex Court which is impermissible in law; in fact, this Court \r\ncannot go beyond/behind the orders of the Apex Court and \r\nany tinkering around with the orders of the Apex Court \r\nwould be a complete negation of the dicta of the Apex \r\nCourt. Under these circumstances, contentions of the \r\npetitioners that the Final Notification is liable to be quashed \r\nin respect of their properties cannot be accepted.<br></b></p><p><b>25. A conjoint reading of the order dated 03.08.2018 \r\npassed by Apex Court as well as the subsequent orders \r\nleads to the inescapable conclusion that the phrase “on \r\nmerits” as observed by the Apex Court (supra) will not \r\nentail reopening the acquisition proceedings nor interfering \r\nwith the Final Notification and the said observations pale \r\ninto insignificance, particularly in light of the subsequent \r\norders passed by the Apex Court. To put it very simply, \r\nfrom 03.12.2020 onwards, despite being fully conscious \r\nand aware that the present petitions challenging the final \r\nnotification are pending before this Court, the Apex Court \r\nhas continued to pass several orders and issue various \r\ndirections safeguarding and protecting only certain types of \r\ncategories of cases, thereby indicating that except the said \r\ncategories enumerated by the Apex Court, the Final \r\nNotification in respect of the remaining lands is perfectly legal and proper and does not warrant interference by this \r\nCourt. <br></b></p><p><b>30. In so far as all other contentions urged by the\r\npetitioners with regard to the legality and validity of Final \r\nNotification and the various decisions relied upon by the \r\npetitioners and respondents are concerned, in view of my \r\nfindings above that in the backdrop of the orders passed by \r\nApex Court, the scope of interference in the present \r\npetitions by this Court is extremely restricted and limited, \r\nthere is no merit in any of the contentions urged by the \r\npetitioners and the same are liable to be rejected; so also, \r\nin the peculiar/special fact situation obtaining in the cases \r\non hand and in the teeth of the orders passed by the Apex \r\nCourt in relation to the subject layout, none of the decisions \r\nrelied upon by the petitioners can be applied to the facts of \r\nthe instant case and the contentions of the learned counsel \r\nfor the petitioners in this regard also is liable to be rejected. \r\n \r\n31. In the result, I pass the following:- </b></p><p><b>\r\nORDER\r\n(i) All the petitions are hereby dismissed.<br></b></p><p> <br></p>', '91d503b8e0c58181aa2a5ae9e1820764.jpg', 'fb21f9d304026506dd4da0589c7163a9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-06', 1, '', '', '2021-12-07 00:21:39', '2021-12-07 00:39:13'),
(1203, '22i3PV7Rgtt2JT847WAuM7erc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'CPC. Order XXI Rule 101. Pendency of a substantive suit will not prevent the Executing Court from going into question relating to right, title or interest of the applicant. Supreme Court ', '<p><b>Bangalore Development Authority vs N. Nanjappa and another<br>Civil Appeal 6996-6997 of 2021 decided on 6 December 2021<br>Justice M.R. Shah and Justice B.V. Nagarathna <br>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2016/16661/16661_2016_43_1502_31837_Judgement_06-Dec-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2016/16661/16661_2016_43_1502_31837_Judgement_06-Dec-2021.pdf</a></b></p><p><b>5. We have heard the learned counsel for the respective parties at length. At the outset, it is required to be noted that the BDA is claiming right, title or interest in the land in question being acquired under the provisions of the 1976 Act. It is required to be noted that the lease agreement between the decree holder and the judgment debtor is subsequent to the acquisition of the suit land. Therefore, it is the case on behalf of the appellant – BDA that such a transaction is null and void once the suit land for which the lease agreement was executed was acquired under the provisions of the 1976 Act. Moreover, the award was also declared and a notification under Section 16(2) of the Land Acquisition Act evidencing taking over possession of the land by BDA was also published. Therefore, when the appellant-BDA which has submitted the obstruction/objection in the execution proceedings filed by the decree holder against the judgment debtor with respect to suit land which was acquired by BDA and when the BDA claims right, title or interest in the suit property, such obstruction/objection was required to be adjudicated upon by the Executing Court while considering the application/obstruction under Order XXI Rule 97 or Rule 99 CPC. At this stage, Order XXI Rule 97 and Order XXI Rule 101 CPC are required to be referred to and which read as under: </b></p><p><b><i>“97. Resistance or obstruction to possession of immovable property – (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. 2. Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. 101. Question to be determined – All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.”</i></b></p><p><b>6. In the instant case, it is the specific case of the appellant – BDA\r\nthat pursuant to the acquisition of the land in question, the BDA has\r\nbecome the absolute owner and the said land is vested in the BDA and\r\npossession was already taken over by the BDA and the land was handed\r\nover to the Engineering Section. Therefore, the applications submitted\r\nby BDA for impleadment in the execution proceedings and the\r\nobstruction against handing over the possession to the decree holder\r\nwere required to be adjudicated upon by the Executing Court by\r\nimpleading the BDA as a party to the execution proceedings. Though, in\r\nthe present case, a substantive suit being O.S. No. 2070/2013 filed by\r\nthe BDA against the decree holder and the judgment debtor to declare\r\nthe lease agreement as null and void is pending, irrespective of the\r\nsame, considering Order XXI Rule 101 CPC, the question relating to\r\nright, title or interest of the BDA in the suit property was required to be adjudicated upon by the Executing Court.</b></p><p><b>6.1 In view of the above, the order passed by the Executing Court\r\ndismissing the applications filed by the BDA for impleadment in the\r\nexecution proceedings and/or dismissing the obstruction application, and\r\nthe impugned order passed by the High Court, are unsustainable and the\r\nsame deserve to be quashed and set aside.<br></b></p><p><br></p>', '6d738c87030a025e872709de0c5468c1.JPG', 'abab27114dd8b90c90c46910c9d4497c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-06', 1, '', '', '2021-12-07 00:35:03', '2021-12-07 02:30:38'),
(1204, 'u2wzfKhovUigEYP1QDp9qR4gO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘’Adopting the proportionality analysis has the potential to improve the quality of judicial reasoning while protecting individual rights’’. Supreme Court dissects the doctrine of proportionality. ', '<p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Akshay N Patel vs Reserve Bank of India &amp; Anr.<br></span></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Civil Appeal No. 6522 of 2021 decided on 6 December 2021<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice Dr Dhananjaya Y Chandrachud Justice Vikram Nath and Justice B V Nagarathna&nbsp;<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link:&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"https://main.sci.gov.in/supremecourt/2020/23817/23817_2020_34_1501_31829_Judgement_06-Dec-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/23817/23817_2020_34_1501_31829_Judgement_06-Dec-2021.pdf</a></span></b></p><p><b>16 An analysis of legitimate social control for the purpose of Article 19(6) has\r\nbeen streamlined by this Court through the lens of proportionality. A two-judge\r\nBench of this Court in Om Kumar v. Union of India26 introduced the test of\r\nproportionality for determining the reasonableness of restrictions on freedoms\r\nguaranteed under Article 19(1).</b></p><p><b>22 Some academic commentators have suggested that the Courts can adopt the\r\nproportionality analysis, even when considering rights with different limitations. They\r\nstate this for three reasons: (i) litigation of rights can often be open-ended, which&nbsp;risks the analysis becoming inconsistent across different cases. Hence, a formal\r\nbalancing procedure, such as the proportionality analysis, is useful in providing a\r\nstructure to the arguments; (ii) in multiple jurisdictions, the provision of the right itself\r\ncontains a limitation clause (such as Article 19 in the Indian Constitution) and even\r\nthen, the courts have opted to use the proportionality analysis. In such\r\ncircumstances, the courts use the proportionality analysis to test the application of\r\nthe limitation clause; and (iii) the proportionality analysis is particularly helpful when\r\nthe dispute between a right and its limitation is recast as one between a right and a\r\nmeasure which limits that right but only to promote a different right.</b></p><p><b>23 On the other hand, in an illuminating article in the Yale Law Journal, Professor\r\nVicki Jackson has pointed out that there are structural differences between various\r\nrights, due to which a proportionality analysis may not be suitable for some of them.\r\nWhile Professor Jackson agrees with the principle of balancing that underlies\r\nproportionality as a principle, she issues a note of caution that the protection of\r\ncertain rights may be better suited to categorical rules. Even so, Professor Jackson\r\nsupports the use of proportionality analysis wherever possible and notes its benefits\r\nin the following passage.</b></p><p><b><i>“Using proportionality to define violations, of course, does not\r\ndictate remedies or exclude definitions of rights based on\r\nseparate deontological or historical questions. However,\r\ngreater use of proportionality, as a principle and as a\r\nstructured form of review, has several potential benefits. It&nbsp;could enhance judicial reasoning by clarifying justifications for\r\nlimitations on freedoms. Proportionality might also improve\r\nthe outcomes of adjudication by bringing…constitutional law\r\ncloser to…conceptions of justice, in ways consistent with the\r\ndemands of effective government. Finally, proportionality may\r\nbe democracy-enhancing, both in providing a shared\r\ndiscourse of justification for action clamed to limit rights and in\r\nproviding more sensitivity to serious process-deficiencies\r\nreflecting entrenched biases against particular groups.”&nbsp;&nbsp;</i></b></p><p><b>25 The present case poses another issue, which is whether an integrated\r\nproportionality analysis can be undertaken for assessing the violation of all three\r\nrights. It is a settled principle that fundamental rights in Part III are not understood in\r\nsilos, but as an inter-related enunciation of rights and freedoms that uphold the basic\r\nrubric of human rights.<br></b></p><p><b><br></b></p><p><b>&nbsp;<br></b></p><p><b><br></b></p><p><b><br></b></p><p><b>&nbsp;<br></b></p><p><br></p>', '593acca709e2ce6fcec87719a681bd01.JPG', '367c588652d8a2d58158ca7c3cb9b01c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-06', 1, '', '', '2021-12-07 02:15:45', '2021-12-07 02:15:45'),
(1205, 'vWvc3onLBn2Fnziqly0Pg9p4U', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Family pension. Order of priority under the pension Rules prevail over order of priority under the Hindu Succession Act. When wife is alive, no other legal/illegitimate heir can claim family pension. Karnataka High Court. ', '<p><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Sathish Kumar T.V. vs State of Karnataka and others.&nbsp;</span><br></p><p><span style=\"font-weight: bolder;\">Regular Second Appeal 429 of 2015 decided on 29 November 2021.</span></p><p><b>The unsuccessful plaintiffs have preferred this regular second appeal challenging the judgment and decree dated 25th April 2014 passed by the court of</b></p><p><b>Principal Civil Judge and J.M.F.C., Madhugiri in O.S.No.344/2012, which has been confirmed by the court of Additional Senior Civil Judge and J.M.F.C., Madhugiri, in R.A.No.40/2014 by its judgment and decree dated 10.10.2014.</b></p><p><b>14.<span style=\"white-space:pre\">	</span>A reading of the aforesaid rules makes it clear that sanction of pension to the family of the deceased government servant in the State&nbsp; of Karnataka has to be on the order of priority as mentioned in Rule 9 of the Rules of 2002. The term \"family\" referred in Rule 9 gets its definition from Rule 8 of the Rules 2002 and reading of the said Rule would make it clear that \"family\" means&nbsp; wife/husband,&nbsp; minor sons and unmarried daughters of the deceased Government servant, who has not attained the age of&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">21 years. They are the beneficiaries of the family pension sanctioned under Rule 9 to the persons mentioned therein in the order of priority. Rule 8 provides with regard to the persons who are entitled&nbsp; for the benefits of family pension while Rule 9 provides with&nbsp; regard&nbsp; to&nbsp; sanction&nbsp; of&nbsp; the&nbsp; family&nbsp; pension&nbsp; and it&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">also clearly states the sanction of family pension is to be made in the order of priority. A reading of Rule 9 makes it clear that the family pension is required to be sanctioned in the order of priority as&nbsp; mentioned therein and therefore, all the members of the family of deceased government servant would not be eligible for the benefit of family pension immediately after his/her death. A conjoint reading of these two rules would make it clear that the family pension sanctioned under Rule 9 is for the benefit of the family as provided&nbsp; under Rule 8. Therefore, these rules would make&nbsp; it very clear that immediately after the death of a Government servant, the surviving spouse of such government servant is entitled for the family pension and it is only in the case of death or re-marriage&nbsp; of&nbsp; said spouse, the children become entitled for&nbsp; the&nbsp; family pension. The rules further provide for priority even amongst the children. If there are two minor children, the family pension is required to be sanctioned to the elder amongst them till he reaches&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the age of majority and it is only thereafter the second son would be entitled for the family pension. Similarly in the case of daughters, the elder daughter would be eligible for family pension till she attains the age of 21 years or gets married whichever is earlier and only thereafter the next daughter would be entitled for family pension. This scheme of payment of pension in the order of priority to the members of the family is framed by the legislature keeping in mind the overall welfare of the family of deceased government servant. The said rule also provides for sanction of family pension in the order of priority to the children of the government servant suffering from disorder or disability and in deserving case, through natural guardian or legal guardian.</b></p><p><b>15.<span style=\"white-space:pre\">	</span>It is no doubt true that the wife and children of a government servant including the children born out of a void marriage are entitled for family pension, but the sanction of family pension has to be in&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">accordance with Rule 9 which provides an order of priority. The sanction/payment of family pension to&nbsp; the children, who are entitled for the same in view of Section 16 of the Hindu Marriage Act is, therefore, subject to the order of priority as mentioned in Rule 9 of the Rules of 2002. In the case on hand, admittedly the first wife of late T.N.Veerakyathaiah viz., the fourth defendant herein is alive. Having regard to the same, neither her children nor the children born from the second marriage/void marriage are entitled to claim family pension during her life time.</b></p><p><b>16.<span style=\"white-space:pre\">	</span>Under the circumstances, the courts below were fully justified in refusing to grant the relief to the plaintiffs with regard to their claim for pensionary benefits of deceased T.N.Veerakyathaiah. The judgments and decree passed by the courts below do not suffer from any irregularity or illegality nor&nbsp; the said judgments and decree can be termed as perverse in nature. On an overall appreciation of the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">arguments addressed on behalf of the appellants and having regard to the oral and documentary evidence available on record, I am of the considered view that&nbsp; no substantial question of law arises for consideration in this regular second appeal and accordingly,&nbsp; I&nbsp; decline to admit this appeal. The regular second&nbsp; appeal is, therefore, dismissed.</b></p><p><b>In view of disposal of the appeal, the pending I.A. does not survive for consideration. Hence, it stands disposed of.</b></p><div><br></div>', '5a378d03dd9130de042d3c023c3444cc.jpg', 'a9165b0360a4f002d5cb7332beeb58a4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-06', 1, '', '', '2021-12-07 03:49:34', '2021-12-07 03:50:49'),
(1206, 'oZFj3wirqsZrfvGFul5Q3IHXG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'No foreigner can lay a claim for more rights than are granted by the host country\'\'. Karnataka High Court rejects plea of Chinese national to stay in India indefinitely. ', '<p><span style=\"font-weight: bolder;\">Li Dong vs Union of India and another.<br>Writ Petition 22003 of 2021 decided on 3 December 2021</span></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Petitioner a national of People’s Republic of China is once again knocking at the doors of Writ Court seeking an appropriate order that would facilitate the extension of her stay on Indian soil indefinitely, the extension of her Visa granted on a few occasions  having  already  expired;  she also seeks to lay a challenge to the Leave India Notice that eventually resulted into issuance of a  series  of  Exit  Permits, the latest being dated 11.11.2021.</b></p><p><b>(a) Petitioner admittedly is a foreigner; the rights & obligations of the foreigners are inter alia governed by the Foreigners Act, 1946 and the Orders promulgated thereunder; she was granted the e-Visa dated 22.06.2019 </b></p><p><b>(e) The vehement contention of learned counsel for the petitioner that India being a signatory to the International Covenant on Civil & Political Rights, 1966, does not permit expulsion of an alien from the territory of a host country except in accordance with  law,  is  broadly  true; Article 13 of the said Covenant reads as under:</b></p><p><b><i>“Article 13: An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be  represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority”.</i></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">As a well settled principle  of  international law, the process of deportation can only be carried out with due process of law; while the ICCPR does require a State to expel aliens in accordance with law, it refers to  those foreigners who are   in the host country ‘lawfully’; petitioner admittedly is overstaying the Visa & extended Visa.</b><br></p><p><b>(f) Petitioner is being asked to leave the  country  not all of a sudden as sought to be made out by the  pleadings & submissions; her Visa period has expired long ago; despite issuance of Leave India Notices in series, she has been clinging on to Indian soil with one or the other </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">excuses; admittedly, she was shown some concession by a Co-ordinate Bench of this Court too;  the  question  of passing specific order on the representation of petitioner would not arise since as a matter of policy extension was granted to all the foreigners upto 30.09.2021 which she herself has averred at paragraphs 13 & 14 of the petition.</b></p><p><b>(a) Oppenheim\'s International Law, volume 1, 8th Edition, page 675 says:“... no State can claim the right for its subjects to enter into, and reside on, the territory of a foreign State. The reception of aliens is a matter of discretion, and every State is by reason of its territorial supremacy competent to exclude aliens from the whole or any part, of its territory... if a State need not receive aliens at all, it can receive them only under certain conditions...<i>\", similarly, another acclaimed jurist J.G.Starke in his Introduction to International Law, 11th Edition at Pages 314-315 writes: \"Most states claim in legal theory to exclude all aliens at will, affirming that such unqualified right is an essential attribute of sovereign government...The absence of any duty at international law to admit aliens is supported by an examination of state immigration laws, showing that </i></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>scarcely any states freely admit aliens... Most states, however place aliens under some kind of disability or some measure of restrictions of varying severity...”</i></b></p><p><b>The Apex Court in UNION OF INDIA Vs. AGRICAS, LLP 2020 SCC Online SC 675, has respectfully referred to the writings of Oppenheim; similarly, the Constitution Bench of the Apex Court has referred to the opinions of  J.G.Starke, in several cases i.e., UOI Vs. SUKUMAR SEN GUPTA, 1990 (3) SCR 24 and in SARBANANDA SONOWAL </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Vs. UOI, AIR 2005 SC 2920.</b></p><p><b>(b) It can be broadly normed that the rights  of  aliens on a foreign soil are those which the host country grants and that no alien can lay a claim  for  more  rights than are granted; our Constitution extends certain Fundamental Rights to non-citizens as well, inter  alia  under Articles 14, 20 & 21, is true; however, the degree & extent of their availment vary depending upon the circumstances, which the domestic law envisages; the significance of boundaries of nations justifies the classification of people as citizens and aliens; SALMOND in an article on ‘CITIZENSHIP AND ALLEGIANCE’ published more than a century ago in (1901) 17 LQR 270 wrote: “…Citizenship is a title to rights which are not available for </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">aliens. Citizens are members optimo jure, while aliens stand  on a lower level in the scale of legal right…”.</b></p><p><b>(c) A distinction is made in practically all countries between citizens & non-citizens and between domiciled & non-domiciled aliens, with reference to their rights & duties; how the aliens should be treated is essentially a policy  matter left to the wisdom of the government of  host country; several pragmatic factors and the lessons gained from experience enter the fray of foreign-policy-making and it’s implementation; in matters of this kind, courts lack expertise in assessing the worth  &  relevance  of  such  factors and therefore as of necessity recognize a greater latitude in the Executive; the Executive i.e., the competent authorities have taken the decision to issue Leave India Notices and the judiciary being an organ of the State has     to show due deference to such decisions of other  organs; that is the essence of doctrine of \'Separation of Powers\' which is recognized as a basic feature of our Constitution vide INDIRA NEHRU GANDHI Vs. RAJ NARAIN, 1976 (2) SCR 347.</b></p><p><b>(a) A Writ Court cannot turn a Nelson’s Eye to the realities of the world; it hardly needs to be stated that in hosting the foreigners, the principle of reciprocity between the host country and the  foreign  country concerned and the doctrine of Sovereignty of Nations, assume significance in matters relating to expulsion of foreigners; several other factors that belong to the domain and expertise of the Executive do also figure; despite repeated questioning, learned counsel  for  the  petitioner was not in a position to answer as to how overstaying  Indians are treated in the country to which his client belongs; a basic search reveals that  such  persons  are treated with hefty penalties & stringent punishments; in almost all countries, overstaying the Visa period per se is made an offence, although  punishments  &  penalties  vary in degrees; in India, Sec. 14 of the Foreigners Act, criminalizes the act of overstaying the VISA and the offence is punishable with an imprisonment upto 5 years and levy    of unlimited fine; that being the  position,  there  is absolutely no justification for the petitioner to stay on  Indian soil any longer disobeying a series of Leave India Notices; such foreign nationals cannot be  granted indulgence by the constitutional courts.</b></p><p><b>(b) The reliance of learned counsel for  the  petitioner on the decision of the Apex Court in HASAN ALI RAIHANY Vs. UOI AND OTHERS, (2006) 3 SCC 705 that she cannot be expelled without giving reasons, does not much come to her aid inasmuch as,  it  was  a  case  of sudden deportation of a foreign national who was born, brought up, domiciled & educated in India; since long he  was carrying on lawful business too; this  fact  matrix  is miles away from that of petitioner’s case; similarly, the Division Bench decision of Hon’ble Delhi High Court in MOHD. JAVED & ANOTHER Vs. UOI & ANOTHER, AIR 2019 DEL 170, too does not much come to the support of petitioner because of differential fact matrix; in the said  case, the foreigner was abruptly asked to leave India absolutely without any justification when his Long Term  Visa (LTV) period had not yet expired; it is pertinent to mention what Lord Halsbury more than a century ago had said in QUINN Vs. LEATHEM, 1901 AC 495 that a case is an authority for the proposition that it lays down in a given fact matrix and not for all that which logically follows from what has been so laid down.</b></p><p><b>a) Nowadays Courts have been noticing a large chunk of cases involving overstaying of VISA and VISA violation by the foreigners; in quite a few cases, an impression is gathered that the aliens concerned want to somehow perpetuate their continuance in the Indian Territory and for this, several devious strategies  are  adopted (however, arguably petitioner’s may not be one  such case); one such means is to commit some bailable offence and to trigger the prosecution which would more often than not be dragged for long; added to this, the bail orders obtained by them are wrongly treated by  the  quarters that be as the VISA extensions, unmindful of the difference that galores between them; extension of VISA is one thing & enlargement on bail is another; bail bars the custody and ordinarily, it is granted by the courts, whereas VISA is granted by the authorities of the Union Govt., in its absolute discretion; therefore, in cases of VISA expiry, regardless of the bail order, the accused aliens have to be quarantined consistent with the observations of a  Coordinate Bench of this Court in CHRISTIAN CHIDIEERE CHUKWU Vs. THE STATE OF KARNATAKA, ILR 2016 KAR 1232.</b></p><p><b>b) The above apart, it is desirable to incorporate appropriate conditions in the VISA documents so that the foreigners shall leave Indian territory soon after the expiry  of the VISA period without brooking any  delay;  an assurance can be insisted upon from the concerned foreign countries for the cancellation of the travel documents of  their citizens co-terminus with the expiry of their VISA so that their expulsion becomes easy consistent with the principles of Sovereignty & Reciprocity; an appropriate provision can also be made for discouraging their entry to India on subsequent occasions, as well; this apart, the penalties/fines for overstaying aliens should be reasonably enhanced commensurate with the seriousness of the  issue;  it is also desirable to request  the  concerned  foreign States to recall their Nationals immediately on the expiry of their travel documents; precautionary measures may be  many  but the policy makers need to advert to them, keeping in view all relevant factors.</b></p><p><b>In the above circumstances, this writ petition being devoid of merits is liable to be dismissed and accordingly it is, costs having been made easy; however, the Competent Authorities in their discretion may conditionally permit the petitioner to stay in India till the first flight to China is scheduled and not beyond that.</b></p>', '0182fb575248d79c6e0eadaeb532d06e.jpg', 'e51b01dcb7e17f849c53b253cd95e584.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-06', 1, '', '', '2021-12-07 04:12:43', '2021-12-07 04:19:26'),
(1207, '69ZvH60CYJEhCePVXk1OHnCYM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mere acceptance of amount at enhanced rate towards damages after termination of tenancy does not amount to creation of fresh tenancy. Supreme Court.  ', '<p><b>K.V. Sathyavathi vs M/s. Auto World<br>Civil Appeal 7251 of 2019 decided on 13 September 2019<br>Justice Sanjay Kishan Kaul and Justice K.M. Joseph</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The undisputed position is that the appellant is the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">landlord and the respondent is the tenant and the period of&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">tenancy is over. No doubt after the termination of the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">tenancy, at the first instance by a notice, there were some&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">amounts accepted by the appellant at enhanced rate but that&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is claimed by the appellant to be towards damages. This was&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">followed by a second tenancy termination notice. There is&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">no fresh tenancy created nor documents executed in that&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">behalf. Thus, at best in our view, the respondent is a&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">tenant on a month to month basis.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In our view the impugned order is not sustainable.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">It is predicated only on the issue of having accepted the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">amounts after notice has been issued under Section 116 of&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Transfer of Property Act, 1882.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">We are thus of the view that the impugned order not&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">being sustainable, is liable to be set aside and the order&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the Trial Court dated 6th November, 2014 is restored. The&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appeal is accordingly allowed.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">At this stage, learned counsel for the respondent&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">requests for some time to vacate the premises. We are&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">informed that the amount towards the alleged rent @&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rs.18,150/- (Rupees eighteen thousand one hundred and fifty)&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">per month was remitted but not accepted. We direct the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respondent to remit the amount towards damages at the same&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">rate upto the date (i.e. September, 2019 month) within a&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">period of three weeks from today.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">We grant time to the respondent to vacate the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">premises on or before 31st March, 2020 subject to furnishing&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">usual undertaking within two weeks from today in the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Registry of this Court.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">For the period for which the respondent will now&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">enjoy the premises i.e. from 1st October, 2019 till 31st&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">March, 2020 the damages will be paid at the enhanced rate of&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rs.50,000/- (Rupees fifty thousand) payable by the 7th of&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">each month in advance.</b></p><p><br></p>', '04b63a235ea29cdb99710d47723a8933.jpg', '6cd920982e646b08da0325658a7a277a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-06', 1, '', '', '2021-12-07 04:37:02', '2021-12-07 04:37:02');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1208, 'MsSzr1h0qDFXR3fBH3MvwsERJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mediclaim policy. If the insured suffers a sudden sickness or ailment which is not expressly excluded under the policy, a duty is cast on the insurer to indemnify the insured for the expenses incurred thereunder. Supreme Court. ', '<p><b>Manmohan Nanda vs United India Assurance Co Ltd and another&nbsp;<br>Civil Appeal 8386 of 2015 decided on 6 December 2021<br>Justice Dr. Dhananjaya Y Chandrachud and Justice B.V. Nagarathna<br>Judgment&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Link: <a href=\"https://main.sci.gov.in/supremecourt/2015/29525/29525_2015_43_1501_31837_Judgement_06-Dec-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2015/29525/29525_2015_43_1501_31837_Judgement_06-Dec-2021.pdf</a></span></b></p><p><b>12.&nbsp; It was contended by learned Senior Counsel along with learned counsel for the appellant that the repudiation of the contract on the ground of suppression of pre­existing disease by appellant was wholly erroneous. Our attention was drawn to the fact that respondent No.1 had&nbsp; &nbsp;repudiated&nbsp; &nbsp;the&nbsp; &nbsp;claim&nbsp; &nbsp;on&nbsp; &nbsp;the&nbsp; &nbsp;premise&nbsp; &nbsp;that&nbsp; &nbsp;the&nbsp; &nbsp;appellant&nbsp; &nbsp;was suffering from hyperlipidaemia at the time of seeking the insurance policy and in fact had been prescribed statins, which fact had not been disclosed to the insurer. It was contended that the appellant had no knowledge that he was suffering from hyperlipidaemia at the time of submission of the proposal form. The obligation to disclose any fact extends only when the said fact is known to the appellant but not otherwise.&nbsp; &nbsp;In&nbsp; &nbsp;support&nbsp; &nbsp;of&nbsp; &nbsp;this&nbsp; &nbsp;submission,&nbsp; &nbsp;reliance&nbsp; &nbsp;was&nbsp; &nbsp;placed&nbsp; &nbsp;on Satwant Kaur Sandhu v. New India Assurance Co. ­ (2009) 8 SCC 316. In fact, the proposal form itself stipulates that it should be completed to the best of the insured’s “knowledge and belief”. The appellant had stated that he was not suffering from hyperlipidaemia and that the same was diagnosed for the first time on 19th May, 2009 at&nbsp; &nbsp;the&nbsp; &nbsp;Medical&nbsp; &nbsp;Centre&nbsp; &nbsp;in&nbsp; &nbsp;San&nbsp; &nbsp;Francisco.&nbsp; &nbsp;The&nbsp; &nbsp;doctor&nbsp; &nbsp;had&nbsp; &nbsp;noted “hyperlipidaemia”, under the column “IMPRESSION”, after examining the appellant on 21st&nbsp; May, 2009, but the same did not find a place under&nbsp; &nbsp;“discharge&nbsp; &nbsp;diagnosis”&nbsp; &nbsp;issued&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;appellant&nbsp; &nbsp;on&nbsp; &nbsp;24th&nbsp; May, 2009. There was no intention to suppress any material fact by the appellant at the time of filling the proposal form as the appellant had no knowledge that he was suffering from hyperlipidaemia as on 15th May, 2009, when the proposal form was filled by him.</b></p><p><b>16.&nbsp; It was submitted that for an insurer to repudiate the policy it must establish suppression or a misrepresentation of material facts on&nbsp; &nbsp;the&nbsp; &nbsp;part&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;insured&nbsp; &nbsp;vide&nbsp; Oriental&nbsp; &nbsp;Insurance&nbsp; &nbsp;Co&nbsp; &nbsp;Ltd.&nbsp; &nbsp;v. Mahendra Construction ­&nbsp; (2019) 18 SCC 209 and LIC of India v. Smt.&nbsp; &nbsp;G.M.&nbsp; &nbsp;Channabasamma&nbsp; &nbsp;­&nbsp; (1991)&nbsp; &nbsp;1&nbsp; &nbsp;SCC&nbsp; &nbsp;357.&nbsp;&nbsp;</b></p><p><b>Whether the appellant herein had suppressed or not disclosed&nbsp; &nbsp;material&nbsp; &nbsp;facts&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;proposal&nbsp; &nbsp;form&nbsp; &nbsp;which could have led the insurer to repudiate the policy in question?</b></p><p><b>29. Before we proceed, it is necessary to discuss two aspects of the matter which give rise to the controversy in the present appeal. The first is what may be expressed in the legal maxim uberrimae fidei or the&nbsp; &nbsp;principle&nbsp; &nbsp;of&nbsp; &nbsp;good&nbsp; &nbsp;faith&nbsp; &nbsp;and&nbsp; &nbsp;the&nbsp; &nbsp;corresponding&nbsp; &nbsp;principle&nbsp; &nbsp;of disclosure of all material facts by the parties to an insurance policy. The second principle is expressed in the contra proferentem rule.&nbsp;</b></p><p><b>30.&nbsp; It is&nbsp; observed&nbsp; that insurance contracts&nbsp; are&nbsp; special&nbsp; contracts based&nbsp; &nbsp;on&nbsp; &nbsp;the&nbsp; &nbsp;general&nbsp; &nbsp;principles&nbsp; &nbsp;of&nbsp; &nbsp;full&nbsp; &nbsp;disclosure&nbsp; &nbsp;inasmuch&nbsp; &nbsp;as&nbsp; &nbsp;a person&nbsp; &nbsp;seeking&nbsp; &nbsp;insurance&nbsp; &nbsp;is&nbsp; &nbsp;bound&nbsp; &nbsp;to&nbsp; &nbsp;disclose&nbsp; &nbsp;all&nbsp; &nbsp;material&nbsp; &nbsp;facts relating to the risk involved. Law demands a higher standard of good faith in matters of insurance contracts which is expressed in the legal maxim uberrimae fidei.&nbsp;</b></p><p><b>32.&nbsp; Lord Mansfield in&nbsp; Carter&nbsp; v.&nbsp; Boehm&nbsp; (1766)&nbsp; 3&nbsp; Burr&nbsp; 1905&nbsp; has summarised the principles necessitating disclosure. ... In simple terms, it could be understood that any fact which has a bearing on the very foundation of the contract of insurance and the risk to be covered under the policy would be a “material fact”.</b></p><p><b>33.&nbsp; Under the provisions of Insurance Regulatory and Development Authority (Protection of Policyholders’ Interests) Regulations,2002 the explanation to Section 2 (d) defining “proposal form” throws light on what is the meaning and content of “material.” ....Thus, the Regulation also defines the word \"material\" to mean and include all \"important\", \"essential\" and \"relevant\" information in the context of guiding the insurer in deciding whether to undertake the risk or not.&nbsp;</b></p><p><b>34.&nbsp; Just as the insured has a duty to disclose all material facts, the insurer must also inform the insured about the terms and conditions of&nbsp; the&nbsp; &nbsp;policy that&nbsp; is&nbsp; going&nbsp; to&nbsp; &nbsp;be&nbsp; issued&nbsp; &nbsp;to&nbsp; &nbsp;him and&nbsp; must&nbsp; strictly conform to the statements in the proposal form or prospectus, or those made through his agents. Thus, the principle of utmost good faith imposes meaningful reciprocal duties owed by the insured to the insurer&nbsp; &nbsp;and&nbsp; vice&nbsp; &nbsp;versa.&nbsp; &nbsp;This&nbsp; &nbsp;inherent&nbsp; &nbsp;duty&nbsp; &nbsp;of&nbsp; &nbsp;disclosure&nbsp; &nbsp;was&nbsp; &nbsp;a common law duty of good faith originally founded in equity but has later been statutorily recognised as noted above. It is also open to the parties entering into a contract to extend the duty or restrict it by the terms of the contract.&nbsp;</b></p><p><b>35.&nbsp; The duty of the insured to observe utmost good faith is enforced by requiring him to respond to a proposal form which is so framed to seek all relevant information to be incorporated in the policy and to make it the basis of a contract. The contractual duty so imposed is that any suppression or falsity in the statements in the proposal form would result in a breach of duty of good faith and would render the policy voidable and consequently repudiate it at the instance of the insurer.</b></p><p><b>36. In relation to the duty of disclosure on the insured, any fact which would&nbsp; &nbsp;influence&nbsp; &nbsp;the&nbsp; &nbsp;judgment&nbsp; &nbsp;of&nbsp; &nbsp;a&nbsp; prudent&nbsp; &nbsp;insurer&nbsp; and&nbsp; &nbsp;not&nbsp; &nbsp;a particular&nbsp; &nbsp;insurer&nbsp; is&nbsp; &nbsp;a&nbsp; &nbsp;material&nbsp; &nbsp;fact.&nbsp; &nbsp;The&nbsp; &nbsp;test&nbsp; &nbsp;is,&nbsp; &nbsp;whether,&nbsp; &nbsp;the circumstances in question&nbsp; would&nbsp; influence the prudent insurer and not&nbsp; &nbsp;whether&nbsp; &nbsp;it&nbsp; might&nbsp; influence&nbsp; &nbsp;him&nbsp; &nbsp;vide&nbsp; Reynolds&nbsp; &nbsp;v.&nbsp; &nbsp;Phoenix Assurance Co. Ltd. (1978) 2 Lloyd’s Rep. 440. Hence the test is to be of a prudent insurer while issuing a policy of insurance.&nbsp;</b></p><p><b>37.&nbsp; The basic test hinges on whether the mind of a prudent insurer would be affected, either in deciding whether to take the risk at all or in fixing the premium, by knowledge of a particular fact if it had been disclosed.&nbsp; Therefore, the fact must be one affecting the risk. If it has no bearing on the risk it need not be disclosed and if it would do no more than cause insurers to make inquiries delaying issue of the insurance, it is not material if the result of the inquiries would have no effect on a prudent insurer.</b></p><p><b>38.&nbsp; Whether a fact is material will depend on the circumstances, as proved by evidence, of the particular case.&nbsp; It is for the court to rule as a matter of law, whether, a particular fact is capable of being material and to give directions as to the test to be applied.&nbsp; Rules of universal application are not therefore to be expected, but the propositions set out in the following paragraphs are well established :</b></p><p><b>(a) Any fact is material which leads to the inference, in the circumstances of the particular case, that the subject matter of insurance is not an ordinary risk, but is exceptionally liable to be affected by the peril insured against.&nbsp; &nbsp;This is referred to as the ‘physical hazard”.</b></p><p><b>(b) Any fact is material which leads to the inference that the particular proposer is a person, or one of a class of persons, whose proposal for insurance ought to be subjected at all or accepted at a normal rate.&nbsp; This is usually referred to as the ‘moral hazard’.</b></p><p><b>42.&nbsp; The&nbsp; &nbsp;basic&nbsp; &nbsp;rules&nbsp; &nbsp;to&nbsp; &nbsp;be&nbsp; &nbsp;observed&nbsp; &nbsp;in&nbsp; &nbsp;making&nbsp; &nbsp;a&nbsp; &nbsp;proposal&nbsp; &nbsp;for insurance may be summarized as follows : (see a to g)&nbsp;</b></p><p><b>52. On a consideration of the aforesaid judgments, the following principles would emerge:</b></p><p><b>(i) There&nbsp; &nbsp;is&nbsp; &nbsp;a&nbsp; &nbsp;duty&nbsp; &nbsp;or&nbsp; &nbsp;obligation&nbsp; &nbsp;of&nbsp; &nbsp;disclosure&nbsp; &nbsp;by&nbsp; &nbsp;the insured&nbsp; &nbsp;regarding&nbsp; &nbsp;any&nbsp; &nbsp;material&nbsp; &nbsp;fact&nbsp; &nbsp;at&nbsp; &nbsp;the&nbsp; &nbsp;time&nbsp; &nbsp;of making the proposal. What constitutes a material fact would depend upon the nature of the insurance policy to&nbsp; &nbsp;be&nbsp; &nbsp;taken,&nbsp; &nbsp;the&nbsp; &nbsp;risk&nbsp; &nbsp;to&nbsp; &nbsp;be&nbsp; &nbsp;covered,&nbsp; &nbsp;as&nbsp; &nbsp;well&nbsp; &nbsp;as&nbsp; &nbsp;the queries that are raised in the proposal form.</b></p><p><b>(ii) What&nbsp; &nbsp;may&nbsp; &nbsp;be&nbsp; &nbsp;a&nbsp; &nbsp;material&nbsp; &nbsp;fact&nbsp; &nbsp;in&nbsp; &nbsp;a&nbsp; &nbsp;case&nbsp; &nbsp;would&nbsp; &nbsp;also depend upon the health and medical condition of the proposer.</b></p><p><b>(iii) If specific queries are made in a proposal form then it is expected that specific answers are given by the insured who is bound by the duty to disclose all material facts.</b></p><p><b>(iv) If any query or column in a proposal form is left blank then the insurance company must ask the insured to fill it up. If in spite of any column being left blank, the insurance company accepts the premium and issues a policy, it cannot at a later stage, when a claim is made under the policy, say that there was a suppression or non­disclosure of a material fact, and seek to repudiate the claim.</b></p><p><b>(v) The insurance company has the right to seek details regarding medical condition, if any, of the proposer by getting the proposer examined by one of its empanelled doctors. If, on the consideration of the medical report, the insurance company is satisfied about the medical condition of the proposer and that there is no risk of pre­existing&nbsp; &nbsp;illness,&nbsp; &nbsp;and&nbsp; &nbsp;on&nbsp; &nbsp;such&nbsp; &nbsp;satisfaction&nbsp; &nbsp;it&nbsp; &nbsp;has issued&nbsp; &nbsp;the&nbsp; &nbsp;policy,&nbsp; &nbsp;it&nbsp; &nbsp;cannot&nbsp; &nbsp;thereafter,&nbsp; &nbsp;contend&nbsp; &nbsp;that there&nbsp; &nbsp;was&nbsp; &nbsp;a&nbsp; &nbsp;possible&nbsp; &nbsp;pre­existing&nbsp; &nbsp;illness&nbsp; &nbsp;or&nbsp; &nbsp;sickness which has led to the claim being made by the insured and for that reason repudiate the claim.</b></p><p><b>(vi) The insurer must be able to assess the likely risks that may&nbsp; &nbsp;arise&nbsp; &nbsp;from&nbsp; &nbsp;the&nbsp; &nbsp;status&nbsp; &nbsp;of&nbsp; &nbsp;health&nbsp; &nbsp;and&nbsp; &nbsp;existing disease, if any, disclosed by the insured in the proposal form&nbsp; &nbsp;before&nbsp; &nbsp;issuing&nbsp; &nbsp;the&nbsp; &nbsp;insurance&nbsp; &nbsp;policy.&nbsp; &nbsp;Once&nbsp; &nbsp;the policy&nbsp; &nbsp;has&nbsp; &nbsp;been&nbsp; &nbsp;issued&nbsp; &nbsp;after&nbsp; &nbsp;assessing&nbsp; &nbsp;the&nbsp; &nbsp;medical condition of the insured, the insurer cannot repudiate the claim by citing an existing medical condition which was&nbsp; &nbsp;disclosed&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;insured&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;proposal&nbsp; &nbsp;form, which condition has led to a particular risk in respect of which the claim has been made by the insured.&nbsp;</b></p><p><b>vii) In&nbsp; other words,&nbsp; a prudent insurer&nbsp; has&nbsp; to&nbsp; gauge&nbsp; the possible risk that the policy would have to cover and accordingly decide to either accept the proposal form and issue a policy or decline to do so. Such an exercise is dependant on the queries made in the proposal form and&nbsp; &nbsp;the&nbsp; &nbsp;answer&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;said&nbsp; &nbsp;queries&nbsp; &nbsp;given&nbsp; &nbsp;by&nbsp; &nbsp;the proposer.</b></p><p><b>60. In the instant case, since the appellant herein answered query no. 1 in the affirmative and query no. 4 and 5 in the negative it implies that he did not suffer from any illness or disease up to the date of making his proposal apart from what had been disclosed by him,&nbsp; &nbsp;namely&nbsp; &nbsp;diabetes&nbsp; &nbsp;mellitus­II.&nbsp; &nbsp;The&nbsp; &nbsp;respondent&nbsp; &nbsp;insurer&nbsp; &nbsp;being appraised about the said medical condition of the appellant, issued policy&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;appellant&nbsp; &nbsp;herein.&nbsp; &nbsp;The&nbsp; &nbsp;respondent&nbsp; &nbsp;insurer&nbsp; &nbsp;did&nbsp; &nbsp;not consider the said medical condition of the appellant as a risk factor for any possible cardiac ailment during the term of the policy so as to decline acceptance of the proposal form and issuance of the mediclaim policy.&nbsp; &nbsp;Also, report of the ECG was considered by one of the panel doctors&nbsp; &nbsp;of&nbsp; &nbsp;respondent­insurer&nbsp; &nbsp;and&nbsp; &nbsp;having&nbsp; &nbsp;found&nbsp; &nbsp;the&nbsp; &nbsp;same&nbsp; &nbsp;to&nbsp; &nbsp;be normal, the policy was issued to the appellant.</b></p><p><b>....If the proposer had no knowledge of any ailment he had, obviously there could be no disclosure of any ailment or sickness which would require medical attention whilst on tour abroad.&nbsp;</b></p><p><b>66.&nbsp; Viewed&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;aforesaid&nbsp; &nbsp;perspective,&nbsp; &nbsp;it&nbsp; &nbsp;is&nbsp; &nbsp;held&nbsp; &nbsp;that&nbsp; &nbsp;the respondent insurance company could not have repudiated the policy on&nbsp; &nbsp;the&nbsp; &nbsp;ground&nbsp; &nbsp;that&nbsp; &nbsp;acute&nbsp; &nbsp;myocardial&nbsp; &nbsp;infraction&nbsp; &nbsp;suffered&nbsp; &nbsp;by&nbsp; &nbsp;the appellant on landing at San Francisco, USA was a “pre­existing and related&nbsp; &nbsp;complication”&nbsp; which&nbsp; &nbsp;was&nbsp; &nbsp;excluded&nbsp; &nbsp;under&nbsp; &nbsp;the&nbsp; &nbsp;policy.&nbsp; &nbsp;The insurer&nbsp; &nbsp;was&nbsp; &nbsp;informed&nbsp; &nbsp;about&nbsp; &nbsp;the&nbsp; &nbsp;pre­existing&nbsp; &nbsp;condition&nbsp; &nbsp;of&nbsp; &nbsp;the appellant, namely, diabetes mallitus­II and it was for insurer to gauge a related complication under the policy as a prudent insurer and then issue&nbsp; &nbsp;the&nbsp; &nbsp;policy&nbsp; &nbsp;when&nbsp; &nbsp;satisfied.&nbsp; &nbsp;In&nbsp; &nbsp;the&nbsp; &nbsp;absence&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;same,&nbsp; &nbsp;the treatment availed by the appellant for acute myocardial infraction in USA&nbsp; &nbsp;could&nbsp; &nbsp;not&nbsp; &nbsp;have&nbsp; &nbsp;been&nbsp; &nbsp;termed&nbsp; &nbsp;as&nbsp; &nbsp;a&nbsp; &nbsp;direct&nbsp; &nbsp;offshoot&nbsp; &nbsp;of hyperlipidaemia and diabetes mellitus so as to be labelled as a preexisting disease or illness which the appellant suffered from and had not disclosed the same.&nbsp;</b></p><p><b>69.&nbsp; The&nbsp; &nbsp;object&nbsp; &nbsp;of&nbsp; &nbsp;seeking&nbsp; &nbsp;a&nbsp; &nbsp;mediclaim&nbsp; &nbsp;policy&nbsp; &nbsp;is&nbsp; &nbsp;to&nbsp; &nbsp;seek indemnification in respect of a sudden illness or sickness which is not expected or imminent and which may occur overseas. If the insured suffers a sudden sickness or ailment which is not expressly excluded under the&nbsp; policy, a duty is&nbsp; cast on the&nbsp; insurer to&nbsp; indemnify the appellant for the expenses incurred thereunder.</b></p><p><b>The appeal is allowed&nbsp;</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'd8b431f25eb4e0c72f6cdca80dda2596.JPG', '8032e5f581fef3dbe5df847ab6a1fcff.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-07', 1, '', '', '2021-12-07 18:39:40', '2021-12-07 18:39:40'),
(1209, 'AvK3k9iZFSmwwac2C1DFCsOHI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Statutory authority should inform citizens the availability of remedy of appeal or revision in law against it’s order and also the period of  limitation  prescribed therefor\'\'. Karnataka High Court directs Govt to issue notification in this regard. ', '<p><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">B. Y. Veena vs Tahasildar<br></span><b>Writ Petition 36890 of 2018 decided on 10 November 2021<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">a) The impugned Endorsements were issued on 02.06.2018; the Writ Petition was filed on 25.8.2018 and now more than three years have lapsed; these&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Endorsements are in a printed format; they do not tell the poor citizen that she has a right&nbsp; of&nbsp; appeal&nbsp; against&nbsp; the&nbsp; same, and that is how she has landed in&nbsp; the&nbsp; Writ Court;&nbsp; this important information was required for taking a pragmatic decision as to whether she should avail the appellate remedy or go for the writ remedy, the latter being arguably expensive in terms of time, money &amp; energy.</b><br></p><p><b>b) Every statutory authority should tell the citizen as to the availability of remedy of appeal or revision in law against it’s order and also the period of&nbsp; limitation&nbsp; prescribed therefor; when that is not disclosed in the order that comes eventually to the Writ Court for challenge, the answering respondent whose action is put&nbsp; in&nbsp; challenge&nbsp; shall not be heard to say that the writ petitioner has an alternate remedy and he should therefore be&nbsp; relegated&nbsp; to the same; every citizen has an indefeasible right to information of the kind and that the corresponding public duty heavily lies on the authorities concerned; in fact, this Court has been noticing several&nbsp; such&nbsp; cases that are piling&nbsp; up in the docket here, in the absence of citizens being not told about the availability of statutory or departmental remedy; costs need to be imposed on the erring authorities whose impugned acts drive the citizens to this court,&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">unnecessarily when they could have&nbsp; availed&nbsp; other&nbsp; remedies.</b></p><p><b>In the above circumstances, this writ&nbsp; petition succeeds; a Writ of Certiorari issues quashing all the impugned Endorsements; the respondent - Tahsildar is directed to issue the Heirship Certificate to the petitioner within four weeks failing which he shall personally pay her Rs.1,000/- per day of delay brooked.</b></p><p><b>The Registry shall send a copy of this order to&nbsp; the Chief Secretary, Government of Karnataka, Bangalore to notify to all the departments about the requirement of stating in their orders as to the availability of remedy of appeal or revision or&nbsp; the departmental&nbsp; recourse,&nbsp; in terms&nbsp; of extant law.</b></p><p><b><br></b></p><p><br></p>', '84f6d811d67e29e7d5160dce389d96f9.jpg', 'f5a53e724c2cc1652ce60253f7dc7346.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-07', 1, '', '', '2021-12-08 02:40:10', '2021-12-08 02:40:10'),
(1210, 'j57rgARxugwmp09cgMa5mGbjN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Societies Registration Act, 1960. Though the Registrar can initiate suo motu enquiry against a society, his knowledge about irregularity has to be backed by prima facie material and not mere allegations. Karnataka High Court.  ', '<p><span style=\"font-weight: bolder;\">Mohd Mahemood Masala and others vs State of Karnataka and others.<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; font-weight: bolder;\">Writ Petition 200826 of 2019 decided on 1 December 2021<br></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The petitioners claim to be Members of one Anjuman Urdu Education Teachers and Parents Association, Shahabad&nbsp; (hereinafter&nbsp; referred&nbsp; to&nbsp; as&nbsp; `the&nbsp; Society\',&nbsp; for short). Respondent No.2 is said to be the President of the Society and respondent No.3 is said to be the General Secretary of the Society. It is further stated that the society is registered under the provisions of the Karnataka Societies Registration Act, 1960. Aggrieved by the functioning of the society, the petitioners have made a request to respondent No.6 to take necessary action against the society. Respondent No.6 in that regard had issued an endorsement dated 27.11.2017 vide Annexure - E to the writ petition wherein, it has been stated that the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">allegations in the notice are very vague and as the representation is not supported by 1/3rd of the Members of the Society, it cannot be acceded to. Aggrieved by the&nbsp; said endorsement, the petitioners have filed the instant writ petition.&nbsp;&nbsp;</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; font-weight: bolder;\"><br></span></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Thus, the Registrar has to necessarily hold an enquiry into the constitution, working and financial condition of the registered Society, if the demand is made by not less than 1/3rd of the Members of the Society. In addition to it, the Registrar may on his own motion can hold an enquiry if he comes to know about the irregularities. In other words, even though the demand is not made by 1/3rd Membbers of the Society, if it comes to the knowledge of the Registrar about the irregularities in a Society, he is duty bound to conduct an enquiry into the constitution, working and financial condition of the registered Society as contemplated under Section 25 (1) of the Karnataka Societies Registration Act, 1960. However, knowledge has to be backed by prima facie material to&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">show the irregularity and not a mere allegation by some of the Members or a stranger to the Society.</b><br></p><p><b><br></b></p><p><b>&nbsp;</b></p><div><br></div>', '88deeef82f1910a1f92ff3f9097b0db4.jpg', 'ef131fc0c8f327477704b2ecf63b7d9a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-07', 1, '', '', '2021-12-08 03:06:05', '2021-12-08 03:06:05'),
(1211, 'LehlHQvt9JmVNaphAC5QVzuca', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Interim injunction against punishment in domestic enquiry ought to be granted when there is breach of principles of natural justice and unfairness in domestic enquiry. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Suraj Narredu vs Bangalore Turf Club Limited <br>Miscellaneous First Appeal 4323 of 2021 decided on 10 November 2021</span></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Aggrieved by the rejection of his application for temporary injunction, the plaintiff in O.S.No.3797/2021 has preferred the above appeal.</b><span style=\"font-weight: bolder;\"><br></span></p><p><b>22. Though both side relied on several judgments with regard to the scope of interference by the Appellate Court in an order passed under Order XXXIX Rules 1 and&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2 CPC and the cardinal principles of law in exercising powers under Order XXXIX Rules 1 and 2 CPC, the basic principles enunciated in all the judgments are as follows:</b></p><p><b>(i) The order granting or rejecting the relief of temporary injunction being discretionary that cannot be interfered in appeal unless it is shown that the order suffers the vice of perversity, arbitrariness or capriciousness.</b></p><p><b>(ii) Non-consideration of the relevant materials produced before it and not adhering to the basic legal principles for grant or rejection of the relief of injunction amounts to perversity.</b></p><p><b>(iii) In considering the application for temporary injunction, the following conditions shall be satisfied:</b></p><p><b>(a) The applicant has made out prima-facie case.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Prima-facie case means prima-facie case of legal right of the applicant and injury to such right. That the case of the plaintiff is not vexatious and there is case to go for trial;</b></p><p><b>(b) Balance of convenience lies in favour of the applicant.</b></p><p><b>(c) If temporary injunction is not granted, the applicant will be put to irreparable injury;</b></p><p><b>23. In the light of such principle, this Court has to see whether the trial Court was justified in holding that the plaintiff/appellant has failed to make out prima-facie case.</b></p><p><b>24. The order challenged in the suit being an order of punishment in the domestic enquiry, scope of interference by the Civil Court is very limited. For such interference it should be shown that the Disciplinary Authority had adopted an unfair mode to reach such&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">conclusion, order is fundamentally and inherently wrong. Breach of principles of natural justice is one form of unfairness.</b></p><p><b>25. This Court in Prakash Srivatsava’s case referred to supra relied upon by Sri S.S.Naganand, learned Senior Counsel as well as by the trial Court though held that there should not be hasty interference in the domestic trials, it was further held that the orders which are inherently and fundamentally wrong are exception to the general rule. It was further held that barring small category of cases wherein straightaway demonstrated that the procedure or the orders passed are so wrong, so illegal or so inherently perverse that they would have to be set aside at later point of time, interference in this class of proceedings would hardly be justified particularly at the interim stage.</b></p><p><b>26. In para 8 of the judgment in Atlas Cycle (Haryana)&nbsp; Ltd.&nbsp; referred&nbsp; to&nbsp; supra&nbsp; and&nbsp; relied&nbsp; on&nbsp; &nbsp;by Sri Udaya Holla, learned Senior Counsel it was held that in domestic enquiry, delinquent shall be expelled only in&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the manner provided by the Rules. It was further held that though the jurisdiction of the Civil Courts is limited in such cases and it cannot sit as Court of appeal over the decision of the Disciplinary Authority, the Court can set aside the order of such body if such body acts without jurisdiction or it does not act in good faith or acts in violation of principles of natural justice. It was further held that strict observance of rules of principles of natural justice must be followed before passing any adverse order against the person in such domestic enquiry.</b></p><p><b>27. In para 4 of the judgment in Meenglas Tea Estate’s case referred to supra, the Hon’ble Supreme Court held that the enquiry was vitiated because it was not held in accordance with the principles of natural justice. It was further held the elementary principle is that a person required to answer the charge must know not only the accusation but also the testimony by which accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put relevant questions by way of cross-examination as he&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">desires. It was further held that, that is the barest requirement of an enquiry of such character and the said requirement must be substantially fulfilled before the result of the enquiry can be accepted.</b></p><p><b>28. It is settled principle of law that proceedings to prove charge of an offence or indiscipline shall take place in the presence or hearing of the accused/delinquent.</b></p><p><b>35. One more aspect the trial Court failed to notice is that the matter was remanded to the Stewards club to hold fresh enquiry and then pass order. The Stewards club did not find it necessary to summon the appellant and to conduct further enquiry in his presence before holding that the Board of Appeal could not have remanded the matter to the Stewards Club. The Stewards Club resubmitted the records and the Board of Appeal said to have recorded the depositions of Irfan Ghatala trainer of the horse, veterinary medical officer, Stipendiary Stewards and the appellant. The records produced by both side show that the proceedings of the Stewards Club as well as the Board of Appeal were not furnished to the appellant promptly.</b></p><p><b>39.All the above facts and circumstances go to show that prima-facie there was no adherence to the principles of natural justice and the enquiry was not fair and proper. As already pointed out, what is required to be tested in such cases is not the decision reached, but the means adopted to reach such decision. The trial Court in the impugned order did not refer to and discuss all the above said documents and failed to consider them.</b></p><p><b>49. For the aforesaid reasons, the impugned order of the trial Court suffers the vice of perversity and arbitrariness and calls for interference. The appeal is allowed.</b></p><p><br></p>', '72dfdeb0bf94a54300695496dd10634d.jpg', 'e6231f72f07b2b9c07f41210cb04bc84.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-07', 1, '', '', '2021-12-08 04:14:45', '2021-12-08 04:14:45'),
(1212, 'be3pMTLoWNBDqA0fUQe7Ib8Vz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Consumer Protection Act, 2019. National Commission can direct deposit of entire amount/higher than 50 per cent while staying order of the State Commission, subject to passing speaking order. Supreme Court. ', '<p><b>Manohar Infrastructure and\r\nConstructions Private Limited vs Sanjeev Kumar Sharma and Ors.<br></b><span style=\"font-weight: bolder;\">Civil Appeal 7098 of 2021 decided on 7 December 2021</span><b><br>Justice M.R. Shah and Justice B.V. Nagarathna&nbsp;<br></b></p><p><b>1. Feeling aggrieved and dissatisfied with the impugned order passed\r\nby the National Consumer Disputes Redressal Commission, New Delhi\r\n(hereinafter referred to as “National Commission”) dated 27.09.2021 in\r\nI.A. No. 3621 of 2021 in First Appeal No. 330 of 2021 by which, the National Commission, while staying the order passed by the State\r\nCommission has directed the appellant to deposit the entire decretal\r\namount with the State Commission, the original appellant – builder –\r\nM/s. Manohar Infrastructure and Constructions Private Limited, has\r\npreferred the Civil Appeal No. 7098 of 2021.<br></b></p><p><b>9. The short question which is posed for consideration of this Court\r\nis:\r\n “Whether in an appeal under Section 51 of the Consumer\r\nProtection Act, 2019 and while considering the stay application to stay\r\nthe order passed by the State Commission, the National Commission&nbsp;can pass an order to deposit the entire amount and/or any amount\r\nhigher than 50 per cent of the amount in terms of the order of the State\r\nCommission while entertaining the appeal under Section 51 of the Act,\r\n2019?”<br></b></p><p><b>11. On a fair reading of Section 51 of the Act, 2019, more particularly,\r\nsecond proviso to Section 51, it appears that the appellant(s) in an\r\nappeal against the order passed by the State Commission may prefer an\r\nappeal, however, before the appeal is entertained by the National\r\nCommission, the appellant(s) has to deposit 50 per cent of the amount.\r\nSo, it is the pre-condition to deposit 50 per cent of the amount as\r\nordered by the State Commission before his appeal is entertained by the\r\nNational Commission. Therefore, it is a condition precedent to deposit\r\n50% of the amount before his appeal is entertained by the National\r\nCommission. However, that does not take away the jurisdiction of the\r\nNational Commission to order to deposit the entire amount and or any\r\namount higher than 50 per cent of the amount while considering the stay\r\napplication to stay the order passed by the State Commission. Rules for\r\nentertainment of an appeal on deposit of 50 per cent of the amount\r\nordered by the State Commission, which is a statutory pre-deposit and&nbsp;the grant of interim order on the stay application subject to deposit of\r\nfurther amount are distinct and different. Pre-deposit condition as per\r\nsecond proviso to Section 51 has no nexus with the grant of interim\r\norder of stay by the National Commission subject to deposit of the\r\namount awarded by the State Commission.</b></p><p><b>13. We are in complete agreement with the view taken by this Court in\r\nthe case of Shreenath Corporation and Ors. (supra). Therefore, it is\r\nheld that National Commission can pass an order to deposit the entire\r\namount and/or any amount higher than 50 per cent of the amount in\r\nterms of the order of the State Commission while staying the order\r\npassed by the State commission.\r\n</b></p><p><b>However, at the same time, while considering the stay application\r\nagainst the order passed by the State Commission and while passing\r\nthe order to deposit the entire amount and/or any amount higher than 50\r\nper cent of the amount, the National Commission has to assign some\r\nreasons and pass a speaking order why the conditional stay is being\r\ngranted on condition of deposit of the entire amount and/or any amount\r\nhigher than 50 per cent of the amount. Such an order on the stay\r\napplication is not to be passed mechanically. Even in the case of\r\nShreenath Corporation and Ors. (supra), it is observed that if the\r\nNational Commission after hearing the appeal of the parties in its\r\ndiscretion wants to stay the amount awarded by the State Commission,\r\nit is open to the National Commission to pass an appropriate interim&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">order including a conditional order of stay. The order passed by the\r\nState Commission directing the appellant to refund the amount and/or\r\npay any amount higher than 50 per cent can be said to be akin to a\r\nmoney decree. Even as per Order XLI Rule 5, the general rule is that\r\nnormally there shall not be any unconditional stay of a money decree,\r\nhowever, at the same time, the Appellate Court may pass an appropriate\r\nconditional order while staying the impugned decree depending upon the\r\nfacts of the case and by giving cogent reasons. Therefore, while\r\nconsidering the stay application requesting to stay the order passed by\r\nthe State Commission and as observed and held hereinabove, the\r\nNational Commission can pass an order to deposit the entire amount\r\nand/or any amount higher than 50 per cent of the amount while staying\r\nthe order passed by the State commission, however, the National\r\nCommission has to pass a speaking order giving some reasons why in\r\nthe facts of the particular case the conditional stay of the order passed\r\nby the State Commission is to be passed subject to deposit of the entire\r\namount and/or any amount higher than 50 per cent of the amount\r\nawarded by the State Commission and that too after giving an\r\nopportunity to the appellant as well as to the respondent. The order on\r\nthe stay application is not to be passed mechanically. It must reflect an\r\napplication of mind by the National Commission why the order passed by\r\nthe State Commission is to be stayed on condition of deposit of the&nbsp;entire amount and/or any amount higher than 50 per cent of the amount\r\nawarded by the State Commission. However, at the same time, there is\r\nno discretion at all to stay the order passed by the State Commission\r\nsubject to deposit of any amount less than 50 per cent of the amount\r\nwhich is required to be deposited as a pre-deposit before the appeal is\r\nentertained as per second proviso to Section 51 of the Act, 2019.&nbsp;&nbsp;</span></b></p><p><b> 15. The sum and substance of the above discussion and our\r\nconclusions would be that:-\r\n</b></p><p><b>(i) pre-deposit of 50 per cent of amount as ordered by the State\r\nCommission under second proviso to Section 51 of the\r\nConsumer Protection Act, 2019 is mandatory for\r\nentertainment of an appeal by the National Commission;\r\n</b></p><p><b>(ii) the object of the said pre-deposit condition is to avoid\r\nfrivolous appeals;\r\n</b></p><p><b>(iii) the said pre-deposit condition has no nexus with the grant of\r\nstay by the National Commission;\r\n</b></p><p><b>(iv) while considering the stay application in staying the order\r\npassed by the State Commission, the National Commission\r\ncan grant a conditional stay directing the appellant(s) to\r\ndeposit the entire amount and/or any amount higher than 50\r\nper cent of the amount in terms of the order of the State\r\nCommission;\r\n</b></p><p><b>(v) however, at the same time, the National Commission has to\r\nassign some cogent reasons and/or pass a speaking order\r\nwhen the conditional stay of the order passed by the State\r\nCommission is passed subject to deposit of the entire\r\namount and/or any amount higher than 50 per cent of the\r\namount either as an ex parte order or after hearing both\r\nsides and considering the facts and circumstances of the\r\ncase. </b></p><p><b>(vi) Thus, the National Commission can grant a conditional stay\r\nof the order passed by the State Commission on deposit of\r\nthe entire amount and/or any amount higher than 50 per cent\r\nof the amount as ordered by the State Commission in the\r\naforesaid manner.&nbsp;</b><br></p>', '1fd5b19b23e5855d28aea4a69b1f097d.JPG', 'cb2d9f531a4ae6cbd1c9a78fe1b34689.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-07', 1, '', '', '2021-12-08 04:46:48', '2021-12-08 04:50:36'),
(1213, 'ZqILCMGKgx7lTY0Igj2JHGC60', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Consider constituting ‘Motor Vehicle Appellate Tribunals’ to decide the appeals challenging the award of Motor Vehicle Tribunals to reduce pendency before High Courts.\'\' Supreme Court requests Ministry of Law and Justice to examine the matter.', '<p><b>Rasmita Biswal and others vs Divisional Manager, National Insurance Company Ltd and another <br>Civil Appeal 7549 of 2021 decided on 8 December 2021<br>Justice S. Abdul Nazeer and Justice Krishna Murari <br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2018/25623/25623_2018_7_1502_31926_Judgement_08-Dec-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/25623/25623_2018_7_1502_31926_Judgement_08-Dec-2021.pdf</a></span><br></b></p><p><b>19. Before parting with the judgment, we may notice that a large number of\r\nclaim petitions, under the provisions of the Motor Vehicles Act, 1988 are being\r\nfiled before the various Claims Tribunals established thereunder throughout the\r\ncountry. Against the awards of the Tribunals, appeals are filed under Section\r\n173 of the Motor Vehicles Act, 1988 before the relevant High Court, either by\r\nthe claimants or by the insurers and owners of the offending vehicles. Large\r\nnumber of such appeals are pending before the various High Courts. Having\r\nregard to the above, we are of the view that in order to curtail the pendency\r\nbefore the High Courts and for speedy disposal of the appeals concerning\r\npayment of compensation to the victims of road accident, it would be just and\r\nproper to consider constituting ‘Motor Vehicle Appellate Tribunals’ by\r\namending Section 173 of the Motor Vehicles Act so that the appeals challenging the award of a Tribunal could be filed before the Appellate Tribunal so\r\nconstituted.\r\n</b></p><p><b>20. The various Benches of such an Appellate Tribunal could consist of two\r\nSenior District Judges. To ensure access to justice and to avoid pendency, it is\r\nalso proper to consider setting up Benches of the Appellate Tribunal in various\r\nregional cities, in addition to the capital city of each State as may be indicated\r\nby the relevant High Court. For this purpose, appropriate rules governing the\r\nprocedure of the Appellate Tribunal may also be framed. No further appeal\r\nagainst the order of the Appellate Tribunal need be provided. If any of the party\r\nis aggrieved by the order of the Appellate Tribunal, he can always invoke the\r\nwrit jurisdiction of the concerned High Court for appropriate reliefs.\r\nDepartment of Justice, Ministry of Law and Justice, is requested to examine this\r\nmatter.\r\n</b></p><p><b>21. The Registry is directed to send a copy of this Judgement to the Secretary,\r\nDepartment of Justice, Ministry of Law and Justice, forthwith. </b><br></p>', '85c285522f521e875c0ae473794181b0.JPG', '6369dd1c2506a38b96f5ab7c6a537c6b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-08', 1, '', '', '2021-12-08 21:27:43', '2021-12-08 21:29:19'),
(1214, '3eKrmDVkGt3lTqWCEACNBHrRo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Writ Court can dismiss the action without adjudicating on merits if it finds suppression of relevant material or misleading the court by the applicant. Supreme Court reiterates.', '<p><b>K. Jayaram and others vs Bangalore Development Authority and others <br>Civil Appeal 7550-7553 of 2021 decided on 8 December 2021<br>Justice S. Abdul Nazeer and Justice Krishna Murari<br>Judgment <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Link: <a href=\"https://main.sci.gov.in/supremecourt/2013/12242/12242_2013_7_1501_31926_Judgement_08-Dec-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2013/12242/12242_2013_7_1501_31926_Judgement_08-Dec-2021.pdf</a></span></b></p><p><b>12. It is well-settled that the jurisdiction exercised by the High Court under\r\nArticle 226 of the Constitution of India is extraordinary, equitable and\r\ndiscretionary and it is imperative that the petitioner approaching the writ court\r\nmust come with clean hands and put forward all facts before the Court without\r\nconcealing or suppressing anything. A litigant is bound to state all facts which are\r\nrelevant to the litigation. If he withholds some vital or relevant material in order to\r\ngain advantage over the other side then he would be guilty of playing fraud with\r\nthe court as well as with the opposite parties which cannot be countenanced.</b></p><p><b>13. This Court in Prestige Lights Ltd. V. State Bank of India (2007) 8 SCC 449 has held that a\r\nprerogative remedy is not available as a matter of course. In exercising\r\nextraordinary power, a writ court would indeed bear in mind the conduct of the\r\nparty which is invoking such jurisdiction. If the applicant does not disclose full\r\nfacts or suppresses relevant materials or is otherwise guilty of misleading the court,\r\nthe court may dismiss the action without adjudicating the matter.<br></b></p><p><b>14. In Udyami Evam Khadi Gramodyog Welfare Sanstha and Another v.\r\nState of Uttar Pradesh and Others (2008) 1 SCC 560 , this Court has reiterated that the writ remedy\r\nis an equitable one and a person approaching a superior court must come with a\r\npair of clean hands. Such person should not suppress any material fact but also should not take recourse to legal proceedings over and over again which amounts\r\nto abuse of the process of law.\r\n<br></b></p><p><b>15. In K.D. Sharma v. Steel Authority of India Limited and Others (2008)12 SCC 481, it was\r\nheld thus: <br></b></p><p><b><i>36. A prerogative remedy is not a matter of course. While exercising\r\nextraordinary power a writ court would certainly bear in mind the\r\nconduct of the party who invokes the jurisdiction of the court. If the\r\napplicant makes a false statement or suppresses material fact or\r\nattempts to mislead the court, the court may dismiss the action on that\r\nground alone and may refuse to enter into the merits of the case by\r\nstating, “We will not listen to your application because of what you\r\nhave done.” The rule has been evolved in the larger public interest to\r\ndeter unscrupulous litigants from abusing the process of court by\r\ndeceiving it</i><br></b></p><p><b>16. It is necessary for us to state here that in order to check multiplicity of\r\nproceedings pertaining to the same subject-matter and more importantly to stop the\r\nmenace of soliciting inconsistent orders through different judicial forums by\r\nsuppressing material facts either by remaining silent or by making misleading\r\nstatements in the pleadings in order to escape the liability of making a false\r\nstatement, we are of the view that the parties have to disclose the details of all legal\r\nproceedings and litigations either past or present concerning any part of the\r\nsubject-matter of dispute which is within their knowledge. In case, according to\r\nthe parties to the dispute, no legal proceedings or court litigations was or is\r\npending, they have to mandatorily state so in their pleadings in order to resolve the\r\ndispute between the parties in accordance with law.<br></b></p><p><br></p>', 'ce832df42beeb1741a08fd9b1eefaceb.jpg', '563cc08bbb52c0132b3046b93a81d8ae.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-08', 1, '', '', '2021-12-08 21:55:12', '2021-12-08 21:56:26');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1215, '0M5RGBkCRo6DY6VyIK6FVq3Pn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Honour power purchase agreements and make prompt, regular and timely payments to power generators without any delay\'\'. Karnataka High Court directs ESCOMs while holding writ petitions maintainable to enforce PPAs. ', '<p><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Renew Power Private Limited and another vs State of Karnataka and others.<br>Writ Petition 5703 of 2020 and connected matters decided on 2 December 2021</span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"https://karnatakajudiciary.kar.nic.in/judgements/WP-5703-2020-cw-ENERGY.pdf\" target=\"_blank\">https://karnatakajudiciary.kar.nic.in/judgements/WP-5703-2020-cw-ENERGY.pdf</a></b><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></p><p><b>These batch of writ petitions which are filed by the\r\npetitioners who are renewable energy generating\r\ncompanies involved in the business of independent power\r\nproduction and establishing and operating power plants,\r\nwhile petitioners in some of the petitions are operating solar\r\npower plants, petitioners in the other petitions are operating\r\nwind power plants. The subject matter of all the petitions\r\nare Power Purchase Agreements (PPAs) entered into\r\nbetween the petitioners and the various Electricity Supply\r\nCompanies (ESCOMs), who are arrayed as respondent\r\nNo.2 in these petitions. </b></p><p><b>8. The following points arise for consideration in the\r\npresent petitions;\r\n<br>I. Whether the present petitions in relation to a\r\ncontract i.e., PPAs between the Petitioner and\r\nthe Respondent No. 2-ESCOMs are\r\nmaintainable under Article 226 of Constitution\r\nof India ?\r\n<br>II. Whether the present petitions are maintainable\r\nin view of dispute redressal mechanism\r\ncontained in the PPAs ?\r\n<br>III. Whether the present petitions are maintainable\r\nin view of Section 86(1)(f) of the Electricity Act,\r\n2003 ?\r\n<br>IV. Whether the Petitioners are entitled to the\r\nreliefs sought in the petition? <br></b></p><p><b>8. (iv) Section 61 of the said Act of 2003, inter-alia,\r\nrequires the KERC to ensure that (a) generation,\r\ntransmission, distribution and supply of electricity are\r\nconducted on commercial principles; (b) the factors which\r\nwould encourage competition, efficiency, economical use of\r\nthe resources, good performance, and optimum\r\ninvestments are promoted; and (c) co-generation and\r\ngeneration of electricity from renewable sources of energy\r\nis promoted.  <br></b></p><p><b>8. (vi) The question with regard to the jurisdiction of this\r\nCourt to exercise its extraordinary jurisdiction under Article\r\n226 of the Constitution of India in contractual matters in\r\nrelation to the PPAs entered into between the petitioners\r\nand Respondent No.2-ESCOMs which is a ‘State’ within\r\nthe meaning of Article 12, is well settled by several\r\ndecisions of the Apex Court and this Court. In the case of\r\nCentury Spinning and Manufacturing Company Ltd. &\r\nOrs. Vs The Ulhasnagar Municipal Council & Anr.-1970\r\n(1) SCC 58..........<br></b></p><p><b>Accordingly, Point No.1 is answered in favour of the\r\nPetitioners by holding that the present petitions are\r\nmaintainable before this Court in the exercise of its\r\njurisdiction under Article 226 of the Constitution of India. <br></b></p><p><b>(iv) As stated supra, before either party has to take\r\nsteps to seek recourse to the dispute redressal mechanism\r\nprovided in the PPAs, it is essential that there exists a\r\ndispute which requires to be resolved; the said dispute\r\nredressal mechanism provides for resolution of disputes by\r\nway of amicable settlement/adjudication/arbitration, as the\r\ncase may be, in accordance with the aforesaid Clause\r\nNo.18(Solar) and Clause No.10(Wind). It cannot be\r\ngainsaid that dispute resolution by way of amicable\r\nsettlement/adjudication/arbitration presupposes existence\r\nof a dispute raised by the Respondent No.2-ESCOMs. In the case of Major (Retd) Inder Singh Rekhi v. Delhi\r\nDevelopment Authority (1988) 2 SCC 338, the Apex\r\nCourt has held that existence of a dispute necessarily\r\nrequires an assertion of claim by one party and the denial\r\nof the claim by the other party; in the instant case, in the\r\nabsence of any dispute between the petitioner and\r\nRespondent No.2 with regard to the PPAs, the contention\r\nof the Respondent No.2 that the petitions are not\r\nmaintainable in view of the dispute resolution mechanism\r\ncontained in the PPAs is clearly devoid of merit.\r\n</b></p><p><b>Accordingly, Point No.2 is also answered in favour of\r\nthe petitioners by holding that the present petitions are\r\nmaintainable before this Court in the exercise of its\r\nextraordinary jurisdiction under Article 226 of the\r\nConstitution of India.  </b></p><p><b>(iii) A plain reading of Section 86(1)(f) will indicate\r\nthat in order to invoke the said provision, it is absolutely\r\nessential for an actual dispute to exist between the\r\npetitioners and the Respondent No.2-ESCOMs; in other\r\nwords, existence of a dispute is a sine-qua-non for the\r\npetitioners to invoke the said provision and seek redressal\r\nof their grievances; it follows there from that in the absence\r\nof any dispute, Section 86(1)(f) would neither get attracted\r\nnor become applicable in the facts of the instant case.</b></p><p><b>(v) The judgement of the Hon’ble Supreme Court in\r\nthe case of Gujarat Urja Vikas Nigam Limited v. Essar\r\nPower Ltd - (2008) 4 SCC 755 relied upon by the\r\nRespondent No.2 pertains to the powers of the State\r\nElectricity Regulatory Commission under Section 86 (1) of the Electricity Act to refer disputes to arbitration. So also,\r\nthe judgement of the Apex Court in the case of State of\r\nGujarat v. Utility Users Welfare Association –(2018) 6\r\nSCC 21 pertains to the nature of the functions of the State\r\nElectricity Regulatory Commissions and the need for a\r\njudicial member to possess legal qualifications and to\r\nmandatorily be part of the State Electricity Regulatory\r\nCommissions, to ensure that the adjudicatory functions of\r\nthe State Electricity Regulatory Commissions are duly\r\ndischarged; both these judgments are clearly inapplicable\r\nto the facts of the instant case given the fact that no dispute\r\nhas arisen or been raised between the petitioner and\r\nRespondent No.2-ESCOMs with regard their obligations\r\nand liability to honour the terms and conditions of the\r\nPPAs.</b></p><p><b>(vi) Similarly, the decision in the Gujarat Urja Vikas\r\nNigam Limited v. Solar Semiconductor Power\r\nCompany (India) Pvt Ltd. –(2017) 16 SCC 498 is also\r\ninapplicable to the facts of the present case, as this\r\njudgement pertains to the scope of inherent powers of the\r\nState Commissions and does not limit the powers of this Court under Article 226 of the Constitution of India. The\r\nother judgements cited by the Respondent No.2 are\r\njudgements of the Appellate Tribunal for Electricity which\r\nset out the powers of the KERC, and cannot have a bearing\r\non the writ jurisdiction of this Court. </b></p><p><b>Accordingly, Point No.3 is also answered in favour of\r\nthe petitioners by holding that the present petitions are  maintainable before this Court in the exercise of its\r\nextraordinary jurisdiction under Article 226 of the\r\nConstitution of India.</b></p><p><b> (i) The last question that arises for consideration is\r\nwith regard to the relief’s sought for by the petitioners and\r\nthe orders to be passed/directions to be issued in the\r\npetitions. As stated supra, petitioners seek directions to the\r\nRespondent No.2-ESCOMs to pay the outstanding dues\r\ncovered under the subject bills/invoices to the petitioners as\r\nwell as continue to pay all the amounts in respect of the\r\nbills/invoices raised by the petitioners in future also as per\r\nthe PPAs in addition to directions to be issued to open\r\nirrevocable and revolving letters of credit in favour of the\r\npetitioners towards the payments/dues payable by the\r\nESCOMs. In this context, learned Senior Counsel for the\r\npetitioners submitted that in the interest of all power\r\ngenerating companies as well as the public at large, it is\r\nessential that general guidelines and suitable/appropriate\r\ndirections are issued to all the ESCOMs in the State of Karnataka to honour, discharge and fulfil their obligations\r\nand duties under the PPAs.</b></p><p><b>Accordingly, Point No.4 is answered in favour of the\r\npetitioners by holding that the petitioners are entitled to the\r\nrelief’s sought for in the petitions and necessary directions\r\nand guidelines are to be issued to the ESCOMs.</b></p><p><b>(i) All ESCOMs are directed to honour, discharge and\r\nfulfil their duties, obligations and liabilities under the Power\r\nPurchase Agreements(PPAs) entered into between the\r\nPower Generators and ESCOMs; </b></p><p><b>\r\n(ii) All ESCOMs are directed to henceforth make\r\nprompt, regular and timely payments in favour of the power\r\ngenerators without any delay in relation to all future\r\nbills/invoices of the power generators; </b></p><p><b>(iii) All ESCOMs are also hereby directed to forthwith\r\nopen / renew monthly irrevocable letters of credit in terms\r\nof the PPAs in favour of the power generators for the\r\npurpose of enabling and ensuring payments of all amounts\r\ndue to the power generators from the ESCOMs;  </b><br></p>', 'fddd72967c30197f88ae1b30686308c8.jpg', '36de8590bf07f274de3f86b618d24990.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-08', 1, '', '', '2021-12-09 03:14:40', '2021-12-09 03:19:01'),
(1216, 'nj8NFyYzjmDte4Ds6f18f93YU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. The date of presentation of the cheque is of no consequence provided it is presented within its validity period. Supreme Court. ', '<p><b>K.S. Ranganatha vs Vittal Shetty<br>Criminal Appeal&nbsp;</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>&nbsp;1860&nbsp;of 2011 decided on 8 December 2021<br>Chief Justice N.V. Ramana, Justice A.S. Bopanna and Justice Hima Kohli.&nbsp;</b><br></span></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2010/37825/37825_2010_1_1501_31895_Judgement_08-Dec-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2010/37825/37825_2010_1_1501_31895_Judgement_08-Dec-2021.pdf</a></b></p><p><b>11. The position of law as noted above makes it crystal clear that when a cheque is drawn out and is relied upon by the&nbsp; &nbsp;drawee, it will raise a&nbsp; presumption that it is drawn towards a consideration which is a legally recoverable amount;&nbsp; &nbsp;such presumption of course, is rebuttable&nbsp; &nbsp;by proving to the contrary. The onus is on the accused to raise a probable defence and the standard of proof for rebutting the presumption is on preponderance of probabilities.</b></p><p><b>13. The entire consideration by the learned Trial Judge to arrive&nbsp; &nbsp;at&nbsp; &nbsp;his&nbsp; &nbsp;conclusion&nbsp; &nbsp;was&nbsp; &nbsp;predicated&nbsp; &nbsp;on&nbsp; &nbsp;the&nbsp; &nbsp;allegation levelled by the appellant that an incident had occurred on 20.01.2004 when the respondent is stated to have obtained the cheque and signatures on certain blank papers by using force. Much is made about the respondent having presented the cheque during February 2004 to assume that he would not&nbsp; &nbsp;have&nbsp; &nbsp;waited&nbsp; &nbsp;that&nbsp; &nbsp;long&nbsp; &nbsp;if&nbsp; &nbsp;the&nbsp; &nbsp;cheque&nbsp; &nbsp;was&nbsp; &nbsp;really&nbsp; &nbsp;dated 12.12.2003&nbsp; &nbsp;and&nbsp; &nbsp;was&nbsp; &nbsp;issued&nbsp; &nbsp;earlier.&nbsp; &nbsp;Such&nbsp; &nbsp;an&nbsp; &nbsp;assumption would&nbsp; not&nbsp; be&nbsp; justified&nbsp; when,&nbsp; &nbsp;in&nbsp; fact, the&nbsp; cheque&nbsp; is dated 12.12.2003 and was presented within its period of validity. To assume the incident alleged by the appellant to have occurred on 20.01.2004 to be true, the cheque ought to have been dated on or after 20.01.2004. The date of presentation of the cheque is of no consequence provided it is presented within its validity period. That the alleged offence had been committed by the respondent on 20.01.2004 itself, was considered in C.C. No.6318/2004. When a jurisdictional Court had gone into the very same allegation and had rendered its judgment on&nbsp; &nbsp;06.12.2006,&nbsp; &nbsp;another&nbsp; &nbsp;court&nbsp; &nbsp;exercising&nbsp; &nbsp;co­ordinate jurisdiction could not have brushed it aside lightly.&nbsp;</b></p><p><br></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'd90ec5afe4ff362e657f61cb2228248e.jpg', 'f8890c6043b2959ec7df8bdcfe164e94.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-08', 1, '', '', '2021-12-09 04:39:18', '2021-12-09 04:39:18'),
(1217, 'PX3U1rx1NjjTljJ6cOfvWhXos', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal prosecution under the Factories Act, 1948. Director being occupier/representative of the company, it is NOT necessary to make company also an accused in the prosecution. Karnataka High Court ', '<p><b>Yashihirao Horinouchi vs The Deputy Director of Factories&nbsp;</b></p><p><b>Writ Petition 11451 of 2018 decided on 6 December 2021</b></p><p><b>The petitioner who is the occupier of M/s Toyota Kirloskar Motor Private Limited has filed the subject writ petition calling in question the proceedings in C.C.No.757 of 2017 pending on the file of the Principal Civil Judge and JMFC, Ramanagara initiated under the provisions of the Factories Act, 1948.</b></p><p><b>8.<span style=\"white-space:pre\">	</span>I have given my anxious consideration to the submissions made by the learned Senior Counsel&nbsp; and&nbsp; the learned Additional Government Advocate and have perused the material on record. In furtherance whereof, the points that would arise for my consideration are twofold :–</b></p><p><b>(i)<span style=\"white-space:pre\">	</span>Whether non-arraigning of the Company as&nbsp; an accused would vitiate the proceedings?</b></p><p><b>(ii)<span style=\"white-space:pre\">	</span>Whether an order is required to be passed under Section 7A(2)(c) of the Factories Act, on the reply submitted to the show cause notice to enable the occupier to file an appeal under Section 107 of the Factories Act before registration of the criminal case?</b></p><p><b>9.<span style=\"white-space:pre\">	</span>The afore-narrated facts not being in dispute are not reiterated. The Company is not arrayed as an accused in the impugned proceedings. The law in regard to the Company not being made a party and the complaint getting vitiated on that score is considered by the Apex Court in the case of ANEETA HADA</b></p><p><b>This Court following the aforesaid judgments in the case of B.K.PANDURANGA3 (supra) has quashed the proceedings on the ground that the Company was not arrayed as an accused.</b></p><p><b>Again in the case of VIGNESHWAR GOPAL KRISHNA BHAT4 following the judgment of the Apex Court in the case of ANEETA HADA has quashed the proceedings. This is again reiterated in the case of JOSEPH ZACHARIAH where the proceedings are quashed on the very same ground.</b></p><p><b>The latest in the line of the aforesaid judgments&nbsp; on&nbsp; the said principle is the one that is passed by this Court in MANI K.THOMAS (supra). Therefore, what would emerge in the first blush on placing reliance upon the aforesaid judgments is that without making the Company a party, the private complaint registered by the respondent against the petitioner would not be maintainable, but the issue requires a deeper delving.</b></p><p><b>10. The law as laid down by the Apex Court in the case of ANEETA HADA has been followed by this Court in plethora of judgments. The point that falls for consideration is whether&nbsp; those judgments would straight away cover the present case at hand, which requires interpretation of the Factories Ac</b></p><p><b>12. The provisions of the Factories Act stand on a different footing. It becomes necessary to consider the&nbsp; judgment&nbsp; of&nbsp; the&nbsp; Apex Court in the case of J.K. INDUSTRIES LIMITED.Paragraph 14 considers the purport of the Factories Act. Paragraph 16 deals with objects and reasons of Amendment Act 20 of 1987. Paragraphs 17 and 18 deal with the offence under Section 7. Paragraph 19 interprets Section 7-A. The&nbsp; question&nbsp; that the Apex Court seeks to answer is found at paragraph 32. Paragraph 37 is examination of the Factories Act. Paragraph 62&nbsp; is where the Apex Court sums up its conclusions.&nbsp;</b></p><p><b>Summing up the conclusions, the Apex Court unequivocally&nbsp; holds that in case of a Company which owns the factory&nbsp; it&nbsp; is&nbsp; only one of the Directors of the Company who can be notified as the occupier of the factory for the purpose of the Factories Act and the Company cannot nominate any other employee to be the occupier of the factory. Where the Company has failed to&nbsp; nominate one of its Directors as occupier of the factory, the Inspector of Factories shall be at liberty to proceed against any one of the Directors treating him as deemed occupier of the factory for the purpose of prosecution and punishment.</b></p><p><b>13.<span style=\"white-space:pre\">	</span>The case at hand is whether one of the Directors of the Company is shown to be the occupier. Therefore, in&nbsp; the&nbsp; judgment in the case of J.K. INDUSTRIES LIMITED, the Director is the occupier and the occupier is the representative of the Company. The Company under the Factories Act need not be made an accused as there is no provision under the Factories&nbsp; Act, akin to Negotiable Instruments Act, Equal Remuneration Act, Payment of Gratuity Act, Payment of Wages Act and Minimum Wages Act. Reference to the judgment of the Apex Court in the case of Haryana Financial Corpn. v. Jagdamba Oil Mills5 in the circumstances is apposite, wherein the Apex Court holds that a precedent should not be blindly followed.&nbsp;</b></p><p><b>Thus, the judgments rendered by the Co-ordinate&nbsp; Benches&nbsp; of this Court (supra) or the case of ANEETA HADA would not be applicable to the facts of the case at hand&nbsp; or even the&nbsp; statute&nbsp; that has fallen for consideration in the case at hand.&nbsp;</b></p><p><b>14.<span style=\"white-space:pre\">	</span>Section 2(n) of&nbsp; the&nbsp; Factories Act and its proviso makes&nbsp; &nbsp; it clear that one of the Directors of the company would be responsible for proper implementation of the&nbsp; provisions&nbsp; of&nbsp; the&nbsp; Act. This&nbsp; ensures&nbsp; that&nbsp; more&nbsp; care&nbsp; is&nbsp; taken&nbsp; for&nbsp; the&nbsp; maintenance&nbsp; of the factory and various safety measures prescribed&nbsp; under&nbsp; the Act, so that the health, welfare and safety of the workers are not neglected. It is the&nbsp; occupier&nbsp; who&nbsp; would&nbsp; become&nbsp; responsible&nbsp; for all such acts of a factory.&nbsp; It&nbsp; is&nbsp; not&nbsp; in&nbsp; dispute&nbsp; that&nbsp; the&nbsp; petitioner&nbsp; is the occupier of the factory against whom the allegation is now made. He is the one who&nbsp; exercises&nbsp; ultimate&nbsp; control&nbsp; over&nbsp; the affairs of the factory. The ultimate&nbsp; control&nbsp; exercised&nbsp; over&nbsp; the affairs of the factory cannot be equated with the ultimate control&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">over the affairs of the company. The affairs of the factory relate&nbsp; to the manner in which the factory is to be run and the violation relates to the violations of the Factories Act. A parallel with the judgments rendered interpreting the afore-quoted provisions cannot be made applicable to the case at hand. Therefore, the first point that has arisen for my consideration is answered against the petitioner.</b></p>', 'fb757a09359b0e737c22f3ae788cc1fa.jpg', 'e24716e7a72ff93c545bd3e39ed4f97f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-08', 1, '', '', '2021-12-09 05:11:36', '2021-12-09 05:11:36'),
(1218, 'CzGIUqScqh83yiXTWcxK7wMiV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Merely because some other persons who might have committed the offences, but were not arrayed as accused cannot be a ground to quash the criminal proceedings against the accused who is charge-sheeted after a thorough investigation. Supreme Court.', '<p><b>M/s Suvarna Cooperative Bank Ltd TD vs State of Karnataka and another. <br>Criminal Appeal </b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>1535 of 2021</b></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> decided on 9 December 2021. </b></p><p><b>Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2017/37947/37947_2017_13_1501_31934_Judgement_09-Dec-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2017/37947/37947_2017_13_1501_31934_Judgement_09-Dec-2021.pdf</a></b><br></p><p><b>Justice M.R. Shah and Justice B.V. Nagarathna <br></b></p><p><b>4. We have perused and considered the impugned judgment\r\nand order passed by the High Court and the reasoning given by\r\nthe High Court mentioned in paragraphs 7 and 8 while quashing\r\nthe criminal proceedings against the original accused no.1.\r\nHaving gone through and considered the reasoning given by the\r\nHigh Court while quashing the criminal proceedings against\r\noriginal accused no.1, we are of the opinion that the impugned\r\njudgment and order passed by the High Court quashing the\r\ncriminal proceedings against the private respondent herein –\r\noriginal accused no.1 is unsustainable, both, in law and on facts.\r\nThe High Court has observed that in absence of the officers of the  drawee bank informing the payee’s banker with reference to\r\ndishonour of one of the cheques well within the time stipulated in\r\nthe Clearing House Rules which amounts to offence under\r\nSections 408 and 409 of IPC,without the presence of accused nos.\r\n2 and 3 in the PCR, the charge-sheet could not have been filed\r\nonly against accused no.1. While quashing the criminal\r\nproceedings the High Court has observed in para 8 as under:</b></p><p><b><i>\r\n“8. In the light of the complainant keeping quite in not\r\ntaking any action against incomplete charge sheet,\r\nwhich is filed by the first respondent police in arraigning\r\nonly accused nos. 1 and 6 as accused in\r\nCC.No.22308/2012, the prosecution against two of\r\nthem without the presence of other persons, who are\r\nsaid to have involved in the same, would not be\r\ncomplete charge sheet and the alleged offence would\r\nnot be complete against two of them without there\r\nbeing the accomplice to the said act also being\r\narraigned as the accused. In that view of the matter,\r\nthis Court feel that prosecuting accused nos. 1 and 6 in\r\nthe instant case, in the absence of accused 2 and 3,\r\nwould be of no avail and would not take this matter to\r\nthe logical end. Hence, the same is required to be\r\nquashed.”</i></b></p><p><b>4.1 The aforesaid cannot be a ground to quash the criminal\r\nproceedings against the accused who was charge-sheeted by the\r\nInvestigating Officer after thorough investigation. Merely because\r\nsome other persons who might have committed the offences, but\r\nwere not arrayed as accused and were not charge-sheeted cannot\r\nbe a ground to quash the criminal proceedings against the </b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>accused who is charge-sheeted after a thorough investigation.\r\nDuring the trial if it is found that other accused persons who\r\ncommitted the offence are not charge-sheeted, the Court may\r\narray those personsas accused in exercise of powers under\r\nSection 319 Cr.P.C. Merely because some of the persons who\r\nmight have committed the offences are not charge-sheeted, cannot\r\nbe a ground to quash the proceedings against the accused\r\ncharge-sheeted after having found prima facie case against him\r\nafter investigation. Nothing has been further observed by the High\r\nCourt on merits and/or on the allegations against the private\r\nrespondent herein – original accused no.1.</b></span><br></p>', 'a1880e2ceddb76a3a915bccc01dd6574.JPG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-09', 1, '', '', '2021-12-10 03:04:14', '2021-12-10 03:05:41'),
(1219, 'JtL9ZlKVOze69NfvHSraMO1dX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mediclaim policy. Insurer is duty bound to inform insured about new changes/limitations in policy coverage at the time of renewal of the existing policy. Failure amounts to deficiency of service. Supreme Court.  ', '<p><b>Jacob Punnen and another vs United India Insurance Co Ltd.&nbsp;<br>Civil Appeal 6778 of 2013 decided on 9 December 2021<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2012/32841/32841_2012_10_1501_32101_Judgement_09-Dec-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2012/32841/32841_2012_10_1501_32101_Judgement_09-Dec-2021.pdf</a></span><br></b></p><p><b>6. It is argued by the counsel for the appellants Ms. Arundhati Katju that the\r\nState Forum and the NCDRC fell into error in holding that the appellants were\r\naware and were deemed to have been aware of the terms of the policy. It was\r\nemphasized that the appellants had not applied and obtained a fresh policy but\r\nhad rather renewed an existing policy – as they did earlier from time to time\r\nannually.&nbsp;&nbsp;<br></b></p><p><b>7......Counsel submitted furthermore that the insurer had undeniably\r\nissued a notice pursuant to which a policy was renewed on 26.03.2008. In the&nbsp;circumstances, it was duty of the insurer to inform the insured of the likely\r\nchange in coverage to enable them to explore an alternative i.e., to opt for a\r\npolicy that would cover all risks more comprehensively, even if it were to cost\r\nthem more. Counsel urged that in these circumstances, the insurer was clearly\r\nguilty of deficiency of service in as much as the insurer was in the dark about\r\nthe nature of the limited coverage.<br></b></p><p><b>8. Learned counsel on behalf of the insurer Mr. Amit Kumar urged this court\r\nto uphold the finding of the NCDRC submitting that there was no deficiency in\r\nservice by the respondents. It was submitted that the appellants never disputed\r\nthat in fact the policy was dispatched pursuant to the renewal. A careful reading\r\nof the policy for the year 2008-2009 would have indicated that it differed\r\nradically from the policy from the previous year because of a term indicating a\r\nmonetary limit on the reimbursable expenditure, by the insurer. In these\r\ncircumstances, the appellants could not place any blame upon the insurer.&nbsp;</b></p><p><b>9. It was submitted that the insurer was under no obligation to indicate or to\r\nintimidate to the appellants about the likely changes under its policies. In other\r\nwords, there was no duty in law which obliged the insurer to intimate the policy\r\nholder – at the point of time of renewal that the terms of the new policy would\r\nbe different from those of the earlier, lapsed/expired policy.<br></b></p><p><b>19. In these circumstances, this Court is of the opinion that the eventuality\r\ncontemplated in Biman Krishna Bose (supra), i.e., inapplicability of old terms,&nbsp;in the cases of renewal, when the contracts provide “or otherwise”, has to be\r\napplied contextually. If the renewed contract is agreed, in all respects, by both\r\nparties, undoubtedly the fresh terms (with restrictions) would be binding.\r\nHowever, that would not be the case when a new term is introduced unilaterally\r\nabout which the policy holder is in the dark. Further, the allusion to continuation\r\nof the terms of the Gold policy in respect of senior citizens (who were not to be\r\ncompelled to migrate to another policy) but were to be subject to the same\r\nterms, upon payment of a different rate of premia, reinforces the conclusion that\r\nthere was in fact, a renewal of the existing terms. <br></b></p><p><b>20. Arguendo, assuming the appellants had received the policy documents on\r\ntime, i.e., requisite disclosure had been made, and then the appellants had in fact\r\nmisunderstood the terms and mistaken the new Gold policy for the previous\r\npolicy, the question is, post payment of premium, were they in a position to\r\nprotest, or do anything about it. Irrespective of the answer to the question of\r\nwhether the renewal of an insurance contract results in a new contract or\r\notherwise, the issue which arises is whether the appellants, as beneficiaries of\r\nthe policy, could complain about mistake in its terms, and the possible\r\nconsequences of such mistake.&nbsp;<br></b></p><p><b>22.....Therefore, the law in India is that unless the unilateral mistake about the terms\r\nof a contract is so serious as to adversely undermine the entire bargain, it does\r\nnot result in automatic avoidance of a contract. Applied to the facts of this case,\r\nit is evident that the appellants could insist on the old insurance policy, on the\r\npremise that it renewed the pre-existing policy. The other conclusion would be\r\ncold comfort to the party seeking insurance cover, as the choice would be to\r\navoid it altogether- too drastic as to constitute a choice. The first point is\r\nanswered accordingly, in favour of the appellants.</b></p><p><b>26. In view of the state of law, which is, that the insurer was under a duty to\r\ndisclose any alteration in the terms of the contract of insurance, at the formation\r\nstage (or as in this case, at the stage of renewal), the respondent cannot be heard\r\nto now say that the insured were under an obligation to satisfy themselves, if a\r\nnew term had been introduced. If one considers the facts of this case, it is\r\nevident that the insurer had caused a renewal reminder, which was acted upon\r\nand the renewal cheque, issued by the appellant. At that stage, or just before the\r\nrenewal premium was furnished the insurer, or its agent was under a duty to\r\nalert the appellants that the change in terms, was likely to impact their decision,\r\nand if so required, offer a better or fuller coverage. One cannot be oblivious to\r\ntwo circumstances here. The first, is that medical or health insurance cover\r\nbecomes crucial with advancing age; the policy holder is more likely to need\r\ncover; therefore, if there are freshly introduced limitations of liability, the\r\ninsured may, if advised properly, and in a position to afford it, seek greater\r\ncoverage, or seek a different kind of policy. The second, is that most policies –\r\nhealth and medical insurance policies being no exception, are in standard form.\r\nIt would be worthwhile to notice at this stage that one who seeks coverage of a\r\nlife policy/a personal risk, such as accident or health policy has little choice but&nbsp;to accept the offer of certain standard term contracts – which are termed as\r\ncontracts d’ adhesion, a French legal term.</b></p><p><b>29. Contracts of adhesion (as contracts d’ adhesion are also called), as\r\ndiscussed previously, leave little or no choice to the customer; in this case, the\r\npolicy holders were left with no room to bargain and negotiate. In the present\r\ncase, the standard form contract, renewed year after year, left the appellants\r\nonly with the choice of raising the insurance cover. The last renewal, of course,\r\nresulted in the deletion of their son as a beneficiary. However, even with this\r\nlittle choice, the result of their being kept in the dark about the new terms which\r\nplaced limits on individual surgical procedures meant that had any other\r\ninformation with respect to the increased coverage which could have resulted in\r\nthe higher individual limits (for surgical procedures) from they might have&nbsp;benefitted was denied to them. For that reason, the “informational blackout”, so\r\nto say, on the part of the insurer, was a crucial omission.</b></p><p><b> 40. In view of the above discussion, this Court is of the opinion that the\r\nfindings of the State Commission and the NCDRC cannot be sustained. The\r\ninsurer was clearly under a duty to inform the appellant policy holders about the\r\nlimitations which it was imposing in the policy renewed for 2008-2009. Its\r\nfailure to inform the policy holders resulted in deficiency of service.&nbsp;</b><br></p>', '85fbb1f7aabd62ee2bc76dc0dbad7f06.jpg', '925449263b5e09a86476eebd15f2ae20.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-09', 1, '', '', '2021-12-10 04:35:16', '2021-12-10 04:35:16'),
(1220, 'J41Mncf1EgfY2oZkpM8res2ZJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Simply because the Will is registered the same by itself would not mean that the statutory requirements of proving the will need not be complied with. Supreme Court reiterates. ', '<p><b>Murthy and others vs C. Saradambal and others.&nbsp;<br>Civil Appeal 4270 of 2010 decided on 10 December 2021<br>Justice L. Nageswara Rao and Justice B.V. Nagarathna&nbsp;<br>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2009/10780/10780_2009_43_1502_32012_Judgement_10-Dec-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2009/10780/10780_2009_43_1502_32012_Judgement_10-Dec-2021.pdf</a></b></p><p><b>(a) One of the celebrated decisions of this Court\r\non proof of a will, reported in AIR 1959 SC 443 is\r\nin the case of H.Venkatachala Iyenger vs.\r\nB.N.Thimmajamma, wherein this Court has clearly\r\ndistinguished the nature of proof required for a\r\ntestament as opposed to any other document. The\r\nrelevant portion of the said judgment reads as\r\nunder:-\r\n</b></p><p><b><i>\"18. The party propounding a will or\r\notherwise making a claim under a will\r\nis no doubt seeking to prove a document\r\nand, in deciding how it is to be\r\nproved, we must inevitably refer to the\r\nstatutory provisions which govern the\r\nproof of documents. Sections\r\n67 and 68, Evidence Act are relevant\r\nfor this purpose. Under Section 67, if\r\na document is alleged to be signed by\r\nany person, the signature of the said\r\nperson must be proved to be in his\r\nhandwriting, and for proving such a\r\nhandwriting under Sections 45 and 47 of\r\nthe Act the opinions of experts and of\r\npersons acquainted with the handwriting\r\nof the person concerned are made\r\nrelevant. Section 68 deals with the\r\nproof of the execution of the document\r\nrequired by law to be attested; and it\r\nprovides that such a document shall not\r\nbe used as evidence until one attesting\r\nwitness at least has been called for\r\nthe purpose of proving its execution.\r\nThese provisions prescribe the&nbsp; requirements and the nature of proof\r\nwhich must be satisfied by the party\r\nwho relies on a document in a court of\r\nlaw. Similarly, Sections 59 and 63 of\r\nthe Indian Succession Act are also\r\nrelevant. Section 59 provides that\r\nevery person of sound mind, not being a\r\nminor, may dispose of his property by\r\nwill and the three illustrations to\r\nthis section indicate what is meant by\r\nthe expression \"a person of sound mind\"\r\nin the context. Section 63 requires\r\nthat the testator shall sign or affix\r\nhis mark to the will or it shall be\r\nsigned by some other person in his\r\npresence and by his direction and that\r\nthe signature or mark shall be so made\r\nthat it shall appear that it was\r\nintended thereby to give effect to the\r\nwriting as a will. This section also\r\nrequires that the will shall be\r\nattested by two or more witnesses as\r\nprescribed. Thus the question as to\r\nwhether the will set up by the\r\npropounder is proved to be the last\r\nwill of the testator has to be decided\r\nin the light of these provisions. Has\r\nthe testator signed the will? Did he\r\nunderstand the nature and effect of the\r\ndispositions in the will? Did he put\r\nhis signature to the will knowing what\r\nit contained? Stated broadly it is the\r\ndecision of these questions which\r\ndetermines the nature of the finding on\r\nthe question of the proof of wills. It\r\nwould prima facie be true to say that\r\nthe will has to be proved like any\r\nother document except as to the special\r\nrequirements of attestation prescribed\r\nby Section 63 of the Indian Succession\r\nAct. As in the case of proof of other\r\ndocuments so in the case of proof of\r\nwills it would be idle to expect proof\r\nwith mathematical certainty. The test\r\nto be applied would be the usual test\r\nof the satisfaction of the prudent mind\r\nin such matters.\"</i></b></p><p><b>In fact, the legal principles with regard to\r\nthe proof of a will are no longer res\r\nintegra. Section 63 of the Indian Succession Act,\r\n1925 and Section 68 of the Evidence Act, 1872, are\r\nrelevant in this regard. The propounder of the\r\nwill must examine one or more attesting witnesses\r\nand the onus is placed on the propounder to remove\r\nall suspicious circumstances with regard to the\r\nexecution of the will. In the above noted case,\r\nthis Court has stated that the following three\r\naspects must be proved by a propounder:-</b></p><p><b><i>\"(i) that the will was signed by the\r\ntestator in a sound and disposing state\r\nof mind duly understanding the nature\r\nand effect of disposition and he put\r\nhis signature on the document of his\r\nown free will, and\r\n</i></b></p><p><b><i>(ii) when the evidence adduced in\r\nsupport of the will is disinterested,\r\nsatisfactory and sufficient to prove\r\nthe sound and disposing state of the\r\ntestator\'s mind and his signature as\r\nrequired by law, courts would be\r\njustified in making a finding in favour\r\nof propounder, and\r\n</i></b></p><p><b><i>(iii) if a will is challenged as\r\nsurrounded by suspicious circumstances,\r\nall such legitimate doubts have to be\r\nremoved by cogent, satisfactory and\r\nsufficient evidence to dispel\r\nsuspicion. In other words, the onus on\r\nthe propounded can be taken to be&nbsp;discharged on proof of the essential\r\nfacts indicated therein.\"</i></b></p><p><b>(b) In Jaswant Kaur v. Amrit Kaur and others [1977\r\n1 SCC 369], this Court pointed out that when a\r\nwill is allegedly shrouded in suspicion, its proof\r\nceases to be a simple lis between the plaintiff\r\nand the defendant. What generally is an\r\nadversarial proceeding, becomes in such cases, a\r\nmatter of the Court\'s conscience and then, the\r\ntrue question which arises for consideration is,\r\nwhether, the evidence let in by the propounder of\r\nthe will is such as would satisfy the conscience\r\nof the Court that the will was duly executed by\r\nthe testator. It is impossible to reach such a\r\nsatisfaction unless the party which sets up the\r\nwill offers cogent and convincing explanation with\r\nregard to any suspicious circumstance surrounding\r\nthe making of the will.\r\n</b></p><p><b>(c) In Bharpur Singh and others v. Shamsher\r\nSingh [2009 (3) SCC 687], at Para 23, this Court\r\nhas narrated a few suspicious circumstance, as\r\nbeing illustrative but not exhaustive, in the\r\nfollowing manner:-<br></b></p><p><b><i>\r\n\"23. Suspicious circumstances like the\r\nfollowing may be found to be surrounded\r\nin the execution of the will:\r\n(i) The signature of the testator may\r\nbe very shaky and doubtful or not\r\nappear to be his usual signature.\r\n(ii) The condition of the testator\'s\r\nmind may be very feeble and debilitated\r\nat the relevant time.\r\n(iii) The disposition may be unnatural,\r\nimprobable or unfair in the light of\r\nrelevant circumstances like exclusion\r\nof or absence of adequate provisions\r\nfor the natural heirs without any\r\nreason.\r\n(iv) The dispositions may not appear to\r\nbe the result of the testator\'s free\r\nwill and mind.\r\n(v) The propounder takes a prominent\r\npart in the execution of the will.\r\n(vi) The testator used to sign blank\r\npapers.\r\n(vii) The will did not see the light of\r\nthe day for long.\r\n(viii) Incorrect recitals of essential\r\nfacts.\"</i></b></p><p><b>It was further observed that the\r\ncircumstances narrated hereinbefore are not\r\nexhaustive. Subject to offering of a reasonable\r\nexplanation, existence thereof must be taken into\r\nconsideration for the purpose of arriving at a\r\nfinding as to whether the execution of the will\r\nhad been duly proved or not. It may be true that\r\nthe Will was a registered one, but the same by\r\nitself would not mean that the statutory&nbsp; requirements of proving the will need not be\r\ncomplied with.\r\n</b></p><p><b>(d) In Naranjan Umeshchandra Joshi v. Mrudula\r\nJyoti Rao, [(2006) 13 SCC 433], in Paras 34 to 37,\r\nthis Court has observed as under:-\r\n&nbsp;</b></p><p><b><i>“34. There are several circumstances\r\nwhich would have been held to be\r\ndescribed by this Court as suspicious\r\ncircumstances:\r\n(i) when a doubt is created in\r\nregard to the condition of mind of\r\nthe testator despite his signature\r\non the will;\r\n(ii) When the disposition appears\r\nto be unnatural or wholly unfair in\r\nthe light of the relevant\r\ncircumstances;\r\n(iii) where propounder himself\r\ntakes prominent part in the\r\nexecution of will which confers on\r\nhim substantial benefit.\r\n</i></b></p><p><b><i>35. We may not delve deep into the\r\ndecisions cited at the Bar as the\r\nquestion has recently been considered\r\nby this Courts in B.Venkatamuni v.\r\nC.J. Ayodhya Ram Singh [(2006) 13 SCC\r\n449], wherein this Court has held that\r\nthe court must satisfy its conscience\r\nas regards due execution of the will by\r\nthe testator and the court would not\r\nrefuse to probe deeper into the matter\r\nonly because the signature of the\r\npropounder on the will is otherwise\r\nproved.\r\n</i></b></p><p><b><i>36. The proof of a will is required not\r\nas a ground of reading the document but\r\nto afford the Judge reasonable\r\nassurance of it as being what it\r\npurports to be.</i></b></p><p><b><i>37. We may, however, hasten to add that\r\nthere exists a distinction where\r\nsuspicions are well founded and the\r\ncases where there are only suspicions\r\nalone. Existence of suspicious\r\ncircumstances alone may not be\r\nsufficient. The court may not start\r\nwith a suspicion and it should not\r\nclose its mind to find the truth. A\r\nresolute and impenetrable incredulity\r\nis not demanded from the Judge even if\r\nthere exist circumstances of grave\r\nsuspicion.”</i></b></p><p><b>(e) This Court in Anil Kak v. Sharada Raje,\r\n[(2008) 7 SCC 695], held as under:-\r\n</b></p><p><b><i>“20. This Court in Anil Kak v. Sharada\r\nRaje opined that the court is required\r\nto adopt a rational approach and is\r\nfurthermore required to satisfy its\r\nconscience as existence of suspicious\r\ncircumstances plays an important role,\r\nholding:&nbsp;</i></b></p><p><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">52. Whereas execution of any other\r\ndocument can be proved by proving\r\nthe writings of the document or the\r\ncontents of it as also the\r\nexecution thereof, in the event\r\nthere exists suspicious\r\ncircumstances the party seeking to\r\nobtain probate and/or letters of\r\nadministration with a copy of the\r\nwill annexed must also adduce\r\nevidence to the satisfaction of the\r\ncourt before it can be accepted as\r\ngenuine.\r\n<br>53. As an order granting probate is\r\na judgment in rem, the court must\r\nalso satisfy its conscience before\r\nit passes an order.\r\n<br>54. It may be true that deprivation\r\nof a due share by (sic to) the&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">natural heir by itself may not be\r\nheld to be a suspicious\r\ncircumstance but it is one of the\r\nfactors which is taken into\r\nconsideration by the courts before\r\ngranting probate of a will.\r\n<br>55. Unlike other documents, even\r\nanimus attestandi is a necessary\r\ningredient for proving the\r\nattestation.”</span></i></b></p><p><b>(f) Similarly, in Leela Rajagopal and others v.\r\nKamala Menon Cocharan and others, [(2014) 15 SCC\r\n570], this Court opined as under:-\r\n</b></p><p><b>“13. A will may have certain\r\nfeatures and may have been executed\r\nin certain circumstances which may\r\nappear to be somewhat unnatural.\r\nSuch unusual features appearing in\r\na will or the unnatural\r\ncircumstances surrounding its\r\nexecution will definitely justify a\r\nclose scrutiny before the same can\r\nbe accepted. It is the overall\r\nassessment of the court on the\r\nbasis of such scrutiny; the\r\ncumulative effect of the unusual\r\nfeatures and circumstances which\r\nwould weigh with the court in the\r\ndetermination required to be made\r\nby it. The judicial verdict, in the\r\nlast resort, will be on the basis\r\nof a consideration of all the\r\nunusual features and suspicious\r\ncircumstances put together and not\r\non the impact of any single feature\r\nthat may be found in a will or a\r\nsingular circumstance that may\r\nappear from the process leading to\r\nits execution or registration.\r\nThis, is the essence of the&nbsp;repeated pronouncements made by\r\nthis Court on the subject including\r\nthe decisions referred to and\r\nrelied upon before us.&nbsp;</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></p>', '9ecd034f8f9a6913745551bac6876fef.JPG', 'c3e3488f6377d282c541d6d93b6e2cf0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-10', 1, '', '', '2021-12-11 04:50:54', '2021-12-11 04:50:54'),
(1221, 'VmQkHIH8w7wC7NkzLoCRE0Hy8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Allotment of plots in the discretionary quota cannot be at the whims of the persons in power and/or the public servants who are dealing with the allotment of plots in the discretionary quota. Supreme Court.', '<p><b>State of Odisha vs Pratima Mohanty&nbsp;</b></p><p><b>Criminal Appeal 1455-1456 of 2021 decided on 11 December 2021</b></p><p><b>Justice M.R. Shah and Justice B.V. Nagarathna</b></p><p><b>Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/5257/5257_2020_43_1501_32030_Judgement_11-Dec-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/5257/5257_2020_43_1501_32030_Judgement_11-Dec-2021.pdf</a></b></p><p><b>11. Before parting we may observe that now the day has come to do away with allotment of government largess on the basis of discretionary quota as this inevitably leads to corruption, nepotism and favouritism.&nbsp; Government and/or the public authorities like B.D.A. are the custodian of public properties. Allotment of public properties must be transparent and has to be fair and non­arbitrary.&nbsp; In such matters public interest only has to be the prime guiding consideration.&nbsp; The aforesaid principle is in order to get the best or maximum price so that&nbsp; it may serve the public purpose and public&nbsp; interest so as to avoid loss to the authority and/or the public exchequer. The allotment of plots in the discretionary quota cannot be at the whims of the persons in power and/or the public servants who are dealing with the allotment of plots in the discretionary quota.</b></p><p><b>When&nbsp; a democratic&nbsp; &nbsp;government in exercise of its discretion selects the&nbsp; &nbsp;recipients&nbsp; &nbsp;for&nbsp; &nbsp;its&nbsp; &nbsp;largess,&nbsp; &nbsp;then discretion should&nbsp; &nbsp;be&nbsp; &nbsp;exercised&nbsp; &nbsp;objectively, rationally, intelligibly,&nbsp; &nbsp;fairly and in a non­arbitrary manner and&nbsp; &nbsp;it should not be subjective and according&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;private opinion and/or the whims and fancies of the persons in power and/or the public servants.&nbsp; &nbsp;Even if guidelines are issued to be followed while allotment of the plots under the discretionary quota and it is found that many a time they are hardly followed or are manipulated to suit the particular circumstances.&nbsp; Therefore, the best thing is to do away with such&nbsp; &nbsp;discretionary quota and allotments of the public properties/plots must be through public auction&nbsp; by and large.&nbsp; Even in the case where the policy decision is taken to allot the plots to a particular class – downtrodden class etc. in that case also the guidelines must be strictly followed and as observed hereinabove the allotment must reflect the fair play&nbsp; &nbsp;and&nbsp; &nbsp;non­-arbitrariness and should have objective, criteria/procedure.&nbsp; &nbsp; &nbsp; &nbsp; &nbsp;</b></p>', 'a70a845a493da7caefcaf8c997cd05a1.jpg', 'f30327acfd9b11ecf7c0214ae8361bac.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-12', 1, '', '', '2021-12-12 15:53:36', '2021-12-12 15:53:36');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1222, '8QGHjpKex5963oz9t6QZbSdjC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Stigmatic termination of an employee cannot be done by following termination simplicotor Rule abandoning disciplinary proceedings. Karnataka High Court. ', '<p><b>The Management of Sri Dharmasthala Manjunatheshwara Education Society vs Suresh Kumar </b></p><p><b>Justice S. Sunil Dutt Yadav and Justice S. Rachaiah</b><br></p><p><b>Writ Appeal 100019 of 2020 decided on 25 November 2021</b></p><p><b>The management of Sri Dharmasthala Manjunatheshwara Educational Society has filed W.A.No.100019/2020 calling in question the correctness of the order passed in W.P.No.75525/2015 whereby the learned Single Judge has set aside the award of the Labour Court dated 12.09.2012 passed in Reference No.10/2012 and had further directed that the petitioner is entitled for reinstatement with consequential benefits from the date of service  till  reinstatement   with   50%   back   wages.   The employee-Sri Suresh Kumar Ijari has filed W.A.No.100022/2020 calling in question the order of the learned Single Judge only insofar as it relates to denial of back wages to the extent of 50% and has sought for direction for payment of full back wages. The parties are referred to as ‘Workman’ and ‘Management’ for the purpose of convenience.</b></p><p><b>19.<span style=\"white-space:pre\">	</span>A perusal of the letter of termination at page no. 154 would prima facie indicate the nature of termination. The letter of termination dated 21.06.2006 is extracted as below:</b></p><p><i><b>“Whereas Mr. Suresh Kumar Ijari, Accountant involved in a criminal case and he was detained in custody for 08 months. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In terms of his appointment order, Clause No. 4 and as per the employees service rules 25(a) and 58(a), his services to SDME Society are liable for termination. Hence, his services to the SDME Society have been terminated w.e.f. 01.06.2006.”</b></i></p><p><b>21.<span style=\"white-space:pre\">	</span>In fact, the apex Court in the case of Gujarat Steel Tubes Ltd. and Others Vs. Gujarat Steel Tubes Mazdoor Sabha and others reported in (1980) 2 SCC </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">593 (Bench of 3 judges) has laid down the relevant consideration to determine as to whether termination is stigmatic or simpliciter. </b></p><p><b>22.<span style=\"white-space:pre\">	</span>Clearly taking note of the observation of the apex Court, the abandonment of disciplinary proceedings after issuing of charge sheet and resorting to termination by </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">invoking the service rules which provided for termination simpliciter would be impermissible. In fact, it is not necessary to go to the extent of lifting the veil to find out whether the termination was in effect stigmatic and not simpliciter as in the present case the recital in the order of termination referring to involvement in a criminal case and that he was detained in custody for eight months, is by itself stigmatic. If that were to be so, the only recourse available to the management was to hold a full fledged domestic inquiry in terms of its service rules as mandated under rule 61 and the letter of termination taking recourse to Sec. 25(a) and 58 was impermissible as rightly held by the learned Single Judge.</b></p><p><b>30.<span style=\"white-space:pre\">	</span>For the foregoing reasons, the writ appeals are disposed of. Consequently, the order of the learned Single Judge is confirmed subject to modification insofar as exclusion of back wages for the period from 21.06.2006 to 18.04.2011.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '434cc41be0bf3c8d06d28a53eb0fcc7d.JPG', '49d914c63d7ab8069e41e02eaad5ea60.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-12', 1, '', '', '2021-12-12 17:49:17', '2021-12-12 17:57:56'),
(1223, 'kq3ZPZM8B1EUUCiO4UYqJP8l5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Protection of Women from Domestic Violence Act, 2005. Father-in-law and Brothers-in-law are also bound to pay maintenance and provide separate residence to woman. Karnataka High Court. ', '<p><b>Shivakumar and others vs Parvati&nbsp;</b></p><p><b>Criminal Revision Petition 200004 of 2015 decided on 30 November 2021</b></p><p><b>This revision petition is filed under sections 397 read with section 401 of Cr.P.C., praying this Court to set aside the judgment and order of the trial Court and also order of the I Additional Sessions Judge at Kalaburagi granting Rs.3,000/-per month to the petitioner as maintenance and medical expenses and also ordered to provide separate residential house to the petitioner at Yelsangi village for her residence, out of three houses, which is situated near Gram Panchayat, Yelsangi as per Domestic Incident Report and also directed to pay arrears of maintenance within one month and further direction was given to the concerned jurisdictional police to carry out the order of the Court.</b></p><p><b>11. The other contention of the petitioners counsel before this Court that the petitioners are the father-in-law and bother-in-laws of the respondent. He would contend that the Trial Court ought not to have granted the relief against the father-in-law and brother-in-laws and failed to take note of the fact that they are living separately. But the Trial Court while considering the issue with regard to whether they are living together or not, relied upon the Domestic Incident Report submitted by the Child Development Protection Officer (CDPO). In paragraph 18 of the order wherein report is very clear that all of them are residing together and family is having 9 acres of land and all of them will get 3 acres each and no partition was taken place. The counsel for the petitioners brought to the notice of this Court paragraph 4 of the petition filed under Section 12 of the DV Act wherein he claims that respondent No.1 was allotted one open site at village Yelsangi and the mother and sister of respondent No.1 forced the aggrieved person to bring money and accordingly she brought the money of Rs.80,000/- borrowed by her brother and out of that money, two rooms were constructed in the open space allotted to the respondent No.1 and in which house, aggrieved person and her family were residing, while respondent Nos.2 to 4 and his mother and sister were separately residing in the ancestral house. Having taken note of the said averment, it is clear that though there is an admission regarding they are living separately but there is no any admission with regard that they are not enjoying the joint family&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">properties and report of this domestic violence, Protection Officer has not been disputed with regard to that all of them are enjoying the joint family property and there is no partition. When such being the facts and circumstances, the very contention of the petitioners that the father-in- law and brother-in-laws are not bound by paying the maintenance amount and not bound to provide separate residence as ordered by the Trial Court cannot be accepted. Under Section 2(q) of the DV Act, the word respondent means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner. Having taken note of this, the very contention of the petitioners herein cannot be accepted. The counsel appearing for the petitioners would submit that the suit for partition is also pending but the said suit has not been adjudicated and decree has been passed for judicial separation cannot be a ground to reject the petition. When such being the case, when the father-in- law and also the brother-in-laws are enjoying the joint family property, they cannot contend that they are not bound by obeying the order passed by the Trial Court which was filed under Section 12 of the DV Act. Hence, I answer Point No.2 as negative.</b></p><p><b>The petition is dismissed.</b></p><p><b><br></b></p><p><br></p>', '69e5c9bb126dab7c257ced72c089c088.jpg', '7db4efe19b7704641f946ffca6ded585.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-12', 1, '', '', '2021-12-12 18:23:11', '2021-12-12 18:23:11'),
(1224, 'gcegQKoJYp6g9OCAvBdSxvyWi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A co-defendant cannot be permitted to cross-examine another co-defendant to get over an admission given by such co-defendant during his cross-examination. Karnataka High Court', '<p><span style=\"font-weight: bolder;\">Sujitkumar vs Inrabai&nbsp;<br>Writ Petition 104160 decided on 28 October 2021<br></span></p><p><b>1. The petitioner is before this Court seeking for the following relief:</b></p><p><i><b>“Quash the impugned order dated 17/9/2021 passed by the Additional Senior Civil judge, Jamkhandi, on&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">IA No.14 in OS No.8/2013 vide Annexure-H in the interest of justice and equity.”</b></i></p><p><b>8....... a codefendant is not permitted to cross-examine another codefendant. The exception only being if there are any claims or counterclaims between codefendants themselves and if there is any adverse interest between the codefendants, which is required to be decided in the matter.</b></p><p><b>9. In the present case, there is no such adversity of interest or any claim or counterclaim between the defendants. The codefendant cannot be permitted to cross-examine another codefendant to get over an admission given by such codefendant during the course of cross-examination. If such a methodology is permitted, the very purpose of cross-examination would be lost and codefendants among themselves can resolve to trickery and strategy to get over the admissions, if any during cross-examination.</b></p><p><b>10. In view of the above, there is no merit in the petition.</b></p><p><b>Petition is dismissed at the stage of admission.</b></p><p><br></p>', 'ed2c8f1a62ca86aa87ac25e0d1cf28c4.jpeg', '20e9c052293618af3107c057734d7608.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-12', 1, '', '', '2021-12-13 01:32:55', '2021-12-13 01:32:55'),
(1225, 'OyBZBWrhcjouRaVHMskG2KPO1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Right to Information. Karnataka High Court directs the Authorities to store information in electronic format and communicate it to applicants immediately on applications being filed.', '<p><span style=\"font-weight: bolder;\">C.K. Sharada VS Basayya Irayya Dinnimath and others.<br>Writ Petition 61277 of 2012 decided on 23 October 2021</span></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. When an application under the RTI Act, 2005 is filed, it is required that all the information requested for is furnished. Piecemeal furnishing of information would not satisfy the requirement of the RTI Act, 2005. Hence, I am of the considered opinion that the finding of respondent No.5 is proper and correct.</b><span style=\"font-weight: bolder;\"><br></span></p><p><b>11. This Court has come across several writ petitions of the present kind, where the dates of application and date of furnishing of information is always brought into question. It is therefore required that the State make necessary arrangements for the data to be web hosted as regards date on which any application is received by any information officer, the date on which the same is processed and the date on which the information is furnished. The said information could also be furnished electronically by way of E-mail to the applicant, if so required.</b></p><p><b>12. In many cases, it is also seen that the Information Officer writes to a third parties seeking for information&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and thereafter takes umbrage under the fact that the third party has delayed in furnishing the information.</b></p><p><b>13. Most of the time, it is seen that the Public Information Officer was required to have this information within his or her possession and not seek for this information from third parties. In the present case the petitioner ought to have had the details about how many APL cards had been issued to each and every establishment coming under her jurisdiction, how many Antodaya cards have been issued within her jurisdiction and how many Annapurana cards have been issued under her jurisdiction. As regards the quantity of rice, wheat and sugar supplied, since the supply is made by the Food and Civil Supplies Department, of which the petitioner is the Public Information Officer, this information ought to have been available with the Food and Civil Supplies Department to have enabled the petitioner to supply the information immediately.</b></p><p><b>14. In view thereof, necessary directions are issued to all the Authorities to have all the information stored within their Offices in electronic format so that the same may be communicated to any applicant immediately on an application being filed.</b></p><p><b>15. The learned HCGP is directed to bring the above to the notice of the Chief Secretary, State of Karnataka and in this particular case, the Secretary, Revenue Department and Director, Food and Civil Supplies Department.</b></p><p><br></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '18a490103005c7cbbd47ba84a813f234.jpeg', 'e07b714227aafca077d732ac9058294f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-12', 1, '', '', '2021-12-13 02:24:51', '2021-12-13 02:24:51'),
(1226, 'qLAR6aKAaK5ROYc59UTzCnk4r', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Confer Other Backward Class benefits to Kodavas by correcting their nomenclature\'\'. Karnataka High Court directs Govt to accept recommendations of the Karnataka State Backward Commission. ', '<p><span style=\"font-weight: bolder;\">Codava National Council vs The Chief Secretary Government of Karnataka and others. <br>Writ Petition 48624 of 2016 decided on 8 December 2021<br></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Petitioner, an un-incorporated association of individuals belonging to Kodava community of Coorg is knocking at the doors of Writ Court grieving against the order dated 14.10.2015 at Annexure-F in the WP as originally filed and another order dated 30.9.2021 at Annexure-G in amended WP made by the State Govt. whereby the interim recommendation of&nbsp; the Karnataka&nbsp; State&nbsp; Backward Commission, (hereafter \'Commission\') has been rejected; by virtue of this rejection, certain benefits of reservation which otherwise would have availed to this community have been denied.</b><span style=\"font-weight: bolder;\"><br></span></p><p><b>(a) A few words about Kodavas:</b></p><p><b>(i) It is tritely said \"Coorg is to Karnataka what Kashmir is to India\"; Talakaveri, the birth place of river is in Coorg, it is also known as the \"Land of Army Generals\"; the Military Greats like Field Marshall K.M.Cariappa and General K.S.Thimayya hailed from this community; innumerable Kodavas serve in the defence of country; of the prominent communities that inhabit this beautiful landscape, \'Kodavas\' happens to be one; like a very few martial communities, Kodavas too are exempted from the requirement of license for carrying weapons; this is owing to their religious &amp; cultural disposition, says a Division Bench of this Court in W.P.No.1386/2018 between CAPT. CHETAN Y.K (RETD) VS. UNION OF INDIA, disposed off on 13.8.2019.</b></p><p><b>(ii) The socio-anthropological studies relating to Kodavas were documented only after the advent of British Rule; it is pertinent to state that there&nbsp; is a&nbsp; copious reference to the history of Kodavas, their lineage &amp; their lifestyle, in \"Chikaveera Rajendra\", of Sri.Maasti Venkatesh Iyengar (this earned him&nbsp; Jnanpith&nbsp; Award);&nbsp; another&nbsp; researcher&nbsp; Mr.B.D.Ganapathy in his book \"KODAVAS\", published by&nbsp;</b></p><p><b>Jyothi Prakashana, Madikeri, First Edn. 1980, at page 12 writes:</b></p><p><b>\"...perhaps the Kodavas are one of the smallest numbering not even a lakh. This microscopic community with its great cultural tradition, with its high watermark of independence, integrity and valour has etched an indelible mark&nbsp; in the&nbsp; annals&nbsp; of Indian history.\"</b></p><p><b>Lt. P. Connor in his book \"Memoirs of Kodagu Survey\" (1817) says:</b></p><p><b>\"...Though there are no historical data or evidences to establish their origin, there is no doubt that the Kodavas are one of the oldest races. Their&nbsp; land being a forest-ridden area with no outside contact and moreover there being nothing attractive to arrest the covetous eyes of conquerors and even if anyone attempted the forbidding hilly terrain, inclement weather and the heavy monsoon completely thwarted and made outside&nbsp; conquest well nigh impossible. As such it remained for years cut off from the external world and the face preserved its purity, its customs, traditions and culture unsullied...\"</b></p><p><b>What Mr.Erskine Perry another scholar wrote about this miniscule community is also worth adverting:</b></p><p><b>\"...the Kodavas have no resemblance to any of the faces of south India and that it clearly&nbsp; indicates&nbsp; that they must have come from outside. He also describes that the kodavas are by far&nbsp; the&nbsp; finest&nbsp; race he had seen in India in point of independent bearing good looks and all the outward signs of well-being...\".</b></p><p><b>(c) The Karnataka State Commission for Backward Classes is a statutory body established by the State Government in terms of Section 3 of the 1995 Act; its Chairman is a person who is or has been a Judge of the High Court or is eligible to be so appointed or a “social scientist”; the Director of Backward Classes and the Minorities Department, happens to be its ex officio Member Secretary; this apart, the Commission consists of five more persons who have “special knowledge” in matters relating to backward classes and one of them shall be again a “social scientist”; all this is being mentioned to show the stature of the&nbsp; Commission and the pivotal role it plays in matters of the kind; Section 9(1) of the 1995 Act assigns functions to the Commission; it has to examine requests for inclusion of any class of citizens as a backward class in the lists and tender “advice” to the State Government; it also has a duty to supervise the implementation of various welfare schemes meant for these classes; Section 9(2) of the Act makes the advice of the Commission ordinarily binding on the Government; a pari materia provision appears verbatim in Sec.9(2) of National Commission for Backward Classes Act, 1993, is not a coincidence.</b></p><p><b>(g) The impugned order dated 14.10.2015 states that the recommendation of the Commission was not approved by the “Competent Authority” and therefore, the Govt. did not accept the subject advice; despite vehement submission, learned AGA is not in a position to point out which is that “Competent Authority” and under which law it is constituted and functioning; the composition of this Authority is also not forthcoming for deciding the probative force of its view; on what ground this authority disapproved the recommendation of the Commission, remains to be as inscrutable as Sphinx; how could a high constitutional functionary like the State Government be swayed away by the view of some so called “Competent Authority” remains to be a riddle wrapped in enigma; in good governance and more particularly when one&nbsp; is dealing with the matter relating to Backward Classes, \'enigmatic reasons\' have be treated as \'no reasons\'; the&nbsp; reasons to be judicially acceptable have to arise from the viscera of the decision; if they are pasted on the epiderma of the decision, Writ Courts shun them, more particularly when “community rights” as a basis for affirmative action as recognized by the Apex Court in Indra Sawhney supra under Articles 15 &amp; 16 of the Constitution, are involved.&nbsp;</b></p><p><b>(k) The only reason twice assigned by the Government in the impugned orders is that the Competent Authority declined approval to the advice of the Commission; this&nbsp; reason cannot be called as cryptic because it is not even that;&nbsp; if this sole reason is set at naught, the advice of the Commission eventually becomes imperative warranting grant of the prayer for certiorari coupled with mandamus to \"implement the recommendation/advice\" of the Commission.</b></p><p><b>(l) Lastly, the contention of learned AGA that the impugned orders now being set at naught, matter may be remanded to the Govt. for a fresh consideration, is bit difficult to countenance; the scope for such an argument is completely depleted by what the Govt. did pursuant to the interim direction of the Co-ordinate Bench; the conduct of the Govt. does not generate confidence in the mind of this court that petitioner shall not be avoidably driven to one more legal battle, which after being dragged on for years would meet the same fate again; citizens knock at the doors of Writ Court seeking concrete relief; their demand is not for the remand; they are here claiming justice; years have rolled and much water has flowed under the bridges; the request of the AGA if, at this length of time acceded to, the Writ Courts run the risk of a mass ridicule; the traditional view that judiciary should not undertake something which falls within the domain of the Executive, is founded on the \'doctrine of separation of powers\', is true; however, such a constitutional theory is founded on a presumption that the Executive would discharge its duties promptly as ordained by law; however, the times are different now; it does not need much research to show the rebuttal of such a presumption, a fortiori; the&nbsp; scrupulous&nbsp; litigants should not feel that the constitutional organs of the State are playing badminton, using them as shuttlecock; Justice&nbsp; Oliver Wendell Holmes in DAVIS vs. MILLS, 194 U.S. 451 (1904) had observed: “Constitutions are intended to preserve practical and substantial rights, not to maintain theories …”.</b></p><p><b>In the&nbsp; above&nbsp; circumstances,&nbsp; this&nbsp; writ&nbsp; petition&nbsp; succeeds; a Writ of&nbsp; Certiorari&nbsp; issues&nbsp; quashing&nbsp; the&nbsp; impugned&nbsp; orders dated 14.10.2015 &amp; 30.09.2021; consequently, a Writ of Mandamus issues to&nbsp; the&nbsp; respondent–Government&nbsp; to&nbsp; accept&nbsp; the subject advice of the Karnataka State Commission for Backward Class and issue corrective&nbsp; orders&nbsp; in&nbsp; terms&nbsp; thereof and further, to report compliance to the Registrar General of this Court within an outer limit of three months, failing which heavy costs become awardable in the next level of legal battle.</b></p><p><br></p>', '296fd5c71425ef93d750d231cdba6736.jpg', 'f0e5afffd6afcfa5ddd0f87bda1d9e9e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-13', 1, '', '', '2021-12-14 04:33:31', '2021-12-14 04:33:31'),
(1227, 'zrScvP4N6NqYKcwYE7gRkqIGh', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Lokayukta Police can NOT challenge rejection of Government sanction to prosecute a public servant since it it cannot claim to be an aggrieved person. Karnataka High Court.', '<p><span style=\"font-weight: bolder;\">Karnataka Lokayukta Police vs State by Secretary <br>Writ Petition 48249 of 2018 decided on 13 December 2021<br></span></p><p><b>The petitioner/Karnataka Lokayukta Police represented by its Police Inspector/Investigating Officer is before this Court calling in question orders dated 28-01-2017 and 31-05-2017, passed by the 1st respondent/Government declining to accord sanction to prosecute the 3rd respondent.</b></p><p><b>6. The learned counsel for the petitioner would vehemently argue and contend that the petitioner has locus to challenge the orders of the State refusing to accord sanction to prosecute  as the investigation is conducted by the petitioner and the 3rd respondent cannot escape the clutches of penal law on declining sanction to be accorded. He would further submit that the competent authority while declining to accord sanction has looked into the entire material of investigation, which is impermissible in law.</b></p><p><b>10. POINT NO.1: Whether the petitioner can claim to be an aggrieved person by the act of the state declining to grant sanction to prosecute the 3rd respondent?</b></p><p><b>The afore-narrated facts are not in dispute. The facts with regard to the 3rd respondent joining service and retiring on attaining the age of superannuation or the service that he has rendered in the State Government need not be gone into, as they are not the issues in the case at hand and not the point that has arisen for consideration.</b></p><p><b>In the light of the facts that went into the  judgment  in MOHAMMED IQBAL BHATTI’S case and the law laid down by the Apex Court in JAGADAMBA OIL MILLS’ case, the contention of the learned counsel for the petitioner that the petitioner is aggrieved by the refusal of sanction and can maintain the writ petition deserves to be rejected and the point (i) that has arisen  is to be held against the petitioner and it is accordingly held.</b></p><p><b>14. POINT NO.2: Whether there is an error committed by the competent authority in looking at  the  entire  material on record while declining to grant sanction to prosecute the 3rd respondent?</b></p><p><b>18. The State performing the act of considering grant of sanction or otherwise, is required to look at the entire material  or the whole material. The usage of the words ‘whole’ or ‘entire’ material by the Apex Court in the case of ASHOK KUMAR AGGARWAL (supra), clearly mandates that the competent authority is required to look into everything placed before it and other material, if available, at the time of considering the request for grant of sanction, as it is trite that it is not an acrimonious exercise but a solemn or sacrosanct act, which affords protection to the Government servant or releases him to face prosecution.  It is the discretion of the competent authority either to accord sanction or refuse sanction. What material has to be looked into while granting or refusing sanction has been the subject matter of interpretation by the Apex Court in the afore-extracted judgments. In my considered view, no fault can be found with the exercise of discretion of the competent authority in looking into the whole or entire material, while refusing to accord sanction, failing which, the act of the competent authority would have fallen foul of the law laid down by the Apex Court in the afore-extracted judgments.</b></p><p><b>Therefore, a coalesce of the facts obtaining in the case at hand, Section 19 of the Act, judgments of the Apex Court interpreting Section 19 of the Act and delineating the manner in which the competent authority has to accord or refuse sanction and the Official Memorandum or the circulars issued by the Government of India and the State, would result in the subject point  also being held against the petitioner.</b></p><p><b>20.<span style=\"white-space:pre\">	</span>In view of the preceding analysis, I do not find any merit in the writ petition and the same is accordingly, dismissed.</b></p><p><b><br></b></p><p><br></p>', '6e30107d56360f023ae08312effd132a.jpg', '8494b596846bdb75899699d6b7dc8712.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-13', 1, '', '', '2021-12-14 04:57:26', '2021-12-14 04:58:31'),
(1228, 'KX1scOlo0XBxrQdn5UK1mChUF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Election petition alleging corrupt practice. Non-submission of affidavit in Form-25 is a curable defect. Petition cannot be dismissed on this ground. Supreme Court. ', '<p><b>A. Manju vs Prajwal Revanna&nbsp;<br>Civil Appeal 1774 of 2020 decided on 13 December 2021<br>Justice&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Sanjay Kishan Kaul and Justice M.M. Sundresh&nbsp;<br>Judgment Link:&nbsp;</span><a href=\"https://main.sci.gov.in/supremecourt/2020/6512/6512_2020_36_1502_32086_Judgement_13-Dec-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/6512/6512_2020_36_1502_32086_Judgement_13-Dec-2021.pdf</a></b></p><p><b>19. We must begin at the inception by stating that intrinsically,\r\nelection law is technical in nature. In the present matter, an election\r\nconducted under an independent body like the Election Commission is&nbsp;sought to be assailed, where the mandate of the public has gone in a\r\nparticular way. The allegations must strictly fall within the parameters of\r\nthe manner in which such a mandate can be overturned. The primary plea\r\ntaken by the appellant is largely that success in the elections was\r\nobtained by concealment of material, which would have been germane in\r\ndetermining the opinion of the electorate. In effect, were such material to\r\nbe available with the electorate, they would have exercised another\r\noption on the basis of it. However, while the requirements to be met in\r\nthe election petition may be technical in nature, they are not hypertechnical, as observed in the Ponnala Lakshmaiah16 case. We have\r\nconsidered the aforesaid aspect by quoting the observations made therein\r\nwhich have received the imprimatur of a larger Bench.</b></p><p><b>20. In the conspectus of the aforesaid, if we examine the facts of the\r\npresent case, the hyper-technical view sought to be taken of non-signing\r\nand verification of the index and the synopsis has been rightly rejected by\r\nthe High Court.\r\n</b></p><p><b>21. Thus, the real and core question before us is that in view of the\r\nallegations of the alleged non-disclosure of assets in Form-26 by\r\nrespondent No.1 being cited as “corrupt practice”, would it be mandatory&nbsp;for the election petitioner to file an affidavit in Form-25 and what would\r\nbe the consequences of not filing such an affidavit.</b></p><p><b>22. We may take note of the Constitution Bench judgment of this\r\nCourt in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore17\r\nwhich opined that the defect in verification of an affidavit cannot be a\r\nsufficient ground for dismissal of the petitioner’s petition summarily and\r\nsuch an affidavit can be permitted to be filed later. This Constitution\r\nBench judgment was also referred to in G.M. Siddeshwar18 case to come\r\nto a conclusion that non-compliance with proviso to Section 83(1) of the\r\nRP Act was not fatal to the maintainability of an election petition and the\r\ndefect could be remedied, i.e., even in the absence of compliance, the\r\npetition would still be called an election petition. We cannot say that the\r\nHigh Court fell into an error while considering the election petition as a\r\nwhole to come to the conclusion that the allegations of the appellant were\r\nnot confined only to Section 33A of the RP Act, but were larger in ambit\r\nas undue influence and improper acceptance of nomination of respondent\r\nNo.1 were also pleaded as violation of the mandate under Sections 123\r\nand 100 of the RP Act.</b></p><p><b>23. However, we are not persuaded to agree with the conclusion\r\narrived at by the High Court that the non-submission of Form 25 would\r\nlead to the dismissal of the election petition. We say so because, in our\r\nview, the observations made in Ponnala Lakshmaiah19 case which have\r\nreceived the imprimatur of the three Judges Bench in G.M. Siddeshwar20\r\ncase appear not to have been appreciated in the correct perspective. In\r\nfact, the G.M. Siddeshwar21 case has been cited by the learned Judge to\r\ndismiss the petition. If we look at the election petition, the prayer clause\r\nis followed by a verification. There is also a verifying affidavit in support\r\nof the election petition. Thus, factually it would not be appropriate to say\r\nthat there is no affidavit in support of the petition, albeit not in Form 25.\r\nThis was a curable defect and the learned Judge trying the election\r\npetition ought to have granted an opportunity to the appellant to file an\r\naffidavit in support of the petition in Form 25 in addition to the already\r\nexisting affidavit filed with the election petition. In fact, a consideration\r\nof both the judgments of the Supreme Court referred to by the learned\r\nJudge, i.e. Ponnala Lakshmaiah22 as well as G.M. Siddeshwar23, ought&nbsp;to have resulted in a conclusion that the correct ratio in view of these\r\nfacts was to permit the appellant to cure this defect by filing an affidavit\r\nin the prescribed form.</b></p><p><b>24. The arguments of learned counsel for respondent No.1 were\r\npredicated on the distinction between the absence of an affidavit and a\r\ndefective affidavit. This pre-supposes that for an opportunity of cure to\r\nbe granted, there must be the submission of a Form 25 affidavit which\r\nmay be defective. This would be very narrow reading of the provisions.\r\nOnce there is an affidavit, albeit not in Form 25, the appropriate course\r\nwould be to permit an affidavit to be filed in Form 25. We have to\r\nappreciate that the petition is at a threshold stage. It is not as if the\r\nappellant has failed to cure the defect even on being pointed out so. This\r\nis not a case where the filing of an affidavit now in Form 25 would grant\r\nan opportunity for embellishment as is sought to be urged on behalf of\r\nrespondent No.1.<br></b></p><p><b>25. The appellant states the case clearly and in no uncertain terms with\r\nsupporting material in the election petition. Whether the violation is\r\nmade out by respondent no.1 or not would be a matter of trial but\r\ncertainly not a matter to be shut out at the threshold.<br></b></p><p><b>26. The result of the aforesaid is that the impugned order of the\r\nlearned single Judge dated 17.1.2020 is set aside and the application filed\r\nby respondent no.1 under Order 7 Rule 11, S. 151 of the said Code and S.\r\n86(1) of the RP Act would stand dismissed with liberty to the appellant to\r\nfile an appropriate affidavit in Form 25 within fifteen (15) days from\r\ntoday. The further proceedings in the election petition are required to be\r\ntaken up urgently as almost two and a half years have gone on the\r\npreliminary skirmishes rather than the meat of the matter, which we are\r\nsure the learned single Judge of the High Court would so do&nbsp;</b></p><p><b>27. The appeal is accordingly allowed leaving the parties to bear their\r\nown costs.</b></p><p>\r\n<br></p>', '1e964b6c9629459e30fd1bb864842574.JPG', 'cbcf5e855bac8751ed4403c3aa600aa6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-13', 1, '', '', '2021-12-14 05:27:31', '2021-12-14 05:27:31'),
(4522, '05vVnL36udx8jRhlJ7ZquO3SB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Muslim Personal Law cannot prevail over Statute passed by competent legislature. Deed of settlement recognized under the Karnataka Stamp Act prevails over Shariat Law to the contrary. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sultan Mohiyuddin and others Vs Habbebunnissa and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>RFA 626 of 2013 decided on 25 April 2024.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ananth Ramanath Hegde.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Whether the Muslim Personal Law (Shariat) Application Act, 1937, overrides Section 2(q) and Article 48 of the  Karnataka Stamp Act 1957, which deal with the contract of “settlement” is  the question that requires consideration in this appeal.  </span><br></b></p><p><b>21. The following points arise for consideration:</b></p><p><i><b> (a)  Whether the transfer of property through a \'settlement deed\' to some of his family members to the exclusion of other family members, is barred under Shariat law? </b></i></p><p><i><b>(b) Whether the Trial Court is justified in granting a decree for partition without there being a prayer for cancellation of the settlement deed and the sale deeds in favour of the defendants?</b></i></p><p><b><i> (c) Whether the suit is barred by limitation? </i><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">22. Transfer of property through a settlement deed is one of the modes of transfer recognised under law, though the transfer/settlement through a settlement deed is not specifically provided in the Transfer of Property Act, 1882. The term “settlement” is defined under Section 2(q) of The Karnataka Stamp Act, 1957 (for short \'Act of 1957\'). Article 48 of the Act of 1957 deals with the stamp duty payable on the settlement deed. </span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">23. Section 2(q) of the Act of 1957 reads as under:</span><br></b></p><p><i><b> (q) \"Settlement\" means any non-testamentary disposition in writing, immoveable property made-</b></i></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>(i) of moveable or in consideration of marriage,  </b></i></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><i><b>(ii) to distribute the property of the settler among his family or those for whom he desires to provide, or to provide for some person dependent on him, or  </b></i></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><b><i>(iii) for any religious or charitable purpose;  and includes an agreement in writing to make such a disposition, and where any such disposition has not been made in writing, any instrument recording whether by way of declaration, of trust, or otherwise, the terms of any such disposition.” </i> </b></span></p><p><b>25. for any religious or charitable purpose. In short, the “settlement”, under the Act of 1957 is a contract involving the property. It involves the owner and the beneficiary. Since it is a contract any person competent to contract irrespective of his or her religious faith or belief can enter into a contract of settlement either as a settler or beneficiary.  property. </b></p><p><b>26. To be a settler, in addition, he must own a The definition of “settlement” referred to above does not mandate equal or equitable distribution of the property through a settlement deed. The settler is competent to settle the property in a manner he chooses as long as his discretion does not violate any law. </b></p><p><b>27. The preamble to the Act of 1957 also provides that the object of the Act is to consolidate and amend the law relating to stamps. The application of the Act is not dependent on religious faith or belief. It applies to all, irrespective of their religious faith or belief. In other words, the Act is religionneutral. In other words, any person competent to contract can execute a deed of settlement in respect of the property owned by him whether movable or immovable irrespective of his or her religious faith or belief. </b></p><p><b>28. It may be true that a contract resembling a “settlement” or a transaction which squarely falls within the definition of a “settlement” under Section 2(q) of the Act of 1957 may not find reference in the Quran, or any other religious prescription for that matter. The Shariat law which is believed to be the divine instructions of the Almighty may not envisage all types of contracts which are recognised under contemporary law. That does not mean that the contract entered through a ‘deed of settlement’ is impermissible among the Mohammadans. More importantly, what is not expressly recognised in Shariat law is not necessarily something which is forbidden. It may still be in tune with the philosophy of the Quran. <br></b></p><p><b>30. It is also relevant to refer to Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 (for short ‘the Act of 1937’). Section 2 of the Act of 1937 reads as under:- </b></p><p><i><b>2. Application of personal law to Muslims.- Notwithstanding any custom or usage to the contrary , in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females including personal property inherited or obtained under contract or gift or any other provision of Personal Laws, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties and wakfs (other than charities and charitable institutions and charitable and religious endowments), the rules of decision in cases where the parties are Muslims, shall be the Muslim Personal Law (Shariat).” <br></b></i></p><p><b>33. In addition, the transaction namely the \"contract of  settlement\" is not covered in Section 2 of Act of 1937, though   reference is made to gifts, trusts, and trust properties and wakfs other than charities and charitable institutions and charitable and religious endowments. In other words  <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">\"settlement of property through a settlement deed\" other than gift and trust is kept out of the ambit of Section 2 of the Act of 1937. Assuming that there is anything in Shariat law forbidding the contract of settlement, then also same is not saved under the Act of 1937. </span><br></b></p><p><b>34. There is yet another angle to the point involved. The Act of 1957 has conferred the right to enter into transactions referred to in the said Act including the ‘Contract of  settlement’  on all persons (subject to fulfillment of other criteria) irrespective of their religious faith or belief. The interpretation that the Mohammadans cannot enter into ‘Contract of Settlement’ recognised under the Act of 1957 violates the right guaranteed under Article 14 of the Constitution of India. <br></b></p><p><b>42. In the case of Saiyyid Altaf Ali supra, the Allahabad High Court was considering the validity of a gift deed executed in the apprehension of death on account of illness which eventually is the cause for the death of the donor.  In such circumstances, the gift deed construed as a Will and subjected to the restrictions relating to a Will by a Mohammadan.  In the present case, the deed of settlement in question cannot be construed the one executed in apprehension <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">of illness which is the cause of death of the settler.  The settler died 2 years 10 months after the execution of the settlement deed. There is nothing on record to hold that it was an instrument executed on a death bed. </span></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">43. The finding of the Trial Court that the defendants are not in a possession of the property pursuant to the settlement deed is also in correct as the recital in the deed itself would demonstrate that the possession of the property is transferred. </span><br></b></p><p><b>ORDER</b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(ii) The appeal is allowed.</b></span></p>', 'fbcd589b222785d6e9fc95a17ef07543.jpeg', '0a6e3a5ee1541e43a311d99ea058a63d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2024-05-27', 1, '', '', '2024-05-26 18:24:23', '2024-05-27 08:44:09');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1230, 'EMwv66yqucRloWnepjLUQrtyH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SC Judgment that Consumer Forum cannot condone delay of more than 45 days in filing version in consumer cases does NOT apply to cases pending as of March 4, 2020.  Supreme Court. ', '<p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Diamond Exports & anr vs </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">United India Insurance Company Limited & Ors<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Civil Appeal 7546 of 2021 decided on 14 December 2021<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice Dr Dhananjaya Y Chandrachud, Justice Surya Kant and Vikram Nath<br>Judgment Link: </span><a href=\"https://main.sci.gov.in/supremecourt/2020/13793/13793_2020_4_1501_32125_Judgement_14-Dec-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/13793/13793_2020_4_1501_32125_Judgement_14-Dec-2021.pdf</a><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p><b>The judgment of the Constitution Bench in New India Assurance Company\r\nLimited (supra) has held that the outer limit of time for filing a written statement in\r\nSection 13 of the Consumer Protection Act 1986. </b></p><p><b>9. Prior to the judgment of the Constitution Bench in New India Assurance\r\nCompany Limited (supra), there was a judgment of a three-judge Bench of this\r\nCourt in Dr J J Merchant v. Shrinath Chaturvedi5 which held that to ensure a\r\nspeedy trial, the legislative mandate of not granting more than forty-five days to\r\nsubmit the written statement requires adherence, failing which the purpose of the\r\nstatute would not be fulfilled. Several conflicting decisions of this Court6 led to a\r\nreference to the Constitution Bench. Eventually, as noted above, the Constitution\r\nBench in New India Assurance Company Limited (supra) held that the District\r\nForum has no power to condone a delay beyond a discretionary period of fifteen\r\ndays, in addition to thirty days as envisaged in Section 13 of the Consumer\r\nProtection Act 1986. However, given the conflicting decisions which previously held\r\nthe field, the judgment has been made prospective.  </b></p><p><b>10. The issue in the present appeal pertains to a situation where prior to the\r\ndecision of the Constitution Bench, the NCDRC had condoned a delay for a period\r\nbeyond the prescribed statutory outer limit. In the present case, the NCDRC had\r\nexercised its discretion on 25 February 2020 to condone the delay prior to the\r\ndecision of the Constitution Bench on 4 March 2020. In Reliance General\r\nInsurance Company Limited (supra), a two-Judge Bench of this Court had, on 10\r\nFebruary 2017, issued directions to the consumer fora as regards applications for condonation during the pendency of the reference to the Constitution Bench.</b></p><p><b>14 To recapitulate, in Daddy’s Builders (supra), this Court refused to interfere in\r\na decision of the NCDRC which had affirmed the judgment of the SCDRC rejecting\r\nthe application for condonation. The application for condonation had not been\r\nentertained on merits. However, there are observations in Daddy’s Builders\r\n(supra), based on the decision of the Constitution Bench, which state that a delay\r\nbeyond the outer limit prescribed by Section 13 could not have been condoned.\r\nWhile this is the position which emerges from the decision of the Constitution Bench,\r\nthe decision has been made prospective. In Daddy’s Builders (supra) the\r\napplication for condonation had been filed before the decision of the Constitution\r\nBench and had been rejected on merits. Strictly speaking, the observations in\r\nDaddy’s Builders (supra) were not necessary for its decision since, even on merits,\r\nno case for condonation had been found by the NCDRC in that case. As noted\r\nabove, this Court in Daddy’s Builders (supra) after noticing the decision in\r\nReliance General Insurance Company (supra) held that it left the discretion to be\r\nexercised by the fora during the pendency of the reference to the Constitution Bench\r\nand in that case, the NCDRC found no reason to condone the delay. The subsequent observation of this Court in Daddy’s Builders (supra) which implies that\r\nthe principle laid down by the Constitution Bench will even apply to applications for\r\ncondonation filed prior to the decision of the Constitution Bench were unnecessary\r\n(once it had been held that even on merits there was no case for condonation).\r\nMoreover, those observations are with respect not consistent with the legal position\r\nthat the Constitution Bench gave prospective effect to its decision.</b></p><p><b>15 The discretion for condonation of delay under Section 13 of the Consumer\r\nProtection Act 1986 is specifically circumscribed by the statute. Similar statutory\r\nprovisions exist in the Arbitration and Conciliation Act 2015 and the Insolvency and\r\nBankruptcy Code 2016 though in a different statutory context – facilitating the\r\nsanctity of the arbitral process in the former and the legislative intent of ensuring\r\ntimely disposal and corporate rehabilitation in the latter. The Consumer protection\r\nAct 1986 and its successor are social welfare legislations designed to protect the\r\ninterests of consumers.</b></p><p><b>This was owing to the social welfare intention of the consumer protection legislation,\r\nwhich essentially seeks to protect the rights of consumers who avail of myriad goods\r\nand services. The welfare of litigating consumers has been the guiding principle for\r\ninterpreting several procedural and substantive questions arising out of the\r\nConsumer Protection Act 1986. Recently, a two-judge Bench considered the effect\r\nof the Consumer Protection Act 2019 which amended the pecuniary jurisdiction of\r\nconsumer fora, on pending proceedings.<br></b></p><p><b>A similar principle is inherent in the decision of the Constitution Bench in New India\r\nAssurance Company Ltd. (supra). However, given the conflicting decisions\r\nconcerning the nature of such discretion, the Constitution Bench considered it\r\nappropriate to give prospective effect to the decision. It did not make a distinction\r\nbetween applications for condonation which had been decided and those which\r\nwere pending on the date of the decision. Thus, the decision in Daddy’s Builders\r\n(supra) would not affect applications that were pending or decided before 4 March\r\n2020. Such applications for condonation would be entitled to the benefit of the\r\nposition in Reliance General Insurance Company Limited (supra) which directed\r\nconsumer fora to render a decision on merits. We have expounded on the above\r\nprinciples in order to adopt a bright-line standard which obviates uncertainty on the\r\nlegal position before the consumer fora and obviates further litigation. <br></b></p><p><b><br></b></p><p><b> </b><br></p>', 'd3115e7830e07ab8600505664ab42eb4.JPG', '15709f29dc0777c399fdf5cc6cd9132a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-14', 1, '', '', '2021-12-15 04:44:43', '2021-12-15 04:45:11'),
(1231, 'jGaUmNoYhjevcl1i24DmkN1wb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Delay in lodging complaint and registration of FIR. Charge-sheet filed by the officer of the CID who is not the officer in-charge of a police station. Karnataka High Court quashes entire criminal proceedings as illegal. ', '<p><span style=\"font-weight: bolder;\">Manjunath Hebbar vs The State of Karnataka and another <br>Writ Petition 56754 of 2018 decided on 13 December 2021</span></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The petitioner is before this Court calling in question the proceedings in C.C.No.26533 of 2018 pending before the I Additional Chief Metropolitan Magistrate, Bangalore, as also, the FIR in Crime No.257 of 2015 and charge sheet registered against the  </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner in Charge Sheet No.6 of 2018  dated 07.09.2018 for offences punishable under Sections 323, 376, 376(2)(f)(i)(n), 498A and 109 of the IPC. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">On a perusal of the law declared by the Apex Court  in  the afore-extracted judgments  what  would unequivocally emerge is that delay in lodging the FIR would vitiate the proceedings unless delay  is satisfactorily explained. The delay that the Apex Court considers in the aforementioned cases were all considering the offence of rape and the delay in those cases ranged from 8 days to 7 months.</b></p><p><b>13. The delay in the case at hand even on perusal  of the complaint is close to 3 years and 6 months as the date of desertion even according to the complaint is on 18.03.2012, and the complaint is registered on 29.08.2015. There is  absolutely  no  explanation  for  such delay anywhere in the complaint  or  the  statements. The narration in the complaint insofar as it concerns the petitioner ranges from the events that have happened from the years 2009 to 2015. Therefore, the delay in lodging the complaint and registration of FIR, </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for the offences alleged has undoubtedly vitiated  the  very initiation of proceedings against the petitioner. The first point that has arisen for consideration is answered against the prosecution. </b></p><p><b>(ii) Whether the learned Magistrate taking cognizance of the offence on the  basis  of  a final report filed by the policeman who was in fact not an officer in-charge of the police station, has vitiated the entire proceedings?</b></p><p><b>19. Therefore, the unmistakable conclusion on a coalesce of the aforesaid direction, the notification, the investigation conducted by the officer of the CID and the law laid down by the Apex Court  interpreting  Section 173 of the Cr.P.C. would be that the chargesheet that is filed by the officer of the CID who is not the officer in- charge of a police station would stand vitiated. Accordingly, this point as well, is answered against the prosecution.</b></p><p><b>20. The submission of the learned High Court Government Pleader that this Court should hold its  hands in considering and answering  the  subject  issue  on the score that, a Co-ordinate Bench has taken a  similar view and the same is stayed by Hon\'ble Apex Court is unacceptable, in the light of enunciation of law by the Apex Court in the afore-extracted judgments.</b></p><p><b>(b) The complaint dated 29.08.2015, FIR in Crime No.257 of 2015 dated 29.08.2015, charge sheet No.06/2018 dated 07-09-2018 and proceedings in C.C.No.26533 pending before the I Additional Chief Metropolitan Magistrate, Bengaluru stand  quashed  qua the petitioner, in respect of the  subject matter in this writ petition.</b></p><p><b>(c) The petitioner shall be entitled to all consequential benefits that would flow from the quashing of the aforesaid orders.</b></p><p><br></p>', 'aaff40ef5e50bbb2d0fae23638678298.jpg', 'd54ea7450d5e05301abd8c3d1d59afa0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-14', 1, '', '', '2021-12-15 05:36:32', '2021-12-15 05:37:03'),
(1232, 'MLLWur6wZBaqNO9e0N0I27AEa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Magistrate can NOT refer complaint alleging defamation to police for investigation. He must decide on the basis of sworn statement and witnesses. Karnataka High Court. ', '<div class=\"WordSection1\">\r\n\r\n<p class=\"MsoListParagraph\" style=\"margin-top:9.45pt;margin-right:21.55pt;\r\nmargin-bottom:0cm;margin-left:55.1pt;margin-bottom:.0001pt;line-height:203%;\r\nmso-list:l0 level2 lfo1;tab-stops:122.95pt\"><b>Venkataramana vs&nbsp;</b><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Gopalakrishna D. and others&nbsp;<br>Criminal Petition 8578 of 2021 decided on 3 December 2021<br></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3.<span style=\"white-space:pre\">	</span>The petitioner is the complainant in PCR No.960/2021. The&nbsp; petitioner&nbsp; alleges&nbsp; the&nbsp; offence of defamation punishable under Sections 499 and&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">500 of IPC, being committed by the respondents. Learned Magistrate accepted the affidavit of the complainant by way of sworn statement&nbsp; and marked 9 documents as per Ex.P.1 to P.9 produced by the complainant. On 09.04.2021, the learned Magistrate posted the case for orders to be passed&nbsp; on 21.04 .2021. On 21.04.2021, he passed the&nbsp; order referring the case for investigation by the police under Section 156( 3) of Cr.P.C.</b></p><p class=\"MsoListParagraph\" style=\"margin-top:9.45pt;margin-right:21.55pt;\r\nmargin-bottom:0cm;margin-left:55.1pt;margin-bottom:.0001pt;line-height:203%;\r\nmso-list:l0 level2 lfo1;tab-stops:122.95pt\"><b>4. Section 199(1) of Cr.P.C., clearly states that <i>“No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860 )&nbsp; except upon a&nbsp; complaint made by some person aggrieved”.</i> That means, in case whenever an offence of defamation is alleged&nbsp; to have been committed, the Magistrate has to entertain the complaint and proceed further after recording sworn statement of the complainant. There is no scope for referring the matter to the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">police for investigation under Section 156(3) of&nbsp; Cr.P. C. Magistrate has&nbsp; to&nbsp; arrive at&nbsp; a&nbsp; satisfaction to issue process to the&nbsp; accused&nbsp; based&nbsp; on&nbsp; the sworn statement and other documents that the complainant produces before the Court. Having recorded the sworn statement,&nbsp; the&nbsp; police&nbsp; cannot be directed to hold an investigation under Section 156(3) of Cr.P.C. Therefore the impugned order needs to be set- aside. Accordingly the following:</b></p><p class=\"MsoListParagraph\" style=\"margin-top:9.45pt;margin-right:21.55pt;\r\nmargin-bottom:0cm;margin-left:55.1pt;margin-bottom:.0001pt;line-height:203%;\r\nmso-list:l0 level2 lfo1;tab-stops:122.95pt\"><b>ORDER</b></p><p class=\"MsoListParagraph\" style=\"margin-top:9.45pt;margin-right:21.55pt;\r\nmargin-bottom:0cm;margin-left:55.1pt;margin-bottom:.0001pt;line-height:203%;\r\nmso-list:l0 level2 lfo1;tab-stops:122.95pt\"><b>Petition is allowed.</b></p><p class=\"MsoListParagraph\" style=\"margin-top:9.45pt;margin-right:21.55pt;\r\nmargin-bottom:0cm;margin-left:55.1pt;margin-bottom:.0001pt;line-height:203%;\r\nmso-list:l0 level2 lfo1;tab-stops:122.95pt\"><b>Order dated 21. 04.2021 , passed by the learned XXXII Additional Chief Metropolitan Magistrate, Bengaluru, in PCR No.960/2021 is set-aside.</b></p><p class=\"MsoListParagraph\" style=\"margin-top:9.45pt;margin-right:21.55pt;\r\nmargin-bottom:0cm;margin-left:55.1pt;margin-bottom:.0001pt;line-height:203%;\r\nmso-list:l0 level2 lfo1;tab-stops:122.95pt\"><b>The Magistrate shall decide to issue process to the accused only on the basis of the sworn statement of the complainant and the witnesses if any&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and the documents that the complainant has produced.</b></p><div><br></div></div>', '04d7a26607441214764c289504071cce.jpg', '181bb70dfe44ef9c2b333c8e5a1575f9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-14', 1, '', '', '2021-12-15 05:53:48', '2021-12-15 05:53:48'),
(1233, 'tYXjHSORlBnbBZvZXUoHGZzA8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Writ of mandamus can NOT be issued by the High Court directing a financial institution/bank to positively grant the benefit of One Time Settlement to a borrower. Supreme Court. ', '<p><b>The Bijnor Urban Cooperative Bank Limited, Bijnor &amp; others vs&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Meenal Agarwal &amp; others<br></span>Civil Appeal 7411 of 2021 decided on 15 December 2021<br>Justice M.R. Shah and Justice B.V. Nagarathna&nbsp;<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2021/21367/21367_2021_13_1501_32142_Judgement_15-Dec-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/21367/21367_2021_13_1501_32142_Judgement_15-Dec-2021.pdf</a></span><br></b></p><p><b>5. Having heard learned counsel for the respective parties at length,\r\nthe following issues/questions are posed for consideration of this Court:\r\ni) Whether benefit under the OTS Scheme can be prayed as a\r\nmatter of right?;\r\nii) Whether the High Court in exercise of powers under Article\r\n226 of the Constitution of India can issue a writ of mandamus\r\ndirecting the Bank to positively consider the grant of benefit under\r\nthe OTS Scheme and that too de hors the eligibility criteria\r\nmentioned under the OTS Scheme?</b></p><p><b>5.2 Therefore, as per the guidelines issued, the grant of benefit of OTS\r\nScheme cannot be prayed as a matter of right and the same is subject to\r\nfulfilling the eligibility criteria mentioned in the scheme. The defaulters\r\nwho are ineligible under the OTS Scheme are mentioned in clause 2.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reproduced hereinabove. A wilful defaulter in repayment of loan and a\r\nperson who has not paid even a single installment after taking the loan\r\nand will not be able to pay the loan will be considered in the category of\r\n“defaulter” and shall not be eligible for grant of benefit under the OTS\r\nScheme. Similarly, a person whose account is declared as “NPA” shall\r\nalso not be eligible. As per the guidelines, the Bank is required to\r\nconstitute a Settlement Advisory Committee for the purpose of\r\nexamining the applications received and thereafter the said Committee\r\nhas to take a decision after considering whether a defaulter is entitled to\r\nthe benefit of OTS or not after considering the eligibility as per the OTS\r\nScheme. While making recommendations, the Settlement Advisory\r\nCommittee has to consider whether efforts have been made to recover\r\nthe loan amount and the possibility of recovery has been minimized,\r\nmeaning thereby if there is possibility of recovery of the amount, either\r\nby initiating appropriate proceedings or by auctioning the property\r\nmortgaged and/or the properties given as a security either by the\r\nborrower and/or by guarantor, the application submitted by the borrower\r\nfor grant of benefit under the OTS Scheme can be rejected.</span></b></p><p><b>11. The sum and substance of the aforesaid discussion would be that\r\nno writ of mandamus can be issued by the High Court in exercise of\r\npowers under Article 226 of the Constitution of India, directing a financial\r\ninstitution/bank to positively grant the benefit of OTS to a borrower. The\r\ngrant of benefit under the OTS is always subject to the eligibility criteria\r\nmentioned under the OTS Scheme and the guidelines issued from time\r\nto time. If the bank/financial institution is of the opinion that the loanee\r\nhas the capacity to make the payment and/or that the bank/financial\r\ninstitution is able to recover the entire loan amount even by auctioning\r\nthe mortgaged property/secured property, either from the loanee and/or\r\nguarantor, the bank would be justified in refusing to grant the benefit\r\nunder the OTS Scheme. Ultimately, such a decision should be left to the&nbsp;commercial wisdom of the bank whose amount is involved and it is\r\nalways to be presumed that the financial institution/bank shall take a\r\nprudent decision whether to grant the benefit or not under the OTS\r\nScheme, having regard to the public interest involved and having regard\r\nto the factors which are narrated hereinabove.&nbsp;</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></p>', 'dfba09f1ca2ce67f9b22c1dd1195d2d8.JPG', '87a84848183227c1eeb4e8078c6501b2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-15', 1, '', '', '2021-12-16 03:23:55', '2021-12-16 03:23:55'),
(1234, 'U57BvUePtqrFYRKtOLh11oina', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'IBC. Adjudicating Authority cannot compel a party to the proceedings before it to settle a dispute. It can either admit or reject the application under Section 7. Supreme Court. ', '<p><b>E S Krishnamurthy &amp; Ors. vs M/s Bharath Hi Tech Builders Pvt. Ltd.<br>Civil Appeal No 3325 of 2020 decided on 14 December 2021<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Dr Dhananjaya Y Chandrachud and&nbsp;Justice A S Bopanna<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/18599/18599_2020_4_1502_32125_Judgement_14-Dec-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/18599/18599_2020_4_1502_32125_Judgement_14-Dec-2021.pdf</a></span></b></p><p><b>20 The central question in this appeal then is whether the NCLT and the NCLAT\r\nwere correct in their approach of rejecting the appellants’ petition under Section 7 of\r\nthe IBC at the ‘pre-admission stage’, and directing them to settle with the respondent\r\nwithin 3 months. Section 7 of the IBC provides for the initiation of CIRP by a financial\r\ncreditor or a class of financial creditors.&nbsp;<br></b></p><p><b>21 Sub-Section (1) of Section 7 enables the financial creditor to file an\r\napplication for initiation of CIRP against the corporate debtor before the Adjudicating\r\nAuthority “when a default has occurred”.&nbsp;</b></p><p><b>22 If the above criteria are met, the financial creditor can make an application\r\nunder sub-Section (2) of Section 7, in the manner prescribed, along with the\r\nnecessary fees. Sub-Section (3) requires the financial creditor, inter alia, to furnish a\r\nrecord of the default with the information utility or such other record or evidence of\r\ndefault as may be specified along with the application. Under sub-Section (4), the\r\nAdjudicating Authority must, within 14 days of the receipt of the application under\r\nsub-Section (2), ascertain the existence of a default from the record of an\r\ninformation utility or on the basis of other information furnished by the financial\r\ncreditor under sub-Section (3).<br></b></p><p><b>24 On a bare reading of the provision, it is clear that both, Clauses (a) and (b) of\r\nsub-Section (5) of Section 7, use the expression “it may, by order” while referring to\r\nthe power of the Adjudicating Authority. In Clause (a) of sub-Section (5), the\r\nAdjudicating Authority may, by order, admit the application or in Clause (b) it may,\r\nby order, reject such an application. Thus, two courses of action are available to the\r\nAdjudicating Authority in a petition under Section 7. The Adjudicating Authority must\r\neither admit the application under Clause (a) of sub-Section (5) or it must reject the\r\napplication under Clause (b) of sub-Section (5). The statute does not provide for the\r\nAdjudicating Authority to undertake any other action, but for the two choices\r\navailable.<br></b></p><p><b>25 In Innoventive Industries (supra), a two-judge Bench of this Court has\r\nexplained the ambit of Section 7 of the IBC, and held that the Adjudicating Authority\r\nonly has to determine whether a “default” has occurred, i.e., whether the “debt”\r\n(which may still be disputed) was due and remained unpaid. If the Adjudicating\r\nAuthority is of the opinion that a “default” has occurred, it has to admit the\r\napplication unless it is incomplete.&nbsp;<br></b></p><p><b>26 In the present case, the Adjudicating Authority noted that it had listed the\r\npetition for admission on diverse dates and had adjourned it, inter alia, to allow the\r\nparties to explore the possibility of a settlement. Evidently, no settlement was arrived\r\nat by all the original petitioners who had instituted the proceedings. The Adjudicating\r\nAuthority noticed that joint consent terms dated 12 February 2020 had been filed\r\nbefore it. But it is common ground that these consent terms did not cover all the\r\noriginal petitioners who were before the Adjudicating Authority. The Adjudicating\r\nAuthority was apprised of the fact that the claims of 140 investors had been fully\r\nsettled by the respondent. The respondent also noted that of the claims of the\r\noriginal petitioners who have moved the Adjudicating Authority, only 13 have been&nbsp;settled while, according to it “40 are in the process of settlement and 39 are pending\r\nsettlements”. Eventually, the Adjudicating Authority did not entertain the petition on\r\nthe ground that the procedure under the IBC is summary, and it cannot manage or\r\ndecide upon each and every claim of the individual home buyers. The Adjudicating\r\nAuthority also held that since the process of settlement was progressing “in all\r\nseriousness”, instead of examining all the individual claims, it would dispose of the\r\npetition by directing the respondent to settle all the remaining claims “seriously”\r\nwithin a definite time frame. The petition was accordingly disposed of by directing\r\nthe respondent to settle the remaining claims no later than within three months, and\r\nthat if any of the remaining original petitioners were aggrieved by the settlement\r\nprocess, they would be at liberty to approach the Adjudicating Authority again in\r\naccordance with law. The Adjudicating Authority’s decision was also upheld by the\r\nAppellate Authority, who supported its conclusions. <br></b></p><p><b>27 The Adjudicating Authority has clearly acted outside the terms of its\r\njurisdiction under Section 7(5) of the IBC. The Adjudicating Authority is empowered\r\nonly to verify whether a default has occurred or if a default has not occurred. Based\r\nupon its decision, the Adjudicating Authority must then either admit or reject an\r\napplication respectively. These are the only two courses of action which are open to\r\nthe Adjudicating Authority in accordance with Section 7(5). The Adjudicating\r\nAuthority cannot compel a party to the proceedings before it to settle a dispute.</b></p><p><b>28 Undoubtedly, settlements have to be encouraged because the ultimate\r\npurpose of the IBC is to facilitate the continuance and rehabilitation of a corporate&nbsp;debtor, as distinct from allowing it to go into liquidation. As the Statement of Objects\r\nand Reasons accompanying the introduction of the Bill indicates, the objective of the\r\nIBC is to facilitate insolvency resolution “in a time bound manner” for maximisation of\r\nthe value of assets, promotion of entrepreneurship, ensuring the availability of credit\r\nand balancing the interest of all stakeholders. What the Adjudicating Authority and\r\nAppellate Authority, however, have proceeded to do in the present case is to\r\nabdicate their jurisdiction to decide a petition under Section 7 by directing the\r\nrespondent to settle the remaining claims within three months and leaving it open to\r\nthe original petitioners, who are aggrieved by the settlement process, to move fresh\r\nproceedings in accordance with law. Such a course of action is not contemplated by\r\nthe IBC<br></b></p><p><b>29 The IBC is a complete code in itself. The Adjudicating Authority and the\r\nAppellate Authority are creatures of the statute. Their jurisdiction is statutorily\r\nconferred. The statute which confers jurisdiction also structures, channelises and\r\ncircumscribes the ambit of such jurisdiction. Thus, while the Adjudicating Authority\r\nand Appellate Authority can encourage settlements, they cannot direct them by\r\nacting as courts of equity.<br></b></p><p><b>34 We accordingly allow the appeal&nbsp;</b><br></p>', 'd4aaec8813e228c34f612a9b05b4adb3.JPG', '72dad58ed6b626a97bd8922a5515d584.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-15', 1, '', '', '2021-12-16 04:25:41', '2021-12-16 04:25:41'),
(2925, 'ge49MpaJPAlV6sTApZdGeCjLu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Tax Law. Mens rea is not an essential ingredient for contravention of the provisions of a civil Act. Intention of the parties committing such violation becomes immaterial. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>State of Gujarat and another Vs M/s Saw Pipes Ltd.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3481 of 2022 decided on 17 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 04.08.2016 passed by the High Court of Gujarat at Ahmedabad in Tax Appeal No. 1283/2006, by which, the Division Bench of the High Court has set aside the penalty and interest levied under sub­section (6) of Section 45 of the Gujarat Sales Tax Act, 1969 (hereinafter referred to as the Act, 1969), the State of Gujarat has preferred the present appeal. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.1 The assessee preferred a first appeal before the First Appellate Authority i.e., Joint Sales Tax Commissioner. By order dated 30.07.2005, the First Appellate Authority dismissed the said appeal. The assessee approached the Gujarat Value Added Tax Tribunal by filing Second Appeal No. 820/2005. The learned Tribunal vide order dated 29.09.2006 dismissed the appeal and confirmed the orders passed by the AO as well as the First Appellate Authority and thereby confirmed the aforesaid demand of difference in tax as well as the levy of interest under Section 47 (4A) and penalty under Section 45(6) of the Act, 1969. The assessee preferred a further appeal before the High Court being Tax Appeal No. 1283/2006. Before the High Court, the learned Senior Advocate appearing on behalf of the assessee fairly conceded that looking to the fact that the authority has passed the assessment order on the basis of material available with it, they were required to pay the tax on the basis of 12% and that has been paid by the assessee since the opinion of the expert was turned out, however, the respondent – assessee restricted the appeal to the extent of challenging the levy of penalty and interest only by submitting that the assessee was under a bonafide belief that the works contract of the assessee would fall under Entry­ requiring payment of tax at the rate of 2% only. Reliance was placed on the decision of the High Court in the case of Brooke Bond India Limited Vs. State of Gujarat; 1998 JX (Guj) 128 and it was prayed that the imposition of penalty and interest not be upheld. By the impugned judgment and order, the High Court has set aside the penalty and interest on the ground that the assessee was under the bonafide opinion and following the advice, paid the tax at 2% and that thereafter, when the enhanced tax as imposed has already been paid by the assessee, the penalty and interest is not required to be paid by the assessee. The High Court allowed the appeal to the aforesaid extent, deleting the penalty and interest levied under Section 45(6) and Section 47 (4A) of the Act, 1969. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.2 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court whereby the penalty and interest has been set aside, the State has preferred the present appeal</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b>6. At the outset, it is required to be noted that the assessing officer levied the penalty and interest against the respondent – assessee under the provisions of Section 45(6) and Section 47(4A) of the Act, 1969, which levy came to be confirmed by the learned Tribunal. However, by the impugned judgment and order, the High Court has set aside the levy of penalty and interest, mainly on the grounds that the tax imposed had already been paid and that the assessee was under a bonafide opinion as to its tax liability and was following expert advice and therefore, paid the tax at the rate of 2%. Therefore, according to the High Court, though not specifically mentioned/opined, there was no mens rea on the part of the respondent – assessee in not paying the tax at the rate of 2% and in making the payment of the tax at 2%. Therefore, the short question which is posed for consideration of this Court is whether while imposing/levying penalty and interest leviable under Section 45(6) and Section 47(4A) of the Act, 1969, mens rea on the part of the assessee is required to be considered.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6.2 On a fair reading of Section 45 of the Act, it can be seen that as per sub­section (2) of Section 45 of the Act, 1969, penalty is leviable if it appears to the Commissioner that a dealer has concealed the particulars of any transaction or deliberately furnished inaccurate particulars of any transaction liable to tax. In the present case, it cannot be said that the dealer has concealed the particulars of any transaction or deliberately furnished inaccurate particulars of any transaction liable to tax. However, in so far as penalty leviable under sub­section (6) of Section 45 of the Act, 1969 is concerned, the penalty leviable under the said provision is as such, a statutory penalty and there is no discretion vested with the Commissioner as to whether to levy the penalty leviable under sub­section (6) of Section 45 of the Act, 1969 or not. Sub­section (5) of Section 45 provides that in the case of a dealer where the amount of tax assessed for any period under sections 41 or 50 or re­assessed for any period under Section 45 exceeds the amount of tax already paid by the dealer in respect of such period by more than 25% of the amount of tax so paid, the dealer shall be deemed to have failed to pay the tax to the extent of difference between amount so assessed or re­assessed as aforesaid and the amount paid. Considering sub­section (5) of Section 45 of the Act, 1969, if a dealer is deemed to have failed to pay the tax to the extent mentioned in sub­section (5), there shall be levied on such dealer a penalty not exceeding one and one­half times the difference referred to in sub­section (5). Under the circumstances, to the aforesaid extent and on the difference of tax, as per sub­section (5) of Section 45, the respondent – assessee – dealer shall be liable to pay the penalty as mentioned under subsection (6) of Section 45. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 6.3 Section 45 confers power to levy/impose penalty in certain cases. In certain cases, enumerated in Section 45 of the Act, the penalty imposable is distinct with the assessment such as Section 45(1)(a)(b). However, in so far as penalty imposable under Section 45(5) and 45(6) of the Act is concerned, it has a direct bearing or connection with the order of assessment and the determination of the tax liability. Subsection (5) of Section 45 provides that where in the case of a dealer the amount of tax assessed for any period under Section 41 or 50; or re­assessed for any period under Section 44; exceeds the amount of tax already paid by the dealer under sub­section (1), (2) or (3) of Section 47 of the Act, in respect of such period by more than 25% of the amount of tax so paid, the dealer shall be deemed to have failed to pay the tax to the extent of the difference between the amount so assessed or re­assessed as aforesaid and the amount paid. Sub­section (6) of Section 45 provides that where under sub­section (5), a dealer is deemed to have failed to pay the tax to the extent mentioned in the said sub­section, there shall be levied on such dealer a penalty not exceeding one and one­half times the difference referred to in sub­section (5). Thus, on a bare reading of sub­sections (5) and (6) of Section 45, it is evident that it is integral part of the assessment that the penalty be levied on the difference of amount of tax paid and amount of tax payable as per the order of assessment or re­assessment as the case may and the same shall be automatic. Therefore, when the penalty on the difference of amount of tax paid and tax payable is more than 25% of the amount of tax so paid, there shall be automatic levy of penalty under Section 45(6) of the Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6.4 From the language of Section 45(6) of the Act, it can be seen that the penalty leviable under the said provision is a statutory penalty. The phrase used is “shall be levied.” The moment it is found that a dealer is deemed to have failed to pay the tax to the extent mentioned in sub­section (5) of Section 45, there shall be levied on such dealer a penalty not exceeding one and one­half times the difference referred to in sub­section (5). As per sub­section (5), where in the case of a dealer the amount of tax assessed or re­assessed exceeds the amount of tax already paid by the dealer in respect of such period by more than 25% of the amount of tax so paid, the dealer shall be deemed to have failed to pay the tax to the extent of the difference between the amount so assessed or re­assessed and the amount paid. Therefore, the moment it is found that a dealer is to be deemed to have failed to pay the tax to the extent mentioned in subsection (5), the penalty is automatic. Further, there is no discretion with the assessing officer either to levy or not to levy and/or to levy any penalty lesser than what is prescribed/mentioned in Section 45(6) of the Act, 1969. In that view of the matter, there is no question of considering any mens rea on the part of the assessee/dealer.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6.15 In so far as the reliance placed by the learned counsel on behalf of the respondent – dealer on the decision of this Court in the case of Hindustan Steel Ltd. (supra) is concerned, at the outset, it is required to be noted that the learned Tribunal specifically found that there was nothing on record to prove that there was in fact a bonafide belief of the respondent herein, that it would be required to pay tax at 2% only. As observed hereinabove and on plain reading of Section 45 and Section 47 of the Act, 1969 and as observed hereinabove, on the eventualities occurring under sub­section (5) of Section 45, there shall be levied penalty mentioned in sub­section (6) of Section 45 and the liability to pay the interest is incurred as mentioned in Section 47(4A). The impugned judgment and order passed by the High Court on the grounds that the amount of tax has already been paid by the assessee – dealer; that the assessee – dealer was under the bonafide belief that it was liable to pay the tax at the rate of 2%, is unsustainable. None of the aforesaid grounds would justify deletion of the penalty and interest leviable/payable under Section 45(6) and Section 47(4A) of the Act, 1969. As observed hereinabove, in the case of Shriram Mutual Fund (supra), this Court distinguished the decision in the case of Hindustan Steel Ltd. (supra) and even set aside the order passed by the Tribunal which was relying upon the decision in case of Hindustan Steel Ltd. (supra). </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. In view of the above and for the reasons stated above, the present appeal succeeds. The impugned judgment and order passed by the High court is hereby quashed and set aside. The order(s) passed by the Assessing Officer confirmed up to the Tribunal to levy penalty and interest under Section 45(6) and Section 47(4A) of the Act, 1969, are hereby restored. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Present appeal is accordingly allowed. In the facts of the case, there shall be no order as to costs</b></font></p>', '8d4a88cf686ea3ace7b51563d98a8692.jpeg', 'f197e06defc2382cb0cb236028fd5d27.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-20', 1, '', '', '2023-04-19 16:19:49', '2023-04-20 08:07:09'),
(1236, 'yaaTbISGFxTj4Fs7uiAQqTcaf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Defence under Section 27 of the Contract Act (agreement in restraint of trade) is NOT available to a person who is not a party to the agreement. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">M/S Symphonymax vs M/S ICAD Engineering Pvt. Ltd and another<br>Civil Revision Petition 360 of 2016 decided on 11 August 2021</span></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Whether a subsequent employer can invoke Section 27 of the Indian Contract Act and file an application under Order VII Rule 11 (a) and (d) of Code of Civil Procedure?</b></p><p><b>12.1. The reliefs sought for in the suit are as per the prayers which have been extracted hereinabove. A perusal of the said prayers would indicate that there is a judgment and&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">decree of permanent injunction sought for restraining both the defendants, their agents, servants, contractors or anybody claiming under them from carrying on business in India or abroad, carrying on business with, dealing with or any manner transacting with any of the customers of the Plaintiff by utilizing the confidential information, whether in the form of technical data, correspondence and/or information pertaining to<span style=\"white-space:pre\">	</span>design methodologies, marketing plans, pricing models etc</b></p><p><b>12.2. Secondly, judgment and decree of permanent injunction is also sought for restraining the defendants from utilizing or disclosing confidential information of the Plaintiff and third prayer which has been sought for is restraining 1st Defendant from working, dealing with or functioning in any manner or capacity or carrying on business either with the 2nd Defendant or anybody else in the field competing with the Plaintiff’s business.</b></p><p><b>12.7. Section 27 of the Indian Contract Act is reproduced hereunder for easy reference:</b></p><p><b>27. Agreement in restraint of trade, void.—Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void. —Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void.” Exception 1.— Saving of agreement not to carry on business of which goodwill is sold.—One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business, within specified local limits, so long as the buyer, or any person deriving title to the goodwill from him, carries on a like business therein, provided that such limits appear to the Court reasonable, regard being had to the nature of the business.</b></p><p><b>12.8. A perusal of the said Section would indicate that every agreement by which anyone is restrained from exercising a profession, trade or business of any kind is to that extent void. The only person who could have taken up such a contention is a party to the agreement/contract, since it is that person who is restrained. Admittedly, the 2nd Defendant is not a party to such contract or agreement. Therefore, it would not be permissible for the 2nd Defendant to take such a stand and seek for rejection of the plaint on the ground that the contract entered into between the Plaintiff and the 1st Defendant is void insofar as the restraint is concerned.</b></p><p><b>12.11. Thus, I answer Point No.1 by holding that a subsequent&nbsp; employer&nbsp; cannot&nbsp; invoke Section&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">27 of the&nbsp; Indian Contract Act and file an application under Order VII Rule 11(a) and&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(d) of CPC.</b></p><div><br></div>', 'b10e8352366bca67207a2960324696ff.jpeg', '0a38958054073d90fb84b163f482acb0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-16', 1, '', '', '2021-12-17 02:38:09', '2021-12-17 02:38:09');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1237, 'E8RTFffuPQGfCi29yii0FO0fE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Limitation Act. Where there is gross negligence, lack of bonafides and/or want of due diligence, delay in filing appeal can not be condoned. Supreme Court. ', '<p><b>Majji Sannemma @ Sanyasirao&nbsp; &nbsp;vs Reddy Sridevi &amp; Ors.<br></b><span style=\"font-weight: bolder;\">Civil Appeal 7696 of 2021 decided on 16 December 2021<br></span><b>Justice M.R. Shah and Justice B.V. Nagarathna&nbsp;<br>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2021/24204/24204_2021_13_1503_32143_Judgement_16-Dec-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/24204/24204_2021_13_1503_32143_Judgement_16-Dec-2021.pdf</a></b></p><p><b>6.1 The High Court has observed that if the delay is condoned no prejudice will be caused to the appellant as the appeal would be heard on merits. The High Court has also observed that there is no wilful negligence on the part of the respondents herein nor it suffers from want of due diligence. However, from&nbsp; the averments&nbsp; in&nbsp; the application&nbsp; for&nbsp; condonation&nbsp; of delay, we are of the opinion that it was a case of a gross negligence and/or want of due diligence on the part of the respondents herein – appellants before the High Court in filing such a belated appeal.&nbsp;</b></p><p><b>6.2 We have gone through the averments in the application for the condonation of delay. There is no sufficient explanation for the period from 15.03.2017 till the Second Appeal was preferred&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;year&nbsp; &nbsp;2021.&nbsp; &nbsp;In&nbsp; &nbsp;the&nbsp; &nbsp;application&nbsp; &nbsp;seeking condonation of delay it was stated that she is aged 45 years and was looking after the entire litigation and that she was suffering from health issues and she had fallen sick from 01.01.2017 to 15.03.2017 and she was advised to take bed rest for the said period. However, there is no explanation for the period after 15.03.2017. Thus, the period of delay from 15.03.2017 till the Second Appeal was filed in the year 2021 has not at all been explained. Therefore, the High Court has not exercised the discretion judiciously.&nbsp;</b></p><p><b>7.1 In the case of&nbsp; Ramlal, Motilal and Chhotelal (supra), it is observed and held as under:­ In construing s. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree­holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree­holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree­holder by lapse of time should not be lightheartedly&nbsp; &nbsp;disturbed.&nbsp; &nbsp;The&nbsp; &nbsp;other&nbsp; &nbsp;consideration&nbsp; &nbsp;which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890) J.L.R. 13 Mad. 269, \"s. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words ‘sufficient cause\' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction&nbsp; &nbsp;nor&nbsp; &nbsp;want&nbsp; &nbsp;of&nbsp; &nbsp;bona&nbsp; &nbsp;fide&nbsp; &nbsp;is&nbsp; &nbsp;imputable&nbsp; &nbsp;to&nbsp; &nbsp;the appellant.\"</b></p><p><b>7.2 In the case of P.K. Ramachandran (supra), while refusing to condone the delay of 565 days, it is observed that in the absence&nbsp; &nbsp;of&nbsp; &nbsp;reasonable,&nbsp; &nbsp;satisfactory&nbsp; &nbsp;or&nbsp; &nbsp;even&nbsp; &nbsp;appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and&nbsp; &nbsp;the&nbsp; &nbsp;courts&nbsp; &nbsp;have&nbsp; &nbsp;no&nbsp; &nbsp;power&nbsp; &nbsp;to&nbsp; &nbsp;extend&nbsp; &nbsp;the&nbsp; &nbsp;period&nbsp; &nbsp;of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously.</b></p><p><b>7.3 In the case of Pundlik Jalam Patil (supra), it is observed as under:­</b></p><p><b><i>“The&nbsp; &nbsp;laws&nbsp; &nbsp;of&nbsp; &nbsp;limitation&nbsp; &nbsp;are&nbsp; &nbsp;founded&nbsp; &nbsp;on&nbsp; &nbsp;public&nbsp; &nbsp;policy. Statutes&nbsp; &nbsp;of&nbsp; &nbsp;limitation&nbsp; &nbsp;are&nbsp; &nbsp;sometimes&nbsp; &nbsp;described&nbsp; &nbsp;as “statutes of peace”. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based&nbsp; &nbsp;on&nbsp; &nbsp;the&nbsp; &nbsp;maxim&nbsp; &nbsp;“interest&nbsp; &nbsp;reipublicae&nbsp; &nbsp;ut&nbsp; &nbsp;sit&nbsp; &nbsp;finis litium”, that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing time­limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.”</i></b></p><p><b>7.4 In the case of Basawaraj (supra), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each&nbsp; &nbsp;case.&nbsp; &nbsp;It&nbsp; &nbsp;is&nbsp; &nbsp;further&nbsp; &nbsp;observed&nbsp; &nbsp;that&nbsp; &nbsp;the&nbsp; &nbsp;expression “sufficient cause” cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature.</b></p><p><b>7.5 In the case of Pundlik Jalam Patil (supra), it is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and “do not slumber over their rights”.&nbsp; &nbsp;</b></p><p><b>8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the averments in the application for condonation of delay, we are of the opinion that as such no explanation much less a sufficient or a satisfactory explanation had been offered by respondent Nos.1 and 2 herein – appellants before the High Court&nbsp; &nbsp;for&nbsp; &nbsp;condonation&nbsp; &nbsp;of&nbsp; &nbsp;huge&nbsp; &nbsp;delay&nbsp; &nbsp;of&nbsp; &nbsp;1011&nbsp; &nbsp;days&nbsp; &nbsp;in preferring the Second Appeal. The High Court is not at all justified in exercising its discretion to condone such a huge delay.&nbsp; &nbsp;The&nbsp; &nbsp;High&nbsp; &nbsp;Court&nbsp; &nbsp;has&nbsp; &nbsp;not&nbsp; &nbsp;exercised&nbsp; &nbsp;the&nbsp; &nbsp;discretion judiciously. The reasoning given by the High Court while condoning&nbsp; &nbsp;huge&nbsp; &nbsp;delay&nbsp; &nbsp;of&nbsp; &nbsp;1011&nbsp; &nbsp;days&nbsp; &nbsp;is&nbsp; &nbsp;not&nbsp; &nbsp;germane. Therefore, the High Court has erred in condoning the huge delay of 1011 days in preferring the appeal by respondent Nos.1 and 2 herein – original defendants. Impugned order passed by the High Court is unsustainable both, on law as well as on facts.</b></p><p><b>9. In view of the above and for the reasons stated above, the present&nbsp; &nbsp;Appeal&nbsp; &nbsp;is&nbsp; &nbsp;Allowed.&nbsp; &nbsp;The&nbsp; &nbsp;impugned&nbsp; &nbsp;order&nbsp; &nbsp;dated 16.09.2021 passed by the High Court condoning the delay of 1011 days in preferring the Second Appeal by respondent Nos.1&nbsp; &nbsp;and&nbsp; &nbsp;2&nbsp; &nbsp;herein&nbsp; &nbsp;is&nbsp; &nbsp;hereby&nbsp; &nbsp;quashed&nbsp; &nbsp;and&nbsp; &nbsp;set&nbsp; &nbsp;aside. Consequently, Second Appeal No.331 of 2021 preferred by respondent&nbsp; &nbsp;Nos.1&nbsp; &nbsp;and&nbsp; &nbsp;2&nbsp; &nbsp;herein&nbsp; &nbsp;stands&nbsp; &nbsp;dismissed&nbsp; &nbsp;on&nbsp; &nbsp;the ground of delay. The present Appeal is accordingly Allowed. However, there shall be no order as to costs.&nbsp;</b></p><p><br></p>', '8a4d52cfc7cb261584ce93bb2f539931.jpg', '71df59f02d45549b5fb510ee917efbd3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-16', 1, '', '', '2021-12-17 03:13:04', '2021-12-17 03:13:04'),
(1238, 'EymjNCMrjaQug1CNpDsasz89n', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Compassionate appointment. Where new scheme dilutes existing benefits, new scheme is applicable. Where new scheme grants larger benefits, old scheme is applicable. Supreme Court. ', '<p><b>The Secretary to Govt, Dept of Education vs Bheemesh Alias Bheemappa </b></p><p><b>Civil Appeal 7752  of 2021 decided on 16 December 2021</b></p><p><b>Justice Hemant Gupta and Justice V. Ramasubramanian </b></p><p><b>Judgment Link:<a href=\"https://main.sci.gov.in/supremecourt/2020/18551/18551_2020_11_1504_32133_Judgement_16-Dec-2021.pdf\" target=\"_blank\"> https://main.sci.gov.in/supremecourt/2020/18551/18551_2020_11_1504_32133_Judgement_16-Dec-2021.pdf</a></b></p><p><b>18. If compassionate appointment is one of the conditions of service and  is made automatic upon  the death of an  employee in  harness without any kind of scrutiny whatsoever, the same would be treated as a vested right in law.   But it is not so. Appointment on compassionate grounds   is   not   automatic,   but   subject   to   strict   scrutiny   of   various parameters including the financial position of the family, the economic dependence of the family upon the deceased employee and the avocation of the other members of the family.  Therefore, no one can claim to have a vested right for appointment on compassionate grounds. This is why some of the decisions which we have tabulated above appear to have interpreted the applicability of revised Schemes differently, leading to conflict of opinion. Though there is a conflict as to whether the Scheme in force on the date of death of the employee would apply or the Scheme in force on the date of consideration of the application of appointment on compassionate grounds would apply, there is certainly no conflict about the underlying concern reflected in the above decisions.  Wherever the modified Schemes diluted the existing benefits, this Court applied those   benefits,   but   wherever   the   modified   Scheme   granted   larger benefits, the old Scheme was made applicable.  </b></p><p><b>19. The   important   aspect   about   the   conflict   of   opinion   is   that   it revolves around two dates, namely, (i) date of death of the employee; and (ii)  date of consideration of the application of the dependant. Out of these two dates, only one, namely, the date of death alone is a fixed factor   that   does   not   change.   The   next   date   namely   the   date   of consideration   of   the   claim,   is   something   that   depends   upon   many variables such as the date of filing of application, the date of attaining of majority of the claimant and the date on which the file is put up to the competent   authority.  There   is   no   principle   of   statutory interpretation which permits a decision on the applicability of a rule, to be based upon an indeterminate or variable factor. Let us take for instance a hypothetical case where 2 Government servants die in harness on January 01, 2020. Let us assume that the dependants of these   2   deceased   Government   servants   make   applications   for appointment on 2 different dates say 29.05.2020 and 02.06.2020 and a modified Scheme comes into force on June 01, 2020. If the date of consideration of the claim is taken to be the criteria for determining whether the modified Scheme applies or not, it will lead to two different results, one in respect of the person who made the application before June 1, 2020 and another in respect of the person who applied after June 01, 2020. In other words, if two employees die on the same date and the dependants of those employees apply on two different dates, one before the modified Scheme comes into force and another thereafter, they will come in for differential treatment if the date of application and the date of consideration of the same are taken to be the deciding factor. A   rule   of   interpretation   which   produces   different   results, depending   upon   what   the   individuals   do   or   do   not   do,   is inconceivable. This is why, the managements of a few banks, in the cases tabulated above, have introduced a rule in the modified scheme itself, which provides for all pending applications to be decided under the new/modified scheme. Therefore, we are of the considered view that the interpretation as to the applicability of a modified Scheme should depend only upon a determinate and fixed criteria such as the date of death and not an indeterminate and variable factor.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b> </b></p>', 'b79187da46fd9f66f93b9a0902109aef.jpg', 'ec6109ca614208324fbdbc8cb586cd43.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-16', 1, '', '', '2021-12-17 04:06:26', '2021-12-17 04:08:47'),
(1239, 'S6awN63GPv2fhZrr74a0JAaxk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Students were deprived of effective education during Covid pandemic. Promote them to next semester\'\'. Karnataka High Court directs Karnataka State Law University. ', '<p><span style=\"font-weight: bolder;\">Mahantesh and others vs The State of Karnataka and others. <br>Writ Petition 104008 of 2021 decided on 14 December 2021</span></p><p><b>Petitioners are students pursuing second and fourth semesters in three years LL.B course in the respondent– College. Petitioners aggrieved by the notification issued by the respondent – University for conducting examinations to the&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">students&nbsp; of&nbsp; second&nbsp; and fourth semesters for<span style=\"white-space:pre\">	</span>three year LL.B course have filed this writ petition.</b></p><p><b>4. The Bar Council of India constituted a committee so as to furnish opinion as to whether it is feasible to conduct the examinations for the law students across the country. The Bar Council of India on the opinion furnished by the Expert Committee issued a press release dated 10.6.2021 (Annexure-H) accepting the report of the Committee in which it was opined that respective Universities shall conduct examinations for intermediate and final year students as per their own dispensation, depending upon the availability of resources and impact of COVID – 19 in that region. It was further opined that the respective Universities are free to determine the mode of examination.</b></p><p><b>5. Pursuant to the advisory issued by the Bar Council of India, the respondent – University issued the impugned notification for conducting examinations to all the semesters of three year LL.B course as well as five year LL.B course.&nbsp;</b></p><p><b>9. Pursuant to the advisory issued by the Bar Council of India, the respondent – University took a decision to conduct examinations for all the semesters including final semester. The respondent – University having been given free hand to determine the mode of examinations was under an obligation to take into account all the relevant factors for conducting examinations in view of the ongoing COVID-19 pandemic. The respondent – University has produced the proceedings of the Expert Committee dated 8.9.2021 wherein the Expert Committee took an unanimous decision to conduct examinations through offline mode only.</b></p><p><b>11. An analysis of the proceedings indicates that the Expert Committee resolved to conduct examinations through offline mode only, by collecting data from the respective Law Colleges with regard to feasibility in conducting examinations through online mode. The data collected reflects that the majority of the students do not possess laptop or desktop computers and also do not have internet facilities. The Committee was required to consider not only the feasibility to conduct examinations, but also was required to determine the&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">other mode of examinations, that is, open book exam and assignment based evaluation/research paper. However, the Committee has not taken into account, whether effective education was imparted to the students including the petitioners which is probably the most important relevant factor. The Committee without taking into account the relevant factor has resolved to conduct examinations.</b></p><p><b>12. The duration of each semester is for a period of four months. Admittedly, the classes for respective semesters commenced from 3.5.2021 onwards through online mode and the University directed all the affiliated Law Colleges to conduct the offline classes from 26.7.2021 and the semester concluded by end of August 2021. The lockdown was announced in the State of Karnataka with effect from 26.4.2021 for a period of four weeks and the University directed the affiliated Law&nbsp; Colleges to commence online classes from 3.5.2021 which admittedly was during the lockdown.</b></p><p><b>13. The data collected by the University indicates that more than 50% of the students do not possess laptop/desktop computer and also do not have internet connection and the online classes is alleged to have been conducted from 3.5.2021 till 26.7.2021 ie. for a period of three months and duration of semester is admittedly four months. However, no data was collected by the University as to whether effective education was imparted through online and offline classes. In the absence of the same and also going by data collected by the University which indicate the majority of the students did not possess the laptop/desktop and also do not have access to internet facilities, it is implied that effective education was not imparted to the petitioners as well as majority of the students. The Petitioners in paras 3 to 5 of the memorandum of writ petition have specifically pleaded that the effective education was not imparted .</b></p><p><b>14. Having regard to the fact that the classes through online were alleged to have been conducted for a&nbsp; period of&nbsp; three months, it is implied that the petitioners did not have access to the library which is a storehouse of knowledge and the library helps the petitioners<span style=\"white-space:pre\">	</span>to perform better during examination by reading various books.</b></p><p><b>16. In the normal circumstances, the petitioners are under an obligation to attend the classes through offline mode so as to be educated and be prepared for appearing in the examinations. In the present scenario, the petitioners have not been imparted with the effective education so as to be prepared for writing the examinations. The petitioners who are not prepared for no fault of theirs cannot be compelled to appear in the examinations with fear in their mind that they would fail in the examinations.</b></p><p><b>17. The Bar Council of India having accepted the order passed by this court in WP No.14389/2020 directing the Respondent- University to promote the students based on their past performance cannot now contend that the degrees of the students who have been promoted will not be accepted and the same is untenable.</b></p><p><b>18. In view of the preceding analysis, I am of the considered view that effective education was not imparted to the petitioners and also majority of the students and the University by not taking into account this most important factor has taken a decision to conduct examinations which is prejudicial to the interest of the petitioners and they cannot suffer for no fault of them.</b></p><p><b>Respondent No.2 University is directed to promote the petitioners to the next semester in the light of the order passed by this Court in W.P.No.14389/2020 disposed of on 08.02.2021.</b></p>', 'ae907d6c72478dc54dd2e1f33a904ec3.jpg', '6bfda1f953c4bcf7ab08b45e96058f11.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-16', 1, '', '', '2021-12-17 04:44:42', '2021-12-17 04:44:42'),
(1240, 'VruHewjVJ6LAh7QqnRZr0XLZA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land Acquisition. Withdrawal of acquisition proceedings can be cancelled by the Government thus restoring acquisition proceedings. Supreme Court. ', '<p><b>U.P. Avas Evam Vikas Parishad vs Noor Mohammad and others.&nbsp;<br>Civil Appeal 8083 of 2011 decided on 16 December 2021<br>Justice Hemant Gupta and Justice&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">V.&nbsp;Ramasubramanian<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2010/37564/37564_2010_11_1502_32133_Judgement_16-Dec-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2010/37564/37564_2010_11_1502_32133_Judgement_16-Dec-2021.pdf&nbsp;</a></span></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. The main ground on which the High Court set aside the second Notification dated 15.09.2005 was that once a Notification is issued under Section 48(1) of the Land Acquisition Act, 1894, the land gets released from acquisition and that, therefore, the only way the State Government&nbsp; &nbsp;could&nbsp; &nbsp;retrieve&nbsp; &nbsp;the&nbsp; &nbsp;land&nbsp; &nbsp;is&nbsp; &nbsp;to&nbsp; &nbsp;initiate&nbsp; &nbsp;the&nbsp; &nbsp;process&nbsp; &nbsp;of acquisition afresh. This reasoning is based upon two premises, namely, (i)&nbsp; that&nbsp; &nbsp;while&nbsp; &nbsp;there&nbsp; &nbsp;is&nbsp; &nbsp;a&nbsp; &nbsp;provision&nbsp; &nbsp;under&nbsp; &nbsp;Section&nbsp; &nbsp;48(1)&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Land Acquisition Act for the withdrawal of the land from acquisition, there is no provision in the Act for cancellation of a Notification under Section 48(1); and (ii) that once a Notification under Section 48 (1) of the Land Acquisition Act is issued, the land gets vested in the original owner and that therefore, divesting cannot take place without following the process of acquisition as enunciated in the Statute.</span><br></b></p><p><b>10. But insofar as the first contention is concerned, Section 21 of the General Clauses Act, 1897 is a complete answer. It reads as follows:­</b></p><p><i><b>“21.&nbsp; Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye­laws.­ Where, by any Central Act or Regulations a power to issue notifications, orders, rules or bye­laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or byelaws so issued.”</b></i></p><p><b>11. Therefore, the power to issue Notification would include a power to rescind&nbsp; &nbsp;the&nbsp; &nbsp;Notification.&nbsp; &nbsp;This&nbsp; &nbsp;position&nbsp; &nbsp;was&nbsp; &nbsp;not&nbsp; &nbsp;contested&nbsp; &nbsp;by&nbsp; &nbsp;the respondents,&nbsp; &nbsp;when&nbsp; &nbsp;their&nbsp; &nbsp;attempts&nbsp; &nbsp;to&nbsp; &nbsp;have&nbsp; &nbsp;the&nbsp; &nbsp;land&nbsp; &nbsp;released&nbsp; &nbsp;from acquisition, proved unsuccessful on earlier occasions.&nbsp;</b></p><p><b>22. While a Notification for acquisition issued under Section 4(1) of the Land&nbsp; &nbsp;Acquisition&nbsp; &nbsp;Act&nbsp; &nbsp;seeks&nbsp; &nbsp;to&nbsp; &nbsp;take&nbsp; &nbsp;away&nbsp; &nbsp;an&nbsp; &nbsp;individual’s&nbsp; &nbsp;right&nbsp; &nbsp;to property, a Notification under Section 48(1) is actually the reverse or opposite.&nbsp; &nbsp;It&nbsp; &nbsp;confers&nbsp; benefit&nbsp; &nbsp;upon&nbsp; &nbsp;an&nbsp; &nbsp;individual&nbsp; and&nbsp; &nbsp;hence&nbsp; &nbsp;it&nbsp; &nbsp;is&nbsp; not supposed to be preceded by any enquiry. The essence of an order which is quasi­judicial in nature is that it is preceded by an opportunity of hearing to the party affected thereby. A notification under Section 48(1) does not warrant any notice or opportunity of hearing, to the original land owners. If at all any person will be aggrieved by the Notification under Section 48(1), it will be the beneficiary of the acquisition, which in this case is the Parishad, and not the land owners. Therefore, we can understand if the Parishad makes out a grievance that their rights were taken away by the notification under Section 48(1) especially after the land vested in them.</b></p><p><br></p>', '85b8342eb8641392d496399e8dfd65a3.JPG', '907bd2805a707b54452a050c744c5f4e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-16', 1, '', '', '2021-12-17 05:36:30', '2021-12-17 05:36:30'),
(1241, 'GHyLF31UrKjMO42AbeR4UpliR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Land Revenue Act. Deputy Commissioner cannot sit as Revenue Court and pass orders when there is no enquiry/revenue proceedings pending before him for adjudication. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">The Taluka Panchyath Chamarajnagar vs The State of Karnataka&nbsp;<br></span><b>Writ Appeal 343 of 2010 decided on 14 December 2021<br>Justice P.S. Dinesh Kumar and Justice P. Krishna Bhat</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The short question that arises for consideration before us in these appeals is whether the power under Section 25 of the Karnataka Land Revenue Act, 1964 (for short, the \'Act\') is available to be exercised by the Deputy Commissioner when there is no enquiry/revenue proceedings pending before him for adjudication and whether after an Order has been passed in a revision petition under Section 136(3) of the Act, can he exercise power under Section 25 of the Act for annulling such an Order?</b><b><br></b></p><p><b>8. The question, therefore, now is, whether in exercise of the power under Section 25 of the Act, learned Deputy Commissioner could have reviewed the earlier Order of his predecessor referred to hereinabove.</b></p><p><b>10. The conjoint reading of the above makes it abundantly clear that the power under Section 25 of the Act is available to be exercised only by the ‘Revenue Court’ and not by individual Revenue Officers. It is true that Revenue Courts are constituted by Revenue Officers not below the rank of a Tahsildar which means and includes the Deputy Commissioner as well. However it is also clear from the above that a Revenue Officer not below the rank of a Tahsildar can constitute a Revenue Court only under the following circumstances:</b></p><p><b>(i)<span style=\"white-space:pre\">	</span>The Revenue Officer in question not below the rank of a Tahsildar should be exercising power under the Act or any other law for the time being in force;</b></p><p><b>(ii)<span style=\"white-space:pre\">	</span>Such power as he is exercising must be for the purpose of inquiring into or to decide any question arising in any proceedings;</b></p><p><b>(iii)<span style=\"white-space:pre\">	</span>Exercising such power must be for the determination of any question between the State Government and any person or between parties to any proceedings.</b></p><p><b>11. It is only when all the above ingredients are satisfied can the Revenue Officer constitute himself as a ‘Revenue Court’. In other words, merely because a Revenue Officer holds an Office not inferior in rank to that of a Tahsildar, he cannot constitute himself as a Revenue Court. It is therefore axiomatic that under Section 25 of the Act, inherent powers in the purported exercise of which the impugned Order (Annexure-B) has been passed could not have been passed by the Deputy Commissioner as there was no proceeding pending before him for inquiry and therefore, he could not, in law, be a ‘Revenue Court’. Having passed the earlier Order dated 22.11.2006 vide Annexure-A, he had become functus officio in relation to the proceedings in RA 10/2006-07. By placing reliance on a</b></p><p><b>12. In that view of the matter, there is absolutely no error or illegality in the impugned Order passed by the Hon\'ble Single Judge and accordingly there is no merit in these appeals and they are liable to be dismissed. Hence&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">we pass the following:</b></p><p><b>ORDER</b></p><p><b>The Writ Appeal No.343/2010 along with connected case namely, Writ Appeal No.3902/2010 are devoid of merits and accordingly, both the appeals are dismissed.</b></p><p><b><br></b></p><p><br></p><p><br></p>', '65f6dd366aba86f4f1f567f21bde81f7.JPG', 'ce5f93d5712b90973156ecead04cc655.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-17', 1, '', '', '2021-12-18 01:01:25', '2021-12-18 01:01:25'),
(1242, 'xo61iVrrdrLeolJzofKqctHNJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Right of persons with mental disabilities against discrimination in the course of employment. Supreme Court analyses complex question of balancing competing interests. ', '<p><b>Ravinder Kumar Dhariwal & anr vs The Union of India & ors.<br>Civil Appeal 6924 of 2021 decided on 17 December 2021<br>Justice <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Dr Dhananjaya Y Chandrachud, Justice Surya Kant and Justice Vikram Nath</span></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">V Analysis</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p><b>89. On the basis of our discussion of the above-mentioned jurisdictions, the\r\nfollowing conclusions emerge:\r\n<br>(i) Mental health disorders are recognised as a disability as long as they fulfil\r\nthe defining criteria;\r\n<br>(ii) The duty of providing reasonable accommodation to persons with\r\ndisabilities is sacrosanct. All possible alternatives must be considered\r\nbefore ordering dismissal from service. However, there are accepted\r\ndefences to this principle. The well-recognised exception to this rule is\r\nthat the duty to accommodate must not cause undue hardship or impose\r\na disproportionate burden on the employer – the interpretation of these\r\nconcepts may vary in each jurisdiction. In the US, the duty to\r\naccommodate is also to be balanced with ensuring the safety of the\r\nworkplace (the direct risk defence) provided that the threat to safety is\r\nbased on an objective assessment and not stereotypes. In Canada, the minority concurring opinion in Stewart (supra) observed that\r\naccommodating a person with substance dependency would cause\r\nundue hardship to the employer in a safety-sensitive workplace. The\r\nCourt of Justice of EU also recognised workplace safety as a legitimate\r\noccupational requirement for imposing certain occupational standards.\r\nHowever, it ruled that the standard should be proportionate to the\r\nobjective of workplace safety that is sought to be achieved. In this\r\ncontext, it will be useful to refer to the minority opinion in Stewart (supra)\r\nwhich emphasizes that the duty to accommodate is individualized. The\r\nemployer must be sensitive to how the individual’s capabilities can be\r\naccommodated. The Committee on the Rights of Persons with Disabilities\r\nin General Comment Six expressly notes that the duty to accommodate is\r\nan “individualised reactive duty” and “requires the duty bearer to enter\r\ninto dialogue with the individual with a disability”. Thus, a blanket\r\napproach to disability-related conduct will not suffice to show that the\r\nemployer has discharged its individualized duty to accommodate. It must\r\nshow that it took the employee’s individual differences and capabilities\r\ninto account;<br>(iii) Mental health disorders pose a unique challenge in disability rights\r\nadjudication. Very often, persons are not aware of or are in denial of their\r\nmental disability. Even if they hold the awareness, to avoid stigma and\r\ndiscrimination, they tend to not disclose their mental illness before an\r\nincident of purported misconduct. Thus, they may fall foul of the\r\nrequirement to request a reasonable accommodation. In the US, for instance, the requirement to provide reasonable accommodation is\r\nprospective. In Canada, the majority in Stewart (supra) observed that\r\ndespite the substance dependency, the employee had the ability to make\r\na prior disclosure of the dependency to the employer and could have\r\navailed of the reasonable accommodation. However, the minority opinion,\r\nemphatically observed that self-reporting cannot be construed as\r\naccommodation for persons who are in denial of their disability. The\r\nCommittee on the Rights of Persons with Disabilities in General Comment\r\nSix notes that the duty to accommodate also arises in cases where the\r\nduty bearer “should have realized that the person in question had a\r\ndisability that might require accommodations to address barriers to\r\nexercising rights”; and (iv) An issue that remains contentious is the examination of misconduct\r\ncharges against persons with mental health disorders. There are two\r\nstrands of argument. One argument is that mental disability often\r\nmanifests as atypical behaviour that may fall within the ambit of\r\nmisconduct. If such conduct is causally connected to the disability, then\r\ndismissal on grounds of misconduct is discrimination based on disability.\r\nThis argument has been accepted by a few courts in the US. In the\r\nminority opinion in Stewart (supra), it was observed that making a\r\ndistinction between the disability and the disability-related conduct is akin\r\nto making a distinction between a protected ground and conduct that is\r\nintertwined with the protected ground. On the other hand, it is argued that\r\nwhile mental health disorders may diminish the control a person has over their actions, it does not necessitate that the persons have completely lost\r\ntheir ability to comply with acceptable standards of workplace conduct. In\r\nthe US, most courts have held that misconduct is not protected under\r\nADA. In Stewart (supra), the majority opinion of the Canadian Supreme\r\nCourt held that the employee with substance dependency retained some\r\ncontrol to comply with the policy of making prior disclosure of\r\ndependency. Thus, non-compliance with standards of workplace conduct\r\ncan rightfully lead to dismissals and would not constitute discrimination.\r\nSouth Africa adopts a middle ground in this debate. In Legal Aid South\r\nAfrica (supra), the court observes that a two-pronged enquiry is required.\r\nIt must first be considered based on the evidence whether the mental\r\nhealth disorder is so incapacitating that the person is not able to\r\nappreciate the wrongfulness of the conduct or is unable to conduct\r\nthemselves in accordance with the required standard. Alternatively, if the\r\nevidence suggests that the person can appreciate the wrongfulness of\r\ntheir conduct and act accordingly, then their culpability stands diminished\r\nbecause of the mental health disorder, and sanctions should be imposed\r\naccordingly. </b></p><p><b>\r\n\r\n97. The South African jurisprudence in assessing claims of misconduct\r\nrelating to disability presents a middle path where an enquiry is to be conducted\r\nto assess whether the mental disability is incapacitating, which would then nullify\r\nthe charge of misconduct. In the event, it is not incapacitating, the mental\r\ndisability would still serve as a mitigating factor in the imposition of sanctions.\r\nHowever, this approach also has a limitation where it focuses too much on the\r\nnature of impairment than the disadvantage. It has the possibility of making\r\ndisability rights adjudication more complex and less accessible since it would\r\nrequire reliance on medical experts to assess how debilitating the mental\r\ndisability is.111 This also makes the disability regime vulnerable to being relegated to a medical model of disability rather than a social model. Thus, in the\r\nIndian context, a person with a mental disability is entitled to the protection of the\r\nrights under the RPwD Act as long they meet the definitional criteria of what\r\nconstitutes a ‘person with a disability’ under Section 2(s).  <br></b></p><p><b>102. The present case involves a complex question of balancing competing\r\ninterests. Specifically, this entails the right of persons with mental disabilities\r\nagainst discrimination in the course of employment and the interest of the CRPF\r\nin ensuring a safe working environment and maintaining a combat force that can\r\nundertake security operations. While balancing the two we must also recognize the role assigned to the CRPF as a para-military force. Tarunabh Khaitan has\r\ncommented that rights are rarely of an absolute nature. Constitutions often\r\nprovide the possibility of limiting those rights through acceptable justifications.\r\nHe gives an example of Article 19(1) of the Constitution, where a justification\r\nclause has been in-built into the text of the Constitution. On the other hand, he\r\npoints out, while Article 14 is not subject to an express justification clause,\r\njudges have evolved the reasonable classification test to assess whether a\r\ndifferential treatment can be justified under Article 14. He argues that the\r\ndifference between the two models of justification is merely semantic.114 The\r\nproviso to sub-Section (1) of Section 20 of the RPwD Act provides a justification\r\nfor violating the right against discrimination in employment. It provides that the\r\nappropriate government, may, having regard to the type of work carried on in\r\nany establishment exempt such an establishment from the provisions of Section\r\n20. The key words here to note are “having regard to the type of work”. This\r\nindicates that the government’s right to exempt an establishment from the\r\nprovisions of Section 20 which deals with employment discrimination is not\r\nabsolute. In an appropriate case, a standard for reviewing the justification given\r\nby the government may have to be developed. </b></p><p><b> (a) A person with a disability is entitled to protection under the RPwD Act\r\nas long as the disability was one of the factors for the discriminatory\r\nact; and\r\n</b></p><p><b>(b) The mental disability of a person need not be the sole cause of the\r\nmisconduct that led to the initiation of the disciplinary proceeding. Any\r\nresidual control that persons with mental disabilities have over their\r\nconduct merely diminishes the extent to which the disability contributed\r\nto the conduct. The mental disability impairs the ability of persons to\r\ncomply with workplace standards in comparison to their able-bodied\r\ncounterparts. Such persons suffer a disproportionate disadvantage\r\ndue to the impairment and are more likely to be subjected to\r\ndisciplinary proceedings. Thus, the initiation of disciplinary proceedings\r\nagainst persons with mental disabilities is a facet of indirect\r\ndiscrimination. <br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'd0c0dc0540a3743a15ab2a5268e74b41.JPG', '9fd21201bbee30d9d4acf7f25fc09c11.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-17', 1, '', '', '2021-12-18 02:33:27', '2021-12-18 02:45:20');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1243, 'ZTO6l8mzYcu0ZDR632O9OAWcx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Consumer Protection Act. Sameness of interest and joining of all aggrieved consumers is absolutely necessary to seek permission to file consumer complaint in a representative capacity. Supreme Court. ', '<p><b>Brigade Enterprises Limited vs Anil Kumar Virmani and others&nbsp;</b></p><p><b>Civil Appeal 1779 of 2021 decided on 17 December 2021</b></p><p><b>Justice Hemant Gupta and Justice V. Ramasubramanian</b></p><p><b>1. Challenging&nbsp; &nbsp;an&nbsp; &nbsp;order&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;National&nbsp; &nbsp;Consumer&nbsp; &nbsp;Disputes Redressal&nbsp; &nbsp;Commission,&nbsp; &nbsp;passed&nbsp; &nbsp;under&nbsp; &nbsp;Section&nbsp; &nbsp;35(1)(c)&nbsp; &nbsp;of&nbsp; &nbsp;the Consumer&nbsp; &nbsp;Protection&nbsp; &nbsp;Act,&nbsp; &nbsp;2019,&nbsp; &nbsp;allowing&nbsp; &nbsp;91&nbsp; &nbsp;purchasers&nbsp; &nbsp;of&nbsp; &nbsp;51 apartments in the residential complex developed by them, to file a consumer complaint in a representative capacity, on behalf of and for the benefit of more than about 1000 purchasers, the builder has come up with the above appeal.</b></p><p><b>4. Though the builder who is the appellant herein objected to the application under Section 35(1)(c), the National Commission allowed the application by relying upon the decision of this Court in the Chairman, Tamil&nbsp; &nbsp;Nadu&nbsp; &nbsp;Housing&nbsp; &nbsp;Board,&nbsp; &nbsp;Madras&nbsp; vs.&nbsp; T.N. Ganapathy (1990) 1 SCC 608&nbsp; and&nbsp; &nbsp;the&nbsp; &nbsp;decision&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;National&nbsp; &nbsp;Commission&nbsp; &nbsp;in Ambrish&nbsp; &nbsp;Kumar&nbsp; &nbsp;Shukla&nbsp; &nbsp;vs.&nbsp; &nbsp;Ferrous&nbsp; &nbsp;Infrastructure&nbsp; &nbsp;Pvt.&nbsp; &nbsp;Ltd. Aggrieved by the said Order, the builder has come up with the above appeal.</b></p><p><b>14. Section 35(1)(c) enables one or more consumers, where there are&nbsp; &nbsp;numerous&nbsp; &nbsp;consumers&nbsp; &nbsp;having&nbsp; &nbsp;the&nbsp; &nbsp;same&nbsp; &nbsp;interest,&nbsp; &nbsp;with&nbsp; &nbsp;the permission of the District Commission, to file a complaint, on behalf of or for the benefit of all consumers so interested. It is needless to point out that the sine qua non for invoking Section 35(1)(c) is that all consumers on whose behalf or for whose benefit the provision is invoked, should have the same interest. Interestingly, Section 35(1) (c) uses the disjunction “or” in between two sets of words, namely, (i)&nbsp; “on behalf of”; and&nbsp; (ii)&nbsp; “for the benefit of”.&nbsp;</b></p><p><b>15. Therefore, a complaint filed under Section 35(1)(c) could either be “on behalf of” or “for the benefit of” all consumers having the same interest.</b></p><p><b>16. Section 38(11) of the Consumer Protection Act, 2019 makes the provisions of Order I Rule 8 of the First Schedule to the Code of Civil Procedure, 1908 applicable to cases where the complainant is a&nbsp; &nbsp;consumer&nbsp; &nbsp;referred&nbsp; &nbsp;to&nbsp; &nbsp;in&nbsp; &nbsp;Section&nbsp; &nbsp;2(5)(v),&nbsp; &nbsp;which&nbsp; &nbsp;defines&nbsp; &nbsp;a ‘complainant’ to&nbsp; mean one or more consumers, where there are numerous consumers having the same interest.</b></p><p><b>17. Order I Rule 8, CPC, unlike Section 35(1)(c) operates both ways and contains provisions for a two­way traffic. It not only permits plaintiffs to sue in a representative capacity but also permits people to be sued and to be defended in an action, in a representative capacity.&nbsp;</b></p><p><b>18. In&nbsp; &nbsp;simple&nbsp; &nbsp;terms,&nbsp; &nbsp;the&nbsp; &nbsp;salient&nbsp; &nbsp;features&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;stipulations contained in Order I Rule 8 CPC can be summed up as follows:</b></p><p><b>(i) where&nbsp; &nbsp;there&nbsp; &nbsp;are&nbsp; &nbsp;numerous&nbsp; &nbsp;persons&nbsp; &nbsp;having&nbsp; &nbsp;the&nbsp; &nbsp;same interest in one suit, one or more of such persons may, with the permission of the Court, sue on behalf of or for the benefit of all persons so interested;&nbsp;</b></p><p><b>(ii) where&nbsp; &nbsp;there&nbsp; &nbsp;are&nbsp; &nbsp;numerous&nbsp; &nbsp;persons&nbsp; &nbsp;having&nbsp; &nbsp;the&nbsp; &nbsp;same interest in one suit, one or more of such persons may be sued or one or more such persons may defend such suit, on behalf of or for the benefit of all persons so interested;&nbsp;</b></p><p><b>(iii) the Court itself may, without the plaintiffs or defendants seeking any permission under Order I Rule 8(1)(a), direct that one or more such persons may sue or be sued or may defend the suit on behalf of and for the benefit of all persons interested;&nbsp;</b></p><p><b>(iv) notice&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;institution&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;suit&nbsp; &nbsp;to&nbsp; &nbsp;all&nbsp; &nbsp;persons&nbsp; &nbsp;so interested&nbsp; &nbsp;either&nbsp; &nbsp;by&nbsp; &nbsp;personal&nbsp; &nbsp;service&nbsp; &nbsp;or&nbsp; &nbsp;by&nbsp; &nbsp;public advertisement should be ordered by the Court in both categories of cases, namely, where permission is given by the&nbsp; &nbsp;Court&nbsp; &nbsp;on&nbsp; &nbsp;the&nbsp; &nbsp;application&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;individuals&nbsp; &nbsp;or direction is issued by the Court itself;</b></p><p><b>(v)&nbsp; &nbsp;any person on whose behalf or for whose benefit the suit is instituted or defended may seek to be made a party to the suit;&nbsp;</b></p><p><b>(vi)&nbsp; abandonment&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;whole&nbsp; &nbsp;or&nbsp; &nbsp;part&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;claim, withdrawal of the suit or the recording of any agreement, compromise or satisfaction shall not be allowed by the Court unless notice to all persons interested in the matter is&nbsp; &nbsp;issued&nbsp; &nbsp;either&nbsp; &nbsp;by&nbsp; &nbsp;personal&nbsp; &nbsp;service&nbsp; &nbsp;or&nbsp; &nbsp;by&nbsp; &nbsp;public advertisement.</b></p><p><b>(vii) the Court may at any time substitute the person suing or defending in a representative capacity, with any other person, if the former was&nbsp; not prosecuting the suit or defence with due diligence.&nbsp;&nbsp;</b></p><p><b>(viii) the decree passed in the suit covered by this Rule will be binding on all persons.</b></p><p><b>19. The Explanation under Order I Rule 8 is of significance.&nbsp; &nbsp;It distinguishes persons having the same interest in one suit from persons having the same cause of action. To establish sameness of interest, it is not necessary to establish sameness of the cause of action</b></p><p><b>21. Since&nbsp; &nbsp;“sameness&nbsp; &nbsp;of&nbsp; &nbsp;interest”&nbsp; &nbsp;is&nbsp; &nbsp;the&nbsp; &nbsp;pre­requisite&nbsp; &nbsp;for&nbsp; &nbsp;an application under Order I Rule 8, CPC read with Section 35(1)(c) of the&nbsp; &nbsp;Consumer&nbsp; &nbsp;Protection&nbsp; &nbsp;Act,&nbsp; &nbsp;2019,&nbsp; &nbsp;it&nbsp; &nbsp;was&nbsp; &nbsp;necessary&nbsp; &nbsp;for&nbsp; &nbsp;the respondents&nbsp; &nbsp;to&nbsp; &nbsp;include&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;consumer&nbsp; &nbsp;complaint,&nbsp; &nbsp;sufficient averments&nbsp; &nbsp;that&nbsp; &nbsp;would&nbsp; &nbsp;show&nbsp; &nbsp;sameness&nbsp; &nbsp;of&nbsp; &nbsp;interest.</b></p><p><b>30. That&nbsp; &nbsp;takes&nbsp; &nbsp;us&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;next&nbsp; &nbsp;question&nbsp; &nbsp;as&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;fate&nbsp; &nbsp;of&nbsp; &nbsp;the complaint filed by the respondents. It is sought to be contended that once&nbsp; &nbsp;the&nbsp; &nbsp;application&nbsp; &nbsp;under&nbsp; &nbsp;Section&nbsp; &nbsp;35(1)(c)&nbsp; &nbsp;is&nbsp; &nbsp;held&nbsp; &nbsp;liable&nbsp; &nbsp;to&nbsp; &nbsp;be rejected, the complaint should also go, as more than one consumer cannot institute a complaint unless they come within the definition of&nbsp; &nbsp;the&nbsp; &nbsp;word&nbsp; &nbsp;“complainant”&nbsp; &nbsp;and&nbsp; &nbsp;also&nbsp; &nbsp;satisfy&nbsp; &nbsp;the&nbsp; &nbsp;requirements&nbsp; &nbsp;of Section 38(11) read with Order I Rule 8 CPC.</b></p><p><b>38. Therefore, the proper way of interpreting Section 35(1) read with section 2(5), would be to say that a complaint may be filed: (i) by a single consumer;&nbsp; (ii)&nbsp; by a recognised consumer Association; (iii) by one or more consumers jointly, seeking the redressal of their own grievances without representing other consumers who may or may not have the same interest; (iv) by one or more consumers on behalf of or for the benefit of numerous consumers;&nbsp; and&nbsp; (v)&nbsp; the Central Government, Central Authority or State Authority.&nbsp;</b></p><p><b>41. In view of the above, the appeal is allowed, the impugned order of&nbsp; &nbsp;the&nbsp; &nbsp;National&nbsp; &nbsp;Commission&nbsp; &nbsp;is&nbsp; &nbsp;modified&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;effect&nbsp; &nbsp;that&nbsp; &nbsp;the complaint&nbsp; &nbsp;filed&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;respondents&nbsp; &nbsp;shall&nbsp; &nbsp;be&nbsp; &nbsp;treated&nbsp; &nbsp;as&nbsp; &nbsp;a&nbsp; &nbsp;joint complaint filed on behalf of only the respondents herein and not as a complaint filed in a representative capacity on behalf of or for the benefit of all the owners of all the 1134 flats.&nbsp;</b></p>', '70071795039accd65425bbbf1d4f23ed.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-17', 1, '', '', '2021-12-18 03:20:10', '2021-12-18 03:20:10'),
(1244, '82aaeRsc721VtVuC2EwWjsHs7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Rejection of plaint. Arguments not advanced before the trial court or documents not produced before the trial court can NOT be raised or produced before a court exercising revisional jurisdiction under Section 115 of the CPC. Karnataka High Court. ', '<p><b>M/S Symphonymax vs M/S ICAD Engineering Pvt. Ltd and another</b></p><p><b>Civil Revision Petition 360 of 2016 decided on 11 August 2021</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Could arguments not advanced before the trial court or documents not produced before the trial court, be raised or produced before a court exercising revisional jurisdiction under Section 115 of the CPC?</b><br></p><p><b>14.2. The decision relied upon by Sri.D.R.Ravi Shankar, learned counsel for the petitioner in the case of PERCEPT D’MARK (INDIA) (P) LTD., (supra) is as regards post-contractual covenants or restrictions as is clear from Paragraphs 56 and 63, which have been extracted hereinabove. The said decision is for the first time relied upon by the learned counsel for the petitioner before this Court. The said decision was not placed for perusal before the trial Court. The contention of Sri.D.R.Ravi Shankar, learned counsel for the petitioner is that the trial Court ought to have known about the said decision and applied the same even if the applicant had not relied upon such a citation. Since we are in adversarial system, it is for the parties to place the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">necessary judgment/s and/or citation/s that they rely upon. If the citations are not placed before the trial court, the trial court cannot conduct a roving inquiry to ascertain what are the particular decisions applicable to a particular case or not.</b></p><p><b>14.3. It is a different matter to contend that the trial Court has not applied a proper law but it is a different contention that the trial Court should have applied a particular judgment. The decision having not been relied upon before the trial Court, the trial Court has rightly not referred to the said judgment and no fault could be found with the trial Court in that respect.</b></p><p><b>14.6. Admittedly, these documents had not been produced before the trial Court. The production and reliance on the said documents is also objected to by Sri.D.R.Ravishankar, learned counsel for the petitioner.</b></p><p><b>14.7. It is in view of the citation which was not relied upon before the trial Court being relied upon before this Court as also the documents which are not placed before the trial Court having been produced before this Court that&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">above point<span style=\"white-space:pre\">	</span>for determination has been formulated.</b></p><p><b>14.9. This Court would have power to make such order as it may think fit in the event of the trial Court having exercised jurisdiction not vested in it by law or ought to have failed to exercise jurisdiction so vested, ought to have acted in the exercise of its jurisdiction illegally or with material irregularity.</b></p><p><b>14.10. The application which was before the trial Court was one under Order VII Rule 11 of CPC which is to be considered on the basis of the averments made in the plaint which would also include the documents produced along with plaint. If that be the case, the Plaintiff cannot seek to produce fresh documents before this Court, which was not&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">produced before the trial Court to try and make out a case for dismissal of the application under Order VII Rule 11 of CPC and/or to fill up any lacuna.</b></p><p><b>14.11. This Court would only consider the order passed on the basis of the material, which was available before the trial Court while passing such an order. The jurisdiction exercised by this Court is one of revision under Section 115 of CPC and not that of appeal.<span style=\"white-space:pre\">	</span>Revisional jurisdiction as aforestated can only be exercised in respect of the jurisdiction exercised or not exercised by the trial Court. The Court to exercise or not to exercise jurisdiction on the basis of the matter or documents before it. Neither of the parties can approach this Court and place on record new facts, documents or citations and&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contend that the trial Court has not exercised jurisdiction by not relying upon documents, facts, pleadings or decisions which were in fact not placed before the trial Court.</b></p><p><b>14.12. In view thereof, I answer Point No.4 by holding that the arguments not advanced before the trial Court or documents not produced before the trial Court cannot be raised or produced before a Court exercising revisional jurisdiction under Section 115 of CPC.</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '468aa22db6058d1dc92a9e1898ff729c.jpeg', 'fa924599a0ebeb856a0d42b6bf0ed250.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-18', 1, '', '', '2021-12-19 02:18:36', '2021-12-19 02:18:36'),
(1245, 'UflHHnIjeEZ2jSSlqnjmN2xHe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Court can NOT at the time of passing of the judgment, in the judgment, recast the issues already framed and/or frame additional issues and answer those issues. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">B.Aravinda Bhat by Lrs vs B. Narasimha Bhat <br></span><b>Miscellaneous First Appeal 34 of 2016 decided on 19 August 2021</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2. The substantial question of law that would arise for consideration of this Court is </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>Whether a Court can at the time of passing of the judgment, in the judgment, recast the issues already framed and/or frame additional issues and answer those issues?</i></b><b><br></b></p><p><b>8. In view of the above opportunity not having granted to the plaintiff, the suit for specific performance is dismissed, it is this fact, which has been taken into consideration by the first Appellate Court that additional issues have been framed and one of the issues has been recast without notice to the parties and therefore, the matter was remanded to the trial Court for evidence on those issues with a direction  to the trial Court to dispose of the same as expeditiously as possible.</b></p><p><b>10. There may be several pleadings and several contentions taken up in the pleadings but it is finally the issues which are framed which will encapsulate the suit and it is those issues, which are required to be adverted to and answered in order to arrive at a finding in the suit.</b></p><p><b>11. Therefore, I answer the substantial question of law by holding that there could not be recasting of  issues and/or framing of a fresh issue during the time of rendering the judgment but ought to have been made before the judgment and opportunity be provided to all the parties.</b></p><p><b>12. If at all the Court was of the opinion that new issues have to be framed, the Court ought to have framed the issues and provided an opportunity to the  parties to decide whether they want to  lead evidence on those issues or not and further opportunity was to be provided to address arguments on those newly framed issues.</b></p><p><b>13. If the parties chose not to lead any evidence or arguments, the Court could proceed to pass judgment. However, if the parties were to submit that they wanted to lead evidence and address arguments, then they should be permitted to do so.</b></p><p><b>14. I answer the substantial question of law by holding that a Court cannot at the time of the passing of the judgment, in the judgment, recast the  issues already framed and/or frame additional issues.</b></p><p><b><br></b></p><p><br></p>', '9a7068f1c059279487cf9d7df1add33e.jpeg', '5f587ec8e8efa98bf66f0903cc90f549.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-18', 1, '', '', '2021-12-19 02:49:02', '2021-12-19 02:49:19'),
(1246, 'htOFX8GmA6d4FfJIna0mmYzbw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A representative suit cannot be permitted to the withdrawn or compromised without complying with mandatory procedure under Order 1 Rule 8 (4) of the Civil Procedure Code. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Syed Abdul Bari and others vs Syed Imran and others&nbsp;<br></span><b>Writ Petition 200003 of 2021 decided on 9 December 2021</b><br><b>Justice M.G.S.Kamal&nbsp;</b><br></p><p><b>The present civil revision petition under Section 115 of the Code of Civil Procedure (henceforth referred as \'CPC\') is filed by the petitioners/original plaintiffs No.5, 7 and 9, aggrieved by the order dated 09.11.2020 passed by the learned Principal Civil Judge and JMFC at Humnabad (for short the \'Trial Court\') in O.S.No.17/2019, by which the Trial court dismissed the suit filed under Order I Rule 8 of CPC as withdrawn upon a memo filed by the respondent Nos.1 and 2/original plaintiffs No.6 and 10.</b></p><p><b>11. A perusal of Section 115 of the CPC makes it clear that in order to invoke the revisional powers of the High Court, the following conditions must exists:-</b></p><p><b>I. There must be a case decided.</b></p><p><b>II. The Court deciding the case must be subordinate to the High Court.</b></p><p><b>III. No appeal should lie to the High Court against the said decision.</b></p><p><b>IV. In deciding the case the subordinate court must appear to have:-</b></p><p><b>a) Exercised a jurisdiction not vested in it by law; or</b></p><p><b>b) failed to exercise a jurisdiction so vested, or</b></p><p><b>c) acted in the exercise of its jurisdiction illegally or with material irregularity.</b></p><p><b>12. Therefore sub-Section (1) of Section 115 refers only to a case decided by any Subordinate Court in which no appeals lies thereto. Proviso to sub-Section (1) refers to \"any order made\" or \"any order deciding an issue in the course of the suit or other proceedings which has an effect of finally disposing of the suit had it been made in favour of parties seeking revision. This invariably refers to interlocutory orders.</b></p><p><b>13 Explanation provided to Section 115 is significant. Wherein it is made clear that the expression \"any case which has been decided\" includes \"any order made, or any order deciding an issue, in the course of a suit or other proceedings.\"</b></p><p><b>14 Thus, from plain reading of the provisions of Section 115 of CPC it is clear that sub-Section (1) deals with \"any case which has been decided\" and \"from which no appeal lies\" and proviso to Sub Section (1) specifically deals with the interlocutory orders which if he had been passed in favour of parties seeking revision would have resulted in the disposal of the suit or other proceedings</b></p><p><b>15 The Apex Court in the case Shiva&nbsp; Shakti&nbsp; (supra) dealing with maintainability of revision petition after the amendment to Section 115 under Act 46 of 1999 with effect from 01.07.2002 has held that a question needs to be asked if whether the order in favour of the party applying for revision in the Courts below would have given finality to the suit of proceedings and if the answer is an affirmative then the application was maintainable and otherwise not. The Apex Court while comparing with the provision of Section 115 of CPC prior to and subsequent to the amendment, at Para No.12 had taken note of the recommendation of law commission of India&nbsp;</b></p><p><b>20. It is thus for these reasons, the proviso to Sub Section (1) of Section 115 of CPC qualifies that for the purpose of invoking the revisional jurisdictional of the High Court under Section 115 of CPC, an interlocutory should pass the test of provided under the proviso. However, no such test seems to have been prescribed in respect of order which amounts to a \"case decided\" as contemplated under Sub Section (1) of Section 115 of CPC.</b></p><p><b>21. Thus, even after the amendment to Section 115 of CPC the original position with regard to the power of the High Court calling for records of any case which has been decided by any Court, Subordinate to the High Court from which no appeal lies has remain unaltered. The amendment has only qualified the revisional power of the High Court with regard to the interlocutory orders, as noted hereinabove.</b></p><p><b>24. The aforesaid order dismissing the suit passed on the memo for dismissal is neither a decree nor an order from which an appeal is provided either under Section 96 or under Section 104 read with Order 43 of CPC. The said order would fall in the category of \"case decided\" within the ambit of Sub section (1) of Section 115 of CPC. Hence, the present Revision Petition is maintainable. The first point raised in this petition is answered accordingly.</b></p><p><b>25. Adverting to the second point raised hereinabove, the order under challenge passed dismissing the suit as not-pressed upon a memo dated 09.11.2020, is palpably illegal and suffers from material irregularity. The manner in which the Trial Court has accepted the memo filed by only two out of ten plaintiffs and acting thereupon dismissed the suit even in the absence of the person filing the said memo, without complying with Sub Rule (4) of Rule&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8 of Order 1 of CPC is nothing but illegal exercise of jurisdiction not being in compliance with the mandatory requirement of law.&nbsp;</b></p><p><b>26. The suit under Order 1 Rule 8 of CPC is in the nature of a representative suit. It is settled law that the object of Rule 8 of Order 1 of CPC is to facilitate the decision of question in which large number of persons are interested without recourse ordinary procedure. Order I Rule 8 provides that when there are numerous persons having the same interest in one suit, one or more or such persons may with the permission of the Court sue on behalf or for the benefit all persons so interested. An application submitted under Rule 8 of Order 1 of CPC cannot be granted straightway but a notice of such application is to be&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">published by the Court in the daily newspaper having circulation in the said locality at the expense of the plaintiff. The people interested in the suit or opposing the suit may come and join the proceedings.</b></p><p><b>27. Sub-Rule (4) of Rule 8 of Order 1 CPC mandates that no part of the claim in any such suit be abandoned under sub-Rule (1), and no such suit shall be withdrawn under Sub-Rule (3) of Rule (1) of Order 23 of CPC and no agreement, compromise or satisfaction shall be recorded in any suit under Rule 3 of that order unless the Court has given at the plaintiffs\' expenses, notice to all persons interested in the manner specified in sub-Rule (2).</b></p><p><b>28. Sub-Rule (5) of Rule 8 casts duty upon the Court that where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit.</b></p><p><b>29. Sub-Rule (6) of Rule 8 of CPC provides that the decree passed in a suit under this Rule shall be binding on all the persons on whose behalf or for whose benefit, the suit is instituted or defended as the case may be.</b></p><p><b>30. Thus, in view of the very nature of proceeding which is representative in character, a duty is cast on the Court to see that interest of those on whose behalf suit is permitted to be instituted is safeguarded. It is in this regard condition precedent in the nature of Court issuing a notice to all persons at the expenses of the plaintiff so interested in the manner specified in Sub-Rule (2) of Rule 8 of Order I of CPC is imposed before any such suit is abandoned and before recording satisfaction on any agreement or compromise.</b></p><p><b>31.Thus, from the above order it is clear that there has been no compliance of the mandatory requirement of issuing notice to all persons interested in the manner provided under sub-Rule (4) of Rule 8 of Order 1 of CPC.</b></p><p><b>32. As regards the alternate submission made by the learned counsel for the respondent referring to the judgment of Lahore High Court in the case of Abdulla and Another (Supra) and judgment of Allahabad High Court in the case of Biram Prakash Chela (Supra) to the effect that&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">once permission to sue is given to certain representatives to litigate on behalf of general public, then that right should carry with it a right to compromise, is completely on a different footing. It may be that once the permission is given to certain representatives, the said right would carry with it a right to compromise, however, such right can be invoked and accepted by the Courts only in compliance with mandatory requirement of Sub Rule (4) of Rule 8 of Order 1 CPC. Therefore, the reliance placed on the aforesaid judgments by the learned counsel for the respondent cannot apply to the present facts and circumstances.</b></p><p><b>The suit in O.S.No.17/2019 is restored&nbsp; to the file of Principal Civil Judge and JMFC at Humnabad.</b></p>', '9dc9d109ea2747c9fc4d1552d590a877.JPG', '0cf20caa850a598fc4da4b8e5dcee270.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-20', 1, '', '', '2021-12-21 02:49:45', '2021-12-21 02:49:45'),
(1247, 'igYtE6vtNdArKAS7YZqA01fQJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Dismissal of representative suit as withdrawn amounts to \'\'case decided\'\'. Revision under Section 115 Civil Procedure Code is maintainable against such order. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Syed Abdul Bari and others vs Syed Imran and others <br></span><b>Civil Revision Petition 200003 of 2021 decided on 9 December 2021</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The present civil revision petition under Section 115 of the Code of Civil Procedure (henceforth referred as \'CPC\') is filed by the petitioners/original plaintiffs No.5, 7 and 9, aggrieved by the order dated 09.11.2020 passed by the learned Principal Civil Judge and JMFC at Humnabad (for short the \'Trial Court\') in O.S.No.17/2019, by which the Trial court dismissed the suit filed under Order I Rule 8 of CPC as withdrawn upon a memo filed by the respondent Nos.1 and 2/original plaintiffs No.6 and 10.</b><b><br></b></p><p><b>11.<span style=\"white-space:pre\">	</span>A perusal of Section 115 of the CPC makes it clear that in order to invoke the revisional powers of the High Court, the following conditions must exists:-</b></p><p><b>I.<span style=\"white-space:pre\">	</span>There must be a case decided.</b></p><p><b>II.<span style=\"white-space:pre\">	</span>The Court deciding the case must be subordinate to the High Court.</b></p><p><b>III.<span style=\"white-space:pre\">	</span>No appeal should lie to the High Court against the said decision.</b></p><p><b>IV.<span style=\"white-space:pre\">	</span>In deciding the case the subordinate court must appear to have:-</b></p><p><b>a) Exercised a jurisdiction not vested in it by law; or</b></p><p><b>b) failed to exercise a jurisdiction so vested, or</b></p><p><b>c) acted in the exercise of its jurisdiction illegally or with material irregularity.</b></p><p><b>12. Therefore sub-Section (1) of Section 115 refers only to a case decided by any Subordinate Court in which no appeals lies thereto. Proviso to sub-Section (1) refers to \"any order made\" or \"any order deciding an issue in the course of the suit or other proceedings which has an effect of finally disposing of the suit had it been made in favour of parties seeking revision. This invariably refers to interlocutory orders.</b></p><p><b>13. Explanation provided to Section 115 is significant. Wherein it is made clear that the expression \"any case which has been decided\" includes \"any order made, or any order deciding an issue, in the course of a suit or other proceedings.\"</b></p><p><b>14. Thus, from plain reading of the provisions of Section 115 of CPC it is clear that sub-Section (1) deals with \"any case which has been decided\" and \"from which no appeal lies\" and proviso to Sub Section (1) specifically deals with the interlocutory orders which if he had been passed in favour of parties seeking revision would have resulted in the disposal of the suit or other proceedings</b></p><p><b>15. The Apex Court in the case Shiva  Shakti  (supra) dealing with maintainability of revision petition after the amendment to Section 115 under Act 46 of 1999 with effect from 01.07.2002 has held that a question needs to be asked if whether the order in favour of the party applying for revision in the Courts below would have given finality to the suit of proceedings and if the answer is an affirmative then the application was maintainable and otherwise not. The Apex Court while comparing with the provision of Section 115 of CPC prior to and subsequent to the amendment, at Para No.12 had taken note of the recommendation of law commission of India </b></p><p><b>20. It is thus for these reasons, the proviso to Sub Section (1) of Section 115 of CPC qualifies that for the purpose of invoking the revisional jurisdictional of the High Court under Section 115 of CPC, an interlocutory should pass the test of provided under the proviso. However, no such test seems to have been prescribed in respect of order which amounts to a \"case decided\" as contemplated under Sub Section (1) of Section 115 of CPC.</b></p><p><b>21. Thus, even after the amendment to Section 115 of CPC the original position with regard to the power of the High Court calling for records of any case which has been decided by any Court, Subordinate to the High Court from which no appeal lies has remain unaltered. The amendment has only qualified the revisional power of the High Court with regard to the interlocutory orders, as noted hereinabove.</b></p><p><b>24. The aforesaid order dismissing the suit passed on the memo for dismissal is neither a decree nor an order from which an appeal is provided either under Section 96 or under Section 104 read with Order 43 of CPC. The said order would fall in the category of \"case decided\" within the ambit of Sub section (1) of Section 115 of CPC. Hence, the present Revision Petition is maintainable. The first point raised in this petition is answered accordingly.</b></p><p><b>25. Adverting to the second point raised hereinabove, the order under challenge passed dismissing the suit as not-pressed upon a memo dated 09.11.2020, is palpably illegal and suffers from material irregularity. The manner in which the Trial Court has accepted the memo filed by only two out of ten plaintiffs and acting thereupon dismissed the suit even in the absence of the person filing the said memo, without complying with Sub Rule (4) of Rule </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8 of Order 1 of CPC is nothing but illegal exercise of jurisdiction not being in compliance with the mandatory requirement of law. </b></p><p><b>26. The suit under Order 1 Rule 8 of CPC is in the nature of a representative suit. It is settled law that the object of Rule 8 of Order 1 of CPC is to facilitate the decision of question in which large number of persons are interested without recourse ordinary procedure. Order I Rule 8 provides that when there are numerous persons having the same interest in one suit, one or more or such persons may with the permission of the Court sue on behalf or for the benefit all persons so interested. An application submitted under Rule 8 of Order 1 of CPC cannot be granted straightway but a notice of such application is to be </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">published by the Court in the daily newspaper having circulation in the said locality at the expense of the plaintiff. The people interested in the suit or opposing the suit may come and join the proceedings.</b></p><p><b>27. Sub-Rule (4) of Rule 8 of Order 1 CPC mandates that no part of the claim in any such suit be abandoned under sub-Rule (1), and no such suit shall be withdrawn under Sub-Rule (3) of Rule (1) of Order 23 of CPC and no agreement, compromise or satisfaction shall be recorded in any suit under Rule 3 of that order unless the Court has given at the plaintiffs\' expenses, notice to all persons interested in the manner specified in sub-Rule (2).</b></p><p><b>28. Sub-Rule (5) of Rule 8 casts duty upon the Court that where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit.</b></p><p><b>29. Sub-Rule (6) of Rule 8 of CPC provides that the decree passed in a suit under this Rule shall be binding on all the persons on whose behalf or for whose benefit, the suit is instituted or defended as the case may be.</b></p><p><b>30.Thus, in view of the very nature of proceeding which is representative in character, a duty is cast on the Court to see that interest of those on whose behalf suit is permitted to be instituted is safeguarded. It is in this regard condition precedent in the nature of Court issuing a notice to all persons at the expenses of the plaintiff so interested in the manner specified in Sub-Rule (2) of Rule 8 of Order I of CPC is imposed before any such suit is abandoned and before recording satisfaction on any agreement or compromise.</b></p><p><b>31. Thus, from the above order it is clear that there has been no compliance of the mandatory requirement of issuing notice to all persons interested in the manner provided under sub-Rule (4) of Rule 8 of Order 1 of CPC.</b></p><p><b>32. As regards the alternate submission made by the learned counsel for the respondent referring to the judgment of Lahore High Court in the case of Abdulla and Another (Supra) and judgment of Allahabad High Court in the case of Biram Prakash Chela (Supra) to the effect that  </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">once permission to sue is given to certain representatives to litigate on behalf of general public, then that right should carry with it a right to compromise, is completely on a different footing. It may be that once the permission is given to certain representatives, the said right would carry with it a right to compromise, however, such right can be invoked and accepted by the Courts only in compliance with mandatory requirement of Sub Rule (4) of Rule 8 of Order 1 CPC. Therefore, the reliance placed on the aforesaid judgments by the learned counsel for the respondent cannot apply to the present facts and circumstances.</b></p><p><b>The suit in O.S.No.17/2019 is restored  to the file of Principal Civil Judge and JMFC at Humnabad.</b></p>', '605dd8cbd37c754e682485e62a6045f2.JPG', 'd5cd94ff72bda1b17445792dd3fc3e1d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-20', 1, '', '', '2021-12-21 03:44:21', '2021-12-21 03:46:28'),
(1248, 'uY9Tn7RcxGoNV7xOYeOFTpXIt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Unauthorised and illegal construction of buildings affects fundamental and constitutional rights of the Citizens. Take stern action to demolish such buildings. Karnataka High Court directs Corporation.  ', '<p><span style=\"font-weight: bolder;\">K.S.Eshwarappa vs The Commissioner, City Corporation,  Shivamogga and others.<br></span><b>Writ Petition 20333 of 2021 decided 20 December 2021</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The petitioner is before this Court calling in question an order dated 09-11-2021, by which, the property  of the  petitioner is sought to be demolished invoking certain provisions of the Karnataka Municipal Corporations Act, 1976 (‘the Act’ for short) and has sought for a consequential direction by  issuance of writ  in the nature of mandamus to hold that the license for such construction is deemed to have granted by the Shimogga City Corporation (‘the Corporation’ for short) under the Act.</b><b><br></b></p><p><b>11. Therefore, on a conjoint reading of the afore-quoted provisions of the Act, what would unmistakably emerge is  that,  an application seeking construction or re-construction would be submitted under Section 313 of the Act. Without express permission, no work shall be  undertaken under Section 314 of  the Act. Section 315 of the  Act  mandates  the  period  in which  the Corporation is to grant or refuse to grant permission to execute such work and in terms of Section 316 of the Act, on the delay in granting or refusing permission, the applicant is  at  liberty to approach the Standing Committee. The  Standing Committee shall consider such request and pass appropriate </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">order within 30 days and in the event, no order is passed, the permission for such construction is deemed to have  been  granted. Except submission of application under Section 313 of the Act, none of the other statutory formalities are performed by the petitioner nor has displayed patience to wait for such permission to undertake construction.</b></p><p><b>12. It is, therefore, a fit case where the petitioner has wantonly abused law and undertaken construction. It is not a case, where the Corporation has kept quiet on seeing such construction. Several notices were issued by the Corporation against the petitioner but the petitioner goes on by justifying the construction on one pretext or the other, and completes the construction in a breakneck speed and begins to reside by the time, the impugned notice is issued. </b></p><p><b>13. It is also to be noticed that there is an allegation that  the petitioner has encroached Raja Kaluve and constructed the building on such Raja Kaluve. The request for survey that was made by the Corporation on 03-02-2021 is also replied by the Government immediately, that survey has to be conducted on its own, out of its resources and Officers and not communicate to the Department of Survey Settlement. Despite this reply, the Corporation has not taken any steps to conduct a survey or determine encroachment or even reject the application. The application is rejected only on 30-06-2021 and certain notices only for the purpose of record appear to have been issued by the Corporation. If the Corporation had issued notices directing to stop construction it ought to have rejected the application for permission. Therefore, the Officers of the Corporation have also displayed laxity in passing orders or taking timely action and the petitioner has abused the law in undertaking construction without permission. The building which is now completely constructed without even a building license. In such circumstances, no sympathy is required to be shown to the petitioner for having undertaken construction blatantly contrary to law. The order of demolition, thus, cannot be found fault with.</b></p><p><b>In the light of the judgments of the Apex Court as afore-quoted, the prevalent situation either in the limits of the Corporation, Municipality or the Panchayat if noticed, it would demonstrate clear apathy on the part of the Authorities towards the  citizens,  as illegal and unauthorised construction of the buildings and  other structures, as observed by the Apex Court, would not only violate the Municipal Laws, the concept of planned development </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of a particular area, but affects various fundamental and constitutional rights of other persons. The common man bears  the brunt, feels cheated when he finds those making illegal and unauthorised constructions getting support, sometimes, either tacit or direct, by the wings of the State which are enjoined with    a duty to act swiftly and stall such construction.</b></p><p><b>15. Silence or ignorance; turning a blind eye  or a  deaf ear of the Authorities towards the cry of certain citizens who bring into light the alleged illegal constructions will have  to  be forthwith addressed by the powers that  be,  of  such  Corporations, Municipal Councils  and Panchayats, as all power  is a trust that is bestowed upon the servants of the Government   or Officers of the statutory bodies, which the State or  the Statutory Bodies cannot afford to erode.</b></p><p><b>16. This Court has come across umpteen number of cases like the subject petition, wherein allegation is of illegal constructions undertaken and of  the  responsible  Officers  turning a blind eye towards such constructions. It is, therefore, necessary that the jurisdictional Assistant Engineer, Assistant Executive Engineer or the Executive Engineer as the case would be, of all the Corporations, who are empowered to act, under the Act, are required to act swiftly, the moment such illegal or unauthorised construction comes to light, either by such officers themselves or on any complaint being registered against such construction, take action in accordance with law, without  any  loss of time, failing which, the State or the Corporations shall initiate departmental enquiry against those Officers who show or have shown lackadaisical attitude in the performance of their  duty to check the growth of such illegal constructions in their jurisdictions. Administrative tolerance against such Officers should be reduced to zero, as time has come, where a citizen who undertakes illegal or unauthorised construction should be dealt with stern hands, equally so, the Officers who  permit such construction also be dealt with the same stern hands.</b></p><p><b>(i) Writ Petition lacks merit and is dismissed with costs  of Rs.50,000/- payable to the Chief Minister\'s Relief Fund.</b></p><p><b>(ii) The Corporation shall  take  the  impugned  order dated 09.11.2021, to its logical conclusion bearing in mind the observations made in the course of this order.</b></p><p><b>(iii) A copy of this order shall be furnished to the Additional Chief Secretary, Department of Urban Development, for compliance and passage  of necessary orders.</b></p><div><br></div>', 'a27a91e532bf3cb92718b355ca8b12c8.jpg', 'd722374e303788f48c4a3399cd1b09e7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-20', 1, '', '', '2021-12-21 04:24:42', '2021-12-21 04:28:29');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2787, 'a7jurduAuXIktr37Ceviyl6Sa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Value Added Tax. Burden of proving that the Input Tax Credit claim is correct is squarely upon the assessee who must discharge the said burden beyond doubt. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State of Karnataka Vs M/s Ecom Gill Coffee Trading Private Limited.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 230 of 2023 decided on 13 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. As common question of law and facts arise in this group of appeals\r\nand the issue is with respect to interpretation of Section 70 of the\r\nKarnataka Value Added Tax Act, 2003 (hereinafter referred to as the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">‘KVAT Act, 2003’), all these appeals are decided and disposed of\r\ntogether, by this common judgment and order.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The facts leading to the present appeal in nutshell are as under:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>That the respondent herein – M/s Tallam Apparels (hereinafter\r\nreferred to as the ‘purchasing dealer’) purchased readymade garments\r\nfrom other dealers for the purposes of further sale. The purchasing <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dealer claimed the ITC on such sale to the extent of Rs. 4,18,818/-.\r\nVide order dated 26.12.2014, the Assessing Officer disallowed the ITC\r\nclaim for the Assessment Year 2012-2013 on the ground that the dealers\r\nfrom whom M/s Tallam Apparels have purchased the readymade\r\ngarments have either got their registration cancelled or have filed ‘NIL’\r\nreturns. Thus, the Assessing Officer doubted the sale and the payment\r\nof tax on such sale of which the ITC was claimed. An Appeal was filed\r\nby the purchasing dealer. The Appellate Authority dismissed the same\r\nby holding that the burden under section 70 of the KVAT Act, 2003 has\r\nnot been discharged. However, the Karnataka Appellate Tribunal\r\nreversed the orders passed by the Assessing Officer as well as the first\r\nAppellate Authority on the ground that the purchasing dealer should not\r\nsuffer due to default of seller. The revision application before the High\r\nCourt has been dismissed by the impugned judgment and order.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4.2 Insofar as the case of M/s Ecom Gill Coffee Trading Private\r\nLimited being Civil Appeal No. 230 of 2023 is concerned, M/s Ecom – <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">purchasing dealer purchased green coffee bean from other dealers for\r\nthe purposes of further sale in exports and in domestic market. Upon\r\nfinding some irregularities in Input Tax Rebate claimed by the\r\npurchasing dealer for Assessment Year 2010-2011, the Assessing\r\nOfficer issued notice under section 39 of the KVAT Act, 2003 seeking\r\nfurnishing of accounts, books, tax invoices etc. Re-assessment order\r\ncame to be passed. It was found that the purchasing dealer had claimed\r\nITC from mainly 27 sellers and out of aforesaid 27 sellers , six were\r\nfound to be de-registered; three had effected sales to the respondent but\r\ndid not file taxes and six have outrightly denied turnover nor paid taxes.\r\nTherefore, ITC came to be disallowed to the extent of Rs. 10.52 lacs.\r\nThe first Appellate Authority confirmed the findings of the Assessing\r\nOfficer. However, the Tribunal allowed the second appeal on the ground\r\nthat the purchasing dealer purchased the coffee from the registered\r\ndealer under genuine tax invoices and consequently allowed the ITC\r\nclaimed. The revision application before the High Court has been\r\ndismissed, relying upon its earlier decision in the case of M/s Tallam\r\nApparels (supra).</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>We have heard learned counsel for the respective parties at\r\nlength.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>We have gone through the orders passed by the Assessing Officer\r\nand the first Appellate Authority as well as the orders passed by the\r\nsecond Appellate Authority/Tribunal and also the impugned judgment(s)\r\nand order(s) passed by the High Court dismissing the revision\r\napplications. The respondents herein – all purchasing dealers claimed\r\nthe Input Tax Credit on the alleged purchases made from the respective\r\ndealers. The Assessing Officer, on appreciation of evidence and\r\nconsidering the other material on record, doubted the genuineness of\r\nthe transactions and the purchases made from the respective dealers\r\nand denied the ITC. The findings of fact recorded by the Assessing\r\nOfficer came to be confirmed by the first Appellate Authority. However,\r\nthe second Appellate Authority and the High Court have allowed the ITC,\r\nby observing that as the purchasing dealers produced the invoices <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">issued by the respective dealers and that in some of the cases they also\r\nmade the payment through cheques, the Assessing Officer was not\r\njustified in denying the ITC. Against the grant of ITC, the State is before\r\nthis Court.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n8.1 Therefore, the short question which is posed for the consideration\r\nof this Court is, “whether, in the facts and circumstances of the case, the\r\nsecond Appellate Authority as well as the High Court were justified in\r\nallowing the Input Tax Credit?”</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9.1 Thus, the provisions of Section 70, quoted hereinabove, in its plain\r\nterms clearly stipulate that the burden of proving that the ITC claim is\r\ncorrect lies upon the purchasing dealer claiming such ITC. Burden of\r\nproof that the ITC claim is correct is squarely upon the assessee who\r\nhas to discharge the said burden. Merely because the dealer claiming\r\nsuch ITC claims that he is a bona fide purchaser is not enough and\r\nsufficient. The burden of proving the correctness of ITC remains upon\r\nthe dealer claiming such ITC. Such a burden of proof cannot get shifted\r\non the revenue. Mere production of the invoices or the payment made\r\nby cheques is not enough and cannot be said to be discharging the\r\nburden of proof cast under section 70 of the KVAT Act, 2003. The\r\ndealer claiming ITC has to prove beyond doubt the actual transaction\r\nwhich can be proved by furnishing the name and address of the selling\r\ndealer, details of the vehicle which has delivered the goods, payment of\r\nfreight charges, acknowledgement of taking delivery of goods, tax\r\ninvoices and payment particulars etc. The aforesaid information would\r\nbe in addition to tax invoices, particulars of payment etc. In fact, if a dealer claims Input Tax Credit on purchases, such dealer/purchaser\r\nshall have to prove and establish the actual physical movement of\r\ngoods, genuineness of transactions by furnishing the details referred\r\nabove and mere production of tax invoices would not be sufficient to\r\nclaim ITC. In fact, the genuineness of the transaction has to be proved\r\nas the burden to prove the genuineness of transaction as per section 70\r\nof the KVAT Act, 2003 would be upon the purchasing dealer. At the cost\r\nof repetition, it is observed and held that mere production of the invoices\r\nand/or payment by cheque is not sufficient and cannot be said to be\r\nproving the burden as per section 70 of the Act, 2003.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. In the present case, the respective purchasing dealer/s has/have\r\nproduced either the invoices or payment by cheques to claim ITC. The\r\nAssessing Officer has doubted the genuineness of the transactions by\r\ngiving cogent reasons on the basis of the evidence and material on\r\nrecord. In some of the cases, the registration of the selling dealers have\r\nbeen cancelled or even the sale by the concerned dealers has been\r\ndisputed and/or denied by the concerned dealer. In none of the cases,\r\nthe concerned purchasing dealers have produced any further supporting\r\nmaterial, such as, furnishing the name and address of the selling dealer, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">details of the vehicle which has delivered the goods, payment of freight\r\ncharges, acknowledgement of taking delivery of goods, tax invoices and\r\npayment particulars etc. and therefore it can be said that the concerned\r\npurchasing dealers failed to discharge the burden cast upon them under\r\nSection 70 of the KVAT Act, 2003. At the cost of repetition, it is\r\nobserved and held that unless and until the purchasing dealer\r\ndischarges the burden cast under Section 70 of the KVAT Act, 2003 and\r\nproves the genuineness of the transaction/purchase and sale by\r\nproducing the aforesaid materials, such purchasing dealer shall not be\r\nentitled to Input Tax Credit.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Now so far as the reliance placed upon Rules 27 and 29 of the\r\nKarnataka Value Added Tax Rules, 2005 and the submission on behalf\r\nof the purchasing dealers that under the provisions of the Rules 2005,\r\nmore particularly under Rules 27 & 29, the only requirement is to issue\r\nthe tax invoice and to produce the same and there is no other\r\nrequirement is concerned, the aforesaid has no substance. Rule 27 cast\r\nan obligation on the dealers to issue tax invoice and the particulars of\r\nthe tax invoice are provided under Rule 29. Merely because the tax\r\ninvoice as per Rule 27 and Rule 29 might have been produced, that by\r\nitself cannot be said to be proving the actual physical movement of the\r\ngoods, which is required to be proved, as observed hereinabove.\r\nProducing the invoices as per Rules 27 and 29 of the Rules 2005 can be\r\nsaid to be proving one of the documents, but not all the documents to\r\ndischarge the burden to prove the genuineness of the transactions as\r\nper section 70 of the KVAT Act, 2003.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. Now so far as the reliance upon the decision of the Delhi High\r\nCourt in the case of On Quest Merchandising India Pvt. Ltd. v.\r\nGovernment of NCT of Delhi (Writ Petition (Civil) No. 6093/2017,\r\ndecided on 26.10.2017), relying upon by the learned counsel appearing\r\non behalf of the purchasing dealers is concerned, at the outset, it is\r\nrequired to be noted that before the Delhi High Court, Section 9(2)(g) of\r\nthe Delhi Value Added Tax Act was under consideration. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The burden of proof as per Section 70 of the KVAT Act, 2003 was\r\nnot an issue before the Delhi High Court. How and when the burden of\r\nproof can be said to have been discharged to prove the genuineness of\r\nthe transactions was not the issue before the Delhi High Court. As\r\nobserved hereinabove, while claiming ITC as per section 70 of the KVAT\r\nAct, 2003, the purchasing dealer has to prove the genuineness of the\r\ntransaction and as per section 70 of the KVAT Act, 2003, the burden is\r\nupon the purchasing dealer to prove the same while claiming ITC.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. In view of the above and for the reasons stated above and in\r\nabsence of any further cogent material like furnishing the name and\r\naddress of the selling dealer, details of the vehicle which has delivered\r\nthe goods, payment of freight charges, acknowledgement of taking\r\ndelivery of goods, tax invoices and payment particulars etc. and the\r\nactual physical movement of the goods by producing the cogent\r\nmaterials, the Assessing Officer was absolutely justified in denying the\r\nITC, which was confirmed by the first Appellate Authority. Both, the\r\nsecond Appellate Authority as well as the High Court have materially\r\nerred in allowing the ITC despite the concerned purchasing dealers\r\nfailed to prove the genuineness of the transactions and failed to\r\ndischarge the burden of proof as per section 70 of the KVAT Act, 2003.\r\nThe impugned judgment(s) and order(s) passed by the High Court and\r\nthe second Appellate Authority allowing the ITC are unsustainable and\r\ndeserve to be quashed and set aside and are hereby quashed and set\r\naside. The orders passed by the Assessing Officer denying the ITC to\r\nthe concerned purchasing dealers, confirmed by the first Appellate\r\nAuthority are hereby restored.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. The instant appeals are accordingly allowed. However, there shall\r\nbe no order as to costs. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '84663e48ca68589d142ac9b4384bbc6a.jpeg', '12c974f8d0e11ba0e413ed6543e6244a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-14', 1, '', '', '2023-03-13 18:02:09', '2023-03-14 06:59:02'),
(1250, 'CWFir5hSCG6Q4JMPsZvSZ0ekr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prevention of Corruption Act. Death of main accused husband will NOT result in automatic abatement of criminal proceedings for abetment under the Indian Penal Code against wife. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Central Bureau of Investigation vs V.M. Saraswathy<br>Criminal Revision Petition 304 of 2019 and connected matter.</span></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Whether<span style=\"white-space:pre\">	</span>abatement annihilates abetment is the issue to be answered in the subject lis.</b><span style=\"font-weight: bolder;\"><br></span></p><p><b>10. The facts narrated hereinabove not being in dispute are not reiterated. The issue that falls for my consideration in&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the subject lis is whether the proceedings against accused&nbsp; No.1, husband of the petitioner having abated on account of his death, would it not obliterate the offence of abetment under Section 109 of the IPC against the petitioner and consequently the proceedings have to be quashed.&nbsp;&nbsp;</b></p><p><b>The offence alleged was that accused No.1 husband had amassed assets disproportionate to his known sources of income during the&nbsp; period between 01-01-2005 and 31-03-2013. It is during this period the petitioner is alleged to have abetted her husband. On the death of accused No.1/husband, the petitioner filed application seeking discharge on several grounds. The Special Judge while declining to discharge the petitioner directs the CBI to charge the petitioner for offence punishable under Section 13(1)(e) read with Section 13(2) of the PC Act. It is now necessary to consider the correctness of the impugned order and the fact whether the proceedings can continue against the petitioner for the offence of abetment.&nbsp;</b></p><p><b>The Apex Court in the case of JAMUNA SINGH holds that a person abetting an offence by intentionally aiding another to commit that offence, the charge of abetment against such abettor would fall, if the person alleged to have committed the offence is acquitted of the offence. The Apex Court also holds that if it was a case of conspiracy it would have&nbsp; been&nbsp; a different circumstance.</b></p><p><b>16. Even in the judgment of PANKAJ PATHAK rendered by the Division Bench of the Madhya Pradesh High Court, the facts are identical except the added allegation concerning Section 471 of IPC against the husband. Against the wife therein it was only under Section 109 of IPC. The said judgment also would become applicable to the facts&nbsp; of&nbsp; the case at hand. Both the Division Benches and that of the&nbsp; learned single Judge of Bombay High Court in my considered view cover the issue against the petitioner in Writ Petition No.33084 of 2018.</b></p><p><b>17. The issue now is which Court should try the offence of Section 109 of IPC. Whether it is the Special Court before whom the offences under the Prevention of Corruption Act are to be tried or the competent criminal Court trying the offence of abetment.&nbsp;</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">On a coalesce of the judgments of the Apex Court considered hereinabove, what would unmistakably emerge is that death&nbsp; of the husband during trial before the charges are framed will not result in closure of trial against the co-accused, the co- accused, in the case at hand, who is alleged of&nbsp; abetment&nbsp; under Section 109 of the IPC. The Special Judge for cases arising under different provisions of Prevention of Corruption Act cannot try the subject offence. Therefore, the competent criminal Court of the appropriate jurisdiction will have to try the allegation under Section 109 of the IPC against the wife. The question that had arisen for consideration is answered in the peculiar facts of this case holding that abatement does not annihilate abetment.</b></p><p><b>(c)Challenge to the continuance of trial against the petitioner/accused No.2 for the offence punishable under Section 109 of the IPC is rejected.</b></p><p><b>(d) The Special Court hearing Spl.C.C.No.308 of 2015 cannot hear the matter and the trial will have to be continued before the competent Criminal Court against accused No.2.</b></p><div><br></div>', '5cbd23e4c5a06696d9d98757e6de1e9e.jpg', '5cf24923165186231cbd535d6628314a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-22', 1, '', '', '2021-12-23 05:17:59', '2021-12-23 05:17:59'),
(2691, 'TfgD3t7FGoYpxBMuzEwCmsAYo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Muslim man marrying second wife. First wife can stay away from the matrimonial home, seek divorce and retain exclusive custody of her minor child. Karnataka High Court.', '<p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Mohammed Mushtaq G.K. vs Ayesha Banu </span><br></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><b>Writ Petition 16885 of 2021 decided on 21 December 2021. </b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><b>Justice Krishna S. Dixit.</b></span></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">This is a legal battle between the estranged  spouses  for the custody of a minor child. petitioner, being the husband of respondent is knocking at the doors of Writ Court for assailing the order dated 17.12.2018, a copy whereof is at Annexure-E whereby, the learned IV Addl. Family Court Judge, Bangalore, having rejected his application in I.A.No.3 for custody of the child in his G & WC No.77/2017; however, has accorded visitation rights to the petitioner.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p><b>5. Having heard the learned advocate for the petitioner and the respondent party-in-person and having perused the Petition Papers, this court declines indulgence  in the matter for the following reasons.</b></p><p><b>(a) In a society like ours, the disputes relating to child  custody by their  very nature are complex, regardless  of religion or faith to which the parties belong;  at  times  they become complicated when the husband contracts another marriage taking shelter under the umbrella of personal law, i.e. Mohammedan Law or the like; the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">complication escalates to the higher level when a child is born from the second marriage, and the husband starts residing with the second family to the exclusion of the first wife who is bringing up the child all alone; all this has happened in this case, as borne out by the record.</span></b></p><p><b>(d) Mother, step-mother & child: The submission of learned counsel for the petitioner that his client has the 2nd wife who has filed an affidavit that petitioner & she  would take care of the child, is true; this  is  too  poor  a solace to the biological mother; experience working on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reason tells that ordinarily step-mothers would not be able  to take care of and show affection to the  children  which their biological mothers instinctively would show;  more than a century ago (1911) in T.N.MUTHUVEERAPPA CHETTY vs. T.R.PONNUSWAMI CHETTY, 13 IND CAS</span></b></p><p><b>16, what the Madras High Court observed is pertinent:</b></p><p><i><b>“…It would make it the  duty  of  the Court to come  to its own conclusion as to what  would  best promote the minor’s interests. It does not appear that, excepting the respondent’s wife, there is any female relation living with him competent to take proper care of the child. It would be hardly safe to presume that his wife, the child’s  step-mother, would be willing to do so…  There  is  good  reason for believing that the maternal relations have  strong affection for the child…”</b></i></p><p><b>This is not to cast any aspersion  on  step-mothers  in  general and the 2nd wife of the petitioner  in  particular;  when it comes to welfare of the child, one has to err on the safer side, raising a presumption u/s. 114 of the Evidence Act, 1872 “…regard being had to the common course of natural events, human conduct …in their relation to the facts of the particular case”, than to put a tender child to  the possible risk of “step-motherly treatment.” What a biological mother means to a child cannot be better explained than by quoting “To my Mother” (1849) the poem penned by an American poet Edgar Allan Poe:</b></p><p><i><b>Because I feel that, in the Heavens above, The angels, whispering to one another,<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Can find, among their burning terms of love,<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">None so devotional as that of ‘Mother’ …</span></b></i></p><p><b>(e) Islamic law, juristic view & child custody: <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Islamic jurist Asaf A.A.Fyzee in his Outlines of Muhammadan Law, 5th Edn. Oxford at page 161  writes: “The custody of an infant child belongs to the mother”. He quotes the following  from  another  scholarly  work  ie.,  Baillie I, 435:</span></b></p><p><i><b>“The mother is, of all persons, the  best  entitled  to the custody of her infant child during marriage and after separation from her husband, unless  she  be  an apostate, or wicked, or unworthy to be trusted”.</b></i></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Mulla’s Principles of Mahomedan Law, 20th Edn., Butterworths, at page 439 quotes Hamilton  Volume  I, page 385:</span><br></b></p><p><i><b>“If a separation takes place between a husband and wife, who are possessed of an infant child, the right of nursing and keeping it rests with the  mother  because it is recorded that the woman once applied to the Prophet, saying: ‘O Prophet of God; this is my son, the fruit of my womb, cherished in my bosom and suckled at my breast, and his father is desirous of taking him away from me into his own ‘care’ to which the Prophet replied ‘thou hast a right  in the child prior to that of thy husband. So long as thou does not marry with a stranger’. Moreover, a mother is naturally not only more tender, but also better qualified to cherish a child during infancy,  so that committing the care to her is of advantage to the child…”</b></i></p><p><b>Now it has been well settled that the act of a Muslim in espousing a second wife during the subsistence of first marriage per se amounts to cruelty and that not only the  first wife can stay away from the matrimonial home  but  seek divorce too on that ground vide Division  Bench decision of this Court in SRI YUSUFPATEL vs. SMT.RAMJANBI, ILR 2021 KAR 746; if the wife can stay away from the matrimonial home on the ground of second marriage, it goes without saying that she can  normally  retain the exclusive custody of her minor child;  an  argument to the contrary would permit an unscrupulous husband who contracts another marriage, to pressurize his first wife to continue in the matrimonial home, eventually retaining the  child  in his exclusive custody;  this Court  is   of a considered view  that even the visitation rights of such    a father will diminish to a great extent, subject to all just exceptions, reasons having already been stated above; this court hastens to add that such a diminution in no way absolves him from providing sustenance to the child.</b></p><p><b>In the above circumstances, this writ petition being devoid of merits is dismissed with a cost of Rs.50,000/- (Rupees fifty thousand) only which the petitioner shall pay to the respondent within one month, failing which all his visitation rights granted by the impugned order stand suspended</b>.</p>', '664d9f9f62df85487d5a2710b0a3d108.jpeg', '9b6eec0d7402277f6f5eb1e108d2b72f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-17', 1, '', '', '2023-02-17 10:50:22', '2023-02-17 10:52:24'),
(1252, 'NAyzukManEP763VGZA1npzuYR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Medical privacy is part of right to life under Article 21. Court cannot direct a doctor to divulge secrets of his patient without strong reasons. Karnataka High Court ', '<p><span style=\"font-weight: bolder;\">Gayatri @ Gadivevva vs Vijay <br></span><b>Writ Petition 102933 of 2021 decided on 3 December 2021</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The petitioner is the wife who has presented  this  petition assailing the order passed by the Family Court, Dharwad (for short, ‘the Family Court), by which, her husband’s request to summon the Doctor to produce documents relating to her alleged abortion has been granted.</b><b><br></b></p><p><b>4. In the proceedings for divorce, an application was filed to issue a direction to one Dr.Smita of Dr.Ramanagouda Hospital, Malapur Cross, Dharwad to produce the entire case details (Including declaration letter, undertaking letter, daily summary report sheet, doctor report, scan copy and other all relating copies) and also to give evidence on the said documents in respect of wife who was stated to have been treated under Patient I.D.No.30386.</b></p><p><b>9. The Trial Court, after hearing, has proceeded to allow the application mainly on the ground that  the  documents maintained by the Doctor of a Private  Hospital were private documents. The Court reasoned that the said private documents were related to one of the parties  and since the husband, by virtue of his legal relationship with his wife, was entitled to obtain the records concerning his wife. The Family Court took the view that there was no question of Hospital Authorities maintaining secrecy in respect of medical records of the wife vis-à-vis the husband. The Family Court also observed that the proposed documents were very much necessary since it related to the wife and it,  therefore,  allowed the said application.</b></p><p><b>20.<span style=\"white-space:pre\">	</span>Having heard the learned counsel for the parties, the following issue arises for consideration in this  writ  petition.</b></p><p><b><i>“Whether, it is permissible for a Family Court to summon the medical records of a spouse on the request of the other spouse, especially when it pertained to records relating to any procedures relating to the reproductive choices of the spouse?”</i></b></p><p><b>21. The Regulations framed for the professional conduct of the medical practitioners require the medical practitioner to give a declaration at the time of registration. One of the declarations given by the medical practitioner is “I  will  respect the secrets which are confided in me”. Thus, the medical practitioner is statutorily bound to maintain secrecy in respect of the things which are confined to the medical practitioner by the patient. This declaration, fundamentally, establishes that the Doctor-Patient relationship is one of absolute trust and should not be broken.</b></p><p><b>23. As could be seen in Regulation 7.14 of the Regulations, 2002, there is an absolute embargo on the medical practitioner from disclosing the secrets of a patient </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that comes within the knowledge of the medical practitioner during the discharge of his professional duties.</b></p><p><b>24. To this embargo, however, there are three exceptions. The first exception, with which we are concerned, is when a presiding Judge passes an order calling upon the medical practitioner to divulge a secret that he is aware of regarding his patient. Thus, unless there is a specific order of  a Judge presiding over a Court of law, no medical practitioner can disclose the secrets that he has become privy to during  the discharge of his professional duties.</b></p><p><b>25. Merely because a Court of law possesses that power to direct the medical practitioner to divulge a secret confided with a medical practitioner, that power would not and should not be exercised merely for the asking or routinely.  The  power to direct a medical practitioner to act in violation of his declaration should be exercised only for strong  and  compelling reasons and would be more or less be exercised only when an element of public interest was involved.</b></p><p><b>27. In order to get over the bar imposed on the medical practitioners to disclose the secrets of the patients to which they are privy, the Courts should not be asked to exercise  their power to secure medical records. If this is permitted, it would mean the Medical practitioner is required to divulge the secrets that the patient has disclosed to him contrary to his professional ethics only because an adversary in litigation wishes to use it to non-suit the other.</b></p><p><b>28. It is to be kept in mind that the medical records of  an individual are very private and are not for public consumption. If the medical record of a person is private to him, a direction to his medical practitioner to produce the medical records or divulge any secret that he is privy to it  </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">would essentially amount to infringing the fundamental right  of privacy guaranteed to an individual, which emanates from the “Right to Life” granted under Article 21 of Constitution of India.</b></p><p><b>31. The matter would also have to be looked at from a different point of view. S. 126 of the Evidence Act, which  deals with professional communications, grants immunity to the professional named therein, i.e., a Vakil, barrister, or pleader from divulging the communication made to him by his client. S. 151 and S. 152 of the Indian Evidence Act prohibits indecent or scandalous questions and also question which are intended to insult or annoy the witnesses from being asked. A conjoint reading of S. 126, S. 151 and 152 along with the Regulations would lead to the inference that a Doctor would also be entitled to the same privilege that the  Advocate  enjoys in the matter of his professional communication with  his client.</b></p><p><b>34. The only exceptions to this bar could be when one of the parties to the lis is under a legal disability which is probably handicapping him in some way and in order to safeguard his legal rights, an evaluation of his physical or mental health would be necessary. In other words, when a party is under a disability, in order to ascertain the disability, the Courts can in appropriate cases direct the parties to subject themselves to a medical examination. The exercise of this right is to obviously protect the litigant and not to extract some private information from the litigant which may aid the opposing litigant.</b></p><p><b>40. The Doctor, even if summoned, cannot by the production of medical records, assist the Court in concluding  </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as to whether the wife had  voluntary sexual intercourse  with a person other than the husband. If the husband can prove that he had no access to his and if he can establish that his wife had or was having any illicit sexual relationship with another person, the same will have to be established by appropriate evidence as provided under the Evidence Act.</b></p><p><b>41. In any event, the illicit relationship of a spouse cannot be proved by securing his or her private medical records. In fact, if this approach is to be accepted, it would amount to the destruction of the entire concept of Doctor and patient confidentiality and also drag the Doctor into a marital dispute.</b></p><p><b>42. I am therefore of the view that the impugned order cannot be sustained and the same is hereby set aside. Consequently, I.A.No.IX shall stand rejected and the Writ Petition is allowed.</b></p><div><br></div>', '202ff4bf9930cb8fc6bac33f93c94e91.jpg', 'fbbf3cf7206f5bf51ea9cd6e3933c408.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-23', 1, '', '', '2021-12-24 01:40:27', '2021-12-24 01:41:42'),
(1253, 'jrgIfo1x9AuQg07gxa8IUm8Uo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Violation of right to privacy\'\'. Karnataka High Court annuls trial court order which directed doctor to disclose abortion details of woman in matrimonial proceedings. . ', '<p><b>Gayatri @ Gadivevva vs Vijay&nbsp;</b></p><p><b>Writ Petition 102933 of 2021 decided on 3 December 2021</b></p><p><b>The petitioner is the wife who has presented&nbsp; this&nbsp; petition assailing the order passed by the Family Court, Dharwad (for short, ‘the Family Court), by which, her husband’s request to summon the Doctor to produce documents relating to her alleged abortion has been granted.</b></p><p><b>4. In the proceedings for divorce, an application was filed to issue a direction to one Dr.Smita of Dr.Ramanagouda Hospital, Malapur Cross, Dharwad to produce the entire case details (Including declaration letter, undertaking letter, daily summary report sheet, doctor report, scan copy and other all relating copies) and also to give evidence on the said documents in respect of wife who was stated to have been treated under Patient I.D.No.30386.</b></p><p><b>9. The Trial Court, after hearing, has proceeded to allow the application mainly on the ground that&nbsp; the&nbsp; documents maintained by the Doctor of a Private&nbsp; Hospital were private documents. The Court reasoned that the said private documents were related to one of the parties&nbsp; and since the husband, by virtue of his legal relationship with his wife, was entitled to obtain the records concerning his wife. The Family Court took the view that there was no question of Hospital Authorities maintaining secrecy in respect of medical records of the wife vis-à-vis the husband. The Family Court also observed that the proposed documents were very much necessary since it related to the wife and it,&nbsp; therefore,&nbsp; allowed the said application.</b></p><p><b>20.<span style=\"white-space:pre\">	</span>Having heard the learned counsel for the parties, the following issue arises for consideration in this&nbsp; writ&nbsp; petition.</b></p><p><b><i>“Whether, it is permissible for a Family Court to summon the medical records of a spouse on the request of the other spouse, especially when it pertained to records relating to any procedures relating to the reproductive choices of the spouse?”</i></b></p><p><b>21. The Regulations framed for the professional conduct of the medical practitioners require the medical practitioner to give a declaration at the time of registration. One of the declarations given by the medical practitioner is “I&nbsp; will&nbsp; respect the secrets which are confided in me”. Thus, the medical practitioner is statutorily bound to maintain secrecy in respect of the things which are confined to the medical practitioner by the patient. This declaration, fundamentally, establishes that the Doctor-Patient relationship is one of absolute trust and should not be broken.</b></p><p><b>23. As could be seen in Regulation 7.14 of the Regulations, 2002, there is an absolute embargo on the medical practitioner from disclosing the secrets of a patient that comes within the knowledge of the medical practitioner during the discharge of his professional duties.</b></p><p><b>24. To this embargo, however, there are three exceptions. The first exception, with which we are concerned, is when a presiding Judge passes an order calling upon the medical practitioner to divulge a secret that he is aware of regarding his patient. Thus, unless there is a specific order of&nbsp; a Judge presiding over a Court of law, no medical practitioner can disclose the secrets that he has become privy to during&nbsp; the discharge of his professional duties.</b></p><p><b>25. Merely because a Court of law possesses that power to direct the medical practitioner to divulge a secret confided with a medical practitioner, that power would not and should not be exercised merely for the asking or routinely.&nbsp; The&nbsp; power to direct a medical practitioner to act in violation of his declaration should be exercised only for strong&nbsp; and&nbsp; compelling reasons and would be more or less be exercised only when an element of public interest was involved.</b></p><p><b>27. In order to get over the bar imposed on the medical practitioners to disclose the secrets of the patients to which they are privy, the Courts should not be asked to exercise&nbsp; their power to secure medical records. If this is permitted, it would mean the Medical practitioner is required to divulge the secrets that the patient has disclosed to him contrary to his professional ethics only because an adversary in litigation wishes to use it to non-suit the other.</b></p><p><b>28. It is to be kept in mind that the medical records of&nbsp; an individual are very private and are not for public consumption. If the medical record of a person is private to him, a direction to his medical practitioner to produce the medical records or divulge any secret that he is privy to it&nbsp; would essentially amount to infringing the fundamental right&nbsp; of privacy guaranteed to an individual, which emanates from the “Right to Life” granted under Article 21 of Constitution of India.</b></p><p><b>31. The matter would also have to be looked at from a different point of view. S. 126 of the Evidence Act, which&nbsp; deals with professional communications, grants immunity to the professional named therein, i.e., a Vakil, barrister, or pleader from divulging the communication made to him by his client. S. 151 and S. 152 of the Indian Evidence Act prohibits indecent or scandalous questions and also question which are intended to insult or annoy the witnesses from being asked. A conjoint reading of S. 126, S. 151 and 152 along with the Regulations would lead to the inference that a Doctor would also be entitled to the same privilege that the&nbsp; Advocate&nbsp; enjoys in the matter of his professional communication with&nbsp; his client.</b></p><p><b>34. The only exceptions to this bar could be when one of the parties to the lis is under a legal disability which is probably handicapping him in some way and in order to safeguard his legal rights, an evaluation of his physical or mental health would be necessary. In other words, when a party is under a disability, in order to ascertain the disability, the Courts can in appropriate cases direct the parties to subject themselves to a medical examination. The exercise of this right is to obviously protect the litigant and not to extract some private information from the litigant which may aid the opposing litigant.</b></p><p><b>40. The Doctor, even if summoned, cannot by the production of medical records, assist the Court in concluding&nbsp; as to whether the wife had&nbsp; voluntary sexual intercourse&nbsp; with a person other than the husband. If the husband can prove that he had no access to his and if he can establish that his wife had or was having any illicit sexual relationship with another person, the same will have to be established by appropriate evidence as provided under the Evidence Act.</b></p><p><b>41. In any event, the illicit relationship of a spouse cannot be proved by securing his or her private medical records. In fact, if this approach is to be accepted, it would amount to the destruction of the entire concept of Doctor and patient confidentiality and also drag the Doctor into a marital dispute.</b></p><p><b>42. I am therefore of the view that the impugned order cannot be sustained and the same is hereby set aside. Consequently, I.A.No.IX shall stand rejected and the Writ Petition is allowed.</b></p><p><br></p>', '5107b5df7be2e03a8bc5e87eab824c4d.jpg', '36efd9b4e99724235b47f1994075d400.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-23', 1, '', '', '2021-12-24 02:04:12', '2021-12-24 02:04:12'),
(1254, 'UaincSCygZjLRVzWqa335QITV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court orders release of deserted wife and child held captive in shelter meant for victims of trafficking for commercial sexual exploitation. Imposes heavy costs on the Police officer for \'\'insensitive and inhuman\'\' act. ', '<p><span style=\"font-weight: bolder;\">Yashoda vs The State of Karnataka and others.<br>Writ Petition 104231 of 2021 decided on 8 December 2021</span></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1. This case represents the saga of an unfortunate lady, who has been held captive in a house meant for rescuing trafficking victims and those who are commercial sexually exploited.</b><span style=\"font-weight: bolder;\"><br></span></p><p><b>6. According to the petitioner, the said Shri Sunil Balasaheb Patil suggested that the petitioner reconcile her differences and live with her husband, but she refused and the said Shri Sunil Balasaheb Patil, therefore, sent the petitioner along with her 3-year-old daughter to stay at a shelter called “Ujjwala Scheme” for Prevention of Trafficking, Rescue & Rehabilitation of Victims of Trafficking for Commercial Sexual Exploitation, which has been arrayed as the third respondent herein.</b></p><p><b>7. As the name of the third respondent suggests, it is a shelter to provide for the care of victims of trafficking and also for rescue and rehabilitation of victims of trafficking of commercial sexual exploitation.</b></p><p><b>8. The fact that the petitioner was sent to reside at the third respondent is not in dispute. The petitioner contends that she was sent against her Will and despite repeated requests to be released by her, she was not released.</b></p><p><b>11. It is rather shocking that a Police Inspector would take a 22-year-old lady and her 3-year-old daughter and get them admitted to a shelter, which was essentially meant to rescue victims of trafficking. As could be seen from his affidavit, the petitioner never requested for being provided with shelter. The petitioner had in fact, clearly expressed that she was not ready to go along with her husband and even her parents had refused to come to the Station.</b></p><p><b>16. It is quite shocking that an Inspector of Police decided to send a 22-year-old mother along with her 3-year-old daughter to a shelter which was meant to house victims rescued from trafficking and to those who were sexually exploited. This act of the Inspector indicates complete lack of sensitivity and humanity on his part.</b></p><p><b>29. I am therefore of the view that the petitioner is entitled to be released forthwith and be permitted to lead a life of her choice.</b></p><p><b>33. It is settled law that in a proceeding under Article </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">226 of the Constitution, the Constitutional Courts are empowered to award compensation for contravention of fundamental right of a citizen. </b></p><p><b>34. Having regard to the fact that the petitioner and her 3-year-old daughter was held captive in a shelter home    for almost half a year, I am of the view that the interest of justice would be subserved if Shri Sunil Balasaheb Patil, the Inspector of Police of the 4th respondent police station be directed to pay a sum of Rs.1,00,000/- as costs.</b></p><p><b>35. Similarly, since the third respondent acted with an unseemly enthusiasm to comply with the illegal request of Shri Sunil Balasaheb Patil and forcibly held the petitioner despite her repeated requests to be released, the fourth respondent would also be liable to pay costs of Rs.1,00,000/-.</b></p><p><b>39. Accordingly, the writ petition is allowed and the third respondent is directed to release the petitioner forthwith and further the third and fourth respondents are directed to deposit the cost of Rs.2,00,000/- as stated above.</b></p>', '26a8560ccb0e671b52f94ba3fe65b971.jpg', '139d50fdb3a488904a6ee42f30af03d2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-12-24', 1, '', '', '2021-12-25 00:48:42', '2021-12-25 00:55:56');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1255, '9jfPrOK3hK7z8KF2wAaDNuwKV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘Police Informer’ would also come within the definition of ‘Witness’ under Section 2(k) of the Witness Protection Scheme, 2018. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Farooq Hussain vs State of Karnataka and others.<br>Writ Petition 15032 of 2019 decided on 20 September 2021</span></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1. Whether a ‘Police Informer’ would come within the definition of ‘Witness’ under Section 2(k) of the Witness Protection Scheme, 2018?</b><span style=\"font-weight: bolder;\"><br></span></p><p><b>7.1.<span style=\"white-space:pre\">	</span>The aims and objectives of the Scheme are extracted hereunder for easy reference:</b></p><p><i><b>“Aims &amp; Objective:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The ability of a witness to give testimony in a judicial setting or to cooperate with law enforcement and investigations without fear of intimidation or reprisal is essential in maintaining the rule of law. The objective of this Scheme is to ensure that the investigation, prosecution and trial of criminal offences is not prejudiced because witnesses are intimidated or frightened to give evidence&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">without protection from violent or other criminal recrimination. It aims to promote law enforcement by facilitating the protection of persons who are involved directly or indirectly in providing assistance to criminal law enforcement agencies and overall administration of Justice. Witnesses need to be given the confidence to come forward to assist law enforcement and Judicial Authorities with full assurance of safety. It is aimed to identify series of measures that may be adopted to safeguard witnesses and their family members from intimidation and threats against their lives, reputation and property.”</b></i></p><p><b>7.2.<span style=\"white-space:pre\">	</span>The<span style=\"white-space:pre\">	</span>scope of<span style=\"white-space:pre\">	</span>the Scheme is<span style=\"white-space:pre\">	</span>extracted hereunder for easy reference:</b></p><p><i><b>“Scope of the Scheme:&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Witness Protection may be as simple as providing a police escort to the witness up to the Courtroom or using modern communication technology (such as audio video means) for recording of testimony. In other more complex cases, involving organised criminal group, extraordinary measures are required to ensure the witness’s safety viz. anonymity, offering temporary residence in a safe house, giving a new identity, and relocation of the witness at an undisclosed place. However, Witness protection needs of a witness may have to be viewed on case to case basis depending upon their vulnerability and threat perception.”</b></i></p><p><b>7.5.<span style=\"white-space:pre\">	</span>From the aims and objectives of the Scheme, it is clear that the said Scheme came to be evolved in pursuance of the various decisions of the Apex Court wherein the Apex Court has directed the witnesses to be protected if the witnesses get threatened or forced to give&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">false evidence that would not result in a fair trial.</b></p><p><b>7.6.<span style=\"white-space:pre\">	</span>The Law Commission of India submitted various reports as regards the protection to be granted to the witnesses as also the fourth National Police Commission’s Report has noted that prosecution witnesses turned hostile because of pressure of accused and there was need of regulation to check manipulation of witnesses.</b></p><p><b>7.8.<span style=\"white-space:pre\">	</span>The aim and objective of the Scheme is to ensure that investigation, prosecution and trial of criminal offences are not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent and/or other criminal recrimination and further to ensure that people co-operate with Law Enforcement Agencies and Investigating Officers without&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">fear of intimidation or reprisal in order to maintain the Rule of Law.</b></p><p><b>7.9. The scope of the Scheme would indicate that the witnesses protection has to be viewed on case to case basis depending upon the vulnerability and threat perception.</b></p><p><b>7.14. Thus any person cooperating with the law enforcement and investigations would also qualify to be a witness.</b></p><p><b>7.15. As per the Scheme such a witnesses needs to be given the confidence to come forward to assist law enforcement and Judicial Authorities with full assurance of safety.</b></p><p><b>7.16. It is in this background that the role of a Police informer assumes great importance. It is well recognized that the Police force and any other Investigation Authority depends heavily on information and surveillance to ascertain and stop any offence from being&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">committed, it is a ‘Police Informer’ for various reasons, being for appreciation, commission, necessity or even enmity reports and provides information to the Officers as regards the possibility of offence being committed. This assumes more importance in today’s world where there are serious threats of extremism, terrorism, and organized crime. If not for information being received from a Police Informer, the Investigating Officers and other Authorities would not know about the said offence proposed to be committed and would come to know of the offence only after it had been committed and then a postmortem and investigation would be required to be conducted to fix liability on the person who committed the said offence, again without any idea of who committed the crime. A police informant can provide answers to&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">many of these questions, which, of course would have to be determined and not taken at face value.</b></p><p><b>7.17. In cases where offences are relating to organized crime which are committed like in the present case by the Irani Gang which had involved in 100’s of robberies which have been brought to the notice of the Police Authorities by the Petitioner, there is also threat to life and liberty of such informer because these offences are committed by habitual offenders who normally would not have any regard for the life and liberty of informers like the Petitioner. Such persons, who committed these crimes in an organized manner could also go to any extreme to suppress the crime and/or the persons who proposed to report or provide information as regards such crime. Thus, in my considered&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">opinion, it is not only a person who provides testimonial evidence in a judicial proceedings during a course of trial but also a person who provides information about any offence committed or to be committed, who would come within the definition of ‘Witness’ under the Scheme.</b></p><p><b>7.18. The said Scheme being a beneficial Scheme, the Scheme would be applicable to benefit any person who provides such information of an offence committed or offence to be committed.</b></p><p><b>7.23. In view of the afore stated reasons, I answer point No.1 by holding that the Police informer also comes within the purview of the meaning and definition under Section 2(k) of the Scheme.</b></p>', '715b552e8f8375a9517d296b5e83dca6.jpeg', '9a67a4b011d4def19fdadb0928160383.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-02', 1, '', '', '2022-01-03 03:15:05', '2022-01-03 03:15:05'),
(1256, 'wNdHZPO1ihMBninVzHkyEQrJt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Land Reforms Act. Doubtful tenant cannot get temple lands on the ground of agrarian reforms. Tribunal has to see that lands granted by devotees are not lost. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Admar Mutt vs Yashoda by lrs and others.<br></span><b>Writ Appeal 15198 of 2011 decided on 23 December 2021</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10.<span style=\"white-space:pre\">	</span>A perusal of the impugned order of the Tribunal shows that Tribunal has not framed the said questions for consideration nor has it given any finding thereon with supporting   reasons.<span style=\"white-space:pre\">	</span>The clear assertion of the representative of the appellant before the Tribunal was that Form No.7 applicant - Anantha Bhatta was working as a cook in the Mutt and he was given the premises for his occupation. In passing it is observed by the Tribunal that in the subject land there were coconut trees, areca trees and </b><b><br></b></p><p><b>11.<span style=\"white-space:pre\">	</span>Further, a learned Single Judge of this Court while dealing with the question similar to the one involved in the present case reported in 1980 (1) KLJ 54 (C.V.GOURAMMA v. THE LAND TRIBUNAL, BANTWAL & ORS.) has observed as follows:</b></p><p><b><i>“14. ……………. It is also common knowledge that in most of the plots in the District, where houses are erected, a few coconut trees or other fruit bearing trees such as mango or jackfruit, are generally planted in the compound. The mere existence of one or few fruit bearing trees in the compound of a house would not make intention of granting the land was for constructing a house or that it was granted as a house site. One has to take into consideration all the circumstances such as nature of the land, the extent of the land granted, the purpose for which it was used, the water facilities etc., for determining whether a particular plot of land is agricultural land or not. The mere existence of a few fruit bearing trees in a compound of a house would not make the plot in question agricultural land on that ground alone<span style=\"white-space:pre\">	</span>”</i></b></p><p><b>12.<span style=\"white-space:pre\">	</span>It is clearly observed in the VENKATESH SHET’S case supra that in the Undivided South Kanara District of which Udupi District was a part, it was common knowledge that throughout the west-coast, when a house was let there used to be some appurtenant land which would contain few coconut trees or mango trees or such other fruit trees. In GOURAMMA’s case, the learned Single Judge has relied on the ratio in VENKATESH SHET’s case and further emphasised that while considering the genuineness of Form No.7 filed for conferment of registration as occupant of a “land”, this Court should have regard to the fact whether Land Tribunal has considered the circumstances like nature of the land, the extent of the land to be granted, the purpose for which it was used for determining whether a particular land is an agricultural land or not.</b></p><p><b>15.<span style=\"white-space:pre\">	</span>It is also evident that land granted by the Tribunal measures only 7½ cents (i.e. 3267 sq. ft.) being an urban property situated in Shivalli Village cannot be a ‘land’ within the meaning of Section 2A(18) of the Act. Further, the case projected by the Form No.7 applicant shows that there was no written document evidencing the ‘chalgeni’ tenant relationship between the applicant and the appellant-Mutt. The only document produced during enquiry before the Land Tribunal are the house property tax paid receipts by the respondent No.1-Smt.Yashoda for Door No.8-3-48 of Udupi Town Municipality (one dated 16.01.1992,    13.10.1998,   31.10.2000,   etc.). The </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">documents produced by respondent No.1 and factum of grant of only 7½ cents of land (3267 square feet) clearly shows that what was held by late Anantha Bhatta was a house tenancy with appurtenant land.</b></p><p><b>18. The Land Reforms Act, 1961 is undoubtedly a beneficial legislation. It is important to remember that this piece of legislation is meant to preserve, protect and also confer benefits on persons who are able to clearly establish the factum of agrarian relationship as tenant in respect of the land, for which Form No.7 is filed by them to register them as occupants. Such a legislation should not be allowed to be used as a tool for aggrandizing undeserving persons by showing them as tenants in respect of the lands. In this case, it is necessary to notice that the alleged landlord is a Mutt, which is a religious and charitable institution. Lands are endowed upon such institutions by devotees in the hope that by using the usufructs and other benefits derived out of the land the Mutt could be run and it could promote the religious and charitable   activities. In a similar case (SRI ANJANEYASWAMY TEMPLE, THINDLU, BANGALORE </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">vs. STATE OF KARNATAKA AND OTHERS reported in 2006 (3) KLJ 513), a learned Single Judge of this Court has observed as follows:</b></p><p><b><i>“17. This Court has to notice one essential feature that arises in such matters. It is no doubt true that the agrarian reform is a welcome measure. But, in the said process, the religious institutions, to which lands have been otherwise provided by devotees, are not to be deprived of their lands unless a very strong case is made out by an applicant seeking occupancy rights thereof. Lands are provided to the temples or Mutts by the devotees for the temple/Mutt activities. If there is a real tenancy, such tenancy has to be respected given to a rightful tenant in the light of agrarian laws. But, a doubtful tenant cannot get temple lands on the ground of agrarian reforms. Authorities and Courts are to be careful in evaluating the merits for the purpose of granting temple lands. Bearing this in mind, let me see as to whether petitioner has made out a case for my interference.”</i></b></p><p><b>19. In another case (SRI ADMAR MUTT, UDUPI AND ANOTHER vs. RAMA SHETTY (DEAD) BY L.RS. AND OTHERS reported in 2006 (4) KLJ 258), the learned Single Judge has observed as follows:</b></p><p><b><i>“15. This Court also has to add a word of caution. The land Tribunal has to be careful in considering the claim made against the Mutt and other religious institutions in the light of the land reform laws. Bona fide tiller has to be granted occupancy rights in the light of the laudable object of the Land Reforms Act. But at the same time land reforms laws cannot be made use of by a litigant without there being any material to show tenancy in terms of the laws governing such tenancy rights resulting in the Mutt being deprived of its lard provided by devotees of the Mutt. Insofar as the Mutt/temple lands are concerned, the Tribunal has to be extremely careful in seeing as to whether the tenants were bona fide tenants and that the tenancy is created by those persons who have right to do so in the matter as otherwise, lands granted by the devotees or the believers of that Mutt or temple are lost.”</i></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">We respectfully concur with the views expressed in the above two decisions.</b><br></p><p><b>21. In that view of the matter, this appeal deserves to be allowed and it is accordingly allowed. Consequently, the order of the learned Single Judge impugned herein is set aside. As a further consequence thereof, order of the Tribunal (Annexure-A) is also quashed and Form No.7 - application stands rejected.</b></p><p><b>No order as to costs.</b></p><div><br></div>', 'dc8d2e5e7027075bd8d277b150d0e7cd.JPG', '45e159bfe37a92557afc2c483b858a82.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-03', 1, '', '', '2022-01-03 23:30:23', '2022-01-03 23:33:52'),
(1258, 'FNAwyPqPbPNVpbH2JDaOvZPL5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Election Law. Court should not entertain proceedings which has the effect of interfering with election process. However, it can always entertain the proceedings which accelerate the election process. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Rashida Begum vs The Karnataka State Election Commission and others<br>Writ Petition 202550 of 2021 decided on 22 December 2021.<br></span></p><p><b>The petitioner is an aspirant for contesting the election from Ward No.19 of Maski Town Municipal Council from the Indian National Congress Party (for short `INC\'). The petitioner has filed the nomination from the INC on 15.12.2021. Another candidate who is contesting the same election, making certain allegations against the petitioner herein has filed a complaint before respondent No.3 with a prayer to reject the nomination of the petitioner. Pursuant to the same, by making a summary enquiry, respondent No.3 has rejected the nomination of the petitioner. Aggrieved by the same, the petitioner has preferred the instant writ petition.</b></p><p><b>13. The High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and supplementary powers. Unless expressly or impliedly barred and subject to the appellate or discretionary jurisdiction of Supreme Court, the High Courts have unlimited jurisdiction including the jurisdiction to determine their own powers. The jurisdiction of courts is carved out of sovereign power of the State. People of free India are the sovereign and the exercise of judicial power is articulated in the provisions of the Constitution to be exercised by courts under the Constitution and the laws thereunder. It cannot be confined to the provisions of statutes. Access to court which is an important right vested in every citizen implies the existence of the power&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the Court to render justice according to law. Where Statute is silent and judicial intervention is required, Courts strive to redress grievances according to what is perceived to be principles of justice, equity and good conscience. The power of judicial review is a basic structure of Constitution. However, having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted. In conformity with this principle, the scheme of the election law in this country is that no significance should be attached to anything which does not affect the election; and if any irregularities are committed while it is in progress and they belong to the category or class which under the law by which elections are governed, would have the effect of vitiating the election and enable&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress.</b></p><p><b>14. Thus, courts should not entertain proceedings which has the effect of interfering with the progress of election. However, they can always entertain the proceedings which accelerate the completion of the election and acts in furtherance of an election. When entertaining any lis, the above propositions will have to be kept in mind.</b></p><p><b>22. Further, as per Section 23(1)(c) of the Karnataka Municipalities Act, one of the grounds for elections to be void is that any nomination paper has been improperly rejected. If the petitioner is aggrieved by the action of respondent No.3, she has an alternative efficacious remedy under the provisions of Section 23(1)(c) of the Karnataka Municipalities Act read with Section 21 of the said Act.</b></p><p><b>For the aforementioned reasons, the writ petition is hereby dismissed. No order as to costs.</b></p>', 'd418a5c774935bcfd945609fb43cd683.jpg', 'd54e65033d35a2fc1d13f0a4b168e2c6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-03', 1, '', '', '2022-01-04 02:17:53', '2022-01-04 02:17:53'),
(1259, 'PCknJF2qDSrirhFUrOn23JVRL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Proceedings under Protection of Women from Domestic Violence Act, 2005 are NOT maintainable against relatives who did not live with or shared household with the complainant. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Mareppa and others vs Pushapanjali&nbsp;<br></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Criminal Petition 200009 of 2021<br></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">This petition is filed under Section 482 of Cr.P.C. praying this Court to quash the complaint filed by the complainant/respondent in Crl.Misc.No.1716/2020 for the offences punishable under Sections 12, 18(A)(f), 19(F), 22 of the Protection of Women from Domestic Violence Act, 2005 (for short `DV Act\') on the file of II Additional Civil Judge and JMFC, Kalaburagi summoning the petitioners&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></b></p><p><b>14.<span style=\"white-space:pre\">	</span>The main contention of the petitioners before this Court is that the complaint is not maintainable against them and they are not the members of the family and they are the uncle and married sister. Having perused the complaint, it is stated that under the undue influence and under the control of his sister more particularly petitioner No.5 who is an unmarried and the second petitioner who is a paternal uncle and petitioner Nos.3 and 5 who are also exercising the control over the respondent, all of them supported to instigate the respondent with an intention to extract additional dowry and also earning form the complainant as the complainant is in employment and her husband is un-employed. It is also the allegation that the petitioners started ill-treating the complainant by abusing her in a filthy language and demanded to bring additional dowry of Rs.5 lakh and first petitioner even snatched the debit card under the influence of other petitioners and took away all the money from her savings account. The allegation in the complaint that under the instigation of the other petitioners abused and assaulted the complainant. It is also stated in the complaint that the respondent herein has filed MC No.131/2020 wherein the first respondent i.e., the husband was served and when the matter was listed on 30.08.2020, the husband came to Kalaburagi to appear in the said case and at that time, her husband,petitioner Nos.2, 3 and 4 came to her house and abused her in a filthy language and threatened to withdraw the above said petition. The husband and these petitioners again came to the house of the complainant on 08.09.2020 when the case was listed before the Trial Court, again abused and assaulted and have created ruckus in the house of the complainant on 08.09.2020. The first petitioner has telephonically instructed to deal sternly with this respondent and hence, the respondent-complainant has filed the complaint before the Mahila Police Station at Kalaburagi regarding ill-treatment made by the petitioners/respondents.</b></p><p><b>16.<span style=\"white-space:pre\">	</span>Having taken note of this averment with regard to assault and abuse made to her and also instigated the husband of the respondent and it is an admitted fact that the complaint was given to the Mahila Police station on 04.09.2020 and when such complaint was given with regard to the assault and abuse implicating these petitioners in the petition filed under section 12 of the DV Act and seeking the relief of protection, assistance and separate residence against these petitioners does not arise. No doubt, the definition of `domestic relationship\' is defined under Section 2(f) which means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. But the complaint filed by the respondent does not discloses that&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">they are living together as a joint family and admittedly the petitioner No.1 is an uncle of her husband and other petitioners are the sister-in-law and brother-in-law and they are married sisters and other petitioner is also the sister-in-law who is unmarried but she is residing at Raichur as contended by the petitioners herein and not living along with the respondent\'s husband.</b></p><p><b>17.<span style=\"white-space:pre\">	</span>It is also pertinent to note that no doubt while filing the complaint they arrayed as respondents, the Court has to take note of meaning of “respondent” as defined under Section 2(q) of the DV Act referred supra and further provision says that living in a relationship in the nature of a marriage may also file a complaint against the relative of the husband or the male partner. I&nbsp; have pointed out that they are not living together and the question of relief sought for protection order and also for the monetary benefit does not arise. I have already pointed out that they are not enjoying any joint family property and they are not living along with the respondent&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and her husband. Hence, there is a force in the contention of the petitioners\' counsel that the Court has to take note of the relief prayed in the petition. If such relief cannot be granted against these petitioners, there cannot be any petition under DV Act against these petitioners. Except the allegation that at the instigation of these petitioners, the husband is causing domestic violence, no other allegations are made. In respect of the abuse and assault, already a complaint was filed before the police and when such being the facts and circumstances, I am of the opinion that these petitioners cannot be arrayed as respondents. This Court also in the judgment referred supra reported in 2019(3) KLJ 722 held that in the similar set of facts, when the allegations are in general nature and where an omnibus allegations are made stating that these petitioners instigated her husband to demand more dowry and other allegations are also made exercised the power under Section 482 of Cr.P.C. Hence, the factual aspects of the judgment referred supra is also applicable to the facts of the case on hand. Hence, I am of the opinion that the petitioners have made out the ground to allow the petition.&nbsp;</b></p><p><b>The proceedings initiated against these petitioners are hereby quashed</b></p><div><br></div>', 'd5dfc2c603603f0a7db130373621fe2c.jpg', '08481ea38bb7fd3518a75078e2f0c9f9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-03', 1, '', '', '2022-01-04 02:55:08', '2022-01-04 02:55:08'),
(1260, 'EsaZhCYufeo1luVHSvWSs26AP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act, 1996. Disqualification under Section 12(5) applies even to pending proceedings commenced under agreements entered prior to 2015 amendment. Supreme Court reiterates..  ', '<p><b>Ellora Paper Mills Limited vs The State of Madhya Pradesh<br>Civil Appeal 7697 of 2021 decided on 4 January 2021<br>Justice M.R. Shah and Justice B.V. Nagarathna&nbsp;<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/24277/24277_2021_42_1502_32307_Judgement_04-Jan-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/24277/24277_2021_42_1502_32307_Judgement_04-Jan-2022.pdf</a></span></b></p><p><b>5. We have heard the learned counsel for the respective parties at\r\nlength. Having heard learned counsel for the respective parties and on\r\nconsidering the impugned judgment and order passed by the High Court,\r\nthe short question which is posed for consideration of this Court is,\r\nwhether, the Stationery Purchase Committee – Arbitral Tribunal\r\nconsisting of the officers of the respondent has lost the mandate,\r\nconsidering Section 12(5) read with Seventh Schedule of the Arbitration\r\nAct, 1996. If the answer is in the affirmative, in that case, whether a\r\nfresh arbitrator has to be appointed as per the Arbitration Act, 1996?</b></p><p><b>8. An identical question came to be considered by this Court in the\r\ncase of Jaipur Zila Dugdh Utpadak Sahkari Sangh Limited (supra), and\r\nafter considering the decisions of this Court in the case of TRF (supra)\r\nand other decisions on the point, in paragraphs 13, 14 and 15, it is\r\nobserved and held as under:&nbsp;<br></b></p><p><b><i>“13. So far as the submission on behalf of the petitioners that the\r\nagreement was prior to the insertion of Sub-section (5) of Section 12 read\r\nwith Seventh Schedule to the Act and therefore the disqualification under\r\nSub-section (5) of Section 12 read with Seventh Schedule to the Act shall\r\nnot be applicable and that once an arbitrator - Chairman started the&nbsp;arbitration proceedings thereafter the High Court is not justified in\r\nappointing an arbitrator are concerned the aforesaid has no substance\r\nand can to be accepted in view of the decision of this Court in Trf\r\nLtd. v. Energo Engineering Projects Ltd., (2017) 8 SCC 377; Bharat\r\nBroadband Network Limited v. United Telecoms Limited, (2019) 5 SCC\r\n755; Voestalpine Schienen GMBH v. Delhi Metro Rail Corporation\r\nLimited, (2017) 4 SCC 665. In the aforesaid decisions this Court had an\r\noccasion to consider in detail the object and purpose of insertion of\r\nSubsection (5) of Section 12 read with Seventh Schedule to the Act. In the\r\ncase of Voestalpine Schienen GMBH (Supra) it is observed and held by\r\nthis Court that the main purpose for amending the provision was to provide\r\nfor ‘neutrality of arbitrators’. It is further observed that in order to achieve\r\nthis, Sub-section (5) of Section 12 lays down that notwithstanding any\r\nprior agreement to the contrary, any person whose relationship with the\r\nparties or counsel or the subject-matter of the dispute falls under any of\r\nthe categories specified in the Seventh Schedule, he shall be ineligible to\r\nbe appointed as an arbitrator. It is further observed that in such an\r\neventuality i.e. when the arbitration clause finds foul with the amended\r\nprovisions (Sub-section (5) of Section 12 read with Seventh Schedule) the\r\nappointment of an arbitrator would be beyond pale of the arbitration\r\nagreement, empowering the court to appoint such arbitrator as may be\r\npermissible. It is further observed that, that would be the effect of non\r\nobstante clause contained in sub-section (5) of Section 12 and the other\r\nparty cannot insist on appointment of the arbitrator in terms of the\r\narbitration agreement.</i></b></p><p><b>9. In view of the above and for the reasons stated hereinabove, the\r\nimpugned judgment and order passed by the High Court is contrary to\r\nthe law laid down by this Court in the cases of TRF (supra), Bharat\r\nBroadband Network Limited (supra) and the recent decision of this Court\r\nin the case of Jaipur Zila Dugdh Utpadak Sahkari Sangh Limited (supra).\r\nIt is held that the earlier Arbitral Tribunal – Stationery Purchase\r\nCommittee comprising of Additional Secretary, Department of Revenue\r\nas President and (i) Deputy Secretary, Department of Revenue, (ii)\r\nDeputy Secretary, General Administration Department, (iii) Deputy\r\nSecretary, Department of Finance, (iv) Deputy Secretary/Under\r\nSecretary, General Administration Department and (v) Senior Deputy\r\nController of Head Office, Printing as Members, has lost its mandate by\r\noperation of law in view of Section 12(5) read with Seventh Schedule\r\nand a fresh arbitrator has to be appointed under the provisions of the\r\nArbitration Act, 1996. The impugned judgment and order passed by the\r\nHigh Court is therefore unsustainable and deserves to be quashed and\r\nset aside.<br></b></p><p><b>12. The present appeal is accordingly allowed. However, in the facts\r\nand circumstances of the case, there shall be no order as to costs.<br></b></p><p><br></p>', '47bfe6f8edf962b0c72a356de20a8b98.jpeg', '2adbf883a5d7f9b2d6815a60455b3718.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-04', 1, '', '', '2022-01-05 02:27:30', '2022-01-05 02:27:30'),
(1261, 'mfq4uQer1wB9zD1xBFpKWOpII', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. A delinquent has no right to be represented through counsel or agent unless the law specifically confers such a right. Supreme Court reiterates. ', '<p><b>The&nbsp;Rajasthan&nbsp;Marudhara&nbsp;Gramin&nbsp;Bank &amp;&nbsp;anr.\r\nvs Ramesh&nbsp;Chandra&nbsp;Meena&nbsp;&amp;&nbsp;anr.<br>Civil Appeal 7451&nbsp;of&nbsp;2021 decided on 4 January 2021<br>Justice M.R. Shah and Justice Sanjiv Khanna&nbsp;</b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/21627/21627_2021_42_1501_32307_Judgement_04-Jan-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/21627/21627_2021_42_1501_32307_Judgement_04-Jan-2022.pdf</a></b></p><p><b><br></b></p><p><b>In the case of&nbsp; Crescent&nbsp; Dyes&nbsp; &nbsp;and&nbsp; Chemicals&nbsp; Ltd.</b></p><p><b>(supra),&nbsp; &nbsp;it&nbsp; &nbsp;is&nbsp; &nbsp;observed&nbsp; &nbsp;and&nbsp; &nbsp;held&nbsp; &nbsp;that&nbsp; &nbsp;in&nbsp; &nbsp;the</b></p><p><b>departmental&nbsp; &nbsp;proceedings&nbsp; &nbsp;right&nbsp; &nbsp;to&nbsp; &nbsp;be&nbsp; &nbsp;represented</b></p><p><b>through counsel or agent can be restricted, controlled</b></p><p><b>or regulated by statute, rules, regulations or Standing</b></p><p><b>Orders. A delinquent has no right to be represented</b></p><p><b>through counsel or agent unless the law specifically</b></p><p><b>confers such a right. The requirement of the rule of</b></p><p><b>natural&nbsp; &nbsp;justice&nbsp; &nbsp;insofar&nbsp; &nbsp;as&nbsp; &nbsp;the&nbsp; &nbsp;delinquent\'s&nbsp; &nbsp;right&nbsp; &nbsp;of</b></p><p><b>hearing is concerned, cannot and does not extend to a</b></p><p><b>right to be represented through counsel or agent. In</b></p><p><b>the case before this Court, the delinquent\'s right to</b></p><p><b>representation was regulated by the Standing Orders</b></p><p><b>which permitted a clerk or a workman working with</b></p><p><b>him in the same department to represent him and</b></p><p><b>said right stood expanded permitting representation</b></p><p><b>through an officer, staff­member or a member of the</b></p><p><b>Union, on being authorised by the State Government.</b></p><p><b>Holding that the same is permissible and cannot be</b></p><p><b>said to be in violation of principles of natural justice, it is observed that the object and purpose of such</b></p><p><b>provisions are to ensure that the domestic enquiry is</b></p><p><b>completed&nbsp; &nbsp;with&nbsp; &nbsp;despatch&nbsp; &nbsp;and&nbsp; &nbsp;is&nbsp; &nbsp;not&nbsp; &nbsp;prolonged</b></p><p><b>endlessly; secondly, when the person defending the</b></p><p><b>delinquent is from the department or establishment in</b></p><p><b>which&nbsp; the delinquent&nbsp; is working he would&nbsp; be well</b></p><p><b>conversant with the working of that department and</b></p><p><b>the relevant rules and would, therefore, be able to</b></p><p><b>render satisfactory service to the delinquent. In the</b></p><p><b>present&nbsp; &nbsp;case&nbsp; &nbsp;also&nbsp; &nbsp;clause&nbsp; &nbsp;8&nbsp; &nbsp;permits&nbsp; &nbsp;representation</b></p><p><b>through serving officials / employee from the Bank.</b></p><p><b>6.5. A similar view has been expressed by this Court in</b></p><p><b>the case of Bharat Petroleum&nbsp; Corporation&nbsp; Limited</b></p><p><b>(supra)&nbsp; &nbsp;as&nbsp; &nbsp;well&nbsp; &nbsp;as&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;case&nbsp; &nbsp;of&nbsp; National&nbsp; &nbsp;Sees</b></p><p><b>Corporation Limited (supra).</b></p><p><b>6.6. In the case of&nbsp; Indian&nbsp; Overseas&nbsp; &nbsp;Bank&nbsp; (supra), it is</b></p><p><b>observed&nbsp; &nbsp;and&nbsp; &nbsp;held&nbsp; &nbsp;that&nbsp; &nbsp;law&nbsp; &nbsp;does&nbsp; &nbsp;not&nbsp; &nbsp;concede&nbsp; &nbsp;an</b></p><p><b>absolute&nbsp; &nbsp;right&nbsp; of&nbsp; representation&nbsp; to&nbsp; &nbsp;an&nbsp; employee&nbsp; in</b></p><p><b>domestic enquiries as part of his right to be heard.</b></p><p><b>Applying law laid down by this Court in the aforesaid</b></p><p><b>decisions&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;facts&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;case&nbsp; &nbsp;on&nbsp; &nbsp;hand,&nbsp; &nbsp;the</b></p><p><b>respondent employee / respondent delinquent has no</b></p><p><b>absolute right to avail the services by ex­employee of</b></p><p><b>the Bank as his DR in the departmental proceedings.</b></p><p><b>It is true that Regulation 44 puts specific restriction</b></p><p><b>on engagement of a legal practitioner and it provides</b></p><p><b>that for the purpose of an enquiry under Regulation,</b></p><p><b>2010, the Officer or Employee shall not engage a legal</b></p><p><b>practitioner&nbsp; &nbsp;without&nbsp; &nbsp;prior&nbsp; &nbsp;permission&nbsp; &nbsp;of&nbsp; &nbsp;the</b></p><p><b>competent&nbsp; &nbsp;authority.&nbsp; &nbsp;Therefore,&nbsp; &nbsp;even&nbsp; &nbsp;availing&nbsp; &nbsp;the</b></p><p><b>services of legal practitioner is permissible with the</b></p><p><b>leave of the competent authority. However, Regulation</b></p><p><b>does not specifically provides that an employee can</b></p><p><b>avail&nbsp; &nbsp;the&nbsp; &nbsp;services&nbsp; &nbsp;of&nbsp; &nbsp;any&nbsp; &nbsp;outsider&nbsp; &nbsp;and&nbsp; &nbsp;/&nbsp; &nbsp;or&nbsp; &nbsp;exemployee of the Bank as DR. Therefore, Regulation,</b></p><p><b><br></b></p><p><b>In view of the above and for the reasons stated above,</b></p><p><b>the High Court has committed an error in permitting</b></p><p><b>respondent delinquent officer to be represented in the</b></p><p><b>departmental&nbsp; &nbsp;enquiry&nbsp; &nbsp;through&nbsp; &nbsp;ex­employee&nbsp; &nbsp;of&nbsp; &nbsp;the</b></p><p><b>Bank. The view taken by the learned Single Judge</b></p><p><b>confirmed by the Division Bench is unsustainable.</b></p><p><b>Accordingly,&nbsp; &nbsp;present&nbsp; &nbsp;appeal&nbsp; &nbsp;is&nbsp; &nbsp;allowed&nbsp; &nbsp;and&nbsp; &nbsp;the</b></p><p><b>impugned judgment and order passed by the learned</b></p><p><b>Single&nbsp; &nbsp;Judge&nbsp; &nbsp;confirmed&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;Division&nbsp; &nbsp;Bench</b></p><p><b>permitting&nbsp; &nbsp;the&nbsp; &nbsp;respondent&nbsp; &nbsp;delinquent&nbsp; &nbsp;officer&nbsp; &nbsp;to&nbsp; &nbsp;be</b></p><p><b>represented in the departmental proceedings through</b></p><p><b>ex­employee of the Bank is hereby quashed and set</b></p><p><b>aside. Present appeal is accordingly allowed.</b></p>', 'ef46a900fcb32c414ae40f7a71c6e180.jpg', '157f07858ad7e8fafb02111523c37a95.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-04', 1, '', '', '2022-01-05 02:48:43', '2022-01-05 02:48:43'),
(1262, 'h1hNhFVIvPn4azInulF1geF8H', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prevention of Money Laundering Act. Jammu and Kashmir cannot be a \'\'Money Laundering Haven\'\' especially after the Indian Penal Code is made applicable to the province. Karnataka High Court.', '<p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Anish Mohammed Rawther vs The Deputy Director Enforcement Directorate</b><br></p><p><b>Writ Petition 20092 of 2021 decided on 3 January 2021</b></p><p><b>Petitioners are knocking at the doors&nbsp; of&nbsp; Writ&nbsp; Court for laying a challenge to the proceedings&nbsp; taken&nbsp; up&nbsp; under the provisions of Prevention of Money Laundering&nbsp; Act,&nbsp; 2002 (\'Act\' for short) and to the Provisional Attachment Order dated 28.9.2021 made by the respondent at Annexure-A; after service of notice, the respondent having</b></p><p><b>(i) The Parliament enacted and structured the PML&nbsp; Act to implement Political Declaration and Global Programme of Action adopted by the UN General Assembly at its 17th Special Session in 1990 and the Political Declaration adopted by Special Session of UN General Assembly in 1998 asking the member States&nbsp; to&nbsp; evolve&nbsp; policy framework and programmes to prevent money- laundering;&nbsp;</b></p><p><b>(ii) Under our constitutional scheme, the power to legislate in respect of matters concerning International Conventions &amp; Conferences is exclusively vested with the Parliament vide Article 253 which reads as under:</b></p><p><b><i>\"253. Legislation for giving effect to international agreements Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of&nbsp; the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.\"</i></b></p><p><b>(i) The argument of Mr.Javali that the Act&nbsp; does&nbsp; not,&nbsp; in so many words, refer to RPC, 1989,&nbsp; is true; in the realm&nbsp; of law, what is said is important and at times, what is left unsaid is even more important; the fact that nothing in the Act mentions about RPC, 1989 per se cannot drive one to hastily conclude that the offences thereunder are&nbsp; alien&nbsp; to the principal object and policy content of the Act;&nbsp; it&nbsp; has been a&nbsp; settled&nbsp; legal position that when there is vagueness&nbsp; or doubt statutes enacted for giving effect to the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">International Conventions &amp; Conferences should be construed in the light of and in conformity with them vide State of WB Vs. Kesoram Industries Ltd, AIR 2005 SC 1646; sub-section (2) of section 1 of the Act reads \"It extends to the whole of India.\"; thus, keeping the RPC offences away from the Act would offend the very parliamentary intent of extending this Act \"to the whole of India\", when many central legislations specifically excluded their application to the State of J&amp;K because of its special status; however that is not the case with this Act; it would bewilder any legally trained&nbsp; mind&nbsp; that&nbsp; only&nbsp; one&nbsp; province in the country should be singularly reserved as a \'Money Laundering Haven\', eventually there being no policy framework for preventing in such a province, the sin of money laundering to which the&nbsp; world&nbsp; at&nbsp; large&nbsp; is&nbsp; committed by International Conventions, Conferences &amp; Treaties.</b></p><p><b>There is one more aspect, advertence to which would put the controversy to rest, once for all, as rightly pointed out by learned Sr. Panel Counsel for the ED: the Parliament has enacted the Jammu and Kashmir Reorganization Act, 2019 w.e.f. 9.8.2019; section 95 r/w Item 48, Table-1 in the Fifth Schedule to this Act omits the phrase “except the State of Jammu and Kashmir” from section 1 of Indian Penal Code, 1860; thus, the application of IPC is extended to the State of Jammu &amp; Kashmir; the Enforcement Case Information Report vide No.ECIR/BGZO/02/2020 has&nbsp; been&nbsp; registered&nbsp; on 02.01.2020, as pleaded in the petition and appearing from the records; apparently this is post new enactment; therefore, the question raised and argued by the petitioners in the case at hands is answered by this legislative development; the Writ Petition has been structured sans advertence to this new development.</b></p><p><b>In the above circumstances, no other question having been argued, the Writ Petition is liable to be dismissed and accordingly it is.</b></p>', '49b18479f5c9c7b72ac4e4dd2de9a751.jpg', '1d35e2540777aac4366266339a7a6d42.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-04', 1, '', '', '2022-01-05 03:26:21', '2022-01-05 03:26:21');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1263, 'b1sn89on0BLV0YXf9f381h3Zl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bar against transfer of land granted to SC/ST applies even to a transfer in favour of SC/ST person hailing from another State. Supreme Court. ', '<p><b>Bhadar Ram by lrs vs Jassa Ram and others.&nbsp;<br>Civil Appeal No. 5933 of 2021&nbsp;decided on 5 January 2022.<br>Justice M.&nbsp;R.&nbsp;Shah and Justice A.S.&nbsp;Bopanna,&nbsp;<br>Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2011/24194/24194_2011_42_1501_32325_Judgement_05-Jan-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2011/24194/24194_2011_42_1501_32325_Judgement_05-Jan-2022.pdf</a></b></p><p><b>[5.0] ......The short question, which is posed for the consideration of this Court is, Whether the land transaction in favour of the appellant ­ original defendant was illegal and in violation of Section 42 of the Rajasthan Tenancy Act, 1955 and Section 13 of the Rajasthan Colonization Act, 1954 being a person belonging to Scheduled Caste of State of Punjab?</b></p><p><b>‘Ordinarily&nbsp; Resident’&nbsp; has been defined under the Representation&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; People&nbsp; &nbsp;Act,&nbsp; 1950.&nbsp; &nbsp;As per Section 20(1) of the Representation of the People Act, 1950, ‘ordinarily resident’ means a person shall not be deemed to be ordinarily resident in a constituency on the ground only that he owns, or is in possession of, a dwelling house therein.&nbsp; Considering the documentary evidences referred to hereinabove, it cannot be said that the appellant – original defendant is an ordinarily /permanent resident of State of Rajasthan.</b></p><p><b>[7] Now whether the sale transaction in favour of the appellant ­ original defendant can be said to be in violation of Section 42 of the Rajasthan Tenancy Act, 1955 is concerned, it is to be noted that as per Section 42 of the Rajasthan Tenancy Act, 1955, there is a restriction on sale, gift or bequest by a member of Scheduled Caste in favour of a person, who is not a member&nbsp; &nbsp;of&nbsp; &nbsp;Scheduled&nbsp; &nbsp;Caste.&nbsp; &nbsp; &nbsp;Looking&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;object&nbsp; &nbsp;and purpose&nbsp; of&nbsp; such&nbsp; a&nbsp; provision,&nbsp; it&nbsp; can&nbsp; be&nbsp; said&nbsp; that&nbsp; the&nbsp; said provision&nbsp; &nbsp;is&nbsp; &nbsp;to&nbsp; &nbsp;protect&nbsp; &nbsp;a&nbsp; &nbsp;member&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Scheduled&nbsp; &nbsp;Caste belonging to the very State he belongs i.e., in the present case the State of Rajasthan.&nbsp; &nbsp;Being a Scheduled Caste in the State of&nbsp; &nbsp;Punjab&nbsp; &nbsp;whether&nbsp; &nbsp;the&nbsp; &nbsp;sale&nbsp; &nbsp;transaction&nbsp; &nbsp;in&nbsp; &nbsp;favour&nbsp; &nbsp;of&nbsp; &nbsp;the appellant ­ original defendant could have been saved from the bar under Section 42 of the Rajasthan Tenancy Act, 1955&nbsp;</b></p><p><b>[7.1] In the case of Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the&nbsp; &nbsp;State&nbsp; &nbsp;of&nbsp; &nbsp;Maharashtra&nbsp; &nbsp;and&nbsp; &nbsp;Another&nbsp; &nbsp;(supra)&nbsp; after considering the decision of this Court in the case of&nbsp; Marri Chandra Shekar Rao (supra) the question arose, Whether a person belonging to caste or tribe specified for the purpose of Constitution to be Scheduled Caste or a Scheduled Tribe in relation to State A migrates to State B, where a caste or tribe with the same nomenclature is specified for the purposes of Constitution to be a Scheduled Caste or Scheduled Tribe in relation to that State B, will that person be entitled to claim the privileges and benefits admissible to persons belonging to Scheduled Caste and /or Scheduled Tribe in State B?&nbsp; Holding that a person belonging to Scheduled Caste /Scheduled Tribe in relation to his original State of which he is permanent or an ordinarily resident cannot be deemed to be so in relation to any other State on his migration to that State for the purpose of employment, education etc.&nbsp;</b></p><p><b>[8] The&nbsp; &nbsp;decision&nbsp; &nbsp;of&nbsp; &nbsp;this&nbsp; &nbsp;Court&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;case&nbsp; &nbsp;of&nbsp; &nbsp;Action Committee&nbsp; &nbsp;on&nbsp; &nbsp;Issue&nbsp; &nbsp;of&nbsp; &nbsp;Caste&nbsp; &nbsp;Certificate&nbsp; &nbsp;to&nbsp; &nbsp;Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Another (supra) shall be applicable with full force to the facts of the present case also.&nbsp; The submission on behalf of the appellant ­ original defendant that the said decision shall not be applicable to the facts of the case on hand as in that case the&nbsp; &nbsp;Court&nbsp; &nbsp;was&nbsp; &nbsp;considering&nbsp; &nbsp;the&nbsp; &nbsp;issue&nbsp; &nbsp;with&nbsp; &nbsp;respect&nbsp; &nbsp;to employment, education and in the present case dispute is with respect to sale /sale of property has no substance and cannot be accepted.&nbsp; The reasoning given by this Court in the case of Action&nbsp; &nbsp;Committee&nbsp; &nbsp;on&nbsp; &nbsp;Issue&nbsp; &nbsp;of&nbsp; &nbsp;Caste&nbsp; &nbsp;Certificate&nbsp; &nbsp;to Scheduled&nbsp; Castes&nbsp; and&nbsp; Scheduled&nbsp; Tribes&nbsp; &nbsp;in&nbsp; the&nbsp; State&nbsp; of Maharashtra and Another (supra) are on interpretation and on a plain reading of Clause I of Articles 341 and 342 of the Constitution of India, which are referred to hereinabove.&nbsp; We see no reason to restrict the applicability of the decision of this Court in the case of&nbsp; Action&nbsp; Committee&nbsp; on&nbsp; &nbsp;Issue&nbsp; of&nbsp; Caste Certificate to Scheduled Castes and Scheduled Tribes in the&nbsp; State&nbsp; of&nbsp; Maharashtra&nbsp; and&nbsp; Another&nbsp; (supra)&nbsp; only with respect to employment, education or the like and not to make applicable the same with respect to purchase and sale of the property in case of sale and purchase of the land belonging to a Scheduled Caste person in the State of Rajasthan and when the said land was allotted to the original land owner – Chunilal as Scheduled Caste&nbsp; landless person.</b></p><p><b>[12] In&nbsp; &nbsp;view&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;above&nbsp; &nbsp;and&nbsp; &nbsp;for&nbsp; &nbsp;the&nbsp; &nbsp;reasons&nbsp; &nbsp;stated hereinabove, the land transaction in favour of the appellant ­ original&nbsp; &nbsp;defendant&nbsp; &nbsp;was&nbsp; &nbsp;in&nbsp; &nbsp;breach&nbsp; &nbsp;of&nbsp; &nbsp;Section&nbsp; &nbsp;13&nbsp; &nbsp;of&nbsp; &nbsp;the Rajasthan&nbsp; &nbsp;Colonization&nbsp; &nbsp;Act,&nbsp; &nbsp;1954&nbsp; &nbsp;and&nbsp; &nbsp;Section&nbsp; &nbsp;42&nbsp; &nbsp;of&nbsp; &nbsp;the Rajasthan Tenancy Act, 1955, which is rightly held to be void by the Division Bench of the High Court.&nbsp;&nbsp;</b></p>', '0fc250bfa912ed3b23d5061c91fa8cf1.JPG', '4a9d1d5b0a792b19b35e7f7019b10bde.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-05', 1, '', '', '2022-01-06 02:23:35', '2022-01-06 02:23:35'),
(1264, '1PbTeaiwW0yDmnSm0HlFWsUvY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Taxation is not merely a source of revenue but is also a tool to achieve fiscal and social objective\'\'. Karnataka High Court while upholding National Calamity Contingent Duty.  ', '<p><span style=\"font-weight: bolder;\">M/s.V.S.Products vs Union of India and another&nbsp;<br></span><b>Writ Petition 52371 of 2019 decided on 4 January 2022<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br>1. The petitioners are stated to be manufacturers of Tobacco and Tobacco products and are registered in terms of Rule 9 of the Central Excise Registration Rules, 2002 (“the Rules, 2002” for short). Subsequent to coming into force of the Goods and Services Tax (“GST” for short) regime, the petitioners have registered themselves under Rule 10 (1) of the Central Goods and Services Tax Rules, 2017&nbsp;</b><b><br></b></p><p><b>The only bar under Article 271 is that the surcharge contemplated excludes the surcharge as regards the Goods and Services Tax under Article 246A. In the present case, the surcharge is by way of duty of excise and accordingly, cannot be construed to be a surcharge as regards Goods and Services Tax as contemplated under Article 246A. The interpretation of the petitioners that surcharge cannot be levied under Article 271 as regards those goods and services which are included under Article 246A is liable to be rejected as no such restriction could be placed on a plain reading of Article 271 which provides that surcharge could be levied at any time&nbsp; to increase duties or taxes.&nbsp; &nbsp; &nbsp; In fact, surcharge being imposed by way of the Finance Act has nothing to do with surcharge on GST that may still be levied. As levy under Article 246 is permissible even after introduction of Article 246A, the levy of surcharge tracing power under Article 271 would still subsist even if the goods are subjected to levy of goods and services tax under Article 246A.</b></p><p><b>It must be noted that the argument of the petitioner while relying on the judgment in Bajaj Auto Ltd. case has been clarified by the judgment of the Apex Court in Unicorn Industries Vs. Union of India (2020) 3 SCC 492 where Apex Court has declared the judgment in Bajaj Auto to be per incuriam. It was also held by the Apex Court that the judgment in Union of India Vs. Modi Rubber Ltd., (1986) 4 SCC 66 was not considered earlier in Bajaj Auto and in&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">S.R.D. Nutrients v. CCE (2018) 1 SCC 105. In the case of Modi Rubber it was clearly held that the exemption of Excise Duty under the Act of 1944 could not be extended to exempt the levy introduced by the Finance Act.</b></p><p><b>The Apex Court in the case of Commissioner of Urban Tax v. Buckingham &amp; Carnatic Company Ltd. Reported in (1969) 2 SCC 65 has reiterated the settled principle that selecting objects to the tax, determining the quantum of tax, legislating conditions for the levy and the socio-economic goals which a tax must achieve are matters of legislative policy and these matters have been entrusted to the Legislature and not to the Court.</b></p><p><b>It is a settled principle that the Legislature has a larger discretion in the matter of classification for the purpose of tax. The requirement however is that there is a classification and a rational nexus between such classification and the object sought to be achieved.</b></p><p><b>7. As regards such aspect at the time of oral submission, it was pointed out that the levy of NCCD was also to discourage consumption. If that were to be taken note of, the classification of tobacco and tobacco products as a separate class, keeping in mind objective of discouraging its consumption, and such classification could be stated to be based on a intelligible differentia. After having so classified the levy of NCCD which is for the purpose of discouraging consumption and relates to object associated with the levy cannot be described to be a classification without any basis.</b></p><p><b>8. It needs to be kept in mind that taxation is not merely a source of raising revenue but is also recognised by the fiscal tool to achieve fiscal and social objective.&nbsp;</b></p><p><b>9. The reliance of the petitioner on the authorities mentioned in Para 59 of the written submissions does not in any way help the petitioner insofar as the judgments lay down broad principles relating to classification. In fact, the same authorities are also often cited to contend that legislature has wide discretion in classifying items for tax purposes and that the differentia has some reasonable relation to the object of the legislation.</b></p><p><b>10. It must also be noted that the levy is also for the purpose of revenue generation and the choice of the&nbsp; category of goods for the purpose of revenue generation cannot ipso-facto be a ground of judicial review and something more is required such as hostile discrimination and singling out a particular category of goods.</b></p><p><b>11. In fact, the choice of the category of goods as in the present case may also be influenced by the objective of discouraging consumption and accordingly the choice of the category of goods for the purpose of revenue generation cannot be held to be arbitrary.</b></p><p><b>13. Further, the levy of tax is a product of legislative choice and on policy decisions which are the prerogative of the Executive and as laid down by the Apex Court in the case of VKC Footsteps (supra) the Courts are not to readily enter into adjudication on such issues.</b></p><p><b>15. In the above factual matrix, keeping in mind the guideline laid down by the Supreme Court, no case is made out for interference on the ground of the levy being hit by the law contained in Article 14.</b></p><p><b>16. In light of the above discussion, the petitions are dismissed.</b></p><div><br></div>', '25094d9ea77ecfb7665100941b4d92df.jpg', '528b10f50b67e67f5c323b54134449f8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-06', 1, '', '', '2022-01-06 23:50:49', '2022-01-06 23:50:49'),
(1265, 'DFGqAYk8G0IozxPyye0Eu9Ako', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit filed by several persons cannot be withdrawn by only one of them without the concurrence of the other plaintiffs. Karnataka High Court ', '<p><span style=\"font-weight: bolder;\">Chikkalingaiah vs Dundaiah and others&nbsp;<br></span><b>Writ Petition 43918 of 2016 decided on 17 August 2021<br></b></p><p><b><br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Whether an application under Order XXIII Rule 1 is maintainable if filed by one of the plaintiff without concurrence and or supported by the other plaintiffs?</b><b><br></b></p><p><b>10.1<span style=\"white-space:pre\">	</span>When one or more plaintiff file a particular suit, all of them would together prosecute the said suit.</b></p><p><b>10.5<span style=\"white-space:pre\">	</span>In the present matter, admittedly common plaint has been filed and the parties were represented by a common advocate.&nbsp; On this ground also, it cannot be said that the application was only filed by plaintiff No.1 and not by plaintiff Nos.2 to 4. When a suit is filed by more than one person, each of the co-plaintiffs would not get a right to engage an advocate or file a separate pleadings. There would have to be a common advocate engaged for all the plaintiffs. The plaintiffs having joined together and sued, they must act together and not separately or inconsistently.</b></p><p><b>10.6<span style=\"white-space:pre\">	</span>Such co-plaintiffs cannot be permitted to file a separate pleadings or engage&nbsp; separate advocate. If that be the case, co- plaintiffs would have to be transpose themselves as defendants or have to file a separate suit. The purpose of several persons joining as co-plaintiffs to prosecute a suit is to avoid multifarious or multiplicity of the proceedings thereof providing an opportunity for the common grievances to be adjudicated by the Court. This would also save time of the Court and enable the Court to answer common questions in a common manner in a common proceedings rather than in different proceedings.</b></p><p><b>10.7<span style=\"white-space:pre\">	</span>For the reasons stated in answer to Point No.1 as also the reasons stated above, I&nbsp; am of the considered opinion that the suit</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">having been filed on the same cause of action by different persons claiming to be the plaintiffs/co-plaintiffs, one plaintiff cannot seek to withdraw his claim with liberty to file a fresh suit. Either the suit&nbsp; had to be withdrawn in toto or not at all. There cannot be multiplicity or multifarious suit filed on the same cause of action. In view thereof, I answer Point No.2 by holding that an application under Order XXIII Rule 1 of CPC is not maintainable if filed by one of the plaintiffs without concurrence and support of the other plaintiffs.</b></p><p><b>The suit in O.S.No.9/2009 is&nbsp; restored&nbsp; to the file of Civil Judge &amp; JMFC, Yelandur. Civil Judge is directed to proceed with the matter from the stage at which said application was filed.</b></p>', '080091e9881b7ea6d988ac1153153990.jpeg', 'b4e2c026ed97750745c673dd7e6ad19e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-06', 1, '', '', '2022-01-07 03:04:04', '2022-01-07 03:04:04'),
(1266, 'O4rRPJihGRNcnouyPA9Ml1aEO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'POCSO Act. \'\'When the accused specifically denies that the victim was a minor aged under 18 years, heavy burden lies on the prosecution to prove the same\'\'. Karnataka High Court while acquitting the accused for want of minor age proof of the victim. ', '<p><span style=\"font-weight: bolder;\">Gangadhar vs The State of Karnataka <br></span><b>Criminal Appeal 2501 of 2013 decided on 23 December 2021</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">32.<span style=\"white-space:pre\">	</span>It is the specific contention of the prosecution that, the accused had committed the offence punishable under Section 366A of IPC. To attract Section 366A, the prosecution has  to  prove that the victim is under the age of 18 years and she was procured by the accused either by force or by seducing for the purpose of committing illicit intercourse. The evidence of PW.10, the Head Master  of the School where the victim said to be studying </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">discloses that he issued Ex.P.16 and 17 on the basis of the School records. During cross-examination, the witness pleads ignorance regarding the basis on which the date of birth is recorded in the school records.</b><b><br></b></p><p><b>33.<span style=\"white-space:pre\">	</span>Learned counsel for the appellant placed reliance on the decision of the Hon’ble Apex Court in Jernail Singh Vs. State of Haryana </b><span style=\"font-weight: bolder;\">(2013) 7 SCC 263</span><b>, wherein the Hon’ble Apex Court laid down the procedure for determining the age of the victim under the POCSO  Act. The Hon’ble Apex Court referred to Rule 12 of the Juvenile Justice (Care and Protection  of  Children) Rules 2007 (“Rules 2007” for short), which prescribes procedure to be followed in determination of the age   of the child in conflict with law and held in paragraph No.23, which reads as under:</b></p><p><i><b>“Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of   a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child.  In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and  conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said  certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion”</b></i></p><p><b>35.<span style=\"white-space:pre\">	</span>When the accused specifically denies that the victim was a minor aged under 18 years, heavy burden lies on the prosecution to prove the same in accordance with law. </b></p><p><b>37.<span style=\"white-space:pre\">	</span>The conduct of the victim discloses that she never resisted nor objected the act of the accused. When the prosecution failed to prove that the victim is a minor, this conduct of the victim assumes importance. When the prosecution taken a specific stand that the accused had committed an offence punishable under Section 366A of IPC, it is incumbent on the prosecution to prove that the victim was under the age of 18 years. In the absence of such proof, it cannot be said that the prosecution is successful in proving the guilt of the accused for the offence punishable under Section 366A of IPC. When there is nothing on record to conclude that the victim is minor, the conduct of the victim in not raising any objection while going along with the accused, even immediately after the incident in question, assumes  importance  and it cannot be said that the accused has committed rape on her forcibly. There is reasonable doubt arising in the mind of the Court while considering the contention of the prosecution in the matter of commission of offence by the accused.</b></p><p><b>The appeal is hereby allowed.</b></p><p><b>The impugned judgment of conviction and order of sentence dated 20.11.2012 passed in S.C.No.49/2011 on the file of the Trial Court for the offence punishable under Section 366A and 376 of IPC is hereby set aside.</b></p><p><b>Consequently, the appellant/ accused is acquitted for the  offence  punishable under Sections 366A and 376 of IPC.</b></p><div><br></div>', '03d746cd662b585def2ee5a17dc9bd70.jpg', '4cdd6e5471ff1e3f901e401dea0d4d2a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-08', 1, '', '', '2022-01-09 02:28:42', '2022-01-09 02:30:11'),
(1267, 'g6rEPp8cqtoNBgAv1g8Nsc8aj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Employees of Water and Land Management Institute which is an independent autonomous body registered under the Societies Act are NOT entitled to the pensionary benefits. Supreme Court. ', '<p><b>The State of Maharashtra &amp; anr. vs Bhagwan &amp; Ors.&nbsp;<br>Civil Appeal 7682-7684 of 2021 decided on 10 January 2022<br></b></p><p><b>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2019/43653/43653_2019_42_1502_32451_Judgement_10-Jan-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/43653/43653_2019_42_1502_32451_Judgement_10-Jan-2022.pdf</a></b></p><p><b>Justice M.R. Shah and Justice B.V. Nagarathna&nbsp;&nbsp;<br></b></p><p><b>Feeling aggrieved and dissatisfied with the impugned common\r\njudgment and order passed by the High Court of Judicature at Bombay&nbsp;dated 20.07.2018 passed in Writ Petition No.748 of 2014 and other\r\nconnected writ petitions by which the High Court has allowed the said\r\nwrit petitions and has directed the State Government to extend the\r\npensionary benefits to the employees of Water and Land Management\r\nInstitute, the State of Maharashtra and another have preferred the\r\npresent appeals. The State preferred review applications which came to\r\nbe dismissed.<br></b></p><p><b>7. The short question, which is posed for consideration of this Court\r\nis “whether the employees of the WALMI are entitled to the pensionary\r\nbenefits on par with the State Government employees?”&nbsp;</b></p><p><b>102.....As per the law laid down by this Court in a catena of decisions, the\r\nemployees of the autonomous bodies cannot claim, as a matter of right,\r\nthe same service benefits on par with the Government employees.\r\nMerely because such autonomous bodies might have adopted the\r\nGovernment Service Rules and/or in the Governing Council there may\r\nbe a representative of the Government and/or merely because such\r\ninstitution is funded by the State/Central Government, employees of\r\nsuch autonomous bodies cannot, as a matter of right, claim parity with\r\nthe State/Central Government employees. This is more particularly,\r\nwhen the employees of such autonomous bodies are governed by their\r\nown Service Rules and service conditions. The State Government and\r\nthe Autonomous Board/Body cannot be put on par.&nbsp;<br></b></p><p><b>10.4 As per the settled proposition of law, the Court should refrain from\r\ninterfering with the policy decision, which might have a cascading effect\r\nand having financial implications. Whether to grant certain benefits to\r\nthe employees or not should be left to the expert body and undertakings\r\nand the Court cannot interfere lightly. Granting of certain benefits may\r\nresult in a cascading effect having adverse financial consequences.&nbsp;<br></b></p><p><b>10.5 In the present case, WALMI being an autonomous body, registered\r\nunder the Societies Registration Act, the employees of WALMI are\r\ngoverned by their own Service Rules and conditions, which specifically\r\ndo not provide for any pensionary benefits; the Governing Council of\r\nWALMI has adopted the Maharashtra Civil Services Rules except the\r\nPension Rules. Therefore, as such a conscious policy decision has&nbsp;been taken not to adopt the Pension Rules applicable to the State\r\nGovernment employees; that the State Government has taken such a\r\npolicy decision in the year 2005 not to extend the pensionary benefits to\r\nthe employees of the aided institutes, boards, corporations etc.; and the\r\nproposal of the then Director of WALMI to extend the pensionary\r\nbenefits to the employees of WALMI has been specifically turned down\r\nby the State Government. Considering the aforesaid facts and\r\ncircumstances, the High Court is not justified in directing the State to\r\nextend the pensionary benefits to the employees of WALMI, which is an\r\nindependent autonomous entity. </b></p><p><b>11. In view of the above discussion and for the reasons stated, the\r\nimpugned common judgment and order passed by the High Court\r\ndirecting the State to extend the pensionary benefits to the employees of\r\nWALMI is unsustainable, both in law and on facts. Accordingly, the\r\nimpugned common judgment and order passed by the High Court&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">deserves to be quashed and set aside and is accordingly quashed and\r\nset aside. It is held that the employees of WALMI, which is an\r\nindependent autonomous body registered under the Societies Act are\r\nnot entitled to the pensionary benefits.\r\nAll these appeals are accordingly allowed. However, in the facts\r\nand circumstances of the case, there shall be no order as to costs.\r\nPending application(s), if any, also stands disposed of.&nbsp;</span></b></p><p><b><br></b></p><p><br></p>', '0e8497b01539e7572a87a4c414dee1f3.JPG', '5c57042c08492fbff5a63c7be8511110.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-10', 1, '', '', '2022-01-11 02:46:55', '2022-01-11 02:46:55'),
(1268, 'L8og2noOIygqXOXYHswYZKQgY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Forest Act. Plaint is liable to be rejected if prior Government sanction under Section 114(A) is not obtained before institution of suit. Karnataka High Court.', '<p><span style=\"font-weight: bolder;\">Sidramayya vs The State of Karnataka and others.<br>Regular First Appeal 200015 of 2020 decided on 24 November 2021</span></p><p><b>This Regular First Appeal is filed under Section 96 of Code of Civil Procedure by the plaintiffs being aggrieved by the judgment and decree dated 07/01/2020 passed in O.S.No.76/2015 on the file of the Prl. Senior Civil Judge and CJM, Bidar, on I.A.No.V filed by the defendant Nos.2 and 3 under Order VII Rule 11 (d) of CPC, seeking rejection of plaint on the ground of non-compliance of statutory requirement as provided under Section 114 (A) of the Karnataka Forest Act, 1963. Accepting the said application, the Trial Court by the impugned order dismissed the suit.</b></p><p><b>17.<span style=\"white-space:pre\">	</span>It is a settled principle of law that if a statute requires a thing to be done in a particular manner it should be done in that manner or not all, Nazir Ahmed V.&nbsp; Emperor AIR 1936 SC 253, which is approved and&nbsp; followed in catena of judgments of the Apex Court. In the instant case, as extracted hereinabove, Section 114-A of the Act mandates dismissal of the suit for non issuance of one month\'s notice to the alleged wrong doer. The case of the plaintiffs as put before the trial Court is with regard to complaining the wrong on the part of defendant Nos.2 and 3, who are the Forest Officers, of their purported illegal interference in the possession of the plaintiffs. Thus, the said wrong sought to be prevented by the plaintiffs by way of permanent injunction, has to be considered only if one month\'s notice as contemplated under Section 114-A of the Act has been given. In the absence of the same, the statute mandate dismissal of the suit. No exemption for non compliance of the said provision is contemplated. Therefore, the Trial Court is justified in dismissing the suit of the plaintiffs for non compliance of the said provision.</b></p><p><b>18.<span style=\"white-space:pre\">	</span>It is necessary to note that the trial Court has referred to the provisions of Sub-Section (1) of Section 114-A of the Act, which mandates obtaining prior sanction of the State Government. That observation may not be appropriate in view of Sub-Section (2) of Section 114-A of the Act, specifically dealing with the issue regarding filing of the suit. The present lis is only with regard to the right, title and interest of the plaintiffs and the alleged interference by the defendant Nos.2 and 3 into peaceful possession of the plaintiff over the suit property. Therefore, that would fall under Sub-Section (2) of Section 114-A of the Act requiring issuance of notice alone and would not fall under Sub-Section (1) of Section 114-A of the Act warranting prior sanction from the State Government.</b></p><p><b>19.<span style=\"white-space:pre\">	</span>Needless to mention that the dismissal of the suit for non compliance of the statutory provision referred to above, would not debar the plaintiffs from filing a fresh suit on compliance of the aforesaid provisions of law, even as held by the Division Bench of this Court in its judgment rendered in Syed Abdul Jabbar as Board of&nbsp; Wakf&nbsp; ILR 1991 KAR 1628, while dealing with similar requirement of want of issuance of notice under Section 56 of Wakf Act, 1954.</b></p><p><b>The RFA.No.200015/2020 filed by the plaintiffs is dismissed.</b></p><p><b><br></b></p><p><br></p>', '8eaebd2371f32e0d7ed0f71e04724321.JPG', 'b32978540f64f60b9f481dd32c67ea45.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-10', 1, '', '', '2022-01-11 03:30:15', '2022-01-11 03:30:15'),
(1269, 'UcmuS1Yl1eOIVdbdQQrPcNyI4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Stop treating the child as chattel since such conduct violates child\'s right under Article 21\'\'. Karnataka High Court advises parents while rejecting claim of wife for sole custody of the child.  ', '<p><span style=\"font-weight: bolder;\">Anupama V. Nadagouda vs Vijaya Mahantesh Mulemane <br></span><b>Miscellaneous First Appeal 2863 of 2021 decided on 14 December 2021<br></b></p><p><b>The present miscellaneous first appeal is filed by the wife against the impugned order dated 4.2.2021 passed in G &amp; WC No.337/2018 by the learned I Additional Principal Family, Bengaluru allowing I.A.5 filed under Order VII Rule 11 of the Code of Civil Procedure (for short, hereinafter referred to as the \'CPC) and consequently, rejecting the petition filed by the wife on the ground of jurisdiction and cause of action in view of the provisions of Section 9 of the Guardians and Wards Act, 1890.</b></p><p><b>16. In view of the aforesaid rival contentions urged by the learned Counsel for the parties, the only point that would arise for our consideration in the present miscellaneous first appeal is:-</b></p><p><b>\"Whether the Family Court is justified in allowing the application – I.A.5 filed under Order VII Rule 11 of the Code of Civil Procedure filed by the respondent-husband and consequently rejecting the plaint on the ground of jurisdiction and cause of action in the facts and circumstances of the present case?\"</b></p><p><b>21.<span style=\"white-space:pre\">	</span>On careful reading of the petition filed by the mother- appellant, though the child was born on 11.2.2011, in the entire petition, the appellant does not disclose where the child was born. In paragraph-10 of the petition, it is contended that keeping in mind the psychological welfare of the minor child and her future as well as on the advice of her parents, she decided to come back to India with her daughter and file a petition for divorce under the Hindu Marriage Act. Admittedly, the petition is filed for custody of the minor child and the entire petition does not disclose the fact that she has executed the Therapy Agreement signed and notarized at Canada with return tickets during the pendency of the petition for divorce as well as custody of the minor child before the Superior Court of Justice at Canada. Though the learned Counsel for the appellant has disputed the fact that the child was born in Canada, he has contended that the child is residing in India for the last three years. The intention of the mother to reside in India is an&nbsp; important factor which has to be considered while deciding the jurisdiction to entertain the petition under the provisions of&nbsp; Section&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9&nbsp; of&nbsp; the&nbsp; Guardians&nbsp; and Wards Act. The&nbsp; fact&nbsp; remains&nbsp; that the appellant has not produced any single document to prove that the child was born in India.</b></p><p><b>24. Though the learned Counsel for the appellant relied upon the dictum of the Hon\'ble Supreme Court in the case of Ruchi&nbsp; Majoo stated supra particularly paragraph-24, on perusal of the same, it would clearly depict that the solitary test for determining the jurisdiction of the Court under Section 9 of the Act is that</b></p><p><b>`ordinary residence\' of&nbsp; the minor.&nbsp; &nbsp;The expression used&nbsp; is “where the minor ordinarily resides\'. Whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. It may at best be a mixed question of law and fact, but unless the jurisdictional facts are admitted, it can never be a pure question of law, capable of being answered without an enquiry into the factual aspects of the controversy.</b></p><p><b>&nbsp;25.<span style=\"white-space:pre\">	</span>\"Admittedly, in the present case, on careful reading of the pleadings and the averments made in the petition for custody and appointment of guardianship and objections, it clearly depicts that the minor ordinarily resides in Canada. The appellant and child have come back to India on temporary basis by virtue of&nbsp; the interim order dated 1.11.2017 passed by the Superior Court of Justice&nbsp; at&nbsp; Toronto,&nbsp; Ontario,&nbsp; Canada.&nbsp; &nbsp; The&nbsp; expression&nbsp; `ordinary residence\' has got such a meaning that it rules out temporary residence of the child.&nbsp; Therefore, the judgment relied upon by the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">learned Counsel for the appellant in the case of Jasmeet Kaur ?vs- Navtej Singh reported in (2018) 4 SCC 295 wherein it was a case where the Hon\'ble Supreme Court while deciding jurisdiction of the Family Court on an application filed under Order VII Rule 11 of CPC&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">has held that, principle of comity of courts or forum convenience cannot alone determine threshold bar of jurisdiction. In the&nbsp; matters of Guardians and Wards Act, paramount consideration is always best interest of child. It cannot be subject matter of final determination in proceedings under Order VII Rule 11 of CPC.&nbsp; On&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">careful perusal of Section 9 of the Guardians and Wards Act as well as Order VII Rule 11 of CPC, the plaint, where it does not specify the cause of action, it has to be rejected.\"&nbsp; In the present petition in&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">paragraph-14, it only states that the cause of action for filing the petition was when the appellant learnt that the respondent-husband is neglecting the child and acting detrimental to their interests. When there is no mention about how the cause of action arises to entertain the petition by the Family Court, Bengaluru for custody of&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the child and appointment of guardianship and admittedly, according to the appellant-wife, the husband including the child are residents of Canada, where she has filed a petition for divorce and custody of child which is pending consideration and the same having been suppressed in the present case, the Family Court was justified in allowing the application- I.A.5 and rejecting the plaint in view of the provisions of Section 9 of the Guardians and Wards Act.</b></p><p><b>26.<span style=\"white-space:pre\">	</span>It is also an admitted fact that both appellant and respondent being wife and husband have a right to seek custody of the minor child or visitation rights under the provisions of the Guardians and Wards Act, but at the same time, it has to be remembered that a person after every knock at all the doors failed,&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">he approaches the judiciary as the last resort. It is the only temple worshipped by every citizen of this nation, regardless of religion, caste, sex or place of birth.&nbsp; Like any other organ of the State, the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">judiciary is also manned by human beings, but the function of judiciary is distinctly different from every organs of State. In the sense, its function is devine. Today, the judiciary is the repository of public faith. It is the trustee of the people. It is the last hope of the people.&nbsp; As such, when the mother has approached the Court in&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Bengaluru, she should have approached with clean hands without suppressing the material facts i.e., filing of divorce petition as well as seeking custody of the minor child at Canada Court wherein there is an interim order. Nodoubt, mother has every right, but at the same time, she has to prove where the minor ordinarily resides as contemplated under the provisions of Section 9 of the Guardians and&nbsp; Wards&nbsp; Act,&nbsp; and&nbsp; whether&nbsp; there&nbsp; is&nbsp; any&nbsp; cause&nbsp; of&nbsp; action&nbsp; as&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contemplated under Order VII Rule 11(a) of CPC. But the pleadings and material evidence on record clearly depict that the appellant- wife has not made out any cause to prove that the child ordinarily resides at Bengaluru as contemplated under Section 9 of the Guardians and Wards Act, 1890 and also there is no cause of action&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to file a petition as contemplated under Order VII Rule 11(a) of CPC.&nbsp;</b></p><p><b>29. In view of the above, it is clear that the appellant-wife has not come to the Court with clean hands. She has suppressed the material facts of the case as well as the pendency of the proceedings before the Superior Court of Justice, Canada. Thereby she has wasted judicial public time not only before the Family Court, but also before this Court. The conduct of the appellant is nothing but daring raid on the Court which cannot be encouraged. As such, this is a fit case to award cost so as to ensure that the parties should not misuse the Temple of Justice.</b></p><p><b>30. A message has to go to the parents like the present appellant that when they are dealing with the minor child, paramount interest of the child should be taken note of and without disturbing the mind and future of the child, the parents as well as Court which is a temple of justice should handle it with utmost care since they are responsible in ensuring their child becomes a good citizen of the Country. Unfortunately, today the atmosphere is different. Merely becoming parents, they are trying to harass the children in violation of human rights applicable to the children&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">including Article 21 of the Constitution of India to live honourably. The parents shall not play with the children and on their career.</b></p><p><b>31. The best interest of the child has been placed at the vanguard of family/custody disputes according the optimal growth and development of the child primacy over other considerations. The child is often left to grapple with the breakdown of an adult institution. While the parents aim to ensure that the child is least affected by the outcome, the inevitability of the uncertainty that follows regarding the child\'s growth lingers on till the new routine sinks in. The effect of separation of spouses, on children, psychologically, emotionally and even to some extent physically, spans from negligible to serious, which could be insignificant to noticeably critical.</b></p><p><b>34. It is also well settled that the children are not mere chattels : nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society. The child is the victim in custody battles. In the fight of egos and increasing acrimonious battles and litigations between two spouses, out experience show that more often than not, the parents, who otherwise love their child, present a picture as if the other spouse is a villain and he or she alone is entitled to the custody of the child. The Court must, therefore, be very wary of what is said by each of the spouses.&nbsp;</b></p><p><b>36. The concept of visitation rights is not fully developed in India. Most courts while granting custody to one spouse do not pass any orders granting visitation rights to the other spouse. As observed earlier, a child has a human right to have the love and affection of both the parents and courts must pass orders ensuring that the child is not totally deprived of the love, affection and company of one of her/his parents.</b></p><p><b>37. This is a classic case, where both parents shall have to act in a manner without detrimental to the interest of the child. As such, the Family Court was justified in rejecting the plaint/petition as it had no jurisdiction to entertain the petition. Accordingly, we pass the following order:</b></p><p><b>ORDER</b></p><p><b>i) Miscellaneous first Appeal filed by the appellant is dismissed as being devoid of merits;</b></p><p><b>iii) The appellant-wife is directed to deposit the cost of Rs.50,000/- (Rupees Fifty Thousand) before the Karnataka State Legal Services Authority within a period of four weeks for wasting public time of both the Family Court and this Court, and produce an acknowledgement for having deposited the said cost.</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '5c54c57aebe140b19e6915c3c3fefb3e.JPG', '5acba82525132c64301191386d8e3b5a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-11', 1, '', '', '2022-01-11 23:04:16', '2022-01-11 23:04:16');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1270, 'Qljk50exXNJtcZkjOoEPfSanH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Guardians and Wards Act, 1890. District court has no jurisdiction to decide child custody issue unless the child resides within its jurisdiction. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Anupama V Nadagouda vs Vijaya Mahantesh Mulemane.<br>Miscellaneous First Appeal 2863 of 2021 decided on 14 December 2021</span></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The present miscellaneous first appeal is filed by the wife against the impugned order dated 4.2.2021 passed in G &amp; WC No.337/2018 by the learned I Additional Principal Family, Bengaluru allowing I.A.5 filed under Order VII Rule 11 of the Code of Civil Procedure (for short, hereinafter referred to as the \'CPC) and consequently, rejecting the petition filed by the wife on the ground of jurisdiction and cause of action in view of the provisions of Section 9 of the Guardians and Wards Act, 1890.</b><span style=\"font-weight: bolder;\"><br></span></p><p><b>16. In view of the aforesaid rival contentions urged by the learned Counsel for the parties, the only point that would arise for our consideration in the present miscellaneous first appeal is:-</b></p><p><b>\"Whether the Family Court is justified in allowing the application – I.A.5 filed under Order VII Rule 11 of the Code of Civil Procedure filed by the respondent-husband and consequently rejecting the plaint on the ground of jurisdiction and cause of action in the facts and circumstances of the present case?\"</b></p><p><b>21. On careful reading of the petition filed by the mother- appellant, though the child was born on 11.2.2011, in the entire petition, the appellant does not disclose where the child was born. In paragraph-10 of the petition, it is contended that keeping in mind the psychological welfare of the minor child and her future as well as on the advice of her parents, she decided to come back to India with her daughter and file a petition for divorce under the Hindu Marriage Act. Admittedly, the petition is filed for custody of the minor child and the entire petition does not disclose the fact that she has executed the Therapy Agreement signed and notarized at Canada with return tickets during the pendency of the petition for divorce as well as custody of the minor child before the Superior Court of Justice at Canada. Though the learned Counsel for the appellant has disputed the fact that the child was born in Canada, he has contended that the child is residing in India for the last three years. The intention of the mother to reside in India is an&nbsp; important factor which has to be considered while deciding the jurisdiction to entertain the petition under the provisions of&nbsp; Section&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9&nbsp; of&nbsp; the&nbsp; Guardians&nbsp; and Wards Act. The&nbsp; fact&nbsp; remains&nbsp; that the appellant has not produced any single document to prove that the child was born in India.</b></p><p><b>24.<span style=\"white-space:pre\">	</span>Though the learned Counsel for the appellant relied upon the dictum of the Hon\'ble Supreme Court in the case of Ruchi&nbsp; Majoo stated supra particularly paragraph-24, on perusal of the same, it would clearly depict that the solitary test for determining the jurisdiction of the Court under Section 9 of the Act is that&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">`ordinary residence\' of&nbsp; the minor.&nbsp; &nbsp;The expression used&nbsp; is “where the minor ordinarily resides\'. Whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. It may at best be a mixed question of law and fact, but unless the jurisdictional facts are admitted, it can never be a pure question of law, capable of being answered without an enquiry into the factual aspects of the controversy.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;25.<span style=\"white-space:pre\">	</span>\"Admittedly, in the present case, on careful reading of the pleadings and the averments made in the petition for custody and appointment of guardianship and objections, it clearly depicts that the minor ordinarily resides in Canada. The appellant and child have come back to India on temporary basis by virtue of&nbsp; the interim order dated 1.11.2017 passed by the Superior Court of Justice&nbsp; at&nbsp; Toronto,&nbsp; Ontario,&nbsp; Canada.&nbsp; &nbsp; The&nbsp; expression&nbsp; `ordinary residence\' has got such a meaning that it rules out temporary residence of the child.&nbsp; Therefore, the judgment relied upon by the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">learned Counsel for the appellant in the case of Jasmeet Kaur ?vs- Navtej Singh reported in (2018) 4 SCC 295 wherein it was a case where the Hon\'ble Supreme Court while deciding jurisdiction of the Family Court on an application filed under Order VII Rule 11 of CPC&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">has held that, principle of comity of courts or forum convenience cannot alone determine threshold bar of jurisdiction. In the&nbsp; matters of Guardians and Wards Act, paramount consideration is always best interest of child. It cannot be subject matter of final determination in proceedings under Order VII Rule 11 of CPC.&nbsp; On&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">careful perusal of Section 9 of the Guardians and Wards Act as well as Order VII Rule 11 of CPC, the plaint, where it does not specify the cause of action, it has to be rejected.\"&nbsp; In the present petition in&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">paragraph-14, it only states that the cause of action for filing the petition was when the appellant learnt that the respondent-husband is neglecting the child and acting detrimental to their interests. When there is no mention about how the cause of action arises to entertain the petition by the Family Court, Bengaluru for custody of&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the child and appointment of guardianship and admittedly, according to the appellant-wife, the husband including the child are residents of Canada, where she has filed a petition for divorce and custody of child which is pending consideration and the same having been suppressed in the present case, the Family Court was justified in allowing the application- I.A.5 and rejecting the plaint in view of the provisions of Section 9 of the Guardians and Wards Act.</b><br></p><p><b>26.<span style=\"white-space:pre\">	</span>It is also an admitted fact that both appellant and respondent being wife and husband have a right to seek custody of the minor child or visitation rights under the provisions of the Guardians and Wards Act, but at the same time, it has to be remembered that a person after every knock at all the doors failed,&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">he approaches the judiciary as the last resort. It is the only temple worshipped by every citizen of this nation, regardless of religion, caste, sex or place of birth.&nbsp; Like any other organ of the State, the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">judiciary is also manned by human beings, but the function of judiciary is distinctly different from every organs of State. In the sense, its function is devine. Today, the judiciary is the repository of public faith. It is the trustee of the people. It is the last hope of the people.&nbsp; As such, when the mother has approached the Court in&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Bengaluru, she should have approached with clean hands without suppressing the material facts i.e., filing of divorce petition as well as seeking custody of the minor child at Canada Court wherein there is an interim order. Nodoubt, mother has every right, but at the same time, she has to prove where the minor ordinarily resides as contemplated under the provisions of Section 9 of the Guardians and&nbsp; Wards&nbsp; Act,&nbsp; and&nbsp; whether&nbsp; there&nbsp; is&nbsp; any&nbsp; cause&nbsp; of&nbsp; action&nbsp; as&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contemplated under Order VII Rule 11(a) of CPC. But the pleadings and material evidence on record clearly depict that the appellant- wife has not made out any cause to prove that the child ordinarily resides at Bengaluru as contemplated under Section 9 of the Guardians and Wards Act, 1890 and also there is no cause of action&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to file a petition as contemplated under Order VII Rule 11(a) of CPC.&nbsp;</b></p><p><b>29.<span style=\"white-space:pre\">	</span>In view of the above, it is clear that the appellant-wife has not come to the Court with clean hands. She has suppressed the material facts of the case as well as the pendency of the proceedings before the Superior Court of Justice, Canada. Thereby she has wasted judicial public time not only before the Family Court, but also before this Court. The conduct of the appellant is nothing but daring raid on the Court which cannot be encouraged. As such, this is a fit case to award cost so as to ensure that the parties should not misuse the Temple of Justice.</b></p><p><b>30.<span style=\"white-space:pre\">	</span>A message has to go to the parents like the present appellant that when they are dealing with the minor child, paramount interest of the child should be taken note of and without disturbing the mind and future of the child, the parents as well as Court which is a temple of justice should handle it with utmost care since they are responsible in ensuring their child becomes a good citizen of the Country. Unfortunately, today the atmosphere is different. Merely becoming parents, they are trying to harass the children in violation of human rights applicable to the children&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">including Article 21 of the Constitution of India to live honourably. The parents shall not play with the children and on their career.</b></p><p><b>31. The best interest of the child has been placed at the vanguard of family/custody disputes according the optimal growth and development of the child primacy over other considerations. The child is often left to grapple with the breakdown of an adult institution. While the parents aim to ensure that the child is least affected by the outcome, the inevitability of the uncertainty that follows regarding the child\'s growth lingers on till the new routine sinks in. The effect of separation of spouses, on children, psychologically, emotionally and even to some extent physically, spans from negligible to serious, which could be insignificant to noticeably critical.</b></p><p><b>34. It is also well settled that the children are not mere chattels : nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society. The child is the victim in custody battles. In the fight of egos and increasing acrimonious battles and litigations between two spouses, out experience show that more often than not, the parents, who otherwise love their child, present a picture as if the other spouse is a villain and he or she alone is entitled to the custody of the child. The Court must, therefore, be very wary of what is said by each of the spouses.&nbsp;</b></p><p><b>36. The concept of visitation rights is not fully developed in India. Most courts while granting custody to one spouse do not pass any orders granting visitation rights to the other spouse. As observed earlier, a child has a human right to have the love and affection of both the parents and courts must pass orders ensuring that the child is not totally deprived of the love, affection and company of one of her/his parents.</b></p><p><b>37. This is a classic case, where both parents shall have to act in a manner without detrimental to the interest of the child. As such, the Family Court was justified in rejecting the plaint/petition as it had no jurisdiction to entertain the petition. Accordingly, we pass the following order:</b></p><p><b>ORDER</b></p><p><b>i)<span style=\"white-space:pre\">	</span>Miscellaneous first Appeal filed by the appellant is dismissed as being devoid of merits;</b></p><p><b>The appellant-wife is directed to deposit the cost of Rs.50,000/- (Rupees Fifty Thousand) before the Karnataka State Legal Services Authority within a period of four weeks for wasting public time of both the Family Court and this Court, and produce an acknowledgement for having deposited the said cost.</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '00ebdc2423316087341ec524882f0b04.JPG', '945d7c22a2883c70780520b63c532f0e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-11', 1, '', '', '2022-01-12 00:02:44', '2022-01-12 00:02:44'),
(1271, 'fjHyJBCNCuyfvj24ZFWHCJxn8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prosecution for dishonour of cheque issued towards time barred debt is permissible when cheque was issued under a subsequent written agreement between the parties. Karnataka High Court. ', '<p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">K.R.Sudhir vs K.S.Suresh Raju</b><br></p><p><b>Criminal Petition 243 of 2021 decided on 7 December 2021. </b></p><p><b>Justice Sreenivas Harish Kumar</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">The petitioner being an accused in C.C.2669/2017 on the file of VIII Additional I Civil Judge and JMFC, Mysuru, has sought to quash the proceedings initiated under section 138 of the Negotiable Instruments Act. The&nbsp; legal&nbsp; point involved in this petition is,</b><br></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Whether the dishonour of two cheques issued by the petitioner to the respondent in relation to&nbsp; paying balance of sale consideration which the latter cannot recover on account of expiry of limitation period gives rise to a cause of action for initiating criminal action under&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">section 138 of the Negotiable Instruments Act?</b><br></p><p><b>7.<span style=\"white-space:pre\">	</span>The co-ordinate Bench of this Court, in the case of Bidar Urban Co-operative&nbsp; Bank&nbsp; Ltd.,&nbsp; has no doubt held that a cheque given in&nbsp; discharge of a time barred debt will not constitute a&nbsp; promise in writing in order to attract a criminal&nbsp; liability&nbsp; under Section 138 of N.I.Act, but the facts of the case for arriving at such a conclusion are very important and I will refer to it later.</b></p><p><b>8.<span style=\"white-space:pre\">	</span>In all the above decisions, the emphasis is&nbsp; on the expression ‘Time barred debt’. The further question is whether time barred debt&nbsp; can&nbsp; be brought within the realm of the expression legally enforceable debt or liability which finds a&nbsp; place in the explanation part of Section 138 of&nbsp; N.I.Act. ‘Time barred debt’ means a debt which cannot be recovered by instituting a suit in&nbsp; a&nbsp; Court&nbsp; of&nbsp; law due to expiry of the prescribed time for filing a&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">suit. That means legal&nbsp; remedy&nbsp; is&nbsp; not&nbsp; available, but a person entitled to recover money never loses his right. This is a&nbsp; well&nbsp; established&nbsp; principle&nbsp; of law. Even to file a&nbsp; suit&nbsp; to&nbsp; recover&nbsp; a&nbsp; sum&nbsp; of money, the transaction giving rise to&nbsp; a&nbsp; liability must be legal, else the suit, even if filed, can be dismissed. Therefore to obtain&nbsp; the&nbsp; true&nbsp; meaning of the expression “legally enforceable debt”, it is necessary to refer to some of the provisions of&nbsp; Indian Contract Act.</b></p><p><b>10.<span style=\"white-space:pre\">	</span>Now it is pertinent to&nbsp; refer to section 25&nbsp; of the Contract Act and section 29 (1) of the Limitation Act. Section 25 of the&nbsp; Contract&nbsp; Act&nbsp; states that a contract&nbsp; without&nbsp; consideration&nbsp; is void, but there are three exceptions found&nbsp; in&nbsp; clauses 1 to&nbsp; 3&nbsp; of&nbsp; the said section.&nbsp; Section 25&nbsp; (3) is relevant here for discussion. Its requirement is&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that there must be a promise made in writing and signed by the person to be charged therewith (promissor) or his agent generally or specifically authorized on his behalf to pay wholly or in part a debt of which the creditor might have enforced payment, but for the law of&nbsp; limitation&nbsp; of&nbsp; suits.&nbsp; That means, section 25(3) applies to a situation where there was a past valid contract and if&nbsp; the&nbsp; debt payable under that contract cannot be recovered on account of expiry of&nbsp; limitation period to file a suit, if the debtor or his duly authorized agent makes a promise in writing, it constitutes a lawful contract which can&nbsp; be&nbsp; enforced.&nbsp; Section 29(1 ) of the Limitation Act clearly states that nothing in this Act (Limitation Act) shall affect section 25 of the Indian Contract Act.&nbsp; Thus&nbsp; by virtue of a new contract coming into force under section 25, it becomes enforceable and it&nbsp; has nothing to do with the past contract which has become unenforceable due to lapse of time. This is&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the legal position that can be deduced from this analysis.&nbsp;</b></p><p><b>12.<span style=\"white-space:pre\">	</span>Therefore it is now clear that the meaning that can be ascribed to the expression legally enforceable debt or liability found in explanation&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to section 138 of N.I.Act is a debt&nbsp; or&nbsp; liability&nbsp; arising out of&nbsp; legally enforceable contract.&nbsp; Even if in respect of a time barred debt, an agreement comes into existence subsequently according to section 25(3) of the Contract Act,&nbsp; it&nbsp; becomes&nbsp; a&nbsp; new contract which&nbsp; is&nbsp; enforceable.&nbsp; Sections&nbsp; 18 and 19 of the Limitation Act only extend the period of limitation if there is acknowledgment of debt before the limitation period expires. Even if&nbsp; there&nbsp; is no acknowledgment of debt&nbsp; or&nbsp; liability in&nbsp; terms of section 18 or 19 of the Limitation Act, if a new agreement comes into existence according to section 25(3), it is a valid contract and thus a&nbsp; cheque issued in this connection, if dishonoured, attracts penal action under section 138 of N.I. Act.</b></p><p><b>13.<span style=\"white-space:pre\">	</span>In the judgment of the Kerala High Court&nbsp; &nbsp;in Sessariyil Joseph , section 25(3) of&nbsp; the Contract Act is referred to, but as the facts in that case disclose, a new contract in terms of section&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">25(3 ) did not come into existence.&nbsp; Even&nbsp; in&nbsp; the case of Giridhar Lal Rathi decided by Andhra Pradesh High Court, no agreement under section 25(3 ) came into existence between the parties. It&nbsp; is true that the co-ordinate bench of this court in Bidar Urban Co-operative Society (supra) has taken the view that a&nbsp; cheque given in&nbsp; discharge of&nbsp; a time barred debt&nbsp; does&nbsp; not&nbsp; constitute a&nbsp; promise in writing to attract a criminal&nbsp; liability under section 138 of N.I.Act. It is&nbsp; very&nbsp; important&nbsp; to&nbsp; note here that view was taken in&nbsp; the background&nbsp; &nbsp; of the facts therein. The father of the accused obtained loan from Bidar Urban Co-operative Bank. The father died without repaying the loan to the bank. When the bank issued notice, the accused issued a cheque for discharging the liability of his father. By that time the debt had become time barred. When the bank initiated proceeding under section 138 of N.I.Act against the accused for the dishonour of cheque issued by him, he took up</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contentions that the debt had become time barred and that there was no legally enforceable debt between him and the bank. There is a clear observation in para 27 of the judgment that&nbsp; loan was neither borrowed by the accused as contended&nbsp; in the complaint and the legal notice, nor the accused gave any express undertaking to pay any time barred debt of his father. Therefore the facts make it very clear that&nbsp; as&nbsp; between the bank and&nbsp; the accused there was no privity of contract even though he issued cheque. But the&nbsp; facts&nbsp; in&nbsp; the&nbsp; case on hand are different and hence the said judgment is distinguishable.</b></p><p><b>15.<span style=\"white-space:pre\">	</span>In the case on hand, the petitioner bought the property from respondent and others under a registered sale deed dated 15 .12.2011. He made advance payment of Rs.40,00, 000/- in the initial stage, and for the balance he issued four cheques which were not presented to the bank by the respondent because of a request made by the petitioner.<span style=\"white-space:pre\">	</span>On 20.12 .2016, the petitioner executed a memorandum of understanding (MoU) acknowledging the past transaction of sale and issued two cheques for the consideration&nbsp; he&nbsp; was due to pay. The MoU dated 20.12.2016 is a new contract in writing that came into existence according to section 25(3) of the Indian Contract Act. It was in this connection that the cheques in question were issued and when they were dishonoured, the respondent had to initiate action under section 138 of N.I.Act. Therefore&nbsp; the cheques were issued in connection with legally enforceable debt, and it was not a&nbsp; time&nbsp; barred&nbsp; debt. Argument of&nbsp; Sri.&nbsp; Dhyan&nbsp; Chinnappa,&nbsp; for these reasons cannot be accepted and&nbsp; therefore&nbsp; this petition fails and it is dismissed.</b></p>', '0b22d3b9103dc5af26e17228d7ecae71.jpeg', '42006341b08a9d3bed7ec0fbac4eacbf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-10', 1, '', '', '2022-01-12 00:32:11', '2023-01-10 11:12:53'),
(1272, 'l8djBAysMMg3nrpAWdt05NNE5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'High Court exercising supervisory jurisdiction under Article 227 can not act as a court of first appeal to re-appreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supreme Court.', '<p><b>M/s. Garment Craft vs Prakash Chand Goel<br>S.L.P. 13941 of 2021 decided on 11 January 2021<br>Justice Sanjiv Khanna and Justice Bela M. Trivedi.&nbsp;<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgement Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2021/19042/19042_2021_44_1501_32472_Judgement_11-Jan-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/19042/19042_2021_44_1501_32472_Judgement_11-Jan-2022.pdf</a></span><br></b></p><p><b>18. Having heard the counsel for the parties, we are clearly of the view\r\nthat the impugned order is contrary to law and cannot be sustained\r\nfor several reasons, but primarily for deviation from the limited\r\njurisdiction exercised by the High Court under Article 227 of the\r\nConstitution of India. The High Court exercising supervisory\r\njurisdiction does not act as a court of first appeal to reappreciate,\r\nreweigh the evidence or facts upon which the determination under\r\nchallenge is based. Supervisory jurisdiction is not to correct every\r\nerror of fact or even a legal flaw when the final finding is justified or\r\ncan be supported. The High Court is not to substitute its own\r\ndecision on facts and conclusion, for that of the inferior court or\r\ntribunal.\r\nCelina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC\r\n217. The jurisdiction exercised is in the nature of correctional\r\njurisdiction to set right grave dereliction of duty or flagrant abuse,&nbsp;violation of fundamental principles of law or justice. The power\r\nunder Article 227 is exercised sparingly in appropriate cases, like\r\nwhen there is no evidence at all to justify, or the finding is so\r\nperverse that no reasonable person can possibly come to such a\r\nconclusion that the court or tribunal has come to. It is axiomatic that\r\nsuch discretionary relief must be exercised to ensure there is no\r\nmiscarriage of justice. Explaining the scope of jurisdiction under\r\nArticle 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd.&nbsp;(2001) 8 SCC 97 has observed:-</b></p><p><b><i>“6. The scope and ambit of exercise of power and\r\njurisdiction by a High Court under Article 227 of the\r\nConstitution of India is examined and explained in a\r\nnumber of decisions of this Court. The exercise of\r\npower under this article involves a duty on the High\r\nCourt to keep inferior courts and tribunals within the\r\nbounds of their authority and to see that they do the duty\r\nexpected or required of them in a legal manner. The\r\nHigh Court is not vested with any unlimited prerogative\r\nto correct all kinds of hardship or wrong decisions made\r\nwithin the limits of the jurisdiction of the subordinate\r\ncourts or tribunals. Exercise of this power and\r\ninterfering with the orders of the courts or tribunals is\r\nrestricted to cases of serious dereliction of duty and\r\nflagrant violation of fundamental principles of law or\r\njustice, where if the High Court does not interfere, a\r\ngrave injustice remains uncorrected. It is also well\r\nsettled that the High Court while acting under this article\r\ncannot exercise its power as an appellate court or\r\nsubstitute its own judgment in place of that of the\r\nsubordinate court to correct an error, which is not\r\napparent on the face of the record. The High Court can\r\nset aside or ignore the findings of facts of an inferior\r\ncourt or tribunal, if there is no evidence at all to justify\r\nor the finding is so perverse, that no reasonable person\r\ncan possibly come to such a conclusion, which the court\r\nor tribunal has come to.”&nbsp;<br></i></b></p><p><b><br></b></p><p>\r\n<b><br></b></p><p><b><br></b></p><p><br></p>', 'bb5d54e513af61da747920f2f3a882fd.JPG', '449c7321b89fa6d92e59d998736afae0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-11', 1, '', '', '2022-01-12 02:10:03', '2022-01-12 02:10:03'),
(1273, 'uxcw9wIEGKOt1ulfnqXbMb6o2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'To combat the social evil, \'\'dowry\'\' ought to be ascribed an expansive meaning. Demand for money for construction of a house falls within the definition of the word \'\'dowry\'\'. Supreme Court ', '<p><b>State of Madhya Pradesh vs Jogendra and another <br>Criminal Appeal 190 of 2012 decided on 11 January 2021<br>Chief Justice N.V. Ramana, Justice A.S. Bopanna and Justice Hima Kohli</b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2010/13698/13698_2010_31_1502_32476_Judgement_11-Jan-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2010/13698/13698_2010_31_1502_32476_Judgement_11-Jan-2022.pdf</a></span><br></b></p><p><b>11. In a three Judge Bench decision of this Court in Rajinder Singh v.\r\n State of Punjab 2015) 6 SCC 477, Section 2 of the Dowry Act has been split into six\r\ndistinct parts for a better understanding of the said provision. </b></p><p><b>12. In the light of the above provision that defines the word “dowry” and\r\ntakes in its ambit any kind of property or valuable security, in our opinion,\r\nthe High Court fell into an error by holding that the demand of money for\r\nconstruction of a house cannot be treated as a dowry demand. In\r\nAppasaheb’s case [supra] referred to in the impugned judgment, this\r\nCourt had held that a demand for money from the parents of the\r\ndeceased woman to purchase manure would not fall within the purview\r\nof “dowry”, thereby strictly interpreting the definition of dowry. This view\r\nhas, however, not been subscribed to in Rajinder Singh’s case [supra]\r\nwherein it has been held that the said decision as also the one in the\r\ncase of Vipin Jaiswal[a-1] v. State of Andhra Pradesh represented by\r\n Public Prosecutor (2013) 3 SCC 684, do not state the law correctly. Noting that the\r\naforesaid decisions were distinct from four other decisions of this Court,\r\nviz., Bachni Devi and Another v. State of Haryana  (2011) 4 SCC 427, Kulwant Singh\r\n and Others v. State of Punjab (2013) 4 SCC 177, Surinder Singh v. State of\r\n Haryana (2014) 4 SCC 129, and Raminder Singh v. State of Punjab  (2014) 12 SCC 582, the Court opined\r\nthat keeping in mind the fact that Section 304-B was inserted in the IPC\r\nto combat the social evil of dowry demand that has reached alarming proportions, it cannot be argued that in case of an ambiguity in the\r\nlanguage used in the provision, the same ought to be construed strictly\r\nas that would amount to defeating the very object of the provision. <br></b></p><p><b>13. The Latin maxim “Ut Res Magis Valeat Quam Pereat” i.e, a liberal\r\nconstruction should be put up on written instruments, so as to uphold\r\nthem, if possible, and carry into effect, the intention of the parties, sums it\r\nup. Interpretation of a provision of law that will defeat the very intention\r\nof the legislature must be shunned in favour of an interpretation that will\r\npromote the object sought to be achieved through the legislation meant\r\nto uproot a social evil like dowry demand. In this context the word\r\n“Dowry” ought to be ascribed an expansive meaning so as to encompass any demand made on a woman, whether in respect of a property or a\r\nvaluable security of any nature. When dealing with cases under Section\r\n304-B IPC, a provision legislated to act as a deterrent in the society and\r\ncurb the heinous crime of dowry demands, the shift in the approach of\r\nthe courts ought to be from strict to liberal, from constricted to dilated.\r\nAny rigid meaning would tend to bring to naught, the real object of the\r\nprovision. Therefore, a push in the right direction is required to\r\naccomplish the task of eradicating this evil which has become deeply\r\nentrenched in our society.\r\n</b></p><p><b>14. In the facts of the instant case, we are of the opinion that the trial\r\nCourt has correctly interpreted the demand for money raised by the\r\nrespondents on the deceased for construction of a house as falling within\r\nthe definition of the word “dowry”. The submission made by learned\r\ncounsel for the respondents that the deceased was also a party to such\r\na demand as she had on her own asked her mother and maternal uncle\r\nto contribute to the construction of the house, must be understood in the\r\ncorrect perspective. It cannot be lost sight of that the respondents had\r\nbeen constantly tormenting the deceased and asking her to approach\r\nher family members for money to build a house and it was only on their\r\npersistence and insistence that she was compelled to ask them to\r\ncontribute some amount for constructing a house. The Court must be sensitive to the social milieu from which the parties hail.....In this background, the High Court\r\nfell in an error in drawing an inference that since the deceased had\r\nherself joined her husband and father-in-law, respondents herein and\r\nasked her mother or uncle to contribute money to construct a house,\r\nsuch demand cannot be treated as a “dowry demand”. On the contrary,\r\nthe evidence brought on record shows that the deceased was\r\npressurized to make such a request for money to her mother and uncle.\r\nIt was not a case of complicity but a case of sheer helplessness faced by\r\nthe deceased in such adverse circumstances.</b><br></p>', 'a4e0cebf03e587561c571581e75d39b4.jpeg', 'd4d94cc4a312c6a81b5ce820a310d2e3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-11', 1, '', '', '2022-01-12 03:05:52', '2022-01-12 03:06:19'),
(1274, 'FVe23Dzw2b8YMz5lejJ6ncfff', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SARFAESI Act. Writ petition against action of the private financial institution Assets Reconstructing Company under the Act is NOT maintainable.  Supreme Court. ', '<p><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Phoenix ARC Private Limited</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;vs&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Vishwa Bharati Vidya Mandir &amp; Ors.<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; font-weight: bolder;\">Civil Appeal&nbsp;</span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">257-259 of 2022 decided on 12 January 2022&nbsp;</b></p><p><b>Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2018/24969/24969_2018_42_1501_32513_Judgement_12-Jan-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/24969/24969_2018_42_1501_32513_Judgement_12-Jan-2022.pdf</a><br></b></p><p><b>1. Feeling aggrieved and dissatisfied with the impugned order dated\r\n27.03.2018 passed by the High Court of Karnataka at Bengaluru in Writ\r\nPetition Nos. 35564-35566 of 2015 by which the High Court has\r\nentertained the aforesaid writ petitions under Article 226 of the\r\nConstitution of India against the appellant, an Assets Reconstructing\r\nCompany and has passed an interim order directing for maintaining\r\nstatus quo with regard to SARFAESI action (possession of the secured\r\nassets), the original respondent – the Assets Reconstructing Company\r\n(ARC) has preferred the present appeals.&nbsp;<br></b></p><p><b>7.5 In the case of Kanaiyalal Lalchand Sachdev and Ors. (supra)\r\nafter referring to the earlier decisions of this Court in the cases of\r\nSadhana Lodh Vs. National insurance Co. Ltd. and Anr., (2003) 3\r\nSCC 524; Surya Dev Rai Vs. Ram Chander Rai and Ors., (2003) 6\r\nSCC 675 and State Bank of India Vs. Allied Chemical Laboratories\r\nand Anr., (2006) 9 SCC 252 while upholding the order passed by the\r\nHigh Court dismissing the writ petition on the ground that an efficacious\r\nremedy is available under Section 17 of the SARFAESI Act, it was\r\nobserved that ordinarily relief under Articles 226/227 of the Constitution&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of India is not available if an efficacious alternative remedy is available to\r\nany aggrieved person.\r\n</span></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7.6 Similar view has been expressed by this Court in subsequent\r\ndecisions in the case of General Manager, Sri Siddeshwara\r\nCooperative Bank Limited &amp; Anr. (supra) as well as in the case of\r\nAgarwal Tracom Private Limited (supra).\r\n</b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>8. Applying the law laid down by this court in the aforesaid decisions,\r\nit is required to be considered whether, in the facts and circumstances of\r\nthe case, the High Court is justified in entertaining the writ petitions\r\nagainst the communication dated 13.08.2015 and to pass the ex-parte\r\nad interim order virtually stalling/restricting the proceedings under the\r\nSARFAESI Act by the creditor.</b></span></p><p><b>12. Even otherwise, it is required to be noted that a writ petition\r\nagainst the private financial institution – ARC – appellant herein under\r\nArticle 226 of the Constitution of India against the proposed\r\naction/actions under Section 13(4) of the SARFAESI Act can be said to\r\nbe not maintainable. In the present case, the ARC proposed to take\r\naction/actions under the SARFAESI Act to recover the borrowed amount\r\nas a secured creditor. The ARC as such cannot be said to be performing\r\npublic functions which are normally expected to be performed by the\r\nState authorities. During the course of a commercial transaction and\r\nunder the contract, the bank/ARC lent the money to the borrowers herein\r\nand therefore the said activity of the bank/ARC cannot be said to be as\r\nperforming a public function which is normally expected to be performed&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by the State authorities. If proceedings are initiated under the\r\nSARFAESI Act and/or any proposed action is to be taken and the\r\nborrower is aggrieved by any of the actions of the private\r\nbank/bank/ARC, borrower has to avail the remedy under the SARFAESI\r\nAct and no writ petition would lie and/or is maintainable and/or\r\nentertainable. Therefore, decisions of this Court in the cases of Praga\r\nTools Corporation (supra) and Ramesh Ahluwalia (supra) relied upon\r\nby the learned counsel appearing on behalf of the borrowers are not of\r\nany assistance to the borrowers.</b></p><p><b>14. In view of the above and for the reasons stated above, present\r\nappeals succeed. The Writ Petition Nos. 35564 to 35566 of 2015 before\r\nthe High Court are dismissed. Consequently, the ex-parte ad-interim\r\norder dated 26.08.2015 further extended by orders dated 28.02.2017\r\nand 27.03.2018 stand vacated.\r\nPresent appeals are accordingly allowed with costs to the\r\nappellants to be paid by the original writ petitioners quantified at Rs.1\r\nlakh in both the cases to be directly paid to the appellant within a period\r\nof four weeks from today. Pending application(s), if any, also stand\r\ndisposed of.\r\n&nbsp;</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></p>', '5f5a7e1af473613b175580a50a07cab1.jpeg', 'ea5f2100fed5406b9d23513134509097.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-12', 1, '', '', '2022-01-12 23:41:18', '2022-01-12 23:41:18'),
(1275, 'JCzaV462tXkaXCkBwNyNTSS7w', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Frivolous litigation against Azim Premji and Forum Shopping. Karnataka High Court convicts office bearers of India Awake for Transparency for contempt of court.  ', '<p><span style=\"font-weight: bolder;\">Hasham Investment and Trading Company Pvt Ltd and others vs India Awake for Transparency Pvt Ltd. <br>Criminal Contempt of Case 9 of 2021 decided on 14 January 2021</span></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The present Criminal Contempt Petition is filed by the complainants under the provisions of Article 215 of the Constitution of India r/w Section 15 of the Contempt of Courts Act, 1971, seeking the following reliefs:</b><span style=\"font-weight: bolder;\"><br></span></p><p><b>i)<span style=\"white-space:pre\">	</span>Take cognizance of the offence of criminal contempt committed by the accused persons under the provisions of the Contempt of Courts Act, 1971;</b></p><p><b>ii)<span style=\"white-space:pre\">	</span>Pass orders imposing appropriate punishment against the accused persons under the provisions of the Contempt of Courts Act, 1971, for committing the acts of criminal contempt;</b></p><p><b>iii)<span style=\"white-space:pre\">	</span>Restrain and injunct the accused and other group companies of the 1st accused from initiating or proceeding with any legal proceedings against the complainants and the complainants\' group before any Court, Tribunal, authority, or forum.</b></p><p><b>67.<span style=\"white-space:pre\">	</span>It is true that the judges should not be hyper sensitive in discharging judicial functions, but that does not mean and imply that they ought to maintain angelic silence also.  Immaterial it is  as to the person but it is the seat of justice which needs protection; it is the image of judicial system which needs protection. Nobody can be permitted  to tarnish the image of the temple of justice.   The majesty of the Court shall have to be maintained and there ought not to be any compromise or leniency in that regard. It is well settled that legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by their exemplary conduct both in and outside the court. The casualness with which some members practice the profession is certainly not calculated to achieve that purpose or to enhance the </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">prestige either of the profession or of the institution they are serving.</b></p><p><b>68.<span style=\"white-space:pre\">	</span>The experience of this Court depicts that in recent years there has emerged a trend of filing speculative litigations before various Courts of law, not just in the Court of first instance, but also in the High Court as well as before the Hon\'ble Supreme Court.  It is the duty of the Courts to ensure that such litigations shall be weeded out at the first instance rather than allowing to be festered and thereby coming in the way of genuine litigants seeking justice treating the Court as \"Temple of Justice\" and to protect precious public & judicial time of the court.</b></p><p><b>69.<span style=\"white-space:pre\">	</span>It is high time for the Court to protect not only the majesty of the court, but also ensure judicial discipline of the Court, since it is the repository of public faith and trustee of the people. </b></p><p><b>86.<span style=\"white-space:pre\">	</span>On appreciation of the entire material placed on record and for the reasons stated above and in the light of the principles enunciated in the dictums of the Hon\'ble Supreme Court stated supra, we answer the points raised in the present contempt petition as under:</b></p><p><b>(i)<span style=\"white-space:pre\">	</span>The 1st point raised is answered in  the  affirmative holding that the charge levelled against Accused Nos.2 and 3 is proved beyond reasonable doubt, thereby the said accused persons have committed criminal contempt of court within the meaning of Section 2(c) of the Contempt of Courts Act, punishable  under Section 12 of the Contempt of Courts Act, in the facts and circumstances of the case.</b></p><p><b>(ii)<span style=\"white-space:pre\">	</span>The 2nd point raised is answered in the negative holding that the Accused Nos.2 and 3 have not made out a case to drop the criminal contempt proceedings and discharge them, in the facts and circumstances of the case.</b></p><p><b>87.<span style=\"white-space:pre\">	</span>In view of the above, we pass the following order:</b></p><p><b>(i)<span style=\"white-space:pre\">	</span>The criminal contempt petition is allowed.</b></p><p><b>(ii)<span style=\"white-space:pre\">	</span>Accused No.2 – Mr. R. Subramanian and Accused No.3 – Mr. P. Sadanand, are hereby convicted for the contempt of Court, punishable under the provisions of Section 12(1) of the Contempt of Courts Act and sentence them to undergo Simple Imprisonment for TWO MONTHS with fine of Rs.2,000/- (Rupees two thousand only) each, in default to undergo Simple Imprisonment for a further period of one month.</b></p><p><b>(iii)<span style=\"white-space:pre\">	</span>The Accused Nos.2 and 3 are hereby restrained from initiating any legal proceedings against the Complainants and their group of companies before any Court, Tribunal, Authority or forum.</b></p><p><b>The Registrar (Judicial) of this Court is directed to prepare a warrant of commitment and detention in respect of Accused No.2 and Accused No.3 in Form No.3 as contemplated under Rule 16(1) of the High Court of Karnataka (Contempt of Court Proceedings) Rules, 1981 and take further action against the Accused Nos.2 and 3 to undergo punishment imposed.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '3881a13bec22df5b368772cf2178b105.JPG', '4de04bbab5b7282d62d6a233a433c22b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-14', 1, '', '', '2022-01-14 22:53:03', '2022-01-16 17:06:49');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1276, 'AqyFGEO119tLuOsztP0naO3PX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Estoppel. Candidate participating in the selection process can challenge the selection on the ground of illegality since he accepts the prescribed procedure and not the illegality in it. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Ramanagouda V Patil and another  vs The State of Karnataka and others <br></span><b>Writ Petition 104236 of 2021 decided on 4 December 2021</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2. Respondent No.2-University issued a Notification dated 25.05.2021 inviting applications from eligible candidates for appointment to various posts of Officers including the posts of Director and Dean in the University. Petitioners’ being aggrieved by the issuance of Notification dated 25.05.2021 have filed this writ petition.</b><b><br></b></p><p><b>7. The points that arise for consideration in this writ petition are as under:</b></p><p><b>I) Whether the writ petitioner having participated in the selection process has locus standi to challenge the impugned notification as well as the Government Order dated 23.11.2018.</b></p><p><b>8. Point No.I: The petitioner, pursuant to the impugned Notification submitted an application to consider his claim for appointment to the various posts of Director/Dean in the respondent No.2-University. During the pendency of the writ petition, the petitioner participated in the interview conducted by respondent-University. However, the University has not declared the results. In this background, the point raised with regard to locus standi of the petitioner to maintain this writ petition has to be adjudicated in the backdrop of the following decisions of the Apex Court.</b></p><p><b>The Apex Court in the case of Dr. (Major) Meeta Sahai’s case (supra), at paragraph 17, has held as follows:</b></p><p><b>“17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.”</b></p><p><b>In Pradeep Kumar Rai and Others (supra), at paragraph 17, the Apex Court has held as under:</b></p><p><b>“17. Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. Thus, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted. (See Vijendra Kumar Verma v. Public Service Commission [Vijendra Kumar Verma v. Public Service Commission, (2011) 1 SCC 150 : (2011) 1 SCC (L&S) 21] </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and K.H. Siraj v. High Court of Kerala [K.H. Siraj v. High Court of Kerala, (2006) 6 SCC 395 : 2006 SCC (L&S) </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1345].)”</b></p><p><b>The Apex Court in the case of Madan Lal (supra), at paragraph 9 has held as follows:</b></p><p><b>“9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla [1986 Supp SCC 285 : 1986 SCC (L&S) 644 : AIR 1986 SC 1043] it </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.”</b></p><p><b>The Apex Court in the case of Dhananjay Malik (supra), at paragraphs 6 & 7 has held as follows:</b></p><p><b>“6. Before we proceed further we may point out at this stage that the writ petitions were rightly dismissed by the Single Judge and the Division Bench of the High Court fell in error in entertaining the appeals.</b></p><p><b>7. It is not disputed that the respondent-writ petitioners herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as BPE or graduate with diploma in Physical Education. Having unsuccessfully participated in the process of selection without any demur </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules.” </b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Apex Court in the case Madras Institute of Development Studies and Another (supra), at paragraphs 14 & 20, has held as follows:</b></p><p><b>“14. The question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection is no longer res integra.”</b></p><p><b>“20. Taking into consideration the entire facts of the case and the law laid down by this Court in a catena of decisions, we are of the definite opinion that the Division Bench has committed grave error in law by passing the impugned judgment reversing the order passed by the learned Single Judge.”</b></p><p><b>In the decisions relied upon by the learned counsel for the university, the Apex Court has held that when a candidates has participated in the selection process and the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted.</b></p><p><b>In the decisions relied upon by the learned counsel for the petitioners in Pradeep Kumar Rai’s and Dr.(Major) Meeta Sahai’s case (supra), the Apex Court has held that the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. It is further held that a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.</b></p><p><b>In the present case, the petitioner though submitted an application to consider his case in pursuance of the impugned notification, however, has not participated in the interview at the time of filing of the writ petition, but participated in the interview during the pendency of the writ petition and also admittedly the result of which is not announced . Hence, Point  No.I  is answered in favour of the petitioner.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '09686c823bfe15d5f02b05ae83e85373.jpg', '2012e6a322a0fd6bccbba51dfea3b9a4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-15', 1, '', '', '2022-01-15 18:47:00', '2022-01-15 19:22:34'),
(1277, 'yzLLxFh4BQCmdZueaT5akDbQb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Sambhavami Yuge Yuge\'\'. Court has to act as \'Societal Parent\' to protect Dharma as preached by Bhagvan Sri Krishna in Bhagavadgeetha. Karnataka High Court. ', '<p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Hasham Investment and Trading Company Pvt Ltd and others vs India Awake for Transparency Pvt Ltd. </b><br></p><p><b>Criminal Contempt of Case 9 of 2021 decided on 14 January 2021</b></p><p><b>The present Criminal Contempt Petition is filed by the complainants under the provisions of Article 215 of the Constitution of India r/w Section 15 of the Contempt of Courts Act, 1971, seeking the following reliefs:</b></p><p><b>i) Take cognizance of the offence of criminal contempt committed by the accused persons under the provisions of the Contempt of Courts Act, 1971;</b></p><p><b>ii) Pass orders imposing appropriate punishment against the accused persons under the provisions of the Contempt of Courts Act, 1971, for committing the acts of criminal contempt;</b></p><p><b>iii) Restrain and injunct the accused and other group companies of the 1st accused from initiating or proceeding with any legal proceedings against the complainants and the complainants\' group before any Court, Tribunal, authority, or forum.</b></p><p><b>65.<span style=\"white-space:pre\">	</span>Like any other organ of the State, the Judiciary is also manned by human beings - but the function of the judiciary is </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">distinctly different from other organs of the State - in the sense its function is divine. Today, the judiciary is the repository of public faith. It is the trustee of the people. It is the last hope of the people. After every knock at all the doors fail, people approach the judiciary as the last resort. It is the only temple worshipped by every citizen of this nation, regardless of religion, caste, sex or </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">place of birth. It is high time the judiciary must take utmost care  to see that the temple of justice does not crack from inside, which will lead to a catastrophe in the justice-delivery system resulting in the failure of public confidence in the system. We must remember that woodpeckers inside pose a larger threat than the storm </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">outside.</b></p><p><b>66.<span style=\"white-space:pre\">	</span>The accused No.2 who is the Officer of the Court must ensure that the majesty of the Court is maintained and not to take advantage to file repeated petitions at the instance of Accused No.3 in the name of Accused No.1 company – \'India Awake for Transparency\', which is non-existing. In such an event, the people lose confidence in the profession on account of deviant ways by Accused No.2 at the instance of Accused No.3. It is not only the profession which will suffer but also administration of justice as a whole. It is for the members of the profession to introspect and take corrective steps in time and also spare the Courts the unpleasant duty. The conduct of Accused NO.3 filing the petitions again and again against the complainants in the name of Accused </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">No.1 - company, which is non-existent, is nothing but daring ride on the Court, which is impermissible.</b></p><p><b>67.<span style=\"white-space:pre\">	</span>It is true that the judges should not be hyper sensitive in discharging judicial functions, but that does not mean and imply that they ought to maintain angelic silence also.  Immaterial it is  as to the person but it is the seat of justice which needs protection; it is the image of judicial system which needs protection. Nobody can be permitted  to tarnish the image of the temple of justice.   The majesty of the Court shall have to be maintained and there ought not to be any compromise or leniency in that regard. It is well settled that legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by their exemplary conduct both in and outside the court. The casualness with which some members practice the profession is certainly not calculated to achieve that purpose or to enhance the </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">prestige either of the profession or of the institution they are serving.</b></p><p><b>68.<span style=\"white-space:pre\">	</span>The experience of this Court depicts that in recent years there has emerged a trend of filing speculative litigations before various Courts of law, not just in the Court of first instance, but also in the High Court as well as before the Hon\'ble Supreme Court.  It is the duty of the Courts to ensure that such litigations shall be weeded out at the first instance rather than allowing to be festered and thereby coming in the way of genuine litigants seeking justice treating the Court as \"Temple of Justice\" and to protect precious public & judicial time of the court.</b></p><p><b><i>\"This augurs ill for the health of our judicial system\".</i></b></p><p><b>69.<span style=\"white-space:pre\">	</span>It is high time for the Court to protect not only the majesty of the court, but also ensure judicial discipline of the Court, since it is the repository of public faith and trustee of the people. The circumstances warrant that the Court has to act as \'Societal Parent\' to protect Dharma as preached by Bhagvan Sri Krishna, at verse 7-8 of Chapter 4 of the Bhagavadgeetha, which is as under:</b></p><p><i><b>Whenever there is decay of righteousness, O Bharata, And there is exaltation of unrighteousness, then I myself come forth; </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">For the protection of the good, for the destruction of evil-doers, </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">For the sake of firmly establishing righteousness, I am born from age to age.</b></i></p><p><b>86.<span style=\"white-space:pre\">	</span>On appreciation of the entire material placed on record and for the reasons stated above and in the light of the principles enunciated in the dictums of the Hon\'ble Supreme Court stated supra, we answer the points raised in the present contempt petition as under:</b></p><p><b>(i)<span style=\"white-space:pre\">	</span>The 1st point raised is answered in  the  affirmative holding that the charge levelled against Accused Nos.2 and 3 is proved beyond reasonable doubt, thereby the said accused persons have committed criminal contempt of court within the meaning of Section 2(c) of the Contempt of Courts Act, punishable  under Section 12 of the Contempt of Courts Act, in the facts and circumstances of the case.</b></p><p><b>(ii)<span style=\"white-space:pre\">	</span>The 2nd point raised is answered in the negative holding that the Accused Nos.2 and 3 have not made out a case to drop the criminal contempt proceedings and discharge them, in the facts and circumstances of the case.</b></p><p><b>87.<span style=\"white-space:pre\">	</span>In view of the above, we pass the following order:</b></p><p><b>(i)<span style=\"white-space:pre\">	</span>The criminal contempt petition is allowed.</b></p><p><b>(ii)<span style=\"white-space:pre\">	</span>Accused No.2 – Mr. R. Subramanian and Accused No.3 – Mr. P. Sadanand, are hereby convicted for the contempt of Court, punishable under the provisions of Section 12(1) of the Contempt of Courts Act and sentence them to undergo Simple Imprisonment for TWO MONTHS with fine of Rs.2,000/- (Rupees two thousand only) each, in default to undergo Simple Imprisonment for a further period of one month.</b></p><p><b>(iii)<span style=\"white-space:pre\">	</span>The Accused Nos.2 and 3 are hereby restrained from initiating any legal proceedings against the Complainants and their group of companies before any Court, Tribunal, Authority or forum.</b></p><p><b>The Registrar (Judicial) of this Court is directed to prepare a warrant of commitment and detention in respect of Accused No.2 and Accused No.3 in Form No.3 as contemplated under Rule 16(1) of the High Court of Karnataka (Contempt of Court Proceedings) Rules, 1981 and take further action against the Accused Nos.2 and 3 to undergo punishment imposed.</b></p><p><br></p>', '83a791ca55f2547661ffb6e5f3ffad8c.JPG', '31f77c8644a6338f68fa60d4a0534af6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-16', 1, '', '', '2022-01-16 17:13:31', '2022-01-16 17:24:29'),
(1278, 'tQV6VTCNMhR2PEtNZd70zFeYi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Non-impleadment of particular Department in Writ Petition is not a ground for the State Government not to comply with Court order. Karnataka High Court suggests appointment of Nodal Coordinating Officer.', '<p><font color=\"#286090\" face=\"Helvetica Neue, Helvetica, Arial, sans-serif\"><span style=\"font-size: 15px;\"><b>Wildlife Conservation Action Team vs The State of Karnataka </b></span></font></p><p><font color=\"#286090\" face=\"Helvetica Neue, Helvetica, Arial, sans-serif\"><span style=\"font-size: 15px;\"><b>WP 46528/2016 Order dated 30 October 2019</b></span></font></p><p><b><span style=\"color: rgb(51, 51, 51); font-family: \"Helvetica Neue\", Helvetica, Arial, sans-serif; font-size: medium; background-color: rgb(249, 249, 249);\">Chief Justice Abhay Abhay Shreeniwas Oka and Justice S.R. Krishna Kumar </span><font color=\"#286090\" face=\"Helvetica Neue, Helvetica, Arial, sans-serif\"><span style=\"font-size: 15px;\"><br></span></font></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Heard the learned Senior counsel appearing for the petitioners and the learned AGA appearing for the respondents. There are three main prayers made in the petition. The first prayer is for issuing a writ of mandamus directing the second to fifth respondents to remove all Kaval Guards from the Basur Amruth Mahal Kaval Black Buck Conservation Reserve and to stop all illegal activities of encroachment in the Conservation Reserve land, as the same are in violation of the Wild Life (Protection) Act, 1972 (for short ‘the said Act of 1972’). The second prayer is for directing the first respondent – State of Karnataka (through the Department of Forest, Ecology & Environment) to stop all construction activities in the region. The third prayer is for a writ of mandamus directing the first respondent to constitute a Conservation Reserve Management Committee as per Section 36-B of the said Act of 1972. Further directions are sought for protection and conservation of the Conservation Reserve and for removal of illegal encroachments therein. We have perused the orders passed in this petition from time to time. Before the writ petition was amended as per the orders of this Court dated 07th October 2016, the second respondent was the State of Karnataka through the Department of Animal Husbandry and Fisheries and in fact, under the order dated 21st October 2016, notice was issued to all the respondents, which was accepted by the learned AGA. On 20th June 2019, this Court while directing the State Government and the third respondent to file objections, also directed that in the light of the letter dated 22nd October 2014 (Annexure-H) addressed by the Deputy Director, Animal Husbandry and Veterinary Services Department, Chikkamagalur, necessary action will have to be taken by the third respondent. As noted in the orders of the Court and in particular 7th August 2019, by a Notification dated 30th April 2011 issued under sub-section (1) of Section 36A of the said Act of 1972, an area specified in the Schedule to the said Notification has been declared as “Conservation Reserve”. Though directions were repeatedly issued to constitute the Conservation Reserve Management Committee, only after this Court indicated by an order dated 09th September 2019 that an action under the Contempt of Courts Act will be initiated, that the Conservation Reserve Management Committee was constituted by a Notification dated 24th September 2019. The order dated 26th September 2019 refers to an Affidavit filed by Sri. G. Santosh Kumar, Deputy Conservator of Forests, Chikkamagalur. The Affidavit notes that on 13th February 2014, notices were issued to the ‘Kavalgars’, who were allotted lands and who have violated the terms and conditions of the allotment made in their favour. It is stated that writ petitions have been filed by them and an interim order has been passed in the said writ petitions, which is annexed as Annexure-L to the petition. Annexure-L shows that what was granted earlier was an ad-interim relief till the next date. In paragraph-10 of the same Affidavit, the State Government has reiterated its commitment to protect the wild life and its reserve and it is stated that a decision was taken to remove the encroachments of the lands in excess of the extent given to ‘Kavalgaars’ as early on 13th February 2014. It is reiterated that the said action of removal is stalled due to the interim order passed by the learned Single Judge. It is not clear whether the interim order is operative till today. The least we expected was the State Government will defend the petitions pending before the learned Single Judge and that if necessary, move the learned Single Judge for vacating the interim order. There is a statement on oath in the objections filed in this petition that the State Government is committed to protect the wild life and its reserve and therefore, it has taken a decision of removing the encroachments. Today, a stand is taken by the learned AGA that as the State Government through Animal Husbandry Department is a party to the petitions before the learned Single Judge and as the said Department is not a party to the present petition, he cannot make any statement whether objections have been filed to the petitions before the learned Single Judge and whether the State has moved the learned Single Judge for vacating the interim order. As stated earlier, ultimately the State Government is a party to the petitions in both the matters. If such a stand is taken by the State Government, it will mean that if in a petition the State Government is impleaded through a particular Department, the other Department can raise a contention that the order of the Court is not binding on that other Department because the State Government is not impleaded as a party through the said Department. Whenever there is an order of the Court against the State Government, it is for the State to decide which Department will take steps to implement the orders of the Court. Ultimately, it is the obligation of the State Government to implement the directions of this Court. Only a limited direction was issued by this Court under the order dated 26th September 2019, which reads as under:- The State Government will have to disclose whether objections have been filed to the said petitions and whether the State has moved the learned Single Judge for vacating the interim order. To enable the learned Additional Government Advocate to take instructions and to make a statement on this aspect, let the petition be listed for preliminary hearing on 30th October 2019. We cannot appreciate the stand taken by the State Government that as the Department of Animal Husbandry is not a party to this petition, the State Government will not comply with the very limited direction issued, which is quoted above. We cannot tolerate such approach when it comes to implementation of the orders of the Court which are binding on the State Government. We, therefore, direct that a copy of this order shall be placed before the Chief Secretary of the State Government to enable the Chief Secretary to issue necessary directions to all the Departments to ensure that such technical pleas are not raised by any Department of the State before the Court. The Chief Secretary will also consider of appointing a Nodal Officer who will coordinate with the various Departments of the State Government, so that the orders of the Court are complied with without raising any technical objections. For reporting compliance of the aforesaid directions and for reporting compliance with the direction issued in the order dated 26th September 2019, let the petition be listed on 25th November 2019.</b></span><br></p>', 'c97531149307d6c4bab52802664d86b4.JPG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-16', 1, '', '', '2022-01-17 00:32:53', '2022-01-17 00:34:57'),
(1279, 'd30cEKtbi0c6MNZzLhECQbbn1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Summary Suit. Grant of leave to defend with or without conditions is the ordinary rule and denial of leave to defend is an exception. Supreme Court. ', '<p><b>B.L.Kshyap and sons ltd vs M/s. IMS Steels and Power Corporation and another&nbsp;<br>Civil Appeal (SLP 19413 of 2018) decided on 18 January 2021<br>Justice Vineet Saran and Justice Dinesh Maheshwari<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2018/26771/26771_2018_33_1501_32633_Judgement_18-Jan-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/26771/26771_2018_33_1501_32633_Judgement_18-Jan-2022.pdf</a></span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">17. It is at once clear that even though in the case of IDBI\r\nTrusteeship, this Court has observed that the principles stated in\r\nparagraph 8 of Mechelec Engineers’ case shall stand superseded in the\r\nwake of amendment of Rule 3 of Order XXXVII but, on the core theme,\r\nthe principles remain the same that grant of leave to defend (with or\r\nwithout conditions) is the ordinary rule; and denial of leave to defend is an\r\nexception. Putting it in other words, generally, the prayer for leave to\r\ndefend is to be denied in such cases where the defendant has practically\r\nno defence and is unable to give out even a semblance of triable issues\r\nbefore the Court.</span><br></b></p><p><b>17.1. As noticed, if the defendant satisfies the Court that he has\r\nsubstantial defence, i.e., a defence which is likely to succeed, he is&nbsp;entitled to unconditional leave to defend. In the second eventuality, where\r\nthe defendant raises triable issues indicating a fair or bonafide or\r\nreasonable defence, albeit not a positively good defence, he would be\r\nordinarily entitled to unconditional leave to defend. In the third\r\neventuality, where the defendant raises triable issues, but it remains\r\ndoubtful if the defendant is raising the same in good faith or about\r\ngenuineness of the issues, the Trial Court is expected to balance the\r\nrequirements of expeditious disposal of commercial causes on one hand\r\nand of not shutting out triable issues by unduly severe orders on the\r\nother. Therefore, the Trial Court may impose conditions both as to time or\r\nmode of trial as well as payment into the Court or furnishing security. In\r\nthe fourth eventuality, where the proposed defence appear to be plausible\r\nbut improbable, heightened conditions may be imposed as to the time or\r\nmode of trial as also of payment into the Court or furnishing security or\r\nboth, which may extend to the entire principal sum together with just and\r\nrequisite interest.<br></b></p><p><b>17.2. Thus, it could be seen that in the case of substantial defence, the\r\ndefendant is entitled to unconditional leave; and even in the case of a\r\ntriable issue on a fair and reasonable defence, the defendant is ordinarily\r\nentitled to unconditional leave to defend. In case of doubts about the\r\nintent of the defendant or genuineness of the triable issues as also the\r\nprobability of defence, the leave could yet be granted but while imposing\r\nconditions as to the time or mode of trial or payment or furnishing&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">security. Thus, even in such cases of doubts or reservations, denial of\r\nleave to defend is not the rule; but appropriate conditions may be\r\nimposed while granting the leave. It is only in the case where the\r\ndefendant is found to be having no substantial defence and/or raising no\r\ngenuine triable issues coupled with the Court’s view that the defence is\r\nfrivolous or vexatious that the leave to defend is to be refused and the\r\nplaintiff is entitled to judgment forthwith. Of course, in the case where\r\nany part of the amount claimed by the plaintiff is admitted by the\r\ndefendant, leave to defend is not to be granted unless the amount so\r\nadmitted is deposited by the defendant in the Court.&nbsp;</span></b></p><p><b>17.3. Therefore, while dealing with an application seeking leave to\r\ndefend, it would not be a correct approach to proceed as if denying the\r\nleave is the rule or that the leave to defend is to be granted only in\r\nexceptional cases or only in cases where the defence would appear to be\r\na meritorious one. Even in the case of raising of triable issues, with the\r\ndefendant indicating his having a fair or reasonable defence, he is\r\nordinarily entitled to unconditional leave to defend unless there be any\r\nstrong reason to deny the leave. It gets perforce reiterated that even if\r\nthere remains a reasonable doubt about the probability of defence,\r\nsterner or higher conditions as stated above could be imposed while\r\ngranting leave but, denying the leave would be ordinarily countenanced\r\nonly in such cases where the defendant fails to show any genuine triable\r\nissue and the Court finds the defence to be frivolous or vexatious.</b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></p>', '2cfe242de9b1e277105ff952a4a51027.jpeg', 'c09cbffac628e51230a71d9d88c5a045.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-18', 1, '', '', '2022-01-19 03:35:46', '2022-01-19 03:35:46'),
(1280, 'I8ug9Fdd5WQ9mB7eC7L3rTO5J', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Trademarks Act. Once it is found that defendant’s trademark is identical with plaintiff’s registered trade mark, Court need not enquire as to whether infringement would deceive or cause confusion. Supreme Court. ', '<p><b>Renaissance Hotel Holdings Inc vs B. Vijaya sai and others&nbsp;<br>Civil Appeal 404 of 2022 decided on 19 January 2022<br>Justice L. Nageswara Rao, Justice B.R.Gavai and Justice B.V. Nagarathna&nbsp;<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/25790/25790_2019_35_1501_32774_Judgement_19-Jan-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/25790/25790_2019_35_1501_32774_Judgement_19-Jan-2022.pdf</a></b><b><br></b></p><p><b>42. It&nbsp; &nbsp;could&nbsp; &nbsp;thus&nbsp; &nbsp;be&nbsp; &nbsp;seen&nbsp; &nbsp;that&nbsp; &nbsp;in&nbsp; &nbsp;all&nbsp; &nbsp;legal&nbsp; &nbsp;proceedings relating to trade mark registered under the said Act, the original registration of the trade mark and of all subsequent assignments and transmissions of the trade mark shall be prima facie evidence of the validity thereof</b></p><p><b>43. The legislative scheme is clear that when the mark of the defendant is identical with the registered trade mark of the plaintiff and the goods or services covered are similar to the ones covered by such registered trade mark, it may be necessary to prove that it is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark.&nbsp; &nbsp;Similarly, when the trade mark of the plaintiff is similar to the registered trade mark of the defendant and the goods or services covered by such registered trade mark are identical or similar to the goods or services covered by such registered trade mark, it may again be necessary to establish that it is likely to cause confusion on the part of the public.&nbsp; However, when the trade mark of the defendant is identical with the registered trade mark of the plaintiff and that the goods or services of the defendant are identical with the goods or services covered by registered trade mark, the Court shall presume that it is likely to cause confusion on the part of the public.&nbsp;</b></p><p><b>45.It could thus be seen that this Court has pointed out the distinction between the causes of action and right to relief in suits for&nbsp; &nbsp;passing&nbsp; &nbsp;off&nbsp; &nbsp;and&nbsp; &nbsp;for&nbsp; &nbsp;infringement&nbsp; &nbsp;of registered trade mark.&nbsp; It has been held that the essentials of a&nbsp; passing&nbsp; off&nbsp; &nbsp;action&nbsp; &nbsp;with&nbsp; &nbsp;those&nbsp; &nbsp;in&nbsp; &nbsp;respect&nbsp; &nbsp;of&nbsp; &nbsp;an&nbsp; &nbsp;action complaining of an infringement of a registered trade mark, cannot be equated.&nbsp; It has been held that though an action for passing off is a Common Law remedy being an action for deceit, that is, a passing off by a person of his own goods as those of another; the action for infringement is a statutory right conferred on the registered proprietor of a registered trade mark for the vindication of the exclusive rights to the use of the trade mark in relation to those goods. The use by the defendant of the trade mark of the plaintiff is a sine qua non in the case of an action for infringement. It has further been held that if the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get­up, packing and other writing or marks on the goods or on the packets in which he offers his goods for sale show marked differences, or indicate clearly a trade origin different from that of the registered proprietor of the mark, would be immaterial in a case of infringement of the trade mark, whereas in the case of a passing off, the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff.&nbsp;</b></p><p><b>47.It could thus be seen that this Court again reiterated that the question to be asked in an infringement action is as to whether the defendant is using a mark which is same as, or which is a colourable imitation of the plaintiff’s registered trade mark.&nbsp; It has further been held that though the get up of&nbsp; &nbsp;the&nbsp; &nbsp;defendant’s&nbsp; &nbsp;goods&nbsp; &nbsp;may&nbsp; &nbsp;be&nbsp; &nbsp;so&nbsp; &nbsp;different&nbsp; &nbsp;from&nbsp; &nbsp;the plaintiff’s goods and the prices may also be so different that there would be no probability of&nbsp; deception&nbsp; of&nbsp; the public, nevertheless&nbsp; &nbsp;even&nbsp; &nbsp;in&nbsp; &nbsp;such&nbsp; &nbsp;cases,&nbsp; &nbsp;i.e.,&nbsp; &nbsp;in&nbsp; &nbsp;an&nbsp; &nbsp;infringement action, an injunction would be issued as soon as it is proved that the defendant is improperly using the plaintiff’s mark.&nbsp; It has been reiterated that no case of actual deception nor any actual damage needs to be proved in such cases. This Court has further held that though two actions are closely similar in some respects, in an action for infringement, where the defendant’s trade mark is identical with the plaintiff’s trade mark, the Court will not enquire whether the infringement is such as is likely to deceive or cause confusion.&nbsp;</b></p><p><b>49. However, the High Court, while reversing the decree of injunction&nbsp; &nbsp;granted&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;trial&nbsp; &nbsp;court,&nbsp; &nbsp;has&nbsp; &nbsp;held&nbsp; &nbsp;that&nbsp; &nbsp;the appellant­plaintiff had failed to establish that the trade mark has reputation in India and that the respondents­defendants’ use&nbsp; &nbsp;thereof&nbsp; &nbsp;was&nbsp; &nbsp;honest&nbsp; &nbsp;and&nbsp; &nbsp;further&nbsp; &nbsp;that&nbsp; &nbsp;there&nbsp; &nbsp;was&nbsp; &nbsp;no confusion likely to be created in the minds of the consumers inasmuch as the class of consumers was totally different.&nbsp; It appears that the High Court has relied only on clause (c) of sub­section (4) of Section 29 of the said Act to arrive at such a conclusion.&nbsp;</b></p><p><b>50. We find that the High Court has totally erred in taking into consideration only clause (c) of sub­section (4) of Section 29 of the said Act.&nbsp; &nbsp;It is to be noted that, whereas, the legislature has used the word ‘or’ after clauses (a) and (b) in sub­section (2) of Section 29 of the said Act, it has used the word&nbsp; &nbsp;‘and’&nbsp; &nbsp;after&nbsp; &nbsp;clauses&nbsp; &nbsp;(a)&nbsp; &nbsp;and&nbsp; &nbsp;(b)&nbsp; &nbsp;in&nbsp; &nbsp;sub­section&nbsp; &nbsp;(4)&nbsp; &nbsp;of Section 29 of the said Act.&nbsp; &nbsp;It could thus be seen that the legislative intent is very clear.&nbsp; Insofar as sub­section (2) of Section 29 of the said Act is concerned, it is sufficient that any of the conditions as provided in clauses (a), (b) or (c) is satisfied.&nbsp; &nbsp;</b></p><p><b>52. The perusal of sub­section (4) of Section 29 of the said Act would reveal that the same deals with an eventuality when the impugned trade mark is identical with or similar to the registered trade mark and is used in relation to goods or services which are not similar to those for which the trade mark is registered. Only in such an eventuality, it will be necessary to establish that the registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark. The legislative intent is clear by employing the word “and” after clauses (a) and (b) in sub­section (4) of Section 29 of the said Act.&nbsp; Unless all the three conditions are satisfied, it will not be open to the proprietor of the registered trade mark to sue for infringement when though the impugned trade mark is identical with the registered trade mark, but is used in relation to goods or services which are not similar to those for which the trade mark is registered.&nbsp; &nbsp;To sum up, while sub­section (2) of Section 29 of the said Act deals with those situations where the trade mark is identical or similar and the goods covered by such a trade mark are identical or similar, sub­section (4) of Section 29 of the said Act deals with situations where though the trade mark is identical, but the goods or services are not similar to those for which the trade mark is registered.&nbsp;&nbsp;</b></p><p><b>54.In these circumstances, we are of the considered view that it was not open for the High Court to have entered into the discussion as to whether the appellant­plaintiff’s trade mark had a reputation in India and the use of the mark without&nbsp; &nbsp;due&nbsp; &nbsp;cause&nbsp; &nbsp;takes&nbsp; &nbsp;unfair&nbsp; &nbsp;advantage&nbsp; &nbsp;of&nbsp; &nbsp;or&nbsp; &nbsp;is detrimental&nbsp; &nbsp;to,&nbsp; &nbsp;the&nbsp; &nbsp;distinctive&nbsp; &nbsp;character&nbsp; &nbsp;or&nbsp; &nbsp;repute&nbsp; &nbsp;of&nbsp; &nbsp;the registered trade mark.&nbsp; We find that the High Court has erred in&nbsp; &nbsp;entering&nbsp; &nbsp;into&nbsp; &nbsp;the&nbsp; &nbsp;discussion&nbsp; &nbsp;as&nbsp; &nbsp;to&nbsp; &nbsp;whether&nbsp; &nbsp;the respondents­defendants and the appellant­plaintiff cater to different classes of customers and as to whether there was likely to be confusion in the minds of consumers with regard to the hotel of the respondents­defendants belonging to the same group as of the appellant­plaintiff’s.&nbsp; &nbsp;As held by this Court in the case of Ruston &amp; Hornsby Limited (supra), in an&nbsp; &nbsp;action&nbsp; &nbsp;for&nbsp; &nbsp;infringement,&nbsp; &nbsp;once&nbsp; &nbsp;it&nbsp; &nbsp;is&nbsp; &nbsp;found&nbsp; &nbsp;that&nbsp; &nbsp;the defendant’s&nbsp; &nbsp;trade&nbsp; &nbsp;mark&nbsp; &nbsp;was&nbsp; &nbsp;identical&nbsp; &nbsp;with&nbsp; &nbsp;the&nbsp; &nbsp;plaintiff’s registered trade mark, the Court could not have gone into an enquiry&nbsp; &nbsp;whether&nbsp; &nbsp;the&nbsp; &nbsp;infringement&nbsp; &nbsp;is&nbsp; &nbsp;such&nbsp; &nbsp;as&nbsp; &nbsp;is&nbsp; &nbsp;likely&nbsp; &nbsp;to deceive or cause confusion.&nbsp; &nbsp;In an infringement action, an injunction would be issued as soon as it is proved that the defendant is improperly using the trade mark of the plaintiff.&nbsp;</b></p><p><b>59. The perusal of Section 30(1) of the said Act would reveal that for availing the benefit of Section 30 of the said Act, it is required&nbsp; &nbsp;that&nbsp; &nbsp;the&nbsp; &nbsp;twin&nbsp; &nbsp;conditions,&nbsp; &nbsp;i.e.,&nbsp; &nbsp;the&nbsp; &nbsp;use&nbsp; &nbsp;of&nbsp; &nbsp;the impugned trade mark being in accordance with the honest practices in industrial or commercial matters, and that such a&nbsp; &nbsp;use&nbsp; &nbsp;is&nbsp; &nbsp;not&nbsp; &nbsp;such&nbsp; &nbsp;as&nbsp; &nbsp;to&nbsp; &nbsp;take&nbsp; &nbsp;unfair&nbsp; &nbsp;advantage&nbsp; &nbsp;of&nbsp; &nbsp;or&nbsp; &nbsp;be detrimental to the distinctive character or repute of the trade mark, are required to be fulfilled.&nbsp; It is again to be noted that in sub­section (1) of Section 30 of the said Act, after clause (a), the word used is ‘and’, like the one used in sub­section (4) of Section 29 of the said Act, in contradistinction to the word ‘or’ used in sub­section (2) of Section 29 of the said Act. The High Court has referred only to the condition stipulated in clause (b) of sub­section (1) of Section 30 of the said Act ignoring the fact that, to get the benefit of sub­section (1) of Section 30 of the said Act, both the conditions had to be fulfilled.&nbsp; &nbsp;Unless&nbsp; &nbsp;it&nbsp; &nbsp;is&nbsp; &nbsp;established&nbsp; &nbsp;that&nbsp; &nbsp;such&nbsp; &nbsp;a&nbsp; &nbsp;use&nbsp; &nbsp;is&nbsp; &nbsp;in accordance&nbsp; &nbsp;with&nbsp; &nbsp;the&nbsp; &nbsp;honest&nbsp; &nbsp;practices&nbsp; &nbsp;in&nbsp; &nbsp;industrial&nbsp; &nbsp;or commercial matters, and is not to take unfair advantage or is not detrimental to the distinctive character or repute of the trade mark, one could not get benefit under Section 30(1) of the said Act. As such, the finding in this regard by the High Court is also erroneous.&nbsp;</b></p><p><b>71. We are, therefore, of the considered view that the High Court fell in error on various counts.&nbsp; The present case stood squarely covered by the provisions of Section 29(2)(c) read with&nbsp; &nbsp;sub­section&nbsp; &nbsp;(3)&nbsp; &nbsp;of&nbsp; &nbsp;Section&nbsp; &nbsp;29&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;said&nbsp; &nbsp;Act.&nbsp; &nbsp; &nbsp;The present case also stood covered under sub­sections (5) and (9) of Section 29 of the said Act.&nbsp; The High Court has erred in taking&nbsp; &nbsp;into&nbsp; &nbsp;consideration&nbsp; &nbsp;clause&nbsp; &nbsp;(c)&nbsp; &nbsp;of&nbsp; &nbsp;sub­section&nbsp; &nbsp;(4)&nbsp; &nbsp;of Section 29 of the said Act in isolation without noticing other parts of the said sub­section (4) of Section 29 of the said Act and the import thereof. The High Court has failed to take into consideration that in order to avail the benefit of Section 30 of the said Act, apart from establishing that the use of the impugned&nbsp; &nbsp;trade&nbsp; &nbsp;mark&nbsp; &nbsp;was&nbsp; &nbsp;not&nbsp; &nbsp;such&nbsp; &nbsp;as&nbsp; &nbsp;to&nbsp; &nbsp;take&nbsp; &nbsp;unfair advantage of or is detrimental to the distinctive character or repute of the trade mark, it is also necessary to establish that such a use is in accordance with the honest practices in industrial&nbsp; &nbsp;or&nbsp; &nbsp;commercial&nbsp; &nbsp;matters.&nbsp; &nbsp;As&nbsp; &nbsp;such,&nbsp; &nbsp;we&nbsp; &nbsp;have&nbsp; &nbsp;no hesitation to hold that the High Court was not justified in interfering with the well­reasoned order of the trial court.&nbsp;</b></p><p><b>73. In the result, the appeal is allowed</b></p>', '4ea5b16067e59880f907e010804cc322.jpg', '7b09f52fecd57b2514bc7be5d0e2cba7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-19', 1, '', '', '2022-01-20 02:43:53', '2022-01-20 02:43:53');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1281, 'HUluXPCtdA0nKAY99EMQhfvsl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Trademarks Act. To get benefit of Section 30, both conditions - honest practice in industrial or commercial matters and absence of unfair advantage or detrimental to trademark must be proved. Supreme Court. ', '<p><b>Renaissance Hotel Holdings Inc vs B. Vijaya sai and others&nbsp;</b></p><p><b>Civil Appeal 404 of 2022 decided on 19 January 2022</b></p><p><b>Justice L. Nageswara Rao, Justice B.R.Gavai and Justice B.V. Nagarathna&nbsp;</b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/25790/25790_2019_35_1501_32774_Judgement_19-Jan-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/25790/25790_2019_35_1501_32774_Judgement_19-Jan-2022.pdf</a></b></p><p><b>42. It&nbsp; &nbsp;could&nbsp; &nbsp;thus&nbsp; &nbsp;be&nbsp; &nbsp;seen&nbsp; &nbsp;that&nbsp; &nbsp;in&nbsp; &nbsp;all&nbsp; &nbsp;legal&nbsp; &nbsp;proceedings relating to trade mark registered under the said Act, the original registration of the trade mark and of all subsequent assignments and transmissions of the trade mark shall be prima facie evidence of the validity thereof</b></p><p><b>43. The legislative scheme is clear that when the mark of the defendant is identical with the registered trade mark of the plaintiff and the goods or services covered are similar to the ones covered by such registered trade mark, it may be necessary to prove that it is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark.&nbsp; &nbsp;Similarly, when the trade mark of the plaintiff is similar to the registered trade mark of the defendant and the goods or services covered by such registered trade mark are identical or similar to the goods or services covered by such registered trade mark, it may again be necessary to establish that it is likely to cause confusion on the part of the public.&nbsp; However, when the trade mark of the defendant is identical with the registered trade mark of the plaintiff and that the goods or services of the defendant are identical with the goods or services covered by registered trade mark, the Court shall presume that it is likely to cause confusion on the part of the public.&nbsp;</b></p><p><b>45.It could thus be seen that this Court has pointed out the distinction between the causes of action and right to relief in suits for&nbsp; &nbsp;passing&nbsp; &nbsp;off&nbsp; &nbsp;and&nbsp; &nbsp;for&nbsp; &nbsp;infringement&nbsp; &nbsp;of registered trade mark.&nbsp; It has been held that the essentials of a&nbsp; passing&nbsp; off&nbsp; &nbsp;action&nbsp; &nbsp;with&nbsp; &nbsp;those&nbsp; &nbsp;in&nbsp; &nbsp;respect&nbsp; &nbsp;of&nbsp; &nbsp;an&nbsp; &nbsp;action complaining of an infringement of a registered trade mark, cannot be equated.&nbsp; It has been held that though an action for passing off is a Common Law remedy being an action for deceit, that is, a passing off by a person of his own goods as those of another; the action for infringement is a statutory right conferred on the registered proprietor of a registered trade mark for the vindication of the exclusive rights to the use of the trade mark in relation to those goods. The use by the defendant of the trade mark of the plaintiff is a sine qua non in the case of an action for infringement. It has further been held that if the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get­up, packing and other writing or marks on the goods or on the packets in which he offers his goods for sale show marked differences, or indicate clearly a trade origin different from that of the registered proprietor of the mark, would be immaterial in a case of infringement of the trade mark, whereas in the case of a passing off, the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff.&nbsp;</b></p><p><b>47.It could thus be seen that this Court again reiterated that the question to be asked in an infringement action is as to whether the defendant is using a mark which is same as, or which is a colourable imitation of the plaintiff’s registered trade mark.&nbsp; It has further been held that though the get up of&nbsp; &nbsp;the&nbsp; &nbsp;defendant’s&nbsp; &nbsp;goods&nbsp; &nbsp;may&nbsp; &nbsp;be&nbsp; &nbsp;so&nbsp; &nbsp;different&nbsp; &nbsp;from&nbsp; &nbsp;the plaintiff’s goods and the prices may also be so different that there would be no probability of&nbsp; deception&nbsp; of&nbsp; the public, nevertheless&nbsp; &nbsp;even&nbsp; &nbsp;in&nbsp; &nbsp;such&nbsp; &nbsp;cases,&nbsp; &nbsp;i.e.,&nbsp; &nbsp;in&nbsp; &nbsp;an&nbsp; &nbsp;infringement action, an injunction would be issued as soon as it is proved that the defendant is improperly using the plaintiff’s mark.&nbsp; It has been reiterated that no case of actual deception nor any actual damage needs to be proved in such cases. This Court has further held that though two actions are closely similar in some respects, in an action for infringement, where the defendant’s trade mark is identical with the plaintiff’s trade mark, the Court will not enquire whether the infringement is such as is likely to deceive or cause confusion.&nbsp;</b></p><p><b>49. However, the High Court, while reversing the decree of injunction&nbsp; &nbsp;granted&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;trial&nbsp; &nbsp;court,&nbsp; &nbsp;has&nbsp; &nbsp;held&nbsp; &nbsp;that&nbsp; &nbsp;the appellant­plaintiff had failed to establish that the trade mark has reputation in India and that the respondents­defendants’ use&nbsp; &nbsp;thereof&nbsp; &nbsp;was&nbsp; &nbsp;honest&nbsp; &nbsp;and&nbsp; &nbsp;further&nbsp; &nbsp;that&nbsp; &nbsp;there&nbsp; &nbsp;was&nbsp; &nbsp;no confusion likely to be created in the minds of the consumers inasmuch as the class of consumers was totally different.&nbsp; It appears that the High Court has relied only on clause (c) of sub­section (4) of Section 29 of the said Act to arrive at such a conclusion.&nbsp;</b></p><p><b>50. We find that the High Court has totally erred in taking into consideration only clause (c) of sub­section (4) of Section 29 of the said Act.&nbsp; &nbsp;It is to be noted that, whereas, the legislature has used the word ‘or’ after clauses (a) and (b) in sub­section (2) of Section 29 of the said Act, it has used the word&nbsp; &nbsp;‘and’&nbsp; &nbsp;after&nbsp; &nbsp;clauses&nbsp; &nbsp;(a)&nbsp; &nbsp;and&nbsp; &nbsp;(b)&nbsp; &nbsp;in&nbsp; &nbsp;sub­section&nbsp; &nbsp;(4)&nbsp; &nbsp;of Section 29 of the said Act.&nbsp; &nbsp;It could thus be seen that the legislative intent is very clear.&nbsp; Insofar as sub­section (2) of Section 29 of the said Act is concerned, it is sufficient that any of the conditions as provided in clauses (a), (b) or (c) is satisfied.&nbsp; &nbsp;</b></p><p><b>52. The perusal of sub­section (4) of Section 29 of the said Act would reveal that the same deals with an eventuality when the impugned trade mark is identical with or similar to the registered trade mark and is used in relation to goods or services which are not similar to those for which the trade mark is registered. Only in such an eventuality, it will be necessary to establish that the registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark. The legislative intent is clear by employing the word “and” after clauses (a) and (b) in sub­section (4) of Section 29 of the said Act.&nbsp; Unless all the three conditions are satisfied, it will not be open to the proprietor of the registered trade mark to sue for infringement when though the impugned trade mark is identical with the registered trade mark, but is used in relation to goods or services which are not similar to those for which the trade mark is registered.&nbsp; &nbsp;To sum up, while sub­section (2) of Section 29 of the said Act deals with those situations where the trade mark is identical or similar and the goods covered by such a trade mark are identical or similar, sub­section (4) of Section 29 of the said Act deals with situations where though the trade mark is identical, but the goods or services are not similar to those for which the trade mark is registered.&nbsp;&nbsp;</b></p><p><b>54.In these circumstances, we are of the considered view that it was not open for the High Court to have entered into the discussion as to whether the appellant­plaintiff’s trade mark had a reputation in India and the use of the mark without&nbsp; &nbsp;due&nbsp; &nbsp;cause&nbsp; &nbsp;takes&nbsp; &nbsp;unfair&nbsp; &nbsp;advantage&nbsp; &nbsp;of&nbsp; &nbsp;or&nbsp; &nbsp;is detrimental&nbsp; &nbsp;to,&nbsp; &nbsp;the&nbsp; &nbsp;distinctive&nbsp; &nbsp;character&nbsp; &nbsp;or&nbsp; &nbsp;repute&nbsp; &nbsp;of&nbsp; &nbsp;the registered trade mark.&nbsp; We find that the High Court has erred in&nbsp; &nbsp;entering&nbsp; &nbsp;into&nbsp; &nbsp;the&nbsp; &nbsp;discussion&nbsp; &nbsp;as&nbsp; &nbsp;to&nbsp; &nbsp;whether&nbsp; &nbsp;the respondents­defendants and the appellant­plaintiff cater to different classes of customers and as to whether there was likely to be confusion in the minds of consumers with regard to the hotel of the respondents­defendants belonging to the same group as of the appellant­plaintiff’s.&nbsp; &nbsp;As held by this Court in the case of Ruston &amp; Hornsby Limited (supra), in an&nbsp; &nbsp;action&nbsp; &nbsp;for&nbsp; &nbsp;infringement,&nbsp; &nbsp;once&nbsp; &nbsp;it&nbsp; &nbsp;is&nbsp; &nbsp;found&nbsp; &nbsp;that&nbsp; &nbsp;the defendant’s&nbsp; &nbsp;trade&nbsp; &nbsp;mark&nbsp; &nbsp;was&nbsp; &nbsp;identical&nbsp; &nbsp;with&nbsp; &nbsp;the&nbsp; &nbsp;plaintiff’s registered trade mark, the Court could not have gone into an enquiry&nbsp; &nbsp;whether&nbsp; &nbsp;the&nbsp; &nbsp;infringement&nbsp; &nbsp;is&nbsp; &nbsp;such&nbsp; &nbsp;as&nbsp; &nbsp;is&nbsp; &nbsp;likely&nbsp; &nbsp;to deceive or cause confusion.&nbsp; &nbsp;In an infringement action, an injunction would be issued as soon as it is proved that the defendant is improperly using the trade mark of the plaintiff.&nbsp;</b></p><p><b>59. The perusal of Section 30(1) of the said Act would reveal that for availing the benefit of Section 30 of the said Act, it is required&nbsp; &nbsp;that&nbsp; &nbsp;the&nbsp; &nbsp;twin&nbsp; &nbsp;conditions,&nbsp; &nbsp;i.e.,&nbsp; &nbsp;the&nbsp; &nbsp;use&nbsp; &nbsp;of&nbsp; &nbsp;the impugned trade mark being in accordance with the honest practices in industrial or commercial matters, and that such a&nbsp; &nbsp;use&nbsp; &nbsp;is&nbsp; &nbsp;not&nbsp; &nbsp;such&nbsp; &nbsp;as&nbsp; &nbsp;to&nbsp; &nbsp;take&nbsp; &nbsp;unfair&nbsp; &nbsp;advantage&nbsp; &nbsp;of&nbsp; &nbsp;or&nbsp; &nbsp;be detrimental to the distinctive character or repute of the trade mark, are required to be fulfilled.&nbsp; It is again to be noted that in sub­section (1) of Section 30 of the said Act, after clause (a), the word used is ‘and’, like the one used in sub­section (4) of Section 29 of the said Act, in contradistinction to the word ‘or’ used in sub­section (2) of Section 29 of the said Act. The High Court has referred only to the condition stipulated in clause (b) of sub­section (1) of Section 30 of the said Act ignoring the fact that, to get the benefit of sub­section (1) of Section 30 of the said Act, both the conditions had to be fulfilled.&nbsp; &nbsp;Unless&nbsp; &nbsp;it&nbsp; &nbsp;is&nbsp; &nbsp;established&nbsp; &nbsp;that&nbsp; &nbsp;such&nbsp; &nbsp;a&nbsp; &nbsp;use&nbsp; &nbsp;is&nbsp; &nbsp;in accordance&nbsp; &nbsp;with&nbsp; &nbsp;the&nbsp; &nbsp;honest&nbsp; &nbsp;practices&nbsp; &nbsp;in&nbsp; &nbsp;industrial&nbsp; &nbsp;or commercial matters, and is not to take unfair advantage or is not detrimental to the distinctive character or repute of the trade mark, one could not get benefit under Section 30(1) of the said Act. As such, the finding in this regard by the High Court is also erroneous.&nbsp;</b></p><p><b>71. We are, therefore, of the considered view that the High Court fell in error on various counts.&nbsp; The present case stood squarely covered by the provisions of Section 29(2)(c) read with&nbsp; &nbsp;sub­section&nbsp; &nbsp;(3)&nbsp; &nbsp;of&nbsp; &nbsp;Section&nbsp; &nbsp;29&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;said&nbsp; &nbsp;Act.&nbsp; &nbsp; &nbsp;The present case also stood covered under sub­sections (5) and (9) of Section 29 of the said Act.&nbsp; The High Court has erred in taking&nbsp; &nbsp;into&nbsp; &nbsp;consideration&nbsp; &nbsp;clause&nbsp; &nbsp;(c)&nbsp; &nbsp;of&nbsp; &nbsp;sub­section&nbsp; &nbsp;(4)&nbsp; &nbsp;of Section 29 of the said Act in isolation without noticing other parts of the said sub­section (4) of Section 29 of the said Act and the import thereof. The High Court has failed to take into consideration that in order to avail the benefit of Section 30 of the said Act, apart from establishing that the use of the impugned&nbsp; &nbsp;trade&nbsp; &nbsp;mark&nbsp; &nbsp;was&nbsp; &nbsp;not&nbsp; &nbsp;such&nbsp; &nbsp;as&nbsp; &nbsp;to&nbsp; &nbsp;take&nbsp; &nbsp;unfair advantage of or is detrimental to the distinctive character or repute of the trade mark, it is also necessary to establish that such a use is in accordance with the honest practices in industrial&nbsp; &nbsp;or&nbsp; &nbsp;commercial&nbsp; &nbsp;matters.&nbsp; &nbsp;As&nbsp; &nbsp;such,&nbsp; &nbsp;we&nbsp; &nbsp;have&nbsp; &nbsp;no hesitation to hold that the High Court was not justified in interfering with the well­reasoned order of the trial court.&nbsp;</b></p><p><b>73. In the result, the appeal is allowed</b></p>', '7824ad2870eb448f9ad5bbc612b56470.jpeg', 'e87214cfcb23b4343dde042565a6cf36.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-19', 1, '', '', '2022-01-20 02:58:38', '2022-01-20 02:58:38'),
(1282, 'KVAItioopLA1nFr1tLLupoAF9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Competition Commission can investigate anti-competition element in the lottery business though lottery is res extra commercium. Supreme Court. ', '<p><b>Competition Commission of India vs State of Mizoram and others.&nbsp;<br>Civil Appeal 10820-10822 of 2014 decided on 19 January 2022<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice Sanjay Kishan Kaul and&nbsp;Justice M.M. Sundresh&nbsp;</b><b><br></b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2014/31973/31973_2014_36_1501_32612_Judgement_19-Jan-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2014/31973/31973_2014_36_1501_32612_Judgement_19-Jan-2022.pdf</a><br></b></p><p><b>1. A complaint received by the Competition Commission of India from respondent No.4 seeking investigation\r\nunder the Competition Act, 2002 in respect of State Lottery run by the State of\r\nMizoram&nbsp; has given rise to the present dispute. The\r\njurisdiction of CCI to inquire into allegations of bid rigging, collusive\r\nbidding, and cartelisation in the tender process for appointment of selling\r\nagents and distributors for lotteries organised in the State of Mizoram has\r\nbeen challenged in the present proceedings by the successful bidders, and\r\nto a much lesser extent, by the State of Mizoram.<br></b></p><p><b>38. We are in agreement with the line of arguments advanced by Mr.\r\nRajshekhar Rao, learned senior counsel for the CCI where he has\r\nsuccinctly sought to point out that the concern of the CCI was not at all\r\nwith the carrying out, regulation or prohibition of the lottery business as\r\nwas governed by the Regulation Act. Rather, the concern was limited to\r\nthe role assigned to the CCI under the Competition Act, and in the&nbsp;context of the EoI was limited to examining any perceived bid rigging in\r\nthe tendering process for appointment of selling agents and distributors\r\nfor the lottery business. There was no conflict in the interplay of the two\r\nActs that even needed reconciliation or prohibition against either one, as\r\nthe limited scrutiny was to examine the mandate of Section 3(1) read\r\nwith Section 3(3) of the Competition Act. Lotteries may be a regulated\r\ncommodity and may even be res extra commercium. That would not take\r\naway the aspect of something which is anti-competition in the context of\r\nthe business related to lotteries.\r\n&nbsp;<br></b></p><p><b>39. We must take note of the expansive definition of ‘Service’ under\r\nSection 2(u) of the Competition Act. It means “service of any\r\ndescription”, which is to be made available to potential users. The\r\npurchaser of a lottery ticket is a potential user and a service is being\r\nmade available by the selling agents in the context of the Competition\r\nAct. Suffice for us to say the inclusive mentioning does not inhibit the\r\nlarger expansive definition. The lottery business can continue to be\r\nregulated by the Regulation Act. However, if in the tendering process\r\nthere is an element of anti-competition which would require investigation\r\nby the CCI, that cannot be prevented under the pretext of the lottery&nbsp;business being res extra commercium, more so when the State\r\nGovernment decides to deal in lotteries.<br></b></p><p><b>41. We are, thus, of the view that there was really no need for the High\r\nCourt to proceed in the manner and in the direction it sought to proceed.\r\nThe correct approach, more so once the statement was made on behalf of\r\nthe CCI, would have been to close the proceedings filed by the State\r\nGovernment and let the private parties face the ultimate decision of the\r\nCCI. If they were aggrieved by any adverse decision of the CCI they\r\nwere entitled to avail of the appellate remedy under Section 53B of the\r\nCompetition Act.\r\n</b></p><p><b>42. The complaint having been made by respondent No.4 under\r\nSection 19 of the Competition Act, which provides that the Commission\r\n“may” inquire into certain agreements and dominant position of\r\nenterprise as envisaged under sub-section (1) of Section 3 and sub&nbsp;section (1) of Section 4 of the Competition Act. The CCI found out a\r\nprima facie case for investigation by the DG under Section 3(1) of the\r\nCompetition Act, the DG opined adversely, and the CCI issued notice\r\ngiving an opportunity to the affected parties to place their stand before it.\r\nThis process ought to have been permitted to conclude with the right\r\navailable to the affected parties to avail of the appellate remedy under\r\nSection 53B of the Competition Act.<br></b></p><p><b><br></b></p><p><br></p>', '60de37d37e8a26cfe226ab467f9d1172.JPG', '91db91c4a24a139ac975775d025515c9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-19', 1, '', '', '2022-01-20 04:12:37', '2022-01-20 04:12:37');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1283, '68Ry1ZQTYW7LuskFG7vt3HiqJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'It\'s time to restore confidence of the people in independent judiciary\'\'.  Karnataka High Court charges Tahshildar for contempt of Court for not entering name of the farmer in revenue records despite court orders.', '<p><b><span style=\"color: rgb(33, 37, 41); font-family: \" open=\"\" sans\",=\"\" sans-serif;=\"\" font-size:=\"\" medium;\"=\"\">Maranna and others vs&nbsp;</span><span style=\"color: rgb(33, 37, 41); font-family: \" open=\"\" sans\",=\"\" sans-serif;=\"\" font-size:=\"\" medium;\"=\"\">Dhanalakshmi and others.&nbsp;<br></span>Contempt of Court Case 560 of 2021. Daily order dated 13 January 2021.&nbsp;</b></p><p><b>It is an unfortunate case where the Officers of the Government have ditched the Court orders deliberately thereby invited&nbsp; initiation of civil contempt in the present case.</b></p><p><b>2.<span style=\"white-space:pre\">	</span>The complainant has filed the present contempt petition to take action against accused No.1-Smt. Dhanalakshmi, the previous Special Tahasildar and accused No.2-Smt. Varsha Wodeyar, the present Special Tahsildar, Bengaluru North Taluk, Bengaluru for willful and deliberate disobedience of the order dated 24.2.2021 passed in Writ Petition No.2902/2021, wherein the learned Single Judge of this Court while disposing of the writ petition directed Tahsildar/Respondent No.3 therein to implement the order dated 30.5.2018 passed by the Assistant Commissioner-respondent No.2 therein read with the order dated 16.7.2014 passed by the Tahsildar and directions issued by this Court on 20.2.2017 within a period of two months from the date of receipt of a copy of the said order.</b></p><p><b>3.<span style=\"white-space:pre\">	</span>It is the case of the complainants that the land bearing Sy.No.26 measuring 29 guntas situated at Srikantapura Village, Dasanapura Hobli, Bengaluru North Taluk was regranted in favour of one Mr. Maranna, the father of complainant No.1, but the land bearing Sy.No.25 was not granted as it was shown as Kharab land, and in the cultivator\'s column it was shown that the grandfather of complainant No.1 was cultivating the land as tenant from Jodidaar and was in possession and enjoyment of the said property.&nbsp; It is the further case of the complainant that on 5.5.1997, the Special Deputy Commissioner deleted the names of the complainants/ancestors name in respect of the land bearing Sy.No.25 in the revenue records which was the subject matter of writ petition before this Court in W.P.No.25665/1997 and this Court by the order dated 25.5.1999 granted six month\'s time to file a suit before the Civil Court to establish that the land is a cultivable land including title of the property and till such filing of suit, status-quo order was granted in respect of the schedule property.&nbsp; In compliance of the order dated 25.5.1999 passed by this Court, the complainants filed O.S.No.85/2000 before the Court of Senior Division, Bengaluru Rural District, Bengaluru, seeking declaration of title by adverse possession; and a direction to maintain the names in the revenue records in the name of the plaintiffs and the said suit was decreed on 16.3.2002.&nbsp; In pursuance of the said judgment and decree, the complainants approached the concerned authorities/accused by submitting a representation along with judgment and decree passed by the Civil Court, but the same was rejected on 5.8.2008 by the respondent-Tahsildar by issuing an endorsement.</b></p><p><b>4.<span style=\"white-space:pre\">	</span>Aggrieved by the endorsement dated 5.8.2008 issued by the Tahsildar, the complainants filed Writ Petition No. 7020/2009 and the learned Single Judge of this Court after hearing both parties including the Special Government Advocate by the order dated 1.6.2010 directed that the revenue entries shall be made after six months subject to the judgment and decree passed by the Civil Court.&nbsp; The State Government filed a Miscellaneous Petition in Misc.P.81/2009 for setting aside the judgment and decree dated 16.3.2002 passed in O.S.No.85/2000, but the same was rejected by the order dated 20.6.2012.&nbsp; Thereafter, the complainants filed an application before the Tahsildar on 8.11.2012 for entering their names in the land records in respect of land bearing Sy.No.25 measuring 29 guntas situated at Srikantapura Village, Dasanapura Hobli, Bengaluru North Taluk, Bengaluru in terms of the judgment and decree dated 16.3.2002 passed by the Civil Court in O.S.No.85/2000 along with a copy of the said judgment as well as the order dated 20.6.2012 passed in Misc.P.No.81/2009.&nbsp; The jurisdictional Tahsildar by the order dated 16.7.2014 issued a direction to make entries in respect of Sy.No.25&nbsp; measuring 29 guntas as per the judgment and decree dated 16.3.2002 passed in O.S.No.85/2000 and the order dated 20.6.2012 passed in Misc.P.81/2009.&nbsp; Inspite of the same, as the entries were not changed, by means of another order dated 25.3.2015, the Tahsildar referred the matter to the Special Deputy Commissioner, Vigilance, Bengaluru Urban District, Bengaluru.&nbsp; Subsequently, on 17.6.2015, the Tahsildar passed another order directing that the Khatha shall be effected based on various orders passed in the original suit, miscellaneous petition and writ petitions.&nbsp; Accordingly, the Assistant Commissioner by the order dated 6.6.2016 directed the Special Tahsildar, Bengaluru North Taluk, Bengaluru to implement the judgment and decree passed by the Civil Court in O.S.No.85/2000.&nbsp;&nbsp;</b></p><p><b>5.<span style=\"white-space:pre\">	</span>Inspite of various orders passed in favour of the complainants, there being no action taken by the accused, the complainants again approached this Court for the second time by filing a writ petition in W.P.No.57864/2016.&nbsp; Based on the undertaking given by the learned Additional Government Advocate that if three months\' time is granted, the order dated 16.7.2014 passed by the Tahsildar would be implemented, by the order, dated 20.2.2017 disposed off the writ petition with a direction to the respondents therein i.e., Special Tahsildar, Bengaluru North Taluk; Revenue Inspector and Village Accountant of Dasanapura Hobli, Bengaluru North Taluk, Bengaluru to implement the order dated 16.7.2014 passed by the Tahsildar by changing the entry in the revenue records in accordance with law as expeditiously as possible.&nbsp;&nbsp;</b></p><p><b>6.<span style=\"white-space:pre\">	</span>Thereafter, one Sri Venkatesh M., filed a petition i.e., L.G.C.(P) No.1425/2017 before the Karnataka Land Grabbing Prohibition Special Court, Bengaluru against the present complainants and others for taking action against them in accordance with law.&nbsp; The said complaint was dismissed on 31.1.2018 with an observation that either the petitioner-Sri Venkatesh M., or the Tahsildar, Bengaluru North Taluk can initiate action against the present complainants for an offence of land grabbing and in otherwords the petitioner-Sri Venkatesh M., can renew his attempt then, but as of that date, cognizance for the said offence could not be taken against the complainants herein under the facts and circumstances before the Court.&nbsp;&nbsp;</b></p><p><b>7.<span style=\"white-space:pre\">	</span>In the meantime, Srikantapura Village Panchayath, Anchepalya village, Dasanapura Hobli, Bengaluru North Taluk, represented by its President, Sri Venkatesh M., filed appeal i.e., RA/BN/48/2017-18 against the Special Tahsildar, Bengaluru North Sub-Division, Bengaluru, and complainants against the order dated 16.7.2015 passed by the Special Tahsildar in respect of the property in question.&nbsp; The Assistant Commissioner, Bengaluru North Sub-Division, Bengaluru, by the order dated 30th May, 2018 dismissed the appeal directing the Special Tahsildar, Bengaluru North Taluk, Bengaluru to mutate the name of the complainants jointly in respect of the land bearing Sy.No.25 measuring 29 guntas situated at Srikantapura Village, Dasanapura Hobli, Bengaluru North Taluk within 30 days from the date of receipt of the said order.&nbsp; Inspite of the said order, the Tahsildar has not effected the entries.&nbsp;&nbsp;</b></p><p><b>8.<span style=\"white-space:pre\">	</span>Hence, one more writ petition i.e., W.P.No.2902/2021 came to be filed by the present complainants before this Court and the learned Single Judge by the order dated 24th February, 2021 while disposing of the writ petition directed the Tahsildar/respondent No.3 therein to implement the order dated 30.5.2018 passed by the Assistant Commissioner read with order dated 16.7.2014 passed by the Tahsildar as well as the direction of this Court dated 20.2.2017 within a period of two months from the date of receipt of that order, but still the Tahsildar has not complied with the said order.&nbsp; Therefore, the present contempt petition came to be filed by the complainants on 26.7.2021 for taking action against the accused under the provisions of Sections 11 and 12 of the Contempt of Courts Act, 1971 r/w Article 215 of the Constitution of India for willful and deliberate disobedience of the orders stated supra.</b></p><p><b>9.<span style=\"white-space:pre\">	</span>This Court by the order dated 14.9.2021 granted three weeks time for compliance of the directions contained in the order dated 24.2.2021 made in Writ Petition No.2902/2021, but the same was not complied.&nbsp; Again the matter was posted on 4.10.2021 and at the request of the learned HCGP, the matter was adjourned to 21.10.2021 and on 21.10.2021, since none appeared the matter was adjourned.&nbsp; On 28.10.2021, the present Special Tahsildar, Smt. Varsha Wodeyar, appeared before the Court and on her instruction, the learned High Court Government Pleader submitted that the orders of the Court would be complied within thirty days subject to initiation of proceedings.&nbsp; As such the matter was adjourned to 12.1.2022 for filing compliance affidavit.&nbsp; Even on 12.1.2022 when the matter was posted for compliance, in the pre-lunch session, at the request of the learned Additional Government Advocate, the matter was passed over to post lunch session.&nbsp; Even at 4.35 p.m., the Tahsildar, who was present,&nbsp; did not comply with the orders passed by this Court.&nbsp; As such, the matter was adjourned to today for hearing and framing of the charge.</b></p><p><b>10.<span style=\"white-space:pre\">	</span>Sri Kiran Kumar, learned High Court Government Pleader for the accused files a&nbsp; &nbsp;compliance affidavit dated 13.1.2021 of Varsha Wodeyar, working as Special Tahsildar, Bengaluru North Taluk, Bengaluru, who has stated that she is working there since 24.6.2021 and after coming to know about the contempt proceedings, she went through the records and found that the land in which a direction was issued a Gunduthopu and as such, the land could not be granted in the name of any individual.&nbsp; She further submitted that in RRT/CR/249.1995-96 DATED 5.5.1998, the matter was called before the Special Deputy Commissioner of Inam, Bengaluru wherein the claim of the complainants was rejected on the basis that the land in question was Gunduthopu;&nbsp; She further submitted that the complainants approached various Courts challenging the order of the Special Deputy Commissioner of Inam suppressing the fact that the land does not fall under the Inam land, but it pertains to Gunduthopu.&nbsp; On 28.10.2021, when the matter was listed before this Court regarding non-compliance of the order passed by this Court, she was present before the Court and she was under the impression that the mutation of the Khata was the subject matter of RANo.136/2021 filed by the State Government against exparte order dated 16.3.2002 passed in the Original Suit 85/2000, where the direction to implement the khatha jointly along with the complainants in respect of the land in question.&nbsp; She was also under the impression that,&nbsp; as per the order dated 28.10.2021 she had to mutate the khatha which would be subject to the result of the appeal&nbsp; &nbsp;filed by the State Government-accused Nos.1 and 2 and if no such relief is granted by the Principal Civil Judge, she was bound to implement the Khata in the name of the complainants.&nbsp; But in the meanwhile in R.A.No.126/2021, an order of status quo was&nbsp; issued on the basis of the documents produced by the Taluk Officer by the Principal Senior Division and JMFC, Bengaluru Rural District.&nbsp; Hence, due to inadvertence, there is some delay in compliance of the orders passed by this Court.&nbsp;</b></p><p><b>11.<span style=\"white-space:pre\">	</span>Accused No.2 has&nbsp; further submitted that subsequent to the order passed by this Court, the State Government filed an appeal i.e., R.A.No.136/2021 before the Principal Senior Division Court challenging the order passed in O.S.No.85/2000 wherein an order was passed on 16.3.2002 which was challenged in the above appeal on 30.10.2021.&nbsp; After hearing the matter on 8.11.2021, an order of status quo was issued in respect of the land in question after proceeding through the records.&nbsp; Therefore, she thought that as the Court had granted status quo, she need not mutate the names of the complainants or take over the possession of the land in question.&nbsp; Therefore, she was under the impression that in order to abide by the law, she had to forfeit or mutate the names of the complainants only after the final order is passed in appeal.&nbsp; Accordingly, she has tendered unconditional and unqualified apology for the delay in compliance of the orders passed by this Court by producing Annexures-R1 series and mutation in respect of the land bearing Sy.No.25 – property in question.</b></p><p><b>12.<span style=\"white-space:pre\">	</span>We have heard the learned Counsel for the parties.</b></p><p><b>13.<span style=\"white-space:pre\">	</span>Sri V. Lakshminarayana, learned Senior Counsel for the complainants contended that inspite of the judgment and decree dated 16.3.2000 made in O.S.No.85/2000 by the Civil Court,&nbsp; decreeing the suit declaring that the complainants are the owners of the property in question by adverse possession and the said decree was not implemented by the Tahsildar inspite of the representation made and thereby, the complainants were forced to file a writ petition i.e., W.P.No.7020/2009 seeking quashing of endorsement dated 5.8.2008.&nbsp; The learned Single Judge of this Court on 1st June, 2010 disposed off the writ petition observing that if the accused have not taken any steps to change the entries, it is for them to place the matter before the Civil Court for early disposal.&nbsp; However, it was made clear that the entries in the revenue records shall be made only after six months which would be subject to the result of the original suit.</b></p><p><b>14.<span style=\"white-space:pre\">	</span>The said order passed by the learned Single Judge of this Court has reached finality as no appeal was filed challenging the same.&nbsp; He would further contend that, since the order passed by the learned Single Judge was not complied, the complainants filed one more writ petition - W.P.No.57864/2016 seeking a writ of mandamus directing to enter their names in the revenue records in respect of the property in question in terms of the judgment and decree passed by the Civil Court.&nbsp; On the concession made by the learned Government Advocate,&nbsp; that if three months’ time is granted, the order of the Tahsildar, dated 16.7.2014 would be implemented, the writ petition was disposed off directing the Tahsildar, Revenue Inspector and Village Accountant to implement the order, but the same was not complied with.&nbsp;&nbsp;</b></p><p><b>15.<span style=\"white-space:pre\">	</span>The learned Senior Counsel for the complainants further contends that Srikantapura village Panchayath filed an appeal – RA/BN/48/2017-18 against the Special Tahsildar, Bengaluru North Sub-Division, Bengaluru, and&nbsp; complainants under the provisions of Section 136(2) of the Karnataka Land Revenue Act challenging the order dated 16.7.2014 passed by the Special Tahsildar.&nbsp; The Assistant Commissioner, Bengaluru North Sub-Division, Bengaluru by the order dated 30th March, 2018 while dismissing the appeal directed the Special Tahsildar, Bengaluru North Taluk, Bengaluru to mutate the names of the complainants with respect to the schedule property.&nbsp; The said orders passed by the Assistant Commissioner and the learned Single Judge of this Court have reached finality.</b></p><p><b>16.<span style=\"white-space:pre\">	</span>The learned Senior Counsel for the complainants further contended that inspite of the orders passed, accused No.2 has shown audacity in not complying with the repeated orders passed by the Tahsildar, Assistant Commissioner, Karnataka Land Grabbing Prohibition Special Court, Bengaluru,&nbsp; as well as this Court on three occasions and therefore, the complainants were compelled to file another writ petition for the fourth time i.e., W.P.No.2902/2001 and the learned Single Judge of this Court disposed of the said writ petition directing the accused/Tahsidar to implement the order dated 30.5.2014 passed by the Assistant Commissioner/respondent No.2 therein read with the order dated 16.7.2014 passed by the Tahsildar and the directions issued by this Court on 20.2.2017&nbsp; in Writ Petition No.57864/2014 within a period of two months from the date of receipt of the order, but still the Tahsildar has not mutated the names of the complainants.&nbsp; Even though on three occasions repeated directions were issued by the learned Single Judge and in the present contempt petition i.e., on 28.10.2021, an opportunity was given to the accused as well as an undertaking was also given by the learned Government Advocate on instruction from accused, who was present before this Court that, she would comply with the orders, the same has not been complied.&nbsp; Therefore, the conduct of the Tahsildar showing disrespect to the orders passed by this Court is nothing, but abuse of process of Court.&nbsp; The orders stated supra passed by the learned Single Judge of this Court as well as the Assistant Commissioner have reached finality and very strangely, the State Government has filed R.A. No.136/2021 after a lapse of 19 years on 29.10.2021.&nbsp; &nbsp;If any order of status quo was granted on 8.1.2021 by the Appellate Authority, in all fairness, the Tahsildar ought to have mutated the names of the complainants in the revenue records and if already the names of the complainants were mutated, the same would always be subject to the result of the appeal.&nbsp; Therefore, he contended that this is a fit case to initiate proceeding for civil contempt for disobedience of the orders passed by this Court against the accused.&nbsp;</b></p><p><b>17.<span style=\"white-space:pre\">	</span>Per Contra, Sri Kiran Kumar, learned High Court Government Pleader though justified the compliance affidavit filed by the Special Tahsildar/accused No.2 stating that since the land in question is Gunduthopu, the same couldn\'t be granted, but was unable to answer&nbsp; as to why the orders passed by the learned Single Judge of this Court on three occasions stated supra were not implemented.&nbsp; It is his only submission that, the compliance affidavit does not depict anything about the said orders.&nbsp; According to him, the present Tahsildar/accused No.2 took charge as Special Tahsildar only on 24.6.2021 and on instructions given by accused No.2, who was present before the Division Bench of this Court headed by the Hon’ble Chief Justice on 28.10.2021, he had made a statement that, the orders would be complied within thirty days and therefore, this is not a fit case to frame charges against the accused.</b></p><p><b>18.<span style=\"white-space:pre\">	</span>In view of the rival contentions raised by the learned Counsel for the parties, the points that would arise for our consideration are:</b></p><p><b>\"i)<span style=\"white-space:pre\">	</span>Whether prima facie the complainants proved that, inspite of the repeated orders passed by this Court in Writ Petition Nos.7020/2009, 57864/2016 and 2902/2021 and the orders passed by the Assistant Commissioner on 30th May, 2018, accused No.2 has willfully disobeyed orders and thereby made out a case to frame charge against her&nbsp; for civil contempt of court within the meaning of Section 2(b) of the Contempt of Courts Act, punishable under Section 12 of the Contempt of Courts Act, in the facts and circumstances of the case?</b></p><p><b>ii)<span style=\"white-space:pre\">	</span>Whether accused No.2 has made out a case to drop the civil contempt proceedings and discharge her, in the facts and circumstances of the present case?\"</b></p><p><b>19.<span style=\"white-space:pre\">	</span>Having heard the learned Counsel for the parties, it is an undisputed fact the complainants are in possession of the land bearing Sy.No.25 measuring 29 guntas situated at Srikantapura Village, Dasanapura Hobli, Bengaluru North Taluk and their names were deleted in the revenue records on 5.5.1997 as per the direction issued by the Special Deputy Commissioners. As such,&nbsp; they approached the Civil Court by filing the original suit in O.S.No.85/2000 to declare that they are the owners by adverse possession.&nbsp; After contest, the Civil Court by the judgment and decree dated 16.3.2992 decreed the suit in favour of the complainants that they are the owners and in possession of the property in question.&nbsp; The said judgment and decree had reached finality.&nbsp; But the Tahsildar has not implemented even on the request made by the complainants.&nbsp; Therefore, the complainants were forced to file the second Writ Petition No.7020 of 2009 to quash the endorsement issued by the Tahsildar dated 05.08.2008.&nbsp; The learned Single Judge disposed off the matter holding that the entries made will always be subject to the result of the order of Civil Court and the revenue entries should be made only after six months, subject to the result of the order passed by the Civil Court.&nbsp; The said order has also not been complied with.&nbsp;&nbsp;</b></p><p><b>20.<span style=\"white-space:pre\">	</span>It is also not in dispute that Srikantapura Village Panchayat, Anchepalya Village, had filed RA/BN/48/2017-18 before the Assistant Commissioner against the Tahsildar and the present complainants aggrieved by the order dated 16.07.2014, in which, the Tahsildar had ordered to&nbsp; mutate the names of the complainants in the revenue entries.&nbsp; The Assistant Commissioner after hearing both the parties by order dated 30.05.2018 dismissed the appeal and directed respondent No.1 - Tahsildar to mutate the names of the complainants in the revenue records, which reads as under:</b></p><p><b>\"The appeal is dismissed and the 1st respondent is directed to mutate in accordance with law in the names of the respondent No.2 o 4 jointly with respect to land bearing Sy.No.25 measuring to an extent of 29 guntas situated at Srikantapura Village, Dasanapura Hobli, Bengaluru North Taluk within 30 days from the date of receipt of this order.\"</b></p><p><b>Admittedly, the said order of the Assistant Commissioner had reached finality.&nbsp; Thereby, the order passed by the Tahsildar dated 16.07.2014 directing to enter the names of the complainants has also reached finality.&nbsp;&nbsp;</b></p><p><b>21.<span style=\"white-space:pre\">	</span>Even though the order passed by the Assistant Commissioner directing to enter the names of the complainants in the revenue records had attained finality, the entries were not made in the revenue records by the 2nd accused.&nbsp; Thereby, the complainants were forced to file one more writ petition before this Court in Writ Petition No.57864 of 2016 and the learned Single Judge on noting the undertaking given by learned Additional Government Advocate that, if three months time is granted, Annexure-F i.e., the order of Tahsildar dated 16.07.2014 will be implemented by changing the names of the complainants in the revenue records, disposed off the petition as under:</b></p><p><b>\"Consequently, the petition is disposed off with a direction to respondent Nos.3, 4 and 5 to implement the order dated 16.07.2014 vide Annexure-F, in accordance with law, as expeditiously as possible.\"</b></p><p><b>The order passed by the learned Single Judge had also reached finality and no appeal was filed against the said order.&nbsp;&nbsp;</b></p><p><b>22.<span style=\"white-space:pre\">	</span>But, the Tahsildar has ignored to comply with all these orders.&nbsp; Thereby, the complainants were forced to file one more writ petition after the order passed by the Civil Court i.e., Writ Petition No.2902 of 2021.&nbsp; This Court after hearing both the parties including the learned High Court Government Pleader on behalf of the State, by order dated 24.02.2021 disposed of the writ petition directing the Tahsildar to implement the order of the Assistant Commissioner dated 30.05.2018 read with the order of the Tahsildar dated 16.07.2014 and the directions passed by the learned Single Judge dated 20.02.2017, which reads as under:</b></p><p><b>\"In light of these facts and circumstances, the Tahsildar/respondent No.3 is hereby directed to implement the order of the Assistant Commissioner/respondent No.2 dated 30.05.2018 read with order of the Tahsildar dated 16.07.2014 and directions of this Court dated 20.02.2017, within a period of 2 months from the date of receipt of this order.&nbsp; Accordingly, writ petition stands disposed of.\"</b></p><p><b>23.<span style=\"white-space:pre\">	</span>In spite of repeated directions issued by the learned Single Judge of this Court on various occasions directing entries to be made in the names of the complainants, all successive Tahsildars have shown audacity by ignoring the judicial orders passed.&nbsp; Thereby, the complainants were forced to file the present contempt petition.&nbsp;</b></p><p><b>24.<span style=\"white-space:pre\">	</span>When this matter was posted before the Division Bench headed by Hon\'ble the Chief Justice on 28.10.2021, this Court passed the order at the instance of learned High Court Government Pleader, on instructions from accused No.2 that the order of the Court will be complied within 30 days, subject to initiation of proceedings, which reads as under:</b></p><p><b><span style=\"white-space:pre\">	</span>\"Accused No.2 is present before the Court.</b></p><p><b><span style=\"white-space:pre\">	</span>Learned Additional Government Advocate, on the basis of instructions received from accused No.2, informs that the order of the Court would be complied with within thirty days subject to initiation of proceedings.&nbsp;</b></p><p><b><span style=\"white-space:pre\">	</span>The case is adjourned.</b></p><p><b><span style=\"white-space:pre\">	</span>List on 12.01.2022.</b></p><p><b><span style=\"white-space:pre\">	</span>Compliance affidavit shall be filed on the next date.\"</b></p><p><b>25.Unfortunately, the 2nd accused - Tahsildar is dare enough that she has not complied with the order passed by Hon\'ble the Chief Justice.&nbsp; Therefore, on 12.01.2022, this Court has passed a detailed order observing that in spite of repeated directions issued, the successive Tahsildar, including the present Tahsildar, have disobeyed the order passed by this Court and have not complied with the orders.&nbsp;&nbsp;</b></p><p><b>26.<span style=\"white-space:pre\">	</span>Again, the matter is posted today.&nbsp; Today, Smt.Varsha Wodeyar, the accused No.2 - Special Tahsildar has filed the affidavit along with Annexure-R1 stating that she took charge since 24.06.2021 and the property in question is a Gunduthopu and could not have been granted in any of the individuals name.&nbsp; She further stated that she was under the impression that though the judgment and decree passed by the Civil Court is as long back as on 16.03.2002 made in OS No.85 of 2000, the same will have to be implemented only after final order passed in RA No.136 of 2021.&nbsp; She was also under the impression that since status quo order was passed in RA No.136 of 2021, which was pending before the Principal Senior Division Judge and JMFC, Bengaluru Rural District, she could not mutate the names of the complainants in the revenue records.&nbsp; In the entire affidavit filed by the accused No.2 - Special Tahsildar, it does not disclose about the orders passed by this Court repeatedly on three occasions as stated supra. It is nothing but the suppression of facts by the 2nd accused -&nbsp; Tahsildar and it shows that she has not come to the Court with clean hands.&nbsp; She has filed a false affidavit before this Court by ignoring the orders passed by this Court, thereby, the same amounts to dereliction of duty.&nbsp;&nbsp;</b></p><p><b>27.<span style=\"white-space:pre\">	</span>A careful reading of the revenue entries Annexure-R1 series and mutation, the name of the Government is shown as \'sarkari karab\'.&nbsp; In the mutation, it is stated that there is stay in RA No.136 of 2021.&nbsp; In the cultivator column 12, both the names of the complainants and&nbsp; sarkari karab are shown.&nbsp; When the Civil Court has declared that the complainants are the owners by adverse possession, until the decree is set aside, it is the bounden duty of the respondents-State authorities to respect the Court orders.&nbsp; The authorities being the sub-ordinate officers of the State, cannot ignore the orders passed by the Civil Court and this Court on three occasions, thereby, majesty of the Court is not protected.&nbsp; Such attitude of the officers cannot be tolerated.&nbsp; Even though the decree was passed in favour of the complainants as long back as on 16.03.2002, even after lapse of more than 20 years, the order of the Civil Court has not been implemented.&nbsp;&nbsp;</b></p><p><b>28.<span style=\"white-space:pre\">	</span>It is the bounden duty of the 2nd accused - Tahsildar to implement the judgment and decree of the Civil Court in view of the provisions of Section 128(4) of the Karnataka Land Revenue Act.&nbsp; The said statutory provision has also been ignored by all the successive Tahsildars including the present 2nd accused- Tahsildar and though it is stated that she did her master degree in sociology, she has no respect for social justice.&nbsp; That is how the officers of the State, time and again, ditching the Court orders and interfering with the administration of justice.&nbsp; It is a clear case of contempt.&nbsp; &nbsp; &nbsp; &nbsp;</b></p><p><b>29.<span style=\"white-space:pre\">	</span>Very strangely, in the affidavit of the 2nd accused for the first time it is stated before this Court that after the orders passed by the learned Single Judge, which had attained finality, RA 136 of 2021 has been filed on 20.09.2021.&nbsp; &nbsp;The Appellate Court has directed to maintain status quo on 08.11.2021 in respect of the land in question.&nbsp; However, the Appellate Court has not prohibited the respondent-Tahsildar not to make entries as already stated supra.&nbsp; It is obvious that the appellant in RA No.136 of 2021 suppressed various directions issued by this court after decree of the suit in OS No.85 of 2000.&nbsp; The Government being the authority are bound to follow the Court orders and they ought to have implemented the same.&nbsp; If in case, they are not happy with the Court orders for any reason, they ought to have challenged the same within time stipulated, but they have failed to do so.&nbsp; It clearly indicates that they have scant respect to the Court orders, thereby, degrading the Judicial System.&nbsp; &nbsp;Even after 75 years of independence, it is unfortunate state of affairs that though the people approach the Court with fond hope that they will get justice, the government officials ignore the Court orders and therefore, God only should save the poor people who approach the Tahsildar for mutation, khata, entries in revenue records etc.,&nbsp;&nbsp;</b></p><p><b>30.<span style=\"white-space:pre\">	</span>It is well settled that, the authorities acting under the Karnataka Land Revenue Act, 1964, are under constitutional duty coupled with power.&nbsp; Every public servant is a trustee of the society and in all facets of public administration, every public servant has to exhibit honesty, integrity, sincerity and faithfulness in implementation of the political, social, economic and constitutional policies to integrate the nation, to achieve excellence and efficiency in the public administration.&nbsp; A public servant entrusted with duty and power to implement the constitutional mandate under Articles 14, 21 and 300 and all inter-related directive principles of state policy under the Constitution, should exhibit transparency in implementation and of accountable for due effectuation of constitutional goals.</b></p><p><b>31.<span style=\"white-space:pre\">	</span>Like any other organ of the State, judiciary is also manned by human beings but the function of judiciary is distinctly different from other organs of the State, in the sense its function is divine. Today, the judiciary is the repository of public faith. It is the trustee of the people. It is the last hope of the people. After every knock at all the doors fail, people approach judiciary as the last resort. It is the only temple worshipped by every citizen of this nation, regardless of religion, caste, sex or place of birth.&nbsp;</b></p><p><b>32.<span style=\"white-space:pre\">	</span>In the present case, admittedly, in spite of judgment and decree passed by the Civil Court in favour of the complainants, they could not able to get implement the decree in their favour and get their names entered in the revenue records, even after lapse of two decades (more than 20 years).&nbsp; This is a classic case, where the Government is not bothering for the Court orders.&nbsp; The attitude of all successive Tahsildars including the present 2nd accused - Tahsildar in not implementing the series of orders passed by the learned Single Judges of this Court as stated supra, is nothing but mockery of justice, because justice is \"the crowning glory\", \"the sovereign mistress\" and \"queen of virtue\" as said by Cicero.&nbsp; It ultimately shatters the faith of the public in judicial system.&nbsp;&nbsp;</b></p><p><b>33.<span style=\"white-space:pre\">	</span>It is true that the judges should not be hyper sensitive in discharging judicial functions, but that does not mean and imply that they ought to maintain angelic silence also.&nbsp; Immaterial it is as to the person, but it is the seat of justice which needs protection; it is the image of judicial system which needs protection.&nbsp; Nobody can be permitted to tarnish the image of the temple of justice.&nbsp; The majesty of the Court shall have to be maintained and there ought not to be any compromise or leniency in that regard.</b></p><p><b>34.<span style=\"white-space:pre\">	</span>The Rule of law is the basic rule of governance of any civilised democratic polity.&nbsp; Our constitutional scheme is based upon the concept of rule of law which we have adopted and given to ourselves.&nbsp; Everyone, whether individually or collectively is unquestionably under the supremacy of law.&nbsp; Whoever the person may be, however high he or she is, no one is above the law notwithstanding how powerful and how rich he or she may be.&nbsp; For achieving the establishment of the rule of law, the Constitution has assigned the special task to the judiciary in the country.&nbsp; It is only through the courts that the rule of law unfolds its contents and establishes its concept.&nbsp; For the judiciary to perform its duties and functions effectively and true to the spirit with which it is sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs.&nbsp;&nbsp;</b></p><p><b>35.<span style=\"white-space:pre\">	</span>After more than 75 years of independence, the judiciary in the country is under a constant threat and being endangered form within and without.&nbsp; The need of the time is of restoring confidence amongst the people for the independence of judiciary.&nbsp; Its impartiality and the glory of law has to be maintained, protected and strengthened.&nbsp; The confidence in the courts of justice, which the people possess, cannot, in any way, be allowed to be tarnished, diminished or wiped out by contumacious behaviour of any person.&nbsp; The only weapon of protecting itself from the onslaught to the institution is the long hand of contempt of court left in the armoury of judicial repository which, when needed.&nbsp; The judiciary is not only the guardian of the rule of law and the third pillar but in fact the central pillar of a democratic State.&nbsp; If the judiciary is to perform its duties and functions effectively and true to the spirit with which they are sacredly entrusted the dignity and authority of the courts have to be respected and protected at all costs.&nbsp;&nbsp;</b></p><p><b>36.<span style=\"white-space:pre\">	</span>For the reasons stated above&nbsp; and on appreciation of the entire material on record, we answer the points raised in the present contempt petition as under:&nbsp;</b></p><p><b>i) The 1st point raised is answered in the affirmative holding that prima facie the complainants proved that, inspite of the repeated orders passed by this Court in Writ Petition Nos.7020/2009, 57864/2016 and 2902/2021 and the orders passed by the Assistant Commissioner on 30th May, 2018, accused No.2 has willfully disobeyed orders and thereby made out a case to frame charge against her&nbsp; for civil contempt of court within the meaning of Section 2(b) of the Contempt of Courts Act, punishable under Section 12 of the Contempt of Courts Act, in the facts and circumstances of the case.</b></p><p><b>ii)<span style=\"white-space:pre\">	</span>The 2nd point raised is answered in the negative holding that accused No.2 has not&nbsp; made out a case to drop the civil contempt proceedings and discharge her, in the facts and circumstances of the present case.</b></p><p><b>37.<span style=\"white-space:pre\">	</span>In the present case, series of orders have been passed by the learned Single Judges of this Court on three occasions i.e., on 01.06.2010, 20.02.2017 and 24.02.2021.&nbsp; Even though no appeal is filed, still the 2nd accused - Tashildar has shown audacity in not implementing the judgment and decree passed by the Civil Court.&nbsp; Nowhere in the affidavit, it is stated with regard to the earlier proceedings, that is, the order passed by the Tahsildar, Assistant Commissioner and even the series of orders passed by the learned Single Judges, which shows the carelessness of the State authorities and its officers.&nbsp; Therefore, it is a fit case to frame charge against the 2nd accused - Tahsildar.&nbsp;</b></p><p><b>The charge is framed against the 2nd accused - Tahsildar and plea has been recorded.&nbsp;</b></p><p><b>Post the matter for trial on 20.01.2022.</b></p><p><b>38.<span style=\"white-space:pre\">	</span>Our experience in contempt matters is that, in every alternative matter, the State is not complying or disobeying the orders and whoever appears before the Court either make a request for adjournment or make a request to file review or writ appeal i.e., not the rule of law in the State of Karnataka.&nbsp; If really, the State Government wants to protect the welfare and rights of the citizens and to clean the administration, it is high time for the Chief Secretary and the learned Advocate General for the State to take note of the following:</b></p><p><b>(i)<span style=\"white-space:pre\">	</span>Whenever the Court passes orders, if the orders are not in consonance with law, the authorities aggrieved should file an appeal within the time stipulated;</b></p><p><b>(ii)<span style=\"white-space:pre\">	</span>Once the order passed by any Court or authority reaches finality, the authorities are bound to implement the order in letter and spirit, unless, it is set aside by the higher authorities or higher courts in the interest of the citizens, to clean administration and in the interest of the State Government.</b></p><p><b>(iii)<span style=\"white-space:pre\">	</span>The aggrieved persons approaches the Court by filing a contempt proceedings as a last resort considering the Court as temple of justice and the authorities unnecessarily cannot be allowed to adopt delay tactics on the ground to file appeal or to file review or to seek time before the Court, which is impermissible.&nbsp;&nbsp;</b></p><p><b>(iv)<span style=\"white-space:pre\">	</span>Even after lapse of 75 years of Independence still, the litigants have been thwarted by approaching the Court.&nbsp; In the present case, even after two decades in spite of the orders passed by the learned Single Judges of this Court.&nbsp; Accused No.2 - Tahsildar is dare enough to ignore the Court orders.&nbsp; This type of arrogance and audacities of the authorities of the State Government has to be deprecated and dealt with seriously to protect the rule of law.&nbsp;</b></p><p><b>(v)<span style=\"white-space:pre\">	</span>If there is no compliance of direction within the time stipulated, it amounts to willful disobedience of the order and will result in contempt of court.&nbsp; Even if there is compliance of order after initiation of contempt proceedings, it will not absolve the officer concerned from his/her liability under the contempt of Court Act.</b></p><p><b>(vi)<span style=\"white-space:pre\">	</span>The Principal Secretaries of the department concerned shall direct initiation of disciplinary proceedings against the erring officers who neglect to comply with the orders of the court willfully.</b></p><p><b>(vii)<span style=\"white-space:pre\">	</span>The misconduct of a Government servant in non compliance of the directions issued by the court shall be dealt with firmly and it shall be entered in the service records of the Government Servant concerned.</b></p><p><b>(viii) If the officer concerned involve in two or more such contempt of court/s by disobeying the court orders, necessary action shall be initiated against him departmentally.</b></p><p><b>(ix)<span style=\"white-space:pre\">	</span>The officer concerned shall be held personally liable for any fine and consequences thereof, as the State Government is not liable to pay fine from out of the tax payers money (citizens).</b></p><p><b>(x)<span style=\"white-space:pre\">	</span>The Chief Secretary is required to take note of the gravity of the situation and may issue necessary circulars/directions&nbsp; to clean up the administration, motivate the officers/officials and to make the officers/officials accountable.&nbsp;&nbsp;</b></p><p><b>(xi)<span style=\"white-space:pre\">	</span>The learned Advocate General is also required to take note of such non compliance of directions/orders within the stipulated time and advise the Government in that regard.</b></p><p><b>(xii)<span style=\"white-space:pre\">	</span>The learned Advocate General is also required to ensure that there is proper and prompt representation of the Government before the court with all required particulars about the matter while issuing the writ of mandamus.</b></p><p><b>(xiii)<span style=\"white-space:pre\">	</span>The Learned Advocate General shall ensure filing of the affidavit of the officer/official concerned who is responsible to comply the order/directions of the court, immediately after service of notice in the contempt petition or on first appearance of the respondent, highlighting as to whether there is compliance of the order/direction or reason for such non-compliance to be stated in clear terms to save precious public Judicial time.</b></p><p><b>(xiv)<span style=\"white-space:pre\">	</span>It is noticed by this court that different grounds are being urged for non-compliance of court orders, even though no such grounds are raised in the writ petition.&nbsp; It is also noticed that endorsements are being issued said to be in compliance of the court order by highlighting new grounds which will again force the complainant to file another writ petition challenging the endorsement concerned, which will result in multiplication of proceedings before this court which is nothing but harassment to the litigant public at large.</b></p><p><b>(xv)<span style=\"white-space:pre\">	</span>When an undertaking/submission is made by the learned counsel representing the Government, with instructions from the officer/official concerned, non-compliance of such undertakings/submission will be viewed very seriously.</b></p><p><b>39.&nbsp; The Registry is directed to send a copy of the order to:&nbsp;</b></p><p><b>(a) the Chief Secretary forthwith to issue proper guidelines to protect the rule of law and to protect the rights of the citizens under Articles 14 and 21 of the Constitution of India and to protect the interest of State and clean the administration.&nbsp;&nbsp;</b></p><p><b>(b)<span style=\"white-space:pre\">	</span>the learned Advocate General with a request to advise the Government to take proper steps for assisting the court in dispensation of Justice,&nbsp; in accordance with law.&nbsp; &nbsp;</b></p><p><b><br></b></p><p><br></p>', '59d96c21fdb9fb08235dc25bd9efde44.JPG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-20', 1, '', '', '2022-01-20 18:56:37', '2022-01-20 12:50:10');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1284, '7vBySEbFvtdiVue6k5oPf0kZq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Provisions of 2013 land acquisition Act are NOT applicable for the acquisitions made under the Bangalore Development Authority Act. Supreme Court approves earlier judgment of the Karnataka High Court.  ', '<p><b>Bangalore Development Authority and another vs The State of Karnataka and others.&nbsp;<br>Miscellaneous Application 161416 of 2019 in Civil Appeal 7661-7663 of 2018 decided on 20 January <br>Justice S. Abdul Nazeer and Justice Sanjiv Khanna&nbsp;</b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/27790/27790_2019_37_1501_32676_Judgement_20-Jan-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/27790/27790_2019_37_1501_32676_Judgement_20-Jan-2022.pdf</a></b></span></p><p><b>7. The BDA Act was enacted by the Legislature of the State\r\nof Karnataka to provide for the establishment of a Development\r\nAuthority for the development of city of Bangalore and the\r\nareas adjacent thereto and for matters connected therewith<br></b></p><p><b>13. Incorporation of an earlier Act into the later Act is a\r\nlegislative device for the sake of convenience in order to avoid\r\nverbatim reproduction of the provisions of the earlier Act into\r\nthe later Act. Once the incorporation is made, the provisions of\r\nincorporated statute become an integral part of the statute in\r\nwhich it is transferred and thereafter there is no need to refer to\r\nthe statute from which incorporation is made and any\r\nsubsequent amendment made in it has no effect on the\r\nincorporating statute.</b></p><p><b>17. Therefore, the provisions of the LA Act continue to apply\r\nfor acquisitions made in the BDA Act so far as they are\r\napplicable as it is a legislation by incorporation having regard to\r\nSection 36 of the BDA Act.</b></p><p><b>19. The 2013 Act repeals only the LA Act and not any other\r\nCentral or State enactment dealing with acquisition. Therefore,&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">what is sought to be saved under Section 24 of the 2013 Act is\r\nonly acquisitions which had been initiated under the LA Act and\r\nnot those acquisitions which had been initiated under any other\r\nCentral or State enactment. The expression contained in\r\nSection 24 of the LA Act cannot be given extensive\r\ninterpretation by adding words into the provision, in the\r\nabsence of the provision itself giving rise to any such\r\nimplication. We are of the view that 2013 Act would not\r\nregulate the acquisition proceedings made under the BDA Act.&nbsp;</span></b></p><p><b>20. Section 105 of the 2013 Act states that the provisions of\r\nthe 2013 Act shall not apply to the enactments in the Fourth\r\nSchedule or are to apply with modifications in terms of\r\nnotification issued by the Central Government under Section\r\n105(3) of the 2013 Act. Section 105 does not apply to the\r\npresent case.\r\n21. Recently, a Division Bench of the Karnataka High Court in\r\nSri. L. Ramareddy vs. the State of Karnataka and Ors.&nbsp;5 W.A. No.1415/2018 (LA-BDA) disposed of on 1st December, 2020 has considered identical questions in great detail and has\r\nconcluded as under:<br></b></p><p><b><i>“44. In the circumstances, it is concluded and held that Section\r\n24 does not take within its scope nor does it apply to acquisitions\r\nwhich have been initiated under the provisions of any other\r\nenactment particularly, State enactment, such as, BDA Act. The\r\nsaid Section is restricted to only those acquisitions which have\r\nbeen initiated under the provisions of the LA Act, 1894 only.\r\nSubject to compliance of the conditions mentioned under subsection (2) of Section 24, the land owner would be entitled to the\r\ndeeming provision regarding lapse of acquisition and not\r\notherwise.”\r\n</i></b></p><p><b>We are in complete agreement with this judgment of the\r\nHigh Court.&nbsp;<br></b></p><p><b>&nbsp;23. In view of the above, the Learned Judge of the High Court\r\nin Sri Sudhakar Hegde (supra) was not justified in holding\r\nthat the provisions of LA Act that are made applicable to the\r\nBDA Act are in the nature of legislation by reference. The\r\nlearned Judge has also erred in holding that in view of the\r\nrepeal of LA Act by coming into force of 2013 Act, the\r\ncorresponding provisions of 2013 Act would regulate acquisition\r\nproceedings under the BDA Act and that this would include\r\ndetermination of compensation in accordance with 2013 Act. It&nbsp;is hereby clarified that since LA Act has been incorporated into\r\nthe BDA Act so far as they are applicable, the provisions of\r\n2013 Act are not applicable for the acquisitions made under the\r\nBDA Act. Therefore, the judgment of the learned Single Judge of\r\nthe High Court in Sri Sudhakar Hegde (supra) and other\r\nconnected matters is hereby overruled.</b></p><p> <br></p>', '282cbf19e5cdcd879f04df5c76f4a233.jpeg', '6c19a5514b7178c815c8223a527aeac7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-20', 1, '', '', '2022-01-21 02:14:28', '2022-01-21 02:14:28'),
(1285, 'zJXmJ5GRUejrc9XCqfnk06F9Y', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for specific performance. Financial capacity to pay balance consideration and conduct of the plaintiff throughout the transaction are necessary factors in evaluating readiness and willingness. Supreme Court. ', '<p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Shenbagam &amp; Ors vs&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">KK Rathinavel<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Civil Appeal No 150 of 2022 decided on 20 January 2022<br>Justice&nbsp;&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Dr Dhananjaya Y Chandrachud and Justice A.S. Bopanna&nbsp;</span></b></p><p><b><font face=\"var(--bs-font-sans-serif)\"><span style=\"font-size: 1rem;\">Judgment Link: </span></font><a href=\"https://main.sci.gov.in/supremecourt/2019/22357/22357_2019_34_1502_32837_Judgement_20-Jan-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/22357/22357_2019_34_1502_32837_Judgement_20-Jan-2022.pdf</a></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>25 All the three courts, including the High Court, grossly erred in the manner\r\nin which they have adjudicated upon this dispute in a suit for specific\r\nperformance. In the first instance, the trial court failed to frame an issue on\r\nwhether the respondent-plaintiff was ready and willing to perform his obligations\r\nunder the contract and instead assessed whether he is entitled to the relief of\r\nspecific performance. In doing so, the trial court viewed the legal issue from an\r\nincorrect lens. The foundation of a suit for specific performance lies in\r\nascertaining whether the plaintiff has come to the court with clean hands and has,\r\nthrough his conduct, demonstrated that he has always been willing to perform the\r\ncontract. There is a conspicuous absence in judgment of the trial court of any\r\nreference to evidence led by the respondent to indicate his willingness to perform\r\nthe contract. The trial court merely adverted to “document produced on behalf of\r\nthe plaintiff” and concluded that he had sufficient means to purchase the suit\r\nproperty. Apart from this observation, the judgment fails to analyse the terms of\r\nthe agreement, the obligations of the parties and the conduct of the respondent\r\nor the appellant.</b></span></p><p><b>26 In evaluating whether the respondent was ready and willing to perform his\r\nobligations under the contract, it is not only necessary to view whether he had the\r\nfinancial capacity to pay the balance consideration, but also assess his conduct\r\nthroughout the transaction.</b></p><p><b>28 Having said that, the terms of the agreement stipulated that the respondent\r\nwas to pay the balance consideration within a period of six months and “on\r\nreceipt of the balance consideration”, the appellants were to execute the sale\r\ndeed “pertaining to the property free from all encumbrances”. It is evident from\r\nthe agreement that the liability to deliver the property free from any encumbrance\r\nwas on the appellants. However, this obligation is prefaced by the condition that\r\nthe appellants would be required to execute the sale deed free from\r\nencumbrance on the receipt of the balance consideration. Thus, the agreement\r\ndid not specify when the appellants should discharge their mortgage- before the\r\nexpiry of six months, after receipt of the advance amount, or after receipt of the\r\nbalance consideration. It only obligated them to ensure that after the balance\r\nconsideration is received, the sale deed executed should be free from\r\nencumbrances. Based on a plain reading of the agreement, we are unable to\r\naccept the respondent?s plea that he was willing to perform his obligations under\r\nthe contract. It is evident that he was required to pay the remaining consideration\r\n(or indicate his willingness to pay) and only then could have sought specific \r\nPART C&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">performance of the contract. The respondent has also urged that the additional\r\namount of Rs. 10,000 was paid to the appellants to discharge the mortgage. The\r\nacknowledgment signed by the appellants indicates that the money was to meet\r\nurgent family expenses. Since no further details have been provided and no\r\nevidence has been adduced by the respondent-plaintiff, we cannot conclude that\r\nthe money was for discharge of the mortgage. Even assuming that the\r\nrespondent is correct, the agreement still required the respondent to pay the\r\nbalance consideration. In this regard, the High Court, while holding in favour of\r\nthe respondent, has noted that the appellants were free to demand a further\r\namount for discharging the mortgage. This finding ignores the plain terms of the\r\ncontract. The agreement clearly provided that the balance consideration would be\r\npaid and then the sale deed would be executed. How the appellants chose to\r\ndischarge the mortgage was for them to decide. The respondent had to prove his\r\nreadiness and willingness to perform the contract.</span></b></p><p><b>29 We shall now advert to the respondent?s conduct throughout the sale\r\ntransaction. The respondent has failed to provide any documents or\r\ncommunication which would indicate that he called upon the appellants to\r\nperform their obligations or discharge the mortgage within the time period\r\nstipulated in the contract. Even after the expiry of the six months, the respondent\r\ndid not reach out to the appellants. It is only in response to the appellants? legal\r\nnotice that the respondent demanded performance of their obligations. Merely\r\naverring that he was waiting with the balance consideration and believed that the\r\nappellants would clear the encumbrance is insufficient to prove that the\r\nrespondent-plaintiff was willing to perform his obligations under the contract.&nbsp;<br></b></p><p><b>&nbsp;31 The „readiness? of the respondent to perform his obligations refers to\r\nwhether he was financially capable of paying the balance consideration. Both the\r\ntrial court and the first appellate court have observed that the respondent was\r\nready to pay the balance consideration as (i) he was paying income tax since\r\n1988 and (ii) his bank passbooks indicate that he had sufficient funds. The\r\npayment of income tax by itself does not show that the respondent had sufficient\r\nresources to pay for the suit property. Moreover, the bank passbooks submitted\r\nin evidence by the respondent were for accounts opened on 11 March 1992 and\r\n22 July 1994, that is, after the expiry of the period written in the contract. The first\r\nappellate court despite noting this, has chosen to hold that the respondent was&nbsp;ready and willing to perform the agreement. The respondent however did not lead\r\nany evidence to indicate that in the year 1990 he had the money to pay the\r\nbalance consideration. The first appellate court shifted the burden on the\r\nappellants to prove that the respondent-plaintiff was incapable of paying the\r\nbalance consideration. It is an established principle of law that the plaintiff must\r\nprove that he is ready and willing to perform the contract. The burden lies on the\r\nplaintiff. The respondent has not led any evidence that he was ready or willing to\r\nperform his obligations under the agreement.</b></p><p><b> 36 True enough, generally speaking, time is not of the essence in an\r\nagreement for the sale of immoveable property. In deciding whether to grant the\r\nremedy of specific performance, specifically in suits relating to sale of immovable\r\nproperty, the courts must be cognizant of the conduct of the parties, the\r\nescalation of the price of the suit property, and whether one party will unfairly\r\nbenefit from the decree. The remedy provided must not cause injustice to a party,\r\nspecifically when they are not at fault. In the present case, three decades have\r\npassed since the agreement to sell was entered into between the parties. The\r\nprice of the suit property would undoubtedly have escalated. Given the blemished\r\nconduct of the respondent-plaintiff in indicating his willingness to perform the\r\ncontract, we decline in any event to grant the remedy of specific performance of\r\nthe contract. However, we order a refund of the consideration together with\r\ninterest at 6% per annum.</b></p><p><b>37 For the above reasons, we allow the appeal and set aside the judgment\r\ndated 7 January 2019 of the High Court of Judicature at Madras. The appellants\r\nare directed to refund the advance amount of Rs. 35,000/- received from the\r\nrespondent with interest at the rate of 6% per annum from the date of the filing of\r\nthe suit for specific performance by the respondent, till the payment of the refund.\r\n38 Pending applications, if any, shall stand disposed of. &nbsp;</b><br></p>', '68d61fde50d28015a7c33e5ab679ed6a.jpg', '4e3c6aada56b2fa3838e26bce878ac12.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-20', 1, '', '', '2022-01-21 02:37:42', '2022-01-21 02:37:42'),
(1286, 'fmKIJW3q46NA2xQR1YvPN3wM7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu female dying intestate without any issue. Property inherited by her from father/mother would go to heirs of her father and property inherited from her husband or father-in-law goes to the heirs of the husband. Supreme Court. ', '<p><b>Arunachala Gounder by lrs vs Ponnusamy and others.&nbsp;<br>Civil Appeal 6659 of 2011 decided on 20 January 2022<br>Justice S. Abdul Nazeer and Justice Krishna Murari&nbsp;</b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2009/15692/15692_2009_37_1502_32676_Judgement_20-Jan-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2009/15692/15692_2009_37_1502_32676_Judgement_20-Jan-2022.pdf</a><br></b></p><p><b>19. The determination and adjudication of the issue depends upon the\r\nanswers to the following questions :- <br></b></p><p><b>(1) What is the nature of the property and what would be the\r\ncourse of succession if it is a separate property as\r\nopposed to undivided property? </b></p><p><b>(2) Whether a sole daughter could inherit her father’s separate\r\nproperty dying intestate? And if so - </b></p><p><b>(3) What would be the order of succession after the death of\r\nsuch daughter?&nbsp;</b></p><p><b>66. Right of a widow or daughter to inherit the self-acquired property or\r\nshare received in partition of a coparcenary property of a Hindu male\r\ndying intestate is well recognized not only under the old customary Hindu\r\nLaw but also by various judicial pronouncements and thus, our answer to\r\nthe question Nos. 1 and 2 are as under :-\r\n</b></p><p><b><i>“If a property of a male Hindu dying intestate is a selfacquired property or obtained in partition of a co-parcenery&nbsp;or a family property, the same would devolve by inheritance\r\nand not by survivorship, and a daughter of such a male\r\nHindu would be entitled to inherit such property in\r\npreference to other collaterals.”</i></b></p><p><b>\r\n67. In the case at hands, since the property in question was admittedly\r\nthe self-acquired property of Marappa Gounder despite the family being in\r\nstate of jointness upon his death intestate, his sole surviving daughter\r\nKupayee Ammal, will inherit the same by inheritance and the property shall\r\nnot devolve by survivorship.&nbsp;&nbsp;</b></p><p><b>71. The scheme of sub-Section (1) of Section 15 goes to show that\r\nproperty of Hindu females dying intestate is to devolve on her own heirs,\r\nthe list whereof is enumerated in Clauses (a) to (e) of Section 15 (1). SubSection (2) of Section 15 carves out exceptions only with regard to\r\nproperty acquired through inheritance and further, the exception is\r\nconfined to the property inherited by a Hindu female either from her father\r\nor mother, or from her husband, or from her father-in-law. The exceptions\r\ncarved out by sub-Section (2) shall operate only in the event of the Hindu\r\nfemale dies without leaving any direct heirs, i.e., her son or daughter or&nbsp;children of the pre-deceased son or daughter.\r\n</b></p><p><b>72. Thus, if a female Hindu dies intestate without leaving any issue, then\r\nthe property inherited by her from her father or mother would go to the\r\nheirs of her father whereas the property inherited from her husband or\r\nfather-in-law would go to the heirs of the husband. In case, a female\r\nHindu dies leaving behind her husband or any issue, then Section 15(1)(a)\r\ncomes into operation and the properties left behind including the\r\nproperties which she inherited from her parents would devolve\r\nsimultaneously upon her husband and her issues as provided in Section\r\n15(1)(a) of the Act.\r\n</b></p><p><b>73. The basic aim of the legislature in enacting Section 15(2) is to\r\nensure that inherited property of a female Hindu dying issueless and\r\nintestate, goes back to the source.\r\n</b></p><p><b>74. Section 15(1)(d) provides that failing all heirs of the female specified\r\nin Entries (a)-(c), but not until then, all her property howsoever acquired\r\nwill devolve upon the heirs of the father. The devolution upon the heirs of\r\nthe father shall be in the same order and according to the same rules as\r\nwould have applied if the property had belonged to the father and he had&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">died intestate in respect thereof immediately after her death.</span></b></p><p><b>77. Applying the above settled legal proposition to the facts of the case\r\nat hands, since the succession of the suit properties opened in 1967 upon\r\ndeath of Kupayee Ammal, the 1956 Act shall apply and thereby Ramasamy\r\nGounder’s daughter’s being Class-I heirs of their father too shall also be\r\nheirs and entitled to 1/5th Share in each of the suit properties.</b></p><p><b>80. The appeal, accordingly, stands allowed and the suit stands decreed.&nbsp;</b><br></p>', 'a0494b1ddf45fcec17311cfea148d72e.JPG', '01e4b133be62e8e34c11650dca541df9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-20', 1, '', '', '2022-01-21 03:28:02', '2022-01-21 03:28:02'),
(1287, 'SctbBAUvVYw1CSMxMVcZ2b8dU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Article 25 of the Constitution cannot be understood as affording protection to those who indulge in conversion under the camouflage of propagation of his or her religion\'\'. Karnataka High Court while quashing criminal proceedings against police officers', '<p><span style=\"font-weight: bolder;\">Manjeshwara and others vs Dharme Gowda<br></span><b>Writ Petition 14238 of 2020 decided on 7 January 2022</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The petitioners, being accused no. 7, 8 and 9 have invoked jurisdiction of this&nbsp; court&nbsp; under Articles 226 and 227 of the Constitution of&nbsp; India read with section 482 of the Code of Criminal Procedure for quashing the proceedings against them in C.C.71/2019 on the file of Senior Civil&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judge and JMFC, Narasimharajapura. The&nbsp; events that have led to this petition being filed are as follows : -</b><b><br></b></p><p><b>2. The first petitioner is a Sub Inspector of Police and the petitioners 2 and 3 are police constables. The respondent&nbsp; is&nbsp; the&nbsp; complainant. The incident that the respondent has alleged&nbsp; to&nbsp; have taken place is that, on 6. 10.2017 , he and his friend, Jason, being Christians, belonging to the order Jehovah’ s Witnesses, went to the shop of the first accused, namely Smt. Sudha Pai for taking photocopy of a document. In the shop, the respondent picked up conversation with Sudha Pai&nbsp; on the subject of ‘ family’ and in that course, gave her a tract entitled, “ What is the Key to Happy Family life?”. Smt. Sudha Pai suspected that the respondent and his friend were making attempt to convert her to Christianity and therefore called the police. The respondent and his friend were taken&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to police station, Balehonnur, where it is alleged&nbsp; that they were subjected to physical torture by the petitioners, and in this connection the respondent approached the court of JMFC on 19.9.2018 with a complaint under section 200 Cr.P.C. The learned Magistrate, by his order dated 14.2. 2019 , took cognizance of the offences punishable under sections 298 and 324 read with section 34 IPC and issued process against the petitioners. Thus the petitioners are before this court.</b></p><p><b>7. Firstly delay in approaching the court assumes importance. It may be stated that the aspect of delay does not always matter, but inordinate delay certainly matters. If delay is explained, whether to accept it or not falls&nbsp; within the sphere of appreciation of evidence by the trial court. When there is inordinate delay, power under section 482 Cr.P. C. can be&nbsp; exercised. Even&nbsp; if explanation is given, it must&nbsp; prima facie appear to be believable. Here in the present case, the respondent states about his person having been subjected to physical assault by the police on 6.10.2017.<span style=\"white-space:pre\">	</span>Of course, the respondent has produced a show cause notice dated 7.10. 2017 issued by the Magistrate to the Sub-Inspector of Police. The other document produced is a&nbsp; copy&nbsp; of the complaint filed by the respondent before the Karnataka&nbsp; &nbsp; Human&nbsp; &nbsp;Rights&nbsp; &nbsp;Commission.<span style=\"white-space:pre\">	</span>The respondent seeks to explain the delay by referring to these two documents.&nbsp;</b></p><p><b>9. Then regarding sanction, learned counsel for the respondent has placed reliance on some decisions of this court in the cases of G. Govinda Raju Vs. Babu Poojary (Crl.RP.No.291/1972); Gyanoba Vs. Nanayya (Crl.RP.No.452/1974); D.H.Chikkadoddaiah Vs. Nataraj [1973(2) Mys.LJ 141] and Hanumanthappa Vs. S.B. Mastamaradi [(2003) CrlLJ 4359 . In all these decisions, beatings and physical violence&nbsp; resorted to by the police during interrogation of&nbsp; an&nbsp; accused is held to be out of purview of the duties of police officers and hence they cannot take protection&nbsp; under section 170 of&nbsp; the Karnataka Police Act.&nbsp; &nbsp;In&nbsp; &nbsp;a recent decision by the Co-ordinate Bench of this court in the case of S.&nbsp; Shivakumar&nbsp; and&nbsp; others Vs. State of Karnataka (Criminal Petition No.996/2021), same view has been taken. But what kind of an act amounts to an official duty is made clear by the Supreme Court in the case of D.Devaraja Vs. Owais Sabeer Hussain [(2020)&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7 SCC 695].</b></p><p><b>11. Now, the facts of this case disclose that&nbsp; the first accused in the complaint,&nbsp; i.e.,&nbsp; Smt.&nbsp; Sudha S.Pai, made a report&nbsp; to&nbsp; Balehonnur&nbsp; Police on 6.10.2017 against the respondent alleging that the latter spoke insultingly of Hindu religion and practices and induced her to convert&nbsp; to Christianity, and in this connection, the police registered an FIR in Crime No.141/2017 for the offence under section 295A IPC, took the&nbsp; respondent to their custody and produced&nbsp; him before the Magistrate on 7.10 .2017. It was during this interregnum that the respondent is&nbsp; said&nbsp; to have been beaten by the police. That means the excesses complained of has got reasonable nexus with the official duty of the petitioners.</b></p><p><b>12. If further explanation can be given,&nbsp; it may be stated that whenever complaint under Section 200 of Cr.P. C., is&nbsp; filed&nbsp; and the cognizance is sought to be taken based on materials produced along with the complaint and the sworn statement&nbsp; &nbsp;of the complainant and the witnesses, it&nbsp; is&nbsp; necessary that the order of sanction from the competent authority must be produced. For, the complainant at the initial stage of filing complaint should be having evidence to proceed against a public servant and therefore he must place that evidence before the competent authority and apply for sanction, which, if granted, should be produced before the Court to enable it to&nbsp; take&nbsp; cognizance. But if reference to police under Section 156(3 ) of Cr.P. C., is sought, there is no necessity to obtain sanction at the initial stage, the reason being that the complainant, makes certain allegations against the accused and seeks investigation. Only during investigation, evidence will be collected and&nbsp; sanction can be applied for&nbsp; based&nbsp; on&nbsp; that evidence. It is enough if&nbsp; sanction&nbsp; order&nbsp; is produced along with charge sheet. The&nbsp; case&nbsp; on hand falls under first category and therefore production of sanction was necessary at the initial stage. Here the&nbsp; respondent&nbsp; did&nbsp; not&nbsp; obtain sanction before initiating action. Hence the complaint against the petitioners cannot be sustained.</b></p><p><b>13. The respondent has very much laid emphasis on right to&nbsp; propagate&nbsp; his&nbsp; religion,&nbsp; and he tries to take shelter under Article 25 of the Constitution of India. His stand is that he&nbsp; did not try to convert the first accused,&nbsp; Smt.&nbsp; Sudha&nbsp; S.&nbsp; Pai, to Christianity, but he does not deny propagation. On the other&nbsp; hand, the&nbsp; contents&nbsp; of FIR in Crime No. 141/2017 indicate that the respondent went to the house of Smt. Sudha S Pai, ridiculed Hindu Gods and induced her to convert to Christianity. In this view, it may be&nbsp; stated that if&nbsp; the complaint lodged by the&nbsp; respondent&nbsp; against&nbsp; the petitioners and other accused&nbsp; is&nbsp; to&nbsp; counter blast FIR No.141/2017, it is nothing but a frivolous&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">complaint.&nbsp; Inordinate delay, as&nbsp; discussed above, is a pointer to ulterior intention behind the complaint. Article 25 of the Constitution not only gives right to practise or propagate any religion of one’s faith, but also gives right to protect one’s religion when there is onslaught on&nbsp; one’s&nbsp; religion by people of other faith&nbsp; or&nbsp; other religion. Article&nbsp; 25 of the Constitution cannot be understood as affording protection to those who indulge in conversion under the camouflage of propagation of his or her religion. One who speaks&nbsp; about&nbsp; right must always remember the duty, the&nbsp; duty&nbsp; here&nbsp; is to respect the other&nbsp; religion,&nbsp; its&nbsp; tradition, practices and rites.</b></p><p><b>14. Therefore from the above discussion, I come to conclusion that the proceedings&nbsp; against&nbsp; the petitioners as also against other accused who have not approached this&nbsp; court&nbsp; can&nbsp; be&nbsp; quashed. In a given set of circumstances, if it appears that&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the whole criminal action results in abuse of&nbsp; process of court, jurisdiction under Section&nbsp; 482 Cr.P. C. can be exercised to quash the proceedings not only with respect to those&nbsp; who&nbsp; have&nbsp; approached the court under section&nbsp; 482&nbsp; Cr.P.C., but also other accused who have not&nbsp; approached.&nbsp; In this view, I find a case to quash the entire proceedings in C.C.No.71/2019 on&nbsp; the&nbsp; file&nbsp; of Senior Civil Judge and JMFC, Narasimharajapura, against all the accused and ordered accordingly.</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '5d6ec8bfe1b5cc997dc1c8609fb83332.jpg', 'fd3ea5e6803135efbdd83433c0b8d2be.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-21', 1, '', '', '2022-01-22 00:51:56', '2022-01-22 00:51:56'),
(1288, 'RDa9sUXvTwnV5qpTnlZYSDUF5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Promise of marriage and breach of such promise will NOT attract the provisions of Sections 417 and 420 of Indian Penal Code. Karnataka High Court. ', '<p><b>Venkatesh and others vs State of Karnataka and another.<br>Criminal Petition 5865 of 2021 decided on 13 January 2022<br></b></p><p><b><br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">This petition is filed by the petitioners/accused Nos.1 to 4 under Section 482 of Cr.P.C. for quashing the FIR in Cr.No.157/2020 registered by the Ramamurthy Nagar Police Station for the offences punishable under Section 420, 506 read with Section 34 of IPC.</span><br></b></p><p><b>4. Learned counsel for the petitioners contended that mere promise of marriage and not marrying her cannot be said to be a cheating as per the provision of Section 415 of IPC. Absolutely there is no ingredient for invoking the said section. After the filing of the case in May-2020, absolutely there no investigation by the Police in spite of the petitioners appearing before the Police after obtaining the bail and there is no progress. Respondent No.2 has filed the complaint only to harass the petitioners. Hence, prayed for quashing the FIR.</b></p><p><b>6. Having heard the arguments and perused the records, admittedly respondent No.2 filed complaint stating that accused No.1/petitioner No.1 fell in love with her and he has promised to marry her. Subsequently, he failed to marry her and he married somebody else and other petitioners said to have helped petitioner No.1 to marry some other lady. A plain reading of the complaint would reveal that it does not attract any ingredient of Section 415 of IPC in order to show that the accused persons have committed the offence under Section 420 of IPC and also she has just stated that the accused have also threatened her in order to attract Section 506 of IPC. Absolutely there is no ingredient stated by her in order to show that there is a criminal intention of cheating by petitioner No.1 and thereby, he has promised to marry her but has broken his promise.</b></p><p><b>7. Learned counsel for the petitioners relied upon a Single Bench judgment of the High Court of Judicature at Madras, in the case of K.U.Prabhu Raj Vs. State by Sub Inspector of Police, A.W.P.S. Tambaram and another reported in  2012-3- L.W.770 </b></p><p><b>8. The Hon\'ble Supreme Court also has categorically held in the case of  S.W.PALANITKAR  AND OTHERS VS. STATE OF BIHAR AND ANOTHER reported in (2002) 1 SCC 241 at  paragraph  No.11 that mere breach of contract cannot give rise to any criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction and the time when the offence is said to have been committed. Here in this case, petitioner No.1 is said to have promised to marry respondent No.2, but failed to marry her. In view of the judgment of the Hon\'ble Supreme Court, respondent No.2 has failed to make out a case of criminal intention of petitioner No.1 from the beginning for cheating the complainant. That apart, the aforesaid judgment of High Court of judicature at Madras is applicable to the case where the promise of marriage will not attract <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 420 of IPC. This Court has held in Crl.R.P.No.233/2020 dated 24.02.2020 in the case of Sri.D.Ramesh Sinha Vs. State of Karnataka that as a promise of marriage and breach of contract will not attract the provisions of Sections 417 and 420 of IPC. Such being the case, continuing the proceedings or investigation against the petitioners is abuse of process of law and therefore, the same is liable to be quashed. Accordingly, I pass the following;</span></b></p><p><b>ORDER</b></p><p><b>The petition is allowed.</b></p><p><b>The investigation against this petitioner in Cr.No.157/2020 registered by the Ramamurthy Nagar Police Station is hereby quashed.</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '6469e2734c4546d14f95efe41f3918ec.jpg', 'd4f78d09ef14322358fc02b9e3a61316.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-22', 1, '', '', '2022-01-22 19:43:21', '2022-01-22 19:52:18'),
(1289, 'YFtQmEzzHJfUXgf3NyjROsuqn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Succession prior to Hindu Succession Act, 1956. In the absence of any other legal heir of a Hindu male such as son or wife, daughter gets a right in the self acquired property of her father. Supreme Court.', '<p><span style=\"font-weight: bolder;\">Arunachala Gounder by lrs vs Ponnusamy and others.&nbsp;<br>Civil Appeal 6659 of 2011 decided on 20 January 2022<br>Justice S. Abdul Nazeer and Justice Krishna Murari&nbsp;</span></p><p><span style=\"font-weight: bolder;\">Judgment Link:&nbsp;</span><a href=\"https://main.sci.gov.in/supremecourt/2009/15692/15692_2009_37_1502_32676_Judgement_20-Jan-2022.pdf\" target=\"_blank\" style=\"font-weight: bolder;\">https://main.sci.gov.in/supremecourt/2009/15692/15692_2009_37_1502_32676_Judgement_20-Jan-2022.pdf</a><b><br></b></p><p><b>18. In the backdrop of the above facts, the primary issue which arises\r\nfor our consideration is with respect to the right of the sole daughter to\r\ninherit the self-acquired property of her father, in the absence of any other\r\nlegal heir having inheritable rights before the commencement of the Hindu\r\nSuccession Act, 1956 or in other words, whether such suit property will\r\ndevolve on to the daughter upon the death of her father intestate by\r\ninheritance or shall devolve on to father’s brother’s son by survivorship.</b><span style=\"font-weight: bolder;\"><br></span></p><p><span style=\"font-weight: bolder;\">19. The determination and adjudication of the issue depends upon the answers to the following questions :-<br></span></p><p><span style=\"font-weight: bolder;\">(1) What is the nature of the property and what would be the course of succession if it is a separate property as opposed to undivided property?</span></p><p><span style=\"font-weight: bolder;\">(2) Whether a sole daughter could inherit her father’s separate property dying intestate? And if so -</span></p><p><span style=\"font-weight: bolder;\">(3) What would be the order of succession after the death of such daughter?&nbsp;</span></p><p><b>40. In another digest “Hindu Law as administered in the Courts of\r\nMadras Presidency6\r\n”, arranged and annotated by H.S. Cunningham, the\r\nthen Advocate General of Madras, it is stated in Clause 203 of Chapter. \'\'VI, dealing with inheritance by daughters as under :-\r\n“ Clause-203 :- In default of sons, grandsons, great\r\ngrandsons, and widows, the daughter succeeds to a life\r\nestate in her father’s property\'\'</b><span style=\"font-weight: bolder;\"><br></span></p><p><span style=\"font-weight: bolder;\">66. Right of a widow or daughter to inherit the self-acquired property or share received in partition of a coparcenary property of a Hindu male dying intestate is well recognized not only under the old customary Hindu Law but also by various judicial pronouncements and thus, our answer to the question Nos. 1 and 2 are as under :-</span></p><p><span style=\"font-weight: bolder;\"><i>“If a property of a male Hindu dying intestate is a selfacquired property or obtained in partition of a co-parcenery&nbsp;or a family property, the same would devolve by inheritance and not by survivorship, and a daughter of such a male Hindu would be entitled to inherit such property in preference to other collaterals.”</i></span></p><p><span style=\"font-weight: bolder;\">67. In the case at hands, since the property in question was admittedly the self-acquired property of Marappa Gounder despite the family being in state of jointness upon his death intestate, his sole surviving daughter Kupayee Ammal, will inherit the same by inheritance and the property shall not devolve by survivorship.&nbsp;&nbsp;</span></p><p><span style=\"font-weight: bolder;\">71. The scheme of sub-Section (1) of Section 15 goes to show that property of Hindu females dying intestate is to devolve on her own heirs, the list whereof is enumerated in Clauses (a) to (e) of Section 15 (1). SubSection (2) of Section 15 carves out exceptions only with regard to property acquired through inheritance and further, the exception is confined to the property inherited by a Hindu female either from her father or mother, or from her husband, or from her father-in-law. The exceptions carved out by sub-Section (2) shall operate only in the event of the Hindu female dies without leaving any direct heirs, i.e., her son or daughter or&nbsp;children of the pre-deceased son or daughter.</span></p><p><span style=\"font-weight: bolder;\">72. Thus, if a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would go to the heirs of her father whereas the property inherited from her husband or father-in-law would go to the heirs of the husband. In case, a female Hindu dies leaving behind her husband or any issue, then Section 15(1)(a) comes into operation and the properties left behind including the properties which she inherited from her parents would devolve simultaneously upon her husband and her issues as provided in Section 15(1)(a) of the Act.</span></p><p><span style=\"font-weight: bolder;\">73. The basic aim of the legislature in enacting Section 15(2) is to ensure that inherited property of a female Hindu dying issueless and intestate, goes back to the source.</span></p><p><span style=\"font-weight: bolder;\">74. Section 15(1)(d) provides that failing all heirs of the female specified in Entries (a)-(c), but not until then, all her property howsoever acquired will devolve upon the heirs of the father. The devolution upon the heirs of the father shall be in the same order and according to the same rules as would have applied if the property had belonged to the father and he had&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">died intestate in respect thereof immediately after her death.</span></span></p><p><span style=\"font-weight: bolder;\">77. Applying the above settled legal proposition to the facts of the case at hands, since the succession of the suit properties opened in 1967 upon death of Kupayee Ammal, the 1956 Act shall apply and thereby Ramasamy Gounder’s daughter’s being Class-I heirs of their father too shall also be heirs and entitled to 1/5th Share in each of the suit properties.</span></p><p><span style=\"font-weight: bolder;\">80. The appeal, accordingly, stands allowed and the suit stands decreed.&nbsp;</span></p>', 'c93d8512896b85fc9d28cbb188462a6c.JPG', '0f5fb9f3b51b1cd67da4b8bdbbf20a31.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-23', 1, '', '', '2022-01-23 19:52:41', '2022-01-23 19:52:41'),
(1290, 'HxDVKtwz9cktDB824KkC3pNA8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Imposition of property tax on educational institutions. When the Rule exempts payment of tax, Government Circular cannot impose tax - Karnataka High Court while quashing property tax demand by the Gram Panchayats.    ', '<p><span style=\"font-weight: bolder;\">Indus Trust and another vs The State of Karnataka and another.<br>Writ Petition 16323 of 2021 decided on 23 December 2021</span></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Petitioners, in the conglomeration of these cases, are all Educational Institutions calling in question  imposition  of  property tax by the respective  Panchayats  under  whose precincts the Institutions exist. The petitioners are different Trusts claiming to be charitable and running Educational Institutions. Since the issue is with regard to imposition of property tax the establishments of the Institutions in these cases are not gone into.</b><span style=\"font-weight: bolder;\"><br></span></p><p><b>5. The learned Senior Counsel Sri S.Basavaraj would vehemently argue and contend that under Section  199  of  the Act, the Karnataka Panchayat Raj (Grama Panchayat Taxes and Fees)  Rules,  1994  (‘the  Rules’  for  short)  have  been  framed  by Government. The Rules exempt lands which are being  used  solely for charitable or religious purposes and the property tax now levied against the petitioners are without application of  mind, as there is no determination with regard to the fact that the petitioners either running the Institutions or not using their lands solely for charitable or public religious purposes as the exemption was always available to the petitioners under the Karnataka Municipal Corporations Act, 1976 as well. He would contend that the demand as made on the strength of a circular  </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which has no legal legs to stand would run counter to the Act and the Rules.</b></p><p><b>6. The learned Additional Government Advocate would vehemently refute the submissions of the  learned  Senior  Counsel and submit that the circular is in furtherance  of  the Rules and is not contrary to the Rules. The circular  cannot be held to be ultra vires the Act or the Rules, as it does not in any way direct anything contrary to the Rules and would further submit that the demand is made by the Panchayats and it is for the Panchayats to determine the property tax and raise a demand, if they have not done so.</b></p><p><b>Section 199 of the Act controls levy of tax and rate of tax by the Gram Panchayat. Sub-section (1) of Section 199 depicts the manner in which the tax could be levied subject to exceptions. The State Government in exercise of powers conferred under Sections 199, 200 and 201 has framed the Rules. </b></p><p><b>Chapter II of the said Rules depicts procedure for levy of tax on building or land. Sub-rule (1) of Rule 3 of the Rules directs that every Gram Panchayat shall, before levying tax on buildings, pass a resolution of such levy of tax, publish a notice of such resolution by affixing notice thereof on the notice board of the Gram Panchayat. </b></p><p><b>11.<span style=\"white-space:pre\">	</span>Identical Rules under  the  Karnataka  Municipalities Act, 1964 had fallen for consideration, way  back  in  the  year 1985 before a Co-ordinate Bench of this Court in TOWN MUNICIPAL COUNCIL v. VIJAYA COLLEGE ILR 1986 KAR 2895. ..The question that was posed was whether the Town Municipal Council therein could levy tax on the building of an Educational Institution. The issue that is answered by the Court was after considering the building being used predominantly for educational purpose would be exempted from the levy of tax under Section 94 of the Karnataka Municipalities Act. </b></p><p><b>The Co-ordinate Bench of this Court interprets exemption under Rule 6(c) of the Rules and holds that if the  Educational  Institution would supply such material before the Gram  Panchayat with an appropriate  representation  seeking  exemption from payment of building tax, the same should be considered. This direction was arrived at on the basis of the reason that the notices issued did not disclose compliance with  the Rules and holds that the notices being contrary to the Rules would be arbitrary.</b></p><p><b>15.<span style=\"white-space:pre\">	</span>If the Rules exempt payment of tax on a particular category, the circular cannot impose tax on such category. The circular which runs counter to the Rules, without determination to be made under the Rules, is rendered unsustainable only insofar as such determination is concerned. The circular need not in its entirety be ultra vires as is sought by the petitioners, as determination of tax and its exemption is under the Act and the Rules. Since demand notices impugned in these cases are not preceded by the procedure stipulated under the Rules and do not bear consideration of exemptions to charitable institutions under the Rules, they are rendered unsustainable. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rendering of the demand notices, as unsustainable would not absolve the petitioners/Institutions from payment of property tax, if they are amenable to payment of such tax under the taxation laws, but that shall be only after consideration and determination of exemption of tax in terms of Rule 6(c) of the Rules. Those determinations will have to be made by the Gram Panchayats prior to issuance of demand notices.</b></p><p><b>16.<span style=\"white-space:pre\">	</span>Therefore, the petitioners, in all these cases, shall place such material before the respective Gram Panchayat, in justification of claim of exemption under Rule 6(c) of the Rules and the Gram Panchayats shall consider the same, determine that the Institutions, notwithstanding the exemptions, are amenable to payment of tax and then demand such tax.</b></p><p><b>(ii)<span style=\"white-space:pre\">	</span>The impugned circular dated  19.11.2016  is  held  to be unenforceable only with regard to absence of method of assessment under Rule 6(c) (supra). The State is at liberty to bring it in tune with the Rules.</b></p><p><b>(iii)<span style=\"white-space:pre\">	</span>The impugned demand notices in all  these  cases stand quashed and the matters are remitted back to respective Panchayats for re-determination of payment of property tax on receipt of justification of claim for exemption under Rule 6(c) of the respective Educational Institutions, consider the same on the basis of the Rules and then pass appropriate orders,  in accordance with law.</b></p><p><b>(iv)<span style=\"white-space:pre\">	</span>The Educational Institutions are directed to submit their justification in terms of Rule 6(c) of the Rules to claim exemption from property tax within four weeks from the date of receipt of a copy of this order and the respective Panchayats shall consider the same, pass appropriate orders justifying such demand and then issue such demand notices within eight weeks thereafter.</b></p><p><b>(v)<span style=\"white-space:pre\">	</span>Till such time no precipitate action shall be taken against the petitioners/Educational Institutions with regard to issue of payment of property tax.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '726e72b97d6612de52bb7d8b92ac82ce.jpg', '350d97672a057e409cd407634fd16ec5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-24', 1, '', '', '2022-01-25 01:49:48', '2022-01-25 01:52:23');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1291, 'KXB2N3HsjwH8hIcy9IMlh5OCb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SC/ST (Prevention of Atrocities) Act. Obtaining false caste certificate by non SC/ST person can not be construed as an offence under the Act. Karnataka High Court', '<p><span style=\"font-weight: bolder;\">Yamuna vs The State&nbsp;<br></span><b>Criminal Revision Petition 989 of 2012 decided on 11 January 2022</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;</b><b><br></b></p><p><b>2. The petitioner in Criminal Revision Petition 989/2012 is the accused in Special Case&nbsp; No. 19/2008 on the file of II Additional District and Sessions (Special) Judge, D.K, Mangalore, facing trial for the offence under section 3(1)( ix) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act (for short hereinafter referred to as ‘ the&nbsp; Act’). The&nbsp; petitioner&nbsp; in Criminal Revision Petition 988/2012 is the accused&nbsp; in Special Case No. 23/ 2008 on the&nbsp; file&nbsp; of&nbsp; the same court for the same offence. They were prosecuted for the said offence on the&nbsp; allegation that they produced false caste certificates to show that they belonged to Marathi caste which comes under Scheduled Tribe category. Charge sheet was filed for the offence under section&nbsp; 3(1)(x) of&nbsp; the Act. The petitioners filed applications under section 227 Cr. P.C seeking their discharge. The court below by its order&nbsp; dated&nbsp; 22 .8. 2012 dismissed their applications and hence these revision petitions.</b></p><p><b>6. I have considered the points of arguments. So far as the petitioner in Criminal Revision Petition 988/2012 is concerned, the allegation is that&nbsp; the&nbsp; petitioner, though belonged&nbsp; to Konkani caste, gave false information to the Tahsildar that he belonged to Marathi caste for obtaining a caste certificate in order to secure employment in New Mangalore Port Trust. The allegation against the petitioner in Criminal&nbsp; Revision Petition 989/2012 is&nbsp; also&nbsp; the&nbsp; same. There is no dispute that these caste certificates&nbsp; were issued in 1977 and 1983. Therefore&nbsp; it&nbsp; becomes very clear that when&nbsp; the&nbsp; caste&nbsp; certificates were issued, the Act had not been enacted at all, it came into force from 30.1.1990. Article 20(1 ) of the Constitution of India clearly says that, no person shall be convicted of any&nbsp; offence except for violation of the law in&nbsp; force at&nbsp; the time of the&nbsp; commission of&nbsp; the&nbsp; act charged as&nbsp; an offence, nor be subjected to a penalty greater than that which might have&nbsp; been&nbsp; inflicted&nbsp; under the law in force at the time of&nbsp; the&nbsp; commission of&nbsp; the offence. Petitioners have been charge sheeted for the offence under section 3(1)( ix) of&nbsp; the&nbsp; Act.&nbsp; In view of Article 20(1) of&nbsp; the&nbsp; Constitution&nbsp; of India, they cannot be prosecuted for the offence under section 3 (1)(ix) of the Act as the law did not exist on the day when the certificates were issued. This aspect has been made clear by the earlier judgments of this court. In Haridevanandaji Rao Pawar vs The State of Karnataka (Criminal Petition No. 2813/2008)</b></p><p><b>7. Then in the case of B.Venugopal vs The State of Karnataka (Criminal Revision Petition No. 321/2015), the judgment of this court in Haridevanandaji has been referred&nbsp; to&nbsp; reiterate the principle&nbsp;</b></p><p><b>9. Further, if it is examined whether section 3(1)(x) of the Act chould be invoked against the petitioners, it may be stated that as&nbsp; the&nbsp; language&nbsp; of the said section indicates, it is altogether for a different purpose. This court had an&nbsp; occasion&nbsp; to deal with the applicability of section 3( 1)(x) ( now section 3(1 )(q) of the Act&nbsp; after&nbsp; amendment). Under what circumstances this section can be invoked is discussed in the case&nbsp; of Smt. K.Susheela vs The State of Karnataka and Another (Criminal Appeal No. 1361/2021).</b></p><p><b>10. Therefore it is clear that if a false caste certificate is obtained by persons not belonging to Scheduled Caste/Scheduled Tribe by giving wrong information, it does not mean that a public servant is induced to take action against a member of Scheduled&nbsp; Caste/ Scheduled&nbsp; &nbsp;Tribe.<span style=\"white-space:pre\">	</span>The said provision cannot be invoked in the charge&nbsp; sheet even if it is assumed for the argument sake that certificates are obtained by giving&nbsp; false information. In this view filing of charge sheet against the petitioners was unwarranted.&nbsp;</b></p><p><b>(b) The orders of the trial court dated 22.8.2012 in both the cases&nbsp; are&nbsp; set&nbsp; aside.</b></p><p><b>(c) The applications filed by the petitioners under section 227 Cr.P. C are&nbsp; allowed.&nbsp; The petitioners are discharged of the offence under section 3 (1 )(x) of the Act.</b></p><div><br></div>', '03d1bb8ac4c0db535a70ec282f559d86.jpg', 'ab169d94f65c39d195b70cea59285eb3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-25', 1, '', '', '2022-01-25 23:17:26', '2022-01-25 23:17:26'),
(1292, 'tUb8VMk0OUlI4MUexYADa0FL7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Imposition of realistic, punitive cost is necessary to prevent abuse of process of court. Karnataka High Court imposes Rs. 50,000 cost on husband who filed frivolous Habeas Corpus petition seeking custody of child from wife.  ', '<p><span style=\"font-weight: bolder;\">Gaurav Raj Jain vs State of Karnataka and others.&nbsp;<br></span><b>Writ Petition Habeus Corpus 109 of 2021 decided on 4 January 2022<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice B. Veerappa and Justice M.G. Uma.&nbsp;</b></p><p><b>The present writ petition is filed in the form of Habeas Corpus by the father of respondent No.4 seeking direction to the respondents for production of respondent&nbsp; No.4-Amaya.G.Jain&nbsp; before this Court and hand-over her custody to the petitioner in the interest of justice.</b></p><p><b>22. It is well settled law that with the passage of time, it&nbsp; has been realized that people used to feel proud to tell the truth in the courts, irrespective of the consequences, but that practice no longer proves true, in all cases. The court does not sit simply as an umpire in a contest between two parties and declare at the end of the combat as to who has won and who has lost, but it has a legal duty of its own, independent of parties, to take active role in the proceedings and reach at the truth, which is the foundation of administration of justice. Therefore, the truth should become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the courts to become active seekers of truth. To enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, prevarication and motivated falsehood, must be appropriately dealt with. The&nbsp; parties must state forthwith sufficient factual details to&nbsp; the extent that it reduces the ability to put forward false and exaggerated claims and a litigant must approach the court with&nbsp; clean hands. It is the bounden duty of the court to ensure that dishonesty and any attempt to surpass the legal process must be effectively curbed and the court must ensure that there is no&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">wrongful, unauthorized or unjust gain to anyone as a&nbsp; result&nbsp; of abuse of process of court. One way to curb this tendency is to impose realistic or punitive costs.</b></p><p><b>18. In the present case, admittedly the petitioner and respondent No.3 are husband and wife and the writ petition filed by the petitioner seeking divorce from his wife came to be&nbsp; dismissed&nbsp; as withdrawn. It is also not in dispute that out of their wedlock,&nbsp; baby girl was born and the said minor child is naturally with the custody of respondent No.3-Mother. As stated in the objections filed by respondent Nos.3 and 4, knowing fully well that the minor child&nbsp; is in safe custody of her mother, the petitioner filed the present writ petition in the form of Habeas Corpus for the relief sought for unnecessarily wasting public precious judicial time and&nbsp; unnecessarily misusing police force, which is meant to protect the people. Thereby, the petitioner instead of approaching proper and appropriate court for custody of his minor child, has misused the State machinery as well as approached this Court knowing fully well that his daughter is safe, hale and healthy with his wife. It is&nbsp; nothing but the abuse of the judicial process. Thereby, the&nbsp; petitioner is not entitled for the relief sought in the petition and the writ petition in form of Habeas Corpus is liable to be dismissed with costs.</b></p><p><b>23. For the reasons stated above, we answer the above point in negative holding that the petitioner-father of the&nbsp; minor&nbsp; child has not made out any ground to allow the writ petition and&nbsp; &nbsp;has abused the judicial process. Thereby, writ petition is liable to be dismissed imposing cost of Rs.50,000/- (Rupees Fifty thousand&nbsp; only) on the petitioner payable to the Police Welfare Fund, within&nbsp; one month from the date of receipt of the order.</b></p><p><b>(i) The writ petition is dismissed as devoid of any&nbsp; merits.</b></p><p><b>(ii) The petitioner shall pay the cost of Rs.50,000/- (Rupees Fifty thousand only) to the Police Welfare Fund, within one month from the date of receipt of copy of this order.</b></p><div><br></div>', 'f8f8140e574b262eeee09afc1a203255.JPG', 'da1f278ed8ce3332588b0d5869e89032.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-25', 1, '', '', '2022-01-26 01:18:41', '2022-01-26 01:18:41'),
(1293, 'XJEIjJ6aCmTaGvMT948iBkJjh', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Match fixing does not amount to cheating under Section 420 Indian Penal Code though it may indicate dishonesty, indiscipline and mental corruption of a player. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Abrar Kazi vs State of Karnataka and another&nbsp;<br></span><b>Criminal Petition 2929 of 2020 and connected matters decided on 10 January 2022<br></b></p><p><b>5. One point commonly urged by all the counsel for the petitioners is&nbsp; that match fixing is not an offence, nor has it been defined to be an offence in&nbsp; any&nbsp; law.&nbsp; And&nbsp; offence&nbsp; under&nbsp; section 420 of IPC cannot be imputed against the petitioners for, the essential ingredients for&nbsp; the&nbsp; said offence to constitute are&nbsp; not&nbsp; forthcoming&nbsp; in the charge sheet. Even if it is assumed&nbsp; for argument sake that the petitioners did involve in match fixing, it will not&nbsp; constitute an&nbsp; offence&nbsp; and at best it is breach of the Code of Conduct prescribed to the players by the BCCI.&nbsp; Action may&nbsp; be taken by the BCCI and in this case the Cricket Board has not taken any&nbsp; action&nbsp; against&nbsp; some&nbsp; of the petitioners who are players. In this view,&nbsp; charge sheet for the offence under section 420 IPC&nbsp; is not sustainable and for the same reason the offence of conspiracy punishable according to section 120B is also not sustainable.</b></p><p><b>8. I have considered the arguments. Firstly, one point of argument regarding registration of an FIR is to be dealt with. All the counsel for the petitioners have fussed over this aspect. It is true that the second respondent made a report to the Cubbon Park police for registration of FIR on the basis of information that he gathered while interrogating a player in connection with Crime No. 124/2019 . It appears that the information the second respondent gathered is in the form of confession of an accused and this is the reason for taking strong objection for registration of FIR in Crime No. 197/2019 which&nbsp; has&nbsp; given&nbsp; rise&nbsp; to charge sheet in the case on&nbsp; hand.&nbsp; Of&nbsp; course there is substance in the argument that the confession statement of an accused given before the police cannot be referred to in view of bar contained in section 25 of the Indian&nbsp; Evidence&nbsp; Act.&nbsp; But,&nbsp; the said bar is to the extent of proving the confession against the accused who made it, there is no prohibition as such to make use of any information that a police officer comes to know&nbsp; for&nbsp; the&nbsp; first time regarding a crime which might have&nbsp; taken&nbsp; place in the past and not detected till then, while interrogating an accused in&nbsp; connection&nbsp; with&nbsp; another case of crime. Supposing that an accused himself goes to police station&nbsp; and&nbsp; gives information about the offence committed by&nbsp; him, the police in such a circumstance can very well register an FIR and this proposition is well established [Faddi vs State of Madhya Pradesh, (AIR 1964 SC 1850) and Aghnoo Nagesia vs State of Bihar (AIR 1966&nbsp; SC&nbsp; 119)].&nbsp; If&nbsp; this is&nbsp; the position, why a statement given by a&nbsp; co- accused regarding another crime cannot be made&nbsp; use of for registration of FIR. In&nbsp; fact&nbsp; many&nbsp; incidents of theft, robbery or dacoity come to light only during such interrogations. It may be stated further that such statement can be made&nbsp; use&nbsp; of only for the limited purpose of registration of&nbsp; FIR and it cannot be used for proving it against an accused. Registration of FIR is not&nbsp; the&nbsp; end&nbsp; in&nbsp; itself and it is not a substantive piece of evidence also. Mere registration of FIR in this manner does&nbsp; not lead to convicting an accused, investigator has&nbsp; to collect independent evidence and further the prosecution must be able to prove its case beyond reasonable doubt. Therefore the entire argument that statement of&nbsp; a&nbsp; co-accused&nbsp; during interrogation in connection with some other crime cannot form basis for registration of FIR is totally unfounded.</b></p><p><b>10. However, the other common point urged by all the&nbsp; counsel is&nbsp; worth acceptance.&nbsp; According to the prosecution match fixing amounts&nbsp; to cheating and therefore the offence under&nbsp; section 420 IPC has been&nbsp; invoked&nbsp; in&nbsp; the&nbsp; charge&nbsp; sheet. For invoking offence under section 420 IPC, the essential ingredients to be present are deception, dishonest inducement of a person to deliver any property or to alter or destroy the&nbsp; whole or&nbsp; any&nbsp; part of a valuable security.&nbsp;</b></p><p><b>11. It is true that if a player indulges in&nbsp; match fixing, a general feeling will arise&nbsp; that&nbsp; he&nbsp; has cheated the lovers of the game. But, this&nbsp; general feeling does not give rise&nbsp; to&nbsp; an&nbsp; offence. The match fixing may indicate dishonesty, indiscipline and mental corruption of a player and&nbsp; for this purpose the BCCI is&nbsp; the authority&nbsp; to&nbsp; initiate disciplinary action. If the bye-laws of the BCCI provide for initiation of disciplinary action against a player, such an action is permitted but, registration of an FIR on the ground that a crime punishable under section 420 IPC has been committed, is not permitted. Even if the entire charge sheet averments are taken to be true&nbsp; on their face value, they do not constitute an offence.</b></p><p><b>12. One of the petitioners is a bookie said to have involved in betting. Sri Hashmath Pasha has relied upon a judgment of the Supreme Court in Board of Control for Cricket vs Cricket Association of Bihar and Others [2016 (8) SCC 535] where it is observed that betting is to be legalized. It was argued by the respondent that betting amounts to gaming which is an offence under the Karnataka Police Act. If section 2(7) of Karnataka Police Act is seen, its explanation very clearly says that game of chance does not include any athletic game or sport. Cricket is a sport and therefore even if betting takes place, it cannot be brought within the ambit of definition of ‘gaming’ found in Karnataka Police Act.</b></p><p><b>13. Sri Dhyan Chinnappa argued that section 120B of IPC is an&nbsp; independent&nbsp; offence&nbsp; and therefore notwithstanding the fact that ingredients for section 420 IPC can be said to be not there for argument sake, still the accused&nbsp; can&nbsp; be&nbsp; prosecuted for offence under 120B and in&nbsp; this regard he has placed reliance on the judgment of a co-ordinate bench of this court in the case&nbsp; of&nbsp; Sachin Narayan vs Income&nbsp; Tax Department&nbsp; and Another (W.P.5299/2019 and connected writ petitions). There is no second word with regard to his argument that section 120B is an independent offence but, to invoke this offence of conspiracy, as has been argued by Sri Hashmath Pasha, the allegations found in the charge sheet must constitute an offence in&nbsp; connection&nbsp; with&nbsp; which conspiracy is alleged. As discussed above,&nbsp; the allegations found in the charge sheet do not constitute an offence under section 420 IPC and therefore offence under section 120B cannot be&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">invoked in the facts and circumstances. Therefore the argument of Sri Dhyan Chinnappa cannot be accepted.</b></p><p><b>14. From the foregoing discussion, I come to conclusion that all these petitions deserve to be allowed. The proceedings&nbsp; against&nbsp; the&nbsp; petitioners in C. C.2939/2020 on the file&nbsp; of&nbsp; I&nbsp; ACMM, Bengaluru, are quashed.</b></p><p><br></p>', 'ccb3558a602f3d5b7110fc745551515f.jpg', '102076b704056ca2ae8012ca704bf451.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-25', 1, '', '', '2022-01-26 01:44:36', '2022-01-26 01:44:36'),
(1294, 'Em7WT9Pu9cmYhGR3iqEP2htor', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Death of party during suit. LRs not brought on record. Whoever is entitled to be but has not been brought on record in a pending suit or proceeding would be entitled to prefer an appeal. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin-bottom: 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><i><span style=\"font-size: 10pt; font-family: Verdana, sans-serif;\">Raj Kumar v. Sardari Lal</span></i><span style=\"font-size: 10pt; font-family: Verdana, sans-serif;\">, (2004) 2 SCC 601 </span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"><o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\">5.</span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"> The doctrine of <i>lis pendens</i> expressed in the\r\nmaxim “<i>ut lite pendente nihil innovetur</i>” (during a litigation nothing\r\nnew should be introduced) has been statutorily incorporated in Section 52 of\r\nthe Transfer of Property Act, 1882. A defendant cannot, by alienating property\r\nduring the pendency of litigation, venture into depriving the successful\r\nplaintiff of the fruits of the decree. The transferee <i>pendente lite</i> is\r\ntreated in the eye of the law as a representative-in-interest of the\r\njudgment-debtor and held bound by the decree passed against the judgment-debtor\r\nthough neither has the defendant chosen to bring the transferee on record by\r\napprising his opponent and the court of the transfer made by him nor has the\r\ntransferee chosen to come on record by taking recourse to Order 22 Rule 10 CPC.\r\nIn case of an assignment, creation or devolution of any interest during the\r\npendency of any suit, Order 22 Rule 10 CPC confers a discretion on the court\r\nhearing the suit to grant leave for the person in or upon whom such interest\r\nhas come to vest or devolve to be brought on record. Bringing of a <i>lis\r\npendens</i> transferee on record is not as of right but in the discretion\r\nof the court. Though not brought on record the <i>lis pendens</i> transferee\r\nremains bound by the decree.<o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\">10.</span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"> The law laid down by a four-Judge Bench of this Court in <i>Saila\r\nBala Dassi</i> v. <i>Nirmala Sundari Dassi</i> [AIR 1958 SC 394\r\n: 1958 SCR 1287] is apt for resolving the issue arising for decision herein. A\r\ntransferee of property from the defendant during the pendency of the suit\r\nsought himself to be brought on record at the stage of appeal. The High Court\r\ndismissed the application as it was pressed only by reference to Order 22 Rule\r\n10 CPC and it was conceded by the applicant that, not being a person who had\r\nobtained a transfer pending appeal, he was not covered within the scope of\r\nOrder 22 Rule 10. In an appeal preferred by such transferee, this Court upheld\r\nthe view of the High Court that a transferee prior to the filing of the appeal\r\ncould not be brought on record in appeal by reference to Order 22 Rule 10 CPC.\r\nHowever, the Court held that an appeal is a proceeding for the purpose of\r\nSection 146 and further, the expression “claiming under” is wide enough to\r\ninclude cases of devolution and assignment mentioned in Order 22 Rule 10.\r\nWhoever is entitled to be but has not been brought on record under Order 22\r\nRule 10 in a pending suit or proceeding would be entitled to prefer an appeal\r\nagainst the decree or order passed therein if his assignor could have filed\r\nsuch an appeal, there being no prohibition against it in the Code. A person\r\nhaving acquired an interest in suit property during the pendency of the suit\r\nand seeking to be brought on record at the stage of the appeal can do so by\r\nreference to Section 146 CPC which provision being a beneficent provision\r\nshould be construed liberally and so as to advance justice and not in a\r\nrestricted or technical sense. Their Lordships held that being a\r\npurchaser <i>pendente lite</i>, a person will be bound by the proceedings\r\ntaken by the successful party in execution of decree and justice requires that\r\nsuch purchaser should be given an opportunity to protect his rights.<o:p></o:p></span></b></p><p>\r\n\r\n\r\n\r\n\r\n\r\n</p><p class=\"MsoNormal\" style=\"line-height:normal\"><o:p><b> </b></o:p></p>', '29a8ed7736bff09677fa6e943963710d.JPG', '895fa0912825d919386a1b863c54234a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-27', 1, '', '', '2022-01-27 22:43:03', '2022-01-27 22:53:16'),
(2818, 'ztbHzmYyELq7M77xU7roxrFZN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Section 12 is the salt of the statute; if by delay the salt would lose its savour; the statute would lose its flavour”. Karnataka High Court issues directions for speedy disposal of applications under the Protection of Women from Domestic Violence Act.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kavitha M Vs Raghu and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 12703 of 2022 decided on 16 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>The petitioner/wife of the 1st respondent is before this Court seeking a direction to dispose of applications dated 15.10.2018 filed by her in C.Misc.No.170 of 2018 before the II Metropolitan Magistrate Traffic Court at Bangalore under Sections 12, 19(1)(E) & (F), 20 & 22, 20 & 23(2) and 23(2) of the Protection of Women from Domestic Violence Act, 2005 (‘the Act’ for short) within the time frame.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"> </span><font face=\"Calibri, sans-serif\">2.<span style=\"white-space: pre;\">	</span>Brief facts that lead the petitioner to this court in the subject petition, as borne out from the pleadings, are as follows:- </font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The marriage between the petitioner and 1st respondent takes place on 16-11-2016. From the wedlock a child is born on 24-08-2017. The relationship between the petitioner and the 1st respondent appears to have turned sore and the petitioner/wife institutes proceedings under the Act invoking Section 12 of the Act and also files several other applications under Section 23 of the Act seeking non-alienation, encumbrance of schedule property, seeking alternative accommodation, monetary relief, ex-parte maintenance and return of valuable articles. In all, there were five applications filed by the petitioner on 15-10-2018. The learned Magistrate in terms of his order dated 29-10-2018 rejected the application for non-alienation or encumbering the schedule property. Except that order, the learned Magistrate did not pass any order on any other applications. The 1st respondent appeared on 03-05-2019 and filed objections to the applications. On 04-08-2021 the petitioner filed an affidavit of assets and liability statement. For filing of assets and liabilities statement of the 1st respondent seven dates were granted to the 1st respondent/husband between 04-08-2021 and 18-04-2022. The learned counsel for the petitioner submits that assets and liabilities statement is not filed by the 1st respondent even as on date. Being aggrieved by non-passing of orders on several applications that are pending consideration for close to 5 years, the petitioner is before this Court seeking an early disposal of those applications filed along with the claim on 15-10-2018.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>The afore-narrated facts and the link in the chain of events are not in dispute and they lie in a narrow compass. What is required to be decided is – </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>“Whether a direction should be issued to the concerned Court to dispose of the applications filed under the Act within a time frame?”</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>8... Section 20 empowers the Magistrate to direct payment of monitory relief to meet expenses. The monitory relief to be granted under the section should be adequate, fair and reasonable consistent with the standard of living to which the aggrieved person is accustomed; the Magistrate also has power to order appropriate lumpsum payment or monthly payment of maintenance and such payment is to be directed by the Magistrate to be paid within a specified period and upon failure on the part of the respondent to make payment, the Magistrate has power to direct the employer or a debtor of the respondent to directly pay to the aggrieved person. These are various powers under Section 20 conferred upon the Magistrate to pass in every case where application is filed under sub-section (1) of Section 12.<span style=\"white-space:pre\">	</span>Having scanned the anatomy of the Act, a dip into the facts of the case, on the strength of the mandate of the statute, now becomes germane. They lie in a narrow compass.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>12.<span style=\"white-space:pre\">	</span>The petitioner, on 15-10-2018, files an application under Section 12 (supra) and along with it files five applications under different provisions of the Act. The petitioner while preferring an application under Section 12 prefers application under Section 19(1)(e) and (f) which deals with restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate or directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or pay rent for the same. Another application was filed under Section 20 seeking monetary relief. The application seeking non-alienation and encumbering of the schedule property was rejected by the learned Magistrate. Therefore, applications seeking alternative accommodation, monetary relief and ex-parte interim maintenance were all pending consideration and they are pending consideration even as on date, despite the passage of 52 months after their filing.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>13.<span style=\"white-space:pre\">	</span>A perusal at the afore-quoted provisions i.e., Sections 19 and 20 which permit the aggrieved person to seek interim protection by way of residence order or monetary relief as the case would be, and even the custody orders under Section 21, all point out to one provision i.e., Section 12. If an application is filed by the aggrieved person under sub-section (1) of Section 12 and applications are filed under Sections 18, 19 and 20 they have to be decided within the time frame stipulated under sub-section (5) of Section 12 of the Act, as sub-section (5) of Section 12 mandates that any application filed before the learned Magistrate while filing an application under Section 12 should be decided by the Magistrate within 60 days from the date of its filing. Therefore, any interim protection that is sought by filing an application under Sections 19 and 20 ought to be decided by the learned Magistrate within 60 days from the date of its filing as they form a part of the mandate of the statute i.e., Section 12. Section 12 therefore becomes the heart and soul of the entire Act and applications under Sections 19 & 20 are clearly maintainable along with an application under Section 12. Therefore, those applications would also be bound by the time limit stipulated under Section 12.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>Sub-section (1) of Section 28 directs that save as otherwise provided in this Act, all proceedings under Sections 12, 18 to 23 and offences under Section 31 shall be governed by the provisions of the CrPC, 1973. Sub-section (2) mandates that nothing in sub- section (1) shall prevent the Court from laying down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23. What would unmistakably emerge is, notwithstanding the proceedings governed by the CrPC, the Court considering the application under Section 12 is empowered to lay down its own procedure both under Section 12 and under Section 23 of the Act.   It thus becomes its inherent power. If the purpose for which the Act was brought into force and the soul of Section 12 is noticed, notwithstanding the fact that the procedure stipulated under the CrPC is to be followed and since sub-section (2) of Section 28 directs that nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of the application, the concerned Court i.e., the learned Magistrate shall have the liberty to lay down his own procedure for disposal of applications under Section 12 and sub-section (2) of Section 23 of the Act.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>14.<span style=\"white-space:pre\">	</span>In the aforesaid circumstances, reference being made to the judgment of the Apex Court in the case of KUNAPAREDDY v. KUNAPAREDDY SWARNA KUMARI. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>The Apex Court, in the aforesaid judgment, while considering the purport of promulgation of the Act and its provisions clearly holds that sub-section (2) of Section 28 is significant. The concerned Court is well within its powers to lay down its procedure for disposal of the application under Section 12 or Section 23(2) of the Act. The Apex Court also recognizes that this provision is incorporated by the Legislature keeping a definite purpose for which it is enacted. This Court also recognizes the power of the Magistrate under Section 23 to grant an interim order ex-parte owing to the specific power under sub-section (2) of Section 23 of the Act which is carved out in that behalf. In the light of the judgment of the Apex Court, any other law that is laid down by the co-ordinate Benches of this Court will have to be placed into the oblivion on two counts, as the heart and soul of the Act is found in Section 12 and its beat in Section 23. The reliance placed by the respondent/State upon the judgment of the co-ordinate Bench in the case of KRISHNA MURTHY NOOKULA v. Y SAVITHA is in clear contradiction with what the Apex Court has held. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>15.<span style=\"white-space:pre\">	</span>On a coalesce of the aforesaid analysis of the provisions of the Act and the law laid down by the Apex Court and that of the co-ordinate Bench of this Court, what would unmistakably emerge is that applications concerning protection orders under Section 18, residence orders under Section 19 and monetary relief under Section 20, all of which direct that if the learned Magistrate is prima facie finds justification he could grant those reliefs. Section 23 of the Act empowers the learned Magistrate to grant of interim and ex-parte orders in any application under Sections 18, 19, 20 and 21 or even 22 against the respondent, granting interim relief in terms of the application/s so filed cannot be after an eon, it has to be granted anon. Therefore, there is no warrant for any Magistrate to await for the procedure as stipulated under the CrPC to get concluded, and then grant the relief that is sought in the application. It defeats the very life blood of the Act. If Section 12 is the one under which applications are filed before the concerned Court, sub-section (5) of Section 12 mandates disposal within 60 days.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>16.<span style=\"white-space:pre\">	</span>It is quite appalling that an application filed by the petitioner under Section 12 of the Act for the relief as available under Sections 19, 20 and 22 of the Act has been kept pending for close to 52 months after its filing, notwithstanding the fact that the mandate of the Act is disposal of those applications within 60 days. The applications being kept pending would display apathy towards the litigants. The reason for the applications being kept pending is free fall for adjournments being granted by the concerned Court. In the case at hand, close to two years have passed by and the Court has gone on granting time to the husband for filing assets and liabilities statement to determine the payment of maintenance to the wife under the provisions of the Act while the wife/aggrieved person suffers. An application that has to be disposed of within 60 days, has taken 52 months, and is yet to be disposed of.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>17.<span style=\"white-space:pre\">	</span>The law Courts which exist to remedy the wrong when it is brought to its notice has to act swiftly, as it is trite that, actus curiae neminem gravabit that the act of Court should prejudice no person. If an act of the Court should not prejudice any person; the Court should not permit any procrastination of the proceedings before it. A woman, who is a victim of domestic violence, knocking at the doors of the Magistrate, under the Act seeking maintenance or shelter such grievance, will have to be addressed with immediacy. It is for this reason that the statute mandates that such applications have to be disposed of within 60 days in terms of sub-section (5) of Section 12 of the Act. The mandate is unequivocal as sub-section (5) mandates that the Magistrate shall endeavour to dispose every application; every application would mean each and every, not a few or more. If the delay takes away the very soul of the enactment, such delay would definitely deny justice. It is, therefore, often said that “justice delayed is justice denied”. If the facts of the case at hand are taken note of, it would display that the petitioner has been denied maintenance and other benefits available under the Act for close to five years now, after she has been out of the matrimonial house.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b> 18.<span style=\"white-space:pre\">	</span>In the aforesaid circumstances, it becomes necessary for this Court to direct the Magistrates, to henceforth decide the applications filed by the aggrieved persons within the time frame. The applications could be for the benefit of Sections 19 and 20 of the Act which are filed along with the application under Section 12 of the Act. Any delay beyond 60 days to consider the application should be only for reasons to be recorded in writing. For a maintenance application, the concerned Court shall direct the husband, after receipt of notice, to file his assets and liabilities statement within four weeks from the date of appearance and in the event, he would dodge appearance before Court, the Court is empowered to grant interim maintenance, on what is filed by the aggrieved person as assets and liabilities statement and as sought in the application, failing which, such cases, like the one that is brought before this Court, would mushroom and defeat the very purport of the promulgation of the Act.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>19.<span style=\"white-space:pre\">	</span>In view of the preceding analysis, I deem it appropriate to issue the following directions: </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(a)<span style=\"white-space:pre\">	</span>Applications filed along with the application under Section 12 be it under Section 18, 19 or 20 of the Act, the concerned Court shall decide those applications filed along with the petition under Section 12 within 60 days from the date of its filing; </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(b)<span style=\"white-space:pre\">	</span>The husband shall be granted 4 weeks time to file his assets and liabilities statement for a decision on an application filed under Section 20 of the Act. If it is not filed within the time frame, the concerned Court shall accept the application filed by the wife/aggrieved person and pass appropriate orders in accordance with law;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b> (c)<span style=\"white-space:pre\">	</span>Objections if any, to the application/s filed by the aggrieved person under Sections 18 and 19 by the opposite party, shall be filed within 4 weeks from the date of receipt of notice, failing which, the Court concerned will be at liberty to pass appropriate orders in accordance with law; </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(d)<span style=\"white-space:pre\">	</span>To achieve the said timeline, the concerned Court shall draw up and regulate its procedure in terms of its inherent power under Section 28(2) of the Act.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>20.<span style=\"white-space:pre\">	</span>Adherence to the aforesaid timeline would be of paramount importance, as remedy under Section 12 to an aggrieved person is imperative. Therefore, timely disposal of such applications are also imperative as Section 12 is the salt of the statute; if by delay the salt would lose its savour; the statute would lose its flavour.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>ORDE<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">R</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(i)<span style=\"white-space:pre\">	</span>Writ Petition is allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5d3232d82ed828fb07e788c65773c7fe.jpeg', '5507623e468d58525aa4844190756f6a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-23', 1, '', '', '2023-03-21 14:08:33', '2023-03-23 12:32:43');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1296, 'RdwNGdXfjDc2PcIiDJDuDt1CB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act. Power of the Tribunal or the High Court to award just and fair compensation to the victim is not taken away because of prayer for a lesser amount. Karnataka High Court. ', '<p><b>Basavaraj vs Umesh and another&nbsp;<br>Miscellaneous First Appeal 103473 of 2017 decided on 11 January 2022<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice S.G. Pandit and Justice Anant Ramanath Hegde&nbsp;</b></p><p><b>The task of adjudicating quantum of compensation payable under the non-pecuniary heads like pain and suffering, loss of amenities in life and loss of expectation of life, is not easy though appears to be easy. The task gets&nbsp; a bit more difficult if the claimant suffers a permanent disability at a young age. While quantifying the compensation under the non-pecuniary heads, the courts need to pause and ponder, particularly in a situation when the claimant suffers permanent disability.</b></p><p><b>11.<span style=\"white-space:pre\">	</span>From the evidence placed before the Tribunal, it can be safely concluded that the petitioner has suffered permanent disability in respect of his sexual organ, as well as around hip. The doctor has opined that the situation is irreversible. There is no marriage prospect for the petitioner. The loss of the petitioner, who is deprived of marriage prospects and pleasure of marital life and having children, cannot be adequately compensated in terms of money. Nevertheless, to mitigate the pain and agony, monetary compensation is to be awarded. The quantum of compensation to be awarded by the Tribunal depends upon the gravity of the injury, the pain and agony suffered by the claimant. There should be some logical and rational nexus between the compensation awarded and the pain suffered by the claimant. The compensation should offer solace to the victim of the accident. As observed above, the petitioner who is aged 14 years has suffered an injury to his sexual organ causing permanent disability. Ex.P14&nbsp; is the disability certificate issued by the doctor and said certificate reveals the petitioner has suffered 40% permanent physical disability and loss of physical function concerning the pelvic region. Under the circumstance, the award of Rs.50,000/- on the head of loss of amenities and enjoyment of life is extremely conservative, to say the least. Award of Rs.54,000=00 under the head loss of future earning capacity and award of Rs.50,000=00 under the head loss of amenities and enjoyment of life are not in sync with the settled principles governing compensation. In fact, the award under these two heads cannot be termed as compensation at all.</b></p><p><b>12.<span style=\"white-space:pre\">	</span>Before deciding on the quantum of compensation payable under the non-pecuniary heads, it is useful to refer to the decision of the Hon’ble Apex Court in the matter of Rekha Jain Vs National Insurance Company ( 2013 ) 8 SCC 389. The Hon’ble Apex Court while dealing with the compensation payable to a victim of a motor vehicle accident under the pecuniary and non- pecuniary heads has referred to various judgments rendered by the Apex Court, High Court as well as English Courts. The Hon’ble Apex Court has held that, while awarding compensation in case of personal injuries, the court has to take into account the human rights angle. The Apex court has said, possession of one’s own body is the first and most valuable of all human rights and bodily injury should be equated with deprivation of basic human rights which entitles compensation depending upon the gravity of the injury. It is also useful to quote some of the paragraphs of the above-said judgment, wherein the Hon’ble Apex Court has referred to various authoritative decisions and the texts.</b></p><p><b>14.<span style=\"white-space:pre\">	</span>The concept of the institution of marriage is one of the noblest concepts evolved by society. Marriage, in addition to providing support, happiness, companion and progeny will also confer purpose and meaning to life. Married life opens up one of the most important facets of life. After marriage, the married couple lives for one another sharing the responsibility, pleasure and sorrow of life. Children bring a source of joy and hope. Since the marriage prospect of the claimant is wiped out, the claimant is deprived of all the pleasure and benefits of married life. The loss is so huge and is incapable of evaluation in terms of money.&nbsp;</b></p><p><b>15.<span style=\"white-space:pre\">	</span>Given the kind of disability suffered by the claimant, the mental trauma which the claimant has to undergo for the rest of his life, is much more painful than the physical pain that he has suffered immediately after the accident. The mental trauma of having to remain single, and answering the curious questions posed by the people around throughout life, for not getting married, are some of the things not easy to cope with. The trauma is going to be perennial and unabated. Such being the position, the duty is cast upon the Tribunals and Courts to award just compensation to ensure that the unbearable mental trauma is mitigated to the extent possible and the claimant can live with some dignity and find some solace in the monetary compensation awarded.</b></p><p><b>22.<span style=\"white-space:pre\">	</span>As the compensation awarded by this court is higher than what is claimed, the question naturally arises whether this court is justified in doing so? The Motor Vehicles Act, 1988, is benevolent legislation. The duty is cast upon the Tribunal to award just and fair compensation to the victim of a Motor Vehicle Accident. Though the claim made in the petition is less than what the Tribunal or Court finds as just and fair compensation, the power of the Tribunal or the Court to award just and fair compensation to the victim is not taken away because of prayer for a lesser amount. This court is conscious of the fact that it is difficult to assess the compensation under the non- pecuniary heads as the compensation under the heads of pain and suffering, loss of amenities in life and loss of expectation of life would not come with a price label. It has to be adjudicated in each case taking into consideration several factors. Defective or inadequate prayer won’t be a hurdle to the Tribunal and Courts to assess and award just compensation. The compensation to be awarded by the Tribunal is not bogged down by the figure mentioned in&nbsp; the prayer column of the claim petition. On the other hand, Tribunals and courts are guided by the principles of law and sense of justice while adjudicating the compensation under the provisions of the Motor Vehicles Act. If relief is&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not moulded by awarding higher compensation, we will be failing in our duty.</b></p><p><b>23.<span style=\"white-space:pre\">	</span>Accordingly, the appeal succeeds and the claimant is entitled to total compensation of Rs.17,68,000=00.</b></p><p><b>&nbsp;</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '7dc3dae694b3aca58beeffa3fbf71363.JPG', 'a516a185d6d3e18a1d345496894be4cb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-28', 1, '', '', '2022-01-29 00:46:15', '2022-01-29 00:48:14'),
(1297, 'H6hgcFpszuaTq3D9EfqVldUTH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Reservation in promotion. Judgment in M. Nagaraj operates prospectively. Collection of data regarding inadequacy of representation can only be on the basis of \'cadres\' and not \'groups’. Supreme Court. ', '<p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Jarnail Singh &amp; Ors. vs Lachhmi Narain Gupta &amp; Ors&nbsp;<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Civil Appeal No. 629 of 2022. Order dated 28 January 2022<br>Justice L. Nageswara Rao, Justice Sanjiv Khanna and Justice B.R. Gavai</span></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgement: <a href=\"https://main.sci.gov.in/supremecourt/2011/34614/34614_2011_35_1501_32956_Judgement_28-Jan-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2011/34614/34614_2011_35_1501_32956_Judgement_28-Jan-2022.pdf</a></span><br></b></p><p><b>1)What is the yardstick by which, according to  M. Nagaraj &amp; Ors.\r\nv. Union of India &amp; Ors. (2006) 8 SCC 212, one would arrive at quantifiable\r\ndata showing inadequacy of representation of SCs\r\nand STs in public employment?<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2)What is the unit with respect to which quantifiable\r\ndata showing inadequacy of representation is\r\nrequired to be collected?\r\n3)Whether proportion of the population of SCs and STs\r\nto the population of India should be taken to be the\r\ntest for determining adequacy of representation in\r\npromotional posts for the purposes of Article 16(4-A)?\r\n4)Should there be a time period for reviewing\r\ninadequacy of representation?\r\n5)Whether the judgment in M. Nagaraj (supra) can be\r\nsaid to operate prospectively?\r\n6)Whether quantifiable data showing inadequacy of\r\nrepresentation can be collected on the basis of\r\nsampling methods, as held by this Court in B.K.\r\nPavitra &amp; Ors. v. Union of India &amp; Ors.&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(2019) 16 SCC 129?</span></b></p><p><b>QUESTION 1. PARA 16. Determination of inadequate representation of SCs and\r\nSTs in services under a State is left to the discretion of the\r\nState, as the determination depends upon myriad factors\r\nwhich this Court cannot envisage.....Therefore, we are of the opinion that no yardstick can\r\nbe laid down by this Court for determining the adequacy of\r\nrepresentation of SCs and STs in promotional posts for the\r\npurpose of providing reservation.</b></p><p><b>QUESTION 2. PARA 29. In the Office Memorandum dated 02.07.1997, the\r\nUnion of India set out the principles for making and\r\noperating post-based rosters, in which it has been expressly\r\nstated that cadre is to be construed as the number of posts\r\nin a particular grade. It is made clear that rosters have\r\nbeen prepared grade-wise which are reviewed on a yearly\r\nbasis and that reservation in promotions is implemented on\r\nthe basis of these rosters, which operate grade-wise. In M.\r\nNagaraj (supra), this Court approved that the percentage of\r\nreservation in promotions was to be applied to the entire\r\ncadre strength, as held in R.K. Sabharwal (supra). While\r\ndoing so, this Court in M. Nagaraj (supra) made it clear\r\nthat the unit for operation of the roster would be the cadre\r\nstrength. Before providing for reservation in promotions to\r\na cadre, the State is obligated to collect quantifiable data\r\nregarding inadequacy of representation of SCs and STs.Collection of information regarding inadequacy of\r\nrepresentation of SCs and STs cannot be with reference to\r\nthe entire service or ‘class’/‘group’ but it should be relatable\r\nto the grade/category of posts to which promotion is sought.\r\nCadre, which should be the unit for the purpose of collection\r\nof quantifiable data in relation to the promotional post(s),\r\nwould be meaningless if data pertaining to representation of\r\nSCs and STs is with reference to the entire service.</b></p><p><b>QUESTION 3. PARA 30.....This Court in\r\nJarnail Singh (supra) found no fault with M. Nagaraj\r\n(supra) regarding the test for determining the adequacy of\r\nrepresentation in promotional posts in the State. While\r\nemphasising the contrast in the language used between\r\nArticle 330 and Articles 16(4-A) and 16(4-B) of the\r\nConstitution, this Court declined the invitation of the learned\r\nAttorney General for India to hold that the proportion of SCs\r\nand STs to the population of India should be the test for\r\ndetermining inadequacy of representation in promotional\r\nposts. Therefore, we are not persuaded to express any\r\nopinion on this aspect. It is for the State to assess the\r\ninadequacy of representation of SCs and STs in promotional\r\nposts, by taking into account relevant factors.&nbsp;</b></p><p><b>QUESTION 4. PARA 31. There is near unanimity amongst the counsel for both\r\nsides that the data collected to establish inadequacy of\r\nrepresentation, which forms the basis for providing&nbsp;reservation for promotions, should be reviewed periodically.\r\nMs. Indira Jaising, learned Senior Counsel appearing for\r\nmembers of the reserved categories, supported the\r\nsubmissions of the learned Attorney General for India that a\r\nreview should be conducted every 10 years. Mr. Gopal\r\nSankaranarayanan, learned Senior Counsel, submitted that\r\nit is time for reservation in public employment to be\r\ndiscontinued. Additionally, he submitted that the lion’s\r\nshare of reservation for members of SCs and STs accrued to\r\nthe benefit of a select few within these categories, which\r\nfurther strengthened the requirement for review to appraise\r\nwhether certain groups/classes within these categories had\r\nachieved the desired representation. We are not inclined to\r\nexpress any view on discontinuation of reservations in\r\ntotality, which is completely within the domain of the\r\nlegislature and the executive. As regards review, we are of\r\nthe opinion that data collected to determine inadequacy of\r\nrepresentation for the purpose of providing reservation in\r\npromotions needs to be reviewed periodically. The period\r\nfor review should be reasonable and is left to the\r\nGovernment to set out.</b></p><p><b>QUESTION 5. PARA 42. This Court in Golak Nath (supra) and Ashok Kumar\r\nGupta (supra), referred to above, has laid down that Article\r\n142 empowers this Court to mould the relief to do complete\r\njustice. To conclude this point, the purpose of holding that\r\nM. Nagaraj (supra) would have prospective effect is only to\r\navoid chaos and confusion that would ensue from its\r\nretrospective operation, as it would have a debilitating&nbsp;effect on a very large number of employees, who may have\r\navailed of reservation in promotions without there being\r\nstrict compliance of the conditions prescribed in M.\r\nNagaraj (supra). Most of them would have already retired\r\nfrom service on attaining the age of superannuation. The\r\njudgment of M. Nagaraj (supra) was delivered in 2006,\r\ninterpreting Article 16(4-A) of the Constitution which came\r\ninto force in 1995. As making the principles laid down in M.\r\nNagaraj (supra) effective from the year 1995 would be\r\ndetrimental to the interests of a number of civil servants\r\nand would have an effect of unsettling the seniority of\r\nindividuals over a long period of time, it is necessary that\r\nthe judgment of M. Nagaraj (supra) should be declared to\r\nhave prospective effect.<br></b></p><p><b>QUESTION 6. PARA 47. The State should justify reservation in promotions with\r\nrespect to the cadre to which promotion is made. Taking\r\ninto account the data pertaining to a \'group’, which would\r\nbe an amalgamation of certain cadres in a service, would\r\nnot give the correct picture of the inadequacy of\r\nrepresentation of SCs and STs in the cadre in relation to\r\nwhich reservation in promotions is sought to be made.\r\nRosters are prepared cadre-wise and not group-wise.\r\nSampling method which was adopted by the Ratna Prabha\r\nCommittee might be a statistical formula appropriate for\r\ncollection of data. However, for the purpose of collection of\r\nquantifiable data to assess representation of SCs and STs for\r\nthe purpose of providing reservation in promotions, cadre,\r\nwhich is a part of a \'group’, is the unit and the data has to&nbsp;be collected with respect to each cadre. Therefore, we hold\r\nthat the conclusion of this Court in B.K. Pavitra II (supra)\r\napproving the collection of data on the basis of \'groups’ and\r\nnot cadres is contrary to the law laid down by this Court in\r\nM. Nagaraj (supra) and Jarnail Singh (supra).\r\n</b></p><p><b>48. It is made clear that we have not expressed any\r\nopinion on the merits of any individual case as we have only\r\nanswered the common issues that were formulated after\r\nhearing the parties.\r\n49. List the matters on 24/2/2022 for further hearing. &nbsp;<br></b></p><p><b><br></b></p><p><b><br></b></p><p> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></p>', '734ce67bb99f54a97ab6bcbaa4927a5e.JPG', '3d027260371a3cf12d80d418becd1a5d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-29', 1, '', '', '2022-01-29 18:03:45', '2022-01-29 18:03:45'),
(1298, 'BgNgUUdlRVx8f5AMtHCEyIO9L', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Though public control of social or religious charities is essential, State cannot be allowed to appropriate monies which rightly belong to the endowment. Supreme Court.  ', '<p><b>Parsi Zoroastrian Anjuman, MHOW vs The Sub Divisional Officer/The Registrar of Public Trusts and another.<br>Civil Appeal 490 of 2022 decided on 28 January 2022<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice Uday Umesh Lalit, Justice S. Ravindra Bhat and Justice Bela M. Trivedi.&nbsp;</span><br></b></p><p><b>Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2018/46423/46423_2018_32_1501_32969_Judgement_28-Jan-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/46423/46423_2018_32_1501_32969_Judgement_28-Jan-2022.pdf</a><br></b></p><p><b>1. Leave granted. This appeal by special leave is directed against the judgment of\r\na Division Bench of the Madhya Pradesh High Court at Indore, dismissing an\r\nappeal1\r\n. The judgment confirmed an order of the learned Single Judge, who in turn,\r\nhad affirmed the rejection of the application filed by the appellant, Parsi Zoroastrian\r\nAnjuman, Mhow (hereafter referred to as “the trust”), seeking sanction for the\r\ndisposal of its trust property.<br></b></p><p><b>27. Public control of charities (whether social or religious) has been recognized in\r\nour country for over a century. In the context of religious endowments, such public\r\ncontrol is essential, for the simple reason that in its absence, there is likelihood of\r\ndiversion of monies and properties accumulated through public donation and gifts.\r\nThe role of the designated state official (commissioner, or registrar, etc.) is to ensure\r\nthat accounts are properly maintained; monies are expended in accordance with the\r\naims and objects of the endowments; the proper rituals are conducted, etc. Such\r\nregulation does not mean that the state is allowed to appropriate monies which rightly\r\nbelong to the endowment. In the case of public charities and trusts, slightly different\r\nconsiderations prevail. The aim of public control is to ensure that the trust is\r\nadministered efficiently and smoothly. The state interest is that far, and no more; it\r\ncannot mean that the state can dictate what decisions can or cannot be taken. In the\r\nspecific context of alienation of properties, depending on the nature of the oversight,\r\nthe state’s interest is to ensure that valuable assets of public trusts are not frittered\r\naway. It is for this reason, that provisions like Section 36 clearly enunciate a principle\r\nthat the Commissioner can impose such conditions as may be appropriate. However,&nbsp;the statute in the present case (the M.P. Public Trusts Act) does not contain such a\r\npower to impose conditions; the only considerations that weigh with the officer\r\n(Registrar) are the stipulations in law, or in the instrument of public interest. Other\r\nthan these considerations, the principle of autonomy and democratic decision-making\r\ncannot be undermined. Any organization which is self-governed, cannot be subjected\r\nto overarching state control. As long as its decisions are well informed, and grounded\r\non relevant considerations, the interests of the trust are those defined by its members.\r\nAny measure of public control enacted through express stipulations in law, should not\r\nbe expanded to such an extent that the right to freedom of association, under Article\r\n19 (1) (c), is reduced to an empty husk, bereft of meaningful exercise of choice. <br></b></p><p><b>30. The impugned judgment and the decision of the Registrar are hereby set aside.\r\nThe appeal succeeds, in terms indicated in the preceding paragraph, and is allowed.\r\nThere shall be no order on costs.<br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'ed19788e248257c41b54ce85fd6eb955.jpeg', '18143c24d42eb9a178407cedf28971e0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-29', 1, '', '', '2022-01-29 18:38:08', '2022-01-29 18:38:08'),
(1299, 'TniowGms3EUxXGKes1fsRr5sE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Supreme Court upholds full bench decision of the Karnataka High Court in Munnaiah vs The Deputy Commissioner on SC/ST (PTCL) Act.  ', '<p><b>S U P R E M E C O U R T O F I N D I A\r\n RECORD OF PROCEEDINGS\r\nPetition(s) for Special Leave to Appeal (C) No(s). 21079/2021\r\n(Arising out of impugned final judgment and order dated 05-07-2021\r\nin WP No. 60483/2016 (SC-ST) passed by the High Court of Karnataka\r\nat Bengaluru)\r\nSRI MUNNAIAH & ANR. Petitioner(s)\r\n VERSUS\r\nTHE DEPUTY COMMISSIONER & ORS. Respondent(s)\r\n(FOR ADMISSION and I.R.)\r\nDate : 28-01-2022 This petition was called on for hearing today.\r\nCORAM : HON\'BLE MR. JUSTICE HEMANT GUPTA\r\n HON\'BLE MR. JUSTICE V. RAMASUBRAMANIAN<br></b></p><p><b>The present Special Leave Petition is directed against a\r\nFull Bench judgment of High Court of Karnataka on 05.07.2021.\r\n</b></p><p><b>The father of the petitioner no.1 sold land on\r\n30.10.1996. It was on 10.06.2008, the petitioners filed an\r\napplication to seek restoration of the land in their favour. The\r\nground to seek restoration of the land was that the permission of\r\nthe State Government under Section 4 of the Karnataka Scheduled  Castes and Scheduled Tribes (Prohibition of Transfer of Certain\r\nLands) Act, 1973 was not sought. </b></p><p><b>\r\n We do not find any merit in the Special Leave Petition\r\nat the instance of the petitioners disputing the sale affected by\r\ntheir predecessor in an interest way back in the year 1996 by way\r\nof application filed in the year 2008.\r\nThe present Special Leave Petition is, accordingly,\r\ndismissed.\r\n Pending application(s), if any, also stand disposed of. </b><br></p>', 'e16c5f8b13e16e331c39cb310561540f.JPG', 'bca599e1995b239d0f18e9b2e7690ea1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-29', 1, '', '', '2022-01-30 03:25:58', '2022-01-30 17:49:46'),
(1300, 'oaJZGFIWrAFKETVRbCLnWlOUR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Registration of deed through power of attorney holder. It is NOT compulsory to produce original power of attorney before the Sub-Registrar at the time of registration of the deed. Supreme Court.  ', '<p><b>Amar Nath vs Gian Chand and another <br>Civil Appeal No. 5797 of 2009 decided on 28 January 2022<br>Justice K.M. Joseph and Justice PAMIDIGHANTAM Sri. Narasimha </b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2008/35811/35811_2008_40_1501_32945_Judgement_28-Jan-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2008/35811/35811_2008_40_1501_32945_Judgement_28-Jan-2022.pdf</a></span><br></b></p><p><b>2. The plaint schedule property hereinafter referred\r\nto as the ‘property’ consists of 2 Kanals, 10 Marlas\r\nand odd land belonged to the plaintiff and was in his\r\npossession. He was serving as a junior engineer. He\r\nentered into an oral agreement for the sale of the\r\nproperty for a consideration of Rs. 55,000/-. It is the\r\nplaintiff’s case that when the plaintiff came on leave,\r\nthe first defendant could not arrange the money and\r\nasked for further time. The plaintiff bonafide executed\r\na special power of attorney in favour of the IInd\r\ndefendant for selling the property for the amount of\r\nRs. 55,000/-. As the negotiation fell through in view\r\nof the first defendant not being able to arrange the\r\nmoney, the second defendant to whom the power of\r\nattorney was executed, surrendered the original to the\r\nplaintiff, and the plaintiff told the first defendant\r\nthat the same stood cancelled. The second defendant is\r\nalleged to be a deed writer and a clever person. He\r\napplied for the copy of the power of attorney, and\r\nfraudulently in collusion with the first defendant, executed the sale deed on 28.04.1987 for Rs. 30,000/.\r\nThe second defendant, according to the plaintiff, could\r\nnot execute the sale deed in the absence of the original\r\npower of attorney, and the sub registrar was supposed\r\nto verify the aspect from the second defendant under\r\nSections 32, 33 and 34 of the Registration Act. The\r\nsale deed was without authority. The second defendant\r\n‘was not competent to transfer the possession’. The\r\nspecial power of attorney is deemed to have been\r\ncancelled in the eye of law since it was handed over\r\nto the plaintiff. When the plaintiff came from his\r\nservice and enquired with the officials of the revenue\r\nstaff or the consolidation authority, and got the\r\ncopies, then he came to know about the sale and that\r\nthe mutation has been sanctioned. It is on this case\r\nthat the plaintiff filed a suit for declaration by way\r\nof permanent injunction that he is the owner in\r\npossession of that property and the mutation showing\r\nthe sale in favour of the first defendant, by the second\r\ndefendant, was null and void, and that the second\r\ndefendant was not having any authority to sell the land\r\nowned by the plaintiff, and hence the defendant be restrained from interfering with the ownership and\r\npossession of the plaintiff.</b></p><p><b>Registration Act <i>\"18-A. Documents for registration to be\r\naccompanied by a true\r\ncopy.- Notwithstanding anything contained\r\nin this Act, the registering officer shall\r\nrefuse to register any document presented\r\nto him for registration unless such document\r\nis accompanied by a true copy thereof.\"\r\n</i><br></b></p><p><b>14. What Section 18A contemplates is the production of\r\na true copy of a document, which is sought to be got\r\nregistered. The document, which is sought to be\r\nregistered in this case was the sale deed executed by\r\nthe second defendant in favour of the first defendant.</b></p><p><b>17. The argument of the plaintiff would appear to be\r\nthat it is imperative, having regard to Sections 32 and 33 of the Act, that the original power of attorney\r\nshould be produced.  <br></b></p><p><b>19. The argument of the plaintiff that for a proper\r\nand legal presentation of a document, the first\r\ndefendant was obliged to produce the original power of\r\nattorney, does not appear to be sound. In fact, the\r\nmatter itself is not res integra. T<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20. In other words, when a person empowers another to\r\nexecute a document and the power of attorney, acting\r\non the power, executes the document, the power of\r\nattorney holder can present the document for\r\nregistration under Section 32(a). Section 32(a) of the\r\nRegistration Act deals with the person executing a\r\ndocument and also the person claiming under the same.\r\nIt also provides for persons claiming under a decree\r\nor an order being entitled to present a document.\r\nSection 32(b) speaks about the representative or\r\nassignee of ‘such a person’. The word such a person in\r\nSection 32(b) is intended to refer to the persons\r\ncovered by Section 32(a). Finally, Section 32(c)\r\nprovides for the agent of ‘such a person’ which\r\nnecessarily means the persons who are encompassed by\r\nSection 32(a). Besides agent of the person covered by </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 32(a), Section 32(c) also takes in the agent\r\nof the representative or assignee. Now the words\r\nrepresentative or assignee are to be found in Section\r\n32(b). Thus, Section 32(c) deals with agents of the\r\npersons covered by Section 32(a) and agents of the\r\nrepresentative or assignee falling under Section 32(b).\r\nIt is in respect of such an agent that there must be\r\ndue authorisation by a power of attorney, which in\r\nturn, is to be executed and authenticated in the manner\r\nprovided for in Section 33. However, the person, who\r\nhas actually signed the document or executed the\r\ndocument for the purpose of Section 32(a) does not\r\nrequire a power of attorney to present the document.\r\nIt may be open to the principal, who has entered\r\nobligations under the document, to present the\r\ndocument. Section 32(c) must alone be read with Section\r\n33 of the Act. Thus, when Section 32(c) of the\r\nRegistration Act declares that a document, whether it\r\nis compulsorily or optionally registrable, is to be\r\npresented, inter alia, by the agent of such a person,\r\nrepresentative or assignee, duly authorised by power\r\nof attorney, it must be executed and authenticated in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the manner and hereinafter mentioned immediately in the\r\nnext following section.</span></b></p><p><b>25. For reasons, which we have indicated, Section 32(c)\r\nread with Section 33 and Section 34(2)(c) are interrelated and they would have no application in regard\r\nto the document presented for registration by a power\r\nof attorney holder who is also the executant of the\r\ndocument. In other words, there is really no need for\r\nthe production of the original power of attorney, when\r\nthe document is presented for registration by the person standing in the shoes of the second defendant\r\nin this case as he would be covered by the provisions\r\nof Section 32(a) as he has executed the document though\r\non the strength of the power of attorney. To make it\r\neven further clear, the inquiry contemplated under the\r\nRegistration Act, cannot extend to question as to\r\nwhether the person who executed the document in his\r\ncapacity of the power of attorney holder of the\r\nprincipal, was indeed having a valid power of attorney\r\nor not to execute the document or not.</b></p><p><b> 63. The upshot of the above discussion is that the\r\nimpugned Judgment cannot be sustained. The appeal is therefore allowed and the impugned Judgment will stand set\r\naside. Parties to bear their respective costs. </b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></p>', '37a1cdfdcd4cf9fc98697470da4c4bf1.jpg', '7e008d2187341b6445e0959e51eea2fc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-30', 1, '', '', '2022-01-30 16:50:01', '2022-01-30 17:01:26'),
(1301, 'vrCEGIdejfechl6C6wEPVBXnJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'The case is an occasion to evolve good practices and to denounce and discourage proponents of undemocratic activities in the House by democratically elected representatives - Supreme Court in MLAs suspension case. ', '<p><b>Ashish Shelar and others vs The Maharashtra Legislative Assembly and another <br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Writ Petition 797 of 2021 decided on 28 January 2022<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice A.M. Khanwilkar, Justice Dinesh Maheshwari and Justice C.T. Ravikumar<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/16505/16505_2021_33_1501_33046_Judgement_28-Jan-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/16505/16505_2021_33_1501_33046_Judgement_28-Jan-2022.pdf</a></b></p><p><b>58. What emerges from the stated conclusion is that the Constitution Bench declared that the inherent power of the Legislature  is  not   absolute,  but  limited  remedial  power to punish   for   contempt   and   to   take   such   measures   as   are necessary for orderly functioning of the proceedings of the House.</b></p><p><b>60. It must follow that in absence of any express provision bestowing power in the Legislature to suspend its member(s) beyond the term of the ongoing Session, the inherent power of the Legislature can be invoked only to the extent necessary and for proper exercise of the functions of the House at the relevant point of time.  No more.  For that purpose, it could resort to protective and self­defensive powers alone and not punitive at all. </b></p><p><b>63. In light of this decision, it must follow that only a graded approach is the essence of a rational and logical approach; and only such action of the Legislature which is necessary for orderly   conduct   of   its   scheduled   business   of   the   ongoing Session can be regarded as rational approach.   Suspension beyond the Session would be bordering on punishing not only the   member   concerned,   but   also   inevitably   impact   the legitimate rights of the constituency from where the member had been elected.</b></p><p><b>69. A  priori,  if   the   Legislature   intended   to   depart   from mechanism predicated in Rule 53, it ought to have expressly provided for that dispensation.  If it had done that by a law or in   the   form   of   Rules   framed   under   Article   208   of   the Constitution, the legality and constitutionality thereof could have been tested.   Suffice it to note, in absence thereof, it would   inevitably   be   exercise   of   power   without   an   express grant in that regard.   In such a case, the exercise of power can only be implied or inherent and limited to the logic of general necessity by way of self­protective or self­defensive action   reasonably   necessary   for   proper   exercise   of   the functions of the House during the ongoing Session.  Anything in excess then for a day or the remainder of the ongoing Session, would not be necessary much less rational exercise of inherent power of the Assembly.   Even, Rule 53 bestows authority in the Speaker to take action against the member only for ensuring orderly functioning of the House.   Same logic must apply to the exercise of inherent limited power by the House, even if it may not be de facto under Rule 53.</b></p><p><b>72. Resultantly, we have no hesitation in concluding that the   impugned   resolution   suffers   from   the   vice   of   being unconstitutional, grossly illegal and irrational to the extent of period of suspension beyond the remainder of the concerned (ongoing) Session.  Further, it is not a case of mere procedural irregularity committed by the Legislature within the meaning of Article 212(1) of the Constitution.</b></p><p><b>74. It is unnecessary to underscore that Parliament as well as   the   State   Legislative   Assembly   are   regarded   as   sacred places, just as the Judicature as temple of justice.   As a matter of fact, the first place where justice is dispensed to the common man is Parliament/Legislative Assembly albeit  by a democratic process.  It is a place where policies and laws are propounded for governing the citizenry.   It is here that the entire range of activities concerning the masses until the last mile, are discussed and their destinies are shaped.  That, in itself, is the process of dispensing justice to the citizens of this   country.     These   are   places   where   robust   and dispassionate debates and discussion inspired by the highest traditions of truth and righteousness ought to take place for resolving the burning issues confronting the nation/State and for dispensing justice — political, social and economic.  The happenings in the House is reflection of the contemporary societal   fabric.     The   behavioural   pattern   of   the   society   is manifested or mirrored in the thought process and actions of the members of the House during the debates.  It is in public domain (through print, electronic and social media) that the members of the Parliament or Assembly/Council of the State, spend   much   of   the   time   in   a   hostile   atmosphere.     The Parliament/Legislative   Assembly   are   becoming   more   and more intransigent place.   The philosophical tenet, one must agree  to   disagree  is  becoming  a  seldom scene  or  a  rarity during the debates. It has become common to hear that the House could not complete its usual scheduled business and most of the  time had been spent  in jeering and  personal attacks against each other instead of erudite constructive and educative debates consistent with the highest tradition of the august body.  This is the popular sentiment gaining ground amongst   the   common   man.     It   is   disheartening   for   the observers.     They   earnestly   feel   that   it   is   high   time   that corrective steps are taken by all concerned and the elected representatives would do enough to restore the glory and the standard of intellectual debates of the highest order, as have been chronicled of their predecessors.   That legacy should become more prominent than the rumpus caused very often. Aggression during the debates has no place in the setting of country governed by the Rule of Law.  Even a complex issue needs to be resolved in a congenial atmosphere by observing collegiality and showing full respect and deference towards each other.   They ought to ensure optimum utilisation of quality time of the House, which is very precious, and is the need of the hour especially when we the people of India that is Bharat,   take   credit   of   being   the   oldest   civilisation   on   the planet   and   also   being   the   world’s   largest   democracy (demographically).     For   becoming   world   leaders   and   self dependant/reliant, quality of debates in the House ought to be   of   the   highest   order   and   directed   towards   intrinsic constitutional and native issues confronting the common man of   the   nation/States,   who   are   at   the   crossroad   of   semi­ sesquicentennial or may we say platinum or diamond jubilee year on completion of 75 years post­independence.   Being House   of   respected   and   honourable   members,   who   are emulated   by   their   ardent   followers   and   elected   from   their respective   constituency,   they   are   expected   to   show statesmanship and not brinkmanship.   In the House, their goal is and must be one — so as to ensure the welfare and happiness of we the people of this nation.  In any case, there can be no place for disorderly conduct in the House much less “grossly disorderly”.   Such conduct must be dealt with sternly for ensuring orderly functioning of the House.   But, that action must be constitutional, legal, rational and as per the procedure established by law.  This case has thrown up an occasion for all concerned to ponder over the need to evolve and adhere to good practices befitting the august body; and   appropriately  denounce  and  discourage   proponents   of undemocratic   activities   in   the   House,   by   democratically elected representatives.  We say no more. </b></p><p><b>75. In conclusion, we have no hesitation in allowing these writ petitions and to declare that the impugned resolution directing suspension of the petitioners beyond the period of the remainder of the concerned Monsoon Session held in July 2021 is non est in the eyes  of  law, nullity,  unconstitutional, substantively     illegal     and   irrational.        The       impugned resolution       is,   thus,       declared     to     be ineffective in law, insofar as the period beyond the remainder of  the  stated Session in which the resolution came to  be passed.</b></p><p><b>76. As a result of the stated declaration, the petitioners are entitled for all consequential benefits of being members of the Legislative Assembly, on and after the expiry of the period of the remainder of the concerned Session in July 2021.   The writ petitions are allowed in the above terms.  No order as to costs.</b></p>', 'ae3df4c3b4e91b362eca76977ac2bb00.JPG', '0111dcdf653d5371167ab2c7712bf867.JPG', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-31', 1, '', '', '2022-02-01 00:08:10', '2022-02-01 00:13:26'),
(1302, '0BedL5TnHUGCUd3ud6rHANMWB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. At the stage of considering discharge application, Court can not hold mini trial or go deep into probative value of material on record. Karnataka High Court. ', '<p><b>Suresh and others vs The State of Karnataka&nbsp;<br>Criminal Petition 100279 of 2019 decided on 18 January 2022<br></b></p><p><b><br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10.<span style=\"white-space:pre\">	</span>It is no doubt true that in the first information report the names of the petitioners are not forthcoming. The FIR is&nbsp; registered on&nbsp; the&nbsp; basis of a complaint lodged by the brother&nbsp; of&nbsp; the deceased, who is not an eye witness to the incident. According to the first information report,&nbsp; earlier there was an attempt to murder the deceased by the accused shown in the first information report,&nbsp; as&nbsp; such suspecting their involvement, they were named in the first information report. In the course of investigation the statements of eye&nbsp; witnesses&nbsp; namely CW.18 Tukkappa Nagappa Handigond and CW.19 Basavaraj Balkrishna Hollur were recorded on the very same day. Their statements&nbsp; reveal&nbsp; that&nbsp; they have seen the deceased being attacked with lethal weapons. After the arrest of accused persons, both CW.18 and 19 have identified them as the persons who attacked the deceased and committed&nbsp; his murder. The perusal of their statements go to&nbsp; show that they were not knowing the names of accused which they came to know later. In so far as identification of the accused, at this stage their statements cannot be doubted or simply brushed aside. Merely because there is no identification&nbsp; parade conducted, the statements of CW.18 and 19 cannot be ignored since, while considering an application seeking discharge, the Court has to find out whether there is a prima-facie case against the accused so as to proceed against them. If&nbsp; there is&nbsp; any contradictions or discrepancies in the statements of the witnesses recorded in the&nbsp; course&nbsp; of investigation, the same can be tested at the time&nbsp; &nbsp;of trial. It is well settled that at the stage of considering the discharge application, the Court is&nbsp; not expected to go deep into the probative value&nbsp; of the material on record. On the other hand the Court has to form a presumptive opinion as to existence of factual ingredients constituting the offence alleged and for that purpose the Court can not conduct a roving inquiry into the pros and cons of the matter and weigh the evidence as if it is contending a mini trial. Though there is undoubted power to sift and weigh the evidence, but only for the limited purpose of finding out whether or not a prima-facie case against the accused has been made out.</b></p><p><b>11.In the case on&nbsp; hand&nbsp; the&nbsp; prosecution has collected material showing a prima- facie case against&nbsp; the&nbsp; accused&nbsp; petitioners&nbsp; so&nbsp; &nbsp;as&nbsp; &nbsp;to&nbsp; proceed&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;against them. Hence, the Revision Petition fails and accordingly it is dismissed.</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'f4b12b2fb3529433d97893f55191ba0c.jpg', 'cefa13b899c52bee21d24f6e5965d73a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-31', 1, '', '', '2022-02-01 01:59:07', '2022-02-01 01:59:07');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1303, 'zL8SLNiFWa4oE78Qn3wr4HIQP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Judicial review of foreign funded contracts is restricted only to examine  favouritism, nepotism and concealment from the foreign financing authority. Supreme Court. ', '<p><b>National High Speed Rail Corporation Limited vs Montecarlo Limited & Anr. <br>Civil Appeal 6466 of 2021 decided on 31 January 2022.<br>Justice M.R. Shah and Justice A.S. Bopanna</b></p><p><b>Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/21385/21385_2021_42_1502_32982_Judgement_31-Jan-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/21385/21385_2021_42_1502_32982_Judgement_31-Jan-2022.pdf</a></b></p><p><b>1. Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order dated 23.08.2021 passed by the High Court of Delhi in Writ\r\nPetition (C) No. 5127 of 2021 by which the High Court has allowed the\r\nsaid writ petition preferred by the respondent herein – original writ\r\npetitioner (hereinafter referred to as the “original writ petitioner”) and has\r\nquashed the communications dated 27.04.2021 and 28.04.2021 and the\r\nnotification dated 28.04.2021 by which the original writ petitioner was\r\ninformed that its technical Bid has been rejected on the ground that the\r\nsame is non-responsive and consequently has directed the appellant\r\nherein to proceed in accordance with law qua the tender process by\r\nfurther examining the Bid of the original writ petitioner, the original  respondent – National High Speed Rail Corporation Limited (hereinafter\r\nreferred to as “NHSRCL”) has preferred the present appeal<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. As observed hereinabove, there are as such no allegations of mala\r\nfides and/or favouritism at all. Therefore, the High Court has erred in\r\nholding that the Bid submitted by the original writ petitioner was in\r\nsubstantial compliance. Whether the Bid submitted by a Bidder suffers\r\nfrom any material deviation and/or any substantial deviation should be\r\nleft to the author of the Bid document and normally, the High Courts, in\r\nexercise of the powers under Article 226 of the Constitution of India,\r\nshould not interfere with the same unless such a decision is found to be\r\nmala fide and/or there are allegations of favouritism and/or such a\r\ndecision is arbitrary.  </span><br></b></p><p><b>11. In the present case, as observed hereinabove, the decision to\r\nreject the Bid of the original writ petitioner at the first stage on the ground\r\nthat the Bid submitted by the original writ petitioner suffers from material\r\ndeviation and the same cannot be said to be in substantial compliance\r\nhas been taken by the tender committee in concurrence with JICC and\r\nJICA. The role of the JICA has been extensively dealt with by the\r\nGujarat High Court in the decision referred to hereinabove. Therefore,\r\nwhen the JICA has agreed to fund such a huge amount and the terms\r\nand conditions of the tender document are finalized by the JICC/JICA,\r\nand, therefore, when conscious decision has been taken by the\r\nJICC/JICA, the same was not required to be interfered with by the High\r\nCourt lightly and when such a decision of the High Court would have a\r\ncascading effect on such a foreign funded Mega project. The scope of\r\njudicial review in such foreign funded contract should be far much less\r\nthan the ordinary Government funded contracts funded from\r\nConsolidated Fund of India. The scope of judicial review in such foreign\r\nfunded contracts/projects would be restricted and minimal. In such\r\nforeign funded contracts, the only ground for judicial review ought to be\r\non a limited aspect, i.e., the action of the executing authority does not\r\nsuffer from favouritism or nepotism and based on the grounds which\r\nhave been concealed from the foreign financing authority, if disclosed,\r\nwould have persuaded the financing authority to cancel the contract. </b></p><p><b>13. Under the circumstances, the High Court has erred in interfering\r\nwith the conscious decision of the JICC / JICA / appellant / tender\r\ncommittee to reject the Bid submitted by the original writ petitioner at\r\nStage I on the ground that the Bid submitted by the original writ\r\npetitioner was suffering from material deviation.</b></p><p><b>15. Before we part, we deem it proper to express few words of caution\r\nto the High Courts while entertaining the writ petitions challenging the\r\ntender process midway and/or while interfering with the tender process\r\nin the contracts, more particularly, with respect to the contracts/projects\r\nfunded by the foreign countries and with respect to the Mega project like\r\nthe present one. Before entertaining the writ petition with respect to\r\nsuch Mega projects funded by the foreign countries, one has to\r\nappreciate that funds of such Mega projects by the foreign country is\r\nfollowed by a detailed discussion between the Prime Ministers of both\r\nthe countries and to strengthen bilateral cooperation in the rail sector.\r\nThe foreign country is ready to invest/fund such a huge amount on nonnegotiated terms and the Bid Documents are prepared by the foreign\r\nfinancial agency/country in accordance with the latest version of the\r\nStandard Bidding Documents. These investments from developed\r\nnations are made on the basis of non-negotiated terms and conditions,\r\nwhere the sole discretion as to what would be the conditions of the\r\ninvestments and on what terms the contractors would be chosen to\r\nimplement the project, vests with the investor foreign developed nation.\r\nConsidering the special peculiarities of such foreign sovereign funded\r\n78\r\ndevelopment contracts, which can be envisaged and exist only due to\r\nthe availability of the investment and willingness of the foreign sovereign\r\ncountry to finance such infrastructure project, the said contracts assume\r\nthe different characteristics. Therefore, there shall be different\r\nconsiderations so far as the judicial interference is concerned between\r\nthe foreign funded contracts and the ordinary public works contracts\r\nfunded from public exchequer. It is always to be borne in mind and as\r\nobserved by this Court in the case of Asia Foundation and Construction\r\nLtd. (supra), it is difficult for a developing country to go ahead with such\r\na high cost project unless the developed country grant loan/subsidy\r\nand/or ready to fund such high cost projects, which are very important\r\nprojects for developing country, more particularly, when the developed\r\ncountry is ready to fund a huge amount at a minimal concessional rate of\r\ninterest and on suitable terms and conditions of repayment. It is also to\r\nbe noted that any delay in execution of such a Mega project, which is\r\nvery important project for the developing country like India may not be in\r\nthe larger public interest and in the nation’s interest. Such an\r\ninterference by the Courts midway and delay in the projects like these\r\nwhich is funded by the foreign countries on bilateral mutual\r\nunderstanding/agreement by the developed country to a developing\r\ncountry may affect the future investments/funding. Many a times, such a\r\ndelay in the execution of the project due to the intervention by the Courts\r\nmay have cascading effect on the project cost and ultimately may\r\n79\r\nincrease the project cost and may impose heavy financial burden and\r\nlead to increased and unbudgeted expenditure. Therefore, while\r\nexercising the writ jurisdiction challenging the tender process midway\r\nand/or while entertaining the writ petition challenging the award of\r\ncontract with respect to such Mega projects, more particularly, when\r\nsuch Mega projects are funded by the foreign countries, the Courts have\r\nto bear in mind the following principles laid down by this Court in the\r\ncase of Tata Cellular Vs. Union of India, 1994 6 SCC 651</b></p><p><b>Even while entertaining the writ petition and/or granting the stay\r\nwhich ultimately may delay the execution of the Mega projects, it must\r\nbe remembered that it may seriously impede the execution of the\r\nprojects of public importance and disables the State and/or its\r\nagencies/instrumentalities from discharging the constitutional and legal\r\nobligation towards the citizens. Therefore, the High Courts should be\r\nextremely careful and circumspect in exercise of its discretion while\r\nentertaining such petitions and/or while granting stay in such matters.\r\nEven in a case where the High Court is of the prima facie opinion that\r\nthe decision is as such perverse and/or arbitrary and/or suffers from\r\nmala fides and/or favouritism, while entertaining such writ petition and/or\r\npass any appropriate interim order, High Court may put to the writ\r\n81\r\npetitioner’s notice that in case the petitioner loses and there is a delay in\r\nexecution of the project due to such proceedings initiated by him/it,\r\nhe/they may be saddled with the damages caused for delay in execution\r\nof such projects, which may be due to such frivolous litigations initiated\r\nby him/it. With these words of caution and advise, we rest the matter\r\nthere and leave it to the wisdom of the concerned Court(s), which\r\nultimately may look to the larger public interest and the national interest\r\ninvolved.</b></p><p><b>16. In view of the above and for the reasons stated above, the\r\nimpugned judgment and order passed by the High Court is clearly\r\nunsustainable and the same deserves to be quashed and set aside and\r\nis accordingly quashed and set aside. Present appeal is allowed\r\naccordingly. The original writ petition before the High Court filed by the\r\noriginal writ petitioner – respondent herein stands dismissed. No costs. <br></b></p><p><b><br></b></p><p><br></p>', '31ac1f3306a812ec3f71510c1e423cf6.jpeg', '78088c394d319344a58c45d334809044.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-01-31', 1, '', '', '2022-02-01 02:54:37', '2022-02-01 02:56:05'),
(1304, 'XX9pNgXOmcsb5aLYf8ThBk9Im', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prevention of Corruption Act, 1988.  No previous sanction necessary for prosecutions pending as on 26 July 2018 since amended Section 19 is prospective in operation. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">C.S.Puttaraju vs State of Karnataka and others&nbsp;<br></span><b>Criminal Petition 5305 of 2021 decided on 31 January 2022</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The petitioner has been arrayed as Accused No.5 pursuant to the complaint filed by respondent No.3 registered in Crime No.370/2013 by Mandya West Police Station on 01.11.2013 and as per the first F.I.R. No.RC.21(A)/2014 registered on 23.12.2014 by C.B.I., ACB, Bengaluru. The charge sheet dated 31.12.2015&nbsp; having been filed before the Special Judge for CBI Cases, the trial Court has taken cognizance of the offences punishable under Sections 120-B, 409, 420 of IPC and Section 13(2) read with Section 13(1) (c) &amp; (d) of the Prevention of Corruption Act, 1988 (\'P.C. Act\' for short).&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">with respect to charge sheet filed on 03.02.2016:-</b><b><br></b></p><p><b>42.<span style=\"white-space:pre\">	</span>It must be noted that the charge sheet dated 31.12.2015 admittedly came to be filed before the Spl. Judge on 03.02.2016. If orders were passed for taking cognizance at any time before 26.07.2018, which is the date from which Act 16 of 2018 was brought into effect, the question of applicability of amended provision would not&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">have been an issue at all. As cognizance came to be taken by order of the Special Judge only on 29.03.2021, taking note of the charge sheet dated 31.12.2015 filed on 03.02.2016, the question as regards to the applicability of amended provision of Section 19 of the P.C. Act has arisen.</b></p><p><b>43.<span style=\"white-space:pre\">	</span>It is to be noticed that, with the filing of charge sheet on 03.02.2016 before the Special Judge, the Investigating Agencies have completed their investigation and nothing more remained to be done from their end as regards investigation.</b></p><p><b>44.<span style=\"white-space:pre\">	</span>The intervening circumstances between 03.02.2016 and 29.03.2021 which may have constituted a legal impediment upon the Special Judge to pass an order taking cognizance are not within the control of the Investigation Agency.</b></p><p><b>45.<span style=\"white-space:pre\">	</span>In the facts of the present case, it cannot be stated that during the aforesaid period till the Amendment Act 16 of 2018 dated 26.07.2018 which provided for&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">obtaining sanction, there was no occasion for taking cognizance.</b></p><p><b>54.<span style=\"white-space:pre\">	</span>The amendment by Act 16 of 2018, published in the Gazette on 26.07.2018 brought about a change and sanction was required to be obtained before taking cognizance for the offences where the person \"is employed, or as the case may be, was at the time of&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">commission of the&nbsp; alleged&nbsp; offence&nbsp; employed.\" Accordingly, sanction was required to be taken not only where he is in employment but also when he was employed at the time of commission of the offence.&nbsp;</b></p><p><b>55.<span style=\"white-space:pre\">	</span>By virtue of the Amendment Act, the amended provision substituted the earlier provision. No doubt, the Amendment Act does not contain a saving clause and accordingly, recourse to Section 6 of the General Clauses&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Act, 1897 is to be made.&nbsp;</b></p><p><b>56.<span style=\"white-space:pre\">	</span>In the present case, by virtue of Amendment Act 2018, there has been a substitution. The principle laid&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">down in Section 6(b) and (e) of the General Clauses Act extracted hereinabove may be kept in mind as a guiding principle while construing the effect of substitution of a clause in an enactment wherein change is sought to be brought in by virtue of the substituted provision.</b></p><p><b>57.<span style=\"white-space:pre\">	</span>Merely use of the word, \'substitution\' to replace the old provision will not have the effect of making the amendment effective with retrospective effect, in the sense, that the substituted provision will have to be made applicable even as regards the acts already done as per the existing law and accordingly, such acts are required to be reworked in terms of the substituted provision.&nbsp;</b></p><p><b>61.<span style=\"white-space:pre\">	</span>Accordingly, taking note that the amendment by way of substitution would come into force as the Central Government would appoint, which is 26.07.2018, it would be appropriate to construe that the substitution would be effective prospectively.</b></p><p><b>63.<span style=\"white-space:pre\">	</span>Accordingly, even if it is considered that the provision regarding sanction while taking cognizance is a procedural aspect of law insofar as proposed amendment casts an obligation that sanction must be obtained even in the case of \"a person who at the time of commission of the alleged offence is employed\" and in terms of the explanation of \'Public Servant\' introduced by way of 2018 amendment which includes a person who has ceased to hold office or is holding an office other than an office during which an offence is alleged to have been committed; such requirement was absent when the final report came to be filed and is an additional obligation sought to be created, which interpretation cannot be accepted. This would be the conclusion if the principle laid in the case of Hitendra&nbsp; Vishnu Thakur (supra) is to be applied&nbsp;</b></p><p><b>64.<span style=\"white-space:pre\">	</span>Insofar as applicability of the amended provision under Section 19 to the pending proceedings, the High Court of Telangana in the case of Katti Nagaseshanna&nbsp; v. State of Andhra Pradesh, Represented by the Deputy Superintendent of Police and Another order dt. 16.11.2018 in Crl.P.No.9044/2018 has also&nbsp; concluded&nbsp; that the Amendment Act 16 of 2018 imposes a new obligation and duty on the prosecution to obtain sanction even after retirement of the petitioner from service and that, it is not the intention of the legislation to defeat all prosecutions pending against retired Government Servants.&nbsp;</b></p><p><b>66.<span style=\"white-space:pre\">	</span>The conclusion of the Kerala High Court is also required to be accepted by taking note of the principle that investigation which is completed ought to be saved if conducted under the law then prevailing, taking note of the principle under Section 6(e) of the General Clauses Act as also the principle laid down by the Apex Court in the case of Hitendra Vishnu Thakur (supra).</b></p>', '26e1078c592f36786060918caeb268d6.jpg', '11c7f7672cf336cdfc33e3f0acf901b2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-01', 1, '', '', '2022-02-01 23:15:57', '2022-02-01 23:15:57'),
(1305, 'XiKLu4NCHqC4zxe53wQ9Dv30o', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A Will giving limited estate as independent and new title in favour of females for the time time and not a recognition of pre-existing right does NOT create absolute right under Section 14 of Hindu Succession Act. Supreme Court. ', '<p><b>Jogi Ram vs Suresh Kumar and others&nbsp;<br>Civil Appeal 1543-1544 of 2019 decided on 1 February 2022<br>Justice&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Sanjay Kishan Kaul and Justice M.M. Sundresh .&nbsp;</span></b></p><p><b>Judgement Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2018/18331/18331_2018_36_1501_33032_Judgement_01-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/18331/18331_2018_36_1501_33032_Judgement_01-Feb-2022.pdf</a></b></p><p><b>28. We would first like to turn to the seminal judgment in Tulasamma &amp; Ors. v. Sesha Reddy (Dead) by LRs.&nbsp;(1977)&nbsp;3&nbsp;SCC&nbsp;99 . In para 20 the propositions emerging in&nbsp;respect of incidents and characteristics of a Hindu woman’s right to\r\nmaintenance have been crystallised.&nbsp;</b></p><p><b>29. In the light of the aforesaid passage, Sections 14(1) &amp; 14(2) of the\r\nsaid Act were entered by the Court. The word “possessed” was held to\r\nbe used in a wide sense not requiring a Hindu woman to be an actual or\r\nphysical possession of the property and it would suffice if she has a right\r\nin the property. The discussion in para 33 thereafter opines that the\r\nintention of the Parliament was to confine sub-section (2) of Section 14\r\nof the said Act only to two transactions, viz., a gift and a will, which\r\nclearly would not include property received by a Hindu female in lieu of\r\nmaintenance or at a partition. The intention of the Parliament in adding\r\nthe other categories to sub-section (2) was merely to ensure that any\r\ntransaction under which a Hindu female gets a new or independent title\r\nunder any of the modes mentioned in Section 14(2) of the said Act.&nbsp;<br></b></p><p><b>30. In our view the relevant aspect of the aforesaid conclusion is para\r\n4 which opines where sub-section (2) of Section 14 of the said Act would\r\napply and this does inter alia applies to a Will which may create\r\nindependent and new title in favour of females for the first time and is\r\nnot a recognition of a pre-existing right. In such cases of a restricted\r\nestate in favour of a female is legally permissible and Section 14(1) of\r\nthe said Act will not operate in that sphere.<br></b></p><p><b>31. We may add here that the objective of Section 14(1) is to create an\r\nabsolute interest in case of a limited interest of the wife where such\r\nlimited estate owes its origin to law as it stood then. The objective\r\ncannot be that a Hindu male who owned self-acquired property is unable\r\nto execute a Will giving a limited estate to a wife if all other aspects\r\nincluding maintenance are taken care of. If we were to hold so it would\r\nimply that if the wife is disinherited under the Will it would be&nbsp;sustainable but if a limited estate is given it would mature into an\r\nabsolute interest irrespective of the intent of the testator. That cannot be\r\nthe objective, in our view.<br></b></p><p><br></p>', '0c85db3b21d3a21310c39502c35f7a8f.JPG', '70950a46cdb0c7caa25b23a68e7e5e7d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-01', 1, '', '', '2022-02-02 02:32:20', '2022-02-02 02:32:20'),
(1306, '4t7LXpVgdzEN6Bta7cgfqJFub', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Unregistered partnership firm can maintain a suit pertaining to a contract which is not entered in the course of its business and to enforce common law/statutory right of injunction and declaration. Supreme Court. ', '<p><b>Shiv Developes vs Aksharay Developers&nbsp;<br>Civil Appeal 785 of 2022 decided on 31 January 2022<br>Justice Dinesh Maheshwari and Justice Vikram Nath&nbsp;</b></p><p><b>Judgement Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2018/19487/19487_2018_44_1501_32984_Judgement_31-Jan-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/19487/19487_2018_44_1501_32984_Judgement_31-Jan-2022.pdf</a></b></p><p><b>2. This appeal, by the plaintiff of a suit for declaration and injunction,\r\nis directed against the judgment and order dated 15.02.2018, as passed\r\nby the High Court of Gujarat, in Civil Revision Application No. 241 of\r\n2017, whereby the High Court has allowed the revision application filed\r\nby the contesting defendants and has&nbsp;reversed the order dated 07.04.2017, as passed by the Court of 9th\r\nAdditional Senior Civil Judge, Vadodara2\r\n in Special Civil Suit No. 333 of\r\n2015. </b></p><p><b>2.1. By the said order dated 07.04.2017, the Trial Court had rejected\r\nthe application moved by the contesting defendants under Order VII Rule\r\n11(d), Order XXX Rules 1 and 2 and Section 151 of the Code of Civil\r\nProcedure, 19083\r\n read with Section 69 of the Indian Partnership Act,\r\n19324\r\n for rejection of plaint on the ground that the suit filed by and on\r\nbehalf of an unregistered partnership firm was barred by law. The Trial\r\nCourt essentially held that, on its subject-matter relating to the validity of\r\nthe sale deed in question, the bar of Section 69(2) was not operating\r\nagainst this suit. However, the High Court has taken a contrary view of\r\nthe matter and has held that the plaintiff, being an unregistered firm,\r\nwould be barred to enforce a right arising out of the contract in terms of\r\nSection 69(2) of the Act of 1932.<br></b></p><p><b>15. In our view, the questions arising in this matter could be directly\r\nanswered with reference to the principles enunciated by this Court in the\r\ncase of Raptakos Brett &amp; Co. Ltd. v. Ganesh Property: (1998) 7 SCC&nbsp;184.....to attract the bar of Section 69(2) of the Act of\r\n1932, the contract in question must be the one entered into by firm with\r\nthe third-party defendant and must also be the one entered into by the\r\nplaintiff firm in the course of its business dealings; and that Section 69(2)\r\nof the Act of 1932 is not a bar to a suit filed by an unregistered firm, if the\r\nsame is for enforcement of a statutory right or a common law right.\r\n&nbsp;<br></b></p><p><b>16.2. This Court further exposited on the scope of the words “enforcing\r\na right arising under the contract”, as used in Section 69(2) of the Act of\r\n1932; and after a detailed survey of the reports and precedents which led\r\nto the frame of the said provision as also after reference to various\r\nauthorities on the point, this Court explained the rationale and object of\r\nthe provision that the same was intended to protect those in commerce\r\nwho deal with a partnership firm in business, inasmuch as they ought to\r\nbe enabled to know the names of the partners of the firm before they deal\r\nwith them in business; and the bar of Section 69(2) is not attracted to any\r\nand every contract referred to in the plaint as a source of title to an asset\r\nowned by the firm.</b></p><p><b>20. To put it differently, the relevant principles, when applied to the\r\nfacts of the present case, leave nothing to doubt that the transaction in\r\nquestion was not the one entered into by the plaintiff firm during the\r\ncourse of its business (i.e., of building construction); and it had been an\r\nindependent transaction of sale, of the firm’s share in the suit property, to\r\nthe contesting defendants. The bar of Section 69(2) is not attracted in\r\nrelation to the said sale transaction. Moreover, the subject suit cannot be\r\nsaid to be the one for enforcement of right arising from a contract; rather\r\nthe subject suit is clearly the one where the plaintiff seeks common law\r\nremedies with the allegations of fraud and misrepresentation as also of\r\nthe statutory rights of injunction and declaration in terms of the provisions\r\nof the Specific Relief Act, 1963 as also the Transfer of Property Act, 1882\r\n(while alleging want of the sale consideration). Therefore, the bar of\r\nSection 69(2) of the Act of 1932 does not apply to the present case.&nbsp;<br></b></p><p><b>21. The upshot of the foregoing discussion is that, for the purpose of\r\nSection 69 of the Act of 1932, the present case is governed by the\r\nprinciples laid down in Raptakos Brett &amp; Co. Ltd. (supra), as further\r\nexposited in Haldiram Bhujiawala (supra). Hence, the bar of Section\r\n69(2) is not attracted to the suit filed by the appellant.</b></p><p><b>22. Accordingly, this appeal is allowed; the impugned judgment and\r\norder dated 15.02.2018, as passed by the High Court of Gujarat in Civil\r\nRevision Application No. 241 of 2017 is set aside; and the order dated\r\n07.04.2017 as passed by the 9th Additional Senior Civil Judge, Vadodara in\r\nSpecial Civil Suit No. 333 of 2015 is restored. The Trial Court shall now be\r\nexpected to proceed with trial of the suit in accordance with law. &nbsp;</b><br></p>', '27eeda21189c9339aa96ec2908aab5a0.jpg', '9f6d7150a8d33f49b3b3b52e81c633fd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-01', 1, '', '', '2022-02-02 02:56:47', '2022-02-02 02:56:47'),
(1307, 'lemwCIX4MzTQrQnyCdNXaYhui', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act, 1996. When contentions relating to non­arbitrability are plainly arguable, the Court must refer the matter for arbitration by default. Supreme Court. ', '<p><b>Mohammed Masroor Shaikh vs Bharat Bhushan Gupta and others.</b></p><p><b>Civil Appeal 874 of 2022 decided on 2 February 2022.</b></p><p><b>Justice Indira Banerjee and Justice Abhay S Oka.</b></p><p><b>Judgment: <a href=\"https://main.sci.gov.in/supremecourt/2021/13244/13244_2021_43_1501_33037_Judgement_02-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/13244/13244_2021_43_1501_33037_Judgement_02-Feb-2022.pdf</a></b></p><p><b>10. The learned counsel appearing for the respondent no.1 has relied upon what has been held in paragraphs 95 and 98 of the decision of this Court in the case of Vidya Drolia &amp; Others v. Durga Trading Corporation . The conclusions of this Court have been summarised in paragraph 154 of the said decision, which reads thus:&nbsp;</b></p><p><b><i>“154. Discussion&nbsp; &nbsp;under&nbsp; &nbsp;the&nbsp; &nbsp;heading “Who&nbsp; &nbsp; &nbsp;Decides&nbsp; &nbsp; &nbsp;arbitrability?” can&nbsp; &nbsp;be crystallised as under:</i></b></p><p><b><i>154.1. Ratio of the decision in Patel Engg. Ltd. [SBP &amp; Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] on the scope of judicial review by the&nbsp; &nbsp;court&nbsp; &nbsp;while&nbsp; &nbsp;deciding&nbsp; &nbsp;an&nbsp; &nbsp;application under Sections 8 or 11 of the Arbitration Act, post the amendments by Act 3 of 2016 (with retrospective effect from 23­10­2015) and even post the amendments vide Act 33 of 2019 (with effect from 9­8­2019), is no longer applicable.</i></b></p><p><b><i>154.2. Scope&nbsp; &nbsp;of&nbsp; &nbsp;judicial&nbsp; &nbsp;review&nbsp; &nbsp;and jurisdiction of the court under Sections 8 and 11 of the Arbitration Act is identical but extremely limited and restricted.</i></b></p><p><b><i>154.3. The general rule and principle, in view of the legislative mandate clear from Act 3 of 2016 and Act 33 of 2019, and the principle of severability and competencecompetence, is that the Arbitral Tribunal is the preferred first authority to determine and&nbsp; &nbsp;decide&nbsp; &nbsp;all&nbsp; &nbsp;questions&nbsp; &nbsp;of&nbsp; &nbsp;nonarbitrability. The court has been conferred power of “second look” on aspects of nonarbitrability&nbsp; &nbsp;post&nbsp; &nbsp;the&nbsp; &nbsp;award&nbsp; &nbsp;in&nbsp; &nbsp;terms&nbsp; &nbsp;of sub­clauses (i), (ii) or (iv) of Section 34(2)(a) or sub­clause (i) of Section 34(2)(b) of the Arbitration Act.</i></b></p><p><b><i>154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly&nbsp; &nbsp;and&nbsp; &nbsp;ex&nbsp; &nbsp;facie&nbsp; &nbsp;certain&nbsp; &nbsp;that&nbsp; &nbsp;the arbitration&nbsp; &nbsp;agreement&nbsp; &nbsp;is&nbsp; &nbsp;non­existent, invalid or the disputes are non­arbitrable, though&nbsp; &nbsp;the&nbsp; &nbsp;nature&nbsp; &nbsp;and&nbsp; &nbsp;facet&nbsp; &nbsp;of&nbsp; &nbsp;nonarbitrability&nbsp; &nbsp;would,&nbsp; &nbsp;to&nbsp; &nbsp;some&nbsp; &nbsp;extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced&nbsp; &nbsp;to&nbsp; &nbsp;arbitrate&nbsp; &nbsp;when&nbsp; &nbsp;the&nbsp; &nbsp;matter&nbsp; &nbsp;is demonstrably “non­arbitrable” and to cut off&nbsp; &nbsp;the&nbsp; &nbsp;deadwood.&nbsp; The&nbsp; &nbsp;court&nbsp; &nbsp;by&nbsp; &nbsp;default would refer the matter when contentions relating&nbsp; &nbsp;to&nbsp; &nbsp;non­arbitrability&nbsp; &nbsp;are&nbsp; &nbsp;plainly arguable; when consideration in summary proceedings&nbsp; &nbsp;would&nbsp; &nbsp;be&nbsp; &nbsp;insufficient&nbsp; &nbsp;and inconclusive;&nbsp; &nbsp;when&nbsp; &nbsp;facts&nbsp; &nbsp;are&nbsp; &nbsp;contested; when the party opposing arbitration adopts delaying&nbsp; &nbsp;tactics&nbsp; &nbsp;or&nbsp; &nbsp;impairs&nbsp; &nbsp;conduct&nbsp; &nbsp;of arbitration&nbsp; &nbsp;proceedings.&nbsp; &nbsp;This&nbsp; &nbsp;is&nbsp; &nbsp;not&nbsp; &nbsp;the stage for the court to enter into a mini trial or&nbsp; &nbsp;elaborate&nbsp; &nbsp;review&nbsp; &nbsp;so&nbsp; &nbsp;as&nbsp; &nbsp;to&nbsp; &nbsp;usurp&nbsp; &nbsp;the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration&nbsp; &nbsp;as&nbsp; &nbsp;an&nbsp; &nbsp;alternative&nbsp; &nbsp;dispute resolution mechanism.”</i></b></p><p><b>11. Thus, this Court held that while dealing with petition under Section 11, the Court by default would refer the matter when&nbsp; &nbsp;contentions&nbsp; &nbsp;relating&nbsp; &nbsp;to&nbsp; &nbsp;non­arbitrability&nbsp; &nbsp;are&nbsp; &nbsp;plainly arguable.&nbsp; &nbsp;In such case, the issue of non­arbitrability is left open to be decided by the Arbitral Tribunal.&nbsp; &nbsp;On perusal of the&nbsp; &nbsp;impugned&nbsp; &nbsp;order,&nbsp; &nbsp;we&nbsp; &nbsp;find&nbsp; &nbsp;that&nbsp; &nbsp;the&nbsp; &nbsp;issues&nbsp; &nbsp;of&nbsp; &nbsp;nonarbitrability and the claim being time barred have not been concluded by the learned Single Judge of the Bombay High Court.&nbsp; In fact, in clause (vii) of the operative part of the impugned Order, the learned Single Judge has observed that the&nbsp; contentions&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;parties&nbsp; &nbsp;have&nbsp; &nbsp;been&nbsp; &nbsp;kept&nbsp; &nbsp;open.&nbsp; &nbsp;The petitions&nbsp; &nbsp;filed&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;appellant&nbsp; &nbsp;under&nbsp; &nbsp;Section&nbsp; 34&nbsp; of the Arbitration Act, challenging the Order dated 25th May 2021 are pending before the High Court in which the appellant can raise all permissible contentions.&nbsp;</b></p><p><b>12. Therefore,&nbsp; &nbsp;in&nbsp; &nbsp;our&nbsp; &nbsp;considered&nbsp; &nbsp;view,&nbsp; &nbsp;no&nbsp; &nbsp;case&nbsp; &nbsp;for interference is made out.&nbsp; We, therefore, dismiss the appeals, while leaving open the contentions raised by the appellant in pending&nbsp; &nbsp;petitions&nbsp; &nbsp;under&nbsp; &nbsp;Section&nbsp; &nbsp;34&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Arbitration&nbsp; &nbsp;Act before the High Court of Bombay.&nbsp;</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b>&nbsp;</b></p>', 'df975b3b6bddc4c82596ead6f26221f9.jpg', '49dfd1669ea0a7c589a10a72fc526308.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-02', 1, '', '', '2022-02-03 02:08:25', '2022-02-03 02:08:25'),
(1308, 'UgWGx2umcd2n9roae6cMQeGE3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Punishment extending to three years makes the offence cognizable and hence offence under Section 63 of the Copyright Act is cognizable. Police can register FIR based on complaint. Karnataka High Court.  ', '<p><span style=\"font-weight: bolder;\">ANI Technologies Private Limited and others vs State of Karnataka and another<br>Writ Petition 32942 of 2017 decided on 20 December 2021<br></span></p><p><b>The petitioners are also known as Ola or Ola Cabs. The 2nd respondent is Lahari Recording Company, one of the music companies in India. The petitioners who run Ola cabs launched a feature in their cabs/taxis where television/display sets are fixed to the headrest of the front seat where popular songs are played. This feature is known in the cabs circle as Ola play and such cabs are known as Ola Prime. Noticing that several of&nbsp; the contents of music videos and songs belonging to several of the films whose music copyrights the 2nd respondent owns were being displayed in Ola Prime cabs under the feature Ola play and on the ground that Ola cabs are indulging in commercial exploitation of copyright of the music whose copyright is owned by the 2nd respondent without purchasing such copyright registered a complaint on 13-05-2017 alleging infringement of Copyright Act, 1957 (‘the Act’ for short). On registration of the said complaint before the Additional Commissioner of Police, investigation is directed to be conducted and an FIR came to be registered in Crime No.191 of 2017 alleging offences punishable under Sections 63 and 64 of the Act. At that juncture, the petitioners, the Company and the Directors of Ola Cabs have knocked the doors of this Court in the subject writ petition.</b></p><p><b>7.<span style=\"white-space:pre\">	</span>Section 63 of the Act, when it was initially promulgated prescribed punishment for the offence of infringement of the copyright to be punishable with imprisonment, which extended to one year or fine or both. Therefore, the maximum punishment prescribed then was one year. The said provision of law underwent an amendment by the Amending Act 65 of 1984, the maximum offence punishable was changed from one year to three years</b></p><p><b>8.<span style=\"white-space:pre\">	</span>The offences narrated in penal provisions either under the Copyright Act or under any enactment, if read to be cognizable, there should be no ambiguity with regard to the jurisdiction of the Police to entertain the complaint and register a FIR or investigate into the matter.&nbsp;</b></p><p><b>The issue now would be if it is three years and upwards there can be no doubt that it is cognizable offence. When the offence is punishable with imprisonment&nbsp; for 6 months to 3 years or with fine only, whether such an offence would become cognizable or non-cognizable, is the issue that requires consideration.</b></p><p><b>9.<span style=\"white-space:pre\">	</span>It is germane to notice the line of law laid down by various Constitutional Courts. The Bombay High Court in the case of PIYUSH SUBHASHBHAI RANIPA VS. STATE OF MAHARASHTRA1, while interpreting Section 63 of the Copyright Act and Section 103 of the Trade Marks Act, both of 2021 SCC Online Bom 350 which are identical, insofar as the maximum sentence that can be imposed is six months, which may extend upto three years.&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The High court of Bombay in the afore-extracted judgment was considering whether the offence under Section 63 of the Act is bailable or non-bailable. The question is answered that the offence under Section 63 of the Act is non-bailable. The reason rendered is that, whenever it is possible to impose the punishment extending to three years, the category that it is cognizable would apply as in such offences, as it is possible to impose a sentence of exact three years.</b></p><p><b>13.<span style=\"white-space:pre\">	</span>On a coalesce of all the aforesaid interpretation of law, what would unmistakably emerge is, if the imprisonment which is capable of being imposed for a maximum period of exact three years, would be cognizable and non-bailable.&nbsp;</b></p><p><b>15.....The High Court of Rajasthan holds that it is not the minimum sentence that would determine whether the offence is cognizable or non-cognizable, it is the maximum punishment that can be awarded is what determines whether cognizable or non-cognizable interpreting Section 91(6) of the Rajasthan Land Revenue Act.</b></p><p><b>16.<span style=\"white-space:pre\">	</span>On a cumulative analysis of the Act and the judgments rendered by various constitutional Courts what would unmistakably emerge is, Section 63 of the Act as it existed earlier, the maximum punishment that could be imposed was imprisonment for a period of one year. It is the amendment in the year 1984, that enhanced the period of imprisonment to three years. The objects and reasons are very clear as to why such an enhancement is done. Even otherwise in the light of afore-quoted judgments of the constitutional Courts it cannot but be held that the offences punishable under Section 63 of the Act are cognizable.</b></p><p><b>17.<span style=\"white-space:pre\">	</span>If the offences punishable under Section 63 of the Act are cognizable, the registration of FIR by the Police on the complaint cannot be found fault with. Merely because a separate provision under Section 64 of the Act which depicts power of search and seizure by the Police is also found in the statute, it does not take away cognizability of the offence punishable under Section 63 of the Act. As observed hereinabove, what is to be seen is the maximum punishment. In a given case, the competent criminal Court can sentence an offender under Section 63 of the Act to three years imprisonment. Exact three years is a possibility in a given circumstance. Therefore, it would fall under Item No.2 of Schedule II of the Cr.P.C. Therefore, the argument of the learned senior counsel that it is a non-cognizable offence and the procedure adopted by the Police in registering the FIR of a non-cognizable offence without approval of the Magistrate is unacceptable.</b></p><p><b>19.<span style=\"white-space:pre\">	</span>Therefore, finding no ground to interfere and reserving liberty to the petitioners to avail of such remedy as&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is available in law at an appropriate stage, this Writ Petition stands dismissed.</b></p>', 'd25ced3e3a486964c8622034ab94dca3.jpg', 'a71279e9eaa695e91120037d3a36499c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-02', 1, '', '', '2022-02-03 02:56:53', '2022-02-04 01:53:09'),
(1309, 'vJDFz53HRU4twaQUYtpLPJPqr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Principle that a suit cannot be withdrawn after it is closed for judgment applies to proceedings before Tribunals. Supreme Court.   ', '<p><b>Southern Power Distribution Power Company Limited of Andra Pradesh vs M/s Hinduja National Power Corporation Ltd and another.<br>Civil Appeal 1844 of 2020 decided on 2 February 2022<br>Justice L. Nageswara Rao and Justice B.R. Gavai. <br></b></p><p><b>Judgment Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/7428/7428_2020_35_1501_33040_Judgement_02-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/7428/7428_2020_35_1501_33040_Judgement_02-Feb-2022.pdf</a></b></p><p><b>80. Various authorities have been cited at the Bar in support of the proposition that withdrawal of an application could not be permissible when such a withdrawal amounts to frustration of a contract and thereby defeats the rights of the defendant and that the right of withdrawal is not absolute.  In this respect, we will refer to the observations made by this Court in the case of  Arjun  Singh   v.  Mohindra  Kumar  & Ors..  Though the issue involved in the said case is distinct than the issue involved in the present case, we find that it will be apposite to seek guidance from the observations made by this Court, while construing the provisions of Order IX and Order XX of the Code of Civil Procedure, 1908 (CPC).   The relevant extract reads thus: </b></p><p><i><b>“ ….In the present context when once the   hearing   starts,   the   Code   contemplates only two stages in the trial of the suit: (1) where the hearing is adjourned or (2) where the hearing is completed. Where,  the  hearing  is  completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that Or (1964) 5 SCR 946 53 der  XX.  Rule  1  permits   judgment   to be  delivered  after   interval  after   the hearing is completed. It would, therefore, follow that after the stage contemplated   by   Order   IX.   Rule   7   is passed   the   next   stage   is   only   the passing   of   a   decree   which   on   the terms of Order IX. Rule 6 the Court is competent   to   pass.  And   then   follows the remedy of the party to have that decree set aside by application under Order IX. Rule 13. There is thus no hiatus  between  the  two   stages  of   reservation  of   judgment  and  pronouncing the judgment so as to make it necessary   for   the   Court   to   afford   to   the party   the   remedy   of   getting   orders passed on the lines of Order IX. Rule 7.  We are, therefore, of the opinion that the Civil Judge was not competent to entertain   the   application   dated   May   31, 1958 purporting to be under Order IX. Rule 7 and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition undo Order IX. Rule 13 filed by the appellant.”</b></i></p><p><b> 81. It can be seen that this Court has held that CPC contemplates two stages of the trial in the suit: (1) where the hearing is adjourned; and (2) where the hearing is completed. It has been held that where the hearing is completed, the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that Order XX rule 1 permits judgment to be delivered after an interval after the hearing is completed. It has been held that there is no hiatus between   the   two   stages   of   reservation   of   judgment   and pronouncing the judgment so as to make it necessary for the Court to afford to the party the remedy of getting orders passed on the lines of Order IX rule 7. </b></p><p><b>85. It could thus be seen that the facts in the aforesaid case are totally different from the facts in the present case. This   Court   in   the   aforesaid   case   held   that   there   is   no provision in the  CPC, which  requires the Court to refuse permission to withdraw the suit and compel the plaintiff to proceed with it.  However, this Court itself has clarified that different considerations could arise where a set­off may have been claimed under order VIII of CPC, or a counter claim may have   been   filed,   if   permissible   by   the   procedural   law applicable to the proceedings governing the suit.     It was found that from the pleadings in the written statement, it could be clearly seen that there is no claim for set­off.  It was further found that there could be no counter­claim, since no provision was shown under which a counter­claim could have been filed in the trial court in such a suit. It was further found   that   the   right   claimed   by   the   appellant   was   a contingent one and did not exist at the time at which the written statement was filed.  </b></p><p><b>87. In any case, we are of the considered view that the conduct of the  appellants – DISCOMS, in the present case, would disentitle them to withdraw the application. </b></p>', '1f960fece6407a5450a1722e5aab2444.JPG', '2062b0442cbfc9008a80810378f6b136.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-02', 1, '', '', '2022-02-03 03:58:28', '2022-02-03 04:00:16');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1310, 'Ntt1vl0T7UYbASBuvGY4jR6zS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Award passed by the Lok Adalat under Section (20) of the 1987 Act cannot be the basis for re-determination of compensation under Section 28A of the Land Acquisition Act, 1894. Supreme Court. ', '<p><b>New Okhla Industrial Development Authority vs Yunus and others.&nbsp;<br>Civil Appeal 901 of 2022 decided on 3 February 2022<br>Justice K.M. Joseph and Justice P.S. Narasimha&nbsp;<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/16850/16850_2020_40_1501_33121_Judgement_03-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/16850/16850_2020_40_1501_33121_Judgement_03-Feb-2022.pdf</a></span></b></p><p><b>18. In Vasudave v. The Commissioner and Secretary\r\nGovernment, Revenue Department &amp; Ors.6, learned Single Judge\r\nof the Karnataka High Court took the view that was guided by\r\nSection 89 of the Code of Civil Procedure and the fact that\r\nthe award of the Lok Adalat is to be deemed to be a decree\r\nof the Civil Court. Learned Single Judge also considered the\r\nintention of introducing Section 28A and took the view that\r\nthe provision is in consonance with the equality clause.\r\nThe Court took the view that the Award passed by the Lok\r\nAdalat by consent fell under Section 28A.&nbsp;&nbsp;<br></b></p><p><b>19. However, another Learned Single Judge of the very same\r\nCourt in the decision reported in Chanabasappa &amp; Anr. v.\r\nSpecial Land Acquisition Officer7 took the view that to apply\r\nSection 28A(3) of the Act, there must be an Award under\r\nSection 28A(2). He further took the view that the existence\r\nof an Award passed by a Court under Part III of the Act was\r\na condition precedent to apply under Section 28A.&nbsp;<br></b></p><p><b>20. A learned Single Judge of the Kerala High Court in the\r\ndecision reported in Thankamma Mathew v. State of Kerala and\r\nAnr9. did consider the provisions of the 1987 Act in greater\r\ndetail. The learned Single Judge was guided by the scope and\r\neffect of the deeming provision under Section 21 of the 1987\r\nAct. He referred to the judgment of this Court reported in\r\nK.N. Govindan Kutty Menon v. C. D. Shaji10.&nbsp;<br></b></p><p><b>21. Primarily based on the award being a deemed decree of a\r\nCivil Court, he found that Section 28A applies in all cases\r\nwhere in an Award, the Court allows to the applicant any\r\ncompensation in excess of what is awarded by the collector\r\nand that there is no difference between a decree passed by\r\nthe Civil Court and the Award of the Lok Adalat in view of\r\nthe pronouncement of this Court. In a recent decision,\r\nhowever, in Umadevi Rajkumar Jeure and others v. District\r\nCollector and others11, a Division Bench of the Bombay High\r\nCourt has had an occasion to consider the matter in great\r\ndetail. In the said case there was an award made by a LokAdalat in a reference under Section 18 of the Act. Based on\r\nthe said award the application was filed under Section 28A.\r\nThe Division Bench referred to both the Acts in considerable\r\ndetail. <br></b></p><p><b>26. The object of the 1987 Act inter alia as can be noticed\r\nfrom the preamble to the Act, also is the organisation of\r\nLok Adalats. It is clear beyond the shadow of any doubt that\r\nthe jurisdiction of the Lok Adalat under Section 20 is to\r\nfacilitate a settlement of disputes between the parties in a\r\ncase. It has no adjudicatory role. It cannot decide a lis.\r\nAll that it can do is to bring about a genuine compromise or\r\nsettlement. Sub-Section (4) of Section 20 is important\r\ninsofar as the law giver has set out the guiding principles\r\nfor a Lok Adalat. The principles are justice, equality, fair\r\nplay and other legal principles. The significance of this\r\nprovision looms large when the Court bears in mind the\r\nscheme of Section 28A of the Act.</b></p><p><b>27. The scheme of Section 28A of the Act is unmistakably\r\nclear from its very opening words. What section 28A&nbsp;contemplates is a redetermination of compensation under an\r\naward passed under Part III. Part III takes in Section 23.\r\nSection 23 deals with the matters to be taken into\r\nconsideration. Various aspects including the market value on\r\nthe date of the notification under Section 4(1) are\r\nindicated. What we wish to emphasise is that elements of\r\nSection 23 are not in consonance as such with the guiding\r\nprinciples set out in Section 19(4) of the ‘1987 Act’ which\r\nare to guide a Lok Adalat. When the Court deals with the\r\nmatter under Section 18, in other words, it is bound to look\r\ninto the evidence and arrive at findings based on the\r\nevidence applying the legal principles which have been\r\nenunciated and arrive at the compensation. While it may be\r\ntrue that there is reference to ‘other legal principles’ in\r\nSection 19(4) of the 1987 Act, the Lok Adalat also can seek\r\nlight from the principles of justice, equity, and fair play.\r\nThe Lok Adalat by virtue of the express provisions is only a\r\nfacilitator of settlement and compromise in regard to\r\nmatters which are referred to it. <br></b></p><p><b>31. We would think that, therefore, a plea founded on&nbsp;estoppel arising out of a consent decree or from an Award\r\npassed by a Lok Adalat which can perhaps be even likened to\r\na consent decision cannot be the basis for redetermination\r\nof the compensation. What Section 28A indeed insists is on\r\ndecision by a Civil Court as defined in Section 2(l). In\r\nother words what is made the only basis for invoking Section\r\n28A of the Act is an adjudication by the Court as defined in\r\nthe Act. The plea of estoppel which, ordinarily, arises from\r\na consent decree or Award passed by the Lok Adalat which, as\r\nalready noticed, does not involve any adjudication by a\r\nCourt, would hardly suffice. The estoppel which is referred\r\nto by this Court applies as between the parties to the\r\nconsent decree.<br></b></p><p><b>32. This brings us to the next question, i.e., the\r\nimplication of Section 21 of the 1987 Act under which the\r\nAward of the Lok Adalat is to be treated as a decree. The\r\nHigh Court in the impugned judgment has drawn upon Section\r\n21 to uphold the contention of the respondents. The\r\nreasoning runs as follows:\r\nAn Award passed by the Lok Adalat is to be taken as a\r\ndecree of a Civil Court under Section 21 of the 1987 Act.\r\nWhat Section 28A requires is redetermination of compensation\r\nby the Civil Court. Therefore, the Award of the Lok Adalat,\r\nin this manner of reasoning, is to be conflated to the\r\nadjudication contemplated under Section 28A of the Act.&nbsp;<br></b></p><p><b>35. There can be no quarrel with principle that the purpose of the\r\nfiction being properly appreciated, even in a case under Section\r\n138 of the Negotiable Instruments Act, when following a Reference,\r\nan award is passed under the 1987 Act, it is in accord with the\r\npurpose to treat the award as a decree for the purpose of enforcing\r\nthe award as a decree.<br></b></p><p><b>36. When a legal fiction is employed by the legislature, it\r\nbecomes a duty of the Court to interpret it and to give it\r\nmeaning.&nbsp;<br></b></p><p><b>37. In the light of the principles which have been laid\r\ndown, we are inclined to take the following view.\r\nAn Award passed by the Lok Adalat under 1987 Act is the\r\nculmination of a non-adjudicatory process. The parties are\r\npersuaded even by members of the Lok Adalat to arrive at\r\nmutually agreeable compromise. The Award sets out the terms.&nbsp;The provisions contained in Section 21 by which the Award is\r\ntreated as if it were a decree is intended only to clothe\r\nthe Award with enforceability. In view of the provisions of\r\nSection 21 by which it is to be treated as a decree which\r\ncannot be challenged, undoubtedly, by way of an appeal in\r\nview of the express provisions forbidding it, unless it is\r\nset aside in other appropriate proceedings, it becomes\r\nenforceable. The purport of the law giver is only to confer\r\nit with enforceability in like manner as if it were a\r\ndecree. Thus, the legal fiction that the Award is to be\r\ntreated as a decree goes no further.</b></p><p><b>44. The award which is passed by the Lok Adalat cannot be\r\nsaid to be an award passed under Part III. It is the\r\ncompromise arrived at between the parties before the Lok\r\nAdalat which culminates in the award by the Lok Adalat. In\r\nfact, an award under Part III of the Act contemplates\r\ngrounds or reasons and therefore, adjudication is\r\ncontemplated and Section 26(2) of the Act is selfexplanatory.</b></p><p><b>49. We would, therefore, approve the view taken by the\r\nBombay High Court in Umadevi Rajkumar Jeure (supra) and the\r\nlearned single Judge of the Karnataka High Court in Vasudave\r\n(supra) and hold that an Award passed under Section (20) of\r\nthe 1987 Act by the Lok Adalat cannot be the basis for\r\ninvoking Section 28A.\r\n</b></p><p><b>52. Having regard to all circumstances and the facts of\r\nthis case we deem it appropriate to pass the following\r\norder:\r\n(1) The appeals are allowed. We declare that an\r\napplication under Section 28A of the Act cannot be\r\nmaintained on the basis of an award passed by the Lok Adalat\r\nunder Section 20 of 1987 Act. The impugned judgments stand\r\nset aside. Parties to bear the respective costs.&nbsp;</b><br></p>', '06cb287f4584862472ab9bfb3d3a367a.jpg', 'ffde22da2de528da786889cfe82e3e3d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-03', 1, '', '', '2022-02-03 23:17:55', '2023-08-14 14:35:35'),
(1311, 'wNfHKne1PpX5LXmduANf9dQWF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bonafide purchasers of attached property from an accused person involved in an offence cannot be charged with crime when no allegations of fraud or collusion are forthcoming. Supreme Court. ', '<p><b>Rekha Jain and another vs The State of Uttar Pradesh and others&nbsp;<br>Criminal Appeal 136 of 2022 decided on 3 February 2022<br>Justice M.R. Shah and Justice B.V. Nagarathna&nbsp;<br></b></p><p><b>Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/8781/8781_2020_42_1501_33063_Judgement_03-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/8781/8781_2020_42_1501_33063_Judgement_03-Feb-2022.pdf</a></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2.1 That it was stated in the F.I.R. that one Arun Kumar Maheshwari\r\n(co-accused) had earlier misappropriated complainant\'s and other\r\npersons’ monies ostensibly towards deposit in one Kuber Mutual\r\nBenefits Ltd. (in the year 1998-1999), and fled from Hapur without\r\nreturning the monies back due to which, the property in question was\r\nattached by and was given in custody to the complainant - Pradeep\r\nSinghal and one Bijendra Maheshwari, and now the accused have\r\nfraudulently sold the property in question to the co-accused Smt. Rekha\r\nJain and Smt. Minakshi Jain (appellants herein).</span><br></b></p><p><b>2.2 That the appellants herein and other co-accused approached the\r\nHigh Court by way of the present application to quash the criminal\r\nproceedings in exercise of powers under Section 482 Cr.P.C. By the\r\nimpugned judgment and order, the High Court has dismissed the said\r\napplication. Hence the accused, Smt. Rekha Jain and Smt. Minakshi\r\nJain have preferred the present appeal.&nbsp;<br></b></p><p><b>6. Having heard the learned counsel appearing on behalf of the\r\nrespective parties and having perused the allegations in the\r\ncomplaint/F.I.R., it can be seen that the main allegations are against the\r\nother co-accused – Arun Kumar Maheshwari and others. The only&nbsp;allegation against the appellants is that they have purchased the\r\nproperty in question, which was attached in the year 1998-1999 against\r\nthe amounts due and payable to the depositors, who had deposited in\r\nKuber Mutual Benefits Ltd. between 1998-1999. It is to be noted that the\r\nproperty has been purchased by the appellants in the year 2019.\r\nNothing is brought on record that at the time when the property was\r\npurchased by the appellants, the attachment was continued and/or any\r\nattachment was registered. There are no allegations that the appellants\r\nare related to the other co-accused Arun Kumar Maheshwari and others.\r\nEven from the averments and the allegations in the F.I.R., it cannot be\r\nsaid that there is any prima facie case made out against the appellants\r\nfor the offences under Sections 406, 420, 467, 468, 471 and 120-B IPC.\r\nThe main allegations are against other co-accused. Therefore, to\r\ncontinue the criminal proceedings against the appellants would be an\r\nabuse of process of law and the Court and unnecessary harassment to\r\nthe appellants, who seem to be the purchasers of the property on\r\npayment of sale consideration. In the above facts and circumstances of\r\nthe case, the High Court ought to have exercised its powers and\r\ndiscretion under Section 482 Cr.P.C. and ought to have quashed the\r\ncriminal proceedings against the appellants. &nbsp;</b></p><p><b>7. In view of the above and for the reasons stated above, the\r\npresent appeal succeeds. The impugned judgment and order passed by\r\n5\r\nthe High Court is hereby quashed and set aside. The criminal\r\nproceedings arising out of Case Crime No. 48 of 2019 for the offences\r\nunder Sections 406, 420, 467, 468, 471 and 120-B IPC, P.S. Hapur\r\nNagar, District Hapur including the charge sheet are hereby quashed\r\nand set aside in so far as the appellants herein – Smt. Rekha Jain and\r\nSmt. Minakshi Jain are concerned.\r\n</b></p><p><b>Present appeal is accordingly allowed</b><br></p>', '81b8f6992f5b845b0ba27e8b3ac70cab.jpg', '70d9042bc4b56193890ecc489d158908.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-03', 1, '', '', '2022-02-04 00:31:24', '2022-02-04 00:31:24'),
(1312, 'uqGhDf81w8PHHrvsMH6Gg0y49', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Planning authority cannot insist on surrendering property free of cost for road widening as a condition precedent for sanctioning building plans. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Dr. Arun Kumar B.C. vs State of Karnataka and others.<br></span><b>Writ Petition 9408 of 2020 decided 17 January 2022</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> </b><b><br></b></p><p><b>3.<span style=\"white-space:pre\">	</span>The petitioner who intends to develop the property for the purpose of construction of the hospital submitted an application with the respondent - BBMP so as to sanction the building plan. The respondent - BBMP issued an endorsement stating that the application submitted by the petitioner for sanctioning of the building plan will be processed only upon the petitioner surrendering the property earmarked for the purpose of widening of road in the master plan free of cost. Hence, this petition.</b></p><p><b>16.<span style=\"white-space:pre\">	</span>Having examined the submissions made by the learned counsel for the parties, the point that arises for consideration is: whether the requirement to relinquish the properties belonging to the petitioners designed as road in the master plan free of cost with the respondent - BBMP as a precondition for sanctioning of the building plans submitted by the petitioners violate Article 300A of the Constitution of India.</b></p><p><b>17.<span style=\"white-space:pre\">	</span>The properties in question are earmarked for the purpose of widening of road in the revised Master Plan 2015 under Section 12(1)(b) of the KT and CP Act. Section 17(3) of the KT and CP Act specifies that the owner is not entitled for compensation while sanctioning a single plot. However, reading of Section 17 of KT & CP Act in its entirety does not specify that the land earmarked as road in the master plan will have to be relinquished free of cost or that the owner is not entitled for compensation while sanctioning the layout plan. Section 17(3) is applicable only to lands enumerated in Section 17-2A like parks, open space, roads formed within the layout and civic amenity site.</b></p><p><b>18.<span style=\"white-space:pre\">	</span>Section 70 of the KT and CP Act specifies that land needed for the purpose of Town Planning Scheme or master plan shall be deemed to be land needed for public purpose within the meaning of Land Acquisition Act, 1894. Section 71 of the KT and CP Act specifies that the State Government can acquire land included in the scheme by taking recourse to the provision contained in Land Acquisition Act 1894 subject to payment of compensation to the owners of the lands.</b></p><p><b>19.<span style=\"white-space:pre\">	</span>A conjoint reading of Sections 12, 17(3), 70 and 71 indicate that if any land needed for the purpose of Town Planning Scheme or master plan shall be acquired by the Government by taking recourse to the provisions of Land Acquisition Act, 1894 subject to payment of compensation to the owners of the land. Section 17(3) of the Act does not specify that the property earmarked for widening of the road requires it to be surrendered free of cost at the time of sanctioning of the single plot.</b></p><p><b>20.<span style=\"white-space:pre\">	</span>The term Residential Development Plan under the Regulations 2015 is defined as plan containing proposal for construction of one or more residential building on a plot measuring more than 20000 sq. meter in an extent and the term Non-residential Development Plan is defined as plan containing </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">proposal for construction of one or more commercial building on a plot size measuring more than 20000 sq. meter.</b></p><p><b>21.<span style=\"white-space:pre\">	</span>Chapter 7 of the Regulations 2015 deals with the Regulations for residential development plan and non-residential development plan. Regulation 7.1(5) and 7.2(d) specify that the road as shown in the Master Plan 2015 shall be incorporated within the plan and shall be handed over to the authority free of cost.</b></p><p><b>22.<span style=\"white-space:pre\">	</span>A reading of the definition of Development Plan and Regulations 7.1(5) and 7.2(d) indicate that it is a condition precedent to incorporate the road shown in the Master Plan - 2015 in the plan and shall be handed over free of cost to the respondent - BBMP. However, these Regulations are applicable only to Development of lands, the extent of which is more than 20000 sq. meters in respect of residential plan and the extent of which is more than 12000 sq. meters in respect of non- residential plan.</b></p><p><b>23.<span style=\"white-space:pre\">	</span>In the present cases, the extent of land sought to be developed for residential/commercial purposes is far less than the extent of land specified in the definition development plan. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Hence, the Regulations 7.1(5) and 7(2)(d) of the Regulations 2015 are not applicable and cannot be invoked requiring the petitioners to relinquish the properties in question free of cost to the respondent - BBMP.</b></p><p><b>24.<span style=\"white-space:pre\">	</span>The Circular dated 29.2.2016 requiring the owners to surrender the properties earmarked for widening of road free of cost at the time of sanctioning of building plans violates Article 300A of the Constitution of India. The Apex Court in the case of KT Plantation (supra) has held that the owner of immovable property cannot be deprived of his property by mere executive order without any specific legal authority or support by competent legislation. In the absence of specific legal authority or support by competent legislation, the impugned Circular issued by the respondent - BBMP violates Article 300A of the Constitution of India.</b></p><p><b>25.<span style=\"white-space:pre\">	</span>Even otherwise, the impugned endorsements and circulars issued by BBMP is arbitrary and discriminatory since the owners of the properties earmarked as Road in Master Plan 2015 and who have not applied for sanctioning of building plan for developing their properties will be entitled for compensation </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under Section 71 of KT & CP Act, if the said properties are acquired for implementing the Master Plan. The petitioners cannot be deprived of their properties earmarked as road in the revised Master Plan, 2015 merely because they intend to develop their properties by obtaining sanctioned building plan.</b></p><p><b>26.<span style=\"white-space:pre\">	</span>In view of preceding analysis, I am of the considered view that the impugned endorsements issued by the respondent</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">- BBMP requiring the petitioners to relinquish the properties in question free of cost as a condition precedent for processing their applications for sanctioning of building plans is without authority of law and the same violate Article 300A of the Constitution of India. Accordingly, I pass the following:</b></p><p><b>ORDER</b></p><p><b>Writ petitions stand allowed:</b></p><div><br></div>', 'c9c3bc44c0c21a0aa57d6887d656765c.JPG', '9ade9993daabcc93eec210984aab5b18.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-03', 1, '', '', '2022-02-04 02:57:21', '2022-02-04 02:59:59'),
(1313, 'QxLjW3RdB3tcHlT8qSXF5Cipg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. A consent decree can NOT be modified or altered under Section 151 or Order 22 Rule 3 unless the mistake is a patent or obvious mistake. Supreme Court. ', '<p><b>Ajanta LLP vs&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Casio Keisanki Kabushiki Kaisha d/b/a Casio Computer Co. Ltd. &amp; Another&nbsp;</span><br></b></p><p><b>Civil Appeal No. 1052 of 2022 decided on 4 February 2022<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice L. Nageswara Rao and Justice B.R. Gavai&nbsp;</span></b></p><p><b><font face=\"var(--bs-font-sans-serif)\"><span style=\"font-size: 1rem;\">Judgement Link: </span></font><a href=\"https://main.sci.gov.in/supremecourt/2020/13025/13025_2020_35_1501_33244_Judgement_04-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/13025/13025_2020_35_1501_33244_Judgement_04-Feb-2022.pdf</a><br></b></p><p><b>12. A judgment by consent is intended to stop litigation\r\nbetween the parties just as much as a judgment resulting\r\nfrom a decision of the Court at the end of a long drawnout fight. A compromise decree creates an estoppel by\r\njudgment . It is relevant to note that in&nbsp; Byram Peston Gariwala v. Union of India&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(1992) 1 SCC 31 –&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">this Court held that the Appellant therein did not raise any doubt as to the validity or\r\ngenuineness of the compromise nor a case was made out\r\nby him to show that the decree was vitiated by fraud or\r\nmisrepresentation. While stating so, this Court dismissed\r\nthe Appeal.&nbsp;&nbsp;</span></b></p><p><b>13. A consent decree would not serve as an estoppel,\r\nwhere the compromise was vitiated by fraud,&nbsp;misrepresentation, or mistake. The Court in exercise of\r\nits inherent power may rectify the consent decree to\r\nensure that it is free from clerical or arithmetical errors so\r\nas to bring it in conformity with the terms of the\r\ncompromise. Undoubtedly, the Court can entertain an\r\nApplication under Section 151 of the CPC for alterations/\r\nmodification of the consent decree if the same is vitiated\r\nby fraud, misrepresentation, or misunderstanding....Though, the High Court\r\ndismissed the Application by refusing to entertain the\r\nApplication on the ground that it was filed under Section\r\n152 of the CPC, we have considered the submissions of\r\nthe parties to examine whether the Appellant has made\r\nout a case for modification of the decree by treating the\r\nApplication as one under the proviso to Order 23 Rule 3\r\nread with Section 151 of the CPC. There is no allegation\r\neither of fraud or misrepresentation on the part of the\r\nRespondent. We are unable to agree with the Appellant\r\nthat there was a mistake committed while entering into a\r\nsettlement agreement due to misunderstanding.\r\nCorrespondence between the advocates for the parties\r\nwho are experts in law would show that there is no\r\nambiguity or lack of clarity giving rise to any\r\nmisunderstanding. Even assuming there is a mistake, a\r\nconsent decree cannot be modified/ altered unless the\r\nmistake is a patent or obvious mistake. Or else, there is a\r\ndanger of every consent decree being sought to be\r\naltered on the ground of mistake/ misunderstanding by a\r\nparty to the consent decree. </b></p><p><b>14. For the foregoing reasons, we uphold the judgment\r\nof the High Court and dismiss the Appeal<br></b></p><p><b><br></b></p><p> <b><br></b></p><p><b><br></b></p><p><br></p>', '651818743d9e2d291e435b231788497d.jpeg', 'dacf94f0c35c321700f0891afdcf2f60.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-04', 1, '', '', '2022-02-05 00:22:38', '2022-02-05 00:22:38'),
(1314, 'FH6BUYYUwdWXhF2VxXXmcHYfh', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Reservation of Mayoral office in local bodies. High Court can interfere under Article 226 when constitutional right of the reserved candidates is infringed. Karnataka High Court.', '<p><span style=\"font-weight: bolder;\">Yellappa vs The Chief Secretary Government of Karnataka and another&nbsp;<br></span><b>Writ Petition 202488 of 2021 and connected matters decided on 4 February 2022<br></b></p><p><b>2. In these writ petitions, the petitioners have challenged the Notification No.PRA/AA/KA/CHUNAVANE/29/ 2021-2022 dated 27th January, 2022 reserving of posts for Office of Mayor and Deputy Mayor in Kalaburagi Municipal Corporation, to the Scheduled Caste and General categories respectively, and also challenged the inclusion of additional names in the voters list, dated 27th January, 2022. Since common issues are&nbsp; involved in all these writ petitions, the same are clubbed, heard together and are disposed of by this common order.</b></p><p><b>27. The Hon\'ble Apex Court, in the case of UNION OF INDIA v. ASSOCIATION FOR DEMOCRATIC REFORMS AND ANOTHER reported in (2002)5 SCC 294 at paragraph 46.4 held that, “in a democracy, the electoral process has a strategic role. The little man of the country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted.” It is further held that “the right to get information in a democracy is recognised all through out and it is a natural right flowing from the concept of democracy.”</b></p><p><b>29. Exercising judicial review on the electioneering process is not tally barred under Article 226 of the Constitution of India. However, this Court has to test, whether democratic principles are adhered to and the respondent-State has followed the principles and procedure contemplated under the particular enactment. In the absence of these aspects, this Court is having jurisdiction under Article 226 of the Constitution of India to set right the anomalies to uphold Rule of Law principles. It is trite law that power vested in an authority must be discharged in accordance with constitutional/statutory requirement&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">see (2020)4 SCC 78). Hon\'ble Supreme Court, in the case of RAMACHANDRA v. GOVIND reported in AIR 1975 SC 915 held that, “where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance, are necessarily forbidden. This Rule squarely applies where the whole aim and object of the Legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other.” The aforementioned dictum was reiterated by the Hon\'ble Supreme Court in the case of MACKINNON MACKENZIE AND COMPANY LIMITED v. MACKINNON EMPLOYEES UNION&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reported in (2015)4 SCC 544.</b></p><p><b>30. Applying the aforementioned principles laid down by this Court and the Hon\'ble Supreme Court to the case on hand, I am conscious of the fact that scope of interference under Article 226 of the Constitution of India is limited and keeping in mind the constitutional mandate of non-interference by judicial body in an election process, I am of the view that learned Senior Counsel appearing for the petitioners were justified in arguing that the Notification dated 27th January, 2022 issued by the respondent-State is illegal and contrary to the Act and Rules made therein, as the respondent-State has issued the first Notification on 03rd September, 2018 reserving posts of Mayor and Deputy Mayor of Kalaburagi Municipal Corporation to Scheduled Caste and General category and thereafter, issued another notification dated 26th December, 2019 reserving the post of Mayor and Deputy Mayor to Scheduled Tribe and Backward Class-A respectively, so also, issued third Notification on 11th February, 2021 reserving to General (Woman) and Backward Class-B categories for Mayor and Deputy Mayor and lastly, by impugned notification dated 27th January, 2022, reserved the post of office of Mayor and Deputy Mayor to Scheduled Caste and General category. It is to be&nbsp; noted&nbsp; that the respondent-State committed the anomaly of changing reservation without adhering to the scope and ambit of Section 10(1-A) of the Act and the Rules made therein. Though the learned Advocate General vehemently argued by relying upon the Statement indicating the rotation of roster to post of Offices of Mayor and Deputy Mayor of Corporations, however, the said rotation of roster do not have statutory recognition. It is also to be noted that the said Statement indicating rotation of roster for the Offices of Mayor and Deputy Mayor of Corporations, cannot override Section 10(1-A) of the Act as well as Article 243-T of the Constitution of India. It is trite law that no Notification/Circular/instructions, etc. shall run counter to Article 243-T of the Constitution of India. If the said statement indicating the rotation of roster for the offices of Mayor and Deputy Mayor of Corporation is accepted, then the constitutional right of the reserved candidates is infringed. In that view of the matter, I do not find force in the arguments advanced by the learned Advocate General and Sri Ashok Haranahalli, learned Senior Counsel appearing for the contesting respondents that, writ petitions are not maintainable.</b></p><p><b>35. It is trite law that, democracy is the basic structure of the Constitution of India. When the democratic principles are not adhered to, this Court has jurisdiction to interfere with such actions of the State and set right the things in consonance with the democratic principles laid down under the golden thread of the Indian Constitution.&nbsp;</b></p><p><b>Writ Petitions are allowed;</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '9091e2b4016ab58e78053c2c116725af.jpg', '302e24edb31e4ac690b9d98ae2a194c4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-07', 1, '', '', '2022-02-08 02:20:10', '2022-02-08 02:20:10'),
(1315, 's6YMjoaXXDRZvHHCV0dTo56IQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Parity in service conditions can not be claimed based on a compromise order which is devoid of any legal basis. Supreme Court. ', '<p><b>R. Muthukumar and others vs The Chairman and Managing Director TANGEDCO and others&nbsp;<br>Civil Appeal 1144 of 2022 and connected matters decided on 7 February 2022<br>Justice Uday Umesh Lalit, Justice S. Ravindra Bhat and Justice Bela M. Trivedi.<br>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2019/9528/9528_2019_32_1501_33171_Judgement_07-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/9528/9528_2019_32_1501_33171_Judgement_07-Feb-2022.pdf</a></b></p><p><b>18. The facts of this case show that the advertisement or notification, calling for\r\neligible candidates, to apply for the post of Helper/trainee was issued in 2012. The\r\nfirst round of litigation, as it were, was initiated on the ground that TANGEDCO\r\nwrongly denied relaxation of upper age limit (to apply, for the candidates). This\r\ngrievance was held to be justified; the High Court directed grant of such exemption,\r\nwhich TANGEDCO in turn, complied. When the recruitment process started,\r\nTANGEDCO clarified that it would conduct an interview, for which it proposed to\r\ngrant 15% weightage. Candidates including the present appellants, and respondent\r\napplicants, participated. Those eligible, and found to be suitable on a combined\r\nassessment of the marks obtained and the viva voce, were appointed. Now, for the\r\nfirst time, some unsuccessful candidates approached the High Court. The single judge\r\nrejected their writ petitions. The candidates appealed; others who had not filed writ\r\npetitions in the court, did so, at that stage (in 2015). The Division Bench, by its\r\ncompromise order dated 14.10.2015, purely based on the compromise terms between\r\nthe aggrieved candidates and TANGEDCO, directed appointment of 84 persons. The\r\ncompromise order was not based on the merits, nor based on an independent\r\nassessment of the merits of the case.&nbsp;<br></b></p><p><b>19. The present aggrieved candidates and several others sought piggyback on the\r\nbasis of the compromise order, arguing that they were similarly situated. They\r\napproached the High Court, from 2016 onwards. These aggrieved candidates’\r\npetitions were rejected, and their claim for parity was turned down. They are now\r\nhere before this court. Another set of candidates was more successful; their petitions\r\nwere allowed; TANGEDCO is here before this court, in its appeal.&nbsp;&nbsp;<br></b></p><p><b>20. A feature that stares at the face of the record before this court, is that the\r\nDivision Bench, in its compromise order, proceeded to accept the terms proposed by\r\nthe parties. The court did not examine - at least its order does not disclose any such\r\nconsideration - the merits of the case, and why such proposal was justified in the facts&nbsp;of the case. It is one thing for a public employer, to concede in the course of\r\nproceedings, to an argument, which it had hitherto clung to, but was untenable.\r\nFairness demands that public bodies, as model employers, do not pursue untenable\r\nsubmissions. In such cases, a concession, which is based on law, and accords to a just\r\ninterpretation of the concerned law and/or rules, is sustainable. However, it is\r\naltogether another thing for a public employer, whose conduct is questioned, and who\r\nhas succeeded on the merits of the case before the lower forum (in this case, the\r\nsingle judge) to voluntarily agree, in an unreasoned manner, to a compromise. The\r\nharm and deleterious effect of such conduct is to prioritize the claim of those before\r\nthe court, when it is apparent that a large body of others, waiting with a similar\r\ngrievance (and some of whom probably have a better or legitimate claim on merits to\r\nbe appointed) are not parties to the proceedings. In such cases, a compromise is not\r\nonly unjustified, it is contrary to law and public interest.</b></p><p><b>23. It is thus, evident that in Aravind Kumar Srivastava (supra) the previous orders\r\nof the tribunal and the court were based on merits adjudication, and not based on\r\nconcession; certainly not based on compromise. It was in the background of such\r\nfacts that denial of relief to similarly situated claims, was held to be unjustified. Most\r\nimportantly, for the purpose of this case, the court carved out an exception: that\r\nsubsequent litigants, wishing to benefit from orders made in others’ cases, had to\r\napproach the courts in time, without delay or laches. In the facts of this case, there is\r\nno question of any finality to the compromise order: it cannot be treated, by any\r\nstretch of the imagination, as an order in rem, or as a binding precedent. Also, the\r\naggrieved appellants, and the contesting candidates (in TANGEDCO’s appeal) did\r\nnot approach the court in time. They woke up after the compromise order, claiming\r\nparity, and filed petitions in the court. Clearly, therefore, they cannot claim any\r\nbenefit from the compromise order.&nbsp;<br></b></p><p><b>25. In view of the foregoing, it is held that the aggrieved appellants, and the\r\nrespondent applicants (in TANGEDCO’s appeal) could not claim the benefit of\r\nparity; their writ petitions were founded on the compromise order, which cannot be\r\njustified in law. The appeals of the aggrieved appellants, against the judgment and\r\norder of the Division Bench of the Madras High Court dated 02.08.2018, has to fail;\r\nit is accordingly dismissed. For the same reasons, TANGEDCO’s appeals, (against&nbsp;the order of 29.04.2019 of the Madras High Court in Writ Appeal Nos. 1071, 1072 of\r\n2016, Writ Petition Nos. 8150, 10266, 10267, l7997, 17998, 29113, 29114, 29115,\r\n29116, 33743, 33744, 33745, 39292, 39673, 41609, 41610 of 2016, and Writ Petition\r\nNos. 13948 13949, 13950, 13951, 13952, 13953, of 2017, Writ Petition Nos. 1808,\r\n18576, 18624 of 2018) succeed and are allowed.</b></p><p><br></p>', 'fb47d17af412fcf614aa439325b18167.JPG', '3d0e39bf8b4ea9d1307815ef4ff786e2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-07', 1, '', '', '2022-02-08 02:58:43', '2022-02-08 02:58:43'),
(1316, 'ELuYBfyFhI5k0MuW7RbRQ1Ghe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Fraudulent encashment of Kisan Vikas Patras in connivance with Post Office employee. Supreme Court orders payment of maturity value with interest. ', '<p><b>Pradeep Kumar and another vs Post Master General and others&nbsp;<br>Civil Appeal 8775-8776 of 2016 decided on 7 February 2022<br>Justice L. Nageswara Rao, Justice Sanjiv Khanna and Justice B.R. Gavai</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgement Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2015/29669/29669_2015_45_1501_33187_Judgement_07-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2015/29669/29669_2015_45_1501_33187_Judgement_07-Feb-2022.pdf&nbsp;</a></b><b><br></b></p><p><b>2. The appellants during the years 1995 and 1996 had purchased\r\nKisan Vikas Patras, ‘KVPs’ for short, in joint names from various\r\npost offices located in the State of Uttar Pradesh in different\r\ndenominations and with varying dates of maturity. The combined\r\nface value on maturity was Rs.32.60 lacs; however, the KVPs were\r\nencashable at the post offices before the maturity date at a lower\r\nvalue after the stipulated/lock-in period of holding.&nbsp;</b></p><p><b>3. As per the appellants, in the last week of February 2000, they had\r\napproached the Post Master, Head Post Office Chowk, Lucknow,\r\nwith the request to transfer the KVPs to the Chowk Post Office,\r\nLucknow. The appellants were asked to apply with the Chowk Post\r\nOffice. They were informed that the transfer request would be\r\nallowed after due verification of the KVPs and the\r\nidentity/signatures on the transfer application from the record with\r\nthe issuing post office. The process, they were forewarned, being\r\ntime-consuming and cumbersome would require several visits to\r\nthe post office. The Post Master, Head Post Office Chowk, Lucknow\r\nhad recommended that they take services of Rukhsana, an agent\r\nappointed by the State of Uttar Pradesh and associated with the&nbsp;post office. As per the appellants, they were misled to believe that\r\nwithout the help of an agent like Rukhsana the transfer would not\r\nbe possible and she would take care of their interest. Rukhsana,\r\nduring the interaction, had informed the appellants that she had\r\nbeen working and associated with the post office for fifteen years,\r\nand being aware of the procedures would get the transfer effected\r\nwithout difficulty. On 03.03.2000, Rukhsana came to the residence\r\nof the appellants, and as instructed, the appellants signed the\r\noriginal KVPs on the backside and handed them over to Rukhsana.\r\nShe also took the Monthly Income Scheme (MIS) passbook stating\r\nthat it was required to process the transfer. Rukhsana executed a\r\nreceipt and gave it to the appellants confirming receipt of the KVPs.\r\n</b></p><p><b>4. Rukhsana did not on her own revert to the appellants and when\r\ncontacted had assured them apropos the transfer. Meanwhile,\r\nappellant No.1, i.e. Pradeep Kumar, had to leave Lucknow to join\r\nthe official duty in Motihari, Bihar. Raj Rani, the second appellant,\r\nremained in touch with Rukhsana, who had informed that the\r\nprocess was taking time.\r\n</b></p><p><b>5. In June 2000, the appellants learnt that Rukhsana had cheated\r\nseveral investors and had been arrested by the police. Thereupon,\r\nthe appellants made enquiries and discovered that the KVPs had \r\nCivil Appeal Nos. 8775-8776 of 2016 Page 4 of 46\r\nbeen encashed from the Yahiyaganj Post Office and Lal Bagh Post\r\nOffice. A sum of Rs. 25,54,000/- was paid in cash to Rukhsana,\r\nwho had pocketed the entire amount.</b></p><p><b>11. Section 31 of the Negotiable Instruments Act, 1881, ‘NI Act’ for\r\nshort, states that a ‘banker’ includes any person acting as a banker\r\nand any post office savings bank. In terms of this section, a post\r\noffice savings bank is a banker under the NI Act.&nbsp;<br></b></p><p><b>12. KVPs issued by the post office are a promissory instrument as\r\ndefined by Section 42 of the NI Act, as it is an unconditional\r\nundertaking signed by the maker to pay a certain sum of money to,\r\nor to the order of a certain person, or the bearer of the instrument.3\r\nSection 134 of the NI Act states that a negotiable instrument may&nbsp;be payable either to order or to bearer. A negotiable instrument is\r\npayable to order, which is expressed to be so payable or which is\r\nexpressed to be payable to a particular person but does not contain\r\nwords prohibiting transfer or indicate an intention that the\r\ninstrument shall not be transferable. It is an accepted position that\r\nKVPs are negotiable instruments in terms of Section 13 of the NI\r\nAct. Sections 15 and 16 of the NI Act define ‘indorsement’,\r\n‘indorsee’, ‘indorser’ and ‘indorsement in blank’ and ‘in full’.\r\nIndorsement for the purpose of negotiation is made by the maker\r\nor holder of the negotiable instrument when he signs on the back\r\nor face of thereof, on a slip of paper annexed thereto or on a stamp\r\npaper for the purpose of negotiation. The person signing is called\r\nthe indorser. If the instrument is signed by the indorser in his name\r\nonly, it is an indorsement in blank. If the indorser also specifies the\r\nperson to whom payment is to be made, the indorsement is said to\r\nbe ‘in full’, and the person so specified is called the indorsee.<br></b></p><p><b>36. In the light of the aforesaid discussion, it can be concluded that the\r\npayment was made in violation of the statutory mandate of Section\r\n10 of the NI Act and, therefore, there is no valid discharge under\r\nclause (c) to Section 82 of the NI Act. Further, as held above,\r\nRukhsana not being a ‘holder’, payment to her is not a valid\r\ndischarge under Section 78 read with Section 8 of the NI Act. The\r\nrespondents would have avoided the liability and claimed valid\r\ndischarge if they had accepted the KVPs with the identity slip19 or if&nbsp;they had made payment by cross cheque, in which case, they\r\nwould have satisfied the condition that they had made payment in\r\ngood faith and there was no negligence, a requirement of clause (c)\r\nto Section 82 read with Section 10 of the NI Act. <br></b></p><p><b>37. Now, we advert to the second issue as to whether the respondents\r\nwould be liable for the wrongs and act of M.K. Singh, respondent\r\nNo. 4, in connivance or at the behest of Rukhsana. We begin by\r\nnoting that M.K. Singh is not a third person but an officer and an\r\nemployee of the Post Office. Post Office, as an abstract entity,\r\nfunctions through its employees. Employees, as individuals, are\r\ncapable of being dishonest and committing acts of fraud or wrongs\r\nthemselves or in collusion with others.20 Such acts of bank/post\r\noffice employees, when done during their course of employment,\r\nare binding on the bank/post office at the instance of the person\r\nwho is damnified by the fraud and wrongful acts of the officers of\r\nthe bank/post office. Such acts of bank/post office employees being\r\nwithin their course of employment will give a right to the appellants\r\nto legally proceed for injury, as this is their only remedy against the\r\npost office. Thus, the post office, like a bank, can and is entitled to\r\nproceed against the officers for the loss caused due to the fraud\r\netc., but this would not absolve them from their liability if the&nbsp;employee involved was acting in the course of his employment and\r\nduties.</b></p><p><b>41. In view of the aforesaid findings, we allow these appeals and set\r\naside the impugned order passed by the NCDRC dismissing the\r\nconsumer case filed by the appellants. The order and directions\r\nagainst Rukhsana remain undisturbed. We would allow the\r\nconsumer case by issuing the following directions:&nbsp;</b></p><p><b>(i) Respondent Nos. 1 to 4 would be jointly and severally liable\r\nto pay the maturity value of the KVPs as on the date the KVPs\r\nwere presented to the post office for encashment, along with\r\n7% simple interest per annum from the said date till the date\r\nof payment.\r\n(ii) The appellants would be entitled to a compensation of Rs.\r\n1,00,000/- and costs of Rs. 10,000/-.\r\n(iii) The amounts as directed above would be paid within eight\r\nweeks from the date of pronouncement of this judgment. In\r\ncase of failure to pay the compensation amount within the\r\naforesaid time, the respondents would be additionally liable\r\nto pay simple interest @ 7% per annum on the compensation\r\namount of Rs.1,00,000/- from the date of pronouncement of\r\nthis judgment till the date of payment<br></b></p><p> <br></p>', 'a8258893e1a2792605a95bb8ac24c360.jpg', '5bc172076ece9a258ab0e9c7fbbeccb9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-07', 1, '', '', '2022-02-08 04:29:12', '2022-02-08 04:29:12');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1317, 'nunmB0Ln9NJawVTIP8s2Gls9y', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Section 498A Indian Penal Code. Supreme Court deprecates implicating relatives of the husband in matrimonial disputes by false and general omnibus allegations. ', '<p><b>Kahkashan Kausar vs State of Bihar and others. <br>Criminal Appeal 195 of 2022 decided on 8 February 2022<br>Justice S. Abudl Nazeer and Justice Krishna Murari </b></p><p><b>Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2020/25575/25575_2020_37_1501_33195_Judgement_08-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2020/25575/25575_2020_37_1501_33195_Judgement_08-Feb-2022.pdf</a></b></p><p><b>2. This appeal is directed against the judgment and order dated 13.11.2019\r\npassed by the High Court of Patna in Criminal Writ Petition No. 1492 of 2019,\r\nfiled by the Appellants under Section 482 of the Code of Criminal Procedure\r\n(hereinafter referred to as ‘CrPC’) challenging the FIR No. 248/2019 dated\r\n01.04.2019 implicating the Appellants for offences under Sections 341, 323,\r\n379, 354, 498A read with Section 34 of the Indian Penal Code (hereinafter\r\nreferred to as ‘IPC’). The High Court vide order impugned herein dismissed the\r\nsame. <br></b></p><p><b>18. The above-mentioned decisions clearly demonstrate that this court\r\nhas at numerous instances expressed concern over the misuse of section\r\n498A IPC and the increased tendency of implicating relatives of the\r\nhusband in matrimonial disputes, without analysing the long term\r\nramifications of a trial on the complainant as well as the accused. It is\r\nfurther manifest from the said judgments that false implication by way of\r\ngeneral omnibus allegations made in the course of matrimonial dispute, if\r\nleft unchecked would result in misuse of the process of law. Therefore,\r\nthis court by way of its judgments has warned the courts from proceeding\r\nagainst the relatives and in-laws of the husband when no prima facie case\r\nis made out against them.</b></p><p><b>19. Coming to the facts of this case, upon a perusal of the contents of\r\nthe FIR dated 01.04.19, it is revealed that general allegations are levelled\r\nagainst the Appellants. The complainant alleged that ‘all accused harassed\r\nher mentally and threatened her of terminating her pregnancy’.\r\nFurthermore, no specific and distinct allegations have been made against\r\n12\r\neither of the Appellants herein, i.e., none of the Appellants have been\r\nattributed any specific role in furtherance of the general allegations made\r\nagainst them. This simply leads to a situation wherein one fails to\r\nascertain the role played by each accused in furtherance of the offence.\r\nThe allegations are therefore general and omnibus and can at best be said\r\nto have been made out on account of small skirmishes. Insofar as\r\nhusband is concerned, since he has not appealed against the order of the\r\nHigh court, we have not examined the veracity of allegations made\r\nagainst him. However, as far as the Appellants are concerned, the\r\nallegations made against them being general and omnibus, do not warrant\r\nprosecution.<br></b></p><p><b>22. Therefore, upon consideration of the relevant circumstances and in\r\nthe absence of any specific role attributed to the accused appellants, it\r\nwould be unjust if the Appellants are forced to go through the tribulations\r\nof a trial, i.e., general and omnibus allegations cannot manifest in a\r\nsituation where the relatives of the complainant’s husband are forced to\r\nundergo trial. It has been highlighted by this court in varied instances,\r\nthat a criminal trial leading to an eventual acquittal also inflicts severe\r\nscars upon the accused, and such an exercise must therefore be\r\ndiscouraged. <br></b></p><p><b><br></b></p><p><br></p>', '14ed63ff0fe47be56abfc9eb226617aa.JPG', 'eb57b38b39814d917f239524411ba057.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-08', 1, '', '', '2022-02-09 02:21:37', '2022-02-09 02:24:24'),
(1318, 'FXr07SrhysNBw4tIi48p5J20Z', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Customs Brokers Licensing Regulations. Time limit of 90 days for passing the order in original under Regulation 17 is directory and not mandatory. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">The Commissioner of Customs, Bangalore Division vs M/s. Sri Manjunatha Cargo Pvt. Ltd.<br></span><b>C.S.T.A No. 10 of 2020 decided on 12 January 2022<br>Justice S. Sujatha and Justice S. Vishwajith Shetty.&nbsp;</b></p><p><b>This appeal is filed under Section 130 of the Customs Act, 1962 (hereinafter referred to as \"the Act of 1962\"), challenging the Final Order No.A/20356/2020 dated 05.06.2020 passed by the Customs, Excise and Service Tax Appellate Tribunal (\"CESTAT\" for brevity), South Zonal Bench, Bangalore, in Customs Appeal No.21036/2019.</b></p><p><b>2.Whether the regulation 17 which prescribes the time limit of 90 days for passing the order in original is mandatory or directory?</b></p><p><b>9. A reading of the said Regulation would make it very clear that within a period of 90 days from the date of receipt of an offence report, a show cause notice is required to be issued to the Customs Broker&nbsp; stating the grounds on which it is proposed to revoke the licence or impose penalty and on receipt of such notice within 30 days, the Customs broker is required to submit a report making it very clear whether&nbsp; he&nbsp; desires to be heard in person by the officer appointed under the said provision of law. After receipt of such a reply, an Inquiry Officer would be appointed under Regulation 17(2) of the C.B.L.R., 2018, who shall hold an inquiry as provided under Regulation 17(3) of the C.B.L.R., 2018. A reading of Regulation&nbsp; 17(3)&nbsp; and 17(4) would go to show that during the course of inquiry, the competent officer may not only record the statement of the parties, but also permit the parties to cross-examine and produce necessary oral and documentary evidence in support of their case. After conclusion of the inquiry, a report is required to be&nbsp; filed by the Inquiry Officer and such a report is&nbsp; required to be filed within 90 days from the date of issuing notice under Regulation 17(1) of the C.B.L.R.,</b></p><p><b>10. The question whether the time limit for issuing the show cause notice and for completion of&nbsp; the inquiry report and passing of orders after receipt of the inquiry report are mandatory or directory has been considered by the Division Bench of the Bombay High Court in the&nbsp; case&nbsp; of&nbsp; Unison&nbsp; Clearing&nbsp; P.Ltd.(supra). In the case on hand, the court had considered the provisions of Customs Brokers Licensing Regulations 2013&nbsp;</b></p><p><b>12. It is a settled position of law that whenever a statute prescribes or provides that a particular act has to be done within a time frame in a particular manner and also further provides that&nbsp; failure to comply with the requirements of the provision, would lead to a specific consequence then while interpreting such a provision of law, it has to be held that the compliance&nbsp; of the said provision of law is mandatory and not directory and this interpretation is required to be given for the simple reason that the specified consequence would follow if there is no compliance of the&nbsp; provision of law.</b></p><p><b>13 A&nbsp; reading&nbsp; of&nbsp; Regulation&nbsp; l7&nbsp; of&nbsp; the&nbsp; C.B.L.R., 20l8 makes it very clear that&nbsp; though&nbsp; there&nbsp; is&nbsp; a time limit stipulated in the Regulations to complete a particular act, non-compliance of the same would not lead to any specific consequence.</b></p><p><b>Under&nbsp; the&nbsp; circumstances,&nbsp; we&nbsp; are&nbsp; of&nbsp; the considered view that the provisions of Regulation l7 of the&nbsp; C.B.L.R.,&nbsp; 20l8&nbsp; is&nbsp; required&nbsp; to&nbsp; be&nbsp; considered&nbsp; as directory and not mandatory and accordingly, we answer the substantial questions of law Nos.l to 3 in favour of the appellant and against the respondent.</b></p><p><br></p>', '3334476fa85bfefb1e8d25acc3ed715e.JPG', 'f9893f5f3e8ac9be9a49d2b5879288f5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-08', 1, '', '', '2022-02-09 03:00:32', '2022-02-09 03:00:32'),
(2756, 'LHwoPBiOSCFsmZ439BXkHVucc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicle Cases. If accident aggravates already existing decease which results in death, claim petition cannot be rejected for want of nexus. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>National Insurance Company Ltd Vs Menpa Maistry and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>MFA 4286 of 2014 decided on 10 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice T.G. Shivashankare Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In this appeal the appellant has challenged the judgment dated 03.03.2014 passed in M.V.C.No.1847/2010 by the Principal Senior Civil Judge & Motor Accident Claims Tribunal, Mangalore (Hereinafter referred to as ‘Tribunal\' for short).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>Briefly stated, the facts are that, one Ravi, the deceased, was the son of the first petitioner and brother of second petitioner. They were the residents of Mudigere Taluk. The deceased was suffering from Jaundice. On 13.04.2010, for higher treatment, he was carried in an Ambulance bearing No.KA-13/M- 0472 from Chikmagalur to Mangalore. At about 2.30 a.m., at Kodekkal Railway over bridge, Alape village it was driven by its driver in a rash and negligent manner and toppled, causing injures to the deceased. He was succumbed to the injuries at Mangalore Hospital. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>The petitioners moved the Tribunal seeking compensation that the deceased died on account of the accident. The claim was opposed by the respondents on the ground that there is no nexus between the accident and death of the deceased. The Tribunal considering the evidence awarded compensation of Rs.5,50,000/- with interest @ 6%.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 5.<span style=\"white-space:pre\">	</span>The Insurance Company is before this court on the ground that there was no nexus between the accident and death of the deceased. FSL report has suggested that the death was due to lobor Pneumonia and Tuberculosis with mild steatosis of liver, and it was not on account of the accident. The Tribunal ought to have rejected the claim and also urged that the income taken and assessment of dependency was on higher side.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>There is no dispute that the deceased was suffering from jaundice and the cause of death as mentioned in the FSL report was on account of Jaundice. If the deceased was carried to provide him with better treatment, if he had treated at Mangalore his ailment could have been cured and walked out of the hospital, jaundice is not a fatal ailment, better treatment is available at higher medical centers like Mangalore and for that reason, he was being carried in an Ambulance. The driver though knew that he is carrying a patient, did not take precaution while driving, instead, he negligently caused the accident, due to the impact, the ailment of the deceased was aggravated and the patient died in the hospital. Hence, there is nexus to accident and cause of death of the deceased, but the percentage may vary and therefore, there is no sound argument on behalf of the insurance company. Hence, the ground urged for dismissal of claim cannot be supported with.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>At the time of accident, deceased was alive, because of the accident he died. The reason for the death has nexus to the accident though his serious ailment aggravated death. Even assuming for the sake of argument that the accident may have impacted and aggravated the ailment, but it cannot be more than 50%. The accident was of the year 2010, the deceased was a bachelor aged 26 years, he was an earning member, without proof of income, his income is taken at Rs.5,500/- and 40% of future prospects Rs.2,200/- is added in view of National Insurance Co.Ltd. -vs- Pranay Sethi and Others1 case, then it comes to Rs.7,700/- if 50% of the impact is taken out, then it will come to Rs.3,850/-, since the deceased was a bachelor, another 50% is taken out towards personal expenses, it comes to Rs.1,925/- multiplied by \'17\', the loss of dependency comes to Rs.3,92,700/- (Rs.1,925/-x17x12). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>Under the conventional heads, for love and affection Rs.40,000/-, loss of estate and funeral expenses Rs.15,000/- each if added, then compensation will come to Rs.4,62,700/- as against a sum of Rs.5,50,000/-. Hence, the second petitioner being the unmarried sister since father died during pendency of the appeal, is entitled to Rs.4,62,700/- as against Rs.5,50,000/- awarded by the Tribunal. Accordingly, the appeal needs to be allowed and order of the Tribunal needs modification.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The appeal is allowed in part.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5315dbda828b4a867500d8988533c150.jpeg', '72237bd121e27a4e09e009ae46231814.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-06', 1, '', '', '2023-03-03 15:01:22', '2023-03-06 10:29:38'),
(2757, '3COZkcdReu0NDtwgSvCvkIbML', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Industrial Disputes Act. Employer is not liable to pay Provident Fund contribution in respect of Section 17B wages to employee. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Himalaya Drug Company Vs The Regional Provident Fund Commissioner and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 18320 of 2019 decided on 13 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice C.M. Poonacha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>It is the case of the Petitioner that Respondent Nos.3 to 14 were its employees and were transferred from Bengaluru to Dehradun on 08.07.2005 and relieved them from the Bengaluru factory complex. The said transfer was challenged and a dispute was raised before the Labour Court. The Labour Court vide its award, ordered for reinstatement of the said Workmen with back wages. Being aggrieved, the Petitioner filed Writ Petitions before this Court challenging the award passed by the Labour Court. This Court granted stay of the award passed by the Labour Court subject to payment of wages as per Section 17B of the Industrial Disputes Act, 1947 (for short \'ID Act\'). During pendency of the Writ Petitions, the Petitioner-company and the Workmen settled the disputes amongst themselves and filed a Joint Memo setting out the terms of settlement. This Court vide its order dated 24.08.2011 took on record the said Joint Memo and disposed off the Writ Petitions by modifying the award of the Labour Court in terms of the Joint Memo.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>Under the terms of Joint Memo, the Workmen received an ex-gratia amount of `7,00,000/- and resigned from the services of the Petitioner-company and received the said sum of `7,00,000/- as ex-gratia in consideration of all the claims to wages and all other benefits for the period from the date of transfer till the date of resignation. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>Respondent No.1 - Regional Provident Fund Commissioner - 1 (for short \'PF Commissioner\') issued notice to the Petitioner demanding Provident Fund contribution on the payment of `7,00,000/- in respect of each of the Workmen. The Petitioner filed its objection to the said notice. The Respondent No.1 by order dated 18.03.2014, in proceedings conducted under Section 7A of the Employees\' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as \'PF Act\') held that the Petitioner was liable to pay the Provident Fund contribution in respect of the settlement made to the Workmen and quantified the amount payable by the Petitioner and directed it to remit the assessed amount of `27,86,187/-, failing which, the proceedings to recover the same would be initiated under the provisions of the PF Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 5.<span style=\"white-space:pre\">	</span>Being aggrieved, the Petitioner challenged the said order dated 18.03.2014 before the Appellate Authority, i.e., the Central Government Industrial Tribunal - cum - Labour Court (hereinafter referred to as \'Appellate Authority\'). The Respondent No.1 - Commissioner entered appearance before the Appellate Authority and contested the said proceedings by filing its objections. The Tribunal, by its order dated 05.04.2019, rejected the appeal filed by the Petitioner.   Being aggrieved, the present Writ Petition is filed seeking appropriate reliefs.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>I have considered the submissions made by the learned Senior Counsels for the partes as well as the learned counsel for the authorities and perused the material available on record. The questions that arise for consideration are:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> i)<span style=\"white-space:pre\">	</span>Whether the Petitioner-Company is liable to pay P.F. contribution in respect of 17B wages paid to Respondent Nos.3 to 14?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> ii)<span style=\"white-space:pre\">	</span>Whether the Petitioner-Company is liable to pay P.F. Contribution in respect of ex-gratia payment of `7,00,000/- paid to Respondent Nos.3 to 14? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">iii)<span style=\"white-space:pre\">	</span>Whether the orders passed by the PF Commissioner and the Appellate Authority are liable to be interfered with?<br></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space: pre;\">	</span>In the present case, it is the contention of the Petitioner that Respondent No.1 – Authority while determining the Provident Fund contribution on the ex- gratia amount as well as the 17B wages paid to Respondent Nos.3 to 14 has made various errors in calculation.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>In view of the fact that the primary question arises for consideration in this Writ Petition as is framed in para No.10 above regarding the liability of the Petitioner to pay Provident Fund contribution of 17B wages and on the ex-gratia payment the said question is answered in this Writ Petition and question regarding recalculation of the contribution amount as noticed in para No.10 above is to be considered by the Provident Fund Authorities.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 21.<span style=\"white-space:pre\">	</span>In view of the settled position of law as noticed from the aforementioned judgments, the workmen is deemed to have been in the employment of the Petitioner-Company upto 24.08.2011, the Compensation paid by the Petitioner-Company although termed as \'ex- gratia\', by virtue of their employment with the Petitioner- Company, squarely falls under the definition of basic wage as contemplated under Section 2(b) of the PF Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 22.<span style=\"white-space:pre\">	</span>In view of the aforementioned, the question No.1 framed for consideration at para No.10 above regarding liability of the Petitioner-Company to pay Provident Fund contribution in respect of 17B wages is answered in the Negative. Question No.2 regarding the liability of the Petitioner to pay Provident Fund contribution in respect of ex-gratia payment is answered in the Affirmative. With regard to question No.3, the orders dated 18.03.2014 passed by the PF Authority and the order dated 15.04.2019 passed by the Appellate Authority are liable to be interfered with and hence, question No.3 is answered in the Affirmative. The matter is required to be remanded to Respondent   No.1-Authority for the purpose of recalculating the Provident Fund contribution of the Petitioner-Company having regard to the discussions made above and also to recalculate the Provident Fund contribution of the Petitioner by taking into consideration the errors which have been pointed out by the Petitioner as noticed at para No.19 above.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> i)<span style=\"white-space:pre\">	</span>The Writ Petition is partly allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd47802061e18eaa282bdf7cb219f17a0.JPG', '4a1d30bc38253f5a1e0637f3012d716e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-06', 1, '', '', '2023-03-03 15:45:24', '2023-03-06 06:31:48'),
(1320, 'xwgibjLKKCwZrRxPBhaslIqCK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Independent suit challenging compromise decree is not maintainable. Cleverly drafted plaint making indirect attack on the compromise decree is liable to be rejected. Supreme Court.  ', '<p><b>M/s. Sree Surya Developers and Promoters vs N. Sailesh Prasad and Ors.<br></b><span style=\"font-weight: bolder;\">Civil Appeal 439 of 2022 decided on 9 February 2022<br></span><b>Justice M.R. Shah and Justice Sanjiv Khanna<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/41945/41945_2019_42_1502_33214_Judgement_09-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/41945/41945_2019_42_1502_33214_Judgement_09-Feb-2022.pdf</a></b><b><br></b></p><p><b>1. Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order dated 01.10.2019 passed by the High Court for the State of\r\nTelangana at Hyderabad in Appeal Suit No.454 of 2019 by which the\r\nHigh Court has allowed the said appeal preferred by the respondent\r\nNo.1 herein – original plaintiff and has quashed and set aside the order\r\npassed by the learned II Additional District Judge, Ranga Reddy District\r\ndated 02.05.2019 in I.A. No.108 of 2019 in O.S. No.537 of 2018 by which the learned Trial Court rejected the plaint under Order 7 Rule\r\n11(d) of the Civil Procedure Code (hereinafter referred to as “CPC”), the\r\noriginal defendants to O.S. No.537 of 2018 have preferred the present\r\nappeals.&nbsp;<br></b></p><p><b>6. At the outset, it is required to be noted that in the present case, the\r\nTrial Court rejected the plaint of O.S. No.537 of 2018 in exercise of\r\npowers under Order VII Rule 11 CPC on the ground that the said suit\r\nwould not be maintainable in view of specific bar under Order XXIII Rule\r\n3A CPC. The High Court by the impugned judgment and order has set\r\naside the said order and has remanded the matter to the Trial Court by\r\nobserving that while passing the order rejecting the plaint, the Trial Court\r\nhad not considered the provisions of Order XXXII Rules 1 to 7 CPC.\r\nHowever, it is required to be noted that while passing the impugned&nbsp;judgment and order, the High Court has not at all dealt with and\r\nconsidered the provisions of Order XXIII Rule 3A CPC and has not\r\nconsidered at all whether in fact the suit challenging the Compromise\r\nDecree and/or for the reliefs sought in the suit would be maintainable or\r\nnot. What was required to be considered by the High Court was whether\r\nthe independent suit questioning the Compromise Decree would be\r\nmaintainable or not. The aforesaid crucial aspect has not been dealt\r\nwith by the High Court at all and High Court has gone into the validity of\r\nthe Compromise Decree in view of Order XXXII Rule 7 CPC. At the\r\nstage of deciding the application under Order VII Rule 11 CPC, the only\r\nthing which was required to be considered by the High Court was\r\nwhether the suit would be maintainable or not and that the suit\r\nchallenging the Compromise Decree would be maintainable or not in\r\nview of Order XXIII Rule 3A CPC and at this stage, the High Court /\r\nCourt was not required to consider on merits the validity of the\r\nCompromise Decree.<br></b></p><p><b>7. Now, so far as the main issue whether the Trial Court rightly\r\nrejected the plaint in exercise of powers under Order VII Rule 11 CPC on\r\nthe ground that an independent suit challenging the Compromise Decree\r\nwould be barred in view of Order XXIII Rule 3A CPC is concerned, on\r\nplain reading of Order XXIII Rule 3A CPC, the Trial Court was justified in&nbsp;&nbsp;rejecting the plaint. Order XXIII Rule 3A CPC, which has been inserted\r\nby amendment in 1976 reads as under:-\r\n“3A. Bar to suit. -- No suit shall lie to set aside a decree\r\non the ground that the compromise on which the decree\r\nis based was not lawful.”\r\n<br></b></p><p><b>8. Therefore, on plain reading of Order XXIII Rule 3A CPC, no suit\r\nshall lie to set aside a decree on the ground that the compromise on\r\nwhich the decree is based was not lawful.&nbsp;<br></b></p><p><b>9. In view of the above decisions of this Court, the Trial Court was\r\nabsolutely justified in rejecting the plaint on the ground that the suit for&nbsp;the reliefs sought challenging the Compromise Decree would not be\r\nmaintainable. &nbsp;<br></b></p><p><b>10. Now, so far as the submission on behalf of the plaintiff that in the\r\nsuit the plaintiff has not specifically prayed for setting aside the\r\nCompromise Decree and what is prayed is to declare that the\r\nCompromise Decree is not binding on him and that for the other reliefs\r\nsought, the suit would not be barred and still the suit would be\r\nmaintainable is concerned, the aforesaid cannot be accepted.\r\n</b></p><p><b>10.1 As held by this Court in a catena of decisions right from 1977 that\r\na mere clever drafting would not permit the plaintiff to make the suit\r\nmaintainable which otherwise would not be maintainable and/or barred\r\nby law. It has been consistently held by this Court that if clever drafting\r\nof the plaint has created the illusion of a cause of action, the court will\r\nnip it in the bud at the earliest so that bogus litigation will end at the\r\nearlier stage.&nbsp;<br></b></p><p><b>13. In view of the above and for the reasons stated above, the present\r\nappeals succeed.&nbsp;</b><br></p>', '78c05db256d4456792debb41f826433e.jpg', 'ee2f4c3afc0bc6e1aa5f407f1644cd25.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-09', 1, '', '', '2022-02-10 02:27:08', '2022-02-10 02:27:08'),
(1321, 'z4FxRp90d6PaeoM9unsMsaS1F', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Court cannot postpone framing of necessary issues when pleadings give raise to a lis. Failure to frame issues amounts to failure to exercise judicial duty. Karnataka High Court.   ', '<p><span style=\"font-weight: bolder;\">T N Thimmarajachar vs K.R. Sathyanarayana and others&nbsp;<br></span><b>Writ Petition 8980 of 2021 decided on 11 January 2022</b></p><p><b>Aggrieved by the rejection of his application in IA No.9 under Order 14 Rule 1 and 5 CPC, the plaintiff in OS No.374/2016 on the file of the LXVI Additional City Civil and Sessions Judge , Bengaluru City, has preferred this petition.</b></p><p><b>6. When that MFA was pending, the trial Court in the suit framed the following three issues as preliminary issues:</b></p><p><b>“(i) Whether the suit as brought for the relief of bare injunction without the relief of declaration is maintainable?</b></p><p><b>(ii)<span style=\"white-space:pre\">	</span>Whether to seek the relief of declaration now, the same is hit by limitation?</b></p><p><b>(iii)<span style=\"white-space:pre\">	</span>Whether there is cause of action to the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">suit?”</b></p><p><b>Trial Court directed that the plaintiff shall go on with the suit only on those three issues.</b></p><p><b>7. After disposal of MFA 1329/2016 petitioner filed IA No.9 as per Annexure-E under Order XIV Rules 1 and 5 CPC requesting the trial Court to frame the following additional issues:</b></p><p><b>(i) Whether the plaintiff proves that he is in lawful possession of the schedule property as on the date of suit?</b></p><p><b>(ii)<span style=\"white-space:pre\">	</span>Whether plaintiff proves the defendants are unlawfully interfering with his possession and enjoyment of the suit property?</b></p><p><b>(iii)<span style=\"white-space:pre\">	</span>Whether the plaintiff is entitled to the relief sought in this suit?”</b></p><p><b>9. The trial Court on hearing both side by impugned order Annexure-A rejected the said application holding that the question of framing the other issues arise only if the plaintiff succeeds in convincing the Court on the Preliminary Issues which are the questions of law.</b></p><p><b>20. The reading of the above two provisions i.e.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Order XIV Rules 1 and 2 show that issues arise the moment pleadings are completed. Therefore, the Court has a duty to frame all such issues. Only&nbsp; discretion available&nbsp; to&nbsp; the Court is to postpone the trial of the issues involving the question of facts and set down the issues involving pure question of law for hearing as the Preliminary issues.</b></p><p><b>25. There cannot be any lis without issues. Because of the issues there would be trial by the Court in which the parties would be called upon to produce evidence and Court will decide the matter. In that background, failure to frame the issues not only amounts failure to exercise judicial duty enjoined upon by the trial Court, but also a travesty of justice to be expended to the parties in its letter and spirit.</b></p><p><b>28. In the light of the above legal position, it was mandatory for the Trial Court to frame all the issues arising in the suit. When certain issues arise in the case, the Court has no power or discretion to postpone the framing of such issues holding that first it frames only the issues of law and only after the trial is concluded on such issues of law, it frames the other issues. The trial Court despite holding that the proposed issues do arise in the case declines to frame such issues. The impugned order is vitiated by jurisdictional error and liable to be quashed. Therefore, the petition is allowed.</b></p><p><br></p>', 'ae99902f6bda5cac05f657dfaddce1fc.jpg', '1af94c6d351f1821fd8d134e72c8c257.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-09', 1, '', '', '2022-02-10 04:03:33', '2022-02-10 04:03:33'),
(1322, '3DYct4fnVE0zKltj9TQ39mzr3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'When a Judicial Officer having good track record tenders resignation, High Court ought to counsel and persuade him/her to withdraw it in the interest of the institution.\'\' Supreme Court while reinstating the judge who resigned out of frustration. ', '<p><b>Ms. X vs Registrar General, High Court of Madhya Pradesh and another&nbsp;</b></p><p><b>Writ Petition 1137 of 2018 decided on 10 February 2022</b></p><p><b>Justice L. Nageswara Rao and Justice B.R. Gavai.&nbsp;</b></p><p><b>Judgement Link:&nbsp;&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2018/26761/26761_2018_35_1501_33211_Judgement_10-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/26761/26761_2018_35_1501_33211_Judgement_10-Feb-2022.pdf</a></b></p><p><b>1. The petitioner has approached this Court in the instant writ petition filed under Article 32 of the Constitution of India seeking the following reliefs: a. “Issue an&nbsp; appropriate writ, order&nbsp; or direction in&nbsp; the nature of mandamus to quash and set aside the order dated 11.01.2018 of Chief Justice of the High Court communicated on 25.1.18 of Madhya Pradesh passed after the Full Court Meeting, rejecting the application for reinstatement as violative of Articles 14, 15, 16, 21 r/w. 233, 235 &amp; 311 of the Constitution of India and Natural Justice;&nbsp;</b></p><p><b>56. We have no hesitation in holding that the petitioner has established that her transfer order was in contravention of the&nbsp; &nbsp;Transfer&nbsp; &nbsp;Policy&nbsp; &nbsp;and&nbsp; &nbsp;that&nbsp; &nbsp;the&nbsp; &nbsp;rejection&nbsp; &nbsp;of&nbsp; &nbsp;her&nbsp; &nbsp;two representations, in addition of being contrary to the Transfer Policy,&nbsp; &nbsp;were&nbsp; &nbsp;also&nbsp; &nbsp;arbitrary.&nbsp; &nbsp; &nbsp;As&nbsp; &nbsp;such,&nbsp; &nbsp;the&nbsp; &nbsp;petitioner&nbsp; &nbsp;has discharged&nbsp; &nbsp;her&nbsp; &nbsp;burden&nbsp; &nbsp;and&nbsp; &nbsp;the&nbsp; &nbsp;onus&nbsp; &nbsp;is&nbsp; &nbsp;shifted&nbsp; &nbsp;on&nbsp; &nbsp;the respondent No.1 to show that the petitioner’s transfer order was fair and reasonable in the facts and circumstances of the case.&nbsp; We find that the respondent No.1 has utterly failed to discharge its burden.&nbsp; On the contrary, the admissions made before the JIC by the then Judge on the Transfer Committee clearly show that the transfer was made solely on the basis of the complaint made by the then D &amp; SJ, Gwalior without verifying the veracity thereof.&nbsp; Not only this, but it is evident that&nbsp; &nbsp;the&nbsp; &nbsp;then&nbsp; &nbsp;Judge&nbsp; &nbsp;had&nbsp; &nbsp;not&nbsp; &nbsp;looked&nbsp; &nbsp;into&nbsp; &nbsp;the&nbsp; &nbsp;annexures attached&nbsp; &nbsp;with&nbsp; &nbsp;the&nbsp; &nbsp;representation,&nbsp; &nbsp;which&nbsp; &nbsp;included&nbsp; &nbsp;the&nbsp; &nbsp;fee receipts etc. of the petitioner’s daughter.&nbsp;&nbsp;</b></p><p><b>58. It is trite that the State is under the obligation to act fairly without ill will or malice — in fact or in law. “Legal malice” or “malice in law” means something done without lawful&nbsp; &nbsp;excuse.&nbsp; &nbsp;It&nbsp; &nbsp;is&nbsp; &nbsp;an&nbsp; &nbsp;act&nbsp; &nbsp;done&nbsp; &nbsp;wrongfully&nbsp; &nbsp;and&nbsp; &nbsp;wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. Where malice is attributed to the State, it can never be a case of malice or spite on the part of the State. It would mean exercise of statutory power for “purposes foreign to those for which it is in law intended”. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others.</b></p><p><b>86. It will not be out of place to mention that in some High Courts, a&nbsp; practice is followed, that&nbsp; whenever a&nbsp; Judicial Officer having good track record tenders his/her resignation, an attempt is made by the Senior Judges of the High Court to counsel and persuade him/her to withdraw the resignation. Valuable time and money is spent on training of a Judicial Officer. Losing a good Judicial Officer without counselling him/her&nbsp; &nbsp;and&nbsp; &nbsp;without&nbsp; &nbsp;giving&nbsp; &nbsp;him/her&nbsp; &nbsp;an&nbsp; &nbsp;opportunity&nbsp; &nbsp;to introspect and re­think, will not be in the interest of either the Judicial Officer or the Judiciary.&nbsp; We find that it will be in the interest of judiciary that such a practice is followed by all the High Courts.&nbsp;</b></p><p><b>88. It is contended on behalf of the MP High Court that the petitioner, who was on probation, had voluntarily tendered her resignation, which was accepted and as such, led to an irrevocable&nbsp; &nbsp;severance&nbsp; &nbsp;of&nbsp; &nbsp;relationship&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;employer&nbsp; &nbsp;and employee. In this regard, it is to be noted that the petitioner was initially appointed on probation for a period of two years on 1st&nbsp; August 2011.&nbsp; &nbsp;Her probation was completed on 1st August 2013.&nbsp; Admittedly, there has been no order extending the period of probation of the petitioner from 1st August 2013 onwards. On the contrary, she was assigned with various additional duties in the year 2013.&nbsp; &nbsp;Not only this, but her assessment for the assessment year 2013, during which, she would&nbsp; &nbsp;be&nbsp; deemed&nbsp; &nbsp;to&nbsp; &nbsp;be&nbsp; &nbsp;confirmed,&nbsp; &nbsp;was&nbsp; &nbsp;‘very&nbsp; &nbsp;good’.&nbsp; &nbsp;We therefore find that the said contention is nothing but an after­thought.</b></p><p><b>95. As has already been discussed hereinabove, we may reiterate that we have decided the present matter only on the basis of the peculiar facts and circumstances, as are found in the present matter.&nbsp; We do hope, that in future, similar facts would never arise for consideration, at least in a lis between a High Court and a Judicial Officer. However, we may remind ourselves of the dictum that law is supreme and no one is above law.&nbsp; It would be apt to reproduce the words of Thomas Fuller, which have been quoted by Lord Denning, “Be ye never so high, the law is above you”.&nbsp;</b></p><p><b>96. Before we part with the judgment, we find it our duty to place on record our appreciation for the valuable assistance rendered by Smt. Indira Jaising, learned Senior Counsel and Shri Tushar Mehta, learned Solicitor General of India.</b></p><p><b>97. In the result, the writ petition is partly allowed in the following terms:&nbsp;</b></p><p><b>(i) We hold and declare that the petitioner’s resignation from the post of Additional District &amp; Sessions Judge, Gwalior dated 15th July 2014, cannot be construed to be voluntary and as such, the order dated 17th July 2014,&nbsp; &nbsp;passed&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;respondent&nbsp; &nbsp;No.&nbsp; &nbsp;2,&nbsp; &nbsp;thereby accepting the resignation of the petitioner, is quashed and set aside; and (ii) The&nbsp; &nbsp;respondents&nbsp; &nbsp;are&nbsp; &nbsp;directed&nbsp; &nbsp;to&nbsp; &nbsp;re­instate&nbsp; &nbsp;the petitioner&nbsp; &nbsp;forthwith&nbsp; &nbsp;as&nbsp; &nbsp;an&nbsp; &nbsp;Additional&nbsp; &nbsp;District&nbsp; &nbsp;&amp; Sessions Judge.&nbsp; Though the petitioner would not be entitled&nbsp; &nbsp;to&nbsp; &nbsp;back&nbsp; &nbsp;wages,&nbsp; &nbsp;she&nbsp; &nbsp;would&nbsp; &nbsp;be&nbsp; &nbsp;entitled&nbsp; &nbsp;for continuity in service with all consequential benefits with effect from 15th July 2014.&nbsp;&nbsp;</b></p><p><b>98. No order as to cost.&nbsp; Pending application(s), if any, shall stand disposed of in the above terms</b></p>', 'df6ccf6b7e9a0b7fad3906ddf5d042d3.jpg', '9f2a3653cfcc7bee2d836019a8480497.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-10', 1, '', '', '2022-02-11 02:41:01', '2022-02-11 02:46:21'),
(1323, 'ZygVuYojUBeui1WnlnTbfwLqm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Probate of a Hindu Will in respect of the properties situated within the State of Karnataka is NOT required. Karnataka High Court. ', '<p><b>Ramani R. Shetty v. Saku Shedthy, <br>2010 SCC OnLine Kar 5063 : (2011) 2 ICC 804 : (2011) 1 Kant LJ 242 : (2010) 3 AIR Kant R 153 : (2010) 3 KCCR 2373 : (2011) 4 KCCR (SN 412) 414 : 2010 AIHC 3371 : (2011) 1 HLR 420 : (2011) 2 Civ LT 162 at page 810.</b></p><p><b>25. In the instant case, it is an admitted fact that the Will in question is in respect of a certain property at Mumbai City apart from other properties within the State of Karnataka. The Will has been executed within the State of Karnataka. The probate of a Hindu Will not being compulsory for a legatee, to establish his right in a Court of law, within the State of Karnataka, the question remains whether Section 213 read with Section 57 would yet require the plaintiffs to have obtained probate of the Will, since it pertains also to a property at Mumbai. If the wording of clause (b) to Section 57 is seen, that the Will would have to be probated insofar as it relates to the immoveable property within Mumbai City. The plaintiffs admittedly were not concerned with the property in Mumbai. Hence, it cannot be said that the suit was incompetent on account of probate not having been obtained in respect of the properties covered under the Will. The question would then arise - if the property in Mumbai was also involved, was it then would then be possible to state that the plaintiffs were required to obtain probate? In such a contingency when a testator has left behind properties in more than one State is concerned, it is contemplated under Sections 273 and 274 of the Act.</b></p>', 'd793cedd99ddd5d01ce7005b355174c1.jpg', '5c2e6ca2755ffed306f78d65373cf7c2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-12', 1, '', '', '2022-02-13 03:56:50', '2022-02-13 04:05:33');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1324, 'x9n2NGfiC6Zysf3Exog4I2mj1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prosecution under the Seeds Act, 1966. Defeating right of accused to get seed re-assessed by the Central Seed Laboratory renders the prosecution illegal and unsustainable. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Rafel Del Riyo vs The State of Karnataka&nbsp;<br></span><b>Criminal Petition 102512 of 2021 decided on 8 February 2022</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The petitioner in this petition calls in question the proceedings in C.C.No.7/2021, pending before the Senior&nbsp; Civil Judge &amp; JMFC, Byadgi, Haveri District for offences punishable under Section 6(a) read with Section 19(a) of the Seeds Act, 1966&nbsp;</b><b><br></b></p><p><b>9. I have given my anxious consideration to the submissions made by the learned senior counsel and the learned High Court Government Pleader and have perused the material on record. In furtherance whereof, the following points arise for my consideration:</b></p><p><b>(i) Whether the complaint was maintainable without the Company being made an accused in the proceedings?</b></p><p><b>(ii) Whether the entire proceedings get vitiated on account of prejudice and violation of Section 16 of the Act?</b></p><p><b>11. It is not in dispute that the petitioner is the Managing Director of Syngenta India Limited which is a Company registered under the Companies Act, 1956. The entire proceedings are initiated for offences punishable under Sections 6(a) and 19(a) of the Act&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 6 deals with the minimum limit of germination and purity with respect to any seed of any notified kind or variety. Section 19 deals with penalty. Section 19(a) directs any person indulging in acts contrary to any provisions of the Act or the Rules would become liable for prosecution under the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Act. Section 21 deals with offences by companies. Therefore, the directors of the Company are also held to be vicariously liable and become liable to be proceeded against and punished.&nbsp;</b></p><p><b>12. It is not in dispute that the Company is not made a party in these proceedings which is in violation of Section 21 (supra). The proceedings without, at the outset, the Company being made a party would not be maintainable. The issue in this regard need not detain this Court for long&nbsp; or&nbsp; delve deeper in to the matter as identical provisions of the Negotiable Instruments Act, 1881 have been interpreted by the Apex Court&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">...Therefore, the entire proceedings would stand vitiated as the complaint itself, without at the outset the company being made a party, would not be maintainable. Therefore, I answer the point arising in favour of the petitioner.</b></p><p><b>Whether<span style=\"white-space:pre\">	</span>the<span style=\"white-space:pre\">	</span>entire proceedings get vitiated on account of prejudice and violation of Section 16 of the Act</b></p><p><b>14. Seeds were collected from a dealer by the complainant. The dealer is accused No.3. The sample was collected or seized on 12-11-2020. The sample collected was sent to the Analyst at the Seed Examination Centre in the Department of Agriculture, Government of Karnataka. The sample that was sent by the complainant was received by the Seed Analyst on 13-11-2020 as could be seen from the documents appended to the petition. The Seed Analyst submits his report on 4-12-2020 opining that germination of the seed was at 81% as against the prescribed germination in terms of Section 6 of the Act at 98.6%. The Seed Analyst declared the seed to be “sub standard”.</b></p><p><b>15. The seed that was taken during the search was manufactured on 19-05-2020. The shelf life of that particular seed was to expire on 18-02-2021. If the said Analyst had submitted his report on 04-12-2020, nothing stopped the respondent/complainant to take further proceedings in accordance with law. After the life of the seed expired on 18- 02-2021, a show cause notice is issued to the Company to show cause as to why proceedings should not be initiated for sub-standard quality of the seed. After issuing a show cause notice, a complaint is registered by the respondent/ complainant invoking Section 19 of the Act before the learned Magistrate at Byadagi and the learned Magistrate takes cognizance of the offence.</b></p><p><b>16. It is now germane to notice the report of the Seed Analyst and its aftermath. Section 14 of the Act deals with powers of the Seed Inspector and Section 15 deals with the procedure to be followed by the Seed Inspector. Therefore,&nbsp; the power of seizure is available under Section 14 to a Seed Inspector and the procedure to be followed after such seizure is dealt with under Section 15.</b></p><p><b>17. In terms of Section 16, the Seed Analyst shall as soon as possible on receipt of sample prepare a report of the sample and furnish the same to the Seed Inspector and another copy thereof to the person from whom the sample was taken. Sub-section (2) of Section 16 grants liberty to the accused after institution of the prosecution under the Act, on payment of a prescribed fee, to make an application to the Court for sending any of the sample to a Central Seed Laboratory for its report and on receipt of such application, the Court will ascertain the mark and seal or fastening and may then despatch the sample under its own seal to the Central Seed Laboratory. The purport of sub-section (2) of Section 16 is, after institution of the prosecution the accused will have liberty to get the sample verified and tested for the second time by the Central Seed Laboratory, which would be&nbsp; a second opinion, resulting in vindication of the stand of the prosecution or the accused. Therefore, sub-section (2) of Section 16 assumes great significance, as it can either&nbsp; save&nbsp; the accused from the prosecution or result in the prosecution continuing with the trial.</b></p><p><b>18. It is germane to consider the dates noticed hereinabove. The date of collection of sample is 12-11-2020. The Seed Analyst gave his report on 4-12-2020. The life&nbsp; of&nbsp; the seed was till 18-02-2021. All these are undisputed facts. After the life of the seed itself had expired by the time prosecution was launched which was on 16-03-2021&nbsp; the&nbsp; right of the accused to get the seed re-assessed&nbsp; by&nbsp; the&nbsp; Central Seed Laboratory under sub-section (2) of Section 16 is rendered illusory. An important right of the accused is taken away by the callous action on the part of the prosecution. If the life of the seed had expired, the seed cannot be sent for a second opinion by the Central Seed Laboratory. It ought to have been done prior to the expiry of life of the seed. Therefore, taking away the right under sub- section (2) of Section 16 has caused great prejudice to the petitioner or even the Company against whom the notice is issued.</b></p><p><b>19. It is trite law that procedural violation causing prejudice will have to be construed strictly and it cannot be said that trial should continue notwithstanding the right under sub-section (2) of Section 16 being taken away by indolence of the respondent/complainant.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Apex Court in the afore-extracted judgment was interpreting Insecticides Act, 1968 , provisions of which are&nbsp; in pari materia with that of the Seeds Act. The&nbsp; Apex Court&nbsp; has clearly held that the right of the accused to get&nbsp; the&nbsp; sample tested again, a right that is conferred under the Insecticides Act gets deprived if the proceedings are not initiated without any loss of time. The Apex Court further holds that the accused had been deprived a valuable right statutorily available to him and order obliteration of criminal proceedings against the accused therein.&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the light of the facts obtaining as afore-narrated and the judgments of the Apex Court extracted hereinabove, both&nbsp; with regard to the Company not being made a party and the entire proceedings getting vitiated on account of prejudice being caused to the accused, in my considered view, this is a fit case where this Court has to exercise&nbsp; its&nbsp; jurisdiction&nbsp; under Section 482 of the Cr.P.C. and obliterate the proceedings against the petitioner, failing which such proceedings would become an abuse of the process of the law and result in miscarriage of justice.</b></p><p><b>20. Before parting with the case, it may not be inapt, to observe that plethora of cases are brought before the Court, like the case at hand, wherein prosecution is launched after, either the period of limitation is over or where the right of the accused available in the statute gets extinguished, by sheer inaction on the part of the respective departments. The Apex Criminal law is set in motion by the departments particularly empowered to launch prosecution against the violators of the provisions of the respective enactments, as a matter of&nbsp; course, as is done in the case at hand. It&nbsp; is&nbsp; therefore, the head of such Departments should endeavour to put their house in order and direct the officers empowered to initiate&nbsp; or launch prosecution, if they chose to do so, to do&nbsp; so&nbsp; without any loss of time, as&nbsp; “administrative&nbsp; indolence cannot be and should not be countenanced”.</b></p><p><b>21. For the aforesaid reasons, I pass the following:</b></p><p><b>O R D E&nbsp; R</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Criminal Petition is allowed.</b><br></p><p><br></p>', 'efe49ed442e705cd1d0a8b2c6375e484.jpg', '1a9620c8e98ec99f8c4e5de5e9849024.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-12', 1, '', '', '2022-02-13 05:05:20', '2022-02-13 05:05:20'),
(1325, 'clYESDfPbkh4PVdzr7UG1aciv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Insurance Company can NOT repudiate claim merely on the ground of delay in intimating the Insurance Company about the occurrence of the theft. Supreme Court. ', '<p><b>Jaina Constructions Company vs The Oriental Insurance Company Limited and another&nbsp;<br>Civil Appeal 1069 of 2022 decided on 11 February 2022<br>Justice Sanjiv Khanna and Justice Bela M. Trivedi</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgement Link:<a href=\"https://main.sci.gov.in/supremecourt/2018/26033/26033_2018_45_1501_33331_Judgement_11-Feb-2022.pdf\" target=\"_blank\">&nbsp;https://main.sci.gov.in/supremecourt/2018/26033/26033_2018_45_1501_33331_Judgement_11-Feb-2022.pdf</a></b><b><br></b></p><p><b>1. The present appeal is directed against the impugned order dated 9\r\nth\r\nSeptember, 2016 passed by the National Consumer Disputes Redressal\r\nCommission, New Delhi (hereinafter referred to as “the NCDRC”) in\r\nRevision Petition No. 1104 of 2016 whereby the NCDRC while allowing\r\nthe said Revision Petition filed by Respondent No. 1-Insurance Company,\r\nhas set aside the order dated 16th December, 2015 passed by the State\r\nConsumer Disputes Redressal, Commission, Haryana at Panchkula and&nbsp;the order dated 26th February, 2015 passed by the District Consumer\r\nDisputes Redressal Forum, Gurgaon.\r\n</b></p><p><b>3. The precise question that falls for consideration before this Court is -\r\nwhether the Insurance Company could repudiate the claim in toto, made\r\nby the owner of the vehicle, which was duly insured with the insurance\r\ncompany, in case of loss of the vehicle due to theft, merely on the ground\r\nthat there was a delay in informing the company regarding the theft of\r\nvehicle?&nbsp;<br></b></p><p><b>9. In the opinion of the Court the afore-stated ratio of the judgment clinches\r\nthe issue involved in the case on hand. In the instant case also, the FIR\r\nwas lodged immediately on the next day of the occurrence of theft of the\r\nvehicle by the complainant. The accused were also arrested and chargesheeted, however, the vehicle could not be traced out. Of course, it is true\r\nthat there was a delay of about five months on the part of the complainant&nbsp;in informing and lodging its claim before the Insurance Company,\r\nnonetheless, it is pertinent to note that the Insurance Company has not\r\nrepudiated the claim on the ground that it was not genuine. It has\r\nrepudiated only on the ground of delay. When the complainant had lodged\r\nthe FIR immediately after the theft of the vehicle, and when the police\r\nafter the investigation had arrested the accused and also filed challan\r\nbefore the concerned Court, and when the claim of the insured was not\r\nfound to be not genuine, the Insurance Company could not have\r\nrepudiated the claim merely on the ground that there was a delay in\r\nintimating the Insurance Company about the occurrence of the theft. </b></p><p><b>10. In that view of the matter, the Court is of the opinion that the NCDRC\r\nshould not have set aside the orders of the District Forum and the State\r\nCommission by holding that the repudiation of the insurance claim by the\r\ninsurance company was justified. The impugned order being erroneous\r\nand against the settled position of law, deserves to be set aside, and is set\r\naside, accordingly.\r\n</b></p><p><b>11. The appeal is allowed, affirming the order of the State Commission&nbsp;</b><br></p>', '2c6c787418dfc49e25ffacd2cdea7a7b.jpeg', '7a03fb81bfaa3b30d68ce54165e5c7a4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-13', 1, '', '', '2022-02-13 16:10:41', '2022-02-13 16:10:41'),
(1327, 'lNhHXoNEtXgEupdMhdjKEeMr8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Court can NOT direct the authorities to acquire land reserved in the development plan for a particular purpose and to pay compensation to landowners when the reservation has lapsed. Supreme Court  ', '<p><b>The Kolhapur Municipal Corporation &amp; Ors vs&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Vasant Mahadev Patil</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;<br></span>Civil Appeal 501 of 2022 decided on 14 February 2022<br>Justice M.R. Shah and Justice B.V. Nagarathna&nbsp;</b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/7075/7075_2019_42_1501_33363_Judgement_14-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/7075/7075_2019_42_1501_33363_Judgement_14-Feb-2022.pdf&nbsp;</a></span><br></b></p><p><b>6. The short question which is posed for the consideration of this\r\nCourt is:\r\nWhether a writ of Mandamus can be issued by the High Court in\r\nexercise of powers under Article 226 of the Constitution of India\r\ndirecting the authority/Municipal Corporation to acquire the land\r\nreserved for a particular purpose and to pay the compensation to&nbsp;the original landowners despite the fact that the reservation is\r\ndeemed to have lapsed in view of the statutory provisions and that\r\nthe land which is directed to be acquired and for which the\r\ncompensation is directed to be paid to the original landowners is\r\nunsuitable and unusable for the purposes for which it is reserved?<br></b></p><p><b>9.4 In the present case, even according to the Corporation, the land in\r\nquestion is not at all suitable and even usable for the purposes for which\r\nit is reserved, i.e., for public purposes like parking, garden etc., as the\r\nsaid land is a flood affected and a rivulet named ‘Jayanti Nala’ passes\r\nthrough the said area under reservation. It was also the case on behalf\r\nof the Corporation before the High Court and even before this Court that\r\nthe reserved area is coming within High Flood Line and every year for a\r\nperiod of fifteen days to one month, the said area gets flooded during\r\nrainy season and that it will be necessary to carry out the required\r\ndevelopment work at a huge cost upon the said reserved land for making&nbsp;it suitable for public purposes as per reservation. It was/is the specific\r\ncase on behalf of the Corporation that if the said development is not\r\ndone, the land under reservation cannot be able to be utilized for the\r\npurposes for which it is reserved. If that be so, we fail to understand\r\nwhat the reason was for the Planning Authority to designate such a land\r\nfor a public purpose and/or to reserve the land in question in the\r\nDevelopment Plan for a public purpose and thereafter to acquire and pay\r\nthe compensation if the said land was not at all suitable and/or usable.&nbsp;</b></p><p><b>9.5 As observed hereinabove, at the time of preparing the\r\nDevelopment Plan and keeping a particular land reserved for a particular\r\npublic purpose, an important duty is cast upon the Planning Authority to\r\nfirst satisfy that the land reserved which thereafter has to be acquired on\r\npayment of compensation is very much suitable and usable for that\r\npublic purpose. In the instant case, how the area, which is a flood\r\naffected area and through which a rivulet named ‘Jayanti Nala’ passes\r\ncan be kept under reservation for a particular public purpose and can be\r\nused for public purposes like parking and/or for widening of the road\r\netc.? Therefore, while preparing the Development Plan and reserving\r\nand/or designating a particular land for a particular public purpose, great\r\ncare and caution is to be exercised by the Planning Authority. As per\r\nSection 125 of the Act, any land required, reserved or designated in a\r\nDevelopment plan or Town Planning Scheme for a public purpose or purposes including plans for any area of comprehensive development or\r\nfor any new town shall be deemed to be land needed for a public\r\npurpose within the meaning of the Land Acquisition Act, 1894. Hence,\r\nall the parameters concerning the suitability of the land for the particular\r\npublic purpose for which the land is to be reserved and acquired for\r\nutilization must be borne in mind as a factor of paramount importance.&nbsp;<br></b></p><p><b>11. Thus, as per the law laid down by this Court in the aforesaid three\r\ndecisions, if the land reserved under the draft Development\r\nPlan/Development Plan is not acquired within a period of ten years form\r\nthe date of final Development Plan and thereafter after expiry of ten\r\nyears, the landowners serve a purchase notice and thereafter within a\r\nperiod of one year, no steps are taken to acquire the land, the\r\nreservation/allocation is deemed to have lapsed and the land stand\r\nreleased from such reservation/allocation. As held above, declaration\r\nunder Section 6 of the Act of 1894 can be said to be taking steps as\r\ncontemplated under Section 127 of the MRTP Act. After the enactment\r\nof the Act of 2013, the declaration under Section 6 of the Act of 1894 is\r\nnow to be read and/or is substituted by declaration under Section 19 of\r\nthe Act of 2013. Therefore, if within a period of one year from the date of\r\nreceipt of purchase notice as per Section 127, a declaration under\r\nSection 19 of the Act, 2013 is not issued and the land is not acquired,\r\nthe reservation/allocation under the Development Plan is deemed to\r\nhave lapsed and the land is released from such reservation/allocation.</b></p><p><b>Therefore, once the reservation of land under the Development\r\nPlan is deemed to have lapsed by operation of law and it is released\r\nfrom reservation, no writ of Mandamus could have been issued by the\r\nHigh Court directing the Corporation to still acquire the land and to issue\r\na declaration under Section 19 of the Act of 2013 (as in the meantime,\r\nthe Land Acquisition Act, 1894 has been repealed and Act of 2013 has\r\nbeen enacted). Once by operation of law, the reservation is deemed to\r\nhave lapsed, it is lapsed for all purposes and for all times to come.</b></p><p><b>13. Now, so far as the observation made by the High Court that after\r\nthe reservation is deemed to have lapsed, it has not been notified in the\r\nOfficial Gazette as required under Section 127(2) of the MRTP Act is\r\nconcerned, we observe that notification in the Official Gazette is only a\r\nconsequential act and it has nothing to do with the actual lapsing of\r\nreservation by operation of law as the reservation is deemed to have\r\nlapsed under Section 127(1). Thereafter issuance of the notification of\r\nlapse of the reservation of land is only a procedural act and nonissuance of such a notification in the Official Gazette with respect to\r\nlapse of the reservation, allocation or designation would not affect the\r\nlapse of the reservation under Section 127(1) of the MRTP Act.\r\n</b></p><p><b>18. In view of the above and for the reasons stated above, the present\r\nappeal succeeds. The impugned judgment and order passed by the\r\nHigh Court directing the appellant Corporation to issue a declaration\r\nunder Section 19 of the Act of 2013 and consequently to acquire the\r\n48\r\nland in question and to pay the compensation to the respondents –\r\noriginal landowners as per the provisions of Act of 2013 is hereby\r\nquashed and set aside. Consequently, the original Writ Petition (Writ\r\nPetition No.5310 of 2018) before the High Court filed on behalf of the\r\noriginal landowners stand dismissed. &nbsp;</b><br></p>', 'e027012ad6906e9cba15ea904867078b.JPG', 'd74ce14109c47015568891a527a34321.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-14', 1, '', '', '2022-02-15 04:14:08', '2022-02-15 04:14:08'),
(1328, 'FDwLiUGobDO5Wh4KoqlZFmRb0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Limitation period extended by the Supreme Court applies for filing written statement before the Commercial Courts and even in cases where the delay is otherwise not condonable. Supreme Court. ', '<p><b>Prakash Corporates vs Dee Vee Projects Limited&nbsp;<br>Civil Appeal 1318 of 2022 decided on 14 February 2022<br>Justice Dinesh Maheshwari and Justice Vikram Nath.&nbsp;</b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/19909/19909_2021_44_1501_33366_Judgement_14-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/19909/19909_2021_44_1501_33366_Judgement_14-Feb-2022.pdf</a></span><br></b></p><p><b>2. By way of this appeal, the appellant has challenged the order\r\ndated 09.07.2021, as passed by the High Court of Chhattisgarh at\r\nBilaspur in WP No. 312 of 2021, whereby the High Court has upheld the\r\norder dated 22.06.2021, as passed by the Commercial Court (District\r\nLevel), Nava Raipur, Chhattisgarh in Civil Suit No. 01-B of 2021, in\r\ndeclining the prayer of the defendant-appellant for granting further time to\r\nfile its written statement. The prayer of the defendant-appellant came to\r\nbe declined on the ground that in view of the proviso to Order VIII Rule 1\r\nof the Code of Civil Procedure, 19081\r\n, as substituted by the Commercial\r\nCourts Act, 20152\r\n, such a right of the defendant to file the written\r\nstatement stood forfeited with expiry of 120 days from the date of service\r\nof summons.<br></b></p><p><b>20.1. Having regard to the purpose for which this Court had exercised\r\nthe plenary powers under Article 142 of the Constitution of India and\r\nissued necessary orders from time to time in SMWP No. 3 of 2020, we\r\nare clearly of the view that the period envisaged finally in the order dated\r\n23.09.2021 is required to be excluded in computing the period of\r\nlimitation even for filing the written statement and even in cases where\r\nthe delay is otherwise not condonable. It gets perforce reiterated that the\r\norders in SMWP No. 3 of 2020 were of extraordinary measures in\r\nextraordinary circumstances and their operation cannot be curtailed with\r\nreference to the ordinary operation of law.</b></p><p><b>27. For what has been discussed hereinabove, we are unable to\r\napprove the order dated 22.06.2021 as passed by the Trial Court and the\r\norder dated 09.07.2021 as passed by the High Court. In our view, the\r\nwritten statement already prepared and notarised by the defendantappellant deserves to be taken on record and the Trial Court deserves to\r\nbe directed to proceed with the matter in accordance with law thereafter;\r\nand for that matter, to deal with the pending applications without further\r\ndelay.&nbsp;</b><br></p>', 'a9eb85b79c0cd9778c64390449bfbca5.JPG', '12842b535b743f06c37597cba1ae145c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-14', 1, '', '', '2022-02-15 04:32:58', '2022-02-15 04:32:58'),
(1329, 'LUk3jLI4ox8RD1JdPJWVz0vuP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Education. Though admission deadline is inviolable if the authority extends it, admission of students beyond deadline is valid. Karnataka High Court. ', '<p><b>Preeti Naik and others vs The State of Karnataka and others </b></p><p><b>Writ Petition 35139 of 2019 decided on 4 February 2022</b></p><p><b>Justice Alok Aradhe and Justice M.G.S. Kamal</b></p><p><b>1.In this writ petition, the petitioners seek a direction to Dental Council of India to approve the admission of the petitioners to the BDS Course in Government Dental College, Bangalore for the academic session 2016-17. The petitioner seeks a writ of certiorari for quashment of order dated 10.04.2019, by which the Dental Council of India addressed a communication to the College, by which it has been apprised that petitioners were admitted after the cut off date to the BDS Course for the academic session 2016-17, therefore, all the State Dental Councils / Tribunal have been directed not to register the names of the petitioners.</b></p><p><b>6. We have considered the submissions made on both sides and have perused the record. From perusal of the admission order issued to the petitioners, it is evident that the petitioners have been admitted to Dental course in Government Dental College, Bangalore on 07.10.2016. The petitioner Nos.1 and 3 have even paid the fee on 07.10.2016 itself, whereas, the petitioner No.2 has paid the fee on 08.10.2016. However, the fact remains that petitioners have been admitted to the course on 07.10.2016. From the communication dated 06.10.2016 sent by the Director, Medical Education to the Executive Director, Karnataka Examination Authority, it is evident that only the students who were allotted the seats on 07.10.2016 were permitted to pay the admission fee on 08.10.2016. In the instant case, the petitioners were admitted to the course on 07.10.2016. It is not in dispute that petitioners have been admitted to the course as per their merit. It is also pertinent to note that the Director, Medical Education by a communication dated 09.01.2019 had also apprised the Dental Council of India that the petitioners were admitted to the course on 07.10.2016.</b></p><p><b>7. Thus, it is evident that the petitioners were admitted to the course within the prescribed time scheduled i.e., on 07.10.2016. Therefore, the decision of the Supreme Court in Mridul Dhar and another vs Union of India and others (2005) 2 SCC 65 has no application to the fact situation of the case as the time line prescribed therein has not been violated. The Dental Council of India has issued the impugned communication on the assumption that the petitioners have been admitted beyond the cut off date. The impugned communication issued dated 10.04.2019 issued by Dental Council of India is hereby quashed. Since, the petitioners have already completed the course and their results have already been declared therefore, no further direction needs to be issued.</b></p><p><b>In the result, the writ petition is allowed. </b></p><div><br></div>', '01f776e95da1cb42b20d2a929268d8fb.JPG', '1dd9769036b939b310ce702576e3ee49.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-15', 1, '', '', '2022-02-15 19:42:28', '2022-02-15 19:54:24'),
(1330, 'sATrlPE49W1vRxjbJ1IOg63EG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Continuous refusal to cohabitate with husband amounts to desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955. Supreme Court. ', '<p><b>Debananda Tamuli vs Kakumoni Kataky<br>Civil Appeal 1339 of 2022 decided on 15 February 2022&nbsp;<br>Justice Ajay Rastogi and Justice Abhay S Oka.&nbsp;<br></b></p><p><b>Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/32916/32916_2019_13_1501_33466_Judgement_15-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/32916/32916_2019_13_1501_33466_Judgement_15-Feb-2022.pdf</a><br></b></p><p><b>1. This appeal arises from a matrimonial dispute between the\r\nappellant-husband and the respondent-wife. The petition filed by\r\nthe appellant-husband on the grounds of cruelty and desertion set\r\nout in clauses (ia) and (ib) of sub-section (1) of Section 13 of the\r\nHindu Marriage Act, 1955 ( for short “HM Act”) was dismissed by\r\nthe District Court. By the impugned order, the appeal preferred by\r\nthe appellant against the decree of the District Court has been\r\ndismissed by the Gauhati High Court.&nbsp;&nbsp;<br></b></p><p><b>11. Merely because on account of the death of the appellant’s\r\nmother, the respondent visited her matrimonial home in December\r\n2009 and stayed there only for one day, it cannot be said that there\r\nwas a resumption of cohabitation. She has not stated that she\r\ncame to her matrimonial home on 21st December 2009 with the\r\nintention to resume cohabitation. The intention on the part of the\r\nrespondent to resume cohabitation is not established. Thus, in the\r\nfacts of the case, the factum of separation has been proved. From&nbsp;the evidence on record, an inference can be drawn that there was\r\nanimus deserendi on the part of the respondent. She has not\r\npleaded and established any reasonable cause for remaining away\r\nfrom her matrimonial home. <br></b></p><p><b>12. Thus, in our considered view, the ground of desertion under\r\nclause (ib) of sub-section (1) of Section 13 of HM Act has been\r\nmade out as the desertion for a continuous period of more than two\r\nyears before the institution of the petition was established in the\r\nfacts of the case. But, after having carefully perused the evidence\r\non record, we find that no case is made out to disturb the findings\r\nrecorded by the Courts on the issue of cruelty.&nbsp;<br></b></p><p><b>14. Hence, the impugned judgments are set aside. The Civil\r\nAppeal is allowed in part. The marriage solemnized between the\r\nparties on 17th June 2009 shall stand dissolved by a decree of\r\ndivorce under clause (ib) of sub-section (1) of Section 13 of the\r\nHindu Marriage Act, 1955.<br></b></p><p><b><br></b></p><p><br></p>', '055cd2b660079b7d832cf1e48e0c10c9.jpg', 'bba9b7e47f2e5ca4978fad915fa50e2b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-15', 1, '', '', '2022-02-16 02:22:00', '2022-02-16 02:22:00'),
(1331, 'gZeUGT7o3ig8p2wuWUtS939ev', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Education. \'\'On account of the pandemic, one cannot give up maintaining standards of education\'\'. Karnataka High Court while rejecting plea of law students to dispense with exams. ', '<p><b>Karnataka State Law University vs Mahantesh and others<br>Writ Appeal 100319 of 2021 decided on 15 February 2022<br>Justice S.G.Pandit and Justice Anant Ramanath Hegde.&nbsp;</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The question as to whether 2nd and 4th semester students of the three years’ LL.B degree course of the appellant-Karnataka State Law University could be promoted to next semester without conducting any examination or evaluation is for consideration in this appeal</b><br></p><p><b>Thus in substance, the prayer is to conduct the evaluation based on internal assessment Or in the alternative, to postpone the examination scheduled in October 2021 and to afford sufficient time for the students to prepare for the examination. The relief granted in the impugned order is neither of the above prayers. In terms of the impugned order, there is a direction to promote the students of the 2nd and 4th semesters without conducting any kind of examination or evaluation.</b></p><p><b>3. Today’s Law students are the pillars of tomorrow’s legal system including justice delivery system. Keeping this in mind, the question framed above is to be considered.</b></p><p><b>6. The petitioners had contended in the aforesaid writ petition that Notification under challenge with regard to the conduct of examination to the intermediate semester students is arbitrary and violative of Articles 14 and 21 of the Constitution of India, for the reason that no proper education was imparted and imbibed to the students. The contention is raised on the premise that classes are not properly conducted on the prescribed syllabus during the Covid-19 pandemic due to lockdown. Thus, conducting the examination without proper coaching would be arbitrary.&nbsp;</b></p><p><b>7. The learned Single Judge on considering the rival contentions of the parties under the impugned order, quashed the Notification under challenge and directed the 2nd respondent/University to promote the petitioners to next semester in the light of the order passed by this Court in WP No.14389/2020, dated 8.2.2021. Assailing the said order, the 2nd respondent/University is in appeal before this Court under Section 4 of the High Court of Karnataka Act, 1961.</b></p><p><b>14. As stated above, in view of the stand taken by the respondents-students, the only question&nbsp; which requires to be answered is as to whether the Law students of 3 years’ LL.B course are to be promoted to the next semester based on internal evaluation?</b></p><p><b>15. Our answer to the above point is in the negative for the following reasons:</b></p><p><b>16. The development of a good legal system depends upon qualitative legal education imparted through various legal institutions and universities. Qualitative legal education is to be imparted to the students of the law taking into account the needs of the society with the changing times. The legal system of a county is a part of its social system and it reflects on social, political, economic and cultural characteristics of that society. Legal education is the foundation for the development of rule of law. The legal profession is not just about practising in courts, but within its sphere includes law teaching, law&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">research, administration, commercial and industrial activity, which requires legal knowledge and skill. The system of legal education should inspire confidence in the general public. Barring a few law schools and a few colleges affiliated with universities, the standard of legal education is found wanting.</b></p><p><b>19. No doubt, mankind is in a precarious situation due to the Covid-19 pandemic since the beginning of the year 2020. Due to the Covid-19 pandemic, intermittently there was lockdown, halting the global activities and normal human life. The field of education is the most affected area during the pandemic. However, when it comes to evaluating the performance of the students studying in professional courses and when it comes to certifying the students’ eligibility to next semester, evaluation is not to be abandoned altogether. The students studying in professional courses have greater responsibility and need to possess the requisite skill required for their calling. The relaxation shown in non-professional streams cannot be shown here especially in the technical field like law, medicine and engineering.&nbsp; Furthermore, on account of the pandemic, one cannot give up&nbsp; maintaining standards of education.</b></p><p><b>ORDER</b></p><p><b>a) Writ Appeal is allowed;</b></p><p><b>b) The order dated 14.12.2021 passed in WP No.104008/2021 by the learned Single Judge of this Court is set aside;</b></p><p><b>c) Respondent No.2/University is directed to&nbsp; determine&nbsp; the&nbsp; mode&nbsp; of examination&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">i.e. Online/Offline/Blended/Online Open Book Exam(OBE)/Assignment Based Evaluation (ABE)/Research papers, as suggested by the BCI under its press release dated 10.6.2021 (Annexure-H)&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and other relevant documents within ten&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(10) days from the date of web hosting the present order;</b></p><p><b>d) Consequent to taking a decision as directed above, respondent/University to take steps forthwith to complete the process of examination/evaluation of the students of 2nd and 4th semester of three years’ LL.B Course;</b></p><p><b>e) Respondent No.2/University shall ensure, the time gap prescribed under the rules&nbsp; if any, for conducting of examinations/evaluation;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Pending applications, if any, do not survive for consideration, and accordingly, they are disposed of.</b></p><div><br></div>', 'b569ac41aea3ea36cc08a5433cae1103.JPG', 'a7a71a74c2eb3de0747b28b0d1d99b59.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-15', 1, '', '', '2022-02-16 02:59:42', '2022-02-16 02:59:42'),
(1332, 'VSOMq1h2zg2FMAmFeav0saZDS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Games of skill involve elements of expression and enjoy protection under Article 19(1)(a). State cannot criminalize online games involving skill. Karnataka High Court ', '<p><span style=\"font-weight: 700;\">All India Gaming Federation vs State of Karnataka and another <br>Writ Petition 18703 of 2021 and connected matters decided on 14 February 2022<br>Chief Justice Ritu Raj Awasthi and Justice Krishna S Dixit</span></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The tickling tone for this judgment can be&nbsp; set by what Lord Denning had humoured in TOTE INVESTORS LTD. vs. SMOKER1: “...The defendant has in the past occasionally had a wager on a horse-race. Today she has been taking part in another game of chance or skill – the game of litigation...”</b><span style=\"font-weight: 700;\"><br></span></p><p><b>All these petitions by the companies &amp; individuals involving substantially similar questions of law &amp; facts seek to lay a challenge to the validity of the Karnataka Act&nbsp; No.28&nbsp; of&nbsp; 2021&nbsp; (hereafter&nbsp; ‘Amendment&nbsp; Act’)&nbsp; whereby the&nbsp; Karnataka&nbsp; Police&nbsp; Act,&nbsp; 1963&nbsp; (hereafter&nbsp; ‘Principal&nbsp; Act’) has been amended; the cumulative effect of these amendments, according to them, is the criminalization of&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">playing or facilitating online games. After&nbsp; service&nbsp; of notice, the respondents having entered&nbsp; appearance&nbsp; through the learned Advocate General have filed their common Statement of Objections and Addl. Statement of Objections resisting the challenge.</b></p><p><b>(g) The Amendment Act puts games of skill and games of chance on par, when they are poles asunder, in the light of obtaining jurisprudence. The games of skill, in addition to being a type of expression, are entitled to protection under Article 19(1)(g) by virtue of their recognition as business. There are competing interests&nbsp; of State and the individual, which need to be balanced by employing known principles such as doctrine of proportionality, least restrictive test &amp; the like. A line has to be drawn to mark the boundary between the appropriate field of individual liberty and the State action&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for the larger good ensuring the least sacrifice from the competing claimants. As already mentioned above, the Amendment Act puts an absolute embargo on the games of skill involving money or stakes. Learned Advocate General contended that the State was not in a position to apply&nbsp; the&nbsp; ‘least&nbsp; restrictive&nbsp; test’&nbsp; and&nbsp; that&nbsp; the&nbsp; prohibition being the objective of the Amendment Act, there is no scope for invoking the said test at all. This amounts to throwing the baby with bath water.</b></p><p><b>(h) In a progressive society like ours, imposing an absolute embargo, by any yardstick appears to be too excessive a restriction. In such cases, a heavy burden rests on the State to justify such an extreme measure, as rightly contended by the petitioners. There is no material placed on record to demonstrate that State whilst enacting such an extreme measure, has considered the feasibility of regulating wagering on games of skill. If the objective is to curb the menace of gambling, the State should prohibit activities which amount to gambling as such and not the games of skill&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which are distinct, in terms of content and produce. The State action suffers from the vice of paternalism&nbsp; since there is excessive restriction on the citizens freedom of contract. However, the ground of&nbsp; legislative&nbsp; populism&nbsp; does not avail against the plenary power of legislation. It has long been settled that the motive of the legislature in passing a legislation is beyond&nbsp; the&nbsp; scrutiny of&nbsp; courts</b></p><p><b>(i) A mere likelihood or propensity of misuse of online gaming platforms, without anything more, does not constitute a legal justification for the banning of commercial activities.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The games of skill as we have reasoned out above involve elements of expression and therefore enjoy regulatable protection under Article 19(1)(a); it has long been settled that these games apparently having business characteristics are protected under Article 19(1)(g). Therefore the above observations in Indian Express equally apply to the case of petitioners. However, the Amendment Act does not critically adjust the boundaries of existing category of protected activities i.e., games of skill with the unprotected acts of gambling. Instead, State has created a wholly new category of medium- based-regulation when change of medium per&nbsp; se&nbsp; does not alter the true nature &amp; content of the games.&nbsp;</b></p><p><b>In the above circumstances, these writ petitions succeed:</b></p><p><b>1. The provisions of Sections 2, 3, 6, 8 &amp; 9 of the Karnataka Police (Amendment) Act 2021&nbsp; i.e.,&nbsp; Karnataka Act No.28 of 2021 are declared to be ultra vires the Constitution of India in their entirety and accordingly are struck down.</b></p><p><b>2. The consequences of striking down of the subject provisions of the Karnataka Police (Amendment) Act 2021 i.e., Karnataka Act No.28 of 2021 shall follow. However, nothing in this judgment shall be construed to prevent an appropriate legislation being brought about&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">concerning the subject i.e., ‘Betting &amp; gambling’ in accordance with provisions of the Constitution.</b></p><p><b>3.A Writ of Mandamus is issued restraining the respondents from interfering with the online gaming business and allied activities of the petitioners.</b></p><div><br></div>', 'a21ee2eb4efa354e089508a62d760229.JPG', '093f8678755c2f6ab39486378d5b7914.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-15', 1, '', '', '2022-02-16 04:16:25', '2022-02-16 04:16:25'),
(1333, 'XsnVYVIDLEHNcAEs6HL4Ei0Kd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prevention of Corruption Act, 1988. Amended Section 19 is retrospective in operation and previous sanction for prosecution of retired public servant necessary even prior to the amendment. Karnataka High Court.', '<p><span style=\"font-weight: bolder;\">State of Karnataka by Lokayukta Police vs Dr. V.Chandrashekhar,&nbsp;<br></span><b>Criminal Revision Petition 790 of 2015 decided on 9 February 2022<br></b></p><p><b><br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Karnataka Lokayukta being the petitioner has questioned&nbsp; the correctness&nbsp; of&nbsp; the&nbsp; order&nbsp; dated 2.6 .2015 passed on an application filed under section 19 of the Prevention of Corruption Act in Special Case 44/2014 on the file of&nbsp; Principal Sessions Judge and Special Judge, Bengaluru Rural District.&nbsp;</b><b><br></b></p><p><b>7. The arguments give rise to a question whether it was not necessary&nbsp; to&nbsp; obtain&nbsp; sanction&nbsp; for prosecution of the respondent for the offence under section 13 (1)(e) read with Section 13( 2) of Prevention of Corruption Act in view of his retirement from service.&nbsp;</b></p><p><b>8. The trial court has&nbsp; referred to&nbsp; decisions of the Supreme Court in STATE OF HIMACHAL PRADESH VS. NISHANT SAREEN (AIR 2011 SC&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">404) and CHITTARANJAN DAS VS. STATE OF ORISSA (AIR 2011 SC 2893). In all these&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">decisions the principle laid down is that&nbsp; the sanction to prosecute public servant, if&nbsp; once refused by a competent authority, it cannot be reviewed to reconsider the&nbsp; grant&nbsp; of&nbsp; sanction unless fresh materials to prove the guilt of the&nbsp; public servant are available. It is held that in the case on hand fresh material was not available as against the respondent and therefore Lokayukta Police was not justified in filing the charge sheet against the respondent only on the ground that as&nbsp; on the date of filing of charge sheet he had retired from service.</b></p><p><b>9. The impugned order has actually&nbsp; not dealt with the question whether sanction is necessary or not once a public servant retires from service.&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Of the many judgments that&nbsp; Sri B.S.Prasad has relied upon, only one judgment of&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Supreme Court in the case of R.S.NAYAK Vs. A.R.ANTULAY (AIR 1984 SC 684), deals with&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">this question and it is&nbsp; held&nbsp; there that no&nbsp; sanction is necessary for taking cognizance of the offence under the provisions of Prevention&nbsp; of&nbsp; Corruption&nbsp; Act once a public servant retires. The&nbsp; other judgment he relied upon is in the case of DR. JAGMITTAR SAIN BHAGAT Vs. DIRECTOR, HEALTH&nbsp; &nbsp;SERVICES,&nbsp; &nbsp;HARYANA&nbsp; &nbsp;AND&nbsp; &nbsp;OTHERS&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">[AIR 2013 SC 3060] where it is held that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court,&nbsp; and&nbsp; if&nbsp; the&nbsp; Court passes a decree saying there is no&nbsp; jurisdiction over the matter, it would amount to nullity as it goes to roots of the cause. It is quite clear that this decision has been relied upon by Sri B.S.Prasad in support of his argument&nbsp; that&nbsp; the State Government actually was not the competent authority to&nbsp; grant or&nbsp; reject the&nbsp; sanction&nbsp; in respect</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;of the respondent and therefore the order dated 06.07.2012 rejecting the sanction is of no consequence. This position is not disputable. The respondent was an IAS officer and that the competent authority was the Central Government and as per the submission made by the counsel for Lokayukta during&nbsp; the&nbsp; proceedings&nbsp; in&nbsp; WP No.15687 /2013, steps had been&nbsp; taken&nbsp; for obtaining sanction from the Central&nbsp; Government, but it&nbsp; is&nbsp; not in&nbsp; dispute that such a&nbsp; sanction was&nbsp; not obtained as by that time, the respondent had superannuated.&nbsp;</b></p><p><b>14. Therefore it is clear that the amended Section makes it very clear that sanction is necessary not only for subjecting a public servant while in service (or who is in service) but also a public servant who has retired from service ( who was in service). This amendment is by way of substitution, and it takes effect from the&nbsp; inception in the sense it must be understood as if the substituted provision is there from the&nbsp; day&nbsp; when the law was enacted.&nbsp;&nbsp;</b></p><p><b>15. Thus seen, it may be stated that the amendment brought to Section 19&nbsp; of&nbsp; the Prevention of Corruption Act by&nbsp; Act No.16 of&nbsp; 2018&nbsp; is to be understood as if&nbsp; it&nbsp; came into effect from&nbsp; the date the Prevention of Corruption Act was first given into effect i.e., from 09.09.1988 . This being the change in law, definitely the respondent can contend that he cannot be prosecuted without sanction and his retirement from service does not make any difference in the matter of obtaining sanction.</b></p><p><br></p>', '8cbb49905d743d0812db164551020b7e.jpg', 'ee0febd4ddccd4e82f3a7b9efed7c55f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-16', 1, '', '', '2022-02-17 02:52:24', '2022-02-17 02:52:24');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1334, 'GW9AdL4U6ANC0hJgiwCwcfdgm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sale of mortgaged property. Bank has to act fairly and all efforts should be made to get the best price for the mortgaged property. Supreme Court. ', '<p style=\"text-align: justify; \"><font face=\"Verdana\"><span style=\"font-size: 13px;\"><b>&nbsp;J. Rajiv Subramaniyan v. Pandiyas, (2014) 5 SCC 651 : (2014) 3 SCC (Civ) 295 : 2014 SCC OnLine SC 237 at page 657</b></span></font></p><p style=\"text-align: justify; \"><font face=\"Verdana\"><span style=\"font-size: 13px;\"><b>18. It must be emphasised that generally proceedings under the Sarfaesi Act, 2002 against the borrowers are initiated only when the borrower is in dire straits. The provisions of the Sarfaesi Act, 2002 and the 2002 Rules have been enacted to ensure that the secured asset is not sold for a song. It is expected that all the banks and financial institutions which resort to the extreme measures under the Sarfaesi Act, 2002 for sale of the secured assets to ensure that such sale of the asset provides maximum benefit to the borrower by the sale of such asset. Therefore, the secured creditors are expected to take bona fide measures to ensure that there is maximum yield from such secured assets for the borrowers. In the present case, Mr Dhruv Mehta has pointed out that sale consideration is only Rs 10,000 over the reserve price whereas the property was worth much more. It is not necessary for us to go into this question as, in our opinion, the sale is null and void being in violation of the provision of Section 13 of the Sarfaesi Act, 2002 and Rules 8 and 9 of the 2002 Rules.</b></span></font></p>', '9a17ddfd284fc3a78a28cd75c92c6da8.JPG', 'f895352300c81b224dbafa51f377c164.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-16', 1, '', '', '2022-02-17 03:31:20', '2022-02-17 03:31:20'),
(1335, 'DFRyM66MmfQ5vdlnDiGvxWVMI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Candidate indicating preference for particular service as per clear instructions can NOT claim other post even though he secured more marks in the other service. Supreme Court. ', '<p><b>Union of India vs probir Ghosh and others. <br>Civil Appeal 4585 of 2018 decided on 17 February 2022<br>Justice <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Hemant Gupta and Justice </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">V. Ramasubramanian</span></b></p><p><b>Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2017/743/743_2017_11_1501_33435_Judgement_17-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2017/743/743_2017_11_1501_33435_Judgement_17-Feb-2022.pdf</a></b></p><p><b>32. The question that is common to the appeal arising out of the judgment of the Gauhati High Court and the appeals arising out of the Delhi High Court is whether candidates who have indicated  preference   for   a   particular   service  can be kept out of consideration  for  appointment  to   other  services,  despite such candidates   having   secured  more marks than the selected candidates in those other services.</b></p><p><b>33. In   Column   No.16   under   paragraph   4.0   of   Annexure­II, which is the brochure containing instructions for filling up the application,  candidates  were  called upon  to   carefully indicate preference for the post under different Forces. It was also made clear that option once exercised will be final and that no change will be allowed thereafter. </b></p><p><b>35. What the Staff Selection Commission did was, to confine the  consideration of candidates who indicated preference only to one service, to that service only. Candidates who indicated multiple preferences were considered for all those services and depending upon the cut off marks, they were allotted to any one of the services.</b></p><p><b>36. Unfortunately, the respondents in these appeals indicated preference only to one service. They did not secure more than or equal to the cut­off mark for that service in the category to which they   belonged.   It   is   true   that   candidates   who   secured   lesser marks   than   these   respondents   have   been   selected   in   other services, but it was because of the expression of their openness for appointment to any service, even at the time of submitting the application. The respondents have become wiser after the event.</b></p><p><b>37. The High Court proceeded on the basis that the candidates cannot   be   pinned   down   to   the   preference   indicated   in   the application form and that appointing persons who secured lesser marks and rejecting those who secured higher marks on this ground, would be violative of Article 14 of the Constitution.</b></p><p><b>38. In   doing   so,   the   High   Court   clearly   overlooked   Column No.16 under paragraph 4 of Annexure­II, to the Notification.  This is clearly erroneous.</b></p><p><b>39. However,   the   learned   counsel   for   the   respondents   relied upon a decision of the Division Bench of the Patna High Court in Ram   Bilash   Ram  vs.  State   of   Bihar   and   others 1986 SCC OnLine Pat 268 and   the decision of the Allahabad High Court in Bindhyachal  Kumar Singh vs. Union of India and others 2013 SCC OnLine All 9828.  </b></p><p><b>40. In  Ram   Bilash   Ram  (supra),   the   High   Court   of   Patna interpreted the word “preference” to mean a mere indication of a choice and held that the same cannot be taken to indicate the rejection of other options. But in paragraph 12 of the said decision itself, the High Court made it clear that “it would have been a different matter had there been a rule or instruction to the contrary”. In the case on hand the instructions were very clear and hence the decision of the Patna High Court will not apply.</b></p><p><b>42. As   a   matter   of   fact,   a   similar   question   came   up   for consideration before this Court in  Union  of   India  vs.  M.V.V.S Murthy (1987) Supp.SCC 371.   The   candidate   in   that   case   preferred   Indian Administrative Service in the Civil Services Examination, 1983. He was actually selected for IPS. He did not accept it but chose to appear for the next year Examination. When he could not make it in the next year examination, he gave a representation seeking at least to be allotted to IPS for the CSE ‘83 batch on the ground that candidates who had secured lesser marks than him have been allotted to IPS in CSE 1983. When it was not accepted, he approached the court, but this Court rejected his claim. </b></p><p><b>44. Therefore, the High Court was clearly wrong in granting relief   to   the   respondents  (i)  by   diluting   the   significance   of preferences given by candidates; and (ii) in nullifying the effect of the instructions contained in Column No.16 of paragraph 4 of Annexure­II to the Recruitment Notification.</b></p><p><br></p>', '7da584a18dbde83324b2eaeabf7e1703.jpeg', '2021aa4788b2993e14efdfda0b6d2894.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-17', 1, '', '', '2022-02-18 02:12:00', '2022-02-18 02:12:48'),
(1336, 'h7v4WHyCdBxMhBRlzwDkGj8ej', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Managing Director of a television network can NOT be criminally held liable for the objectionable contents aired by the employees of the television network. Karnataka High Court.  ', '<p><span style=\"font-weight: bolder;\">Rajeev Chandraskekhar vs K. Koteswar Rao. <br>Criminal Petition 101127 of 2015 decided on 17 February 2022</span></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The petitioner is before this Court calling in question the proceedings in C.C.No.1243 of 2012 initiated against him for offences punishable under Sections 499 and 500 of the Indian Penal Code. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The petitioner, at the relevant point in time, was functioning as a Managing Director of Suvarna News 24/7 Kannada Television Channel. A complaint came to be registered against the petitioner and several others on 14-03-2012 on an </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">incident that happened on 02-03-2012. It transpires that one of the prominent personalities was being brought before the competent criminal Court at Bangalore, at which point in time, Advocates gathered in large numbers and created ruckus. This was telecast in television and electronic media, more  particularly, in the channel in which the petitioner was the Managing Director along with other channels as breaking news wherein the Advocates were allegedly compared to  hooligans. The petitioner was accused of airing certain programmes allegedly portraying community of Advocates at large as rowdies, vagabonds, scoundrels and goondas. On the said incident a complaint of mass defamation was registered by the respondent one Sri K.Koteswar Rao by invoking Section 200 of the Cr.P.C. before the competent Court at Bellary. On the complaint being registered, cognizance was taken for the aforesaid offence punishable under Sections 499 and 500 of the IPC on 15-03- 2012. Pursuant to taking of cognizance, the Police investigated into the matter and criminal trial is set in motion by an order of the competent Court dated 01-09-2012. On issuance of process </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in C.C.No.1243 of 2012 and conduct of trial, the petitioner has knocked the doors of this Court in the subject petition.</b><span style=\"font-weight: bolder;\"><br></span></p><p><b>8. I have given my anxious consideration to the submissions made by the respective learned senior counsel and perused the material on record. In furtherance whereof, the following points arise for my consideration:</b></p><p><b>(i)<span style=\"white-space:pre\">	</span>Whether the complaint was maintainable against the petitioner without arraigning the company as an accused?</b></p><p><b>(ii)<span style=\"white-space:pre\">	</span>Whether the order issuing process is in violation of Section 202 of the Cr.P.C?</b></p><p><b>(iii)<span style=\"white-space:pre\">	</span>Whether the order setting the criminal trial in motion under Section 204 of the Cr.P.C. does bear existence of sufficient ground?</b></p><p><b>(iv)<span style=\"white-space:pre\">	</span>Whether there can be defamation of an indeterminate group?</b></p><p><b>11.<span style=\"white-space:pre\">	</span>The submission of the learned senior counsel representing the respondent that for the acts of the company the petitioner would become vicariously liable, is unacceptable, as there cannot be vicarious liability in criminal law under the Indian Penal Code. ....</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">On the bedrock of the aforesaid law laid down by the  Apex  Court, if the facts obtaining in the case at hand are noticed, it would become unmistakably clear that the very complaint was not maintainable as it is blatantly obvious that there is no allegation against the petitioner that he was privy to the publication of such imputation or that he was directly responsible for publication or airing of the incident as alleged. The Managing Director is supposed to have control over the management of the television channel and its financial aspects; he cannot be seen to be directly concerned with the airing of the news items except when there are no materials to draw such conclusion that the Managing Director was also privy to the airing of the said news. The petitioner could not have been roped in for having committed the  offence under Sections 499 and  500   of the IPC.12.<span style=\"white-space:pre\">	</span>As held by the Apex Court, the principle of vicarious liability is not applicable to criminal offences in the absence of any provision laid down in the statute. The statute applicable in the case at hand is the Act or the IPC. The Managing Director thus cannot be held to be vicariously liable for the  acts committed by the Company or its employees merely because he happens to be the Managing Director of the TV news channel. Therefore, the first point that has arisen for consideration is answered against the prosecution holding that complaint itself was not maintainable against the petitioner</b></p><div><br></div>', 'b533bf2fdd8fdb4e2f3fabf529ac31c7.jpg', '5efd3e473364396e358f7198a61f414a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-19', 1, '', '', '2022-02-20 03:34:31', '2022-02-20 03:35:26'),
(1337, 'YmOMfGElrtxamrssp2cpITXpu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal defamation. Defaming an indefinite class of people can NOT lead to the offence punishable under Section 500 Indian Penal Code. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Rajeev Chandrasekar vs K. Koteswar Rao. <br>Criminal Petition 101127 of 2015 decided on 17 February 2022</span></p><p><span style=\"font-weight: bolder;\"><br></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The petitioner is before this Court calling in question the proceedings in C.C.No.1243 of 2012 initiated against him for offences punishable under Sections 499 and 500 of the Indian Penal Code.</b><span style=\"font-weight: bolder;\"><br></span></p><p><b>The petitioner, at the relevant point in time, was functioning as a Managing Director of Suvarna News 24/7 Kannada Television Channel. A complaint came to be registered against the petitioner and several others on 14-03-2012 on an&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">incident that happened on 02-03-2012. It transpires that one of the prominent personalities was being brought before the competent criminal Court at Bangalore, at which point in time, Advocates gathered in large numbers and created ruckus. This was telecast in television and electronic media, more&nbsp; particularly, in the channel in which the petitioner was the Managing Director along with other channels as breaking news wherein the Advocates were allegedly compared to&nbsp; hooligans. The petitioner was accused of airing certain programmes allegedly portraying community of Advocates at large as rowdies, vagabonds, scoundrels and goondas. On the said incident a complaint of mass defamation was registered by the respondent one Sri K.Koteswar Rao by invoking Section 200 of the Cr.P.C. before the competent Court at Bellary. On the complaint being registered, cognizance was taken for the aforesaid offence punishable under Sections 499 and 500 of the IPC on 15-03- 2012. Pursuant to taking of cognizance, the Police investigated into the matter and criminal trial is set in motion by an order of the competent Court dated 01-09-2012. On issuance of process&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in C.C.No.1243 of 2012 and conduct of trial, the petitioner has knocked the doors of this Court in the subject petition.</b></p><p><b>8. I have given my anxious consideration to the submissions made by the respective learned senior counsel and perused the material on record. In furtherance whereof, the following points arise for my consideration:</b></p><p><b>(i)<span style=\"white-space:pre\">	</span>Whether the complaint was maintainable against the petitioner without arraigning the company as an accused?</b></p><p><b>(ii)<span style=\"white-space:pre\">	</span>Whether the order issuing process is in violation of Section 202 of the Cr.P.C?</b></p><p><b>(iii)<span style=\"white-space:pre\">	</span>Whether the order setting the criminal trial in motion under Section 204 of the Cr.P.C. does bear existence of sufficient ground?</b></p><p><b>(iv)<span style=\"white-space:pre\">	</span>Whether there can be defamation of an indeterminate group?</b></p><p><b>Point No.(iv): Whether there can be defamation of an indeterminate group?</b></p><p><b>16.<span style=\"white-space:pre\">	</span>The incident triggered registration of a complaint was airing of news on the television channel which did not happen only on Suvarna News but on several television channels. The statement of defamation according to the complaint made in the news channel was referring to the Advocates “Goondas, Hooligans, Scoundrels and Rowdies“. It is not the allegation that&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was defaming a particular person but defaming an indefinite class. It is not defaming a definite association but an indefinite mass.&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 499 carries along with it certain explanations. Explanation 2 quoted (supra) with emphasis depicts that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. It would have been a circumstance altogether different if Section&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">499 did not carry this explanation. The explanation further qualifies Section 499 to be defamation against a company or an association or collection of persons as such. Therefore, it is a definite group of people and not indefinite group of people. Further airing of news with regard to Advocates being described as aforesaid would not amount to defamation as it is made against an indefinite class of people. It is neither made against the association nor a definite collection of persons.</b></p><p><b>17. Therefore, Explanation-2 saves the act of defamation under Section 499 insofar as the case at hand is concerned. The legal position with regard to such defamation has emerged in Courts of England in certain judgments rendered by their law Lords. The celebrated judgment in the case of EASTWOOD v.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">HOLMES – (1858)&nbsp; 1&nbsp; F&nbsp; &amp;&nbsp; F&nbsp; 347 wherein the House of Lords was considering a statement in the press quoting as “all lawyers were thieves”.&nbsp; It&nbsp; was&nbsp; held&nbsp; therein&nbsp; that&nbsp; unless&nbsp; there&nbsp; is something to point to a particular individual, in the opinion of the Court,&nbsp; it&nbsp; would&nbsp; not amount to&nbsp; defamation.&nbsp; This&nbsp; is subsequently followed and affirmed by another judgment of House of Lords in the case of KNUPFFER v. LONDON EXPRESS NEWS PAPER LIMITED – 1944 Appeal Cases 116&nbsp;</b></p><p><b>Therefore, this is a case where not a definite class of people is alleged to be defamed but an indefinite class. The very concept of defaming an indefinite class cannot lead to the offence punishable under Section 500 of the IPC as the purport of Section 499 and the Explanation is that it should be against a definite class of people. Section 199 of the Cr.P.C. deals with prosecution for defamation as Chapter XXI of the IPC concerns defamation and mandates that no Court shall take cognizance of an offence punishable under Chapter XXI of the Code except upon a complaint made&nbsp; &nbsp;by some “person aggrieved” of the offence. Some personaggrieved of the offence assumes significance as it would depict particular person or persons. A definite collection of persons is an expression which will not relate to huge mass of people, such&nbsp; a construction cannot be rendered to either Section 499 or Explanation-2 to Section 499. Therefore, in the light of preceding analysis on point No.4, I am of the considered view that the statements made would not amount to defamation as obtaining under Sections 499 and 500 of the IPC. The very substratum of the offence gets vanished and, therefore, no purpose would be served by remitting the matter to the hands of the learned Magistrate to consider the issue from the stage of compliance with Section 202. Hence, point No.4 arising is also answered against the prosecution.</b></p><p><br></p>', 'b5b8a7a540da0fd6303e079730413451.jpg', '633ee9da6527085a9f131d0477b9d9a8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-19', 1, '', '', '2022-02-20 03:50:18', '2022-02-20 03:50:18'),
(1338, 'VX4lUGDXDdM7LgTqzw8d6ddA9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Live Band license. Condition imposing a gender cap as to the number of women or men who can perform in orchestras and bands in live band bars violates Article 14. Supreme Court ', '<p><b>Hotel Priya vs State of Maharashtra and others. <br>Civil Appeal arising out of SLP (C) 13764 OF 2012&nbsp;</b><br><b>Justice K.M. Joseph and Justice S. Ravindra Bhat.&nbsp;</b></p><p><b>Judgement Link: https://main.sci.gov.in/supremecourt/2011/24758/24758_2011_46_1502_33528_Judgement_18-Feb-2022.pdf<br></b></p><p><b>2. The appellants are either owners or are operating restaurants and bars with the\r\nrequisite licenses/permissions. Orchestra performances are a common feature in their\r\npremises. They, hence, go by the appellation “Orchestra Bars”. For this feature, they\r\nare required to secure Premises and Performance licenses under Licensing and\r\nPerformance for Public Amusement including Cabaret Performance, Melas and\r\nTamashas Rule, 1960 (hereafter “Rules, 1960”) framed under the Maharashtra Police\r\nAct, 1951 (hereafter “Act, 1951”). The Commissioner of Police, Brihan Mumbai,\r\nexercising powers under Section 33 (1) (w)(i) and (w)(ii), Section 162(1) of Act,\r\n1951 read with Rule 108A, 109, 118, 207 and 209 of the Rules, 1960, by orders dated\r\n12.09.2009 in additional to the existing conditions mentioned in the Premises\r\nLicense, added several conditions. Certain conditions were challenged by the\r\npetitioners in W.P No. 7962/2010 and connected matters. However, at the stage of\r\nhearing,&nbsp;the challenge was confined to the following conditions:\r\n(1) The licensee is permitted to keep only four women singers/artists and four\r\nmale singers/artists to remain present on permitted stage.\r\n(2) Only eight artists are permitted to remain present on the permitted stage (four\r\nmale and four women).</b></p><p><b>3. Before the High Court, the appellants had contended that identification of\r\nparticular number of artists or imposing any restrictions on the number of artists,\r\nwhether male or female, has no bases either in Act, 1951 or Rules, 1960 and violates\r\nArticle 14 and Article 19(1)(g) of the Constitution of India.\r\n</b></p><p><b>4. The High Court repelled the challenge to the conditions imposed by the\r\nCommissioner, holding that the power to impose them was traceable to provisions of\r\nthe Act, 1951, and rules framed under it. It was also held that the commissioner was\r\ngranted liberty to issue such conditions as were essential, for the operation of the\r\norchestra bars. The High Court, therefore, rejected the writ petitions, holding that the\r\nCommissioner acted well within the power to impose such conditions.&nbsp;\r\n<br></b></p><p><b>31. It is apparent from the above discussion that the power of the state to regulate\r\nhas not been disputed. However, what is in issue, is whether the restriction imposed\r\nthrough conditions of license, are impermissible because they are not part of the rules\r\nor have not been enacted in any provision of law, and whether the conditions are\r\nviolative of Articles 14 and 19 (1) (g) of the Constitution of India.</b></p><p><b>32. In the previous decisions of this court, the issue decided was whether a total\r\nban on dancing in bars was justified, and whether it violated Articles 14 and 19 (1)\r\n(g) of the Constitution of India. The issue in IHRA-I was the validity of Sections 33A\r\nand 33B of the Act, 1951. This court rejected two submissions of the state: one, that\r\nthere was a reasonable classification between establishments that were three star and\r\nabove rating hotels and restaurants, where dancing was permitted in bars, and others,\r\nbecause of the nature of their likely clientele; and two, that the women who\r\nperformed as dancers, were from deprived backgrounds and susceptible to\r\nexploitation.&nbsp;</b></p><p><b>36. The court clarified that if any performance amounted to obscenity, it would be\r\npunishable under law (Section 294, Indian Penal Code and in addition, Section 8 (2)\r\nof the Act of 2016). It also observed that the term “obscenity” is known to law.\r\nFurthermore, any premises which permitted obscene shows ran the risk of losing its\r\nlicense:\r\n“However, even if licence is obtained, that would not mean that place can be used\r\nfor obscene dance performances or for exploiting working women for any\r\nimmoral purpose. It is these acts which are made punishable under sub-section\r\n(2). In this manner, the offence under Section 8 (2) is somewhat different from the\r\noffence that is stipulated in Section 294 IPC.”&nbsp;<br></b></p><p><b>37. The court, in IHRA-III then proceeded to consider the challenge to conditions,\r\nwhich prohibited throwing currency notes and coins, or showering them, on the\r\nperformers; the condition also required that any tip offered to the performers, should\r\nbe included in the bill of the establishment. The court held that throwing or\r\nshowering monies was not a desirable practice; at the same time, the imposition on\r\nthe performers to forgo tips meant for them, was held to be invalid.&nbsp;<br></b></p><p><b>38. Other conditions, such as stipulations that the establishments should be located at\r\nleast a kilometer away from religious and educational institutions, the safety of their\r\nstructures, inspection of the premises by engineers, and other regulatory conditions were\r\nconsidered. These included the size of the stage, its area, etc. The court was of the\r\nopinion that such regulations were unexceptionable. However, the court’s conclusion in\r\nrespect of one condition i.e., that alcohol could not be served in the area where\r\nperformances were held, was that such a condition was unreasonable.</b></p><p><b>39. It is thus clear that each of the arguments which the state is relying on, were\r\nconsidered in the context of challenge to statutory prohibitions, as well as license\r\nconditions. The arguments advanced in the present case, that the restrictions are\r\nnecessary in the public interest, to promote the welfare of women, prevent human\r\ntrafficking in women, and their exploitation, and that the restrictions are necessary in\r\nthe interest of public morals, are well worn, and have been decisively rejected. Apart\r\nfrom regurgitating the same rejected submissions, the state has not justified,\r\nindependently, how the gender-cap, as for an individual orchestra or band, is\r\nregulatory.&nbsp;<br></b></p><p><b>46. The justification provided by the respondents, to sustain the restriction, in so\r\nfar as they claim to protect the women, in the opinion of this court, lay it open to the\r\ncharge of entombing their aspirations. In case there were any real concern for the\r\nsafety of women, the state is under a duty - as highlighted by Anuj Garg, to create\r\nsituations conducive to their working, to run that extra mile to facilitate their\r\nemployment, rather than to thwart it, and stifle their choice. Such measures – which\r\nclaim protection, in reality are destructive of Article 15 (3) as they masquerade as&nbsp;special provisions and operate to limit or exclude altogether women’s choice of their\r\navocation. \r\n&nbsp;<br></b></p><p><b>47. As far as the question whether a condition entrenched in a law or a rule, goes,\r\nthe previous judgments of this court in Bijoe Emmanuel (supra), Naveen Jindal\r\n(supra), were cited by the appellants. In the present case, the regulation on the overall\r\nnumber of performers, or even the dimensions of a stage (on which a performance\r\ncan take place) cannot be characterized as a restriction; they can fall within the\r\nlegitimate domain of the authority of the commissioner or the government which\r\nformulates such conditions. In view of this court’s conclusion and findings that the\r\nrestriction is upon the gender, in the sense that it seeks to cap the number of\r\nperformers on the basis of gender. This restriction directly transgresses Article 15 (1)\r\nand Article 19 (1) (g)- the latter provision both in its effect to the performers as well\r\nas the license owners. In view of these findings, this court is of the opinion that it is\r\nunnecessary to address the question as to whether the condition imposed- and held to\r\nbe unenforceable and void, is “law\"&nbsp;<br></b></p><p><b>&nbsp;48. As the authorities of this court have repeatedly emphasized, whenever\r\nchallenges arise, particularly based on gender, it is the task of the judges to scrutinize\r\nclosely, whether, if and the extent to which the impugned practices or rules or norms\r\nare rooted in historical prejudice, gender stereotypes and paternalism. Such attitudes\r\nhave no place in our society; recent developments have highlighted areas hitherto\r\nconsidered exclusive male “bastions” such as employment in the armed forces, are no\r\nlonger so. Similarly, in the present case, this court holds that the gender cap imposed\r\nby the impugned condition is void. One hopes that the present judgment would still a\r\nlingering and discordant note of a cymbal silenced long back, by previous judgments\r\nof this court.</b></p><p><b> 49. For the foregoing reasons, the impugned judgment is hereby set aside. It is\r\nhereby declared that the condition imposing a gender cap as to the number of women\r\nor men, who can perform in orchestras and bands, in bars licensed under the Rules,\r\n1960 and other allied provisions, is void. While the overall limit of performers in any&nbsp;given performance cannot exceed eight, the composition (i.e., all female, majority\r\nfemale or male, or vice versa) can be of any combination. The appeals are allowed,\r\nbut with no order on costs. </b><br></p>', 'add86e87f535797645c61c7bf82c3de8.jpg', 'eedf04e8d3ffae16d2a5a61131acaf38.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-19', 1, '', '', '2022-02-20 04:18:52', '2022-02-20 04:18:52'),
(1339, '3SxsAAbjdwg8YXTDhcHvWMqk1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sale pursuant to a public auction can NOT be set aside at the instance of strangers unless there is concrete material on fraud and/or collusion or the property is sold at a throw away price. Supreme Court. ', '<p><b>K. Kumara Gupta vs Sri Markendaya and\r\nSri Omkareswara Swamy Temple &amp; Ors.<br>Civil Appeal 791-792 of 2022 decided on 18 February 2022<br>Justice M.R. Shah and Justice B.V. Nagarathna</b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2019/42885/42885_2019_42_1501_33515_Judgement_18-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/42885/42885_2019_42_1501_33515_Judgement_18-Feb-2022.pdf</a></span><br></b></p><p><b>8.1 Once the appellant was found to be the highest bidder in a public\r\nauction in which 45 persons had participated and thereafter when the\r\nsale was confirmed in his favour and even the sale deed was executed,\r\nunless and until it was found that there was any material irregularity\r\nand/or illegality in holding the public auction and/or auction/sale was\r\nvitiated by any fraud or collusion, it is not open to set aside the auction\r\nor sale in favour of a highest bidder on the basis of some\r\nrepresentations made by third parties, who did not even participate in the\r\nauction proceedings and did not make any offer. In this context, we rely\r\non the following observations of this Court in the case of Jasbhai\r\nMotibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Ors.,(1976) 1 SCC 671 made in paragraphs 34, 37 and 49, which are as\r\nunder:-\r\n“34. This Court has laid down in a number of decisions\r\nthat in order to have the locus siandi to invoke the&nbsp;should ordinarily be one who has a personal or individual\r\nright in the subject-matter of the application, though in the\r\ncase of some of the writs like habeas corpus or quo\r\nwarranto this rule is relaxed or modified. In other words,\r\nas a general rule, infringement of some legal right or\r\nprejudice to some legal interest inhering in the petitioner\r\nis necessary to give him a locus standi in the matter,\r\n(see State of Orissa v. Madan Gopal Rungta [AIR 1952\r\nSC 12 ]; Calcutta Gas Co. v. State of W.B. [AIR 1962 SC\r\n1044]; Ram Umeshwari Suthoo v. Member, Board of\r\nRevenue, Orissa [(1967) 1 SCA 413]; Gadde\r\nVenkateswara Rao v. Government of A.P. [AIR 1966 SC\r\n828]; State of Orissa v. Rajasaheb Chandanmall [(1973) 3\r\nSCC 739]; Satyanarayana Sinha Dr v. S. Lal &amp;\r\nCo. [(1973) 2 SCC 696] )...In the aforesaid decision, it was also observed that despite\r\nadequate opportunity, if a person has not lodged any objection at an\r\nappropriate stage and time, he could not be said to have been in fact,\r\ngrieved<br></b></p><p><b>8.2 It is also required to be noted that the sale was confirmed in favour\r\nof the appellant by the Commissioner, Endowments Department after\r\nobtaining the report of the Assistant Commissioner. Therefore, we are of\r\nthe opinion that in the aforesaid facts and circumstances of the case, the\r\nHigh Court ought not to have ordered re-auction of the land in question\r\nafter a period of 23 years of confirmation of the sale and execution of the\r\nsale deed in favour of the auction purchaser by observing that the value\r\nof the property might have been much more, otherwise, the object and\r\npurpose of holding the public auction and the sanctity of the public\r\nauction will be frustrated. Unless there is concrete material and it is\r\nestablished that there was any fraud and/or collusion or the land in&nbsp;question was sold at a throw away price, the sale pursuant to the public\r\nauction cannot be set aside at the instance of strangers to the auction\r\nproceeding. The sale pursuant to the public auction can be set aside in\r\nan eventuality where it is found on the basis of material on record that\r\nthe property had been sold away at a throw away price and/or on a\r\nwholly inadequate consideration because of the fraud and/or collusion\r\nand/or after any material irregularity and/or illegality is found in\r\nconducing/holding the public auction. After the public auction is held and\r\nthe highest bid is received and the property is sold in a public auction in\r\nfavour of a highest bidder, such a sale cannot be set aside on the basis\r\nof some offer made by third parties subsequently and that too when they\r\ndid not participate in the auction proceedings and made any offer and/or\r\nthe offer is made only for the sake of making it and without any serious\r\nintent. In the present case, as observed hereinabove, though Shri Jagat\r\nKumar immediately after finalising the auction stated that he is ready and\r\nwilling to pay a higher price, however, subsequently, he backed out. If\r\nthe auction/sale pursuant to the public auction is set aside on the basis\r\nof the such frivolous and irresponsible representations made by such\r\npersons then the sanctity of a public auction would be frustrated and the&nbsp;rights of a genuine bidder would be adversely affected.<br></b></p><p><b>8.5 At the cost of repetition, it is observed that as such there was no\r\nmaterial available with the Division Bench to the effect that the valuation\r\nof the property in the year 1998 was much more and that the highest bid\r\nof the appellant was for a lesser consideration than the actual value of\r\nthe land.<br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '46ee86ac9ed2b5b2471e42ef3ef811e2.JPG', 'e76f74f0ebbbffa7ff2a3ce3ab99608f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-19', 1, '', '', '2022-02-20 04:47:45', '2022-02-20 04:47:45'),
(1340, 'WO6WvjDP1w5XWaYaSL1dl2znR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Damages in lieu of specific performance can NOT be granted in the absence of specific prayer for damages in the plaint. Supreme Court reiterates.  ', '<p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Universal Petro Chemicals Ltd vs B. P. PLC and Others&nbsp;<br></span>Civil Appeal 3127 of 2009 decided on 18 February 2022<br>Justice L. Nageswara Rao and Justice B.R. Gavai.&nbsp;</b><b><br></b></p><p><b>Judgement Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2008/14753/14753_2008_35_1501_33529_Judgement_18-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2008/14753/14753_2008_35_1501_33529_Judgement_18-Feb-2022.pdf</a></b></p><p><b>1. The Appellant – Universal Petro-Chemicals Ltd. in Civil\r\nAppeal No.3127 of 2009 (for the sake of convenience,\r\nhereinafter referred to as ‘the Appellant’) filed a suit for\r\nspecific performance of a collaboration agreement dated\r\n01.11.1994 as modified by the supplementary agreements\r\ndated 01.03.1995 and 27.12.2002. The Plaintiff further\r\nprayed for a declaration of perpetual injunction. The learned\r\nSingle Judge of the High Court of Calcutta refused to grant a&nbsp;decree of specific performance of the agreement. However,\r\na decree of injunction as prayed for was granted. Aggrieved\r\nthereby, the Appellant had filed an appeal questioning the\r\njudgment of the learned Single Judge to the extent that no\r\nrelief was granted. The Appeal was dismissed by a Division\r\nBench of the High Court of Calcutta by a judgment dated\r\n18.02.2008 which is impugned in the Civil Appeal No.3127 of\r\n2009. Respondent No.3 – Aral Aktiengesellschaft in Civil\r\nAppeal No.3127 of 2009 has also filed an appeal against the\r\njudgment of the Division Bench questioning the judgment\r\nrelating to the perpetual injunction granted in favour of the\r\nAppellant. <br></b></p><p><b>21. The scope of Section 21 (4) and (5) was examined by\r\nthis Court in Shamsu Suhara Beevi v. G. Alex and\r\nAnother (2004) 8 SCC 569. This Court referred to the Law Commission\r\nof India’s recommendation that in no case the compensation\r\nshould be decreed, unless it is claimed by a proper pleading.\r\nHowever, the Law Commission was of the opinion that it\r\nshould be open to the plaintiff to seek an amendment to the\r\nplaint, at any stage of the proceedings in order to introduce a\r\nprayer for compensation, whether in lieu or in addition to\r\nspecific performance. In the said case no claim for\r\ncompensation for breach of agreement of sale was claimed\r\neither in addition to or in substitution of the performance of\r\nthe agreement. Admittedly, there was no amendment to the\r\nplaint asking for compensation either in addition or in\r\nsubstitution of the performance of an agreement of sale. In\r\nsuch background, this Court held as follows.&nbsp;the compensation under Section 21 in addition to the\r\nrelief of specific performance in the absence of prayer\r\nmade to that effect either in the plaint or by amending\r\nthe same at any later stage of the proceedings to\r\ninclude the relief of compensation in addition to the\r\nrelief of specific performance. Grant of such a relief is in\r\nthe teeth of express provisions of the statute to the\r\ncontrary is not permissible. On equitable consideration&nbsp;court cannot ignore or overlook the provisions of the\r\nstatute. Equity must yield to law.”\r\n On a careful consideration of the judgments of this Court\r\nrelied upon by learned Senior Counsel for the Appellant and\r\nthe learned counsel for the Respondents, we are of the view\r\nthat the Appellant is not entitled to claim damages for the\r\nperiod between 24.08.2005 and 31.12.2009.</b></p><p><b>22. The learned Single Judge expressly mentioned in his\r\njudgment that the Appellant did not claim any relief for\r\ndamages. Even in the appeal filed by the Appellant, no relief\r\nfor damages was claimed by the Appellants. In fact, it was a\r\nspecific submission on behalf of the Appellant before the\r\nDivision Bench that no relief in the nature of damages and/or\r\ncompensation could be granted. It was submitted that it was\r\ndifficult to quantify such damages/compensation as neither\r\nthe anticipated loss of business nor estimated value of the\r\ngoodwill could be prospectively assessed. It might be true\r\nthat the Appellant was interested in the relief of specific\r\nperformance of the Collaboration Agreement when he filed\r\nthe Special Leave Petition in 2008 as the collaboration\r\nagreement subsisted till 31.12.2009. However, even\r\nthereafter no steps were taken by the Appellant to\r\nspecifically plead the relief of damages or compensation.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The judgments relied upon by the Appellant are not\r\napplicable to the facts of this case. Though, the claim in\r\nShamsu Suhara Beevi v. G. Alex and Another&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(2004) 8 SCC 569&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">pertained to grant of compensation in addition to the relief of\r\nspecific performance, this Court considered the point relating\r\nto the relief of compensation in substitution of the\r\nperformance of the agreement as well.</span></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>23. We are afraid that the request of the Appellant for grant\r\nof damages cannot be accepted</b></span></p><p><b><br></b></p><p><br></p>', 'e2ea782126816942ca2d16ca7d7ace18.jpg', 'fa864c0faeb57c3e8aa459f2fc134502.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-19', 1, '', '', '2022-02-20 05:21:36', '2022-02-20 05:21:36'),
(1341, 'fca9rD6GhN71sJjpy8x3R2ulp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Magistrate can NOT entertain application under Section 156 (3) of the Cr.P.C. unless the complaint is supported by an affidavit. Supreme Court reiterates. ', '<p><b>Babu Venkatesh and others vs State of Karnataka and another&nbsp;<br>Criminal Appeal 252&nbsp;of 2022 decided on 18 February 2022<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice B.R.&nbsp;Gavai and Justice Krishna Murari <br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2021/5732/5732_2021_46_1501_33528_Judgement_18-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/5732/5732_2021_46_1501_33528_Judgement_18-Feb-2022.pdf</a></span></b></p><p><b>24.&nbsp; After analyzing the law as to how the power&nbsp; under Section 156 (3) of Cr.P.C. has to be exercised, this court in the case of Priyanka Srivastava and Another v. State of Uttar Pradesh and Others (2015) 6 SCC 287 has observed thus: “30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit&nbsp; &nbsp;duly&nbsp; &nbsp;sworn&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;applicant&nbsp; &nbsp;who seeks the invocation of the jurisdiction of the Magistrate.&nbsp; &nbsp;That&nbsp; &nbsp;apart,&nbsp; &nbsp;in&nbsp; &nbsp;an&nbsp; &nbsp;appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are&nbsp; &nbsp;compelled&nbsp; &nbsp;to&nbsp; &nbsp;say&nbsp; &nbsp;so&nbsp; &nbsp;as&nbsp; &nbsp;such&nbsp; &nbsp;kind&nbsp; &nbsp;of applications&nbsp; &nbsp;are&nbsp; &nbsp;being&nbsp; &nbsp;filed&nbsp; &nbsp;in&nbsp; &nbsp;a&nbsp; &nbsp;routine manner&nbsp; &nbsp;without&nbsp; &nbsp;taking&nbsp; &nbsp;any&nbsp; &nbsp;responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who&nbsp; &nbsp;are&nbsp; &nbsp;passing&nbsp; &nbsp;orders&nbsp; &nbsp;under&nbsp; &nbsp;a&nbsp; &nbsp;statutory provision which can be challenged under the framework of the said Act or under Article 226&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Constitution&nbsp; &nbsp;of&nbsp; &nbsp;India.&nbsp; &nbsp;But&nbsp; &nbsp;it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. 31. We have already indicated that there has to be prior applications under Sections 154(1) and&nbsp; &nbsp;154(3)&nbsp; &nbsp;while&nbsp; &nbsp;filing&nbsp; &nbsp;a&nbsp; &nbsp;petition&nbsp; &nbsp;under Section 156(3). Both the aspects should be clearly&nbsp; &nbsp;spelt&nbsp; &nbsp;out&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;application&nbsp; &nbsp;and necessary documents to that effect shall be filed. The warrant for giving a direction that an&nbsp; &nbsp;application&nbsp; &nbsp;under&nbsp; &nbsp;Section&nbsp; &nbsp;156(3)&nbsp; &nbsp;be supported&nbsp; &nbsp;by&nbsp; &nbsp;an&nbsp; &nbsp;affidavit&nbsp; &nbsp;is&nbsp; &nbsp;so&nbsp; &nbsp;that&nbsp; &nbsp;the person&nbsp; &nbsp;making&nbsp; &nbsp;the&nbsp; &nbsp;application&nbsp; &nbsp;should&nbsp; &nbsp;be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will&nbsp; &nbsp;deter&nbsp; &nbsp;him&nbsp; &nbsp;to&nbsp; &nbsp;casually&nbsp; &nbsp;invoke&nbsp; &nbsp;the authority&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Magistrate&nbsp; &nbsp;under&nbsp; &nbsp;Section 156(3). That apart, we have already stated that&nbsp; &nbsp;the&nbsp; &nbsp;veracity&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;same&nbsp; &nbsp;can&nbsp; &nbsp;also&nbsp; &nbsp;be verified&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;learned&nbsp; &nbsp;Magistrate,&nbsp; &nbsp;regard being had to the nature of allegations of the case. We are compelled to say so as a number of&nbsp; &nbsp;cases&nbsp; &nbsp;pertaining&nbsp; &nbsp;to&nbsp; &nbsp;fiscal&nbsp; &nbsp;sphere, matrimonial&nbsp; &nbsp;dispute/family&nbsp; &nbsp;disputes, commercial&nbsp; &nbsp;offences,&nbsp; &nbsp;medical&nbsp; &nbsp;negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal&nbsp; &nbsp;prosecution,&nbsp; &nbsp;as&nbsp; &nbsp;are&nbsp; &nbsp;illustrated in Lalita Kumari [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.”</b></p><p><b>25.&nbsp; This court has clearly held that, a stage has come where applications under Section 156 (3) of Cr.P.C. are to be supported by an affidavit duly sworn by the complainant who&nbsp; &nbsp;seeks&nbsp; &nbsp;the&nbsp; &nbsp;invocation&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;jurisdiction&nbsp; &nbsp;of&nbsp; &nbsp;the Magistrate.&nbsp;</b></p><p><b>26.&nbsp; This court further held that, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also verify the veracity of the allegations. The court has noted that, applications under Section 156 (3) of the Cr.P.C. are filed in a routine manner without taking any responsibility only to harass certain persons.&nbsp;</b></p><p><b>27.&nbsp; This court has further held that, prior to the filing of a petition under Section 156 (3) of the Cr.P.C., there have to be applications under Section 154 (1) and 154 (3) of the Cr.P.C.&nbsp; &nbsp;This&nbsp; &nbsp;court&nbsp; &nbsp;emphasizes&nbsp; &nbsp;the&nbsp; &nbsp;necessity&nbsp; &nbsp;to&nbsp; &nbsp;file&nbsp; &nbsp;an affidavit so that the persons making the application should be&nbsp; conscious&nbsp; and&nbsp; &nbsp;not&nbsp; make&nbsp; false&nbsp; affidavit.&nbsp; With&nbsp; &nbsp;such&nbsp; &nbsp;a requirement, the persons would be deterred from causally invoking authority of the Magistrate, under Section 156 (3) of the Cr.P.C. In as much as if the affidavit is found to be false,&nbsp; &nbsp;the&nbsp; &nbsp;person&nbsp; &nbsp;would&nbsp; &nbsp;be&nbsp; &nbsp;liable&nbsp; &nbsp;for&nbsp; &nbsp;prosecution&nbsp; &nbsp;in accordance with law.&nbsp;</b></p><p><b>28.&nbsp; In&nbsp; &nbsp;the&nbsp; &nbsp;present&nbsp; &nbsp;case,&nbsp; &nbsp;we&nbsp; &nbsp;find&nbsp; &nbsp;that&nbsp; &nbsp;the&nbsp; &nbsp;learned Magistrate while passing the order under Section 156 (3) of the Cr.P.C., has totally failed to consider the law laid down by this court. 29.&nbsp; From the perusal of the complaint it can be seen that, the&nbsp; &nbsp;complainant/respondent&nbsp; &nbsp;No.&nbsp; &nbsp;2&nbsp; &nbsp;himself&nbsp; &nbsp;has&nbsp; &nbsp;made averments with regard to the filing of the Original Suit. In any case, when the complaint was not supported by an affidavit, the Magistrate&nbsp; ought not to have entertained the application under Section 156 (3) of the Cr.P.C. The High Court has also failed to take into consideration the legal position as has been enunciated by this court in the case of Priyanka&nbsp; &nbsp;Srivastava&nbsp; &nbsp;v.&nbsp; &nbsp;State&nbsp; &nbsp;of&nbsp; &nbsp;U.P.&nbsp; &nbsp;(supra),&nbsp; and has dismissed the petitions by&nbsp; merely observing that serious allegations are made in the complaint&nbsp;</b></p>', 'd2c1f89ca743fbade5bf0b5f005e8e70.jpg', 'ea9af8142649a44968e6949e0f3295c5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-19', 1, '', '', '2022-02-20 05:39:24', '2022-02-20 05:39:24');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1342, 'cumw3Se54dEFR31gPUI2v4uYi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Writ petition seeking monetary relief in contractual matters is maintainable against the State where the amount is admitted and no disputed question of fact requiring adjudication of the terms of the contract involved. Allahabad High Court.', '<p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Case :- WRIT - C No. - 27869 of 2021<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Petitioner :- Kanika Construction<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Respondent :- State Of U.P. And 3 Others<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Counsel for Petitioner :- Nipun Singh,Jitendra Kumar,Vikas Tripathi,Vivek \r\nChaubey<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Counsel for Respondent :- C.S.C.<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Hon\'ble Manoj Kumar Gupta,J.\r\nHon\'ble Dr. Yogendra Kumar Srivastava,J. </span><br></b></p><p><b>9. The legal position with regard to entertainability of a writ\r\npetition in contractual matters where monetary claims are sought\r\nto be raised has been considered in extenso in a recent decision of\r\nthis court in M/S Bio Tech Systems vs. State of U.P. and Ors. 2020 (11) ADJ 488 (DB) and it was held that in a case where the contract entered into\r\nbetween the State and the person aggrieved is of a non-statutory\r\ncharacter and the relationship is governed purely in terms of a\r\ncontract between the parties, in such situations the contractual\r\nobligations are matters of private law and a writ would not lie to\r\nenforce a civil liability arising purely out of a contract, and the\r\nproper remedy in such cases would be to file a civil suit for\r\nclaiming damages, injunctions or specific performance or such\r\nappropriate reliefs in a civil court.</b></p><p><b>10. While stating the aforementioned broad proposition of law\r\nin M/S Bio Tech Systems (supra), it was also added that it cannot\r\nbe held in absolute terms that a writ petition is not maintainable in\r\nall contractual matters seeking enforcement of obligations on part\r\nof the State or its authorities. The limitation in exercising\r\npowers under Article 226 in contractual matters is essentially a\r\nself-imposed restriction. A case where the amount is admitted and\r\nthere is no disputed question of fact requiring adjudication of detailed evidence and interpretation of the terms of the contract,\r\nmay be an exception to the aforementioned general principle. </b></p><p><b>\r\n1<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1. In a given set of facts, where the State or its\r\ninstrumentalities are parties to a contract, they would be under an\r\nobligation in law to act fairly, justly and reasonably, which is the\r\nrequirement under Article 14 of the Constitution of India. In such\r\na situation where the instrumentalities of the State act unfairly,\r\nunjustifiably, unreasonably or arbitrarily in discharge of\r\ncontractual obligations, the same would be held to be violative of\r\nthe constitutional guarantee embedded in Article 14 and the\r\naggrieved party cannot be precluded from invoking the writ\r\njurisdiction under Article 226 of the Constitution of India nor the\r\ncourt would be denuded of its power of granting proper reliefs.</span></b></p><p><b>12. While considering the question with regard to\r\nmaintainability of a writ petition in such matters, it was held in\r\nABL International Ltd. And Another vs. Export Credit\r\nGuarantee Corporation of India Ltd. And Others  (2004) 3 SCC 553 that in\r\nappropriate cases, not only a writ petition against a State or\r\ninstrumentality of State arising out of contractual obligation would\r\nbe maintainable but the consequential relief of monetary claim\r\nwould also be entertainable.</b></p><p><b>16. Accordingly, a writ of mandamus is issued directing the\r\nrespondents to ensure that the amount due and payable to the\r\npetitioner is released in its favour within a period of four weeks\r\nfrom the date of receipt of a true attested copy of the instant order\r\nby the second respondent</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></p>', '67643d654513c2a300b76cc1b32f0c5e.JPG', '488a74b7165595c11ee4ed4eccd77380.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-20', 1, '', '', '2022-02-21 00:25:54', '2022-02-21 00:29:14'),
(1344, '0SaBnxxpnDTIV2v3UppQXmfGb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'The proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the Prevention of Corruption Act. Supreme Court reiterates. ', '<p><b>K. Shanthamma vs State of Telangana&nbsp;<br>Criminal Appeal 261 of 2022 decided on 21 February 2022&nbsp;<br>Justice Ajay Rastogi and Justice Abhay S. Oka.<br></b></p><p><b>Judgement Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2019/27308/27308_2019_43_1501_33555_Judgement_21-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/27308/27308_2019_43_1501_33555_Judgement_21-Feb-2022.pdf</a></b></p><p><b><br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. We have given careful consideration to the submissions.\r\nWe have perused the depositions of the prosecution witnesses.\r\nThe offence under Section 7 of the PC Act relating to public\r\nservants taking bribe requires a demand of illegal gratification\r\nand the acceptance thereof. The proof of demand of bribe by a\r\npublic servant and its acceptance by him is sine quo non for\r\nestablishing the offence under Section 7 of the PC Act. In the\r\ncase of P. Satyanarayana Murthy v. District Inspector of\r\nPolice, State of Andhra Pradesh and another&nbsp;(2015) 10 SCC 152, this Court\r\nhas summarised the well-settled law on the subject in\r\nparagraph 23 which reads thus:&nbsp;&nbsp;</span><br></b></p><p><b><i>“23. The proof of demand of illegal\r\ngratification, thus, is the gravamen of the\r\noffence under Sections 7 and 13(1)(d)(i) and (ii)\r\nof the Act and in absence thereof,\r\nunmistakably the charge therefor, would fail.\r\nMere acceptance of any amount allegedly by\r\nway of illegal gratification or recovery thereof,\r\ndehors the proof of demand, ipso facto, would\r\nthus not be sufficient to bring home the charge\r\nunder these two sections of the Act. As a\r\ncorollary, failure of the prosecution to prove\r\nthe demand for illegal gratification would be\r\nfatal and mere recovery of the amount from\r\nthe person accused of the offence under\r\nSection 7 or 13 of the Act would not entail\r\nhis conviction thereunder.”</i></b></p><p><b>15. Thus, this is a case where the demand of illegal\r\ngratification by the appellant was not proved by the\r\nprosecution. Thus, the demand which is sine quo non for\r\nestablishing the offence under Section 7 was not established.&nbsp;<br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '4da9b84e3caafc87d23fccb37740fea0.jpg', 'bebe8ff87ad46c08f9c417b374c73c78.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-21', 1, '', '', '2022-02-22 02:28:01', '2022-02-22 02:28:01'),
(1345, 'lB2AziyS6orYYnfonOOkT3kay', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Hereafter send all Government communications to citizens only by registered post acknowledgement due\'\'. Karnataka High Court directs the State Government. ', '<p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">K.M. Shivakumar vs The State of Karnataka and others. </b><br></p><p><b>Writ Petition 24201 of 2021 decided on 16 February 2022<br>Chief Justice Ritu Raj Awasthi and Justice Suraj Govindaraj. </b></p><p><b>5. We have faced the same situation in many of the matters where notices and decisions are dispatched by the respondents without any proof of receipt of the same by the petitioners. It is directed that hereafter all these kinds of communications are dispatched by registered post card acknowledgement due and the acknowledgment or postal track report along with such notices/orders relied upon by the respondents, be produced before this Court.</b></p><div><br></div>', '0bb605857a3e0972cbdaaac422d07099.JPG', '7c6f46c4835ffe4e0897d9afd7a03e92.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-21', 1, '', '', '2022-02-22 02:57:54', '2022-02-22 02:58:43'),
(1346, 'BG0aN6m6egRBdMuwu18JaC6e7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Right to freedom of expression does not grant unfettered license for every possible use of language on social media.  Government to take steps to eradicate such devastating menace. Allahabad High Court. ', '<p><b>Case :- APPLICATION U/S 482 No. - 28742 of 2021 decided on 21.02.2022<br>Applicant :- Niyaz Ahmad Khan\r\n<br>Opposite Party :- State of U.P. and Another\r\n<br>Counsel for Applicant :- Jitendra Kumar Srivastava\r\n<br>Counsel for Opposite Party :- G.A.\r\n<br>Hon\'ble Sanjay Kumar Singh,J.</b></p><p><b>1- By means of this application under Section 482 of the Code of\r\nCriminal Procedure, the applicant has invoked the inherent jurisdiction of\r\nthis Court for quashing the charge-sheet dated 27.01.2020 arising out of\r\nCase Crime No. 296 of 2019, cognizance/summoning order dated\r\n22.07.2020 and proceedings of Criminal Case No. 2887 of 2020 (State\r\nVs. Niyaz Ahmad Khan), under Section 67 Information Technology\r\n(Amendment) Act, 2008 and Section 500 IPC, Police Station Mehndawal,\r\nDistrict Sant Kabir Nagar pending in the court of Additional Chief\r\nJudicial Magistrate, Sant Kabir Nagar.</b></p><p><b>(5.5) Mr. Manish\r\nGoyal, learned Additional Advocate General in support of his\r\nsubmissions, placed reliance on the following judgments, Nikhil Racheti Vs. State of Maharastra, (2006) SCC\r\nOnline Bom. 1650, Manoj Oswal v. State of Maharashtra, (2013) SCC\r\nOnLine Bom 978, Ekta Kapoor v. State of M.P., (2020) SCC OnLine MP\r\n4581, Queen\'s\r\nBench Division in the case of Chambers Vs. Director of Public\r\nProsecutions, [(2013) 1 WLR 1833], <br></b></p><p><b>6- Considering the merit of this case, I find that as per allegations\r\nlevelled in the F.I.R. on 17.10.2017 at 21:46 hours, a morphed photo\r\nshowing Hon’ble Prime Minister Narendra Modi shaking hands with\r\ndreaded and wanted terrorist Hafiz Saeed was posted on Facebook in the\r\nname of Anil Sharma and said objectionable post in question was shared\r\nby the applicant Niyaz Ahmad Khan on 24.04.2018 at 19:58 hours.\r\nSimilarly, another post (a morphed photograph), in the name of the\r\nsupporter of Akhilesh Yadav, which was posted on 01.04.2018 at 15:23\r\nhours showing Hon’ble Prime Minister Narendra Modi and Cabinet\r\nMinister Amit Shah are feeding biscuits to dogs, on whom “Aaj Tak TV”,\r\n“Zee TV” and “India TV” was written was also shared by the applicantNiyaz Ahmad Khan on 05.04.2018 at 15:54 hours on his Facebook ID. The grounds taken in the application reveal that many of them relate to\r\ndisputed question of fact. This Court is of the view that at the stage of\r\nsummoning the accused, the court below is not required to go into the\r\nmerit and demerit of the case. Genuineness or otherwise of the allegations\r\ncannot be even determined at the stage of summoning the accused. The\r\nappreciation of evidence is a function of the trial court. This Court in\r\nexercise of power under Section 482 Cr.P.C. cannot assume such\r\njurisdiction and put an end to the process of trial provided under the law.\r\nIt is also settled by the Apex Court in catena of judgments that the power\r\nunder Section 482 Cr.P.C. at pre-trial stage should not be used in a routine\r\nmanner but it has to be used sparingly, only in such appropriate cases,\r\nwhere allegations made in First Information Report or charge-sheet and\r\nthe materials relied in support of same, on taking their face value and\r\naccepting in their entirety do not disclose the commission of any offence\r\nagainst the accused. The disputed question of facts and defence of the\r\naccused cannot be taken into consideration at this pre-trial stage, which\r\ncan be more appropriately gone into by the trial court at the appropriate\r\nstage.</b></p><p><b> 9- Having examined the matter in its entirety, here it would be\r\napposite to mention that this Court is of the view that it is beyond the\r\nshadow of doubt that social media is a global platform for exchange of\r\nthoughts, opinions and ideas. The internet and social media has become\r\nan important tool through which individuals can exercise their right to\r\nfreedom of expression but the right to freedom of expression comes with\r\nits own set of special responsibilities and duties. It does not confer upon\r\nthe citizens the right to speak without responsibility nor does it grant\r\nunfettered licence for every possible use of language. There is an\r\nimmediate need to check the exploitation of social media platforms that\r\nhas political and societal reverberations that go well beyond hacked\r\nsystems and stolen identities. Use of Cyberspace by some people to vent\r\nout their anger and frustration by travestying the Prime Minister, Keyfigures holding the highest office in the country or any other individual is\r\nabhorrent and violates the right to reputation of others. These kind of acts,\r\nposting and sharing unhealthy materials with unparliamentary language\r\nand remarks, etc. on social media without any solid basis cause a\r\ndeleterious effect on the society at large, ergo in order to protect the\r\nreputation and character of individuals, it should be completely stopped.\r\nSince such incidents are on rise in a civilized society day by day and are\r\npolluting the minds of people, therefore, now it is high time to evolve\r\nsome more and full proof screening mechanism to regulate, check and\r\ncontrol the unhealthy posts on social media. It would be fair enough to\r\nstate that such persons who are deliberately involved in such acts directly\r\nor behind the curtain with oblique motive or to settle their score adopting\r\ndifferent modus-operandi are hazardous to the civilized society and they\r\nare not entitled for any sympathy in justice delivery system. High Courts\r\nare sentinels of justice with extraordinary and inherent power to ensure\r\nthat rights and reputation of people are duly protected. Considering the\r\ngravity and nature of offence as well as misuse of social media platforms,\r\nthis Court cannot shut its eyes. The Government is also not expected to\r\nact as a silent spectator.</b></p><p><b>10- Accordingly, Government is directed to take appropriate\r\nremedial measures/steps in order to control and eradicate such\r\nproliferating and booming devastating menace, to stop the misuse of\r\nsocial media platforms and to maintain healthy atmosphere in the society,\r\nwhich is the most important and essential factor for a civilized society. <br></b></p><p><b><br></b></p><p><b> <br></b></p><p><b> </b><br></p>', '1ef57837d38afa5399069ad9f245e0b2.JPG', '5fc3dce085de503cf9548e5fa877317d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-21', 1, '', '', '2022-02-22 03:47:28', '2022-02-22 03:52:11'),
(1347, '4XHNkAqBoObS8CnjYWuyNHE6D', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Evidence Act. There is no need to examine the scribe of Will. What law requires is examination of atleast on attesting witness. Gujarat High Court. ', '<p><b>Sonaji Raghala Chaudhari vs Akha Diwala Chaudhari by lrs.<br>Regular Second Appeal 222 of 1982 decided on 2 July 2021<br>Justice A.P. Thaker.&nbsp;</b></p><p><b>29.3 In order to assess as to whether the Will has been\r\nvalidly executed and is a genuine document, the\r\npropounder has to show that the Will was signed by\r\nthe testator and that he had put his signatures to the\r\ntestament of his own free will; that he was at the\r\nrelevant time in a sound disposing state of mind and\r\nunderstood the nature and effect of the dispositions\r\nand the testator had signed in the presence of two\r\nwitnesses who attested it in his presence and the\r\npresence of each other. Requirement of Section 68\r\nof the Evidence Act in proving the Will is to produce\r\nat least one of the attesting witnesses. In view of the\r\nprovisions of Section 68 of the Evidence Act, there is&nbsp;no need to examine the scribe of Will. What law\r\nrequires is examination of atleast on attesting\r\nwitness.</b></p><p><b>30. In view of the aforesaid legal preposition there is no\r\nneed of examining scribe of the Will. The only legal\r\nrequirement is examination of one attesting witness.<br></b></p><p><b><br></b></p><p><b><br></b></p><p>\r\n<br></p>', 'e509efc36069dea5f9403d47a1aabc90.JPG', 'd83be3637d933d6dac6e11ed471326dc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-21', 1, '', '', '2022-02-22 04:29:11', '2022-02-22 04:29:11'),
(1348, 'NqJguWGWpyJhO8iLUmLPMdi6R', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Courts in India can enforce foreign arbitration award if property of respondent is situated in India though award is passed outside India and parties are incorporated outside India. Karnataka High Court. ', '<p><span style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium;\"><b>CITI Future Corporation vs Ducgiang Chemical and Detergant Powder Joint Stock Company. <br>Arbitration Petition Enforcement of Foreign Arbitration Award 1 of 2022. Order dated 18 February 2022</b></span></p><p><b>1. The petitioner is before this Court seeking for the following reliefs:</b></p><p><b>“<i>i. To enforce the Award dated 18 August 2021 passed by the Sole Arbitrator in SIAC.ARB.903/2020 and registered with the SIAC Registry of Awards as Award No.087/2021 (Annexure-A) and execute the Award in the Execution Petition annexed herewith.<br></i></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>ii. Pass such other order as this Hon\'ble Court may deem fit and proper in the interest of justice.”</i></b></p><p><b>2. The international commercial arbitral award dated 18.08.2021 has been delivered by the Sole Arbitrator in international arbitration proceedings held in Singapore, the final award being registered with the Singapore International Arbitration Centre (SIAC) Registry of Awards as Award No.87 of 2021. It is the said award that is sought to be enforced in these proceedings. </b></p><p><b>3. A perusal of the award as also cause title of the present proceedings indicates that both the petitioner and respondent are body corporates which are incorporated outside India, the petitioner having its registered office at Korea and the respondent having its registered office at Vietnam. It is in this background that a question has arisen as to whether an international commercial arbitral award rendered outside India between the parties who have no connection to India can be enforced in India by filing proceedings under Sections 47, 48 and 49 of the Arbitration and Conciliation Act, 1996 (for short, “the Act of 1996”). </b></p><p><b>4. Part II of the Act of 1996 deals with New York Convention Awards, under which Sections 44 to 52 find place. Section 44 of the Act of 1996 deals with foreign awards and defines the same as an arbitral award on differences between persons arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India. Section 44(b) contemplates a situation of an award being delivered in one of such territories as the Central Government, being satisfied that reciprocal provisions have been made may, by notification declare to be territories to which the Convention applies. </b></p><p><b>5. Thus, for an award to be recognised as a foreign award, it has to be as regards a commercial relationship as per the laws in India and rendered in a territory where the Convention has been made applicable by a suitable notification by the Central Government. </b></p><p><b>6. Section 46 of the Act of 1996 makes any foreign award enforceable under the Act within India. Section 47 of the Act of 1996 requires the original award or a copy thereof, duly authenticated in the manner required by the law in the country it is made, the original agreement for arbitration or a duly certified copy thereof and such evidence as may be necessary to prove that the award is a foreign award. </b></p><p><b>7. Section 47(2) contemplates that if the award or agreement to be produced is in foreign language, then the same shall be translated into English. <br></b></p><p><b>8. The explanation to Section 47 provides for the definition of ‘Court’ under which means the High Court having original jurisdiction to decide the questions forming the subject-matter of the arbitral award if the same had been the subject-matter of a suit in its ordinary original civil jurisdiction and in other cases, in the High Court having jurisdiction to hear appeals from decrees of courts subordinate to such High Court. </b></p><p><b>9. It is relevant to quote Section 2 (e) (ii) of the Act of 1996 which reads as under: “2.(e) “Court” means – (i) xxx (ii) in the case of international commercial arbitration, the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, and in other cases, a High Court having jurisdiction to hear appeals from decrees of courts subordinate to that High Court.” </b></p><p><b>10. Section 2 (f) of the Act of 1996 deals with international commercial arbitration, which is reproduced hereunder for reference: “2.(f) “international commercial arbitration” means an arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India and where at least one of the parties is— (i) an individual who is a national of, or habitually resident in, any country other than India; or (ii) a body corporate which is incorporated in any country other than India; or (iii) an association or a body of individuals whose central management and control is exercised in any country other than India; or (iv) the Government of a foreign country;” Section 2(f) of the Act of 1996, when applied to the present case it is clear that the present arbitration is international commercial arbitration. </b></p><p><b>11. The Central Government by its notification dated 06.07.1999 has declared an arbitral award rendered in Republic of Singapore could be enforced in India, the said notification reads as under: “S.O.542(E) – In exercise of the powers conferred by clause (b) of section 44 of the Arbitration and Conciliation Act, 1996 (26 of 1996), the Central Government, being satisfied that reciprocal provisions have been made, hereby declares the Republic of Singapore to be a territory to which the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, set forth in the First Schedule to the said Act, applies for the purpose of any award of the nature referred to in that section made on or after the 11th day of October 1960” From the above notification, it is clear that any award which has been rendered in Singapore could be enforced in India. </b></p><p><b>12. The contention of Sri Shreyas Jayasimha, learned counsel appearing for the petitioner is that in view of the said notification, an arbitral award rendered in the Republic of Singapore can be enforced in the Republic of India in a Court which would have territorial jurisdiction to pass the necessary orders relating to execution sought for. In the present case, he submits that this Court would have the jurisdiction since the property belonging to the respondent against which interim orders are being sought for are likely to dock in New Mangalore Port. </b></p><p><b>13. In the above background, we have to consider whether this Court would have jurisdiction to take the above matter on file. </b></p><p><b>14. The arbitral award being an international commercial arbitral award is not in dispute, the award being rendered in Singapore is not in dispute, the enforceability of the said award in India is not in dispute in view of the notification issued by the Central Government. </b></p><p><b>15. In the peculiar facts and circumstances of the case, would this Court exercise its jurisdiction when both the parties are not connected to India and they are not corporate bodies established within the territorial limits of the Republic of India, more particularly within the territorial limits of this Court. </b></p><p><b>16. A foreign award under a New York Convention has been given a special status. India being a signatory to the said New York Convention it is required that all countries which are signatories to the New York Convention enable execution of a foreign arbitral award rendered in a reciprocating country in the event of a property against which the arbitral award is sought to be enforced is situated within the jurisdiction of that particular country. </b></p><p><b>17. In this background considering that the above application which is filed under Sections 44 to 52 of the Act of 1996 which deals with New York Convention awards under Chapter I of Part II of the Act of 1996 and the obligations of the Republic of India in terms of Article 51 (c) of the Constitution of India, we are of the considered opinion that this Court could exercise jurisdiction to enforce a foreign award in the event the properties of the respondent against which the enforcement is sought for is situated within the territorial limits of this Court in view of later part of Section 2 (e) (ii) of the Act of 1996 as also later part of the explanation to Section 47(2) of the Act of 1996. Hence, the above petition is taken on record. </b></p><p><b>18. Issue notice to the respondent. 19. Re-list on 22.02.2022.</b><br></p>', '7905f2da1aa3f70f225a450abea5461f.JPG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-21', 1, '', '', '2022-02-22 05:02:32', '2022-02-22 05:23:22'),
(1349, 'BG7F0oXSZacxN9pAcdUcJiJhR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Pharmaceutical companies cannot claim tax benefit for providing freebies to doctors since such action falls within the purview of “prohibited by law”. Supreme Court.  ', '<p><b>M/s Apex Laboratories Pvt. Ltd vs&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Deputy Commissioner of Income Tax, Large Tax Payer Unit - II<br></span>Civil Appeal .. Special Leave Petition 23207 of 2019 decided on 22 February 2022<br>Justice Uday Umesh Lalit and Justice Ravindra Bhat<br>Judgement Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2019/33259/33259_2019_2_1501_33618_Judgement_22-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/33259/33259_2019_2_1501_33618_Judgement_22-Feb-2022.pdf</a></b></p><p><b>22. This Court is of the opinion that such a narrow interpretation of\r\nExplanation 1 to Section 37(1) defeats the purpose for which it was inserted, i.e.,\r\nto disallow an assessee from claiming a tax benefit for its participation in an\r\nillegal activity. Though the memorandum to the Finance Bill, 1998 elucidated the\r\nambit of Explanation 1 to include “protection money, extortion, hafta, bribes,\r\netc.”, yet, ipso facto, by no means is the embargo envisaged restricted to those\r\nexamples. It is but logical that when acceptance of freebies is punishable by the\r\nMCI (the range of penalties and sanction extending to ban imposed on the medical\r\npractitioner), pharmaceutical companies cannot be granted the tax benefit for\r\nproviding such freebies, and thereby (actively and with full knowledge) enabling\r\nthe commission of the act which attracts such opprobrium.</b></p><p><b>24. Even if Apex’s contention were to be accepted - that it did not indulge in\r\nany illegal activity by committing an offence, as there was no corresponding penal provision in the 2002 Regulations applicable to it - there is no doubt that its\r\nactions fell within the purview of “prohibited by law” in Explanation 1 to Section\r\n37(1).</b></p><p><b>25. Furthermore, if the statutory limitations imposed by the 2002 Regulations\r\nare kept in mind, Explanation (1) to Section 37(1) of the IT Act and the insertion\r\nof Section 20A of the Medical Council Act, 195623 (which serves as parent\r\nprovision for the regulations), what is discernible is that the statutory regime\r\nrequiring that a thing be done in a certain manner, also implies (even in the\r\nabsence of any express terms), that the other forms of doing it are impermissible.</b></p><p><b>27. It is also a settled principle of law that no court will lend its aid to a party\r\nthat roots its cause of action in an immoral or illegal act (ex dolo malo non oritur\r\naction) meaning that none should be allowed to profit from any wrongdoing\r\ncoupled with the fact that statutory regimes should be coherent and not selfdefeating. Doctors and pharmacists being complementary and supplementary to\r\neach other in the medical profession, a comprehensive view must be adopted to\r\nregulate their conduct in view of the contemporary statutory regimes and\r\nregulations. Therefore, denial of the tax benefit cannot be construed as penalizing\r\nthe assessee pharmaceutical company. Only its participation in what is plainly an\r\naction prohibited by law, precludes the assessee from claiming it as a deductible\r\nexpenditure</b></p><p><b>28. This Court also notices that medical practitioners have a quasi-fiduciary\r\nrelationship with their patients. A doctor’s prescription is considered the final\r\nword on the medication to be availed by the patient, even if the cost of such&nbsp;medication is unaffordable or barely within the economic reach of the patient –\r\nsuch is the level of trust reposed in doctors. Therefore, it is a matter of great public\r\nimportance and concern, when it is demonstrated that a doctor’s prescription can\r\nbe manipulated, and driven by the motive to avail the freebies offered to them by\r\npharmaceutical companies, ranging from gifts such as gold coins, fridges and\r\nLCD TVs to funding international trips for vacations or to attend medical\r\nconferences. These freebies are technically not ‘free’ – the cost of supplying such\r\nfreebies is usually factored into the drug, driving prices up, thus creating a\r\nperpetual publicly injurious cycle.&nbsp;</b></p><p><b>37. In view of the foregoing discussion, the impugned judgment cannot be faulted with. The appeal is dismissed without order on costs.<br></b><br></p>', '98300552b345a90e8e36e0ed2c7075fa.JPG', 'e0dbacc25f5dd2bb6f1e5b15d68c7463.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-22', 1, '', '', '2022-02-23 01:58:21', '2022-02-23 01:58:21'),
(1350, 'GFW5KVS7gVlvjcyqYtJld7EZK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. When a company is the payee of the cheque, complainant on behalf the Company can be filed by any authorised employee. Supreme Court. ', '<p><span style=\"font-weight: bolder;\">M/s TRL Krosaki Refractories Ltd vs&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">M/s SMS Asia Private Limited &amp; Anr.<br></span><b>Criminal Appeal ... of 2022 Special Leave Petition (Crl) 3113 of 2018</b></p><p><b>Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2018/9193/9193_2018_1_1501_33590_Judgement_22-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/9193/9193_2018_1_1501_33590_Judgement_22-Feb-2022.pdf</a></b></p><p><b>17. In that view, the position that would emerge is that when a company is the payee of the cheque based on which a complaint&nbsp; &nbsp;is&nbsp; &nbsp;filed&nbsp; &nbsp;under&nbsp; &nbsp;Section&nbsp; &nbsp;138&nbsp; &nbsp;of&nbsp; &nbsp;N.I.&nbsp; Act,&nbsp; &nbsp;the complainant necessarily should be the Company which would be represented by an employee who is authorized. Prima­facie, in such a situation the indication in the complaint and the sworn statement (either orally or by affidavit) to the effect that the complainant (Company) is represented by an authorized person&nbsp; &nbsp;who&nbsp; &nbsp;has&nbsp; &nbsp;knowledge,&nbsp; &nbsp;would&nbsp; &nbsp;be&nbsp; &nbsp;sufficient.&nbsp; &nbsp;The employment&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;terms&nbsp; “specific&nbsp; &nbsp;assertion&nbsp; &nbsp;as&nbsp; &nbsp;to&nbsp; &nbsp;the knowledge of the power of attorney holder” and such assertion about knowledge should be&nbsp; “said explicitly”&nbsp; as stated in&nbsp;&nbsp;</b>&nbsp;<b>A.C.\r\nNarayanan&nbsp;vs.&nbsp;State&nbsp;of&nbsp;Maharashtra&nbsp;&amp;&nbsp;Anr.&nbsp;(2014)&nbsp;11&nbsp;SCC\r\n790&nbsp;cannot be understood to mean that the assertion should be in any particular manner, much less only in the manner understood by the accused in the case. All that is necessary is to demonstrate before the learned Magistrate that the complaint filed is in the name of the “payee” and if the person who is prosecuting the complaint is different from the payee, the authorisation therefor and that the contents of the complaint&nbsp; &nbsp;are&nbsp; &nbsp;within&nbsp; &nbsp;his&nbsp; &nbsp;knowledge.&nbsp; &nbsp;When,&nbsp; &nbsp;the complainant/payee is a company, an authorized employee can represent&nbsp; &nbsp;the&nbsp; &nbsp;company.&nbsp; &nbsp;Such&nbsp; &nbsp;averment&nbsp; &nbsp;and&nbsp; prima&nbsp; &nbsp;facie material&nbsp; &nbsp;is&nbsp; &nbsp;sufficient&nbsp; &nbsp;for&nbsp; &nbsp;the&nbsp; &nbsp;learned&nbsp; &nbsp;Magistrate&nbsp; &nbsp;to&nbsp; &nbsp;take cognizance and issue process. If at all, there is any serious dispute with regard to the person prosecuting the complaint not being authorized or if it is to be demonstrated that the person&nbsp; &nbsp;who&nbsp; &nbsp;filed&nbsp; &nbsp;the&nbsp; &nbsp;complaint&nbsp; &nbsp;has&nbsp; &nbsp;no&nbsp; &nbsp;knowledge&nbsp; &nbsp;of&nbsp; &nbsp;the transaction and, as such that person could not have instituted and prosecuted the complaint, it would be open for the accused to&nbsp; &nbsp;dispute&nbsp; &nbsp;the&nbsp; &nbsp;position&nbsp; &nbsp;and&nbsp; &nbsp;establish&nbsp; &nbsp;the&nbsp; &nbsp;same&nbsp; &nbsp;during&nbsp; &nbsp;the course of the trial. As noted in&nbsp;</b>&nbsp;<b>Samrat\r\nShipping&nbsp;Co.&nbsp;Pvt.&nbsp;Ltd.&nbsp;Vs.&nbsp;Dolly&nbsp;George &nbsp;(2002)&nbsp;9&nbsp;SCC&nbsp;455,&nbsp; &nbsp;dismissal&nbsp; &nbsp;of&nbsp; &nbsp;a&nbsp; &nbsp;complaint&nbsp; &nbsp;at&nbsp; &nbsp;the&nbsp; &nbsp;threshold&nbsp; &nbsp;by&nbsp; &nbsp;the Magistrate&nbsp; &nbsp;on&nbsp; &nbsp;the&nbsp; &nbsp;question&nbsp; &nbsp;of&nbsp; &nbsp;authorisation,&nbsp; &nbsp;would&nbsp; &nbsp;not&nbsp; &nbsp;be justified.&nbsp; &nbsp;Similarly,&nbsp; &nbsp;we&nbsp; &nbsp;are&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;view&nbsp; &nbsp;that&nbsp; &nbsp;in&nbsp; &nbsp;such circumstances&nbsp; &nbsp;entertaining&nbsp; &nbsp;a&nbsp; petition&nbsp; &nbsp;under&nbsp; Section&nbsp; &nbsp;482&nbsp; &nbsp;to quash the order taking cognizance by the Magistrate would be unjustified&nbsp; &nbsp;when&nbsp; &nbsp;the&nbsp; &nbsp;issue&nbsp; &nbsp;of&nbsp; &nbsp;proper&nbsp; &nbsp;authorisation&nbsp; &nbsp;and knowledge can only be an issue for trial.&nbsp;</b></p>', '1e56bfae4f72758f0fd709e4efc063cf.JPG', '991de756dc7973bd643add96946bd133.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-22', 1, '', '', '2022-02-23 02:33:42', '2022-02-23 02:33:42'),
(1351, 'jfusn2QwKLCV7Xpi6nGN7M5S9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Consumer Protection Act, 1986. Person availing overdraft facility from Bank for day-­to-­day share and stock transactions is not a \'Consumer\' since such activity is commercial in nature. Supreme Court. ', '<p><b>Shrikant G Mantri vs Punjab National Bank<br>Civil Appeal 11397 of 2016 decided on 22 February 2022<br>Justice L. Nageswara Rao and Justice B.R. Gavai. <br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2016/30722/30722_2016_5_1501_33588_Judgement_22-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2016/30722/30722_2016_5_1501_33588_Judgement_22-Feb-2022.pdf</a></span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1. The   present   appeal   filed   by   the   appellantcomplainant   challenges   the   judgment   and   order   dated   1st June,   2016,   passed   by   the   National   Consumer   Disputes Redressal Commission, New Delhi (hereinafter referred to as “the Commission”) in Consumer Complaint No.55 of 2006, thereby holding that the appellant­complainant was not a consumer   as   envisaged   under   Section   2(1)(d)   of   The Consumer  Protection  Act,  1986  (hereinafter  referred  to   as “the said Act”).   As such, by the impugned judgment and order,  the complaint  of  the  appellant  has  been dismissed being not maintainable. </span><br></b></p><p><b>20. The short question, therefore, that would have to be answered in the present case is, as to whether the services availed by the appellant from the respondent­Bank would fall within the term ‘commercial purpose’.   The other question that would also have to be answered is, as to whether such services   are   exclusively   availed   by   the   appellant   for   the purposes   of   earning   his   livelihood   by   means   of   selfemployment. </b></p><p><b>30. It could thus be seen that by the 2002 Amendment Act, the legislature clearly provided that a person, who avails of such services for any commercial purpose would be beyond the   ambit   of   definition   of   the   term   ‘consumer’. The Explanation, which is an exception to an exception, which earlier excluded a person from the term ‘commercial purpose’, if goods were purchased by such a person for the purposes of earning   his   livelihood   by   means   of   self­employment,   was substituted and the Explanation was made applicable to both clauses (i) and (ii).   It can thus clearly be seen that by the 2002 Amendment Act, though the legislature provided that whenever a person avails of services for commercial purposes, he would not be a consumer; it further clarified that the ‘commercial purpose’ does not include use by a person of goods bought and used by him and services availed by him exclusively   for   the   purposes   of   earning   his   livelihood by means of self­employment.   </b></p><p><b>31. It is thus clear that by the 2002 Amendment Act, the legislature   has   done   two  things.    Firstly,   it   has   kept   the commercial   transactions,   insofar   as   the   services   are concerned,   beyond   the   ambit   of   the   term   ‘consumer’   and brought it in parity with Section 2(1)(d)(i), wherein a person, who   bought   such   goods   for   resale  or   for   any  commercial purpose, was already out of the ambit of the term ‘consumer’. The second thing that the legislature did was that even if a person   availed   of   the   commercial   services,   if   the   services availed by him were exclusively for the purposes of earning his livelihood by means of self­employment, he would still be a ‘consumer’ for the purposes of the said Act.  Thus, a person who availed of services for commercial purpose exclusively for the   purposes   of   earning   his   livelihood   by   means   of   selfemployment was kept out of the term ‘commercial purpose’ and brought into the ambit of ‘consumer’, by bringing him on par with similarly circumstanced person, who bought and used   goods   exclusively   for   the   purposes   of   earning   his livelihood by means of self­employment.   It could thus be seen that the legislature’s intent is clear.   If a person buys goods   for   commercial   purpose   or   avails   services   for commercial purpose, though ordinarily, he would have been out   of   the   ambit   of   the   term   ‘consumer’,   by   virtue   of Explanation, which is now common to both Sections 2(1)(d)(i) and 2(1)(d)(ii), he would still come within the ambit of the term ‘consumer’, if purchase of such goods or availing of such services   was   exclusively   for   the   purposes   of   earning   his livelihood by means of self­employment.  With this legislative history in background, we will have to consider the present case. </b></p><p><b>33. It could thus be seen that this Court has clearly held that   the   idea   of   enacting   the   said   Act   was   to   help  the consumers get justice and fair treatment in the matter of goods   and   services   purchased   and   availed   by   them   in   a market   dominated   by   large   trading   and   manufacturing bodies.  It has been held that the entire Act revolves round the   consumer   and   is   designed   to   protect   his   interest.   It provides   for   “business­to­consumer”   disputes   and   not   for “business­to­business”   disputes.       It   has   been   held   that forums/commissions   provided   by   the   said   Act   are   not supposed to supplant but supplement the existing judicial system.   The   idea   was   to   provide   an   additional   forum providing   inexpensive   and   speedy   resolution   of   disputes arising   between   consumers and suppliers   of   goods   and services.  </b></p><p><b>36. One instance given is that a person who purchases a typewriter and works on the typewriter himself, the purchase would be for the purposes of earning his livelihood by means of self­employment and he would not cease to be a ‘consumer’ for the purposes of the said Act. Another example given is that, if a person who purchases an auto­rickshaw to ply it himself on hire for earning his livelihood, he would still be a consumer   too.     This   Court   held   that   the   question   as   to whether the transaction is for the ‘commercial purpose’ or for ‘earning   his   livelihood   by   means   of   self­employment’   is   a question of fact that has to be decided in the facts of each case.  It has been held that it is not the value of the goods that matters but the purpose to which the goods so bought, are put to. It has been held that several words used in the explanation, viz., “uses them by himself”, “exclusively for the purpose of earning his livelihood” and  “by means  of  selfemployment”   make   the   intention   of   the   Parliament abundantly clear, that the goods bought must be used by the buyer himself, for earning his livelihood. </b></p><p><b>42. It is thus clear, that this Court has held that the question, as to  whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each   case.   However, ordinarily,   “commercial   purpose”   is understood to include manufacturing/industrial activity or business­to­business   transactions   between   commercial entities; that the purchase of the good or service should have a close and direct nexus with a profit­generating activity; that the identity of the person making the purchase or the value of the transaction is not conclusive for determining the question as to whether it is for a commercial purpose or not.   What is relevant is the dominant intention or dominant purpose for the transaction and as to whether the same was to facilitate some kind of profit generation for the purchaser and/or their beneficiary.   It has further been held that if the dominant purpose behind purchasing the good or service was for the personal use and the consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, then the question of whether such a purchase was for the purpose of “generating livelihood by means of selfemployment” need not be looked into. </b></p><p><b>46. In the present matter, it is not in dispute that the appellant was already engaged in the profession of stockbroker, much before he availed of service of the  overdraft facility from the respondent­Bank.  It is also not in dispute that he was also acting as a stock­broker for the respondentBank. It is also not in dispute that the appellant took the overdraft facility  and also sought enhancement of the same from time to time in furtherance of his business as a stockbroker and for the purpose of enhancing the profits therein. As   already   held   by   this   Court   in   the   case   of  Laxmi Engineering  Works  (supra), the terms “services availed by him”, “exclusively for the purpose of earning his livelihood” and “by means of self­employment” will have to be given its meaning, as intended by the legislature.  The said terms will have to be construed in context with the purpose for which the said Act is enacted.  We have elaborately discussed the legislative history as to   how Section 2(1)(d) of the said Act has come in its present form from the original form.   The amendments incorporated by the 1993 Amendment Act as well as by the 2002 Amendment Act would clearly show that the legislative intent is to keep the commercial transactions out of the purview of the said Act and at the same time, to give benefit of the said Act to a person who enters into such commercial transactions, when he uses such goods or avails such   services   exclusively   for   the   purposes   of   earning   his livelihood by means of self­employment.  </b></p><p><b>47. In the present case, the Commission has come to a finding that the appellant had opened an account with the respondent­Bank,   took  overdraft   facility  to   expand   his business  profits,  and  subsequently  from time  to  time  the overdraft facility  was enhanced so as to further expand his business and increase his profits.  The relations between the appellant   and   the   respondent   is   purely   “business   to business”   relationship.     As   such,   the   transactions   would clearly come within the ambit of ‘commercial purpose’.   It cannot be said that the services were availed “exclusively for the purposes of earning his livelihood” “by means of selfemployment”.   If the interpretation as sought to be placed by the   appellant   is   to   be   accepted,   then   the   ‘business   to business’   disputes   would   also   have   to   be   construed   as consumer  disputes,  thereby  defeating  the  very purpose  of providing speedy and simple redressal to consumer disputes.  </b></p><p><br></p>', 'ef0c12bb653af40b77ecb5f09c20466d.jpg', '888593fd4354ffcadad2e3ee5f60c82e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-22', 1, '', '', '2022-02-23 02:53:40', '2022-02-23 02:58:24');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1352, 'SaFN64T7v7FX57Nyran5JlM87', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\"Rash and negligent driving does not always equate to over-speeding. Even though one may be driving within the speed limit, it is conceivable that one may still be driving rashly and negligently.\" Allahabad High Court.  ', '<p><b>Court No. - 39\r\nCase :- First Appeal From Order No. - 1652 of 2009\r\n<br>Appellant :- Dr. Anoop Kumar Bhattacharya and another\r\n<br>Respondent :- National Insurance Co. Ltd.\r\n<br>Counsel for Appellant :- Sanjay Singh, Amrendra Nath Rai\r\n<br>Counsel for Respondent :- Amit Manohar\r\n<br>Hon\'ble Mrs. Justice Sunita Agarwal,.\r\nHon\'ble Justice Krishan Pahal,.&nbsp;<br></b></p><p><b>71. We are not impressed. Rash and negligent driving does not always\r\nequate to over-speeding. Even though one may be driving within the\r\nspeed limit, it is conceivable that one may still be driving rashly and\r\nnegligently. We may profitably refer to the observations of the Supreme\r\nCourt in the case of<u> Ravi Kapur V. State of Rajasthan, reported in\r\n(2012) 9 SCC 984,</u> to substantiate our point. The Hon’ble Supreme Court\r\nobserved thus: -</b></p><p><b><i>“10. In order to examine the merit or otherwise of contentions (b) and\r\n(c) raised on behalf of the appellant, it is necessary for the Court to first\r\nand foremost examine (a) what is rash and negligent driving; and (b)\r\nwhether it can be gathered from the attendant circumstances. Rash and&nbsp;negligent driving has to be examined in light of the facts and\r\ncircumstances of a given case. It is a fact incapable of being construed\r\nor seen in isolation. It must be examined in light of the attendant\r\ncircumstances. A person who drives a vehicle on the road is liable to be\r\nheld responsible for the act as well as for the result. It may not be always\r\npossible to determine with reference to the speed of a vehicle whether a\r\nperson was driving rashly and negligently. Both these acts presuppose\r\nan abnormal conduct. Even when one is driving a vehicle at a slow\r\nspeed but recklessly and negligently, it would amount to ‘rash and\r\nnegligent driving’ within the meaning of the language of Section 279\r\nIPC. That is why the legislature in its wisdom has used the words\r\n‘manner so rash or negligent as to endanger human life’. The\r\npreliminary conditions, thus, are that (a) it is the manner in which the\r\nvehicle is driven; (b) it be driven either rashly or negligently; and (c)\r\nsuch rash or negligent driving should be such as to endanger human life.\r\nOnce these ingredients are satisfied, the penalty contemplated under\r\nSection 279 IPC is attracted.”&nbsp;</i></b></p><p><b>72. As such, even if it is accepted that the offending truck was not overspeeding, it does not imply automatically that it was not being driven\r\nrashly and negligently. Failure to exercise due care and caution while\r\ndriving, even when within speed limit, would still constitute rash and\r\nnegligent driving. Thus, even if it is accepted that the offending truck was\r\nnot over-speeding, it is not enough to contradict and render doubtful the\r\ntestimony of PW-2.</b></p><p><b>75. Accordingly, we hold that when examined against the standard of\r\npreponderance of probabilities, the claimants have proved both the factum\r\nof the accident and the negligence on the part of the driver of the\r\noffending truck.&nbsp;</b></p><p><br></p>', 'bcb42ef6fe67ef9bea48bdf7fdc7ecce.JPG', '2ece178d034307e8594f004c8691bce3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-23', 1, '', '', '2022-02-23 19:09:02', '2022-02-23 19:09:02'),
(1353, 'rN7rZtipJImCvNFpT8nJgYbei', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mens rea is not an essential element for imposing penalty or damages for failure to deposit contribution under the Employees Provident Fund & Miscellaneous Provisions Act. Supreme Court reiterates.', '<p><b>Horticulture Experiment Station Gonikoppal Coorg vs The Regional Provident Fund Organisation.&nbsp;<br>Civil Appeal 2136 of 2012 decided on 23 February 2022<br>Justice Ajay Rastogi and Justice Abhay S Oka.&nbsp;<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgement Link:<br><a href=\"https://main.sci.gov.in/supremecourt/2010/16638/16638_2010_13_1501_33603_Judgement_23-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2010/16638/16638_2010_13_1501_33603_Judgement_23-Feb-2022.pdf</a></span><br></b></p><p><b>9. The question that emerges for our consideration in the\r\ninstant appeals is that what will be the effect and implementation\r\nof Section 14B of the Act 1952 and as to whether the breach of civil\r\nobligations or liabilities committed by the employer is a sine qua\r\nnon for imposition of penalty/damages or the element of mens rea\r\nor actus reus is one of the essential elements has a role to play and\r\nthe authority is under an obligation to examine the justification, if\r\nany, being tendered while passing the order imposing damages\r\nunder the provisions of the Act 1952.&nbsp;</b></p><p><b>10. Undisputedly, the establishment of the appellant(s) was\r\ncovered under the provisions of the Act 1952, but still failed to\r\ncomply with the same and for such non-compliance of the mandate\r\nof the Act 1952, initially the proceedings were initiated under&nbsp; section 7A and after adjudication was made in reference to\r\ncontribution of the EPF which the appellant was under an\r\nobligation to pay and for the contravention of the provisions of the\r\nAct 1952, the appellant(s) indeed committed a breach of civil\r\nobligations/liabilities and after compliance of the procedure\r\nprescribed under the Act 1952 and for the delayed payment of EPF\r\ncontribution for the period January 1975 to October 1988, after\r\naffording due opportunity of hearing as contemplated, order was\r\npassed by the competent authority directing the appellant(s) to pay\r\ndamages as assessed in accordance with Section 14B of the Act\r\n1952.\r\n</b></p><p><b>11. A two-Judge Bench of this Court in  Chairman, SEBI v. Shriram Mutual\r\nFund and Another \r\n(2006) 5 SCC 361,\r\nwhile examining the scope and ambit of Section 15-D of SEBI\r\n(Mutual Funds) Regulations, 1996 regarding imposition of penalty\r\nfor certain defaults in case of mutual funds, examined the question\r\nas to whether mens rea is an essential element for imposing\r\npenalty for breach of civil obligations and taking note of the\r\nbinding precedent of this Court held that mens rea is not an\r\nessential element for imposing penalty for breach of civil\r\nobligations or liabilities.&nbsp;</b></p><p><b>13. Taking note of the exposition of law on the subject, it is wellsettled that mens rea or actus reus is not an essential element for\r\nimposing penalty or damages for breach of civil obligations and\r\nliabilities.&nbsp;</b><br></p>', '9242f9903f47a178c065187962e4c2b7.jpg', 'c507de842bc1962f3c9047847b4e45f8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-23', 1, '', '', '2022-02-24 02:13:19', '2022-02-24 02:21:40'),
(2715, 'yEmRRt1JVgo1T5mD3QFAuJfwy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A child should not be lost in its search for paternity. Children have the right to privacy not to have their legitimacy questioned frivolously before a Court of Law. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Aparna Ajinkya Firodia Vs Ajinkya Arun Firodia.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 1308 of 2023 decided on 20 February 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice B.V. Nagarathna and Justice V. Ramasubramanian. </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">1. While I am entirely in agreement with the opinion wellcrafted by my learned sister Hon’ble Mrs. Justice B.V. Nagarathna, I thought that two aspects of the matter require little more emphasis. Hence a separate but concurring opinion.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">21. But we do not know how a mix up of Section 112 and Section 114 is possible. Section 112 deals with something where the existence of a fact is taken to be conclusive proof, without any possibility for the disputing party to lead evidence for disproving <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the same. The only escape route or emergency exit as we may call it, available for a person to deprive another person of the benefit of Section 112, is to show that the parties to the marriage did not have access to each other at the time when the child could have been begotten. Section 114 has nothing to do with, nor is in connection with conclusive proof of legitimacy dealt with by Section 112. Both Section 112 and Section 114 fall under different compartments. The word “presumption” itself is not used in Section 112. The expression used in Section 112 is “conclusive proof”. Therefore, by virtue of Section 4, no evidence shall be allowed to be given for the purpose of disproving it.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">22. As we have indicated elsewhere, if one of the parties to the marriage shows that he had no access to the other at the time when the child could have been begotten, then Section 112 itself does not get attracted. On the contrary, if the parties have had access to each other at the relevant point of time, the fate of the question relating to legitimacy is sealed.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">23. We are not suggesting for a moment that Section 112 acts as a shield even for the alleged adulterous conduct on the part of the wife. All that we say is that anything that would destroy the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">legal effect of Section 112 cannot be used by the respondent, on the ground that the same is being done to achieve another result.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">25. The pleading of the respondent extracted above to the effect that after September 2016, he has had no physical relationship with the appellant-wife means that he has at least had access to the wife both at the time when the child was begotten and for a full period of three years even thereafter. Therefore, the conclusive proof under Section 112 has actually come into play in this case.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">26. There is another fallacy in the argument of the respondent. It is the contention of the respondent that he is seeking an <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">adverse inference to be drawn only as against the wife under Section 114(h), upon the refusal of the wife to subject the child to DNA test. But the stage at which the wife may refuse to subject the child to DNA, would arise only after the Court comes to the conclusion that a DNA test should be ordered. To put in simple terms, there are three stages in the process, namely, (i) consideration by the Court, of the question whether to order DNA test or not; (ii) passing an order directing DNA test, after such consideration; and (iii) the decision of the wife to comply or not, with the order so passed. The respondent should first cross the outer fence namely whether a DNA test can be ordered or not. It is only after he convinces the Court to order DNA test and successfully secures an order that he can move to the inner fence, regarding the willingness of the wife to abide by the order. It is only at that stage that the respondent can, if at all, seek refuge under Section 114(h). </span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">28. Coming to the presumption under Section 114(h), the contention of the respondent is obviously misplaced. An adverse inference, in law, can be drawn only against the person who refuses to answer a question. In the case on hand, the appellant has a dual role to play, namely, that of the respondent’s wife and that of Master Arjun’s mother. If the appellant does or refuses to do something, for the purpose of deriving a benefit to herself, an adverse inference can be drawn against her. But in her capacity as a mother and natural guardian if the appellant refuses to subject the child to DNA test for the protection of the interests and welfare of the child, no adverse inference of adultery can be drawn against her. By refusing to subject the child to DNA test, she is actually protecting the best interests of the child. For protecting the best interests of the child, the appellant-wife may be rewarded, but not punished with an adverse inference. By taking recourse to Section 114(h), the respondent cannot throw the appellant to a catch-22 situation.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">29. Therefore, Section 114(h) has no application to a case where a mother refuses to make the child undergo DNA test. It is to be remembered that the object of conducting a DNA test on the child is primarily to show that the respondent was not the biological <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">father. Once that fact is established, it merely follows as a corollary that the appellant was living in an adulterous relationship.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">30. What comes out of a DNA test, as the main product, is the paternity of the child, which is subjected to a test. Incidentally, the adulterous conduct of the wife also stands established, as a by-product, through the very same process. To say that the wife should allow the child to undergo the DNA test, to enable the husband to have the benefit of both the product and the byproduct or in the alternative the wife should allow the husband to have the benefit of the by-product by invoking Section 114, if she chooses not to subject the child to DNA test, is really to leave the choice between the devil and the deep sea to the wife.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">31. In fact, in cases of this nature the Court must bear in mind that Section 114 uses only the word “may” and not the word “shall”. Therefore, the constraints articulated in the exposition to Illustration (h) under Section 114 may dissuade the Court not to presume at all.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">32. Hence, we reject the contention of the respondent that what is sought to be invoked is only Section 114(h) and not Section 112.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">33. As rightly contended by Shri Huzefa Ahmadi, learned senior counsel for the appellant, the question as to whether a DNA test should be permitted on the child, is to be analysed through the prism of the child and not through the prism of the parents. The child cannot be used as a pawn to show that the mother of the child was living in adultery. It is always open to the respondenthusband to prove by other evidence, the adulterous conduct of the wife, but the child’s right to identity should not be allowed to be sacrificed.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">34. It is contended by Mr. Kapil Sibal, learned senior counsel for the respondent that after all the endeavour of every Court should be to find the truth and that every party to a litigation is entitled to produce the best evidence. Enabling the party to produce the best of evidence, is part and parcel of right to fair trial. Therefore, it is contended by learned senior counsel that the refusal to subject the child to DNA test would infringe upon the respondent’s right to fair trial. To buttress the contention that the right to privacy of an individual must yield to the right to fair trial of another, reliance is placed upon the decision of this Court in Sahara India Real Estate Corporation Limited & Ors. vs. Securities and Exchange Board of India & Anr</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">35. Attractive as it may seem at first blush, the said argument does not carry any legal weight. The lis in these cases is between the parties to a marriage. The lis is not between one of the parties to the marriage and the child whose paternity is questioned. To enable one of the parties to the marriage to have the benefit of fair trial, the Court cannot sacrifice the rights and best interests of a third party to the lis, namely, the child.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">36. Therefore, I concur wholeheartedly with my learned sister that the Family Court as well as the High Court were wrong in allowing the application of the respondent for subjecting the child to DNA test. Therefore, the appeal deserves to be allowed and accordingly it is allowed. However, this shall not preclude the respondent-husband from leading any other evidence to establish the allegations made by him against the appellant in the petition for divorce.</span></span></p>', '7b52f16ab6440d5e909411e34008b1bb.jpeg', '84b85a9e2fdd42b506d33aa907e6d729.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-23', 1, '', '', '2023-02-22 13:13:35', '2023-02-23 06:57:59'),
(1355, 'ydlEhdAvEPjpvqlX5tTzMfG2N', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Challenge to an award passed in an International Commercial Arbitration can be made before Commercial Division of a Single Judge Bench of the High Court. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">ITI Limited vs Alphion Corporation and another.</span><br><b>Commercial</b><span style=\"font-weight: bolder;\">&nbsp;Appeal 32 of 2022 decided on 16 February 2022<br>Chief Justice Ritu Raj Awasthi and Justice Suraj Govindaraj&nbsp;</span></p><p><b>1. Upon the filing of the above matter, the registry has raised an objection as regards how a Commercial Appeal (COMAP) is maintainable when filed under Section 34 of the Arbitration and Conciliation Act, 1996, since an award dated 07.10.2021 is sought to be set aside.</b></p><p><b>5. It is in the above background that the following aspects are required to be determined by this Court:</b></p><p><b>5.1 Whether a challenge to an award passed in an International Commercial Arbitration can be made before the High Court of Karnataka?</b></p><p><b>5.2 If so made, would it have to be considered by a Single Judge or Division Bench?</b></p><p><b>5.3 Is there any limitation on the basis of the pecuniary Jurisdiction for the exercise of powers by the Single Judge or a Division Bench?</b></p><p><b>5.4 In respect of a challenge to an International Commercial Arbitral Award, would a party to the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">same have the benefit of Section 37 of the A &amp; C Act? If so, where would the appeal lie?</b></p><p><b>5.5 Is the classification of cases now existing sufficient to cater to the Challenge made to an award in any International Commercial Arbitration. If so, which classification would apply? If not, is there a requirement for a new classification?</b></p><p><b>5.6 Would the above be applicable to other proceedings arising out of International Commercial Arbitration viz., execution of an International Commercial Arbitral Award or interim relief in respect of International Comercial Arbitration?</b></p><p><b>6. The question as to whether a proceeding challenging an International Commercial Arbitral Award can be instituted in India is no longer res integra. The Apex Court in the case of BHARAT ALUMINIUM COMPANY VS. KAISER ALUMINIUM TECHNICAL SERVICES INC. reported in [(2012) 2 SCC 552],&nbsp;</b></p><p><b>7. From perusal of the above, it is clear that an&nbsp; International Commercial Arbitral Award can be challenged in Indian Courts so long as the arbitral proceedings were held in India even though the arbitration may be an International Commercial Arbitration.</b></p><p><b>10. An International Commercial Arbitration Award is defined under Section 2(f) of A &amp; C Act&nbsp;</b></p><p><b>12. Thus from the above, it is clear that if in an arbitral proceedings, one of the parties is a national of or is a resident in a country other than India, is a body corporate, which is incorporated in any country other than India or an association whose central management and control is exercised in any country other than India or is a government of a foreign country, the same would be an International Commercial Arbitration. Provided&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">further that the dispute arises out of legal relationship whether contractual or not considered to be commercial under the law in force in India.</b></p><p><b>21. In terms of Section 4 of C.C.Act, in all High Courts, having Ordinary Original Civil Jurisdiction , the Chief Justice of the High Court may constitute Commercial Division having one or more Benches consisting of a single Judge for the purpose of exercising the Jurisdiction and powers conferred on it under the Act. This Section applies only to High Courts exercising Ordinary Original Civil Jurisdiction and not to Courts which do not exercise such Ordinary Original Civil Jurisdiction. Thus a Commercial<span style=\"white-space:pre\">	</span>Division<span style=\"white-space:pre\">	</span>is contemplated only as regards courts that exercise Ordinary Original Civil Jurisdiction .</b></p><p><b>23. In terms of Section 5, the Chief Justice of the concerned High Court may constitute Commercial Appellate Division having one or more Division Benches for the purpose of exercising the Jurisdiction and powers conferred under the Act. This Section, however, does not make a distinction as regards High Courts exercising Ordinary Original Civil Jurisdiction and those that do not. Thus a Commercial Appellate Division can be established both in High Courts exercising Ordinary Original Civil Jurisdiction and those that do not.</b></p><p><b>27. In terms of sub-clause (1) of Section 10, where a Commercial Division is constituted in the High Court, all applications or appeals arising out of International Commercial Arbitration would have to be filed in the Commercial Division where such Commercial Division has been constituted by such High Court as regards arbitration other than International Commercial Arbitration.</b></p><p><b>28. In terms of Sub-clause (2) of Section 10, if arbitration is other than an International Commercial Arbitration, all applications or appeals would have to be filed on the original side of the High Court which shall be heard and disposed of by the Commercial Division where such Commercial Division has been constituted in the High Court.</b></p><p><b>30.<span style=\"white-space:pre\">	</span>Thus, it is clear that</b></p><p><b>30.1<span style=\"white-space:pre\">	</span>Any challenge to an arbitral award other than an International Commercial Arbitration, for convenience, referred to as a Domestic Arbitral Award would have to be made before the Commercial Court or a Commercial Division of the High Court if created.</b></p><p><b>30.2<span style=\"white-space:pre\">	</span>In respect of International Commercial Arbitration, the same would have to be filed before a Commercial Division where it has been constituted.</b></p><p><b>31. The problem arises on account of Section 10 not adverting to a situation where a Commercial Division has not been constituted. As referred to supra, a Commercial Division is required to be constituted in all High Courts exercising Ordinary Original Civil Jurisdiction in terms of Section 4 of C.C.Act. Neither Section 4 of CC Act nor any other provision provides for the constitution of a Commercial Division by High Court not having Ordinary Original Civil Jurisdiction.</b></p><p><b>34. The classification sought to be made is also that of a Commercial Appeal (COMAP) so as to be placed before the Commercial Appellate Division.</b></p><p><b>35. In the result, the proceedings under section 34 challenging the International Commercial Arbitration are being heard and disposed of by a Division Bench.</b></p><p><b>37. Section 37 of the A &amp; C Act commences with a non- abstante clause “Notwithstanding anything contained in any other law for the time being in force” and goes on to mandate that an appeal “shall” lie from an order setting aside or refusing to set aside an arbitral award under Section 34 to the Court authorised by law to hear appeals from original decrees of the Court passing the order.</b></p><p><b>44. A meaningful reading when given to the said provisions would lead to the irresistible conclusion that even in so far as the High Court not exercising Ordinary Original Civil Jurisdiction, a Commercial Division is required to be established for purposes of consideration of applications and appeals arising out of International Commercial Arbitrations.</b></p><p><b>45. Such Commercial Divisions would have to be constituted comprising of Single Judges which would give meaning and purport to clause (1) of Section 10 of C.C.Act, thereby any application or appeal in respect of International Commercial Arbitration could be filed before the Commercial Division and in the event of Challenge required to be made to the orders passed by the Commercial Division, the same could be filed before the Commercial Appellate Division constituted under Section 5 of CC Act.</b></p><p><b>46. The statutory appellate remedy mandated to be provided under Section 37 of the A &amp; C Act, 1996 would also be&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">available to the parties, and they would not be deprived of such statutory appeal.</b></p><p><b>49. Reading of Section 4 of CC Act with Sub Section (1) of Section 10, any application or appeal arising out of the International Commercial Arbitration would have to be filed before a Commercial Division i.e., a Single Judge Bench of this Court performing the duties of a Commercial Division. In view thereof, we are of the considered opinion that the bifurcation of appeals on the basis of pecuniary value being Rs.15 lakhs and below or Rs.15 lakhs and above would not apply to a Commercial Division constituted and as such, any proceedings where an application or appeal or a petition arising out of an International Commercial Arbitration would have to be placed before a Commercial Division of a Single Judge Bench of this Court.</b></p><p><b>50. In the event of an appeal required to be filed as regards setting aside or refusing to set aside an International Commercial Arbitral Award under Section 34, as also any appeal to be filed as regards the grant or refusing to&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">grant any measure under Section 9, an appeal would lie to the Commercial Appellate Division.</b></p><p><b>51. Hence, we answer the questions raised as under:</b></p><p><b>51.1. A challenge to an award passed in an International Commercial Arbitration can be made before the High Court of Karnataka in view of Section 2 (e) (ii) of the A &amp; C Act 1996.</b></p><p><b>51.2. In terms of Section 10 (1) if the CC Act, a challenge to an International Commercial Arbitral Award would have to be considered by a Commercial Division established in the High Court consisting of a Single Judge.</b></p><p><b>51.3. The Commercial Divisions were constituted as a special Division, the ordinary limitation of the pecuniary Jurisdiction for the exercise of powers of the Single Judge would not apply and the pecuniary jurisdiction would be unlimited.</b></p><p><b>51.4. Section 37 of the A &amp; C Act mandates the provision of an Appellate remedy, the Commercial Appellate Division which exercises Jurisdiction under Section 37 of the A &amp; C Act 1996 would also be the forum for challenging a decision of the Commercial Division of the High Court.</b></p><p><b>51.5. The classification of cases now existing is not sufficient to cater to the Challenge made to an award in any International Commercial Arbitration. A fresh Classification would have to be made as regards such proceedings. One relating to proceedings under Section 34 as regards the Challenge to an International Commercial Arbitral Award and another relating to the orders of the Commercial Divisions challenging the Order passed under Section 9 of the A &amp; C Act as regards International Commercial Contracts or Arbitral Proceedings.</b></p><p><b>51.6. Any Proceedings seeking for the execution of an International Commercial Arbitral Award or seeking for interim relief in respect of International Commercial&nbsp;Arbitration would also have to be dealt with by the Commercial Division comprising of a Single Judge.</b></p><p><b>51.7. All pending proceedings which meet the above criteria pending before the Commercial Appellate Division are directed to be reclassified and transferred to the Single Judge exercising jurisdiction over the Commercial Division.</b></p><p><b>52. Registry is directed to place this order before the Hon’ble Chief Justice on the administrative side for passing necessary orders relating to the above.</b></p><p><b>53. List on 25.02.2022.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '8f65ef60a1f6bdd5e8c1ff8506bc704a.jpg', 'bd379df5ee58cd11f0f8f0c81a6d318f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-24', 1, '', '', '2022-02-24 23:46:58', '2022-02-24 23:46:58'),
(1356, 'T4nJRfZZMFbciWBTLvObPRvjP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Policy on compassionate appointment must meet the mandate of Article 14 and 16. Children born from the second wife of a deceased employee are entitled for compassionate appointment. Supreme Court. ', '<p><b>Mukesh Kumar and another vs The Union of India and others. <br>Civil Appeal in SLP 18571 of 2018 decided on 24 February 2022<br>Justice Uday Umesh Lalt, Justice S. Ravindra Bhat and Justice pamidighantam sri. Narasimham</b></p><p><b>Judgement Link: <a href=\"https://main.sci.gov.in/supremecourt/2018/19621/19621_2018_2_1501_33620_Judgement_24-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/19621/19621_2018_2_1501_33620_Judgement_24-Feb-2022.pdf</a></b><br></p><p><b>2. The short issue arising for consideration, in this case, is whether the\r\ncondition imposed by the Railway Board circular that compassionate\r\nappointment cannot be granted to children born from the second wife of a\r\ndeceased employee is legally sustainable. Having considered the matter, we\r\nhave agreed with the counsel for the appellant that the issue is covered by the\r\njudgment of this Court in Union of India v. V.R. Tripathi, (2019) 14 SCC 646\r\n We have allowed\r\nthe appeal on this ground. We have also held that such a denial is\r\ndiscriminatory, being only on the ground of descent under Article 16(2) of the  Constitution of India. We shall first refer to the facts of the case before applying\r\nthe law for disposal of this appeal.<br></b></p><p><b>6. It is true that the matter is no more res integra. This Court in V.R.\r\nTripathi considered the very same policy and circular that arise for the consideration in the present case. </b></p><p><b>7. This Court held that the scheme and the rules of compassionate\r\nappointment cannot violate the mandate of Article 14 of the Constitution. Once\r\nSection 16 of the Hindu Marriage Act regards a child born from a marriage\r\nentered into while the earlier marriage is subsisting to be legitimate, it would\r\nviolate Article 14 if the policy or rule excludes such a child from seeking the  benefit of compassionate appointment. The circular creates two categories\r\nbetween one class, and it has no nexus to the objects sought to be achieved.\r\nOnce the law has deemed them legitimate, it would be impermissible to exclude\r\nthem from being considered under the policy. Exclusion of one class of\r\nlegitimate children would fail to meet the test of nexus with the object, and it\r\nwould defeat the purpose of ensuring the dignity of the family of the deceased\r\nemployee. This judgment has now been followed by a number of High Courts\r\nas well.</b></p><p><b>9. While compassionate appointment is an exception to the constitutional\r\nguarantee under Article 16, a policy for compassionate appointment must be\r\nconsistent with the mandate of Articles 14 and 16. That is to say, a policy for\r\ncompassionate appointment, which has the force of law, must not discriminate\r\non any of the grounds mentioned in Article 16(2), including that of descent. In\r\nthis regard, ‘descent’ must be understood to encompass the familial origins of\r\na person. Familial origins include the validity of the marriage of the parents\r\nof a claimant of compassionate appointment and the claimant’s legitimacy as\r\ntheir child. The policy cannot discriminate against a person only on the ground <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of descent by classifying children of the deceased employee as legitimate and\r\nillegitimate and recognizing only the right of legitimate descendant. Apart from\r\nthe fact that strict scrutiny would reveal that the classification is suspect, as\r\ndemonstrated by this Court in V.R. Tripathi, it will instantly fall foul of the\r\nconstitutional prohibition of discrimination on the ground of descent. Such a\r\npolicy is violative of Article 16(2).</span></b></p><p><b>12. The appeal is accordingly allowed.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p><br></p>', '2f1b4d5091782718b37ed757d4e5e50b.JPG', '800ee5103437f625c76792144a31e19b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-24', 1, '', '', '2022-02-25 01:54:52', '2022-02-25 01:58:43'),
(1357, 'PG7sr6hfxvogVMP4BUn3z3GR6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'An intermediary who introduces accused to the complainant can not be dragged into criminal proceedings unless the element of conspiracy is alleged/established. Karnataka High Court.  ', '<p><span style=\"font-weight: bolder;\">Govindaraja vs State of Karnataka and others. <br></span><b>Writ Petition 101203 of 2021 decided on 21 February 2022</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The petitioner is before this Court calling in question proceedings in Crime No.1 of 2021 registered against the petitioner for offences punishable under Sections 420, 467, 468, 464, 472 and Section 34 of the Indian Penal Code.</b><b><br></b></p><p><b>The entire proceedings, as afore-extracted if noticed, it becomes unmistakably clear that the contract was between the complainant-company and Nikat Capital and the petitioner was nowhere in the picture and rightly so, the pleading did not contain even the name of the petitioner. </b></p><p><b>It is for the first time in the complaint registered seeking to set the criminal law in motion the name of the petitioner is brought out. Till registration of the complaint on 07-01-2021, the petitioner was nowhere in the picture in any of the proceedings. The contents of the complaint (supra) would clearly indicate, with particular reference to paragraph 12, the role of the petitioner is that of an intermediary and the complainant wants to take the complaint or the transaction to its logical end. These two are the primary reasons for registering a complaint against the petitioner. The offences alleged for registration of an FIR in terms of the said complaint is as afore-extracted. Cheating and Forgery are the primary sections that are invoked in the case against the petitioner. Therefore, can an intermediary be dragged into the criminal proceedings, notwithstanding the fact that he </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">had no role to play in the transaction or contract entered into between two parties whom he had introduced, the answer is an unequivocal and an emphatic “no” for the reasons recorded hereafter.</b></p><p><b>11.<span style=\"white-space:pre\">	</span>It cannot be alleged by the complainant-company, that it is the petitioner who had induced the complainant for entering into a contract with the company at United Kingdom. It was a conscious call, with eyes wide open, taken by the complainant- company for entering into an international sales contract. For  the contract having gone wrong between the complainant- company and Nikat Capital, the petitioner cannot be held responsible.</b></p><p><b>12.<span style=\"white-space:pre\">	</span>It would have been altogether different circumstance if the allegation was that of conspiracy. If the petitioner had conspired with Nikat Capital against the alleged victim and had induced the alleged victim to enter into a contract, perhaps the allegation would at least be prima facie sustainable. As a matter of fact, the petitioner in one of the mails has clearly indicated to the complainant-company that Nikat Capital is not receiving his calls and, therefore, requested to not release any amount that is due to it. Despite this warning, the amount is released. If the petitioner was the face of everything, there could not have been a mail correspondence of warning in favour of the complainant- company. Dragging an intermediary or a facilitator into these proceedings is unavailable to the complainant-company.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">On a coalesce of the judgments relied on by the respective learned counsel what would unmistakably emerge is that  criminal proceedings cannot be interjected merely because the issue involved is civil in nature; no fetters can be placed on Section 482 of the Cr.P.C. for considering the  documents that  are placed before the Court which would go to the root of the matter; Section 482 of the Cr.P.C. should be used to advance the cause of preventing miscarriage of justice. There can be no qualm about the principles enunciated in all these cases.</b></p><p><b>In the light of the judgments of the Apex Court afore- quoted, this is a fit case for this Court to exercise its jurisdiction under Section 482 of the Cr.P.C. and obliterate all further proceedings against the petitioner.</b></p><div><br></div>', 'e78f5edccfdf87878c2db1a111e61b71.jpg', '5ad80afe0c28e1ecd622979bb099b8ae.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-24', 1, '', '', '2022-02-25 04:07:13', '2022-02-25 04:07:59');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1358, '3LZcsSao8RvoVplfQPVxXybXw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bar under Section 34 of SARFAESI Act does not apply in case of suit for declaration where clear allegations of fraud, forgery etc are made. Karnataka High Court. ', '<p><b>B.A.Varadrajachar vs The Lakshmi Vilas Bank Ltd.&nbsp;<br>Regular First Appeal 421 of 2020 decided on 15 February 2022<br></b></p><p><b><br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\"Whether the Civil Court was justified in dismissing plaintiff\'s suit as not maintainable in view of bar of jurisdiction contained in Section 34 of SARFAESI Act?\"</span><br></b></p><p><b>38.<span style=\"white-space:pre\">	</span>It is significant to note that impugned order is dismissal of suit as not maintainable. It is not an order of rejection of plaint. Hon\'ble Supreme Court in Kuldeep Singh Pathania Vs. Bikram Singh Jaryal reported in (2017) 5 SCC 345 and Madiraju Venkata Ramanaraju Vs. Peddireddigari Ramachandra Reddy reported in (2018) 14 SCC 1 held that there is a difference&nbsp; between rejection of plaint under Order VII Rule 11 and dismissal of suit as not maintainable on a preliminary issue which would fall within purview of Order XIV Rule 2 CPC.</b></p><p><b>39.<span style=\"white-space:pre\">	</span>The law regarding scope of Order VII Rule 11 is well settled. The Hon\'ble Supreme Court in Ram Prakash Gupta vs. Raghav Kumar Gupta reported in (2007) 10 SCC 59 referring to its earlier decision in T Arivandandam Vs. T. V.&nbsp; Satyapal&nbsp; reported in (1977) 4 SCC 467 has held that if on a ‘meaningful’&nbsp; and not ‘formal’ reading of the plaint cause of action or a clear right to sue is manifest, the power under Order VII Rule 11 cannot be exercised. It also held that clever drafting creating illusion of a cause of action has to be nipped in the bud. Though, provision of Order VII Rule 11(d) permits rejection of plaint,&nbsp; if it is barred&nbsp; by any law, dismissal of suit as not maintainable would fall within purview of Order XIV Rule 2 (2)(b) of CPC. Under Order XIV Rule 1, Civil Courts are required to give finding on all issues framed. But Order XIV Rule 2 can be invoked as an exception to mandate under Order XIV Rule 1 under specific circumstances.</b></p><p><b>40.<span style=\"white-space:pre\">	</span>After framing issues, if Civil Court comes to a conclusion that any of the issues would go to the root of subject matter of suit and said issues are pure questions of law, which can be answered without recording of evidence, then Order XIV Rule 2 would empower it to decide such preliminary issue forthwith.</b></p><p><b>41.<span style=\"white-space:pre\">	</span>It has however to be kept in mind that though&nbsp; provisions of Order XIV Rule 2 of CPC permit dismissal of suit on maintainability, said provision cannot be invoked where preliminary issue would be a mixed question of law and fact.</b></p><p><b>42.<span style=\"white-space:pre\">	</span>In the instant case, trial Court has held that objection raised by defendant no.2 regarding maintainability of the suit would</b></p><p><b>go to the root of the matter, accordingly proceeded to decide issue no.1. Therefore, impugned order cannot be viewed as being passed under Order VII Rule 11 of CPC. The power exercised by trial court&nbsp; is relatable to provisions of Order XIV Rule 2 of CPC. The legality of same requires to be tested accordingly.</b></p><p><b>49.<span style=\"white-space:pre\">	</span>Firstly, observation of trial court that there was no allegation of fraud against defendant no.1 would be contrary to record. As observed by trial court in impugned order itself, plaintiff had made specific allegation of fraud, concoction and creation of documents enumerated in schedule - B against defendant no.1 in collusion with defendants no. 3 to 5. Therefore, observation of trial court would be perverse.</b></p><p><b>53.<span style=\"white-space:pre\">	</span>The Hon\'ble Supreme Court in Mardia Chemical has carved out exceptions to the bar contained in Section 34 of SARFAESI Act. Hence, plaintiff made specific allegations of fraud&nbsp; and forgery against defendant no.1 and also&nbsp; against defendants no.3 to 5. He has also produced material in the form of complaint and charge sheet wherein police after investigation had invoked criminal prosecution against defendants. Investigation against defendant no.1 about its involvement being incomplete and liberty being reserved to file charge sheet after completion&nbsp; of&nbsp; investigation, same cannot be equated with discharge of defendant no.1. Regardless of criminal prosecution, it would always be&nbsp; available for plaintiff to substantiate his case by&nbsp; leading&nbsp; independent evidence.</b></p><p><b>55.<span style=\"white-space:pre\">	</span>A division bench of this Court in the case of R. Gopalakrishna Vs. Karnataka State Financial Corporation and Another reported in ILR 2008 Kar. 2034. In the instant case, the civil court proceeded to dismiss the suit as not maintainable on coming to a conclusion that no documents were produced by the plaintiff to substantiate its allegations against defendant no.1. It&nbsp; also erroneously held that there were no allegations of fraud made against officials of defendant no.1 - Bank and no charge sheet was filed against them. These findings could only be given after trial. When there is no embargo on civil court to record evidence on preliminary issue, dismissal of suit on concluding that plaintiff did&nbsp; not produce material in support of his allegation would be wholly unsustainable. At the same time, calling upon plaintiff to lead evidence to substantiate allegations of fraud would go a long way in weeding out frivolous cases and save banking institutions from lengthy trial. Such a measure would further interest of justice by balancing interests of both parties.</b></p><p><b><br></b></p><p><b>1.<span style=\"white-space:pre\">	</span>Appeal is allowed.</b></p>', '7962eee113d13ddd1d59496c9161b497.jpg', '9798720d75ff2a3d6bddfb8f72d53c3c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-24', 1, '', '', '2022-02-25 04:24:28', '2022-02-25 04:24:28'),
(1359, 'f1bM8mPv5wFrpaW6bPc0d0Col', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit based on adverse possession. A plea of acquisition of title by adverse possession can be claimed even by a plaintiff as sword under Article 65 of the Limitation Act. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Kisanpyari and others. vs The State of Karnataka and others.<br>Writ Petition 18676 of 2019 decided on 15 February 2022<br></span></p><p><b>Present writ petition is filed seeking quashment of the order dated 21.03.2019 passed in No. L.G.C.(D) No.1733/2017 by the Karnataka Land Grabbing Prohibition Special Court (hereinafter referred to as \'the Special Court\'), in and by which, the Special Court while dismissing the suit of the petitioners as not maintainable, has directed the Tahsildar, Vijayapura Taluk to initiate proceedings against the petitioners under the provisions of the Karnataka Land Grabbing (Prohibition) Act, 2011 (hereinafter referred to as \'the Act\') by filing complaint in Form No.1 within a period of one month from the date of the receipt of the order and to report the action taken in the matter.</b></p><p><b>4. The Special Court, taking note of the claim of the plaintiff for declaration based on adverse possession and also relying upon the Judgment of the Apex Court reported in DHARAMPAL (DEAD) THROUGH L.Rs VS. PUNJAB WAKF BOARD - 2018(11) SC 449) wherein it was held that the plea of adverse possession was not available to the&nbsp; plaintiff but can only be raised by the defendant by way of defence, by its order dated 21.03.2019, dismissed the suit of the petitioners as not maintainable and directed the authorities to take action as referred to above.</b></p><p><b>5. Learned counsel for the petitioners referring to the Judgment of the Apex Court in the case of RAVINDER KAUR GREWAL AND OTHERS vs. MANJIT KAUR AND OTHERS (AIR 2019 SC 3827) wherein the Apex Court over-ruling its earlier Judgment in Dharampal (dead), through L.Rs supra, has held that a suit for declaration of title and for restoration of possession on the plea of adverse possession is maintainable under Section 65 of the Limitation Act, submits that in view of the aforesaid position of law, the dismissal of suit by the Special Court was illegal. Hence, sought for allowing of the petition.</b></p><p><b>7. The Special Court without going into the merits of the case, has dismissed the suit of the&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioners solely relying upon the Judgment of the Apex Court in the case of Dharampal (dead), through L.Rs supra. However, in view of the Judgment of the Apex Court in the case of RAVINDER KAUR GREWAL supra, a plea of acquisition of title by adverse possession can be claimed by the plaintiff under Article 65 of the Limitation Act and that there is no bar under the Limitation Act, 1963, to sue on aforesaid basis in case of infringement of any rights of a plaintiff, the suit of the petitioners requires to be restored to original file.</b></p><p><b><br></b></p><p><br></p>', '6a0ad75bab108c71bc035d24f07533b5.jpg', 'fc39096f448bd35d92c86865e6640a2d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-24', 1, '', '', '2022-02-25 04:38:28', '2022-02-25 04:38:28'),
(1360, 'mgIKyeozPZyVghzb9jWY5uYaL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SARFAESI Act. Magistrate can appoint an advocate and authorise him to take possession of the secured assets and documents and to forward the same to the secured creditor. Supreme Court. ', '<p><b>NKGSB Cooperative Bank Limited vs Subir Chakravarty and others.&nbsp;<br>Civil Appeal ../2022 in S.L.P. 30240 of 2019 decided on 25 February 2022<br>Justice&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">A.M. Khanwilkar and Justice&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">C.T. Ravikumar</span></b></p><p><b>Judgement Link:<a href=\"https://main.sci.gov.in/supremecourt/2019/42547/42547_2019_33_1501_33710_Judgement_25-Feb-2022.pdf\" target=\"_blank\"> https://main.sci.gov.in/supremecourt/2019/42547/42547_2019_33_1501_33710_Judgement_25-Feb-2022.pdf</a></b></p><p><b>1. The seminal question involved in these cases is: whether it is\r\nopen to the District Magistrate or the Chief Metropolitan\r\nMagistrate to appoint an advocate and authorise him/her to take&nbsp;possession of the secured assets and documents relating thereto and\r\nto forward the same to the secured creditor within the meaning of\r\nSection 14(1A) of the Securitisation and Reconstruction of Financial\r\nAssets and Enforcement of Security Interest Act, 2002&nbsp;<br></b></p><p><b>39. It is well established that an advocate is a guardian of\r\nconstitutional morality and justice equally with the Judge. He has\r\nan important duty as that of a Judge. He bears responsibility\r\ntowards the society and is expected to act with utmost sincerity and\r\ncommitment to the cause of justice. He has a duty to the court first.\r\nAs an officer of the court, he owes allegiance to a higher cause and\r\ncannot indulge in consciously misstating the facts or for that matter\r\nconceal any material fact within his knowledge.&nbsp;In the case of harma &amp; Ors. vs. High Court of Punjab &amp; Haryana&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">AIR 1957 SC 250&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;the Court\r\nnoted that in all professional functions, an advocate should be\r\ndiligent and his conduct should conform to the requirements of the\r\nlaw by which he plays a vital role in the preservation of society and\r\njustice system. As an officer of the court, he is under a higher\r\nobligation to uphold the rule of law and justice system.&nbsp;</span></b></p><p><b>42. Whereas, applying the “functional subordination” test, we are\r\npersuaded to take the view that sub-Section (1A) of Section 14 of the\r\n2002 Act is no impediment for the CMM/DM to engage services of\r\nan advocate (an officer of the court) — only for taking possession of\r\nsecured assets and documents relating thereto and to forward the\r\nsame to the secured creditor in furtherance of the orders passed by\r\nthe CMM/DM under Section 14(1) of the 2002 Act in that regard. It\r\ndoes not follow that the advocate so appointed needs to be on the\r\nrolls in the Office of the CMM/DM or in public service. There is\r\nintrinsic de jure functional subordinate relationship between the&nbsp;CMM/DM and the advocate being an officer of the court. The\r\napprehension of the borrowers about improper execution of orders\r\nof the CMM/DM passed under Section 14(1) of the 2002 Act by the&nbsp;Advocate Commissioner, is plainly misplaced. Further, being an\r\nofficer of the court and appointed by the CMM/DM, the acts done by\r\nthe Advocate Commissioner would receive immunity under Section\r\n14(3) of the 2002 Act — as an officer authorised by the CMM/DM.\r\nThere is no reason to assume that the advocate so appointed by the\r\nCMM/DM would misuse the task entrusted to him/her and that will\r\nnot be carried out strictly as per law or it would be a case of abuse\r\nof power. Rather, going by the institutional faith or trust reposed on\r\nadvocates being officers of the court, there must be a presumption\r\nthat if an advocate is appointed as commissioner for execution of the\r\norders passed by the CMM/DM under Section 14(1) of the 2002 Act,\r\nthat responsibility and duty will be discharged honestly and in\r\naccordance with rules of law.</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></p>', 'c68f339a6351cf3885db7dbea6482f43.jpg', '95564acc375ffa610badb09a12f0f6c0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-26', 1, '', '', '2022-02-26 06:12:27', '2022-02-26 06:12:27'),
(1361, '7OkMC67PXPBCR7RsXUbkJ54eK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Public Interest Litigation initiated under the shadow of reasonable suspicion - Court may decline to entertain claims on merits or appoint an amicus curiae if the cause espoused requires immediate attention of the Court. Supreme Court. ', '<p><b>Esteem Properties Pvt Ltd vs Chetan Kamble and others.&nbsp;<br>Civil Appeal 10425 of 2010 decided on 28 February 2022<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Chief Justice N.V. Ramana, Justice A.S. Bopanna and Justice Hima Kohli<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgement Link:&nbsp;<br><a href=\"https://main.sci.gov.in/supremecourt/2010/15911/15911_2010_31_1501_33582_Judgement_28-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2010/15911/15911_2010_31_1501_33582_Judgement_28-Feb-2022.pdf</a></b></p><p><b>21. Public Interest Litigation is not a new concept in this Court. Although&nbsp; &nbsp;the&nbsp; &nbsp;jurisprudence&nbsp; &nbsp;in&nbsp; &nbsp;this&nbsp; &nbsp;regard&nbsp; &nbsp;has&nbsp; matured, many claims filed in the Courts are sometimes immature. Thousands of frivolous petitions are filed, burdening the docket&nbsp; &nbsp;of&nbsp; &nbsp;both&nbsp; &nbsp;this&nbsp; &nbsp;Court&nbsp; &nbsp;and&nbsp; &nbsp;the&nbsp; &nbsp;High&nbsp; &nbsp;Courts.&nbsp; &nbsp;Noble intentions&nbsp; &nbsp;behind&nbsp; &nbsp;expanding&nbsp; &nbsp;the&nbsp; &nbsp;Court’s&nbsp; jurisdiction&nbsp; &nbsp;to accommodate socially relevant issues, in recent decades, have been critically analyzed. In our view, PIL litigation has had a beneficial effect on the Indian jurisprudence and has alleviated the conditions of the citizens in general. For those at the receiving end of the Court’s directions, we can only advise “C’est la vie\".&nbsp;</b></p><p><b>22. One of the measures this Court can adopt to ensure that frivolous or private interests are not masqueraded as genuine claims, is to be cautious when examining locus standi. Generally, PIL, being a summary jurisdiction, has limited powers to examine the&nbsp; bonafides&nbsp; of parties. It is usually on the pleadings that the Court should take a prima facie&nbsp; view on the&nbsp; bonafides&nbsp; of the party.&nbsp; &nbsp;If the Court concludes that the litigation was initiated under the shadow of&nbsp; reasonable suspicion, then the Court may decline to entertain the claims on merits. In these cases, Courts have multiple options – such as dismissing the PIL or appointing an amicus curiae, if the cause espoused in the case requires the&nbsp; immediate attention of the Court.&nbsp; &nbsp;[refer&nbsp; T.&nbsp; &nbsp;N. Godavarman&nbsp; &nbsp;Thirumulpad&nbsp; &nbsp;v.&nbsp; Union&nbsp; &nbsp;of&nbsp; India. (2006) 5 SCC 28].</b></p><p><b>24. In&nbsp; Jaipur&nbsp; &nbsp;Shahar&nbsp; &nbsp;Hindu&nbsp; &nbsp;Vikas&nbsp; &nbsp;Samiti&nbsp; &nbsp;v.&nbsp; &nbsp;State&nbsp; &nbsp;of Rajasthan, (2014) 5 SCC 530, this Court reiterated the same, specifying that the concept of public interest litigation has evolved to bring justice to people who are “handicapped by ignorance, indigence, illiteracy” and observed that Courts are&nbsp; &nbsp;required&nbsp; &nbsp;to&nbsp; &nbsp;be&nbsp; &nbsp;cautious&nbsp; &nbsp;while&nbsp; &nbsp;entertaining&nbsp; &nbsp;such litigation.</b></p><p><b>25. From&nbsp; &nbsp;the&nbsp; &nbsp;above&nbsp; &nbsp;it&nbsp; &nbsp;is&nbsp; &nbsp;clear&nbsp; &nbsp;that&nbsp; &nbsp;the&nbsp; bonafides&nbsp; of&nbsp; &nbsp;the respondent nos. 1 and 2 were not considered in a proper perspective by the High Court. Even otherwise, it is this Court’s opinion that the PIL petitioners had no reason to file a&nbsp; &nbsp;public&nbsp; &nbsp;interest&nbsp; &nbsp;litigation&nbsp; &nbsp;when&nbsp; the&nbsp; &nbsp;subject&nbsp; matter&nbsp; was evidently a title claim between a private party and the State.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b>&nbsp;</b></p>', '1fe1c50a815ff1171121fbb8ee1967ab.jpg', '70d916bba0acd12ce3b6305ae8cbf6e5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-28', 1, '', '', '2022-03-01 00:42:09', '2022-03-01 00:43:31'),
(1362, 'ymSobVlKW2kvjXJK0EdYXQ6Wi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Writ for specific performance of contract/work order cannot be issued in a writ petition under Article 226 of the Constitution of India when there are disputed questions of fact. Supreme Court. ', '<p><span style=\"font-weight: bolder;\">Municipal Council Gondia vs </span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Divi Works & Suppliers, HUF & Ors.<br></span><b>Civil Appeal 1538 of 2022 decided on 28 February 2022<br>Justice M.R. Shah and Justice B.V. Nagarathna<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgement Link:<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"https://main.sci.gov.in/supremecourt/2021/17888/17888_2021_42_1501_33779_Judgement_28-Feb-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/17888/17888_2021_42_1501_33779_Judgement_28-Feb-2022.pdf</a></b></p><p><b>1. Feeling   aggrieved   and   dissatisfied   with   the   impugned judgment and order dated 05.01.2021 passed by the High Court of Judicature at Bombay, Nagpur Bench at Nagpur in W.P. No.1984 of 2020, by which, the High Court has allowed the said writ petition preferred by respondent No.1 & 2 herein – original writ petitioners (hereinafter referred to as the original writ petitioners) and has quashed and set aside the action on the part of the appellant in cancelling the work order and by which the High Court has held that original writ petitioner No.1 is entitled to make the supply in pursuance of the work order dated 07.02.2020 to the appellant   herein   and   consequent   to   which   it   will   be entitled to the payments as per the terms of the work order,   original   respondent   No.2   –   Municipal   Council, Gondia through its Chief Officer has preferred the present appeal. </b></p><p><b>8. At   the   outset,   it   is   required   to   be   noted   that   by   the impugned judgment and order the High Court has issued a writ of mandamus virtually granting the relief of specific performance   of   the   contract/work   order.   From   the impugned judgment and order passed by the High Court it appears that the High Court was made to believe that the original   writ   petitioners   had   already   manufactured   the goods which are customized and as per the specifications and the work order. However, it is now found that there are no manufactured goods readily available which can be supplied to the appellant – Council. There are disputed questions of fact such as whether in fact the goods were manufactured as per the specifications or not. Nothing was on record before the High Court that goods were in fact and actually manufactured by the original writ petitioner No.1, as per the specifications and the requirements of the Council and as per the work order. In absence of any evidence and material on record and there being disputed questions of facts the High Court ought not to have passed the impugned judgment and order directing the Council to continue the work order and accept the goods from the original writ petitioner No.1 and to make the payments as per the work order. Even otherwise, no writ of mandamus could   have   been   issued   virtually   granting   the   writ   for specific performance of the contract/work order in a writ petition under Article 226 of the Constitution of India. The original writ petitioners ought to have been relegated to file a civil suit for appropriate relief of losses/damages, if any, sustained. </b></p><p><b>8.1 Even otherwise on merits also the High Court has erred in setting  aside  the communication  dated 18.05.2020  and 07.07.2020.  The High Court has not at all appreciated the reasons   for   suspending/cancelling   the   work   order   till further orders. It is to be noted that the decision dated 07.07.2020   was   taken   pursuant  to   the   G.R.   dated 04.05.2020   which   was   necessitated   due   to   Covid­19 Pandemic and there was a lockdown and the schools were closed and that the Council had no sufficient funds. Even the said decision was taken after calling for a report from the Education Officer in regard to the tender/work order issued   to   the  original   writ   petitioner   No.1   and   the Education Officer informed that the original writ petitioner No.1 has not taken any further steps in regard to supply of material as per the work order. Therefore, the High Court has   erred   in   quashing   and   setting   aside   the communication   dated   07.02.2020   in   exercise   of   powers under Article 226 of the Constitution of India.  </b></p>', 'ab2d1f7850b0f21a6a3ff602abbf708c.jpg', '5311b1579ecf8a051c82b86d50b14473.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-28', 1, '', '', '2022-03-01 01:04:17', '2022-03-01 01:08:41'),
(1363, '3te4iLh23TBvRhUBvByspiN8c', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration & Conciliation Act. Even when limitation period to challenge arbitral award under Section 34 expired during closure/vacation of Courts, provisions of Section 4 of the Limitation Act cannot be invoked by the applicant. Karnataka High Court. ', '<p><b>Bhimashankar Sahakari Sakkare Karkhane Niyamita vs Walchandnagar Industries Ltd. </b></p><p><b>Miscellaneous First Appeal 201018 of 2018 decided on 23 February 2022</b></p><p><b>Justice S.R. Krishna Kumar and Justice K.S. Hemalekha</b></p><p><b>This appeal is directed against the impugned judgments and orders dated 02.04.2018 passed in Arbitration Application No.2/2017 by the III Additional District Judge, Vijayapura (for short, ‘the Trial Court’) whereby the interlocutory application I.A.No.1 and the additional affidavit filed by the appellant for condonation of delay under Section 5 of the Limitation Act 1963 (for short, ‘the Limitation Act’) were dismissed by the Trial Court which consequently also dismissed the aforesaid Application No.2/2017 filed by the appellant under Section 34 of the Arbitration and Conciliation Act, 1996 </b></p><p><b>22. In the case of P.Radha Bai and others vs P.Ashok Kumar and another – AIR 2018 SC 5013, the Apex Court held that Section 34(3) reflects the principle of un- breakability, i.e., the period of limitation under Section 34(3) is ‘unbreakable’ and is meant to run continuously; it was held that once a party receives the arbitral award, the limitation period under Section 34(3) commences. In the light of the aforesaid facts and circumstances of the case which clearly establish that the period of limitation under Section 34(3) of the said Act of 1996 commenced from 24.08.2016 on which date the Appellant undisputedly received the arbitral award, merely because the appellant is said to have misplaced the award and obtained a fresh copy (that too on 29.12.2016), after the maximum period of 120 days commencing from 24.08.2016, none of the contentions urged in the additional affidavit could have been relied upon by the appellant in order </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to contend that there was no delay in filing the Section 34 application/petition or that the delay deserves to be condoned.</b></p><p><b>23. As rightly contended by the learned counsel for the respondents, the contentions and allegations put forth in I.A.No.1 and its accompanying affidavit were mutually inconsistent, contradictory and destructive to the additional affidavit which was a clear after thought having been filed on 13.01.2018 after a lapse of more than one year from 02.01.2017 when the Section 34 application/petition was filed by the appellant. While dealing with the aforesaid additional affidavit, the Trial Court has come to the correct conclusion that the said additional affidavit was nothing but a vain attempt on the part of the appellant to nullify the earlier admission of facts which were already on record in the affidavit in support of I.A.No.1; that no compelling circumstances or genuine reasons were shown as to why an additional affidavit was sought to be filed which was contrary to the earlier affidavit; that filing of the additional affidavit was merely an attempt by the  appellant to  alter  or  modify  the  statement  of admission already on record in the affidavit in support of I.A.No.1 which was not permissible in law; that appellant had failed to invoke any statutory provision or cite any precedent which permits him to file the aforesaid additional affidavit which was contrary to the contents of the earlier affidavit. In our considered opinion, the impugned order passed by the Trial Court dismissing the additional affidavit does not suffer from any illegality or infirmity nor can the same be said to be perverse or erroneous warranting interference by this Court and consequently, the Trial Court was fully justified in dismissing the said additional affidavit. Point No.1 is accordingly answered against the appellant.</b></p><p><b>25. The question with regard to applicability of Section 5 of the Limitation Act to a Section 34 application/petition in the light of Section 29(2) of the Limitation Act is no longer res integra in the light of several decisions of the Apex Court, this Court and other High Courts commencing from the decision in the case of Union of India vs. Popular Construction Co. – (2001) 8 SCC 455 and reiterated in the recent decision of the Three Judge Bench of the Apex Court in the case of Mahindra and Mahindra Financial Services Ltd. Vs.  Maheshbhai  Tinabhai  Rathod and others- 2021 SCC Online SC 1315 wherein it has been consistently held that Section 5 of the Limitation Act was not applicable to an application/ petition against an arbitral award which was filed beyond the period of 120 days (90 days + 30 days) as contemplated under Section 34 (3) of the said Act of 1996. It was also held that the applicability of Section 5 of the Limitation Act to Section 34 application/petition was excluded as provided under Section 29 (2) of the Limitation Act and consequently, the Trial Court dealing with Section 34 application/petition did not have jurisdiction or authority of law to entertain any application/petition filed beyond the period of 120 days. In view of the law laid down by the Apex Court and the aforesaid facts and circumstances, we are of the considered opinion that Section 5 of the Limitation Act is not applicable to an application/petition filed by a party challenging an arbitral award under Section 34 (3) of the Arbitration Act Conciliation Act, 1996 and the Court before whom such an application is filed does not have jurisdiction or authority of law to entertain any application/petition filed beyond the period of </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">120 days (90 days + 30 days) from the date of receipt of a copy of the arbitral award.</b></p><p><b>26. The next question that arises for consideration is as to whether Section 4 of the Limitation Act and/or Section 10 of the General Clauses Act would be applicable to an application/petition filed under Section 34 of the said Act of 1996. As stated supra, the arbitral award having been passed on 24.08.2016, the period of 90 days expired on 24.11.2016 whilst the extended/discretionary/condonable period of 30 days as contemplated in the proviso to Section 34 (3) of the said Act of 1996 expired on 24.12.2016 on which day the Trial Court was closed for Winter/Christmas Vacations; it is the specific contention of the appellant that it was physically impossible for the appellant to file a Section 34 application/petition after 19.12.2016 on account of the Courts being closed due to Winter/Christmas Vacations and consequently, the appellant would be entitled to the benefit of Section 4 of the Limitation Act which enables/entitles the appellant to file the said Section 34 application/petition on the </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reopening day; it is therefore contended that in view of the undisputed fact that the prescribed period of 30 days being the extended/discretionary/condonable period expired on 24.12.2016 on which day the Trial Court was closed on account of Winter/Christmas Vacations, the appellant was fully entitled to file the Section 34 application/petition when the Court reopened on 02.01.2017 and as such, the said application/petition was perfectly legal, proper and maintainable in law.</b></p><p><b>27.<span style=\"white-space:pre\">	</span>A perusal of the impugned order will indicate that the Trial Court has placed reliance upon the decision of the Apex Court in Assam Urban Water Supply\'s case supra, wherein while dealing with applicability of Section 4 of the Limitation Act to the extended/discretionary/condonable period of 30 days contained in the proviso to Section 34 (3) of the said Act of 1996.</b></p><p><b>28. The said decision was reiterated by a 3 Judge Bench of the Apex Court which also dealt with Section 10 of the General Clauses Act in the case of Sagufa Ahmed and others  vs  Upper  Assam  Polywood  Products  Private Limited and others – (2021)2 SCC 317 </b></p><p><b>30. In view of the law laid down in the aforesaid decisions, we are of the considered opinion that both Section </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4 of the Limitation Act and/or Section 10 of the General Clauses Act are not applicable to the extended/ discretionary </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">/condonable period of 30 days contained in the proviso to Section 34 (3) of Arbitration and Conciliation Act, 1996.</b></p><p><b>32. In this context it is relevant to state that in the aforesaid order in Suo Moto Writ Petition (Civil) No.3/2020 dated 08.03.2021, the Apex Court held as under:</b></p><p><b><i>“3. The period from 15.03.2020 till 14.03.2021 shall also stand excluded in computing the periods prescribed under Section 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the Court or Tribunal can condone delay) and termination of proceedings.”</i></b></p><p><b>33.<span style=\"white-space:pre\">	</span>As can be seen from the aforesaid order passed by the Apex Court, in view of specific reference only to Sections 23 (4) and 29A of the said Act of 1996, it is clear that the Apex Court was neither dealing with a Section 34 application/petition nor come to the conclusion that the exclusion of the period of 30 days as contemplated in the proviso to Section 34 (3) was permissible on account of the Covid-19 Pandemic; further, in addition to the fact that the Apex Court was dealing with limitation being extended/ </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">excluded/condoned on account of the Covid-19 Pandemic, the applicability of the said exclusion was not extended by the Apex Court to a Section 34 application/petition which was filed prior to the Covid-19 Pandemic; on the other hand, in Sagufa Ahmed\'s case supra, the Apex Court has not only affirmed its earlier decision in Assam Urban Water Supply\'s case supra, but has also held that neither Section 4 of the Limitation Act and/or Section 10 of the General Clauses Act are applicable to a Section 34 application/petition filed after expiry of the extended/condonable/discretionary period of 30 days as contemplated in the proviso to Section 34 (3) of the said Act of 1996. In other words, if the period of 90 days as provided in Section 34 (3) of the said Act of 1996 expires on a day on which the Court is closed, the period during which the court is closed would stand excluded and a party would be entitled to file an application on the reopening day without any necessity of seeking condonation of delay in view of Section 4 of the Limitation Act and/or Section 10 of the General Clauses Act. However, if the extended/discretionary/ condonable period of </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">30 days as contemplated in the proviso to Section 34 (3) of the said Act of 1996 expires on a day on which the court is closed, a party would not be entitled to the benefit of Section 4 of the Limitation Act and in the event the said period of 30 days expires during the period when the court is closed, a party cannot take recourse to Section 4 of the Limitation Act and/or Section 10 of the General Clauses Act and file a Section 34 application/petition after the Court reopens and an application seeking condonation of delay under the proviso to Section 34 (3) would not be maintainable; needless to state that as held in the aforesaid decisions, since neither Section 5 of the Limitation Act and/or Section 10 of General Clauses Act is applicable, any Section 34 application/petition filed after the expiry of the extended/discretionary period of 30 days which expires on a day the Court is closed would not be maintainable on the reopening day.</b></p><p><b>34.<span style=\"white-space:pre\">	</span>In view of the aforesaid facts and circumstances and decisions referred to supra, we are of the considered opinion that the impugned order passed by the Trial Court </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dismissing the application for condonation of delay and consequently the Section 34 application/petition does not suffer from any illegality or infirmity warranting interference by this Court in the present appeal. </b></p>', '855dd5c3bca1140a199b8def36e82435.JPG', '9c2eb0bc5b6ec04a31991eb756053d98.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-28', 1, '', '', '2022-03-01 02:11:53', '2022-03-01 02:18:20'),
(1364, '5xUeCXOxKok21upGE1g4JKNQL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Corruption is a cancer eating social and economic health of the society. When a true complainant takes recourse to legal battle, his testimony can\'t be disbelieved on flimsy reasons. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Padmanabha vs The State of Karnataka <br>Criminal Appeal 200043 of 2015 decided on 9 February 2022</span></p><p><b>2. The present appeal is filed by the accused who has been convicted in Special Case (LOK) No.11/2010 by the Special Judge, Principal Sessions Judge, Vijayapur, for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act.</b></p><p><b>61. Corruption is a distinct type of offence. It is like a cancer to the society. It eats the social and economical health every second resulting in unimaginable consequences. It is only few officers of the Government misuse their official position forgetting their duty and loyalty to the State, resulting in eroding the economy of the country at large. It is often said that world is not suffering from \'violence of many\'; but is suffering from \'silence of many\'. Therefore, when a  true  complainant has taken recourse to the legal battle, his testimony cannot be disbelieved on flimsy reasons. The court has to take a pragmatic approach in appreciating the material evidence on record in a particular case.</b></p><p><b>62. Keeping this in the background when the material evidence on record is analyzed, the prosecution having established that the accused demanded illegal gratification in respect of release of lorry bearing No.CG- 04/DA-2645 which was intercepted by Ananthanarayana on 7.12.2008 and the tainted money having been recovered from the custody of the accused, colour test having stood positive coupled with the explanation offered by the accused being not capable of believing, this court is of the considered opinion, that prosecution is successful in establishing all ingredients to attract the aforesaid offences.</b></p><p><b>63. Therefore, the finding recorded by the learned trial judge that accused is guilty of the aforesaid offences is not suffering from legal infirmity or perversity. Accordingly, Point No.1 is answered in the Affirmative and Point No.2 in the negative.</b></p><p><b>Learned  trial  judge has awarded simple imprisonment for 2½ years for Section 7 of the Act and awarded fine of Rs.1 lakh, with default sentence of simple imprisonment for one year; whereas minimum punishment available for Section 7 of the Prevention of Corruption Act is three years. State has not preferred any appeal against the inadequacy of the sentence. Therefore, hands of this court are tied in enhancing the imprisonment period in the appeal filed by the accused.</b></p><p><b>65. Further, for the offence under Section 13(1)(d) of the Prevention of Corruption Act, the Trial Court has sentenced the accused to undergo simple imprisonment for four years and imposed fine of Rs.1,50,000/-. Since both the sentences are ordered to run concurrently, the mistake crept in while passing the inadequate sentence for the offence punishable under Section 7 of the Act would get into insignificance would only remain on record as an academic in nature.</b></p><p><b>The Criminal Appeal is dismissed.</b></p>', '1c46bc795194e51e7ea3243fd4e357f5.jpg', 'e0f8d20668786a8cc9c0d65661b0f84c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-28', 1, '', '', '2022-03-01 02:46:27', '2022-03-01 02:47:35'),
(1365, 'rnZNqSRa74zGpMMrfh9dzVe5M', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'State or instrumentality of State cannot exploit labour of helpless employees for decades and then refuse to regularise their services quoting financial burden\'\'. Karnataka High Court orders regularisation of Bangalore University employees.', '<p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Hanumantharayappa V vs The Principal Secretary and another. </b><br></p><p><b>Writ Petition 9310 of 2016 decided on 28 February 2022</b></p><p><b>17. As observed hereinabove, the Apex Court rendered its judgment in the case of UMADEVI on 10-04-2006. Relevant paragraphs are already quoted hereinabove. Subsequent to the judgment of the Apex Court in the case of UMADEVI, considering the case of UMADEVI the Apex Court in several judgments held and affirmed the right of several employees for regularization under several circumstances. </b></p><p><b>On a coalesce of the judgments rendered by the  Apex Court  in  the afore-extracted cases which were in the aftermath of the judgment in the case of UMADEVI would in unmistakable terms indicate that regularization of employees is not a concept that is obliterated, but could be considered on several parameters laid down in the said judgments.  One  unmistakable  stream  that  runs through judicial thinking of judgments of the Apex Court is that regularization  of employees engaged to work for the  State  for long years should be considered, failing which it  would amount to violation of Article 14 of the Constitution of India.</b></p><p><b>18. In my considered view, if the claim of the petitioners for regularization is not considered, it would be leaving such employees in the lurch after having  extracted work from  them  for close to 24 years. The services of these petitioners have been utilized in their energetic youth, have  travelled  this  far and  are at this age, if they are not now considered for regularization, it would amount to exploitation of such labour from the hands of  the University, a State under Article 12 of the Constitution of India. Such action would not behove the status of a State under the Constitution of India. It is not the University that is now wanting to deny the benefit of regularization, but it is the State Government which is declining to accept their claim on an irrelevant plea of financial burden of rupees one crore thirty six lakhs.</b></p><p><b>19. It is trite law that there is no concept of negative equality, so to say, that if a mistake is committed by regularizing illegal appointments, the same cannot be directed to be done at the hands of this Court. It is the case of neither that it is  a mistake, several employees of the very University have been correctly regularised. They were all appointees like that of the petitioners. They were all regularised following the judgment of the Apex Court in the case of UMADEVI. The same treatment is not meted to the petitioners. Parity in such regularization is  also  a concept that is considered by the Apex Court in several cases.   To quote a few, are in the cases of DHANANJOY KARMAKAR v. STATE OF W.B. </b></p><p><b>The Apex Court in the afore-extracted judgments has deprecated the action of the State adopting such policy that denies regularization. The Apex Court in the case of CENTRAL ADMINISTRATIVE TRIBUNAL holds that employees who had completed 10 years of service on the date of  promulgation  of  such Rules had to be regularised on the ground of parity. Therefore, the concept of parity is also recognized by the Apex Court in the cases of regularization of employees as quoted hereinabove. In the facts of the cases as  narrated  hereinabove and the judgments referred to (supra), the  petitioners  are entitled to claim  the benefit of regularization and the University  is obliged to consider the same in accordance with law.</b></p><p><b>24. Ergo, on a coalesce of the afore-narrated facts; the law laid down in the case of UMADEVI and its aftermath; the correspondences/recommendation/proposal of the University to the State, would all lead to an unmistakable inference that the petitioners who were all appointed by the University close to 20 years ago, have continued to work, in and for the University without any break, and never on the strength of any  interim  order granted by any judicial fora. In their heydays these petitioners have toiled to serve the University on receiving even paltry sums as salary. The need of these employees by the University is time and again recognised in the communications/proposals for such regularization. If their cases are not considered at this juncture, it would be an arbitrary  action, violative of Article 14 of the Constitution of India and would result in leaving the employees in the  lurch.  The  buoyancy of hope that the petitioners have all along carried with </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">them should not again be turned by the respondents into  a  fatigue of despair. The State and the University cannot display a hands-off to their obligation, to consider the cases of the petitioners.</b></p><p><b>The Writ Petitions are allowed.</b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '8b8410ffc27649028c5e7c60df34e3f7.jpg', '199195916c68c7ae850eb6a3271f5a59.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-02-28', 1, '', '', '2022-03-01 03:18:33', '2022-03-01 03:20:26');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1366, 'up5BlwOF1ERz3PCnYpPDBRUbG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Question of violation of of building bye-laws or plan etc are within the exclusive jurisdiction of the planning authorities. Civil Court cannot try these aspects in a civil suit. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Kasturi and others vs Kadappa&nbsp;<br></span><b>Miscellaneous First Appeal 537 of 2013 decided on 16 February 2022</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The captioned miscellaneous second appeal is filed by the appellants/defendants questioning the judgment and decree dated 31.01.2013 passed by the Fast Track Court, Jamakhandi, in R.A.No.25/2008 in remanding the matter to the trial Court for fresh consideration.</b><b><br></b></p><p><b>12.<span style=\"white-space:pre\">	</span>This Court is of the view that the officials of the Karnataka Municipal Authorities and Town Planning Authorities are not at all necessary parties and their presence is not at all required to effectively adjudicate the claim of plaintiff and defendants over the common wall. The plaintiff is required to establish his exclusive right over the \"AB\" wall. In the present case on hand, the plaintiff is alleging that “AB” wall is his&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">exclusive wall and therefore, he is alleging that construction is by encroaching upon his property. Secondly, it is also contended that construction put up by the appellants/defendants towards front portion of his property facing road. Both the properties are facing road. As rightly contended by the counsel for the appellants/defendants, the authorities vested with power to examine any construction in violation of the building bye-laws and there is a remedy under Section 187(7)((b)(i)(ii) of the Karnataka Municipalities Act, 1964 and it is the Municipal Commissioner who is vested with power, on satisfaction, to take any action against any construction or erection of a building in contravention of building bye-laws and this remedy available under Section 187(9)(a) of the Karnataka Municipalities Act, 1964. This remedy is independent remedy and the same is available under the provisions of Karnataka Municipalities Act, 1964. The first appellate court by directing the respondent/plaintiff to implead the officials of Karnataka Municipality authorities and Town Planning authorities has virtually usurped over the jurisdiction of authorities under the provisions of Karnataka Municipalities Act, 1964. The issue relating to deviation of construction and building in contravention of bye-laws has to be independently examined by the officials and not by civil court.</b></p><p><b>13.<span style=\"white-space:pre\">	</span>Section 9 of CPC provides that courts shall (subject to the provisions contained therein), has jurisdiction to try all suits of civil nature except suits in respect of which taking of cognizance is expressly or impliedly barred. Thus, the jurisdictional of civil courts embraces all disputes except to the extent it is excluded by express provision of law or by clear and unambiguous intendment arising from such law. Section&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">187 of Karnataka Municipalities Act, 1964 clearly amounts to ouster of jurisdiction of civil court. The said Act is self- contained code and provides an independent mechanism. In Lalaram&nbsp; Swarup&nbsp; and&nbsp; Ors.&nbsp; Vs.&nbsp; Shikar&nbsp; Chand&nbsp; and&nbsp; Anr.1966 SC 893,&nbsp; a&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Constitution Bench of Apex Court has formulated following tests:</b></p><p><i><b>“The two tests, which are often considered relevant in dealing with the question about the exclusion of civil courts’ jurisdiction are (a) whether the special statute which excludes such jurisdiction has used clear and unambiguous words indicating that intention, and (b) does not statute provide for an adequate and satisfactory alternative remedy to a party that may be aggrieved by the relevant order under its material provisions. Applying these tests the inference is inescapable that the jurisdiction of the civil courts is intended to be excluded.</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The bar excluding the jurisdiction of civil courts cannot operate in cases where the plea raised before the civil court goes to the root of the matter and would, if upheld, lead to the conclusion that the impugned order is a nullity.”</b></i></p><p><b>14.<span style=\"white-space:pre\">	</span>The first appellate court by remand intends to find out as to whether the appellant/defendant has violated building bye-laws and as to whether there is any deviation. Construction in violation of building bye-laws, any frontal projection to the building are squarely covered under Section 187 of the Karnataka Municipalities Act, 1964. Therefore, the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">finding of the first appellate court that the matter requires de novo trial and the plaintiff has to implead Chief Officer, TMC, Jamakhandi and Secretary of Town Planning Authority on the ground that they are necessary parties to the suit and further finding that the trial court has to appoint a technical person to secure an report are squarely covered under the above said section. The statutory right of an authority to deal with constructions either in excess of permissible floor area or violation in regard to setback are issues which are totally vested with the authorities under the provisions of Karnataka Municipalities Act, 1964. Therefore, aforesaid finding recorded by the first appellate court is palpably erroneous, perverse and the said observation made by the first appellate court are hit by Section 9 of CPC.&nbsp;</b></p><p><b>15.<span style=\"white-space:pre\">	</span>It is in this background, I am of the view that directions of the first appellate court to implead the officials of local authorities is one without jurisdiction and the said finding is palpably erroneous and suffers from perversity. By directing to implead the officials of local authorities, the first appellate court has virtually expanded the scope of enquiry which was unwarranted.</b></p><p><b>The miscellaneous second appeal is allowed.</b></p>', '889536e9e514333874e0a619f5bb04a6.jpg', '4fab342debb731e45cb9db695a054928.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-01', 1, '', '', '2022-03-01 18:06:00', '2022-03-01 18:06:00'),
(1367, '7vvo4ocOEnx6aQ8ZGu2W8SbNr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Maintenance awarded under the Domestic Violence Act can NOT be enhanced under Section 127 of the Criminal Procedure Code. Karnataka High Court.', '<p><b>Shivanand vs Basavva </b></p><p><b>Criminal Petition 101378 of 2019 decided on 17 February 2022</b></p><p><b>7. I have given my anxious consideration to the submissions made by the learned counsel appearing for the petitioner and perused the material on  record.  In furtherance whereof, the only issue that falls for my consideration is,  </b></p><p><b><i>“Whether  the  maintenance  awarded under the Domestic Violence Act can be sought to be enhanced under the Cr.P.C.?”</i></b></p><p><b>Section 125 of the Cr.P.C. enables the wife to seek maintenance at the hands of the husband inter  alia.  Invoking this provision, the learned Magistrate can award maintenance. Section 127 of the  Cr.P.C.  deals  with  alteration in allowance. A maintenance that is awarded  under Section 125 of the Cr.P.C. can be varied in an application filed under Section 127 of the Cr.P.C.  What  is sine qua non is that an order of maintenance should precede a petition under Section 127 of the Cr.P.C., failing which, a </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petition under Section 127 of  the  Cr.P.C.  seeking enhancement of maintenance is not available.</b></p><p><b>11. It is an undisputed fact that the respondent-wife invoked the provisions of the Act in which maintenance was awarded. It is also an admitted  fact  that  there  is  no  proceeding initiated by the respondent-wife invoking Section </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">125 of the Cr.P.C. Therefore, without there being any determination of maintenance under Section 125 of the Cr.P.C., petition under Section 127 of the Cr.P.C. is not maintainable.</b></p><p><b>12. The language employed in Section 127 of the Cr.P.C. is unequivocal as on a proof of change in the circumstances of any person receiving allowance under Section 125 of Cr.P.C. can maintain a petition under Section </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">127 of the Cr.P.C. A proceeding under Section 125 of the Cr.P.C. therefore should precede a proceeding under Section 127 of the Cr.P.C.</b></p><p><b>13. The fact that provisions of Act was invoked for grant of maintenance and provisions of Cr.P.C. are invoked seeking enhancement  of  maintenance  cannot  be  countenanced in law. Therefore, the order passed  by  the  learned  Magistrate  enhancing  maintenance  under   Section  127 of the Cr.P.C. was without  jurisdiction  and  a  nullity  in  law. The foundation being  a  nullity in  law,  a  super  structure to it affirming the order of the learned Magistrate, by the  learned Sessions Judge will have to follow suit – is to be  declared a nullity in law.</b></p><p><b>The Criminal Petition is allowed.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '41ca1d81400dcc28ff545e0a06385aa1.jpg', '9ba85f606d4944245b101c09c1c9ffa4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-01', 1, '', '', '2022-03-01 18:29:20', '2022-03-01 18:30:08'),
(1368, '2q0lVtxWmlf6Cfs4VDkx9YEIN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Grant of interim compensation under Section 143-A of the Negotiable Instruments Act is NOT mandatory. Court must apply its mind and record reasons to grant interim compensation. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Vijaya vs Shekharappa and another&nbsp;<br></span><b>Criminal Petition 100261 of 2022</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">A strange transaction is brought before this Court in which the complainant claims to have lent to the accused a sum of rupees two crores by cash in two thousand rupees denomination and the cheque alleged to have issued by the accused is dishonoured. In respect of rupees two crores transaction in cash, the trial Court invoking Section 143-A of the Negotiable Instruments Act, 1881 grants interim compensation of Rupees forty lakhs to be paid by the accused to the complainant. The consequence of this order is what drives the accused to this Court&nbsp;</b><br></p><p><b>7. The afore-narrated facts are not in dispute. The issue is not with regard to validity of the cheque or otherwise. The only issue that falls for my consideration is whether the Criminal Court hearing C.C.No.67 of 2021 could have passed the order directing payment of 20% without recording any reason for grant of such interim compensation.</b></p><p><b>8. The Act was amended by the Amendment Act of 2018. It is by way of this amendment Section 143A came to be inserted.&nbsp;</b></p><p><b>9. This amendment has come into force with effect from 1.9.2018 on its publication in the official gazette. The purport of the amendment is that the Court may in certain circumstances award interim compensation which shall not exceed 20% of the amount of the cheque and such interim compensation can be permitted to be withdrawn in terms of the said amendment. It is invoking the afore-quoted provision of law an application was filed by the complainant seeking interim compensation of 20% of the amount involved.&nbsp;</b></p><p><b>10. The afore-extracted order passed by the Court does not bear reason as to why 20% of the amount is awarded as interim compensation. All that the Court records on going through the entire amended provision is, if the drawer of the cheque has not pleaded guilty, then he shall pay interim compensation at the rate of 20%. The petitioner in the case at hand did not plead guilty. Therefore, the Court grants interim compensation. There is no application of mind as to why the said compensation has to be awarded. Section 143A is completely misread that once the accused does not plead guilty, the complainant becomes automatically entitled to 20% of the&nbsp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cheque amount as interim compensation. Sub-section (1) of Section 143A reads that notwithstanding anything contained in the Cr.P.C. the Court trying an offence under Section 138 may order drawer to pay interim compensation to the&nbsp; complainant. If an order is passed for payment of interim compensation, it shall be paid within 60 days from the date of the order.</b></p><p><b>11. Therefore, the Legislature has cautiously worded sub-section (1) of Section 143A not to make it mandatory in all cases where clauses (a) and (b) of sub-section (1) would empower the learned Magistrate before whom proceedings are pending consideration to award interim compensation. It is the discretion conferred, as the word used is “may”. If the order is passed, then the payment is mandatory. Therefore, the learned Magistrate who is hearing the application for interim compensation should apply his mind, record his reasons in exercise of his discretion, as to why 20% of the cheque amount is to be granted, as interim compensation in any given case.</b></p><p><b>12. The other side of the coin of discretion available to the learned Magistrate is that the amount should not exceed 20%. Therefore, it is not that 20% has to be the interim&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">compensation in every case. Here again the discretion is required to be exercised by the learned Magistrate as the interim compensation can vary from 1% to 20% but shall not exceed 20%. The language of Section 143A being couched with such discretion, the discretion if not exercised in a manner known to law, becomes an arbitrary action.</b></p><p><b>13. Application of mind in exercise of discretion is discernible only in an order that contains reasons, and reasons can be found only if they are recorded in writing, and if reasons are recorded in writing, it is only then the order will be within the counters of law.</b></p><p><b>14. The consequence of non-payment of interim compensation so awarded is penal, as proceedings can be initiated by the complainant under Sections 357 and 421 of the Cr.P.C. which are recoverable as fine paid under Section 421 of the Cr.P.C. The impugned action now alleged is that in terms of the order passed by the competent Court, the proceedings for attachment of the property are initiated by the complainant and the property of the petitioner is put to auction. Therefore, the consequences of such order are grave where the petitioner&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">whose liability is yet to be determined will have to face grave hardship in the event of non-payment. It is therefore imperative for the learned Magistrates to pass appropriate orders which bear application of mind and record reasons as to why interim compensation is to be awarded in a given case.</b></p><p><b>15. In the case at hand, there is not even a semblance of application of mind on the part of the learned Magistrate as the learned Magistrate misconstrues the provision that in the event the accused does not plead guilty he becomes liable to pay 20% as interim compensation. This is not the purport of the Act. But, that does not preclude the learned Magistrate to pass appropriate orders of grant of compensation in a given case. What is the necessary is only application of mind and recording detailed reasons as to why such compensation is to be awarded in a given case. The learned Magistrate will have to apply his mind and pass appropriate orders basing on the averments in the claim inter alia, the case on hand is a classic one where the transaction has happened in cash that too for an amount of rupees two crores. It is the claim of the complainant that cash&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of rupees two crores was paid as a hand loan and a cheque was obtained from the accused.&nbsp;</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Criminal Petition is allowed&nbsp;</b><br></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '377d79927bcaada28e348e024f4ba561.jpg', 'b234b54abd9cc395b4b2efeb59cfccac.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-01', 1, '', '', '2022-03-01 18:58:06', '2022-03-01 18:58:06'),
(1369, 'Lx1NSiJmTSzkdDnfnKsTGUOHj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Foreign nationals, having Overseas Citizens of India card who are treated on par with Non-Resident Indians, can seek annulment of their marriage before the family courts in India. Karnataka High Court. ', '<p><b>Michael Graham Prince vs Nisha Misra&nbsp;<br>Writ Petition 15356 of 2020 decided on 24 February 2022</b></p><p><b>What Justice Oliver Wendell Holmes in his book ‘The Common Law’ (1881) at the very first page had said, should prelude this judgment:</b></p><p><b><i>“The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public&nbsp; policy,&nbsp; avowed&nbsp; or&nbsp; unconscious,&nbsp; even&nbsp; &nbsp;the prejudices which judges share with their fellow- men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become...”</i></b></p><p><b>2. The estranged spouses are fighting this legal battle.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Respondent – wife has filed MC No.1761/2018 u/s. 27(1)(a) &amp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(d) of the Special Marriage Act, 1954 r/w Sec.18 of the Foreign Marriages Act, 1969 seeking a decree for dissolution of marriage and for the retention of child custody. Petitioner&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">– husband had filed application in I.A.No.4 u/s. 151 of CPC, 1908 “to dismiss/reject the divorce petition”; learned 1st Addl. Principal Judge, Family Court, Bangalore, dismissed the same vide order dated 25.09.2020 holding that the native court has jurisdiction to try the subject matrimonial cause. Aggrieved thereby, petitioner is knocking at the doors of Writ Court.</b></p><p><b>(a) Petitioner – husband, is a ‘Christian by faith’ and Respondent – wife is a ‘Hindu by faith’; both they are British nationals; their marriage was solemnized on 20.02.2000 according to ‘Hindu Arya Samaj rites &amp; customs’, in the presence of family members &amp; friends at Mumbai; subsequently, a civil marriage ceremony was undertaken on 18.03.2000 in United Kingdoms; a Certificate of Registration evenly dated has been obtained by them.</b></p><p><b>(a) What the Apex Court observed as under in JOSEPH SHINE vs. UNION OF INDIA,&nbsp; (2019) 3&nbsp; SCC 39 at page 76 has been profitably reproduced:</b></p><p><i><b>“…the essentiality of the rights of women gets the real requisite space in the living room of individual dignity rather than the space in an annexe to the main building. Individual dignity has a sanctified realm in a civilised society. Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution. A woman cannot be asked to think as a man or as how the society desires. Such a thought is abominable, for it slaughters her core identity. And, it is time to say that a husband is not the master. Equality is the governing parameter…It is advisable to remember what John Stuart Mill had observed: “The legal subordination&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of one sex to another — is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a system of perfect equality, admitting no power and privilege on the one side, nor disability on the other.” [John Stuart Mill, On Subjection of Women, Chapter 1 (1869).]””</b></i></p><p><b>Our constitution provides for equal protection of the laws under Article 14, this also includes gender – equality, elimination of a gender-based differentiation in the pursuit of legal remedies, the right of non–discrimination on the basis of gender under Article 15 and the right to life under Article 21 that includes the right to live with dignity. Race, caste, sex, place of birth etc., manifest as organizing categories of an individual’s life, the aim for egalitarianism as emanating from our constitutional paradigm places as an imperative ‘the equal worth of liberty’ and ‘truly fair equality of opportunity’. In bringing about this conducive and egalitarian atmosphere for its citizenry, there exists a positive duty upon the State as readily apparent in the context of welfare entitlements wherein the State must adopt affirmative steps to alleviate poverty and the major sources of economic and social non – freedom vide K.S PUTTASWAMY vs. UNION OF INDIA (2017) 10 SCC 1.</b></p><p><b>(b)<span style=\"white-space:pre\">	</span>As a necessary corollary of the above, in matrimonial causes the precept of ‘spousal–equality’ as a necessary facet of gender–equality enshrined u/a 14 of the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Constitution must be given due recognition i.e., ‘truly fair equality of opportunity’ for both persons in the marriage in terms of opting into marriage &amp; opting out, i.e., dissolution of marriage. Allowing the husband to curtail the ‘exit’ option of the wife, on the ground of lack of jurisdiction or such other factors militates against our constitutional philosophy. It is also pertinent to state that the principle of ‘spousal–equality’ is premised on the provision of effective freedom to both parties to determine the nature of their lives, different styles and ways of living. At this juncture it would be profitable to recall what Martha C Nussbaum in her book “Woman and Human Development: The Capabilities Approach” Cambridge University Press (2000) at page 69 states:</b></p><p><b><i>“…a theory of justice must be cognizant of the different situations of distinct lives, in order to distribute not only liberty, but also equal worth; not only formal equality of opportunity, but also truly fair equality of opportunity…We want an approach that is respectful of each person’s struggle for flourishing, that treats each person as an end and as a source of agency and worth in her own right. Part of this respect will mean not being dictatorial about the good, at least for adults and at least in some core areas of choice, leaving individuals a wide space for important types of choice and meaningful affiliation. But this very respect means taking a stand on the conditions that permit them to follow their own lights free from tyranny …”</i></b></p><p><b>(c) The first contention of the Petitioner that both the parties being foreign nationals, native Courts do not have&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">jurisdiction over the subject matter, is bit difficult to countenance; foreign nationals they are, is not in dispute; however, admittedly the Government of India has issued OCI Cards to both of them; thus, they are not strangers to this country. Under the Notifications dated 11.04.2005, 05.11.2007 &amp; 05.01.2009 issued by the Central Government u/s. 7B of the Citizenship Act, 1955, in many aspects the OCI Cardholders are treated on par with Non- Resident Indians (NRI); these notifications are superseded on 04.03.2021, is beside the point since it is prospective in operation; sub- section 2 of section 7B excludes certain rights from being granted to the OCI Cardholders. However, this exclusion does not cover the right to seek matrimonial reliefs at the hands of the native Courts; the subject statutory notifications do not in so many words vest in them such a right to litigate may be true; but, that per se does not divest them of such a right which otherwise avails even to the OCI Cardholders.</b></p><p><b>(d) After all, ubi jus ibi remedium is the operational principle of our system; once lawfully admitted to a territory even the foreigners are entitled to certain essential rights that are necessary for a meaningful life vide SARBANANDA SANOWLA vs. UNION OF INDIA, 2005 (5) SCC 665. The constitutional guarantee under Articles 14 &amp; 21 ordinarily extends to foreigners too vide HANS MULLER OF&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">NURENBURG vs. SUPERINTENDENT, PRESIDENCY JAIL,&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">CALCUTTA, AIR 1955 SC 367; if aliens can have certain fundamental rights almost on par with the natives, it sounds abhorrent to the rule of law and notions of justice if ordinary legal rights are not conceded to them; an argument to the contrary would justify perpetuation of legal injury sans any remedy to an aggrieved foreigner residing on Indian soil.</b></p><p><b>(e)<span style=\"white-space:pre\">	</span>It is admitted in the pleadings that the parties have undergone marriage ceremony in accordance with the rites &amp; rituals of Hindu Arya Samaj; thus, they acquired marital status in India and in accordance with lex loci i.e., the Arya Marriage Validation Act, 1937; Section 2 of this Act saves the marriage of the kind subsequently, they got registration of civil marriage in U.K. does not alter their spousal status; far from that it strengthens the same; a subsequent official ceremony of marriage that took place in their country would not replace the existing marital status in rem and create a new one; if marriage has taken place in India in which parties are ordinarily residing, the native Courts have substantive jurisdiction to adjudge matrimonial disputes; parties cannot be asked to go to some other country to have redressal to their grievances; it is more so when the grieving party is the wife; this view gains support from several International Conventions. Articles 15(2) &amp;&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16(1)(c) of The Convention on the Elimination of All Form of Discrimination against Women (CEDAW) read as under:</b></p><p><b><i>“15 (2): States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in Courts and tribunals.</i></b></p><p><i><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16 (1) (c): The same rights and responsibilities during marriage and its dissolution.”</b></i></p><p><b>(f) It is relevant to state here that this Convention has been referred to by the Apex Court in SHAYARA BANO vs. UNION OF INDIA, (2017) 9 SCC 1; ordinarily, the International Conventions of the kind are treated as a source of law even in the domestic sphere if they are not inconsistent with existing corpus juris of our country, vide JOLLY GEORGE VERGHESE vs. BANK OF COCHIN, AIR 1980 SC 470; at least, while construing the provisions of domestic law, they need to be adverted to; keeping this in mind, the word ‘citizen’ occurring in Sections 4 &amp; 18 of the Foreign Marriage Act, 1969, needs to be liberally construed to include a foreigner who holds OCI Card and resides in India. It is not prudent to insist that what the provisions of the statutes meant to the vision of its makers then, must mean to the vision of our time. They should be interpreted to meet and cover changing conditions of social and economic life. The law&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">states not rules for the passing hour but the principles for an expanding future. Otherwise, it will not be living law of the people but would remain as a black letter on a white paper. Such a purposive construction serves the Parliamentary object of this Act which vide Section 18 refers to certain provisions of the Special Marriage Act, 1954. The march of law and more particularly family law from April to May and to the June of its life, as of necessity happens in the judicial process in all civilized jurisdictions where boundaries of nations are loosing significance in a shrinking globe.</b></p><p><b>(g) The contention of learned counsel for the petitioner, that domicile being a pre-condition for the institution of matrimonial cases, the Court below could not have entertained the divorce petition of the wife, does not much come to his aid. Section 18 of the 1969 Act and Section 31 of the 1954 Act prescribe “residence” for invoking the jurisdiction of Family Court. The word ‘residence’ is not prefixed by the word ‘ordinarily’ and thus these provisions are a bit in variance with usual drafting. The absence of prefix gives an indication that the word ‘residence’ needs to be given an expansive meaning; after all, law is not the slave of dictionaries; words employed in a statute do not have a fixed meaning; the contours of their meaning vary with the run of time. Statutes do not suffer from rigor mortis. Admittedly, the respondent–wife has been&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">residing within the jurisdictional limits of the Court.&nbsp; Thus,&nbsp; these provisions are ‘citizenship neutral’ but ‘domicile centric’; it hardly needs to be stated the domicile involves the factum of residence and the intent to reside indefinitely; these ingredients galore in this case. It is profitable to advert to ‘Halsbury’s Laws of England’ (3rd Edn.) Vol.&nbsp; VII&nbsp; at paragraph 26: “A person’s domicile is that country in which he either has or is deemed by law to have his permanent home”.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(h)<span style=\"white-space:pre\">	</span>It is said tritely that the soundness of a proposition can be adjudged by contemplating consequences of the opposite; the contention of the husband that the wife should go to Courts in England to seek dissolution of the marriage that has been solemnized in India and in accordance with Indian Law, if countenanced, virtually amounts to denying matrimonial relief to her and thus compelling her to remain in the wedlock, which otherwise she could have worked out her remedy against; it has long been settled that the contention as to exclusion of jurisdiction of Courts is seen with jealousy and that a heavy onus lies on the asserter.</b></p><p><b>In the above circumstances, this Writ Petition being devoid of merits is liable to be dismissed and accordingly, it is, costs having been made easy.</b></p><p><b>This court places on record its deep appreciation for the able assistance rendered by the Law Clerk cum Research Assistant, Mr.Faiz Afsar Sait.</b></p><p><br></p><div><br></div>', 'a14650bef476d8e1a55d1331d7e1910a.jpg', '23fcf66b977088ee886224c20f9c4dcd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-02', 1, '', '', '2022-03-02 22:59:47', '2022-03-02 22:59:47'),
(1370, 'AC8qVa35krPAYJZKjTsSR4Avg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Tender. Highest bidder has no vested right to have the auction concluded in his favour. The judicial review is limited to examine arbitrary or unreasonable decision by the competent authority. Supreme Court. ', '<p><b>State of Punjab and others vs Mehar Din<br>Civil Appeal 5861 of 2009 decided on 2 March 2022<br>Justice Ajay Rastogi and Justice Abhay S. Oka.&nbsp;</b></p><p><b>Judgement Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2009/8509/8509_2009_13_1501_33799_Judgement_02-Mar-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2009/8509/8509_2009_13_1501_33799_Judgement_02-Mar-2022.pdf</a></b></p><p><b>25. Undisputedly, the provisional bid, in the instant case, was\r\nnot confirmed by the competent authority (Sales Commissioner)\r\nand not being accepted after recording its due satisfaction by an\r\norder dated 2nd July, 1993 and the decision of the authority in\r\npassing the order of cancellation of the auction bid was\r\nscrutinized/examined by the appellate/revisional authority and\r\nthe discretion exercised by the competent authority in taking\r\ndecision of cancellation was upheld at later stages.</b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>26. This being a settled law that the highest bidder has no vested\r\nright to have the auction concluded in his favour and in the given\r\ncircumstances under the limited scope of judicial review under\r\nArticle 226 of the Constitution, the High Court was not supposed\r\nto interfere in the opinion of the executive who were dealing on the\r\nsubject, unless the decision is totally arbitrary or unreasonable,\r\nand it was not open for the High Court to sit like a Court of Appeal\r\nover the decision of the competent authority and particularly in\r\nthe matters where the authority competent of floating the tender\r\nis the best judge of its requirements, therefore, the interference\r\notherwise has to be very minimal.</b></span></p><p><b>27. To the contrary, the limited scope of judicial review for which\r\ninterference could have been permissible to prevent arbitrariness,&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">irrationality, bias, malafides or perversity, if any, in the approach\r\nof the authority while dealing with the auction proceedings, was\r\nnever the case of the respondent at any stage. The High Court\r\nhas recorded a finding to the contrary that the appellants have\r\nfailed to show any irregularity or illegality in the auction\r\nproceedings and in the absence whereof, the auction proceedings\r\ncould not be held to be vitiated. The premise on which the High\r\nCourt has proceeded in recording a finding, particularly, in the\r\nmatters of auction of public properties is unsustainable in law and\r\nthat apart, it is also not in conformity with the Scheme of auction\r\nof public properties as defined under Chapter III of Rules 1976.</span></b></p><p><b>28. In our considered view, the finding recorded by the High\r\nCourt in the impugned judgment is unsustainable and deserves to\r\nbe set aside.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;</span></b></p><p><b>&nbsp;<br></b></p><p><b><br></b></p><p><br></p>', '23f517500092972f02bd844e2749df04.jpeg', 'e9115d2c983d46de5b3855ad7b292025.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-02', 1, '', '', '2022-03-03 02:55:43', '2022-03-03 02:55:43'),
(1371, 'CCmvUpHg4hC7ikmF9EQb5oQ50', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Doctrine of frustration of contract and of restoration under Section 56 of the Indian Contract Act.  If the party claiming restitution was equally or more responsible for the illegality, he cannot seek restitution. Supreme Court. ', '<p><b>Loop Telecom and Trading Limited vs Union of India and Anr.<br>Civil Appeal Nos. 1447-1467 of 2016 decided on 3 March 2022<br></b></p><p><b>Judgement Link:&nbsp;<br><a href=\"https://main.sci.gov.in/supremecourt/2015/41354/41354_2015_4_1501_33807_Judgement_03-Mar-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2015/41354/41354_2015_4_1501_33807_Judgement_03-Mar-2022.pdf</a><br></b></p><p><b>Justice Dr Dhananjaya Y Chandrachud, Justice Surya Kant and Justice Vikram Nath<br></b></p><p><b>39 In this section of the judgment, we will analyse the claim of the appellant that\r\nit is entitled to claim a refund of the Entry Fee on an application of the doctrine of\r\nfrustration and the principle of restitution. The appellant has placed reliance on the\r\nprovisions of Sections 56 and 65 of the Contract Act. The basic postulate of the\r\nappellant is that when a licence is granted under the proviso to Section (4)(1) of the&nbsp;Telegraph Act, the licence is in the nature of a contract between the government and\r\nlicensee, thus bringing it within the ambit of the Indian Contract Act.</b></p><p><b> 41 It is on the above premise that the appellant seeks to invoke the application of\r\nthe doctrine of frustration of contract and of restoration. Section 56 of the Indian\r\nContract Act provides as follows:</b></p><p><b><i>56. Agreement to do impossible act.— An agreement to\r\ndo an act impossible in itself is void.\r\n<br>Contract to do act afterwards becoming impossible or\r\nunlawful.<br>A contract to do an act which, after the contract is\r\nmade, becomes impossible, or, by reason of some event&nbsp;which the promisor could not prevent, unlawful, becomes void\r\nwhen the act becomes impossible or unlawful.\r\n<br>Compensation for loss through non-performance of act\r\nknown to be impossible or unlawful.—Where one person\r\nhas promised to do something which he knew, or, with\r\nreasonable diligence, might have known, and which the\r\npromisee did not know, to be impossible or unlawful, such\r\npromisor must make compensation to such promisee for any\r\nloss which such promisee sustains through the nonperformance of the promise.</i><br></b></p><p><b>48.....Thus, in determining a claim of restitution, the claiming party’s legal footing in\r\nrelation to the illegal act (and in comparison to the defendant) must be understood.\r\nUnless the party claiming restitution participated in the illegal act involuntarily or the\r\nrule of law offers them protection against the defendant, they would be held to be in\r\npari delicto and therefore, their claim for restitution will fail.</b></p><p><b>49 The position is in India is similar to that of the case of Kuju Collieries Ltd. v.\r\nJharkhand Mines Ltd. (1974) 2 SCC 533 , where a Bench of three learned judges of this Court relied\r\non a judgment of a five-judge bench of the then Hyderabad High Court. ....While upholding the view of the Hyderabad High Court, this Court held ?it [the Full\r\nBench of the Hyderabad High Court] has rightly pointed out that if both the transferor\r\nand transferee are in pari delicto the courts do not assist them?.<br></b></p><p><b>50. In an earlier decision of this Court in Inmani Appa Rao v. Gollapalli\r\nRamalingamurthi&nbsp; (1962) 3 SCR 739, a three-judge Bench held that where both the parties before\r\nthe Court are confederates in the fraud, the Court must lean in favour of the\r\napproach which would be less injurious to public interest.&nbsp;<br></b></p><p><b>51 The principle which was enunciated in the judgment in Inmani Appa Rao\r\n(supra) has been more recently applied in a decision of a three-judge Bench of this\r\nCourt in Narayanamma v. Govindappa&nbsp;2019 (19) SCC 42.</b></p><p><b>52 Hence, in adjudicating a claim of restitution under Section 65 of the Indian\r\nContract Act, the court must determine the illegality which caused the contract to\r\nbecome void and the role the party claiming restitution has played in it. If the party\r\nclaiming restitution was equally or more responsible for the illegality (in comparison\r\nto the defendant), there shall be no cause for restitution. This has to be determined\r\non the facts of each individual case.&nbsp;</b><br></p>', 'd4e0434776c595f178f866dc70d54b52.jpg', 'eab0c1b60c8144f762aab9ded8f325ab.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-03', 1, '', '', '2022-03-04 02:03:54', '2022-03-04 02:27:03'),
(2924, '2eJQtuXa2eDheElWlQcsWPBcW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'RTC entries in revenue records. Deputy Commissioner exercising power under the Karnataka Land Revenue Act cannot sit over the validity of registered title deed. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">B Ramaiah, vs B Nayanappa and others.</span></p><p><span style=\"font-weight: bolder;\">Writ Petition&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5386/2007 decided on 1 December 2021.</span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; font-weight: bolder;\">Justice Hemant Chandangoudar</span></p><p><span style=\"font-weight: bolder;\">6. Admittedly, the name of the petitioner was mutated in the revenue records in respect of the land in question in pursuance of the registered gift deed executed by his mother.&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The 1st respondent has not challenged the validity of the gift deed before the competent Court of law and the gift deed is still in subsistence. Hence, the Tahsildar concerned having regard to the registered gift deed has rightly mutated the name of the petitioner in the revenue records in respect of the land in question by exercising the power under Section 128 of the Karnataka Land Revenue Act, 1964. The Deputy Commissioner ignoring this aspect has held that the registered gift deed could not have been executed in favour of the petitioner unilaterally. The Deputy Commissioner exercising the power under the Karnataka Land Revenue Act cannot sit over the validity of the gift deed. Hence, the order passed by the 6th respondent is not sustainable in law. Accordingly, I pass the following:</span></p><p><span style=\"font-weight: bolder;\">Writ petition is allowed</span></p>', '4cac2cd3bf7ed4268d74ebf1003e1d99.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-19', 1, '', '', '2023-04-19 16:18:44', '2023-04-19 12:27:18');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1373, 'Q27cdwF1QPYwrrNlcZDVwPdIO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When plaintiff\'s suit for declaration of title is dismissed on merits, his prayer for consequential injunction can NOT be granted against the owner though the plaintiff is in possession of the property. Supreme Court.', '<p><b>Padhiyar Prahladji Chenaji vs Maniben Jagmalbhai (Deceased) Through L.R.s and Ors.</b></p><p><b>Civil Appeal 1382 of 2022 decided on 3 March 2022</b></p><p><b>Justice M.R. Shah and Justice B.V. Nagarathna&nbsp;</b></p><p><b>Judgement Link:</b></p><p><b><a href=\"https://main.sci.gov.in/supremecourt/2018/43874/43874_2018_12_1501_33813_Judgement_03-Mar-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2018/43874/43874_2018_12_1501_33813_Judgement_03-Mar-2022.pdf</a></b></p><p><b>7. Therefore, the short question, which is posed for the consideration of this Court is, whether, in a case where the plaintiff has lost so far as the title is concerned and the defendant against whom the permanent injunction is sought is the true owner of the land, whether the plaintiff is entitled to a relief of permanent injunction against the true owner, more particularly, when the plaintiff has lost so far as the title is concerned and can thereafter the plaintiff be permitted to contend that despite the fact that the plaintiff has lost so far as the title is concerned, her possession be protected by way of injunction and that the true owner has to file a substantive suit claiming the possession.&nbsp;</b></p><p><b>8.3 Therefore, once the suit is held to be barred by limitation qua the declaratory relief and when the relief for permanent injunction was a consequential relief, the prayer for permanent injunction, which was a consequential relief can also be said to be barred by limitation. It is true that under normal circumstances, the relief of permanent injunction sought is a substantive relief and the period of limitation would commence from the date on which the possession is sought to be disturbed so long as the interference in possession continuous. However, in the case of a consequential relief, when the substantive relief of declaration is held to be barred by limitation, the said principle shall not be applicable.</b></p><p><b>9. Even otherwise on merits also, the Courts below have erred in passing the decree of permanent injunction restraining the defendant No.1 from disturbing the alleged possession of the plaintiff. Assuming for the sake of argument that the plaintiff is found to be in possession, in that case also, once the plaintiff has lost so far as the relief of declaration and title is concerned and the defendant No.1 is held to be the true and absolute owner of the property in question, pursuant to the execution of the sale deed dated 17.06.1975 in his favour, the true owner cannot be restrained by way of an injunction against him. In a given case, the plaintiff may succeed in getting the injunction even by filing a simple suit for permanent injunction in a case where there is a cloud on the title. However, once the dispute with respect to title is settled and it is held against the plaintiff, in that case, the suit by the plaintiff for permanent injunction shall not be maintainable against the true owner. In such a situation, it will not be open for the plaintiff to contend that though he/she has lost the case so far as the title dispute is concerned, the defendant – the true owner still be restrained from disturbing his/her possession and his/her possession be protected.&nbsp;</b></p><p><b>9.1 At this stage, the decision of this Court in the case of Jharkhand State Housing Board Vs. Didar Singh and Anr., (2019) 17 SCC 692 is required to be referred to. In the said decision, it is observed and held by this Court that though a bare suit for injunction in the absence of declaration relief would be maintainable and in each and every case where the defendant disputes the title of the plaintiff, it is not necessary that in all those cases, the plaintiff has to seek the relief. It is further observed and held that, however, when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.</b></p><p><b>9.2 In the present case, once the defendant No.1 was held to be the true and absolute owner pursuant to the registered sale deed executed in his favour and the plaintiff was unsuccessful so far as the declaratory relief is concerned, thereafter, it cannot be said that there was a cloud over the title of the plaintiff and/or even the defendant. Therefore, the only relief which survived before the trial court was the consideration of&nbsp; relief of permanent injunction and having been unsuccessful in getting the relief of cancellation of the registered sale deed and the declaration thereof, the relief of permanent injunction could not have been granted by the trial court as well as by the first Appellate Court. This aspect of the case has been lost sight of by the High Court in the second appeal&nbsp;</b></p><p><b>9.3 In the case of A. Subramanian Vs. R. Pannerselvam, (2021) 3 SCC 675, it is observed by this Court that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. Therefore, the plaintiff is not entitled to any injunction and/or protect his possession against the rightful owner, more particularly, when he fails to get the declaratory relief and the dispute with respect to the title comes to an end.&nbsp;&nbsp;</b></p><p><b>11.1 An injunction is a consequential relief and in a suit for declaration with a consequential relief of injunction, it is not a suit for declaration simpliciter, it is a suit for declaration with a further relief. Whether the further relief claimed has, in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law.</b></p><p><b>12. Now, so far as the submission on behalf of the plaintiff that even if the plaintiff failed to get the declaratory relief and relief for cancellation of registered sale deed and her suit for the said reliefs came to be dismissed and the plaintiff is found to be in possession and therefore, the only remedy available to the defendant No.1 would be to file a substantive suit to get back the possession is noticed only to be rejected outright. It is the contention on behalf of the plaintiff that once the plaintiff is found to be in possession, her possession cannot be disturbed except in due process of law and the defendant No.1 though may be the true owner has to file a substantive suit for recovery of possession. While considering the aforesaid submission, the decision of this Court in the case of Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5 SCC 370 is required to be referred to.&nbsp;</b></p>', '62c01d6905149a76f0d5eb1aa1e1d86a.jpg', 'fee309f039d1c1170bbca6136fb2e8b0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-03', 1, '', '', '2022-03-04 03:47:22', '2022-03-04 03:47:22'),
(1374, '7NS1xzDGHweIixVkzHfQmHUs5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Confiscation of vehicle used for crime even after acquittal of accused in criminal case amounts to deprivation of property and violative of Article 300A of the Constitution of India. Supreme Court.  ', '<p><b>Abul Vahab vs State of Madhya Pradesh&nbsp;<br>Criminal Appeal 340 of 2022 decided on 4 March 2022<br>Judgement Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2019/24257/24257_2019_40_1501_33883_Judgement_04-Mar-2022.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2019/24257/24257_2019_40_1501_33883_Judgement_04-Mar-2022.pdf</a></b></p><p><b>&nbsp;justice K.M. Joseph and Justice Hrishkesh Roy&nbsp;</b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3. The primary challenge in this appeal is to the\r\nConfiscation Order dated 09.08.2017 for the appellant’s\r\ntruck (bearing No.MP/09/GF/2159), passed by the\r\n1\r\nDistrict Magistrate, Agar Malwa, purporting to exercise\r\npowers under Section 11(5) of the M.P. Prohibition of\r\nCow Slaughter Act, 2004 (hereinafter referred to as,\r\n‘the 2004 Act’) and Rule 5 of the M.P Govansh Vadh\r\nPratishedh Rules, 2012. The Confiscation order was\r\naffirmed on 22.9.2018 by the Court of Additional\r\nCommissioner, Ujjain. The Revision Petition challenging\r\nthe confiscation order was dismissed by the 3rd\r\nAdditional Sessions Judge, Ujjain in the Criminal\r\nRevision No.211/2018. The Truck owner preferred a\r\nPetition under section 482 CrPC before the High Court\r\nof Madhya Pradesh, wherein, the High Court affirmed the\r\norders passed by the forums below, while holding that\r\nno error has been committed by the District Magistrate\r\nin ordering the truck’s confiscation, even after\r\nacquittal of the accused persons from the criminal\r\ncase.</b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>21...The confiscation proceeding, before the District\r\nMagistrate, is different from criminal prosecution.\r\nHowever, both may run simultaneously, to facilitate\r\nspeedy and effective adjudication with regard to\r\nconfiscation of the means used for committing the offence. The District Magistrate has the power to\r\nindependently adjudicate cases of violations under\r\nSections 4, 5, 6, 6A and 6B of the 2004 Act and pass\r\norder of confiscation in case of violation. But in a\r\ncase where the offender/accused are acquitted in the\r\nCriminal Prosecution, the judgment given in the\r\nCriminal Trial should be factored in by the District\r\nMagistrate while deciding the confiscation proceeding.\r\nIn the present case, the order of acquittal was passed\r\nas evidence was missing to connect the accused with the\r\ncharges. The confiscation of the appellant’s truck when\r\nhe is acquitted in the Criminal prosecution, amounts to\r\narbitrary deprivation of his property and violates the\r\nright guaranteed to each person under Article 300A.\r\nTherefore, the circumstances here are compelling to\r\nconclude that the District Magistrate’s order of\r\nConfiscation (ignoring the Trial Court’s judgment of\r\nacquittal), is not only arbitrary but also inconsistent\r\nwith the legal requirements. </b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>22. In view of the foregoing, the confiscation order of\r\nthe District Magistrate cannot be sustained and it is\r\ndeclared so accordingly. Consequently, the High Court’s\r\ndecision to the contrary is set aside. The appeal\r\nstands allowed with this order without any order on\r\ncost.</b></span><br></p>', '9fa1deded27ec35d9aa462ffeec94731.jpg', '4ca522e8c429b9e5fd5dbe576f985c98.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-04', 1, '', '', '2022-03-05 02:00:51', '2022-03-05 02:00:51'),
(1375, 'd5F5onkN7FiWSetM3ATFQU4Uc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Court exercising revisional power under Section 115 Civil Procedure Code can admit additional evidence/document. Karnataka High Court. ', '<div class=\"WordSection1\">\r\n\r\n<div class=\"WordSection1\">\r\n\r\n<div class=\"WordSection1\">\r\n\r\n<div class=\"WordSection1\">\r\n\r\n<p class=\"MsoNormal\" style=\"margin-top:.05pt;margin-right:84.1pt;margin-bottom:\r\n0cm;margin-left:0cm;margin-bottom:.0001pt\"><span lang=\"EN-US\"><b>Bhojaraj vs Suresh and another <br>Civil Revision Petition 100034 of 2021 decided on 25 February 2022<br></b><b style=\"text-indent: 36pt; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The captioned civil revision petition is filed by the\r\nplaintiffs feeling aggrieved by the dismissal of suit by Small Cause Court. </b></span></p><p class=\"MsoNormal\" style=\"margin-right:29.1pt;line-height:200%;tab-stops:108.4pt\"><b><span lang=\"EN-US\" style=\"font-size:12.0pt;mso-bidi-font-size:11.0pt;line-height:200%\">5.. The\r\nlearned counsel for petitioners has filed an application<span style=\"letter-spacing:\r\n3.25pt\"> </span>before<span style=\"letter-spacing:3.25pt\"> </span>this<span style=\"letter-spacing:3.3pt\"> </span>Court<span style=\"letter-spacing:3.3pt\"> </span>under<span style=\"letter-spacing:3.35pt\"> </span>Section<span style=\"letter-spacing:3.3pt\">\r\n</span>151<span style=\"letter-spacing:3.25pt\"> </span>read<span style=\"letter-spacing:3.3pt\"> </span>with <o:p></o:p></span><span style=\"text-align: justify; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Order XLI Rule 27 of CPC and sought leave of this Court to produce\r\ncertified copy of the sale deed dated 07.07.2017 executed by erstwhile owners\r\nof the suit property. ...Placing reliance on additional evidence, the learned\r\ncounsel appearing for petitioners would submit to this Court that the\r\nadditional evidence is very much essential for rendering substantial justice to\r\nthe parties. He would further submit that though the present proceedings are\r\nadmittedly revision proceedings, however to do substantial justice, he requests\r\nthis Court to accept additional evidence by exercising inherent</span><span style=\"text-align: justify; font-family: var(--bs-font-sans-serif); font-size: 1rem; letter-spacing: -0.6pt;\"> </span><span style=\"text-align: justify; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">powers.</span></b></p><p class=\"MsoNormal\" style=\"margin-right:29.1pt;line-height:200%;tab-stops:108.4pt\"><b><span style=\"text-align: justify; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. </span><span style=\"font-family: Verdana, sans-serif; font-size: 11pt;\">To\r\nbuttress his arguments he has placed reliance on the judgment of the Hon’ble\r\nApex Court in the case of Hindustan Petroleum Corporation Limited</span><span style=\"font-family: Verdana, sans-serif; font-size: 11pt;\">  </span><span style=\"font-family: Verdana, sans-serif; font-size: 11pt;\">v.</span><span style=\"font-family: Verdana, sans-serif; font-size: 11pt;\"> \r\n</span><span style=\"font-family: Verdana, sans-serif; font-size: 11pt;\">Dilbahar</span><span style=\"font-family: Verdana, sans-serif; font-size: 11pt;\">  </span><span style=\"font-family: Verdana, sans-serif; font-size: 11pt;\">Singh </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(2014) 9 Supreme Court Cases 78 </span><span style=\"font-family: Verdana, sans-serif; font-size: 11pt;\">and also the\r\njudgment rendered by the Co-ordinate Bench of this Court in the case of Poornaprajna\r\nEducation Centre, Belur v. Puspha </span><span style=\"font-family: Verdana, sans-serif; font-size: 11pt;\">2002\r\n(5) Kar.L.J. 161</span><span style=\"font-family: Verdana, sans-serif; font-size: 11pt;\">. By relying on these two</span><span style=\"font-family: Verdana, sans-serif; font-size: 11pt;\">  </span><span style=\"font-family: Verdana, sans-serif; font-size: 11pt;\">judgments, he would submit to this Court that\r\nthe additional evidence has to be taken into consideration and if the same is\r\nadmitted on record, the findings of the Small Cause Court are not at all\r\nsustainable and therefore, he would request</span><span style=\"font-family: Verdana, sans-serif; font-size: 11pt;\"> \r\n</span><span style=\"font-family: Verdana, sans-serif; font-size: 11pt;\">this Court to consider additional evidence placed on record by the\r\npetitioners herein </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">invoking\r\nrevisional jurisdiction. To buttress his arguments and in support of his\r\ncontentions, he would place reliance on the judgment rendered by this Court in\r\nthe case of Harilal v. Ismailsab </span><span style=\"font-family: Verdana, sans-serif; font-size: 11pt;\">Kar.L.J.\r\n1979 Page 1201</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">. Placing reliance on the said judgment, he\r\nwould submit to this Court that it is a well settled principle of law that the\r\nrevisional jurisdiction is distinct from appellate jurisdiction. Under the Code\r\nof Civil Procedure, the revision jurisdiction of High Court is to be exercised\r\nwithin the meaning and scope of Section 115 of CPC. Therefore, relying on the\r\nsaid judgment, he would submit to this Court that in the present revision\r\npetition, this Court cannot convert itself to an appellate court and receive\r\nadditional evidence.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin-right:29.1pt;line-height:200%;tab-stops:108.4pt\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. In the present case on hand,\r\nthe petitioner is asserting and claiming ejectment based on title and the\r\nrespondent-defendant admittedly does not have any independent right in the suit\r\nproperty. The judgments cited supra which are latter in point of time, clearly\r\nindicate that the procedural technicalities should not come in the way of\r\njustice. From this analogy, it can be stated that additional evidence can be\r\nreceived even in revisional proceedings. The only limitation where the\r\nauthority of revisional court has certain restrictions while exercising\r\nrevisional jurisdiction is, the revisional Court should not trench upon the\r\npowers which are expressly reserved by the Act or by the Rules to other </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">authorities or to ignore the limitations inherent in the exercise of\r\nrevisional powers. By admitting additional evidence, I am of the firm view that\r\nthis Court has not at all encroached upon the Appellate jurisdiction vested\r\nwith the power of receiving additional evidence under Order XLI Rule 27 of CPC.</span></b></p><p class=\"MsoNormal\" style=\"margin-right:29.1pt;line-height:200%;tab-stops:108.4pt\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12. </span><span lang=\"EN-US\" style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">This Court has to bear in mind\r\nthat in a given set of facts, there are compelling reasons and the additional\r\nevidence has to be received so as to minimize the litigation. There should not\r\nbe any difficulty in applying the same principle to the litigation which comes\r\nto court under the provisions of Small Cause Courts Act. If a narrow view is\r\ntaken to the effect that the revisional courts cannot entertain the application\r\nunder Order XLI Rule 27 of CPC, it will result in defeating the valuable rights\r\nof the parties. Law cannot be static and its interpretation has to be dynamic.\r\nTherefore, this Court is of the view that the present case on hand, warrants\r\nindulgence at the hands of this Court though arising out of a revision petition\r\nfiled under section 115 of CPC. I am </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the firm view\r\nthat in the present case on hand, the additional evidence deserves to be taken\r\non record.</span></b></p><p class=\"MsoNormal\" style=\"margin-top:3.85pt;margin-right:84.1pt;margin-bottom:\r\n0cm;margin-left:0cm;margin-bottom:.0001pt\"><span lang=\"EN-US\"><b><o:p></o:p></b></span></p>\r\n\r\n<span lang=\"EN-US\" style=\"font-size:11.0pt;font-family:\"Verdana\",sans-serif;\r\nmso-fareast-font-family:Verdana;mso-bidi-font-family:Verdana;mso-ansi-language:\r\nEN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA\"><b><br clear=\"all\" style=\"page-break-before:always;mso-break-type:section-break\"></b></span><p class=\"MsoNormal\" style=\"margin-right:29.1pt;line-height:200%;tab-stops:108.4pt\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoBodyText\" style=\"margin-top:0cm;margin-right:28.95pt;margin-bottom:\r\n0cm;margin-left:36.35pt;margin-bottom:.0001pt;line-height:200%\"><span lang=\"EN-US\"><b><o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin-right:29.1pt;line-height:200%;tab-stops:108.4pt\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoBodyText\" style=\"margin-top:0cm;margin-right:28.9pt;margin-bottom:\r\n0cm;margin-left:36.35pt;margin-bottom:.0001pt\"><span lang=\"EN-US\"><b><o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin-right:29.1pt;line-height:200%;tab-stops:108.4pt\"><b><span style=\"text-align: justify; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br><br></span></b></p><p class=\"MsoBodyText\" style=\"margin-right:28.85pt;text-align:justify\"><span lang=\"EN-US\"><o:p></o:p></span></p></div></div></div></div>', '8b50cb08c907cbba9970cac17f241527.jpg', '8600a58474e850727f465d93dc24535a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-06', 1, '', '', '2022-03-07 02:52:28', '2022-03-07 02:52:58'),
(1376, '2eaqBZz4Qc1Qgn6tvFVplDMFH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transport vehicle and omnibus, when gross weight does not exceed 7500 kg would be a light motor vehicle. Holder of LMV driving licence is competent to drive such transport vehicle only when the weight does not exceed the limit. Karnataka High Court.', '<p><b>Mahantesh vs Nethravati and others. <br>Miscellaneous First Appeal 100096 of 2019 decided on 25 February 2022</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">This appeal is preferred by the owner of the offending tipper  lorry  bearing  registration  No.KA- 27/ A- 8377 against the judgment and award  dated 03.10.2018 passed by the Motor Accident Claims Tribunal, Haveri ( hereinafter referred to as the ‘Tribunal’, for brevity) in MVC No. 218/ 2015 on the ground of liability as well as on the quantum of compensation awarded by the Tribunal.</b></p><p><b>8. The undisputed facts of the case are that in the road  traffic  accident  that   had   occurred   on  23. 11. 2014, wherein the offending tipper lorry bearing registration No. KA- 27/ A- 8377 was involved, the minor daughter of the claimants baby Kalpana, aged about 2 years had died. It is not in dispute that the offending tipper lorry which was involved  in  the  accident  was  duly insured with the  3rd  respondent- Insurance Company and as on the  date  of  accident,  the  said policy was in force. The Tribunal had exonerated the liability of the insurer to pay the compensation on the ground that the driver of the offending lorry did not possess valid and effective driving licence to drive a  heavy goods vehicle as on the date of accident. The vehicle in question was a tipper lorry  and the material  on record would go to show that  the  unladen weight of the said vehicle which is categorized as a heavy goods </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">vehicle is 6190 and the gross weight of the said vehicle is 16200 kg.</b></p><p><b>9. Learned counsel for the appellant has submitted that since the unladen weight of the vehicle involved in the accident, though it is a heavy goods vehicle, is less than 7500 kg and therefore the  same has to be considered as a light motor vehicle and accordingly the insurer of the offending vehicle is required to be saddled with the liability to pay the compensation. The question whether transport vehicle and omnibus, the gross vehicle weight of either  of which does not exceed 7500 kg would be a light motor vehicle and the holder of licence to drive class of light motor vehicle as provided in Section 10( 2)( d) would be competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg was referred to larger bench by a division bench of the Hon’ble Supreme Court in the case of Mukund Dewangan V/s   Oriental   Insurance   Company Limited and others  reported  in  (2016)  4  SCC  298 and the Hon’ble Supreme Court in the case of Mukund </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Dewangan V/s   Oriental   Insurance   Company Limited reported in (2017) 14 SCC  663  while answering the said question has held that a transport vehicle and omnibus, gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and the holder of driving licence to  drive class of light motor vehicle as provided in Section 10( 2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. Therefore, there is no merit in the contention of the learned counsel for the appellant that the Tribunal had erred in exonerating the liability of the insurer and that the Tribunal had not properly appreciated the judgment of the Apex Court in the case  of  Mukund Dewangan V/s  Oriental Insurance  Company  Limited   reported in (2017) 14 SCC  663.  The  vehicle in  question which is categorized as a heavy goods vehicle comes within the meaning of Section 2( 16) of the Motor Vehicles Act, 1988 as the gross vehicle weight undisputedly exceeds 12000 kg. Under the circumstances, the Tribunal was fully justified in holding that the offending vehicle was </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">used in violation of the terms and conditions of the policy and therefore the insurer of  the  offending vehicle was not liable to pay the compensation. I find  no illegality or irregularity with regard to the finding recorded by the Tribunal insofar as it relates to exonerating the liability of the insurer and holding the insured/owner of the offending vehicle liable to pay the compensation.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. The judgment in the case of Lakshmamma and others  reported  in  ILR 1996  Karnataka  2220 was rendered by the co-ordinate bench of this Court much prior to the judgment of the Hon’ble Supreme Court in the case of Mukund Dewangan ( supra). The Hon’ble Supreme Court in the case of Mukund Dewangan has held that a transport vehicle, the gross weight of which does not exceed 7500 kg would be a light motor vehicle and the holder of the driving licence to drive class of light motor vehicle as provided under Section 10( 2)( d) is competent to drive a transport vehicle, the gross vehicle weight does not exceed 7500 kg. The word “ gross vehicle weight” as defined in </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 2( 15) of the Act means, in respect of any vehicle, the total weight of the vehicle and  load certified and registered by the registering authority as permissible for that vehicle. Ex.R1 which is the ‘B’ register extract of the offending vehicle would go to show that the registered laden weight of the said  vehicle is 16200 kg which is much more than 7500 kg. Therefore, the gross weight of the offending vehicle if considered as 16200 kg, the said vehicle is required to be considered as a heavy goods vehicle in view of Section 2( 16) of the Act, which states that any goods carriage the gross weight of which exceeds 12000 kg would be considered as heavy goods vehicle. In view of the judgment of the Hon’ble Supreme Court in the case of Mukund Dewangan, the judgment in the case of Lakshmamma and others reported in ILR 1996 Karnataka 2220 is therefore no more a good law.</b></p><p><b>11. In the case of  Sarasa  Bhandarthi and others, the co- ordinate bench of this Court having taken into consideration that the driver  of  the offending vehicle was having a driving licence to drive </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">light motor vehicle and also heavy goods transport vehicle has held that in the said case that there was no breach of terms and conditions of the policy. However in the case on hand, the driver of the offending vehicle admittedly possessed only a driving licence to drive light motor vehicle and he does not possess driving licence to drive heavy transport vehicle and therefore the judgment in the case of Sarasa Bhandarthi and others cannot be made applicable to the present case.</b></p><p><b>14.<span style=\"white-space:pre\">	</span>The appellant who is the owner of the offending tipper lorry is directed to deposit the balance amount of compensation with interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this order.</b></p><p><b>15.<span style=\"white-space:pre\">	</span>The amount in deposit before this Court is directed to be transferred to the Tribunal for the purpose of disbursement. The order passed by the Tribunal insofar as it relates to apportionment, disbursement and deposit etc.,  remains  unaltered.  The Miscellaneous First Appeal is accordingly partly allowed.</b></p><p><br></p>', 'bf3e67f2ad4386c7af8285174dcc7767.jpg', '3c2f7bb5f4025db22e7c1eece5836bb1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-06', 1, '', '', '2022-03-07 04:07:08', '2022-03-07 04:08:19'),
(1377, 'MWD68TykitJDfB2P7zfeZIISH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bar under the Karnataka Education Act does not apply for filing civil suit when the teacher seeks arrears of salary from the educational institution. Karnataka High Court. ', '<p><b>Rabiya Abdul Hamid Bepari vs The Chairman School Managing Committee and others<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Regular First Appeal 100061 of 2021 decided on 24 February 2022</span></b></p><p><b>18. A careful reading of the plaint averments and more particularly, the prayer made in the plaint by the present appellant in Original Suit No.547/2018 makes it very clear that the claim of the plaintiff against the defendants in the original suit is for the alleged arrears of the salary.&nbsp; In the very plaint itself, the plaintiff is said to have made clear that she is not claiming any continuation of her service in the Institution of the defendants since the very Institution is said to have been closed from 01.06.2015. As such, even according to the plaintiff, her cessation of work under the respondents has not been challenged by her in any manner, in any forum. Therefore, it is clear from the plaint that the plaintiff has not considered the cessation of her work / employment with the respondents as a dismissal or removal. Admittedly, it cannot be a reduction in the rank. Therefore, when the stoppage of the work of the plaintiff with the defendants’ - establishment cannot be considered as a dismissal or removal or even as reduction of rank, the question of she preferring any appeal under section 94 to the Tribunal would not arise.</b></p><p><b>Even under section 96 of the Education Act, the Educational Appellate Tribunal may consider the order which is alleged to be arbitrary, perverse, mala fide or violative of rules of natural justice. Admittedly in the instant case, no such order has been passed. Therefore, when the plaintiff has not called the act of the defendants as an act of her dismissal or removal from the services, the appeal will not lie under section 94 of the Education Act.</b></p><p><b>19. A Co-ordinate Bench of this Court in SHANKARAPPA SHARANAPPA GAURE&nbsp; vs.&nbsp; THE&nbsp; DEPUTY&nbsp; DIRECTOR OF PUBLIC INSTRUCTIONS, BIDAR &amp; OTHERS&nbsp; reported in 1998 SCC OnLine Karnataka 599, while analyzing the scope of section 94 of the Education Act, was pleased to observe, in para 9 of its judgment that, a bare reading of section 94 of the Education Act clearly shows that any teacher or other employee of a private educational institution can prefer an appeal to the Tribunal only when dismissed, removed or reduced in rank within the prescribed time and no appeal can be entertained by the Tribunal against an order of any other nature even if it pertains to the service conditions.</b></p><p><b>In the same judgment, at para 10, it was further observed that, so far as the other orders passed by the Management against which the employees may have grievance are concerned, those can be assailed only by way of revision under section 131 of Education Act.<br></b></p><p><b>20.<span style=\"white-space:pre\">	</span>In the instant case, even according to the&nbsp; parties, the cessation of the work of the plaintiff by the defendants is neither dismissal nor removal nor even a reduction in rank. Admittedly, the plaintiff is not challenging the alleged letter of dischargal, if any, written by the defendants. Thus, the alleged cessation of the work, in any&nbsp; of its nomenclature, is not a matter of dispute. The only question of dispute is the alleged entitlement of the plaintiff for the alleged arrears of salary. Thus, when there is no dismissal or removal or reduction in rank, the appeal would&nbsp;&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not lie under section 94 of the Education Act. Admittedly, no order regarding the claim of the plaintiff towards her alleged arrears of salary has been passed by the defendants. As such, in the absence of any such order passed by the Management against the alleged claim of the plaintiff, she cannot take the grievance even in the form of a revision under section&nbsp; 131&nbsp; of&nbsp; the&nbsp; Education&nbsp; Act.&nbsp; Therefore remedy available, when it is neither in the form of an appeal before the Tribunal nor in the form of a revision under section 131 of the Education Act, it ought to be only before a competent Civil Court.</span></b></p><p><b>No doubt, section 96 sub-section (5) of the Education Act states that, no Civil Court shall have jurisdiction in respect of matters over which the Tribunal exercises any power under the Education Act, but the analysis made above shows that, with respect to the claim made by the plaintiff in her plaint, the Tribunal cannot exercise its power, since it is not an order of dismissal, removal or reduction in the rank. Thus, the bar under section 96(5) of the Education Act is also&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not attracted. Thus, the competent Civil Court cannot say that it has got no jurisdiction under section 96(5) of the Education Act. However, the Trial Court without noticing the absence of any order of dismissal, removal or reduction of the rank as the subject matter of litigation, has embraced section 94 and section 96 of Education Act and erroneously held that the remedy available to the plaintiff is only under section 96(3)(a) of the Education Act. Since the said finding now proved to be an erroneous finding, the same deserves to be reversed and the matter requires to be restored on the file of the Trial Court for its further proceeding in accordance with law.</b></p><p><b>The appeal is allowed</b></p><div><br></div><p class=\"MsoBodyText\" style=\"margin-top:0cm;margin-right:49.6pt;margin-bottom:\r\n0cm;margin-left:43.55pt;margin-bottom:.0001pt;text-align:justify;line-height:\r\n200%\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a1e4fe82a9689bca3fb718518a38ea3b.JPG', 'b7d1a71c5c22d2e4b16bee41aa84b3b4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-07', 1, '', '', '2022-03-08 03:04:20', '2022-03-08 03:04:20'),
(1378, 'iAvMROnGOkA8mV6bNXWIqKbsB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'POCSO Act. Investigation Officer shall inform victim’s parents and legal counsel about bail application or any other application by the accused or the prosecution in the proceedings. Karnataka High Court. ', '<p><b>Bibi Ayesha Khanum and others vs Union of India and others. <br>Writ Petition 2318 of 2022 decided on 23 February 2022<br>Chief Justice Ritu Raj Awasthi and Justice Suraj Govindaraj. </b></p><p><b>4. The grievance of the petitioners is that in\r\nprosecution for offences under the POCSO Act\r\nwhen the accused were to move the Court for\r\ngrant of bail, the defacto complainant and/or\r\ncaregiver of the minor victim are not informed of\r\nthe application filed for bail, thereby an\r\nopportunity to the complainant/victim or\r\ninformants/caregiver to place their contentions\r\nand/or oppose an application for bail is denied. </b></p><p><b>5. The petitioners are stated to be mothers of\r\nchildren who have been subjected to sexual\r\noffences punishable under the POCSO Act, the\r\npetitioners being the complainants or informants\r\nin the complaints registered under the provisions\r\nof POCSO Act, the petitioners being the\r\ncomplainants or informants in the complaints\r\nregistered under the provisions of the POCSO Act\r\nhave gone through an harrowing time inasmuch\r\nas in the proceedings which had been initiated\r\nagainst the accused, the petitioners were not\r\nprovided with an opportunity to object to the\r\nsame and as such the accused having been\r\ngranted bail without consideration of any\r\nobjections that they had. It is with an intention\r\nthat similar situations are not faced by the\r\nmothers who are the complainants or informants\r\nand/or other complainants and informants in\r\nPOCSO matters that the present petition has\r\nbeen filed.</b></p><p><b>15. The benefit of Article 21 of the constitution is not\r\nonly available to the accused but also to the\r\nvictims and their families of any criminal offence.\r\nFor an orderly society to exist it is but required\r\nthat the victims of criminal offences more particularly heinous offences have a say in the\r\ncriminal prosecution of the accused.</b></p><p><b> \r\n17.1.The Investigation officer or the SJPU shall\r\ninform the Victim’s\r\nparents/caregiver/guardian as also the legal\r\ncounsel if appointed, about any application\r\nfor bail or any other application having been\r\nfiled by the accused or the prosecution in\r\nthe said proceedings.\r\n<br>17.2.The public prosecutor shall serve a copy of\r\nany application or objections to be filed in\r\nthe said proceedings on the Victim’s\r\nparents/caregiver/guardian as also the legal counsel if appointed and issue notice of\r\nhearing of such application on them, along\r\nwith all relevant documents and records\r\nnecessary for their effective participation in\r\nthe proceedings, in this regard the\r\nprosecutor is entitled to take the assistance\r\nof the Investigating Officer or the SJPU and\r\nfile necessary proof of service of copies and\r\nnotice of hearing. In the unlikely event of\r\nservice not being effected it shall be the\r\nduty of the Prosecutor to inform the reasons\r\nin writing to the relevant court.\r\n<br>17.3.The Accused or the counsel for the accused\r\nshall serve a copy of any application or\r\nobjections to be filed in the said proceedings\r\non the Victim’s parents/caregiver/guardian\r\nas also the legal counsel if appointed and\r\nissue notice of hearing of such application\r\non them, along with all relevant documents\r\nand records necessary for their effective\r\nparticipation in the proceedings. The Accused or the Counsel for the Accused to\r\nfile necessary proof of service of copies and\r\nnotice of hearing. In the unlikely event of\r\nservice not being effected it shall be the\r\nduty of the Accused or Counsel for the\r\nAccused to inform the reasons in writing to\r\nthe relevant court.\r\n<br>17.4. In the event of the accused being a close\r\nfamily member or an acquaintance of the\r\nfamily, in addition to the above a copy of\r\nany application or objections to be filed in\r\nthe said proceedings shall be served on the\r\njurisdictional Child Welfare Committee\r\n(CWC) and issue notice of hearing of such\r\napplication on CEC, along with all relevant\r\ndocuments and records necessary for their\r\neffective participation in the proceedings;\r\n<br>17.5.The concerned Court, before proceeding to\r\nhear the application, shall ascertain the\r\nstatus of service of notice, and if it is found that notice has not been issued or though\r\nissued has not been served, the Court may\r\nmake such reasoned order as it deems fit to\r\nsecure the ends of justice, taking into\r\naccount any emergent circumstances that\r\nwarrant dealing with the application in the\r\nabsence of the Victim’s parents/caregiver/\r\nguardian or legal counsel.\r\n<br>17.6.Despite service of the above notice, if none\r\nwere to appear, the Court may proceed\r\nfurther or issue a fresh notice, as the Court\r\nmay deem fit and proper, considering the\r\ninterest of justice.\r\n17.7.When the proceedings under the POCSO Act\r\nalso involve offences under Sections 376(3),\r\n376-AB, 376-DA or 376-DB of the Indian\r\nPenal Code, the notice to the victim shall be\r\nissued under Section 439(1-A) read with\r\nRule 4(13) and 4(15). <br>17.8.Whenever an accused who is charged under\r\nSections 376(3), 376-AB, 376-DA or 376 DB\r\nof the IPC or the provisions of the POCSO\r\nAct, moves an application for bail be it\r\nregular, interim, transit or any other\r\nclassification, notice shall be issued by the\r\nAccused to the Investigating officer, SJPU,\r\nPublic Prosecutor as also any counsel on\r\nrecord for the victim/\r\ncomplainant/informant;\r\n<br>17.9. The victim/complainant/informant who\r\nappears before the Court may be\r\nrepresented by own counsel or by a counsel\r\nappointed by the Karnataka State Legal\r\nService Authority or the concerned District\r\nLegal Services Authority/Taluka Legal\r\nServices Authority.\r\n<br>17.10. The state Government to provide for\r\nsufficient funds in order to make payments\r\nto the counsel so appointed. <br>17.11. On service of notice on the Victim’s\r\nparents/caregiver/guardian as also the legal\r\ncounsel, they are to be informed about the\r\nprotection available under Witness\r\nProtection Scheme, 2018 and enquire if\r\nthey require any such protection, if there is\r\na request made for police protection, the\r\nsame shall be considered and granted in\r\nterms of the Witness Protection Scheme\r\n2018. In the event of information being\r\nprovided by a whistleblower necessary\r\nprotection to be provided in terms of The\r\nWhistle Blowers Protection Act, 2014. </b><br></p>', '28ab632350b9cee581b33367f020ff1a.jpg', 'e221e6009841cbf38894c64ba4aa577c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-07', 1, '', '', '2022-03-08 03:47:19', '2022-03-10 19:45:23');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1379, 'pvH8V0Px2wNa8X00sUAsryd1i', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Caste Certificate and Creamy Layer Certificate cannot be treated alike. Caste Certificate status is permanent whereas Creamy Layer Certificate status varies from time to time depending on income. Karnataka High Court.  ', '<p><b>The Selection Authority vs Geetha Dattatreya Gokarn<br>Writ Petition 103063 of 2021 decided on 23 February 2022<br>Justice S.G. Pandit and Justice Anant Ramanath Hegde</b></p><p><b><span style=\"font-size: 12pt; text-indent: 0cm; font-family: var(--bs-font-sans-serif);\">11. Caste Certificate and Income\r\nCertificate issued under 1990 Act are two different and distinct certificates.\r\nBoth certificates cannot be treated alike. In respect of caste certificate, for\r\nexample, if a person is Scheduled Caste or Scheduled</span><span style=\"font-size: 12pt; text-indent: 0cm; font-family: var(--bs-font-sans-serif); letter-spacing: 1.8pt;\"> </span><span style=\"font-size: 12pt; text-indent: 0cm; font-family: var(--bs-font-sans-serif);\">Tribe,</span><span style=\"font-size: 12pt; text-indent: 0cm; font-family: var(--bs-font-sans-serif); letter-spacing: 1.95pt;\"> </span><span style=\"font-size: 12pt; text-indent: 0cm; font-family: var(--bs-font-sans-serif);\">he</span><span style=\"font-size: 12pt; text-indent: 0cm; font-family: var(--bs-font-sans-serif); letter-spacing: 1.9pt;\"> </span><span style=\"font-size: 12pt; text-indent: 0cm; font-family: var(--bs-font-sans-serif);\">is</span><span style=\"font-size: 12pt; text-indent: 0cm; font-family: var(--bs-font-sans-serif); letter-spacing: 1.9pt;\"> </span><span style=\"font-size: 12pt; text-indent: 0cm; font-family: var(--bs-font-sans-serif);\">so</span><span style=\"font-size: 12pt; text-indent: 0cm; font-family: var(--bs-font-sans-serif); letter-spacing: 1.95pt;\"> </span><span style=\"font-size: 12pt; text-indent: 0cm; font-family: var(--bs-font-sans-serif);\">by</span><span style=\"font-size: 12pt; text-indent: 0cm; font-family: var(--bs-font-sans-serif); letter-spacing: 1.85pt;\"> </span><span style=\"font-size: 12pt; text-indent: 0cm; font-family: var(--bs-font-sans-serif);\">birth</span><span style=\"font-size: 12pt; text-indent: 0cm; font-family: var(--bs-font-sans-serif); letter-spacing: 1.95pt;\"> </span><span style=\"font-size: 12pt; text-indent: 0cm; font-family: var(--bs-font-sans-serif);\">and</span><span style=\"font-size: 12pt; text-indent: 0cm; font-family: var(--bs-font-sans-serif); letter-spacing: 1.85pt;\"> </span><span style=\"font-size: 12pt; text-indent: 0cm; font-family: var(--bs-font-sans-serif);\">not</span><span style=\"font-size: 12pt; text-indent: 0cm; font-family: var(--bs-font-sans-serif); letter-spacing: 1.85pt;\"> </span><span style=\"font-size: 12pt; text-indent: 0cm; font-family: var(--bs-font-sans-serif);\">by</span><span style=\"font-size: 12pt; text-indent: 0cm; font-family: var(--bs-font-sans-serif); letter-spacing: 1.85pt;\"> </span><span style=\"font-size: 12pt; text-indent: 0cm; font-family: var(--bs-font-sans-serif);\">any </span><span style=\"text-align: justify; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">subsequent event or development. A caste certificate\r\nissued by the competent authority is only an affirmation of fact which is in\r\nexistence, i.e., caste status. But in so far</span><span style=\"text-align: justify; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> \r\n</span><span style=\"text-align: justify; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as Income certificate issued by the competent authority is concerned,\r\ndepends on the income of the parents of a candidate concerned existed as on the\r\ndate of issuing such certificate. There is a purpose behind prescribing the\r\nperiod of validity of income certificate to five years. The income may increase\r\nor decrease, depending on his avocation/ profession or employment. Government\r\nservants/ employees or salaried class would have a steady increase in their\r\nincome from year to year. For professionals, businessmen and such persons in\r\nother avocation income may increase or</span><span style=\"text-align: justify; font-family: var(--bs-font-sans-serif); font-size: 1rem; letter-spacing: -0.05pt;\"> </span><span style=\"text-align: justify; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">decrease.</span></b></p><p><b><span style=\"font-size: 12pt; text-align: justify; font-family: var(--bs-font-sans-serif);\">13. In the instant case, the creamy layer certificate\r\nproduced by the applicant is placed on record as Annexure-A6. The said\r\ncertificate is dated 31.10.2006.  The\r\nsaid certificate is more than five years prior to the last date for submission\r\nof application, i.e., 10.05.2012. The said creamy layer certificate has expired\r\nin view of the time prescribed under the 1992 Rules which is extracted above.\r\nHence, the selecting authority or appointing authority could not have given any\r\ncredence to the said creamy layer certificate dated 31.10.2006. The creamy\r\nlayer certificate dated 31.10.2013 produced along with the representation is a\r\ncertificate obtained subsequent to preparation of the additional select list\r\ni.e. more than one and half year after last date for submission of application\r\nand the same cannot be taken note of for selection, since  it</span><span style=\"font-size: 12pt; text-align: justify; font-family: var(--bs-font-sans-serif); letter-spacing: 2.75pt;\"> </span><span style=\"font-size: 12pt; text-align: justify; font-family: var(--bs-font-sans-serif);\">is</span><span style=\"font-size: 12pt; text-align: justify; font-family: var(--bs-font-sans-serif); letter-spacing: 2.7pt;\"> </span><span style=\"font-size: 12pt; text-align: justify; font-family: var(--bs-font-sans-serif);\">not</span><span style=\"font-size: 12pt; text-align: justify; font-family: var(--bs-font-sans-serif); letter-spacing: 2.8pt;\"> </span><span style=\"font-size: 12pt; text-align: justify; font-family: var(--bs-font-sans-serif);\">within</span><span style=\"font-size: 12pt; text-align: justify; font-family: var(--bs-font-sans-serif); letter-spacing: 2.95pt;\"> </span><span style=\"font-size: 12pt; text-align: justify; font-family: var(--bs-font-sans-serif);\">the</span><span style=\"font-size: 12pt; text-align: justify; font-family: var(--bs-font-sans-serif); letter-spacing: 2.75pt;\"> </span><span style=\"font-size: 12pt; text-align: justify; font-family: var(--bs-font-sans-serif);\">last</span><span style=\"font-size: 12pt; text-align: justify; font-family: var(--bs-font-sans-serif); letter-spacing: 2.65pt;\"> </span><span style=\"font-size: 12pt; text-align: justify; font-family: var(--bs-font-sans-serif);\">date</span><span style=\"font-size: 12pt; text-align: justify; font-family: var(--bs-font-sans-serif); letter-spacing: 2.75pt;\"> </span><span style=\"font-size: 12pt; text-align: justify; font-family: var(--bs-font-sans-serif);\">prescribed</span><span style=\"font-size: 12pt; text-align: justify; font-family: var(--bs-font-sans-serif); letter-spacing: 2.7pt;\"> </span><span style=\"font-size: 12pt; text-align: justify; font-family: var(--bs-font-sans-serif);\">under<span style=\"letter-spacing: 3.66667px;\"> </span></span><span style=\"font-size: 12pt; text-align: justify; font-family: var(--bs-font-sans-serif);\">the </span><span style=\"text-align: justify; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">notification inviting application. The clause 26 –\r\nGeneral Instructions requires a candidate to obtain the certificates with\r\nregard to reservation and other benefits, prior to the last date for submitting\r\nthe application and to produce the same for verification when called for. It\r\nalso makes it clear that failing to produce such certificate, the candidate\r\nwould not be entitled to reservation. The purpose behind the condition to\r\nobtain certificates prior to the last date for submitting application is to\r\ndetermine eligibility as on the last date for submitting application. It is\r\nsettled position of law that the eligibility in all respects in a recruitment\r\nprocess shall have to be determined as on the last date for submitting\r\napplication. The other reason for</span><span style=\"text-align: justify; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">  </span><span style=\"text-align: justify; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">such\r\ncondition is that income would vary from year to year depending on the\r\navocation carried on by each person. Thus, both the certificates produced by\r\nthe petitioner cannot be looked into and as such the selecting / appointing\r\nauthority has rightly rejected those</span><span style=\"text-align: justify; font-family: var(--bs-font-sans-serif); font-size: 1rem; letter-spacing: -0.9pt;\"> </span></b><span style=\"text-align: justify; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>certificates.<br></b></span></p><div style=\"text-align: justify;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 12pt; text-align: left; text-indent: 0cm;\"><b><br></b></span></div><div style=\"text-align: justify;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 12pt; text-align: left; text-indent: 0cm;\">15. In the instant case we are dealing\r\nwith the submission of creamy layer certificate subsequent to publication of\r\nselection list. As stated above, both caste certificate and creamy layer\r\ncertificate are two different certificates and both certificates cannot be\r\ntreated alike.  As held by the Apex Court\r\nin several decisions, caste of a person is by birth and not by acquisition of\r\nany event taking place subsequently. The creamy layer certificate or income\r\ncertificate would depend on the income of a person from his avocation or\r\nprofession or employment as on the date of issuing such certificate. Income of\r\na person whether he is a Government Servant, businessman, professional or\r\ncoolie would definitely vary from time</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 12pt; text-align: left; text-indent: 0cm; letter-spacing: 0.15pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 12pt; text-align: left; text-indent: 0cm;\">to </span><span style=\"font-family: Verdana, sans-serif; font-size: 11pt; text-align: left;\">time.<br><br></span></b></div><div style=\"text-align: justify;\"><b><span style=\"font-family: Verdana, sans-serif; font-size: 11pt; text-align: left;\">17. </span><span lang=\"EN-US\" style=\"text-indent: 0cm; font-family: var(--bs-font-sans-serif); font-size: 12pt; text-align: left; line-height: 200%;\">Therefore, we are of the view that\r\nthe Tribunal committed an error in allowing the application.<span style=\"letter-spacing:.25pt\"> </span>We find </span><span style=\"font-family: Verdana, sans-serif; font-size: 11pt; text-align: left;\">force\r\nin the contentions raised by the respondent- Government in the writ petition. <br><br></span></b></div><div style=\"text-align: justify;\"><span lang=\"EN-US\" style=\"font-size:11.0pt;font-family:\r\n\"Verdana\",sans-serif;mso-fareast-font-family:Verdana;mso-bidi-font-family:Verdana;\r\nmso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA\"><b>Writ\r\npetition is allowed,</b></span><span style=\"font-family: Verdana, sans-serif; font-size: 11pt; text-align: left;\"><br></span></div><p></p><p class=\"MsoListParagraph\" style=\"margin-top:0cm;margin-right:32.7pt;margin-bottom:\r\n0cm;margin-left:57.95pt;margin-bottom:.0001pt;text-indent:0cm;line-height:200%;\r\nmso-list:l0 level1 lfo1;tab-stops:94.05pt\"><span lang=\"EN-US\" style=\"font-size:12.0pt;\r\nmso-bidi-font-size:11.0pt;line-height:200%\"><o:p></o:p></span></p><p class=\"MsoBodyText\" style=\"margin-top:11.35pt;margin-right:32.7pt;margin-bottom:\r\n0cm;margin-left:58.0pt;margin-bottom:.0001pt;text-align:justify;line-height:\r\n200%\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f9f344b3f3a6758df2e287f7d976e084.JPG', 'b8d4e89343f55a53fce3b14029fc1553.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-07', 1, '', '', '2022-03-08 04:21:45', '2022-03-08 04:26:32'),
(2684, 'rRAEZSt6c7UWvh3kqb1pGHJ9X', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Even adopted children are entitled for compassionate appointment. Rule to the contrary is violative of Article 14 of the Constitution of India. Karnataka High Court.', '<p><b>Kumari Sweta vs The Managing Director, KPTCL and others. <br></b></p><p><b>Writ Petition 211068 of 2020 decided on 23 February 2022</b></p><p><b>Justice E.S.Indiresh</b></p><p><b><span style=\"font-size: 12pt; text-align: justify; text-indent: 36pt; font-family: var(--bs-font-sans-serif);\">In this writ petition, petitioner has challenged the endorsement dated 09</span><sup style=\"text-align: justify; text-indent: 36pt; font-family: var(--bs-font-sans-serif);\">th</sup><span style=\"font-size: 12pt; text-align: justify; text-indent: 36pt; font-family: var(--bs-font-sans-serif);\"> December, 2019 issued by the respondent-Corporation, declining the claim made by the petitioner for appointment on compassionate ground.</span></b></p><p><b><span style=\"text-align: justify; text-indent: 48px; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. </span><span style=\"text-align: justify; text-indent: 48px; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the present case, undisputedly, petitioner has been adopted by deceased Puspha, an employee of respondent corporation, and adoption of the petitioner is witnessed by registered Deed of Adoption. The adoption is not disputed by  any person related to deceased Pushpa and the Deed of Adoption is not questioned in any proceedings and therefore, when there is no dispute about the deed of adoption being the </span><span style=\"text-align: justify; text-indent: 48px; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">registered document, the presumption as to the said document relating to adoption as engrafted by the legislature in Section 16 of the Hindu Adoption and Maintenance Act, 1956 (for short hereinafter referred to as the `Act\'), becomes relevant.</span></b></p><p><b><span style=\"text-align: justify; text-indent: 48px; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12. </span><span style=\"text-align: justify; text-indent: 48px; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">It is evident from the aforesaid Section that after adoption takes place, the ties of the adopted person are permanently disconnected with his family for all intents and purposes. </span></b></p><p><b><span style=\"text-align: justify; text-indent: 48px; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">14. </span><span style=\"text-align: justify; text-indent: 48px; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In view of the amendment made by the State Government to the aforementioned Rules which is applicable to the government servants therein and therefore, extending similar benefits to respondent-Corporation being an “other authority” under Article 12 of the Constitution of India cannot be ruled out and therefore, I am of the opinion that extending the very same benefit to the dependent (adopted son/daughter) of the deceased employee of the respondent-Corporation would satisfy the intent of Article 14 of the Constitution of India, if not, it would be arbitrary to say that only natural children would be dependent and adopted children, who are treated to be as natural children under Section 12 of the Act for all intents and purposes, not to be dependents under a particular Scheme or Rules or Circular or Regulations, amounts to discrimination under Article 14 of the Constitution of India.</span></b></p><p><b><span style=\"text-align: justify; text-indent: 48px; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20.</span><span style=\"text-align: justify; text-indent: 48px; font-family: var(--bs-font-sans-serif); font-size: 1rem; white-space: pre;\">	</span><span style=\"text-align: justify; text-indent: 48px; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the light of the discussion made above, the action of the respondent-Corporation making distinction between the adopted child and a natural child and not treating the former as “dependent” for the purposes of appointment on compassionate ground, is totally illogical and arbitrary and therefore, said action cannot form the basis for denying the right of appointment on compassionate ground to the petitioner herein, if she is otherwise qualified. Accordingly, the respondent-Corporation is directed to reconsider the case of the petitioner for the purpose appointment on compassionate ground in accordance with law. In the result, I pass the following:</span><span style=\"text-align: justify; text-indent: 48px; font-family: var(--bs-font-sans-serif); font-size: 1rem; white-space: pre;\">	</span></b></p><p><span style=\"text-align: justify; text-indent: 48px; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Writ petition is allowed</b></span></p>', '0d27d491f0bc36fbac5106f50ec92d3d.jpeg', 'd0935890e9cd6239e871fa538460a029.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-16', 1, '', '', '2023-02-16 11:05:10', '2023-02-16 19:46:02'),
(2685, 'prLgvTrBEnTSEiqlqrVOq9vuz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Once the lands have vested in the State for a public purpose, the erstwhile owners cannot seek their restoration on the ground that they were put to use for some other public purpose. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Doddamma Vs The State of Karnataka and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 2848 of 2008 decided on 1 February 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Krishna S Dixit.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">All these petitions broadly having common law &amp; facts, are filed by the land owners for laying a challenge to the acquisition of their lands under the provisions of the Karnataka Industrial Areas Development Act, 1966</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. After service of notice, the State being the acquiring body has entered appearance through the AGA; the KIADB and its SLAO have entered appearance through their panel counsel and they have filed their objections. The allottee of the land being a respondent also is represented by its advocate and its has filed its Statement of Objections, opposing the Petitions. All the learned AGA, learned Panel Counsel for the KIADB &amp; learned counsel for appearing for the Education Trust making submission in justification of the impugned acquisition, controverting the Petition averments</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">4. Having heard the learned counsel for the parties and having perused the Petition Papers, although this&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court declines indulgence so far as, the challenge to acquisition is concerned; however, it is inclined to grant some relief to the land owners as under, and for the following reasons:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(a) In all these cases, the Preliminary Notification under section 28(1) came to be issued on 15.7.1994 and it was followed by the issuance of Final Notification on 22.7.1996 under section 28(4) of the KIAD Act, 1966. A Division of this Court having scanned the provisions of 1966 Act and the erstwhile Land Acquisition Act, 1894 in W.P.No.17600/2004 etc., between NANDI INFRASTRUCTURE CORRIDOR ENTERPRISE LIMITED vs. STATE &amp; OTHERS, disposed off on 15.06.2011 has held that once the Final Notification is issued, the land would vest in the State, whether award is passed or not, compensation is paid or not and possession is taken or not.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Thus, the scheme of acquisition under the 1966 Act is bit in variance with that of the 1894 Act, whereunder, the land will vest only after award is passed and possession is taken. That being the position, the grievance of the Petitioners that despite KIADB Resolution recommending denotification of these lands, the government is not justified in accomplishing the process of acquisition, is legally unsustainable.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(g) All the above having been said, two things stare at the culpable action of the State and the KIADB: Firstly, it hardly needs to be stated that when a public function/duty is to be discharged by a statutory authority, even when no time period is prescribed, the same has to be done within a reasonable time vide NEKKANTI RAMA LAKSHMI vs. STATE OF KARNATAKA 2017 SCC Online SC 1862. Decades have passed since the acquisition was notified, not even a rupee from the compensation has reached the hands of land losers. In a Welfare State, this is not a happy thing to happen. All this cannot go unscathed; some compensatory relief needs to be granted to the land owners for the culpable delay attributable to the State &amp; the KIADB. Secondly, the acquisition having been accomplished by issuance of the Final Notification, the lands have vested in the State; in W.P.No.3539/2006, admittedly no award has been passed; in other cases, although awards have been passed, nothing is placed on record to show that the award notices were sent to the land owners calling upon them to take the compensation.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(h) In what circumstances, the compensation came to be deposited by the KIADB in the jurisdictional court remains a mystery wrapped in enigma. The right to property although is not a fundamental right after the 42nd Amendment, it has been given constitutional guarantee u/a 300A. If the State &amp; its instrumentalities want to take private property, that can be done in p ublic interest and subject to payment of compensation. Not passing the award virtually amounts to non-payment of compensation; similarly, depositing the compensation amount in the court without informing the land owners, virtually amounts to withholding the compensation. All this militates against the spirit of Article 300A of the Constitution.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(i) A Coordinate Bench of this Court in W.P.No.108802/2016 (LA-KIADB) etc., between SREE S.SEENAPPA AND OTHERS VS. STATE AND OTHERS, disposed off on 18.7.2022, in more or less a similar fact matrix, has extended some additional benefit to the land losers on the lines of section 24 of the 2013 Act, in special&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">circumstances, where constitutional guarantees are breached, the State &amp; its instrumentalities cannot go with impunity. An argument to the contrary cannot be sustained without undermining the sanctity attached to the guarantee of property rights. The aggrieved citizens approach the court to have some redressal to their grievances much banking upon the spirit of constitutional guarantees. The constitutional courts cannot turn them away by quoting some jurisprudential theories. Justice Oliver Wendell Holmes in DAVIS vs. MILLS, 194 U.S. 451 (1904) had observed: “Constitutions are intended to preserve practical and substantial rights, not to maintain theories …”.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(j) At times courts have to individualize justice keeping in view the framework of law and exploring all possibilities of working out some just &amp; reasonable remedy in the facts &amp; circumstances of the case. Viewed from this angle, this Court is of a considered opinion that for the delay brooked in passing the award and paying the compensation, the owners of the petition lands should be&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">given an additional interest at 12% per annum to be reckoned from the date of the Final Notification or taking of the possession of the land, whichever is later. The extra financial burden incurred by the BDA on account of this may be made good by recovering the same in accordance with law from the erring officials.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">ORDER</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(i) These writ petitions succeed in part, although the challenge to the acquisition of the lands in question fails.&nbsp;</span></p>', 'd7552d237c5d9deeca49f2a475205ed7.JPG', '676e511d08e921a2c930ddcb6b5e1a60.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-16', 1, '', '', '2023-02-16 13:17:24', '2023-02-16 07:56:10'),
(1381, 'vFrxsGzw3ADALVVqy1J817iiD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'First of its kind; Karnataka High Court grants ‘John Doe’ injunction order against unknown defendant/respondent.    ', '<p style=\"text-align: justify; \"><span style=\"color: rgb(51, 51, 51); font-family: &quot;Helvetica Neue&quot;, Helvetica, Arial, sans-serif; font-size: medium; text-align: start;\"><b>Meera Ajit vs John Doe alias Ashok Kumar. Unknown persons. Residence unknown.&nbsp;<br>Miscellaneous First Appeal 806 of 2022. Order dated 5 March 2022</b></span></p><p style=\"text-align: justify; \"><font color=\"#212529\" face=\"-apple-system, BlinkMacSystemFont, Segoe UI, Roboto, Helvetica Neue, Arial, sans-serif, Apple Color Emoji, Segoe UI Emoji, Segoe UI Symbol, Noto Color Emoji\" size=\"4\"><b>ORDER ON I.A.NO.1/2022 Heard the appellant’s counsel. The appellant has sought an exparte order of temporary injunction against unknown first respondent, which order is popularly called ‘John Doe’ order. The events giving rise to this appeal are as below: The appellant has filed a suit, O.S.No.6488/2021, before the XXV Additional City Civil and Sessions Judge, Bengaluru for permanent injunction and mandatory injunction against five defendants, of whom the first defendant is an unknown person. Defendants 2 to 5 are the Commissioner, the Executive Engineer, the Assistant Executive Engineer and the Assistant Engineer of Bruhat Bengaluru Mahanagara Palike (BBMP) respectively. The property in respect of which the suit has been filed bears House List No.33, Khatha No.972/33 Thanisandra, 8th Cross, Bhuvaneshwari Nagara, Dasarahalli, Bengaluru. In the suit she filed an application as per IA No.2, for temporary injunction against ‘John Doe’ first defendant to restrain him from interfering with her peaceful possession of the suit property. The Trial Court declined to grant exparte order of temporary injunction. Though on facts it has come to conclusion that the plaintiff could not make out a prima-facie case for grant of temporary injunction, it has also held that if exparte temporary injunction against unknown defendant is granted, compliance under Order 39 Rule 3(a) and (b) of CPC cannot be effected and therefore exparte temporary injunction cannot be granted against unknown person/s. The learned counsel for the appellant submits that, if the plaintiff was aware of the name of the person who constructed a compound wall around the suit property, she would have definitely made them parties to the suit. All her efforts to ascertain the identity of the interferers failed and in order to protect her interest, she had to file a suit against ‘John Doe’ first defendant and other defendants who are the officials of BBMP. No relief is sought against BBMP officials in the application for injunction and it is only against ‘John Doe’ first defendant. The plaintiff purchased suit property under a registered sale deed 03.07.1995 for valuable consideration and she obtained katha from BBMP. These documents are produced before the Court. The plaintiff also produced photographs showing the construction of compound wall. The property is actually vacant. If injunction is not granted pending disposal of the suit, a building will be constructed and in that event, the plaintiff will lose possession. She made all her best efforts to trace the person who undertook construction of compound wall and completed it. She also approached the police, but they did not take any action. In these circumstances, the appellant was constrained to approach the Court. The Trial Court could have granted temporary injunction in order to protect the interest of the plaintiff, and for the reason that the Trial Court did not grant injunction and has actually given findings that the plaintiff has failed to make out a prima-facie case, the plaintiff has approached this Court by filing this appeal. He further submits that though the Trial Court has ordered notice on the application to defendants 2 to 5, the appeal is maintainable since the Trial Court has actually expressed its opinion that the plaintiff has failed to make-out a prima-facie case while declining to grant exparte temporary injunction. I have perused the plaint, the application and the documents that the appellant has produced. In the plaint it is stated that the plaintiff is the ordinary resident of Thrisur, Kerala and that she came to know that some unknown persons trespassed over her property and illegally erected compound wall. Then she approached Amruthahalli police station and requested the police to investigate and find out the trespassers. But, the police issued NCR stating that unknown persons might have raised illegal construction. Thus she could not trace the identity of the miscreants. The impugned order shows that the Trial Court has expressed its opinion that plaintiff has not made out prima-facie case. The application for temporary injunction was made against unknown first defendant, and since a clear opinion has been expressed by the Trial Court, the impugned order amounts to disposing of application for temporary injunction and therefore appeal is maintainable. The documents that the appellant has produced show that she purchased the suit property under a registered sale deed dated 03.07.1995 from one Erappa and Narayanamma, represented by their GPA holder Nageshwara Verma. She has produced katha extract issued in her name in respect of the suit property and also photographs showing various stages of construction of the compound. She has also produced the NCR endorsement dated 11.11.2021 issued by Amruthahalli police. If all these documents are perused, prima-facie conclusion can be formed that she could be having right over the suit property. And the photographs show compound walls having been constructed on two sides of a vacant site. It appears that adjacent property owners have constructed compound walls on other two sides. Order XXXIX Rule 1(a) CPC states that an order of temporary injunction may be granted against any party to the suit. According to Clauses (b) &amp; (c), injunction may be granted in favour of the plaintiff and against the defendant. The plaint must disclose the names and identity of the parties. But in a situation as has been made out in this case, if there is a threat to the possession of the plaintiff by unknown person/s, is it possible to say that injunction cannot be granted. I do not think that injunction can be denied if circumstances are as such that there is a serious threat to the possession of the plaintiff by unknown persons. Temporary injunction can certainly be granted to safeguard the interest of the plaintiff. But before granting an order of temporary injunction in a situation like this, the Court must be convinced that the plaintiff has made out a case of extreme urgency, that he is not misusing the situation and that he has tried his level best to trace the interferers. The Court must examine the case very scrupulously. Though compliance under Order XXXIX Rule 3 of CPC cannot be made by sending copies of the application for injunction, the affidavit, the plaint and the documents because the defendant is unknown person, yet it can be complied by taking out publication in news papers and affixing the order of grant of injunction on the conspicuous part of the suit property. If the appellant files an affidavit to this effect, it will be due compliance of Order XXXIX Rule 3 of CPC. Compliance can be made by sending copies through registered post if the name of the defendant is known, but in a circumstance like this, compliance can be made in the other modes. The Court must show ingenuity and think innovatively in a circumstance like this and then only ends of justice will be met. Responding to the paper publication or the notice affixed on the wall, if the person, against whom injunction operates, comes to Court, the application may be decided by hearing all the parties once again. Therefore I find that there is a case for granting ‘John Doe’ order against unknown first respondent. In this view the following: </b></font></p><p style=\"text-align: justify; \"><font color=\"#212529\" face=\"-apple-system, BlinkMacSystemFont, Segoe UI, Roboto, Helvetica Neue, Arial, sans-serif, Apple Color Emoji, Segoe UI Emoji, Segoe UI Symbol, Noto Color Emoji\" size=\"4\"><b>ORDER An order of temporary injunction is issued restraining the first ‘John Doe’ respondent/s from interfering with the appellant’s peaceful possession of the property bearing House List No.33, Khatha No.972/33 Thanisandra, 8th Cross, Bhuvaneshwari Nagara, Dasarahalli, Bengaluru. The appellant is hereby directed to comply with Order XXXIX Rule 3 in the following manner: a) She shall take out paper publication of this order in widely circulated Kannada and English Dailies of Bengaluru Edition; and b) Copy of the order and the appeal memo shall also be affixed on the outer part of the compound wall facing the road. This order must be complied within 24 hours and compliance affidavit shall be filed before closure of office hours of the Registry of this Court on 07.03.2022. If compliance affidavit is not filed, this order will not come into effect. The Registry of this Court shall issue the operative portion of this order with the schedule of the property to the appellant or her counsel for the purpose of publication in the newspapers and affixture to be effected. Amruthahalli police is hereby directed to find out the name of the person/s who have constructed the compound on two sides of the suit property and report the same to this Court so that the appellant can implead them as respondents. The Registry is directed to send copy of this order to Amruthahalli police, Bengaluru City. Issue notice to respondents 2 to 5.</b></font><br></p>', '96bbd7b686766bfd844cc358944c1914.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-08', 1, '', '', '2022-03-08 16:21:29', '2022-03-08 16:21:29'),
(1382, '5nkr9p0tcxFHRjW5J03yH1yyn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'In the absence of actual loss or damage, no compensation under Sections 73 and 74 of the Contract Act for mere breach of contract. Kerala High Court. ', '<ul><li><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Devchand Construction vs Union of India&nbsp;</b></li><li><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ARB 29 of 2018 decided 27 March 2022</b></li><li><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice P.B. Suresh Kumar and Justice C.S. Sudha</b></li><li><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the appeal memorandum it is stated that during the pendency of the proceeding before the court below, the respondent released the EMD amounting to 50,000/-. This according to the claimant has been done when the respondent realized that it was illegal for them to have withheld the same, especially when they had not suffered any loss or damage. Therefore, the only point to be decided in this appeal is whether there is any infirmity in the finding of the AT that the respondent is entitled to forfeit the security deposit of 3 lakhs towards risk liability in the absence of any loss or damage. According to the AT, the claimant had failed to execute the work and hence the contract had been terminated at his risk and cost in terms of Clause 62 of the General Conditions of Contract. An amount of 3 lakhs deposited as security deposit and an amount of 46,959/- towards advertisement charges had been deducted by the respondent from the final bill as the amount towards risk liability. The AT concluded that since the breach of the contract had been committed by the claimant/contractor, the security deposit of 3 lakhs is liable to be forfeited and therefore out of the total amount of 3,46,959/- claimed by the claimant, only an amount of 46,959/- was allowed. However, in the award itself it is stated that no loss/damage had been caused to the respondent. Therefore, it is submitted by the learned counsel for the claimant/contractor that in such circumstances the forfeiture of 3 lakhs deposited as security deposit is patently wrong, illegal and perverse. Reference was made to the decisions in Fateh Chand vs. Balkishan Dass [1963 SC 1405]; State of Kerala vs. United Shippers and Dredgers Ltd. [AIR 1982 Ker 281]; Abdulla vs. State of Kerala [2001 KHC 822] and Kailash Nath Associates vs. Delhi Development Authority [(2015)4 SCC 136] in support of this argument.Here we need to refer to Sections 73 and 74 of the Indian</b></li><li><b>Contract Act, 1872. Section 74 of reads thus -“Compensation for breach of contract where penalty stipulated for:- When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for.”</b></li><li><b>As laid down in the aforesaid decisions, in a case coming under Section 74, it is not necessary for the party claiming compensation under this Section to prove that actual damage or loss has been caused. Then the question is whether even in the absence of legal injury, compensation is liable to be paid for breach simplicitor. Under Section 74, whether it is a case of liquidated damages or penalty, what the party faced with the breach gets is only reasonable compensation, subject to the limit of the amount stipulated in the contract itself. Section 74 dispenses with proof of the extent of real or actual or factual loss or damage, but provides for grant of reasonable compensation, subject to the condition that it shall not exceed the sum stipulated as penalty in the contract. The proof of the extent of loss or damage suffered in fact, i.e., proof of the extent of actual damage or loss suffered is dispensed with in Section 74. This would not mean that there need not be any loss or damage. What is meant is only that proof of actual damage or loss is not necessary.</b></li><li><b>In the case on hand, it cannot be Section 74 that could have been invoked, because the Award does not say that any sum has been named In the contract as the amount to be paid in case of breach. In other words, the parties had never made a genuine pre-estimate of the amount to be paid in the event of any damage or loss likely to be caused by the breach or that there is any clause relating to liquidated damages in the contract.</b></li><li><b>The words \'loss or damage\' in the aforesaid sections would necessarily indicate that the party who complains of breach must have really suffered some loss or damage apart from being faced with the mere act of breach of contract. That is because every breach of every contract need not necessarily result in actual loss or damage. Compensation payable under Section 73, 74 as also under Section 75 is only for loss or damage caused by the breach and not account of the mere act of breach. If in any case the breach has not resulted in or caused any loss or damage to a party, he cannot claim compensation.</b></li><li><b>In the result, the appeal is allowed. The impugned order dated 4.12.2017 in O.P.(Arb.) No.105/2015 is set aside. The Award to the extent it disallows Claim No.1 for the release of security deposit of&nbsp; 3 lakhs towards risk liability amount, is set aside and the said claim shall stand allowed. The amount has been withheld without any justification and therefore the amount of 3 lakhs will be returned by the respondent to the claimant with interest @ 6% p.a. from the date of moving the claim before the AT till realisation and costs.</b></li></ul>', '12ffc1ed167a3ba28d67b41161b9448e.jpeg', '2bf4d2af645b4d90fecab0cf63e0aa65.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-08', 1, '', '', '2022-03-08 17:31:58', '2022-03-08 18:42:15');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1383, 'KNI3ufhLsXxV3SqxS7Fu1mdBv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SARFAESI Act. Mere mentioning and using the word \'\'fraud/fraudulent\'\' is not sufficient to satisfy the test of fraud. Supreme Court.   ', '<p class=\"p1\" style=\"margin: 0cm; font-size: 12pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;\"=\"\"><b><span style=\"font-size: 14pt;\">Electrosteel Casting Limited vs UV Asset Reconstruction Company Limited and others. <br></span></b><b style=\"font-size: 12pt; font-family: var(--bs-font-sans-serif);\"><span style=\"font-size: 14pt;\">Civil Appeal 6669 of 2021. Decided on November 26 of 2021</span></b><b><span style=\"font-size: 14pt;\"><br></span></b></p><p class=\"p2\" style=\"margin: 0cm; font-size: 12pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;=\"\" min-height:=\"\" 15px;\"=\"\"><b style=\"font-size: 12pt; font-family: var(--bs-font-sans-serif);\"><span style=\"font-size: 14pt;\">Justice M.R Shah and Justice Sanjiv Khanna.</span></b></p><p class=\"p2\" style=\"margin: 0cm; font-size: 12pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;=\"\" min-height:=\"\" 15px;\"=\"\"><b style=\"font-size: 12pt; font-family: var(--bs-font-sans-serif);\"><span style=\"font-size: 14pt;\"> </span></b><br></p><p class=\"p1\" style=\"margin: 0cm; font-size: 12pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;\"=\"\"><b><span style=\"font-size: 14pt;\">7. We have heard the learned senior counsel appearing on behalf of the respective parties at length.<o:p></o:p></span></b></p><p class=\"p2\" style=\"margin: 0cm; font-size: 12pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;=\"\" min-height:=\"\" 15px;\"=\"\"><b><span style=\"font-size: 14pt;\"> </span></b></p><p class=\"p1\" style=\"margin: 0cm; font-size: 12pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;\"=\"\"><b><span style=\"font-size: 14pt;\">7.1 It is the case on behalf of the plaintiff – appellant herein that in the plaint there are allegations of the ‘fraud’ with respect to the assignment agreement dated 30.06.2018 and it is the case on behalf of the plaintiff – appellant herein that assignment agreement is ‘fraudulent’ in as much as after the full payment as per the approved resolution plan under the </span></b><b style=\"font-size: 12pt;\"><span style=\"font-size: 14pt;\">IBC and the original corporate debtor is discharged, there shall not be any debt by the plaintiff – appellant herein as a guarantor and therefore Assignment deed is fraudulent. </span></b><b style=\"font-size: 12pt;\"><span style=\"font-size: 14pt;\">Therefore, it is the case on behalf of the plaintiff – appellant herein that the suit in which there are allegations of ‘fraud’ with respect to the assignment deed shall be maintainable and the bar under Section 34 of SARFAESI Act shall not be applicable.<span class=\"apple-converted-space\"> </span></span></b></p><p class=\"p2\" style=\"margin: 0cm; font-size: 12pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;=\"\" min-height:=\"\" 15px;\"=\"\"><b><span style=\"font-size: 14pt;\"> </span></b></p><p class=\"p1\" style=\"margin: 0cm; font-size: 12pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;\"=\"\"><b><span style=\"font-size: 14pt;\">7.2 However, it is required to be noted that except the words used ‘fraud’/’fraudulent’ there are no specific particulars pleaded with respect to the ‘fraud’. It appears that by a clever </span></b><b style=\"font-size: 12pt;\"><span style=\"font-size: 14pt;\">drafting and using the words ‘fraud’/’fraudulent’ without any specific particulars with respect to the ‘fraud’, the plaintiff – appellant herein intends to get out of the bar under Section </span></b><b style=\"font-size: 12pt;\"><span style=\"font-size: 14pt;\">34 of the SARFAESI Act and wants the suit to be maintainable. As per the settled preposition of law mere mentioning and using the word ‘fraud’/’fraudulent’ is not </span></b><b style=\"font-size: 12pt; font-family: var(--bs-font-sans-serif);\"><span style=\"font-size: 14pt;\">sufficient to satisfy the test of ‘fraud’. As per the settled preposition of law such a pleading/using the word ‘fraud’/ ‘fraudulent’ without any material particulars would not tantamount to pleading of ‘fraud’. In case of Bishundeo Narain and Anr. (Supra) in para 28, it is observed and held as under:“.... Now if there is one rule which is better </span></b><b style=\"font-size: 12pt; font-family: var(--bs-font-sans-serif);\"><span style=\"font-size: 14pt;\">established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the </span></b><b style=\"font-size: 12pt; font-family: var(--bs-font-sans-serif);\"><span style=\"font-size: 14pt;\">case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and he same applies to undue influence and coercion. See Order 6, Rule 4, Civil Procedure Code.”</span></b></p><p class=\"p2\" style=\"margin: 0cm; font-size: 12pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;=\"\" min-height:=\"\" 15px;\"=\"\"><b><span style=\"font-size: 14pt;\"> </span></b></p><p class=\"p1\" style=\"margin: 0cm; font-size: 12pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;\"=\"\"><b><span style=\"font-size: 14pt;\">7.3 Similar view has been expressed in the case of Ladli Parshad Jaiswal (Supra) and after considering the decision of the Privy Council in Bharat Dharma Syndicate vs. Harish </span></b><b style=\"font-size: 12pt;\"><span style=\"font-size: 14pt;\">Chandra (64 IA 146), it is held that a litigant who prefers allegation of fraud or other improper conduct must place on record precise and specific details of these charges. </span></b><b style=\"font-size: 12pt; font-family: var(--bs-font-sans-serif);\"><span style=\"font-size: 14pt;\">Even as per Order VI Rule 4 in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, particulars shall be stated in the </span></b><b style=\"font-size: 12pt; font-family: var(--bs-font-sans-serif);\"><span style=\"font-size: 14pt;\">pleading. Similarly in the case of K.C Sharma & Company (Supra) it is held that ‘fraud’ has to be pleaded with necessary particulars. In the case of Ram Singh and Ors. </span></b><b style=\"font-size: 12pt; font-family: var(--bs-font-sans-serif);\"><span style=\"font-size: 14pt;\">(Supra), it is observed and held by this Court that when the suit is barred by any law, the plaintiff cannot be allowed to </span></b><b style=\"font-size: 12pt; font-family: var(--bs-font-sans-serif);\"><span style=\"font-size: 14pt;\">circumvent that provision by means of clever drafting so as to avoid mention of those circumstances by which the suit is </span></b><b style=\"font-size: 12pt; font-family: var(--bs-font-sans-serif);\"><span style=\"font-size: 14pt;\">barred by law of limitation.<span class=\"apple-converted-space\"> </span></span></b></p><p class=\"p2\" style=\"margin: 0cm; font-size: 12pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;=\"\" min-height:=\"\" 15px;\"=\"\"><b><span style=\"font-size: 14pt;\"> </span></b></p><p class=\"p1\" style=\"margin: 0cm; font-size: 12pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;\"=\"\"><b><span style=\"font-size: 14pt;\">7.4 In the case of T. Arivandandam vs. T.V. Satyapal & Anr. (1977) 4 SCC 467, it is observed and held in para 5 as under:<o:p></o:p></span></b></p><p class=\"p1\" style=\"margin: 0cm; font-size: 12pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;\"=\"\"><i><b><span style=\"font-size: 14pt;\">5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of </span></b><b style=\"font-size: 12pt;\"><span style=\"font-size: 14pt;\">the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif\'s Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful — not formal — reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits.”</span></b></i></p><p class=\"p2\" style=\"margin: 0cm; font-size: 12pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;=\"\" min-height:=\"\" 15px;\"=\"\"><b><span style=\"font-size: 14pt;\"> </span></b></p><p class=\"p1\" style=\"margin: 0cm; font-size: 12pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;\"=\"\"><b><span style=\"font-size: 14pt;\">7.5 A similar view has been expressed by this court in the recent decision in the case of P. Selathal & Ors. (Supra).<o:p></o:p></span></b></p><p class=\"p2\" style=\"margin: 0cm; font-size: 12pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;=\"\" min-height:=\"\" 15px;\"=\"\"><b><span style=\"font-size: 14pt;\"> </span></b></p><p class=\"p1\" style=\"margin: 0cm; font-size: 12pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;\"=\"\"><b><span style=\"font-size: 14pt;\">8. Having considered the pleadings and averments in the suit more particularly the use of word ‘fraud’ even considering the case on behalf of the plaintiff, we find that the allegations of ‘fraud’ are made without any particulars and only with a view to get out of the bar under Section 34 of the SARFAESI Act and by such a clever drafting the plaintiff intends to bring </span></b><b style=\"font-size: 12pt;\"><span style=\"font-size: 14pt;\">the suit maintainable despite the bar under Section 34 of the SARFAESI Act, which is not permissible at all and which cannot be approved. Even otherwise it is required to be noted </span></b><b style=\"font-size: 12pt;\"><span style=\"font-size: 14pt;\">that it is the case on behalf of the plaintiff – appellant herein that in view of the approved resolution plan under IBC and thereafter the original corporate debtor being discharged </span></b><b style=\"font-size: 12pt;\"><span style=\"font-size: 14pt;\">there shall not be any debt so far as the plaintiff – appellant herein is concerned and therefore the assignment deed can be said to be ‘fraudulent’. The aforesaid cannot be accepted. </span></b><b style=\"font-size: 12pt; font-family: var(--bs-font-sans-serif);\"><span style=\"font-size: 14pt;\">By that itself the assignment deed cannot be said to be ‘fraudulent’. In any case, whether there shall be legally enforceable debt so far as the plaintiff – appellant herein is </span></b><b style=\"font-size: 12pt; font-family: var(--bs-font-sans-serif);\"><span style=\"font-size: 14pt;\">concerned even after the approved resolution plan against the corporate debtor still there shall be the liability of the plaintiff and/or the assignee can be said to be secured creditor and/or whether any amount is due and payable by the plaintiff, are all questions which are required to be dealt with and considered by the DRT in the proceedings initiated under the SARFAESI Act. It is required to be noted that as such in the present case the assignee has already initiated the proceedings under Section 13 which can be challenged by the plaintiff – appellant herein by way of application under Section 17 of the SARFAESI Act before the DRT on whatever the legally available defences which may be available to it. We </span></b><b style=\"font-size: 12pt; font-family: var(--bs-font-sans-serif);\"><span style=\"font-size: 14pt;\">are of the firm opinion that the suit filed by the plaintiff – appellant herein was absolutely not maintainable in view of the bar contained under Section 34 of the SARFAESI Act. </span></b><b style=\"font-size: 12pt; font-family: var(--bs-font-sans-serif);\"><span style=\"font-size: 14pt;\">Therefore, as such the courts below have not committed any error in rejecting the plaint/dismissing the suit in view of the bar under Section 34 of the SARFAESI Act.</span></b></p><p class=\"p2\" style=\"margin: 0cm; font-size: 12pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;=\"\" min-height:=\"\" 15px;\"=\"\"><b><span style=\"font-size: 14pt;\"> </span></b></p><p class=\"p1\" style=\"margin: 0cm; font-size: 12pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;\"=\"\"><b><span style=\"font-size: 14pt;\">9. In view of the above and for the reasons stated above, the present appeal fails and the same deserves to be dismissed and is accordingly dismissed. However, it will be open for the </span></b><b style=\"font-size: 12pt;\"><span style=\"font-size: 14pt;\">appellant herein to initiate appropriate proceedings before the DRT under Section 17 of the SARFAESI Act against the initiation of the proceedings by the assignee – respondent </span></b><b style=\"font-size: 12pt; font-family: var(--bs-font-sans-serif);\"><span style=\"font-size: 14pt;\">No.1 herein under Section 13 of the SARFAESI Act inter alia on the ground:</span></b></p><p class=\"p1\" style=\"margin: 0cm; font-size: 12pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;\"=\"\"><b><span style=\"font-size: 14pt;\">1) that the assignee cannot be said to be secured creditor so far as the appellant is concerned;<span class=\"apple-converted-space\"> </span><o:p></o:p></span></b></p><p class=\"p1\" style=\"margin: 0cm; font-size: 12pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;\"=\"\"><b><span style=\"font-size: 14pt;\">2) that there is no amount due and payable by the plaintiff – appellant herein on the ground that in view of the proceedings under IBC against the corporate debtor and the </span></b><b style=\"font-size: 12pt;\"><span style=\"font-size: 14pt;\">corporate debtor being discharged after the approved resolution plan, there shall not be any enforceable debt against the appellant. If such an application is filed within a </span></b><b style=\"font-size: 12pt;\"><span style=\"font-size: 14pt;\">period of two weeks from today the same be considered in accordance with law and on merits after complying with all other requirements which may be required while filing the </span></b><b style=\"font-size: 12pt; font-family: var(--bs-font-sans-serif);\"><span style=\"font-size: 14pt;\">application under Section 17 of the SARFAESI Act. However, it is made clear that we have not expressed anything on merits in favour of either of the parties on the aforesaid two </span></b><b style=\"font-size: 12pt; font-family: var(--bs-font-sans-serif);\"><span style=\"font-size: 14pt;\">issues.</span></b></p><p class=\"p1\" style=\"margin: 0cm; font-size: 12pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;\"=\"\"><b style=\"font-size: 12pt;\"><span style=\"font-size: 14pt;\"><br></span></b></p><p class=\"p1\" style=\"margin: 0cm; font-size: 12pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;\"=\"\"><b style=\"font-size: 12pt;\"><span style=\"font-size: 14pt;\">Present appeal is accordingly dismissed, however, in the facts and circumstances of the case there shall be no order as to costs.<span class=\"apple-converted-space\"> </span></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 14pt; font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;\"=\"\"> </span></b></p>', '6c42cbe395d48122e464388c58fae7a5.jpeg', '1756ae787b75aa952c5883ed056cd78e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2021-02-08', 1, '', '', '2022-03-08 19:24:48', '2022-03-08 19:51:06'),
(1384, 'lKmKG7E9LJzGcRBPQMIrxh1Ps', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Central Goods and Service Tax Act, 2017. Grant of refund is a policy matter. No Constitutional right to claim GST refund. Supreme Court. ', '<p><b>Union of India and others vs VKC Footsteps India Private Limited <br>Civil Appeal 4810 of 2021 decided on 13 September 2021.<br>Justice Dr. D.Y. Chandrachud and Justice M.R. Shah</b></p><p><b>70 We must be cognizant of the fact that no constitutional right is being asserted\r\nto claim a refund, as there cannot be. Refund is a matter of a statutory prescription.\r\nParliament was within its legislative authority in determining whether refunds should\r\nbe allowed of unutilised ITC tracing its origin both to input goods and input services\r\nor, as it has legislated, input goods alone. By its clear stipulation that a refund would\r\nbe admissible only where the unutilised ITC has accumulated on account of the rate\r\nof tax on inputs being higher than the rate of tax on output supplies, Parliament has\r\nconfined the refund in the manner which we have described above. While\r\nrecognising an entitlement to refund, it is open to the legislature to define the\r\ncircumstances in which a refund can be claimed. The proviso to Section 54(3) is not\r\na condition of eligibility (as the assessees’ Counsel submitted) but a restriction which\r\nmust govern the grant of refund under Section 54(3). We therefore, accept the\r\nsubmission which has been urged by Mr N Venkataraman, learned ASG</b><br></p>', '64a1a70944fe65c8b7bd30398b7aa10c.jpeg', '26edd18bfa566070f607fa94187096af.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-08', 1, '', '', '2022-03-08 20:27:17', '2022-03-08 20:48:52'),
(1385, '81ZSj19JBKH6cbxSH0yMjAE3Z', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SC /ST (Prevention of Atrocities Act),1989 is prospective in operation. No prosecution for the acts committed prior to coming into force of the Act. Karnataka High Court. ', '<p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 13px; line-height: normal; font-family: \" helvetica=\"\" neue\";\"=\"\"><b>Dr. Shantha Raj T.R and others vs The State by Sub-Inspector of Police and others.&nbsp;</b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 13px; line-height: normal; font-family: \" helvetica=\"\" neue\";\"=\"\"><b style=\"font-family: var(--bs-font-sans-serif);\">Criminal Petition 7980 of 2014. Decided on 23 February 2022</b><br></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 13px; line-height: normal; font-family: \" helvetica=\"\" neue\";\"=\"\"><b style=\"font-family: var(--bs-font-sans-serif);\">Justice Krishna S.Dixit</b><br></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 13px; line-height: normal; font-family: \" helvetica=\"\" neue\";\"=\"\"><b><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 13px; line-height: normal; font-family: \" helvetica=\"\" neue\";\"=\"\"><b style=\"font-family: var(--bs-font-sans-serif);\">Petitioners are knocking at the doors of this Court invoking inherent jurisdiction u/s 482 of Cr.P.C., 1973 for the quashment of criminal proceedings in PCR No.63/2013 in which the learned Judge of the Court below in exercise of power u/s 156 (3) of the Code has referred the matter for investigation.</b><br></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 13px; line-height: normal; font-family: \" helvetica=\"\" neue\";=\"\" min-height:=\"\" 15px;\"=\"\"><br></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 13px; line-height: normal; font-family: \" helvetica=\"\" neue\";=\"\" min-height:=\"\" 15px;\"=\"\"><b style=\"font-family: var(--bs-font-sans-serif);\">2. After service of notice, respondent No.1 has entered appearance through the learned HCGP; private&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif);\">Respondent No.2 &amp; 3 despite service of process have remained unrepresented in their wisdom; learned HCGP&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif);\">makes submission in justification of the impugned order.</b><br></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 13px; line-height: normal; font-family: \" helvetica=\"\" neue\";=\"\" min-height:=\"\" 15px;\"=\"\"><b><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 13px; line-height: normal; font-family: \" helvetica=\"\" neue\";\"=\"\"><b>3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant relief inasmuch as, the offences allegedly been committed ago i.e., on 18.10.1975; complaint was filed with inordinate delay with no plausible explanation for the same. ordinarily, the stale claims would not be entertained;</b></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 13px; line-height: normal; font-family: \" helvetica=\"\" neue\";=\"\" min-height:=\"\" 15px;\"=\"\"><b><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 13px; line-height: normal; font-family: \" helvetica=\"\" neue\";\"=\"\"><b>4. The above apart, the alleged acts do not constitute an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which is prospective in operation, there being constitutional bar to the retrospectivity enacted in Article 20(2); it has been a settled principle of criminal jurisprudence that when the act complained of is not an offence when committed; a free citizen cannot be brought to book merely because such act is criminalized in a subsequent legislation.</b></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 13px; line-height: normal; font-family: \" helvetica=\"\" neue\";=\"\" min-height:=\"\" 15px;\"=\"\"><b><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 13px; line-height: normal; font-family: \" helvetica=\"\" neue\";\"=\"\"><b>5. The learned counsel for the petitioners is more than justified in contending that criminal law cannot be set in motion casually as held by the Apex Court in PEPSI FOODS LTD. Vs. SPECIAL JUDICIAL MAGISTRATE 1998 SCC (CRI) 1400; the learned trial Court Judge before referring the matter u/s 156 for further investigation ought to have been adverted to all these aspects and non-advertence has rendered the proceedings vulnerable for challenge.<span class=\"Apple-converted-space\">&nbsp;</span></b></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 13px; line-height: normal; font-family: \" helvetica=\"\" neue\";=\"\" min-height:=\"\" 15px;\"=\"\"><b><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 13px; line-height: normal; font-family: \" helvetica=\"\" neue\";\"=\"\"><b>In the above circumstances, this petition succeeds and as a consequence, the FIR No.46/2014 registered by&nbsp;</b><b>respondent No.1-Police is also set at naught and the proceedings in PCR No.63/2013 are also set aside.</b></p>', '6c1ebb68835a243bbe37a4bdcbcf6648.jpeg', 'fd8f57ee4bc93d10e4f7825beb1ef079.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-08', 1, '', '', '2022-03-08 21:25:28', '2022-03-08 23:04:50'),
(1386, 'GU0XH23BRKUi8EjwWu3gxOzdG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Recognition granted to Schools under the Karnataka Education Act, 1983 is for a minimum period of ten years. Government cannot insist on annual renewal of recognition. Karnataka High Court.  ', '<p><b>Rupsa Karnataka and others Vs State of Karnataka and others</b></p><p><b>Writ Petition 2664 of 2022. Decided on 8 March 2022</b></p><p><b>Justice P Krishna Bhat.&nbsp;</b></p><p><b>First petitioner is stated to be the Registered Unaided Private School Management Association and petitioner Nos.2 to 4 are stated to be registered Trusts which are running educational institutions. They have filed this writ petition seeking following prayers:</b></p><p><b>(i) Declaring that under the Karnataka Education Act, 1983 or the Karnataka Educational Institutions (Registration) Rules, 1999, the respondents have no power to insist on annual/yearly renewal of recognition granted under Section 36 of the Karnataka Education Act;</b></p><p><b>(ii) Directing the respondents to strictly abide by the provisions of Karnataka Education Act, 1983 and the Karnataka Educational Institutions (Registration) Rules, 1999 in the matter or renewal of recognition once in ten years;</b></p><p><b>(iii) For such other order or orders as this Hon’ble Court deems fit to pass in the circumstances of the case in the interest of justice and equity.</b></p><p><b>2. Sri.S.Basavaraju, learned Senior Counsel for petitioners submits that once first recognition issued under Section 36 of the Karnataka Education Act, 1983 (for short ‘the Act’) expires, the educational institutions running private unaided and aided schools are required to renew such recognitions and for the said purpose they are required to file applications. He further submits that under sub-rule (3) of Rule 4 of The Karnataka Educational Institutions (Registration) Rules, 1999 (for short ‘Rules 1999’), the recognition once granted under Section 36 of the Act shall be in Form II and shall be for a minimum period of ten years. He submits that even the first recognition which is renewed subsequently will also be for a period of ten years. It is his submission that on account of Circular dated 30.11.2021/02.12.2021 bearing&nbsp; No.¹7(3) 01:2021-22&nbsp; (Annexure-P&nbsp; to&nbsp; the&nbsp; writ&nbsp; petition),&nbsp; respondent&nbsp; No.1 is insisting upon the petitioners and managements running schools to secure recognition for the schools every year. He submits that in that view of the matter, petitioners are seeking a declaration that respondents have no power to insist on annual/yearly renewal recognition granted under Section 36 of the Act and, similarly, they are put to the necessity of seeking a direction to respondents to strictly adhere to the provisions of the Act and Rules 1999. He therefore submits that writ petition is entitled to be allowed and direction as sought for is required to be issued to the respondents.</b></p><p><b>3. Learned AGA – Sri.B.V.Krishna appearing for respondent Nos.1 and 2 has taken me through the detailed statement of objections filed by him and further contends that in view of the flagrant violation of various terms and conditions mentioned under Section 36 of the Act by the petitioners and the other managements running similar schools, respondents are facing lot of problems and therefore, Circulars are being issued from time to time drawing the attention of private aided/unaided managements running educational institutions in the State calling upon them to adhere to the requirements under the Act as well as Rules 1999. He further submits that contention of petitioners is that respondents are insisting on seeking renewal of recognition granted on yearly basis is completely misconceived and in this behalf he specifically draws my attention to page No.4 of statement of objections filed by him. He also submits that State is anxious about the interests of students and therefore the competent authorities of respondents are making periodical inspections of educational institutions and on several occasions deficiencies were found and therefore, several Circulars were also issued and it is only on account of petitioners misunderstanding the purport of the same, writ petition has been filed seeking untenable directions. He also emphatically submits that there is no question of State itself acting contrary to the provisions of the Act or Rules 1999 and therefore, writ petition is liable to be dismissed. He submitted that respondents are also bound to implement the directions issued by the Hon’ble Supreme Court in the case of AVINASH MEHROTRA v. UNION OF INDIA AND OTHERS produced at Annexure-N to the writ petition on pain of facing contempt proceedings.</b></p><p><b>4. Learned counsel for respondent No.3 - Karnataka Secondary Education Examination Board also submits that on account of infraction of provisions of the Act and Rules 1999 framed thereunder by the educational institutions, respondent No.3 is facing problems of holding examinations to SSLC students from unrecognized institutions. In order to avoid unsavory situations, it has issued Circular dated 17.01.2022 (Annexure-S to the writ petition). It is therefore contended by the learned counsel for respondent No.3 that there is no merit in the writ petition and it is liable to be dismissed.</b></p><p><b>7. A conjoint reading of above provisions clearly shows that recognition granted under Section 36 of the Act by the respondents is for a minimum period of ten years. Respondent Nos.1 and 2 in its statement of objections at page 4 have stated as follows: <br></b></p><p><b><i>“Section 36 clearly mandates that any Education Institution seeking recognition will have to strictly comply with the above provision and in parallel the provisions of the Karnataka Education Institutions (Recognition of Primary &amp; Secondary Schools)(Amendments) Rules, 2018. Rule 4(3)(iii) prescribes that the recognition once granted is automatically valid for a minimum period of 10 years. Therefore, there is no question of insisting on any annual renewal within period of 10 years once granted by the Government. However, the operation of that period is again strictly subject to the application of Section 36 and Rules mentioned hereinabove.”</i></b></p><p><b>8. In that view of the matter, there is no scope for any doubt about the fact that recognition granted by respondent Nos.1 and 2 under Section 36 of the Act to the educational institutions is for a minimum period of ten years. Learned AGA has made it absolutely clear that period of ten years shall also hold good for subsequent renewal of recognition granted after first recognition. In that view of the matter, first prayer sought for by the petitioners does not survive for consideration and there is no need to issue declaration as sought for by the petitioners.</b></p><p><b>10. Read as a whole, the aforesaid Circular clearly suggests that whenever the first recognition granted or the recognition renewed was going to expire, the management of such institutions were required to compulsorily get such recognitions or renewal of recognitions on or before 31st&nbsp; August of said Academic Year. A conjoint reading of sub-rule (3) of Rule 4 of Rules 1999 and Para II (Recognition Renewal- RR) makes it absolutely clear. The respondents have also made no bones about it and in the statement of objections filed by respondent Nos.1 and 2, it is explicitly stated so. It is necessary to take note of the additional responsibility cast on the respondents in light of the directions issued by Hon’ble Supreme Court in AVINASH MEHROTRA’s case (supra) to ensure compliance with fire safety norms, National Building Code of India, etc.</b></p><p><br></p>', '09cf96591d1e085e65be20f1d187f8f1.jpeg', '058e3684ad132a7a7753e2373eb18447.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-08', 1, '', '', '2022-03-08 23:44:40', '2022-03-08 12:32:41'),
(1397, 'I4izRVwqNZtxSkY7ciO8gFcIw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contempt of Court proceedings can be initiated even though the order or decree of which contempt is alleged is executable under law even without having recourse to contempt proceedings. Supreme Court. ', '<p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 14px; line-height: normal; font-family: Helvetica; color: rgb(0, 0, 10);\"><b>Urban Infrastructure Real Estate Fund Vs Dharmesh S. Jain and Anr.</b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 14px; line-height: normal; font-family: Helvetica; color: rgb(0, 0, 10);\"><b>Contempt Petition 940 of 2021 decided on 10 March 2022. </b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 14px; line-height: normal; font-family: Helvetica; color: rgb(0, 0, 10);\"><b>Justice M.R. Shah and Justice B.V. Nagarathna . </b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 14px; line-height: normal; font-family: Helvetica; color: rgb(0, 0, 10);\"><b><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 14px; line-height: normal; font-family: Helvetica; color: rgb(0, 0, 10);\"><b>13.1 In order to buttress his contention that non-compliance with\r\nthe condition of deposit would only render the Arbitrator’s Award\r\nenforceable and contempt proceedings ought not to have been\r\ninitiated for non-compliance with such condition which was not\r\nmandatory in nature, learned senior counsel appearing on behalf of\r\nthe respondent-contemnor cited the following case law: <br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 14px; line-height: normal; font-family: Helvetica; color: rgb(0, 0, 10);\"><b>i) Sudhir Vasudeva vs. M. George Ravishekaran – [(2014)\r\n3 SCC 373] wherein, this Court observed that a Court\r\nexercising jurisdiction under the Contempt of Courts Act,\r\n1971 must not travel beyond the four corners of the order\r\nin relation to which contempt has been alleged. That the\r\nCourt hearing a contempt petition ought to restrict the\r\nscope of its inquiry to such directions which are explicit in\r\nthe judgment or order of which contempt has been alleged.\r\nWe are of the view that this judgment would not, in\r\nany way, come to the aid of the respondent-contemnors because, in whatever manner the orders of which contempt\r\nis alleged, are viewed, the orders state in unequivocal\r\nterms that the contemnor is required to deposit the amount,\r\nwithin such period as specified in the respective orders.\r\nThe scope of contempt, however narrow, would enable this\r\nCourt to invoke jurisdiction under the Act to redress a\r\nsituation such as the instant one, wherein the orders of\r\nwhich contempt has alleged, expressly and clearly record\r\nthat the contemnor was required to deposit the amounts\r\nspecified therein. This direction under the orders, could not\r\nbe interpret in any other manner.<br>ii) R.N. Dey & Ors. vs. Bhagyabati Pramanik & Ors. –\r\n[(2000) 4 SCC 400] wherein this Court held that the\r\nweapon of initiating contempt proceedings could not be\r\nused for execution of a decree or implementation of an\r\norder. That is, a Court should not invoke contempt\r\njurisdiction, where alternate remedies are available to\r\nsecure the terms of an order.</b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 14px; line-height: normal; font-family: Helvetica; color: rgb(0, 0, 10);\"><b>We are mindful of the fact that contempt proceedings should\r\nnot be of the nature of ‘execution proceedings in disguise.’\r\nHowever, we hold that the case law cited supra would not come to\r\nthe aid of the contemnor herein as the facts of the said case were  <br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 14px; line-height: normal; font-family: Helvetica;\"><b style=\"\"><font color=\"#00000a\">significantly different from the case at hand. In the said case, no\r\nstay was operating on the decree of which contempt was alleged.\r\nTherefore, the decree-holder therein could very well initiate\r\nexecution proceedings. However, in the instant case, the High\r\nCourt, by order dated 08th August, 2019 stayed the Award subject to\r\nthe deposit of an amount. The time period of such deposit has been\r\nextended by this Court on two occasions while continuing the order\r\nof stay by implication. Having taken the advantage of the extended\r\ntime period, the respondent-contemnor cannot, at this juncture, take\r\nthe plea that non-compliance with the condition of deposit would\r\nonly render the Arbitrator’s Award enforceable and that such failure\r\nto comply would have no consequences under the Contempt of\r\nCourts Act, 1971.\r\n</font><br><span style=\"background-color: rgb(255, 255, 0);\">13.2 Further, it is trite law that the jurisdiction of a Court under the\r\nAct, would not cease, merely because the order or decree of which\r\ncontempt is alleged, is executable under law, even without having\r\nrecourse to contempt proceedings.\r\n</span><br><font color=\"#00000a\">13.3 Contempt jurisdiction could be invoked in every case where\r\nthe conduct of a contemnor is such as would interfere with the due\r\ncourse of justice; vide Rama Narang vs. Ramesh Narang –\r\n[(2006) 11 SCC 114. Contempt is a matter which is between the\r\nCourt passing the order of which contempt is alleged and the contemnor; questions as to executability of such order is a question\r\nwhich concerns the parties inter-se. The power of the Court to\r\ninvoke contempt jurisdiction, is not, in any way, altered by the rights\r\nof the parties inter-se vide Bank of Baroda vs. Sadruddin Hasan\r\nDaya – [(2004) 1 SCC 360].\r\n</font><br><font color=\"#00000a\">14. Now, so far as the case on behalf of the respondents that\r\nthere is no wilful disobedience and because of the financial\r\nconstraint, the respondents are not in a position to deposit the\r\namount as ordered by the High Court vide order dated 08.08.2019\r\nand the order passed by this Court is concerned, the same is\r\nnothing but an afterthought. At no point of time earlier, such a plea\r\nwas taken. In the facts and circumstances of the case, such a\r\nstand now lacks bonafides. All efforts are being made by the\r\nrespondents to get out of the order passed by the High Court dated\r\n08.08.2019 and the order passed by this Court dated 28.10.2021 in\r\nMiscellaneous Application No. 1668 of 2021 in Special Leave\r\nPetition (C) No. 14724 of 2021. If the bonafides of the respondents\r\nwere clear and they genuinely wanted to abide by the order passed\r\nby the High court and this Court, but could not deposit because of\r\nthe financial difficulties, in that case, they ought to have\r\nstraightaway pleaded their financial difficulties and ought not to have taken the stand, which was taken in Miscellaneous Application\r\nNo. 61 of 2022 and even which are once again taken now.\r\nAs observed hereinabove, even the respondents disclosed\r\ntheir assets after a period of approximately two years from the date\r\nof the passing of the order passed by the High Court in Chamber\r\nSummons. Therefore, we are of the opinion that the stand taken by\r\nthe respondents now that they are not in a position to deposit the\r\namount and/or comply with the order passed by the High Court and\r\nthis Court because of the financial difficulties and therefore there is\r\nno wilful disobedience by the respondents in not complying with the\r\norder passed by the High Court dated 08.08.2019 and the order\r\npassed by this Court dated 28.10.2021 in Miscellaneous Application\r\nNo. 1668 of 2021 in Special Leave Petition (C) No. 14724 of 2021\r\nlacks bonafides and the same is not at all acceptable by us.\r\n</font><br><font color=\"#00000a\">15. When a party which is required to comply with the terms or\r\ndirections in an order has not done so within such time as stipulated\r\nin the order, two options are available to the party which was\r\nrequired to comply with such order: (a) give an explanation to the\r\nCourt as to the circumstances due to which the party could not\r\ncomply with the order of the Court; (b) seek for further time to\r\ncomply with the order of the Court. If a delay has occurred in\r\ncomplying with the terms of an order and the party which was to comply with the order has not resorted to either of the two\r\naforestated options, then, the party responsible for delay in\r\ncompliance, may be held to have committed contempt; vide State\r\nof Bihar vs. Subhash Singh - [(1997) 4 SCC 430]\r\n</font><br><font color=\"#00000a\">15.1 Further, the decision of this Court in Maruti Udyog vs.\r\nMahinder C. Mehta – AIR 2008 SC 309 suggests that irrespective\r\nof whether or not a decree is executable, the question to be\r\nconsidered by this Court in determining whether a case for\r\ncontempt has been made out was, whether, the conduct of the\r\ncontemnor was such as would make a fit case for awarding\r\npunishment for contempt of Court.\r\n</font><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 14px; line-height: normal; font-family: Helvetica; color: rgb(0, 0, 10);\"><b><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 14px; line-height: normal; font-family: Helvetica; color: rgb(0, 0, 10);\"><br></p>', '5c7022573583c31a0231752df9666f01.JPG', 'a6cf2e8b9669b19e18d0af56be8bdfc3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-10', 1, '', '', '2022-03-11 03:27:12', '2022-03-11 04:40:38');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1390, 'vxsqepFIwum51fwGWMPjGzxsG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Defendant whose written statement taken as not filed and on dismissal of his application under Section 8(1) of the Arbitration and Conciliation Act can not seek permission to file written statement. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ICICI Lombard General Insurance Co. Ltd Vs Suprajit Engineering Limited and others.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Writ Petition 9800 of 2017, decided on 24 February 2022.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Justice Suraj Govindaraj.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. The petitioner is before this Court seeking for the following reliefs:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>a. Issue a writ of Certiorari, quashing the order dated 28.1.2017 passed by the hon’ble LXVI Addl. City Civil Judge holding C/C of XXXVIII Addl. City Civil Judge Bangalore on I.A.No.2 in O.S.No.2501/2011 [ANNEXURE-F]</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>b. Pass order/s or Issue directions to the Hon’ble LXVI Addl. City Civil Judge holding C/C of XXXVIII Addl. City Civil Judge Bangalore to accept the written statement which is already in the records in O.S.No.2501/2011: AND</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>c. To pass any order/s as this Hon’ble Court deems fit to grant in the circumstances of the case, in the interest of justice and equity.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. O.S. No.2501/2011 was filed for a direction to the defendant to make payment of US $ 3,81,489/- @ Rs.45 per USD or equivalent to INR 1,71,67,005/-. In the said suit, the petitioner herein was a defendant, entered appearance on 22.06.2011. In the said suit, the written statement of the defendant was taken as not filed and the application filed under Section 148 of CPC for extension of time to file written statement was rejected vide order dated 28.01.2017. It is aggrieved by the same, the petitioner is before this Court.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. The short question which would arise for consideration of this Court is - Whether the defendant whose Written statement was taken as not filed, can thereafter file an application under Section 8(1) of the A&amp;C Act and on dismissal of the said application contend that the defendant should be given an opportunity to file its written statement?&nbsp;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. Section 8 of the A&amp;C Act requires that an application under the said provision be made before the first statement is filed i.e. to say before the written statement was filed. Section 8 debars the defendant from filing an application under Section 8 after a written statement is filed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. In the present situation, the petitioner entered appearance on 22.6.2011 having been served with summons much earlier and the written statement was taken as not filed on 11.08.2011, it is only thereafter on 8.11.2011 that Section 8 application came to be filed, i.e. to say that after the written statement was taken to be not filed on 11.08.2011, the application under Section 8 came to be filed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. In that view of the matter, I am unable to accept the submission of Sri.Manjunath, learned counsel for the petitioner that the petitioner did not file written statement on account of the filing of Section 8 application. Once the written statement is taken as not filed, the same would be an embargo to file an application under Section 8 inasmuch if a proper and effective meaning is given to Section 8 it is not only that Section 8 application has to be filed before the filing of the written statement but the said application ought to be filed before the Court were to take the written statement as not filed. The effect of Court having taken the written statement as not filed itself would be a bar for filing an application under Section 8 of the A&amp;C Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10. In view thereof, subsequent filing of the application under Section 8 of A&amp;C Act would not, in my considered opinion, extend the time for filing of a written statement as that provided under Order 8 of CPC, more so the said time period has already expired and written statement taken as not filed way back on 11.8.2011.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. The filing an application under Section 8 of the A&amp;C Act is also not a licence or an excuse for the defendant not to file a written statement and delay the proceeding before the trial Court. Be that as it may, this Court is not required to get into that issue since in the present case, as on 11.08.2011 itself, the written statement was taken as not filed, and the application under Section 8 came to be filed much later</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12. At this stage, Sri. Manjunath, learned counsel for the petitioner, would submit that non-filing of the written statement would disentitle the petitioner from crossexamining the respondents’ witnesses in the trial Court.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13. It is trite law that mere non-filing of written statement would not disentitle the party to cross-examine the other party. The petitioner as defendant, irrespective of non-filing of the written statement, would be entitled to cross-examine the plaintiff’s witnesses in the trial Court.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14. With the above observation, the writ petition as filed is dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15. The amount in deposit is directed to be transferred to the trial Court. In the event of the amount being in a Fixed deposit, the Fixed deposit receipt is directed to be endorsed in the name of the trial Court.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16. All pending applications stand dismissed and all interim orders stand discharged.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8a7685a04c7e837d474a8a1524db8f39.jpeg', '7658f8f022cc2944e7441d25067437f2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-10', 1, '', '', '2022-03-10 18:51:31', '2022-03-10 12:45:37'),
(1405, 'gLR76EdgvbPVjB1ErdA5Nk41K', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Penal Code. Provisions of Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors and acts of beastiality. Telangana High Court. ', '<p><b>THE HON\'BLE Dr. JUSTICE SHAMEEM AKTHER \r\nCRIMINAL PETITION No.1582 of 2021<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Mr. Apurva M Gokhale advocate for the petitioners.&nbsp;</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ORDER: This Criminal Petition, under Section 482 of the Code of \r\nCriminal Procedure, 1973 (for short, ‘Cr.P.C.’) is filed by the \r\npetitioner/complainant, seeking to quash the order, dated \r\n11.02.2021, passed in C.C.No.751 of 2014 by the VIII Additional \r\nMetropolitan Magistrate, Kukatpally, whereby, the Court below \r\ndeleted the charge against the respondent No.2/A.1 for the offence \r\nunder Section 377 of IPC, while maintaining charge for the offence \r\nunder Section 498A of IPC against him.</span></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2. Heard both sides. Perused the record.<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. It is evident from the record that the petitioner/complainant \r\nlodged a private complaint against the respondent Nos.2 to 4/A.1 to \r\nA.3 before the Court below, which was referred to the police \r\nconcerned for investigation and filing Final Report. The police \r\nconcerned, after investigation, filed charge-sheet before the Court \r\nbelow and the Court below as pleased to take cognizance against \r\nrespondent No.2/A.1 initially for the offences under Sections 498A \r\nand 377 of IPC and against the respondent Nos.3 and 4/A.2 and A.3 \r\nfor the offence punishable under Section 498A of IPC. However, on \r\n11.02.2021, the Court below was pleased to pass the following \r\ndocket order: \r\n“Accused called absent, petition filed and allowed. Earlier the case \r\nwas taken on file for the offences u/s 498A and 377 of IPC against A1 \r\nand 498A IPC against A2 and A3, however, Hon’ble Apex Court struck \r\ndown/court ruled out the sec.377 IPC, unanimously in Navtej Singh \r\nJohar Vs. Union of India. Thus, now the sec. 377 is considered as \r\nunconditional, thus, at present, this Court taken consideration of only \r\n2 \r\nthe offences, i.e., 498A of IPC against A1 to A3. For further chief of \r\nPW-1, call on 23.02.2021.”<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. Learned counsel for the petitioner/complainant would \r\ncontend that when the matter was coming up for the evidence \r\nof petitioner/complainant, without there being any occasion and \r\nwithout there being any application filed by the respondent \r\nNos.2 to 4/A.1 to A.3, the Court below passed the aforesaid \r\ndocket order, dated 11.02.2021, which is erroneous. The \r\nHon’ble Apex Court, in Navtej Singh Johar Vs. Union of \r\nIndia1, while striking down Section 377 of IPC, clarified that \r\n“the provisions of Section 377 of IPC will continue to govern \r\nnon-consensual sexual acts against adults, all acts of carnal \r\nintercourse against minors and acts of beastiality.” In the \r\nsubject complaint and also in the charge-sheet, there are \r\nspecific allegations against the respondent No.2/A.1 constituting \r\noffences under Sections 498A and 377 of IPC and ultimately \r\nprayed to allow the Criminal Petition as prayed for.<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5. It is evident from the charge-sheet filed in this case and \r\nthe statements of the complainant recorded under Section 161 \r\nof Cr.P.C. that the respondent No.2/A.1 used to have unnatural \r\nsex with the petitioner/complainant, without her consent. \r\nFurther, as rightly contended by the learned counsel for the \r\npetitioner/complainant, the Hon’ble Apex Court, in Navtej \r\nSingh Johar’s case supra, while answering a reference, \r\ncategorically clarified that the provisions of Section 377 of IPC \r\nwill continue to govern non-consensual sexual acts against \r\nadults, all acts of carnal intercourse against minors and acts of \r\n \r\n1\r\n (2018) 10 Supreme Court Cases 1 \r\n3 \r\nbeastiality. Under these circumstances, the Court below erred \r\nin passing the impugned docket order, dated 11.02.2021, \r\ndeleting the charge for the offence under Section 377 of IPC \r\nagainst the respondent No.2/A.1. The submissions of the \r\nlearned counsel for the petitioner/complainant merit \r\nconsideration.<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. Under these circumstances, the impugned docket order, \r\ndated 11.02.2021, passed in C.C.No.751 of 2014 by the VIII \r\nAdditional Metropolitan Magistrate, Kukatpally, is partly set \r\naside, so far it relates to deleting the charge under Section 377 \r\nof IPC agaisnt the respondent No.2/A1. Charge for the offence \r\nunder Section 377 of IPC against the respondent No.2/A.1 in \r\nrelation to the subject C.C. is restored. It is open to the Court \r\nbelow to determine the said charge after conclusion of trial.<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. The Criminal Petition is disposed of accordingly. \r\n Miscellaneous Petitions, if any, pending in this Criminal Petition \r\nshall stand closed.</span></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Dr. SHAMEEM AKTHER, J \r\n11th November, 2021 \r\nBvv</b></span></p>', '3d4a61b9f8e30b1c43e6d8caafb133d3.JPG', '04a9e2518675b0db247a1bb38cba6972.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-11', 1, '', '', '2022-03-12 04:20:06', '2022-03-12 04:30:46'),
(1395, '0r2fK3wbvi77RxcpPojxF1lCG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Power under Section 319 to proceed against other persons appearing to be guilty of offence to be exercised sparingly and in exceptionally prima facie cases. Supreme Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Sagar Vs State of UP and Another</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Criminal Appeal 397 of 2022. Decided on 10 March 2022.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Justice Ajay Rastogi and Justice Abhay S. Oka.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The instant appeal has been filed by the appellant assailing the correctness of the order dated 28th July, 2021 passed by the High Court of Judicature at Allahabad setting aside order dated 30th January, 2018 passed by the Additional Sessions Judge, Muzaffarnagar, whereby the trial Court had rejected the application filed by the complainant under Section 319 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) for summoning the appellant as accused and to face trial in Case Crime No.164 of 2014 under Section 302 IPC registered at PS Fugana, District Muzaffarnagar, Uttar Pradesh.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. The scope and ambit of Section 319 of the Code has been wellsettled by the Constitution Bench of this Court in Hardeep Singh v. State of Punjab and others1 and paras 105 and 106 which are&nbsp;</b></font><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">relevant for the purpose are reproduced hereunder:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><font face=\"Calibri, sans-serif\"><b>“105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in&nbsp;</b></font><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">those cases where the circumstances of the case so warrant. It is</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><font face=\"Calibri, sans-serif\"><b>not to be exercised because the Magistrate or the Sessions Judge&nbsp;</b></font><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">is of the opinion that some other person may also be guilty of&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">committing that offence. Only where strong and cogent evidence&nbsp;</b><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">occurs against a person from the evidence led before the court that&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">such power should be exercised and not in a casual and cavalier&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">manner.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><font face=\"Calibri, sans-serif\"><b>106. Thus, we hold that though only a prima facie case is to be&nbsp;</b></font><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">established from the evidence led before the court, not necessarily&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">tested on the anvil of crossexamination,&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">it requires much stronger&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">evidence than mere probability of his complicity. The test that has&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">to be applied is one which is more than prima facie case as&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">exercised at the time of framing of charge, but short of satisfaction&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">to an extent that the evidence, if goes unrebutted, would lead to&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">conviction. In the absence of such satisfaction, the court should&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">refrain from exercising power under Section 319 CrPC. In Section&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">319 CrPC the purpose of providing if “it appears from the evidence&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">that any person not being the accused has committed any offence”&nbsp;</b><font face=\"Calibri, sans-serif\" style=\"font-size: 1rem;\"><b>is clear from the words “for which such person could be tried&nbsp;</b></font></i><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><i>together with the accused”.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">The words used are not “for which such&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">person could be convicted”. There is, therefore, no scope for the&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">court acting under Section 319 CrPC to form any opinion as to the&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">guilt of the accused.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. The Constitution Bench has given a caution that power under&nbsp;</b></font><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">Section 319 of the Code is a discretionary and extraordinary power&nbsp;</b><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">which should be exercised sparingly and only in those cases where&nbsp;</b><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">the circumstances of the case so warrant and the crucial test as&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">noticed above has to be applied is one which is more than prima&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">facie case as exercised at the time of framing of charge, but short of&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">satisfaction to an extent that the evidence, if goes unrebutted,&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">would lead to conviction. The learned Single Judge of the High&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">Court has even failed to consider the basic principles laid down by&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">this Court while invoking Section 319 of the Code, which has been considered by the learned trial Judge under its order dated 30th&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">January, 2018.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10. Consequently, in our opinion, the appeal deserves to succeed&nbsp;</b></font><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">and the same is accordingly allowed. The order passed by the High&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">Court dated 28th July, 2021 is hereby quashed and set aside.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p>', 'd8a112f02d784619c79fc2f680b4bb8b.jpeg', '5f51534c72e4261c9f14ab7ad99d979a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-10', 1, '', '', '2022-03-11 03:13:35', '2022-03-10 16:14:44'),
(2731, 'IbeNgWc5n37N1mEGACvxJVVLa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka SC/ST (PTCL) Act. Application for restoration filed 25 years after the sale cannot be entertained by the authorities since it is beyond reasonable time. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K.T. Manjunath and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Appeal 485 of 2021 decided on 22 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Alok Aradhe and Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Brief facts of the case that would be relevant for the purpose of disposal of this appeal are: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The land bearing Sy.No.119, new No.304 measuring 1 acre 18 guntas situated at Madanahalli Village, Gowribidanur, Kolar District (for short “the land in question”) was granted in favour of one M.Rangaswamy on 24.04.1964 and the said Rangaswamy sold the granted land in favour of one K.V.Krishnappa on 17.09.1968. Subsequently, said K.V.Krishnappa got the land converted from agricultural purpose to non-agricultural purpose on 26.06.1991 and after his death, the wife and children of K.V.Krishnappa under a registered sale deed dated 12.06.1996 sold the land in question in favour of the petitioners. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>When the matter stood thus, the son of the original grantee R.Dayananda filed an application under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short “PTCL Act”) in the year 2004 for restoration of the land in question on the ground that the transaction was hit by Section 4 of the PTCL Act and accordingly sought restoration of the land in question. The Assistant Commissioner vide his order dated 04.07.2005 allowed the said application and the same was confirmed by the Deputy Commissioner in the appeal filed by the petitioners vide his order dated 07.05.2014. Being aggrieved by the same, the petitioners, who are the purchasers of the land in question from K.V.Krishnappa, filed W.P.No.6515/2019 before this court and the learned Single Judge of this court vide the order impugned herein has dismissed the same and being aggrieved by the same, the petitioners are in appeal.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">8.<span style=\"white-space: pre;\">	</span>The undisputed facts of the case are that the land in question was granted to M.Rangaswamy on 24.04.1964 and during his life time, he had sold the same in favour of K.V.Krishnappa on 17.09.1968. Subsequently, K.V.Krishnappa got the land in question converted from agricultural purpose to non-agricultural purpose on 26.06.1991 and after his death, his wife and children sold the land in favour of the petitioners herein. The application for restoration has been filed by the son of original grantee in the year 2004, which was almost after 25 years from the date the PTCL Act came into force. The PTCL Act has come into force with effect from 01.01.1979.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>The Hon’ble Supreme Court in the case of Nekkanti Rama Lakshmi (supra) and in the case of Vivek M.Hinduja (supra), has held that any act and action for restoration of the land as provided under Section 5 of the PTCL Act is required to be taken within a reasonable period and if the application filed under Section 5 of the PTCL Act is beyond reasonable period, the competent authorities should not entertain the same. In the case of Ningappa –vs- Deputy Commissioner and Others reported in (2020) 14 SCC 236, the Hon’ble Supreme Court has held that an application filed under Section 5 of the PTCL Act with a delay of 9 years was beyond the reasonable period. In the case on hand, admittedly, the delay is more than 25 years.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>In the background of the pronouncements of the Hon’ble Supreme Court, which are referred to hereinabove, the application filed by the legal representative of the original grantee under Section 5 of the PTCL Act, was definitely beyond a reasonable period and the authorities concerned should not have entertained the said application filed after a delay of 25 years. The learned Single Judge has failed to appreciate this aspect of the matter and erred in dismissing the writ petition filed by the petitioners on the ground of delay and laches. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>Under the circumstances, we are of the considered view that the impugned order passed by the learned Single Judge of this Court is unsustainable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Accordingly, the following order: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The writ appeal is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c729fb1740cec25e490609eb1cdf0492.jpeg', '87ffea31839ba4f4b701aa9716094ba5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-27', 1, '', '', '2023-02-24 14:40:13', '2023-02-27 03:23:01'),
(1396, 'SOJEQcAmKejIiAOVhOCMldDvX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'C.P.C. Order 41 Rule 27. Admissibility of additional evidence also depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment. Supreme Court. ', '<p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b>Sanjay Kumar Singh Vs The State of Jharkhand</b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b><br></b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b>Civil Appeal 1760 of 2022. Decided on 10 March 2022</b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b><br></b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b>Justice M.R. Shah and Justice B.V. Nagarathna&nbsp;</b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><br></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order dated 28.03.2019 passed by the High Court of Jharkhand at\r\nRanchi in First Appeal No. 44/2007, by which the High Court has\r\ndismissed the said First Appeal preferred by the appellant herein –\r\noriginal claimant, the original claimant has preferred the present appeal.&nbsp;<br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><b><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><b>3.1 At the outset, it is required to be noted that before the Reference\r\nCourt as well as before the High Court, the only evidence produced on\r\nrecord was the sale deed dated 29.12.1987 which was rejected from\r\nbeing considered. Hence, as such, there was no other\r\nevidence/material on record to arrive at a fair market value for the\r\nacquired land. Therefore, before the High Court, the appellant filed an\r\napplication under Order 41 Rule 27 CPC for additional evidence to bring\r\non record the sale deeds and certified copy of the judgment and award\r\npassed by the Reference Court which, according to the appellant, would\r\nhave a direct bearing on the determination of the fair market value of the\r\nacquired land. The High Court has rejected the said application by\r\nobserving that the application does not satisfy the requirement of Order\r\n41 Rule 27 read with Section 96 of the CPC. The High Court has also&nbsp;observed that the appellant has failed to establish that notwithstanding\r\nexercise of due diligence, such additional evidence was not within his\r\nknowledge and could not after exercise of due diligence be produced\r\nbefore the courts below. However, the High Court while considering the\r\napplication for additional evidence has not appreciated the fact that the\r\ndocuments which were sought to be produced as additional evidence\r\nmight have a bearing on determination of the fair market value of the\r\nacquired land. It is to be noted that except the sale deed dated\r\n29.12.1987, which was rejected by the courts below, no further evidence\r\nwas on record to determine the fair market value of the acquired land. It\r\nwas a case of awarding of fair compensation to the land owner whose\r\nland has been acquired for public purpose. It cannot be disputed that\r\nthe claimant whose land is acquired is entitled to the fair market value of\r\nhis land.\r\n<font face=\"Helvetica\"><span style=\"font-size: 14px;\"><i><br></i></span></font></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><b><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><b>4. It is true that the general principle is that the appellate court should\r\nnot travel outside the record of the lower court and cannot take any\r\nevidence in appeal. However, as an exception, Order 41 Rule 27 CPC\r\nenables the appellate court to take additional evidence in exceptional\r\ncircumstances. It may also be true that the appellate court may permit\r\nadditional evidence if the conditions laid down in this Rule are found to\r\nexist and the parties are not entitled, as of right, to the admission of such&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">evidence. However, at the same time, where the additional evidence\r\nsought to be adduced removes the cloud of doubt over the case and the\r\nevidence has a direct and important bearing on the main issue in the suit\r\nand interest of justice clearly renders it imperative that it may be allowed\r\nto be permitted on record, such application may be allowed. Even, one\r\nof the circumstances in which the production of additional evidence\r\nunder Order 41 Rule 27 CPC by the appellate court is to be considered\r\nis, whether or not the appellate court requires the additional evidence so\r\nas to enable it to pronouncement judgment or for any other substantial\r\ncause of like nature. As observed and held by this Court in the case of\r\nA. Andisamy Chettiar v. A. Subburaj Chettiar, reported in (2015) 17 SCC\r\n713, the admissibility of additional evidence does not depend upon the\r\nrelevancy to the issue on hand, or on the fact, whether the applicant had\r\nan opportunity for adducing such evidence at an earlier stage or not, but\r\nit depends upon whether or not the appellate court requires the evidence\r\nsought to be adduced to enable it to pronounce judgment or for any\r\nother substantial cause. It is further observed that the true test,\r\ntherefore is, whether the appellate court is able to pronounce judgment\r\non the materials before it without taking into consideration the additional\r\nevidence sought to be adduced.&nbsp;</b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><b><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><b>5. Applying the law laid down by this Court in the aforesaid decision\r\nto the facts of the case on hand, we are of the opinion that while\r\nconsidering the application for additional evidence, the High Court has\r\nnot at all adverted to the aforesaid relevant consideration, i.e., whether\r\nthe additional evidence sought to be adduced would have a direct\r\nbearing on pronouncing the judgment or for any other substantial cause.\r\nAs observed hereinabove, except sale deed 29.12.1987, which as such\r\nwas rejected, there was no other material available on record to arrive at\r\na fair market value of the acquired land. Therefore, in the facts and\r\ncircumstances of the case, the High Court ought to have allowed the\r\napplication for additional evidence. However, at the same time, even\r\nafter permitting to adduce the additional evidence, the applicant has to\r\nprove the existence, authenticity and genuineness of the documents\r\nincluding contents thereof, in accordance with law and for the aforesaid\r\npurpose, the matter is to be remanded to the Reference Court.\r\n</b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><b><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><b>6. In view of the above discussion and for the reasons stated above,\r\nthe present appeal is partly allowed. Order passed by the High Court\r\nrejecting IA No. 1384/2019 for adducing additional evidence to bring on\r\nrecord the documents mentioned in the said application is hereby\r\nquashed and set aside. IA No. 1384/2019 filed before the High Court for\r\nadducing additional evidence under Order 41 Rule 27 CPC is hereby&nbsp;&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">allowed. The appellant herein is permitted to bring on record the\r\ndocuments mentioned in IA No. 1384/2019 as additional evidence.\r\nHowever, as observed and held by this Court in the case of Uttaradi Mutt\r\nv. Raghavendra Swamy Mutt, (2018) 10 SCC 484, allowing the\r\napplication filed under Order 41 Rule 27 CPC does not lead to the result\r\nthat the additional documents/additional evidence can be straightway\r\nexhibited rather, the applicant would have to not only prove the\r\nexistence, authenticity and genuineness of the said documents but also\r\nthe contents thereof, in accordance with law. It is observed that thus the\r\ndocuments which are permitted to be brought on record as additional\r\nevidence have to be proved by the appellant before the Reference\r\nCourt, in accordance with law and only thereafter and after proving the\r\nexistence, authenticity and genuineness of the said documents including\r\ncontents thereof, the same can be taken into consideration by the\r\nReference Court.&nbsp;</span></b></p>', '503eb3cb672368d55a4aee5300398523.jpeg', '4efb1761dfd6dd08725c9f4c0d33fb6b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-10', 1, '', '', '2022-03-11 03:20:29', '2022-03-10 16:46:54'),
(1394, 'lyQiVzAZV3HscHkrWvRvzudyz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Court can record compromise among parties even after auction of subject property is completed since successful auction purchaser has no vested right till sale certificate is issued in his favour. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gandadhar Siddalingappa Melagiri Vs Sabdulrahiman Rajesab Gulagundi.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 104096 of 2021. Decided on 23 October 2021.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-GB\" style=\"font-size: 13pt; font-family: \"Times New Roman\", serif;\"><b>2. Civil Misc. No.19/2018 had been filed by the petitioner, who is the auction purchaser of a house property which is the subject matter of proceedings in FDP No.7/2006, whereunder on the basis of a report of the Court Commissioner appointed that the property could not be partitioned, the said property was put up for auction and the auction was conducted on 03.02.2018.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-GB\" style=\"font-size: 13pt; font-family: \"Times New Roman\", serif;\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-GB\" style=\"font-size: 13pt; font-family: \"Times New Roman\", serif;\"><b>3. Before the sale certificate could be issued, the family members who were parties to the proceedings in FDP No.7/2006 entered into a compromise, filed a compromise petition which came to be recorded by the Lok-Adalath on the matter being referred to the Lok-Adalath on 16.07.2018 and a decree was drawn up on 14.08.2018.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-GB\" style=\"font-size: 13pt; font-family: \"Times New Roman\", serif;\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-GB\" style=\"font-size: 13pt; font-family: \"Times New Roman\", serif;\"><b>4. The grievance of the petitioner is that the petitioner being the successful auction purchaser, has a vested right created in favour of the petitioner and therefore, the compromise petition could not have been taken on record post the auction being held negating the rights of the petitioner.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-GB\" style=\"font-size: 13pt; font-family: \"Times New Roman\", serif;\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-GB\" style=\"font-size: 13pt; font-family: \"Times New Roman\", serif;\">5. In the peculiar facts of the case, I am of the considered opinion that when the family members have entered into a compromise and decided to partition the properties among themselves, merely because one of the properties could not have been partitioned and the same having been brought for auction ought not to come in the way of compromise being entered into in a partition suit though in FDP proceedings. There is no vested right or interest as such created in favour of the petitioner and even if such a vested right exists, I am of the considered opinion that the compromise entered into between the family members would have to be given precedence </span><span style=\"font-family: \"Times New Roman\", serif; font-size: 13pt;\">since such a compromise ends a dispute among the family members. At the most, the right of purchaser is financial in nature and such financial right cannot come in the way of resolution of a family dispute.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-GB\" style=\"font-size: 13pt; font-family: \"Times New Roman\", serif;\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-GB\" style=\"font-size: 13pt; font-family: \"Times New Roman\", serif;\"><b>6. By way of the impugned order dated 04.09.2021, the FDP Court has also rejected the application on the ground that the petitioner had not made payment of full purchase money within the stipulated time and therefore, the sale would not become absolute. Admittedly, the amounts have not been deposited. Though the contention of Sri.C.S.Shettar, learned counsel for the petitioner is that the matter was posted for filing of objections to the Commissioner’s report, wherein the Commissioner had brought to the notice of the FDP Court about the auction proceedings, I am of the considered opinion that since the auction sale had not been completed and sale certificate having not been issued, there would be no vested right as such created in favour of the petitioner and as such there would no requirement to interfere in the matter. Hence, the petition is dismissed at the stage of admission itself.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-GB\" style=\"font-size: 13pt; font-family: \"Times New Roman\", serif;\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-GB\" style=\"font-size: 13pt; font-family: \"Times New Roman\", serif;\">7. The FDP Court is directed to refund the entire money deposited by the petitioner within a period of four weeks from the date of receipt of the certified copy of </span><span style=\"font-family: \"Times New Roman\", serif; font-size: 13pt;\">this order.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '27b6870ce7a03b3e437e00f846b42154.jpeg', '25f6823aacf3884e2e7c9063202d415a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-10', 1, '', '', '2022-03-10 21:59:52', '2022-03-10 15:31:11');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1398, 'SErGF0kITSff7vhxsgmidcHp2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Inter-Commissionerate Transfers. Posting of spouses at the same station are subject to the requirement of the administration. Employee has no fundamental right to claim a transfer or posting of his choice. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>SK Nausad Rahaman and Others Vs Union of India and Others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1243 of 2022. Decided on 10 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">Justice Dhananjaya Y Chandrachud and Justice </span><span style=\"font-size: 12.5pt;\">Vikram Nath.</span><span lang=\"EN-US\"><o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\"></span></b></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 12.5px; line-height: normal; font-family: Arial;\"><b>24 First and foremost, transfer in an All India Service is an incident of service. Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice.<span class=\"Apple-converted-space\">&nbsp;</span></b></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 12.5px; line-height: normal; font-family: Arial;\"><span class=\"Apple-converted-space\"><b><br></b></span></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 12.5px; line-height: normal; font-family: Arial;\"><b><span class=\"Apple-converted-space\"></span></b></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 12.5px; line-height: normal; font-family: Arial;\"><b>25 Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration.<span class=\"Apple-converted-space\">&nbsp;</span></b></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 12.5px; line-height: normal; font-family: Arial;\"><span class=\"Apple-converted-space\"><b><br></b></span></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 12.5px; line-height: normal; font-family: Arial;\"><b><span class=\"Apple-converted-space\"></span></b></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 12.5px; line-height: normal; font-family: Arial;\"><b>26 Third, policies which stipulate that the posting of spouses should be preferably, and to the extent practicable, at the same station are subject to the<span class=\"Apple-converted-space\">&nbsp;&nbsp;</span>requirement of the administration<span class=\"Apple-converted-space\">&nbsp;</span></b></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 12.5px; line-height: normal; font-family: Arial;\"><span class=\"Apple-converted-space\"><b><br></b></span></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 20.1px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 12.5px; line-height: normal; font-family: Arial;\"><b>28 Fourth, norms applicable to the recruitment and conditions of service of officers belonging to the civil services can be stipulated in:<span class=\"Apple-converted-space\">&nbsp;</span></b></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 20.1px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 12.5px; line-height: normal; font-family: Arial;\"><b>(i) A law enacted by the competent legislature;<span class=\"Apple-converted-space\">&nbsp;</span></b></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 20.1px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 12.5px; line-height: normal; font-family: Arial;\"><b>(ii) Rules made under the proviso to Article 309 of the Constitution; and<span class=\"Apple-converted-space\">&nbsp;</span></b></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 12.5px; line-height: normal; font-family: Arial;\"><b><span class=\"Apple-converted-space\"></span></b></p><p class=\"p3\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 12.5px; line-height: normal; font-family: Arial;\"><b>(ii) Executive instructions issued under Article 73 of the Constitution, in the case of civil services under the Union and Article 162, in the case of civil services under the States.<span class=\"Apple-converted-space\">&nbsp;</span>Fifth, where there is a conflict between executive instructions and rules framed under Article 309, the rules must prevail. In the event of a conflict between the rules framed under Article 309 and a law made by the appropriate legislature, the law<span class=\"Apple-converted-space\">&nbsp;</span>prevails. Where the rules are skeletal or in a situation when there is a gap in the rules, executive instructions can supplement what is stated in the rules</b></p><p class=\"p3\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 12.5px; line-height: normal; font-family: Arial;\"><b><br></b></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 12.5px; line-height: normal; font-family: Arial;\"><b>29 Sixth, a policy decision taken in terms of the power conferred under Article 73 of the Constitution on the Union and Article 162 on the States is subservient to the recruitment rules that have been framed under a legislative enactment or the rules under the proviso to Article 309 of the Constitution</b></p><p class=\"p3\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 12.5px; line-height: normal; font-family: Arial;\"><br></p>', '49cff4c4755d523b2ed0f6e92d1f4cb1.JPG', 'eb18cc677dc21bb1f5aa452862c1ed40.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-10', 1, '', '', '2022-03-11 04:17:15', '2022-03-10 17:16:25'),
(1419, 'BkNQvld9z6yirEqnAeRgSFOB6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Rejection of plaint. Suit for declaration and injunction based only on Section 53A of the Transfer of Property Act can not rejected when the reliefs prayed are interconnected. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sri Biswanath Banik and Another Vs Sulanga Bose and Others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1848 2022 decided on 14 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order passed by the High Court of Calcutta in C.O. No. 1417 of\r\n2017 by which the High Court has allowed the said petition and has\r\nquashed and set aside the order passed by the trial court refusing to\r\nreject the plaint in exercise of powers under Order VII Rule 11 of Code of\r\nCivil Procedure, 1908 (CPC) and consequently has rejected the plaint\r\nunder Order VII Rule 11 CPC mainly on the ground that the suit is barred\r\nby limitation and that a suit for a declaration simpliciter under Section\r\n53A of the Transfer of Property Act would not be maintainable as against\r\nthe actual owner, the original plaintiffs have preferred the present</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.2 Having served with the suit notice, the defendants submitted an\r\napplication before the trial court requesting to reject the plaint under\r\nOrder VII Rule 11 CPC mainly on the ground that the suit is barred by\r\nlimitation and that the suit for a declaration simpliciter under Section 53A\r\nof the Transfer of Property Act would not be maintainable. That the trial\r\ncourt rejected the said application and refused to reject the plaint in\r\nexercise of powers under Order VII Rule 11 CPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2.3 Feeling aggrieved and dissatisfied with the order passed by the\r\ntrial court refusing to reject the plaint under Order VII Rule 11 CPC, the\r\noriginal defendants preferred revision application/application before the\r\nHigh Court. By the impugned judgment and order, the High Court has\r\nquashed and set aside the order passed by the trial court and\r\nconsequently has allowed the application under Order VII Rule 11 CPC\r\nand has rejected the plaint on the ground that the suit is barred by\r\nlimitation and that the suit for a declaration simpliciter under Section 53A\r\nof the Transfer of Property Act would not be maintainable against the\r\nactual owner.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. At the outset, it is required to be noted that the trial court rejected\r\nthe application under Order VII Rule 11 CPC and refused to reject the\r\nplaint. However, the High Court by the impugned judgment and order\r\nhas set aside the order passed by the trial court and allowed the\r\napplication under Order VII Rule 11 CPC and has rejected the plaint on\r\nthe ground that the suit is barred by limitation as well as the suit for a\r\ndeclaration simpliciter under Section 53A of the Transfer of Property Act\r\nwould not be maintainable.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. Now, so far as the issue whether the suit can be said to be barred\r\nby limitation or not, at this stage, what is required to be considered is the\r\naverments in the plaint. Only in a case where on the face of it, it is seen\r\nthat the suit is barred by limitation, then and then only a plaint can be\r\nrejected under Order VII Rule 11(d) CPC on the ground of limitation. At\r\nthis stage what is required to be considered is the averments in the\r\n6\r\nplaint. For the aforesaid purpose, the Court has to consider and read\r\nthe averments in the plaint as a whole.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7.1 From the aforesaid decision and even otherwise as held by this\r\nCourt in a catena of decisions, while considering an application under\r\nOrder VII Rule 11 CPC, the Court has to go through the entire plaint averments and cannot reject the plaint by reading only few\r\nlines/passages and ignoring the other relevant parts of the plaint. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7.3 In the present case, while holding that the suit is barred by\r\nlimitation, the High Court has considered only the averments made in\r\nparagraph 4 and has not considered the entire plaint averments.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7.4 While rejecting the plaint, the High Court has also observed and\r\nheld that the suit for a declaration simpliciter under Section 53A of the\r\nTransfer of Property Act against the original owner would not be\r\nmaintainable and for that reliance is placed upon the decision of this\r\nCourt in the case of Delhi Motor Company (supra). However, it is\r\nrequired to be noted that even the plaintiffs have also prayed for the\r\ndecree for a permanent injunction claiming to be in possession and the\r\ndeclaration and permanent injunction as such invoking Section 53A of\r\nthe Transfer of Property Act. When the suit is for a decree of permanent\r\ninjunction and it is averred that the plaintiffs are in possession of the suit\r\nproperty pursuant to the agreement and thereafter, they have developed\r\nthe land and that they are in continuous possession since more than\r\ntwelve years and they are also paying taxes to the Corporation, the\r\ncause of action can be said to have arisen on the date on which the\r\npossession is sought to be disturbed. If that be so, the suit for decree\r\nfor permanent injunction cannot be said to be barred by limitation. It is\r\nthe settled proposition of law that the plaint cannot be rejected partially.\r\nEven otherwise, the reliefs sought are interconnected. Whether the\r\nplaintiffs shall be entitled to any relief under Section 53A of the Transfer <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of Property Act or not has to be considered at the time of trial, but at this\r\nstage it cannot be said that the suit for the relief sought under Section\r\n53A would not be maintainable at all and therefore the plaint is liable to\r\nbe rejected in exercise of powers under Order VII Rule 11 CPC.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. In view of the above and for the reasons stated above, the High\r\nCourt has committed a grave error in allowing the application under\r\nOrder VII Rule </b><b style=\"font-size: 12pt;\">11 CPC and rejecting the plaint. The High Court has\r\nexceeded in its jurisdiction in rejecting the plaint while exercising the\r\npowers under Order VII Rule 11 CPC. The impugned judgment and\r\norder passed by the High Court is unsustainable both, on law as well as\r\non facts.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. For the reasons stated hereinabove, the present appeal succeeds.\r\nThe impugned judgment and order passed by the High Court allowing\r\nthe C.O. and quashing and setting aside the order passed by the trial\r\ncourt refusing to reject the plaint under Order VII Rule 11 CPC and\r\nconsequently rejecting the plaint under Order VII Rule 11 CPC is hereby\r\nquashed and set aside. The application submitted by the original\r\ndefendants to reject the plaint under Order VII Rule 11 CPC stands\r\ndismissed. The order passed by the trial court stands restored. Now, the\r\ntrial to proceed further in accordance with law and on its own merits.\r\nHowever, it is observed that whatever observations are made by this <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court in the present order shall be confined to deciding the application\r\nunder Order VII Rule 11 CPC only and the trial court to finally decide and\r\ndispose of the suit in accordance with law and on its own merits and on\r\nthe basis of the evidence led.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">Present appeal is allowed accordingly. However, in the facts and\r\ncircumstances of the case, there shall be no order as to costs. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '36329756933437274c104b521bac20c8.jpeg', '2cf4ca3da69fc7c02df59379235ee46b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-14', 1, '', '', '2022-03-15 02:53:40', '2022-03-15 06:26:46');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1414, 's4gDhDot6n83SwZhyRts1touk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Section 69(2) of the Partnership Act of 1932 is NOT a bar to a suit filed by an unregistered firm, if the same is for enforcement of a statutory right or a common law right. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shiv Developers Vs Aksharay Developers and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 785 of 2022 decided on 31 January 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dinesh Maheshwari and Justice Vikram Nath. &nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. This appeal, by the plaintiff of a suit for declaration and injunction, is directed against the judgment and order dated 15.02.2018, as passed by the High Court of Gujarat, (For short, \'the High Court\') in Civil Revision Application No. 241 of 2017, whereby the High Court has allowed the revision application filed by the contesting defendants (respondent Nos. 1 to 3 herein) and has reversed the order dated 07.04.2017, as passed by the Court of 9th Additional Senior Civil Judge, Vadodara (For short, \'the Trial Court\') in Special Civil Suit No. 333 of 2015. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.1. By the said order dated 07.04.2017, the Trial Court had rejected the application moved by the contesting defendants under Order VII Rule 11(d), Order XXX Rules 1 and 2 and Section 151 of the Code of Civil Procedure, 1908 (For short \'the Code\') read with Section 69 of the Indian Partnership Act, 1932 for rejection of plaint on the ground that the suit filed by and on behalf of an unregistered partnership firm was barred by law. The Trial Court essentially held that, on its subject-matter relating to the validity of the sale deed in question, the bar of Section 69(2) was not operating against this suit. However, the High Court has taken a contrary view of the matter and has held that the plaintiff, being an unregistered firm, would be barred to enforce a right arising out of the contract in terms of Section 69(2) of the Act of 1932. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. We may take note of the factual matrix and the background aspects of the matter, so far relevant for the question calling for determination in this matter, i.e., as to whether the subject suit, filed by an unregistered partnership firm, is covered by the bar created by Section 69(2) of the Act of 1932? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. For a proper comprehension of the subject-matter, worthwhile it would be to take note of the status of respective parties before dilating on the pleadings and submissions. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.1. The appellant herein is an unregistered partnership firm by the name \"Shiv Developers\". It is stated that this firm is engaged in the business of construction of buildings and is comprising of two equal partners, namely, Mr. Sunilbhai Somabhai Ajmeri and Mr. Jignesh Kanubhai Desai. The said Mr. Sunilbhai Somabhai Ajmeri is also referred to as \'the administrator\' of this firm and has filed the suit on behalf of the firm. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.2. In the suit so filed by the plaintiff-appellant, a partnership firm in the name \"Aksharay Developers\" has been arrayed as defendant No. 1 (respondent No.1 herein) whereas the defendant Nos. 2 to 4 namely, Dineshbhai Bhailal Bhai Patel, Arjunsinh Narayansinh Rajput, and Ranjitsinh Narayansinh Rajput (respondent Nos.2 to 4 herein) have been joined in their capacity as the partners of the defendant No. 1 firm. As shall be noticed hereafter, the composition of this firm, in the name \"Aksharay Developers\" with the said persons as partners, is itself a matter of contention in the suit so filed by the plaintiff-appellant. The Municipal Commissioner and the Town Development Officer of Vadodara Municipal Corporation have also been joined as defendant Nos. 5 and 6 in the suit but they are not the contesting parties in relation to the subject-matter of this appeal. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Now, we may briefly refer to the relevant aspects of the case of appellant, as emerging from the plaint averments. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.1. The plaintiff-appellant has averred that on 26.11.2013, the appellant and the respondent Nos. 2 and 3 purchased a property (open land) (Hereinafter referred to as \'the suit property\') bearing Tika No. 5/3, City Survey No. 104, 105, 132, 106/A in City Survey Vibhag- B, situated on Kalal Pitha Road, Hujaratpaga, Sub-District Vadodara, admeasuring 232.81 square metres, through a registered sale deed. According to the appellant, its share in the suit property was 60% and the respective shares of respondent Nos. 2 and 3 were 20% each. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.2. It has further been averred that on 22.04.2014, a new partnership by the firm name \"Aksharay Developers\" was formed with four partners, namely, Sunilbhai Somabhai Ajmeri (also the partner and administrator of the appellant firm) and the respondent Nos. 2, 3 and 4. According to the plaint averments, the said partnership was formed exclusively for the purpose of the project related with the suit property and the tenure of the partnership was confined to the completion of the said project. A Memorandum of Understanding (For short, \'MOU\') was signed by the partners on the date of incorporation of the firm, i.e., 22.04.2014; and it was agreed in the MOU that from the income which may accrue from the project, a fixed sum of Rs 1,00,00,000 (Rs. One Crore) would be paid to Sunilbhai Somabhai Ajmeri along with 5-10% on the profit accruing upon the completion of project. According to the appellant, the said MOU clearly acknowledged the fact that all the parties to the MOU were the partners of the firm \"Aksharay Developers\" and the MOU was being entered by virtue of the same. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.3. The grievance of the appellant has been stated in the manner that in new turn of events, on 23.02.2015, the respondent Nos. 2 and 3 constituted another firm under the same name and style as \"Aksharay Developers\" but without including Sunilbhai Somabhai Ajmeri and respondent No. 4 as partners. This firm, as constituted on 23.02.2015, is the respondent No. 1 herein and it is alleged that the same has been constituted and got registered by the respondent Nos. 2 and 3 clandestinely and fraudulently. It is further alleged that on the very next day of constituting the respondent No. 1 firm, i.e., on 24.02.2015, the respondent Nos. 2 and 3 got executed a sale deed, whereby 60% share of the appellant in the suit property was purchased by this firm Aksharay Developers from Sunilbhai Somabhai Ajmeri, acting on behalf of the appellant firm Shiv Developers. It has yet further been alleged that the cheques issued in favour the appellants towards sale consideration were dishonoured. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.4. As per the appellant, Sunilbhai Somabhai Ajmeri (acting on behalf of the appellant firm) was oblivious to the fact that on 23.02.2015, the respondent Nos. 2 and 3 got registered a partnership firm under the name \"Aksharay Developers\" without any mention of himself and the respondent No. 4; and that Sunilbhai Somabhai Ajmeri was throughout under the bona fide belief that the suit property of appellant firm was being sold to that firm wherein he was also a partner as per the partnership deed and MOU dated 22.04.2014. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.5. With the aforesaid assertions, the appellant has alleged that the respondent Nos. 2 and 3 have obtained the suit property through a wellhatched conspiracy and without even discharging the sale consideration; and as per the terms agreed upon in the sale deed dated 24.02.2015, if the cheques issued towards sale consideration were not honoured, the sale deed shall be deemed to be null and void. Accordingly, the appellant has instituted the subject suit seeking perpetual injunction and declaration of the sale deed dated 24.02.2015 as null and void.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. In the suit so filed by the appellant, the respondent Nos. 1 to 3 appeared in response to the summonses and moved an application for rejection of plaint with reference to the provisions of the Act of 1932. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.1. The contesting respondents submitted in the said application that the plaintiff-appellant had neither produced any documentary evidence to show that the suitor firm was a registered partnership firm nor any averment was taken in that regard in the plaint. It was further submitted that the sale deed in question (marked 4/4) was a registered document and the same was executed by Sunilbhai Somabhai Ajmeri as administrator-partner of the firm Shiv Developers. The respondents thus contended that the suit for declaration against the registered sale document, when the plaintiff had not shown to be a registered firm, was barred by Section 69 of the Act of 1932. In other words, contention of the respondents had been that as per the mandate of Section 69 of the Act of 1932, the plaintiff, being an unregistered partnership firm, was barred to file a suit regarding the rights arising from any agreement/contract. It was also submitted that as per Order XXX CPC, a suit could be filed on behalf of the firm by any person who is a partner of the firm but the person filing the plaint had not produced any evidence to show that he was a partner in the said firm. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.2. The application so moved for rejection of plaint was opposed by the plaintiff-appellant with the submissions, inter alia, that Section 69 of the Act of 1932 was not applicable in the case of fraud. It was further submitted that the plaintiff has been a partner of the firm Aksharay Developers and there was no evidence to show that the said partnership firm Aksharay Developers had been dissolved. It was also submitted that the subject-matter of the suit was to get the sale document quashed on account of fraud and cheating; and the suit of this nature was not barred by Section 69 of the Act of 1932. Thus, the primary contention on behalf of the plaintiff-appellant had been that the bar of Section 69 of the Act of 1932 was not attracted because the subject suit was not for enforcement of any right arising from the contract pertaining to the business of the firm but was for enforcement of statutory rights of the plaintiff. It was also submitted that there was no bar of Order XXX CPC to the present suit inasmuch as there was no dispute by the defendants as regards the partnership firm and they had also not prayed for declaring the names of the partners. It has also been the contention on behalf of the plaintiffappellant that the necessary evidence was required to be led in relation to the pleas sought to be raised by the defendants and, as such, the application was not maintainable at the given stage. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. In its order dated 07.04.2017, the Trial Court took note of the rival submissions and examined the provisions contained in Section 69 of the Act of 1932 as also the decisions cited on behalf of the parties. After taking note of the principles of law enunciated by this Court and the factual aspects of the case at hand, the Trial Court rejected the contentions urged on behalf of the respondents, inter alia, for the reason that it was not prima facie borne out that the sale document (marked 4/4) was pertaining to an agreement/contract relating to the business of the partnership by the name \"Shiv Developers\". The Trial Court further noticed the case of the plaintiff that the amount of sale consideration had not been received and opined that the suit would not be barred by the provisions of Section 69 of the Act of 1932 because of non-receipt of amount of sale consideration by the partners of the firm which had sold the property by a registered document and had the legal right of receiving the amount of sale consideration. The Trial Court further observed that dismissal of the suit was not envisaged by the provisions contained in Order XXX CPC. Therefore, the application as moved by the respondents was rejected by the Trial Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. The contesting defendants (respondent Nos. 1 to 3 herein) challenged the orders so passed by the Trial Court by way of a revision application before the High Court. This revision application has been allowed by the High Court by the impugned judgment and order dated 15.02.2018. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.1. It was contended on behalf of the contesting defendants/revisionists before the High Court that the appellant firm being an unregistered partnership firm, the subject suit by this firm for enforcement of a right arising out of the contract of sale was squarely within the ambit of Section 69 of the Act of 1932 and the Trial Court had erred in disallowing the application for rejection of the plaint while proceeding contrary to the applicable provisions of law as also the settled principles enunciated in the binding decisions. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.2. Per contra, it was argued on behalf of the plaintiff-appellant that specific fraud has been alleged in the present case; that Sunilbhai Somabhai Ajmeri and the defendant Nos. 2 and 3 entered into the contract in independent capacity, which later on, as a part of design of the said defendants, was converted into a registered sale deed. It was contended that the issues raised in the plaint need to be adjudicated after trial and the plaint cannot be rejected under Order VII Rule 11(d) CPC. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. Having taken note of rival submissions, the High Court summarised the findings of the Trial Court, including its conclusion based upon the sale document, that the transaction in question was an independent one and the claim made in the suit was not arising out of any business transaction of the firm or the contract relating to or arising out of business transactions. The High Court also took note of the prayers in the plaint for declaring the sale deed as being fraudulent, illegal and void and the respondents having no right to float any scheme on the suit land. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.1. The High Court thereafter referred to the submissions of the respondents with reference to Order XXX Rules 1 and 2 CPC read with Section 69 of the Act of 1932 and, before reproducing the said Section 69, recorded its endorsement of one of the relevant findings of the Trial Court in the following terms: - \"23……On a bare reading of this provision it appears that the learned trial judge has rightly observed that the transaction in question is not arising out of the business of plaintiff firm nor claim is generated from the plaintiff firm……\" </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.2. Thereafter, The High Court, in the context of Section 69(2), held that the transaction under challenge was a sale document dated 24.02.2015, entered into by the plaintiff, an unregistered firm, with the respondents who were third-parties; and held that, by the effect of non -registration of the firm, the suit appeared to be not maintainable. The said findings read as follows: - \"24....The relevant provisions which is to be construed on the case on hand is Sub Section 2 of Section 69 which indicates that no suit to enforce a right arising from a contract shall be instituted in any court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. Here is the case in which the transaction which is under challenge is a sale dated 24.02.2015 is a document entered in to by the plaintiff firm against the defendants who are third party and undisputedly the plaintiff firm is an unregistered firm, and therefore, by effect of nonregistration, the suit appears to be not maintainable....\" </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.3. The High Court, thereafter, referred to various decisions cited at the Bar including that in the case of Purushottam and Anr. v. Shivraj Fine Art Litho Works and Ors., as reported in (2007) 2 G.L.H. 406[= (2007) 15 SCC 58] and in that regard, observed as under7 : - \"33. Another decision which has been pressed into service a decision in the case of Purushottam (supra) and by referring to this a contention is raised that the bar of Section 69(2) will not apply in the background of this fact. However, again if the fact is to be seen of that decision even the head note of the said decision itself makes it clear that if the right sought to be enforced does not arise from a contract to which unregistered firm is a party or is not entered into in connection with the business of the unregistered firm, the bar under Section 69(2) will not apply. As such, on the contrary, this decision helps the petitioners to substantiate the contention here as seen in the proceeding on hand that there is a transaction entered into by and on behalf of plaintiff firm which is undisputedly unregistered firm and the claim and relief sought is arising out of that contract which has been entered into to which plaintiff unregistered is a very much party. Hence, this judgment, on the contrary will not come, in assistance to the respondent as in that particular case, the contract was neither entered into by unregistered firm nor it was entered into by unregistered firm in the course of its business, and therefore, suit was held to be maintainable.\" </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.4. Ultimately, after an analysis of various decisions, the High Court allowed the revision application and set aside the order dated 07.04.2017 of the Trial Court with the consequential effect of rejection of plaint in the following words: -</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>\"We are not dilating on various other decisions referred by the High Court but have reproduced the aforementioned paragraph 33 for its implication, as shall appear in the discussion hereafter later. \"36. The overall analysis of the aforesaid decisions which are pressed into service and the undisputed background of the circumstances of this case has clearly spelt-out that the suit proceedings which are hit by Section 69(2) of the Act read with Order 30 of the C.P.C., there is no reason why such nonmaintainable proceedings be allowed against the object of Order 7 Rule 11(d). Hence, by giving full effect to the statutory provisions, the Court is of the considered opinion that serious error jurisdiction is committed by the Court, and as such present Revision Application deserves to be allowed, and the impugned order dated 07.04.2017 passed below Exh. 11 in Special Civil Suit No. 333 of 2015 by the learned 9th Additional Senior Civil Judge, Vadodara is quashed and set aside with a consequential effect of rejection of plaint. \" </i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. The aforesaid judgment and order dated 15.02.2018 as passed by the High Court has been challenged in this appeal by the plaintiff appellant. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. Learned counsel for the appellant has submitted that the High Court has failed to appreciate that Section 69(2) of the Act of 1932 does not bar all suits by an unregistered partnership firm against third parties. In the factual matrix of the present case, suit is not hit by Section 69(2) because the contract is not in the regular business dealings of the firm; and the words \"enforcing a right arising under the contract\" used in Section 69(2) of the Act of 1932 signify the rights arising out of contracts in respect of the firm\'s business transactions only. Learned counsel has relied upon the decisions in Haldiram Bhujiawala and Anr. v. Anand Kumar Deepak Kumar and Anr: (2000) 3 SCC 250 and Purushottam (supra). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.1. Learned counsel has supplemented his arguments with reference to the concurrent findings of the Trial Court and the High Court on the fact that the contract under consideration, on which the suit is premised, was not in connection with the business of the unregistered firm. Therefore, as per the law laid down by this Court, suit of the appellant is not barred under the provisions of Section 69(2) of the Act of 1932. Learned counsel has further argued that the High Court has committed an error in bringing all suits by an unregistered firm against the third party within the ambit of Section 69(2) of the Act of 1932. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.2. In addition to the above, learned counsel has also emphasised that Section 69(2) of the Act does not bar a suit by an unregistered partnership firm for enforcement of a statutory right or a common law right, as held by this Court in Haldiram Bhujiawala (supra). In this regard, the learned counsel has also referred to the findings of the Trial Court that since the contract of sale has been affected through a registered sale document, non-payment of the consideration against the said sale gives right to the appellant firm to enforce the terms of the sale document; and such a right is acquired by law, under the Transfer of Property Act, 1882. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. Per contra, learned counsel appearing for the contesting respondents has strenuously argued that the sale document dated 23.02.2015 was executed by the administrator-partner of the unregistered firm and not in his individual capacity. Consequently, the sale document was related to the business of the firm. Thus, the learned counsel has supported the High Court\'s conclusion that the suit was hit by the bar under Section 69(2) of the Act of 1932. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.1. Learned counsel for the contesting respondents has referred to the cases of Umesh Goel v. Himachal Pradesh Co-operative Group Housing Society Ltd: (2016) 11 SCC 313 and Farooq v. Sandhya Anthraper Kurishingal and Ors.: (2018) 12 SCC 580, for the submission that any suit filed by an unregistered partnership firm is hit by Section 69 of the Act of 1932; and if the said suit is filed for enforcement of rights arising out of a contract to which the said unregistered partnership firm is a party, it would be rendered non-maintainable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.2. Thus, learned counsel for the contesting respondents would argue that the High Court has rightly allowed the revision application and has rightly rejected the plaint filed by the appellant firm. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. Having given anxious consideration to the rival submissions and having examined the record with reference to the law applicable, we are clearly of the view that the impugned judgment and order dated 15.02.2018, as passed by the High Court, cannot be sustained and the bar of Section 69(2) of the Act of 1932 is not attracted to the suit filed by the appellant. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. For dealing with the questions raised in this matter, we may take note of the provisions contained in Section 69 of the Act of 1932 as follows: - <i>\"69. Effect of non-registration.- (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. (2) No suits to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. (3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect,— (a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or (b) the powers of an official assignee, receiver or Court under the Presidency-towns Insolvency Act, 1909 (3 of 1909) or the Provincial Insolvency Act, 1920 (5 of 1920) to realise the property of an insolvent partner. (4) This section shall not apply,— (a) to firms or to partners in firms which have no place of business in the territories to which this Act extends, or whose places of business in the said territories are situated in areas to which, by notification under Section 56, this Chapter does not apply, or (b) to any suit or claim of set-off not exceeding one hundred rupees in value which, in the Presidency-towns, is not of a kind specified in Section 19 of the Presidency Small Cause Courts Act, 1882 (5 of 1882), or, to outside the Presidency-towns, is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887 (9 of 1887), or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim.\" </i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. In our view, the questions arising in this matter could be directly answered with reference to the principles enunciated by this Court in the case of Raptakos Brett &amp; Co. Ltd. v. Ganesh Property: (1998) 7 SCC 184, which have further been explained and applied by this Court in the cases of Haldiram Bhujiawala and Purushottam (supra). We may take note of the principles vividly exposited in the case of Haldiram Bhujiawala (supra) that to attract the bar of Section 69(2) of the Act of 1932, the contract in question must be the one entered into by firm with the third-party defendant and must also be the one entered into by the plaintiff firm in the course of its business dealings; and that Section 69(2) of the Act of 1932 is not a bar to a suit filed by an unregistered firm, if the same is for enforcement of a statutory right or a common law right. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. Briefly put, the relevant factual aspects in the case of Haldiram Bhujiawala (supra) had been as follows: The suit in that case was filed by the plaintiffs seeking perpetual injunction to restrain the defendants from infringing the trademark and from using the trademark/name \'Haldiram Bhujiawala\'. There were two plaintiffs, the first being a partnership firm comprising of three sons of Moolchand whereas the second plaintiff was his fourth son. The historical facts were that the business in the name of \"Haldiram Bhujiawala\" was being carried on by one Ganga Bishan alias Haldiram since the year 1941. In the year 1965, he constituted a partnership with his two sons Moolchand, Shiv Kishan and his daughter-in-law Kamla Devi (wife of another son R.L. Aggarwal) to carry on business under the same name. The said firm was granted registration of the said trade name. However, on 16.11.1974, the said partnership was dissolved and in terms of the dissolution deed, the above trademark fell exclusively to the share of Moolchand for whole of the country except the State of West Bengal whereas the said Smt. Kamla Devi was given ownership of the trademark rights for the State of West Bengal. The four sons of Moolchand got their names recorded as subsequent joint proprietors of the trademark. Three of them formed a partnership (the plaintiff No. 1 in the subject suit) in the year 1983 and were running a shop at Chandni Chowk, Delhi. In the meantime, on 10.10.1977, the said R.L. Aggarwal and his son applied in Calcutta for registration of the same trademark while claiming themselves to be the full owners thereof without disclosing the dissolution deed dated 16.11.1974. One Ashok Kumar, son of Smt. Kamla Devi, constituted a new firm and opened a shop at Arya Samaj Road, Karol Bagh, New Delhi. In the given circumstances, the plaintiffs of the subject suit claimed the reliefs of injunction, damages, and for destruction of material etc., while claiming their rights of using the said trademark. The defendants sought rejection of the plaint for the reason that the plaintiff No. 1 was not a registered partnership firm on the date of filing of the suit. The application was dismissed by the Trial Court as also by the High Court. Hence, the matter was in appeal before this Court. The points arising for determination in the said matter were formulated by this Court in the following terms: - \"8. The points that arise for consideration are: (i) Whether Section 69(2) bars a suit by a firm not registered on the date of suit where permanent injunction and damages are claimed in respect of a trademark as a statutory right or by invoking common law principles applicable to a passing-off action? (ii) Whether the words \"arising from a contract\" in Section 69(2) refer only to a situation where an unregistered firm is enforcing a right arising from a contract entered into by the firm with the defendant during the course of its business or whether the bar under Section 69(2) can be extended to any contract referred to in the plaint unconnected with the defendant, as the source of title to the suit property? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.1. Answering the first question in the negative, this Court referred to the previous decision in Raptakos Brett &amp; Co. Ltd. (supra) and held as follows: - \"9. The question whether Section 69(2) is a bar to a suit filed by an unregistered firm even if a statutory right is being enforced or even if only a common law right is being enforced came up directly for consideration in this Court in Raptakas Brett Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184]. In that case, Majmudar, J. speaking for the Bench clearly expressed the view that Section 69(2) cannot bar the enforcement by way of a suit by an unregistered firm in respect of a statutory right or a common law right. On the facts of that case, it was held that the right to evict a tenant upon expiry of the lease was not a right \"arising from a contract\" but was a common law right or a statutory right under the Transfer of Property Act. The fact that the plaint in that case referred to a lease and to its expiry, made no difference. Hence, the said suit was held not barred. It appears to us that in that case the reference to the lease in the plaint was obviously treated as a historical fact. That case is therefore directly in point. Following the said judgment, it must be held in the present case too that a suit is not barred by Section 69(2) if a statutory right or a common law right is being enforced. xxxx xxxx xxxx 11. Likewise, if the reliefs of permanent injunction or damages are being claimed on the basis of a registered trademark and its infringement, the suit is to be treated as one based on a statutory right under the Trade Marks Act and is, in our view, not barred by Section 69(2). 12. For the aforesaid reasons, in both these situations, the unregistered partnership in the case before us cannot be said to be enforcing any right \"arising from a contract\". Point 1 is therefore decided in favour of the respondent-plaintiffs.\" (emphasis supplied) </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.2. This Court further exposited on the scope of the words \"enforcing a right arising under the contract\", as used in Section 69(2) of the Act of 1932; and after a detailed survey of the reports and precedents which led to the frame of the said provision as also after reference to various authorities on the point, this Court explained the rationale and object of the provision that the same was intended to protect those in commerce who deal with a partnership firm in business, inasmuch as they ought to be enabled to know the names of the partners of the firm before they deal with them in business; and the bar of Section 69(2) is not attracted to any and every contract referred to in the plaint as a source of title to an asset owned by the firm. This Court held and explained as under: -</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>\"23 The further and additional but equally important aspect which has to be made clear is that the contract by the unregistered firm referred to in Section 69(2) must not only be one entered into by the firm with the third-party defendant but must also be one entered into by the plaintiff firm in the course of the business dealings of the plaintiff firm with such third-party defendant.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>24... The real crux of the question is that the legislature, when it used the words \"arising out of a contract\" in Section 69(2), it is referring to a contract entered into in course of business transactions by the unregistered plaintiff firm with its defendant customers and the idea is to protect those in commerce who deal with such a partnership firm in business. Such third parties who deal with the partners ought to be enabled to know what the names of the partners of the firm are before they deal with them in business.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>25 Further, Section 69(2) is not attracted to any and every contract referred to in the plaint as the source of title to an asset owned by the firm. If the plaint referred to such a contract it could only be as a historical fact. For example, if the plaint filed by the unregistered firm refers to the source of the firm\'s title to a motor car and states that the plaintiff has purchased and received a motor car from a foreign buyer under a contract and that the defendant has unauthorisedly removed it from the plaintiff firm\'s possession, — it is clear that the relief for possession against the defendant in the suit does not arise from any contract which the defendant entered into in the course of the plaintiff firm\'s business with the defendant but is based on the alleged unauthorised removal of the vehicle from the plaintiff firm\'s custody by the defendant. In such a situation, the fact that the unregistered firm has purchased the vehicle from somebody else under a contract has absolutely no bearing on the right of the firm to sue the defendant for possession of the vehicle. Such a suit would be maintainable and Section 69(2) would not be a bar, even if the firm is unregistered on the date of suit. The position in the present case is not different.\"&nbsp;</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17. The aforesaid decision in Haldiram Bhujiawala (supra) was further considered and applied by this Court in the case of Purushottam (supra) while holding as under: -</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>\"24. With respect, we find ourselves in complete agreement with the principles enunciated in Haldiram Bhujiawala. Having regard to the purpose Section 69(2) seeks to achieve and the interest sought to be protected, the bar must apply to a suit for enforcement of right arising from a contract entered into by the unregistered firm with a third party in the course of business dealings with such third party. If the right sought to be enforced does not arise from a contract to which the unregistered firm is a party, or is not entered into in connection with the business of the unregistered firm with a third party, the bar of Section 69(2) will not apply.\"</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. Nothing contrary to the foregoing discussion is to be found in the decisions cited on behalf of the contesting respondents. The case of Umesh Goel (supra) essentially related to the operation of the provision contained in Section 69(3) of the Act of 1932 and interpretation of the expression \"other proceedings\" in the wake of the question as to whether arbitral proceedings and the award passed therein could be read into the expression \"other proceedings\". The said decision has no relevance to the questions at hand. In the case of Farooq (supra), this Court found, after a wholesome reading of the plaint, that the suit was based on clause 25(d) of the partnership deed which specifically stated that \'no partners of the firm shall without the consent in writing of the other partners being entitled to transfer immovable property belonging to the firm\'. In that case, two partners of an unregistered firm had sued for cancellation of a sale made by the defendant partner without the consent of all the partners. This Court found that the suit was only to enforce a right arising from the terms of said partnership deed and hence, it attracted the bar of Section 69(2) of the Act of 1932. The said decision, for an entirely different fact situation and different claim, has no application to the facts of the present case. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. Taking up the facts of the present case, one of the significant features herein is that the transaction in question, i.e., sale of its share by the plaintiff firm to the contesting defendants has not been the one arising out of the business of the plaintiff firm. This factual aspect is apparent from the basic plaint averments and is fortified by the concurrent findings of the Trial Court as also of the High Court. Though the High Court endorsed the finding that the transaction in question was not arising out of the business of the plaintiff firm but, it appears that the implication of this crucial finding has not acquired the requisite attention of the High Court. The decision of this Court in the case of Purushottam (supra) was cited before the High Court but, while referring to the same in paragraph 33 of the impugned judgment, the High Court probably looked only at the editor\'s headnote and in any case, missed out the ratio and principles therein, as reiterated with reference to the previous decisions. The decision in Haldiram Bhujiawala (supra) seems to have not gone into consideration of the High Court although this decision formed the sheet anchor of the order of the Trial Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.1. As noticed, the crucial and key factor in the present case remains that the sale transaction in question is not arising out of the business of the appellant firm. Equally significant fact is that the subject suit is for enforcing a right of avoidance of a document on the ground of fraud and misrepresentation as also the statutory rights of seeking declaration and injunction. Significantly, the composition of defendant firm \"Aksharay Developers\" (defendant No. 1) has itself been questioned by the plaintiffappellant while alleging that on 22.04.2014, this firm was constituted with four partners but later on, the defendant Nos. 2 and 3 (respondent Nos. 2 and 3 herein), constituted another firm in the same name with themselves as partners while leaving aside the other two. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.2. We are not commenting on the merits of the case of either of the parties but this much is apparent from a look at the frame and contents of the plaint as also the prayers therein that the present one cannot be said to be such a suit by the unregistered firm which would attract the bar of Section 69(2) of the Act of 1932. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. To put it differently, the relevant principles, when applied to the facts of the present case, leave nothing to doubt that the transaction in question was not the one entered into by the plaintiff firm during the course of its business (i.e., of building construction); and it had been an independent transaction of sale, of the firm\'s share in the suit property, to the contesting defendants. The bar of Section 69(2) is not attracted in relation to the said sale transaction. Moreover, the subject suit cannot be said to be the one for enforcement of right arising from a contract; rather the subject suit is clearly the one where the plaintiff seeks common law remedies with the allegations of fraud and misrepresentation as also of the statutory rights of injunction and declaration in terms of the provisions of the Specific Relief Act, 1963 as also the Transfer of Property Act, 1882 (while alleging want of the sale consideration). Therefore, the bar of Section 69(2) of the Act of 1932 does not apply to the present case.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 21. The upshot of the foregoing discussion is that, for the purpose of Section 69 of the Act of 1932, the present case is governed by the principles laid down in Raptakos Brett &amp; Co. Ltd. (supra), as further exposited in Haldiram Bhujiawala (supra). Hence, the bar of Section 69(2) is not attracted to the suit filed by the appellant. The Trial Court had rightly appreciated the facts of the case and had rightly rejected the baseless application moved by the contesting respondents. The impugned order of the High Court, being not in conformity with the applicable legal principles, is required to be set aside.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">22. Accordingly, this appeal is allowed; the impugned judgment and order dated 15.02.2018, as passed by the High Court of Gujarat in Civil Revision Application No. 241 of 2017 is set aside; and the order dated 07.04.2017 as passed by the 9th Additional Senior Civil Judge, Vadodara in Special Civil Suit No. 333 of 2015 is restored. The Trial Court shall now be expected to proceed with trial of the suit in accordance with law.</font></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a3fb1d92e7451fa532dbc6b514c1f758.jpeg', 'a914e9fb17ce36a977eee56aed4c1f4a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-14', 1, '', '', '2022-03-14 18:51:17', '2022-03-14 16:39:41');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1406, 'vYw9AGpQIb9I1xzez0aqanCiY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Abetment to commit suicide. Merely on allegation of harassment without any positive action of accused proximate to the time of occurrence which compelled the person to commit suicide, conviction is not sustainable. Telangana High Court. ', '<p><b>Manchala Madhusudhan Rao Vs The State of Telangana&nbsp;</b></p><p><b>THE HON’BLE SMT. JUSTICE LALITHA KANNEGANTI </b><br><b>CRIMINAL PETITION NO.9131 OF 2021 </b><br><b>Mr. Apurva M Gokhale advocate for petitioner.&nbsp;</b><br><b>ORDER:- \r\nThis petition is filed under Section 438 of the Code of Criminal \r\nProcedure, 1973 (for short “Cr.P.C.”) seeking pre-arrest bail to the \r\npetitioner/A.4 in the event of his arrest in connection with Crime No.504 \r\nof 2021 of Malkajgiri Police Station, Rachakonda Commissionerate, \r\nregistered for the offences punishable under Sections 306 and 498-A \r\nread with 34 of the Indian Penal Code. </b><br><b>2. The case of the prosecution is that the marriage of the deceased \r\nwas performed with A.1 on 10.07.2015 and it was a love marriage and \r\nafter the marriage, A.1 to A.4 subjected the deceased to harassment. \r\nFurther, the A.2, being father-in-law of the deceased, misbehaved with \r\nthe deceased and unable to bear the same, she committed suicide by \r\nhanging to a ceiling fan on 08.08.2021 and immediately she was shifted \r\nto Malkajgiri Government Hospital and at about 2.10 p.m. she died. \r\nBasing on the complaint of the father of the deceased, police registered \r\nthe present case. </b><br><b>3. Heard Mr.Apurva M. Gokhale, learned counsel for the petitioner, \r\nand learned Assistant Public Prosecutor for the respondent-State. </b><br><b>4. Learned counsel for the petitioner submits that in the entire \r\ncomplaint, there are no specific allegations against the petitioner. All the \r\nallegations are alleged against A.2 and other accused. The petitioner is \r\nLK, J \r\nCrl.P.No.9131 of 2021 \r\n2\r\nnone other than the brother-in-law of the deceased. He submits that as \r\non the date of commission, the petitioner along with other accused went \r\nto the house of the deceased. He submits that in the complaint, \r\nabsolutely there is no allegation that the petitioner has instigated or \r\nabetted the deceased to commit suicide. Further, Section 498-A IPC or \r\n306 IPC has no application as far as the petitioner is concerned. Hence, \r\nthe petitioner’s case may be granted for grant of pre-arrest bail. </b><br><b>5. On the other hand, learned Assistant Public Prosecutor submits \r\nthat A.1 and A.3 were arrested and enlarged on bail. As the \r\ninvestigation is pending, the petitioner is not entitled for pre-arrest bail. </b><br><b>6. Having heard learned counsel on either side, it is appropriate to \r\nhave a look at Section 306 I.P.C. which reads thus: \r\n“306. Abetment of suicide - if any person commits suicide, whoever \r\nabets the commission of such suicide, shall be punished with \r\nimprisonment of either description for a term which may extend to \r\nten years, and shall also be liable to fine.\"\r\n</b><br><b>7. Abetment involves mental process of instigating the person or \r\nintentionally aiding the person for doing of a thing. Without a positive \r\nact on the part of the accused in aiding or instigating or abetting the \r\ndeceased to commit suicide, the said person cannot be compelled to face \r\na trial. (Criminal Application (Apl) No.547 of 2017 the High Court of \r\nJudicature at Bombay, Nagpur Bench, Nagpur). \r\nLK, J \r\nCrl.P.No.9131 of 2021 \r\n3\r\n</b><br><b>8. Before holding an accused guilty of an offence under Section \r\n306 of IPC, the court must scrupulously examine the facts and \r\ncircumstances of the case and also assess the evidence adduced before it \r\nin order to find out whether the cruelty and harassment meted out to the \r\nvictim had left the victim with no other alternative, but to commit \r\nsuicide. It is also to be borne in mind that in cases of alleged abetment of \r\nsuicide, there must be proof of direct or indirect acts of incitement to the \r\ncommission of suicide. Merely on the allegation of harassment without \r\nthere being any positive action proximate to the time of occurrence on \r\nthe part of the accused which led or compelled the person to commit \r\nsuicide, conviction in terms of Section 306 of IPC is not sustainable”. \r\n(M.Mohan vs. State of Tamilnadu1\r\n).\r\n</b><br><b>9. Thus, the said provision makes it clear that to constitute an \r\noffence under Section 306 IPC, the prosecution has to establish: (i) that a \r\nperson committed suicide, and (ii) that such suicide was abetted by the \r\naccused. In other words, an offence under Section 306 would stand only \r\nif there is an \"abetment\" for the commission of the crime. </b><br><b>10. Taking into consideration the fact that there are no specific overt \r\nacts against the petitioner, except that petitioner went to the house of the \r\ndeceased and in view of the judgment of the Supreme Court in M. \r\nMohan supra, wherein it was held that ingredients of Section 107 IPC \r\n \r\n1\r\n 2011 (3) SCC 626 \r\nLK, J \r\nCrl.P.No.9131 of 2021 \r\n4\r\nhave to be proved to constitute offence under Section 306 IPC, this \r\nCourt deems it appropriate to grant bail to the petitioner/A.4. </b><br><b>11. Accordingly, this Criminal Petition is allowed. Petitioner/A.4 \r\nshall surrender before the Station House Officer, Malkajgiri Police \r\nStation, Rachakonda Commissionerate, in connection with Crime \r\nNo.504 of 2021 within one week from today and on such surrender and \r\nexecuting a personal bond for a sum of Rs.20,000/- (Rupees twenty \r\nthousand only) with two sureties for a like sum each to the satisfaction of \r\nthe said Station House Officer, he shall be released on bail. It is made \r\nclear that no further extension of time will be granted. \r\nConsequently, miscellaneous applications pending, if any, shall \r\nstand closed. </b><br><b>LALITHA KANNEGANTI, J \r\nDate :13.12.2021 \r\nmar&nbsp;</b><br></p>', 'a15c7053a899bb2bc651e5de8709099a.JPG', '16e293c39fdd5c0d8c467383da712927.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-11', 1, '', '', '2022-03-12 04:39:20', '2022-03-12 04:41:21'),
(1407, 'REqZzyJeFSOB6NBwxeG4Iyvtc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Agreement to sell does not amount to concluded transfer. Such agreement cannot be construed as void under Section 33 of the Karnataka Co-Operative Societies Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ShivaYogi Bapurao Nadagouda Vs Ganapati Mallappa Shivamata.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular First Appeal 5034 of 2011 decided on 27 November 2020.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Natraj Rangaswamy.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. The plaintiff contended that the Trial Court committed an error in rejecting the relief of specific 9 performance of sale agreement on the ground that it contravened Section 33(iv) of the Karnataka Co- Operative  Societies  Act,  l959.    He  further  contended that there was ample evidence which indicated that the defendant had indeed executed an agreement of sale in question and that the defendant had taken up a diametrically opposite contention to deny the lawful execution of the agreement of sale. He contended that he was ready and willing to perform his part of the contract and the defendant had deliberately avoided his part of the contract.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.    In   the   present   case,   the   defendant   has specifically stated in the agreement that he would obtain a clearance from the bank. It is not comprehendible as to how the defendant could have generated cash to clear the loan unless the plaintiff paid the said amount. If the plaintiff was ready and willing and was eager to purchase the suit property from the defendant, the plaintiff would have taken steps to clear the loan by either releasing part of the sale consideration to the defendant or by himself clearing the loan with the bank. There is no mention as to why the plaintiff did not make any efforts to clear the loan out of the balance sale consideration available with him. In addition, the plaintiff claimed that he was a business man and had an account. During the course of cross- examination  of  PWl,  he  accepted  that  he  had  a  bank account with the bank. He claimed that he was in possession of Rs.3,00,000/- cash  and  that  he  had raised the remaining from his friends. The plaintiff did not plead in the plaint that he had arranged the funds from his friends but casually claimed that he was ready and willing to comply with his obligation. From this, it is certain that the plaintiff did not have the required funds within the time stipulated in the agreement but he had to raise the same from his friends. However,  the  plaintiff did not make any efforts to place any material record in the form of his bank extract to indicate what was the amount available in his account as on the date  of the agreement and subsequent thereto, till the time prescribed for completion of the sale transaction. PW5 who deposed that he had agreed to pay the balance sale consideration, did not prove that he had the funds with 19 him. It is trite that the plaintiff need not display cash to establish his readiness to complete the transaction. However, when the plaintiff filed the suit seeking for the relief of specific performance he should not only plead but also prove that he was always ready and willing to perform his part of the contract as mandated under Section l6(c) of the Specific Relief Act, l963. As held by the Apex Court in Jagjit Singh vs Amarjit  Singh reported in 2018 (9) SCC 805, mere issuance of a  notice would not lead to the conclusion that the plaintiff was ready and willing to perform his part of the contract. As to what is readiness and willingness and the distinction between them was succinctly set out in J.P.Builders v A Ramadas Rao reported  in  2011  (1) SCC 429. It was held that readiness relates to financial capacity, while willingness relates to the conduct of the plaintiff wanting performance. It was held that generally readiness is backed by willingness.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25.<span style=\"white-space:pre\">	</span>It is settled position of law that an agreement of sale does not create any interest in the suit property. All that it creates is a right seek for specific performance. Therefore, the agreement in question did not violate Section 33 of the Karnataka Co-operative Societies Act, 1959 as there was no sale within the meaning of Section 54 of the Transfer of Property Act, 1882. It is relevant to note the provisions of Section 33(1)(iv) which is extracted below: “33(1)(iv) any  alienation  made in contravention of the provisions of clause (iii) shall be void”</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26.<span style=\"white-space:pre\">	</span>It is apposite to refer to a Judgment by a Division Bench of this Court in Shivannappa Sidramappa Prantur Vs. Virupaxappa Allappa Bagi reported in ILR 1980 KAR 702 while considering a case arising out of Sections 79A and 79B of the Karnataka Land Reforms Act, 1961, which is extracted below: <br><i>“An agreement to sell agricultural lands even to a non-agriculturist is not a contract in contravention of the provisions of the Act. Section 83 of the Act provides for an inquiry, by the competent authority  in respect of  any sale made in contravention of Section 80 and to declare such sale as null and void. Therefore, the said section applies only to completed transactions and not to any agreement to sell agricultural lands. Hence, Section 83 is not at all attracted to the facts of the present case. As there is no bar in the Act for entering into an agreement to sell agricultural lands, even in favour of a non-agriculturist the question as to whether the intending purchaser is an agriculturist or not at all a relevant issue for consideration in a suit for specific performance of the agreement to sell agricultural lands.”</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>27.Thus, it is held that there was no concluded transfer by sale between the plaintiff and the defendant notwithstanding the mortgage in favour of the bank by the defendant. In that view of the matter, the findings  of the Trial Court that the Ex.P1 was in violation of Section 33 of the Karnataka Co-operative Societies Act, 1959 is palpably wrong and therefore this finding of the Trial Court is set-aside.  Hence,<span style=\"white-space:pre\">	</span>the<span style=\"white-space:pre\">	</span>appeal<span style=\"white-space:pre\">	</span>filed<span style=\"white-space:pre\">	</span>by<span style=\"white-space:pre\">	</span>the<span style=\"white-space:pre\">	</span>plaintiff<span style=\"white-space:pre\">	</span>is dismissed. The parties to bear their own costs.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fc56e5d91c0f21d8df991a7859ea10cc.jpeg', '2ff74586aafddd50a16cfa2b57c27cff.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-11', 1, '', '', '2022-03-12 05:06:23', '2022-03-12 05:22:44'),
(1409, '6NXJnHYbIafsBk86UWXLF1Imf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Employee’s Compensation Act, 1923. Liability to pay interest on the amount of arrears/compensation shall be from the date of accident and not from the date of the order passed by the Commissioner. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shobha and Others Vs Vithalrao Shinde Sahakari Sakhar Karkhana Ltd. And Others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1860 of 2022 decided on 11 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Judicature at Bombay, Bench at Aurangabad in First Appeal No. 3008 of 2017 by which the High Court has partly allowed the said appeal preferred by the respondents herein and has ordered that the respondents shall be liable to pay interest @ 12 per cent p.a. as leviable under Section 4A(3) of the Employee’s Compensation Act, 1923 (hereinafter referred to as the “Act, 1923”) from the date after expiry of period of one month from 25.01.2017 (the date of the order passed by the Commissioner), the heirs of the deceased – labourer working on sugarcane field have preferred the present appeal. </b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b><br></b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b>2. That the deceased was a sugarcane cutting labourer. He was engaged as a labourer by the Labour Contractor for cutting the sugarcane, which was to be supplied to the sugar factory. While cutting the sugarcane, he died of a snake bite. Neither the sugar factory nor the contractor paid the compensation due and payable under the Act, 1923 and therefore the appellants herein – heirs of the deceased filed a claim petition before the Commissioner Workmen’s Compensation, Beed being W.M.C. No. 39 of 2011 and claimed Rs. 5 lakhs. By the order dated 25.01.2017, the Commissioner allowed the said application and directed the respondent Nos. 1 to 3 herein jointly and severally to pay the compensation amount of Rs.3,06,180/- along with simple interest @ 12% p.a. from the date of accident, i.e., 29.11.2009 till its full realization. The Commissioner also imposed the penalty of 50% on the compensation amount, i.e., Rs. 1,53,090/-.</b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b><br></b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b>2.1 Feeling aggrieved and dissatisfied with the order passed by the Commissioner, Workmen’s Compensation, Beed dated 25.01.2017, respondent Nos. 1 to 3 herein filed the First Appeal No. 3008 of 2017 before the High Court. By the impugned judgment and order the High Court has though dismissed the appeal insofar as the amount of compensation awarded by the Commissioner is concerned, however, has set aside the penalty and modified the interest awarded @ 12% p.a. from the date of incident and has directed that the interest @ 12% p.a. shall become payable from the period after expiry of one month from 25.01.2017.</b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b><br></b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b>2.2 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the high Court restricting the interest @ 12% p.a. from the date after expiry of period of one month from 25.01.2017, the original claimants have preferred the present appeal.</b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b><br></b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b>3. We have heard the learned counsel for the respective parties at length.</b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b><br></b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b>4. While holding that the claimants shall be entitled to interest @ 12% p.a. from the date after expiry of a period of one month from 25.01.2017, the High Court has considered Section 4A(3)(b) only which deals with imposition of penalty. However, the High Court has not noted and/or considered Section 4A(3)(a) of the Act, 1923, which deals with award of interest when the employer is in default. Section 4A reads as under:- “</b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b><i>4A. Compensation to be paid when due and penalty for default.-</i></b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b><i>(1) Compensation under section 4 shall be paid as soon as it falls due.</i></b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b><i>(2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the employee, as the case may be, without prejudice to the right of the employee to make any further claim.</i></b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b><i>(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall-</i></b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b><i>(a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent. per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government by notification in the Official Gazette, on the amount due; and</i></b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b><i>(b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty per cent. of such amount by way of penalty: Provided that an order for the payment of penalty shall not be passed under clause (b) without giving a reasonable opportunity to the employer to show cause why it should not be passed.” Explanation.- For the purposes of this sub-section, \"scheduled bank\" means a bank for the time being included in the Second Schedule to the Reserve Bank of India Act, 1934 (2 of 1934). </i></b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><b style=\"font-size: 14px; font-family: Helvetica;\"><i>(3A) The interest and the penalty payable under sub-section (3) shall be paid to the employee or his dependant, as the case may be.”</i></b><br></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b><br></b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b>4.1 Thus, from Section 4A of the Act, 1923 compensation under Section 4 shall be paid as soon as it falls due. It can be seen that the liability to pay the interest on the amount of compensation due and payable would be under Section 4A(3)(a) and the penalty would be leviable under Section 4A(3)(b). As per Section 4A(3)(a), the employer shall pay, in addition to the amount of the arrears, simple interest thereon @ 12% p.a. or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified on the amount due. As per Section 4A(1) compensation under section 4 shall be paid as soon as it falls due. Therefore, on the death of the employee/deceased immediately, the amount of compensation can be said to be falling due. Therefore, the liability to pay the compensation would arise immediately on the death of the deceased. Even as per Section 4A(2), in cases, where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the employee, as the case may be, without prejudice to the right of the employee to make any further claim. Therefore, the liability to pay the compensation would arise from the date on which the deceased died for which he is entitled to the compensation and therefore, the liability to pay the interest on the amount of arrears/compensation shall be from the date of accident and not from the date of the order passed by the Commissioner. As per Section 4A(3)(b), if the Commissioner is satisfied that there is no justification for the delay, it can direct the employer, in addition to the amount of the arrears and interest thereon, to pay a further sum not exceeding 50% of such amount by way of penalty. Thus, provision for interest and provision for penalty are different. As observed herein above, the provision for levy of interest would be under Section 4A(3)(a) and the provision for levy of penalty would be under Section 4A(3)(b). While directing the employer to pay the interest from the date of the order passed by the Commissioner, the High Court has not at all considered Section 4A(3)(a) and has considered Section 4A(3)(b) only, which is the penalty provision.</b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b><br></b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b> 5. Under the circumstances, the impugned judgment and order passed by the High Court directing the employee to pay the interest on the amount of compensation as leviable under Section 4A(3)(a) from the date of the order passed by the Commissioner, i.e., 25.01.2017 is unsustainable. </b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b><br></b></span></font></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal;\"><font face=\"Helvetica\"><span style=\"font-size: 14px;\"><b>6. In view of the above and for the reasons stated above, the present appeal succeeds. The impugned judgment and order passed by the High Court insofar as awarding the interest @ 12% p.a. after the period of expiry of one month from 25.01.2017, is hereby quashed and set aside and it is observed and held that the appellants herein – original claimants shall be entitled to the interest @ 12% p.a. on the amount of compensation as awarded by the Commissioner from the date of the incident i.e., 29.11.2009. Present appeal is allowed accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.</b></span></font><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e79d716dabc12e8346baac6b7b8c5a2f.jpeg', '71b6b90d9cf84e08af213a451101225f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-12', 1, '', '', '2022-03-12 20:17:48', '2022-03-13 06:49:44'),
(1408, 'GomnXx7OLyt9qwnhKbwDqugds', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Right to Information Act, 2005. There is no bar to furnish \'B\' Report under RTI Act once the investigation is completed. Bar for grant of information applies only during investigation. Karnataka High Court. ', '<p><b>The Public Information Office and another vs Malleshappa M Chikkeri.&nbsp;<br>Writ Petition 18599 of 2021 decided on 12 October 2021<br>Justice N.S. Sanjay Gowda&nbsp;&nbsp;</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">By the impugned order, the State Information Commissioner has directed the petitioners to hand-over and furnish the B-Report and the enclosures, which were sought for by respondent No.1.</b><br></p><p><b>2.The 1st respondent\'s son is stated to have ended his life by jumping out from the window and it was stated by the Authorities that he had died due to over drinking. Respondent No.1 had sought for information regarding the B-Report that was filed after investigation, contending that the stigma was attached to his family by furnishing of the B-Report.</b></p><p><b>3.The Commissioner has noticed that there was no prohibition to give information sought for since the investigation was already completed. The Commissioner has noticed that only in the event the matter was under investigation, there was a bar for grant of the information regarding the investigation.</b></p><p><b>4.In my view, the Commissioner was absolutely justified in directing furnishing of B-Report and its enclosures as sought for by respondent No.1 especially when the investigation in the matter had been concluded.</b></p><p><b>5.The contention of the learned counsel for the petitioners that it was open for respondent No.1 to secure B-Report and enclosures from the Magistrate cannot be a ground to deny the information sought for under RTI. Therefore, no grounds are made out to entertain this petition.</b></p><p><b>Accordingly, the petition is dismissed.</b></p><p><b><br></b></p><p><br></p>', 'bb7c1dd870f48d95c10f9fa1e443e75b.jpg', '1e2e7dc9d63a7d1f4cd9be92be57e45f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-11', 1, '', '', '2022-03-12 05:15:10', '2022-03-12 05:15:10'),
(1410, 'uMP4Xrt28mePnSQ5SrYwood8G', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Store information in electronic form and furnish upon receipt of application under the RTI Act at the earliest\'\'. Karnataka High Court directs Government of Karnataka ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>C K Sharada Vs Basayya Irayya Dinnimath<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 61277 of 2012 decided on 23 October 2021.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. Learned counsel for respondent No.1 submit that respondent No.1 has expired and that since no relief has sought for against respondent No.1, there would be no requirement of bringing the legal representatives of respondent No.1 on record. His submission is placed on record. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The learned HCGP accepts notice for respondent Nos.2, 3 and 4. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.The petitioner is before this Court seeking for the following reliefs:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i. Quash the impugned order dated 02.01.2012 passed in K.I.C. 12031 PTN 2010 by the learned State Information Commissioner, Bangalore copy annexed as per Annexure-A, to the writ petition as the same is highly perverse and illegal.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ii. Pass any other orders and grant any other reliefs as this Hon’ble Court deems fit, just and necessary under the facts and circumstances of the case, in the interest of justice and equity. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.Respondent No.1 had filed an application in terms of Form-A under Section 6(1) of the Right to Information Act, 2005 (RTI Act, 2005) seeking for various information as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>I. How many APL cards are there and their names and card number.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>II. How many BPL cards are there and their names and card number.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>III. How many Antodaya Cards are there and their names and card number.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>IV. How many Annapurna cards are there and their names and card number.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>V. What is the quantity of rice, wheat, sugar supplied to his village in the month of July, August, September, it means detailed information to be supplied regarding distribution made in the month of July, August and September. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The said application was received by the petitioner on 09.10.2009. It is contended that immediately thereafter the petitioner on 15.10.2009 had written a letter to the concerned ration shop owner requesting for information as sought for by the respondent, which was provided by the said ration shop owner and thereafter on 21.10.2009 the petitioner by way of registered letter dispatched the information to the respondent. In the meanwhile, respondent No.1 had filed an appeal before the Karnataka Information Commission. During the pendency of the said matter, the petitioner supplied further information as regards the stock and sale register copies for the month of July, August and September-2009 on 28.03.2011.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. It is taking into account the said fact, respondent No.5-State Information Commissioner has held that there was delay in furnishing of the information requested for by the respondent and therefore imposed penalty of Rs.5000/- in terms of Section 20 of the RTI Act, 2005. It is aggrieved by the same, the petitioner is before this Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 7. Sri.Deepak S Kulkarni, learned counsel for the petitioner would submit that the petitioner had already furnished the information on 21.10.2009, therefore there was no delay on the part of the petitioner in supplying the details. Respondent No.5 therefore ought not to have imposed penalty on the petitioner.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. The information requested by respondent No.1 has been reproduced earlier. One of the information requested was the quantity of rice, wheat and sugar supplied in the month of July, August and September- 2009 that would necessarily entail the stock and sale statement of that particular ration shop.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. Admittedly, in the information supplied on 15.10.2009 the stock and sale information had not been furnished and it was only furnished on 28.03.2011 after the matter had reached the Karnataka Information Commission. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. When an application under the RTI Act, 2005 is filed, it is required that all the information requested for is furnished. Piecemeal furnishing of information would not satisfy the requirement of the RTI Act, 2005. Hence, I am of the considered opinion that the finding of respondent No.5 is proper and correct.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. This Court has come across several writ petitions of the present kind, where the dates of application and date of furnishing of information is always brought into question. It is therefore required that the State make necessary arrangements for the data to be web hosted as regards date on which any application is received by any information officer, the date on which the same is processed and the date on which the information is furnished. The said information could also be furnished electronically by way of E-mail to the applicant, if so required.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. In many cases, it is also seen that the Information Officer writes to a third parties seeking for information and thereafter takes umbrage under the fact that the third party has delayed in furnishing the information. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. Most of the time, it is seen that the Public Information Officer was required to have this information within his or her possession and not seek for this information from third parties. In the present case the petitioner ought to have had the details about how many APL cards had been issued to each and every establishment coming under her jurisdiction, how many Antodaya cards have been issued within her jurisdiction and how many Annapurana cards have been issued under her jurisdiction. As regards the quantity of rice, wheat and sugar supplied, since the supply is made by the Food and Civil Supplies Department, of which the petitioner is the Public Information Officer, this information ought to have been available with the Food and Civil Supplies Department to have enabled the petitioner to supply the information immediately.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. In view thereof, necessary directions are issued to all the Authorities to have all the information stored within their Offices in electronic format so that the same may be communicated to any applicant immediately on an application being filed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. The learned HCGP is directed to bring the above to the notice of the Chief Secretary, State of Karnataka and in this particular case, the Secretary, Revenue Department and Director, Food and Civil Supplies Department. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">16. The petition is dismissed.</font></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0e61c9c7502c4523fb9310c9481ee8ed.jpeg', '3174b7227129e76af65128f940ee5f00.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-12', 1, '', '', '2022-03-12 20:31:03', '2022-03-13 06:59:21');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2763, '6XtyqPT2cwT5UCvW3Txmlp9ZR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicle Case. Claimant being intoxicated at the time of accident cannot be a ground to deny compensation. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Murugan T Vs P. Jayagovinda Bhat and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Miscellaneous First Appeal 554 of 2020 decided on 28 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.B. Prabhakara Sastry.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The present appellant was the claimant in M.V.C.No.1224/2017, before the I Additional District Judge and Motor Accident Claims Tribunal-II, Mangaluru (D.K.), (hereinafter for brevity referred to as \"the Tribunal\") whose claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter for brevity referred to as “the M.V. Act”) for compensation from the respondents herein came to be dismissed as devoid of merit by the Tribunal vide its impugned judgment and award dated 05-07-2019. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">Aggrieved by the same, the claimant before the Tribunal is before this Court through this appeal.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The summary of the case of the claimant in the Tribunal was that, on the date 19-01-2017, at about 9:00 a.m., when he was standing on the side of the road near Kankanady Bus Stand at Mangaluru, the driver of a Bus bearing registration No.KA-19/C-6864, driving the said Bus in high speed and in a rash and negligent manner, took the Bus in such a way so that its back wheel ran over the left foot of the claimant, inflicting grievous injures upon him. Immediately, the claimant was taken to the Government Wenlock Hospital, Mangalore, where he was treated as in-patient for a week and thereafter getting himself discharged, he went to Erode at Tamil Nadu and was treated as an in-patient in a local Hospital there. Stating that at the time of accident, he was working as a Coolie and earning a sum of `10,000/- per month and was aged 45 years, however, due to the accident, he has lost his future income and also incurred huge medical expenses, the claimant has claimed a sum of `3,00,000/- as compensation from the respondents No.1 and 2, holding them as liable to pay him the compensation in their capacity as the owner and insurer of the alleged offending Bus, respectively. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>The Respondent No.1 (owner of the offending Bus) failed to appear before the Tribunal, however, the respondent No.2 (insurer of the offending Bus) appeared before the Tribunal and filed its Written Statement, wherein it has not only denied all the averments made by the appellant (claimant before the Tribunal), but also contended that it learnt that the claimant was trying to cross the Road without observing the traffic rules and thus was himself responsible for the alleged accident. However, the second respondent (insurer) admitted that the alleged offending motor vehicle Bus was insured with it. It also took a specific contention that, as on the date of the accident, the first respondent was not a policy holder.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space: pre;\">	</span>At the outset, it has to be observed that, the only respondent (insurer) before the Tribunal in the matter which has filed its Written Statement, has not taken the contention of the alleged intoxication of the complainant(claimant) at the time of the alleged road traffic accident, as such, what was not pleaded by the parties, the Tribunal has attempted to notice on its own and base its entire reasoning for rejecting the claim petition of the claimant. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Secondly, no doubt, a perusal of the Wound Certificate at Ex.P-3 mentions the presence of \'smell of alcohol\'. A mentioning to the same effect is also there in the case sheet of the Wenlock Hospital which is marked as Ex.C-1. The said observation, in the Wound Certificate, except stating that there was smell of alcohol, no where mentions as to whether the claimant who was a patient before the examining Doctor was intoxicated with alcohol. It is not even shown as to whether the alleged smell of the alcohol was coming from the mouth of the alleged injured person. As such, the source of the smell of the alcohol whether was from the body of the injured or from the dress worn by him, has not been mentioned by the Doctor. However, the Tribunal assumed itself that mere mentioning of the \'smell of alcohol\' as the conclusive proof of the claimant/patient consuming alcohol at the time of the alleged road traffic accident. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Thirdly, assuming for a moment that, the claimant who claims to be the injured in the road traffic accident in question, was intoxicated or smelling with alcohol, but the same cannot be an excuse for the driver of the offending Bus for causing the road traffic accident, causing injuries to the injured person. Even according to the Tribunal, it is not its finding that, by consuming alcohol, the claimant had fallen unconscious on the road and that he had inadvertently moved his feet and put his left foot beneath the back wheel of the offending Bus. On the contrary, the Tribunal itself has observed that, he was standing on the side of the road just next to the foot path. Thus, even after taking that the claimant might have consumed liquor, still, he was in such a position of controlling himself and was able to stand properly on his legs. As such, any contribution on the part of the claimant in the road traffic accident also cannot be imagined or arrived at. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Fourthly, irrespective of the fact as to whether any person or animal is behaving abnormally or improperly or whether a person is intoxicated with liquor or not, it is the primary duty of the driver of any Motor Vehicle to drive the vehicle with utmost care and caution, that too, particularly, in a public place like a Bus Stand, which in the instant case is Kankanady Bus Stand at Mangaluru, which is said to be one of the busiest Bus Stands in the region where there is heavy movement of vehicles and large number of public. Any driver of a Motor Vehicle, including a passenger vehicle like the Bus in the instant case, is required to be more cautious and careful while driving a Bus. As such, even for the sake of argument, if it is taken that the claimant was intoxicated with alcohol, it does not give any permission for the driver to run the Bus on the foot of that person. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">Lastly, one of the reasons assigned by the Tribunal is also that, as it is the back wheel of the Bus that is said to have run over the foot of the claimant, no negligence can be attributed on the part of the driver of the Bus. The said reason assigned by the Tribunal is also not acceptable for the reason that, a driver, while driving the vehicle, would not consider the vehicle into two parts, as the front part with front wheel and the back part with the back wheel, which are under his control. When he drives the vehicle, the whole vehicle is required to be under his control and that he should drive the entire vehicle in such a care and caution that it shall not lead to any untoward incident like the road traffic accident as in the instant case. It is such a care and caution that is expected of a driver of any Motor vehicle. Therefore, no exception can be given that the driver cannot be held as negligent when the back wheel of a heavy passenger vehicle is said to have passed on the leg of a pedestrian. In the instant case, it is nobody\'s case that the pedestrian (claimant) was not noticed or observed by the driver and that all of a sudden he came running and fell beneath the back wheel of the Bus.   On the other hand, the case of the claimant, from the beginning, was that, he was standing on the side of a Road. Thus, a standing person was taken to be seen by the driver who was driving a passenger Bus in the premises of a Bus Stand, as such, he should have been more vigilant and cautious in driving the said Bus. Therefore, the reasoning given by the Tribunal that there was no negligence on the part of the driver of the alleged offending Bus is not acceptable.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space: pre;\">	</span>In addition to the above, the contention taken up by the appellant in the memorandum of appeal that the driver of the offending Bus was charge sheeted for the offences punishable under Sections 279 and 338 of the IPC is corroborated with the documentary evidence at Ex.P-7 which is a copy of the charge sheet. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">Further, the contention of the appellant that the driver of the said vehicle pleaded guilty for the alleged offences and was sentenced accordingly is also corroborated by the certified copy of the order sheet in C.C.No.1559/2017 which is marked at Ex.P-8. Thus, the very pleading of guilt by none else than the driver of the offending Bus himself would go to show that, he has pleaded guilty for the offences punishable under Sections 279 and 338 of the IPC. This fact also was not taken into consideration by the Tribunal. As such, the road traffic accident, as alleged in the claim petition by the claimant, is not only proved but also proved that the said road traffic accident has occurred solely due to the rash and negligent driving by the driver of the offending Bus bearing registration No.KA-19/C-6864.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space: pre;\">	</span>Since the Tribunal answering the issue No.1 in the negative, has not answered issue Nos.2 and 3 with reasons and in view of the fact that the said finding of the Tribunal on issue No.1 also is now proved to be erroneous and the said issue requires to be answered in the affirmative, I am of the view that the matter requires to be remanded to the Tribunal for its answering to issue Nos.2 and 3. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">Needless to say that in the process, the Tribunal would also consider one of the contentions taken up by the respondent No.2 (insurer) before it in paragraph 12 of its Written Statement that, as on the date of the road traffic accident in question, the first respondent (owner of the offending Bus) was not a policy holder.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> [i]<span style=\"white-space: pre;\">	</span>The appeal filed by appellant (claimant) stands allowed in part. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3d31e012bc306ba5a6bb63dcf3d37599.JPG', '94f074c032e2d7e8f60a0e533ff84e6f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-07', 1, '', '', '2023-03-06 13:13:50', '2023-03-07 10:57:50'),
(1412, '7zpLv9gIMVPnVrLyvK3yVWqWo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Maternity Benefit Act, 1961. Ad hoc employee is entitled to maternity benefit for a period that spills beyond the tenure of the contract. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Baba Saheb Ambedkar Hospital Govt. of NCT of Delhi and Others Vs. Krathi Mehrotra<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 1278 of 2020 decided on 11 March 13, 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Rajiv Shakdher and Justice Talwant Singh.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. This writ petition is directed&nbsp; against&nbsp; the&nbsp; order&nbsp; dated&nbsp; 03.05.2019,&nbsp; passed by the Central Administrative Tribunal (in short, the “Tribunal”) in O.A.No.508/2018.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">2. The narrow but important issue which arises for consideration in this writ petition is: whether an ad hoc employee is entitled to maternity benefit for a period that spills beyond the tenure of the contract?&nbsp;</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 3. This issue arises in the backdrop of the following broad facts :</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.1. In and about 22.03.2016, the respondent was offered an appointment, albeit, on an ad hoc basis as Senior Resident in the Department of Dermatology in the petitioner-hospital. The offer made to the respondent provided that the appointment would be for a period of 45/89 days or till a regular incumbent joins the post, whichever is earlier. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.2. Based on the offer made, the respondent joined the petitioner-hospital on 05.04.2016. A formal office order to this effect was taken out by the petitioner-hospital on 24.05.2016. The first span of 89 days, thus, stretched between 05.04.2016 and 02.07.2016. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.3. Thereafter the respondent’s tenure was extended four times. Notably, each time the respondent’s tenure lasted 89 days, and after a short break of one day, the contract was renewed for another 89 days. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.4. The respondent’s last tenure culminated on 27.06.2017. The record, however, shows that on 17.04.2017, the respondent applied for emergency maternity leave as her pregnancy had become complicated. Via this communication, the petitioner averred that she was suffering from antepartum haemorrhage and was advised bed rest by her gynaecologist. The apprehension expressed in this letter was that the respondent may be required to undergo an emergent caesarean section procedure, to facilitate childbirth. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.5. In response to this request, the petitioner-hospital passed an office order dated 23.05.2017, whereby the petitioner-hospital, instead of granting maternity leave, terminated the services of the petitioner, albeit retrospectively i.e., with effect from 24.04.2017. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Aggrieved by the order dated 23.05.2017 passed by the petitioner-hospital, the respondent filed an action in the Tribunal. This action was numbered as O.A.No.1956/2017 and was disposed of by the Tribunal on 31.05.2017. In this O.A., the respondent had raised several grievances including the fact that she had not been granted maternity leave and had not been paid salary for April 2017. Besides this, the respondent had also assailed the order dated 23.05.2017 whereby her services had been brought to an end w.e.f. 24.04.2017. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.1. The Tribunal, after adverting, broadly, to the aforesaid grievances disposed of the aforementioned O.A. with a direction that the respondent will make a “comprehensive representation” to the petitioner-hospital; and upon such a representation being made, the petitioner-hospital would dispose of the same by passing a speaking order. Furthermore, the petitioner-hospital was prodded to look into the matter “sympathetically”. Succour was given by the Tribunal- inasmuch as a specific direction was issued to the petitioner-hospital and Government of NCT of Delhi (GNCTD) i.e., petitioner no.2, to release the unpaid salary of the respondent. For this purpose, four weeks were granted to the petitioner-hospital. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.2. It appears that, pursuant to the directions of the Tribunal, the respondent preferred a representation on 01.06.2017; an aspect which is not refuted by the petitioner-hospital. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.3. The record shows that the respondent also sought the intervention of the National Commission for Women (NCW); besides, as noticed above, making a representation to the petitioner-hospital. It appears that, because the matter was escalated by respondent and hearing was held before the Member, NCW on 29.06.2017, the petitioner-hospital “revalidated” its earlier order i.e., order dated 03.04.2017 [whereby the respondent had been accorded a fresh tenure of 89 days to work as Senior Resident in the Department of Dermatology] which, in the normal course, was to end on 27.06.2017. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.4. Given the turn of events, the petitioner-hospital decided to grant maternity leave to the respondent till 27.06.2017; although, earlier via office order dated 23.05.2017, the respondent’s tenure was truncated and it was, abruptly, brought to an end on 24.04.2017, when she had applied for maternity leave on 17.04.2017. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.5 This position emerges upon a perusal of the communication dated 29.06.2017, addressed by the Medical Superintendent of the petitioner-hospital to the Member, NCW. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.6 The record also shows that in the interregnum, the respondent had filed a representation dated 24.07.2017, for being granted maternity leave for 26 weeks. This representation was rejected by the petitioner-hospital, via order dated 03.08.2017, apparently, on account of the fact that it had already taken a position to the contrary in its communication dated 29.06.2017, addressed to the Member, NCW. In sum, the reasons furnished by the petitioner-hospital as to why the maternity benefit was declined to the respondent for the entire period of 26 weeks are the following: (i) The respondent’s ad-hoc tenure i.e., the last extension expired on 27.06.2017, and, therefore, the maternity leave could not be granted beyond the said date. (ii) Although the respondent had been shortlisted for recruitment for appointment to the (regular) post of Senior Resident, along with other candidates, she had not appeared in the interview, which was held on 01.06.2017. (iia) In this context, it is relevant to note that in and about 30.04.2017, the petitioner-hospital had published an advertisement for recruiting Senior Resident Doctors in the Department of Dermatology against sanctioned posts. The petitioner-hospital claims that after interviews were conducted and the results were declared, offers of appointment to the selected candidates were made on 15.06.2017. The selected candidates, apparently, joined the Department of Dermatology on 21.06.2017. (iib) We may also note, at this stage, that the expected date of delivery of the respondent was 02/06.06.2017. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.7. Insofar as the respondent was concerned, she once again took up cudgels and approached the Tribunal with a fresh action. Via this O.A., which was numbered as O.A.No.508/2018, the respondent sought the following substantive reliefs: “(a) Revoke the termination letter dated 23.05.2017 and thus reinstating the applicant at the post of Senior Resident. (b) Extend the maternity benefits to the applicant for a period of 26 weeks from the date of her application 17.04.2017.” </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.8. As noticed at the outset, the Tribunal, partially allowed the aforesaid O.A., and, consequently, issued the following directions qua the petitioner-hospital: “(a) the respondents shall extend the benefit of the maternity leave to the applicant in terms of Section 5(2) of the Maternity Benefit Act, 1961 within four weeks from today. (b) respondents shall also issue a certificate to the applicant indicating the length of service rendered by her in the hospital.” </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.9. This time around, the petitioner-hospital was aggrieved, and, therefore, approached this Court by way of the instant writ petition. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The writ petition was listed before the Court for the first time on 04.02.2020. On that date, the matter was directed to be re-listed on 12.02.2020. On 12.02.2020, notice was issued in the writ petition and, in the interregnum, the operation of the impugned order [i.e., the order dated 03.05.2019] passed by the Tribunal was stayed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.1. On the date which followed i.e., 29.06.2020, the Court disposed of an application i.e., CM No.13561/2020 filed by the respondent for issuance of an experience certificate. The Court directed the petitioner-hospital to issue an experience certificate to the respondent spanning between 05.04.2016 and 17.04.2017; perhaps bearing in mind the fact that she had discharged her duties as a doctor up until that date notwithstanding the relief sought in the application pegged the end date to 27.06.2017. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.2. Thereafter, due to the intercession of Covid-19, the first substantive hearing was held on 28.07.2021. Since it was unclear as to whether or not the respondent had received the maternity benefits between 01.06.2017 and 27.06.2017, the petitioner-hospital was requested to obtain instructions at the hearing held on 05.08.2021. This position attained clarity at the hearing held on 08.09.2021. The respondent informed the court that she had received maternity benefits for the period spanning between 01.06.2017 and 27.06.2017. It was further clarified that the respondent, thus, claimed maternity benefit for the remaining period i.e., between 28.06.2017 and 16.10.2017.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 5.3. We also notice that the terminal date which the respondent’s counsel provided i.e., 16.10.2017 was relatable to Section 5 of the Maternity Benefit Act, 1961 (in short, the “1961 Act”), as the twenty-six [26] weeks’ maternity benefit in the respondent’s case would end on that date. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.4. Ultimately, the matter was reserved for judgment on 11.10.2021. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. It is in this backdrop that the arguments were advanced on behalf of the petitioner-hospital by Ms Mini Pushkarna, while on behalf of the respondent, submissions were made by Ms Mansi Bajaj. Submissions on behalf of the petitioner-hospital: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. Ms Pushkarna, broadly, made the following assertions : (i) That the Tribunal had erred in directing the petitioner-hospital to grant maternity leave to the respondent for the entire 26 weeks, without having regard to the fact that her tenure had culminated on 27.06.2017. (ii) The respondent’s tenure had been brought to an end in terms of the contract, and upon a recruitment process being triggered, appointments on regular basis were made by the petitioner-hospital in and about June 2017. (iii) If the respondent was granted maternity leave for the entire 26 weeks, it would, in effect, result in extending her tenure. This would place an immense financial burden upon the petitioner-hospital. (iv) The office memorandum dated 14.03.2018 issued by the Health and Family Welfare Department of GNCTD, while providing for the grant of maternity leave to ad hoc employees, carefully confined the benefit to the period for which an ad hoc employee has been appointed. (v) In support of her submissions, Ms Pushkarna placed reliance upon the following judgments of this Court:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. Dr Deepasha Garg v. Govind Bhallabh Pant Institute of Postgraduate Medical Education and Research and Others, passed in W.P (C) 13231/2018 decided on 10.12.2018</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Dr Kavita Yadav v. The Secretary, Ministry of Health and Family Welfare Department &amp; Ors., passed in W.P (C) 8884/2019, decided on 19.08.2019 3. Dr Artiben R. Thakkar v. Delhi Pharmaceuticals Science &amp; Research University, 2019 SCC Online Del 10520, decided on 27.09.2019</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Govt. of NCT Delhi and Anr. v. Smt. Dr Priyanka Mittal, passed in in W.P (C) 9092/2019, decided on 23.01.2020 (vi) Besides the aforementioned judgements, reliance was also placed on the judgement of the Jharkhand High Court rendered in Priti Kumar Gope v. The Director, Punjab National Bank &amp; Ors, passed in W.P (C) 1345/2018, decided on 10.01.2019 Submissions on behalf of the respondent: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. Ms Bajaj, on the other hand, brought to fore the fact that when the respondent applied for leave on 17.04.2017, her tenure, which in the normal course would have ended on 27.06.2017, was abruptly brought to an end, via order dated 23.05.2017 and that too retrospectively i.e., with effect from 24.04.2017 </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.1. It was contended that this step of the petitioner-hospital was contrary to the provisions of Section 12 of the 1961 Act, as amended in 2017. The submission was that the respondent was entitled to maternity benefit till 16.10.2017, in terms of Section 5 of the 1961 Act. In other words, if a woman employee worked for a minimum of eighty [80] days in the twelve [12] months preceding the date of her expected delivery, she should be granted maternity leave for the entire 26 weeks. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.2. To buttress her submissions, Ms Bajaj also alluded to Articles 15 (3) and 42 of the Constitution. It was emphasised that the only reason the respondent was denied an extension of tenure was, on account of the fact that she had applied for maternity leave on 17.04.2017. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.4. It was stressed that if the petitioner-hospital’s stand is to be accepted, then no ad hoc employee would be able to avail maternity leave for the entire 26 weeks, as provided in Section 5 of the 1961 Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.5. In support of her submissions, Ms Bajaj has relied upon the following judgments: (i) Manisha Priyadarshini v. Aurobindo College-Evening &amp; Ors., passed in LPA No.595/2019, decided on 01.05.2020. (ii) Bharti Gupta v. Rail India Technical and Economical Services Ltd., 2005 (84) DRJ 53, decided on 09.08.2005. Analysis and reasons</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. Having heard the learned counsel for the parties, we are of the view that the following facts have emerged qua which there is no dispute :</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) The petitioner-hospital had employed the respondent as Senior Resident Doctor in the Department of Dermatology, albeit, on an ad-hoc basis.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>18.2. Be that as it may, in our opinion, this aspect has no relevance as far as\r\nthe grant of the maternity benefit is concerned. The respondent is not\r\nseeking a direction for the execution of a fresh contract. The only relief that\r\nthe respondent seeks is the grant of maternity benefits under the 1961 Act.\r\nThe benefit granted to the respondent under Section 5 of the 1961 Act\r\nshould have a full play, in our view, once the prerequisites contained therein\r\nare fulfilled by the claimant i.e., the woman-employee. The 1961Act is a\r\nsocial legislation that should be worked in a manner that progresses not only\r\nthe best interest of the women-employee but also of the child, both at the\r\npre-natal and post-natal stage. [See Article 24(2)(d) of the United Nations&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Convention on the Rights of the Child (CRC)12\r\n.] Without financial\r\nwherewithal, the interest of women-employee and her child is likely to be\r\nseverely impacted.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Conclusion:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>19. Thus, for the foregoing reasons, we are not inclined to interfere with\r\nthe impugned order passed by the Tribunal.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>20. The writ petition is, accordingly, dismissed. Consequently, pending\r\napplication shall stand closed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">21. Parties will bear their own costs</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p>', 'd3906ac6b2aa500a22765dfcb9f49cac.png', 'c8caf275b89ebb6d3c543befbacada32.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-13', 1, '', '', '2022-03-13 18:50:25', '2022-03-13 13:40:28');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1413, 'BAjhV9pSxjWf61V5opTwCxfJD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Punjab reservation laws. De-­reservation of reserved vacancy to be filled up by direct recruitment or by promotion cannot be done by the appointing authority. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: \" segoe=\"\" ui\",=\"\" sans-serif;=\"\" background-image:=\"\" initial;=\"\" background-position:=\"\" background-size:=\"\" background-repeat:=\"\" background-attachment:=\"\" background-origin:=\"\" background-clip:=\"\" initial;\"=\"\">Mandeep Kumar and Others Vs U.T. Chandhigarh and Others.</span><span style=\"font-family: \" times=\"\" new=\"\" roman\",=\"\" serif;\"=\"\"><o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Civil Appeal 1908 of 2022 decided on 9 March 2022.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Justice Indra Banerjee and Justice J.K Maheshwari.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The instant appeal arises out of the judgment dated 17.01.2020, passed by the High Court of Punjab & Haryana in   Civil   Writ   Petition   No. 24383 of 2016, whereby the aforesaid   Writ   Petition   was   dismissed   on   the   basis   of statement made by learned Additional Advocate General of the State of Punjab  regarding the  decision  taken by the authorities to re­advertise the unfilled posts of Elementary Trained Teachers (in short “ETT”) afresh and to fill up it in accordance with law. Being aggrieved by the said judgment, the appellants have preferred the instant appeal. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. The controversy in nutshell brought by way of suo moto PIL registered by the High Court of Punjab & Haryana pertained to inaction of the State of Punjab in filling up of vacancies of ETT, which were advertised vide two separate advertisements dated 08.11.2015 and 30.07.2016. In the abovesaid advertisements, total of 4500 and 2005 vacancies of ETT were notified under various categories inclusive of SC/ST, OBC, freedom fighter, handicapped etc. respectively. After entertaining the Public Interest Litigation and as per the interim directions of the High Court, the posts of ETT had been filled up as per merit and category wise. But due to not having selected eligible candidates of SC/ST category those posts remained vacant. Now, it is the grievance of the appellants that the unfilled posts of SC/ST category   may   be   filled   from   the   eligible   candidates   of Backward Class category, directing interchangeability of the said vacant posts. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. The facts as put forth in appeal, the appellants have applied for  the post of  ETT in the category of  Backward Class. Pursuant to the advertisement, selection process was carried   out   and appointment letters were issued to  the selected candidates. All the  notified  posts of Backward Classes have been filled up merit wise after the direction of the High Court. In the said process of selection, 595 posts of SC/ST   category   remained   unfilled   on   account   of   “nonavailability” of eligible candidates in the said category. The appellants herein are claiming appointment against  those vacant posts of SC/ST category on the anvil of policy instructions regarding “Reservations of vacancies in State Government   Services   of   members   of Backward Classes”, issued by State of Punjab vide letter no. “1945­WG­54­ 17246, dated 17.03.1954 (hereinafter to be referred to as Policy letter No.17246). The aforesaid  Policy letter  provide for   “de­reservation/   interchangeability”  of   the   post   from SC/ST  category to OBC category or vis­à­vis in a contingency of non­availability of eligible candidates belongs to SC/ST or OBC, as the case may be. The appellants submitted various representations to the concerned authorities on the basis of the said Policy letter for interchangeability of the posts of SC/ST into OBC category, which  as per appellants was not considered in a right perspective. Now by order impugned as per the made by the State Government those posts are being re­ advertised, without redressing their grievance.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. Mr. P.S. Patwalia, learned senior counsel for the appellants contends that against un­filled posts of SC/ST category in terms of instructions issued vide Policy letter  No. 17246 interchangeability of the post from SC/ST  to  OBC category is permissible. Sub­section 2 of Section 7 of The Punjab Schedule Castes and Backward Classes (Reservation in Service) Act, 2006 (for short “the 2006 Act”) does not restrain the State Government to fill up the un­ filled vacant post of SC/ST category by OBC category by interchanging the same. The respondent­State despite an order of the High Court has rejected the claim, relying upon the instructions issued vide letter No. 1945­WG­54/17248 dated 17.3.1954 (hereinafter to be referred to as “Policy  letter No. 17248”) on 2.8.2019, though it  is not applicable  to the subject in context. This fact was brought to the notice of the Court, however an order was passed on 2.12.2020, directing the respondent to pass order, strictly  in accordance with the penultimate paragraph of the order dated 07.09.2018 of the High Court within four weeks. The State Government again vide order dated 11.12.2020, rejected the claim mentioning the incorrect fact of withdrawal of instructions of the Policy letter No. 17246. In fact, the said instructions were restored vide letter No. 1346­SW1­74/11491 dated June 20, 1974 and is  in  existence. Thus, the State Government sit tight over the matter ignoring their own policies and making attempt to rely the instructions, having no application in the issue.  After passing the impugned order dated 17.1.2020 and during pendency of the present appeal, fresh advertisement to fill up the Posts of ETT has been issued without ventilating the grievance of the appellants regarding interchangeability of the posts and to consider the appellants for appointment on the above said Posts. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. Per contra, Mr. Karan Bharihoke, learned counsel representing the respondent Nos. 2 to 4 contends that as  per Section 7 of 2006 Act, de­reservation is not permissible. In terms of the provisions of the 2006 Act and the instructions issued by the State Government, the claim of the appellants has been reconsidered by the Department of Social Justice, Empowerment and Minority, and vide reply dated 5.1.2021 rejected the claim of the appellants. It is urged that by issuing the fresh advertisement, the process   to fill up of the vacant posts of ETT in the State has started, however the High Court has not committed any error while passing the order impugned. The State Government in compliance to the order of the High Court is duty bound to fill up the vacant posts of ETT as expeditiously as possible, therefore now process of selection has been started. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. After having heard learned counsel for the parties and on perusal of the facts of the present case, it is apparent   that to fill up the posts of ETT, advertisements were issued on 9.11.2015 for 3522 posts and vide corrigendum dated 13.1.2016, additional 978 posts were again notified making the total posts 4500. In another set of process of recruitment, by subsequent advertisement dated 30.7.2016, 2005 posts of ETT were notified. Appellants applied under both the advertisements and undergone the process of selection for the posts of ETT, and also found place on  merit. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. The Public Interest Litigation came to be registered by High Court because certain applicants belonging to the Backward Class category protested by holding out threats to commit suicide against the inaction of the State of Punjab. As per the protestors, they had qualified their test and were eligible for appointment as ETT. They further insisted that  a meeting be held regarding their demands with the Chief Minister of Punjab. The said incident gathered media attention, whereafter, the High Court of Punjab and Haryana took “suo­moto” cognizance on the issue  on judicial side treating it as Public Interest Litigation, registering the same i.e., as CWP. No. 24383 of 2016. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. The said writ petition was disposed by the High Court vide order dated 23.12.2016 with the following directions: “We are of the view, that the methods adopted by the protesters are unfortunate, improper and incorrect. It is to be noticed that at one stage the persons  protesting had stated that once the process was initiated, they would end their protest and now, even appointment letter is being offered, but one of the protesters is somewhat unrelenting. In the  circumstances,  the further continuation of the Court proceedings may not  be proper. However, the matter was taken up as it was viewed that the protesting youth may not loose their  lives by their misplaced notions and for this they needed counselling and guidance. Ms. Tanu Bedi, Advocate (Amicus Curiae) has emphasized that the matter be kept pending for laying down guidelines in future in such cases. Though we would have liked to do so but for the present, it would be just and expedient to put a quietus to the matter so that the person protesting can climb down from the tower and seek his appointment as  Elementary  Teacher after complying with the necessary formalities. Besides, the State shall continue with its process of offering appointment letters to the Elementary Teachers whose turn on merit has reached so that the recruitment process against the 4005 and the 2005 posts of Elementary Teachers is completed and the vacant posts are filled. Mr. H.C. Arora, Advocate as also Mr. Jagmohan Singh Bhatti, Advocate (Amicus curiae) and Ms. Tanu Bedi, Advocate (Amicus Curiae) State that they shall jointly file a PIL in this regard. They may do so. The present petition is, accordingly disposed of.” </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">10. Thereafter, C.M. No. 5766 of 2017 was filed before the High Court on 3.4.2017 by the appellants informing about the subsequent developments which transpired  after passing the said order. The response was sought from the Director, Public Instruction (Elementary Education). A comprehensive affidavit was filed apprising about the vacancies and the steps taken by the Department of School Education for de­reservation/interchangeability of the post of Schedule Caste/Tribe category to OBC category.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. As per the response, it is not disputed that 595 posts  of SC/ST category are not yet filled due to non­availability   of the eligible candidates in the said category. It is also not disputed that out of the said process of selection, about 100 eligible candidates of OBC category were available. It is said the Suo Moto Writ Petition No. 24383 of 2016 was registered to maintain law and order situation due to the protest raised by unemployed youths climbed on tower on account of not filling the posts of ETT. It was further stated that merit candidates of Backward Classes have already  been appointed on the vacant posts of the said  category. Now they are claiming interchangeability of the 595 unfilled posts of SC/ST category to Backward Class category as per the Policy letter No. 17246. It is further urged Section 7 of the 2006 Act confers powers to the State Government to take decision if expedient in public interest. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12. On perusal of record, it reveals the High Court vide order dated 9.2.2018 directed the Department of Welfare, Government of Punjab to take a decision on the letter of the Department of School Education affording due opportunity of hearing to the applicants. The High Court also granted time to the candidates of Backward Class category to file  the fresh representation for consideration. There after vide order dated 9.5.2018 passed by the Principal Secretary, Department of Welfare of Scheduled Castes, Backward Classes and Minorities, these representations were rejected relying on the instruction letter No. 17248. It is true those instructions were not applicable and they had to consider the Policy letter No. 17246, relevant on the issue.  There after High Court vide order dated 7.9.2018 directed the State Government to pass a fresh order in terms of the Policy letter No. 17246. The State Government filed the reply by way of additional affidavit before the High Court and said that Department of Social Welfare, Punjab vide letter dated 4.10.2018 declined to interchange the vacant post of SC/ST category to the Backward Class. In the meantime, Writ Petition (PIL) No. 108 of 2019 was filed before the High Court making prayer to issue the direction to the State of Punjab to fill up the said vacant posts of Scheduled Caste category, which was disposed of  vide  order dated 15.05.2019. The application filed by the appellants in the said Writ Petition for modification was also disposed off observing that while passing the order,   the appellants/applicants may also be given an opportunity of hearing. Thereafter, Director, Education Department on 16.8.2019 wrote a letter to the Principal Secretary, Social Justice, Empowerment and Minorities (Reservation Cell) seeking guidance regarding interchangeability. The Department of Social Justice, relied upon the order dated 9.5.2018 and said the interchangeability of the posts is not permissible. The High Court after the response, passed the order impugned dated 17.01.2020 dismissing the writ petition with the following observations: “Having perused the record, it is also observed that a public interest litigation CWP ­PIL ­108­2019 was filed before this Court praying for issuance of a direction to the State of Punjab to fill  up the aforesaid vacant posts  of Schedule caste category, which petition has been disposed of by this Court vide order dated 15.5.2019 directing the State of Punjab to consider the representation of public interest petitioners. IT is  further observed that a miscellaneous application was filed by certain OBC candidates seeking recall and modification of the direction issued by this Court on 15.05.2019 in CWP­PIL­108­2019, which has also been disposed of by this Court by order dated 30.5.2019 with  a modification that the applicants would also be granted hearing by the authorities while taking a decision. The respondents in their additional affidavit have placed order dated 02.08.2019 on record passed by the Director, Education, Punjab, in compliance with the order passed by this Court in Public Interest Litigation as well as the order of modification dated 30.05.2019. From a perusal of the same, it is evident that the authorities have examined the issue and have rejected the claim of the applicants. The learned Additional Advocate General, appearing for the State of Punjab submits that the authorities have now taken a decision to re­advertise the posts and fill up the same in accordance with law. In view of the aforesaid facts and events that have transpired, we do not find any reason to keep the present petition pending which was initiated suo moto by this Court on account of the illegal mode of protest adopted by certain persons. More so, in view of  the  fact that the issue that was subsequently taken up by this Court in the present case, has already been addressed and appropriate orders have been passed in CWP­PIL­108­2019. In the circumstances, as nothing further survives for decision in the present suo moto writ petition, the same is accordingly dismissed, taking the statement of the learned Additional Advocate General, Punjab on instructions from Ms. Malka Rani, Senior Assistant, DPI(EE) on record, that they are taking up steps for filling up the posts in accordance with law, including the steps of examining the issue of seeking dereservation, if so advised, as contained in Section 7(2) of the Punjab Scheduled Castes and Backward Classes (Reservation in Service) Act, 2006. In view of the aforesaid discussion, as the petition is dismissed no further orders are required to be passed by this Court in the applications filed by the applicants.” </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13. On filing the present appeal and after issuance of notice, indeed on 2.12.2020 this Court passed the following order “Having heard Shri P.S. Patwalia and Shri Bharihoke at same length, it appears clear to us that the High Court order dated 07.09.2018 in particular: “Learned State counsel prays for time to seek instructions and to file an affidavit in this regard. In case it is found that the earlier order passed was based on instructions issued vide letter No. 1945­WG­54/17248 dated 17.3.1954, then the respondent­Department shall pass a fresh order on the basis of the instructions vide letter No. 1945­WG­54­17246 dated 17.3.1954.” has not yet been complied with. We had been shown an order dated 02.08.2019 which merely reiterates the 07.09.2018 order without the Government applying its mind to the penultimate paragraph of the High Court order dated 07.09.2018 set out hereinabove. We therefore, direct the respondent to pass an order strictly in accordance with the penultimate paragraph of order dated 07.09.2018 within four weeks from today. The interlocutory application is disposed of accordingly. Application for impleadment is dismissed as withdrawn.” </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14. In response to the order, the additional affidavit is filed before this Court, inter alia, contending that the interchangeability of the posts of SC/ST category of ETT to OBC category is not permissible with regard to the instructions contained in Policy letter No. 17246, it is said those instructions have already been withdrawn. It is stated that the de­reservation/ interchangeability of the post from SC/ST category to OBC category is not permissible as per Section 7 of 2006 Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15.In this regard to appreciate the arguments, the provision of Section 7 of 2006 Act is required to be quoted for ready reference, which is reproduced as thus: “7. De­reservation of reserved vacancy. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> (1)  There  shall be no de­reservation of any reserved vacancy by any appointing authority in any establishment, which is to be filled up by direct recruitment or by promotion.  In case,  a qualified or eligible Scheduled Castes or Backward Classes candidate, as the case may be, is not available to fill up such vacancy, in that situation, such vacancy shall remain unfilled.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(2) Notwithstanding anything contained in sub­section (1), if, in the public interest, it is deemed necessary to fill up any vacancy referred to in that sub­section, the appointing authority shall refer the vacancy to the Department of Welfare of Scheduled Castes and  Backward Classes for de­reservation. Upon such reference, the Department of Welfare of Scheduled Castes and Backward Classes may, if it is satisfied that it is necessary or expedient so to do, by order in writing, de­ reserve the vacancy, subject to the condition that the vacancy so de­reserved, shall be carried forward against a subsequent unreserved vacancy. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16.From the bare reading of the aforesaid, it is clear that de­reservation of any reserved vacancy which is to be filled up by direct recruitment or by promotion cannot be done by the appointing authority. In case due to non­availability of the eligible candidates of any of the category, the posts remain unfilled, the appointing authority may request to the Department of Welfare of Scheduled Castes and Backward Classes for de­reservation of the said unfilled vacancy. On such request after recording satisfaction, if necessary or expedient in the public interest, subject to the condition to carry forward the said vacancy against subsequent unreserved vacancy the order may be passed by the said department. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">17.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">In this context, the instructions issued vide Policy letter No. 17246 are also relevant, which are extracted and reproduced as thus: “Government have now decided that, on the basis of their population, an additional 2 per cent of vacancies in the State Government services should also be reserved for members of the ‘Backward Classes’ and that before vacancies reserved for Backward Classes  are thrown open to others, they should first be offered to candidates of Scheduled Castes/Tribes, if available. In the same way, before vacancies meant for Scheduled Castes/Tribes are thrown open to others owing to unavailability of suitable candidates, they shall be offered first to the backward classes.” </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">18.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">The aforesaid Policy letter was withdrawn vide letter No. 13565­4WGI­64/23892 dated 11th November, 1964, but  it was again restored adding some conditions vide letter No. 1346­SW1­74/11491  dated  20.06.1974;  the  relevant  extract of such instruction is also reproduced as thus: “I am directed to refer to the subject noted above and to say that prior to 11th November, 1964, in the event   of non­availability of Scheduled Castes/Tribes candidate against a reserved vacancy, preference was given to Backward Classes candidates and vice versa, over other general  candidates.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">This inter changeability of reserved vacancies was withdrawn – vide para 4 of Punjab Government letter No. 13565­ 4WG1­64/23892 dated 11th November, 1964, with the result that if a reserved vacancy is not filled by the candidate belonging to the particular category for which it is reserved it is carried forward in accordance with the current instructions, or, if this is  not  possible, it is thrown open to other generally.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">2.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">This matter has been engaging the attention of Government for some time past and it has now been decided that after the carry forward rule has been exhausted and a suitable scheduled cast  candidate  has still not become available, a vacancy reserved for this category should first of all be offered to a candidate belonging to the Backward Classes, before  it is thrown open for general recruitment. In case a Backward Class candidate avails of such a  vacancy, the vacancy properly reserved for a Backward Class candidate later in the roster would then go to a Scheduled Caste candidate instead.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">3.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">The receipt of this communication may please be acknowledged. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">19.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">The clarification as issued vide letter No. 2/246/78­ SW3/7416 dated 10.12.1979 written by the Secretary to Government of Punjab, Scheduled Caste and Backward Classes to all heads of Departments is also relevant  however, reproduced as under: “Subject: Reservation in services for members of Scheduled Castes and Backward Classes­ Interchangeability of reserved posts between them. I am directed to invite a reference of Punjab Government letter No. 1346­SW1­74/11491 dated 20th June, 1994 and letter No. 771­SW1­76 dated 6th April, 1976, on the subject noted above, and to say while giving the benefits of interchangeability to a backward Class candidate and vice­versa, the Department do not obtain no­objection certificate from the Department of Welfare of Scheduled Castes and Backward Classes despite clear provision in the instructions. To make it clear, under the instructions, no­objection certificate is a must before the vacancy meant for Scheduled Castes person is offered to a Backward Class candidate and vice­versa.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">2.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Its receipt may please be acknowledged.” </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">20.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">From the above it is clear that as per Section 7 of 2006 Act, de­reservation for the reserved vacancy by the appointing authority is restricted. The said de­reservation may be possibly directed by the Department of Welfare of Scheduled Castes and Backward Classes if it is expedient in public interest after recording satisfaction for such de­ reservation. In the said contingency the department shall pass an order assigning those reasons. Thus, in the context of 2006 Act also the de­reservation or interchangeability may be possible with a rigour to exercise such power by the department, namely; Department of Scheduled Castes and Backward Classes and not by appointing authority. If we examine the Policy letter No. 1945­WG­54­17246 which was withdrawn on 11.11.1964, later restored vide letter dated 20.06.1974 makes it clear that those instructions are not in contravention of the provisions of Section 7 of the 2006 Act; in fact, it is as per the spirit of the 2006 Act. Therefore, in the net result, the interchangeability of the vacant unfilled posts of SC category may be possible due to not having eligible candidates by the department concerned but not by appointing authority. In the said context, the letters returned by the Education Department in favour of the appellants to the department concerned are not of much relevance in particular when the department concerned  have not agreed upon the request of interchangeability  of the unfilled posts of SC/ST category and refused to accept the request of the appointing authority. In addition to the aforesaid it is required to be observed in the manner in which the protest was started by the candidates of the OBC category was not justified. The High Court has rightly observed that steps taken by the protestors were unfortunate, improper and incorrect. The suo moto PIL No. 108­2019 was entertained to save the life of protesting youth, and it should not be influenced by misplaced notions and they may be counselled or guided by the authorities. However, after issuing the direction, the candidates of the OBC category were appointed in terms of their merit. Thereafter, by filing the miscellaneous applications and subsequent writ petitions the relief to fill up the vacant  posts of SC/ST category from the candidates of the Backward Classes has been pressed upon, which has been rejected by the High Court by the order impugned. At this stage it cannot be lost sight that the merit list was prepared in furtherance to the advertisement of the year 2015­2016 and to accommodate the candidates of the said merit list. Thereafter interchangeability for unfilled 595 vacancies of SC/ST category has been prayed for. In our considered opinion, issuance of such direction after 6 years of notifying the selection list for filling up the unfilled vacancies of SC/ST category by OBC would be wholly unjustified. In addition, the selection list prepared in the year 2016 would not survive after the lapse of a long time to fill up the vacancies after interchangeability. It is to observe that rejection of claims of appellants by the departmental authorities relying upon wrong instructions or mentioning incorrect fact of withdrawal of Policy letter No. 17246 would not confer any right to appellants to claim the reliefs. Such an act of the departmental authorities may be deprecated but it would not confer any right to the appellants to seek direction of interchangeability of the unfilled 595 posts of ETT of SC/ST category to OBC category. Therefore, the argument advanced by learned senior counsel Mr. Patwalia in this regard is hereby repelled. As stated by the respondent, the process to fill up the vacant posts of ETT in the state has already been advertised, which is in  accordance to law. Therefore, in view of the discussion  made hereinabove, we are not inclined to grant the relief as prayed in this appeal. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">21.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">In view of the foregoing discussion, we are not inclined to interfere in the order impugned. Accordingly, this appeal stands dismissed. No order as to costs.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p></o:p></p>', 'f542cf6e15dc6dc2b2a3e6d1c456b275.jpeg', '145f28c39ac073c14ae3e24fc45e321e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-14', 1, '', '', '2022-03-14 17:55:34', '2022-03-14 16:10:44'),
(1402, 'vhKxpR3IORBuE0iy1M9QNwdvC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Issue notice well in advance giving sufficient time to the assessee to furnish documents\'\'. Karnataka High Court directs Income Tax Department.', '<p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Rudrayya Gurupadayya Belurmath Vs The Principal Commissioner of Income Tax and Others.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Writ Petition 103816 of 2021 decided on 28 October 2021.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Justice Suraj Govindaraj.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">The petitioner is before this Court seeking for the following reliefs:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>i)&nbsp; Issue Writ of Certiorari or writ in the like nature of quashing the impugned ex-parte assessment order passed by respondent No.2dated 20.09.2021, passed in DIN &amp; Order No.: ITBA/ AST/ S/ 144/ 2021-22/ 1035746644(1); passed by respondent No.2, vide ANNEXURE - C;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">(ii) Issue Writ of Mandamus or writ in the like nature of direction, directing the respondent authorities to refrain from initiation of further proceedings in respect of the impugned ex parte assessment order passed by respondent No.2 dated 20.09.2021, passed in DIN&nbsp; &amp; Order No.: ITBA/ AST/ S/ 144/ 2021-22/ 1035746644(1); passed by respondent No.2, vide ANNEXURE - C;</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">(iii) Issue a Writ of Prohibition, or a writ in the like nature of prohibition, prohibiting the respondents herein or any authorities thereof, refraining them from initiating recovery proceedings on the basis of the above impugned ex-parte assessment order passed by respondent No.2 dated 20.09.2021, passed in DIN &amp; Order No.: ITBA/ AST/ S/ 144/ 2021- 22/ 1035746644(1); passed by respondent No.2, vide Annexure - C;</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">(iv) Grant such other reliefs or further orders as this Hon’ble Court may deem fit in the facts and circumstances of this case, in the interests of justice and equity.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">2. Vide Annexure-A being a notice dated 13.09.2021, the petitioner had been called upon to furnish the ledger copies of the creditors and subsequent payment&nbsp; letters, confirmation letter from creditors, Pan number, names and&nbsp; address,&nbsp; contact&nbsp; numbers,&nbsp; balance&nbsp; sheet etc., and appear for hearing on 17.09.2021 at 10:30 a.m. It is in reply thereof, that the the&nbsp; petitioner electronically sought for four additional days’ time upto 21.09.2021 on the ground that the&nbsp; petitioner would require time to gather the information from the multiple sources. Despite the said request having been made, there was no reply to the said request. Instead, assessment order was passed on 20.09.2021 vide Annexure-C and it is this assessment order, which is under challenge before this Court.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">3. Shri&nbsp; Mallahar&nbsp; Rao,&nbsp; learned counsel&nbsp; for&nbsp; the&nbsp; petitioner would submit that principles of natural justice having been completely violated, inasmuch as what&nbsp; the&nbsp; petitioner&nbsp; sought&nbsp; for&nbsp; &nbsp;was&nbsp; only four days additional time and even though, it is contended that the assessment would have got time barred on 29.09.2021, if time upto 21.09.2021 had been&nbsp; granted, it would not have materially affected the grounds raised by the department as regards the assessment becoming time barred. He therefore submits that the department has shown undue haste and hurry in the matter depriving the petitioner of a right to submit documents and present himself before their department and as such, he seeks for quashing of the same.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">4. Shri&nbsp; &nbsp;Y.V.Raviraj,&nbsp; &nbsp;learned&nbsp; &nbsp;standing&nbsp; &nbsp; counsel&nbsp; &nbsp; for&nbsp; &nbsp; the department would submit that the show Cause Notice dated 13.09.2021 is a notice issued in a continuing proceeding, inasmuch as, reminder noticed was issued on&nbsp; 17.05.2021 and 09.08.2021&nbsp; &nbsp;in response to which only partial documents had been furnished. Therefore, the further&nbsp; notice&nbsp; was&nbsp; issued&nbsp; on 13.09.2021&nbsp; being&nbsp; a continuing notice, the petitioner ought to have furnished the documents within the given time frame. The respondent being compelled to complete the assessment within the given&nbsp; time frame,the&nbsp;</b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">respondent could not grant the time sought for. On these grounds, he submits that the petition is liable to be dismissed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5.Heard Shri Mallahar Rao, learned counsel for the petitioner and&nbsp; Sri&nbsp; Y.V.Raviraj,&nbsp; learned counsel&nbsp; for the respondent-department.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. This is not a stray&nbsp; case.&nbsp; This&nbsp; Court is coming across several matters where show Cause Notices are issued just at the end of the limitation period calling upon the assessee to furnish several documents in a short time frame. The department having tremendous resources at its disposal both in terms of manpower and the IT infrastructure available, the department is well aware of the possibility of an assessment being time barred and the date on which it would be time barred. It is therefore required that any show Cause Notice&nbsp; as&nbsp; regards&nbsp; reassessment&nbsp; or&nbsp; otherwise&nbsp; issued well within time so as to provide an opportunity to the assessee to defend the same properly, the issuance of show Cause Notice cannot only become an&nbsp;</b></font><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">empty formality&nbsp; inasmuch as adequate opportunity and time is required for the assessee who apart&nbsp; from&nbsp; replying&nbsp; to&nbsp; the department is&nbsp; also engaged in its business activities and other activities which require expending of time.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. This case is also a pointer in that direction inasmuch&nbsp; as the notice was issued on 13.09.2021 fixing the hearing on 17.09.2021 and calling&nbsp; upon&nbsp; the&nbsp; petitioner to&nbsp; &nbsp;produce vouchers, books of accounts, ledger copies of the creditors, subsequent payment ledgers, letter of confirmation from the creditors, the PAN number, name and address and contact particulars of the creditors, the balance sheets of the petitioner and the creditors. This itself would indicate that&nbsp; the&nbsp; petitioner was required to obtain documents from third parties&nbsp; which&nbsp; would&nbsp; take sometime. It cannot be expected of an assessee to approach various creditors and get the above information within a period of four days in the present case. The petitioner having received the show Cause Notice on 16.09.2021 and on 17.09.2021&nbsp;</b></font><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">electronically&nbsp; sought for&nbsp; extension of time still 21.09.2021 to gather the material from the multiple sources and furnish the documents. Admittedly, there is no reply to the said request at Annexure-B, instead the impugned assessment order has been passed on 20.09.2021. This&nbsp; in&nbsp; my considered opinion is a gross violation of the principles of natural justice, moreso, when fiscal orders are going to be passed which have a direct consequence and impact on an assessee like the petitioner.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. Perusal of the assessment order does not also refer to the request for an adjournment and/or the refusal or acceptance of the said request. In the present case, even if time had been granted till 21.09.2021 as&nbsp; sought for by the petitioner, the limitation period for passing&nbsp; the&nbsp; assessment&nbsp; orders&nbsp; would&nbsp; &nbsp;not&nbsp; &nbsp;have got adversely affected. In that, the assessment would not have got time barred. It was for the department to have provided adequate time to the petitioner moreso when the request was within the limitation period.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">9. For all the multiple reasons aforesaid, the petition is allowed. A certiorari is issued and the&nbsp; assessment order dated 20.09.2021 at Annexure-C is&nbsp; quashed. The petitioner is permitted to furnish all the documents on or before 10.11.2021 and appear before the 2nd respondent at 10:30 a.m on 10.11.2021 and submit his documents. The 2nd respondent will also provide a hearing to the petitioner and pass necessary orders thereafter strictly in accordance with law.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><br></b><br></p>', 'a5a32a55613d1a9149a1726e97a1b415.jpeg', 'f6e60f7f1af7a96743d17395181f38ad.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-11', 1, '', '', '2022-03-11 19:19:31', '2022-03-11 15:30:26');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1415, '701n9LU5yUzSBA1fDFLfFupkx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Advocate, who acted professionally as per instructions of his/her client, can NOT be made criminally liable for the offence of defamation under Section 500 of the IPC unless contrary is alleged and established. Chhattisgarh High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Arun Thakur Vs State of Chhattisgarh.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Miscellaneous Petition 1984 of 2018 decided on 10 May 2019.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sanjay K Agrawal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Whether an Advocate, while acting under the instructions of his client and proceeding professionally, can be prosecuted / punished for the offence of defamation punishable under Section 500 of the Indian Penal Code is the precise question involved in this petition which arises for consideration on the following factual backdrop: -</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><span lang=\"EN-US\"></span></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The petitioner is an Advocate enrolled under the provisions of the Advocates Act, 1961 and has standing of more than 45 years at the Bar in District Court, Jagdalpur (Bastar). He drafted a plaint on behalf of Smt. Madhuri Pandey, D/o Ghanshyam Pandey that is for declaration of title, confirmation of possession and permanent injunction against Pratibha Pandey, arrayed as defendant No.1 in the plaint and in para 7, defendant No.1 was mentioned as concubine of Ghanshyam Pandey. The dispute relates to the property of plaintiffs (Smt. Madhuri Pandeys) father Shri Ghanshyam Pandey and the suit was filed on 10-1-2014 before the trial Court. In that suit, the said defendant - Pratibha Pandey appeared before the trial Court on 4-5-2014 through her counsel and thereafter, it appears that she filed a complaint on 17-2-2018 before the higher authorities including the Inspector General of Police, Jagdalpur, Bastar, that the petitioner along with other persons filed a plaint in which she has been held to be the concubine of one Ghanshyam Pandey, whereas she is widow of Late Shri Ghanshyam Pandey and as such, appropriate action be taken for damaging her reputation. It appears that the said complaint was not taken cognizance of by the police authorities leading to filing of petition before this Court being W.P.(Cr.) No.23/2018 (Smt. Pratibha Pandey v. State of Chhattisgarh and eleven others) for taking action against the State and other persons in terms of Lalita Kumari v. Government of Uttar Pradesh and others, (2014) 2 SCC 1 in which this Court directed the concerned police to proceed in accordance with law after registering the first information report (FIR). Thereafter, the police investigated and registered the offence under Sections 506 &amp; 509 of the IPC and thereafter, charge-sheet was filed for offence under Sections 294, 500, 506 and 509 read with Section 34 of the IPC.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. In the aforesaid background facts, the petitioner takes exception to the initiation and continuance of his prosecution for the aforesaid offences principally, on the ground that he being an Advocate in performance of his professional duty has drafted the plaint bona fidely against respondent No.2 herein which was duly filed before the trial Court and in which she is contesting the suit and therefore the defamatory statement, if any, is covered by Ninth Exception to Section 499 of the IPC and therefore no action can be taken on the basis of his act in the professional capacity in a bona fide manner. Even otherwise, taking the complaint as it is on its face value, no offences punishable under Sections 294, 500, 506 and 509 read with Section 34 of the IPC are made out, therefore, Criminal Case No.540/2018 against the petitioner pending in the Court of Chief Judicial Magistrate, Jagdalpur deserves to be quashed and the impugned order dated 8-8-2018 refusing to discharge him on the ground of limitation deserves to be set-aside.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15. In the matter of Chaman Lal v. State of Punjab, (1970) AIR SC 1372, the Supreme Court has held that in order to establish good faith and bona fide, it has to been seen first the circumstances under which the letter was written or words were uttered; secondly, whether there was any malice; thirdly, whether the accused made any enquiry before he made the allegations; fourthly, whether there are reasons to accept the version that he acted with care and caution and finally, whether there is preponderance of probability that the accused acted in good faith.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16. The Madras High Court in the matter of K. Pannai Sethuraman v. A.R. Sethupathy, (2008) CriLJ 3155 has held that it is a settled principle of law that a lawyer conducting a case on behalf of his client enjoys certain privileges and latitudes and the presumption will be that he has acted in good faith unless, contrary is alleged or established. An advocate will come within the Ninth Exception to Section 499 of the IPC and it will be presumed that he acted in good faith and in the interest of the protection of his client unless contrary is alleged or established.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17. The Allahabad High Court in the matter of B Sumat Prasad Jain v. Sheo Dutt Sharma and another, (1946) AIR Allahabad 213 with regard to the privilege of an advocate acting professionally in a cause observed as under: -</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><i>\"So long as the interests of litigants in this country are entrusted to recognized and qualified professional men and so long as the Courts repose their confidence in the Bars which practise before them, I respectfully agree with Sir Henry Richards in thinking that it would be a disaster to the litigating public, both if the liberty of speech or action of their advocates were circumscribed by exposure to civil suits for words spoken or written in the course of the administration of cause entrusted to them, and if the Courts were by law compelled to withdraw their confidence from them. Such exposure would, I think, be calculated to limit their freedom and independence in their clients interests to a greater extent than would be the case in England, if no absolute privilege existed there, since the risk of vexatious and often ruinous litigation in India is far greater. Nor do I perceive for what good reasons, so long as the same principles of the practice and administration of justice are maintained, or aimed at, in this country as in England the necessity for the maintenance of the absolute privilege of the Bar should be less. Indeed, there is the greater need for it in a country in which the advocate is exposed to larger risks of spiteful litigation. If it be said that conversely, the risk of the abuse of an absolute privilege is also greater, I should still maintain that it were better in the public interest that the immunity of the advocate should be sufficiently large to enable him to perform his duty fearlessly than that some relatively few cases of abuse should be made the subject of a just civil liability. If abuse occurs, as sometimes from inexperience and sometimes from less excusable causes is bound to happen, the remedy lies, I think, not in an alteration of the law relating to the privilege but in fostering high standards of practice, in the censure of the public and in the continuous vigilance of the Courts themselves.\"</i></span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18. Likewise, in the matter of K. Daniel v. T. Hymavathy Amma, (1985) AIR Kerala 233 was observed by the Kerala High Court that the English Courts have reiterated the view during last four hundred years that the statements made by Judges, Juries, counsel, parties and witnesses in the course of judicial proceedings are not actionable in civil law for defamation as the occasion is absolutely privileged. It was further held that the English Common Law relating to absolute privilege enjoyed by Judges, advocates, attorneys, witnesses and parties in regard to words spoken or uttered during the course of a judicial proceeding is applicable in relation to a civil suit filed for damages for defamation. The reasons for granting absolute privilege to the statements made in the course of judicial proceedings are laid down in paragraph 11 of the judgment which are as follows: -</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><i>\"11. It is imperative that Judges, counsel, parties and witnesses participating in a judicial proceeding must be able to conduct themselves without any apprehension of being called upon to answer a claim for damages for defamation. They must be able to act uninfluenced by any such fear. Freedom of speech on such occasions has to be totally safeguarded. Hence it is necessary to protect the maker of statements on such occasions. The privilege arises on account of privilege attached to the occasion and not to the individual. It is possible that sometimes counsel or the parties or witnesses may take advantage of the occasion and indulge in false or malicious statement which has the effect of bringing down the reputation of some other person; that would certainly be mischievous. But to say that statement would be privileged only in the absence of malice would put these persons in considerable strain and apprehension on such occasions. Basis of privilege is not absence of malice or the truth of statement or the intention of the maker but public policy. Any restriction on privilege during the occasion would create constraints in the process of administration of justice.\"</i></span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19. Likewise, in the matter of Chunni Lal v. Narsingh Das, (1918) AIR Allahabad 69 , the Full Bench of the Allahabad High Court has held that defamatory words used in connection with the judicial proceedings are not actionable on the ground of absolute privilege and as such the suit for damages for defamation instituted by the plaintiff was dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20. Recently, in the matter of, Pradip Kumar Mitra v. Lipi Basu and others,2017 SCCOnLine(Cal) 619, the Calcutta High Court relying upon the decision of the Full Bench of the Allahabad High Court in Chunni Lal (supra) and that of the Kerala High Court in K. Daniel (supra) while following the view has held that the privilege extended to the Judges, Juries, counsel, parties and witnesses are based on the principle of public policy.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>21. Likewise, in the matter of Bennett Coleman &amp; Co. Ltd. and others v. K. Sarat Chandra and others,, the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh held that the privilege of Judges, Counsel, Jury, Witnesses or Parties to be the absolute privilege and observed as under: -</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><i>\"Absolute privilege-a statement is said to have absolute privilege when no action lies whether against Judges, Counsel, Jury, Witnesses or Parties, for words spoken in the ordinary course of any proceedings before any Court or Tribunal recognized by law. It is manifest that the administration of justice would be paralyzed if those who were engaged in it were liable to actions of libel or slander upon the imputation that they had acted maliciously and not bona fide. The privilege extends not only to words spoken but also to documents properly used and regularly prepared for in the proceedings.\"</i></span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>22. The Calcutta High Court in the matter of P.C. Gupta v. The State, (1970) 2 ILR(Cal) 254 has held that the doctrine of absolute privilege is not applicable to criminal proceeding. It was held as under: -</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><i>\"It is abundantly clear, therefore, that even in the said Single Bench decision of the Bombay High Court, the doctrine of absolute privilege enjoyed by a lawyer in regard to words spoken or uttered during the course- of a judicial proceeding was applied only to civil suits filed for damages for libel or slander and it was noted that there was originally a divergence of opinion and ultimately the preponderance of the decisions of the different High Courts is that the said doctrine of absolute privilege should not be applied to a criminal proceeding where the party prosecuted should be required to bring his case within exception 9 to Section 499 of the Indian Penal Code.\"</i></span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23. The Calcutta High Court further relied upon the observation by the Master of the Rolls in the case of Munster v. Lamb,1882 SUR11 QBO 588 which is as under: -</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><i>\"If any one needs to be free of all fear in the performance of his arduous duty, an advocate is that person and, therefore, unless and until there is a proof of express malice on the part of the lawyer, in the discharge of his professional duties, he does not come within the bounds of the offence of defamation. In ancient Rome a class of persons called the juris prudentes came into existence though they were not professional lawyers in their true sense. Notion of law does not include of necessity the extent of a distinct profession of lawyers whether as Judges or as Advocates, but there cannot well be a science of law without such profession. The lawyers are the high priests in pursuit of truth at the altar of justice and there should be no spoke in the wheels of justice by fettering unreasonably the freedom of such lawyers. Fiat justitia mat caelum: Let justice be done, though heavens may fall.\"</i></span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>24. In light of above-stated legal analysis, an advocate, who acted professionally as per instructions of his/her client, cannot be made criminally liable for the offence of defamation under Section 500 of the IPC unless contrary is alleged and established.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>25. Now, the question is, whether in light of the Ninth Exception to Section 499 of the IPC and in view of the law laid down in the aforesaid decisions by various High Courts, the statement made in the plaint by the petitioner herein mentioning respondent No.2 herein to be concubine of Shri Ghanshyam Pandey under the instructions of respondent No.3 herein / plaintiff, falls within the said Ninth Exception to Section 499 of the IPC?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>26. Reverting to the facts of the case, from a careful perusal of the plaint supported with affidavit, it appears that all the words found in the plaint including that respondent No.2 herein is concubine of Ghanshyam Pandey have been averred only on the basis of instructions given by the plaintiff, as she being the daughter of late Shri Ghanshyam Pandey is claiming the suit property stating that Smt. Pratibha Pandey is not the widow of her father and she is only concubine and not entitled for the suit property. The petitioner in his capacity as advocate in discharge of professional duty on the instructions of his client incorporated the said averment in para 7 of the plaint filed in the civil suit. His acts are bona fide and he cannot be fastened with criminal liability. As such, imputation was made in good faith and on the basis of instructions of his client in order to protect her right to property which she is claiming, as right to property is a constitutional right under Article 330A of the Constitution of India and therefore does not constitute the offence of defamation under Section 499 of the IPC punishable under Section 500 of the IPC and falls within the Ninth Exception to Section 499 of the IPC. As such, an Advocate who has acted professionally and drafted plaint making averment as per the instructions of his client, cannot be held liable for the offence of defamation under Section 500 of the IPC.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>35. The petition is allowed to the extent indicated herein above.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ae91b8c1fcde599fa969100a9d9c5ba8.JPG', 'bcf856a9286887dac3d900b21ee16925.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-14', 1, '', '', '2022-03-14 19:27:36', '2022-03-15 11:31:34'),
(1403, 'CTrkmXpnEv79B8p7cUgp8hk0X', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mere presentation of plaint without court fee does not amount to \'filing of suit\'. By the time court fee is paid, if limitation runs out, suit is liable to be dismissed. Karnataka High Court. ', '<div><b>Priya Bhandary vs Rama Bhandary and others.&nbsp;<br>Writ Petition 16773 of 2017 decided on 23 February 2022<br>Justice Suraj Govindaraj<br></b></div><div><b><br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. An objection having been raised by the office of the Senior Civil Judge, Mangalore, as regards payment of deficit court fee, time was granted till 5.09.2013 for making payment of court fee. However, no such payment was made. It was only on 17.03.2016 that an application under Section 151 of CPC was filed seeking for putting up of the file before the Court for necessary orders, the said application was considered and the said Court on 28.03.2016, taking note of the fact that plaintiff has not taken any steps to comply with office objections dismissed the suit as barred by limitation&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">since it has not taken on record as on that date. It is aggrieved by the said order, the petitioner is before this Court.</b></div><div><b>31. The Following principles are emerged on a consideration of the various judgments referred to above:-</b></div><div><b>1. The power exercised by a Court&nbsp; under Section 149 is very wide and the discretion shall be exercised in favour of the plaintiff in the normal circumstances.</b></div><div><b>2. The power under Section 149 of C.P.C. can be exercised by the Court concerned \'at any stage\' of the suit.</b></div><div><b>3. When the Court exercises the power under Section 149 of C.P.C. before numbering the plaint, the Court is not required to issue notice to the proposed defendant in the suit, since it is a matter between the Court and the plaintiff.</b></div><div><b>4. Once, the Court exercise the power under Section&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">149 of C.P.C., the same relates back with the presentation of the plaintiff at the first instance and therefore, the question of limitation does not arise.</b></div><div><b>5. When the power is exercised by the Court on an application filed under Section 151 of the Code of Civil Procedure, it is deemed to have been in exercise under Section 149 of the Code of Civil Procedure.</b></div><div><b>6. The Court can exercise its power under Section 149 of C.P.C. either with or without an application by the party concerned.</b></div><div><b>7. An order passed or deemed to have been passed under Section 149 of the Code of Civil Procedure, cannot be challenged and decided in a revision or at the time of final hearing in the normal circumstances, until and unless mala fide is raised and proved.&nbsp;</b></div><div><b>8. The onus of proving lack of bonofides or mala fides is heavily on the person who alleges the same.</b></div><div><b>9. The power exercised by the Court can also be challenged on the ground that the Court below has not followed the proviso to Order VII, Rule 11, of C.P.C.</b></div><div><b>10. The power under Order VII, Rule 11 of C.P.C. cannot be invoked when the plaintiff pays the amount as per the order of the Court as directed under Order VII, Rule 11 (b) and (c) of C.P.C.</b></div><div><b>10. As observed by the Apex Court in Mahanth Ram Das case, the present case is also an unfortunate and unusual one. In that the suit in O.S.No.422/2008 which was originally filed before the Civil Judge (Jr.Dn), Mangalore, D.K, had been returned to be presented before the Court of competent jurisdiction and it is in&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">furtherance of the same that plaint was presented before the Senior Civil Judge, Mangalore, D.K. on 26.06.2013.</b></div><div><b>11. Though the contention of Sri.Rajashekar is that the time for payment of court fee could have been extended, a perusal of the papers on record indicate that the suit which was originally filed before the Civil Judge (Jr.dn), Mangalore, D.K., being one for declaration and permanent injunction, even when the suit was filed, the valuation was made only on the relief of permanent prohibitory injunction and a sum of Rs.25/- was paid as Court fee, however no court fee was paid as regards declaratory relief. The Civil Judge (Jr.dn) after hearing the parties had categorically come to a conclusion by valuing the subject matter of the suit that the subject matter of the suit would have to be valued at Rs.18,46,000/- and court fee had to be paid thereon.</b></div><div><b>12. This order was to the knowledge of the plaintiff. The plaintiff though re-presented the suit on 26.06.2013 did not choose to file a valuation memo nor make payment&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the necessary court fee on the said suit. The Court of Senior Civil Judge had also fixed 5.09.2013 to be the date of compliance which was also not done.</b></div><div><b>13. It was only on 17.03.2016 that an application came to be filed under Section 151 of CPC, even in the said application, no relief was claimed for extension of time for making payment of the court fee even though court fee had been determined by the Civil Judge (Jr.dn) Court in O.S. No.422/2008 way back in its order dt. 7.02.2016.</b></div><div><b>14. In my considered opinion, a mere presentation of the plaint before the Court of Senior Civil Judge, Mangalore would not amount to registration of the case. It is for this reason that there is no number which came to be allotted to the said case. Thus as on the date of the impugned order being passed 23.08.2016 there is no suit which was in existence to bring into operation the ratio laid down by the Hon’ble Madras High Court in Mahalingam’s case, that apart in the said decision, an application under Section 149 of CPC had been filed. In&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the present case, no such application has been filed. Hence, the said decision would also be not applicable.</b></div><div><b>15. The decision in P.K.Palanisamy’s case would also be inapplicable. In the present situation, despite time having been granted by the Court, the Court fee had not been paid. Thus reference made to para 17 of the above case would be of no avail in the present circumstances.</b></div><div><b>16. In the above background, I am of the considered opinion that mere presentation of the plaint would not amount to filing of registration of the suit. The concomitant factors including the payment of court fee is essential for the suit to be registered whether the court fee paid is proper or not could have been determined later. If on determination, it is found that the court fee paid is less, the plaintiff could have sought time to make good the deficit by filing an application under Section 149 of CPC.</b></div><div><b>17. In the present case, the trial Court having fixed the time for payment of court fee to be 5.09.2014, the same&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">having not been paid, cause of action as stated in O.S.No.422/2008 having arisen way back on 30.10.2003 and the court fee not having been paid till 28.03.2016, I am of the considered opinion that Non- payment of court fee due to which the suit itself was not registered made the suit exfacie barred by limitation which has been taken into consideration in the impugned order passed.</b></div><div><b>18. In the aforesaid circumstances, I do not find any infirmity in the order passed by the trial Court.</b></div><div><b>19. The Writ Petition stands accordingly dismissed.</b></div><div><b><br></b></div><div><br></div>', '43728e7e0a54165a770d76d91d4060bd.jpeg', '2dd85912d652a7634a6b0ec5a49e8d0a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-11', 1, '', '', '2022-03-11 20:10:57', '2022-03-11 14:08:25'),
(1416, 'jltO9J1CIsvTj6Ba5YH2Zn0QW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Succession Act, 1925. Grant of probate or letters of administration under Sections 276 and 278 can be revoked/annulled if all the legal heirs are not impleaded in the proceedings. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Swaminathan and Others Vs Alankamony (Dead) Through LRS.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 798-799 of 2013 decided on 9 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Gupta and Justice Ramasubramanian.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">1. The challenge in the present appeals is to an order dated 05.11.2008 whereby an appeal under Section 299 of the Indian Succession Act, 1925 (for short, ‘the Act’) filed by the brother of the testator for revocation of Letters of Administration dated 09.03.2002 was allowed.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.The appellants sought Letters of Administration of a registered Will deed dated 23.08.1991 said to have been executed by one Thankappan in favour of the appellant – brother of the testator and his two sons. After the grant of Letters of Administration, another brother of testator filed an application for revocation of the Letters of Administration on the ground that all the legal heirs were not impleaded in the proceedings for the grant of Letters of Administration. The Civil Court dismissed the application for revocation but the order was set aside in appeal. Aggrieved, the legatee is in appeal before this Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 3. Drawing our attention to the difference in the language employed between Section 276 and Section 278, the learned counsel for the appellants contended that what was filed by the appellants was a petition under Section 276(1) and that therefore, the requirement to make a mention about the details of the family and other relatives of the deceased, contained in Section 278(1) cannot be imported into Section 276. According to the learned counsel, the petition filed by the appellants was one for the grant of Letters of Administration with the Will annexed. It was not a petition filed under Section 278(1). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. In order to appreciate the above contention, it is necessary to present Section 276(1) and Section 278(1) in a table as follows:­</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Section 276 Section 278 276. Petition for probate.—</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(1) Application for probate or for letters of administration, with the<span style=\"white-space: pre;\">	</span>Will<span style=\"white-space: pre;\">	</span>278.<span style=\"white-space: pre;\">	</span>Petition for letters of administration.—</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(1) Application<span style=\"white-space: pre;\">	</span>for letters of administration shall be made annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the Will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating—</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a)<span style=\"white-space: pre;\">	</span>the time of the testator’s death,</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b)<span style=\"white-space: pre;\">	</span>that the writing annexed is his last Will and testament,</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(c)<span style=\"white-space: pre;\">	</span>that it was duly executed,</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(d)<span style=\"white-space: pre;\">	</span>the amount of assets which are likely to come to the petitioner’s hands, and</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(e)<span style=\"white-space: pre;\">	</span>when the application is for probate, that the petitioner is the executor named in the Will.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(2)… (3)…by petition distinctly written as aforesaid and stating—</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a)<span style=\"white-space: pre;\">	</span>the time and place of the deceased’s death;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b)<span style=\"white-space: pre;\">	</span>the family or other relatives of the deceased, and their respective residences;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(c)<span style=\"white-space: pre;\">	</span>the right in which the petitioner claims;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(d).&nbsp; &nbsp; The amount of assets which are likely to come to the petitioner’s hands;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(e)<span style=\"white-space: pre;\">	</span>when the application is to the District Judge, that the deceased&nbsp; at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(f)<span style=\"white-space: pre;\">	</span>when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. But unfortunately for the appellants, the catch is not to be found in the distinction between Section 276 and Section 278. It is to be found in Section 263 which reads as follows:­ 263. Revocation or annulment for just cause.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The grant of probate or letters of administration may be revoked or annulled for just cause.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Explanation. —Just cause shall be deemed to exist where—</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a)<span style=\"white-space: pre;\">	</span>the proceedings to obtain the grant were defective in substance; or</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b)<span style=\"white-space: pre;\">	</span>the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(c)<span style=\"white-space: pre;\">	</span>the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(d)<span style=\"white-space: pre;\">	</span>the grant has become useless and inoperative through circumstances; or</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(e)<span style=\"white-space: pre;\">	</span>the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect. Illustrations (i)<span style=\"white-space: pre;\">	</span>The Court by which the grant was made had no jurisdiction.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space: pre;\">	</span>The grant was made without citing parties who ought to have been cited.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space: pre;\">	</span>The Will of which probate was obtained was forged or revoked.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv)<span style=\"white-space: pre;\">	</span>A obtained letters of administration to the estate of B, as his widow, but it has since transpired that she was never married to him.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(v)<span style=\"white-space: pre;\">	</span>A has taken administration to the estate of B as if he had died intestate, but a will has since been discovered.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (vi)<span style=\"white-space: pre;\">	</span>Since probate was granted, a latter Will has been discovered.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(vii)<span style=\"white-space: pre;\">	</span>Since probate was granted, a codicil has been discovered which revokes or adds to the appointment of executors under the Will.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(viii) The person to whom probate was, or letters of administration were, granted has subsequently become of unsound mind. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. As per Section 263, the grant of Letters of Administration may be revoked for “just cause”.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Explanation (a) under Section 263 states&nbsp; that just cause shall be deemed to exist where the proceedings were defective in substance. Illustration</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) under Section 263 deals with a case where “the grant was made without citing parties who ought to have been cited”.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 7. It may be of interest to note that some of the colonial statutes contain Illustrations which form part of the statutes themselves. The Indian Succession Act, 1925 is one such enactment. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. Therefore, the High Court was right in holding that a just cause existed for revoking the grant. Hence, we do not find any error in the order of the High Court warranting our interference. Therefore the appeals are dismissed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. Pending applications(s), if any, also stand disposed of.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b5ac8d3408f097dcd97e245ff6db0ce3.jpeg', 'b5971d377a1e48b9f881cb965b5054fb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-14', 1, '', '', '2022-03-14 20:48:43', '2022-03-15 09:42:08');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1420, 'fUUQHSk4w2r34zz0BLShELpDi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hijab is NOT part of essential religious practice. Prescription of uniform is a reasonable restriction. Govt order is valid. Karnataka High Court. ', '<p><b>Resham and another vs State of Karnataka and others.<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Writ Petition 2347 of 2022 decided on 15 March 2022<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Chief Justice Ritu Raj Awasthi, Justice Krishna Dixit and Justice J. M. Khazi</b></p><p><b>Questions <br></b></p><p><b>1. Whether Hijab is Essential Religious Practice- NO</b></p><p><b>2. Whether the restriction is constitutionally valid? - YES</b></p><p><b>3. Whether Govt Order is arbitrary? - NO</b></p><p><b style=\"background-color: rgb(255, 255, 0);\">Arguments of the petitioners (Hijab followers) before the High Court of Karnataka. </b></p><p><b>1. The Government Order dated 05.02.2022 on headscarf is an affront to the fundamental rights of the Petitioners under Articles 25, 19(1) and 21 of the Constitution.</b></p><p><b>2. Wearing the hijab (headscarf) is an essential religious practice of the Islamic faith which has been judicially upheld. The State cannot restrict the fundamental right under 25(1) by merely raising a facile plea of public order.  A state cannot resile from its duty to maintain law and order and create an environment for the exercise of fundamental rights.</b></p><p><b>3. Secularism, as enshrined in the constitution as a basic feature, does not have a negative connotation but also has a positive aspect in as much as a state is duty-bound to ensure a conducive environment where citizens of all religions can freely practice their faith. </b></p><p><b>4.There is no jurisdiction vested with the State Government to issue impugned GO under the provisions of the Karnataka Education Act, 1983</b></p><p><b>5.Under the tenets of the Islamic law wearing of Hijab (Headscarf) is an essential religious practice. Mulla in Principles of Muhammadan Law, 19th Edition in paragraph 33 notes the sources of Principles of Muhammadan Law states as under:</b></p><p><b>“33. Sources of Mahomedan Law: There are four sources of Mahomedan law, namely. (1) the Koran; (2) Hadis, that is, precepts, action and saying of the Prophet Mahomed, not written down during his lifetime, but preserved by the tradition and handed down by authorized persons; (3) Ijmaa, that is a concurrence of opinion of the companions of Mahomed and his disciples and 4) Qiyas, being analogical deductions derived from a comparison of the first three sources when they did not apply to the particular case Qiyas is reasoning by analogy. Abu Hanifa, the founder of the hanafi sect of sunnis, frequently preferred it to traditions of single authority. The founders of the other sunni sects, however, seldom resorted to it.”</b></p><p><b>6. In para 34 the Rules of interpretation of the Quran are noted which reads as under:</b></p><p><b>“34 . interpretation of the Koran- the courts in administering Mahomedan law, should not, as a rule, attempt to put their own construction on the koran opposition to the express ruling of Mahomedan commentators of great antiquity and high authority. Thus where a passage of the koran ( sura ii,vv 241-242) was interpreted in a particular way both in the Hedaya (a work on the Sunni law) and in the Imamia (a work on the Shia law), it was held by their Lordships of the privy council that it was not open to a Judge to construe it in a different manner”</b></p><p><b>7. As per the verse, 24:39 of the Holy Quran  reproduced in para 25 on page 9 of Writ Petition quotes as follows:</b></p><p><b>“And tell believing women that they should lower their glances, guard their private parts, and not display their charms beyond what [it is acceptable] to reveal; a they should let their headscarves fall to cover their necklines and not reveal their charms except to their husbands, their fathers, their husbands’ fathers, their sons, their husbands’ sons, their brothers, their brothers’ sons, their sisters’ sons, their womenfolk, their slaves, such men as attend them who have no sexual desire, or children who are not yet aware of women’s nakedness; they should not stamp their feet so as to draw attention to any hidden charms. Believers, all of you, turn to God so that you may prosper.”</b></p><p><b>8. Further, chapter 33 verse 59  reads as follows: </b></p><p><b>\"O you Children of Adam! We have bestowed on you raiment to cover your shame as well as to be an adornment to you. But the raiment of righteousness, that is the best. Such are among the Signs of Allah, that they may receive admonition.\" (Quran Chapter 7: verse 26)</b></p><p><b>\"And say to the believing women that they should lower their gaze and guard their modesty; that they should not display their beauty and ornaments except what must ordinarily appear therof; that they should draw their veils over their bosoms and not display their beauty except to their husbands, their fathers, their husbands\' fathers, their sons, their husbands\' sons, their brothers, or their brothers\' sons or their sisters\' sons, or their women or the servants whom their right hands possess, or male servants free of physical needs, or small children who have no sense of the shame of sex, and that they should not strike their feet in order to draw attention to their hidden ornaments. And O you Believers, turn you all together towards Allah, that you may attain Bliss.\" (Quran Chapter 24: verse 31)</b></p><p><b>\"O Prophet, tell your wives and your daughters and the women of the believers to draw their cloaks close round them (when they go abroad). That will be better, so that they may be recognised and not annoyed. Allah is ever Forgiving, Merciful.\" (Quran chapter 33: verse 59)</b></p><p><b>9. The issue as to whether the wearing of a headscarf/Hijab is religious practice had fallen for consideration before the Ld. Single Judge of the Hon’ble Kerala High Court in Amnah Bint Basheer v. Central Board of Secondary Education (CBSE), 2016 SCC OnLine Ker 41117. (see pages 24-34 of the Compilation cases) The Ld. Single after examining the relevant authorities from para 20-28 concludes in para 29 as follows:</b></p><p><b>“29. Thus, the analysis of the Quranic injunctions and the Hadiths would show that it is a farz to cover the head and wear the long sleeved dress except face part and exposing the body otherwise is forbidden (haram). When farz is violated by any action opposite to farz that action becomes forbidden (haram). However, there is a possibility of having different views or opinions for the believers of the Islam based on ijithihad (independent reasoning). This Court is not discarding such views. The possibility of having different propositions is not a ground to deny the freedom, if such propositions have some foundation in the claim. As has been adverted above, the claim of the petitioners is well founded even though, a different view is possible. This Court is only expected to safeguard such freedom based on the Constitution in preference to giving a religious verdict.”</b></p><p><b>10. Further in para 30, the Hon’ble Court observed as under:</b></p><p><b>“30. The discussions as above would show that covering the head and wearing a long sleeve dress by women have been treated as an essential part of the Islamic religion. It follows a fortiori, Article 25(1) protects such prescription of the dress code.”</b></p><p><b>11. The decision of the Ld. Single was affirmed by the Division Bench in Central Board of Secondary Education v. Amnah Bint Basheer, 2016 SCC OnLine Ker 487. (see pages 35-38 of a compilation of cases) </b></p><p><b>12. In  M. Ajmal Khan v. Election Commission of India, 2006 SCC OnLine Mad 794  (see pages 13-23 of the compilation of cases) the Division Bench of the Hon’ble Madras High Court again reiterated that wearing of Headscarf is an essential religious practice. In para 15 of the judgment the Hon’ble High Court observed as under:</b></p><p><b>“15. In 1992 Justice Eusoff of Malaysian High Court delivered a judgment ruling that the freedom of religion guaranteed under Article 11(1) of the Malaysian Constitution was not absolute as Article 11(5) did not authorise any act contrary to any general law relating to public order, public health or morality. The prohibition against wearing attire that covered the face did not affect the appellant\'s constitutional right to profess and practice her religion. This decision of the Malaysian High Court was confirmed by the Malaysian Supreme Court in 1994. It is, thus, seen from the reported material that there is almost unanimity amongst Muslim scholars that purdah is not essential but covering of head by scarf is obligatory.”</b></p><p><b>13. There is overwhelming authority to show that wearing of a headscarf/hijab is a tenet of the Islamic faith and as such completely protected by Article 25(1)</b></p><p><b>14. In Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615 (see pages 75-92 of the compilation of cases) the Hon’ble Supreme Court while upholding the fundamental rights of children belonging to the Jehovah\'s witness which prohibited them from singing the National Anthem quoted with approval the observations in Jamshed Ji v. Soonabai [(1909) 33 Bom 122 and observed as under:</b></p><p><b>“If this is the belief of the community and it is proved undoubtedly to be the belief of the Zoroastrian community, — a secular Judge is bound to accept that belief — it is not for him to sit in judgment on that belief, he has no right to interfere with the conscience of a donor who makes a gift in favour of what he believes to be the advancement of his religion and the welfare of his community or mankind.”</b></p><p><b>We do endorse the view suggested by Davar, J\'s observation that the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Article 25 but subject, of course, to the inhibitions contained therein.”</b></p><p><b>15. What is an essential religious practice has to be ascertained not from the view of an outsider but from the perspective of the believer as long as the belief is genuinely and consciously  held as the part of the practice of the religion, the Hon’ble Supreme Court held that it is the duty of the court to protect the same.</b></p><p><b>16. GO dated 05.02.2022 relies upon three decisions namely (i) Fathima Thasneem v. State of Kerala, 2018 SCC OnLine Ker 5267, (ii) Fathema Hussain Sayed v. Bharat Education Society, AIR 2003 Bom 75 and (iii) Sir M. Venkata Subba Rao, Matriculation Higher Secondary School Staff Assn. v. Sir M. Venkata Subba Rao, Matriculation Higher Secondary School, (2004) 2 CTC 1 and holds in the penultimate paragraph that the aforesaid decisions hold that wearing of headscarf/hijab is not an essential religious practice for the purposes of Article 25.</b></p><p><b>17. The decision in Fathima Thasneem v. State of Kerala, 2018 SCC OnLine Ker 5267  which has been pressed into service by the GO at Sl No. 1 on page 21 is a decision that was rendered in the context of Christian Minority Educational Institution. The same learned judge who authored the decision in Amnah Bint Basheer v. Central Board of Secondary Education (CBSE), AIR 2016 Ker 115 notes the said authority in para 4 and in para 5 the right of minority institution to establish, manage and administer institutions is noted and in that context the Court observes in para 10 that in view of the minority rights granted to the institution under Article 31 the court or any authority cannot insist on the right of the institution to be diluted in any manner by permitting students to attend classes by wearing a dress which is not prescribed  by the minority educational institution. Para 10 of the judgment reads as follows:</b></p><p><b>“10. In such view of the matter, I am of the considered view that the petitioners cannot seek imposition of their individual right as against the larger right of the institution. It is for the institution to decide whether the petitioners can be permitted to attend the classes with the headscarf and full sleeve shirt. It is purely within the domain of the institution to decide on the same. The Court cannot even direct the institution to consider such a request. Therefore, the writ petition must fail. Accordingly, the writ petition is dismissed. If the petitioners approach the institution for Transfer Certificate, the school authority shall issue Transfer Certificate without making any remarks. No doubt, if the petitioners are willing to abide by the school dress code, they shall be permitted to continue in the same school. No costs.\"</b></p><p><b>18. The second judgment which is cited in the GO is Fathema Hussain Sayed v. Bharat Education Society, AIR 2003 Bom 75, the said decision does not all aid the respondent as the said decision was given in the context of the Muslim girls studying in an exclusively girls sections. In this regard Para 7 of the judgment read as follows:</b></p><p><b>“7. A girl student not wearing the head scarf or head covering studying in exclusive girls section cannot be said to in any manner acting inconsistent with the aforesaid verse 31 or violating any injunction provided in Holy Quran. It is not an obligatory overt act enjoined by Muslim religion that a girl studying in all girl section must wear head-covering. The essence of Muslim religion or Islam cannot be said to have been interfered with by directing petitioner not to wear head-scarf in the school.”</b></p><p><b>19. Thirdly, the decision in Sir M. Venkata Subba Rao, Matriculation Higher Secondary School Staff Assn. v. Sir M. Venkata Subba Rao, Matriculation Higher Secondary School, (2004) 2 CTC 1 which has also been relied on in GO is totally inapplicable as it related to prescription of uniforms to the teachers and there was no discussion whatsoever on either wearing Hijab or rights under Article 25 of the Constitution. </b></p><p><b>20. It is submitted that the rights enshrined under Art 25(1) of the Constitution cannot be lightly curbed by merely facile ground of ‘public order’. The State is under a positive obligation to create an environment conducive for the exercise of fundamental rights. In Union of India v. K.M. Shankarappa, (2001) 1 SCC 582 in para 8 the Hon’ble Supreme Court observed as follows:</b></p><p><b>“8. We fail to understand the apprehension expressed by the learned counsel that there may be a law and order situation. Once an expert body has considered the impact of the film on the public and has cleared the film, it is no excuse to say that there may be a law and order situation. It is for the State Government concerned to see that law and order is maintained. In any democratic society there are bound to be divergent views. Merely because a small section of the society has a different view, from that as taken by the Tribunal, and choose to express their views by unlawful means would be no ground for the executive to review or revise a decision of the Tribunal. In such a case, the clear duty of the Government is to ensure that law and order is maintained by taking appropriate actions against persons who choose to breach the law.</b></p><p><b>21.<span style=\"white-space:pre\">	</span>In Lilawati v. State of U.P., (1982) 1 SCC 437 the Hon’ble Supreme Court in para 33 held that the legal rights of the communities cannot be curtailed or prohibited on the facile ground of imminent danger to public peace and tranquillity the authorities have to  make a positive approach to ensure the due exercise of such rights. In para 33 this HC held as under:</b></p><p><b>“33. The instant case, as we have held above, is one where the entitlement of the Shias to their customary rights to perform their religious ceremonies and functions on the plots and structures in question has been established and is the subject-matter of a judicial pronouncement and decree of civil court of competent jurisdiction as also by reason of these properties having been registered as Shia Wakfs for performance of their religious ceremonies and functions and their complaint has been that the power under Section 144 is being exercised in utter disregard of the lawful exercise of their legal rights and every time instead of exercising the power in aid of their rights it is being exercised in suppressing their rights under the pretext of imminent danger to peace and tranquillity of the locality. Having elaborated the principles which should guide the exercise of that power we hope and trust that in future that power will be exercised by the executive magistracy in defence of such established rights of the petitioners and the Shia community and instead of prohibiting or suspending the exercise of such rights on concerned occasions on the facile ground of imminent danger to public peace and tranquillity of the locality the authorities would make a positive approach to the situation and follow the dictum of Turner, C.J. that if they are satisfied that the exercise of the rights is likely to create a riot or breach of peace it would be their duty to take from those from whom disturbance is apprehended security to keep the peace. After all the customary rights claimed by the petitioners partake of the character of the fundamental rights guaranteed under Articles 25 and 26 of the Constitution to the religious denomination of Shia Muslims of Varanasi, a religious minority, who are desirous of freely practising their religious faith and perform their rites, practices, observances and functions without let or hindrance by members belonging to the majority sect of the community, namely, Sunni Muslims, and as such a positive approach is called for on the part of the local authorities. It is only in an extremely extraordinary situation, when other measures are bound to fail, that a total prohibition or suspension of their rights may be resorted to as a last measure.”</b></p><p><b>22. In Indibily Creative (P) Ltd. v. State of W.B., (2020) 12 SCC 436 the Hon’ble Supreme Court beautifully elucidated this concept of duty on the part of the State to ensure to ensure the prevalence of conditions in which of those freedoms can be exercised. In this regard para 50 of the judgment reads as follows:</b></p><p><b>“50. The freedoms which are guaranteed by Article 19 are universal. Article 19(1) stipulates that all citizens shall have the freedoms which it recognises. Political freedoms impose a restraining influence on the State by carving out an area in which the State shall not interfere. Hence, these freedoms are perceived to impose obligations of restraint on the State. But, apart from imposing “negative” restraints on the State these freedoms impose a positive mandate as well. In its capacity as a public authority enforcing the rule of law, the State must ensure that conditions in which these freedoms flourish are maintained. In the space reserved for the free exercise of speech and expression, the State cannot look askance when organised interests threaten the existence of freedom. The State is duty-bound to ensure the prevalence of conditions in which of those freedoms can be exercised. The instruments of the State must be utilised to effectuate the exercise of freedom. When organised interests threaten the properties of theatre owners or the viewing audience with reprisals, it is the plain duty of the State to ensure that speech is not silenced by the fear of the mob. Unless we were to read a positive obligation on the State to create and maintain conditions in which the freedoms guaranteed by the Constitution can be exercised, there is a real danger that art and literature would become victims of intolerance. In the present case, we are of the view that there has been an unconstitutional attempt to invade the fundamental rights of the producers, the actors and the audience. Worse still, by making an example out of them, there has been an attempt to silence criticism and critique. Others who embark upon a similar venture would be subject to the chilling effect of “similar misadventures”. This cannot be countenanced in a free society. Freedom is not a supplicant to power.”</b></p><p><b>23.<span style=\"white-space:pre\">	</span>Public order cannot be the magic incantation that the State can mechanically repeat every time a violation of fundamental rights is alleged. The ground of public order has to be justified on adequate material which material can be looked at by the Constitutional courts in the exercise of the power of judicial review to satisfy itself whether the purported grounds of public order is a mere cloak or a ruse for the State to trample upon the fundamental rights enshrined under the Constitution. Public order is not every breach of law and order. Public order is an aggravated form of disturbance that is much higher than a law and order issue. In Commr. of Police v. C. Anita, (2004) 7 SCC 467 the Hon’ble Supreme Court in para 10 described in jurisprudential terms the concepts of law and order, public order and security of the state as concepts which lie in different concentric circles. Para 10 of the judgment reads as follows:</b></p><p><b>10. “Public order”, “law and order” and the “security of the State” fictionally draw three concentric circles, the largest representing law and order, the next representing public order and the smallest representing security of the State. Every infraction of law must necessarily affect the order, but an act affecting law and order may not necessarily also affect the public order. Likewise, an act may affect public order, but not necessarily the security of the State. The true test is not the kind, but the potentiality of the act in question. One act may affect only individuals while the other, though of a similar kind, may have such an impact that it would disturb the even tempo of the life of the community. This does not mean that there can be no overlapping, in the sense that an act cannot fall under two concepts at the same time. An act, for instance, affecting public order may have an impact that it would affect both public order and the security of the State. (See Kishori Mohan Bera v. State of W.B. [(1972) 3 SCC 845 : 1973 SCC (Cri) 30] , Pushkar Mukherjee v. State of W.B. [(1969) 1 SCC 10 : (1969) 2 SCR 635] , Arun Ghosh v. State of W.B. [(1970) 1 SCC 98 : 1970 SCC (Cri) 67 : (1970) 3 SCR 288] and Nagendra Nath Mondal v. State of W.B. [(1972) 1 SCC 498 : 1972 SCC (Cri) 227] )</b></p><p><b>24. It is submitted that a student silently wearing a hijab/headscarf and attending class cannot in any manner be said to be a practice that disturbs public order.  There has to be a proximate relation between the action complained of and the imposition of restriction on the ground of public order. This is not a case where a religious practice involves a public gathering where dangerous weapons are paraded like in Commr. of Police v. Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC 770). It is submitted that the simple practice of wearing a dress in accordance with once religious faith can bever be ground to invoke public order especially in the context of wearing a headscarf/hijab by women practising the Islamic faith. </b></p><p><b>25. It is well settled that secularism is the basic feature of the Constitution. Secularism in the Indian context has been interpreted by the Hon’ble Supreme Court positively and not in a negative sense. The Hon’ble Supreme Court has held that India’s secular ethos is not based on non-recognition of religions, but that secularism mandates the State to respect all religions as true and protect the practice of such religion as per the tenets of the Constitution.</b></p><p><b>26. The Indian interpretation of secularism stems from the Vedic percept of “Sarva Dharma Sama Bhava”. The attention of this Hon’ble Court is invited to Aruna Roy v. Union of India, (2002) 7 SCC 368 where the Hon’ble Supreme in para 86 held as follows:</b></p><p><b>“86. The word “secularism” used in the preamble of the Constitution is reflected in the provisions contained in Articles 25 to 30 and Part IV-A added to the Constitution containing Article 51-A prescribing fundamental duties of the citizens. It has to be understood on the basis of more than 50 years\' experience of the working of the Constitution. The complete neutrality towards religion and apathy for all kinds of religious teachings in institutions of the State have not helped in removing mutual misunderstanding and intolerance inter se between sections of the people of different religions, faiths and beliefs. “Secularism”, therefore, is susceptible to a positive meaning that is developing understanding and respect towards different religions. The essence of secularism is non-discrimination of people by the State on the basis of religious differences. “Secularism” can be practised by adopting a complete neutral approach towards religions or by a positive approach by making one section of religious people to understand and respect the religion and faith of another section of people. Based on such mutual understanding and respect for each other\'s religious faith, mutual distrust and intolerance can gradually be eliminated.”</b></p><p><b>27. It is respectfully submitted that the right to wear the headscarf/hijab is also protected by Article 19(1)(a) of the Constitution. the right to wear the clothes of once choice is an integral part of the freedom of Appearance which is a part and parcel of Article 19(1)(a). In this context attention of this Hon’ble Court is invited to  para 69 of National Legal Services Authority v. Union of India, (2014) 5 SCC 438  which reads under:</b></p><p><b>“Article 19(1)(a) and Transgenders</b></p><p><b>69. Article 19(1) of the Constitution guarantees certain fundamental rights, subject to the power of the State to impose restrictions from (sic on) exercise of those rights. The rights conferred by Article 19 are not available to any person who is not a citizen of India. Article 19(1) guarantees those great basic rights which are recognised and guaranteed as the natural rights inherent in the status of the citizen of a free country. Article 19(1)(a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which includes one\'s right to expression of his self-identified gender. The self-identified gender can be expressed through dress, words, action or behaviour or any other form. No restriction can be placed on one\'s personal appearance or choice of dressing, subject to the restrictions contained in Article 19(2) of the Constitution.”</b></p><p><b>28. Right to wear a headscarf/hijab also draws sustenance from the fundamental rights under Article 21. In K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1 the Hon’ble Supreme Court in para 373 observed as follows:</b></p><p><b>373. Concerns of privacy arise when the State seeks to intrude into the body of subjects. [Skinner v. Oklahoma, 1942 SCC OnLine US SC 125 : 86 L Ed 1655 : 316 US 535 (1942)“20. There are limits to the extent to which a legislatively represented majority may conduct biological experiments at the expense of the dignity and personality and natural powers of a minority—even those who have been guilty of what the majority defines as crimes.” (SCC OnLine US SC para 20)—Jackson, J.] Corporeal punishments were not unknown to India, their abolition is of a recent vintage. Forced feeding of certain persons by the State raises concerns of privacy. An individual\'s rights to refuse life prolonging medical treatment or terminate his life is another freedom which falls within the zone of the right to privacy. I am conscious of the fact that the issue is pending before this Court. But in various other jurisdictions, there is a huge debate on those issues though it is still a grey area. [ For the legal debate in this area in US, See Chapter 15.11 of American Constitutional Law by Laurence H. Tribe, 2nd Edn.] A woman\'s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy. Similarly, the freedom to choose either to work or not and the freedom to choose the nature of the work are areas of private decision-making process. The right to travel freely within the country or go abroad is an area falling within the right to privacy. The text of our Constitution recognised the freedom to travel throughout the country under Article 19(1)(d). This Court has already recognised that such a right takes within its sweep the right to travel abroad. [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] A person\'s freedom to choose the place of his residence once again is a part of his right to privacy [Williams v. Fears, 1900 SCC OnLine US SC 211 : 45 L Ed 186 : 179 US 270 (1900)—“8. Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty….” (SCC OnLine US SC para 8)] recognised by the Constitution of India under Article 19(1)(e) though the predominant purpose of enumerating the abovementioned two freedoms in Article 19(1) is to disable both the federal and State Governments from creating barriers which are incompatible with the federal nature of our country and its Constitution. The choice of appearance and apparel are also aspects of the right to privacy. The freedom of certain groups of subjects to determine their appearance and apparel (such as keeping long hair and wearing a turban) are protected not as a part of the right to privacy but as a part of their religious belief. Such a freedom need not necessarily be based on religious beliefs falling under Article 25. Informational traces are also an area which is the subject-matter of huge debate in various jurisdictions falling within the realm of the right to privacy, such data is as personal as that of the choice of appearance and apparel. Telephone tappings and internet hacking by State, of personal data is another area which falls within the realm of privacy. The instant reference arises out of such an attempt by the Union of India to collect biometric data regarding all the residents of this country. The abovementioned are some of the areas where some interest of privacy exists. The examples given above indicate to some extent the nature and scope of the right to privacy.</b></p><p><b>29. The impugned GO which has been purportedly issued under the provisions of the Section 7 read with Section 133 of the Karnataka Education Act, 1983 is totally illegal in as much as the Act does not at all empower the State under the provisions of this Act to regulate the dress of the Students. Attention of this Hon’ble court in invited to Section 7 (1) which reads as follows:</b></p><p><b>7. Government to prescribe curricula, etc.- (1) Subject to such rules as may be prescribed, the State Government may, in respect of educational institutions, by order specify,- </b></p><p><b>(a)  the curricula, syllabi and text books for any course of instruction; </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(b) the duration of such course;  </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(c) the medium of instruction;  </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(d) the scheme of examinations and evaluation; </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(e) the number of working days and working hours in an academic year;  </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(f) the rates at which tuition and other fees, building fund or other amount, by whatever name called, may be charged from students or on behalf of students;  </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(g) the staff pattern (teaching and non-teaching) and the educational and other qualifications for different posts;  </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(h) the facilities to be provided, such as buildings, sanitary arrangments, playground, furniture, equipment, library, teaching aid, laboratory and workshops; </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(i) such other matters as are considered necessary</b></p><p><b>30. Bare reading of (a) to (h) clearly shows that the GO is not covered under any of the provisions above. It is submitted that the power to specify curricula syllabi cannot by any stretch of imagination include the right to circumscribe the choice of dress of students belonging to a particular faith. It is further submitted that ground (i) which states that such other matters as are considered necessary has to be read ejusdem generis to (a) to (h) and cannot be said to independent source of power.</b></p><p><b>31. Further Section 133 (2) of the Act only enables the State to give directions necessary and expedient for carrying out the purposes of the Act or to give effect to any of the provisions contained in the Act.</b></p><p><b>32. No provision in the Act permits the State to regulate the dress of students in Government colleges and prohibits the wearing of hijab/headscarf. </b></p><p><b>33. No notice has been given under 133(2) as is said to be mandated by this Hon’ble Court in para 5 of  Condominium of Residents and Employees of Academy of General Education v. State of Karnataka, ILR 2001 Kar 5677.</b></p><p><b>34. The impugned GO cannot pass the constitutional muster and deserves to be struck down. </b></p><p><b>35. The Muslim girl students wearing headscarf/hijab were permitted inside the school but were segregated and were made to sit in a separate class/hall. It is submitted that such segregation is a complete affront to the right to equality enshrined under Article 14 of the Constitution and amounts to religious apartheid.</b></p><p><b>36. It is submitted that segregation on religious line is total anthesis of rule of law and may be dealt with an iron hand by this Hon’ble Court.</b></p><p><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"background-color: rgb(255, 255, 0);\">Arguments on behalf of State of Karnataka</span>  </span><br></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Durgah Committee, Ajmer and Another v. Syed Hussain Ali and Others AIR 1961 SC 1402. Para 33. We will first take the argument about the infringement of the fundamental right to freedom of religion. Articles 25 and 26 together safeguard the citizen\'s right to freedom of religion. Under Article 25(1), subject to public order, morality and health and to the other provisions of Part 3, all persons are equally entitled to freedom of conscience and their right freely to profess, practise and propagate religion. This freedom guarantees to every citizen not only the right to entertain such religious beliefs as may appeal to his conscience but also affords him the right to exhibit his belief in his conduct by such outward acts as may appear to him proper in order to spread his ideas for the benefit of others. Article 26 provides that subject to public order, morality and health, every religious denomination or any section thereof shall have the right—</b><br></p><p><b>(a) to establish and maintain institutions for religious and charitable purposes;<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(b) to manage its own affairs in matters of religion;<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(c) to own and acquire movable and immovable property; and</b></p><p><b>The four clauses of this article constitute the fundamental freedom guaranteed to every religious denomination or any section thereof to manage its own affairs. It is entitled to establish institutions for religious purposes, it is entitled to manage its own affairs in the matters of religion, it is entitled to own and acquire movable and immovable property and to administer such property in accordance with law. What the expression “religious denomination” means has been considered by this Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri ShirurMutt [(1954) SCR 1005] . Mukherjea, J., as he then was, who spoke for the Court, has quoted with approval the dictionary meaning of the word “denomination” which says that a “denomination” is a collection of individuals classed together under the same name, a religious sect or body having a common faith and organisation and designated by a distinctive name. The learned Judge has added that Article 26 contemplates not merely a religious denomination but also a section thereof. Dealing with the questions as to what are the matters of religion, the learned Judge observed that the word “religion” has not been defined in the Constitution, and it is a term which is hardly susceptible of any rigid definition. Religion, according to him, is a matter of faith with individuals or communities and it is not necessarily theistic. It undoubtedly has its basis in a system of pleas or doctrines which are regarded by those who profess that religion as conducive to their spiritual well-being, but it is not correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress (pp. 1023, 1024). Dealing with the same topic, though in another context, in Venkataramna Devaru v. State of Mysore [(1958) SCR 895] Venkatarama Aiyar, J. spoke for the Court in the same vein and observed that it was settled that matters of religion in Article 26(b) include even practices which are regarded by the community as part of its religion, and in support of this statement the learned Judge referred to the observations of Mukherjea, J., which we have already cited. Whilst we are dealing with this point it may not be out of place incidentally to strike a note of caution and observe that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Article 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.</b></p><p><b>Commissioner of Police and Others v. AcharayaJagadishwarananda Avadhuta and Another (2004) 12 SCC 770. Para 9. The protection guaranteed under Articles 25 and 26 of the Constitution is not confined to matters of doctrine or belief but extends to acts done in pursuance of religion and, therefore, contains a guarantee for rituals, observances, ceremonies and modes of worship which are essential or integral part of religion. What constitutes an integral or essential part of religion has to be determined with reference to its doctrines, practices, tenets, historical background, etc. of the given religion. (See generally the Constitution Bench decisions in Commr., H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [AIR 1954 SC 282 : 1954 SCR 1005] , Sardar Syedna Taher Saifuddin Saheb v. State of Bombay [AIR 1962 SC 853 : 1962 Supp (2) SCR 496] and Seshammal v. State of T.N. [(1972) 2 SCC 11 : AIR 1972 SC 1586] regarding those aspects that are to be looked into so as to determine whether a part or practice is essential or not.) What is meant by “an essential part or practices of a religion” is now the matter for elucidation. Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices that the superstructure of a religion is built, without which a religion will be no religion. Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part. There cannot be additions or subtractions to such part because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts which are protected by the Constitution. Nobody can say that an essential part or practice of one\'s religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the “core” of religion whereupon the belief is based and religion is founded upon. They could only be treated as mere embellishments to the non-essential (sic essential) part or practices.</b></p><p><b>Javed and Others v. State of Haryana and Others. (2003) 8 SCC 369. Para 44. The Muslim law permits marrying four women. The personal law nowhere mandates or dictates it as a duty to perform four marriages. No religious scripture or authority has been brought to our notice which provides that marrying less than four women or abstaining from procreating a child from each and every wife in case of permitted bigamy or polygamy would be irreligious or offensive to the dictates of the religion. In our view, the question of the impugned provision of the Haryana Act being violative of Article 25 does not arise. We may have a reference to a few decided cases.</b></p><p><b>45. The meaning of religion — the term as employed in Article 25 and the nature of protection conferred by Article 25 stands settled by the pronouncement of the Constitution Bench decision in M. Ismail Faruqui(Dr) v. Union of India [(1994) 6 SCC 360] . Article 25 merely protects the freedom to practise rituals and ceremonies etc. which are only the integral parts of the religion. Article 25 of the Constitution of India will, therefore, not have any application in the instant case.</b></p><p><b>A.S Narayana Deekshitulu v. State of Andhra Pradesh and Others (1996) 9 SCC 548. Para 86. A religion undoubtedly has its basis in a system of beliefs and doctrine which are regarded by those who profess religion to be conducive to their spiritual well-being. A religion is not merely an opinion, doctrine or belief. It has outward expression in acts as well. It is not every aspect of religion that has been safeguarded by Articles 25 and 26 nor has the Constitution provided that every religious activity cannot be interfered with. Religion, therefore, cannot be construed in the context of Articles 25 and 26 in its strict and etymological sense. Every religion must believe in a conscience and ethical and moral precepts. Therefore, whatever binds a man to his own conscience and whatever moral or ethical principles regulate the lives of men believing in that theistic, conscience or religious belief that alone can constitute religion as understood in the Constitution which fosters feeling of brotherhood, amity, fraternity and equality of all persons which find their foothold in secular aspect of the Constitution. Secular activities and aspects do not constitute religion which brings under its own cloak every human activity. There is nothing which a man can do, whether in the way of wearing clothes or food or drink, which is not considered a religious activity. Every mundane or human activity was not intended to be protected by the Constitution under the guise of religion. The approach to construe the protection of religion or matters of religion or religious practices guaranteed by Articles 25 and 26 must be viewed with pragmatism since by the very nature of things, it would be extremely difficult, if not impossible, to define the expression religion or matters of religion or religious belief or practice.</b></p><p><b>87. In pluralistic society like India, as stated earlier, there are numerous religious groups who practise diverse forms of worship or practise religions, rituals, rites etc.; even among Hindus, different denominantsand sects residing within the country or abroad profess different religious faiths, beliefs, practices. They seek to identify religion with what may in substance be mere facets of religion. It would, therefore, be difficult to devise a definition of religion which would be regarded as applicable to all religions or matters of religious practices. To one class of persons a mere dogma or precept or a doctrine may be predominant in the matter of religion; to others, rituals or ceremonies may be predominant facets of religion; and to yet another class of persons a code of conduct or a mode of life may constitute religion. Even to different persons professing the same religious faith some of the facets of religion may have varying significance. It may not be possible, therefore, to devise a precise definition of universal application as to what is religion and what are matters of religious belief or religious practice. That is far from saying that it is not possible to state with reasonable certainty the limits within which the Constitution conferred a right to profess religion. Therefore, the right to religion guaranteed under Article 25 or 26 is not an absolute or unfettered right to propagating religion which is subject to legislation by the State limiting or regulating any activity — economic, financial, political or secular which are associated with religious belief, faith, practice or custom. They are subject to reform on social welfare by appropriate legislation by the State. Though religious practices and performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in a particular doctrine, that by itself is not conclusive or decisive. What are essential parts of religion or religious belief or matters of religion and religious practice is essentially a question of fact to be considered in the context in which the question has arisen and the evidence — factual or legislative or historic — presented in that context is required to be considered and a decision reached.</b></p><p><b>Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala, (2019) 11 SCC 1 Para. 176.6. It is only the essential part of religion, as distinguished from secular activities, that is the subject-matter of the fundamental right. Superstitious beliefs which are extraneous, unnecessary accretions to religion cannot be considered as essential parts of religion. Matters that are essential to religious faith and/or belief are to be judged on evidence before a court of law by what the community professing the religion itself has to say as to the essentiality of such belief. One test that has been evolved would be to remove the particular belief stated to be an essential belief from the religion—would the religion remain the same or would it be altered? Equally, if different groups of a religious community speak with different voices on the essentiality aspect presented before the Court, the Court is then to decide as to whether such matter is or is not essential. Religious activities may also be mixed up with secular activities, in which case the dominant nature of the activity test is to be applied. The Court should take a common-sense view and be actuated by considerations of practical necessity.</b></p><p><b>266. This case marked a nuance of the essential practices doctrine laid down in Shirt Mutt [Commr., Hindu Religious Endowments v. Sri LakshmindraThirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005 :AIR 1954 SC 282] , where a denomination was granted “complete autonomy” to determine which practices it considered to be essential. In ShirurMutt [Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005 : AIR 1954 SC 282] , the autonomy to decide what is essential to religion was coupled with the definition of religion itself, which was to comprehend belief and practice. In Devaru [Shri Venkataramana Devaru v. State of Mysore, 1958 SCR 895 : AIR 1958 SC 255] , the Court laid down a crucial precedent in carving out its role in examining the essentiality of such practices. While the Court would take into consideration the views of a religious community in determining whether a practice qualified as essential, this would not be determinative.</b></p><p><b>267. Prior to Devaru [Shri VenkataramanaDevaru v. State of Mysore, 1958 SCR 895 : AIR 1958 SC 255] , this Court used the word “essential” to distinguish between religious and secular practices in order to circumscribe the extent of State intervention in religious matters. The shift in judicial approach took place when “essentially religious” (as distinct from the secular) became conflated with “essential to religion”. The Court\'s enquiry into the essentiality of the practice in question represented a shift in the test, which now enjoined upon the Court the duty to decide which religious practices would be afforded constitutional protection, based on the determination of what constitutes an essential religious practice.</b></p><p><b>270. Before parting with the judgment, Gajendragadkar, J. issued an important “note of caution” : (Durgah Committee case [DurgahCommittee, Ajmer v. Hussain Ali, (1962) 1 SCR 383 : AIR 1961 SC 1402] , AIR p. 1415, para 33)</b></p><p><b>“33. In order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Article 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.”</b></p><p><b>This statement pushed the essential religious practices doctrine in a new direction. The Court distinguished, for the first time, between “superstitious beliefs” and religious practice. Apart from engaging in a judicial enquiry to determine whether a practice claimed to be essential was in fact grounded in religious scriptures, beliefs, and tenets, the Court would “carefully scrutinise” that the practice claiming constitutional protection does not claim superstition as its base. This was considered a necessary safeguard to ensure that superstitious beliefs would not be afforded constitutional protection in the garb of an essential religious practice. The Court also emphasised that purely secular matters clothed with a religious form do not enjoy protection as an essential part of religion.</b></p><p><b>272. In a strong dissent, Sinha, C.J. concluded that the matter of excommunication was not purely of a religious nature. Clarifying that his analysis was confined to the civil rights of the members of the community, Sinha, C.J. opined : (Sardar SyednaTaher case [Syedna Taher Saifuddin Saheb v. State of Bombay, 1962 Supp (2) SCR 496 : AIR 1962 SC 853] , AIR pp. 860-61, para 11)</b></p><p><b>“11. … The impugned Act, thus, has given full effect to modern notions of individual freedom to choose one\'s way of life and to do away with all those undue and outmoded interferences with liberty of conscience, faith and belief. It is also aimed at ensuring human dignity and removing all those restrictions which prevent a person from living his own life so long as he did not interfere with similar rights of others.”</b></p><p><b>Sinha, C.J. drew a distinction between “matters of religion” as protected under Article 26(b) and activities associated with religion, though not intimately connected with it : (AIR p. 864, para 18)</b></p><p><b>“18. … Now, Article 26(b) itself would seem to indicate that a religious denomination has to deal not only with matters of religion, but other matters connected with religion, like laying down rules and regulations for the conduct of its members and the penalties attached to infringement of those rules, managing property owned and possessed by the religious community, etc., etc. We have therefore, to draw a line of demarcation between practices consisting of rites and ceremonies connected with the particular kind of worship, which is the tenet of the religious community, and practices in other matters which may touch the religious institutions at several points, but which are not intimately</b></p><p><b>273.Durgah Committee [Durgah Committee, Ajmer v. Hussain Ali, (1962) 1 SCR 383 : AIR 1961 SC 1402] and Saifuddin [Syedna Taher Saifuddin Saheb v. State of Bombay, 1962 Supp (2) SCR 496 : AIR 1962 SC 853] established the role of this Court in scrutinising claims of practices essential to religion in order to deny constitutional protection to those practices that were not strictly based in religion. Ascertaining what was “essential” to a religious denomination “according to its own tenets” required a scrutiny of its religious texts. DurgahCommittee [Durgah Committee, Ajmer v. Hussain Ali, (1962) 1 SCR 383 : AIR 1961 SC 1402] laid down that the court would “carefully scrutinise” claims to deny constitutional protection to those claims which are religious but spring from superstitious beliefs and are not essential to religion. Saifuddin [Syedna Taher Saifuddin Saheb v. State of Bombay, 1962 Supp (2) SCR 496 : AIR 1962 SC 853] laid down that a practice grounded on an obnoxious social rule or practice may be within the ambit of social reform that the State may carry out. This view infuses the doctrine with a safeguard against claims by religious denominations that any practice with a religious undertone would fall within the protection afforded by Article 26(b) to them to “manage its own affairs in matters of religion”.</b></p><p><b>280. The question of the essential religious nature of the tandava dance was considered again in 2004, in Commr. of Police v. Acharya Jagadishwarananda Avadhuta [Commr. of Police v. Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC 770] [Avadhuta (2)]. After Avadhuta(1) [Acharya Jagadishwaranand Avadhuta v. Commr. of Police, (1983) 4 SCC 522 : 1984 SCC (Cri) 1] , the religious book of the Anand Margis, Carya-Carya, was revised to prescribe the Anand tandava as an essential religious practice. Laying emphasis on the “essential” nature of the practice claimed, the majority, in a 2-1 split verdict, held that the practice must be of such a nature that its absence would result in a fundamental change in the character of that religion : [Avadhuta (2) case [Commr. of Police v. Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC 770] , SCC pp. 782-83, para 9]</b></p><p><b>“9. … Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices that the superstructure of a religion is built, without which a religion will be no religion. Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part. There cannot be additions or subtractions to such part because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts which are protected by the Constitution. … Such alterable parts or practices are definitely not the “core” of religion whereupon the belief is based and religion is founded upon. They could only be treated as mere embellishments to the non-essential (sic essential) part or practices.”</b></p><p><b>The essentiality test came to be linked to the “fundamental character” of the religion. If the abrogation of a practice does not change the fundamental nature of the religion, the practice itself is not essential. Rejecting the claim of the Anand Margis, the majority held that the Ananda Margi order was in existence (1955-66) even without the practice of the tandava dance. Hence, such a practice would not constitute the “core” of the religion. Further, religious groups could not be permitted to alter their religious doctrine to recognise certain religious practices, in order to afford them constitutional protection.</b></p><p><b>285 [Ed. : Para 285 corrected vide Official Corrigendum No. F.3/Ed.B.J./104/2018 dated 19-2-2019.] . In its jurisprudence on religious freedom, this Court has evolved a body of principles which define the freedom of religion under Article 25 and Article 26 to practices “essential” to the religion. The Constitution has been held to protect not only freedom of religious belief, but acts done in pursuance of those beliefs. While the views of a religious denomination are to be taken into consideration in determining whether a practice is essential, those views are not determinative of its essentiality. The Court has assumed a central role in determining what is or is not essential to religious belief. Intrinsic to the role which the Court has carved out, it has sought to distinguish between what is religious and what is a secular practice, even if it is associated with a religious activity. Going further, the Court has enquired into whether a practice is essential to religion. Essentiality of the practice would, as the Court has held, depends on whether the fundamental character of a religion would be altered, if it were not observed. Above all, there is an emphasis on constitutional legitimacy, which underscores the need to preserve the basic constitutional values associated with the dignity of the individual. The ephemeral distinction between religion and superstition becomes more coherent in terms of the need to preserve fundamental constitutional values associated with human liberty. </b></p><p><b>286. In determining the essentiality of a practice, it is crucial to consider whether the practice is prescribed to be of an obligatory nature within that religion. If a practice is optional, it has been held that it cannot be said to be “essential” to a religion. A practice claimed to be essential must be such that the nature of the religion would be altered in the absence of that practice. If there is a fundamental change in the character of the religion, only then can such a practice be claimed to be an “essential” part of that religion.</b></p><p><b style=\"background-color: rgb(255, 255, 0);\">Arguments of Collage Development and Management Committee opposing the petitioners before the Karnataka High Court</b></p><p><b>Mr. Sajan Poovayya, Senior Advocate who appeared for the President and Vice President of collage development and management committee today, completely annihilated the arguments of the petitioners. His fundamental submission was that his school is committed to impart Secular education and it cannot allow the students to wear whatever they want depending on their religion. If allowed, the same would destroy the cohabitation expected in educational institution. Mr. Sajan Poovayya arguments are here;</b></p><p><b>Mr. Poovayya quoted from the judgment rendered by the Hon’ble Supreme Court of India in SR Bommai v. Union of India, (1994) 3 SCC 1 which shed considerable light on the understanding of \"secularism\" in the constitutional sense. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">It is also apposite to refer to Article 39(f) – \"that children are given </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity …\" placed in Part IV – Directive </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Principles of State Policy of the Constitution of India. The </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">intersection of Directive Principles of State Policy and nation </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">building has been referred to time and time again, including in </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Article 39(f) was introduced by the Forty-Second Amendment, i.e., </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the very amendment which expressly introduced the word \"Secular\" </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">into the Preamble. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In imparting secular education, the ideals that the State should seek </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to instil amongst children, are informed by inter alia the following </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">provisions of the Constitution: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">a. Core constitutional principles which have been held to be not </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">only a part of part III but also a part of the basic structure such </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as ‘secularism’; </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">b. Children should turn out to be students not just capable of but </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">also inclined to perform fundamental duties (Article 51A) such </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as: </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">i. Uphold the unity and integrity of India (Article 51A(c)); </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ii. To promote spirit of harmony and the spirit of common </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">brotherhood amongst all the people of India transcending </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">religious, linguistic and regional or sectional diversities; </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to renounce practices derogatory to the dignity of women </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(Article 51A(e)); </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">iii. To develop scientific temper, humanism and the spirit of </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">inquiry and reform (Article 51A(h)); </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">iv. To strive towards excellence in all spheres of individual </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and collective activity do that the nation constantly rises </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to higher levels of endeavour and achievement </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(Article 51A(j)). </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">c. Likewise, the Karnataka Education Act, 1983 enlists inter alia </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the endeavour to cultivate a scientific and secular outlook </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">through education. </b></p>', '52ee39734a0f3e3b2f352d1566161d24.JPG', '398362f4196c33ea41e06922b0b8fe00.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-15', 1, '', '', '2022-03-15 04:36:29', '2022-03-18 00:04:43');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1418, 'xEo7CreTQisMIEtfKOc05a9mk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Penal Code. Section 34 is not attracted when final outcome or offence committed Is distinctly remote and unconnected with common intention. Supreme Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Krishnamurthy Gunodu and Others Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 288 of 2022 decided on 16 February 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sanjiv Khanna and Justice Bela M Trivedi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. This appeal by Krishnamurthy (also described as Krishna Murthy),\r\nGopala and Thimmappa takes exception to the judgment dated\r\n20th February 2021 passed in Criminal Appeal No. 200147 of\r\n2017, whereby the Division Bench of the High Court of Karnataka,\r\nKalaburagi Bench, has affirmed their conviction under Section 302\r\nread with Section 34 and individually for the offences under\r\nSections 447, 504, 506 and 341 of the Indian Penal Code, 1860\r\n(for short, ‘IPC’).\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Having examined the evidence in detail, we agree that\r\nKrishnamurthy has been rightly convicted under the aforesaid <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Sections, including Section 302 of the IPC. Testimonies of\r\nChannamma (PW-1), Ramanjaneya (PW-4), Dullaiah (PW-6) and\r\nDodda Narasimha (PW-7), all eyewitnesses, implicate\r\nKrishnamurthy as the perpetrator who had assaulted the\r\ndeceased-Venkatarama after he had fallen down. In view of our\r\nanalysis of the testimonies in the ensuing paragraphs, we have\r\nreservations in entirely relying upon the depositions of Dullaiah\r\n(PW-6) and Dodda Narasimha (PW-7). But we have no\r\nreservation in accepting the depositions of Channamma (PW-1)\r\nand Ramanjaneya (PW-4) implicating Krishnamurthy. We have\r\nsubsequently reproduced the relevant portions of their\r\ndepositions. Suffice at this stage is to aver that the specific acts\r\nattributed to Krishnamurthy are that after Venkatarama had fallendown, he had kicked and assaulted him on the neck with his legs\r\nand hands. The version on the role of Krishnamurthy deposed by\r\nChannamma (PW-1) and Ramanjaneya (PW-4) gets corroboration\r\nfrom the Post-Mortem Report (Exhibit P-6) and the deposition of\r\nDr. Sharanabasava (PW-9) who had conducted the post-mortem.\r\nVenkatarama had suffered abraded contusion of reddish blue\r\ncolour on the neck area and abraded contusion reddish in colour\r\non the left side of the chest. Internal dissection had revealed\r\nprofuse bleeding over the muscles of the neck surrounding the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">arteries that were ruptured. The left side ribs 4, 5, 6 and 7 were\r\nfractured. The utral part of the stemum was broken into two\r\npieces. The spinal cord at the level of C-5, C-6 and C-7 was\r\ncontused, edematous and elongated. The cause of death was\r\nopined as haemorrhagic shock as a result of multiple injuries.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. The assault by Krishnamurthy, who though not armed with any\r\nweapon, was fearsome, brutal and cruel. He had pinned down and\r\ntromped Venkatarama using his legs and hands fracturing four\r\nribs, contusing, and injuring the spinal cord, the chest, and the\r\nneck of the deceased. Given that the injuries caused were\r\nintended, third limb of Section 300 IPC would get attracted. The\r\npost mortem report and deposition of Dr. Sharanabasava (PW-9)\r\nprove the cause of death on account of injuries caused in the\r\nchest region, asphyxia, and facture of bones. The death was\r\ninstantaneous, as has been deposed by Channamma (PW-1) and\r\nRamanjaneya (PW-4). The injuries were sufficient in ordinary\r\ncourse of nature to have caused death. The death of Venkatarama\r\nis homicidal as a result and direct consequence of the injuries\r\ninflicted by Krishnamurthy.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. This brings us to the role and acts of Gopala and Thimmappa and\r\nwhether they can be individually convicted for murder of\r\nVenkatarama. We begin by referring to the depositions of Dullaiah <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(PW-6) and Dodda Narasimha (PW-7), which are verbatim\r\nidentical, and, therefore, the suspicion that the said witnesses\r\nwere prompted. However, we would not doubt their presence at\r\nthe place of occurrence as their presence was natural, they being\r\nfarmers who were undertaking cultivation in the adjacent fields.\r\nOn the actual occurrence they both have deposed:\r\n“While on my way, Venkatarama, his wife, and their\r\nson Ramanjineya (sic) were in the land on Gangawara\r\nroad. Then, accused Thimmappa, ‘A’ (identity\r\nsuppressed being a juvenile) were holding\r\nVenkataramana’s (sic) hands. Accused Gopala was\r\npulling down Venkataramana’s (sic) legs and as such\r\nhe fell down on his back. Then, Gopala, Krishnamurthy\r\nassaulted with hands, kicked with legs and attacked\r\nwith their hands when Venkataramana (sic) had fallen\r\ndown. At that time, I along with Ramanjineya (sic),\r\nDodda Narasimhalu were present. We did not try to\r\nsave hence since accused had threatened us not to go\r\nnear them.”\r\nDullaiah (PW-6) and Dodda Narasimha (PW-7) in their\r\ncross-examination had vacillated and hesitantly accepted that they\r\ndid not know as to who amongst the accused ‘A’ and Thimmappa\r\nhad held the hands of the deceased and which one had pulled the\r\nlegs of the deceased making him fall down. They testified that the\r\naccused ‘Venkatarama’ kicked with both legs and assaulted with\r\nhands. This statement is erroneous and could well be a\r\ntypographical error as Venkatarama was the deceased and not an\r\naccused. However, it appears from the depositions that one of the\r\naccused had kicked with both legs and assaulted the deceased </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">with his hands, a fact affirmatively deposed to by Channamma</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. Channamma (PW-1), in her examination in chief on the\r\noccurrence and the acts and role of the accused, has deposed:\r\n“Accused No.3 Thimmappa and accused No.4 ‘A’\r\ntwisted back my husband’s both hands and held them.\r\nAccused No.2 Gopala pulled my husband down\r\nthrough his leg. Accused No.1 Krishnamurthy stamped\r\nmy husband’s neck with his left leg and jumped upon\r\nit.”\r\nIn her cross-examination she denied the suggestion that\r\nThimmappa and ‘A’, had neither twisted nor held the hands of her\r\nhusband and Gopala had not pulled him down with his legs. She\r\nhas also denied that Krishnamurthy had not jumped on her\r\nhusband’s legs and stomped with his legs.\r\nRamanjaneya (PW-4), about twelve years old when his\r\nevidence was recorded, avers that he along with his mother and\r\nfather were at their farm land harvesting and piling up Sajje crop.\r\nAt about noon, the four accused came to the spot and had\r\nthreatened their father who had tried to run away. Thereupon:\r\n“All the four of them chased him and accused\r\nThimmappa and ‘A’ held both hands of my father.\r\nAccused Gopala held both legs of my father and\r\npulled him. Then, my father pleaded and fell down with\r\nhis head down. Accused Krishnamurthy kicked with his\r\nhands and legs and assaulted heavily on the neck. At\r\nthat time, when my mother went ahead to save him, all\r\nthe accused persons threatened to do away with our\r\nlives. Then, afraid by the same, we did not go ahead.\r\nAccused Thimmappa told that, my father is dead and\r\nleft and went away.”</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. We would accept the versions given by Channamma (PW-1) and\r\nRamanjaneya (PW-4), albeit record that there could be some\r\nminor exaggerations. However, what is clearly discernible, and\r\nwhich all eyewitnesses including Dullaiah (PW-6) and Dodda\r\nNarasimha (PW-7) accept, is that the accused were unarmed and\r\nthey did not even have a stick with them. This indicates absence\r\nof a premediated attack to murder Venkatarama. Further, the roles\r\nattributed to Thimmappa and Gopala are different from the brutal\r\nassault leashed by Krishnamurthy after Venkatarama had fallen\r\ndown. Roles of Thimmappa and ‘A’, as per the versions given by\r\nChannamma (PW-1) and Ramanjaneya (PW-4), were limited to\r\nholding and twisting the hands of Venkatarama. Gopala had pulled\r\ndown the deceased by holding his legs. As per Dullaiah (PW-6)\r\nand Dodda Narasimha (PW-7), Gopala and Krishnamurthy had\r\nthen assaulted Venkatarama, but as per the versions of\r\nChannamma (PW-1) and Ramanjaneya (PW-4), only\r\nKrishnamurthy had assaulted and not Gopala. All of them in\r\nunison state that Thimmappa had not participated in the assault\r\nafter Venkatarama had fallen down. Given the above discrepancy\r\nand for reasons recorded above casting doubt on the versions\r\ngiven by Dullaiah (PW-6) and Dodda Narasimha (PW-7), we\r\naccept that it was Krishnamurthy alone who had swung into <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">action, kicked and assaulted the deceased with his hands and\r\nlegs and stomped with his left leg on his neck. He had also\r\njumped on his chest. The post mortem report and the deposition\r\nof Dr. Sharanabasava (PW-9) have attributed the death of the\r\ndeceased on account of injuries caused by Krishnamurthy. The\r\ndeceased had not suffered any fracture on his hands, arms or\r\nlegs. Thus, we accept that Thimmappa and Gopala had not\r\nassaulted Venkatarama after he had fallen down and were not\r\nresponsible for the injuries suffered by Venkatarama resulting in\r\nhis death.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. The underlying basic assumption or foundation in criminal law is\r\nthe principle of personal culpability. A person is criminally\r\nresponsible for act or transactions in which he is personally\r\nengaged or in some other way had participated. However, there\r\nare various modes and capacities in which a person can\r\nparticipate in a crime. He can instigate, be a facilitator or\r\notherwise aid execution of a crime. Section 34 IPC incorporates\r\nthe principle of shared intent, that is, common design between the\r\ntwo perpetrators, which makes the second or other participants\r\nalso an equal or joint perpetrator as the main or principal\r\nperpetrator1\r\n. The question which arises is whether Thimmappa <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and Gopala can be attributed common intention under Section 34\r\nIPC to commit murder under Section 300 or even offence under\r\nSection 304 IPC.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. In Suresh and Another v. State of Uttar Pradesh,\r\n2 R.P. Sethi, J.\r\nin his concurring judgment (for himself and B.N. Agarwal, J.) on\r\nthe question of common intention has observed:\r\n“38. Section 34 of the Penal Code, 1860 recognises\r\nthe principle of vicarious liability in criminal\r\njurisprudence. It makes a person liable for action of an\r\noffence not committed by him but by another person\r\nwith whom he shared the common intention. It is a rule\r\nof evidence and does not create a substantive offence.\r\nThe section gives statutory recognition to the\r\ncommonsense principle that if more than two persons\r\nintentionally do a thing jointly, it is just the same as if\r\neach of them had done it individually. There is no\r\ngainsaying that a common intention presupposes prior\r\nconcert, which requires a prearranged plan of the\r\naccused participating in an offence. Such preconcert\r\nor preplanning may develop on the spot or during the\r\ncourse of commission of the offence but the crucial\r\ntest is that such plan must precede the act constituting\r\nan offence. Common intention can be formed\r\npreviously or in the course of occurrence and on the\r\nspur of the moment. The existence of a common\r\nintention is a question of fact in each case to be\r\nproved mainly as a matter of inference from the\r\ncircumstances of the case.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>39. The dominant feature for attracting Section 34 of\r\nthe Penal Code, 1860 (hereinafter referred to as “the\r\nCode”) is the element of participation in absence\r\nresulting in the ultimate “criminal act”. The “act”\r\nreferred to in the later part of Section 34 means the\r\nultimate criminal act with which the accused is\r\ncharged of sharing the common intention. The\r\naccused is, therefore, made responsible for the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ultimate criminal act done by several persons in\r\nfurtherance of the common intention of all. The section\r\ndoes not envisage the separate act by all the accused\r\npersons for becoming responsible for the ultimate\r\ncriminal act. If such an interpretation is accepted, the\r\npurpose of Section 34 shall be rendered infructuous.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>40. Participation in the crime in furtherance of the\r\ncommon intention cannot conceive of some\r\nindependent criminal act by all accused persons,\r\nbesides the ultimate criminal act because for that\r\nindividual act law takes care of making such accused\r\nresponsible under the other provisions of the Code.\r\nThe word “act” used in Section 34 denotes a series of\r\nacts as a single act. What is required under law is that\r\nthe accused persons sharing the common intention\r\nmust be physically present at the scene of occurrence\r\nand be shown not to have dissuaded themselves from\r\nthe intended criminal act for which they shared the\r\ncommon intention. Culpability under Section 34 cannot\r\nbe excluded by mere distance from the scene of\r\noccurrence. The presumption of constructive intention,\r\nhowever, has to be arrived at only when the court can,\r\nwith judicial servitude, hold that the accused must\r\nhave preconceived the result that ensued in\r\nfurtherance of the common intention. A Division Bench\r\nof the Patna High Court\r\nin SatrughanPatar v. Emperor held that it is only when\r\na court with some certainty holds that a particular\r\naccused must have preconceived or premeditated the\r\nresult which ensued or acted in concert with others in\r\norder to bring about that result, that Section 34 may be\r\napplied.”\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. Appropriate at this stage would be reference to an earlier decision\r\nof this Court in Afrahim Sheikh and Others v. State of West\r\nBengal3\r\n, which referred to with approval the following quote on\r\nthe expression “act” explained by Judicial Commissioner\r\nin Barendra Kumar Ghosh v. The King-Emperor4\r\n: </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“criminal act means that unity of criminal\r\nbehaviour, which results in something, for which\r\nan individual would be punishable, if it were all\r\ndone by himself alone i.e. a criminal offence”.\r\nThis “criminal act” under Section 34 IPC, it was held, applies\r\nwhere a criminal act is done by several persons in furtherance of\r\ncommon intention of all. The criminal offence is the final result or\r\noutcome but it may be through achievement of individual or\r\nseveral criminal acts. Each individual act may not constitute or\r\nresult in the final offence. When a person is assaulted by a\r\nnumber of accused, the “ultimate criminal act” normally will\r\nconstitute the offence which finally results or which may result in\r\ndeath, simple hurt, grievous hurt, etc. This is the final result,\r\noutcome or consequence of the criminal act, that is, action or act\r\nof several persons. Each person will be responsible for his own\r\nact as stipulated in Section 38 IPC. However, Sections 34 and 35\r\nexpand the scope and stipulate that if the criminal act is a result of\r\ncommon intention, every person, who has committed a part of the\r\ncriminal act with the common intention, will be responsible for the\r\noffence. It was accordingly held in Afrahim Sheikh and Ors.\r\n(supra) as under:\r\n“8. …Provided there is common intention, the whole of\r\nthe result perpetrated by several offenders, is\r\nattributable to each offender, notwithstanding that\r\nindividually they may have done separate acts, diverse\r\nor similar. Applying this test to the present case, if all\r\nthe appellants shared the common intention of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">severely beating Abdul Sheikh and some held him\r\ndown and others beat him with their weapons,\r\nprovided the common intention is accepted, they\r\nwould all of them be responsible for the whole of the\r\ncriminal act, that is to say, the criminal offence of\r\nculpable homicide not amounting to murder which was\r\ncommitted, irrespective of the part played by them.\r\nThe common intention which is required by the section\r\nis not the intention which s. 299 mentions in its first\r\npart. That intention is individual to the offender unless\r\nit is shared with others by a prior concert in which case\r\nSections 34 or 35 again come into play. Here, the\r\ncommon intention was to beat Abdul Sheikh, and that\r\ncommon intention was, as we have held above,\r\nshared by all of them. That they did diverse acts would\r\nordinarily make their responsibility individual for their\r\nown acts, but because of the common intention, they\r\nwould be responsible for the total effect that they\r\nproduced if any of the three conditions in s. 299, I.P.C.\r\napplied to their case. If it were a case of the first two\r\nconditions, the matter is simple. They speak of\r\nintention and s. 34 also speaks of intention.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n9. The question is whether the second part of s. 304\r\ncan be made applicable. The second part no doubt\r\nspeaks of knowledge and does not refer to intention\r\nwhich has been segregated in the first part. But\r\nknowledge is the knowledge of the likelihood of death.\r\nCan it be said that when three or four persons start\r\nbeating a man with heavy lathis, each hitting his blow\r\nwith the common intention of severely beating him and\r\neach possessing the knowledge that death was the\r\nlikely result of the beating, the requirements of s. 304,\r\nPart II are not satisfied in the case of each of them? If\r\nit could be said that knowledge of this type was\r\npossible in the case of each one of the appellants,\r\nthere is no reason why s. 304, Part II cannot be read\r\nwith s. 34. The common intention is with regard to the\r\ncriminal act, i.e., the act of beating. If the result of the\r\nbeating is the death of the victim, and if each of the\r\nassailants possesses the knowledge that death is the\r\nlikely consequence of the criminal act, i.e., beating,\r\nthere is no reason why s. 34 or s. 35 should not be\r\nread with the second part of s. 304 to make each liable\r\nindividually.”</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Accordingly, to attract applicability of Section 34 IPC, the\r\nprosecution is under an obligation to establish that there existed a\r\ncommon intention before a person can be vicariously convicted for\r\nthe criminal act of another. The ultimate act should be done in\r\nfurtherance of common intention. Common intention requires a\r\npre-arranged plan, which can be even formed at the spur of the\r\nmoment or simultaneously just before or even during the attack.\r\nFor proving common intention, the prosecution can rely upon\r\ndirect proof of prior concert or circumstances which necessarily\r\nlead to that inference. However, incriminating facts must be\r\nincompatible with the innocence of the accused and incapable of\r\nexplanation by any other reasonable hypothesis. By Section 33 of\r\nIPC, a criminal act in Section 34 IPC includes omission to act.\r\nThus, a co-perpetrator who has done nothing but has stood\r\noutside the door, while the offence was committed, may be liable\r\nfor the offence since in crimes as in other things “they also serve\r\nwho only stand and wait”. Thus, common intention or crime\r\nsharing may be by an overt or covert act, by active presence or at\r\ndistant location but there should be a measure of jointness in the\r\ncommission of the act. Even a person not doing a particular act\r\nbut only standing as a guard to prevent any prospective aid to the\r\nvictim may be guilty of common intention. Normally, however, in a case of offence involving physical violence, physical presence at\r\nthe place of actual commission is considered to be safe for\r\nconviction but it may not be mandatory when pre-arranged plan is\r\nproved and established beyond doubt. Facilitation in execution of\r\nthe common design may be possible from a distance and can\r\ntantamount to actual participation in the criminal act. The essence\r\nand proof that there was simultaneous consensus of mind of coparticipants in the criminal action is however, mandatory and\r\nessential.6\r\n In Krishnan and Another v. State of Kerala, it has\r\nbeen observed that an overt act is not a requirement of law for\r\nSection 34 IPC to operate but prosecution must establish that the\r\npersons concerned shared the common intention, which can be\r\nalso gathered from the proved facts.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. In Suresh’s case (supra), this Court also examined whether a\r\npassive co-perpetrator can be liable under Section 34 IPC. This\r\ncase quotes with approval the following passage from the\r\njudgment of Richardson, J. in King Emperor v. Barendra Kumar\r\nGhose8\r\n:\r\n“It appears to me that Section 34 regards the act done\r\nas the united act of the immediate perpetrator and his\r\nconfederates present at the time and that the\r\nlanguage used is susceptible of that meaning. The\r\nlanguage follows a common mode of speech. In R. V Salmon three men had been negligently firing at a\r\nmark. One of them — it was not known which — had\r\nunfortunately killed a boy in the rear of the mark. They\r\nwere all held guilty of manslaughter. Lord Coleridge,\r\nC.J., said: ‘The death resulted from the action of the\r\nthree and they are all liable.’ Stephen, J., said: ‘Firing\r\na rifle’ under such circumstances ‘is a highly\r\ndangerous act, and all are responsible; for they unite\r\nto fire at the spot in question and they all omit to take\r\nany precautions whatever to prevent danger’.\r\nMoreover, Sections 34, 35 and 37 must be read\r\ntogether, and the use in Section 35 of the phrase ‘each\r\nof such persons who joins in the act’ and in Section 37\r\nof the phrase, ‘doing any one of those acts, either\r\nsingly or jointly with any other person’ indicates the\r\ntrue meaning of Section 34. So Section 38 speaks of\r\n‘several persons engaged or concerned in a criminal\r\nact’. The different modes of expression may be\r\npuzzling but the sections must, I think, be construed\r\nas enunciating a consistent principle of liability.\r\nOtherwise the result would be chaotic.\r\nTo put it differently, an act is done by several persons\r\nwhen all are principals in the doing of it, and it is\r\nimmaterial whether they are principals in the first\r\ndegree or principals in the second degree, no\r\ndistinction between the two categories being\r\nrecognised.\r\nThis view of Section 34 gives it an intelligible content\r\nin conformity with general notions. The opposing view\r\ninvolves a distinction dependent on identity or\r\nsimilarity of act which, if admissible at all, is wholly\r\nforeign to the law, both civil and criminal, and leads\r\nnowhere.”\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. At this stage, we would like to refer to an old judgment of a\r\nDivision Bench of the Allahabad High Court in the case of Bashir\r\nv. State9\r\n, which by giving examples explains the scope and\r\nsignificance of the words “in furtherance” used in Section 34 of the IPC in the following manner:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> “18. The use of the words “in furtherance” suggests that\r\nSection 34 is applicable also where the act actually done\r\nis not exactly the act jointly intended by the conspirators\r\nto be done, otherwise, the words would not be needed at\r\nall. The common intention can be to do one act and\r\nanother act can be done in furtherance of the common\r\nintention. It may be a preliminary act necessary to be\r\ndone before achieving the common intention; or it may\r\nbecome necessary to do it after achieving the common\r\nintention or it may be done while achieving the common\r\nintention. Going to the spot in a motor car is an act in\r\nfurtherance of the common intention to commit a crime\r\nthere; but if while going there the driver runs over and\r\nkills a pedestrian, the collision is merely incidental and\r\nthe running aver of the pedestrian is not in furtherance of\r\nthe common intention. If, however, a conspirator who\r\nwishes to commit a crime involving violence against X is\r\nimpeded by Y and throws Y aside in order to get at X, the\r\nattack upon Y is made in furtherance of the common\r\nintention; see Russell on Crime, pages 557 and 558.”\r\nThe aforesaid quotation emphasizes that it is essential that\r\neach co-perpetrator should have necessary intent to participate or\r\notherwise have requisite awareness or knowledge that the offence\r\nis likely to be committed in view of the common design. It also\r\nfollows that in some cases merely accompanying the principal\r\naccused may not establish common intention. A co-perpetrator,\r\nwho shares a common intention, will be liable only to the extent\r\nthat he intends or could or should have visualized the possibility or\r\nprobability of the final act. If the final outcome or offence\r\ncommitted is distinctly remote and unconnected with the common\r\nintention, he would not be liable. This test obviously is fact and circumstance specific and no straitjacket universal formula can be\r\napplied. Two examples quoted in Bashir\'s case (supra) are\r\nrelevant and explain the widest and broad boundaries of Section\r\n34 IPC and at the same time warn that the ambit should not be\r\nextended so as to hold a person liable for remote possibilities,\r\nwhich were not probable and could not be envisaged. The\r\nexamples also bring out the distinction between the criminal acts\r\nand the intent of a co-perpetrator; and the actual offence\r\ncommitted by the principal or main perpetrator</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. In Surendra Chauhan v. State of Madhya Pradesh,  it has been\r\nobserved:\r\n“Under Section 34 a person must be physically\r\npresent at the actual commission of the crime for the\r\npurpose of facilitating or promoting the offence, the\r\ncommission of which is the aim of the joint criminal\r\nventure. Such presence of those who in one way or\r\nthe other facilitate the execution of the common design\r\nis itself tantamount to actual participation in the\r\ncriminal act. The essence of Section 34 is\r\nsimultaneous consensus of the minds of persons\r\nparticipating in the criminal action to bring about a\r\nparticular result. Such consensus can be developed at\r\nthe spot and thereby intended by all of them.\r\n(Ramaswami Ayyangar v. State of T.N.) The existence\r\nof a common intention can be inferred from the\r\nattending circumstances of the case and the conduct\r\nof the parties. No direct evidence of common intention\r\nis necessary. For the purpose of common intention\r\neven the participation in the commission of the offence\r\nneed not be proved in all cases. The common intention\r\ncan develop even during the course of an occurrence.\r\n(Rajesh Govind Jagesha v. State of Maharashtra) To <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">apply Section 34 IPC apart from the fact that there\r\nshould be two or more accused, two factors must be\r\nestablished :</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(i) common intention, and</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(ii) participation\r\nof the accused in the commission of an offence. If a\r\ncommon intention is proved but no overt act is\r\nattributed to the individual accused, Section 34 will be\r\nattracted as essentially it involves vicarious liability but\r\nif participation of the accused in the crime is proved\r\nand a common intention is absent, Section 34 cannot\r\nbe invoked. In every case, it is not possible to have\r\ndirect evidence of a common intention. It has to be\r\ninferred from the facts and circumstances of each\r\ncase.”\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. In Mithu Singh v. State of Punjab,\r\n11 this Court acquitted Mithu\r\nSingh under Section 302 read with Section 34 IPC, but upheld his\r\nconviction under Section 27 of the Arms Act, 1959 observing that\r\ninference as to common intention should not be readily drawn;\r\nculpable liability can arise only if such inference can be drawn with\r\na degree of assurance. In the facts of the said case, it was\r\nobserved that the required degree of assurance was missing. At\r\nthe same time, it was observed that while examining the question\r\nof common intention, the court should be conscious and aware\r\nthat it is difficult, if not impossible, to collect and produce direct\r\nevidence and in most cases inference as to the intention shall be\r\ndrawn from the acts and conduct of the accused and other\r\nrelevant circumstances as available. The entire observation or\r\nratio of this Court has to be kept in mind.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. In Rajesh Kumar v. State of Himachal Pradesh,\r\n12 this Court had\r\nelucidated and laid down the following principles as applicable to\r\nSection 34 IPC:\r\n“13. Section 34 has been enacted on the principle of\r\njoint liability in the doing of a criminal act. The Section\r\nis only a rule of evidence and does not create a\r\nsubstantive offence. The distinctive feature of the\r\nSection is the element of participation in action. The\r\nliability of one person for an offence committed by\r\nanother in the course of criminal act perpetrated by\r\nseveral persons arises under Section 34 if such\r\ncriminal act is done in furtherance of a common\r\nintention of the persons who join in committing the\r\ncrime. Direct proof of common intention is seldom\r\navailable and, therefore, such intention can only be\r\ninferred from the circumstances appearing from the\r\nproved facts of the case and the proved\r\ncircumstances. In order to bring home the charge of\r\ncommon intention, the prosecution has to establish by\r\nevidence, whether direct or circumstantial, that there\r\nwas plan or meeting of mind of all the accused\r\npersons to commit the offence for which they are\r\ncharged with the aid of Section 34, be it pre-arranged\r\nor on the spur of moment; but it must necessarily be\r\nbefore the commission of the crime. The true contents\r\nof the Section are that if two or more persons\r\nintentionally do an act jointly, the position in law is just\r\nthe same as if each of them has done it individually by\r\nhimself. As observed in Ashok Kumar v. State of\r\nPunjab (AIR 1977 SC 109), the existence of a\r\ncommon intention amongst the participants in a crime\r\nis the essential element for application of this Section.\r\nIt is not necessary that the acts of the several persons\r\ncharged with commission of an offence jointly must be\r\nthe same or identically similar. The acts may be\r\ndifferent in character, but must have been actuated by\r\none and the same common intention in order to attract\r\nthe provision.”\r\nAfter referring to the facts in Rajesh Kumar (supra), the conviction was converted from Section 302 IPC to one under\r\nSection 326 IPC highlighting the factual position that the accused\r\nin question had assaulted the victim by a danda on a non-vital\r\npart.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. In Arun v. State by Inspector of Police, Tamil Nadu,\r\n13 reference\r\nwas made to the decision in Hardev Singh and Another v. State\r\nof Punjab14 and benefit was given to one of the accused as he did\r\nnot act conjointly with others in committing the murder. This Court\r\nreferred to Dharam Pal and Others v. State of Haryana,  on the\r\ntest which should be applied to invoke and convict a co-accused\r\nunder Section 34 IPC. We also deem it appropriate to reproduce\r\nthe said test:\r\n“It may be that when some persons start with a\r\npre-arranged plan to commit a minor offence, they\r\nmay in the course of their committing the minor\r\noffence come to an understanding to commit the major\r\noffence as well. Such an understanding may appear\r\nfrom the conduct of the persons sought to be made\r\nvicariously liable for the act of the principal culprit or\r\nfrom some other incriminatory evidence but the\r\nconduct or other evidence must be such as not to\r\nleave any room for doubt in that behalf. A criminal court fastening vicarious liability must\r\nsatisfy itself as to the prior meeting of the minds of the\r\nprincipal culprit and his companions who are sought to\r\nbe constructively made liable in respect of every act\r\ncommitted by the former. There is no law to our\r\nknowledge which lays down that a person accompanying the principal culprit shares his intention\r\nin respect of every act which the latter might\r\neventually commit. The existence or otherwise of the\r\ncommon intention depends upon the facts and\r\ncircumstances of each case. The intention of the\r\nprincipal offender and his companions to deal with any\r\nperson who might intervene to stop the quarrel must\r\nbe apparent from the conduct of the persons\r\naccompanying the principal culprit or some other clear\r\nand cogent incriminating piece of evidence. In the\r\nabsence of such material, the companion or\r\ncompanions cannot justifiably be held guilty for every\r\noffence committed by the principal offender.”</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. Section 34 IPC makes a co-perpetrator, who had participated in\r\nthe offence, equally liable on the principle of joint liability. For\r\nSection 34 to apply there should be common intention between\r\nthe co-perpetrators, which means that there should be community\r\nof purpose and common design or pre-arranged plan. However,\r\nthis does not mean that co-perpetrators should have engaged in\r\nany discussion, agreement or valuation. For Section 34 to apply, it\r\nis not necessary that the plan should be pre-arranged or hatched\r\nfor a considerable time before the criminal act is performed.\r\nCommon intention can be formed just a minute before the actual\r\nact happens. Common intention is necessarily a psychological fact\r\nas it requires prior meeting of minds. In such cases, direct\r\nevidence normally will not be available and in most cases,\r\nwhether or not there exists a common intention has to be\r\ndetermined by drawing inference from the facts proved. This\r\nrequires an inquiry into the antecedents, conduct of the co <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">participants or perpetrators at the time and after the occurrence.\r\nThe manner in which the accused arrived, mounted the attack,\r\nnature and type of injuries inflicted, the weapon used, conduct or\r\nacts of the co-assailants/perpetrators, object and purpose behind\r\nthe occurrence or the attack etc. are all relevant facts from which\r\ninference has to be drawn to arrive at a conclusion whether or not\r\nthe ingredients of Section 34 IPC are satisfied. We must\r\nremember that Section 34 IPC comes into operation against the\r\nco-perpetrators because they have not committed the principal or\r\nmain act, which is undertaken/performed or is attributed to the\r\nmain culprit or perpetrator. Where an accused is the main or final\r\nperpetrator, resort to Section 34 IPC is not necessary as the said\r\nperpetrator is himself individually liable for having caused the\r\ninjury/offence. A person is liable for his own acts. Section 34 or the\r\nprinciple of common intention is invoked to implicate and fasten\r\njoint liability on other co-participants. Further, the expression/term\r\n“criminal act” in Section 34 IPC refers to the physical act, which\r\nhas been done by the co-perpetrators/participants as distinct from\r\nthe effect, result or consequence. In other words, expression\r\n“criminal act” referred to in Section 34 IPC is different from\r\n“offence”. For example, if A and B strike Lathi at X, the criminal act\r\nis of striking lathis, whereas the offence committed may be of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">murder, culpable homicide or simple or grievous injuries. The\r\nexpression “common intention” should also not be confused with\r\n“intention” or “mens rea” as an essential ingredient of several\r\noffences under the IPC. Intention may be an ingredient of an\r\noffence and this is a personal matter. For some offences, mental\r\nintention is not a requirement but knowledge is sufficient and\r\nconstitutes necessary mens rea. Section 34 IPC can be invoked\r\nfor the said offence also [refer Afrahim Sheikh and Ors. (supra)].\r\nCommon intention is common design or common intent, which is\r\nakin to motive or object. It is the reason or purpose behind doing\r\nof all acts by the individual participant forming the criminal act. In\r\nsome cases, intention, which is ingredient of the offence, may be\r\nidentical with the common intention of the co-perpetrators, but this\r\nis not mandatory.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">19. Section 34 IPC also uses the expression “act in furtherance of\r\ncommon intention”. Therefore, in each case when Section 34 is\r\ninvoked, it is necessary to examine whether the criminal offence\r\ncharged was done in furtherance of the common intention of the\r\nparticipator. If the criminal offence is distinctly remote and\r\nunconnected with the common intention, Section 34 would not be\r\napplicable. However, if the criminal offence done or performed\r\nwas attributable or was primarily connected or was a known or </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reasonably possible outcome of the preconcert/contemporaneous\r\nengagement or a manifestation of the mutual consent for carrying\r\nout common purpose, it will fall within the scope and ambit of the\r\nact done in furtherance of common intention. Thus, the word\r\n“furtherance” propounds a wide scope but should not be\r\nexpanded beyond the intent and purpose of the statute. Russell\r\non Crime, (10th edition page 557), while examining the word\r\n“furtherance” had stated that it refers to “the action of helping\r\nforward” and “it indicates some kind of aid or assistance producing\r\nan effect in the future” and that “any act may be regarded as done\r\nin furtherance of the ultimate felony if it is a step intentionally\r\ntaken for the purpose of effecting that felony.” An act which is\r\nextraneous to the common intention or is done in opposition to it\r\nand is not required to be done at all for carrying out the common\r\nintention, cannot be said to be in furtherance of common intention\r\n[refer judgment of R.P. Sethi J. in Suresh (supra)].\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20. When we apply the aforesaid principles relating to applicability of\r\nSection 34 IPC to the facts of the present case, we feel that\r\nThimmappa and Gopala are entitled to the benefit of doubt on the\r\nground that it cannot be with certainty held that they had common\r\nintention, viz. the injuries inflicted by Krishnamurthy on\r\nVenkatarama after he had fallen down. They did not participate </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">thereafter by physically assaulting or causing any injury to\r\nVenkatarama. They did not facilitate and help Krishnamurthy in\r\nthe assault he perpetuated. We have no grounds to accept that\r\nthey could have preconceived the brutal assault by Krishnamurthy\r\nwho had put his knees on the neck and jumped on the chest of the\r\ndeceased to cause the injuries resulting in his death. We cannot\r\nhold that these two accused could have premeditated the result\r\nwhich ensued when Krishnamurthy behaved and acted in the\r\nmanner he did. Clearly, they had not joined Krishnamurthy when\r\nhe had acted and have stood by. There is nothing to indicate that\r\ntheir acts, that is, holding the hands and pulling the legs of the\r\ndeceased making him fall down, were done in furtherance of the\r\ncommon intention that Krishnamurthy would thereupon put his leg\r\non the neck of the deceased, crushed his chest and fracture the\r\nribs. We would, in favour of the appellants Thimmappa and\r\nGopala, hold that their acts cannot be primarily connected with the\r\nviolence perpetuated by Krishnamurthy. Given the acts attributed\r\nto Thimmappa and Gopala, the assault by Krishnamurthy and the\r\nresultant outcome were unexpected. We are also not prepared to\r\nhold that these two accused should have known the final outcome,\r\nor it was known to them, or it was a reasonably possible outcome\r\nof the preconcert/ contemporaneous engagement or a </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">manifestation of mutual consent for carrying out a common\r\npurpose. We, therefore, would not hold them guilty for the offence\r\nunder Section 300 or even Section 299 of the IPC on the ground\r\nthat they shared common intention as understood on application\r\nof Section 34 IPC.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>21. Consequently, we convert their conviction to that under Section\r\n323 read with Section 34 IPC and we would sentence them to the\r\nmaximum sentence specified therein of one year. We also uphold\r\nthe conviction of Thimmappa and Gopala for individual offences\r\nunder Sections 447, 504, 506 and 341 IPC and the sentences\r\nimposed under the aforesaid Sections, which are up to three years\r\nof rigorous imprisonment and fine with default stipulations.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">22. Before concluding, we would like to mention the secondary argument raised by the appellant that juvenile ‘A’ was acquitted from all\r\nthe charges and hence, the appellants are entitled to acquittal on\r\nthe ground of parity. This contention is to be rejected in view of\r\nSections 40 to 44 of the Evidence Act, 1872. In particular, Section\r\n43 states judgments other than those mentioned in Sections 40 to\r\n42 are irrelevant unless the existence of that judgment, order or\r\ndecree is a fact in issue or is relevant under some other provisions\r\nof this Act. We have decided this appeal based on the evidence\r\nadduced and led by the prosecution in the chargesheet in question. We cannot decide this appeal based on the evidence and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">material led by the prosecution in the proceedings against the juvenile ‘A’ which were independent and separate proceedings. Evidence, reasoning and findings recorded therein are not in appeal\r\nbefore us.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>23. As Thimmappa and Gopala are on bail and have not undergone\r\nthe sentence, they shall surrender within a period of one month\r\nfrom today. In case they do not surrender, the police will take\r\ncoercive steps for their arrest to undergo the remaining sentence.\r\nThe sentence awarded to Krishnamurthy would be modified to life\r\nimprisonment without any further stipulation. The direction that life\r\nimprisonment shall be till the end of natural life to imply that\r\nKrishnamurthy shall not be entitled to premature release/remission\r\nin accordance with the applicable policy is set aside. There is no\r\nreason and justification for this condition to be imposed. The\r\nsentences as awarded to the appellants will run concurrently. The\r\nappellants would be entitled to the benefit of Section 428 of the\r\nCode of Criminal Procedure, 1973.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>24. The appeal is, accordingly, partly allowed in the aforesaid terms.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '71316a653adb3a9552600763ffb4cdae.jpeg', 'c4001693b86f69bbd6c17af35c376f07.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-14', 1, '', '', '2022-03-14 23:58:03', '2022-03-15 07:44:34');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1421, 'oO44lj2yQbfCnHGl8YCM0x7i3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'We are dismayed as to how all of a sudden that too in the middle of the academic term the issue of hijab is generated and blown out of proportion by the powers that be.\'\' Karnataka High Court.  ', '<div><font color=\"#222222\" face=\"mainFontOP\"><b>Resham and another vs State of Karnataka and others.</b></font></div><div><font color=\"#222222\" face=\"mainFontOP\"><b>Writ Petition 2347 of 2022 decided on 15 March 2022</b></font></div><div><font color=\"#222222\" face=\"mainFontOP\"><b>Chief Justice Ritu Raj Awasthi, Justice Krishna Dixit and Justice J. M. Khazi</b></font></div><div><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></div><div><font color=\"#222222\" face=\"mainFontOP\"><b>Page 127</b></font></div><div><font color=\"#222222\" face=\"mainFontOP\"><b>\"From the submissions made on behalf of the&nbsp; Respondent – Pre – University College at Udupi and the material placed on record, we notice that all was well with the dress code since 2004. We are also impressed that even Muslims participate in the festivals that are celebrated in the ‘ashta&nbsp; mutt&nbsp; samprad?ya’,&nbsp; (Udupi&nbsp; being&nbsp; the&nbsp; place&nbsp; where&nbsp; eight Mutts are situated). We are dismayed as to how all of a sudden that too in the middle of the academic term the issue of hijab is generated and blown out of proportion by the powers that be. The way, hijab imbroglio unfolded gives scope for the argument that some ‘unseen hands’ are at work to engineer social unrest and disharmony. Much is&nbsp; not&nbsp; necessary to specify. We are not commenting on the ongoing police investigation lest it should be affected. We have perused and returned copies of the police papers that were furnished to us in a sealed cover. We expect a speedy &amp; effective investigation into the matter and culprits being brought to book, brooking no delay.</b></font></div>', '91af2f1bb09796b201dc8856eb2bd3c9.JPG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-15', 1, '', '', '2022-03-15 17:35:15', '2022-03-15 17:35:15'),
(1422, 'F55FMapE0UuHkjlzO6xPJoK0M', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Forgery of document produced before the Court. If the document was already tampered before its production before the Court, bar under Section 195(1)(b)(ii) for prosecution will not apply. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Narendra Prasad P. Vs N. Sujatha and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Revision Petition 692 of 2019 decided on 11 March 15, 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P Sandesh.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This Criminal Revision Petition is filed praying this Court to set aside the order dated 06.02.2019 passed by the Court of Principal I Civil Judge and JMFC, Mysuru in P.C.No.1918/2018, restore the same and direct the Court to proceed with the matter in accordance with law. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.  The factual matrix of the case of the prosecution is that on 03.03.2010, the petitioner filed O.S.No.138/2010 in the Court of the II Additional Senior Civil Judge, Mysuru against the respondent No.1 and three others for declaration of title in respect of the land bearing Sy.No.8/2, Martikhyathanahalli, Jayapura Hobli, Mysuru Taluk measuring 20 guntas in extent. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The petitioner claims that he is the legal heir of deceased M. Puttegowda as his son. His grandson is Aditya Jagannath. The respondent No.1 claimed in the said suit that  she is the foster daughter of M. Puttegowda and further claims that deceased M. Puttegowda has executed a Will dated 07.02.2003 bequeathing the property in question to her and therefore, she is the owner. The Trial Court has framed the  issue as to whether she has proved that M. Puttegowda has bequeathed the suit property in her favour as per the said Will. The respondent No.1 claims that Will was executed on 07.02.2003 in the presence of the witnesses before the competent Sub-Registrar and the said Will is produced and marked as Ex.D3. She further claims that Ex.D3-Will was got registered four years after the death of M. Puttegowda and she does not know how in Ex.D3, who wrote ‘erased’ and as to why  it is so done. The said Will was presented for registration on 13.03.2008 and the signature of Ramu is removed by ink after registration.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 4. The Trial Court decreed the suit and an appeal was filed and the same was also dismissed. The Appellate Court also observed regarding the evidence of respondent No.2, wherein it is observed that it is necessary to note that on page No.4 of the said Will, at the bottom, there has been erasures with a white paint and the Sub-Registrar has signed on the same. Evidently, none of the pages of the Will bear any seal of the Sub-Registrar. It is evident that the endorsement of the Sub-Registrar are on the additional sheets and there cannot be any doubt that the erasure was by D.W.3. It is further observed that D.W.3 had no business to erase or manipulate the contents of the Will, which was presented to him for registration and he could not have meddled with the signature of the attesting witnesses. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Hence, in the revision petition, the petitioner has contended that the first respondent being legally bound by an oath to state the truth, has made a statement in O.S.No.138/2010 as defendant No.1 pertaining to the Will dated 07.02.2003, marked as Ex.D3 knowing to be false and thereby has given false evidence falling within the purview of Section 191 of Indian Penal Code punishable under Section 193 of the Indian Penal Code. Besides that, the first respondent by fabricating the said document i.e., Will purported to have been executed by M. Puttegowda on 07.02.2003 containing a false statement that he has bequeathed the property in question. The said acts were done not when it was in custodia legis but, before it was produced in the Court and marked as an exhibit. Hence, the revision petitioner has contended that the Trial Court has gravely erred in relying on the dictum in the case of SH NARENDRA KUMAR SRINIVAS VS. THE STATE OF BIHAR reported in (2019) 3 SCC 318 without application of judicial and judicious mind, as it ought to have done, by applying its judicial and judicious mind. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The learned counsel for the revision petitioner would further contend that the Trial Court ought to have analyzed the fact by applying its judicial and judicious mind to decipher whether the facts in that case are apposite and applicable to the present one, wherein Ex.D3 was forged and fabricated not when it was in custodia legis but, earlier and then produced in the Court. It ought to have found so  and held that the law laid  down in SACHIDA NAND SINGH VS. STATE OF BIHAR reported in (1998) SCC 493 and brought to the notice of this Court paragraph Nos.23 and 24. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.  The learned counsel also relied upon the judgment of the Constitution Bench of the Apex Court in IQBAL SINGH MARWAH VS. MEENAKSHI MARWAH reported in AIR 2005 SC 2119 and brought to the notice of this Court paragraph Nos.25 and 26. The counsel referring this judgment would vehemently contend that the law laid down in the said judgment and the factual matrix stated in it are apposite and squarely applicable to the facts on hand. Hence, the impugned order passed by the Trial Court in dismissing the complaint suffers from incorrectness, illegality and impropriety. The counsel also would vehemently contend that the Trial Court has committed an error in dismissing the complaint. 7 </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.  Per contra, learned counsel appearing for the respondents would vehemently contend that the private complaint is not supported by any affidavit and the counsel relying upon the judgment of MRS. PRIYANKA SRIVASTAVA AND ANOTHER V. STATE OF UP AND OTHERS reported in 2015 CRI.L.J. 2396 would vehemently contend that, in the absence of affidavit, the Court cannot entertain the complaint as laid down in the judgment of the Apex Court in the said case. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. The other contention of the learned counsel for the respondents is that there was a delay in lodging the complaint since, the Will was produced in the suit in the year 2012 and complaint is filed in the year 2018. When such being the inordinate delay in filing the complaint, the Trial Court has rightly rejected the complaint. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. In reply to the arguments of the learned counsel for the respondents, the learned counsel for the petitioner would submit that, in the complaint in paragraph No.21, the petitioner has categorically stated as to when the cause of action arose for filing the private complaint and the details are given in paragraph No.21(a) and therefore, the complaint is well within time. It is also stated therein that, since the matter in dispute was pending before the said Court, the complainant refrained from lodging the complaint before any other Court. Hence, there was no delay in lodging the complaint. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. Having heard the respective counsel and also on perusal of the material on record, the points that would arise for consideration of this Court are: (i)  Whether the order passed by the learned Magistrate in dismissing the complaint suffers from its legality, correctness and non- exercising of jurisdiction, as contended by the learned counsel for the petitioner?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) What order? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 12.  Having heard the respective counsel and also on perusal of the material on record, this Court would like to extract the order of the Trial Court which is impugned herein: <br><i>“ORDER Complaint filed against accused for giving false evidence on the basis of forged documents. Complainant alleged that accused No.1 produced forged Will in evidence, hence accused No.1 committed an offence punishable U/s 193 of IPC. Accused No.2 to help accused forged Will, hence accused Nos.1 and 2 committed an offence punishable U/s 193, 467 r/w. 34 IPC. Section 340 Cr.P.C. describes who can take cognizance for the offence punishable U/s 195 of IPC. When document alleged as forged, if it is not produced in Court and not admitted in evidence, then any party can file complaint. Once forged document admitted in evidence, then except the Court in which it is produced, no other person can file the complaint for the offence punishable U/s 467 of IPC. Private complaint is not maintainable with respect to offence punishable U/s 193 of IPC. This is also held by Hon’ble  Supreme Court in Crl. Appeal No.211/2019  between Sh. Narendra Kumar Srivastava V/s The State of Bihar, hence following, ORDER Complaint dismissed, as this Court cannot take cognizance on the basis of private complaint”. </i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. Having perused the records, it is seen that private complaint is filed before the Trial Court against the respondents herein making an allegation against them, particularly in paragraph No.7 with reference to the Will marked as Ex.D3 i.e., the accused No.1 i.e., defendant No.1 has further deposed on oath that pursuant to the endorsement as per Ex.D3(a), Ex.D3 is registered. She has admitted that at page No.4 of the Will, the writing is ‘erased’ and that she does not know as to why it is so done. She has also stated earlier on oath that about four years after M. Puttegowda’s demise, she went to the registration office and had Ex.D3 is registered. Further, the allegation in the complaint is that, while registering the document, the same was ‘erased’ and in the cross-examination of D.W.3, who is accused No.2 categorically admitted that the Will was presented for registration on 13.03.2008 and further admitted that, Ex.D3 is the original Will, in which the signature of one Ramu is removed by white ink after registration. Hence, private complaint is filed invoking the offences punishable under Sections 191 of IPC punishable under Section 193 thereof and Section 467 read with Section 34 of IPC. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.  Having perused the contents of the complaint, it is clear that tampering of document was done outside the Court at the time of registration of the document and the same was not done in the Court proceedings and the only allegation is that, forged document has been used in the Court proceedings. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. The learned counsel for the petitioner also relied upon the judgment of the Apex Court in IQBAL SINGH MARWAH AND ANOTHERS V. MEENAKSHI MARWAH AND ANOTHER reported in AIR 2005 SC 2119, wherein it is categorically held that for attracting Section 195(1)(b)(ii), offences enumerated in Section must be committed during time document was in custodia legis and Section 195 is not penal provision. The rule of strict construction does not apply  including documents forged prior to their submission in Court and Section 195 would render victim of offence remedyless. The Apex Court also considering the similar allegations and exercising the powers in paragraph Nos.25 and 26 has discussed with regard to Section 195(1)(b)(ii) which reads as hereunder:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>“25. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii), Cr.P.C. would be attracted only when the offences enumerated in the said provisions have been committed with respect to a document after it has been produced or given in evidence in a proceedings in any Court i.e., during the time when the document was in custodia legis. 26. In the present case, the Will has been produced in the Court subsequently. It is nobody’s case that any offence as enumerated in Section 195(b)(ii) was committed in respect to the said Will after it had been produced or filed in the Court of District Judge. Therefore, the bar created by Section 195(1)(b)(ii), Cr.P.C. would not come into play and there is no embargo on the power of the Court to take cognizance of the offence on  the basis of the complaint filed by the respondents.  The view taken by the learned Additional Sessions Judge and the High Court is perfectly correct and calls for no interference.” Hence, it is the very contention of the learned counsel for the petitioner that the  Magistrate  has  not  exercised his jurisdiction to entertain the complaint, which is nothing but non- exercise of jurisdiction by the Magistrate. The principles laid down in the judgment is aptly applicable to the case on hand since, the factual aspects of the case on hand and also the facts and circumstances in the judgment of the Apex Court are one and the same. Hence, it requires interference of this Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. Learned counsel appearing for the respondents mainly contend that the private complaint is not supported by any affidavit and relied upon the judgment of the Srivastava’s Case. But, here is a case where the learned Magistrate has not exercised the jurisdiction in coming to the conclusion that the Court cannot take cognizance based on the private complaint. The very approach of the Trial Court is very erroneous and the Apex Court in Iqbal Singh’s case in its judgment in paragraph No.26 has rightly held that it is nobody’s case that any offence as enumerated in Section 195(b)(ii) was committed in respect to the said Will after it had been produced or filed in the Court of District Judge. Therefore, the bar created by Section 195(1)(b)(ii) Cr.P.C. would not come into play and there is embargo on the power of the Court to take cognizance of the offence on the basis of the complaint filed by the respondents. The view taken by the learned Additional Sessions Judge and the High Court is perfectly correct and calls for no interference.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 17. In the case on hand, the Magistrate has not exercised his jurisdiction in entertaining the complaint, instead committed an error in passing the order that the Court cannot take cognizance based on the private complaint. The material  on record would disclose that the manipulation and erasing of the same was done outside the Court and not in the Court proceedings and the only allegation is that the said document has been placed before the Court and used the forged document in the Court proceedings and it is not the case of the complainant that the offence was committed in the Court proceedings. Hence, there is no bar to the learned Magistrate to entertain the complaint and hence, the very approach of  the Trial Court is erroneous. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. The contention of the learned counsel for the respondents that the judgment of Srivastava’s case is applicable to the case on hand cannot be entertained at this stage since, the same is with regard to abuse of powers by filing private complaint and that is not the ground invoked to reject the complaint and the learned Magistrate has given other reasons which I have already discussed in detail supra that the private complaint cannot be entertained. The same is not dismissed on the ground of non-filing of affidavit. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. The other contention of the learned counsel for the respondents is that there was a delay in lodging the complaint since the Will was produced in the suit in the year 2012 and the complaint was filed in 2018. However, the complainant in his complaint in paragraph No.21(A) has made it clear as to when the cause of action arose to file the private complaint. When such being the case and no doubt, the Will was produced in the suit in the year 2012, the conclusion was reached in 2018 and by filing a private complaint given the reason in the said complaint for the delay. Hence, the very contention that there was a delay in filing the complaint also cannot be accepted. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. Having considered the material on record and also the order passed by the learned Magistrate, it is not in dispute that the learned Magistrate has not exercised his jurisdiction by entertaining the complaint and instead, erroneously comes to  the conclusion that he is not having jurisdiction to take cognizance based on the private complaint and failed to take note of the allegation made in the complaint in detail while filing the same, wherein specific allegation is made that the forgery of document has taken place outside the Court and not within the Court and only made use of the forged document in the Court proceedings. Hence, the private complaint is maintainable and the Trial Court also lost sight of the factual aspects of the case and therefore, it requires interference of this Court by exercising the revisional powers. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21. In view of the discussions made above, I pass the following: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) The Criminal Revision Petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) The impugned order dated 06.02.2019 passed by the Court of Principal I Civil Judge and JMFC, Mysuru in P.C.No.1918/2018 is hereby set aside. The matter is remanded to the Trial Court to consider the matter in accordance with law.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">(iii)  The petitioner is given liberty to file an affidavit before the Trial Court in view of the principles laid down in Srivastava’s case.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><br></span></p>', 'd9efd8c35b5f059160806ade1cb76677.jpeg', '5212592e1ac6a96808b23e6356c98d8c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-15', 1, '', '', '2022-03-15 18:14:17', '2022-03-16 19:09:27'),
(1423, 'AxsTUYclEAPZi8GESmWIvAIgD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Tahsildar has jurisdiction under Section 140(2) of the Karnataka Land Reforms Act to carry out survey work and fix boundaries even in respect lands falling within the limits of Corporation. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b style=\"background-color: rgb(255, 255, 0);\">NOTE: Judgement in Hewlett Packard (India) Software Operation Private Limited vs Tashildhar, Bangalore East and others. Writ Petition 209 of 2020 decided on 1 October 2020 REVERSED.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sunil Chajed Vs State of Karnataka and Others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Appeal 468 of 2021 decided on 10 March 15 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Alok Aradhe and Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The appellant has assailed the validity of the order dated 01.10.2020 passed by learned single Judge by which the writ petition preferred by respondent No.3 has been allowed and the order dated 13.11.2019 passed by the Tahsildar under the Section 140(2) of Karnataka Land Revenue Act, 1964 (hereinafter referred to as \'the Act\' for short) has been quashed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.&nbsp; Facts giving rise to filing of this appeal briefly stated are that appellant claims to be the owner of land measuring 1 acre and 4.08 guntas of land bearing Sy.No.91/1A (hereinafter referred to as \'the land in question\' for short). The authorities under the Urban Land Ceiling Regulation Act, 1976 took possession of the land in question. The appellant challenged the order passed by the authorities under the Act before the Karnataka Appellate Tribunal, which by an order dated 07.03.1998 directed restoration of land to the appellant. In compliance of the order passed by the tribunal, the name of the appellant was restored in the revenue records. The appellant filed the suit viz., O.S.No.26187/2014 seeking the relief of permanent injunction restraining the respondent No.3 from interfering with the peaceful possession in respect of land in question. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. It is the case of the appellant that even though the land was restored in favour of the appellant, it was not possible to identify the boundary of the land in question and therefore, the appellant made an application to the Deputy Commissioner to fix the boundaries, which was forwarded to the Tahsildar. The Tahsildar thereupon initiated proceeding and issued notice to respondent No.3 and others and thereafter passed an order on 22.02.2019 directing the Assistant Director of Land Records, Bangalore East Taluk to take steps to fix the boundaries of the land in question. The respondent No.3 challenged the aforesaid order in a writ petition. The learned Single Judge by an order dated 14.08.2019 allowed the writ petition and remitted the matter to the Tahsildar to examine the issue with regard to jurisdiction and thereafter to proceed to adjudicate the claim on merits. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. The Tahsildar by an order dated 13.11.2019 held that he has jurisdiction to fix the boundaries of the land in question in view of Section 61(1)(h) and Section 140 of the Act. The aforesaid order was subject matter of challenge in a writ petition preferred by respondent No.3. The learned single Judge by an order dated 01.10.2020 allowed the writ petition and has inter alia held that Tahsildar has no jurisdiction to fix the boundaries. The order passed by the Tahsildar has been quashed. In the aforesaid factual background this appeal has been filed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Learned Senior counsel for the appellant submitted that learned Single Judge erred in holding that revenue authorities have no jurisdiction to fix the boundaries in respect of land in question on the ground that the same is situated within the limit of Municipal Corporation. It is also urged that Section 61(2)(h) of the Act read with Section 140(2) of the Act empowers the Tahsildar to decide the issue with regard to fixation of boundary. It is further submitted that Tahsildar has jurisdiction to pass the impugned order&nbsp; for fixing the boundary in respect of land in question. In support of aforesaid submissions, reliance has been placed on decision of this Court in THE&nbsp; STATE&nbsp; OF&nbsp; KARNATAKA AND OTHERS VS.&nbsp; SMT. H.J.SHANKUNTHALAMMA\',&nbsp; ILR 2007 KAR 5106. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. On the other hand, learned Additional Government Advocate submitted that the revenue authority has jurisdiction to conduct the survey and to fix the boundaries in respect of the land situated within the limits of Municipal Corporation also. Learned Senior counsel for respondent No.3 submitted that the lands in question are converted and are situated within the limits of BBMP and therefore, the provisions of the Act are not applicable to the land in question as the same is not revenue Land. In support of aforesaid submissions, reliance has been placed on division bench decision of this&nbsp; court&nbsp; in&nbsp; \'J.M.NARAYANA&nbsp; AND OTHERS VS. CORPORATION OF THE CITY OF BANGALORE,&nbsp; BY&nbsp; ITS&nbsp; COMMISSIONER&nbsp; OFFICE, BANGALORE&nbsp; &nbsp;AND&nbsp; &nbsp;OTHERS\', ILR&nbsp; 2005 KAR 60 and decisions of learned Single Judges of this court in \'BASHEERKHAN&nbsp; vs. THE TAHSILDAR, W.P.No..76164/2013, \'KIRLOSKAR ELECTRICAL CO. PVT. LTD. VS. STATE OF KARNATAKA AND ANOTHER\', W.P.NO.105734/2016 and a full bench decision of this court in \'SMT.JAYAMMA AND OTHERS VS. THE STATE OF KARNATAKA, REP. BY ITS SECRETARY, DEPARTMENT OF REVENUE AND OTHERS\', ILR 2020 KAR 1449. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.&nbsp; We have considered the submissions made on both sides and have perused the record. The Act is an Act to consolidate and amend the laws relating to land and land revenue administration in the State of Karnataka. Section 2(12) of the Act, defines the expression \'holding\', whereas, Section 2(32) defines the expression \'survey number\'. Chapter VI of the Act deals with revenue jurisdiction. Section 60(a) which defines the expression \'land\'. Section 2(12), Section 2(32), Section 61(2)(h) and Section 140 of the Act read as under: (12) “holding” means a portion of land held by a holder (32) “survey number” means a portion of land of which the area and assessment are separately entered under an indicative number in the land 1964: KAR. ACT 12] Land Revenue 463 records; and “sub-division of a survey number” means a portion of a survey number of which the area and assessment are separately entered in the land records under an indicative number subordinate to that of the survey number of which it is a portion; 60. Definitions.—In this Chapter, unless the context otherwise requires,—</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a)&nbsp; \'land´&nbsp; includes&nbsp; the&nbsp; sites&nbsp; of&nbsp; villages, towns and cities, trees, growing crops and grass, fruit upon, and juice in, trees, rights of way, ferries and fisheries; Exclusive Jurisdiction of Revenue Courts and bar of jurisdiction of Civil Courts</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.&nbsp; xxxxx</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Subject to the exceptions hereinafter specified, no Civil Court shall exercise jurisdiction as to any of the following matters, namely:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(h) claims regarding boundaries fixed&nbsp; under this Act or under any other law for the time being in force, or to set aside any order passed by a competent officer under any such law with regard to boundary marks or survey marks:&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> Determination of boundaries&nbsp; of lands forming a survey number or a holding.—</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(1)&nbsp; &nbsp;At the time of a survey, the boundary of a survey number, a sub-division of a survey number or a holding,—</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a)&nbsp; if undisputed, shall be recorded and marked as pointed out by the holder or person in occupation, and</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b)&nbsp; if disputed, or if the holder or person in occupation be not present, shall be fixed by the Survey Officer, in accordance with the land records relating to the land and after making such inquiry as he considers necessary.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(2)&nbsp; If any dispute arises concerning the boundary of a holding which has not been surveyed, or if at any time after the completion of a survey, a dispute arises concerning the boundary of a survey number, a sub-division of a survey number or a holding, the Tahsildar shall decide the dispute having due regard to the land records, if they afford satisfactory evidence of the boundary previously fixed, and if not, after such inquiry as he considers necessary. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. Section 2(12) of the Act defines the expression `holding\' to mean a portion of land held by a holder. Section 2(32) of the Act defines the `survey&nbsp; number\' to mean a portion of land of which area and assessment are separately entered in a indicative number in the land records. The aforesaid&nbsp; expressions&nbsp; viz.,&nbsp; `holding\'&nbsp; and&nbsp; `survey&nbsp; number\' have to be read with Section 140 of the Act, which provides for determination of boundaries of land forming a survey number or a holding. Thus, if at the time of survey, boundary of any survey number or sub division of a survey number or a holding is disputed, shall be fixed by survey officer in accordance with the land records relating to the land and after making such enquiry as he considers necessary. Section 140(2) of the Act provides that if any dispute arises concerning the boundary of survey number or a sub division of a survey number or a holding, the Tahsildar shall decide the dispute having due regard to the land records. Thus, it is evident that Tahsildar Under Section 140(2) of the Act has power to determine the boundary of a survey number or a holding. The aforesaid power can be exercised in respect of a survey number or a holding irrespective of the fact whether same is situated within the Municipal limits or outside the municipal limits. Therefore, the order passed by the Tahsildar dated 13.11.2019 inter alia holding that it has jurisdiction to decide the matter pertaining to fixing the boundary of lands forming survey number does not suffer from any infirmity. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. The learned Single Judge has taken into account Section 112-D of the Karnataka Municipal Corporation Act, which deals with power of Commissioner to survey lands and buildings. The aforesaid Section reads as under: 112D. Survey of lands and buildings and preparation of property register. -</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(1) The Commissioner shall, subject to the general or special orders of the Government, direct a survey of buildings or lands or both within the city with a view to the assessment of property tax and may obtain the services of any qualified person or agency for conducting such survey and preparation of property register.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(2)&nbsp; A property register shall be maintained in such manner and containing such particulars in respect of buildings or lands or both as specified in Schedule III.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(3)&nbsp; For the purpose of preparation of property register or assessment of property tax in respect of any buildings or lands or both, the Commissioner or any person authorised by him in this behalf may enter, inspect, survey or measure any land or building after giving notice to the owner or occupier before such inspection and the owner or occupier shall be bound to furnish necessary information required for the purpose: Provided that such entry into and upon any building or land shall be made between sunrise and sunset: Provided further that in the case of buildings used as human dwelling due regard shall be paid to the social and religious customs of the occupiers and no apartment in the actual occupancy of a woman shall be entered until she has been informed that she is at liberty to withdraw and every reasonable facility has been afforded to her for withdrawing </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. From perusal of the aforesaid provision, it is evident that the power has been conferred on the Commissioner to direct survey of buildings or lands within the city with a view to assessment of property tax. The aforesaid provision has no bearing so far as the issue involved in this case is concerned viz., whether Tahsildar has jurisdiction to decide the matter pertaining to fixing the boundary of lands forming survey number. The provisions of the Act as well as Karnataka Municipal Corporation Act operate in different fields and in any case, the scope and ambit of the power under Section 140(2) of the Act cannot be determined with reference to Section 112D of the Karnataka Municipal Corporation Act, which even otherwise has no bearing on the issue. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. It is settled in law that judgments have not to be read as Euclid\'s theorems and their ration descideni has to be determined with reference to the factual matrix in which the case is decided. The reliance placed by the respondent No.3 on the decision of division bench of this court in J.M.NARAYANA AND OTHERS VS. CORPORATION OF CITY OF BANGALORE supra is concerned, it is pertinent to note that the division bench in the aforesaid case&nbsp; was dealing with the issue of non payment of court fee on the memo of appeal. In the aforesaid context, the division bench of this court while dealing with the issue of valuation in paragraph 5 held that if certain lands are included in the Corporation limits are registered or used for cultivation purposes would not imply that the land continues to pay land revenue under the Land Revenue Act. It was further held that Land Revenue Act would cease to be applicable no sooner the land is brought within the limits of Corporation. The aforesaid finding recorded by the division bench has to be understood in the context in which it has been made namely for the purpose of valuation of the land in context of payment of court fee. It is noteworthy that the aforesaid decision does not deal with the powers of Tahsildar under Section 140(2) of the Act. Therefore, in our considered opinion, the aforesaid decision is not an authority for the proposition that the provisions of the Act do not apply to the land in question if it is included in Municipal Limits. The aforesaid decision is therefore, of no assistance to respondent No.3 in the facts of the case. Similarly, the decision rendered by learnd Single Judges in case of KIRLOSKAR ELECTRICALS CO. PVT. LTD and BASHEERKHAN supra are of no assistance to the respondent No.3. The decision of the full bench in SMT JAYMMA AND OTHERS SUPRA is an authority for the proposition that under Section 136(2) and (3) of Karnataka Land Revenue Act, the revenue officials cannot decide the question&nbsp; involving&nbsp; the&nbsp; title&nbsp; and&nbsp; possession.&nbsp; The aforesaid decision has also no bearing on the issue involved in this appeal. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">In view of preceding analysis, the order passed by learned Single Judge is hereby set aside and the writ petition filed by respondent No.3 is dismissed. In the result, the appeal is allowed.</font></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '680ecf79ce405c261748393cfb239fa2.JPG', '9ee022623a249a4349ae9559549fb993.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-15', 1, '', '', '2022-03-15 20:36:42', '2022-03-16 07:06:03');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1424, 'pcIsujQIL9dMYFvWPXa1n31mC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Forgery of document produced before the Court when the same was in the custody of the Court. Magistrate cannot take congizance on the basis of a private complaint. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Narendra Kumar Srivastava Vs State of Bihar and Others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 211 of 2019 decided on 4 February 2019.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A.K Sikri and Justice S. Abdul Nazeer.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.  This appeal is directed against the judgment and order dated 30.03.2017 in Criminal Revision No. 111 of 2017, whereby the High Court of Judicature at Patna has allowed the revision petition filed by the respondent Nos. 2 to 4 and set aside the order dated 22.12.2016  passed  by  the  learned  Assistant Chief Judicial MagistrateVII, Motihari, taking cognizance of an offence punishable under Section 193 of the Indian Penal Code, 1860 (for short, ‘the IPC’) on the basis of a private complaint filed by the appellant. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. Respondent Nos. 2 to 4 are the officials of Doordarshan and All India Radio. The appellant had joined the Doordarshan Kendra, Motihari, as an Engineering Assistant in the pay scale of Rs.1400/­ to Rs.2600/­. It was contended that the pay scale of Engineering Assistants was revised from Rs.2000/­ to Rs.3000/­ with effect from 01.01.1986, by the Ministry of Information and Broadcasting by its decision dated 15.05.1995. The pay scale of Senior Engineering Assistant was revised from Rs.2000/­ to Rs.3275/­ with effect from 01.01.1986. It is his case that replacement pay scale of all the categories, with effect from 01.01.1996, was fixed at Rs.6500/­ to Rs.10,500/­. The Employees Association of the concerned cadre, upon coming into force of Assured Career Progression (ACP) scheme, had represented for grant of 1st ACP in the pay scale of Rs. 8000/­ to 13,500/­ which was not being allowed, which led to the filing of an application before Central Administrative Tribunal, Patna Bench (for short \'the CAT\'). This gave rise to O.A. No. 514 of 2002. The said O.A. was allowed by  the CAT, by an order dated 07.09.2009. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. The Union of India challenged the said order by filing a writ petition before the High Court. The High Court allowed the writ petition with an observation that no generalized direction could be given for the grant of ACP and the ACP has to be granted on individual basis. The appellant, thereafter, represented before the competent authority for grant of 1st ACP. On refusal, he filed O.A. No.173 of 2009 before the CAT, which was dismissed on 13.02.2013. The appellant, thereafter, approached the High Court by filing a writ petition CWJC No. 2797 of 2014, which was disposed of by an order dated 29.06.2014, with a direction to the respondents therein to pass appropriate order on the representation filed by the appellant. Alleging non­compliance of the said order, the appellant filed a contempt petition before the High Court, which gave rise to MJC No.2912 of 2015.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. In the petition alleging contempt, it was contended that in the contempt case, the respondents filed a show­cause showing compliance of the order dated 29.06.2014, and accordingly, the contempt case was dropped with liberty to the appellant to challenge the order passed in compliance of the court’s directive before an appropriate forum. Instead of challenging the said order, the appellant filed a private complaint against respondent Nos. 2 to 4 before the Assistant Chief Judicial Magistrate­VII, Motihari alleging commission of offence punishable under Section 193 read with Section 34 of the IPC alleging that because of the false and wrong statement made by the respondents in their show­cause affidavit, the High Court dropped the contempt case. The Magistrate by an order dated 22.12.2016 took cognizance of the same and summoned respondent Nos. 2 to 4. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. The respondent Nos. 2 to 4 challenged the said order of the Magistrate before the High Court. As noticed above, the High Court has allowed the criminal revision petition by its order dated 30.03.2017.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. Learned counsel for the appellant submits that in the contempt petition filed by the appellant, the respondents had filed false affidavits prepared/forged outside the court.   On the basis  of the false affidavits, the High Court dropped the contempt case. Therefore, the appellant filed a complaint before the Magistrate under Section 193 of the IPC against the respondent Nos. 2 to 4. It is argued that it was not mandatory to obtain prior sanction for filing a private complaint under Section 193 of the IPC and that the complaint filed by the appellant was maintainable. In this connection he has relied on a decision of this Court in <i>Sachida Nand Singh and Anr. v. State of Bihar and Anr., (1998) 2 SCC 493.  </i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i><br></i>8.  On the other hand, learned counsel appearing for the respondents, submits that the punishment for offence giving false evidence in judicial proceedings is stipulated in Section 193 of the IPC and the law governing taking of the cognizance of such an offence is contained in Section 195 of the Cr.P.C. Section 195 of the Cr.P.C. puts a clear bar on taking of cognizance by a Court, of an offence punishable under Section 193 of the IPC, unless it is on a complaint in writing of the Court or such officer of the Court as that Court may authorize in writing in this behalf, in relation to a judicial proceeding of which Court, the offence is alleged to have been committed. Since no such complaint has been made, the High Court was justified in quashing the order of the Magistrate.  In this connection, reliance is placed on the judgment of this Court in<i> M.S. Ahlawat v. State of Haryana and another, (2000) 1 SCC 278.</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. Having regard to the contentions urged, the question for consideration is whether the Magistrate was justified in taking cognizance of an offence punishable under Section 193 of the IPC on the basis of a private complaint? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">10.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Before proceeding further, it is important to peruse the relevant sections of the IPC and Cr.P.C. Section 193 of IPC reads  as follows:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>\"193. Punishment for false evidence<i>.— Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabri­ cates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of ei­ ther description for a term which may ex­ tend to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either de­ scription for a term which may extend to three years, and shall also be liable to fine.</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>Explanation 1.—A trial before a Court­mar­ tial is a judicial proceeding.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>Explanation 2.—An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of judicial pro­ ceeding, though that investigation may not take place before a Court of Justice. Illustration A, in an enquiry before a Magistrate for the purpose of ascertaining whether Z ought to be committed for trial, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceed­ ing, A has given false evidence.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>Explanation 3.—An investigation directed by a Court of Justice according to law, and conducted under the authority of a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice. Illustration A, in an enquiry before an officer deputed by a Court of Justice to ascertain on the spot the boundaries of land, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceed­ ing, A has given false evidence.\" </b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>Section 195 of the Cr.P.C. expressly states as follows:<i> “</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. —</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>(1) No Court shall take cognizance — (a)</i> </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>(ii)</i> <i>of any abetment of, attempt to commit, such offence, or</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>(iii)</i> <i>of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b)</i><span style=\"font-style: italic; white-space: pre;\">	</span></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(i) of Any offence punisHAble under Any of the following sections of the IndiAn PenAl Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) And 228, when such offence is Alleged to HAve been committed in, or in relAtion to, Any proceeding in Any Court, or</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>(ii)</i> <i>of Any offence described in section 463, or punisHAble under section 471, section 475 or section 476, of the sAid Code, when such offence is Alleged to HAve been committed in respect of A document produced or given in evidence in A proceeding in Any Court, or</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>(iii)</i> <i>of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub­clause (i) or sub­ clause (ii),[except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>(2)</i><i>Where a complaint has been made by a public servant under clause (a) of sub­ section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>(3)</i> <i>In clause (b) of sub­section (1), the term \"Court\" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>(4)</i><span style=\"font-style: italic; white-space: pre;\">	</span><i>For the purposes of clause (b) of sub­ section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: Provided that—</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>(a)</i><span style=\"font-style: italic; white-space: pre;\">	</span><i>where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>(b)</i><i>where appeals lie to a civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.” (emphasis supplied). </i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12. It is clear from sub­section (1)(b) of Section 195 of the Cr.P.C. that the section deals with two separate set of offences:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(i) of any offence punishable under Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228 of IPC, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court; [Section 195(1)(b)(i)]</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of IPC, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court. [Section 195(1)(b)(ii)].</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>13. On the reading of these sections, it can be easily seen that the offences under Section 195(1)(b)(i) and Section 195(1)(b)(ii) are clearly distinct. The first category of offences refers to offences of false evidence and offences against public justice, whereas, the second category of offences relates to offences in respect of a document produced or given in evidence in a proceeding in any court. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>14. Section 195 of the Cr.P.C. lays down a rule to be followed by the court which is to take cognizance of an offence specified therein but contains no direction for the guidance of the court which desires to initiate prosecution in respect of an offence alleged to have been committed in or in relation to a proceeding in the latter court. For that purpose, one must turn to Section 340 which requires the court desiring to put the law in motion to prefer a complaint either suo motu or an application made to it in that behalf.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>15. Section 340 of the Cr.P.C. reads as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>“340. Procedure in cases mentioned in Section 195.—</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub­section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,—</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b> (a)<span style=\"white-space:pre\">	</span>record a finding to that effect;</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>(b)<span style=\"white-space:pre\">	</span>make a complaint thereof in writing;</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>(c)<span style=\"white-space:pre\">	</span>send it to a Magistrate of the first class having jurisdiction;</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>(d)<span style=\"white-space:pre\">	</span>take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non­bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>(e)<span style=\"white-space:pre\">	</span>bind over any person to appear and give evidence before such Magistrate.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>(2)<span style=\"white-space:pre\">	</span>The power conferred on a Court by sub­ section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub­section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub­section (4) of Section 195.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>(3)<span style=\"white-space:pre\">	</span>A complaint made under this section shall be signed,—</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>(a)<span style=\"white-space:pre\">	</span>where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>(b)<span style=\"white-space:pre\">	</span>in any other case, by the presiding officer of the Court[or by such officer of the Court as the Court may authorise in writing in this behalf]. (4)<span style=\"white-space:pre\">	</span>In this section, “Court” has the same meaning as in Section 195.”<br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>16. Section 340 of Cr.P.C. makes it clear that a prosecution under this Section can be initiated only by the sanction of the court under whose proceedings an offence referred to in Section 195(1)(b) has allegedly been committed. The object of this Section is to ascertain whether any offence affecting administration of justice has been committed in relation to any document produced or given in evidence in court during the time when the document or evidence was in custodia legis and whether it is also expedient in the interest of justice to take such action. The court shall not only consider prima facie case but also see whether it is in or against public interest to allow a criminal proceeding to be instituted. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>17. <i>This Court in Chajoo Ram v. Radhey Shyam, (1971) 1 SCC 774 at page 779, </i>held that the prosecution under Section 195 could be initiated only by the sanction of the court and only if the same appears to be deliberate and conscious. It emphatically held as under:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>“7. The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge… \"</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>18. <i>In Santokh Singh v. Izhar Hussain and Anr., (1973) 2 SCC 406</i>, this Court has held that every incorrect or false statement does not make it incumbent on the court to order prosecution. The Court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The court orders prosecution in the larger interest of the administration of justice and not to gratify the feelings of personal revenge or vindictiveness or to serve the ends of a private party. Too frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely that the court should direct prosecution. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>19. <i>This Court in M.S. Ahlawat (supra)</i> has clearly held that private complaints are absolutely barred in relation to an offence said to have been committed under Section 193 IPC and that the procedure prescribed under Section 195 of the Cr.P.C. are mandatory. It was held that:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>\"5. Chapter XI IPC deals with “false evidence and offences against public justice” and Section 193 occurring therein provides for punishment for giving or fabricating false evidence in a judicial proceeding. Section 195 of the Criminal Procedure Code (CrPC) provides that where an act amounts to an offence of contempt of the lawful authority of public servants or to an offence against public justice such as giving false evidence under Section 193 IPC etc. or to an offence relating to documents actually used in a court, private prosecutions are barred absolutely and only the court in relation to which the offence was committed may initiate proceedings. Provisions of Section 195 CrPC are mandatory and no court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that section. It is settled law that every incorrect or false statement does not make it incumbent upon the court to order prosecution, but (sic) to exercise judicial discretion to order prosecution only in the larger interest of the administration of justice.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>6. Section 340 CrPC prescribes the procedure as to how a complaint may be preferred under Section 195 CrPC. While under Section 195 CrPC it is open to the court before which the offence was committed to prefer a complaint for the prosecution of the offender, Section 340 CrPC prescribes the procedure as to how that complaint may be preferred. Provisions under Section 195 CrPC are mandatory and no court can take cognizance of offences referred to therein (sic). It is in respect of such offences the court has jurisdiction to proceed under Section   340   CrPC   and   a  complaint outside the provisions of Section 340 CrPC cannot be filed by any civil, revenue or criminal court under its inherent jurisdiction.\"<br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>20. As already mentioned, clauses under Section 195(1)(b) of the Cr.P.C. i.e. sub­section 195(1)(b)(i) and sub­section 195(1)(b)(ii) cater to separate offences. Though Section 340 of the Cr.P.C. is a generic section for offences committed under Section 195(1)(b), the same has different and exclusive application to clauses (i) and (ii) of Section 195(1)(b) of the Cr.P.C. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>21. <i>In Sachida Nand Singh (supra) relied on by the learned counsel for the appellant, </i>this Court was considering the question as to whether the bar contained in Section 195(1)(b)(ii) of the Cr.P.C. is applicable to a case where forgery of the document was committed before the document was produced in a court. It was held:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>\"6. A reading of the clause reveals two main postulates for operation of the bar mentioned there. First is, there must be allegation that an offence (it should be either an offence described in Section 463 or any other offence punishable under Sections 471, 475, 476 of the IPC) has been committed. Second is that such offence should have been committed in respect of a document produced or given in evidence in a proceeding in any court. There is no dispute before us that if forgery has been committed while the document was in the custody of a court, then prosecution can be launched only with a complaint made by that court. There is also no dispute that if forgery was committed with a document which has not been produced in a court then the prosecution would lie at the instance of any person. If so, will its production in a court make all the difference?</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>22<i>. In Sachida Nand Singh</i> (supra), this Court had dealt with Section 195(1)(b)(ii) of the Cr.P.C unlike the present case which is covered by the preceding clause of the Section. The category of offences which fall under Section 195(1)(b)(i) of the Cr.P.C. refer to the offence of giving false evidence and offences against public justice which is distinctly different from those offences under Section 195(1)(b)(ii) of Cr.P.C, where a dispute could arise whether the offence of forging a document was committed outside the court or when it was in the custody of the court. Hence, this decision  has no application to the facts of the present case. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>23. The case in hand squarely falls within the category of cases falling under Section 195(1)(b)(i) of the Cr.P.C. as the offence is punishable under Section 193 of the IPC. Therefore, the  Magistrate has erred in taking cognizance of the offence on the basis of a private complaint. The High Court, in our view, has rightly set aside the order of the Magistrate. However, having regard to the facts and circumstances of the case, we deem it proper to set aside the costs imposed by the High Court. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>24. The appeal is disposed of accordingly.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b321bd5612887332d2e12611df6e057d.jpeg', 'd1d55bfdf3f4692e02ecec3e50e44598.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-15', 1, '', '', '2022-03-15 23:54:34', '2022-03-16 05:01:26');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1425, 'NFiM91vsbxqQhrJ9Rg0UIIsxp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'High Courts are well within their domain in prescribing age limit for District Judge\'\'. Supreme Court while upholding Delhi High Court rule requiring candidates to be at least 35 years of age. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>High Court of Delhi Vs Devina Sharma.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2017-2020 of 2022 decided on 14 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A S Bopanna and Justice Hima Kohli.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. These appeals arise from orders of a Division Bench of the High Court of Delhi dated 4 March 2022 and 8 March 2022. The petitions before the High Court under Article 226 of the Constitution have raised issues pertaining to the validity of: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>(i) The upper age limit of 32 years for appearing for the Delhi Judicial Service1 examination; and</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>(ii) The minimum age requirement of 35 years for appearing for the Delhi Higher Judicial Service2 examination. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>3. The High Court of Delhi issued notifications for conducting the examinations for DJS and DHJS on 23 February 2022. For the DJS, the last date for submission of forms is 20 March 2022 and the examination is scheduled to take place on 27 March 2022. For DHJS, the last date for submission of forms was 12 March 2022 while the date of the examination is 20 March 2022. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>4. The bone of contention pertains to Rule 14(c) of the Delhi Judicial Service Rules 1970. Un-amended Rule 14(c) stipulated that a candidate shall be eligible to appear at the examination if he is not more than 32 years of age on the 1st day of January following the date of commencement of the examination. The above rule was amended on 11 February 2022 so as to stipulate that a candidate shall be eligible to appear at the examination if he is not more than 32 years of age on the 1st day of January of the year in which the applications for appointment are invited. The High Court of Delhi conducted the last examination for recruitment to the DJS in 2019. It is common ground that no examination was held in 2020 for institutional reasons and in 2021 due to the onset of the Covid-19 pandemic. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>5.  The grievance of the petitioners before the High Court is that candidates who would have qualified in terms of the upper age limit of 32 years for DJS, as stipulated in Rule 14(c), would now cease to be eligible by virtue of the fact that the examination is being held in March 2022. In terms of amended Rule 14(c) they would have crossed the age of 32 years on the 1st day of January of the year in which the applications for appointment are invited. In other words, it has been urged that if the High Court had conducted the examination on schedule in 2020 and 2021, such candidates would have qualified for the examination since they were within the age limit of 32 years for the relevant year. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>6.  When the petition was moved before the High Court, the Division Bench by its interim order dated 8 march 2022 directed that the date for receiving applications shall be rescheduled to a date after the next date of hearing and the date of holding the examination shall also be postponed. The proceedings were directed to be listed on 7 April 2022 before the same Bench which was seized of an earlier writ petition, Writ Petition (Civil) No 3636 of 2022 after obtaining the orders of the Chief Justice. Effectively therefore, by the interim order of the High Court, the examination for DJS which was scheduled to take place on 27 March 2022 would stand postponed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>7. Aggrieved by the interim order of the High Court, the jurisdiction of this Court under Article 136 of the Constitution has been invoked by the High Court of Delhi on the administrative side. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>8. The earlier petition before the High Court related to the recruitment process for DHJS which resulted in an interim order of the Division Bench dated 4 March 2022. The backdrop of the grievance before the High Court was that in 2019, the High Court had amended the DHJS Rules by a notification dated 26 December 2019. Rule 9(3) specifies the qualifications for direct recruits. The requirement of a minimum age of 35 years was deleted by the notification of the High Court dated 26 December 2019. Subsequently, by a notification dated 8 February 2022, Rule 9(3) was amended so as to stipulate the requirement that the candidate must have attained the age of 35 years. Rule 9(3) also provides that the candidate should not have attained the age of 45 years on the 1st day of January of the year in which the applications for appointment are invited. The submission is that under Article 233 of the Constitution, the only qualification for being appointed as a District Judge is continuous practice of seven years as an advocate or a pleader. Hence, the submission is that though the Constitution does not prescribe a minimum age limit for appointment as a District Judge, Rule 9(3) introduces such a requirement which would be in breach of the constitutional requirement. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>9. The High Court by its interim order dated 4 March 2022 held that since the minimum age limit had been reintroduced after a hiatus of two years, the matter would require consideration. While directing that the petition should be listed on 7 April 2022, the High Court has directed that the date for filling up the online application forms should be extended beyond the next date of hearing. Effectively, as a consequence of the interim order of the High Court, the examination which was scheduled to be held on 20 March 2022 would stand postponed. The High Court on its administrative side is before this Court in proceedings under Article 136 of the Constitution.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10. On 11 March 2022, while issuing notice in the Special Leave Petition3 relating to the DJS examination, this Court passed the following order:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>“The Court is convened through Video Conferencing. Heard learned senior counsel appearing on behalf of the petitioner as also the respondent, who has appeared in person. Issue notice. The respondent, who appeared in person, accepts notice. The respondent is directed to file her response by the respondent claims that because of pandemic, she did not have opportunity to appear in the Delhi Judicial Services Examination for the last two years. She, accordingly, prays that as she has crossed the prescribed age limit of 32 years in the process, she may be permitted to appear in the present examination. However, learned senior counsel appearing on behalf of the petitioner submits that approximately 5,700 candidates have applied for the said examination and the time schedule has already been fixed for the same. Taking into consideration the fact that the time schedule of the above-mentioned examination has already been fixed by the Delhi High Court, we deem it appropriate to hear the matter and dispose of the same in accordance with law without stalling the examination process. However, taking into consideration the facts and circumstances of the instant case, we permit the respondent to submit her application for the aforesaid examination which shall remain subject to the outcome of this petition. List the matter on 14.03.2022. The petitioner is directed to supply a copy of the petition to the respondent-in-person immediately.”</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. Likewise, while entertaining the Special Leave Petitions4 pertaining to the DHJS examination, this Court passed the following order on 11 March 2022:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>“The Court is convened through Video Conferencing. Heard learned senior counsel appearing on behalf of the petitioner. Issue notice. Dasti, in addition, is permitted. It is noted that the respondents who preferred writ petitions before the High Court have not submitted any application for the Delhi Higher Judicial Services Examination, which is going to be conducted on 20.03.2022. The respondents moved the Delhi High Court straightway for relaxation of their age to appear in the above-mentioned examination. The High Court while issuing notice, directed to extend the date for filling up the online application form beyond the next date of hearing i.e. 07.04.2022. Having heard learned senior counsel appearing on behalf of the petitioner and taking into consideration the fact that already more than 1200 applications have been received for the aforesaid examination, we are prima facie of the view that it is not appropriate to extend the time limit which was prescribed. Hence, we direct the learned senior counsel for the petitioner to inform the respondents through mobile phone or e-mail to submit their applications within the time limit prescribed by the High Court i.e. 12.03.2022, which shall, however, remain subject to the outcome of these petitions. Learned senior counsel is further directed to inform the counsel for the respondents about the instant order also. List these matters on 14.03.2022.”</i><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>12. Following the interim order of this Court, the petitioners before the High Court have appeared through learned counsel. In addition, this Court is also seized of a number of intervention applications by persons who are not before the High Court, but claim the benefit of the directions contained in the interim orders dated 11 March 2022. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>13. We have heard Mr A D N Rao, learned senior counsel appearing on behalf of the High Court of Delhi. On behalf of the respondents and the intervenors, we have heard Mr Devadatt Kamat and Mr Amarjit Singh Chandhiok, learned senior counsel. The intervenors have been represented in these proceedings by Mr Sidharth Luthra, Ms Anitha Shenoy and Mr Dama Seshadri Naidu, learned senior counsel and Mr Aditya Singh, Mr Amarjit Singh Chandhiok, Mr Ranjan Nikhil Dharnidhar and Mr Deepkaran Dalal, learned counsel. Mr Anuj Sharma, one of the intervenors has also appeared in-person. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>14. We would deal with the issues pertaining to DJS and DHJS separately. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>15. In order to enable the Court to render a full and complete adjudication of the proceedings, the writ petitions before the High Court under Article 226 of the Constitution stand transferred to this Court. We have had the benefit of the submissions urged on both the sides. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>16.  At the outset, Mr A D N Rao, learned senior counsel appearing on behalf of the High Court of Delhi has stated that the High Court did not conduct the examination which was scheduled to be held in 2020 and in 2021 for DJS. The examination for 2020 could not be held for procedural reasons since the process for the earlier recruitment year, 2019, had not been completed. As regards the examination for 2021, it has been stated by the learned senior counsel that the examination was not held due to the onset of the Covid -19 pandemic. In this backdrop, learned senior counsel submitted that candidates who would otherwise qualify in terms of the upper age limit of 32 years if the exams were held in 2020 and 2021, would now become age barred since the examination is being held pursuant to the notification which was issued on 23 February 2022. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>17. Having regard to the above situation, it has been submitted by Mr A D N Rao that this Court may, particularly having regard to the interim order dated 11 March 2022, grant the same benefit to all candidates, who would have qualified for the examination, had the examination been conducted in 2020 and 2021 on the basis of the rules as they then stood. In order to effectuate this, it has been submitted on behalf of the High Court of Delhi that the last date for the acceptance of applications may be suitably postponed by this Court, with the consequence that the dates for the examination may be rescheduled. The High Court has stated that if this Court were to accept the suggestion, a communication would be uploaded on the website of the High Court for the intimation of all prospective applicants so that candidates who would have been eligible during the recruitment years 2020 and 2021 may be considered for the ensuing process as a one-on time measure. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>18. The time schedule for conducting the recruitment process to the judicial service has been stipulated by the judgment of this Court in Malik Mazhar Sultan (3) vs Uttar Pradesh Public Service Commission6. The object and purpose of the directions of this Court has been to ensure that the recruitment process for the judicial service is conducted on schedule every year, subject to the rules of each High Court. The High Court of Delhi held its last examination for recruitment to DJS in 2019. Admittedly, no examination has been held in 2020 or in 2021. The examination for 2020 could not be conducted since the process for 2019 was still to be completed. The examination for 2020 could not be held due to the onset of the Covid-19 pandemic. In this backdrop, since the examination was not conducted for two recruitment years, the High Court has after considering the issue stated before this Court through the learned senior counsel that as a one-time measure, this Court may accept the suggestion that candidates who would have qualified for the examinations were they to be held on schedule for recruitment years 2020 and 2021 in terms of the rules as they then stood, may be permitted to appear for the ensuing examinations. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>19. Having regard to the fact that the recruitment examination for DJS has been last held in 2019 and two recruitment years have elapsed in the meantime, we are of the view that the suggestion of the High Court should be accepted for this year. The consequence of the acceptance of the suggestion by this Court, would be that candidates who would have fulfilled the upper age limit of 32 years, for the recruitment years 2020 and 2021 would be eligible to participate in the examination for the ensuing recruitment year 2022. The age bar which they would now encounter is not of their own volition. The real element of hardship faced by such candidates has been remedied by the High Court and there is no reason for this court not to accept the suggestion. The examination cannot however, be postponed indefinitely nor can the candidates who have applied be left in a state of uncertainty. The existing candidates can have no grievance by the widening of the competition. In order to facilitate this exercise, we accept the suggestion of the High Court that the last date for the receipt of application forms shall be extended to 3 April 2022 and the examination shall be held on 24 April 2022. We direct that no impediment shall be caused in the conduct of the examination and no court shall issue any order of stay at variance with or contrary to the above directions of this Court. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>20. A communication of the modified dates in the above terms shall be placed on the website of the High Court of Delhi. Delhi Higher Judicial Service. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>21. The challenge before the High Court in the writ petitions pertains to the determination of a minimum age requirement of 35 years for appearing for the Higher Judicial Service. Mr Amarjit Singh Chandhiok, learned senior counsel appearing on behalf of the petitioners before the High Court submits that:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(i) Article 233 of the Constitution does not contain any requirement of a minimum age and the only requirement is that in order to qualify for appointment as District Judge, a person should have been an advocate or a pleader for not less than 7 years;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(ii) No minimum age requirement is specified for appointment to the judicial service as a consequence of which, candidates who complete 10 years of service in the judicial service would be eligible for being appointed to the Higher Judicial Service before they attain the age of thirty five;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(iii) The High Court itself had removed the minimum age requirement of 35 years in 2019 which has been reintroduced in February 2022; and</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(iv) Persons, such as the petitioners before the High Court should therefore be given an opportunity of appearing for the examinations for the reason that until the rules were modified in February 2022, they would have been eligible to appear for the examination if it was held at the material time in 2020 and 2021.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>22. The submission which has been urged by Mr Chandhiok, learned senior counsel has been also adopted by Mr Sidharth Luthra, Ms Anitha Shenoy and Mr Dama Seshadiri Naidu, learned senior counsel as well as the counsel appearing on behalf of the intervenors and the intervenor in-person. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>23. Mr A D N Rao, learned senior counsel appearing on behalf of the High Court has opposed the submission. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>24. In order to consider the tenability of the submission, it must be noted at the outset that the First National Judicial Pay Commission, commonly known as the Shetty Commission, recommended the introduction of the requirement that for direct recruitment to the cadre of District Judges, candidates should be between the age of 35 and 45 years with an upper age relaxation of three years for SC/ST candidates. Paragraph 10.93 of the recommendations of the Shetty Commission is extracted below:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>“…we recommend that the candidates for direct recruitment to the cadre of District Judges should be between 35 and 45 years and the upper age may be relaxed by 3 years for SC/ST candidates.\"</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>25. The recommendations of the Shetty Commission were initially followed by an order of a three-Judge Bench of this Court in All India Judges Association vs Union of India. By the order of this Court, the States and the Union Territories to whom a copy of the report had been submitted were directed to submit their responses to the Union of India expeditiously. Eventually, the report of the Shetty Commission resulted in the judgment of a three-Judge Bench of this Court in All India Judges Association vs Union of India. The rules of several High Courts provide that for recruitment to the Higher Judicial Service, the candidate should be of a minimum age of 35, with a maximum age limit of 45 years. For instance, the rules pertaining to the UP Higher Judicial Service were noticed in a decision of a two-Judge Bench of this Court in Hirandra Kumar vs High Court of Judicature at Allahabad. The prescription of a rule providing for a minimum age requirement or maximum age for entry into service is essentially a matter of policy. After noticing the earlier precedents on the subject, this Court in Hirandra Kumar (supra) observed that the determination of cut-offs lies in the realm of policy. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>26. The submission of the appellants, to the effect that the prescription of a minimum age would be contrary to the constitutional provision contained in Article 233 of the Constitution, cannot be accepted. Article 233(2) of the Constitution stipulates that a person not already in the service of the Union or of a State shall only be eligible to be appointed a District Judge if he has been, for not less than 7 years, an advocate or a pleader and is recommended by the High Court for appointment. Clause (1) of Article 233 stipulates that appointments of persons, posting and promotion of District Judges shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to the State. Article 235 entrusts to the High Court control over the district courts and courts subordinate thereto including the posting and promotion of and the grant of leave to persons belonging to the judicial service to the State and holding any post inferior to the post of District Judge. The Constitution has prescribed the requirement to the effect that a person shall be eligible for appointment as a District Judge only if he has been an advocate or a pleader for at least seven years. What this means is that a person who has not fulfilled the seven year norm is not eligible. The Constitution does not preclude the exercise of the rule making power by the High Courts to regulate the conditions of service or appointment. The silences of the Constitution have to be and are supplemented by those entrusted with the duty to apply its provisions. The Constitution being silent in regard to the prescription of a minimum age, the High Courts in the exercise of their rule making authority are entitled to prescribe such a requirement. Direct recruitment to the Higher Judicial Service is intended to be from members of the Bar who have sufficient experience. The post of a District Judge is at a senior level in the cadre. Age is not extraneous to the acquisition of maturity and experience, especially in judicial institutions which handle real problems and confront challenges to liberty and justice. The High Courts are well within their domain in prescribing a requirement which ensures that candidates with sufficient maturity enter the fold of the higher judiciary. The requirement that a candidate should be at least 35 years of age is intended to sub-serve this. Except for a short period when the requirement of a minimum age of thirtyfive was deleted, the Delhi High Court has followed the norm. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>27.  In the circumstances, we are of the view that there is no merit in the submission which has been urged on behalf of the petitioners before the High Court and the intervenors who have not fulfilled the age requirement of 35 years. Though for a short period of about a year, the High Court had deleted the requirement of a minimum age of 35 years for entry into the Higher Judicial Service, the High Court has set right the rule so as to bring it into conformity with the recommendations of the Shetty Commission. The deletion of the minimum age requirement of 35 years in 2019 may have been guided by the need to attract a larger pool of applicants to DHJS. But the reinstatement of a minimum age requirement of 35 years is a matter of policy. This conforms to the recommendation of the Shetty Commission. Hence, there is no valid basis for this court to hold that the requirement that a candidate for the DHJS should be at least thirty-five years of age is invalid. We do not find any merit in the challenge which has been urged on behalf of the appellants to that extent. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>28. During the course of the hearing, this Court has been apprised of the fact that several applicants for the higher judicial service examination would have qualified in terms of the upper age limit of 45 years in 2020 or, as the case may be, 2021. As a matter of fact, Mr A D N Rao indicates that he has instructions to the effect that some of those candidates may already have or would be in the process of moving petitions before the High Court. The reasons which have weighed with this Court in allowing the High Court, as a one-time measure, to permit candidates for the DJS examination who had qualified in terms of the upper age limit of 32 years during the recruitment years 2020 and 2021, should on a parity of reasoning be extended to candidates for the DHJS examination who would have qualified in terms of the upper age limit of 45 years during the recruitment years 2020 and 2021 during which no examinations could take place for the reasons which have been noticed earlier. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>29.  In order to obviate any further litigation and uncertainty, we permit the High Court as a one-time measure to allow those candidates who were within the age cut-off of 45 years during the recruitment years 2020 and 2021 to participate in the ensuing DHJS examinations. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>30.  For the Delhi Higher Judicial Service, the last date for the receipt of applications shall stand extended to 26 March 2022 while the examination shall be held on 3 April 2022, in those terms as stated before this court by senior counsel representing the High Court. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>31.  The High Court of Delhi shall upload a corrigendum indicating the above relaxation on its website. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>32. The appeals are partly allowed in the above terms. The writ petitions before the High shall stand disposed of. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>33.  Pending applications, if any, stand disposed of.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '03ff8390c10c725c754533719a9077d4.jpeg', 'b8db77755189a994c54c8e9d0cf7cd57.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-16', 1, '', '', '2022-03-16 17:35:50', '2022-03-17 05:11:00');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1426, 'j1SvblYXhQIaqjiYIcCr2pQ5r', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Interpretation of statutes. Introduction of new legislation by undertaking the exercise of reading down is impermissible when language of the rule is clear and unambiguous. Supreme Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Secretary Local Self Government Department and Others Vs K Chandran.   <o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 7437-7438 of 2021 decided on 15 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sanjay Kishan Kaul and Justice M.M Sundresh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. On the conviction in a criminal case for violation of integrity norms in performance of official duties and an appeal pending before the High Court, is the employee still entitled to the release of his Death-cum- Retirement Gratuity (for short ‘DCRG’) is the moot point arising for consideration in the present appeals. We are, in fact, examining a Full Bench judgment of the Kerala High Court which resolved the conflict of view of the Division Benches and ruled in favour of the employees. The controversy having been set down, the Government of Kerala, which is naturally aggrieved by the decision of the Full Bench is before us on the aforesaid issue.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Factual Background: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. In the main appeal before us, the question of law is the same but the facts differ in the two cases of the two employees. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. (A) K. Chandran, the respondent in the appeal was working as Village Extension Officer, Noolaphuza. In the course of his employment the Vigilance Department registered a crime under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1998 (hereinafter referred to as the ‘PC Act’) alleging that he had received Rs.500 as bribe from one K.K. Mohanan. Mr. Chandran was suspended from service on 27.10.2006 and was reinstated in service on 01.03.2008. He retired from service on 31.03.2011 on superannuation while working as the General Extension Officer in Wayanad. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. The Inquiry Commissioner and Special Judge, Kozhikode convicted K. Chandran vide judgment dated 29.07.2011 in CC No.13/2008 and sentenced him to undergo rigorous imprisonment (for short ‘RI’) for 2 years and a fine of Rs.5,000. Aggrieved by the same, K. Chandran filed an appeal before the High Court of Kerala, which was registered as Crl. A. No.6053/2013. The appeal was admitted and the sentence was suspended in the meantime. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. K. Chandran submitted a request before the Accountant General to release his DCRG in 2014. On not receiving a favourable response, he filed an application numbered O.A.(EKM) No.104/2014 before the Kerala Administrative Tribunal (for short ‘KAT’), which dismissed his application on 09.12.2014 on the ground that judicial proceedings had been concluded and K. Chandran had been convicted. The issue which arose pertained to the intent and purport of Rule 3A of Part III of the Kerala Service Rules (for short ‘KSR’), which was stated to require the outcome of departmental or judicial proceedings to be concluded for the release of DCRG. Thus, if the criminal case went against K. Chandran, it had to be withheld or otherwise it had to be released. It was opined that K. Chandran being a convict and that too for receiving a bribe, could not claim entitlement to the DCRG and, thus, accepting his application would defeat the very purpose of the Rule. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.(B) D. Alexander, another respondent in this matter allegedly committed an offence punishable under Section 120B of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’) and Sections 7, 13(1)(d) read with Section 13(2) of the PC Act while he was in service and a vigilance case was initiated against him. He was suspended from service on 28.11.2003 and was reinstated in service on 29.03.2004. He retired from service on 30.04.2004 on superannuation while working as the Taluk Supply Officer of Mukundapuram, Irinjalakuda. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. The Inquiry Commissioner and Special Judge, Thrissur convicted D. Alexander vide judgment dated 11.07.2014 in CC No.07/2006 and sentenced him to undergo RI for 2 years and a fine of Rs.2,000. An appeal was filed before the High Court of Kerala, being Crl. A. No.672/2014, the same was admitted and the sentence suspended pending the disposal of the appeal which is still pending before the High Court of Kerala. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. D. Alexander was also aggrieved by the non-issuance of the DCRG and, thus, filed O.A. No.300 of 2015 before the KAT. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. He submitted that the DCRG can only be withheld only until the proceedings against an employee are concluded. The vigilance case against him had already been concluded in terms of the judgment dated 11.07.2014. The KAT, however, observed that the pensionary claims of D. Alexander had been duly admitted but only provisional pension was granted to him since a vigilance inquiry was pending against him at the time of retirement. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. It was opined that the appeal instituted by D. Alexander was not capable of being treated as a proceeding against him and therefore, no judicial proceedings were pending against him. The KAT directed the State to release the DCRG and other pensionary benefits of D. Alexander without any delay, within a period of three months from the date of receipt of the order. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. We thus set forth the factual matrix of the two cases wherein different conclusions were reached on the interpretation of the rules. We may also note here that the Government of Kerala had issued specific guidelines on 27.03.2002 directing the authorities to finalise departmental action or vigilance inquiries within one year of the retirement. That period expired a long time ago. Thus, there is no issue here of any future departmental proceedings being initiated irrespective of the results of the criminal appeals. The result of the appeals or any proceeding arising further would determine the fate of the respondents insofar as the charge against them is concerned. The only issue, thus, to be examined by the High Court was whether pending criminal appeal, and with the sentence being suspended, could the DCRG be directed to be released on the construction of the applicable rules. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. In the two factual matrices referred to, K. Chandran approached the High Court of Kerala in O.P.(KAT) No.78/2015 seeking to set aside the order and requiring the disbursement of DCRG within a fixed time, while the State in the latter matter of D. Alexander approached the High Court of Kerala in O.P.(KAT) No.428/2019 for setting aside of the relief which had been granted to the employee. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. In view of there being a divergence of opinion, the Division Bench considered it appropriate to refer the matter to a larger Bench as the two applications before the KAT had produced different results.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">14. </font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">The State of Kerala sought to advance a plea that normally there cannot be any proceedings continued against a Government servant after retirement as the employer-employee relationship does not subsist. However, Rule 3 in the KSR deems continuation of service in the case of a delinquent servant even after superannuation if any departmental or judicial proceedings are initiated, for the limited purpose of their finalisation. A punishment under Rule 3 could be for grave misconduct or negligence which may also lead to dismissal. In the event of an order of dismissal being passed, even after retirement, the Government servant would have to forfeit his pension and DCRG. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">15.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">On the other hand, the counsel for K. Chandran and D. Alexander sought to canvas the valuable right of a Government servant flowing from service rules. As a consequence, any action could only be taken against pension and not against DCRG. There was contended to be no enabling provision allowing automatic forfeiture of DCRG on conviction in a criminal proceedings and hence it cannot be withheld even if the proceedings culminate adversely against the employee. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">16.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">The High Court in terms of the impugned judgment dated 08.09.2020 opined in favour of the respondent-employees. Rule 3 of the KSR was read as empowering the Government to punish the delinquent employee by withholding, withdrawing or reducing, for a specified period or permanently, the pension payable or to order recovery for any pecuniary loss, but again only from the pension. The same could not be done from the DCRG. Rule 3A of the KSR was opined to be only tailored towards the effective implementation of Rule 3 and could not have any separate or distinct consequences. Rule 3A having two parts, it was opined that the first part dealt with certain conditions on the disbursal of pension in the cases of a continuing proceeding while the second part allowed DCRG or gratuity to be withheld until the conclusion of the proceedings. The second part was held to have an unnecessary penalising effect on an employee while proceedings are pending and would have onerous consequences if the proceedings ended in exoneration. This was so as the provision did not contemplate any modality for recompensation if the DCRG is paid after a long period of time. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">17.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">The High Court also referred to Ruling Nos. 2 & 3 under Rule 3 of the KSR providing that the disciplinary authority was only empowered to reach a finding and the ultimate action could only be taken by the Public Service Commission. The conclusion, thus, sought to be drawn was that it showed that the Government was conscious of the deleterious effect of withholding of pension on an employee. Note 2 to Rule 3 provided that the word ‘pension’ did not include DCRG and, thus, liabilities could be recovered from DCRG only after giving the employee a reasonable opportunity to explain. Ruling 3 clarified that consent was not necessary from the employee before recovering the same and only a communication of such liability was necessary. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">18.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">In view of the aforesaid, it was held that the recovery under Rule 3 could only be against pension and not DCRG, and Rule 3A insofar as it permitted DCRG to be withheld was struck down.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The Rules: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space: pre;\">	</span>The relevant Rules of the KSR read as under: <i>“THE KERALA SERVICE RULES PART III PENSION CHAPTER I SECTION 1 – General Rules”</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>“3 The Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to government if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement: Provided that –</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b> (a)<span style=\"white-space: pre;\">	</span>such departmental proceeding, if instituted while the employee was in service, whether before his retirement or during his re- employment, shall after the final retirement of the employee, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the employee had continued in service;</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(b)<span style=\"white-space: pre;\">	</span>such departmental proceeding, if not instituted while the employee was in service, whether before his retirement or during his reemployment,- (i)<span style=\"white-space: pre;\">	</span>shall not be instituted save with the sanction of the Government;</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(ii)<span style=\"white-space: pre;\">	</span>shall not be in respect of any event which took place more than four years before such institution; and</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(iii)<span style=\"white-space: pre;\">	</span>shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceeding in which an order of dismissal from service could be made in relation to the employee during his service;</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(c)<span style=\"white-space: pre;\">	</span>no such judicial proceedings, if not instituted while the employee was in service whether before his retirement or during his reemployment, shall be instituted, save with the sanction of the Government, in respect of a cause of action which arose or an event which took place more than four years before such institution and;</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(d)<span style=\"white-space: pre;\">	</span>The public Service Commission shall be consulted before final orders are passed. Explanation: - For the purpose of this rule –</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(a)<span style=\"white-space: pre;\">	</span>a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the employee or pensioner or if the employees has been placed under suspension from an earlier date, on such date; and</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(b)<span style=\"white-space: pre;\">	</span>a judicial proceeding shall be deemed to be instituted-</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(i)<span style=\"white-space: pre;\">	</span>in the case of a criminal proceeding, on the date on which the complaint or report of police officer on which the Magistrate takes cognizance, is made, and (ii)<span style=\"white-space: pre;\">	</span>in the case of a civil proceeding, on the date of presentation of the plaint in the Court.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>Note1.- As soon as proceedings of the nature referred to in this rule are instituted the authority which institutes such proceedings should without delay intimate the fact to the Audit Officer. The amount of pension withheld under this rule should not ordinarily exceed one–third of the pension originally sanctioned. In fixing the amount of pension to be so withheld regard should be had to the consideration whether the amount of the pension left to the pensioner in any case would be adequate for his maintenance.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>Note2.- The word ‘pension’ used in this rule does not include death-cum-retirement-gratuity. Liabilities fixed against an employee or pensioner can be recovered from the death-cum- retirement-gratuity payable to him without the departmental / judicial proceedings referred to in this rule, but after giving the employee or pensioner concerned a reasonable opportunity to explain.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>Note-3 The liabilities of an employee should be quantified either before or after retirement and intimated to him before retirement within a period of three years on becoming pensioner. The liabilities of pensioner should be quantified and intimated to him.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>RULING No. 1 Amounts due from a Government employee or pensioner to Government Companies, Local Bodies, Co-operative Societies, etc., though not treated as Government dues may be recovered from the death-cum-retirement gratuity payable to him with his consent in writing.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>RULING No. 2 According to proviso (a) under this rule, departmental proceedings, if instituted while the employee was in service, whether before his retirement or during his reemployment, shall after the final retirement of the employee be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the employee had continued in service. A doubt was raised as to whether in the case of an employee whose case falls within the purview of the proviso and proceedings against whom were instituted by an authority subordinate to Government, order for withdrawal/ withholding of pension can be passed by the subordinate authority on the conclusion of the proceedings. The function of the Disciplinary Authority is only to reach a finding on the charge and to submit a report recording its findings to the Government. Government will then consider the findings and take a final decision. In case Government decide to take further action under Rule 3 the Government will serve the person concerned with a show-cause notice specifying the action proposed to be taken under this rule and the person concerned will be required to submit his reply to the show-cause notice within such time as may be specified by the Government. The Government will consider the reply in consultation with the Public Service commission and pass necessary orders in the name of the Governor. The above procedure in regard to the issue of show-cause notice will also apply to a case where the Governor functions as the Disciplinary Authority. </b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>RULING No.3 The note 2 above does not mean that the employee’s or pensioner’s consent should be obtained for recovering the liabilities from the death-cum-retirement gratuity payable to him. What it contemplated is only a communication of such liabilities to him so as to enable him to submit his explanation before the recovery is effected. It should be specifically stated in the communication that if no reply is received within 30 days of its issue, it will be presumed that the employee or pensioner has no explanation to offer and that further action will be taken on that basis. 3-A.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(a) Where any departmental or judicial proceedings is instituted under Rule 3 or where a departmental proceeding is continued under clause (a) of the proviso thereto, against an employee who has retired on attaining the age of compulsory retirement or otherwise he shall be paid during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceeding final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service up to the date of retirement, or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension, but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceeding and the issue of final orders thereon.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\"><i>(b) Payment of provisional pension made under clause (a) shall be adjusted against the final retirement benefits sanctioned to such employee upon conclusion of the aforesaid proceeding, but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period. Note:- The grant of pension under this rule shall not prejudice operation of Rule 59 when final pension is sanctioned upon conclusion of the proceeding.”</i></font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The Appellant’s submissions: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20. Learned counsel for the appellant contended that Rule 3 reserves with the Government the right to withhold or withdraw pension and the proviso  stipulates  that  if  such  departmental  proceedings  are instituted while an employee was in service, they are to be deemed to be proceedings under this Rule even post retirement. Note 2 to Rule 3 of  the KSR states that the liabilities against an employee or pensioner can be recovered from the DCRG without any departmental or judicial proceedings but after giving such a person a reasonable opportunity to explain. Thus, DCRG can be utilised to compensate the losses of the department. Ruling 1 to Rule 3 states that the amounts due from a Government employee or pensioner may be recovered though not treated as Government dues. It was, thus, contended that Rule 3 allows recovery of amounts due to the Government from DCRG even as recovery from pension is restricted so as to enable the pensioner to maintain themselves. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>21. Rule 3A was contended to be applicable to departmental/judicial proceedings which had not concluded. Thus, it provided for payment of provisional pension to an employee and was independent of what has been observed in Rule 3. His contention was that the High Court proceeded on a wrong premise that Rule 3A was only for effective implementation of Rule 3.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>22. A reference was also made to Clause 303A(4) of the Kerala Financial Code, Volume I, which provides that a loss sustained by the Government  can  be  recovered  from the DCRG. The relevant portion reads as under:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>“General principles and procedure for fixing and enforcing responsibility for losses 303A. The following general principles should be followed in enforcing the personal responsibility of the Government servant or servants concerned for a loss sustained by the Government through fraud or negligence on his part or on the part of any other Government servant to the extent be contributed to the loss by his own action or negligence and of any person for a loss sustained by the Government on account of a criminal offence committed by him:—</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>“(4). (a) In cases where a competent authority holds that a Government servant is responsible for a loss sustained by the Government and orders that any amount should be recovered from him and he is about to retire from service, the amount should be recovered as far as possible by deduction from the last pay and allowances or leave salary due to him. If the amount due to Government exceeds the amount payable to the Government servant, the excess shall be recovered from his claim for death-cum-retirement-gratuity after giving the officer a reasonable opportunity to explain. If the amount proposed to be recovered exceeds the death-cum-retirement-gratuity, the excess over death-cum-retirement-gratuity can be recovered from the arrears of pension, if any, due to the officer if written consent is obtained from him as pension (as distinct from death-cum-retirement-gratuity) enjoys the protection of the ‘Pension Act’. A written consent is valid only to the extent it covers the amount of pension earned by him till the date of such written consent.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(b)<span style=\"white-space:pre\">	</span>If, however, the liabilities could not be finalised but could be estimated at the time of retirement, either the estimated amount of the outstanding dues plus 25 per cent thereof should be withheld from death-cum-retirement-gratuity or a surety bond or cash deposit not exceeding the estimated amount of the outstanding dues plus 25 per cent thereof should be accepted before releasing pension and death-cum-retirement gratuity.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(c)<span style=\"white-space:pre\">	</span>If disciplinary proceedings are being continued against an officer under the Service Rules on the date of retirement, only a provisional pension should be sanctioned to him withholding however, the entire death-cum-retirement-gratuity due to him.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(d)<span style=\"white-space:pre\">	</span>In cases where the liabilities could not be estimated the pension and death-cum-retirement-gratuity will be released provisionally after withholding from the death-cum-retirement gratuity the amount noted below:</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(1)<span style=\"white-space:pre\">	</span>Officers in charge of cash or stores The full amount of death-cum- retirement gratuity.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(2)<span style=\"white-space:pre\">	</span>Gazetted<span style=\"white-space:pre\">	</span>Officers<span style=\"white-space:pre\">	</span>other than those in (1) above 10 per cent of the death-cum- retirement gratuity or Rs. 2,000 whichever is higher.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(3)<span style=\"white-space:pre\">	</span>Non-Gazetted<span style=\"white-space:pre\">	</span>Officers other than (1) 10 per cent of the death-cum- retirement gratuity or Rs. 600 whichever is higher In all cases where the liabilities could not be assessed and fixed before retirement of the Government servants, efforts should be made to assess and adjust the recoverable dues within a period of one year from the date of retirement of the Government servant concerned. If in any case, the liability could not be assessed and adjusted within one year, the amount withheld from the death-cum-retirement gratuity or the surety bond or cash deposit accepted under paragraph (c) or (d) above will be released. Disciplinary action shall be taken against the officers responsible for the failure to assess and adjust the liabilities within the prescribed period.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(e)<span style=\"white-space:pre\">	</span>If in any case the amount withheld from the death-cum- retirement gratuity or the cash deposit, or the surety bond taken from the officer is not adequate to cover the liabilities finally fixed, action should be taken against him under the Service Rules to make up the loss by withholding, withdrawing or effecting recoveries from the pensions sanctioned. If action under the Service Rules is not possible due to the expiry of the time limit prescribed for such action or due to any other reason, the retired officer will be proceeded against through a Civil Court for recovering the pecuniary loss caused to Government.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\"><i>(f)<span style=\"white-space:pre\">	</span>When a retired Government servant whose pension has already been sanctioned is held to have caused a loss to the Government by fraud or negligence while in service and it appears likely that the amount could be recovered by bringing a suit against him, the matter should be reported to the Government for orders. If in any particular case, it is not found feasible to take action against a retired Government servant in regard to a loss sustained by the Government on account of any fraud or negligence found to have been committed by him while in service, this should not be made an excuse for absolving any other Government servants who are also responsible for the loss and are still in service. Similarly, the fact that it is not possible to fix responsibility on the officials who initiated or acquiesced in the initiation of any irregularity resulting in loss to Government will not exonerate those who subsequently acquiesced in the continuation of the irregularity. It is the duty of all Government officials to look after the financial interests of Government and Government will hold their officers responsible for such irregularities, not only those who originated them but also those who subsequently permitted their continuance.”</i></font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23. In view of the aforesaid provision, it was contended that Rule 3A is necessary for temporary forfeiture of DCRG during pendency of departmental proceedings. Another contention sought to be raised was that Section 4(6)(b) of the Payment of Gratuity Act, 1972 (hereinafter referred to as the ‘Gratuity Act’) enables forfeiture of gratuity if the service of an employee has been terminated. Thus, unless a provision for forfeiture of DCRG during pendency of proceedings is maintained, no forfeiture at all can be effected after the disciplinary proceedings are complete and the observations of the High Court would render Section 4(6)(b) otiose. The relevant provision reads as under:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>“4. Payment of gratuity. – (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, -</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(a)<span style=\"white-space:pre\">	</span>on his superannuation, or</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(b)<span style=\"white-space:pre\">	</span>on his retirement or resignation, or</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(c)<span style=\"white-space:pre\">	</span>on his death or disablement due to accident or disease:” (6) Notwithstanding anything contained in sub-section (1), -</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(a)<span style=\"white-space:pre\">	</span>the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(b)<span style=\"white-space:pre\">	</span>the gratuity payable to an employee may be wholly or partially forfeited  -</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(i)<span style=\"white-space:pre\">	</span>if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.”</b></font></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><font face=\"Calibri, sans-serif\"><b><br></b></font></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>24. Learned counsel for the appellant submitted that the issue was really no more res integra in view of the judgment of this Court in Chairman-cum-Managing Director, Mahanadi Coalfields v. Rabindranath Choubey1 opining that an employer can withhold payment of gratuity even after retirement due to pendency of disciplinary proceedings until the same are concluded and that the High Court had incorrectly distinguished the judgment on the ground that the KSR did not have a provision for recovery of gratuity.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>25. Learned counsel for the respondent, on the other hand defended the High Court’s judgment and submitted that Chairman-cum- 1 (2020) 18 SCC 71 Managing Director, Mahanadi Coalfields2 of this Court interpreted the provisions of the Conduct, Discipline and Appeal Rules, 1978, which are the rules of a private company and provided for withholding of gratuity. The KSR stood on a different footing and did not empower the Government to withhold or recover any amount from the DCRG. Further, the Gratuity Act did not apply to Government employees of the State. In this behalf a reference was made to the definition of “employee” under Section 2(e) of the Gratuity Act, which reads as under: <i>“2. Definitions.—In this Act, unless the context otherwise requires, -“(e) “employee” means any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, [and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity. </i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>26. It was submitted that there is a specific exclusion of a person who holds the post under the Central or a State Government and is governed by any other Act or by any rules providing for payment of gratuity.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Our View:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>27. We have given thought to the matter and find it difficult to sustain the judgment of the High Court on the interpretation of the Rules. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>28. We must keep in mind the very objectives of holding back pension or the DCRG. One can be to recover the amounts found due from the delinquent employee of any nature whatsoever after appropriate notice and proceedings. The second eventuality is if an employee is dismissed from service. It can hardly be doubted that in the second eventuality of the dismissal from service the employee would lose all retirement benefits. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>29. In the present case separate departmental proceedings have not been concluded within the given timeframe. The State in its wisdom has deemed it appropriate to await the outcome of the criminal proceedings. The result of this would mean that the State would still be empowered to dismiss an employee from service based on the conviction in the criminal case. The State cannot have an opportunity to have separate disciplinary proceedings even if the acquittal takes place. If this were the intention, the departmental proceedings should have been concluded in the stipulated time. We are conscious of the fact that a mere acquittal in a criminal case would not imply that no action can be taken in departmental proceedings. However, the choice was with the State Government as to whether they would like to hold separate departmental proceedings or go by the final view of the criminal court, the latter is naturally based not on preponderance of probabilities but on proof beyond reasonable doubt. It is the latter course which the State has followed. Thus, an employee’s entitlement to all benefits and the right not to be now dismissed from service all inure if the criminal proceedings conclude in favour of the employee. However, were these proceedings to be concluded against the employee and the conviction upheld it cannot be said that the department would still be required to pay all the retirement benefits. The department can also pass an order of dismissal based solely on the criminal conviction. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>30. The aforesaid being the position, the question is as to what should be done in the hiatus period as per the Rules. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>31. The KSR do provide for a provisional pension so that the economic sustenance requirements of an employee are taken care of.  The provisional pension cannot be more than the actual pension. It is nobody’s case that the respondents-employees are not getting provisional pension. Note 1 to Rule 3 clarifies that even if the pension is finally withheld, ordinarily the withheld portion should not be more than 1/3rd of the pension originally sanctioned, as the issue of sustainability comes to the fore. However, there is no such limitation on the DCRG. The important aspect is whether Rule 3A is to be construed in the context of Rule 3 or should be read independently of itself. The High Court seeks  to take a view that Rule 3A is in a sense assisting Rule 3 and does not have any independent existence. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>32. We are unable to agree to this line of reasoning. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>33. Rule 1 to Part III of the KSR begins with the entitlement of pension of all employees to whom the service rules apply. Rule 2 stipulates that future good conduct shall be an implied condition of every grant of a pension and there is entitlement to withhold or withdraw a pension or part thereof whether permanently or for a specified period. In terms of Rule 2(b), where a pensioner is convicted of a serious crime by a court of law, action under clause (a) shall be taken in the light of the judgment of the court relating to such conviction. In the facts of the case it can hardly be said that the conviction on the ground of corruption would not be classified as a serious crime for a person holding a public post. In terms of clause (c) of Rule 2, in case of prima facie  guilt of grave misconduct, a procedure has been prescribed to be followed, which includes as per clause (d) of Rule 2 consultation with the Public Service Commission. It is after the aforesaid Rules that Rule 3  commences where the Government reserves to themselves the right to withhold or withdraw a pension or any part of it, whether permanently or for a specified period, and all its ramifications. Certain protective provisions have been made even in that eventuality. This provision is applicable to pension is clarified by Note 2, as it is stipulated that the word ‘pension’ would not include DCRG. Thus, DCRG and pension have been dealt with as separate aspects. The three Notes are followed then by Rulings 1, 2, & 3. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>34. However, Note 2 provides that the liabilities fixed against an employee or a pensioner can be recovered from DCRG without the departmental/judicial proceedings referred to in this Rule but after giving an employee or pensioner concerned a reasonable opportunity to explain. If any part of DCRG was not supposed to be available for recovery of amounts, there would be no reason of inclusion of this aspect of DCRG in Note 2 and a view to the contrary would make the latter part of Note 2 otiose. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>35. The aforesaid Note 2 is further clarified by Ruling No. 3, which stipulates that Note 2 does not mean that the employee’s or pensioner’s consent should be obtained for recovering the liabilities from DCRG. What has been contemplated is only a communication of such liabilities to him so as to enable him to submit his explanation. Thus, this Ruling No.3 also deals with the DCRG. It is thereafter that Rule 3A starts which refers to the grant of provisional pension not exceeding the maximum pension which would have been admissible on retirement where departmental or judicial proceedings have been initiated under Rule 3. It is clearly stipulated that no gratuity or DCRG shall be paid to him until the conclusion of such proceedings and the issuance of final order thereof. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>36. The High Court, in our view, has introduced a new legislation by undertaking the exercise of reading down. We do believe that there is absolutely no need to do so when the language of the rule is so clear conveying its intended meaning without any ambiguity. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>37. We are, thus, of the view that Rule 3A cannot be read in isolation nor the latter part of it struck down as done by the High Court. Rule 3, Note 2, Ruling 3, and Rule 3A have to be read in conjunction as they provide for the treatment of the DCRG in case of disciplinary or judicial proceedings pending at the stage of retirement. Even in the absence of these proceedings in certain eventualities the amounts can be recovered from the DCRG. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>38. We are of the view that the principle as enunciated in Chairman- cum-Managing Director, Mahanadi Coalfields would apply even though it is in the context of a different set of Rules. It would be suffice to reproduce paragraphs 11 & 11.2 and 46 & 47 of the said judgment as under:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>“11. Once it is held that a major penalty which includes the dismissal from service can be imposed, even after the employee has attained the age of superannuation and/or was permitted to retire on attaining the age of superannuation, provided the disciplinary proceedings were initiated while the employee was in service, subsection 6 of Section 4 of the Payment of Gratuity Act shall be attracted and the amount of gratuity can be withheld till the disciplinary proceedings are concluded.“11.2. It is required to be noted that in the present case the disciplinary proceedings were initiated against the respondent employee for very serious allegations of misconduct alleging dishonestly causing coal stock shortages amounting to Rs.31.65 crores and thereby causing substantial loss to the employer. Therefore, if such a charge is proved and punishment of dismissal is given thereon, the provisions of subsection 6 of Section 4 of the Payment of Gratuity Act would be attracted and it would be within the discretion of the appellantemployer to forfeit the gratuity payable to the respondent. Therefore, the appellant- employer has a right to withhold the payment of gratuity during the pendency of the disciplinary proceedings.”46. Several service benefits would depend upon the outcome of the inquiry, such as concerning the period during which inquiry remained pending. It would be against the public policy to permit an employee to go scotfree after collecting various service benefits to which he would not be entitled, and the event of superannuation cannot come to his rescue and would amount to condonation of guilt. Because of the legal fiction provided under the rules, it can be completed in the same manner as if the employee had remained in service after superannuation, and appropriate punishment can be imposed. Various provisions of the Gratuity Act discussed above do not come in the way of departmental inquiry and as provided in Section 4(6) and Rule 34.3 in case of dismissal gratuity can be forfeited wholly or partially, and the loss can also be recovered. An inquiry can be continued as provided under the relevant service rules as it is not provided in the Payment of Gratuity Act, 1972 that inquiry shall come to an end as soon as the employee attains the age of superannuation. We reiterate that the Act does not deal with the matter of disciplinary inquiry, it contemplates recovery from or forfeiture of gratuity wholly or partially as per misconduct committed and does not deal with punishments to be imposed and does not supersede the Rules 34.2 and 34.3 of the CDA Rules. The mandate of Section 4(6) of recovery of loss provided under Section 4(6)(a) and forfeiture of gratuity wholly or partially under Section 4(6)(b) is furthered by the Rules 34.2 and 34.3. If there cannot be any dismissal after superannuation, intendment of the provisions of Section 4(6) would be defeated. The provisions of section 4(1) and 4(6) of Payment of Gratuity Act, 1972 have to be given purposive interpretation, and no way interdict holding of the departmental inquiry and punishment to be imposed is not the subject matter dealt with under the Act. 47. Thus considering the provisions of Rules 34.2 and 34.3 of the CDA Rules, the inquiry can be continued given the deeming fiction in the same manner as if the employee had continued in service and appropriate punishment, including that of dismissal can be imposed apart from the forfeiture of the gratuity wholly or partially including the recovery of the pecuniary loss as the case may be.” </b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>39. We also believe that it is a very restrictive view to disburse DCRG on account of the proceedings against a pensioner coming to an end, even where a conviction has arisen. This is especially so where the convicted person has availed of the remedy of appeal. An appeal is a continuation of the proceedings in trial and would be, thus, a continuation of judicial proceedings. For example, if no appeal had been filed, can it be said that despite conviction in the criminal case, the State is without authority of forfeiting the DCRG or pension for that matter? If it is not so, as we believe, then the pendency of the appeal cannot disentitle the State from withholding the DCRG, considering that it is a hiatus period within which certain arrangements have to be made which would be dependent on the outcome of the appeal. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>40. Learned counsel for the respondent did seek to contend before us that if the appeals are pending over a long period of time it should not prejudice the respondents. That is a matter for them to take up before the High Court for disposal of the appeals, which are undoubtedly quite old.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>41. We have aforesaid also clarified that there is no question of any other departmental proceedings arising independently against the respondents, as the conclusion of the criminal proceedings would entitle the State to pass appropriate orders based solely on the result of the aforesaid proceedings. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Conclusion: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>42. We are, thus, of the view that the impugned judgment of the Full Bench of the Kerala High Court cannot be sustained, and it cannot be opined that the DCRG would have to be released to the respondents pending consideration of the criminal appeal. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>43. The impugned judgment is set aside and the appeals are accordingly allowed leaving the parties to bear their own costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9095a054b13b67e8155f13fb19b69f8d.jpeg', '054453f2fe48a71bce09c95581231e1f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-16', 1, '', '', '2022-03-16 18:09:49', '2022-03-17 08:30:30');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1427, 'TQ4aJ27hPK59VREOROqK8Zi67', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Even if a judicial officer is guilty of negligence in not taking note of High Court order while granting bail, the same can NOT be construed as misconduct unless it is an illegal order for extraneous considerations. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Abhay Jain Vs The High Court of Judicature and another.  <o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2029 of 2022 decided on 15 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Uday Umesh Lalit and Justice Vineet Saran.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2. The appellant, who joined as a judicial officer in 2013, having been discharged from service in the year 2016, filed a Writ Petition in the Rajasthan High Court, which was dismissed by the impugned judgment dated 21.10.2019 passed by a Division Bench of the High Court. Aggrieved by the same, this appeal has been filed by way of this Special Leave Petition.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>69. In light of the above judicial pronouncements, we hold that the appellant may have been guilty of negligence in the sense that he did not carefully go through the case file and did not take notice of the order of the High Court which was on his file. This negligence cannot be treated to be misconduct. Moreover, the enquiry officer virtually sat as a court of appeal picking holes in the order granting bail, even when he could not find any extraneous reason for the grant of the bail order. Notably, in the present case, there was not a string of continuous illegal orders that have been alleged to be passed for extraneous considerations. The present case revolves only around a single bail order, and that too was passed with competent jurisdiction. As has been rightly held by this Court in Sadhna Chaudhary (supra), mere suspicion cannot constitute “misconduct”. Any ‘probability’ of misconduct needs to be supported with oral or documentary material, and this requirement has not been fulfilled in the present case. These observations assume importance in light of the specific fact that there was no allegation of illegal gratification against the present appellant. As has been rightly held by this Court, such relief-oriented judicial approaches cannot by themselves be grounds to cast aspersions on the honesty and integrity of an officer. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>70. Additionally, the High Court in the impugned order has erroneously stated that there must have been some oral complaint which resulted in the explanation being sought by the Respondent. This, it is held, was based on conjectures and is in stark contravention to the proposition laid down in the above referred judgements, especially given the fact that the High Court had itself recorded that there was no written complaint against the appellant. Lastly, reliance placed by the High Court in the impugned order on Director Aryabhatta research Institute of Observational Sciences (supra) is misconceived as the facts of the said case are distinguishable on facts since in the said case, the enquiry was only a preliminary enquiry prior to the initiation of a formal inquiry and furthermore, there were many letters of the management regarding unsatisfactory performance, of which the delinquent officer was intimated in advance. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>71. To conclude, we are of the firm view that in the present case there was no material to showcase unsatisfactory performance of the appellant in terms of requirement under Rule 45 and 46 of the RJS Rules, 2010. Moreover, the appellant’s discharge was not simpliciter, as claimed by the respondent. The non-communication of the ACRs to the appellant has been proved to be arbitrary and since the respondent choose to hold an enquiry into appellant’s alleged misconduct, the termination of his service is by way of punishment because it puts a stigma on his competence and thus affects his future career. In such a case, the appellant would be entitled to the protection of Article 311(2) of the Constitution. Moreover, the adverse comments in the ACR for the year 2015 could not have been the basis on which the appellant was discharged from service. The appellant was never granted an opportunity to improve and there was no intimation to him about his performance being unsatisfactory. Importantly, no verifiable complaint was filed against the appellant that could form the basis of the disciplinary proceeding against him. After perusing all the relevant record, we hold that the appellant was competent to pass the bail order dated 27.04.2015 and that the Respondent has not been able to prove the presence of any extraneous consideration or ulterior motive on the part of the appellant. It should also be highlighted here that neither the bail order dated 27.04.2015 was ever challenged by the State before any Court of law, nor was any complaint received against the appellant regarding the said bail order. This is not the case where there are strong grounds to suspect the appellant’s bona fides. Even if appellant’s act is considered to be negligent, it cannot be treated as “misconduct”. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>72. Accordingly, the Appeal is Allowed and the impugned order of the High Court dated 21.10.2019 is set aside and the discharge order dated 27.01.2016 is quashed. Keeping in view that the appellant has not worked as judicial officer after he was discharged, we direct that while the appellant be reinstated with all consequential benefits including continuity of service and seniority, but will be entitled to be paid only 50% backwages, which may be paid within a period of four months from today.</b></span><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '396357a7ceac61ce5ef802816472596c.jpeg', 'fb92434ce111273db2fc6f7df1c7cccd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-16', 1, '', '', '2022-03-16 18:29:12', '2022-03-16 20:40:40'),
(1428, 'A7N2QrI5eA1skrfN2i4wL2Efb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Divorce. Proof required to establish adultery need not necessarily be proof beyond a shadow of doubt. Proof by preponderance of probabilities would be sufficient. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>S. Sanal Kumar and others Vs K.S Madhusoodanan and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mat. Appeal 722 of 2015 decided on 5 October 2021.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A. Muhamed Mustaque and Justice Kauser Edappagath.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>This is an appeal filed u/s 19 of the Family Courts Act, 1984 against the judgment and decree in OP No. 846/2012 dated 26/5/2015 on the file of the Family Court, Alappuzha </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The original petition has been filed by the husband, who is the appellant, for dissolution of marriage on the ground of adultery and cruelty and also for return of gold ornaments. The 1st respondent is his wife. The 2nd respondent is the alleged adulterer. The marriage between the appellant and the 1st respondent was solemnized on 10/9/2001 at the residence of the 1st respondent as per Hindu religious rites and ceremonies. A girl child was born in the wedlock on 11/7/2002. At the time of marriage, the appellant was employed at NEST. According to the appellant, right from the inception of the marriage, the 1st respondent used to quarrel with him and his family members unnecessarily. It is alleged that 1st respondent did not allow him to lead a peaceful life and constantly nagged him. It is further alleged that the 1st respondent wanted to lead a luxurious life which the appellant could not afford to. In May, 2008, the appellant got transfer to Bangalore. Thereafter, she started wayward life of her own and used to contact the appellant over phone only when she needed money and failed to discharge her marital obligation. In March, 2009, the appellant went to Gulf for job. Thereafter, she started illicit relationship with the 2nd respondent and when he came to know of it, he quit his job and returned home on 31/5/2010. It is alleged that the 1st respondent has been maintaining illicit relationship with the 2nd respondent. The appellant has projected a specific instance of adulterous act of the 1st respondent. It is alleged that on 11/11/2010 at 10.00 a.m., the 1st respondent was caught red handed from the house of the 2nd respondent. It was witnessed by the appellant, his father, the mother of the 1st respondent and local people. Thereafter, the 1st respondent\'s mother took her into an autorickshaw to her own house and since then, they are living separately. It was in these circumstances the divorce on the ground of adultery and cruelty was sought. The appellant also claimed back wedding chain weighing 6 sovereigns of gold ornaments given by him to the 1st respondent. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. The 1st respondent filed objection statement denying the averments in the original petition. She specifically denied various instances of cruelty allegedly exercised by her on the appellant and pleaded in the original petition. According to her, it was the appellant who often quarrelled with her and failed to discharge the marital obligation. It was contended that the appellant misappropriated 42 sovereigns of gold ornaments and `50,000/- received by her as gift at the time of her marriage. It is further contended that the appellant did not pay any amount to maintain her or the child. The case of illicit relationship between the 1st respondent and 2nd respondent alleged in the original petition as well as the incident allegedly took place on 11/11/2010 was also denied. The 1st respondent sought for dismissal of the petition. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. The appellant has also filed OP No.570/2013 for the custody of the minor child. Both the original petitions were tried together. The appellant was examined as PW1. His neighbour was examined as PW2. Exts.A1 to A4 were marked on the side of the appellant. The 1st respondent was examined as CPW1. Ext.B1 was marked on the side of the respondent. After trial, the court below found that the appellant failed to prove cruelty as well as adultery on the part of the 1st respondent. The court below also found that the appellant cannot claim back the wedding chain given by him to the 1st respondent so long as the marital relationship continues. Accordingly, the original petition was dismissed as per the impugned judgment. Challenging the dismissal of the prayer for dissolution of marriage, the appellant has preferred this appeal. The appellant has not challenged the dismissal of his claim for return of gold ornaments. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. We have heard Sri.S.Sanal Kumar, the learned counsel for the appellant and Sri.K.S.Madhusoodanan the learned counsel for the respondent. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. Assailing the finding of the court below on adultery and cruelty, the learned counsel for the appellant vehemently argued that the court below was unreasonable and unrealistic in the appreciation of evidence. The learned counsel submitted that the evidence on record were sufficient to prove adultery and cruelty alleged so as to grant a decree for dissolution of marriage u/s 13(1)(i) and (ia) of the Hindu Marriage Act, 1955. The learned counsel for the 1st respondent, per contra, submitted that the burden is entirely upon the appellant to prove the alleged cruelty and adultery which he miserably failed to prove. The court below rightly dismissed the petition, argued the counsel </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. First, we will consider the ground of cruelty canvassed by the appellant. In order to prove adultery, the appellant relied on his own oral evidence and the evidence of his neighbour who was examined as PW2. It has come out in evidence that at the time of marriage the appellant was employed at NEST, Kakkanad. Thereafter in the year 2008, he was transferred to Bangalore and then he left to Gulf in 2009 March. In the original petition, the appellant has pleaded that after he left to the Gulf, the 1st respondent started to lead luxurious life and she developed unholy and illicit relationship with the 2nd respondent. He quit the job at Gulf and came back on 31st May, 2010. According to him, he came back when he knew about the illicit relationship between the respondents. The appellant has specifically pleaded an instance where the 1st and 2nd respondents were caught red handed at the residence of the 2nd respondent. According to the appellant, on 11/11/2010 at 10.00 a.m., the respondents were found alone together at the house of the 2nd respondent and they were caught by him, his father, the mother of the 1st respondent and few neighbours. Thereafter, the mother of the 1st respondent took her in an autorickshaw to her house. PW1 also gave evidence in tune with the pleadings mentioned above. The specific instance took place on 11/11/2010 was spoken to by PW1 in the evidence. PW2 has been examined to prove the incident that has taken place on 11/11/2010. He is the neighbour of the appellant. He deposed that he knew the respondents well and they were leading an illicit relationship. He further deposed that the 1st respondent used to visit the house of the 2nd respondent and he had seen both of them spending together in the closed room therein on so many occasions. He also deposed that he saw them together moving around intimately. He specifically deposed that on 11/11/2010, at about 10.00-10.15 a.m., while he was standing outside the house of the 2nd respondent, he saw the 1st respondent going to the house of the 2nd respondent. At that time, the parents of the 2nd respondent were not there. Immediately, he intimated the matter to the appellant over phone. After 45 minutes, the appellant along with his father and mother of the 1st respondent came and the 1st and 2nd respondents got out of the house and they were caught red handed. Thereafter, the 1st respondent along with her mother left in an autorickshaw. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. The evidence of PW1 and PW2 have to be evaluated in the light of certain admissions and attended circumstances. Even though the 1st respondent has denied the alleged incident that has taken place at the house of the 2nd respondent on 11/11/2010, in her objection statement as well as in the chief affidavit, she has admitted that on 11/11/2010, the appellant quarreled with her unnecessarily and the appellant called her mother over phone who came and she went along with her mother to her house. In cross-examination, the 1st respondent has admitted that she knew the 2nd respondent. The 1st respondent has also admitted in cross-examination that she knew PW2. Though PW2 gave positive evidence that he witnessed the incident on 11/11/2010, nothing has been stated by the 1st respondent in her chief examination about PW2 or his evidence. The 1st respondent gave evidence much after the evidence of PW2. The 1st respondent has also no case that PW2 has any animosity with her. Even though PW2 has been cross-examined in length, nothing has been brought out in cross-examination to discredit his testimony. In the pleadings itself the appellant has stated that the incident on 11/11/2010 has been witnessed by the local people, though name of PW2 has not been specifically mentioned. We have perused the cross-examination of PW1. There is no effective cross-examination on the positive evidence given by PW1 regarding the illicit relationship between the respondents, specifically regarding the incident on 11/11/2010. We see no reason to disbelieve the evidence given by PW1 and PW2 about the illicit relationship between the 1st and 2nd respondents especially about the incident that has taken place on 11/11/2010. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. The court below disbelieved the evidence of PW2 highlighting certain minor discrepancies in his evidence with regard to slight difference in time. The court below also found fault with the appellant for not examining his father or mother of the 1st respondent who witnessed the incident on 11/11/2010. True, either of them could have been examined. But, for the mere reason that they were not examined, the evidence given by PW1 and PW2 cannot be discarded. Discrepancies in the evidence of PW2 pointed out by the court below are minor in nature and insignificant. We have already found that there is nothing to disbelieve the evidence given by PW2. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10. In a case where divorce is sought on the ground of adultery, the proof required to establish adultery need not necessarily be proof beyond a shadow of doubt. Proof by preponderance of probabilities would be sufficient. Direct proof of adultery can rarely be given. The circumstantial evidence is all that can normally be expected in proof of the charge of adultery. However, the circumstances must be such as lead to it by fair inference as a necessary conclusion. The allegation must be reasonably proved, there must be high degree of probability. As stated already, the oral testimony tendered by PW1 and PW2 is credible and trustworthy. We do not find any reason to reject it. The 1st respondent has also admitted that on 11/11/2010 there was some quarrel between her and the appellant and her mother came and took her to her house. She has also admitted that she knew both the 2nd respondent and PW2. PW2 has not come forward to the court and denied the allegations levelled against him. For all these reasons, we are of the view that the preponderance of probabilities are in favour of the appellant. The appellant has succeeded in proving that after the solemnization of marriage, the 1st respondent had sexual intercourse with a person other than him so as to attract S.13(1)(i) of the Hindu Marriage Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. In so far as the ground of cruelty is concerned, various acts of cruelty, both physical and mental, as well as harassment meted out by the appellant at the hands of the respondent have been spoken to in detail by him. Even though he has been crossexamined in length, nothing could be elicited to discredit his testimony. PW1 specifically deposed that right from the inception of marriage, the 1st respondent used to pick up quarrel with him. He further deposed that the 1st respondent wanted to lead a luxurious and wayward life and since he could not accede to the said demand, he was abused and humiliated. He has also highlighted a specific instance where she threw away the thali chain when she got angry. Regular instances of outrage and resentment on the part of the 1st respondent has been spoken to by the appellant. It has also come out in evidence that the 1st respondent has even physically assaulted their child. The appellant specifically deposed that right from the first day of marriage, there has been a sustained cause of abusive and humiliating treatment and reprehensible conduct on the part of the 1st respondent. As stated already, in 2009, the appellant went to Gulf seeking a better job. But he had to quit the job and come back when he knew about the illicit relationship of the 1st respondent with the 2nd respondent. The evidence shows that even after he came back from Gulf, the 1st respondent continued her illicit relationship with the 2nd respondent and they were caught red handed at the house of the 2nd respondent on 11/11/2010. This act of the 1st respondent has caused much mental strain and agony to the appellant which is nothing but mental cruelty. The physical violence is not absolutely essential to constitute cruelty. It is sufficient if the conduct and behaviour of one spouse towards the other is of such a nature that it causes reasonable apprehension in the mind of the latter that it is not safe for him/her to continue the marital tie. The evidence on record shows that the parties have been living separately since 11/11/2010. The allegations and counter allegations levelled against each other establish that there is no further chance of rapprochement. Thus, we hold that the appellant has made out a case for granting a decree for dissolution of marriage on the ground of cruelty as well. In the light of the above findings, we allow the appeal and set aside the impugned judgment to the extent it rejected the relief of dissolution of marriage on the ground of adultery and cruelty. OP No.846/2012 stands allowed u/s 13(1)(i) and (ia) of the Hindu Marriage Act, 1955. The marriage between the appellant and the 1st respondent solemnized on 10/9/2001 is hereby dissolved. The parties shall bear their costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '70a6aa16bd30704eea01e3f7c18c8b1e.jpeg', '58be1880739e0c6821d37f63b36b3eb0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-16', 1, '', '', '2022-03-16 19:09:05', '2022-03-16 22:10:01'),
(1429, 'sDOXSwGdDSvGozyMOTFJirn5o', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Owner of land adjoining a highway is entitled to as a matter of private right access to such highway at any point at which his land actually touches it. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Prof. Sebastian Joseph Vs Chirakkadavu Grama Panchayat and Others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition (C) 9665 of 2019 decided on 12 October 2021.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N. Nagesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner, a Professor by profession, is before\r\nthis Court seeking to direct respondents 1 and 2 to consider\r\nExt.P2 representation and to remove the illegal bunk of the 3rd\r\nrespondent situated in front of the petitioner’s house.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioner states that he is residing at home in\r\n20th Mile, Ponkunnam in Kottayam District along with his aged\r\nmother, wife and children. His house plot is adjacent to NH220. The 3rd respondent erected an illegal Box Shop in front\r\nof the petitioner’s house in 2018. It soon became a nuisance\r\nto the family of the petitioner. The petitioner repeatedly\r\nrequested the 3rd respondent and the 3rd respondent moved\r\nhis Box Shop towards the next boundary. But, a Bunk which\r\nhe uses to store his materials, still remains in front of the\r\npetitioner’s property. The Bunk is an obstruction to the pedestrians walking through the pathway. The petitioner\r\nsubmitted Ext.P2 complaint to the Grama Panchayat.\r\nHowever, the Panchayat has not taken any action.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Respondents 1 and 2 filed a statement in the writ\r\npetition. Respondents 1 and 2 stated that the petitioner\r\nsubmitted a complaint requiring the Grama Panchayat and its\r\nSecretary to remove the Bunk installed by the 3rd respondent\r\nin front of the house of the petitioner. When the writ petition\r\ncame up earlier before this Court, the Court directed that the\r\nSecretary of the Grama Panchayat should personally visit the\r\nplace where the Bunk Shop is installed by the 3rd respondent.\r\nAccordingly, the Secretary of the Grama Panchayat inspected\r\nthe site and found that the 3rd respondent has installed a Bunk\r\nShop on wheels and doing business. The said Bunk is\r\ninstalled on the side of the new NH-183. The Bunk Shop\r\nclearly causes obstruction to the ingress and egress to the\r\npetitioner\'s residential house on the side of new NH-183. The\r\nSecretary also verified the records maintained by the Grama\r\nPanchayat and the verification revealed that the Grama Panchayat has not issued a licence to the 3rd respondent to\r\ninstall the Bunk in question.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The 3rd respondent filed a counter affidavit and\r\ncontroverted the pleadings of the petitioner. The 3rd\r\nrespondent stated that he is doing business in front of the\r\nproperty of one Smt. Lailakutty. He is not using any Bunk to\r\nstore any material. The 3rd respondent holds FSSAI\r\nregistration. The Box Shop shown in Ext.P1 belongs to\r\nsomeone else. The writ petition discloses animosity and\r\nvengeance against a poor man who is a senior citizen doing a\r\nseasonal business in a small village, putting tapioca under an\r\numbrella in front of Smt. Lailakutty’s property without causing\r\nany harm to the petitioner or other pedestrians.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The 3rd respondent has no connection with the\r\nBunk shown in Ext.P1 photograph, reiterated the 3rd\r\nrespondent. Respondents 1 and 2 are not the proper parties\r\nto take any action as it is a property vested with the Executive\r\nEngineer (Roads), National Highway of Public Works\r\nDepartment. The Panchayat has no jurisdiction, contended the 3rd respondent.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Heard the learned counsel for the petitioner, the\r\nlearned Standing Counsel for respondents 1 and 2 and the\r\nlearned counsel for the 3rd respondent.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The petitioner contends that there is a Bunk\r\nsituated on the front side of his residential plot which is\r\ncausing nuisance to the petitioner, his family and also to\r\npedestrians. According to the petitioner, the Bunk belongs to\r\nthe 3rd respondent. Though the 3rd respondent has shifted his\r\nBox Shop to a place nearby, the Bunk in front of the\r\npetitioner’s house is remaining there and the 3rd respondent is\r\nusing the same for storing materials. The 3rd respondent\r\nwould state that his Bunk is in front of the property of one\r\nSmt. Lailakutty and not in front of the petitioner’s house.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The Secretary to the Panchayat personally\r\ninspected the site and found that the 3rd respondent has\r\ninstalled a Bunk in front of the petitioner’s house and the Bunk\r\nclearly causes obstruction to the ingress and egress to the\r\npetitioner\'s residential house. The Panchayat has not issued any licence to the said Bunk.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The right of a person owning land adjoining a\r\nHighway to have access to the highway at any point has been\r\nrecognised by Courts in India in various decisions reported in\r\nSheonarayan v. Dindayal  Muhammad\r\nDin Mian and others v. Atirajo Kuer and others , Bati Ram Kolita and others v. Sibram Das and\r\nothers Mandakinee Debee v.\r\nBasantakumaree Dabee  Damodara\r\nNaidu and others v. Thirupurasundari Ammal and others . This Court in its decision in Tanoor\r\nPanchayat v. Kunhiamutty also held that an\r\nowner of land adjoining a highway is entitled to as a matter of\r\nprivate right access to such highway at any point at which his\r\nland actually touches it. Therefore, person owning a property\r\nabutting a highway or a pathway over which the public has a\r\nright of passage, has a right to have access at each point\r\nwhere the highway touches his property. The said right\r\ncannot be violated otherwise than in public interest. The right cannot be infringed by erecting or parking an unlicensed\r\nBunk.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. In the present case, the Bunk in issue is placed on\r\nthe side walk of a public road. That would indeed affect the\r\nright of pedestrians using the road. Pedestrians are the most\r\nvulnerable group on roads. The pedestrians have a right to\r\nfreely walk through foot paths and where there is no paved or\r\nlaid footpaths, along the side walks of surfaced roads. The\r\nsaid right is the fact of Article 19(1)(d) of the Constitution of\r\nIndia. The right to walk/passage of the pedestrians can be\r\ncurtailed or regulated only in public interest.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. There is a tendency in Kerala to erect unauthorised\r\nBunks on footpaths and on sides of busy public roads, without\r\nobtaining any licence or permit from Local Self Government\r\nInstitutions or from any other public authority. Many a time,\r\nsuch Bunks are erected on wheels to escape from the\r\nclutches of civic laws and by passage of time such mobile\r\nbunks get embedded in ground. Where the footpaths or side\r\nwalks do not have sufficient width, such illegal Bunks force the pedestrians to walk through the surfaced roads meant for\r\nvehicular traffic, inviting motor accidents, consequential\r\ninjuries and even loss of life. It is high time the Government\r\nand Local Self Government Institutions take steps to curb\r\nmushrooming of such illegal, unauthorised and unlicensed\r\nBunks.\r\nIn the facts and circumstances of the case, the\r\npetitioner is entitled to relief. The writ petition is allowed and\r\nthe competent among respondents 1 and 2 and the additional\r\n4th respondent are directed to remove the unlicensed\r\nBunk/Box Shop situated in front of the petitioner’s property\r\nwithin a period of one month. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4f467d09b923353101b10d7f388a4ff2.jpeg', '3306c40c4d0a60184a0a384d61a99b64.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-16', 1, '', '', '2022-03-16 19:47:54', '2022-03-18 07:37:18');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1430, '3ayxXB5FDoJtXdQo96e0Lc9Ua', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Enquiry Officer can be examined to prove contradictory statements of the prosecution witnesses. - Embargo under Section 172(3) Cr.P.C. cannot come into play to defeat valuable right of the defence. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Selvaraj Alexander Vs The State of Kerala.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Crl.Mc 3532 of 2021 decided on 16 September 2021.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.Haripal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>These are petitions filed under Section 482 of the Code of Criminal\r\nProcedure seeking to quash Annexure A2 and A4 orders of the Additional\r\nSessions Judge, Neyyattinkara in CMP.87/2021 and CMP.86/2021 in\r\nSC.368/2014 respectively.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. Petitioner in both these Crl.M.Cs is one and the same. He is the\r\nfirst accused in SC. 368/2014 of Additional Sessions Court, Neyyattinkara,\r\nwhich is the culmination of investigation in crime No.490/2012 of\r\nKanjiramkulam police station, Thiruvananthapuram. That is a case registered\r\nalleging offence under Sections 143, 147, 341, 324, 307, 302 r/w 149 of IPC.\r\nThe alleged incident had happened at 9:45 p.m. on 27.10.2012. There are ten\r\naccused in the crime. It is alleged that they formed an unlawful assembly and,\r\nin prosecution of their common object, committed murder of one Christudas\r\nand one Antony and caused injuries to three others; all the accused are\r\nmembers of the same family. After investigation, charge sheet was laid and\r\nthe accused are facing trial. According to the petitioner, the prosecution\r\nevidence was partly completed in February 2020 and thereafter, even during\r\npandemic, the defence had participated in completing the trial; prosecution evidence was completed on 22.12.2020. Then the learned Additional Sessions\r\nJudge adjourned the case 15 times for recording statements of the accused\r\nunder Section 313 of the Cr.P.C. Ultimately, on 23.07.2021 statements of the\r\naccused were recorded under Section 313 of the Cr.P.C. and the case was\r\nposted to 26.07.2021 for enquiry under Section 232 of the Cr.P.C. Then the\r\npetitioner filed the said CMP Nos.86/2021 and 87/2021. CMP. 86/2021 was\r\nfiled under Sections 233(3) and 91 of the Cr.P.C. for issuing summons to\r\nDy.S.P. of Crime Branch CID, HHW-1, Jawahar Nagar, Kawdiar for the\r\npurpose of causing to produce a report in file No.169/CB/HHW-1/SU/15 and\r\nstatement of all witnesses recorded in file No.D1/5484/CR/2015 dated\r\n26.03.2015. Similarly, CMP.87/2021 was filed for issuing summons to\r\nwitnesses mentioned in the witness list for producing documents and\r\nadducing oral evidence. There are three witnesses in the list; they are Sri. S.\r\nRafeek, Deputy Superintendent of Police, Crime Branch CID, HHW-1,\r\nThiruvananthapuram and the purpose is to prove further investigation report\r\nsubmitted by him and the report dated 18.05.2015. Others are two medical\r\nofficers. There is no dispute with regard to the summoning of defence witness\r\nNos.2 and 3.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. By Annexure- A2 order dated 30.07.2021, the learned Additional\r\nSessions Judge allowed CMP.86/2021 in part. He permitted to summon witness Nos.2 and 3, that is the medical officers. However, petition to\r\nsummon the said Rafeek, the Dy.S.P. was disallowed on the premise that no\r\nfurther investigation was conducted by him and that no such report is\r\navailable before court; statements of such witnesses as part of further\r\ninvestigation also were not available. CMP. 87/2021 was also dismissed in\r\nview of the dismissal of CMP. 86/2021 as regards the summoning of the\r\nDy.S.P. Challenging these orders the petitioner has approached this Court\r\nunder Section 482 of the Cr.P.C.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. I heard Sri.Renjith B. Marar, the learned counsel for the petitioner\r\nand Sri.Hrithwik C.S. as well as Sri. Renjith T.R., the learned Senior Public\r\nProsecutors appearing for the respondent State.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. According to the learned counsel for the petitioner, the embargo\r\nunder Section 172(3) of the Cr.P.C. is not applicable in the facts of the case.\r\nHe has not called for the Case Diary. He had filed application under Sections\r\n233(3) and 91 of the Cr.P.C. for summoning the Dy.S.P. who conducted further\r\ninvestigation and also for producing statements recorded by him for the purpose\r\nof contradicting and impeaching some of the prosecution witnesses. According\r\nto him, the report given by the said Rafeek, Dy.S.P. and previous statements of\r\nsome of the prosecution witnesses have already been obtained by him under the\r\nRight to Information Act and that the said Dy.S.P. is now working elsewhere so  that the custodian of the records, who is the successor Dy.S.P., has to be\r\nsummoned under Section 91 Cr.P.C. for the purpose of producing documents.\r\nHe wants to examine the said Rafeek for the purpose of contradicting the\r\nwitnesses. According to the learned counsel, when prosecution witnesses were\r\nexamined, he had already put questions bearing in mind the statements given by\r\nthem to Sri. Rafeek and now during examination under Section 233 Cr.P.C. he\r\nwants to impeach the credit of such witnesses who were examined for the\r\nprosecution. Even though the prosecution does not rely on those documents, the\r\nindefeasible right of the accused persons to impeach the testimony of witnesses\r\ncannot be denied. According to him, statements have already been obtained from\r\nsuch witnesses and that exercise will be completed only if these documents are\r\nproduced and proved through the officer who had recorded the same.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n6. The learned counsel also relied on the decisions reported in State of\r\nKerala v. Raghavan and others [1974 Crl.LJ 1373], Shamshul Kanwar v.\r\nState of U.P. [AIR 1995 SC 1748], State of Kerala v. Babu and others [AIR\r\n1999 SC 2161] and also Mahaveer Chandrakar v. State of Chattisgarh\r\n[MANU/CG/0668/2017].\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. On the other hand, according to the learned Senior Public\r\nProsecutors, no such further investigation was conducted by the said Rafeek,\r\nDy.S.P., Crime Branch so that the learned Additional Sessions Judge is right in  rejecting the application. Both of them have stated in clear terms that no further\r\ninvestigation was conducted. There is only one investigation conducted by the\r\nlocal police and all the witnesses were examined on the side of the prosecution.\r\nAccording to them, the embargo under Section 172(3) of the Cr.P.C. is absolute,\r\nthat such a document is not available for the defence.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. As stated earlier, petitioner is the first accused in a double murder\r\ncase. There are ten accused in the charge and all of them are facing trial. After\r\nclosing the prosecution evidence, the accused were questioned under Section\r\n313(1)(b) Cr.P.C. and thereafter enquiry under Section 232 Cr.P.C. was\r\nconducted and the accused were called upon to enter on their evidence in\r\ndefence. At that time, the said petitions, CMP.Nos.86/2021 and 87/2021 were\r\nfiled by the petitioner. By Annexure-A4 order, CMP.86/2021 was dismissed by\r\nthe learned Additional Sessions Judge and Annexure-A2 shows that\r\nCMP.87/2021 was partially allowed. The petitioner is aggrieved by the stands\r\ntaken by the learned Additional Sessions Judge in declining his attempts to\r\nadduce evidence by examining Sri.Rafeek and proving the statements of\r\nwitnesses recorded by him.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Even though the petitioner had proceeded as though there was a\r\nfurther investigation conducted by Dy.S.P. Rafeek and had laid a report, such a\r\nreport is not available. It seems that the learned Judge also was informed that a  further investigation was done. But the learned Senior Public Prosecutors have\r\nsubmitted that such a further investigation was not conducted, there was only\r\none investigation which was conducted by the local police. After or during the\r\ncourse of investigation by the local police, some of the suspects had moved the\r\nHome Minister requesting to transfer the investigation to the Crime Branch. On\r\nthat representation, Dy.S.P. Rafeek, who was in the Crime Branch, was directed\r\nto make an enquiry and he conducted formal enquiry, examined some of the\r\nwitnesses including the Investigating Officer who was the Circle Inspector of the\r\nlocal police station and made a report. In other words, it was only a \'petition\r\nenquiry\' as the learned Public Prosecutor put in. Copy of that report and\r\nstatements recorded during the enquiry have already been obtained by the\r\npetitioner under the Right to Information Act. Using these previous statements,\r\nwhen prosecution witnesses were examined, questions were put to them by the\r\ndefence counsel. According to the learned counsel, in order to contradict their\r\nstand and to impeach the testimony of some of the witnesses, examination of the\r\nDy.S.P. is inevitable. Similarly, previous statements given by some of the\r\nwitnesses before the Dy.S.P. also have to be produced for the purpose of proving\r\nthe contradictions. The definite case of the prosecution is that one of the\r\ndeceased, that is Christudas, was stabbed by the 1st accused when the 2nd accused\r\nhad caught hold of him. According to the defence, during \'further investigation\' some of the witnesses had given a different version that one Brijin had\r\nstated that Christudas was stabbed by accused No.3 Arogyadas. There are\r\nsimilar other contradictions also. The purpose of summoning and examining the\r\nDy.S.P. and also to prove statements recorded by him is to bring out the\r\ncontradictions crept in the testimony of material witnesses, which, according to\r\nthe learned counsel, are very material.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. After having gone through rival contentions and materials made\r\navailable before Court, I do not find any reason to reject the contentions raised\r\nby the petitioner. No doubt, the embargo under Section 172(3) of the Cr.P.C.\r\ncannot come into play for the simple reason that no such further investigation\r\nwas conducted by Dy.S.P. Rafeek. Even if there was further investigation, as\r\nrightly pointed out by the learned Senior Public Prosecutors, the defence is not\r\nentitled to summon or use the same. It was only a formal enquiry conducted by\r\nthe Dy.S.P. on the feasibility of referring the case to the Crime Branch for further\r\ninvestigation. The matter ended there. The Dy.S.P., Crime Branch had given a\r\nreport to the Superintendent of Police, Crime Branch along with statements of\r\nsome of the witnesses questioned by him including that of the Investigating\r\nOfficer. No action was taken on the report. However, the defence could get a\r\nclimbing stem. According to them, statements given by some of the prosecution\r\nwitnesses to the Enquiry Officer were on different lines; bearing in mind such previous statements, witnesses were cross-examined by the defence and,\r\naccording to them, there are prevaricative statements given by them and in order\r\nto expose the contradictions they wanted to examine the Enquiry Officer, the\r\nDy.S.P., and also to prove the previous statements. Such a valuable right of the\r\ndefence cannot be denied to the defence</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. In fact, previous statements given by the prosecution witnesses in\r\nrespect of the very same transaction are very relevant and important for the\r\npurpose of understanding the real facts. In this connection, referring to Section\r\n145 of the Evidence Act the Hon\'ble Supreme Court in State of Kerala v. Babu\r\nand others, quoted supra, held thus:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>“A perusal of this Section shows that this Section permits the\r\ncross-examination of the witness in any trial, with reference to his\r\nprevious statement, to establish a contradiction and the manner in\r\nwhich such contradictions can be established. Section 155 of the\r\nEvidence Act provides that the previous statement of a witness can\r\nbe made use of during the cross-examination of that witness for the\r\npurpose of impeaching the credit of the witness. Thus, it is seen it is\r\nthe right of a party in a trial to use the previous statements of a\r\nwitness either for the purpose of establishing a contradiction in his\r\nevidence or for the purpose of impeaching the credit of the witness.\r\nThis right given to a party in a trial under Section 145 of the\r\nEvidence Act is somewhat controlled in criminal trials by the\r\nprovisions made in the Code.\"</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. In other words, having regard to the fact that Section 162 of the\r\nCr.P.C. highlights the object of Section 145 of the Evidence Act, it is the right of  every accused in a criminal trial to make use of the previous statements of a\r\nwitness including the statements recorded by the investigating agency during the\r\ncourse of investigation for the purpose of establishing contradiction in evidence\r\nor to discredit the witness. Referring to the illustrious decision in Tahsildar\r\nSingh and others v. State of U.P. [AIR 1959 SC 1012] the Hon\'ble Supreme\r\nCourt held that the very object of enactment of Section 161 of the Cr.P.C. and\r\nSection 145 of the Evidence Act is to create a right in the accused to make use of\r\nthe previous statements of the witnesses for the purpose of contradiction and\r\nalso for impeaching the merit of the witnesses. This right has not been taken\r\naway by Section 172 of the Cr.P.C. In other words, such a right is an indefeasible\r\none available to the defence.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. To sum up, from the perusal of the records it is very patent that no\r\nfurther investigation was conducted. However, Dy.S.P. Sri.Rafeek had\r\nconducted an enquiry on the feasibility of conducting further investigation by\r\nthe Crime Branch and during the course of such enquiry some of the witnesses\r\nwere examined and their statements were reduced into writing. During the\r\ncourse of trial, the defence wanted to make use of the prevaricative statements\r\ngiven by the witnesses who were examined both by the Investigating Officer and\r\nthe Enquiry Officer. In order to bring out the contradictions and to complete the\r\nprocess, that report of enquiry and also statements of witnesses are sought to be produced.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. I do not have any doubt in mind that both the petitions were filed by\r\nthe petitioner with right direction and his legitimate right cannot be denied. In\r\nthis connection, the fact that the Court had dismissed a similar petition filed by\r\naccused Nos.2 and 10 in 2018 has little relevance.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. After all, paramount consideration of every trial is to find out the\r\ntruth. A trial which is primarily aimed at ascertaining the truth has to be fair to\r\nall concerned. A fair trial is the hall mark of a civilised society. While ensuring\r\nfair trial, interests of the accused also have to be protected. There are in built\r\nmechanisms in our statutes for protecting the interests of all. The attempt of the\r\npetitioner is to preserve his interest which is statutorily protected. The learned\r\nAdditional Sessions Judge went wrong in dismissing the petitions. In order to\r\nsecure the ends of justice, inherent jurisdiction of this Court under Section 482\r\nof the Cr.P.C. is liable to be exercised.\r\nIn the result, both the criminal miscellaneous cases are allowed and the\r\nlearned Additional Sessions Judge is directed to issue summons to DW1 as well\r\nand also issue summons for the production of documents under Section 91 of the\r\nCr.P.C.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '27efdd3959c4568608fa9d16d8e377a0.jpeg', '4f987a8160df337ecba2d138a3a9050d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-16', 1, '', '', '2022-03-16 20:58:27', '2022-03-17 10:04:56'),
(1431, 'IcbTMzhXqaYo5zI2YHTaZYBPP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Magistrate taking cognizance of an offence on a police report under Section 190 summon any person not arraigned as an accused in the report on the basis of statement under Section 164. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nahar Singh Vs The State of Uttar Pradesh and another.  <o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 433 of 2022 decided on 16 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Vineet Saran and Justice Aniruddha Bose.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The question which we shall be addressing in this appeal\r\nis whether a Magistrate taking cognizance of an offence on the\r\nbasis of a police report in terms of Section 190 (1)(b) of The Code\r\nof Criminal Procedure, 1973 (the Code) can issue summons to\r\nany person not arraigned as an accused in the police report and whose name also does not feature in column (2) of such report. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. In the judgment under appeal delivered on 14th May, 2015,\r\nthe High Court reiterated the well established principle of\r\ncriminal jurisprudence that cognizance taken by the Magistrate\r\nis of an offence and not of an offender. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. As regards the point of law with which we are dealing with\r\nin this appeal, in the impugned judgment, the High Court had\r\nrelied on decision of a Coordinate Bench of this Court in the case\r\nof SWIL Ltd. vs. State of Delhi and Another [(2001) 6 SCC 670].\r\nIn this decision, argument was advanced that under Section 190\r\nof the Code, once process is issued against some accused, the\r\nMagistrate cannot issue process to any other accused against\r\nwhom there might be materials on record. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. There was divergence of views of different Benches of this\r\nCourt on this point and ultimately the issue has been settled by\r\na Constitution Bench in the case of Dharam Pal and Others vs.\r\nState of Haryana and Another [(2014) 3 SCC 306].</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. As regards scope of jurisdiction of the Magistrate in a\r\nsituation of this nature, it was held by the Constitution Bench in\r\nthe case of Dharam Pal (supra):-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“35. In our view, the Magistrate has a role to play while\r\ncommitting the case to the Court of Session upon taking\r\ncognizance on the police report submitted before him\r\nunder Section 173(2) CrPC. In the event the Magistrate\r\ndisagrees with the police report, he has two choices. He\r\nmay act on the basis of a protest petition that may be filed,\r\nor he may, while disagreeing with the police report, issue\r\nprocess and summon the accused. Thereafter, if on being\r\nsatisfied that a case had been made out to proceed against\r\nthe persons named in column 2 of the report, proceed to\r\ntry the said persons or if he was satisfied that a case had\r\nbeen made out which was triable by the Court of Session,\r\nhe may commit the case to the Court of Session to proceed\r\nfurther in the matter.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>36. This brings us to the third question as to the\r\nprocedure to be followed by the Magistrate if he was\r\nsatisfied that a prima facie case had been made out to go\r\nto trial despite the final report submitted by the police. In\r\nsuch an event, if the Magistrate decided to proceed against\r\nthe persons accused, he would have to proceed on the\r\nbasis of the police report itself and either inquire into the\r\nmatter or commit it to the Court of Session if the same was\r\nfound to be triable by the Sessions Court.”</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. It would appear from the Code that the jurisdiction to take\r\ncognizance has been vested in the Magistrate (under Section 190\r\nthereof) as also Court of Session under Section 193, which we\r\nhave quoted above. This question has been examined in the case\r\nof Dharam Pal</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. In the present case, the name of the accused had\r\ntranspired from the statement made by the victim under Section\r\n164 of the Code. In the case of Dharam Pal (supra), it has been\r\nlaid down in clear terms that in the event the Magistrate  disagrees with the police report, he may act on the basis of a\r\nprotest petition that may be filed and commit the case to the\r\nCourt of Session. This power of the Magistrate is not exercisable\r\nonly in respect of persons whose names appear in column (2) of\r\nthe chargesheet, apart from those who are arraigned as accused\r\nin the police report. In the subject-proceeding, the Magistrate\r\nacted on the basis of an independent application filed by the de\r\nfacto complainant. If there are materials before the Magistrate\r\nshowing complicity of persons other than those arraigned as\r\naccused or named in column 2 of the police report in commission\r\nof an offence, the Magistrate at that stage could summon such\r\npersons as well upon taking cognizance of the offence. As we have\r\nalready discussed, this was the view of this Court in the case of\r\nRaghubans Dubey (supra). Though this judgment dealt with the\r\nprovisions of the 1898 Code, this authority was followed in the\r\ncase of Kishun Singh (supra). For summoning persons upon\r\ntaking cognizance of an offence, the Magistrate has to examine\r\nthe materials available before him for coming to the conclusion\r\nthat apart from those sent up by the police some other persons\r\nare involved in the offence. These materials need not remain confined to the police report, charge sheet or the F.I.R. A\r\nstatement made under Section 164 of the Code could also be\r\nconsidered for such purpose. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. The appeal is dismissed and the interim order passed in\r\nthis matter shall stand dissolved.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. Pending application(s), if any, shall stand disposed of.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '209d3b8c23fa8fdf9a9317f1f9ce6682.jpeg', '1ee13d2a430cbd863b8e5b8f37c95809.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-16', 1, '', '', '2022-03-16 22:41:17', '2022-03-16 22:57:41'),
(1432, 'MyPEgYgEMu1YWlHmOz4P4CM0k', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Sessions Judge has no power to transfer a case pending before Magistrate Court to Sessions Court under Section 408(1). Magistrate can invoke powers under Section 323 for committing the case to the Sessions Court. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-family: Calibri, sans-serif; font-size: 12pt;\">Suo Motu Vs Bindu and others.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL. RC 7 of 2021 decided on 30 September 2021.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Haripal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This is a Suo Motu revision registered under Section 397(1)\r\nof the Code of Criminal Procedure, herein after referred to as the code,\r\non the basis of a communication received from the Principal Sessions\r\nJudge, Ernakulam. The fact of the case are as follows: A case as\r\nS.C.No.326/2014 is pending before the Assistant Sessions Court,\r\nPerumbavoor. While so one Bindu, who is CW1 in C.C.No.436/2015\r\npending before the Judicial First Class Magistrate-I, Perumbavoor moved\r\nCrl.M.P (Transfer) No.2274/2017 before the Sessions Court, seeking\r\njurisdiction under Section 408(1) of the Code, praying to transfer the\r\ncase to the Assistant Sessions Court, enabling simultaneous trial with the\r\ncounter case, that is S.C.No.326/2016. The learned Additional Sessions\r\nJudge-VII, Ernakulam who considered the application, by order dated\r\n24.11.2017, allowed the same and directed the Judicial First Class\r\nMagistrate-I, Perumbavoor to transfer C.C.No. 436/2015 to the Assistant\r\nSessions Court, Perumbavoor. On receipt of the records, learned\r\nAssistant Sessions Judge, Perumbavoor addressed the Sessions Judge by\r\ncommunication dated 29.01.2021 acknowledging the receipt of the\r\nrecords in C.C.No.436/2015, but informing that a Sessions Case number\r\n Crl.RC.No.7 of 2021&nbsp; was not assigned to C.C.No.436/2015. Then the Sessions Judge smelt\r\nthe impropriety of the order and thus referring to the decision in State of\r\nKerala v. Annamma [2003 KHC 490] addressed this Court stating that\r\nsuch a transfer is illegal and therefore, requested this Court to place the\r\nmatter on the judicial side treating as a reference under Section 397 of\r\nthe Cr.P.C. Thus the matter was taken up on the administrative side and\r\non the basis of an order, this Suo Motu revision was registered.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. I have no doubt that the order dated 24.11.2017 of the\r\nAdditional Sessions Judge, Ernakulalm is improper and illegal. The\r\nSessions Judge had no power to transfer a case pending before the\r\nMagistrate Court to the Sessions Court under Section 408(1) of the\r\nCr.P.C. Offence alleged in the Calendar Case are under Sections 143,\r\n147, 148, 451, 294(b), 323 read with Section 149 of the IPC. Section\r\n193 of the Code is very clear. A Court of Session has no power to take\r\ncognizance of an offence except as provided in the Code. In the nature\r\nof the allegations in the case in question, unless committed to it by a\r\nMagistrate under the Code, the Sessions Court does not get jurisdiction.\r\nThe following dictum in Annamma, quoted supra, on identical facts\r\nwould make matters clear:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“ 8. The power of the High Court to pass an order\r\nunder Section 407(1)(iii) of the Criminal Procedure Code is not\r\nlimited in its scope only to cases triable by the Court of Session.\r\nThe High Court alone can exercise the power under the above\r\nprovision of the Criminal Procedure Code and the Court of Session\r\nhas no such power to direct the commitment of a case pending in a\r\nsubordinate Magistrate Court to the Sessions Court. The High\r\nCourt can exercise that power in respect of any type of criminal\r\ncase.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>9. In the present case the Sessions Judge transferred C.C.\r\n1390/1996 on the file of the Judicial Magistrate of the First Class,\r\nPerumbavoor to the Court of the Principal Assistant Sessions\r\nJudge, North Paravur for trial. The reason given in the order of\r\ntransfer is that the case which was transferred was one which had\r\nto be tried by the Assistant Sessions Judge, North Paravur as a\r\ncross-case of Sessions Case 216/1998. The Assistant Sessions\r\nCourt, North Paravur does not get the power to try the case on\r\nbeing transferred to that Court by the Sessions Judge from the\r\nCourt of the Magistrate. There will have to be an order committing\r\nthe case to the Court of Session from where it has to be made over\r\nto the Court of Principal Assistant Sessions Judge, North Paravur\r\nwhere the Sessions case is pending. The order of the Sessions\r\nJudge, Ernakulam in Crl.M.P. 459/1999 is set aside. The records of\r\nC.C. 1390/1996 will be sent back to the Judicial Magistrate of the\r\nFirst Class, Perumbavoor. The Magistrate will proceed with the\r\ncase in accordance with law and commit the case to the Court of\r\nSession, Ernakulam.”</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. That means, the said order is illegal and the learned Sessions\r\nJudge is incompetent to transfer a case pending before the Magistrate\'s&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court to the Sessions Court. By the impugned transfer order, the learned\r\nAssistant Sessions Court does not get jurisdiction to try the case. Instead\r\nthe learned Sessions Judge should have directed the learned Magistrate to\r\ninvoke powers under Section 323 of the Code for committing the case to\r\nthe Sessions Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. No doubt, a case and counter case have to be tried by the\r\nvery same forum. [Nathi Lal and others v. State of UP and others,\r\n1990(Supp) SCC 145] S.C.No. 326/2016 is pending before the Assistant\r\nSessions Court, Perumbavoor. If the Magistrate is convinced that\r\nC.C.No.436/2015 is a counter case of S.C.No.326/2016, then the learned\r\nMagistrate can commit the case under Section 323 of the Code, to the\r\nSessions Court, following the procedural formalities. The jurisdiction\r\ninvoked by the learned Additional Sessions Judge is improper and\r\ntherefore, the order dated 24.11.2017 is hereby set aside. The learned\r\nAssistant Sessions Judge, Perumbavoor is directed to send back the\r\nrecords to the Court of Judicial First Class Magistrate, Perumbavoor.\r\nThe Revision is allowed as above.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e623521b638aa8398dd093213fd1bffe.jpeg', 'f763988fe5636b7317c423f4b1931fa8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-16', 1, '', '', '2022-03-16 22:52:37', '2022-03-17 06:50:15');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1433, '2YPG7FXSTfCKqW9N71rHLO5g0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. The fact that the body of cheque was not filled up by accused himself-is no defence in itself when signature on the cheque is not disputed. Punjab High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sukhjinder Singh Vs Buta Singh.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRM-M- 30633 of 2019 decided on 19 July 2019.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Rajbir Sehrawat.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Having heard learned counsel for the petitioner and having\r\nperused the file, this Court does not find substance in the argument of the\r\nlearned counsel for the petitioner. In the present case, the petitioner has not\r\neven disputed his signatures on the cheque. Therefore, the only attempt\r\nwhich is being made by the petitioner is that he wants to prove the nonexistence of the consent of the petitioner qua drawing of the cheque by\r\nasserting the fact that body of the cheque was not filled up by the petitioner/\r\naccused. However, it is not even disputed by the petitioner that the cheque\r\nwhich is on the Court file is complete in all respects, containing all the\r\nnecessary particulars meant for a cheque. Therefore, in considered opinion\r\nof this Court, even if the Court would have acceded to the request of\r\nthe petitioner and sent the cheque for comparison of the handwriting of the\r\npetitioner; and in an extreme case, even if the report would have come to the effect that the body of the cheque is not filled up by the petitioner; still it\r\nwould not have proved the fact that the cheque was not issued or drawn by\r\nthe petitioner or with his consent. It is nowhere provided under any law that\r\na cheque would be a valid instrument only if all parts of the same are filled\r\nup by the drawer or the holder of the account himself or in his own\r\nhandwriting. The petitioner could have, very well, got it filled up from\r\nanybody at his choice. Therefore, the fact that the body of the cheque might\r\nhave been in a handwriting different than the signatures of the petitioner is\r\ntotally irrelevant; for the purpose of offence under Section 138 of NI Act.\r\nFor proving offence under Section 138 of NI Act against an accused, the\r\ncomplainant is not required by law to prove that body of cheque was filled\r\nup by the accused himself or even with his consent. Therefore, any report\r\nqua writing in the body of the cheque would not have rebutted any\r\n`presumption\', as claimed by the accused/ petitioner.\r\nEven otherwise, the provisions of Negotiable Instruments Act\r\ndo not contemplate the fact that body of the cheque should be filled up by\r\nthe drawer of the cheque himself. Rather, the provisions speak only qua the\r\nsignatures of the drawer being present on the cheque/bill of exchange. It is\r\nappropriate to have reference to provisions of the Act in this regard.\r\nSections 5 and 6 of the Negotiable Instruments Act, 1881 read as under:-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>“5. “Bill of exchange”.- A “bill of exchange” is an instrument\r\nin writing containing an unconditional order, signed by the\r\nmaker, directing a certain person to pay a certain sum of money\r\nonly to, or to the order of, a certain person or to the bearer of\r\nthe instrument.\r\nA promise or order to pay is not “conditional”, within the meaning of this section and section 4, by reason of the time for\r\npayment of the amount or any instalment thereof being\r\nexpressed to be on the lapse of a certain period after the\r\noccurrence of a specified event which, according to the\r\nordinary expectation of mankind, is certain to happen, although\r\nthe time of its happening may be uncertain.\r\nThe sum payable may be “certain”, within the meaning\r\nof this section and section 4, although it includes future interest\r\nor is payable at an indicated rate of exchange, or is according to\r\nthe course of exchange, and although the instrument provides\r\nthat, on default of payment of an instalment, the balance unpaid\r\nshall become due.\r\nThe person to whom it is clear that the direction is given\r\nor that payment is to be made may be a “certain person”, within\r\nthe meaning of this section and section 4, although he is misnamed or designated by description only.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. “Cheque”.- A “cheque” is a bill of exchange drawn on a\r\nspecified banker and not expressed to be payable otherwise\r\nthan on demand and it includes the electronic image of a\r\ntruncated cheque and a cheque in the electronic form.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Explanation 1.- For the purpose of this section, the\r\nexpressions--</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(a) “a cheque in the electronic form” means a cheque drawn\r\nin electronic form by using any computer resource and\r\nsigned in a secure system with digital signature (with or\r\nwithout biometrics signature) and asymmetric crypto system or with electronic signature, as the case may be;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(b) “a truncated cheque” means a cheque which is truncated\r\nduring the course of a clearing cycle, either by the\r\nclearing house or by the bank whether paying or\r\nreceiving payment, immediately on generation of an\r\nelectronic image for transmission, substituting the further\r\nphysical movement of the cheque in writing.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Explanation II.--For the purpose of this section, the\r\nexpression “clearing house” means the clearing house managed\r\nby the Reserve Bank of India or a clearing house recognised as\r\nsuch by the Reserve Bank of India.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Explanation III.--For the purposes of this section, the\r\nexpressions “asymmetric crypto system”, “computer resource”,\r\n“digital signature”, “electronic form” and “electronic signature”\r\nshall have the same meanings respectively assigned to them in\r\nthe Information Technology Act, 2000 (21 of 2000).]\r\nA bare perusal of the above provisions show that every cheque\r\nis a bill of exchange of a particular kind. Section 6 of the Act also\r\nprescribes that the `cheque\' can be in electronic form as well. However,\r\nwhile extending the scope of the definition of the cheque to the digital\r\nformat, the Act has again emphasised upon the `signature\' of the drawer,\r\nthough in the digital form. Therefore, if the argument that the body of the\r\ncheque should have been filled up by or in the handwriting of the drawer\r\nonly; to make it a validly drawn cheque; is taken to the logical end, then it\r\ngoes against the provisions of the Negotiable Instruments Act itself. In that\r\nsituation, there cannot be any `cheque\' in the electronic form; because it would not contain any handwriting of the drawer, nor the\r\nsignature in physical form. Same is the tone and tenure of the definition\r\nof the `Bill of Exchange\' as contemplated by Section 5 of the Act. While\r\ndefining Bill of Exchange, which every cheque is, this Section has also\r\nemphasised only upon the fact that the same is signed by the maker of the\r\nBill of Exchange. A bare reading of Section 5 of the Act also shows that the\r\nonly thing which is insisted by this Section for validity of bill of exchange is\r\nthe `signatures\' of the maker of the bill. Everything else has been left to be\r\ndefined by the variable facts and circumstances of the case. Hence, this\r\nCourt is of the opinion that the fact that the body of the cheque is not filled\r\nup by the drawer of the cheque, is totally immaterial in a trial for offence\r\nunder Section 138 of NI Act. Once the cheque is a complete document,\r\ncontaining all the particulars, as required by the Negotiable InstrumentsAct,\r\nand the same bears undisputed signature of the drawer of the cheque, then,\r\nthe cheque would be a valid document under Negotiable Instrument Act,\r\nirrespective of the fact as to who has filled up the body of the cheque. This\r\nstrand of intention of legislature can be very well gathered from the other\r\nprovisions of the Act as well. Wherever the Act talks of liabilities on the\r\nbasis of Negotiable Instruments, it has emphasised only on the fact that the\r\ndrawer or indorser has signed the document. Not only that, the Act goes to\r\nthe extent of recognising the `indorsement in blank\' and presuming the\r\nauthority; with the holder in due course; to fill up the amounts therein. The\r\ndefinite provisions to this effect are contained in Section 13, Section 16 and\r\nSection 20 of the Negotiable Instruments Act. Still further, Section 89\r\nrecognises the negotiable instrument as a valid instrument despite the\r\nalteration thereon, if the alteration is not apparent on the face of it. This would also show that the Act is emphasising in favour of the validity of the\r\ninstrument if it is `signed\' by the drawer, maker or indorser. Moving a step\r\nfurther, Section 120 of the Act, creates an estoppel against the drawer of the\r\ncheque or maker of a promissory note or bill of exchange; by denying\r\nhim the right to question the validity of the instrument as originally\r\nmade or drawn. Therefore, there is no statutory or jurisprudential basis to\r\nhold that unless the body of the cheque is filled up by the drawer himself,\r\nthe cheque would not be taken as having been validly `drawn\' by him. Once\r\nthe signatures are not denied then it contains an in-built presumption that all\r\nthe material particulars have been filled up either by the drawer or with his\r\nauthorisation, unless the drawer proves it otherwise, by leading some other\r\nindependent evidence.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>As mentioned above, the fact that body of the cheque was filled\r\nup in handwriting other than that of the drawer of the cheque; is not any\r\nproof of the fact that the consent of the drawer; in drawing such a cheque;\r\nwas missing. If this is permitted then the drawer of the cheque can frustrate\r\nthe provisions of Negotiable Instruments Act in; virtually; every case. He\r\ncan get the cheque prepared as per his choice from some other person and\r\ncan subsequently start pleading that he had not filled up the body of the\r\ncheque or that he had not consented to the filling of the body of the cheque.\r\nIn such a situation, the payee or the holder in due course would have no\r\nmeans to prove his consent. Otherwise also, since the cheque is not a\r\ndocument which is required to be attested by witnesses for being a valid\r\ndocument, therefore, the complainant is under no legal obligation to\r\nexamine a witness to prove the due execution of the same. On the contrary,\r\nif the drawer of the cheque takes a plea that his consent qua drawing of the cheque was missing, then it is, exclusively; for the drawer to prove the fact\r\nthat he had not consented to the filling of the body of the cheque.\r\nAlthough the counsel for the petitioner has relied upon a\r\njudgment of Orissa High Court in case M/s Surveka Distributors Pvt. Ltd.\r\nand others v. M/s S.R. Retail Zone Pvt Ltd., 2018(5) R.C.R. (Criminal)\r\n317 and a judgment of Kerala High Court in case C. Santhi v. Mary\r\nSherly, 2011(4) R.C.R. (Criminal) 94. However, this Court finds the said\r\njudgments to be distinguishable on the facts of these cases. In case of M/s\r\nSurveka Distributors Pvt. Ltd. (supra), it is clear that the accused in that\r\ncase has taken a plea that he was having regular business dealings with the\r\ncomplainant and he had given the un-filled cheque in good faith to the\r\ncomplainant. Therefore, to establish his plea of good faith in handing over\r\nblank cheque to the complainant of that case, the accused had prayed for\r\ncomparison of signatures of the `complainant\' on the said cheque. In the\r\npresent case, the accused/ petitioner is not seeking the comparison of\r\nhandwriting of the complainant, rather, he is seeking comparison of his own\r\nhandwriting, in a virtual attempt to say that it is not he who filled up the\r\nbody of the cheque, whereas anybody else may have done it. However, as\r\nmentioned above, this is not any defence for the accused in a case under\r\nSection 138 of Negotiable Instruments Act. So far as the judgment of the\r\nKerala High Court in C. Santhi\'s case (supra) is concerned, this Court is\r\nin respectful partial disagreement with the said judgment. This Court finds\r\nthat as per the statutory provisions the word `drawn\' is not defined by the\r\nAct. Even the definition of the cheque is such which may not even require\r\nany handwriting of the drawer of the cheque. It can be even any digital\r\nformat requiring only digital `signature\'. All the provisions of Negotiable Instruments Act only require signatures of the drawer on such instrument\r\nfor making it a valid tender. Therefore, as observed above, once the\r\nsignatures are not disputed; then the cheque has to be taken to have been\r\ndrawn by the drawer himself, however, subject to the other defences which\r\nthe drawer may be able to take; in accordance with law.\r\nThis Court also finds that the trial Court has rightly recorded\r\nthat it is not even the case of the complainant that the cheque was filled up\r\nby the petitioner/ accused in his presence. Rather, it is the case of the\r\ncomplainant that the body of the cheque was already filled up and the\r\npetitioner only put his signatures in his presence. Therefore, getting\r\ncompared the handwriting for the purpose of a fact; which is not even\r\nclaimed by the complainant; would have been a useless exercise. Hence,\r\nthis Court does not find any illegality or perversity in the order passed by\r\nthe Courts below.\r\nEven otherwise, the petitioner has already availed his remedy of\r\nrevision against the order passed by the trial Court. The second revision by\r\nthe same party is expressly barred under Section 397(3) Cr.P.C. Since in\r\nthe present case also, the petitioner has tried to reck up the issue of `legality\'\r\nor `propriety\' of the orders passed by the Courts, therefore, the present\r\npetition is nothing but a second revision; in the garb of petition filed under\r\nSection 482 Cr.P.C. However, a person cannot be permitted to do indirectly\r\nwhat he cannot do directly. This proposition of law has already been\r\nconsidered and decided by this Court in CRM-M-30350 of 2018 – Sudesh\r\nand others v. State of Haryana and another, as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“So far as the present petition is concerned, this petition\r\nhas been filed for invoking power of the High Court under Section 482 Cr.P.C. A bare perusal of Section 482 Cr.P.C shows\r\nthat the power under Section 482 Cr.P.C can be invoked for\r\nthree purposes, namely, for giving effect to the orders passed\r\nunder this Court, for preventing the abuse of the process of the\r\nCourt and to meet the ends of justice. In the present case, the\r\nprayer of the petitioners is not for giving any effect to any\r\norder passed by the Court. Therefore, the first eventuality\r\nprescribed under Section 482 Cr.P.C is not at all attracted. Still\r\nfurther, by any means, an order passed by a Court of competent\r\njurisdiction and continuation thereof; cannot be branded as an\r\nabuse of the process of Court; unless it is alleged and shown to\r\nthe High Court that the Courts below had acted for irrelevant\r\nreasons or for extraneous considerations. Needless to say that\r\nsufficiency of reasons is not to be gone into after the revisional\r\nCourt. It is not even the allegation of the petitioners in this\r\ncase that orders are passed by Court below; for irrelevant or\r\nextraneous considerations. So far as the third ingredient of\r\nSection 482 Cr.P.C is concerned, this Court is not supposed to\r\ngo into `legality\' and `propriety\' of the order passed by the trial\r\nCourt. Section 397(3) of Cr.P.C prohibits second revision by a\r\nparty. Under Section 397(1), the Revisional Court is\r\nauthorised to see `legality\' and `propriety\' of the order passed\r\nby the Court. Since second revision by the same party is\r\nprohibited under Section 397(3), therefore, any argument\r\non `legality\' or (O&M) -12-\r\n`propriety\' of an order passed by the Court below, ordinarily, is\r\nnot to be appreciated in proceedings under Section 482 Cr.P.C,\r\nunless it is shown, at the macro level, that such an order has\r\nresulted from considerations which were totally alien to the\r\nprocess of the Court or have produced incomprehensibly\r\nabsurd result and, therefore, have resulted in defeating the ends\r\nof justice itself. What cannot be done directly, cannot be done\r\nindirectly as well. In the present case, except to argue for reappreciation of the material before the trial Court, there is not\r\neven a submission or an allegation regarding any aberration in\r\nthe process adopted by the Courts for passing the impugned\r\norders. Therefore, power under Section 482 Cr.P.C cannot be\r\nexercised by this Court to re-appreciate the same material,\r\nwhich was available before the Courts below and which have\r\nbeen duly appreciated by the Courts below.”</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In the present case, much less to speak of any process alien to\r\nlaw being adopted by the Courts below, as stated above, this Court does not\r\nfind even any illegality or perversity in the orders passed by the Courts\r\nbelow. Hence, the present petition is, otherwise also, not maintainable. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Dismissed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3be5f44ea6ebc33b8ea4f494cb90f0d5.jpeg', '2b33ff9eb25b3a6303f6d624ec670bfe.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-17', 1, '', '', '2022-03-17 18:04:18', '2022-03-18 05:47:49'),
(1434, 'penlWULmycMpPhsfZU7bEY926', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Permission to mark document or marking of a document does not by itself amount to admission in evidence, unless it is specifically admitted by the parties. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ganga Devi G Vs Lathakumari K.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>RFA 658 of 2016 decided on 21 October 2021.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P Somarajan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>A decree was passed in a suit for realization of\r\nmoney based on a cheque by the trial court, against\r\nwhich the defendant came up mainly on the ground that\r\nthe court below accepted additional proof affidavit\r\nand documents produced along with it exhibited as A3,\r\nA4 and A5,without affording an opportunity of cross examination. An additional proof affidavit was\r\nsubmitted after the examination of plaintiff and\r\nclosing of the evidence. Along with the additional\r\naffidavit, three documents were produced, which were\r\nmarked as Exts.A3 to A5. Additional affidavit and the\r\ndocuments marked were taken up, discussed and\r\nappreciated as piece of evidence and relied on by the\r\ntrial court without affording an opportunity to cross examine the witness or the documents thereof.\r\nThereby, the mandate under Sections 137 and 138 of the\r\nEvidence Act has been overlooked by the trial court.\r\nThe right of cross-examination of a witness on any\r\ncrucial aspect and on the documents relied on is an\\indefeasible right. The only exception to this general\r\nrule is under Section 139 of the Evidence Act, when a\r\nperson is summoned for mere production of a document\r\nand not as a witness. There shall not be any\r\nmisunderstanding between denial of right of cross examination, failure to conduct cross-examination and\r\nwaiver of such right of cross-examination. Among\r\nthese three, the first one alone would make the chief\r\nexamination inadmissible in evidence. There may be\r\ncases in which there is failure on the part of\r\nopposite party or opponent to cross examine the\r\nwitness or waiver of the right of cross examination.\r\nIn both these cases, the oral testimony by way of\r\nchief examination would acquire the character of\r\nevidence.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. In State of U.P. v. Nahar Singh (dead) [(1998)\r\n3 SCC 561),the Apex Court had considered the principle\r\nembodied under Section 138 of the Evidence Act, which\r\nconfers a valuable right of cross-examination of a\r\nwitness and documents tendered in evidence by\r\nopposite party and the enlarged scope under Section\r\n146 of the Evidence Act to cross examine a witness to\r\nRFA No.658 of 2016\r\n4\r\ntest his veracity.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The right of cross-examination is not a mere\r\nformality to be complied with, but it should reflect\r\nsufficient opportunity afforded to cross-examine the\r\nwitness on all disputed matters. The extensive nature\r\nof right of cross-examination was also laid down by\r\nthe Apex Court in Dahyabhai Chhaganbhai Thakker v.\r\nState of Gujarat (AIR 1964 SC 1563), wherein a new and\r\nimportant matter was allowed to be introduced in reexamination without affording sufficient opportunity\r\nto cross-examine the witness on the newly introduced\r\nmatter and it was held that the three minutes time\r\ngiven for cross-examination is insufficient.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Then comes the question what would be the\r\nlegal position when the witness died after the chief\r\nexamination, but before cross-examination or before\r\ncompletion of cross-examination. It was held by the\r\nApex Court in Satnam Singh v. Sadhu Singh 2001 (8)\r\nSupreme 574) that in such situation, it is not\r\npermissible to eschew the entire oral evidence\r\ntendered by the witness.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. When the witness died after chief examination\r\nand before cross-examination, the court cannot eschew\r\nthe entire oral testimony, but should seek\r\ncorroboration by other pieces of evidence and in the\r\nabsence of such corroboration, the court will be\r\njustified in rejecting the entire version given in\r\nchief examination. The court must be so cautious while\r\nrejecting the entire version given in chief\r\nexamination, when the witness died before cross examination. A different criteria can be applied when\r\ncross-examination was started, but not completed. The\r\nportion of evidence which was subjected to cross examination will form part of evidence, while the rest of the portion needs corroboration. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. A proof affidavit, additional proof affidavit\r\nor documents tendered, if not allowed to be tested by\r\ncross-examination, will not form part of the evidence.\r\nLike wise, mere marking of documents would not itself\r\namount to acceptance in evidence, except when marked\r\nwith a prefix or suffix “not objected” and it should\r\nfind a place in the proceedings, wherein the document\r\nwas marked, otherwise, the marking of document should\r\nbe only for the purpose of its identity. At this\r\njuncture, it is worth to note that a Constitution\r\nBench of the Apex Court in State of Karnataka v. State\r\nof A.P. [2000 KHC 1833 = (2000) 10 SCC 607], while\r\nmarking interse correspondence as exhibits as agreed\r\nby the parties, clarified that it would not mean that\r\nthe truth of the contents is admitted by the other\r\nside. The principle behind it is so clear that marking\r\nof a document does not by itself amount to admission\r\nin evidence, unless it is specifically admitted by the\r\nparties. The permission or consent granted to mark the\r\ndocument shall not be misconstrued as an admission to\r\nthe content of the document. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The Apex Court in yet another decision in\r\nNarbada Devi Gupta v. Birendra Kumar Jaiswal and\r\nAnother (2003 KHC 1695 = AIR 2004 SC 175) has laid\r\ndown the legal position that mere production and\r\nmarking of a document as exhibit by the court cannot\r\nbe held to be due proof. However, the situation is\r\ndifferent where the documents are produced, and they\r\nare admitted by the opposite party and exhibited by\r\nthe court based on the admission.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The legal necessity to record whether the\r\ndocument was marked without any objection or subject\r\nto proof was also considered by this Court in\r\nNilavarnisa and Others v. M.M.Faizal and Others\r\n(2019(1) KHC 699 = 2019(1)KLT 652) and laid down that\r\n“even if there is a consent given by the opposite side\r\nto mark a document, if the contents of the document is\r\nspecifically subject to proof, the documents shall be\r\nmarked by the Tribunal only subject to proof and the\r\nsame shall be evident from the order sheet, B Diary\r\nand it is apt that a mention is made in the award\r\nalso”.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The decree and judgment of the court below\r\nhence cannot be sustained and liable to be set aside.\r\nI do so. The case is remanded back to the trial court\r\nso as to afford an opportunity to cross examine the\r\nplaintiff on the additional proof affidavit and\r\ndocuments Exts.A3 to A5. The parties may also be\r\npermitted to adduce additional evidence, if any and\r\nshall dispose of the suit within a time schedule of four months from the date of appearance of parties.\r\nThe parties shall appear before the trial court on\r\n22/11/2021.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The appeal is allowed in part accordingly.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c63fc14f817965ee6a3499ecd55ea3ae.jpeg', 'bec5abe3dc04264da6b1b3b4e95c3e5e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-17', 1, '', '', '2022-03-17 18:28:07', '2022-03-18 12:18:31'),
(1435, 'gmPjrMMuO6yWw5yNdgaEbwWQZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When electronic evidence in CD or Pendrive is found to be not authentic, Courts cannot direct party to give his voice sample to be compared with the voice contained in the CD or Pendrive. Punjab High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jatinder Pai Singh Vs Krishan Kishore Bajaj.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRM-M-37435 of 2018 decided on 29 October 2018.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Rajbir Sehrawat.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Having heard the counsel for the petitioner and the respondent\r\nin person, this Court finds that the trial Court has not committed any\r\nillegality or irregularity in dismissing the application moved by the\r\npetitioner. The arguments raised by the learned counsel for the petitioner\r\nare found to be without any basis of pleadings or the evidence. On the other\r\nhand, the submissions made by the respondent are found by this Court to\r\nhave sufficient substance. So far as the judgments relied upon by the\r\npetitioner are concerned, the same are distinguishable on the facts of the\r\npresent case.\r\nThere is no dispute that if the information contained in the&nbsp; alleged recorded conversation is pertaining to a relevant fact then the\r\nrecording itself is relevant and can be admissible in evidence. However,\r\neven for proof of an admissible evidence, the mode prescribed for proving\r\nthe same has to be adhered to by the parties; so as to ensure the compliance\r\nof the legal provisions of evidence; since the proceedings have the\r\ncapability of effecting the rights of the parties. The advancement of\r\ninformation technology is a recent trend. Hence, the law of evidence also\r\nhas to keep pace with the advancement of technology. Plethora of\r\ninformation is stored on or created through the devices popularly called as\r\ncomputers or the metamorphosed form of the same, like the mobile phones,\r\nwhich are also based upon computer processor. The litigating parties were\r\nbound to rely upon such information; created as computer output.\r\nResultantly, Section 65-A and Section 65-B were added; by way of\r\nAmendment Act No.21 of 2000; to the Indian Evidence Act. Section 65-A\r\nprovides that contents of electronic record may be proved in accordance\r\nwith the provisions of Section 65-B. Then Section 65-B gives the complete\r\nmethodology of proving the admissible electronic records.&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Since, the electronic information record is comprised in digital\r\ncodes formats, therefore, by using appropriate softwares &amp; hardwares,\r\nvirtually any information can be created by arranging those digits in that\r\nparticular manner, so as to create the digital information; containing therein\r\na linguistic sentence or a sentence of conversation in audio form. Once an\r\ninformation is created, its mirror image can be used by a person claiming it\r\nto be the copy of the original. Still further, by passing the so created\r\ninformation through the appropriate filters of softwares, data or the filters of\r\npitch and frequency, which again would be in the digital form, voice of\r\nanybody can be re-created by the experts of the computer field. Hence,\r\nsince the entire computer information is in the form of precise digital form\r\nonly, therefore, the same can be created as `original\' also with the same\r\nprecision, even without the risk of possibility of the fabrication being easily\r\ndetected. Its only the question of as to what is the level of expert who is\r\ncreating the digital information. Hence, the digital information has to be treated with due suspicion and more stringent test has to be applied to it\r\nthan the ordinary evidence, as has been held by the Hon\'ble Supreme Court\r\nin its judgment rendered in 2010(1) RCR (Civil) 959 – Tukaram S.\r\nDighole v. Manikrao Shivaji Kokate. Hence, the authenticity of the\r\nrecording of the information is as important as the content of the\r\ninformation itself, lest the Court should be taken for a ride by unscrupulous\r\nexperts in the field of the fabrication of the information. Accordingly, the\r\nabove mentioned Section 65-B of the Indian Evidence Act has laid down a\r\nstrict test to ascertain the authenticity of the creation or the recording of the\r\ninformation.\r\nWhat is permissible to be led in evidence under Section 65-A\r\nand 65-B of Evidence Act is the computer output of Electronic Information.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>As mentioned above, the computer output is the retrieval of the electronic\r\ninformation, which is otherwise readable only by a machine, into an output\r\nwhich is recognisable by human senses, like, text print-out on a page, video\r\non a screen or audio played on a device. Before being retrieved through an\r\noutput device, like printer, screen or audio device, the electronic\r\ninformation is in existence and is stored in the form of processed digital\r\ncodes, created through the computer processor. The same piece of machine\r\nreadable information can be retrieved in different manner and different\r\nforms on different types of output devices. Therefore, the\r\noriginal electronic information is the information which is present in the\r\nforms of digital codes stored on default memory device. The computer\r\noutput of the same is only reproduction of the same in different formats.&nbsp; Therefore, it is only this default memory device which contains the\r\n`Primary\' information created by the computer processor. Any copy of this\r\non any other device is only a `Secondary\' information or the secondary\r\nevidence in legal parlence. However, what is normally sought to be\r\nproduced before the Court in evidence is either the `output\' or the `copy\' of\r\nthe original information stored as digital codes. Therefore, the conventional\r\ncatagorization of evidence&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in `Primary\' and `Secondary\' evidence does not\r\nstrictly holds good in case of electronic record or the computer output.\r\nHence, Section 65-B of Evidence Act insists for certificate qua the\r\nauthenticity of electronic evidence; without making any distinction of\r\n`Primary\' or `Secondary\' evidence, unlike the other documentary evidence.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>The above said provision of the Indian Evidence Act, which\r\nhas been specifically added by the legislature and which uses a non obstante\r\nclause over-riding any other provision contained in the Evidence Act, shows\r\nthat the authenticity of the instrument of recording of information and the\r\nmode of recording and also the recording itself, are as much important as\r\nthe contents of the information sought to be produced before the Court itself\r\nare. Hence, besides the relevance of the contents of the information, the\r\nauthenticity of the recording device, its proper functioning and the\r\ninformation being correct output of the recording are equally important\r\ncorner stones; for permitting any electronic evidence to be led in evidence\r\nbefore the Court.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">Although there are certain judgments, including from the\r\nHon\'ble Supreme Court, to say that in case the electronic evidence is\r\nproduced by a party in the form of primary evidence then the certificate as\r\nrequired under Section 65-B(4) of Indian Evidence Act may not be required,&nbsp; however, those judgments pertained to the electro magnetic recording in the\r\nform of audio tapes. In those cases, the original audio tapes were sought to\r\nbe produced before the Court. However, the same analogy may be hard to\r\nbe applied in case of computer output; without insisting for authenticity of\r\nand source of recording. Therefore, the Hon\'ble Supreme Court of India in\r\n2017(3) RCR (Criminal) 786 – Sonu @ Amar v. State of Haryana, has\r\nheld that an electronic record is not admissible unless it is accompanied by a\r\ncertificate as contemplated under Section 65-B(4) of Indian Evidence Act.\r\nThe position has further been clarified by a three Judges Bench of the\r\nHon\'ble Supreme Court of India in 2015 (1) SCC (Civil) 27 – Anvar P.V.\r\nVs. P.K. Basheer and others</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Coming to the facts of the present case, the petitioner had not\r\neven disclosed in his application as to when the information; as contained in\r\nPen Drive and the Compact Disc, was recorded. It is also not disclosed as\r\nto what was the original instrument/ computer/device through which the\r\ninformation as contained in Pen Drive and CD was recorded. Even this is\r\nnot disclosed as to what was the activity, which was being regularly carried\r\nout; during regular operation of which; the respondent had made the\r\nadmitting statement; as contained in the Pen Drive and the CD sought to be\r\nproduced on record by the petitioner. Even during the arguments of the\r\npresent petition, the petitioner has not been able to disclose as to when and\r\nCRM-M-37435 of 2018 (O&amp;M) -20-\r\nthrough which instrument, the alleged information contained in Pen Drive\r\nand CD was recorded. Therefore, the pleadings and the arguments of the\r\npetitioner are singularly silent qua the authenticity of the information as\r\ncontained in the Pen Drive and the CD. As a result, the statement of the\r\nrespondent that the information is totally unauthentic; finds acceptance with\r\nthis Court. Since there is nothing on record to show the authenticity of the\r\ninformation as contained in Pen Drive and CD, the trial Court has rightly\r\ndeclined the same to take into consideration. Since the information as\r\ncontained in the Pen Drive and CD itself has been found to be non-authentic\r\nby the trial Court, therefore, there is no question of the trial Court directing\r\nthe respondent to give his voice samples; for being compared with the voice\r\nas contained in the Pen Drive and the CD.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Hence, the trial Court has rightly\r\ndismissed the application filed by the petitioner.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span><b style=\"font-size: 12pt;\">In view of the above, finding no merit in the present petition,\r\nthe same is dismissed.\r\nHowever, since the complaint itself is of the year 2016, and it is\r\nstill pending, although the same was required to be finally decided within a\r\nperiod of six months, therefore, it is directed that the trial of the complaint\r\nitself would be completed by the trial Court within a period of two months;\r\nfrom the date of receipt of the certified copy of this order.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1301eb4803dae3214d361fbefd60e6b2.jpeg', '545241e8a89d946918cd2c286011f956.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-17', 1, '', '', '2022-03-17 18:59:51', '2022-03-18 09:36:08'),
(1436, 'gSXuyxV2x0M8Fsk7zj2ogQq6S', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Consumer Protection Act. Losing case on merits after advocate argued matter cannot be said to be deficiency in service on the part of the advocate. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nandlal Lohariya Vs Jagadish Chand Purohit and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Special Leave Petition (C) Diary No.24842 of 2021 decided on 8 November 2021<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Justice M.R. Shah and Justice B.V. Nagarathna<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>Feeling aggrieved and dissatisfied with the impugned judgment and\r\norder passed by the National Consumer Disputes Redressal Commission,\r\nNew Delhi dated\r\n25.11.2019 in Revision Petition No. 380/2019 and order dated 07.01.2020\r\npassed by the learned National Commission in Review Application No.\r\n348/2019 in Revision Petition No. 380/2019, by which the learned National\r\nCommission has dismissed the said revision petition and has confirmed the\r\norders passed by the Rajasthan State Consumer Disputes Redressal\r\nCommission, Jaipur&nbsp; and\r\nthe District Consumer Disputes Redressal Commission, Pratapgarh dismissing the complaint of the\r\npetitioner, the original complainant has preferred the present special leave petitions.&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>3. That the petitioner herein filed three complaints being complaint Nos.\r\n101/2014, 102/2014 and 01/2015 before the District Forum through his three\r\nadvocates against BSNL. All the three complaints came to be dismissed by\r\nthe District Forum on merits. That after dismissal of the complaints, the\r\npetitioner herein filed a complaint against the three advocates who appeared\r\non behalf of the petitioner in the aforesaid three complaints alleging deficiency\r\nin service on their part in contesting his cases before the District Forum&nbsp;4. Having heard Shri Viraat Tripathi, learned Advocate appearing on behalf\r\nof the petitioner and having gone through the impugned judgment and order\r\npassed by the learned National Commission and even the order passed by\r\nthe District Forum dated 30.06.2016 passed in original complaint nos.\r\n101/2014, 102/2014 and 01/2015, we are of the firm opinion that the District\r\nForum, the State Commission and the National Commission have rightly\r\ndismissed the complaint filed by the petitioner herein filed against the three\r\nadvocates who appeared on behalf of the petitioner in the aforesaid three\r\ncomplaints, which as such were dismissed on merits. There are no\r\nobservations by the District Forum against the advocates that there was any\r\nnegligence on the part of the advocates in prosecuting and/or conducting the\r\ncomplaints. In the common order, it has been specifically observed by the\r\nDistrict Forum that the allegations in the complaints are not proved and due to\r\nwhich all the three complaints are liable to be dismissed. Once the complaints\r\ncame to be dismissed on merits and there was no negligence on the part of\r\nthe advocates at all, it cannot be said that there was any deficiency in service\r\non the part of the advocates who appeared on behalf of the complainant and\r\nlost on merits.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>4... In each and every case where a litigant\r\nhas lost on merits and there is no negligence on the part of the advocate/s, it\r\ncannot be said that there was any deficiency in service by the advocate/s. If\r\nthe submission advanced on behalf of the petitioner is accepted, in that case,\r\nin each and every case where a litigant has lost on merits and his case is\r\ndismissed, he will approach the consumer fora and pray for compensation\r\nalleging deficiency in service. Losing the case on merits after the advocate\r\nargued the matter cannot be said to be deficiency in service on the part of the\r\nadvocate. In every litigation, either of the party is bound to lose and in such a\r\nsituation either of the party who will lose in the litigation may approach the\r\nconsumer fora for compensation alleging deficiency in service, which is not\r\npermissible at all.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>6. The special leave petitions are dismissed on the ground of delay as well\r\nas on merits. Pending applications, if any, also stand disposed of.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f56cd8cb62f9aabb2d92772217cd906a.jpeg', 'fc677841e3f549c15746792d5a5ce6de.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-17', 1, '', '', '2022-03-17 20:34:05', '2022-03-17 12:53:58');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1437, 'ZoolF9lVJE7gRxQKS7MO1F3WT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act. Section 133. There is no provision under the Act empowering the authorities to call for production of licence of the registered owner. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sivasankar G Vs The State of Kerala and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition(C) 14022 of 2019 decided on 11 October 2021.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sathish Ninan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Ext.P1 alleges that, the vehicle in question was\r\nfound having violated traffic signal and speed limits on\r\nseveral occasions (four). The notice alleges that the\r\nuser of the vehicle is a threat for pedestrians and\r\nother users of the road. Ext.P1 further calls for\r\nproduction of the driving licence of the person who\r\ndrove the vehicle within three days in terms of Section\r\n133 of the Motor Vehicles Act. Ext.P1 further cautioned\r\nthe petitioner that, if the driving licence as called\r\nfor is not produced within the time, the petitioner\'s\r\ndriving licence and also the registration of the vehicle will be cancelled.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The writ petition contains various narratives/\r\npersonal allegations against the 4th respondent. He has\r\nalso been impleaded in his personal capacity as the 5th\r\nrespondent. For the purpose of disposal of the present\r\nwrit petition I do not think it necessary to go into the\r\nfactual details since, Ext.P1, on the face of it, is\r\nunsustainable for reasons more than one.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Section 133 of the Motor Vehicles Act only\r\nenables to call for information of the driver, including\r\nhis licence details, which could by reasonable diligence\r\nbe ascertained by the owner of the vehicle. There is no\r\nprovision to call for production of licence of the\r\nregistered owner. Calling upon the petitioner to produce\r\nthe driving licence of the person who had driven the\r\nvehicle at the time of the alleged violations, is\r\nevidently beyond authority.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Secondly, the warning in Ext.P1 that in the\r\nevent of non-production of the licence as demanded, the registration of the petitioner\'s vehicle and his driving\r\nlicence will be cancelled, is without any sanction of\r\nlaw. Section 133 does not authorise such a course.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. All these apart, Ext.P1 does not give any\r\ndetails of the alleged violations except for a mere\r\nstatement that there has been violations on four\r\noccasions. The time, place and date are conspicuously\r\nabsent. The petitioner purchased the vehicle only in\r\nFebruary, 2015. The check report details in respect of\r\nthe vehicle, made available by the petitioner, for the\r\nperiod from 04.04.2013 to 30.03.2018 reveals that, after\r\nthe purchase of the vehicle by the petitioner there has\r\nbeen only one offence detected and that too of speed\r\nviolation. All the other occurred much prior to the\r\npurchase of the vehicle by the petitioner. To sum up,\r\nExt.P1 only deserves to be quashed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Accordingly the writ petition is allowed. Ext.P1\r\nnotice dated 25.07.2018 is quashed. While clarifying\r\nthat I have not considered the merits or otherwise of the other reliefs sought for in the writ petition, the\r\nsame are left open to be agitated before appropriate\r\nforum if the petitioner so chooses.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5db33e33715ff12249c57ec6839c690b.jpeg', '61b4e7988ec8f7c2145e95b2c8fa8970.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-17', 1, '', '', '2022-03-17 23:46:59', '2022-03-19 16:27:19'),
(1438, '8YxVKdJhyg5h5r6PTmnnCjHdv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Renewal of passport. Authorities cannot insist on production of facilitative order from the Court simply because criminal case is pending against the passport holder. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kasturi Rajupeta Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 19203 of 2021 decided on 17 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Having heard the learned counsel for the parties and having perused the petition papers, this Court  is inclined to grant indulgence in the atter as under and for the following reasons:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a) The Right to travel is an inviolable human right enshrined under Article 13 of the UNIVERSAL DECLERATION OF HUMAN RIGHTS. Under our Constitution, the Right to travel abroad is  held  to  be  a  facet of fundamental right to life &  liberty  guaranteed  under Article 21 vide MANEKA GANDHI vs. UNION OF INDIA AIR 1978 SC 597. The Apex court relying on the opinion of Justice William O. Douglas in the case of KENT v. DULLES 357 US 116 (1958) observed: “…<i>Mr. Justice Douglas said in Kent v. Dulles that ‘freedom of movement across frontiers in either direction, and inside frontiers as  well, was a part of our heritage. Travel abroad like travel within the country,  may be necessary for livelihood.  It may be as close to the heart of the individual as the choice of what  he  eats,  (1)  [1950]  S.C.R.  594  or   wears,  or  reads. Freedom of movement is basic in our Scheme of values.’ And what the learned Judge, said in regard to freedom of movement in his country holds good in our country as well. Freedom of movement has been a part of  our  ancient tradition which always upheld the dignity  of  man  and  saw in him the embodiment of the Divine…”</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(b) To go abroad, one needs Travel Documents namely, a Passport issued by his native country and the 5 Visa that may be issued by the host country. At  this juncture, it would be profitable to trace the historical and etymological origin of the use and nature of passports. The word Passport is derived from a French  word,  ‘passer’  (circa 15), literally meaning authorization to  depart  from the port. The word Visa is derived from Latin ‘videre’ (mid 19th century), which means ‘to see’, i.e., to see a place. The Madras High Court in V.G ROW vs. STATE OF MADRAS AIR 1954 Mad 240 has succinctly traced the history of the passport</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(c) The impugned Endorsement is structured on the ground that a criminal case is pending inter alia against the petitioner in C.C.No.11606/2020, in the Court of learned XVII ACMM, Bengaluru City. The same having been challenged in W.P.No.14431/2020, a Co-ordinate Bench of this Court has stayed all further proceedings before the Trial judge vide interim order dated 10.12.2020, is not in dispute. That being the position, the respondent- RPO is not justified in asking the petitioner to go the Trial the learned Trial Judge to seek permission to travel aboard in the ‘stayed proceedings’. The Notification dated 25.08.1993 purportedly issued under Section 22 of the Act, normally expects an order of the kind and this norm is applicable in ordinary circumstances, in the sense that the criminal proceedings are not stayed and hands of the Trial Judge are free to work, and not in the circumstances that have tied his hands. A contention to the contrary amounts to asking the citizen to do an impossible act. Ordinarily, an act impossible of performance is treated as either having been accomplished or waived vide lex non cogit ad impossibilia which Maxwell on Interpretation of Statutes,  12th Edition, Butterworths Wadhwa at pages 326 to 328 extensively discusses. Thus,  the  insistence  on  production of an order as mentioned in the impugned Endorsement is not justified.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(d) The subject 1993 Notification <i>“…exempts against whom proceedings in respect of an offence alleged to have been committed by them are pending before a criminal Court in India and who produce orders from the Court concerned permitting them to depart from India …”.</i> Thus, it stipulates that the accused seeking issuance of a passport or its renewal has to obtain an order at the hands   of the criminal Court concerned permitting him to travel to  a foreign land. However, this Notification has to be construed consistent with the Fundamental Right of a person to travel abroad and of possibility of its invocation,  as discussed above. When all further proceedings in the criminal case are interdicted by a higher Court, this Notification cannot be pressed into service to deny petitioner’s request for renewal/re-issuance of  passport, only on the ground  that a  criminal  case is  pending.  What is to be seen is the intent, content & invocability of the Notification. Otherwise, it amounts to burying the spirit of law by operating its black letter. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(e) The vehement contention of learned ASG that a criminal case is pending against the petitioner even when  the proceedings are stayed cannot be much disputed. The Apex Court in CHAMUNDI MOPEDS vs. CHURCH OF SOUTH INDIA TRUST 1992 (3) SCC 1, has maintained the difference between an ‘order stayed’ and an  ‘order quashed’. As long as proceedings are not quashed, so long they can be stated to be pending, going by the logic of this decision. Merely because a criminal  proceeding  is  said  to be pending, the obtainment of permission from the Court concerned does not become imperative regardless of the circumstances. As already mentioned above criminal proceedings are pending, notwithstanding there being a  stay, which has put them in suspended animation. The submission of learned Sr. Advocate appearing for the petitioner that till the presence of the  accused  after  issuance of notice post cognizance stage,  proceedings  cannot be said to be pending, is  bit  difficult  to  countenance. Such an  articulated  position  cannot  be drawn from what has been observed by two Co-ordinate Benches in W.P.Nos.35255-57/1997 between DR.C.D.JOHN & OTHERS vs. UNION OF INDIA & 11 OTHERS disposed off on 09.07.1998 and also in W.P.No.8958/2000 (GM-PASS) between B.KRISHNA BHAT vs. UNION OF INDIA & OTHERS disposed off on 25.10.2002. The concept of pendency of proceedings as stated in Black’s Law Dictionary does not much come to assistance since law is not slave of the dictionary. The  legal concepts again do not have fixed contours. Their true meaning & scope depend upon the scheme of the statute in which they are employed, as rightly submitted by learned ASG. Therefore the provisions of Section 6(2)(f) employing the expression “proceedings … are pending before a criminal court” have to be liberally construed keeping in view other specific scenario mentioned in the companion clauses of the said sub-section. That having been said, this court hastens to add that the observations made by a Co-ordinate Bench in its interim order in petitioner’s W.P.No.14431/2020 about furnishment of her travel itinerary itself can be construed as the permission contemplated under the 1993 Notification. There is no need for one more order at the hands of Trial Magistrate more particularly when no specific format is legally prescribed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(f) Viewed from the above perspective, an eminent case of refusal to exercise jurisdiction has been made out warranting interference of this court. This is strengthened  by the opinion that how long it would take for the pending writ petition to see its destination point is not possible to  say, regard being had to enormous pendency of cases and paucity of  working hands.  Courts are meant for doing a   real justice to the causes brought before them and they cannot turn away the aggrieved parties by quoting some constitutional theories, when justice is apparently due to them. In  the  above  circumstances,  this  petition  succeeds. A Writ of Certiorari issues quashing the impugned Endorsement. A Writ of Mandamus issues to the 3rd respondent-Regional Passport Officer to consider petitioner’s subject application in light of the observations hereinabove made and without insisting upon any order from the Criminal Court concerned. Time for compliance is six weeks. However, justice of the case warrants a stipulation by this Court that petitioner shall not travel abroad without leave of the Criminal Court concerned, regardless of she being issued or not issued the passport. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>This court places on record its deep appreciation for the able assistance rendered by the Law Clerk and Research Assistant, Mr.Faiz Afsar Sait. Now, no costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a4fe6b9fbb6b573ae2788d1df92e4433.jpeg', 'e66ccd7db28bc5723b61cd540b705f6b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-18', 1, '', '', '2022-03-18 17:56:39', '2022-03-19 07:45:35'),
(1439, 'UBSJgrRUZPhXZFJFATxFnLp27', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for permanent injunction based on part-performance possession under Section 53-A of the Transfer of Property Act is maintainable. Punjab and Haryana High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rajender Singh Vs Nanga Nanak(Deceased) through LRs and Others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>RSA 988 of 2011 decided on 5 December 2017.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Rajbir Sehrawat.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Having heard, learned counsel for the parties and perusing the\r\nrecord with their able assistance, this Court is of the considered opinion that the counsel for the appellant has failed to substantiate his argument with\r\nreference to the record. So far as the agreement, in favour of the plaintiff\r\nNanak Singh is concerned, the same has already been held to be proved by\r\nthe Trial Court. That finding has become final also. Therefore, there is no\r\ndispute regarding the validity of the agreement in favour of Nanak Singh in\r\nthe present appeal. However, the submission of the counsel for the\r\nappellant that the ingredients of the Section 53-A of the Act has not been\r\nfulfilled in the case, is also not sustainable. It has come on record and has\r\nbeen proved by the plaintiff that the possession of the suit land had been\r\ndelivered to the plaintiff; at the time of agreement in question. This fact is\r\nrecorded in the agreement also. Hence, the deposition of the witnesses\r\nexamined by the plaintiff, regarding possession gets related to the recital in\r\nthe agreement in favour of the plaintiff. This shows that the possession, in\r\nfact, had been delivered to the plaintiff at the time of execution of the\r\nagreement itself. Still further, the defendant-Rajender Singh has also\r\nadmitted in cross-examination that he had the knowledge, that other cosharers had given possession of their respective shares to the plaintiff Nanak\r\nSingh. He has even admitted in the cross-examination; the site plan of the\r\nproperty, as was pleaded and proved by the plaintiff. The site plain also\r\nshows the boundaries to the suit property. Although, defendant has asserted\r\nthat boundary was raised by plaintiff after the purchase of the suit land by\r\nthe defendant, however, he has not led any cogent evidence on this aspects.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Otherwise also since the plaintiff was co-sharer in the suit property with his\r\nseller Manphool Singh, so after the purchase he shall be deemed to be in\r\npossession of share of Manphool Singh as well. Hence, the ingredient of\r\nSection 53-A of the Transfer of Property Act, regarding execution of the agreement and taking of the possession stand proved by the plaintiff. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>So\r\nfar as the remaining ingredients regarding doing something in furtherance of\r\nthe agreement and readiness and willingness on the part of the plaintiff to\r\nperform his part of the agreement are concerned, the same also stand duly\r\nproved by him. It has come on record that after the possession was taken\r\nover by him, he has altered the status of the land by raising construction and\r\ninstalling the boring and other equipment over the suit land. This, he has\r\ndone only in furtherance of the authority granted to him under the\r\nagreement in question. So far as the other ingredients, namely the readiness\r\nand willingness of the plaintiff to get the sale deed executed in his favour is\r\nconcerned, the Section of 53-A provides two eventualities, i.e. the vendee\r\nshould either have performed his part of agreement, or in alternative, he\r\nshould be willing to perform his part of agreement. As has come on record\r\nin the present case, the part of the contract, which was required to be\r\nperformed by the plaintiff qua this agreement, already stood performed by\r\nhim, since he had already paid the entire amount of consideration and he\r\nhad taken possession of the suit land, as a part of the performance of the\r\nagreement. Only thing, which was required to be done in that situation was;\r\nto be done by the vendor Manphool Singh only, by executing the sale deed.\r\nHowever, the same could not be done by him since Manphool Singh was\r\nnot available, having shifted to Rajasthan. For this missing element, by any\r\nmeans, it cannot be said that the plaintiff has not performed his part of\r\nagreement, as enjoined upon him under the agreement in question.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The judgments cited by the learned counsel for the appellant\r\nare not helpful to the case of the appellant. The same are distinguishable on\r\nthe facts of the present case. So far as the, judgment of Suraj Lamp and Industries Pvt. Ltd. (supra) is concerned, the same is an authority on the\r\npoint that the agreement referred to in Section 53-A of the Act cannot be\r\nused for claiming a title. However, in the present case, though the plaintiff\r\nhad sought a declaration of title also, however, the same has not been\r\ngranted by the Courts below to him. The plaintiff has been granted only an\r\ninjunction in his favour qua his possession. Therefore, this judgment is not\r\napplicable in the present case. So far as the, judgement rendered in A.Lewis\r\nand Anr.(Supra) is concerned, the same is also distinguishable in the\r\npresent case. As mentioned above, the plaintiff had already performed his\r\npart of the contract. Therefore, there is no silence or slumbering on his part.\r\nThe only thing required to be done was the execution of the sale deed by\r\nvendor. For that also, admittedly, no date was specified. Hence, it cannot\r\nbe said that the plaintiff was not justified in waiting for the vendor to\r\nexecute the sale deed, as and when, he returns from Rajasthan. Otherwise\r\nalso getting the sale deed executed immediately or within any specified time\r\nperiod is not a requirement under Section 53-A of the Act. So, the failure of\r\nthe purchaser to get the sale deed executed within some reasonable time,\r\nthough may be undesirable, yet it can not operate as a statutory bar against\r\nthe statutory right of the purchaser guaranteed by Section 53-A of the Act.\r\nNeedless to say that the desirability of an act and the legal requirement of\r\nsuch act are two different things. The mere desirability can not be raised to\r\nthe level of legal necessity, particularly, when it is not prescribed by the\r\nrelevant statutory provision. The reliance by the learned counsel for the\r\nappellant upon the judgment in case of Jarnail Singh (supra) is also not\r\nrelevant for the purpose of present case. As stated above, the ingredients of\r\nSection 53-A of the Act has been fully established by the plaintiff in the case. He has not been granted any declaration of his title. However, so far\r\nas, the injunction part is concerned, he has claimed in the suit and he has\r\nsatisfied the ingredients of the Section 53-A of the Act, therefore, this\r\njudgment does not stand in his way, as such, to deprive him the statutory\r\nprotection.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The last judgment sought to be relied upon by the counsel for\r\nthe appellant is the judgment rendered by the Hon\'ble Supreme Court in\r\nGuman Singh and Ors. (Supra) to contend that the plea of Section 53-Aof\r\nthe Act can be taken only as a defence and it cannot be made a basis for\r\nfiling a suit, by coming as plaintiff. However, this judgment is also not\r\napplicable in the present case. A perusal of this judgment shows that the\r\nHon\'ble Supreme Court made this observations in that case regarding suit\r\nfor title/ownership. Therefore, it was held that since, ownership was not\r\nproved, therefore, for the purpose of ownership, the agreement claimed by\r\nthe person in that case qua Section 53-A of the Act, could not have been\r\nused for claiming title. So far as the suit qua protection of possession is\r\nconcerned, the Hon\'ble Supreme Court has not laid down the law, as\r\nclaimed by the counsel for the appellant. The Hon\'ble Supreme Court has\r\nonly observed that in that particular case, since the transaction claimed by\r\nthe person for availing the benefit of Section 53-A of the Act was\r\ncompulsory required to be registered; and the same was not registered,\r\ntherefore, the same could not be taken into evidence for any purpose,\r\nwhatsoever, for his benefit. Therefore, the suit for injunction was also held\r\nto be not maintainable on his part. However, in the present case, as notice\r\nabove, the lower Appellate Court has rightly held that the agreement in\r\nquestion did not require any registration. Therefore, the plaintiff could not be non-suited, even for the purpose of injunction, claimed by him. Hence,\r\nthe Court below has rightly granted the injunction in favour of the plaintiff.\r\nOtherwise also, Section 53-A of the Transfer of Property Act\r\ncreates a benefit in favour of a person, who has a prior agreement in his\r\nfavour- along with the possession of land mentioned in the agreement. This\r\nSection creates a bar against, the original owner or a person claiming title\r\nunder him, for claiming any right title or interest qua the land mentioned in\r\nthe agreement, during the subsistence of such agreement. Therefore, if his\r\npossession is threatened then it is only the suit for injunction, which can be\r\nfiled by a person, claiming benefit of Section 53-A of the Act. Needless to\r\nsay that, if such a person is sued against then he will be entitled to take the\r\nsame, as defence also. Hence, so far as the possession is concerned, once a\r\nperson claiming benefit of Section 53-A of the Act; shows and proves the\r\ningredients of Section 53-A of the Act along with the requirement of\r\nregistration of the same, if any, then he can, very well, use the agreement, as\r\na basis for filing a suit, as plaintiff also. His remedy is not limited to take\r\nthe defence, in case a suit is filed against him.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>So far as the plea of bona fide purchaser, raised by the appellant\r\nis concerned, the same also deserves to be rejected. He has claimed that he\r\nis a bona fide purchaser. A specific issue was framed regarding his status, as\r\na bona fide purchase. The onus of the proof of the same was upon the\r\ndefendant-Rajender Singh. To claim the benefit of Proviso to Section 53-A\r\nof the Act, the defendant was required to prove that he had no notice of the\r\ntransaction in favour of the plaintiff. However, beside making a claim that\r\nhe inspected the revenue record, the defendant has not laid any factual\r\nfoundation or led any evidence on this point. So far as the entries in the revenue record are concerned, the same are irrelevant in the present case.\r\nAlthough, the land continues to be recorded in the revenue record, however,\r\nit is admitted between the parties that this land has become part of the\r\nresidential area. In the revenue record also, it is recorded, as \'gair mumkin\r\ngait\' (some open land adjacent to the residential area, for being used for\r\nteethering cattles and for storage of fodder etc.) This, by no means, can be\r\ntreated as an agricultural land. The presumption of the land being\r\nagricultural land, in this case, is also excluded by the very fact that, the\r\npartition, which was sought by Rajender Singh, has been sought through the\r\nCivil Court and not through the Revenue Authorities. In view of this, the\r\njudgment rendered by this Court in 2005 (3) RCR (Civil) 677 titled as Bal\r\nSingh and Ors. Vs. Ravinder Singh and Ors. is fully applicable.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The lower Appellate Court is right in holding that once the\r\ndefendant-Rajender Singh admitted that other co-shares had also given\r\npossession to the plaintiff then it was bounden duty upon him to enquire\r\nfrom the plaintiff also; before the proceeding further to purchase the land in\r\nquestion, since, the plaintiff, admittedly, is a co-sharer in the suit land even\r\nwith his seller Manphool Singh. However, there is nothing on record, either\r\npleaded, deposed or otherwise proved on record; to show that any inquiry\r\nwas ever made from the plaintiff by the defendant-Rajender Singh before\r\npurchasing the suit land from Manphool Singh. Otherwise also, the facts\r\nproved on record show that the defendant was residing in the adjacent\r\nhouse. The site plan, as produced by the plaintiff; has also been admitted by\r\nthe defendant. Still further, it has been categorically admitted by the\r\ndefendant that he is not aware, as to whether, the plaintiff had taken\r\npossession of the suit, at the time of agreement, which he claims in his favour or not. This is a kind of evasiveness on the part of the defendant\r\nregarding status of possession. This also shows that he had the knowledge\r\nof the fact that the plaintiff had taken possession of the suit land at the time\r\nof agreement mentioned in the plaint. Hence, it was incumbent upon the\r\ndefendant-Rajender Singh to inquire from the plaintiff before purchasing the\r\nsaid land. Otherwise also, since the plaintiff was already a co-sharer with\r\nManphool Singh, so he shall be deemed to be in possession of every inch of\r\nland with other co-sharer. Hence, since no reasonable inquiries has been\r\nmade by the defendant-Rajender Singh before purchasing the suit land,\r\ntherefore, he cannot be held to be a bona fide purchaser. Another aspect,\r\nwhich need to be noted is that the plaintiff Nanak Singh has categorically\r\ndeposed that the defendant had the knowledge of existence of agreement in\r\nfavour of Nanak Singh. Despite that even Nank Singh has not been cross examined on this point specifically. This also shows that the defendant Rajender Singh had the knowledge of the existence of the agreement in\r\nfavour of Nanak Singh.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>No other argument was raised.\r\nHence finding no perversity, the judgment and decree passed by\r\nthe lower Appellate Court are upheld.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In view of the above, finding no merits, both the appeals are\r\ndismissed.</b></span></p>', '54747186c8403322338cbfeab2b25389.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-18', 1, '', '', '2022-03-18 20:39:39', '2022-03-19 09:36:57'),
(1440, 'Iq1ytbZlcPDyMJGn53CD8kzeC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bar under Section 362 Criminal Procedure Code applies to applications seeking substantive review and not procedural review. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ganesh Patel Vs Umakant Rajoria.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>SLP 9313 of 2021 decided on 7 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sanjiv Khanna and Justice Bela M. Trivedi.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The compromise deed was also relied upon by the\r\npetitioner before the High Court in CRR NO. 3100/ 2015,\r\nwhich was dismissed vide order dated 18.02.2016. This order\r\nspecifically records that on two previous dates, viz.,\r\n07.12.2015 and 14.01.2016, the appellant was directed to\r\nsurrender before the trial court, but he had not done so.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The order dated 18.02.2016 was challenged before this\r\ncourt in Crl.M.P. No. 20184 of 2016, which was dismissed\r\nvide order dated 25.04.2017, as the appellant had not\r\ncomplied with the direction to surrender and file proof\r\nwithin four weeks. The prayer for exemption from surrendering was rejected.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner, had filed a criminal appeal along\r\nwith an application for condonation of delay under section\r\n5 of the Limitation Act, 1963, before the Sessions Court,\r\nSagar. This application was dismissed vide order dated\r\n23.09.2015. Resultantly, the criminal appeal was dismissed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner filed another appeal and section 5\r\napplication for condonation of delay before the ASJ,\r\nSagar, which was dismissed vide order dated 30.03.2016.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Undeterred by the aforesaid orders, the petitioner\r\nfiled Miscellaneous Criminal Case No. 6576 of 2017 before\r\nthe High Court contending that there has been a compromise\r\nbetween him and the respondent. This petition under section\r\n482 of the Code of Criminal Procedure, 1973, was allowed ex\r\nparte vide judgment dated 13.10.2017.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The respondent thereupon preferred an application for\r\nrecall of the order dated 13.10.2017. The aforesaid order,\r\nit was stated, was passed in the absence of the respondent,\r\nand based on false information. The High Court recalled the\r\norder dated 13.10.2017 vide the impugned order dated\r\n23.10.2021.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This application for recall of the order was maintainable\r\nas it was an application seeking a procedural review, and not a substantive review to which Section 362 of the Code\r\nof Criminal Procedure, 1973, would be attracted. On the\r\naspect of the difference between recall and review and when\r\nan order of recall can be passed reference can be made to\r\nBudhia Swain and Others v. Gopinath Deb and Others.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The High Court was therefore right in recalling the order\r\nand listing MCRC No. 6576/2017 for hearing and decision on\r\nmerits.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rs. 25,000/- (Rupees Twenty Five Thousand Only)\r\ndeposited by the petitioner in terms of the order dated\r\n10.12.2021 would be paid to the respondent.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>For the reasons stated above, the petition seeking\r\nspecial leave to appeal is dismissed and the interim order\r\npassed by us on 11th February, 2022 will no longer operate.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>All pending applications stand disposed of.</b></span></p>', '4436f5b4add90f3f3c882e4dfbcd9369.jpeg', '4200c13643d6298a610f5349cbe5eb87.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-18', 1, '', '', '2022-03-18 21:00:01', '2022-03-19 23:15:18'),
(1441, '0TadbKA0mZh12wV5lphLvQyjo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When judgment debtor pleads no means to pay decree debt, executing Court must conduct enquiry under Order XXI Rule 40 CPC before issuing warrant of arrest against him. Kerala High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Dileep Kumar Vs Sriram Transport Finance Co. LTD and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>OP(c) 122 of 2022 decided on 20 of January 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A. Badharudeen.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The second judgment debtor in E.P.No.65/2019 in Arb.OP\r\nNo. 281/2016 has filed this Original Petition under Article 227 of\r\nthe Constitution of India.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n2. It is submitted by the learned counsel for the petitioner\r\nthat though the second judgment debtor filed an objection, raising\r\nspecific contention that he had no means to pay the decree debt,\r\nwithout conducting an enquiry under Order XXI Rule 40 of the Civil\r\nProcedure Code (hereinafter refers to as ‘CPC’) warrant of arrest\r\nwas issued.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Proviso to Order XXI Rule 37 stipulates that such notice\r\nshall not be necessary if the Court is satisfied, by affidavit or\r\notherwise, that, with the object or effect of delaying the execution\r\nof the decree, judgment-debtor is likely to abscond or leave the\r\nlocal limits of the jurisdiction of the Court. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 6. Further Order XXI Rule 37 (2) provides that where\r\nappearance is not made in obedience to the notice, the Court shall,\r\nthe decree-holder so requires, issue a warrant for the arrest of the\r\njudgment-debtor.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Thus, it appears that as per proviso to Order XXI Rule\r\n37, a warrant of arrest can be issued without issuing Rule 37(1)\r\nnotice, if the Court is satisfied by affidavit or otherwise that, with\r\nthe object or effect of delaying the execution of the decree, the\r\njudgment debtor is likely to abscond or leave the local limits of the\r\njurisdiction of the Court. Further when the appearance is not\r\nmade by the judgment debtor in obedience to Rule 37, the Court\r\nshall, if the decree-holder so requires, issue a warrant for the\r\narrest of the judgment-debtor.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Order XXI Rule 40 dealing with two situations. First\r\nsituation is when the judgment-debtor appears on getting notice\r\nunder Order XXI Rule 37; and the second situation is when the\r\njudgment-debtor is brought before the court after being arrested\r\nin execution of a decree for the payment of money before proving\r\nhis means. In this connection, it has to be observed that the\r\njudgment-debtor is not entitled to further opportunity after the Court had entered a finding that he has sufficient means and has\r\nwillfully neglected to pay the decree-debt. A conjoint reading of\r\nRule 37 and Rule 40 of Order XXI and Section 51 show that the\r\nCode envisages only one enquiry regarding the judgment-debtor\'s\r\nliability for detention in prison in execution of a money decree and\r\nenquiry under Rule 40 is not necessary if the warrant is issued\r\nafter finding means pursuant to the first situation provided under\r\nRule 40(1) of Order XXI. Thus, Order XXI Rule 40 provides that\r\nwhen the judgment-debtor appears on notice issued under Rule\r\n37, or is brought before Court after being arrested. The Court shall\r\nproceed to hear the decree-holder and take all such evidence as\r\nmay be produced by him in support of his application for\r\nexecution, and shall then give the judgment-debtor an opportunity\r\nof showing cause why he should not be committed in civil prison.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Order XXI Rule 40(2) provides that pending the\r\nconclusion of the inquiry under sub-rule (1), the Court shall release\r\nthe judgment-debtor on his furnishing security to the satisfaction\r\nof the Court for his appearance when required and if the\r\njudgment-debtor fails to furnish the security ordered, the Court\r\nmay order the judgment-debtor to be detained in the custody of an officer of the Court on the decree-holder depositing in Court the\r\nnecessary amounts payable to the judgment-debtor and the officer\r\nof the Court in connection with such detention.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Thereafter, on conclusion of the enquiry under\r\nsub-rule(1), subject to the provisions of Section 51 and provision\r\nof the Code make an order for the detention of the judgmentdebtor to civil prison, and shall in that event, caused him to be\r\narrested if he is not already under arrest.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. In this case, the petitioner herein, who is the second\r\njudgment-debtor appeared before the Court on getting notice\r\nunder Order XXI Rule 37 of the CPC and filed objection stating that\r\nhe had no means to pay the decree-debt. In such contingency, it\r\nis mandatory for the Court to conduct an enquiry under Order XXI\r\nRule 40 of CPC before issuing warrant of arrest against him.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In view of the matter, the order is per se illegal and\r\ntherefore, the said order requires interference being perverse,\r\narbitrary and illegal. Therefore, the order impugned is set aside.\r\nThe learned District Judge is directed to consider the objection filed\r\nby the second judgment debtor and conduct enquiry regarding the\r\nmeans as provided under Order XXI Rule 40 of CPC an orders based on the said finding, afresh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The said exercise shall be\r\ndone within a period of two months from the date of production or\r\nreceipt of a copy of this judgment.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>With the above directions, this Original Petition (Civil) stands\r\ndisposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Registry is directed to forward a copy of this judgment to the\r\nDistrict Court, Kalpetta, within seven days, for information and\r\ncompliance.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e55ef2fbf408cb8bd7dca6a6f982af57.jpeg', 'cbf4b7e2b6a566b7f8ecd01b310be10c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-18', 1, '', '', '2022-03-18 21:23:42', '2022-03-19 13:35:20');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1442, 'l2FI9tsepiiWiXTxgi2H5BcFV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Partnership Act, 1932. Even if a partnership deed specifically says that it is \'at will’, it need not be so if contrary intention is revealed or its duration can be implied from the terms/clauses. Kerala High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Menu Korah Vs Raju Korah Abraham and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>RFA 406 of 2012 and 761 of 2013 decided on 10 February 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P.B Suresh Kumar and Justice C.S Sudha.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>These appeals are against the judgment and decree in\r\nO.S.No.55/2009 dated 20.10.2011 and O.S.No.131/2009 dated 18.10.2012 on\r\nthe file of the Sub Court, Kottayam. The appellant in RFA No.406/2012 is\r\nthe plaintiff and the respondents are the defendants in O.S.No.55/2009. The\r\nappellants in RFA No.761/2013 are defendants 6 to 12 and the respondents\r\nare the plaintiff and defendants 1 to 5 and 13 in O.S.No.131/2009. Parties in\r\nthese appeals will be referred to as described before the court below. Parties\r\nin both the suits are the same. The suits deal with two different partnership\r\nfirms. However, the terms contained in both the partnership deeds are\r\nadmittedly the same. As the parties and the terms of the deeds are the same,\r\nthe appeals are being disposed of together. Both the aforesaid suits were filed\r\nby the plaintiff for dissolution of partnership and rendition of accounts.\r\nO.S.No.55/2009 was for dissolution of partnership by name ‘Anupama Theatres’ and O.S.No.131/2009 was for dissolution of the partnership by\r\nname ‘Apsara Theatres’. According to the plaintiff, the partnership business\r\nis to be conducted by the Managing Partners who have a duty to keep proper\r\naccounts and convince the other partners of the details of the accounts. They\r\nare liable to prepare the balance-sheet and share the profits with the partners\r\nin accordance with their share. This is not being done. Hence the plaintiff is\r\nnot interested in proceeding with the partnership business. So, she sent\r\nExt.A2 notice for dissolution of the partnership firms and thereafter filed the\r\naforesaid two suits. The defendants disputed the claim of the plaintiff and\r\ncontented that if the latter is desirous of retiring from the firms, she is free to\r\ndo so. In such eventuality, the plaintiff can be given her share of profits. But\r\nshe cannot insist for a dissolution of partnerships as the retirement of a\r\npartner would not result in dissolution of the same.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. In O.S.No.55/2009, the learned Principal Sub Judge,\r\nKottayam, finding that Ext.A1 partnership deed dated 10/07/2003 relating to\r\nAnupama Theatres is not one \'AT WILL’, dismissed the suit. However, the\r\nlearned Additional Sub Judge in O.S.No.131/2009 finding that Ext.A1\r\npartnership deed dated 10/07/2003 relating to Apsara Theaters is a\r\npartnership \'AT WILL’, decreed the suit. The court below in O.S.No.55/2009\r\nreferring to the various clauses in Ext.A1 with specific reference to clause (b), which deals with retirement of a partner, held the partnership to be one\r\n\'AT WILL’. The learned Additional Sub Judge in O.S.No.131/2009 on the\r\nother hand held that there is neither an express or implied provision relating\r\nto duration or determination of the partnership in the deed and that the clause\r\nrelating to retirement of a partner cannot be equated with ‘determination’\r\nwithin the meaning of Section 7 of the Partnership Act, 1932 and hence\r\nfinding that it is a partnership \'AT WILL’, proceeded to decree the suit.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Heard Sri.Mathew John, the learned counsel for the\r\nappellant in R.F.A.No.406/2012 and for respondents 1 to 7 in\r\nR.F.A.No.761/2013 ; Sri.Reji George, the learned counsel for the appellants\r\nin R.F.A.No.761/2013 and also for respondents 7 to 10 in\r\nR.F.A.No.406/2012 and Sri.Jagan Abraham M.George, the learned counsel\r\nfor additional eighth respondent in R.F.A.No.761/2013 and for additional\r\n15th respondent in R.F.A.No.406/2012.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The only point to be decided is - whether the partnership\r\nfirms referred to in Ext.A1 deeds are partnerships \'AT WILL’? The learned\r\ncounsel for defendants 6 to 12 (Appellants in R.F.A. No.761/2013) submitted\r\nthat though the deeds say that the partnerships are \'AT WILL’, a harmonious reading of the clauses in both the deeds would show that there is in fact a\r\nduration for the business, which can be implied from the terms contained\r\ntherein. The partners intended the business, which is a family business, to be\r\ncontinued till the business of owning and running cinema theatres continued\r\nto be conducted by the partners. Hence the partnership business is not one\r\n\'AT WILL’ and therefore the same cannot be terminated at the will and\r\npleasure of the plaintiff. The decisions relied on in support of the argument\r\nare – Karumuthu Thiagarajan Chettiar vs. E.M.Muthappa Chettiar [AIR\r\n1961 SC 1225]; Suresh Kumar Sanghi vs. Amrit Kumar Sanghi [AIR\r\n1982 DELHI 131]; M.O.H. Uduman vs. M.O.H. Aslum [AIR 1991 SC\r\n1020]; Anant Purushottam Athavale vs. Govind Purushottam Athavale\r\n[AIR 2005 BOMBAY 301], Ramesh Kumar vs. Smt.Latha Devi [AIR\r\n2007 MP 153] and Vishnu Chandra vs. Chandrika Prasad Agarwal [AIR\r\n1983 SC 523].\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Per contra, the learned counsel for the plaintiff in both\r\nthe suits pointed out that the specific case in the plaint that the partnerships\r\nare one ‘AT WILL’ is not only not denied/disputed by the contesting\r\ndefendants, but it is in fact admitted in their respective written statements. It was pointed out that there is no clause(s) in the deeds which either expressly\r\nor impliedly provide for a duration or determination of the partnerships and\r\nso the twin conditions contemplated under Section 7 of the Partnership Act,\r\n1932 (the Act) are not attracted in this case. It was also submitted that\r\nclauses 15 and 16 in the deeds only provide for the course to be adopted in\r\nthe event of death, insolvency or retirement of a partner. The said clauses in\r\nno way changes the character of the partnerships, which continue to be\r\npartnerships at will and hence the plaintiff has every right to seek a\r\ndissolution by sending a month’s notice to the other partners, which\r\nformality has been complied with by sending Ext.A2 notice, goes the\r\nargument of the plaintiff.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Section 43 provides that where the partnership is at will,\r\nthe firm may be dissolved by any partner giving notice in writing to all the\r\nother partners of his intention to dissolve the firm. If the partnership is not at will, Section 42 applies and Section 44 provides for dissolution by the court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Karumuthu Thaigarajan (supra) was a case in which the\r\npartners had entered into a partnership in order to carry on the business\r\nof managing agency of two mills. The partners contemplated that the\r\nmanagement should be carried on in rotation between them in four yearly\r\nperiods. It was also contemplated that the heirs of the partners would also\r\ncarry on the management in rotation. The terms of the contract of partnership\r\nshowed that it was entered into for the purpose of carrying on managing\r\nagency business. The question that arose was whether it was possible to infer\r\nfrom the contract of partnership that there was an implied term as to its\r\nduration or at any rate an implied term as to when it would determine.\r\nReference was made to Halsbury\'s Laws of England, Third Edition, Vol. 28,\r\np. 502, para 964, where it is said that where there is no express agreement to\r\ncontinue a partnership for a definite period, there may be an implied\r\nagreement to do so. Further, reference was made to Crawshay v. Maule,\r\n(1818) 1 Swans 495 : 36 ER 479 at p. 483, wherein also the same principle\r\nwas laid down thus-<i> \"The general rules of partnership are well-settled.\r\nWhere no term is expressly limited for its duration, and there is nothing in the contract to fix it, the partnership may be terminated at a moment\'s notice\r\nby either party......Without doubt, in the absence of express, there may be an\r\nimplied, contract, as to the duration of a partnership.\" </i>It was further held\r\nthat the same principle applies to a case of determination also. The contract\r\nmay expressly contain that the partnership will be determined in certain\r\ncircumstances; but even if there is no such express term, an implied term as\r\nto when the partnership will determine may be found in the contract.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The Apex Court found that the term in the contract of\r\npartnership relating to the turns to be taken by the two partners in the actual\r\nmanagement and the further term that these turns would go on even in the\r\ncase of their heirs, clearly suggested that the duration of the partnership\r\nwould be the same as the duration of the managing agency. This would not\r\nhowever mean that the partnership would become permanent. The terms of\r\nthe contract made it clear that the partnership was for the sole business of\r\ncarrying on the managing agency and therefore by necessary implication it\r\nhas to follow that the partnership would determine when the managing\r\nagency determines. On the terms of the contract, it was held that even if\r\nthere is some doubt whether any duration is implied, there could be no doubt that the contract implied that the partnership would determine when the\r\nmanaging agency terminated. In this view, it was held that the partnership\r\nwould not be a partnership at will as Section 7 of the Act makes it clear that a\r\npartnership in which there is a term as to its determination is not a\r\npartnership at will. The attention of the Apex Court was also drawn to a term\r\nin the contract which provided that either partner could withdraw from the\r\npartnership by relinquishing his right of management to the other partner.\r\nBut this however, was held, not to make the partnership one at will, for the\r\nessence of a partnership at will is that it is open to either partner to dissolve\r\nthe partnership by giving notice. Relinquishment of one partner\'s interest in\r\nfavour of the other, provided in the contract, is a different matter. It was\r\nnoticed that in the said case there were only two partners and so the\r\npartnership would come to an end as soon as one partner relinquished his\r\nright in favour of the other. The Apex Court then went on to give an\r\nillustration and referred to a situation where the partnership consisted of four\r\npartners. In such a case, in the event of one of the partners relinquishing his\r\nright in favour of the other partners, the partnership would not come to an\r\nend. This clearly would show that a term as to relinquishment of a partner\'s interest in favour of the other would not make the partnership one at will.\r\nReference was also made to the case- Abbott v. Abbott, (1936) 3 All ER 823.\r\nThat was a case where there were more than two partners and it was\r\nprovided that the retirement of a partner would not terminate the partnership\r\nand there was an option for the purchase of the retiring partner\'s share by\r\nother partners. It was held that in the said circumstances, the partnership was\r\nnot one at will and it was pointed out that only when all the partners except\r\none retired that the partnership would come to an end because there could\r\nnot be a partnership with only one partner. Therefore, it was concluded by\r\nthe Hon’ble Supreme Court that the contract in the said case disclosed a\r\npartnership, the determination of which was implied, namely, the termination\r\nof the managing agency and, hence, under Section 7 of the Act, it was not a\r\npartnership at will.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"background-color: rgb(255, 255, 0);\">10. In the light of the aforesaid principles, even if a\r\npartnership deed specifically says that the partnership is \'AT WILL’, it need\r\nnot necessarily mean that it is so, if a contrary intention is revealed from the\r\nterms/clauses in the deed or if its duration can be implied.</span> Having\r\nunderstood the law on the point, now the question to be considered is whether from the terms contained in Ext. A1 deeds any duration can be\r\nimplied?<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>It is true as pointed out by the learned counsel for the plaintiff that the case\r\nput forward in the plaints that the partnerships are ‘AT WILL’ is not disputed\r\nby the contesting defendants. On the other hand, they also admit it to be so.\r\nThe learned counsel for defendants 6 to 12 submitted that the said admission is only a mistake and that the said question being a question of law, the\r\nadmission made is immaterial. It is also true that the deeds describe the\r\npartnerships to be \'AT WILL’. Now if the partners intended the partnerships\r\nto be \'AT WILL’, there was no necessity for incorporating clauses 15 and 16\r\nreferred to herein above. As held by the Hon\'ble Supreme Court in M.O.H.\r\nUduman (supra) a contract of partnership must be read as a whole and the\r\nintention of the parties must be gathered from the language used in the same\r\nby adopting a harmonious construction of all the clauses contained therein.\r\nThe cardinal principle is to ascertain the intention of the parties to the\r\ncontract through the words they have used, which are key to open the mind\r\nof the makers. As has been further held, a technical or pedantic rule of\r\nconstruction should not be adopted and the guiding rule really is to ascertain\r\nthe natural and ordinary sensible meaning to the language through which the\r\nparties have expressed themselves, unless the meaning leads to an absurdity</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. As noticed, it is true that clause (3) in both the deeds say\r\nthat the partnerships are \'AT WILL’. If that clause alone is taken into\r\nconsideration and an interpretation given, clauses 15 and 16 in the\r\npartnership deeds would be rendered nugatory. Clause 14 says that any&nbsp; partner may retire from the partnership after giving a month’s notice in\r\nwriting to the other partners. Clause 15 is quite clear on the point that death,\r\nretirement or insolvency of a partner would not dissolve the partnership\r\nfirms. The remaining partners have been given the option of continuing with\r\nthe business by admitting a representative of the legal heirs of the deceased\r\npartner. The course to be adopted in the eventualities referred to in clause 15\r\nhave been clearly specified in sub-clauses (a) and (b) of clause 16. Sub\r\nclause (a) describes how the share of a deceased or insolvent partner is to be\r\ndealt with. Sub clause (b) of clause 16 says that in the event of a partner\r\nopting to retire from the partnership, he shall sell his/her share to any other\r\npartner(s) individually or jointly and the said share would be settled as\r\nprovided in Sub clause (a). Therefore, it is clear that death, retirement or\r\ninsolvency would not put the partnerships to an end. On the other-hand it\r\nwould continue. It is also to be noted that the plaintiff and her son came into\r\nthe partnership business on the death of their predecessor- in- interest,\r\nnamely, Thomas Korah, the husband of the plaintiff and the father of her\r\nson. At that time also, the firms were only re-constituted. The aforesaid\r\nclauses make it clear that the partners never intended the partnership&nbsp; business to be dissolved on the death, retirement or insolvency of a partner.\r\nOn the other hand, a harmonious reading of all the aforesaid clauses would\r\nshow that the intention of the partners was to continue the partnerships till\r\nthe business referred to in clause (2) of the deeds was carried on. Admittedly,\r\nboth the businesses are still continuing. Therefore, the duration or term of\r\nthe partnerships can be implied from a harmonious reading of all the\r\naforesaid clauses and the partnerships would come to an end when the\r\nbusiness referred to in clause (2) is stopped or discontinued. That being the\r\nposition, the partnerships in question cannot be one \'AT WILL’. Hence, the\r\nplaintiff cannot dissolve the partnership at her will and pleasure. As noticed\r\nearlier, as per clause (14) she can retire from the partnership business after\r\ngiving one month’s prior notice in writing to the other partners and as per\r\nsub- clause (b) of clause 16 she has to sell her share to any other partner\r\nindividually or jointly and then her share would be settled as provided in\r\nsub-clause (a). So, the remedy open to the plaintiff is only to seek for\r\nrendition of accounts. Defendants 6 to 12 in O.S.131/2009 (appellants in\r\nRFA 761/2013) submitted that they have no objection to relief (b) sought for\r\nin both suits. However, the plaintiff is not amenable to the said suggestion&nbsp; and insisted for a decree for dissolution of the two partnerships. It was\r\nsubmitted that the grievance of the plaintiff would be redressed only by such\r\na decree because only then the assets of the firms would be brought for\r\npublic auction by which she would get her legitimate share in the businesses.\r\nOtherwise, the valuation undertaken would merely be a paper valuation\r\nresulting in great loss to the plaintiff. As we have already found that the\r\npartnerships are not “AT WILL’, the prayer for dissolution cannot be\r\nallowed. However, the interest of the plaintiff too needs to be protected and\r\nhence to avoid the contingency pointed out on her behalf, we direct that the\r\nplaintiff be given the liberty to choose a valuer of her choice for the purpose\r\nof assessing the value of the assets of the two partnership firms.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. In the light of the above discussion, a decree allowing\r\nprayer (b) for rendition of accounts alone can be allowed. To that extent the\r\njudgment and decree in both the suits require to be interfered with. The\r\nshare of the plaintiff is not disputed and so the same will be computed as\r\nprovided in clause 16(a) of Ext. A1 deeds. The judgment and decree\r\ndismissing O.S.No.55/2009 is set aside and the suit is partly decreed. A\r\npreliminary decree is passed directing the taking o account of the credits, property, effects and account of the debts and liabilities of the partnership by\r\nname ‘Anupama Theatres’. The assets, profits and liabilities be allotted to\r\nthe plaintiff in proportion to her share in the business. An expert\r\ncommissioner shall be appointed for the purpose of examination, rendition\r\nand adjustments of the accounts. The valuer to be appointed for assessing the\r\nvalue of the assets will be as per the choice of the plaintiff alone. The parties\r\nare at liberty to move the court concerned for passing a final decree.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. The judgment and decree in O.S.No.131/2009 are\r\nmodified and the suit dismissed as far as prayer (a) seeking the relief of\r\ndissolution of the firm is concerned and the suit is partly decreed by which\r\nprayer (b) alone stands allowed. The share of the plaintiff is not disputed and\r\nso the same will be computed as provided in clause 16(a) of Ext. A1 deed. A\r\npreliminary decree is passed directing the taking of account of the credits,\r\nproperty, effects and account of the debts and liabilities of the partnership by\r\nname ‘Apsara Theatres’. The assets, profits and liabilities be allotted to the\r\nplaintiff in proportion to her share in the business. An expert commissioner\r\nshall be appointed for the purpose of examination, rendition and adjustments\r\nof the accounts. The valuer to be appointed for assessing the value of the assets will be as per the choice of the plaintiff alone. The parties are at liberty\r\nto move the court concerned for passing a final decree.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In the result, both the Appeals are allowed to the extent stated in\r\nparagraphs 12 and 13. Parties shall suffer their respective costs.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Interlocutory applications, if any pending, shall stand disposed\r\nof.</b></span></p>', '11b2a6a537ebf4228cc51cece6a99538.jpeg', '41a3ae5ec3eebbc9226657edb7173bd2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-19', 1, '', '', '2022-03-19 18:54:37', '2022-03-20 05:53:56'),
(1443, '8h07KB8PcJbDdbCRnDil7P1pM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Police can NOT conduct preliminary enquiry when information disclosing commission of cognizable offence is received. Police can initiate such enquiry only after registering FIR. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ganesh S Hedge Vs The State of Karnataka and Others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 100746 of 2022 decided on 8 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. The petitioner is before this Court, seeking for the following reliefs:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space: pre;\">	</span>Issue a writ of mandamus and direct the respondent No.2. to consider the representation of the petitioner dated 01.02.2022 vide Annexure-E to the writ petition and also direct the 3rd respondent to register FIR in pursuance of a complaint submitted by the petitioner on 20.01.2022 vide Annexure-D to the writ petition as it is illegal and unconstitutional.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space: pre;\">	</span>Issue a writ, mandamus, direction or declaration or pass such other orders as this Hon’ble Court deems fit under the facts and circumstances of the case, to meet the ends of justice.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 2. The grievance of the petitioner is that, the petitioner on 20.01.2022, at about 10.00 a.m. on account of his sister and her husband having entered the property of the petitioner with 30 gunda elements and removed the standing Areka Nut crop by force and threatened. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. The petitioner immediately called the respondent No.4 over telephone however no action was taken. Despite the first information having been provided, no complaint was registered. Hence, the petitioner called the police helpline No.112 and informed about the non-cooperation of the 4th respondent and for registration of FIR, despite which no action has been taken. Subsequently, the petitioner approached respondent No.3 the Deputy Superintendent of Police, requesting him to initiate action. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. The Deputy Superintendent of Police had directed the 4th respondent Inspector of Police to take action despite which the 4th respondent has not registered a complaint, but called upon the petitioner and his sister to come to the Police Station along with the documents relating to the property for the purpose of enquiry. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. It is on the above basis, the petitioner is before this Court contending that, the respondents have not registered an FIR in pursuance of first information provided by the petitioner and therefore, his rights have been violated so also the procedure  prescribed by the Apex Court in the case of Lalita Kumari Vs. Government of Uttar Pradesh and others, reported in (2014) 2 SCC 1. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. Sri. Narayan V. Yaji, learned counsel for the petitioner would submit that, since the petitioner had informed the 4th respondent and or the Police helpline about the commission of a cognizable offence, an FIR ought to have been registered which till date has not been registered. On this ground, he submits that, the relief as sought is required to be granted. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. Sri. Shivaprabhu Hiremath, learned AGA would however submit that, there is no call received by the 4th respondent, a call was made only to the police helpline No.112, the operator had informed the person attending the emergent call in the sub- police station, who in fact had visited the spot and having found that there are some disturbance had directed the persons present there not to cause any nuisance and had asked them to attend to Police Station along with the documents of the disputed property. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. Though the petitioner’s sister attended to the enquiry along with the possession receipt and Judgment copy, the petitioner did not attend to the enquiry and as such his complaint was not registered. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. He further submits that, the petitioner directly approached the Office of the Deputy Superintendent of Police the respondent No.3, complaining about the trespass to the land when respondent No.3 forwarded the same to the respondent No.4 seeking for a report in the matter. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10. After receipt of the information from respondent No.3, despite respondent No.4 making various phone calls to the petitioner, the petitioner did not come forward or assist in the enquiry, therefore, no action has been taken, the writ petition has filed is misconceived and no relief can be granted in the present matter. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">11. These being the submissions by both the counsels, the point that would be required to be determined by this Court is <i>“Whether on information being received, either on the police helpline or directly to a police station, the concerned Officer can carryout a enquiry, requiring the complainant to attend an enquiry before registering of a complaint?”</i></font><i><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12. This aspect is no longer a res integra. The Apex Court in the case of Lalita Kumari’s case (supra) has extensively dealt with the matter and has concluded on the applicability and the procedure to be followed as also issued various directions. The same are reproduced hereunder for easy reference:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>“120. In view of the aforesaid discussion, we hold</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>120.1.<span style=\"white-space: pre;\">	</span>The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>120.2.<span style=\"white-space: pre;\">	</span>If the information received does not disclose a cognizable offence but  indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>120.3.<span style=\"white-space: pre;\">	</span>If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>120.4.<span style=\"white-space: pre;\">	</span>The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>120.5.<span style=\"white-space: pre;\">	</span>The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the. information reveals any cognizable offence.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>120.6.<span style=\"white-space: pre;\">	</span>As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(a)<span style=\"white-space: pre;\">	</span>Matrimonial disputes/family disputes</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(b)<span style=\"white-space: pre;\">	</span>Commercial offences</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(c)<span style=\"white-space: pre;\">	</span>Medical negligence cases</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(d)<span style=\"white-space: pre;\">	</span>Corruption cases</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(e)<span style=\"white-space: pre;\">	</span>Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months\' delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>120.7.<span style=\"white-space: pre;\">	</span>While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time- bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>120.8.<span style=\"white-space: pre;\">	</span>Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.”</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13. A perusal of the above indicates that, whenever any information is received disclosing a commission of a cognizable offence, there is no preliminary enquiry which is permissible and FIR is required to be registered by the person receiving information. It is only when the information received does not disclose a cognizable offence, a preliminary enquiry could be conducted to ascertain if there is a cognizable offence committed or not. If the enquiry discloses the commission of a cognizable offence an FIR must be registered. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14. These being the categorical findings of the Apex Court, applying the same to the present case, there was a call alleged to have been made by the petitioner to the respondent No.4 complaining about the trespass by his sister, her husband and 30 gunda elements into his property and the removal of the standing Areka Nut crop in the said property. This aspect is denied by the respondents. However, it is admitted that there was a call made to the police helpline Number on “112”, informing the said police helpline about the trespass and removal of Areka Nut.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15. Once, such an information has been provided by any citizen to the police helpline or to the police station and that information discloses the commission of a cognizable offence as in this case, inasmuch as the trespass into the property of the petitioner and removal of Areka Nut is a cognizable offence in terms of Sections 441 and 427 of the Indian Penal code. The information disclosing the offence ex facie being cognizable there was no enquiry which was required to be conducted as sought to be contended by the learned AGA. The decision of the Apex Court in the case of Lalita Kumari (supra) is very clear.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16. The Apex Court has also stated that in the event of a Police officer not registering the offence when a cognizable offence is disclosed, action must be taken against the erring officials, who do not register an FIR. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17. In the aforesaid circumstances and on the basis of the aforesaid reasoning, I pass the following: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> (a)<span style=\"white-space:pre\">	</span>A Mandamus is issued, directing the respondent No.2 to consider the representation of the petitioner dated 01.02.2022 and register the FIR in pursuance of the complaint submitted by the petitioner on 20.01.2022 and thereafter investigate the matter.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(b)<span style=\"white-space:pre\">	</span>The Superintendent of Police, Uttara Kannada District is directed to enquire into the matter and take suitable action against the respondent No.4 for violation of the directions issued by the Apex Court in the case of Lalita Kumari (supra) and submit a report to this Court, within a period of eight weeks from today. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(c)<span style=\"white-space:pre\">	</span>With the above observation, the writ petition stands allowed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd2e9e16fbf6b47b8ff8f155f1f4887d1.jpeg', '31fafffdfaf6a4087af38cb22f334e4e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-19', 1, '', '', '2022-03-19 19:16:01', '2022-03-20 08:46:29');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1444, 'cQAoYDxQSrPuVC91P3bz47U05', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Section 482. When chances of an ultimate conviction are bleak, Court must exercise power to quash criminal proceedings. Kerala High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Biju K. Peter vs State of Kerala and Others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.MC 7386 of 2018 and CRL.RP 1708 of 2018 decided on 14 January 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sophy Thomas.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Above Crl.R.P has been filed by the accused persons\r\n(eight in number) in C.M.P No.174 of 2016 of JFCM,\r\nKolenchery, under Section 401 of Cr.P.C to set aside the\r\nimpugned order of taking cognizance and issuing summons,\r\nand to dismiss the same with costs.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioners\' case in short is as follows:\r\nThey belong to Kunnathu family and they are age old and\r\nsick and they are well reputed persons in that locality.\r\nOn 26.02.2016, the 2nd respondent filed a private\r\ncomplaint against the petitioners, alleging that on  02.12.2015 they trespassed into the cemetery of St.Peters\r\nand St.Pauls Church, Kolenchery, destroyed tombstones\r\nfixed in the tomb of his family members causing damages\r\nto the tune of Rs.10,000/-.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The cemetery belongs to St.Peters and St.Pauls\r\nChurch and more than 130 members of petitioners\' family\r\nare members of that Parish. A specific area is there in\r\nthe cemetery of the Church, where tombs of petitioners\'\r\nfamily is situated. In fact the 2nd respondent damaged a\r\nportion of the petitioners\' family tombs, for which they\r\nhave filed O.S No.77 of 2015 before Munsiff Court,\r\nKolenchery seeking a decree of permanent prohibitory\r\ninjunction and such other reliefs. The Advocate\r\nCommissioner visited the suit property twice and filed\r\nreports. Only to bypass the situation and to defend the\r\ncivil case, after a lapse of more than two months, 2nd\r\nrespondent filed a private complaint against these\r\npetitioners, who are senior citizens retired from esponsible posts and ailing from various illnesses. The\r\ncase is purely civil in nature. There is nothing to prove\r\nthe ingredients of Sections 427 and 379 of IPC as against\r\nthese petitioners. The Church in question was closed for\r\nlong and it is under the custody and surveillance of\r\nPolice. So, the offence as alleged was not possible or\r\nprobable. The 2nd respondent has no locus standi to file\r\nthis complaint. Since the petitioner are age old and\r\nsick, there is no possibility for them to travel long\r\ndistance to reach the cemetery and to destroy the\r\ntombstones fixed in the tombs of respondent-family\r\nmembers. The learned Magistrate without considering the\r\nreal state of affairs simply took cognizance against the\r\npetitioners under Sections 427 and 379 of IPC and hence\r\nit is liable to be set aside.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The 2nd petitioner in Crl.R.P 1708 of 2018 filed\r\nCrl.M.C.No.7386 of 2018 under Section 482 of Cr.P.C to\r\nquash the proceedings in C.M.P No.174 of 2016, invoking inherent power of this Court. Since the very same\r\npetitioner is the 2nd petitioner inneed not be dealt with separately.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Heard learned counsel for the petitioners, 2nd\r\nrespondent and also the learned Public Prosecutor.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. In this Crl.R.P, this Court is asked to exercise\r\nits revisional powers under Section 401 of Cr.P.C to set\r\naside the order in C.M.P 174 of 2016 of JFCM, Kolenchery.\r\nAccording to the petitioners, they are age old and sick,\r\nand retired from respectable posts, and there was no\r\nprobability for them to reach the cemetery of St.Pauls\r\nand St. Peters Church, Kolenchery to remove the\r\ntombstones from the tombs of the family members of the 2nd\r\nrespondent. According to them, on 07.12.2015, the 2nd\r\nrespondent assaulted the 8th petitioner Sri.Roy Thomas and\r\na criminal case was registered against him as Crime\r\nNo.140 of 2016. On 08.12.2016, the 2nd respondent\r\ndestroyed the family tombs of the petitioners namely Kunnathu family. Since the dispute was civil in nature,\r\nthey filed O.S No.77 of 2015 against the 2nd respondent\r\nand two others, for injunction and other consequential\r\nreliefs. The 2nd respondent alleging destruction of\r\ntombstones of his family members, filed O.S No.6 of 2016\r\nagainst these petitioners and both suits were tried\r\ntogether and O.S No.77 of 2017 was decreed and O.S No.6\r\nof 2016 was dismissed. In O.S No.77 of 2017, the\r\nCommissioner inspected the cemetery on 17.12.2015 with\r\nnotice to the 2nd respondent, and filed report noting\r\ndamages caused to the family tomb of the petitioners.\r\nC.M.P No.174 of 2016 was filed by the 2nd respondent\r\nalleging destruction and removal of tombstones from his\r\nfamily tomb, on 02.12.2015. If it was so, when the\r\nCommissioner inspected the property on 17.12.2015 after\r\ngiving notice to him, he should have brought that fact to\r\nthe notice of the Commissioner. But, nothing was reported\r\nby the Commissioner in the report dated 17.12.2015 regarding destruction or removal of tombstones from the\r\nfamily tomb of the 2nd respondent. Very same Commissioner\r\ninspected the property on 01.01.2016 on the request of\r\nthe defendants. In that report the Commissioner has\r\nreported that two tombstones were seen removed and it was\r\nlying on the floor.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. In the order of the learned Magistrate taking\r\ncognizance against these petitioners it is stated that no\r\nprima facie evidence is there to attract the offences\r\nalleged under Sections 153, 295A, 297 and 120B, but there\r\nis prima facie evidence to attract offences punishable\r\nunder Sections 427 and 379 of IPC against the accused and\r\nso, cognizance was taken against them for those offences\r\nand summons was ordered. On going through the statement\r\nof witnesses recorded during Sec.202 enquiry, CW2 stated\r\nthat on 02.12.2015, three persons entered the symmetry\r\nand destroyed the tombstones. CW3 stated that the workers\r\nof Kunnathu family removed the tombstones. The 2nd respondent/complainant stated that the accused persons\r\nusing pick-axe, iron bar etc. removed the tombstones,\r\ncausing loss of Rs.10,000/-.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The petitioners pointed out before Court that 4th\r\npetitioner and 5th petitioner were aged more than 80, 1st\r\npetitioner was 74, and petitioners 3 and 8 were senior\r\ncitizens. They produced medical records to show that the\r\n1st petitioner and 5th petitioner were Cardiac patients and\r\n3rd petitioner was suffering from Benign Prostatic\r\nHypertrophy, Bulbar Uretheral Stricture, Diabetes\r\nMellitus, Astma etc. According to them, the petitioners\r\nwere holding responsible posts and after retirement due\r\nto old age and ailments they were taking rest at their\r\nrespective houses, and by filing a false complaint, the\r\n2nd respondent dragged them into court.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. None of the witnesses including the complainant\r\nspoke about the presence of any of the petitioners in\r\nthe scene of the occurrence, or about the overtacts if any committed by them. According to them, since the\r\npetitioners filed Civil case against the second\r\nrespondent and others for damaging the family tomb of\r\nKunnathu family, after a lapse of about 2 months, second\r\nrespondent filed a false complaint implicating\r\nrespectable elders of Kunnathu family, without any\r\nfactual basis.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Learned counsel for the petitioners contended\r\nthat without realsing the materials and facts in its\r\ncorrect perspective, learned Magistrate took cognizance\r\nof the offence and issued summons against the\r\npetitioners. Relying on a decision of the Apex Court in\r\nM/S. Pepsi Foods Ltd. & Anr v. Special Judicial\r\nMagistrate & Ors. (1998 KHC 1055), the petitioners would\r\ncontend that “<i>Summoning of an accused in a criminal case\r\nis a serious matter. Criminal law cannot be set into\r\nmotion as a matter of course. it is not that the\r\ncomplainant has to bring only two witnesses to support his allegations in the complaint, to have the criminal\r\nlaw set into motion. The order of the magistrate\r\nsummoning the accused must reflect that he has applied\r\nhis mind to the facts of the case and the law applicable\r\nthereto. He has to examine the nature of allegations made\r\nin the complaint and the evidence both oral and\r\ndocumentary in support thereof, and would that be\r\nsufficient for the complainant to succeed in bringing\r\ncharge home to the accused. It is not that the Magistrate\r\nis a silent spectator at the time of recording of\r\npreliminary evidence before summoning of the accused.\r\nMagistrate has to carefully scrutinise the evidence\r\nbrought on record and may even himself put questions to\r\nthe complainant and his witnesses to elicit answers to\r\nfind out the truthfulness of the allegations or otherwise\r\nand then examine if any offence is prima facie committed\r\nby all or any of the accused ”.</i>\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. The learned counsel for the petitioners pointed out that the impugned order will not say who all\r\ncommitted the offences alleged, how they committed, or\r\nthe manner in which they committed the offences. Even\r\nwhen the witnesses examined did not utter a word\r\nregarding the physical presence of these petitioners at\r\nthe scene of crime, learned magistrate decided to proceed\r\nagainst them. Obviously he did not apply his mind before\r\ntaking cognizance and issuing summons against the\r\npetitioners.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. The petitioners relied upon another decision of\r\nthe Apex Court Mehmood Ul Rehman vs Khazir Mohammad Tunda\r\nand Ors. [2015 KHC 2763] to say that the Magistrate is\r\nnot expected to act as a post office in taking cognizance\r\nof each and every complaint filed before him, and issue\r\nprocess as a matter of course. There must be sufficient\r\nindication in the order passed by the Magistrate that he\r\nis satisfied that the allegations in the complaint\r\nconstitute an offence, and when considered along with he statements recorded, and the result of the enquiry\r\nor report of investigation under section 202 of Cr.P.C if\r\nany the accused is answerable before the Criminal Court,\r\nand there is ground for proceeding against the accused\r\nunder Section 204 of Cr.P.C by issuing process for\r\nappearance.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\" style=\"background-color: rgb(255, 255, 0);\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\" style=\"background-color: rgb(255, 255, 0);\"><b>13. The legal position is well-settled that, when a\r\nprosecution at the initial stage is asked to be quashed,\r\nthe test to be applied by the court is, as to whether the\r\nuncontroverted allegations as made, prima facie establish\r\nthe offence. It is also for the court to take into\r\nconsideration any special features which appear in a\r\nparticular case to consider whether it is expedient and\r\nin the interest of justice, to permit a prosecution to\r\ncontinue. This is so, on the basis that the Court cannot\r\nbe utilised for any oblique purpose, and where, in the\r\nopinion of the Court, chances of an ultimate conviction\r\nare bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue.\r\n{see Madhavrao Jiwajirao Scindia & Others v. Sambhajirao\r\nChandrojirao Angre and Ors. (AIR 1988 SC 709) and Sarala\r\nP.U. v. Gopi and Another [2019 (3) KHC 424]}\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. Learned counsel for the petitioners submitted\r\nthat without establishing any prima faice case against\r\nthe petitioners, cognizance was taken and summons was\r\nissued against them. They were all age old and\r\nrespectable members of Kunnathu family, leading retired\r\nlife and ailing from various illnesses. Pending petitioners 1 and 4 died as submitted by them. So in the\r\nabsence of prima facie evidence to prove their\r\ninvolvement in an offence like 427 and 379 of IPC, the\r\nchances of a conviction is bleak and so no useful purpose\r\nwill be served by allowing the criminal prosecution to\r\ncontinue against them.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. Going by the complaint filed by the second\r\nrespondent, the alleged incident occurred on 02.12.2015, he filed that complaint only on 26.02.2016. The delay of\r\nabout 3 months is not at all explained by the second\r\nrespondent. Moreover the petitioners had filed O.S.No.77\r\nof 2015 against the second respondent and others, for\r\ndestroying the tomb of Kunnathu family, and a commission\r\nwas also taken out, who examined the disputed cemetery on\r\n17.12.2015. So only to escape from that Civil case, it\r\nseems, the second respondent filed a criminal complaint\r\nagainst senior members of Kunnathu family, much after the\r\nCivil case, as an after thought.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. The petitioners produced copy of common judgment\r\nin O.S.No.77 of 2015 and O.S.No.6 of 2016, which will\r\nshow that one Mr.Paul and Thampi Jonson filed O.S.No.6 of\r\n2016 against Kunnath Kudumbayogam and some of the\r\npetitioners herein. Crime No.1494 of 2015 was registered\r\nagainst the second respondent herein for assaulting one\r\nMr.George Thomas, Kunnathu house on 07.12.2015 in the\r\nsteps leading to the cemetery. O.S.No.77 of 2015 was  filed by the petitioners on 16.12.2015. Much after the\r\ninstitution of the civil suit by the petitioners, the\r\ncomplaint was filed by the second respondent before the\r\nJFCM, Kolenchery. The fact that a civil suit was filed\r\nfrom the side of the 2nd respondent also, on the same set\r\nof facts alleged in the criminal compliant, is sufficient\r\nto hold that the dispute is essentially civil in nature.\r\nThe allegation is that the petitioners committed mischief\r\nby destroying and removing the tombstones in the\r\ncemetery. Admittedly the cemetery belongs to the Church,\r\nand either the petitioners or the respondent have no\r\nproprietary right over that land, except to perform the\r\nfuneral rites and prayers. If any tortious act has been\r\ncommitted by either party, their remedy is to get\r\ncompensation for the same, and both parties have\r\nexercised that right by filing civil cases against each\r\nother. The suit filed by the petitioners was decreed, and\r\nthe suit filed from the side of the respondent was  dismissed. In order to ascertain the bona fides of the\r\ncomplainant the High Court can examine whether a matter\r\nwhich is essentially civil in nature has been given the\r\ncloak of a criminal offence. On going through the entire\r\nfacts and materials available, the ingredients required\r\nto constitute a criminal offence is not made out against\r\nthe petitioners. Even their presence at the scene of\r\noccurrence is not brought out through the enquiry\r\nconducted by the learned magistrate. So the continuation\r\nof the criminal proceedings against these petitioners\r\nwill be nothing but an abuse of process of court. So,\r\nthis Court is inclined to allow the revision petition,\r\nsetting aside the impugned order of taking cognizance and\r\nissuing summons against these petitioners.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. The second petitioner in to quash the\r\nproceedings in CMP.No.174 of 2016 of JFCM Kolenchery\r\ninvoking the inherent powers of this Court under Section 482 of Cr.P.C. Since, he has joined the Crl.R.P for\r\nsetting aside the order in CMP.No.174 of 2016, invoking\r\nthe revisional powers of this Court under Section 401 of\r\nCr.P.C. no separate relief need be granted in the\r\nCrl.M.C. Since, taking cognizance and issuing summons\r\nunder Section 204 of Cr.P.C is not an interlocutory\r\norder, is amenable to the revisional jurisdiction of the\r\nHigh Court. The respondents also do not have a case that\r\nthe order in CMP.No.174 of 2016, taking cognizance and\r\nissuing summons against the petitioners is an\r\ninterlocutory order to which the bar under Section 397\r\n(2) of Cr.P.C applies. In Rajendra Kumar Sitaram Pande &\r\nOrs. v. Uttam & Another [1999 (3) SCC 134], the Apex\r\nCourt held that, order of the Magistrate taking\r\ncognizance and issuance of process is not an\r\ninterlocutory order and therefore, it is amenable to\r\nrevisional jurisdiction. Since, the petitioner in for setting aside the order in CMP.No.174 of 2016,\r\nthe Crl.M.C is closed, as no separate relief is to be\r\ngranted in that petition.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Accordingly, Crl.M.C.No.7386 of 2018 is closed and\r\nCrl.R.P.No.1708 of 2018 is allowed, setting aside the\r\nimpugned order in CMP.No.174 of 2016 on the file of JFCM,\r\nKolenchery. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioners are set at liberty cancelling\r\ntheir bail bonds. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '20656ccf4991b920fc57c0a28b9f9d77.jpeg', 'e8a918c214512985fed5f9f4355dbd44.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-21', 1, '', '', '2022-03-19 19:41:20', '2022-03-21 17:27:29'),
(1451, 'mGbkcGWJk4PcVsMYQ05PJsnc9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Specific Relief Act.Unilateral cancellation of agreement to sell is impermissible in law except where agreement is determinable under Section 14. Such cancellation cannot be raised as defence in a suit for specific performance.Punjab & Haryana High Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Brahm Dutt Vs Sarabjit Singh.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>RSA 2943 of 2017 decided on 6 November 2017.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Rajbir Sehrawat.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This is a second appeal filed by the defendant challenging the\r\njudgments and decrees passed by the Courts below, whereby the suit of the\r\nplaintiff of specific performance has been decreed. For the convenience the\r\nparties would be referred herein as the plaintiff and the defendant as were\r\ndescribed in the original suit.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The brief facts of the case are that the suit was filed by the\r\nplaintiff claiming that the defendant had entered into an agreement dated\r\n14.02.2011 with him in for sale of a house, as detailed in the head note in\r\nthe plaint, measuring 23 marlas. The sale consideration was fixed at Rs.\r\n40,50,000/-. Out of that Rs.10,00,000/- were received by the defendant as\r\nearnest money. The target date for the execution of the sale deed was fixed\r\nas 20.04.2012. It was further claimed that on 20.04.2012 the plaintiff\r\nremained present in the office of the Sub Registrar, Gurdaspur; along with\r\nthe balance sale consideration. However, the defendant did not reach there,\r\nto execute the sale deed. Resultantly, on the target date, the sale deed could not be executed. It is further pleaded by the plaintiff that thereafter, he sent\r\na legal notice dated 30.04.2012 informing the defendant that he could come\r\nto the office of the Sub-Registrar on 10.05.2012 for execution of the sale\r\ndeed. However, again on this date, the defendant did not turn up. Therefore,\r\nthe plaintiff filed the suit.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>On notice, the defendant filed written statement taking routine\r\npreliminary objections. However, on merits it was claimed by the defendant\r\nthat he had sent a legal notice dated 17.04.2012 informing the plaintiff that\r\nthe agreement in question was not intended to be an agreement to sell and\r\nthat this was signed only as a security for repayment of the amount which,\r\naccording to the defendant, was taken as a loan @ 2% per month.\r\nTherefore, the defendant claims that this legal notice would tantamount to\r\ntermination of the agreement. Still further, the defendant denied the\r\npleading of the plaintiff that the agreement was intended to be an agreement\r\nto sell. However, the receipt of Rs.10 lac was admitted in written statement\r\nitself. Still further, the signatures on the agreement was also admitted. Still\r\nfurther, the defendant claimed the hardship to him, in case a decree of\r\nspecific performance is passed in the suit.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Parties led their respective evidence.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>To prove the agreement to sell, the plaintiff examined the\r\nattesting witnesses PW-2 Ranjodh Singh and the scribe of the agreement\r\nRavi Kant Rehanil, Advocate as PW-3. Still further, Sh. Manjit Singh was\r\nexamined as PW-4 who is also one of the attesting witness.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>On the other hand, the defendant examined himself as DW-1\r\nand also examined Gurjeet Singh as DW-2 to substantiate his plea regarding\r\nthe agreement; being document of security for the repayment of the loan. After hearing the parties and appreciating the evidence, the trial\r\nCourt decreed the suit filed by the plaintiff. The trial Court recorded the\r\nfinding that the witnesses examined by the plaintiff have duly proved the\r\nexecution of the agreement in question. Still further, the trial Court\r\nrecorded the finding that the legal notice dated 30th April 2012 Ex. P-5 and\r\nits postal receipt ExP-6 also stands proved. To show his readiness and\r\nwillingness, Ex-P-7 is also proved on record, to show that the plaintiff\r\nremained in the office of Sub-Registrar, Gurdaspur on 10.05.2012 along\r\nwith the balance sale consideration.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The trial Court also held that the onus to prove that the\r\nagreement to sell in question was not intended to be an agreement for\r\ntransfer of the property, rather, it was intended to be executed as a security\r\nfor repayment of loan amount taken by him, was upon the defendant.\r\nHowever, he has failed to prove his plea regarding the agreement being a\r\ndocument of security for repayment of loan. The only witness examined by\r\nhim, DW-2 has admitted in cross-examination that he was not even present\r\nat the time of the execution of the agreement in question. Hence, the trial\r\nCourt held that the agreement to sell stands proved as per the requirement of\r\nlaw. The defendant has not been able to extract anything from any of the\r\nwitnesses of plaintiff to show that the agreement was intended to be a\r\nsecurity document for repayment of the loan.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Aggrieved of this judgment and decree, the defendant filed an\r\nappeal before the lower Appellate Court. However, the lower Appellate\r\nCourt also dismissed the appeal filed by the defendant.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>While dismissing the appeal filed by the defendant, the lower\r\nAppellate Court also upheld the finding recorded by the trial Court that by\r\nexamining the attesting witnesses, the plaintiff has proved the agreement to sell in question. The lower Appellate Court also recorded a finding that the\r\ndefendant has failed to prove his plea regarding the agreement in question\r\nbeing a security document for repayment of the loan, which the defendant\r\nclaims to have taken at the interest rate of 2% per month.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Aggrieved against the judgement and decree the present appeal\r\nhas been filed by the defendant.\r\nWhile arguing the case, the learned Senior counsel for the\r\ndefendant/appellant has submitted that the lower Appellate Court has gone\r\nwrong in law, in so far as it has not even dealt with the evidence pertaining\r\nto the legal notice sent by defendant on 17.04.2012 (Ex.D-1), whereby he\r\nhad terminated the agreement in question. Therefore, the finding recorded\r\nby the lower Appellate Court are incomplete, if not perverse. Still further,\r\nlearned counsel for the defendant has argued that once the agreement stands\r\nterminated, then unless the same is challenged by the plaintiff and a\r\ndeclaration of termination as illegal is sought by him and granted by the\r\nCourt, he cannot file a suit for specific performance. To support his\r\nargument, learned counsel relies upon the judgment of the Hon\'ble Supreme\r\nCourt rendered in 2013 (15) SCC 27 titled as I.S. Sikandar (D) by LRs. vs.\r\nK. Subramani and Ors.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>To buttress his plea regarding the termination of the agreement,\r\nthe counsel submits that he had put suggestions to the witnesses as well as\r\nto the plaintiff in this regard. Therefore, this should be construed that this\r\nplea has been duly raised and argued before the Court. The next argument\r\nof the learned counsel for the appellant is that he is having only one house\r\nand if even this is given to the plaintiff by way of specific performance, this\r\nwould cause undue hardship to the defendant. Therefore, the counsel prays\r\nthat Section 20 of the Specific Relief Act should be resorted to, and the plaintiff should be granted the alternate relief of return of money, as has\r\nbeen claimed also by him in his plaint. Further the counsel submits that the\r\nagreement was only a security document for repayment of loan.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Heard the learned counsel for the parties.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>After hearing the counsel for the parties and perusing the\r\nrecord, with the able assistance of the counsel for the parties, this Court is\r\nof the considered opinion that the argument raised by the\r\ndefendant/appellant do not deserve acceptance. The agreement in question\r\nhas been duly proved by the plaintiff by examining the attesting witnesses\r\nas well as the scribes. The plaintiff could have done only this much to\r\nprove his claim before the Court to show that it was an agreement, intended\r\nto be as it has been recorded. This onus, he has fully discharged. Even the\r\ncounsel for the appellant/defendant could not dispute this fact that he has\r\nbeen able to prove the agreement by examining the attesting witness. To\r\nprove the plea that the agreement was meant to be a document of security of\r\nloan which he had taken at the rate of 2% per month the defendant has not\r\nled any evidence. He has not disclosed even the purpose for which he\r\nrequired this loan. On the contrary he has admitted that the amount of Rs.10\r\nlacs taken by him from the plaintiff was lying in the Saving Bank Account\r\nof the defendant. He has also not led any evidence to prove that he ever\r\npaid the monthly interest to the plaintiff at the rate of 2%, as claimed by\r\nhim. So the defendant has miserably failed to prove his plea that the\r\nagreement in question was only a security document for repayment of loan\r\navailable by him.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>However, the next argument of the defendant that the\r\nagreement stands terminated, though much stressed upon by the learned\r\ncounsel, but the same is not found to be established as per the record. It has  come on record, by way of Ex.D1 that the defendant claimed to have sent a\r\nlegal notice to the plaintiff on 17.04.2012, and for that purpose even the\r\npostal receipt has been placed on record as Ex.D3 and Ex.D4. However,\r\nbesides these documents, nothing has been led in evidence to prove either\r\nthe receipt of this notice by the plaintiff or the contents of the legal notice,\r\nallegedly sent by the plaintiff. So far as the postal receipt is concerned,\r\nthere is no dispute that once postal receipt of registered letter, is proved on\r\nrecord, it is a valid proof of service upon the opposite side. However, a\r\nperusal of the receipt in the present case shows that it does not contain the\r\naddress of the addressee. It only mentions the name of the plaintiff and\r\nname of the city. This, in the opinion of this Court, would not be a proof of\r\na proper service upon the plaintiff. Possibility of there being so many\r\npersons of the same name in such a big city can not be ruled out. Hence,\r\nproduction of receipt in the present case is not the proof of the fact that this\r\nnotice has been sent by the defendant to the plaintiff. Otherwise also, the\r\nreceipt of this notice has been denied by the plaintiff. Despite the questions\r\nbeing put to the plaintiff in his cross-examination nothing could be\r\nextracted from him in the form of his admission that he ever received this\r\nnotice. Therefore the cancellation of agreement, as such, is not proved on\r\nrecord.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">However, otherwise also the defendant could not have,\r\nunilaterally, cancelled the agreement in question. <span style=\"background-color: rgb(255, 255, 0);\">Unilateral cancellation of\r\nagreement to sell by one party is not permissible in law except where the\r\nagreement is determinable in terms of Section 14 of this Specific Relief Act.\r\nSuch cancellation cannot be raised as a defence in a suit for specific\r\nperformance. If any such a plea of cancellation/termination is raised by the\r\ndefendant than the Court can just ignore this and the plaintiff need not challenge such an alleged cancellation. If such unilateral cancellation of\r\nnon-determinable agreement is permitted as a defence then virtually every\r\nsuit for specific performance can be frustrated by the defendant.</span> Therefore\r\nthe Specific Reliefs Act has made detailed provisions for this aspect. The\r\nbare perusal of the provisions of the Specific Relief Act shows that once a\r\nparty claims the right of revocation or rescission, of the agreement then such\r\na party is required to seek a declaration from the Court regarding the\r\nvalidity of revocation or rescission, as the case may be. In the present case\r\nalso, it was not the duty cast upon the plaintiff to challenge the alleged\r\ncancellation of agreement, which, otherwise also, is not proved on record. </span><span style=\"font-size: 12pt;\">On the contrary, if the defendant so claimed that he had valid reasons to\r\nterminate the contract or rescind the contract then he should have sought a\r\ndeclaration from the competent Court, as required under Sections 27 and 31\r\nof Specific Relief Act. Hence the plea of termination of agreement raised\r\nby the defendant has rightly not been accepted by the Courts below.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>So far as the judgement of the Hon\'ble Supreme Court in case\r\nof I.S. Sikandar (supra) is concerned, there is no dispute regarding the\r\nproposition laid down by the Hon\'ble Supreme Court. However, that\r\njudgement is distinguishable on the facts of the present case. In the case\r\nbefore the Hon\'ble Supreme Court, the defendant had, in fact, asked the\r\nplaintiff to make the payment of the money and to get the sale deed\r\nexecuted. On failure of the plaintiff to make the payment the agreement had\r\nbecome determinable and the defendant had terminated the contract by\r\nspecific communication. This action of the defendant was within the realm\r\nof the Contract Act, as provided under Sections 38 and 51 of the Contract\r\nAct and Section 14 of Specific Relief Act, which provides that in case of the\r\nperformance which was required of the plaintiff/promisee is refused by him then the defendant/promisor need not perform his part of the agreement. In\r\nthe present case, the appellant had not offered the performance on his part.\r\nStill further, in the present case, the termination as such has also not been\r\nproved on record, as has been held above.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>Even on the plea of hardship, the defendant could not\r\nsubstantiate his claim. The plea of hardship itself is not sustainable in the\r\npresent case. The genesis of the plea of the hardship claimed by the\r\ndefendant goes to his plea, whereby he claimed the agreement to be a\r\nsecurity document for repayment of the loan. However, as held above, the\r\ndefendant has not even disclosed as to what was the circumstance or the\r\npurposes for which he had to avail this loan. Rather he admitted that the\r\nearnest money got by him was kept in Bank account. Hence no hardship to\r\ndefendant is proved on record. Otherwise also he has come on record that\r\nno such hardship would be caused to the defendant, because it has come in\r\nhis cross-examination that he is already having another house in the same\r\ncity, where he can reside.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>No other argument was raised.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>In view of the above, the present appeal fails and the same is\r\ndismissed being devoid of any merits. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'be61af341fc78cd747b5659e230d9c14.jpeg', 'f22614364bc63ee7f0a61469b7fb6fbb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-21', 1, '', '', '2022-03-21 17:38:04', '2022-03-21 12:00:25');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1445, 'KKp8EDmF92cGCxcgYsLmzxgNC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Defendant can seek injunction against plaintiff only under Order 39 Rule 1(a). He has no right to seek such injunction under Order 39 Rule (b) and (c). Karnataka High Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Khatunabai Mahmmed Usman Alamkhanavar and others Vs Nasirkhan Abdulkhadarkhan Alamkhanavar and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 100296 of 2022 decided on 9 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. The petitioners are before this Court seeking for the following reliefs: <i>“Issue writ of certiorari quashing the impugned order passed by learned Additional Senior Civil Judge and JMFC Hangal in M.A.No.4/2021 dated 21/12/2021 vide Anneuxre-A and order passed by the learned Civil Judge and JMFC, Hangal in O.S.No.258/2018 on I.A.No.III dated 15/11/2021 vide Annexure-C allowing this writ petition.”</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 2. O.S. No.258/2018 had been filed by the petitioners herein who are the plaintiffs therein seeking for injunction restraining the defendants from interfering with the peaceful possession and occupation of the suit schedule property. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Interlocutory application No.1 had also been filed seeking for interim injunction in the same manner. The defendants upon appearance had filed I A.No.3 seeking for injunction restraining the plaintiffs from interfering with the peaceful possession and occupation of the suit schedule property of the defendants. The trial Court by its order dated 15.11.2021 allowed the said application restraining the plaintiffs from interfering with the peaceful possession and enjoyment of the suit schedule property. On a miscellaneous appeal being filed in M.A.No.4/2021, the said appeal came to be dismissed confirming the order passed by the trial court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Miss.Ranjita Alagawadi, learned counsel appearing for the petitioners would submit that in view of the decision of the Full Bench of this Court in Writ Petition No.58906/2013, the trial Court could not have considered an application for injunction filed by the defendants restraining the plaintiffs and therefore the order of the trial Court as also the confirmatory order of the First Appellate Court are bad in law and are required to be set aside. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Sri.Santosh B Mane, learned counsel for the respondents would submit that application filed by the defendants is one under Order 39 Rule 1(a) of CPC and therefore the same is exempt from application of the judgement of the Full Bench and the trial Court has rightly considered the said application and passed necessary orders. Further, he submits that the trial Court would always have powers to pass orders of injunction even where the same does not come within the purview of Order 39 Rule 1 of CPC in order to render justice and prevent abuse of process of the Court. He therefore submits that the order passed by the trial Court and the First Appellate Court being proper, this Court is not required to intercede.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Heard the learned counsels appearing for the parties. Perused the writ petition papers. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">7. The only point that would arise for determination is, whether a defendant can file an application seeking for injunction restraining the plaintiff from interfering with the alleged possession of the defendant as regards the suit schedule property?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. The Full Bench of this Court in Writ Petition No.58906/2013 has dealt with the said aspect in detail and at paragraph No.33 has held as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“33. The correct legal position as is clear can from the statutory provision is as under:</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><i><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space: pre;\">	</span>Both the plaintiff and the and the defendant can maintain an application U/o XXXIX Rule 1(a) of the Code for the reliefs set out in the said provision;</b></font></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><i><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space: pre;\">	</span>Insofar as relief under Order XXXIX Rule 1(b) and (c) is concerned, the such a relief is available only to the plaintiff and the defendant cannot maintain an application for the said reliefs in a suit filed by the plaintiff, irrespective of the fact that his right to such relief arises either from the same cause of action or a cause of action that arises subsequent to filing of the suit. However it is open to the defendant to maintain a separate suit against the plaintiff and seek relief provided under Order 39 Rule 1(b) and (c) of the Code.</b></font></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><i><b><font face=\"Calibri, sans-serif\">(iii)<span style=\"white-space: pre;\">	</span>In cases which do not fall under Order XXXIX Rule 1 of the Code, the Court has the inherent jurisdiction to grant the relief of injunction in its discretion, if it is satisfied that such an order is necessary to meet the ends of justice or to prevent abuse of process of the court and nothing in this Code shall limit or otherwise affect such inherent power of the Court. Accordingly, we answer the question of law referred to for our consideration in the negative.”</font><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. The contention of Sri.Santosh B Mane is that it is only as regards application under Order 39 Rule 1(b) and (c) of CPC that there is a bar for a defendant to maintain an application but however if an application is filed under Order 39 Rule 1(a) of CPC, defendant can maintain an application. In the present case the application is filed under Order 39 Rule 1(a) of CPC and therefore the trial Court has rightly entertained the said application. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10. Now what is to be seen by this Court is whether the application filed by the defendants is one under Order 39 Rule 1(a) of CPC or not? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. Order 39 Rule 1 of CPC reads as under: “<i>Cases in which temporary injunction may be granted.-Where  in any suit it is proved by affidavit or otherwise-</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(a)<span style=\"white-space: pre;\">	</span>that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(b)<span style=\"white-space: pre;\">	</span>that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(c)<span style=\"white-space: pre;\">	</span>that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any properly in dispute in the suit, the Court may be order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or dispossession of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until tile disposal of the suit or until further orders.”</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i><br></i>12. A perusal of the said provision would indicate that Order 39 Rule 1(a) of CPC deals with the situation where a property in dispute in a suit is in danger of being wasted, damaged or alienated by any other party to the suit. In the present case, the application which has been filed by the defendants though under Order 39 Rule 1(a) of CPC is seeking for injunction restraining the plaintiffs from interfering with the alleged possession of the defendants, the said relief ex facie would not come within the purview of Order 39 Rule 1(a) of CPC but would come under Order 39 rule 1(c) of CPC which deals with the situation where defendants threaten to dispossess the plaintiffs or otherwise cause injury to the plaintiffs in relation to any property in dispute in the suit. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13. Thus, the application though titled as one under Order 39 Rule 1(a) of CPC is actually one under Order 39 Rule 1(c) of CPC, which would make the embargo as per paragraph No.33(ii) of the Full Bench decision applicable. Merely because by clever drafting defendants were to file an application under Order 39 Rule 1(a) of CPC, the trial Court cannot consider the same and pass order for injunction restraining the plaintiffs from interfering with the possession of the defendants. The trial Court would have to independently apply its mind to ascertain as to under what provision the relief would actually fall under. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14. The other contention which has been urged by Sri.Santosh B Mane, learned counsel for the respondents is that even in cases which do not fall under the provisions of Order 39 Rule 1 of the Code, the Court would have inherent jurisdiction to grant the relief of injunction in its discretion, which has been exercised in the present case. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15. In my considered opinion, to make the said exception applicable, it would be required for a party to show and establish that the relief which is being sought for is not covered under Order 39 Rule 1(a), (b) and (c) of CPC, that would mean that the relief which is sought for is something different than that provided for in the said Order 39 Rule 1(a), (b) and (c) of CPC, that would in turn mean that the relief sought for should not be for injunction restraining alienation or injunction restraining wastage of a property or an injunction restraining removal of a property or an injunction restraining the dispossession of the property. Apart from these four aspects, if there is any other relief which is sought for which does not come within the purview of Order 39 Rule 1(a), (b) and (c) of CPC only then the inherent powers could be exercised. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16. In the present case as aforesaid the relief which is sought for is squarely covered under Order 39 Rule 1(c) of CPC and as held by the Full Bench of this Court the said provision makes available the recourse under it only to a plaintiff against a defendant and does not provide vice versa for a defendant to file an application against the plaintiff, and seek for an injunction. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17. In view thereof, the First Appellate Court as also the trial Court not having considered these aspects in a proper perspective, the said orders are unsustainable and the exercise of powers of the said Courts is without jurisdiction and as such nonest. In view thereof, I pass the following: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>a.<span style=\"white-space: pre;\">	</span>The petition is allowed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>b.<span style=\"white-space: pre;\">	</span>Order dated 15.11.2021 passed by the Civil Judge and JMFC, Hangal in O.S. No.258/2018 on I.A.No.3 is quashed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> c.<span style=\"white-space: pre;\">	</span>Order dated 21.12.2021 passed by  the Additional Senior Civil Judge and JMFC, Hangal in M.A.No.4/2021 is quashed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>d.<span style=\"white-space: pre;\">	</span>I.A.No.3 in O.S. No.258/2018 is dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">e.<span style=\"white-space: pre;\">	</span>Liberty is however reserved to the defendants to file appropriate suit, if so advised.</font></b></p>', '3925aef92bf6b705604b553e7800ecd8.jpeg', '75a9def50a98eb7e2a95a32e34501aad.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-21', 1, '', '', '2022-03-20 00:19:17', '2022-03-21 15:03:24'),
(1446, '2uEN9KpBkAZZUEXVxaPZmoH7L', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'If roster is not followed for the post of Mayor and Deputy Mayor of a local body in an election, persons belonging to that category must be accommodated in the next election. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shankargouda Vilas Patil Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 100883 of 2022 decided on 11 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. The petitioner is before this Court, seeking for the following reliefs:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) Issue writ of certiorari quashing the impugned communication dated 25.01.2022 issued by&nbsp; the 1st respondent to the 4th respondent corporation bearing No.NaAE 206 MLR 2021 (e) Vide Annexure-A.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) Issue writ of mandamus directing the respondents to abide by the reservation roster as notified under notification bearing No.UDD 24 MLR 2021, Bengaluru dated 11.02.2021 issued by the respondent No.1 vide Annexure- D. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The grievance of the petitioner is that, though vide Annexure- D the State had notified the election of Mayor and Deputy Mayor for the various categories in terms of roster for the 23rd term, Vide Annexure-A, being an internal communication between the Urban Development Department and the Administrator of the Hubli-Dharwad Municipal Corporation, Administrator of Belagavi Corporation and Administrator of Kalaburgi Corporation, the Authorities are now proposing to hold elections as per the reservation for the 21st term and thereby the notification at Annexure-D dated 11.02.2021 has been given a go bye. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The contention of Sri. Shivraj S. Balloli, learned counsel for the petitioner is that, once a notification has been issued indicating that the election will be held as per the roster for&nbsp; the 23rd term, the same cannot be changed unilaterally&nbsp; without giving an opportunity for the concerned to raise objections to the proposed change inasmuch as the elections are proposed to be held as per 21st roster. It is in that background, the elections ought to be held as per the notification already issued in terms of roster for the 23rd term. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Per contra, Smt. K. Vidyavati, learned Additional Advocate General would submit that, though the notification was \\ issued in terms of roster for the 23rd term,&nbsp; the&nbsp; elections for the 21st and 22nd term could not be held due to various litigations which were pending. Therefore, the roster system for the 21st and 22nd has not been followed and it is for this reason that, vide Annexure-A the mistake which had been made has been rectified and the&nbsp; elections are proposed&nbsp; to be held as per the roster for the 21st term. She therefore submits that, the demand of the petitioner for holding the election roster for the 23rd term cannot be accepted and is contrary to law and therefore, the writ petition is liable to be dismissed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Heard Sri. Shivraj Balloli, learned counsel for the petitioner, Smt. K.Vidyavati, learned Additional Advocate General and Sri. Shivaraj Bellakki, Advocate for R3, who adopts the submissions made by the learned AAG and Sri. Sajid Goodwala on behalf of Sri. Jagadish Patil, learned&nbsp; counsel&nbsp; for respondent No.4. Perused the papers. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The short but important question that would arise for consideration in this matter is; In the event of election for a particular term not being held as per the roster for the post of Mayor and Deputy Mayor in the City Municipal Council would those terms to be eschewed and skipped so as to hold election as per the next term for that particular year?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 7. It is a matter of fact that, the election to the 21st and 22nd term for the post of Mayor and Deputy Mayor of the Corporation of Belagavi was not held. Since the same were not held, the category wise reservation fixed for 21st and 22nd term was not achieved and the persons eligible for contesting those elections under those particular categories were not able to contest for those elections. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. In view of the same, the said persons as&nbsp; per&nbsp; those categories were not able to contest the elections and those categories were not represented in those two terms in the Belagavi Corporation. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. If the submission of Sri. Shivraj Balloli, learned&nbsp; counsel for&nbsp; the petitioner is accepted and if the elections are held as per the reservation roster for the 23rd term, then the reservation&nbsp; for the 21st and 22nd term would stand skipped and the persons belonging to those categories be deprived of their opportunity to contest those elections in those particular&nbsp; terms and would have to wait for the next term as per the roster system. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>10. The roster system has been fixed in terms of the various decisions of the Apex Court of India, as also this Court which are not required to be mentioned here, since the same is not under challenge. Suffice it to say that the roster system is fixed to provide an opportunity to the persons belonging to a particular category to represent that particular category&nbsp; for that particular term in that particular corporation.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>11. Needless to further state that, it is only a person belonging to that particular category who can contest for the post of Mayor and Deputy Mayor and a person belonging to another category cannot contest for the said post, in the particular term. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>12. As observed, in the event of the submission of Sri. Shivaraj Balloli being accepted the persons belonging to those particular categories for 21 &amp; 22 terms would be deprived of their right to contest for those elections for those particular terms. The elections were not held for the reasons beyond&nbsp; the control of those persons inasmuch as there were&nbsp; litigations filed which prevented the elections from being held and an Administrator was appointed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>13. Looked at from another angle if the elections are held as per the roster fixed for 21st term, the same would not cause any harm an injury to the persons belonging to the roster fixed for 23rd term, inasmuch as the roster to be followed after the roster for 21st term would be the roaster for 22nd term and thereafter the 23rd, 24th term and so on. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>14. It is the submission of the learned AAG that it is to facilitate the persons deprived of 21st term to participate in the election that the roster for 21st term is being given effect to, which&nbsp; shall also mean and include that subsequently the roster for 22nd term would be given effect to and in the event of any particular election not being held for any particular term, the roster for the term which has been deprived of&nbsp; would&nbsp; be given effect to. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>15. So that the roster which has been fixed and the&nbsp; category&nbsp; fixed for that particular roster would enable the persons belonging to that category in participating in the electoral process. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>16. On enquiry the learned AAG submits that, when the roaster&nbsp; for 21st term had been fixed all&nbsp; necessary&nbsp; procedure including inviting the objections, consideration of those objections. Consideration of the objection and finalization of the roster has already been followed in the 21st term. She further submits that, similar process has already&nbsp; been followed for the 22nd term and now is being followed for the 23rd term. Thus, the interest of all the concerned are&nbsp; protected by the procedure which has already been followed by the State and which is going to be followed by the State to the future terms. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>17. In the above background, I answer the point raised as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>In the event of election for a particular term not being held as per the roster for the post of Mayor and Deputy Mayor in the City Municipal Council, the said term cannot be eschewed or skipped. The election for the skipped term would have to be held next so that the persons belonging to the category for that particular term are able to contest for elections in that term. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>18. In view of the above answer, I do not find any infirmity in Annexure-A, which has been issued changing the roster system as per Annexure-D. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>19. In view of the above, I pass the following: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>ORDER </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>The writ petition is dismissed. The elections are permitted to be held in terms of Annexure-A, as per the roster for the 21st term followed by the subsequent rosters for the other terms. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>No order as to costs. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>In view of the disposal of the above matter, I.A.No.1/2022 stands disposed of.</b></span></p>', '0d5147cf77a1aae0bc1c9bed498ed8c4.jpeg', 'cf838e38fd6a4ec888895214826f25ce.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-20', 1, '', '', '2022-03-20 22:31:16', '2022-03-23 05:34:46');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1447, 'TAE6Nrfm9A9FXuoiTYBTgKXvj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Abetment to commit suicide. Simply because there is no explanation for the occurrence, needle of suspicion should not point at the accused to proceed with the trial against him. Orissa High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shantanu Priyabrata Senapati Vs State of Orissa.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRLREV 879 of 2014 decided on 8 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sashikanta Mishra.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner in the present\r\nrevision seeks to challenge the order dated 25.09.2014 passed by learned 2nd Addl. Sessions Judge, Cuttack in\r\nS.T. Case No. 435 of 2013 whereby, his application filed\r\nfor discharge from the offences under Section 493, 417\r\nand 306 IPC was rejected.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The brief facts of the case are that on\r\n04.09.2012 an FIR was lodged by one Rajalaxmi\r\nMohapatra before the IIC, Mahila Police Station, Cuttack\r\nalleging that her daughter, namely, Pratikhya\r\nPriyadarsini Biswal (Pinki), the deceased, was living with\r\none Nihar Ranjan Pradhan (Pintu) since 2006. Both of\r\nthem were committing crime and had been jailed on some\r\noccasions. The present petitioner happens to be the\r\nadvocate of Nihar and the deceased. It is alleged that\r\ntaking advantage of the imprisonment of Nihar, the\r\npetitioner secretly married the deceased and kept her as\r\nhis wife in a house at C.D.A., Sector-11 on rent. It is\r\nfurther alleged that the deceased insisted that the said\r\nmarriage should be solemnized as per Hindu rites and\r\ncustoms, but the petitioner had though assured to do so,\r\nyet fell back from his word, as a result of which, the deceased committed suicide. Basing on such FIR, Mahila\r\nP.S. Case No.146 of 2012 was registered under Sections\r\n493/417/306 of IPC. Upon completion of investigation,\r\nhowever, charge sheet was submitted under Sections\r\n493/417/406/306 of IPC and cognizance was taken of\r\nthe said offences. The case was thereafter committed to\r\nthe Court of Session for trial and is pending in the Court\r\nlearned 2nd Addl. Sessions Judge, Cuttack.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. On 25.09.2013, the petitioner-accused filed\r\nan application under Section 227 of Cr.P.C. in the Court\r\nbelow with prayer to discharge him from the offences\r\nmainly on the ground that the essential ingredients of the\r\nsame do not exist. The learned Court below after taking\r\ninto consideration the settled position of law and the\r\nallegations made in the FIR held that in so far as the\r\noffence under Section 406 of IPC is concerned, there is\r\nabsolutely no material on record to proceed against the\r\naccused and accordingly discharged him from the said\r\noffence. However, it was held that the materials on\r\nrecord, prima facie, satisfy the allegations against the accused under Section 493/417/306 of IPC. The said\r\norder is impugned in the present revision.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Heard Mr. S.S. Das, learned Senior Counsel\r\nfor the petitioner and Mr. A. Pradhan, learned Addl.\r\nStanding Counsel for the State.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Mr. S.S. Pradhan, learned Sr. Counsel would\r\nargue that criminal prosecution being a serious matter\r\naffecting the liberty of a person, can be allowed to\r\nproceed only if there are sufficient materials on record\r\njustifying the same. Referring to the allegations made in\r\nthe FIR and the statements of the witnesses recorded\r\nunder Section 161 Cr.P.C., it is submitted by Mr. Das\r\nthat the prosecution case, even if accepted on its face\r\nvalue, does not in any manner establish the offences\r\nalleged. Referring to the decision of the Hon’ble Supreme\r\nCourt in the case of Union of India vs. Prafulla Kumar\r\nSamal and others, reported in (1979) 3 SCC 4, it is\r\ncontended by Mr. Das that the Court while framing\r\ncharge under Section 227 of Cr.P.C. must find out\r\nwhether or not prima face case against accused had been made out and whether such materials disclose grave\r\nsuspicion against the accused, which had not been\r\nproperly explained. According to Mr. Das, mere suspicion\r\ncannot justify continuance of a criminal proceeding.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Per contra, Mr. A. Pradhan has submitted\r\nthat facts of the present case clearly reveal that there are\r\nsufficient materials before the Court to presume that the\r\noffences under Sections 493/417/306 of IPC were\r\ncommitted by the accused and therefore, there is no\r\nillegality in the impugned order. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">7. A brief reference to the relevant position of\r\nlaw would be apposite at the outset. In the case of\r\nPrafulla Kumar Samal, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Therefore, at the stage of framing charge, duty is cast\r\nupon the Court to look at the evidence placed before it to\r\nsee whether or not there is sufficient ground to proceed\r\nagainst the accused.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. In the case of State of Bihar vs. Ramesh\r\nSingh, reported in (1977) Cri.L.J. 1606, the Apex Court\r\nheld that the suspicion that the accused has committed\r\nan offence must not be simple but grave. In other words,\r\nthere must be a grave suspicion as against mere\r\nsuspicion before the Court can frame charge against the\r\naccused.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. In the case of Dilawar Balu Kurane vs.\r\nState of Maharashtra, reported in (2002) 2 SCC 135, it\r\nwas held that where the materials placed before the court\r\ndisclose grave suspicion against the accused which has\r\nnot been properly explained the court will be fully justified in framing a charge and proceeding with the\r\ntrial; by and large if two views are equally possible and\r\nthe Judge is satisfied that the evidence produced before\r\nhim while giving rise to some suspicion but not grave\r\nsuspicion against the accused, he will be fully justified to\r\ndischarge the accused, and in exercising jurisdiction\r\nunder Section 227 of the Cr.P.C. and for such purpose he\r\nhas to consider the broad probabilities of the case, the\r\ntotal effect of the evidence and the documents produced\r\nbefore him without making a roving enquiry into the pros\r\nand cons of the matter.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b style=\"background-color: rgb(255, 255, 0);\">10. From the above narration it is evident that\r\nonly a grave suspicion can justify framing of charge\r\nagainst an accused. To further explain, suspicion per se\r\nmay be entirely in the realm of speculation or\r\nimagination and may also be without any basis, whereas\r\ngrave suspicion is something which arises on the basis of\r\nsome acceptable material or evidence. Only because there\r\nis no other explanation for the alleged occurrence, the\r\nneedle of suspicion should point at the accused cannot be a reasonable basis to proceed with the trial against\r\nhim. But to do so, there must be some nexus or link\r\nbetween him and the occurrence which is ex facie\r\navailable to be seen or inferred from the materials placed\r\nbefore the Court. Only then will the statutory\r\nrequirement of “sufficient ground” as per Section 227\r\nCr.P.C. be said to have been satisfied.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. The facts of the case now need to be viewed\r\nin the light of aforementioned legal propositions. A\r\nreading of the FIR and the statement of the witnesses\r\nrecorded under Section 161 Cr.P.C. do not even remotely\r\nsuggest the commission of offence under Section 493 IPC.\r\nOn the contrary, it is the admitted case that the\r\npetitioner and the deceased had secretly married and\r\nwere residing together in a rented house. Therefore, the\r\nquestion of accused deceitfully inducing a belief of lawful\r\nmarriage on the deceased for cohabitation does not arise.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. As regards the offence under Section 417 of\r\nCr.P.C., the only allegation is that the accused cheated\r\nthe deceased by not marrying her despite promising to do so. As has already been narrated hereinbefore, the\r\npetitioner and the deceased had already married secretly\r\nbut the deceased wanted their marriage to be solemnized\r\nas per Hindu rites and customs. It is otherwise borne out\r\nfrom the materials on record that in deference to such\r\ndesire of the deceased, the accused had made\r\narrangements to solemnize their marriage at Sri\r\nRamanigameswar Temple at Chahata, Cuttack. It is\r\nsignificant to note that such marriage was supposed to\r\ntake place on 02.09.2012, but for some reason the same\r\ndid not happen. The deceased committed suicide on the\r\nnext date. It is not forthcoming from the materials on\r\nrecord as to why the marriage did not take place on\r\n02.09.2012. There is simply no material to suggest that\r\nthe marriage was called off at the instance of the accused\r\nor that he refused to marry the deceased despite having\r\nmade arrangements for the marriage to be solemnized on\r\n02.09.2012. So, this much alone cannot persuade the\r\nCourt to presume that the accused had any fraudulent\r\nintention to cheat the deceased. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. Coming to the offence under Section 306 of\r\nIPC, it is argued by learned Senior Counsel that the basic\r\ningredient thereof i.e. of abetment within the meaning of\r\nSection 107 of IPC is not made out at all inasmuch as,\r\nthere is neither a suicide note written by the deceased\r\nblaming the accused for her death nor there is an oral\r\ndying declaration recorded by any person, whereby, she\r\nblamed the accused. The allegation according to Mr. Das\r\nappears to be omnibus in nature and not based on any\r\nmaterial at all. Mr. A. Pradhan, learned Addl. Standing\r\nCounsel on the other hand would contend that since the\r\naccused went back on his promise to have their marriage\r\nsolemnized in the temple, the deceased became\r\ndepressed to such extent as to commit suicide. In the FIR\r\nit is simply alleged that as the accused did not marry the\r\ndeceased, she did not wish to live any further and\r\ntherefore, committed suicide. It is obviously a bald\r\nallegation without reference to any specific incident or\r\nhappening. In the statement of the informant recorded\r\nunder Section 161 Cr.P.C. it is also alleged that the accused refused to marry the deceased, for which she\r\ncommitted suicide being unable to bear her mental\r\nagony. The aunt of the deceased has also given a similar\r\nstatement but the same appears to be based on the\r\ninformation she received from the informant. Similar is\r\nthe statement given by the younger brother of the\r\ndeceased. No other witnesses have stated anything in this\r\nregard excepting for their knowledge that the deceased\r\nhad committed suicide.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. On the above evidence, the question that the\r\nCourt would pose for determination is whether it is\r\nsufficient to presume that the accused had abetted\r\ncommission of suicide by the deceased. Fact remains that\r\nboth of them had already been secretly married but the\r\ndeceased is said to have insisted for solemnization of\r\nmarriage as per Hindu rites and customs. The deceased,\r\nit must be kept in mind, was 26 years old at the relevant\r\ntime and such secret marriage with the accused was\r\nsubsequent to a live-in relationship she had with Nihar\r\nRanjan Pradhan since 2006. The marriage was to take  place on 2nd September, 2012, but for some reason it did\r\nnot happen on that date and the deceased committed\r\nsuicide on 3rd September, 2012. As already been\r\ndiscussed, there was neither any suicide note nor any\r\ndying declaration nor even any statement made by the\r\ndeceased before anybody prior to committing suicide\r\nmaking any allegation against the accused or expressing\r\nthat she was depressed because of non-solemnization of\r\nthe proposed marriage. So it becomes rather far-fetched,\r\nparticularly in the absence of any acceptable material to\r\nhold that only because the proposed marriage could not\r\nbe solemnized on the date fixed, it caused such mental\r\nimbalance in the deceased that led her to commit suicide.\r\nThus, while there is no material showing any positive act\r\nhaving been committed by the accused, the allegation\r\nagainst him is one of omission as noted above. But then,\r\neven assuming for the sake of argument that the\r\ndeceased had lost her mental balance or became mentally\r\ndepressed because their marriage could not take place on\r\nthe date fixed, the question is, whether the same can be treated as abetment within the meaning of Section 107 of\r\nIPC. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the case of Chitresh Kumar Chopra vs.\r\nState (Govt. of NCT of Delhi), reported in (2009) 16 SCC\r\n605 as well in the case of Parveen Pradhan vs. State of\r\nUttaranchal, reported in (2013) 1 SCC (Cri) 146, the\r\napex Court held that to constitute ‘instigation’, a person\r\nwho instigates another has to provoke, incite, urge or\r\nencourage the doing of an act by the other by ‘goading’ or\r\n‘urging forward’.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. In the instant case, there is nothing on\r\nrecord to show that the accused had instigated the deceased either by his words or actions so as to lead her\r\nto commit suicide. Nothing has been placed on record as\r\nto the reasons for the marriage not taking place on the\r\ndate fixed despite arrangements having been made\r\ntherefor. Whether the marriage was not held only\r\nbecause the accused refused to marry the deceased is\r\nsimply not forthcoming from the materials on record,\r\nrather the informant appears to have simply presumed\r\nthat the accused refused to marry her daughter and\r\nbecause of such reason she committed suicide. As\r\nalready stated, there being no reasonable basis for such\r\npresumption nor suspicion, the accused cannot be made\r\nto suffer the ignominy of undergoing the criminal trial,\r\nthat too, for a sessions triable offence. In other words, the\r\nprosecution case read as a whole does not justify a trial\r\nof the accused for the alleged offences.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. For the foregoing reasons therefore, this\r\nCourt has no hesitation in holding that the impugned\r\norder in so far as it relates to not discharging the accused\r\nfrom the offences under Sections 493/417/306 of IPC cannot be sustained. Consequently, the Revision is\r\nallowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The impugned order is set aside. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The accused petitioner be discharged from the offences under Section\r\n493/417/306 of IPC. </b></p>', 'f22b50381f5046555a012a4dbbe49cea.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-22', 1, '', '', '2022-03-20 22:49:05', '2022-03-22 19:06:07'),
(1448, 'FYWgUHeqeFcrNwt8oJHebBzvF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Wife cannot be appointed as guardian to deal with her vegetative state husband\'s property in the absence of legal provision since law is silent on this aspect. Bombay High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sonia Fazal Khan and others Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 12047 of 2021 decided on 16 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Madhav J Jamdar and Justice G.S Patel.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The 1st Petitioner, Sonia Fazal Khan, is the wife of one Fazal\r\nKhan. Petitioners Nos. 2 and 3, Naeema and Tasneem, are Sonia’s\r\nand Fazal’s married daughters. The Petition says that for the last\r\ndecade Fazal has been living in a vegetative state. He not only has\r\ndementia but has had multiple strokes. <span style=\"background-color: rgb(255, 255, 0);\">There are other\r\ncomplications. The prayer in the Petition is to appoint his wife,\r\nSonia, the 1st Petitioner as the guardian of the Fazal’s personal and\r\nproperty.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"background-color: rgb(255, 255, 0);\">2. In previous orders in other cases we have noticed that there is\r\nno structured provision in law as yet to deal with these situations.</span>\r\nThere are some indications in the Disabilities Act and in similar\r\nstatutes but a comprehensive statute dealing with these situations\r\nand allowing pro-tem guardianship is not yet in place. We refer to\r\nour decision of 13th December 2021 in Lubina Mohamed Agarwal\r\nand Anr v Union of India and Ors. In paragraph 19 of our order dated\r\nwe granted interim relief but subject to certain safeguards. We\r\npropose to adopt the same principle here.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. First, as to Fazal’s condition. There is a reasonably recent\r\nclinical report of 1st October 2021. The report was submitted to this\r\nCourt pursuant to an order of 25th August 2021 (Ujjal Bhuyan and\r\nMadhav J Jamdar, JJ). The report tells us that Fazal has dementia,\r\nvery likely due to a multi-infarct state dating back to 2011. He has\r\npneumonitis and bed sores. He has been hospitalized often. He is\r\ntotally bed-ridden. He is administered oxygen nasally. He has\r\nspontaneous eye movements but cannot maintain eye contact, DOC\r\nspeak, understand, sign, move his right side or take any decision. He\r\nis totally dependent on his care-givers. He is fed through a Ryles\r\ntube. He has Foley catheter. His brain MRI of July 2006 suggests a\r\ndiffuse cerebral atrophy with this multi-infarct stage.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The schedule-I at page 103 sets out the quite considerable\r\nitems of monthly expenditure and the amounts being spent.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. At present we are concerned with two assets. One is a bank\r\naccount with the Saraswat Bank. This is bank account No.\r\nSBGen/013200128869846. It is with the Old Military Road, Marol,\r\nAndheri (East) Branch. It stands in the name of Fazal Khan as the\r\nfirst holder. Sonia is the only joint holder.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The other property in question is the residential flat shown at\r\npage 104, viz., flat No. B/607, Mayur Tower, CHSL, old Military\r\nRoad, CTS No. 258, Village Marol, Andheri (East), Mumbai 400\r\n059.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. At this stage we note that there is a Intervention Application\r\nby one Asif Fazal Khan. He lives elsewhere at another address. He\r\nseeks leave to intervene. He says that he is the “de facto” guardian\r\nof Fazal for many years. There is absolutely nothing in his\r\napplication to show this. Although the Petition by Sonia and her\r\ndaughters annexes a large number of documents showing expenses\r\nand bills paid by Sonia and in Sonia’s name, there is not one scrap of\r\npaper adduced by Asif in support of his contention.&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 8. Asif then says that although his parents are alive, there are\r\ntwo flats and both are what he describes as “ a shared household”\r\nand therefore he, the son, has some sort of enforceable legal right or\r\nentitlement to either or both of these flats. The submission is so illfounded and illogical that it only needs to be stated to be rejected. In\r\nany conceptualization of succession law for any community or faith,\r\nAsif can have no right, title or interest whatsoever in either of these\r\nflats — one in his father’s name and other in his mother’s name —\r\nso long as his parents are alive. The suggestion that Asif has a\r\nsettled and enforceable share in either of the flats in the lifetimes of\r\nthe real owners, his parents, is laughable. The fact that he is their\r\nson does not make either of their flats ‘a shared household’.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The fact that Asif may have been advised (or ill-advised) to\r\nadopt some domestic violence proceedings against his sisters is\r\nutterly immaterial. We do not see how Asif can complain of\r\ndomestic violence when he is demonstrably not part of the domestic\r\nset-up to begin with.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Asif has no rights in his father’s flats. He has nothing to show\r\nthat he has ever cared for his father.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. We are not seeking Asif’s consent to the order we make. We\r\ndo not need it. We are rejecting his application for intervention. We\r\nreject his contention that his mother has an ‘alternate remedy’. That\r\nsubmission alone shows us Asif’s true nature, his utterly heartless\r\nand avaricious approach. His Interim Application is dismissed.&nbsp; </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. We permit the Petitioner No. 1 Sonia Fazal Khan to operate\r\nthe Saraswat Cooperative Bank account mentioned above. It stands\r\nin the joint name of Fazal Akbar Khan and Sonia Fazal Khan. She\r\nmay draw on the amounts in this account to meet all and any of\r\nFazal’s expenses. She is not permitted to use any of these amounts\r\nfor her own personal purposes nor to transfer these amounts to her\r\nown account. She is required to maintain accounts including\r\nreceipts of all payments made from this account whether by cheque,\r\ntransfer or against cash withdrawals. Once a year, Sonia is required\r\nto file a statement of account regarding the drawls from the account.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. As regards the immovable property described at page 104 we\r\nare told that Sonia proposes to sell this flat along with the adjacent\r\nflat that is her own name so that the proceeds can be used to look\r\nafter Fazal for the future.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. We permit Sonia to open negotiations for any prospective\r\npurchaser and to conclude negotiations arriving at a price and on\r\nterms but not to execute either an MoU or an agreement for sale\r\nwithout prior leave of this Court. That leave must be obtained on a\r\nproper Interim Application. In that Interim Application. full details\r\nof the proposed transaction must be disclosed. The identity of the\r\nbuyer, the consideration, mode of payment, time of payment and a\r\ndraft of the proposed that given to sale must all be annexed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. The reason we make this requirement is that, although there\r\nis no specific statue in this regard, we put the case of Fazal\r\npractically on the same footing as that of a minor who holds a share&nbsp; in immovable property. This necessarily means that Fazal’s interests\r\nare under the care and supervision of the Court and any disposal of\r\nhis share in any immovable property must be for stated and bona\r\nfide purposes that are demonstrably in his interest. It is for this\r\nreason that we find ourselves unable to grant an open-ended\r\npermission in cases like this. This is however not to be construed as\r\na rejection of what Sonia seeks but only a direction by way of caution\r\nand circumspection so that there is no cause of complaint at a later\r\nstage.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. We keep the Petition pending. Liberty to the Petitioners to\r\napply.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '487989db712e1218fa95514f650f55cd.jpeg', '0acd48eb39df05a956ebc2628753aef7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-20', 1, '', '', '2022-03-20 22:58:25', '2022-03-20 13:18:50'),
(2959, 'NwNGlnf5JKYgPzQWOr0Kmd3S6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Political rallies have some elements of dissemination of knowledge & information to the public at large and they generate lot of political awareness in the voting masses”. Karnataka High Court on PM Modi\'s Road Show. ', '<p><b>AMRUTHESH N P vs STATE OF KARNATAKA, and others. <br>WRIT PETITION NO. 9952 OF 2023 (GM-RES) <br>JUSTICE KRISHNA S DIXIT\r\n and JUSTICE VIJAYKUMAR A. PATIL </b></p><p><b>This judgment being rendered in a PIL needs to be\r\npreluded by what the former Chief Editor of the New York\r\nTimes (1 December,1989) Mr. A M Rosenthal ecstatically had commented as under, about our Parliamentary\r\nElections of November, 1989:\r\n</b></p><p><i><b> “When India voted, a whole world voted.\r\nA whole world - hundreds of millions of people,\r\nspeaking in a great orchestra of different\r\nlanguages, praying to different gods, living in a\r\ncontinental hugeness that not long ago was\r\ndivided into hundreds of principalities, people\r\ndriven to centuries of war against each other by\r\nrulers seeking conquest, foreigners seeking\r\nbooty, religious zealots seeking blood, educated\r\npeople by the millions, illiterate peasants by the\r\nscores of millions, from mountains through\r\ngreat stretches of plains to southern seas.\r\nOnce again this whole world voted as one\r\nnation in a countrywide election, nine times\r\nnow.”\r\n</b></i></p><p><b>It is said that Elections are the festivals of Democracy. In\r\nIndia, these festivals are celebrated with all pomp & glory\r\nsignifying something, albeit unseemingly.  </b></p><p><b>(a) The submission of the party in person that rallies\r\nof the kind would disrupt the day to day lives of several\r\nclasses of people, more particularly the school & college\r\ngoers, hawkers & peddlers, employees/workmen of\r\ngarment & other industries and such other wage earners\r\nis in a measure true; however, his submission that\r\nbecause of such possible disruption, no political rallies\r\nduring the election process should be permitted anywhere\r\nin the State, is too farfetched an argument that runs\r\ncounter to the election jurisprudence of more than seven\r\ndecades. It needs no research to know that, rallies of the kind were held right from the 1st General Elections to the\r\nParliament in the year 1952 and after. The political\r\nparties recognized by Election Commission of India, their\r\ncandidates and others in the electoral fray have a legal\r\nright to undertake election campaign inter alia by\r\norganizing political rallies in the public. Such a right, as of\r\nnecessity needs to be recognized & acceded to. An\r\nargument to the contrary, falls foul of the electoral\r\nrealities. </b></p><p><b>(b) Petitioner, a practising lawyer who argued the\r\ncase in person of course with the leave of Court, his\r\nadvocate on record having had some ailment could not\r\ncite one single decision of the Apex Court or of any of the\r\nHigh Courts in the country to support his claim for\r\nclamping an absolute embargo on the conduct of political\r\nrallies & road shows during the election times. He also\r\ncould not draw the attention of Court to any of statutory\r\nprovisions or the orders/circulars issued by the Election\r\nCommission of India or such other authorities that would adumbrate his case even in the least. On the contrary\r\nlearned Panel Counsel appearing for the Election\r\nCommission of India cited decisions of two High Courts\r\nwhich refused to ban the holding of political rallies of the\r\nkind. Mr. Huilgol who represents the DEO is more than\r\njustified in notifying to the court with the help of Google\r\nthat political rallies do happen even on the foreign soil\r\ni.e., USA & UK where Democracy is the norm of\r\ngovernance. That being position, in the absence of\r\nstatutory prohibition, events of the kind cannot be banned\r\nin judicial review, as rightly contended by him. However,\r\nthis is not to say that the events of the kind can be held\r\nwith absolute immunity from regulation & control at the\r\nhands of authorities.</b></p><p><b>(d) The Political rallies of the kind have some\r\nelements of dissemination of knowledge & information to\r\nthe public at large and they generate lot of political\r\nawareness in the voting masses as contended by learned\r\nSr. Advocate Mr. Huilgol, cannot be disputed. Through\r\nthese rallies & road shows, the political parties and the\r\ncandidates in the electoral fray may tell the people as to\r\ntheir plans & programs, should they emerge victorious. Therefore, an absolute embargo on such events is not in\r\nthe best interest of democratic process  The Apex Court in\r\nUNION OF INDIA vs. ASSOCIATION FOR DEMOCRATIC\r\nREFORMS, 2002 (5) SCC 294 has recognized right of the\r\nvoters to know inter alia the criminal & financial\r\nantecedents of the candidates in the electoral fray. As as\r\noffshoot thereof, they have also a right to awareness\r\nabout the election process in a democracy; in a\r\nconsiderable measure, political rallies of the kind serve\r\nthis purpose. Mr. Huilgol is right in contending that the\r\npolitical parties and the candidates have also the\r\nFundamental freedoms constitutionally guaranteed under\r\nArticle 19(1) such as right to expression, right to assemble\r\npeaceably, right to movement and the like. A complete\r\nembargo on the political rallies as sought for by the\r\nPetitioner cannot be directed except in violation of pith &\r\nsubstance of these rights. However, this is not to say that\r\nthe rallies of the kind can be held in any manner and in\r\nany way and at any time sans any control & regulation as\r\nobserved in the rulings supra.</b></p><p><b> k) Lastly, we have also noted the responsible statement\r\nmade by the learned AAG and the DEO present in the\r\nCourt that a Committee is formed for considering the\r\napplication for the grant of permission to conduct political\r\nevents & road shows during the election process; it\r\ncomprises of inter alia the Commissioner of Police; it is\r\nheaded by the DEO who happens to be a senior IAS\r\nOfficer; an institutional decision would be taken on such\r\napplications in accordance with law, keeping in mind all\r\nrelevant factors. This assurance given to the public at\r\nlarge through the medium of this Court is also placed on\r\nrecord. We are of the considered view that a normative\r\nregime for the consideration of applications of the kind\r\nshould be established by framing elaborate guidelines with\r\nthe participation of all stakeholders like the Election\r\nCommission of India, the high ranking police officials,\r\nrepresentatives of the political parties and a few eminent members of the civil society. However, this is a matter\r\nessentially falling within the domain of the Government of\r\nthe day and therefore, much is not necessary to specify\r\nand less is insufficient to leave it unsaid. So far as the\r\nconduct of post election rallies/political events are\r\nconcerned, they are already made normative by a plethora\r\nof decisions of the Apex Court and therefore, we do not\r\nintend to deliberate on the same much. <br></b><br></p>', '0500c4cc130b03857a1ab5103e383c8f.JPG', 'e9b342617a0e253d79f41cdf99d44c3f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-06', 1, '', '', '2023-05-06 20:24:03', '2023-05-25 15:27:35');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2962, '7lw14pngRyZRYxZQNa1XfAUY3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court applies the test of ‘manifest arbitrariness’ to strike down the Rule which whittled down GST refund of input taxes paid in the course of zero-rated supply and export. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Tonbo Imaging India Pvt Ltd Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 13185 of 2020 decided on 16 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.R. Krishna Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Apart from other issues, the validity of Rule 89(4C) of the\r\nCentral Goods and Services Tax Rules, 2017 (for short ‘the CGST\r\nRules’) as amended vide Para 8 of the Notification No.16/2020-CT\r\ndated 23.03.2020 is the subject matter of the present petition.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The petitioner - M/s Tonbo Imaging India Pvt Ltd, is\r\nengaged in designing, developing, building and deploying various\r\ntypes of advanced imaging and sensor systems to sense,\r\nunderstand and control complex environments. The petitioner is\r\nengaged in developing innovative designs in micro-optics, lower\r\npower electronics and real-time vision processing to design\r\nimaging systems for real world applications in fields of military\r\napplications, critical infrastructures for modern day battlefields,\r\nunmanned reconnaissance, transport vehicles driving in the dark </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">etc., wherein the customized products provide effective\r\nvisualization in different and challenging environments.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3.1 The petitioner exported various aforementioned\r\ncustomized / unique products during the period from May 2018 to\r\nMarch 2019. Since exports made by the petitioner are “zero rated”\r\nunder Section 16 of the Integrated Goods and Services Act, 2017\r\n(for short, ‘the IGST Act’), the petitioner filed refund applications\r\nwith the respondents on 25.05.2020, 27.05.2020 and 28.05.2020\r\nand claimed refund of unutilized input tax credit under Section\r\n54(3)(i) of the Central Goods and Services Act, 2017 (for short ‘the\r\nCGST Act’) read with Rule 89 of the CGST Rules.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3.2 Meanwhile, Rule 89(4)(C) of the CGST Rules having\r\nbeen amended w.e.f 23.03.2020, Show Cause Notices dated\r\n27.05.2020, 03.06.2020 and 04.06.2020 were issued by the\r\nrespondents on the ground that the petitioner had not given proof,\r\nwhich was required to be given in terms of the amended Rule\r\n89(4)(C) of the CGST Rules and that therefore, the refund claims\r\ncould not be considered. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3.3 The petitioner submitted replies dated 04.06.2020,\r\n08.06.2020 and 09.06.2020 to the show cause notices inter-alia\r\nstating that the amended Rule 89(4)(C) of the CGST Rules would <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not be applicable in the instant case, as the period for which refund\r\nwas being claimed (i.e., May 2018 to March 2019) was much prior\r\nto the amendment of Rule 89(4)(C) (i.e., on 23.03.2020) and that\r\ntherefore, the petitioner would be governed by the old/un-amended\r\nRule 89(4)(C) and not the amended Rule 89(4)(C).\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3.4 In pursuance of the same, the respondents proceeded\r\nto pass the impugned order dated 30.06.2020 rejecting the refund\r\nclaim of the petitioner, who is before this Court by way of the\r\npresent petition not only assailing the impugned order but also the\r\nvalidity of Rule 89(4)(C) of the CGST Rules as well as the\r\nExplanation to Rule 93 of the CGST Rules.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. As rightly contended by the petitioner, in exports,\r\navailability of the rotation of funds is essential for the business to\r\nthrive. The entire concept of refund of unutilized input tax credit\r\nrelating to zero-rated supply would be obliterated in case the\r\nrespondents are permitted to put any limitation and condition that\r\ntakes away petitioner’s right to claim refund of all the taxes paid on\r\nthe domestic purchases used for the purpose of zero-rated\r\nsupplies. The incentive given to the exporters would lose its\r\nmeaning and this would cause grave hardship to the exporters,\r\nwho are earning valuable foreign exchange for the country. It\r\nshould be noted that exporters would have factored in such\r\nincentives in the pricing mechanism when they quote and\r\ntherefore, the restriction of the same would be highly unreasonable <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">given the objective of the Government that exports should be zero\r\nrated and taxes should not be exported.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">22. The respondents-revenue contend that the impugned\r\namendment was based on the minutes of the GST Council’s 39th\r\nmeeting held on 14.03.2020, which discloses that the above the\r\nonly ground for amendment seems to be a possible misuse without\r\nany factual data supporting the same; the reasons for such\r\namendments based on possible misuse without adequate defining\r\ndata cannot be countenanced as having a reasonable basis in law.\r\nIssue of misuse cannot be generalized. Every such misuse is\r\nrequired to be ascertained and verified before asserting that there\r\nhas been misuse. It is also well settled that if the government\r\nperceives that there could be a possibility of abuse of a provision, it\r\nshould adopt measures to keep a check on the same; however, the\r\nlaw cannot be amended on the premise of distrust.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. As rightly contended by the learned Senior counsel for\r\nthe petitioner, the impugned Rule 89(4)(C) is arbitrary and\r\nunreasonable, in as much as the possibility of taking undue benefit\r\nby inflating the value of the zero-rated supply of goods, cannot be a\r\nground to amend the Rule, which deserves to be declared invalid\r\non this ground also.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. Insofar as the other contentions urged by the\r\nrespondents – revenue in their statement of objections and before <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">this Court, the same are neither relevant nor germane for\r\nadjudication of this petition and consequently, the same have not\r\nbeen referred to in detail in this order.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n28. For the foregoing reasons, I am of the considered\r\nopinion that the impugned Rule 89(4)(C) of the CGST Rules, 2017\r\nas amended vide Para 8 of the Notification No.16/2020-Central Tax\r\ndated 23.03.2020 deserves to be declared ultra vires and invalid\r\nand consequently deserves to be quashed. So also, the impugned\r\norder dated 30.06.2020 which is based on the impugned amended\r\nRule also deserves to be quashed and consequently, respondents\r\nare to be directed to accept the refund applications of the petitioner\r\nand grant refund in favour of the petitioner together with applicable\r\ninterest within a stipulated time frame.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n29. The issue regarding validity of the Explanation to Rule\r\n93 of the CGST Rules is however kept open to be dealt with in an\r\nappropriate case</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The writ petition is hereby allowed; <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) The impugned offending words, “or the value which is 1.5\r\ntimes the value of like goods domestically supplied by the\r\nsame or, similarly placed supplier” appearing in Rule 89(4C) of\r\nthe Central Goods and Services Tax Rules, 2017 as amended vide\r\nPara 8 of the Notification No.16/2020-Central Tax(F.No.CBEC20/06/04/2020-GST) dated 23.03.2020 is declared ultra vires the\r\nprovisions of the Central Goods and Services Tax Act, 2017 and\r\nthe Integrated Goods and Services Tax Act, 2017 as also violative\r\nof Articles 14 and 19 of the Constitution of India and resultantly, the\r\nsame are hereby quashed; </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '690c4fe659f3d9fa6faec757ee3907d9.JPG', '374fb5bd47a5357ce79ba72e6eb82eb1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-15', 1, '', '', '2023-05-15 15:16:43', '2023-05-15 15:26:36'),
(2961, 'CwlEO4NMeteK0hfQvfKjmnkMl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Betting and Gambling” under the CGST Act do not include Online/Electronic/Digital Rummy & Digital games which are games of skills. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gameskraft Technologies Private Limited Vs Directorate General of Goods Services Tax Intelligence and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 19570 of 2022 decided on 11 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.R. Krishna Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The main question/issue that arises for consideration in\r\nthese petitions is, whether offline/online games such as\r\nRummy which are mainly/preponderantly/substantially based\r\non skill and not on chance, whether played with/without stakes\r\ntantamount to ‘gambling or betting’ as contemplated in Entry 6\r\nof Schedule III of the Goods and Services Act, 2017.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">M/s.Gameskraft Technologies Pvt. Ltd., (for short ‘the\r\nGTPL’) claims to be an Online Intermediary Company\r\nincorporated in June 2017, who runs technology platforms that\r\nallow users to play skill based online games against each\r\nother. Petitioner - GTPL contends that it has over 10 lakh\r\nusers from across India and is headquartered in Bangalore\r\nand registered under the Central Goods and Services Tax Act,\r\n2017 (for short ‘ the CGST Act’) and the Karnataka Goods and\r\nServices Tax Act, 2017 (for short ‘the KGST Act’). It is\r\ncontended that the said company is a legally compliant </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">company, who has been duly filing GST returns and has paid\r\nGST and is a bonafide tax payer having paid tax returns on a\r\ntimely basis and has paid substantial tax to the tune of\r\nRs.1,600/- crores under GST and Income Tax Laws upto\r\nJune 2022.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. At the outset, it is relevant to state that the impugned\r\nAttachment orders having been passed on 17.11.2021 and\r\n30.11.2021, the period of one year prescribed in Section 83 of\r\nthe CGST Act having expired during the pendency of the\r\nsubsequent petitions challenging the impugned SCN, this\r\nCourt while reserving the petitions on 17.11.2022 directed that\r\nthe said Attachment orders would continue till disposal of\r\nthese petitions. Further, the impugned Intimation dated\r\n08.09.2022 issued under Section 74(5) of the CGST Act\r\nhaving been subsumed by issuance of the impugned SCN\r\ndated 23.09.2022, the legality, validity and correctness of the\r\nimpugned SCN is the core / main issue to be adjudicated upon\r\nin these petitions.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Interpretation of Betting and Gambling in the\r\ncontext of GST\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The expression “betting and gambling” also featured in\r\nthe erstwhile Entry 62 of List II which dealt with tax on “betting\r\nand gambling”. By the Constitution (One Hundred and First <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Amendment) Act, 2016, Entry 62 of List II was amended and\r\nthe expression “betting and gambling” was omitted. The\r\npurpose of this omission was to subsume taxation on betting\r\nand gambling under the GST regime. Consequently, the same\r\nexpression “betting and gambling” now features in Entry 6 of\r\nSchedule III of the CGST Act. In the case of State of\r\nKarnataka vs. State of Meghalaya –2022 SCC Online SC\r\n350, the Apex Court held that the interpretation of the\r\nexpression “betting and gambling” in the context of Entry 34 of\r\nList II shall apply to the expression “betting and gambling”\r\nunder Entry 62 of List II. As the expression “betting and\r\ngambling” was omitted from Entry 62 to give way for taxation\r\non “betting and gambling” to be subsumed under the GST\r\nregime, the expression “betting and gambling” in Entry 6 of\r\nSchedule III of the CGST Act must also be interpreted in the\r\nsame manner.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2. Further, the decisions referred to above, in the\r\ncontext of “betting” and “gambling” have been interpreted in\r\nthe context of Entry 34 of List II of the Seventh Schedule to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Constitution and the Public Gambling Act, 1867. When\r\nwords acquire a technical meaning because of their\r\nauthoritative construction by superior courts, they must be\r\nunderstood in that sense when used in a similar context in\r\nsubsequent legislations.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. Thus, the terms “betting” and “gambling” under in\r\nEntry 6 of Schedule III of the CGST Act must be given the\r\nsame interpretation given to them by the courts, in the context\r\nof Entry 34 of List II of the Seventh Schedule to the\r\nConstitution and the Public Gambling Act, 1867. Therefore,\r\nthe terms “betting” and “gambling” appearing in Entry 6 of\r\nSchedule III of the CGST Act does not and cannot include\r\ngames of skill within its ambit and must be so held as per the\r\ndictum set out above.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n6. Insofar as the other judgments relied upon by both\r\nsides and various other contentions urged by them, in my <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">considered opinion, the same are neither relevant nor\r\ngermane for the purpose of adjudication of the issue in\r\ncontroversy involved in the present petitions and as such, I do\r\nnot deem it appropriate to burden this order by referring to\r\nthem in detail.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. After having dealt with the rival contentions as stated\r\nsupra, it is significant to state that a perusal of the impugned\r\nshow cause notice as well as contentions and submissions of\r\nthe respondents will clearly indicate that the same are an\r\noutcome of a vain and futile attempt on the part of the\r\nrespondents to cherry pick stray sentences from the\r\njudgments of various Courts including the Apex Court, this\r\nCourt and other High Courts and try to build up a non-existent\r\ncase out of nothing which clearly amounts to splitting hairs\r\nand clutching at straws which cannot be countenanced and is\r\nimpermissible in law.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>X. CONCLUSIONS\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>• There is a distinct difference between games of skill and\r\ngames of chance; games such as rummy, etc. as was\r\ndiscussed in several decisions above and particularized\r\nin the Division Bench decision of this Court in All India\r\nGaming Federation’s case supra, whether played\r\nonline or physical, with or without stakes would be games\r\nof skill and test of predominance would apply; the said\r\njudgment is a total and complete answer not only to the\r\nvarious contentions urged by the respondents but also\r\ncovers the issues / questions that arise for consideration\r\nin the instant petitions.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n• Though Section 2(17) of the CGST Act recognises even\r\nwagering contracts as included in the term business, but\r\nthat in itself would not mean that lottery, betting and\r\ngambling are the same as games of skill.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>• The meaning of the terms “lottery, betting and gambling”\r\nas contemplated in Entry 6 of Schedule III of the CGST <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Act should be construed nomen juris in the light of the\r\ndecisions of the Hon’ble Supreme Court, this Court and\r\nother High Courts supra which do not include games of\r\nskill.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>• Entry 6 in Schedule III to the CGST Act taking actionable\r\nclaims out of the purview of supply of goods or services\r\nwould clearly apply to games of skill and only games of\r\nchance such as lottery, betting and gambling would be\r\ntaxable.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>• Taxation of games of skill is outside the scope of the term\r\n“supply” in view of Section 7(2) of the CGST Act, 2017\r\nread with Schedule III of the Act.\r\n• A game of chance whether played with stakes is gambling;\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>• A game of skill whether played with stakes or without\r\nstakes is not gambling; </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">• A game of mixed chance and skill is gambling, if it is\r\nsubstantially and preponderantly a game of chance and\r\nnot of skill;\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>• A game of mixed chance and skill is not gambling, if it is\r\nsubstantially and preponderantly a game of skill and not of\r\nchance;\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>• Rummy is substantially and preponderantly a game of skill\r\nand not of chance;\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>• Rummy whether played with stakes or without stakes is\r\nnot gambling;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n• There is no difference between offline/physical Rummy\r\nand Online/Electronic/Digital Rummy and both are\r\nsubstantially and preponderantly games of skill and not of\r\nchance;\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>• Online/Electronic/Digital Rummy whether played with\r\nstakes or without stakes is not gambling;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>• Other Online/Electronic/Digital games which are also\r\nsubstantially and preponderantly games of skill and not of\r\nchance are also not gambling;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>• The expressions, ‘Betting’ and ‘Gambling’ having\r\nbecome nomen juris, the same are applicable for the\r\npurpose of GST also and consequently, the said words,\r\n‘Betting’ and ‘Gambling’ contained in Entry 6 of\r\nSchedule III to the CGST Act are not applicable to\r\nOnline/Electronic/Digital Rummy, whether played with\r\nstakes or without stakes as well as to any other\r\nOnline/Electronic/Digital games which are also\r\nsubstantially and preponderantly games of skill;\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>• The subject Online/Electronic/Digital Rummy game and\r\nother Online/Electronic/Digital games played on the\r\nPetitioners’ platforms are not taxable as ‘Betting’ and\r\n‘Gambling’ as contended by the respondents under the\r\nCGST Act and Rules or under the impugned show cause\r\nnotice issued by the respondents; <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>• Consequently, the impugned Show Cause Notice dated\r\n23.09.2022 issued by the respondents to the petitioners is\r\nillegal, arbitrary and without jurisdiction or authority of law\r\nand deserves to be quashed. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) W.P.No.19570/2022, W.P.No.19561/2022,\r\nW.P.No.20119/2022 and W.P.No.20120/2022 are hereby\r\nallowed; </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e0e7335fe41cda87d3f6cfa52d3d3118.JPG', '5d6706e9958525525c92351f0bb1a8ab.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-14', 1, '', '', '2023-05-14 08:44:31', '2023-05-14 14:36:33');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1450, 'XaOD5r8qyQAUxftucCjhMiMPF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Industrial Disputes Act. Workman engaged in some activity to eke out  livelihood. So long as the employment is not under any establishment, the same will not deprive him of the statutory benefits of Section 17-B. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Lourdes Hospital Vs State of Kerala and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WA 43 of 2022 decided on 13 January 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Alexander Thomas and Justice Viju Abraham.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The appellant herein has filed the instant Writ Petition (Civil),\r\nW.P(C) No.27742/2020 before this Court with the following prayers :</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>“i. Issue a writ of certiorari or appropriate writ, order or direction calling\r\nfor the records leading to Ext.P3 and quash the same.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>ii. Issue such other appropriate writ, order or direction that may be\r\ndeemed to be just and equitable in the facts and circumstances of the\r\ncase.”\r\n</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. The writ petitioner/writ appellant-Employer has challenged the\r\nlegality and correctness of the impugned Ext.P-3 award dated 24.12.2018\r\nrendered by the Labour Court, Ernakulam on I.D No.27/2014, whereby it\r\nwas ordered that the impugned order of dismissal of the workman\r\n(R2 herein) was found to be illegal and unlawful and the management was\r\ndirected to re-instate the workman, but without back-wages. The above\r\nwrit petition was filed before this Court on 09.12.2020. The learned Single\r\nJudge at the admission stage itself has granted an interim order directing\r\nthe stay of the operation and enforcement of the impugned Ext.P-3 award Later, the respondent-workman has entered appearance through his\r\nlearned counsel and has filed I.A No.1/2021 in the said W.P(C)\r\nNo.27742/2020 stating that he has not been employed in any\r\nestablishment, during the relevant period and that his last drawn wages at\r\nthe time of his termination from service was Rs.8,500/- p.m. and that he is\r\nstatutorily entitled for getting wages in terms of the provisions contained\r\nin Sec.17-B of the Industrial Disputes Act, 1947. The said application filed\r\nby the workman for Sec.17B wages has been allowed by the learned Single\r\nJudge, as per the impugned order dated 22.11.2021 in I.A No.1/2021 filed\r\nby the respondent-workman in W.P(C) No.27742/2020. It is this interim\r\norder rendered by the learned Single Judge on 22.11.2021 granting Sec.17-\r\nB wages to the workman that is under challenge in the instant intra court\r\nappeal filed under Sec.5(i) of the Kerala High Court Act, at the instance of\r\nthe writ petitioner-Management/employer.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. Heard Sri.Enoch David Simon, learned Advocate instructed\r\nand assisted by Ms.Suzanne Kurian, learned counsel appearing for the\r\nappellant in the W.A/petitioner in the W.P(C), Sri.A.Jayasankar, learned\r\ncounsel appearing for R2 in the W.A/R2 in the W.P(C) and Sri.Saigi Jacob\r\nPalatty, learned Senior Government Pleader appearing for R1 (State) in the\r\nW.A/R1 in the W.P(C). </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. As indicated hereinabove, the Labour Court, Ernakulam, as per\r\nthe impugned Ext.P-3 award rendered on 24.12.2018 on I.D No.27/2014,\r\nhas found that the termination from service imposed on the workman by\r\nthe management is illegal and unlawful and that the management should\r\nre-instate the workman in service, but without back-wages. The claim for\r\nwages under Sec.17-B of the Industrial Disputes Act, 1947 has now been\r\nallowed by the learned Single Judge as per the impugned order. It is this\r\ninterim order that is under challenge before us.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n5. One of the prime contention raised by the learned counsel\r\nappearing for the appellant-management is that even going by the\r\nmaterials before the Labour Court, it can be seen that the respondentworkman has been working in the optical shop owned by his wife and\r\nfurther that, he is continuing to get rental income from two rooms owned\r\nby him and that this would clearly show that the workman was employed\r\nin his wife\'s optical shop and even otherwise, he is having a source of\r\nincome and therefore, the jurisdictional facts under Sec.17-B of the\r\nIndustrial Disputes Act, are not satisfied in this case and that the contrary\r\nview taken by the learned Single Judge, as per the impugned interim order,\r\nis illegal and unreasonable.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. Per contra, the learned counsel appearing for the respondentworkman would urge that the workman has filed I.A No.1/2021 in the instant W.P(C) along with the supporting affidavit, wherein it has been\r\nsworn by him that he is not having any employment in any establishment,\r\neither during the period of pendency of the case before the Labour Court or\r\nat any point of time including the period during the pendency of the\r\npresent writ proceedings. Further that, at any rate, he is not having any\r\nemployment during the period of the pendency of the writ proceedings,\r\nwhich alone is relevant for the purpose of determining the right claimed\r\nunder 17-B of the ID Act and that his last drawn wages is Rs.8,500/- p.m.,\r\netc. and therefore, the impugned interim order granted by the learned\r\nSingle Judge, is not amenable for any interference at the hands of this\r\nappellate Court, as the same cannot be said to be illegal or unreasonable in\r\nany view of the matter.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. The learned counsel appearing for the appellant has placed\r\nreliance on the judgment of a learned Single Judge of the Delhi High Court\r\nin the case in NNS Online Pvt. Ltd. v. Government of National\r\nCapital Territory of Delhi & Ors. [MANU/DE/2447/2021], as per the\r\njudgment rendered on 21.09.2021 in W.P(C) No.2726/2020. Per contra,\r\nthe learned counsel for the respondent-workman has placed reliance on\r\nvarious judgments as in Jayaraman v. Quilon Gas Service [1995(1)\r\nKLT 633], Commandant, Defence Security v. Secretary,\r\nN.C.C.G.U.E Assn. [2001 (2) KLT 104 (DB)], etc. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. We have heard both sides in extenso and have considered the\r\nrival contentions and have perused the pleadings and materials on record.\r\nAt the outset, it may be pertinent to refer to the provisions contained in\r\nSec.17-B as well as the objections and reasons which prompted the\r\nParliament in engrafting the provisions, as per Sec.17-B of the Industrial\r\nDisputes Act. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. It is by now well-established by a catena of rulings of the Apex\r\nCourt and various High Courts, including this Court that the following\r\nconditions should be mandatorily fulfilled to enable the workman to claim\r\nwages in terms of Sec.17-B of the ID Act during the pendency of writ\r\nproceedings to challenge the Labour Court award either before the High\r\nCourt or before the Apex Court. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Once these vital conditions are cumulatively satisfied, then for\r\npermitting the very continuance of the writ proceedings, the court is duty\r\nbound to consider and grant the plea for wages under Sec.17-B of the ID\r\nAct during the pendency of the challenge of the Labour Court award, at\r\nleast at the rate of the last drawn wages drawn by the workman at the time\r\nof termination of his services. Further, it is also well-settled that in rare\r\nand exceptional cases, where the workman is able to establish that the\r\nwages drawn by him at the time of his termination of service, may not be adequate for his livelihood, etc., then the writ court has even the\r\ndiscretion to order grant of wages, which is higher than the last drawn\r\nwages of the workman at the time of his termination from service. It is\r\nalso well-settled that even if ultimately the Labour Court award is\r\ndisturbed by the High Court or the Apex Court, as the case may be, in\r\nfavour of the management and against the workman, still the Sec.17-B\r\nwages at the rate of the last drawn wages at the time of termination of\r\nservice, is not to be refunded. At best, in a case where the wages so\r\nawarded were at a rate higher than the last drawn wages at the time of\r\ntermination of service is granted, etc., then where the Labour Court award\r\nis finally set aside by the writ court and the verdict is against the workman\r\nand in favour of the management, then the writ court may have to consider\r\nordering refund of the differential in the grant of the higher wages\r\nconcerned. It may be pertinent to refer to one of the landmark judgments\r\nof the Apex Court in the subject matter in the case in Ch.Saraiah v.\r\nExecutive Engineer. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. While construing the provisions in Sec.17-B of the ID Act,\r\ncourts will have to keep in mind the legislative policy enunciated by the\r\nParliament in the engraftment of beneficial provision like Sec.17-B of the\r\nID Act and it is not the mandate of Sec.17-B that the workman should not\r\ninvolve in any activity to make both his ends meet during the period he is\r\nto kept out of employment or that he should be deprived of all incomes\r\naltogether and merely because the workman engaged in some activity or\r\noccasion to eke out a livelihood, so long as it is not an employment under\r\nany establishment, it will not in any manner deprive him of the statutory\r\nbenefits of Sec.17-B. Otherwise it would amount to holding that the\r\nworkman will have to literally starve or beg or borrow money from others.\r\nIn that regard, it is pertinent to refer to a decision of this Court in the case\r\nin Jayaraman v. Quilon Gas Service [1995 (1) KLT 633], wherein the\r\nemployer contented that the workman is not entitled to get the benefits of\r\nSec.17-B of the ID Act, as he owns two autorikshaws and that he is having\r\nincome while being employed in a garment making unit owned by his wife\r\nand that he has substantial immovable properties, etc. This Court rejected\r\nthose objections of the employer and has held as follows in Jayaraman\'s\r\ncase supra [1995 (1) KLT 633] <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. The abovesaid decision of this Court in Jayaraman\'s case\r\nsupra [1995 (1) KLT 633], has been approved by the Division Bench of this\r\nCourt in para No.9 of the decision in Commandant, Defence Security\r\nv. Secretary, N.C.C.G.U.E Assn. [2001 (2) KLT 104 (DB)]. It may be\r\npertinent to refer to the legal principles laid down by the Division Bench of\r\nthis Court in CDS\'s case supra [2001 (2) KLT 104 (DB)],</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. We have considered the rival pleas and examined the facts of\r\nW.A No.43 of 2022\r\n12\r\nthe case in the light of the provisions contained in Sec.17-B of the\r\nIndustrial Disputes Act. The workman in his sworn affidavit before this\r\nCourt has stated that he is not employed in any establishment during the\r\nperiod of pendency of the present writ proceedings and that his last drawn\r\nwages prior to his termination from service was Rs.8,500/- p.m. There is\r\nno dispute about the latter aspect regarding the last drawn wages as above.\r\nThe main objections raised by the appellant-management to the plea for\r\nsuch statutory wages are those contained in para Nos.4 & 5 of the counter\r\naffidavit filed by them to oppose the plea in I.A No.1/2021 filed by the\r\nworkman in the above W.P(C) for grant of Sec.17B wages</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. It is asserted by Sri.Enoch David Simon Joel, learned Advocate\r\ninstructed and ably assisted by Ms.Suzanne Kurian, learned counsel\r\nappearing for the appellant that the crucial fact of the matter regarding the\r\nemployment of the workman in his wife\'s optical shop has been candidly\r\nadmitted by him in the deposition tendered before the Labour Court, etc.\r\nand our attention has been drawn to the contents of Ext.P-11 and its\r\ntranslated version given on page Nos.104-106 of the paper book of this\r\nappeal. It is also urged that it is the indisputable fact of the matter that the\r\nworkman is continuing to get rental income from two shop rooms owned\r\nby him. Hence, it is urged that these are sufficient materials which would\r\nclearly show that the workman was gainfully employed during the relevant\r\nperiod and that he is having sufficient means of livelihood and he cannot\r\nbe said to be entitled for the statutory wages in terms of Sec.17-B of the\r\nIndustrial Disputes Act during the pendency of the present writ\r\nproceedings, etc. We have anxiously considered the plea based on Ext.P-11 deposition.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. A reading of Ext.P-11 deposition of the workman would show\r\nthat the admission made by him is that he has two shop rooms owned by\r\nhim, for which he is deriving rental income and further that, his wife has\r\nan optical shop, meaning thereby that his wife is the proprietor of the\r\noptical shop. Further that, during the period when the wife is not keeping\r\nwell, he used to go to the optical shop to help her, etc. There is a further\r\nstatement in the deposition that the workman is not aware as to the\r\npresent management of the optical shop. We are told that the aspect that\r\nhe is not aware as to the present management of the optical shop, etc., is not in relation to the optical shop owned by the workman\'s wife, but\r\npresumably it can be in relation to the optical shop in question run by the\r\nappellant-management, etc. Hence, the crucial aspect of the matter\r\ndiscernible from Ext.P-11 deposition is that it is admitted by the workman\r\nthat his wife is owning an optical shop and that he used to go to that shop\r\nfor providing help to her whenever she is not keeping well. Hence, for the\r\nlimited purpose of appreciation of the present matter, we feel that what\r\nhas been admitted is that the wife indeed owns an optical shop and she is\r\nthe proprietor of the optical shop and that whenever she is not keeping\r\nwell, the workman used to go there to help her in her business. We have to\r\nbear in mind that Ext.P-11 deposition is rendered on 21.11.2016, well\r\nbefore the rendering of the impugned Ext.P-3 award by the Labour Court\r\non 24.12.2018. Even if for the sake of argument, we assume that the\r\nfactual scenario narrated in Ext.P-11 is prevalent even now, the same\r\ncannot amount to an admission by the workman that he is having\r\nemployment in the said optical shop or that he is having gainful\r\nemployment, etc. Further, the other admission made by the workman is\r\nthat he owned two shop rooms and that he is getting rental incomes from\r\nthose shop rooms. Even if it is assumed that the same position continues,\r\nit has to be borne in mind that the workman was getting rental income\r\neven during the abovesaid period of his employment and the mere fact that  he was getting rental income after the termination of employment, cannot be a\r\nfactor to defeat the right to statutory wages in terms of Sec.17B of the ID Act. As\r\nof now, there is no admission by the workman that he is employed in any\r\nestablishment or that he is employed in the optical shop room of his wife during\r\nthe pendency of the W.P(C). If the factual scenario in Ext.P-11 is assumed to be\r\nprevalent even now, at best it only states that he used to go to his wife\'s optical\r\nshop room to help her in her business whenever she is not keeping well. The\r\nsame cannot be treated as a material for the writ court to conclude that the\r\nworkman is employed in an establishment or even that he is having a gainful\r\nemployment, so as to dis-entitle him from statutory wages in terms of Sec.17-B\r\nof the Industrial Disputes Act. In this perspective of the matter, the learned\r\nSingle Judge cannot be seriously faulted for arriving at the considered view that\r\nthe workman is entitled for statutory wages in terms of Sec.17-B of the ID Act.\r\nAt any rate, the said view of the learned Single Judge as per the impugned\r\ninterim order cannot be seen by us in any manner as grossly illegal or manifestly\r\nunreasonable, etc. Accordingly, no grounds in public law remedy are made out\r\nso as to interfere with the matter in exercise of the appellate powers conferred on\r\nthis Court.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. As indicated hereinabove, the learned counsel appearing for the\r\nappellant has placed reliance on the judgment of a learned Single Judge of the\r\nDelhi High Court in the case in NNS Online Pvt. Ltd.\'s case supra, wherein\r\nendeavour has been made by the learned Single Judge to hold that even if the workman is not employed in an establishment, so long as he/she is having\r\ngainful employment by way of self employment, etc. and there is substantial\r\nincome, etc., then the same may dis-entitle the workman for claim of statutory\r\nwages in terms of Sec.17-B of the Industrial Disputes Act. In that case, the\r\nworkman concerned was shown to be running a highly successful newspaper\r\nestablishment, etc.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. Per contra, Sri.A.Jayasankar, learned counsel appearing for the\r\nrespondent-workman has said that the distinction between the employer and an\r\nestablishment, as envisaged in Sec.17-B of the ID Act and gainful employment by\r\nthe self employment, etc., cannot be treated to an equal level and the Parliament\r\nhas very carefully and guardedly used expression “employee in an\r\nestablishment” and the words used in Sec.17-B are not that the workman is\r\ngainfully employed by way of self employment, etc. and hence, the view\r\nexpressed by the learned Single Judge of the Delhi High Court may not be in\r\nconsonance with the statutory provision contained in Sec.17-B of the ID Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. After hearing both sides, we are of the view that the factual scenario\r\nof the present case is entirely different from the case decided by the learned\r\nSingle Judge of the Delhi High Court in NNS Online Pvt. Ltd.\'s case supra.\r\nThe gainful employment pleaded in NNS Online Pvt. Ltd.\'s case supra was\r\nthe claimed self employment of the workman who was shown to be running a\r\nhighly successful newspaper establishment, etc. Hence, there is no necessity to\r\ndecide as to whether the concept of gainful employment by way of self employment, would also partake within the ingredients of Sec.17-B of the\r\nIndustrial Disputes Act. The said issue does not arise for consideration in the\r\nfacts and circumstances of the instant case.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. However, we queried both sides as to whether both sides are ready\r\nfor the final disposal of the main matter in the W.P(C). Both sides are eager to\r\nensure the final disposal of the main matter. Hence, it is ordered that the\r\nRegistry may list the W.P(C) before the Single Bench concerned, which is dealing\r\nexclusively with hearing matters and not with the admission matters and listing\r\nmay be made within the next 6 to 8 weeks or so, depending upon the workload.\r\nAll endeavours may be made to ensure the final disposal of the main matter in\r\nthe W.P(C), without much delay.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. The upshot of the above discussion is that no interference is called\r\nfor in the impugned interim order rendered by the learned Single Judge.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>With these observations and directions, the above Writ Appeal will stand\r\ndismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8d1e5d433febd42f5271d79c1a6a1604.jpeg', '90d74964a1d0e2d49bba7537de90ce0e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-24', 1, '', '', '2022-03-21 17:23:46', '2022-03-24 15:49:53'),
(1469, 'tcQkCwF9LwwmEQEKlGL904SYd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Town Planning. Private land cannot be reserved under the Development Plan for indefinite period without acquisition depriving landowner from using his own land for years together. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Laxmikanth and others vs State of Maharashtra and Others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1965 of 2022 decided on 23 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemanth Gupta and Justice V. Ramasubramanian.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The challenge in the present appeal is to an order dated 6.8.2021\r\npassed by the High Court of Judicature at Bombay, Bench at\r\nAurangabad, holding that the reservation of land in the Development\r\nPlan stands lapsed as no declaration under Section 126 of the\r\nMaharashtra Regional and Town Planning Act, 19661\r\n was published.\r\nHowever, the Planning Authority was given one year time to acquire\r\nthe land once reserved relying upon the judgment of this Court\r\nreported as Municipal Corporation of Greater Mumbai & Ors. v.\r\nHiraman Sitaram Deorukhar & Ors.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> A final Development Plan was published under Section 31(6) <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the Act\r\n1 For short, the ‘Act which came into force on 18.2.2002 in respect of land\r\nincluding the land owned by the appellants such as Latur Reservation\r\nSite bearing No. 217 for playground. The appellants purchased the\r\nland bearing Plot Nos. 1, 2, 9 & 10 admeasuring 1394.05 square\r\nmeters out of Survey No. 73, admeasuring 6500 square meters on\r\n21.11.2002. Though the Development Plan was finalized, but the same\r\nwas never implemented nor any action was taken for acquisition of the\r\nland under the Land Acquisition Act, 1894. After expiry of ten years,\r\nthe appellants issued notice on 16.8.2016 under Section 127 of the Act\r\nso as to purchase the reserved land within one year of the date of the\r\nnotice. Such notice was acknowledged by the respondent Municipal\r\nCorporation on 20/22.8.2016 to submit measuring plan showing\r\nreservation thereon including the area owned by the appellants. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. It was thereafter that the appellants filed a writ petition before the\r\nHigh Court for a writ of mandamus directing the respondents to treat\r\nthe land of the appellants bearing Survey No. 73 as released from the\r\nDevelopment Plan of Latur Municipal Corporation and that reservation\r\nof Site No. 217 for playground be declared to have lapsed to the extent\r\nof the land owned by the appellants and that the land is available for\r\nthe residential use of the appellants. In the counter affidavit filed by\r\nthe Municipal Corporation, it was inter alia submitted that the proposal\r\nwas submitted to respondent No. 2 i.e., the Collector, Latur to take\r\neffective steps for acquiring the land bearing Survey No. 73 as the land <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was reserved for playground. The proposal was returned by the\r\nCompetent Authority but no effective decision has been taken over the\r\nsaid proposal.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Thus, it was beyond dispute that the land once included in the\r\nDevelopment Plan under Section 31(6) of the Act was not acquired\r\nwithin the period of ten years and within additional period of one year\r\nafter purchase notice was submitted by the appellants on 16.8.2016\r\nand, in fact, not till the writ petition was decided by the High Court.\r\nThe Municipal Corporation is not aggrieved against the declaration\r\ngranted by the High Court of the fact that the reservation of the land\r\nstands lapsed. It is only the land owner who has come in appeal before\r\nthis Court against the restriction of one year put by the High Court\r\ngiving additional time to respondents to acquire the land.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. This Court in Municipal Corporation of Greater Mumbai was\r\nexamining the reservation of land for a garden in a Development Plan\r\nin the year 1966 but the same was not acquired even after purchase\r\nnotice was served by the land owner. However, relying upon the\r\njudgment of this Court reported as Bangalore Medical Trust v. B.S.\r\nMuddappa & Ors. and some other judgments, it was held that the\r\nland reserved for public park cannot be permitted to be converted for\r\nother public purposes.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. We have heard learned counsel for the parties and find that the liberty\r\ngiven by the High Court to acquire the land within an additional period <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of one year is not contemplated by the statute. This Court in\r\nBangalore Medical Trust, a Public Interest Litigation, interfered with\r\nthe decision of the Bangalore Development Authority to convert the\r\nland reserved for public parks for the purposes of construction of a\r\nhospital. It was in these circumstances that this Court intervened,\r\nindicting the land reserved for public parks to be used for other\r\npurposes.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. This Court in Municipal Corporation of Greater Mumbai held that\r\nthe authorities have been given a duty to act as a cestui que trust\r\n(beneficiary of the trust) with respect to public park and had thus\r\ndirected to acquire land under the Right to Fair Compensation and\r\nTransparency in Land Acquisition, Rehabilitation and Resettlement Act,\r\n2013 within a period of six months. Such direction was given under\r\nArticle 142 of the Constitution of India keeping in view the facts of the\r\ncase. Such direction and period for acquisition of land is not a law\r\ndeclared by this Court which is to be treated as binding precedent for\r\nthis Court and the subordinate courts subordinate in terms of Article\r\n141 read with Article 144 of the Constitution. Therefore, once the Act\r\ndoes not contemplate any further period for acquisition, the Court\r\ncannot grant additional period for acquisition of land. The land was\r\nreserved for a public purpose way back in 2002. By such reservation,\r\nthe land owner could not use the land for any other purpose for ten\r\nyears. After the expiry of ten years, the land owner had served a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">notice calling upon the respondents to acquire the land but still the\r\nland was not acquired. The land owner cannot be deprived of the use\r\nof the land for years together. Once an embargo has been put on a\r\nland owner not to use the land in a particular manner, the said\r\nrestriction cannot be kept open-ended for indefinite period. The\r\nStatute has provided a period of ten years to acquire the land under\r\nSection 126 of the Act. Additional one year is granted to the land\r\nowner to serve a notice for acquisition prior to the amendment by\r\nMaharashtra Act No. 42 of 2015. Such time line is sacrosanct and has\r\nto be adhered to by the State or by the Authorities under the State.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The State or its functionaries cannot be directed to acquire the land as\r\nthe acquisition is on its satisfaction that the land is required for a\r\npublic purpose. If the State was inactive for long number of years, the\r\nCourts would not issue direction for acquisition of land, which is\r\nexercise of power of the State to invoke its rights of eminent domain.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. In view thereof, the direction to acquire land within a period of one\r\nyear is in fact contravening the time line fixed under the Statute.\r\nConsequently, the direction to acquire the land within one year is set\r\naside. The appeal is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '06620cf3f89734ac8b81bc0063ab3b7d.jpeg', 'e59d90e26d0225e1b6bea9adb6a6ef1a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-24', 1, '', '', '2022-03-24 17:17:16', '2022-03-24 10:27:26');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1452, 'o96E9eOMphcRY0MNkh7WFlrj5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Person carrying business in a name or style other than his own name can be sued either in his own name or in his assumed business name and style. Punjab and Haryana High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Radha Raman Industries Vs Manoj Trading Company.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">RSA 351 of 2016 decided on 29 August 2017.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Rajbir Sehrawat.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">This is an appeal filed by the defendant against the concurrent findings of both the Courts below and their judgments and decrees whereby the suit for recovery filed by the plaintiff-respondent herein was decreed and the appeal filed by the present appellantdefendant was also dismissed.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The facts mentioned, in brief, are that the plaintiff is a firm dealing in food grains, cereals, oil seeds etc. at New Anaj Mandi Palwal and the defendant is a firm being in the business of oil etc. The defendant-firm purchased mustard seed from the plaintiff for a total amount of `5,45,376/-. The defendant paid only a sum of `45,000/- on 15.03.2005, vide a pay order, and the remaining amount of `5,00,376/- was not paid by the defendant. Therefore, the plaintifffirm filed a suit for recovery along with interest.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The defendant filed a written statement. It did not dispute the supply of the material through the bills, Ex;P3 to P;13. However, it took the defence that it had paid the money against the valid receipts and therefore, nothing is due towards it which the plaintiff might be entitled to recover. Hence, the prayer for dismissal of the suit.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The parties led their respective evidence, to prove their case. The plaintiff proved the bills on record and understanding its onus to prove the payments, the defendant also examined DW-2 besides proprietor/partner. Both the parties examined the Hand Writing Expert also to prove/disprove the disputed signatures on the alleged receipts of payment. Both the Hand Writing Expert gave their contradictory reports regarding the signatures on the said receipts of payment.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The trial Court decreed the suit by believing the evidence of the plaintiff.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Aggrieved against the judgment and decree passed by the trial Court, the present appellant preferred an appeal before the lower Appellate Court. However, the lower Appellate Court also dismissed the appeal filed by the present appellant. Hence, the present appeal.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">The lower Appellate Court while appreciating the evidence on file, recorded a finding that the alleged payment receipts were not proved as per the law. It was further observed by the lower Appellate Court that the evidence of the present appellant was contradictory even to the pleadings taken by the present appellant in the written statement. It was recorded by the lower Appellate Court <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that in the pleadings the present appellant/defendant had taken a plea that the payments from the defendant were received by Manoj Kumar through his munim-Ashok Kumar. However, DW-2, Mohan Lal Goyal, the witness examined by the present appellant/defendant, has deposed that receipts were signed by Mukesh Kumar, the brother of Manoj Kumar and he signed in the presence of witnesses. Therefore, as per the learned lower Appellate Court, the statement being in contradiction to even the pleadings of the defendant, cannot be relied upon. Learned lower Appellate Court also recorded a finding that even on perusal, the signatures on the receipts do not tally with the signatures of the person </span></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">alleged to have signed these receipts. Hence, the appeal was dismissed</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">On perusal of the file, it is clear that there is no discrepancy, illegality or perversity in the findings recorded by the lower Appellate Court. Since the present appellant had admitted the receipt of goods and the liability to make the payment, therefore, it was for it to prove that the payment of the amount has been duly made to the plaintiff. For that purpose, it could have pleaded and proved before the Court that either the money was received by the plaintiff/firm or its proprietor/partner or by some person authorised by the firm or the proprietor/partner. However, there is no evidence led by the present appellant/defendant to prove this fact. The sole evidence led by the defendant is in the form of the alleged receipts of the payment of money; signed by some unknown persons. No name is mentioned in the receipts with the alleged signatures. The present appellant had claimed in the written statement that the money was received by Ashok Kumar on behalf of the firm/proprietor and that Ashok Kumar had put signatures on the receipts. However, the witness examined by the present appellant has deposed that the receipts were signed by one Mukesh Kumar. Therefore, the defendant itself is not clear as to whom it had made the payment, if at all, it made any payment. Otherwise, also the signatures on the receipts have rightly been disbelieved by the learned Courts below because the same is at variance in different aspects. </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Even if it is proved that the signatures on the receipts are of a particular persons, whether he is Ashok Kumar or Mukesh Kumar; then also there is neither any pleading nor any proof to show that either Ashok Kumar or the said, Mukesh Kumar was ever authorised by the firm or its proprietor/partner to receive the money on behalf of the firm or its proprietor/partner. In the absence of such authority being proved by the present appellant; even if the payments are made by him to some person, the same cannot be said to be the payments made to the plaintiff/firm or its proprietor/partner. By any means, the present appellant/defendant had failed to rebut any aspect of the case of the plaintiff. Therefore, both the Courts below have rightly decreed the suit against the present appellantdefendant.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">As the last resort, learned counsel for the appellant relied upon the judgment of Hon\'ble Bombay High Court reported in 2003 (4)ALL MR 672 titled as Municipal Council, Tiroda Versus K. Ravindra and Company; to contend that the proprietary firm could not have filed a suit for recovery and the suit has to be brought in the name of the proprietor only. He has further referred to Order 30 Rule 1 and Rule 10 of Code of Civil Procedure to buttress his claim.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">However, the judgment of Hon\'ble Bombay High Court does not come to the rescue of the present appellant because that judgment related to a proprietary concern; the status and identity of which itself was not clear in the title of that suit. Resultantly, the Bombay High Court granted liberty to clear the identity of the plaintiff/firm by adding the name of proprietor in the title of the suit. In the present case, the identity of the plaintiff/firm is already clear; since the suit has been filed by the plaintiff/firm through its proprietor, Manoj Kumar. Such a clarified title of the suit was held to be maintainable even by the Bombay High Court.<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">The Hon\'ble Bombay High Court based its judgment on a preposition that the suit cannot be brought by a person in his assumed name and even if he is working in his assumed name, like a firm, then also he has to bring the suit in his own name. Reliance appears to be upon Order 30 Rule 10 of Code of Civil Procedure, since no other provision is mentioned in the judgment to support it.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">However, in view of this Court, the Order 30 Rule 10 does not create any bar against a person for bringing a suit in the name of a firm/proprietary concern or in the assumed business name of the sole proprietor.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">For the purpose of proper appreciation of this preposition, it is relevant to have a reference of the provisions contained in Order 30 Rule 1 and Order 30 Rule 10 of Code of Civil Procedure.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The provisions are reproduced herein below:- </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">“Suing of partners in name of firm.-</span></span></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">(1) Any two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing the cause of action, and any party to a suit may in such case apply to the court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the court may direct. </span></span></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">(2) Where persons sue or are sued as partners in the name of their firm under sub-rule (1), it shall, in the case of any pleading or other document required by or under this Code to be signed, verified or certified by the plaintiff or the defendant, suffice if such pleading or other document is signed, verified or certified by any one of such persons. Suits against person carrying on business In name other than his own.- Any person carrying on business in a name or style other than his own name, or a Hindu undivided family carrying on business under any name, may be sued in such name or style as it were a firm name, and, In so far as the nature of such case permits, all rules under this Order shall apply accordingly.”</span></span></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"background-color: rgb(255, 255, 0);\">A bare perusal of the above said provisions makes it clear that a firm or a partner of a firm can very well bring a suit as per the provisions of Order 30 Rule 1 of Code of Civil Procedure. There is no part of this provision which might be interpreted to be prohibiting a suit by a partner or the firm itself or even by a proprietary concern; in its own name. Rather, this provision only creates a statutory backing for a suit to be brought by the firm and the partner </span><span style=\"font-size: 12pt;\"><span style=\"background-color: rgb(255, 255, 0);\">rather says that if a person is carrying business in a name or style other than his own name; then that person can be sued either in his own name or in his assumed business name and style; which he was holding out to the rest of world for the purpose of business. The intention of this provision is that if a person carries on a business in a name other than his own name, then that person should not be able to avoid the liability just by taking a plea that the assumed name does not belong to him. This provision entitles plaintiff; suing against such person; even in his assumed name so that such a person cannot take a plea to the contrary to avoid his liability. Hence, this provision has, in fact, created a legal person in the form of assumed business name or style of a person and has raised the assumed business name of a person to level of a firm</span>.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-size: 12pt;\">However, this provision, by any means, cannot be read to mean that a person carrying on business through a proprietary concern cannot sue other person in the name of his proprietary concern for his entitlements from the business carried through the proprietary concern. Rather conversely, such a person suing through a firm gets support and locus standi to file a suit by virtue of Order 30 Rule 10 because if his assumed name and style is treated as a legal person for being sued against then as a natural extension thereof his assumed name has to be treated a legal person for filing a suit by him as well. Any other interpretation would go against the express provisions of the Code of Civil Procedure. To counter, this interpretation the learned counsel for the appellant has relied upon the judgment of the Hon\'ble Supreme Court rendered in (2012) </span><span style=\"font-size: 12pt;\">So far as Order 30 Rule 10 is concerned, this provision only relates to the proprietary concern being \'sued against\' by a person having claim against such firm or concern. This provision </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">SCC 196 titled as Rasiklal Manikchand Dhariwal Versus M.S.S. Food Products, wherein there is an observation that although Order 30 Rule 10 makes an enabling provision for a proprietary concern or assumed name to be sued against but the analogy of enabling provision in Rule 10 can not be extended to plaintiff filing suit in the name other than his own name.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">However, a bare perusal of this judgment also shows that the Hon\'ble Supreme Court held the suit in that case to be legal although the same was in the name of the proprietary concern of the sole proprietor, but the concern had sued through its sole proprietor. Hence, that judgment of the Hon\'ble Supreme Court cannot be interpreted to lay down, as absolute law, that the proprietary concern or the assumed name of person can not come before the Court as plaintiff. Otherwise also, the observation of the Hon\'ble Supreme Court has come only qua the bare provision of Order 30 Rule 10, which of course, does not have enabling provision for the proprietary concern or the assumed name of a person to bring a suit. But the Hon\'ble Supreme Court has not laid down it as a judicial precedent. Neither all the relevant provisions were argued before the Hon\'ble Supreme Court nor has the Hon\'ble Supreme Court considered the same for the purpose of creating a precedent on this point, because the Hon\'ble Supreme Court had found the suit in that case to be, otherwise, legally brought and hence, maintainable.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">A proprietary concern or assumed name of the sole proprietor, when arrayed as a defendant under Order 30 Rule 10, would also get a right to file a counter claim under Order 8 Rule 6 A </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of Code of Civil Procedure</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">A bare perusal of provision contained in Sub Clause (2) of Order 8 Rule 6A makes it clear that the counter claim filed by a defendant shall have the effect of a cross suit on behalf of the defendant. Therefore, if a proprietary concern, sued against Under Order 30 Rule 10; has got a right to file a cross suit as a defendant under the above said provision. In such a situation, it shall be totally irrational to hold that the proprietary concern cannot file a suit as plaintiff. If an entity is treated as a legal person and a plaintiff for the purpose of cross suit then there is nothing to prevent such an entity to come as plaintiff in the first instance. Otherwise, also no specific provision in statutory law has been pointed out by the learned counsel prohibiting a suit by a proprietary concern or the assumed business name or style of a sole person. On the contrary it is well settled law that the suit by the proprietary concern is a suit by its sole proprietor and the suit by the sole proprietor is a suit by his proprietary concern. Both are the same thing for the purpose of the proceedings before the Court of Law. Any \'person\' is entitled to file a suit for his or its entitlements against the defendant unless the suit is prohibited by some specific provision of law. As per General Clauses Act, Section 3 (42) even incorporation is not necessary for an entity to claim the status of a \'person\' so even un-incorporated entity can file suit unless specifically prohibited by statutory law.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Hence, a suit by a proprietary concern of sole proprietor or by the assumed business name or style of a person is very much maintainable. However, since the sole proprietary concern or the assumed business name is owned by a single individual, so while filing a suit in the name of proprietary concern or assumed business name the complete details of the owner of the proprietary concern or assumed business name shall be required to the disclosed in the plaint as required Under Order 7 Rule 1 of the Code of Civil Procedure to establish the identity of the owner of the proprietary concern or the assumed business name.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">In case of proprietary firm, if the relationship between the firm and the proprietor is clear and not in dispute then it does not matter whether the suit is brought in the name of the firm or the proprietor, which is one and the same thing. In the present case also 10 of 11  the suit by the proprietary firm is through sole proprietor giving complete details. So the suit by the proprietary concern in the present case is maintainable.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">No other point was argued by the learned counsel for the appellant.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">In view of the above, the present appeal fails and the same is hereby dismissed. </span></p>', '0d338d78b6bccf48d09adda77ef715eb.jpeg', '6418829822e817c304e291f5e62d0b1b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-23', 1, '', '', '2022-03-21 18:20:03', '2022-03-23 21:24:49');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1453, 'eJLfFP9nlBKdaS5DmT6i07cKB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Defendant can NOT make counter claim against co-defendant. Counter claim can be made only against plaintiff. Punjab and Haryana High Court.   ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Soma Devi Vs Kashmiri Lal and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>RSA 2643 of 2012 decided on 27 July 2017.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Rajbir Sehrawat.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This is the second appeal filed by defendant No. 1 in the suit\r\nagainst a judgment and decree whereby the lower Appelalte Court has\r\nreversed the decree passed in her favour by the Trial Court in her counter\r\nclaim.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>For the reference in the present appeal, the parties would be\r\nreferred to as the plaintiff and defendant No. 1 and defendant No. 2 as\r\ndescribed in the original plaint.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The fact of the, case as mentioned in the judgment of the lower\r\nAppellate Court, are that the suit was filed by one Baljeet against Soma\r\nDevi, defendant No.1 (the present appellant) and Kashmiri Lal, defendant\r\nNo. 2 (respondent No. 1 in the present appeal) alleging that he was owner in&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">possession of the residential house situated at Sodagran Mohalla, Ravidass\r\nNagar, Thanesar, District Kurukshetra. The patnala (water outlet) and the\r\nventilator of the house of the plaintiff open on the back side in a common\r\n\'gher\' (common yard). It was further pleaded that on the southern side there\r\nwas house of defendant No. 1 and on the eastern side there was house of\r\ndefendant No. 2. It was further pleaded that the ventilator and the water\r\noutlet of his house in the common yard were in existence for the last 50\r\nyears. It was further pleaded that defendant No. 1; in collusion with\r\ndefendant No. 2 wanted to grab whole of the common yard shown in red\r\ncolour in the site plan attached in the plaint. It was further pleaded that the\r\ndefendants had constructed two pillars and they wanted to close down the\r\nventilator and the water outlet of the plaintiff towards the common yard.\r\nTherefore, the injunction was prayed for.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Defendant No. 2 filed written statement on 13.06.2006 wherein he\r\nclaimed that the plaintiff had not come to the Court with clean hands. It was\r\nfurther pleaded that the alleged portion of common yard was exclusively in\r\nthe use of defendants No. 1 and 2. It was further pleaded that a wall is\r\nexisting between the house of defendant No. 1 and defendant No. 2 and\r\ntheir houses were adjoining each other. It was further claimed by defendant\r\nNo. 2 that just to harass him and to grab the suit land the plaintiff has moved\r\nthe Court without any cause of action. The existence of any common yard\r\nwas denied by defendant No. 2. It was further claimed that the plaintiff had\r\nno right to create nuisance and that defendant No. 2 had every legal right to\r\nuse the property in the manner he liked; being full owner of the suit\r\nproperty. Defendant No. 2 denied the existence of ventilator and the water\r\noutlet as claimed by the plaintiff. Accordingly, he prayed for dismissal of&nbsp; the suit.&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>After defendant No. 2 had filed written statement then defendant\r\nNo. 1 filed her written statement on 24.08.2006 wherein she also claimed\r\nthat the plaintiff was neither owner in possession of the suit property nor\r\nwas there a common yard. It was further claimed by defendant No. 1 that\r\nthe ventilator and the water outlet has been created by the plaintiff forcibly\r\nand illegally without any right, title or interest in the suit property. Earlier\r\nher mother was residing alone in the house adjoining this alleged common\r\nyard and defendant No. 1 was away from home due to work. Taking\r\nadvantage of this situation the plaintiff had installed this ventilator and the\r\nwater outlet. It was claimed by defendant No. 1 that previously there was\r\n\'Chabutra\' being used by Smt. Bhagti Devi widow of Daulat Ram son of\r\nHira Lal, resident of House No. 2889/5, Ravi Dass Nagar, Thanesar.\r\nHowever, that house alongwith \'Chabutra\' was purchased by the mother of\r\ndefendant No. 1. The defendant No. 1 and her mother were in possession of\r\nthe suit property in question. Later on, the house purchased by mother of\r\ndefendant No. 1 was gifted by her to defendant No. 1. Hence, defendant\r\nNo. 1 was the owner in possession of the suit property. She also claimed\r\nthat even defendant No. 2 had raised construction of wall of approximately\r\n2.5 feet in width and 9.3 feet in length. It was further claimed that\r\ndefendant No. 1 had asked the plaintiff and defendant No. 2 not to harass\r\nher and to remove the ventilator, water outlet and the wall created by\r\ndefendant No.2. However, they colluded with each other and have filed the\r\nsuit. Alongwith the written statement the defendant No. 1 also filed\r\ncounter-claim alleging that she was the owner in possession of the property\r\nmarked by letters ABCD shown in red colour in the site plan and the same is&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the part of the house of defendant No. 1. Plaintiff and defendant No. 2 have\r\nno right, title or interest in the suit porperty. Therefore, defendant No. 1\r\nsought an injunction directing the plaintiff to close the ventilator and the\r\nwater outlet and direction to the defendant No. 2 to remove the illegal\r\nconstruction made by him on the part of the land; which was approximately\r\n2.5 feet in width and 9.3 feet in length and further for restoring the\r\npossession of the same to defendant No. 1.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>After hearing learned counsel for the plaintiff and the defendant\r\nNo. 1 the Trial Court dismissed the suit filed by the plaintiff and held that\r\nthe plaintiff has failed to prove on record that he was the exclusive owner of\r\nthe property in question. However, the counter-claim filed by defendant\r\nNo. 1 was allowed by holding that defendant No. 1 has proved on record, by\r\nsufficient oral and documentary evidence, her ownership over the suit land.\r\nIt was held that Ex:D-1 i.e. Deed of purchase by mother of defendant No. 1\r\nshows that house in question was purchased alongwith \'Chabutra\' and the\r\nsame property was given to defendant No. 1, Soma Devi, by her mother.\r\nHence a decree was passed directing the plaintiff to close the patnala (water\r\noutlet) and the ventilator and also directing defendant No. 2 to remove the\r\nillegal construction made by him on part of the suit land.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Aggrieved against judgment and decree passed by the Trial Court,\r\ndefendant No. 2, Kashmiri Lal, filed an appeal before the lower Appellate\r\nCourt. However, Baljeet, who was the plaintiff in the suit had not filed any appeal against the dismissal of his suit. Therefore, the appeal before the\r\nlower Appellate Court was against allowing the counter-claim of defendant\r\nNo. 1 against defendant No.2. The lower Appellate Court allowed the\r\nappeal filed by defendant No. 2 and set aside the judgment and decree\r\npassed by the Trial Court qua defendant No. 2. One of the grounds recorded\r\nfor setting aside the judgment and decree qua defendant No. 2 is that the\r\ncounter claim could not have been filed against him, he being a codefendant and the claim against him being an independent claim; having no\r\nrelation with the claim raised by the plaintiff in the suit. However, liberty\r\nwas granted to defendant No. 1, to seek her remedy against defendant No. 2\r\nby filing a separate suit. Besides this a further direction was also issued\r\nagainst defendant No. 1 and she was directed to restore the original position\r\nof the open yard; which was claimed to be the suit property in the case.\r\nChallenging this judgment, defendant No. 1 has filed the present appeal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Learned counsel for the appellant submits that the lower\r\nAppellate Court has wrongly held that the appellant could not have filed a\r\ncounter claim against her co-defendant. He has submitted that the counter\r\nclaim against a co-defendant is very much maintainable. It is his\r\nsubmission that the provision of counter claim has been made to reduce the\r\nlitigation and to ensure that the dispute is decided in one go. To buttress his\r\nargument, learned counsel for the appellant places reliance on the judgment\r\nof Keral High Court reported in 2017(1) ILR (Kerala) 454 titled as\r\nPulikkipoyil Salsamath Usman and another vs. Pulikkipoyil Moideen\r\nKunhi and others. He further relies upon the judgment of Jharkhand High\r\nCourt reported in 2012(4) CivCC 765 titled as Anil Kumar Mehra vs.\r\nRameshwar Prasad Mehta and others and submits that where the counter&nbsp; claim is mainly filed against plaintiff in the suit but some incidental relief is\r\nclaimed against a co-defendant; in that situation a counter claim against codefendant is maintainable. This judgment of the Jharkhand High Court\r\nfurther relies upon the judgment of the Hon\'ble Supreme Court rendered in\r\n(2006) 12 SCC 734 titled as Rohit Singh and others versus State of Bihar\r\n(now State of Jharkhand) and others. Learned counsel for the appellant\r\nfurther argues that even the Hon\'ble Supreme Court has held that a counter\r\nclaim against a co-defendant is permissible. To the same effect, he relies\r\nupon the judgment of the Patna High Court reported in 2008 AIR (Patna)\r\n55 titled as Bhagmati Devi vs. Anandi Devi and Ors.. Still further the\r\nreliance is placed on the judgment of this Court rendered in 2015(3) PLR\r\n706 titeld as Som Pal vs. Kashmiri Lal and others<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>&nbsp;The next contention of learned counsel for the appellant is that\r\neven if the lower Appellate Court was to set aside the judgment and decree\r\nof the Trial Court; in her counter claim; then also the lower Appellate Court\r\nhas erred and issuing further direction to her to restore the original position\r\nof the common yard. It is submitted by learned counsel for the appellant\r\nthat this was not even the claim of the appellant before the lower Appellate\r\nCourt. Hence, the relief granted was even beyond the claim made by\r\ndefendant No. 2 before the lower Appellate Court and the Trial Court in the\r\nsuit. Hence, it is submitted by him that the judgment and decree passed by\r\nthe Trial Court be restored.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>On the other hand, learned counsel for respondent No. 1 has\r\nsubmitted that the lower Appellate Court has rightly held that no counter\r\nclaim is maintainable against a co-defendants. Still further it was submitted\r\nby him that lower Appellate Court has rightly recorded that counter claim was filed behind the back of defendant No. 2 and he was not even given any\r\nnotice regarding the counter claim filed against him. Defendant No. 2 did\r\nnot even have the knowledge of the counter claim; since he had been\r\nproceeded ex parte due to communication gap with his counsel. It is\r\nfurther submitted by him that the direction regarding restoration of the\r\noriginal position of the common yard by the lower Appellate Court is also\r\nperfectly legal and right</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Having heard the learned counsel for the parties and perusing the\r\nrecord with their able assistance, this Court finds that the submission of\r\nlearned counsel for the appellant requires partial acceptance and the\r\nrejection regarding the remaining aspects. So far as the argument of learned\r\ncounsel for the appellant that counter claim against a co-defendant is\r\nmaintianable is concerned, the same is liable to be rejected. The provision\r\nrelating to filing of the counter claim is contained in Order VIII Rule 6A to\r\n6G of the CPC.&nbsp;<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"background-color: rgb(255, 255, 0);\">A bare perusal of this provision shows that a counter claim can be\r\nfiled against the claim of the plaintiff and it can be filed regarding a cause of\r\naction accruing to defendant against the plaintiff. Therefore, there is no\r\nquestion of a counter claim being permissible against a co-defendant by a\r\ndefendant in the suit. Still further perusal of the provision contained in Rule\r\n6A(3) shows that in case the counter claim is filed by the defendant then\r\nplaintiff shall be at liberty to file written statement in answer to the counter\r\nclaim. Still further the provision contained in Rule 6C gives entitlement to\r\nthe plaintiff to raise an objection to the counter claim filed by the defendant\r\nbefore the issues are framed in relation to the counter claim and the plaintiff\r\ncan make a claim that counter claim of defendant be excluded from his suit\r\nand the defendant filing the counter claim may file a separate suit if he so\r\ndesires. Still further Rule 6E shows that if the plaintiff defaults in filing\r\nreply to the counter claim; the Court may pronounce the judgment against\r\nthe plaintiff in relation to the counter calim made against him. Even Rule\r\n6F shows that the relief to be granted in the counter claim is against the\r\nplaintiff.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Hence a bare perusal of the claim of Order VIII Rule 6A to 6G\r\nshows that it is only the plaintiff; against whom a counter claim is\r\npermissible. It is only the plaintiff who has been given a right to file reply\r\nto the counter claim. It is only the plaintiff who can make an application for\r\nrejection of the counter claim on the ground that the defendant may file a&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">separate suit and it is only the plaintiff, on whose default to file the written\r\nstatement, the Court can pass a judgment against the plaintiff and it is only\r\nthe plaintiff against whom any balance, which is found due after adjusting\r\nthe counter claim, can be granted to the person who is filing the counter\r\nclaim. In this entire scheme, nowhere a co-defendant is contemplated as a\r\nperson required to suffer a counter claim against him by another codefendant. In case defendant files a counter claim against a co-defedant\r\nthen co-defendant has not been given any right to file written statement to\r\nthe counter-claim under Order VIII Rule 6A. Nor has a defendant been\r\ngiven any entitlement to make an application for exclusion of a counter\r\nclaim filed by co-defendant against him. Nor the default of a defendant to\r\nfile written statement in counter claim by a co-defendant, is prescribed as a\r\nground for pronouncing a judgment against such a co-defendant. Even the\r\nbalance of the relief after adjustment of counter claim is not contemplated\r\nto be granted against a co-defendant by the CPC. Therefore, expressely, no\r\nprovision is made for permitting a counter claim by a defendant against his\r\nco-defendant.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Even impliedly the provision for permitting counter-claim against\r\nco-defendant cannot be read into the statute book for the simple reason that\r\nsuch an implied presumption would go totally in contravention with the\r\nother provisions of the Order VIII Rule 6A to 6G. If any counter claim by\r\nthe defendant against his co-defendant is entertained by the Court then the\r\nCourt would be finding itself in an absurd situation where the Court would\r\nnot be authorised to permit filing written statement against the counter claim\r\nby the co-defendant, the Court would not be authorised to permit a\r\ndefendant to move an application for exclusion of the counter claim by the&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">co-defendant and the Court would not be authorised to grant relief against\r\nco-defendant. For assuming all these powers with court, again an implied\r\npresumption will have to be made that Court has all these powers because it\r\nhas permitted the counter claim to be filed against a co-defendant. This\r\nmuch of interpolation and reading into the statute which is neither required\r\nnor is necessary and, rather, is prohibited by the law of interpretation. Any\r\nommission to legislation a point has to be presumed to be intentional on the\r\npart of the legislature or the rules framing authority. Any defendant has,\r\notherwise, full right to file a separate suit against a co-defendant for any\r\ncause of action. Therefore, no such interpolation of words and phrases in\r\nOrder 8 Rule 6A to 6G is called for or permissible. Hence it is held that a\r\ndefendant cannot file a counter claim against a co-defendant under any\r\ncircumstances. Order VIII Rule 6A to 6G provide for and conceive of only\r\na counter claim to be filed by the defendant against the claim of the\r\nplaintiff. Hence the counter claim against the co-defendant in the present\r\ncase was not maintainable.&nbsp;</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Creating an independent right in favour of a defendant to file a\r\ncounter claim against a co-defendant is altogether different matter then the\r\npower of the Court to grant an incidental relief against a co-defendant also&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">while considering the counter claim of the defendant against the plaintiff.\r\nThe Court always has a power to pass an order of incidental relief while\r\ngranting the main relief in favour of a party. However, this relief has to be\r\npurely incidental to the main relief being granted by the Court. In a suit if\r\nthe defendant files a counter claim against a plaintiff then Court can grant\r\nrelief against the plaintiff, and any other relief; incidental to such main relief\r\nbeing granted against the plaintiff, can also be granted against a codefendant. For that purpose not even counter claiim is required. Hence, to\r\nsay that since the Court can grant an incidenal relief against a co-defendant,\r\ntherefore, a counter claim against co-defendant is maintainable; would be\r\nonly a jurisprudential distortion. Hence it has to be held that even for such\r\nincidental relief; which Court may ultimately grant in a counter claim\r\nagainst plaintiff, an independent counter-claim by a defendant against a codefendant is not maintainable, in the independent capacity of a codefendant. But the incidental relief, to the main relief which has been\r\ngranted against the plaintiff may be directed by the Court even against a codefendant, in his capacity as claiming through the plaintiff, if any.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Hence the lower Appellate Court has not committed any illegality\r\nperversity in holding that counter claim against a co-defendant itself was not\r\nmaintainable. Otherwise also, lower Appellate Court has given sufficient\r\nreasons for setting aside the decree passed in the counter claim on the\r\nground that defendant No. 2 did not get proper and sufficient opportunity to\r\nanswer the counter claim filed by defendant No. 1. However, the right of\r\ndefendant No. 1/appellant herein to file fresh suit against the defendant, if\r\nso desired, was rightly protected by the lower Appellate Court. The\r\njudgment and decree passed by the lower Appellate Court, to that extent, are upheld.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>However, the next argument of learned counsel for the appellant\r\nthat the lower Appellate Court has exceeded its jurisdiction in issuing\r\nfurther direction to defendant No. 1 to restore the original position of the\r\ncommon yard; deserves to be accepted. There was no occasion for the\r\nlower Appellate Court to venture into issuance of this direction. It was\r\nneither the claim of defendant No. 2 before the Trial Court nor in appeal\r\nbefore the lower Appellate Court nor had the plaintiff filed any appeal\r\nagainst dismissal of his suit by the Trial Court. The Court was considering\r\nthe judgment and decree passed on the counter claim filed by defendant\r\nNo.1. At the best the lower Appellate Court could have dismissed the\r\ncounter claim filed by defendant No. 1 and could have passed the decree\r\naccordingly. The direction to and decree against defendant No. 1 to restore\r\nthe original position of the common yard is patently beyond the pleading\r\nand evidence in the case, as well as, beyond the scope of the appeal which\r\nwas being considered by the lower Appellate Court. Hence this direction\r\nissued by lower Appellate Court is set aside. However, for this purpose the\r\nparties would be at liberty to avail their remedies in accordance with law for\r\nthe same relief, if they so desire.\r\nIn view of the above, the findings, judgment and decree passed by\r\nthe lower Appellate Court are modified accordingly.\r\nNo other argument was raised by learned counsel for the parties.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In view of the above, the appeal is partly accepted, to the extent of\r\nsetting aside the direction to the appellant, to restore the original position of\r\nthe suit property. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Qua the other part, the appeal is dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\"><br></span><span style=\"font-size: 12pt;\">However, it is\r\nmade clear that the parties would be at liberty to avail their remedies regarding the suit property, independently, if they so considered\r\nappropriate.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '719c641a2ac8565e2b80bde99cafae89.JPG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-21', 1, '', '', '2022-03-21 18:50:00', '2022-03-22 09:25:12'),
(1454, 'YVYna6UxarOQFBzVoPHV4VEKM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. In order to institute or defend a suit against deity or idol, leave has to be obtained under Order I Rule 8 and the deity or idol should be made party represented by a competent person. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>T.Madhu Thankappan Vs K.K Suresh Kamalakaran and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ex F.A 4 of 2021 decided on 26 August 2021.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P. Somarajan.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Two devotees of a public temple representing the\r\ndeity by name Sree Khandakarna Kshethram, Kanjiramchira,\r\nAlappuzha came up with a petition under Order XXI\r\nRule 97 C.P.C. obstructing the delivery of a portion of\r\nproperty belonged to the deity in execution of a money\r\ndecree. It was dismissed by the Sub Judge on the ground\r\nthat no document was produced by the petitioners to show\r\ntheir right, title or interest over the property to\r\nobstruct the delivery. The fundamental principles\r\ngoverning a perpectual minor and competency of a devotee\r\nto represent the deity/idol in a legal proceedings, the\r\nbinding force of a decree against a perpectual minor and\r\nthe legal entity of an idol in a public temple, though\r\nraised, were not even taken into consideration in the\r\nimpugned order. It is unfortunate that the officer (Sub\r\nJudge concerned) did not even go into the abovesaid\r\nissues or understand the dispute involved in the\r\npetition, but dismissed the same on an extraneous ground\r\nthat none of the claim petitioners produced any document of their right, title or interest to obstruct delivery.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n2. It is a case wherein a decree is sought to be\r\nexecuted against the property held by a public temple and\r\nthe idol thereof. Neither the public temple nor the idol\r\nwas made as a party to the suit or the decree thereof.\r\nIt is a money decree against two unincorporated\r\nassociations named after the temple viz., Sree\r\nKhandakarna Kshethrayogam, Kanjiramchira, Alappuzha\r\nrepresented by its President P.Rajeev, its Secretary\r\nS.N.Thyagarajan, the first defendant and The Sreepadam\r\nFunds, Kanjiramchira, Alappuzha represented by Chairman\r\nV.V.Viswan, the second defendant. Since the defendants\r\nare unregistered and unincorporated associations, leave\r\nwas granted to institute the suit under Order I Rule 8\r\nC.P.C.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. It is submitted by the respondent/decree holder\r\nthat since there is a publication under Order I Rule 8\r\nC.P.C., the claim petitioners are bound by the decree\r\nthough the idol or the public temple was not made as a\r\nparty to the suit or the decree thereof. The said\r\ncontention is not seen either taken up or discussed by\r\nthe Sub Judge who passed the impugned order. The purpose of Order I Rule 8 CPC is to give notice to all interested\r\npersons, when there are numerous persons having the same\r\ninterest in one suit. The expression “on behalf of”\r\nincorporated in Rule 8(1) of Order I C.P.C. must be\r\nappreciated and understood in relation to the words\r\n“having the same interest in one suit”. Order I Rule 8\r\nC.P.C. would operate only against a person, who is having\r\nthe same interest as that of a person, who was permitted\r\nto either institute a suit or defend a suit in a\r\nrepresentative capacity and it will not have any\r\noperation or binding force to any other person who is\r\nhaving a different interest. Necessarily, the binding\r\nnature of the suit or the decree, if any, passed therein\r\nin compliance with Order I Rule 8 C.P.C. must be\r\nunderstood as binding on only those persons in whose\r\nbehalf the suit was instituted or defended in a\r\nrepresentative capacity having the “same interest” and\r\nnone else.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\" style=\"background-color: rgb(255, 255, 0);\"><b>4. The deity or the public temple was not made as a\r\nparty to the suit and no leave was obtained to institute\r\na suit in a representative capacity as against the idol\r\nor the public temple, though the idol would constitute a jural and legal entity as a perpectual minor. Since the\r\ndevotees are numerous, a fluctuating body, of course, in\r\norder to institute or defend a suit against the deity or\r\nidol, leave has to be obtained under Order I Rule 8\r\nC.P.C., for which, the deity or idol should be in the\r\nparty array and the suit must be one either by the idol\r\nor against the idol represented by a competent person.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. In the instant case, the deity or the idol or\r\nthe temple is not in the party array. Two unincorporated\r\nassociations named after the temple were made as the\r\ndefendants and it is a money decree against the above said\r\ntwo unincorporated associations and it would bind only on\r\nthe persons who are the members of the unincorporated\r\nassociations or having interest thereof.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n6. Further, Ext.A1 document purported to be a\r\nsettlement deed has not been taken into consideration by\r\nthe court below. It is based on Ext.A1 deed, the prior\r\nowners of the family temple entrusted the temple and its\r\nproperties to the public for the welfare of the deity and\r\nits devotees. Party Nos.6 to 11 in the document were\r\ninitially entrusted with the administration with a\r\nstipulation that 35 members should be elected from the general public for administering the temple and thereby\r\ncreated a public trust. Ext.A1 document is of the year\r\n1121ME. Hence the money decree against two unincorporated\r\nassociations, though named after the deity, cannot be\r\nexecuted against the deity or the idol. It is so strange\r\nenough that the court below observed that PW1 obstructed\r\nthe delivery, even though he is not a member of the\r\nExecutive Committee and had admitted that the temple is\r\nbeing managed by the administrative committee. The well\r\nsettled legal principle is that even a worshipper or a\r\ndevotee can also maintain a legal proceeding, when there\r\nis failure on the part of the administrative committee or\r\nthe committee constituted for its administration or on a\r\nbreach of trust. Hence, the resistance and obstruction\r\noffered by the petitioners are lawful as the decree\r\ncannot be executed against the properties of idol, who\r\nare not bound by the decree. The execution proceedings\r\ninitiated against the idol and its property are hence\r\nliable to be set aside. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Hence, the dismissal of the\r\napplication under Order XXI Rule 97 C.P.C. against the\r\npetitioners cannot be sustained. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>E.A.No.399/2016 will\r\nstand allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The appeal is allowed accordingly.The Registry is directed to forward a copy of this\r\njudgment to the Directorate of Training attached to this\r\nCourt for future guidance while imparting training to the\r\njudicial officers.</b></span></p>', '70e6e13207cd8fd0e61e49ce20d5b950.jpeg', 'e1cfff747d69a33da5da3485e7a0e028.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-21', 1, '', '', '2022-03-21 20:39:10', '2022-03-22 11:22:50');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1455, 'imYx1GHhjOSMFzfqotJdZkF7E', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Election petition. Defeated candidate securing zero vote in a booth does not give rise to assumption of bogus voting. Suspicion does not take the place of evidence. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Abdul Majeed Hasainar Vs Tanvver Sait and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Election Petition 2 of 2018 decided on 2 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The petitioner contested from Narasimharaja Constituency in Mysuru city, to  the  elections held  to the Karnataka Legislative Assembly on 12.05.2018 He was a candidate sponsored  by Social Democratic Party of India. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The counting of the votes was held on 15.05.2018.The respondents 1 to 14 were  the other candidates in the election fray. First respondent was declared elected; he won by a margin of 18127 votes. If the third respondent was the first runner up, the petitioner secured the third place and that the total number of votes secured by him was 33284.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17.  The petitioner summoned the Presiding Officer of booth 97 to give evidence. He was examined as PW4. At  the  instance  of  the petitioner, the Register of Voters was also summoned from the Office of District Election Officer. Ex.P.12 is the  Register  of  Voters. The  main purpose of examining PW.4 was to mark an  entry  as per Ex.P.12( b) at Sl. No.70 in Ex.P.12 . Seeing Ex.P.12 (b), PW.4 answer that ID card number written at Sl.No.70 did not tally with ID  card  number mentioned in Ex.P. 8. If these entries are examined, what appears is, at Sl.No. 70, the serial number of the elector in electoral roll is written as 628 and the identification document produced by the voter contained the number YID5908447. Therefore Ex.P.8 and Ex.P.12(b) are to  be compared. In Ex.P.8, the ID card number is mentioned as YID6034151, and of course this number does not tally with the number ID8447 mentioned in Ex.P.12(b). But the number ID8447 tallies with the last four digits of the ID card  number mentioned in Ex.P.9 which pertains  to  booth No.96 . Yes, the petitioner has pointed out a discrepancy, but whether it is very material to find preponderance in the evidence of the petitioner, is the question. To answer this question, the cross- examination of PW4 is to be considered. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.  It is elicited from PW4 in his cross- examination that a voter will be permitted to vote only if details found in ID card  tally  with  the  details in the voters’ list, that in case any agent of any candidate present in the booth takes objection to the identity of a voter, such voter will not be permitted to vote, that the agent of the petitioner present in the pooling booth did not object to the identity of the voter who had signed at Sl.No.70 of Ex.P.12 , that the petitioner did not take objection regarding bogus voting in both No.  97,  and  that the petitioner also did not complain to the election officer about bogus voting in booth No.97. He has also admitted a suggestion that Ex.P.12 does not indicate that the person who has signed  at  Sl.No.70 voted more than one  time  at  booth  No.97.  These  answers clearly rule  out possibility  of RW2 having cast her vote more than one time. Moreover, if according to the petitioner, RW2  used all the three ID cards for casting vote three times,  he should have pointed out from Ex.P.12 that signature of RW 2 is found at  more than one place, or he could have elicited from PW.4 that RW.2 has signed at more than one  place.  No  such  evidence is forthcoming. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19. If the evidence tendered  by  RW1  and RW2 is seen, it can be said that RW1 has not been discredited in the cross-examination at all. In fact  he has admitted that there were complaints regarding bogus entries in the voters’ list and that  he was one of the complainants. RW2 in  her  affidavit has denied to  have voted multiple times.  In the cross-examination, though, to one specific question, she answered that she  did  not  have  voter identity card, over all  analysis  of  her  answers in the cross-examination does not indicate that the petitioner’s counsel was able to elicit from her an answer favourable to the petitioner’s case. She has stated that she carried a voter’ s slip and  her Aadhar Card when she went to polling booth. Though she has answered that she went to polling booth two times, this answer does  not  indicate  that she voted two times; it only shows that  she went near the gate of the polling booth when she went there for second time. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20. Therefore evaluation of  entire  evidence on issue No.1 shows that the petitioner has not been able to  prove  bogus  voting.  Even  his attempt to make use of Ex.P.8 to P.10 in order to establish possibility of bogus voting has failed. Therefore issue no.1 is answered in negative. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>21. ISSUE No.2:- On this issue, Sri. Mohammed Tahir argued that there was  no direction from the Election  Commission as  to  how to make use of VVPAT if any objection was raised during counting of ballots. He submitted the petitioner had large number of confident voters in the areas attached to booth  No. 139A, but he  got  ‘0’ votes. Therefore VVPAT are to be counted. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>22. Sri. M.S. Shyamsundar has refuted this argument. He submitted that the plea of the petitioner is based on suspicion about recording of ballots in electronic voting machine,  his  plea  in this regard is to be rejected out rightly. The petitioner has not examined  any  credible  witness to substantiate his claim that several of his party workers voted in his  favour. He  has  also contended that VVPAT machine which  is  nothing  but a glorified form of electronic printer, will not disgrace or discount the correctness or worthiness  of the electronic ballot. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23. If  the evidence of PW1 is assessed, what  is found is that  he  just  entertained  doubt regarding efficacy of electronic voting machine because he did not secure even  a  single  vote  in the other booths. His clear  admission  is  that during voting hours, none of his confident voters complained to him about non generation of VVPAT slips or their mismatch. PW2 has also given  evidence that the booth agents took objection verbally with regard to VVPAT machine. If this answer of PW2 is to be believed,  at  least  one  booth agent should have been  examined.  The  entire evidence of PW 1 and PW2  cannot  be believed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>24. Though PW1 has produced Ex.P.7 ,  a letter written by him to the Deputy Commissioner seeking counting of VVPAT, in the revised instructions issued by the Election Commission of India, as per Ex.P.4, instruction No. 3.1 deals with the circumstances when VVPAT slips can be permitted to be counted. Instruction No.3 .1 reads as below:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>“3.1. Application for VVPAT Paper Slips Counting: After announcement of result sheet entries, any candidate, their election agent or their  counting  agents may apply in writing to the RO to count the printed VVPAT  paper  slips in any or all polling stations. If such application is  made,  the  RO shall pass a speaking order  on whether the VVPAT paper slips should be counted. If the RO decides  to  allow the counting of  the  VVPAT paper slips to any or all polling stations, such decision of the RO must be recorded in writing  along  with the reasons thereof. The  RO shall give due consideration to the following: ·     </b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>Whether the total number of votes polled in that polling  station is greater or lesser than the margin of votes between winning candidate and candidate making the application</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>Whether EVM had a problem and was replaced that polling station during  poll Whether there was any complaint about VVPAT not printing  or complaints by any voter under Rule 49MA in that polling  station  during the poll.” </b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>25.  The allegation made by  the  petitioner does not fall within any  of  the  above circumstances. Moreover recounting cannot be granted for a mere asking. It is held by the  Supreme Court in R.NARAYANAN VS. SEMMALAI AND OTHERS [1980(2) SCC 537] that: <i>“The relief of    recounting     cannot be accepted merely on the  possibility of there  being an error.The allegations  in the election petition must not only  be  clearly made out but should also be proved by cogent evidence. It is well settled that a  court would be justified in ordering a recount of the ballot papers only where</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(1) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or of illegality  in  counting  are  founded,</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(2) on the basis  of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting and </b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(3)  the court trying the petition is prima facie satisfied that the making  of  such   an   order   is imperatively necessary to decide the  dispute and  to do complete and effectual justice between the parties.” </b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>26.  As has been observed above,  the petitioner has expressed mere suspicion as he secured ‘0’ vote in booth No. 139A. Suspicion does not take the place of evidence. For all  these  reasons issue No.2 is answered in negative. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>27. ISSUE No.3:- The discussion  on  issues (i) and (ii) takes me to  conclude that the petitioner is not entitled to the reliefs claimed by  him and therefore the following:- </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER Election petition is dismissed with costs.</b></font></p>', '8e356042e2a61216f4137018654f0eee.jpeg', 'c6fd013903db40b6e1f965a28816e36b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-22', 1, '', '', '2022-03-22 02:23:18', '2022-03-22 18:32:40'),
(1456, 'B7kNcAIHzIF6Zpu53lvvtDnGR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Judicial review. Contract of public service meant for larger public good should not be interfered with lightly and in any case, there should not be any interim order derailing the entire process. Supreme Court ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>N.G Projects Limited Vs Vinod Kumar Jain and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1846 of 2022 decided on 21 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Gupta and Justice V. Ramasubramanian.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. We find that the interference in contract awarded to the appellant is\r\nwholly unwarranted and has caused loss to public interest. Construction\r\nof roads is an essential part of development of infrastructure in any\r\nState. The learned Single Bench and the Division Bench of the High\r\nCourt were exercising power of judicial review to find out whether the\r\ndecision of the State was manifestly arbitrary or unjust as laid down by\r\nthis Court in Tata Cellular v. Union of India and to act as appellate\r\nauthority over the decision of the State. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Learned counsel for the appellant also referred to a judgment reported\r\nas Central Coalfields Limited & Anr. v. SLL-SML (Joint Venture\r\nConsortium) & Ors. wherein it was held that it was not for the Court to\r\nsubstitute its opinion in respect of acceptance of bank guarantee. It was\r\nheld that when a particular format for a bank guarantee is prescribed,\r\nthen the bidder is required to stick to that particular format alone with\r\nthe caveat that the State reserves the right to deviate from the terms of\r\nthe bid document within the acceptable parameters<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. In Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation\r\nLimited & Anr., this Court held that the owner or the employer of a\r\nproject, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. This Court sounded a word of caution in another judgment reported as\r\nSilppi Constructions Contractors v. Union of India and Ors.\r\n6\r\n,\r\nwherein it was held that the Courts must realize their limitations and the\r\nhavoc which needless interference in commercial matters could cause. In\r\ncontracts involving technical issues, the Courts should be even more reluctant because most of us in judges\' robes do not have the necessary\r\nexpertise to adjudicate upon technical issues beyond our domain. As laid\r\ndown in the judgments cited above, the Courts should not use a\r\nmagnifying glass while scanning the tenders and make every small\r\nmistake appear like a big blunder. In fact, the courts must give \"fair play\r\nin the joints\" to the government and public sector undertakings in\r\nmatters of contract. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. In National High Speed Rail Corpn. Ltd. v. Montecarlo Ltd. , this\r\nCourt sounded a word of caution while entertaining the writ petition\r\nand/or granting stay which ultimately may delay the execution of the\r\nMega projects</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. In Uflex Ltd. v. Government of T.N. this Court stated that the enlarged\r\nrole of the Government in economic activity and its corresponding ability\r\nto give economic “largesse” was the bedrock of creating what is\r\ncommonly called the “tender jurisdiction”. The objective was to have\r\ngreater transparency and the consequent right of an aggrieved party to\r\ninvoke the jurisdiction of the High Court under Article 226 of the\r\nConstitution of India beyond the issue of strict enforcement of\r\ncontractual rights under the civil jurisdiction. However, the ground reality\r\ntoday is that almost no tender remains unchallenged. Unsuccessful\r\nparties or parties not even participating in the tender seek to invoke the\r\njurisdiction of the High Court under Article 226 of the Constitution<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. In Galaxy Transport Agencies v. New J.K. Roadways, a three-judge\r\nbench again reiterated that the authority that authors the tender\r\ndocument is the best person to understand and appreciate its\r\nrequirements, and thus, its interpretation should not be second-guessed\r\nby a court in judicial review proceedings. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. Therefore, the position of law with regard to the interpretation of terms\r\nof the contract is that the question as to whether a term of the contract\r\nis essential or not is to be viewed from the perspective of the employer\r\nand by the employer. Applying the aforesaid position of law to the present case, it has been the contention of respondent No. 1 that the format for bank guarantee was not followed strictly by the State and that\r\nthe relaxation given was not uniform, in that respondent No. 1 was singled out. The said contention has found favour with the Courts below.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. Since the construction of road is an infrastructure project and keeping in\r\nview the intent of the legislature that infrastructure projects should not\r\nbe stayed, the High Court would have been well advised to hold its hand\r\nto stay the construction of the infrastructure project. Such provision\r\nshould be kept in view even by the Writ Court while exercising its jurisdiction under Article 226 of the Constitution of India.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. The satisfaction whether a bidder satisfies the tender condition is\r\nprimarily upon the authority inviting the bids. Such authority is aware of\r\nexpectations from the tenderers while evaluating the consequences of non-performance. In the tender in question, there were 15 bidders. Bids\r\nof 13 tenderers were found to be unresponsive i.e., not satisfying the\r\ntender conditions. The writ petitioner was one of them. It is not the\r\ncase of the writ petitioner that action of the Technical Evaluation\r\nCommittee was actuated by extraneous considerations or was malafide.\r\nTherefore, on the same set of facts, different conclusions can be arrived\r\nat in a bona-fide manner by the Technical Evaluation Committee. Since\r\nthe view of the Technical Evaluation Committee was not to the liking of\r\nthe writ petitioner, such decision does not warrant for interference in a\r\ngrant of contract to a successful bidder.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. In view of the above judgments of this Court, the Writ Court should refrain itself from imposing its decision over the decision of the employer\r\nas to whether or not to accept the bid of a tenderer. The Court does not\r\nhave the expertise to examine the terms and conditions of the presentday economic activities of the State and this limitation should be kept in\r\nview. Courts should be even more reluctant in interfering with contracts\r\ninvolving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should\r\nbe not to find fault with magnifying glass in its hands, rather the Court\r\nshould examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the\r\nCourt finds that there is total arbitrariness or that the tender has been\r\ngranted in a malafide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of\r\nthe contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore,\r\nthe State and its citizens suffer twice, firstly by paying escalation costs\r\nand secondly, by being deprived of the infrastructure for which the\r\npresent-day Governments are expected to work.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. The State has paid over a sum of Rs.3,98,52,396/- to the appellant till\r\ndate, though the stand of the appellant is that it had submitted bills of\r\nwork of Rs.8.5 crores. The termination of contract would cause\r\nadditional financial burden on the State and also deprive the amenity of\r\nroad for a longer period. Learned counsel for the appellant has stated\r\nthat it shall not claim escalation of costs for the period when the writ\r\npetition before the High Court was pending and there was a stay\r\ngranted.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n25. In view thereof, we find that the action of the respondent in setting aside\r\nthe letter of acceptance granted to the appellant suffers from manifest\r\nillegality and cannot be sustained. Consequently, the appeal is disposed\r\nof with a direction to the respondent State to allow the appellant to\r\nresume and complete the work by excluding the period spent in the stay\r\nof execution of the contract.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. A word of caution ought to be mentioned herein that any contract of public service should not be interfered with lightly and in any case, there\r\nshould not be any interim order derailing the entire process of the\r\nservices meant for larger public good. The grant of interim injunction by\r\nthe learned Single Bench of the High Court has helped no-one except a\r\ncontractor who lost a contract bid and has only caused loss to the State\r\nwith no corresponding gain to anyone.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. We also find that multiple layers of exercise of jurisdiction also delay the\r\nfinal adjudication challenging the grant of tender. Therefore, it would be\r\nopen to the High Courts or the Hon’ble Chief Justice to entrust these\r\npetitions to a Division Bench of the High Court, which would avoid at\r\nleast hearing by one of the forums</b></span></p>', '35850decabffff43acfd99326e7a25c7.jpeg', 'bbd8017ff5f6dc60d6e9857479478c37.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-21', 1, '', '', '2022-03-22 02:58:10', '2022-03-21 16:36:34'),
(1471, 'gaEya9dcQjSiio5O2QSmwhgn9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Wife making/publicising unfounded and irresponsible allegations of extra marital affairs against husband is a clear act of cruelty which entitles the husband to divorce. Delhi High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jyothi Yadav Vs Neeraj Yadav.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>MAT.APP.(F.C) 111 of 2019 decided on 21 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Acting Chief Justice Vipin Sanghi and Justice Dinesh Kumar Sharma.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The appellant has invoked the jurisdiction of this Court under Section 19\r\nof the Family Courts, 1984 assailing the impugned judgment order dated\r\n31.01.2019, whereby the Family Court, Southr West, Dwarka granted a\r\ndecree of divorce in favour of the respondent/husband under Section 13\r\n(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred as HMA).\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Briefly stated, the facts are that the parties were married as per Hindu\r\nrites and customs at Palam, Delhi on 29.06.2014. However, immediately <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">after marriage, the relations between the couple turned sour. The\r\nappellant/wife lodged an FIR bearing No. 306/2016 under Section 354/354-\r\nA/354-B/354-C IPC, PS Palam Village against her father-in-law. The\r\ndivorce petition was filed by the respondent/husband on the ground of the\r\ncruelty on 08.03.2017. The Family Court after the trial, granted decree of\r\ndivorce.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The Family Courts in the impugned judgment, noted that after around\r\none year of marriage, the parties shifted to a rented accommodation in\r\nSaidalazab, Saket, New Delhi. The appellant – wife was working as a\r\nSocial Science Teacher with the Delhi Government and the respondent –\r\nhusband was employed as Assistant Manager (Co-ordination) with M/s\r\nBridge and Roof Co. (India) Ltd. The Respondent – husband in the petition\r\nhad levied certain allegations against the appellant – wife regarding her lifestyle, attitude and strange behavior towards his parents. The appellant – wife\r\nallegedly did not pay any heed to the respondent’s advise to modify her life\r\nstyle. The respondent/husband with a hope to see some improvement in their\r\nrelation, shifted to an independent rented house. However, the behavior of\r\nappellant/wife allegedly, did not improve. The appellant/wife allegedly\r\nmade false allegations against the father of the respondent/ husband which,\r\nlater on, she sought to withdraw and sought pardon as recorded in the\r\nwritten submissions made to Inquiry Officer ( IO ) on 25.06.2016. The\r\nappellant –wife filed false and frivolous complaints before the Delhi\r\nCommission for Women and CAW Cell on 03.06.2016 and 17.06.2016\r\nrespectively for dowry harassment against the respondent/ husband and\r\nmembers of his family. These complaints were closed after investigations.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>The appellant/wife also allegedly filed false FIR bearing No. 306/2016\r\nunder Section 354/354-A/354-B/354-C IPC, PS Palam Village. It has now\r\nbeen brought on the record that, in the said case, the Trial Court has\r\nrecorded an acquittal. Appellant/wife, allegedly - in order to malign the\r\nmembers of the family of respondent/husband, got it published in the\r\nnewspaper. Appellant/wife allegedly left the matrimonial house on\r\n11.07.2016 alongwith the household goods, and filed a false and frivolous\r\ncase under Section 9 of HMA in the Court of ADJ, Khetri Nagar, District\r\nJhunjhunu, Rajasthan. Thereafter, the respondent/husband filed the present\r\npetition under Section 13 (1) (ia) of HMA on the ground of Cruelty. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. The appellant/wife in her defense stated that, in fact, it was the\r\nrespondent/husband who had been inflicting cruelty on her. She further\r\nstated that she was also tortured and harassed by her in-laws on account of\r\ntheir dowry demands. The appellant /wife also alleged that her father-in-law\r\nhad also sexually assaulted her, and when the respondent/husband did not\r\ntake any steps, she was forced to file a complaint with the police. The\r\nappellant /wife also stated that, rather, it was the respondent/husband who\r\nused to force her to commit suicide, for which, she had filed a complaint\r\nwith the Mahila Ayog. Allegedly, the respondent /husband was a habitual\r\ndrinker and even compelled the appellant to consume liquor on some\r\noccasions. The appellant stated that though she was employed and had to\r\nattend to her office, yet she used to do all household works. The appellant\r\nstated that she wanted to continue with the matrimonial alliance, and thus\r\nshe filed the petition under Section 9 of the HMA. The Family Courts\r\nframed the following issues;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>1. Whether the respondent has exercised cruelty upon the petitioner\r\nafter solemnization of marriage between the parities? </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 2. Whether the petitioner is entitled to decree of divorce as prayed\r\nfor? </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 3. Relief.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. The respondent – husband examined himself as PW-1 and his father\r\nSh. Charan Singh Yadva as PW- 2. The appellant had examined herself as\r\nRW-1.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. The Family Court after considering the material on records and\r\nsubmissions made by the learned counsel for the parties, noted that though,\r\nappellant had alleged extra marital affairs of her husband but failed to place\r\nany document or material in support of her allegations. The Family Court\r\ninter alia observed that the allegations made by the appellant regarding extra\r\nmarital affairs, were unfounded and had resulted in causing mental cruelty\r\nupon the respondent. The Family Court also noted that the appellant had\r\nadmitted that she had made the publication in newspaper – Dainik Jagran,\r\nregarding complaints of sexual harassment made by her against her fatherin-law. The Trial Court noted that the parties were living separately for last\r\nmore than 30 months. The Family Court inter alia concluded that the\r\nappellant had inflicted cruelty upon the respondent after solemnization of\r\nthe marriage and granted decree of divorce.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. It is pertinent to the mention that during pendency of this appeal, the\r\nrespondent placed on record the judgment dated 04.06.2019 in case FIR no.\r\n306/2016, PS Palam Village titled as State vs Charan Singh vide which <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Charan Singh Yadav i.e. the father of the respondent/husband was acquitted.\r\nThe appellant /wife in the present appeal, has assailed the impugned order,\r\npre-dominantly on the ground that the Family Courts has not correctly\r\nappreciated the evidence and has passed the order without any application of\r\nmind. The appellant/wife allegedly stated that, in fact, the respondent/\r\nhusband had been inflicting cruelty and the present petition was filed by the\r\nrespondent /husband only as a counter blast of the complaints filed by her\r\nagainst her father-in-law. The appellant/wife stated that, even if, we assume\r\nthat marriage has irretrievably broken down, it is only because of cruelty\r\ncommitted by the respondent/husband. The appellant/wife stated that the\r\nallegations of extra marital affairs were not whimsical or imaginative, and\r\nwere made with a reasonable cause.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. Mr.Rajeev Pratap Singh, learned counsel for the appellant submitted\r\nthat the Trial court/ Family Courts has wrongly passed the judgment and this\r\nappeal may be accepted. However, he sought permission to file written\r\nsubmissions. In the interest of justice, this opportunity was given to him.\r\nHowever, the learned counsel has merely filed the list of dates.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Ms. Begum, learned counsel for the respondent submits that the\r\nFamily Court Judge has correctly appreciated the evidence and has passed a\r\nreasoned judgment on the basis of material on record and therefore, there is\r\nno reason and ground to upset or set aside the judgment of the Trial Court.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. We have considered the submissions of the parties and perused the\r\nrecord carefully. The parties in the present case were married in June, 2014\r\nand have been residing separately since June, 2016. The appellant/wife\r\nlodged the police complaint against her father-in-law FIR bearing No. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">306/2016 under Section 354/354-A/354-B/354-C IPC, PS Palam Village. In\r\nMarch, 2017, the respondent/husband filed the divorce petition. Thus, the\r\nparties are in litigation since 2016, and are residing separately for the last\r\naround 6 years. The Family Court Judge in his detailed and reasoned\r\njudgment has correctly appreciated the evidence on the record and has found\r\nthat the allegations of extra marital affairs made by the appellant/wife\r\nagainst the respondent /husband were unfounded. In the evidence before the\r\nTrial Court, the appellant failed to bring any credible evidence to prove her\r\nallegations. It is also a matter of record now, that the police case filed by the\r\nappellant against her father-in-law i.e. the father of the respondent has also\r\nresulted in acquittal.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. We consider that the Family Court has correctly appreciated the\r\nevidence and has rightly found that the appellant - by making unfounded\r\nallegations amounting to character assassination against the respondent and\r\nhis father has inflicted mental cruelty upon the respondent /husband. In the\r\nappeal, also, the appellant has failed to bring any credible material to\r\nsuggest that the findings recorded by the Trial Court are incorrect. It has\r\nrepeatedly been held that accusations of unchastity or extra marital\r\nrelationship is a grave assault on character, status, reputation as well as\r\nhealth of the spouse against whom such allegations were made. It causes\r\nmental pain, agony suffering and tantamount to cruelty. The allegations of\r\nextra marital affairs in relationship are serious allegations, which have to be\r\nmade with all seriousness. The tendency of making false allegations has to\r\nbe deprecated by the Courts. The malintent of the appellant is also evident\r\nfrom her admission of publicising her allegations against her father-in-law </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">His reputation would have been tarnished by such irresponsible conduct of\r\nthe appellant.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. We consider that there is no material on the record to upset or set\r\naside the order of the Family Courts.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>13. In the present case the appellant has made serious allegations, but the\r\nsame were not substantiated during the trial. The appellant also filed a\r\nserious complaint against the father of the husband, which also resulted in\r\nacquittal. We consider that these two aspects simply can be taken as acts of\r\ncruelty by the appellant, upon the respondent. The marriage is solemn\r\nrelation and it’s purity must be maintained for a healthy society. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Thus, we\r\nsee no reason to interfere with the impugned judgment and decree.\r\nDismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '19c4a2560ff63e7b528528a1fdd49356.png', 'b9414a4c9ae644b8c9b3af5c8fe8c972.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-28', 1, '', '', '2022-03-24 18:42:13', '2022-03-28 06:42:49');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1472, '8bOPNl0mLtEsLjbSggUJ8tmqS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Rejection of plaint. Defendant cannot approbate and reprobate.  After raising jurisdictional issue before Revenue authorities, defendant cannot seek rejection of plaint before Civil Court on the same ground. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Premlata @ Sunita Vs Naseeb Bee and others.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Civil Appeal 2055-2056 of 2022 decided on 23 March 2022.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Justice M.R Shah and Justice B.V Nagarathna.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 27.11.2019 passed by the High Court   of   Madhya   Pradesh   at   Jabalpur in Civil Revision Application No.385 of 2019 by which the High Court has allowed the said Revision Application and has quashed and set   aside the order passed by the learned trial Court dismissing the application under Order 7 Rule 11 of Code of Civil   Procedure, 1908 (hereinafter   referred   to   as   ‘CPC’) preferred by the respondents herein – original defendants and consequently allowed the said application under Order 7 Rule 11 CPC and has rejected the plaint on the ground that the suit would be barred under the provisions of Section 257 of M.P. Land Revenue Code, 1959 (hereinafter referred to as the ‘MPLRC’), the original plaintiff has preferred the present appeal.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.2 By the impugned judgment and order the High Court has allowed the revision application and has set aside the order passed by the learned trial Court and consequently has allowed the application under Order 7 Rule 11 CPC and has rejected the plaint by holding that in view of Section 257 of  the MPLRC the  jurisdiction  of  the  Civil Court  is barred.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. At the outset, it is required to be noted and it is not in dispute that the plaintiff instituted the proceedings before the Revenue Authority under Section 250 of the MPLRC. These very defendants raised an objection before the Revenue   Authority   that   the   Revenue   Authority   has   no jurisdiction to deal with the matter. The Tehsildar accepted the   said   objection   and   dismissed   the   application   under Section 250 of the MPLRC by holding that as the dispute is with respect to title the Revenue Authority would not have any jurisdiction under MPLRC.   The said order passed by the Tehsildar has been affirmed by the Appellate Authority (of course during the pendency of the revision application before the High Court).  That after the Tehsildar passed an order rejecting the application under  Section  250  of the MPLRC on the ground that the Revenue Authority would have no jurisdiction, which was on the objection raised by the respondents herein – original defendants, the plaintiff instituted a suit before the Civil Court.   Before the Civil Court  the respondents  – original defendants  just took  a contrary stand than which was taken by them before the Revenue Authority and before the Civil Court the respondents took the objection that the Civil Court would have no jurisdiction to entertain the suit.  The respondents –   original   defendants   cannot   be   permitted   to   take   two contradictory stands before two different authorities/courts. They cannot be permitted to approbate and reprobate once the objection raised on behalf of the original defendants that the Revenue Authority would have no jurisdiction came to be accepted by the Revenue Authority/Tehsildar and the proceedings under Section 250 of the MPLRC came to be dismissed and thereafter when the plaintiff instituted a suit before the Civil Court it was not open for the respondents – original defendants thereafter to take an objection that the suit before the Civil Court would also be barred in view of Section 257 of the MPLRC.  If the submission on behalf of the respondents – defendants is accepted in that case the original plaintiff would be remediless.  The High Court has not at all appreciated the fact that when the appellant – original   plaintiff   approached   the   Revenue Authority/Tehsildar he was non­suited on the ground that Revenue Authority/Tehsildar had no jurisdiction to decide the   dispute   with   respect   to   title   to   the   suit   property.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Thereafter when the suit was filed and the respondents ­ defendants took a contrary stand that even the civil suit would be barred.  In that case the original plaintiff would be remediless. In any case the respondents – original defendants cannot be permitted to approbate and reprobate and to take just a contrary stand than taken before the Revenue Authority. Therefore, in the facts and circumstances of the case, the learned trial Court rightly rejected the application under Order 7 Rule 11 CPC and rightly refused to reject the plaint.   The High Court has committed a grave error in allowing the application under Order 7 Rule 11 CPC and rejecting the plaint on the ground that the suit would be barred in view of Section 257 of the MPLRC.  The impugned judgment and order passed by the High Court is unsustainable and is liable to be set aside. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. In view of the above and for the reasons stated above, the present appeals succeed. The impugned judgment and order passed by the High Court dated 27.11.2019 in Civil Revision Application No.385 of 2019 allowing the same and setting aside the order passed by the learned trial Court and consequently rejecting the plaint under Order 7 Rule 11 CPC is hereby quashed and set aside. The order passed by the learned trial Court rejecting the application under Order 7 Rule 11 CPC is hereby restored and the suit is restored on the   file   of   the   learned trial Court. Now the suit to be proceeded further in accordance with law and on its own merits.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Present appeals are accordingly allowed.  In the facts and circumstances of the case there shall be no orders as to costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a2038dc1daaad890a071261664434491.JPG', '12cb8b9277fa88c512049c063021a65a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-26', 1, '', '', '2022-03-24 19:24:49', '2022-03-26 13:17:21'),
(1470, 'mmcmCT7DeoTKtiJCreXJYBDCr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'State organized lotteries also fall within the definition of ‘betting and gambling’.  Tax on Meghalaya lottery by Karnataka and Kerala traceable to Entry 62, List II of the Constitution. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>State of Karnataka and another Vs State of Meghalaya and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 10466-10476 of 2011 decided on 23 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R Shah and Justice B.V Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>These appeals have been preferred by the States of\r\nKarnataka, Kerala and others being aggrieved by the judgments\r\npassed by the Division Benches of the High Courts of the\r\nrespective States. The Division Bench of the High Court of\r\nKarnataka vide impugned judgments dated 27th December, 2010\r\nand 7th March, 2011 held that the Karnataka Legislature had no\r\nlegislative competence to pass the Karnataka Tax on Lotteries Act,\r\n2004 (hereinafter referred to as, “Karnataka Act, 2004”) and,\r\nconsequently, directed the amounts deposited by the\r\nrespondents-States who had organised the lottery schemes to be\r\nrefunded to them within four months from the date of receipt of\r\nthe copy of the impugned judgment. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. The controversy in these cases is regarding the interpretation\r\nto be given to the expression ‘betting and gambling’ in Entries 34\r\nand 62 of List II of the Seventh Schedule of the Constitution of\r\nIndia. Further, whether the ‘lotteries organised by the Government\r\nof India or Government of a State’, which is a subject in Entry 40\r\nof List I also encompasses the power to levy tax on the said\r\nlotteries? Consequently, whether under Entry 62 of List II the\r\nState Legislature is denuded of the power to levy tax on the said\r\nsubject? In other words, whether the subject covered in Entry 40\r\nof List I restricts the scope and ambit of Entries 34 and 62 of List\r\nII? If the answer is in the affirmative, whether the State\r\nLegislatures have no legislative competence to levy tax on lotteries\r\norganised by the Government of India or Government of a State.\r\nConsequently, the question in these cases is, whether, the\r\nlegislature of States of Karnataka and Kerala had the legislative competence to enact Karnataka Act, 2004 and Kerala Act, 2005\r\nrespectively. Further, whether these Acts are unconstitutional as\r\nbeing extra territorial in operation? </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>53. Having heard learned Senior Counsel and learned counsel\r\nappearing for the respective parties and upon perusal of the\r\nrecord, the following points would arise for our consideration:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Whether the subject ‘lotteries organised by the Central\r\nGovernment and the State Governments’ being carved out \r\n35\r\nof ‘betting and gambling’ which is dealt with under Entry\r\n34 of List II and being placed in Entry 40 of List I would\r\nalso exclude the power of taxation on the same in Entry 62\r\nof List II?\r\n(ii) Whether the power of taxation on ‘betting and gambling’ is\r\nwithin the ambit of Entry 62 of List II?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) Whether the impugned Acts passed by the Karnataka and\r\nKerala State Legislatures are within the legislative\r\ncompetence of Entry 62 of List II, and are therefore valid\r\npieces of legislation?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iv) What order?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>61. Once the Legislation is found to be ‘with respect to’ the\r\nlegislative Entry in question unless there are other constitutional\r\nprohibitions, the power would be unfettered. It would also extend\r\nto all ancillary and subsidiary matters which can fairly and\r\nreasonably be said to be comprehended in that topic or category\r\nof Legislation vide United Provinces vs. Atiqa Begum – [AIR\r\n1941 FC 16].</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>106. From the above Dictionary meanings what emerges is that\r\n‘lottery’ is one of the many gambling schemes. That ‘gambling’ is\r\nthe genus of which a species is ‘lottery’. It is evident that ‘lotteries’\r\nand ‘gambling’ activities, to be termed as such, must inherently <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">have an element of ‘chance’ in the manner in which the result\r\nthereof is determined. That the species of ‘lottery’ may be placed\r\nin the genus of ‘betting and gambling’ and more specifically under\r\nthe ambit of ‘gambling’ because of the ‘gambling spirit’ which is a\r\nnecessary element of ‘lottery’. The expression ‘to take a chance’ is\r\nitself synonymous to a gamble. Therefore, it may be concluded\r\nthat lottery is one such activity which requires a participant to\r\ntake a chance or to gamble. Any form of contest for a prize that\r\ndoes not fall within the definition of either betting, gaming or a\r\nlottery is defined as a ‘prize competition’ which is also subject to\r\nlegal control.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>B. Some Recent Writings :</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) According to the House of Lords Select Committee Report on\r\n‘the Social and Economic Impact of the Gambling Industry’\r\n(Report of Session 2019-21), gambling is a general expression\r\nwhich can include different types of gambling viz., betting, gaming\r\nand lotteries.\r\nBetting is defined as making or accepting a bet on:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) the outcome of a race, competition or other\r\nevent or process;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) the likelihood of anything occurring or not\r\noccurring; or</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) whether anything is or is not true.\r\nGaming is defined as ‘playing a game of chance for a prize’.\r\nA game of chance includes:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) A game that involves both an element of\r\nchance and an element of skill;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) A game that involves an element of chance\r\nthat can be eliminated by superlative skill;\r\nand</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) A game that is presented as involving an\r\nelement of chance, but</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iv) Does not include a sport.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Report however states that the expression ‘gaming’ may\r\nnot include video gaming and social gaming as such but is used\r\nin a statutory sense viz., section 6 of Gambling Act, 2005. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Lotteries is defined as a type of gambling that has three\r\nessential elements :</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Payment is required to participate;\r\n(ii) One or more prizes are awarded; and</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) Those prizes are awarded by chance. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In England, the Gambling Act, 2005 has been enforced as a\r\ncomprehensive legislation with effect from 1st September, 2007 to\r\ninclude betting, gaming and lotteries. While the Gambling Act,\r\n2005 defines each of the forms of gambling, the underlying\r\nconcept ‘game’ and ‘bet’ are not defined.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) Kent R. Grote and Victor A. Matheson (Department of\r\nEconomics and Business, Lake Forest College and Department of\r\nEconomics, College of the Holy Cross, Worcester respectively) in\r\ntheir Article ‘The Economics of Lotteries: A Survey of the\r\nLiterature’, published in August, 2011, have stated that lotteries\r\nrepresent one of the oldest and most common forms of gambling <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">around the world. That lotteries involve the sale by an organising\r\nbody, typically the government but also occasionally private\r\nbusinesses or charities, of a ticket, giving the possessor, a\r\npotential monetary reward. Lotteries differ from casinos in that\r\nlottery ticket sales generally do not take place at a location\r\nspecifically set aside for gambling, and modern lotteries are\r\nusually operated by governments instead of private firms. It is\r\nfurther observed that lotteries are of particular interest to\r\nscholars for a variety of reasons. First, they represent an\r\nimportant source of government revenue in many States and\r\ncountries, so they are of interest to public finance economists.\r\nSecond, lotteries provide researchers interested in microeconomic theory and consumer behavior with a type of\r\nexperimental lab that allows economists to explore these topics.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>109. What emerges from the discussion of the decisions of this\r\nCourt referred to above is that ‘lotteries’ are a species within the\r\ngenus of ‘gambling.’ That one of the essential features of a lottery\r\nis its inherent gambling nature, which persists irrespective of\r\nwhether the lottery scheme is conducted by the Government of\r\nIndia, Government of a State or by a private entity. ‘Gambling’\r\nactivities include a whole gamut of activities, including, but not\r\nlimited to ‘lotteries.’ </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>110. It is also settled that the sale of a lottery ticket involves two\r\nelements, namely, (i) the right to participate in a draw; and (ii) the\r\nright to win the prize, dependent on chance. Therefore, sale of a\r\nlottery ticket is in the nature of a transfer of an actionable claim\r\nor a chose in action.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>111. Having regard to the aforesaid discussion, we now answer\r\nthe points for consideration. While doing so, the following \r\n101\r\napproach is being adopted with regard to the interpretation of the\r\nEntries of the Lists of the Seventh Schedule of the Constitution:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>1. The Entries in the different Lists should be read\r\ntogether without giving a narrow meaning to any of\r\nthem. The powers of the Union and the State\r\nLegislatures are expressed in precise and definite\r\nterms. Hence, there can be no broader interpretation\r\ngiven to one Entry than to the other.\r\nEven where an Entry is worded in wide terms, it\r\ncannot be so interpreted as to negate or override\r\nanother Entry or make another Entry meaningless.\r\nIn case of an apparent conflict between different\r\nEntries, it is the duty of the Court to reconcile them\r\nin the first instance.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n2. In case of an apparent overlapping between two\r\nEntries, the doctrine of pith and substance has to be\r\napplied to find out the true nature of a legislation\r\nand the Entry within which it would fall.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. Where one Entry is made ‘subject to’ another Entry,\r\nall that it means is that out of the scope of the former\r\nEntry, a field of legislation covered by the latter\r\nEntry has been reserved to be specially dealt with by\r\nthe appropriate Legislature.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. When one item is general and another specific, the\r\nlatter will exclude the former on a subject of\r\nlegislation. If, however, they cannot be fairly\r\nreconciled, the power enumerated in List II must\r\ngive way to List I. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 5. On a close perusal of the Entries in the three Lists\r\nof the Seventh Schedule of the Constitution, it is\r\ndiscerned that the Constitution has divided the\r\ntopics of legislation into the following three broad\r\ncategories:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Entries enabling laws to be made;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii)\r\nEntries enabling taxes to be imposed; and</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii)\r\nEntries enabling fees and stamp duties to be\r\ncollected. Thus, the entries on levy of taxes are\r\nspecifically mentioned. Therefore, per se, there\r\ncannot be a conflict of taxation power of Union and\r\nthe State. Thus, in substance the taxing power can\r\nbe derived only from a specific taxing Entry in an\r\nappropriate List in the Seventh Schedule. Such a\r\npower has to be determined by the nature of the tax\r\nand not the measure or machinery set up by the\r\nstatute. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>112. At the same time, Article 265 of the Constitution which states\r\nthat no tax shall be levied or collected except by authority of law, ought to be borne in mind. In the instant cases, authority of law\r\nwould imply the competence of the State Legislatures of\r\nKarnataka and Kerala in enacting the impugned laws. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>119. In conclusion we hold that the tax sought to be imposed by\r\nthe State Legislatures of Karnataka and Kerala by way of the\r\nimpugned Acts, is traceable to the power conferred on the State\r\nLegislatures under Entry 62 of List II. The said entry contemplates\r\nimposition of taxes, inter alia, on the entire genus of ‘betting and\r\ngambling’. having concluded that ‘lottery’ of every kind, whether\r\norganized by the Government of India or the Government of a\r\nState or by a private entity is included within the genus of\r\n‘gambling’, we find no reason to hold that State organized lotteries\r\nare excluded from the ambit of ‘betting and gambling’ as\r\nappearing in Entry 62 of List II. We are not inclined to accept the\r\nview that ‘lotteries organized by the Government of India or the\r\nGovernment of a State’ are to be excluded from the expression\r\n‘betting and gambling’ as appearing in Entry 62 of List II which\r\ndeals with taxes on gambling activities, simply because such\r\ncategory of lotteries is excluded from the regulatory field relatable <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to betting and gambling under Entry 34 of List II and included in\r\nEntry 40 of List I. Exclusion of a legislative field from a term\r\nappearing in a general Entry, does not necessarily mean that such\r\nfield ought to be excluded from the taxation Entry. This means\r\nthat the term ‘betting and gambling’ in Entry 62 of List II is being\r\nconstrued in the same way as in Entry 34 of List II. The expression\r\nis accorded the same meaning and interpretation in both the\r\nEntries, i.e., that gambling includes lotteries. However, ‘lotteries\r\norganized by the Government of India or the Government of a\r\nState’ have been carved out of Entry 34 of List II and been placed\r\nwith the Union. Entry 34 of List II is denuded to this limited\r\nextent. Such transposition of power does not mean that the term\r\n‘betting and gambling’ has a different meaning in each of the\r\naforesaid Entries. It only implies that for regulatory purposes,\r\nhaving regard to the need for uniform legislation throughout the\r\nterritory of India, the Parliament has been conferred with\r\nexclusive jurisdiction to regulate the conduct of lotteries,\r\nthroughout the territory of India.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>121. Thus, in the context of lotteries, the organisation and\r\nconduct of a lottery scheme being a pan India activity, when any\r\nState Government permits the Government of India or any other\r\nState Government to organise the lottery scheme in that State,\r\nEntry 62 of List II would enable the Legislature of that State to\r\nlevy taxes on the same.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>122. Hence, in our view, the Legislatures of the State of Karnataka\r\nand Kerala were fully competent to enact the impugned Acts and\r\nlevy taxes on the activity of ‘betting and gambling’ being organised\r\nand conducted in the said respective States, including lotteries\r\nconducted by the Government of India or the Government of any\r\nState.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>123. The Division Benches of the High Courts was not right in\r\nholding that the State Legislatures had no power to levy tax on\r\nlotteries conducted by the Government of India or the Government\r\nof any State or Union territory in the State of Karnataka as such\r\na power could be read in Entry 40 or Entry 97 of List I and only\r\nthe Parliament could levy such a tax. Since we have held that the\r\nStates of Karnataka and Kerala had the legislative competence to\r\nenact the impugned Acts, the question of refund of tax collected\r\nunder the same does not arise.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>125. In the result, the appeals filed by the State of Karnataka\r\nand State of Kerala and others are allowed by setting aside\r\nthe impugned judgments passed by the Division Benches of\r\nthe High Courts of Karnataka and Kerala.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Parties to bear their respective costs.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '341f705ef5a188479d7441d281470790.jpeg', '93904c8f0afd201eb052fcee17f14301.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-26', 1, '', '', '2022-03-24 18:07:12', '2022-03-26 19:41:14'),
(1460, 'VI9zUFM1cgAAKjJvl2hMJtXvj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Only in rare circumstances a lady acquires the caste status of her husband provided she pleads and proves her admission to the community of the husband by social acceptance. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Archana MG Vs Abhilasha and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 3399 of 2022 decided on 15 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna Dixit.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petitioner a Grama Panchayat Member from a constituency reserved for Scheduled Tribe has been unseated by the learned II Addl. Sr. Civil Judge, Shivamogga vide order dated 01.02.2022 (Annexure-A) in Election Misc. No.3/2021 filed by the 1st respondent- Smt.Abhilasha on the ground of lack of social status. After service of notice the 1st respondent is represented by a private advocate. Official respondents 5 &amp; 6 are represented by learned AGA and the 7th respondent –State Election Commission is represented by its Panel Counsel. All the respondents oppose the writ petition making submission in justification of the impugned order.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines to grant indulgence in the matter for the following reasons: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a)<span style=\"white-space:pre\">	</span>There is no dispute as to petitioner does not belong to Scheduled Tribe, by birth, although she claims to have acquired the said social status by marriage to a member of scheduled tribe. Ordinarily, caste is determined by birth and caste of a person follows that of his/her father. That is why Mahabharath states: “<i>daivaa yatnam kule janma, purushaa yatnam pourusham”</i>. True&nbsp; it is, in rare circumstances a lady acquires the caste status of her husband provided she pleads and proves her admission to the community of the husband by social acceptance. However, that is not the case put forth by the petitioner in the court below in her objections to election petition as rightly contended by learned counsel for the respondent no.1. Such a plea now being taken in the writ petition is only an after thought and cannot be accepted as the pleadings in the election petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b)<span style=\"white-space:pre\">	</span>Learned AGA appearing for the official respondents vehemently resists the writ petition placing heavy reliance on a decision of a Co-ordinate Bench in M/S. SHANTHA NAIK VS. SMT. RAJEEVI &amp; OTHERS, (2011) 1 KCCR 711</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(c)<span style=\"white-space:pre\">	</span>Learned counsel for the petitioner found fault with the procedure adopted by the Election Tribunal arguing that no fair opportunity was given to his client. This is difficult to countenance inasmuch as petitioner herself had appeared in the matter and sought time for engaging another advocate, after the first one retired from the case. Thrice adjournment was granted and she concurrently remained absent. Even here no plausible explanation is offered for such a lapse. Petitioner is an elected representative&nbsp; of people and not a peasant or a labourer who can seek leniency in matters like this. This apart, learned AGA is more than justified in pointing out that in matters pertaining to election, equity and common law principles have no place vide JYOTHI BASU vs. DEBI PRASAD GHOSAL, AIR 1982 SC 983 wherein it is observed <i>“An election petition is not an action at common law, nor an equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies”.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>In the above circumstances this writ petition being devoid of merits is liable to be rejected and accordingly it is, costs having been made easy.</b></p>', 'a6e1bf2ac4372c089d87b6ecdac4589a.jpeg', '6ac63803560e71ead24cf44ca648b803.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-22', 1, '', '', '2022-03-22 20:20:39', '2022-03-22 12:34:06'),
(1461, 'TMPSYCFepxy9UG8xtQ62TYma2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Disciplinary enquiry and punishment. High Court under Article 226 can not trench upon a domain which falls within the disciplinary jurisdiction of the employer. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The state of Karnataka and another vs Umesh.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1763-1764 of 2022 decided on 22 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dhananjaya Y Chandrachud and Justice Surya Kant.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. The principles which govern a disciplinary enquiry are distinct from those\r\nwhich apply to a criminal trial. In a prosecution for an offence punishable under the\r\ncriminal law, the burden lies on the prosecution to establish the ingredients of the\r\noffence beyond reasonable doubt. The accused is entitled to a presumption of\r\ninnocence. The purpose of a disciplinary proceeding by an employer is to enquire\r\ninto an allegation of misconduct by an employee which results in a violation of the\r\nservice rules governing the relationship of employment. Unlike a criminal\r\nprosecution where the charge has to be established beyond reasonable doubt, in a\r\ndisciplinary proceeding, a charge of misconduct has to be established on a\r\npreponderance of probabilities. The rules of evidence which apply to a criminal trial\r\nare distinct from those which govern a disciplinary enquiry. The acquittal of the accused in a criminal case does not debar the employer from proceeding in the\r\nexercise of disciplinary jurisdiction. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. In a judgment of a three judge Bench of this Court in State of Haryana v.\r\nRattan Singh , Justice V R Krishna Iyer set out the principles which govern a\r\ndisciplinary proceedings as follows: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“It is well settled that in a domestic enquiry the strict and\r\nsophisticated rules of evidence under the Indian Evidence\r\nAct may not apply. All materials which are logically\r\nprobative for a prudent mind are permissible. There is no\r\nallergy to hearsay evidence provided it has reasonable\r\nnexus and credibility. It is true that departmental authorities\r\nand Administrative Tribunals must be careful in evaluating\r\nsuch material and should not glibly swallow what is strictly\r\nspeaking not relevant under the Indian Evidence Act. For this\r\nproposition it is not necessary to cite decisions nor text\r\nbooks, although we have been taken through case-law and\r\nother authorities by counsel on both sides. The essence of a\r\njudicial approach is objectivity, exclusion of extraneous\r\nmaterials or considerations and observance of rules of\r\nnatural justice. Of course, fairplay is the basis and if\r\nperversity or arbitrariness, bias or surrender of independence\r\nof judgment vitiate the conclusions reached, such finding,\r\neven though of a domestic tribunal, cannot be held good.\r\nHowever, the courts below misdirected themselves, perhaps,\r\nin insisting that passengers who had come in and gone out\r\nshould be chased and brought before the tribunal before a\r\nvalid finding could be recorded. The ‘residuum’ rule to which\r\ncounsel for the respondent referred, based upon certain\r\npassages from American Jurisprudence does not go to that\r\nextent nor does the passage from Halsbury insist on such\r\nrigid requirement. The simple point is, was\r\nthere some evidence or was there no evidence — not in\r\nthe sense of the technical rules governing regular court\r\nproceedings but in a fair commonsense way as men of\r\nunderstanding and worldly wisdom will accept. Viewed in this\r\nway, sufficiency of evidence in proof of the finding by a\r\ndomestic tribunal is beyond scrutiny. Absence of any\r\nevidence in support of a finding is certainly available for the\r\ncourt to look into because it amounts to an error of law\r\napparent on the record. We find, in this case, that the\r\nevidence of Chamanlal, Inspector of the Flying Squad,\r\nis some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that\r\nthe order is invalid on that ground.”<br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. In the exercise of judicial review, the Court does not act as an appellate forum\r\nover the findings of the disciplinary authority. The court does not re-appreciate the\r\nevidence on the basis of which the finding of misconduct has been arrived at in the\r\ncourse of a disciplinary enquiry. The Court in the exercise of judicial review must\r\nrestrict its review to determine whether:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) the rules of natural justice have been\r\ncomplied with;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) the finding of misconduct is based on some evidence;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iii) the\r\nstatutory rules governing the conduct of the disciplinary enquiry have been\r\nobserved; and</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iv) whether the findings of the disciplinary authority suffer from\r\nperversity; and</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(vi) the penalty is disproportionate to the proven misconduct. However, none of the above tests for attracting the interference of the High Court\r\nwere attracted in the present case. The Karnataka Administrative Tribunal having\r\nexercised the power of judicial review found no reason to interfere with the award of\r\npunishment of compulsory retirement. The Division Bench of the High Court\r\nexceeded its jurisdiction under Article 226 and trenched upon a domain which falls\r\nwithin the disciplinary jurisdiction of the employer. The enquiry was conducted in\r\naccordance with the principles of natural justice. The findings of the inquiry officer <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and the disciplinary authority are sustainable with reference to the evidence which\r\nwas adduced during the enquiry. The acquittal of the respondent in the course of the\r\ncriminal trial did not impinge upon the authority of the disciplinary authority or the\r\nfinding of misconduct in the disciplinary proceeding.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. For these reasons, we allow the appeals and set aside the impugned\r\njudgment and order of the High Court of Karnataka at the Kalaburagi Bench dated\r\n29 November 2017 in Writ Petition Nos. 202250-251/2016 (S-KAT). The Petition\r\ninstituted by the respondent under Article 226 of the Constitution shall stand\r\ndismissed. The finding of misconduct and the punishment of compulsory retirement\r\nare restored.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. There shall be no order as to costs.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. Pending application(s), if any, stand disposed of. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fc04f38579bec0361a18a049b4de1ad6.JPG', 'ce3d880eda3d927b2c8dc356a43bc162.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-22', 1, '', '', '2022-03-22 23:11:44', '2022-03-23 07:48:47');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1464, 'TGShZCqOaL5OtVTBGXI0V9503', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'RTE reimbursement. There is no question of the educational institutions seeking annual/yearly recognition for RTE reimbursement. Applications for reimbursement shall be considered expeditiously. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rupsa Karnataka and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 5084 of 2022 decided on 9 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P. Krishna Bhat.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.&nbsp; Heard Sri.S.Basavaraj, learned Senior counsel and Sri.B.V.Krishna, learned Additional Government Advocate.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.&nbsp; The petitioners are praying for the following reliefs:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i. Declaring that under the Karnataka Education Act, 1983 or the Karnataka Educational Institutions (Registration) Rules, 1999, the respondents have no power to insist on annual/yearly renewal of recognition granted under section 36 of the Karnataka Education Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ii. Directing the respondents to strictly abide by the provisions of Karnataka Education Act, 1983 and the Karnataka Educational Institutions (Registration) Rules, 1999 in the matter or renewal of recognition once in ten years.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>iii.&nbsp; For such other order or orders as this Hon’ble court deems fit to pass in the circumstances of the case in the interest of justice and equity.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The Writ Petition insofar as the said&nbsp; prayers are concerned is fully covered by the decision of&nbsp; this Court in W.P.No.2664/2022 dated 08.03.2022 and therefore, the prayers need not be considered.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.&nbsp; At this stage, learned Senior counsel Sri.S.Basavaraj submits that Condition No.4 of Para II of the Circular dated 16.11.2021 issued by respondent No.2 at Page 66 (Annexure-J to the Writ Petition) is causing some anxiety among the petitioners. He submits that Condition No.4 is capable of being misunderstood by the officers concerned and they are insisting upon the petitioners to seek and obtain annual recognition for the school.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.&nbsp; I have carefully gone through condition No.4&nbsp; of Para II of the Circular dated 16.11.2021 issued by the respondent No.2 and on such reading, I am of the considered view that it is not capable of being read in the said manner.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.&nbsp; &nbsp;The only requirement in Condition No.4 for the officer before issuing reimbursement of money under RTE Act, 2009, is that he should have a check slip before him and ascertain as to whether the institutions seeking reimbursement under the RTE Act have fulfilled condition Nos.(a) to (g) of the said Circular. Under such circumstances, for the institutions, which have first recognition or renewed recognition within the meaning of sub-Rule (3) of Rule 4 of the Karnataka Educational Institutions (Registration) Rules, 1999, there is no question of the educational authorities seeking annual recognition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.&nbsp; Learned Additional Government Advocate also submits that Condition No.4 means only that the officer has to satisfy himself that those conditions are fully fulfilled.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.&nbsp; &nbsp;That said, nothing more survives for consideration in this Writ Petition. Accordingly, the Writ Petition is disposed of.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.&nbsp; &nbsp;However, in order to allay the anxiety of the petitioners, who submit that the petitioners have&nbsp; admitted 25% of quota under the RTE category and have submitted applications seeking reimbursement, it is necessary to observe that if they have filed applications seeking reimbursement of fees, the respondents shall consider the same with all expedition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7d2b28ba536dd82953fe93b3d0ea95f7.jpg', '0a29facdd336b0d025db1db379e5495c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-22', 1, '', '', '2022-03-23 01:10:56', '2022-03-23 01:18:13'),
(1463, 'Gr7TrbCktHCX4klJjtnl3yn3J', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Court trying criminal case has no power to impound passport of accused since impounding of passport can be done only under the Passports Act, 1967. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Praveen Surendiran Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 1892 of 2022 decided on 21 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is before this Court calling in question order dated 02-03-2022 passed in  C.C.No.7559  of  2019  by  which,  the IV Additional Chief Metropolitan  Magistrate,  Bangalore  rejects  the application of the petitioner for release of his passport</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. I have given my anxious consideration  to  the submissions made by the respective learned counsel and in furtherance whereof, the issue that falls for my consideration is, ‘whether the order rejecting release of passport of the petitioner, in the facts and circumstances of the case, is tenable in law?’</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. Issuance of passport and its impounding is dealt with under special enactment – The Passports Act, 1967 (‘the Act’ for short).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. One such condition of impounding of passport is that,  if the proceedings in respect of an offence alleged to have been committed by the holder of the passport are pending before a criminal court in India. Therefore, the power of the Impounding Authority i.e., the Competent Authority under the Act is 18 traceable to clause (e) of sub-section 3 of Section 10 of the Act which is the only provision applicable to the case at hand. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17. It is not in dispute that the petitioner is facing criminal proceedings before the competent criminal Court and the Police after investigation have also filed charge sheet in the matter in which, the petitioner is arrayed as Accused No. Therefore, it  is not a case where the passport of the petitioner cannot even be seized or impounded, but, by whom is the question. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. The Passport Act is a special enactment and is  trite that it being a special enactment would prevail over Section 102 or Section 104 of the Cr.P.C., which empower the Police to seize and the Court to impound any document. Impounding of any document produced before the Court cannot stretch to an extent that it can impound the passport. Therefore, the deposit of passport before the Court or passport being held before the Police, both will become without authority of law. The further observation of the Court that it would be in its custody till conclusion of trial is, clearly on the face of it, without authority of law, as it would amount to impounding the  passport.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. The reliance placed on the judgment in the case of PARVEZ NOORDIN LOKHANDWALLA v. STATE OF MAHARASHTRA AND ANOTHER2 would not come in aid to the contentions advanced by the learned senior counsel in the light  of the fact that the issue before the Apex Court was entirely different than what is obtaining in the case at hand. The  appellant therein was permitted to travel in the light of only a  FIR pending consideration and the status of the appellant therein. There were no proceedings instituted by the Authorities under the Act in the aforesaid case. Therefore, the same would not be applicable to the facts obtaining in the case at hand.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21. The power of impounding a document under Section 104 of the Cr.P.C. is available to a Court. This cannot stretch to an extent of impounding the passport. The passport coming within the purview of the Act and it being a special law would prevail over the provisions of Section 104 of the Cr.P.C.  The Court can impound any document, but not the passport as it is dealt with under a special enactment. The power of impounding is available only to the Competent Authority under the Act, in terms of Section 10 of the Act. Wherefore, the order rejecting the release of passport by the Court observing that it is held in safe custody till the conclusion of the trial is  unsustainable.  Therefore, the petitioner becomes entitled for release of passport in his favour, as right to hold a passport and travel is, without doubt, held to be a fundamental right in plethora of judgments.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22. Since criminal proceedings are pending against the petitioner, the apprehension of the 2nd respondent that he would abscond and not be available for trial also requires to be considered. Fleeing justice or thwarting the course of justice would undermine the majesty of the law.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd183ae2295dd3e25bb91c2ca3b9c7425.jpeg', '4fcc94ba89c6a4e600fa44e2407fdbe6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-23', 1, '', '', '2022-03-22 23:40:14', '2022-03-22 14:29:37'),
(1465, 'l0vUcHkqhjOeqoCzHNyNEYRCI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mere breach of contract cannot give rise to criminal prosecution for cheating since fraudulent or dishonest intention is the basis of the offence of cheating. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vijay Kumar Ghai and others. Vs The State of Bengal and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 463 of 2022 decided on 22 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.Abdul Nazeer and Justice Krishna Murari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. This appeal is directed against the judgment and order dated\r\n01.10.2019 passed by the High Court of Calcutta (hereinafter referred to as\r\n“High Court”) in C.R.R No. 731 of 2017 filed by the appellants praying for\r\nquashing of proceedings being G.R. Case No. 1221 of 2013 pending before\r\nthe Court of Learned Chief Metropolitan Magistrate, Kolkata and arising out of\r\nBowbazar Police Station Case No. 168 dated 28.03.2013 under Sections 420,\r\n406 and 120B of the Indian Penal Code, 1860 (hereinafter referred to as\r\n“IPC”). By the said judgment, the High Court dismissed the prayer for  quashing of the proceedings and held that continuance of criminal\r\nproceedings against the present appellant/accused would not be an abuse of\r\nthe process of the court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. In Sudhir Shantilal Mehta Vs. CBI it was observed that the act of\r\ncriminal breach of trust would, Interalia mean using or disposing of the\r\nproperty by a person who is entrusted with or has otherwise dominion\r\nthereover. Such an act must not only be done dishonestly but also in violation\r\nof any direction of law or any contract express or implied relating to carrying\r\nout the trust.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. Section 415 of IPC define cheating which reads as under: -</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>“415. Cheating. —Whoever, by deceiving any person,\r\nfraudulently or dishonestly induces the person so deceived\r\nto deliver any property to any person, or to consent that\r\nany person shall retain any property, or intentionally\r\ninduces the person so deceived to do or omit to do\r\nanything which he would not do or omit if he were not so\r\ndeceived, and which act or omission causes or is likely to\r\ncause damage or harm to that person in body, mind,\r\nreputation or property, is said to “cheat”</i>.”\r\nThe essential ingredients of the offense of cheating are:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Deception of any person</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. (a) Fraudulently or dishonestly inducing that person-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) to deliver any property to any person: or</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) to consent that any person shall retain any property; or</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(b) intentionally inducing that person to do or omit to do anything which\r\nhe would not do or omit if he were no so deceived, and which act or <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">omission causes or is likely to cause damage or harm to that person in\r\nbody,mind,reputation or property.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. A fraudulent or dishonest inducement is an essential ingredient of the\r\noffence. A person who dishonestly induces another person to deliver any\r\nproperty is liable for the offence of cheating.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. Section 420 IPC is a serious form of cheating that includes inducement\r\n(to lead or move someone to happen) in terms of delivery of property as well\r\nas valuable securities. This section is also applicable to matters where the\r\ndestruction of the property is caused by the way of cheating or inducement.\r\nPunishment for cheating is provided under this section which may extend to 7\r\nyears and also makes the person liable to fine</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>31. To establish the offence of Cheating in inducing the delivery of property,\r\nthe following ingredients need to be proved:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The representation made by the person was false</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n2. The accused had prior knowledge that the representation he made was\r\nfalse.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The accused made false representation with dishonest intention in order\r\nto deceive the person to whom it was made.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The act where the accused induced the person to deliver the property or\r\nto perform or to abstain from any act which the person would have not\r\ndone or had otherwise committed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32. As observed and held by this Court in the case of Prof. R.K.\r\nVijayasarathy & Anr. Vs. Sudha Seetharam & Anr. , the ingredients to\r\nconstitute an offence under Section 420 are as follows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\ni) a person must commit the offence of cheating under Section 415;\r\nand</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ii) the person cheated must be dishonestly induced to;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>a) deliver property to any person; or</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>b) make, alter or destroy valuable security or anything signed or <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sealed and capable of being converted into valuable security. Thus,\r\ncheating is an essential ingredient for an act to constitute an offence\r\nunder Section 420 IPC.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. There can be no doubt that a mere breach of contract is not in itself a\r\ncriminal offence and gives rise to the civil liability of damages. However, as\r\nheld by this court in Hridaya Ranjan Prasad Verma & Ors. Vs. State of\r\nBihar & Anr., the distinction between mere breach of contract and cheating,\r\nwhich is criminal offence, is a fine one. While breach of contract cannot give\r\nrise to criminal prosecution for cheating, fraudulent or dishonest intention is\r\nthe basis of the offence of cheating. In the case at hand, complaint filed by the\r\nRespondent No. 2 does not disclose dishonest or fraudulent intention of the\r\nappellants.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>36. Having gone through the complaint/FIR and even the chargesheet, it\r\ncannot be said that the averments in the FIR and the allegations in the\r\ncomplaint against the appellant constitute an offence under Section 405 & 420\r\nIPC, 1860. Even in a case where allegations are made in regard to failure on\r\nthe part of the accused to keep his promise, in the absence of a culpable\r\nintention at the time of making promise being absent, no offence under\r\nSection 420 IPC can be said to have been made out. In the instant case,\r\nthere is no material to indicate that Appellants had any malafide intention\r\nagainst the Respondent which is clearly deductible from the MOU dated\r\n20.08.2009 arrived between the parties.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">37. The entire origin of the dispute emanates from an investment made by\r\nRespondent No. 2, amounting to Rs. 2.5 crores in lieu of which 2,50,000/-\r\nequity shares were issued in the year 25.03.2008, finally culminating into the\r\nMOU dated 20.08.2009. That based on this MOU respondent No. 2 filed three\r\ncomplaints, two at Delhi and one at Kolkata. Thus, two simultaneous\r\nproceedings, arising from the same cause of action i.e. MOU dated </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20.08.2009 were initiated by Respondent No. 2 amounting to an abuse of the\r\nprocess of the law which is barred. The details of the complaints are as\r\nunder:-</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>1. On 06.06.2012, Respondent No. 2 filed a private complaint u/s 156(3)\r\nCr.P.C with CJM, Tis Hazari Court Delhi for registration of fir against the\r\nAppellants; which was withdrawn on 19.09.2016.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>2. Complaint u/s 68 of the companies act r/w section 200 crpc filed before\r\nthe CMM, Tis Hazari Courts at Delhi; which is pending.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3. On 28.03.2013, a complaint was made to the P.S Bowbazar, Central\r\nDivision, Kolkata which was eventually registered as FIR No. 168 u/s\r\n406, 420, 120B IPC, 1860</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>38. Respondent No. 2 filed a complaint u/s 156(3) Cr.P.C on 06.06.2012,\r\nwherein his prayer for registration of an FIR was rejected vide order dated\r\n28.02.2013 by the MM, Tis Hazari Court, immediately after which he filed his\r\ncomplaint on 28.03.2013 at P.S Bowbazar, Calcutta. The timeline of filing\r\ncomplaints clearly indicates the malafide intention of Respondent No. 2 which\r\nwas to simply harass the petitioners so as to pressurise them into shelling out\r\nthe investment made by Respondent No. 2.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Malafide intention of Respondent No. 2 is culled out from following facts:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. At the time of filing of complaint dated 31.03.2013 at PS Bowbazar,\r\nRespondent No. 2 did not disclose about the filing of two complaints at\r\nDelhi against the appellants.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. After filing of closure report by the IO Bowbazar PS dated 04.03.2014,\r\nRespondent No. 2 filed a protest petition before the CMM, Kolkata\r\nwhere the material fact of two complaints was completely suppressed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>39. In the complaint no. 306/1/2012 dated 06.06.2012 registered before the\r\nMM, Tis Hazari Court, New Delhi, Respondent No. 2/complainant stated that:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“(c) That, thereafter Mr. Vijay Kumar Ghai and Mr. Mohit\r\nGhai started visiting the office of the complainant company\r\nevery now and then in order to persuade the complainant\r\ncompany to invest in their company. It is pertinent to\r\nmention herein that they stated the complainant company\r\nthat the retail business of the apparels under the PRIKNIT\r\nbrand through a network of exclusive brank outlets was\r\nwitnessing a growth..”</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>10. That it is submitted that this court has jurisdiction to try\r\nand entertain the matter as the complainant company is\r\nsituated within the jurisdiction of this court. Moreover, all\r\nthe business activities/transactions are being\r\nregulated and controlled at Delhi. Furthermore, the\r\ncomplaints filed by the complainant company are lying\r\nbefore the concerned police station, which also falls within\r\nthe jurisdiction of this Hon’ble Court.”</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This clearly demonstrates that the jurisdiction has been created in Delhi as the\r\nAppellants used to visit Respondent No. 2 in order to persuade them to invest\r\nin their company and special emphasis can be laid on the fact that\r\nRespondent No. 2 himself accepted/agreed to the fact that all the transactions\r\ntook place in Delhi. Therefore, registering a complaint in Kolkata is way of\r\nharassing the appellant as a complaint has already been filed in Delhi with all\r\nthe necessary facts, apart from the jurisdictional issue at Kolkata.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>41. It is pertinent to mention that Application under Section 156(3) Cr.P.C\r\nfiled before the MM, Tis Hazari Court, Delhi was dismissed and there was no  further challenge against the same. Instead, Respondent No. 2 chose to file a\r\ncomplaint with the same cause of action in Bowbazar PS, Calcutta and to\r\nfurther clarify, the Complaint filed in Bowbazar PS was the exact reproduction\r\nof the complaint filed before Tis Hazari Court, New Delhi with the only\r\ndifference or what may be termed as ‘Jurisdictional improvement’. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>42. The order of the High Court is seriously flawed due to the fact that in\r\nits interim order dated 24.03.2017, it was observed that the contentions put\r\nforth by the Appellant vis-à-vis two complaints being filed on the same cause\r\nof action at different places but the impugned order overlooks the said aspect\r\nand there was no finding on that issue. At the same time, in order to attract the\r\ningredients of Section of 406 and 420 IPC it is imperative on the part of the\r\ncomplainant to prima facie establish that there was an intention on part of the\r\npetitioner and/or others to cheat and/or to defraud the complainant right from\r\nthe inception. Furthermore it has to be prima facie established that due to such alleged act of cheating the complainant (Respondent No. 2 herein) had\r\nsuffered a wrongful loss and the same had resulted in wrongful gain for the\r\naccused(appellant herein). In absence of these elements, no proceeding is\r\npermissible in the eyes of law with regard to the commission of the offence\r\npunishable u/s 420 IPC. It is apparent that the complaint was lodged at a very\r\nbelated stage (as the entire transaction took place from January 2008 to\r\nAugust 2009, yet the complaint has been filed in March 2013 i.e., after a delay\r\nof almost 4 years) with the objective of causing harassment to the petitioner\r\nand is bereft of any truth whatsoever.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>43. In view of the above facts and circumstances, the impugned order dated\r\n01.10.2019 passed by the High Court is set aside. The impugned FIR No. 168\r\ndated 28.03.2013 and proceedings in the file of CMM, Kolkata, West Bengal in\r\npursuance of charge sheet dated 14.02.2017 against the appellants for the\r\noffences under Section 406, 420, 120B IPC stands quashed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>44. As a result, appeal stands allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7afa9eead28f91ad04750b1a0d6123e3.jpeg', 'c3b493236b49744ad8ead0a1a99577fe.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-23', 1, '', '', '2022-03-23 18:17:00', '2022-03-23 09:12:08'),
(1466, 'QsJTE6gy8jJLBVIBBkdozq9jq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Principle that the court has to pronounce judgment on all issues notwithstanding that a case may be disposed of on a preliminary issue applies even to Writ proceedings. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Agricultural Procedure Marketing Committee Vs The State of Karnataka and Others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1345-1346 of 2022 decided on 22 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R Shah and Justice B.V Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. As common question of law and facts arise in this group of appeals and as such are between the same parties, all these appeals are decided and disposed of together by this common judgment and order.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Feeling   aggrieved   and   dissatisfied   with   the   impugned judgment and order in respective writ appeals preferred by the appellant herein – the Agricultural Produce Marketing Committee,   Bangalore   (hereinafter   referred   to   as   the “APMC”), by which the Division Bench of the High Court has dismissed the said writ appeals and confirmed the common judgment and order passed by the learned Single Judge passed in respective writ petitions preferred by the private   respondents   herein   –   original   land   owners   and declared that the acquisitions of the lands in question has lapsed   under   Section   24(2)   of   the   Right   to   Fair Compensation   and   Transparency   in   Land   Acquisition, Rehabilitation   and   Resettlement   Act,   2013   (hereinafter referred to as “the Act, 2013”), the APMC, Bangalore has preferred the present appeals. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The facts leading to the present appeals in a nutshell are as under: ­ </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.1. That the lands in question were acquired in three parts. The first acquisition was in respect of 172 acres 22 guntas of land owned by respondent No.4 – Jamanlal Bajaj Seva Trust (for short “Trust”). Second acquisition was in respect of 104 acres 5 guntas of land owned by very respondent No.4 – Trust and the third acquisition was in respect of 3 acres 34 guntas of land (which is not the subject matter of appeals before this Court).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">8.3. By way of analogy we observe that while considering Order 14 Rule 2 (as amended w.e.f. 01.02.1977), this Court in the case of  Nusli  Neville  Wadia  Vs.  Ivory  Properties  & Ors, (2020) 6 SCC 557, has observed and held that after the amendment w.e.f. 01.02.1977, though Order 14 Rule 2(2) enables the court to decide the issue of law as a preliminary issue in case the same relates to (i) jurisdiction of court or (ii) a bar to suit created by any law for the time </font></span><font face=\"Calibri, sans-serif\">being in force, a departure has been made in amended provision whereby now it mandates the court to pronounce judgment on all issues notwithstanding that a case may be disposed of on a preliminary issue. It is further observed that intendment behind this departure is to avoid remand in an appealable case for deciding other issues.</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 8.4. Therefore, the courts should adjudicate on all the issues and  give   its   findings   on   all   the   issues   and   not   to pronounce the judgment only on one of the issues. As such it is the duty cast upon the courts to adjudicate on all   the   issues   and   pronounce   the   judgment   on   all   the issues   rather   than   adopting   a   shortcut   approach   and pronouncing the judgment on only one issue. By such a practice, it would increase the burden on the appellate court   and   in   many   cases   if   the   decision   on   the   issue decided is found to be erroneous and on other issues there is no adjudication and no findings recorded by the court, the appellate court will have no option but to remand the matter for its fresh decision. Therefore, to avoid such an eventuality, the courts have to adjudicate on all the issues raised in a case and render findings and the judgment on all the issues involved.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. Now, so far as the impugned common judgment and order passed by the High Court declaring that the acquisition proceedings have lapsed under sub­section (2) of Section 24 of the Act, 2013, is concerned, the same is unsustainable in view of the decision of the Constitution bench of this Court in the case of  Indore  Development Authority<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.Applying the law laid down by this Court in the case of Indore Development Authority (supra) to the facts of the case on hand, the view taken by the High Court while declaring the acquisition proceedings have lapsed under sub­section   (2)   of   section   24   of   the   Act,   2013,   is unsustainable and is just contrary to the law laid down by this Court in the case  Indore   Development   Authority  (supra). Even the same is also not disputed by Shri C. U. Singh, learned Senior Advocate appearing on behalf of the original writ petitioners – original land owners. Therefore, the common judgment and order passed by the High Court allowing   the   writ   petitions   and   declaring   that   the acquisition   proceedings   with   respect   to   the   lands   in question have lapsed under sub­section (2) of section 24 of the Act, 2013 cannot stand and the same deserve to be quashed and set aside. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. As observed hereinabove, though a number of other issues were raised on the legality of the acquisition proceedings under   the   Act,   1894   and   though   other   points   for consideration   were   raised/framed   by   the   High   Court reproduced   hereinabove,   since   none   of   the   issues   are adjudicated by the High Court on merits, we have no other alternative but to remand the matter to the learned Single Judge   for   deciding   the   writ   petitions   afresh   and   to adjudicate on all the other issues, other than the lapse of acquisitions under sub­section (2) of section 24 of the Act, 2013. At the cost of repetition, we observe that the High Court ought to have adjudicated on all the issues raised and ought not to have decided and disposed of the writ petitions, adjudicating only on one issue which has been found to be erroneous. The Division Bench has also not applied   its  mind   to   this   aspect   of  the   matter   and   has simply dismissed the appeals filed by the appellant herein. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12. In view of the above discussion and for the reasons stated above, all  these appeals are allowed. The impugned common judgment and order passed by the Division Bench of the High Court as well as the common judgment and order passed by the   High   Court   in   writ   petition(s)   No. 3884/1998  and  Nos.  37140­-37146/2000  are hereby quashed and set aside. The matters are remitted back to the learned Single Judge to decide   and   dispose   of   the aforesaid writ petitions afresh and in accordance with law and  on their own merits. The learned Single Judgeto adjudicate all other issues which were framed reproduced herein above and pronounce the judgment on all the points framed for consideration. The aforesaid exercise shall be completed within a period of twelve months from the date of receipt of the present order. It is made clear that we have not expressed anything on the merits of these cases, in favour of either of the parties on other issues and it is ultimately for the learned Single Judge to  deal with and consider the same  in accordance with law and on their own merits. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>It is also made clear that on remand the learned Single Judge to adjudicate and pronounce the judgment on all other issues except the issue with respect to the lapse of the acquisition proceedings by virtue of the Act, 2013. All the appeals are allowed accordingly. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>We also observe and direct that Writ Appeal No.1089 of 2021 be heard first and to be decided and disposed of on or before 31.12.2022.  </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>There shall be no order as to costs.</b></font></p>', '2e12cde2cafcc671aa074a82be8a6b0e.jpg', '1de9fc4d36888abe4122974af5bed182.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-24', 1, '', '', '2022-03-23 19:30:09', '2022-03-24 17:40:32');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1467, 'RAUrxyukQmY9x9MHBaRtD5oDn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service rendered on work charge basis can not be the basis for first time bound promotion when the employee is absorbed on a different payscale. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State of Maharashtra and Others Vs Madhukar Antu Patil and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1985 of 2022 decided on 21 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R Shah and Justice B.V Nagarathna</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order dated 09.09.2021 passed by the High Court of Judicature at\r\nBombay in Writ Petition No. 3118 of 2021, by which the High Court has\r\ndismissed the said writ petition preferred by the appellants herein and\r\nhas confirmed the judgment and order dated 25.06.2019 passed by the\r\nMaharashtra Administrative Tribunal, Mumbai (hereinafter referred to as\r\nthe ’Tribunal’), by which the Tribunal allowed Original Application No.\r\n238/2016 and quashed and set aside orders dated 06.10.2015 and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">21.11.2015, thereby down-grading his pay scale and pension, the State\r\nof Maharashtra and others have preferred the present appeal.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. That respondent no.1 herein was initially appointed on 11.05.1982\r\nas a Technical Assistant on work charge basis and continued on the said\r\npost till absorption. By G.R. dated 26.09.1989, 25 posts of Civil\r\nEngineering Assistants were created and respondent no.1 herein was\r\nabsorbed on one of the said posts. Respondent no.1 was granted the\r\nbenefit of first Time Bound Promotion (for short, ‘TBP’) considering his\r\ninitial period of appointment of 1982 on completion of twelve years of\r\nservice and thereafter he was also granted the benefit of second TBP on\r\ncompletion of twenty four years of service. Respondent No.1 retired\r\nfrom service on 31.05.2013. After his retirement, pension proposal was\r\nforwarded to the Office of the Accountant General for grant of pension on\r\nthe basis of the last pay drawn at the time of retirement</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.1 The Office of the Accountant General raised an objection for grant\r\nof benefit of first TBP to respondent no.1 considering his date of initial\r\nappointment dated 11.05.1982, on the basis of the letter issued by Water\r\nResources Department, Government of Maharashtra on 19.05.2004. It\r\nwas found that respondent no.1 was wrongly granted the first TBP\r\nconsidering his initial period of appointment of 1982 and it was found\r\nthat he was entitled to the benefit from the date of his absorption in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">year 1989 only. Vide orders dated 06.10.2015 and 21.11.2015, his pay\r\nscale was down-graded and consequently his pension was also re-fixed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2.2 Feeling aggrieved and dissatisfied with orders dated 06.10.2015\r\nand 21.11.2015 down-grading his pay scale and pension, respondent\r\nno.1 approached the Tribunal by way of Original Application No.\r\n238/2016. By judgment and order dated 25.06.2019, the Tribunal\r\nallowed the said original application and set aside orders dated\r\n06.10.2015 and 21.11.2015 and directed the appellants herein to\r\nrelease the pension of respondent no.1 as per his pay scale on the date\r\nof his retirement. While passing the aforesaid order, the Tribunal\r\nobserved and held that respondent no.1 was granted the first TBP\r\nconsidering his initial period of appointment of 1982 pursuant to the\r\napproval granted by the Government vide order dated 18.03.1998 and\r\nthe subsequent approval of the Finance Department, and therefore, it\r\ncannot be said that the benefit of the first TBP was granted mistakenly.\r\nThe Tribunal also observed that the services rendered by respondent\r\nno.1 on the post of Technical Assistant (for the period 11.05.1982 to\r\n26.09.1989) cannot be wiped out from consideration while granting the\r\nbenefit of first TBP</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2.3 Feeling aggrieved and dissatisfied with the judgment and order\r\npassed by the Tribunal, quashing and setting aside orders dated <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">06.10.2015 and 21.11.2015, refixing the pay scale and pension of\r\nrespondent no.1, the appellants herein preferred writ petition before the\r\nHigh Court. By the impugned judgment and order, the High Court has\r\ndismissed the said writ petition. Hence, the present appeal.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. We have heard Mr. Sachin Patil, learned counsel appearing on\r\nbehalf of the appellants and Mr. Sandeep Sudhakar Deshmukh, learned\r\ncounsel appearing on behalf of the contesting respondent.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3.1 At the outset, it is required to be noted and it is not in dispute that\r\nrespondent no.1 was initially appointed on 11.05.1982 as a Technical\r\nAssistant on work charge basis. It is also not in dispute that thereafter\r\nhe was absorbed in the year 1989 on the newly created post of Civil\r\nEngineering Assistant, which carried a different pay scale. Therefore,\r\nwhen the contesting respondent was absorbed in the year 1989 on the\r\nnewly created post of Civil Engineering Assistant which carried a\r\ndifferent pay scale, he shall be entitled to the first TBP on completion of\r\ntwelve years of service from the date of his absorption in the post of Civil\r\nEngineering Assistant. The services rendered by the contesting\r\nrespondent as Technical Assistant on work charge basis from\r\n11.05.1982 could not have been considered for the grant of benefit of\r\nfirst TBP. If the contesting respondent would have been absorbed on the\r\nsame post of Technical Assistant on which he was serving on work <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">charge basis, the position may have been different. The benefit of TBP\r\nscheme shall be applicable when an employee has worked for twelve\r\nyears in the same post and in the same pay scale.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. In the present case, as observed hereinabove, his initial\r\nappointment in the year 1982 was in the post of Technical Assistant on\r\nwork charge basis, which was altogether a different post than the newly\r\ncreated post of Civil Engineering Assistant in which he was absorbed in\r\nthe year 1989, which carried a different pay scale. Therefore, the\r\ndepartment was right in holding that the contesting respondent was\r\nentitled to the first TBP on completion of twelve years from the date of\r\nhis absorption in the year 1989 in the post of Civil Engineering Assistant.\r\nTherefore both, the High Court as well as the Tribunal have erred in\r\nobserving that as the first TBP was granted on the approval of the\r\nGovernment and the Finance Department, subsequently the same\r\ncannot be modified and/or withdrawn. Merely because the benefit of the\r\nfirst TBP was granted after the approval of the Department cannot be a\r\nground to continue the same, if ultimately it is found that the contesting\r\nrespondent was entitled to the first TBP on completion of twelve years of\r\nservice only from the year 1989. Therefore both, the High Court as well\r\nas the Tribunal have committed a grave error in quashing and setting\r\naside the revision of pay scale and the revision in pension, which were <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">on re-fixing the date of grant of first TBP from the date of his absorption\r\nin the year 1989 as Civil Engineering Assistant.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. However, at the same time, as the grant of first TBP considering\r\nhis initial period of appointment of 1982 was not due to any\r\nmisrepresentation by the contesting respondent and on the contrary, the\r\nsame was granted on the approval of the Government and the Finance\r\nDepartment and since the downward revision of the pay scale was after\r\nthe retirement of the respondent, we are of the opinion that there shall\r\nnot be any recovery on re-fixation of the pay scale. However, the\r\nrespondent shall be entitled to the pension on the basis of the re-fixation\r\nof the pay scale on grant of first TBP from the year 1989, i.e., from the\r\ndate of his absorption as Civil Engineering Assistant.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. In view of the above and for the reasons stated above, the present\r\nappeal succeeds in part. The impugned judgment and order passed by\r\nthe High Court as well as that of the Tribunal quashing and setting aside\r\norders dated 6.10.2015 and 21.11.2015 down-grading the pay scale and\r\npension of the contesting respondent are hereby quashed and set aside.\r\nIt is observed and held that the contesting respondent shall be entitled to\r\nthe first TBP on completion of twelve years from the year 1989, i.e., from\r\nthe date on which he was absorbed on the post of Civil Engineering\r\nAssistant and his pay scale and pension are to be revised accordingly. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>However, it is observed and directed that on re-fixation of his pay scale\r\nand pension, as observed herein above, there shall not be any recovery\r\nof the amount already paid to the contesting respondent, while granting\r\nthe first TBP considering his initial appointment from the year 1982.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. The present appeal is partly allowed to the aforesaid extent. No\r\ncosts.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7c151b2a36f034bc519b4a5dc7e64c1c.JPG', '47a7f97bca507d05d8dcb47ffae25ed2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-24', 1, '', '', '2022-03-23 20:51:26', '2022-03-24 19:28:35'),
(1468, '24MkMPeFnUfEvsnRdeENMwnjz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Penal Code. Section 376. No exemption is absolute. Husband using wife as sex slave can be booked for rape. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Hrishikesh Sahoo Vs The State of Karnataka and Others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 48367 of 2018 decided on 23 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.Nagaprasanna</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>What falls for consideration in the subject writ petition is, “Integrity and bodily freedom of a woman, the wife, being ravaged by the husband, whether, could be absolved and protected by a law that mandates equality of its application”. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>What pervades the entire petition is, “wanton lust, vicious appetite, depravity of senses, loathsome beast of passion, unbridled unleashing of carnal desire of demonish perversion”. It is these that drove the complainant-wife to register a complaint against the husband for offences punishable, inter alia, under Sections 376 and 377 of the Indian Penal Code. Cognizance being taken against the husband for the rape of his wife, is what drives the accused-husband, to this Court.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>12. In the light of the submissions made by the respective learned counsel, the following points arise for my consideration:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b> (i) Whether cognizance being taken against the petitioner-husband for offence punishable under Section 376 of IPC is tenable in law?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(ii) Whether the allegation against the petitioner for other offences is tenable in law?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(iii) Whether the prosecution notwithstanding the presumption under Sections 29 and 30 of the Act has to prove the foundational facts beyond all reasonable doubt?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(iv) Whether the designated Court to try the offences under the Act has jurisdiction to try both the offences under the IPC and the Act in the facts of this case?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(v) Whether chargesheet against the petitioner should be altered to include addition of the offence punishable under Section 377 of IPC? (vi) Whether proceedings under the POCSO Act against the petitioner needs to be interfered with?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>14. To consider this issue, it is germane to notice what drove the complainant to register the complaint and what drives the petitioner-accused No.1 to this Court. The entire issue springs from the complaint registered by the wife alleging commission of brutal sexual acts by the husband against her, as also, sexual abuses against the child. It therefore becomes necessary to notice the complaint and its ghastly narration.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>18. Post Republic, India is governed by the Constitution. The Constitution treats woman equal to man and considers marriage as an association of equals. The Constitution does not in any sense depict the woman to be subordinate to a man. The Constitution guarantees fundamental rights under Articles 14, 15, 19 and 21 which are right to live with dignity, personal liberty, bodily integrity, sexual autonomy, right to reproductive choices, right to privacy, right to freedom of speech and expression. Under the Constitution, the rights are equal; protection is also equal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>19. Close to eight score and three years, the need to tinker with Section 375 of the IPC did not arise. A fateful incident of a gang rape in the capital led to the Union Government constituting a Committee headed by Justice J.S.Verma, to suggest amendments dealing with sexual offences in the Code. The Committee, after prolonged deliberations, gave several recommendations for amendments to criminal law. One such was concerning ‘Marital Rape’. The observations and recommendations of the Committee that are germane to be noticed are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><i><b>“15. The Committee is conscious of the recommendations in respect of India made by the UN Committee on the Elimination of Discrimination against Women (“CEDAW Committee”) in February 2007. The CEDAW Committee has recommended that the country should “widen the definition of rape in its Penal Code to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of rape…..”</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><i><b>72. The exemption for marital rape stems from a long out-dated notion of marriage which regarded wives as no more than the property of their husbands. According to the common law of coverture, a wife was deemed to have consented at the time of the marriage to have intercourse with her husband at his whim. Moreover, this consent could not be revoked. As far back as 1736, Sir Matthew Hale declared: ‘The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract’.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><i><b>73. This immunity has now been withdrawn in most major jurisdictions. In England and Wales, the House of Lords held in 1991 that the status of married women had changed beyond all recognition since Hale set out his proposition. Most importantly, Lord Keith, speaking for the Court, declared, ‘marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband.’</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><i><b>74. Our view is supported by the judgment of the European Commission of Human Rights in C.R. v UK, which endorsed the conclusion that a rapist remains a rapist regardless of his relationship with the victim. Importantly, it acknowledged that this change in the common law was in accordance with the fundamental objectives of the Convention on Human Rights, the very essence of which is respect for human rights, dignity and freedom. This was given statutory recognition in the Criminal Justice and Public Order Act 1994. 75. We find that the same is true in Canada, South Africa and Australia. In Canada, the provisions in the Criminal Code, which denied criminal liability for marital rape, were repealed in 1983. It is now a crime in Canada for a husband to rape his wife. South Africa criminalised marital rape in 1993, reversing the common law principle that a husband could not be found guilty of raping his wife. Section 5 of the Prevention of Family Violence Act 1993 provides: ‘Notwithstanding anything to the contrary contained in any law or in the common law, a husband may be convicted of the rape of his wife.’ In Australia, the common law ‘marital rape immunity’ was legislatively abolished in all jurisdictions from 1976. In 1991, the Australian High Court had no doubt that: ‘if it was ever the common law that by marriage a wife gave irrevocable consent to sexual intercourse by her husband, it is no longer the common law.’ According to Justice Brennan (as he then was): ‘The common law fiction has always been offensive to human dignity and incompatible with the legal status of a spouse.’</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><i><b>76. These jurisdictions have also gone further and recognised that consent should not be implied by the relationship between the accused and the complainant in any event. In the Canadian 2011 Supreme Court decision in R v. J.A., Chief Justice McLachlin emphasised that the relationship between the accused and the complainant ‘does not change the nature of the inquiry into whether the complaint consented’ to the sexual activity. The defendant cannot argue that the complainant’s consent was implied by the relationship between the accused and the complainant. In South Africa, the 2007 Criminal Law (Sexual Offences and Related Matters) Amendment Act (‘Sexual Offences Act’) provides, at s. 56 (1), that a marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><span lang=\"EN-US\" style=\"\">7</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. Even when marital rape is recognised as a crime, there is a risk that judges might regard marital rape as less serious than other forms of rape, requiring more lenient sentences, as happened in South Africa. In response, the South African Criminal Law (Sentencing) Act of 2007 now provides that the relationship between the victim and the accused may not be regarded as a ‘substantial and compelling circumstance’ justifying a deviation from legislatively required minimum sentences for rape.</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>78. It is also important that the legal prohibition on marital rape is accompanied by changes in the attitudes of prosecutors, police officers and those in society more generally. For example, in South Africa, despite these legal developments, rates of marital rape remain shockingly high. A 2010 study suggests that 18.8% of women are raped by their partners on one or more occasion. Rates of reporting and conviction also remain low, aggravated by the prevalent beliefs that marital rape is acceptable or is less serious than other types of rape. Changes in the law therefore need to be accompanied by widespread measures raising awareness of women’s rights to autonomy and physical integrity, regardless of marriage or other intimate relationship. This was underlined in Vertido v The Philippines, a recent Communication under the Optional Protocol of the Convention on the Elimination of Discrimination Against Women (CEDAW), where the CEDAW Committee emphasised the importance of appropriate training for judges, lawyers, law enforcement officers and medical personnel in understanding crimes of rape and other sexual offences in a gender-sensitive manner.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Recommendations</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b> 79. We, therefore, recommend that:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>i. The exception for marital rape be removed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>ii. The law ought to specify that: a. A marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>b. The relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity; c. The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>80. We must, at this stage, rely upon Prof. Sandra Freedman of the University of Oxford, who has submitted to the Committee that that “training and awareness programmes should be provided to ensure that all levels of the criminal justice system and ordinary people are aware that marriage should not be regarded as extinguishing the legal or sexual autonomy of the wife”. (Emphasis supplied) The recommendations of the Committee were accepted by the Union Government partially and amendments were carried out. The present case concerns the amendment to Section 375 of the IPC.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>20. Section 375 of the IPC came to be amended with effect from 10-05-2013 after introduction of Criminal Law Amendment Bill before the Parliament, pursuant to the constitution of J.S.Verma Committee for suggesting amendments to criminal law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>21. The amended exception depicts intercourse by a man with his own wife, the wife not being under 15 years of age would not be a rape. The post amendment the exception adds the words ‘sexual acts’ by a man along with the words ‘sexual intercourse’. The difference is inclusion of the word “or sexual acts”. Therefore, the exception now is of sexual intercourse and other sexual acts by the husband stand exempted. Therefore, a woman being a woman is given certain status; a woman being a wife is given a different status. Likewise, a man being a man is punished for his acts; a man being a husband is exempted for his acts. It is this inequality that destroys the soul of the Constitution which is Right to Equality. The Constitution recognizes and grants such equal status to woman as well. To quota a few:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i>“Article 14 - Equality before law - The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 15 - Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. —</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i>(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i>(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction ….. Article 16 - Equality of opportunity in matters of public employment. –</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i>(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category. Article 21 - Protection of life and personal liberty.— No person shall be deprived of his life or personal liberty except according to procedure established by law. Article 23 - Prohibition of traffic in human beings and forced labour.—</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i>(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i>(2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them. Article 39 - Certain principles of policy to be followed by the State: The State shall, in particular, direct its policy towards securing -</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i> (a) that the citizens, men and women equally, have the right to an adequate means to livelihood;</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i>(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; (d) that there is equal pay for equal work for both men and women; (e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; Article 243-T - Reservation of seats. — (1) … … (2) Not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i>(3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Municipality.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i>(4) The offices of Chairpersons in the Municipalities shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i>(5) The reservation of seats under clauses (1) and (2) and the reservation of offices of Chairpersons (other than the reservation for women) under clause (4) shall cease to have effect on the expiration of the period specified in Article 334.”</i> Article 14 depicts equality before law; Article 15 prohibits discrimination on the ground of religion, race, caste, sex or place of birth; Article 16 mandates equality of opportunity in matters of public employment; Article 21 depicts protection of life and personal liberty to all the citizens of the nation; Article 23 depicts prohibition of trafficking in human beings and forced labour; Article 39 depicts certain principles of policies to be followed by the State in securing rights of its citizens, emphasis is laid on women. Women have been considered to be entitled to reservation under Article 243D in the Panchayats and under Article 243T in the Municipalities in the respective elections.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>22. The aforesaid is the prism that depicts constitutional spirit towards right of its citizens, be it a man or a woman. Equality in Article 14 pervades through the entire spectrum of the Constitution. The IPC itself recognizes several Acts against women to become punishable. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>23. There are several other enactments which have been enacted post the Constitution with the sole objective of protection of woman or a girl child. The soul of these enactments are, protection of women and equal status to women.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>24. On a coalesce of all the afore-said and afore-quoted Articles of the Constitution, the provisions of the IPC and specific Acts promulgated, what would unmistakably emerge is the rights of women, protection of women and their equal status to that of a man without exception. Therefore, women are equal in its true sense factually and legally. The aforesaid provisions are quoted only as a metaphor to demonstrate equality without exception pervading through the entire spectrum of those provisions, the Constitution, the code and the enactments.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>25. As observed herein above, the Constitution, a fountainhead of all statutes depicts equality. The Code practices discrimination. Under the Code every other man indulging in offences against woman is punished for those offences. But, when it comes to Section 375 of IPC the exception springs. In my considered view, the expression is not progressive but regressive, wherein a woman is treated as a subordinate to the husband, which concept abhors equality. It is for this reason that several countries have made such acts of the husband penal by terming it marital rape or spousal rape. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>26. Marital rape is illegal in 50 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia and several others. In the United Kingdom, which the present Code largely draws from, has also removed the exception pursuant to a judgment rendered by the House of Lords in R v. R in the year 1991. Therefore, the Code that was made by the rulers then, has itself abolished the exception given to husbands.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>27. Justice Verma Committee (supra) also recommended for deletion of the exception of marital rape. But, the amendment came about was only replacing the word ‘rape’ with ‘sexual assault’ in Section 375 of IPC. Therefore, the situation now emerges is equality pervades through the Constitution, but inequality exists in the Code qua - Exception-2 to Section 375 of the IPC. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>28. A man who is well acquainted with a woman performs all the ingredients as is found in pre or post amendment to Section 375 of the IPC, can be proceeded against for offences punishable under Section 376 of IPC. Therefore, a man sexually assaulting or raping a woman is amenable to punishment under Section 376 of IPC. The contention of the learned senior counsel that if the man is the husband, performing the very same acts as that of another man, he is exempted. In my considered view, such an argument cannot be countenanced. A man is a man; an act is an act; rape is a rape, be it performed by a man the “husband” on the woman “wife”.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>30. A perusal at the complaint afore-extracted and written communications (which cannot be extracted in the body of the order) would send a chilling effect on any human being reading the contents of it. The wife-the complainant, cries foul in no unmistakable terms that she is being brutally, sexually harassed keeping her as a sex slave for ages. The contents of the complaint are an outburst of tolerance of the wife of the brutal acts of the petitioner. It is akin to eruption of a dormant volcano. In the teeth of the facts, as narrated in the complaint,  in my considered view, no fault can be found with the learned Sessions Judge taking cognizance of the offences punishable under Section 376 of IPC and framing a charge to that effect.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>31. The exemption of the husband on committal of such assault/rape, in the peculiar facts and circumstances of this case, cannot be absolute, as no exemption in law can be so absolute that it becomes a license for commission of crime against society. Though the four corners of marriage would not mean society, it is for the legislature to delve upon the issue and consider tinkering of the exemption. This Court is not pronouncing upon whether marital rape should be recognized as an offence or the exception be taken away by the legislature. It is for the legislature, on an analysis of manifold circumstances and ramifications to consider the aforesaid issue. This Court is concerned only with the charge of rape being framed upon the husband alleging rape on his wife. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>32. Every ingredient of rape is met with in the alleged complaint. If it were to be a common man, the allegation on the face of it be punishable under Section 376 of IPC, why not the husband-petitioner. It is for the petitioner to come out clean in the trial, if he is so much in the defensive of his acts. Interjecting the trial in the teeth of the aforesaid complaint and the charge being framed would become a travesty of justice. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>33. Therefore, in the light of the ghastly allegations against the petitioner-husband in the complaint and several other communications, I find no error committed by the learned Sessions Judge in taking cognizance, framing the charge under Section 376 of the IPC and also rejecting the application to drop the said charge. If the allegation of rape is removed from the block of offences alleged, it would, in the peculiar facts of this case, be doing tremendous injustice to the complainant-wife and would amount to putting a premium on the carnal desires of the petitioner. Therefore, the point that has arisen for my consideration is held in favour of the prosecution and against the petitioner.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2e0230cadf653b281ad5782d566c7995.jpeg', '1b0d8ce14bb874cd3e53aef3af1017d2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-23', 1, '', '', '2022-03-23 22:04:53', '2022-03-24 03:48:42');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1483, 'tH9jhWjbDOoAfWDn4hOLZ01oU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Part of Paddy Land procured after the commencement of Kerala Conservation of Paddy Land and Wetland Act of 2008 cannot be reclaimed for construction of residential building. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sabeena E.K Vs District Collector and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition(c) 17301 of 2020 and connected matters decided on 23 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.Manikumar, Justice Shahji P.Chaly and Justice Satish Ninan.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The basic question involved in all these writ petitions is,\r\nwhether a person, who purchased a bit of paddy land after the\r\ncommencement of the Kerala Conservation of Paddy Land and Wetland\r\nAct, 2008 (hereinafter called \'the Act, 2008), is entitled to prefer an\r\napplication under Section 5(3)(i) r/w Section 9 of Act, 2008 for\r\npermission to reclaim the same, for construction of a residential\r\nbuilding. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. In fact, the said question was answered in the negative by a\r\nlearned single Judge of this Court in Thankachan v. District\r\nCollector [2017 (3) KLT 35], which was followed by a learned single\r\nJudge in Yousuf Chalil v. State of Kerala [2019 (4) KLT 33];\r\nhowever the said Judgment was reversed by a Division Bench in\r\nYousuf Chalil (supra), and held that applications filed by the\r\npurchasers of a bit of paddy land, for reclamation for construction of a\r\nresidential building, after the coming into force of Act, 2008 are also\r\nliable to be considered by the statutory authorities under Act, 2008.\r\nThe petitioners in the instant writ petitions are claiming the benefit of\r\nthe Division Bench judgment in Yousuf Chalil (supra).\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. In some of the writ petitions, challenge is against the order\r\npassed by the primary as well as the appellate authority under the Act,\r\n2008 and in some others, the order passed by the primary authority is\r\nunder challenge and in yet another set of writ petitions, the\r\napplications are pending before the primary authority.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. As pointed out above, the subject matter arises under the Act,\r\n2008. The term \'paddy land\' is defined under Section 2(xii) of the Act,\r\n2008 to mean all types of land situated in the State where paddy is\r\ncultivated at least once in a year or is suitable for paddy cultivation but\r\nis uncultivated and left fallow, and it includes its allied constructions\r\nlike bunds, drainage channels, ponds and canals.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. As per Section 3(1) of the Act, 2008 dealing with ‘prohibition\r\non conversion or reclamation of paddy land’, on and from the date of\r\ncommencement of the Act, the owner, occupier or the person in\r\ncustody of any paddy land shall not undertake any activity for the\r\nconversion or reclamation of such paddy land, except in accordance\r\nwith the provisions of the Act. However, sub-Section (2) thereto\r\nspecifies that nothing contained in sub-section (1) shall apply to the\r\ncultivation of any intermediary crops that are cultivated without\r\nchanging the ecological nature of the paddy land, or the strengthening\r\nof the outer bunds for protecting the cultivation.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Therefore, on a close analysis of Section 3, it can be seen\r\nthat after the introduction of the Act, 2008, on and with effect from\r\n12.08.2008, no owner, occupier or the person in custody of any paddy\r\nland can undertake any activity for the conversion or reclamation of\r\nsuch paddy land, except in accordance with the provisions of the Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Section 5 deals with constitution of Local level Monitoring\r\nCommittee and sub-Section (1) specifies that there shall be a Local\r\nLevel Monitoring Committee in each Panchayat or Municipality,\r\nconsisting of the members specified in sub-section (2), for the purpose\r\nof monitoring the implementation of the provisions of the Act. To sort\r\nout the issue at hand, sub-Section (3) of Section 5, which deals with\r\n‘the power of the Local Level Monitoring Committee’, is significant.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. Therefore, according to the petitioners, if such an\r\ninterpretation is given, it creates chaos, confusions and friction in the\r\nworking of the statute and hence, ordinary, normal and literal\r\ninterpretation of the term \'owner\' is to be adopted. It is submitted that\r\nif such a differentiation is to be made by and between a pre-statute\r\nowner and post statute owner, it would be clearly violative of Article 14\r\nof the Constitution of India. It is also pointed out that the statement\r\nof objects and reasons for the introduction of Act, 2008 clearly shows\r\nthat the Act has only intended to regulate the reclamation and not a\r\ncomplete prohibition from reclaiming a paddy land.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. That apart, it is submitted that the right in immovable\r\nproperty is a vested right and the same cannot be taken away, except <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by a legislation with specific parameters and not by an interpretative\r\nprocess, especially when the term \'owner\' is not defined in the Act.\r\nTherefore, according to the petitioners, on a conjoint reading of\r\nSections 3, 5(3) and 9, it is clear that every owner of paddy field,\r\nirrespective of purchase of bit of paddy land after the introduction of\r\nAct, 2008, is entitled, as of right, to make an application seeking\r\nreclamation for the construction of a residential building.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>31. Respective counsel have also submitted that if a restrictive\r\ninterpretation is made to the term ‘owner’ contained in the aforesaid\r\nprovisions, the constitutional right conferred on the owner of a\r\nproperty under Article 300A of the Constitution of India would become\r\notiose. That apart, it is submitted that the non obstante clause\r\ncontained in Section 9 makes it clear that it takes in the whole of\r\nSection 3, and the right of a subsequent owner after the introduction\r\nof Act, 2008 is salvaged by employing the non obstante clause in\r\nSection 9. It is further submitted that the right in immovable property\r\nis a right in rem and is an essential and fundamental principle of\r\nProperty Law. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>33. In our considered opinion, the expression \'owner of a paddy\r\nfield\' specified under the provisions of sections deliberated above, has\r\nto be considered in the backdrop of the statement of objects and the\r\nreasons discussed above. The State of Kerala, once upon a time, was a\r\nself sufficient State in the matter of paddy cultivation, and production\r\nof rice for the use of people in the State; however, finding that the\r\ncultivation is not feasible, the owners have started cultivation of other\r\ncrops by filling up the paddy fields, and also started construction of\r\nbuildings of various categories by developing the paddy fields. Even\r\nthough the Kerala Land Utilisation Order, 1967 was in force and\r\nimperative conditions were incorporated in the said legislation to\r\nsecure permission from the District Collectors of the concerned\r\nDistricts to utilise the paddy land for other purposes, it was not an\r\neffective one so as to curb the menace of conversion of paddy fields\r\nand reclamation of the same.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. It was in the above backdrop that the State Government\r\nhas introduced the Act, 2008 on and with effect from 12.08.2008,\r\nwhich Act is extending to the whole of the State of Kerala. The Act has\r\nundergone amendments in 2011, 2015, 2016, 2018 and 2020 in order\r\nto tackle various situations. In fact, as per the provisions of the Act,\r\n2008, the Local Level Monitoring Committee is empowered to prepare <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">a data bank of the paddy fields within the respective\r\nPanchayats/Municipalities/Corporation. However, later the State felt\r\nthat some of the properties included in the data bank were already\r\nreclaimed and thereupon, a proviso to Section 5(4) was introduced in\r\nthe Act, 2008 empowering the Revenue Divisional Officer concerned to\r\nconsider any application for removal of the property from the data\r\nbank.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>35. Section 27A of the Act was introduced on and with effect\r\nfrom 30.12.2017 and rules were also framed in order to grant\r\npermission for change of nature of the unnotified paddy land </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>36. Therefore, the regulation intended by the Government in the\r\nobjects and reasons of the Act is the utilization of the paddy field <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">already converted for other purposes when the Act came into force,\r\nand the intention was to protect and maintain the existing paddy field\r\nalready included in the data bank and which remained as such when\r\nthe Act came into force. To cite an example, if the original owner is\r\nhaving an extent of one acre of paddy land in a panchayat area and if\r\nhe sells the same to 10 persons who are not having any other suitable\r\nland for construction of a house, then the purchasers are entitled to\r\nmake an application seeking reclamation of the land in contemplation\r\nof Section 5(3) r/w Section 9 of the Act, 2008 and if that is permitted,\r\nsuccessively, the prohibition contained under Section 3 of the Act,\r\n2008 can be easily flouted.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">37. The intention of the Act, 2008 has to be taken into account\r\nwhile interpreting the term \'owner\' specified in Sections 3, 5(3) and 9\r\nof the Act, 2008. The terminology ‘owner’ employed under the said\r\nprovisions of the Act, 2008 has to be given a purposive and literal\r\ninterpretation, since it is with the object of protecting the paddy fields\r\nfrom being reclaimed and used for other purposes, the Act, 2008 was\r\nintroduced. In our view, if any other interpretation is given to the word\r\n\'owner\', it would clearly defeat the natural and ordinary sense\r\nintended by the framers of law to it. Therefore, the term \'owner\'\r\ncontained under the provisions would have to be given a strict\r\ninterpretation insofar as the undertaking of any activity for the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">conversion or reclamation of such paddy land is concerned as\r\ncontemplated under the aforementioned provisions. When we analyse\r\nthe purport of the Act, we feel that the provisions of the Act are to be\r\nread together to assign meaning to the significant terminologies\r\nemployed in the provisions, failing which we would be doing injustice\r\nto the legislative intent to sustain and promote paddy cultivation in the\r\nState.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>38. Merely because a bit of paddy land is purchased by a\r\nperson, subsequent to the introduction of the Act, 2008, that will not\r\npreclude the purchaser to utilise the paddy field for cultivation of\r\npaddy, and in that sense, the purchaser becomes an owner; and there\r\nis no prohibition or other inhibitions created under the Act, 2008\r\ndetaining the purchaser/owner from carrying on with paddy\r\ncultivation. Therefore, the purchaser of a bit of paddy land,\r\nsubsequent to the introduction of the Act, 2008, would definitely be an\r\nowner of a paddy land, but he is not entitled to get the benefit of\r\nSection 5(3) r/w Section 9 of the Act, 2008.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">39. On a perusal of Section 9(8), it is clear that while making\r\nthe recommendation, the Local Level Monitoring Committee shall\r\nspecify that such reclamation shall not adversely affect the ecological\r\nconditions and cultivation in the adjoining paddy land; the owner of\r\nthe paddy land or his family does not own suitable land for the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">purpose in that District; and that the building is to be constructed for\r\nhis own purpose; and such paddy land is not situated surrounded by\r\nother paddy lands. So, even for an original owner of paddy land, the\r\npermission for reclamation in contemplation of Section 5(3) r/w\r\nSection 9 is not absolute, which makes it clear that the provisions of\r\nSections 3, 5(3) and 9 would have to be given the utmost strict\r\ninterpretation insofar as the ‘owner’ of the paddy land specified\r\nthereunder is concerned.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>40. Again, it is clear from Section 9(8)(ii) that the owner of the\r\npaddy land, is entitled to secure the benefit of the provision for\r\nreclamation, only if the owner or his family does not own a suitable\r\nland for the purpose anywhere in the District, which also clearly\r\nexposes the strict sense intended by the legislature to the term ‘owner\r\nseeking reclamation’.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>41. Taking into account the above aspects, we are of the\r\nconsidered opinion that the owner of the paddy land who is entitled to\r\nseek conversion or reclamation in contemplation of the provisions of\r\nAct, 2008, is the owner of the paddy land on the date of coming into\r\nforce of the Act, 2008 i.e., 12.08.2008.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>42. Therefore, we have no hesitation to hold that the decision\r\nrendered by the learned single Judges in Thankachan, Yousuf Chalil\r\nand Sudheesh R (supra) that a purchaser of a bit of paddy land after <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the coming into force of Act 2008 is not entitled to seek reclamation of\r\nthe paddy land for construction of a residential building is the correct\r\nlaw, and the judgment of the Division Bench in Yousuf Chalil v.\r\nState of Kerala and others (supra) is not the correct law.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>43. Normally, in view of the reference answered as above, the\r\nwrit petitions ought to have been sent back to the learned single Judge\r\nfor appropriate consideration. But, as per the documents produced\r\nand the pleadings put forth in the writ petitions, it is quite clear and\r\nevident that all the petitioners, except the petitioner in W.P.(C) No.\r\n18356 of 2020, are purchasers of a bit of paddy land after the coming\r\ninto force of the Act, 2008 and therefore, no interference can be made\r\nto the order passed by the primary and appellate authorities, and no\r\ndirection can be given to the primary authority for consideration of the\r\npending applications under Section 5(3) r/w Section 9 of the Act,\r\n2008, and therefore it would not serve any purpose. Therefore, we\r\ndismiss all the other writ petitions, in view of the findings rendered\r\nabove.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">44. Insofar as the petitioner in W.P.(C) No. 18356 of 2020 is\r\nconcerned, she is the beneficiary of a settlement deed executed by\r\nand between the legal heirs of a deceased owner of a paddy land. In\r\nthe light of the law laid down by us as above, it needs to be\r\nascertained as to who was the owner of the land in question as on </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12.08.2008 and whether such person satisfied all the stipulations\r\nunder Sections 5 and 9 of the Act, 2008. As per Section 9(8), it is\r\nclear that neither the owner of a paddy land, nor his family shall own\r\na suitable land. In that view of the matter, we are of the opinion that\r\nthe application submitted by the said writ petitioner can be directed to\r\nbe reconsidered in accordance with law.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> Therefore, the said writ petition is allowed and accordingly, we\r\nquash Ext. P5 order dated 08.02.2019 passed by the Local Level\r\nMonitoring Committee, and consequently direct the Local Level\r\nMonitoring Committee, Thykkattuserry, Alappuzha District, the 2nd\r\nrespondent therein, to reconsider the application submitted by the\r\npetitioner in contemplation of Section 5(3) r/w Section 9 of the Act,\r\n2008, in the light of the law laid down as above.</span></b></span></p>', '88cf8d51ea0dce78323af68f97317f37.jpeg', '4e34468c2193b557980f17bb440c145a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-12', 0, '', '', '2022-03-27 17:29:49', '2022-04-12 09:11:29'),
(2836, 's3zR1EIJbsxIvJiOy68cWibXC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Kerala Conservation of Paddy and Wetland Act, 2008. Only for the reason that property is lying as fallow, the same cannot be termed as paddy land or wetland under the Act. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Sudheesh. U Vs The Revenue Divisional Officer Palakkad and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">WP (C) 39909 of 2022 decided on 16 March 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Viju Abraham.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The above writ petition is filed challenging Ext.P2 order whereby the application submitted by the petitioner in Form 5 under Rule 4 (4d) of the Kerala Conservation of Paddy and Wetland Rules 2008 was rejected.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. Petitioner is the absolute owner and in possession of 0.0481 hectares of land comprised in Old Survey No. 177/2, 7, resurvey block No. 3, resurvey No. 6/22 of Puthunagaram Village, Palakkad Taluk, Palakkad District. The petitioner submits that the property is a garden land situated in a residential area, surrounded by houses and road. Even though the property is garden land, it has been wrongly included as paddy land in the land data bank of Puthunagaram Grama Panchayat. Thereupon, the petitioner preferred an application in Form 5 seeking to delete the above property from the land data <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">bank. The said application was rejected as per Ext P2 order for the reason that the property is lying fallow and there are paddy cultivation nearby and conversion will affect the flow of water and the environment. The petitioner submits that his property is a garden land which is in a residential area that has been converted long back, and these aspects were not properly considered while issuing Ext P2 order. Petitioner further submits that no site inspection was conducted or a report from the KSREC was obtained by the 1st respondent before issuing Ext P2 order. Only for the reason that the property is left fallow and there are paddy lands nearby, the application submitted by the petitioner cannot be rejected.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">4. I have considered the rival contentions. The question to be considered is whether the reason stated in Ext P2 for rejecting the application is legally sustainable. It is settled law that it is the character and fitness of the land, as available on 12.08.2008, i.e., date of coming into force of the Kerala Conservation of Paddy and Wetland Act, 2008, (hereinafter referred to as \'the Act 2008\') that is relevant for inclusion or exclusion of the land in the data bank. (See the judgment in Joy v. Revenue Divisional Officer/Sub Collector, [2021 (1) KLT 433] and Arthasasthra Ventures (India) LLP v. State of Kerala, [2022 (4) KLT OnLine 1222]. A perusal of Ext. P2 order would reveal that there is no consideration by the 1st respondent as to whether the land in question was a paddy land when the Act 2008 came into force and whether the land is fit for paddy cultivation. The specific case of the petitioner is that no site inspection nor report from the KSREC was obtained before rejecting the application as per Ext P2. In Arthasasthra’s case (supra), this Court has held that if the Revenue Divisional Officer is not satisfied with the available materials, the said authority ought to have resorted to scientific <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">data including satellite photographs obtained from KSREC. Therefore, the action of the 1st respondent in rejecting the application of the petitioner without ascertaining as to the character and fitness of the land as on 12.08.2008 and as to whether it was fit for paddy cultivation, without even conducting a site inspection or calling for a report from the KSREC, is absolutely arbitrary and unjust.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">5. Another reason stated for rejecting the application is that the land is lying as fallow. Paddy land is defined in Section 2(xii) of the Act, 2008 as follows:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><span style=\"font-weight: bolder;\">“2(xii). \'paddy land\' means all types of land situated in the State where paddy is cultivated at least once in a year or suitable for paddy cultivation but uncultivated and left fallow, and includes its allied constructions like bunds, drainage channels, ponds and canals;”<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Going by the definition in Section 2(xii) of “paddy land” in the Act, 2008, to bring in a land within the definition of paddy land, it should be suitable for paddy cultivation, but uncultivated and left fallow. Just for the reason that the property is left fallow, the land cannot be brought within the definition of paddy land <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">but the Revenue Divisional Officer should be satisfied that the land is suitable for paddy cultivation and left fallow and therefore only on satisfaction of the said twin conditions that a land could be treated as paddy land coming under the definition of Section 2(xii) of the Act, 2008. This Court in Mather Nagar Residents Association and another v. District Collector, Ernakulam, [2020 (2) KHC 94] has held that only for the reason that property is lying as fallow, the same cannot be termed as paddy land or wetland under the Act,2008. A perusal of Ext.P2 order reveals that no such consideration was done by the 1st respondent while rejecting the application submitted by the petitioner. The stand taken in the counter affidavit that from the apparent appearance of the property it is a paddy land will only reflect total nonapplication of mind and the casual way in which the application submitted by the petitioner was considered.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">6. Therefore, Ext.P2 order is set aside with a consequential direction to the 1st respondent to reconsider the application in accordance with the provisions of the Act and Rules of 2008 and after conducting a site inspection, and calling for a fresh report <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">from the Agricultural Officer concerned, if required after obtaining a report from the KSREC, which shall be at the expense of the petitioner, and also after taking into consideration the directions in Joy’s case and Arthasasthra’s case (supra). A decision as directed above shall be taken within a period of 3 months from the date of receipt of a copy of the judgment.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">With the aforesaid direction, the writ petition is disposed of.</span></span></span></p>', 'cf18832b3346a191d95a98877a5bb3be.jpeg', '556805b09857def85cbf7ce73f0e6d7f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-27', 1, '', '', '2023-03-26 14:18:37', '2023-03-27 07:06:05'),
(2838, 'vfzU9eDBJN0DcrPH4Eswhe1wM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Externment under the Karnataka Police Act. Authorities must remember that what is being taken away from the citizen is a fundamental right. Reasonable opportunity mandated under the Act must be followed. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>T. Roopeshkumar Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 392 of 2023 decided on 21 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Facts in brief, that lead the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is a resident of Kunigal Taluk. No other issue regarding his residence need be gone into. The petitioner gets embroiled in several criminal cases. The cases pending against the petitioner as on date are (i) Crime No.108 of 2019 which comes to be registered on 26-06-2019 for offence punishable under Section 87 of the Karnataka Police Act, 1963 (hereinafter referred to as ‘the Act’ for short) and the Police having filed the charge sheet in the said case, it is pending before the Senior Civil Judge and JMFC at Kunigal in C.C.No.3697 of 2022. (ii) The second crime that is registered against the petitioner in Crime No.24 of 2020 on 01-03-2020 is again for offences punishable under Section 87 of the Act. The Police have filed a charge sheet in respect of the said crime in C.C.No.3610 of 2022 before the same Court. (iii) The third crime that is registered against the petitioner is in Crime No.195 of 2021 on 18.12.2021 for offences punishable under Sections 341, 504, 323, 363 and 34 of the IPC. The Police after investigation have filed a charge sheet in this case also in C.C.No.132 of 2022. These are admitted cases that are pending against the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>The petitioner was also accused in several crimes in the past. In C.C.No.538 of 2017 for offences punishable under Section 379 of IPC, Sections 4(1A) and 21(1) of MMRD Act, Sections 3, 42 and 44 of Karnataka Minor Mineral Consistent Rules, 1994 and Sections 3 and 181 of the Indian Motor Vehicles Act and the petitioner gets acquitted on 27-12-2018. The other crime was for offences punishable under Section 379 of IPC in C.C.No.616 of 2017 in which also the petitioner is acquitted on 24-07-2019. The third crime that was registered against the petitioner was for offences under Section 269 of IPC and Section 87 of the Act in C.C.No.109 of 2022. This also ends in acquittal on 22-09-2022. Therefore, the three earlier cases that were pending against the petitioner have ended in acquittal and the three afore-mentioned are pending consideration.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>The afore-narrated facts are cases where the petitioner was an accused. What is pending consideration is necessary to be noticed. Three cases where the petitioner is an accused two cases – C.C.No.3607 of 2022 and C.C.No.3610 of 2022 - are for offences punishable under Section 87 of the Act, a non-cognizable offence. The only case pertaining other than the aforesaid non-cognizable offence is C.C.No.132 of 2022 for offences punishable under Sections 341, 504, 323, 363 and 34 of IPC which is pending trial. The petitioner in the past had got himself embroiled in three other cases which have all been acquitted and therefore, reference to those cases is unnecessary. Substantially what remains as an offence against the petitioner is C.C.No.132 of 2022 and for a solitary case whether the order of externment would stand the test of law is what is necessary to be answered. The answer to this issue need not detain this Court or delve deep into the matter as the Apex in the case of DEEPAK v. STATE OF MAHARASHTRA has considered the purport of the order of externment and its impact upon the fundamental right of the person.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The Apex Court clearly holds that externment is not an ordinary measure and must be resorted to sparingly, only in extraordinary circumstances, as an order of externment takes away the fundamental right of movement under Article 19(1)(d) of the Constitution of India. Therefore, the Apex Court has clearly held that it must stand the test of reasonableness as contemplated in Clause (5) of Article 19 of Constitution of India. Since the interpretation of the Apex Court of the provisions of the Maharashtra Police Act are in pari materia with the Act, it would become applicable to the case at hand. The crux of the provision is that there should be minimum proximity or necessity for passing an order of externment against any person, in the case at hand the petitioner. The description of cases against the petitioner are all noticed hereinabove, all of which would lead to an unmistakable conclusion that, on a solitary case of offences under the IPC, fundamental right of the petitioner could not be taken away and in the considered view of this Court it would not stand the test of reasonableness as obtaining under Article 19(5) of the Constitution of India. If the facts of the case on hand are considered on the bedrock of the principles laid down by the Apex Court in the case of DEEPAK (supra), the order impugned would lose its legal legs to stand and would be rendered unsustainable.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>Yet another factor that is to be noticed is that the order being contrary to the mandate of Section 58. Section 58 (supra) directs grant of reasonable opportunity. The Authorities must remember that what is being taken away from the citizen is a fundamental right. Therefore, reasonable opportunity that is mandated under Section 58 must be scrupulously adhered to, and if such adherence is to be discernible at the bare minimum furnishing of a report against the person against whom the order of externment is pending issuance to the said person. The petitioner or the like is entitled to know as to why an order of externment is being passed and on the basis of what? It is an admitted fact, in the case at hand, no report was even made available to the petitioner at the time of issuance of show cause notice nor was he provided with such report at the  time when he appeared before the 2nd respondent in answer to a notice. Since Section 58 mandates examination of witnesses also as a right of the person against whom order of externment would be passed, furnishing of a report upon him becomes imperative and if that cannot be done it should be for reasons to be recorded in writing, as there can be situations where there is impending urgency or extenuating circumstances where a person has to be externed without any loss of time. It is then those reasons should be recorded in writing in adherence to Section 58. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>It is admitted fact in the case at hand that none of those situations have arisen for immediate order of externment to be passed against the petitioner. Even on that score the order of externment passed against the petitioner is rendered unsustainable. On both these counts – one being no circumstance warranting curtailment of fundamental right of the petitioner in terms of what is laid down by the Apex Court in the case of DEEPAK (supra) and the other, being the order in gross violation of Section 58 of the Act - the petition deserves to succeed.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(i)<span style=\"white-space:pre\">	</span>Writ Petition is allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '97aa2a9234ca6cd990f1e717cae2021f.jpeg', 'af53398eb3ce061cfa226368f9325350.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-29', 1, '', '', '2023-03-26 14:36:41', '2023-03-29 06:56:43');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2839, 'XNYeIy4xyqZzuGoSbEtH7muog', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Disqualification of a tenderer or termination of contract can happen only in tune with clauses of the tender”. Karnataka High Court orders restoration of tender which was recalled arbitrarily. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kanchan India Limited and others Vs Karnataka Power Corporation Limited.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 3813 of 2023 decided on 16 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>First petitioner is Kanchan India Limited and the 2nd petitioner is Emta Coal Limited. Both these companies are incorporated under the Companies Act, 2013. The respondent is the Karnataka Power Corporation Limited (‘the Corporation’ for short). The petitioners are knocking at the doors of this Court in the subject writ petition calling in question notification communicated by electronic mail dated 04-11-2022, by which the Corporation recalls the tender notified on 02-12-2020 and have sought a writ in the nature of mandamus directing restoration of tender in favour of the petitioners.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space:pre\">	</span>Brief facts that lead the petitioners to this Court in the subject petition, as borne out from the pleadings, are as follows:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> The Corporation issued a notice inviting tender for Selection of a Mine Operator for development and operation of Mandakini-A coal block and supply of 7.5 million tonnes per annum of coal for a period of 15 years, which could be extended for a term of 10 years on mutually agreeable terms and conditions. After the notice inviting tender, both the petitioners enter into a consortium agreement forming the consortium by name EMTA-KIL (hereinafter referred to as ‘the consortium’ for short) to participate in the tender, on 02.12.2021. After about 14 months of notifying the said tender, bids were called. On 18-01-2022, the aforesaid consortium participated in the tender and submitted all the necessary documents including a Bank guarantee for `3,74,00,000. After submission of the bid by the consortium, the Corporation holds its 285th Board Meeting for evaluating the tenders submitted. There were two tenderers. The tenders submitted to the Tender Inviting Authority and scrutiny made by the Tender Scrutiny Committee, were placed before the Board of Directors for a decision on both the evaluation report and the documents submitted by tenderers. The consortium emerged as the lowest bidder and was called for negotiation with regard to the price. The petitioners claim to have agreed for reduction of price in the negotiation.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>The petitioners then claimed to have filed an application on 15.11.2022, under the Right to Information Act seeking minutes of 284th, 285th and 287th meetings of the Board of Directors relating to cancellation of original tender. The application was rejected on certain grounds. A second application for the same purpose also comes to be rejected on 07-01-2023. In the interregnum, on 28- 12-2022, pursuant to a decision for re-tendering entire process, a pre-tender scrutiny committee is constituted. On 07-02-2023, the Corporation calls for fresh tenders by issuing the notification for the same work in which the petitioners earlier had emerged as the lowest bidders. The bid submission date has been extended from time to time. It is the aforesaid action of recalling the tender and issuing fresh tender is what is called in question in the case at hand.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>I have given my anxious consideration to the submissions made by the respective learned senior counsel and perused the material on record. In furtherance whereof, the issue that falls for consideration is, <i>whether the respondent/Corporation was right in law in recalling the earlier tender and issuing fresh tender notification in the peculiar facts and circumstances of the case.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">11.<span style=\"white-space:pre\">	</span>The afore-narrated facts are not in dispute. The 1st petitioner was incorporated on 10-06-1998 and the 2nd petitioner on 19-03-2010. The Corporation issues a notice inviting tender calling for bids for “Selection of a Mine Operator (MO) for development and operation of the Mandakini-A coal block”. The tender was for a period of 15 years, which could be extended for a further period of 10 years.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>In the case at hand, the tender was notified in the year 2020 i.e., 02-12-2020. Two years pass by and bids were not called. The bids were directed to be submitted only in the year 2022. Therefore, the bids come to be submitted by the tenderers only on 18.01.2022. After scrutiny of documents the petitioners/ consortium was called for negotiations with the Tender Scrutiny Committee as they had emerged as the lowest bidders viz., the bid of the consortium was at `850 per metric ton as compared to `1150 per metric ton of the other tenderer/L2.   On negotiations of price, the consortium brings down the price from `825 to `725. Therefore, the difference between L1 and L2 goes beyond `500 per metric ton. The price negotiation was also accepted by the Tender Scrutiny Committee on 23-08-2022.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>It is not the law that elaborate reasons have to be indicated while rejecting the tender. Rejection of tender of a successful bidder with whom negotiations have taken place and all that remained was issuance of work order, the rejection of tender ought to have contained reasons for recalling the tender and rejection of the tender of the consortium. The communication does not bear any application of mind as to why the tender is recalled and why tender of the petitioner is rejected. It is this arbitrariness that entails a judicial review of the decision making process by a Corporation, which is a State, under Article 12 of the Constitution of India in exercise of jurisdiction of this Court under Article 226 of the Constitution of India.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 19.<span style=\"white-space:pre\">	</span>In the normal circumstances, conditions of tender rejection or recalling of tender would not become a subject matter of judicial review as this Court would not sit in the arm chair of experts like the Tender Scrutiny Committee for its action suffering in cases, where it would depict arbitrariness. It would depict arbitrariness if no reasons are indicated for recalling of the tender after all the nuances upto the issuance of work order was completed. Power under Section 14 of the Act cannot be exercised in an arbitrary manner which is the issue in the case at hand.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. Rejection of the bid is a one line communication. Reasons for such rejection are in such elaboration stated in the statement of objections justifying the action. Therefore, such reasons could have been furnished while communicating the rejection of tender or recalling of the tender instead of a Justification with such elaborate reasons through the statement of objections. The communication being a single line cannot, this be countenanced. Reliance is placed upon the judgment of the Apex Court in the case of SILPPI CONSTRUCTIONS CONTRACTORS v. UNION OF INDIA AND ANOTHER by the learned counsel appearing for the respondent to contend that tenderers therein, at the time of submitting their tender had suffered some adverse remarks and the Apex Court upheld the rejection of tender on the ground that they had suffered adverse remarks.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>The Apex Court holds that the partners of petitioners firm therein were Directors of the sister company against whom adverse remarks had been made and the contention against those adverse marks was not contested before the Apex Court. Therefore, the said judgment is distinguishable without much ado. In the case at hand, though the order of conviction is hanging on the head of Himachal EMTA Coal Limited, it is a consortium with company “Himachal” which is not the 2nd petitioner. The 1st petitioner has not suffered any conviction. The 2nd petitioner independently has not suffered any conviction nor had suffered any disqualification at the time of submission of bid by the consortium. It is after the scrutiny and before issuance of award of contract, two directors of the 2nd petitioner, who had by then resigned, have suffered conviction but it is not the 2nd petitioner, which has suffered conviction. The petitioners in their reply clarified the entire position. There was no warrant for the Tender Scrutiny Committee to have recalled the tender and on such recalling the tender, rejected the tender of the consortium. Therefore, the action impugned suffers from the vice of arbitrariness and the rejection of the tender is completely contrary to the conditions of tender, which depict the power for rejecting the tender. The tender is rejected on the agreement that is signed by the consortium, which is the business transparency agreement. The transparency agreement indicates that the tenderer will not commit any offence under the IPC or under the provisions of Prevention of Corruption Act and so on, and so forth, but they are all after the contract being awarded in favour of the successful bidder. In the considered view of this Court there is no condition in the tender that would entail rejection of the tender. Reference being made to the judgment of the Apex Court in the case of CARETEL INFOTECH LIMITED v. HINDUSTAN PETROLEUM CORPORATION LIMITED AND OTHERS2 in the circumstances becomes apposite.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>The afore-quoted judgments of the Apex Court and that of the Division Bench of the High Court of Gujarat as also the order of the learned single Judge of the High Court of Delhi would all lead to one unmistakable conclusion that, disqualification of a tenderer or termination of contract can happen only in tune with clauses of the tender. The clauses of tender, quoted hereinabove, bore no obligation on the tender to divulge all that is now taken note of, for rejecting the tender of the petitioner. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>19.<span style=\"white-space:pre\">	</span>The learned senior counsel for the petitioners informs that pursuant to fresh tender notification dated 07-02-2023 not even a single bidder has come forward by submitting his bid though the notification is now close to 35 days. The learned senior counsel representing the respondent would admit that there are no bids received in terms of the fresh tender notification. This again becomes an added factor towards the success of the writ petition. Therefore, for all the aforesaid reasons, I find that recalling of the tender and consequent rejection of the tender of the consortium being hit by the vice of arbitrariness and as a consequence thereof, requires obliteration. The obliteration would necessarily lead to a mandamus being issued to the respondent to take the negotiations with the petitioners after the consortium emerging as L1, to its logical conclusion as there are no bidders even in the fresh notification.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>ORDER </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(i)<span style=\"white-space:pre\">	</span>Writ Petition is allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '89ca3c4d3f8aae3c8b8535d3bc696a59.jpeg', 'dc8a219d92843a52bc0967d8c9fae08b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-28', 1, '', '', '2023-03-27 14:57:22', '2023-03-28 12:23:49'),
(1475, 'zhfZD62UylnbK7SH8t4aLTLuf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'End this ‘Yuddh Kand’ and allow the appellant to move from ‘Karm Kand’ to ‘Karm Phal Kand\'\'. Supreme Court while ordering regularisation of diploma holder to the post of Lecturer. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Dinesh Chandra Shukla Vs State of UP and Others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 1913 of 2022 decided on 24 March 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Hemanth Gupta and V. Ramasubramanian.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">1. Aggrieved&nbsp;by&nbsp;the&nbsp;dismissal&nbsp;of&nbsp;his&nbsp;writ&nbsp;petition&nbsp;seeking&nbsp;to&nbsp;quash an&nbsp;order&nbsp;of&nbsp;the&nbsp;Chancellor&nbsp;of&nbsp;the&nbsp;Mahatma&nbsp;Gandhi&nbsp;Kashi&nbsp;Vidyapeeth University&nbsp;(hereinafter&nbsp;referred&nbsp;to&nbsp;as&nbsp;‘the&nbsp;University’),&nbsp;rejecting&nbsp;his request&nbsp;to&nbsp;be&nbsp;appointed&nbsp;as&nbsp;Lecturer&nbsp;(Karm&nbsp;Kand),&nbsp;the&nbsp;appellant&nbsp;is before&nbsp;this&nbsp;Court.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13. The parameters to be applied to a case where an incumbent to a post&nbsp; &nbsp;does&nbsp; &nbsp;not&nbsp; &nbsp;fulfil&nbsp; &nbsp;the&nbsp; &nbsp;qualifications&nbsp; &nbsp;prescribed&nbsp; &nbsp;for&nbsp; &nbsp;a&nbsp; &nbsp;post,&nbsp; &nbsp;are different from the parameters to be applied to a case where no specific qualifications are prescribed for a particular post. The question as to what&nbsp; &nbsp;constitutes&nbsp; “relevant&nbsp; &nbsp;subject”&nbsp; should&nbsp; &nbsp;have&nbsp; &nbsp;been&nbsp; &nbsp;left&nbsp; &nbsp;to&nbsp; &nbsp;the experts, before&nbsp; the&nbsp; advertisement&nbsp; &nbsp;was&nbsp; issued,&nbsp; especially&nbsp; when&nbsp; the statutes did not prescribe any specific qualifications. This did not happen in this case. In fact the question whether subject experts were available at all in ‘Karm Kand’, itself became a matter of controversy. The entire controversy appears to have arisen as a result of the tug of war in the year 2006 between the then Chancellor and the then Vice Chancellor,&nbsp; &nbsp;making&nbsp; &nbsp;the&nbsp; &nbsp;appellant&nbsp; &nbsp;a&nbsp; &nbsp;victim&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;line&nbsp; &nbsp;of&nbsp; &nbsp;fire. Unfortunately, the High Court omitted to take note of all this.</b></font><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">14. The &nbsp; expression &nbsp; “equivalent &nbsp; qualifications” &nbsp; has &nbsp; a &nbsp; different connotation &nbsp; than &nbsp; the &nbsp; expression &nbsp; “relevant &nbsp; subject”. In &nbsp;Punjab University &nbsp;vs.&nbsp; Narinder &nbsp; Kumar &nbsp; and &nbsp; Others1 , &nbsp; this &nbsp; Court &nbsp; was concerned&nbsp;with&nbsp;the&nbsp;interpretation&nbsp;of&nbsp;the&nbsp;expression&nbsp;“relevant&nbsp;subject”. But&nbsp;in&nbsp;that&nbsp;case&nbsp;the&nbsp;advertisement&nbsp;itself&nbsp;prescribed&nbsp;“the &nbsp;essential&nbsp;qualifications” under one head and “desirable specialisation” under another head.&nbsp; Therefore, this Court found that though the words “relevant subject” did not throw any light on the question as to what are the relevant subjects for the post of a Lecturer in any specified subject, the column dealing with “desirable qualifications” threw light upon what was relevant.&nbsp; Therefore, cases in which a clue is available in the advertisement itself may stand on a different footing than cases where there is no such clue.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">15. In&nbsp; Ganapath&nbsp; &nbsp;Singh&nbsp; &nbsp;Gangaram&nbsp; &nbsp;Singh&nbsp; &nbsp;Rajput&nbsp; vs.&nbsp; Gulbarga University2 , this Court was concerned with a case where applications were invited for appointment to the post of Lecturer in MCA, from candidates holding a post graduate degree in the “relevant subject”. As a matter of fact, this Court found that candidates with Masters’ degree in Computer Applications were available, but a candidate with Masters’ degree in Mathematics was selected.&nbsp; This Court found fault with&nbsp; &nbsp;the&nbsp; &nbsp;decision&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Board&nbsp; &nbsp;of&nbsp; &nbsp;Appointment&nbsp; &nbsp;in&nbsp; &nbsp;selecting&nbsp; &nbsp;the candidate&nbsp; &nbsp;with&nbsp; &nbsp;a&nbsp; &nbsp;Master’s&nbsp; &nbsp;degree&nbsp; &nbsp;in&nbsp; &nbsp;Mathematics&nbsp; &nbsp;with&nbsp; &nbsp;a&nbsp; &nbsp;flawed reasoning that Mathematics is one of the subjects taught in MCA..&nbsp;</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>19. Under Section 25(1)(c) of the U.P. University Act, the Academic Council is empowered to advise the Executive Council with regard to the&nbsp; &nbsp;qualifications&nbsp; &nbsp;required&nbsp; &nbsp;to&nbsp; &nbsp;be&nbsp; &nbsp;possessed&nbsp; &nbsp;by&nbsp; &nbsp;persons&nbsp; &nbsp;imparting instructions on particular subjects.&nbsp; &nbsp;Therefore, the minutes of the meetings of the Academic Council dated 22.08.2013 has clinched the issue in favour of the appellant.&nbsp; Hence it is time for the University to put an end to this ‘Yuddh Kand’ and allow the appellant to move from ‘Karm Kand’ to ‘Karm Phal Kand’.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">20. Therefore, the appeal is allowed, the impugned order of the High Court is set aside and the writ petition filed by the appellant before the High Court is allowed, as prayed for. In view of the fact&nbsp; (i)&nbsp; that the appellant has been teaching the very same subject for the past nearly 16 years; and (ii) that the original Selection Committee which found him&nbsp; &nbsp;eligible&nbsp; &nbsp;for&nbsp; &nbsp;appointment,&nbsp; &nbsp;comprised&nbsp; &nbsp;of&nbsp; &nbsp;Professors&nbsp; &nbsp;from&nbsp; &nbsp;the Department of Sanskrit of which the diploma course in ‘Karm Kand’&nbsp;was a part, a direction is issued to the 5th&nbsp; respondent­University to regularise the services of the appellant.&nbsp; There shall be no order as to costs.</span></span></p>', 'e5d369bcda6260de97ab99bc6db0d57d.jpg', '63fb8c8497fb154d2c123f92e945f340.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-24', 1, '', '', '2022-03-24 23:00:23', '2022-03-24 23:31:33'),
(1476, 'pcU8IxGIzZwy4VkQ563aePCHn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Persons appointed on a fixed term and on a fixed salary in a temporary unit which was created for a particular project, can NOT seek regularisation of their services. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State of Gujarat and Others Vs R.J Pathan and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1951 of 2022 decided on 24 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R Shah and B.V Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order dated 18.02.2021 passed by the High Court of Gujarat at\r\nAhmedabad in Letters Patent Appeal (for short, ‘LPA’) No. 2082/2011, by\r\nwhich the Division Bench of the High Court has allowed the said LPA\r\nand directed the State to consider the cases of the respondents for\r\nregularisation sympathetically and if necessary, by creating\r\nsupernumerary posts, the State has preferred the present appeal</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts leading to the present appeal in a nut-shell are as under:\r\nThat the respondents herein were appointed on contractual basis\r\nfor a period of eleven months on a fixed salary and on a particular\r\nproject, namely, “Post-Earthquake Redevelopment Programme” of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Government of Gujarat. That the respondents herein were initially\r\nappointed for a period of eleven months in the year 2004 to the post of\r\ndrivers. On closure of the project in which the respondents were\r\nappointed, instead of terminating the services of the respondents herein,\r\nthe State Government took a decision to place them in the services of\r\nIndian Red Cross Society. Instead of joining the duties in the Indian Red\r\nCross Society, the respondents approached the High Court by filing Writ\r\nPetition No. 17328/2011 for regularisation of their services and\r\nabsorption in Government service. The original writ petitioners also\r\nchallenged their placement with the Indian Red Cross Society.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.3 By the impugned judgment and order, the Division Bench of the\r\nHigh Court has directed the State/Department to consider the cases of\r\nthe respondents herein for absorption and regularisation sympathetically\r\nand if necessary, by creating supernumerary posts, solely on the ground\r\nthat the respondents herein – original writ petitions by now have worked\r\nfor seventeen years.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4.1 Learned counsel appearing on behalf of the respondents has\r\nheavily relied upon on the decision of this Court in the case of State of\r\nKarnataka v. Umadevi (3), reported in (2006) 4 SCC 1, as well as, the\r\nsubsequent decision of this Court in the case of Narendra Kumar Tiwari\r\nv. State of Jharkhand, reported in (2018) 8 SCC 238 (para 7). Relying\r\nupon the above decisions, it is submitted that as the respondents have\r\nworked for more than seventeen years as drivers with the State\r\nGovernment, the Division Bench of the High Court has rightly directed\r\nthe State to consider their cases for absorption/regularisation\r\nsympathetically and if required, by creating supernumerary posts</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. The order passed by the learned Single Judge dismissing the writ petition was in the year 2011. The order passed by the learned Single Judge was challenged by the respondents by way of LPA. In the year 2011, the Division Bench granted the interim relief and directed to maintain status quo and pursuant to the said interim order, the respondents were continued in service with the Government. In the year 2021, when the said LPA was taken up for further hearing, it was submitted on behalf of the respondents that as by now the respondents have worked for seventeen years, the State may be directed to absorb them in the Government and their services may be regularised. By observing that as the respondents have worked for a long time, i.e., for seventeen years, the Division Bench has directed the State to consider the cases of the respondents for absorption/regularisation and if required, by creating supernumerary posts. However, while issuing such a direction, the High Court has not at all considered the fact that the respondents were continued in service pursuant to the interim order passed by the High Court. The Division Bench has also not appreciated the fact and/or considered the fact that the respondents were initially appointed for a period of eleven months and on a fixed salary and that too, in a temporary unit – ”Project Implementation Unit”, which was created only for the purpose of rehabilitation pursuant to the earthquake for “Post-Earthquake Redevelopment Programme”. Therefore, the unit in which the respondents were appointed was itself a temporary unit and not a regular establishment. The posts on which the respondents were appointed and working were not the sanctioned posts in any regular establishment of the Government. Therefore, when the respondents were appointed on a fixed term and on a fixed salary in a temporary unit which was created for a particular project, no such direction could have been issued by the Division Bench of the High Court to absorb them in Government service and to regularise their services. The High Court has observed that even while absorbing and/or regularising the services of the respondents, the State Government may create supernumerary posts. Such a direction to create supernumerary posts is unsustainable. Such a direction is wholly without jurisdiction. No such direction can be issued by the High Court for absorption/regularisation of the employees who were appointed in a temporary unit which was created for a particular project and that too, by creating supernumerary posts.</b></font><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. From the impugned judgment and order passed by the Division\r\nBench of the High Court, it appears that what has weighed with the High\r\nCourt was that the respondents were continued in service for a long time,\r\ni.e., seventeen years. However, the High Court has not considered that\r\nout of seventeen years, the respondents continued in service for ten\r\nyears pursuant to the interim order passed by the High Court. Therefore,\r\neven considering the decision of this Court in the case of Umadevi\r\n(supra), the period for which the employees have continued in service\r\npursuant to the interim order is to be excluded and not to be counted.\r\nThe High Court has totally missed the aforesaid aspect.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Now, so far as the reliance placed upon the decision of this Court\r\nin the case of Umadevi (supra) and the subsequent decision of this Court\r\nin the case of Narendra Kumar Tiwari (supra), relied upon by the learned\r\ncounsel appearing on behalf of the respondents is concerned, none of\r\nthe aforesaid decisions shall be applicable to the facts of the case on\r\nhand. The purpose and intent of the decision in Umadevi (supra) was,\r\n(1) to prevent irregular or illegal appointments in the future, and (2) to\r\nconfer a benefit on those who had been irregularly appointed in the past\r\nand who have continued for a very long time. The decision of Umadevi\r\n(supra) may be applicable in a case where the appointments are irregular on the sanctioned posts in regular establishment. The same does not\r\napply to temporary appointments made in a project/programme</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8.1 Even in the case of Narendra Kumar Tiwari (supra) also, it was a\r\ncase of irregularly appointed employees. Even otherwise, in view the\r\nfacts and circumstances of Narendra Kumar Tiwari (supra), the said\r\ndecision shall not be applicable to the facts of the case on hand. The\r\ncase before this Court was with respect to the employees working with\r\nthe State of Jharkhand which was created only on 15.11.2000 and\r\ntherefore it was contended on behalf of the irregularly appointed\r\nemployees that no one could have completed ten years of service with\r\nthe State of Jharkhand on the cut-off date of 10.04.2006, which was the\r\ncut-off date fixed under the relevant rules of the State of Jharkhand. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Even otherwise, it is to be noted that though not required, the\r\nState, instead of putting an end to the services of the respondents,\r\ngraciously placed the respondents in the Indian Red Cross Society. No\r\nduty was cast upon the State to transfer them to another establishment\r\nin a case where it is found that the employees are appointed in a\r\ntemporary unit and on a temporary contractual basis and on a fixed term\r\nsalary and on closure of the temporary unit, their services are not\r\nrequired. However, the State Government was gracious enough to place  the respondents in the Indian Red Cross Society, which the respondents\r\ndid not accept. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. From the impugned order passed by the Division Bench of the High\r\nCourt it appears that the High Court has observed hereinabove that in\r\nthe peculiar facts and circumstances of the case, it is directed that the\r\norder of absorption and regularisation and if necessary, by creating\r\nsupernumerary posts, will not be treated as a precedent in other cases.\r\nEven such a direction could not have been passed by the Division\r\nBench of the High Court as there were no peculiar facts and\r\ncircumstances which warranted the above observation. No such order of\r\nabsorption and/or regularisation even if required for creating\r\nsupernumerary posts and not to treat the same as precedent could have\r\nbeen passed by the High Court in exercise of powers under Article 226 of\r\nthe Constitution of India.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. In view of the above discussion and for the reasons stated above,\r\nthe impugned judgment and order passed by the Division Bench of the\r\nHigh Court is unsustainable and the same deserves to be quashed and\r\nset aside and is accordingly quashed and set aside. Order dated\r\n25.11.2011 passed by the learned Single Judge of the High Court in Writ\r\nPetition No. 17328/2011 dismissing the writ petition filed by the\r\nrespondents herein is hereby restored.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. The present appeal is accordingly allowed. However, there shall\r\nbe no order as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a4012c9afe46e38eeabf7e5b445ac22e.jpeg', '2f69cee4326c2b6abca2a80904bd156b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-25', 1, '', '', '2022-03-24 23:30:16', '2022-03-25 18:57:44'),
(1478, 'DnDo3f5k5rc7rTQ5b8F3PADwl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'There is no need to prove certified copies of Court Judgments produced before the Court by leading evidence. Rajasthan High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nand Kishore and another Vs Saleem Khan.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>S.B Civil Second Appeal 33 of 2021 decided on 15 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sudesh Bansal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This second appeal arises against judgment and decree\r\ndated 27.09.2017 passed by Additional Senior Civil Judge No.7,\r\nKota in suit No.25/2015, affirmed in first appeal vide judgment\r\ndated 11.02.2021 passed by the District Judge, Kota in appeal\r\nNo.118/2017 whereby civil suit for possession and permanent\r\ninjunction has been decreed against appellants-defendants.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The suit property is House No.170, ward No.30, Jogipada,\r\nShripura, Kota over which appellants are having possession.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Appellants-defendants have filed an application (IA\r\nNo.1/2022) under Order 41 Rule 27 CPC to place on record copy\r\nof judgment dated 04.09.2006, passed by Civil Judge (Junior <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Division), South Kota in Civil Suit No.09/2006 and copy of order\r\ndated 23.07.2012 passed by Additional District Judge No.4, Kota\r\nin Civil Misc. Appeal No.83/2008, affirming the judgment dated\r\n04.09.2006.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Counsel for defendants submits that in relation to the suit\r\nproperty, appellant No. 2 Ram Janki Bai with her sister Pushpa Bai\r\nfile a Civil Suit for permanent injunction against their father\r\nnamely Devkishan, claiming inter alia that suit property is their\r\nancestral property and defendant be restrained not to dispossess\r\nplaintiffs. The suit was decreed vide judgment dated 04.09.2006\r\nin the manner that the defendant would not dispossess the\r\nplaintiffs without following the process of partition and due course\r\nof law. During pendency of said suit, Devkishan sold the said\r\nproperty to the present respondent-plaintiff through sale deed\r\ndated 23.08.2006. Later on, Devkishan filed an appeal to set aside\r\nthe judgment dated 04.09.2006, which was dismissed vide order\r\ndated 23.07.2012 and the judgment and decree dated 04.09.2006\r\nhas been affirmed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Learned counsel for appellants submits that copy of\r\njudgment dated 04.09.2006 as affirmed by appellate court is\r\nmaterial and relevant evidence to the issue involved in the present\r\nsecond appeal. Respondent-plaintiff filed the civil suit for\r\npossession against appellants alleging them to be trespasser in\r\nthe suit property, whereas in the judgment dated 04.09.2006,\r\ntheir possession has been protected treating them as co-owner.\r\nThe respondent derives his right, title and interest in the suit\r\nproperty from Sh. Devkishan, plaintiff, in the plaint suit, father of\r\nappellant, against whom the judgment dated 04.09.2006 was\r\npassed and thus the same applies to the respondent-plaintiff as <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">well. Learned counsel for appellants submits that although in\r\nwritten statement, reference about the suit for injunction filed by\r\nappellants was given, but copies of judgment could not be\r\nproduced on record despite due diligence. He submits that both\r\ndocuments are certified copies of judgment passed by Judicial\r\nCourts, which are not required to be proved, and the same are\r\nrelevant to the issue involved herein and would be helpful to\r\ndecide the present appeal. Therefore, the copies of both\r\njudgments be taken on record.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Heard learned counsel for both the parties. In case of Wadi\r\nVs. Amilal and Ors. reported in [(2015) 1 SCC 677], the\r\nHon’ble Supreme Court has propounded that if any additional\r\ndocuments are relevant and helpful to adjudicate an issue, the\r\nsame can be taken on record. In the opinion of this court, copies\r\nof judgment dated 04.09.2006 and order dated 23.07.2012, have\r\nmaterial bearing on issues involved in the present appeal. No\r\nadditional evidence is required to be recorded to prove the\r\nadditional documents, as the same are certified copies of the\r\njudgments passed by Judicial Courts. Thus, in the interest of\r\njustice, the application under Order 41 Rule 27 CPC is allowed.\r\nCertified copies of judgment dated 04.09.2006 and order dated\r\n23.07.2012 are taken on record. The respondent would have right\r\nto produce rebuttal evidence, if any, to such additional documents.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">7. Appellants have also filed another application (I.A.\r\nNo.02/2022), seeking to add certain additional facts and grounds\r\nin the memorandum of second appeal. The appeal has not been\r\nadmitted. The facts and grounds mentioned in the memorandum\r\nof appeal do not amount to improvement of basic pleadings of\r\nparties and even can be argued orally, therefore, if additional facts </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and grounds as proposed by the appellants are allowed to be\r\namended in the memorandum of second appeal, no prejudice\r\nwould cause to the respondent, as he will have full opportunity to\r\nrefute additional facts and grounds also while opposing other\r\ngrounds of second appeal to oppose the admission of second\r\nappeal. In that view of manner, the application seeking\r\namendment in memo of appeal, is allowed. Appellants may file\r\namendment memo of appeal within a period of two weeks.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n8. Since this court has allowed the application under Order 41\r\nRule 27 CPC giving liberty to respondent to file\r\ndocuments/evidence in rebuttal and has also allowed to file\r\namendment memo of appeal, therefore, appeal is required to be\r\nheard afresh for admission, after filing amended memo of second\r\nappeal and considering the additional documents as well as\r\ndocuments in rebuttal, if any.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>9. List the appeal for admission after six weeks.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>10. Meanwhile, execution of impugned decree for possession\r\ndated 11.02.2021 shall remain stayed and both parties would\r\nmaintain status quo as to alienation and possession in relation to\r\nsuit property.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5cf01a00b27e192f2c59c50c5be5fc08.png', 'c364fb158b1238d96acf2b4ea654ea19.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-25', 1, '', '', '2022-03-25 18:12:51', '2022-03-25 11:59:44');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1477, '0oZ9b7LSP1PrFJCaIGjOaLEkK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'There can be no criminal liability against landlord if the tenanted premises is used for immoral trafficking without his knowledge. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Prabhuraj Girimallaiah Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 415 of 2022 decided on 8 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petitioner is before this Court calling in question the proceedings in C.C.No.4319/2020 registered for the offence punishable under Section 3 of the Immoral Traffic (Prevention) Act, 1956 (‘Act’ for short). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Heard Sri.Harish.N.R., learned counsel appearing for petitioner and Sri.B.J.Rohith, learned High Court Government Pleader appearing for respondent. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows: The petitioner is the owner of residential premises bearing No.16, Shivagiri Nilaya, Nagarabhavi, 6th cross, Coconut Garden, Bengaluru. Petitioner lets out the premises to accused No.1, pursuant to a rent agreement entered into between the parties on 11.12.2019. A search is conducted by the police on 25.01.2020 on the premises where the tenant-accused No.1 was residing and finds that the accused No.1 was running a brothel. Pursuant to the said search, a crime is registered against the petitioner and others for offences punishable under Sections 3, 4, 5 and 6 of the Act and under Section 370 of the IPC. The petitioner being the owner of the premises was issued a notice on 29.01.2020 to which the petitioner replies on 31.1.2020, explaining the circumstances of him being not aware of what activities happening in the house which he has rented it out. The police, after investigation, have filed charge sheet in the matter against the petitioner as well for the offence punishable under Section 3 of the Act. It is at that juncture the petitioner knocks the doors of this Court in the subject writ petition. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Learned counsel for the petitioner submits that in terms of the said Act, the petitioner cannot be hauled into criminal proceedings, as he was owner of the premises and the activities happening in the premises which was rented by him to accused No.1 was not within his knowledge as he was staying far away  from such premises. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.  Learned High Court Government Pleader would submit that the petitioner being the owner is definitely to  be  brought into trial in terms of Section 3 of the Act and would  seek  to  justify the action of the police in filing the charge sheet even against the petitioner.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. The afore-narrated facts are not being in dispute are not reiterated. Search was conducted on the premises that the petitioner owned and rented out to accused No.1 on 25.01.2020 and case is registered for the offences punishable under Sections 3, 4, 5 and 6 of the said Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Section 3(2)(b) of the Act directs that the owner, lessor or landlord of any premises having knowledge of what is happening in the premises, would be brought within the ambit of the  offences punishable under Section 3 of the Act. Pursuant to the said search, a notice is issued to the petitioner on 29.01.2020 alleging the aforesaid offences against the petitioner, to which,  the petitioner gives his reply clearly narrating that he is  not  aware of what is happening in the premises that he had rented it out  and  stayed far away.The police also while filing the charge sheet indicates the same. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8.  In the light of Section 3(2)(b) of the Act and the police themselves acknowledging that petitioner was not aware as to what was happening in the premises, permitting further proceedings to continue against the petitioner would degenerate into harassment and become an abuse of the process of law. For the aforesaid reasons, the following:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i)      Criminal Petition is allowed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii)      The impugned proceedings in C.C.No.4319/2020 pending on the file of VIII Additional Chief Metropolitan Magistrate, Bengaluru is quashed qua the petitioner.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iii)      It is made clear that the observations made in the course of the order is only for the purpose of consideration of the case of petitioner under Section 482 of Cr.P.C. and the same shall not bind or influence the proceedings against any other accused pending before any other fora.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f56257484cc6b8587601f367428fadcd.jpeg', 'd4adf1e5b8e7ee9f0de99f5588a06640.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-25', 1, '', '', '2022-03-25 17:35:46', '2022-03-25 07:22:43'),
(1479, '0Ajsc1bT8sjRj9frzuw7eDxX1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Test.. S.157-AA ZALR Act-Restrictions, held absolute, transfer without previous approval hit by sub-sec (4) & rendered void u/s 166 with consequences u/s 167', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Dulari and Others Vs Board of Revenue U.P and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ-B 211 of 2022 decided on 8 March 2022.<o:p></o:p></b></span></p><p><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Justice Yogendra Kumar Srivastava.&nbsp; &nbsp; &nbsp; &nbsp;&nbsp;</b></span></p><p><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. The present petition has been filed by the petitioners\r\nseeking a direction to quash the order dated 16.12.2021 passed by\r\nthe Board of Revenue, U.P., Allahabad whereby the earlier order\r\ndated 28.03.2007 passed by the ADM (City)/ Addl. Collector, Agra\r\nin exercise of the powers under Section 167 of Uttar Pradesh\r\nZamindari Abolition And Land Reforms Act 19501\r\n has been\r\naffirmed.\r\n</b></span></p><p><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. Pleadings in the petition are to the effect that the land in\r\nquestion bearing Arazi No. 665/0.2540 Hec. of Khata No. 214\r\nsituate in Village-Digner, Tehsil-Sadar, District- Agra was\r\nrecorded in the name of one Prem Singh who is stated to have\r\nbecome a bhumidhar with transferable rights under Section 131-B\r\nof the ZA &amp; LR Act and subsequently, executed a registered sale\r\ndeed dated 01.10.2005 in favour of the petitioner no. 1. A report\r\ndated 02.12.2005 was submitted by the Naib Tehsildar (Kundal),\r\nAgra pointing out that the transfer made was in violation of\r\nSection 157-AA of the ZA &amp; LR Act as the same was without the\r\nrequired prior approval of the authority concerned and accordingly, a recommendation was made for proceedings to be\r\nundertaken as per Section 166-167 of the ZA &amp; LR Act. Upon the\r\naforesaid report Case No. 02 of 2005-06 (State vs. Ramdulari) was\r\ninstituted and a show cause notice dated 26.12.2005 was issued to\r\nthe petitioner no. 1 who submitted her objections dated\r\n26.04.2006. The case came to be decided in terms of an order\r\ndated 28.03.2007 wherein the Additional Collector upon\r\nconsidering the facts of the case held that no prior approval has\r\nbeen obtained before making of the transfer and the same being in\r\ncontravention of Section 157-AA of the ZA &amp; LR Act, he made a\r\nrecommendation for vesting of the land in the State Government\r\nas per the provisions of Section 167 of the ZA &amp; LR Act.</b></span></p><p><b>4. Aggrieved by the same the petitioner preferred a revision\r\nunder Section 333 of the ZA &amp; LR Act which has also been\r\ndismissed in terms of an order dated 16.12.2021 affirming the\r\nfindings and the order passed by the Additional Collector.\r\n</b></p><p><b>5. Learned counsel for the petitioner has sought to assail the\r\naforesaid order and contends that in the present case since the\r\ntransferor and the transferee both belong to the Scheduled Caste,\r\nthe restriction under Section 157-AA of the ZA &amp; LR Act was not\r\nattracted and no previous approval of the Assistant Collector was\r\nrequired prior to making of the transfer.</b></p><p><b>6. Submission is that there being no violation of the provisions\r\nof Section 157-AA of the ZA &amp; LR Act the consequences\r\nenshrined under Section 167 of the ZA &amp; LR Act would not\r\nfollow and for the said reason the orders are erroneous and are\r\nliable to be set aside.\r\n</b></p><p><b>7. Controverting the aforesaid submissions, learned Additional\r\nAdvocate General appearing for the State-respondents submits that\r\nSection 157-AA of the ZA &amp; LR Act provides for certain&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">restrictions on transfer by the members of Scheduled Castes\r\nbecoming bhumidhar under Section 131-B of the ZA &amp; LR Act.\r\nHe submits that as per the case pleaded in the petition, the\r\ntransferor is stated to have become a bhumidhar by virtue of\r\nprovisions contained under Section 131-B of the ZA &amp; LR Act. It\r\nis pointed out that Section 157-AA of the ZA &amp; LR Act contains\r\nan absolute bar on transfer being made by members of Scheduled\r\nCastes in favour of any person not belonging to a Scheduled\r\nCaste. It is further submitted that even in respect of transfer made\r\nby a member of Scheduled Caste to another member of the\r\nScheduled Caste there are certain conditions specified under the\r\nsection. Reference is made of sub-section (4) of Section 157-AA\r\nof the ZA &amp; LR Act which provides that no transfer can be made\r\nwithout previous approval of the Assistant Collector.&nbsp;</span></b></p><p><b>8. The question which thus arises in the present case is as to\r\nwhether in a case where the transferor and the transferee both are\r\nmembers of Scheduled Caste, would the restrictions contained\r\nunder Section 157-AA of the ZA &amp; LR Act, be attracted.</b></p><p><b>10. Section 131-B, as inserted by U.P. Zamindari Abolition and\r\nLand Reforms (Amendment) Act, 19952\r\n with effect from January\r\n14, 1995, was brought in with the main object to confer\r\ntransferable rights on persons who were bhumidhars with nontransferable rights immediately before commencement of the\r\naforementioned Amendment Act, 1995 and had been such\r\nbhumidhar for a period of ten years or more.</b></p><p><b>11. Section 157-A provides for certain restrictions on transfer of\r\nland by members of scheduled castes. It provides that a\r\nbhumidhar or asami belonging to a scheduled caste shall have no\r\nright to transfer any land by sale, gift, mortgage or lease to a\r\nperson who does not belong to such a caste except with the\r\nprevious approval of the Collector. The restrictions imposed on the\r\nbhumidhar or asami belonging to a scheduled caste shall be\r\nwithout prejudice to the restrictions contained in Sections 153 to\r\n157 of the Act.</b></p><p><b>16. The language of sub-section (1) of Section 157-AA is such\r\nthat even in case of a member of a scheduled caste acquiring\r\ntransferable rights of a bhumidhar under Section 131-B who is\r\ndesirous to transfer such land to another person belonging to the\r\nscheduled caste by way of sale, gift, mortgage or lease the right to\r\ntransfer is not absolute and the transfer is permissible only in\r\naccordance with the preferences specified therein.</b></p><p><b>17. Sub-section (4) provides for a restraint whereunder no\r\ntransfer under Section 157-AA is permissible without the previous\r\napproval of the Assistant Collector concerned. The language of\r\nsub-section (4) is expressed in wide terms and it covers all\r\ntransfers which are contemplated under Section 157-AA,\r\nincluding a transfer which is to be made by a scheduled caste in&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">favour of a scheduled caste also.\r\n</span></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>18. The restrictions provided for under Section 157-AA were\r\nmade subject to a further condition with the insertion of subsection (5), in Section 157-AA of the ZA &amp; LR Act in terms of the\r\nUttar Pradesh Zamindari Abolition and Land Reforms\r\n(Amendment) Act, 2002 (U.P. Act No.11 of 2002) with effect from\r\nJune 21, 2002.</b></span></p><p><b>19. In terms of Section 166 of ZA &amp; LR Act, transfers made in\r\ncontravention of the Act are to be held to be void. The\r\nconsequences of such void transfers are provided for under\r\nSection 167</b></p><p><b>20. This Court may take notice of the fact that the ZA &amp; LR Act\r\nwas enacted to provide for abolition of the zamindari system\r\nwhich involved intermediaries between the tiller of the soil and the\r\nState and for acquisition of their rights, title and interests and to\r\nreform the law relating to land tenure. The enforcement of the ZA\r\n&amp; LR Act was with a view to simplify land tenure and bring about\r\nother consequent reforms to fulfill the needs of an egalitarian\r\nsociety. The abolition of the system of intermediaries between the\r\nState and the cultivators and the simplification of land tenure was\r\naimed at paving way for distribution of land to the weaker sections\r\nof society according to the mandate of the Constitution of India</b></p><p><b>21. In a primarily agrarian economy where land continues to be\r\nthe pivotal to both income and employment around which socioeconomic privileges and deprivations revolve land reforms are\r\nseen as one of the principal instruments for creation of an\r\negalitarian rural society in tune with the socialistic spirit, as\r\nprovided in the Preamble and under Part IV of the Constitution. It\r\nhas also been included in the Ninth Schedule so as to ensure\r\nspeedy and unhindered implementation of various legislative\r\nmeasures.</b></p><p><b>22. The restrictions provided for the transfer of land by\r\nscheduled castes under Section 157-AA have been introduced in\r\norder to address the difficulties faced by members of scheduled\r\ncastes and to protect their rights with regard to the use and control\r\nof land through land reforms by taking appropriate legislative\r\nmeasures.\r\n</b></p><p><b>23. The restrictions provided under Section 157-AA are\r\nfounded on a reasonable basis inasmuch as these restrictions are in\r\nrespect of a person belonging to a scheduled caste who has&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">become a bhumidhar with transferable rights in terms of the\r\nprovisions contained under Section 131-B. It is for the purpose of\r\nprotecting the rights of members of the scheduled castes that the\r\ntransfer under Section 157-AA is permissible only to a person\r\nbelonging to a scheduled caste and that too in the order of\r\npreference as prescribed under sub-section (1) thereof whereunder\r\nthe said transfer is to be in an order of preference being made\r\nfirstly to a landless agricultural labourer, thereafter to a marginal\r\nfarmer, a small farmer and only subsequent thereto to others. The\r\naforementioned preferential order of transfer is further subject to\r\nthe conditions under sub-section (2).\r\n</span></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>24. Sub-section (4) which is couched in a mandatory form\r\ncontains an injunction against any transfer without the previous\r\napproval of the Assistant Collector. The language of sub-section\r\n(4) is in wide terms and it encompasses all transfers under Section\r\n157-AA including a transfer by a member of scheduled caste in\r\nfavour of another member of scheduled caste also. Sub-section (4)\r\nrefers to “transfer under this section”, and therefore, it clearly\r\nembraces in itself all transfers which are contemplated in terms of\r\nSection 157-AA.\r\n</b></span></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">25. The issue </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as to whether a transfer made by a leaseholder\r\nwho belongs to a scheduled caste in favour of a person who also\r\nbelongs to a scheduled caste would require the permission of the\r\nAssistant Collector was taken up in the case of Man Singh Vs.\r\nCommissioner, Bareilly Mandal &amp; Ors.&nbsp;</span></b></p><p><b>26. The purpose and object of the provision being to protect and\r\npromote the rights of the scheduled castes with regard to the\r\n11\r\ncontrol and use of land by bringing about land reforms through\r\nlegislative measures, the provisions under Section 157-AA have to\r\nbe read so as to subserve the intent and purpose of the enactment.\r\n</b></p><p><b>27. It is beyond question the duty of courts, in construing\r\nstatutes to give effect to the intent of the law making power and to\r\nseek for that intent in every way. The object and interpretation of\r\nconstruction of statutes is to ascertain the meaning of the\r\nlegislature and to ensure that the provisions are interpreted so as to\r\nsubserve that intent. There is a general presumption that an\r\nenactment has to be given a purposive interpretation with a\r\nconstruction that best gives effect to the purpose of the enactment.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p><b>31. The ZA &amp; LR Act having been enacted with the objective of\r\nbringing about reforms in the law relating to land tenure, and the\r\nprovisions contained under Section 157-AA having been inserted\r\nwith a view to ensure protection of the rights of the scheduled\r\ncastes in consonance with creation of an egalitarian rural society\r\nwhich would be in tune with the socialistic spirit of the\r\nConstitution the provisions contained therein have to be\r\ninterpreted in a beneficent way so as to subserve the object of the\r\nenactment rather than to negate it.</b></p><p><b>39. The restrictions contained under Section 157-AA and the\r\nrequirement of the permission of the Assistant Collector in a case\r\nwhere transfer is sought to be made by a person belonging to\r\nScheduled Caste having become a bhumidhar with transferable\r\nrights under Section 131-B, in favour of a person who also\r\nbelongs to a Scheduled Caste, having been held to be mandatory\r\nany transfer made in contravention thereof shall by virtue of the\r\nprovisions contained under Section 166 be rendered void and the\r\nconsequences of such a void transfer, as provided under Section\r\n167, would ensue.</b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>40. In the case at hand, the land in question having been\r\ntransferred by a person who was a member of Scheduled Caste\r\nand had become a bhumidhar with transferable rights under\r\nSection 131-B, to the petitioner no.1 herein, also a person\r\nbelonging to Scheduled Caste, the restrictions contained under\r\nSection 157-AA would be fully attracted as also the provisions\r\ncontained under sub-section (4) thereof whereunder no transfer\r\nunder the section is permissible except with the previous approval\r\nof the Assistant Collector concerned.</b></span></p><p><b>41. Contention of the learned counsel for the petitioner is that\r\nthe transferor and the transferee both being members of Scheduled\r\nCaste, the previous approval of the Assistant Collector was not\r\nrequired for the purpose, is thus without basis and cannot be\r\naccepted.\r\n</b></p><p><b>42. The rationale behind requiring the previous approval of the\r\nAssistant Collector for any transfer under Section 157-AA is not\r\ndifficult to decipher since as per the terms of the scheme of the\r\nprovision, even a transfer by a bhumidhar belonging to a\r\nscheduled caste to a person also belonging to a scheduled caste is\r\nto be in accord with the order of preference under sub-section (1). </b></p><p><b>43. It therefore follows that a member of a scheduled caste who\r\nhas obtained the status of a bhumidhar with transferable rights\r\nunder Section 131-B also does not have a free choice to transfer\r\nthe land to any member of the scheduled caste. The transfer which\r\nis permissible is to be as per the preferences prescribed. The order\r\nof preference under sub-section (1) and sub-section (2) are clearly\r\nto subserve the purpose of the legislative enactment which is for\r\nfurtherance of the objective of land reforms and to protect the\r\nvulnerable section of the society from injustice and exploitation.\r\n</b></p><p><b>44. The prior approval of the Assistant Collector as required\r\nunder sub-section (4) is thus contemplated so as to ensure that the\r\npermission which is sought is in accord with the scheme of the\r\nprovision under the Section 157-AA and as per the order of\r\npreference provided under sub-section(1).\r\n</b></p><p><b>45. The transfer of the land in question having admittedly being\r\nmade without the previous approval of the Assistant Collector\r\nconcerned, the same would be hit by provision contained under\r\nsub-section (4) of Section 157-AA and such transfer being in\r\ncontravention of the section, the same was rendered void by virtue\r\nof the mandate under Section 166 and the necessary consequences under Section 167 were liable to follow.\r\n</b></p><p><b>46. The recommendation made as per the order dated\r\n28.03.2007 passed by the Additional Collection for vesting of the\r\nland in the State Government, is in accord with the provisions\r\ncontained under sub-clause (a) of sub-section (1) of Section 167,\r\nand there is no infirmity in the said order. The subsequent order\r\ndated 16.12.2021 passed by the Board of Revenue, U.P., Allahabad\r\nrejecting the revision of the petitioners and affirming the order of\r\nthe Additional Collector also cannot be faulted with for the same\r\nreason.</b></p><p><b>47. The writ petition lacks merit and is accordingly dismissed.</b><br></p>', 'bd043d4cc7de1e0f36e0dbd992abe375.jpeg', '4b0b74c102669186a5ecb4a7d650a9ac.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-25', 0, '', '', '2022-03-25 18:46:35', '2022-03-25 08:16:41'),
(1480, '9YrYkE8I6VV0aleDKfQHlOfjv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Writ Petition against State or its instrumentality seeking relief of contractual payment, held, entertainable where amount is admitted and undisputed. Calcutta High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kanika Construction Vs State of U.P and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ-C 27869 of 2021 decided on 6 January 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Manoj Kumar Gupta and Justice Yogendra Kumar Srivastava.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The present petition has been filed seeking a direction to the\r\nRespondent no.2 for payment of an amount which is stated to be\r\ndue and admitted.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Pleadings in the petition indicate that in pursuance of\r\ncertain advertisement inviting tenders for running community\r\nkitchen at Baijal Bhawan, Meerut and Olivia Hotel, Meerut, the\r\npetitioner company submitted its offer. It was duly accepted and in\r\npursuance thereof, it provided the service of community kitchen at\r\nabove two places during COVID period. By letter dated 4.6.2020,\r\nRespondent no.4 directed the petitioner to close the community\r\nkitchen w.e.f. 6.6.2020. A three member Committee had duly\r\nverified the quality and quantity of food packets supplied by the\r\npetitioner in pursuance of the contract. The petitioner has been\r\npaid certain sum under the contract, but the entire amount has not\r\nbeen paid on account of paucity of funds.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The petitioner has placed on record an order dated 5.3.2021\r\nissued by A.D.M. Finance & Revenue, Meerut in which it is\r\nrecorded that on basis of recommendation of the Committee and\r\nthe approval granted by the District Magistrate, Meerut on\r\n4.3.2021, the amount of Rs. 3,68,81,217/- received from the\r\nGovernment shall be disbursed amongst various service providers <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">on pro-rata basis. The order itself records that the remaining\r\namount would be paid after release of more funds from the\r\nGovernment. A chart which is part of the said order reveals that in\r\nrespect of the petitioner, the remaining sum is Rs. 37,32,072/-.\r\nSince, the amount has not been paid to the petitioner despite\r\nrepeated reminders, the instant petition has been filed for a\r\nmandamus to Respondent no. 2 to pay the remaining amount\r\nforthwith.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. On 15.12.2021, the matter was again adjourned to enable\r\nthe competent authority to examine the petitioner’s grievance and\r\ntake necessary action.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Learned Standing Counsel is in receipt of instructions from\r\nthe State Respondents in which the same stand has been taken i.e.\r\nas soon as the funds are received from the State Government,\r\npayment shall be made.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The question whether a writ petition under Article 226 of\r\nthe Constitution of India is maintainable to enforce a contractual\r\nobligation against the State or its instrumentalities, by a aggrieved\r\nparty, is no longer res integra. The law with regard to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">maintainability of a writ petition in contractual matters is fairly\r\nwell settled. It has been consistently held that there is no absolute\r\nbar to the maintainability of a writ petition in such matters. The\r\ndiscretionary jurisdiction under Article 226 of the Constitution of\r\nIndia may, however, be refused in case of money claims arising\r\nout of purely contractual obligations where there are serious\r\ndisputed questions of fact with regard to the claims sought to be\r\nraised.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The legal position with regard to entertainability of a writ\r\npetition in contractual matters where monetary claims are sought\r\nto be raised has been considered in extenso in a recent decision of\r\nthis court in M/S Bio Tech Systems vs. State of U.P. and Ors.1\r\nand it was held that in a case where the contract entered into\r\nbetween the State and the person aggrieved is of a non-statutory\r\ncharacter and the relationship is governed purely in terms of a\r\ncontract between the parties, in such situations the contractual\r\nobligations are matters of private law and a writ would not lie to\r\nenforce a civil liability arising purely out of a contract, and the\r\nproper remedy in such cases would be to file a civil suit for\r\nclaiming damages, injunctions or specific performance or such\r\nappropriate reliefs in a civil court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. While stating the aforementioned broad proposition of law\r\nin M/S Bio Tech Systems (supra), it was also added that it cannot\r\nbe held in absolute terms that a writ petition is not maintainable in\r\nall contractual matters seeking enforcement of obligations on part\r\nof the State or its authorities. The limitation in exercising\r\npowers under Article 226 in contractual matters is essentially a\r\nself-imposed restriction. A case where the amount is admitted and\r\nthere is no disputed question of fact requiring adjudication of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">detailed evidence and interpretation of the terms of the contract,\r\nmay be an exception to the aforementioned general principle.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. In a given set of facts, where the State or its\r\ninstrumentalities are parties to a contract, they would be under an\r\nobligation in law to act fairly, justly and reasonably, which is the\r\nrequirement under Article 14 of the Constitution of India. In such\r\na situation where the instrumentalities of the State act unfairly,\r\nunjustifiably, unreasonably or arbitrarily in discharge of\r\ncontractual obligations, the same would be held to be violative of\r\nthe constitutional guarantee embedded in Article 14 and the\r\naggrieved party cannot be precluded from invoking the writ\r\njurisdiction under Article 226 of the Constitution of India nor the\r\ncourt would be denuded of its power of granting proper reliefs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. While considering the question with regard to\r\nmaintainability of a writ petition in such matters, it was held in\r\nABL International Ltd. And Another vs. Export Credit\r\nGuarantee Corporation of India Ltd. And Others2\r\nthat in\r\nappropriate cases, not only a writ petition against a State or\r\ninstrumentality of State arising out of contractual obligation would\r\nbe maintainable but the consequential relief of monetary claim\r\nwould also be entertainable.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. In the case at hand, it is evident that there is no dispute\r\nrelating to the amount due and payable to the petitioner. The\r\ninstructions received by the learned Standing Counsel clearly\r\nindicate that the balance amount has not been paid for the reason\r\nthat necessary funds have not been made available by the State\r\nGovernment so far.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. Once the petitioner had performed its contractual\r\nobligations under the work order and the amount due is admitted,\r\nwe find no justification on part of the respondents not to make <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">payment. Our attention has been invited towards order passed in\r\nWrit-C No. 21018 of 2021 (Saubhagya Industries Ltd. Vs. State of\r\nU.P. and 3 others), wherein identical controversy was raised and\r\nwhen this Court directed the concerned respondent therein to file\r\nhis personal affidavit disclosing the time frame within which\r\npayment of due amount would be made, the respondents made the\r\npayment and filed an affidavit to the said effect. It is pointed out\r\nthat the case of the petitioner is on a similar footing inasmuch as\r\napproval for making payment was granted in respect of petitioner\r\nas also M/s Saubhagya Industries Ltd. (supra) by the same order\r\ndated 5.3.2021 issued by A.D.M., Finance and Revenue, Meerut.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. We are of considered opinion that in the facts and\r\ncircumstances noted above, there is no justification in not making\r\npayment of the amount due and payable to the petitioner.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. Accordingly, a writ of mandamus is issued directing the\r\nrespondents to ensure that the amount due and payable to the\r\npetitioner is released in its favour within a period of four weeks\r\nfrom the date of receipt of a true attested copy of the instant order\r\nby the second respondent.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. The writ petition stands allowed accordingly. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5e8ed340b852e6b54a551637d8cbe736.jpeg', '038295af25ff98d967c45ebb277d6147.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-25', 1, '', '', '2022-03-25 19:38:11', '2022-03-25 11:03:55');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1805, 'AnZHVEO0Gc5k32NYBxY2Z9Cz2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Courts are not meant to vet tender conditions and rewrite the same based on their own understanding, unless the conditions are manifestly arbitrary or smack of mala fide. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S S H Khan and Co and other Vs Government of NCT of Delhi and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P (C) 9457 of 2022 decided on 10 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Manoj Kumar Ohri and Justice Poonam A. Bamba.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1. By way of the present petitions filed under Article 226 of the Constitution\r\nof India, the petitioners have sought quashing/stay of the Notice Inviting\r\nTenders (hereinafter, referred to as the „NITs?) </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to them for\r\noperation, management and maintenance of Jan Suvidha Complexes\r\n(hereinafter, referred to as the „JSCs?) for two years.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. The facts, as emanate from the pleadings, are that the petitioners-M/s S.H.\r\nKhan & Co.& Ors. in W.P.(C) 9454/2022 are Societies registered under the\r\nSocieties Registration Act, 1860 and the petitioner-ALERT DÉCOR in W.P.(C)\r\n9457/2022 is a Firm engaged in providing security and sanitisation services\r\nincluding in the NCT of Delhi.\r\nThe petitioners claim to have earlier been awarded various tenders/work <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">orders for Operation, Management and Maintenance of JSCs. The eligibility\r\ncriteria mentioned in the aforesaid NITs dated 26.05.2022 and 27.05.2022 are\r\non the same lines.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. Mr. Sanjeev Anand, learned Senior Counsel appearing for the petitioners\r\nin W.P.(C) 9454/2022, has contended that the eligibility and turnover criteria as\r\nenumerated in the aforesaid NITs dated 26.05.2022 and 27.05.2022 are\r\narbitrary, irrational and violative of Articles 12, 14, 19 and 21 of the\r\nConstitution of India. It is submitted that the respondent(s) has arbitrarily\r\ndecided to not permit consortium/joint venture of agencies to participate in the\r\ntenders, which has narrowed down the competition as well as resulted in\r\nelimination of small players like the petitioners to the benefit of the bigger\r\nplayers, resulting into monopoly upon a limited class of persons. It is further\r\nsubmitted that vide NITs dated 25.06.2018 and 15.02.2021 issued earlier for\r\nwork of similar nature, consortium(s) of not more than 3 and 5\r\npartners/agencies/NGOs respectively were allowed to participate.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Learned Senior Counsel has assailed the eligibility criteria requiring\r\nbidders’ average annual financial turnover of works completed in last 3\r\nconsecutive financial years to be atleast 50% of the estimated cost of work, on\r\nthe ground that the previous NIT dated 15.02.2021 required the average annual\r\nfinancial turnover of works completed in any 3 years during the last 5\r\nconsecutive financial years to be atleast 30% of estimated cost.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>He has also referred to the corrigendum dated 05.03.2021 issued in\r\nrelation to NIT dated 15.02.2021, whereby the eligibility criteria were amended. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">It is submitted that Clause 8 of the same mentioned that - “assessment of\r\nexperience in respect of numbers of WC seats maintained in the same\r\nproportion as in respect of turnover of work is permitted in the same proportion\r\nof turnover of the WC seats maintained, mentioned in the tender”. Learned\r\nSenior Counsel has contended that the eligibility in relation to financial criteria\r\nshould be based on the number of WC seats as provided in the earlier tender.\r\nLastly, it is submitted that estimated total cost of the tender ought to have been\r\ncomputed for 1 year and not for 2 years, as the same enhanced the turnover,\r\nsolvency and eligibility criteria.\r\n4. Learned Senior Counsel appearing for the petitioner in W.P.(C)\r\n9457/2022 has adopted the submissions made on behalf of the petitioners in\r\nW.P.(C) 9454/2022. Additionally, he has contended that the condition of annual\r\nfinancial turnover being 50% of the estimated cost is also in violation of Office\r\nMemorandum No.12-02-1-CTE-6 dated 17.12.2002 issued by the Central\r\nVigilance Commission, Govt. of India.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. In the present cases, the petitioners have invoked the writ jurisdiction of\r\nthis Court under Article 226 of the Constitution of India seeking review of the\r\nconditions of a tender floated by the DUSIB, wherein the financial eligibility\r\ncriteria are stated to have been linked to the estimated cost of the work. The\r\npetitioners’ grievance is that the eligibility criteria imposed by the tender, unlike\r\nprevious tenders issued by the DUSIB, have the effect of restraining\r\nconsortiums/joint venture of agencies from participating and increasing the\r\nestimated cost of work, thereby creating a monopoly of limited class of persons\r\nand ousting small players from competition.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Thus, the principles governing the exercise of judicial review in\r\ntender/contractual matters are well-settled. A perusal of the judicial dicta on the\r\nsubject would show that Courts in seisin of said matters are ordained to\r\ndetermine the following issues/questions:-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\ni) Whether the process adopted or decision made by the authority is mala\r\nfide or intended to favour someone;\r\nor\r\nWhether the process adopted or decision made is so arbitrary and\r\nirrational that the Court can say: <i>“the decision is such that no responsible\r\nauthority acting reasonably and in accordance with relevant law could have\r\nreached”;\r\n</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ii) Whether public interest is affected\r\nIf the answers are in the negative, there should be no interference under\r\nArticle 226 of the Constitution of India. Further, a constitutional Court in\r\ntender/contractual matters shall be concerned only with lawfulness of a\r\ndecision, and not its soundness [Refer: Jagdish Mandal (Supra), Maa Binda\r\nExpress Carrier (Supra) and Bharat Coking Coal Ltd. (Supra)].<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. Coming back to the facts of the present case, it is noted that initially,\r\nDUSIB had issued NIT dated 25.06.2018 for operation, management and\r\nmaintenance services of JSCs at specified locations, with estimated cost of\r\nRs.15,11,14,920/-. In the said tender, consortiums were allowed to participate,\r\nwith cap being set at a maximum of three partners. Thereafter, DUSIB came out\r\nwith NIT dated 13.02.2021 for like services of JSCs at specified locations, with\r\nestimated cost of Rs.3,11,82,216/-. Again, consortiums were allowed to\r\nparticipate, with the cap being set at a maximum of 5 partners. The petitioners\r\nwere awarded various tenders by DUSIB, albeit for reduced time period.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the year 2022, DUSIB issued the impugned NITs for services of JSCs,\r\nas mentioned above, at specified locations, with estimated costs of\r\nRs.68,32,21,584 and Rs.56,14,21,272/-. This time, consortiums/joint venture of\r\nagencies were not permitted to participate and the average annual financial\r\nturnover criteria was fixed at 50% of the estimated cost of work.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. The petitioners’ case is that as opposed to earlier tenders, DUSIB has\r\nimposed stricter eligibility conditions in the present tender, wherein–</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i)\r\nconsortiums/joint venture of agencies have been restrained from participating,</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) the turnover criteria have been increased from 30% to 50% of estimated cost\r\nof work,</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) the eligibility criteria have not been linked to number of WC seats,\r\nand (iv) the estimated cost has been calculated for 2 years, instead of 1 year.\r\nThus, the impugned NITs are liable to be quashed for imposing eligibility\r\ncriteria that are arbitrary, unreasonable and violative of inter-alia Article 14 of\r\nthe Constitution of India.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. On the other hand, the case of DUSIB is that –</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) changes have been\r\nmade in the pre-conditions and qualifications of the present tender based on\r\nexperience with contractors in earlier tenders to ensure that the proposed\r\ncontractor has requisite capacity and resources,</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) fixation of value of tender is\r\nwithin the realm of the executive and tender conditions are not open to judicial\r\nreview, unless the same are found to be perverse, actuated by mala fide and/or\r\nadverse to public interest, and</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) conditions of a tender, even if harsh, apply to\r\neveryone and cannot be assailed even if they cause prejudice to a party, much\r\nless to secure private interest.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. In view of the aforementioned judicial decisions, with which we\r\ncompletely concur, it is well-settled that Courts are not meant to vet tender\r\nconditions and rewrite the same based on their own understanding, unless the\r\nconditions are manifestly arbitrary or smack of mala fide. Before interfering\r\nwith the impugned NITs under Article 226 of the Constitution of India, two\r\nquestions are required to be determined: first, whether the action of DUSIB in\r\nimposing the impugned conditions was arbitrary or actuated by mala fide, and\r\nsecond, whether public interest is affected by said action?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. From the material placed on record and the submissions made on behalf\r\nof the parties, it is apparent that the work under the impugned tenders has been\r\nconsolidated under 2 NITs as opposed to24 NITs issued for earlier projects. The\r\nscope of the work has become bigger as well as specific; for instance, earlier,\r\nJSCs having 10 or more WCs were to be cleaned with mechanical means,\r\nhowever, the same are now proposed to be cleaned by use of equipment of\r\nspecific type and make. In the experience of the respondent(s), it would require\r\na bigger player with adequate financial capacity and resources to efficiently\r\nexecute the project. It has been claimed that it would also be more convenient\r\nfor the respondent(s) to deal with a single agency rather than a consortium of\r\nmultiple members.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. Notably, implicit in the petitioners’ challenge is an admission that they\r\ndo/will not meet the impugned criteria. There is no allegation in the present case\r\nthat the impugned conditions have been designed to favour a particular entity\r\nand/or to exclude the petitioners from the fray. In fact, it is an admitted position\r\nthat the petitioners have earlier been awarded tenders/work orders by DUSIB.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. The petitioners have placed reliance on Office Memorandum No.12-02-1-\r\nCTE-6 dated 17.12.2002 issued by the CVC to argue that impugned tender\r\nconditions are violative of Clause 5(A)(i)of the O.M. as they exceed the\r\ncondition of average annual financial turnover being „at least 30% of the\r\nestimated cost?. Suffice it to note, this challenge is without any substance since\r\nthe O.M. lays down only lays down criteria of 30% as a minimum threshold.\r\nEven otherwise, from clause 6 of the O.M., it is discernible that the conditions\r\nstipulated therein were intended to serve only as a guidance for fixing prequalification criteria.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. Based on the above, we are of the prima facie opinion that the respondent\r\nhas good reason for exclusion of consortiums/joint venture of agencies from\r\nparticipation and the impugned conditions in the NITs dated 26.05.2022 and\r\n27.05.2022 are neither arbitrary nor actuated by mala fide. Besides, in view of\r\nthe decisions cited hereinabove, it is the prerogative of the respondent(s) to\r\ndesign tender conditions as per the requirements.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Thus, the first criteria for interfering with the impugned NITs under writ\r\njurisdiction, i.e. existence of mala fide or arbitrariness on part of the\r\nrespondent(s), is decided against the petitioners.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. So far as the second criteria for interference with impugned NITs is\r\nconcerned, it is observed that the tenders in question are for operation,\r\nmanagement and maintenance of JSCs, i.e. common toilet facilities, in JJ\r\nclusters/slum bastis in Delhi. The project by its nature is for the welfare of the\r\npeople.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>As noted earlier, the scope of work has increased and the respondent(s)\r\nhave stated that it would be more efficient for the authorities to collaborate with\r\nsingle players/agencies instead of multiple members in a consortium/joint\r\nventure.\r\nNeedless to state, the petitioners cannot claim as a matter of right that\r\nthey should be allowed to participate in the tender process as a consortium/joint\r\nventure of agencies.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. Considering that the work under the NITs requires certain level of\r\nfinancial and other resources in the opinion of the DUSIB, which assessment\r\nbeing a policy decision is not to be interfered by this Court under writ\r\njurisdiction unless found adverse to public interest, and finding nothing on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">record to show that the impugned conditions are detrimental to public interest,\r\nthe second issue is also decided against the petitioners.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>27. For the reasons stated above, the petitions are dismissed. </b></span></p>', 'cce3e3e0d3012138f478aed876ce362a.jpeg', '57613f6164cf40a85a8d5a676f4017a9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-17', 1, '', '', '2022-06-13 17:09:20', '2022-06-17 08:25:13'),
(1482, 'ZupOr5BA4GKi17qwwNy2E2zm6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act, 1996. While deciding application under Section 8, Court cannot adjudicate on the bifurcability of the causes of action. Calcutta High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Lindsay International Private Limited and Others vs Laxmi Niwas Mittal and Others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>C.S 2 of 2017 decided on 21 January 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Moushumi Bhattacharya.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>1. The issue in these applications for reference of the disputes to\r\narbitration, is whether the dictum of the Supreme Court in Sukanya\r\nHoldings (P) Ltd. v. Jayesh H. Pandya; (2003) 5 SCC 531 – non-permissibility\r\nof bifurcation of subject-matter or causes of action in the suit – should be\r\nconsidered by a court in an application under section 8 of The Arbitration\r\nand Conciliation Act, 1996, as amended in 2016.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. The applicants, IFGL Refractories Limited, have filed two applications\r\nfor reference of claims, disputes and differences made by the first plaintiff\r\nagainst the applicants to arbitration. The applicants are the defendant nos.\r\n41 and 42 in the suit filed by Lindsay International Private Limited (plaintiff\r\nno.1) and its majority shareholders and directors. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. Both the applications are being considered and disposed of by this\r\njudgment.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. Lindsay has filed the suit for a decree for specific performance of a\r\npre-incorporation agreement against the defendant nos. 1-38 and for\r\nspecific performance of a non-competition agreement against the defendant\r\nnos. 39-42 and for declaration and injunction. The applicants IFGL\r\nRefractories – the defendant nos. 41 and 42 in the suit – want all claims,\r\ndisputes and differences made by the plaintiff no.1 Lindsay against IFGL\r\n3\r\nwhich are the subject matter of the suit to be referred to arbitration in terms\r\nof the arbitration agreement contained in Purchase Orders issued by\r\nLindsay upon IFGL. The applicants also pray for stay of all further\r\nproceedings in the suit as against the applicants IFGL. The arbitration\r\nclause refers to IFGL as the ‘Seller’ and Lindsay as the ‘Buyer’ and covers\r\nany dispute, controversy or interpretation of any terms or claims arising out\r\nof or in connection with the Purchase Orders<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30. The recommendation of the Law Commission of discouraging reference\r\nwhere the parties to the action, who are not the parties to the arbitration\r\nagreement, are necessary parties to the action, read with the Note referring\r\nto Sukanya Holdings, did not serve as a trailer in the final cut of the 2016\r\nAmendment. The legislature, in fact, jettisoned the entire portion on\r\n“necessary parties” as well as Sukanya Holdings to declare, with\r\nunequivocal intent, that a judicial authority shall refer the parties to\r\narbitration “notwithstanding any judgment, decree or order of the Supreme\r\nCourt or any Court”. The amended section 8 hence does not contain any\r\nremnant of the recommendation with reference to Sukanya Holdings and\r\nhas thrown out any impediment in connection with the dictum in Sukanya\r\nHoldings, or any other judicial pronouncements before the amendment, in\r\nits entirety</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. The dictum in Sukanya Holdings that bifurcation of causes of action\r\nand parties cannot be permitted in adjudicating an application under\r\nsection 8 has been rejected in N.N. Global (see the preceding section of this\r\njudgment). Vidya Drolia also cannot also be used as a proposition to support\r\nthe plaintiffs’ argument that the entire cause of action in the suit must be\r\ncapable of being referred to arbitration in a section 8 application. In fact\r\nparagraph 225 of Vidya Drolia recognizes that judicial interference at the\r\nreference stage has been substantially curtailed and the 2015 amendment\r\nhas altered the structure of the Act to make it pro-arbitration. Paragraph\r\n154.3 of the said judgment further reinforces the principle of severability, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">competence-competence and that the Arbitral tribunal is the preferred first\r\nauthority to determine all questions of non-arbitrability. In paragraph 244.4,\r\nthe advice of the Supreme Court is “when in doubt, do refer”.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. The conclusion, without a doubt, is that Sukanya Holdings is no\r\nlonger a relevant factor for the Court to consider at the stage of reference in\r\nan application under section 8 of the Act. The Court is not even under a\r\nmandate, post amendment, to adjudicate on the bifurcability of the causes\r\nof action or the presence of parties who are necessary parties to the action\r\nbut not to the arbitration. The only brake in the momentum of reference is\r\nthe court finding, prima facie, that no valid arbitration agreement exists.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. The rejection of the Law Commission’s recommendation in the Note to\r\nsection 8 with regard to Sukanya Holdings was considered in Emaar MGF\r\nwhere the Supreme Court opined that pronouncements made prior to the\r\namendment were not to be adhered to as the legislative intent was to move\r\naway from the conditions in P. Anand and Sukanya Holdings. The Court\r\nproceeded to explain that the object of the amendment was to minimise the\r\nscope of the judicial authority to refuse reference to arbitration.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36. It is also important to bear in mind that the issue is not whether the\r\ndictum in Sukanya Holdings is correct, as the law laid down in that decision\r\nmay continue to be relevant for deciding applications under section 8 filed\r\nprior to the amendment of 2016 but not where the suit or application is filed\r\nafter 23.10.2015 when the amendment came into force </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>37. Existence of a valid arbitration agreement:-\r\nAccording to the applicants/defendant nos. 41-42, the Purchase Orders,\r\nplaced by the plaintiff no. 1 Lindsay on the applicants, contained terms and\r\nconditions relating to the purchase of refractory items from the applicants\r\neach one of which Orders contained an arbitration clause worded in\r\nidentical terms. This contention has not been disputed by the plaintiffs.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>38. All the Purchase Orders contain the above arbitration clause. It is also\r\nundisputed that the plaintiff Company accepted the invoice of the applicants\r\nin terms of the Purchase Orders without demur. The plaintiffs have also not\r\ndisputed the arbitrability of the dispute or the existence or validity of the\r\narbitration clause. Notably, the General Terms & Conditions of Supply dated\r\n1st September, 2010 issued by the plaintiff Lindsay on the vendor\r\ndefendants also contain an arbitration clause (Clause 19) and record that\r\nthe Terms shall remain valid for all the Purchase Orders issued by Lindsay\r\nafter 1st September, 2010 unless Lindsay confirms to the Seller/vendor\r\ndefendants of any modification or amendment to the Terms.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>39. It is relevant that by an order dated 22nd January, 2019 a learned\r\nSingle Judge of this Court allowed an application filed by the applicants\r\nunder section 11. The Special Leave Petition filed by the plaintiffs against\r\nthe order passed in the section 11 filed by the defendant nos. 41 and 42 has\r\nbeen dismissed by the judgment and order in Vidya Drolia.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>40. By reason of the free-ranging width of the arbitration agreement, all\r\ndisputes arising out of or in connection with the Purchase Orders are clearly\r\ncovered by the arbitration clause; Ref: Giriraj Garg Vs. Coal India Limited;\r\n(2019) 5 SCC 192, where the Supreme Court held that disputes ‘in connection with’ or in similarly-worded terms are to be given a broad\r\nmeaning and quoted Russell from his commentary on Arbitration (24th Edn.,\r\n2015) to note that such clauses may also be sufficient to catch disputes\r\narising under another contract related to the contract containing the\r\narbitration clause.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>41. In this context, reference may also be made to Ameet Lalchand Shah\r\nwhere the Supreme Court referred all the four agreements which formed the\r\nsubject matter of the suit to arbitration, although one of the agreements did\r\nnot contain any arbitration clause, on the ground that this particular\r\nagreement was connected with the others which had the arbitration clause.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>42. The factual difference between the case made out by the defendant\r\nnos. 41-42 as compared to defendant no. 39 is that the alleged agreement\r\nfor exclusivity/non-competition agreement is contained in written contracts\r\nof sale contained in 24 Purchase Orders issued between August to October,\r\n2016 which are also expressly covered by the arbitration agreement.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>43. In any event, the question whether the contract with the vendor\r\ndefendants is intertwined with the contracts between the plaintiff and the\r\nMittal defendants is a matter of interpretation of the contract as recorded in\r\nthe Purchase Orders and falls within the domain of the arbitrator. It is also\r\nrelevant that defendant nos. 1-38 (the Mittal group of defendants) have not\r\nopposed the present application for reference to arbitration. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>44. The requirement of a valid arbitration agreement involves a dispute\r\nwhich is arbitrable and was clarified by the Supreme Court in N.N. Global. In\r\nthe said decision, all civil or commercial disputes which are capable of being\r\nadjudicated by a Civil Court in principle were held to be capable of being\r\nresolved unless specifically excluded by statute or by necessary implication.\r\nThe Arbitration and Conciliation Act, 1996 does not contain any provision\r\nby which any particular category of disputes are held to be non-arbitrable.\r\nsection 2(3) of the Act saves certain prevalent laws under which disputes\r\nmay not be submitted to arbitration. The Supreme Court also clarified that\r\nactions in personam which determine the rights and interest of the parties to\r\nthe subject matter of the dispute are clearly arbitrable.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>45. The present case squarely falls within the dictum of N.N. Global. It is\r\nnot a lis in rem or a claim to exercise a right against the world at large. The\r\nclaims and disputes are entirely between private parties for determination of\r\ntheir rights and obligations as contained in the Purchase Orders containing\r\nthe arbitration clause. It is also not a case where the cause of action and\r\nsubject-matter of the dispute require centralized adjudication or would have\r\nthe effect of binding third parties thereby rendering piecemeal adjudication\r\ninappropriate and unenforceable. It may also be noted that, even before the\r\namendment was effected to section 8 in 2016, once the existence of a valid\r\narbitration agreement was admitted, the judicial authority was statutorily\r\nmandated to refer the matter to arbitration; Rashtriya Ispat Nigam Ltd. Vs.\r\nVerma Transport Co.; (2006) 7 SCC 275.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>46. Prima facie finding:\r\nA prima facie finding necessarily implies a first assessment of a matter as\r\nopposed to a full review of the merits of the case. Borrowing an expression\r\nfrom Vidya Drolia, a prima facie review at the reference stage is to “cut the\r\ndeadwood and trim off the side branches in straightforward cases where\r\ndismissal is barefaced and pellucid and when on the facts and law the\r\nlitigation must stop at the first stage.” The rejection of the reference in such\r\ncase is only premised on the absence or non-existence of a valid arbitration\r\nagreement or where the dispute or subject matter is not arbitrable. In Vidya\r\nDrolia, the Supreme Court clarified that exercise of the limited power of\r\nprima facie review only ensures that frivolous matters are shed at the initial\r\nstage and does not in any way interfere with the principle of competencecompetence or impede arbitration proceedings.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>47. The decisions relied upon on behalf of the plaintiffs proceed on the\r\nconditions required for reference before the amendment to section 8. Bengal\r\nImmunity Company Limited Vs. State of Bihar; AIR 1955 SC 661 has been\r\ncited for the proposition that judgments prior to an amendment remain good\r\nlaw unless overruled. This decision along with Sukanya Holdings is no\r\nlonger relevant in view of the reasons given in the earlier part of this\r\njudgment, namely, that Sukanya Holdings has not been accepted in the final\r\namendment and the subsequent clarification of the legislative intent by the\r\nSupreme Court in Emaar MGF</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>48. It should also be added that bifurcation of parties and of the cause of\r\naction, as recommended by the Law Commission, was restricted only to\r\n“necessary parties”. However, even this restricted recommendation was done\r\naway with and replaced by“…notwithstanding any judgment, decree or order\r\nof the Supreme Court or any Court,…”.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>49. In any event, the statements in the plaint reflect that the cause of\r\naction as pleaded against the vendor defendants including the defendant\r\nNos. 41-42 and the reliefs prayed against the said defendants render the\r\nother parties wholly unnecessary for adjudication of the dispute. The cause\r\nof action against the defendant Nos. 41-42 is essentially for breach of an\r\nalleged non-competition clause contained in the agreement where none of\r\nthe other Mittal defendants are signatories or parties. Hence the other\r\ndefendants are not necessary or even proper parties, which is also reiterated\r\nin paragraph 12 of the plaint. This paragraph states that the plaintiffs have\r\nindependent agreements with each of the vendors and further that the\r\nvendors have no contractual privity with any of the Mittal Companies at all.\r\nWith regard to bifurcation of cause of action, Paragraph 28 of Vidya Drolia\r\ndefines the expression “cause of action” in relation to the subject matter to\r\nmean as one which relates to the scope of the arbitration agreement and\r\nwhether the dispute can be resolved by arbitration. Garware Wall Ropes\r\nLimited Vs. Coastal Marine Constructions and Engineering Limited; (2019) 9\r\nSCC 209 placed reliance on SMS Tea Estates (P) Ltd. Vs. Chandmari Tea Co.\r\n(P) Ltd., (2011) 14 SCC 66 and has been overruled by the Supreme Court in\r\nN.N. Global. Certain other views expressed in Garware Wall Ropes which <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">were noted with approval in Vidya Drolia (Paragraph 147.1) have now been\r\nreferred to a larger bench in N.N. Global. The judgments of the Supreme\r\nCourt in Duro Felguera S.A. Vs. Gangavaram Port Limited; (2017) 9 SCC 729\r\nand Uttarakhand Purv Sainik Kalyan Nigam Limited Vs. Northern Coal Field\r\nLimited; (2020) 2 SCC 455 were in the context of applications under section\r\n11 of the Act and considered the effect of the amendment on National\r\nInsurance Co. Ltd. Vs. Boghara Polyfab (P) Ltd. (2009) 1 SCC 267 and S.B.P &\r\nCo. Vs. Patel Engg. Ltd. (2005) 8 SCC 618, respectively. Pravin Electricals Pvt.\r\nLtd. Vs. Galaxy Infra and Engieering Pvt. Ltd. (2021) 5 SCC 671 was also in\r\nthe context of section 11(6). The Supreme Court however left the question\r\nwith regard to existence of arbitration agreement to be decided by the\r\narbitrator. The judgment of a learned Single Judge in Emirates Grains\r\nProducts Co. LLC Vs. L.M.J. International Ltd.; (2009) 4 CHN 125 has been\r\nchallenged and the appeal is pending. The said judgment is also of an\r\napplication filed under section 45 of the 1996 Act and not under section 8.\r\nThe unreported judgment of a learned Single Judge of this Court in G.A. No.\r\n820 of 2020 with C.S. No. 02 of 2017: Lindsay International Private Limited\r\nVs. Laxmi Niwas Mittal involved an application filed by one of the parties\r\nseeking reference under section 8 after filing the written statement. This\r\nhas been specifically made statutorily impermissible under the amended\r\nsection 8. The said judgment also does not concern the applicants or any of\r\nthe vendor defendants</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>50. Therefore, none of the decisions cited assist the plaintiffs or persuade\r\nthe Court that the present application under section 8 must fail either on\r\nthe ground of Sukanya Holdings or otherwise.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>51. This Court is hence of the view that the applicants/ defendant nos.\r\n41-42 have successfully made out a case for reference of the disputes to\r\narbitration in terms of the arbitration agreement contained in the Purchase\r\nOrders. The only question which remains is the fate of the suit as far as\r\ndefendant nos. 41 and 42 are concerned. As held in Hindustan Petroleum\r\nCorpn. Ltd. v. Pinkcity Midway Petroleums; (2003) 6 SCC 503, once an\r\napplication under section 8 is allowed, the Civil Court does not retain\r\njurisdiction to entertain the suit as against the defendants who filed the\r\napplication for reference.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>52. G.A. nos. 174 and 175 of 2017 are accordingly allowed in terms of\r\nprayers (a) and (b). All claims made by the first plaintiff against the\r\ndefendant nos. 41 and 42 and all disputes, differences and controversies\r\nraised against the said defendants, which are the subject matter of the suit,\r\nshall be referred to arbitration in terms of the arbitration agreement. There\r\nshall also be a stay of all further proceedings in CS No. 2 of 2017 as against\r\nthe defendant nos. 41 and 42.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>53. The applications are disposed of.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'bffc31f289c37c03de45976ef1391ea0.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-26', 1, '', '', '2022-03-25 20:22:15', '2022-03-26 17:47:30');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1484, 'PIjnxodoZPrG9vkGB4J3umPtI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SARFAESI - Section 14. Borrower has no right of hearing when Magistrate considers application to take over possession. Bombay High Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Manisha Mehta and Others Vs The Board of Directors of ICICI Bank and Others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 8418 of 2022 decided on 23 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.S Karnik and Chief Justice Dipankar Datta.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This writ petition is at the instance of multiple petitioners\r\nwho are all debtors of different banks/financial institutions\r\n(hereafter ‘the secured creditors”, for short). They are\r\naggrieved by orders passed by District Magistrates/Chief\r\nMetropolitan Magistrate under section 14 of the Securitisation\r\nand Reconstruction of Financial Assets and Enforcement of\r\nSecurity Interest Act, 2002 (hereafter “the SARFAESI Act”, for\r\nshort). Some of the petitioners have approached the\r\njurisdictional Debts Recovery Tribunal under section 17 of the\r\nSARFAESI Act and proceedings are pending.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. The main prayer of the petitioners is for a declaration that\r\nnatural justice should be read into section 14 of the SARFAESI\r\nAct.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. Mr. Nedumpara, learned advocate appearing for the\r\npetitioners refers to the well-known principle of law that if a\r\nstatute does not exclude compliance with natural justice\r\nprinciples either expressly or by necessary implication,\r\ncompliance with natural justice has to be read into the\r\nstatute. He argues that the SARFAESI Act has neither\r\nexpressly excluded nor excluded by implication the\r\nrequirement to comply with natural justice while the District\r\nMagistrate/Chief Metropolitan Magistrate considers an\r\napplication of a secured creditor under section 14 and passes\r\nan order thereon; therefore, natural justice has to be read\r\ninto section 14 for ends of justice. It has also been contended\r\nthat since an order of the CMM/DM under section 14 for taking\r\npossession would visit a borrower with civil consequence, no\r\nsuch order can be made without complying with natural\r\njustice. Reliance has been placed by him on the decisions in\r\nState of Orissa vs. Binapani Dei, A.K. Kraipak vs. Union\r\nof India,  and Maneka Gandhi vs. Union of India, in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">support of his contention.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. We do not find any reason either to doubt such\r\nestablished principle of law, as canvassed, or not to be bound\r\nby the ratio decidendi of the decisions cited at the Bar.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. However, the contention of Mr. Nedumpara has no\r\nsubstance having regard to the scheme of the SARFAESI Act,\r\nas explained in Mardia Chemicals vs. Union of India, Transcore vs. Union of India, and V. Noble Kumar vs.\r\nStandard Chartered Bank, and other decisions. The\r\nSARFAESI Act is intended to facilitate quick recovery of\r\nsecured debts without extending any opportunity of hearing to\r\na borrower and without judicial/quasi-judicial intervention till\r\nsuch time possession of the secured asset is taken by the\r\nsecured creditor after serving the requisite notices and\r\nresponding to the objection/representation that may be\r\nlodged/preferred by the borrower under section 13(3A). That\r\nMardia Chemicals (supra) and Transcore (supra) are presection amendment decisions, make no difference. There is\r\nno fundamental change in the object and purposes of the\r\nSARFAESI Act even after the amendments. Since the need for\r\na borrower to draw legal assistance arises only after a\r\ndemand notice under sub-section (2) is issued, it has been\r\nexperienced in very many cases that sub-section (1) of\r\nsection 13, which is the harbinger of misfortune of recalcitrant\r\nborrowers, is completely overlooked by those representing\r\nthem. It permits enforcement of security interest without the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">intervention of a court/tribunal but in accordance with the\r\nstatutory provisions. The present case is not too different.\r\nDecision by a quasi-judicial authority (see section 17) upon\r\ncompliance with natural justice stands deferred till such time\r\npossession, either symbolic or physical, is taken. The\r\nSARFAESI Act does not remotely suggest compliance with\r\nnatural justice at the stage when section 13(4) or 14\r\noperates. Paragraph 36 of V. Noble Kumar (supra) explains\r\nthat there are 3 (three) methods for taking possession of a\r\nsecured asset. In view thereof, section 14 cannot stand\r\nindependent of section 13(4). If a borrower has no right of\r\nhearing when the secured creditor takes possession under\r\nsection 13(4), a fortiori, no hearing can be demanded by a\r\nborrower when he succeeds in resisting possession being\r\ngained over by the authorized officer of the secured creditor\r\nor does not on his own surrender possession, and thus\r\ncompels such officer to work out the remedy by seeking\r\nassistance of the District Magistrate/Chief Metropolitan\r\nMagistrate, as the case may be, under section 14. Only a\r\npost-possession right to approach the tribunal is conferred on\r\na borrower in terms of section 17, nothing more and nothing\r\nless. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8. Pertinently, section 14 of the SARFAESI Act was amended\r\ntwice, once in 2013 and then again in 2016. If it were the\r\nintention of the legislature to extend opportunity of hearing to\r\na borrower before the District Magistrate/Chief Metropolitan\r\nMagistrate, as the case may be, it was free to do so.\r\nAdvisedly, the legislature did not do so, for, it would have\r\nmilitated against the scheme of the SARFAESI Act and more </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">particularly section 13 thereof. It is implicit in the scheme of\r\nthe SARFAESI Act that natural justice, only to a limited\r\nextent, is available and not beyond what is expressly\r\nprovided. There seems to be little merit in the argument\r\nadvanced by Mr. Nedumpara and we hold that the language of\r\nsection 14 is too clear and unambiguous, and does not admit\r\nof any requirement of complying with natural justice by\r\nputting the borrower on notice while an application thereunder\r\nis under consideration.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Our view as aforesaid finds support from the coordinate\r\nbench decision of this Court in the case of M/s. Trade Well\r\nvs. Indian Bank.7 Although an off-the-cuff response of Mr.\r\nNedumpara is heard that M/s. Trade Well (supra) does not\r\nlay down correct law, we find no reason to accept such\r\nresponse. In our opinion, the coordinate Bench in M/s. Trade\r\nWell (supra) has laid down a proposition of law which is\r\ncorrect and we share the view expressed therein.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">10. The decisions in Binapani Dei (supra), A.K. Kraipak\r\n(supra) and Maneka Gandhi (supra) were rendered in\r\nentirely different fact situations. The law laid down therein\r\nwould, however, not be applicable in view of our own reading\r\nand understanding of the decisions in Mardia Chemicals\r\n(supra), Transcore (supra) and V. Noble Kumar (supra),\r\nrendered on consideration of the SARFAESI Act. We reiterate\r\nthat natural justice for a borrower within the meaning of\r\nsection 2(f) of the SARFAESI Act has very limited application\r\nin actions taken for enforcement of security interest </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and stands excluded till\r\nsuch time recourse is taken to section 17.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. What remains is consideration of the other prayers, viz.\r\n(b) and (c). We have noted above that some of the petitioners\r\nhave approached the jurisdictional Debts Recovery Tribunal\r\nunder section 17 of the SARFAESI Act. The application(s)\r\nis/are pending. Invocation of the writ jurisdiction during such\r\npendency amounts to pursuing the writ remedy as a parallel\r\nremedy. Such a course of action is ordinarily not permissible.\r\nIf any authority is required, we may refer to the decisions of\r\nthe Supreme Court in Delhi Gate Auto Service Station vs.\r\nB.P.C.K. Agra Th. Sr. Div. Manager & Ors.and Orissa\r\nPower Transmission Corporation Ltd. v. Asian School of\r\nBusiness Management Trust9 as well as decisions of this Court\r\nin Digambar & Anr. vs. Union of India & Anr., John\r\nSebastian Zezito Lobo vs. Assistant Commissioner of\r\nIncome Tax, Circle-2(1), Panaji & Ors., Rambo\r\nFashion Limited vs. Board of Directors State Bank of\r\nIndia & Ors. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. Additionally, in K. S. Rashid And Son vs. Income-tax\r\nInvestigation Commission,the Constitution Bench of the\r\nSupreme Court noticed that the appellants having already\r\navailed of the remedy provided for in section 8(5) of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Investigation Commission Act and that a reference had been\r\nmade to the Allahabad High Court in terms of that provision\r\nwhich was awaiting decision, held that it would not be proper\r\nto allow the appellants to invoke the discretionary jurisdiction\r\nunder Article 226 of the Constitution of India at that stage.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>14. Since some of the petitioners have taken recourse to the\r\nproceedings under section 17 of the SARFAESI Act, which are\r\npending, we would not be unjustified in drawing guidance\r\nfrom the decision in K. S. Rashid (supra) and hold that the\r\nremedy provided for in Article 226 of the Constitution of India,\r\nbeing a discretionary remedy, it would be just and proper to\r\nrefuse to grant any writ in this particular case based on our\r\nsatisfaction that the petitioners do have an adequate or\r\nsuitable relief elsewhere. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>15. Since the SARFAESI Act provides a remedy which is\r\nbeing pursued, this writ petition ought not to be entertained\r\nfor considering prayers (b) and (c). These prayers are also\r\nrejected.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>16. For the reasons as above, this writ petition stands\r\ndismissed. There shall be no order as to costs.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>17. All contentions on the merits of the application(s)\r\npending before the jurisdictional Debts Recovery Tribunal\r\nunder section 17 of the SARFAESI Act are left open.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '11c1f4d36f99c2a27d442cca24dc194d.jpeg', 'c5515d9c40fb7c4bcc64a06550060bcb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-28', 1, '', '', '2022-03-27 17:44:34', '2022-03-27 07:34:51'),
(1485, '1N1xroLfStwgOhC2wyRZzDNOM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Every citizen has a right to bid for public property in auction. Court, after setting aside illegal allotment, cannot hold auction in the Court only among the parties before it.  Allahabad High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chatthu Vs State of UP and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Special Appeal (D) 8 of 2010 decided on 1 February 2010.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Arun Tandon and Chief Justice C.K Prasad.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Respondent no. 6-appellant, aggrieved by order dated 1.12.2009\r\npassed by a learned Single Judge in Civil Misc. Writ Petition No. 54588\r\nof 2009, has preferred this appeal under Rule 5 Chapter VIII of the High\r\nCourt Rules.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Facts:- </b></span><b style=\"font-size: 12pt;\">Fisheries right over pond appertaining to plot no. 332 having an\r\narea of 0.739 hectares situate in village Rakksha, Tehsil Shohratgarh in\r\nthe district of Siddharthnager was granted to respondent no. 6-appellant\r\n(hereinafter referred to as \'appellant\') for ten years on payment of\r\nRs.7,400/- per year. No advertisement preceded the settlement. Writ\r\npetitioner-respondent no. 6 (hereinafter referred to as \'respondent no. 6\')\r\nchallenged the same in the writ application. When the matter was taken\r\nup on 23rd of November, 2009, the Court relying on a Full Bench\r\nauthority of this Court in the case of Ram Kumar vs. State, 2005 (99)\r\nRD 823 observed that fisheries right had to be granted after due\r\nadvertisement and further, relying on the decision of the Supreme Court\r\nin the case of Ram & Shyam Company vs. State of Haryana, AIR\r\n1985 S.C. 1147, decided to auction the fisheries right in Court on\r\n25.11.2009. The Court further observed that the counsel representing the\r\nparties shall seek instructions in this regard. When the matter was taken\r\nup. On 25th of November 2009, at the request of the appellant, it was a<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">djourned to 30th November 2009.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>On 1.12.2009, learned counsel for the appellant was not present.\r\nTaking note of the offer of the respondent no. 6, the learned Single\r\nJudge cancelled the fisheries right granted to appellant and further\r\ndirected that fisheries right be given to respondent no. 6 for ten years on\r\npayment of Rs.13,000/- per year. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mr. Sobhit Dube, appearing on behalf of the appellant submits\r\nthat the learned Single Judge may be right in cancelling the settlement\r\nmade in his favour but it ought not to have directed for settlement of the\r\nfisheries right in favour of respondent no. 6. He submits that as there\r\nwas no advertisement at all, the settlement ought not to have been\r\nconfined between respondent no. 6 and the appellant, and taking into\r\naccount the offer made by respondent no. 6, settlement ought not to\r\nhave been directed in his favour. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ms. Afshan Shafaut, appearing on behalf respondent no. 6,\r\nsubmits that as the respondent no. 6 had offered higher amount, the\r\nlearned Single Judge did not err in directing for settlement of the\r\nfisheries right in his favour.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Undisputedly, before settlement of the fisheries right, no <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">advertisement in the Newspaper was at all made. A Full Bench of this\r\nCourt in the case of Ram Kumar and others vs. State of U.P. And\r\nothers, [2005 (99) RD 823] had the occasion to consider this question\r\nand has observed in categorical terms that as a general rule notice\r\nshould be published in a newspaper having wide circulation for the\r\nsettlement of fisheries right.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>It is nobody\'s case that because of any exceptional circumstance,\r\nconscious decision was taken not to make an advertisement in the\r\nNewspaper. On the face of it, in our opinion, when admittedly the\r\nsettlement of the fisheries right was made in favour of appellant without\r\nany advertisement, same was fit to be quashed and was rightly quashed\r\nby the learned Single Judge. In fairness, it has not been questioned.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>However, the question which falls for determination is as to\r\nwhether the learned Single Judge should have proceeded to hold auction\r\nin the Court and to direct settlement in favour of respondent no. 6\r\ntaking into account his offer.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In the facts of the present case, we are of the opinion that the\r\nlearned Judge ought not to have chartered this course. Undisputedly, in\r\nthe present case, no advertisement was published. We do not know the\r\nnumber of persons, who may be interested in taking the settlement.\r\nThere may be a case in which after the advertisement only two persons\r\nmake their offers and the matter ultimately travels to the Court, in such\r\ncircumstance, this Court may exercise its discretion to hold auction\r\nbetween bidders and to see the bonafide of the auction, by asking the\r\nparties to make offer. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>It is well settled that the property of the State or its agency is a\r\ncommunity property and every citizen of this country has vital interest\r\nin its effective use and disposal. As the property is a public property,\r\nevery citizen has the right to bid for its settlement. A large number of\r\npersons, in absence of advertisement, who might have been interested in\r\ngetting the settlement, were deprived of their right to participate in the\r\nauction. The State or its agency is not free like an ordinary citizen in\r\nselecting recipient for its largesee.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>It is not the case of the appellant that he was selected in\r\nconformity with any State policy and he is the only person concerned\r\nunder that policy. In the face of it, we are of the opinion that the learned\r\nSingle Judge erred in directing for holding of auction confining it to the\r\nappellant and respondent only. In view of what we have observed\r\nabove, direction to make settlement in favour of respondent no. 6 is fit\r\nto be set aside.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The authority of the Supreme Court in the case of Ram & Shyam\r\n(supra) does not, as a proposition of law lays down that when there is\r\nchallenge to the auction conducted by the functionary of the State or its\r\nagency, the Court as a matter of course shall conduct the auction. In this\r\ncase, notification was issued fixing the date of auction and the highest\r\nbid of one of the participants was accepted by the officer conducting the\r\nauction but it was not accepted by the Government and the offer of a\r\nperson who made higher offer was accepted. On a challenge made, the\r\nSupreme Court asked the competing claimants to make their offers.\r\nHere in the present case, no notice for auction was published, and as\r\nsuch it is difficult to assume that besides the two claimants, others were\r\nnot willing to take the settlement and hence, reliance by the learned\r\nSingle Judge on the said judgement to hold auction in Court confining it\r\nto two claimants only is misplaced.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b style=\"font-size: 12pt;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the result, the appeal is partly allowed and the order of the\r\nlearned Single Judge, to the extent it directs for settlement in favour of\r\nrespondent no. 6, is set aside. No cost.</span></b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9e56d122a0788bc766bd3d7504a09571.png', '819455ba15cf1109c72e96946f299335.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-29', 1, '', '', '2022-03-27 19:48:24', '2022-03-29 18:58:24'),
(1494, 'ibTqvDSGdx7qjOT8iLn2f7HfB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Guardians and Wards Act 1890. Unless prejudice is established, mere non/improper representation of the minor will not give cause of action to the minor to seek setting aside of the decree. Kerala High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Tresa Xavier and others Vs Mary Simon and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>RP 392 of 2016 decided on 28 February 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A. Muhamed Mustaque and Justice Sophy Thomas.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The review petitioner was a minor in the\r\nproceedings before the District Court and became major\r\nbefore the disposal of the case before the District Court. The\r\nreview petitioner was shown as a minor in the appeal under\r\nreview as well. The records of the District Court show that\r\nthere was no application for appointment of a guardian for\r\nthe minor before the District Court nor had the Court\r\nappointed a guardian. The point that arises in this review is\r\nwhether the decree passed against a minor without the\r\nminor being represented by a guardian, duly appointed by a Court, renders the decree as nullity. So also the dismissal of\r\nthe appeal, overlooking the nullity of the decree passed by\r\nthe District Court warrants a review at the instance of the\r\nminor.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The point of law arises in the context of Order\r\n32 Rule 3 and Rule 3A of the Code of Civil Procedure, 1908\r\n(CPC).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">14. The Court, as seen from the mandate of Rule 3, is\r\nbound to appoint a guardian for the minor. The Court\'s role\r\nin appointing the guardian of the minor is to ensure that the\r\ninterest of the minor is protected. The Court also has to\r\nmake sure that the proposed guardian would not act against\r\nthe interest of the minor in regard to matters in controversy.\r\nThere cannot be any doubt that if there was no appointment\r\nof a guardian by the Court for the minor, the proceedings\r\nwould be rendered as a nullity qua minor. See the judgment\r\nof K.P. Natarajan\'s case (supra), Kameshwari Devi\'s case\r\n(supra), Nagaiah\'s case (supra). The statutory provisions\r\nunder Order 32 Rule 3A provides a safeguard against\r\nsetting aside the decree unless it is shown that prejudice has\r\nbeen caused to the interest of the minor. Merely because the\r\nminor has not been represented, a decree cannot be set\r\naside except in circumstances where prejudice has been </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">resulted consequent upon non representation of the minor\r\nby the guardian appointed by the Court.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 15. What is the prejudice? How the Court has to deal\r\nwith prejudice is the matter of concern of the Court. When\r\nit is shown that the minor has not been properly\r\nrepresented, the Court must conduct an inquiry as to the\r\nprejudice occasioned to the minor.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. The prejudice may occasion consequent upon non\r\ncontest of the case, negligence in conduct of the case and\r\nfraud committed to the proceedings. When minor is\r\nlitigating on common issues or rights available to all\r\ncontesting parties and when it is shown that there was\r\nserious contest of the matter by adducing all possible evidence, can we hold that prejudice has been caused to the\r\ninterest of the minor?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. This is not a case where fraud could be alleged in as\r\nmuch as that, the review petitioner is deemed, was not a\r\nparty to the proceeding. When there was no appointment of\r\na guardian by a formal order of the court, necessarily it\r\nmeans that the minor was not represented in the\r\nproceedings. Therefore, we have to proceed in examining\r\nthe prejudice qua potential adverse interest on account of\r\nnon contest on behalf of the minor.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 18. A guardian ad litem is responsible for representing\r\nthe interest of the minor. The party may fail in appointing\r\nthe guardian but the Court cannot fail in its duty to appoint\r\nthe guardian. See K.P.Natarajan\'s case (supra). In this case,\r\nwe are examining irregularity in the context of common\r\nlitigating issue related to propounding a Will. In a\r\nsituation like this, first, the Court has to examine whether\r\nthe minor had an independent or distinct issue or right in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the litigation. If the minor had an independent and distinct\r\nright, than that of the other litigating parties to the case, the\r\nCourt can easily conclude that prejudice has been caused to\r\nthe minor. If the minor is having only a common litigating\r\nissue or right, the Court has to hold that the minor\'s interest\r\nhas been substantially represented by the other litigants\r\nwho were litigating on the common right available to them.\r\nThe substantial representation would necessarily mean that\r\nthere was full-fledged adjudication and trial of the case.\r\nOnce it is shown that there was substantial representation,\r\nthe Court must refuse to set aside the decree. However,\r\nthere is an exception to this rule. If it was shown that there\r\nwas negligence in conducting the case by the litigating\r\nparties, the minor can very well seek setting aside of the\r\ndecree, pointing out prejudice.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 19. Doctrine of substantial representation is a principle\r\nof law applicable to the substantial rights of the parties. The\r\nCourts in common law jurisdiction are not only Courts of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">law but also Courts of equity. It is a fundamental principle\r\nthat all persons interested in the subject matter of the suit\r\nshould be party to such proceedings. When there is no\r\nguardian appointed to a minor by the Court, in essence, it\r\nwould be looked upon as though the party who is having\r\ninterest was not joined in the proceedings. In such\r\nproceedings, no doubt, when a party having substantial\r\ninterest is omitted, the decree and judgment will not bind\r\nsuch party who is having interest in the subject matter.\r\nHowever, the theory of substantial representation is an\r\nexception followed in Courts of equity. In every lis, finality\r\nof the lis is the principle adopted by the Court. Explanation\r\nVI to Section 11 of CPC brings home on the point of\r\ncontroversy here. Section 11 is the last word in culmination\r\nof the issues in lis between the parties. Section 11 of CPC\r\nrefers to finality of judgment and the binding nature of\r\njudgment on all who are litigating on a common public or\r\nprivate right. Section 11 explanation VI states that where </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">persons litigate bona fide in respect of a public right or of a\r\nprivate right claimed in common for themselves and others,\r\nall persons interested in such right shall, for the purpose of\r\nthis section, be deemed to claim under the persons so\r\nlitigating. The theory of substantial representation has\r\nstatutory recognition through explanation VI of Section 11\r\nCPC. The learned Senior Counsel Shri Mathai Paikaday\r\nplacing reliance on K.P.Natarajan\'s case (supra), particularly\r\nreferring to para.23 of the judgment submits that a decree\r\nwithout appointing guardian is ipso facto void and without\r\nfurther probe, the court has to declare that the decree is in\r\nnullity. We are afraid to apply this proposition of law\r\nargued by the learned Senior Counsel to facts of this case.\r\nAs seen from the facts of K.P.Natarajan\'s case, the decree\r\nwas an ex parte decree and there was no contest on the side\r\nof the other parties arrayed. In such circumstances, there\r\nwas no difficulty to hold that decree is ipso facto nullity.\r\nOn the other hand various precedents would go to show </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">hat when the minor\'s interest has been substantially\r\nrepresented, no prejudice would occur to the minor on\r\naccount of irregularity in the proceedings due to non\r\nappointment of guardian by a formal order by the Court.\r\nSee the judgments Subramanyam Chettiar and others v.\r\nIsaki Ammal [AIR 1953 Madras 12], Gurdeep Kaur and\r\nAnother v. Avinder Singh [2019 KHC 4004], Naseem\r\nAhmed and Others v. 1st Additional District Judge, Haridwar\r\nand Others [2020 KHC 2097], Saradamani v. Rajendran\r\n[AIR1981 Madras 217].</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. The substantial representation of minor\'s interest\r\nis still open for challenge, in view of Rule 3A of Order 32\r\nCPC if the minor is able to demonstrate negligence of the\r\nparty who litigated the issue encompassing the minor\'s\r\ninterest. This ground is available to a minor even if the\r\nminor has been represented by a guardian who was\r\nformally appointed by an order of the Court. The \'prejudice\'\r\nreferred under Rule 3A of Order 32 CPC also may result <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">from negligence, on the part of the litigating parties.\r\n\'Negligence\' in this context means, carelessness in\r\nconducting the litigation on common issues or rights\r\navailable to all. Negligence in conducting the litigation\r\nrefers to the failure of the action of a litigant in taking\r\nreasonable steps that ought to have been taken to prosecute\r\nor defend the case. If the suit was not conducted or resisted\r\nwith care and prudence that are ordinarily required in such\r\nsuit, negligence may occur. A Division Bench of the Andhra\r\nPradesh High Court in Chatrati Sriramamurthi and another\r\nv. Official Receiver, Krishna and others [AIR 1957 AP 692]\r\nat para.6 referred to negligence of a guardian of a minor\r\nafter relying on many precedents. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. It is the duty of the minor who was not represented,\r\nto demonstrate prejudice by proving elements of negligence,\r\nto seek setting aside of the decree. Non representation of\r\nthe minor or improper representation of the minor itself,\r\nwill give no cause of action to the minor to seek setting\r\naside of the decree in a contested matter on common\r\nlitigating issues or rights also available to the minor. In this\r\ncase, the review petitioner miserably failed to demonstrate\r\nany negligence on the part of Tresa in conducting the case.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. The Hon\'ble Supreme Court in Bishundeo Narain\r\nand Another v. Seogeni Rai and Jagernath [AIR 1951 SC\r\n280] observed that if the minor can show fraud or\r\nnegligence on the part of his next friend or guardian ad\r\nlitem, it entitles the minor to challenge the decree passed\r\nagainst him and avoid its effects. This view also has been\r\nreiterated in Kameshwari Devi\'s case</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. Prema Maxi, has no independent claim different\r\nfrom Tresa. The common claim of Tresa and the children of\r\nTresa\'s foster daughter was based on the Will alleged to\r\nhave been executed by Antony. The Trial Court as well as\r\nthis Court in appeal, relied on medical evidence and other\r\nevidence to hold that Antony was of unsound mind. All\r\npossible evidence that could have been brought before the\r\nCourt were made available. Prema Maxi also failed to\r\nprove any negligence in the conduct of the case by Tresa.\r\nOn minor coming of age, she could have also very well\r\ncontested the appeal. She was represented by her father\r\nbefore the District Court and this Court.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. Coming back to R.P.No.392/2016 filed by Tresa\r\nXavier, who was the original appellant before this Court, we\r\nfind no reason to interfere invoking review jurisdiction of\r\nthis Court. This Court had appreciated factual matters\r\nbased on the available evidence on record. Appreciation of\r\nevidence in appeal cannot be subjected to review <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">jurisdiction. This Court had examined all evidence adduced\r\nby her to come to a conclusion that Antony was of unsound\r\nmind and incapable of executing a Will. The Court\r\nparticularly noted the report of the Process Server, medical\r\nevidence etc. to come to such a conclusion. In such\r\ncircumstances, we are declining to invoke review\r\njurisdiction to reconsider the appreciation of the facts and\r\nevidence analysed by this Court. No review warrants.\r\nR.P.No.392/2016 is liable to be dismissed.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> In the result, R.P.Nos.392/2016 and 667/2016 are\r\ndismissed. No order as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '54c5b9bd3eec0ae0cbc47a241045fb85.jpeg', '90725f431be569f6d537c3590faaae2b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-30', 1, '', '', '2022-03-29 19:29:29', '2022-03-30 17:55:30');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1493, 'uHJh3z9PYXVFk1KZp3n2a3Hio', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Section 267. Accused can NOT be detained by the jail authorities only on the basis of \'\'body warrant\'\' without there being any detention order or judicial order. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M. Shashidhara and others vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 1396 of 2022 decided on 11 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V Srishananda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Brief facts of the case are as under: The petitioners herein were arrested by the Police of New Extension Town Police Station, Tumakuru on 06.12.2021 in respect of Crime No.87/2021. They were sent to judicial custody. Thereafter, Jayanagar Police, Tumkuru, registered a case in Crime No.20/2021 against the petitioners. Since the custodial investigation of the petitioners was necessary in Crime No.&nbsp; 20/2021,&nbsp; Jayanagar Police filed an application before the Jurisdictional Magistrate in Crime No. 20/2021 seeking custody of the petitioners as is contemplated under&nbsp; Section 267 Cr.P.C., on 08.12.2021. The said application was allowed on 27.12.2021 and thereafter, the custody of the petitioners was granted to Jananagar Police Station for the period from 29.12.2021 to 30.12.2021. Admittedly,&nbsp; the said order came to be passed by exercising the powers vested with the learned Trial Magistrate under Section 267 Cr.P.C. The order of handing over the custody of the petitioners to Jayanagar Police in respect of investigation in Crime No. 20/2021 from custody in Crime No. 87/2021 was as per Form No.36 of Cr.P.C. On completion of the custodial investigation, the petitioners were sent back to the judicial custody in Crime No.87/2021.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The petitioners were enlarged on bail by order dated 18.01.2022 in Crime No.87/2021. However, the petitioners were not released by the jail authorities though they had the benefit of grant of bail in Crime No. 87/2021 purportedly on the ground that there is a body warrant issued by the learned Magistrate in respect of Crime No.20/2021. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Therefore, the petitioners approached learned District Judge for grant of bail under Section 439 of Cr.P.C. in Criminal Misc. Petition No.66/2022. Learned III Addl. District and Sessions Judge, Tumakuru after hearing the Public Prosecutor, on merits dismissed the application filed under Section 439 of Cr.P.C. Thereafter, the petitioners are before this Court with the aforesaid prayer.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21.Therefore, necessity has arisen for this Court&nbsp; to consider the principles of law enunciated in Gaurav Geol’s case vis-a-vis, the subsequent orders. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22. On such perusal, this Court is of the considered opinion that the order passed by the Division Bench in Gaurav Geol’s case supra refers to the principles of law enunciated by the Hon\'ble Supreme Court in the case of Ram Dass Ram’s case supra and discussed in detail the inter play of the relevant provisions of Cr.P.C. and also discussed in detail about the power of the jail authorities to detain a person on the ground of pending body warrant issued under Section 267 of Cr.P.C. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23. It is pertinent to note that in the State of Karnataka, the order passed by the Court under Section 267 Cr.P.C., is popularly called as ‘body warrant’ and in&nbsp; &nbsp;the other parts of the country, it is called as ‘production&nbsp; and transit order’ or in some States, it is also called as ‘PT Warrant’ (Production &amp; Transit warrant’). The usage of the word warrant in such type of orders is in the considered opinion of this Court misnomer having regard to the contents of the Forms in Form Nos.36 and 37, referred to supra. Wherever legislation wanted the use of the word ‘Warrant’, they have used so (Ex. Form Nos.34 and 35). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"background-color: rgb(255, 255, 0);\"><font face=\"Calibri, sans-serif\"><b>24. On careful consideration of the contents of the above Forms, it is crystal clear that there is no warrant to the Jail Authority to detain a person while passing an order under Section 267 Cr.P.C. Therefore, the framers of legislation have carefully used in the heading of the above Forms that it is an order and not warrant. May be colloquially the word warrant has been attached to the above orders and it should not have any other effect as the contents of the Forms are important to be seen and not&nbsp; &nbsp;the nomenclature. Therefore, the question of&nbsp; Jail Authorities detaining the petitioners in the&nbsp; prison&nbsp; in respect of the body warrant issued in Crime No. 20/2021 is incorrect and without authority. Lest it could be termed as illegal detention. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25. At this stage, it is submitted by the leaned SPP-II that after this Court heard the parties yesterday,&nbsp; the Jail Authorities have released the petitioners from the prison and therefore, the petition relief has become infructuous. Said submission is placed on record and for&nbsp; the academic purpose, matter is further discussed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"background-color: rgb(255, 255, 0);\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">26.&nbsp; Having said thus, the prosecution expressed few apprehensions. It is common experience that the learned trial Judges, often use the expression that “body warrant extended”. In some cases, “re-issue body warrant&nbsp;</font></span><font face=\"Calibri, sans-serif\">and judicial custody extended”. It&nbsp; is pertinent&nbsp; to&nbsp; note&nbsp; that while exercising the power under Section 267 Cr.P.C., the court before whom a person who has already in&nbsp; custody is produced before the court which has&nbsp; issued order u/s.267 Cr.PC, will not have any authority to extend the body warrant or give him to the custody in the said case. If his presence is required further, fresh order is to&nbsp; be issued. </font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>27. As could be seen from the contents of Forms supra, when once the purpose is served for a particular day/days, the order passed under Section 267 Cr.P.C., seized to exist and the accused, who has been produced before the Court or before the Investigating Agency as the case may be will have to return the accused to the judicial custody, wherein he is originally remanded by the orders&nbsp; &nbsp;of the court in the original case. Therefore, it is crystal&nbsp; clear that the learned Magistrate and the district judges as the case may be will not have the power to order for “body warrant extended/judicial custody extended” in case where an accused is produced before that court under the orders passed under Section 267 Cr.P.C., and such practice needs to be discontinued henceforth. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>28. It is the further apprehension of the&nbsp; prosecution that an accused in custody may be necessary for investigation in several other cases especially&nbsp; when&nbsp; &nbsp;the accused is a known criminal. When he is enlarged on bail in one case, apprehending the very same&nbsp; accused again in respect of other case/s would be a herculean task and therefore, the State machinery would be put to un- necessary hardship. Needless to emphasize that a suitable mechanism needs to be evolved by the Home Department to protect their interest to meet such contingency. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>29. It is to be noted that an web application is developed by NIC (National Information Centre) called ‘E- prisons’. It is always open for the Home Department to make necessary and suitable module in the said web application to track an accused, who is already in custody in one case, number of body warrants issued against him and number of cases, where he is required for investigation. All those features can be made available in the said web application whereby there would be a&nbsp; proper mechanism by which, State machinery would be made known about release of an accused in a given case. It would probably sufficient enough to safeguard the apprehension expressed by the&nbsp; prosecution&nbsp; Department. It is to be clarified at any rate, such apprehensions would not permit the Jail Authorities to detain a person who has the benefit of grant of&nbsp; bail by a duly constituted Court&nbsp; even for a minute under the pretext of body&nbsp; warrant&nbsp; issued in another case.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The Criminal Petition stands disposed of, in view of the fact that the petitioners are already released by the Jail Authorities, Tumakuru, no further orders in this petition is necessary with regard to the petition prayer. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The able assistance and co-operation rendered&nbsp; by the learned SPP-II and the Officers and Officials of the&nbsp; office of the Director General of Police, Prisons and Correctional Services and Additional Chief Secretary, Home Department, Vidhana Soudha, Bengaluru, is placed on record with appreciation not only for their co-operation but also for their prompt action in issuing the circulars referred to supra.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '41e0522b9e8a28f575d245e2ed04b94c.jpg', '120721d476c9d8d7954c8020dc31b6e2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-29', 1, '', '', '2022-03-29 18:29:59', '2022-03-29 12:08:35'),
(1487, 'yh5PJnACe7JIF2jpkewVRSAd9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Simply because the applicant participated in the selection process, it does not mean that he had acquiesced to the illegality in the selection process. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Razia K.I Vs University of Kerala and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WA 1208 of 2021 decided on 11 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A.K Jayasankaran Nambiar and Justice Mohammed Nias C.P<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The unsuccessful petitioner, who challenged the appointment of\r\nthe 4th respondent to the post of Assistant Director in the Department of\r\nPhysical Education in the University of Kerala on deputation basis,\r\npursuant to Ext.P1 notification is the appellant. The appellant as well as\r\nthe 4th respondent were interviewed on 14.12.2017 by the Selection\r\nCommittee. The 4th respondent was selected on the basis of obtaining 1.9\r\nmarks more than the writ petitioner</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioner questions the selection on the specific\r\nallegation that the academic qualification and experience of the petitioner\r\nwas ignored while selecting the 4th respondent and in spite of giving 13\r\nmarks more in the interview to the 4th respondent, there is a difference of\r\nonly 1.9 marks more to the 4th respondent which led to her selection. The\r\nexcessive award of marks in the interview according to the petitioner is a\r\nhighly arbitrary action. The prescription with regard to the research\r\npublication, paper presentation, academic experience, which ought to have\r\nbeen the main criteria for the selection going by the norms of the\r\nUniversity Grants Commission (UGC) were all overlooked in the selection\r\nprocess.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The University contended that the Selection Committee was\r\nconstituted as per the UGC guidelines and the marks were also awarded as\r\nper the same, and therefore, there is no illegality in the selection and thus\r\nprayed for dismissal of the writ petition.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The 4th respondent did not enter appearance despite service\r\nof notice in the writ petition as well as in the writ appeal.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The learned Single Judge who considered the matter\r\ndismissed the writ petition on the solitary ground that the appellant having\r\nparticipated in the selection process was estopped from challenging the\r\nselection process relying on the judgment in D.Saroja Kumari v. R.Helen\r\nThilakom and Others [(2017) 9 SCC 478]. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. We have heard the learned senior counsel Sri.George\r\nPoonthottam, assisted by Sri.A.L.Navaneeth Krishnan for the appellant and\r\nSri.Thomas Abraham, the learned standing Counsel for the respondentuniversity.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Before us, the learned senior counsel for the appellant\r\nsubmits that the reasoning of the learned Single Judge is wrong in as\r\nmuch as the challenge to the award of marks in the interview, borne out\r\nfrom Ext.P7, was not considered at all by the learned Single Judge and a\r\nmere glance of the same would have revealed the favouritism shown to the\r\n4\r\nth respondent. When the entire process was vitiated by the arbitrariness\r\nand favouritism, such selection ought to have been interfered with.\r\nDespite the appellant getting more marks under the head for the\r\nacademic records and research performance, only due to the excessive\r\nmarks for the interview awarded to the 4th respondent, she was favoured\r\nand selected.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The learned counsel for the University reiterated before us\r\nthat the selection was conducted in accordance with the UGC guidelines\r\nand no illegality can be attributed to the selection of the 4th respondent.\r\nNo counter affidavit dealing with the allegations raised in the writ petition\r\nhas been placed on record.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Having considered the rival contentions, we are of the firm\r\nview that the dismissal of the writ petition on the solitary ground of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">participating the selection process was clearly wrong and liable to be\r\ninterfered with. Simply because the appellant has participated in the\r\nselection process did not mean that the appellant had acquiesced to the\r\nillegality in the selection process. (See DR (Major) Meeta Sahai v. State\r\nof Bihar and Others [(2019) 20 SCC 17]). The petitioner essentially\r\nquestioned the award of excessive marks in the interview to the 4th\r\nrespondent, which the appellant could have been aware only after the\r\nselection of the 4th respondent and the same is the cause of action herein\r\nfor challenging the selection process. Thus the award of marks without any\r\nbasis is a matter which the appellant could have challenged and no\r\nprincipal of estoppel prevents the appellant from questioning the same.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n10. It is trite that the candidate by agreeing to participate in\r\nthe selection process only accepts the prescribed procedure and not the\r\nillegalities committed in a selection process. It is also relevant to note that\r\nit cannot be possible for a candidate to have locus to assail an illegality or\r\nan infringement of the provisions of the Constitution that happens in a\r\nselection process unless there is participation in the same.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. Coming to the merits of the case, we find on a perusal of\r\nthe marks extracted above, that the selected candidate has been given highest\r\nmarks in the interview viz., 18 out of the maximum of 20 marks. The 4th\r\nrespondent had got only 30.90 marks under the head \'academic record and\r\nresearch performance\' and 25 under the head \'domain knowledge and\r\nteaching skills\', thus totalling to 73.9 marks. The appellant was given 42\r\nmarks under the head \'academic record and research performance\' and 25 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">marks under the head \'domain knowledge and teaching skills\' and just 5\r\nmarks for \'interview\' and totalling 72 marks. It is worthy to note that the\r\nappellant had at an earlier point of time served in the very post under the\r\nUniversity on deputation and the same is evident from Ext.P4 certificate\r\ngranted by the University. Considering the marks awarded to the 4th\r\nrespondent as stated above, we hold that the award of marks under the\r\nhead \'interview\' was without any basis or rationale and which led to the\r\nwrongful selection. We do so also for the reason that no plausible\r\nexplanation is on record from the side of the University.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. The learned senior counsel for the appellant cites the\r\njudgment in Deepthy Vijayakumar v. Joint Registrar of Co.op\r\nSocieties, Thrissur and Others [2008(4) KHC 44] to argue that the facts\r\nwould reveal that the interview was conducted in such a manner to favour\r\nthe 4th respondent, the manner in marks were given under the head\r\n\'interview\' would speak for itself and favouritism is to be inferred. As we\r\nhave already held, a look at the marks awarded (extracted above) shows\r\nthat the 4th respondent was wrongly preferred over the appellant, by giving\r\nhigher marks in the interview. Such a selection cannot be upheld and the\r\naction of the University in selecting the 4th respondent is nothing but\r\nabusing the power conferred on it. We declare the appointment of the 4th\r\nrespondent to be bad for the reasoning stated above. Accordingly we set\r\naside the same.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13. We note that in several cases where the selection\r\nprocess is challenged, which is not infrequent, on account of the delay in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">adjudicating the merits of the same, it becomes impossible to grant any\r\nworthwhile relief by the time the matter is taken up for final hearing and in\r\nmany cases the beneficiary of a wrong selection profit from such delays. A\r\nLitigant should not only get justice but it has to be timely as well which is\r\nrequired for the continued confidence of the citizenry in the justice delivery\r\nsystem. Delivering justice has a connection with the time consumed in\r\nrendering justice. When at the appropriate moment the justice is not\r\nrendered what we are administer then is no longer full justice, it may even\r\nbe injustice. Prompt justice is true justice.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">14. In the light of what is stated above, while setting aside\r\nthe selection of the 4th respondent, we also direct that the petitioner be\r\nappointed forthwith as the Assistant Director in the Department of Physical\r\nEducation consequent to Ext.P1 selection process till a regular appointment\r\nto the post of Assistant Director in the Department of Physical Education,\r\nwhich we are told is underway, is completed. The appellant will be allowed\r\nto function as Assistant Director in the Department of Physical Education\r\ntill the new incumbent joins duty after the proposed selection for a regular\r\nappointment. We trust this direction will offer some solace to the appellant\r\nwho had to wait for almost four years to get this relief and can enjoy the\r\nfruits of the litigation only for a few days considering that there is a fresh\r\nselection process underway for a regular appointment as Assistant Director\r\nin the Department of Physical Education. Although, we are not happy with\r\nthe selection process carried out by the University resulting in the 4th\r\nrespondent becoming the beneficiary of an illegal selection, we refrain from\r\nimposing any costs on the University or from directing the 4th respondent to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">disgorge the benefits obtained by him.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>The writ appeal is allowed as above.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f1cecda83b63fff10c1a4e3e6ce8c9f6.jpeg', '3c16c810d7a42f3e4812d4034d017fb6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-28', 1, '', '', '2022-03-28 17:26:48', '2022-03-28 13:03:12'),
(1488, 'QYheoXotj1LMaLxqT9iHlbm6v', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Principle of locus standi is alien to criminal jurisprudence.  Wife can file private complaint in respect of injury caused to her husband rendering him immovable. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Smitha Thankachan Vs The State of Kerala and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WP(CRL) 89 of 2022 decided on 27 January 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Haripal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Aggrieved by an order of the Judicial Magistrate of First\r\nClass-II, Aluva in returning the complaint instituted under Section\r\n190 of the Cr.P.C., the petitioner has moved this Court under\r\nArticle 226 of the Constitution of India</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Petitioner is the wife of the injured in a road traffic\r\naccident. It is alleged that on 16.10.2021, petitioner\'s husband-&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Thankachan, a carpenter by avocation, sustained injuries while\r\nproceeding to the place of work travelling on the pillion seat of the\r\nmotor cycle bearing Registration No.KL-32/Q-0114 ridden by the\r\naccused, through Elamakkara-Puthukkalavattom Road; in front of\r\nSkyline Apartments, due to the rash and negligent riding as to\r\nendanger human life, since he had abruptly twisted, the vehicle\r\ncapsized and her husband fell down and sustained grievous\r\ninjuries. He was immediately rushed to the MAJ Hospital,\r\nEdappally. Ext.P1 indicates that Thankachan was taken there at\r\n9.20 am on 16.10.2021 with the alleged history of road traffic\r\naccident. Ext.P2 discharge summary indicates that on the same\r\nday, he was taken to the Department of Orthopaedics and\r\nRehabilitation, Lisie hospital where he was admitted with the\r\nhistory of pain and swelling on left ankle following alleged history\r\nof road traffic accident. Diagnosis was fracture trimalleolar left&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ankle for which he underwent surgery on 19.10.2021 and was\r\ndischarged on 21.10.2021. The grievance of the petitioner is that\r\ndespite Ext.P1 intimation given by the CMO, MAJ Hospital to the\r\nSub Inspector, Elamakkara Police Station, crime was not\r\nregistered. It is alleged that on 11.11.2021, petitioner lodged a\r\ncomplaint before the City Police Commissioner, Ernakulam which\r\nalso was not acted upon and thus, on 19.1.2022, she approached\r\nthe Judicial First Class Magistrate-II, Aluva. It is specifically\r\naverred that after sustaining grievous injuries, her husband is in\r\nimmobile stage and is under complete rest and thus, she\r\napproached the court alleging offences under Sections 279, 337\r\nand 338 IPC. But astonishingly enough, the complaint was\r\nreturned stating that \'the petition was filed by the wife of the\r\ncomplainant\'&nbsp;</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>It is clear that the signed order was passed by the Magistrate. It is\r\npointed out that the Magistrate has returned the complaint on the\r\npremise that it was filed by the wife of the complainant which is\r\nillegal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. .....It is the settled proposition of law that\r\ncriminal law can be set in motion by any person. Here, on the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ground that after sustaining grievous hurt, her husband is unable to\r\nmove out and hence, she has taken initiative to prefer the\r\ncomplaint. The principle of locus standi is alien to criminal\r\njurisprudence.&nbsp;</span></b></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>In this connection, it is appropriate to extract the\r\nfollowing principles from the oft quoted decision in A. R.Antulay vs\r\nRamdas Sriniwas Nayak And Another [AIR 1984 SC 718].</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. More disturbing is the Court acting upon office notes\r\nput up by the ministerial staff. This Court takes strong exception\r\nto such a conduct. In judicial matters, the staff members cannot\r\nmake any note or suggestion. The learned Magistrate has not\r\napplied his mind before returning the complaint. The reason stated\r\nis illegal. The order is quashed and the Magistrate is directed to\r\nentertain the complaint and pass orders, in accordance with law,\r\nwithin a period of seven days from today.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Writ Petition (Crl) is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3ad12f9cc86d23b969c5561b0e7bb080.jpeg', 'c7cc7ca883e9611603913ecfa8fae9da.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-28', 1, '', '', '2022-03-28 18:00:02', '2022-03-28 13:25:57'),
(1489, '1QSSxxTEuZLlfLerxDLXPTt2u', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Power of attorney executed outside India. Notarisation in foreign country can be given legal recognition by Indian courts even though there is no reciprocal arrangement with that country. Madras High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Elizabeth Rajan vs The Inspector General of Registration and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.A. 856 of 2021 decided on 2 February 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Pushpa Sathyanarayan and Justice Krishnan Ramasamy. &nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The interesting question that arises for consideration in this appeal\r\nis, whether a Power of Attorney executed outside India is in compliance\r\nwith Section 14 of the Indian Notaries Act, 1952 and its authentication.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. When the question as to whether the entry of the sale deed\r\ndated 18.02.2005 registered as Doc.No. 894 of 2015 should be removed,\r\ncame up for consideration, the learned Single Judge dismissed the writ\r\npetition even at the admission stage itself holding that such a relief could\r\nnot be granted in exercise of the jurisdiction under Article 226 of the\r\nConstitution of India and the writ petitioner filed the instant appeal\r\nquestioning the said order.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. To determine the validity of the execution of a Power of\r\nAttorney outside India, in this case Malaysia, the relevant provision of\r\nlaw that need to be referred is Section 14 of the Notaries Act, 1952,</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Any Power of Attorney executed outside India needs\r\nauthentication under Indian laws. It is a requirement that Power of\r\nAttorney has to be executed in the presence of certain designated\r\nofficers. India is a signatory to the Convention on Abolishing the\r\nRequirement of Legislation for Foreign Public Documents (in short \"the\r\nConvention\") and based on this treaty India is bound to recognize a\r\nnotarial act performed in any of the other signatory country.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Section 14 of the Notaries Act deals with the reciprocal\r\nrecognition of the acts done by foreign notaries. If the Central\r\nGovernment is satisfied that by the law or practice of any country or\r\nplace outside India, the notarial acts done by Notaries within India are\r\nrecognized for all or any limited purpose of that country or place, the\r\nCentral Government may, by notification in the official gazette, declare\r\nthat the notarial acts lawfully done by Notaries within such country or\r\nplace shall be recognized within India for all purposes or for limited\r\npurposes as may be specified in the notification. It was argued that since\r\nthere is no such notification of the Central Government in the official\r\nGazette, this Court cannot grant recognition to the Notarial acts done by\r\nNotary public of Malaysia.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. Section 139 of the Code of Civil Procedure designates the\r\npersons by whom oath on affidavit has to be administered. The Code of\r\nCivil Procedure (Amendment) Act, 1976, included the following : \"(aa)\r\nany notary appointed under the Notaries Act, 1952;\" and the objects and\r\nreasons for such amendment was that \"Notaries\" have power to\r\nadminister oath under the Notaries Act, 1952. In the absence of\r\nstatutory provision, Courts refused to accept affidavits sworn before the\r\nnotaries. Section 139 is being amended to include a specific provision\r\npermitting the swearing of affidavits before notaries</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. In the light of the above discussion, it is clear that once the\r\noriginal document is produced purporting to be a Power of Attorney\r\nexecuted and attested as stated in Section 85 of the Evidence Act, the\r\ncourt has to presume that it was so executed and authenticated. The\r\nprovision is mandatory and it is open to the court to presume that all the\r\nnecessary requirement for the proper execution of Power of Attorney\r\nhave been duly fulfilled.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">24. Now coming to the Registration Act, 1908, Section 32(c) of\r\nthe said Act states that every document should be registered under the\r\nsaid Act and the same shall be presented at the proper registration\r\noffice. The object of Section 32 of the Registration Act is to prevent some\r\noutsider from presenting the document for registration with which he has\r\nno concern and in which he has no interest. This section applies for\r\nregistration of Power of Attorney. However, it has no application if the\r\nPower of Attorney is produced merely for authentication in which case\r\nthe only requirement that has to be complied with are those that are set\r\nout in Section 33 of the Registration Act. The applicability of Section 32&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">would arise only when presented for registration and not when it is\r\nmerely produced for authentication. Section 33(c) of the Registration Act,\r\n1908, recognized the Power of Attorney for the purpose of Section 32.\r\nSo, the above provisions in the Registration Act are clear as to who are\r\nthe persons to present the document for registration and the Power of\r\nAttorney recognizable for the purpose of Section 32 of the Registration\r\nAct, 1908.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. Section 31 of the Specific Relief Act, 1963 provides for\r\ncancellation of instruments</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. The above section lays down that any person against whom a\r\nwritten instrument is void or voidable may file a suit to have it adjudged\r\nvoid or voidable and the discretion of the court is not arbitrary but it\r\nshould be on sound reasons and guided by the judicial principles. Though\r\nthe above provision enables the appellant to institute a suit before the\r\njurisdictional Civil Court, being aware of the fact that the suit would be\r\nbarred by limitation, the appellant has sought to invoke the jurisdiction\r\nunder Article 226 of the Constitution of India.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. The writ court also relied on the decision of the Hon\'ble&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Supreme Court reported in CCE v. Dunlop India Ltd., (1985) 1 SCC\r\n260</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>31. The above discussion would go to show that it is a vexatious\r\nlitigation filed by the appellant, as neither any reason was furnished for&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not going before the Civil Court nor explanation was given for the delay\r\nand laches. In such circumstances, it is too much to say that the court\r\nhas to give indulgence to the appellant, who is guilty of delay and laches.\r\nIn the light of the above, we do not find any error or infirmity in the\r\norder of the learned single judge and it needs to be confirmed.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>32. Accordingly, the writ appeal is dismissed. However, there\r\nshall be no order as to costs.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f7dbbe95858e29daa270b797dcef8884.jpeg', '50198991f285e60c617b30adddeb473f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-28', 1, '', '', '2022-03-28 18:29:54', '2022-03-28 15:30:39');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1492, '4aFjD5esEczZ1oKhP2QaXZJ21', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When power to give relief is conferred on Courts, it becomes the duty of the Courts to give such relief. Court would fail in its duty if relief is refused without adequate reason. Supreme Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vishal Ashwin Patel Vs Assistant Commissioner of Income Tax and Others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2200 of 2022 decided on 28 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R Shah and Justice B.V Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"background-color: rgb(255, 255, 0);\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">2.1. The manner in which the High Court has dealt with and disposed of the writ petitions without passing any reasoned order is not appreciated by this Court.When a number of issues/grounds were raised in the writ petitions, it was the duty cast upon the court to deal with the same and thereafter, to pass a reasoned order. When the Constitution confers on the High Courts the power to&nbsp;</font></span><font face=\"Calibri, sans-serif\">give relief it becomes the duty of the Courts to give such relief in appropriate cases and the Courts would be failing to perform their duty if relief is refused without adequate reasons.</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.2. The High Court in exercise of powers under Article 226 of the Constitution of India was required to have independently considered whether the question of reopening of the assessment could be raised in a writ petition and if so, whether it was justified or not.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">2.3. While emphasising the necessity to pass a reasoned order, in the case of Central Board of Trustees Vs.Indore Composite Private Limited, (2018)&nbsp; 8 SCC 443, it is observed and held by this Court that the courts need to pass a reasoned order in every case which must contain the narration of the bare facts of the case of the parties to the lis, the issues arising in the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings on all the issues arising in the case and urged by the learned counsel for the parties in support of its conclusion.</font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">It is further observed in the said decision that an order bereft of reasoning causes prejudice to the parties because it deprives them to know the reasons as to why one party has won and other has lost.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.4. In the recent decision in the case of Union Public Service Commission Vs. Bibhu Prasad Sarangi and Ors., (2021) 4 SCC 516, while emphasising the reasons to be given by the High Court while exercising powers under Article 226 of the Constitution of India, it is observed and held by this Court&nbsp; that the reasons constitute the soul of judicial decision and how Judges communicate in their judgment is a defining characteristic of judicial process since quality of justice brings legitimacy to the judiciary. It is further observed that though statistics of disposal of cases is important of higher value is&nbsp; the intrinsic content of judgment. It is further observed that in exercise of powers under Article 226 the courts require to independently consider the issues involved.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. Applying the law laid by this Court in the aforesaid decisions to the facts of the case on hand and the manner in which the High Court has disposed of the writ petitions, in the interest of sobriety, we may only note that the orders are bereft of reasoning as diverse grounds were urged/raised by the&nbsp; parties which ought to have been examined by the High Court in the first place and a clear finding was required to be recorded upon analysing the relevant documents.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '66b4ba41b301d890361c2de472e67dcb.jpeg', '0aab77446d9a63d42c5507ed81cc2999.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-29', 1, '', '', '2022-03-29 17:47:40', '2022-03-29 15:10:57'),
(1490, 'F2vWBpAh04CVZD47NeSQQwJVJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'West Bengal Land Reforms Act. Pre-emption under Section 8 is applicable even to the lands forming part of non-agricultural tenancy coming within the purview of the Act. Calcutta High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Partha Sarathi Bhattacharyya and others Vs Jiaur Rahaman and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>C.O. 3502 of 2014 decided on 23 December 2015.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Shivakanth Prasad.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The judgment dated 31st May, 2014 passed by the Additional District\r\nJudge, 2nd Court, Raiganj, Uttar Dinajpur in Misc. Appeal No. 4 of 2012\r\nthereby setting aside the order dated 31.1.2012 passed in Misc. Case No. 74\r\nof 2002 by the Civil Judge, Junior Division, Raigunj, Uttar Dinajpur is under\r\nchallenge in this application</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Moot issue which arises for consideration in the present application\r\nunder the scheme of Article 227 of Constitution of India is whether an\r\napplication for preemption under Section 8(1) of West Bengal Land Reforms\r\nAct (hereinafter referred to as the Act) is maintainable in case of land which\r\nis by nature ‘Bastu’.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner filed Misc. case No. 74 of 2002 under Section 8 of the\r\nAct before the learned Civil Judge, Junior Division, Raiganj, Uttar Dinajpur\r\non the grounds inter alia that petitioner shares a common boundary with the\r\nsuit property and as contiguous holder of the common boundary he has a\r\nright of preemption of the suit property.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>He alleged that the opposite parties namely, Pankoj Mukhopadhya,\r\nTapas Kumar Chanda and Debasis De had purchased the suit property by\r\nway of a Registered Deed from Chandan Kumar Das without informing the\r\npetitioner.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">T</span><span style=\"font-size: 12pt;\">he opposite parties entered appearance before the learned Court and\r\ncontested the preemption case by filing written objection and contended inter\r\nalia that the suit property in Dag No. 1130 consists of 23 decimals of land as\r\nmentioned in RSROR being No. 1120 has been recorded in the name of\r\nMukunda Chandra Das. The said Mukunda Chandra Das was issueless out\r\nof his first wedlock and thereafter he married for the 2nd time and 11\r\nchildren were born out of their wedlock. Prafulla Kumar Das, son of\r\nMukunda Chandra Das was the father of Chandan Kumar Das, Aloke Kumar\r\nDas, Pradip Kumar Das, Sujit Kumar Das and Biswajit Das and therefore,\r\nthe legal heirs of Prafulla Kumar Das viz., his five sons and one wife together\r\npossessed 1/11 out of 23 decimals of land by way of succession and by way\r\nof purchase from co-sharers named Bijoy Kumar Das, Saibya Rani Das,\r\nDipu Gupta, Ashis Kumar Das, Sadhan Kumar Das. The said 5 sons of\r\nPrafulla Kumar Das namely, Chandan Kumar Das, Aloke Kumar Das, Pradip\r\nKumar Das, Sujit Kumar Das and Biswajit Das sold 2.60 decimals of land to\r\nthe petitioner by way of 5 registered deeds in the year 1985 and thereafter\r\nsold 4.95 decimals of land to Nehar Sarkar in the West and at last sold 5.85 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">decimals of land of Misc. Case No. 74 of 2002. Thus, the above mentioned\r\nvendors do not have any other land in the suit property. The opposite parties\r\nbeing defendants in Misc. Case No. 74 of 2002 further contended that\r\nPrafulla Kumar Das was suffering from kidney disease for a long time his\r\nbrothers in need of approximately Rs. 5 lakhs offered the petitioner to\r\npurchase the suit property to which the petitioner did not accept the offer.\r\nSo, the opposite parties sold the suit property to one Nihar Sarkar who being\r\nanother co-sharer, shares a common boundary in the suit property and\r\nspecifically contended that the suit property as recorded in the RSROR is\r\n‘Bastu’ and the application for preemption is not maintainable. Accordingly,\r\nthe opposite parties prayed for dismissal of the said case. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The opposite parties on being aggrieved by and dissatisfied with the\r\norder of preemption preferred Misc. Appeal No. 4 of 2012 before the learned\r\nDistrict Judge and on being transferred to the learned Additional District\r\nJudge, 2nd Court, Raiganj, Uttar Dinajpur, appeal was heard and learned\r\nAppeal Court set aside the order of preemption dated 31.1.2012 with\r\nobservation that the RSROR being finally published carries presumptive\r\nvalue as to correctness of record unless rebutted which shows that the suit\r\nproperty in question is by nature ‘Bastu’ by placing reliance on the citations\r\nviz. (2007)3 WBLR Cal. 93 and (2012) 3 WBLR, Cal. 309 and allowed Misc.\r\nAppeal by the impugned order dated 31st May, 2014 which is under\r\nchallenge before this Court.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>It is contended by the learned Counsel for the petitioner that the\r\nschedule property at Raiganj, Uttar Dinajpur do not fall within the excluded\r\narea in terms of Section 1(2) of the West Bengal Land Reforms Act, 1955 and\r\nin view of amended definition of land, provisions of Section 8 of the West\r\nBengal Land Reforms Act, 1955 claiming preemption is maintainable.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>It is further submitted that it cannot be held that the preemption\r\nunder Section 8 of the Act is not maintainable if the land is by nature\r\n‘Bastu’.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>It would be apt to reproduce the relevant Sections relating to\r\ndefinition of land, homestead and extent of application of the West Bengal\r\nLand Reforms Act, 1955 Section 2(7) reads as under—</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“land” means land used for the purpose of livestock breeding,\r\npoultry farming, dairy or land comprised in tea garden, mill, factory\r\nworkshop, orchard, hat, bazaar, ferries, tolls or land having any\r\nother sairati interests and any other land together with all interests,\r\nand benefits arising out of land and things attached to the earth or\r\npermanently fastened to anything attached to earth;\r\nExplanation.- “Homestead” shall have the same meaning as in the\r\nWest Bengal Estates Acquisition Act, 1953 (West Bengal Act 1 of\r\n1954).”</i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Therefore, pre-emption under Section 8 of the Act is applicable to the\r\nland of every description including lands forming part of non-agricultural\r\ntenancy which came within the purview of the said Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The judgment of 1997 (2) CHN 20 (Prafulla Kumar Maity vs. Amal\r\nKrishna Misra and Others) did not consider the provisions of Section 1(2) of\r\nthe West Bengal Land Reforms Act, 1955 but paragraphs 11, 12, 13, 14 of\r\nthe cited decision is relevant for the purpose of deciding as to whether preemption is available in respect of ‘Bastu’ land.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In a judgment in 2004 (2) CLJ (Cal) 273 (Swapan Kumar Kar and\r\nother Vs. Salil Kumar Dey and others) it was held by the learned Single\r\nJudge in the case of a land covered under the provisions of Urban Land\r\n(Ceiling and Regulations) Act, 1976 that there will be no question of preemption of said land under Section 8(1) of the West Bengal Land Reforms\r\nAct, 1955 and claim of pre-emption under Section 8(1) of the West Bengal\r\nLand Reforms Act, 1955 is not applicable.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The case of Paschim Banga Bhumijibi Krishak Samity and others vs.\r\nState of West Bengal and others reported in 1996 (2) CHN 212 was taken\r\nnote of and in paragraph 42 of the said judgment it is clearly indicated that\r\nthe provisions of West Bengal Land Reforms Act, 1955 have no manner of\r\napplication in respect of matters covered by Urban Land Ceiling Act but the\r\nsaid Act will have application to agricultural land situated within the said\r\narea.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In a judgment reported in 2007 (3) WBLR (Cal) 93 (Punit Singh Vs. Sri\r\nGour @ Gobinda Chandra Das and Others) it was observed that pre-emption\r\nis not maintainable in case of Bastu land.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\nIn the said judgment the provisions of Urban Land (Ceiling and\r\nRegulations) Act, 1976 was taken note of but the provisions of the West\r\nBengal Land Reforms Act, 1955 was not taken into consideration and in\r\npara 15 of the judgment it would be found that the learned Single Judge\r\nobserved that the property under reference does not come within the scope\r\nand ambit of Section 8 of the West Bengal Land Reforms Act, 1955 and as\r\nsuch there could be no order of pre-emption.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In case of Sri Ramala Chowdhury and Another Vs. Sri Suman Ghosh\r\nreported in 2010 (1) CLJ (Cal) 556 it was observed that the provision relating\r\nto preemption under the West Bengal Land Reforms Act, 1955 is applicable\r\nin respect of a transfer of an urban vacant land within the Howrah\r\nMunicipality and such observation had been given in paragraph 18 of\r\njudgment reported in 2010 (1) CLJ (Cal) 556 (Sri Ramal Chowdhury and\r\nAnother vs. Sri Suman Ghosh). In paragraph 16 of the cited judgment it has\r\nbeen observed that there is no specific provision in Urban Land (Ceiling and\r\nRegulations) Act, 1976 wherein it was provided that the laws relating to\r\npreemption under Sections 8, 9 and 10 of the West Bengal Land Reforms\r\nAct, 1955 will not be applicable in case of a transfer of any urban vacant\r\nland within the urban agglomeration. In para 16 of the judgment reported in\r\n2010(1) CLJ (Cal) 556 it was observed that the decision taken by two\r\ndifferent Single Judges of this Hon’ble Court reported in 2004(2) CLJ 273\r\nand 2007(3) WBLR (Cal) 93 (Punit Singh Vs. Sri Gour @ Gobinda Chanda\r\nDas and Others) do not lay down any law with binding effect and both the\r\ndecisions have been held to be per in curium.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>It is contended on behalf of the opposite parties that the property\r\nunder reference cannot come within the scope and meaning of Section 8 of\r\nthe Act and there could be no application for preemption in respect of ‘Bastu’\r\nland. It is submitted that in Paschimbanga Bhumijibi Krishak Samity –vs.-\r\nState of West Bengal (Supra) it has been observed that the question of\r\ndefinition of land is academic in as much as the question which has to be\r\nimposed and answered in the said appeal predominantly is as to whether the\r\nState Legislature had legislative competence to enact the impugned\r\namending acts, if they had the legislative competency, the question as to\r\nwhether non-agricultural land and other lands can be included within the\r\npurview of WBLR Act would be a futile exercise. In terms of Item 18 of the\r\nlist 2 of the 7th Schedule of the Constitution of India there cannot be any\r\ndoubt that the State has the legislative competency to make any legislation\r\nboth in respect of agriculture as also non agricultural land.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>At this juncture it is necessary to consider another Act, namely Urban\r\nLand(Ceiling & Regulation) Act, 1976 as it is an admitted position that the\r\nprovision of the said Act would have some repercussion as regards\r\nconstruction of the said Act. Urban Land Ceiling Act was enacted to provide\r\nfor exemption of ceiling on vacant land in urban agglomerations, for\r\nacquisition of such land in excess of the said limit to construction of building\r\non such land and for matter connected thereunder with a view to prevent the\r\nconcentration of Urban Land in the hands of a few person and speculations\r\nand profiteering therein and with a view to bringing about an equitable\r\ndistribution of land in a urban agglomeration to subserve the common good.\r\nThe Urban Land (Ceiling & Regulation) Act is also protected under Article\r\n31A, 31B and 31C of the Constitution of India.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Bestowing upon an anxious consideration to the rival submissions of\r\nthe parties, I find that the definition of the land having undergone a\r\nrevolutionary change and land of every description having now come to the\r\npurview of the Act, the distinction so long made between agricultural and\r\nnon-agricultural land for the purpose of granting relief under Section 8 and\r\ndenying such relief to a raiyat holding non-agricultural land has now been\r\nwiped out, therefore, Section 8 would be now attracted in respect of land of\r\nevery description in as much as, the change in the definition of land in\r\nSection 2(7) of the Act, non-agricultural land also comes within the purview\r\nof the West Bengal Land Reforms Act, then no such occasion would now\r\narise for a raiyat holding non-agricultural land to apply under Section 24 of\r\nthe West Bengal Non-Agricultural Tenancy Act for the purpose of preemption and application for pre-emption under Section 8 of the Act would be\r\nmaintainable in respect of a land in the nature of ‘Bastu’.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>However, there shall be no order as to costs.</b></p>', 'd6716caabcb100b96be178609cd67fd9.jpeg', 'd81ce548d1d7bf0b2cab9073e4d40471.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-29', 1, '', '', '2022-03-28 19:13:14', '2022-03-29 17:57:42'),
(1491, 'sAyM4Z0gSZBHp1gnLA863cRSy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Test.. Ceiling Act 1960, S.27- Distribution of ceiling surplus land seen as an instrument of land reforms aimed at creation of an egalitarian rural society', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Meghai and another Vs State of U.P and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ-C 32914 of 2008 decided on 8 January 2020.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Y.K Srivastava</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Challenge&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;present&nbsp; &nbsp;petition&nbsp; &nbsp;is&nbsp; &nbsp;to&nbsp; &nbsp;an&nbsp; &nbsp;order&nbsp; &nbsp;dated 02.06.2008&nbsp; &nbsp;passed&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; &nbsp;Additional&nbsp; Commissioner (Adminstration)&nbsp; Vindhyachal Mandal, Mirzapur in Case No. 12/333 of 2007 (Ghurau Vs. Meghai) in proceedings under Section 27 (4) of the U.P. Imposition of Ceiling On Land Holdings Act, 19601 , whereby the lease granted in favour of the petitioners has been cancelled and the land in question has been directed to be reverted to the State Government.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Contention of the learned counsel for the petitioners is that the lease had been granted to the petitioners after completion of the requisite procedural formalities and that the order impugned has been passed without giving proper opportunity to the petitioners and as such the same is legally unsustainable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">4. Per&nbsp; &nbsp;contra, learned Additional Chief Standing Counsel appearing for the State respondents has supported the order passed by the Additional Commissioner by stating that the petitioners did not belong to the category of persons eligible for allotment of the ceiling surplus land&nbsp; and accordingly the&nbsp;</font></span><font face=\"Calibri, sans-serif\">proceedings for cancellation of allotment were rightly initiated. Placing reliance upon the order­ sheet of the case, acopy whereof has been annexed as annexure CA­1 to the counter affidavit filed by the State respondents, it is submitted that the order has been passed after due notice and opportunity to the petitioners and as such the same cannot be said to be arbitrary and illegal. It has also been pointed out that the land in question being not vacant at the relevant point of time the same could not have been allotted to the petitioners.</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. In order to appreciate the rival contentions the relevant statutory provisions may be adverted to. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The disposal and settlement of land declared surplus in proceedings under the Ceiling Act is provided for under Chapter IV thereof.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. In terms of sub­section (3) of Section 27 of the Ceiling Act the land remaining surplus after providing for the use thereof for community purposes by way of settlement with the Gaon Sabha in terms of sub­section (1) and for use for other public purposes&nbsp;in accordance with Section 25, is to be settled by the Collector in accordance with the order of preference and subject to the limits specified respectively in sub­sections (1) and (3) of Section 198 of the U.P.Zamindari Abolition and Land Reforms Act, 1950.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. A conjoint reading of the aforementioned statutory provisions indicates that any land which remains surplus after making provisions for settlement of land with the Gaon Sabha under sub­section(1) of Section 27 and permitting the use thereof for other public purposes under Section 25, is to be settled by the Collector in accordance with the order of preference and subject to the limits specified respectively in subsections (1) and (3) of Section 198 of the 1950 Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. The order of preference provided under sub­section (1) of Section&nbsp; &nbsp;198&nbsp; &nbsp;provides&nbsp; &nbsp;for&nbsp; &nbsp;allotment&nbsp; &nbsp;in&nbsp; &nbsp;favour&nbsp; &nbsp;of&nbsp; &nbsp;landless agricultural labourers of the specified categories in the order of preference prescribed under clause (c) thereof.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. Section 195 provides for admission of land other than land being in any of the classes mentioned in Section 132 where:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a) the land is vacant land;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b) the land is vested in the Gaon Sabha under Section 117; or</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(c) the land has come into the possession of Land Management Committee under Section 194 or under any other provisions of the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. Sub­section (4) of Section 27 of the Ceiling Act provides that the Commissioner may of his own motion and shall on the application of any aggrieved person enquire into such settlement and if he is satisfied that the settlement is irregular he may after notice to the person in whose favour such settlement is made to show&nbsp; &nbsp;cause&nbsp; &nbsp;cancel&nbsp; &nbsp;the&nbsp; &nbsp;settlement&nbsp; &nbsp;and&nbsp; &nbsp;the&nbsp; &nbsp;lease&nbsp; &nbsp;and&nbsp; &nbsp;as&nbsp; &nbsp;a consequence&nbsp; &nbsp;thereof&nbsp; &nbsp;the&nbsp; &nbsp;land&nbsp; &nbsp;shall&nbsp; &nbsp;revert&nbsp; &nbsp;to&nbsp; &nbsp;the&nbsp; &nbsp;State Government. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. The U.P. Imposition of Ceiling on Land Holdings Act, 1960 was promulgated as an Act to provide for imposition of ceiling on land holdings in the State of Uttar Pradesh and certain other matters connected therewith. The enactment having been made in the interests of the community with the object to ensure a more equitable distribution of land and to provide land for the landless agricultural labourers to ensure increased agricultural production and for other public purposes as best to subserve the common good, the provisions of the Act have to be read in a manner&nbsp; &nbsp;so&nbsp; &nbsp;as&nbsp; &nbsp;to&nbsp; &nbsp;subserve&nbsp; &nbsp;the&nbsp; &nbsp;intent&nbsp; &nbsp;and&nbsp; &nbsp;purpose&nbsp; &nbsp;of&nbsp; &nbsp;the enactment. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. Land being pivotal to both income and employment around which socio­economic privileges and deprivations revolve the distribution of ceiling surplus land is seen as an instrument of land reforms aimed at creation of an egalitarian rural society. The enactment has been included in the Ninth Schedule of the Constitution of India so as to ensure speedy and unhindered implementation of the various legislative measures.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. Imposition of ceiling and distribution of ceiling surplus land&nbsp; being therefore primarily concerned with the distributive aspect&nbsp; of&nbsp; land reforms&nbsp; aimed at reducing&nbsp; ineqalities&nbsp; of land owner­ship the allotment of ceiling surplus land is to be made in a manner to subserve the objects and purposes of the enactment so that the distribution of land is made to the real beneficiaries. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17. It is beyond question the duty of courts, in construing statutes to give effect to the intent of the law making power and to seek for that&nbsp; intent in every way. The object and interpretation of construction of statutes is to ascertain the meaning of the legislature and to ensure that the provisions are interpreted so as to subserve that intent. There is a general presumption&nbsp; that&nbsp; an&nbsp; enactment&nbsp; has to&nbsp; &nbsp;be&nbsp; given&nbsp; a purposive construction with a construction that best gives effect to the purpose of the enactment. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. Reference may be had to the judgment in R (on the application of Quintavalle) Vs. Secretary of State for Health, for the proposition that in construing an enactment effort should be made to give effect to the legislative purpose.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. The Court\'s function, in view of the foregoing discussion, would thus be to construe the words used in an enactment, so far as possible, in a way which best gives effect to the purpose of the enactment.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22. In the instant case the order passed by the Additional Commissioner has specifically recorded that the petitioners were not eligible for grant of lease inasmuch as they did not belong to the class of landless agricultural labourers they could not have been admitted to the land as per the order of preference in&nbsp;accordance with the provisions contained under Section 195 read with Section 198 of the 1950 Act and&nbsp; as&nbsp; such the settlement of the surplus land under sub­section (3) of Section 27 was irregular. It has further been recorded that the land in question being already in occupation of landless agricultural labourers belonging to scheduled castes, the land could not be said to be vacant and the same could not have been allotted to the petitioners.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23. The principal contention which is sought to be raised on behalf of the petitioners is that the order has been passed without notice and opportunity to the petitioners also does not inspire confidence inasmuch as the order­ sheet of the case which is on record as part of the counter affidavit filed by the State respondents clearly shows that the order impugned has been passed after due notice and opportunity to the petitioners. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24. Counsel or the petitioners has not been able to demonstrate from the records that the petitioners belong to the eligible criteria so as to be entitled for allotment of the ceiling surplus land.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 25. No other ground has been urged. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26. No material error or irregularity has been pointed out in the order impugned so as to warrant interference. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>27. The writ petition lacks merit and is accordingly dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fa7037d3454149ec8d810c19e0cbc6ea.jpeg', '950fa20a872a6245f08ecb08858fdff5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-28', 0, '', '', '2022-03-28 20:36:59', '2022-03-28 10:07:04');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1495, 'soWI6GhIe7OyEvdQXIUPUKGNo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque bounce case. Petition under Section 482 Cr.P.C. to quash proceedings is maintainable even at the stage of framing charges if the Company is not made an accused. Chhattisgarh High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Charanjeet Singh Saini Vs M/s. Ispat India.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRMP 1645 of 2019 decided on 21 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Goutham Bhaduri.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Different complaints were filed by the respondents under Section 138 of\r\nNegotiable Instrument Act as the cheques issued by the petitioners on\r\nbehalf of M/s. Saini Industries Limited were dishonoured for want of fund in\r\nthe account. Thereafter, the statutory notice having been served, the\r\nrepayment of the amount was not made, consequently different complaints\r\nunder Section 138 of Negotiable Instruments Act were filed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The facts show that initially after filing of the complaint, objections were\r\nraised by the petitioners by filing interlocutory applications about\r\nmaintainability of the petition. The same having been dismissed, revision\r\nwas preferred and the Sessions Judge dismissed the revision by holding\r\nthat the Directors cannot be absolved of their criminal liability, despite the\r\nfact the company has not been arrayed as an accused. Having aggrieved\r\nby the said order, the present petitions.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The legal question which arises for consideration that whether the\r\ncomplaint under Section 138 of Negotiable Instruments Act without\r\narraigning the company as an accused would be maintainable?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Mr. K. Rohan, learned counsel for the petitioners contended in the memo of\r\ncomplaint the petitioners were described as either Directors of Saini\r\nIndustries Limited or on behalf of the Saini Industries. Therefore, the\r\ncompany having not been made an accused, the complaint only against the\r\nDirector would not lie. Learned counsel for the petitioners would submit that\r\nthe respondents herein are very well in know of the fact that the cheques\r\nwere issued by petitioners as directors of company, which is evident from\r\ncopy of the cheques itself. He would submit that the cheques were issued\r\nby the petitioners in the capacity of the Director of the Company M/s. Saini\r\nIndustries. Admittedly, Saini Industries being not arrayed as a party before\r\nthe Trial Court, in a result, in view of the law laid down in case of Aneeta\r\nHada v. Godfather Travels & Tours (P) Ltd. (2012) 5 SCC 661, the\r\nprosecution of the like nature would not lie. He placed his reliance in (2020)\r\n10 SCC 751, (2019) 3 SCC 797, (2018) (13) SCC 663, (2012) 5 SCC 661\r\nand lastly (2009) 6 SCC 729 and would submit that no specific averments\r\nhave been made that what role the petitioners have played on behalf of the\r\ncompany as an authorised signatory. Therefore, if the company is not made\r\na party as accused, the prosecution itself would not be maintainable.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Per contra, learned counsel for the respondents would submit that there is\r\nno dispute about the legal proposition, however, the petitioners were the\r\nDirectors of the company or not, it is a matter of evidence and no inference\r\ncan be drawn on this date. The reference was made to the Criminal Appeal\r\nNos.403-405 of 2019 and (2020) 3 SCC 794 and would submit that when\r\nthere is a disputed question arises for adjudication, the petition under\r\nSection 482 would not be maintainable. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The copy of the complaint filed by the respondents shows the description of\r\nthe parties in CRMP Nos.1643/2019, 625/2020, 1644/2019 & 1645/2019,\r\nthey have been shown on behalf of Saini Industries. In CRMP No.625/2020\r\nthe certified copy of the cheque bears Saini Industries Limited and signed\r\nby the Director. So the copy of the complaint would clearly demonstrate the\r\nfact that different cheques were issued on behalf of Saini Industries Limited.\r\nAdmittedly, the company has not been arrayed as an accused.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Dealing with similar issue wherein only directors of company is made the\r\naccused, leaving the company, the complaint under Section 138 of\r\nNegotiable Instruments Act would not lie. In recent judgment in case of\r\nHindustan Unilever Ltd. v. State of Madhya Pradesh (2020) 10 SCC\r\n751, at para 23 the Court held the person who is in charge of and\r\nresponsible to the company for the conduct of business would be guilty of\r\nthe offence. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Likewise in case of Himanshu v. B.Shivamurthy & Another (2019) 3 SCC\r\n797, the Supreme Court held that commission of offence by the company is\r\nan express condition precedent to attract the vicarious liability of others and\r\nthe word “as well as the company” makes it clear when the company can\r\nbe prosecuted, then only the persons mentioned in the other categories\r\ncould be vicariously liable for the offence subject to the averments in the\r\npetition and proof thereof that the company is a juristic person.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. In case of Aneeta Hada v. Godfather Travels & Tours Private Limited\r\n(2012) 5 SCC 661, the Supreme Court held that in order to maintain a\r\nprosecution against the Director, the company would be a necessary party.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. The Supreme Court further in case of Ramraj Singh v. State of M.P.\r\n(2009) 6 SCC 729 held that to launch a prosecution against the alleged Directors there must be a specific allegation in the complaint as to the part\r\nplayed by them in the transaction. It held that there should be clear and\r\nunambiguous allegation as to how that the Directors are incharge and\r\nresponsible for the conduct of the business of the company. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Now referring back to the allegations and averments made in the complaint\r\nunder Section 138 of Negotiable Instrument Act, though the petitioners\r\nhave been described somewhere in the petition as Director in some petition\r\nfor and on behalf of Saini Industries Limited would make it clear that the\r\nrespondents were in know of the fact that with whom they are dealing. The\r\ncopy of the cheques which are produced in few of the cases would also\r\nshow that the cheques were issued on behalf of the company not in the\r\nindividual capacity of the petitioners. Consequently, in the complaint when\r\nthe company has not been arrayed as accused, the prosecution simplicitor\r\nagainst the Director without making specific averments about the role\r\nplayed by them would not be maintainable.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\" style=\"background-color: rgb(255, 255, 0);\"><b>14. The petitions have been filed at the stage of framing of charges. Whether it\r\nwould be maintainable ? In order to arrive at an answer to the query, the\r\ncomplaint and the orders summoning the accused is examined. Admittedly,\r\nthe company was not made an accused in the cases expect the Directors,\r\ntherefore, applying the law laid down by the Supreme Court as cited supra,\r\nit appears that while summoning the accused, the Magistrate has failed to\r\nsee the principles of law and in turn when the objection was made, the\r\nlearned Sessions Judge also failed to take into account the principles laid\r\ndown by the Supreme Court. Therefore, applying the principles as has been\r\ndecided in case of Pepsi Foods Limited & Anr. v. Special Judicial\r\nMagistrate (1998) 5 SCC 749, which mandates that the Magistrate has to\r\ncarefully scrutinize the evidence brought on record and cannot be a silent\r\nspectator at the time of recording of preliminary evidence, the petition under. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 482 would be maintainable for the reason that both the Courts\r\nbelow have failed to take into account.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>15. In the result, the present petitions are allowed. The impugned orders\r\npassed in the following criminal revisions as also the criminal proceedings,\r\ninitiated against the respective petitioners, pending in the Court of J.M.F.C.\r\nRaipur, are hereby quashed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'de070d6d8b8ffa047b37b10d831167c1.jpeg', '1a40ec720a450e0e2d2e9d2705563da0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-29', 1, '', '', '2022-03-29 20:27:17', '2022-03-29 11:52:36'),
(1496, 'j2nfU3OEgW7HrpKB6NAqsS2xE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Trademark Infringement: Delhi High Court restrains \'Club Factory\' website from selling Louis Vuitton products on its portal. Orders blockage of the website  www.clubfactory.com', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Louis Vuitton Malletier Vs Futuretimes Technology India Private Limited and Others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CS(Comm) 222/2020 and I.A 3002 of 2022 decided on 24 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Prathiba M. Singh</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. This is an application filed by the advocates for the Defendants\r\nseeking discharge. It is submitted by Ms. Sucheta Roy, ld. Counsel that\r\ninitially instructions were received from the Defendants who were running\r\nthe website www.clubfactory.com. However, ld. Counsel submits that after\r\nthe pandemic, the said website originating from China was banned by the\r\nGovernment of India and thereafter, they have stopped getting instructions\r\nfrom the Defendant.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The case of the Plaintiff herein is that the Defendants are indulging in\r\nsale of unauthorized products having Plaintiff’s marks on www.clubfactory.com thereby violating Plaintiff’s rights in Louis Vuitton\r\nmark and various other device marks. It is submitted by Mr. Pravin Anand,\r\nld. Counsel, that the Defendant was running a large scale portal where sales\r\nhave been made of the infringing products. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The Defendants have stopped appearing in the matter after having\r\ncontested the matter for several hearings. Accordingly, the following\r\ndirections are issued:\r\ni. Ld. counsel for the Defendants shall provide the Ld. Counsel for the\r\nPlaintiff the following particulars:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>a) The email address of the Defendants with whom\r\ncorrespondence was taking place.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>b) The names and other relevant information that the ld. Counsel\r\nfor the Defendant might have of the individuals who were giving\r\ninstructions to the ld. counsels including their mobile numbers.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>c) Details of any bank account of the Defendants from where legal\r\nfees may have been received by the ld. counsel for the Defendants.\r\nii. Subject to above particulars being provided to ld. Counsel for the\r\nPlaintiff within two weeks, ld. counsels for Defendants are discharged.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">6. On the first date i.e., 3rd July, 2020 an undertaking was given by the\r\nDefendants that upon being notified, the URLs on which the infringing\r\nproducts are hoisted would be removed. It was submitted that this policy of\r\nthe Defendants was in conformity with the Information Technology Act,\r\n2000. However, it is submitted by Ld. Counsel for the Plaintiff that despite\r\nthe said order being passed, the Plaintiff had realized that the URLs being\r\nnotified by the Plaintiff to the Defendants were being merely masked/hidden\r\nand they continued to remain on the website of the Defendant. The\r\nDefendants have now stopped appearing in the matter and their website is\r\nalso stated to have been suspended by the Department of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Telecommunications (DoT) and Ministry of Electronic and Information\r\nTechnology (MeiTY). </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. Accordingly, having seen the products being made available on the\r\nDefendants portal despite the undertaking given to the Court which clearly\r\ncontain the use of the various device and word marks of the Plaintiff, a\r\npermanent injunction restraining the Defendants from, in any manner,\r\nmanufacturing, selling, offering for sale directly or indirectly any goods\r\nincluding face masks etc., bearing the following registered marks of Louis\r\nVuitton on its portal www.clubfactory.com or any other portal run by the\r\nDefendants is granted</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Insofar as the relief of damages is concerned, Plaintiff shall file its\r\naffidavit in evidence within four weeks.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. The DoT and MeiTY are directed to issue instructions to all ISPs to\r\nblock the website www.clubfactory.com so that the same is also not\r\naccessible through VPN or other platforms.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ab42a015cb8e41118f5f715c14074f1b.png', 'cb7aeaabc5352678d36f0bae55c19b85.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-30', 1, '', '', '2022-03-29 20:51:09', '2022-03-30 20:58:00'),
(1497, 'vmyTPlnAs5x8GLf5ayEyEkSJ8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for specific performance. Plaintiff should be permitted to implead purchasers subsequent to agreement of sale since they may be adversely affected by the outcome of the suit. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin-bottom: 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><span style=\"background-color: rgb(255, 255, 0);\"><b><i style=\"\"><span style=\"font-size: 10pt; font-family: Verdana, sans-serif;\">Robin Ramjibhai Patel v.\r\nAnandibai Rama</span></i><span style=\"font-size: 10pt; font-family: Verdana, sans-serif;\">, (2018) 15 SCC 614 </span></b></span><span style=\"font-weight: bold; font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\">1.</span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"> Heard the parties. Leave granted. The appellant is the plaintiff\r\nwho instituted Special Suit No. 57 of 2012 before the learned Civil Judge,\r\nSenior Division, Raigad at Panvel for the specific performance of an agreement\r\nfor sale of certain land bearing Plot No. 44. As per agreement dated 9-3-2011,\r\nRespondent 1 is the vendor. From the facts available on record, it appears that\r\nRespondent 1 sold the property allegedly in violation of the agreement, in\r\nfavour of Respondents 6, 7 and 8 on 3-10-2011. The appellant-plaintiff filed\r\nthe aforesaid suit on 2-2-2012 and obtained an order of a status quo on\r\n29-2-2012. Thereafter as per the plaintiff\'s case Respondents 6 to 8 created\r\ninterest of third parties in the same property through registered agreements in\r\nthe month of April 2012. The appellant as plaintiff made an application to the\r\ntrial court to implead the proposed purchasers having registered agreement of\r\nsale in their favour as defendant. This application was rejected by the trial\r\ncourt and that order was challenged before the High Court but without success\r\nas appears from the order under appeal dated 19-8-2014 passed by the High Court\r\nof Judicature at Bombay in <i>Robin Ramjibhai Patel</i> v. <i>Anandibai\r\nRama</i> [<i>Robin Ramjibhai Patel</i> v. <i>Anandibai Rama</i>,\r\n2014 SCC OnLine Bom 4821] .<o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\">2.</span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"> The learned counsel for the appellant submits that when there was\r\nan order of status quo by the trial court, Respondents 6 to 8 clearly acted\r\ncontrary to such order by entering into subsequent agreement for sale of the\r\nsuit property in favour of ten persons and in such circumstances prayer to\r\nimplead such ten persons should have been allowed when the prayer was made by\r\nthe appellant-plaintiff who is dominus litus. He placed reliance upon a\r\njudgment by three-Judge Bench of this Court in <i>Kasturi</i> v. <i>Iyyamperumal</i> [<i>Kasturi</i> v. <i>Iyyamperumal</i>,\r\n(2005) 6 SCC 733] .<o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\">3.</span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"> In reply the learned counsel for Respondents 6 to 8 submitted that\r\nas per allegations made by the appellant these respondents have only entered\r\ninto registered agreement of sale and therefore no rights have yet been created\r\nin favour of the alleged subsequent purchasers in the ten flats on the suit\r\nproperty. The learned counsel has relied heavily upon a judgment by a Division\r\nBench of this Court in <i>Ramesh Chandra Pattnaik</i> v. <i>Pushpendra\r\nKumari</i> [<i>Ramesh Chandra Pattnaik</i> v. <i>Pushpendra\r\nKumari</i>, (2008) 10 SCC 708] to submit that the persons sought to be\r\nimpleaded are not at all necessary parties.<o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\">4.</span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"> First we shall consider the judgment in <i>Ramesh Chandra\r\nPattnaik case</i> [<i>Ramesh Chandra Pattnaik</i> v. <i>Pushpendra\r\nKumari</i>, (2008) 10 SCC 708] . In that case, the appellant-plaintiff who had\r\nfiled the suit for specific performance of an agreement of sale and had also\r\nsought permanent injunction to restrain the proposed vendors from interfering\r\nwith the possession, had resisted the claim of a subsequent purchaser seeking\r\nimpleadment under Order 1 Rule 10 of the Code of Civil Procedure, 1908 (in\r\nshort “CPC”). Inspite of such opposition, the prayer for impleadment was\r\nallowed and the High Court [<i>Ramesh Chandra Pattnaik</i> v. <i>Pushpendra\r\nKumari</i>, WP No. 12194 of 2003, order dated 14-7-2006 (Ori)] did not\r\ninterfere. Then the plaintiff moved this Court and the appeal by leave was\r\nallowed by setting aside the orders and dismissing the application for\r\nimpleadment. In such factual scenario, the court clearly accepted the privilege\r\nof the plaintiff as to what shall be the scope of the suit and who should be\r\nallowed to intervene as defendant. With respect to claim of the subsequent\r\nagreement of sale to Respondent 10, the Court observed in para 6 of <i>Ramesh\r\nChandra Pattnaik case</i> [<i>Ramesh Chandra Pattnaik</i> v. <i>Pushpendra\r\nKumari</i>, (2008) 10 SCC 708] as under: (SCC p. 709)<o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"><b>“<i>6</i>. Respondent 10 is alleged to have entered into an agreement\r\nwith Respondent 1 on 15-11-1984 for sale of the property, which is the\r\nsubject-matter of the suit filed by the petitioner. In respect of such an\r\nagreement, Respondent 10, could have filed a suit for specific performance but,\r\nas stated by the learned counsel appearing for the parties, no such suit has\r\nbeen filed. In our opinion Respondent 10 was not at all a necessary party for\r\ndetermination of the genuineness or otherwise of the agreement of sale which is\r\nsaid to have been entered into between the petitioner and Respondent 1.”<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\">5.</span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"> In our considered view Respondent 10 in that case could not have a\r\nbetter claim than his proposed vendors who were already defendants and hence\r\nwhen opposed by the plaintiff, the prayer for impleadment at the instance of\r\nsuch subsequent purchaser was rightly rejected by this Court by observing that\r\nsuch a subsequent agreement-holder could have filed a suit for a specific\r\nperformance if he had any such rights.<o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\">6.</span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"> Coming to the judgment in <i>Kasturi case</i> [<i>Kasturi</i> v. <i>Iyyamperumal</i>,\r\n(2005) 6 SCC 733] , it is notable that the suit for specific performance of\r\ncontract for sale was filed by the appellant against Respondents 2 and 3. In\r\nthe said suit Respondents 1 & 4 to 11, who were not parties to the contract\r\nand had set up a claim of independent title and possession over the contracted\r\nproperty, filed an application to get themselves added in the suit as defendants.\r\nThe trial court allowed the application on the ground that such respondents had\r\ndirect interest in the subject-matter of the suit and hence their presence\r\nwould be necessary to decide the controversies raised in the suit. The High\r\nCourt confirmed [<i>Kasthuri</i> v. <i>Iyyamperumal</i>, 2002 SCC\r\nOnLine Mad 680 : (2003) 2 LW 547] the said order and then the plaintiff came to\r\nthis Court as appellant and their prayer was allowed by this Court. This Court\r\ntook a clear view in para 21 in the following terms: (<i>Kasturi case</i> [<i>Kasturi</i> v. <i>Iyyamperumal</i>,\r\n(2005) 6 SCC 733] , SCC pp. 744-45)<o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"><b>“<i>21</i>. It may be reiterated here that if the appellant who has\r\nfiled the instant suit for specific performance of contract for sale even after\r\nreceiving the notice of claim of title and possession by Respondents 1 and 4 to\r\n11 does not want to join Respondents 1 and 4 to 11 in the pending suit, it is\r\nalways done at the risk of the appellant because he cannot be forced to join\r\nRespondents 1 and 4 to 11 as party-defendants in such suit. In <i>Ramesh\r\nHirachand Kundanmal</i> v. <i>Municipal Corpn. of Greater Bombay</i> [<i>Ramesh\r\nHirachand Kundanmal</i> v. <i>Municipal Corpn. of Greater Bombay</i>,\r\n(1992) 2 SCC 524] on the question of jurisdiction this Court has clearly laid\r\ndown that it is always open to the court to interfere with an order allowing an\r\napplication for addition of parties when it is found that the courts below had\r\ngone wrong in concluding that the persons sought to be added in the suit were\r\nnecessary or proper parties to be added as defendants in the suit instituted by\r\nthe appellant-plaintiff. In that case also this Court interfered with the\r\norders of the courts below and rejected the application for addition of\r\nparties. Such being the position, it can no longer be said that this Court\r\ncannot set aside the impugned orders of the courts below on the ground that\r\njurisdiction to invoke power under Order 1 Rule 10 CPC has already been\r\nexercised by the two courts below in favour of Respondents 1 and 4 to 11.”<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\">7.</span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"> As it appears from the aforesaid paragraph this Court accepted the\r\nstatus of dominus litus of the plaintiff and proceeded to hold that if the\r\nplaintiff did not want to join the rival claimants as defendant in the pending\r\nsuit, the risk was totally of the plaintiff and he cannot be forced to join\r\nthem as party-defendant.<o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\">8.</span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"> In the aforesaid context, this Court also considered the\r\nprovisions of Order 1 Rule 10 CPC and in para 7 it expressed its view that the\r\nrelevant provisions show that the necessary parties in a suit for specific\r\nperformance of a contract for sale are not only parties to the contract or\r\ntheir legal representatives but also a person who had purchased the contracted\r\nproperty from the vendor. It was further elaborated that: (<i>Kasturi case</i> [<i>Kasturi</i> v. <i>Iyyamperumal</i>,\r\n(2005) 6 SCC 733] , SCC p. 738, para 7)<o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"><b>“<i>7</i>. … In equity as well as in law, the contract constitutes\r\nrights and also regulates the liabilities of the parties. A purchaser is a\r\nnecessary party as he would be affected if he had purchased with or without\r\nnotice of the contract, but a person who claims adversely to the claim of a\r\nvendor is, however, not a necessary party. From the above, it is now clear that\r\ntwo tests are to be satisfied for determining the question who is a necessary\r\nparty.”<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\">9.</span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"> In our considered opinion, the judgment of the three-Judge Bench\r\nin <i>Kasturi case</i> [<i>Kasturi</i> v. <i>Iyyamperumal</i>,\r\n(2005) 6 SCC 733] recognises this special status of a plaintiff which is well\r\nsettled by several earlier judgments also and when the plaintiff wants to\r\nimplead certain persons as defendants on the ground that they may be adversely\r\naffected by the outcome of the suit, then interest of justice also requires\r\nallowing such a prayer for impleadment so that the persons likely to be\r\naffected are aware of the proceedings and may take appropriate defence as\r\nsuited to their vendors.<o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\">10.</span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"> In view of the aforesaid discussion, we have no hesitation in\r\nsetting aside the orders of the trial court as well as the High Court [<i>Robin\r\nRamjibhai Patel</i> v. <i>Anandibai Rama</i>, 2014 SCC OnLine Bom\r\n4821] refusing the impleadment. As prayed by the appellant the applications for\r\nimpleadment and for amendment are allowed. Resultantly the appeal is also\r\nallowed. In the facts and circumstances of the case, there shall be no order as\r\nto costs.<o:p></o:p></span></b></p><p>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n</p><p class=\"MsoNormal\"><o:p><b> </b></o:p></p>', 'a5206a7a6fcfe5ec228d162a7d0fa49f.jpg', 'c1ca99cc96963fe2c941b6a135ec4800.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-30', 1, '', '', '2022-03-30 03:46:08', '2022-03-30 19:05:14');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1498, 'OantsvCoZotTeE1QmxLNcxJXx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for specific performance. Plaintiff being dominus litis cannot be forced to add subsequent purchaser to the suit as defendant when he does not want implead at his risk. Supreme Court. ', '<div class=\"Section1\" style=\"text-align: justify; margin-top: 2em; font-size: 12pt; font-family: \"Open Sans\"; text-rendering: optimizelegibility; text-size-adjust: 100%; line-height: 24px; -webkit-font-smoothing: antialiased;\"><b><span style=\"font-size: 13px; font-family: Verdana;\"><i style=\"\">Gurmit Singh Bhatia v. Kiran Kant Robinson</i>, (2020) 13 SCC 773 : 2019 SCC OnLine SC 912</span><span style=\"font-size: 13px; font-family: Verdana;\"> at page 775<br></span><span style=\"text-indent: 18pt; font-size: 12pt;\">Feeling aggrieved and dissatisfied with the impugned judgment and order dated 3-7-2013 passed in </span><i style=\"text-indent: 18pt; font-size: 12pt;\">Satya Dev Pandey</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> v. </span><i style=\"text-indent: 18pt; font-size: 12pt;\">Kiran Kant Robinson</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> [</span><i style=\"text-indent: 18pt; font-size: 12pt;\">Satya Dev Pandey</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> v. </span><i style=\"text-indent: 18pt; font-size: 12pt;\">Kiran Kant Robinson</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> Writ Petition No. 856 of 2012, order dated 3-7-2013 (Chh)] and order dated 5-8-2013 passed in </span><i style=\"text-indent: 18pt; font-size: 12pt;\">Gurmit Singh Bhatia</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> v. </span><i style=\"text-indent: 18pt; font-size: 12pt;\">Satya Dev Pandey</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> [</span><i style=\"text-indent: 18pt; font-size: 12pt;\">Gurmit Singh Bhatia</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> v. </span><i style=\"text-indent: 18pt; font-size: 12pt;\">Satya Dev Pandey</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> Review Petition No. 169 of 2013, order dated 5-8-2013 (Chh)] by the High Court of Chhattisgarh at Bilaspur, by which the High Court has allowed the said writ petition preferred by the original plaintiffs and has quashed and set aside the order passed by the learned trial court allowing the application preferred by the appellant herein for impleading him as a necessary party to the suit filed by Respondents 2 and 3 herein — the original plaintiffs, the original applicant, the appellant has preferred the present appeals.<br></span><span style=\"text-indent: 18pt; font-size: 12pt;\">2.</span><span style=\"text-indent: 18pt; font-size: 12pt;\"> The facts of the case leading to these appeals in a nutshell are as follows: Respondents 2 and 3 herein — the original plaintiffs filed a suit against Respondent 1 herein original Defendant 1 for specific performance of the agreement to sell/contract dated 3-5-2005 executed by Respondent 1 original Defendant 1 in the Court of the learned 4th Additional District Judge, Bilaspur. That during the pendency of the aforesaid suit and despite the injunction against Respondent 1 herein original Defendant 1, original owner not to alienate or transfer the suit property, Respondent 1 herein original Defendant 1 executed a sale deed in favour of the appellant herein vide sale deed dated 10-7-2008. The appellant herein purchaser who purchased the suit property during the pendency of the suit filed an application in the pending suit under Order 1 Rule 10 CPC for impleadment as a defendant in the suit. It was the case on behalf of the appellant herein that he has purchased the suit property and is a necessary and proper party to the suit as he has a direct interest in the suit property. That by an order dated 5-11-2012, the learned trial court allowed the said application and directed the original plaintiffs to join the appellant as a defendant in the suit.<br></span><span style=\"text-indent: 18pt; font-size: 12pt;\">4.2.</span><span style=\"text-indent: 18pt; font-size: 12pt;\"> Insofar as the reliance placed upon the decision of this Court in </span><i style=\"text-indent: 18pt; font-size: 12pt;\">Robin Ramjibhai Patel</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> [</span><i style=\"text-indent: 18pt; font-size: 12pt;\">Robin Ramjibhai Patel</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> v. </span><i style=\"text-indent: 18pt; font-size: 12pt;\">Anandibai Rama</i><span style=\"text-indent: 18pt; font-size: 12pt;\">, (2018) 15 SCC 614 : (2019) 1 SCC (Civ) 272] as well as the decision of the Bombay High Court in </span><i style=\"text-indent: 18pt; font-size: 12pt;\">Shri Swastik Developers</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> [</span><i style=\"text-indent: 18pt; font-size: 12pt;\">Shri Swastik Developers</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> v. </span><i style=\"text-indent: 18pt; font-size: 12pt;\">Saket Kumar Jain</i><span style=\"text-indent: 18pt; font-size: 12pt;\">, 2013 SCC OnLine Bom 897 : (2014) 2 Mah LJ 968] by the learned Senior Advocate appearing on behalf of the appellant, it is vehemently submitted by Shri M. Shoeb Alam, learned advocate appearing on behalf of the original plaintiffs that the said decisions shall not be applicable to the facts of the case on hand. It is submitted that in the aforesaid two cases, it was an application by the original plaintiff to implead the subsequent purchaser who purchased the property during the pendency of the suits. It is submitted that as held by this Court in </span><i style=\"text-indent: 18pt; font-size: 12pt;\">Kasturi</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> [</span><i style=\"text-indent: 18pt; font-size: 12pt;\">Kasturi</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> v. </span><i style=\"text-indent: 18pt; font-size: 12pt;\">Iyyamperumal</i><span style=\"text-indent: 18pt; font-size: 12pt;\">, (2005) 6 SCC 733] , it is for the plaintiff/plaintiffs to implead a particular person/persons as defendant/defendants and if he/they does not/do not join then it will be at the risk of the plaintiff/plaintiffs. It is further submitted that the plaintiff cannot be forced to implead any other person, more particularly who is not a party to the contract, against the wish of the plaintiff. It is submitted that therefore the aforesaid two decisions, upon which reliance has been placed by the learned Senior Advocate appearing on behalf of the appellant, shall not be applicable to the facts of the case on hand. It is submitted that as such the decision of this Court in </span><i style=\"text-indent: 18pt; font-size: 12pt;\">Kasturi</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> [</span><i style=\"text-indent: 18pt; font-size: 12pt;\">Kasturi</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> v. </span><i style=\"text-indent: 18pt; font-size: 12pt;\">Iyyamperumal</i><span style=\"text-indent: 18pt; font-size: 12pt;\">, (2005) 6 SCC 733] clinches the issue and shall be squarely applicable to the facts of the case on hand.<br></span><span style=\"text-indent: 18pt; font-size: 12pt;\">5.1.</span><span style=\"text-indent: 18pt; font-size: 12pt;\"> At the outset, it is required to be noted that the original plaintiffs filed the suit against the original owner — vendor — original Defendant 1 for specific performance of the agreement to sell with respect to suit property dated 3-5-2005. It is an admitted position that so far as agreement to sell dated 3-5-2005 of which the specific performance is sought, the appellant is not a party to the said agreement to sell. It appears that during the pendency of the aforesaid suit and though there was an injunction against the original owner — vendor restraining him from transferring and alienating the suit property, the vendor executed the sale deed in favour of the appellant by sale deed dated 10-7-2008. After a period of approximately four years, the appellant filed an application before the learned trial court under Order 1 Rule 10 CPC for his impleadment as a defendant. The appellant claimed the right on the basis of the said sale deed as well as the agreement to sell dated 31-3-2003 alleged to have been executed by the original vendor. The said application was opposed by the original plaintiffs. The learned trial court despite the opposition by the original plaintiffs allowed the said application which has been set aside by the High Court by the impugned judgment and order [</span><i style=\"text-indent: 18pt; font-size: 12pt;\">Satya Dev Pandey</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> v. </span><i style=\"text-indent: 18pt; font-size: 12pt;\">Kiran Kant Robinson</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> Writ Petition No. 856 of 2012, order dated 3-7-2013 (Chh)] . Thus, it was an application under Order 1 Rule 10 CPC by a third party to the agreement to sell between the original plaintiffs and original Defendant 1 (vendor) and the said application for impleadment is/was opposed by the original plaintiffs. Therefore, the short question which is posed for consideration before this Court is, whether the plaintiffs can be compelled to implead a person in the suit for specific performance, against his wish and more particularly with respect to a person against whom no relief has been claimed by him?<br></span><span style=\"text-indent: 18pt; font-size: 12pt;\">5.2.</span><span style=\"text-indent: 18pt; font-size: 12pt;\"> An identical question came to be considered before this Court in </span><i style=\"text-indent: 18pt; font-size: 12pt;\">Kasturi</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> [</span><i style=\"text-indent: 18pt; font-size: 12pt;\">Kasturi</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> v. </span><i style=\"text-indent: 18pt; font-size: 12pt;\">Iyyamperumal</i><span style=\"text-indent: 18pt; font-size: 12pt;\">, (2005) 6 SCC 733] and applying the principle that the plaintiff is the dominus litis, in the similar facts and circumstances of the case, this Court observed and held that the question of jurisdiction of the court to invoke Order 1 Rule 10 CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct and legal interest in the controversy involved in the suit. It is further observed and held by this Court that two tests are to be satisfied for determining the question as to who is a necessary party. The tests are: (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party. It is further observed and held that in a suit for specific performance the first test that can be formulated is, to determine whether a party is a necessary party there must be a right to the same relief against the party claiming to be a necessary party, relating to the same subject-matter involved in the proceedings for specific performance of contract to sell. It is further observed and held by this Court that in a suit for specific performance of the contract, a proper party is a party whose presence is necessary to adjudicate the controversy involved in the suit. It is further observed and held that the parties claiming an independent title and possession adverse to the title of the vendor and not on the basis of the contract, are not proper parties and if such party is impleaded in the suit, the scope of the suit for specific performance shall be enlarged to a suit for title and possession, which is impermissible. It is further observed and held that a third party or a stranger cannot be added in a suit for specific performance, merely in order to find out who is in possession of the contracted property or to avoid multiplicity of the suits. It is further observed and held by this Court that a third party or a stranger to a contract cannot be added so as to convert a suit of one character into a suit of different character.<br></span><span style=\"text-indent: 18pt; font-size: 12pt;\">5.4.</span><span style=\"text-indent: 18pt; font-size: 12pt;\"> In the aforesaid decision in </span><i style=\"text-indent: 18pt; font-size: 12pt;\">Kasturi</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> [</span><i style=\"text-indent: 18pt; font-size: 12pt;\">Kasturi</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> v. </span><i style=\"text-indent: 18pt; font-size: 12pt;\">Iyyamperumal</i><span style=\"text-indent: 18pt; font-size: 12pt;\">, (2005) 6 SCC 733] , it was contended on behalf of the third parties that they are in possession of the suit property on the basis of their independent title to the same and as the plaintiff had also claimed the relief of possession in the plaint and the issue with regard to possession is common to the parties including the third parties, and therefore, the same can be settled in the suit itself. It was further submitted on behalf of the third parties that to avoid the multiplicity of the suits, it would be appropriate to join them as party defendants. This Court did not accept the aforesaid submission by observing that merely in order to find out who is in possession of the contracted property, a third party or a stranger to the contract cannot be added in a suit for specific performance of the contract to sell because they are not necessary parties as there was no semblance of right to some relief against the party to the contract. It is further observed and held that in a suit for specific performance of the contract to sell the lis between the vendor and the persons in whose favour agreement to sell is executed shall only be gone into and it is also not open to the Court to decide whether any other parties have acquired any title and possession of the contracted property.<br></span><span style=\"text-indent: 18pt; font-size: 12pt;\">5.6.</span><span style=\"text-indent: 18pt; font-size: 12pt;\"> Therefore, considering the decision of this Court in </span><i style=\"text-indent: 18pt; font-size: 12pt;\">Kasturi</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> [</span><i style=\"text-indent: 18pt; font-size: 12pt;\">Kasturi</i><span style=\"text-indent: 18pt; font-size: 12pt;\"> v. </span><i style=\"text-indent: 18pt; font-size: 12pt;\">Iyyamperumal</i><span style=\"text-indent: 18pt; font-size: 12pt;\">, (2005) 6 SCC 733] , the appellant cannot be impleaded as a defendant in the suit filed by the original plaintiffs for specific performance of the contract between the original plaintiffs and original Defendant 1 and in a suit for specific performance of the contract to which the appellant is not a party and that too against the wish of the plaintiffs. The plaintiffs cannot be forced to add party against whom he does not want to fight. If he does so, in that case, it will be at the risk of the plaintiffs.</span></b></div>', '44108d6c49f535207925fd9aeef6e85c.jpg', '459483b69b7d55ead3846fd2c66745a9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-30', 1, '', '', '2022-03-30 04:03:42', '2022-03-30 05:35:23'),
(1499, 'H6XaIdJOYTkkcACDMgpLqtuZe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land acquisition proceedings under 1894 Act continued under 2013 Act. Exclusion of period covered by interim order to pass award applies even to \'No Coercive Action\' orders of Courts. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Delhi Development Authority Vs Rajan Sood and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1927 of 2022 decided on 29 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 30.08.2016 passed by the High Court of Delhi at  New Delhi in Writ Petition (C) No.1034/2015, by which the High Court has allowed the said writ petition preferred by the private respondents herein –original writ petitioners and has declared that the acquisition proceedings initiated under the Land Acquisition Act, 1894 (hereinafter referred to as the Act 1894) in respect of the subject lands are deemed to have lapsed under sub­-section (2) of section 24 of the Right to Fair Compensation and Transparency in Land Acquisition,Rehabilitation and Resettlement Act,2013 (hereinafter referred to as the Act, 2013), Delhi Development Authority (DDA) and Government of NCT of Delhi have preferred the present appeals.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. By the impugned judgment and order the High Court has held and declared that the land acquisition proceedings in respect of the land in question are deemed to have lapsed under sub-­section (2) of section 24 of the Act, 2013. While holding and declaring so the High Court has relied upon decision   of   this   Court   in   the   case   of  Pune   Municipal Corporation  (supra). However, the said decision of this Court has been subsequently overruled by the decision of this Court in the case of Indore Development Authority (supra). In paragraph 365 to 366, this Court in the case of Indore Development Authority (supra) has observed and held as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“365. Resultantly,   the   decision   rendered   in Pune Municipal   Corpn. [Pune   Municipal Corpn. v. Harakchand Misirimal Solanki, (2014) 3 SCC 183 : (2014) 2 SCC (Civ) 274] is hereby overruled and all   other   decisions   in   which Pune   Municipal Corpn. [Pune Municipal Corpn. v. Harakchand Misirimal Solanki, (2014) 3 SCC 183 : (2014) 2 SCC (Civ) 274] has been followed, are also overruled. The decision in Sree   Balaji   Nagar   Residential   Assn. [Sree   Balaji Nagar Residential Assn. v. State of T.N., (2015) 3 SCC 353 : (2015) 2 SCC (Civ) 298] cannot be said to be laying down good law, is overruled and other decisions following   the   same   are   also   overruled.   In Indore Development  Authority v. Shailendra [Indore Development Authority v. Shailendra, (2018) 3 SCC 412 : (2018) 2 SCC (Civ) 426] , the aspect with respect to the proviso to Section 24(2) and whether “or” has to be read   as   “nor”   or   as   “and”   was   not   placed   for consideration.   Therefore,   that   decision   too   cannot prevail, in the light of the discussion in the present judgment.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>366. In view of the aforesaid discussion, we answer the questions as under:</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>366.1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1­1 ­2014, the date of commencement of the 2013 Act, there is no lapse of proceedings. Compensation   has   to   be   determined under the provisions of the 2013 Act.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>366.2. In case the award has been passed within the window   period   of   five   years   excluding   the   period covered   by   an   interim  order   of   the   court,   then proceedings shall continue as provided under Section 24(1)(b) of the 2013 Act under the 1894 Act as if it has not been repealed.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>366.3. The word “or” used in Section 24(2) between possession and compensation has to be read as “nor” or   as   “and”.   The   deemed  lapse   of   land   acquisition proceedings under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession   of   land   has   not   been   taken   nor compensation has been paid. In other words, in case possession   has   been   taken,   compensation   has   not been   paid   then   there   is   no   lapse.   Similarly,   if compensation has been paid, possession has not been taken then there is no lapse.<br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>366.4. The   expression   “paid”   in   the   main   part   of Section   24(2)   of   the   2013   Act   does   not   include   a deposit of compensation in court. The consequence of non­deposit is provided in the proviso to Section 24(2) in   case   it   has   not   been   deposited   with   respect   to majority   of   landholdings   then   all   beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the 1894 Act shall be entitled   to   compensation   in   accordance   with   the provisions   of   the   2013   Act.   In   case   the   obligation under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non­deposit of compensation (in   court)   does   not   result   in   the   lapse   of   land acquisition proceedings. In case of non­deposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the “landowners” as on the date of notification for land acquisition under Section 4 of the 1894 Act.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">366.5. In   case   a   person   has   been   tendered   the compensation as provided under Section 31(1) of the 1894   Act,   it   is   not   open   to   him   to   claim   that acquisition has lapsed under Section 24(2) due to nonpayment or non­deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher   compensation,   cannot   claim   that   the acquisition   proceedings   had   lapsed   under   Section 24(2) of the 2013 Act.</span><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>366.6. The proviso to Section 24(2) of the 2013 Act is to   be   treated   as   part   of   Section   24(2),   not   part   of Section 24(1)(b).</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>366.7. The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2). </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>366.8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession   and   pay   compensation   for   five   years   or more   before   the   2013   Act   came   into   force,   in   a proceeding   for   land   acquisition   pending   with   the authority  concerned   as  on   1­1­2014.   The   period   of subsistence of interim orders passed by court has to be excluded in the computation of five years. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>366.9. Section 24(2) of the 2013 Act does not give rise to   new   cause   of   action   to   question   the   legality   of concluded proceedings of land acquisition. Section 24 applies   to   a   proceeding   pending   on   the   date   of enforcement of the 2013 Act i.e. 1­1­2014. It does not revive   stale   and   time­barred   claims   and   does   not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen   proceedings   or   mode   of   deposit   of compensation   in   the   treasury   instead   of   court   to invalidate acquisition.”<br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. The High Court while passing the impugned judgment and order has observed that the possession of the land in question continued with the original writ petitioners and that the compensation was neither paid nor even tendered to the original writ petitioners. However, by holding that the original writ petitioners have continued to remain in possession, the High Court has relied upon the earlier order   dated   09.11.2011 passed in writ petition No.7714/2011, by which the High Court directed   the authority to consider their application under section 48 of the Act, 1894 on merits. However, it was the specific case on behalf of the authority before the learned Single Judge that the possession of the land in question was already taken over on 23.09.1986 and even the compensation amount of Rs.2.00 crores which was  deposited with the land and building department.</b></font><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>7.1. It is the case on behalf of the original writ petitioners that a purported letter dated 23.09.1986 allegedly taking symbolic possession was never disclosed by appellants in the proceedings conducted before the High Court on two separate occasions and the same has been filed for the first time in the present proceedings. The aforesaid is not correct. Even in the impugned order itself in paragraph 2, the High Court has noted the submissions on behalf of the appellants to the effect that the possession was taken over on 23.09.1986. Therefore, it cannot be said such a plea is taken for the first time before this Court. It is the case on behalf of the  original writ petitioners, relying upon the earlier order passed by the High Court dated 09.11.2011  in writ petition No.7714/2011 that, the original writ petitioners continue to be in possession and the actual possession has never been taken over. However, it is required to be noted that even in the order dated 09.11.2011, there was no specific finding given by the High Court that the original writ petitioners are in possession of the land in question. On the contrary, it is observed that the authority to consider the application under section 48 of the Act, 1894 on merits on  the assumption of the possession being with the original writ petitioners. Therefore, while passing the order dated 09.11.2011 also, the High Court assumed the original writ petitioners are in possession hence as such no specific finding was given to the effect that the original writ petitioners are in possession.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>7.2. It is next contented on behalf of the original writ petitioners that the alleged possession on 23.09.1986 is illegal and it was a paper   possession. However, it is submitted on behalf of the appellants that possession of land in question was taken over by drawing  the punchnama which can be said to be sufficient compliance of the requirement while taking possession. The High Court has also doubted the compensation being tendered as contended on behalf of the appellant.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>7.3 Be that as it may. Assuming for the sake of argument that the original writ petitioners are found to be in possession and the compensation was not tendered, in that case also as can be seen from the order passed by the High Court on 09.11.2011 in writ petition No.7714/2011, the authority was restrained from taking any coercive action in respect of the land in question. Therefore, in view of  the   subsequent decision of this Court in the case of Indore Development Authority (supra ­ paragraph 366.8),the period, during which the interim order is/was operative, has to be excluded in the computation of  five years’ period. In the  present case even, it is the contention on behalf of the original writ petitioners that the order of no coercive action was directed to be continued till the application under section 48 of the Act, 1894 was decided. It is the specific case on behalf of the original writ petitioners before this Court and even so stated in the written submissions that till <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">date no decision is taken on the application under section 48 of the Act, 1894. Meaning thereby the direction/stay granted by the High Court while passing the order dated 09.11.2011 in writ petition No.7714/2011 continued when the Act, 2013 came into force.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>10. In view of the above and for the reasons stated above, the present appeals are allowed. The impugned judgment and order passed by   the High Court in Writ Petition(C) No.1043/2015  declaring that the land acquisition proceedings under the Act, 1894 with respect to the land in question are deemed to have lapsed under sub­section (2) of section 24 of the Act, 2013, is hereby quashed and set aside. The  present appeals are allowed to the aforesaid extent, accordingly. There shall be no order as to costs.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '92eaee7f9695c4b77ce48ddb66ba9898.jpeg', '1117a799650efb8b8e28db9074e21df0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-01', 1, '', '', '2022-03-30 17:54:06', '2022-04-01 05:28:04'),
(1500, 'RvTG4Us1FY4XNmGMvD5uadAKR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'No one can be permitted to take the benefit of the wrong order passed by the court which has been subsequently set aside by the higher forum/court\'. Amount received by persons under a Court order can be recovered upon reversal of the order. Supreme Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mekha Ram and others Vs State of Rajasthan and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2229-2234 of 2022 decided on 29 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R Shah and Justice B.V Nagarathna. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved and dissatisfied with the impugned common\r\njudgment and order dated 06.05.2016 passed by the Division Bench of\r\nthe High Court of Judicature for Rajasthan, Jaipur Bench Jaipur in D.B.\r\nSpecial Appeal (Writ) No. 1883/2014 and other connected appeals, by\r\nwhich the Division Bench of the High Court has allowed the said appeals\r\nand has quashed and set aside the respective judgments and orders\r\npassed by the learned Single Judge of the High Court and held that the\r\nthree years Nursing Course by the in-service candidates could not be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">treated as a period on deputation and be treated only on leave whatever\r\ndue to the candidates and consequently has reserved the liberty in\r\nfavour of the State to recover the excess amount paid to the original writ\r\npetitioners treating the period of training as a period of leave permissible\r\nto him/her in easy equal installments, the original writ petitioners have\r\npreferred the present appeals.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">6. We have heard the learned counsel for the respective parties at\r\nlength. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">At the outset, it is required to be noted that in the present case the\r\namount paid in excess to the appellants was not due to any mistake on the part of the State/State authorities. The excess amount has been paid\r\npursuant to the order passed by the learned Single Judge, which has\r\nbeen subsequently set aside by the Division Bench. Therefore, on\r\nquashing and setting aside the judgment and order passed by the\r\nlearned Single Judge under which the original writ petitioners were paid\r\nthe excess amount, the necessary consequences must follow.\r\nTherefore, considering the fact that the amount already paid in excess\r\nwas not paid by the State mistakenly but was paid pursuant to the order\r\npassed by the learned Single Judge which has been set aside\r\nsubsequently, the decision of this Court in the case of Rafiq Masih\r\n(Supra) shall not be applicable. The said decision of this Court may be\r\napplicable only in a case where the amount has been paid by the\r\nState/State Authorities mistakenly and it is found that there was no fault\r\nand/or any misrepresentation on the part of the employee and that the\r\nconcerned employee is not found responsible for such excess amount\r\npaid mistakenly. The amount paid in excess pursuant to the order\r\npassed by the learned Single Judge which has been set aside by the\r\nDivision Bench has to be refunded and/or returned by the original writ\r\npetitioners which the State is entitled to recover from them on the\r\nprinciple of restitution.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6.1 At this stage, the decision of this Court in the case of Indore\r\nDevelopment Authority (supra) on principle of restitution is required to be\r\nreferred to.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6.2 In the case of Ouseph Mathai v. M. Abdul Khadir, reported in\r\n(2002) 1 SCC 319, it is observed and held that after the dismissal of the\r\nlis, the party concerned is relegated to the position which existed prior to\r\nthe filing of the petition in the court which had granted the stay.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n6.3. Even otherwise, no one can be permitted to take the benefit of the\r\nwrong order passed by the court which has been subsequently set aside\r\nby the higher forum/court. As per the settled position of law, no party\r\nshould be prejudiced because of the order of the court.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. In the present case, the order passed by the learned Single Judge\r\nhas been set aside by the Division Bench of the High Court and therefore\r\nby applying Section 144 CPC also, the amount paid pursuant to the\r\norder passed by the learned Single Judge which has been set aside by\r\nthe Division Bench is required to be refunded/returned by the original writ\r\npetitioners.\r\nTherefore, in the facts and circumstances of the case, narrated\r\nhereinabove, the Division Bench of the High Court is absolutely justified\r\nin reserving liberty in favour of the State to recover the amount paid in\r\nexcess to the original writ petitioners. It is required to be noted that even\r\nwhile reserving liberty to recover the amount paid in excess, the Division\r\nBench has observed that the same be recovered in easy equal\r\ninstallments.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. In view of the above and for the reasons stated above, the Division\r\nBench of the High Court has not committed any error in reserving liberty\r\nin favour of the State to recover the amount paid in excess to the original\r\nwrit petitioners. However, at the same time, considering the prayer made\r\non behalf of the original writ petitioners to recover the amount in easy\r\nequal installments, we direct that whatever amount is paid in excess to\r\nthe original writ petitioners, pursuant to the order passed by the learned\r\nSingle Judge, be recovered from the original writ petitioners in thirty-six\r\nequal monthly installments, to be deducted from their salary commencing\r\nfrom April, 2022.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. The instant appeals are accordingly disposed of in the aforesaid\r\nterms. No costs.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7dacdb4528a48b213ae0c4940584165b.jpeg', 'dc0a8cc1ee895aa37fa86e302bcd1ef9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-31', 1, '', '', '2022-03-30 18:24:22', '2022-03-31 09:23:41'),
(1501, 'hqQBLOlJzpn933P4nud8TU0fD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Family settlement arrived as oral partition and later put into writing for the purpose of information is not required to be compulsorily registered, and stamp duty need not be paid in respect of the same. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Himanu Walia Vs Hemant Walia and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>EX.P. 26 of 2019 decided on 23 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Prathiba M. Singh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The present application has been filed on behalf of the\r\nApplicant/Decree-Holder-Ms. Himani Walia seeking waiver of payment of\r\nstamp duty in respect of the assets inherited by the various parties from the\r\nestate of Late Sh. S.S. Walia and his sister Dr. Urmila Walia. Further, the\r\nApplicant seeks cancellation of the notice dated 14th February, 2022\r\nreceived from the Registry of the High Court of Delhi, as also notice dated\r\n3\r\nrd March 2022 received from the Office of the Assistant Collector (Kalkaji),\r\nNew Delhi. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The suit seeking partition and other reliefs, being CS (OS) No.\r\n442/2018, was filed before this Court by the legal heirs of Late Sh. S.S.\r\nWalia who had passed away on 10th December, 2017. The deceased had a\r\nlarge number of moveable and immovable assets which included the\r\nbusiness of a petrol station, export business, various immovable properties </span><span style=\"font-size: 12pt;\">in prime localities in Delhi and Noida, fixed deposit receipts and bank\r\naccounts, paintings, antiques, artworks, shares in various companies and\r\nvehicles, etc. During the pendency of the suit itself, the three children and\r\nthe wife of the deceased with the assistance of their Counsels had arrived at\r\na settlement. Thereafter, the terms of settlement were incorporated into the\r\n‘Memorandum of Family Settlement and Arrangement’ dated 16th October,\r\n2018.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. Thus, the settlement which was agreed upon by the parties had merely\r\nbeen put into writing in the said ‘Memorandum of Family Settlement and\r\nArrangement’ dated 16th October, 2018. The said family settlement was\r\napproved and a decree in terms thereof was passed by this Court, vide order\r\ndated 16th October, 2018.<span style=\"font-size: 12pt;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. It appears that in order to prepare the decree sheet, the Registry of this <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court has directed furnishing of valuation reports of the assets for the\r\npurpose of calculating the stamp duty. Thus, the present application has been\r\nfiled by the Applicant seeking waiver of payment of stamp duty and\r\ncancellation of the notices.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. It must be noted here that the legal heirs of the deceased persons\r\nbecame part owners of the assets belonging to the two deceased individuals\r\ni.e., Mr. S.S. Walia and Dr. Urmila Walia, immediately upon their demise.\r\nThe said assets were not transferred to the legal heirs, but have been\r\ninherited by them upon the demise of Mr. S.S. Walia and Dr. Urmila Walia.\r\nThe ‘Memorandum of Family Settlement and Arrangement’ dated 16th\r\nOctober, 2018, is merely a recordal of the oral agreement as to the mode and\r\nmanner of partition. Therefore, it is in the nature of a family settlement\r\nwhich was arrived at between the parties. The partition had been agreed\r\nupon between the parties by way of oral agreement with the intervention of\r\ntheir counsels. The memorandum of settlement does not itself partition the\r\nproperties, but only records the same as an aid of memory.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. The issue of registration of family settlements is no longer res integra.\r\nIf an understanding has been arrived at between the parties previously, and it\r\nis only written down in a document after the settlement has been arrived at,\r\nthe same would not require registration. This is the settled position of law as\r\nis clear from Kale & Ors. v. Deputy Director of Consolidation & Ors. [3\r\n(1976) 3 SCC 119].</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The Division Bench of this Court has held in Nitin Jain v. Anuj Jain\r\n& Anr. [ILR (2007) II DELHI 271] that a memorandum recording an oral\r\nfamily settlement which has already taken place is not an instrument\r\ndividing or agreeing to divide property and is therefore, not required to be\r\nstamped.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Thus, it is clear that family settlements are not required to be\r\ncompulsorily registered, and stamp duty is not required to be compulsorily\r\npaid in respect of the same, when the settlement has been arrived at initially\r\nas an oral partition and is thereafter put into writing for the purpose of\r\ninformation. Considering the said position, it is clarified that there is no\r\nrequirement of valuation of the suit properties in the present case. The\r\npayment of stamp duty by the legal heirs of Late Sh. S.S. Walia and Dr.\r\nUrmila Walia shall stand waived. Notices issued by the various authorities\r\nshall also stand cancelled and withdrawn, without any further orders.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1c43bf1d3580ca56bab56aa8784cbf20.JPG', '7e39b18edde9fd8de7b6df7bd8f40025.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-31', 1, '', '', '2022-03-30 18:51:52', '2022-03-31 17:47:58');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1502, 'f4QHZVeh9Dy1xIrdBkz2IylvD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Rejection of plaint. Existence of cause of action and absence of merit in the suit are two different aspects. Whether the plaintiff would ultimately succeed or not, cannot dictate the existence of a cause of action. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Puja Aggarwal Vs Pravesh Narula.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CM(M)-IPD 1 of 2022 decided on 29 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Asha Menon.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This petition under Article 227 of the Constitution of India has\r\nbeen filed by the defendant before the learned Commercial Court, Central\r\nDistrict, Tis Hazari, against its orders dated 15th December, 2021,\r\ndismissing the application under Order VII Rule 11 CPC filed by the\r\npetitioner/defendant for rejection of the suit as there was no cause of\r\naction.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The respondent before this Court had filed a suit for permanent\r\ninjunction to restrain the petitioner/defendant from infringing the&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">copyright of the respondent/plaintiff with further directions of delivery\r\nup, damages and rendition of accounts.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. The respondent/plaintiff is the proprietor of M/s Capital\r\nEnterprises and claimed to be carrying on an old, established and reputed\r\nbusiness of manufacturing and trading in socks etc. In his suit he claimed\r\nto have adopted the trade mark/logo „R.D. Special?&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">n the year 1994. He applied for registration of the logo under\r\nNo.4242962 in respect of socks and other goods included in class 25. He&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">also claimed to have created an artistic packaging in the\r\nyear 1994 which was an original artwork and thus, he was the owner of\r\nthe copyright in the same.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. With regard to the application under Order VII Rule 11 CPC, the\r\nlearned Trial Court observed that para 18 and para 28 of the plaint were\r\nsufficient to show that the cause of action existed for the filing of the suit.\r\nIt was also noted that the respondent/plaintiff had also pleaded that the\r\npetitioner/defendant had been clandestinely selling socks using the\r\nimpugned logo and packaging. Therefore, the issue of cause of action was\r\na disputed question of fact which could be decided on merits, only after\r\nthe evidence was led by both the parties. Aggrieved thereby, the\r\npetitioner/defendant has filed the instant petition. It is to be noted that the\r\npresent petition does not question the decision of the learned Trial Court\r\nin dismissing the application under Order VII Rule 10 CPC, though in the\r\nwritten submissions, reference has been made to the absence of\r\njurisdiction with the courts at Delhi to deal with the suit by contending\r\nthat none of the products of the petitioner/defendant were being sold in\r\nDelhi.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. It has been submitted by Mr. Abhinay Sharma, learned counsel for\r\nthe petitioner/defendant that the learned Trial Court had failed to deal\r\nwith the contention of the petitioner/defendant that the pleadings and\r\ndocuments of the respondent/plaintiff were contradictory and no relief, as\r\nsought in the plaint could be granted. Therefore, it would be grave\r\ninjustice upon the petitioner/defendant to be subjected to an unwarranted\r\ntrial. It was submitted that the suit has been camouflaged under the\r\nCopyright Act, 1957, which was but an illusionary cause of action.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Furthermore, in the Copyright Certificate, the mark was described\r\nas „unpublished?, which meant that it had not been communicated to the\r\npublic in terms of Section 3 of the Copyright Act, 1957. Though there\r\nwas a reference to a Trade Mark Certificate in entry 14 of the same\r\nCertificate, such a trade mark certificate has not been brought on record\r\nby respondent/plaintiff. Why the so-called artistic work of the\r\nrespondent/plaintiff remained unpublished has not been explained in the\r\nplaint. It was submitted that even if there was a thematic similarity, that\r\nwould not entitle the respondent/plaintiff to any injunction.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. It was further submitted that the documents at page 194 of the efile established that it was the petitioner/defendant who was the prior user\r\nand whose rights were safeguarded under Section 34 of the Trade Marks\r\nAct, 1999. Reliance has been placed on the judgment of the Supreme\r\nCourt in Dhodha House v. S.K. Maingi, (2006) 9 SCC 41, to submit that&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">merely filing an application for registration of a trade mark would not\r\ngive rise to any cause of action.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Reliance has been placed on the judgment of the Supreme Court in\r\nRajendra Bajoria v. Hemant Kumar Jalan, 2021 SCC OnLine SC 764,\r\nto seek the dismissal of the suit, which being a frivolous one,\r\nintermingling the cause of action under the Trade Marks Act and\r\nCopyright Act and also claiming passing off, ought to be dismissed at the\r\nthreshold. It was prayed that the impugned order be set aside and the\r\nmatter be remanded back to the learned Trial Court for a fresh decision of\r\nthe application under Order VII Rule 11 in accordance with law.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. Mr. Ashok Goel, learned counsel for the respondent/plaintiff,\r\nsubmitted that there was no error in the reasoned order of the learned\r\nTrial Court. It was submitted that the present petition itself was barred\r\nunder Section 8 of the Commercial Courts Act, 2015. Further, all\r\narguments on behalf of the petitioner/defendant were on merits of the\r\ncase, whereas in an application Order VII Rule 11 CPC, the court was\r\nrequired to only consider the disclosure of a cause of action. The Trial\r\nCourt has held that this was a mixed question of fact and law as it also\r\nhinged on questions of prior usage, as claimed by petitioner/defendant.\r\nMoreover, the suit was not under the Trade Marks Act, 1999 but was for\r\nenforcement of copyright in the artistic work, namely, the label which the\r\npetitioner/defendant had copied. Furthermore, it was submitted that under\r\nSection 62 of the Copyright Act, 1957, the respondent/plaintiff being the\r\ninitiator of the suit could file it before the court in whose jurisdiction, he\r\nresided or carried on his business. Moreover, there was no confusion in&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the pleadings, as no case for passing off or infringement had been pleaded\r\nnor any relief in this regard had been sought. Therefore, the filing of the\r\napplication for registration of a trade mark had no bearing in the present\r\ncase.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. At the outset, the preliminary objection raised by the learned\r\ncounsel for the respondent/plaintiff may be dealt with, regarding the\r\nmaintainability of the present petition. The issue has been answered by a\r\nDivision Bench of this court in Black Diamond Trackparts Pvt. Ltd. v.\r\nBlack Diamond Motors Pvt. Ltd., 2021 SCC OnLine Del 3946. In that\r\ncase, an order of the District Judge of dismissal of an application of the\r\npetitioners/defendants under Order VII Rule 11 of the CPC in a\r\ncommercial suit, was impugned</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. When the court is dealing with an application under Order VII Rule\r\n11 CPC, it is required to look at the averments in the plaint and plaint\r\nalone. The documents filed alongwith the plaint can also be considered.\r\nHowever, the stand of the defendant is irrelevant.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. Order VII Rule 11(a) CPC deals with a situation where the plaint\r\ndoes not disclose a cause of action. What is a cause of action has been\r\ndefined in Swamy Atmananda Vs. Sri Ramakrishna Tapovanam (2005)\r\n10 SCC 51 and has been reiterated in Church of Christ Charitable Trust\r\nand Educational Charitable Society v. Ponniamman Educational\r\nTrust (2012) 8 SCC 706, as being a bundle of facts that are material and\r\nrelevant for the decision of the case and which are required to be proved\r\nby the plaintiff to be entitled for reliefs claimed in the suit.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. That brings us to the facts of the present case. A scrutiny of the\r\nplaint would show that the respondent/plaintiff has averred that he has\r\nbeen using the logo and name “R.D. SPECIAL” in a particular packaging\r\nsince long and in the last week of July, 2021, he had come across an\r\napplication of the petitioner/defendant for registration of the trade mark\r\n“R.D.”, whereupon, he immediately moved the court to prevent the use of\r\nhis artistic work of a building which has been copied by the\r\npetitioner/defendant. The capital letters R.D. have also been used in a\r\nsimilar fashion. It is to protect his interest in his artistic work, that the suit\r\nhas been filed. It would be the defence of the petitioner/defendant that she\r\nhas been in prior use, that the copying of a theme would not amount to\r\ninfringement and that the artistic work itself has not been published.\r\nThese pleas would be an answer to the suit but not indicative of an\r\nabsence of cause of action. T<span style=\"background-color: rgb(255, 255, 0);\">here can be no confusion between the\r\nexistence of a cause of action and the absence of merit in the suit.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Whether the respondent/plaintiff would ultimately succeed or not, cannot\r\ndictate the existence of a cause of action.</span></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. In fact from the averments made in the application under Order VII\r\nRule 11(a) CPC filed by the petitioner/defendant, (placed on the record as\r\nAnnexure P-3), it is more than apparent that she has pleaded her defence\r\nto seek a dismissal of the suit, rather than a rejection of the same. When\r\nthe pleas raised by the petitioner/defendant to repel the claims of the\r\nrespondent/plaintiff cannot be considered at this stage, the learned Trial\r\nCourt was right in observing that the questions raised by the\r\npetitioner/defendant being one of facts, would require trial. An\r\nappropriate issue regarding the existence and non-existence of the cause\r\nof action, amongst other issues can also be framed to be disposed of\r\ntogether, after evidence is recorded.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. This court finds no error or perversity in the decision of the learned\r\nTrial Court, calling for any interference in the exercise of powers under\r\nArticle 227 of the Constitution of India.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. The petition being devoid of merits is dismissed alongwith the\r\npending application.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. Nothing contained in this order shall tantamount to an opinion on\r\nthe merits of the case.&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e456d4056fd9642981e56c634016f89f.png', 'f1bb04a760163b2396135164e7a6d193.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-30', 1, '', '', '2022-03-30 20:25:51', '2022-03-31 06:17:27'),
(1503, '3jLxHVlbFzDit32mq4KN9rz3Y', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Section 377. Victim can NOT prefer appeal questioning adequacy of sentence imposed on the convict. Such a right is conferred only on the State Government. Kerala High Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sulaiman Moideen Bava Vs the State of Kerala and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRA 1075-725 of 2017 decided on 2 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Vinod Chandran and Justice C. Jayachandran.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Criminal Appeal first above referred is\r\npreferred under the Proviso to Section 372 of the Code\r\nof Criminal Procedure, 1973. A preliminary issue as\r\nregards the maintainability of the said appeal is raised\r\nby the learned Public Prosecutor, Sri.V.S.Sreejith,\r\npointing out that the Proviso to Section 372 does not\r\nenvisage an appeal against an Order imposing inadequate\r\nsentence. The proviso contemplates an appeal against an\r\norder,(i) acquitting the accused,(ii) convicting the\r\naccused for a lesser offence and (iii) imposing\r\ninadequate compensation. Hence, an appeal which merely\r\nchallenges the inadequacy of sentence cannot be\r\nmaintained at the instance of a victim. This power is\r\nstatutorily vested with the State Government as per <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 377 of the Code, contends the learned Public\r\nProsecutor.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. Per contra, the appellant contended that the subject\r\nappeal is well-nigh maintainable, since the Proviso to\r\nSection 372 Cr.P.C. contemplates an appeal against an\r\nOrder imposing inadequate compensation, which expression\r\ntakes within its sweep, an order imposing inadequate\r\nsentence as well. According to the learned counsel, the\r\nscope of an appeal, specifically engrafted in the Code\r\nby virtue of an amendment introduced by Act 5 of 2009,\r\nshould not be restricted to cases where the punishment\r\nis for a lesser offence, more so when the \'Notes on\r\nClauses\' to the Code of Criminal Procedure (Amendment)\r\nBill, 2006 stipulates, vide Clause 38, that the\r\namendment to Section 372 gives the victim the right to\r\nprefer an appeal against any adverse order passed by the\r\ntrial court.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. The instant appeal preferred by the appellant/victim\r\nis directed against the judgment of the Special Court\r\nfor Trial of Offences Against Children, Manjeri, dated\r\n20/07/2017 in S.C.No.324/2010, as per which, the\r\naccused persons/respondents were sentenced to rigorous <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">imprisonment for a period of three years and a fine of\r\nRs.3,000/- for the offence under Section 307, read with\r\nSection 149; for six months for offence under Section\r\n143; for one year for offence under Section 147; two\r\nyears for offence under Section 148; six months for\r\noffence under Section 341, read with Section 149; one\r\nyear for offence under Section 329, read with Section\r\n149; two years for offence under Section 329, read with\r\nSection 149; three years and a fine of Rs.3,000/-, for\r\noffence under Section 326, read with Section 149 of the\r\nIndian Penal Code. According to the appellant/victim,\r\nthe punishment imposed is grossly inadequate, having\r\nregard to the gravity of the offences.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. It is clear from a perusal of the Proviso that three\r\ncategories of Orders have been culled out, in providing\r\na right of appeal to the victim, that is to say,\r\n<br>(i) an Order acquitting the accused;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> (ii) an Order convicting the accused for a lesser\r\noffence; and</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) an Order imposing inadequate compensation.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. It is significant to note that no appeal is\r\nprovided, from an Order, challenging the inadequacy of\r\nsentence. The right to prefer an appeal on the ground\r\nof inadequacy of sentence is conferred upon the State\r\nGovernment by virtue of Section 377 of the Code of\r\nCriminal Procedure. It is settled that there is no\r\nvested right to prefer an appeal, unless conferred by\r\nstatute, which legal position is seen recognised in\r\nSection 372 Cr.P.C, wherein it is stipulated that no\r\nappeal shall lie from any judgment or order of a\r\nCriminal Court, except as provided for by the Code of\r\nCriminal Procedure or by any other law for the time\r\nbeing in force.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. The legal position in this regard is no more\r\nres integra. In Parvinder Kansal v. State of NCT of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Delhi and Another (AIR 2020 SC 4044), the precise issue\r\nfell for consideration of the Honourable Supreme Court.\r\nThe Honourable Supreme Court confirmed the Order of the\r\nDelhi High Court, which dismissed an appeal preferred by\r\nthe victim, under the proviso under section 372 Cr.P.C,\r\nseeking enhancement of sentence. In Parvinder Kansal\r\nsupra, the Honourable Supreme Court took stock of its\r\nearlier judgment in National Commission for Women v.\r\nState of Delhi And Another [(2010)12 SCC 599], wherein\r\nit was interalia held that the Proviso to Section 372\r\ndoes not envisage an appeal directed against inadequate\r\nsentence. In view of the above authoritative\r\npronouncements by the Apex Court, we cannot take stock\r\nof the argument of the learned counsel for the\r\nappellant, based on the \'Notes on Clauses\' to the Cr.P.C\r\n(Amendment) Bill, 2006.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. In the light of the above discussion, we find that\r\nCrl.A.No.1075/2017 is not maintainable and the same is\r\ntherefore dismissed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. In Crl.A.No.725 of 2017 preferred by the accused\r\npersons, challenging the judgment of conviction and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">order of sentence, the maximum punishment imposed as per\r\nthe impugned judgment is rigorous imprisonment for a\r\nperiod of three years and a fine of Rs.3,000/-.\r\nAlthough, the maximum punishment prescribed for offence\r\nunder Section 307 is imprisonment for life, in the\r\nabsence of an appeal by the State under Section 377\r\nCr.P.C, Crl.A.No.725/2017 is to be considered by a\r\nSingle Bench as per Section 3 (13) (a) of the Kerala\r\nHigh Court Act, 1958. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a961edf119de705aea2c09f0f6fbca44.jpeg', '7d8136da5920949f51d46080fe7c93e2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-31', 1, '', '', '2022-03-30 20:43:39', '2022-03-31 16:03:25'),
(1504, 'FBwebZL0wC2MnokDaoCb4OK49', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Appeal under Section 21 of the National Investigation Agency Act, 2008 is maintainable before division bench of the High Court only against an interlocutory order granting or refusing to grant bail passed by the Special Court. Karnataka High Court (FB). ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Irfan Pasha and others Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 755 of 2021 decided on 29 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ritu Raj Aswasthi, Justice B. Veerappa and Justice P. Krishna Bhat<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 14.6667px;\"><b>This reference arises out of order dated 09.08.2021 made by the Division Bench of this Court raising doubt about the correctness of view taken by coordinate bench in Criminal Appeal No.97/2018, wherein the office objection regarding maintainability of the appeal was over-ruled and the appeal was decided on merits.</b></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 14.6667px;\"><b>2. Sri.S.Balakrishnan, learned counsel appearing for appellants has relied upon order dated 08.07.2019 passed in Crl.A.No.97/2018 to contend that similar application had been filed in Spl.C.C.No.330/2015 and said application came to be rejected by the Special Court by order dated 08.01.2018, which was challenged in the Crl.A.No.97/2018 and appeal came to be decided on merits, by over-ruling said office objection and as such he prays for over ruling the office objections raised in this appeal.</b></span></font></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 14.6667px;\"><b><br></b></span></font></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 14.6667px;\"><b>3. Per contra, Sri.P.Prasanna Kumar, learned Standing Counsel appearing for respondent would submit that in view of express language contained in sub-section (1) of Section 21 this appeal is not maintainable, since as it is filed against an interlocutory order.</b></span></font></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 14.6667px;\"><b><br></b></span></font></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 14.6667px;\"><b>9. The matter of appeals from any judgment, sentence or order from the Special Court is regulated under Section 21 of the Act.</b></span></font></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 14.6667px;\"><b><br></b></span></font></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 14.6667px;\"><b>12. Hon\'ble Supreme Court had on several occasions observed that in view of the stringency of sentence on conviction under the Act and also the exacting nature of provisions on bail, the intention of legislation is clear that trial should be accomplished at a faster pace. Therefore, the Act has drastically reduced the avenues for the parties to approach the High Court by way of an appeal. A reading of Section 21 of the Act makes it absolutely clear. Section 21 of the Act in terms speaks about no right of appeal being made available against an interlocutory order. Hon\'ble Supreme Court had an occasion to consider the highly restricted scope of preferring an appeal from the orders passed by the Special Court constituted under the Act at various stages before the final judgment is passed in the proceedings before the said Court.</b></span></font></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 14.6667px;\"><b><br></b></span></font></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 14.6667px;\"><b>13. From the above, it is absolutely clear that the only interlocutory order passed by the Special Court against which an appeal is maintainable to the High Court is the order granting or refusing to grant bail.</b></span></font></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 14.6667px;\"><b><br></b></span></font></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 14.6667px;\"><b>14. The above decision of Hon\'ble Supreme Court directly deals with the provision under consideration namely, Section 21 of the Act. However, in view of vehement submissions made by the learned counsel for the appellants, it is now necessary to advert to the decisions cited by him in some detail. Firstly, learned counsel for the appellants placed reliance on 2 decisions namely, NIRANJAN SINGH KARAM SINGH PUNJABI,   ADVOCATE  vs.   JITENDRA   BHIMRAJ  BIJJAYA  AND OTHERS25 rendered by the Hon\'ble Supreme Court and STATE  OF  MAHARASHTRA  vs.  MURLI  RAMACHANDRA  PURUSWAMI26 rendered by Bombay High Court. Those cases arose out of charge sheet filed by the concerned police, among others, under Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short `TADA Act\').  The provision that had fallen for consideration was Section 18 of the TADA Act, which provided for transfer of the case from the Special Court under TADA Act to a regular Sessions Court, if Special Court was of the opinion that there was no case made out to frame charges for offences under the TADA Act. It is undoubtedly a provision worded similarly like Section 21 of the Act and therefore, it is a cognate provision. Since  the  decision  in  MD.  HUSSAIN´s  case  we  have  placed reliance on is directly arising from a case registered under the provisions of the Act, we are of the view that it is not necessary to  consider  the  decision  in  NIRANJAN  SINGH´s  case.    In  any case, careful perusal of the said decision does not indicate Hon\'ble Supreme Court taking any view in derogation of what has  been  held  by  the  Supreme  Court  MD.  HUSSAIN´s  case (supra). Therefore, the above said decision does not render any assistance to the case of the appellants. Insofar as STATE OF MAHARASHTRA vs. MURLI RAMACHANDRA PURUSWAMI is concerned, same is rendered by the Division Bench of the Bombay High Court. Said case is also arising under TADA Act and since MD. HUSSAIN´s judgment is rendered by the Hon\'ble Supreme Court the above case is also of no assistance to the case of appellants.</b></span></font></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 14.6667px;\"><b><br></b></span></font></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 14.6667px;\">15. The next decision relied upon by the learned counsel for the appellants is GIRISH KUMAR SUNEJA vs. CBI27 rendered by a Bench consisting of three Judges of the Hon\'ble Supreme Court. The case before the Hon\'ble Supreme Court arose under the Prevention of Corruption Act, 1988, and what was essentially considered in great detail was the nature of “inter-mediate orders” and “quasi final orders”. Again since the said decision </span></font></span></span><span style=\"font-family: Verdana, sans-serif; font-size: 14.6667px;\">was rendered in a case arising under the Prevention of Corruption Act, 1988, MD. HUSSAIN´s case being directly on the point the above decision also does not render any assistance to the case of the appellants</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 14.6667px;\"><b><br></b></span></font></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><b><span style=\"font-size: 14.6667px;\">16. Learned counsel for the appellants placed reliance on PRAGYASINGH CHANDRAPALSINGH THAKUR vs. STATE OF MAHARASHTRA THROUGH ADDITIONAL CHIEF SECRETARY, HOME DEPARTMENT28, which is decided by a Bench of Hon\'ble Bombay High Court and even though decided in a case arising from National Investigation Agency Act, in view of clear exposition of law in MD. HUSSAIN´s case, we are not inclined to go into a detailed discussion of the above decision. The rest of the decisions cited by the learned counsel for the appellants are not on Section 21 of the Act.</span><br></b></font></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 14.6667px;\"><b><br></b></span></font></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><b><span style=\"font-size: 14.6667px;\">17. In view of the law laid down by the Hon\'ble Apex Court in the case of STATE OF ANDHRA PRADESH vs. MOHD. HUSSAIN supra, we are of the considered view that no appeal shall lie to the High Court under Section 21 of the Act against the interlocutory order except in the case of grant of bail or refusal to grant bail.</span><br></b></font></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 14.6667px;\"><b><br></b></span></font></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 14.6667px;\"><b>18. In the present case, the order impugned in the appeal is an interlocutory order rejecting the transfer application and as such, the appeal preferred by the appellants is not maintainable.</b></span></font></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 14.6667px; font-family: Verdana, sans-serif;\">19. The reference is answered as follows:</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 14.6667px;\"><b>i. An interlocutory application rejected by the Special Court vide order dated 22.02.2021 would not give rise to filing of an appeal under Section 21 of the National Investigation Agency Act, 2008.</b></span></font></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><b><span style=\"font-size: 14.6667px;\">ii. No appeal shall lie under Section 21 of the National Investigation Agency Act, 2008 against an order passed under Section 20 of the Act.</span></b></font></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><b><span style=\"font-size: 14.6667px;\">iii. An appeal under Section 21 of the National Investigation Agency Act, 2008 shall be maintainable before the division bench of the High Court only against an interlocutory order granting or refusing to grant bail passed by the Special Court under National Investigation Agency Act, 2008.</span><br></b></font></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 14.6667px;\"><b><br></b></span></font></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span lang=\"EN-US\" style=\"\"><font face=\"Verdana, sans-serif\"><span style=\"font-size: 14.6667px;\"><b>20. In view of the above, Criminal Appeal No.755/2021 preferred by the appellants stands dismissed being not maintainable.</b></span></font></span></span></p>', '4e3449b996d0846a842b522383a8d526.JPG', '1ffdc13c2d59fec459b983a764569de6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-31', 1, '', '', '2022-03-30 21:59:12', '2022-03-30 12:18:01'),
(1505, 'CWTnnHxI5JIg1tkHpZMyUBStX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Courts do not apply Article 14 to dispositions of properties under a Will. While considering genuineness of a Will, Court cannot see if distribution made under the Will is fair and equitable to all beneficiaries. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Swarnalatha and others Vs Kalavathy and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1565 of 2022 decided on 30 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemanth Gupta and Justice V. Ramasubramanian.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. The probate granted by the District Court in respect of two last Wills and Testaments, one by the father and another by the mother, having been set aside by the High Court in an appeal under Section 384 of the Indian Succession Act, 1925 (hereinafter referred to as “the Act”), one set of legatees claiming under the Will have come up with the above appeal.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. The claim of the appellants before the Probate Court was that the parents executed their last Will and Testament, in a sound and disposing state of mind and that those Wills were executed in the manner prescribed by law. To establish the execution of the Will of the mother Adhilakshmiammal, in terms of Section 68 of the Indian Evidence Act, 1872, the appellants examined Mr. S. Rajasekaran as PW­2. He was one of the attestors of the Will. The other attestor of the Will was none else than the father Mannar Reddiar. One Mr. B. Nithyanandham,   the   scribe   of   the   Will   of   the   Mother  was also examined as PW­3.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21. When it was not even the case of the respondents that the testators were not in a sound and disposing state of mind, the High Court found fault with the appellants for not disclosing the nature of the ailments suffered by them. The exclusion of one of the natural heirs from the bequest, cannot by itself be a ground to hold that there are suspicious circumstances. The reasons given in Exhibit P­1 are more than convincing to show that the exclusion of the daughter has happened in a very natural way. If Exhibit P­1(Will) had been fabricated on blank papers containing the signatures of the mother, there would have been no occasion for the father to make a mention in his own Will (Exhibit P­2) about the execution of the Will by the mother.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22. We do not know how the High Court held the delay on the part of the appellants in seeking probate of the Wills to be a suspicious circumstance. Exhibit P­1 was executed on 30.01.1995 and the testatrix died on 14.08.1995. The father was alive till 08.08.2000. Therefore, there was no necessity for the appellants to seek probate of the said Will. After the death of Mannar Reddiar on 08.08.2000, the appellants obviously had no support, due to the fact that V.M. Chandrasekaran (husband of appellant No.1 and father of appellant Nos.2 and 3 had pre­deceased the father Mannar Reddiar. It is recorded in the impugned Judgment that V.M. Chandrasekaran died in October­1999.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23. The occasion for the appellants to seek probate of the Will arose only when the respondents filed the suit for partition in O.S. No.387 of 2005. Therefore, there was actually no delay on the part of the appellants in seeking probate. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24. The High Court made a mountain out of a molehill, by reading too much into the lack of knowledge on the part of appellant No.1 about the time of registration of Exhibit P­2 (Will) and the minor contradictions between her statement as PW­1 and the statements of PWs 4 and 5. The adverse inference sought to be drawn by the High Court about the failure of the testator Mannar Reddiar to ensure the presence of the daughter and the second daughter­inlaw at the time of execution of Exhibit P­2, has no basis in law.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25. The law relating to suspicious circumstances surrounding the execution of a Will is already well­settled and it needs no reiteration. It is enough if we make a reference to one of the recent decisions of this Court in Kavita Kanwar vs. Mrs. Pamela Mehta and Ors.1 where this Court referred to almost all previous decisions right from  H. Venkatachala Iyengar vs.B.N. Thimmajamma. But cases in which a suspicion is created are essentially those where either the signature of the testator is disputed or the mental capacity of the testator is questioned. This can be seen from the fact that almost all previous decisions of this Court referred to in Kavita Kanwar (supra) list out circumstances, which in the context of the lack of sound and disposing state of mind of the testator, became suspicious circumstances. In the matter of appreciating the genuineness of execution of a Will, there is no place for the Court to see whether the distribution made by the testator was fair and equitable to all of his children. The Court does not apply Article 14 to dispositions under a Will. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26. It is not difficult for an objective mind to understand the 1 AIR 2020 SC 544 2 AIR 1959 SC 443 reasons behind the daughter and the second son of the testators coming together. Under both the Wills Exhibit P­1 and P­2, the properties have been equally distributed between the two sons. The first  son V.M. Chandrasekaran is now no more. Admittedly Kalavathy’s daughter has been given in marriage to V.M. Sivakumar (second son of testator). Therefore, if the bequest under the two Wills go, V.M. Sivakumar’s family may eventually receive 2/3rd share of the properties, which is more beneficial for V.M. Sivakumar than getting half share under the Wills. Unfortunately, the High Court completely overlooked this aspect and started analyzing the Wills with suspicion.Therefore, the impugned Judgment of the High Court is incapable of being sustained.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>27. In view of the above the appeal is allowed. The impugned judgment of the High Court is set aside and the Judgment of the Principal District Court, Vellore granting probate of both the Wills, is restored.  There will be no order as to costs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'bc820ff515677c1da10a48dee9b84f21.jpeg', 'd1709680378628cb6f381f9d521aae91.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-04', 1, '', '', '2022-03-31 17:49:21', '2022-04-04 20:41:57');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1511, 'gxkWOjlepHIOSIFdaIVvA4YFw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Caste can be basis for providing reservation. Internal reservation based on sub-classification of a particular community can be done only on justifiable data. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pattali Makkal Katchi Vs A. Mayilerumperumal and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2601 of 2022 decided on 30 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice L. Nageswara Rao and Justice B.R Gavai.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The Tamil Nadu Special Reservation of seats in\r\nEducational Institutions including Private Educational\r\nInstitutions and of appointments or posts in the services under\r\nthe State within the Reservation for the Most Backward Classes\r\nand Denotified Communities Act, 2021 was declared as\r\nunconstitutional by the High Court of Madras, Madurai Bench by\r\na judgment dated 01.11.2021. The correctness of the said\r\njudgment is challenged in these appeals.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>B. Permissibility of sub-classification amongst backward\r\nclasses</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. Placing reliance on the judgment of this Court in E.V.\r\nChinnaiah v. State of A.P.\r\n23\r\n, the High Court held that all\r\ncastes including the sub-castes, races, tribes mentioned in the\r\nlist are to be members of one group for the purpose of the\r\nConstitution and cannot be further sub-divided so as to give </b><b style=\"font-size: 12pt;\">more preference to a miniscule portion thereof. The High Court\r\nalso observed that as per E.V. Chinnaiah (supra), all the castes\r\nincluded in the Schedule under Article 341 of the Constitution\r\nwould be ‘deemed to be’ one class of persons. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36. In E.V. Chinnaiah (supra), this Court was of the opinion\r\nthat Article 341 made it clear that the State, either by legislative\r\nor executive action, had no power of “disturbing” the\r\nPresidential list of Scheduled Castes and therefore, any\r\nexecutive or legislative act of the State which interferes,\r\ndisturbs, rearranges, regroups or reclassifies various castes in\r\nthe Presidential list is violative of Article 341 and the scheme of\r\nthe Constitution. Further, it was held that castes identified by\r\nthe President under Article 341 formed a class in themselves\r\nand any division of these classes based on any consideration\r\nwould amount to tinkering with the Presidential list. As the\r\nprimary object of the impugned enactment in that case was to\r\ncreate groups of sub-castes in the list of Scheduled Castes, this\r\nCourt concluded that the State does not have legislative\r\ncompetence to divide the Scheduled Castes, by tracing its claim\r\nto Entry 41 of List II and Entry 25 of List III. Insofar as the\r\ncontention of sub-classification of Scheduled Castes is\r\nconcerned, this Court rejected the contention of the respondents\r\ntherein that the ratio of Indra Sawhney (supra) applied to the\r\nfacts of E.V. Chinnaiah (supra). It was pointed out that sub <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">classification dealt with by Indra Sawhney (supra) related only\r\nto ‘Other Backward Classes’ and not Scheduled Castes as the\r\njudgment in Indra Sawhney (supra) itself had expressly held\r\nthat subdivision of ‘Other Backward Classes’ is not applicable to\r\nScheduled Castes and Scheduled Tribes, the reason for which,\r\naccording to this Court in E.V. Chinnaiah (supra), was that the\r\nConstitution itself had kept the Lists of Scheduled Castes and\r\nScheduled Tribes out of interference by the State Governments.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n37. A close scrutiny of E.V. Chinnaiah (supra) would make it\r\nclear that the High Court was wrong in relying upon the said\r\njudgment to hold that sub-classification of backward classes is\r\nbeyond the legislative competence of the State. E.V.\r\nChinnaiah (supra) primarily relates to the power of the State\r\nlegislature in categorising the Scheduled Castes identified under\r\nArticle 341 into four groups, the effect of which was held to be\r\nmodification of the Presidential list, which Article 341 precluded\r\nthe States from doing.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>38. By drawing strength from E.V. Chinnaiah (supra), the\r\nHigh Court was of the firm view that there cannot be any subdivision of castes including sub-castes, races and tribes\r\nmentioned in the Presidential list. In E.V. Chinnaiah (supra), it\r\nwas held that castes once included in the Presidential list form a\r\nclass by themselves and any division of these classes or persons\r\nbased on any consideration would amount to tinkering with the\r\nPresidential list. According to the plural opinion in Dr Jaishri\r\nLaxmanrao Patil (supra), the list of SEBCs with respect to\r\nStates was to be notified by the President, after due consultation\r\nwith the National Commission for Backward Classes under <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Article 342-A. Admittedly, this was not done till the time of\r\nenactment of the 2021 Act. As stated earlier, exercising powers\r\nunder Article 142 of the Constitution, this Court in Dr Jaishri\r\nLaxmanrao Patil (supra) directed that till the publication of the\r\nlist of SEBCs by the President, the SEBC lists prepared by the\r\nStates would continue to hold the field. Thus, even on\r\nconsideration of the law laid down in E.V. Chinnaiah (supra), it\r\nis clear from the above that a Presidential list for SEBCs did not\r\ncome into existence and the question of sub-division of the said\r\nlist by way of the 2021 Act does not arise. Therefore, the finding\r\nof the High Court in this regard is erroneous.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>54. It is clear from the above that caste can be the basis for\r\nproviding reservation, but it cannot be the sole basis. At present\r\nwe are concerned with sub-classification. As stated, it has been\r\nheld in Indra Sawhney (supra) that there is no constitutional or\r\nlegal bar to a State categorising backward classes as backward\r\nand more backward. In the present case, sub-classification for\r\nproviding internal reservation to a particular community, i.e., the\r\nVanniakula Kshatriyas, will also be governed by the same\r\nprinciple, namely, while caste can be the starting point for\r\nproviding internal reservation, it is incumbent on the State\r\nGovernment to justify the reasonableness of the subclassification and demonstrate that caste has not been the only\r\nbasis. We are not at present dealing with the inquiry of other\r\nfactors relied on by the State Government to justify internal <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reservation for the Vanniakula Kshatriyas. We propose to deal\r\nwith that point subsequently. At present, we have answered the\r\nquestion relating to caste being the starting basis for providing\r\nreservation and for sub-classification of backward classes so as\r\nto provide for internal reservation</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>72. Discrimination is the essence of classification. Equality is\r\nviolated if it rests on unreasonable basis. The concept of\r\nequality has an inherent limitation arising from the very nature\r\nof the constitutional guarantee. Those who are similarly\r\ncircumstanced are entitled to an equal treatment. Equality is\r\namongst equals. Classification is, therefore, to be founded on\r\nsubstantial differences which distinguish persons grouped\r\ntogether from those left out of the groups and such differential\r\nattributes must bear a just and rational relation to the object\r\nsought to be achieved. Our Constitution aims at equality of\r\nstatus and opportunity for all citizens including those who are\r\nsocially, economically and educationally backward. Articles <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15(4) and 16(4) bring out the position of backward classes to\r\nmerit equality. Special provisions are made for the\r\nadvancement of backward classes and reservation of\r\nappointments and posts for them to secure adequate\r\nrepresentation. These provisions are intended to bring out the\r\ncontent of equality guaranteed by Articles 14, 15(1) and 16(1).\r\nHowever, it is to be noted that equality under Articles 15 and 16\r\ncould not have a different content from equality under Article\r\n14. Differentia which is the basis of classification must be\r\nsound and must have reasonable relation to the object of the\r\nlegislation. If the object itself is discriminatory, then\r\nexplanation that classification is reasonable having rational\r\nrelation to the object sought to be achieved is immaterial. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>77. To conclude, we hold that there is no bar on the legislative\r\ncompetence of the State to enact the 2021 Act and on the\r\ndifferent grounds urged with respect to this issue, we are of the\r\nview that:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The 105th Amendment Act being prospective in operation, it\r\nis the 102nd Amendment Act which held the field at the\r\ntime of enactment of the 2021 Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) As the 2021 Act dealt with sub-classification and\r\napportionment of certain percentage of reservation for the\r\npurpose of determining the extent of reservation of<span style=\"font-size: 12pt;\">communities within the MBCs and DNCs, it is a permissible\r\nexercise of power by the State Government under Article\r\n342-A of the Constitution in terms of the judgment of this\r\nCourt in Dr Jaishri Laxmanrao Patil (supra). Prior to the\r\n105th Amendment Act, what was prohibited for the State to\r\ncarry out under Article 342-A is the identification of SEBCs,\r\nby inclusion or exclusion of communities in the Presidential\r\nlist of SEBCs. It is clear that the exercise of identification of\r\nMBCs and DNCs had been completed by the State pursuant\r\nto the 1994 Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>(iii) There is no bar to the sub-classification amongst backward\r\nclasses, which has been expressly approved in Indra\r\nSawhney (supra). Even considering the judgment in E.V.\r\nChinnaiah (supra), which dealt with the sub-classification\r\nof Scheduled Castes identified in the Presidential list under\r\nArticle 341 and held that any sub-division of Scheduled\r\nCastes by the State would amount to tinkering with the\r\nPresidential list, the State’s competence in the present\r\ncase to enact the 2021 Act is not taken away on this\r\nground as, admittedly, the Presidential list of SEBCs is yet\r\nto be published, making the question of tinkering with such\r\nlist redundant.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iv) Placing of the 1994 Act under the Ninth Schedule cannot\r\noperate as a hurdle for the State to enact legislations on\r\nmatters ancillary to the 1994 Act. Legislative competence\r\nof the State Legislature can only be circumscribed by\r\nexpress prohibition contained in the Constitution itself and\r\nArticle 31-B does not stipulate any such express prohibition\r\non the legislative powers of the State.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(v) Detailing the extent of reservation for communities already\r\nidentified as MBCs and DNCs, which is the thrust of the\r\n2021 Act, cannot be said to be in conflict with the 1994 Act,\r\nas determination of extent of reservation for various\r\ncommunities was not the subject matter of the 1994 Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(vi) The 1994 Act, having received the assent of the President\r\nunder Article 31-C, does not prohibit the State Legislature\r\nfrom enacting a legislation with the approval of the\r\nGovernor on matters ancillary to the 1994 Act, as Article\r\n31-C does not place any fetter on the legislative powers of\r\nthe State. The State cannot be compelled to seek the\r\nassent of the President for a legislation granting internal\r\nreservation, when it is empowered to provide reservation\r\nand other special measures for backward classes, by way\r\nof legislation as well as executive orders, under Articles\r\n15(4) and 16(4) of the Constitution. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>On the issue of caste-based classification, Indra Sawhney\r\n(supra) has, in precise and unambiguous terms, stated that\r\ncaste can be the starting point for identifying backward classes,\r\nbut it cannot be the sole basis. Accordingly, while caste can be\r\nthe starting point for providing internal reservation, it is\r\nincumbent on the State Government to justify the\r\nreasonableness of the decision and demonstrate that caste is\r\nnot the sole basis. As regards the letter of Justice\r\nThanikachalam, Chairman of the Tamil Nadu Backward Classes\r\nCommission, which forms the basis of the 2021 Act, we find that\r\nthe Government has committed an error in accepting the\r\nrecommendations therein for the following reasons:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Recommendations have been based on the report of the\r\nChairman of the Janarthanam Commission, which had relied\r\non antiquated data, and there is a clear lapse on the part of\r\nJustice Thanikachalam in having readily dismissed the\r\nreservations expressed by the majority members of the\r\nJanarthanam Commission, who had observed that in the\r\nabsence of updated caste-wise data, recommendations on\r\ninternal reservation could not be fruitfully made.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) Apart from approving the report of the Chairman of the\r\nJanarthanam Commission with respect to internal\r\nreservation for the Vanniakula Kshatriyas and making <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">additional recommendations on the grouping of the\r\nremaining communities for specific percentages of\r\nreservation, the letter from Justice Thanikachalam does not\r\nrefer to any analysis or assessment of the relative\r\nbackwardness and representation of the communities\r\nwithin the MBCs and DNCs.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(iii) Population has been made the sole basis for recommending\r\ninternal reservation for the Vanniakula Kshatriyas, which is\r\ndirectly in the teeth of the law laid down by this Court.\r\nFinally, on the 2021 Act, we are of the opinion that there is no\r\nsubstantial basis for classifying the Vanniakula Kshatriyas into\r\none group to be treated differentially from the remaining 115\r\ncommunities within the MBCs and DNCs, and therefore, the\r\n2021 Act is in violation of Articles 14, 15 and 16. We uphold the\r\njudgment of the High Court on this aspect. Given our\r\nconclusion on the 2021 Act being ultra vires Articles 14, 15 and\r\n16 of the Constitution, we have refrained from delving into the\r\nissue of non-compliance by the State Government with the\r\nconsultation requirement prescribed under clause (9) of Article\r\n338-B at the time of enactment of the 2021 Act.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>79. The Appeals are disposed of accordingly.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ec4aba5a9ea3bf91ced64a3b0f015875.jpg', '6f553cb3d5e709c9641ef238f6f9c28c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-03', 1, '', '', '2022-04-01 17:24:48', '2022-04-03 09:02:41'),
(1506, 'xjtnazkutxeH870FOis0di0bV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contract Act, 1872. Refusal of a contractor to continue to execute the work unless the reciprocal promises are performed by the other party cannot be termed as abandonment of contract. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shripati Lakhu Mane Vs Member Secretary Maharashtra Water Supply and Sewerage Board and Others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 556 of 2012 decided on 30 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Gupta and V. Ramasubramanian.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. The plaintiff in a suit for recovery of money has come up with the above appeal challenging the judgment and decree of the High Court of Judicature at Bombay in a regular appeal under Section 96 of the Code of Civil Procedure, 1908, by which the decree granted by the Trial Court for recovery of Rs.24,97,077/­ together with interest at 10% per annum was modified into a decree for recovery of Rs.7,19,412/­ together with interest.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17. In fact, Section 67 of the Indian Contract Act, 1872 makes it clear that if any promisee neglects or refuses to afford the promisor reasonable  facilities for the performance of his promise, the promisor is excused by such neglect or refusal</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19. It is fundamental to the Law of Contract that whenever a material alteration takes place in the terms of the original contract, on account of any act of omission or commission on the part of one of the parties to the contract, it is open to the other party not to perform the original contract. This  will not amount to abandonment. Moreover, abandonment is normally understood, in the context of a right and not in the context of a liability or obligation. A party to a contract may abandon his rights under the contract leading to a plea of waiver by the other party, but there is no question of abandoning an obligation. In this case, the appellant refused to perform his obligations under the work­order, for reasons stated by him.This refusal to perform the obligations, can perhaps be termed as breach of contract and not abandonment.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20. It is interesting to note that the respondents did not choose,</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i)  to  allege breach of contract against the appellant;   and</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> (ii) consequently to invoke the right to rescind the contract under clause 3(a). The respondents, if they were justified in doing so, could have taken recourse to the remedy available under Section 75 of the Contract Act and sought compensation for the damage sustained through the non­fulfillment  of the contract. On the contrary they attributed abandonment to the appellant (without understanding the true purport of the word ‘abandonment’) and refused to honour the claims made by the appellant. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>21. The finding of the High Court that there was abandonment of contract, was on the basis that after the second bill was cleared in May, 1987, the work under the main contract did not progress. This finding goes completely contrary to yet another finding that the period of the contract was up to   June, 1989 and that the respondents themselves granted extension of time to complete the contract up to 31.12.1989, despite there being no request from the appellant. We fail to understand as to how a person who abandoned the contract in May, 1987 could be granted extension of time up to December, 1989 on the very understanding of the respondents that the contract was up to June, 1989. In fact, the High Court recorded a finding in paragraph 9 of the impugned judgment that according to DWs 3, 4 and 5, the power to rescind under clause 3(a) of the tender was invoked and the security deposit forfeited. This was not how the respondents pitched their claim even  in  the written statement. In any case such a finding cannot co­exist with the specific stand of the respondents that the period of contract was extended up to December, 1989.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>22. The refusal of a contractor to continue to execute the work, unless the reciprocal promises are performed by the other party, cannot be termed as abandonment of contract. A refusal by one party to a contract, may entitle the other party either to sue for breach or to rescind the contract and sue on a quantum meruit for the work already done. Paragraph 694 of Volume 9, Fourth Edition of  Halsbury’s Laws   of  England,  may be usefully extracted to highlight the remedies available to a party to the contract, if the other party absolutely refuses to perform his part of the contract.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>“694.  Work   done   under   a   contract   terminated   for   breach. Where   one   party   has   absolutely   refused   to   perform,   or   has rendered himself incapable of performing, his part of the contract, he puts in the power of the other party either to sue for a breach of it, or to rescind the contract and sue on a quantum meruit for the work actually done.  Thus, where a publisher engaged an author to write a work but abandoned the project, the author was entitled to recover reasonable remuneration without tendering the completed work; and   where a defendant wrongfully revoked the plaintiff’s authority to sell his land after the latter had found a purchaser, the plaintiff recovered reasonable remuneration for his work and labour up to that date. This type of quantum meruit claim is analogous to claims for the repayment of money on total failure of consideration.  In both cases, the contract must be at an end before the claim can be brought; but once the contract is at an end there is a logical difficulty in saying that the claim is contractual.”</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>The  respondents did not choose  the option of rescinding the contract and suing for damages in terms of clause 3 (a) and (b). It was   the respondents  who   made  it  difficult   for   the   appellant   to execute the contract as per the terms originally agreed.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>24. The appeal is allowed. There will be no order as to costs.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ef3a19e2f4890b986d4544786ec12b2d.jpg', 'ce18634cc77cb159f5032f99e89ae606.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-31', 1, '', '', '2022-03-31 18:15:30', '2022-03-31 10:32:41');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1510, 'LMI6SmxPsEC9lymI79MTY63QQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A document cannot be registered unless the executant personally appears and establishes his identity to the registering officer and admits execution of the document under Sections 34 and 35 of the Registration Act. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>P.C. Padmamba Vs Channaveeramma. R and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R.S.A 5 of 2017 decided on 25 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. On 15.02.1982, R.Chennaveeramma and R.Bhagirathamma—daughters of C.Rudraiah filed a suit seeking for a decree of injunction to restrain Y.Chikkanna from interfering with their possession over the house property bearing Door No.42, situated at N.G.O’s Colony, Rajendra Nagar, Mysuru.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. It was stated that the suit house property had been allotted to their father Rudraiah on 01.02.1967 and all the municipal records stood in his name. It was stated that Rudraiah had passed away on 06.01.1982 and during his lifetime, he had executed a registered Will dated 20.11.1973 (registered on 23.11.1973) bequeathing the house in their favour and they had thus succeeded to the property. They stated that they were in continuous possession and enjoyment of the house property and as the defendant was contending that he had purchased the suit property and had come near the suit property and tried to interfere with their possession, they were constrained to file the suit.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. This suit was resisted by Chikkanna stating that Rudraiah had been allotted with the site by the Karnataka Housing Board under a Hire-Purchase Agreement, but he 5 was not in a position to pay the installments and in addition, he had decided to leave Mysuru and return  to  his native place and he had therefore decided to sell the suit house in favour of the defendant. He stated that Rudraiah had executed a sale deed on 03.05.1979 in his favour for a total sale consideration of Rs.22,000/-.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>46. Thus, a combined reading of Section 34 and Section </b></font><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">35 of the Registration Act leaves no room for any doubt </b><font face=\"Calibri, sans-serif\" style=\"font-size: 1rem;\"><b>that a document cannot be registered unless the </b></font><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">executant personally appears and thereafter establishes </b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">his identity to the registering officer and finally admits the </b><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">execution of the document before the registering officer.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>68. As already held above, under Section 35(1) of the Registration Act, only if a person appears personally and admits execution of a document, the registering officer  can register the document. If an executant  appears  before the registering officer and denies the execution of the document, under Section 35(3)(a)of the Registration Act, he is legally obliged to refuse to register the document. In both such cases, however, the  voluntary and personal appearance of the executant is an absolute must. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>69. It is only if an executant appears voluntarily and personally and denies the execution of the document, would the remedy contemplated under Section 73 of the Registration Act be available.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>70. If an executant does not appear voluntarily to either admit or deny execution of the document, the remedy available under Section 73 of the Registration Act would not be available. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>71. If an executant is summoned by the registering officer and on being summoned, the executant denies the execution of the document and the officer refuses to register the document, the remedy  provided  under Section 73 of the Registration Act would not be available. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>72. The consequences of permitting a contrary course of action would be quite dangerous, as could be seen in this very case. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>73. Admittedly, Chikkanna—the purchaser was yet to  pay the agreed balance sale consideration of Rs.15,200/- though he claimed that a sale deed had been executed by Rudraiah. In fact, Chikkanna even after the registration of the sale, pursuant to the order of the Registrar, issued a legal notice calling upon Rudraiah to receive the balance sale consideration and hand over possession. Thus, though the purchaser himself admitted that the sale transaction was yet to be concluded, at least in terms of receipt of the sale consideration, by the  intervention  of the order of the District Registrar, the sale  transaction  has been concluded and the sale deed has  been registered. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>74. This essentially means that the Registrar has enforced a contract which had only been partly performed and some of the admitted terms of the contract were yet to be fulfilled. Furthermore, a sale deed executed by a person, who had no title over the property as on the date of the presentation of the sale deed, has been ordered to be registered, thereby purporting to convey the title  to  the buyer. This is, in fact, a power which is not available  or conferred on a Civil Court even under the provisions of the Specific Relief Act. This is, thus obviously, beyond the purview of the Registration Act itself and the resultant registration of a document would have to be necessarily a complete nullity in the eye of law. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>75. Since, the registration of the sale deed was a complete nullity in law, the same can have no significance at all and would also confer no rights. In fact, such a null and void act, even if validated by consent of parties would not transform it into a legal act. It is settled law that an act, which is nullity, does not have to be impugned  by  way of a suit</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>77. In a given case, if an executant appears either voluntarily or on being summoned and states that he has executed the document on the promise that he would be paid the balance sale consideration and that he is yet to  be paid the balance sale consideration, the  question  would arise whether the registering officer possesses the power to conduct an enquiry and determine whether any money was still due to the seller and thereafter, order it   to be paid by the buyer. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>78. Carrying this analogy further,  suppose,  thereafter on such determination, the buyer refuses to pay, can the registration of the document be refused on that score, despite the fact that execution of the document was admitted. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>79. As a corollary, suppose in a case where the seller appears and admits execution of the document but  refuses to sign the endorsement on the ground that some money is still due to him and the registering officer holds an enquiry and determines that certain sums are due to the seller and calls upon the buyer to pay the outstanding sum and the buyer refuses to pay the sum so ordered, whether the registering officer can refuse the registration on this ground despite the admission of the execution of the document.  </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>80. These illustrations are being made only to highlight the implied limitations of the powers conferred on the registering officer and the District Registrar in the matter relating to registration of sale deeds of immovable properties, when the seller does not appear voluntarily to admit the execution of the sale deed and the  consequential complications that may arise in myriad ways. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>81. It will therefore have to be held that if an executant does not appear voluntarily and does not admit execution of a sale deed relating to an immovable property, the registering officer cannot summon the executant to ascertain whether the sale deed was indeed executed or not. In fact, in such cases, it would be a case of an invalid presentation of the sale deed and such an invalidly presented sale deed cannot be ordered to be registered.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 82. By the same analogy, the remedy contemplated under Section 73 of the Registration Act to the Registrar would be unavailable and even if such a remedy is  invoked, the Registrar cannot hold an enquiry to  determine whether the executant admitted the execution of the sale deed and order its registration. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>83. The judgment of the Apex Court in  Dahibhen’s  case relied upon by the learned counsel for the appellant, to contend that once the sale deed is registered, the sale would be complete and the title would pass on to the transferee cannot really apply to the facts and circumstances of the present case. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">84. </font><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">In that case, the executant i.e., the seller had admittedly appeared before the registering officer voluntarily and had also executed the sale deed notwithstanding the fact that a part of the sale consideration was yet to be paid and had been promised  to be paid through cheques, which subsequently turned  out to be bogus cheques. In the context of that case and having regard to the fact that the sale of an immoveable property can be made even on payment of a part of the sale price with the promise to pay the remaining at a later date, the Hon’ble Supreme Court held  that  the registration of the sale deed would complete the conveyance and non-payment of the sale consideration would not invalidate the sale. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">85.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">In fact, the Hon’ble Apex Court has held that to constitute a “sale”, the parties must intend to transfer the ownership of the property, on the agreement to pay the price either in praesenti, or in future. The intention  is to be gathered from the recitals of the sale deed, the  conduct of the parties, and the evidence on record. As noticed above, in the present case, the evidence  on  record clearly indicates that Rudraiah was to be paid Rs.15,200/- as on the date it was presented for registration. It is, therefore, clear that as the terms of   the sale were not adhered to and Rudraiah by his absence indicated his unwillingness to sell his house and yet the sale deed has been compulsorily ordered to be registered by the Registrar, would go against the dicta laid down in that judgment. The aforesaid decision would therefore not assist the appellant.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"> 86.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">The decision relied upon by the learned counsel in Devikarani Roerich would also be of no consequence since the said decision only states that the non- appearance of a person could be constructively treated as the denial of execution. In the instant case, on being summoned, Rudraiah did appear before the Registering officer  and is stated to have admitted the execution but  he however refused to sign the endorsement that was required to be made as per Section 58 of the Registration Act. It is thus clear that the aforesaid decision would have no bearing on this case.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"> 87.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">The argument of the learned counsel that the suit was barred by limitation since an  amendment  was granted only in the year 1999 and therefore, the suit was 54 to be dismissed as being time-barred, cannot also be accepted.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"> 88.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">It has to be stated here that the application in I.A. No.5 seeking for amendment had been rejected by an order dated 27.06.1994 by the Trial Court. This Court, however, in Civil Revision Petition No.2687 of 1994set aside the said order and allowed the application for amendment. This order granting amendment did not specify that the amendment would be effective only from the date of the order. As a consequence, the amendment would relate back to the filing of the suit and  since  the suit had been filed within three  years of  the registration of the sale deed, the suit would be within time. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">89.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">Furthermore, in view of the fact that  the  amendment was granted after hearing the appellant and the appellant has accepted the said order, the plea of limitation cannot be raised by the appellant.  </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">90.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">The argument that the plaintiffs had filed a writ petition challenging the order of compulsory registration but had withdrawn it and therefore, the registration of the document had become final, cannot also be accepted. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">91.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">As already held above, the registration of the sale deed in this case is a nullity in the eye of law and  therefore requirement of there being a challenge to it, would not arise at all. Further, even if a challenge had been made and was withdrawn, that withdrawal of the challenge would not transform an act that was a nullity into a valid and legal act which binds the petitioners. The challenge in the writ petition was to the order of the Registrar directing registration and since it has been held that the registration done pursuant to the said order was   a nullity, the withdrawal of  the writ petition would be of  no consequence. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">92.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">The final argument of the learned counsel for the appellant that the application for production of additional  evidence could not be considered prior to the disposal of the appeal cannot also be accepted. The plaintiffs by the said application had merely produced the sale deed executed in their favour by the Housing Board and the tax paid receipts in respect of the said property and also certain other related municipal records. These documents were in no way necessary for the pronouncement of the judgment by the Appellate Court and they merely were proof of certain subsequent events, which did not have a real bearing on the decision of the Appellate Court. It is only if these documents were the reasons for allowing the appeal, the argument advanced by the learned counsel would be of some relevance. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">93.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">As stated above, the Appellate Court  has  allowed the appeal solely on the ground that the outstanding dues to the Housing Board had also not been paid by Rudraiah, thus he had no title to the property when the sale deed was executed and also that the balance consideration had not been paid to Rudraiah. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">94.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">For all the reasons stated above, in my view, no question of law, much less, a substantial question of law arises for consideration in these appeals. The appeals are accordingly dismissed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '55bcce6437a0e2614b7a4bf6514caf2c.jpeg', '54a46e802d5097a41d36b0f05abd755e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-31', 1, '', '', '2022-03-31 21:33:20', '2022-03-31 15:23:47'),
(1507, 'j18qTEyNl9CIhJAnBqJ1AxdjT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Daksha Legal Monthly Digest - January 2022.', '<p><b>Daksha Legal\r\nMonthly Digest - January 2022\r\n</b></p><p><b>Note: After opening the PDF, please click on the link.&nbsp;</b><br></p>', '8dd5a4e54949058cb336a6e3608894c5.JPG', 'b7b799b05afb1dfcbecc5d3f96845503.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-31', 1, '', '', '2022-03-31 18:18:09', '2022-03-31 18:18:09'),
(1508, 'TCBHrGRhpbcDpW3MzFmdjj8aG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Daksha Legal Monthly Digest - February 2022', '<p><b>Daksha Legal Monthly Digest February 2022<br>Please open and click on the link. </b></p><p><b><br></b></p>', '01bc854de684abac13e18dac62d79c56.JPG', 'dd0fcf743884ff9ae369609689b5e6a0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-03-31', 1, '', '', '2022-03-31 19:57:56', '2022-03-31 20:01:57'),
(1509, 'Zt3toGoKtyFNjq5aFtl0qQfYi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'West Bengal Land (Requisition and Acquisition) Act, 1948. Property once vested with the Government cannot be divested without due operation of law. Calcutta High Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Achyutnanda Mishra and others Vs State of West Bengal and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WP 494(W) of 2003 decided on 17 June 2015.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sankar Acharyya.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This writ application being No. 494 (W) of 2003 was initially filed by\r\ntwo petitioners viz. Achyutnanda Mishra and his mother Shyama\r\nSundari Mishra with prayers including prayer (f) of the writ\r\napplication an interim order to the effect of injunction restraining\r\nthe respondents from constructing any building for any other\r\npurpose and/or transferring, alienating the lands in disputes to any\r\nother body and further restraining them from damaging standing\r\njute crops of petitioners. An interim order in terms of prayer (f) was\r\npassed and subsequently extended. State respondents No. 1, 4\r\nand 7 filed affidavit in opposition dated 28.4.2003 against the writ \r\napplication. An affidavit in reply was filed by petitioners on\r\n7.5.2003. During pendency of the writ application the petitioners\r\nfiled a contempt application being No. W.P.C.R.C. 6222 (W) of 2004\r\nwhich has been dismissed as infructuous on 12.9.2012. C.A.N.\r\n3199 of 2007 was filed for addition of party to legal representatives\r\nof petitioner No. 2 Shyama Sundari Mishra due to her death and\r\nsaid prayer was allowed on 22.8.2007. Since no one appeared for\r\nthe petitioner on 16.7.2013 this writ application No. 494 (W) of\r\n2003 was dismissed for default. Subsequently, petitioners filed\r\nC.A.N. 11818 of 2013 for recalling the said dismissal order and\r\nrestoration of the writ application. On 4.4.2014 said C.A.N. 11818\r\nof 2013 has been allowed and the writ application has been\r\nrestored to the file. In said order dated 4.4.2014 order has been\r\npassed for hearing this W.P. No. 494 (W) of 2003 along with C.A.N.\r\n3621 of 2012. Accordingly, both the matters have been heard in\r\npresence of learned counsels for both the parties. Be it mentioned\r\nthat on 4.4.2012 the petitioners have filed C.A.N. 3621 of 2012 for\r\npassing appropriate order directing the respondents to declare\r\naward for the acquired property upon initiation of fresh proceeding\r\nunder the Land Acquisition Act of 1894 and/or relinquish the\r\nexcess land from acquisition and restore back the ownership of the\r\nlands measuring 29 cottahs (21000 Sq.ft.) in plot No. 353 of mouja\r\n– Garh Moyna with the petitioner No. 1 upon extinguishment of\r\nlease.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In these two litigations, matters of requisition and acquisition\r\nof 1.660 acres of land in plot Nos. 423 to 426, 353 to 355, 357 to\r\n359 and 407 of mouja Garh Moyna under P.S. Moyna of the District\r\nEast Midnapore for construction of Prajabarh – Bhagwanpur\r\nArankiarana Public Road in connection with L.A. Case No. 117 of\r\n1977-78 are involved. In the writ application W.P. 494 (W) of 2003\r\npetitioners have made substantive prayers for derequisition and\r\ndelivery back the possession of the land in question in their favour\r\nand/or withdrawal and cancellation of the order of acquisition of \r\nthe land in question in L.A. Case No. 117 of 1977-78 and/or\r\ndenotify the lands found excess after completion of the project.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Some undisputed facts involved in these two matters as\r\nreveals from materials on record and arguments of learned counsels\r\nare mentioned hereunder:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(A) Land in question was requisitioned for construction of public\r\nroad viz. Prajabarh – Bhagwanpur Road and Notification was\r\npublished under Section 3 (1) of the West Bengal Land\r\n(Requisition and Acquisition) Act, 1948 (in short Act- II of\r\n1948). L.A. Case No. 117 of 1977-78 was initiated for giving\r\neffect to the project by way of acquiring that land together with\r\nother lands by Public Works Roads Department.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(B) Accordingly, possession of that land was taken by\r\nGovernment on 4.2.1983.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(C) 80% ad hoc compensation for the land in question was\r\npaid to the petitioners on 30.4.1985 with assurance to pay\r\nresidue at the time of final payment for such acquisition.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(D) Construction of the road has been completed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(E) Some requisitioned land was not utilised for\r\nconstruction of that road.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(F) Notice under Section 4 (1a) of the Act- II was published\r\nacquiring the requisitioned 20.915 acres land including the\r\nentire land in question of these two cases in the Calcutta\r\nGazette on 24.5.1996.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(G) Out of the land in question unused 21000 Sq.ft. land of\r\ndisputed plot No. 353 has been given under occupation of\r\npetitioner No. 1 against payment since 1997. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Petitioners have raised controversy regarding validity of the notice\r\nunder Section 4 (1a) a of The West Bengal Land (Requisition and\r\nacquisition) Act 1948 (in short Act- II of 1948) published in\r\nconnection with the land in question of these matters. According to \r\nlearned senior Advocate for the petitioners said notice has lost its\r\nlife when Act- II of 1948 came to an end on expiry of 31.3.1997 by\r\noperation of law. He has drawn my attention to Section 7 A of ActII of 1948 which was introduced in the Act by way of Amendment by\r\nWest Bengal Act XXV of 1996 with effect from 1.4.1994 wherein a\r\nmandate on the collector had been imposed for making an award\r\nunder Sub-Section 2 of Section 7 within a period of three years from\r\nthe date of publication of the notice in the official gazette under\r\nSub-Section (1a) of Section 4 with an alarm that if such award is\r\nnot made within the period as aforesaid the said notice shall lapse.\r\nHe has submitted that such a notice was published on 24.5.1996\r\nand before expiry of three years the Act- II of 1948 came to an end\r\nwith effect from 31.3.1997 and consequently, said notice was\r\nlapsed. He has further argued that without issuing notice afresh,\r\nacquisition, if any, in respect of the land in question cannot have\r\nany legal value because such award is based on lapsed notice. In\r\ncourse of his arguments learned senior counsel for the petitioners\r\ncited two rulings reported in AIR 2013 Calcutta 1 the case of\r\nMandadori Bhakat Smt. Vs. The State of West Bengal and AIR\r\n2012 Calcutta 47 State of West Bengal Vs. Sabita Mandal. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Learned senior counsel for the petitioners have also claimed that\r\nsince the notice under Section 4 (1a) of the Act- II of 1948 becomes\r\nlapsed, the land in question of these two matters may be released\r\nfrom requisition under Section 6 of that Act. He has further\r\nsubmitted that at least the unutilised land of the requisitioned land\r\nmay be derequisitioned lawfully and the title of the petitioners to\r\nthat property is to be acknowledged. On the other hand, learned\r\nAdditional G.P. for the state has argued that Act- II of 1948 was a\r\ntemporary enactment and it was given life by extension time to time\r\nbut not beyond 31.3.1997. He has drawn my attention to the\r\nmother enactment Land Acquisition Act 1894 in which West Bengal\r\nAmendment Act 1997 has been incorporated. He has drawn my\r\nattention to the provisions of Section 9 (3A) and Section 9 (3B) of\r\nthe Land Acquisition Act 1894 (West Bengal State Amendment). He \r\nhas also submitted that the land in question was duly requisitioned\r\nand 80% ad hoc compensation was paid to the petitioners after\r\ntaking possession over that land for the public purpose of\r\nconstruction of road. He has also argued that the notice under\r\nSection 4 (1a) of Act- II of 1948 was duly published on 24.5.1996\r\nacquiring 20.915 acres land including the plots of land in question\r\nof the present two matters. After such acquisition of requisitioned\r\nproperty under Act- II of 1948, the said Act was not extended\r\nbeyond 31.3.1997 but legal provisions for disposal of such matters\r\nand settlement of matters relating to compensation, State\r\nAmendment has been introduced in Land Acquisition Act (in short\r\nAct- I of 1894). His further arguments is that since the Act- II of\r\n1948 came to an end before expiry of three years from the date of\r\npublication of notice under Section 4 (1a) and Act- II of 1948 , the\r\nclog of Section 7 A cannot affect the validity of the said notice under\r\nSection 4 (1a) of Act- II of 1948 in view of the provisions 9 (3B) of\r\nthe Land Acquisition Act 1894 (West Bengal Amendment). He has\r\nalso argued that the ratio of the cited cases of this Hon’ble Court\r\ncannot be applied in the instant matters. He has distinguished the\r\nreported cases submitting that in the instant case, during the valid\r\nperiod of notice under Section 4 (1a) of Act- II of 1948, West Bengal\r\nAmendment in Land Acquisition Act was introduced inserting the\r\nprovisions of Section 9 (3A) and Section 9 (3B) of the Land\r\nAcquisition Act 1894. Further arguments advanced on behalf of the\r\nstate respondent is that subsequent to such acquisition under\r\nSection 4 (1a) of Act- II of 1948, award has been prepared by the\r\ncollector but not published in connection with the lands in question\r\nof the instant matters although compensation money has been kept\r\nin abeyance awaiting decision of this Hon’ble Court. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">On going through the decision of the Full Bench of this High Court\r\nin State of West Bengal Vs. Sabita Mandal reported in 2012\r\nCalcutta 47 it appears to me a thorough discussion on the relevant\r\nquestions of law relating to requisition and acquisition in the light\r\nof the provisions of West Bengal Land (Requisition and Acquisition) \r\nAct and its Amendment Act of 1996 and also the Land Acquisition\r\n(West Bengal Amendment) Act 1997 has been made. Said\r\ndiscussion is very much helpful for deciding these two matters.\r\nSaid decision was also relied upon by a Division Bench of this High\r\nCourt in Mandodori Bhakat Smt. Vs. State of West Bengal\r\nreported in AIR 2013 Calcutta 1 has been relied on. In the cases\r\ndiscussed in those two rulings notice under Section 4 (1a) were\r\nissued prior to March 31, 1992 but no award was passed before\r\n31.3.1995. Consequently, said notices were treated as lapsed in\r\nview of the provisions of Section 7A of the Act- II of 1948. In the\r\ninstant case, notice under Section 4 (1a) of Act- II of 1948 was\r\npublished on 24.5.1996. As such had there been valied life of the\r\nsaid Act by way of extension beyond 31.3.1997 the notice under\r\nSection 4 (1a) would remain valid till 23.5.1999 even for declaring\r\naward lawfully. Peculiarity in this case is that before 23.5.1999\r\nWest Bengal Land (Acquisition and Requisition) Act 1948 has come\r\nto its end as the said temporary Act was not further extended\r\nbeyond 31.3.1997. Such a situation has been discussed in\r\nparagraph 19 in the case of AIR 2012 Calcutta 47 “Thus, the\r\neffect of the Land Acquisition (West Bengal Amendment) Act\r\n1997 which came into operation on the midnight between\r\nMarch 31, 1997 and April 1, 1997 prevented all those notices\r\nunder Sub-Section (1a) of Section 4 issued after April 1, 1994\r\nfrom being lapsed by giving scope of revival by way of a notice\r\nunder Sub-Section (3B) of Section 9 of the said Act if award had\r\nnot been passed within three years from the date of publication\r\nof such notice and which would otherwise lapse if the said Act\r\nof 1997 would not come into operation at the midnight of\r\nMarch 31, 1997”. Said observation of the Full Bench of this High\r\nCourt is very much relevant and applicable in the instant matters.\r\nSaid matter has been made more clear in paragraph 20 of that\r\njudgment (AIR 2012 Calcutta 47).</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Following the aforesaid Full Bench decision I have no hesitation to\r\nhold and, therefore, I hold that in the instant matters the notice \r\ndated 24.5.1996 under Section 4 (1a) of West Bengal Act- II of 1948\r\nwas not affected by Section 7A of that Act rather it was protected\r\nfrom its lapse by introduction of Land Acquisition (West Bengal\r\nAmendment) Act 1997 in this way. In these matters under my\r\nconsideration the subject matter is distinguishable from the cases\r\ndecided by the Hon’ble Full Bench and Hon’ble Division Bench of\r\nthis High Court in AIR 2012 Calcutta 47 and AIR 2013 Calcutta</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In my view, as soon as the notice under Section 4 (1a) of Act- II of\r\n1948 was published, the land in question was vested in the State\r\nfree from all encumbrances with effect from 24.5.1996. It is the\r\nsettled law that property once vested cannot be divested without\r\ndue operation of law. Since the property in question has been\r\nvested lawfully in the State, there cannot be any question of\r\nderequisition under Section 6 of the West Bengal Act- II of 1948 in\r\nview of end of Act- II of 1948 and amendment (State) of Act- I of\r\n1894 as claimed by the petitioners. In respect of the land in\r\nquestion or portion thereof as claimed by the petitioners, I like to\r\nreiterate that notice dated 24.5.1996 under Section 4 (1a) of the\r\nAct- II of 1948 was not lapsed rather revived under Sub-Section\r\n(3B) of Section 9 of the Land Acquisition (West Bengal Amendment)\r\nAct 1997. Under Section 9 (3B) of the Land Acquisition Act (vide\r\nWest Bengal Amendment 1997) the date of reference in the instant\r\nmatters as per first proviso is 24.5.1996 which is the date of\r\npublication of notice under Sub-Section (1a) of Section 4 of the\r\nWest Bengal land Acquisition Act- II of 1948. In the premises,\r\naccording to law the collector is placed under obligation under the\r\nsecond proviso of the said Section 9 (3B) of the Land Acquisition\r\n(West Bengal Amendment) Act 1997 to make an award under\r\nSection 11 in respect of the land in question only for the purpose of\r\npayment of due compensation to the persons interested in\r\nconnection with the land in question of these matters. It is\r\nsignificant to note that the state respondent has filed some Xerox\r\ncopies of the proceedings relating to final awards in connection with \r\nthe acquired land, awards in respect of the acquired property\r\nincluding the land in question of the instant matters and payment\r\nof compensation made to persons interested in connection with\r\nundisputed properties. Learned counsel for the state respondent\r\nhas claimed that award has been prepared by the collector in\r\nconnection with the lands in question of the instant matters but the\r\naward has not been passed and payment has not been made due to\r\npendency of this case.\r\nIn the instant matters the petitioners have claimed that Executive\r\nEngineer P.W.D. has leased out 21,000 sq.ft. land out of the\r\nrequisitioned land in question of this case in favour of petitioner No.\r\n1 against his payment of Rs.4200. In support of their contention\r\npetitioners have annexed P- 1 to their writ application. In my view,\r\nsaid claim of the petitioners cannot be termed as lease, rather, from\r\nthe said documents it may be said that it is purely a licence (vide\r\npage 30 of the writ petition). By such licence no claim of right and\r\ntitle to the property in question has been vested on petitioner No. 1\r\nafter vesting property in the State free from all encumbrances.\r\nConsidering all the above aspects and considering the facts that the\r\nState respondent has prepared the award for payment of\r\ncompensation to the persons interested in connection with the land\r\nin question of these matters under Section 11 of the Land\r\nAcquisition Act which appears to me as lawful in the circumstances\r\nof publication of notice under Section 4 (1a) of Act- II of 1948 on\r\n24.5.1996 and non-extension of Act- II of 1948 after 31.3.1997 and\r\nintroduction of Section 9 (3B) in the Land Acquisition Act 1894 by\r\nWest Bengal Amendment Act of 1997. As a result, I find and hold\r\nthat these C.A.N. 3621 of 2012 and W.P. 494 (W) of 2003 are liable\r\nto be dismissed but considering the facts and circumstances I am\r\nnot inclined to make any order as to costs. In my view, it will be\r\njustified for the ends of justice for the state respondent to make\r\npayment of balance compensation and interest thereon in\r\naccordance with law to the persons interested with the land in\r\nquestion at present within two months hereof. \r\n Accordingly, both these two W.P. 494 (W) of 2003 and C.A.N. 3621\r\nof 2012 are dismissed without any order as to costs. The state\r\nrespondent is to publish the award in connection with the lands in\r\nquestion and make payment of compensation with interest in\r\naccordance with law within two months hereof, failing which, on\r\nexpiry of two months from this date, the state respondent will be\r\nliable to pay one per centum more interest on the awarded sum\r\nwith effect from 24.5.1996 till the date of payment and will be at\r\nliberty to recover the said excess amount from the person liable for\r\ncausing further delay. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '14c7bf9ab3001bba439ad99456f4dbac.jpeg', 'c783ecca90d7fdb68005e0797e769646.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-03', 1, '', '', '2022-03-31 20:57:28', '2022-04-03 15:15:32');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1512, 'wMvVbMC7Ym2wp0ruDMPWH1xjo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Power of Attorney executed outside India, if not duly stamped, cannot be straightway rejected. The same can be validated by impounding and collecting stamp duty and penalty. Andhra Pradesh High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Pedapudi Alfred Johnson Jeyakaran Jesudasan Vs The State of Andhra Pradesh.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 30906 of 2021 decided on 21 March 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice U. Durga Prasad Rao.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The challenge in this writ petition is to the proceedings of the District Registrar (East), Pantakaluva Road, Vijayawada /3rd respondent vide letter in E1/1930/2021 dated 21.12.2021 whereunder he refused to receive the GPA dated 10.02.2020 executed by writ petitioner’s sister Pedapudi Deena Pricsilla, resident of Canada in favour of the writ petitioner authorizing him to act as her GPA to sell her residential apartment situated in JD Residency, D.No.48-4-2, Ashoka Gardens, Gunadala, Vijayawada on the ground that the GPA was executed on 10.02.2020, notarized on 11.02.2020 and the same was received in India on 06.03.2020 and presented before 3rd respondent on 21.12.2021 i.e., more than three months after the document was received in India for validation purpose, in violation of the Indian Stamp Act, 1899 (for short, ‘the Stamp Act’). Thus, in essence the document was refused on the ground that the GPA was presented after expiry of the limitation period of three months as envisaged in Section 18.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">3. Learned counsel for the petitioner would submit that the GPA was received by the petitioner in the sealed cover to his permanent address in Madipakkam, Chennai on 06.03.2020 and as per Section 18 of the Stamp Act he had time of three months for producing for validation before the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">registering authority and in the meanwhile, COVID-19 pandemic started and consequently lockdown was imposed throughout the country including Tamilnadu as well as Andhra Pradesh and therefore, he could not move out. In those circumstances, he could able to produce the GPA for validation on 16.12.2021. Learned counsel would emphasize that but for the restrictions of the movements of the citizens due to lockdown, he would have presented the GPA before the respondents 3 & 4 in time and in the entire episode, there was no negligence or default much less willful default on his part. Learned counsel argued that the 3rd respondent ought to have considered those aspects and received the GPA for validation considering that the lockdown was imposed by the Central and State Governments while exercising the power under the Disaster Management Act, 2005 and the provisions of the said act will have overriding effect on all other laws or instruments which are inconsistent with the said Act. He would seek to argue that since three months period for validation of GPA was expired during the lockdown period, the 3rd respondent ought to have considered the said aspect and validated the GPA.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(a) Secondly he argued that in the Hon’ble Supreme Court in Miscellaneous Application No.665/2021 in SMW (C) No.3/2020 extended the period of limitation for suits, appeals, applications or proceedings from 15.03.2020 till 02.10.2021 and made it clear that consequently if any balance period of limitation remaining as on 15.03.2020, shall be available with effect from 03.10.2021 and notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation of 90 days from 03.10.2021. Therefore, the limitation period in this case which commenced on 07.03.2020 i.e., on the next day of receiving the GPA in India, would be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">available to him after 03.10.2021 also. In expatiation, he would submit that out of three months limitation period, only 9 days i.e., in between 07.03.2020 and 15.03.2020 were expired and remaining 2 months and 16 days were available to him. This period will be available to him from 03.10.2021. However, in view of the direction of the Supreme Court, the flat period of 90 days will be available to him from 03.10.2021. In that view, the GPA presented by him on 16.12.2021 should have been considered as within time and validated by 3rd respondent. Finally he argued that even assuming that the 3rd respondent did not wish to extend the limitation, he ought to have impounded the document and collected stamp duty penalty as per law. He thus prayed to allow the writ petition.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">4. In oppugnation, while supporting the impugned order of 3rd respondent, learned Assistant Government Pleader for Stamps & Registration would vehemently argue that though admittedly the movement of the citizens was restricted due to lockdown, however, the petitioner has not produced any material to show that his movement was restricted from Tamilnadu to Andhra Pradesh till 16.12.2021, the day on which he belatedly produced the GPA before 3rd respondent. Nextly, he argued that the petitioner cannot take advantage of the order of the Hon’ble Supreme Court in Miscellaneous Application No.665/2021 in SMW (C) No.3/2020 because the said order mainly applies to suits, appeals, applications or other proceedings, which ought to be filed within a specific period of time and could not be filed because of the COVID restrictions and considering the predicament of the parties who were restrained from filing the judicial proceedings in various Courts and Tribunals, the Apex Court extended the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">period of limitation. He argued that the case of the petitioner is not a judicial proceeding and therefore, he cannot take shelter under it. So far as the payment of stamp duty and penalty for validation of the document is concerned, he left it to the order of this Court. </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">6. Point: Admittedly, in this case the petitioner received the GPA from his sister at Canada on 06.03.2020 to his permanent address at Madipakkam, Chennai and he presented the document for validation only on 16.12.2021 and in the impugned order the 3rd respondent having observed that it was presented before his office only on 21.12.2021 i.e., after expiry of time prescribed in Section 18 of the Indian Stamp Act, held that the GPA cannot be validated. In this regard, Section 3 of the Indian Stamp Act deals with instruments which are chargeable with duty</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(a) Thus, clause (c) is germane for our purpose and it says that every instrument mentioned in schedule 1 or schedule 1-A other than bill of exchange or promissory note which was not previously executed by any person and is executed outside India on or after 01.07.1899 relates to any <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">property situate, or to any matter or thing done or to be done, in India and is received in India shall be chargeable with duty of an amount indicated in that schedule as proper duty. As per Article 48 of the Schedule 1, a power of attorney is chargeable with duty as mentioned in that Article. Therefore, if a Power of Attorney is executed outside India and received in India, it is excisable to stamp duty.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">7. As can be seen, such instrument which was not being a bill of exchange or promissory note executed only outside India and not duly stamped, may be presented within three months after it has been first received in India before the Collector for stamping such document as per the law. It goes without saying that if a document which was executed out of India and was duly stamped with a non-judicial stamp before or at the time of its execution, Section 18 will have no application.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">8. Be that it may, in the instant case, the petitioner has not claimed that the GPA dated 10.02.2020 which was executed at Canada was already duly stamped with Indian non-judicial stamp. Hence, he admits that the procedure envisaged in Section 18 of the Indian Stamp Act needs to be followed. However, his case is that the three months period as laid down in Section 18 has no application, firstly because during the relevant period and also till he produced the document before 3rd respondent on 16.12.2021, he was prevented by the lockdown imposed by the Central and State Governments due to COVID-19 pandemic. </span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">9. I gave my anxious consideration to the above arguments. It is a wellknown fact that since March 2020 the entire world was shuddered and fear stricken due to Covid-19 pandemic and in order to take effective measures to prevent the spread of Covid-19 pandemic, the Central and State Governments have declared it as Pandemic and issued guidelines under the Disaster Management Act, 2005. One of the guidelines which is germane for our purpose is the lockdown imposed by the Central and State Governments. The lockdown no doubt restricted the movement of the citizens throughout the country in different spells. It is also true that transport services like air, rail, roadways etc were suspended with few <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">exceptions.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">10. Therefore, the provisions of the said Act shall have the overriding effect on all the other laws and instruments which are inconsistent with the said Act. To that extent there is no demur. However, as rightly contended by the learned Assistant Government Pleader, the petitioner has not produced any relevant material to show that from 07.03.2020 till 16.12.2021 there were continuous lockdown orders imposed by the Tamilnadu and A.P. State Governments, due to which he could not move out. Therefore, there is no material before this Court to hold that there was a continuous lockdown imposed in Tamilnadu as well as in A.P. restricting the movement of the petitioner. Hence, the petitioner cannot bask under the said ground. (a) The next ground sought to be projected by the petitioner is that in view of the orders of the Supreme Court in Miscellaneous Application No.665/2021 in SMW (C) No.3/2020, the limitation period would be extended to him for three months after 03.10.2021.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">12. In Malaysian Airlines Systems BHD v. STIC Travels (P) Ltd.2 , a GPA dated 15.02.1997 executed at Kuala Lumpur was not properly stamped according to the Indian Stamp Act and on that ground when the said GPA was produced in an application filed under Section 11 of the Arbitration & Conciliation Act, 1996, it was objected. In that context, the Hon’ble Apex Court dealt with the aspect of impounding the said Power of Attorney which was executed outside India and presented in India for using the proceedings before the Supreme Court. The Hon’ble Apex Court considering the provisions under Sections 3(c), 33 and Article 48 of Schedule I of the Stamp Act, impounded the power of attorney and directed the petitioner to deposit due stamp duty and also directed the Registrar Judicial to make an endorsement upon production of the challan from the treasurer that the document was impounded by the Court and stamp duty and penalty has been paid and thereupon to place the document before the Court.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">13. In that view of the matter, though the instrument was executed outside India and it was not duly stamped and presented before 3rd respondent within the period of three months, the said authority can impound the same and collect the required stamp duty and penalty and validate the document. Instead the action of 3rd respondent in rejecting the document cannot be countenanced.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">14. Accordingly, this writ petition is allowed and the respondents 3 & 4 are directed to receive the GPA dated 10.02.2020 executed in favour of the petitioner and if it not duly stamped, then collect the required stamp duty and penalty as per law and validate the aforesaid GPA and release the document within two weeks from the date of receipt of a copy of this order. No costs. </span></p>', '8096b74db64a95775267628c5d9f9943.jpg', '0b940aab21dfc95558b412af0f1b6d0a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-07', 1, '', '', '2022-04-01 18:16:17', '2022-04-07 06:50:58'),
(1513, 'v2aGZ5RUUq3OeYFqAgLIM7O5e', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A society registered under the Societies Registration Act can sue and be sued only in terms of its bye­laws. Suit cannot be entertained without authorisation under the bye-laws. Supreme Court.    ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>P. Nazeer Vs Salafi Trust and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3132-3133 of 2016 decided on 30 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemat Gupta and Justice V. Ramasubramanian.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. Aggrieved by a common Judgment delivered by the High Court of Kerala in two Civil Revision Petitions filed under the proviso to subsection (9) of Section 83 of the Waqf Act, 1995, reversing the judgment of the Waqf Tribunal and decreeing the suit of the respondents in entirety, but dismissing their own suit, the appellants have come up with the above civil appeals.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The sole appellant in one of the above appeals by name Shri P. Nazeer was the defendant in a suit O.S No.10 of 2004 filed by the respondents 1 and 2 herein, on the file of Waqf Tribunal, Kollam. The three appellants in the other civil appeal were the plaintiffs in O.S No.9 of 2004 filed on the file of very same Waqf Tribunal, Kollam. Since the appeals on hand arose out of cross­suits between the same parties and also since the subject matter of the dispute relates to the right to management and administration of a mosque and its properties, it will be easy to appreciate the facts<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. It is necessary to bring on record, before proceeding further,  that document No.2 in respect of which the appellants herein sought a declaration of nullity, in their own suit O.S No.9 of 2004, was a certificate issued by the Chief Executive Officer of Kerala Waqf Board dated 24.03.2004 in favour of Salafi Trust.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. In other words the appellants in the second civil appeal before us, namely,</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) Salafi Juma Masjid Mahal Committee;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) its President K.M. Syed; and</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii) its Secretary P. Nazeer, sought two sets of reliefs from the Waqf Tribunal. They were</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) to declare the certificate dated 24.03.2004 issued by the Chief Executive Officer of the Kerala Waqf Board   in   favour   of   Salafi   Trust   as   null   and   void;   and </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)  for   a permanent injunction restraining the defendants from interfering with their management and administration of the mosque and  its properties. Though the Tribunal granted the relief of injunction, the Tribunal refused the relief of declaration.However, these three appellants did not choose to challenge the Judgment of the Waqf Tribunal rejecting the relief of declaration.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Similarly the respondents 1 and 2 herein sought two sets of reliefs from the Tribunal, namely,</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) for a declaration that the second respondent A.K. Babu is the Secretary of the first respondent­Trust namely Salafi Trust; and </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)  for a permanent injunction restraining Shri P.Nazeer, the Secretary of the Mahal Committee from interfering with their right of management of the mosque. Though the Tribunal granted the relief of declaration, it did not grant the relief of injunction.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>7. Therefore, </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(i)  Salafi Trust; and </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(ii)  its Secretary A.K. Babu filed two civil revision petitions before the High Court of Kerala under the proviso to Sub­section (9) of Section 83 of the Waqf Act, 1995. The High Court allowed both the civil revision petitions, dismissing O.S No.9 of 2004 in entirety and decreeing O.S No.10 of 2004, as prayed for. Therefore, the group which we may conveniently refer to as ‘Mahal Committee’ has come up with the above civil appeals.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. The case of the appellants before the Waqf Tribunal was</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) that Salafi Juma Masjid is a public waqf registered with the Kerala Waqf Board;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) that though the mosque was constructed in a vacant plot given by Salafi Trust, the management and the administration of the waqf was with the Mahal Committee;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii) that as per the law relating to waqfs, the person who manages the waqf is the Mutawalli;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv) that upon a complaint lodged by the appellant Shri P. Nazeer on behalf of the Mahal Committee, an enquiry was held by the Waqf Board; (v) that though the Enquiry Officer recorded a finding that the management and administration of Salafi Masjid was with the Mahal Committee of which P. Nazeer was the Secretary, the Chief Executive Officer of the Waqf Board wrongfully issued the certificate dated 24.03.2004; and</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(vi) that, therefore, the said certificate should be declared as null and void and a permanent injunction should be issued restraining Salafi Trust   and its men from interfering with the management and administration of the mosque. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. Interestingly, the Waqf Tribunal refused to declare the Certificate dated 24.03.2004 as void, on the ground that undisputedly, Salafi Trust got the waqf registered under Section 36 of the Waqf Act and that admittedly Mr. A.K. Babu was the Secretary of the Trust. But the relief of injunction was granted by the Waqf Tribunal on the ground that the management and administration of the mosque and its properties was with the Mahal Committee. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. In the revision, the High Court found</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) that Mahal Committee is not a registered entity and hence not entitled to file a suit;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) that the suit was not even filed in a representative capacity after following the procedure prescribed under Order 1 Rule 8 CPC;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii) that though the challenge was to the management and administration of a mosque and its immovable properties, there was no schedule of property attached to the plaint in O.S No.9 of 2004; and (iv) that as per the evidence on record, it was the Salafi Trust which was in  management and administration of the mosque and its properties. On the basis of these findings, the High Court decreed the suit filed by the respondents in entirety and dismissed the suit filed by the appellants in full.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. Assailing the order of the High Court, Shri R. Basant, learned senior counsel contended that the High Court exceeded its revisional jurisdiction and decided the  lis  as though it was a regular appeal. Relying   upon   the   Constitution   Bench   decision   of   this   Court   in Hindustan   Petroleum   Corporation   Limited  vs.  Dilbahar   Singh,  the   learned   senior   counsel   contended   that   wherever   the   statute employed   the   expressions   “appeal”   and   “revision”,   the   expression “revision” is meant to convey the idea of a much narrower jurisdiction. Sub­section (9) of Section 83 of the Waqf Act declares that no appeal shall lie against any decision given by the Waqf Tribunal. Therefore, the learned senior counsel contended that the proviso to Sub­section (9) which confers a revisional jurisdiction upon the High Court, is meant to confer a jurisdiction narrower than the jurisdiction of anappellate Court. In the case on hand, according to the learned senior counsel for the appellants , the High Court appreciated the evidence independently and recorded findings on questions which were not even framed as issues by the Tribunal and that, therefore, the impugned order of the High Court is completely contrary to law. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. While we agree with the learned senior counsel for the appellants that the revisional jurisdiction conferred by the proviso to Sub­section (9) of Section 83 is narrower than the jurisdiction that could have been conferred upon an appellate court, we do not think that the impugned order of the High Court suffers from the vice sought to be attributed by the learned senior counsel for the appellants. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. Admittedly, the Mahal Committee which is appellant No.1 in one of the two appeals on hand, was plaintiff No.1 in O.S No.9 of 2004. In the plaint in O.S No.9 of 2004, there was not even a whisper about the corporate status of the Mahal Committee. In the written statement filed by Salafi Trust, they raised a specific contention that plaintiff No.1 was not a legal entity and that it is an illegal association of certain  individuals and that there was not even a pleading as to whether there were any bye­laws and as to how plaintiffs No.2 and 3 became the President and Secretary respectively. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. Unfortunately, the Waqf Tribunal, in paragraph 17 of its Judgment held that plaintiff No.1 is a legal entity, entitled to sue and be sued. This was solely on the ground that plaintiff No.1 (Mahal Committee) was one of the Sakha units affiliated to a registered society by name Kerala Naduvathil Mujahideen (‘KNM’ for short). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. The aforesaid finding is completely contrary to law. A society registered under the Societies Registration Act is entitled to sue and be sued, only in terms of its bye­laws. The bye­laws may authorise the President or Secretary or any other office bearer to institute or defend a suit for and on behalf of the society. Under section 6 of the Societies Registration Act, 1860, “every society registered under the Act may sue or be sued in the name of President, Chairman, or Principal Secretary, or trustees, as shall be determined by the rules and regulations of the society and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion”. Even the Travancore­ Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, which is applicable to parts of Kerala carries a similar provision in section 9. Therefore, unless the plaintiff in a suit which claims to be a society, demonstrates that it is a registered entity and that the person who signed and verified the pleadings was authorised by the bye­laws to do so, the suit cannot be entertained.  The fact that the plaintiff in a suit happens to be a local unit or a  Sakha  unit of a registered society is of no consequence, unless the bye­laws support the institution of such a suit.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. The Waqf Tribunal committed a gross illegality, first in not framing an issue about the status of the Mahal Committee and then in recording a finding as though the local unit of a registered society which is in enjoyment of affiliated status, was entitled to sue. Such an illegality committed by the Tribunal was liable to be corrected by the High Court under its revisional jurisdiction and hence the fulcrum of the argument of the learned senior counsel for the appellants, has to fall to the ground. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">17. As a matter of fact, the Mahal Committee did not file any revision against the rejection by the Waqf Tribunal of the relief of declaration regarding the certificate dated 24.03.2004 issued by the Chief Executive Officer of the Kerala State Waqf Board. In the plaint filed by the Mahal Committee in OS No.9 of 2004, they assailed the certificate, on the ground that the said certificate completely repudiated the findings  of the Enquiry Officer that the Mahal </font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Committee was in management and administration of the Masjid. In other words the appellants herein understood, and rightly so, that the certificate dated 24.03.2004 sought to dislodge their claim to be in management and administration of the mosque. Therefore, the rejection by the Waqf Tribunal, of the prayer for declaring the said certificate to be null and void was fatal to their claim. Yet the appellants did not choose to file a revision. Today they cannot take umbrage under the fact that in any case,   the   Tribunal  found the to be in management and administration of the waqf.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. Though the High Court did not put against the appellants, their failure to file a revision, we think it is a crucial fact which cannot be overlooked. This is for the reason that the document dated 24.03.2004 is a certificate of registration issued under Section 36 of the Waqf Act, 1995. Once it is admitted that it was the first respondent namely the Salafi Trust who got the mosque registered as a waqf under Section 36 of the Act and once it is admitted by the appellants in paragraph 2 of their plaint in OS No.9 of 2004 that the mosque was constructed in a vacant plot demised by Salafi Trust, it was not open to them to go against the statutory prescriptions and claim to be the Mutawalli. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. Though Shri R. Basant, learned senior counsel for the appellants also invited our attention to certain other aspects in the impugned judgment, we do not think that we need to go into each of these issues when we are convinced that the High Court exercised its revisional jurisdiction correctly and justly.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 20. Therefore the appeals are dismissed.   There shall be no order to costs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8bc37750c460d079776f64ae15effad8.jpeg', 'b573dab962f671648429567c8bd81261.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-03', 1, '', '', '2022-04-01 18:52:33', '2022-04-03 22:00:35');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1514, 'pUwbiDlTZ0SEvtJzAI39VAkHR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Husband can claim maintenance from wife under Section 25 of the Hindu Marriage Act. Bombay High Court.   ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bhagyashri Vs Jagdish.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 2527 of 2021 decided on 26 February 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Bharati Dangre.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The petitioner-wife is aggrieved by the order passed by the\r\n2nd Joint Civil Judge, Senior Division, Nanded, dated 08/08/2017\r\nand also by the order dated 06/12/2019 passed below Exh.-23 in\r\nthe very same proceedings. The impugned orders are assailed in\r\nthe backdrop of the common fact that the said orders are not\r\nsustainable, since the relationship between the husband and wife\r\nis already extinguished by a decree of divorce passed on\r\n17/01/2015.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The marriage between the petitioner and the respondent\r\nwas solemnized on 17/04/1992 and, on the wife filing a petition\r\nunder Section 13 of the Hindu Marriage Act, 1955 (for short,\r\n“the Act of 1955”) seeking dissolution of marriage on the\r\nground of cruelty and desertion, the petition was allowed and the\r\nmarriage between the parties came to be dissolved on\r\n17/01/2015 by the 2nd Joint Civil Judge, Senior Division,\r\nNanded. The decree of divorce was directed to be drawn\r\naccordingly.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3..... After passing of the decree of divorce, the respondenthusband filed Hindu Marriage Petition No.46 of 2015 claiming\r\nfor grant of permanent alimony from the petitioner-wife at the\r\nrate of Rs. 15,000/- per month. This application being filed\r\nunder Section 25 of the 1955 Act, pleaded that since the\r\nmarriage being dissolved by a decree of divorce, the application\r\nis filed as the respondent-husband is not having any source of\r\nincome and the petitioner-wife, on the contrary had acquired the\r\neducational qualification of M.A., B.Ed. and, on completion of\r\neducation, is serving at Shri Datta Mahavidyalaya, Talni, Taluka\r\nHadgaon. It is specifically pleaded that in order to encourage the\r\nwife to obtain the degree, the husband managed the household\r\naffairs, keeping aside his own ambition. It is pleaded that prior <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to her employment, she was taking tuition classes and earning\r\nincome for the family. The respondent-husband claims that he\r\nwas working with the father of the petitioner-wife at Manatha\r\nand, with the aid and assistance of her parents, he would\r\ncontribute some amount for the well being of the family.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The respondent-husband pleads that he suffered\r\nhumiliation and harassment in the marital relationship as the\r\npetitioner-wife, with a malafide and dishonest intention, filed\r\npetition for divorce, which was decreed. It is specifically\r\npleaded that the respondent is neither doing any job, nor does he\r\npossess any moveable or immoveable property or has any\r\nindependent income. It is also pleaded that he is also not\r\nkeeping good health and unable to secure any job for earning his\r\nlivelihood. As against this, the petitioner-wife earns a salary of\r\nRs.30,000/- per month and also possesses valuable household\r\narticles and immoveable properties.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. In the backdrop of the aforesaid averments in the petition,\r\nthe respondent-husband claims maintenance of Rs.15,000/- per\r\nmonth from the wife, from the date of filing of the petition.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. In the said marriage petition, an application is filed by the\r\nrespondent-husband under Section 24 of the 1955 Act, claiming\r\nmaintenance pendente lite, the application being registered as\r\nExh.-14.\r\nIn the said application, interim maintenance, till disposal of\r\nthe main proceedings filed by the respondent-husband under\r\nSection 25 of the 1955 Act, claiming permanent alimony /\r\nmaintenance, is sought.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The claim of the husband was strongly opposed by the\r\npetitioner-wife, by submitting that the husband is running a\r\ngrocery shop and he also owns an auto rickshaw and earns\r\nincome by leasing out the same. It is denied that the husband is\r\ndependent upon the wife and it is specifically pleaded that there\r\nis a daughter born out of the wed-lock, who is dependent on the\r\nwife and, therefore, the claim of maintenance by the husband is\r\nprayed to be rejected, with costs of Rs.10,000/-.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. While passing the above order, the learned Judge records\r\nthat, since the proceedings filed under Section 25 of the Act of\r\n1955 are pending, the application under Section 24 is\r\nmaintainable and by relying upon the facts and figures presented\r\nand by recording that whether the applicant-husband is entitled\r\nfor claiming permanent alimony from the respondent-wife, will\r\nbe decided on merits during trial, the application claiming\r\ninterim maintenance, came to be granted.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Another order assailed before me, is passed below Exh.-\r\n23, which takes the earlier order passed by the learned Judge on\r\n08/08/2017 forward, in the wake of the request of the respondent\r\nthat a warrant for recovery of arrears may be issued against the\r\npetitioner-wife and the amounts due and payable, be deducted\r\nfrom her salary and deposited before the court</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Heard the learned counsel Mr. Tombre for the petitionerwife, who would submit that since the marriage between the\r\npetitioner and the respondent is dissolved by a decree of divorce,\r\nthe proceedings for permanent alimony and maintenance under\r\nSection 25 of the Act of 1955, are not maintainable and by\r\nreferring to the wording used in the said section - “husband or\r\nthe wife”, the submission advanced is, on dissolution of\r\nmarriage, no such application can be entertained. The learned\r\ncounsel would further submit that by directing the wife to pay\r\nmaintenance to the husband after dissolution of marriage by a\r\ndecree of divorce, would amount to traversity of justice and once\r\nthe relationship between the husband and wife is severed by a\r\ndecree of divorce, there cannot be any claim made by anyone of\r\nthem against each other.\r\nPer contra , the learned counsel Mr. Mewana would\r\nsubmit that the provision contained in Section 25 of the Act of\r\n1955 do not depend upon the outcome of the relationship\r\nsubsequent to divorce, since the section use the word “at any\r\ntime subsequent thereto” and therefore, the embargo that the\r\napplicant as the husband, after dissolution of marriage cannot <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be denied, the benefit flowing from Section 25 of the Act of\r\n1955.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">12. At the outset, I must state that the impugned orders have\r\nbeen passed by the learned judge on an application filed under\r\nSection 24 of the Act of 1955, claiming maintenance pendente\r\nlite. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">By reading of the aforesaid, it is clear that the application\r\ncan be filed under Section 24 of the Act of 1955, in the pending\r\nproceedings under the Act and it may cover proceedings under </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 25 of the Act of 1955 for permanent alimony and\r\nmaintenance.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. A conjoint reading of both the provisions, would reveal\r\nthat both the sections in the Act of 1955 are enabling provisions\r\nand confer a right on the indigent spouse to claim maintenance\r\neither pendente lite or in the nature of permanent alimony and\r\nmaintenance.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. The words applied in Section 25 of the Act of 1955 permit\r\nany court exercising jurisdiction under this Act, i.e. under\r\nSections 9 to 13, at the time of passing any decree or at any time\r\nsubsequent thereto, on an application made to it, by either of the\r\nspouse pay to the applicant for her/his maintenance, either gross\r\nsum or monthly or periodical sums for not exceeding the life of\r\nthe applicant, having regard to the income and the other\r\nproperty, etc. The term used “at any time subsequent thereto”\r\ncannot be made redundant, by giving constricted meaning to the\r\nwords “wife or husband”, applied in Section 25 of the Act of\r\n1955 and this can be said so, in the wake of sub-sections (2) and\r\n(3) of Section 25, which empower the court to vary, modify or\r\nrescind the amount of permanent alimony and maintenance as\r\nawarded under sub-section (1) and, on existence of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">circumstances set out in sub-section (3), order granting\r\npermanent alimony and maintenance can be varied and modified\r\nor rescinded as the court may deem just and proper.\r\nSub-sections (2) and (3) of Section 25 are thus indicative\r\nof the fact that if at the time of decree, an application is made or\r\nat any subsequent time of the passing of the decree, an\r\napplication is made, claiming maintenance by either of the\r\nspouse, the court is empowered to grant the claim, which is just\r\nand proper and the payment can be secured if necessary, by\r\ncreating charge on the immoveable property of the respondent.\r\nIf sub-section (1) is given a restrictive meaning as attempted to\r\nbe canvassed by Mr. Thombre, then the words used “at any time\r\nsubsequent thereto” would become redundant, which cannot be\r\nthe intention of the legislature. The legislature does not use the\r\nwords in vacuum and when it specifically permits the exercise of\r\npower of granting permanent alimony and maintenance on the\r\ncourt exercising jurisdiction under the Act, at the time of passing\r\nof the order or at any time subsequent thereto, it is open for the\r\ncourt to grant such maintenance at the time of passing the decree\r\nor even subsequent to the decree being passed. The provision\r\ncannot be read to constrict it, if the relationship between the\r\nhusband and the wife is severed and as per Mr. Thombre, on\r\ndivorce, they no longer remain husband and wife. Section 25 is\r\nnot only restricted to a decree of divorce, but the decree can also\r\nbe for restitution of conjugal rights under Section 9, the decree\r\ncan also be for judicial separation under Section 10 or the decree.  </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. The provision of maintenance / permanent alimony being a\r\nbeneficial provision for the indigent spouse, the said section can\r\nbe invoked by either of the spouse, where a decree of any kind\r\ngoverned by Sections 9 to 13 has been passed and marriage tie is\r\nbroken, disrupted or adversely affected by such decree of the\r\ncourt. The scope of Section 25 of the Act of 1955 cannot be\r\nconstricted by not making it applicable to a decree of divorce\r\nbeing passed between the husband and wife.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. In the wake of the above observations, since Section 25\r\nhas to be looked upon as a provision for destitute wife/husband\r\nthe provisions will have to be construed widely so as to salvage\r\nthe remedial intailments, the contention of the learned counsel\r\ncannot be accepted and it is open for the court to decide the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">application filed by the husband under Section 25 of the 1955\r\nAct, seeking monthly maintenance, by way of final proceedings,\r\npending which, the application for interim maintenance filed\r\nunder Section 24 of the Act of 1955, has been rightly entertained\r\nby the learned Judge and the husband has been held entitled to\r\ninterim maintenance while the proceedings under Section 25 are\r\npending.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>19. Both the impugned orders do not warrant any interference\r\nand, by upholding the same, the writ petitions are dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b90794478e9e282bd4b6bc2eddb71db7.jpeg', '90493e8499be7bda07e109cac4cc0dc3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-01', 1, '', '', '2022-04-01 19:04:00', '2022-04-01 08:44:31'),
(1515, 'sBvz33B7wAr8c7Hz4zERDjZWK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Person in illegal possession of land already acquired by Government cannot claim any right though his name is entered in the revenue records. Allahabad High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Harish Chandra Vs Union of Indian and others.<br></b></font><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">Writ-C 16412 of 2018 decided on 24 April 2019.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">Justice Pankaj Kumar Jaiswal and Justice Yogendra Kumar Srivastava</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 2. By means of the present writ petition, the petitioner has made a prayer for quashing the order dated 15.02.2018 whereby the representation filed by the petitioner pursuant to a direction issued   by   this   Court   in  Writ­C   No.45244   of   2017   (Harish Chandra   Vs.   Union   of   India   &   5   Ors.)  was   considered by a Committee constituted in terms of an order dated 19.05.2015 passed in PIL No.11539 of 2015 (Ajit Singh Vs. Union of India & Ors.)1 decided on 06.07.2017, and the same has been disposed of. The petitioner has made a further prayer to stop the process of demarcation of the land of gata no.264(M) area 1­9­10 (0.398 hectares) and gata no.265(M) area 6­0 (1.897 hectares) totaling 2.295 hectares, and not to interfere in the peaceful possession of the petitioner on the aforesaid bhumidhari land.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. The factual controversy involved in the present case, as noticed in the judgment in PIL No.11539 of 2015 and connected matters, is that in the year 1950, by issuing notifications under Sections 4 and 6 of the Land Acquisition Act, 18942 , land at Tilpat,   measuring   4294.38   acres   was   acquired   for   the   Union Ministry of Defence to develop a Firing and Bombing Range for the Air Force. The land is situate in two States, namely, Haryana and Uttar Pradesh. In these petitions, we are concerned with land   measuring   482   acres   (for   short,   \'the   land   in   question\') situate in Village \"Nagli Nagla\" and \"Nagli   Sagpur\", Pargana Dadri, District Bulandshahr, now in district Gautam Budh Nagar, Uttar Pradesh. Out of 482 acres comprising the land in question, 105 acres is situate in Village Nagli Nagla and 377 acres in Village Nagli Sagpur. The notification under Section 4 read with Section 17 of the Act was published on 6 November 1950, whereas the notification   under Section 6 was  issued  on 7 November 1950. Possession was taken over by the Defence Estates Officer, Agra  on 23 November   1950,   applying   the urgency clause under Section 17 of the Act and, as stated by the Defence Estates Officer, the name of the Military Estates Officer (Air Bombing Range) was also mutated in the revenue record.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. It was also taken note of that before handing over possession of the land in question to the Military Estates Officer, Agra Circle, the  entire amount towards compensation was deposited with the Collector, Bulandshahr.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23. Pursuant to the directions issued in terms of the aforementioned order dated 06.07.2017, the representation of the petitioner was examined by the Committee constituted in terms of the order dated 19.05.2015 passed in the PIL aforesaid and upon considering the facts and the material on record it was disposed of on 15.02.2018 by observing that the land bearing gata no.264M, area  0.398 hectares and  gata no.265M, area 1.897 hectares i.e. total 2.259 hectares wherein the petitioner claimed to be recorded as bhumidhar of transferable rights, was in fact part of the land which had been acquired for the air bombing range, and the petitioner was in illegal occupation over the same.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>24. The principal grounds raised by the petitioner to challenge the aforementioned disposal of his representations on 15.02.2018 are that he is recorded bhumidhar in respect of the land in question, and that the said land was not included in the acquisition proceedings initiated terms of notification issued in the year 1950, and that he has regularly paid land revenue in respect of the said plots and accordingly   the  order dated 15.02.2018 is illegal.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>27. It is further submitted that pursuant of the directions issued by this Court in Writ­C No.45224 of 2017 decided on 21.09.2017 and also  the directions of this Court issued vide order dated 19.05.2015  in PIL No.11539 of 2015, the representation of the petitioner was duly  considered by the Committee on 15.02.2018, and opportunity of personal hearing was given to the petitioner and his sons who were present and after due consideration of the facts and the material on record the order has been passed by the Committee. It is also submitted that a perusal of the documents submitted by the petitioners revealed variation in the area of land between the two representations filed by the petitioner. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>28. It was also submitted that despite adequate opportunity, the petitioner failed to provide any substantive material evidence suggesting title of ownership in respect of 0.328 hectares of land in question before the Committee, and as such the order dated 15.02.2018 in terms  of which he has been held to be an unauthorized occupant of the land measuring 0.328 hectares lying within the portion of the 126­10­0 bigha of the Village Nagli Nagla demarcated by the Officer of the Revenue Department in the month of April,2015, suffered from no illegality.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>29. Respondent nos.1 to 4 have also placed reliance upon an affidavit dated 07.02.2019 filed by the said respondents wherein reference has been made to a report dated 24.04.2015 submitted on behalf of the State Government after demarcation proceedings conducted by a joint revenue team, and comparative tables of the old and new khasra numbers as provided by Assistant Revenue Officer, Gautam Budh Nagar  dated 04.08.2015 have been placed on record, and on the basis of the same it has been submitted that the land bearing gata no.264(M) measuring area 1­0­0 bigha is part of khasra no.246, which in turn was notified for acquisition in terms of land acquisition notification dated 05.11.1950 issued under Section 4 of of the Act, 1894 and also the declaration dated 07.11.1950 issued under Section 6, and as such the same forms part of the air bombing range.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>31. From the material on record it is evident that the representation of the petitioners was duly examined by the Committee constituted vide order dated 19.05.2015 and it has been held that the land bearing gata no.364M  area   0.398 hectares and gata no. 365M area 1.897 hectares i.e. total area 2.259 hectares, over which the petitioner claims to be recorded as bhumidhar with transferable rights was in fact part of the land which had been acquired for the air bombing range and the petitioner was in illegal occupation thereof. It was further held that   the  petitioner\'s claim to title is in respect of the plot measuring 0.328 hectares which lies within the portion of 126­ 10­0 bigha of Village Nagli Nagla demarcated by the Revenue Department in April 2015. The representation of the petitioner having been duly considered by the Committee on 15.02.2018 after providing opportunity of personal hearing to the petitioner and his sons who were present, and after perusing the material on record, the order passed by the Committee cannot be faulted with.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>32. Furthermore, the records clearly indicate that despite adequate opportunity the petitioner failed to provide any substantial material evidence suggesting title of ownership in respect of 0.328 hectares of land  in question before the Committee and, therefore, the order dated 15.02.2018 in terms of which he has been held to be unauthorized occupant of the land measuring 0.328 hectares lying within the portion of 126­ 10­0 bigha in Village Nagli Nagla demarcated by the Revenue Department in April 2015 did not suffer from any illegality.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>33. The report dated 24.04.2015 submitted on behalf of the State Government after demarcation proceedings conducted by a joint revenue team and comparative tables of the old and new khasra numbers as provided by the Revenue Authorities also go to show that the land bearing gata no.264M was part of khasra no.246, which in turn was notified for acquisition in terms of land acquisition notification  dated 05.11.1950 issued  under Section 4 of the Act, 1894 and also the declaration dated 07.11.1950 issued  under Section  </b></font><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">6,   and   as  such the same undisputedly forms part of the air bombing range.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">34. In this view of the matter also the claim of the petitioner that the land in question was not included in the acquisition proceedings initiated in terms of the notifications issued in the year 1950, cannot be accepted.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><br></b><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">35. As regards the assertion made by the petitioner that he is the recorded tenure holder in respect of the land in question and that he has regularly paid land revenue, the said contention is liable to be rejected for the reason that entries in the revenue records  only raise a  certain presumption with regard to possession, and in view of the facts and circumstances of the present case, in particular the findings on the questions of facts recorded at various stages of the litigation which clearly go to show that large scale manipulation and fabrication of entries in the course of preparation of the record of rights of the village in question had been made in collusion with the revenue officials, the question of acting on such a presumption would not arise.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">36. This  Court may also take into consideration that it is settled law that the revenue records do not confer title and even if the entries in the revenue record of rights carry value that by itself would not confer any title upon the person claiming on the basis of the same.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">45. We may take notice of the fact that this Court in its judgment dated 19.05.2015 passed in PIL No.11539 of 2015 and the connected matters, in respect of persons claiming similar rights as the petitioner herein, had clearly held them to be trespassers/encroachers over the land in question.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>46. This Court may take note of the fact that even in respect of petitioners claiming relief by asserting their title on the basis of sale deeds which had been duly registered, in the writ petitions which were decided along with PIL No.11539 of 2015,  it was held that mere registration of a document per se does not create any new title and the same is governed by the principles enunciated by the maxim  nemo dat quod non habet, i.e. no person can transfer a better title than what he possesses in the property so transferred. Mere registration of a conveyance deed cannot come in the way of the government in asserting its right, and title to the land, and claim the property back, in accordance with law. In view of the aforesaid, the petitioners therein having not been able to demonstrate any right, title or interest in the property   in   their  possession were held to be enchroachers/trespassers.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>47. In the present case also the petitioner has not been able to substantiate his plea on the basis of any document on record with regard to his right, title or interest in the property. No material had been placed on record to demonstrate as to how the petitioner came into possession over land in respect of which acquisition was completed in terms of notifications issued in the year 1950. The legal position in this regard has been discussed in detail in the judgment dated 06.07.2017 passed in PIL No.11539 of 2015  and the connected matters by a Coordinate Division Bench of this Court and we find no reason to take a different view.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>48. It has been brought to our notice that the appeal, Special Leave to Appeal (C) No.20654 of 2017 (G.S. Raghav Vs. Union of India & Ors.)  filed against the aforementioned judgment dated 06.07.2017 was dismissed by the Supreme Court vide order dated 21.08.2017.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>49. In view of the aforementioned discussion, we are not inclined to exercise the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>50. The present writ petition is devoid of merits and is accordingly dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8e1d9ba5818aa374594abf137ce99911.png', '0640164b71b6e049e6e45c480e35b163.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-03', 1, '', '', '2022-04-01 20:13:27', '2022-04-03 06:27:23'),
(1517, 'CEhJl8Xpdx7ZnyznySM05Fdci', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'High Court can modify bail conditions in exercise of inherent Jurisdiction under Section 482 Cr.P.C. Madhya Pradesh High Court.   ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jadish Arora Mohan and others Vs Union of India.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>MCRC 4923 of 2022 decided on 31 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sheel Nagu and Justice Manider S. Bhatti.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The inherent powers of this Court are invoked u/S.482 of Cr.P.C.\r\nseeking modification of final order dated 18.08.2020 passed in MCRC.\r\nNo.24219/2020 to the extent that said order of bail u/S.439 of Cr.P.C.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Learned counsel for the petitioners in support of aforesaid\r\ncontention has relied upon the order dated 08.04.2021 passed by\r\nCoordinate Bench of this Court in MCRC. No.19222/2021 (Dr. Anira\r\nIqbal vs. Central Bureau of Investigation) wherein similar condition was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">relaxed to the extent indicated above to enable the petitioner therein to\r\npursue her academic career in abroad in the field of medicine.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Learned counsel for the prosecuting agency has relied upon\r\njudgment of Apex Court in (2019) 17 SCC 299 (Atul Shukla vs. State of\r\nM.P. & Another) and order of Karnataka High Court in ILR 2017 KAR\r\n1967 (Imran Khan & Another vs. The State of Karnataka Forest\r\nDepartment) to contend that no recall, review or modification of an order\r\npassed under Cr.P.C. is permissible by exercise of inherent powers\r\nu/S.482 of Cr.P.C. Relying upon Single Bench judgment of Karnataka\r\nHigh Court, it is submitted by respondent that after passing of order dated\r\n18.08.2020 in MCRC. No.24219/2020, this Court has become functus\r\nofficio and cannot carry out any modification thereof in view of bar\r\ncontained u/S.362 of Cr.P.C. However, Single Bench of Karnataka High\r\nCourt while passing aforesaid order did not dispute the fact that power to\r\ncorrect a condition, subject to which a bail order is passed, is vested with\r\nthe Court u/S.439(1)(b) of Cr.P.C., but the same cannot be exercised by\r\ninvoking inherent powers u/S.482 of Cr.P.C. as it is a power to be\r\nindependently exercised on the invocation of aggrieved person.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. A bare perusal of aforesaid provision, in particular Section 439(1)\r\n(b) of Cri.P.C. it is vivid that High Court is vested with the power to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">modify any condition imposed by a Magistrate while passing an order of\r\nbail u/S.437 of Cr.P.C. whereas Section 439(1)(a) of Cr.P.C. empowers\r\nthe High Court to release a person on bail but when doing so in\r\nconnection with offences punishable with imprisonment of seven years or\r\nmore under Chapter VI, XVI and XVII of IPC or of abetment or\r\nconspiracy or attempt to commit such offences, then this Court in its\r\ndiscretion may impose any condition considered necessary in the\r\nattending facts and circumstances.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6.1 In exercise of power u/S.439(1)(a) of Cr.P.C. the Coordinate Bench\r\nof this Court while passing order dated 18.08.2020 in MCRC.\r\nNo.24219/2020 granted bail to petitioners inter alia subject to condition\r\nthat petitioners shall submit their passports before the Trial Court and\r\nshall not leave India without permission of this Court. The said bail order\r\nwas made subject to said condition after considering the gravity of\r\noffence and other relevant circumstances.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The petitioners seek deletion of said condition for travelling\r\nabroad in furtherance of their business and professional pursuits as\r\ncontended by them. It is not disputed that travelling abroad is one of the\r\nconcomitants of right to liberty enshrined Article 21 of the Constitution\r\nsubject to compliance of relevant laws which regulates such travel.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The aforesaid fundamental right of personal liberty under Article\r\n21 of the Constitution can admittedly be denied by procedure established <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by law. It is trite law that concept of bail flows out of fundamental right\r\nof personal liberty. The procedure for granting and denying bail or\r\nsubjecting order of bail to conditions is governed by procedure statutorily\r\nlaid down by Cr.P.C. and through judicial pronouncements rendered by\r\nApex Court, which are law of the land under Article 141 of Constitution.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8.1 It is also settled that grant of bail is a rule whereas its denial is an\r\nexception. Once bail is granted subject to certain conditions by the High\r\nCourt u/S.439(1)(a) of Cr.P.C. as is the case herein, the power to modify\r\nor delete the conditions subject to which bail is granted, is also inherently\r\nvested with the High Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8.2 The power of amending or deleting any condition, subject to which\r\nbail order u/S.439(1)(a) of Cr.P.C. is granted, is however not expressly\r\nprovided in Cr.P.C. Thus, the only course available for seeking and\r\ngranting modification/ deletion of such a condition is by invoking the\r\ninherent powers of this Court u/S.482 of Cr.P.C. to ensure the ends of\r\njustice. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8.3 Section 482 of Cr.P.C. saves inherent powers of this Court to be\r\nexercised inter alia to secure the ends of justice. The ends of justice can\r\nonly be secured when in absence of any express provision this Court is\r\nnot prevented from deleting/modifying any of the conditions subject to\r\nwhich an order of bail u/S.439(1)(a) of Cr.P.C. is passed. If such inherent\r\npowers are otherwise not available to this Court u/S.482 of Cr.P.C., then <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">object of insertion of Section 482 of Cr.P.C. would stand defeated and this\r\nCourt would be rendered a toothless tiger.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The Legislature while enacting the Code of Criminal Procedure\r\ncould never have approved a situation where this superior Court is\r\nhandicapped to exercise its inherent powers to modify/delete a condition\r\nimposed u/S.439(1)(a) of Cr.P.C. despite existence of compelling\r\ncircumstances merely because of absence of enabling provision in the\r\nCr.P.C.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9.1 The object behind bestowing inherent powers in this Court is to do\r\ncomplete justice and to prevent miscarriage of justice. The inherent\r\npowers are saved with this Court to be exercised in such circumstances\r\nwhere cause for doing complete justice or preventing failure of justice\r\nexists, but there is no express provision in Cr.P.C. As such Constitutional\r\nCourts are saved with such inherent powers to do complete justice\r\nwithout being inhibited or disabled by absence of enabling provision.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Accordingly, this Court deems it proper to invoke its inherent\r\npowers u/S.482 of Cr.P.C. to substitute condition No.(v) of Para 40 of\r\norder dated 18.08.2020 in MCRC. No.24219/2020 to be replaced by\r\nfollowing conditions: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(1) The petitioners shall file a written undertaking before the Trial\r\nCourt disclosing the date of departure and return of foreign trip and shall\r\ninform the Trial Court at the earliest after returning to India.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(2) The petitioners shall also file a similar undertaking before the\r\nMinistry of Foreign Affairs and relevant Embassy disclosing the fact of\r\npendency of offence against them with full details and only after such\r\ncondition is complied with, the petitioners may be allowed to proceed\r\nabroad subject to satisfying all other relevant provisions of law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(3) The petitioners shall also furnish additional security within 30 days\r\nfrom today in shape of fixed deposit receipt of Rs.10 lacs each in the Trial\r\nCourt, which shall stand forfeited in case of default of any of the\r\nconditions contained in this order or in the bail bond.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Copy of this order be also sent to the Trial Court for information\r\nand compliance.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. With the aforesaid directions, this MCRC is disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b8859ebe68ae3ed11ba19160b7d31be9.JPG', '29016a61990abb68233ade0885fc100f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-04', 1, '', '', '2022-04-03 15:57:50', '2022-04-04 11:20:59'),
(1516, 'pW507bhLOlM4gYot3v13WWmnT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Daksha Legal Monthly Digest - March 2022', '<p><b>Daksha Legal Monthly Digest - March 2022</b></p><p><b>Please download the PDF and click on the link.&nbsp;<br></b><br></p>', '39a2375070c68c126fce4ce4a3dc365f.JPG', 'f3a09def16af220926718512cf389656.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-02', 1, '', '', '2022-04-02 16:54:49', '2022-04-02 16:54:49');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1518, 'c4V3Sh9qcxfGU0jdg4I2hii3i', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Distinction between \'Charge\' and \'Attachment\'. Charge is a right to receive a certain sum of money whereas attachment merely prevents and avoids private alienations of the attached property. Gujarat High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shree Radhekrushna Ginning and Pressing Pvt. Ltd Vs State of Gujarat.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R/Special Application 5413 of 2022 decided on 29 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice J.B. Pardiwala and Justice Nisha M. Thakore. &nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. It appears from the materials on record that the writ applicant has\r\nincurred a liability of Rs.1,68,10,098/- towards the VAT under the\r\nprovisions of the GVAT Act, 2003. Such liability came to be incurred by\r\nvirtue of an assessment passed by the competent authority order dated\r\n23rd March 2020.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The assessment order dated 23rd March 20202 is now a subject\r\nmatter of challenge before the first appellate authority. The appeal has\r\nbeen admitted by the first appellate authority and the further\r\nproceedings towards the recovery have been stayed on the condition of\r\npre-deposit of Rs.7 Lakh. The writ applicant is here before this Court\r\nredressing the grievance that since the first appellate authority has\r\nstayed the recovery, the charge which has been created over the\r\nproperty owned by the writ applicant in the form of land and factory\r\nbuilding situated at the revenue survey No.252/2, paiki - 1, village :\r\nGomta, Taluka : Gondal, should now be released. In other words, the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">charge which has been created in the revenue record should no longer\r\nremain in operation.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Mr. Mehta would submit that the apprehension on the part of the\r\ndepartment that in the absence of any charge, the writ applicant may\r\ndispose of the land and factory building is absolutely misconceived and\r\nnot well-founded as Section 48 of the GVAT Act takes care of the\r\nsituation. We are not impressed with such a submission.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. At one point of time, Mr. Mehta, the learned counsel, during the\r\ncourse of his submissions, got confused between an attachment of\r\nproperty and charge created over the property. Mr. Mehta would also\r\nsubmit that the action on the part of the respondent No.2 is nothing, but\r\namounts to attachment of the property pending the appeal before the\r\nfirst appellate authority. Mr. Mehta would submit that the same is not\r\npermissible in law as there is no provision in the GVAT Act which\r\npermits attachment of a property after the final assessment order is\r\npassed and the first appeal is pending before the first appellate\r\nauthority.&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. There appears to be a serious misconception on the part of the\r\nwrit applicant that its property referred to above has been attached. The\r\nargument is that there cannot be any attachment of property since\r\nagainst the assessment order, there is an appeal pending and the\r\nappellant authority has stayed the recovery.&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Section 44 of the GVAT Act provides for a special mode of\r\nrecovery. This provision has no application to the facts of the present\r\ncase. Section 45 is with respect to the provisional attachment. Even this\r\nprovision has no application to the facts of the present case as the\r\nassessment order has already been passed. Section 46 confer special\r\npowers to the Tax Authorities for recovery of tax as arrears of land\r\nrevenue.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The plain reading of the aforesaid section would indicate that it\r\nstarts with a non-obstante clause. Section 48 clarifies that if any amount\r\nis payable by a dealer or any other person on account of tax, interest or\r\npenalty for which he is liable to pay to the Government, the same shall\r\nbe a first charge on the property of such dealer or as the case may be,\r\nsuch person.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. In response to the aforesaid, the Talati-cum-Mantri has mutated\r\nan entry in the village form No.2 that the owner of Radhakrishna\r\nGinning and Pressing Private Limited Company – Shri Dilipbhai\r\nChhaganbhai Shakhiya has incurred tax liability. In such circumstances,\r\nfor the purpose of recovering the said amount, the first charge over the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">property owned by the company shall be that of the Government.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. The aforesaid charge may be a bit uncomfortable to the writ\r\napplicant as it appears that the bank from whom the writ applicant has\r\nobtained overdraft facility is creating some problems. It is for the writ\r\napplicant to sort it out with the bank. Today, there is no good reason for\r\nthis Court to interfere in the matter.&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. We take this opportunity to explain the effect of attachment and\r\nalso the effect of charge. In Mulla\'s Civil Procedure Code, 8th Edn., the\r\nlaw as applicable in India is thus summarised (p. 187):</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>“Attachment creates no charge or lien upon the attached property. It\r\nmerely prevents and avoids private alienations; it does not confer any\r\ntitle on the attaching creditors. There is nothing in any of the provisions\r\nof the Code which in terms makes the attaching creditor a secured\r\ncreditor or creates any charge or Hen in his favour over the property\r\nattached. But an attaching creditor acquires, by virtue of the\r\nattachment, a right to have the attached property kept in custodia legis\r\nfor the satisfaction of his debt, and an unlawful interference with that\r\nright constitutes an actionable wrong.”&nbsp;<br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. A charge on the other hand under Section 48 of the GVAT Act\r\ncreates no interest in or over a specific immovable property, but is only a\r\nsecurity for the payment of money.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. The words “by operation of law” are more extensive than the\r\nwords “by law” and a charge created by operation of law includes a\r\ncharge directly created by the provisions of an Act (like Section 48 of the\r\nGVAT Act) as well as other charges created indirectly as a legal\r\nconsequence of certain conditions. The expression “operation of law”\r\nonly means working of the law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. A charge, as we have already seen, is a right to receive a certain\r\nsum of money. If a dealer registered under the GVAT Act incurs any\r\nliability towards payment of tax, then the State has a right to receive a\r\ncertain sum of money as crystallized in the form of liability. This\r\nrecovery of the money from the property can be by attaching the assets\r\nof the defaulting dealer, and thereafter, putting those to auction. This\r\ntype of recovery would be governed by the provisions of Section 46 of\r\nthe GVAT Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. In the case on hand, it could be said that the day the assessment\r\norder came to be passed determining the liability of the writ applicant\r\nunder the provisions of the GVAT Act, a charge over the immovable\r\nassets of the writ applicant could be said to have been created in favour\r\nof the State by operation of law, as envisaged under Section 48 of the\r\nGVAT Act. Today, the recovery might have been stayed by the first\r\nappellate authority, but, tomorrow, if the first appeal as well as the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">second appeal that may be filed by the writ applicant is dismissed, then\r\nthe next step in the process would be the recovery of the requisite\r\namount. What could be said to have been done as on date is just to make\r\none and all aware that by operation of law, as envisaged under Section\r\n48 of the GVAT Act, there is a charge of the State Government over the\r\nimmovable properties owned by the writ applicant, as described above.\r\nHow would all come to know about the same. It is for this reason that an\r\nentry is ordinarily made in the revenue records.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>21. We would like to clarify that what has been done by the Talaticum-Mantri does not amount to attachment of the property. There is no\r\nattachment. We reiterate that there is a fine distinction between\r\nattachment of property and a charge over the property by operation of\r\nlaw.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>22. In the result, this writ application fails and is hereby rejected.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a4d0045fdc27c2c00dc1649ade74f61c.jpeg', '286c1000115c4eb360ddb3ab8c78d6b3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-03', 1, '', '', '2022-04-03 16:26:56', '2022-04-06 11:37:26'),
(1519, 'jjDkvvyawxxti8vN3atrofX5W', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Ordinarily a Power of Attorney is to be construed strictly by the Court. Agent can NOT sell property without THE express authorisation under the GPA. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Umadevi Nambiar vs Thamarasseri Roman Catholic Diocese.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2592 of 2022 decided on April 1 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Gupta and Justice V. Ramasubramanian.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">1. Their suit for partition having been decreed by the trial Court but   reversed   by   the   High   Court   in   a   regular   first   appeal,   the plaintiffs have come up with the above appeal.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The suit schedule property originally belonged to one Ullattukandiyil Sankunni. After his death, the property devolved upon his two daughters, one of whom is the appellant herein. The appellant herein executed a general Power of Attorney on 21.07.1971, registered as Document No.35 of 1971, in favour of her sister Smt. Ranee Sidhan. However, the said power was cancelled on 31.01.1985. But in the meantime, the appellant’s sister was found to have executed four different documents in favour of certain third parties, assigning/releasing some properties. Therefore, the appellant first filed a suit in O.S.No.16 of 1986 followed by another suit in O.S.No.27 of 1988 against the assignees/releasees. Though a preliminary decree was passed in the second suit on 7.01.1989, the appellant came to know later that the assignees/releasees had sold the property to the respondent herein.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Therefore, the appellant filed yet another suit in O.S No.130 of 1989, seeking partition and separate possession of her half share in the suit property. The trial Court granted a preliminary decree in favour of the appellant. However, the regular appeal filed by the respondent herein was allowed by a Division Bench of the High Court by the judgment and decree impugned in this appeal. Therefore, the appellant has come up with the above appeal.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. At the outset, it should be stated that the respondent herein did not dispute the fact that the suit schedule property originally belonged to the father of the appellant and her sister and that the appellant and her sister were entitled to equal shares in the property. But the respondent contested the suit on the grounds inter alia</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) that in view of two prior suits for partition, namely, O.S. No.16 of 1986 and O.S.No.27 of 1988, the suit was barred under Order II Rule 2 of CPC; </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)  that the general Power of Attorney executed by the appellant in favour of her sister, authorized the agent to sign all documents  and  present them for registration;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii)  that by virtue of the said power, the appellant’s sister transferred the suit schedule properly to four persons, for the purpose of discharging the debts incurred in the family business;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv)  that those transferees, in turn, sold the property to the respondent herein for a valuable consideration;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(v) that though the appellant was earlier residing in England, she came back to India and was staying in a house just 1 km. away from the plaint schedule property;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(vi) that the appellant was therefore aware of all the transfers including the transfer in favour of the respondent and the development made by the respondent over the suit property;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(vii)  that, therefore, the appellant is guilty of acquiescence; and</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(viii)  that the respondent has actually developed a commercial complex on the suit property and hence entitled at least to the value of improvements, in the event of a decree being passed.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The trial Court framed as many as 23 issues for consideration in the suit. The objection on the basis of Order II Rule 2 of CPC was rejected by the trial Court on the ground that the appellant’s sister had committed a fraud and that the cause of action for the present suit was different from the cause of action for the previous suits. The contention that the appellant was guilty of acquiescence was rejected by the trial Court on a factual finding that the appellant was not aware of the transfer. On an examination of the recitals contained in the Power of Attorney, the trial Court came to the conclusion that the document did not confer any power to sell the property and that, therefore, the appellant’s sister was not entitled to alienate the property. Since the original alienations made in 1981 and 1982 by the appellant’s sister were null and void on account of lack of express power to sell, the subsequent sale made by those alienees in favour of the respondent herein was also held to be invalid. On the basis of these findings, the trial Court decreed the suit, as prayed for.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. While reversing Judgment and decree of the trial Court, the High Court held:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) that the failure of the appellant to seek the relief of setting aside the documents of transfer and/or recovery of possession of the property was fatal to her case;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) that though the principle behind Order II Rule 2 CPC may not be applicable to suits for partition, the appellant must be held to have had constructive notice of the alienations made by her sister, in view of Section 3 of the Transfer of Property Act, 1882 (hereinafter referred to as “the Act”); </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii)  that once constructive notice is attributed to the appellant, any relief for cancellation of the documents of alienation would have already become time barred, by the time the Power of Attorney was cancelled;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv) that since the deed of general Power of Attorney filed as Exhibit A­1 did not contain any express power to sell   the   suit   property,   the  transferee cannot be held to have exercised ‘reasonable care’ as required by the proviso to Section 41 of the Transfer of Property Act, 1882; and</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(v) that despite this fact, the appellant was not entitled to a decree for partition, in view of her failure to seek the cancellation of the alienations, in spite of having constructive notice of the alienations.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. As could be seen from the judgments of the trial Court and the High Court, the deed of general Power of Attorney executed by the appellant in favour of her sister on 21.07.1971, did not specifically contain any power of sale. Therefore, the trial Court as well as the High Court held in no uncertain terms that the appellant’s sister was not competent to sell the property to the predecessor­ in interest of the respondent. However, the learned counsel appearing for the respondent argued,</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) that while construing a document, all punctuation marks should be given due weightage;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">(ii) that the deed </font><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of Power of Attorney was drafted by a doyen of the Bar;  </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(iii) that\r\nClause 22 of the deed of Power of Attorney conferred upon the\r\nagent, the power to execute and register all documents; </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(iv) that the\r\npower to execute a document and present the same for registration,\r\nshould be understood to mean the power to execute documents\r\nrequiring registration in the light of Section 49 of the Registration\r\nAct, 1908; and  </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(v) that, therefore, a  bonafide  purchaser like the\r\nrespondent should not be made to suffer.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>9. But we do not agree with the above submissions of the learned\r\ncounsel for the respondent. It remains a plain and simple fact that\r\nthe   deed of Power of Attorney executed by the appellant on\r\n21.07.1971 in favour of her sister contained provisions empowering\r\nthe agent: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(i) to grant leases under Clause 15; </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(ii) to make borrowals\r\nif and when necessary with or without security, and to execute and\r\nif necessary, register all documents in connection therewith, under\r\nClause 20; and </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(iii) to sign in her own name, documents for and on\r\nbehalf of the appellant and present them for registration, under\r\nClause 22. But there was no clause in the deed authorizing and empowering the agent to sell the property. The argument that the deed was drafted by a doyen of the Bar, is an argument not in favour of the respondent. This is for the reason that the draftsman has   chosen   to  include, </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(i)  an  express power to lease out the property;   and </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(ii) an express power to execute any document offering the property as security for any  borrowal, but not an express  power to sell the property. Therefore, the draftsman appears to have had clear instructions and he carried out those instructions faithfully. The power to sell is not to be inferred from a document of Power of Attorney. The trial Court as well as the High Court were ad idem on the finding that the document did not confer any power of sale.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>12. Unfortunately after finding </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(i)  that the Power of Attorney did not   contain   authorization   to   sell;   and </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(ii)  that the respondent cannot claim the benefit of Section 41 of the Act, the High Court fell into an error in attributing constructive notice to the appellant in terms of Section 3 of the Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>13. Two things are important for the above interpretation clause to come into effect. They are:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(i) wilful abstention from an enquiry or search; and </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b> (ii)  gross negligence. Explanation I  and  Explanation II under the above interpretation clause are applicable to the person acquiring an immovable property, the transaction relating to which is required by law to be effected by a registered instrument. The High Court has turned the above interpretation clause upside down and held the Principal in relation to a deed of Power of Attorney, to have had constructive notice in terms of Section 3, of a sale effected by the agent.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>14. The reasoning given by the High Court for holding that the appellant ought to have challenged the alienations, is that the appellant was out of possession. Here again, the High Court failed to appreciate that the possession of an agent under a deed of Power of Attorney is also the possession of the Principal and that any unauthorized sale made by the agent will not tantamount to the Principal parting with possession.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>15. It is not always necessary for a plaintiff in a suit for partition to seek the cancellation of the alienations. There are several reasons behind this principle. One is that the alienees as well as the cosharer are still entitled to sustain the alienation to the extent of the share of the co­sharer. It may also be open to the alienee, in the final decree proceedings, to seek the allotment of the transferred property, to the share of the transferor, so that equities are worked out in a fair manner. Therefore, the High Court was wrong in putting against the  appellant, her failure to challenge the alienations<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>17. We do not know how the ratio laid down in the aforesaid decisions could be applied to the advantage of the respondent. As a matter of plain and simple fact, Exhibit A­1, deed of Power of Attorney did not contain a clause authorizing the agent to sell the property though it contained two express provisions, one for leasing out the property and another for executing necessary documents if a security had to be offered for any borrowal made by the agent. Therefore, by convoluted logic, punctuation marks cannot be made to convey a power of sale. Even the very decision relied upon by the learned counsel for the respondent, makes it clear that ordinarily a Power of Attorney is to be construed strictly by the Court. Neither Ramanatha Aiyar’s Law Lexicon nor Section 49 of the Registration Act can amplify or magnify the clauses contained in the deed of Power of Attorney.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>18. As held by this Court in Church of Christ Charitable Trust and   Educational   Charitable   Society  vs.  Ponniamman Educational Trust the document should expressly authorize the agent, </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(i)  to execute a sale deed; </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(ii)  to present it for registration; and</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(iii) to admit execution before the Registering Authority.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>19. It is a fundamental principle of the law of transfer of property that “no one can confer a better title than what he himself has” (Nemo dat quod non habet).The appellant’s sister did not have the power to sell the property to the vendors of the respondent.Therefore, the vendors of the respondent could not have derived any valid title to the property. If the vendors of the respondent themselves did not have any title, they had nothing to convey to the respondent, except perhaps the litigation.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>20. Therefore, the appeal is allowed, the impugned judgment of the High Court is set aside and the Judgment and preliminary decree passed by the trial Court are restored. There will be no order as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f123a761333babbfee51c43c72eb6d8b.jpeg', 'cb1c7b0e32eaf227c0573912e8c368bd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-05', 1, '', '', '2022-04-03 17:15:28', '2022-04-05 16:00:29');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1520, 'hZEyI0F45gMd2ducuIH2SUjTp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When challenge to arbitrator u/s 13 of A & C Act fails, the only recourse is Section 34 after the award is passed. No separate challenge u/s 14 permissible. Delhi High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sacheerome Advanced Technologies Vs NEC Technologies Pvt. LTD.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>O.M.P (T) (COMM) 34 of 2022 decided on 29 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Vibhu Bakhru. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The petitioner has filed the present petition under Section 14 (2)\r\nof the Arbitration and Conciliation Act, 1996 (hereafter ‘the A&C\r\nAct’), inter alia, praying that the mandate of the learned Sole Arbitrator\r\nbe terminated.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The disputes between the parties have arisen in the context of an\r\nagreement dated 11.06.2019 (the Agreement). On 08.10.2020, the\r\npetitioner had issued a notice under Section 21 of the A&C Act, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">invoking the Arbitration Agreement and called upon the respondent to\r\nconcur on appointment of an arbitrator. The respondent rejected the said\r\nrequest. Consequently, the petitioner filed a petition under Section 11\r\nof the A&C Act [being ARB. P. 702/2020] seeking appointment of an\r\nArbitrator.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The learned Arbitrator expired on 17.05.2021. In the\r\ncircumstances, the petitioner filed a petition before this Court under\r\nSection 14(1)(a) read with Section 15 of the A& C Act being OMP (T)\r\n(COMM) 74/2021. This Court disposed of the said petition by an order\r\ndated 09.08.2021 and appointed Ms Radhika Biswajit Dubey, Advocate\r\nas the Sole Arbitrator to adjudicate the disputes between the parties.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n5. The petitioner is aggrieved by the manner in which the Arbitral\r\nTribunal has conducted the arbitral proceedings. It is also averred in the\r\npresent petition that the learned Arbitrator did not make the complete\r\ndisclosure as required under Section 12(1) of the A&C Act at the time\r\nof accepting her appointment. She had, however, subsequently\r\ndisclosed that she had worked as a junior to one of the senior counsels\r\nappearing for the petitioner. She had also worked with a law firm, which\r\nhad subsequently split. After the split she thereafter, was associated\r\nwith one of the resultant firms as a partner (not the firm representing the\r\nrespondent). The other resultant firm is representing the respondent. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. It is important to note that the learned Arbitrator had made full\r\ndisclosure at the first preliminary hearing held on 26.08.2021. This was\r\nprior to the learned Arbitrator receiving the Arbitral record. She had\r\nalso recorded that none of the circumstances as disclosed fall foul of the\r\nFifth or the Seventh Schedule to the A&C Act. Nonetheless she had\r\nmade the disclosure for the comfort of the parties. Admittedly, the\r\npetitioner did not express any reservations and participated in the\r\narbitral proceedings. However, in the present petition it is averred that\r\nthe learned Arbitrator’s “direct and indirect” contact and connection\r\nwith the Law firms. have created a reasonable apprehension as to the\r\nindependence and impartiality of the learned Arbitrator.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. There is no dispute that the circumstances as disclosed by the\r\nlearned Arbitrator do not fall within the scope of the Fifth Schedule of\r\nthe A&C Act. Concededly, the petitioner had accepted the disclosure\r\nand had unreservedly participated in the arbitral proceedings.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n9. Although Ms Luthra, learned Senior Counsel appearing for the\r\npetitioner had referred to the disclosure made by the learned Arbitrator\r\nto suggest an apprehension of bias, she did not press the same. She has\r\nconfined the challenge to the appointment of the Arbitral Tribunal on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">two grounds. First, she submitted that the conduct of the Arbitral\r\nTribunal does not inspire confidence. She stated that the Arbitral\r\nTribunal had also found the petitioner (Claimant before the Arbitral\r\nTribunal) guilty of inordinate delays and had also imposed costs, even\r\nthough the alleged delays had occurred prior to the appointment of the\r\nlearned Arbitrator. She submits that the learned Arbitrator could not\r\nhave imputed any delay on the petitioner in conducting the arbitral\r\nproceedings or approaching this Court for appointment of the\r\nArbitrator, in respect of a period prior to her appointment.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>10. She also referred to certain correspondence (e-mails) exchanged\r\nfor fixing the dates of examination and the manner of conducting the\r\ncross-examination (virtual or physical). She submits that the\r\nArbitrator’s conduct gives rise to apprehension of real likelihood of bias\r\non her part and the said Arbitrator is thus, de jure incapable of\r\nperforming her functions.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11. Second, Ms Luthra, submits that there has been an inordinate\r\ndelay on the part of the learned Arbitrator in conducting the arbitral\r\nproceedings and therefore, she has failed to act with due dispatch.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. It is seen that the petitioner had filed an application before the\r\nlearned Arbitrator under Section 15 read with Section 14(1)(a) of the\r\nA&C Act seeking termination of her mandate, which was rejected.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>13. The contention that the mandate of the learned Arbitrator stands\r\nterminated under Section 14(1) of the A&C Act is unmerited. The\r\npresent petition is not maintainable.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. It is well settled that a petition under Section 14(1) of the A&C\r\nAct cannot be filed to challenge appointment of the Arbitral Tribunal\r\non grounds as set out under Section 12(3) of the A&C Act. Any party\r\nseeking to challenge the appointment of the arbitrator is required to do\r\nso in accordance with the procedure set out in Section 13 of the A&C\r\nAct. In the first instance, the said challenge is required to be considered\r\nby the Arbitral Tribunal. In terms of Sub-section (3) of Section 13 of\r\nthe A&C Act, the learned Arbitrator could either withdraw from the\r\noffice failing which the Arbitral Tribunal is required to decide the said\r\nchallenge. In terms of Sub-section (4) of Section 13 of the A&C Act, if\r\nthe challenge is not successful, the Arbitral Tribunal is required to\r\ncontinue with the arbitral proceedings and make an award. In such\r\ncircumstances, the only recourse available to a party challenging the\r\nappointment of an Arbitrator under Section 13 of the A&C Act, is to\r\nawait for the arbitral award and if aggrieved, take recourse to the\r\nprovisions as set out under Section 34 of the A&C Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. In the present case, the petitioner did not make any application\r\nchallenging the appointment of learned Arbitrator under Section 13 of\r\nthe A&C Act; it filed an application styled as under Section 16 read\r\nwith Section 14(1)(a) of the A&C Act. Nonetheless, in substance, the\r\npetitioner had challenged the appointment of the learned Arbitrator. The\r\nlearned Arbitrator considered the said application and has since decided\r\nthe same. In the circumstances, the only recourse now available to the\r\npetitioner is to proceed with the arbitral proceedings and challenge the\r\narbitral award under Section 34 of the A&C Act, if it so desires. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. The contention that Section 14 of the A&C Act provides a\r\nseparate remedy available to parties to challenge appointment of an\r\narbitrator, notwithstanding, the provisions under Section 13 of the A&C\r\nAct, is unmerited. In Progressive Career Academy Pvt. Ltd. v.\r\nFIITJEE Ltd.: 180 (2011) DLT 714, the Court had examined the\r\nUNCITRAL Model Law and noted that the Parliament had not adopted\r\nthe Model Law in its entirety on the subject of impartiality of the\r\nArbitral Tribunal. The Court had further noted that a departure from the\r\nsaid Model Law, indicated that the Indian Parliament did not want any\r\ncurial interference at an interlocutory stage of the arbitral proceedings\r\non the perceived ground of bias. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. This Court in HRD Corporation (Marcus Oil and Chemical\r\nDivision) v. GAIL (India) Ltd.: 2017 SCC OnLine Del 8034 held that\r\ninsofar as a challenge to the Arbitral Tribunal in the circumstances\r\nreferred is Section 12(3) of the A&C Act is concerned, recourse to\r\nSection 14 of the A&C Act would not be available. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">18. The contention that the Arbitral Tribunal has not acted with due </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dispatch is bereft of any merit. It is seen that the learned Arbitrator was\r\nappointed on 09.08.2021. It is seen that a number of hearings have been\r\nheld by the Arbitral Tribunal despite the mitigating circumstances\r\nresulting from the outbreak of Covid-19. The matter is at the stage of\r\nrecording of evidence.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. Ms Luthra, spent considerable time in advancing arguments that\r\nthe appointment of the learned Arbitrator was completely unjustified in\r\nchanging the manner of hearings scheduled on 28.01.2022 to\r\n30.01.2022 from physical to virtual by her communication dated\r\n05.01.2022, ostensibly on account of surge in covid cases. She\r\nsubmitted that the learned Arbitrator could under no possible\r\ncircumstance have any reason to know the status of covid cases on\r\n28.01.2022.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. A virtual hearing was held before the Arbitral Tribunal on\r\n29.11.2021. The procedural order no.7 issued thereafter (on\r\n03.12.2021) indicates that the Arbitral Tribunal had, with the consent\r\nof the parties, scheduled sittings for three days – from 28.01.2022 to\r\n30.01.2022 in physical board with two sessions per day. Apparently, the\r\nsame was fixed as the respondent’s witness (who had located to\r\nSingapore) had expressed his inability to be physically present prior to\r\n28.01.2022. The petitioner states that the respondent was willing for\r\ncross-examination of his witness by the virtual mode for three days –\r\n17.12.2021 to 19.12.2021.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. After the hearing was concluded before the Arbitral Tribunal on\r\n29.11.2021, the petitioner sent an email dated 30.11.2021 requesting\r\nthat the cross-examination of witness be fixed for 17.12.2021 to\r\n19.12.2021. However, the same was not acceptable to the respondent\r\nand this was communicated by the learned counsel for the respondent\r\nby its email dated 02.12.2021. Since the respondent did not accede to\r\nthe petitioner’s request for change in the schedule of hearings which\r\nwere fixed on 28.01.2022 to 30.01.2022, the same were retained by the\r\nArbitral Tribunal. Thereafter, on 05.01.2022, the Arbitral Tribunal\r\nissued an email changing the mode of hearing fixed on 28.01.2022 to\r\n30.01.2022 from physical to virtual on account of surge in Covid-19\r\ncases. The learned counsel for the petitioner had objected to the same\r\nby its email dated 19.01.2022 and requested that the mode of hearing as\r\nfixed earlier be retained as there was a decrease in the number of Covid19 cases. There was an exchange of correspondence between the\r\nparties.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. The said contention is clearly without substance. It is common\r\nknowledge that the number of Covid-19 cases had increased. It is\r\nmaterial to note that the petitioner did not immediately object to the\r\ncommunication dated 05.01.2022. It did so after two weeks, that is, by\r\nan email dated 19.01.2022. Interestingly, the reason provided by the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner for a delayed response is that the counsels on record were\r\n“down with COVID-19 in the first two weeks of January and were in\r\nquarantine, and hence, they were unable to access their emails in due\r\ncourse of time”.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. It is also relevant to note that in view of the pandemic, the\r\nSupreme Court has also passed various orders in Re: Cognizance for\r\nExtension of Limitation: Suo Motu Writ Petition (Civil) No.3/2020,\r\nextending the period of limitation in all cases including the time for an\r\nArbitral Tribunal to make an award as contemplated under Section 29A\r\nof the A&C Act. The question whether the Arbitral Tribunal has acted\r\nwith due dispatch is required to be considered bearing the mitigating\r\ncircumstances resulting from the outbreak of Covid 19, in mind.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. In view of the above, the present petition is dismissed with costs\r\nquantified at Rs. 25,000/-. The costs shall be deposited with the Delhi\r\nHigh Court Legal Services Committee within a period of two weeks\r\nfrom date.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. It is clarified that nothing stated in this order shall preclude the\r\nparties from raising such contentions, as advised, either before the\r\nArbitral Tribunal or before this Court under Section 34 of the A&C Act,\r\nafter the Arbitral Award has been rendered.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '93a9d62af315cf9282aed64a48d8429e.png', 'd839b3f2f084ac8f16a612e10079fc08.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-05', 1, '', '', '2022-04-03 18:01:31', '2022-04-05 17:33:12'),
(1521, '71NlXV9US9odaH2ED4z76OR75', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Impounding of entire sale agreement in a suit for specific performance for non payment of stamp duty is mandatory even though the suit is confined only one of several properties. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Anthon Vidar Fernandes Vs Yvenee William Gonsalves and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 101026 of 2022 decided on 15 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. O.S.No.39/2014 has been filed seeking for  the specific performance of the agreement dated 13.04.2012. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. In the said suit I.A.No.XIV came to be filed by the defendant contending that the agreement of the sale dated 13.04.2012 was not properly stamped and therefore the same is sought to be impounded. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Objections were filed by the plaintiff - petitioner herein, the trial Court vide the impugned order dated 05.03.2022 allowed the said application and directed the plaintiff to make payment of the stamp duty  along with penalty thereon. It is the said order which is impugned in the present proceedings. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Sri.S.V.Yaji, learned counsel appearing for the petitioner submits that the suit in O.S.No.39/2014 was filed only seeking for specific  performance  of part of the contract which has not been performed in as much as the agreement was with regard to three properties, one agricultural and two non-agricultural properties. In respect of one of the non-agricultural properties, sale deed has already been executed on 04.12.2012. It is only in respect of the two remaining properties that specific performance is  now  sought for and on that basis the valuation of the suit both  the jurisdiction and court fee has been done, and in this background he submits that the entire document could not have been ordered to be impounded as court fee and stamp duty directed to be paid along with penalty. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. In view of the proposed order to be passed, notice to respondents is dispensed with. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. The document that is sought to be impounded is an agreement of sale dated 13.04.2012. Under the said document, three properties were sought to be  sold. In terms of Clause 5 thereof, the seller has categorically stated that the possession of properties have been handed over to the purchasers on 13.04.2012 and all right, title and interest in the scheduled properties has been transferred into the name of the purchaser. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. The said agreement has been stamped with a stamp duty of Rs.200/- by way of e-stamp. In terms of Article 5(1)(E) of the Karnataka Stamp Act, 1957, whenever the possession is handed over under an agreement of sale, the said agreement would be leviable with stamp duty, as a conveyance in terms   of Article 20 thereof on the market value of the property. The market value as per the agreement of the sale is stated to be Rs.39,00,000/- where the stamp duty paid on the document is only a sum of Rs.200/-. It is this fact which has been taken into consideration by the trial Court and the trial Court  has come to a categorical conclusion that the necessary stamp duty has not been paid on the instrument. The said document is sought to be relied upon during the evidence by the petitioner – plaintiff. The Court exercising powers under Section 33, 34, and 37 of the Karnataka Stamp Act, impounded the document and levied penalty.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 9. The submission of Sri. S.V.Yaji that a portion of the property has already been transferred and it is only  as regards the remaining property which is to be transferred that the suit has been filed cannot confer any benefit to the petitioner – plaintiff. What is impounded is the agreement of sale for not having been stamped whether a portion of it has been performed or not would be of no consequence. It is the agreement which not being properly stamped which is liable to be impounded. Admittedly, possession has been handed over under the said agreement. The valuation for the purpose of jurisdiction or court fee has nothing to do with the stamp duty liable to be paid on the agreement. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. In view thereof I am unable to accept the submission of Sri.S.V.Yaji, learned counsel for the petitioner, there being no grounds made out for interference in the order passed by the trial Court, the petition stands dismissed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c03fbfad8bc4ea26aed84735a88c9cae.jpeg', 'a5bdf43ab37f0e1a534f729f5d7c74c3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-04', 1, '', '', '2022-04-04 18:25:08', '2022-04-04 13:14:38'),
(1522, 'cS0ITZEY5OpntwSyg002RUQzM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Amendment in the pleadings by way of adding mutually destructive inconsistent/contradictory pleas/reliefs/claims, is not permissible. Punjab High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Malkat Singh Vs Kasturba Gandhi Memorial Trust and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision 1473 of 2020 decided on 28 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Meenakshi I. Mehta.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The facts, in brief, leading to the filing of the present revision\r\npetition, are that the petitioner (as plaintiff) filed a Civil Suit against the\r\nrespondents (defendants before the trial Court) for seeking the decree for\r\ndeclaration to the effect that the suit property, as detailed in the head note of\r\nthe plaint (Annexure P-1), was the property of respondent No.1 and the Sale\r\nDeed dated 11.11.2013 allegedly executed by this respondent in favour of\r\nrespondent No.2 was illegal, null and void and was the result of collusion and\r\nfraud and was, therefore, liable to be set aside. Thereafter, he moved the\r\nafore-said application for seeking the amendment in the plaint by way of\r\nadding the relief therein to the effect that the suit property deserved to be\r\nreverted back to him and its ownership was required to be recorded in his\r\nname and also by way of incorporating Paragraph No.5-A in the plaint with\r\nthe averments that the suit property was gifted for the welfare of the children\r\nof the Village and the said Sale Deed was executed in violation of the very\r\npurpose of ‘gift’ and therefore, the said gift stood revoked on this count and\r\nresultantly, the suit property deserved to be reverted back to him as the owner\r\nof the same and its possession was also required to be restored to him.\r\nHowever, the trial Court, vide the impugned order, has dismissed the said\r\napplication. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Learned counsel for the petitioner has contended that the father\r\nof the petitioner had gifted the suit property to respondent No.1-Trust for the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">welfare of the children in the Village but the Trust had sold the same to\r\nrespondent No.2 in contravention of the very object of the gift and therefore,\r\nthe suit property is liable to revert back to the petitioner but somehow, the\r\nafore-said relief as well as Para 5-A, as sought to be added in the relevant\r\nparts of the plaint by way of the proposed amendment, could not be\r\nincorporated in the original plaint whereas the same are material and\r\nnecessary for the proper adjudication of the dispute between the parties. To\r\nbuttress his contentions, he has placed reliance upon South Konkan\r\nDistilleries & Anr. Vs. Prabhakar Gajanan Naik & Ors. 2008(4) Civil Court\r\nCases 395 (SC), Navtej Singh vs. Darbara Singh & Ors. 2015(2) Civil Court\r\nCases 148 (P&H), Nirmala Handa vs. Smt. Krishna Kaura (Now Deceased)\r\nThrough Her Lrs. & Anr. 2015(2) Civil Court Cases 152 (Delhi HC), Sunil\r\nGupta vs. Nargis Khanna 2015(3) Civil Court Cases 822 (Delhi HC), and\r\nBhola Nath and Bros. Vs. New Delhi Municipal Committee Regular Second\r\nAppeal No.787-D of 1963 Decided on 08.01.1965 {Punjab High Court\r\n(Circuit Bench at Delhi).</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>However, I do not find any merit in the afore-referred\r\ncontentions because a perusal of the plaint Annexure P-1 reveals that the\r\npetitioner has sought therein the decree for declaration to the effect that the\r\nsuit property is the property of respondent No.1-Trust by way of gift and he\r\nhas, further, assailed the Sale Deed executed by the said Trust in favour of\r\nrespondent No.2, on the ground of the said property being non-transferable\r\nbut by way of the proposed amendment, he has prayed for adding the relief\r\nqua his own ownership over the suit property by way of its reversion on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">account of the violation of the terms of the said gift on the part of the Trust\r\nand also Para 5-A in the plaint, containing averments to the same effect. Thus,\r\nit is explicit that the relief, as originally claimed in the plaint and the relief, as\r\nsought to be added therein by way of the proposed amendment, are mutually\r\ndestructive being contradictory to each other. It is well-settled that the\r\namendment in the pleadings, by way of adding mutually destructive\r\ninconsistent/contradictory pleas/reliefs/claims, is not permissible.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>To add to it, the petitioner has not mentioned in the proposed\r\nPara No.5-A as to whether any gift deed had been executed by the donor, i.e\r\nhis father, at the time of donating the suit property to respondent No.1-Trust\r\nor not and if so executed, then which part/clause/condition thereof has been\r\nviolated by respondent No.1 by executing the said Sale Deed in favour of\r\nrespondent No.2. Further, as categorically observed in the impugned order\r\nAnnexure P-6, the said Civil Suit was filed in the year 2014 to challenge the\r\nSale Deed dated 11.11.2013 whereas the afore-said application was moved by\r\nthe petitioner in the year 2019. The petitioner has not been able to come\r\nforward with any fair, candid and plausible explanation for remaining in deep\r\nslumber for almost five years before moving the afore-said application.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">The observations as made in South Konkan Distilleries & Anr.\r\n(supra), Navtej Singh (supra), Nirmala Handa (supra), Sunil Gupta (supra)\r\nand Bhola Nath and Bros. (supra), are of no avail to the petitioner because\r\nthe facts and circumstances of the above-cited cases are distinguishable from\r\nthose of the present one because in South Konkan Distilleries & Anr.(supra),\r\nthe proposed amendment pertained to the addition of the amount intended to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be claimed on account of the loss suffered subsequent to the filing of the\r\ncounter-claim wherein some amount had already been claimed on the same\r\nscore and was, thus, consistent with the pleadings as set-forth the written\r\nstatement-cum-counter claim whereas in this case, as discussed earlier, the\r\npetitioner intends to introduce a new relief on the basis of altogether different\r\npleas which are not in consonance with his pleadings, as canvassed in original\r\nplaint.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Then, in Navtej Singh (supra), the amendment was sought in\r\nview of the provisions as contained in Section 26 of the Specific Relief Act\r\nwhereas it is not so in this case. Further, in Nirmala Handa (supra), Sunil\r\nGupta (supra) and Bhola Nath & Bros (supra), the proposed amendment\r\nwas not in contradiction to the pleas and the relief as initially set-forth in the\r\npleadings whereas in the instant case, as mentioned earlier, the proposed\r\namendment in the plaint is inconsistent with the original pleadings as putforth in the plaint.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> As a sequel to the fore-going discussion, it follows that the\r\nimpugned order, as passed by the Court below, does not suffer from any\r\nillegality, irregularity, infirmity or perversity so as to call for any interference\r\nby this Court. Resultantly, the present revision petition, being sans any merit,\r\nstands dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c4d0e4e62f641b7cabb76700fdc3dc4b.jpeg', '72516bea1df4ac29f3794227103a3d0a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-04', 1, '', '', '2022-04-04 18:38:37', '2022-04-04 15:51:49');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1523, '5df9xuxdCPgnTGwQNPqpM06eo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Writ. Mere representations to the authority cannot justify a belated approach. Court may refuse to invoke extraordinary power if there was negligence/omission on the part of the applicant to assert his right within a reasonable time. Allahabad High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Lal Bihari Patel and others Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ C 11480 of 2019 decided on 4 April 2019.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Y.K. Srivastava and Justice Amit Sthalekar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The petitioners, through  the present writ  petition, have come to this Court seeking a direction to respondent no.2 to pay compensation to the petitioners with interest in respect of gata nos.345Kha/0.877,   346/0.022,   346/0.036,   362Ka/0.106, 382/0.017,   384/0.010,  393Chha/0.191,   993Ga/0.038, 993Ga/0.186, 998/0.167, 1002/0.029, 1003/0.160, 1003/0.160 and   1006/0.019   hectares situate in Village  Khadiya, Pargana Singrauli, Tehsil Duddhi, District Sonebhadra, said to have been acquired some time in the year 1991. No  particulars with regard to the acquisition proceedings have either been referred to in the pleadings nor any material has been placed on record to show as to when the land was notified for acquisition. The revenue records in the form of certain khatauni extracts have been placed on   record  which indicate that the plots in question were recorded in the name of NCL (National Coal Field Ltd.) some time in the year 1992.</b></font><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The sole contention of the learned counsel for the petitioners is that a representation had been sent by the petitioners claiming compensation in respect of the said plots on 21.03.2017, and thereafter another representation dated 23.01.2019 has also been sent. There is no explanation in the writ petition for the long delay of more than 26 years in raising a claim with regard to compensation in respect of land said to have been acquired in the year 1991­. Despite repeated queries counsel for the petitioners has not been able to submit any explanation for the inordinate delay by the petitioners in raising their claim for compensation and also the delay/laches in filing of the writ petition. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Learned counsel appearing for respondent no.1 and also learned Standing Counsel appearing for respondent nos.2 to 4 have contended that the writ petition suffers from inordinate delay and laches having been filed after a lapse of more than 26 years without any explanation for the long delay, and as such the same was liable to be dismissed on the ground of delay and laches alone. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">5. Upon a perusal of the records in the case it is more than apparent that apart from the two representations said to have been submitted in the year 2017 and 2019 there is no other material which has either been referred in the pleadings nor has been placed on record to demonstrate as to when the land was acquired, and no particulars/details in respect thereof have been referred to.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. The Supreme Court in the aforementioned case referred to its earlier judgment in Durga Prashad Vs. Controller of Imports and Exports wherein it had been held that relief under Article 226 of the Constitution of India being discretionary, one ground for refusing relief under Article 226 would be that the petitioner had filed a petition after a delay for which there was no satisfactory explanation. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">8. The judgment in the case of  Narayani Debi Khaitan Vs. State of Bihar may also be referred to for the proposition that the power of  the  High Court under Article 226 to issue an appropriate writ is discretionary and if the petitioner is guilty of laches it may be inappropriate for the High Court to exercise its high prerogative jurisdiction in favour of the petitioner and ends of justice may require that the High Court should refuse to issue a writ.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. Referring to the aforementioned observations in the case of Rabindranath Bose (supra) which were related to Article 32 it was held in the case of Karnataka Power Corporation Ltd. & Anr. Vs. K. Thangappan & Anr. that  a fortiori, they would apply to writ petitions filed under Article 226 as well.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">11. The judgment in the case of  Tridip Kumar Dingal Vs. State of West Bengal may also be referred to wherein it was held that if a petitioner wants to invoke jurisdiction of a writ court, he should come to the court at the earliest reasonably possible opportunity and inordinate delay in making the motion for writ will be a good ground for refusing to exercise </font><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">discretionary   jurisdiction.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>13. The question as to whether mere making of representations would be sufficient to justify filing of a belated writ petition, was considered in the case of Karnataka Power Corporation Ltd. & Anr. Vs. K. Thangappan & Anr. and it was held that mere making  of  representations to the authority concerned cannot justify a belated approach and the courts may refuse to invoke their extraordinary powers if there was negligence or omission on the  part of the  applicant to assert his right within a reasonable time. The judgment in the case of  Durga Prashad (supra) and  Rabindranath Bose  (supra) were also referred to and it was also held that representations would not be adequate explanation to take care of delay and there was a limit to the time which could be considered reasonable for making of representations.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>14. In the case of State of M.P. & Ors. Vs. Nandlal Jaiswal & Ors. it was held that the High Court in exercise of its discretion does not  ordinarily assist the tardy and the indolent or the acquiescent and the lethargic.If there is inordinate delay on the part of the petitioner  and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of thirdparty rights in the meantime is an important factor which also weighs with  the High Court in  deciding whether or not to exercise such jurisdiction.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>15. As regards the relief  claimed  by the  petitioners for a direction for consideration of their representation we may refer to the judgment in the case of C. Jacob Vs. Director of Geology and Mining & Anr. where the need for circumspection and care in issuing directions for \"consideration\" was emphasized and it was held that if the representation on the face of it is stale or does not contain particulars to show and it is regarding a live claim, courts should desist from directing \"consideration\" of such claims.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>17. Following the judgment in the case of C. Jacob (supra) the Supreme Court in Union of India & Ors. Vs. M.K. Sarkar has reiterated   that  before directing  \"consideration\" of a claim or representation the court should examine whether the claim or representation is with reference to a live issue or whether it is with reference to \"dead\" or \"stale\" issue<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>18. In the present case, it is in terms of the representations filed in the year 2017 and 2019 that reliefs are sought to be claimed with regard to payment of compensation in respect of the dispossession said to have been made in the year 1991­92. No material has been placed on record to show that the land was taken over in terms of the land acquisition proceedings. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>19. In this regard we may refer to the case of Syed Maqbool Ali   Vs.   State   of   Uttar   Pradesh   &   Anr.  wherein   a   note   of caution was sounded with regard to entertaining writ petitions filed decades after the dispossession and seeking directions for payment of  compensation,  and  it was held  that belated  writ petitions without proper explanation for the delay were liable to be dismissed.  Notice  was taken of the fact that it was not uncommon for villagers to offer some parts of their lands voluntarily for a public purpose which would benefit them or the community, and when the land is offered for such public purpose the same may be of little or negligible value; however decades later, when the value of the land increases the landholders come up with belated  claims  alleging that their lands were  taken without acquisition and without their consent, and such claims being raised after several decades the State Authorities would be at a disadvantage to contest the claim in the absence of the relevant records being available</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>20. In view of the aforementioned discussion and taking into consideration the fact that in the case at hand, representations which are said to have been submitted by the petitioners are of the year 2017 and 2019 respectively, and the pleadings in the writ petition indicate  that the petitioners were allegedly dispossessed more than quarter of a century ago, some time in the year 1991, we are of the considered view that the present writ petition seeking a direction for consideration of the representations, is grossly barred by delay and laches,  and accordingly we are not inclined to exercise the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>21. No reasons having been given for the inordinate delay in filing the writ petition, the same is dismissed on the ground of laches.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '20a63c162dbf6abc915deffa466856e8.jpeg', 'def8dacc9cdf56785b3895622a4b6d89.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-07', 1, '', '', '2022-04-04 19:14:05', '2022-04-07 09:14:34'),
(1524, 'KrPs406FjsDuKWshQcOErOvHD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Member of Indian Legal Service cannot be appointed as judicial member. Madras High Court strikes down Section 32(2) of the Benami Transaction Act, 1988.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>V. Vasthakumar Vs The Union of India.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 13429 of 2018 decided on 1 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Munishwar Nath Bhandari and Justice D. Bharatha Chakravarthy.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioner, appearing in person, and learned Additional\r\nSolicitor-General appearing for the respondent submit that so far as\r\nthe challenge to the constitutional validity of Section 9 of the Act of\r\n1988 is concerned, the writ petition has become infructuous, as\r\nSection 9 of the Act of 1988 has been deleted.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. In view of the above, the issue that now remains to be\r\nconsidered is the constitutional validity of Section 32(2)(a) of the\r\nAct of 1988.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The petitioner, appearing in person, submitted that the\r\nqualification for appointment as a Judicial Member of the Appellate\r\nTribunal given under Section 32 of the Act of 1988 is now hit by the\r\njudgment of the Apex Court in the case of Union of India v.\r\nR.Gandhi, President, Madras Bar Association, (2010) 11 SCC\r\n1. It is precisely for the reason that for the post of Judicial Member\r\nof the Appellate Tribunal, under the Act of 1988, a Member of\r\nIndian Legal Service who has held the post of Additional Secretary\r\nor equivalent post has been made eligible, while as per the\r\njudgment of the Apex Court cited supra, the post of Judicial Member\r\nshould be manned only by a person who served as a Judge or a\r\nmember of the Bar and not by a member of Indian Legal Service.\r\nIn view of the above, the provision of Section 32(2)(a) of the Act of\r\n1988 is hit by the said judgment and, thus, challenge to it has been made. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Referring to a judgment of the Division Bench on the same\r\nissue in Shamnad Basheer v. Union of India and others, 2015\r\n2 LW 941, the prayer is reiterated because therein a similar\r\nchallenge was made to Section 85 of the Trademarks Act, 1999,\r\nbesides Section 116 of the Patents Act, 1970. Section 85 of the\r\nTrademarks Act was containing a similar provision for appointment\r\nof the Judicial Member as stipulated under Section 32(2)(a) of the\r\nAct of 1988. The provisions therein, i.e., Sections 85(2)(b) and\r\n85(3)(a) of the Trademarks Act, 1999, were declared to be\r\nunconstitutional as those provisions made a member of the Indian\r\nLegal Service eligible for appointment for the post of Chairperson or\r\nJudicial Member of the Intellectual Property Appellate Board.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. A further reference of another judgment of the Division\r\nBench of this court in the case of Revenue Bar Association v.\r\nUnion of India, 2019 4 LW 689, has been given. Therein, the\r\nchallenge was to Sections 109 and 110 of the Central Goods and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Service Tax Act, 2017. It was regarding the constitution of the\r\nAppellate Tribunal and qualification and appointment of the\r\nmembers. The provision making a member of Indian Legal Service\r\neligible to be appointed as Judicial Member in the Goods and\r\nServices Tax Appellate Tribunal was held to be unconstitutional.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. Accordingly, the prayer is to declare Section 32(2)(a) of the\r\nAct of 1988 to be unconstitutional and to suitably amend the\r\nprovision so as to make a person who had served as a Judge or the\r\nmember of the Bar to be eligible to be appointed as Judicial Member\r\nof the Appellate Tribunal.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>8. The writ petition was seriously contested by the side\r\nopposite. It is submitted by learned Additional Solicitor General\r\nthat the members of the Indian Legal Service can be appointed as\r\nJudicial Member of the Appellate Tribunal and Section 32(2)(a) of\r\nthe Act of 1988 should not be declared to be unconstitutional\r\nmerely based on the judgment of the Apex Court in the case of\r\nUnion of India v. R.Gandhi, President, Madras Bar Association.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Learned Additional Solicitor General further submitted that\r\nthe provision under challenge does not offend any constitutional\r\nprovision and that the government was empowered to legislate on\r\nthe subject-matter. The challenge to the provision of the Act of\r\n1988 has been made without raising the issue of the nature\r\nrequired for such challenge. A mere reference of judgment of the\r\nHigh Court and the Supreme Court for that purpose would not be\r\nsufficient to hold a provision to be unconstitutional. The prayer was\r\nmade, accordingly, to dismiss the writ petition.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Section 32(2)(a) of the Act of 1988, quoted above,\r\npostulates the qualifications for appointment of a Judicial Member\r\nand, as per the said provision, a Member of the Indian Legal Service\r\nwho held the post of the Additional Secretary or equivalent post in\r\nthat service is eligible for appointment as a Judicial Member in the\r\nAppellate Tribunal. In view of the provision aforesaid, other than\r\nthe member of the Indian Legal Service, none else other than given\r\nunder sub-section (3) to Section 32 of the Act of 1988 would be\r\neligible to be appointed as Judicial Member of the Tribunal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. The Apex Court while delivering the judgment in the case\r\nof Union of India v. R.Gandhi, President, Madras Bar\r\nAssociation, supra, had dealt with similar provisions so as the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Division Benches in the two judgments, i.e., Shamnad Basheer v.\r\nUnion of India and others; and, Revenue Bar Association v.\r\nUnion of India, supra.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. To analyze the issue, we need to understand the concept\r\nof separation of powers which was otherwise dealt with by the Apex\r\nCourt in the case of Indira Nehru Gandhi v. Raj Narain, 1975\r\nSupp SCC 1. It was held that Indian Constitution indeed does not\r\nrecognize the doctrine of separation of powers in its absolute terms,\r\nbut the function of the different parts or the branches of the\r\ngovernment have been sufficiently differentiated and, consequently,\r\nit can very well be said that our constitution does not contemplate\r\nassumption, by one organ or part of the State, of functions that\r\nessentially belong to another.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. The aforesaid being the position, the concept of separation\r\nof powers is to be analyzed so as to hold that the powers that\r\nremain in the realm of the administration should be exercised by\r\nthem and similarly the exercise of power by the Legislature should <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be within its sphere, making the judicial system independent. The\r\nindependence of the judicial system remains a vital issue and for\r\nthat emphasis was made that there would be separation of powers,\r\nso that independence of judiciary is maintained. It is after referring\r\nto the three organs which have been given in the constitution to\r\nprovide basic structure comprising the Executive, Legislature and\r\nthe Judiciary. It is through each of these organs that the sovereign\r\nwill of the people has to operate and manifest itself and not through\r\nonly one of them. Keeping aforesaid in mind, the judgment was\r\nrendered by the Apex Court in Union of India v. R.Gandhi,\r\nPresident, Madras Bar Association, supra, on an identical issue\r\nraised before us.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16. The constitution of the Selection Committee and for that\r\neven the qualification needs incorporation of such a provision which\r\nmay keep the judicial independence. Qua the Technical Member of\r\nthe Tribunal, appropriate qualification can be provided by the\r\nLegislature, but when the qualification for the post of Judicial\r\nMember is to be provided, it should be keeping in mind the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">independence of the judicial system and, accordingly, the Apex\r\nCourt while delivering the judgment in the case of Union of India\r\nv. R.Gandhi, President, Madras Bar Association, supra, held\r\nthat only Judges and advocates can be considered for appointment\r\nas Judicial Member of the Tribunal.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. The Apex Court while upholding the creation of the\r\nNational Company Law Tribunal as well as the Appellate Tribunal\r\nheld Chapters 1B and 1C of the Companies Act as unconstitutional.\r\nThe principle laid down in the case of Union of India v. R.Gandhi,\r\nPresident, Madras Bar Association, supra, has application to all\r\nthe Tribunals and was not rendered on the fact situation alone. It is\r\nfor that reason a specific direction was given that administrative\r\nsupport for all the Tribunals should be from the Ministry of Law and\r\nJustice. The principal issue decided qua the basic structure of\r\nconstitution ensures the separation of powers and independence of\r\nthe Judiciary from the clutches of the Executive.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. The matter was examined by the Division Bench of this\r\ncourt in the case of Shamnad Basheer v. Union of India and\r\nothers, supra, and considering the issue that the proceedings\r\nbefore the Tribunal would be judicial in nature, the necessity for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appointment of a member from the judiciary or the bar was\r\nrealized. It was for the reason that prior to constitution of the\r\nTribunal, the adjudication of the issue was by the courts.\r\nTherefore, with the constitution of the tribunals, they would be\r\ndischarging the work earlier discharged by the courts and adopting\r\nthe Westminister policy which prescribes the qualification akin to\r\nthat of the judicial officer who has been dealing with such matters\r\nprior to the constitution of the tribunal. The necessity and\r\nimportance of a judicial member and, that too, a person who served\r\nas a Judge or a member of the Bar was felt and, accordingly, the\r\nDivision Bench of this Court held certain provisions of the\r\nTrademarks Act, 1999 and the Patents Act, 1970 to be\r\nunconstitutional.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. It is true that the extent of judicial review that can be\r\nexercised in a given case is quite limited. Though a constitutional\r\ncourt can declare a provision to be unconstitutional, it should not\r\ngive any direction to the Legislature to make an amendment in a\r\nparticular way. The judicial restraint is, therefore, being hailed as a\r\nvirtue. However, in a case where a direction has been given by the\r\nApex Court to have the judicial independence, it is required to be\r\nfollowed by the High Courts as well as the Executive. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20. In view of the position aforesaid, we hold Section 32(2)(a)\r\nof the Act of 1988 to be unconstitutional. The respondents are\r\ndirected to frame the provision keeping in mind the directions of the\r\nApex Court in the case of Union of India v. R.Gandhi, President, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Madras Bar Association, supra. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>The amended provision may be\r\nbrought in immediately.\r\nWith the aforesaid direction, the writ petition is disposed of.\r\nThere will be no order as to costs.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f0fb4c886e31007c782b0173e86b9751.jpeg', '02aa80ecd479dc19c933ebbfe8ee3a0c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-07', 1, '', '', '2022-04-05 18:05:06', '2022-04-07 05:02:20'),
(1525, 'gwNValVtNjcG2N1vsF0VbRkmH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Court cannot receive and admit documents merely reserving liberty to opposite party to object at a later stage. Court must hear and decide immediately when production is objected. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M. Surendra Rao Vs Raveendra Rao an others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 4290 of 2017 decided on 30 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.B Prabhakara Sastry.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2. The present petitioner as a plaintiff therein objected to the marking of the said document, contending that the said document is a compulsorily registerable document, as such, it attracts duty and  the  registration. The Trial Court after hearing both side, in its order dated 04-11-2016 observed that the said document is only a  family agreement and that the ownership rights are not conveyed. Therefore, by imposing a penalty of `1,000/- as ten times of the alleged deficit duty of `100/-, the Trial  Court proceeded to permit the marking of  the  said document as Ex.D-3 on the next date of hearing, i.e. on 15-11-2016, however, after recording in the deposition  sheet that, without prejudice to the rights and  interest  of the plaintiff and reserving right to him, to address his arguments at the time of main argument in the suit. Aggrieved by the said finding recorded by the Trial Court in its orders dated 04-11-2016 and 15-11-2016, the plaintiff in the Trial Court is before this Court as a petitioner.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. It is the argument of the learned counsel for the petitioner (plaintiff) that, the document in question which is at Annexure F (marked as Ex.D-3 by the Trial Court) is in a sense not of mere reporting of the alleged settlement in the family nor a mere agreement, but it is a Relinquishment Deed, wherein the executant of the said document has relinquished his right, title and interest in the immovable property in favour of the other party in the agreement, as such, under Section 17 of the Registration Act, 1908, it is a compulsorily registerable document. In his support, he also relied upon a judgment of the Hon’ble Apex  Court  in  the  case  of  K.  Amarnath  Vs.  Smt. Puttamma reported in ILR 1999 KAR 4634.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Learned counsel for the respondent Nos.1 and 2 in his argument submitted that, the very nomenclature of the document itself would go to show that, it is a family agreement, as such, the concept of relinquishing  of  any right through the said document does not arise. He also submitted that, the Trial Court has permitted the marking of the said document as an exhibit, however, reserving liberty to the plaintiff to agitate his contention regarding exhibiting of the said document at the time of the main arguments in the suit.  Further, it has also collected  the penalty upon the said document.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Learned counsel for respondent No.5 submitted that, a reading of the said  document at Annexure F would  go to show that, it is nothing but a confirmation of the previous settlement that has taken place in the family in the family partition and that the present document which is a family agreement, as such, it neither creates any right, title or interest in favour of any one of the parties nor it intends to create any such thing. However, to get the said arrangements done, a consideration was paid to the executant of the said document. In his support, he relied upon a judgment of the Hon’ble Apex Court in the case of Korukonda  Chalapathi Rao and another Vs. Korukonda Annapurna  Sampath Kumar reported in 2021 SCC OnLine SC 847.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. In K. Amarnath’s case (supra) with respect to admissibility and marking of a document as an Exhibit in a legal proceedings, it was observed that when a document is produced and is sought to be exhibited, the Court should decide whether it is admissible or not, and if it is admitted in evidence, it should be given an Exhibit Number after marking it, as required under Order XIII, Rule 4 of the CPC, but if it is rejected as inadmissible, an endorsement has to be made as prescribed under Order XIII, Rule 6 of the CPC. It was further observed in the very same judgment  in  para-9 that, when a document is produced and sought to be exhibited, the Court should decide whether it is admissible  or not immediately, so that the parties will know whether such document could be relied upon or not. It further observed in para.10 of the very same judgment that, a duty is cast upon every Judge to examine  every document  that  is sought to be marked in evidence. The nomenclature of   the document is not decisive.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>9. Undisputedly, the suit of the plaintiff is one for partition, separate possession and also for rendition of accounts. One of the defence raised by the defendant No.1  in the suit is that, the father of the defendants has settled the suit schedule property in his favour and there was a settlement in the family on 14-03-2008. It is in that context and to show that the plaintiff has got no claim over the said property which is alleged to be the subject matter  of the alleged Settlement Deed, the defendants came  up with the document at ExD-3 (Annexure F) which  is  described as “family agreement” between the two parties.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>10. Section 17 of the Registration Act, 1908, speaks about the documents that are compulsorily registerable. Section 17(1)(b) mentions that, other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property, are compulsorily registerable. (emphasis supplied)</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>11. In the instant case, a reading of Annexure F (Exhibit D-3) in its entirety gives the meaning that, apart from the parties to the agreement acknowledging  the alleged Settlement Deed dated 09-03-2004, have through the present “family agreement” at Annexure F (Ex.D-3) declared the right of the Second Party to the agreement and it is declared that the First Party would not have any claim, right, title and interest over the schedule property and thus, it has resulted in extinguishing of the rights of the First  Party with respect to the schedule property mentioned therein and generation of the rights of the Second Party for  a valuable consideration. Therefore, it (Ex.D-3) is compulsorily a registerable document with  appropriate stamp duty etc. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>12. However, the Trial Court, without looking into these aspects, merely by going into the nomenclature  of  the said Document has treated this as a mere family arrangement. It is needless to say  that  mere  reserving right to the plaintiff to rake up the point at a later stage would not by itself entitle for exhibiting the disputed document in evidence and marking it as an exhibit and getting it admitted. As observed in K. Amarnath’s case (supra), if any such disputes arise, it is the duty of the  Court which records the evidence to then and there itself (immediately) hear on the objections and to decide it regarding the marking of the Document and  its  admissibility. Therefore, merely because the Trial Court has observed that the plaintiff therein who objected to the marking of the said document can agitate his objections at   a later stage in his arguments on the main suit itself would not entitle the party to produce the said Document and to get it marked as an Exhibit and get it admitted in the evidence. As such, the finding of the Trial  Court  in  its orders dated 04-11-2016 and 15-11-2016 which are impugned in this writ petition since do not sustain, they are required to be quashed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>Accordingly the writ petition stands allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd9a36cc89b48b4f9d1419cd4e0ce6c48.jpeg', '97472833aee3416d56a2901b25f3b5b9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-05', 1, '', '', '2022-04-05 20:06:46', '2022-04-06 07:38:10');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1529, 'UMFvdE2IGV7zHIUmOYnl7H0lN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' ‘’No limitation to doing justice.’’ State cannot shield itself behind the ground of delay and laches when relief is sought against forcible dispossession of a person of his private property without following due process of law. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sukh Dutt Ratra and another Vs State of Himachal Pradesh and other.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2773 of 2022 decided on 6 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ravindra Bhat and Justice Pamidighantam Sri Narasimha</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Delay condoned and leave granted. With consent of counsel for the parties,\r\nthe appeal was heard finally. The appellants are aggrieved by final judgment of\r\nthe High Court of Himachal Pradesh at Shimla, disposing their writ petition, with\r\nliberty to institute a civil suit in accordance with law.&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. When it comes to the subject of private property, this court has upheld the\r\nhigh threshold of legality that must be met, to dispossess an individual of their\r\nproperty, and even more so when done by the State. In Bishandas v. State of\r\nPunjab19 this court rejected the contention that the petitioners in the case were\r\ntrespassers and could be removed by an executive order, and instead concluded\r\nthat the executive action taken by the State and its officers, was destructive of the\r\nbasic principle of the rule of law. This court, in another case - State of Uttar\r\nPradesh and Ors. v. Dharmander Prasad Singh and Ors., held:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>“A lessor, with the best of title, has no right to resume possession\r\nextra-judicially by use of force, from a lessee, even after the expiry or\r\nearlier termination of the lease by forfeiture or otherwise. The use of\r\nthe expression \'re-entry\' in the lease-deed does not authorise extrajudicial methods to resume possession. Under law, the possession of\r\na lessee, even after the expiry or its earlier termination is juridical\r\npossession and forcible dispossession is prohibited; a lessee cannot\r\nbe dispossessed otherwise than in due course of law. In the present\r\ncase, the fact that the lessor is the State does not place it in any higher\r\nor better position. On the contrary, it is under an additional inhibition\r\nstemming from the requirement that all actions of Government and\r\nGovernmental authorities should have a \'legal pedigree\'”.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. Given the important protection extended to an individual vis-a-vis their\r\nprivate property (embodied earlier in Article 31, and now as a constitutional right\r\nin Article 300-A), and the high threshold the State must meet while acquiring\r\nland, the question remains – can the State, merely on the ground of delay and\r\nlaches, evade its legal responsibility towards those from whom private property\r\nhas been expropriated? In these facts and circumstances, we find this conclusion\r\nto be unacceptable, and warranting intervention on the grounds of equity and\r\nfairness.&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. When seen holistically, it is apparent that the State’s actions, or lack\r\nthereof, have in fact compounded the injustice meted out to the appellants and&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">compelled them to approach this court, albeit belatedly. The initiation of\r\nacquisition proceedings initially in the 1990s occurred only at the behest of the\r\nHigh Court. Even after such judicial intervention, the State continued to only\r\nextend the benefit of the court’s directions to those who specifically approached\r\nthe courts. The State’s lackadaisical conduct is discernible from this action of\r\ninitiating acquisition proceedings selectively, only in respect to the lands of those\r\nwrit petitioners who had approached the court in earlier proceedings, and not\r\nother land owners, pursuant to the orders dated 23.04.2007 (in CWP No.\r\n1192/2004) and 20.12.2013 in CWP No. 1356/2010) respectively. In this\r\nmanner, at every stage, the State sought to shirk its responsibility of acquiring\r\nland required for public use in the manner prescribed by law.</span><span style=\"font-size: 12pt;\">&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. There is a welter of precedents on delay and laches which conclude either\r\nway – as contended by both sides in the present dispute – however, the specific\r\nfactual matrix compels this court to weigh in favour of the appellant-land owners.\r\nThe State cannot shield itself behind the ground of delay and laches in such a\r\nsituation; there cannot be a ‘limitation’ to doing justice. This court in a much\r\nearlier case - Maharashtra State Road Transport Corporation v. Balwant Regular\r\nMotor Service, held:&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>\"Now the doctrine of laches in Courts of Equity is not an arbitrary or\r\na technical doctrine. Where it would be practically unjust to give a\r\nremedy, either because the party has, by his conduct, done that which\r\nmight fairly be regarded as equivalent to a waiver of it, or where by\r\nhis conduct and neglect he has, though perhaps not waiving that\r\nremedy, yet put the other party in a situation in which it would not be\r\nreasonable to place him if the remedy were afterwards to be asserted\r\nin either of these cases, lapse of time and delay are most material.\r\nBut in every case, if an argument against relief, which otherwise\r\nwould be just, is founded upon mere delay, that delay of course not\r\namounting to a bar by any statute of limitations, the validity of that\r\ndefence must be tried upon principles substantially equitable. Two\r\ncircumstances, always important in such cases, are, the length of the\r\ndelay and the nature of the acts done during the interval, which might&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">affect either party and cause a balance of justice or injustice in taking\r\nthe one course or the other, so far as relates to the remedy.\"</span><span style=\"font-size: 12pt;\">&nbsp;</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. The facts of the present case reveal that the State has, in a clandestine and\r\narbitrary manner, actively tried to limit disbursal of compensation as required by\r\nlaw, only to those for which it was specifically prodded by the courts, rather than\r\nto all those who are entitled. This arbitrary action, which is also violative of the\r\nappellants’ prevailing Article 31 right (at the time of cause of action),\r\nundoubtedly warranted consideration, and intervention by the High Court, under\r\nits Article 226 jurisdiction.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. Having considered the pleadings filed, this court finds that the contentions\r\nraised by the State, do not inspire confidence and deserve to be rejected. The State\r\nhas merely averred to the appellants’ alleged verbal consent or the lack of\r\nobjection, but has not placed any material on record to substantiate this plea.\r\nFurther, the State was unable to produce any evidence indicating that the land of\r\nthe appellants had been taken over or acquired in the manner known to law, or\r\nthat they had ever paid any compensation. It is pertinent to note that this was the\r\nState’s position, and subsequent findings of the High Court in 2007 as well, in\r\nthe other writ proceedings.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. This court is also not moved by the State’s contention that since the\r\nproperty is not adjoining to that of the appellants, it disentitles them from\r\nclaiming benefit on the ground of parity. Despite it not being adjoining (which\r\nis admitted in the rejoinder affidavit filed by the appellants), it is clear that the\r\nsubject land was acquired for the same reason – construction of the Narag Fagla\r\nRoad, in 1972-73, and much like the claimants before the reference court, these\r\nappellants too were illegally dispossessed without following due process of law&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">thus resulting in violation of Article 31 and warranting the High Court’s\r\nintervention under Article 226 jurisdiction. In the absence of written consent to\r\nvoluntarily give up their land, the appellants were entitled to compensation in\r\nterms of law.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. Concluding that the forcible dispossession of a person of their private\r\nproperty without following due process of law, was violative of both their\r\nhuman right, and constitutional right under Article 300-A, this court allowed the\r\nappeal. We find that the approach taken by this court in Vidya Devi (supra) is\r\nsquarely applicable to the nearly identical facts before us in the present case.&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. In view of the above discussion, in view of this court’s extraordinary\r\njurisdiction under Article 136 and 142 of the Constitution, the State is hereby\r\ndirected to treat the subject lands as a deemed acquisition and appropriately\r\ndisburse compensation to the appellants in the same terms as the order of the\r\nreference court dated 04.10.2005 in Land Ref. Petition No. 10-LAC/4 of 2004\r\n(and consolidated matters). The Respondent-State is directed, consequently to\r\nensure that the appropriate Land Acquisition Collector computes the\r\ncompensation, and disburses it to the appellants, within four months from today.\r\nThe appellants would also be entitled to consequential benefits of solatium, and\r\ninterest on all sums payable under law w.e.f 16.10.2001 (i.e. date of issuance of\r\nnotification under Section 4 of the Act), till the date of the impugned judgment,\r\ni.e. 12.09.2013.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. For the above reasons, the appeal is allowed and the impugned order of the\r\nHigh Court is hereby set aside. Given the disregard for the appellants’\r\nfundamental rights which has caused them to approach this court and receive&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">remedy decades after the act of dispossession, we also deem it appropriate to\r\ndirect the Respondent-State to pay legal costs and expenses of ? 50,000 to the\r\nappellants. Pending applications, if any, are hereby disposed of.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c4283b59a5bbb2b76a62f868becec1ac.jpeg', '459ae707a09cd6e796aac370dbfd7858.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-06', 1, '', '', '2022-04-06 22:28:40', '2022-04-06 13:05:52'),
(1526, 'FRagdjH77Jti4mKVaq5yJeWab', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Google cannot allow keywords that infringe trademark. It has an obligation to investigate complaints alleging keywords resulting in diversion of traffic from website of trademark owner to that of infringer. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>DRS Logistics Pvt Ltd and others Vs Google India Pvt Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CS (COMM) 1 of 2017 decided on 30 October 2021.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V. Kameshwar Rao.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">5. It is the case of the plaintiff that several third party\r\ninfringers use the services of Google for inserting their\r\ninfringing advertisements when a user on the internet looks for\r\nthe plaintiff by typing “Agarwal Packers & Movers”. Plaintiff\r\nhas moved against third parties and despite having decrees in its\r\nfavour it states that Google did not stop the use of infringing\r\nadvertisements on their platforms. He stated that one party\r\nnamely Agarwal Packers India (Agarwal Express Links Pvt.</span><span style=\"font-size: 12pt;\">Ltd.) against whom a decree has been passed, continues to\r\nappear in the keyword, Ad-title and URL.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>6. It is the case of the plaintiff that obtaining orders against\r\nindividual advertisers on the Google platform was ineffective\r\nand it is due to this reason that the plaintiff was compelled to\r\ninitiate the present suit against defendant Nos. 1 & 3 and\r\ndefendant No.2 i.e. Just Dial. Mr. Lall has pointed to the\r\naverments made in the plaint wherein it has been stated that the\r\nplaintiff has been asked to pay more money or else the\r\ndefendants would advertise the infringers of the plaintiff’s\r\nbrand on their website.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>7. Mr. Lall argued that these actions of the defendants\r\namount to blackmailing through the AdWords Program. He has\r\nargued that there are numerous tutorials available online which\r\nsuggest that by bidding for one’s own brand, which is used as a\r\nkeyword by the Google AdWord Services the owner can protect\r\nthe advertisement panels on the search engine result page from\r\nbeing used by the competitors and from stopping the\r\ncompetitors from stealing the traffic. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. It is the case of Mr. Lall that the suit has been initiated\r\nagainst Google alone and not against their customers who use\r\nGoogle services, which are constantly changing. The suit targets\r\nthe mechanism of Google and the cause of action relates to all\r\nactivities where the registered trademark of the plaintiff is used\r\nto direct internet traffic to the website of the infringer and seeks\r\ninjunction from using the same as a keyword / meta tag, etc.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. He has pointed out, that at the time of filing of the suit\r\nbrand infringement was permissible on Google by use of\r\nregistered trademarks in the ad-title and ad-text as also in the\r\nURL and of course keywords. However, Google has agreed to\r\nblock the trade mark “Agarwal Packers & Movers” and other\r\nsimilar marks of the plaintiff from appearing in the Ad-title and\r\nAd-text. According to him, on URL, the defendants in their\r\nwritten statement in paragraph 14 have also stated that, in terms\r\nof the policies of Google Inc., which are implemented by\r\nGoogle Inc, itself no registered trademarks will be displayed in\r\nthe Ad-text and Ad-title of an advertisement or sponsored link.\r\nThe trademarked term would also not appear in the URL of the  advertisement and that the said policies would be applicable to\r\nthe plaintiff as well.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. According to him, on the issue of keywords, Google had\r\nasserted that it only implements the policy to restrict keywords\r\nin certain countries which include China but does not include\r\nIndia. Mr. Lall has pointed to the policy of Google as existing\r\nbefore the Madras High Court in Consim Info Pvt. Ltd. vs.\r\nGoogle India Pvt. Ltd. & Ors. 2011 (45) PTC 575 (Mad) (SJ)\r\n(‘Consim I’ hereinafter) and Consim Info Pvt. Ltd. vs. Google\r\nIndia Pvt. Ltd. & Ors. 2013 (54) PTC 578 (Mad) (DB)\r\n(‘Consim II’ hereinafter) to list the countries where it restricts\r\nthe use of keywords. However, when it comes to India the\r\ndefendant Nos. 1 and 3 have stated that Google would not\r\ninvestigate or restrict the use of a trademark term in keywords,\r\neven if a trademark complaint is received. According to him,\r\nGoogle does not consider use of trademarks as keywords as use,\r\nor infringement of a registered trademark</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>48. Mr. Kshitij Parashar learned Counsel who appears for\r\ndefendant No.2, Justdial Ltd. has argued that the main objective\r\nof defendant No. 2 is to provide people with immediate access\r\nto fast, reliable and comprehensive information on businesses,\r\nproducts and services across India and that the database of\r\ndefendant No.2 comprises of approximately 6 million business\r\nlistings across various cities and towns in India as of June 30,\r\n2011. It has been submitted that defendant No.2 Company\r\nprovide two types of listing i.e. Free/Non-Paid listing and Paid\r\nListing to the business entities who want to register at the\r\nsearch engines of the defendant No.2. It was also submitted that\r\nmany users or business entities register themselves as the\r\nFree/Non-paid Listers and that these Free/Non-paid Listing of\r\nthe user or the business entity can be created by any person by\r\njust logging on the website of the of the defendant No.2\r\nCompany and thereafter by entering the details of their business\r\nentity or services which they intend to provide. In this regard he\r\nhas placed reliance on the screenshots of the website of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">defendant No.2 reproduced in their written statement. He stated\r\nthat the information so entered needs to be validated through a\r\nmobile verification of the person making such an entry and once\r\nthe validation is done the entry goes live. Once this is done, the\r\nusers can visit and change the company details as per their\r\nrequirement. He has stated that the defendant No.2 also\r\nprovides an option of “REPORT ABUSE”, through which if\r\nany wrong details have been updated for any company the user\r\nor the affected party can comment on it which gets rectified on\r\na priority basis.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>49. He then went onto to explain the Paid listing option\r\nwhich is available on the website of defendant No.2 where any\r\nprospective user who wishes to avail the services of the\r\ndefendant No.2 has to pay a certain amount to defendant No.2.\r\nThe process of paid listing has been explained as under:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. A telemarketing executive of the defendant No.2\r\nwould schedule an appointment with the\r\nprospective Advertiser.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ii. Thereafter the prospective Advertiser would be\r\nvisited by the Marketing Executive of the defendant No.2, who would then explain to him the\r\nvarious categories of listing e.g. platinum,\r\ndiamond, gold, etc. along with the different\r\npayment options.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>iii. Once the mode of payment and the contract\r\namount is finalised, the prospective Advertiser\r\nwould then sign a contract with defendant No.2\r\nafter agreeing to the terms and conditions therein.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>iv. Only after the contract is finalised and the\r\nformalities completed the information of the said\r\nAdvertiser would go live on the website of\r\ndefendant No.2.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>v. Any customer who calls the defendant No.2 for an\r\ninquiry regarding the services which are also\r\nprovided by the said Advertiser, only once a\r\nconfirmation is received from the said customer the\r\ndefendant No.2 shares the customer’s number with\r\nthe advertiser.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>50. He explained that the basic difference between the\r\nFree/Non-Paid listing and the Paid Listing is that the Paid <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Listing Advertisers would get leads from the defendant No.2\r\nCompany on the instance when any customer calls the helpline\r\nnumber of the defendant No.2 for certain inquiries regarding\r\nany service/goods. That the information retrieval officer (IRO)\r\nafter responding to the said inquiry of the customer also\r\nsuggests similar services which are also being provided by other\r\ncompany(s) and once the customer is satisfied and confirms that\r\nhis information can be shared, it is then forwarded with the paid\r\nlisting advertisers of defendant No.2.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">51. It is the case of the defendant No.2 Company, that it\r\ncannot keep a regular watch on the free listing or the paid\r\nlisting. Defendant No. 2 Company believes the information\r\nprovided by any prospective advertiser to be correct and\r\ngenuine. That in case a person is listed as a free lister/paid lister\r\nhe can change his information as and when he wants and it is\r\npractically impossible for the defendant No.2 to keep a regular\r\nwatch on it. He reiterated the option of “REPORT ABUSE”\r\nwherein if a wrong detail is updated for any company, the user\r\nor the affected party can comment on it, after which it gets\r\nrectified on a priority basis. Mr. Parashar has referred to the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that the defendant No.2 would not examine the\r\nauthenticity/reputation of the advertisers and the same would be\r\nthe sole responsibility of the advertiser. He has referred to the\r\nterms and conditions of the contract which specifically states\r\nthat defendant No.2 does not have any liability towards the\r\ninformation which is being provided by the listers and the same\r\nbelongs to the listers alone.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">52. It is the case of Defendant No.2 that, it has not put any\r\nadvertisement on its website infringing the\r\ntrademarks/copyright of the plaintiff. It has been argued that the\r\nlisting which has been questioned, does not belong to the\r\nplaintiff as it is DRS LOGISTIC and not DRS LOGISTICS. Mr.\r\nParashar has referred to the screenshots which have been\r\nreproduced in the written statement of defendant No.2. It is the\r\ncase of defendant No.2 that it has not infringed upon the\r\ntrademark or copyright of the plaintiffs and that it is also not\r\ngaining any monetary benefits from the free listing as the same\r\nhave been provided by defendant No.2 for the sake of\r\nconvenience to the general public.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>118. In Intercity Group (NZ) (supra) and NZ Fintech\r\n(supra), the same were relied upon by Mr. Sethi to contend that\r\ntrademark as keyword are not seen or known or understood by a\r\nconsumer and the same is not be taken as anything let alone\r\namounting to use of trademark. The said judgment is in the\r\ncontext of laws of New Zealand which are different from those\r\nin India and Mr. Lall is right in contending that Section 89 of\r\nthe New Zealand Act does not include advertisement as\r\ninfringement, which position is otherwise in this country as I\r\nhave referred to the provisions of Section 29 (6) and Section 29\r\n(8) of the TM Act. Even in Intercity Group (NZ) (supra), the\r\naverage consumer has been taken to be well-informed and\r\nreasonably observant but even so the Court has observed that\r\nthere may exist a possibility of confusion as the case before the\r\nNew Zealand Court was that the advertiser had bid on the trademark as keyword being InterCity, which appeared on the\r\nsearch engine results page along with the website of the\r\nadvertiser. In NZ Fintech (supra), the plaintiff therein had\r\nalleged that the defendant therein was using its mark\r\n“MOOLA” as a keyword. Whether such use resulted in\r\nsufficient number of consumers perceiving such use by the\r\ndefendant therein to be a use of the trademark, was to be a\r\nmatter of trial. These judgments therefore are distinguishable\r\non facts. However, the New Zealand Court too in both the\r\naforementioned judgments had interpretated their own law to\r\nmean that the use of trademark as a keyword, amounts to use in\r\nthe course of trade. The question which further needs to be\r\ntried through the trial is whether there is a difference in the\r\nsearch engine results page when searching with capital letters,\r\nspaces, symbols such as hyphens, etc. and the difference\r\nthereof. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>119. In so far as the reliance placed in Cochrane Steel\r\nProducts (supra) is concerned, Mr. Sethi contended that it is\r\nunnatural for a consumer to get mislead by a clearly labelled Ad\r\nwhich identifies the source. If neither the advertisement nor the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">advertisers’ website contains any reference to the trademark\r\nowners products or services, then no confusion exists nor there\r\nis any evidence that any actual confusion existed and as per\r\ncommon market practice, advertisements are placed close to the\r\ncompetitors’ advertisements in a yellow book. The trademark\r\nof the appellant therein was “CLEARVU” which was itself an\r\nunregistered mark. Wherein it was also held by the Court that\r\nthe organic search result were clearly distinguishable from that\r\nof the sponsored search result. The said judgment has no\r\napplicability as the judgment has held that the average\r\nconsumer in South Africa to be a person who is normally\r\ninformed and reasonably observant internet user, which may not\r\nbe the position in the Indian context. The case of Esquire\r\nElectronics Ltd. (supra) is distinguishable from the case at\r\nhand as the issue to be decided by the South African Court\r\npertained to trading in prerecorded video tapes upon which a\r\nregistered trademark was recorded through magnetic signals.\r\nNeedless to state, that the facts at hand are very different to the\r\none sought to be relied upon by the counsels for Google even so </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the judgment has to be read in the context of the South African\r\nLaws.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>120. Reliance has been placed in Nebo (supra) by Mr. Sethi to\r\ncontend that the keywords do not form part of advertisement\r\ncannot be used for identifying a particular ad as the same\r\nkeyword may be used for multiple advertisements. Users do\r\nnot know the basis of which keyword, a particular\r\nadvertisement is shown or which keyword co-relates with the\r\nsaid advertisement. In other words, keywords do not create a\r\npossibility of confusion of any products of owner with that of\r\nthe advertisement. I am not in agreement with the submission\r\nmade by Mr. Sethi more so with regard to my conclusions\r\nabove and in the context of law laid down by the Indian Courts\r\nof which a reference has been given above. Even on facts this\r\ncase is distinguishable as the search engine involved in the said\r\ncase was Yandex and the policies governing the advertisements\r\nthrough keywords is different from that of Google in the present\r\ncase. Be that as it may, the statutory law governing trademark\r\nlaw is very different in Russia as compared to that of the Indian\r\nLaws. As I have already concluded above, that use of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">trademarks as keywords amounts to use in the course of trade in\r\nterms of the TM Act and the judgments of the Indian Courts in\r\nthis regard, this case provides no succour to the case of the\r\ncounsels for Google.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>121. By relying upon the judgment in the case of Alzheimer’s\r\nDisease and Related Disorders Association (supra) the\r\ncontention of Mr. Sethi primarily is that trademark as keywords\r\nalone without additional behavior that confuses consumers is\r\nnot actionable. In Jive Commerce LLC (supra), consumers are\r\nunlikely to be confused as the sponsored links clearly marked as\r\nAd and the owner’s Ad being directly below the sponsored\r\nsearch result in the organic search result there cannot be any\r\nconfusion. These judgements of the Courts of the United States\r\nof America do not avail the case of Google, since in the case of\r\nAlzheimer’s Disease and Related Disorders Association\r\n(supra) the Court therein had opined that the mark in question\r\nwas weak and since the consumers were searching for a generic\r\nterm, therefore the likelihood of confusion was less. Similar\r\nposition exits in the case of Jive Commerce LLC (supra)\r\nwherein the mark of the plaintiff / owner was not registered, it <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">remained unclear under which class the said mark therein was\r\nto be categorised even in which case the Court came to a\r\nconclusion that the mark was either descriptive or suggestive\r\nwhich is not the case here. Similar is the position in Passport\r\nHealth (supra) where the mark of the trademark owner being\r\n“PASSPORT HEALTH” was considered to be weak and the\r\nCourt had observed that the sponsored results could easily be\r\ndifferentiated from the organic results as they were appearing\r\non the right-hand side titled with the words “related searches”,\r\nthis position no longer exits as of now.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">122. Mr. Sethi has also placed reliance on the judgment in the\r\ncase of Matrimony.com Ltd. (supra) of Competition\r\nCommission of India to contend that Google keyword bidding\r\nprocess promotes competition and provides some benefits and\r\nchoice as compared to traditional advertising. To this\r\nsubmission, Mr. Sethi has accepted the fact that the trademark\r\ncan be used as a keyword to divert the traffic from the website\r\nof the owner to that of the advertiser to encourage competition\r\nthis according to this Court may in a given case amount to\r\ninfringement and / or passing off.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>123. Mr. Sethi has relied upon Havells India Ltd. (supra) to\r\ncontend that advertisement is a part of free speech and right to\r\ncarry any business. Competitors use of trademark is protected\r\nwithin the ad-text of a competitor provided the competitive\r\nadvertisement under Section 29 (6) and 29 (8) of TM Act are\r\ncomplied with. There cannot be any dispute, that the\r\nadvertisement is part of free speech, but surely that free speech\r\ncannot be at the cost of the trademark of an owner which\r\namounts to a misleading advertisement.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>124. Fischerwerke GmbH & Co. (supra) is on similar\r\nproposition that use of third-party trademarks does not\r\nconstitute trademark infringement. Reliance on this case is\r\nmisplaced due to the reason that firstly, that the search engine\r\ninvolved in that case was Baidu and not Google and; secondly\r\nthe advertising policy of the said search engine has not been\r\nproduced before this Court and even the law related to\r\ntrademarks in that case is different to the case at hand. As per\r\nthe stand of Google that up to 2013, even they did not allow the\r\ntrademarks to be used as keywords in China, whether this <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">position changed after the judgment in the relied upon case is\r\nunclear.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">125. In so far as the submission of Mr. Sethi that Google\r\ninvestigates the Ads which under its counterfeit /\r\nmisrepresentation policy is concerned, the same does not\r\nanswer the use of trademark as keyword by an advertiser as\r\ninfringement of trademark. Even if Google under the\r\nmisrepresentation policy investigates an infringing Ad but only\r\nafter a complaint, there is no doubt that the usage of trademark\r\nas keyword results in diversion of the traffic from the website of\r\nthe trademark owner to the webpage of the advertiser which\r\ncauses prejudice to the owner of the trademark in terms of\r\ngoodwill and credibility with respect to the services and should\r\nbe investigated by Google. In a way the advertiser through\r\noblique motives is cashing upon the goodwill of the trademark\r\nowner for his own benefit and through which process Google is\r\nearning revenue and as such is equally liable for the omissions\r\nand commissions of the advertiser. It also follows that when the\r\nuse of trademark as a keyword constitutes infringement /\r\npassing off which amounts to violation of rights accrued in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">favour of the proprietor under the provisions of the TM Act\r\nthen on the same analogy that Google investigates\r\nadvertisements which are prohibited under law, Google should\r\nalso investigate the advertisements in this case as well.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>127. I must state here that the plaintiff can seek protection of\r\nits trademarks which are registered in view of Section 28 of the\r\nTM Act, but cannot have any right on surnames / generic words <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">like Packers or Movers individually. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Having said that in view\r\nof my above discussion, the applications are liable to be\r\nallowed, subject to final determination of the suit in the\r\nfollowing manner:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(I) The defendant Nos.1 and 3 shall investigate any\r\ncomplaint to be made by the plaintiff to them\r\nalleging use of its trademark and its variations as\r\nkeywords resulting in the diversion of traffic from\r\nthe website of the plaintiff to that of the advertiser.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(II) The defendant Nos.1 and 3 shall also investigate\r\nand review the overall effect of an Ad to ascertain\r\nthat the same is not infringing / passing off the\r\ntrademark of the plaintiff.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(III) If it is found that the usage of trademark(s) and its\r\nvariations as keywords and / or overall effect of the\r\nAd has the effect of infringing / passing off the\r\ntrademark of the plaintiff then the defendant Nos.1\r\nand 3 shall restrain the advertiser from using the\r\nsame and remove / block such advertisements.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>128. I must also state here that the case of defendant No.2,\r\nwho has been made as a party, is as noted in paragraphs 48 to\r\n52 above, it is clear that defendant No.2 is not using the\r\nmechanism of providing trademarks as keyword for triggering\r\nthe ads. This stand has been taken on record and the defendant\r\nNo.2 shall remain bound by their statement.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '324c2e413b83b304a5fc1f799ef4a6d5.jpg', '645846b44c508616405623604503a90a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-06', 1, '', '', '2022-04-05 20:55:34', '2022-04-06 06:41:36');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1527, 'bh4d8v8W5Yy5iTPfBZIIJ3ZiT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Preemption under the West Bengal Land Reforms Act, 1955. Non-notified co-sharer is entitled to bring a petition for preemption within a period of three years from the date of registration of the impugned document of sale. Calcutta High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Abdul Khelak Vs Sanat Kumar Roy.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>C.O 1339 of 2010 decided on 19 September 2014.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sanjib Banerjee.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sufficient grounds have been made out as to\r\nwhy the petitioner was not represented on March\r\n28, 2014 when C.O. 1339 of 2010 was dismissed\r\nfor default.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner complains of the errors\r\ncommitted by both the trial court and the appellate\r\ncourt in failing to appreciate the effect of the nonservice of the notice contemplated under Section\r\n5(5) of the West Bengal Land Reforms Act, 1955 on\r\na co-sharer in regard to the time for applying\r\nunder Section 8 of the Act for asserting a right of\r\npre-emption. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner was not notified of the\r\ntransfer and applied for pre-emption within a\r\nperiod of three years from the date of registration\r\nof the impugned deed of transfer.\r\nSection 8 of the Act permits a co-sharer of a\r\nraiyat in the plot of land to assert a right of\r\npurchase of the relevant land “within three months\r\nof the service of the notice given under sub-section\r\n(5) of Section 5” of the Act.\r\nSection 5(5) obliges the revenue officer or the\r\nregistering authority to transmit a notice to the\r\nauthority referred to in Section 5(1)(b)(i) of the Act <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for such authority to serve notices on the cosharers referred to in Section 5(4) of the Act by\r\nregistered post and cause copies of the notice to be\r\naffixed on the plot of land and in the court-house\r\nor in the office of the revenue officer or the office of\r\nthe registering officer. Section 5(4) of the Act\r\nrequires the transferor or transferee filing notices\r\nto give particulars of the transfer in the prescribed\r\nform for the service thereof on all co-sharers of the\r\nplot of land proposed to be transferred, such that\r\nthe co-sharers, who are not parties to the transfer,\r\nare made aware of the transfer.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Thus, it is evident that the weak right of preemption recognised under Section 8 of the Act is\r\navailable for assertion to a co-sharer within three\r\nmonths of the receipt of the notice under Section\r\n5(5) of the Act. However, Section 8 of the Act does\r\nnot specify the time for applying under such\r\nprovision in the event a co-sharer is not issued a\r\nnotice under Section 5(5) of the Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Section 29(2) of the Limitation Act, 1963\r\nmandates that where any special or local law\r\nprescribes any period of limitation, inter alia, for\r\nany suit, different from the period prescribed by\r\nthe Schedule to the Limitation Act, “the provisions\r\ncontained in Sections 4 to 24 (inclusive) shall apply\r\nonly so far as, and to the extent to which, they are\r\nnot expressly excluded by such special or local\r\nlaw.” It is doubtless, notwithstanding such\r\nprovision, that Section 5 of the Limitation Act\r\nwould not apply to Section 8 of the Act of 1955\r\nsince proceedings under Section 8 of the Act of\r\n1955 are original proceedings.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>By virtue of Section 29(2) of the Limitation\r\nAct, the time available for a co-sharer to assert a\r\nright under Section 8 of the Act of 1955 is the\r\nperiod of three months from the date of receipt of\r\nthe notice. As Section 5 of the Limitation Act\r\nwould not apply to original proceedings under\r\nSection 8 of the Act of 1955, the right can no\r\nlonger be asserted after the expiry of the period of\r\nlimitation unless the period of limitation is\r\nexcluded. There is a distinction between the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">exclusion of the period of limitation and the\r\ncondonation of delay for the filing of any\r\nproceedings. When a period is excluded, for\r\ninstance under Section 14 of the Limitation Act,\r\n1963, the computation of the period of limitation is\r\nmade by disregarding the period which is excluded.\r\nCondonation of delay, on the other hand, is\r\nexcusing a part of time spent by the litigant\r\nwithout approaching the forum for the appropriate\r\nremedy.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 29(2) of the Limitation Act implies\r\nthat while a delay cannot be condoned in the\r\nmatter of institution of original proceedings, if a\r\nright is conferred under any special or local law\r\nand the operation of the provisions as to exclusion\r\nof time recognised in the Limitation Act are not\r\nprohibited by such special or local law, a party\r\napplying under the special or local law would be\r\nentitled to the benefit of exclusion of time under\r\nthe Limitation Act.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In any event, Section 29(2) of the Limitation\r\nAct recognises that a different period of limitation\r\nprescribed other than the period indicated in the\r\nSchedule to the Limitation Act would apply to a\r\nspecial or local law. In the case of a co-sharer who\r\nhas been issued notice under Section 5(5) of the\r\nAct of 1955, the period of limitation prescribed in\r\nSection 8 of the Act of 1955 itself is three months.\r\nSection 8 of the Act does not imply that a co-sharer\r\nof a raiyat in the plot of land, who has not been\r\nserved a notice under Section 5(5) of the Act of\r\n1955, has no right of pre-emption. The wording of\r\nSection 8 of the Act of 1955 is such that it is\r\nevident that a period of limitation has been\r\nprescribed by such special law in respect of a cosharer of the raiyat in the plot of land who has\r\nbeen served a notice under Section 5(5) of the Act\r\nof 1955; but the period of limitation for a co-sharer\r\nof the raiyat in the plot of land who has not been\r\nissued a notice under Section 5(5) of the Act of\r\n1955 has not been prescribed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>By virtue of Section 29(2) of the Limitation\r\nAct, the right of a non-notified co-sharer would be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">governed by the appropriate provision in the\r\nSchedule to the Limitation Act.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Article 97 of the Schedule to the Limitation\r\nAct deals with a right of pre-emption under any\r\ngeneral law. When a right of pre-emption is\r\nexercised under any special or local law in\r\nconditions which are separated from the general\r\nlaw which allows pre-emption, Article 97 of the\r\nLimitation Act would not apply; but the residuary\r\nArticle pertaining to original actions – Article 113\r\nthereof – would apply.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\nArticle 113 of the Limitation Act provides a\r\nperiod of three years reckoned from the date of\r\naccrual of the cause of action to be the period of\r\nlimitation for any suit (or original proceedings) for\r\nwhich no period of limitation is provided elsewhere\r\nin the Schedule. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The date of registration of the document of\r\ntransfer is the date when the document comes to\r\nthe public domain and a person is deemed to have\r\nknowledge of the document from such date. Thus,\r\na non-notified co-sharer is entitled to bring a\r\npetition for pre-emption under Section 8 of the Act\r\nof</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1955 within a period of three years from the\r\ndate of registration of the impugned document of\r\nsale.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The opposite parties rely on a judgment\r\nreported at (2004) 4 SCC 252 (Gopal Sardar v.\r\nKaruna Sardar). Paragraph 19 of the report is\r\nplaced for the proposition therein that in\r\nproceedings of original nature, Section 5 of the\r\nLimitation Act would not apply. The proposition is\r\nelementary and requires no repetition. However,\r\nthe matter in issue in Karuna Sardar was whether\r\nthe owner of a contiguous plot could seek the\r\nbenefit of Section 5 of the Limitation Act beyond\r\nthe period of four months prescribed in Section 8\r\nof the Act of 1955 to assert a right under such\r\nprovision. The obvious answer to the question was\r\nrendered by the Supreme Court that since the\r\nright canvassed under Section 8 of the Act of 1955\r\nwould make the proceedings therefor to be original\r\nin nature, the period prescribed by the special or <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">local law would be the period of limitation as no\r\nbenefit under Section 5 of the Limitation Act could\r\nbe conferred in respect of original proceedings.\r\nThe judgment has no bearing on the facts or the\r\nlegal issue in this case.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The legal view expressed in the present\r\njudgment is not original, in the sense that a similar\r\nview has been taken by this court in previous\r\nmatters. However, since the aspect pertaining to\r\nSection 29(2) of the Limitation Act may not have\r\nbeen considered in great detail in some of the\r\nprevious judgments rendered on this aspect, an\r\namplification is made to the existing view of this\r\ncourt.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>C.O. 1339 of 2010 is allowed by setting aside the order\r\nimpugned dated March 3, 2010 passed in Misc. Appeal No.41 of\r\n2008 and Order No.89 dated February 27 of 2008 passed in Misc.\r\nCase No.16 of 1999. As a consequence, the matter is remanded for\r\nfresh consideration before the original court. The Civil Judge\r\n(Junior Division) 1st Court at Chandernagore is requested to take up\r\nthe pre-emption petition and consider the same on merits upon\r\nregarding the petition to have been filed within the period of\r\nlimitation.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>There will be no order as to costs</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4910bf2d91d57eeb9b518e308fbe6dc8.jpeg', 'dd0edafcb2be131f1424f993744f0977.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-05', 1, '', '', '2022-04-05 21:47:52', '2022-04-05 16:19:00'),
(1528, 'fJIuXyDZSjhpIGdDNZP3vexmJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Whether corporate death of an entity upon amalgamation per se invalidates an assessment order cannot be determined on a bare application of the provisions in the Companies Act but would depend on the terms of the amalgamation. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Principal Commissioner of Income Tax Vs Mahagun Realtors Pvt Ltd<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2716 of 2022 decided on 5 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Uday Umesh Lalit and Justice S. Ravindra Bhat.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">1. Special leave to appeal granted. With consent of counsels, this appeal was\r\nheard finally. This appeal arises from an order1 of the Delhi High Court rejecting\r\nthe appeal, by the present appellant (hereafter “the revenue”) and affirming the\r\norder of the Income Tax Appellate Tribunal (ITAT) which quashed the\r\nassessment order against the assessee (i.e., the respondent in this case).</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The respondent-assessee company, Mahagun Realtors Private Limited\r\n(hereafter variously referred to as “MRPL”, “the amalgamating company” or the\r\n“transferor company”), was engaged in development of real estate and had <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">executed one residential project under the name “Mahagun Maestro” located in\r\nNoida, Uttar Pradesh. MRPL amalgamated with Mahagun India Private Limited\r\n(herein after ‘MIPL’) by virtue of an order2 of the High Court (dated 10.09.2007).\r\nIn terms of the order and provisions of the Companies Act, 1956, the\r\namalgamation was with effect from 01.04.2006.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. The amalgamation of two or more entities with an existing company or\r\nwith a company created anew was provided for, statutorily, under the old\r\nCompanies Act, 19569\r\n, under Section 394 (1) (a). Section 394 empowered the\r\ncourt to approve schemes proposing amalgamation, and oversee the various steps\r\nand procedures that had to be undertaken for that purpose, including the\r\napportionment of and devolution of assets and liabilities, etc.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. Amalgamation, thus, is unlike the winding up of a corporate entity. In the\r\ncase of amalgamation, the outer shell of the corporate entity is undoubtedly\r\ndestroyed; it ceases to exist. Yet, in every other sense of the term, the corporate\r\nventure continues – enfolded within the new or the existing transferee entity. In\r\nother words, the business and the adventure lives on but within a new corporate\r\nresidence, i.e., the transferee company. It is, therefore, essential to look beyond\r\nthe mere concept of destruction of corporate entity which brings to an end or\r\nterminates any assessment proceedings. There are analogies in civil law and\r\nprocedure where upon amalgamation, the cause of action or the complaint does\r\nnot per se cease – depending of course, upon the structure and objective of\r\nenactment. Broadly, the quest of legal systems and courts has been to locate if a\r\nsuccessor or representative exists in relation to the particular cause or action, upon\r\nwhom the assets might have devolved or upon whom the liability in the event it\r\nis adjudicated, would fall.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>33. There is no doubt that MRPL amalgamated with MIPL and ceased to exist\r\nthereafter; this is an established fact and not in contention. The respondent has\r\nrelied upon Spice and Maruti Suzuki (supra) to contend that the notice issued in\r\nthe name of the amalgamating company is void and illegal. The facts of present\r\ncase, however, can be distinguished from the facts in Spice and Maruti Suzuki on\r\nthe following bases.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">41. In the light of the facts, what is overwhelmingly evident- is that the\r\namalgamation was known to the assessee, even at the stage when the search and\r\nseizure operations took place, as well as statements were recorded by the revenue\r\nof the directors and managing director of the group. A return was filed, pursuant\r\nto notice, which suppressed the fact of amalgamation; on the contrary, the return\r\nwas of MRPL. Though that entity ceased to be in existence, in law, yet, appeals\r\nwere filed on its behalf before the CIT, and a cross appeal was filed before ITAT.\r\nEven the affidavit before this court is on behalf of the director of MRPL.\r\nFurthermore, the assessment order painstakingly attributes specific amounts\r\nsurrendered by MRPL, and after considering the special auditor’s report, brings </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">specific amounts to tax, in the search assessment order. That order is no doubt\r\nexpressed to be of MRPL (as the assessee) - but represented by the transferee,\r\nMIPL. All these clearly indicate that the order adopted a particular method of\r\nexpressing the tax liability. The AO, on the other hand, had the option of making\r\na common order, with MIPL as the assessee, but containing separate parts,\r\nrelating to the different transferor companies (Mahagun Developers Ltd.,\r\nMahagun Realtors Pvt. Ltd., Universal Advertising Pvt. Ltd., ADR Home Décor\r\nPvt. Ltd.). The mere choice of the AO in issuing a separate order in respect of\r\nMRPL, in these circumstances, cannot nullify it. Right from the time it was\r\nissued, and at all stages of various proceedings, the parties concerned (i.e., MIPL)\r\ntreated it to be in respect of the transferee company (MIPL) by virtue of the\r\namalgamation order – and Section 394 (2). Furthermore, it would be anybody’s\r\nguess, if any refund were due, as to whether MIPL would then say that it is not\r\nentitled to it, because the refund order would be issued in favour of a non-existing\r\ncompany (MRPL). Having regard to all these reasons, this court is of the opinion\r\nthat in the facts of this case, the conduct of the assessee, commencing from the\r\ndate the search took place, and before all forums, reflects that it consistently held\r\nitself out as the assessee.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>42. Before concluding, this Court notes and holds that whether corporate death\r\nof an entity upon amalgamation per se invalidates an assessment order ordinarily\r\ncannot be determined on a bare application of Section 481 of the Companies Act,\r\n1956 (and its equivalent in the 2013 Act), but would depend on the terms of the\r\namalgamation and the facts of each case.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>43. In view of the foregoing discussion and having regard to the facts of this\r\ncase, this court is of the considered view, that the impugned order of the High\r\nCourt cannot be sustained; it is set aside. Since the appeal of the revenue against\r\nthe order of the CIT was not heard on merits, the matter is restored to the file of\r\nITAT, which shall proceed to hear the parties on the merits of the appeal- as well\r\nas the cross objections, on issues, other than the nullity of the assessment order,\r\non merits. The appeal is allowed, in the above terms, without order on costs.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '17352827a9963bb4982ce59151542f2d.jpeg', '102185940dee15af7253b2e463f55241.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-06', 1, '', '', '2022-04-06 02:48:37', '2022-04-06 15:11:48'),
(1530, 'V77topspSyDs99Xw0hAaHSvNs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'There is no bar for the informant police officer to undertake investigation so long as the investigation is free of bias and prejudice. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Iqbal Ahmed Vs C.B.I SCB.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Revision Petition 538 of 2014 decided on 22 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The accused, convicted and sentenced for the offences under sections 419, 420, 468 and 471 of IPC, and section 12(1)(b) of the  Passports  Act, 1967 is the petitioner here. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16. The offence under Section 12(1)(b)  of the Passports Act gets constituted if a person obtains a passport or travel document by  giving false information or suppresses a material information for obtaining a passport or travel document or without lawful authority alters or attempts to alter the entries  in  a  passport  or travel document. The evidence available on record which the courts below have held to have been proved and which cannot be disturbed in revisional jurisdiction show false information being provided by the petitioner for obtaining passport as  per Ex.P5. In fact what is found is that the petitioner obtained his genuine passport, Ex.P3 after he obtained Ex.P5. In this view, there is evidence for holding that the offence under section 12(1)( b) of the Passports Act was committed.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17. If the case is further examined whether the courts below are justified in convicting and sentencing the petitioner for the offences under sections 419, 420, 468, 471 of IPC, it may be stated that based on the evidence placed by the prosecution, it has been rightly held that all these offences are constituted. Shaikh Hussain is not the real name of the petitioner and that he applied for  passport as per Ex.P5 in the name of Shaikh Hussain affixing his photograph. It is a case of personation. Intention to cheat is also forthcoming. Cheating finds its meaning in section 415 and its essential ingredient is causing inducement dishonestly or fraudulently  for  delivery of any property to any person. Therefore sections 419 and 420 are constituted. The passport as per Ex.P5 was obtained by providing or making false information. Petitioner has used Ex.P5 for visiting many countries and  in this view offences under sections 468 and 471 are also constituted.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>29. Thus it is clear now that omission to put a question to accused under section 313 Cr.P.C, unless it is demonstrated that it has resulted in miscarriage of justice or the interest of the accused is prejudiced substantially, cannot be considered to be a good ground for upsetting  the judgment of conviction. If the omitted question is so material, the appellate court can put the question to the accused or his counsel and seek explanation. This being  the position of law, I do not think that Sri Hashmath Pasha has raised a valid ground.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>30. On this point Sri Hashmath Pasha argued that PW1 lodged FIR after completing panchanama and he himself undertook investigation. Though the investigation was handed over to CBI at a later stage, major part of the investigation was completed by PW1 and that the CBI did nothing but filing charge sheet. That means entire investigation was conducted by PW1 who was also a informant, in this view investigation was vitiated. The counter argument of Prasanna Kumar was that there was no bar that the officer who lodged FIR could not undertake investigation. The bar applies when there is personal interest on the part of the investigating officer being the informant or complainant. The accused must demonstrate bias in investigation or otherwise it cannot be said to be bad. He has placed reliance on the judgment of the Supreme Court in the case of Mukesh Singh vs State (Narcotic Branch of Delhi), [(2020) 10 SCC 120].<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>31. Many a time it so happens, especially in cases where raid is conducted on receipt of a secret or credible information from the police informants, the police officer has to go to spot for averting the offence being committed or to apprehend the persons involved in commission of offence and to seize the objects or things. With the seizure of materials connected with crime, almost entire investigation comes to an end and what may remain is to obtain report from the laboratory or experts. If after seizure, FIR is registered and the very same police officer sends the seized materials to laboratory for chemical examination or to the opinion of experts, is it possible to say that investigation is vitiated.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">32. Nextly, to say that the informant police officer cannot undertake investigation, it is necessary that the personal interest possessed by the investigator or bias in him towards the accused, should be demonstrated. If the investigation is free of bias and prejudice, there is nothing wrong in the same officer continuing the  investigation  after lodging FIR. To illustrate, supposing a theft takes place in the house of the police officer and he makes a report of the same for registration of FIR and if he undertakes investigation of his own case, then  the question of personal interest arises. In that event investigation is vitiated as he cannot investigate his own case</font><span style=\"font-family: Verdana, sans-serif; font-size: 12pt;\">.</span><font face=\"Calibri, sans-serif\"><br></font></b></p><b><span style=\"font-size: medium;\"></span></b><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>33. Sri Hashmath Pasha has not been able to demonstrate as to how the interest of the petitioner  suffered and was prejudiced on account of investigation undertaken by PW1 being the informant. Therefore this ground of argument cannot be accepted.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>36. The alternative argument of Sri Hashmath Pasha was that in case this court would come to conclusion that the petition is not to be allowed, the petitioner may be given the benefit under the provisions of Probation of Offenders Act taking into consideration the age of the petitioner. The trial court has examined why Probation of Offenders Act cannot be applied. I find that reason  tenable. Therefore this benefit cannot be given. In the result, this petition fails and it is dismissed.</b></font></p>', '61c169c7c842211ba70172cdcbef16d9.jpeg', '876444249530dbad0958428a3f0357df.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-06', 1, '', '', '2022-04-06 22:46:19', '2022-04-06 12:21:36'),
(1531, 'Os1BAPTK7UMdal6qiWPq2AQfj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Omission to put question to accused under section 313 Cr.P.C, cannot be a good ground to upset conviction unless it has resulted in miscarriage of justice or prejudiced the interest of the accused substantially. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Iqbal Ahmed Vs C.B.I SCB.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Criminal Revision Petition 538 of 2014 decided on 22 March 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Sreenivas Harish Kumar.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">The accused, convicted and sentenced for the offences under sections 419, 420, 468 and 471 of IPC, and section 12(1)(b) of the  Passports  Act, 1967 is the petitioner here. </span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">16. The offence under Section 12(1)(b)  of the Passports Act gets constituted if a person obtains a passport or travel document by  giving false information or suppresses a material information for obtaining a passport or travel document or without lawful authority alters or attempts to alter the entries  in  a  passport  or travel document. The evidence available on record which the courts below have held to have been proved and which cannot be disturbed in revisional jurisdiction show false information being provided by the petitioner for obtaining passport as  per Ex.P5. In fact what is found is that the petitioner obtained his genuine passport, Ex.P3 after he obtained Ex.P5. In this view, there is evidence for holding that the offence under section 12(1)( b) of the Passports Act was committed.<br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">17. If the case is further examined whether the courts below are justified in convicting and sentencing the petitioner for the offences under sections 419, 420, 468, 471 of IPC, it may be stated that based on the evidence placed by the prosecution, it has been rightly held that all these offences are constituted. Shaikh Hussain is not the real name of the petitioner and that he applied for  passport as per Ex.P5 in the name of Shaikh Hussain affixing his photograph. It is a case of personation. Intention to cheat is also forthcoming. Cheating finds its meaning in section 415 and its essential ingredient is causing inducement dishonestly or fraudulently  for  delivery of any property to any person. Therefore sections 419 and 420 are constituted. The passport as per Ex.P5 was obtained by providing or making false information. Petitioner has used Ex.P5 for visiting many countries and  in this view offences under sections 468 and 471 are also constituted.<br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">29. Thus it is clear now that omission to put a question to accused under section 313 Cr.P.C, unless it is demonstrated that it has resulted in miscarriage of justice or the interest of the accused is prejudiced substantially, cannot be considered to be a good ground for upsetting  the judgment of conviction. If the omitted question is so material, the appellate court can put the question to the accused or his counsel and seek explanation. This being  the position of law, I do not think that Sri Hashmath Pasha has raised a valid ground.<br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">30. On this point Sri Hashmath Pasha argued that PW1 lodged FIR after completing panchanama and he himself undertook investigation. Though the investigation was handed over to CBI at a later stage, major part of the investigation was completed by PW1 and that the CBI did nothing but filing charge sheet. That means entire investigation was conducted by PW1 who was also a informant, in this view investigation was vitiated. The counter argument of Prasanna Kumar was that there was no bar that the officer who lodged FIR could not undertake investigation. The bar applies when there is personal interest on the part of the investigating officer being the informant or complainant. The accused must demonstrate bias in investigation or otherwise it cannot be said to be bad. He has placed reliance on the judgment of the Supreme Court in the case of Mukesh Singh vs State (Narcotic Branch of Delhi), [(2020) 10 SCC 120].<br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">31. Many a time it so happens, especially in cases where raid is conducted on receipt of a secret or credible information from the police informants, the police officer has to go to spot for averting the offence being committed or to apprehend the persons involved in commission of offence and to seize the objects or things. With the seizure of materials connected with crime, almost entire investigation comes to an end and what may remain is to obtain report from the laboratory or experts. If after seizure, FIR is registered and the very same police officer sends the seized materials to laboratory for chemical examination or to the opinion of experts, is it possible to say that investigation is vitiated.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">32. Nextly, to say that the informant police officer cannot undertake investigation, it is necessary that the personal interest possessed by the investigator or bias in him towards the accused, should be demonstrated. If the investigation is free of bias and prejudice, there is nothing wrong in the same officer continuing the  investigation  after lodging FIR. To illustrate, supposing a theft takes place in the house of the police officer and he makes a report of the same for registration of FIR and if he undertakes investigation of his own case, then  the question of personal interest arises. In that event investigation is vitiated as he cannot investigate his own case</font><span style=\"font-family: Verdana, sans-serif; font-size: 12pt;\">.</span><font face=\"Calibri, sans-serif\"><br></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">33. Sri Hashmath Pasha has not been able to demonstrate as to how the interest of the petitioner  suffered and was prejudiced on account of investigation undertaken by PW1 being the informant. Therefore this ground of argument cannot be accepted.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p><span style=\"font-weight: bolder;\"><span style=\"font-size: medium;\"></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">36. The alternative argument of Sri Hashmath Pasha was that in case this court would come to conclusion that the petition is not to be allowed, the petitioner may be given the benefit under the provisions of Probation of Offenders Act taking into consideration the age of the petitioner. The trial court has examined why Probation of Offenders Act cannot be applied. I find that reason  tenable. Therefore this benefit cannot be given. In the result, this petition fails and it is dismissed.</span></font></p>', '63de5b5c8a01ed4e0fbcf94374b49a30.jpg', '71a2210b86ec0fe8a941ef93ae95f944.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-06', 1, '', '', '2022-04-06 23:59:14', '2022-04-07 00:02:14');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1532, 'wS57xbC8GeHnu6upiekBFtJl1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Affiliation of Colleges. Exercise of power must not only satisfy integrity and probity but also the timeframe within which power is exercised. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shanti Dhama College of Physiotherapy Vs The Principal Secretary Government of Karnataka and others.   <o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 3503 of 2022 decided on 28 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P. Krishna Bhat.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The grievance of the petitioner is that,  even though the petitioner is running a Bachelor of Physiotherapy course with the permitted intake of 20 students and has been making repeated applications for increasing intake to 40 students (that is increase of students strength by 20), neither the University nor the Government has been considering the same in terms of Section 45 of The Rajiv Gandhi University of Health Sciences Act, 1994 (for short hereinafter referred to as ‘the Act’).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.  An Institution desirous of starting any course shall make an application to the University in the prescribed format seeking affiliation. On receipt of such application, the officers of the University are required to place the same before the Syndicate with the application and annexures and once such application is placed before the Syndicate, the Syndicate shall appoint a local enquiry committee for the purpose of holding local inspection and submitting its report. The local enquiry committee is required to visit the institution before submitting report to the Syndicate. The report of the L.I.C. should, among others, deal with the aspects mentioned in sub-section (2)(a) to (i) of Section 45 of the Act. After such  report is submitted, it is open to the Syndicate to make such further enquiry as may appear it to be necessary for satisfying itself on the merits of the application seeking affiliation. Thereafter, Syndicate is required to place the entire materials before the Academic Council and in consultation with the Academic Council take a decision on the merits of the applications by passing appropriate resolution. After such resolution is passed by the Syndicate in consultation with the Academic Council in terms of sub-Section (4)(c) of Section 45, the University is required to forward the same to the Government with the entire records.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The procedure for examination of such resolution of the Syndicate of the University with regard to the grant of affiliation by the State Government is contained in sub Section 5 of Section 45 of the Act. As per the same, during the course of consideration of the application of the institution, it is open to the Government to accept the resolution of the Syndicate passed in consultation with the Academic Council as forwarded to it or it can hold  such enquiry as may appear it to be necessary and thereafter, it is required to make recommendation for the grant of application or part thereof or refusal of affiliation. On receipt of such recommendation from the Government, University shall issue orders accordingly.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Needless to say, it is incumbent upon the Government to recommend to grant or refusal of affiliation for reasons recorded in writing1. It is also necessary to remind the authorities concerned, in view of the large number of litigations arising in this field, that the authorities involved in the process of deciding whether affiliation is required to be granted or not should do so within a reasonable time. It is trite that authorities vested with public powers are required to exercise it in a reasonable manner and it is therefore implicit that such decisions are taken within a reasonable time. It is high time that the authorities concerned realise that they are accountable for the manner of exercise of such powers not only with reference to the integrity / probity of the process but also to the timeframe within which power is exercised. The applications seeking affiliation / recognition etc are made for specified academic year and once such applications are made, the process of consideration by various authorities should take place with clock work precision and final order granting or refusal of affiliation should be issued well before the commencement of that academic year. The filing of application seeking affiliation entail payment of considerably high fees. If decisions on such applications are not taken within a timeframe, they become irrelevant or infructuous due to efflux of time and thereby applicants suffer irreparable hardship. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. Insofar as the present case is concerned, no relief in the manner sought for by the petitioner can be granted as the Academic year has ended long ago.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 8. Realizing this difficulty, learned counsel for the petitioner submits that he would advice the petitioner to make a fresh application in accordance with law within a period of one week from today seeking affiliation for enhancing intake of another 20 students for the Bachelor of Physiotherapy Training Course. If such an application is made, the University and the State Government shall conclude the entire proceedings on such applications and take a decision and communicate to the present petitioner within four weeks from the date of such application, without fail.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 9. Needless to say that both the University as well as the State Government shall record proper reasons within the frame work of Section 45 of the Act for either accepting the application seeking affiliation for increasing intake of 20 students or rejecting the same. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. The writ petition is disposed of accordingly. Send a copy of this order to the Registrar of respondent No.2 and Principal Secretary of the Government of Karnataka, Department of Health and Family Welfare (Medical Education), forthwith, for compliance.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '15c721c608a2b6ae87516a83354fbc4f.jpeg', '1159881c06f6c4193573b13d6e1477af.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-07', 1, '', '', '2022-04-07 18:04:25', '2022-04-07 11:34:33'),
(1533, '9Al1g30G4pky8ZBm3sAq1YFyl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Vajpayee led NDA–Government was toppled for want of one vote.\'\' Election set aside by a very small margin is not a ground to set aside judgement in election petition. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Prabhamani Mahadevappa Vs Hemalatha Santhosh and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 23811 of 2021 decided on 1 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The Election petitioner in the Court/tribunal below who happens to be the first respondent herein is represented by her counsel and the learned AGA on request appears for the fourth respondent. Both they resist the writ petition making submission in justification of the impugned order and the reasons on which it has been constructed and thereby seek dismissal of the writ petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Having heard the learned counsel for the parties and having perused the petition papers,  this  Court declines indulgence in the matter for the following reasons:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>a) The order in challenge relates to jettisoning  the election of petitioner herein and installation of the  first respondent in her stead as the duly elected  candidate of the Grama Panchayat.  This order  is made by the statutory Tribunal namely, the Additional Sr. Civil Judge, Hassan in exercise of adjudicatory power vested u/S  20 of the Karnataka Gram Swaraj  and Panchayat  Raj Act, 1993. The jurisdiction of the Tribunal is not in dispute although the manner of its exercise is. The case does not involve infraction of any of the Fundamental Rights. It relates to  only  statutory rights namely, right  to continue in office till the expiry of elected tenure. Matters relating to election, be it to the grass root electoral bodies such as Grama Panchayats or to the Parliament, do fall within the realm of law of elections, as legislated</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In view of the above, the indulgence of this Court is only under the limited supervisory jurisdiction constitutionally vested under Article 227, Article 226 having been insignificantly quoted in the petition. Therefore, a  concrete case of “error apparent on the face of the  record” has to be made out by the petitioner who seeks indulgence.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>b) The jugular vein of the election petition was the validity of four ballot papers namely, Ex. P.11 to  P.14, which were excluded from the Court in favour of the first respondent – Election Petitioner on the ground that they belonged to a different constituency.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>c) Psychologically, symbols have deep rooted emotive content being descriptively used since antiquity and before. It is relevant to mention what Felix Frankfurter, J. of U.S. Supreme quoting Justice Oliver Wendell Holmes in MINERSVILLE SCHOOL DISTRICT v. GOBITIS, 310 US 586 (1940) had said ‘we live by symbols’</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>d) In this backdrop, the election symbols of the candidates or their political parties through which they  are put in the fray assume a lot of significance. These symbols are normatively by the jurisdictional authorities constituted under law. The election symbols play a vital role inasmuch as, ordinarily, the electors identify their candidates on the basis of symbols with which they contest in the elections, and vote. It is more so in the case of election to ‘grass-root’ level local bodies like the one in this case.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>e) When the margin of votes  for  electoral  victory is very small, as is the case at hands, the scrutiny of the ballot papers assumes greater significance, may   be a realistic view. In the election in question, though the ballot papers belonged to other constituency, there is irrefutable evidence on record that they were utilized for the election in this constituency; they had the same electoral symbol; they were taken & used for the constituency in question after scrutiny by the  jurisdictional authorities; the voters acted upon the same accordingly. The electors made mark upon  the  same. It is nobody’s case that the mark found on these ballot papers were fake, forged or otherwise illegal. Some insignificant lapses do happen in election process, more particularly in rural areas, cannot be disputed. Added, there is admission of the petitioner that these ballot papers did not come from the ‘farthest land’, as to be called ‘alien’ to the election in question.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>f) The last vehement submission of learned counsel appearing for the Returned Candidate  that by a very small margin the election of his client has been set aside and therefore, an eminent case arises for indulgence of the Writ Court, for restoring his position, is bit difficult to countenance. Precedentially, the Vajpayee led NDA–Government was toppled for  want of one vote, failing to secure a confidence vote on 17th April 1999.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In the above circumstances, this writ petition being devoid of merits, is liable to be rejected and accordingly it is, costs having been made easy.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'eb532543efab20969db81dbda63a2776.jpeg', 'e9d62ba45c53d420120ea090ba9ce84b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-07', 1, '', '', '2022-04-07 18:20:08', '2022-04-07 13:58:11'),
(1534, 'nK6zevk5aoVRmiStIKUkL3MOq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Merely because charge sheet did not accompany FSL report, accused cannot contend that he is entitled for bail especially when Police report with necessary details is filed within time. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sayyad Mohammad Nasim Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 5934 of 2022 decided on 29 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The petitioner is before this Court calling in question proceedings in Crime No.30 of 2021 registered for offences punishable under Sections 25 and 3 of the Indian Arms Act, 1959 and Sections 8(c), 20(B)(ii)(c) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (‘the Act’ for short).</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Brief facts leading to the filing of the present petition, as borne out from the pleadings,  are  as follows:- On 26-05-2021 on the basis of a report submitted by the 2nd respondent/Police  alleging that on 25-05-2021 when they were on rounds, they received credible information that one accused involved in a dacoity case is on the run towards Moodabidri in a car and they followed the said car and found the car being driven by Mohamed Farooq. The petitioner was seated  in the car and another Eicher Truck  was  moving towards Moodabidri. Both the vehicles were intercepted and the dickey of Skoda car was  searched  which resulted in unearthing of 60.60 Kgs. of Ganja. The Eicher Truck which was also seized was searched and such  search resulted in recovery of  157 Kgs.  of  Ganja.  It was seized and the accused were arrested and produced before the Police for further action. The Special Court under the Act on 26-05-2021 remanded the petitioner to judicial custody. On 20-11-2021 the Police after investigation filed a final  report/charge sheet before the Court. The petitioner, after filing of the charge sheet before the Court, has now knocked on the doors of this Court in the subject petition, for  quashment of entire proceedings in Crime No.30 of  2021 and seeks an interim prayer for release by grant of interim bail.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. FSL report sometimes depends upon the nature of contraband substance. In the case at hand the contraband substance is Ganja. Ganja is a  substance that can be easily identifiable by its smell, texture and structure. The fact that ganja, unlike other synthetic drugs, is recognizable by the  substance  or  identifiable  by  its  smell, texture and structure. Therefore, merely because the charge sheet did not accompany FSL report, the right of the  petitioner cannot  swing back  to contend that he is entitled to be enlarged on bail. As  long as the police report containing details as necessary under Section 173(2) is filed within the stipulated period, the accused will not  get  a  right  to  contend  that he is entitled to default bail on the ground that the final report filed is in violation of Section173(5) of the Cr.P.C.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. Section 173(8) of the Cr.P.C. directs further investigation in the matter. If the Police are entitled to further  investigation,  further  documents  can  also be filed before the Court. Therefore, the FSL report is open to be placed before the Court. On this ground, the petitioner applied for default bail before the Sessions Judge. The Sessions Judge refused to accede to the submissions made by the petitioner holding that the principles laid down in the judgments of various High Courts would not entitle the petitioner to a default bail merely because FSL report is not part of the charge sheet. I find no error or infirmity in the order passed by the learned Sessions Judge declining to grant default bail.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. The law laid down by the Division Bench of Bombay High Court in the circumstance is apposite, as the Apex Court in the case of BAL MUKUND or NOOR AGA does not consider the fact whether filing of the charge sheet without FSL report would vitiate the proceedings.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. In the light of the preceding analysis, it is the considered view of this Court that the petitioner does  not get a right to demand for enlargement on the ground of default bail under Section 167(2) of the  Cr.P.C. merely because the charge sheet/final report filed  by  the Police after investigation is without FSL report, as non-filing of the FSL report by itself would not make the charge sheet contrary to Section 173(2) of the Cr.P.C. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. In the result, the Writ Petition lacks merit and is dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e8120e2d2f3e669b52ad6d4f671c3b0c.jpeg', '27f80c44a82f118b96fe8f8a2becd101.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-07', 1, '', '', '2022-04-07 18:53:37', '2022-04-07 12:36:52'),
(1535, 'hqKeC3CbZG7FWOhmg4Kq9oO3C', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Son-in-law cannot claim right over property of his father-in-law. Claim of being adopted as member of in-laws family is shameful. Kerala High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Davis Raphel Vs Hendry Thomas.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>RSA 418 of 2019 decided on 6 September 2021.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N. Anil Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This Regular Second Appeal has been filed by the\r\ndefendant in the civil suit challenging the judgment and\r\ndecree dated 22.2.2019 in A.S.No.58/2016 of the Sub Court,\r\nPayyannur (hereinafter referred to as \'the first appellate\r\ncourt\') by which judgment, the first appeal of the defendant\r\nwas dismissed by the first appellate court confirming the\r\njudgment and decree dated 30.09.2016 in O.S.No.33/2012 of\r\nthe Munsiff\'s Court, Taliparamba (hereinafter referred to as\r\n\'the trial court\').\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. For brevity, the parties shall be referred to as\r\nreferred in the original suit. Brief facts of the case giving rise to\r\nthis appeal are as follows:-\r\nThe plaintiff Sri.Hendry Thomas, aged 69 years,\r\nwho is the respondent in this appeal, filed the original suit\r\nbefore the trial court claiming for permanent injunction\r\ninterdicting the defendant from trespassing into the plaint <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">schedule property or interfering with the plaintiff\'s peaceful\r\npossession and enjoyment of the plaint schedule property and\r\nthe house therein or committing any waste therein. The suit\r\nproperty measuring an area of 5 cents of land comprised in\r\nRe-Sy.No.21/5 of Taliparamba amsom, Thrichambaram\r\ndesom, belongs to the plaintiff by virtue of a gift deed\r\nNo.4034/1981 by Rev.Fr.James Nasrath for and on behalf of\r\nSt.Paul\'s Church, Thrichambaram.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3. The plaintiff claimed to have obtained the\r\nproperty by virtue of the gift deed stated above. According to\r\nhim, he has constructed a concrete house spending his own\r\nfunds and he is residing therein with his family.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. The defendant is none other than the son-in-law\r\nof the plaintiff and he has no manner of right over the\r\nproperty. The main complaint of the plaintiff is that the\r\ndefendant is disturbing the plaintiff\'s peaceful possession and\r\nenjoyment over the suit property. Hence the suit was filed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The defendant filed a written statement refuting\r\nthe claim of the plaintiff. The defendant admitted that the\r\nplaintiff obtained the property by virtue of the gift deed cited\r\nsupra. According to him, the title of the suit property itself is\r\nquestionable as the alleged gift deed was executed by the\r\nchurch authorities for the family. He would contend that he\r\nhas married the only daughter of the plaintiff and has been\r\npractically adopted as a member of the family subsequent to\r\nthe marriage. Hence, he maintained that he has a right to\r\nreside in the house, as of right. He further contended that he\r\nhas constructed a building in the property expending his own\r\nmoney and he has no other place of abode. He further\r\ncontended that the plaintiff\'s wife Molly filed M.C.No.14/2012\r\nagainst the defendant for a protection order, which was settled\r\nbetween the parties, agreeing to reside together in the plaint\r\nschedule building<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The trial court held that the plaintiff is the owner\r\nin possession of the plaint schedule property and the\r\ndefendant, who is the son-in-law of the plaintiff, has no\r\nmanner of right in interfering with the possession of the plaint\r\nschedule building. The trial court further held that the awards\r\npassed in M.C.Nos.14/2012 and 19/2012 do not create any\r\ninterest in the property or the house therein, which absolutely\r\nbelong to the plaintiff. Accordingly, the suit was decreed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The defendant filed an appeal before the first\r\nappellate court. The first appellate court also came to the\r\nconclusion that the defendant has no manner of right to disturb the\r\npeaceful possession of the plaintiff over the plaint schedule\r\nbuilding. The appeal was dismissed, accordingly. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Learned counsel for the appellant submits that\r\nboth the courts below erred in decreeing the suit for\r\nprohibitory injunction from trespassing into the plaint\r\nschedule property in which the defendant also resides. The\r\nlearned counsel further submits that the suit for injunction\r\nsimpliciter is not maintainable as the defendant has been\r\nresiding in the suit property on the date of suit. It is further\r\ncontended that the defendant has a right to reside in the\r\nbuilding as a member of the family and the plaintiff has no\r\nmanner of right to obstruct the same.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Sri.V.T.Madhavan Unni, the learned counsel\r\nappearing for the respondent refuting the submission of the\r\nlearned counsel for the appellant contends that the plaintiff\r\nhas successfully proved his possession over the building,\r\nwhich is also practically admitted by the defendant in his\r\nwritten statement. It is further contended that the defendant <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is not a co-owner of the property and as such, he has no right\r\nto continue his residence in the plaint schedule property to the\r\ndetriment of the true owner. Thus, it is submitted that the suit\r\nwas decreed rightly by the two courts below.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. This second appeal was instituted on 9.4.2019.\r\nWhen the case came up for admission on 10.4.2019, this Court\r\nissued notice on admission to the respondent by speed post.\r\nAn interim stay was also granted for two months. Thereafter,\r\nthe stay was not extended. The sole respondent entered\r\nappearance. On 6.8.2019, this Court passed an order referring\r\nthe parties to mediation to be conducted by the Mediation\r\nCentre attached to this Court, having taken into consideration\r\nthe fact that the parties are close relatives. The parties\r\nappeared before the Mediator. The case was mediated on\r\n22.8.2019, 3.10.2019, 10.10.2019,17.10.2019,30.1.2020 and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13.2.2020. However, the matter was not settled. The report of\r\nthe Mediator in the matter along with the enclosures were\r\nfurnished before this Court.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. Does a son-in-law have any legal right in his\r\nfather-in-law\'s property and building? Admittedly, the plaint\r\nschedule property was gifted in favour of the plaintiff by the\r\nchurch authorities by virtue of Ext.A1 Gift Deed. The plaintiff\r\nis paying tax to the property by virtue of Ext.A2. He is also\r\npaying tax to the building. Exts.A3 to A9 would show that he\r\nhas been residing in the plaint schedule building. It is difficult\r\nto hold that the defendant is a member of the family. The\r\nfamily of the plaintiff consists of his wife and daughter. The\r\nplaintiff has not filed any suit against his own daughter.\r\nHowever, he does not want the defendant to stay along with\r\nhim. The plaintiff \'s wife filed M.C.No.14/2012 against the\r\ndefendant for a protection order and at the instigation of the\r\ndefendant, the daughter of the plaintiff filed another <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">M.C.No.19/2012 against the plaintiff. Later, by Exts.B2 and\r\nB4 awards, the cases were settled by way of compromise in\r\norder to maintain harmony among the members of the family.\r\nThe settlement in the said cases would not enure any benefit to\r\nthe defendant.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. Since the behaviour of the defendant became\r\nintolerable, the plaintiff filed a suit seeking a permanent\r\nprohibitory injunction restraining the defendant from entering into\r\nthe plaint schedule property and building. This was resisted by\r\nthe defendant pointing out the fact that he had constructed the\r\nbuilding after availing a loan. He had also produced certain\r\nreceipts allegedly issued in his favour by Taliparamba Service\r\nCo-operative Bank to show that housing loan was cleared by\r\nhim. Exts.B5(a) to B5(h) receipts would show that the\r\nThaliparamba Service Co-operative Bank issued receipts in the\r\nname of the plaintiff. Merely because the defendant remitted\r\nthe amount, he could not claim any independent right over the\r\nbuilding to the detriment of the true owner.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. In the present case, the possession of the\r\nplaintiff was upheld by the two courts below concurrently.\r\nThe defendant cannot even make a plea to be in possession of\r\nthe suit property, as of right. It is a settled principle of law\r\nthat even a trespasser, who is in established possession of the\r\nproperty, could obtain an injunction. However, the matter\r\nwould be different if the plaintiff himself is the true owner of\r\nthe property. The defendant is the son-in-law of the plaintiff.\r\nIt is rather shameful for him to plead that he had been\r\nadopted as a member of the family, subsequent to the\r\nmarriage with the plaintiff\'s daughter.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. In Nair Service Society Ltd. v.\r\nK.C.Alexander and others [AIR 1968 SC 1165], where a\r\nThree Judge Bench of the Supreme Court has reiterated the\r\nprinciple that possession is good against all but the true\r\nowner. In view of the dictum laid down in the aforesaid\r\ndecision, a person in possession of the land in the assumed <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">character of owner and exercising peaceably the ordinary\r\nrights of ownership has a perfectly good title against all the\r\nworld but the rightful owner. The rightful owner filed a suit\r\nfor injunction restraining him from entering into the property.\r\nThe residence of the defendant, if any, in the plaint schedule\r\nbuilding is only permissive in nature. The defendant cannot\r\ncontend that he is in legal possession of the suit property or\r\nthe building. As noted above, both the courts below have\r\ngiven cogent reasons for holding that the suit filed by the\r\nplaintiff for injunction was maintainable without seeking\r\nfurther relief.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18. The submission of the learned counsel for the\r\nappellant that the evidence adduced by the defendant had not\r\nbeen looked into is not factually correct. The trial court as well\r\nas the first appellate court have analysed not only the oral\r\nevidence but the exhibits, which had been filed on behalf of the\r\ndefendant, which are clearly evident from paragraphs 16 and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">22 to 24 of the first appellate court judgment. This Court is of\r\nthe view that it is not necessary to decide the validity of Ext.A1\r\nGift Deed executed by the church in favour of the plaintiff.\r\nThe suit for injunction filed by the plaintiff deserves to be\r\nconsidered on the strength of established possession of the\r\nplaintiff over the suit property and the building therein.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">19. Learned counsel for the appellant contends that\r\nthe plaintiff is a man of bad character and he is not on good\r\nterms with the members of his family. Section 52 of the\r\nIndian Evidence Act provides that in civil cases, a fact\r\npertaining to the character of an individual is not relevant. It\r\nlays down the principle that the character of a party as a piece\r\nof evidence cannot be used to manifest that conduct attributed\r\nto him is not probable or improbable. The reasons behind the\r\nirrelevance are that a civil case has to be decided based on the\r\nmatter in issue between the parties and not based on the\r\npresent or past character of the parties.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. On behalf of the respondent, it has strenuously\r\nbeen contended with considerable force that there was no\r\nquestion of law involved in this appeal much less any\r\nsubstantial question of law to warrant interference in second\r\nappeal. Concurrent findings are sought to be set aside in\r\nsecond appeal. To be a question of law involved in the case,\r\nthere must be first, a foundation for it laid in the pleadings,\r\nand the question should emerge from the sustainable findings\r\nof fact, arrived at by Courts of facts, and it must be necessary\r\nto decide that question of law for a just and proper decision of\r\nthe case. A concurrent finding of fact that the plaintiff has\r\nbeen in possession of the suit property on the date of suit is\r\nnot open to challenge in the second appeal even if appreciation\r\nof evidence is wrong and the finding of fact is incorrect.\r\nHence, this Second Appeal is liable to be dismissed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>For the above said reasons, this Court does not\r\nfind any error in the judgment of the first appellate court confirming the judgment and decree of the trial court by\r\ndecreeing the suit for injunction simpliciter. Thus, this RSA is\r\ndismissed with costs. Pending applications, if any, stand\r\nclosed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c8f4d29b631e11951c1b81c4d1729327.jpeg', '5d8560443c2da03461c55462926516d7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-08', 1, '', '', '2022-04-07 20:19:09', '2022-04-08 16:18:26'),
(4559, 'sVCMyPfROJTC8M6JYgp3tiYa0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mere amendment to plaint adding properties describing them as joint family properties will not cause hardship since the nature of the properties need to be substantiated during the trial. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Durga Prasad Shetty Vs Shashikala and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 22744 of 2021 decided on 11 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sachin Shankar Magadum</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>The captioned writ petition is filed by the sole defendant feeling aggrieved by the order of the learned Judge passed on I.A.No.3 filed under Order VI Rule 17 read with Section 151 of CPC, wherein the learned Judge has allowed the amendment application and has permitted the respondent-plaintiff to incorporate additional properties and pleadings in that regard.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2. The respondents-plaintiffs have instituted a suit for partition and separate possession in O.S.No.57/2020. The plaintiffs have specifically alleged against the present petitioner-defendant that he is guilty of not furnishing the accounts of income and expenditure and has not distributed 3/4th of the profits i.e. legally due to the plaintiffs. The plaintiffs have further specifically pleaded at Para (4) of the plaint&nbsp; that&nbsp; the&nbsp; present&nbsp; petitioner&nbsp; having&nbsp; failed&nbsp; to provide accounts has dishonestly utilized the income derived from the properties for himself. The petitioner-defendant on receipt of summons has tendered appearance and contested the suit by filing the written statement. Before commencement of trial, the plaintiffs have filed an amendment application seeking leave to add additional properties. The said application is strongly resisted by the petitioner herein by contending that amendment application is tainted with malafides. The petitioner contended that the respondents-plaintiffs are well aware that petitioner purchased this property in view of the sale of the joint family ancestral property wherein the petitioner was also equally paid a sum of Rs.75,000/-. On this set of defence, sought for rejection of the application. The learned Judge has allowed the application. It is this order, which is under challenge.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>6. The respondents-plaintiffs have instituted a suit for partition and separate possession. The respondent has specifically averred that there is an arrangement in the family where the present petitioner-defendant is entrusted to look after the suit schedule property. As per the arrangement, the petitioner is under bounden duty to render accounts of income and expenditure every year and is required to distribute the profits derived from the suit schedule properties. There&nbsp; are&nbsp; specific&nbsp; allegations&nbsp; that&nbsp; the petitioner-defendant has utilized the income derived from the joint family ancestral property and therefore, the present suit.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>7. Insofar as the proposed amendment is concerned, by way of amendment the respondents-plaintiffs claim that the properties which are now sought to be inserted by way of amendment are also joint family ancestral properties while the petitioner claims that these properties are his self acquired properties and therefore, not available for partition. These rival submissions made by the plaintiffs and defendant are to be tested only by way of a full fledged trial. Though plaintiffs claim that the properties now sought to be included are also joint family ancestral properties, the said statement has to be corroborated and substantiated during trial. Initial burden is on the plaintiffs. Once the said initial burden is discharged, the onus would shift on the petitioner-defendant. Therefore, it is equally incumbent on the part of the defendant to lead rebuttal evidence to discharge his burden and establish that the properties covered under the amendment application are his self acquired properties. Without having recourse to this adjudication process, neither these properties can be held to be ancestral properties nor self acquired properties. Therefore, the amendment of plaint is absolutely necessary. The learned Judge, though has not elaborately discussed, but has rightly allowed the application thereby relegating both the parties to trial. Merely because the proposed amendment may cause some inconvenience to the petitioner-defendant, on an assumption that it is his self acquired properties cannot be a ground to reject the amendment application. The judgment cited by the learned counsel for the petitioner is not applicable to the present case on hand.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\" style=\"\"><b>The writ petition is devoid of merits. Accordingly, stands rejected</b></font></span></p>', '40afbf61440eaa814517e830cf978ff0.JPG', '1800e2d7988ef7885c0457aa1d606ebf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2024-05-31', 1, '', '', '2024-05-31 14:15:54', '2024-05-31 10:31:07');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(4589, 'ug6DaHukxO49jKzEIVFXPIuuq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Maintenance and Welfare of Parents and Senior Citizens Act. Assistant Commissioner has no jurisdiction to annul gift deed if there are no recitals in the gift deed to maintain the donor. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vivek Jain Vs The Deputy Commissioner and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 14704 of 2021 decided on 4 June 2024.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court calling in question the order\r\ndated 07-07-2021 passed by the 2nd respondent/Assistant\r\nCommissioner under the Maintenance and Welfare of Parents and\r\nSenior Citizens Act, 2007 (‘the Act’ for short) cancelling the Gift\r\nDeed dated 20-06-2019 and subsequent sale deed dated\r\n19-12-2019.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts, in brief, germane are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The 3rd respondent is the father of respondents 4 and 5. The\r\n3\r\nrd respondent owned certain property; initially executes a gift deed <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in favour of his wife in the year 2000. The wife of the 3rd\r\nrespondent who was the donee dies in the year 2015. After the\r\ndeath of his wife, the 3rd respondent who was the donor, gifts the\r\nproperty again to the 4th respondent, his son by execution of a gift\r\ndeed dated 20-06-2019. After the said gift deed, the name of the\r\n4\r\nth respondent is entered in all revenue records depicting him to be\r\nthe owner of the said property. On the strength of him becoming\r\nthe absolute owner of the property, the 4th respondent sells the\r\nproperty in favour of the present petitioner on 19-12-2019 on\r\ncertain consideration. Two years after the said sale, the 3rd\r\nrespondent, earlier donor knocks at the doors of the Assistant\r\nCommissioner invoking Section 23 of the Act. The Assistant\r\nCommissioner, in terms of the impugned order, sets aside the Gift\r\nDeed, so executed on 20-06-2019 and the sale deed executed in\r\nfavour of the present petitioner by the son on 19-12-2019 by\r\nwhich, the property that was purchased by the present petitioner is\r\ntaken off. It is therefore, the petitioner is before this Court in the\r\nsubject petition.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">7. I have given my anxious consideration to the submissions\r\nmade by the learned senior counsel and have perused the material </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">on record. In furtherance whereof, the issue that falls for\r\nconsideration is:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">‘Whether the Assistant Commissioner could have\r\nentertained the petition under Section 23 of the Act and set\r\naside the gift deed dated 20-06-2019 and the subsequent\r\nsale deed dated 19-12-2019?’</span><span style=\"font-size: 12pt;\"> </span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. The Apex Court in the case of SUDESH CHHIKARA v.\r\nRAMTI DEVI  has held as follows: <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span lang=\"EN-US\">\"</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11....</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“23. Transfer of property to be void in certain\r\ncircumstances.— (1) Where any senior citizen who, after\r\nthe commencement of this Act, has transferred by way of\r\ngift or otherwise, his property, subject to the condition\r\nthat the transferee shall provide the basic amenities and\r\nbasic physical needs to the transferor and such\r\ntransferee refuses or fails to provide such amenities and\r\nphysical needs, the said transfer of property shall be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">deemed to have been made by fraud or coercion or under\r\nundue influence and shall at the option of the transferor\r\nbe declared void by the Tribunal.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>13. When a senior citizen parts with his or her\r\nproperty by executing a gift or a release or otherwise in\r\nfavour of his or her near and dear ones, a condition of\r\nlooking after the senior citizen is not necessarily attached to\r\nit. On the contrary, very often, such transfers are made out\r\nof love and affection without any expectation in return.\r\nTherefore, when it is alleged that the conditions mentioned\r\nin sub-section (1) of Section 23 are attached to a transfer, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">existence of such conditions must be established before the\r\nTribunal.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">14. Careful perusal of the petition under Section 23\r\nfiled by respondent no. 1 shows that it is not even pleaded\r\nthat the release deed was executed subject to a condition\r\nthat the transferees (the daughters of respondent no. 1)\r\nwould provide the basic amenities and basic physical needs\r\nto respondent no. 1. Even in the impugned order dated\r\n22nd May 2018 passed by the Maintenance Tribunal, no such\r\nfinding has been recorded. It seems that oral evidence was\r\nnot adduced by the parties. As can be seen from the\r\nimpugned judgment of the Tribunal, immediately after a\r\nreply was filed by the appellant that the petition was fixed\r\nfor arguments. Effecting transfer subject to a condition of\r\nproviding the basic amenities and basic physical needs to\r\nthe transferor - senior citizen is sine qua non for\r\napplicability of sub-section (1) of Section 23. In the present\r\ncase, as stated earlier, it is not even pleaded by respondent\r\nno. 1 that the release deed was executed subject to such a\r\ncondition.”</span><span style=\"font-size: 12pt;\"> </span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Following the said judgment, a Division Bench of this Court in the\r\ncase of NANJAPPA v. STATE OF KARNATAKA has held as\r\nfollows: <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>20. Though a specific contention is urged by the\r\nlearned Senior Counsel for the appellant that in view of\r\nthe scope and object of the Senior Citizens Act, it is\r\ndeemed that the transferee shall provide the basic\r\namenities and basic physical needs to the transferor and\r\nsuch transferee refuses or fails to provide such\r\namenities and physical needs, the said transfer of\r\nproperty made by him would be null and void, it is an\r\nundisputed fact that when a senior citizen parts with his\r\nor her property by executing a gift or a release or\r\notherwise in favour of his or her near and dear ones, a\r\ncondition of looking after the senior citizen is not\r\nnecessarily attached to it. On the contrary, very often,\r\nsuch transfers are made out of love and affection\r\nwithout any expectation in return. Therefore, when it is\r\nalleged that the conditions mentioned in Sub-section (1)\r\nof Section 23 of the Senior Citizens Act are attached to a\r\ntransfer, existence of such conditions must be\r\nestablished before the Tribunal.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>21. In the present case, on careful perusal of the\r\ndocument executed by the appellant in favour of the 3rd\r\nrespondent, who happens to be the brother of the\r\nappellant, it does not contain any stipulation that the\r\n3rd respondent is under the obligation to maintain the\r\npresent appellant. In the absence of the same and in\r\nview of the provisions of Sub-sections (1) and (2) of\r\nSection 23 of the Senior Citizens Act, the transaction\r\ncould be declared as null and void provided the same\r\ncontains the stipulation that the transferee shall\r\nmaintain the senior citizen and the aforesaid Gift Deed\r\ndoes not contain any such stipulation. In the absence of\r\nany condition stipulated in the documents, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">provisions of Sub-sections (1) and (2) of Section 23 of\r\nthe Senior Citizens Act are not attracted.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>14. Careful perusal of the petition under Section 23\r\nfiled by respondent no. 1 shows that it is not even\r\npleaded that the release deed was executed subject to\r\na condition that the transferees (the daughters of\r\nrespondent no. 1) would provide the basic amenities\r\nand basic physical needs to respondent no. 1. Even in\r\nthe impugned order dated 22nd May 2018 passed by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Maintenance Tribunal, no such finding has been\r\nrecorded. It seems that oral evidence was not\r\nadduced by the parties. As can be seen from the\r\nimpugned judgment of the Tribunal, immediately after\r\na reply was filed by the appellant that the petition was\r\nfixed for arguments. Effecting transfer subject to a\r\ncondition of providing the basic amenities and basic\r\nphysical needs to the transferor - senior citizen is sine\r\nqua non for applicability of sub-section (1) of Section\r\n23. In the present case, as stated earlier, it is not\r\neven pleaded by respondent no. 1 that the release\r\ndeed was executed subject to such a condition.\"</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>24. On careful reading of the contents of the Gift\r\nDeed, dated 23.2.2012, the impugned order passed by\r\nthe learned Single Judge of this Court is in consonance\r\nwith the provisions of Sub-sections (1) and (2) of\r\nSection 23 of the Maintenance and Welfare of Parents\r\nand Senior Citizens Act, 2007, as the Gift Deed, dated\r\n23.2.2011, does not contain any stipulation that\r\nrespondent No.3 is under obligation to maintain the\r\npresent appellant. In the absence of the same, it cannot\r\nbe held that the impugned order passed by the learned\r\nSingle Judge is not in consonance with the provisions of\r\nSection 23 of the Senior Citizens Act.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>25. Though our conscious is in favour of the\r\nwelfare of the Senior Citizens considering the scope and\r\nobject of Maintenance and Welfare of Parents and\r\nSenior Citizens Act, 2007, but our hands are tied in view\r\nof the dictum of the Hon\'ble Supreme Court in the case\r\nof Sudesh Chhikara, wherein while interpreting the very\r\nprovisions of Sub-section (1) of Section 23 of the said\r\nAct, it has been held that the two conditions must be\r\nstipulated in the document, which is binding on all\r\nincluding this Court as contemplated under Article 141\r\nof the Constitution of India.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>26. The judgments relied upon by the learned\r\nSenior Counsel for the appellant are not applicable to\r\nthe peculiar facts and circumstances of the present\r\ncase, in view of the latest dictum of the Hon\'ble\r\nSupreme Court rendered on 6th December 2022 in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">case of Sudesh Chhikara -vs- Ramthi Devi reported in\r\nLAWS(SC) 2022-12-17.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the light of the aforesaid judgment of the Apex Court and that of\r\nthe Division Bench of this Court what would unmistakably emerge\r\nis, the Assistant Commissioner could not have annulled the gift\r\ndeed, unless the condition that is observed by the Apex Court in\r\nRAMTI DEVI is fulfilled in a gift deed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Two divergent opinions emerge before the High Court of\r\nKerala in SUBHASHINI v. DISTRICT COLLECTOR . The matter\r\nwas then referred to a Full Bench. The reference was made by a\r\nDivision Bench in the light of conflict of two Benches where the\r\nconflict is answered in the following manner: </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>25.. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the learned Single Judge found\r\nthat the gift made by the father, who is no more, cannot\r\nbe set aside under Section 23. The Division Bench\r\nagreed with that and found that on setting aside of gift\r\nmade by the mother, she along with her daughter\r\nbecomes co-owners of the property.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>28. Section 23 does not create or negate any\r\nsubstantive rights; except the one mentioned above and\r\nmerely provides a procedure for speedy recovery, to\r\nensure which a deeming fiction is created with respect\r\nto certain categories of transfer of property, made\r\nsubject to a condition. The fiction created; on a breach\r\nof the specified condition, deems the transfer itself to\r\nbe vitiated by reason of fraud, coercion or exercise of\r\nundue influence. The transfer of property as spoken of\r\nin the provision has to concede to the various transfers\r\nspoken of in the T.P Act. The vitiating factors are those\r\navailable under common law and defined under the\r\nIndian Contract Act. Normally the transferor will have to\r\napproach the civil courts to enforce his claim to get the\r\ntransfer set aside. When a remedy is sought before the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Civil Court, the normal rules of evidence applies and the\r\nadjudication is carried on by a judicial officer.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>49. One other aspect is that the option if\r\nexercised, cannot be withdrawn and if the senior citizen\r\nexpires immediately after the declaration by the\r\nTribunal, the property would revert as the estate of the\r\ndeceased and every legal heir acquires a right to inherit.\r\nWe specifically notice the Division Bench judgment of\r\nthis court in Antony Scaria & Anr. v. District Collector &\r\nOrs. [2020 (3) KLT 183], wherein before the death of\r\nthe transferor there was no declaration made by the\r\nTribunal. The writ petition was filed by the transferor\r\nagainst the refusal of the Tribunal and the appellate\r\nauthority to invoke its jurisdiction under Section 23(1).\r\nPending writ petition, the transferor died when the\r\nother legal heirs sought to continue the proceedings. It\r\nwas held that the right to approach the Maintenance\r\nTribunal is in the personal capacity of the senior citizen\r\nand not a heritable right under common law. The\r\nsituation would be quite different if in the life time of\r\nthe senior citizen the declaration is made by the\r\nTribunal. On his death the property devolves on the\r\nlegal heirs.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>52. We conclude by answering the reference, that\r\nthe condition as required under Section 23(1) for\r\nprovision of basic amenities and basic physical needs to\r\na senior citizen has to be expressly stated in the\r\ndocument of transfer, which transfer can only be one by\r\nway of gift or which partakes the character of gift or a\r\nsimilar gratuitous transfer. It is the jurisdictional fact,\r\nwhich the Tribunal will have to look into before invoking\r\nSection 23(1) and proceeding on a summary enquiry.\r\nWe answer the reference agreeing with the decision in\r\nW.A.No.2012 of 2012 dated 28.11.2012 [Malukutty\r\nPonnarassery v. P.Rajan Ponnarassery]. We find\r\nShabeen Martin v. Muriel [2016 (5) KHC 603] and\r\nSundhari v. Revenue Divisional Officer [2018 KHC 4655\r\n= 2013 (3) KLT 1082] to be wrongly decided. We <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">approve Radhamani v. State of Kerala [2016 (1) KHC 9]\r\nwhich had a recital in the document akin to that\r\nrequired under Section 23(1).”</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Full Bench of the High Court of Kerala interpreting Section 23 of\r\nthe Act and analyzing the law on the point holds that unless a\r\ncondition is stipulated in favour of the senior citizen in the recitals <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the gift deed, the Assistant Commissioner would not get\r\njurisdiction to annul the gift deed. The Full Bench of the High Court\r\nof Kerala after answering the reference as afore-quoted left it open\r\nto the senior citizen to approach the Assistant Commissioner if the\r\nsenior citizen would need enhancement of maintenance, as\r\nmaintenance was already directed to be paid in the afore-quoted\r\nparagraphs.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. Then comes certain line of judgments of the High Court of\r\nBombay and the High Court of Madras which follow a three Judge\r\nBench judgment of the Apex Court in the case of S.VANITHA v.\r\nDEPUTY COMMISSIONER . The High Court of Bombay and High\r\nCourt of Madras declined to follow the judgment of the Apex Court\r\nin the case of RAMTI DEVI and hold that under the Act it is\r\npresumed that the donor should be taken care of, as love and\r\naffection cannot be restricted to just love and affection, but care\r\nand necessities. The judgments of the learned Judges of respective\r\nHigh Courts would only have a persuasive value. The Division\r\nBench of this Court in the case of NANJAPPA supra has clearly <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">held following the judgment in RAMTI DEVI, in its judgment\r\nrendered on 17th March 2023, that unless there is a condition, the\r\ngift deed cannot be annulled. I deem it appropriate to follow the\r\njudgment of the Apex Court in the case of RAMTI DEVI on the\r\nissue and that of the Division Bench of this Court in the case of\r\nNANJAPPA, as this Court has held following the said judgment in\r\nRAMTI DEVI in the case of S. SURESH v. ASSISTANT\r\nCOMMISSIONER  as follows:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>6. Thus, from the perusal of the aforesaid\r\nprovision, it is evident that if the Senior Citizen after\r\ncommencement of the Act has gifted the property\r\nsubject to the condition that the transferee shall\r\nprovide the basic amenities and basic physical needs\r\nto the transferor and in case transferee refuses or\r\nfails to do so, the transfer of the property shall be\r\ndeemed to have been made by fraud or coercion or\r\nunder undue influence and shall at the option of the\r\ntransferor be declared void by the Tribunal. </i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>7. In the instant case, deceasedrespondent No.4, who was the mother of the\r\nappellant had executed the gift deed dated\r\n08.07.2015. The aforesaid gift deed does not\r\ncontain any stipulation with regard to\r\nmaintenance of deceased-respondent No.4. The\r\nrelevant extract of the Gift deed is reproduced below\r\nfor the facility of reference.\r\n\"That, because of love and affection and\r\nyou, my daughter viz., N.D. Vanmala is\r\nbeing looked after me in all manner, today, I\r\nam gifting the below mentioned schedule\r\nproperty, through this gift deed and along\r\nwith possession of the schedule property.\r\nHereinafter, you are required to get transfer\r\nthe Khata of the schedule property in your\r\nname and to pay the revenue and also to\r\nenjoy the same with complete ownership at\r\nyour wish. That except you, neither myself\r\nnor any other of my successors have no any\r\nkind of rights or interest over the schedule\r\nproperty hereinafter.\"</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n8. Thus from the perusal of the relevant\r\nextract of the Gift deed, it is evident that the\r\nGift deed does not contain any condition that\r\nthe transferee, namely, the appellant shall\r\nprovide the basic amenities and basic physical\r\nneeds to the transferor. On the other hand,\r\nGift deed has recorded that the appellant has\r\ntaken care of respondent No.4. Respondent\r\nNo.4 has expired during the pendency of the\r\nappeal. In the absence of any stipulation in\r\nthe gift deed with regard to the maintenance\r\nof respondent No.4, the Assistant <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Commissioner had no authority under\r\nSection 23 of the Act to declare the Gift deed\r\nto be void. However, the aforesaid aspect of\r\nthe matter has not been appreciated by the\r\nlearned Single Judge.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. On a coalesce of the judgments quoted hereinabove, what\r\nwould unmistakably emerge is, that the Assistant Commissioner\r\nwould get jurisdiction to annul the gift deed only if the recitals in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the gift deed have the condition, as observed by the Apex Court in\r\nRAMTI DEVI. The gift deed is quoted supra. There is no condition\r\nin the gift deed that would satisfy the test laid down in RAMTI\r\nDEVI. Therefore, this Court cannot but interfere with the order\r\npassed by the Assistant Commissioner.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. With regard to other submission whether the property\r\nwould devolve back to the hands of the father after the death of his\r\nwife who was the recipient of the first gift deed is concerned, I\r\nleave the issue open to be agitated by the parties before a\r\ncompetent civil Court, as the submission of the learned senior\r\ncounsel for the father is, notwithstanding he himself having\r\nexecuted gift deed, he had no power to execute a second gift deed,\r\nas the property even according to him did not come to him and he\r\ncould not have executed the gift deed and the family members <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">were entitled to a share in the property. All these factors will have\r\nto be thrashed out before a competent civil Court, and therefore, I\r\nleave open to the parties to approach the competent civil Court for\r\nredressal of their residuary grievances.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 16. It is an admitted fact that the father is getting `10,000/-\r\nfrom out of the deposit made on `15/- lakhs in Life Insurance\r\nCorporation of India. But, in the growing cost of living the said\r\namount would not be enough. Therefore, I deem it appropriate to\r\ndirect the beneficiary of the gift deed viz., the 4th respondent/son to\r\npay maintenance to the 3rd respondent/father of `10,000/- per\r\nmonth apart from `10,000/- that he is getting out of the interest of\r\nthe deposit from the LIC and also reserve liberty to the father to\r\nseek enhancement of maintenance, if need arises before the\r\nAssistant Commissioner.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Writ Petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '20fa9b10279339ede549e9e32095fc9a.jpeg', '0f32cf78f2fe7296b1164309b480a9d2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2024-06-06', 1, '', '', '2024-06-05 13:16:11', '2024-06-06 06:27:31');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1537, '8Kcqu0UitU5Bo746ZJiXOAHJ6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Even if the goods are not produced or sold in India, plaintiff can establish reputation in India and seek an order of injunction against infringement of its registered trademark. Delhi High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>HTC Corporation Vs Mr. LV Degao and Others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CS(COMM) 263 of 2020 decided on 6 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Asha Menon.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">1. This order will dispose of the application [I.A.5795/2020] under\r\nOrder XXXIX Rules 1 & 2 Code of Civil Procedure, 1908 (for short, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“CPC”) filed by the plaintiff along with the suit for declaration,\r\npermanent injunction, restraining infringement of trade mark, passing off,\r\ndilution, unfair competition, rendition of accounts/damages, delivery up\r\netc.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. The plaintiff is a company incorporated under the laws of Taiwan\r\nand claims to be a leading manufacturer of consumer electronic items,\r\nsuch as, smartphones, mobile phones, personal digital assistant (PDA)\r\ndevices, virtual reality head-mounted displays, etc. The plaintiff was\r\ninitially incorporated in the year 1997 as „High Tech Computer\r\nCorporation?, but gained popularity quickly as “HTC” and has been\r\nknown as such since 1998. The plaintiff also used these alphabets for the\r\nfirst time in 1998 in relation to its product i.e., a phone named “HTC\r\nKangaroo”. In 2008, the plaintiff formally changed its name to “HTC\r\nCorporation” reflecting the growing popularity of the “HTC” brand.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. The plaintiff got the Trade Mark registered in India in\r\nClass-9 on 12th May, 2006, vide Registration No.1451016 which was\r\nvalid till 12th May, 2026. It has been doing business in India using the\r\nsaid Trade Mark since 2007, though it had begun using it\r\ninternationally since 2006. In 2008, the plaintiff also launched the first\r\never Android-based mobile phone under the trade mark /HTC\r\nDream in India. It applied for and was granted registration of the Trade\r\nMark on 24th January, 2008 vide Registration No.1645578 in Class- <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9 in India. On 24th November, 2011, the plaintiff applied for and was\r\ngranted registration of its Trade Mark in Class 9 in India. On\r\n7\r\nth March, 2014, the plaintiff obtained international registration for the\r\nTrade Mark in China in Class 9 vide Registration No.6481646 and\r\non 21st March, 2015, in Class 8 vide Registration No.12262154.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. The defendant No.1/L V Degao is a Chinese individual and owner\r\nof the defendants No.2 to 4/Companies, namely, Yongkang Geenew Imp\r\n& Exp Co., Ltd. (defendant No.2), Yongkang Xinshiji Hairdressing Tools\r\nFactory (defendant No.3) and Yongkang Xinji Hair Dressing Appliance\r\nFactory (defendant No.4). The defendants No.2 to 4 are manufacturers of\r\nelectric hair trimmers, hair clippers and hair dryers bearing identical\r\ninfringing Trade Mark /HTC in China and exporting/supplying the\r\nsame to the other defendants in India. These defendants are also selling\r\ntheir products not only through the defendants No.5 to 9, but also through\r\nAmazon India website.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>41. From these provisions, the following may be culled out:-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(a) Two persons may have the same Trade Mark registered in their\r\nname:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) for identical or</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) similar or</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) different goods.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(b) Ordinarily if the two Trade Marks are validly registered, both\r\nthe registered proprietors can use the Trade Marks to the\r\nexclusivity of third parties, but cannot assert their rights against\r\neach other.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(c) However in certain situations, registration of the later Trade\r\nMark may be refused registration or cancelled. These situations\r\nare:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) when deception or confusion results,</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) there is\r\ndishonest user,</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) subsequent use without due cause,</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iv) there\r\nis bad faith, or</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(v) dilution of the distinctiveness of a prior\r\nregistered Trade Mark may occur.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(d)Therefore, these factors would be relevant to decide whether the\r\nsubsequent user/registered proprietor should be restrained from\r\nusing his Trade Mark, even if it was registered.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(e) Certain other aspects would also aid this determination, for example,</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) whether user is only to indicate origin of the goods,</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) the reputation of the Trade Mark,</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) whether it is “wellknown”,</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iv) whether the prior user has established acquisition\r\nof distinctiveness, or</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(v) whether he had acquiesced in the\r\nlatter?s user of the same Trade Mark and if so, to what effect. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>43. It was submitted that „HTC? stood for „High Tech Computers?\r\nmanufactured and sold by the plaintiff since 2006, and over a period of\r\ntime, when these became “popular” and “well-known” amongst the\r\nconsumers, the company?s corporate name itself was changed to „HTC?,\r\nbeing the initial alphabets of „High Tech Computers?. The name „HTC?\r\nitself has thus gained immense recognition and popularity and indicates\r\nthe origin of the products of the plaintiff. In contrast, is the lame\r\nexplanation offered on behalf of the defendants that their HTC stood for\r\nHigh Tech Trimmers and Clippers, and that they have started use only in\r\n2013, and are thus “subsequent user”. As rightly pointed out by the\r\nlearned counsel for the plaintiff, these alphabets do not adequately stand\r\nfor the products of the defendants, as it would then be “HTTC”. It is\r\nclear, whereas the plaintiff has a logical explanation for using random\r\nalphabets in their Trade Mark, which, in course of time, has acquired a\r\ndistinctiveness leading to even a change in the corporate name, the\r\ndefendants have none. The only inference that can be drawn is that the\r\ndefendants sought to sail with the plaintiff?s “to gain unfair advantage”,\r\nand such adoption by the defendants of the plaintiff?s Trade Mark is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“without due cause”.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>44. It is also more than evident that whereas the plaintiff has identified\r\nits goods through its registered Trade Mark, the defendants are not using\r\nit in the same manner. As noticed earlier, the plaintiff began with the\r\nname of High Tech Computers, but it was due to the quality of its\r\nproducts and the reputation it had built up that the Trade Mark of HTC\r\nbecame an indicator of the origin of the goods of the plaintiff, being\r\ndirectly relatable to their corporate name. In other words, the quality of\r\nthe goods led to the reputation of the trade mark HTC, which thus became\r\nan indicator of the origin of the goods. The action of the defendants, on\r\nthe other hand, has no valid explanation and under no circumstance, can\r\nbe taken as indicative of the origin of the products of the defendants. In\r\nfact, their action is not in accordance with the honest practices in\r\nindustrial or commercial matters and rather is an act clearly to take unfair\r\nadvantage of the repute of the plaintiff?s trade mark. No benefit can be\r\nclaimed under Section 30(2)(e) of the T.M. Act, as the use permitted\r\nthereunder is governed by Section 30(1) (a)&(b) of the T.M. Act, which\r\nare not made out.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">45. The dishonesty in the use of the Trade Mark / is also\r\nreflected from the fact that the defendants No.1 to 4 had hyperlinked their\r\nweb-page with that of the plaintiff on the E-commerce portal of Amazon\r\nIndia, as mentioned at pages No. 47 to 49 of the plaint. The link provided\r\nto the website of the plaintiff in the advertisement of the defendants No.2\r\nand 3 is as if, to indicate, a link to the plaintiff. There is no earthly reason\r\nfor the defendants to have done such a thing. The only explanation is that</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the defendants actually desired to dishonestly ride on the reputation of the\r\nplaintiff by using an identical Trade Mark. It is also to be noted that while\r\nthe defendant No.1 is the proprietor of the trade mark , in the\r\nadvertisement as well as in the products of the defendants, it is the „ ?\r\nmark that was used, which is clearly a copy of the registered Trade Mark\r\nof the plaintiff. To now offer to use only its registered Trade Mark, is\r\ninsufficient to exonerate this dishonesty of the defendants. By providing a\r\nlink to the plaintiff?s site from that of the defendants, their intent to blur\r\nthe source and origin of the goods is established. Thus, no protection\r\nunder Section 30 of the T.M. Act is available to the defendants for use of\r\ntheir registered Trade Mark.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>46. In fact the lame explanation offered for the adoption of the random\r\nalphabets „HTC? and the copying of the exact trade mark of the plaintiff,\r\nnamely, / , prima facie discloses dishonest use and bad faith,\r\nwrit large in the use and adoption of these Trade Marks by the\r\ndefendants.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>47. Though much has been said about the dissimilar nature of the\r\nproducts and that consumers would easily be able to distinguish between\r\nhair trimmers and clippers and computers/mobile phones, etc., and that\r\nnot only infringement, but passing off was also not made out, this\r\nargument is without force. In ITC Limited vs. Philip Morris Products SA\r\nand Ors, 2010 SCC OnLine Del 27 and M/s. Hindustan Pencils Pvt. Ltd.\r\nv. M/s. India Stationery Products Co. and Another, 1989 SCC OnLine\r\nDel 34, the view taken by this court, was that the misleading indication of\r\nsource as if of the registered proprietor of the Trade Mark, was sufficient <span style=\"font-size: 12pt;\">ground to injunct the use of a similar Trade Mark by the defendant.\r\nThough it is true that “Philips & Co.” produces both products i.e.,\r\ncomputer products as well as grooming products, that fact situation\r\ncannot exclude the application of that decision to the facts of the present\r\ncase, since it is common to find companies producing and marketing a\r\nlarge number of disparate products under a single registered Trade Mark.\r\nFor a consumer of average intelligence and observation, it may not be\r\ndifficult to believe that the hair grooming products of the defendants with\r\nthe Trade Mark and link to the website of the plaintiff, were actually\r\nbeing produced and marketed by the plaintiff. This being an act of\r\ndeception and creation of confusion, is against even public interest.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>48. Returning to the provisions of the T.M. Act, it is more than clear\r\nthat were it a question before the Registrar of Trade Marks, the\r\ndefendants would have not succeeded in getting that trade mark registered\r\nas apart from the identical nature of the trade marks, its adoption has been\r\ndishonest, against commercial practice and with an intent to cause\r\nconfusion in the public that the products are originating from the same\r\ncompany. But since that is a question that would be appropriately\r\nconsidered in the rectification proceedings, suffice it to note that the\r\nprima facie existence of the factors that would negate the rights of the\r\ndefendants would establish a prima facie case in favour of the plaintiff for\r\nan injunction even in respect of a registered trade mark, as in the present\r\ncase. Though, an argument was advanced by the learned counsel for the\r\ndefendants that under Section 29(4), the registered trade mark had to have\r\na “well-known” reputation in India, this Court finds no reason to read into <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 29(4), the need to have the plaintiff establish prima facie, that its\r\nregistered Trade Mark is “well-known” as defined by Section 2(z)(g) of\r\nthe T.M. Act, before protection is extended on the ground of the\r\ndefendants? passing off their goods as those of the plaintiff by adopting a\r\nsimilar or an identical trade mark for their goods.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>49. In fact, in Ashok Leyland Limited v. Blue Hills Logistics Pvt. Ltd.\r\n& Anr., 2011 (46) PTC 535 (Mad.), an exhaustive discussion has been\r\nmade of what would constitute reputation as required under Section 29(4)\r\nof the T.M. Act. It was concluded, after referring to various judgments,\r\nincluding of the Supreme Court and the Delhi High Court, that\r\n“goodwill” and “reputation” cannot be held to be directly proportionate to\r\nthe turnover or the net profits earned in business. “Turnover” is only an\r\nindication of success and may be one of the several factors that may\r\nreveal “goodwill” and “reputation”. The court was of the view that\r\n“Section 24(4)(c) does not expect the registered trade mark of the\r\nplaintiff to have become a well-known Trade Mark within the meaning of\r\nSection 2(1)(z)(g)” and as what was only required was that the registered\r\nTrade Mark had acquired a “reputation in India”.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>50. Thus, the argument of the learned counsel for the defendants that\r\nsince the plaintiff has not sold one hair trimmer of clipper in India, having\r\nnot produced one, they did not have a reputation in India which could be\r\nprotected under Section 29(4) or against passing off, is without\r\nfoundation. This argument of the learned counsel for the defendants was\r\ncountered by learned counsel for the plaintiff by submitting that\r\nreputation can be a spill-over and even if the products were not available <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in India, the possibility that there would be ready buyers on account of\r\nthe existing reputation built up by the plaintiff for its computer products\r\nwas sufficient to establish entitlement for injunction.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>51. The view taken by a Coordinate Bench of this Court in Cadbury\r\nUK Ltd. v. Lotte India Corpn. Ltd., (2014) 2 HCC (Del) 736 would seem\r\nto support this contention, though there the discussion was on global\r\nreputation of chocolates known as “Cadbury?s Choclairs” and “Parry?s\r\nChoclairs”, one of which, i.e., Parry?s Choclairs, later known as “Lotte\r\nChoclairs” were being marketed in India, whereas Cadbury introduced\r\ntheir Choclairs later.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>54. The situation is the same in the present case. The unfair and\r\ndishonest use of the identical trade mark by the defendants for their\r\nproducts clearly riding on the reputation of the plaintiff with clear intent\r\nto take unfair advantage of the reputation, cannot, but lead to, a\r\ndetrimental effect on the distinctive character of the trade mark of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">plaintiff, namely, / initially drawn from their corporate name\r\nand subsequently, itself becoming the corporate name of the plaintiff\r\ncompany.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>55. Learned counsel for the defendant No.1 submitted that there were\r\nno averments in the plaint regarding passing off and that in any case\r\n“goodwill” had not been established, but the fact remains that from the\r\nsales figures of the plaintiff?s goods in India in 2010 of about USD 86.3\r\nmillion, which rose to USD 288.8 million in 2015, it is established that\r\nthe plaintiff?s Trade Mark is “well-known” and there is “goodwill” in\r\nrespect of its goods. Considering the fact, as noticed above, that the same\r\ncompany may produce different products that are seemingly unconnected\r\nand dissimilar and not cognate, it is possible for a common consumer to\r\nbelieve that the products of the defendants were originating from the\r\nplaintiff and thus, though the “goodwill” is qua the specific products of\r\nthe plaintiff, would still be available to enhance the sale of the\r\ndefendants.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>56. Therefore, the plaintiff has disclosed a prima facie case not only\r\nfor infringement of the Trade Mark (drawing assistance from the\r\nparameters provided under Section 29(4) of the T.M. Act), but also for\r\npassing off. The damage caused to the plaintiff would be irreparable as\r\nthe continued use of the registered Trade Mark of the defendant No.1\r\nwould ultimately result in dilution of the Trade Mark and that too, on\r\naccount of „dishonest use?. The “balance of convenience” lies in favour of\r\nthe plaintiff inasmuch as the products of the defendants have been\r\nlaunched only lately and the invoices show that these products have been </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>57. The application [I.A.5795/2020] is accordingly allowed and till the\r\ndecision in the rectification/cancellation proceedings is rendered, the\r\ndefendants No.1 to 4, their directors, partners or proprietors, etc., are\r\nrestrained forthwith from manufacturing, selling, supplying, offering for\r\nsale, including through online platforms, exporting, importing, directly or\r\nindirectly dealing in hair trimmers, hair clippers, hair dryers or any other\r\ngoods bearing the impugned Trade Marks / and/or any other\r\ntrade mark/device/logo as may be identical with or deceptively similar to\r\nthe plaintiff?s trade mark/trade name/ / , amounting to\r\ninfringement of the registered trade mark, dilution and passing off. The\r\ndefendants shall also place on the record the sales figures and the\r\nrevenues from the sale of its products from the date of the filing of the\r\nsuit, till 30th April, 2022.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>58. The suit [CS(COMM) 263/2020] is stayed, to be revived by either\r\nparty after the disposal of the rectification/cancellation proceedings.\r\nNeedless to state that the view taken is on a prima facie basis and will not\r\nreflect on the merits of the suit or the rectification proceedings.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n59. The application stands disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f56fa8985f40248df6057a8cbe214766.png', 'b91f7a9632b9175de328473d87e319d2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-08', 1, '', '', '2022-04-07 22:17:16', '2022-04-08 14:12:33'),
(1538, '1obqnJNsIJaZU6EAFfNcJuqNl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When a compromise is filed before the Court, only that Court must record the compromise. The matter cannot be referred to the Lok- Adalat. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Renuka Anand Vs Ramanand Ramakrishnasa Basawa and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 103766 of 2018 decided on 31 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The grievance of the petitioner is that a compromise petition was entered into in O.S. No.246/2014 pending on the file of the Principal Senior Civil Judge at Hubballi in the Lok-Adalat proceedings by a person claiming to be the power of attorney holder of the petitioner and as such the petitioner’s interest in the suit schedule property therein has  been  compromised without the knowledge of the petitioner and therefore a fraud has been committed on the petitioner by resorting to an abuse of the process of the Court and filing of a compromise petition in the Lok-Adalat.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Sri.Mahesh Wodeyar, learned counsel for the petitioner submits that the suit in O.S. No.246/2014 had been filed by respondent No.2 herein against the petitioner represented by the power of attorney  holder seeking for specific performance of an alleged agreement of sale dated 25.04.2014 which is alleged to have been executed by the alleged power of attorney holder of the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. In the said suit upon notice being ordered without service of notice on the petitioner, respondent No.1 who claims to be the power of attorney holder of the petitioner had entered appearance and filed a compromise petition even before return of  notice. The compromise petition having been filed before the Court, the matter was referred to the Lok-Adalat and in that Lok-Adalat a compromise was recorded by the conciliators and compromise decree was directed to be passed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Sri.Mahesh Wodeyar submits that once earlier a power of attorney which had been issued in favour of the father of respondent No.1 as regards the said properties had been cancelled by a public notice  dated 15.12.2012 published in the newspaper Sanjevani on 16th December, 2012. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The petitioner not having executed any power of attorney in favour of respondent No.1, the power of attorney claimed by respondent No.1 is  fabricated one and as such neither the agreement of sale could be executed by respondent No.1 in favour of respondent No.2 nor could a compromise be entered into by the respondent No.1 with respondent No.2 for the Lok-Adalat to record. In the above  background, he submits that the petition needs to be allowed and the compromise recorded by the Lok-Adalat be set aside as also the compromise decree drawn up in pursuance thereto. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. Per contra, Sri.Padmanabha Mahale, learned Senior counsel appearing for the respondents would submit that respondent No.1 is the power of attorney holder of the petitioner and respondent No.1 has entered  into a compromise with the knowledge and consent   of the petitioner with respondent No.2. The compromise having been filed before the Court and the Court having forwarded the matter to the Lok- Adalat the compromise is one which is filed before  the Court and as such the present petition is not maintainable since the trial Court having taken the compromise on record, only a suit challenging the compromise is maintainable.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. The suit in O.S. No.246/2014 had been filed for specific performance of an agreement of sale dated 25.04.2014 said to have been executed by power of attorney holder of the petitioner herein namely, respondent No.1 in favour of respondent No.2. The cause title of the said suit leads to an interesting reading inasmuch as the defendant though is named as Smt.Renuka (petitioner herein) her address is shown as resident of Keshwapur and is represented  by her GPA holder respondent No.1 with the address of respondent No.1 shown in the cause title. In the cause title, the address of the petitioner has not been shown except for her being named. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. Notice having been ordered on the defendant the power of attorney holder enters appearance for the defendant therein and enters into a compromise. It fails to reason as to how a party to a proceeding namely a defendant can be said to be represented by power of attorney when a person is arrayed as a  party defendant, it is for the said person who is arrayed as a defendant to appoint a power of  attorney or not. The plaintiff in a suit cannot in my considered opinion array a defendant to be represented by power of attorney showing  the address of the said power of attorney without even showing the address of the defendant. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. The facts of this case are even more peculiar inasmuch as the suit was filed for specific performance of an agreement dated 25.04.2014  which is stated to be executed by the very same power of attorney shown in the cause title. Thus, admittedly the defendant therein has not executed any agreement but the agreement was executed by a person claiming to be power of attorney of the defendant.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. The proceedings take curious turn by the power of attorney appearing in the proceedings and filing a compromise petition immediately after issuance of notice and the said compromise is referred to a Lok- Adalat. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. It is further surprising that the very same counsel appears in these proceedings for both  the respondents i.e. the plaintiff in O.S. No.246/2014 as also the power of attorney representing  the defendant in O.S. No.246/2014. This in no uncertain terms in my considered opinion establishes the collusion between power of attorney and plaintiff in O.S. No.246/2014. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">16. The net result of the entire proceedings and  procedure followed is that the plaintiff who was not aware of the said proceedings, a compromise decree has been passed against the petitioner who though arrayed as a party to the preceding was never served </font></span><font face=\"Calibri, sans-serif\">with the notice nor did the defendant contest the said the proceedings. </font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17. Apart there from there is a procedural irregularity in inasmuch as the compromise petition was filed before the Court and thereafter the matter referred to Lok-Adalat for recordal of the compromise.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18. This Court has held that such a practice of recording compromise before the Court and thereafter referring to Lok-Adalat is not contemplated in the Legal Services Authorities Act, 1987 and such compromise  if recorded  before the Lok-Adalat is required to be  set aside.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20. This Court has also been coming across several matters relating to such compromise before the Lok- Adalat which are challenged by way of writ petitions. Hence, I also deem it fit to issue general directions in respect of such matters which are referred to Lok- Adalat and compromise recorded as under:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>When a compromise is filed before the Court in terms of the decision in Smt.Akkubai vs. Shri Venkatrao and Others [ILR 2014 KAR 2051] (supra) it is for the Court to record the compromise and not refer the matter to the Lok- Adalat.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>It is only if there is no settlement arrived at  before the Court and the parties request for the matter to be referred to Lok-Adalat to enable a settlement then in such event the parties are to  be referred to the Lok-Adalat and in the event of  a compromise being arrived at before the Lok- Adalat, the same could be recorded by the lok- Adalat.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space:pre\">	</span>When the matter is referred to Lok-Adalat, separate order sheets would have to be opened and maintained by the said Lok-Adalat and the order sheet of the Court in the suit cannot be  used by the Lok-Adalat.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iv)<span style=\"white-space:pre\">	</span>The trial Court and or the Lok-Adalat while recording compromise is required to ascertain if the parties are present personally as also to ascertain and verify their identities by production of suitable documentary proof.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(v)<span style=\"white-space:pre\">	</span>In the event of a power of attorney appearing, it would be the bounden duty of the Court or the Lok-Adalat to ascertain if the concerned party has been served with notice.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(vi)<span style=\"white-space:pre\">	</span>The Court as also the Lok-Adalat would always have to be suspicious if the party were to enter appearance even before service of notice which is a red flag that there is something that is fishy in the matter. Licence, Passport Copy, Election Identity card, etc.,) are obtained as a matter of rule.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">21. </font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">ORDER</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">i.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">The petition is allowed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">ii.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">A certiorari is issued. The compromise decree dated 26.07.2014 in O.S. No.246/2014 as recorded by the Lok-Adalat is quashed. O.S. No.246/2014 is restored to the file.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">iii.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">The petitioner is at liberty to contest the said suit before the trial Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">iv.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">All issues are left open including the aspect of whether power of attorney being genuine or otherwise.</span></b></p>', 'f4fb2ed675b8d496cd418afeb0c58fdd.jpeg', 'c7b7b21a97ecb810b9ebad3aa7bd1053.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-08', 1, '', '', '2022-04-08 18:16:09', '2022-04-08 16:14:43');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1539, 'JkAaFyIlqqCHXUy28eJIghXcs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘’STIMULATES MIND. ENERGIZES BODY’’ Tagline is not deceptively similar to ‘’VITALIZES BODY AND MIND’’. Delhi High Court refuses interim injunction to Red Bull AG against PepsiCo India. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Red Bull AG Vs PepsiCo India Holdings Pvt Ltd and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CS(COMM) 1092 of 2018 decided on 6 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Amit Bansal.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">1. By way of the present judgment, I shall dispose of the application\r\nfiled on behalf of the plaintiff under Order XXXIX Rules 1 and 2 of the\r\nCode of Civil Procedure, 1908 (CPC) seeking interim injunction against the\r\ndefendants, restraining the defendants from using the tagline\r\n“STIMULATES MIND. ENERGIZES BODY.”, which is claimed to be </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">deceptively similar to the plaintiff’s registered trademark/tagline\r\n“VITALIZES BODY AND MIND.”.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Counsel for the plaintiff made the following submissions:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>I. The plaintiff and its group of companies have been manufacturing and\r\nmarketing, inter alia, energy drinks sold under the trademark “Red Bull”,\r\nsince the year 1987.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>II. In relation to its product, the plaintiff is using the tagline\r\n“VITALIZES BODY AND MIND.” since the year 1987.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>III. The aforesaid tagline of the plaintiff has been registered as a\r\ntrademark in 73 different countries around the world.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>IV. In India, the aforesaid tagline was registered by the plaintiff in 2010,\r\nwith effect from 21stJanuary, 2004 under Class 32.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>V. The usage of the aforesaid mark has become a source identifier of the\r\nplaintiff’s products and on account of long and extensive usage, it has\r\nacquired distinctiveness in relation to the products of the plaintiff.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>VI. Plaintiff enjoys the dominant market share in respect of energy drinks\r\nall over the world, including India, as stated in paragraphs 22 and 23 of the\r\nplaint.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>VII. The plaintiff spends enormous amounts on the marketing of its\r\nproduct in relation to the aforesaid tagline of the plaintiff, as stated in\r\nparagraphs 27 and 28 of the plaint.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>VIII. The defendants launched their energy drink “STING” in India in the\r\nyear 2017 and adopted the tagline “STIMULATES MIND. ENERGIZES\r\nBODY.”, which is deceptively similar to the plaintiff’s registered tagline.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>IX. The words “BODY” and “MIND” have been copied by the\r\ndefendants, whereas the words “STIMULATES” and “ENERGIZES” are\r\nboth synonyms of the term “VITALIZES” used by the plaintiff. Therefore,\r\nthe term is conceptually identical to the plaintiff’s registered mark.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>X. The aforesaid tagline has been used by the defendants with mala fide\r\nand dishonest intention since the aforesaid tagline is not used by the\r\ndefendants anywhere else in the world.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>XI. The defendants have adopted the plaintiff’s tagline to ride upon the\r\ngoodwill and popularity of the plaintiff’s tagline, which amounts to\r\ninfringement as well as passing off.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. The product of the plaintiff is an energy drink, the purpose of which is\r\nto provide energy to the body. The words “VITALIZES” (used in the\r\nplaintiff’s tagline) and “STIMULATES”; “ENERGIZES”(used in the\r\ndefendant’s tagline) are synonyms as per the plaintiff’s own case</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. The aforesaid paragraph is a clear acknowledgement on behalf of the\r\nplaintiff that the aforesaid tagline/mark has been used by the plaintiff in a\r\nmanner so as to describe the attributes or quality of its drink. A person who\r\nconsumes the Red Bull energy drink has an assurance that the drink will\r\nrejuvenate, stimulate and energize the body as well as the mind. In fact, the\r\naforesaid words “STIMULATES” and “ENERGIZES” have been used by\r\nthe defendant in its impugned mark. The fact that the plaintiff has used the\r\naforesaid tagline in a descriptive manner is also evidenced by the fact that\r\nthe tagline appears as a sentence on the can of the plaintiff’s product,\r\nwherein the first word “VITALIZES” has the alphabet “V” in capital letters\r\nand the sentence ends with a full stop.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. I do not agree with the contention of the plaintiff that the aforesaid\r\ntagline of the plaintiff does not have a direct reference to the products of the\r\nplaintiff. It may be that the aforesaid tagline could also be used in respect of\r\nsome of the other products or services, but, in my view, the aforesaid\r\ntagline, which is a phrase or an expression, has a direct reference to the\r\nquality, intended purpose, values and other characteristics of the plaintiff’s\r\nproducts.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. In this regard, reliance is also placed on the Examination Report dated\r\n16th February, 2004 of the Trademark Registry, whereby the Registry had\r\nraised objection with regard to the plaintiff’s mark designating quality of the\r\nproducts. Though it has been contended on behalf of the defendants that the\r\nplaintiff did not file any response to the aforesaid objection raised by the\r\nRegistry, the counsel for the plaintiff has drawn attention of the Court to the\r\naffidavit dated 18th May, 2004 filed on behalf of the plaintiff in response to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the aforesaid Examination Report of the Registry. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. I have perused the affidavit filed on behalf of the plaintiff in respect\r\nof the examination report of the Registry. Even in the said affidavit, the\r\nplaintiff has nowhere claimed that the tagline is not descriptive of the\r\nplaintiff’s products. The entire focus of the aforesaid affidavit is that on\r\naccount of long usage and extensive amounts spent by the plaintiff towards\r\nadvertisement, the aforesaid tagline has become distinctive of the goods of\r\nthe plaintiff. Yet, the Trade Mark Registry proceeded to grant registration to\r\nthe plaintiff’s aforesaid tagline.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. Objection to the registration has been taken in the written statement\r\nby the defendants and a rectification application has also been filed on\r\nbehalf of the defendants under Section 124 of the Trade Marks Act on the\r\nground that the registration granted in favour of the plaintiff is invalid and\r\nthe same is pending adjudication.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. In view of the above, there is a doubt created over the registration\r\ngranted in favour of the plaintiff in respect of the aforesaid tagline.While\r\ndeciding the present application the Court has to take a prima facie view\r\nwith regard to the validity of the registration of the mark and in my prima\r\nfacie view, the tagline used by the plaintiff is of descriptive/laudatory\r\ncharacter, which ought not to have been granted registration in view of\r\nSection 9(1)(b) of the Trade Marks Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. The use of the impugned tagline by the defendants is also in a\r\ndescriptive/laudatory manner and not as a trademark. The tagline used by\r\nthe defendants, “STIMULATES MIND. ENERGIZES BODY.” is a phrase\r\nor an expression comprising of four words of the English language that aims <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to describe the features and quality of its drink. In comparison to the brand\r\nname of the defendants’product, “STING”, which is displayed prominently\r\non the cans, the impugned tagline only appears in a small font. Furthermore,\r\nthe defendants have not sought any registration in respect of the aforesaid\r\ntagline.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>27. Therefore, I do not accept the contention of the plaintiff that the\r\ndefendants are using the impugned mark in a manner that is likely to be\r\ntaken as being used as a trademark. Resultantly, no infringement has been\r\ncommitted by the defendants in terms of Section 29 of the Trade Marks Act.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>28. It has been vehemently contended on behalf of the plaintiff that the\r\nimpugned tagline of the defendants gives the same impression as that of the\r\nplaintiff. But, since the products of the plaintiff and defendants are of the\r\nsame kind, viz. energy drinks, descriptive or laudatory taglines in respect of\r\nthese products have necessarily to communicate the same idea. Therefore, it\r\ncannot be said that the adoption of the impugned mark by the defendants\r\nwas not bona fide. Resultantly, the defendants would be entitled to the\r\nbenefit of Section 30(2)(a) and Section 35 of the Trade Marks Act.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>29. In my prima facie view, the present case is squarely covered by the\r\njudgments of the Division Bench in Marico (supra) and Stockely Van\r\nCamp, Inc. (supra). The tagline of the plaintiff and the impugned tagline of\r\nthe defendants are both descriptive in nature and therefore, the plaintiff is\r\nnot entitled to grant of interim injunction against the defendants.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">30. The plaintiff has contended that the trademark, “Red Bull” is a wellknown trademark and has also acquired distinctiveness on account of long\r\nand extensive usage and the promotional expenses incurred by the plaintiff.\r\nHowever, at this stage, it cannot be said what part of the promotional </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">expenses or sales revenue is relatable to the tagline of the plaintiff and what\r\npart to the brand name of the plaintiff.This can be determined only at the\r\nstage of trial. Therefore, at this prima facie stage, it cannot be said that the\r\ntagline of the plaintiff “VITALIZES BODY AND MIND.” has acquired\r\ndistinctiveness and secondary meaning.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>31. In the present case, the defendants launched their products in India in\r\nOctober/November, 2017 using the impugned mark on their product.\r\nAlthough the present suit was filed in the year 2018, the fact of the matter is\r\nthat no injunction has been granted in favour of the plaintiff till date, even\r\nthough the delay may not entirely be attributable to the plaintiff. Even\r\nthough some of this delay may be attributable to the judicial process and/or\r\nthe outbreak of COVID-19 pandemic, the undisputed position is that the\r\ndefendants have been selling their product with the impugned mark for\r\nalmost five years. One of the factors to be weighed by the Court is whether\r\nor not at this stage, an interim injunction should be granted in favour of the\r\nplaintiff, restraining the defendants from using the impugned mark.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32. Applying the aforesaid principles and taking into account that the\r\ndefendants have been selling their product for a period of five years with the\r\naforesaid impugned mark, the balance of convenience would be against the\r\ngrant of interim injunction.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">33. Counsel for the plaintiff has placed reliance on the judgment of a\r\nDivision Bench of this Court in Procter & Gamble Manufacturing v.\r\nAnchor Health & Beauty Care Pvt. Ltd., 211 (2014) DLT 466 (DB). In the\r\naforesaid case, the respondent/plaintiff was using the expressions\r\n“ANCHOR ALLROUND PROTECTION” / “ALLROUND\r\nPROTECTION” and “ALLROUND” in respect of its toothpaste and the\r\nappellants/defendants were using the expression “ALL-AROUND\r\nPROTECTION” / “ALL-ROUNDER” / “ALLROUNDER” in respect of\r\ntheir toothpaste. Aggrieved therefrom, the plaintiff filed a suit against the\r\ndefendant in which an interim injunction was granted in favour of the\r\nplaintiff by the Single Judge.The appeal filed on behalf of the defendant\r\nagainst the grant of interim injunction was dismissed by the Division Bench.\r\nThe factors which weighed with the Division Bench in the aforesaid case to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">confirm the injunction were that the marks “ALLROUND PROTECTION”\r\nand “ALLROUND” were not descriptive marks. Further, the\r\nappellants/defendants had themselves obtained registration of the mark\r\n“ALL-AROUND PROTECTION” in the United States of America.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">34. In my view, both the aforesaid factors are enough to distinguish the\r\nfacts of the present case from the aforesaid case. In the present case, I have\r\nalready arrived at a prima facie view that the taglines used by both the\r\nplaintiff and the defendants are descriptive in nature as they describe the\r\nqualities/characteristic of their respective products. The Division Bench was\r\nof the view that the words “ALLROUND” and “ALLROUND\r\nPROTECTION” are not descriptive of the product toothpaste. The fact that\r\nthe defendants therein had applied for registration of the expression “ALLAROUND PROTECTION” in the United States of America was also one of\r\nthe factors which weighed with the Division Bench in coming to the\r\nconclusion that the marks therein were not descriptive.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36. The counsel for the plaintiff has also placed reliance on the judgment\r\nin Shree Nath Heritage Liquor (supra) in support of its contention that\r\nwhere a synonym of the plaintiff’s mark is used by the defendant, injunction\r\ncan be granted. But, the aforesaid judgment was in the context of the\r\nsynonyms being used as the main trademarks and not in the context of\r\ntaglines. Therefore, in my view, the aforesaid judgment would not be\r\napplicable in the facts and circumstances of the present case.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>37. Next, the plaintiff has relied upon the judgment in Anil Verma\r\n(supra). In the aforesaid judgment, the court held the slogans used by the\r\nplaintiff to be imaginative and not descriptive and therefore, granted\r\ninjunction in favour of the plaintiff. In the present case, I have already held\r\nthe two competing marks to be descriptive. Therefore, the judgment in Anil\r\nVerma (supra) will be of no use to the plaintiff.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>39. In view of the discussion above, the plaintiff has failed to establish a\r\nprima facie case in its favour for grant of interim injunction. Both the\r\ntaglines used by the plaintiff and the defendants are descriptive and\r\nlaudatory in nature. Whether the aforesaid tagline of the plaintiff has\r\nacquired distinctiveness or secondary meaning in respect of the plaintiff’s\r\nproducts can only be established at the stage of trial. Balance of\r\nconvenience is also in favour of the defendants for not granting interim\r\ninjunction as the products of the defendants have been selling in the market\r\nwith the impugned tagline for almost five years. Hence, the present\r\napplication under Order XXXIX Rule 1 and 2 of the CPC is dismissed.</b></p>', '0356f1e6e874cbb5a72cf6fcfd1d07ee.JPG', 'ceff9d64f732fc83dea45eebe9ff1f56.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-09', 1, '', '', '2022-04-08 18:43:25', '2022-04-09 07:24:53'),
(1540, 'crTLaxchvf68NwyW37uOTs6WY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Specific performance. When the contract itself suffers from some defect which makes the contract invalid or unenforceable, the Court can not make a contract for the plaintiff. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Satish Kumar Vs Karan Singh and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 7385 of 2013 decided on 21 January 2016.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.Y Eqbal and Justice Arun Mishra.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The plaintiff’s case in the plaint is that a decision was\r\ntaken by the Delhi Development Authority for allotment of a\r\nplot of land measuring 400 Sq.yds. in favour of the defendantrespondent. It was pleaded that in the year 1995 the\r\ndefendant had desired to sell his right in the said\r\nrecommendation letter which was to be allotted by the DDA in favour of the defendant. It was further pleaded that the\r\ndefendant agreed to sell his right in the aforesaid\r\nrecommendation letter and the plot to be allotted at a price of\r\nRs.4,60,000/-.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Curiously enough although the total sale consideration\r\nfixed was Rs. 4,60,000/- but the suit was valued at\r\nRs.6,77,262.75p. on the basis of the value fixed by the DDA in\r\nrespect of the plot in question.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n6. During the pendency of the suit in the trial court the\r\noriginal defendant who was an old person died and his legal\r\nrepresentative was substituted. The original defendant as also\r\nthe legal representative contested the suit denying and\r\ndisputing the alleged receipt-cum-agreement and stated that\r\nno decree for specific performance can be passed. The trial\r\ncourt held that the receipt-cum-agreement is a legal and valid\r\nagreement to sell and shall be enforced by passing a decree for\r\nspecific performance. The High Court on the basis of evidence\r\nadduced by the parties affirmed the finding recorded by the\r\ntrial court.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Prima facie, we are of the view that both the trial court\r\nand the High Court have completely failed to consider the\r\nprovisions of Specific Relief Act and the principles laid down <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by this Court in catena of decisions as to the requirement of\r\nlaw for passing a decree for specific performance.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>8. It is well settled that the jurisdiction to order specific\r\nperformance of contract is based on the existence of a valid\r\nand enforceable contract. Where a valid and enforceable\r\ncontract has not been made, the Court will not make a\r\ncontract for them. Specific performance will not be ordered if\r\nthe contract itself suffers from some defect which makes the\r\ncontract invalid or unenforceable. The discretion of the Court\r\nwill not be there even though the contract is otherwise valid\r\nand enforceable.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. On the basis of these admitted facts the Trial Court\r\nerroneously held that the receipt-cum-agreement is an\r\nenforceable contract and on that finding decreed the suit\r\nwhich was affirmed by the High Court.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. It is interesting to note that the High Court has noticed\r\nthe fact mentioned in para 24 of trial court judgment that\r\nduring the pendency of the lis DDA allotted the plot in\r\nquestion in favour of the deceased father of the defendant\r\n(original plaintiff) by executing a lease deed putting a condition\r\nthat the plot in question will remain non-transferable for a\r\nperiod of ten years. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. In spite of the aforesaid fact noticed by the High Court,\r\nthat the land so allotted to the defendant- is not transferable <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for a period of 10 years, the High Court failed to hold that a\r\ndecree for specific performance cannot be passed.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>15. We are sorry to hold that both the Trial Court and the\r\nHigh Court have completely misconstrued the facts of the\r\ncase and misunderstood the law laid down by this Court in\r\nthe matter of exercising discretionary power for granting a\r\ndecree for specific performance.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>16. After giving our anxious consideration to the matter, we\r\nare of the view that the impugned order passed by the trial\r\ncourt and affirmed by the High Court cannot be sustained in\r\nlaw inasmuch as no decree for specific performance can be\r\npassed on the basis of the alleged receipt-cum-agreement. We\r\ntherefore, allow this appeal and set aside the judgments\r\npassed by the Trial Court and the High Court.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">17. Consequently, we direct the appellant to refund a sum of\r\nRs.4,30,000/- (Rupees Four Lakhs Thirty Thousand) which\r\nwas paid by the respondents to the appellant together with\r\ninterest @ 6% per annum from the date of such receipt within </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">two months from today. Any amount deposited by the\r\nrespondents in the High Court shall be withdrawn by them.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c1b2e4d175b2f88d9142487b2c262420.JPG', '5ff849eb2ca6ae067f45e7a46de5ce42.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-09', 1, '', '', '2022-04-08 19:00:27', '2022-04-09 13:41:29'),
(1541, 'qCswhfqP6c3P35rYuG5W3G0Qq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Party who enjoys interim order is bound to lose such benefit when the case goes against him. Ad hoc payment made by employer pursuant interim order can’t treated as wages under Section 2(s) of the Payment of Gratuity Act, 1972. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chairman and Managing Director Fertilizer Corporation of India Ltd and another Vs Rajesh Chandra Shrivastava and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2260 of 2022 decided on 7 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Gupta and Justice V. Ramasubramanian.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. The common question that arises for consideration in this batch of appeals, is as to whether an ad hoc payment made to the workers pursuant to the interim orders passed by this Court in a previous round of litigation could form part of “wages” within the meaning of the expression under Section 2(s) of the Payment of Gratuity Act, 1972 (hereinafter referred to as  the  “Act”), for the purpose of calculating gratuity.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The scales of pay of the employees of public sector undertakings were revised w.e.f. 01.01.1992. When the benefit of such revision was not made available to the employees of Fertiliser Corporation of India Limited and Hindustan Fertiliser Corporation Limited, their employees moved writ petitions in various High Courts, in the year 1996. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. At the instance of the Union of India, the writ petitions pending on the file of various High Courts were transferred to this Court. By an interim order dated 18.08.2000, this Court directed an ad hoc monthly payment   of   Rs.1500/­,   Rs.1000/­,   Rs.750/­   and   Rs.500/­, respectively to four different categories of employees, as an interim measure, subject to the final outcome of the writ petitions which stood transferred to this Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. In the year 2002, the Government of India ordered the closure of the fertiliser units of these public sector undertakings and introduced a Voluntary Separation Scheme (for short “the Scheme”). According to the Management of these companies, 5675 out of 5712 employees of Fertiliser Corporation opted to go out under the Scheme. Due to this development, the writ petitions which got transferred to this Court were eventually dismissed by a final order dated 25.04.2003. In the said final order, this Court recorded that economic viability or the financial capacity of the employer is an important factor which cannot be ignored while fixing the wage structure and that the materials on record clearly revealed that both these companies were suffering heavy losses for several years. It was also recorded in the final order passed by this Court that the interim relief was purely an  ad hoc  measure.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Once the curtain was finally drawn on their very employment, the   employees   started   filing   applications   before   the   Controlling Authority under the Act. In their applications before the Controlling Authority, the employees included the ad hoc payment made pursuant to the interim orders of this Court, as part of the wages. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. The Controlling Authority started passing orders in the applications filed by the employees individually, treating the  ad hoc payment as part of the wages. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. Since the orders of the Controlling Authority were contrary to the interim orders as well as the final orders passed by this Court, the Management of these companies moved an application before this Court for clarification/modification of the order. But by an order dated 01.05.2008, this Court disposed of the interim application by just observing  that when the final order is passed, the interim order automatically comes to an end.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. In so far as the case of Shri Kashi Prasad Tripathi is concerned, the Management filed a writ petition in W.P.No.798 of 2009 which came to be allowed by a learned Single Judge of the Allahabad High Court, based upon a judgment of a Division Bench of the Patna High Court.  Shri  Kashi  Prasad  Tripathi, unsuccessfully challenged the orders of the learned Single Judge before a Division Bench. Therefore, Shri Kashi Prasad Tripathi filed a special leave petition in SLP(C) No.972 of 2014 </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. Following the order passed by this Court in C.A.No.4258 of 2015 on 05.05.2015, in the case of Shri Kashi Prasad Tripathi, the High Court of Allahabad dismissed all the writ petitions filed in respect of the other employees. Therefore, challenging such orders in the case of other employees, the Management of the Fertiliser Corporation has come up with a batch of 98 appeals. The Hindustan Fertiliser Corporation has come up with one appeal that arises out of similar judgment of the Calcutta High Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. Therefore, the short question that arises for consideration is as to whether the ad hoc monthly payment made by the Management pursuant to the interim orders passed by this Court on 18.08.2000, is liable to be treated as part of the wages within the sweep of the said expression under Section 2(s) of the Act, especially in the light of the order passed by this Court in the case of Shri Kashi Prasad Tripathi. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. We have already extracted the order passed by this Court on 05.05.2015 in C.A.No.4258 of 2015 in the case of Shri Kashi Prasad Tripathi. The said order does not deal with this question. The said order has gone on the basis that the computation of the quantum of gratuity is exclusively within the domain of the authorities under the statute and that the High Court is not competent to interfere with the same. Therefore, the order passed in the case of Kashi Prasad Tripathi cannot be taken to have laid down any law to the effect that the ad hoc  payment will form part of wages. The respondents, therefore, cannot really take advantage of the order passed in the case of Kashi Prasad Tripathi, merely on the ground that the very same question of law was raised by the Management in the civil appeal and thereafter in the  petition for review and curative petition. At times, this Court refuses to go into the questions of law, when a single individual armed with an order in his favour from the High Court is pitted against the State. Whenever the State or instrumentalities of State come up with  appeals  challenging small benefits granted to individual litigants, this Court  applies the test of  proportionality to see whether the quantum of  benefits granted to the individual concerned, justifies the examination of the question of law, at the cost of that little man from a far off place. The refusal of this Court to go into the question of law in such cases, cannot be treated as tantamounting to answering the question of law in a particular manner. Therefore, dehors order of this Court in Kashi Prasad Tripathi, we are obliged to deal with the question of law that arises in this batch.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17. The definition of the expression is in 3 parts, the first part indicating the meaning of the expression, the second part indicating what is included therein and the third part indicating what is not included therein. In the first part of the definition, the emphasis is on what is earned by the employee “in accordance with the terms and conditions of employment” . </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. Irrespective of whether what was earned has been paid or remained payable, the same is included in the definition, provided it is in accordance with the terms and conditions of his employment. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. Keeping in mind the above definition, if we go back to historical facts, it would be clear that the employees initiated the first round of litigation before various High Courts, for the grant of the benefit of revision of pay scales, way back in the year 1996, on the ground that the employees of other PSUs have been granted revision on par with the Government servants. It will thus be clear that what was claimed in  the first round of litigation was not what was payable in accordance with the terms and conditions of employment. Therefore, this Court was clear in its interim order dated 18.08.2000 as to how the ad hoc payment ordered there under should be treated. Even in the final order, this Court made it clear that what was paid was only ad hoc. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. It is a fundamental principle of law that a party who is in enjoyment of an interim order, is bound to lose the benefit of such interim order when the ultimate outcome of the case goes against him. Merely because of the fortuitous circumstance of the Voluntary Separation Scheme coming into effect before the transferred cases were finally dismissed by this Court by an order dated 25.04.2003, creating an illusion as though the last drawn pay included this  ad hoc  payment, it is not possible to go against the fundamental rule that the benefits of an interim order would automatically go when the party who secured it, failed in the final stage.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22. In view of the above, the appeals are allowed and the orders of the High Court, the Controlling Authority and the Appellate Authority under the Act, holding that the ad hoc payment made pursuant to the interim orders by this Court will form part of the wages, are set aside. However, in view of the efflux of time and taking into account the fact that few employees are now no more, we direct the Management not to effect any recovery, if payment has already been made to any of the respondents or their families. There will be no order as to costs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0b6d12e626466cd907e44b31fd981930.png', '3b2238176bbcd0e088d77e5c30978266.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-09', 1, '', '', '2022-04-08 20:10:20', '2022-04-09 09:29:55');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1542, '1nA5DLv52sIzAXLTE6ac2DpBS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Child adopted by a widow can not claim property of widow\'s husband since the principle of relation back does not apply in view of Section 12 of the  Hindu Adoptions and Maintenance Act, 1956. Bombay High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rajesh and others vs Parwatibal and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Second Appeal 515 of 2021 decided on 7 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Shrikant D. Kulkarni.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. It is necessary to have a glance on few facts in order to throw\r\nlight on the dispute. The appellants have purchased the suit property from\r\nrespondent No. 2/adopted son of Kausalyabai (original plaintiff No.1 since\r\ndeceased) vide three registered sale deeds dated 02.06.1995. The\r\nadoptive mother ( Kausalyabai) and sister Parwatibai had filed a suit on\r\n17.08.2019 for declaration of ownership, recovery of possession with\r\nfurther declaration that sale deeds executed by defendant No.1 (adopted\r\nson) in favour of the appellants are not binding their shares.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. During pendency of the suit, original plaintiff No. 1/ Kausalyabai\r\ndied and suit was contested by plaintiff No.2/Parwatibai. The trial court\r\nwas pleased to decree the suit partly as under :-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>01. Suit of the plaintiff is partly decreed as follows.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>02. Plaintiff No. 2 is declared as owner of suit property\r\nto the extent of her half share. Defendant No.1 is\r\ndeclared as owner of suit property to the extent of\r\nhis remaining half share.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>03. Sale Deed bearing No. 1418/1995, 1419/1995,\r\n1420/1995 all dated 02.06.1995 executed by\r\ndefendant No.1 in favour of defendants No. 2 to 4 in\r\nrespect of suit property Gut No. 95 ad measuring\r\ntotal area 8 Hector 95 Are situated at village <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Pimpalgaon Tong, Tq. & Dist. Parbhani (more\r\nparticular described in claim clause of plaint) is\r\ndeclared as null and void to the extent of half share\r\nof plaintiff No. 2 and not binding on the plaintiff No. 2\r\nParwatabai.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>04. Plaintiff No. 2 is entitled to recover her half share in\r\nthe suit property.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>05. Writ of precept be send to District Collector,\r\nParbhani for its compliance according to law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>06. Parties to bear their own costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Feeling aggrieved by the impugned Judgment and decree\r\npassed by the learned 4th Jt. Civil Judge Junior Division, Parbhani, original\r\nplaintiff No. 2/Parvatibai Bhimrao Bende has filed Regular Civil Appeal No.\r\n149/2014. The said appeal came to be allowed as under :-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1) The appeal is allowed with costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2) The cross-objection filed by defendants/respondents\r\nis dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3) The judgment and decree passed by 4th Jt. Civil\r\nJudge Junior Division, Parbhani in R.C.S. No.\r\n192/2009, dt. 30/09/2014 is hereby set aside.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4) The suit is decreed. The appellant is declared as\r\nowner of suit property and entitled for recovery of\r\nsuit property from defendant Nos. 2 to 4. Defendant\r\nNos. 2 to 4 shall evict within one year.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5) Sale deeds bearing registration No. 1418/1995 to\r\n1420/1995 dt.02/06/1995 Exh. 30 to Exh. 32 are\r\nillegal and not binding on the plaintiff. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. It is revealed during the course of argument and while perusing\r\nthe impugned Judgment and decree passed by the appellate court as well\r\nas the trial court that both the Courts below have committed an error in the\r\neye of law while determining the shares. So far as the question of adoption\r\nof defendant No. 1/Shivaji S/o Wamanrao alleged adopted son of\r\nSopanrao Tong is concerned, both the Courts below have accepted and\r\nheld that defendant No.1 is adoptive son of late plaintiff No. 1/Kausalyabai.\r\nIt is therefore, clear that both the Courts below have recorded the\r\nconcurrent findings in respect of adoption of defendant No.1. There is no\r\nneed to go through that aspect in view of concurrent findings recorded by\r\nthe Courts below.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Following are the substantial questions of law framed in this\r\nsecond appeal after hearing learned counsel for both the sides.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Whether the principle of relation back is applicable to\r\nthe present case in view of section 12 of the Hindu Adoptions\r\nand Maintenance Act, 1956 ?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) What would be the share of original plaintiff No.2-\r\nParwatibai/daughter in the suit property ?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iii) Whether the sale deeds executed by original defendant No.1/\r\nShivajirao Wamanrao adopted son of plaintiff No.1 are\r\nbinding upon the original plaintiff No. 2 ? If yes, to what\r\nextent and share ?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iv) Whether the Courts below if any committed an error in\r\ndetermining the share of the parties in view section 8 and 15 of\r\nthe Hindu Succession Act, 1956 ?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(v) Whether the intervention is necessary ?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. The claim in the original suit put forth by the plaintiffs was for\r\ndeclaration of ownership and recovery of possession of land bearing Gut\r\nNo. 95 admeasuring 8 Hectares 59 R situated at village Pimpalgaon Tong.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Following 2.80R land has been purchased by the\r\nappellants/defendant Nos. 2 to 4 by three different sale deeds from\r\noriginal defendant No.1/Shivaji.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. Mr Prakashsing B. Patil, learned counsel for the appellants\r\nvehemently argued that though defendant No.1/ Shivaji was adopted in\r\nthe year 1973, for all the purposes, he shall be deemed to be a child of his\r\nadoptive parents. He submitted that all the ties of the child in the natural\r\nfamily will stand terminated from the date of adoption, except the ties of\r\nblood for the purpose of marriage. He further submitted that all the ties of\r\nchild would come into existence in the adoptive family from the date of\r\nadoption. The adopted child is deemed to be the child of adopter for all the\r\npurposes and his position for all intents and purposes is that of a natural\r\nborn son. He has the same right, privilege and same obligation in the\r\nadoptive family.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. Mr Prakashsing Patil, learned counsel for the appellants has\r\nplaced his reliance in case of Hiralal Vs. Board of Revenue reported in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">AIR(RAJ)-2001-2001-0-318. By placing reliance on the said decision,\r\nMr Prakashsing Patil, learned counsel for the appellants submitted that the\r\nmoment, the widow of a co-parcener adopts a son, the adopted son\r\nbecomes a co-parcener with surviving co-parceners of the adoptive father\r\nand consequently, the same interest which his adoptive father would have\r\nin the property had he been living. The child adopted by the widow of the\r\nco-parcener became the child of deceased co-parcener from the date of\r\ndeath of the co-parcener. He therefore, vehemently submitted that\r\nadopted son gets equal share like her adopted mother.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16. Per contra, Mr Shahaji B. Ghatol Patil, learned counsel for\r\nrespondent No.1/original plaintiff submitted that even if for the sake of\r\nargument accepted that Shivaji/original defendant is adopted son of\r\nKausalyabai/original plaintiff No.1. He may not get equal share. He\r\nsubmitted that husband of plaintiff No.1 (Kausalyabai) namely, Sopanrao\r\ndied in the year 1965 left behind plaintiff No.1 as widow and plaintiff No. 2\r\nas daughter. Both of them got one half share each in the suit property left\r\nbehind by Sopanrao. He submitted that Shivaji was allegedly adopted by\r\nKausalyabai in the year 1973. He submitted that the succession opens in\r\nthe year 1965 soon after death of Sopanrao who happened to be the\r\nfather of plaintiff No.2 and husband of plaintiff No.1. The adopted son does\r\nnot get any share even after his so-called adoption in the year 1973. At the\r\nmost, he may get share after death of Kausalyabai/original plaintiff No.1 in\r\nher one half share. In that case, Parwatibai being daughter and Shivaji\r\nbeing adopted son would get equal share in the share of Kausalyabai. He\r\nsubmitted that theory of relation back is not applicable to this case since </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">so-called adoption has taken place in the year 1973.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. Mr Shahaji B. Ghatol Patil, learned counsel for the original\r\nplaintiff submitted that, the sale deeds executed by Shivaji (adopted son)\r\nare not binding on the plaintiff and submitted that those sale deeds need\r\nto be declared not binding on plaintiff.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. It is undisputed position that the husband of original plaintiff\r\nNo.1/Sopanrao died in the year 1965 leaving behind Kausalyabai as a\r\nwidow/plaintiff No.1 and Parwatibai being a daughter (plaintiff No.2). As\r\nper the findings recorded by both the Courts below, Shivaji was adopted\r\nby original plaintiff No.1 in the year 1973 after the Hindu Adoptions and\r\nMaintenance Act, 1956 came into force. In that background, I have to see\r\nthe provisions of the said Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. Section 8 of the said Act provides that a female Hindu, who is of\r\nsound mind and is not a minor, has the capacity to take a son or daughter\r\nin adoption. If she has a husband living, the consent of her husband is\r\nnecessary for such adoption.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. Having regard to section 8 of the said Act, plaintiff <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">No.1/Kausalyabai had legal right to adopt a son or daughter and\r\naccordingly, she has adopted son Shivaji in the year 1973 by way of\r\nadoption deed. Her husband was not alive at the time of adoption. Hence,\r\nquestion of consent does not arise.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. It specifies that an adopted child will sever all ties with the\r\nfamily of his or her birth on and from the date of adoption. The second\r\nproviso of Section 12 of the Hindu Adoptions and Maintenance Act, 1956 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">stipulates that any property which has vested in the adopted child before\r\nthe adoption shall continue to vest with him subject to the obligations, if\r\nany. The second proviso allows the property vested in the adopted child\r\nbefore the adoption to continue to vest in the adopted child subject to the\r\nobligations, if any, attaching to the ownership of the property including the\r\nobligation to maintain relatives in the family on his or her birth.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>24. The question is whether principle of relation back is applicable\r\nto the present case in view of section 12 of the Hindu Adoptions and\r\nMaintenance Act, 1956.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. In case of Banabai (supra), the principle of relation back as a\r\nresult of the adoption has been done away with by section 12 of the Hindu\r\nAdoptions and Maintenance Act, 1956. Under the old Hindu law the\r\nadoption had the effect of relating the adoption back to the date of death of\r\nthe father. The adopted son was deemed to be in existence at the time\r\nwhen the father died. That fiction of relation back as a result of adoption is\r\nno more available in view of Section 12 of said Act. Having regard to this\r\nlegal position, I am unable to accept the argument advanced by Mr\r\nPakashsing Patil, learned counsel for the appellants. After coming into\r\nforce of Hindu Adoptions and Maintenance Act, 1956, the child adopted by\r\nthe widow of the co-parcener, does not get the status of the child of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">deceased co-parcener from the date of death of co-parcener. As such,\r\nadopted son/original defendant No.1 cannot claim share in the suit\r\nproperty, by stepping into the shoes of his late father who died long before\r\nin the year 1965. Therefore, I have recorded my finding against question\r\nNo.1 in the negative.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. It is an admitted position that the husband of original plaintiff\r\nNo.1/Kausalyabai died in the year 1965 which is much before the adoption\r\nof son Shivaji. Original plaintiff No.1/Kausalyabai has adopted Shivaji vide\r\nadoption deed dated 24.03.1973 as per the findings recorded by both the\r\nCourts below. Therefore, it is clear that adopted son Shivaji was not in\r\npicture when the husband of original plaintiff No.1 Kausalyabai died in the\r\nyear 1965. The Husband of plaintiff No.1 Sopanrao died intestate in the\r\nyear 1965. The succession opens for the first time in the year 1965.\r\nAccording to Section 8 of the Hindu Succession Act, 1956, plaintiff No.1\r\nbeing widow and plaintiff No.2 being daughter would get one half share\r\neach in the suit property left behind by Sopanrao.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. As discussed herein before, husband of plaintiff No.1 and father\r\nof plaintiff No.2, namely, Sopanrao died in the year 1965. The succession\r\nopens soon after death of Sopanrao in the year 1965. Plaintiff No.1/\r\nKausalyabai (widow) and plaintiff No. 2 Parwatibai (daughter) got one half\r\nshare in the property left behind by Sopanrao. Shivaji has been taken in\r\nadoption though disputed on 24.03.1973. Plaintiff No.1/ Kausalyabai died\r\nduring pendency of the suit in the year 2013. After death of original plaintiff\r\nNo.1/Kausalyabai, her ½ share would devolve upon her daughter <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Parwatibai and adopted son Shivaji. In view of section 15 of the Hindu\r\nSuccession Act, 1956. Having considered this legal position, plaintiff No.\r\n2/daughter Parwatibai would get her share of ½ from the share of her\r\nmother which comes to ¼ and total share ¾ (½ + ¼ ) whereas adopted\r\nson Shivaji would get ¼ share in the property.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>29. It is evident from the record that adopted son Shivaji has sold in\r\nall 2 hectare and 80 R land out of Gut No. 95 by 3 different sale deeds as\r\nshown in the chart para No. 13.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>30. The original plaintiff No.1/Kausalyabai died in the year 2013.\r\nAfter demise of original plaintiff No.1/Kausalyabai, her share would\r\ndevolve between her daughter Parwatibai/original plaintiff No. 2 and\r\nadopted son Shivaji/original defendant No.1. The adopted son Shivaji has\r\nsold the above said suit property in the year 1995 when he has no title and\r\nlegal interest in the suit property. Plaintiff No.1 was alive in the year 1995\r\nwhen adopted son has sold in all 2 hectare and 80 R piece of land out of\r\nGut No. 95. At the most, the adopted son Shivaji can be said to have\r\nacquired the legal right after demise of her adopted mother/Kausalyabai\r\nin the year 2013.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>31. Having regard to the above legal position and in view of section\r\n8 and section 14 and 15 of the Hindu Succession Act, 1956, the sale\r\ndeeds executed by original defendant No.1 Shivaji (adopted son) are\r\ncertainly not binding upon original plaintiff No. 2. In view of passage of\r\ntime and after death of Kausalyabai, adopted son Shivaji has acquired the\r\nlegal right in the year 2013, during the pendency of the suit.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32. In view of the above discussion, original plaintiff\r\nNo.2/Parwatibai would get ¾ share in the suit property and adopted son\r\nShivaji would get ¼ share in the suit property. The sale deeds executed\r\nby Shivaji (adopted son) in favour of the appellants are certainly not\r\nbinding on original plaintiff No. 2 to the extent of her ¾ share. The sale\r\ndeeds would be binding upon adopted son Shivaji to the extent of his ¼\r\nshare.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>33. Having regard to the above reasons and discussion, it is very\r\nmuch clear that both the Courts below have committed an error in\r\ndetermining the shares of the parties in view of section 15 of the Hindu\r\nSuccession Act. As such, intervention in the decree passed by the First\r\nAppellate Court and trial court is required so as to correct the shares of the\r\nparties. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">34. </span></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ORDER</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(A) The second appeal stands disposed of by modifying the\r\n decree passed by both the Courts below as under :-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(i) The suit is partly decreed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(ii) Plaintiff No.2/Parwatibai is hereby declared as an owner of the\r\nsuit property to the extent of her ¾ share whereas defendant\r\nNo.1/Shivaji is declared as an owner of the suit property to the\r\nextent of his ¼ share.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(iii) The sale deeds bearing No. 1418/1995, 1419/1995, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1420/1995 all dated 02.06.1995 in respect of the suit `\r\nproperty Gut No.95 executed by original defendant No.1 Shivaji\r\nare hereby declared null and void to the extent of ¾ share of\r\nplaintiff No.2/Parwatibai and not binding on her.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iv) The sale deeds referred above executed by the defendant\r\nNo.1/Shivaji in favour of appellants/ original defendant No. 2 to\r\n4 in respect of suit property shall be binding to the extent of\r\nhis ¼ share.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(v) Plaintiff No.2/Parwatibai shall be entitled to recover possession\r\nof her ¾ share out of suit property.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(vi) The decree be prepared accordingly in above terms.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(vii) No order as to costs.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(viii) The second appeal is disposed of accordingly.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ix) In view of disposal of second appeal, civil application also\r\nstands disposed of. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7a6a049de40e8da7dfea6e29ea725f23.JPG', 'af55554bd441cf7d4f3f2aff7a7f4fd8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-09', 1, '', '', '2022-04-08 21:07:33', '2022-04-09 11:21:06'),
(1560, 'uwKnaSsOui1QYaTRbdjyNBxh8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Employees of unaided private school are entitled to the same benefits given to employees of Government run schools. Schools cannot plead financial hardship. Delhi High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Omita Mago and others Vs Ahlcon Public School and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WP (C) 4979 of 2021 decided on 24 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V. Kameshwar Rao.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. It is the submission of Mr. Ashok Aggarwal, learned counsel for the\r\npetitioners that the petitioners have not been paid complete salary w.e.f.\r\nJune 2020 till date. According to him, the same has been paid with\r\ndeductions. He also states that the petitioners are also not being paid salary,\r\nallowances and other benefits including Dearness Allowance (‘DA’ for\r\nshort) in terms of the recommendations made by the 7th Central Pay\r\nCommission (‘7th CPC’, for short) w.e.f. January 01, 2016 as notified by the\r\nGovt. of NCT of Delhi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The respondent No.1 / School has filed a counter affidavit wherein a\r\nstand has been taken that the School is being run on a land allotted to the\r\nSociety by the Delhi Development Authority (‘DDA’ for short) as per the\r\nindustrial rates with a clear stipulation that it will admit 25% children\r\nbelonging to Economically Weaker Section (‘EWS’ for short) and will\r\nprovide Freeship in Tuition fee to such children and further the respondent\r\nNo.1 / School will take prior permission from the Director of Education\r\nbefore increasing the fee.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. It is also stated that under Section 10 of the Delhi School Education <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Act, 1973 (‘DSE Act’, for short), the scales of pay and prescribed benefits of\r\nthe employees of a recognised unaided school shall not be less than the\r\namount that is being allowed to the corresponding positions in the Schools\r\nof the Directorate of Education. As per Section 17(3) of the Act, the\r\nManager of a recognized unaided private school shall file with the Director\r\nof Education, a full statement of fees to be levied during the ensuing\r\nacademic session and no school shall charge, during that academic session,\r\nany fee in excess thereof without the prior approval of the Director.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. According to the learned counsel for the respondent No.1, the fee is\r\nthe only source of revenue for the respondent No.1 and a compatible fee\r\nstructure conducive to meeting the remuneration and the service benefits to\r\nthe staff, with infrastructural facilities, with all modern learning tools and\r\nprovisions for future growth is the only requisite. The respondent No.1 has\r\nall along extended the pay scales to its staff right till the 6\r\nth CPC. The 7th\r\nCPC pay scales were introduced with effect from January 01, 2016, the\r\norders for which were issued subsequently at a much later date. Following\r\nthe past practice and in order to follow the provisions, the respondent No.1\r\nhad duly worked out the budget estimates for the year 2016-17 and in a\r\nmeeting held in the month of November 2015, the said estimates were\r\napproved by the Management Committee of the respondent No.1 / School\r\nwith the due representation of the Director of Education’s Nominees with a\r\n10% fee hike vis-a-vis the 2015-16 fee structure. The 7\r\nth CPC pay scales\r\nwere not a part of the consideration at that time as it was still in the pipeline.\r\nThe 10% hike was just to cover the normal inflation and to take care of the\r\nannual increments, two D.A. instalments and usual overall increase. The\r\nDirector of Education for the reasons best known to them invited the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">proposals afresh in April, 2016 with the observations that the respondent\r\nNo.1 had not taken the prior approval of the Director before raising the fee.\r\nThe respondent No.1 informed the Director that since the decision was\r\narrived at in the due presence of his nominees, the condition of prior\r\napproval stands fulfilled. The Director was further informed that the\r\nManagement Committee of the respondent No.1 with the due representation\r\nof the Director of Education’s nominee has all along been finalizing the\r\nbudget estimates for the ensuing academic year including the fee structure.\r\nThe Director of Education has also from time to time issued guidelines and\r\ninstructions to its nominees to ensure that the provisions governing the\r\nfinalization of the estimates are duly fulfilled while approving the same.\r\nFurther, the Director has also issued instructions to its nominees to\r\nimmediately bring to notice, any deviation in this regard, and thus it could\r\neasily be arrived at the concurrence of the nominee in itself carries the prior\r\napproval condition. The Director has never in the past made such an\r\nobservation. That apart, the respondent No.1 also submitted the proposals\r\nafresh. After a prolonged exercise and inspecting those very documents\r\nwhich were already in the possession of the Directorate in the form of part\r\nof a return or a singular document, reached to a conclusion that the\r\nrespondent No.1 has enough surplus funds and there was no need to increase\r\nthe fee. The Directorate while arriving at the surplus figure had not taken\r\ninto consideration the funds provided for the terminal benefits-like Gratuity\r\netc. which as per the statutory provisions cannot be a part of the surplus. In\r\nbetween the 7\r\nth CPC pay scales were introduced and the Director issued a\r\ndetailed order on October 17, 2017 inter alia permitting the schools to\r\nincrease the fee to a certain percentage without seeking further approval of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Director and in case of any increase beyond that percentage, to refer the\r\ncase to the Director. The Director in the said order himself admits an\r\nincrease of 25% in fee due to implementation of 7\r\nth CPC. Later on, the\r\nDirector withdrew the order for the reasons best known to him stating that\r\nthis Court had issued such orders. The fact was otherwise, inasmuch as the\r\norder was withdrawn on the Director of Education’s own accord. The\r\nDirector thereafter invited proposals for the subsequent years much after the\r\nbeginning of each academic year and again called afresh a number of\r\ndocuments and papers which already stood examined and which were\r\nalready with them while deciding the 2016-17 and 2017-18 fee structure.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. That apart, it is also stated that because of spread of the COVID-19\r\npandemic and the resultant lock down, the position further worsened. The\r\nrespondent No.1 has been only allowed to charge tuition fee during this\r\nperiod, which was not sufficient enough to meet even the salary and terminal\r\nexpenses. The only alternative left under the circumstances was to\r\nrationalize the expenses and the move to defer part of the D.A. Incidentally,\r\neven the Central Government in view of the crisis arising out of COVID-19\r\nhad frozen the D.A. instalments of January 2020, July 2020 and January\r\n2021 till July 2021 and has also issued directions that the same should be\r\nrestored prospectively only. The respondent No.1 has all along been sharing\r\nwith the staff the financial crunch arising out of the lockdown imposed and\r\nthe subsequent orders issued by the Directorate to only charge tuition fee. As\r\nand when the finances of the respondent No.1 improve, it will review the\r\nposition and start restoring the deferred amount of D.A. which again could\r\nbe possible only if the respondent No.1 was allowed to charge the full fee.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8. It is also stated that with the improving position, the respondent No.1 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">has started remitting the full salaries of the staff w.e.f. August 2021 as per\r\ntheir entitlement. The finances of the respondent No.1 do not allow the\r\nimplementation of the 7th CPC and the sole reason for the same is that the\r\nDirector of Education has not taken any decision on the fee proposal for the\r\nlast five years.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. The issue stands settled by the judgment of the Full Bench in the case\r\nof Guru Harkishan Public School v. Director of Education and Ors.,\r\n(2015) 221 DLT 448 wherein this Court, while examining applicability of\r\nRule 121 of the Delhi School Education Rules, 1973, though not in the\r\ncontext of Section 10 of the DSE Act, has in detail referred to the judgment\r\nof the Supreme Court in Frank Anthony Public School Employees’\r\nAssociation v. Union of India (UOI) and Ors., (1986) 4 SCC 707, and\r\nfinally held that the pay and allowances of the employees of unaided\r\nminority Schools cannot be less than those of the employees of the\r\nGovernment run Schools. Hence, on that analogy, the petitioners herein,\r\nwho are employees of an unaided private school are entitled to the benefits\r\nas is being given to the employees of the government run schools.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Having said that the only plea of the learned counsel for the\r\nrespondent No.1 / School is financial hardship. The said submission is also\r\nunsustainable. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. In view of the above, this writ petition need to be allowed and the\r\nrespondent No.1 / School is directed to re-fix the salaries and other\r\nemoluments of the petitioners under 7th CPC in accordance with the rules\r\nand pay the arrears to the petitioners within a period of three months from\r\ntoday. It is made clear that the arrears shall not carry any interest, if the\r\namount is paid within a period of three months. Any delay beyond the\r\nperiod of three months, shall entail an interest @ 6% per annum.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. That apart, as regards the prayer of the petitioners that they have been\r\npaid salary with deduction from June 2020 till August 2021 is concerned,\r\nthe unpaid salary shall also be paid, if not already paid, within the aforesaid\r\nperiod. Any delay beyond a period of three months, shall also entail an\r\ninterest @ 6% per annum.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. With the above, the petition is disposed of. No costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f336b9b201d8a72e7189cf8b8166862d.png', '65157f194d77d7e4c4502bbdb1327696.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-13', 1, '', '', '2022-04-13 18:33:04', '2022-04-13 12:30:56');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1544, 'eJRnoBlUt7Uc9PqpjhvDrfT7T', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Plaintiff in a suit cannot array defendant as represented by GPA holder with address of the said GPA holder without showing address of the defendant. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>Renuka Anand Vs Ramanand Ramakrishnasa Basawa and others.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>Writ Petition 103766 of 2018 decided on 31 March 2022.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>Justice Suraj Govindaraj.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><br></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>2. The grievance of the petitioner is that a compromise petition was entered into in O.S. No.246/2014 pending on the file of the Principal Senior Civil Judge at Hubballi in the Lok-Adalat proceedings by a person claiming to be the power of attorney holder of the petitioner and as such the petitioner’s interest in the suit schedule property therein has  been  compromised without the knowledge of the petitioner and therefore a fraud has been committed on the petitioner by resorting to an abuse of the process of the Court and filing of a compromise petition in the Lok-Adalat.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><br></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>3. Sri.Mahesh Wodeyar, learned counsel for the petitioner submits that the suit in O.S. No.246/2014 had been filed by respondent No.2 herein against the petitioner represented by the power of attorney  holder seeking for specific performance of an alleged agreement of sale dated 25.04.2014 which is alleged to have been executed by the alleged power of attorney holder of the petitioner.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><br></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>4. In the said suit upon notice being ordered without service of notice on the petitioner, respondent No.1 who claims to be the power of attorney holder of the petitioner had entered appearance and filed a compromise petition even before return of  notice. The compromise petition having been filed before the Court, the matter was referred to the Lok-Adalat and in that Lok-Adalat a compromise was recorded by the conciliators and compromise decree was directed to be passed.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><br></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>5. Sri.Mahesh Wodeyar submits that once earlier a power of attorney which had been issued in favour of the father of respondent No.1 as regards the said properties had been cancelled by a public notice  dated 15.12.2012 published in the newspaper Sanjevani on 16th December, 2012.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><br></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>6. The petitioner not having executed any power of attorney in favour of respondent No.1, the power of attorney claimed by respondent No.1 is  fabricated one and as such neither the agreement of sale could be executed by respondent No.1 in favour of respondent No.2 nor could a compromise be entered into by the respondent No.1 with respondent No.2 for the Lok-Adalat to record. In the above  background, he submits that the petition needs to be allowed and the compromise recorded by the Lok-Adalat be set aside as also the compromise decree drawn up in pursuance thereto.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><br></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>7. Per contra, Sri.Padmanabha Mahale, learned Senior counsel appearing for the respondents would submit that respondent No.1 is the power of attorney holder of the petitioner and respondent No.1 has entered  into a compromise with the knowledge and consent   of the petitioner with respondent No.2. The compromise having been filed before the Court and the Court having forwarded the matter to the Lok- Adalat the compromise is one which is filed before  the Court and as such the present petition is not maintainable since the trial Court having taken the compromise on record, only a suit challenging the compromise is maintainable.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><br></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>11. The suit in O.S. No.246/2014 had been filed for specific performance of an agreement of sale dated 25.04.2014 said to have been executed by power of attorney holder of the petitioner herein namely, respondent No.1 in favour of respondent No.2. The cause title of the said suit leads to an interesting reading inasmuch as the defendant though is named as Smt.Renuka (petitioner herein) her address is shown as resident of Keshwapur and is represented  by her GPA holder respondent No.1 with the address of respondent No.1 shown in the cause title. In the cause title, the address of the petitioner has not been shown except for her being named.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><br></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>12. Notice having been ordered on the defendant the power of attorney holder enters appearance for the defendant therein and enters into a compromise. It fails to reason as to how a party to a proceeding namely a defendant can be said to be represented by power of attorney when a person is arrayed as a  party defendant, it is for the said person who is arrayed as a defendant to appoint a power of  attorney or not. The plaintiff in a suit cannot in my considered opinion array a defendant to be represented by power of attorney showing  the address of the said power of attorney without even showing the address of the defendant.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><br></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>13. The facts of this case are even more peculiar inasmuch as the suit was filed for specific performance of an agreement dated 25.04.2014  which is stated to be executed by the very same power of attorney shown in the cause title. Thus, admittedly the defendant therein has not executed any agreement but the agreement was executed by a person claiming to be power of attorney of the defendant.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><br></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>14. The proceedings take curious turn by the power of attorney appearing in the proceedings and filing a compromise petition immediately after issuance of notice and the said compromise is referred to a Lok- Adalat.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><br></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>15. It is further surprising that the very same counsel appears in these proceedings for both  the respondents i.e. the plaintiff in O.S. No.246/2014 as also the power of attorney representing  the defendant in O.S. No.246/2014. This in no uncertain terms in my considered opinion establishes the collusion between power of attorney and plaintiff in O.S. No.246/2014.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><br></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>16. The net result of the entire proceedings and  procedure followed is that the plaintiff who was not aware of the said proceedings, a compromise decree has been passed against the petitioner who though arrayed as a party to the preceding was never served with the notice nor did the defendant contest the said the proceedings.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><br></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>17. Apart there from there is a procedural irregularity in inasmuch as the compromise petition was filed before the Court and thereafter the matter referred to Lok-Adalat for recordal of the compromise.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>18. This Court has held that such a practice of recording compromise before the Court and thereafter referring to Lok-Adalat is not contemplated in the Legal Services Authorities Act, 1987 and such compromise  if recorded  before the Lok-Adalat is required to be  set aside.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>20. This Court has also been coming across several matters relating to such compromise before the Lok- Adalat which are challenged by way of writ petitions. Hence, I also deem it fit to issue general directions in respect of such matters which are referred to Lok- Adalat and compromise recorded as under:</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>(i)<span style=\"white-space:pre\">	</span>When a compromise is filed before the Court in terms of the decision in Smt.Akkubai vs. Shri Venkatrao and Others [ILR 2014 KAR 2051] (supra) it is for the Court to record the compromise and not refer the matter to the Lok- Adalat.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>(ii)<span style=\"white-space:pre\">	</span>It is only if there is no settlement arrived at  before the Court and the parties request for the matter to be referred to Lok-Adalat to enable a settlement then in such event the parties are to  be referred to the Lok-Adalat and in the event of  a compromise being arrived at before the Lok- Adalat, the same could be recorded by the lok- Adalat.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>(iii)<span style=\"white-space:pre\">	</span>When the matter is referred to Lok-Adalat, separate order sheets would have to be opened and maintained by the said Lok-Adalat and the order sheet of the Court in the suit cannot be  used by the Lok-Adalat.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>(iv) The trial Court and or the Lok-Adalat while recording compromise is required to ascertain if the parties are present personally as also to ascertain and verify their identities by production of suitable documentary proof.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>(v) In the event of a power of attorney appearing, it would be the bounden duty of the Court or the Lok-Adalat to ascertain if the concerned party has been served with notice.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>(vi) The Court as also the Lok-Adalat would always have to be suspicious if the party were to enter appearance even before service of notice which is a red flag that there is something that is fishy in the matter. Licence, Passport Copy, Election Identity card, etc.,) are obtained as a matter of rule.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>21. ORDER</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>i. The petition is allowed.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>ii. A certiorari is issued. The compromise decree dated 26.07.2014 in O.S. No.246/2014 as recorded by the Lok-Adalat is quashed. O.S. No.246/2014 is restored to the file.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>iii. The petitioner is at liberty to contest the said suit before the trial Court.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>iv. All issues are left open including the aspect of whether power of attorney being genuine or otherwise.</b></font></p>', '3c4d652d547a194bdcd06dbd23dc8b8f.jpeg', '8cad306c69b9442118de32751567d483.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-09', 1, '', '', '2022-04-09 03:00:35', '2022-04-09 17:32:34'),
(1545, 'qZCAffwdcFDU3U8aYxQgqWYnS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Complaint u/s 138 N.I. Act filed without application to condone delay. Limitation issue raised for the first time in appeal. Appellate Court can send matter back to trial court by permitting complainant to file necessary application. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. A. Seating Partnership Firm and others Vs Nandini Modulars Proprietorship.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRP 1242 of 2021 decided on 8 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">This revision petition is filed praying this Court to set aside the judgment of the XII Additional and ACMM (SCCH-8), Bengaluru in C.C.No.12481/2017 dated 31.10.2019 convicting the petitioners herein for the offence punishable under Section 138 of the Negotiable Instruments Act (’N.I.Act’ for short) and to set aside the judgment of the LV Additional City Civil and 3 Sessions Judge, Bengaluru in Crl.A.No.2458/2019 dated 17.09.2021 remanding the case to the Trial Court.</font></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The factual matrix of the case of the respondent/complainant is that the complainant was running an industry in the name of M/s. Nandini Modulars. The accused  gave an undertaking to the complainant that he will discharge the amount of Rs.13,58,921/- within 15 days and also issued four cheques as security to the said loan amount in favour of the complainant. On presentation of those cheques, the same were dishonoured with an endorsement as ‘funds insufficient’. Hence, the legal notice was issued on 03.02.2017 calling upon the accused to make payment of the dishonoured cheques amount and the said notice was duly served on the accused and inspite of service of notice, the accused had not complied with the same. Hence, the complaint was filed and cognizance was taken and the petitioners were secured and they did not plead guilty. Hence, the complainant examined himself as PW1 and got marked the documents at Ex.P1 to P60 and the accused not led any defence evidence. The Trial Court after considering both the oral and documentary evidence, convicted the petitioners herein. Hence, an appeal was preferred before the Appellate Court in Crl.A.No.2458/2019 wherein, the contention was taken that the complaint is barred by limitation and there is no application filed before the Trial Court and very initiation of the proceeding against the petitioners is erroneous and the Court also failed to take note of the material on record and committed an error in convicting the petitioners. The Appellate Court taking note of  the grounds urged in the appeal, framed the points for consideration whether the complaint is liable to be dismissed in view of the delay and whether the judgment and sentence passed by the Trial Court requires interference and answered Point No.1 as negative and remanded the matter to consider the same afresh by giving an opportunity to the complainant to file necessary application for condonation of delay and directed the Trial Court to decide the application first and thereafter proceed with the matter as per law relying upon the judgment of the Apex Court in the case of Pawan Kumar Ralli and consequently, set aside the order of conviction and sentence passed by the Trial Court. Hence, the present revision petition is filed before this Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. The learned counsel in support of his argument relied upon the judgment of the Apex Court in the case of Pawan Kumar Ralli (supra), wherein the issue of limitation raised for the first time before the High Court was taken note of by the Appellate Court and the proceedings was quashed without considering the limitation issue on merits in terms of provision of Section 142(b) of the N.I. Act and permitted the complainant to file an application for condonation of delay before the Trial Court setting aside the order of the High Court and restored the criminal proceedings. It is also observed that by making said observation, the Supreme Court herein was not laying down a legal proposition that without even filing an application for condonation of delay at a initial stage, the complainant can be given an opportunity in respect thereof at any stage of the proceedings.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. The learned counsel also relied upon the judgment of this Court in the case of G. THIMMAPPA v. SHIVARAJ reported in ILR 2015 KAR 5064, wherein referring the judgment of the Apex Court held that the Trial Court dealing with offence punishable under Section 138 of the N.I. Act has to decide the application for condonation of delay before issuing process. If there is an application for condonation of delay, it must be considered at the threshold and to proceed only if the delay is condoned. It is further held that the proviso to Clause (b) of Section 142 came to be inserted in the year 2003 keeping in mind the reasons and objects of the Act and to obviate the complainant of the hardship. If proceedings are held without condoning delay, such proceedings do not have any force of law. If delay is noticed, the Trial Court can even call upon the complainant to file an application for condonation of delay. Therefore, it is expected of all the Trial Courts dealing with offence punishable under Section 138 of the N.I. Act to direct the office to put-up a specific note about the delay, if any, in filing the complaint and whether any application is filed for condonation of delay. It is also expected that before issuing process, the Judge to specifically indicate that there is no delay in filing the complaint.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. The learned counsel also relied upon the judgment of the Madras High Court in the case of A. RAHAMATHULLAH @ MAULANA v. P.A.K. MANOHRAN reported in 2015 (1) MWN (Cr.) DDC 75 (Mad.), wherein it is discussed with regard to introduction of provision as to condonation of delay in filing the complaint wherein the matter was remanded to the lower Court with liberty to the complainant to file an application for condonation of delay showing sufficient cause. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17. The learned counsel also relied upon the decision of the Division Bench of this Court in the case of STATE OF KARNATAKA v. NAGAPPA dated 28.06.1985 passed in C.R.P.No.3947/1984, wherein it is held that filing of application for condonation of delay with time barred appeal mandatory. Does not attract penalty of dismissal of appeal for non-compliance of procedural defect. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. The learned counsel also relied upon the judgment of this Court in the case of MARUTIRAO HOSMANI v. SURESH reported in LAWS (KAR) 2015-11-14 and brought to the notice of this Court that this Court referred the judgment of T.S.Muralidhar’s case (supra) which has been referred by the learned counsel for the petitioner, wherein it is held that the principles laid down in the judgment in T.S.Muralidhar’s case (supra) is not a good law. The learned counsel would submit  that in the said case, application was filed at the stage of Section 313 statement to condone the delay of ten days in filing the complaint and I.A. and complaint was dismissed and hence the Court remanded the case to the Trial Court to proceed with the case from the stage prior to the taking of cognizance. The learned counsel would vehemently contend that the judgment relied upon by the learned counsel for the petitioner in Venkatesh B.C. case (supra), the said judgment is passed only hearing one side. The other judgments which have been  referred have not considered the judgment of the Apex Court in the case of Pawan Kumar Ralli (supra) and in other unreported cases also the case was remanded to consider the delay application. Hence, there is no merit in the petition to entertain the revision.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. Having heard the respective learned counsel and also considering the principles laid down in the judgments referred supra, admittedly no application was filed before the Trial Court along with the complaint for condonation of delay. The material discloses that there is a delay of seven days in filling the complaint. It is not in dispute that the proviso is made in N.I.  Act under Section 142(b) to condone the delay, if any, in filing the complaint. On perusal of the order of the Appellate Court, it is clear that an application is filed before the Appellate Court and also it is not in dispute that the delay aspect has been raised for the first time before the Appellate Court and no such defence was taken before the Trial Court. The said aspect also has been discussed by the Appellate Court in paragraph No.12 that for the first time in the appeal memo, the issue of delay has been raised. The Appellate Court in paragraph No.13 discussed that the accused nowhere contested the matter on the pretext of delayed complaint. It is observed that he participated in the proceedings on merits and he has waived off the right to claim that the complaint was delayed. However, for the first time, the issue of delay is raised before the Appellate Court.  The  Appellate Court also relied upon the judgment of the Apex Court in the case of Pawan Kumar Ralli’s (supra) and observed that even the judgment of this Court in the case of Marutirao Hosamani has held that T.S.Muralidhar’s case cannot stand in view of the Apex Court’s pronouncement. Having considered those judgments, allowed the appeal and set aside the order and remanded the matter to the Trial Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21. The main contention of the learned counsel for the petitioners before this Court is that the said judgment is not applicable since the Appellate Court in the said judgment invoked Article 142 of the Constitution of India in order to meet the ends of justice and the impugned judgment of the High  Court quashing the criminal proceedings is set aside and the criminal proceedings before the Trial Court are restored. It is observed that the appellant is permitted to file an application for condonation of delay before the Trial Court, and if such an application is filed, the Trial Court shall be at liberty to consider the same on its own merit. It has to be noted that this  judgment is passed challenging the order passed by the High Court invoking Section 482 of Cr.P.C. on the ground that the  said complaint was barred by limitation. The Apex Court observed that the issue of limitation is raised for the first time before the High Court, but in the case on hand, the issue of limitation is raised for the first time before the Appellate Court. The Appellate Court also observed in the judgment that the Trial Court did not get an opportunity to exercise the discretion in terms of proviso of Section 142 (b) of the N.I. Act to condone the delay. It is also observed that in these peculiar facts and circumstances of the case, the High Court ought to have remanded the matter to the Trial Court for deciding the issue of limitation and ought to have given an opportunity to the complainant to file an application for condonation of delay before the Trial Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22. It has to be noted that in the case on hand also this is a peculiar facts and circumstances of the case and no such contention was taken before the Trial Court by the petitioners and if they had raised the issue of delay before the Trial Court, the complainant ought to have been given an opportunity to make necessary application to condone the delay and admittedly for the first time, the issue has been raised before the Appellate Court. Only on the ground that there is a delay, the complaint of the complainant cannot be thrown to the dustbin. If such defence was taken before the Trial Court as directed by this Court in the case of G. Thimmappa (supra), ought to have filed an application for condonation of delay. It is further observed that if delay is noticed, the Trial Court can even call upon the complainant to file an application for condonation of delay. No circumstances was arisen before the Trial Court. It is important to note that an amendment is brought in the year 2003 to Section 142 and clause (b) was inserted keeping in mind the reasons and objects of the Act and to obviate the complainant of the hardship. The Court has to take note of the wisdom of the legislature in bringing such an amendment and when the issue is raised for the first time in the appeal, the Court has to take note of all these factors into consideration.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23. I have already pointed out that if a defence was taken before the Trial Court that there was a delay and if the complainant has not filed any application after raising the said issue before the Trial Court, then the very contention of the petitioners in this case can be accepted, but no such contention was taken. No doubt, the Apex Court in the case of Pawan Kumar Ralli (supra), made an observation that by making the said observation the Supreme Court was not laying down a legal proposition that without even filing an application for condonation of delay at initial stage, the complainant can be given an opportunity in respect thereof at any stage of the proceedings. But the fact is that when the issue of limitation is raised before the Appellate Court, immediately the complainant has filed an application before the Appellate Court for condonation of delay and the Appellate Court comes to the conclusion that the delay cannot be considered in Appellate Court usurping the powers of the Trial Court and the same has  to be dealt with by the Trial Court and the same is in accordance with the judgment of the Appellate Court. Hence, I do not find any force in the contention of the learned counsel for the petitioners that the said judgment is laid down invoking Article 142 of Constitution of India. The Court has to look into the principles laid down in the judgment and the fact is that the Appellate Court has observed that in the peculiar facts and circumstances i.e., with regard to raising of issue of limitation for the first time in the High Court passed an order and in the case on hand also, the very same circumstances of issue of limitation is raised for the first time before the Appellate Court. The Court has to take note of the very proviso of Section 142(b) of the N.I. Act which confers jurisdiction upon the Court to condone the delay i.e. original Court or otherwise the very purpose and wisdom of the parliament would be defeated. The issue of limitation for the first time is raised before the Appellate Court and the Court exercising the discretion to condone the delay did not arise at all before the Trial Court and hence I am of the opinion that the Appellate Court has not committed any error in setting aside the judgment and directing the complainant to file necessary application to condone the delay and the Trial Court by giving an opportunity to the petitioners to consider the said application. Hence, the very contention of the learned counsel for the petitioners that the Appellate Court has committed an error in setting aside the judgment of conviction and sentence and committed an error in remanding the matter cannot be accepted. Hence, I answer point No.(i) as negative.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">24. </font></span><font face=\"Calibri, sans-serif\">The petition is dismissed.</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '70aefba562ca7cedabbe6349dc6a27ce.jpeg', '923fe1d24b7fc455e8f1c4695ec099b3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-09', 1, '', '', '2022-04-09 18:15:02', '2022-04-10 06:35:44');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1547, 'L4V5Qrdmf8szbv9gidf9LTxZS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Adverse possession explained. The same based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bangalore Development Authority Vs N. Jayamma.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2238 of 2016 decided on 10 March 2016.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A.K. Sikri and Justice R.K. Agrawal</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">The instant appeal, which has travelled to this Court, had its\r\norigin in a suit filed by the respondent in the Court of City Civil\r\nJudge, Bangalore. The said suit was filed by the respondent\r\nherein for declaration of title to the suit property situated in Sy. No.\r\n76/1. It was claimed by the respondent that she had purchased\r\nthe property on June 22, 1994 ad-measuring East to West – 60 ft.\r\nand North to South – 50 ft. (hereinafter referred to as the \'suit\r\nproperty\') from its previous owner and had constructed a building\r\nthereupon. The aforesaid suit property, which was part of Sy. No.\r\n76/1 comprising 4 acres 31 guntas (hereinafter referred to as the\r\n\'scheduled property\'), was acquired by the State Government for </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Bangalore Development Authority – appellant herein (for short,\r\n\'the BDA\'), for which Notification under Section 4 of the Land\r\nAcquisition Act, 1894 (for short, \'the Act\') was issued on\r\nDecember 15, 1984 followed by a declaration under Section 6 of\r\nthe Act on October 29, 1986. Purportedly, possession thereof\r\nwas handed over to the BDA on August 30, 1988 vide Mahazar\r\n(Exhibit D-4). However, it appears that the actual possession of\r\nthe suit property remained with the original owner who then sold it\r\nto the respondent in the year 1994, as stated above. It is on this\r\nbasis that the respondent filed the suit on the ground that she was\r\nin possession of the said property for more than 12 years even\r\nafter the acquisition thereof by the State Government and, in this\r\nmanner, she had perfected her title by adverse possession. Thus,\r\nthe relief claimed in the suit was for declaration that the\r\nrespondent had become the owner thereof.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2) The appellant contested the said suit by raising the plea that since\r\nthe scheduled property had been acquired by the Government for\r\nformation of the layout and with effect from the date of final\r\nnotification entire land vested with the Government, the\r\nrespondent was precluded from claiming the possession thereof\r\non the ground that it was already with her. It was also contended <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that the Government had handed over the possession of the land\r\nin question to the BDA on August 30, 1988 and BDA was in legal\r\npossession thereof. It was also submitted that once Notification\r\nunder Section 4 of the Act was issued on December 15, 1984 and\r\neven declaration under Section 6 was issued on October 29,\r\n1986, it was not permissible for the original owner to sell the\r\nacquired land to the respondent herein on June 22, 1994. It was\r\nalso contended that as the land vested with the Government, in\r\nany case, the limitation under Article 112 of the Limitation Act,\r\n1963 was 30 years and not 12 years and, therefore, the\r\nrespondent could not claim adverse possession before the expiry\r\nof 30 years.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16) In M. Venkatesh (supra) as well, land was acquired by the State\r\nGovernment of Karnataka and given at the disposal of the BDA.\r\nPreliminary Notification was issued on July 17, 1984 and final\r\nNotification dated November 28, 1986 was published on\r\nDecember 25, 1986. Determination of amount of compensation\r\npayable to the landowners having been approved by the\r\ncompetent authority on August 21, 1986, the BDA claimed that\r\npossession of the land was taken over from the landowners and\r\nhanded over to the engineering section of the BDA by drawing a\r\npossession Mahazar on November 06, 1987. A Notification under\r\nSection 16(2) of the Act was also published in the Karnataka <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Gazette dated July 04, 1991 which, according to the BDA,\r\nsignified that the land in question stood vested with the BDA free\r\nfrom all encumbrances whatsoever. Here also, after taking of the\r\naforesaid steps by the BDA, the original land owners of the\r\nacquired land sold the said land to different persons after carving\r\nout the sites/plots. When the actual possession was sought to be\r\ntaken, the said subsequent purchasers (like the respondent in the\r\ninstant appeal) filed writ petitions in the High Court. Their writ\r\npetitions, along with the writ petition of the respondent herein and\r\nsome others, were the subject matter of the judgment of the\r\nDivision Bench of the High Court in John B. James\'s case\r\n(supra). Like the respondent herein, the individuals/subsequent\r\npurchasers in the case of M. Venkatesh (supra) were also\r\nrelegated to the civil court giving them permission to file the suit if\r\nthey were claiming adverse possession. Five such suits were the\r\nsubject matter of the judgment in M. Venkatesh (supra). The trial\r\ncourt had, in fact, clubbed these suits which were decided\r\ntogether and decreed. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17) In that case also the trial court had recorded the findings that\r\nthose plaintiffs were in lawful possession on the date of the suit,\r\nsuch possession was for more than 12 years and, thus, the\r\nplaintiffs had perfected their title to the schedule properties by\r\nway of adverse possession. The BDA filed appeals against the\r\ndecree passed by the trial court. Four appeals were allowed\r\nwherein the High Court held that the trial court was wrong in\r\nrecording the finding that those four plaintiffs had established their\r\npossession. It was noticed that the plaintiffs in those appeals\r\nwere claiming settled possession of vacant piece of land, which\r\nwas clearly impermissible. The High Court found that there was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">no dispute that all the structures on the suit properties, relevant to\r\nthose suits, had been demolished and that the land was a vacant\r\npiece of land all along and at all material times, including on the\r\ndate of filing the suit as well as on the date of judgment. These\r\nfour plaintiffs had filed appeals which were dismissed by this\r\nCourt in M. Venkatesh (supra) approving the view taken by the\r\nHigh Court in the said four appeals. Insofar as decision in those\r\nfour cases is concerned, it may not be very relevant as in the\r\ninstant case it is not the vacant land with which we are concerned.\r\nHowever, what is relevant for us is the discussion in the fifth\r\nappeal which was filed by the BDA in the High Court wherein the\r\nHigh Court had affirmed the decree passed in favour of the\r\nplaintiff. The High Court noticed that in the said case the plaintiffs\r\nwere running a saw mill which was in operation long prior to the\r\nfiling of the suit and which continued to be in existence even on\r\nthe date of the suit as well as on the date of the judgment of the\r\nHigh Court. Keeping in view the aforesaid position, the High\r\nCourt relied upon its Division Bench judgment in John B.\r\nJames\'s case (supra) and held that the plaintiff therein was\r\nentitled to protection against attempted eviction by the BDA. On\r\nthis basis, decree passed by the trial court was affirmed. This\r\njudgment of the High Court was also appealed against, which also </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">became the subject matter of discussion in M. Venkatesh\r\n(supra). Pertinently, this Court allowed the appeal of the BDA and\r\nset aside the aforesaid judgment of the High Court and reversed\r\nthe decree passed by the trial court, thereby holding that even in\r\nthis case the plaintiff was not entitled to any protection.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18) Following reasons can be culled out in taking the aforesaid view\r\nby this Court:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(a) The plaintiff therein had purchased the property from the original\r\nowners in terms of sale deed dated August 22, 1980, which was\r\nlong after the issuance of the preliminary notification published in\r\nJuly 1984. Such a sale was clearly void and non est in the eyes\r\nof law, opined the Court. In arriving at this conclusion, it referred\r\nto earlier decisions of this Court in U.P. Jal Nigam v. Kalra\r\nProperties Pvt. Ltd. ; Ajay Kishan Singhal v. Union of India ;\r\nMahavir & Anr. v. Rural Institute, Amravati & Anr. ; Gian\r\nChand v. Gopala & Ors. ; Meera Sahni v. Lieutenant Governor\r\nof Delhi & Ors.; and Tika Ram v. State of Uttar Pradesh .</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(b) As on the date of suit, the plaintiffs had not completed 12 years in\r\npossession of the suit property so as to entitle them to claim adverse possession against the BDA, the true owner. This finding\r\nwas given on the basis that the plaintiffs could count the period of\r\nthe so-called adverse possession only from the date they\r\npurchased the property and the period for which the original\r\nvendor held the property, or for that matter the date of Mahazar,\r\ncould not be counted.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(c) The Court also rejected the argument of the plaintiffs that\r\npossession of the land was never taken. In this behalf, the Court\r\ntook the view that one of the settled mode of taking possession is\r\nby drawing a panchnama, which part had been done to perfection\r\naccording to the evidence led by the BDA. For this, the Court\r\nreferred to the judgments in Tamil Nadu Housing Board v. A.\r\nViswam (D) by Lrs.12 and Larsen & Toubro Ltd. v. State of\r\nGujarat & Ors.13</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(d) Most pertinently, the Court also held that the plaintiffs could not\r\nclaim adverse possession as, on the facts of that case, it could\r\nnot be said that possession of the plaintiffs was peaceful, open,\r\ncontinuous and non-hostile.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23) Learned counsel for the respondent had raised the plea of equity.\r\nHe has also submitted that when the BDA itself is created for the\r\npurpose of formation of layouts and allotment of sites to the\r\nmembers of the public, the respondent should not be\r\ndispossessed when she is in continuous possession of the suit\r\nproperty. However, these would not be the relevant\r\nconsiderations in the present case as we cannot forget that the\r\npresent appeal arises out of civil proceedings filed in the form of a\r\nsuit by the respondent and once it is found that the respondent <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">has not been able to prove title by adverse possession, no such\r\naspects, not coming within the scope of the suit proceedings, can\r\nbe looked into. Insofar as the argument predicated on Section 27\r\nof the Bangalore Development Authority Act or Section 24(2) of\r\nthe Right to Fair Compensation and Transparency in Land\r\nAcquisition Rehabilitation and Resettlement Act, 2013 are\r\nconcerned, again these issues were neither raised nor arise in the\r\ninstant case. If the respondent, if at all, has any right to make\r\nclaim on the aforesaid grounds, in any appropriate proceedings,\r\nshe can do so, if permissible in law. We may clarify that this\r\nCourt has not gone into these issues and, therefore, has not\r\nmade any comments on the merits of such pleas raised by the\r\nrespondent.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24) As a result, the appeal stands allowed resulting in dismissal of the\r\nsuit filed by the respondent in the trial court. In the facts and\r\ncircumstances of this case, there shall be no order as to costs.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0f7a82e592668f07be56bf71e6407fdd.jpeg', 'dbd21aa2a9498accecabf1f8ca1a2215.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-09', 1, '', '', '2022-04-09 19:07:42', '2022-04-11 05:27:07'),
(1557, 'kSQa8nY2eflSdTVpAx1cL3E6P', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'State is not vicariously responsible for judgments delivered by Judges. Calcutta High Court rejects plaint against the State seeking 100 Cr. compensation for the alleged defamatory statements in a judgement.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kunal Saha Vs The State of West Bengal and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CS 293 of 2017 decided on 4 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Shekhar B. Saraf.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The instant suit was instituted by the plaintiff for seeking a decree to the tune of Rs. 100 Crore against the defendant, that is, the State of West Bengal (hereinafter referred to as “the State”), on account of vicarious liability for an alleged act of defamation committed by a Hon’ble High Court Judge. The present application is on behalf of the State for rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure, 1908. A chronological history of the events that are relevant for settlement of this instant application is given below:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>a. On May 25, 1998, the wife of the Plaintiff, Mrs. Anuradha Saha passed away in Breach Candy Hospital, Mumbai. On November 19, 1998, Mr. Malay Kumar Ganguly, a relative of the plaintiff, initiated criminal proceedings being Case No. C-3883 of 1998 in the Court of the Learned Chief Judicial Magistrate, Alipore under Section 304 A of the Indian Penal Code, against Dr. Sukumar Mukherjee, Dr. Baidyanath Halder and Dr. Abani Roy, who had treated Mrs. Saha in Kolkata.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>b. In 1999, the plaintiff filed OP No. 240 of 1999 before the National Consumer Redressal Commission, New Delhi against 19 persons who had rendered medical treatment to Mrs. Saha, claiming compensation to the tune of Rs. 77,76,73,500/- with interest; the same was dismissed in the year 2006. The plaintiff also filed a complaint against Doctors namely Dr. Sukumar Mukherjee, Dr. Baidyanath Halder, and Dr. Abani Roy before the West Bengal Medical Council which was later dismissed. Another complaint was filed by the complaint against Breach Candy Hospital, Mumbai and one doctor named Dr. Udwadia before the National Consumer Disputes Redressal Commission. This complaint was subsequently withdrawn by the plaintiff.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>c. On May 29, 2002, the Learned Chief Judicial Magistrate at Alipore passed a judgment in Case No. C-3883 of 1998 convicting Dr. 3 Sukumar Mukherjee and Dr. Baidyanath Halder under Section304A of the Indian Penal Code and acquitted Dr. Abani Roy. The convicted doctors preferred a criminal appeal being Criminal Appeal no. 55 of 2002 and Criminal Appeal No. 54 of 2002 before the Learned District and Sessions Judge at Alipore against the said judgment. Mr. Ganguly filed a criminal revision application being CRR No. 1856 of 2002 for enhancement of punishment of the convicted doctors, and a criminal revision application being CRA No. 295 of 2002 before this Hon\'ble Court, questioning the legality of the judgement with respect to acquittal of Dr. Abani Roy.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>d. The Hon\'ble High Court at Calcutta transferred Criminal Appeal No. 55 of 2002 and Criminal Appeal No. 54 of 2002 to itself and heard the said criminal appeals and said criminal revision petitions together, renumbered as CRA No. 295 of 2002 and CRR No. 1856 of 2002. On March 19, 2004, the then Hon\'ble Justice Gora Chand Dey passed the judgement in the said matters wherein the convicted doctors were acquitted, the acquittal of Dr. Roy was upheld and some observations against the plaintiff were made. The said judgment was widely shown in the media.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>e. Mr. Ganguly challenged the said judgment in the Hon\'ble Supreme Court of India in Criminal Appeal Nos. 1191-1194 of 2005. The Hon\'ble Supreme Court dismissed the criminal appeals. The judgement passed by the Hon\'ble Apex Court on August 7, 2009 in Malay Kumar Gaguly –v- Dr. Sukumar Mukherjee and Others with Kunal Saha (Dr.) –v- Dr. Sukumar Mukherjee and Others reported in (2009) 9 SCC 221.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>f. In August, 2011, the plaintiff herein filed a complaint against the Hon\'ble Justice Gora Chand Dey (retired), being Case No. C/9928 of 2011 under Section 500 of the Indian Penal Code before the Learned Chief Metropolitan Magistrate which was dismissed on August 16, 2011. The plaintiff had also filed CRR No. 2755 of 2011 (Kunal Saha vs Mr. Gora Chand Dey Justice (Retired) and Anr.) in the Hon\'ble High Court at Calcutta which was dismissed without costs by a judgment dated September 29, 2012 passed by the Hon\'ble Justice Aniruddha Bose.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>g. On June 7, 2013, the plaintiff addressed a letter to the Member in Charge and Secretary in Charge of the Law Department, Government of West Bengal, inter alia urging the addressees to initiate proceedings against the Hon\'ble Justice Gora Chand Dey, since the judgment dated September 21, 2012 held that a private person is not authorized under Section 3(2) of the Judges Protection Act to initiate action against a judge by instituting civil or criminal proceedings.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>h. Four years later, on September 20, 2017, the Advocate on Record for the Plaintiff issued notice under Section 80 of the Code of Civil Procedure to the Secretary of Home Affairs for compensation of Rs. 100 Crores due to alleged inaction of the State. On December 22, 2017, the plaintiff has filed the instant Suit. The present application has been filed by the State on December 10, 2019 forrejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure, 1908</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. In the case of T Arivandandam –v- T.V. Satyapal reported in (1977) 4 SCC 467 it was held by the Hon’ble Supreme Court that if on a meaningful reading of the plaint the same provides an impression that it is manifestly vexatious, meritless and not disclosing a clear right to sue then power under Order 7 Rule 11 of CPC should be exercised to ensure that the ground mentioned therein is fulfilled</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. In the case of Popat and Kotecha Property –v- State Bank of India Staff Association reported in (2005) 7 SCC 510 it was held by the Hon’ble Supreme Court that the statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11. The Court further held that disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 of the CPC and the plaint can be rejected in those cases where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force.&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. In the recent judgment in Srihari Hanumandas Totala –v- Hemant Vithal Kamat &amp; Ors reported in (2021) 9 SCC 99 it was held by the Division Bench presided by D. Y. Chandrachud, J. And M. R. Shah, J., that to reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to and the defence made by the defendant in suit must not be considered while deciding the merits of the application. Further, the court held that the plea of res judicata requires consideration of the pleadings, issues and decision in the ‘previous suit’, such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused.&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. In the case of C. Natarajan –v- Ashim Bai and Another reported in (2008) AIR SC 363 it was held by the Hon’ble Supreme Court of India that applicability of one or the other provision of the Limitation Act per se cannot be decisive for the purpose of determining the question as to whether the suit is barred under one or the other article contained in 13 the Schedule appended to the Limitation Act, 1963.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. In my opinion, it is admitted by the plaintiff in the plaint itself that there is an apparent delay of 1964 days in filing the instant suit. Consequently, without disputing such admitted delay by the plaintiff it would be correct to say that just by going through the averments in the plaint, it is barred under the Limitation Act, 1963. The judgements passed in T. Arivandandam (supra), Popat and Kotecha (supra) and Sri Hari (supra) prescribe that the Courts while dealing with Order 7 Rule 11 application must examine the statement in the plaint without addition or subtraction of any counter or argument made by the opposite party and only the averments in the plaint will have to be referred. After following the ratio of the judgements mentioned above and upon a reading of the averments in the plaint the delay in filing of the suit is very evident.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. The findings made in F Liansanga (supra) are applicable to the present case as well, that is, Section 5 of the Limitation Act, 1963 does not apply to suits, but only to appeals and applications. The plaintiff had a limitation period of three years to bring action against the State but he crossed such limitation period and failed to file the suit within such period. In conclusion, it is patently clear that the plaint itself shows that there is a delay of 1964 days in filing of the present suit for which cause of action arose on August 7, 2009. This is an admission in the plaint itself, unlike other cases where Limitation is a mixed question of law and fact as was the case in Popat and Kotecha (supra). In the present case the plaintiff admits that there is a delay of 1964 days in filing of the plaint and seeks an exemption under Section 15 (5) of the Limitation Act, 1963 which is clearly applicable only in computing the period of limitation when the defendant is absent from India. In the present case, it is an admitted position that it was not the defendant that was absent from India, but the plaintiff himself. Accordingly, this section shall not apply in the present case and the plaintiff cannot rely on this provision to seek an exemption from the period of limitation. Keeping the above principles in mind, I have no hesitation in holding that this suit is inherently barred under the Limitation Act, 1963.&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. I proceed to now examine whether the plaint discloses a cause of action. In the plaint, the plaintiff stated that cause of action had arisen between the parties on and from August 7, 2009, that is the date of delivery of judgement by the Hon’ble Supreme Court. After scrutinizing the averments made in the plaint with documents relied on by the plaintiff, I have observed that subsequent to the judgement passed by the Hon’ble Supreme Court, the plaintiff filed a complaint against the Hon\'ble Justice Gora Chand Dey (retired), being Case No. C/9928 of 2011 under Section 500 of the Indian Penal Code before the Learned Chief Metropolitan Magistrate which was dismissed on August 16, 2011. The Criminal Revision application against the above order was also dismissed by the Court via judgment dated September 29, 2012. It is to be noted that the plaintiff did not file any suit for claiming damages for mental agony suffered by him after unsuccessfully claiming remedy from the Court. The relationship between the plaintiff and the State is nowhere in the picture when the plaintiff was seeking remedy by filing criminal cases against the Hon’ble Judge. When the plaintiff approached the State without even a single finding in favour of the defamation allegation made by him against the Hon’ble Judge, it would not be correct to say that at such moment the cause of action has arisen to proceed against the State for claiming damages due to mental agony. The plaint does not disclose any cause of action to proceed against the State. It appears to me that after exhausting the criminal remedies the plaintiff moved before the State authorities without highlighting any cause of action.&nbsp;<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. The plaintiff attempts to underscore the cause of action by referring to case of criminal defamation being case no. C/9938 filed by him under Section 500 of the Indian Penal Code, 1860. But it is a mere allegation which was ultimately decided against the plaintiff in the criminal revision application. There was no legal obligation cast upon the State to proceed against the judge and also, the plaint does not demonstrate any law that creates such an obligation. As has been demonstrated above, the plaint is woefully lacking in bringing about a cause of action against the State. Firstly, the plaint doesn\'t demonstrate as to how the State is responsible for the actions of the Hon\'ble Judge of the High Court. The plaint fails to indicate any law that creates an obligation on the State to take action against a Judge for an order passed by the Judge in his judicial capacity. In fact, the Judge\'s Protection Act, 1985 clearly provides protection to the Hon’ble Judge. In my opinion, the State has no duty to take up cajoles for the plaintiff, and in fact, the State is required to obey and comply with the orders of the Court. The misplaced notion of the plaintiff that the State is liable and is required to take action against orders passed by the High Court is absolutely unfounded and finds no place in the law. Secondly, it has to be noted that there is no master-servant relationship between the State and a High Court Judge, and accordingly, there is no question of any vicarious liability on the State for the judicial actions of the Judge. Under these circumstances, it is clear that the plaint is not only barred under the Limitation Act, 1963 but is also manifestly vexatious and without any merit whatsoever as the plaint doesn\'t disclose any cause of action on the basis of which the plaintiff can proceed against the defendant. Under these circumstances, I find this is a fit case for exercising the power conferred upon the Court under Order 7 Rule 11 of the CPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. Based on the above discussion, the instant application bearing G.A. No. 2788 of 2019 in C.S. No. 293 of 2017 for rejection of plaint under Order VII Rule 11 is allowed. C.S. No. 293 of 2017, is accordingly dismissed</b></span></p>', '310fd6fa95bc56026e460c423d61428e.jpeg', '0c7e8c30fd24eb28388e2f2b1178ab2d.docx', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-11', 1, '', '', '2022-04-11 18:52:19', '2022-04-11 09:11:40'),
(1548, 'KIcd2BIYI06hD17s9EaVLMGz6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Jurisdictional error can not result in exoneration of liability. Courts can quash the order passed by an incompetent authority and remand the matter back for fresh adjudication. Madras High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mahaveer Foods and Beverages Vs The Principal Commissioner of GST and Central Excise and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WP 2293 of 2018 decided on 29 April 2021.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.M. Subramaniam.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The petitioner states that it is a proprietorship concern and procures Tea from registered tea suppliers, Herbs & Spices from dealers in powder form and permitted food colours. All the said items are mixed together and made as a product, which is called as “Herbal Sherbat Granules”. It is only a flavoured tea and not a ready to drink or instant tea item. It contained around 90% of Tea.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. The learned counsel appearing on behalf of the writ petitioner mainly contended that it is a fit case for remanding the matter back to the first respondent for fresh adjudication. The first respondent has not considered the grounds mainly raised by the petitioners. The judgments relied on by the petitioners were also not considered. This apart, the Central Food Technological Research Institute, Mysuru, had not at all received the sample products and in the absence of sample products, the results cannot be declared and based on certain presumptions and assumptions, the first respondent proceeded and passed the impugned order and therefore, the impugned order is liable to be set aside. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The learned counsel for the petitioner reiterated that no samples were collected nor any report has been given. In the absence of any such report from the Central Food Technological Research Institute, the 1st respondent ought not to have formed an opinion regarding the products manufactured by the petitioner, more specifically, which is to be considered only as tea and appropriately classified. However, the 1st respondent, in the absence of any such research report from the Research Institute, formed an opinion and passed orders without considering the grounds as well as the objections raised by the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The petitioner has stated that the 1st respondent all along informed that the samples were sent to the Central Food Technological Research Institute, Mysuru, and in an application submitted by the petitioner under the Right to Information Act, a reply was furnished on 27.07.2017, wherein there is an indication that “No samples were received”. Further, it is stated that the analysis were not performed in the absence of any samples and without conducting any analysis of the samples, the 1st respondent decided the issues, which is improper and thus, the impugned order is to be set aside and the matter to be remanded back. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.The High Court cannot adjudicate the facts and merits with reference to documents and evidences. Trial is not entertainable under Article 226 of the Constitution of India. All such procedural aspects are to be followed by complete adjudication/trial by the original authorities as well as by the appellate authorities under the provisions of the Statute and the powers under Article 226 of the Constitution of India is limited to find out whether the processes contemplated under the Statutes and the procedural aspects are followed by the competent authorities as well as the appellate authorities or not. The High Court, under Article 226 of the Constitution of India, is not expected to usurp the powers of the appellate authorities by adjudicating the merits of the matter on certain documents and evidences. In the event of adjudication of merits under Article 226 of the Constitution of India in the absence of complete trial with reference to the documents and evidences, there is a possibility of miscarriage of justice, and therefore, the High Court is expected to be cautious, while entering into the venture of adjudication of certain merits with reference to the original documents and evidences produced by the respective parties to the lis. This being the legislative intention, High Court is expected to trust the institutional authorities as well as the hierarchy of institutions contemplated under the Statutes. Institutional respects are of paramount importance for providing complete justice to the parties and the various stages of adjudication are important for the purpose of correcting omissions, commissions, errors in appreciation of evidence, etc. Powers of the High Court under Article 226 of the Constitution. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.As far as the judgment of the Hon\'ble Supreme Court of India in the case of M/s.Canon India Private Limited (supra) is concerned, as rightly pointed out by the learned Senior Standing Counsels appearing on behalf of the respondents that the matter went to the Hon\'ble Apex Court by way of regular appeal and the Hon\'ble Supreme Court of India, while adjudicating the final orders passed by the Appellate Tribunal, formed an opinion that the issuance of show cause notice itself was by an improper authority. Thus, by citing the said finding, the appellate remedy otherwise provided under the Statute cannot be dispensed with, and in the event of accepting the said contention, in all such cases, every litigant will approach the High Court by way of writ petition bypassing the appellate remedy, which is not desirable and cannot be accepted. As observed earlier, Institutional respect is of paramount importance. Even the point of jurisdiction, limitation, error apparent on the face of the record, are on merits and all are to be adjudicated before the appellate authority and the appellate authority, more specifically, the Appellate Tribunal or the Commissioner (Appeals), as the case may be, is empowered to adjudicate all such legal grounds raised by the respective parties and make a finding on merits. Thus, usurping the powers of the appellate authorities by the High Court by invoking its powers under Article 226 of the Constitution of India is certainly unwarranted. The parties must be provided an opportunity to approach the appropriate authorities for redressal of their grievances in the manner known to law. In the event of entertaining all such writ petitions, the High Court will not only be over-burdened, but usurping the powers of the appellate authority is certainly not desirable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.Jurisdictional error should not result in exoneration of liability. Jurisdictional error, if any committed, is technical, and thus, rectifiable. In such circumstances, the Courts are expected to quash the order passed by an incompetent authority and remand the matter back for fresh adjudication. Contrarily, if an assessee is exonerated from liability, undoubtedly, the purpose and object of the Act is defeated.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.The growing practice in the High Court is to file writ petitions under Article 226 of the Constitution of India without exhausting the statutory remedies provided under the Act. The point raised in this regard are statutory violations. However, even such statutory violations can be dealt with by the Appellate authorities or the Appellate Tribunals. This apart, in a writ petition, if such orders passed with jurisdictional errors and quashed without any remand, then an injustice would be caused to the very spirit of the Statute enacted for the benefit of the public at large. Thus, Courts are expected to be cautious, while granting exoneration of liability merely on the ground of jurisdictional errors, if any committed by the authorities competent. On some occasions, jurisdictional errors are committed wantonly or in collusion with the assessees, knowingly that there is a possibility of escaping from the clutches of law. Thus, the higher authorities of the Department are expected to be watchful and review the orders passed by the Subordinate authorities and in the event of any negligence, dereliction of duty, collusion or corrupt activities, then such officials are liable to be prosecuted apart from initiation of departmental disciplinary proceedings. The procedures to be followed in the department for assessment is well settled. Thus, the authorities competent are not expected to commit such jurisdictional errors in a routine manner. In these circumstances, review of such orders by the higher authorities are imminent to form an opinion that there is any willful or intentional act for commission of such jurisdictional errors, enabling the assesses to get exonerated from the liability. Liability and jurisdictional errors are distinct factors, and therefore, Courts are expected to provide an opportunity to the Department to decide the liability on merits and in accordance with law with reference to the provisions of the Act and Rules and guidelines issued by the Department. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.Large number of writ petitions are filed without exhausting the statutory appeal remedies and High Court is also entertaining such writ petitions in a routine manner. Keeping such writ petitions pending for long time would cause prejudice to the interest of the assessee also. Thus, such statutory provisions regarding the appeal are to be decided at the first instance, enabling the litigants to avail the remedy by following the procedures as contemplated under law. Such writ petitions are filed may be on the ground of jurisdiction or otherwise. However, the Courts are expected to ensure that all such legal grounds available to the parties are adjudicated before the proper Forum and only after exhausting the statutory remedies, writ petitions are to be entertained. In the absence of exhausting such remedies, High Court is loosing the benefit of deciding the matter on merits as the High Court cannot conduct a trial or examine the original records in the writ proceedings under Article 226 of the Constitution of India. Thus, the Courts shall not provide an unnecessary opportunity to the assessee to escape from the liability merely on the ground on jurisdictional error, which is rectifiable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. This being the factum established, this Court has no hesitation in arriving a conclusion that the petitioners are bound to exhaust the Appellate Remedy as contemplated under Section 35-B of the Central Excise Act, 1944. The petitioners are at liberty to approach the Appellate Authority by filing an appeal in a prescribed form and by complying with the provisions of the Act. The petitioner is also at liberty to file such an appeal before the Appellate Tribunal within a period of 30 days from the date of receipt of a copy of this order and in the event of filing any such appeal, the Appellate Tribunal shall adjudicate the matter on merits and in accordance with law by affording opportunity to all the parties concerned.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. With this liberty, the writ petition in W.P.No.2293 of 2018 stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b7dcac127eb7b7e8817d98163e7e659a.jpeg', 'b29e379bdbab0865668f26e719faf180.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-15', 1, '', '', '2022-04-10 20:52:55', '2022-04-15 15:09:22');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1611, 'tgSP2ZuQwbdMMvcv5L5FoMRTt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Grant of bail in matters involving serious offences. Reasoning is the life blood of the judicial system. An unreasoned order suffers the vice of arbitrariness. Supreme Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ms.Y Vs State of Rajasthan and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 649 of 2022 decided on 19 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.V. Ramana and Justice Krishna Murari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The present appeal has been filed against the final judgment and order dated 20.09.2021 passed in S.B. Criminal Miscellaneous Bail Application No. 14458 of 2021 by the High Court of Rajasthan, at Jaipur, whereby the High Court granted regular bail to respondent no. 2 ­ accused.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. Reasoning is the life blood of the judicial system. That every order must be reasoned is one of the fundamental tenets of our system. An unreasoned order suffers the vice of arbitrariness. In Puran v. Rambilas, (2001) 6 SCC 338 this Court held as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“8. …Giving reasons is different from discussing merits or demerits. At the stage of granting bail a detailed examination of evidence and elaborate  documentation of the merits of the case has not to be undertaken. What the Additional Sessions Judge had done in the order dated 11­9­2000 was to discuss the merits and demerits of the evidence. That was what was deprecated.That did not mean that whilst granting bail some reasons for prima facie concluding why bail was being granted did not have to be indicated.”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19. In  Kalyan Chandra Sarkar  v. Rajesh Ranjan,  (2004) 7 SCC 528 this Court indicated the importance of reasoning in the matter concerning bail and held as follows:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being  granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non­application of mind…”</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>21. From the above, it is clear that this Court has consistently upheld the necessity of reasoned bail orders, with a special emphasis on matters involving serious offences. In the present case, respondent no. 2 ­accused has been accused of committing the grievous offence of rape against his young niece of nineteen years.  The fact that the respondent no. 2 ­accused is a habitual offender and nearly twenty cases registered against him has not even found mentioned in the impugned order. Further the High Court has failed to consider the influence that the respondent no. 2 ­accused may have over the prosecutrix as an elder family member. The period of imprisonment, being only three months, is not of such a magnitude as to push the Court towards granting bail in an offence of this nature.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>22. The impugned order passed by the High Court is cryptic, and does not suggest any application of mind. There is a recent trend of passing such orders granting or refusing to grant bail, where the Courts make a general observation that “the facts and the circumstances” have been considered. No specific reasons are indicated which precipitated the passing of the order by the Court.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23. Such a situation continues despite various judgments of this Court wherein this Court has disapproved of such a practice. In the case of Mahipal (supra) this Court observed as follows:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>“25.  Merely recording “having perused the\r\nrecord” and “on the facts and circumstances\r\nof the case” does not subserve the purpose of\r\na reasoned judicial order. It is a fundamental\r\npremise of open justice, to which our judicial\r\nsystem is committed, that factors which have\r\nweighed in the mind of the Judge in the\r\nrejection or the grant of bail are recorded in the\r\norder passed. Open justice is premised on the notion that justice should not only be done, but\r\nshould manifestly and undoubtedly be seen to\r\nbe done. The duty of Judges to give reasoned\r\ndecisions lies at the heart of this commitment.\r\nQuestions of the grant of bail concern both\r\nliberty of individuals undergoing criminal\r\nprosecution   as well as the interests of the\r\ncriminal justice system in ensuring that those\r\nwho commit crimes are not afforded the\r\nopportunity to obstruct justice. Judges are\r\nduty­bound to explain the basis on which\r\nthey have arrived at a conclusion.”<br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>24. In view of the above, the impugned order passed by the High Court is set aside. The Criminal Appeal is accordingly allowed. Bail bonds stand  cancelled. Respondent no. 2  accused is directed to surrender within one week from the receipt of this order, failing which, the concerned police authorities shall take him into custody.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c5ba0fff6ca7d7222c667a7c459a55eb.jpeg', '402d4f5428f472d2edcbe06318b2b09d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-21', 1, '', '', '2022-04-20 20:20:36', '2022-04-21 04:55:52'),
(1618, '1bn3GxXKiqIQnRPHLkp9Fv37J', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Employer cannot alter date of birth records at the end of career of employee to his detriment by taking unilateral decision that date of birth specified in service book was erroneous. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shankar Lal Vs Hindustan Copper Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2858 of 2022 decided on 20 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dhananjaya Y. Chandrachud and Justice Aniruddha Bose.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The appellant is before us primarily questioning the validity of an order of the employer (Hindustan Copper Limited ­ the first respondent in this appeal) treating his date of birth as 21st September 1945. This date has relevance for computation of his benefits accruing from a Voluntary Retirement Scheme (“VRS”), for which he applied and was granted. The appellant’s stand is that his date of birth is 21st September 1949. The appellant had  invoked  the  writ jurisdiction of the High Court of Judicature for Rajasthan at Jaipur (“the High  Court”),  but  was  unsuccessful before a Single Judge and the Division Bench in sustaining his case. If the latter date, i.e. 21st September, 1949 was accepted by the employer to be his date of birth, his financial benefits from the said scheme would have been higher, as he would have had longer service tenure left. It appears that the tenure of service left was the basis on which the VRS benefit was to be computed. We would like to point out here that in the pleadings and copies of various other documents forming part of the paperbook, there are overlapping dates claimed by the appellant to be his actual date of birth. These are 20th September 1949 and 21st  September 1949. This variation, however, is insignificant so far as adjudication of this appeal is concerned.  In this judgment, we shall ignore this variation and proceed on the basis that 21st  September 1949 is the date claimed by the appellant to be his birthdate.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. The stand of the employer, thus, is that in his service book there was error in recording the age of the appellant as 26 years in 1975 and we ought not to give any credence to such recordal. The respondents had only corrected an error and such records in service book cannot be treated to be acceptance of the appellant’s date of birth as 21st September 1949. We, however, find that the authorities proceeded in this matter in a rather mechanical manner and embarked on a unilateral exercise of correcting the age entry in the service book on their perception that an error was being corrected. This exercise was conducted without giving any opportunity of hearing to the appellant and at the fag end of his service tenure. Otherwise, various documents including the L.I.C. policy consistently reflect 21st September 1949 to be the appellant’s birthdate.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.   This is not a case where a workman is seeking to change his date of birth to his benefit at the end of his career. This is a case where the employer is altering the records at the end of the career of the workman to his detriment on taking unilateral decision that the date of birth specified in the appellant’s service book was erroneous, relying on a date disclosed in a statutory form. Turning to Clause 5 of the Standing Order, we have already expressed our view on the evidentiary value of the entries in Form “B” as regards date of birth of a workman.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. The employer has taken a stand that the date of birth recorded of the appellant in the service book was an act by mistake. This is a weak explanation in our opinion. Several subsequent steps were taken by the employer in relation to the appellant’s employment on the basis of the entry in his service book. The employer are the custodian of these records. They  acted all along on the  basis of the service entries till the appellant took VRS. It has been pleaded by the appellant that at the time of his appointment, the office of the respondent company entered in all their records his date of birth as 21st September 1949. In the light of these facts, we are not inclined to accept the version of the employer that service book recordal was a mistake. The employer, a public sector unit in this case, was expected to act with a certain element of responsibility in maintaining the service records of their workmen and ensure that there is uniformity in particulars concerning  individual employees. There is no explanation as to how this mistake occurred and how pay slips continued to be issued carrying the mistaken date of birth for such a long time. The High Court in our view ought not to have had accepted “mistake” as the cause for different entries in different documents.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21. We do not think the appellant’s complaint over the dispute was belated so as to non­suit him on this count alone. VRS benefit is an entitlement and  assumes the character of property to the employee concerned once his application for VRS is accepted. It is the right of a person under Article 300A of the Constitution of India to have the VRS benefit to be given on accurate assessment thereof, the employer here being a public sector unit.   If at the time of quantifying the VRS benefit after accepting an employee’s application for voluntary retirement, the employer take any step that would reduce such benefit in monetary terms, such step shall have to be taken under the authority of law.  We find the action of the employer lacking in authority of law in this case on two counts. First, it fails for not adhering to the principles of natural justice. The decision not to follow the service   book   recordal   was   taken   without   giving   an opportunity of hearing to the appellant. The opportunity of hearing of the appellant also accrued because the employer themselves had proceeded on the basis that the later date i.e., 21st September 1949 was the birthdate of the appellant and this was a long established position. Moreover, since in the own records of the employer two dates were shown, under normal circumstances it would have been incumbent on their part to undertake an exercise on application of mind to determine in which of these two records the mistake had crept in. That process would also have had  to  involve participation of the appellant, which would have been compatible with the principles of natural justice. There are several authorities in which this Court has deprecated the practice on the part of the employees at the fag end of their career to dispute the records pertaining to their dates of birth that would have the effect of extension of the length of their service. We are not referring to those authorities  in this judgment as the ratio laid down on that count by this Court is not relevant for adjudication of this appeal. The very reasoning on which an employee is not permitted to raise age­correction plea at the fag end of his service to extend his tenure should also apply to the employer as well. It is the employer here who had proceeded on the basis of age of the appellant reflected in his service book during the latter’s service tenure and they ought not to be permitted to fall back on the Form “B” which would curtail the VRS benefit of the appellant.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22. The principle of estoppel cannot be invoked in this case against the appellant to debar him from claiming the benefit properly  computed  as per  his age reflected in theofficial documents. Occasion did not arise for the appellant to advert to the age correcting process so far as entry in the Form “B” is concerned as the employer themselves had treated his date of birth to be 21st September 1949 in the service book.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23. In these circumstances, we are of the opinion that the Division Bench as also the Single Judge of the High Court did not appreciate the materials  available in their proper perspective. We do not think that the view taken by the Division Bench was a possible view. Sustaining such view would  result in depriving the appellant of his legitimate benefits under the applicable Voluntary Retirement Scheme. The materials relied upon by the appellant were ignored altogether. We thus set aside the judgment of the Division Bench. As a consequence, the judgment of the Single Judge also would stand set aside. The rejection order dated 13th October 2008 of the competent authority shall stand quashed. The respondent no.1 proceeded in the case of the appellant in an erroneous manner in treating the appellant’s date of birth to be 21st September 1945. We accordingly direct the respondents to  extend the benefits of VRS to the appellant treating his date of birth as 21st September 1949. Such benefits shall be extended to him within a period of four months, upon deducting therefrom the sum already paid to him. The differential amount shall carry simple interest at the rate of seven percent (7%) per annum to be computed from 3rd  October 2002, being the date on which he was released from service, till the date of actual payment to him in terms of this judgment. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24. The appeal is allowed accordingly.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b25e378b2ec996c6fa6ad996d03bf452.jpeg', 'aeeff6fdf94508ff38afbd3a2880cc21.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-21', 1, '', '', '2022-04-21 17:11:55', '2022-04-22 04:09:22'),
(1617, 'lNWIWXA1XFG7LLXZll95CNEVi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Review. An error, which is not self-evident and to be detected by the process of reasoning, can not be said to be an error apparent on the face of the record, justifying the Court to exercise the power of review. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Central Board of Direct Taxes and others Vs Anuradha Goyal and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 73 of 2021 decided on 18 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B. Veerappa and Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The present respondents, filed O.A.Nos.621-623/2016 before the Central Administrative Tribunal, Bengaluru Bench to set aside the three orders dated 19.10.2015 as per Annexures-19, 20 and 21 and direct the review petitioners herein to grant applicants/respondents pro-forma/notional promotion to the post of Principal Commissioners of Income Tax and consequential retirement benefits as per ACC list dated 30.1.2015 Annexure-A5 for the panel year 2013-14 from 31.5.2014 when the posts were created as per CBDT Notification-Annexure-A4, contending that the applicants/respondents through an All India Civil Service Examination conducted by the Union Public Service Commission (UPSC) were appointed to the Indian Revenue Service (IRS) and joined service in the Cadre of ITO Group \'A\'/Assistant Commissioners of Income Tax and secured their regular promotions and finally reached to the post of Commissioner of Income Tax (CIT). Applicants retired on 30.9.2013, 25.5.2014 and 31.12.2014 respectively. It was further contended that the Department prepared a list of eligible candidates from the cadre of CIT to be promoted as Principal CIT against these 300 newly created posts of Principal CIT. The Departmental Promotion Committee (DPC) considered the eligible candidates and submitted its recommendations to the Appointments Committee of Cabinet (ACC) for approval of the proposal for empanelment of officers for promotion to the post of Principal CIT against the panel year 2013- 14 which was approved on 30.1.2015 and the names of the present applicants were figured at Serial Nos.11, 27 and 38 respectively in the list of officers approved in the regular panel. On the same day, the Department of Revenue, Ministry of Finance issued an order Annexure-A6 giving effect to the approval of the ACC. Unfortunately, by the time, the order Annexure-A6 could be issued, these applicants had got already retired from service and consequently, they could not be promoted despite their names having been found in the promotion list approved by the ACC. Hence, on these and several other grounds raised, the applicants sought the reliefs as prayed for before the Central Administrative Tribunal.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Considering the rival contentions urged by both parties on merits a Co-ordinate Bench of this Court held that the facts on record would reveal that the present respondents and one D.B. Manival Raju, served as Commissioners of Income Tax in the office of the 2nd petitioner-the Income Tax Department; the 1st applicant retired on 30.9.2013 while serving as Commissioner of Income Tax and 2nd and 3rd applicants, who were also holding similar post, retired on 25.5.2014 and 13.12.2014 respectively. Even before their retirement, an order, dated 31.05.2013, was issued by the 1st petitioner-Department where a decision was taken to increase the strength of Commissioners in the Income Tax Department by promoting them from the post of Commissioner by creating 184 additional posts as per Annexure-A by taking existing 116 posts to 300. Admittedly, as on that date, all the three applicants, were serving as Commissioners of Income Tax at different offices under the 2nd review petitioner. It is prior to implementation of the order, they had been relieved from their services as stated supra and as such, they were in consideration zone for the panel year 2013-14. It was further held that the names of the applicants were considered by the Appointments Committee of the Cabinet (ACC) for promotion to the post of the 1st respondent-Anuradha Goyal shown at Sl.No.11, 2nd respondent-Pavin Kishore Prasad at Sl.No.27, 3rd respondent-Satish Goyal at Sl.No.38 (which is shown as Satish Chand Goyal) vide Annexure-A5 dated 30.1.2015 and the applicant one D.B. Manival Raju in earlier application was shown at Sl.No.97 in the said list. Since Sri D.B. Manival Raju approached  the Tribunal by filing an application in O.A.No.1698/2015, his application for consideration of notional promotion was allowed, thereby indicated that as on the date, though his name was due for consideration and as he was not promoted, he was entitled to be considered for notional promotion and to ensure that his eligibility for all benefits as if, he were to be in service at that time. Thereafter, though the respondents herein also approached the Tribunal by filing O.A.Nos.621-623/2016 for the same relief, the same was rejected observing that however, in the subsequent proceedings initiated by the respondents, the Tribunal had ignored to look into its own earlier order, and also the reasoning assigned by the Tribunal to consider the prayer of D.B. Manival Raju for notional promotion and consequential benefits is ignored, while considering the respondents\' applications. However, there was no parity in the order passed by the Tribunal while considering the prayer of respondents which was similar to that of D.B. Manival Raju. Admittedly, the present review petitioners, who were parties to the order dated 21st January, 2020 passed in Writ Petition No.25502/2018 by a Co-ordinate Bench of this Court, have not challenged the said order and as such, it has attained finality.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23. Admittedly, in the present case, it is not the case of the review petitioners that there is error apparent on the face of the record to review the order dated 21st January, 2020 passed by the Co-ordinate Bench of this Court in Writ Petition No.25505/2018, but the reason for filing the review petition is only because of change of law in a subsequent decision by another Co-ordinate Bench of this Court which is impermissible in view of the provisions of Explanation of the Order XLVII Rule 1 of the Code of Civil Procedure. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24. It is well settled that the first and foremost requirement while entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the record and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed. An error, which is not self evident and to be detected by the process of reasoning, can hardly be said to be an error apparent on the face of the record, justifying the Court to exercise the power of review. Re-agitating the points already decided is impermissible in review proceedings and an error as contemplated under Order XLVII Rule 1 of Code of Civil Procedure, 1908, for permissibility of review, must be such, which is apparent on the face of the record and not an error which has to be fished out and searched. In other words, it must be an error of inadvertence.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">28. Though the learned ASG relied upon the dictum of the Hon\'ble Supreme Court in the case of M.M. Thomas -vs- State of Kerala and Another particularly paragraphs-14 and 16 wherein it has been held with regard to power and duty to review its own judgment that, the High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law. </font></span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it, the High Court has not only power, but a duty to correct it. The High Court\'s power in that regard is plenary. If such power of correcting its own record is denied to the High Court, when it notices the apparent error, its consequence is that the superior status of the High court will dwindle down. Therefore,  it is only proper to think that the plenary powers of the High Court would include the power of review relating to error apparent on the face of the record. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">29.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">On careful perusal of the impugned order passed by the Co-ordinate Bench, this Court being a Court of record does not find any error apparent on the face of the record as the only ground taken by the review petitioners for review is the change in law made by the Co-ordinate Bench of this Court and the same is passed without bringing into the Court notice, the earlier order which is sought for review. Therefore, the said judgment has no application to the facts and circumstances of the present case. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">30.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">Another judgment relied upon by the learned ASG for the review petitioners is in the case of Shivdev Singh and Others -vs- </span><font face=\"Calibri, sans-serif\">State of Punjab and Others wherein a review petition came to be filed by persons who were not party to the previous proceedings. Under that circumstance and their interests though were sought to be affected by the decision, the Hon\'ble Supreme Court dismissed the review petition. Admittedly, in the present case, the present review petitioners were parties to the orders passed by the Co- ordinate Bench, which is sought under review on merits as well as on decision passed in D.B. Manival Raju\'s case by the Central Administrative Tribunal. As such, the said judgment stated supra is not applicable to the facts and circumstances of the present case.</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 31. Another judgment relied upon by the learned ASG in the case of Moran Mar Basselios Catholicos and Another -vs- Most Rev. Mar Poulose Athanasius and Others wherein at paragraph-34 it is observed that the only defect pointed out was that no invitation of the meeting was given to the churches under the control of 1st defendant and certainly, there is an error apparent on the face of the record. Admittedly, as already stated supra, in the present case, except change of law passed in a subsequent judgment, the review petitioners have not made out any error apparent on the face of the record and thereby, the said judgment has no application to the facts and circumstances of the present case.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>32. In another judgment relied upon by the learned ASG in the case of A.R. Antulay -vs- R.S. Nayak and Another (Criminal Appeal No. 468/1986) it has been held that the highest  court in the land should not, by technicalities of procedure forge fetters on its own feet and disable itself in cases of serious miscarriages of justice. It is said that “Life of law is not logic; it has been experience”. But it is equally true as Cardozo said: “But Holmes did not tell us that logic is to be ignored when experience is silent”. Those who do not put the teachings of experience and the lessons of logic out of consideration would tell what inspires confidence in the judiciary and what does not, etc. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>33. It was a case decided by the Hon\'ble Supreme Court on merits of the criminal appeal while considering the constitutional provisions of Articles 131, 137, 139A, 136, 134, 140, 142, 145, 14, 21, 32 of the Constitution of India. In the case on hand, the review petition is filed under Order XLVII Rule 1 r/w Section 114 of the Constitution of India to review the order passed by the Co-ordinate Bench of this Court mainly on the ground of subsequent change in law by subsequent Co-ordinate Bench which is impermissible in view of the statutory provisions of Order XLVII Rule 1 Explanation of the Code of Civil Procedure. Thereby, the said judgment also has no application to the facts and circumstances of the present case.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>34. For the reasons stated above, the point raised in the present review petition is answered in the negative holding that the review petitioners have not made out any ground to review the order dated 21st January, 2020 made in Writ Petition No.25502/2018 passed by the Co-ordinate Bench of this Court in exercise of our review powers under Order XLVII Rule 1 r/w Section 114 of the Code of Civil Procedure.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>35. Order</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i) The Review Petition filed by the Review petitioners is hereby dismissed as being devoid  of any merits; and</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii) No order as to costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd8562fea284067081923fecbdaaaab03.JPG', '8de8766bd0e431c7e1d0f3e30aedfae7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-21', 1, '', '', '2022-04-20 22:13:23', '2022-04-21 08:59:26'),
(1612, 'AsZBEvxx0wAM7lcuepWc9Jc0W', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'The practice of pronouncing only the operative portion of the judgment without a reasoned judgment and to pass a reasoned judgment subsequently must be stopped and discouraged\'\'. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Indrajeet Yadav Vs Santosh Singh and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 577 of 2022 decided on 19 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 30.03.2019 passed by the High Court of  Judicature at   Allahabad in Criminal Appeal No.1083 of 2012 and Criminal Appeal No.1178 of 2012 by which the High Court has allowed the said appeals preferred by the original accused and has acquitted them for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code (for short, ‘IPC’), the original complainant/informant has preferred the present appeals.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Learned counsel appearing on behalf of the appellant – original complainant/informant and learned counsel appearing on behalf of the State have drawn our attention to the fact that in the present case the arguments in the appeals were concluded on 30.03.2019 and the High Court allowed the said appeals on the very day and pronounced the operative portion of the order and set aside the judgment and order of conviction passed by the learned Trial Court and directed the accused who was in jail to be released, but a reasoned judgment and order was pronounced after a period of approximately five months.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Applying the law laid down in the case of  Balaji Baliram Mupade   (supra)  and the earlier decisions of this Court in the case of Jagdev Singh Talwandi (supra) to the facts of the case on hand, the impugned judgment and order passed by the High Court is unsustainable</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.2 Despite the strong observations made by this Court as far as back in the year 1984 and thereafter repeatedly reiterated, still the practice of pronouncing only the operative portion of the judgment without a reasoned judgment and to pass a reasoned judgment subsequently has been continued.  Such a practice of pronouncing the final orders without a reasoned judgment has to be stopped and discouraged.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.4 From the record of proceedings it appears that the reasoned judgment was pronounced and uploaded after a period of almost five months.  Therefore, applying the law laid down by this Court in the decisions referred to hereinabove, we set aside the impugned judgment and order passed by the High Court without further entering into the merits of the case nor expressing anything on merits in favour of either party. We remand the appeals to the High Court to decide the same afresh in accordance with law and on its own merits. We request the High Court to finally decide and dispose of the appeals at the earliest and preferably within a period of six months from the date of the receipt of the present order. However, it is observed that during the pendency of the appeals before the High Court the accused need not surrender and they may be treated to have been released on bail and continued to be released on bail, however subject to the ultimate outcome of the appeals before the High Court. If the conviction is sustained the accused shall surrender within a period of two weeks from the date of the pronouncement of the judgment. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Present appeals are accordingly allowed  to the aforesaid extent. Registry is directed to return the record of proceedings of the case received to the High Court forthwith.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '415cb43278633ff5965e3cf1ad9d9b5a.jpeg', 'e9a73a6aca8a15819d153de9173f8aa7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-21', 1, '', '', '2022-04-20 20:29:22', '2022-04-21 06:43:43'),
(1613, 'QUU3lpF3fYVjlMWDaa3vfcw4Y', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Pre-deposit of 75% of the awarded amount is mandatory when award under  Small and Medium Enterprise Development Act is challenged. Supreme Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Tirupati Steels Vs M/S Shubh Industrial Component and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2941 of 2022 decided on 19 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. Feeling aggrieved and dissatisfied with impugned order dated 09.04.2019 passed by the Division Bench of the High Court of Punjab and Haryana   at Chandigarh in Commercial Appeal Case No. FAO­COM/4/2019 (O&M), by which in the proceedings under section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act, 1996) which was filed under section 19 of the Micro, Small and Medium Enterprise Development Act, 2006 (hereinafter referred to as the ‘MSMED Act, 2006’), the Division Bench of the High Court has directed the first appellate   court  to proceed under section 34 of the Arbitration Act,1996 without insistence for making predeposit of 75% of the awarded amount, the judgment creditor has preferred the present appeal.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. The question which is posed for consideration of this Court is, whether, the pre­deposit of 75% of the awarded amount as per section 19 of the MSMED Act, 2006, while challenge to the award under section 34 of the Arbitration Act, 1996, is made mandatory or not, is now no longer res integra in view of the decision of this Court in the case of  Gujarat State Disaster Management Authority Vs. Aska Equipments Limited; (2022) 1 SCC 61.  While interpreting section 19 of the MSMED Act, 2006 and after taking into consideration the earlier decision of this Court in the case of  Goodyear  (India) Ltd. Vs. Norton Intech Rubbers (P)  Ltd.; (2012) 6 SCC 345, it is observed and held that the requirement of deposit of 75% of the amount in terms of the award as a pre­deposit as per section 19 of the MSMED Act, is mandatory. It is also observed that however, at the same time, considering the hardship which may be projected before the appellate court and if the appellate court  is  satisfied that there shall be undue hardship caused to the appellant/applicant to deposit 75% of the awarded amount as a pre­deposit at a time, the court may allow the pre­deposit to be made in instalments.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. In view of the aforesaid decision of this Court, the impugned order passed by the High Court permitting the proceedings under section 34 of the Arbitration Act, 1996 without insistence for making pre­deposit of 75% of the awarded amount is unsustainable and the same deserves to be quashed and set aside. As observed hereinabove, while passing the impugned order, the Division Bench of the High Court has relied upon an earlier decision of the Division Bench in the case of M/s Mahesh Kumar Singla (supra) which has taken a contrary view. Therefore, the decision of the Division Bench in the case of M/s Mahesh Kumar Singla (supra), which has been relied upon by the Division Bench of the High Court while passing the impugned  order, is held to be not good law and is specifically overruled to the extent that it holds that predeposit of 75% of the awarded amount under section 19 of the MSMED Act, 2006, is directory and not a mandatory requirement. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. In view of the above discussion and for the reasons stated above, the present appeal is allowed. The impugned order passed by the High Court is hereby quashed and set aside. Respondent No.1 is directed to deposit 75% of the awarded amount before its application under section 34 of the  Arbitration Act, 1996 challenging the award is entertained and considered on merits.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>It  is  observed and held that unless and until respondent No.1 deposits the 75% of the awarded amount, its application under section 34 of the Arbitration Act, 1996, challenging the award shall not be entertained and decided on merits and, in that case, the execution proceedings   may  continue. The present appeal is accordingly allowed. There shall be no order as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a748a6cf18df1f2eee2229fe7b97c4a5.jpeg', '432b1c41ed96f4684a121a09cf448b39.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-21', 1, '', '', '2022-04-20 20:43:24', '2022-04-21 10:30:36');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1550, 'SJQAp4E0M2IsKi6QQ6EYFhmM5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mere creation of a website or projecting it as sister concern of another website owned by the accused without any intent to commit fraud does not amount to an act of forgery. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ramesh Rajagopal Vs Devi Polymers Private Limited.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 133 of 2016 decided on 19 April 2016.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.A. Bobde and Justice Amitava Roy.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The appellant was prosecuted by the respondent\r\nunder Sections 409, 468 and 471 of the Indian Penal\r\nCode (in short \'the IPC\') read with Sections 65 and\r\n66 of the Information Technology Act, 2000 read with\r\nSection 120(b) of the IPC. The appellant is a\r\nDirector in Devi Polymers Private Limited, Chennai <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which is a leader in Polyester Moulding Compound\r\n(PMC), Sheet Moulding Compound (SMC) and Dough\r\nMoulding Compound (DMCO) in India.\r\nIt is also manufacturing SMC and DMC moulded\r\ncomponents for the electrical, automotive and various\r\nother industries. The company is also supplying SMC\r\nand DMC compounds and components to almost all the\r\nleading electrical switch gear industries and\r\nautomotive industries in India.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>5. It has three Units – A, B and C. Unit \'C\' is\r\nbeing headed by the appellant. It is not disputed\r\nthat the Unit \'C\' primarily renders consultancy\r\nservices. However, all the three Units are units of\r\none entity i.e. Devi Polymers Private Limited.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. In the course of business, the appellant thought\r\nof improving the consultancy services and apparently\r\ncontacted a consultant known as Michael T Jackson.\r\nHe also contacted the regular consultants of the\r\nCompany i.e. Devi Polymers Private Limited. The\r\nconsultants apparently advised the creation of a\r\nseparate entity known as Devi Consultancy Services\r\nand accordingly, in the web page that was created by\r\nthe consultant, this name occurred. Since an invoice\r\nwas raised by the consultant Michael T Jackson in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the sum of 10,857.50 US Dollars, the said amount was\r\npaid from the funds of Devi Polymers Private Limited\r\namounting to Rs.5,57,207/-. The amount of\r\nRs.17,000/-has been paid by the Devi Polymers Private\r\nLimited to M/s Easy Link. These amounts were paid as\r\nadvised by the appellant. It is significant that no\r\namount has been paid or received by Unit C\r\nseparately, independently of Devi Polymers Private\r\nLimited. All this, namely the engaging of\r\nconsultants and payments to them was apparently done\r\nat the behest of the appellant.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. The relationship being strained between the\r\nrespondent and the appellant, who are relatives,\r\nseveral proceedings seem to have been initiated in\r\nthe Company Law Board pertaining to oppression and\r\nmismanagement. As of now, it is said that the\r\nappellant\'s petition for mismanagement has been\r\ndismissed but an appeal is pending. We are, however,\r\nnot concerned with those proceedings.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8. However, in the course of disputes and the\r\npending proceedings, the respondent initiated the\r\ninstant criminal complaint against the appellant.\r\nThe main circumstances which are relied upon by the\r\nrespondent in the complaint is that in the website\r\nfor Devi Consultancy Services that was created on the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">advice of the consultant is shown as a separate\r\ndivision independent of Devi Polymers Private\r\nLimited. According to the complainant, this has\r\nresulted in forgery, since there is no such thing as\r\nDevi Consultancy Services; though the existence of\r\nUnit C of Devi Polymers Private Limited, which deal\r\nwith consultancy is not denied. The second\r\ncircumstance seems to be the payment made by the Devi\r\nPolymers Private Limited to the consultants from\r\ntheir own account. The former is said to be forgery\r\nand the latter is said to be mis-appropriation of\r\nfunds and breach of trust.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. Having given our anxious consideration to the\r\ndispute, we find that none of the aforesaid\r\ncircumstances can lead to an inference of commission\r\nof an offence under the IPC at any rate none of the\r\noffence alleged. As far as the website is concerned,\r\nthough undoubtedly, Devi Consultancy Services (DCS)\r\nis mentioned, it is made clear in the website itself\r\nthat DCS is a part of Devi Polymers Private Limited\r\nwhich is apparent from a link which shows Devi\r\nPolymers Private Limited, in the website itself, are\r\nshown as Devi Polymers Private Limited, the main\r\nCompany and Devi Consultancy Services as a sister\r\nCompany. Similarly, in the website of Devi Polymers\r\nPrivate Limited, which was moved by the consultant, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">there is a link which shows that Devi Consultancy\r\nServices is a sister concern and it is stated that\r\nviewers may visit that site. The address of Devi\r\nConsultancy Services is shown to be the same address\r\nas that of Devi Polymers Private Limited. We are\r\nsatisfied that there is no attempt whatsoever to\r\nproject the Devi Consultancy Services as a concern or\r\na Company which is independent and separate from Devi\r\nPolymers Private Limited, to which both the parties\r\nbelong. In any case it is not possible to view the\r\nact as an act of forgery.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>10. It might have been possible to attribute some\r\ncriminal intent to the projection of the Unit C as\r\nDevi Consultancy Services in the website, if as a\r\nresult of such projection, the appellant had received\r\nany amounts separate from the Devi Polymers Private\r\nLimited, but a perusal of the complaint shows that\r\nthis is not so. Not a single rupee has been received\r\nby the appellant in his own name or even separately\r\nin the name of Unit C, which he is heading. All\r\namounts have been received by Devi Polymers Private\r\nLimited. </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. It is not possible to view the contents of the\r\nwebsite showing the Devi Consultancy Services as a\r\nconcern which is separate from Devi Polymers Private\r\nLimited in view of the contents of the website\r\ndescribed above. Moreover, it is not possible to\r\nimpute any intent to cause damage or injury or to\r\nenter into any express or implied contract or any\r\nintent to commit fraud in the making of the said\r\nwebsite. The appellant has not committed any act\r\nwhich fits the above description. Admittedly, he has\r\nnot received a single rupee or nor has he entered\r\ninto any contract in his own name on the basis of the\r\nabove website.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. In the absence of any act in pursuance of the\r\nwebsite by which he has deceived any person fraudulently or dishonestly, induced any one to\r\ndeliver any property to any person, we find that it\r\nis not possible to attribute any intention of\r\ncheating which is a necessary ingredient for the\r\noffence under Section 468.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. We find that the allegations that the appellant\r\nis guilty of an offence under the aforesaid section\r\nare inherently improbable and there is no sufficient\r\nground of proceedings against the accused. The\r\nproceedings have been initiated against the appellant\r\nas a part of an ongoing dispute between the parties\r\nand seem to be due to a private and personal grudge.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. In all the cases the principle that the accused\r\nmust be relieved from the prosecution, even if the\r\nallegations are taken at their face value and\r\naccepted in their entirety do not constitute any\r\noffence has been upheld, and thereafter in Umesh\r\nKumar v. State of Andhra Pradesh and anr., reported\r\nin (2013) 10 SCC 591.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. As regards the commission of offences under the\r\nInformation Technology Act, 2000 the allegations are\r\nthat the appellant had, with fraudulent and dishonest\r\nintention on the website of Devi Consultancy Services <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">i.e. www.devidcs.com that the former is a sister\r\nconcern of Devi Polymers. Further, that this amounts\r\nto creating false electronic record. In view of the\r\nfinding above we find that no offence is made out\r\nunder Section 66 of the I.T. Act, read with Section\r\n43. The appellant was a Director of Devi Polymers\r\nand nothing is brought on record to show that he did\r\nnot have any authority to access the computer system\r\nor the computer network of the company. That apart\r\nthere is nothing on record to show the commission of\r\noffence under Section 65 of the I.T. Act, since the\r\nallegation is not that any computer source code has\r\nbeen concealed, destroyed or altered. We have\r\nalready observed that the acts of the appellant did\r\nnot have any dishonest intention while considering\r\nthe allegations in respect of the other offences. In\r\nthe circumstances, no case is made out under Sections\r\n65 and 66 of the I.T. Act, 2000.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">22. The High Court seems to have over looked these\r\ncircumstances and has merely dismissed the petition\r\nunder Section 482 of the Criminal Procedure Code on\r\nthe ground that it requires evidence at a trial to\r\ncome to any conclusion. We, however, find that the\r\ncriminal proceedings initiated by the respondent\r\nconstitute an abuse of process of Court and it is\r\nnecessary to meet the ends of justice to quash the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">prosecution against the appellant.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>23. Accordingly, the appeal succeeds. The prosecution\r\nis quashed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b76c3f192cf5181f8a174de2347298dc.png', 'f54065f298de3cc7df6a9595f8bc4a69.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-17', 1, '', '', '2022-04-10 21:27:40', '2022-04-17 08:30:53'),
(1551, '2JzM4ZwZ4LopRJz5qsjy3J4HJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Employees appointed on contractual basis without any advertisement and contrary to the provisions of Articles 14 and 16 of the Constitution of India, do not have right to regularization. Punjab and Haryana High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Avtar Singh Vs State of Punjab and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CWP 20093 of 2003 decided on 5 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Anupinder Singh Grewal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Learned counsel for the petitioner contends that the order\r\ndispensing the services of the petitioner has been passed without affording an\r\nopportunity of hearing to him. The petitioner had served for over four years\r\nand was entitled to regularization of his services in terms of the instructions\r\nissued by the State Government on 23.01.2001 and 28.03.2022 (Annexures P-4\r\n& P-5 respectively).\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Learned counsel for respondent No.3 states that the petitioner was\r\nappointed as a Driver on contractual basis only for a period of three months\r\nwithout any advertisement and therefore, his services could not be regularized.\r\nHe has relied upon the judgments of the Supreme Court in the cases of Punjab\r\nWater Supply and Sewerage Board versus Ranjodh Singh and others,\r\n2007(2) SCC 491 and Accounts Officer (A&I) APSRTC & others versus\r\nK.V. Ramana and others, 2007(2) SCC 324 and a Division Bench of this\r\nCourt in the case of Mahender Singh and others versus State of Haryana\r\nand others, 2007(2) SCT 177.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner had been appointed as a Driver on 25.08.1999 on\r\ncontractual basis for a period of three months. Subsequently, his services were\r\nextended. However, by the order dated 14.11.2003 (Annexure P-8), his services\r\nwere dispensed with. There is nothing on record to indicate that the petitioner\r\nhad been appointed in response to an advertisement or in accordance with the\r\nrules. The appointment was purely on contractual basis. It is apt to notice that\r\nthe Supreme Court in the cases of Punjab Water Supply and Sewerage\r\nBoard versus Ranjodh Singh and others (supra) and Accounts Officer\r\n(A&I) APSRTC & others versus K.V. Ramana and others (supra) has held\r\nthat the employees appointed on contractual basis without any advertisement\r\nand contrary to the provisions of Articles 14 and 16 of the Constitution of\r\nIndia, do not have right to regularization.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Consequently, I do not find any merit in this petition which stands\r\ndismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4f22f411afbb0c99a263c7440e4ed2a2.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-14', 1, '', '', '2022-04-11 16:55:49', '2022-04-14 13:24:55'),
(1552, 'uB4ExLecyDVvUVsckHRYBqxRR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Community certificate is irrelevant when appointment is is made under disability quota and not based on community. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bank of Baroda Vs Susmita Saha.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1650-1651 of 2021 decided on 7 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sanjay Kishan Kaul and Justice M.M. Sundresh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The appellant made the respondent undergo one\r\nyear Post Graduate Diploma in Banking and Finance\r\n(PGDBF) meant for students as eligibility for\r\nstudents seeking admission for the appointment as\r\nProbationary Officer on its successful\r\ncompletion. The basic eligibility criteria to\r\nundertake the said diploma course is a degree.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The respondent, a disabled candidate, applied for\r\nthe aforesaid course under the disability quota\r\non the basis of the degree obtained from the\r\nEastern Institute for Integrated Learning in\r\nManagement University, Sikkim. The appellant\r\naccepted the respondent\'s application, and thereafter she completed the course, though\r\nbelatedly.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The respondent was not given the posting as the\r\nProbationary Officer by the appellant as it was\r\nnot completed within the time. The respondent\r\napproached the National Human Rights Commission,\r\nwhich directed the appellant to provide immediate\r\nplacement.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The order dated 14.10.2017 passed by the National\r\nHuman Rights Commission was sought to be set\r\naside by the appellant by filing a writ petition\r\nbeing, Writ Petition No. 2114 of 2018, before the\r\nHigh Court of Delhi. The learned Single Judge\r\ndismissed the writ petition inter alia holding\r\nthat the time limit was not informed to the\r\nrespondent. Aggrieved over the decision of the\r\nlearned Single Judge, dismissing the writ\r\npetition filed, an intra court appeal was filed\r\nin the Letters Patent Appeal No. 298 of 2019.\r\nThe Division Bench of the Delhi High Court\r\nconfirmed the order of the learned Single Judge.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Counsel for the appellant submitted that in order\r\nto give a quietus to the issue, a letter of offer <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of appointment was indeed given to the\r\nrespondent, but the verification found that she\r\nwas not eligible as the degree obtained by her\r\nhas not been recognized by the University Grants\r\nCommission. On that basis, a review was filed\r\nbut erroneously dismissed. A further submission\r\nhas been made that the material on record would\r\nindicate that the community certificate produced\r\nby the respondent that she belongs to the\r\nScheduled Caste community appears to be not\r\ngenuine, though even as her father, who worked\r\nwith the appellant, produced a similar\r\ncertificate.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n6. Counsel for the respondent submitted that the\r\nbasis for filing the writ petition is the order\r\npassed by the National Human Rights Commission.\r\nThus, the other issues cannot be permitted to be\r\nagitated, especially when the respondent was made\r\nto complete the course and after obtaining a\r\nloan, which is required to be reimbursed.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. We do not find any merits in these appeals. On\r\nthe issue of completion within a stipulated time,\r\nthe appellant has accepted the order of the High </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court. The writ petition was filed only\r\nchallenging the order of the National Human\r\nRights Commission. At that point in time, the\r\nobjection was with respect to the aforesaid issue\r\nalone. Though we do not wish to say anything on\r\nthe eligibility of the respondent on the basis of\r\nthe degree obtained by her, the situation has\r\nbeen brought forth by the appellant. It is the\r\nappellant who permitted the respondent to undergo\r\nthe diploma course which she did complete. Had\r\nthe objection been raised at the earlier point of\r\ntime with the permission being denied to undergo\r\nthe diploma course, perhaps the respondent would\r\nnot have anything to say. Similarly, the issue\r\nqua the community certificate cannot be agitated\r\nfor the first time before us, more so when the\r\nappointment is sought to be made on the\r\ndisability quota and not on the basis of the\r\ncommunity. We have no difficulty accepting the\r\ncounsel\'s contention for the appellant with\r\nrespect to the degree not being recognized by the\r\nUniversity Grants Commission forming part of the\r\nqualification as the law is quite settled, and it </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is for the employer to fix the qualification.\r\nHowever, on the peculiar facts of the case, which\r\nwe have discussed in the preceding paragraphs, we\r\ndo not wish to interfere with the order passed by\r\nthe High Court of Delhi upholding the directions\r\nof the National Human. Insofar as the\r\nreimbursement is concerned, it is expected to be\r\ndone in terms of the rules governing.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>8. The appeals thus stand dismissed with no costs.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'eb9742c827f49eadca0b73bbeddc8dd9.jpeg', 'b4055506bc5d45ef6685a6cda6fa4a52.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-14', 1, '', '', '2022-04-11 17:03:31', '2022-04-14 13:16:32'),
(1553, 'fP479e6BzRufttSTgZnKrgvSU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Employee who disappears after suspension order is passed cannot take advantage of his deliberate absence to claim benefits. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>State of Jharkhand Department of Health Medicine Education and Family Welfare and others Vs Banaras Prasad (DEAD) through LRS.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 7196 of 2016 decided on 7 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sanjay Kishan Kaul and Justice M.M. Sundresh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The respondent was employed as a clerk in the Health\r\nDepartment of the State of Bihar, as it stood then, when\r\nhe was suspended vide Order dated 15.2.1991 of a Civil\r\nSurgeon-cum-CMO, Giridih. It appears from the\r\nrecords that the suspension Order could not be served on\r\nhim as he disappeared from the scene. Nor did he agitated\r\nhis suspension or the consequential inaction thereafter\r\nas no departmental proceedings were held possibly on\r\naccount of his having disappeared from the scene.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State of Jharkhand was created out of the erstwhile State of Bihar under the provisions of Bihar\r\nReorganisation Act, 2000 on 01.11.2000 and the State of\r\nJharkhand vide a notification dated published on\r\n22.10.2001 adopted the Bihar Service Code, 1952 w.e.f.\r\n15.11.2000. It appears that thereafter the case of the\r\nrespondent came into light and vide Order dated\r\n31.1.2003, the Deputy Secretary, Department of Health &\r\nFamily Welfare, Government of Jharkhand revoked the\r\nsuspension order dated 15.2.1991 and posted respondent\r\nNo. 1 as Clerk under Civil Surgeon, Ranchi and issued\r\ndirection to the Civil Surgeon, Giridih to frame charges\r\nand initiate departmental proceedings against the\r\nrespondent. On account of absence of vacancy of post,\r\nvide order dated 31.5.2003, the respondent was posted on\r\nthe vacant post of Head Clerk under Civil Surgeon,\r\nKoderma and the respondent joined on 04.7.2003.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>It is at the aforesaid stage that the respondent\r\nstarted demanding admissible allowances, benefits and\r\npromotion for the period 15.2.1991 till 31.3.2003 inter\r\nalia on the grounds that no proceedings have been\r\ninitiated against him during that period and also claims\r\nsalary for the period June, 2003 to February, 2004 as per\r\nthe Last Pay Certificate. On account of the appellant not <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">obliging, Writ Petition (S) No.1097 of 2005 was filed\r\nbefore the High Court of Jharkhand at Ranchi. The learned\r\nSingle Judge of the High Court allowed the writ petition\r\nvide Order 04.9.2012. The order recorded that no\r\ndepartmental proceedings were ever initiated against the\r\npetitioner nor he was found guilty for any charge (an\r\naspect undisputedly factually incorrect). After recording\r\nsubmissions, the writ petition was allowed without really\r\nrecording any reasons other than the fact of absence of\r\ndepartmental proceedings as alleged by the respondent. A\r\nreview petition was filed by the appellant predicated on\r\na wrong recording of the factum of no departmental\r\nproceeding being initiated against the respondent. The\r\nreview application was, however, dismissed by the Order\r\ndated 30.1.2015 merely recording the High Court order\r\nrecording that factually the absence of departmental\r\nproceedings is not correctly noted but only opining that\r\nif departmental proceedings had been initiated\r\nsubsequently they may face their own fate. The respondent\r\nassailed the aforesaid orders in LPA No.539 of 2015. This\r\nLPA, in the same manner as the Order of the Single Judge\r\nwas dismissed by a cryptic order dated 09.5.2016 impugned\r\nin the present proceedings.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The aforesaid order has never been assailed by the\r\nrespondent and the purport of the impugned orders would\r\nbe to give him the full salary benefits for the complete\r\nperiod of absence, something we cannot countenance.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>We were initially a little circumspect in respect of\r\nthe manner in which the State has handled the case of the\r\nrespondent where he remained under suspension for a long\r\nperiod of time without any departmental proceeding being\r\ninitiated and the explanation given by the learned\r\ncounsel for the State of Jharkhand that most of the\r\nperiod was when the Sate of Jharkhand had not been carved\r\nout did not appeal to us. However, what appeals to us is\r\nthe fact that after his suspension the respondent appears\r\nto have disappeared from the scene and thus cannot be\r\npermitted to take advantage of his absence of the\r\nsuspension order. We did put a question to the learned\r\ncounsel for the respondent that did he ever report for\r\nwork after the suspension order or over this period of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">time did he ever challenged the same till his suspension\r\nwas revoked by the State of Jharkhand and there is no\r\nanswer to the same.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>It would be absolutely contrary to a service\r\njurisprudence principle if an employee is able to take\r\nadvantage of his own absence for this period of time. If\r\nhis grievance was that departmental proceedings were not\r\nbeing initiated despite suspension, he was required to\r\ntake redressal of his grievances. He did not do so. On\r\nthe other hand he conveniently remained absent from the\r\nsame with a result that even the suspension order could\r\nnot be served on him. That the State of Bihar also did\r\nnothing in the matter is another part of the story!\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>We thus are of the view that both the impugned\r\njudgments cannot be sustained and have to be set aside\r\nand the respondent should be entitled to the benefits in\r\nterms of the order passed on 13.5.2015 extracted\r\naforesaid.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>The aforesaid would logically be subject to any\r\nchallenge to be laid to the same but its too late now\r\nafter seven years for the respondent to claim the right\r\nto challenge their aspect. </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The civil appeal is allowed in the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">aforesaid terms,\r\nleaving parties to bear their own costs.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7539bc2051248f419e96bf60339511f9.jpg', '0b5a94de7efc6c4af4674df289684760.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-13', 1, '', '', '2022-04-11 17:24:52', '2022-04-13 17:54:17');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1554, 'tlnmzKATRCHMAGx6tJnu7V0Jp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Non disclosure of material information while applying for job can be a ground for termination of service. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Union of India and others Vs Dilip Kumar Mallick.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2754 of 2022 decided on 5 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dinesh Maheshwari and Justice M.M. Sundresh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The challenge herein is to the judgment and order dated\r\n25.03.2019 in Writ Appeal No. 223 of 2018, whereby the Division\r\nBench of the High Court of Orissa at Cuttack, in partial\r\ndisapproval of the order dated 10.04.2018 passed by the learned\r\nSingle Judge of the High Court in Writ Petition(C)\r\nNo. 24085 of 2018, interfered with the punishment of removal\r\nfrom service, as awarded to the respondent; and directed the\r\npresent appellants to impose ‘any lesser punishment as deemed\r\njust and proper’.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The only question for consideration in this appeal is,\r\nas to whether the Division Bench of the High Court was\r\njustified in interfering with the quantum of punishment awarded\r\nto the respondent? The background aspects may be noticed to the\r\nextent relevant for the present purpose. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. In the year 2003, the respondent was appointed under the\r\nCentral Reserve Police Force (‘CRPF’) Group Centre,\r\nBhubaneswar. While continuing in service, a departmental\r\ninquiry was initiated against him on the allegations that\r\nthough he was involved in Kendrapara Police Station Case No.\r\n349 dated 26.09.2001 for the offences punishable under Sections\r\n341, 323, 294, 337, 506 read with Section 34 of the Indian\r\nPenal Code and was charge-sheeted for the said offences on\r\n01.12.2001; and though the said criminal case was pending\r\nbefore the competent Court but, while filling up the\r\nverification roll, he suppressed/concealed the said fact and\r\nsuch an act was prejudicial to the discipline of CRPF. The\r\nrespondent participated in the inquiry and ultimately, he was\r\nawarded the punishment of removal by the Disciplinary\r\nAuthority. The appeal taken by the respondent was also\r\ndismissed by the Appellate Authority on 31.07.2009.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. However, on 02.02.2012, a writ petition filed by the\r\nrespondent bearing No. 14945 of 2009 was allowed by the High\r\nCourt to the extent that the Appellate Authority was directed\r\nto reconsider the appeal within two months in light of the\r\njudgment of this Court in the case of Commissioner of Police\r\nand Ors. v. Sandeep Kumar: (2011) 4 SCC 644. The Appellate\r\nAuthority, thereafter, passed a fresh order on 22.08.2012,\r\nagain dismissing the appeal and declining to interfere with the\r\ndecision of the Disciplinary Authority. The respondent again\r\napproached the High Court by way of the writ petition leading\r\nto the present appeal, being W.P.(C) No. 24085 of 2012.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The plea taken by the present respondent before the\r\nlearned Single Judge in this writ petition was that, he had not\r\nsuppressed any information so as to be held guilty in\r\ndisciplinary proceedings. In respect of the particular column\r\nin the verification roll, it was submitted, he had neither\r\nmentioned ‘Yes’ nor mentioned ‘No’ as regards the criminal\r\ncase. It was also asserted that he was neither arrested nor\r\nremanded to judicial custody; and the matter having been\r\nsettled between the parties in the village, he did not know\r\nabout the pendency of the case and hence, did not state any\r\ninformation in that regard in the relevant column of the\r\nverification roll. The present appellants opposed the writ\r\npetition with the submissions that the respondent left the\r\nrelevant column blank, though the criminal case was pending\r\nagainst him and such an act was that of concealment/suppression\r\nof material facts.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7.1. However, thereafter, the Division Bench of the High Court\r\nreferred to a few passages in the 3-Judge Bench decision of\r\nthis Court in Avtar Singh v. Union of India and Others: (2016)\r\n8 SCC 471, and observed that the respondent had been acquitted\r\nin the said criminal case prior to awarding of punishment in\r\nthe disciplinary proceedings. The Division Bench also observed\r\nthat the matter was earlier remanded to the Appellate Authority\r\nfor re-consideration in light of the decision of this Court in\r\nthe case of Sandeep Kumar (supra) but, the Appellate Authority\r\nagain stuck to the punishment of removal and thereby, set at\r\nnaught the directions of the Court. On these considerations,\r\nthe Division Bench formed the view that the punishment of\r\nremoval from service was too harsh and thus, directed the\r\npresent appellants to impose ‘any lesser punishment as deemed\r\njust and proper’. The Division Bench also issued consequential\r\norders and directions as regards continuity of service of the\r\nrespondent.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Assailing the order aforesaid, it has been strenuously\r\nargued by Ms. Nidhi Khanna, learned counsel for the appellant\r\nthat, furnishing of false information and suppression of any\r\nrelevant fact in the verification roll could only be viewed\r\ndisfavourably and a person like the respondent, with the\r\nadmitted position of suppression of material fact about\r\npendency of the criminal case against him, could not have been\r\nordered to be taken back in service; and the punishment of\r\nremoval from service in this matter called for no interference.\r\nLearned counsel has particularly referred to and relied upon\r\nthe 3-Judge Bench decision of this Court in the case of Avtar\r\nSingh (supra).\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Per contra, it is submitted by Mr. Piyush Kumar Roy,\r\nlearned counsel for the respondent that the respondent had been\r\nserving the appellants without any cause of complaint since\r\nafter his appointment in the year 2009. It is submitted with\r\nreference to the judgment and order dated 01.05.2008, as passed\r\nby the Sub-Divisional Judicial Magistrate, Kendrapara in Trial\r\nNo. 33 of 2002 pertaining to GR Case No. 613 of 2001, that the\r\nrespondent was honourably acquitted in the said case pertaining\r\nto the offences of petty nature where more than 50 persons of\r\nthe village were parties and it had not been a matter of\r\ncriminality of conduct of the respondent. Learned counsel for\r\nthe respondent has strenuously argued that the respondent had\r\nnot been guilty of supplying any false information; and in such\r\na case of trivial nature, where the respondent was ultimately\r\nacquitted honourably, the punishment of removal from service <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">would be too harsh and in the totality of the circumstances,\r\nthe Division Bench has rightly interfered to the limited extent\r\nof requiring the authorities to re-consider the matter on the\r\nquantum of punishment.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>9.1. With reference to the decision in Avtar Singh (supra) and\r\nparticularly to the summation in paragraph 38.4 and its subparagraphs, the learned counsel would submit that this being a\r\nmatter of trivial nature, where the respondent had been\r\nhonourably acquitted, the employer in its discretion could\r\nignore such alleged suppression of facts, which did not carry\r\nthe element of any ill-intent on the part of the respondent.\r\nLearned counsel has also made a fervent plea for leniency,\r\nparticularly with reference to the facts that the respondent\r\ncomes from a humble background and has a family to support. </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. The fact that the respondent was guilty of suppressing\r\nmaterial fact is not of any doubt or dispute. He had indeed\r\nleft the relevant columns in the verification roll blank; and\r\nthereby, had been wanting in forthrightness while filling up\r\nthe verification roll for employment with the appellant.\r\nAdmittedly, at the time of filling up the verification roll,\r\nthe criminal case was pending. The respondent cannot feign\r\nignorance about the said case because he indeed surrendered\r\nbefore the Trial Court and was granted bail. That being the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">position, the findings whereby he is held guilty of misconduct\r\nof suppression/concealment of material information, cannot be\r\nfaulted at. In fact, such findings of the Disciplinary\r\nAuthority and the Appellate Authority have been affirmed by the\r\nlearned Single Judge as also by the Division Bench in the order\r\nimpugned. The question, then, is as to whether the Division\r\nBench was justified in interfering with the quantum of\r\npunishment? In our view, the answer could only be in the\r\nnegative.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Thus, it remains beyond the pale of doubt that the cases of\r\nnon-disclosure of material information and of submitting false\r\ninformation have been treated as being of equal gravity by this\r\nCourt and it is laid down in no uncertain terms that non-disclosure\r\nby itself may be a ground for an employer to cancel the candidature\r\nor to terminate services. Even in the summation above-quoted, this\r\nCourt has emphasized that information given to the employer by a\r\ncandidate as to criminal case including the factors of arrest or\r\npendency of the case, whether before or after entering into\r\nservice, must be true and there should be no suppression or false\r\nmention of the required information.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. In case of suppression, when the facts later come to the\r\nknowledge of employer, different courses of action may be adopted\r\nby the employer depending on the nature of fault as also the nature\r\nof default; and this Court has indicated that if the case is of\r\ntrivial nature, like that of shouting slogans at a young age etc.,\r\nthe employer may ignore such suppression of fact or false\r\ninformation depending on the factors as to whether the information,\r\nif disclosed, would have rendered incumbent unfit for the post in\r\nquestion.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14.1. However, the aforesaid observations do not lead to the\r\ncorollary that in a case of the present nature where a criminal\r\ncase was indeed pending against the respondent and the facts were\r\naltogether omitted from being mentioned, the employer would be\r\nobliged to ignore such defaults and shortcomings. On the contrary,\r\nas indicated above, a non-disclosure of material information itself\r\ncould be a ground for cancellation of employment or termination of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">services.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>15. We have also taken note of the fact that the decision of\r\nthe so-called honourable acquittal was rendered by the Trial Court\r\nas late as on 01.05.2008. This leads to the position that the\r\nrespondent, who entered the employment in CRPF in the year 2003\r\nwithout disclosing the fact of pendency of criminal case against\r\nhim, had continued to remain as a pending-trial accused person\r\nwithout the knowledge of the department, until the facts were\r\nnoticed and he was subjected to departmental proceedings.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>16. In the given set of facts and circumstances, where\r\nsuppression of relevant information is not a matter of dispute,\r\nthere cannot be any legal basis for the Court to interfere in the\r\nmanner that the employer be directed to impose ‘any lesser\r\npunishment’, as directed by the Division Bench of the High Court.\r\nThe submissions seeking to evoke sympathy and calling for leniency\r\ncannot lead to any relief in favour of the respondent.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>17. Accordingly, and in view of the above, this appeal succeeds\r\nand is allowed; the questioned part of the impugned order dated\r\n25.03.2019, i.e., paragraph 11 where the Division Bench interfered\r\nwith the quantum of punishment, is set aside. The writ petition\r\nfiled by the respondent shall stand dismissed without any order as\r\nto costs.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '86f436906aa2fb8ef49fb6ed0e793e80.jpeg', '8b2d44786e4ad2ad765ed94085b3d15a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-12', 1, '', '', '2022-04-11 18:07:55', '2022-04-12 22:34:08'),
(1555, 'PoEMavOmrnB19ULDPrXZraXBu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Insecticides Act, 1968. Denial of right to get sample re-analyzed by Central Insecticides Laboratory renders criminal proceedings unsustainable and liable to be quashed. Telagana High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ram Krishna Mudholkar Vs The State of Andhra Pradesh and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 2936 of 2013 decided on 21 February 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Chillakur Sumalatha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Seeking to quash the proceedings that are initiated against the petitioner, who is arrayed as accused No.3 in C.C.No.784 of 2012 that is pending on the file of the Court of I Additional Chief Metropolitan Magistrate, Nampally, Hyderabad, the petitioner filed the present application. Learned counsel for the petitioner submits that the complaint itself is not maintainable as per the contents of the Insecticides Act, 1968 and therefore, continuation of proceedings against the petitioner, who is accused No.3 in the said Calendar Case, is unwarranted and therefore, the same has to be quashed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. On the other hand, learned Public Prosecutor submits that on analysis, the sample drawn was found to be misbranded and therefore, a complaint was lodged by the Agricultural Officer, Hyderabad, against the petitioner and others and therefore, the present petition is unsustainable.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The case of the complainant, as could be seen from the complaint, is that on 14.03.2011, the Agricultural Officer (Technical), Hyderabad, visited the premises of M/s. Vanasri Seeds Pvt. Ltd., which is located in D.No.3-6- 308/1, Hyderguda, Hyderabad and has drawn six insecticide samples. The samples drawn were duly sealed and packed, as provided under law and a report was also prepared. The said samples were sent to Insecticide Analyst for analysis. The Insecticide Analyst declared Fenazaquin 10% EC as misbranded. By the time the Analyst report was received, the sample got expired. Therefore, there was no chance for reanalysis of the sample. Thus, the accused including the petitioner, who is arrayed as accused No.3, have committed the offences punishable under Section 29(1)(a) of the Insecticides Act, 1968. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The one and only point urged by the learned Senior Counsel is that by the contents of the complaint itself it is clear that there was no chance for reanalysis of the sample as by the time Analyst submitted his report, the sample got expired and thus, the right of the petitioner/A.3 for getting the sample reanalyzed was lost and therefore, on the principle of violation of statutory right, further proceedings are unsustainable. Learned counsel brought to the notice of this Court the contents of Section 24 of the Insecticides Act. As per the said provision, there is every necessity on the part of the Insecticide Analyst to submit his report to the Insecticide Inspector within a period of thirty days from the date the sample was submitted to him for analysis. It is also laid down that the Insecticide Inspector has to deliver one copy of the report to the person from whom the sample was taken. It is further narrated that the said person, within a period of 28 days from the date of receipt of copy of the report, can exhibit his intention to adduce evidence in contravention of the report. Section 24(4) of the Insecticides Act, 1968, further states that when such person exhibits his intention to adduce evidence in contravention of the Insecticide Analyst report, the Court may on its own motion or in its discretion at the request either of the complainant or of the accused, cause the sample of the insecticide sent for test or analysis to the Central Insecticide Laboratory.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. A crucial point which requires a mention here is that by Act 23 of 2000 which came into effect from 05.08.2000, by which certain amendments were made to Insecticides Act, 1968, the time to submit report by Insecticide Analyst to Insecticide Inspector has been reduced from sixty days to thirty days. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. Though Section 24 of the Insecticides Act, 1968, appears to be identical to Section 13(2) of the Prevention of Food Adulteration Act, 1954, which is to be read with Rule 7 of Food Adulteration Rules, yet there is no provision in Food Adulteration Act of serving of copy of Analyst report to the person from whom the sample is drawn before the complaint is lodged. However, under Section 24 of the Insecticides Act, 1968, such a facility is provided. Section 24(2) of the Insecticides Act, 1968, clearly lays down that the Insecticide Inspector on receipt of the report from the Insecticide Analyst deliver one copy of the report to the person from whom the sample was taken. However, in the case on hand, the Agricultural Officer, who presented the complaint made a clear mention that by the time Analyst report was received, the sample got expired. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. Catena of decisions of the Hon’ble Apex Court and this Court emphasizes that there is every requirement that the samples drawn be tested either by the State Analyst notified for that purpose or by the Central Analyst within its shelf life. The words ‘shelf life’ and ‘best before date’ are well explained under the provisions of the Food Adulteration Act. Submitting that in similar situations, the Hon’ble Apex Court held that the proceedings are unsustainable as the valuable right of the accused for getting the sample reanalyzed is lost due to the acts of the complainant, learned counsel for the petitioner relied upon three decisions.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. Section 24 of the Insecticides Act makes a clear mention that the report of the Insecticide Analyst is a conclusive proof unless and until it is challenged and when it is challenged and the report of the Central Insecticides Laboratory is produced, the report of the said Laboratory would be a conclusive proof. Thus, it is clear that the report of the Central Insecticides Laboratory supersedes the report of the Insecticide Analyst. The same is the position as envisaged under Section 13(4) of the Prevention of Food Adulteration Act. Thus, it can undoubtedly be held that getting sample reanalyzed by Central Insecticides Laboratory is a valuable statutory right which is conferred upon the persons against whom accusations are proposed to be made before the Court of law. When such a right is denied, it can unhesitatingly be held that such proceedings are unsustainable and cannot be permitted to be continued putting the accused to sufferance. The ultimate conclusion that would be drawn even after conducting trial would be that the accused are liable to be acquitted basing on the technical error and the mistake committed by the prosecuting agency. Therefore, this Court is of the view that there exist justifiable grounds for quashing the proceedings as sought for by the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. In the result, the Criminal Petition is allowed. The proceedings that are pending against the petitioner/A-3 in C.C.No.784 of 2012 before the Court of I Additional Chief Metropolitan Magistrate, Nampally, Hyderabad, are hereby quashed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. As a sequel, miscellaneous applications, if any, pending shall stand closed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '81f15d174f30fe8764b445bc8d92a3ff.JPG', '4751c17dcb0f982434aa8c6a3affe6f6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-18', 1, '', '', '2022-04-11 18:40:29', '2022-04-18 09:20:30'),
(1561, '4Yu4namgwRgdOQGGNfWGJuMp4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land Reforms Act. Though Civil Courts cannot decide question of tenancy, genuineness of the tenancy claim can be gone into to avoid unnecessary reference to Tribunal. Kerala High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Annamma Poithottatil Zacharia and others Vs P.V. Varkey and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>OP (C) 2024 of 2021 decided on 8 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A. Badharuden</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The respondents herein are the plaintiffs in the above\r\nSuit. The petitioners filed I.A.No.10/2021 claiming that the\r\npetitioners, being the legal-heirs of one Zachariah, got tenancy <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">right in respect of 29 cent (15 cent and 14 cent), out of the total\r\nextent of the plaint schedule property. Thus a reference under\r\nSection 125(3) of the Land Reforms Act was sought for, so as to\r\nadjudicate the said claim by the Land Tribunal.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. However, the learned counsel for the petitioners placed\r\na decision reported in [2008 (1) KLT SN 49], Madhavi Amma v.\r\nKesavan, and argued that when question of tenancy is raised by the\r\ndefendants and an issue is raised, it is not necessary for any party to\r\nfile any application for referring the question of tenancy to the\r\nLand Tribunal for consideration and non filing of an application\r\nbefore the Land Tribunal is not a ground for rejecting the request\r\nfor reference. He also pointed out that tenancy right shall be\r\nreferred to the Land Tribunal and the civil court has no jurisdiction\r\nto decide the same.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. Whereas in the decision reported in E.Keshava Bhat v.\r\nSubraya Bhat\'s case (supra), a Full Bench of this Court comprised\r\nof 5 Judges, while dealing with reference under Section 125(3) of\r\nthe Land Reforms Act, held that in a Suit for injunction, no\r\nquestion of tenancy or rights of a tenant arises and reference to the\r\nLand Tribunal is not called for.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Even in the decision in Madhavi Amma v. Kesavan\'s\r\ncase (supra), relied on by the learned counsel for the petitioners, the learned Single Judge of this Court concurred with the earlier\r\ndecisions and held that there may be several other instances\r\nwhere reference to the Land Tribunal is not only\r\nunnecessary but also unwarranted. In many cases reference\r\nmade to the Land Tribunal would be a futile exercise and in\r\nsuch cases also the civil court is not bound to refer the question\r\nof tenancy raised by the defendant to the Land Tribunal.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Thus the law emerges is that, simply because a\r\ncontention was raised in the written statement, there is no necessity\r\nfor the court to refer the same and the courts have the power to\r\ndecide whether the claim made in the written statement requires\r\nadjudication having regard to the frame of the suit, contentions in\r\nthe written statement and also the claim of tenancy is having\r\nsustenance, prima facie. In case, prima facie, the Court satisfies\r\nthat the claim of tenancy is bogus and baseless, the Court shall\r\nrefuse reference and if the claim found to be prima facie\r\nsustainable on an evaluation of the facts of the case, the court shall <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">refer the same to the Land Tribunal. It is true that the Civil Courts\r\ncannot decide the question of tenancy. However, the Civil Courts\r\ncan decide the genuineness of the claim to avoid reference of the\r\nclaim for tenancy without considering its merits, as observed\r\nabove.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. Here, as per the impugned order, the learned Munsiff\r\nfound that as per the patta issued in favour of Sri P.P.Varkey, the\r\nGovernment assigned land in favour of Sri P.P.Varkey on\r\nconditions, in the year 1975. As per Section 74 of the Kerala Land\r\nReforms Act, creation of tenancy from 01.04.1964 is prohibited.\r\nTherefore, it was found that prior to issuance of patta under the\r\nLand Assignment Act, the Government was the owner of the\r\nproperty and, therefore, the contention raised by the legal-heirs of\r\nZachariah, who is none other than the son of Sri P.P.Varkey\r\nclaiming tenancy right over 21 cents of land to Zachariah, is not\r\nprima facie sustainable. This is the context in which the learned\r\nMunsiff dismissed the application. Thus, it appears that prior to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">issuance of patta under the Land Assignment Act in favour of Sri\r\nP.P.Varkey, the property was vested with the Government and Sri\r\nP.P.Varkey not claimed tenancy right in respect of the property. If\r\nso, it is quite unbelievable to hold that Zachariah, the son of Sri\r\nP.P.Varkey, obtained tenancy right in respect of the property. Thus,\r\nprima facie the conention of tenancy raised by the\r\ndefendants/petitioners shall not sustain and, therefore, the learned\r\nMunsiff rightly negatived the said contention. In view of the\r\nmatter, the Original Petition is liable to be dismissed, since the\r\norder does not suffer from any perversity, illegality or arbitrariness.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Accordingly, this Original Petition is dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '143a5da2c1ca3d467878b1b043600b59.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-15', 1, '', '', '2022-04-13 19:06:25', '2022-04-14 22:16:19');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2964, 'd3oLr8sToEuNiR1fk878RHDtW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Rule 6 of Cenvat Credit Rules 2004 does not disallow common credit taken for manufacture of sugar even after 2015 amendment as bagasse is not a manufactured product. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Shamnur Sugars Limited Vs Commissioner of Central Tax and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 238 of 2018 decided on 17 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.R. Krishna Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is engaged in the manufacture of sugar and molasses, falling under Chapter Sub Heading No.17011190 and 17031000 of the First Schedule to the Central Excise Tariff Act, 1985 (for short “the said Act of 1985”) vide registration No.AAEFS1892AXM001. The petitioner is availing facility of Cenvat credit under the provisions of the Cenvat Credit Rules, 2004 (for short “the said Rules of 2004”) during the course of crushing sugar cane, bagasse is generated, which is used to generate electricity. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2.<span style=\"white-space: pre;\">	</span>It is contended that bagasse is an agricultural waste and cannot be considered as a manufactured product so as to attract the provisions of Rule 6 of the said Rules of 2004 is contemplated that where a manufacturer uses inputs and input services, on which Cenvat credit has been availed for manufacture of both taxable as well as exempted goods, the manufacturer is required to either reverse the proportionate Cenvat credit or pay an amount equal to 6% of the value of the exempted goods. Accordingly, the show- cause notices issued to the petitioner for various periods up to February, 2015 were dropped on the basis of the decision of the Apex Court in the case of UNION OF INDIA Vs. DSCL SUGAR LIMITED – 2015 (322) ELT 769 (SC), wherein it was held that bagasse is an agricultural waste and not a manufactured product and consequently, Rule 6 of the said Rules of 2004 was inapplicable to bagasse as well as electricity generated using bagasse by the petitioner.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>On 01.03.2015, Rule 6 of the said Rules of 2004 was amended by inserting two explanations. Explanation No.1 provided that non-excisable goods cleared for consideration shall also be considered to be exempted goods or final products/finished goods for the purpose of explanation of the said Rule 6 referred to supra. In pursuance of the same, the Central Board of Excise and Customs issued Circular No.1027/15/2016-CX dated 25.04.2016 clarifying that consequent to the amendment, the aforesaid Rule 6 w.e.f. 01.03.2015, bagasse would be considered as ‘exempted goods’.   Based on the aforesaid Circular, the respondents issued show-cause notice dated 21.10.2016 to the petitioner calling upon it to pay a sum of Rs.33,48,966/- for the period October-2015 to March-2016. The petitioner having contested the show-cause notice, the Assistant Commissioner of Central Tax passed an order dated 31.03.2017 dropping the proceedings against the petitioner. The said order having been challenged by the respondents- Revenue before the Commissioner of Central Tax (Appeals), the said appeal was dismissed by the Appellate Authority vide Order dated 09.08.2021 and the same has attained finality and become conclusive and binding upon the petitioner and the respondents.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 4.<span style=\"white-space: pre;\">	</span>ln the meanwhile, the 3rd respondent issued the impugned show-cause notice dated 30.03.2017 at Annexure-A calling upon the petitioner to pay a sum of Rs.9,53,787/- for the period from March-2015 to September-2015. So also, the 2nd respondent issued the impugned Statement of Demand at Annexure-B dated 25.10.2017 calling upon the petitioner to pay Rs.1,01,70,199/- for the period from October-2015 to June-2017. The said show-cause notice and statement of demand are assailed by the petitioner, who is before this Court by way of the present petition.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>The issue / question as to whether bagasse is an agricultural waste or a manufactured product so as to attract Rule 6 came up for consideration before the Apex Court in DSCL Sugar’s case supra, wherein it was held as under:- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>“ 1. Leave granted in all the special leave petitions. All these appeals are filed by the Revenue and the question which arises for consideration is common, namely, whether Bagasse which emerges as residue/waste of sugarcane is subjected to excise duty or not. The excitability of the aforesaid residue depends on the answer to the question as to whether it is a manufactured product and falls within the definition of “manufacture” as contained in Section 2(f) of the Central Excise Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">2</font></span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">.</span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif; white-space: pre;\">	</span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">The facts in brief are as under : the respondents herein are manufacturer of sugar and molasses falling under Chapter Sub-headings 17011190 and 17031000 respectively, of the First Schedule to the Central Excise Tariff Act, 1985. In the process of manufacture of sugar, sugarcane is crushed, its juice is extracted and Bagasse emerges as residue/waste of sugarcane. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">3.</span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif; white-space: pre;\">	</span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">It is not in dispute that Bagasse is otherwise classified under Chapter Sub-heading 23032000 of the First Schedule to the Central Excise Tariff Act, 1985 and attracts nil rate of duty. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">4.</span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif; white-space: pre;\">	</span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">However, show-cause notices were issued to the respondents herein stating that Bagasse would be subject to duty under the Central Excise Act, 1944, as “other products”. These show-cause notices were issued to the respondents in terms of the provision contained in Rule 6(3) of the CENVAT Credit Rules, 2004 demanding various amounts. The said show-cause notices were challenged by the respondents filing writ petitions in the High Court of Allahabad. The High Court has allowed [Balrampur Chini Mills Ltd. v. Union of India, 2012 SCC OnLine All 4519] these writ petitions holding that Bagasse being a waste and not a manufactured product, no duty is payable thereupon. For arriving at this conclusion, the High Court has also relied upon the judgment of this Court in Balrampur Chini Mills Ltd. [CCE v. Balrampur Chini Mills Ltd. Civil Appeal No. 2791 of 2005 sub nom CCE v. Star Paper Mills Ltd., 2010 SCC OnLine SC 60] decided on 21- 7-2010.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>The Revenue sought to cover the case under sub-clause (ii) as per which the process which is satisfied in relation to any goods in the section or Chapter Notes of the First Schedule to the Central Excise Tariff Act, 1985 would amount to “manufacture”. Here again, fiction is created by including those goods as amounting to manufacture in respect of which process is specified in the section or Chapter Notes of the First Schedule.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 9.<span style=\"white-space: pre;\">	</span>In the present case it could not be pointed out as to whether any process in respect of Bagasse has been specified either in the section or in the Chapter Notes. In the absence thereof this deeming provision cannot be attracted. Otherwise, it is not in dispute that Bagasse is only an agricultural waste and residue, which itself is not the result of any process. Therefore, it cannot be treated as falling within the definition of “manufacture” under Section 2(f) of the Act and in the absence of manufacture, there cannot be any excise duty. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">10.<span style=\"white-space: pre;\">	</span>Since it is not a manufacture, obviously Rule 6 of the CENVAT Rules, 2004, shall have no application as rightly held by the High Court.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>Since Bagasse is held not to be result of any manufacture, this appeal is also dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>As can be seen from the aforesaid judgment, the Apex Court clearly held that bagasse was agricultural waste and was not a manufactured product and consequently, the provisions of Rule 6 were not applicable to bagasse; the Apex Court further held that Rule 6 was also not applicable to Electricity generated from bagasse. Under these circumstances, the Demands made by the respondents on the petitioner in relation to the periods up to February, 2015 were dropped on the basis of the said judgment of the Apex Court in DSCL Sugar’s case supra.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>By Notification bearing No.6 / 2015 – CE(NT), various provisions of the said Rules were amended including Rule 6 supra w.e.f. 01.03.2015; after amendment, Rule 6 reads as under:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Explanation 1- For the purposes of this rule, exempted goods or final products as defined in clauses (d) and (h) of rule 2 shall include non- excisable goods cleared for a consideration from the factory.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>As can be seen from the aforesaid amendment, Explanation (1) was inserted, which provided that non-excisable goods cleared for consideration shall also be considered to be exempted goods or final products/finished goods for the purpose of explanation of the said Rule 6 referred to supra. In pursuance of the same, the Central Board of Excise and Customs issued Circular No.1027/15/2016-CX dated 25.04.2016 clarifying that consequent to the amendment the aforesaid Rule 6 w.e.f. 01.03.2015, bagasse would be considered as exempted goods.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>As can be seen from the aforesaid Circular, the respondents have referred to the judgment of the Apex Court in DSCL Sugar’s case supra, as well as the 2015 amendment to Rule 6 of the said Rules of 2004 for the purpose of directing the bagasse, which are non-excisable goods and are cleared for consideration from the factory need to be treated like exempted goods for the purpose of reversal of credit of input and input services in terms of Rule 6 of the said Rules of 2004; in other words, by virtue of the said Circular, the respondents sought to overcome the judgment of the Apex Court in DSCL Sugar’s case supra and invoke the 2015 amendment to Rule 6 for the purpose of making the said Rule 6 applicable to bagasse. As stated supra, pursuant to the said Circular, the respondents issued show-cause notices to various persons including the petitioner demanding payment for the period subsequent to 01.03.2015.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>The said Circular dated 25.04.2016 was challenged before the Division Bench of the Allahabad High Court in Balarampur Chini Mill’s case supra, which was disposed of on 12.04.2019, by holding as under:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>34.<span style=\"white-space:pre\">	</span>In light of the above we are of the considered opinion that in absence of Bagasse being a manufactured final product, the obligation of reversal of CENVAT Credit under Rule (1) of the CENVAT Credit Rules, 2004 is not attracted, and the ratio laid down in the judgement of the Hon\'ble Supreme Court in the case of Union of India v. DSCL Sugar Ltd. (supra) still holds the field. Rule 6 of the CENVAT Credit Rules would have no application for reversal of CENVAT Credit in relation to Bagasse. The Circular No. 1027/15/2016-CX, dated 25/04/2016, contained in Annexure - 1 to the writ petition to the extent that it includes Bagasse under the purview of the reversal of credit of input services in terms of Rule 6 of the CENVAT Credit Rules, 2004, as well as the impugned show cause notice dated 24/03/2017 contained in Annexure - 2, are hereby quashed. 35.<span style=\"white-space:pre\">	</span>The writ petition is accordingly allowed.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>As can be seen from the aforesaid judgment, the Allahabad High Court quashed the said Circular as well as the impugned show-cause notice; while doing so, the Allahabad High Court came to the categorical conclusion that despite the 2015 amendment to Rule 6 of the said Rules of 2004, bagasse were not manufactured products, but continued to remain agricultural waste and residue and that the judgment of the Apex Court in DSCL Sugar’s case supra, continued to apply and operate and govern bagasse even after the 2015 amendment. The High Court also held that the 2015 amendment was not applicable to bagasse, since it was not a manufactured product/goods and consequently, the said Circular dated 25.04.2016 was illegal and arbitrary and contrary to law and the same was accordingly quashed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>22.<span style=\"white-space:pre\">	</span>The aforesaid facts and circumstances clearly establish that the Circular dated 25.04.2016, which was the basis on which the respondents-Revenue issued the impugned Show cause notice and the impugned Statement of Demand has been quashed and finally rescinded/revoked/withdrawn by the respondents vide Circular dated 07.07.2022, thereby leading to the inescapable conclusion that the impugned Show cause Notice and Statement of Demand at Annexures-A and B deserve to be quashed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 23.<span style=\"white-space:pre\">	</span>The material on record also discloses that the show cause notice dated 21.10.2016 for the period October-2015 to March-2016 issued by the respondents to the petitioner was dropped and the appeal by the respondents was dismissed by the Appellate Authority on 09.08.2021. In this context, it is relevant to state that the impugned Statement of Demand at Annexure-B dated 25.10.2017 for the period October-2015 to June-2017 includes the aforesaid period in relation to the Show cause notice dated 21.10.2016, in respect of which the demand was dropped and the proceedings attained finality in favour of the petitioner. Viewed from this angle also, the said order dated 09.08.2021 passed by the Appellate Authority categorically holding that the 2015 amendment to Rule 6 was not applicable to bagasse or the electricity generated from bagasse having attained finality and become conclusive and binding upon the respondents, the impugned Show cause notice and Statement of Demand in relation to the same issue are clearly barred by the principles of “res judicata” and “issue estoppel” and on this ground also, the same deserve to be quashed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>24.<span style=\"white-space:pre\">	</span>The aforesaid facts and circumstances and the judgments referred to supra, clearly establish that bagasse is not a manufactured product and Rule 6 of the Cenvat Credit Rules, even after 2015 amendment is not applicable to bagasse nor to electricity generated from bagasse coupled with the fact that the Circular dated 25.04.2016 issued by the respondents pursuant to the 2015 amendment to Rule 6 having not only been quashed, but the same having been rescinded by the respondents by issuance of the Circular dated 07.07.2022 and consequently, the respondents did not have jurisdiction or authority of law to issue the impugned show cause notice and Statement of Demand, which deserve to be quashed.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i) Petition is hereby allowed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3f13d705f997e53b0c2259ba4fb89eef.JPG', 'bfa11e523b1d9b44d5168dfafb150ce3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-20', 1, '', '', '2023-05-19 14:02:54', '2023-05-20 10:51:55'),
(1559, 'DuIk1yAs9WaR2EkGxUU4xqnyR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mere participation of more than one accused does not constitute criminal conspiracy unless there was meeting of minds among the accused which resulted in crime. Karnataka High Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ratna Fakirgouda Patil Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 100437 of 2019 decided on 16 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.B. Prabhakara Sastry and Justice S. Rachaiah.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Brief facts of the case: PW1 has lodged a complaint and stated that, the deceased Fakirgouda was a permanent resident of Chikkanandihalli village of Bailhongal Taluk. He had wife and children and he was residing in a rented house at Channapur village, Bailhongal Taluk. The complainant is the wife of deceased Fakirgouda. The accused No.1 was the friend of the deceased and they were doing real estate business on partnership basis under the name and style as “Diamond Earth Land and Developers” at Kittur town. The said office was situated in a shop premises belonging to PW8 - Shankar Basappa Parappanavar. On 02.04.2015 at about 4.00 pm, accused No.1 had gone to the house of complainant in Indica car bearing registration No.KA.22/Z-3545 and called deceased to accompany him. The deceased Fakirgouda told him that, he would come after little while and asked accused No.1 to go ahead. Soon thereafter, the deceased Fakirgouda changed his dress and went on his motorcycle stating that he would go and meet accused No.1. Thereafter, the said deceased Fakirgouda made a phone call to his wife and informed her that, he was in Dharwad and going to Sirsi as he had some work there along with Accused Nos.1 and 2. He further told her that, he would come back if the work was over on the same day, otherwise, on the next morning. Again, at about 10.00 pm on the same night, deceased Fakirgouda had called his wife i.e. P.W.1 over the phone and enquired about the wellbeing of his children. On next day morning, when the complainant tried to contact the deceased through phone on several times and phone was ringing but, the deceased did not pick up the calls. PW.1 was  very  anxious  as  her  husband  did  not  receive  any calls.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Immediately, she called accused No.1 and enquired about her husband. The said accused No.1 did  not  reply  her satisfactorily. Thereafter, PW.1 has informed the said fact to her brother-in-law, i.e. PW.4 and both were trying to search the deceased. As they could not get any clues about the deceased, on 05.04.2015 at about 8.15 pm, PW.1 lodged a complaint stating that, her husband was missing. The police have registered the case in Crime No. 53/2015 and the same is marked as Ex.P1. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>On 06.04.2015, when PW.1 and PW.4 were searching the deceased in Kittur town, they met PW.7 at his mobile shop and they were told that, on 02.04.2015, deceased Fakirgouda had gone along with accused Nos.1 and 2 in a car to Sirsi, by leaving his motorbike at his shop and thereby the said PW.7 has handed over the motorcycle to PW.4. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Such being the fact, on 10.04.2015, at about 3.00 pm, PW.6 informed PW.1 and PW.4 that, the accused Nos.1 and 2 had killed deceased Fakirgouda. Further, he told them that, he had  overheard the conversation that had taken place between accused Nos.1 and 2 at the hotel. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Based on the information received by PW.1 and PW.4, PW.1 lodged a written complaint to the police on 10.04.2015, suspecting the act of accused Nos.1 and 2 in connection with the missing of the deceased. The same complaint is marked as  Ex.P2 and the crime came to be registered in Crime No.56/2015.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26. As regards, motive, is concerned, it is true that, in a case relating to circumstantial evidence, motive assumes great of 2019 importance. However, in each and every case, it is not incumbent on the prosecution to prove the motive for the crime. Often, motive is indicated to heighten the probability of the offence, that the accused was impelled by that motive to commit the offence. Proof of motive only adds to the weight and value of evidence adduced by the prosecution. If the prosecution is able to prove its case on Motive, it will be a corroborative piece of evidence. But, even if the prosecution has not been able to  prove its case on Motive, that will not be a ground to throw the prosecution case nor does it corrode the credibility of  prosecution case. Absence of motive only demands careful scrutiny of evidence adduced by the prosecution.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Though PW1 has stated that her husband was working as a partner along with accused No.1 in a real estate business, no piece of documents have been produced by the prosecution to show that he was working as a partner of the real estate business. Even though, the prosecution has further stated that, the motive for the murder is that, the accused No.1 has got the property registered in the name of his wife instead of including the name of the deceased as partner in the sale – deed. The deceased had advanced the accused No.1 a sum of `2 lakhs towards the purchase of Property. As the accused No.1 has not included the name of the deceased in the sale – deed there was a rift between the accused No.1 and deceased.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>27. As regards, recovery and discovery of the material objects and dead body is concerned, the submission of the learned counsel for the Appellant is that, PW3 is the panch witness and he has signed as many as 15 exhibits. Though, he has supported the case by giving cogent evidence, it would be very difficult for the court to believe the evidence of this witness. The I.O. has summoned PW3 and CW2 by issuing notice to them to be as panch witnesses under Ex.P12 and he has recovered mobile phones produced by accused No.1 and also accused No.2. The said two mobiles have been marked  as MO.23 and MO.24. It is the case of the prosecution that the accused Nos.1 and 2, their voluntary statement which led to the discovery of dead body of the deceased, where they have dumped the body to the well. The voluntary statement of the accused No.1 is marked as Ex.P-93 and similarly another voluntary statement of accused No.2 is marked as Ex.P-94. PW.19 crane operator, with the help of crane he lifted the dead body from the well on assistance being made by PW.13. PW.13 and PW.19 have supported the case of the prosecution and stated that the accused have shown the place where the dead body was dumped. On their instruction, they have discovered the dead body and lifted it out from the well. Hence, PW.3 cannot be considered as stock – witness.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The principle is well settled that provision of Section 106 of Evidence Act itself for unambiguous and categorical terms lays down that when any fact is especially within the knowledge of person, the burden of proving the fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted the company. He must offer an explanation which appears to the court to be probable and satisfactory. If he does so, he must be held to  have discharged his burden. If he fails to offer an explanation, on the facts within his special knowledge, he fails to discharge the burden cast upon him by section 106 of the Evidence Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>28. In the light of the above observation, the present case on hand is very clear from the reading of the evidence of PW-1, PW-3, PW-13 and PW-19 which clearly indicates that the accused Nos.1 and 2 have shown the place where they have dumped the dead body. The place is an isolated place; nobody could easily identify the dead body in that well. As per the evidence, except accused Nos.1 and 2, no other persons have shown the place of dead body which was dumped. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">29. To corroborate the above circumstances, Exs.P-81 to P84, CDRs of deceased, accused Nos.1 and 2 when categorically shows the place of occurrence. The signals of the mobile are shown in and around Murudeshwar vicinity. Ex.P-34 is the spot mahazar where the accused Nos.1 and 2 have shown the place of occurrence. Under the said spot-cum-seizure panchanama, the Investigating Officer collected mud samples and normal mud for the purpose of examination. PW-22 - the Scientific Officer i.e., office of RFSL has submitted a report after examining the MOs No.34 and 35 and submitted their report as Ex.P-63 and </font></span><font face=\"Calibri, sans-serif\">P-64 which clearly indicates that the mud contains blood is of human origin. </font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>30. In the light of the above observation, we are of the opinion that, the accused should have offered explanation as to what has happened to the deceased and how they are not connected to the crime. In spite of opportunity having been given to them under section 313 of Cr.P.C., the accused Nos. 1 and 2 have not explained properly as to what has happened and when they departed the company of the deceased. Except, mere denial nothing has been forthcoming from their side to disbelieve the prosecution story. Hence, it is necessary to draw adverse inference that, the accused have committed an offence and caused disappearance of the dead body. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>31.<span style=\"white-space: pre;\">	</span>Conclusion:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(a)<span style=\"white-space: pre;\">	</span>The accused Nos.1 and 2 on the date of incident had been to the house of PW-1 and asked deceased to accompany them. The deceased told them to go ahead and he would come and join the company of accused Nos.1 and 2. The same facts have been proved through the evidence of PW-1. Though PW-7 is the witness to the last seen theory, he has not supported the case of the prosecution. However, the documentary evidence, such are, call detail records which are marked as Ex.P-81 to P85 have clearly indicated that as on the date of incident, the accused Nos.1 and 2 and deceased were together as per the tower location near Murudeshwar.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(b)<span style=\"white-space: pre;\">	</span>After the arrest of accused Nos.1 and 2, the police have recorded their voluntary statement and the same has been recorded as Ex.P-93 & P94. On their disclosure statement, the dead body of the deceased had been discovered.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(c)<span style=\"white-space: pre;\">	</span>It is not in dispute that, the dead body was found in the well which was an isolated place and no other person could see easily except those who had personal knowledge where they dumped the dead body in the well. In this case, Accused Nos.1 and 2 have showed the place, where they have dumped the  dead body. The same has been corroborated by the evidence of PW.13 and PW.19 who are the independent witnesses.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(d)<span style=\"white-space:pre\">	</span>Further, on their disclosure statements, car, mat of the car and iron rod which is said to have been used for the commission of offence have been recovered. PW-3 has  supported the case with respect to the said seizure mahazar.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(e)<span style=\"white-space:pre\">	</span>The mat containing blood, the iron rod containing blood, the mud containing blood are all examined by the FSL officers in different capacities and they have submitted their reports which are marked as Ex.P-62 & P-69 respectively. The scientific  officers are consistent in their evidence, the blood stains on the above three objects would indicate that it is of human origin.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(f)<span style=\"white-space:pre\">	</span>A careful scrutiny of the evidence led in the matter though proves that the prosecution could able to prove the guilt of the accused No.1/respondent No.2 for the offence punishable under Sections 302 and 201 of the IPC, but hardly there is any evidence to establish that there was a criminal conspiracy among the accused to commit the offence. Unless there is cogent evidence to show that there was meeting of minds among the accused, which resulted in a criminal conspiracy, merely because there was participation of more than one accused in the commission of the crime, it cannot be held that there was a criminal conspiracy behind it. As such, we have no hesitation to hold that the prosecution has failed to prove the alleged guilt against the accused No.1/respondent No.2 for the offence under Section 120(B) of the IPC.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>In the light of the above observation, we are of the considered opinion that, the prosecution has proved the case beyond reasonable doubt and that the accused Nos.1 and 2 have jointly committed a0n offence under sections 302 and 201 read with section 34 of IPC. Since accused No.2 has died during the pendency of the case, the appeal is filed against respondent  No.2 / accused No.1 only. Accordingly, we pass the following</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>The Appeal filed by the Appellant is allowed-in-part.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>The impugned judgment and order dated 05.09.2019 passed by the learned X Additional Sessions Judge, Belagavi, in S.C.No.175/2015, acquitting the accused No.1 – Nagangouda Shivangouda Patil (respondent No.2) for the offences punishable under Sections 302 and 201 of Indian Penal Code is hereby set-aside.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space:pre\">	</span>The Accused No.1 is convicted for the offence under Sections 302 and 201 of Indian Penal Code.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iv)<span style=\"white-space:pre\">	</span>The acquittal order passed by the X Additional Sessions Judge, Belagavi, in S.C.No.175/2015 dated 05.09.2019 with respect to section 120(B), 506 r/w 34 of IPC is confirmed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(v)<span style=\"white-space:pre\">	</span>Heard both side on sentence.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(vi)<span style=\"white-space:pre\">	</span>Accused No.1 - Nagangouda Shivangouda Patil is sentenced to undergo rigorous imprisonment for life for the offence punishable under section 302 of IPC and to pay a fine of `50,000/- (Rupees Fifty Thousand only), in default, the accused No.1 shall undergo further sentence of simple imprisonment for one year.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(vii)<span style=\"white-space:pre\">	</span>Further, the Accused No.1 shall undergo simple imprisonment of 5 years for the offence punishable under section 201 of IPC and pay a fine of `5,000/- (Rupees Five Thousand only), in default of payment of fine, he shall undergo six months simple imprisonment.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(viii)<span style=\"white-space:pre\">	</span>All the sentences shall run concurrently.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ix)<span style=\"white-space:pre\">	</span>It is directed the Registry to deliver a copy of this judgment to the accused No.1 free of cost.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(x)<span style=\"white-space:pre\">	</span>Registry to transmit a copy of this judgment along with Sessions Court records to the concerned Sessions Court, forthwith, for doing the needful in the matter in securing the accused for serving the sentence and in accordance with law.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(xi)<span style=\"white-space:pre\">	</span>Further, it is directed the registry to forward a copy of this order to DG and IGP forthwith to take suitable action against the Investigation Officer.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '99e1844277f115ab526a46ca3cd26e69.JPG', '6943a1955d69e55cf04ca4321c2d157c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-13', 1, '', '', '2022-04-12 23:05:45', '2022-04-17 08:22:25');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1562, 'AqWFx0wSidxoB5JBilXZDfLMF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When fraud is admitted, affording opportunity of being heard is nothing but useless formality especially where consequences would remain unchanged. Jammu and Kashmir High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gulzar Ahmad Bhat Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WP (C) 1506 of 2021 decided on 28 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dhiraj Singh Thakur.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. The petitioner applied for allotment of ‘Regular & Rural Retail Petroleum Outlet’ at location Vidday Tehsil Srigufwara District Anantnag, Kashmir. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. One of the requirements in the application as per the advertisement/Brochure was that the applicant should be possessed of land measuring 732 Sq. metres. The land in question should have been either owned and possessed by the applicant or on lease for a minimum period of nineteen years approximately.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The petitioner also participated in the process by submitting, an application form in December 2018, annexing therewith the documents in respect of 1 Kanal & 10 Marlas of land obtained by him through a validly executed lease deed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. The aforementioned piece of land was evaluated by Land Evaluation Committee, which visited the spot on the 9th January, 2020. The field verification, by the ‘Field Verification Committee, was also conducted on 24th January 2020. The name of the petitioner was recommended by the aforementioned two committees’ and the letter of intent was issued on 22.02.2020. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Subsequently, it appears, that a complaint was received by the Indian Oil Corporation, alleging that the petitioner had sub-leased a portion of the offered land and was thus, not fulfilling the requirements as per the Brochure. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Upon the receipt of the complaint, vide communication dated 26th May 2020, the petitioner was conveyed that a complaint had been received against him, and therefore, he should not proceed further with any activity till the investigation was over in that regard. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. The matter was referred to a two member committee, who, as per the stand taken by official respondents, investigated the matter and concluded that the petitioner had executed a sub-lease in favour of a third party namely Umar Farooq, in respect of land measuring 15 Marlas and, therefore, it was held that the petitioner got selected by fraudulent means and in-fact misrepresented and suppressed the material information at the time of inspection conducted by Land Evaluation Committee, by identifying the entire chunk of land including that portion which had actually been leased out to a third party. It was based upon the report of the aforesaid committee that finally the Letter of Intent, issued in favour of the petitioner was cancelled.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. Learned counsel appearing on behalf of petitioner submits that the order impugned dated 20th July 2021, whereby the Letter Of Intent, issued in favour of petitioner was cancelled, is liable to be set aside firstly, on the ground that the Principles Of Natural Justice, had been violated and that no opportunity of being heard was granted to the petitioner. Secondly, it was urged that the cancellation order was based upon a complaint which was filed beyond one-month period prescribed in the Advertisement/ Brochure.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. On the other hand, Mr. H. Aman Ali, learned Dy AG appearing on behalf of respondents, submitted that the selection of candidates for allotment of ‘Regular & Rural Retail Petroleum Outlet’ was conducted strictly in accordance with terms and conditions prescribed in the Brochure. Further that it was clearly stated in the said Brochure that ‘If any statement made in the application or in the documents enclosed therewith or subsequently submitted in pursuance of the application by the candidate, at any stage, was found to have been suppressed/misrepresented or were found to be incorrect or false and frivolous, then the application of such a candidate was liable to be rejected without assigning any reason and in case the applicant had been appointed as a dealer, the dealership would be liable to be terminated. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. Admittedly, on the date when the petitioner had submitted his application form for consideration, he had also produced the deed reflecting that he had obtained lease for a portion of land measuring approximately 732 metres which would satisfy the requirement of advertisement notice. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. It is also admitted that before LOI could be issued in favour of the petitioner and before actual inspection by the Field Verification Committee, conducted on 24th January 2020, and the Land Valuation Committee, on 9th January 2020, the petitioner had already created the sub-lease in favour of third party namely Umar Farooq which fact came to be noticed by the Corporation on the basis of an anonymous complaint in May 2021. This fact was also got verified by Committee of the Corporation through the revenue agencies which supported the allegation made in the complaint. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. The Revenue Authority had opined that the petitioner had in-fact created a sub-lease in favour of one person namely Umar Farooq, which fact was suppressed from the Corporation. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. What is important to notice at this stage is the fact that upon creation of the sub-lease in favour of one Umar Farooq, the petitioner would be left with land which would otherwise not satisfy the requirement of the advertisement/Brochure. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. Learned counsel appearing on behalf of petitioner laid a lot of emphasis on the point that the sub-lease so created was cancelled on 29th May 2020, through a registered deed and, therefore, the entire chunk of land was now available for the Retail Petroleum Outlet. It was, therefore, prayed that now after the cancellation of the sub-lease there was no cause or reason for the respondents to not accept the land as it was originally offered. This argument, however, is not tenable for the reason that the act of cancellation of the sub-lease created by the petitioner was an act which was done after the factum of creation of such a sub-lease came to the notice of the Corporation. The terms and conditions of the selection are such that same cannot be given a goodbye together. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17. A deliberate act of deception or any act of concealment by the petitioner, with a view to secure an unfair advantage, would necessarily invite the consequences which have very clearly been spelled out in the terms and the conditions of the Brochure to the effect that even if the petitioner had been allotted, formally, a dealership, the said dealership would be liable to be terminated if at any point it was pointed out that there was any concealment or misrepresentation by the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. Coming to the argument of learned counsel appearing for the petitioner, that the Principle of natural justice, had been violated, it can be said that law with regard to the same is no longer res-integra. Since the facts are so clear and the factum of creation of sub-lease is admitted, affording an opportunity of being heard to the petitioner at this stage would be nothing but a useless formality where the consequences would remain unchanged. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21. Admittedly, on the date of inspection by the ‘Land Evaluation Committee’ & ‘Field Verification Committee’, the petitioner had concealed the factum of creation of sub-lease from the Field Verification Committee, as also from the Land Evaluation Committee, based upon which the LOI was issued. The Corporation, therefore, was well within its right to take an appropriate decision which in the facts and circumstances of the case cannot be said to be perverse, rather was justified and permissible as per the conditions prescribed in the Brochure.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 22. The second argument of the learned counsel for petitioner was that no complaint could have been entertained beyond the period of one month as prescribed in terms of Clause 18 of the Brochure. The prescribed period of one month in terms of Clause-18 of the Brochure, cannot be said to be, in any case, a mandatory clause which would undermine the action taken by the Corporation, given the admitted facts which have been noticed hereinabove. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23. Be that as it may, no case for interference is made out in the present petition, which is accordingly, dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '93fe42102a132262d0eb549e8ed8ed06.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-13', 1, '', '', '2022-04-13 19:24:25', '2022-04-14 19:54:26'),
(1563, 'xmdmB8ippKKMDNWjjOddOpbEV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Citizen and private persons can not adopt lifting the corporate veil test. They can question identify of the corporate bodies only through courts of law. Kerala High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Great India Estate Pvt Ltd Vs Union Bank of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WP (C) 5672 of 2022 decided on 18 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N. Nagaresh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is M/s.Great India Estate Private\r\nLimited, a Company incorporated under the Companies Act,\r\n1956 in the year 1991. The petitioner seeks to quash Ext.P3\r\nand to declare that the respondents cannot withhold or\r\nfreeze the account of the petitioner without any legal\r\ngrounds.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioner holds a Current Account bearing\r\nNo.395801010036375 with the 1st respondent-Bank, in its\r\nChalai Branch. The petitioner transferred an amount of ?1\r\nCrore from its own account to the said Current Account on  01.02.2022. The amount was not accounted. When\r\ncontacted, the 2nd respondent-Branch Manager required the\r\npetitioner to furnish fresh KYC details, which were provided\r\non 03.02.2022. The Current Account, however, was not\r\nmade operational.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The petitioner had to make payment to Suppliers.\r\nHence, the petitioner entrusted cheques to the 2nd\r\nrespondent-Branch Manager on 10.02.2022. The petitioner\r\nwas initially asked to wait for two more days to make the\r\naccount operational. To the surprise of the petitioner, on\r\n14.02.2022, the petitioner was informed as per Ext.P3 that\r\nthe debit facility in the Account has been disabled and hence\r\nthe transfer cannot be processed and transferred.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The petitioner states that they have to complete a\r\nHousing Project by June, 2022 as per the orders of the Real\r\nEstate Regulatory Authority (RERA). Amounts have to be\r\npaid to Suppliers and wages are to be paid to employees. If\r\nsupply of materials are delayed, it will affect building\r\ncompletion and the petitioner will have to face adverse <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">orders from RERA and litigations by Home Buyers. The\r\nrespondents are therefore compellable to operationalise the\r\nCurrent Account, contended the learned counsel for the\r\npetitioner.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The respondents contested the writ petition. The\r\nrespondents stated that Mr. Iqbal Elias and Najeeb Elias\r\nMohammed are the Directors of the petitioner-Company.\r\nLater, another Public Limited Company was incorporated by\r\nname Green Gateway Leisure Limited. Both, Iqbal and\r\nNajeeb, among others, were the promoters of Green\r\nGateway Leisure Limited also. Both the entities are\r\ninterconnected. Mr. Iqbal and Mr. Najeeb are grossly in the\r\nmanagement of green Gateway Leisure Limited. They have\r\ndeep and pervasive control over both the companies.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The respondent-Bank had granted a term loan of\r\n?25 Crores to the Green Gateway Leisure Limited. The\r\nrepayment of the said advance was defaulted. The\r\nrespondents therefore filed OA No.417/2018 before the Debt\r\nRecovery Tribunal-1 Ernakulam. Later, the respondents <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">approached the National Company Law Tribunal, Kochi filing\r\napplication under Section 7 of the Insolvency and Bankruptcy\r\nCode, 2016. When the corporate guarantor filed appeal\r\nbefore the National Company Law Appellate Tribunal, the\r\nparties were directed to settle their liability within six months.\r\nThe respondents therein, however, colluded together and\r\nstarted routing the funds through several subsidiary\r\ncompanies including the petitioner-Company.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. The respondents argued that the diversion of\r\nfunds was with the intention to defraud the creditors including\r\nthe 1st respondent-Bank. Now, the Bank has initiated IBC\r\nproceedings against the personal guarantors of Green\r\nGateway Leisure Limited. It is to defeat these litigations that\r\nfunds were routed through the petitioner-Company.\r\nTherefore, the respondents invoked powers available to them\r\nunder Section 171 of the Indian Contract Act and disallowed\r\nthe withdrawal of the amounts. This was done invoking the\r\npower available to the Bank to lift the corporate veil of the\r\ncompany in order to exercise the right of banker’s lien. </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The learned counsel for the petitioner relied on the\r\njudgment of this Court in Lonankutty Antony v. Joint\r\nRegistrar of Co-operative Societies and others [2016 (2)\r\nKLT 281] wherein this Court held that the respondent-Bank\'s\r\naction of retaining or withholding husband\'s title deeds even\r\nafter his clearing of loan is per se illegal and arbitrary in a\r\ncase where husband was not a party to the loan transaction\r\nto his wife. The learned counsel for the petitioner further\r\nrelied on a Division Bench judgment of the Hon\'ble\r\nKarnataka High Court in Vijaya Bank and another v.\r\nNaveen Mechanised Construction (P) Limited [AIR 2004\r\nKAR 199] wherein the Division Bench held that it is only in\r\nexceptional cases and that too only the courts are entitled to\r\nlift the veil of corporate entity. A Bank is not entitled to say\r\nthat two distinct companies incorporated under the\r\nCompanies Act are one and the same. The learned counsel\r\nfor the petitioner also relied on the judgment of the Hon\'ble\r\nGauhati High Court in Tilendra Nath Mahanta v. United\r\nBank of India [2002 (1) KLT SN 45] to contend that bankers <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">lien can arise only over things belonging to a customer and\r\nheld as security by Bank and not over any fixed deposits in\r\nthe hands of the Bank.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>9. The learned Standing Counsel for the respondents\r\nplacing reliance on the judgment of the Apex Court in\r\nSyndicate Bank v. Vijay Kumar and others [(1992) 2 SCC\r\n330] argued that the general lien of bankers would enable\r\nthe Bank to hold lien over the accounts of the petitionerCompany for the liabilities of the sister company. In fact, the\r\npetitioner-Company as well as the Company named Green\r\nGateway Leisure Limited are one and the same and the\r\ncorporate veil of the petitioner-Company is liable to be lifted\r\nin view of the judgment of the Hon\'ble Apex Court in Delhi\r\nDevelopment Authority v. Skipper Construction\r\nCompany Private Limited and another [(1996) 4 SCC 622].\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. The learned Standing Counsel for the\r\nrespondents, relying on the judgments of the Hon\'ble High\r\nCourt of Calcutta in Star Battery Limited and another v.\r\nState Bank of India and others [2019 SCC Online Cal 282] </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and in Mohan Insurance and Financial Consultancy\r\nPrivate Limited v. HDFC Bank Limited [2019 SCC Online\r\nCAL1949], argued that in order to exercise the powers of the\r\nbanks on general lien, the banks are entitled to competent to\r\nlift corporate veil of the petitioner-Company. As the Bank\r\nfound that the petitioner-Company as well as the Green\r\nGateway Leisure Limited are one and the same inasmuch as\r\nthey are controlled by the same persons, the respondentBank extended its bankers lien to the current account of the\r\npetitioner-Company, which is absolutely legal and justifiable.\r\nThe writ petition is therefore without any merit and it is liable\r\nto be dismissed, contended the Standing Counsel. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12. The grievance of the petitioner is that the\r\npetitioner-Company holds a current account with the 1st\r\nrespondent-Bank and it has no liability other than if any\r\nrelated to the current account held by them. The respondents </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">have frozen the current account of the petitioner on the\r\nground that another company named Green Gateway\r\nLeisure Limited has liabilities with the respondent-Bank and\r\nthe Directors of the petitioner-Company are also the\r\nDirectors of the Company named Green Gateway Leisure\r\nLimited. This Court finds that the petitioner-Company and the\r\nCompany named Green Gateway Leisure Limited are two\r\ndistinct companies incorporated under the Companies Act,\r\n1956. An Incorporated Company is an independent legal\r\nentity distinct from its shareholders and Directors. Therefore,\r\nthe 1st respondent-Bank cannot ordinarily hold or freeze the\r\naccounts of the petitioner-Company for the liabilities of the\r\nother Company. The powers of the banks to have general\r\nlien cannot be extended to freeze a current account of one\r\nlegal entity for any default or liability of a different corporate\r\nentity.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. The learned Standing Counsel for the\r\nrespondents, on the other hand, contended that under\r\nSection 171 of the Contract Act, the Bank has a general lien. Since the petitioner-Company and the defaulter company\r\nnamed Green Gateway Leisure Limited are owned and\r\ncontrolled by the same persons, the Bank can freeze or\r\nwithhold the current accounts of the petitioner-Company in\r\nexercise of its powers of general lien.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. By mercantile system and in view of Section 171\r\nof the Indian Contract Act, 1872, the Bank has a general lien\r\nover all forms of securities or valuable instruments deposited\r\nby or on behalf of the customer in the ordinary course of\r\nbanking business. The general lien is a valuable right of the\r\nbanker judicially and statutorily recognised in India. In the\r\nabsence of an agreement to the contrary, a banker has a\r\ngeneral lien over such securities or bills received from the\r\ncustomer in the ordinary course of banking business. The\r\nBank has a right to use the proceeds in respect of any\r\nbalance that may be due from the customer by way of\r\nreduction of customer\'s debit balance. As held by the Hon\'ble\r\nApex Court in Syndicate Bank (supra), such a lien is also\r\napplicable to negotiable instruments including FD receipts which are remitted to the Bank by the customer for the\r\npurpose of collection. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. In this case, for the liabilities of Green Gateway\r\nLeisure Limited, the Bank has exercised its ostensible power\r\nof general lien over the petitioner-Company. The 1st\r\nrespondent-Bank has frozen the account of the petitionerCompany, which obviously is an independent incorporated\r\nentity. The justification advanced by the 1st respondent-Bank\r\nfor their conduct is that the Bank has lifted the corporate veil\r\nof the petitioner-Company and it has found that the\r\npetitioner-Company and the defaulter-Green Gateway\r\nLeisure Limited is one and the same. The reasons for\r\narriving at this conclusion is that two Directors of the\r\npetitioner-Company are Directors in Green Gateway Leisure\r\nLimited also and they have deep and pervasive control over\r\nthe said Company. The question arises whether a Bank can\r\nclaim that it has lifted the corporate veil of any Company and\r\ncome to a conclusion of their own.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. The doctrine of lifting up of corporate veil becomes\r\nrelevant when by a fiction of law, a Company is seen as a\r\ndistinct entity separated from its members, but in reality, it is\r\nan association of persons who, in fact, are the beneficial\r\nowners of the Company and its corporate property. This\r\nfiction is created by a veil and is called the Corporate Veil.\r\nLifting or piercing of corporate veil means ignoring the fact\r\nthat a Company is a separate legal entity and has a separate\r\nidentity of Corporate personality. This concept disregards the\r\nseparate identity of the Company and looks behind the true\r\nowners or real persons who are in control of the Company.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. The separate personality of a Company is a\r\nstatutory privilege and it must be used for a legitimate\r\npurpose only. Whenever and wherever a fraudulent or\r\ndishonest use is made of the legal entity, the individuals will\r\nnot be allowed to hide behind the curtain of corporate\r\npersonality. The court or appropriate authority will break this\r\nshell of the Company and sue the individuals who have done\r\nor committed such a crime or offence. This lifting of curtain is called a Lifting of the Corporate veil.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. The doctrine of lifting the veil has been developed\r\nas a device to avoid the hardship of the doctrine of corporate\r\npersonality. It may be understood as the identification of a\r\nCompany with its members. In order to protect themselves\r\nfrom the liabilities of the Company, its members often take\r\nthe shelter of the corporate veils. Sometimes these\r\ncorporate veils are used as a vehicle of fraud, or evasion of\r\ntax. To prevent unjust and fraudulent acts, it becomes\r\nnecessary to lift the veils to look into the realities behind the\r\nlegal facade and to hold the individual member of the\r\nCompany liable for its acts. The corporate veil has been\r\nlifted by the courts and legislatures in the interest of equity,\r\njustice and good conscience.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. The doctrine of lifting up of corporate veil seeks to\r\nstrike a balance between the interest of the public and the\r\nconcept of a separate personality. The doctrine is essentially\r\nused as a flexible tool to ensure justice. It would defeat the\r\nobject of the device if it were to be applied rigidly with no <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">scope at all left for judicial discretion. The doctrine can be\r\napplied only by legislature, courts of law and statutory and\r\nexecutive authorities. If parties to contracts or parties bound\r\nby mutual liabilities and obligations are permitted to claim\r\nthat he/it has lifted the veil of the corporate body with whom\r\nhe/it has such contractual relations/obligations and found the\r\ncorporate body to be another entity, and hence is no more\r\nbound by his/its liabilities and obligations, it would result in\r\nchaos in the fields of contracts. Lifting up of corporate veil\r\ncan be done only by the State. Citizens and private bodies\r\nwho question the identity of corporate bodies can resort to\r\nlifting up of corporate veil only through courts of law.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. In the present case, the Bank is claiming that by\r\nfreezing the current account of the petitioner-Company, what\r\nthey have done is enforcing their right to execute general lien\r\nin respect of another Company over the Current Account of\r\nthe petitioner-Company. It has to be noted that the\r\nrespondent-Bank has already approached the DRT-1\r\nErnakulam filing OA No.417/2018 for realisation of dues from\r\nGreen Gateway Leisure Limited. Later, the respondent-Bank\r\napproached NCLT, Kochi initiating proceedings under IBC\r\nCode. The Tribunal admitted the corporate insolvency\r\nresolution process.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. But, the NCLAT, Delhi set aside the Section 7\r\n(IBC) application ordering that if the corporate debtor fails to\r\nsettle in six months time, the respondent-Bank is at liberty to\r\ntake appropriate steps. On the failure of the Corporate\r\nDebtor to settle the accounts, the Bank has initiated IBC\r\nproceedings against personal guarantors of the Green <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Gateway Leisure Limited, including the two Directors who are\r\nDirectors in the petitioner-Company. It is when the issue is\r\npending before competent legal fora, the 1st respondentBank has frozen the petitioner’s Current Account ‘lifting the\r\ncorporate veil’, without the junction of DRT or NCLT/NCLAT.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>24. The allegation of the 1st respondent-Bank is that\r\nthe green Gateway Leisure Limited is diverting its funds\r\nthrough the petitioner-Company. There is no materials\r\navailable in the records of the case, other than the allegation\r\nthat the two Directors of the Company are Directors in the\r\nother Company also and that they have deep and pervasive\r\ncontrol over the Company. The specific case of the\r\npetitioner-Company that they are having an ongoing\r\nVilla/Housing Project named Royal Orchid and the funds\r\ndeposited in the Current Account are funds received from the\r\nprospective buyers.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">25. The petitioner has an ongoing project and the\r\nRERA has directed the petitioner to complete the project in a\r\ntime bound manner for which construction payments are to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be made to the suppliers and wages are to be paid to\r\nemployees. In such circumstances, the unilateral act of the\r\n1\r\nst respondent-Bank to freeze the current account of the\r\npetitioner, when litigations are pending on the issue of debts\r\nof the Green Gateway Leisure Limited, cannot stand the\r\nscrutiny of law. Invocation of Section 171 of the Indian\r\nContract Act by the respondents against the petitionerCompany for the dues of the Green Gateway Leisure Limited\r\nis absolutely illegal.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>The writ petition is hence allowed. Ext.P3 is set\r\naside. The respondents are directed to reactivate the Current\r\nAccounts of the petitioner forthwith enabling them to operate\r\ntheir accounts.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '976ef30a054783fbddeb1cdf577b6222.jpeg', '208255afebd35e4be3c801f31423892f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-18', 1, '', '', '2022-04-13 20:28:20', '2022-04-18 17:36:23'),
(1587, 'Oelw3igmqNI5PVUAwQrqRJg3H', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Eviction order passed by a Civil Court in suit instituted before coming into force of the Rajasthan Rent Control Act can be executed even after the Act came into force. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shankarlal Nadani Vs Sohanlal Jain.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2816 of 2022 decided on 12 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemat Gupta and Justice V. Ramasubramanian.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The appellant’s father was the tenant of Shop No. 4 situated at Jain\r\n1\r\nKatla, Bikaner Road, Suratgarh since 1982, whose owner was the father\r\nof the respondent herein at that time. The premises were let out on\r\nlease for monthly rent of Rs.583.33. After the death of the appellant’s\r\nfather, the shop was continuing for monthly tenancy of the appellant.\r\nThe premises in question was not in the urban area when the suit for\r\npossession was filed on 18.4.2013 after serving a notice of termination\r\nof tenancy under Section 106 of the Transfer of Property Act, 18821\r\n.\r\nDuring the pendency of the suit, the State Government issued a\r\nnotification on 11.7.2014 extending the provisions of the Rajasthan\r\nRent Control Act, 20012\r\n w.e.f. 11.5.2015.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The Civil Court passed the decree for possession against the appellants\r\non 28.5.2015 even though the Act became applicable to the area in\r\nquestion w.e.f. 11.5.2015. Aggrieved against the said judgment and\r\ndecree, the appellants filed first appeal before the Additional District\r\nJudge, Suratgarh which was dismissed on 5.10.2021. In the second\r\nappeal before the High Court, the appellants relied on the Division\r\nBench judgment of the Rajasthan High Court reported as K.\r\nRamnarayan Khandelwal v. Shri Pukhraj Banthiya wherein it has\r\nbeen held that the decree in civil suit could not be passed after the\r\napplicability of the Act to the area in question. The High Court in the\r\nimpugned judgment found that such judgment has been stayed by this\r\nCourt in Special Leave Petition, therefore, the judgment is not binding. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In view of the said fact, the High Court held that the decree in civil suit\r\ncould be passed as the same view was adopted by another co-ordinate\r\nBench of the High Court in another case and consequently, dismissed\r\nthe appeals filed by the appellants.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The argument of learned counsel for the appellants is that after the\r\nnotification of the State Government issued on 11.7.2014, became\r\noperative from 11.5.2015, it was the Rent Tribunal alone which would\r\nhave jurisdiction to hear and decide the petitions related to disputes\r\nbetween landlord and tenant and not the civil courts. Therefore, the\r\ndecree of possession could not be passed by the civil court as it can be passed only by the Rent Tribunal. Reliance was placed upon nonobstante clause with which sub-section (1) of Section 18 of the Act\r\nstarts so as to give overriding effect to the Act in question. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. Under the Act in question, Section 18 does not talk about the validity of any decree of the civil court but only restricts the jurisdiction of the\r\ncivil court from the date the Act became applicable. The Act has come\r\ninto force in respect of the premises in question on 11.5.2015 i.e., after\r\nthe civil suit was filed, therefore, the decree could validly be passed\r\nand executed. After the applicability of the Act to the area in question,\r\nthe landlord and tenant dispute can be raised only before the Rent\r\nTribunal but not before the civil court. However, a suit filed before the\r\ncivil court prior to the applicability of the Act has to be decided by the\r\ncivil court. A decree passed by the civil court is valid and executable\r\nwhich is not interdicted by the applicability of the Act to the area in\r\nquestion. The Act is applicable to the area in question from the date\r\nthe notification came into force and it does not bar the decree of the\r\ncivil court or the pendency of such civil suit.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. Still further, one of the principles is that the rights of the parties have\r\nto be determined on the date when lis commences i.e., on the date of\r\nfiling of the suit. The plaintiff is entitled to decree on that day when he\r\ninitiated the proceedings, therefore, rights of the parties have to be\r\nexamined as on the said day. Recently, this Bench in a judgment\r\nreported as ECGC Limited v. Mokul Shriram EPC JV was examining\r\nthe question as to whether the condition of deposit while filing appeal\r\nunder the Consumer Protection Act, 2019 would be applicable or the\r\nprovisions as it existed under the Consumer Protection Act, 1986 when\r\nthe complaint was filed would be applicable. This Bench considering the Constitution Bench judgments in Garikapati Veeraya v. N.\r\nSubbiah Choudhry & Ors., Vitthalbhai Naranbhai Patel v.\r\nCommissioner of Sales Tax, M.P., Nagpur and Hardeodas\r\nJagannath v. The State of Assam held that the provisions of the\r\nConsumer Protection Act, 2019 would not be applicable to the\r\ncomplaints filed prior to the commencement of the 2019 Act.\r\nTherefore, the Judgement and Decree passed in the suit for possession\r\ndoes not suffer from any illegality.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. In view of the above, we do not find any error in the order passed by\r\nthe High Court. Consequently, the appeals are dismissed.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9602741f891adf6f01271d5efba98fac.jpeg', 'cbcaba4c3ce03e7a347aa8d347575e2d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-16', 1, '', '', '2022-04-15 18:04:17', '2022-04-16 15:59:15');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1588, '57syN5vx3w1daaJaPMbb6XOlX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Right of the State to provide reservation in Universities is not affected by UGC Regulations which determine qualifications for selection to a post. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Abdul Haleem.P.P Vs State of Kerala and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WA 1423 of 2021 decided on 8 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The question that arises in this Writ Appeal is whether a non-Keralite\r\ncan claim communal reservation in a Pan India selection process conducted\r\nby the 2nd respondent University. The unsuccessful writ petitioner who\r\nchallenged the selection and appointment of the 5th respondent to the post of\r\nAssociate Professor in Information Technology in the 2nd respondent\r\nUniversity pursuant to Ext. P1 notification, is the appellant before us. The\r\nbrief facts necessary for the disposal of the Writ Appeal are as follows:-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Ext. P1 notification was issued by the 2nd respondent University\r\ninviting applications from eligible candidates for the post of Associate\r\nProfessor in Information Technology ear-marking the said post for the\r\nMuslim Category among the other backward classes. By Ext. P3 general\r\ninstructions for the applicants, it was made clear that the reservation for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">applicants from SC, ST, OBC (non-creamy layer), and differently abled\r\ncategories will be applicable as per Kerala Government norms. Applicants\r\nseeking reservation benefits available for SC/ST/OBC/differently abled\r\ncategories were to upload the necessary documents justifying the claim of\r\nrespective reservation as per Government of Kerala norms from the\r\ncompetent Authority. The 5th respondent, a native of Karnataka, produced a\r\ncertificate claiming to be a person belonging to the non-creamy layer of the\r\nOBC and the said certificate was issued from the Revenue Department of\r\nthe Government of Karnataka (Ext. P5). The Writ Petitioner contends that the\r\napplication of the 5th respondent could not have been entertained as he is a\r\nnon-domicile hailing from the State of Karnataka and the principle of\r\nreservations envisaged under the provisions Kerala State and Subordinate\r\nService Rules (“KS&SSR” for short) will not permit reservation in favour of\r\nnon-domicile candidates. Further it is the contention of the writ petitioner\r\nthat as per Kannur University First Statute,1998 Chapter III Clause (iii) the\r\nteachers of the University shall be appointed observing the provisions of\r\nClause (a), (b) and (c) of Rule 14 and Rules 15, 16 and 17A of the KS & SSR\r\nas amended from time to time. Since the 5th respondent is not a native of\r\nKerala and not being certified to be an eligible candidate under the OBC by\r\nthe State of Kerala, his candidature could not have been considered let alone\r\nbeing selected. It is also alleged that the 2nd respondent University has\r\nfavoured the 5th respondent in the writ petition by extending the last date of\r\nsubmitting the application and also that all the Universities in Kerala State </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">except the 2nd respondent University follows the principle of reservation\r\nbased on the provisions and stipulations under the KS & SSR. As a matter of\r\nfact, even the University of Mysore did not permit the non-domicile\r\ncandidates to claim reservation as is evident from the document produced.\r\nThus, a writ of a certiorari was sought to quash Exts. P6 and P13, the orders\r\nleading to the selection and appointment of the 5th respondent and for a\r\ndeclaration that the 5th respondent is totally ineligible to be considered for\r\nselection pursuant to Ext. P1 notification and also for a declaration that\r\nonly domicile candidates alone be considered for selection to the post which\r\nare ear-marked for reserved communities as per the provisions of KS & SSR.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3. The University filed a counter affidavit stating that Ext. P1\r\nnotification was for appointment to the single post of Associate Professor in\r\nthe Department of Information Technology reserved for Muslim Candidate,\r\nbut contended that as per the UGC Regulation, 2018, direct recruitment for\r\nthe post of Associate Professor in the Universities and colleges shall be on\r\nthe basis of merit through an all India test and that there was no bar for a\r\ncandidate belonging to Muslim Community from any State of India to\r\nparticipate in the selection process and further that the 5th respondent\r\nthough a native of the State of Karnataka belongs to the Muslim Community\r\nwhich is notified as backward class in the State of Kerala as well as in the\r\nState of Karnataka. Accordingly, the University tried to justify the selection\r\nof the 5th respondent.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The 5th respondent filed a counter affidavit contending that Ext.\r\nP1 notification was issued for recruitment through an All India test for the\r\nseat reserved for Muslim Community and the said respondent being a\r\nmember of the Muslim community reckoned as backward class in both the\r\nStates, was entitled to apply, being fully qualified for the post as per the\r\nnotification. A further contention was raised by the 5th respondent that the\r\nwrit petitioner cannot challenge the selection after having participated in the\r\nprocess and accordingly, prayed for dismissal of the Writ Petition.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The learned Single Judge, after considering the rival contentions\r\nand noticing the judgments on the point held that Regulation 3.1 of the UGC\r\nwhich is applicable to the 2nd respondent University meant that the\r\napplication was on an All India basis and therefore, there is no bar for any\r\napplicant to submit application and further that there was no exclusion of\r\nNon Keralaites in the notification. The learned Single Judge also found that\r\nthe writ petitioner has participated in the selection, and thus is estopped\r\nfrom challenging the selection process and accordingly dismissed the writ\r\npetition.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Before us, the learned Senior Counsel for the writ petitioner\r\nsubmits that the judgment under appeal cannot be sustained at all. He\r\nsubmits that if the judgments referred to in the impugned judgment are\r\nperused, it could be seen that the conclusion arrived at by the learned Single\r\nJudge is contrary to the dictum laid down in those judgments. The learned\r\nSenior Counsel also relied on the judgments in Action Committee on Issue of\r\nCaste Certificates to S.C. & S.T. v. Union of India (1994) 5 SCC 244, M.C.D. v.\r\nVeena and Others [2001 KHC 1599], Pankaj Kumar v. State of Jharkhand & Ors.\r\n[Civil Appeal No. 4864 of 2021 (Arising out of SLP (Civil) No. 13473/2020)] and\r\nRaj Kumar Meena v. Rankaswami and Others [W.A. No. 414 of 2017] to\r\ncontend that a candidate who has been certified as belonging to SC/ST/OBC\r\nin a particular State cannot claim benefits or privileges on the basis of the\r\nsaid certification in another State.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The learned Senior Counsel appearing for the 5th respondent Sri.\r\nP.Ravindran, instructed by Sri. P.K.Ibrahim, however, submits that the 2nd\r\nrespondent University is totally bound by the UGC Regulations and thus the\r\nselection being on an All India basis, the only relaxation permissible was a\r\nrelaxation of the cut off marks for the eligibility and no other concession\r\ncould be given and therefore, there was no bar at all for the 5th respondent\r\neither to apply or to get selected. He also relies on the judgment of the Full <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Bench of this Court in Radhakrishnan Pillai D. (Dr. ) v. Travancore Devaswom\r\nBoard and Others [2016 (2) KLT 245] in support of his contention that the\r\nUGC Regulations are totally binding on the Universities. The learned Senior\r\nCounsel further argues that the eligibility of the 5th respondent is not in\r\ndispute and that the selection being on an All India basis, his certificate of\r\ncaste and entitlement to claim reservation can only be certified by the State\r\nof Karnataka and not by Kerala State.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>9. Having considered the rival contentions and on going through the\r\nprinciples culled out from the above referred judgments, we have no\r\nhesitation to hold that the 5th respondent was not entitled to stake his claim\r\nin a reserved seat on the basis of the certificate issued to him from the State\r\nof Karnataka.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. The same view has been taken in Raj Kumar Meena v.\r\nRankaswami and Others [W.A. No. 414 of 2017] of this Court, and the Special\r\nLeave Petition No.34847 of 2017 filed before the Apex Court against the\r\nsaid judgment has also been dismissed. Incidentally, the above Writ Appeal\r\narose from the judgment in W.P.C. No.36354 of 2015 where one among us\r\n(Justice A.K. Jayasankaran Nambiar) categorically held that merely because a\r\ngiven caste is specified in State A as a Scheduled Caste, it would not\r\nnecessarily follow that if there be another Caste bearing the same\r\nnomenclature in another State, the person belonging to the former would be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">entitled to the rights, privileges and benefits admissible to the members of\r\nthe Schedule Caste of the latter state, for the purpose of the Constitution.\r\nThe Supreme Court in the decision in Pankaj Kumar v. State of Jharkhand\r\nand Others - [Civil Appeal No. 4864 of 2021 arising out of SLP (Civil) No.\r\n13473 of 2020)] relying on the earlier judgments had also taken the same\r\nview that the migrants are not entitled for reservation as other backward\r\nclasses (OBC) in the State/Union Territories where they have migrated. In\r\nview of the above binding and authoritative precedents it has to be held that\r\nthe 5th respondent, a member of the OBC from the State of Karnataka cannot\r\nhave a claim for the reserved seat under Ext. P1 notification.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. It is pertinent to note that the notification to the extent it\r\nearmarks the post for the Muslim Community among the OBC is not\r\nchallenged and as such the 5th respondent cannot be heard to contend that\r\nthe selection on All India basis on the basis of UGC Regulation makes it\r\nincumbent on the 2nd respondent to avoid any kind of social reservation.\r\nWe do not see as to how the UGC Regulations can affect the reservation\r\npolicy of the State. The notification inviting the candidates on an All India\r\nbasis in accordance with the UGC Regulations cannot mean that the\r\nreservation of posts which was in accordance with the Constitutional\r\nmandate as implemented within the State is affected in any manner. The\r\nFull Bench decision of this Court referred to above cannot be understood in\r\nany manner to hold that the reservation policy of a State has to be tinkered </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">with so as to be in line with the UGC Regulation.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. It is trite that Article 16 (4) of the Constitution of India is an\r\nenabling provision which enables the State to provide backward classes\r\nincluding Scheduled Castes and Scheduled Tribes, the reservation in\r\nappointments to public services. Such reservation is to be provided on the\r\nbasis of quantifiable data including the adequacy or inadequacy, as may be\r\nof the representation of such classes in government service. Resultantly,\r\nsuch data will vary from State to State and a certification of a particular class\r\nas being entitled to reservation in a State cannot ipso facto make it\r\napplicable to the other States in the country. The right of the State to provide\r\nreservation is unaffected by the Regulations issued by the UGC which\r\ndetermines the qualifications for selection to a post which is binding on the\r\nUniversities.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13. The finding of the learned Single Judge that the writ petitioner is\r\nestopped from challenging the selection process as he has participated in it\r\nalso cannot be sustained. The ineligibility of the 5th respondent is a matter\r\nwhich the writ petitioner can question and the same had to be considered on\r\nmerit. Simply because the appellant has participated in the selection\r\nprocess did not mean that the appellant had acquiesced to the illegality in\r\nthe selection process.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. The result of the above discussion leads to the inevitable\r\nconclusion that the candidature of the 5th respondent in the reserved seat\r\nwas totally impermissible and illegal and it is declared so. Consequently,\r\nthe selection of the 5th respondent is set aside, the 2nd respondent University\r\nis directed to appoint the writ petitioner, being the second rank holder in\r\nthe selection, as expeditiously as possible, at any rate, within a period of\r\none month from the date of receipt of a copy of this judgment.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> This Writ Appeal is allowed as above.</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fdb804d288800b7e33a7b568efc35362.jpeg', 'f6a04187d07b5f7c7573d0f3810b67ac.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-19', 1, '', '', '2022-04-15 18:26:17', '2022-04-19 06:31:13'),
(1585, 'qdhhgBefm8kDVoEx23Ml3LM8U', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Foreign donation is like an intoxicant with medicinal properties and works like a nectar only so long as it is consumed moderately to serve larger cause of humanity\'\'. Supreme Court while upholding amendment to Foreign Contribution (Regulation) Act.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Noel Harper and others Vs Union of India and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 566 of 2021 decided on 8 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A.M. Khanwilkar, Justice Dinesh Maheshwari and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">1. These petitions under Article 32 of the Constitution of India\r\nprimarily assail the constitutional validity of the amendments to the\r\nprovisions of the Foreign Contribution (Regulation) Act, 2010 vide\r\nthe Foreign Contribution (Regulation) Amendment Act, 20202, which\r\nhas come into effect on 29.9.2020, in particular, Sections 7, 12(1A), </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12A and 17(1), being manifestly arbitrary, unreasonable and\r\nimpinging upon the fundamental rights guaranteed to the\r\npetitioners under Articles 14, 19 and 21 of the Constitution.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(c) The petitioners have referred to the Circular issued by the\r\nReserve Bank of India (RBI) dated 6.2.2012 in exercise of its power\r\nunder Section 36(1)(a) of the Banking Regulation Act, 1949,\r\ncontaining detailed guidelines for implementation of the provisions\r\nof the 2010 Act including the opening of FCRA accounts in all\r\nscheduled commercial banks (excluding Regional Rural\r\nBanks/RRBs) throughout India. Public notice dated 3.10.2020\r\nissued by the respondent No. 2 after advent of the changed\r\ndispensation owing to the amendment of the provisions of the 2010\r\nAct in the year 2020 is, therefore, excessive and without jurisdiction\r\nand, thus, unenforceable in law. Further, the amendment of Section\r\n7 of the 2010 Act prohibits the registered person from transferring\r\nany foreign contribution irrespective of whether such person is duly\r\nregistered or not, which was otherwise permitted under the\r\nunamended provision. This change is also arbitrary and directly\r\naffects the implementation of the social upliftment schemes of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Trusts through foreign contribution. It is a blanket ban on transfer\r\nof foreign contributions, thus affecting the collaborations in\r\ndeveloping eco-system(s), especially for smaller and less visible\r\ngrassroot organisations that may not meet the criteria or be able to\r\nsubmit detailed proposals to get access to grants from foreign\r\ncountries. The grassroot organisations, in some cases, may not have\r\nthe track record or meet the eligibility criteria to obtain registration\r\nunder the Act and are entirely dependent on the funding/transfer by\r\nfoundations, such as the petitioner-Trusts. The intermediary\r\norganisations, which provide the necessary identification,\r\nmonitoring and capability building of the smaller non-profit\r\norganisations, which would be completely jeopardised because of the\r\nchanged dispensation. Resultantly, Section 7 read with Section\r\n17(1), as amended, is violative of the rights guaranteed under\r\nArticles 19(1)(c) and 19(1)(a) of the Constitution of India. These\r\nprovisions also suffer from the vice of ambiguity and overbreadth or\r\nover-governance, thereby violating Article 14 as well.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. Philosophically, foreign contribution (donation) is akin to\r\ngratifying intoxicant replete with medicinal properties and may work\r\nlike a nectar. However, it serves as a medicine so long as it is\r\nconsumed (utilised) moderately and discreetly, for serving the larger\r\ncause of humanity. Otherwise, this artifice has the capability of inflicting pain, suffering and turmoil as being caused by the toxic\r\nsubstance (potent tool) — across the nation. In that, free and\r\nuncontrolled flow of foreign contribution has the potentials of\r\nimpacting the sovereignty and integrity of the nation, its public order\r\nand also working against the interests of the general public.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. To eradicate misuse and abuse of foreign contribution in the\r\npast, despite the firm regime in place in terms of the 2010 Act, the\r\nParliament in its wisdom has now (vide Amendment Act of 2020)\r\nadopted the path of moderation by making it mandatory for all to\r\naccept foreign contribution only through one channel and to utilise\r\nthe same “itself” for the purposes for which permission has been\r\naccorded. Undeniably, the sovereignty and integrity of India ought\r\nto prevail and the rights enshrined in Part III of the Constitution\r\nmust give way to the interests of general public much less public\r\norder and the sovereignty and integrity of the nation. It must be\r\nborne in mind that the legislation under consideration must be\r\nunderstood in the context of the underlying intent of insulating the\r\ndemocratic polity from the adverse influence of foreign contribution\r\nremitted by foreign sources.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. It is unnecessary to underscore the distinction between foreign\r\ncontribution and foreign investment. By its very nature, foreign\r\ncontribution is a donation accepted from a foreign source\r\npurportedly for definite cultural, economic, educational, religious or\r\nsocial programme and to serve the cause of humanity. The\r\nexpression “foreign contribution” has been defined in Section 2(1)(h)\r\nof the 2010 Act to mean donation, which can be in the form of\r\ndelivery or transfer made by any foreign source of any article,\r\ncurrency, security, etc.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. It is open to a sovereign democratic nation to completely\r\nprohibit acceptance of foreign donation on the ground that it\r\nundermines the constitutional morality of the nation, as it is\r\nindicative of the nation being incapable of looking after its own affairs and needs of its citizens. The third world countries may\r\nwelcome foreign donation, but it is open to a nation, which is\r\ncommitted and enduring to be self-reliant and variously capable of\r\nshouldering its own needs, to opt for a policy of complete prohibition\r\nof inflow/acceptance of foreign contribution (donation) from foreign\r\nsource. This was the first option noted by the Parliament while\r\nconsidering the Bill concerning the 1976 Act. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30. Suffice it to observe that considering the legislative history and\r\nthe need for the Parliament to periodically intervene to arrest the\r\nincreasing influence on the polity of the nation due to the high\r\nvolume of inflow of foreign contribution and large-scale improper\r\nutilisation and misappropriation thereof, as noticed by the\r\nauthorities and keeping in mind the objective of the principal\r\nenactment being to uphold the values of sovereign democratic\r\nrepublic, the dispensation as altered to make it more strict <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">compliance mechanism for ensuring that the foreign funds are\r\naccepted in the prescribed manner and utilised by the recipient itself\r\nand more so, for the purposes for which it was allowed to be received\r\nby that person, the amended provisions ought to pass the muster of\r\nreasonable restriction. Certainly, such a change cannot be labelled\r\nas irrational much less manifestly arbitrary, especially when it\r\napplies uniformly to a class of persons without any discrimination.\r\nWe need to remind ourselves the dictum of this Court in Rustom\r\nCavasjee Cooper and also R.K. Garg – that it is not for the\r\nCourt to consider relative merits of the different political theories or\r\neconomic policies including that an economic legislation may be\r\ntroubled with crudities, inequities, uncertainties or the possibility of\r\nabuse cannot be the basis for striking it down.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">31. It must follow that acceptance of foreign contribution is\r\notherwise prohibited by law and violation of such restriction has\r\nbeen made an offence under Chapter VIII of the 2010 Act. Nothing\r\nprevents the organisations interested in doing charitable work in\r\nraising contribution within the country. In that sense, the 2010 Act </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">deals with a class of persons accepting foreign contribution from\r\nforeign source. All such persons are treated equally and without any\r\ndiscrimination.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>43. A person desirous of receiving/accepting foreign contribution\r\nfor such definite purposes had to seek a certificate of registration\r\nfrom the Central Government even under the unamended provision.\r\nAfter obtaining such certificate of registration, the recipient of\r\nforeign contribution could transfer it to another person who is also\r\nregistered and had been granted a certificate or obtained prior\r\npermission under the 2010 Act. However, that is not permissible\r\nunder the new dispensation (amended Section 7). For, the legislative\r\nintent is now one of complete prohibition regarding transfer of\r\nforeign contribution to third party</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>66. For the same reason, the argument of the writ petitioners about\r\nlack of rational nexus with the object sought to be achieved by the\r\nPrincipal Act much less the Amendment Act, must also fail. The\r\nrationale is of larger public interests and more particularly to obviate\r\nadverse impact on the economy, public order, sovereignty and\r\nintegrity of the country. Such amendment has been necessitated\r\nbecause of the past experience consequent to implementation of the\r\nunamended Section 7 of the 2010 Act. It is so highlighted in the\r\nobjects and reasons and the introduction of the Amendment Act. It\r\ncan also be culled out from the debates in the Parliament whilst\r\nconsidering the Amendment Bill in the respective Houses. To\r\novercome the mischief and to enhance transparency and\r\naccountability regarding acceptance and also utilisation of foreign\r\ncontribution which is quite substantial every financial year having\r\nproliferating effect on the economy of the nation, it had become\r\nnecessary to enact amended Section 7. In other words, there is a\r\nclear rationale behind the amendment which is consistent with the\r\npurpose of the Principal Act and the object sought to be achieved\r\nunder the enactments. The fact that unamended provision was less\r\nrestrictive, cannot be the basis to test the constitutional validity of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the provision on the touchstone of Article 19(1)(c) or 19(1)(g) or\r\nArticles 14 and 21 of the Constitution. The amended Section 7,\r\nbeing plain and clear and having nexus with the object sought to be\r\nachieved and is necessitated because of sovereignty and integrity of\r\nIndia or security of the State, public order and in the interests of the\r\ngeneral public. It is unfathomable as to how the amended provision\r\ncan be regarded as unconstitutional on any parameter.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>87. To sum up, we declare that the amended provisions vide the\r\n2020 Act, namely, Sections 7, 12(1A), 12A and 17 of the 2010 Act\r\nare intra vires the Constitution and the Principal Act, for the reasons\r\nnoted hitherto. As regards Section 12A, we have read down the said\r\nprovision and construed it as permitting the key functionaries/office\r\nbearers of the applicant (associations/NGOs) who are Indian\r\nnationals, to produce Indian Passport for the purpose of their\r\nidentification. That shall be regarded as substantial compliance of\r\nthe mandate in Section 12A concerning identification</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>88. Accordingly, Writ Petition (Civil) Nos. 566 and 751 of 2021 are\r\ndisposed of in the aforementioned terms. Writ Petition (Civil) No.634\r\nof 2021 also stands disposed of. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>No order as to costs.\r\nPending application(s), if any, are also disposed of.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '253fec569362c95d80236641363e4364.jpeg', 'a9f492d4f455223eb7f6e98782ea8078.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-14', 1, '', '', '2022-04-15 01:31:05', '2022-04-16 00:46:05'),
(1586, 'V1H2V38jixTniQHMBva1patqw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Starting point of limitation for violation of order under Section 12 of DV Act is when the order is violated and not when the application was filed. Supreme Court.', '<p><b>Kamatchi Vs Lakshmi Narayan. </b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><b>Criminal Appeal 627 of 2022 decided on 13 April 2022. </b></span></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Justice </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Uday Umesh Lalit and Justice </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Pamidighantam Sri Narasimha. </span></b></p><p><b>3. The present proceedings arise out of an application preferred by the appellant under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ‘the Act’), which was numbered as D.V.C. No.21 of 2018 in the Court of Judicial Magistrate,<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"> Ambattur, Chennai. The application was filed seeking appropriate protection in terms of Sections 17 and 18 of the Act and was preferred against the respondent-husband as well as the father-in-law and sister-in-law of the appellant</span></b></p><p><b>13. It is, thus, clear that though Section 468 of the Code mandates that ‘cognizance’ ought to be taken within the specified period from the commission of offence, by invoking the principles of purposive construction, this Court ruled that a complainant should not be put to prejudice, if for reasons beyond the control of the prosecuting agency or the complainant, the cognizance was taken after the period of limitation. It was observed by the Constitution Bench that if the filing of the complaint or initiation of proceedings was within the prescribed period from the date of commission of an offence, the Court would be entitled to take cognizance even after the prescribed period was over.</b></p><p><b>14. The dictum in Sarah Mathew3 has to be understood in light of the situations which were dealt with by the Constitution Bench. If a complaint was filed within the period prescribed under Section 468 of the Code from the commission of the offence but the cognizance was taken after the expiry of such period, the terminal point for the prescribed period for the purposes of Section 468, was shifted from the date of taking cognizance to the filing of the complaint or initiation of proceedings so that a complaint ought not to be discarded for reasons beyond the control of the complainant or the prosecution.</b></p><p><b>15. Let us now consider the applicability of these principles to cases under the Act. The provisions of the Act contemplate filing of an application under Section 12 to initiate the proceedings before the concerned Magistrate. After hearing both sides and after taking into account the material on record, the Magistrate may pass an appropriate order under Section 12 of the Act. It is only the breach of such order which constitutes an offence as is clear from Section 31 of the Act. Thus, if there be any offence committed in terms of the provisions of the Act, the limitation prescribed under Section 468 of the Code will apply from the date of commission of such offence. By the time an application is preferred under Section 12 of the Act, there is no offence <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">committed in terms of the provisions of the Act and as such there would never be a starting point for limitation from the date of application under Section 12 of the Act. Such a starting point for limitation would arise only and only after there is a breach of an order passed under Section 12 of the Act.</span></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">20. It is thus clear that the High Court wrongly equated filing of an application under Section 12 of the Act to lodging of a complaint or initiation of prosecution. In our considered view, the High Court was in error </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">in observing that the application under Section 12 of the Act ought to have been filed within a period of one year of the alleged acts of domestic violence.</span></b></p><p><b>21. It is, however, true that as noted by the Protection Officer in his Domestic Inspection Report dated 2.08.2018, there appears to be a period of almost 10 years after 16.09.2008, when nothing was alleged by the appellant against the husband. But that is a matter which will certainly be considered by the Magistrate after response is received from the husband and the rival contentions are considered. That is an exercise which has to be undertaken by the Magistrate after considering all the factual aspects presented before him, including whether the allegations constitute a continuing wrong.</b></p><p><b>22. Lastly, we deal with the submission based on the decision in Adalat Prasad4. The ratio in that case applies when a Magistrate takes cognizance of an offence and issues process, in which event instead of going back to the Magistrate, the remedy lies in filing petition under Section 482 of the Code. The scope of notice under Section 12 of the Act is to call for a response from the respondent in terms of the Statute so that after considering rival submissions, appropriate order can be issued. Thus, the matter stands on a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">different footing and the dictum in Adalat Prasad4 would not get attracted at a stage when a notice is issued under Section 12 of the Act.</span></b></p><p><b>23. We, therefore, allow this appeal and set aside the view taken by the High Court. Crl. O.P. No.28924 of 2018 is accordingly, dismissed. The husband shall file his response before the Magistrate within two weeks and the matter shall thereafter be considered by the Magistrate in terms of the provisions of the Act.</b></p><p><b>24. We must clarify that we have considered the instant matter from the perspective whether the application preferred under Section 12 of the Act was rightly considered by the High Court for reckoning the period of limitation. We have not and shall not be taken to have expressed any view on merits of the matter which shall be gone into independently at every stage.</b></p><p><b>25. The appeal is, thus, allowed. No order as to costs.</b></p>', 'c8f79ec1c5605be61ac606df5e249347.png', 'e04703ccec86716056554f15fe0218b2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-15', 1, '', '', '2022-04-15 03:49:43', '2022-04-15 07:07:39');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1583, 'MlfNaa6E7pKXAb9isWzlgHy0U', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Judicial review of subordinate legislation. Court cannot substitute its wisdom with that of the expert rule-making body. Supreme Court reiterates.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Dental Council of India Vs Biyani Shikshan Samiti and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2912 of 2022 decided on 12 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice L. Nageswara Rao and Justice B.R. Gavai.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The present appeal challenges the judgment and order of the Division Bench of the High Court of Judicature for Rajasthan, Bench at Jaipur, dated 24th April, 2018, passed in D.B. Civil Writ Petition No. 3260 of 2017, thereby allowing the writ petition filed on behalf of  the respondent No.1­ Biyani Shikshan Samiti (hereinafter referred to as “the   respondent No.1”) and striking down the Notification dated 21st May, 2012 (hereinafter referred to as “the impugned Notification”), vide which the appellant ­Dental Council of India  (hereinafter referred to as “the Council”), had substituted Regulation 6(2)(h) of the Dental Council of India (Establishment of New Dental Colleges, Opening of New or Higher Course of Studies or Training and Increase of Admission Capacity in Dental Colleges) Regulations, 2006 (hereinafter referred to as “the Regulations”), on the ground of the same being inconsistent with the provisions of the Dentists Act, 1948 (hereinafter referred to as “the said Act”) and also being violative of Articles 14 and 19(1) (g) of the Constitution of India.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22. It will be relevant to refer to the following observations of this Court in the case of Indian Express Newspapers (Bombay)  Private  Ltd.  and others vs.Union of India and others .</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent Legislature.   Subordinate   legislation   may   be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground   that   it   is   contrary   to   some   other statute.   That   is   because   subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is   unreasonable,   unreasonable   not   in   the sense of not being reasonable, but in the sense that it is manifestly arbitrary.”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23. It could thus be seen that this Court has held that the subordinate legislation may be questioned on any of the grounds on which  plenary legislation is questioned. In addition, it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. Though it may also be questioned on the ground of unreasonableness, such unreasonableness should not be in the sense of not being reasonable, but should be in the sense that it is manifestly arbitrary. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">24.It has further been held by this Court in the said case that for challenging the subordinate legislation on the ground of </font></span><font face=\"Calibri, sans-serif\">arbitrariness, it can only be done when it is found that it is not in conformity with the statute or that it offends Article 14 of the Constitution.  It has further been held that it cannot be done merely on the ground that it is not reasonable or that it has not taken into account relevant circumstances  which the Court considers relevant. </font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>25. The judgment of this Court in the case of Indian Express Newspapers (Bombay) Private Ltd.  (supra) has been followed by a three­judge Bench of this Court in the case of  Khoday Distilleries Ltd.  and   others   vs.   State   of   Karnataka   and others. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">26. In the case of State of T.N. and another vs. P. Krishnamurthy and others after considering the law laid down by this Court earlier in the cases of Indian Express Newspapers  (Bombay)  Private  Ltd.  (supra),  Supreme  Court Employees’  Welfare   Association.   vs.   Union   of  India   and another , Shri   Sitaram   Sugar   Company   Limited   and another vs. Union of India and others , St. Johns Teachers Training Institute vs. Regional Director, National Council for   Teacher   Education   and   another ,  Rameshchandra Kachardas   Porwal  and   others  vs.   State   of  Maharashtra </font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">(2006) </span><font face=\"Calibri, sans-serif\">and others ,  Union   of   India   and   another   vs.   Cynamide India   Ltd.   and   another9 and  State   of  Haryana   vs.   Ram Kishan   and   others.</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">4 SCC 517 5 (1989) 4 SCC 187 6 (1990) 3 SCC 223 7 (2003) 3 SCC 321</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>36. This Court in unequivocal terms has held that it would be wholly wrong for the Court to substitute its own opinion for that of the Legislature or its delegate as to what principle or policy would best serve the objects and purposes of the Act.  It has been held that it is not permissible for the Court to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation­making body and declare a regulation to be  ultra vires  merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 37. We find that the observations quoted herein above of the Division Bench of the High Court are totally contrary to the view expressed by this Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education and another (supra). </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>38. The Division Bench of the High Court has erred in substituting its wisdom with that of the rule­making body, which is an expert body.  In this respect, it will also be apposite to refer to the observations of this Court in the case of  All India Council for Technical Education vs. Surinder Kumar Dhawan and others.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>45. In the result, the appeal is allowed. The impugned judgment and order dated 24th April, 2018 passed by the Division Bench of the High Court is quashed and set aside. The D.B. Civil Writ Petition No.3260 of 2017 filed by the respondent No.1 before the Division Bench of  the High Court stands dismissed. No order as to costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '814209ea6799218b414c790fad05294c.jpeg', 'f9570d69a7e4b4b87e51e0ad3c1e32a9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-16', 1, '', '', '2022-04-15 00:38:43', '2022-04-16 22:18:11'),
(1584, 'NzHvnVzKxYCTh6KqSGH0xyUmr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Bar against changing rules of the game during selection process will not apply when change is announced prior to the holding of the interview. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Goa Public Service Commission Vs Pankaj Rane and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2779 of 2022 decided on 6 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.M. Joseph and Justice Hrishikesh Roy.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(1) By Advertisement No. 14/16 published by the appellant,\r\napplications were invited for filling up of six posts of\r\nunreserved category and three posts in the reserved category\r\nunder the Goa Civil Service Rules, 2016 (hereinafter\r\nreferred to as ‘the Rules’). Pursuant to the advertisement,\r\n1866 candidates appeared in the Computer Based screening\r\nTest (CBRT) held on 05.03.2017. When the results were\r\ndeclared, only seven candidates including respondent Nos. 1\r\nto 3 before this Court were found to have cleared the test.\r\nIn terms of the advertisement and the Rules, the written\r\ntest came to be conducted on 10.04.2017 and 11.04.2017. In\r\nthe results which came to be declared, out of the seven, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">only four candidates were found qualified. Respondent Nos.\r\n1 to 3 were among them. There is one Mr. Vivek Krishna Naik\r\nwho, no doubt, stood first. On 16.05.2017, the appellant\r\ndecided to fix the cut off marks with respect to the\r\ninterview. The total marks fixed for the interview was 40.\r\nThe appellant fixed cut off marks at 26. The final\r\ninterview took place on 24.05.2017. Mr. Vivek Krishna Naik\r\nwas declared successful. The results of respondent Nos. 1\r\nto 3 were not declared. Respondents took up the matter\r\nbefore the Chairman of the appellant pointing out the\r\nirregularities besides moving the Chief Secretary.\r\nApplications were made under the Right to Information Act\r\nseeking the information as to why results were not\r\npublished. This was done by respondent No. 1. We cut the\r\nlong story short by indicating that on 21.07.2017, a fresh\r\nadvertisement came to be issued inviting applications for 10\r\nposts of Junior Scale officer of Goa Civil Services.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(16) In this regard, we must notice that in the facts of\r\nthis case of the 1866 candidates who appeared in the\r\nscreening test / computer test, only 7 candidates which\r\nincluded respondent Nos. 1 to 3 cleared the test. The\r\nnumber stood further reduced to 4 and which again included\r\nrespondents Nos. 1 to 3. Therefore, when the question arose\r\nas to how the interview should be conducted, the Commission\r\ndecided on 16.05.2017 to fix 26 marks out of 40 as cut off\r\nmarks. It no doubt works out at 60 per cent of the total\r\nmarks in the interview segment. Rules did not provide for a\r\nseparate minimum for the interview. The advertisement did\r\nnot provide for a separate minimum in the interview. It is\r\nalmost a week before the interview that the Commission took\r\nthe decision in this regard. We have stated these facts\r\nonly to highlight that this is not a case where the\r\nCommission was faced with the task of having to interview a\r\nvery large number of candidates. For 6 unreserved posts and\r\n5 reserved posts finally, only 4 emerged as candidates to be\r\ndealt with at the final stage viz., the oral interview.\r\nThis, therefore, is distinguishable, in other words, from\r\nthe judgment relied upon by Mr. Pratap Venugopal, learned\r\ncounsel for the appellant viz. M.P. Public Service\r\nCommission (supra). That was a case where this Court noted\r\nthat the appellant Commission therein noting the large <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">number of applications received from the General Category\r\ncandidates against four posts decided to call only 71\r\napplicants who had 7 1/2 years of practice although 188\r\napplicants were eligible, in view of the fact that under\r\nSection 8(3)(c) of the provisions applicable in the said\r\ncase, five years of practice as an Advocate or pleader of\r\nMadhya Pradesh was a minimum requirement. It was therefore,\r\na case which though relied upon by the appellant is\r\ndistinguishable on facts. This is apart from noticing that\r\nthe appellant has not been able to inform the Court as to\r\nwhether there was a Rule in the said case similar to Rule 12\r\nas present in this case. As far as Yogesh Yadav (supra) is\r\nconcerned, this again is not a case which involved a Rule\r\nresembling Rule 12 of the Rules. We further may also notice\r\nthat in the said case recruitment was carried out by the\r\nemployer itself and it was not done by the recruiting body\r\nwhich the appellant is and which is limited by statutory\r\nrules made under Article 309 of the constitution.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(18) Though learned counsel for the appellant did\r\nemphasise the said observations, we are of the view that it\r\nis distinguishable at any rate having regard to Rule 12\r\nwhich we have already noticed which is applicable to the\r\nfacts of this case.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In other words, we would think that in the facts of\r\nthis case, they are closer to the facts of the case in P. K.\r\nRamachandra Iyer case and judgment following the same which\r\nwe have already noted. As far as Tej Prakash Pathak and\r\nOthers case is concerned, it again did not specifically\r\ninvolve a Rule similar to Rule 12.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(19) It is true that there is a distinction in the\r\nfacts with those of the case in K. Manjusree (supra). We <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">notice that that was a case where the requirement of minimum\r\nmarks for interview was made after the entire selection\r\nprocess consisting of the written examination and interview\r\nwas completed and noticing the facts, the Court declared\r\nthat it would amount to changing the Rules after process is\r\ncompleted. In this case, the stipulation as to the minimum\r\nto be obtained in the interview was announced prior to the\r\nholding of the interview. However, we would think that this\r\ncase must fall to be decided on the principle which has been\r\nlaid down in P. K. Ramachandra Iyer (supra) and Durgacharan\r\nMisra (supra) for the reasons which we have already\r\nindicated.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(20) As far as the question relating to the respondent No.\r\n3 not being in possession of the essential qualification, we\r\nmay notice the following:\r\nIt is true that under the Rules, knowledge of Konkani\r\nis declared as an essential qualification which the\r\nadvertisement also reiterates. The interview was held. The\r\nwrit petition was filed by all respondents together. The\r\ncontention which appears to have engaged the High Court in\r\nthe impugned judgment related to the power of the appellant\r\nto stipulate for a separate minimum in the interview. The\r\nimpugned judgment does not reflect even in the slightest way\r\nany attempt on the part of the appellant to non-suit the\r\nthird respondent on the ground that apart from there being\r\nno merit in the contention of respondents that Commission </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">did not have the power to stipulate for a separate minimum,\r\nrespondent No. 3 was even otherwise disqualified. We do not\r\nfind even a whisper of such a case in the impugned judgment.\r\nWe further notice that there is no case that the appellant\r\nhas urged this as a ground in the special leave petition.\r\nIt is true in objection filed in this case in this Court in\r\nJanuary, 2022, the appellant has produced what is described\r\nas its pleadings in the High Court. We have perused the\r\npleadings. The appellant has not been able to specifically\r\npoint out any allegation as such dealing with the\r\nineligibility of respondent no. 3 on the ground that he is\r\nnot possessed of the essential qualification of the kind\r\ncomplained of. It is true also no doubt that the question\r\nas to whether a candidate is qualified, in that, he is\r\nhaving knowledge of the Konkani language would appear to be\r\ntested in the interview. It is equally true that it is an\r\nessential qualification. But as to whether a person would\r\nbe disqualified on the ground that he was not having\r\nparticular essential qualification in the facts is a pure\r\nquestion of fact. This is not seen pleaded as such. We\r\nreiterate that the impugned judgment does not show that the\r\nappellant has urged this before the High Court. Apart from\r\nthe proceedings of the Selection Board, there is no record\r\nproduced to show that respondent No. 3 was disqualified on\r\nthis ground.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">We would therefore, think that it may not be </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appropriate to permit the appellant to raise this question.\r\n(21) We do think that the respondents are justified in\r\npointing out that the High Court is right in not permitting\r\nthe appellant to contend that the respondents cannot be\r\ntreated as entitled to be recommended. The question however\r\nmay arise as to what is the nature of the relief which can\r\nbe granted.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Since the appellant fails in its challenge to the\r\nimpugned order, the respondents must finally obtain redress.\r\nAccordingly, while we dismiss the appeal, we reiterate the\r\ndirections contained in the impugned order and it is for\r\nAppointing Authority to take the decision in accordance with\r\nlaw in the matter.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The appeal is dismissed without any orders as to\r\ncosts. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0d53c2d39e33ad35134f8ed0b738d94d.jpeg', '4158b92827ec66008e4909ef76ae3377.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-16', 1, '', '', '2022-04-15 01:18:16', '2022-04-16 08:31:46'),
(1600, 'iXLVoucNMmxxdVpPmN8K9WV4C', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Though the law of limitation is harsh, Court has no power to ignore the provision to relieve what it considers a distress resulting from its operation. Calcutta High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Parivar Enclave Pvt Ltd Vs Samir Dutta.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>C.O. 4169 of 2015 decided on 14 June 2016.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ishan Chandra Das.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Questioning the propriety of the order No. 28 dated 21st\r\nSeptember, 2015 passed by learned Civil Judge, Junior Division,\r\n1st Court, Serampore, Hooghly in T.S. 4501/2014 (T.S. 134/2014),\r\nthe petitioner herein stated that in the order impugned while\r\ndealing with the application under Section 7(2) of the West Bengal\r\nPremises Tenancy Act, 1997, the learned Trial Court allowed the\r\nsame and directed the defendant/opposite party to make deposit\r\nthe arrears of payment to the tune of Rs.5,577/- in two equal\r\nmonthly installments.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Being aggrieved by and dissatisfied with such direction, by\r\nway of allowing the application under Section 7(2) of the Act, the\r\npresent revisional application has been preferred.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\nSection 7(2) of the Act prescribed that if in any suit for\r\neviction of tenant under this Act, if there is any dispute of the rent\r\npayable by the tenant, the tenant shall, within the time specified in\r\nthat sub-section, deposit with the Civil Judge the amount admitted\r\nby him to be due from him together with an application for\r\ndetermination of the rent payable. This section also provides that\r\nno such deposit shall be accepted unless it is accompanied by an\r\napplication for determination of the rent payable and such payment\r\nor deposit shall be made within one month of the service of\r\nsummons on the tenant or where he appears in the suit without\r\nthe summons being served upon him, within one month of his\r\nappearance.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>At the very outset, the learned counsel appearing for the\r\npetitioner drew my attention to the order impugned wherein the\r\nlearned Trial Court while disposing of the application under Section\r\n7(2) of the Act observed that the petitioner under Section 7(2) of the\r\nAct was filed before him after the expiry of six months from the\r\ndate of his appearance, though he ought to have failed the same\r\nwithin one month and drawing my attention to the provision of\r\nSection 40 of the said Act, he pointed out that the\r\ndefendant/opposite party did not prefer to file any application\r\nunder Section 5 of the Limitation Act for condonation of delay in\r\nfiling such application within stipulated period (i.e. one month from\r\nthe date of his appearance). Clarifying the provision of Section 7(2)\r\nof the said Act, he pointed out that the learned Trial Court while\r\ndisposing of the said application under Section 7(2) of the Act did <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not consider the maintainability of the application, since it was not\r\npreceded by any application under Section 5 of the Limitation Act.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In this context, he relied upon a decision of the Hon’ble Apex\r\nCourt, reported in AIR 2014 SC, 746 (Basawaraj & Anr. –vs- The\r\nSpl. Land Acquisition Officer) and pointed out that where a case\r\nhas been presented in the Court beyond limitation, the applicant\r\nhas to explain the Court as to what was the sufficient cause (which\r\nmeans an adequate and enough reason) which prevented him to\r\napproach the Court within limitation. He also pointed out that the\r\nCourt could be justified in condoning such an inordinate delay and\r\nthe application is to be decided only within the parameters laid\r\ndown by Court in regard to the condonation of delay by showing\r\nsufficient ground which is opposed equitable grounds.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The learned counsel for the opposite party herein while\r\nopposing the revisional application admitted with all fairness that\r\nthe petition under Section 7(2) of the Act was filed as expeditiously\r\nas possible but after lapse of about six months and on the strength\r\nof the order impugned, his client made deposit of the arrears of\r\nrent by two installments, as directed. Supporting findings of\r\nlearned Trial Court while dealing with the application under\r\nSection 7(2) of the Act, he submitted that the delay in filing the\r\napplication was condoned by learned Trial Court in the order\r\nimpugned taking into consideration, the provision of the beneficial\r\nlegislation to protect the interest of the tenant so that the cause of\r\njustice is subserved. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Admittedly, as per statute, in a suit for eviction of a tenant\r\nunder the provision of the West Bengal Preemies Tenancy Act, 1997\r\nthe application under Section 7(2) of the Act has to be filed before\r\nthe learned Trial Court within one month from the date of\r\nappearance of the tenant to decide the issue regarding relationship\r\nof landlord/tenant, rate of rent, defaulter/arrear of rent to be paid\r\nby the tenant supported by deposit of admitted amount equivalent\r\nto rent within one month but it was not filing within the stipulated\r\ntime. There is a provision under Section 40 of the Act, which was\r\nenacted with a view to protect the interest of the parties who were\r\nprevented by sufficient cause for taking recourse of law within the\r\nstipulated time but the defendant/opposite party dared to take\r\nrecourse of such section so that his interest is protected.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In this context, he referred to a decision of the Hon’ble Apex\r\nCourt, in Basawaraj & Anr. –vs- The Spl. Land Acquisition Officer\r\n(supra) categorically held that </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>“The law on the issue can be\r\nsummarized to the effect that where a case has been presented in\r\nthe court beyond limitation, the applicant has to explain the court\r\nas to what was the “sufficient cause” which means an adequate\r\nand enough reason which prevented him to approach the court\r\nwithin limitation. In case a party is found to be negligent, or for\r\nwhat of bona fide on his part in the facts and circumstances of the\r\ncase, or found to have not acted diligently or remained inactive,\r\nthere cannot be a justified ground to condone the delay. No court\r\ncould be justified in condoning such an inordinate delay by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">imposing any condition whatsoever. The application is to be\r\ndecided only within the parameters laid down by this court in\r\nregard to the condonation of delay. In case there was no sufficient\r\ncause to prevent a litigant to approach the court on time condoning\r\nthe delay without any justification, putting any condition\r\nwhatsoever, amounts to passing an order in violation of the\r\nstatutory provisions and it tantamounts to showing utter disregard\r\nto the legislature”.</span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>When the legal proposition is settled that law of limitation\r\nmay harshly affect a particular party but it has to be applied with\r\nall its rigour, when the statute so prescribes that the court has no\r\npower to extend the period of limitation on equitable grounds. A\r\ncourt has no power to ignore that provision to relieve what it\r\nconsiders a distress resulting from its operation. The statutory\r\nprovision may cause hardship or inconvenience to a particular\r\nparty but the court has no choice but to enforce it giving full effect\r\nto the same.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Hence, in view of the decision of the Hon’ble Apex Court\r\nnoted above, I firmly conclude the learned Trial Court was not\r\njustified in allowing the application under Section 7(2) of the Act\r\nparticularly when the defendant/petitioner failed to explain the\r\nsufficient cause before him by filing an application under Section 5\r\nof the Limitation Act read with Section 40 of the Premises Tenancy\r\nAct, 1997.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Accordingly, I find merit in this application which stands\r\nallowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The order impugned being order No. 28 dated 21st\r\nSeptember, 2015 stands set aside with observation that the\r\napplication under Section 7(2) of the West Bengal Premises\r\nTenancy Act, 1997 was not tenable in law.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The revisional application thus stands disposed of.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>There will be no order as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ed360de09451f7d38eae69490385697e.png', '29072c5fa376855df42307fc6ff9859e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-19', 1, '', '', '2022-04-18 17:55:08', '2022-04-19 09:45:19');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1597, 'Tw20S260VBRhWRRknawwRUjOO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mere similarities will not come under the purview of copyright violation unless various clauses incorporated in Section 14 of the Copyright Act are satisfied. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Suryansh Broadcasting Pvt Ltd and others Vs M/S. Zee Entertainment Enterprises Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>FAO 9 of 2022 decided on 29 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P. Somarajan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The dispute between two channels with\r\nrespect to two programmes, one by the name\r\n‘Uppum Mulakum’ and the other by the name\r\n“Erivum Puliyum’ ended in a suit initiated for\r\nthe grant of mandatory injunction and permanent\r\nprohibitory injunction, in which an\r\ninterlocutory application was also filed for\r\ngetting a temporary injunction from telecasting\r\nand airing the programme in imitation of the\r\nprogramme by name ‘Uppum Mulakum’ under the\r\ncaption ‘Erivum Puliyum’. The trial court on\r\nhearing both the parties granted injunction in\r\npart pertaining to four episodes already covered\r\nby that time, but, refused to grant the\r\nremaining part of the injunction with respect to\r\nthe programme that may be aired and telecasted\r\nin future, against which the plaintiffs came up\r\nin appeal aggrieved by the non grant of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">remaining part of the injunction.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The plaintiffs claim copyright over\r\ntheir programme by the name ‘Uppum Mulakum’. It\r\nwas started in the year 2015, more specifically\r\n14.12.2015 and as on the date of the suit and\r\ninterim injunction application, in and around\r\n1206 episodes were telecasted. It is submitted\r\nthat it has attracted wide appreciation from the\r\nviewers and thereby it has become one of the\r\nstellar programs telecasted by the plaintiffs.\r\nIt is during the last Onam period, four episodes\r\nwere telecasted by the defendants-media by using\r\nthe very same characters involved in ‘Uppum\r\nMulakum’ through the very same actors. As such,\r\na notice was issued to the defendants to stop\r\ntheir programme and further telecast.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Originally, four episodes were\r\ntelecasted using the very same characters and\r\nactors based on a normal life of a Hindu family\r\nand family issues. The family consists of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">members with a close resemblance of the family\r\nmembers involved in the theme under “Uppum\r\nMulakum”, the stellar programme of the\r\nplaintiff/appellant media. On receipt of the\r\nnotice, the defendant/respondent media changed\r\ntheir programme, though the earlier name “Erivum\r\nPuliyum” was adopted for telecasting further\r\nepisodes, in which, the entire theme was changed\r\nfrom a Hindu family to Christian Anglo-Indian\r\nfamily with the very same actors resembling the\r\ncharacters employed in the programme “Uppum\r\nMulakum” and the very same actors were employed\r\nwith an addition of two or three characters in\r\nthe programme of respondent/defendant company\r\nand stopped the further telecasting of earlier\r\nfour episodes.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. According to the plaintiff, the\r\ndefendant/respondent has no right to proceed\r\nwith their programme by name “Erivum Puliyum”\r\nsince there is close resemblance of their\r\nstellar programme “Uppum Mulakum” and the actors </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">employed are none else, the very same actors\r\nemployed in their stellar programme and it may\r\ncause a reasonable doubt as to its identity that\r\nit would be the very same stellar programme of\r\nthe plaintiff media. But, it is an admitted case\r\nthat except the earlier four episodes, the theme\r\nemployed in the programme under challenge\r\n(Erivum Puliyum) is not based on the normal\r\nsequences of issues involved in a Hindu family\r\nand its exposure, but based on a Christian\r\nAnglo-Indian family and the family issues. It\r\nis submitted that there may be some close\r\nresemblance of the theme employed. But that\r\nitself is not sufficient in order to bring out a\r\ncase of violation of copy right.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5. It is submitted by the learned counsel\r\nfor the plaintiffs that, what is aired and\r\ntelecasted in the name and caption of ‘Erivum\r\nPuliyum’ by the defendants is the exact similar\r\nversion of their stellar programme ‘Uppum\r\nMulakum’, but, with slight variations and two </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">other characters were also introduced for that\r\npurpose. It is submitted that it will create an\r\nopinion in the mind of viewers that both\r\nprograms are in the same theme, same plot and\r\nwithin the very same atmosphere. The learned\r\ncounsel also relied on a Division Bench decision\r\nrendered by the Bombay High Court in Zee\r\nTelefilms Ltd. & another v. Sundial\r\nCommunication Pvt. Ltd. & others [2003(5)\r\nBom.C.R.404], wherein the earlier legal position\r\nsettled by the Apex Court in R.G.Anand v. M/s.\r\nDelux Films and Others [(1978) 4 Supreme Court\r\nCases 118] was also relied on. At this\r\njuncture, it is material to have an\r\nunderstanding with respect to what actually\r\namounts to the expression “copyright”.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Admittedly, the plaintiffs did not have\r\nany case that there is verbatim reproduction or\r\nadaptation of their stellar programme ‘Uppum\r\nMulakum’ in the episodes of the defendants by\r\nthe name ‘Erivum Puliyum’. Of course, it is a\r\nvisual media consisting of audio and video.\r\nInsofar as the video is concerned there is no <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">verbatim reproduction or even an imitation to\r\nsatisfy the requirements as embodied under\r\nSection 14 of the Copyright Act. The characters\r\nwere employed in two different family set up and\r\nthey are somewhat identical in their roles,\r\nespecially in the matter of a character by name\r\n‘Mudiyan’. Then the question is whether it is\r\nsufficient to bring up the matter within the\r\nsweep of section 14 of the Copyright Act, that\r\nis to say, as argued by the learned counsel for\r\nthe appellants, within the scope of Clause (vi)\r\nof Section 14 (a) of the Act. To that extent, it\r\nis worthwhile to look into the seven\r\npropositions laid down by the Apex Court in the\r\nR.G.Anand’s Case (Supra) that there cannot be\r\nany copyright in an idea, subject matter,\r\nthemes, plots, or historical or legendary facts.\r\nIt is further laid down by the Apex Court that\r\nin such a situation, the violation of copyright\r\nwill stand confined only to the form, manner,\r\narrangement and expression of the idea by the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">author of the copyrighted work. This would make\r\nthe legal position crystal clear that the form,\r\nmanner, arrangement and expression of the idea\r\nemployed by the copyrighted work alone would\r\nconstitute a ground for an action under the\r\nCopyright Act and there cannot be any copyright\r\nwith respect to idea, subject matter, themes,\r\nplot, or historical or legendary facts. This\r\nwould show that when something is incorporated\r\nas a new version or a new idea apart from the\r\ngeneral idea, subject matter, themes, plot etc.,\r\nthe user of the newly invented or incorporated\r\nidea alone would stand capable of bringing the\r\nmatter within the purview of violation of\r\ncopyright. Otherwise, there cannot be any\r\nviolation at all. It is also made clear by the\r\nApex Court that when an idea was originated or\r\ndeveloped from a source being common,\r\nsimilarities are bound to occur, and unless the\r\nfundamental or substantial aspects of the mode\r\nof expression adopted in the copyrighted work, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the same cannot be brought under the purview of\r\nviolation. In other words, the matter of\r\nsequence that can be originated may sometime be\r\nsimilar to the copyright claimed by the other\r\nparty and it would not fall under the broad\r\nspectrum of violation of the copyright. It has\r\nto be read along with the case that they did not\r\nhave any case of verbatim reproduction of their\r\nprogramme in the disputed episodes. Section\r\n14(a)(vi) would make any adaptation of the work\r\nwithin the sweep of the meaning of copyright,\r\nfor which there should be evidence or prima\r\nfacie satisfaction regarding the adaptation\r\nmade. Mere employment of very same actors in a\r\ndifferent atmosphere, though it is pertaining to\r\nthe day-to-day life of a family may not by\r\nitself bring the matter within the sweep of the\r\ncopyright as defined under Section 14,\r\nespecially when one is dealing with a Hindu\r\nfamily and the other one is dealing with a\r\nChristian Anglo-Indian family. It is also </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">submitted that what is involved in the script,\r\nif any, available or theme employed is the\r\nspontaneous behaviour of the family members, in\r\nidentical two families, one belongs to a Hindu\r\nfamily, the other belongs to a Christian family\r\nmay not by itself bring the matter within the\r\nsweep of violation of copyright. What actually\r\nmakes the difference between these two, must be\r\nunderstood with the main theme, over which there\r\ncannot be any copyright. If there is any new\r\ninvention employed by the author or the person\r\nwho claims copyright and if it is adopted\r\nsubstantially, certainly it would attract Clause\r\n(vi) of Section 14(a), for which there should be\r\nspecial pleading in the plaint with respect to\r\nthose portions with their grievance.\r\nUnfortunately, there are no such pleadings\r\neither in the plaint or in the interlocutory\r\napplication with respect to the words or the\r\ntheme, or the way and manner in which it was\r\ninvented into the programme. Copyright is </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">actually intended to protect the work of a\r\nparticular person or group of persons or a firm\r\nwhatever it may be, but that does not mean that\r\nit is not permissible to adopt the very same\r\ntheme or plot or idea or subject matter by\r\nothers unless the same is having an individual\r\nnature of its own with the employment of an\r\ninvention made by the creator apart from the\r\ngenerality of idea, theme or plot and its\r\nnatural sequences. In short, insofar as the\r\nactual sequences, or the family affairs or the\r\ndiscussion made in the family affairs or\r\nspontaneous expression made between the family\r\nmembers and the result of future planning, etc.,\r\nunless satisfies the test as mentioned above,\r\ncannot be brought under the meaning of copyright\r\nas embodied under Section 14 of the Copyright\r\nAct.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Ext.A5 Pen drive was produced along with\r\nthe plaint in order to show the similarities\r\nbetween the two programs. As discussed earlier <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">mere similarities will not come under the\r\npurview of copyright as made mentioned in\r\nSection 14 of the Copyright Act, unless it\r\nsatisfies the various clauses incorporated\r\ntherein.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. Further, there can not be an interim\r\ntemporary injunction with respect to a matter\r\nconstituting minute details, which cannot be put\r\nunder the surveillance by the Court. In such\r\ncases, the remedy is by way of damages, if any,\r\nsustained and not the grant of an interlocutory\r\norder of injunction. Hence, by maintaining the\r\norder passed by the trial court, I am of the\r\nview that it is fit and proper to direct the\r\ntrial court to expedite the disposal of the suit\r\nuntrammeled by any of the observations made\r\nmentioned in the impugned order as well as this\r\njudgment and the trial court shall expedite the\r\ntrial within a period of six months from the\r\nnext posting of the suit.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8. There will be a direction to the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Registry to return the Sealed cover kept in\r\nRegistrar’s (Judicial) office as item No.349 to\r\nthe concerned counsel on proper receipt.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>The appeal will stand dismissed. No order\r\nas to cost.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e4e1c9eb57f7e62f929d6979c4d2ec6d.jpeg', '82a1ae924eb668770fc3170f53507502.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-20', 1, '', '', '2022-04-18 16:35:59', '2022-04-20 10:47:11'),
(2778, 'Ft6mGJXRM6xtRNDoObRwQyL67', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bail granted in one crime cannot be cancelled merely because the accused, in alleged violation of the conditions of bail, is involved in a subsequent crime. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Renjith Vs State of Kerala<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.MC 854 of 2023 decided on 3 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Bechu Kurian Thomas.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Should the bail granted in one crime be cancelled merely because\r\nthe accused had, in alleged violation of the conditions of bail, got himself\r\nentangled in a subsequent crime? The above question arises for\r\nresolution in the instant case</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Petitioner is an accused in C.C. No.1104 of 2022 on the files of\r\nthe Judicial First Class Magistrate\'s Court, Chavakkad, which arises from\r\nCrime No.31 of 2022 of Guruvayoor Police Station, Thrissur (hereafter\r\nreferred to as the ‘first crime’). The prosecution alleges that on\r\n12.01.2022, petitioner had attacked the defacto complainant in front of a\r\ntemple at Guruvayoor and caused grievous hurt and also stole her mobile\r\nphone and thus committed the offences punishable under sections 341,\r\n323, 324, 325, 394 and 201 read with section 34 of the Indian Penal Code.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. After petitioner was taken into custody on 23.05.2022, he was\r\ngranted bail on 02.06.2022. One of the conditions imposed by the learned <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Magistrate, while granting bail was that petitioner should not involve in any\r\nother crime while on bail. Later, petitioner was arrayed as an accused in\r\nCrime No.1072/2022 of Thrissur Town West Police Station (hereafter\r\nreferred to as the ‘second crime’) alleging offences punishable under\r\nsections 294(b), 323, 308, 354 and 354A of the Indian Penal Code, 1860.\r\nThe allegations in the second crime include displaying his nudity before a\r\nlady and brandishing a chopper in an attempt to commit culpable homicide\r\nand shouting obscene words on a public road. Petitioner has been granted\r\nbail in the second crime also.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Bail once granted ought not to be cancelled for the mere asking.\r\nThere must be cogent and overwhelming circumstances existing to cancel\r\nthe bail which should not be resorted to in a mechanical manner also. In a\r\nrecent decision in P v. Madhya Pradesh and Another (2022 SCC OnLine\r\nSC 552) the Supreme Court considered the circumstances when bail\r\ncould be cancelled. One of the conditions for cancelling the bail has been\r\nsuccinctly stated to be that if he misuses his liberty by indulging in similar\r\nor other criminal activity.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 10. Despite the above, is the bail granted to the petitioner liable to\r\nbe cancelled because later, an FIR is registered against him? In the\r\ndecision in Imran v. Muhammed Bhava [2022 SCC Online SC 496] it has\r\nbeen held that certain supervening circumstances impeding a fair trial\r\nmust develop after granting bail to an accused for its cancellation. After\r\nreferring to the above decisions, the Supreme Court in the decision in P. v.\r\nState of Madhya Pradesh (supra) observed that cancellation of bail\r\nalready granted would indeed require significant scrutiny. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. As held in Dolat Ram and Others v. State of Haryana [(1995) 1\r\nSCC 349] very cogent and overwhelming circumstances are necessary to\r\ncancel the bail already granted and that bail once granted should not be\r\ncancelled in a mechanical manner without considering whether the\r\nsupervening circumstances have rendered it no longer conducive to a fair\r\ntrial to allow the accused to retain his freedom by enjoying the concession\r\nof bail during the trial.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. In this context, it is appropriate to refer to two recent decisions of\r\nthis Court. In Godson v. State of Kerala [2022 (2) KLD 447] a learned\r\nSingle Judge of this Court had observed that a mere violation of the bail\r\nconditions is not sufficient to cancel the bail but the satisfaction of the\r\ncourt that it is necessary to do so based on various factors have to be\r\narrived at. However, another learned Single Judge in Sreeja Mannangath\r\nv. State of Kerala [2022 (7) KLD 109], relying upon the decision in P. v.\r\nState of Madhya Pradesh (supra), cancelled the bail after observing that\r\nthe accused had misused his liberty by violating one of the conditions of\r\nbail. In Sreeja’s case (supra), the accused is alleged to have involved in\r\na subsequent crime against the defacto complainant in the earlier crime\r\nitself, in violation of the specific condition not to do so. The conclusion\r\narrived at in Sreeja’s case (supra) is based on the facts therein and\r\ncannot apply to the present situation. Further, the decision in P. v. State\r\nof Madhya Pradesh (supra) does not imply that on violation of any of the\r\nconditions of bail, there should be an automatic cancellation. The said\r\ndecision has not diluted the principles laid down in Dolat Ram\'s case\r\n(supra) and on the other hand, specifically observes that there must be a\r\nsignificant scrutiny before bail is cancelled.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. With the above principles in mind, when the circumstances of\r\nthe present case are appreciated, it can be noticed that the learned\r\nMagistrate had, in exercise of the discretion to grant bail, released the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner on bail even in the second crime. Still, the petitioner has\r\nremained in jail for the last more than two months. Though the allegation\r\nas regards the second crime is serious, taking into reckoning the\r\ncontention that the petitioner has been falsely implicated and the absence\r\nof any injury on any person and the general allegation that the accused\r\nattempted to commit culpable homicide by brandishing a sword in a public\r\nroad, this Court is of the view that the second crime cannot be treated as\r\noverwhelming enough to impede fair trial in the first crime for cancelling\r\nthe bail already granted. Further, the final report in the crime in which bail\r\nwas sought to be cancelled was filed much earlier and there is no\r\nallegation that the petitioner had misused his liberty against the defacto\r\ncomplainant therein.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. Thus, despite the registration of the subsequent crime against\r\nthe petitioner, having regard to the nature of allegations, this Court is of\r\nthe view that the order cancelling the bail granted to the petitioner ought to\r\nbe interfered with. Accordingly, the order dated 19.01.2023 in Crl.M.P.\r\nNo.3394 of 2022 in C.C. No.1104 of 2022 on the files of the Judicial First\r\nClass Magistrate\'s Court, Chavakkad is set aside. The petitioner shall be\r\nreleased from custody forthwith, if not required in any other case.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This Crl.M.C is allowed as above.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6b75557406ee5d2484deb2ad92e74347.jpeg', '30db0d0927133f58812621755b0a1d42.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-10', 1, '', '', '2023-03-09 16:18:27', '2023-03-10 09:00:02'),
(2779, 'mVgd7xfgAK2vOFC4nysDDVUg3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘Consider Datta Peetha issue without reference to High Power Committee report’. Karnataka High Court upholds single Judge’s order.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Syed Ghouse Mohiyuddin Shah Khadri Vs State of Karnataka and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">W.A. 1110 of 2021 decided on 6 March 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Alok Aradhe and Justice Vijaykumar A. Patil.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">This intra court appeal emanates from an order dated 28.09.2021 passed by Learned Single Judge by which in a writ petition preferred by Sri.Guruduttatreya Peetha Samvardhana Samithi (hereinafter referred to as \'the Samithi\' for short), the order dated 19.03.2018 passed by the State Government has been quashed and the matter is remitted to the State Government to re-consider the matter afresh in accordance with law without reference to the report of High Level Committee.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">2.<span style=\"white-space: pre;\">	</span>Facts giving rise to  filing  of  this  appeal briefly stated  are  that  an  ancient  cave  temple  is situate in Chandradrona Hills in Chikkamagalur (hereinafter referred to as \'the religious institution\' for short). Inside the cave, a tomb of Bababudan as well as Padukas of Lord Dattatreya and \'Nandadeep\' are situate. The cave temple is a venerated place of pilgrimage. The land measuring 1,861 acres was granted to Sri.Dattatreya Devaru, whereas, land measuring 111.25 acres was granted to Sri.Bababudan Dargah separately by the then Maharaja of Mysuru. After the enactment of Karnataka Inams Abolition (Religious and Charitable) Act, 1955, the Inam lands of the  institution  have vested with the Government and upon such vesting tasdik (compensation amount) of Rs.1,16,207/- and Rs.69,360/- have been fixed in respect of Sri.Dattatreya Devaru and Bababudan Dargah respectively. The Hindu and Muslims both offer prayers in Peetha as well as in Dargah.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">3.<span style=\"white-space: pre;\">	</span>The Samithi is a religious and Charitable Trust registered under the provisions of Indian Trust Act, which has been constituted with an object to protect and develop Sri.Gurudattatreya Peetha Devasthana, the cave temple at Inam Dattatreya Peetha Village in Chandradrona Parvat, Chikkamagalur.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">4.<span style=\"white-space: pre;\">	</span>The \'religious institution\' is a major muzrai temple governed by the provisions of Mysore Religious and Charitable Institutions Act, 1927. The State Government by an order dated 03.10.1964  included the religious institution in the list of Wakf Institutions. One Sri.B.C.Nagaraja Rao and Sri.C.Chandrashekar challenged the aforesaid order passed by the State Government in O.S.No.25/1970 before the District court at Chikkamagalur. The aforesaid civil suit was decreed vide judgment and decree dated 29.02.1980 and it was  inter  alia  held that the religious institution is a holy place of worship belonging to Hindus and Muslims and is not a Wakf property. It was further held that inclusion of the property belonging to religious institution in the list of Wakf is improper and illegal. The Karnataka State Board of Wakf was restrained by permanent injunction not to interfere with the plaintiffs rights in respect of religious institution.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">30.<span style=\"white-space: pre;\">	</span>We may now examine the issue whether the religious institution is governed by provisions of the 1997 Act. Section 23 of the Act deals with notified institution. It provides that State Government after commencement of the Act shall publish by notification in respect of each revenue district a list of institution mentioned in Clauses (a) to (f) thereof. In exercise of aforesaid power, by virtue of notification date 29.09.2012, the religious institution has been declared to be a notified institution and is therefore, governed by the provisions of the Act. It is pertinent to mention here that in W.P.No.38148/2000 preferred by the appellant himself, Learned Single Judge of this court vide order dated 14.02.2007 had recorded a finding that admittedly the religious institution is declared as a major muzrai institution. Therefore, in view of notification dated 29.09.2012 as well as the aforesaid finding in the writ petition, which binds the appellant, it can safely be inferred that the religious institution is not a Mutt and is governed by the Act.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">44.<span style=\"white-space: pre;\">	</span>The religious institution is composite in nature where members of both the communities are the devotees. The religious institution is entitled to protection of Article 26 of the  Constitution of India. The State Government has dealt with the sensitive issue  in a pragmatic  manner and has taken an action to manage the religious  institution  after  consulting the representatives of both the communities. The committee constituted by the State Government is managing the affairs of the religious institution without any complaint from any section of the society. The subsequent orders passed during the pendency of the appeal regarding performance of the rites in the religious institution have not been assailed on the ground that either it is arbitrary or is violative of fundamental rights of any section of the society.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">45.<span style=\"white-space: pre;\">	</span>So far as submission made by Learned Senior Counsel for the proposed respondents that the writ petition before the learned Single Judge was a public interest litigation and therefore, the same could not be entertained by learned Single Judge is concerned, suffice it to say that the Samithi had filed the writ petition being aggrieved by the order dated 19.03.2018 passed by the State Government. The Samithi is a religious and charitable trust which has been constituted with an object to develop Shri Dattatreya Peetha Devasthana, the cave temple and was an aggrieved person. At best, the  writ petition filed by it could be termed as a writ petition filed in a representative capacity. The respondents in the said writ petition did not raise any such  contention  that the writ petition is a public interest litigation. Even otherwise, the aforesaid contention is misconceived. The same is therefore repelled.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">47.<span style=\"white-space: pre;\">	</span>Thus, the appellant, the members of Hindu and Muslim community by their conduct have made the religious institution as shining example of true secularism. The court even otherwise also should be very circumspect in a dispute with regard to rites and rituals to be performed in a religious institution. The courts normally therefore, would not enter into such a dispute particularly when by reason thereof fundamental right of a group of devotees under Article 25 and 26 of the Constitution of India, may be infringed. For this reason  also,  at this  point of  time, no interference is called for. The dispute, which had arisen five decades ago needs to be put to rest in the absence of any controversy either by members of Hindu or Muslim Community.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">48.<span style=\"white-space: pre;\">	</span>In view of preceding analysis, we do not find any ground to differ with the view taken by the Learned Single Judge.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">In the result, the appeal fails and is hereby dismissed.</span></font></span></p>', 'a4fdd35ce2f84a8717d21e0c018e1ffc.jpeg', '88289848e9ab87c6ccc29199f9eb2d8f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-11', 1, '', '', '2023-03-09 16:19:21', '2023-03-11 10:05:50');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1591, 'dx57l0GIXv8PojxXq9iVMVv7s', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Persons appointed through placement agency cannot claim regularisation as having been appointed by the Government. Rajasthan High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Deepak Kumar Gupta and Others Vs State of Rajasthan.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CW 6232 of 2019 decided on 6 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Inderjeet Singh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Brief facts of the case are that the Government of India\r\nintroduced a scheme namely DEENDAYALANTYODAYAYOJNANATIONAL URBAN LIVELIHOOD MISSION (DAY-NULM)\r\n(hereinafter to be referred as the “Scheme”) for the purpose of\r\nreducing poverty & vulnerability of the urban poor households by\r\nenabling them to get the gainful self employment and skilled wage\r\nemployment opportunities, ultimately resulting in appreciable\r\nimprovement in their livelihoods on sustainable basis through\r\nbuilding grass route level institutions of the poor by tendering\r\nprocess. The scheme started in the year 2014-2015 and has been\r\ndecided to be funded 60% by the Central Government and 40%\r\nby the State Government. Implementing the said scheme in the\r\nState of Rajasthan, the respondents invited bids from the\r\nplacement agencies to provide manpower of various posts. In the\r\ncase of the petitioners, the placement agency namely T & M\r\nServices Consulting Private Limited Mumbai (hereinafter to be\r\nreferred as the “placement agency”) was engaged by the\r\nrespondents for providing manpower at the State Level as well as\r\nat the District Level. The said placement agency issued the\r\nadvertisement for hiring the persons on various posts i.e. State\r\nManager, District Manager and Community Organizer, on contract\r\nbasis. The petitioners pursuant to the advertisement issued by the\r\nplacement agency applied for appointment on the respective posts\r\nand after consideration, the petitioners were given offer of\r\nappointment on the respective posts by the placement agency.\r\nInitially, the process was started in the year 2015 and the\r\npetitioners were engaged on contract basis on the respective posts <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by the placement agency initially for a period of one year and their\r\nterm on contract basis was extended further from time to time. It\r\nhas also come on record that taking into consideration the\r\nachievement of 100% of targets allocated under the said scheme,\r\nthe term of said placement agency was accordingly extended by\r\nthe State Government, thereafter the term of said placement\r\nagency was ultimately terminated on 15.06.2019. After the\r\ntermination, a new tender was floated in which the placement\r\nagency namely B.S.A. Corporation, Pune was selected, which\r\nentered into a contract with the State Government for the purpose\r\nof providing manpower on various posts. Thus, a perusal of the\r\nfactual matrix shows that the State Government entered into a\r\ncontract with the placement agency for manpower and the\r\nplacement agency invited applications for appointment on various\r\nposts on contract basis and after consideration, the persons like\r\nthe petitioners were given appointment, as such it is clear that the\r\npetitioners’ appointments was contractual, made by the placement\r\nagency, their salary/remuneration was also paid by the placement\r\nagency and therefore the petitioners are not either contractual or\r\nregular employees of the State Government in any manner.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n4. These writ petitions have been filed by the petitioners\r\nclaiming themselves to be the employees of the State Government\r\nand have prayed for providing them regular pay-scale and salary\r\nof the post directly from the State Government and not from the\r\nplacement agency and have also claimed regularisation.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n5. Counsel for the petitioners submitted that the petitioners\r\nalthough have been engaged through placement agency but in\r\nfact they are employees of the State Government. Counsel further\r\nsubmits that their term was extended by the placement agency on </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the recommendations of the State Government. Counsel further\r\nsubmits that the scheme in question is still continuing but the\r\nrespondents in an arbitrary manner want to terminate their\r\nservices. Counsel further submits that in other States, the persons\r\nhave been directly appointed on contract basis by the State\r\nGovernment and not through the placement agency, therefore, the\r\naction of the respondents in terminating services of the petitioners\r\nis violative of principles of natural justice. Counsel further submits\r\nthat the respondents have not paid due salary to the petitioners\r\nand even in some of the cases, the respondents have orally\r\nterminated their services. Counsel further submits that their salary\r\nhas already been reduced by the respondents without any\r\njustifiable reason. Counsel further submits that the State\r\nGovernment has enacted Rajasthan Contractual Hiring to Civil\r\nPosts Rules, 2022 (hereinafter to be referred as the “Rules of\r\n2022”) vide notification dated 11.01.2022. Counsel further\r\nsubmits that the respondents have also issued the order dated\r\n31.03.2022 with regard to implementation of the Rules of 2022.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>6. In support of the contentions, counsel for the petitioners\r\nrelied upon the judgment passed by the Hon’ble Supreme Court in\r\nthe matter of Mohd. Abdul Kadir & Anr. Vs. Director General\r\nof Police, Assam & Ors. reported in (2009) 6 SCC 611.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. Mr. Anil Mehta, AAG opposed the writ petitions and submitted\r\nthat there is no direct relationship of employee and employer\r\nbetween the petitioners and the respondent-State. He further\r\nsubmits that admittedly there is no privity of contract, as the\r\ncontract was entered between the placement agency and the\r\npetitioners. He further submits that the scheme has been\r\nsponsored by the Central Government and the petitioners have </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">failed to implead any of the concerned official of the Central\r\nGovernment as party-respondent in the writ petitions. Counsel\r\nfurther submits that during pendency of the writ petitions, number\r\nof posts have been reduced and certain were abolished. Counsel\r\nfurther submits that the Rules of 2022 framed by the State\r\nGovernment provides for appointment of the persons on contract\r\nbasis directly by the State Government and as per Rule 5 of the\r\nRules of 2022, if the respondents fail to engage the persons on\r\ncontract basis then the applications have to be invited through\r\npublic advertisement, which is not the situation here as in the\r\npresent matter no public advertisement has been issued by the\r\nState Government, rather the petitioners were appointed by the\r\nplacement agency, as such the Rules of 2022 are not at all\r\napplicable in the case of the petitioners as they are not the\r\ncontractual employees of the State Government and lastly prayed\r\nfor dismissal of the writ petitions.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. Admittedly, there is no relationship of employee and\r\nemployer between the petitioners and the respondents as the offer\r\nof appointment was given to the petitioners by the placement\r\nagency and the salary/remuneration was also paid to the\r\npetitioners by the placement agency. Initially, the contract was for\r\na period of one year and the term of petitioners’ services was\r\nfurther extended from time to time by the placement agency. The\r\nRules of 2022 referred by the counsel for the petitioners relate to\r\nthe persons appointed by the State Government on contract basis\r\nthrough public advertisement and admittedly the petitioners were\r\nnot engaged as contractual employees directly by the State\r\nGovernment rather were appointed by the placement agency, as\r\nsuch the Rules of 2022 are not at all applicable in the case of the\r\npetitioners.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. In view of the above discussion, these writ petitions filed by\r\nthe petitioners deserve to be dismissed for the reasons; firstly, the\r\npetitioners have failed to establish their relationship of employee\r\nand employer with the respondent-State and only narration in the\r\npetition cannot be considered to be a justifiable ground to grant\r\nthe relief prayed for, unless it is supported by cogent evidence on\r\nrecord as has been held by the Hon’ble Supreme Court in the\r\nmatter of K.K. Suresh (supra); secondly, as per own version of\r\nthe petitioners, they were appointment by the placement agency\r\nbut failed to implead the placement agency as party respondent in\r\nthe writ petitions; thirdly, the salary/remuneration was also paid\r\nto the petitioners by the placement agency and not by the State\r\nGovernment; and lastly claim of the petitioners for regularisation\r\nin the State cannot be approved by this court as the petitioners\r\nwere never appointed by the State Government against\r\nsanctioned post on regular basis, rather, as already observed\r\nabove they were appointed by the placement agency; therefore, in\r\nthe facts and circumstances, the petitioners have completely failed\r\nto make out a case against the respondents, as such I am not\r\ninclined to exercise the jurisdiction of this court under Article 226\r\nof the Constitution of India.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. As a result of the aforesaid discussion, these writ petitions\r\nfail and are hereby dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '152d53103f8732e3127f49594045a424.JPG', '51c950b36660800c5760560373ad9328.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-18', 1, '', '', '2022-04-15 19:34:23', '2022-04-18 15:32:48'),
(1603, 'Nq9tx71a1ClXvkgiWngjy3NgN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Temporary injunction cannot be granted with respect to a matter constituting minute details, which cannot be put under the surveillance by the Court. Kerala High Court.', '<p><b>Suryansh Broadcasting Pvt Ltd and others Vs M/S. Zee Entertainment Enterprises Ltd and others.</b></p><p><b>FAO 9 of 2022 decided on 29 March 2022.</b></p><p><b>Justice P. Somarajan.</b></p><p><b>The dispute between two channels with respect to two programmes, one by the name ‘Uppum Mulakum’ and the other by the name “Erivum Puliyum’ ended in a suit initiated for the grant of mandatory injunction and permanent prohibitory injunction, in which an interlocutory application was also filed for getting a temporary injunction from telecasting and airing the programme in imitation of the programme by name ‘Uppum Mulakum’ under the caption ‘Erivum Puliyum’. The trial court on hearing both the parties granted injunction in part pertaining to four episodes already covered by that time, but, refused to grant the remaining part of the injunction with respect to the programme that may be aired and telecasted in future, against which the plaintiffs came up in appeal aggrieved by the non grant of the remaining part of the injunction.</b></p><p><b>2. The plaintiffs claim copyright over their programme by the name ‘Uppum Mulakum’. It was started in the year 2015, more specifically 14.12.2015 and as on the date of the suit and interim injunction application, in and around 1206 episodes were telecasted. It is submitted that it has attracted wide appreciation from the viewers and thereby it has become one of the stellar programs telecasted by the plaintiffs. It is during the last Onam period, four episodes were telecasted by the defendants-media by using the very same characters involved in ‘Uppum Mulakum’ through the very same actors. As such, a notice was issued to the defendants to stop their programme and further telecast.</b></p><p><b>3. Originally, four episodes were telecasted using the very same characters and actors based on a normal life of a Hindu family and family issues. The family consists of members with a close resemblance of the family members involved in the theme under “Uppum Mulakum”, the stellar programme of the plaintiff/appellant media. On receipt of the notice, the defendant/respondent media changed their programme, though the earlier name “Erivum Puliyum” was adopted for telecasting further episodes, in which, the entire theme was changed from a Hindu family to Christian Anglo-Indian family with the very same actors resembling the characters employed in the programme “Uppum Mulakum” and the very same actors were employed with an addition of two or three characters in the programme of respondent/defendant company and stopped the further telecasting of earlier four episodes.</b></p><p><b>4. According to the plaintiff, the defendant/respondent has no right to proceed with their programme by name “Erivum Puliyum” since there is close resemblance of their stellar programme “Uppum Mulakum” and the actors employed are none else, the very same actors employed in their stellar programme and it may cause a reasonable doubt as to its identity that it would be the very same stellar programme of the plaintiff media. But, it is an admitted case that except the earlier four episodes, the theme employed in the programme under challenge (Erivum Puliyum) is not based on the normal sequences of issues involved in a Hindu family and its exposure, but based on a Christian Anglo-Indian family and the family issues. It is submitted that there may be some close resemblance of the theme employed. But that itself is not sufficient in order to bring out a case of violation of copy right.</b></p><p><b>5. It is submitted by the learned counsel for the plaintiffs that, what is aired and telecasted in the name and caption of ‘Erivum Puliyum’ by the defendants is the exact similar version of their stellar programme ‘Uppum Mulakum’, but, with slight variations and two other characters were also introduced for that purpose. It is submitted that it will create an opinion in the mind of viewers that both programs are in the same theme, same plot and within the very same atmosphere. The learned counsel also relied on a Division Bench decision rendered by the Bombay High Court in Zee Telefilms Ltd. &amp; another v. Sundial Communication Pvt. Ltd. &amp; others [2003(5) Bom.C.R.404], wherein the earlier legal position settled by the Apex Court in R.G.Anand v. M/s. Delux Films and Others [(1978) 4 Supreme Court Cases 118] was also relied on. At this juncture, it is material to have an understanding with respect to what actually amounts to the expression “copyright”.</b></p><p><b>5. Admittedly, the plaintiffs did not have any case that there is verbatim reproduction or adaptation of their stellar programme ‘Uppum Mulakum’ in the episodes of the defendants by the name ‘Erivum Puliyum’. Of course, it is a visual media consisting of audio and video. Insofar as the video is concerned there is no verbatim reproduction or even an imitation to satisfy the requirements as embodied under Section 14 of the Copyright Act. The characters were employed in two different family set up and they are somewhat identical in their roles, especially in the matter of a character by name ‘Mudiyan’. Then the question is whether it is sufficient to bring up the matter within the sweep of section 14 of the Copyright Act, that is to say, as argued by the learned counsel for the appellants, within the scope of Clause (vi) of Section 14 (a) of the Act. To that extent, it is worthwhile to look into the seven propositions laid down by the Apex Court in the R.G.Anand’s Case (Supra) that there cannot be any copyright in an idea, subject matter, themes, plots, or historical or legendary facts. It is further laid down by the Apex Court that in such a situation, the violation of copyright will stand confined only to the form, manner, arrangement and expression of the idea by the author of the copyrighted work. This would make the legal position crystal clear that the form, manner, arrangement and expression of the idea employed by the copyrighted work alone would constitute a ground for an action under the Copyright Act and there cannot be any copyright with respect to idea, subject matter, themes, plot, or historical or legendary facts. This would show that when something is incorporated as a new version or a new idea apart from the general idea, subject matter, themes, plot etc., the user of the newly invented or incorporated idea alone would stand capable of bringing the matter within the purview of violation of copyright. Otherwise, there cannot be any violation at all. It is also made clear by the Apex Court that when an idea was originated or developed from a source being common, similarities are bound to occur, and unless the fundamental or substantial aspects of the mode of expression adopted in the copyrighted work, the same cannot be brought under the purview of violation. In other words, the matter of sequence that can be originated may sometime be similar to the copyright claimed by the other party and it would not fall under the broad spectrum of violation of the copyright. It has to be read along with the case that they did not have any case of verbatim reproduction of their programme in the disputed episodes. Section 14(a)(vi) would make any adaptation of the work within the sweep of the meaning of copyright, for which there should be evidence or prima facie satisfaction regarding the adaptation made. Mere employment of very same actors in a different atmosphere, though it is pertaining to the day-to-day life of a family may not by itself bring the matter within the sweep of the copyright as defined under Section 14, especially when one is dealing with a Hindu family and the other one is dealing with a Christian Anglo-Indian family. It is also submitted that what is involved in the script, if any, available or theme employed is the spontaneous behaviour of the family members, in identical two families, one belongs to a Hindu family, the other belongs to a Christian family may not by itself bring the matter within the sweep of violation of copyright. What actually makes the difference between these two, must be understood with the main theme, over which there cannot be any copyright. If there is any new invention employed by the author or the person who claims copyright and if it is adopted substantially, certainly it would attract Clause (vi) of Section 14(a), for which there should be special pleading in the plaint with respect to those portions with their grievance. Unfortunately, there are no such pleadings either in the plaint or in the interlocutory application with respect to the words or the theme, or the way and manner in which it was invented into the programme. Copyright is actually intended to protect the work of a particular person or group of persons or a firm whatever it may be, but that does not mean that it is not permissible to adopt the very same theme or plot or idea or subject matter by others unless the same is having an individual nature of its own with the employment of an invention made by the creator apart from the generality of idea, theme or plot and its natural sequences. In short, insofar as the actual sequences, or the family affairs or the discussion made in the family affairs or spontaneous expression made between the family members and the result of future planning, etc., unless satisfies the test as mentioned above, cannot be brought under the meaning of copyright as embodied under Section 14 of the Copyright Act.</b></p><p><b>7. Further, there can not be an interim temporary injunction with respect to a matter constituting minute details, which cannot be put under the surveillance by the Court. In such cases, the remedy is by way of damages, if any, sustained and not the grant of an interlocutory order of injunction. Hence, by maintaining the order passed by the trial court, I am of the view that it is fit and proper to direct the trial court to expedite the disposal of the suit untrammeled by any of the observations made mentioned in the impugned order as well as this judgment and the trial court shall expedite the trial within a period of six months from the next posting of the suit.</b></p><p><b>8. There will be a direction to the Registry to return the Sealed cover kept in Registrar’s (Judicial) office as item No.349 to the concerned counsel on proper receipt.</b></p><p><b>The appeal will stand dismissed. No order as to cost.</b></p><p><br></p>', '69ff012ba02b3a65f8a632247cb674e3.JPG', 'df3de783839921cc5390db32770a5153.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-18', 1, '', '', '2022-04-18 22:05:46', '2022-04-18 22:10:52'),
(1598, 'WDm3x9UbAHJA0hOPCBTsQDnXA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'State has a public duty to permit private players to open schools to cater to large number of students throughout the State by disposing applications at the earliest. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>We Care Charitable Trust Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 1682 of 2022 decided on 12 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P. Krishna Bhat.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The petitioner wants to upgrade its existing school by opening classes for Standards 9th and 10th. The grievance of the petitioner is that its applications have not been properly considered by the respondents and they  were rejected. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. After making his submission for sometime, learned counsel Sri M.P.Srikanth stated that the petitioner has already filed a fresh application seeking permission from the respondents to upgrade the school by starting classes for 9th and 10th standard for the academic year 2022-2023 and suitable direction may be issued by this court to consider the same and dispose it of within a reasonable time.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Large number of litigations are coming up before this Court alleging failure on the part of respondents to consider the applications seeking approval for upgradation of the schools advancing two contentions; namely, such applications are not disposed of within a time bound manner and such applications are disposed of without giving proper and intelligible reasons. Disposal of the applications in a time bound manner is extremely essential as the applications are filed for specific academic year and if the decision making authorities take too long a time for disposing of the applications, the academic year itself would have been over rendering the applications irrelevant or infructuous. It is necessary for the respondents to bear in mind the fact that the applications are filed by paying considerably high amount of fees and if the applications are not considered by them and disposed of within a reasonable time, it will entail great hardship to the petitioner. It is also necessary for the respondents to keep in mind that they are bound to give reasons for granting or refusing to grant permission. The applicants like petitioner are entitled to know the reasons as to why a particular decision has been taken on the application either granting or refusing to grant permission1 (KRANTI ASSOCIATES (P) LTD. V. MASOOD AHMED KHAN – PARA 47). Assigning reasons for refusal of permission would help the petitioner to fulfill the deficiencies so that when they make a fresh application, they could do so in a proper manner in order to be successful during the next time. Even otherwise, the public authorities vested with public powers are expected to exercise such powers in a reasonable manner which includes  taking decisions within 1 (2010) 9 SCC 496 a reasonable time and also the concomitant duty demand that the authorities give proper reasons for their decisions. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Learned counsel for the petitioner submitted with considerable anguish that the petitioner has been making efforts to secure approval  for  upgrading  its existing school by opening classes for Standards 9th and  10th and towards this end it had made application for the academic year 2019-20 by paying a large amount of application fee of Rs.1 Lakh. He submitted that the application was processed by the respondents in such a manner that the report of the Three Member Committee pointing out the deficiency in the Institution were  not  made known to the petitioner so as to provide an opportunity to rectify the same and instead  the respondents proceeded with the processing of the application finally rejecting the same.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. The Institutions which want to upgrade their schools make necessary applications by paying the requisite fee to the respondents. The decision making power on such applications is with the respondents. Such power is a public power and it is vested with the respondents for effectuating a public purpose<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. It is therefore a fundamental right of every child born in this country to have free and compulsory education upto the age of fourteen and therefore, a corresponding duty is enjoined upon the State through the respondents to ensure the creation of large number of schools for providing universal education to children upto the age of fourteen. This is a public duty commanded by the Constitution on the State and its subordinate officials. Due to lack of sufficient resources State itself is not in a position to open sufficient number of schools for universalising primary and secondary education. It is therefore necessary that private players should be permitted to open schools to cater to large number of students through out the State. It is further necessary that regulatory mechanism is put in place to ensure that the private players do not misuse such opportunities either by lowering the standard of education or by charging unreasonably high fees. It is also necessary to ensure that minimum reasonable infrastructural facilities in terms of classrooms, lavatories and bathrooms, libraries, playgrounds, teaching staffs and other auxiliary staff with proper service conditions are afforded by the private managements. Once the application is made by the managements the respondents are required to make an inspection as per the Rules and give opportunity to the managements to rectify any defects found during such inspection and thereafter, the application should be finalised. In the entire process of consideration of the application respondents are required to act in a reasonable, just and fair manner. The petitioner is not satisfied that the respondents have given a fair deal while disposing of its earlier application for the academic year 2019-20. It therefore seeks for issue of writ of mandamus directing the respondents to consider its application for the year 2022-2023. The question now is, what is the proper relief that is required to be granted by this Court in a case of this nature? There is no doubt about the fact that the power vesting with the respondents to consider and dispose of an application seeking upgradation of the school is coupled with a duty. Such a duty should be discharged by the respondents in a transparent and reasonable manner. Transparency is achieved by giving reasons for the final decision taken by the respondents. Reasonableness is assured by the respondents by affording opportunities to applicants to rectify the deficiencies if any noticed during the inspection of the Institution as per the Rules.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)  The application filed by the petitioner seeking upgradation of the school by starting classes for Standards 9th and 10th for the academic year 2022-2023 shall be considered and disposed of by the respondents within a total period of six weeks from today.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)  The Three Member Committee while making its visit for the purpose of inspection shall point out the deficiencies noted to the petitioner during the inspection itself in writing.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii)  The respondents while examining the case of the petitioner for upgradation of the school on the basis of report of Three Members Committee or on their own notice any deficiencies in the institution for the purpose of upgradation shall inform the petitioner in writing about the same.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv)  A week’s time may be given to the petitioner to offer its explanation on the said application.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(v)  Within two weeks of receiving such explanation from the petitioner, respondents shall take a decision on the application filed for seeking upgradation of the school for the academic year 2022-2023 and communicate such decision immediately thereafter to the petitioner.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(vi)  Reasons shall be given by the respondents for the decision taken by them either granting or refusing to grant permission for upgradation of the school.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '86ea01cf7fefdc48b1ac14448ffbc254.jpeg', '9826b361c38a15b6f41f1bff812b4a32.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-18', 1, '', '', '2022-04-18 16:51:44', '2022-04-18 14:07:24'),
(1599, 'KahAwJckolHgyE5ZFAZKN2KAA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Rule rule of Damdupat has no application to the State of Andhra Pradesh in respect of any transactions. Andra Pradesh High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Edhellacheruvu Balarami Reddy Vs Edhellacheruvu Munaswamy Reddy.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Second Appeal 317 of 2021 decided on 1 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Subba Reddy Satti.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Suit O.S.No.35 of 2011 was filed by the plaintiff for\r\nrecovery of Rs.2,48,402/-, principal being Rs.70,000/- with\r\ninterest @24% p.a. from 16.08.2000 to 30.03.2011, which\r\ncomes to Rs.1,78,402/-, basing on a registered mortgage.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. In the plaint, it was contended that defendant borrowed\r\nan amount Rs.70,000/- on 16.08.2000 and executed a\r\nregistered mortgage deed and agreed to pay interest @24% p.a.\r\nSince the defendant failed to repay the amount, a legal notice\r\ndated 04.02.2011 was issued and filed the suit.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Defendant filed written statement and contended that he\r\nnever borrowed any amount and executed mortgage deed. He\r\nfurther pleaded that he is entitled for the benefit of Act 4 of\r\n1938. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Learned counsel for the appellant would contend that the\r\nappellant is an agriculturist, as such he is entitled for the\r\nbenefit of Act 4 of 1938. He would also contend that contractual\r\nrate of interest @24 p.a. is excessive and prayed the Court to\r\nallow the second appeal.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Whether the appellant is entitled to benefit under Act 4 of\r\n1938?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">1</span><span style=\"font-size: 12pt;\">1. Whether Doctrine of Damdupat applies in state of Andhra\r\nPradesh? </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. To prove the execution of promissory note, creation of\r\nmortgage and passing of consideration, the plaintiff examined\r\nhimself as P.W.1 and got examined one of the attestors of Ex.A1 mortgage deed, as P.W.2. Nothing contra was elicited in the\r\ncross examination of P.Ws.1 and 2, contrary to the case pleaded\r\nby them.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. Though the defendant pleaded that he is entitled for the\r\nbenefit of Act 4 of 1938, he could not establish that he is an\r\nagriculturist and cultivating the land. Defendant having pleaded\r\nthat he is entitled for the benefit of Act 4 of 1938, the burden\r\nlies on him to prove the same. However, he could not adduce\r\nany convincing and cogent evidence. Having pleaded that he was\r\ncultivating the land on lease, no document was filed. Hence, the\r\ndefendant is not entitled for the benefit of Act 4 of 1938 to scale\r\ndown the interest. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. With regard to applicability of Rule of Damdupat in\r\nSuryapaga Ravikumar Vs. Pakkela Ramarao and others 2009 (5) ALT 574 , the\r\ncomposite High Court of Andhra Pradesh held thus:<br> </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>“In fact, in Syndicate Bank Vs. Guravareddy 1998 (1)\r\nALT 735, in which the learned counsel for the appellant\r\nherein Sri T.S. Anand was Amicus Curiae assisting the\r\nCourt, His Lordship Hon\'ble Sri Justice B. Sudershan\r\nReddy (as His Lordship then was) specifically\r\nconsidered the territorial application of the rule of\r\nDamdupat. His Lordship made it clear that the Apex\r\nCourt judgment in M.R. Patil v. S.B. Rainade (supra) is\r\nnot an authority for the proposition that the rule of\r\nDamdupat is applicable throughout India including State of Andhra Pradesh, but on the other hand, it is held in\r\ncategorical terms that the rule of Damdupat was never\r\napplicable to Madras. His Lordship also made it clear\r\nthat the observations of the Apex Court about\r\nMadhwa Sidhanta\'s case (supra) are required to be\r\nunderstood in their context and the question dealt with\r\nwas whether the rule of Damdupat is applicable only to\r\nsimple loan transactions or even to mortgage\r\ntransactions. With reference to the authoritative\r\nstatement of the principle in N.R.Raghavachariar\'s\r\nHindu Law (8th Edition) and Mulla on Principles\r\nof Hindu Law (15th Edition), His Lordship held that the\r\nrule of Damdupat has no application whatsoever to the\r\nState of Andhra Pradesh in respect of any transactions.\r\nHis Lordship had been pleased to place on record the\r\nappreciation for the assistance rendered by Sri T.S.\r\nAnand, learned Amicus Curiae in that case.”\r\nIt was further held that\r\n“Though there can be no interference with the interest up\r\nto the date of the suit, the grant of subsequent interest\r\nsince the date of the suit up to the date of decree by the\r\npreliminary decree under appeal at the same contractual\r\nrate of 18 per cent per annum triennially compounded\r\nappears to be impermissible. Order XXXIV Rule 11 of the\r\nCode of Civil Procedure which applies to payment of\r\ninterest under mortgage transactions, clearly lays down\r\nthat the Court may order payment of interest to the\r\nmortgagee up to the date of redemption to be on the\r\nprincipal amount found or declared due on the mortgage,\r\nat the rate payable on the principal, or, where no such\r\nrate is fixed, at such rate as the Court deems reasonable.\r\nWhile the subsequent interest from the date of the decree\r\ngranted at 6 per cent per annum on the principal sum of\r\nRs.80,000/-is not under challenge by either party,\r\nlearned counsel for the appellant Sri T.S. Anand has\r\nrightly relied on N.M. Veerappa v. Canara Bank 1998 (2)\r\nALT 6 (SC), wherein the Apex Court held with reference\r\nto Order XXXIV Rule-11 of the Code of Civil Procedure as\r\namended in 1929 that the new provision gives a\r\n\r\n5\r\ncertain amount of discretion to the Court so far as\r\npendente lite interest is concerned. The Apex Court\r\nmade it clear that the discretionary power conferred\r\non the civil Court under Order XXXIV Rule-11 to cut\r\ndown the contract rate of interest for the period from the\r\ndate of suit up to the date fixed for redemption by the\r\nCourt is very much there, even if there was no question\r\nof the rate being penal, excessive or substantially unfair\r\nwithin the meaning of the Usurious Loans Act, 1918.\r\nThat discretionary power was held to be an independent\r\npower not traceable to Section 74 of the Contract Act or\r\nUsurious Loans Act or any State Statutes. Therefore, it is\r\nclear that the compound interest awarded by the\r\npreliminary decree in question from the date of the suit\r\ntill the date of decree has to be necessarily interfered\r\nwith in the interests of justice, further keeping in view\r\nthat the teacher, aged about 52 years by now became\r\nliable to pay more than thrice the amount he borrowed\r\neven by the date of the suit, his liability having been\r\nfurther enhanced by many more times by now. After\r\nhearing the learned counsel for both sides and keeping\r\nin view the facts and circumstances of the case, the\r\njudicial discretion conferred on the Court under Order\r\nXXXIV Rule 11 of the Code of Civil Procedure can be\r\njustifiably exercised to fix the rate of interest at 12 per\r\ncent per annum simple from the date of the suit till the\r\ndate of preliminary decree granting relief both in the rate\r\nand nature of interest further clarifying that the said\r\ninterest is payable only on the principal sum of\r\nRs.80,000-00 and not on the entire suit sum as\r\ncalculated in the impugned preliminary decree.”\r\n</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. In view of the ratio laid down in the above judgment, the\r\ncontention of learned counsel for the appellant is negatived.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. The evidence on record clearly proved about borrowing of\r\namount and execution of Ex.A-1 registered mortgage deed by \r\n\r\n6\r\nappellant. In the absence of any contrary evidence, perversity in\r\nappreciation of evidence by the Courts below, this Court does\r\nnot find any irregularity and illegality in the findings of fact\r\nrecorded by the Courts below. Thus, no interference of this\r\nCourt under Section 100 of CPC is warranted. Thus, this Court\r\nis of view of that no questions of law much less substantial\r\nquestions of law involved in the above appeal. Hence, the\r\nappeal is liable to be dismissed, however, without costs.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. Accordingly, the second appeal is dismissed. No order as\r\nto costs. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e8a9a379344f02f7c15d5166c588e1a4.JPG', '18434fcaf26bc23f09698d1ec8184797.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-19', 1, '', '', '2022-04-18 17:02:34', '2022-04-19 08:14:43');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1604, 'xjSayBjbQllFku5np10qcX3AC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Victim is entitled to be heard at the stage of adjudication of bail application of an accused. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jagjeet Singh and Others Vs Ashish Mishra and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 632 of 2022 decided on 18 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice N.V. Ramana, Justice Surya Kant and Justice Hima Kohili.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15. Having heard learned Senior Counsels for the parties at considerable length, we find that the following questions fall for our consideration:­</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>A. Whether a ‘victim’ as defined under Section 2(wa) of the Code of Criminal Procedure, 1973 (hereinafter, “Cr.P.C.”) is entitled to be heard at the stage of adjudication of bail application of an accused?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>B. Whether the High Court overlooked the relevant considerations while passing the impugned order granting bail to the Respondent­Accused?; and</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">C. If so, whether the High Court’s order dated 10.02.2022 is palpably illegal and warrants interference by this Court?</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16. Until recently, criminal law had been viewed on a dimensional plane wherein the Courts were required to adjudicate between the  accused and the State. The ‘victim’ — the de facto sufferer of a crime had no participation in the adjudicatory process and was made to sit outside the Court as a mute spectator. However, with the recognition that the ethos of criminal justice dispensation to prevent and punish ‘crime’ had surreptitiously turned its  back  on the ‘victim’, the jurisprudence with respect to the rights of victims to be heard and to participate in criminal proceedings began to positively evolve. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17. Internationally, the UN Declaration of Basic Principles of Justice for the Victims of Crime and Abuse of Power, 1985, which was adopted vide the United Nations General Assembly Resolution 40/34, was a landmark in boosting the pro­ victim movement. The Declaration defined a ‘victim’ as someone who has suffered harm, physical or mental injury, emotional suffering, economic loss, impairment of fundamental rights through acts or omissions that are in violation of criminal laws operative within a State, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted, and regardless of the familial relationship between the perpetrator and the ‘victim’. Other international bodies, such as the European Union, also took great strides in granting and protecting the rights of ‘victims’ through various Covenants</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18. Amongst other nations, the United States of America had also made two enactments on the subject i.e.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i) The Victims of Crime Act, 1984 under which legal assistance is granted to the crime­ victims; and</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii) The Victims\' Rights and Restitution Act of 1990. This was followed by meaningful amendments, repeal and insertion of new provisions in both   the   Statutes through an Act passed by the House of Representatives as well as the Senate. In Australia, the Legislature has enacted South Australia Victims of Crime Act, 2001. While in Canada there is the Canadian Victims Bill of Rights. Most of these legislations have defined the ‘victim’ of a crime liberally and have conferred varied rights on such victims. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19. On the domestic front, recent amendments to the Cr.P.C. have recognised a victim’s rights in the Indian criminal justice system. The genesis of such rights lies in the 154th Report of the Law Commission of India, wherein, radical recommendations on the aspect of compensatory justice to a victim under a compensation scheme were made.  Thereafter, a Committee on the Reforms of Criminal Justice System in its Report in 2003, suggested ways and means to develop a cohesive system in which all parts are to work in coordination to achieve the common goal of restoring the lost confidence of the people in the criminal justice system. The Committee recommended the rights of the victim or his/her legal representative “to be impleaded as a party in every criminal proceeding where the charges punishable with seven years’ imprisonment or more”. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20. It was further recommended that the victim be armed with a right to be represented by an advocate of his/her choice, and if he/she is not in a position to afford the same, to provide an advocate at the State’s expense. The victim’s right to participate in criminal trial and his/her right to know the status of investigation, and take necessary steps, or to be heard at every crucial stage of the criminal proceedings, including at the time of grant or cancellation of bail, were also duly recognised by the Committee. Repeated judicial intervention, coupled with the recommendations made from time to time as briefly noticed above, prompted the Parliament to bring into force the Code of Criminal Procedure (Amendment) Act, 2008, which not only inserted the definition of a ‘victim’ under Section 2 (wa) but also statutorily recognised various rights of such victims at different stages of trial. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>21. It is pertinent to mention that the legislature has thoughtfully given a wide and expansive meaning to the expression ‘victim’ which “means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir”<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>22. This Court in  Mallikarjun Kodagali   (Dead)   v.   State   of Karnataka & Ors , while dealing with questions regarding a victim’s right to file an appeal under section 372 of Cr.P.C, observed that there was need to give adequate representation to victims in criminal proceedings.The Court therein affirmed the victim’s right to file an appeal against an order of  acquittal.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23. It cannot be gain said that the right of a victim under the amended Cr.P.C. are substantive, enforceable, and are another facet of human rights. The victim’s right, therefore, cannot be termed or construed restrictively like a brutum fulmen. We reiterate that these rights are totally independent, incomparable, and are not accessory or auxiliary to those of the State under the Cr.P.C. The presence of ‘State’ in the proceedings, therefore, does not tantamount to according a hearing to a ‘victim’ of the crime. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>24. A ‘victim’ within the meaning of Cr.P.C. cannot be asked to await the commencement of trial for asserting his/her right to participate in the proceedings. He/She has a legally vested right to be heard at every step post the occurrence of an offence. Such a ‘victim’ has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision. We may hasten to clarify that ‘victim’ and  ‘complainant/informant’ are two distinct connotations in criminal jurisprudence. It is not always necessary that the complainant/informant is also a ‘victim’, for even a stranger to the act of crime can be an ‘informant’, and similarly, a ‘victim’ need not be the complainant or informant of a felony.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>25.   The above stated enunciations are not to be conflated with certain statutory provisions, such as those present in Special Acts like the Scheduled Cast and Scheduled Tribes (Prevention of Atrocities) Act, 1989, where there is a legal obligation to hear the victim at the time of granting bail. Instead, what must be taken note of is that; First, the Indian jurisprudence is constantly evolving, whereby, the right of victims to be heard, especially in cases involving heinous crimes, is increasingly being acknowledged; Second, where the victims themselves have come forward to participate in a criminal proceeding, they must be accorded with an opportunity of a fair and effective hearing. If the right to file an appeal against acquittal, is not accompanied with the right to be heard at the time of deciding a bail application, the same may result in grave miscarriage of justice. Victims certainly cannot be expected to be sitting on the fence and watching the proceedings from afar, especially when they may have legitimate grievances. It is the solemn duty of a court to deliver justice before the memory of an injustice eclipses. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>46. We set aside the impugned order dated 10.02.2022 (corrected on 14.2.2022) and remit the matter back to the High Court. Respondent No.1 shall surrender and be taken into custody as already directed in paragraph 39 above. We have not expressed any opinion either on facts or merits, and all questions of law are left open for the High Court to consider and decide. The High Court shall decide the bail application afresh  expeditiously, and  preferably within a  period of three months.The appeal is disposed of in the above terms.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '385fff2649e179bf9a1fae70e15ce3f3.jpeg', '9d09f155e035fc5a4dc4317e489dec92.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-19', 1, '', '', '2022-04-19 02:23:21', '2022-04-19 04:06:11'),
(1595, '2dtz7B2adBTyEBNBfw1TzH0oH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Ineligible candidate cannot plead his innocence in the selection process. Permitting ineligibility to triumph would have the effect of perpetuation of illegality which cannot be allowed. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sridevi P.G. Vs Karnataka University Dharwad and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Appeal 100226 of 2021 decided on 11 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Sunil Dutt Yadav and Justice K.S. Hemalekha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The present appeal is filed challenging the order of the learned Single Judge passed in W.P.No.100859/2016 vide order dated 26.08.2021 whereby the appointment of the appellant to the post of Assistant Professor (P.G.) in English vide Annexure-K dated 26.02.2014 came to be quashed and a consequential direction came to be issued to the University to redo the selection process amongst the eligible candidates and to pass orders of appointment. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The parties are referred to by their ranks in the writ proceedings for the purpose of convenience. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The 1st respondent - University by its advertisement at Annexure-A invited applications for appointment of Assistant Professors in English apart from other posts, in response to which the petitioner, respondent No.2 and various other eligible candidates applied. The respondent No.2 came to be selected.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. The said selection came to be assailed on the ground that the respondent No.2 did not have the requisite qualification insofar as the Ph.D. conferred on her was without course work and that she had not completed her NET/SLET/SET which according to the petitioner were mandatory requisites in terms of the recruitment notification at Annexure-A. It was contended that the recruitment notification having prescribed that the applicants were to strictly adhere to the UGC Regulations on Minimum Qualification for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education 2010, (hereinafter referred to as the UGC regulations, 2010) the respondent No.2 did not possess the eligibility. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The respondent No.2 on the other hand had contended that she had Ph.D qualification and had obtained a certificate of exemption for undergoing course work from the University, that course work was not a requirement prescribed by  the  UGC,  2010  Regulations. It was also contended that the petitioner was not entitled for relief as the petition was filed after a delay of about 2 years. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The University on the other hand while justifying the selection had contended that the Selection Commission/ Board of Appointment had followed the procedure under Section 53(a) and 53(7) of the Karnataka State Universities Act, 2000 and had made recommendations for appointment and that interference in a selection process where decision was taken by experts ought not to be made except where malafides are made out which is not so in the present case.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. The learned Single Judge has set aside the appointment of respondent No.2 and the relevant observations and findings are as follows</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>The notification dated 11.01.2014 at Annexure-A prescribes the minimum qualification in terms of the UGC Regulations of 2010.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>As per the eligibility the candidate must possess a minimum of 55% marks in the Masters Degree and must have cleared NET/SLET/SET conducted by UGC or CSIR.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (iii)<span style=\"white-space:pre\">	</span>Exemption is given to candidates who have been accorded Ph.D in accordance with the Regulations of 2009.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv)<span style=\"white-space:pre\">	</span>It is not in dispute that respondent No.2 has not cleared the NET/SLET/SET and did not possess the minimum eligibility.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(v)<span style=\"white-space:pre\">	</span>As per the notification candidates who have completed their Ph.D after 11.07.2009 must have completed the Ph.D. with course work. That as the respondent No.2 had completed Ph.D in the month of December, 2012, she ought to have completed Ph.D degree with course work, which she had not.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(vi)<span style=\"white-space:pre\">	</span>The Court observes that the UGC Regulations, 2010 have been framed in exercise of the power conferred under Clauses (e) and (g) of Sub-Section 26 of University Grants Commission Act, 1956 and minimum qualifications for appointment having been prescribed the same cannot be relaxed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(vii)<span style=\"white-space:pre\">	</span>The Committee of Experts is required to strictly follow the regulations and cannot overlook the regulations which prescribes minimum eligibility qualification.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(viii)<span style=\"white-space:pre\">	</span>The petitioner possessed the minimum qualification and was also the highest marks scorer at the Masters Degree amongst the candidates.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ix)<span style=\"white-space:pre\">	</span>The respondent No.1 - University by granting the certificate of exemption had relaxed the minimum eligibility qualification prescribed by the UGC Regulations.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (x)<span style=\"white-space:pre\">	</span>The respondent No.2 had none of the qualifications viz.,</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a)<span style=\"white-space:pre\">	</span>Had not cleared the 3 eligibility tests prescribed by the UGC or CSIT</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b)<span style=\"white-space:pre\">	</span>Had<span style=\"white-space:pre\">	</span>not<span style=\"white-space:pre\">	</span>obtained a Ph.D degree under Regulations of 2009.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(c)<span style=\"white-space:pre\">	</span>Had not obtained Ph.D. Degree with course work.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>32. Reliance is placed on the judgment of Madhya Pradesh High Court in the case of Dr.Vandana Rajoriya v. Dr.Harisingh Gour University, Sagar and  Others reported in (2019) 2 MPLJ  Page  141  wherein  the Division Bench has observed that the UGC Regulations of 2006 do not give any new right or liability and the amendment is only clarificatory so as to address ambiguity of the UGC Regulations 2009-2010. However, it ought to be noticed that the report of the Expert Committee dated 23.08.2015 though was prior to the amendment to the Regulation on 11.07.2016, the Executive Council had failed to consider the amended UGC Regulations when it decided on 10.02.2017 and approved order of termination on 13.02.2017, all subsequent to the amendment on 11.07.2016. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>36. The explanation for the delay  is  found  at Para 12 of the writ petition and it is contended that on receipt of the information under the Right to Information Act in the month of October, 2015 petition has been filed. It is stated that the information that was obtained relates to the 2nd respondent’s certificate relating to NET/SLET. The marks secured in the subject of English, Department of Studies in English, Karnataka University, Dharwad, as also letter of appointment of the 2nd respondent and without such information, question of filing the writ  petition did not arise. Further it was contended that initial attempts to obtain information from the University did not fructify as University had replied that documents relating to the selection process was in the custody of the Lokayukta as well as retired Justice Sri.Padmaraj Commission. Such assertion is further supplemented by Annexure-R2 filed along with statement of objections of the petitioner in the writ appeal dated 09.11.2021 as well as Annexure-R1 which is a communication dated 18.09.2015 to the effect that the documents relating to the Ph.D. Course certificate of the petitioner were all kept in a sealed cover for inspection of records by the Enquiry Commission and Lokayukta. Such explanation as could be discerned from the pleadings and documents referred could be stated to be sufficient explanation and it cannot be stated that there was an element of negligence and delay which was unreasonable which would disentitle the petitioner for relief.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>38. The reliance by the respondent no.2 on the observations made regarding laches in  P.S.Sadasivaswamy v. State of Tamil Nadu reported in (1975) 1 SCC 152 cannot be construed as laying down an inflexible rule. Further the observations were made in the context of the particular factual matrix where there was delay of 14 years, the petitioner had not challenged the promotion of respondent no.3 and respondent no.4  and the court had observed that there were three occasions where he could have challenged but had kept quite. The present factual matrix is entirely different.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>40. In the case of Meena Sharma v. State of Jammu & Kashmir and Others reported  in  (2020)  15  SCC 648, though the delay of 4 years was taken note of for refusal of relief, it is relevant to note that it was the second round of litigation challenging appointment. It was also noticed that in the first round of litigation, when the writ petition was filed in 2009 Annexure A4 to the writ petition had indicated the name of the selected person and having kept quite second writ was filed in 2011 i.e., four years after the selection. Further it is relevant to note the finding that even on merits there was no case.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>44. Further, it must be noted that it cannot be stated that the respondent no.2 being innocent cannot be victimized for no fault. It must be noted that innocence  has nothing to do with ineligibility, nor does innocence override ineligibility. Permitting ineligibility to triumph would have the effect of perpetuation of illegality which cannot be allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 45. In the facts of the present case, the delay when pitted against illegality in terms of the ineligibility, ineligibility has to give way and delay cannot be allowed to defeat the illegality.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>46. Though much is made of the information having been obtained by a former syndicate member, the person obtaining information through RTI i.e., source would be irrelevant where the information obtained was not challenged as regards its veracity and cannot be excluded from consideration. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>47. The mere continuance of the respondent No.2 for a period of 5 years 7 months from the date of filing of the petition during which period the respondent No.2 is stated to have been promoted would be of no consequence as any equity by continuance in service for substantial period of time during the pendency of the litigation cannot have the effect of overriding the illegality as made out. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>48. Accordingly, the contention of delay and latches is also liable to be rejected.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">49. </font></span><font face=\"Calibri, sans-serif\">ORDER </font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>The appeal is dismissed. The order of the learned Single Judge is upheld and the directions at (iii) of the order in writ petition to be implemented by the respondent – University.</b></span><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd556227e10d30e7843bd1881af194eed.JPG', '4a95857fc56dc8596fe0785b4e298e33.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-17', 1, '', '', '2022-04-16 18:57:09', '2022-04-17 17:06:56'),
(1596, '0IktPyyEOY6jvj4Xxr2ccoOLJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Where information obtained under the RTI Act is not challenged as regards its veracity, the source of information is irrelevant and cannot be excluded from consideration. Karnataka High Court. ', '<p><b>Sridevi P.G. Vs Karnataka University Dharwad and others.</b></p><p><b>Writ Appeal 100226 of 2021 decided on 11 April 2022.</b></p><p><b>Justice S. Sunil Dutt Yadav and Justice K.S. Hemalekha.</b></p><p><b>The present appeal is filed challenging the order of the learned Single Judge passed in W.P.No.100859/2016 vide order dated 26.08.2021 whereby the appointment of the appellant to the post of Assistant Professor (P.G.) in English vide Annexure-K dated 26.02.2014 came to be quashed and a consequential direction came to be issued to the University to redo the selection process amongst the eligible candidates and to pass orders of appointment.</b></p><p><b>2. The parties are referred to by their ranks in the writ proceedings for the purpose of convenience.</b></p><p><b>3. The 1st respondent - University by its advertisement at Annexure-A invited applications for appointment of Assistant Professors in English apart from other posts, in response to which the petitioner, respondent No.2 and various other eligible candidates applied. The respondent No.2 came to be selected.</b></p><p><b>4. The said selection came to be assailed on the ground that the respondent No.2 did not have the requisite qualification insofar as the Ph.D. conferred on her was without course work and that she had not completed her NET/SLET/SET which according to the petitioner were mandatory requisites in terms of the recruitment notification at Annexure-A. It was contended that the recruitment notification having prescribed that the applicants were to strictly adhere to the UGC Regulations on Minimum Qualification for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education 2010, (hereinafter referred to as the UGC regulations, 2010) the respondent No.2 did not possess the eligibility.</b></p><p><b>5. The respondent No.2 on the other hand had contended that she had Ph.D qualification and had obtained a certificate of exemption for undergoing course work from the University, that course work was not a requirement prescribed by  the  UGC,  2010  Regulations. It was also contended that the petitioner was not entitled for relief as the petition was filed after a delay of about 2 years.</b></p><p><b>6. The University on the other hand while justifying the selection had contended that the Selection Commission/ Board of Appointment had followed the procedure under Section 53(a) and 53(7) of the Karnataka State Universities Act, 2000 and had made recommendations for appointment and that interference in a selection process where decision was taken by experts ought not to be made except where malafides are made out which is not so in the present case.</b></p><p><b>8. The learned Single Judge has set aside the appointment of respondent No.2 and the relevant observations and findings are as follows</b></p><p><b>(i) The notification dated 11.01.2014 at Annexure-A prescribes the minimum qualification in terms of the UGC Regulations of 2010.</b></p><p><b>(ii) As per the eligibility the candidate must possess a minimum of 55% marks in the Masters Degree and must have cleared NET/SLET/SET conducted by UGC or CSIR.</b></p><p><b>(iii) Exemption is given to candidates who have been accorded Ph.D in accordance with the Regulations of 2009.</b></p><p><b>(iv) It is not in dispute that respondent No.2 has not cleared the NET/SLET/SET and did not possess the minimum eligibility.</b></p><p><b>(v) As per the notification candidates who have completed their Ph.D after 11.07.2009 must have completed the Ph.D. with course work. That as the respondent No.2 had completed Ph.D in the month of December, 2012, she ought to have completed Ph.D degree with course work, which she had not.</b></p><p><b>(vi) The Court observes that the UGC Regulations, 2010 have been framed in exercise of the power conferred under Clauses (e) and (g) of Sub-Section 26 of University Grants Commission Act, 1956 and minimum qualifications for appointment having been prescribed the same cannot be relaxed.</b></p><p><b>(vii) The Committee of Experts is required to strictly follow the regulations and cannot overlook the regulations which prescribes minimum eligibility qualification.</b></p><p><b>(viii) The petitioner possessed the minimum qualification and was also the highest marks scorer at the Masters Degree amongst the candidates.</b></p><p><b>(ix) The respondent No.1 - University by granting the certificate of exemption had relaxed the minimum eligibility qualification prescribed by the UGC Regulations.<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(x) </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The respondent No.2 had none of the qualifications viz.,<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(a) </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Had not cleared the 3 eligibility tests prescribed by the UGC or CSIT<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(b) </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Had </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">obtained a Ph.D degree under Regulations of 2009.<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(c) </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Had not obtained Ph.D. Degree with course work.</span></b></p><p><b>32. Reliance is placed on the judgment of Madhya Pradesh High Court in the case of Dr.Vandana Rajoriya v. Dr.Harisingh Gour University, Sagar and  Others reported in (2019) 2 MPLJ  Page  141  wherein  the Division Bench has observed that the UGC Regulations of 2006 do not give any new right or liability and the amendment is only clarificatory so as to address ambiguity of the UGC Regulations 2009-2010. However, it ought to be noticed that the report of the Expert Committee dated 23.08.2015 though was prior to the amendment to the Regulation on 11.07.2016, the Executive Council had failed to consider the amended UGC Regulations when it decided on 10.02.2017 and approved order of termination on 13.02.2017, all subsequent to the amendment on 11.07.2016. </b></p><p><b>36. The explanation for the delay  is  found  at Para 12 of the writ petition and it is contended that on receipt of the information under the Right to Information Act in the month of October, 2015 petition has been filed. It is stated that the information that was obtained relates to the 2nd respondent’s certificate relating to NET/SLET. The marks secured in the subject of English, Department of Studies in English, Karnataka University, Dharwad, as also letter of appointment of the 2nd respondent and without such information, question of filing the writ  petition did not arise. Further it was contended that initial attempts to obtain information from the University did not fructify as University had replied that documents relating to the selection process was in the custody of the Lokayukta as well as retired Justice Sri.Padmaraj Commission. Such assertion is further supplemented by Annexure-R2 filed along with statement of objections of the petitioner in the writ appeal dated 09.11.2021 as well as Annexure-R1 which is a communication dated 18.09.2015 to the effect that the documents relating to the Ph.D. Course certificate of the petitioner were all kept in a sealed cover for inspection of records by the Enquiry Commission and Lokayukta. Such explanation as could be discerned from the pleadings and documents referred could be stated to be sufficient explanation and it cannot be stated that there was an element of negligence and delay which was unreasonable which would disentitle the petitioner for relief.</b></p><p><b>38. The reliance by the respondent no.2 on the observations made regarding laches in  P.S.Sadasivaswamy v. State of Tamil Nadu reported in (1975) 1 SCC 152 cannot be construed as laying down an inflexible rule. Further the observations were made in the context of the particular factual matrix where there was delay of 14 years, the petitioner had not challenged the promotion of respondent no.3 and respondent no.4  and the court had observed that there were three occasions where he could have challenged but had kept quite. The present factual matrix is entirely different.</b></p><p><b>40. In the case of Meena Sharma v. State of Jammu & Kashmir and Others reported  in  (2020)  15  SCC 648, though the delay of 4 years was taken note of for refusal of relief, it is relevant to note that it was the second round of litigation challenging appointment. It was also noticed that in the first round of litigation, when the writ petition was filed in 2009 Annexure A4 to the writ petition had indicated the name of the selected person and having kept quite second writ was filed in 2011 i.e., four years after the selection. Further it is relevant to note the finding that even on merits there was no case.</b></p><p><b>44. Further, it must be noted that it cannot be stated that the respondent no.2 being innocent cannot be victimized for no fault. It must be noted that innocence  has nothing to do with ineligibility, nor does innocence override ineligibility. Permitting ineligibility to triumph would have the effect of perpetuation of illegality which cannot be allowed.</b></p><p><b>45. In the facts of the present case, the delay when pitted against illegality in terms of the ineligibility, ineligibility has to give way and delay cannot be allowed to defeat the illegality.</b></p><p><b>46. Though much is made of the information having been obtained by a former syndicate member, the person obtaining information through </b></p><p><b>47. The mere continuance of the respondent No.2 for a period of 5 years 7 months from the date of filing of the petition during which period the respondent No.2 is stated to have been promoted would be of no consequence as any equity by continuance in service for substantial period of time during the pendency of the litigation cannot have the effect of overriding the illegality as made out.</b></p><p><b>48. Accordingly, the contention of delay and latches is also liable to be rejected.</b></p><p><b>49. ORDER</b></p><p><b>The appeal is dismissed. The order of the learned Single Judge is upheld and the directions at (iii) of the order in writ petition to be implemented by the respondent – University.</b></p><p><br></p>', 'fcad1682c70a1edeed1395a080b4ed02.JPG', '3a74822e06704b5aca95075731a72f97.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-17', 1, '', '', '2022-04-17 17:31:04', '2022-04-17 17:33:44');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1602, 'qZCxv1TLQk72VvvGefM8hRCBq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'High Court. In an intra-court appeal, the element of interference with the discretion exercised is much more restricted when compared to orders emanating from the district judiciary. Meghalaya High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>North Eastern Indira Gandhi Regional Institution of Health and Medical Sciences and another Vs Bisakha Goenka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WA 7 of 2022 decided on 25 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice Sanjib Banerjee and Justice W. Diengdoh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The challenge here is to an order of March 15, 2022 by which the\r\nrespondent writ petitioner has been permitted to participate in the\r\ncounselling process for obtaining admission to the MBBS course at the\r\nNorth Eastern Indira Gandhi Regional Institute of Health and Medical\r\nSciences (NEIGRIHMS).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts are not in dispute. The writ court noticed the case to be\r\nthat the writ petitioner was not aware that she had been forwarded the\r\nlink for e-counselling as the same did not appear in the regular inbox of\r\nher e-mail. However, after the initial round of e-counselling was held, the\r\nwrit petitioner discovered that the link sent by NEIGRIHMS via mail had\r\nlodged in her spam mail instead of showing up in the inbox.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. It appears that the petitioner did not participate in the initial\r\ncounselling and was duly marked as absent. Upon such initial ecounselling, 14 of the 18 seats reserved for the relevant category to which\r\nthe writ petitioner belongs were filled up and a notice was issued for\r\nfurther e-counselling to be held on March 7, 2022 for the remaining four\r\nseats in the category.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. It was at this stage that the writ petitioner approached the Court.\r\nThe impugned order records that on March 9, 2022, the writ court had\r\ndirected that the case be kept on hold to await the final acceptance of the\r\nseats for which the candidates would have to indicate their preference by\r\nMarch 11, 2022. On March 14, 2022 when the matter was taken up again,\r\nthe writ petitioner filed an affidavit stating therein that the fourth of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">remaining four candidates, one Arkajyoti Debnath, did not report for the\r\ne-counselling as he had already secured admission elsewhere.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>5. An affidavit was filed on behalf of the appellants herein which,\r\naccording to the writ court, did not “dispute the fact that one seat is still\r\nvacant.” It is in such circumstances that the writ court, upon being\r\nsatisfied that the writ petitioner had been prevented by sufficient cause\r\nfrom tendering her candidature at the initial e-counselling, directed that\r\nthe appellants herein shall facilitate counselling for the writ petitioner\r\nwithin a week from the date of the order, upon notice to the writ\r\npetitioner. The appellants were, thereafter, directed to take into\r\nconsideration the merit of the writ petitioner and complete the process of\r\nselection for the fourth seat expeditiously, keeping in mind that the\r\nsession had already commenced.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. The principal ground urged by the appellants is that there is no\r\ndispute that the appellants had forwarded the information in time to the\r\nwrit petitioner and it is the petitioner’s case that the mail sent by the\r\nappellants had gone to her spam mail folder. The appellants submit that\r\nthe writ petitioner ought to have been vigilant as the writ petitioner could\r\nhave got the information otherwise from the first appellant’s website as </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to the date of initial e-counselling. The appellants say that when the\r\ncandidate was careless and had missed the bus, other candidates in whom\r\na right may have vested to participate in the process of obtaining a seat,\r\ncould not have been prejudiced.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n7. Ordinarily, when there is no mistake on the part of an authority to\r\ndo a thing that it was required to do, the indulgence shown to the writ\r\npetitioner as in this case may not have been warranted. However, as it\r\ntranspires, the last of the four remaining candidates did not opt for the\r\nfinal seat in the reserved category at NEIGRIHMS. There is no doubt that\r\nthe wait-listed candidates would, thereupon, be offered a chance to apply\r\nfor and obtain such seat. However, in such scenario no right vested in the\r\nwait-listed candidates. In the peculiar facts of the case, the writ court\r\nexercised its discretion, particularly since no right had vested in any\r\nother, to allow the writ petitioner to be offered an opportunity to\r\nparticipate in a further process of counselling.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8. In an intra-court appeal, the element of interference with the\r\ndiscretion exercised is much more restricted than when appellate\r\nauthority is exercised over orders emanating from the district judiciary.\r\nThere was an element of discretion available to the writ court, considering </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the peculiar facts of this case; and, though the fundamental principle that\r\nought to have guided the writ court was that upon a default being\r\ncommitted by a candidate, whatever be the circumstances, the\r\nconsequences of the default must rest with the candidate, since the last\r\nplaced candidate among the remaining four in this case, quite\r\nfortuitously, did not accept the seat, a window opened up for the writ\r\npetitioner which has been offered by the writ court in exercise of its\r\ndiscretion. In the circumstances in which the discretion has been\r\nexercised, it cannot be said to be perverse. As such, the order impugned\r\ndoes not call for any interference.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. The grounds urged by the appellants that a right had vested in the\r\nwait-listed candidates, does not hold much water. A right inheres in a\r\nwait-listed candidate for his candidature to be considered, upon the\r\noriginal list not being filled up or one or more from the original list opting\r\nout. In this case, when it was fairly obvious that if the writ petitioner had\r\nmerely attended the e-counselling, she would have obtained the seat, and\r\nthere is no reason to believe that the writ petitioner would have\r\ndeliberately acted to her detriment, the window that opened up\r\nfortuitously permitted the exercise of the discretion by the writ court. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">However, though it does not appear that any right vested in any waitlisted candidate that has been prejudiced as a result of the impugned\r\norder, if any of them lodges a challenge and succeeds, the consequences\r\nhave to be borne by the writ petitioner. To such extent, the writ\r\npetitioner’s admission, if at all, will be provisional for a period of six\r\nmonths from date.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>10. WA No. 7 of 2022 is disposed of on the above basis.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11. There will be no order as to costs.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'bb194f09f87b2de81eca284b54751528.JPG', 'bdb649acf6d751a13d3ad80b017fe35a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-19', 1, '', '', '2022-04-18 18:28:36', '2022-04-19 12:26:16'),
(1605, 'gWJfk63ub1aPOMc26KMOBtp7m', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Nominated members have no right to cast their votes in the election to President and Vice President under the Karnataka Municipalities Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Laksmikanta K and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 4457 of 2022 decided on 18 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Alok Aradhe and Justice S. Vishwajith Shetty.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The Council was constituted on 20.05.2018, which has 29 elected members as well as 4 nominated members and one member of Legislative Assembly. The President of the Council was elected on 20.11.2020. The petitioners were nominated as Councilors of the Council on 27.02.2021. The Tahsildar and Election Officer issued calendar of events by which election to the post of President of the Council was notified and the same was scheduled to be held on 30.12.2021.The petitioners who are the nominated members of the Council, filed a writ petition, in which inter alia declaration was sought to the effect that they are entitled to participate in the process of election to the post of President of the Council. A bench of this court by an interim order dated 29.12.2021 permitted the petitioners to participate in the process of election for the post of President of the Council subject to final decision of the writ petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. An election was held on 30.12.2021, in which the petitioners cast their votes for the election to the post of the President of the Council. The petitioner in WP No.834/2022 filed an I.A. for impleading on 10.01.2022 in W.P.No.24308/2021, filed by the petitioners. The petitioner in WP No.834/2022 thereafter withdrew the interlocutory application for impleading on 07.02.2022. Thereafter, a bench of this court vide order dated 22.02.2022 permitted the petitioners in W.P.No.24308/2021 to withdraw the writ petition with the liberty as prayed for and extended the interim order for a period of 7 days. In the aforesaid factual background, this petition has been filed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Learned Senior counsel for the petitioner submitted that the petitioners who are nominated councilors of Malur Town Municipal Council have assailed the validity of section 11(1)(b) of the Karnataka Municipalities Act, 1964 as well as the Constitutional validity of proviso to Article 243-R(2)(a) of the Constitution of India on the ground that same is violative of Article 14 and is contrary to basic structure to constitution of India. It is urged that alternatively the petitioners have sought the relief of reading down the proviso to Section 11(1)(b) of the Karnataka Municipalities Act so as to not apply to the elections for the post of President and Vice President of Municipal Council held under Section 42(2) of the Karnataka Municipalities Act. It is urged that the provisions of Section 11(1)(b) of the Act do not apply to meeting held to elect the President and therefore, the petitioners have right to vote in the aforesaid election.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. It is contended that Karnataka Municipalities (President and Vice President) Election Rules, 1965 (hereinafter referred to as \'the Rules\' for short) does not bar the nominated members from participating in the election to the post of President in the Municipality. It is further contended that Article 243R and the Rules make a distinction between the right of members to vote in the election and the meetings of council as contemplated under Chapter III of the Act. It is also contended that the definition of the ‘councilor’ in the Act and the language of Rules made thereunder does not exclude nominated councilors from voting in the election to the post of President. It is argued that the expression ‘meeting’ used in proviso to Section 11(1) of the Act is distinct from an election of the President of Municipal council. Our attention has also been invited to Section 42(2) of the Act and it is urged that scheme and arrangement of the Act indicates that detailed procedure for meetings envisaged under Chapter IIIA is distinct for the purpose of electing a President in the Municipal Council. It is contended that meeting under Section 47 of the Act is different from the election of President of the Council.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. Article  243R(2)(a) of the Constitution of India provides for composition of Council. Article 243R (l) provides that the Council shall have elected members whereas, Article 243R (2) provides that a member can also be nominated to the Council. The proviso to Article 243R (2) (a) mandates that nominated members of the Council shall not have a right to vote in the meetings of the Council.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. Similarly, Section ll(l)(b) of the Act  provides for composition of the Council. Section ll(l) (a) provides that the Council shall have elected members whereas,Section ll(l)(b) provides that not more than 5 persons can be nominated as Councilors. The proviso to Section ll(l) of the Act provides that the nominated members shall not have a right to vote in the meetings of the Council.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. There is a presumption of Constitutional validity of a provision and the burden is on the person to plead and prove its unconstitutionality. It is trite law that party invoking the protection of Article l4 has to make an averment with details to sustain such a plea and has to adduce material to establish its allegations and the burden is on the party to plead and prove that its right under Article l4 has been infringed. It is well settled legal proposition that Article l4 can be invoked if unequals are treated equally or equals are treated differently. It is equally well settled in law that mere differentiation or inequality of treatment does not per se amount to discrimination the inhibition of equal protection clause and to attract Article l4 it is necessary to demonstrate that selection or differentiation is unreasonable or arbitrary and does not rest on any rational basis having regard to the object which the legislature has in view while making the law in question. It is trite law that party invoking the protection of Article l4 has to make an averment with details to sustain such a plea and has to adduce material to establish its allegations and the burden is on the party to plead and  prove that its right under Article l4 has been infringed. It is equally well settled that in the absence of any pleading, the challenge to the constitutional validity is to be rejected in limine.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. In the light of aforesaid well settled legal position, we may advert to the facts of the case. Article 243R (2) (a) has been assailed as violative of Article l4 and the Basic Structure of the Constitution of India. It is pertinent to note that the nominated and elected members cannot be treated as belonging to one class. The fundamental difference is that the elected Councillors are elected to the office by a popular vote whereas, nominated members are appointed as Councillors. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. Thus, the Supreme Court itself while dealing with scope and ambit of Article 243R held that the Constitution itself makes a distinction between elected members and nominated members who play essentially an advisory role. The elected members of the Council are chosen by popular vote and carry with them, the mandate of the people, whereas, nominated members of the Council are appointed as Councilors. The elected members and nominated members cannot be said to be belonging to the same class and there is no pleading that differentiation between elected and nominated members is either unreasonable or is arbitrary or that it does not rest on any rational basis. In view of aforesaid enunciation of law, challenge to the validity of Article 243R (2) (a) that it violates Article l4 of the Constitution of India, fails.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21. It is pertinent to note that there is no pleading in the writ petition as to what is the basic structure of the Constitution and how Article 243R (2) (a) violates the basic structure of the Constitution. In the absence of any pleading on the aforesaid aspect of the matter, the challenge to Article 243R (2) (a) on the ground that it violates the basic structure of the Constitution deserves to be repelled in limine. Even otherwise, the right to vote is not a fundamental right and therefore, Article 243R (2) (a) which provides that nominated members shall not have right to vote in the meeting of the Council does not violate the basic structure of the Constitution. Article 243R (2) (a) does not suffer from any infirmity, therefore, the question of reading down the same does not arise. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22. Section ll(b) of the Act is in consonance with Article 243R (2) (a) of the Constitution and therefore, for the reasons assigned in the preceding paragraph, the same cannot be termed as unconstitutional. Section ll(b) of the Act does not suffer from any unconstitutionality and therefore, the question of reading down the same also does not arise. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23. The contention that bar contained in proviso to Article 243R(2) does not apply to the election of Chairperson of Municipality concerned, the same also does not deserve acceptance, as the proviso specifically bars the nominated members who oath in the meetings of Municipality. A Conjoint reading of Section 42(2) of the Act and Rule 3 of the Rules leaves no iota of doubt that the President has to be elected in a meeting of the Council. Therefore, the contention that the bar which disentitles the nominated members to vote in the meeting for election to the post of President and Vice- President of the Council does not apply to a meeting held for election to the post of President and Vice-President of the Council does not deserve acceptance. Similarly, the contention that Section 2(6), Section 42(2) of the Act entitles the nominated member to vote for election for the post of President of the Council is concerned, the same deserves to be repelled in view of bar contained in Article 243R(2) and in Section ll(l) of the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24. So far as reliance placed on division bench of decision of Allahabad High Court in KHALIQUZ ZAMAN SUPRA is concerned, suffice it to say that division bench of Allahabad High Court held that the word \'meeting\' used in Article 243R (2) (a) of the Constitution does not include a meeting   held  for election, as Section 54 (l) of the UP Municipalities Act would be rendered unconstitutional. Section 54(l) of the UP Municipalities Act provided that vice- president shall be elected from among the elected as well as nominated members. However, in the instant case, there is no provision like Section 54 in the Act and therefore, the aforesaid decision does not apply to the obtaining factual matrix of the case. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25. This writ petition has been filed in pursuance of liberty granted by a learned Single Judge of this Court, to file a fresh writ petition assailing the validity of Section ll(l)(b) of the Act. We have dealt with issue on merits and therefore, it is not necessary for us to decide the issue with regard to maintainability of the writ petition. In view of preceding analysis, we do not find any merit in the writ petition. The same fails and is hereby dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fe8b4d44efdb04ec27362cfdbbb26067.JPG', 'ce4a093d911e308cc78f7f49e7df28fc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-20', 1, '', '', '2022-04-19 18:38:34', '2022-04-20 07:13:05'),
(1606, '5mFpLilguPug6ZtPnsMzcGJSA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'An absolute owner of a property is entitled to bequeath his properties even to strangers and the Will cannot be called suspicious on this ground. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Saroja Ammal Vs M. Deenadayalan and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2828 of 2022 decided on 8 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemat Gupta and Justice V. Ramasubramanian.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Aggrieved by the judgment and decree of the High Court of Judicature at Madras in a second appeal, reversing the concurrent judgments and decrees of both the Courts below and thereby dismissing her suit for declaration of title and injunction, the original plaintiff has come up with the above appeal.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. The appellant filed a suit in O.S. No.25 of 2004 on the file of the sub­court, Krishangiri for a declaration of title and for permanent injunction in respect of certain properties. Her claim was based upon the last Will and Testament dated 15.07.1992 of one Chi. Munisamy Chettiar, whom the appellant claimed to be her husband. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The six sons and four daughters of Munisamy Chettiar allegedly born through his first wife were impleaded as defendant Nos.1 to 10 in the suit. The defendant Nos.2 and 3 filed a written statement, which was adopted by defendants 1, 5 and 7 to 10, contending that the appellant was not the wife of their father and that she was actually the legally wedded wife of one Marimuthu Gounder and that she also gave birth to two daughters in her marriage. Though defendants 4 and 6 filed a separate written statement, they also opposed the suit on the same grounds as the other defendants did. The truth and validity of the Will was also questioned by the defendants. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The first respondent herein, who was the sixth defendant in the said suit, filed an independent suit in O.S No.35 of 2004, seeking a declaration of his title and for a permanent injunction, against the appellant herein.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. Both these suits were taken up together and by a judgment and decree dated 30.06.2008, the trial Court decreed the suit filed by the appellant herein, holding that the appellant was the second wife of the testator and that the Will stood proved. The independent suit filed by the first respondent herein was also decreed, as the same concerned one item of property. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. Aggrieved by the decree passed in the appellant’s suit, the first respondent herein filed a regular first Appeal in A.S No.26 of 2008. But the first appellate Court dismissed the appeal by a judgment and decree dated 23.12.2009. Therefore, the first respondent herein filed a second appeal on the file of the High Court of Judicature at Madras. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. On the first question of law, the High Court  held   that,</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)  long and continuous cohabitation of a man and a woman;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) their treatment as such for a number of years by the society; and</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii) the fact that they are living under the same roof, may ordinarily lead to a presumption that they are living as husband and wife, but the benefit of such presumption will not be available if either of the spouses had been married to another person. Since on facts, the appellant was married to   one Marimuthu Gounder and had also borne two children for him, the High Court answered the first question of law against the appellant herein.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. The second question of law was also answered by the High Court against the appellant on the ground that there were suspicious circumstances surrounding the execution of the Will and that the Will cannot be taken to have been proved in accordance with law. As a result of both the questions of law being answered against the appellant, the High Court allowed the second appeal filed by the first respondent herein. Therefore, the plaintiff, who is back to square one, is before us. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. At the outset we should say that the question whether the appellant was the legally wedded wife or was in an illicit relationship is not germane   to  decide whether the Will propounded by her is true, genuine and valid. In fact this position has been understood clearly by the High Court, as seen from paragraph 12 of the impugned judgment, where the High Court has stated that irrespective of whether the plaintiff was the wife of Munisamy Chettiar or not, she will be entitled to the relief of declaration and injunction, if she was able to prove that the Will was executed by the testator in a sound and disposing state of mind. Therefore, it is enough for us to confine our discussion only to the second question of law framed by the High Court for consideration<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. The appellant examined herself as PW­1 and marked the Will in question as Exhibit A­9. It was a registered Will. One of the attestors of the Will was examined as PW­2. To show that the testator was in a sound and disposing state of mind, the appellant also examined three witnesses who had purchased a few properties from the testator both before and after the execution of the Will. All of them stated that the testator was in a sound and disposing state of mind. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. The defendants placed heavy reliance upon  Exhibit B­21, which is a medical report and discharge summary of the testatorMunisamy Chettiar. But the same revealed that the testator just had high fever and diabetic foot, two months before the execution of the Will. Actually the testator died only after four years of the execution of the Will, in September, 1996.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. The trial Court and the first appellate Court also took note of Exhibit A­13, which was a complaint lodged by the testator on 12.05.1986 against his sons with the Director General of Police. In the said complaint the testator had expressed fear for his life and  properties. A registered  partition  deed dated 21.01.1978 marked as Exhibit A­2 showed that the testator and his six sons had partitioned the family properties and that what was bequeathed  by the testator through the Will was only the properties that fell to his share. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. In view of all the above factors, the trial Court and the first appellate Court held that the Will was proved in accordance with law and that there </b></font></span><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">were no suspicious circumstances. But unfortunately the High Court re­appreciated the entire evidence all over again and came to an independent conclusion that there were suspicious circumstances surrounding the execution of the Will. It appears that the suspicion that the defendants were able to create in the mind of the learned Judge about the character of the appellant, led to the conclusion that there were suspicious circumstances surrounding the execution of the Will.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">16. However, defending the judgment of the High Court, it was contended by the learned senior counsel for the first respondent that once the relationship between Munisamy Chettiar and the appellant, as claimed by her, was proved to be false, the very foundation of the Will propounded by the appellant would go and that there was ample material on record to show that the appellant could not have been living with the testator. It is further contended by the learned senior counsel for the first respondent that the trial Court and the first appellate Court grossly erred in drawing certain presumptions on the basis of a registered partition deed of the year 1978 between Munisamy Chettiar and his sons and that even the police complaint was only against two sons. Drawing our attention to Exhibit B­21, the learned senior counsel for the first respondent contended that Munisamy  Chettiar could not have been in a sound and disposing state of mind at the time of the alleged execution of the </font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Will and that the trial Court and the first appellate Court overlooked an important fact namely that Munisamy Chettiar had a problem with his eye­sight. According to the learned senior counsel for the first respondent, the High Court had the power under Section 73 of the Evidence Act,1872  to compare the signatures and render a finding and that the active participation of the appellant in the execution of the Will and the non examination of one of the attestors were all suspicious circumstances. The total non­ exclusion of the legal heirs, according to the learned senior counsel for the first respondent was also one of the important aspects that has been overlooked by the trial Court and the first appellate Court. In support of his contentions, the learned senior counsel for the first respondent also relied upon the decisions of this Court in  Pentakota Satyanarayana and Others vs. Pentakota Seetharatnam and Others and Indra Sarma vs. V.K. V. Sarma. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17. But all the above arguments of the learned senior counsel for the first respondent  evolve only around facts and the appreciation of evidence. As we have pointed out earlier, the truth and validity of the Will propounded by the appellant did not depend upon whether the appellant was a legally wedded wife or mistress of the testator or whether she was in an unacceptable relationship with the testator. The High Court itself accepted this position in paragraph 12 of the impugned judgment. In any case, the fact that the appellant was living with the testator for a long period of time was borne out by the evidence on record and the findings recorded by the Courts concurrently in this regard, could not have been over turned by the High Court by framing a question of law. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. Insofar as the Will is concerned, the fact</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) that all the sons had been provided their respective shares under a registered partition deed of the year 1978;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) that the testator in fact had given a police complaint against his own sons;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii) that none of the children of the testator except defendant Nos.2 and 6 went into the witness box to support the stand taken in written statement; </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv)  that the Will was a registered Will of the year 1992, after the execution of which the testator lived for four years;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(v) that Exhibit B­21 hospital record merely shows that the testator had high fever and diabetic foot, two months before the execution of the Will; and  <br>(vi)  that the appellant examined at least one of the attestors of the Will, were sufficient for the trial Court and the first appellate Court to come to the conclusion that the Will was true and valid and that there were no suspicious circumstances. The High Court re­appreciated the very same evidence to come to a different conclusion in a second appeal under Section 100 of the Code of Civil Procedure, 1908. Therefore, the impugned judgment is liable to be set aside. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">19. The decision in Pentakota Satyanarayana (supra), turned entirely on facts. In that case, the propounder of the Will was found by all the Courts to have proved the execution of the Will by the testator when in a sound and disposing state of mind. But the High Court held that there were suspicious circumstances. </font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">While over turning the verdict of the High Court, this Court indicated the circumstances which falsified the claim of suspicious circumstances. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>20. Similarly the decision in Indra Sarma (supra) relied upon by the learned senior counsel for the first respondent, arose out of a question whether a live­in relationship would amount to a domestic relationship within the meaning of the said expression under Section 2(f) of the Protection of Women from Domestic Violence Act, 2005. This decision will not take the first respondent anywhere, since the absolute owner of a property is entitled even to bequeath his properties in favour of strangers. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>21. Therefore, in fine, the appeal is allowed, the impugned judgment and decree of the High Court are set aside and the judgment and decree of the trial Court and the first appellate Court are restored.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '528d7a3be5ca154ef22bb28e62053b81.jpeg', 'd56b061f2ccf3c76ab3debd58bf5dce5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-20', 1, '', '', '2022-04-19 19:25:25', '2022-04-20 12:29:17');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1610, 'wOs9mhEcd8W59WqgOOHyo6vNo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Gift of joint family property by Kartha without any charitable or religious purpose does not come within the meaning of \'pious purpose\'. Such gift is not binding on the minor. Supreme Court.   ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K.C. Laxmana Vs K.C. Chandrappa Gowda and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2582 of 2010 decided on 19 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Abdul Nazeer and Justice Krishna Murari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. K.C.Chandrappa Gowda filed a suit against his father­ K.S. Chinne Gowda and one K.C. Laxmana for partition and separate possession of his one­third share in the suit­schedule property and for a declaration that the gift/settlement deed dated 22.03.1980 (Ex. P­1) executed by the first defendant­K.S. Chinne Gowda in favour of the second defendant ­K.C. Laxmana as null and void. According to the plaintiff, the schedule property belongs to the joint family consisting of himself, the first defendant and one K.C. Subraya Gowda. It was further contended that the first defendant had no right to transfer the schedule property in favour of the second defendant as he is not a coparcener or a member of their family. Consequently, it was contended that the alienation made without the plaintiff’s consent is null and void and thus not binding on him</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. Article 58 of the Second Schedule to the Limitation Act provides for the period of limitation to file a suit to obtain any other declaration. The period of limitation under this article is three years from the date when the right to sue first accrues. It is a residuary article governing all those suits for declaration which are not specifically governed by any other articles in the Limitation Act. Article 109 is the special Article to apply where the alienation of the father is challenged by the son and the property is ancestral and the parties are governed by Mitakshara law. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. The word ‘alienation’ in this article includes ‘gift’. In order to attract   Article   109,   the   following   conditions   have   to   be   fulfilled, namely,</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(1) the parties must be Hindus governed by Mitakshara;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(2) the suit is for setting aside the alienation by the  father at  the instance of the son;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(3) the property relates to ancestral property; and   </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(4)  the alienee has taken over possession of the property alienated by the father. This article provides that the period of limitation is twelve years from the date the alienee takes possession of the property.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. The second question for consideration is whether the transfer of property made by the first defendant in favour of the second defendant under Ex.P­1 was for a pious purpose. As noticed above, the second defendant has adopted the written statement filed by the first defendant before the trial court wherein it was admitted that the schedule property was a joint family property belonging to the HUF consisting of the plaintiff, his father the second defendant and his brother one K.C. Subbaraya Gowda, all three of whom were coparceners in the HUF. The second defendant is not a coparcener or a member of this family. It was also admitted that the schedule property was gifted to him by the settlement/gift deed dated 22.03.1980  (Ex.P­1) by the first defendant who was the Karta of the HUF. The plaintiff was not a signatory to the said document. In fact, the plaintiff has categorically averred in the plaint that he did not consent to the gifting of the schedule property in favour of the second defendant vide the said deed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. It is trite law that Karta/Manager of a joint family property may alienate joint family property only in three situations, namely,</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) legal necessity</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) for the benefit of the estate and</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii) with the consent of all the coparceners of the family. In the instant case, the alienation of the joint family property under Ex.P­1 was not with the consent of all the coparceners. It is settled law that where an alienation is not made with the consent of all the coparceners, it is voidable at the instance of the coparceners whose consent has not been obtained (See :  Thimmaiah   and   Ors.   Vs.   Ningamma   and Anr.1 ). Therefore,   the  alienation of the joint family property in favour of the second defendant was voidable at the instance of the plaintiff whose consent had not been obtained as a coparcener before the said alienation. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. In the instant case, it is admitted by the second defendant that the settlement deed dated 22.03.1980 (Ex.P­1) is, in fact, a gift deed which was executed by the first defendant in favour of the second defendant ‘out of love and affection’ and by virtue of which the second defendant was  given   a  portion of the joint family property. It is well­settled that a Hindu father or any other managing member of a HUF has power to make a gift of ancestral property only for a ‘pious purpose’ and what is understood by the term ‘pious purpose’  is a gift for charitable and/or religious purpose. Therefore, a deed of gift in regard to the ancestral property executed ‘out of love and affection’ does not come within the scope of the term ‘pious purpose’.  It is irrelevant if such gift or settlement was made by a donor, i.e. the first defendant, in favour of a donee who was raised by the donor without any relationship, i.e. the second defendant. The gift deed in the instant case is not for any charitable or religious purpose.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. This principle of law has been laid down by this Court in Guramma Bhratar Chanbasappa Deshmukh and Ors.vs. Mallappa Chanbasappa and Anr.2 , wherein it was held as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>“It  may,   therefore, be conceded that the expression “pious purposes” is wide enough, under certain circumstances, to take in charitable purposes though the scope of the latter purposes has nowhere been precisely drawn. But what we are concerned with in this case is the power of a manager to make a gift to an outsider of a joint family property. The scope of the limitations on that power has been  fairly well settled by the decisions  interpreting   the relevant texts of Hindu law. The decisions of Hindu law sanctioned gifts to strangers by a manager of a joint Hindu family of a small extent of property for pious purposes. But no authority went so far, and none has been placed before us, to sustain such a gift to a stranger however much the donor was beholden to him on the ground that it was made out of charity. It must be remembered that the manager has no absolute power of disposal over joint Hindu family property. The Hindu law permits him to do so only within strict limits. We cannot extend the scope of the power on the  basis   of  the wide interpretation give to the words “pious purposes”  in Hindu law in a different  context. In the circumstances, we hold that a gift to a stranger of a joint family property by the manager of the family is void.”</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>15. In Ammathayi @ Perumalakkal and Anr. Vs. Kumaresan @ Balakrishnan and Ors. this Court has reiterated the above position as under:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>“10.  As to the contention that Rangaswami Chettiar was merely carrying his father’s wishes when he made this gift in favour of his wife and that act of his was a matter of pious obligation laid on him  by his father, we  are  of  opinion  that no gift of ancestral immovable property can be made on such a ground. Even the father­in­law, if he had desired to make a gift at the time of the marriage of his daughter­in­law, would not be competent to do so insofar as immovable ancestral property is concerned. No case in support of the proposition that a father­in­law can make a gift of ancestral immovable property in favour of his daughter­in­law at the time of her marriage has been cited. There is in our opinion no authority to support such a proposition in Hindu law. As already observed, a Hindu father or any other managing member has power to make a gift within reasonable  limits   of ancestral immovable property for pious purposes, and we cannot see how a gift by the father­in­law to the daughter­in­law at the time of marriage can by any stretch of reasoning be called a pious purpose, whatever may be the position of a gift by the father or his representation to a daughter at the time of her marriage. One can understand such a gift being made to a daughter when she is leaving the family of her father. As it is the duty of the father or his representative to marry the daughter, such a gift may be and has been held by this Court to be for a pious purpose. But we see no pious purpose for such a gift by a father­in­law in favour of his daughter­in­law at the time of marriage. As a matter of fact the daughter­in­law becomes a member of the family of her father­inlaw after marriage and she would be entitled after marriage in her own   right   to   the   ancestral  immovable property in certain circumstances, and clearly therefore her case stands on a very different footing from the case of a daughter who is being married and to whom a reasonable gift of ancestral immovable property can be made as held by this Court.”</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>16. In view of the above, we are of the view that the settlement deed/gift deed dated 22.03.1980 (Ex.P­1) executed by the first defendant in favour of the second defendant was rightly declared as null and void by the first Appellate Court and the High Court. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>17. Resultantly, the appeal fails and it is accordingly dismissed. There shall be no order as to costs.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '20103c36610b9040ce37d09f1a799046.JPG', '8ea728267b8a5c79942290c04ed24836.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-20', 1, '', '', '2022-04-20 03:31:47', '2022-04-20 04:24:21'),
(1608, 'kBKUJZrwSJkYCf1y3kTIjeL6x', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Domain Name Registrars are intermediaries under the IT Act and cannot offer domain names which infringe existing registered trademarks. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Snapdeal Private Limited Vs Godaddycom LLC and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CS (COMM) 176 of 2021 decided on 18 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice C. Hari Shankar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Defendants 1 to 32 in this plaint are Domain Name Registrars\r\n(“DNRs”, hereinafter), who provide domain names for parties who\r\nmay seek to register their respective websites under such domain\r\nnames. Defendant 33 is the Department of Telecommunications and\r\nDefendant 34 is the National Internet Exchange of India (NIXI).\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The plaint alleges that various third parties, with whom the\r\nplaintiff has no connection or association whatsoever, are registering\r\ndomain names which include the “SNAPDEAL” word/thread. These\r\ndomain names, it is alleged, are infringing in nature, as the plaintiff is\r\nthe registered proprietor of the “SNAPDEAL” trade mark. It is also\r\nalleged that such third parties are, through the websites operating\r\nunder the said domain names, carrying out illegal activities, such as\r\nproviding lucky draws etc. and are also, in certain cases, posing as\r\ncustomer care centres for the plaintiff’s products. All this, it is\r\nsubmitted, is taking place without the plaintiff’s license or\r\nauthorization.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. According to the plaintiff, by offering, for registration, domain\r\nnames which include the thread “SNAPDEAL”, the domain\r\nregistrants are facilitating infringement of the plaintiff’s registered\r\nmark and are also themselves infringers within the meaning of\r\nSections 281\r\nand 292 of the Trade Marks Act, 1999 (“the Trade Marks\r\nAct”).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">9. In Snapdeal Pvt. Ltd. v. Aadi Sins, this Court, vide order dated\r\n1\r\nst November, 2018, injuncted registrants using domain names\r\nincluding the thread “SNAPDEAL” from infringing the registered\r\nSNAPDEAL marks of the plaintiff. The concerned DNRs were also\r\ndirected to suspend such fraudulent domain names and banks were </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">directed to freeze the accounts in which the websites operating under\r\nthe said domain names directed persons to deposit monies. This\r\ninjunction was, vide order dated 8th January, 2019, extended to further\r\ndomain names found to be indulging in similar activities, on an\r\napplication being moved by the plaintiff.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. In Snapdeal Pvt. Ltd. v. Grievance Officer Of Twitter India\r\nTwitter International Company, this Court, vide order dated 27th\r\nNovember, 2019, directed the defendant Twitter to block over 1200\r\nfraudulent URLs/links which infringed the plaintiff’s trade mark. The\r\nsaid litigation is still pending.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. In Snapdeal Pvt. Ltd. v. snapdealluckydraws.org.in, this Court,\r\nvide order dated 20th July, 2020, granted an injunction against 50\r\nrogue websites from carrying out activities under the plaintiff’s\r\nSNAPDEAL trade mark or any trade mark deceptively similar thereto.\r\nThe domain name registrants, including the Defendant 1-\r\nGoDaddy.com was directed to suspend/block the domain names\r\nregistered with them. The Department of Telecommunication (DoT)\r\nwas also directed to issue notifications to Internet Service Providers\r\n(ISPs), directing them to block access to such rogue websites. This\r\norder was, subsequently extended to cover 40 more rogue websites, on\r\nan application being moved by the plaintiff, on 4th August, 2020. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. The basic case that the plaint seeks to make out is that such\r\nrogue websites keep mushrooming, and that it is impracticable for the\r\nplaintiff to approach this Court repeatedly on coming to know of such <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">websites. In each case, it is submitted that, there are hundreds of\r\nwebsites which are found to be registered under domain names that\r\ninfringe the plaintiff’s registered “SNAPDEAL” marks.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. It is submitted that Defendants 1 to 32 have not only registered\r\ninfringing domain names containing the “SNAPDEAL” thread, but are\r\nalso continuing to offer, to persons who log on to their websites,\r\nsimilarly infringing domain names.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>83. In the present case, it is not in dispute that the contesting DNRs\r\nare not merely providing access to a communication system over\r\nwhich information can be shared. They are acting with clear intent to\r\nprofit. They are providing alternative domain names for a price. Not\r\nonly this, they are differentially pricing the alternative domain names,\r\ndepending, obviously, on the “demand” for such alternatives. If, in\r\nproviding such alternatives, therefore, the DNRs infringed registered\r\ntrademarks of third party as such the plaintiff, they cannot seek\r\nimmunity from the consequences of such infringement, by taking\r\nshelter under Section 79(1).\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>84. The provision of “safe harbour” under Section 79 cannot,\r\ntherefore, prima facie, in my view, be available to the DNRs, to the\r\nextent that the alternative domain names provided by them to aspiring\r\nregistrants infringed the registered trademark of the plaintiff.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>85. Issue (vi) effectively stands answered by the admission and\r\nacknowledgment contained in the affidavit of Mr. Carlos A. Becerra.\r\nIn para 5 of the said affidavit, Mr. Becerra has clearly acknowledged\r\nthat Defendant 1 could potentially prevent users from registering\r\ndomain names with the exact letters “SNAPDEAL” or a word or\r\nstring of which “SNAPDEAL” is a part. This is also apparent from\r\nthe fact that Defendant 1 does not provide any alternative domain\r\nname containing the word/string “GoDaddy”, being its own registered\r\ndomain name. The contention that as the process of sourcing the\r\nalternative domain names from the Domain Name Registry is\r\nautomated, the DNRs cannot vouchsafe that the alternative domain\r\nnames that would be thrown up on their websites would not contain\r\nany trademark which is already registered as such “SNAPDEAL”,\r\ncannot, therefore, be accepted.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>86. In this context Ms. Majumder advanced the contention that\r\nthere could be no condonation against infringement. It is no answer,\r\nshe submits, for the DNRs to contend that, as the process of sourcing,\r\nfrom the Domain Name Registry, the alternative domain name, is\r\nautomated, it is not possible for them to ensure that the alternative\r\ndomain names would not be infringing in nature. If it is not possible\r\nfor the DNRs to do so, she submits, the DNRs should stop providing\r\nalternative domain names.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>87. I entirely agree. Infringement of intellectual property rights is\r\nnot condonable in law. A registered trademark cannot be infringed, in\r\nview of the clear proscriptions contained in Sections 28 and 29 of the\r\nTrade Marks Act. There can be no argument against this. It is not\r\nopen to anyone to contend that its activities are so carried out that it\r\ncannot guarantee against infringement. Nor can it lie in the mouth of\r\nanyone that it is practically not possible for it to carry out its activities\r\nin a manner which would not infringe others’ intellectual property\r\nrights. The contention of DNRs that the manner in which alternative\r\ndomain names are provided, on their websites to prospective\r\nregistrants, in the event of the domain names sought by the registrants\r\nbeing not available, is automated and that, therefore, they cannot\r\nensure that such alternative domain names would not be infringing, is\r\nsimply not acceptable. Admittedly, the algorithm, on the basis of\r\nwhich the alternative domain names are made available, is devised by\r\neach individual DNR itself. It is the DNRs’ responsibility to ensure\r\nthat the alternative domain names do not infringe any registered\r\ntrademark. The mere fact that a declaration to the said effect is also\r\nextracted from the prospective registrant is no insurance against the\r\nliability which would fall on the DNR, were it to be providing\r\ninfringing alternative domain names. If the algorithm works in such a\r\nmanner that there is a possibility of infringing alternative domain\r\nnames being made available to an aspiring registrant, the DNR has to\r\ndiscontinue the use of such algorithm. If the consequence is that the\r\nDNR would not be able to provide alternatives, so be it. The law does\r\nnot permit, or condone, its infraction.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>88. There is no substance, therefore, in the contention of learned\r\nCounsel for the DNRs that, as the process by which alternative\r\ndomain names are sourced from the Domain Name Registry is\r\nautomated, they cannot vouchsafe to the alternative domain names not\r\nbeing infringing in nature. If that is the position, the DNRs have to\r\ndiscontinue providing alternative domain names or find some way or\r\nthe other to ensure that infringing domain names are not provided.\r\nThat the website of Defendant 1 does not provide any domain name\r\ncontaining the thread “GoDaddy” indicates that, in fact, this is\r\npossible.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>89. Grant of the prayer sought by the plaintiff would clearly not\r\nrequire any adjudicatory exercise to be undertaken by the DNRs, as\r\nthe plaintiff seeks an omnibus direction, in futuro, to the DNRs, never\r\nto make available to any prospective registrant any domain name\r\ncontaining the “SNAPDEAL” string. If the Court were to grant this\r\nprayer, compliance, therewith, would not require the DNRs to\r\nadjudicate or examine, in respect of any domain name which may be\r\nmade available on their websites to any prospective registrant, as the\r\nCourt, by granting the prayer, would already have adjudicated, in\r\nanticipation, that all such domain names, which contain the\r\n“SNAPDEAL” string, would prima facie infringe the plaintiff’s\r\nregistered “SNAPDEAL” trade mark.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>90. The DNRs’ objection that the plaintiff would not obtain any\r\nsubstantial relief, were its prayer even to be granted, is devoid of\r\nsubstance, as the plaintiff is dominus litis, and it is entirely the\r\nplaintiff’s decision, therefore, as to whom to sue. An infringing\r\ndefendant can hardly seek to contend, as a defence to infringement,\r\nthat there are other infringers whom the plaintiff has not chosen to\r\nsue.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>91. Neither do the DNRs have any right to make available for\r\nregistration, to aspiring registrants, domain names which infringe\r\nexisting registered trademarks, nor does any registrant have a right to\r\nregistration of such an infringing domain name. If the Court were to\r\ngrant the prayer, of the plaintiff, for an anticipatory injunction,\r\nrestraining the DNRs from making available, to any aspiring\r\nregistrant, any domain name containing the ‘SNAPDEAL’\r\nstring/thread, it would be on the premise that any such spring/thread\r\nwould, prima facie, be infringing in nature. That being so, any such\r\ninjunction would not affect, judicially, any right of the DNRs either,\r\nas no DNR can claim, as of right, an entitlement to provide, to\r\naspiring registrants, a domain name which infringes an existing\r\ntrademark, especially for profit.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>93. Having held as above, the plaintiff’s case faces a serious hurdle,\r\nwhen it comes to the reliefs sought in the plaint. The plaint is styled as\r\na quia timet action. “Quia timet”, etymologically, means “since he\r\nfears”.20\r\n P. Ramanatha Aiyar’s Advanced Law Lexicon observes, in\r\nrespect of the expression quia timet, thus: “Before any injury has\r\noccurred; a suit can be filled to restrain an anticipated wrong or tort,\r\nand the Court is satisfied, it may issue a quia timet injunction”. A quia\r\ntimet action is one that seeks, in advance, relief against any\r\nprospective damage. In the case of infringement, a quia timet action\r\ncan seek an interdiction against infringement even before such\r\ninfringement takes place.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>94. That, however, can only be in respect of marks which are\r\nknown to be prospectively infringing. In other words, if a plaintiff is\r\nlegitimately aware of the fact that a defendant is likely to launch an\r\ninfringing product or use an infringing mark then, even before such\r\nproduct is launched or mark is used, the plaintiff can initiate a quia\r\ntimet action to prevent for an injunction against such use, instead of\r\nwaiting for the use to take place and damage to follow.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>95. A quia timet action cannot, however, be predicated on\r\nhypothetical or imaginary infringements. In my considered opinion, it\r\nis not permissible for the Court to hold, in advance, that every\r\nprospective alternative domain name, containing the\r\nword/thread/string “SNAPDEAL” would necessarily be infringing in\r\nnature and, thereby, injunct, in an omnibus and global fashion, DNRs\r\nfrom ever providing any domain name containing “SNAPDEAL”.\r\nThis, in my view, would be completely impermissible. Section 28(1)\r\nof the Trade Marks Act provides the proprietor of a registered trade\r\nmark the right to obtain relief in respect of infringement of the\r\nregistered trade mark. “Infringement of registered trade marks” is, in\r\nturn, defined in Section 29. Infringement, in each sub-section of\r\nSection 29, is envisaged by use of “a mark” which infringes the\r\nregistered trade mark of another, and sets out the various situations in\r\nwhich such infringement could be said to have taken place. The\r\nallegedly infringing mark must, however, be clear and identifiable. If\r\nit is, by combined operation of Section 28(1) and Section 29, the\r\nproprietor of the allegedly infringed registered trade mark would be\r\nentitled to an injunction against the use of the allegedly infringing\r\nmark. The plaintiff has to draw the attention of the Court to the\r\nmarks, of the defendant, which infringe the plaintiff’s registered trade\r\nmark. In the present case, the plaintiff has necessarily to come to the\r\nCourt – as it has been doing in the past – against every domain name\r\nwhich it perceives to be infringing of its registered “SNAPDEAL”\r\nmarks. The Court would then have to examine whether such mark is,\r\nin fact, infringing and, if so, injunct the use of such mark/domain\r\nnames. The cause of action, in any trademark infringement suit, has <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to be with respect to the particular infringing trademark/trademarks.\r\nThe Court cannot pass an order, to operate in futuro, restricting the\r\ndefendants from offering, for registration, any domain name, which\r\nincludes the thread “SNAPDEAL”, as that would be attributing, to the\r\nCourt, a clairvoyance which it does not possess.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>98. In all such cases, however, the DNRs, by the application of the\r\nalgorithm derived by whom the infringing domain names are\r\nbecoming available to prospective registrants, would themselves be\r\n“infringers”, within the meaning of Section 29 of the Trade Marks\r\nAct, and liable in that regard. In order to avoid such liability, in my\r\nopinion, the DNRs would either have to modulate their algorithms in\r\nsuch a way as not to make available, to prospective registrants,\r\npotentially infringing alternatives – as Defendant 1 has apparently\r\ndone in respect of its own domain name – or avoid providing\r\nalternative domain names altogether. A situation in which the\r\nalgorithms of the DNRs make available, to prospective registrants,\r\ninfringing domain names, leaving the proprietors of the infringed <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">trade marks to repeatedly knock at the doors of the Court cannot be\r\nallowed to continue in perpetuo.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>99. For the aforesaid reasons, I regret that I am unable to grant any\r\ninterim injunction as sought in the latter half of prayer (a) in IA\r\n5407/2021, which seeks an injunction against Defendants 1 to 32\r\n“offering any domain names which incorporate the Plaintiff’s\r\nSNAPDEAL trademarks listed in para 10 of the plaint”.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">00. The contention of the DNRs that such a relief cannot be granted\r\nunder Order XXXIX Rules 1 and 2 of the CPC, has, prima facie, to be\r\naccepted.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>101. For the aforesaid reasons, the prayer (a) in IA 5407/2021 of the\r\nplaintiff, to the extent it seeks an injunction against Defendants 1 to 32\r\n“offering any domain names which incorporate the plaintiff’s\r\n“SNAPDEAL” trademarks listed in para 10 of the plaint’, is rejected.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6946d5196d04f4562bb40b3e43025b62.jpeg', '87bc1378ec21bbd3eef1bc687095cd2b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-20', 1, '', '', '2022-04-19 22:29:00', '2022-04-20 09:00:35'),
(1614, 'uIMb2aNJtLCDaWyXEUCdCY7kC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Merely because the employee voluntarily deposited the defrauded amount along with penal interest cannot be a ground to interfere with the order of punishment imposed by the Disciplinary Authority. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Union of India and others Vs M. Duraisamy.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2665 of 2022 decided on 19 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 30.08.2016 passed by the High Court of Judicature at Madras in Writ Petition No. 33303/2013, by which the High Court has dismissed the said writ petition preferred by the appellants herein – Union of India and others and has confirmed the order passed by the Central Administrative Tribunal, Madras Bench (hereinafter referred to as the ‘Tribunal’) in Original Application (OA) No. 357 of 2012 by which the </font></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Tribunal allowed the said OA and modified the punishment from\r\ndismissal/removal from service to compulsory retirement, the Union of\r\nIndia and others have preferred the present appeal.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>3.3. Making the above submissions and relying upon the decisions of\r\nthis Court in the cases of B.C. Chaturvedi v. Union of India, reported in\r\n(1995) 6 SCC 749 (paragraph 19); Chairman & Managing Director,\r\nV.S.P. & Others v. Goparaju Sri Prabhakara Hari Babu, reported in\r\n(2008) 5 SCC 569, as well as the other decisions of this Court in the\r\ncases of Maruti Udyog Ltd. v. Ram Lal, reported in (2005) 2 SCC 638;\r\nState of Bihar v. Amrendra Kumar Mishra, reported in (2006) 12 SCC\r\n561; Regional Manager, SBI v. Mahatma Mishra, reported in (2006) 13 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">SCC 727; State of Karnataka v. Ameerbi, reported in (2007) 11 SCC\r\n681; State of M.P. v. Sanjay Kumar Pathak, reported in (2008) 1 SCC\r\n456; and Uttar Haryana Bijli Vitran Nigam Ltd. v. Surji Devi, reported in\r\n(2008) 2 SCC 310, it is vehemently submitted that as held by this Court\r\nin the aforesaid decisions, the High Court cannot set aside a wellreasoned order passed by the Disciplinary Authority only on sympathy or\r\nsentiments. It is submitted that in the aforesaid decisions, it is observed\r\nand held that once it is found that all the procedural requirements had\r\nbeen complied with, the Courts would not ordinarily interfere with the\r\nquantum of punishment imposed upon a delinquent employee.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>6. Therefore, the short question which is posed for the consideration\r\nof this Court is, whether, in the facts and circumstances of the case, the\r\nTribunal and the High Court were justified in interfering with the\r\npunishment imposed by the Disciplinary Authority and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">modifying/substituting the same from removal to that of compulsory\r\nretirement. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>7. While answering the aforesaid question/issue, the decision of this\r\nCourt in the case of Goparaju Sri Prabhakara Hari Babu (supra), on the\r\njudicial review and the limited jurisdiction of the High Court on the\r\nproportionality of the order of departmental authority is required to be\r\nreferred to.\r\nIn the said decision, after referring to a catena of judgments of this\r\nCourt, it is observed and held by this Court that the jurisdiction of the\r\nHigh Court on the proportionality of the order of departmental authority is\r\nlimited. It is observed that it cannot set aside a well-reasoned order only\r\non grounds of sympathy and sentiments. It is further observed and held\r\nthat once it is found that all the procedural requirements had been\r\ncomplied with, courts would not ordinarily interfere with the quantum of\r\npunishment imposed upon a delinquent employee. It is further observed\r\nthat the superior courts, only in some cases may invoke the doctrine of\r\nproportionality, however if the decision of an employer is found to be\r\nwithin the legal parameters, the doctrine would ordinarily not be invoked\r\nwhen the misconduct stands proved.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>7.1. In the case of B.C. Chaturvedi (supra), the High Court interfered\r\nwith the order of punishment imposed by the Disciplinary Authority and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">substituted the punishment of dismissal from service to one of\r\ncompulsory retirement on the reasoning that the employee had put in 30\r\nyears of service and that he had a brilliant academic record and that he\r\nhad earned promotion after the disciplinary proceedings were initiated.\r\nSetting aside the judgment and order passed by the High Court, this\r\nCourt observed that the reasoning is wholly unsupportable. Such\r\nreasons are not relevant or germane to modify the punishment. What is\r\nrequired to be considered is the gravity of the misconduct. In the said\r\ncase, the employee was found to be in possession of assets\r\ndisproportionate to the known sources of his income. Therefore, this\r\nCourt observed and held that the interference with the imposition of\r\npunishment was wholly unwarranted.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>8. Applying the law laid down by this Court in the aforesaid decisions\r\nto the facts of the case on hand, the order passed by the Tribunal,\r\nconfirmed by the Division Bench of the High Court, substituting the\r\npunishment of removal to that of compulsory retirement is unsustainable.\r\nNeither the Tribunal nor the High Court have found any irregularity in\r\nconducting the departmental enquiry. No procedural lapses have been\r\nfound. In fact, the respondent employee admitted the charge of having\r\ndefrauded Rs.16,59,065/- and on detecting the fraud, he deposited the\r\ndefrauded amount of Rs.16,59,065/- along with penal interest. But for the detection of the fraud, probably, the respondent employee would not\r\nhave deposited the defrauded amount. Once, a conscious decision was\r\ntaken by the Disciplinary Authority to remove an employee on the proved\r\nmisconduct of a very serious nature of defrauding public money, neither\r\nthe Tribunal nor the High Court should have interfered with the order of\r\npunishment imposed by the Disciplinary Authority, which was after\r\nconsidering the gravity and seriousness of the misconduct.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>9. Merely because the respondent-employee had worked for 39\r\nyears and in those years, there was no punishment imposed and/or that\r\nhe voluntarily deposited the defrauded amount along with penal interest\r\nand therefore there was no loss to the Government/Department cannot\r\nbe a ground to interfere with the order of punishment imposed by the\r\nDisciplinary Authority and substitute the same from removal to that of\r\ncompulsory retirement. Neither the Tribunal nor the High Court have, in\r\nfact, considered the nature and gravity of the misconduct committed by\r\nthe delinquent officer. Therefore, both, the Tribunal as well as the High\r\nCourt had exceeded in their jurisdiction in interfering with the quantum of\r\npunishment imposed by the Disciplinary Authority.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>10. None of the grounds/reasoning on which the order of punishment\r\nof removal has been interfered with by the Tribunal and affirmed by the\r\nHigh Court are germane and can be sustained. Once it was found that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the delinquent officer who was serving in the post office had defrauded\r\nto the extent of Rs.16,59,065/- and that too, by way of fraudulent\r\nwithdrawal in as many as 85 RD accounts and by way of non-credit of\r\ndeposits in 71 RD accounts, no sympathy on such an employee was\r\nwarranted. Being a public servant in the post office, the delinquent\r\nofficer was holding the post of trust. Merely because subsequently the\r\nemployee had deposited the defrauded amount and therefore there was\r\nno loss caused to the department cannot be a ground to take a lenient\r\nview and/or to show undue sympathy in favour of such an employee.\r\nWhat about the loss caused to the department by way of goodwill, name\r\nand fame of the department and its reliability amongst the public? By\r\nsuch a misconduct/act on the part of the delinquent officer, the reputation\r\nof the department had been tarnished. Therefore, in the facts and\r\ncircumstances of the case, both, the Tribunal as well as the High Court\r\nhave exceeded in their jurisdiction in interfering with the quantum of\r\npunishment imposed by the Disciplinary Authority and to substitute the\r\nsame to that of compulsory retirement.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11. In view of the above and for the reasons stated above, the\r\nimpugned judgment and order passed by the High Court as well as the\r\norder passed by the Tribunal substituting the order of punishment from removal to that of compulsory retirement cannot be sustained and the\r\nsame deserve to be quashed and set aside.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. Accordingly, the present appeal is allowed. The impugned\r\njudgment and order passed by the High Court dated 30.08.2016 passed\r\nin Writ Petition No. 33303 of 2013 dismissing the same and confirming\r\nthe judgment and order passed by the Tribunal dated 26.03.2013 in O.A.\r\nNo. 357 of 2012 is hereby quashed and set aside. Consequently, order\r\ndated 26.03.2013 passed by the Central Administrative Tribunal, Madras\r\nBench in O.A. No. 357/2012, by which the Tribunal substituted the\r\npunishment of removal to that of compulsory retirement is hereby\r\nquashed and set aside. Consequently, O.A. No. 357/2012, preferred by\r\nthe delinquent officer, stands dismissed and the order passed by the\r\nDisciplinary Authority imposing the punishment of removing the\r\ndelinquent employee from service is hereby restored. However, in the\r\nfacts and circumstances of the case, there shall be no order as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a994c1099afcf139d0dbaaadb0fa202a.jpeg', '073e137e4d412241b3d85f11247c4258.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-22', 1, '', '', '2022-04-20 20:59:05', '2022-04-22 05:59:42');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1615, 'ayAmpYh7bIZ9C8NZUSacY391S', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Procedure. When the issue touches the question of territorial jurisdiction, as far as possible the same shall have to be decided first as preliminary issue. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>V G Jagadishan Vs M/s. Indofos Industries Limited.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2976 of 2022 decided on 19 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Feeling aggrieved and dissatisfied with impugned judgment and order dated 06.07.2015 passed by the High Court of Delhi at New Delhi in Letters Patent Appeal No. 412/2015, by which the High Court has dismissed the said appeal preferred by the appellant herein – workman and it is held that the Labour Court at Delhi would have no jurisdiction to try the case and that the Labour Court at Ghaziabad would have  jurisdiction   to   try   the  complaint/case, the workman has preferred the present appeal.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The question which is posed for the consideration of this Court is, whether, the Labour Court, Delhi would have territorial jurisdiction to decide the case or the Labour Court, Ghaziabad would have territorial jurisdiction to decide the case. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.1 From the findings recorded by the Labour Court, Delhi and the learned Single Judge and the Division Bench of the High Court, it is not much in dispute that the workman was employed as a driver at Ghaziabad office. He was working at the Ghaziabad. His services were retrenched at Ghaziabad. All throughout during the employment, the workman stayed and worked at Ghaziabad. Only after the retrenchment/termination the workman shifted to Delhi from where he served a demand notice at Head Office of the Management situated at  Delhi. Merely because the workman after termination/retrenchment shifted to Delhi and sent a demand notice from Delhi and the Head Office of the Management was at Delhi, it cannot be said that a part cause of action has arisen at Delhi. Considering the facts that the workman was employed at Ghaziabad; was working at Ghaziabad and his services were terminated at Ghaziabad, the facts being undisputed, only the Ghaziabad Court would have territorial jurisdiction to decide the case. As such the issue involved in the present case is no longer res integra in view of the decision of this Court in the case of Eastern Coalfields Ltd. and Ors. Vs. Kalyan Banerjee; (2008) 3 SCC 456. In the case of Eastern Coalfields Ltd. (supra) the workman was employed in Mugma area in the  district of Dhanbad, Jharkhand. His services were terminated at Mugma. However, the workman filed a writ petition before the Calcutta High Court. On a preliminary objection taken the Calcutta High Court held that  since the workman was serving at Mugma area under the General Manager of the area which is the State of Jharkhand, the Calcutta High Court had no jurisdiction. Affirming the aforesaid decision, this Court held that the entire cause of action arose in Mugma area within the State of Jharkhand and only because the head office of the company was situated in the State of West Bengal, the same by itself will not confer any jurisdiction upon the Calcutta High Court particularly when the head office had nothing to do with the order of punishment passed against the workman. In the present case also, the workman was employed at Ghaziabad; he was working at Ghaziabad   and  his services were also terminated at Ghaziabad by the office at Ghaziabad where he was employed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.2 Now, so far as the reliance placed upon the decision of this Court in the case of Singareni Collieries Co. Ltd. (supra) is concerned, apart from the fact that the same is not applicable to the facts of the case on hand, it is required to be noted that the order passed by this Court in the said case was a consent order and the order was passed in exercise of power under Article 142 of the Constitution of India and the question of law was left open. Therefore, no reliance can have been placed on the said decision.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.4 Reliance placed upon the decision of this Court in the case of  Nandram (supra) is also of no assistance to the appellant. Again, on facts, the said  decision is not applicable to the facts of the case on hand. That was also a case where it was found that part cause of action had arisen in both the  places, namely, Pondicherry and Aurangabad. Therefore, it was found on facts that both, the Labour Courts at Pondicherry and Aurangabad had the jurisdiction to deal with the matter and therefore, the Labour Court at Aurangabad was well within its jurisdiction to consider the complaint.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.5 In the case of D.P.  Maheshwari (supra) is pressed into service by learned Senior Advocate appearing on behalf of the appellant in support of the submission that the Labour Court ought not to have given the decision only on preliminary issue and ought to have disposed of all the issues, whether preliminary or otherwise at the same time. On facts the said decision is not applicable to the facts of the case on hand. In the aforesaid decision no absolute proposition of law was laid down by this Court that even the issue touching the jurisdiction of the court cannot be decided by the court as a preliminary issue and the court has to dispose of all the issues, whether preliminary or otherwise, at the same time. When the issue touches the question of territorial jurisdiction, as far as possible the same shall have to be decided first as preliminary issue. Therefore, in the present case, the Labour Court did not commit any error in deciding the issue with respect to the territorial jurisdiction as a preliminary issue in the first instance. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. In view of the above and for the reasons stated above, the present Appeal fails and the same deserves to be dismissed and   is   accordingly dismissed. In the facts and circumstances of the case, there shall be no order as to costs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '87cd7353ed5ff4eb28304d736d7216c8.jpeg', 'ab1f5c7d8a2298d7f89b82d9064b2b3c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-22', 1, '', '', '2022-04-20 21:33:13', '2022-04-22 10:00:36'),
(1616, 'UWlsgMYy9ZdFWNcR4WJkKhzMW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Liquidation under IB Code. Provident fund, gratuity fund and pension fund shall be kept out of the liquidation process to be paid to workmen and the liquidator cannot claim such funds. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sunil Kumar Jain and others Vs Sundaresh Bhatt and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5910 of 2019 decided on 19 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice Aniruddha Bose.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. That the Corporate Debtor was a private sector Ship Building Yard\r\nwith its manufacturing activities at Dahej Yard and Surat Yard in Gujarat\r\nand having its corporate office at Mumbai. That prior to the initiation of\r\nCIRP, the Corporate Debtor had 562 workmen and 93 employees at\r\nDahej; 291 workmen and 99 employees at Surat and 101 employees at\r\nits Mumbai Head Office. The appellants herein are the 272 employees\r\nand workmen employed at Mumbai Head Office and Dahej Yard of the\r\nCorporate Debtor. None of the 201 employees and workmen at Surat\r\nYard are the appellants herein. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. We have heard the learned counsel for the respective parties at\r\nlength.\r\nThe issue before this Court is with respect to wages/salaries of the\r\nworkmen/employees during the CIRP period and the amount due and\r\npayable to the respective workmen/employees towards Pension Fund,\r\nGratuity Fund and Provident Fund.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8.2.2. Section 530 of 1956 Act provided the waterfall mechanism as\r\nper which priority is to be given to different kinds of debts. Subsequently,\r\nthe Companies Bill, 2009 and 2011 were introduced wherein\r\nwages/salaries payable to workmen for a period of 2 years were\r\nprotected in case of winding up of the Company. Thereafter, under the\r\nCompanies Act, 2013 (hereinafter referred to as “2013 Act”), Section 326\r\nand Section 327 i.e. “Overriding Preferential Payment” and “Preferential\r\nPayments” were introduced wherein a proviso to Section 326 of the 2013\r\nAct was inserted. Initially the insolvency process in case of winding up of\r\ninsolvent companies were provided under Section 325 of 2013 Act.\r\nHowever, Section 325 of the 2013 Act was omitted w.e.f. 15.11.2016 on\r\nthe coming into force the IB Code. On enactment of the IB Code, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">winding up proceedings in case of insolvency are to be governed by the\r\nprovisions of the IB Code and the provisions of the IB code only shall be\r\napplicable to deal with the winding up proceedings as the IB Code is a\r\ncomplete Code in itself. That thereafter, an amendment w.e.f.\r\n15.11.2016 has been brought in under Section 327 (7) of 2013 Act\r\nwherein it has been clarified that the provisions of Section 326 and\r\nSection 327 of the 2013 Act will not be applicable in the event of\r\nliquidation under the IB Code.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8.2.4. Under the IB Code, the workmen dues have been duly\r\nprotected and the provident fund, gratuity and pension fund have been\r\nexcluded from the liquidation estate assets (Section 36(4) of the IB <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Code). Furthermore, as per Section 53 of the IB Code, the workmen\r\ndues are given the top priority in the waterfall mechanism. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. It cannot be disputed that as per Section 5(13) of the IB Code,\r\n“insolvency resolution process costs” shall include any costs incurred by\r\nthe resolution professional in running the business of the corporate\r\ndebtor as a going concern. It is also true that Section 20 of the IB Code\r\nmandates that the interim resolution professional/resolution professional\r\nis to manage the operations of the corporate debtor as a going concern\r\nand in case during the CIRP the corporate debtor was a going concern,\r\nthe wages/salaries of such workmen/employees who actually worked,\r\nshall be included in the CIRP costs and in case of liquidation of the\r\ncorporate debtor, dues towards the wages and salaries of such\r\nworkmen/employees who actually worked when the corporate debtor\r\nwas a going concern during the CIRP, being a part of the CIRP costs\r\nare entitled to have the first priority and they have to be paid in full first\r\nas per Section 53(1)(a) of the IB Code. Therefore, while considering the\r\nclaims of the concerned workmen/employees towards the\r\nwages/salaries payable during CIRP, first of all it has to be established\r\nand proved that during CIRP, the corporate debtor was a going concern <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and that the concerned workmen/employees actually worked while the\r\ncorporate debtor was a going concern during the CIRP. The wages and\r\nsalaries of all other workmen/employees of the Corporate Debtor during\r\nthe CIRP who actually have not worked and/or performed their duties\r\nwhen the Corporate Debtor was a going concern, shall not be included\r\nautomatically in the CIRP costs. Only with respect to those\r\nworkmen/employees who actually worked during CIRP when the\r\nCorporate Debtor was a going concern, their wages/salaries are to be\r\nincluded in the CIRP costs and they shall have the first priority over all\r\nother dues as per Section 53(1)(a) of the IB Code. Any other dues\r\ntowards wages and salaries of the employees/workmen of the corporate\r\ndebtor shall have to be governed by Section 53(1)(b) and Section 53(1)\r\n(c) of the IB Code. Any other interpretation would lead to absurd\r\nconsequences and violate the scheme of Section 53 r/w Section 5(13) of\r\nthe IB Code. If any other interpretation, more particularly, the\r\ninterpretation canvassed on behalf of the appellants is accepted, in that\r\ncase, the wages/salaries of those workmen/employees who had not\r\nworked at all during CIRP shall have to be treated and/or included in the\r\nCIRP costs, which cannot be the intention of the legislature.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. On a fair reading of Section 5(13) of the IB code which defines\r\n“insolvency resolution process costs”, it is observed and held that the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dues towards the wages/salaries of only those workmen/employees who\r\nactually worked during the CIRP are to be included in the CIRP costs.\r\nThe rests of the claims towards the wages/salaries of the\r\nworkmen/employees, as observed hereinabove, shall be governed by\r\nSections 53(1)(b) & (c) of the IB Code.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. In view of the above and for the reasons stated above, it is held as\r\nunder:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\ni) that the wages/salaries of the workmen/employees of the\r\nCorporate Debtor for the period during CIRP can be included in the\r\nCIRP costs provided it is established and proved that the Interim\r\nResolution Professional/Resolution Professional managed the\r\noperations of the corporate debtor as a going concern during the CIRP\r\nand that the concerned workmen/employees of the corporate debtor\r\nactually worked during the CIRP and in such an eventuality, the\r\nwages/salaries of those workmen/employees who actually worked during\r\nthe CIRP period when the resolution professional managed the\r\noperations of the corporate debtor as a going concern, shall be paid treating it and/or considering it as part of CIRP costs and the same shall\r\nbe payable in full first as per Section 53(1)(a) of the IB Code;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ii) considering Section 36(4) of the IB code and when the provident\r\nfund, gratuity fund and pension fund are kept out of the liquidation estate\r\nassets, the share of the workmen dues shall be kept outside the\r\nliquidation process and the concerned workmen/employees shall have to\r\nbe paid the same out of such provident fund, gratuity fund and pension\r\nfund, if any, available and the Liquidator shall not have any claim over\r\nsuch funds.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. As observed hereinabove, there are disputed questions, whether\r\nin fact the IRP/RP managed the operations of the corporate debtor as a\r\ngoing concern during the CIRP and there is a serious dispute whether\r\nDahej Yard was operational during the CIRP or not and there is a serious\r\ndispute that the concerned workmen/employees of the Dahej Yard and\r\nthe concerned employees of the Mumbai Head Office actually worked\r\nduring the CIRP or not and therefore it is directed that let the appellants\r\nsubmit their claims before the Liquidator and establish and prove that\r\nduring CIRP, IRP/RP managed the operations of the corporate debtor as\r\na going concern and that they actually worked during the CIRP and the\r\nLiquidator is directed to adjudicate such claims in accordance with law\r\nand on its own merits and on the basis of the evidence which may be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">laid/produced, irrespective of the fact whether the RP who himself is now\r\nthe Liquidator included the claims of the appellants being wages/salaries\r\nduring CIRP as CIRP costs or not. The Liquidator is directed to\r\nadjudicate such claims independently. If it is found that in fact the\r\nIRP/RP managed the operations of the corporate debtor as a going\r\nconcern during the CIRP and the concerned workmen/employees\r\nactually worked during CIRP, their wages and salaries be considered\r\nand included in CIRP costs and they will have to be paid as per Section\r\n53(1)(a) of the IB Code in full before distributing the amount in the\r\npriorities as mentioned in Section 53 of the IB Code. The aforesaid\r\nexercise shall be completed within a period of twelve weeks from today\r\nand such amount shall be paid out of the amount which is directed to be\r\nkept aside earlier by the Adjudicating Authority/Appellate Tribunal and\r\nthereafter by this Court. Till such claims are adjudicated upon, the\r\nLiquidator is directed to keep aside the said amount exclusively to be\r\nused for the workmen/employee’s dues which is to be paid on\r\nadjudication as above</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '48201034cc5270b9e9a0d0e3a7cdb84a.jpeg', '89c81207561c454b0e59385fb32d7999.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-22', 1, '', '', '2022-04-20 21:50:40', '2022-04-22 07:54:03'),
(1623, 'cbGhpfs4iDVNoya2E9EDgbm6r', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'An ad hoc employee cannot be replaced by another ad hoc employee and he can be replaced only by another candidate who is regularly appointed by following a regular procedure prescribed. Supreme Court reiterates.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Manish Gupta and Another Vs President, Jain Bhagidari Samiti and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3084-3088 of 2022 decided on 21 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice L. Nageswara Rao and Justice B.R. Gavai.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The present appeals challenge the common judgment and order dated 8th February, 2017, passed by the Division Bench of the High Court of Madhya Pradesh, Gwalior Bench, in Writ Appeal No. 386 of 2016 along with companion matters, thereby allowing the appeals filed by the State of Madhya Pradesh as well as the Jan Bhagidari Samiti and setting aside the common judgment and order dated 29th September, 2016 passed by the learned single judge of the High Court of Madhya Pradesh, Gwalior Bench in Writ Petition (Civil) Nos. 4716 of 2016, 5326 of 2016 and 5145 of 2016.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. A perusal of the advertisement dated 24th June, 2016 issued by the  Principal, Government Kamla Raja Girls Post Graduate Autonomous College, Gwalior, which is at Annexure P­2 of the Appeal Paper Book and the advertisement dated 2nd July, 2016 issued by the Principal, SMS Government Model Science College, Gwalior, M.P., which is at Annexure P­3 of the Appeal Paper Book, would show that the appointments were to be made after the candidates had gone through due selection procedure.  Though Shri Nataraj, learned ASG has strenuously urged that the appointments of the appellants were as guest lecturers and not as ad hoc employees, from the nature of the advertisements, it could clearly be seen that the appellants were appointed on ad hoc basis. It is a settled principle of law that an ad hoc employee cannot be replaced by another ad hoc employee and he can be replaced only by another candidate who is regularly appointed by following a regular procedure prescribed. Reliance in this respect can be placed on the judgment of this Court in the case of Rattan Lal and others vs. State of Haryana and others and on the order of this Court in the case of Hargurpratap Singh vs. State of Punjab and others.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9a559bd68026aa909dcc4a4d5106d5a4.jpeg', '55d97a88753068817e178a51262a5439.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-22', 1, '', '', '2022-04-22 16:43:45', '2022-04-24 07:06:00'),
(1619, 'M6zMpQGUhsFdRmPNZvY6rINWV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Post operative medical negligence.  Medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chanda Rani Akhouri and others Vs M.A. Methusethupathi and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6507 of 2009 decided on 20 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ajay Rastogi and Justice Abhay S. Oka.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The National Consumer Disputes Redressal Commission\r\n(hereinafter “the Commission”), after appreciating the material on\r\nrecord, including the evidence led by the parties, arrived to a\r\nconclusion that it was not a case of post operative medical negligence\r\nas being alleged by the appellants and dismissed the complaint by\r\nthe judgment impugned dated 21st July, 2009 which is the subject\r\nmatter of appeal filed at the instance of the appellants under Section\r\n23 of the Consumer Protection Act, 1986.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. The doctors can provide their best medical assistance available\r\nat their command but merely because they could not save the\r\npatient, that could not be considered to be a case of post operative\r\nmedical negligence despite the fact that medical protocol\r\nadministered by them was duly supported by the two medical experts\r\nof the field who appeared on behalf of the respondents, Dr. S. Sundar\r\nand Dr. Arun Kumar, and nothing elicits from the cross-examination\r\nmade by the appellants. In the given circumstances, the findings\r\nwhich has been returned by the Commission needs no further\r\ninterference by this Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">23. In the case of medical negligence, this Court in Jacob Mathew\r\nv. State of Punjab and Another1 dealt with the law of medical\r\nnegligence in respect of professionals professing some special skills.\r\nThus, any individual approaching such a skilled person would have\r\na reasonable expectation under the duty of care and caution but\r\nthere could be no assurance of the result. No doctor would assure\r\na full recovery in every case. At the relevant time, only assurance\r\ngiven by implication is that he possessed the requisite skills in the\r\nbranch of the profession and while undertaking the performance of\r\nhis task, he would exercise his skills to the best of his ability and\r\nwith reasonable competence. Thus, the liability would only come if\r\n(a) either a person (doctor) did not possess the requisite skills which\r\nhe professed to have possessed; or (b) he did not exercise with\r\nreasonable competence in given case the skill which he did possess.\r\nIt was held to be necessary for every professional to possess the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">highest level of expertise in that branch in which he practices. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. The term “negligence” has been defined in Halsbury Laws of\r\nEngland (Fourth Edition) para 34 and as settled in Kusum Sharma\r\nand Others v. Batra Hospital and Medical Research Centre and\r\nOthers as under: </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“45. According to Halsbury\'s Laws of England, 4th Edn., Vol. 26 pp.\r\n17-18, the definition of negligence is as under:\r\n“22. Negligence.—Duties owed to patient. A person who holds\r\nhimself out as ready to give medical advice or treatment\r\nimpliedly undertakes that he is possessed of skill and\r\nknowledge for the purpose. Such a person, whether he is a\r\nregistered medical practitioner or not, who is consulted by a\r\npatient, owes him certain duties, namely, a duty of care in\r\ndeciding whether to undertake the case; a duty of care in\r\ndeciding what treatment to give; and a duty of care in his\r\nadministration of that treatment. A breach of any of these\r\nduties will support an action for negligence by the patient.”</i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. In para 89 of the judgment in Kusum Sharma (supra), the tests\r\nof medical negligence while deciding whether the medical\r\nprofessional is guilty of medical negligence, varied tested principles\r\nhave to be kept in view, this Court held as under:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>“<i>89. On scrutiny of the leading cases of medical negligence both in\r\nour country and other countries specially the United Kingdom, some\r\nbasic principles emerge in dealing with the cases of medical\r\nnegligence. While deciding whether the medical professional is guilty\r\nof medical negligence following well-known principles must be kept\r\nin view:</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>I. Negligence is the breach of a duty exercised by omission to do\r\nsomething which a reasonable man, guided by those considerations\r\nwhich ordinarily regulate the conduct of human affairs, would do, or\r\ndoing something which a prudent and reasonable man would not do.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>II. Negligence is an essential ingredient of the offence. The\r\nnegligence to be established by the prosecution must be culpable or\r\ngross and not the negligence merely based upon an error of\r\njudgment.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>III. The medical professional is expected to bring a reasonable\r\ndegree of skill and knowledge and must exercise a reasonable degree\r\nof care. Neither the very highest nor a very low degree of care and\r\ncompetence judged in the light of the particular circumstances of\r\neach case is what the law requires.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>IV. A medical practitioner would be liable only where his conduct\r\nfell below that of the standards of a reasonably competent\r\npractitioner in his field.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>V. In the realm of diagnosis and treatment there is scope for\r\ngenuine difference of opinion and one professional doctor is clearly\r\nnot negligent merely because his conclusion differs from that of other\r\nprofessional doctor.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>VI. The medical professional is often called upon to adopt a\r\nprocedure which involves higher element of risk, but which he\r\nhonestly believes as providing greater chances of success for the\r\npatient rather than a procedure involving lesser risk but higher\r\nchances of failure. Just because a professional looking to the gravity\r\nof illness has taken higher element of risk to redeem the patient out\r\nof his/her suffering which did not yield the desired result may not\r\namount to negligence.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b> VII. Negligence cannot be attributed to a doctor so long as he\r\nperforms his duties with reasonable skill and competence. Merely\r\nbecause the doctor chooses one course of action in preference to the\r\nother one available, he would not be liable if the course of action\r\nchosen by him was acceptable to the medical profession.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>VIII. It would not be conducive to the efficiency of the medical\r\nprofession if no doctor could administer medicine without a halter\r\nround his neck.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>IX. It is our bounden duty and obligation of the civil society to\r\nensure that the medical professionals are not unnecessarily harassed\r\nor humiliated so that they can perform their professional duties\r\nwithout fear and apprehension.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>X. The medical practitioners at times also have to be saved from\r\nsuch a class of complainants who use criminal process as a tool for\r\npressurising the medical professionals/hospitals, particularly\r\nprivate hospitals or clinics for extracting uncalled for compensation.\r\nSuch malicious proceedings deserve to be discarded against the\r\nmedical practitioners.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>XI. The medical professionals are entitled to get protection so long\r\nas they perform their duties with reasonable skill and competence\r\nand in the interest of the patients. The interest and welfare of the\r\npatients have to be paramount for the medical professionals.”<br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. In a recent judgment in Dr. Harish Kumar Khurana v.\r\nJoginder Singh and Others , this Court held that the hospital and\r\ndoctors are required to exercise sufficient care in treating the\r\npatients in all circumstances. However, in an unfortunate case\r\ndeath may occur. It will be necessary that sufficient material on\r\nmedical evidence should be available before the adjudicating\r\nauthority to arrive at a conclusion that the death is due to medical <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">negligence. Even death of a patient cannot, on the face of it, be\r\nconsidered to be medical negligence.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>27. It clearly emerges from the exposition of law that a medical\r\npractitioner is not to be held liable simply because things went\r\nwrong from mischance or misadventure or through an error of\r\njudgment in choosing one reasonable course of treatment in\r\npreference to another. In the practice of medicine, there could be\r\nvarying approaches of treatment. There could be a genuine\r\ndifference of opinion. However, while adopting a course of treatment,\r\nthe duty cast upon the medical practitioner is that he must ensure\r\nthat the medical protocol being followed by him is to the best of his\r\nskill and with competence at his command. At the given time,\r\nmedical practitioner would be liable only where his conduct fell\r\nbelow that of the standards of a reasonably competent practitioner\r\nin his field.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">28. The term “negligence” has no defined boundaries and if any\r\nmedical negligence is there, whether it is pre or post-operative\r\nmedical care or in the follow-up care, at any point of time by the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">treating doctors or anyone else, it is always open to be considered by\r\nthe Courts/Commission taking note of the exposition of law laid\r\ndown by this Court of which a detailed reference has been made and\r\neach case has to be examined on its own merits in accordance with\r\nlaw.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30. Complaints have been made with regard to the post-operative\r\nassistance / follow up care, but from the deposition of two witnesses\r\nwhich has come on record, there was a complaint made by the patient of pain in his left forearm while he was being discharged on 24th\r\nNovember, 1995 after remaining in ICU for 12 days, but he was called\r\nupon to continue as outdoor patient and on all the later occasions,\r\neven as per the case sheet of the patient, doctors have treated the\r\npatient to the best of their medical knowledge and administered the\r\nbest medical care which was possible. Although the complaint of the\r\npatient which remained persistent could not be ruled out despite\r\nmedically approved drugs being administered to him and if the\r\npatient could not be finally saved, that in itself could not be\r\nconsidered to be a case of post operative medical negligence, as is\r\nbeing tried to be projected by the appellants on the basis of the\r\nmaterial placed on record.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. The doctors are expected to take reasonable care, but no\r\nprofessional can assure that the patient will come back home after\r\novercoming the crisis. At the same time, no evidence has come on\r\nrecord at the behest of the appellants which, in any manner, could\r\ndemonstrate that it was a case of post-operative medical negligence\r\nor follow up care on the part of treating doctors and both the doctors\r\nwho have recorded their statements on behalf of the appellants, Dr. Ashok Chopra and Dr. Sophia Ahmed, are not expert doctors in the\r\nfield of kidney transplantation. Merely because they are doctors by\r\nprofession, what is being expressed by both of them in the affidavits\r\nfiled before the Commission would not be considered to be an opinion\r\nof experts.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>38. The appeal is accordingly dismissed. No costs.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4780c5295f445e755ed184a120fb02c4.jpeg', '6d77f9d9a66a60d7f913fd41fd1ec782.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-23', 1, '', '', '2022-04-21 19:03:06', '2022-04-23 05:46:38');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1620, 'C9yEPqAhpfGbSPmB7Hb4nfC11', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Merely because co-delinquent is inflicted with lesser punishment cannot be a ground to hold punishment imposed on the delinquent employee as disproportionate. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Anil Kumar Upadhyay Vs The Director General, SSB and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2707 of 2022 decided on 20 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order dated 11.04.2018 passed by the Division Bench of the\r\nGauhati High Court in Writ Appeal No. 346/2017, by which the Division\r\nBench of the High Court has allowed the said appeal preferred by the\r\nrespondents herein – Disciplinary Authority and has quashed and set\r\naside the judgment and order 02.05.2017 passed by the learned Single\r\nJudge of the High Court in Writ Petition No. 3576 of 2014, by which the\r\nlearned Single Judge allowed the said writ petition and interfered with <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the order of punishment of ‘removal from service’ inflicted upon the\r\noriginal writ petitioner and remitted the matter to the Disciplinary\r\nAuthority, the original writ petitioner – delinquent has preferred the\r\npresent appeal.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Therefore, the short question which is posed for the consideration\r\nof this Court is, “whether the learned Single Judge was justified in\r\ninterfering with the order of punishment imposed by the disciplinary\r\nauthority on the ground that the same was disproportionate as the\r\nfemale constable against whom also the disciplinary proceedings were\r\ninitiated and the two charges were held to be proved against her, was\r\ninflicted with the lesser punishment?”</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. On the judicial review and interference of the courts in the matter\r\nof disciplinary proceedings and on the test of proportionality, few\r\ndecisions of this Court are required to be referred to:\r\ni) In the case of Om Kumar (supra), this Court, after considering the\r\nWednesbury principles and the doctrine of proportionality, has\r\nobserved and held that the question of quantum of punishment in\r\ndisciplinary matters is primarily for the disciplinary authority and the\r\njurisdiction of the High Courts under Article 226 of the Constitution or\r\nof the Administrative Tribunals is limited and is confined to the\r\napplicability of one or other of the well-known principles known as\r\n‘Wednesbury principles’.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In the Wednesbury case, (1948) 1 KB 223, it was observed that\r\nwhen a statute gave discretion to an administrator to take a decision,\r\nthe scope of judicial review would remain limited. Lord Greene further <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">said that interference was not permissible unless one or the other of\r\nthe following conditions was satisfied, namely, the order was contrary\r\nto law, or relevant factors were not considered, or irrelevant factors\r\nwere considered, or the decision was one which no reasonable person\r\ncould have taken.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>ii) In the case of B.C. Chaturvedi (supra), in paragraph 18, this Court\r\nobserved and held as under:</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“18. A review of the above legal position would establish that the\r\ndisciplinary authority, and on appeal the appellate authority, being factfinding authorities have exclusive power to consider the evidence with a\r\nview to maintain discipline. They are invested with the discretion to impose\r\nappropriate punishment keeping in view the magnitude or gravity of the\r\nmisconduct. The High Court/Tribunal, while exercising the power of judicial\r\nreview, cannot normally substitute its own conclusion on penalty and\r\nimpose some other penalty. If the punishment imposed by the disciplinary\r\nauthority or the appellate authority shocks the conscience of the High\r\nCourt/Tribunal, it would appropriately mould the relief, either directing the\r\ndisciplinary/appellate authority to reconsider the penalty imposed, or to\r\nshorten the litigation, it may itself, in exceptional and rare cases, impose\r\nappropriate punishment with cogent reasons in support thereof.”<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>iii) In the case of Lucknow Kshetriya Gramin Bank (supra), in\r\nparagraph 19, it is observed and held as under:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>“19. The principles discussed above can be summed up and summarised\r\nas follows:</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>19.1. When charge(s) of misconduct is proved in an enquiry the quantum\r\nof punishment to be imposed in a particular case is essentially the\r\ndomain of the departmental authorities.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>19.2. The courts cannot assume the function of disciplinary/departmental\r\nauthorities and to decide the quantum of punishment and nature of\r\npenalty to be awarded, as this function is exclusively within the\r\njurisdiction of the competent authority.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>19.3. Limited judicial review is available to interfere with the punishment\r\nimposed by the disciplinary authority, only in cases where such penalty is\r\nfound to be shocking to the conscience of the court.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>19.4. Even in such a case when the punishment is set aside as\r\nshockingly disproportionate to the nature of charges framed against the\r\ndelinquent employee, the appropriate course of action is to remit the\r\nmatter back to the disciplinary authority or the appellate authority with\r\ndirection to pass appropriate order of penalty. The court by itself cannot\r\nmandate as to what should be the penalty in such a case.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>1<span style=\"font-size: 12pt;\">9.5. The only exception to the principle stated in para 19.4 above, would\r\nbe in those cases where the co-delinquent is awarded lesser punishment\r\nby the disciplinary authority even when the charges of misconduct were\r\nidentical or the co-delinquent was foisted with more serious charges. This\r\nwould be on the doctrine of equality when it is found that the employee\r\nconcerned and the co-delinquent are equally placed. However, there has\r\nto be a complete parity between the two, not only in respect of nature of\r\ncharge but subsequent conduct as well after the service of charge-sheet\r\nin the two cases. If the co-delinquent accepts the charges, indicating\r\nremorse with unqualified apology, lesser punishment to him would be\r\njustifiable.”</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><span style=\"font-size: 12pt;\"><b><br></b></span></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. In the present case, the appellant was imposed the penalty of\r\n‘removal from service’ after the charges levelled against him stood\r\nproved by the disciplinary authority in an enquiry held against him after\r\nfollowing the procedure prescribed under the SSB Rules. The nature of\r\nallegations against the appellant are grave in nature. He entered the\r\nMahila Barrack in the midnight at around 00:15 hours, may be to meet\r\nhis alleged friend Rupasi Barman, but such an indisciplined conduct\r\nleading to compromising the security of the occupants of the Mahila\r\nBarrack cannot be tolerated. As a member of the disciplined force –\r\nSSB, he was expected to follow the rules. He was apprehended inside\r\nthe Mahila Barrack by six female constables. As observed by this Court\r\nin the case of Diler Singh (supra), a member of the disciplined force is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">expected to follow the rules, have control over his mind and passion,\r\nguard his instincts and feelings and not allow his feelings to fly in a fancy.\r\nThe nature of misconduct which has been committed by the appellant\r\nstands proved and is unpardonable. Therefore, when the disciplinary\r\nauthority considered it appropriate to punish him with the penalty of\r\n‘removal from service’, which is confirmed by the appellate authority,\r\nthereafter it was not open for the learned Single Judge to interfere with\r\nthe order of punishment imposed by the disciplinary authority.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Even otherwise, merely because one of the employees was\r\ninflicted with a lesser punishment cannot be a ground to hold the\r\npunishment imposed on another employee as disproportionate, if in case\r\nof another employee higher punishment is warranted and inflicted by the\r\ndisciplinary authority after due application of mind. There cannot be any\r\nnegative discrimination. The punishment/penalty to be imposed on a\r\nparticular employee depends upon various factors, like the position of the\r\nemployee in the department, role attributed to him and the nature of\r\nallegations against him. Therefore, the Division Bench of the High Court\r\nis absolutely justified in interfering with the judgment and order passed\r\nby the learned Single Judge, interfering with the order of punishment\r\nimposed by the disciplinary authority removing the appellant from\r\nservice. If the conduct on the part of the appellant entering the Mahila\r\nBarrack of the Battalion in the midnight is approved, in that case, it would\r\nlead to compromising the security of the occupants of the Mahila\r\nBarrack. Therefore, the disciplinary authority was absolutely justified in\r\nimposing the punishment/penalty of ‘removal from service’ by modifying\r\nthe earlier punishment of dismissal. The same cannot be said to be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">disproportionate at all to the misconduct held to be proved against the\r\nappellant – delinquent.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. In view of the above and for the reasons stated above, the present\r\nappeal fails and the same deserves to be dismissed and is accordingly\r\ndismissed. However, in the facts and circumstances of the case, there\r\nshall be no order as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a71e229e56ff51ce067f995241a431bb.jpeg', 'c6c09618aacc0afb9d2d4dd47650d5a5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-25', 1, '', '', '2022-04-21 19:10:47', '2022-04-25 17:29:05'),
(1621, '0DyVtFy1G2zAA7o3ahXQzJMUt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sale of mortgaged property under SARFAESI Act. When title of property is under cloud which was not disclosed by bank, auction purchaser can withdraw his bid and seek refund of advance amount. Bank can not forfeit the advance amount. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Balaji Babu Vs State Bank of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 46450 of 2014 decided on 20 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P. Krishna Bhat.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. It is the case of the petitioner that one Sri.Jignesh N. Patel was the owner of immovable property bearing No.9/1, Old No.5, Khatha No.30/A of Nayandahalli, Mysore Road, Bengaluru. He obtained loan from respondent No.1-State Bank of Mysore (which has now been merged with State Bank of India) for his business purposes and by way of security he created mortgage on the aforementioned property at Nayandahalli, Mysore Road, Bengaluru. The loan having remained outstanding, respondent No.1 initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘SARFAESI Act’) and took over possession of the mortgaged property. The property was brought to sale for the recovery of outstanding loan and respondent No.1 issued a newspaper publication dated 15.10.2010 (as per Annexure- A). The petitioner having noticed the same, deposited the EMD of Rs.5,63,500/- in terms of Annexure-A and submitted his sealed tender. Same was accepted as per the communication of respondent No.1 dated 15.11.2010 for a sum of Rs.56,40,000/-. Accordingly, petitioner was directed to deposit 25% of the amount on the same date, which was inclusive of EMD amount already deposited by him. Thus, in all petitioner deposited a sum of Rs.24,10,000/- before respondent No.1.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Further as per the communication of respondent No.1 dated 15.11.2010 (Annexure-B) petitioner was required to deposit the balance amount of Rs.42,30,000/- by 30.11.2010. When he made enquiries in the Office of jurisdictional Sub-Registrar, he came to know that borrower had even before the sale notification dated 15.10.2010 alienated the property concerned in favour of his wife Smt.Naina J. Patel by executing a registered gift deed. Therefore, petitioner made a representation to respondent No.1 to get the gift deed executed by the borrower Sri.Jignesh N. Patel in favour of his wife annulled so as to avoid any dispute regarding the title of property which was going to be transferred to the petitioner as a successful bidder in the sale held by respondent No.1. However, respondent No.1 refused to do so and insisted on the petitioner to make full payment and subsequently forfeited the amount of Rs.24,10,000/- deposited by the petitioner. Aggrieved by the same petitioner has filed this writ petition seeking reliefs as aforesaid.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. Perusal of writ petition and statement of objections filed shows that one Jignesh Patel had borrowed loan from respondent No.1 and as security for the said loan he had created mortgage in respect of the property bearing No.9/1, Old No.5, Khatha No.30/A, 7th KM, Nayanadahalli, Mysore Road, Bengaluru-94. There is no dispute about the fact that loans borrowed by the said Sri.Jignesh N. Patel remained  outstanding. Respondent No.1 initiated proceedings under SARFAESI Act and took over possession of the property. Subsequently, respondent No.1 issued sale notice in New Indian Express dated 15.10.2010 (Annexure- A). In the said sale notification, the property was shown as belonging to Sri.Jignesh Patel – Proprietor of M/s. Bangalore Timbers. There is absolutely no other particulars given in the said sale notification that anybody other than Jignesh Patel had interest over the said property.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. Rule 8 of the Security Interest (Enforcement) Rules, 2002 (hereinafter referred to as “Enforcement Rules 2002” for short) provides for the manner of holding sale of immovable secured assets. Relevant provisions thereunder are sub-rule (6) and sub-rule (7) of Rule 8 of Enforcement Rules, 2002</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. A perusal of above Rules make it clear that the notice of sale shall contain the description of immovable property to be sold including the details of encumbrances known to the secured creditor. It is idle to contend that requirement of furnishing details of encumbrances known to the secured creditor applies only to website publication of sale and not to newspaper publication like under Annexure- A. The precise grievance of the petitioner is that respondent No.1 was clearly aware of the borrower Sri.Jignesh Patel having already alienated the property mortgaged by him in favour of Smt. Naina J Patel by a gift deed in the year 2002. In the writ petition, petitioner has clearly asserted that Smt.Naina J Patel had filed W.P.No.122/2008 and respondent No.1 herein was a party to the same and respondent No.1 was aware of the said registered gift deed in the year 2008 itself. Said assertion made by the petitioner about the knowledge of respondent No.1 that subject property of sale was already transferred by a gift deed to Smt.Naina J Patel has not been denied in the statement of objections filed by respondent No.1</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. The fact that said assertion is false is evident from the fact that respondent No.1 has not produced any material to substantiate the same. Besides, respondent No.1 has not stated as to when necessary facts were brought to the notice of the petitioner. This clearly shows that on account of Smt.Naina J Patel filing W.P.No.122/2008, respondent No.1 was clearly aware that Sri.Jignesh N. Patel had transferred title in her favour. Inspite of the same, respondent No.1 did not mention this very material aspect regarding title to the property brought for sale in the sale notice issued as per Annexure-A. Petitioner, therefore, was fully entitled to protect his interest and in view of deliberate suppression of the material facts made by respondent No.1, he did not deposit the full sale price and in such circumstances, respondent No.1 was not justified in forfeiting the amount deposited by the petitioner. “Courts must do justice by the promotion of honesty and good faith, as far as it lies in their power……… a different conclusion would be ‘opposed to what is reasonable, to what is probable, and to what is fair’.”</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. The above shows that loan account for realization of which the sale was held was ultimately settled to the full satisfaction of respondent No.1 by receiving the payment favouring the account of the borrower Sri.Jignesh N. Patel by third party Dr. Ramanuja and closed the account. Since payment has been accepted and loan account has been closed, respondent No.1 cannot now say that it has suffered any loss or damages. If that is so, there is no justification on the part of respondent No.1 in retaining the amount deposited by the petitioner in whose favour respondent No.1 in any case was not in a position to pass full title on account of the borrower/mortgagor transferring the property in favour of Smt.Naina J. Patel. Respondent No.1 has taken a position in the writ petition that since the assets were taken over by it under the provisions of SARFAESI Act, the gift deed executed by Sri.Jignesh N. Patel in favour of Smt.Naina J. Patel would not have any legal effect on the efficacy of sale and transfer of title in favour of highest bidder pursuant to sale notification dated 15.10.2010 (Annexure-A). The validity of such contention need not be gone into for two reasons namely, firstly, respondent No.1 has settled the loan account with its borrower by making OTS proposal and accepting payment towards the account of the borrower Sri.Jignesh N. Patel on the premise of full and final settlement and once that is done the security given for the due payment of the loan gets released rendering it no more available for sale. Secondly, even if the contention of respondent No.1 on the legal effect of sale under the SARFAESI Act is correct, the petitioner was justified in entertaining a doubt regarding the outcome of such a sale on passing title to him and on the said basis insisting upon respondent No.2 to clear the title and withholding the balance sale price and in such a situation respondent No.1 having settled the loan account with the borrower cannot mulct the further part consideration amount deposited by the petitioner. Since respondent No.1 has not suffered any loss or damage, it is not entitled to retain the amount of Rs.24,10,000/- deposited by the petitioner UNION OF INDIA v. RAMPUR DISTILLERY AND CHEMICAL CO. LTD. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. In that view of the matter, this petition is entitled to succeed. Accordingly, the writ petition is allowed. Since respondent No.1 has retained the amount from 15.10.2010, it is liable to pay interest @ 8% p.a. to the petitioner. Hence, respondent No.1 is directed to refund the amount of Rs.24,10,000/- to the petitioner with interest @ 8% p.a. from 15.11.2010 till the date of payment.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'de1b94ba1c37be436d1870814fb61e59.jpeg', '93da88cb6940de3b2133ab058acf456e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-21', 1, '', '', '2022-04-21 19:22:02', '2022-04-21 13:26:06'),
(1622, 'Ek5ZBAoHnyJ9wRn43clCXTfX0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Air India Limited is not a \'State\' within the meaning of Article 12 of the Constitution of India after disinvestment and hence Writ against it is not maintainable. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Padmavathi Subramaniyan and others Vs The Ministry of Civil Aviation Government of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 21448 of 2021 decided on 6 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice R. Devdas.  <o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Since a preliminary objection was raised at the hands of the respondents, including Union of  India that when once the Air India Limited is privatized and the entire share holdings are disinvested from the hands of the Government of India and a Private Company has taken over, the grievance of the employees of the Air India Limited cannot be  redressed directly under a writ jurisdiction of this Court, the learned Senior Counsel for the petitioners was required to answer this question. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. It was pointed out that the High Court of Delhi, in the case of Dr.Subramanian Swamy Vs. Union of India & Others reported in (2022) SCC OnLine Del 34, had an occasion to consider the issue regarding disinvestment process, the Union of India had placed factual information before the Delhi High Court in the matter of disinvestment of Air India Limited.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The learned Assistant Solicitor General of India, appearing for the Union of India has pointed out from the said decision that the disinvestment of the shares of the Government of India has been 100% in favour of M/s.Talace Private Limited. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. From the above, it is clear that the Air India Limited is now a private Company owned by M/s.Talace Pvt. Ltd. The earlier position of Air India Limited which was a fully owned Government of India Company, has changed and it is now a Private Limited Company.  Therefore, the grievance of the petitioner  in the matter of seniority can be redressed only before the competent authority which can deal with the question and not under Article 226 of the Constitution of India.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. With these observations, the writ petition stands dismissed, granting liberty to the petitioners to approach the competent authority to redress their grievance in the matter of seniority. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In view of the above, I.A.No.2/2022 for impleading does not survive for consideration and accordingly the same stands disposed of. Ordered accordingly.</b></font></span></p>', 'b76a562725214f40c9dd58b641d27287.jpeg', '51b3099807d8ec6e5b818610c76716fc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-21', 1, '', '', '2022-04-21 20:03:18', '2022-04-21 11:56:30'),
(1624, 'zHqhux6Xe8QXRD4Fiai3wxfOD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Imposition of punishment is the prerogative of the Disciplinary Authority. Courts can interfere only if the punishment is shockingly disproportionate to the misconduct. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/s Indian Oil Corporation Ltd Vs Rajendra D. Harmalkar<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2911 of 2022 decided on 21 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 29.06.2015 passed by the High Court of Judicature at Bombay at Goa in Writ Petition No.660 of 2013 by which the High Court has partly allowed the said writ petition preferred by the respondent herein (hereinafter referred to as the “original   writ   petitioner”) directing the petitioner herein to reinstate the original writ petitioner without any back wages and other  benefits by substituting the punishment of dismissal imposed by the Disciplinary Authority, the employer – Indian Oil Corporation Ltd. has preferred the present appeal. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.5. Relying upon the decision of this Court in the case of Om Kumar v. Union of India, (2001) 2 SCC 386; Union of India v. G. Ganayutham, (1997) 7 SCC 463; Union of India v. Dwarka Prasad Tiwari, (2006) 10 SCC 388; and  Union of India v. Diler Singh, (2016) 13 SCC 71, it is submitted that while interfering with the order of punishment imposed by the Disciplinary Authority the High Court has exceeded in its jurisdiction while exercising its powers  under Article 226 of the Constitution of India. It is submitted that as per the settled position of law unless there is a procedural irregularity in conducting the disciplinary proceedings and/or the punishment imposed is shockingly disproportionate to the proved misconduct, then and then only, the High Court can exercise powers under Article 226 of the Constitution of India and interfere with the order of punishment imposed by the Disciplinary Authority.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. By the impugned judgment and order, the High Court, in exercise of powers under Article 226 of the Constitution of India, has interfered with the order of punishment imposed by the Disciplinary Authority and has ordered reinstatement without back wages and other benefits by observing that order of punishment of dismissal from the service imposed by the Disciplinary Authority is disproportionate to the misconduct proved. Therefore, the short question which is posed for consideration by this Court is, whether, in the facts and circumstances of the case the High Court is justified in interfering with the conscious decision taken by the Disciplinary Authority while imposing the punishment of dismissal from service, in exercise of powers under Article 226 of the Constitution of India.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. On the question of judicial review and interference of the courts in matters of disciplinary proceedings and on the test of proportionality, a few decisions of this Court are required to be referred to:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i) In the case of  Om Kumar (supra), this Court, after considering the Wednesbury principles and the doctrine of proportionality, has observed and held that the question of the quantum of punishment in disciplinary matters is primarily for the disciplinary authority to order and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the well­known principles known as ‘Wednesbury principles’.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In the Wednesbury case, (1948) 1 KB 223, it was said that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited.  Lord Greene further said that interference was not permissible unless one or the other of the following conditions was satisfied, namely, the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered, or the decision was one which no reasonable person could have taken.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.1. In the present case, the original writ petitioner was dismissed from service by the Disciplinary Authority for producing the fabricated/fake/forged SSLC. Producing the false/fake certificate is a grave misconduct. The question is one of a TRUST. How can an employee who has produced a fake and forged marksheet/certificate, that too, at the initial stage of appointment be trusted by the employer? Whether such a certificate was material or not and/or had any bearing on the employment or not is immaterial. The question is not of having an intention. The question is producing the fake/forged certificate. Therefore, in our view, the Disciplinary Authority was justified in imposing the punishment of dismissal from service.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.5. Even from the impugned judgment and order passed by the High Court it does not appear that any specific reasoning was given by the High Court on how the punishment imposed by the Disciplinary Authority could be said to be shockingly disproportionate to the misconduct proved. As per the settled position of law, unless and until it is found that the punishment imposed by the Disciplinary Authority is shockingly disproportionate and/or there is procedural irregularity in conducting the inquiry, the High Court would not be justified in interfering with the order of punishment imposed by the Disciplinary Authority which as such is a prerogative of the Disciplinary Authority as observed hereinabove. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.6. From the impugned judgment and order passed by the High Court, it appears that the High Court has denied the back wages and other benefits  and has ordered reinstatement on a concession given by the learned counsel on behalf of the original writ petitioner. However, it is required to be noted that for the period between 2006 to 2017 i.e. during the pendency of the writ petition the respondent was working in the Petroleum Division of Reliance Industries. Therefore, he was aware that even otherwise he is not entitled to the back wages for the aforesaid period. Therefore, the concession given on behalf of the original writ petitioner as such cannot be said to be a real concession. In any case in the facts and circumstances of the case and for the reasons stated above and considering the charge and misconduct of producing the fake and false SSLC Certificate proved, when a conscious decision was taken by the Disciplinary Authority to dismiss him from service, the same could not have been interfered with by the High Court in exercise of powers under Article 226 of the Constitution of India. The High Court has exceeded in its jurisdiction in interfering with the order  of punishment impose by the Disciplinary Authority while exercising its powers under Article 226 of the Constitution of India. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court in interfering with the order of  punishment imposed by the Disciplinary Authority of dismissing the original writ petitioner from service and ordering reinstatement without back wages and other benefits is hereby quashed and set aside. The order passed by the Disciplinary Authority dismissing the original writ petitioner from service  on the misconduct proved is hereby restored. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The present appeal is accordingly allowed.  In the facts and circumstances of the case, there shall be no order as to costs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ded88cee3489ca736fad3ae84bb45683.jpeg', '784e39242d962f7396164443af2e8d4e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-22', 1, '', '', '2022-04-22 17:09:57', '2022-04-22 12:37:02'),
(1625, 'OeIAU6Y7baFosd0D6bQ3KKPt5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When there is enormous delay in invoking the arbitration clause, applicant cannot contend that limitation would start from the date of serving the legal notice and after completion of 30 days from the date of service of the legal notice. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vishram Varu and Co vs Union of India.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2964 of 2022 decided on 21 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. That the appellant herein was issued work order in the year 1982.\r\nThat the work was executed in the year 1986. According to the\r\nappellant herein, he executed excess quantity of work beyond the\r\nschedule quantity of work to be done. Therefore, he was entitled to the\r\n1\r\nadditional amount for the excess quantity of work done. It is the case\r\non behalf of the appellant that a lot of correspondence was made by the\r\nappellant, however, the amount due and payable with respect to the\r\nexcess quantity of work done was not paid. The appellant through letter\r\ndated 31.05.2018 requested the General Manager of South Eastern\r\nRailway to release the amount due or refer the dispute to the arbitrator\r\nunder clauses 63 & 64 of General Conditions of Contract (GCC) under\r\nthe 1996 Act, however, no action was taken on the said letter.\r\nThereafter vide letter/communication dated 22.10.2018, again the same\r\nrequest was made to the General Manager, South Eastern Railway\r\neither to pay the amount which was overdue or refer the dispute to the\r\narbitrator, which was repeated vide communications dated 11.01.2019\r\nand 11.03.2019. According to the appellant, thereafter the appellant\r\nsent the Statement of Claim which was payable to him as per the work\r\norder dated 7.4.1982 issued by the railway authorities, which was\r\nexecuted up to 11.05.1986 and the work order dated 15.01.1984, which\r\nwas executed up to 26.08.1985. According to him, as per the statement\r\nof claim, the total amount due and payable was Rs. 1,19,46,297/-.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. We have heard Shri Pijush K. Roy, learned counsel appearing for\r\nthe appellant at length. At the outset, it is required to be noted that in the present case,\r\nwork order was issued on 7.4.1982 and the work/excess work was\r\ncompleted in the year 1986. Even as per the statement of claim, the\r\namount due and payable was under work order dated 7.4.1982, which\r\nwas executed up to 11.05.1986 and work order dated 15.01.1984 which\r\nwas executed up to 26.8.1985. Therefore, right to claim the amount, due\r\nand payable, if any, can be said to have accrued in the year 1985/1986.\r\nThereafter, the correspondences under the RTI Act had taken from the\r\nyear 2012 onwards. Thereafter, for the first time, the appellant served a\r\nlegal notice upon the General Manager, South Eastern Railway on\r\n22.10.2018 requesting either to release the amount which was overdue\r\nor to refer the dispute to the arbitrator under clauses 63 & 64 of GCC\r\nunder the 1996 Act. The aforesaid legal notice is thereafter followed by\r\nthree to four letters/communications and thereafter the appellant herein\r\nfiled the present application under Section 11(6) of the 1996 Act before\r\nthe High Court in the year 2019. Merely because for the claim/alleged\r\ndues of 1985/1986, the legal notice calling upon the respondent to pay\r\nthe amount due and payable or to refer the dispute to the arbitrator is\r\nmade after a period of approximately thirty-two years, the appellant\r\ncannot be permitted to say that the cause of action to file the application\r\nunder Section 11(6) of the 1996 Act had accrued in the year 2018/2019.\r\nIn the present case, the legal notice has been served and the arbitration clause is invoked and request to appoint the arbitrator was made after a\r\nperiod of approximately thirty-two years from the date of completion of\r\nwork. Therefore, the appellant, who served the legal notice invoking the\r\narbitration clause and requesting for appointment of an arbitrator after a\r\nperiod of approximately thirty-two years, cannot contend that still his\r\napplication under Section 11(6) of the 1996 Act be considered as the\r\nlimitation would start from the date of serving the legal notice and after\r\ncompletion of 30 days from the date of service of the legal notice and\r\ninvoking arbitration clause. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Now, so far as the reliance placed upon the decision of this Court\r\nin the case of Bharat Sanchar Nigam Limited (supra) is concerned, the\r\nsaid decision shall not be applicable to the facts of the case on hand. In\r\nthe aforesaid decision, the Court was not dealing with such a situation\r\nwhere the legal notice was issued and served and the arbitration clause\r\nwas invoked after a period of thirty-two years. In the aforesaid decision,\r\nthis Court has not stated and/or observed and/or held that despite the\r\nfact that the legal notice invoking the arbitration clause and/or request for\r\nreferring the dispute to the arbitrator is made after 20/30 years, still the\r\napplication under Section 11(6) of the 1996 Act can be entertained.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Therefore, in the facts and circumstances of the case, narrated\r\nhereinabove, the High Court has not committed any error in dismissing\r\nthe application under Section 11(6) of the 1996 Act on the ground that it <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is hopelessly barred by limitation and is a stale claim. We are in\r\ncomplete agreement with the view taken by the High Court.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. In view of the above and for the reasons stated above, the present\r\nappeal fails and the same deserves to be dismissed and is accordingly\r\ndismissed. There shall be no order as to costs.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '520198f33a36de432a8e969be7884911.jpeg', 'dc676a73b00b51af946445773ba2b09b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-25', 1, '', '', '2022-04-22 17:17:37', '2022-04-25 15:24:46');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1626, 'tBb07YcEVvyRNJG3R0xPI2cnd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Teachers in Government  aided schools are entitled to benefits of enhanced age of superannuation of 65 years on par counterpart teachers serving in Government Colleges and Universities. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jacob Thudipara Vs The State of Madhya Pradesh and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2974 of 2022 decided on 21 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarthna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The appellant herein was serving as a teacher. The dispute arose with respect to the age of superannuation/retirement, namely, whether, the appellant ­teacher is  entitled to get the benefits of enhanced age of superannuation of 65 years at par with his counterpart teachers serving in Government Colleges and Universities. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.1. The appellant was serving in 1OO% government aided private educational institution. At the relevant time, the Full Bench of the High Court of Madhya Pradesh in the case of Dr. S.C. Jain Vs. State of Madhya Pradesh and others (W.A. No. 950/2015) took the view that the teachers serving in the aided private educational institutions are not entitled to get the benefit of enhanced age of superannuation of 65 years. The appellant and others filed Writ Appeals before the High Court which   came   to   be dismissed, relying upon the case of Dr. S.C. Jain (supra). However, subsequently the decision of the Full Bench of the High Court in the case of Dr. S.C. Jain (supra) has been set aside by this Court vide judgment and order dated 07.05.2019 in C.A. No. 4675­4676 of 2019 in the case of  Dr. R.S Sohane Vs. State of M.P. & others (2019) 16 SCC 796, and it is held that the teachers like the appellant are entitled to get the benefit of enhanced age of superannuation of 65 years. The parties to the aforesaid appeals filed M.A. Nos. 1838­1839 of 2019 with I.A. No. 119950 of 2019 before this Court claiming the payment of outstanding salaries for the intervening period. This Court disposed of the aforesaid interlocutory application and clarified that they can approach the High Court for redressal of their grievances with regard to the payment of outstanding salaries of intervening period. As observed hereinabove, the appeal preferred by the appellant before the High Court has been dismissed by the Division Bench of the High Court relying upon the decision of Full Court in the case of Dr. S.C. Jain (supra), which has subsequently been set aside by this Court. Therefore, it is the case on behalf of the appellant that he shall be entitled to continue up to enhanced age of superannuation i.e., 65 years and shall be entitled to all the monetary benefits as if, he would have been continued up to the age of 65 years.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Having heard learned counsel appearing on behalf of the respective parties and considering the various orders passed by the High Court, by which in similar facts and situation and not accepting the submission on behalf of the State that on the principle of ‘no work no pay’ the teachers are not entitled to any monetary benefits for the intervening period between 62 years and 65 years of age, we are of the opinion that appellant shall be entitled to all consequential and monetary benefits including the arrears of salaries and allowances for the intervening period, as if he would have been retired at the age of 65 years. The appellant being similarly situated teacher cannot be singled out. Even in the case of Writ Appeal No. 378/2018 and other allied writ appeals, it was submitted by the State that on the principle of ‘no work no pay’ such teachers are not entitled to any monetary benefits. However, the High Court vide detailed judgment and order has negated such a plea and defence and has observed that as the teachers were prevented from serving up to the age of 65 years though they were entitled to, as held by this Court in the case of Dr. R.S. Sohane (supra), they cannot be denied the monetary benefits for the intervening period. It is reported that the said judgment and order passed by the Division Bench of the High Court has been implemented by the State after the Special Leave Petition against the said judgment and order has been dismissed by this Court.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. In view of the above discussion and for the reasons stated above, the present appeal succeeds. The impugned judgment and order passed by the Division Bench of the High Court in W.A. No. 667/2016 is hereby quashed and set aside, which was passed relying upon the decision of Full Bench of High Court in W.A. No. 950/2015, which has been subsequently set aside by this Court in the case of Dr. R.S. Sohane (supra). It is held that the  appellant herein is entitled to the benefit of enhanced age of superannuation i.e., 65 years. He shall be entitled to all the consequential and monetary benefits including arrears of salaries and etc., as if, he would have been continued up to the age of 65 years. The arrears etc., shall be paid to the appellant within a period of six weeks’ from today. However, considering the fact that there was a huge delay in preferring the appeal, which has been condoned by this Court, the appellant shall not be entitled to any interest on the arrears for the period between 09.05.2017 till the filing of the present appeal. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The present appeal is accordingly allowed.  In the facts and circumstances of the case, there shall be no order as to costs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ddff36fc68138c217d0709ce874bcdcc.jpeg', '739fe7c6f8b82bb1265dc061aa67c578.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-23', 1, '', '', '2022-04-22 17:27:53', '2022-04-23 12:30:07'),
(1627, 'GXVAFgW8Wu1EYxJR7cIgYsTqR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Dowry death.  ‘Soon before her death’ ought to be interpreted to mean proximate and to be linked with but not to be understood to mean immediately prior to the death. Supreme Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Devender Singh and others Vs The State of Uttarakhand.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 383 of 2018 decided on 21 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice N.V. Ramana, Justice A.S. Bopanna and Justice Hima Kohli.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The brief facts leading to the case are that the appellant No.1, Devender\r\nSingh, son of appellant No. 3, Smt. Kunja Devi and Bhawan Singh was married to\r\nthe deceased, Sushila, the wedding having been solemnized on 20th October, 2007.\r\nSushila is stated to have gone missing from her matrimonial home since 24th April,\r\n2008. This came to the knowledge of the mother of the deceased when the\r\nappellant No.2 herein, Jagdish Singh, brother of the appellant No. 1 called her on\r\n25th April, 2008, at 7.00 p.m. to inform her and enquire as to whether Sushila had\r\ngone to the parental home. The mother of the deceased in turn informed her son,\r\nthe complainant, who resided at Haridwar. On returning to his house, the\r\ncomplainant went to the matrimonial home of the deceased on 28th April, 2008. It\r\nhas been alleged by the complainant that keeping in view the fact that there were\r\nrepeated demands for dowry made by the appellants and the manner in which they\r\nhad behaved with him when he had gone to visit them, made him suspect that his\r\nsister had been killed by the appellants but they were feigning ignorance and acting\r\nas if his sister had gone missing. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Section 304B IPC read along with Section 113B of the Indian Evidence\r\nAct, 1872 makes it clear that once the prosecution has succeeded in demonstrating\r\nthat a woman has been subjected to cruelty or harassment for or in connection with\r\nany demand for dowry soon after her death, a presumption shall be drawn against\r\nthe said persons that they have caused dowry death as contemplated under Section\r\n304B IPC. The said presumption comes with a rider inasmuch as this presumption\r\ncan be rebutted by the accused on demonstrating during the trial that all the\r\ningredients of Section 304B IPC have not been satisfied.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Having taken note of the relevant provision and the ingredients thereof,\r\nthe facts of the instant case would disclose that the deceased and the appellant\r\nNo.1 had got married on 20th October, 2007. Sushila, wife of the appellant No.1 had\r\ngone missing from the matrimonial home from 24th April, 2008 and her dead body\r\nwas fished out on the 10th day from river Alakhnanda near Naragasu. From the\r\nbasic facts noted above, the basic ingredients of Section 304B IPC such as the\r\ndeath not being normal and such a death having occurred within 7 years from the\r\ndate of her marriage would stand fully established. The question, therefore, is as to\r\nwhether the evidence tendered by the prosecution would be sufficient to establish\r\nthe remaining ingredients of Section 304B IPC with regard to the demand for dowry\r\nand perpetration of cruelty and harassment in connection with such a demand.\r\nFurther, whether such cruelty and harassment were suffered by the deceased soon\r\nbefore her death so as to constitute a dowry death. As to the phrase ‘soon before\r\nher death’, it is well-settled that the same ought to be interpreted to mean proximate\r\nand to be linked with but not to be understood to mean immediately prior to the\r\ndeath.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2 (2011)11 </span><span style=\"font-size: 12pt;\">SCC 359</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>3 (2015) 17 SCC 405</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>4 (2010) 3 SCC 152</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>5 (2010) 12 SCC 350</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. While taking note of the evidence and the other aspects of the matter,\r\nwhat is also to be borne in mind in the instant case is that the death which did not\r\ntake place in normal circumstances, had occurred within just about 6 months from\r\nthe date of the marriage. In that context, a perusal of the evidence of Smt. Thapa\r\nDevi (PW-1), mother of the deceased gains significance. She had categorically\r\nstated that when the deceased had for the first time come to the parental home from\r\nher in-laws, she had said that her in-laws and husband were demanding dowry and\r\nhad been harassing her. The nature of the demand was also specified to say that\r\nthey were seeking payment of a sum of ?2,00,000/- (Rupees Two lakhs) as dowry\r\nand in the alternative, to get a house constructed in Haridwar. PW-1 further stated\r\nthat on 10th April, 2008, when she had gone to her daughter’s house, the appellants\r\nhad at that stage quarrelled with her and placed a demand before her for\r\n?2,00,000/- (Rupees Two lakhs) or to have a house constructed for them in\r\nHaridwar. She however came back on 11th April, 2008, leaving her daughter behind.\r\nWithin 2-4 days thereafter, the deceased is stated to have called PW-1 indicating\r\nthat she was disturbed as the appellants were harassing her badly and also beating\r\nher. PW-1 stated that she had conveyed this to her brother-in-law, Mr. Rajendra\r\nSingh and shared with him about such a demand and harassment faced by the\r\ndeceased. Her brother-in-law had assured her that he would come over after 2-3\r\ndays and attempt to sort out the matter.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. Though, the High Court has also referred to the evidence of the remaining\r\nwitnesses produced by the prosecution, keeping in view the fact that the evidence\r\nas required for establishing the demand of dowry and harassment is to be noted\r\nfrom the evidence as taken note of hereinabove, it would be clear that even though\r\nthe appellants have sought to urge that at the time of fixing the marriage, no dowry  <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was exchanged or demand placed and that the wedding expenses were also shared\r\nby both sides, the categorical oral testimony of PW-1 to PW-4 that remained\r\nunshaken would indicate that soon after the marriage, when the deceased for the\r\nfirst time came to her parental home, she had stated about the demand for dowry\r\nmade on her and specified the demand, i.e., a sum of ?2,00,000/- (Rupees Two\r\nlakhs) or to construct a house in Haridwar. Even though it has been contended on\r\nbehalf of the appellant that the deceased was staying at her parental house to\r\ncomplete her studies, as per the version of PW-1 while accepting that position, she\r\nhad asserted that about 10-11 days after the wedding, Sushila had gone to her\r\nparental home but soon after sitting for the intermediate examination, she had gone\r\nback to the matrimonial home. The fact however remains that she went missing from\r\nthe matrimonial home and the body was recovered from the river in the vicinity of the\r\nmatrimonial home. In that regard, apart from the testimony of the witnesses who\r\ndeposed that the deceased had told them about the dowry demand and harassment\r\nduring her first visit to the parental home, PW-1 referred to the incident that took\r\nplace on 10th April, 2008, when she herself had gone with her daughter to the inlaws’ house to drop her and all of them had quarrelled with her on the aspect relating\r\nto dowry in the same terms, i.e., a demand of ?2,00,000/- (Rupees Two lakhs) or for\r\na house to be built in Haridwar. She had thereafter returned on 11th April, 2008 which\r\nwas about two weeks prior to the date on which the deceased had gone missing.\r\nFurther, PW-1 has also stated that within 2-4 days from 11th April, 2008, after she\r\nhad returned, the deceased had made a phone call and was very disturbed since </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">she was being harassed badly and was being beaten. She had shared this with her\r\nbrother-in-law, Sh. Rajendra Singh, who has been examined as PW-7. In addition,\r\nPW-2 also deposed with regard to the complaint made by the deceased over the\r\nphone in the morning of the fateful day, i.e., 24th April, 2008, about her husband\r\ntreating her with cruelty when in her pregnant state, she had asked for medicine for\r\nthe pain in her abdomen.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. The appeal is partly allowed on the above terms.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '75bd955a42d936d8b14e820026916447.jpeg', '9e1d0fad267d17d50da402169a01cf9a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-25', 1, '', '', '2022-04-22 17:42:15', '2022-04-25 11:52:10'),
(1628, 'ysTEYPWxw2qlZ7fKYYFj3hFPW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration. Party has a right to file counter claim independent of any liberty granted by the arbitral tribunal. Delhi High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>National Highway Authority of India Vs Abhijeet Angul Sambalpur Toll Road Limited.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>O.M.P (COMM) 224 of 2021 decided on 28 February 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice C. Hari Shankar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This petition under Section 34 of the Arbitration and\r\nConciliation Act, 1996 (“the 1996 Act”), assails para 6.1.7 of order\r\ndated 26th August, 2020 passed by the majority of the learned Arbitral\r\nTribunal, which consisted of three members, whereby the learned\r\nArbitral Tribunal has held that it would not entertain or adjudicate any\r\nof the counter-claims raised by the petitioner-NHAI vide its\r\napplication dated 4th February, 2020 except the counter-claim for\r\n?12.2 crores.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The impugned majority decision proceeds on the premise that\r\nthe learned Arbitral Tribunal had, vide its earlier order (dated 24th\r\nSeptember, 2019) allowed NHAI to file a counter-claim “for the\r\namount of ? 12.2 crores only”.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. From a reading of the order dated 24thSeptember, 2019 passed\r\nby the learned Arbitral Tribunal, it is clear that this assumption of the\r\nlearned Arbitral Tribunal is actually predicated on a misreading of the\r\norder dated 24th September, 2019. The order dated 24th September,\r\n2019, which was passed by the learned Arbitral Tribunal on an\r\napplication by the NHAI under Section 17 of the 1996 Act, does not\r\nstate that the petitioner would file a counterclaim only for an amount\r\nof ?12.2 crores.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Clearly, the order dated 24th September, 2019, while it grants\r\nliberty to the petitioner to prefer a counter-claim for the amount of\r\n?12.2 crores, in connection with which NHAI had moved the Section\r\n17 application, does not restrict the right of NHAI to file any other\r\ncounter-claim. Ms. Aishwarya Bhati, learned Additional Solicitor\r\nGeneral has candidly submitted that the Arbitral Tribunal would have\r\nbeen within its authority in rejecting the counter-claims other than the\r\ncounter-claim for ?12.2 crores on any other ground subject, of course,\r\nto the right of NHAI to contest the same. She submits, however, that\r\nthe learned Arbitral Tribunal could not take a view that it would not\r\nentertain any other counter-claim, save and except the counter-claim\r\nfor ?12.2 crores.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The only ground on which the learned Arbitral Tribunal has\r\ndeclined to entertain the counter-claims preferred by the petitioner’s\r\napplication dated 4th February, 2020, except for the counter-claim of\r\n?12.2 crores, is the presumption that the right to file counter-claim, as\r\nextended to the petitioner by the earlier order of the learned Arbitral\r\nTribunal, was only in respect of the counter-claim for?12.2 crores.\r\nThis, as is apparent, is not the actual position.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The right of the petitioner to file counter-claims exists\r\nindependent of any liberty granted by the learned Arbitral Tribunal. It\r\nis always open to the learned Arbitral Tribunal to reject the counterclaims either on merits or on limitation or even on the ground that they\r\nare not arbitrable within the scope of the reference made to learned\r\nArbitral Tribunal, in exercise of the powers conferred by it by Section\r\n16 of the 1996 Act1\r\n, which empowers an Arbitral Tribunal to rule on\r\nits own jurisdiction.The learned Arbitral Tribunal could not, however, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">take a view that it would not entertain any such counter-claim, if\r\npreferred before it.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. Mr. Sandeep Bajaj, learned counsel for the respondent, has\r\ncontested the maintainability of the present petition. He submits that\r\nthe impugned order cannot regarded as “interim award”, so as to make\r\na petition under Section 34, challenging the order, maintainable.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>8. Decisions of the Arbitral Tribunal are amenable to challenge,\r\nbefore the Court, either under Section 34 or under Section 37 of the\r\n1996 Act. Section 37 envisages appeals against orders passed by the\r\nArbitral Tribunal. Of these, direct appeals from a decision of the\r\nArbitral Tribunal are covered by Section 37(2), and lie against orders\r\neither accepting applications under Section 16(2)(3) or granting or\r\nrefusing to grant an interim measure under Section 17. As such,\r\norders which do not fall within one or the other of the aforesaid sub\r\nclauses of Section 37(2) would not be amenable to challenge by way\r\nof appeal.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>9. Section 34 of the 1996 Act allows recourse to a Court against\r\nany “arbitral award”. “Arbitral award” is defined in Section 2(1)(c) as\r\nincluding an interim award.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>10. “Interim award” is, however, not defined in the 1996 Act.\r\nSection 31(6) of the 1996 Act, however, empowers an Arbitral\r\nTribunal to make an interim award on any matter with respect to\r\nwhich it may make a final arbitral award. </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Inasmuch as an interim award is also an “arbitral award” as\r\ndefined in Section 2(c), an interim award would be susceptible to\r\nchallenge under Section 34 of the 1996 Act. This fact was noticed by\r\nthe Supreme Court in Indian Farmers Fertilizer Cooperative Ltd v.\r\nBhadra Products2\r\n(IFFCO, hereinafter). The issue before the Supreme\r\nCourt, in that case, was whether an order rejecting a claim on the\r\nground of limitation, could be treated as “interim award”, so as to\r\nmake the order amenable to challenge under Section 34 of the 1996\r\nAct.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. In my view, the import of the afore-extracted passages from the\r\njudgment of the Supreme Court in IFFCO2\r\nis clear and categorical.\r\nAny matter, on which an Arbitral Tribunal may make a final award,\r\ncan also be subject of an interim award made by it. If, therefore, the\r\ndecision of the Arbitral Tribunal brings a quietus to an issue before the\r\nArbitral Tribunal, and is an order which the Arbitral Tribunal is\r\nempowered to pass at the final stage, it would constitute an “interim\r\naward” within the meaning of Section 31(6) and, consequently, within\r\nthe meaning of Section 34 of the 1996 Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">13. The impugned order dated 26th August 2020, of the learned\r\nArbitral Tribunal has effectively rejected the counterclaims filed by\r\nthe petitioner by stating that it “refused to entertain” the said claims.\r\nThe reason for such rejection is, as is apparent from the impugned\r\nparagraph from the order dated 26th August, 2020, that the claims were\r\nnot maintainable in view of the limited liberty granted by the learned\r\nArbitral Tribunal vide its earlier order dated 24th September, 2019. A\r\ndecision that the counter-claim is not maintainable and is, therefore, </span><span style=\"font-size: 12pt;\">liable to be rejected, is a decision which an Arbitral Tribunal can\r\ncertainly take at the final stage of the proceedings, especially in view\r\nof the power conferred on the Arbitral Tribunal, by Section 16 of the\r\n1996 Act, to rule on its own jurisdiction especially in view of the\r\npower conferred on the Arbitral Tribunal by Section 16 of the 1996\r\nAct, to rule on its own jurisdiction. Being, therefore, in the nature of a\r\ndecision which could be taken at the final stage of the proceedings, i.e.\r\nin the final award which the Arbitral Tribunal would pass, such a\r\ndecision, when taken at an interlocutory stage, would, in my view,\r\ncertainly constitute an “interim award” within the meaning of the 1996\r\nAct, in view of the law laid down in IFFCO2\r\n.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">14. Mr. Sandeep Bajaj, learned counsel for the respondent has\r\nplaced reliance on a recent judgment of a learned Single Judge of the\r\nHigh Court of Calcutta in Lindsay International Pvt Ltd v. IFGL\r\nRefectories Ltd . The High Court of Calcutta, in that case, was\r\nconcerned with a challenge to a decision, by the Arbitrator, to reject an\r\napplication, by the petitioner (before the High Court) for amendment\r\nof its counter-statement before the learned Arbitral Tribunal seeking\r\nintroduction of counter-claims. The rejection of the counter-claims\r\nwas on the ground that they were barred by limitation. This, it was\r\nsought to be contended, effectively amounted to an adjudication of the\r\ncounter-claims, bringing an end to the lis between the parties in that\r\nregard and, therefore, was in the nature of an “interim award”. It was\r\nalso contended that the counter-claims were not, in fact, barred by\r\ntime and, in that regard, Section 23(3) of the 1996 Act was pressed  </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">into service.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. It is seen, from the aforesaid decision of the High Court of\r\nCalcutta, that the High Court has not alluded to the authority of the\r\nArbitral Tribunal, in exercise of its jurisdiction under Section 16 of the\r\n1996 Act, to rule on its own jurisdiction, which would include the\r\npower to reject a claim or counter-claim as being beyond the scope\r\nof the reference made before it. Viewed thus, any decision to the said\r\neffect, taken at the interim stage, would, in my view, constitute\r\nan“interim award” and would, therefore, be amenable to challenge\r\nunder Section 34.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. Accordingly, the impugned decision of the learned Arbitral\r\nTribunal, whereby it has declined to entertain the counter claims of the\r\nNHAI, as preferred by its application dated 4th February, 2020, save\r\nand except the counterclaim for ?12.2 crores, cannot sustain in law. It\r\nis, accordingly, quashed and set aside.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. The petition is, accordingly, allowed with consequential relief <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to NHAI with no order as to costs. All pending applications also stand\r\ndisposed of.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '17f8ac3bac6598cf6ff4deeb1bf3609f.png', 'e52ca16a5f634452a945f657b9f89b36.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-26', 1, '', '', '2022-04-22 17:52:43', '2022-04-26 06:02:02'),
(1629, 'I54EPy7agaxZvI2TGrmauuNGt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Lodging of accounts of electoral expenditure is aimed at transparency, purity and accountability. Disqualification due to failure cannot be avoided on flimsy grounds. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K Srinivas and others Vs The Karnataka State Election Commission and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 3415 of 2022 decided on 18 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petitioners having been disqualified from continuing as the elected members of the Municipality are knocking at the doors of the Writ Court for assailing the disqualification order dated 15.11.2021, a copy whereof  is at Annexure – H issued by the 1st Respondent – State Election Commission</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>2. After service of notice, the respondents having entered appearance through their learned advocates oppose the petition, making submission in justification of the impugned order and the reasons on which  it  has been constructed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>3. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines to grant indulgence in the matter as under and for the following reasons:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(a) Section 16C of the Karnataka Municipalities Act, 1964 provides for disqualification of elected members on the ground that they have failed to lodge a true and correct account of electoral expenditure with the Returning Officer within 30 days to be reckoned from the date of declaration of the result of victorious candidate. It is to be noted that Section 16C of the 1964 Act, corresponds to Section 77(1) & 78 of the Representation of Peoples Act, 1951, read with Rule 86 of the Conduct of Election Rules, 1961.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(b) A few prefatory observations are necessary before considering the explanation offered by the petitioners for not lodging the account of election expenses. It hardly needs to be stated that an election is a  politically sacred public act, not of one person or of one official, but of the collective will of the whole  constituency. Adjudication of disputes of the kind at the hands of the competent authority is governed by the statutes, common law, equity & the like ordinarily remaining strangers vide JYOTI BASU vs. DEBI GHOSAL 1982 (3) SCR 318.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(c) C. RAJAGOPALACHARI (1878 –1972), a veteran Freedom Fighter in his prison diary in 1922 had noted: “…Elections and their corruption, injustice and tyranny of wealth, and inefficiency of administration, will  make  a hell of life as soon as freedom is given to us…”. The rationale of imposing a limit on expenditure incurred or authorized by a candidate in an election is to eliminate,  as far as possible, the pernicious influence of ‘big money’ on the election process. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(d) The legislature enacted the provisions of section 16C in the 1964 Act mandating the lodging of accounts of electoral expenditure is for the purpose of bolstering the transparency in and purity of the election process in general and accountability of the candidates in particular. This apart, the prescription of lodging of accounts of electoral expenditure with default clause of  disqualification is aimed at removing the propensity for corruption and bribery in election process.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(e) Indisputably, corruption in general is an insidious plague with detrimental effects on societies. Electoral corruption in particular has a corrosive effect on the democratic polity. Maintaining the purity of the electoral process, requires a multi-pronged approach, which includes removing the influence of money and criminal elements in politics and introducing strict standards of financial transparency in the functioning of the political parties or candidates. Regulating election expenditure is the first step  toward  combating corruption. It is in this light that the obligation to file accounts of electoral expenditure as enacted by law  needs to be scrupulously complied with, failing which its very purpose would be defeated. It is also for the preservation of purity & probity of elections and maintenance of ‘public trust’. Normally, although a mere failure to lodge a correct election accounts does not amount to a corrupt practice, it cannot be gainsaid that failure to lodge accounts of electoral expenditure in general and correct accounts of electoral expenditure in particular  sullies the process of elections, giving scope  for a strong assumption that unethical & dishonest forces have been at play as nearly observed by the Apex Court  in ASHOK SHANKARRAO CHAVAN vs. MADHAVRAO KINHALKAR (2014) 7 SCC 99. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(f) In their parrot like reply to the notices as aforementioned, petitioners have given two reasons for not lodging the accounts of electoral expenses in time  and with the Returning Officer:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(i) they were busy in attending to the problems of the electoral constituencies and</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(ii) that they were not aware of the requirement of lodging the accounts of electoral expenditure. They have specifically prayed for accepting the delayed filing of  these accounts. The first explanation offered by the petitioners that they were busy and preoccupied in attending to the problems of the electors, cannot be said to be plausible. To qualify an exemption from this obligation, a strong ground has to be made out. The explanation offered is unreasonable to say the least and,  if countenanced would lay a very bad precedent with abundant potential for abuse. It also militates against the very intent of legislature prescribing such an obligation. Fortunately, they have not sought refugee under the umbrella of COVID–19, the pandemic having significantly receded by that time. Indisputably, it is the duty of every elected representative to cater to the cause of constituency. Other elected members have not defaulted, quoting similar grounds. In matter like this, no leniency   is admissible. An argument to the contrary offends the policy content of the provision. Therefore, such an explanation hardly constitutes a ground for the condonation of lapse. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(g) The second explanation offered by the petitioners for not lodging the account is that they were not much aware of its legal requirement. It is dangerous to countenance such a contention, to say the least. The sages of law since centuries have said: ‘Ignorantia legis nemimem excusat’. Any standard treatise of law like BROOM’S LEGAL MAXIMS, Tenth Edition, page 169–171 tells that ignorance of law is no excuse. This age old norm obtaining in all civilized jurisdictions applies equally if not more to the elected representatives, as  the  trustees of public offices. An argument to the contrary cannot be sustained on any count. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(h) The contention of the petitioners that the Election Commission has proceeded on a wrong premise that no explanation is offered by the petitioners for not lodging the accounts of electoral expenditure, cannot be agreed to for the reasons already mentioned above. After all, an explanation which is neither plausible nor probable is no explanation at all. Even reversing the observation   of the election commission that the petitioners had sent their reply would not make any difference to the case, in the light of discussion made above.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b> (i) The vehement submission of learned Senior Advocate appearing for the petitioners that the law requires an opportunity of hearing whilst making the punitive order of the kind, need not be addressed by the Court inasmuch as no such plea is taken in the petition,  as rightly pointed out by the learned AAG, Mr. R. Subramanya. Not even a whisper is made as to any prejudice having been caused because of the absence of hearing. The principles of natural justice cannot be invoked as a mindless priest ritualistically chanting the mantra. Our legal system has evolved from the form to substance. Some prejudice because of violation of these principles has to be demonstrated; after all,  the  principles of natural justice are not immutable axioms. Even here it is not shown as to how the impugned order would have been different, had the petitioners been  heard in the matter by the State Election Commission, already the battle lines having been drawn up by the stand they have taken up in their reply to the notice. In such a circumstance, the impugned order cannot be treated as having infirmity of the kind vide S.L. KAPOOR vs. JAGMOHAN (1980) 4 SCC 379:“…natural justice may always be tailored to the situation…” </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>In the above circumstances, this Writ Petition being thoroughly devoid of merits is liable to be dismissed and accordingly it is, costs having been made easy.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fdbe7091a31a95d9f6339577fc3df398.jpeg', 'b96485829df02992f5d24f45d53b44e9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-22', 1, '', '', '2022-04-22 18:17:18', '2022-04-22 15:32:05');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1630, 'CFciYcqFj2JLchbJ1p2gYRCJQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Allotment of land by Govt. Mere deposit of entire amount unilaterally by a party in the absence of any allotment letter would not create any right to claim allotment in its favour. Rajastan High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/s Mangalam Arts Vs State of Rajasthan and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Writ Petition 8082 of 2018 decided on 20 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ashok Kumar Gaur.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The brief facts, as pleaded in the writ petition, are that the\r\npetitioner is a partnership firm, engaged in the activity of\r\nmanufacturing and exporting handicrafts, wooden furniture and\r\nother items, having its manufacturing units at different locations\r\nsuch as Jaipur, Udaipur, Mirzapur (UP), Agra (UP) & Delhi, etc.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The petitioner-firm in order to establish its new industrial\r\nunit in the new Industrial Area namely Prahaladpura situated at\r\nproposed Ring Road on the Southern side of Jaipur City applied for\r\nallotment of plot in pursuance of the public notice dated\r\n13.12.2015 issued by the respondent-Corporation for different\r\nsizes. The petitioner-firm had applied for one plot of size of 10,000\r\nSq.Mtrs. against plot No.A/127 to A/130, as described in the writ\r\npetition.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The petitioner-firm was found successful in the procedure of\r\ndraw of lottery for allotment of plot No.A/127 and as such the\r\npetitioner-firm was allotted the said plot vide allotment letter\r\ndated 18.02.2016 and accordingly, the petitioner-firm deposited\r\nthe required amount and lease agreement was also executed in\r\nfavour of the petitioner-firm.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The petitioner-firm has pleaded that since it was planning to\r\nlaunch new industrial unit in the new Industrial Area, the\r\npetitioner-firm is said to have contacted the respondentCorporation for allotment of adjacent industrial plots on “first\r\ncome first serve” basis, as per the policy of the respondentCorporation.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The petitioner-firm has pleaded that a notice dated\r\n20.05.2017 was issued in the Rajasthan Patrika (Hindi) dated\r\n21.05.2017 and Hindustan Times (English) dated 21.05.2017\r\nwhereby three plots of 10,000 Sq.Mtrs. were offered for sale at\r\nthe rate of Rs.6,000/- per Sq.Mtrs. on “first come first serve” basis\r\nand the application was to be submitted online and in case of\r\noffline option, the UTR number of payment through RTGS/NEFT\r\nwas to be submitted within 48 hours.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The petitioner-firm has pleaded that it applied for allotment\r\nof plots bearing No.A/128 & A/129 on “first come first serve” basis\r\nalong with requisite documents and made the payment in bank\r\naccount of the respondent-Corporation vide UTR number, as\r\nmentioned in the communication dated 22.05.2017 sent to the\r\nrespondent-Corporation.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The petitioner-firm has pleaded that as per the priority\r\nmaintained by the respondent-Corporation only two applicants\r\nnamely Shri Krishna Sudershan Urja Private Limited and the\r\npetitioner-firm applied for industrial plot No.A/129 and the\r\npetitioner-firm had applied first with project cost of Rs.2146 Lakhs <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and similarly for the industrial plot No.A/128 only two persons had\r\napplied for allotment including the petitioner-firm and the\r\napplication of the petitioner-firm was first as it was given\r\napplication No.127 and the second applicant was having\r\napplication No.128.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>9. The petitioner-firm has pleaded that for all purposes, priority\r\nof the petitioner-firm was first and all the formalities including\r\npayment of requisite amount and furnishing of all desired\r\ndocuments was made by the petitioner-firm, as per the terms and\r\nconditions. </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. The primary question to be decided in the present writ\r\npetition is as whether the authorities have acted arbitrarily in\r\ntaking the decision of cancelling the allotment process which was\r\nbased on the method of “first come first serve”.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. This Court on careful scanning of the pleadings on record\r\nfinds that initial process of allotment of plots was under taken by\r\nthe respondent-RIICO by issuing an advertisement on 13.12.2015\r\nwhere by a public notice was issued, wherein draw of lottery was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the basis for allotment of plots and there were different sizes of\r\nplots available to be allotted to different applicants.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>27. This Court finds that the petitioner-firm was found successful\r\nin the draw of lottery for allotment of Plot No.A/127 and\r\naccordingly it was allotted the said plot and requisite formalities\r\nwere completed. The subsequent issuance of advertisement in\r\ndaily newspaper for allotment of plots on “first come first serve”\r\nbasis was not a normal course which was adopted by the\r\nrespondent-Corporation.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>28. This Court finds that the RIICO Rules though provides under\r\nRule 5 that RIICO can dispose of the plots in the industrial area\r\neither by public auction or by entertaining the individual\r\napplications, however, the allotment of plots without having\r\nelement of public auction by large number of applications has not\r\nbeen approved time and again by the Apex Court.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>29. This Court finds that in the case of Centre for Public\r\nInterest Litigation & Ors. Vs. UOI & Ors. reported in (2012)\r\n3 SCC 1 the Apex Court has laid down that for disposing of the\r\npublic properties, the State should adopt the method of public\r\nauction as it has more transparency and brings more revenue to\r\nthe authority. The sale of plots by inviting individual applications\r\nor on the basis of first come first serve leave room, where\r\nauthorities may use their discretion by not keeping in mind the\r\nbest interest of the Corporation.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. This Court finds that various notesheets, on which reliance is\r\nplaced by the petitioner-firm to build its case by terming the\r\naction of the respondent-Corporation as arbitrary, suffice it to say\r\nby this Court that the various notesheets/internal departmental\r\ncommunications, cannot be treated as decision of the\r\nState/RIICO. The expression of opinion by an Officer or a\r\nparticular individual is a noting simplicitor but the said noting\r\ncannot be treated as a decision of the competent authority.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>31. The submission of counsel for the petitioner that at one point\r\nof time the authorities had taken a decision to allot plots on the\r\nbasis of “first come first serve” as the industrial area was not fully\r\ndeveloped and many people were not interested in taking plots in\r\nthe said industrial area, suffice it to say by this Court that the said\r\nexpressions by certain officials, will not ultimately result into\r\ncreating any right in favour of the petitioner-firm.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32. The Apex Court in the case of State of Punjab & Ors. Vs.\r\nMehar Din (supra) has dealt with the right of the highest bidder\r\nin the auction proceedings and has found that until the decision is\r\ntotally arbitrary or unreasonable, the High Court should not sit like\r\na court of appeal and it is the competent authority who floats the\r\ntender, who is the best judge of its requirement. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>33. The Apex Court in the case of Municipal Committee,\r\nBarwala, District Hisar Haryana through its\r\nSecretary/President Vs. Jai Narayan & Co. & Anr. (supra)\r\nhas again reiterated the principle that there is no vested right of\r\nthe highest bidder, who participates in the public auction, to have\r\nthe auction proceedings concluded in his favour.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. The submission of counsel for the petitioner-firm that\r\nreasons assigned for cancelling the allotment were non-existent as\r\nthere was neither any ambiguity in the advertisement nor any\r\nirregularity in depositing the money, this Court finds that the initial\r\nconsideration with the authorities might have been the so-called\r\nirregularities, however, if the competent authority had taken the\r\ndecision that “first come first serve” method of awarding plots was\r\nnot required to be continued and public auction was better\r\nmethod, no arbitrariness can be attached to the said decision.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>35. The submission of counsel for the petitioner-firm that the\r\nApex Court in the case of Food Corporation of India Vs.\r\nM/s.Kamdhenu Cattle Feed Industries (supra) has considered\r\nthe legitimate expectation and scope of Article 14 of the\r\nConstitution of India and as such, this Court is called upon to\r\ndeclare the action of the respondent-Corporation as arbitrary, this <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court finds that the Apex Court has held that reasonable or\r\nlegitimate expectation may not be itself a distinct enforceable\r\nright but failure to consider and give due weightage to it may\r\nrender the decision arbitrary and whether the expectation of the\r\nclaimant is reasonable or legitimate in the context is a question of\r\nfact in each case and whenever the question arises, it is to be\r\ndetermined not according to the claimant’s perception but in\r\nlarger public interest, wherein other more important\r\nconsiderations may outweigh what would otherwise have been the\r\nlegitimate expectation of the claimant. A bonafide decision of the\r\npublic authority reached in such manner would satisfy the\r\nrequirement of non-arbitrariness and withstand judicial scrutiny.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>36. This Court, considering the facts of the present case and in\r\nview of the decision taken by the respondent-Corporation in the\r\nyear 2018 and again in the year 2021, finds that allotment of\r\nindustrial plots on “first come first serve” basis is not approved in\r\nthe interest of the respondent-Corporation and as such, the\r\ndecision cannot be termed arbitrary.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>37. Reliance is placed by counsel for the petitioner-firm on the\r\njudgment of the Apex Court in the case of State of Punjab Vs.\r\nBandeep Singh & Ors. (supra). The Apex Court, in background\r\nof facts of that case, found that since the writ petitioners had\r\ndeposited the earnest money and deposited more than 25% of the\r\nsale consideration and also tendered the entire remainder, as\r\nsuch, the writ petitioners were permitted to pay the prevailing\r\ncircle rate. According to this Court, the said judgment is of little\r\nassistance to the counsel for the petitioner-firm.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>38. This Court finds that merely by depositing amount\r\nunilaterally by the petitioner-firm, in absence of any allotment\r\nletter, would not create any right to claim allotment in its favour.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>39. This Court finds that the Division Bench of this Court in the\r\ncase of RIICO Vs. M/s.Genus Innovation Limited & Another\r\n[D.B.Special Appeal Writ No.1555/2008] had also considered the\r\nscope of Rule 5 and Rule 27 of the RIICO Rules.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>40. This Court accordingly finds that the respondent-Corporation\r\nhas not acted arbitrarily or illegally in any manner while issuing\r\nthe order dated 07.07.2017 cancelling the allotment process.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>41. Accordingly, the writ petition is dismissed and the interim\r\norder passed by this Court dated 16.04.2018 stands vacated. No\r\ncosts.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '665a1b716ed59a12cf33a32a5340c893.png', '86df4327179e0bab1030264a9ae05410.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-26', 1, '', '', '2022-04-22 18:42:53', '2022-04-26 07:58:10'),
(1631, 'PpFwuyGLtlCV9fzMBaa4IkErs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Claim to back wages. Employee has an obligation to plead that he was not gainfully employed after the date of dismissal. Only thereafter burden shifts on the employer to prove the contrary. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Allahabad Bank and others Vs Avtar Bhushan Bhartiya.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Special Leave petition 32554 of 2018 decided on 22 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Indra Banerjee and Justice V. Ramasubramanian.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. Aggrieved by an order of reinstatement with 50% back­wages, but all other consequential benefits in full, passed by the High Court of Judicature at Allahabad, the Management of the Allahabad Bank has come up with one Special Leave Petition and the delinquent Officer has come up with the other Special Leave Petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>32. Even if we apply the propositions enunciated by this Court in Deepali Gundu Surwase (supra), the Officer ­employee may not be entitled to full back wages. This is for the reason that there is nothing on record to show whether he was gainfully employed after his dismissal from service. A careful look at the pleadings in the writ petition W.P. No.1403 of 2013 would show that he has not pleaded about his non­employment. Though in paragraphs 36 to 38 of his writ petition, the employee has pleaded about the sudden set back to his health in the year 2011 and the financial hardships he was facing, there was no assertion about his non­employment. The employee had his pleadings amended after the dismissal of his appeal during the pendency of the writ petition. Even in the amended pleadings, there was no averment relating to his nonemployment. Therefore, even if we apply the ratio in Deepali Gundu  Surwase  (supra), the employee may not satisfy the third proposition found in para 38.3 thereof. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>33. The reliance placed upon the decision in Pawan Kumar Agarwala vs. General   Manager­II and Appointing Authority, State Bank of India and Others may not also be of help to the employee. It is a case where this Court applied the propositions laid down in Deepali Gundu Surwase (supra). This Court found that there was nothing to show that the employee was gainfully employed after the date of dismissal.  It is needless to point out that in the first instance, there is an obligation on the part of the employee to plead that he is not gainfully employed. It is only then that the burden would shift upon the employer to make an assertion and establish the same.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6 (2015) 15 SCC 184.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>34. The decision in  Fisheries   Department, State of Uttar Pradesh vs. Charan Singh arose out of an award of the Industrial Tribunal under the U.P. Industrial Disputes Act, 1947. Therefore, the same has no relevance to the case on hand. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>35. In Jayantibhai Raojibhai Patel vs. Municipal Council, Narkhed and Others , this Court referred to the principles laid down in Hindustan Tin Works (P) Ltd. vs. Employees and to the propositions culled out in the Deepali  Gundu  Surwase (supra). Though this Court held that the denial of back wages in entirety was not justified, this Court awarded only a lump­sum compensation in that case. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>36. Therefore, even applying the ratio laid down in various decisions, we do not think that the employee could be granted anything more than what the High Court has awarded.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7 (2015)</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8 SCC 150 8 (2019) 17 SCC 184</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9 (1979) 2 SCC 80</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>37. As we have pointed out at the beginning, the total period of service rendered by the Officer­ employee before his dismissal from service, was about 15 years, from 1974 to 1989 and he attained the age of superannuation in February, 2013, meaning thereby that he was out of employment for 24 years. The High Court has taken this factor into consideration for limiting the back wages only to 50% and we find that the High Court has actually struck a balance. We do not wish to upset this balance. Therefore, the Special Leave Petition of the Officer­employee is also liable to be dismissed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>38. Accordingly, both the Special Leave Petitions are dismissed, no costs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f485a30d149c22597e0551c134f17269.jpeg', 'c95944b9cf7c5a5ff090d87b9f570664.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-26', 1, '', '', '2022-04-23 01:40:49', '2022-04-26 10:30:52'),
(1632, 'tfAYJEeJuXZgSDZBtWo9Vz3bv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Remittance of sentence. While court can review decision of government to determine whether it was arbitrary, it cannot usurp power of government and grant remission itself. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ram Chander Vs The State of Chhattisgarh and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition (CRL) 49 of 2022 decided on 22 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dhananjaya Y Chandrachud and Justice Aniruddha Bose.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The petition under Article 32 of the Constitution has been instituted by a\r\nconvict, who is undergoing a sentence of imprisonment for life upon being\r\nconvicted for the commission of offences punishable, inter alia, under Section\r\n302 read with Section 149 of the Indian Penal Code . He seeks the issuance of a\r\nwrit directing the first respondent to grant him pre-mature release. The factual\r\nbackground has been set out below.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. While a discretion vests with the government to suspend or remit the\r\nsentence, the executive power cannot be exercised arbitrarily. The prerogative of\r\nthe executive is subject to the rule of law and fairness in state action embodied in\r\nArticle 14 of the Constitution. In Mohinder Singh (supra), this Court has held that\r\nthe power of remission cannot be exercised arbitrarily. The decision to grant\r\nremission should be informed, fair and reasonable. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In Sangeet (supra), this Court reiterated the principle that the power of remission\r\ncannot be exercised arbitrarily by relying on the decision in Mohinder (supra).</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. While the court can review the decision of the government to determine\r\nwhether it was arbitrary, it cannot usurp the power of the government and grant\r\nremission itself. Where the exercise of power by the executive is found to be\r\narbitrary, the authorities may be directed to consider the case of the convict\r\nafresh.\r\nIn Laxman Naskar v. State of West Bengal, while the jail authorities were in\r\nfavour of releasing the petitioner, the review committee constituted by the\r\ngovernment recommended the rejection of the claim for premature release on the\r\ngrounds that</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) the two witnesses who had deposed during the trial and people of\r\nthe locality were apprehensive that the release of the petitioner will disrupt the\r\npeace in the locality;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) the petitioner was 43 years old and had the potential of\r\ncommitting a crime; and</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iii) the crime had occurred in relation to a political feud\r\nwhich affected the society at large.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Based on the above factors, the Court found that the government’s decision to\r\nreject the claim of remission was based on reasons that were irrelevant or devoid\r\nof substance. The Court quashed the order of the government and directed it to\r\ndecide the matter afresh. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. Sub-section (2) of Section 432 of the CrPC provides that the appropriate\r\ngovernment may take the opinion of the presiding judge of the court before or by\r\nwhich the person making an application for remission has been convicted on\r\nwhether the application should be allowed or rejected, together with the reasons\r\nfor such opinion.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. In Sangeet (supra), the Court held that sub-sections (2) to (5) of Section\r\n432 lay down procedural safeguards to check arbitrary remissions. The Court\r\nobserved that the government is required to approach the presiding judge of the\r\ncourt to opine on the application for remission.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. In Sriharan (supra) a Constitution Bench of this Court held that the\r\nprocedure stipulated in Section 432(2) is mandatory. The Court did not\r\nspecifically hold that the opinion of the presiding judge would be binding, but it\r\nheld that the decision of the government on remission should be guided by the opinion of the presiding officer of the concerned court. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. There appears to be a difference of opinion between the High Courts on\r\nwhether the opinion of the presiding judge is binding on the government. The\r\nHigh Court of Judicature at Bombayhas held that the opinion of the presiding judge\r\n18 Yovehel v. State of Bombay, Crl. Writ Petition No 273 of 2019\r\n17\r\nis binding.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. However, this is not to say that the appropriate government should\r\nmechanically follow the opinion of the presiding judge. If the opinion of the\r\npresiding judge does not comply with the requirements of Section 432 (2) or if the\r\njudge does not consider the relevant factors for grant of remission that have been\r\nlaid down in Laxman Naskar v. Union of India (supra), the government may\r\nrequest the presiding judge to consider the matter afresh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. In the present case, there is nothing to indicate that the presiding judge\r\ntook into account the factors which have been laid down in Laxman Naskar v.\r\nUnion of India (supra). These factors include assessing</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) whether the offence\r\naffects the society at large;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">(</span><span style=\"font-size: 12pt;\">ii) the probability of the crime being repeated;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>(iii) the\r\npotential of the convict to commit crimes in future;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">(iv) if any fruitful purpose is\r\nbeing served by keeping the convict in prison; and (v) the socio-economic\r\ncondition of the convict’s family. In Laxman Naskar </span><span style=\"font-size: 12pt;\">v. State of West Bengal\r\n(supra) and State of Haryana v. Jagdish, this Court has reiterated that these\r\nfactors will be considered while deciding the application of a convict for premature release.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">23. In his opinion dated 21 July 2021 the Special Judge, Durg referred to the\r\ncrime for which the petitioner was convicted and simply stated that in view of the\r\nfacts and circumstances of the case it would not be appropriate to grant </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">remission. The opinion is in the teeth of the provisions of Section 432 (2) of the\r\nCrPC which require that the presiding judge’s opinion must be accompanied by\r\nreasons. Halsbury’s Laws of India (Administrative Law) notes that the\r\nrequirement to give reasons is satisfied if the concerned authority has provided\r\nrelevant reasons. Mechanical reasons are not considered adequate.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. Thus, an opinion accompanied by inadequate reasoning would not satisfy\r\nthe requirements of Section 432 (2) of the CrPC. Further, it will not serve the\r\npurpose for which the exercise under Section 432 (2) is to be undertaken, which\r\nis to enable the executive to make an informed decision taking into consideration\r\nall the relevant factors.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. In view of the above discussion, we hold that the petitioner’s application for\r\nremission should be re-considered. We direct the Special Judge, Durg to provide\r\nan opinion on the application afresh accompanied by adequate reasoning that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">takes into consideration all the relevant factors that govern the grant of remission\r\nas laid down in Laxman Naskar v. Union of India (supra). The Special Judge,\r\nDurg must provide his opinion within a month of the date of the receipt of this\r\norder. We further direct the State of Chhattisgarh to take a final decision on the\r\npetitioner’s application for remission afresh within a month of receiving the\r\nopinion of the Special Judge, Durg.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>26. The petition under Article 32 of the Constitution is allowed in the above\r\nterms.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b128b45106d82294188d108cbf007a6a.jpeg', '88281690ef1f267df602848a0408eda7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-27', 1, '', '', '2022-04-23 01:50:50', '2022-04-27 06:23:05');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1636, 'tmHbY39mYkvfhruD7Fz9PKlBg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Test. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Intel Corporation Vs Rakesh Jain and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CS (COMM) 39 of 2018 decided on 20 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Prathiba M. Singh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The present suit has been filed by the Plaintiff in 2005 seeking\r\npermanent injunction against infringement of trademark, as also reliefs for\r\npassing off, damages, etc. in respect of its trademark ‘CELERON’, against\r\nDefendant No.1 - Mr. Rakesh Jain, Director of Defendant No.2, Defendant\r\nNo.2 - Celeron Electronics Pvt. Ltd. and Defendant No.3 - B M\r\nElectrovision.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. In this matter, summons was issued vide order dated 1st December,\r\n2005 and issues were framed thereafter. Once the leading of evidence\r\ncommenced, the Plaintiff’s witness PW-1 first appeared on 21st January,\r\n2008. He was then partly cross-examined on 15th July, 2008 and since then,\r\ndespite repeated opportunities, the Defendants had not further crossexamined the Plaintiffs and had not filed their evidence. Therefore, vide\r\norder dated 2nd December, 2013, their opportunity to lead evidence was&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">closed. This matter has since been listed in the category of ‘Finals Matters’\r\nand none has appeared for the Defendants on the last two dates in 2018 and\r\nin March, 2022. Vide previous order dated 9th March, 2022, intimation was\r\nalso issued to ld. counsel for the Defendants. However, none appears for the\r\nDefendants even today. Accordingly, the Court has proceeded further.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. The Plaintiff is a company engaged worldwide in the business of\r\ndeveloping, manufacturing, and selling a variety of computing,\r\ncommunications and Internet-related software and services. The Plaintiff’s\r\ncustomers are stated to include individual consumers, businesses, schools,\r\nbusinesses, industrial manufacturers, government, military, etc. The Plaintiff\r\nintroduced the world’s first microprocessor in 1971 and in 1998, it is stated\r\nto have adopted the mark CELERON for a new range of microprocessors for\r\npersonal computers, etc. The word is stated to be a coined word, having no\r\ndictionary meaning. The Plaintiff is also stated to have popularized the said\r\nmark by way of extensive publicity in the 1990s. The said mark is also a\r\nregistered trademark in classes 9 and 16, registered in the year 1998, as also\r\nin various other countries in the world. The said registration is stated to be\r\nvalid and subsisting, and has been renewed till 2028.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>5. The case of the Plaintiff is that around August, 2004, they became\r\naware that the Defendants had commenced the use of the name Celeron\r\nElectronics Pvt. Ltd. trading in wire wound resistors, used as components in\r\nthe computer market. Defendant No.3 was found to be a sister concern and\r\nall the Defendants were found to be promoting business/activities under the\r\nname CELERON. After some communications sent to the Defendants to\r\nstop the use of the said mark were unsuccessful, the present suit was filed\r\nseeking permanent injunction.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Heard the ld. Counsel for the Plaintiff and perused the record. The\r\nPlaintiff has registered the trademark ‘CELERON’ in various classes and the\r\nsaid registration is still valid. The Plaintiff’s mark is also registered in\r\nvarious countries including Australia, Canada, Brazil, China, Denmark,\r\nItaly, Korea, UAE, USA, UK, etc. The Plaintiff has also received\r\nwidespread recognition for its range of microprocessors including\r\n‘CELERON’, in various magazines in India and abroad being Business\r\nWeek, Asiaweek, etc.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. A perusal of the documents placed on record by the Defendants, also\r\nshows that Defendant No.2- Company was incorporated by the name\r\nCeleron Electronics Private Limited on 20th March, 2002, in Delhi. The\r\nmain objects clause of its Memorandum of Association provides that the\r\ncompany carries on business in India as manufacturers, processors, sellers,\r\ndealers, etc. of all kinds of electronics/electrical goods, components, etc.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The\r\nDefendants have attempted to give some justification as to how they adopted\r\nthe mark CELERON.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Thereafter, the evidence has also been led by the Plaintiff. PW-1-Mr.\r\nRahul Sethi, constituted attorney of the Plaintiff, appeared and had also been\r\ncross-examined by the Defendants, between 2008 and 2012. Some relevant\r\nextracts from PW-1’s affidavit in evidence confirm that the said mark was\r\nadopted in 1998. He has also deposed as to the reputation of the said mark in\r\nIndia.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. The above extracts along with the documents on record, depicts that\r\nthe Defendant’s use of the term CELERON is much later than the Plaintiff’s.\r\nConsidering the priority and adoption of the mark ‘CELERON’ by the\r\nPlaintiff, internationally and in India as also the fact that the same is a\r\nregistered trademark, use of the same, as part of a corporate name would be\r\nviolative of the Plaintiff’s rights in terms of Section 29(5) of the Trade\r\nMarks Act, 1999. The injunction granted on 1st December, 2005 has also\r\nbeen operating for several years. The explanation given by the Defendant is\r\nalso not a plausible explanation and is hence rejected. Ld. counsel for the\r\nPlaintiff also submits that the name of the Defendant-company has itself\r\nbeen struck off by the RoC. He places reliance upon the Company Master\r\nData to support this submission, handed over in Court today. In this view of\r\nthe matter, this is a fit case for passing a decree of permanent injunction.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. Accordingly, the suit is decreed in terms of paragraphs 31(i) &amp; (ii) of\r\nthe plaint. The remaining reliefs are not pressed by the Plaintiff. Decree\r\nsheet be drawn up accordingly.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. All pending applications are disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '01e3a342b732eb0644cbc1d12748f302.png', '08d8d19a6c2081726a4e0bf0d755c391.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-26', 0, '', '', '2022-04-26 18:34:55', '2022-04-26 08:05:02'),
(1633, 'rAq0YPbYoWj7HBorAGwB0c2k0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Administrative Law. Note sheets and inter-department communications cannot be treated as the decisions of the Government or the competent authority. Rajastan High Court. ', '<p><b>M/s Mangalam Arts Vs State of Rajasthan and others.<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Civil Writ Petition 8082 of 2018 decided on 20 April 2022.<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice Ashok Kumar Gaur.</span></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2. The brief facts, as pleaded in the writ petition, are that the petitioner is a partnership firm, engaged in the activity of manufacturing and exporting handicrafts, wooden furniture and other items, having its manufacturing units at different locations such as Jaipur, Udaipur, Mirzapur (UP), Agra (UP) & Delhi, etc.</span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. The petitioner-firm in order to establish its new industrial unit in the new Industrial Area namely Prahaladpura situated at proposed Ring Road on the Southern side of Jaipur City applied for allotment of plot in pursuance of the public notice dated 13.12.2015 issued by the respondent-Corporation for different sizes. The petitioner-firm had applied for one plot of size of 10,000 Sq.Mtrs. against plot No.A/127 to A/130, as described in the writ petition.</span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. The petitioner-firm was found successful in the procedure of draw of lottery for allotment of plot No.A/127 and as such the petitioner-firm was allotted the said plot vide allotment letter dated 18.02.2016 and accordingly, the petitioner-firm deposited the required amount and lease agreement was also executed in favour of the petitioner-firm.</span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5. The petitioner-firm has pleaded that since it was planning to launch new industrial unit in the new Industrial Area, the petitioner-firm is said to have contacted the respondentCorporation for allotment of adjacent industrial plots on “first come first serve” basis, as per the policy of the respondentCorporation.</span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. The petitioner-firm has pleaded that a notice dated 20.05.2017 was issued in the Rajasthan Patrika (Hindi) dated 21.05.2017 and Hindustan Times (English) dated 21.05.2017 whereby three plots of 10,000 Sq.Mtrs. were offered for sale at the rate of Rs.6,000/- per Sq.Mtrs. on “first come first serve” basis and the application was to be submitted online and in case of offline option, the UTR number of payment through RTGS/NEFT was to be submitted within 48 hours.</span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. The petitioner-firm has pleaded that it applied for allotment of plots bearing No.A/128 & A/129 on “first come first serve” basis along with requisite documents and made the payment in bank account of the respondent-Corporation vide UTR number, as mentioned in the communication dated 22.05.2017 sent to the respondent-Corporation.</span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8. The petitioner-firm has pleaded that as per the priority maintained by the respondent-Corporation only two applicants namely Shri Krishna Sudershan Urja Private Limited and the petitioner-firm applied for industrial plot No.A/129 and the petitioner-firm had applied first with project cost of Rs.2146 Lakhs and similarly for the industrial plot No.A/128 only two persons had applied for allotment including the petitioner-firm and the application of the petitioner-firm was first as it was given application No.127 and the second applicant was having application No.128.</span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. The petitioner-firm has pleaded that for all purposes, priority of the petitioner-firm was first and all the formalities including payment of requisite amount and furnishing of all desired documents was made by the petitioner-firm, as per the terms and conditions. </span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">25. The primary question to be decided in the present writ petition is as whether the authorities have acted arbitrarily in taking the decision of cancelling the allotment process which was based on the method of “first come first serve”.</span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">26. This Court on careful scanning of the pleadings on record finds that initial process of allotment of plots was under taken by the respondent-RIICO by issuing an advertisement on 13.12.2015 where by a public notice was issued, wherein draw of lottery was the basis for allotment of plots and there were different sizes of plots available to be allotted to different applicants.</span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">27. This Court finds that the petitioner-firm was found successful in the draw of lottery for allotment of Plot No.A/127 and accordingly it was allotted the said plot and requisite formalities were completed. The subsequent issuance of advertisement in daily newspaper for allotment of plots on “first come first serve” basis was not a normal course which was adopted by the respondent-Corporation.</span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">28. This Court finds that the RIICO Rules though provides under Rule 5 that RIICO can dispose of the plots in the industrial area either by public auction or by entertaining the individual applications, however, the allotment of plots without having element of public auction by large number of applications has not been approved time and again by the Apex Court.</span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">29. This Court finds that in the case of Centre for Public Interest Litigation & Ors. Vs. UOI & Ors. reported in (2012) 3 SCC 1 the Apex Court has laid down that for disposing of the public properties, the State should adopt the method of public auction as it has more transparency and brings more revenue to the authority. The sale of plots by inviting individual applications or on the basis of first come first serve leave room, where authorities may use their discretion by not keeping in mind the best interest of the Corporation.</span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">30. This Court finds that various notesheets, on which reliance is placed by the petitioner-firm to build its case by terming the action of the respondent-Corporation as arbitrary, suffice it to say by this Court that the various notesheets/internal departmental communications, cannot be treated as decision of the State/RIICO. The expression of opinion by an Officer or a particular individual is a noting simplicitor but the said noting cannot be treated as a decision of the competent authority.</span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">31. The submission of counsel for the petitioner that at one point of time the authorities had taken a decision to allot plots on the basis of “first come first serve” as the industrial area was not fully developed and many people were not interested in taking plots in the said industrial area, suffice it to say by this Court that the said expressions by certain officials, will not ultimately result into creating any right in favour of the petitioner-firm.</span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">32. The Apex Court in the case of State of Punjab & Ors. Vs. Mehar Din (supra) has dealt with the right of the highest bidder in the auction proceedings and has found that until the decision is totally arbitrary or unreasonable, the High Court should not sit like a court of appeal and it is the competent authority who floats the tender, who is the best judge of its requirement. </span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">33. The Apex Court in the case of Municipal Committee, Barwala, District Hisar Haryana through its Secretary/President Vs. Jai Narayan & Co. & Anr. (supra) has again reiterated the principle that there is no vested right of the highest bidder, who participates in the public auction, to have the auction proceedings concluded in his favour.</span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">34. The submission of counsel for the petitioner-firm that reasons assigned for cancelling the allotment were non-existent as there was neither any ambiguity in the advertisement nor any irregularity in depositing the money, this Court finds that the initial consideration with the authorities might have been the so-called irregularities, however, if the competent authority had taken the decision that “first come first serve” method of awarding plots was not required to be continued and public auction was better method, no arbitrariness can be attached to the said decision.</span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">35. The submission of counsel for the petitioner-firm that the Apex Court in the case of Food Corporation of India Vs. M/s.Kamdhenu Cattle Feed Industries (supra) has considered the legitimate expectation and scope of Article 14 of the Constitution of India and as such, this Court is called upon to declare the action of the respondent-Corporation as arbitrary, this Court finds that the Apex Court has held that reasonable or legitimate expectation may not be itself a distinct enforceable right but failure to consider and give due weightage to it may render the decision arbitrary and whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case and whenever the question arises, it is to be determined not according to the claimant’s perception but in larger public interest, wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bonafide decision of the public authority reached in such manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny.</span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">36. This Court, considering the facts of the present case and in view of the decision taken by the respondent-Corporation in the year 2018 and again in the year 2021, finds that allotment of industrial plots on “first come first serve” basis is not approved in the interest of the respondent-Corporation and as such, the decision cannot be termed arbitrary.</span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">37. Reliance is placed by counsel for the petitioner-firm on the judgment of the Apex Court in the case of State of Punjab Vs. Bandeep Singh & Ors. (supra). The Apex Court, in background of facts of that case, found that since the writ petitioners had deposited the earnest money and deposited more than 25% of the sale consideration and also tendered the entire remainder, as such, the writ petitioners were permitted to pay the prevailing circle rate. According to this Court, the said judgment is of little assistance to the counsel for the petitioner-firm.</span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">38. This Court finds that merely by depositing amount unilaterally by the petitioner-firm, in absence of any allotment letter, would not create any right to claim allotment in its favour.</span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">39. This Court finds that the Division Bench of this Court in the case of RIICO Vs. M/s.Genus Innovation Limited & Another [D.B.Special Appeal Writ No.1555/2008] had also considered the scope of Rule 5 and Rule 27 of the RIICO Rules.</span><br></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">40. This Court accordingly finds that the respondent-Corporation has not acted arbitrarily or illegally in any manner while issuing the order dated 07.07.2017 cancelling the allotment process.</span><br></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>41. Accordingly, the writ petition is dismissed and the interim order passed by this Court dated 16.04.2018 stands vacated. No costs.</b></span><br></p>', 'd713e191f5ee1715cf1c479a1ab6bd3a.jpg', 'b9a7f44d997ce5fc3a056b46ecabfd5b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-27', 1, '', '', '2022-04-26 17:03:26', '2022-04-27 10:54:21'),
(1634, 'H9QrmEcsmSJfV3eiX5RSg1HiL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Attachment order under Section 146 can not be passed on a mere apprehension of breach of peace. Chhattisgarh High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Tameshwar Sahu and others VS Shrimati Durpati Bai and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRMP 29 of 2022 decided on 12 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Goutham Bhaduri.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Brief facts of this case are that the petitioner No.1 is claiming\r\nhimself as bhumiswami of land bearing khasra No.206/54\r\narea 0.162 hectares and khasra No.206/58 area 0.186\r\nhectares, total area admeasuring 0.348 hectares. Likewise,\r\nthe petitioners No.2 & 3 are also claiming themselves as\r\nbhumiswami of land bearing khasra No.273/14 area 1.618\r\nhectares. With regard to their respective claim, the\r\npetitioners rely on Form B-1 kistband katoni [year 2019-20]\r\n{Annexure-P/1).\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. To consider the said claim of the petitioners, the SDM vide its\r\nmemo dated 20-10-2021 (Annexure-P/3) directed the\r\nTahsildar-cum-Executive Magistrate, Palari and Station\r\nHouse Officer, Police Station Gidhpuri to submit the enquiry\r\nreport. In compliance of the same, it was reported that prior\r\nto two months of incident the petitioners were in possession\r\nof the subject land. In the meanwhile, the petitioner\r\nTameshwar Sahu filed a civil suit bearing No.54-A/2021 and\r\nthe petitioners Maniram & Nemichand filed a civil suit\r\nbearing No.55-A/2021 for declaration of title against the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respondents. In the said suits, status quo order was passed on\r\n14-12-2021 (Annexure-P/4). Subsequently, on 12-11-2021\r\n(Annexure-P/5) the SDM has passed the order that since there\r\nis a dispute with respect to possession and chance of breach\r\nof peace, the crop/paddy was directed to be kept under the\r\ncustody of Kotwar.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. Learned counsel for the petitioners would submit that only on\r\napprehension of breach of peace, the order under Section\r\n146(1) Cr.P.C. cannot be passed. There has to be substantial\r\nmaterial on record and the Court below failed to appreciate\r\nthe fact that there was no material on record to show that\r\nwhether there was any emergency exist or not. Thus, the\r\nimpugned orders deserve to be set aside.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>5. On the other hand, learned counsel for the respondents No.1\r\n& 2 while supporting the impugned orders would submit that\r\nthe land on which the claim is made by the petitioners is, in\r\nfact, the Government land and hence the petitioners are not\r\nentitled to any relief. </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The order of learned SDM dated 12-11-2021 records that\r\nsince the petition under Section 145 (1) is pending and\r\nwithout there being any enquiry, no finding can be arrived as\r\nto who had sow the crop, as such, since it may lead to\r\ndispute, crop of the subject land would be seized. The\r\nrevisional Court affirmed the said order.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. With respect to prima facie ownership of the land the\r\npetitioners filed revenue document i.e. Form B-1 kistband\r\nkatoni [year 2019-20] {Annexure-P/1), which records the\r\nname of the petitioners. To ascertain the possession over the\r\nsubject land prior to dispute pursuant to memo dated 20-10-\r\n2021 (Annexure-P/3) of the SDM, the enquiry report was\r\nsubmitted on 26-10-2021. Bare reading of the same would\r\nmanifest that prior to two months of the dispute the subject\r\nlands were in possession of the petitioners. The same fact also\r\nfinds support from the order dated 14-12-2021 passed by the\r\nCivil Judge Class-II, Balodabazar, in a civil suit\r\nNos.54-A/2021 & 55-A/2021 wherein it has been observed\r\nthat prior to report dated 26-10-2021 the petitioners were in\r\npossession of the subject land. Now coming to the order\r\ndated 12-11-2021 it shows that the SDM has observed that\r\nsince the detailed enquiry is required, therefore, at this\r\njuncture, the ownership cannot be decided. The order of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">SDM further records that since the ownership and the crop\r\nover the said land may lead to dispute as such there are\r\nchances of breach of peace, therefore, the crop be\r\nattached.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Applying the aforesaid principle to the facts of the present\r\ncase, it shows that under Section 146, a Magistrate has to\r\nsatisfy himself as to whether any ‘emergency exists’ before\r\nhe passes an order of attachment. In a case of emergency, as\r\ncontemplated under Section 146 of the Code, has to be\r\ndistinguished from a mere plea of apprehension of breach of\r\nthe peace. The Magistrate, before passing an order under\r\nSection 146, must explain the circumstances why he thinks it\r\nto be a case of emergency and further observed that there\r\nmust be a material on record before Magistrate when the\r\nsubmission of the parties filed, documents produced or\r\nevidence adduced.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Reading of impugned order shows that only on apprehension\r\nof a breach of peace, the order dated 12-11-2021 has been\r\npassed by the SDM whereby crops have been attached. Even\r\nthe revisional Court also failed to appreciate the necessary\r\ningredients in its true perspective, as has been stated supra.\r\nAccordingly, both the orders dated 12-11-2021 (AnnexureP/5) and 21-12-2021 (Annexure-P/6) are quashed</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2e498f9b0e4daf61d8f81d03d9d243c3.jpeg', '83cedfa03de0309ce0fcbbde046391b4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-29', 1, '', '', '2022-04-26 17:55:53', '2022-04-29 20:09:45');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1635, '3A29Rtrx02O7HpM5nDICLhGwb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Labour law. When model standing orders are amended to enhance retirement age, trade unions can seek modification of the certified standing orders to bring them in conformity with the model standing orders. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Management of Hindalco Industries Ltd Vs General Secretary Indal Employees Union and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 11976 of 2020 decided on 21 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"font-family: Calibri, sans-serif; font-size: 12pt;\"> <o:p></o:p></span><font face=\"Calibri, sans-serif\">2. On 13.04.1971, the Indian Aluminium Company Limited, Belgaum works Standing Orders (for short “the Standing Orders”) were certified as required under S. 5 of the Industrial Employment (Standing Orders) Act, 1946 (for short “the Act, 1946”). </font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. The Indian Aluminium Company merged with Hindalco Industries i.e., the present petitioner and as a consequence, the standing orders certified on 13.04.1971 became applicable to the petitioner and its workmen. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. The Petitioner and its Unions, over a period of time, had entered into Long-Term Settlements which would be valid for a specified time. As of 2016, the petitioner had entered into 14 settlements with the trade unions, each of which were in subsistence for an agreed period. These settlements were entered into to prevent the occurrence of a possible industrial dispute between the Management and the Unions and ensure there was industrial peace. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. In keeping with this practice of entering into another Long-Term Settlement i.e., the XV settlement, negotiations commenced with respondent Nos. 1 to 3, the recognized trade unions. A charter of demands was submitted by the respondent Nos.1 and 2 to the petitioner on 06.10.2016 and by respondent No.3 on 01.12.2016. In these charter of demands, amongst several other demands, one of the demands made by the Unions was that the age of superannuation which had been fixed at 58 years in Clause 26 of the certified standing orders should be enhanced to 60 years. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. The Management also submitted their proposals to the Unions on 02.01.2017 and thereafter discussions were held between the petitioners and the Unions ultimately all of them approached the Deputy Labour Commissioner to join in on the discussion and the matter was admitted into conciliation by notice dated 14.09.2017. A proceeding came to be held on 20.09.2017, on which day, the terms of understanding were finalized and the XV settlement was thus arrived at. The settlement was reduced in the form of a memorandum and was also signed by the petitioner and the three Unions. The memorandum containing the terms of the settlement were set forth by way of 17 Articles. The Memorandum of Settlement also indicated that it had been entered into under S. 18(3) read with S. 12 (3) of the ID Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. Even as these charter of demands were being deliberated upon by the petitioner and the Unions, on 27.03.2017, the State of Karnataka, in the exercise of its powers conferred under S. 15 of the Act, 1946 amended the two model standing orders that it had set out in Schedule I to the Karnataka Employment (Standing Orders) Rules. These model standing orders related to “Workmen excluding clerks and other Ministerial staff” and to “Clerks and other Ministerial staff”. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. By this amendment to the model standing orders, the age of retirement prescribed as 58 years in the model standing orders was substituted as 60 years for both “Workmen” and also for “Clerks and Ministerial staff”. Thus, the model standing orders prescribed by the Act in respect of the State of Karnataka, the age of retirement became 60 years instead of 58 years. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. It is to be stated here that though a demand had been made for enhancement of the retirement age in the charter of demands, the settlement was, admittedly, silent in respect of the demand that had been made for enhancing the retirement age from 58 years to 60 years. It was not even stated in the settlement as to whether the said demand had been considered or deliberated upon, let alone, state whether it had been granted or refused.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>82. Learned counsel also sought to place reliance on Clause 72 to state that any demand, which would result in a financial or a non-financial benefit would not be made till the subsistence of the period of settlement. He submitted that since the enhancement of the retirement age was undoubtedly a financial benefit, the workmen were estopped from making the said claim till the period of the settlement. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>83. As could be seen from Clause 72, the said clause is also a general clause, which deals specifically with a demand for any further increase in wages or salary, allowances, bonus, or any other financial or non-financial benefits. A reading of the entire clause indicates that it can only be in relation to any financial emoluments that the workmen could claim during their employment. This obviously cannot preclude the workmen from seeking for enhancing their retirement age by recourse to the modification of the standing orders provided in the Act. The petitioner cannot utilize the general clause, which only clarifies that any issue which has been settled cannot be revived till the expiry of the period of settlement, in order to contend that the trade unions had agreed not to seek for enhancement of the retirement age. The argument of the learned counsel, if accepted, would fundamentally amount to re-writing the entire clause completely out of context. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>84. Learned counsel Shri Pradeep Sahukar placed great emphasis on the judgment rendered by the Hon’ble Supreme Court in Barauni Refinery Pragatisheel Shramik Parishad (Supra).In that case, the Hon’ble Supreme Court was dealing with a case in which the certified standing orders had been modified contrary to the terms of the settlement.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>85. As could be seen from the above, the settlement with which the Hon’ble Supreme Court was dealing with, the employer had agreed that the terms and conditions of service as well as the amenities and allowances would not be changed and would be in operation during the period of settlement. Further and more importantly, the Unions therein had also agreed that during the period of operation, they would not raise any demand which imposed a financial burden on the Corporation, except for the issue of bonus provided. Thus, a conjoint reading of Clause 19 and 21, makes it clear that in that case, the Hon’ble Supreme Court was dealing with a settlement in which the employer had clearly agreed that he would not change the terms and conditions of the service and the workmen had also categorically agreed that they would not raise any demand, which had a financial burden on the employer.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>87. A mere comparison of these two clauses would indicate the stark and glaring differences in the settlement that has been arrived at in this case and the settlement that had been arrived in Barauni Refinery PragatisheelShramikParishad case (Supra). In the settlement clauses involved in the Barauni Refinery PragatisheelShramikParishad (Supra) case, there was an agreement that the terms and conditions of the service would remain unchanged and the Union had also agreed that they would not raise any demand, which had a financial burden on the employer. The term financial burden on the employer obviously indicates any demand, which had a financial consequence on the employer. However, in the instant case, the clauses upon which great reliance is placed does not contain any such commitment or undertaking by the workmen that they would not claim or make any demand which would have a financial burden on the employer. What has been agreed in Clause 72 is that there would be no demand for any further increase in the wages/salary/allowance or bonus or any other financial or non-financial benefits. This kind of an undertaking in respect of financial emoluments that the workmen would derive because of the work being extracted from him cannot be extended to bring within its ambit the right of the workmen to seek for modification of the standing orders relating to enhancement of the retirement age. It is therefore clear that the said decision can have no application to this case.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>91. In Ultra Tech’s case, this Court was considering what was the effect of the model standing orders and the effect of a model standing orders on a settlement that had been incorporated into the standing orders. Admittedly, in the instant case, there was in existence certified standing orders and thus the question of the application of model standing orders being made applicable would not arise. Furthermore, in that case, a settlement arrived at had been incorporated into the standing orders which was sought to be modified on the basis of the model standing orders. In the instant case, it is not the case of either party that the model standing orders would automatically apply. Further, it is also not a case where the parties had incorporated the terms of a settlement into the standing orders which were agreed to be in force for a specified period of time and these standing orders were sought to be modified by virtue of the model standing orders. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>92. It is to be stated here that under S. 12A of the Act, the model standing orders would be applicable temporarily from the date the act becomes applicable to the establishment and would apply only till the standing orders are certified or adopted. Thus, in law, the model standing orders would not by themselves become applicable to an industrial establishment and they would apply only when the standing orders were yet to be certified or adopted.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 93. It should, however, be borne in mind that the draft standing orders submitted for certification or that were discussed with the trade unions for adoption are required to be in conformity with the prescribed model standing orders to the extent practicable as stipulated in S. 3 of the Act. Thus, there is no escape from the fact that the law intends that the certified standing orders should be in conformity with the prescribed Model standing orders. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>94. In the present case, the trade unions have sought modifications of the standing orders based on the amendment to the model standing orders. The basic objection to this modification by the employer before the certifying authority was that the trade unions were not entitled to seek for modification in view of the settlement. As already held above, entering into a settlement by itself would not debar the trade unions from seeking modifications. Further in this case there was no express agreement/clause in the settlement that the trade union had agreed for the retention of the retirement age as 58 years. Thus, the argument that the trade unions could not seek for modifications to the standing orders cannot be accepted. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>95. It should however be clarified that, if there is indeed a settlement in respect of a particular term of employment, an employer could contend before the certifying authority that in view of the specific terms of the settlement, the standing orders should not be modified for a specified period. In such a situation, the certifying authority would not be entitled to ignore the settlement and order for modification. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>96. It is to be stated here that the employer, before the certifying authority, did not object to the modification relating to the enhancement of the retirement age on the ground that the continuance of an employee beyond 58 years was not desirable given the nature of the industrial activity being undertaken in the establishment. As already stated above, under normal circumstances, the standing orders would necessarily have to be in conformity with the prescribed model standing orders to the extent that they are practicable when certification is sought for.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>97. Thus, when the model standing orders were amended and the retirement age was enhanced, it was open for the trade unions to seek a modification of the certified standing orders to bring them in conformity with the model standing orders. As the employer did not cite any specific objection for the enhancement of the retirement age on the ground of undesirability or on account of safety standards, the certifying authority was justified in modifying the standing orders by noticing that the retirement age had been increased in all spheres of employment and there was no extraordinary reason for rejecting the modification. In my view, the certifying authority was absolutely justified in accepting the trade union’s application for modification of the standing orders. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>98. The appellate authority has noticed that the certifying authority had afforded an opportunity of hearing to the employer to the proposed modifications and it has also been categorically stated that the employer had no specific objection to the enhanced retirement age and it was only raising legal objections and the certifying authority was therefore justified in granting the modification. The appellate authority has noticed that the certifying authority after taking note of the enhancement of retirement age all across the country had merely followed the norms that had been followed all around the country in accepting the modifications to the standing orders. In my view, the appellate authority was absolutely justified in affirming the decision of the certifying authority granting modification to the standing orders. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>99. There are no justifiable grounds to interfere with the impugned orders in the exercise of the writ jurisdiction of this Court and hence the petition is dismissed.</b></font></p>', '8369ee58bdc37dc474f329fc89fb680e.jpeg', '8d7a0043d62dbeefa8d0cbeccc66bbe6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-29', 1, '', '', '2022-04-26 18:16:26', '2022-04-29 05:13:25'),
(1637, 'gknQhDUja1ODISaZUtT6BNJQE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Anganwadi workers and helpers appointed under the Integrated Child Development Scheme are entitled to gratuity under the Payment of Gratuity Act, 1972. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Maniben Maganbhai Bhariya Vs District Development Officer Dahod and others.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Civil Appeal 3153 of 2022 decided on 25 April 2022.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Justice Ajay Rastogi and Justice Abhay S. Oka.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b style=\"background-color: rgb(255, 255, 0);\">Justice Ajay Rastogi&nbsp;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. I&nbsp; &nbsp;have&nbsp; &nbsp;had&nbsp; &nbsp;the&nbsp; &nbsp;advantage&nbsp; &nbsp;of&nbsp; &nbsp;going&nbsp; &nbsp;through&nbsp; &nbsp;the&nbsp; &nbsp;judgment penned by my brother Abhay S. Oka, J.&nbsp; &nbsp;I entirely agree with the conclusions which my erudite Brother has drawn, based on the remarkable process&nbsp; of reasoning.&nbsp; &nbsp;I&nbsp; wish&nbsp; to add&nbsp; few&nbsp; lines and express my views not because the judgment requires any further elaboration but looking for the question of law that emerged of considerable importance.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The&nbsp; &nbsp;moot&nbsp; &nbsp;question&nbsp; &nbsp;which&nbsp; &nbsp;has&nbsp; &nbsp;been&nbsp; &nbsp;raised&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;instant appeals for our consideration indeed is a question which may not only determine the rights of the contesting appellants working as Anganwadi workers/helpers who are discharging a pivotal role in the society at the grassroot level and are the role model of the ICDS 2 scheme which is one of the extended arm of the Ministry of Women and&nbsp; &nbsp;Child&nbsp; &nbsp;Development,&nbsp; &nbsp;at&nbsp; &nbsp;the&nbsp; &nbsp;given&nbsp; &nbsp;time,&nbsp; &nbsp;it&nbsp; &nbsp;may&nbsp; &nbsp;also&nbsp; give&nbsp; &nbsp;a thought process to the Legislature to consider as to whether the applicability&nbsp; &nbsp;of&nbsp; &nbsp;gratuity&nbsp; &nbsp;being&nbsp; &nbsp;a&nbsp; &nbsp;social&nbsp; &nbsp;security&nbsp; &nbsp;measure,&nbsp; &nbsp;be extended to the employees who served the establishment in an organized&nbsp; &nbsp;or&nbsp; &nbsp;unorganized&nbsp; &nbsp;sector&nbsp; &nbsp;and,&nbsp; &nbsp;in&nbsp; &nbsp;one&nbsp; &nbsp;way&nbsp; &nbsp;or&nbsp; &nbsp;the&nbsp; &nbsp;other, contributing in the sustainable development of the nation.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>53. In my considered view, the appeals deserve to succeed and are accordingly allowed and the impugned judgment dated 8th August, 2017&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Division&nbsp; &nbsp;Bench&nbsp; &nbsp;of&nbsp; &nbsp;Gujarat&nbsp; &nbsp;High&nbsp; &nbsp;Court&nbsp; &nbsp;being unsustainable in law is hereby set aside.&nbsp;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>52. Before parting with the order, I would like to observe that the time has come when the Central Government/State Governments has to collectively consider as to whether looking to the nature of work and exponential increase in the Anganwadi centers and to ensure&nbsp; &nbsp;quality&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;delivery&nbsp; &nbsp;of&nbsp; &nbsp;services&nbsp; &nbsp;and&nbsp; &nbsp;community participation&nbsp; &nbsp;and&nbsp; &nbsp;calling&nbsp; &nbsp;upon&nbsp; &nbsp;Anganwadi&nbsp; &nbsp;workers/helpers&nbsp; &nbsp;to perform multiple tasks ranging from delivery of vital services to the effective&nbsp; &nbsp;convergence&nbsp; &nbsp;of&nbsp; &nbsp;various&nbsp; &nbsp;sectoral&nbsp; &nbsp;services,&nbsp; &nbsp;the&nbsp; &nbsp;existing working&nbsp; &nbsp;conditions&nbsp; &nbsp;of&nbsp; &nbsp;Anganwadi&nbsp; &nbsp;workers/helpers&nbsp; &nbsp;coupled&nbsp; &nbsp;with lack of job security which albeit results in lack of motivation to 30 serve in disadvantaged areas with limited sensitivity towards the delivery of services to such underprivileged groups, still being the backbone of the scheme introduced by ICDS, time has come to find out modalities in providing better service conditions of the voiceless commensurate to the nature of job discharged by them.&nbsp;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b style=\"background-color: rgb(255, 255, 0);\">Justice Abhay S. Oka.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. The&nbsp; &nbsp;issue&nbsp; &nbsp;involved&nbsp; &nbsp;in&nbsp; &nbsp;these&nbsp; &nbsp;appeals&nbsp; &nbsp;is&nbsp; &nbsp;whether Anganwadi workers and Anganwadi helpers appointed to work in&nbsp; &nbsp;Anganwadi&nbsp; &nbsp;centres&nbsp; &nbsp;set&nbsp; &nbsp;up&nbsp; &nbsp;under&nbsp; &nbsp;the&nbsp; &nbsp;Integrated&nbsp; &nbsp;Child Development Scheme (for short “ICDS”) are entitled to gratuity under the Payment of Gratuity Act, 1972</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>31. For the reasons recorded above, I have no manner of doubt that the 1972 Act will apply to Anganwadi centres and in turn to AWWs and AWHs. In the impugned Judgment, the Division Bench was swayed by the view taken by this Court in the case of Ameerbi which was followed by the Delhi High Court in the case of&nbsp; Akhil Bhartiya&nbsp; &nbsp;Anganwadi&nbsp; &nbsp;Kamgar&nbsp; &nbsp;Union&nbsp; &nbsp;(Regd.)&nbsp; (supra).&nbsp; &nbsp;These decisions, for the reasons recorded earlier, have no bearing on the issue involved in these appeals.&nbsp; The learned Single Judge was right in holding that the 1972 Act was applicable to AWWs and AWHs. The Controlling Authority has granted simple interest at the rate of 10% on the overdue gratuity amounts.&nbsp; All eligible AWWs and AWHs shall be entitled to the benefit of interest.&nbsp;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>32. Hence,&nbsp; &nbsp;I&nbsp; &nbsp;allow&nbsp; &nbsp;the&nbsp; &nbsp;appeals&nbsp; &nbsp;and&nbsp; &nbsp;set&nbsp; &nbsp;aside&nbsp; &nbsp;the&nbsp; &nbsp;impugned Judgment dated 8th August 2017 of the Division Bench of Gujarat High Court and restore the Judgment of the learned Single Judge dated 6th June 2016 in Special Civil Application no. 1219 of 2016&nbsp; and other connected cases by holding that the provisions of the 1972 Act apply to AWWs and AWHs working in Anganwadi centres. Within a period of three months from today, necessary steps shall be taken by the concerned authorities in the State of Gujarat under the 1972 Act to extend benefits of the said Act to the eligible AWWs and AWHs.&nbsp; &nbsp;We direct that all eligible AWWs and AWHs shall be entitled to simple interest @ 10% per annum from the date specified under sub­section 3A of Section 7 of the 1972 Act.&nbsp;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e5226a19d7a276cc122d80e934efcb14.jpeg', 'bcd894cc8194c2efb22dfa36252c4bd5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-28', 1, '', '', '2022-04-26 18:42:24', '2022-04-28 12:59:10');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1638, '7VfWW105YkjBjXnitJq6VYtub', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019. Summary rejection of declaration without affording any opportunity of hearing to the declarant would be in violation of the principles of natural justice. Madras High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Violet Event Marketing India Private Limited Vs Union of India and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 26035 of 2019 decided on 12 April 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Ujjal Bhuyan and Justice A. Venkateshwara Reddy.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of intimation dated 27.09.2019 of the third respondent and further seeks a direction to the respondents to consider the declaration of the petitioner as a valid declaration under the category of ‘voluntary disclosure’ in terms of the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. Case of the petitioner is that it is engaged in the business of providing event management services to its clients. It had obtained service tax registration under the Finance Act, 1994 since its incorporation in the year 2009. It is stated that since its inception, petitioner was filing service tax returns and paying the due service tax.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">4. However, because of financial problems, petitioner could not pay service tax for the period from April, 2016 to June, 2017. The total amount of service tax dues to be paid by the petitioner for the aforesaid period is Rs.1,72,93,758.00</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">5.  While presenting the budget for the year 2019-2020, Government of India, Ministry of Finance introduced a scheme called Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019. Subsequently, Central Government also notified the Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019 to operationalize the scheme from 01.09.2019 to 31.12.2019.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">6. It is stated that Sabka Vishwas (Legacy Dispute Resolution) Scheme has facility for voluntary disclosure of tax dues. In such a case, the declarant has to pay the full tax declared but is not required to pay interest and penalty, besides being provided immunity from prosecution.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">7.  Petitioner filed declaration in the prescribed format online on 13.09.2019 under the category of ‘voluntary disclosure’ declaring service tax dues of Rs.1,72,93,758-00 for the period from April, 2016 to June, 2017. As per the procedure laid down the designated committee i.e. respondent No.4 chaired by respondent No.3 considered  <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the declaration filed by the petitioner. However, vide the intimation dated 27.09.2019, declaration filed by the petitioner was rejected.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">8. It is stated that petitioner was not subjected to enquiry / investigation till announcement of the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 on 05.07.2019. Petitioner was issued a letter on 23.07.2019 by the Superintendent (Anti-evasion) for verification of payment of service tax for the financial year 2014-15. It was not an investigation; certainly not for the period from April, 2016 to June, 2017. Subsequently, summons dated 11.09.2019 were issued to the petitioner for an enquiry for non-payment of service tax which was served upon the petitioner on 16.09.2019.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. According to the petitioner, the letter dated 23.07.2019 and summons dated 11.09.2019 were issued only to deny the benefit of voluntary disclosure under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019. Contending that petitioner is eligible under the aforesaid scheme, not falling within the exclusion category, intimation dated 27.09.2019 of the third respondent has been assailed in the present writ proceeding on various grounds.</span><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">37. It is stated that the declaration of the petitioner was scrutinized by the designated committee to determine eligibility. Reference has been made to Section 125 (1) (f) of the Finance (No.2) Act, 2019 wherefrom it is stated that a person making voluntary disclosure under the Act after being subjected to any enquiry or investigation or audit or having filed the return under the indirect tax enactment wherein he has indicated an amount of duty as payable but has not paid it, shall not be entitled to make such declaration. It is stated that designated committee had examined report of Anti-evasion Branch dated 23.07.2019 and found that departmental investigation into evasion of tax by the petitioner had been initiated on 23.07.2019. In this connection summons dated 11.09.2019 was issued under Section 70 of the Central Goods and Services Tax Act, 2017. According to the designated committee, the declaration was filed by the petitioner subsequent to the date of initiation of such investigation by the department. Accordingly, designated committee found that provisions of Section 125 (1) (f) would be attracted thereby making the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner ineligible under the scheme. Therefore, designated committee decided to reject the declaration of the petitioner.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">38. From the impugned intimation dated 27.09.2019 what is discernible is that petitioner had filed declaration under the category of ‘voluntary disclosure’. But invoking the provisions of Section 125 (1) (f), designated committee declared the petitioner to be ineligible under the scheme and therefore rejected the declaration. However, interestingly in the intimation dated 27.09.2019 there is no mention or reference to the time period in respect of which the voluntary disclosure was made.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">39. As we have already seen, Section 125 of the Finance (No.2) Act, 2019, deals with eligibility to make a declaration under the scheme. Sub-Section (1) is couched in broad and positive language. It says that all persons are eligible to make a declaration under the scheme except those covered by the situations from (a) to (h). Though in the impugned intimation it is stated that declaration of the petitioner was rejected under Section 125 (1) (f), Mr. B.Narasimha Sarma, learned counsel for the respondents tried to justify the same by referring to the provisions of Section 125 (1) (e) as well.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">40. Let us deal with both the provisions. Section 125 (1) (e) says that a person who has been subjected to an enquiry or investigation of audit and the amount of duty involved in the said enquiry or investigation or audit has not been quantified on or before 30.06.2019 shall not be eligible. First and foremost, this is the provision which would be attracted when a declarant makes a declaration under the category ‘investigation / enquiry / audit’ and therefore would not be applicable to a declarant making a declaration under the category ‘voluntary disclosure’. Nonetheless, if we minutely analyse the provision of Section 125 (1) (e), we find that it has got two parts. As per the first part, the person making a declaration should be subjected to an enquiry or investigation or audit. In other words, at the time of making the declaration the declarant must be facing an enquiry or investigation or audit. The second part is, the amount of duty involved in the said enquiry or investigation or audit has not been quantified on or before 30.06.2019. Therefore, the second part says that the amount of duty relatable to such enquiry or investigation or audit being faced by the declarant at the time of making declaration had not been quantified on or before 30.06.2019. These two parts are joined by the word ‘and’. The word ‘and’ appearing in Section 125 (1) (e) is conjunctive inasmuch as it joins the two parts of the said provision. As a consequence, the provision has to be read in continuum i.e. as a whole. Read so, it would mean that at the time of filing the declaration, the declarant must be subjected to an enquiry or investigation or audit <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and the amount of duty involved in the said enquiry or investigation or audit had not been quantified on or before 30.06.2019. In other words, the enquiry or investigation or audit should be pending as on 30.06.2019.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">41. Insofar Section 125 (1) (f) is concerned, a person would be ineligible to make a declaration in terms of the scheme under the category ‘voluntary disclosure’ after being subjected to an enquiry or investigation or audit; or having filed the return under the indirect tax enactment wherein he has indicated an amount of duty as payable but has not paid it. Thus, Section 125 (1) (f) also has two parts. As per the first part, the declarant should not be subjected to any enquiry or investigation or audit at the time of making the declaration under the category ‘voluntary disclosure’. The second part is that if a person had filed the return under the concerned indirect tax enactment wherein he has indicated an amount of duty as payable but has not paid it. Then he would not be eligible to make a declaration under the category of ‘voluntary disclosure’. Thus, the two parts visualize two different situations. One is being subjected to any enquiry or investigation or audit at the time of making the declaration under the category of ‘voluntary disclosure’. The other is that the person had filed the return under the relevant indirect tax enactment wherein he has mentioned the amount of duty as payable but has not paid it. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Evidently, the two situations are different and therefore the word ‘or’ has been used as a disjunctive.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">42. There is one more aspect. If we look at Section 129, we find that once a discharge certificate is issued under the scheme, the same shall be conclusive as to the matter and time period stated therein. In other words, for the said time period the declarant would not be liable to pay further duty, interest or penalty or liable to be prosecuted. That apart, no matter and time period covered by the declaration shall be reopened. Therefore, the time period mentioned in the discharge certificate which is relatable to the time period mentioned in the declaration assumes significance and becomes very crucial. Therefore, the enquiry or investigation or audit referred to in Section 125 (1) (e) and Section 125 (1) (f) must relate to the time period mentioned in the declaration and should be pending as on 30.06.2019. If the enquiry or investigation or audit does not relate to the time period as mentioned in the declaration, that cannot act as an ineligibility for the declarant.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">43. Petitioner had filed the declaration under the category of ‘voluntary disclosure’ on 13.09.2019 for the period 01.04.2016 to 31.03.2017. As on the relevant date i.e. 30.06.2019, petitioner was not facing any enquiry or investigation or audit for the said period. Petitioner was, for the first time, asked by the Superintendent (Anti- </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">evasion) vide letter dated 23.07.2019 to submit the information mentioned therein for the purpose of verification for the financial year 2014-2015. As mentioned in the impugned intimation, the said letter was issued following receipt of report on 23.07.2019 from the Antievasion Headquarters. However, in the summons dated 11.09.2019 the period of enquiry is not mentioned. In the subject it is mentioned that the summons pertain to certain enquiry for non-payment of service tax. The summons being so vague would have to be read together with the letter dated 23.07.2019. On a conjoint reading of the two it would mean that the verification pertains to the period 2014- 2015. Therefore, on due consideration, it cannot be said that petitioner was subjected to any enquiry or investigation or audit as on 30.06.2019 and pertaining to the period covered by the declaration at the time of making the declaration.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">44. Interestingly, if we minutely look at the provisions of the scheme, we find that in the case of a declaration under the category ‘voluntary disclosure’ no relief is available to the declarant with respect to the tax dues for the period for which the declaration is made. However, such a declarant shall not be liable to pay interest or liable to be prosecuted under the concerned indirect tax enactment with respect to the matter and time period covered in the declaration. In fact, in a case of voluntary disclosure, proviso to Sub-Section (1) of Section 126 makes </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">it very clear that no verification shall be made by the designated committee. Section 129 (2) (c) further says that in a case of voluntary disclosure where any material particular furnished in the declaration is subsequently found to be false within a period of one year of issue of discharge certificate, it shall be presumed that no such declaration was ever made. Consequently, proceedings under the applicable indirect tax enactment shall be instituted.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">46. Before parting with the record, there is one more aspect which we would like to advert. This relates to the aspect of natural justice. As we have noticed above, under Sub-Sections (2) and (3) of Section 127, in a case where the amount estimated by the designated committee exceeds the amount declared by the declarant, then an intimation has to be given to the declarant. However, before insisting on payment of the higher amount determined by the designated committee, the declarant is required to be afforded an opportunity of hearing by the designated committee. If in a situation where the amount estimated by the designated committee is in excess of the amount declared by the declarant, an opportunity of hearing is required to be given by the designated committee to the declarant, </span><span style=\"font-size: 12pt;\">then we are of the view that it would be in complete defiance of logic and contrary to the very object of the scheme to outrightly reject a declaration on the ground of ineligibility without affording an opportunity to the declarant to explain as to why his declaration should be accepted and relief under the scheme should be extended to him. Rejection of a declaration will lead to adverse civil consequences for the declarant as he would have to face the consequences of enquiry or investigation under the relevant indirect tax enactment. It is axiomatic that when a person is visited by adverse civil consequences, principles of natural justice like notice and hearing would have to be complied with. Therefore, summary rejection of a declaration without affording any opportunity of hearing to the declarant would be in violation of the principles of natural justice.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\">47. As has been held by a division bench of the Bombay High Court in Thought Blurb Vs. Union of India , non-compliance to the principles of natural justice by the designated committee while rejecting a declaration would impeach the decision making process rendering the decision invalid in law.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-size: 12pt;\">48. For all the aforesaid reasons, the impugned intimation dated 27.09.2019 being wholly unsustainable is set aside and quashed. The </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">matter is remanded back to respondent Nos.3 and 4 who shall consider the declaration of the petitioner afresh in terms of the scheme as a valid declaration under the category of ‘voluntary disclosure’. While doing so, the said respondents shall provide an opportunity of hearing to the petitioner and thereafter pass a speaking order in accordance with law with due communication to the petitioner. The above exercise shall be carried out within a period of eight weeks from the date of receipt of a copy of this order.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">49. Writ petition is accordingly allowed. However, there shall be no order as to costs. As a sequel, miscellaneous petitions if any pending in this writ petition shall stand closed.</span></span></p>', 'dfa7771a408c7a24fa4bacbefbbecd63.jpeg', 'a438cb399c84b5e206008d076d4d2708.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-28', 1, '', '', '2022-04-26 19:04:10', '2022-04-28 22:43:04'),
(1639, 'pfsOJfUDGPnYXTLFgNWTkELF9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Period spent by an accused pursuant to a body warrant must be counted for the purpose of default bail under Section 167(2) Cr.P.C. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shri Comanduru Parthasarathy Vs State of Karnataka<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 2802 of 2022 decided on 21 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner, in the subject petition, seeks to quash the order dated 29-01-2022 passed by the IV Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.2423 of 2022 arising out of Crime No.82 of 2021 and has consequently sought enlargement on bail in connection with the aforesaid  crime  which  has  been  registered  under  Sections  107, 424, 427, 34, 418, 421, 403, 406, 409, 411, 413, 414, 420, 468, 120, 120(A), 378, 405, 410, 415, 425, 463, 464 and 117 of the Indian Penal Code.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The Apex Court, in the aforesaid cases, while delineating the right of the accused under Section 167(2) holds that it is an indefeasible right of the accused to be enlarged on bail the moment the statutory period begins to operate, except in statutes where such provision for extension is available.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Therefore, liberty of the petitioner was curtailed by the Court when the body warrant was executed and he was remanded to police custody. Later, on 2-11-2021, the petitioner was remanded to judicial custody. In terms of Section 167(2) of the Cr.P.C. investigation is to be completed within 60/90 days. An application is filed by the petitioner on the 95th day on 25-01-2022 seeking enlargement on bail or statutory bail  in  terms of Section 167(2) of the Cr.P.C. This is  rejected  by  an  order dated 29-01-2022 on the ground that the petitioner was remanded to judicial custody only on 2.11.2021 and the right of the petitioner had not yet ripened in terms of Section 167(2) for grant of bail, as body warrant period under Sections 267 and 270 of the Cr.P.C. cannot be counted as period spent by the petitioner being in judicial custody. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. Therefore, the issue that is required to be considered now is, when the clock would begin to tick in terms of Section 167(2) of the Cr.P.C. notwithstanding the accused being on body-warrant.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The Division Bench rejects the contention that the moment requisition for body warrant was served by the Jail Authorities the clock begins to tick, but holds that under Section 167 of the Cr.P.C., the period would commence, the date on which the detention of the accused is authorized to be  in  the  custody, as the Magistrate would deem fit.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>In the light of the aforesaid findings  in the judgments  of this Court concerning body warrant, the body warrant against the petitioner was executed on 20-10-2021 and the  petitioner  was produced before the learned Magistrate on 21-10-2021. Therefore, the clock begins to tick from 21-10-2021 as he was taken into custody and remanded to police custody in terms of  the said order. Judicial custody though comes about  on  2.11.2021, the petitioner was by then in police custody and his liberty had been curtailed as he was in the custody of the police  on body warrant. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>The learned High Court Government Pleader contends that the charge sheet is filed against the  petitioner.  This  is plainly contrary to the facts, as the police filed the charge sheet only against accused Nos.3 and 12 as could be seen from the order sheet appended to the petition. This  fact  is  undisputed. The contention of the learned High Court Government Pleader is that once the charge sheet is filed against any of the accused the other accused also would not be entitled to claim a right under Section 167(2) of the Cr.P.C. This, on the face of it, is unacceptable, as it is fundamentally flawed. It is the case of the prosecution itself that the matter was pending  investigation by the police against the  petitioner/accused No.2.  Even this  day, it is the case of the High Court Government Pleader, that the case against the petitioner is still under investigation and on a plain mathematical calculation the petitioner is now in custody for  close to 180 days, twice the period of a right  under  Section  167(2) of the Cr.P.C.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>In the teeth of the provision under Section 167(2) of the Cr.P.C.; the interpretation of the Apex Court on Section 167(2) of the Cr.P.C. holding it to be an indefeasible right of the accused; orders passed by the Co-ordinate Benches of this Court concerning body warrant; the question being answered by the Division Bench as to when the clock begins to  tick in favour of  the accused in terms of Section 167 of the  Cr.P.C., the trajectory  of all these would lead to an unmistakable conclusion that the petitioner, in the case at hand, would become entitled to enlargement on statutory bail in terms of Section 167(2) of the Cr.P.C., as admittedly, even after close to 180 days the case  against the petitioner is pending investigation.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Order:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Criminal Petition is allowed and the order dated 29.01.2022 passed by the IV Additional Chief Metropolitan Magistrate, Bengaluru is quashed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>The petitioner is ordered to be released on statutory bail under Section 167(2) of the Cr.P.C. in connection with Crime No.82 of 2021 on executing  personal  bond for a sum of rupees one lakh with one surety of the like amount to the satisfaction of the trial Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3ec8445b7d8b7226e7ed58e06de9559d.jpeg', '8f58906553ebd6a0834e9d6bf27970d4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-27', 1, '', '', '2022-04-27 04:09:42', '2022-04-27 15:30:10'),
(1640, 'gaV1G50lHoZnr8WPTpv8UDd6F', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'An ambiguous term in an insurance contract is to be construed harmoniously and if no clarity emerges, the term must be interpreted in favour of the insured and against the insurer. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Haris Marine Products Vs Export Credit Guarantee Corporation Limited.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4139 of 2020 decided on 25 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Ravindra Bhat and Justice Pamidighantam Sri Narasimha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. With consent of counsel for the parties, the appeal was heard finally. The\r\nappellant is aggrieved by an order1 of the National Consumer Disputes Redressal\r\nCommission (hereinafter, “NCDRC”) dismissing its complaint. The issue urged by\r\nthe appellant is whether the NCDRC was correct in placing reliance on guidelines\r\nissued by the Directorate General of Foreign Trade (hereinafter, “DGFT\r\nGuidelines”)2\r\nto interpret the date of ‘despatch / shipment’ in the Single Buyer\r\nExposure Policy of the respondent (hereinafter, “Policy”), and thereby deny the\r\nappellant’s claim.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. It is entrenched in our jurisprudence that an ambiguous term in an insurance\r\ncontract is to be construed harmoniously by reading the contract in its entirety. If\r\nafter that, no clarity emerges, then the term must be interpreted in favour of the\r\ninsured, i.e., against the drafter of the policy. In deciding the applicability of a cover note on houses swept away by floods, a Constitution Bench of this Court in General\r\nAssurance Society Ltd. v. Chandumull Jain held as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>“In other respects there is no difference between a contract of insurance\r\nand any other contract except that in a contract of insurance there is a\r\nrequirement of uberrima fides i.e., good faith on the part of the assured\r\nand the contract is likely to be construed contra proferentem that is\r\nagainst the company in case of ambiguity or doubt… (I)n interpreting\r\ndocuments relating to a contract of insurance, the duty of the court is\r\nto interpret the words in which the contract is expressed by the parties,\r\nbecause it is not for the court to make a new contract, however\r\nreasonable, if the parties have not made it themselves”.</i><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>While the court ultimately denied insurer’s liability, it laid down the manner\r\nin which ambiguities were to be interpreted. Since then, a catena of judgments has\r\nupheld this approach. In United India Insurance Co. Ltd. v. Pushpalaya Printers,\r\na Division Bench of this Court was confronted with interpreting the term ‘impact’\r\nin an insurance policy for protection against damage caused to the insured building.\r\nInterpreting the term to include damage caused by strong vibrations by heavy\r\nvehicles without ‘direct’ impact, this Court held:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>“The only point that arises for consideration is whether the word\r\n“impact” contained in clause 5 of the insurance policy covers the\r\ndamage caused to the building and machinery due to driving of the\r\nbulldozer on the road close to the building… (I)t is also settled position\r\nin law that if there is any ambiguity or a term is capable of two possible\r\ninterpretations, one beneficial to the insured should be accepted\r\nconsistent with the purpose for which the policy is taken, namely, to\r\ncover the risk on the happening of certain event… Where the words of\r\na document are ambiguous, they shall be construed against the party\r\nwho prepared the document. This rule applies to contracts of insurance\r\nand clause 5 of the insurance policy even after reading the entire policy\r\nin the present case should be construed against the insurer”. </b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Similarly, in Sushilaben Indravadan Gandhi v New India Assurance\r\nCompany Ltd., this Court charted the evolution of the rule of contra proferentem,\r\nand relied inter alia on its explanation as provided under Halsbury\'s Laws of\r\nEngland: </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>“Contra proferentem rule.—Where there is ambiguity in the policy the\r\ncourt will apply the contra proferentem rule. Where a policy is\r\nproduced by the insurers, it is their business to see that precision and\r\nclarity are attained and, if they fail to do so, the ambiguity will be\r\nresolved by adopting the construction favourable to the insured.\r\nSimilarly, as regards language which emanates from the insured, such\r\nas the language used in answer to questions in the proposal or in a slip,\r\na construction favourable to the insurers will prevail if the insured has\r\ncreated any ambiguity. This rule, however, only becomes operative\r\nwhere the words are truly ambiguous; it is a rule for resolving\r\nambiguity and it cannot be invoked with a view to creating a doubt.\r\nTherefore, where the words used are free from ambiguity in the sense\r\nthat, fairly and reasonably construed, they admit of only one meaning,\r\nthe rule has no application.”\r\n</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The rule of contra proferentem thus protects the insured from the vagaries\r\nof an unfavourable interpretation of an ambiguous term to which it did not agree.\r\nThe rule assumes special significance in standard form insurance policies, called\r\ncontract d’ adhesion or boilerplate contracts, in which the insured has little to no\r\ncountervailing bargaining power. This consideration is highlighted in the facts of\r\nthis case, since the risks that ECGC is mandated to cover is its business, and other\r\ninsurers rarely foray into the field. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. A plain reading of the policy in question demonstrates that it was taken to\r\nprotect against failure of the foreign buyer in paying the Indian exporter for goods\r\nexported. It was not a policy taken to cover in-transit insurance, and the cause of\r\naction triggering the claim arose much later, i.e., on 14.02.2013, well within the\r\ncoverage of the policy.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'db749cbbc7d3157ff806c264d71e4862.jpeg', 'd08d234787a459e1c0648db8cbc6236f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-30', 1, '', '', '2022-04-29 18:05:37', '2022-04-30 09:04:03');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1641, 'YxTg9NEsjzG1k9cUGhBUv7KCl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When private land is illegally used by Government, disputed plea of voluntary & free of cost surrender by the landowners cannot be entertained by Courts. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kalyani (Dead) through LRS and others Vs The Sulthan Bathery Municipaloty and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3189 of 2022 decided on 26 April 2022. <o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dinesh Maheshwari and Justice Vikram Nath.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Appellants - eight in number, have assailed the\r\ncorrectness of Judgment and Order dated 12.09.2018 passed by\r\nthe Division Bench of the High Court of Kerala at Ernakulam in\r\nW.A. No. 2108 of 2016 between Sulthan Bathery Municipality\r\nvs. Kalyani and 12 others, whereby the judgment of the Single\r\nJudge was set aside and the writ petition filed by the appellants\r\nwas dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. The appellants are farmers and the land utilized is\r\nagricultural land. It was part of their livelihood. Depriving them\r\nof their part of their livelihood and also of their property without\r\nauthority of law would be violative of Article 21 and Article\r\n300A of the Constitution.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Article 300A though not a fundamental right but\r\nnevertheless it has status of being a constitutional or a\r\nstatutory right. It provides that no citizen would be deprived of\r\nhis property save without authority of law. Depriving somebody\r\nof his property, where it is land, can be made by number of\r\nmodes e.g. by acquisition, surrender or by transfer and other\r\nfacets also. In the present case, it being utilized for the road to\r\nbe owned by the Panchayat/Municipality, it could either have\r\nbeen voluntarily surrendered, transferred by way of title deeds\r\nor by way of acquisition as may be provided under the statute.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. In the present case, admittedly, there is neither any\r\nacquisition proceedings nor any transfer of rights by the\r\nappellants by way of sale, gift or otherwise. What is being\r\nalleged is that it was a voluntarily surrender of rights for no\r\nconsideration. This is the stand taken by\r\nPanchayat/Municipality. If the Panchayat/Municipality is taking\r\nthis stand, the burden would be on the Panchayat/Municipality\r\nto establish such voluntary surrender. A memorandum or an\r\nagreement or a written document ought to have been executed by the appellants stating their free will to surrender for no\r\nconsideration in favour of the Panchayat/Municipality.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. The learned single Judge has clearly recorded that\r\nPanchayat/Municipality as also the PWD failed to produce any\r\nsuch evidence. Even the Division Bench did not find any\r\nmaterial on record produced by the Panchayat/Municipality or\r\nthe PWD to the aforesaid effect. However, the Division Bench\r\nproceeded on the premise that the burden would lie on the\r\nappellants to establish that they were given an assurance. It is\r\nthe Panchayat/Municipality which is the beneficiary. Burden\r\nshould be on the Panchayat/Municipality to prove that there\r\nwas a voluntary surrender.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. In our considered view, the Division Bench proceeded on a\r\nwrong premise on shifting the burden on the appellants. The\r\nassertion that it was surrendered voluntarily without any claim\r\nfor consideration is by the Panchayat/Municipality. The PWD has\r\nonly stated that it received the land from Panchayat and that it\r\nwas given to understand that the land was surrendered <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">voluntarily. Thus, it is the stand of Panchayat/Municipality which\r\nis to be taken note of.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. Another reasoning given by the Division Bench is that the\r\nappellants made a stale claim and it was as an afterthought\r\nthat they started claiming compensation after\r\nconstruction/widening of the road had completed. This\r\nreasoning of the Division Bench, in our view, was also not\r\nsustainable in as much as the appellants had represented at\r\nthe earliest, after the land was utilized, to the authorities to pay\r\nthe compensation. As far as the averments in the petition are\r\nconcerned, they refer to a couple of representations given right\r\nfrom 2011 onwards and when nothing proceeded, the\r\nappellants approached the High Court in 2014. Therefore, to\r\nsay that there was substantial delay on the part of the\r\nappellants in agitating for their rights would not be correct. We\r\nfind from the writ petition that one of the first representation\r\nwas made on 30.03.2011 addressed to the Chief Engineer, PWD\r\nclaiming compensation to which the appellants also received a\r\nresponse dated 25.04.2011 stating that PWD had not acquired\r\nthe land but had received it from the Panchayat. The appellants </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">also obtained relevant material under the Right to Information\r\nAct with respect to their claim which is also a part of the writ\r\npetition. The appellants further gave a legal notice dated\r\n11.01.2013 addressed to the State as also the PWD. Thereafter\r\nanother representation was given to the Secretary of the\r\nPanchayat on 05.11.2013 claiming compensation. In the\r\ncounter affidavit filed by the Panchayat and also the PWD, the\r\nrepresentation of the petitioners referred to above are not\r\ndenied.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>16. The Division Bench has also noted that there was no\r\nscheme for road development by giving price of the land\r\nacquired. This observation by the Division Bench would also be\r\ncontrary to mandate of Article 300A. If there was no scheme,\r\nthen it was the fault of the State or the Panchayat. To say that\r\nthere was no scheme is one thing and owner of the land\r\nsurrendering his land voluntarily without payment of\r\ncompensation would be different. If there was no such scheme\r\nthen all the more it was necessary to get the surrender, if any,\r\ndocumented, by the Panchayat/Municipality or the State or the\r\nPWD, as the case may be.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. Sole question for consideration would be as to whether the\r\nappellants had voluntarily surrendered their land to the\r\nPanchayat free of cost without raising any claim for\r\ncompensation or not. The Panchayat as also the PWD have\r\nfailed to produce a single piece of document or evidence in any\r\nother form in support of their defense that the appellants have\r\nsurrendered their land voluntarily. The consistent stand of the\r\nappellants, on the other hand, has been that they have not\r\ngiven their land to the Panchayat voluntarily and that they were\r\nassured that they would be suitably compensated. The PWD\r\nproceeded to construct the road upon the land made available\r\nby the Panchayat. No doubt, the road is in the ownership and\r\npossession of the Panchayat but the land over which the road\r\nwas to be constructed or widened was neither in ownership nor\r\npossession of the Panchayat. The PWD did not care to take any\r\nfurther clarification from the Panchayat as to whether such land\r\nhas been acquired, purchased or voluntarily given by the land\r\nowners. The PWD has only stated that it received the land from\r\nPanchayat and that it was informed that such land has been\r\nmade available voluntarily without any claim for compensation\r\nand free of cost. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. The stand of the PWD cannot be the basis for determining\r\nas to whether the appellants had surrendered their land free of\r\ncost without any claim for compensation or that they had\r\nexpectations to receive compensation as assured by the\r\nPanchayat. The Division Bench fell in error in taking into\r\nconsideration the stand of the PWD.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. Article 300A clearly mandates that no person shall be\r\ndeprived of his property save by authority of law. In the\r\npresent case, we do not find, under which authority of law, the\r\nland of the appellants was taken and they were deprived of the\r\nsame. If the Panchayat and the PWD failed to produce any\r\nevidence that appellants have surrendered their lands\r\nvoluntarily, depriving the appellants of the property would be in\r\nviolation of Article 300-A of the Constitution.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. A Constitution Bench of this Court in the case of K.T.\r\nPlantation Private Limited and another vs. State of\r\nKarnataka1\r\n apart from others, dealt with an issue relating to\r\npayment of compensation where a person is deprived of his\r\nproperty after deletion of Article 31(2). It laid down that there\r\nare two requirements to be fulfilled while depriving a person of\r\nhis property. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a7d306b2b035c45e97d20b1cd552dc04.jpeg', 'efd4ff91ee9f6b0e49d12d4953acf3ba.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-30', 1, '', '', '2022-04-29 18:12:55', '2022-04-30 05:26:12'),
(1642, 'EHmEFcrTdE3q2k8c6TDKGlyDy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Once an instrument is charged stamp duty under a correct provision of the Statute, the Revenue cannot subject the same instrument to duty once again under a different provision. Supreme Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Asset Reconstruction Co (INDIA) Ltd. VS Chief Controlling Revenue Authority.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3070 of 2022 decided on 26 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Gupta and Justice V. Ramasubramanian</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. Aggrieved by the opinion rendered by the Full Bench of the High Court of Gujarat in a Stamp Reference under Section 54(1)(a) of the Gujarat Stamp Act, 1958 (hereinafter referred to as the ‘Act’), made by the Chief Controlling Revenue Authority of the State of Gujarat, the Asset Reconstruction Company (India) Ltd., has come up with the above appeal.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. For finding an answer to the above questions, the Full Bench of the High Court examined the recitals contained in the deed of assignment and found that the Bank had agreed to execute an irrevocable PoA in favour of the appellant herein, substantially in the form set out in Schedule of the deed of assignment. The form set out in Schedule 3 contained recitals empowering the assignee, as the agent of the Bank, to sell any immovable property. Therefore, considering the fact that Article 45(f) of Schedule I to the Act makes a PoA given for a consideration and containing an authority to sell any immovable property chargeable to stamp duty as a conveyance, the High Court came to the conclusion that the appellant has to pay stamp duty as fixed by Article 45(f). The High Court opined that merely because the power to sell, forms part of the deed of assignment under Schedule 3, the appellant could not escape the charge of duty and that the PoA is required to be considered independently.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. In the case on hand, the consideration paid by the appellant to OBC, was for the purpose of acquisition of the financial assets, in respect of a particular borrower. The draft of the PoA contained in Schedule 3 of the deed of assignment was only incidental to the deed of  assignment. The deed  of assignment has  already  been charged to duty under Article 20(a) which deals with “conveyance”. In fact Article 45(f) also requires a PoA   covered  by the said provision to be chargeable to stamp duty under Article 20.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. In view of the Notification dated 01.04.2003 issued in exercise of the power to reduce, remit or compound the duty, conferred by Section 9(a) of the Act, the amount of duty chargeable in terms of Article 20(a) was capped at Rs. 1,00,000/­. In addition to the said amount of  Rs.1,00,000/­, the  appellant was asked to pay an additional duty of Rs.40,000/­ under Section 3­A. The appellant has thus paid a total amount of Rs.1,40,000/­ with the instrument having been charged as a conveyance under Article 20(a). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. In all taxing Statutes, there are taxing provisions and machinery provisions. Once a single instrument has been charged under a correct charging provision of the Statute, namely Article 20(a), the Revenue cannot split the instrument into two, because of the reduction in the stamp duty facilitated by a notification of the Government issued under Section 9(a). In other words after having accepted the deed of assignment as an instrument chargeable to duty as a conveyance under Article 20(a) and after having collected the duty payable on the same, it is not open to the respondent to subject the same instrument to duty once again under Article 45(f), merely because the appellant had the benefit of the notifications under Section 9(a). Since the impugned order of the High Court did not address these issues and went solely on the interpretation of Article 45(f), the same is unsustainable. Therefore, the appeal is allowed and the impugned order is set aside. The demand made by the Chief Controlling Revenue Authority is consequently set aside. There will be no order as to costs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5b6782f07d5c9761127d7f9d277043fa.jpeg', '1e0bfe978493c26ce2641e612c7d7672.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-29', 1, '', '', '2022-04-29 18:21:06', '2022-04-29 23:22:17'),
(1643, 'QxQHZO1iaGyr51iMBmpB44acw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Factors to be considered when a company, within a group of companies, though not a signatory to arbitration agreement would nonetheless be bound by the arbitration agreement – explained by the Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Oil and Natural Gas Corporation Ltd Vs M/s Discovery Enterprises Pvt Ltd and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2042 of 2022 decided on 27 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dhananjaya Y Chandrachud , Justice Surya Kant and Justice Vikram Nath.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. On 22 March 2006, ONGC awarded a contract to Discovery Enterprises\r\nPrivate Limited, the first respondent, which is a company belonging to the D P\r\nJindal Group, for operating a floating, production, storage and offloading vessel .\r\nPursuant to the stipulation contained in clause 25.7.11 of the contract, a vessel\r\ncalled Crystal Sea was imported on 11 May 2006. ONGC paid the customs duty in\r\nthe amount of Rs. 55.78 crores on the understanding that the vessel would be reexported after work was complete under duty drawback whose formalities would be\r\ncompleted by DEPL. The vessel left Indian territorial waters and did not return.\r\nAccording to ONGC, DEPL failed to complete the formalities for duty drawback and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">did not compensate ONGC for customs duty and other expenses incurred in the\r\namount of Rs. 63.88 crores.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. Commentators have noted that a signed written agreement to submit a\r\npresent or future dispute to arbitration does not exclude the possibility of an\r\narbitration agreement binding a third party. A non-signatory may be bound by the\r\noperation of the group of companies doctrine as well as by the operation of the\r\nprinciples of assignment, agency and succession.\r\n23 A party, which is not a signatory\r\nto a contract containing an arbitration clause, may be bound by the agreement to\r\narbitrate if it is an alter ego of a party which executed the agreement. This\r\nconstitutes a departure from the ordinary principle of contract law that every\r\ncompany in a group of companies is a distinct legal entity. A non-signatory may be\r\nbound by the arbitration agreement where:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) There exists a group of companies; and</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) Parties have engaged in conduct or made statements indicating an intention\r\nto bind a non-signatory. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. Gary B. Born in his treatise on International Commercial Arbitration indicates\r\nthat:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span lang=\"EN-US\">“The principal legal basis for holding that a nonsignatory is bound (and benefited) by an arbitration\r\nagreement … include both purely consensual theories </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(e.g., agency, assumption, assignment) and nonconsensual theories (e.g. estoppel, alter ego).</span><span style=\"font-size: 12pt;\"> </span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Explaining the application of the alter ego principle in arbitration, Born also notes</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>“Authorities from virtually all jurisdictions hold that a\r\nparty who has not assented to a contract containing\r\nan arbitration clause may nonetheless be bound by\r\nthe clause if that party is an ‘alter ego’ of an entity that\r\ndid execute, or was otherwise a party to, the\r\nagreement. This is a significant, but exceptional,\r\ndeparture from the fundamental principle … that each\r\ncompany in a group of companies (a relatively\r\nmodern concept) is a separate legal entity possessed\r\nof separate rights and liabilities.\r\n[……]</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“the group of companies doctrine is akin to principles\r\nof agency or implied consent, whereby the corporate\r\naffiliations among distinct legal entities provide the\r\nfoundation for concluding that they were intended to\r\nbe parties to an agreement, notwithstanding their\r\nformal status as non-signatories.”</i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. Recently, John Fellas elaborated on the principle of binding a non-signatory to\r\nan arbitration agreement from the lens of the doctrine of estoppel. He situated the\r\nrationale behind the application of the principle of direct estoppel against competing\r\nconsiderations of party autonomy and consent in interpreting arbitration agreements.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. In deciding whether a company within a group of companies which is not a\r\nsignatory to arbitration agreement would nonetheless be bound by it, the law\r\nconsiders the following factors:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The mutual intent of the parties;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) The relationship of a non-signatory to a party which is a signatory to the\r\nagreement;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) The commonality of the subject matter;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iv) The composite nature of the transaction; and</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(v) The performance of the contract.\r\nConsent and party autonomy are undergirded in Section 7 of the Act of 1996.\r\nHowever, a non-signatory may be held to be bound on a consensual theory,\r\nfounded on agency and assignment or on a non-consensual basis such as estoppel\r\nor alter ego. These principles would have to be understood in the context of the\r\npresent case, where ONGC’s attempt at the joinder of JDIL to the proceedings was\r\nrejected without adjudication of ONGC’s application for discovery and inspection of\r\ndocuments to prove the necessity for such a joinder</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. The fundamental basis of the interim award is that in view of the provisions of\r\nSection 7 and the definition of the expression “party” in Section 2(1)(h), the\r\nprovisions of the Act of 1996 could not be invoked or applied to a non-signatory to\r\nan arbitration agreement. The Tribunal held that it has no jurisdiction to investigate,\r\nenquire into or record any findings on the basis of ONGC’s claim against JDIL.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>51. For all the above reasons we have come to the conclusion that there was a\r\nfundamental failure of the first Arbitral Tribunal to address the plea raised by ONGC\r\nfor attracting the group of companies doctrine. Moreover, by leaving the application\r\nfiled by ONGC for discovery and inspection unresolved, the first Arbitral Tribunal\r\nfailed to allow evidence which may have had a bearing on the issue of whether JDIL\r\ncould be considered to have an economic unity with DEPL and could hence be\r\nmade a party to the arbitral proceedings.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>54. The appeal is allowed in the above terms. The transferred cases are remitted\r\nback to the Bombay High Court for disposal in the light of the above directions.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '04e6a23fd9629938cf472736f5482c21.jpeg', '96b67f39a0746aee7bde3ade57d736e8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-30', 1, '', '', '2022-04-29 18:35:26', '2022-04-30 11:51:50'),
(1644, 'WPe9jAhNoZ4TtYEppKgfVnLDY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Reserved category candidate scoring more than last ranked person in general category should be considered under general category so that seats in reserved category can be filled by another deserving candidate from such category. Supreme Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bharat Sanchar Nigam Limited and another Vs Sandeep Choudhary and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8717 of 2015 decided on 28 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order dated 04.08.2014 passed by the High Court of Rajasthan at\r\nJodhpur in DBCWP No. 14714/2013, by which the High Court has\r\ndismissed the said writ petition preferred by the appellants herein –\r\nBharat Sanchar Nigam Limited (hereinafter referred to as “BSNL”) and\r\nhas confirmed the judgment and order passed by the Central\r\nAdministrative Tribunal, Jodhpur Bench, Jodhpur (hereinafter referred to\r\nas the “Tribunal”) in O.A. No. 159 of 2009 by which the learned Tribunal <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">allowed the said application preferred by the respondent No.1 herein –\r\noriginal applicant and directed the appellant herein – BSNL to consider\r\nhis candidature if sufficient vacancies exist for placement of the\r\ncandidates of Other Backward Class and his candidature shall be\r\nconsidered against the present or future vacancies on the OBC category\r\nafter determining the vacancies as per rules, the appellant – BSNL has\r\npreferred the present appeal.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The short question which is posed for the consideration of this\r\nCourt is:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>“Whether in a case where the reserved category\r\ncandidates secured more marks than the general\r\ncategory candidates, such reserved category candidates\r\nwill have to be first adjusted in the general category pool\r\nand they shall be considered for appointment in the\r\ngeneral category pool or against the vacancies meant for\r\nreserved category candidates? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8.1 In the case of Indra Sawhney (supra) in paragraph 812, it is\r\nobserved and held as under:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ed and held as under:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>“812. We are also of the opinion that this rule of 50%\r\napplies only to reservations in favour of backward classes\r\nmade under Article 16(4). A little clarification is in order at\r\nthis juncture : all reservations are not of the same nature.\r\nThere are two types of reservations, which may, for the\r\nsake of convenience, be referred to as “vertical reservations” and “horizontal reservations”. The\r\nreservations in favour of Scheduled Castes, Scheduled\r\nTribes and Other Backward Classes [under Article 16(4)]\r\nmay be called vertical reservations whereas reservations\r\nin favour of physically handicapped [under clause (1) of\r\nArticle 16] can be referred to as horizontal reservations.\r\nHorizontal reservations cut across the vertical\r\nreservations — what is called interlocking reservations. To\r\nbe more precise, suppose 3% of the vacancies are\r\nreserved in favour of physically handicapped persons; this\r\nwould be a reservation relatable to clause (1) of Article\r\n16. The persons selected against this quota will be placed\r\nin the appropriate category; if he belongs to SC category\r\nhe will be placed in that quota by making necessary\r\nadjustments; similarly, if he belongs to open competition\r\n(OC) category, he will be placed in that category by\r\nmaking necessary adjustments. Even after providing for\r\nthese horizontal reservations, the percentage of\r\nreservations in favour of backward class of citizens\r\nremains — and should remain — the same. This is how\r\nthese reservations are worked out in several States and\r\nthere is no reason not to continue that procedure.”</i><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8.5. In a more recent decision this Court in the case of Saurav Yadav\r\nVs. State of U.P., (2021) 4 SCC 542 after referring to all the earlier\r\njudgments on vertical reservation has observed and held that it is well\r\nsettled that candidates belonging to any of the vertical reservation\r\ncategories are entitled to be selected in “open or general” category and it\r\nis also further observed that if such candidates belonging to reserved\r\ncategories are entitled to be selected on the basis of their own merit,\r\ntheir selection cannot be counted against the quota reserved for the\r\ncategories that they belong.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8.6. Similar view has been expressed by this Court in another recent\r\ndecision of this Court in the case of Sadhana Singh Dangi Vs. Pinki\r\nAsati, (2022) 1 SCALE 534. By the said decision, it is reiterated that the\r\nreserved category candidates securing higher marks than the last of the\r\ngeneral category candidates are entitled to get seat/post in unreserved\r\ncategories. It is further observed and held that even while applying\r\nhorizontal reservation, merit must be given precedence and if the\r\ncandidates, who belong to SCs, STs and OBCs have secured higher\r\nmarks or are more meritorious, they must be considered against the\r\nseats meant for unreserved candidates. It is further observed that the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">candidates belonging to reserved categories can as well stake claim to\r\nseats in unreserved categories if their merit and position in the merit list\r\nentitles them to do so.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Applying the law laid down by this Court in the aforesaid decisions\r\nto the facts of the case on hand, it is noted that the aforesaid two\r\ncandidates, namely, Mr. Alok Kumar Yadav and Mr. Dinesh Kumar,\r\nbelonging to OBC category, were required to be adjusted against the\r\ngeneral category as admittedly they were more meritorious than the last\r\nof the general category candidates appointed and that their\r\nappointments could not have been considered against the seats meant\r\nfor reserved category. Consequently, after considering their\r\nappointments in the general category, the seats meant for reserved\r\ncategory were required to be filled in from and amongst the other\r\nremaining reserved category candidates on merit such as respondent\r\nNo.1 herein. If such a procedure would have been followed, the original\r\napplicant – respondent No.1 would have got appointed on merit in the\r\nreserved category seats in the vacancy caused due to the above\r\nprocedure. Therefore, as such the High Court has not committed any\r\nerror in observing and holding that the aforesaid two candidates, namely,\r\nMr. Alok Kumar Yadav and Mr. Dinesh Kumar, will have to be adjusted\r\nagainst the general category candidates and accordingly respondent <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">No.1 being a reserved category candidate and being at Sr. No.1 in the\r\nwaiting list of reserved category was to be appointed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">However, at the same time, it cannot be disputed that by\r\nreshuffling and on insertion of two OBC candidates into general category\r\nselect list, two general category candidates already appointed shall have\r\nto be expelled and/or shall have to be removed, who are working since\r\nlong and it may unsettle the entire selection process. Therefore, to strike\r\na balance and to ensure that the two general category candidates, who\r\nare already appointed will not have to be removed and at the same time,\r\nrespondent No.1 – original applicant being a reserved category\r\ncandidate also gets accommodated, if he is so appointed, in exercise of\r\nthe powers under Article 142 of the Constitution of India, we propose to\r\npass an order that on reshuffling and on respondent No.1 – original\r\napplicant being appointed now against the reserved category seats and\r\nwhile the aforesaid two candidates, namely, Mr. Alok Kumar Yadav and\r\nMr. Dinesh Kumar, belonging to reserved category, to be treated in the\r\ngeneral category seats, two candidates already appointed and belonging\r\nto general category shall not be removed. However, respondent No.1\r\nshall get the seniority from the date the general category candidates\r\nwere appointed, who were having lesser merit than the aforesaid two\r\nreserved category candidates, namely, Mr. Alok Kumar Yadav and Mr.\r\nDinesh Kumar.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">10. Now, so far as the decision of this Court in the case of Ramesh\r\nRam (supra) relied upon by learned counsel appearing on behalf of the\r\nBSNL is concerned, the aforesaid decision is not applicable to the facts\r\nof the case on hand. The said decision is distinguishable on facts. In the\r\nsaid case, this Court was considering Rule 16(2) of Civil Services\r\nExamination Rules relating to Civil Services Examination held by the\r\nUnion Public Service Commission. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The said case was a case of Civil Services, where the selected\r\ncandidates were having different preferences and in a given case, it may\r\nhappen that the general category candidates, who are less meritorious\r\nand the reserved category candidates having more marks than the\r\ngeneral category candidates and consequently they are to be adjusted\r\nagainst the reserved category and they can possibly secure posts in a\r\nservice of a higher preference. Therefore, option was given to such\r\ncandidates belonging to reserved category to consider their candidature\r\nagainst the reserved category only despite having higher merit than\r\nGeneral Category Candidates. However, in the present case, there is no </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">question of any such preference.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>We fail to appreciate how the said decision is applicable to facts of\r\nthe case on hand and/or of any assistance to the BSNL faced with the\r\ndecisions of this Court in the case of Indra Sawhney (supra) and other\r\ndecisions referred to hereinabove.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. In view of the above and for the reasons stated above, the present\r\nappeal fails and the same deserves to be dismissed and is accordingly\r\ndismissed. The High Court has rightly observed and held that two\r\nreserved category candidates, namely, Mr. Alok Kumar Yadav and\r\nMr. Dinesh Kumar having more marks than the general category\r\ncandidates appointed, were entitled to the appointment in the general\r\ncategory and the seats reserved for OBC category were required to be\r\nfilled in from and amongst the remaining candidates belonging to the\r\nOBC category. Consequently, respondent No.1 – original applicant was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">entitled to the appointment on such post. However, at the same time in\r\nexercise of the powers under Article 142 of the Constitution of India, it is\r\nobserved and directed that on reshuffling, the two candidates belonging\r\nto general category shall not be removed from service as they are\r\nworking since long. However, at the same time, the respondent No.1\r\nshall be entitled to the seniority from the date, the general category\r\ncandidates having lesser marks than the aforesaid two reserved\r\ncategory candidates were appointed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">With this, the present appeal stands dismissed. However, in the\r\nfacts and circumstances, there shall be no order as to costs.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. Before parting, we would like to deeply appreciate the services\r\nrendered by Dr. Rajeev Dhavan, learned Senior Advocate and Shri\r\nGaurav Agrawal, learned Advocate, who have assisted the Court as\r\nAmicus Curiae and we are thankful to both of them for their valuable\r\nassistance.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd5a9d474fb28755b62c6f9d84c97b064.jpeg', 'ee457196c26b35cb34abaabfc74c97de.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-01', 1, '', '', '2022-04-29 18:44:25', '2022-05-01 06:01:54');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1645, '88pNTl5Oce7nhyahIbmntbq4X', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Merely because an order or decree is executable, it would not take away the jurisdiction of the Court to deal with the matter under the Contempt of Courts Act, 1971. Delhi High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Navin Soni Vs Munish Soni and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CONT.CAS (C) 640 of 2018 decided on 26 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Subramonium Prasad.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. Shorn of details, the facts leading to the filing of the instant contempt\r\npetition are that a suit for possession, permanent injunction and for mesne\r\nprofit/damages was filed against the Respondents by one Badri Prakash\r\nSoni, who was the father of the Petitioner and the Respondent No.1. During\r\nthe pendency of the suit, the parents Badri Prakash Soni and Asha Soni </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">passed away, and Vikas Soni and Navin Soni (Petitioner herein) were\r\nimpleaded in lieu of the deceased parents.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. In the suit, the parties, who are related to each other, entered into a\r\ncompromise. Under the said compromise, the Respondents Munish Soni\r\nand Piyush Soni agreed to handover the ground floor of the premises, i.e. B2/103, Safdarjung Enclave, New Delhi, to the Petitioner on or before\r\n30.09.2017. Apart from this, the Defendants therein (this includes the\r\nPetitioner herein) were made to pay a sum of Rs.1 Crore under the said\r\ncompromise.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. A Memorandum of Settlement dated 18.02.2017 was also arrived at\r\nbetween the Petitioner and his brother, Vikas Soni, whereby absolute\r\nownership of the premises in question was given to the latter. Consequently,\r\na Relinquishment Deed dated 06.03.2017 was executed by Vikas Soni in\r\nfavour of the Petitioner. Thereafter, the Petitioner got the premises in\r\nquestion converted into freehold by paying conversion charges to the DDA\r\nand a conveyance deed was registered in favour of the Petitioner by the\r\nDDA on 06.07.2017.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Learned Counsel appearing for the Petitioner has taken this Court\r\nthrough the Memorandum of Settlement entered into between the parties, the\r\napplication under Order XXIII Rule 3 of the CPC, the affidavits filed by\r\nRespondent Nos.1 and 2 as well as the receipt of Rs.1 Crore that was paid by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Petitioner to the Respondents. He submits that the undertaking given to\r\nthis Court stands violated. He further submits that the Respondents were the\r\nduty bound to vacate the premises on or before 30.09.2017 which they have\r\nfailed to do so. Relying upon a judgement of this Court in Som Datt\r\nEnterprises Limited v. Vijay Cable Industries and Ors, (2016 SCC OnLine\r\nDel 6089), the learned Counsel for the Petitioner argues that the execution of\r\na decree does not take away a decree holder’s remedy of alleging contempt.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>10. Learned Counsel appearing for the Respondents contends that the\r\ninstant contempt proceedings cannot be entertained for violation of a\r\nconsent order when there are provisions for execution of the same under\r\nOrder 21 CPC. He further contends that Clause (n) of the application filed\r\nunder Order XXIII Rule 3 CPC specifies that in case the possession is not\r\nhanded over, the Petitioner would be entitled to recover the amount of Rs.1\r\nCrore, along with interest at the rate of 12%. He relies upon the judgment of\r\nthe Supreme Court in Babu Ram Gupta vs. Sudhir Bhasin, 1980 (3) SCC 47\r\nwherein it is stated that there exists a clear cut distinction between a\r\ncompromise arrived at between the parties or a consent order passed by the\r\nCourt at the instance of the parties, and a clear and categorical undertaking\r\ngiven by any of the parties. He states that the judgment clarifies that in case\r\nof the violation of the compromise arrived at between the parties by the\r\nconsent order, there is no question of contempt and the decree can be\r\nexecuted.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. Learned Counsel for the Respondents further places reliance upon the\r\njudgment of the Apex Court in Ashok Paper Kamgar Union vs. Dharam\r\nDhoda & Others, (2003) 11 SCC 1 to contend that the instant case is a case\r\nof breach of compromise decree and undertaking given to the party which</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cannot result in a contempt of Court. He states that only a violation of\r\nundertaking given to the Court can result in a contempt of Court which is\r\nnot there in the present case. He also states that a fraud has been played on\r\nthe Respondent on account of the fact that a sum of Rs.1 Crore has not been\r\nhanded over to the Respondents. He states that only a draft of Rs.20 lakhs\r\nhas been given to the Respondents and a sum of Rs.80 lakhs is yet to be\r\nhanded over to them.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. Learned Counsel for the Respondents further tries to indicate that the\r\nlawyer who appeared for the Respondents had appeared for the Petitioners\r\nas well in the same case. He states that there was a collusion between the\r\nPetitioners and the said lawyer for the Respondents which has resulted in\r\npassing of the said decree against the Respondents. He further states that the\r\nPetitioner has criminal antecedents and he has defrauded the Respondents.\r\nHe states that the Petitioner has not given the sum of Rs.1 Crore to the\r\nRespondents. He states that the Respondents were orally asking the\r\nPetitioner to pay the money which has not yet been paid. He, therefore,\r\nstates that this Court ought not to exercise its discretion in favour of the\r\nPetitioners. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. The Apex Court has repeatedly held that all decrees and orders are\r\nexecutable under the CPC, including consent decrees and orders, but merely\r\nbecause an order or decree is executable, it would not take away the\r\njurisdiction of the Court to deal with the matter under the Contempt of\r\nCourts Act, 1971.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. The learned Counsel for the Respondent’s reliance on Babu Ram\r\nGupta (supra) also does not hold any water. While rendering the decision in\r\nRama Narang (supra), the Apex Court had comprehensively considered the\r\ndecision given in Babu Ram Gupta (supra) and noted that the said decision\r\nwas solely based on the facts of the case therein and that the observations\r\nmade in that regard were obiter. The Apex Court went on to hold that\r\nSection 2(b) of the Contempt of Courts Act, 1971, itself provides that wilful\r\ndisobedience of any order or decree, etc. would tantamount to contempt and\r\nthat a compromise decree was as much a decree as a decree passed on\r\nadjudication.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. A perusal of the material on record indicates that the Respondents\r\nhave filed an affidavit in the suit for possession, permanent injunction and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for mesne profit/damages. In paragraph No.2 of the said affidavit, the\r\nRespondents have given an undertaking to this Court to vacate the ground\r\nfloor of property bearing No.B-2/103, Safdarjung Enclave, New Delhi, and\r\nthat they would positively hand over the physical vacant possession of the\r\nsame to the Petitioner on or before 30th September 2017.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>18. The said affidavit is a categorical undertaking given to this Court to\r\nvacate the premises. The said affidavit was prepared on 19.09.2012 and the\r\npremises were to be handed over to the petitioner on or before 30.09.2017.\r\nThere is nothing on record to show that the Respondents have approached\r\nthis Court by contending that a fraud has been played on them. A receipt has\r\nalso been filed to show that the payment of Rs.1 Crore has been received\r\nwhen the Order was passed by the Court decreeing the suit on the basis of\r\ncompromise entered into between the parties. The receipt of Rs.1 Crore has\r\nalso been acknowledged in the application filed under Order XXIII Rule 3 in\r\nthe case. The Respondents were also present in the Court when the learned\r\nCounsel for the parties stated before the Court that a settlement has been\r\narrived at between the parties out of their own free will, volition, consent\r\nand without undue influence. The Respondents – in persons also confirmed\r\nthe receipt of the Rs.1 Crore. It is now, therefore, not open to the\r\nRespondents to contend that they have not received the remaining sum of\r\nRs.80 lakhs.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">19. As stated earlier, that after a period of five years when the time came\r\nto vacate the premises, all these defences are being raised by the\r\nRespondents only when the instant contempt petition has been filed. The\r\njudgement of the Apex Court in Ashok Paper Kamgar Union vs. Dharam\r\nDhoda & Others (Supra) will not apply for the reason that the instant case is </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not only a violation of a compromise arrived at between the parties, but also\r\na violation of an undertaking given to the Court as is evident from the\r\naffidavits which have been filed by the Respondents in the Court. This\r\nstands fortified by the statement made by the Counsel for the Respondents\r\n(Defendants therein) in the suit which has been recorded in the Order dated\r\n21.09.2012 wherein the Respondents had undertaken to vacate the ground\r\nfloor of the said premises.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>20. The submission of the Respondents that the lawyer who appeared for\r\nthe Respondents had appeared for the Petitioner as well in the same case is a\r\ncomplete afterthought and is a mischievous argument which cannot be\r\nentertained by this Court. The Respondents kept quiet for five years. They\r\ndid not raise any issue regarding any fraud played on them for five years.\r\nLearned Counsel for the Respondents has further stated that the Petitioner\r\nhas criminal antecedents. This Court observes that the so-called FIR\r\nregistered against the Petitioner has resulted in the discharge of the\r\nPetitioner. In any event, the criminal antecedents of the Petitioner would be\r\nirrelevant for the purpose of contempt proceedings.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>21. This Court is now concerned with upholding the majesty of the law\r\nand the undertaking given to this Court to vacate the ground floor of the said\r\npremises. The underlying purpose of the law of contempt is meant to serve\r\npublic interest and build confidence in the judicial process. This flows from\r\nhow the functioning of a democratic society is sustained by the rule of law\r\nand wilful violation of the same would enable anarchy. The Supreme Court\r\nin the case of In Re: Vinay Chandra, (1995) 2 SCC 584, had delineated the\r\npurpose of the law of contempt in building confidence in the judicial\r\nprocess. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. The process of due course of administration of justice must remain\r\nunimpaired. Attempts to circumvent or undermine judicial decisions need to\r\nbe viewed seriously in order to ensure that the functioning of our country is\r\nunhindered, especially during turbulent times. It is only the rule of law\r\nwhich not only cements the civilised functioning of a country, but also\r\ndrives a country towards progress and development. Absence of rule of law\r\nor in the presence of utter disregard for the rule of law propels a country\r\ntowards inevitable ruin. In light of this, it is the duty of the Court to take a\r\nstrict view when there is non-compliance of an Order of the Courts, and\r\nCourts should not hesitate in wielding the sword of contempt when\r\ngrappling with a situation pertaining to wilful disobedience.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. In the instant case, a receipt of Rs.1 Crore signed by both the parties,\r\nwhich was also recorded in the Order dated 21.09.2012, was filed in the\r\nCourt. This Court notes that there was no whisper on the part of the\r\nRespondents stating that they have not received the remaining sum of Rs.80\r\nlakhs since the Order dated 21.09.2012 and that the said grievance has only\r\nbeen raised for the first time when the instant contempt petition was filed.\r\nThe feeble contention of the learned Counsel for the Respondents that the\r\nRespondents were not literate and could not understand the consequences of\r\nthe consent decree cannot be accepted at this point as it is observed that the\r\nRespondents were educated enough to comprehend the undertaking that they\r\nhad given to the Court. This Court does not appreciate the defences that are\r\nbeing raised by the Respondents to subvert the authority of the Courts.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. In view of the above, this Court is of the opinion that the Respondents <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">are guilty of the contempt of Court</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9ca9e4d8e2b67fbc0d0f7e547341d01b.png', '19e94211c6e3149b4c06fc4f1cdda641.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-06', 1, '', '', '2022-04-29 19:02:42', '2022-05-06 14:51:09'),
(1646, 'nDJoQdbXkSR9OvIbR0hS7dmZw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Test. S.125 CrPC | Husband Having Sufficient Means Obligated To Maintain Wife & Children, Can\'t Shirk Away Familial Responsibility: Delhi High Court ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jitendra Kumar Garg Vs Manju Garg.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.REV.P. 126 of 2022 decided on26 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Subramonium Prasad.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This petition has been filed under Sections 397/401 Cr.P.C.\r\nchallenging Order dated 09.11.2021 in case bearing M.T. 1358/2018\r\nwherein the Ld. Judge, Family Courts, North-East, Karkardooma, Delhi,\r\ndirected the Petitioner/Husband to pay an interim maintenance of Rs.\r\n20,000/- per month to the Respondent/Wife with effect from the date of\r\nfiling the petition, i.e. 17.12.2018.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts, in brief, leading up to the filing of the petition are as\r\nfollows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\na) It is stated that the parties were married on 10.07.1989 and two\r\nsons were born to them. Matrimonial disputes arose between the\r\nparties in 2013 and it has been alleged that the Respondent/Wife\r\ntreated the Petitioner/Husband with cruelty. Thereafter, the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Petitioner/Husband and the Respondent/Wife started residing\r\nseparately with the Petitioner living with his elder son and the\r\nRespondent living with the younger son.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>b) In December 2015, the Respondent/Wife allegedly forcibly\r\nentered the property of the Petitioner/Husband and started living\r\nin a portion of the house. In 2018, vide Settlement dated\r\n16.08.2018 (notarized on 21.08.2018), the Petitioner/Husband\r\nagreed to pay the Respondent/Wife a sum of Rs. 5,000/- per\r\nmonth.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\nc) On 17.12.2018, the Respondent/Wife filed a petition under\r\nSection 125 Cr.P.C., along with an application for interim\r\nmaintenance, wherein she alleged that she had been treated with\r\ncruelty and that the Petitioner/Husband was earning Rs.\r\n3,00,000/- per month. This was contested by the\r\nPetitioner/Husband who stated that the Respondent/Wife was\r\nearning Rs. 40,000/- per month and that he himself was an auto\r\ndriver.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>d) Vide Mediation Settlement on 13.01.2020, it was agreed that the\r\nPetitioner/Husband would continue giving an amount of Rs.\r\n5,000/- to the Respondent/Wife. However, vide impugned Order\r\ndated 09.11.2021, the Ld. Family Court directed the\r\nPetitioner/Husband to pay a sum of Rs. 20,000/- to the\r\nRespondent/Wife per month as an interim maintenance.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>e) Aggrieved by the same, the Petitioner/Husband has now\r\napproached this Court challenging the same by way of the\r\ninstant revision petition.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Mr. Rajinder Mathur, learned Counsel appearing for the\r\nPetitioner/Husband, submits that a settlement dated 16.08.2018 between the\r\nPetitioner and the Respondent had already been arrived at wherein the\r\nPetitioner had agreed to pay a sum of Rs. 5,000 per month towards the\r\nmaintenance of the Respondent. He states that the petition filed by the\r\nRespondent/Wife under Section 125 Cr.P.C. is replete with falsities as she\r\nalleges that the Petitioner/Husband is earning more than Rs. 3 lakhs in her\r\nmain petition, but states that he is earning Rs. 50,000/- in her interim\r\nmaintenance application.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Mr. Mathur submits that in reality, the Respondent/Wife is a money\r\nlender and is earning about Rs. 40,000/-, and that the Petitioner/Husband is\r\nmerely an auto driver earning about Rs. 12,000/- per month and not a\r\nbusinessman as has been alleged by the Respondent/Wife. He states that the\r\nimpugned Order dated 09.11.2021 is erroneous and is liable to set aside on\r\nthe ground that it states that no payments have been made till date which is\r\ncontrary to the fact that the Petitioner herein has been paying Rs. 5,000/- per\r\nmonth to the Respondent in compliance of the settlement deed dated\r\n16.08.2018. He further states that the Ld. Family Court also erred in not\r\nconsidering the Mediation Settlement dated 13.01.2020 wherein the\r\nRespondent/Wife had agreed to accept a payment of Rs. 5,000/- per month.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The learned Counsel appearing for the Petitioner/Husband, therefore,\r\nstates that the Ld. Family Court has erred in not taking into account either\r\nthe payments that were being made regularly by the Petitioner/Husband to\r\nthe Respondent/Wife in compliance of both the settlements between the\r\nparties. He further submits that the impugned Order dated 09.11.2021 should\r\nbe set aside on account of the fact that the Petitioner/Husband is an auto&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">driver earning only Rs. 12,000/- per month and, therefore, cannot pay the\r\nmonthly maintenance of Rs. 20,000/- as has been directed vide Order dated\r\n09.11.2021.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Section 125 Cr.P.C. is a provision that has been enacted to ensure that\r\nwomen and children are provided maintenance by the husband so as to\r\nprotect them from a life of potential vagrancy and destitution. The Supreme\r\nCourt has consistently upheld that the conceptualisation of Section 125 was\r\nmeant to ameliorate the financial suffering of a woman who had left her\r\nmatrimonial home; it is a means to secure the woman’s sustenance, along\r\nwith that of the children, if any. The statutory provision entails that if the\r\nhusband has sufficient means, he is obligated to maintain his wife and\r\nchildren, and not shirk away from his moral and familial responsibilities.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Therefore, while adjudicating upon a matter of maintenance, it is\r\nimportant for the Courts to bear in mind that the same was enumerated to\r\nfurther the cause of social justice and that the interpretation of this Section\r\nshould be done in a manner to prevent a situation wherein the wife or\r\nchildren are inadvertently nudged into vagrancy and destitution. It is meant\r\nto provide a speedy remedy for the supply of food, clothing and shelter to\r\nthe deserted wife.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Furthermore, the scope of interference in a revision petition under\r\nSections 397/401 Cr.P.C. read with Section 482 Cr.P.C. is narrow and can\r\nonly be done if a situation arises wherein the impugned Order is replete with\r\nlegal infirmities and is unconscionable to the rule of law<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. It is pertinent to note at this juncture that the maintenance which has\r\nbeen awarded vide the impugned Order dated 09.11.2021 is in the form of\r\ninterim maintenance. Judicial discipline, therefore, circumspects this Court\r\nfrom interfering in an Order rendered by the Courts below and only justifies\r\ninterference if the Order is egregious in nature and suffers from legal\r\nperversity. It is well settled that unless the said Orders are perverse and have\r\nbeen passed on nil evidence, the High Court must be slow in interfering in\r\nthe decisions of the Courts below.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">13. A perusal of the impugned Order dated 09.11.2021 indicates that the\r\nLd. Family Court has astutely considered the affidavits of income, assets and\r\nliabilities as well as other documents filed by both the parties before arriving\r\nat the decision to direct the Petitioner/Husband to pay a sum of Rs. 20,000/-\r\nper month as interim maintenance. The Ld. Family Court has taken\r\ncognizance of the said settlement deed and noted that no material was placed&nbsp;</span><span style=\"font-size: 12pt;\">on record to substantiate the submission of the Petitioner/Husband that a\r\nregular interim maintenance of Rs. 5,000/- was being paid to the\r\nRespondent/Wife. Furthermore, the Ld. Family Court has also gone through\r\nthe Petitioner/Husband’s bank statements and copy of Income Tax Returns\r\nas on 31.03.2020, and has found that the Petitioner/Husband earned Rs.\r\n5,17,395/- in the financial year 2019-2020.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>14. Moreover, it was also found by the Ld. Family Court that in the\r\nassessment year 2020-2021, the Petitioner/Husband had sales of Rs.\r\n85,93,417/- and also had a miscellaneous income of Rs. 48,910/-.\r\nAccordingly, the Ld. Family Court came to the conclusion that the\r\nPetitioner/Husband had a monthly income of Rs. 60,000/- and, therefore, had\r\nthe wherewithal to pay maintenance to the Respondent/Wife. In consequence\r\nof the same, it was directed that the Respondent/Wife was entitled to an\r\ninterim maintenance of Rs. 20,000/- per month from the date of filing of the\r\npetition, i.e. 17.12.2018.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>15. In view of the above, this Court is of the opinion that the impugned\r\nOrder dated 09.11.2021 passed by the Ld. Family Court is well-reasoned and\r\ndoes not betray any legal infirmity. This Court, therefore, does not find any\r\nreason that would warrant interference in the Order passed by the Ld. Family\r\nCourt.&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '53bb918fbd8c56e2fc0a1e19d37815fe.jpeg', 'e4f03338ccbd2944d29c55ba7e4e4c44.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-29', 0, '', '', '2022-04-29 19:08:59', '2022-04-29 08:39:02');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1647, 'wULfEff5HanWDyorM3jEBOPtB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Correctness of a judicial order violated by the contemnor can not be decided In contempt proceedings. Andhra Pradesh High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ajay Kumar Parasaramka Vs Pradeep Kumar Rath.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Contempt Case 947 of 2021 decided 13 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Satyanarayana Murthy.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This contempt case is filed under Sections 10 to 12 of\r\nContempt of Courts Act, 1971, by the petitioners, for willful\r\ndisobedience of the order passed by the High Court in W.P.No.8598\r\nof 2014 dated 21.03.2014.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioners filed W.P.No.8598 of 2014 to issue writ of\r\nmandamus declaring the action of the Respondents in taking steps\r\nto dispossess the petitioners from the land in Sy.No.29/1 of\r\nThunglam Village, Gajuwaka Mandal, Visakhapatnam District as\r\nillegal, arbitrary and it is in violation of Principles of natural justice\r\nand consequently direct the respondents not to dispossess the\r\npetitioners from the land in Sy.No.29/1 of Thunglam Village,\r\nGajuwaka Mandal, Visakhapatnam District without following due\r\nprocedure under law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">After the above interim order is passed in W.P.No.8598 of\r\n2014 dated 21.03.2014, the respondents intentionally came to the\r\npetitioners land with J.C.B. Machines on 13.06.2021 at about 5.45 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">a.m and started demolishing the compound wall forcibly though\r\nthey had knowledge that the interim order was passed on\r\n21.03.2014. The respondents intentionally made an attempt to\r\ndemolish the buildings of these petitioners and demolished part of\r\nthe compound wall in violation of the orders passed by this Court.\r\nTo establish demolition, the petitioners placed on record positive\r\nphotographs taken at the time of demolition of compound wall and\r\ninterference with possession and enjoyment, despite the direction\r\nissued by this Court. The photographs would clinchingly establish\r\nthe intentional and deliberate violation of the orders passed by the\r\nHigh Court. The news item published in the newspaper is also\r\nplaced on record to establish that the demolition of part of the\r\nbuilding, despite the interim order of the High Court in\r\nW.P.No.8598 of 2014 dated 21.03.2014.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>It is contended that, prior to demolition, during subsistence\r\nof the interim order in W.P.No.8598 of 2014 dated 21.03.2014, no\r\nnotice was issued to these petitioners proposing to take action for\r\ndemolition of the compound wall and no intimation was also given\r\nto these petitioners. The respondents have gone to the extent of\r\ndirecting the electricity authorities to disconnect the power supply\r\nto the premises and accordingly, the authorities disconnected the\r\npower supply, on 13.06.2021 without any intimation. It is\r\ncontended that, Respondent Nos.6 & 7 personally supervised the\r\ndemolition and in the said demolition, valuable goods stored in the\r\npremises were lost. Respondent Nos. 6 & 7 proclaimed that, it is a\r\ngovernment property without any notice or determination by\r\nfollowing procedure established under law in high-handed manner\r\nat the instance of land grabbers initiated the above action of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">demolition in violation of the orders passed by the High Court.\r\nAfter demolishing the compound wall, Respondent Nos. 6 & 7\r\ninsisted the petitioners to sell the property to the persons indicated\r\nby them, which itself is sufficient to establish that the respondents\r\nintentionally at the instance of third parties demolished the\r\ncompound wall of these petitioners in violation of the interim order\r\nin W.P.No.8598 of 2014 dated 21.03.2014. Thus, the respondents/\r\ncontemnors violated the order of this Court intentionally and\r\ndeliberately without any respect of the order of this Court and\r\nrequested to take appropriate action against these\r\nrespondents/contemnors</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Turning to the facts of the present case, this Court passed\r\nan interim order in W.P.No.8598 of 2014 dated 21.03.2014\r\ndirecting the respondents not to dispossess the petitioners from\r\nthe land to an extent of Ac.5-42 cents in Survey No.29/ situated at\r\nThunglam Village, Gajuwaka Mandal, Visakhapatnam District. The\r\ncommunication of the order to the respondents by the Court is not\r\ndenied by the respondents. The respondents in their counter\r\naffidavits raised a different contention. However, the specific plea\r\nof the Respondent No.4 is that, the land was allotted to railways\r\nwhich is covered by wild growth, the petitioners occupied the said\r\nland unlawfully and illegally, thereby the respondents/revenue\r\nauthorities along with the railway department demolished the\r\nunauthorized construction in Thunglam Village and erected\r\ncaution boards stating that “the land is Government Land” which\r\nis not related to APIIC and APIIC officials have not participated in\r\nthe eviction process. Therefore, Respondent No.4 is not liable for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contempt of court action, as Respondent No.4 is unconcerned with\r\nthe subject land in dispute.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the present facts of the case, Respondent No.7 – Tahsildar\r\nwith scant respect to the order passed by this Court dated\r\n21.03.2014, demolished the compound wall on 13.06.2021 with a\r\nview to remove the alleged encroachments. The admission made in\r\nParagraph No.6 of the counter affidavit filed by Respondent no.7 is\r\nsuffice to hold that, Respondent No.7 – Tahsildar violated or\r\ndisobeyed the order of this Court willfully, knowing the illconsequences that flow from such violation i.e. conscious violation\r\nof the order of this Court dated 21.03.2014, which amounts to\r\nviolation of Rule of Law. Therefore, the act of Respondent No.7 –\r\nTahsildar by his disorderly conduct caused serious damage to the\r\ninstitution of justice administration. Such conduct, with reference\r\nto its adverse effects and consequences, can be discernibly\r\nclassified into two categories one which has a transient effect on\r\nthe system and/or the person concerned and is likely to wither\r\naway by the passage of time while the other causes permanent\r\ndamage to the institution and administration of justice</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>When once an order is passed, it is the duty of the\r\nauthorities to implement the same without giving any\r\ninterpretation and if the order is contrary to law, they are at liberty\r\nfile appropriate appeal before the appellate authority. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The same view is expressed by the Hon\'ble Apex Court in\r\nPrithawi Nath Ram vs. State of Jharkhand and others, where\r\nthe Court held that, while dealing with an application for\r\ncontempt, the Court is really concerned with the question whether\r\nthe earlier decision which has received its finality had been\r\ncomplied with or not. It would not be permissible for a Court to\r\nexamine the correctness of the earlier decision which had not been\r\nassailed and to take the view different than what was taken in the\r\nearlier decision If any party concerned is aggrieved by the order\r\nwhich in its opinion is wrong or against rules or its implementation\r\nis neither practicable nor feasible, it should always either approach\r\nto the Court that passed the order or invoke jurisdiction of the\r\nAppellate Court. Rightness or wrongness of the order cannot be\r\nurged in contempt proceedings. Right or wrong the order has to be\r\nobeyed. Flouting an order of the Court would render the party\r\nliable for contempt. While dealing with an application for contempt\r\nthe Court cannot traverse beyond the order, non-compliance of\r\nwhich is alleged. In other words, it cannot say what should not\r\nhave been done or what should have been done. It cannot traverse\r\nbeyond the order. It cannot test correctness or otherwise of the\r\norder or give additional direction or delete any direction. That\r\nwould be exercising review jurisdiction while dealing with an\r\napplication for initiation of contempt proceedings. The same would\r\nbe impermissible and indefensible.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In The State of Bihar vs. Rani Sonabati Kumari, the\r\nHon?ble Supreme Court while dealing with violation of order passed <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under Order XXXIX Rules 1 & 2 of Civil Procedure Court, held\r\nthat, a party proceeded against Order XXXIX Rule 2(3) of C.P.C for\r\ndisobedience of an order of injunction cannot be held to have\r\nwillfully disobeyed the order provided two conditions are satisfied\r\nviz., (1) that the order was ambiguous and was reasonably capable\r\nof more than one interpretation (2) that the party being proceeded\r\nagainst in fact did not intend to disobey the order, but conducted\r\nhimself in accordance with his interpretation of the order. The\r\nquestion whether a party has understood an order in a particular\r\nmanner and has conducted himself in accordance with such a\r\nconstruction is primarily one of-fact, and where the materials\r\nbefore the Court do not support such a state of affairs, the Court\r\ncannot attribute an innocent intention based on presumptions, for\r\nthe only reason, that ingenuity of Counsel can discover\r\nequivocation in the order which is the subject of enforcement.\r\nThough undoubtedly proceedings under Order XXXIX Rule 2(3) of\r\nC.P.C have a punitive aspect – as is evident from the contemnor\r\nbeing liable to be ordered to be detained in civil prison, they are in\r\nsubstance designed to effect the enforcement of or to execute the\r\norder. This is clearly brought out by their identity with the\r\nprocedure prescribed by Order XXI Rule 32 of C.P.C for execution\r\nof a decree for permanent injunction. No doubt the State\r\nGovernment not being a natural person could not be ordered to be\r\ndetained in civil prison, On the analogy of Corporations; for which\r\nspecial provision is made in Order XXXIX Rule V C.P.C, but\r\nbeyond that, both when a decree for a permanent injunction is\r\nexecuted and when an order of temporary injunction is enforced\r\nthe liability of the State Government to be proceeded against\r\nappears to us clear.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Applying the principle laid down by the Hon\'ble Supreme\r\nCourt to the present facts of the case, this Court can safely\r\nconclude that, Respondent No.7 – Tahsildar, in utter disobedience\r\nof the order passed by this Court dated 21.03.2014, consciously\r\nviolated the order and demolished the compound wall on the\r\npretext of removal of encroachments, despite subsistence of order\r\npassed by this Court. Such conduct would not only impede the\r\nrule of law, but also cause serious damage to the judicial\r\ninstitution and judicial administration. Therefore, such conduct of\r\nRespondent No.7 cannot be encouraged by this Court, taking\r\nlenient view against such person who caused serious damage to\r\nthe judicial institution itself.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>As discussed above, and in view of the findings recorded by\r\nthis Court in the above paragraphs, Respondent No.7 – Tahsildar\r\nis liable for punishment as per Section 12 of the Contempt of\r\nCourts Act, 1971, and thereby he is punished sentencing him to\r\nundergo simple imprisonment for a term of six (06) months and to\r\npay a fine of Rs.2,000/- (Rupees two thousand only). In the event\r\nof failure to pay fine of Rs.2,000/-, Registrar (Judicial) is directed\r\nto send copy of the order to the District Collector, Visakhapatnam\r\nfor recovery of amount of fine under the Andhra Pradesh Revenue\r\nRecovery Act, 1864 and by following procedure as per law.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the result, contempt case is partly allowed, directing\r\nRespondent No.7 – Tahsildar, Gajuwaka Mandal, Visakhapatnam\r\nDistrict to undergo simple imprisonment for a term of six (06)\r\nmonths and to pay a fine of Rs.2,000/- (Rupees two thousand\r\nonly). In the event of failure to pay fine of Rs.2,000/-, Registrar\r\n(Judicial) is directed to send copy of the order to the District <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Collector, Visakhapatnam for recovery of amount of fine under the\r\nAndhra Pradesh Revenue Recovery Act, 1864 and by following\r\nprocedure as per law.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\nRespondent No.7 – Tahsildar, Gajuwaka Mandal,\r\nVisakhapatnam District is directed to appear before the Registrar\r\n(Judicial), High Court of Andhra Pradesh, on 18.04.2022. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">On his\r\nappearance, the Registrar (Judicial) shall commit him to civil\r\nprison in accordance with the order passed above.\r\nConsequently, miscellaneous applications pending if any,\r\nshall stand closed.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '26c1dae75187e73f9f65a76068d494b2.jpg', '285d6e9f63c35195a590fb046d0e55fd.docx', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-01', 1, '', '', '2022-04-29 19:18:57', '2022-05-01 12:59:05'),
(1649, 'L5tyu8atYAGbqHZov8REvASJ6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Madras High Court declares Mother Nature as a Living Being having legal entity, juristic/juridical/moral person having rights akin to fundamental rights. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>A.Periyaaruppan Vs The Principal Sectary to Government and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P(MD) 18636 of 2013 and 3070 of 2020 decided on 19 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Srimathy.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3.The brief facts of the case are that the petitioner has served in the\r\nRevenue Department for the past 35 years and lastly served as Distillery Officer\r\nin the cadre of Deputy Collector in the Rajashree Sugars and Chemicals Private\r\nLimited, Varadaraj Nagar, Periyakulam Taluk, Theni District. The petitioner\r\nattained superannuation on 28.02.2006 and was not allowed to retire, but was\r\nplaced under suspension because of the pendency of the disciplinary proceedings.\r\nIn G.O. (2D) No.159, Revenue Department, dated 06.04.2009, the Government </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">decided to impose the punishment of compulsory retirement for the proven\r\ncharges. In G.O. (2D) No.364, Revenue Department, dated 17.08.2012, the\r\nGovernment issued orders that the petitioner is eligible for 2/3rd of pension and\r\nDCRG shall be paid. The 1/3rd of the eligible pension and the retirement gratuity\r\nwas reduced as penalty.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. The contention of the petitioner is that the Government did not provide\r\nany opportunity before imposing the punishment. Based on the above said G.O.,\r\nthe Joint Commissioner, Revenue Administration, Chennai sent pension proposals\r\nto the Accountant General. Thereafter, the petitioner received 2/3rd of pension\r\nand reduced DCRG. Aggrieved over the same, the present Writ Petitions are\r\nfiled.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5. The contention of the petitioner is that this hard punishment is imposed\r\non the petitioner for carrying out the orders of the then Assistant Settlement\r\nOfficer, Madurai, dated 24.07.1996, passed in S.R.11/(a)3/95. The Assistant\r\nSettlement Officer is a Statutory Authority and also Quasi-Judicial Officer. He\r\ndirected the petitioner to grant patta to an extent of 2873-03 hectares in Plot No. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">36, i.e., S.No.280 part of Megamalai Village under Section 11 A of the Tamil\r\nNadu Estates (Abolition and Conversion into Ryotwari) Act, 1948. The petitioner\r\nhas carried out the orders of the Assistant Settlement Officer in Proceedings No.\r\n4264/95/A3, dated 25.08.1996. The further contention of the petitioner is that the\r\nAssistant Settlement Officer, the quasi judicial authority passed orders directing\r\nthe petitioner to grant patta, as per his proceedings, dated 24.07.1996, in turn\r\nbased on the orders, dated 31.03.1995, of the Director of Survey and Settlement,\r\nChennai, as per his proceedings No.R.D.No.8/1991, treating the land in question\r\nas Ryoti.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. The grievance of the petitioner is that the Director of Survey and\r\nSettlement, Chennai, who is the Head of the Department, who treated land in\r\nquestion as Ryoti has been left scot free, then, the Assistant Settlement Officer,\r\nMadurai, who directed the petitioner to grant patta has also been left scot free by\r\nquashing the show cause notice issued by the Government in W.P.(MD)No.10682\r\nof 2007. Accepting the order of this Court, the Government issued G.O. (2D) No.\r\n299, Revenue Department, dated 14.05.2010, dropping the show cause notice\r\nissued against the Assistant Settlement Officer and it has become final. But the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner, who carried out the orders of the superior officials alone was taken for\r\ntask and unimaginably by cutting the 1/3rd of pension and DCRG.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. Subsequently based on the orders, dated 26.08.1996 of the Settlement\r\nOfficer, Thanjavur and as per the directions, dated 29.08.1996, of the District\r\nCollector, Madurai, the patta granted in respect of 2877.03.0 hectare in S.No.280\r\nof Megamalai Village was cancelled and the necessary entries were made in the\r\nVillage accounts. Therefore, there is no monetary loss. In such circumstances,\r\nthe punishment imposed on the petitioner is extremely harsh and the petitioner\r\nprayed to quash the impugned order of punishment.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8. The respondents have filed a counter affidavit stating that the petitioner\r\nwas posted as Tahsildar in Andipatti Taluk Office, Theni District and he worked\r\nfrom 25.12.1995 till 31.12.1996. During such period, he had illegally granted\r\npattas to the land belonging to the Government which is worth crores of rupees.\r\nThe land in question Survey No.280 is situated in Megamalai Village and has\r\nbeen classified as “Forest Poramboke Land” and patta cannot be granted to any\r\nindividuals in respect of the said survey lands including the legal heirs of Kambal </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">@ Veeraiah Chettiar. The petitioner was a Tahsildar, while conducting the legal\r\ninspection by the Assistant Settlement Officer, dated 06.07.1996, the petitioner\r\nbeing a Tahsildar who is the Custodian of Government lands did not raise any\r\nobjections either orally or in writing, by stating the said land were forest lands in\r\nnature and patta cannot be granted in favour of any individual. But the petitioner\r\nhas issued orders based on the proceedings, dated 24.07.1996, in collusion with\r\nAssistant Settlement Officer, namely Soundarapandian, with mala fide the\r\nintension and the petitioner has directed the Deputy Inspector of Survey and\r\nMaintenance Firka Surveyor to prepare the sub-division records, \'B\' sketch to a\r\nlarge extent of 2877 hectares of forest land in S.No.280 for handing over the said\r\nlands within 8 days from the date of receipt of instructions, knowing very well\r\nthat the lands marked as forest and the orders of the Assistant Settlement Officer\r\nwere not accordance to law and the said work cannot be done or completed within\r\neight days period. Thereby, the petitioner approved the land without any factual\r\ninspection and carried out changes in the “Village and Thaluk Accounts” and\r\nfailed to take steps to protect the lands which are all forest lands. The petitioner\r\nbeing a responsible Government official, duty bound to protect the lands but\r\nfailed to do so. Thereafter, without verifying any records, he passed an order </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">granting patta to the forest land in favour of private individuals who were legal\r\nheirs of Kambal @ Veeraiah Chettiyar on 25.08.1996.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. However the respondents submitted that the officials who are involved\r\nin the said patta proceedings faced disciplinary proceedings and the Government\r\nhad initiated action against all the delinquents. But some of the proceedings were\r\nquashed by the High Court, some of the proceedings were upheld by the High\r\nCourt. Wherever the proceedings were quashed or wherever the writ petitions\r\nwere allowed, in order to obey the orders of the High Court the disciplinary\r\nproceedings were dropped. The petitioner cannot claim to treat on par with them\r\nsince in each case there is some difference. In the case of the said Muthusamy the\r\nHigh Court directed to conduct re-enquiry within a stipulated time since the\r\ndelinquent was not granted opportunity, since the re-enquiry was not conducted\r\nwithin the said stipulated time, the punishment of dismissal was modified as\r\ncompulsory retirement, but the same was quashed. Likewise the Soundara\r\nPandian disciplinary proceedings were dropped based on the order of the Court.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The contention of the respondents is that the petitioner ought to have brought to\r\nthe knowledge to the higher officials that the land is “forest land” and patta\r\ncannot be issued to individuals. The plea of the petitioner that he had followed the\r\norders of the higher officials cannot be accepted since the petitioner is having a\r\nduty to protect the forest land. Moreover the petitioner has issued patta within a\r\nperiod of 8 days from the date of the order of the Assistant Settlement Officer and\r\nalso issued instructions to Deputy Inspector of Survey and Maintenance Firka\r\nsurveyor to prepare sub-division records and \'B\' sketches within 8 days and\r\ncarried out the changes in respective accounts, hence this would be evident that\r\nthe petitioner has acted for personal gains and therefore prayed to dismiss the writ\r\npetition.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18.The mother nature ought to be preserved. Indiscriminate destruction or\r\nchange is leading to several complications in ecosystem, ultimately is\r\nendangering the very existence of the animals, flora and fauna, forests, rivers,\r\nlakes, water bodies, mountains, glaciers, air and of course human. Strangely the\r\ndestruction is carried on by few humans. Any such act ought to be checked at all\r\nlevels. A report states, in India protected areas (like National Parks and\r\nSanctuaries) notified under the Wild Life Protection Act 1972 occupy less than\r\n5% of India’s geographical area. Infact this 5% provide ecosystem services to the\r\nhuman survival. Rest of 95% of India’s geographical area is available for humans.\r\nInspite of the same it is unknown why the human is so desperate to intrude in the\r\nsaid 5% area. The indiscriminate activities in the said 5% area are causing huge\r\ndamage, which is irreversible.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19.The natural environment is part of basic human rights of “right to life\r\nitself”. A report indicates 60 per cent of earth\'s ecosystems are experiencing<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>terminal loss. Whether it is Amazon forest, sea life, elephants and tigers, rivers\r\nand lakes, glaciers or aquifers is strongly impacting human life. The few\r\nremaining original forests - our biodiversity treasury- are being destroyed to make\r\nway for huge mines or dams or lucrative real estate projects. And we attempt to\r\npacify the destruction with the words like \'compensatory afforestation\' and it is\r\nlike giving sanction to kill all wild tigers and replace them by farming the same\r\npopulation in captivity, which is absolutely against “Nature”.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20.Under the guise of sustainable development the human should not\r\ndestroy the nature. If sustainable development finishes off all our biodiversity and\r\nresources, then it is not sustainable development it is sustainable destruction. The\r\nphrases like \'sustainable development\', \'the polluter pays\', \'the precautionary\r\nprinciple\' shall not be allowed anymore.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21.As stated in a recent judgment dated 30.03.2017 rendered by\r\nUttaranchal High Court in Lalit Miglani vs State of Uttarakhand And Others in\r\nWrit Petition (PIL) No.140 of 2015, the “Nature\'s Rights Commission” should be\r\nformed to protect the Nature. The judgment has extensively dealt with the issue of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">protecting nature and its resources.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23.The past generations have handed over the \'Mother Earth\' to us in its\r\npristine glory and we are morally bound to hand over the same Mother Earth to\r\nthe next generation. It is right time to declare / confer juristic status to the\r\n“Mother Nature”. Therefore This Court by invoking “parens patriae jurisdiction”,\r\n(parent of the nation jurisdiction) is hereby declaring the “Mother Nature” as a\r\n“Living Being” having legal entity / legal person / juristic person / juridical\r\nperson / moral person / artificial person having the status of a legal person, with\r\nall corresponding rights, duties and liabilities of a living person, in order to\r\npreserve and conserve them. They are also accorded the rights akin to\r\nfundamental rights / legal rights / constitutional rights for their survival, safety,\r\nsustenance and resurgence in order to maintain its status and also to promote their\r\nhealth and wellbeing. The State Government and the Central Government are\r\ndirected to protect the “Mother Nature” and take appropriate steps to protect\r\nMother Nature in all possible ways.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. Since in the present case the petitioner has issued patta to the\r\nMegamalai forest land for 2877.03.0 hectares of land in S.No.280 the petitioner\r\nought to be punished. As stated earlier the co-delinquent punishment were either <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">quashed or dropped based on this Court orders, since the patta were cancelled\r\nsubsequently based on the orders, dated 26.08.1996 of the Settlement Officer,\r\nThanjavur and as per the directions, dated 29.08.1996, of the District Collector,\r\nMadurai, the patta granted in respect of 2877.03.0 hectare of land in S.No.280\r\nMegamalai Village was cancelled and the necessary entries were made in the\r\nVillage accounts, the punishment ought to be modified. Therefore, this Court is of\r\nthe considered opinion that the punishment of compulsory retirement ought to be\r\nmodified as stoppage of increment for six months without cumulative effect and\r\nconsequential monetary benefits shall be conferred on the petitioner. This\r\npunishment is imposed for the act done against mother nature. The respondents\r\nare directed to implement this punishment within a period of four weeks from the\r\ndate of receipt of the copy of the order.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>25. With the above direction, the Writ Petitions are allowed. There shall be\r\nno order as to costs. Consequently, connected miscellaneous petitions are closed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '98ddab705076ede83fa039b29d79fa3e.jpeg', '883c3946551b18747edc9c6ad458bc13.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-03', 1, '', '', '2022-05-01 18:08:30', '2022-05-03 16:32:34');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1648, 'sbDRYftMeIomY2nFtGJ9gkgnQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Test. Levy Of GST On Mining Royalty And Allied Charges: Jharkhand High Court Grants Interim Protection ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/s Mandhan Minerals Corporation Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P.(T) 432 of 2021 decided on 20 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Aparesh Kumar Singh and Justice Deepak Roshan. &nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The writ petitions at serial no. 40 to 50 [W.P.(T) No. 855 of 2022,\r\nW.P.(T) No. 897 of 2022, W.P.(T) No. 903 of 2022, W.P.(T) No. 926 of\r\n2022, W.P.(T) No. 927 of 2022, W.P.(T) No. 933 of 2022, W.P.(T) No.\r\n955 of 2022, W.P.(T) No. 974 of 2022, W.P.(T) No. 979 of 2022, W.P.(T)\r\nNo. 986 of 2022 and W.P.(T) No. 1282 of 2022] also relate to the&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">common issue of levy of Service Tax and / or GST on royalty and\r\nDistrict Mineral Fund (DMF). However, some of the writ petitions such\r\nas from Serial No. 41 to 44 [W.P.(T) No. 897 of 2022, W.P.(T) No. 903\r\nof 2022, W.P.(T) No. 926 of 2022, W.P.(T) No. 927 of 2022] relate\r\nexclusively to levy of service tax on royalty. Therefore, all these writ\r\npetitions are being tagged together. In these cases, no interim order has\r\nbeen passed on the levy of service tax or GST on royalty and DMF. By\r\nthe order of this Court dated 02.03.2021 passed in W.P.(T) No. 3878 of\r\n2020 in the case of Sunita Ganguly Vrs. Principal Commissioner,\r\nCentral GST and Central Excise, Ranchi &amp; others this Court had been\r\npleased to grant interim protection in respect of levy of service tax on\r\nroyalty in the respective petitions. Following the said interim order,\r\nsimilar interim relief has been granted to other writ petitioner so far as\r\nlevy of service tax on royalty and DMF is concerned. This Court had\r\nhowever refused to grant interim protection so far as levy of GST on\r\nroyalty and DMF is concerned at that stage. Later on in view of the order\r\npassed by the Apex Court in the case of M/s Lakhwinder Singh Vrs.\r\nUnion of India &amp; others in Writ petition (Civil) No. 1076 of 2021 dated\r\n04.10.2021 granting interim stay on payment of GST for grant of mining\r\nlease / royalty to the petitioners, this Court also granted similar relief to\r\nseveral writ petitioners such as W.P(T) No. 4609 of 2021 in the case of\r\nM/s Ratan Black Stone, Sahibganj Vrs. Union of India through\r\nPrincipal Commissioner, Central GST and Central Excise &amp; others\r\nand other analogous cases such as W.P(T) No. 4510 of 2021. When the\r\ncase of M/s Mandhan Minerals Corporation in W.P.(T) No. 432 of\r\n2021 was taken up before this Court on 24.02.2022, this Court was\r\napprised of the judgment dated 04.01.2022 passed in the case of M/s\r\nLakhwinder Singh(supra) wherein the Apex Court had refused to\r\nentertain the petition under Article 32 of the Constitution of India at the\r\nfirst instance and relegated the petitioners to avail of the alternative and\r\nefficacious remedy before the concerned High Courts under Article 226\r\nof the Constitution of India. The petition was dismissed leaving it open\r\nto the petitioners to pursue their remedies in accordance with law. In this\r\nbackground the present batch of writ petitions have been posted for\r\nconsideration on the continuation of the interim relief granted to them\r\nearlier, so far as levy of GST on royalty and DMF is concerned. Some\r\nother fresh writ petitions have by now come on board, which have been\r\ntagged together by the instant order also on the same issue.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. In the respective writ petitions preferred by learned Senior\r\nCounsel Mr Biren Poddar and learned counsel Mr. Sumeet Gadodia, the\r\npetitioners have laid challenge to the show cause notice/ notices issued\r\nby the Respondent Authorities directing them to furnish data relating to\r\npayment of royalty against licensing services for right to use minerals\r\nincluding exploration and evaluation for different periods concerning\r\nlevy of GST on royalty. In some of the writ petitions petitioners have\r\nsought declaration that royalty is not a payment in respect of a taxable\r\nservice and as such there is no liability to pay GST on royalty and DMF.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. Learned counsel for the petitioners have pressed the prayer for\r\ninterim protection from levy of GST on royalty and DMF or\r\ncontinuation of the interim protection granted earlier in some of the writ\r\npetitions based on the following plea:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The sheet anchor of the case of the petitioners is that royalty is in\r\nthe nature of a “Tax” or profit pendre and cannot be termed as a\r\nconsideration towards supply of services in terms of Section 15 of\r\nthe GST Act. They have placed reliance on the case of India\r\nCement Ltd. &amp; others Vrs. State of Tamil Nadu &amp; others reported\r\nin 1990 (1) SCC 12 rendered by the 7 Judges Constitution Bench\r\nof the Apex Court where in it has been held that royalty is a tax.\r\nLearned counsel for the petitioners submit that in view of the\r\nopinion of the Apex Court in the case of State of W.B. Vrs.\r\nKesoram Industries Ltd &amp; others reported in 2004(10) SCC 201\r\nrendered by a 5 Judges Constitution Bench of the Apex Court, the\r\nvery question whether royalty is a tax or not, is pending\r\nconsideration before a 9 Judges Constitution Bench of the Apex\r\nCourt in view of the reference made in the case of Mineral Area\r\nDevelopment Authority &amp; others Vrs. Steel Authority of India &amp;\r\nothers reported in 2011(4) SCC 450. Till the issue is\r\nauthoritatively decided by the 9 Judges Bench, the ratio rendered\r\nby the Apex Court by a 7 Judges Constitution Bench in the case of\r\nIndia Cement (supra) holds the field.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) Learned counsel for the petitioners have drawn the attention of\r\nthis Court to the provisions of Article 366 (12 A) of the\r\nConstitution of India, which defines “Goods and Services Tax”.\r\nArticle 366 (12) defines Taxation and includes the imposition of\r\nany tax or impost. Reliance is also placed upon Article 246 A of\r\nthe Constitution of India inserted by 101st Constitutional&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Amendment where under special provisions has been made in\r\nrespect of Goods and Service Tax.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) Learned counsel for the petitioners have also placed reliance upon\r\nthe relevant provisions of the CGST Act such as Section 15, which\r\nprovides for value of taxable supply. However, the basic plea of\r\nthe petitioners is that royalty being a tax cannot be the price paid\r\nfor any supply of services so to say, conceived under the GST Act\r\nfor leasing out the minerals to the writ petitioners / lessee within\r\nthe meaning of the expression used under Schedule II of the Act.\r\nA Tax in the nature of GST cannot be imposed on royalty, which\r\nin itself has been held to be tax by the Apex Court in the case of\r\nIndia Cement (supra).</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iv) Learned counsel for the petitioners have also referred to the\r\nobservations of the Apex Court relying upon the classic exposition\r\nof Latham CJ in Matthews Vrs. Chicory Marketing Board in the\r\ncase of Dewan Chand Builders &amp; Contractors Vrs. Union of\r\nIndia &amp; Ors. reported in 2012(1) SC 101. The Apex Court in the\r\nsaid case has relied upon the Constitution Bench judgment in the\r\ncase of Hingir Rampur Coal Co. Ltd. Vrs. State of Orissa relating\r\nto the challenge to the constitutional validity of the Orissa Mining\r\nArea Development Fund Act, 1952 levying cess upon the\r\npetitioner colliery wherein the different features of “tax”, “a fee”\r\nand “cess” has been dealt with. A ‘tax’ as per Latham CJ “is a\r\ncompulsory exaction of money by public authority for public\r\npurposes enforceable by law, and is not payment for services\r\nrendered”.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(v) They have also referred to the judgment rendered by the Apex\r\nCourt in the case of Commissioner of Income Tax, Udaipur,\r\nRajasthan Vrs. Mcdowell and Company Limited reported in\r\n(2009) 10 SCC 755, para 21 and 22, wherein it has been held that\r\n“Tax”, “duty”, “cess” or “fee” constituting a class denotes to\r\nvarious kinds of imposts by State in its sovereign power of\r\ntaxation to raise revenue for the State.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(vi) Another limb of argument on behalf of the petitioner is that levy\r\nof GST on royalty/ DMF is akin to levy of service tax under the\r\nFinance Act, 1994, since by virtue of the 101st constitution\r\namendment, various indirect taxes prevalent in the country such as\r\nVAT, Central Excise Tax, Service Tax, Entry Tax etc. have been&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">subsumed in one Tax in the nature of Goods and Services Tax.\r\nArticle 366 (12A) of the Constitution of India defines Goods and\r\nServices Tax to means tax on supply of goods and services or both.\r\nThe nature of levy under the service tax under the Finance Act,\r\n1994 imposed by the respondents are akin to GST. On a mistaken\r\nnotion of supply of services by way of leasing of mineral rights to\r\nthe petitioners by the State, GST is sought to be imposed on royalty.\r\nSince the levy of service tax on royalty/ DMF has been stayed by\r\nthe Apex Court in the case of Udaypur Chambers of Commerce\r\nand Industry &amp; others Vrs. Union of India &amp; Others in Special\r\nLeave to Appeal (C) No. 37326 of 2017 and following the said\r\norder, interim reliefs have been granted by this Court and other\r\nHigh Courts on levy of service tax on royalty/ DMF, by the same\r\nprinciples petitioners be granted interim protection from levy of\r\nGST on royalty / DMF.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(vii)It is further submitted that the Apex Court in the case of M/s\r\nLakhwinder Singh (supra) had earlier been pleased to grant interim\r\nprotection on levy of GST on mining lease / royalty being guided\r\nby similar consideration. Though the said writ petition has been\r\ndismissed to enable the petitioners to avail of the alternative remedy\r\nbefore the concerned High Court under Article 226 of the\r\nConstitution of India, the principles on which such interim\r\nprotection was granted by the Apex Court on levy of GST on\r\nmining lease/ royalty, should apply to the case of the petitioners at\r\nhand. Interim order has been passed by other High Courts on\r\nindependent consideration, such as in the case of Oil India Limited\r\nVrs. Union of India &amp; others (W.P.C. No. 3872 of 2020) by the\r\nHigh Court of Gauhati vide order dated 17.11.2020. Similar order\r\nhas been passed by the Andhra Pradesh High Court in the case of\r\nM/s C.R. Granites Vrs. The Assistant Commissioner (ST)(FAC),\r\nAddanki Circle, Addanki &amp; another in Writ Petition No. 30248 of\r\n2021, order dated 22.12.2021. It is submitted that the different High\r\nCourts as above have taken into consideration that the question\r\nwhether royalty is a tax or not is pending consideration before the 9\r\nJudge Constitution Bench of the Apex Court and till then the ratio\r\nrendered by the 7 Judges Bench in the case of India Cement Ltd.\r\n(supra) that royalty is a tax holds the field.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. Learned counsel for the respondent State, Additional Advocate\r\nGeneral No.-II Mr. Sachin Kumar at the outset submits that the matter\r\nmay be posted for final hearing on any convenient date and no interim\r\nprotection may be granted. Learned counsel for the State has made two\r\nfold arguments on the interim plea:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) That royalty also amounts to a consideration on which GST can\r\nbe levied.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii)That there is no bar on imposition of GST even if royalty is\r\nconsidered as a tax as per the judgment of the Apex court in the\r\ncase of India Cement Ltd. (supra).\r\nCounter affidavit has been filed by the State in some of the writ\r\npetitions.&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. Learned counsel for the CGST Mr. Amit Kumar and Mr. P.A.S.\r\nPati in respective cases have also opposed the plea. They have drawn the\r\nattention of this Court to Section 7 of the CGST Act, 2017 which\r\nexplains the expression “supply” and includes all forms of supply of\r\ngoods or services or both, such as sale, transfer, barter, exchange,\r\nlicense, rental, lease etc. He submits that clause 1(a) under Section 7\r\nprovides that activities such as lease are to be treated as supply of\r\nservices as referred to in Schedule II. Referring to the definition clause\r\nof “consideration” under Section 2(31), it is submitted that\r\n“consideration” in relation to supply of goods or services or both\r\nincludes any payment made or to be made, whether in money or\r\notherwise, in respect of, in response to, or for the inducement of, the\r\nsupply of goods or services or both, whether the recipient or by any\r\nother person but shall not include any subsidy given by the Central\r\nGovernment or a State Government. As such royalty would come within\r\nthe meaning of consideration in respect of the services received by the\r\npetitioners on grant of such lease of exploration of minerals. Based on\r\nthese contentions learned counsel for the respondents have opposed the\r\nprayer.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. We have considered the submissions of learned counsel for the parties on the prayer for interim relief on the levy of GST on royalty\r\n/DMF. On consideration of the rival pleas in the canvass of facts and the\r\nlegal propositions advanced by them, it is clear that the levy of GST by\r\nthe respondents is on the royalty/DMF in respect of the mining lease\r\ngranted to the petitioners. The decision of the Apex Court by the 7\r\nJudges Constitution Bench in the case of India Cements Ltd. (supra) that\r\nroyalty is a tax is under consideration before a 9 Judges Constitution\r\nBench of the Apex Court upon reference made in the case of Mineral\r\nArea Development Authority &amp; others (supra).\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Following the interim order passed by the Apex Court in the case\r\nof M/s Lakhwinder Singh (supra) dated 04.10.2021, this Court had been\r\npleased to grant interim protection on levy of GST on mining lease /\r\nroyalty/DMF. In the background of the legal position that royalty has\r\nbeen considered to be a tax or profit pendre and the issue is pending\r\nbefore the 9 Judge Constitution Bench, we are of the considered view\r\nthat the petitioners have made out a case for interim protection. As such,\r\nthere shall be stay of recovery of GST for grant of mining lease/\r\nroyalty/DMF from the petitioners till further orders.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>However, the\r\nRevenue is not restrained from conducting and completing the\r\nassessment proceedings.\r\nSince interim protection has been granted earlier in the case of\r\nSunita Ganguly and others Vrs. Union of India &amp; others vide order\r\ndated 02.03.2021 passed in W.P.(T) No. 3878 of 2020 and other\r\nanalogous cases on levy of service tax on royalty/DMF, similar interim\r\nprotection is being granted in W.P.(T) No. 897 of 2022, W.P.(T) No. 903\r\nof 2022, W.P.(T) No. 926 of 2022, W.P.(T) No. 927 of 2022 where the\r\nlevy of service tax on royalty/ DMF is under challenge. As such, interim\r\norder dated 02.03.2021 shall govern the case of said writ petitioners also.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Learned counsel for the respondent State and CGST are granted 3\r\nweeks’ time to file counter affidavit in respective writ petitions in which\r\nno counter affidavit has been filed. 2 week time thereafter is granted to\r\nthe petitioners to file rejoinder, if any. Let these matters be listed in the\r\n1\r\nst week of July, 2022.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '60439a4e1ed13cfad489cf03a2b2ebe0.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-04-29', 0, '', '', '2022-04-29 19:33:42', '2022-04-29 09:03:44'),
(1650, '320SSfvPEcN6mWj3z5bdKIhHN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Delhi High Court on GS STAR Trademark', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>TM 25 Holding BV Vs Uma Manja Shivappa<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CS(COMM) 78 of 2021 decided on 28 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Prathiba M. Singh.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The present application has been filed by the Plaintiff on the ground\r\nthat the Defendant has not complied with the injunction order dated 16th\r\nFebruary, 2021 passed by the ld. Single Judge of this Court. The brief\r\nbackground of the case is that the Plaintiff had instituted the present suit\r\nseeking protection of its trademark ‘G-STAR’ which was adopted by it in\r\n1989 for various apparel, including jeans, tops and other clothing, as well as\r\na diverse line of luxury accessories, etc. The Plaintiff had also opened its\r\nstore in India in July 2015. The Plaintiff was earlier using the mark\r\n‘GAPSTAR’ earlier and switched to ‘G-STAR’ IN 1994. The mark ‘GSTAR’ is also registered in favour of the Plaintiff in India under various\r\nclasses.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. In June 2020, the Defendant was found to be using ‘GS STAR’ for\r\napparel and has also filed an application dated 21st November, 2018 before <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the trademark registry bearing no.4003995 for the registration of the same\r\nfor the same class of products as that of the Plaintiff on a ‘proposed to be\r\nused’ basis. The products of the Defendant were also found to be advertised\r\nand promoted on</span></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">www.indiamart.com and </span></span><a href=\"http://www.justdial.com.\" target=\"_blank\">www.justdial.com</a></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. A Local Commissioner was appointed on 16th August, 2021 as the\r\nDefendant was not complying with the above injunction order. The\r\nCommission was since executed, but the Local Commissioner could not find\r\nany products with the mark ‘GS STAR’ in the premises of the Defendant.\r\nThe Defendant was shown to have used the new board by the name ‘Higher\r\nFields Way 2 Journey’ for its apparels. Photographs were placed on record <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by the Local Commissioner of the apparels and the board with the name\r\n‘Higher Fields Way 2 Journey’. However, in the present application, the\r\ncontention of the Plaintiff is that the Defendant has not been complying with\r\nthe injunction order dated 16th February, 2021. The said application is based\r\non the affidavit of an independent investigator- Nripendra Kashyap, who\r\nvisited the Defendant’s premises in June, 2021. The investigator’s affidavit\r\nshows the followings:</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>i. Listings on www.indiamart.com and www.justdial.com of the\r\nDefendant being continued.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>ii. Photographs of the Defendant’s premises along with the\r\nproducts, labels and tags bearing the mark ‘GS STAR’.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The Court has perused the application under Order XXXIX Rule 2A\r\nCPC and the report of the Local Commissioner. It is noticed by the Court\r\nthat the investigator claims to have gone to the Defendant’s premises on 26th\r\nJune, 2021. However, the Commission was executed on 20th August, 2021.\r\nIt is possible that the Defendant upon receiving a copy of this application\r\nmay have stopped using the mark ‘GS STAR’ and adopted new mark. Sine\r\nthe Local Commissioner’s report is subsequent to the investigator’s report\r\nand the Local Commissioner’s report also shows that the Defendant’s\r\ndisplay board, tags on the clothes have been changed and the mark ‘GS\r\nSTAR’ is no longer in use, this Court is of the opinion that the only orders\r\nthat would be called for, at this stage, would be for a direction to\r\nwww.indiamart.com and www.justdial.com to remove the Defendant’s\r\nlistings bearing the mark ‘GS STAR’.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Accordingly, the Plaintiff is permitted to approach both these\r\nplatforms with the URLs of the Defendant’s listings and seek for removal of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the same. The said platforms upon receipt of the present order of this Court\r\nshall remove the Defendant’s listings bearing the mark ‘GS STAR’ within\r\n36 hours.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. It is clear that the Defendant has knowledge of the present suit and the\r\ninjunction order dated 16th February, 2021, inasmuch as the Local\r\nCommissioner’s report has recorded that the Defendant has changed its\r\nmark. A perusal of the record shows that, as of June, 2021, the Defendant\r\ncontinued to use the mark ‘GS STAR’, despite the injunction order dated\r\n16th February, 2021.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. The rights of the Plaintiff in the mark ‘G STAR’ are clearly borne out\r\nfrom the record. The Plaintiff’s background has been captured in the Plaint.\r\nA perusal of the same shows that the Plaintiff is using various variants of the\r\nmark ‘G STAR’, including ‘G STAR’ logo form, G-STAR, G-STAR RAW,\r\nRAW, G-RAW and RAW DENIM 3301. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. In the opinion of this Court, the mark ‘GS STAR’ used by the\r\nDefendant is clearly identical and deceptively similar to the Plaintiff’s mark\r\n‘G-STAR’. There can be no justification for use of the said mark in respect\r\nof identical products, especially when the mark of the Plaintiff is registered\r\nin India and the mark is being used the Plaintiff in India. The Defendant is\r\nalso conscious of the importance of trade marks and, has in fact, has filed\r\nthe Trademark Application bearing no.4003995, for the registration of the\r\nmark ‘GS STAR’ in Class 25, on 21st November, 2018, on a ‘proposed to be\r\nused’ basis.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. The Plaintiff is clearly the prior user of the mark ‘G-STAR’ globally\r\nas also in India. The Plaintiff also enjoys goodwill and reputation in the said\r\nmark ‘G-STAR’ in relation to apparels and garments. The Plaintiff has also\r\nopposed the trademark of the Defendant.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. In the facts and circumstances of this case, this Court is empowered\r\nunder the Rule 27 of the Delhi High Court Intellectual Property Division\r\nRules, 2022 to pass summary judgment, without the requirement of filing a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">specific application seeking the same. Accordingly, the present suit is\r\ndecreed in terms of the reliefs sought in paragraphs 49(a), (b) and (c) of the\r\nPlaint.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>15. Further, the Defendant has deliberately continued the use of the mark\r\n‘GS STAR’ despite being aware of the Plaintiff’s mark ‘G-STAR’ as also\r\nthe reputation thereof, through the opposition proceedings to its mark. The\r\nsaid opposition was filed by the Plaintiff in June, 2020. Thereafter, the\r\nDefendant filed the Counter Statement on 15th August, 2020, but continued\r\nto use the mark ‘GS STAR’ for almost a year till June, 2021. Thus, the use\r\nby the Defendant of the mark ‘GS STAR’ after the filing of the opposition\r\nby the Plaintiff, is clearly deliberate and intentional. In view of the above,\r\nthis is a fit case for grant of damages, in terms of the relief sought in\r\nparagraph 49(e) of the Plaint, to the tune of Rs.10,00,000/- in favour of the\r\nPlaintiff and against the Defendant. The said damages be paid to the Plaintiff\r\nby the Defendant, within eight weeks.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>16. The Plaintiff has also incurred litigation costs, including court fee,\r\nfees of the Local Commissioner and other expenses. Thus, costs of\r\nRs.3,50,000/- is also awarded in favour of the Plaintiff, in terms of the relief\r\nsought in paragraph 49(g) of the Plaint. Let the said costs be paid to the\r\nPlaintiff by the Defendant, within eight weeks.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>17. Decree sheet be drawn accordingly. All pending applications are\r\ndisposed of. If the payments in terms of this decree are not made, the\r\nPlaintiff is at liberty to avail of its remedies, in accordance with law.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ca38b26542fdc1785a2a1fa24f2288fc.jpeg', '6e8c7f29d5fc1c14eae5d267cce9b071.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-01', 0, '', '', '2022-05-01 18:30:47', '2022-05-04 03:23:32'),
(1651, 'Jvqwpg39yq5q6x75TTfpDnvBF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'An exclusive jurisdiction clause regarding seat of arbitration and place of suing will oust the jurisdiction of all other courts even though no cause of action has arisen in the seat of arbitration. Delhi High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sikka Motors Pvt Ltd Vs Hyundai Motor India Ltd<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>O.M.P (1) (COMM) 391 of 2021 decided on 27 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sanjeev Sachdeva.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. By this petition, under section 9 of the Arbitration and Conciliation\r\nAct 1996 (hereby referred to as the ‘Arbitration Act’), petitioner inter alia\r\nseeks a restraint on the respondent from taking any illegal or coercive\r\nactions against the petitioner in terms of termination notice dated\r\n25.11.2021 and further seeks a restraint on the respondent from initiating\r\nany process of termination till the Arbitrator decides the disputes arisen\r\nbetween the parties.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. It is contended by the petitioner that the dealership agreement\r\nthough initially for a period of three years, has been renewed on the same\r\nterms and conditions from time to time and has been last renewed on\r\n05.08.2020. It is contended by learned counsel for the petitioner that\r\npetitioner is a dealer of the respondent since 2004. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Perusal of the arbitration Clause 11 shows that the parties have\r\nagreed that the venue of arbitration shall be Chennai and Clause 12 dealing\r\nwith jurisdiction and governing law stipulates that the said Clause is\r\nsubject to the Clause of the arbitration and parties have unconditionally\r\nand irrevocably agreed to submit to the exclusive jurisdiction of the\r\ncompetent courts in Chennai.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Perusal of Clauses 11 and 12, clearly show that parties had agreed\r\nthat the venue of arbitration shall be Chennai and the courts at Chennai\r\nshall have exclusive jurisdiction over the subject disputes emanating out of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the said agreement.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. References may be held to the Judgement of the Supreme Court in\r\nIndus Mobile Distribution Private Limited Vs. Datawind Innovations\r\nPrivate Limited (2017) 7 SCC 678, wherein the Supreme Court was\r\nconsidering a case involving a similar Clause that had stipulated <i>“such\r\narbitration shall be conducted at Mumbai in English language…..…. all\r\ndisputes and references of any kind whatsoever, arising out of or in\r\nconnection with this agreement shall be subject to exclusive jurisdiction of\r\nCourts at Mumbai.”\r\n</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. The Supreme Court in Indus Mobile (supra) was considering the\r\nquestion as to whether, when the seat of arbitration is Mumbai, an\r\nexclusive jurisdiction clause stating that the courts at Mumbai alone would\r\nhave jurisdiction in respect of disputes arising under the agreement would\r\noust all other courts including the High Court of Delhi, whose judgement\r\nis appealed against.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. The Supreme Court negated the contention of the counsel for the\r\nrespondent therein that if no part of cause of action arose in Mumbai, even\r\nif the seat were at Mumbai, it would make no difference as the test\r\nprescribed by the CPC to give a court jurisdiction at least be fulfilled and\r\nsince none of the test were fulfilled the courts at Mumbai would have no\r\njurisdiction.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. The law laid down by the Supreme Court in Indus Mobile (supra)\r\nsquarely applies to the facts and circumstance of the present case. In the\r\npresent case also parties have agreed to the venue of arbitration as Chennai\r\nand also that the competent courts in Chennai would have exclusive\r\njurisdiction.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. Even if assuming that no part of cause of action has arisen in\r\nChennai, applying the ratio of the judgment in Indus Mobile (supra), it can\r\nsafely be concluded that the courts at Chennai would have exclusive\r\njurisdiction to entertain any proceedings arising under the Arbitration Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. Clearly in Ravi Ranjan Developers (supra), parties had not agreed to\r\nconfer any exclusive jurisdiction to the courts at Kolkata. Further, the\r\ndispute in the said case pertaining to a property that was situated in\r\nMuzaffarpur at Bihar.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. The Supreme Court in Ravi Ranjan Developers (supra) held that suit\r\nfor recovery of immovable property or determination of any other rights or\r\nan interest in any immovable property or for compensation for wrong\r\nimmovable property is to be instituted in the court within the local limits\r\nof whose jurisdiction the property is situated.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. The Supreme Court further, notice that the suit pertained to an\r\nimmovable property situated to Muzaffarpur in Bihar outside the territorial\r\njurisdiction of the Kolkata High Court and further, no part of cause of\r\naction had arisen within the territorial jurisdiction of the said court. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. In the light of the above observation, the Supreme Court in Ravi <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Ranjan (Supra) perused the development agreement which was the subject\r\nmatter of the dispute and held that the contention of the respondent that the\r\nparties to arbitration had agreed to subject to jurisdiction of Kolkata High\r\nCourt was not correct.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>27. The Supreme Court noticing that parties to the arbitration agreement\r\nonly agreed that the sitting of the Arbitral Tribunal would be in Kolkata,\r\nheld that Kolkata was the venue for holding the sitting of the Arbitral\r\nTribunal and that the parties never agreed to submit to the jurisdiction of\r\nthe Kolkata High Court in respect of disputes.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>28. In contrast, in the present case, as noticed hereinabove, Clause 12 of\r\nthe agreement specifically agrees to the exclusive jurisdiction of the\r\ncompetent courts in Chennai.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>29. In view of the above, it is held that the courts at Delhi would not\r\nhave the jurisdiction to entertain any proceedings arising out of the subject\r\ndealership agreement and the competent courts at Chennai alone would\r\nhave exclusive jurisdiction.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>30. Consequently, it is held that the petition is not maintainable in this\r\ncourt and is accordingly dismissed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">31. At this stage, learned counsel for the petitioner prays that the interim\r\nprotection granted by this court by order dated 03.12.2021 be continued to\r\nenable the petitioner to approach a competent court. He further, submits\r\nthat the Clause 14 pertaining to termination of the agreement stipulates\r\nthat the parties are entitled to terminate the agreement by giving the 60 day </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">notice and as the termination notice was given on 25.11.2021 and this\r\ncourt by order dated 03.12.2021 had directed that no coercive action be\r\ntaken, the 60 day period not having been completed, interim protection be\r\ncontinued for the balance period out of the period of 60 days.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. Further, it may be noticed that the agreement itself stipulates that the\r\nagreement is terminable and respondents have already exercised the rights\r\nof termination and as such taking a prima facie view, there is no ground to\r\ncontinue the interim protection that was granted by order dated\r\n03.12.2021. Said prayer is also rejected.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5bd14045e98d34ed08a51d6d45f641ee.png', '721c4c67243e91ee0ddae44f1b3e7794.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-14', 1, '', '', '2022-05-01 18:40:20', '2022-05-15 03:18:29');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1652, 'mnoLbUsxN6J1zZgJLMeEO9gPq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Court or Tribunal cannot impound insufficiently stamped document unless and until the parties produce the document on record. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Widescreen Holdings Private Limited and another Vs Religare Finvest Limited and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Petition for Special Leave to Appeal (C) 6826-6829 of 2022 deciced on 22 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Considering the fact that even the loan agreement which <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contains the arbitration clause which was sought to be impounded is\r\nnot produced before any Tribunal and/or Court and till then, there\r\nis no question of impounding any document, the High Court is\r\njustified in passing the impugned order.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shri Kaul, learned Senior Advocate has submitted that the\r\noriginal applicant(s) is not placing on record the original loan\r\nagreement containing the arbitration clause. If the original\r\nclaimant who has initiated the arbitration proceedings relying upon\r\nthe arbitration clause contained in the loan agreement is not\r\nproducing the same, it is ultimately for the learned Arbitrator to\r\npass an appropriate order and to take into consideration such a\r\nconduct. So far as the impounding of the document is concerned\r\nunless and until the same is produced on record before any\r\nCourt/Tribunal, there is no question of any impounding the same, as\r\nobserved hereinabove.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Arbitrator may take call on the impounding of document\r\nprovided it is produced by the original claimant.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>With this observation, the present Special Leave Petition\r\nstands dismissed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pending application(s), if any, shall stand disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '74e752ed47c9133ab9831ce63fda7520.jpeg', 'dfc4b18b4036298d040e7b17eb2f3a31.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-02', 1, '', '', '2022-05-01 18:57:32', '2022-05-02 05:44:36'),
(1654, 'GCRwQKEXG0foNBq2gnxNgv93S', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service law. Principle that \'Rules of the game cannot be changed once the game has begun’ does not apply if the change is not illegal or contrary to any provision of law. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Chinni Babu Vs The State of Karnataka and others.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Writ Petition 208413 of 2017 decided on 22 April 2022.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Justice Anant Ramanath Hegde.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>\'Rules of the game cannot be changed once the game has begun’. This phrase, which has found its place in many of the judicial pronouncements of the Apex Court and High&nbsp; Courts when the Courts have taken exception to the employer\'s decisions, changing the criteria for selection of employees, after the commencement of the process of selection, is the trump card for the petitioners.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. Petitioners cling to the ratio in the judgments of the Hon’ble Apex Court in the matter of K.Manjusree etc. v. State of Andhra Pradesh and another&nbsp; -&nbsp; AIR 2008 SC 1470 and in the matter of N.T.Bevin Katti, etc. v. Karnataka Public Service Commission and others&nbsp; - AIR 1990 Supreme Court 1233 to justify their stand.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. Changes in the selection criteria are notified and you have consciously participated in the selection process without any demur or protest. You took a chance, waited for the result, and now cannot turn around to say that a change in criteria midway through the selection process is impermissible, is the response of the University of Agricultural Sciences, Raichur/appointing authority (for short’ University’).</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. The other contesting respondents who apparently benefited from the changed criteria would echo the same defence. Respondents seek to take shelter under the doctrine of estoppel and contend that parties cannot be allowed to approbate and reprobate.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. Before getting into the discussion on the merits, it is relevant to state that the ratio laid down in the case of K.Manjusree and the principle that the&nbsp; ‘Rules of the game cannot be changed after the game has begun in the context of the recruitment of employees under the State or instrumentalities of the State’ is referred to the larger Bench, by the three Judges Bench of the Hon’ble Apex Court in the mater of&nbsp; Tej&nbsp; Prakash&nbsp; Patak&nbsp; and&nbsp; others v. Rajasthan High&nbsp; Court and others - (2013) 4&nbsp; SCC 540. Merely because the ratio in the said case is doubted and the matter is referred to a larger bench, it does not lose its value as a precedent. The ratio holds good till it is overruled.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. The University, has not yet framed the Statute, however, has adopted the Statute of the University of Agricultural Sciences, Dharwad. Said Statute, does not prescribe any eligibility criteria for the selection of employees. The eligibility criteria and the selection process are to be determined by the Board of the University.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. In terms of the notification dated 20.09.2010, the University adopted the ‘Score Card’ method for the recruitment of service personnel, which was prevailing in the University of Agricultural Sciences, Dharwad. The notification further reveals that the Score Card method adopted is subject to changes if any to be made by the Co- ordination Committee. The Score Card method provided evaluation of candidates under different heads. The noticeable feature is, that no written test is prescribed under this method.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>36. In the backdrop of the above-said facts and the contentions raised by the petitioners, the Court has to examine whether the ratio laid down in the cases cited by the petitioners, particularly the case of K.Manjusree and N.T.Bevin Katti referred supra, would come to the aid of the petitioners.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>37. In K.Manjusree’s case referred above, the examination for the post of District Judges, was conducted and the results were announced. The committee appointed for the purpose approved the result and placed the results for final approval of the Full Court of the High Court. The Full Court, of Andra Pradesh High Court at this juncture altered the marks earmarked for the written test and the interview. As a consequence, the candidate who is selected earlier is not selected. The Hon’ble Apex Court in the light of the facts obtained in the said judgment held that decision to vary the marks allotted for the written test and the interview cannot be made after the announcement of the result. As could be noticed from the said judgment even the marks obtained by the candidates were published, a merit list was prepared and candidates were recommended for appointment. The selection process was initiated pursuant to the resolution/standing order issued.&nbsp;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>38. The ratio laid down in the aforementioned case to some extent applies to the present set of facts of these petitions. Though the criteria for the selection are not changed after the announcement of the results as was the situation in K.Manjusree’s matter, the criteria for evaluation were changed after the examination was conducted. In other words, practically the game was over and the criteria for selection are changed thereafter. However, there are certain distinguishable factors in K.Manjusree’s case and the case on hand&nbsp; which&nbsp; are&nbsp; noted below:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>i. The examinations of the petitioners are held as per&nbsp; the modified criteria and not as per the original criteria fixed in 2010. In K.Manjusree’s case,&nbsp; the&nbsp; examination was held as per the originally notified criteria and results are declared and a list of selected candidates was published as per the originally notified criteria in the first instance.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ii. Though three petitioners requested for retention of the Score Card method, vide petition dated 29.04.2016, did not register the protest after some modifications are introduced pursuant to their protest and they did not object to the notification prescribing the syllabus under the changed criteria. All the three petitioners without protest participated in the examination. In K.Manjusree’s case, there were no changes&nbsp; introduced till the results are announced in the first instance.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>iii. In K.Manjusree’s case, the petitioner made a prayer&nbsp; to announce the results as per the criteria fixed under the notification. From the date of notification till the alteration of the result, there were no other changes in the selection procedure. However, in the present cases, the criteria were changed on 09.04.2016 and 15.03.2017. The petitioners participated in the examination after the change of criteria.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>42. ‘Rules of the game cannot be changed after the game has begun’, is a principle evolved by the Courts while interpreting the facts and law applicable to a given case. It is not a codified provision of law. It cannot be applied like a mathematical formula. Thus, the principle has to be understood in the backdrop of cases in which such principle is enunciated. Before applying the said rule, the Court has to consider various factors viz.,</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(a)<span style=\"white-space:pre\">	</span>What are the changes made after the initial notification prescribing criteria for selection;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(b)<span style=\"white-space:pre\">	</span>At what stage changes are made? Whether the changes are made after the commencement of the examination or before the examination or after the announcement of results?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(c)<span style=\"white-space:pre\">	</span>To what extent, the changes have caused the prejudice to the candidates who applied for the posts;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(d)<span style=\"white-space:pre\">	</span>Whether the persons who have applied under the initial notification are prevented from participating in the process after the changes are made; <br>(e)<span style=\"white-space:pre\">	</span>The reasons for making changes; Whether the changes are made to bring the selection process in conformity with the binding law or regulation or whether the changes are made in violation of the binding law or regulation;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(f)<span style=\"white-space:pre\">	</span>Whether the changes are made with a malafide intention of conferring undue favour to a particular or a section of candidates?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(g)<span style=\"white-space:pre\">	</span>More importantly, whether candidates who participated in the process after the change of criteria can maintain the challenge to the decision changing the criteria.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>43. If the petitioners demonstrate that the changes made violate any law/rule/regulation, binding on the University, then despite having participated in the examinations without protest, petitioners can question the decision changing the criteria. In a situation, where the petitioners seek to bring the selection process in conformity with applicable law, then the rule of estoppel does not apply.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>44. The decision of the University in changing the criteria for selection has to be examined in the light of the aforesaid propositions. If the decision is impermissible and invalid, then the petitioners should succeed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>46. The answer to this question depends on the fact whether such a course of action by the University violates any of the rules or regulations binding on the University in a matter relating to the employment of personnel. There is no denial of the fact that, the University is not governed by any other law in the matter relating to eligibility criteria to be fixed, for the appointment of personnel to the University, except for the fact that the Board of the University is empowered to fix the criteria. In addition to this the University has&nbsp; to adhere to the rules relating to reservation under the State Policy. However, in these petitions, the question relating&nbsp; to reservation to the posts is not involved.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">47. Given the fact that the Board of the University is empowered to determine the eligibility criteria for ‘C’ group employees then, the decision of the University to follow the criteria applicable to the rest of the State in the selection and appointment of ‘C’ group employees which is formulated in terms of Rules, 2015, cannot be said to be an arbitrary decision to be struck down in exercise of powers under Article 226 of the Constitution. If the University has decided to bring the selection process of its ‘C’ group employees on par with the selection of similar employees, in other Agricultural Science Universities in the State, without formally adopting the Rules, such a decision cannot be said to be a malafide decision. The good intention behind such a decision is apparent on the face of the decision itself. The changes are introduced in the year 2016, in the meeting of the Co-ordinate committee and the Board taking clue from the Rules 2006, as amended with effect from 31.12.2015. Thereafter the change criteria are published on 09.04.2016.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">48. No doubt, the working effect of the said decision has resulted in petitioners being knocked down in the selection process and the respondents getting selected for the post applied by the petitioners. However, the adverse consequence of the said decision on the petitioners by itself cannot be the criteria to quash the appointments. If the petitioners were able to demonstrate that the decision is intended to favour a particular section of the respondents or the decision is taken with a malafide intention of targeting the petitioners, then the Court could have proceeded to dwell deep into the reason behind the change of criteria. From the materials placed on record&nbsp; and from the pleadings, it cannot be construed that the decision of the University suffers from malafide intentions.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">49. The fact that the petitioners were notified about each of the changes made in the selection criteria is not in dispute. The examinations have taken place, after a long time, after the changes are made to the criteria. The petitioners had sufficient time to challenge the changes. However, petitioners have not chosen to challenge the same. On the other hand, the petitioners have opted to participate in the written examination (introduced by way of change) without any demur. Petitioners waited for the result. And only after realizing that they have not succeeded under the modified selection criteria, do petitioners approach the Court with a prayer not to consider the marks obtained in the written test and petitioners want the selection to be made without reference to the marks in the written test. After having participated in the written examination under the changed criteria without protest, the party cannot object to considering the marks in the written test, unless he can demonstrate that the changes introduced are contrary to law. Such a stand is hit by the doctrine of estoppel</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">50. There is one more dimension to the case that needs to be discussed. It was urged by Shri. S. Basavaraj the learned Senior counsel appearing for petitioners in W.P.207476-77/2017, that the changed criteria seek to ignore the merit. It is his submission that the practical test and other tests found in the earlier method are more suitable than the one adopted in terms of the impugned order. In exercise of writ jurisdiction, the Court would not sit over the decision of the employer in prescribing the selection criteria. It is the domain of the employer. Employer will be having the expertise and wisdom to determine the eligibility criteria. The Courts can interfere in such matters, only if, the criteria fixed are contrary to the law. That is not the position here. Shri. S. Basavaraj the learned Senior counsel, in his fairness would submit that that there is no violation of any express provision of law. However, he would submit that the criteria fixed by the Board of the University have a statutory flavour and the same is to be retained till the completion of the selection process. Since the criteria determined in the meeting of the Board, is not a Statute or law, in an appropriate case and circumstances, the employer can make modifications to the criteria as long as such changes do not prevent the applicants from participating in the process, as long as such changes do not violate any provisions of law and such changes do not suffer from malafides.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">53. Learned Senior counsel Shri. S. Basavaraj appearing for some of the petitioners referring to the Judgment of Dr. (Major)&nbsp; Meeta&nbsp; Sahai&nbsp; v.s&nbsp; Union&nbsp; of&nbsp; India (2019) 20 SCC 17,&nbsp; would&nbsp; urge&nbsp; that&nbsp; by participating in the selection process candidate, accepts the prescribed procedure and not the illegality in it. Thus according to him, there cannot be any estoppels against the law.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>54. This Court has considered the said contention in the backdrop of the ratio laid down in the aforementioned case. The ratio laid down in the said case is not applicable. In the said case, the person who participated in the selection process, without any protest, later, on the announcement of the result which was&nbsp; against him, questioned the recruitment process by filing a writ petition. In the writ petition, he raised a contention that the selection process is contrary to the binding law and the selection process is held by misconstruing the existing provision of law. In such a situation, the Hon\'ble Apex Court has held that the writ petition to challenge the selection process on the ground that it is contrary to the law governing the selection process is maintainable, even though the petitioner has participated in the examination without protest.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>55.<span style=\"white-space:pre\">	</span>Admittedly, in the instant case, there is no binding law that would come to the rescue of the petitioners to say that the examination is to be held as per the law. In the absence of law relating to criteria for selection of employees, the board of the university has evolved certain eligibility criteria and the eligibility criteria are modified on the ground that the modified eligibility criteria will be in tune with the eligibility criteria fixed by other Universities in the State.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>57. In the light of the discussions made above, the findings are:-</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>i. The decision of the University to drop the Score Card method after conducting the examination in terms of the notification dated 09.04.2016 and 15.03.2017 is contrary to the law declared by the Apex Court in K.Manjusree’s case. The University&nbsp; having&nbsp; taken the decision to hold the examination in terms of criteria fixed under notification dated 09.04.2016 in which the petitioners participated without protest, could not have partially dropped the eligibility criteria fixed under notification dated 09.04.2016. Thus, the impugned notification dated 04.09.2017 issued by the 3rd respondent dropping the Score Card method prescribed in the notification dated 09.04.2016 is impermissible and is to be quashed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ii. The changes introduced in the selection criteria vide notification dated 09.04.2016, and 15.03.2017 ( for the post of typist/computer operator) did not prevent the petitioners from participating in the examination and the petitioners participated in the examinations/tests. The petitioners have waived their right, if any, to challenge the changed criteria by participating in the process. Thus the petitions challenging the notifications dated 09.04.2016, 11.04.2016 and 15.03.2017 are not maintainable.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>iii. The petitioners 4 and 5 in W.P. No. 208440/2017 and the petitioner no.1 in W.P. Nos. 207476-477/2017 who applied after 09.04.2016 i.e., the date on which criteria are changed, cannot claim the right to be considered for selection under the criteria fixed in 2015.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>iv. There is no violation of any law or infringement of any right of the petitioners. The petitioners have not acquired any right in terms of selection criteria for the year 2010 and 2015. Thus the petitions seeking a direction against the respondents to hold the selection process in terms of criteria of the&nbsp; year 2010 and 2015 are not maintainable.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '10c4110438fad58a84e0694bb6994633.JPG', 'f6bf2fba65b682a47d1530e9322073d3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-02', 1, '', '', '2022-05-03 01:49:26', '2022-05-02 15:27:26'),
(1655, 'mCRNhePygwJPVkwLpqKwXYZZZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Daksha Legal Monthly Digest - April 2022', '<p style=\"margin-right: 0px; margin-bottom: 10px; margin-left: 0px; font-size: 14px; color: rgb(102, 102, 102); font-family: Lato, sans-serif; line-height: 20px; text-align: justify;\"><span style=\"font-weight: 700; font-family: mainFontOP !important; line-height: 1.9 !important; color: rgb(34, 34, 34) !important; text-align: left !important; font-size: 16px !important;\">Daksha Legal Monthly Digest April 2022<br>Please open the PDF and click on the link.&nbsp;</span></p><div><span style=\"font-weight: 700; font-family: mainFontOP !important; line-height: 1.9 !important; color: rgb(34, 34, 34) !important; text-align: left !important; font-size: 16px !important;\"><br></span></div>', '31978d86eab59645a13e52332e27792e.jpeg', '7a5c08aec25a736ec7b75fd18f173dd2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-03', 1, '', '', '2022-05-03 17:30:26', '2022-05-03 17:30:26'),
(1656, '9JeADCEh1er4lNSPvQFUmDZjT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service law. Mere suppression of material information or giving false information in a given case does not mean that the employer can arbitrarily discharge or terminate the employee from service. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pawan Kumar Vs Union of India and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3574 of 2022 decided on 2 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ajay Rastogi and Justice Sanjiv Khanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The instant appeal is directed against the judgment and order passed by the Division Bench of the High Court of Delhi dated 17th November, 2015, whereby the High Court upheld the order of discharge dated 24th April, 2015, taking recourse to clause 9(f) of the employment notice no.1/2011 dated 27th February, 2011 read with Rule 67.2 of Railway Protection Force Rules, 1987 (hereinafter referred to as “the RPF Rules 1987”).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. This cannot be disputed that the candidate who intends to participate in the selection process is always required to furnish correct information relating to his character and antecedents in the verification/attestation form before and after induction into service. It is also equally true that the person who  has suppressed the material information or has made false declaration indeed has no unfettered right of seeking appointment or continuity in service, but at least has a right not to be dealt with arbitrarily and power has to be judiciously exercised by the competent authority in a reasonable manner with objectivity having due regard to the facts of the case on hand.  It goes without saying that the yardstick/standard which has to be applied with regard to adjudging suitability of the incumbent always depends upon the nature of post, nature of duties, effect of suppression over suitability to be considered by the authority on due diligence of various aspects but no hard and fast rule of thumb can be laid down in this regard.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. Earlier, there has been a conflict of opinion in the various decisions of Division Benches of this Court and at the stage when the Division Bench of the High Court dismissed the writ petition under the impugned order dated 17th  November, 2015, there were divergent views of this Court and that came to be later settled by a three Judge Bench of this Court in Avtar Singh v. Union of India and others. While summarizing the conclusion, this Court has laid down broad guidelines which has to be taken note of by the appointing/competent authority in dealing with the matters where there is a suppression of material information or disclosure of false information and after reconciling the earlier judgments succinctly summarized the conclusions as under:<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“34. No doubt about it that verification of character   and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate  action  should  be  based  upon objective  criteria   on  due consideration of all relevant aspects. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>35. Suppression of “material” information presupposes that what is suppressed that “matters” not every technical or trivial matter. The employer has to act on due consideration of rules/instructions, if any, in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>36. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by authorities  concerned considering post/nature of duties/services and power has to be exercised on due consideration of various aspects. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>37. The “McCarthyism” is antithesis to constitutional goal, chance of reformation has to be afforded to young offenders in suitable cases, interplay of reformative theory cannot be ruled out in toto nor can be generally applied but is one of the factors to be taken into consideration while   exercising   the   power   for   cancelling candidature or discharging an employee from service. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of the   aforesaid discussion, we summarise our conclusion thus: </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>38.1. Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of  a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>38.2. While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>38.3. The employer shall take into consideration the government orders/instructions/rules, applicable to the employee, at the time of taking the decision. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>38.4. In case there is suppression or false information  of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourses appropriate to the case may be adopted: </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>38.4.1. In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>38.4.2. Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>38.4.3. If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>38.5. In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>38.6. In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion, may appoint the candidate subject to decision of such case. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>38.7. In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>38.8. If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>38.9. In case the employee is confirmed in service, holding departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>38.10. For determining suppression or false information attestation/verification form has to be  specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>38.11. Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.”<br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. What emerges from the exposition as laid down by this Court is that by mere suppression of material/false information regardless of the fact whether there is a conviction or acquittal has been recorded, the   employee/recruit is not to be   discharged/terminated axiomatically from service just by a stroke of pen.  At the same time, the effect of suppression of material/false information involving in a criminal case, if any, is left for the employer to consider all the relevant facts and circumstances available as to antecedents and keeping in view the objective criteria and the relevant service rules into consideration, while taking appropriate decision regarding continuance/suitability of the employee into service. What being  noticed by this Court is that mere suppression of material/false information in a given case does not mean that the employer can arbitrarily discharge/terminate the employee from service.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16. The judgment relied upon by the respondent Rajasthan Rajya Vidyut  Prasaran   Nigam   Limited   and   another   v.   Anil Kanwariya may not be of any assistance for the reason that it was a case where the respondent employee before submitting application pursuant to the advertisement inviting applications was convicted by the competent Court of jurisdiction and this fact was not disclosed by him while filling his application form and that was the reason favoured upon the Court while upholding action of the authority in passing the order of termination which was impugned in the proceedings. We have already quoted paragraph 38 of the judgment by a three­Judge Bench of this Court in Avtar Singh (supra) and in the context of the factual background of the present case applied the said principles. One distinguishing factor, as noticed above, is that the criminal complaint/FIR in the present case was registered post submission of the application form. We have also taken into account the nature of the allegations made in the criminal case and that the matter was of trivial nature not involving moral turpitude. Further, the proceedings had ended in a clean acquittal. As is clear from paragraph 38 in  Avtar  Singh  (supra), all matters cannot be put in a straitjacket and a degree of flexibility and discretion vests with the authorities, must be exercised with care and caution taking all the facts and circumstances into consideration, including the nature and type of lapse.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2 (2021) 10 SCC 136<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17. Adverting to the facts of the instant case, at the time of attestation form filled by the appellant, the criminal case was already registered against him but it may be noticed that at the very threshold, the complainant filed his affidavit that the complaint on which FIR came to be registered was due to misunderstanding and he did not want to pursue his case any further, but still chargesheet came to be filed and on the first date of hearing, the alleged victim PW.1 did not support case of the prosecution and thus the order of clean acquittal came to be passed by the learned Judge of competent jurisdiction by judgment dated 12th August, 2011.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.  The criminal case indeed was of trivial nature and the nature of post and nature of duties to be discharged by the recruit has never been looked into by the competent authority while examining the overall suitability of the incumbent keeping in view Rule 52 of the Rules 1987 to become a member of the force. Taking into consideration the exposition expressed by this Court in Avtar Singh (supra), in our considered view the order of discharge passed by the competent authority dated 24th April, 2015 is not sustainable and in sequel thereto the judgment passed by the Division Bench of High Court of Delhi does not hold good and deserves to be set aside. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19. Consequently, the appeal succeeds and is allowed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'df50437aa01c15d202c88376e6c77882.jpeg', 'ebb5b61eda4552a5cec571b79b965a19.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-04', 1, '', '', '2022-05-03 17:53:05', '2022-05-04 11:10:02');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1657, 'yIoKgwlxNGIorXSwpCojqpoFS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Decision taken by the Union of India to vaccinate children is in tune with global scientific consensus and expert bodies. Courts cannot second guess such expert opinion\'\'. Supreme Court.   ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jacob Puliyel Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition (Civil) 607 of 2021 decided on 2 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice L. Nageswara Rao and Justice B.R. Gavai.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The Petitioner was a member of the National Technical\r\nAdvisory Group on Immunization (NTAGI) and was advising\r\nthe Government of India on vaccines.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. In the Writ Petition, the Petitioner highlighted the\r\nadverse consequences of emergency approval of vaccines in\r\nIndia, the need for transparency in publishing segregated\r\nclinical trial data of vaccines, the need for disclosure of\r\nclinical data, lack of transparency in regulatory approvals,\r\nminutes and constitution of the expert bodies, imperfect\r\nevaluation of Adverse Events Following Immunisation (AEFIs) <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and vaccine mandates in the absence of informed consent\r\nbeing unconstitutional. The Petitioner further stated in the\r\nWrit Petition that coercive vaccination would result in\r\ninterfering with the principle of informed self-determination\r\nof individuals, protected by Article 21 of the Constitution of\r\nIndia.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>85. The opinion of the Petitioner is that children are at\r\nalmost no risk from COVID-19 and instances of previously\r\nhealthy children requiring hospitalisation due to COVID-19\r\nare exceedingly rare. While referring to articles in the Nature <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and the Lancet, the Petitioner contended that scientific\r\nevidence shows that risk of administering vaccines to\r\nchildren outweigh the benefits offered by the vaccine in\r\nchildren. The Petitioner further submitted that serological\r\nstudies would show that a large number of children have\r\nalready acquired antibodies to COVID-19. The Petitioner has\r\nhighlighted the risk of myocarditis associated with the mRNA\r\nvaccines, on the basis of which, several European countries\r\nhave recently stopped the use of Moderna vaccines for those\r\nunder the age of 30. He has also pointed out that these risks\r\nhad not been identified in the initial vaccine trials as the trial\r\nsize was too small to uncover rare risks, which were\r\ndiscovered after mass vaccination. The Petitioner has sought\r\nfor results as well as the primary data of clinical trials\r\nconducted on the paediatric population to be made public.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>87. This Court cannot sit in judgment of leading scientific\r\nanalysis relating to the safety of paediatric vaccination.\r\nExperts in science may themselves differ in their opinions\r\nwhile taking decisions on matters related to safety and allied\r\naspects, but that does not entitle the Court to second-guess\r\nexpert opinion, on the basis of which the Government has\r\ndrawn up its policies. The decision taken by the Union of\r\nIndia to vaccinate paediatric population in this country is in\r\ntune with global scientific consensus and expert bodies like\r\nthe WHO, the UNICEF and the CDC have also advised\r\npaediatric vaccination. It would not only be beyond our\r\njurisdiction but also hazardous if this Court were to examine\r\nthe accuracy of such expert opinion, based on competing\r\nmedical opinions. As already stated, the scope of judicial\r\nreview does not entail the Court embarking upon such\r\nmisadventures. Therefore, we reject the contention of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Petitioner that this Court has to intervene in paediatric\r\nvaccination on the ground that it is unscientific.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>89. In conclusion, we have summarised our findings on the\r\nvarious issues considered by us, below:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Given the issues urged by the Petitioner have a bearing\r\non public health and concern the fundamental rights of\r\nindividuals in this country, we are not inclined to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">entertain any challenge to the maintainability of the Writ\r\nPetition.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(ii) As far as judicial review of policy decisions based on\r\nexpert opinion is concerned, there is no doubt that wide\r\nlatitude is provided to the executive in such matters and\r\nthe Court does not have the expertise to appreciate and\r\ndecide on merits of scientific issues on the basis of\r\ndivergent medical opinion. However, this does not bar\r\nthe Court from scrutinising whether the policy in\r\nquestion can be held to be beyond the pale of\r\nunreasonableness and manifest arbitrariness and to be\r\nin furtherance of the right to life of all persons, bearing\r\nin mind the material on record.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(iii) With respect to the infringement of bodily integrity and\r\npersonal autonomy of an individual considered in the\r\nlight of vaccines and other public health measures\r\nintroduced to deal with the COVID-19 pandemic, we are\r\nof the opinion that bodily integrity is protected under\r\nArticle 21 of the Constitution and no individual can be\r\nforced to be vaccinated. Further, personal autonomy of\r\nan individual, which is a recognised facet of the\r\nprotections guaranteed under Article 21, encompasses\r\nthe right to refuse to undergo any medical treatment in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the sphere of individual health. However, in the interest\r\nof protection of communitarian health, the Government\r\nis entitled to regulate issues of public health concern by\r\nimposing certain limitations on individual rights, which\r\nare open to scrutiny by constitutional courts to assess\r\nwhether such invasion into an individual’s right to\r\npersonal autonomy and right to access means of\r\nlivelihood meets the threefold requirement as laid down\r\nin K.S. Puttaswamy (supra), i.e.,</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(i) legality, which\r\npresupposes the existence of law;</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(ii) need, defined in\r\nterms of a legitimate State aim; and</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(iii) proportionality,\r\nwhich ensures a rational nexus between the objects and\r\nthe means adopted to achieve them.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(iv) On the basis of substantial material filed before this\r\nCourt reflecting the near-unanimous views of experts on\r\nthe benefits of vaccination in addressing severe disease\r\nfrom the infection, reduction in oxygen requirement,\r\nhospital and ICU admissions, mortality and stopping new\r\nvariants from emerging, this Court is satisfied that the\r\ncurrent vaccination policy of the Union of India is\r\ninformed by relevant considerations and cannot be said\r\nto be unreasonable or manifestly arbitrary. Contrasting\r\nscientific opinion coming forth from certain quarters to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the effect that natural immunity offers better protection\r\nagainst COVID-19 is not pertinent for determination of\r\nthe issue before us.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(v) However, no data has been placed by the Union of India\r\nor the States appearing before us, controverting the\r\nmaterial placed by the Petitioner in the form of emerging\r\nscientific opinion which appears to indicate that the risk\r\nof transmission of the virus from unvaccinated\r\nindividuals is almost on par with that from vaccinated\r\npersons. In light of this, restrictions on unvaccinated\r\nindividuals imposed through various vaccine mandates\r\nby State Governments / Union Territories cannot be said\r\nto be proportionate. Till the infection rate remains low\r\nand any new development or research finding emerges\r\nwhich provides due justification to impose reasonable\r\nand proportionate restrictions on the rights of\r\nunvaccinated individuals, we suggest that all authorities\r\nin this country, including private organisations and\r\neducational institutions, review the relevant orders and\r\ninstructions imposing restrictions on unvaccinated\r\nindividuals in terms of access to public places, services\r\nand resources, if not already recalled. It is clarified that\r\nin the context of the rapidly-evolving situation presented by the COVID-19 pandemic, our suggestion to review the\r\nvaccine mandates imposed by States / Union Territories,\r\nis limited to the present situation alone and is not to be\r\nconstrued as interfering with the lawful exercise of\r\npower by the executive to take suitable measures for\r\nprevention of infection and transmission of the virus.\r\nOur suggestion also does not extend to any other\r\ndirections requiring maintenance of COVID-appropriate\r\nbehaviour issued by the Union or the State\r\nGovernments.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(vi) As regards non-disclosure of segregated clinical data, we\r\nfind that the results of Phase III clinical trials of the\r\nvaccines in question have been published, in line with\r\nthe requirement under the statutory regime in place, the\r\nGCP guidelines and the WHO Statement on Clinical Trials.\r\nThe material provided by the Union of India, comprising\r\nof minutes of the meetings of the SEC, do not warrant\r\nthe conclusion that restricted emergency use approvals\r\nhad been granted to COVISHIELD and COVAXIN in haste,\r\nwithout thorough review of the relevant data. Relevant\r\ninformation relating to the meetings of the SEC and the\r\nNTAGI are available in public domain and therefore,\r\nchallenge to the procedures adopted by the expert bodies while granting regulatory approval to the\r\nvaccines on the ground of lack of transparency cannot\r\nbe entertained. However, we reiterate that subject to\r\nthe protection of privacy of individual subjects, with\r\nrespect to ongoing clinical trials and trials that may be\r\nconducted subsequently for COVID-19 vaccines, all\r\nrelevant data required to be published under the extant\r\nstatutory regime must be made available to the public\r\nwithout undue delay.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(vii) We do not accept the sweeping challenge to the\r\nmonitoring system of AEFIs being faulty and not\r\nreflecting accurate figures of those with severe reactions\r\nor deaths from vaccines. We note that the role of the\r\nPharmacovigilance Programme of India and the CDSCO,\r\nas elaborated upon by the Union of India, collates and\r\nstudies previously unknown reactions seen during\r\nmonitoring of AEFIs at the time of vaccine administration\r\nand we trust the Union of India to ensure that this leg of\r\nthe AEFI surveillance system is not compromised with,\r\nwhile meeting the requirements of the rapid review and\r\nassessment system followed at the national level for\r\nAEFIs.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(viii)We are also of the opinion that information relating to\r\nadverse effects following immunisation is crucial for\r\ncreating awareness around vaccines and their efficacy,\r\napart from being instrumental in further scientific studies\r\naround the pandemic. Recognising the imperative need\r\nfor collection of requisite data of adverse events and\r\nwider participation in terms of reporting, the Union of\r\nIndia is directed to facilitate reporting of suspected\r\nadverse events by individuals and private doctors on an\r\naccessible virtual platform. These reports shall be made\r\npublicly accessible, without compromising on protecting\r\nthe confidentiality of the persons reporting, with all\r\nnecessary steps to create awareness of the existence of\r\nsuch a platform and of the information required to\r\nnavigate the platform to be undertaken by the Union of\r\nIndia at the earliest.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(ix) On paediatric vaccination, we recognise that the decision\r\ntaken by the Union of India to vaccinate children in this\r\ncountry is in tune with global scientific consensus and\r\nexpert bodies like the WHO, the UNICEF and the CDC and\r\nit is beyond the scope of review for this Court to second guess expert opinion, on the basis of which the\r\nGovernment has drawn up its policy. Keeping in line with the WHO Statement on Clinical Trials and the extant\r\nstatutory regime, we direct the Union of India to ensure\r\nthat key findings and results of the relevant phases of\r\nclinical trials of vaccines already approved by the\r\nregulatory authorities for administration to children, be\r\nmade public at the earliest, if not already done.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>90. We express our gratitude to the learned counsel on\r\neither side for their able assistance in enabling this Court to\r\nreach the above conclusion.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n91. The Writ Petition is disposed of accordingly.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd2a5caf6722941645b42f7346ba6f032.jpeg', '636adb87c84ff38404ed6156f4bf54fa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-04', 1, '', '', '2022-05-03 18:07:41', '2022-05-04 05:12:33'),
(1658, 'gJwrG9pb85bCaWvwEssFW6cDp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Acts of riot cannot be equated with acts of terrorism to repudiate insurance policy by invoking exclusion clause. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Narsingh Ispat Ltd Vs Oriental Insurance Company Ltd and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 10671 of 2016 decided on 2 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ajay Rastogi and Justice Abhay S. OKA.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This is an appeal under Section 23 of the Consumer Protection\r\nAct, 1986. The appellant has challenged the judgment and order\r\ndated 18th  October 2016 of the National Consumer Disputes\r\nRedressal Commission. By the said\r\nJudgment, the Commission dismissed the Consumer Complaint\r\nNo.165 of 2012 filed by the appellant. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. For the sake of convenience, we are reproducing the said\r\nExclusion Clause, which reads thus: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><i>“Terrorism Damage Exclusion Warranty : Notwithstanding any provision to the contrary within this insurance it is agreed that this insurance excludes loss, damage cost or expense of whatsoever nature directly or indirectly caused by, resulting from or in connection with any act of terrorism regardless of any other cause or event contributing concurrently or in any other sequence to the loss. For the purpose of this endorsement an act of terrorism means an act, including but not limited to the use of force or violence and/or the threat thereof, of any person or group(s)  of  persons whether  acting alone or on behalf of or in connection with any organization(s) or government(s), committed for political, religious, ideological  or similar  purpose including the intention to influence any government and/or to put the public, or any section of the public in fear. The  warranty also excludes   loss,  damage, cost or expenses of whatsoever nature directly or indirectly caused by, resulting from or in connection with any action taken in controlling, preventing, suppressing or in any way relating to action taken in respect of any act of terrorism.” (emphasis added)</i></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. In the present case, the repudiation of the policy made by the respondent is based on the Preliminary Survey Report, Investigation Report and the Final Survey Report. The Survey Reports cannot throw any light on the question whether there was an act of terrorism. The Survey Reports do not record any factual findings regarding the incidents which caused the loss.  Reliance was placed on the Investigation Report in the letter of repudiation.  A copy of the said Report, placed on record along with I.A.   No.38075   of   2022, records  a  conclusion drawn by theInvestigator  appointed  by  the respondent that it is not conclusively proved that the persons involved in the incident belonged to Maoist or similar groups. The FIR and Closure Report do not refer to acts of terrorism as defined under Exclusion Clause. The Final Report (Closure Report) shows that the police had registered a First Information Report against 105 miscreants who could not be traced. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. In paragraph 8 in the case of Ishar Das Madan Lal1 , this Court held thus:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“8. However, there may be an express clause excluding the applicability of  insurance  cover.  Wherever   such   an exclusionary clause is contained in a policy, it would be for the insurer to show that  the case  falls  within  the purview thereof. In a case of ambiguity, it is trite, the contract  of  insurance shall be construed in favour of the insured. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. The respondent has not discharged the burden of bringing the case within the four corners of the Exclusion Clause. When the policy itself defines the acts of terrorism in the Exclusion Clause, the terms of the policy being a concluded contract will govern the rights and liabilities of the parties.  Therefore, the parties cannot rely upon the definitions of ‘terrorism’ in various penal statutes since the Exclusion Clause contains an exhaustive definition of acts of terrorism.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">14. Thus, the Commission committed an error by applying the Exclusion Clause.  Moreover, the policy specifically covers the damage to the insured’s property caused by violent means. </font></span><font face=\"Calibri, sans-serif\">The policy covers explicitly a liability arising out of the damage to the property of the insured due to riots or the use of violent means. Hence, the decision to repudiate the policy cannot be sustained. Under the insurance policy, there are different limits prescribed for various acts covered by the policy.  In the impugned Judgment, it is noted that the parties had filed affidavits­ in­ lieu of evidence before the Commission. An adjudication will have to be made on the quantum of the amount payable to the appellant after appreciating the evidence on record, including the valuation reports.  However, the valuer appointed by the respondent­company has valued the loss caused to the appellant at approximately Rs.89,00,000/­. We, therefore, propose to direct the respondent to deposit the said amount with the Commission with liberty to the  appellant to make an application for withdrawal. </font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15. As there was no warrant for applying the Exclusion Clause, the impugned judgment and order will have to be set aside, and by restoring the complaint filed by the appellant, the same will have to be ordered to be heard by the Commission afresh.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>18. Accordingly, the appeal is allowed in the above terms with no\r\norder as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '48f603b419fde77d3716cfac4b40efb1.jpeg', '9d5de9d55dc6a93e0ed4e6abd620b924.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-04', 1, '', '', '2022-05-03 18:21:04', '2022-05-04 08:32:58'),
(1659, 'L0HjCPTcF0QJHR88ynFbjgoEq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Increments granted to an employee while in service cannot be recovered long period after retirement even if the said increment were granted on account of an error. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Thomas Daniel Vs State of Kerala and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 7115 of 2010 decided on 2 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Abdul Nazeer and Justice Vikram Nath.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(1) This appeal raises an issue as to whether increments granted to the appellant, while he was in service, can be recovered from him almost 10 years after his retirement on the ground that the said increments were granted on account of an error?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(9) This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud of  the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable.  This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion  to  provide relief to the employees from the hardship that will be caused if the recovery is ordered.  This Court has further held that if in a given case, it   is  proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(10) In Sahib Ram v. State of Haryana andOthers this Court restrained recovery of payment which was given under the upgraded pay scale on account of wrong construction of relevant order by the authority concerned, without any misrepresentation on part of the employees. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(12) In Syed Abdul Qadir and Others v. State of Bihar and Others excess payment was sought to be recovered which was made to the appellants ­teachers on account of mistake and wrong interpretation of prevailing Bihar Nationalised Secondary School (Service Conditions) Rules, 1983. The appellants therein contended that even if it were to be held that the appellants were not entitled to the benefit of additional increment on promotion, the excess amount should not be recovered from them, it having been paid without any misrepresentation or fraud on their part. The Court held that the appellants cannot be held responsible in such a situation and recovery of the excess payment should not be ordered, especially when the employee has subsequently retired. The court observed that in general parlance, recovery is prohibited by courts where there exists no misrepresentation  or fraud on the part of the employee and when the excess payment has been made by applying a wrong interpretation/ understanding of a Rule or Order.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(13) In State of Punjab and Others v. Rafiq Masih (White Washer) and Others wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and 4 (2015) 4 SCC 334 disallowed the same, exempting the beneficiary employees from such recovery. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(14) Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the appellant, the excess amounts have been paid.  The appellant has retired on 31.03.1999.  In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(15) Having regard to the above, we are of the view that an attempt to recover the said increments after passage of ten years of his retirement is unjustified. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(16) In the result, the appeal succeeds and is accordingly allowed. The Judgment and order of the Division Bench dated 02.03.2009 and also of  the learned Single Judge of the High Court dated 05.01.2006 impugned herein, and the order dated 26.06.2000 passed by the Public Redressal Complaint Cell of the Chief Minister of Kerala and the recovery Notice dated 09.10.1997 are hereby set aside. There shall be no order as to costs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1273c3d4b6908cae42d6f24755b8bcf8.jpeg', 'debe724097ed22b67b180c40838e5af2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-05', 1, '', '', '2022-05-03 19:27:45', '2022-05-05 05:06:35'),
(1660, 'SmSF1GREfIQc1icBn7H0mEBVu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contract of insurance is an indemnity of a defined loss and hence the insured cannot profit and take advantage by double insurance. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>United India Insurance Co. Ltd Vs Levis Strauss (India) Pvt. Ltd.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2955 of 2022 decided on 2 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">Justice Uday Umesh Lalit, Justice S. Ravindra Bhat and </span><span style=\"font-size: 12pt;\">Justice Pamidighantam Sri Narasimha. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>1. This appeal questions an order of the National Consumer Disputes\r\nRedressal Commission,1\r\n(hereinafter, “NCDRC”) which allowed the insurance\r\nclaim of Levi Strauss (India) Pvt. Ltd. (hereinafter, “Levi / insured / respondent”).\r\nPrior to this order, United India Insurance Co. Ltd. (hereinafter, “insurer /\r\nappellant”) had repudiated the policy issued to Levi.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>45. What is in issue in this present case has been characterized as “double\r\ninsurance”, i.e., where an entity seeks to cover risks for the same or similar\r\nincidents through two different - overlapping policies. There is a wealth of\r\ninternational jurisprudence on the various nuances of double insurance. Such\r\ndouble insurance is per se not frowned upon in law. The courts however, adopt a\r\ncareful approach in considering policies which seeks to exclude liability on the\r\npart of the insurer. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>46. The celebrated commentary on insurance, Colinvaux’s Law of Insurance,\r\nhas this to say on double insurance</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>Pg. 12-130: General definition. Double insurance arises where two or\r\nmore independent insurers cover the same interest against the same risk,\r\nthat is, there is a common liability18\r\n.\r\nAs a matter of principle, it is clear that there cannot be double insurance unless\r\nthere is in existence more than on valid policy attaching to the same interest.\r\nThere is, for example, no double insurance where one policy is substituted for\r\nanother19. For there to be double insurance the policies need not be identical\r\nbut may cover different subjects and different risks as well as the risk covered\r\nin common, but what is essential is that a common liability to indemnify the\r\nsame assured in respect of a specified loss must exist. The loss which more than\r\none insurer is liable to make good must be identical, so that payment of a claim\r\nby one insurer will provide a co-insurer with a defence to a like claim against\r\nit. In other words, two or more insurers must have insured the same assured in\r\nrespect of the same risk on the same interest in the same subject-matter.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>Pg. 12-131: Same assured and same interest Double insurance arises only\r\nwhere both policies cover the subject-matter which has been the subject of the\r\nloss. This is essentially a matter of construction of each of the policies. Thus, in\r\nBaag v Economic Insurance Co Ltd it was held that a lorry-load of cigarettes\r\ninsured under an all-risks transit policy did not form part of the assured\'s stock\r\nin trade at a factory at which the load had been temporarily stored, so that the\r\nfire insurers of the factory were not liable to contribute towards payments made\r\nby the all-risks insurers on the destruction of the factory and the load by fire.”</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>Pg. 12-132: Same assured and same interest. Generally, double insurance\r\narises where the same assured possesses two overlapping policies, although\r\nthere could potentially be double insurance where two assureds with the same\r\ninterest in the subject-matter insured that interest. It is more likely, however,\r\nthat different assureds will have different interests in the insured subject-matter,\r\nand there is no double insurance in that situation because each assured is\r\ninsuring his own interest. Typical illustrations include concurrent interests in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">land held by vendor and purchaser, landlord and tenant, employer and\r\ncontractor, or mortgagor and mortgagee, and concurrent interests in goods\r\nheld by bailor and bailee.Equally, there is no double insurance between a\r\nprimary policy and a subsequent excess of loss policy or between a primary\r\npolicy and an increased value policy.”</span><span style=\"font-size: 12pt;\"> </span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b> </b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>50. A contract of insurance is and always continues to be one for indemnity of\r\nthe defined loss, no more no less. In the case of specific risks, such as those arising\r\nfrom loss due to fire, etc., the insured cannot profit and take advantage by double\r\ninsurance.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>51. Levi could not have claimed more than what it did, and not in any case,\r\nmore than what it received from Allianz. Its endeavour to distinguish between the\r\nSTP Policy and the SFSP Policy, i.e., that the former covered loss of profits, and\r\nthe latter, the value of manufactured goods, is not borne out on an interpretation\r\nof the terms of the two policies. Even the facts here clearly show that Levi\r\nreceived substantial amounts towards the sale price of its damaged goods, over\r\nand above the manufacturing costs.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>52. In view of the foregoing discussion, the appeal has to succeed; the\r\nimpugned order of NCDRC is hereby set aside. Levi’s complaint is dismissed;\r\nconsequently, the appeal is allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '41fa78fad4a3ccc0d4dda6698813d94e.jpeg', '0e9b386040584fa57e6cc4b0ff7718c3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-05', 1, '', '', '2022-05-03 19:36:55', '2022-05-05 11:49:07');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1661, 'i75cio6gQD3YJvDUekh616PVf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Supreme Court cancels bail of the rape accused whose release on bail was celebrated with \'\'Bhaiya is Back\'\' posters. \'\'Such brazen conduct casts a doubt on free and fair trial\'\' - Supreme Court.   ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ms.P Vs The State of Madhya Pradesh and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 740 of 2022 decided on 5 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice N.V. Ramana, Justice Krishna Murari and Justice Kima Kohli.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The present appeal by way of special leave arises from an order dated 16th\r\nNovember, 2021, passed by the learned Single Judge of the High Court of\r\nJudicature for Madhya Pradesh; at Jabalpur in MCRC No. 55343 of 2021,\r\nwhereby an application filed by the respondent No. 2/accused under Section\r\n439 of the Code of Criminal Procedure, 19731\r\n has been allowed and he has\r\nbeen granted bail on furnishing a personal bond for a sum of ?1,00,000/-\r\n(Rupees One Lac only) with a solvent surety in the like amount to the\r\nsatisfaction of the trial court and certain other conditions imposed therein by\r\nthe learned Single Judge in connection with Crime No. 39/21 registered on&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the complaint of the appellant at P.S. Mahila Thana, Jabalpur, State of\r\nMadhya Pradesh, for the offences punishable under Sections 376(2)(n) and\r\n506 of the Indian Penal Code, 1860.&nbsp;</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. As can be discerned from the above decisions, for cancelling bail once\r\ngranted, the Court must consider whether any supervening circumstances\r\nhave arisen or the conduct of the accused post grant of bail demonstrates that\r\nit is no longer conducive to a fair trial to permit him to retain his freedom by\r\nenjoying the concession of bail during trial. To put it differently, in ordinary&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">circumstances, this Court would be loath to interfere with an order passed by\r\nthe Court below granting bail but if such an order is found to be illegal or\r\nperverse or premised on material that is irrelevant, then such an order is\r\nsusceptible to scrutiny and interference by the Appellate Court. Some of the\r\ncircumstances where bail granted to the accused under Section 439 (1) of the\r\nCr.P.C. can be cancelled are enumerated below: -</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\na) If he misuses his liberty by indulging in similar/other criminal\r\nactivity;</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>b) If he interferes with the course of investigation;</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>c) If he attempts to tamper with the evidence;</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>d) If he attempts to influence/threaten the witnesses;</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>e) If he evades or attempts to evade court proceedings;</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>f) If he indulges in activities which would hamper smooth\r\ninvestigation;</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>g) If he is likely to flee from the country;</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>h) If he attempts to make himself scarce by going underground\r\nand/or becoming unavailable to the investigating agency;</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>i) If he attempts to place himself beyond the reach of his surety.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>j) If any facts may emerge after the grant of bail which are\r\nconsidered unconducive to a fair trial.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. The explanation sought to be offered for the above by the learned counsel for\r\nthe respondent No.2 is that he is a student leader who belongs to a&nbsp;</b></span><b style=\"font-size: 12pt;\">community that celebrates the festival “Maa Narmada Jayanti” and the\r\nposters in question have nothing to do with his being released on bail.\r\nHowever, the captions referred to above with emojis of crowns and hearts\r\nthrown in for good measure, belie this version.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. Even if it is assumed that the posters in question were not contemporaneous\r\nto the release of the respondent No.2 from detention, the captions tagged to\r\nhis photographs on the social media highlight the superior position and power\r\nwielded by the respondent No.2 and his family in the society and its\r\ndeleterious impact on the appellant/complainant. The emojis of crowns and\r\nhearts tagged with the captions quoted above are devoid of any religious\r\nsentiments sought to be portrayed by the respondent No.2. On the other\r\nhand, they amplify the celebratory mood of the respondent No.2 and his\r\nsupporters on his having been released from detention in less than two\r\nmonths of being taken into custody for a grave offence that entails sentence\r\nof not less than ten years that may even extend to life. The brazen conduct of\r\nthe respondent No.2 has evoked a bona fide fear in the mind of the\r\nappellant/complainant that she would not get a free and fair trial if he remains\r\nenlarged on bail and that there is a likelihood of his influencing the material\r\nwitnesses. It is noteworthy that a representation has also been submitted by\r\nthe appellant’s father to the Superintendent of Police, District Jabalpur\r\nexpressing the very same apprehension.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>31. In view of the aforesaid facts and circumstances, we are of the considered\r\nopinion that the respondent No. 2 does not deserve the concession of bail.\r\nRelevant material brought on record has been overlooked by the High Court\r\nwhile granting him bail. The supervening adverse circumstances referred to\r\nabove, also warrant cancellation of bail. Accordingly, the impugned order is\r\nquashed and set aside and the respondent No. 2 is directed to surrender\r\nwithin one week from the date of passing of this order.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32. It is however clarified that the observations made above are confined to\r\nexamining the infirmity in the impugned order granting bail to the respondent\r\nNo.2 and his conduct thereafter and shall not be treated as an opinion on the\r\nmerits of the case which shall be decided on the basis of the evidence that\r\nshall be placed before the trial Court. This order shall also not preclude the\r\nrespondent No.2 from applying afresh for bail at a later stage, if any, new\r\ncircumstances are brought to light.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>33. The appeal is allowed and disposed of on the above terms</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '33fa0cc592603d87bfd01d257eb3b024.jpeg', 'f59da015e74f778d19f4ed69eaa43790.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-07', 1, '', '', '2022-05-07 17:11:20', '2022-05-07 07:02:49'),
(1662, 'ZSIZ1qOMwfLTGerD5afj69Gmi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Writ petition challenging registration of a sale deed is maintainable where the challenge is confined to illegality in registering the document. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Asset Reconstruction Company Limited Vs S.P.Velayutham and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2752 of 2022 decided on 4 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Gupta and Justice V. Ramasubramanian.   </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. Asset Reconstruction Company (India) Limited, to whom the Indian Bank assigned the loans and the underlying security of a particular borrower, has come up with the above appeals challenging the judgment of the Division Bench of the High Court of Judicature at Madras, reversing the  judgment of a learned Single Judge of the Court, by which the learned Single Judge held the registration of a sale­deed by the Registering Authority to be null and void.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. There is and there can be no dispute about the fact that while the Registering Officer under the Registration Act, 1908, may not be competent to examine whether the executant of a document has any right, title or interest over the property which is the subject matter of the document presented  for registration, he is obliged to strictly comply with the mandate of law contained in the various provisions of the Act. Therefore let us take a look at the scheme of the Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. The Registration Act,1908 is divided into XV parts. Part III comprising of Sections 17 to 22 contains provisions relating to registerable documents; Part­IV of the Act contains prescriptions regarding the time of presentation of documents for registration; PartV contains provisions  prescribing  and  regulating the place of registration of documents; Part­VI contains provisions relating to presentation of documents for registration and the procedure  on admission and denial of execution; Part­VII contains provisions for enforcing appearance of executants and witnesses; Part­XI contains provisions relating to the duties and powers of Registering Officers and Part­XII contains provisions relating to refusal to register and the remedies available against such refusal. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. Before we look at the relevant provisions of the Registration Act, 1908, it is necessary to note that “Registration of deeds and documents” falls in  Entry 6  of List III (Concurrent   List) of the SEVENTH SCHEDULE of the Constitution. Therefore, the Registration Act, 1908, which is a Central Act, can be seen as something which provides only a template upon which the States are entitled to make amendments. This is why amendments by  States galore in the Registration Act, 1908. Therefore, any interpretation of the provisions of the Act, should be in consonance with the scheme of the Act as applicable to the State involved in the litigation. For instance, registration of certain documents may be optional in some States but mandatory in some other States. Therefore, the interpretation made by this Court, of a provision as amended in its application to a particular State, cannot be applied blindly while interpreting the same provision as applicable to another State. Keeping this aspect in mind, let us now peep into the statutory provisions.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. Section 32 of the Act mandates that every document to be registered under the Act, irrespective of whether such a registration is compulsory or optional, shall be presented by any of the persons mentioned therein.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. The words “such person” appearing in clauses (b) and (c) of Section 32, correlate to the words “person executing or claiming under the same”, appearing in clause (a) of Section 32. In other words, clause (a) covers both the executant as well as the claimant of the document. Therefore, clauses (b) and (c) cover several persons who may represent the executant or the claimant. Since the controversy in several decisions of this Court has  revolved  around clause(c) of Section 32, it would be useful, for the purpose of easy appreciation, to break clause (c) into its several components as follows:­</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (i) by the agent of the person executing the document;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) by the agent of the person claiming under the document;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii) by the agent of the representative of the person executing the document;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv) by the agent of the representative of the person claiming under the document;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(v) by the agent of the assign of the person executing the document;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(vi) by the agent of the assign claiming under the document. It must be noted that the word “agent” appearing in clause (c) of section 32 goes not only with the words “such a person”, but also with the words “representative” and “assign”. This is for the reason that ‘representative’ and ‘assign’ are independently covered by clause (b) and hence if these words do not go with the word ‘agent’ then their appearance in clause (c) would be redundant.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. By virtue of the 2nd part of clause (c) of Section 32, it is necessary that if a document for registration is presented by any of the aforementioned  six  categories of persons, he should have been “duly authorized by a PoA executed and authenticated in the manner mentioned in the other provisions of the Act”. In other words, in cases where a document is presented for registration by the agent,</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) of the executant; or </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)  of the claimant; or </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii)  of the representative or assign of the executant or claimant, the same cannot be accepted for registration unless the agent is duly authorized by a PoA executed and authenticated in the manner provided in the Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. A careful look at Sections 32 and 33 will show that while speaking about PoA, these provisions do not use the word “registration”. While Section 32(c) uses the words “executed and authenticated”, Section  33(1) uses the words “recognised” and “authenticated”. Therefore it is clear that the word “authenticated” is not to be understood to be the same as “registered”. The reason why we say so is that Section 33(1) speaks only about authentication and not registration and clauses (a), (b) and (c) of Section 33(1) provides the list of persons competent to authenticate a PoA. Persons who are empowered by clauses (a), (b) and (c) of subsection (1) of Section 33 to authenticate a PoA are as follows:­</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) The Registrar or the Sub­Registrar within whose district or sub­district the principal resides, if such principal resides, at the time of execution of the PoA, in any part of India to which this Act applies;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)  Any Magistrate, if the principal resides in any part of India where this Act is not in force; </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii) A Notary Public, any Court, Judge, Magistrate, Indian Consul, Vice Consul or Representative of the Central Government, if the principal does not reside in India.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. It may be seen from the list of persons indicated above, that not all of them are Registrars and Sub­Registrars appointed in terms of Section 6 of the Registration Act, 1908. Under the Act, the power of registration is conferred only upon the Registrars and SubRegistrars appointed under the Act. But  clauses (b) & (c) of Section33(1) speaks  about  persons  other  than  Registrars  and Sub­Registrars. This is why, Section 32(c) as well as Section 33 use only the expression “authenticated” and not the word “registered”. But unfortunately several Courts have mixed­up these two words, resulting in applying the test in terms of Sections 17 and 18 for determining the validity of a PoA. 20. In fact the distinction between “authentication” and “registration” is spelt out very clearly in the Tamilnadu Registration Rules. It may be noted here that section 69(1) of the Registration Act, 1908, empowers the Inspector General of Registration </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)  to exercise general superintendence over all the registration offices in the territories 15 under the State Government; and </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)  to make rules consistent with the Act, in respect of matters provided in clauses (a) to (j) therein. These rules, by virtue of sub­section (2) of section 69, are required to be submitted to the State Government for approval and to be published in the official gazette after such approval. The rules so made in terms of section 69, in the State of Tamil Nadu, provide clarity on the distinction between authentication  and registration</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26. Sub­section (3) of Section 34 imposes three obligations upon the Registering Officer. These obligations are:­</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) To enquire whether or not such document was executed by the person by whom it is claimed to have been executed;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) To satisfy himself as to the identity of the person appearing before him and claiming to have executed the document;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii) To satisfy himself about the right of any person appearing as a representative, assign or agent, to so appear;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>29. What is covered by Section 32 (c) read with Section 33(1) is something different from what is covered by Section 34(3). While Section 32(c) read with Section 33(1) speaks about the entitlement of the person to present a document for registration, Section 34(3) speaks about the enquiry to be conducted and the satisfaction to be arrived at by the Registering Officer. Section 34(3)(c) imposes an obligation on the Registering Officer to satisfy himself about the right of a person appearing as a representative, assign or agent. This prescription has to be read with rule 46 of the Tamilnadu Rules. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>45. After analysing Sections 32 and 33 of the Registration Act, 1908 this Court came to the conclusion that whenever an agent  is authorised to  execute a document and present the same for registration and he accordingly executes the document in terms of PoA, he becomes the actual executant in so far as the Registering Authority is concerned and that therefore he becomes entitled under Section 33(a) to present it for registration. This Court further held that the authentication in terms of Section 33(1)(a) is required only in cases where Section 32(c) is invoked.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>49.  Actually, the registration of a document comprises of three essential steps among others. They are, </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)  execution of the document, by the executant signing or affixing his left hand thumb impression; </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (ii)  presenting the document for registration and admitting to the Registering Authority the execution of such document; and</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii) the act of registration of the document.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>50. In cases where a suit for title is filed, with or without the relief of declaration that the registered document is null and void, what gets challenged, is a combination of all the aforesaid three steps in the process of execution and registration. The first of the aforesaid three steps may be challenged in a suit for declaration that the registered document is null and void, either on the ground that the executant did not have a valid title to pass on or on the ground that what was found in the document was not the signature of the executant or on the ground that the signature of the executant was obtained by fraud, coercion etc. The second step of presentation of the document and admitting the execution of the same, may also be challenged on the very same grounds herein above stated. Such objections to the first and second of the aforesaid three steps are substantial and they strike at the very root of creation of the document. A challenge to the very execution of a document, is a challenge to its very DNA and any defect or illegality on the  execution, is congenital in nature. Therefore, such a challenge, by its very nature, has to be made only before the civil court and certainly not before the writ court.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>53. In suits for declaration of title and/or suits for declaration that a registered document is null and void, all the aforesaid three steps which comprise the entire process of execution and registration come under challenge. If a party questions the very execution of a document or the right and title of a person to execute a document and present it for registration, his remedy will only be to go to the civil court. But where a party questions only the failure of the Registering Authority to perform his statutory duties in the course of the third step, it cannot be said that the jurisdiction of the High Court under Article 226 stands completely ousted. This is for the reason that the writ jurisdiction of the High Court is to ensure that statutory authorities  </b></font></span><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">perform their duties within the bounds of law. It must be noted that when a High Court, in exercise of its jurisdiction under Article 226 finds that there was  utter failure on the  part of the Registering Authority to stick to the mandate of law, the Court merely cancels the act of registration, but does not declare the very execution of the document to be null and void. A declaration that a document is null and void, is exclusively within the domain of the civil court, but it does not mean that the High Court cannot examine the question whether or not the Registering Authority performed his statutory duties in the manner prescribed by law. It is well settled that if something is required by law to be done in a particular manner, it shall be done only   in  that manner and not otherwise. Examining whether the Registering Authority did something in the manner required by law or otherwise, is certainly within the jurisdiction of the High Court under Article 226. However, it is needless to say that the High Courts may refuse to exercise jurisdiction in  cases where the violations of procedure on the part of the Registering Authority are not gross or the violations do not shock the conscience of the  Court. Lack of jurisdiction is completely different from a refusal to exercise jurisdiction</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>54. In the case on hand, the appellant has not sought a declaration from the High Court that the execution of the document in question was null and void or that there was no title for the executant to transfer the property. The appellant assailed before the High Court, only the act of omission on the part of the Registering Authority to check up whether the person who claimed to be the power agent, had the power of conveyance and the power of presenting the document for registration, especially in the light to the statutory rules. Therefore, the learned Single Judge rightly applied the law and allowed the writ petition filed by the appellant, but the Division Bench got carried away by the sound and fury created by the contesting respondents on the basis of </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)  pendency of the civil suits; </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)  findings recorded by the Special Court for CBI cases; and</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii) the order passed by this Court in the SLP arising out of proceedings under Section 145 Cr.P.C. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>58. Therefore, in the light of </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)  the Tamilnadu Registration Rules discussed above;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) the statutory scheme of Sections 32 to 35 of the Act as well as other provisions as amended by the State of Tamilnadu; and</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii) the distinction between a challenge to the first 2 steps in the process of execution of a document and the third step concerning registration, we are of the considered view that the Division bench of the High Court was not right in setting aside the order of the learned single Judge.If the Registering Officer under the Act is construed as performing only a mechanical role without any independent mind of his own, then even Government properties  may be sold and the documents registered by unscrupulous persons driving the parties to go to civil court. Such an interpretation may not advance the cause of justice.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 59. Therefore, in fine, the appeals are allowed, the impugned order of the Division Bench is set aside and the order of the learned single Judge is restored. There will be no order as to costs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '73ba3f774a9fce826093ac6d59b3bb02.jpeg', 'b9b706ac497e0a25fe04dcd79ddc7b22.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-07', 1, '', '', '2022-05-07 17:55:38', '2022-05-07 22:51:07'),
(1663, 'mI61gp8G4E01jXgBI9ZErqziD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Non compliance with the procedure in appointing the arbitrator cannot be a ground to challenge the award by way of a writ petition bypassing the remedy of appeal under the A&C Act. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/s. Kelkar and Kelkar Vs M/s. Hotel Pride Executive Pvt. Ltd<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3479 of 2022 decided on 4 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.2 Feeling aggrieved and dissatisfied with the award made by the learned Arbitrator as well as the order passed by the learned trial Court passed as per Exhibit 10 in making the award a decree, instead of preferring appeals under the Arbitration Act, 1940, preferred a writ petition before the High Court under Articles 226 and 227 of the Constitution of India mainly on the ground that, before the learned Arbitrator was appointed, there was non-­compliance of Clause 56 of the Articles of Agreement and the procedure as required under Clause 56 was not followed.  By the impugned judgment and order the High Court has set aside the award made by the learned Arbitrator on the ground that the procedure as required under Clause 56 had not been followed. Consequently, the High Court has remanded the matter for de-novo consideration.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Having heard learned counsel appearing on behalf of the respective parties and considering the impugned judgment and order passed by the High Court, we are of the opinion that against the award made by the learned Arbitrator made under the Act and against an order passed by the learned trial Court making the award a decree and without availing the alternative statutory remedy available by way of appeal under the provisions of the Act, the High Court ought not to have entertained the writ petition under Articles 226 and 227 of the Constitution of India. When the statute provides a further remedy by way of appeal against the award and even against the order passed by the learned trial Court making the award a decree of the court, the High Court ought not to have entertained the writ petition and ought not to have set aside the award, in a writ petition under Articles 226 and 227 of the Constitution of India. In that view of the matter the impugned judgment and order passed by the High Court is unsustainable and the same deserves to be quashed and set aside. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. At this stage, learned counsel appearing on behalf of the respondent has prayed that in that view of the matter, liberty be reserved in favour of the respondent to take further recourse to law under the provisions of the Act which might have been available against the award made by the learned Arbitrator as well as the order passed by the  learned trial Court as per Exhibit 10 making the award a decree.  It is further prayed to make a suitable observation that whatever amount is already paid to the appellant – original claimant may be adjusted subject to the ultimate outcome and the further order that may be passed in future. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. In view of the above and for the reasons stated above, present Appeal succeeds. Impugned Judgment and Order passed by the High Court is set aside. However, liberty is reserved in favour of the respondent to take further recourse to law under the provisions of the Arbitration Act, 1940 and in accordance with law against an award made by the learned Arbitrator and the order passed by the learned trial Court passed as per Exhibit 10 making the award a decree of the court and if such proceedings are initiated within a period of four weeks from today, the same be considered in accordance with law and on its own merits without raising the issue with regard to limitation. It goes without saying that the amount already paid to the appellant – original claimant shall be subject to the ultimate outcome of the proceeding that may be initiated by the respondent.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. In view of the above and for the reasons stated above, present appeal is allowed to the aforesaid extent only. However, there shall be no order as to costs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd73b9c6f694f38b537be156e0a2e2c12.jpeg', '61873b57481afdfc2e5e773b59de3d08.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-13', 1, '', '', '2022-05-07 18:09:07', '2022-05-13 20:20:56');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1664, '1r7YOodoO1tRCFQtBUsOOU4Bf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Where the parties themselves refer dispute for arbitration and appoint arbitrator by mutual consent without an arbitration agreement, application to terminate mandate of the arbitrator and to substitute the arbitrator is not maintainable. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Swadesh Kumar Agarwal Vs Dinesh Kumar Agarwal and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 2935-2938 of 2022 decided on 5 May 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice M.R. Shah and Justice B.V. Nagarathna.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">1. The  present appeals arise out of impugned common judgment and order dated 07.09.2017 passed by the High Court of Madhya Pradesh Principal Seat at Jabalpur in Arbitration Case (AC) No. 29/2015 and in Writ Petition Nos. 11258/2010 and 11259/2010 and the order dated 17.11.2017 passed in Review Petition No. 655/2017, by which, the High Court in exercise of powers under section 11(6) of the Arbitration and Conciliation Act,  1996 (hereinafter referred to as the Act, 1996) has terminated the mandate of sole Arbitrator appointed by the parties themselves and has substituted the sole Arbitrator and has appointed a fresh Arbitrator on the ground that the mandate of the sole Arbitrator stood terminated in view of section 14(1)(a) of the Act, 1996.  This is on the basis that there was undue and unreasonable delay in proceeding with the arbitration proceeding by the Sole Arbitrator. By the impugned judgment and order, the High Court has also confirmed the order passed by the learned Trial Court dismissing the application filed under Order VII Rule 11 of Code of Civil Procedure (CPC) preferred by the appellant herein.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">2.3. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court terminating the mandate of sole Arbitrator under section 14(1)(a) of the Act, 1996, on an application filed under section 11(6) of the Act, 1996 and  dismissing the  writ petitions confirming the order passed by the learned Trial Court rejecting the application under Order VII Rule 11 of CPC, the appellant has preferred the present appeals.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">6.1 In the present case the sole Arbitrator was appointed by the parties themselves by mutual consent. There was no written agreement/contract   containing the arbitration clause.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">6.2. As per sub­section (2) of section 11, subject to sub­section (6), the parties are free to agree on a procedure for appointment of the arbitrator or arbitrators. Sub­section (5) of section 11 provides that in an arbitration with a sole arbitrator, failing any agreement referred to in sub­section (2), if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree, the court may appoint an arbitrator. However, in a case where there is an arbitration agreement and the written contract and the appointment procedure is agreed upon by the parties, sub­section (6) of section 11 of the Act, 1996 shall be attracted and on the eventualities occurring in sub­section (6) of section 11, a party may approach the High Court and request for appointment of an arbitrator, in exercise of powers under sub­section (6) of section 11 of the Act, 1996. Therefore, sub­section (5) of section 11 shall be attracted in a case where there is no procedure for appointment of an arbitrator agreed upon as per sub­section (2) of section 11 and sub­section (6) of section 11 shall be applicable in a case where there is a contract containing an arbitration  agreement and the appointment procedure is agreed upon. Thus, while referring the matter for arbitration there need not be any written contract containing any arbitration agreement. But the parties may themselves decide to refer the dispute for arbitration to the sole arbitrator by mutual consent. In that case or eventuality, sub­section (6) of section 11 shall not be attracted at all and therefore, in such a situation, the application under sub­section (6) of section 11 shall not be maintainable. An application under sub­section (6) of section 11 shall be maintainable only in a case where there   is   a   contract between the parties containing the arbitration agreement and the appointment procedure is prescribed and is agreed upon in writing.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">6.3. In the present case, the sole arbitrator was appointed by the parties themselves by mutual consent and in the absence of any written contract containing the arbitration agreement. Therefore, application under section 11(6) of the Act, 1996 in absence of any written agreement containing arbitration agreement was not maintainable at all.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">6.4.  Now the next question which is posed for consideration of this Court is, whether, in exercise of powers under subsection (6) of section 11 of the Act, 1996, the High Court can terminate the mandate of the sole arbitrator and substitute the arbitrator in view of section 14(1)(a) of the Act, 1996 on the ground that he has failed to act without undue delay and in such a situation aggrieved party has to approach the “court” to terminate his mandate.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">6.5. Sections 14 and 15 provide for termination of the mandate of the arbitrator. Section 14 of the Act, 1996 provides that the mandate of the arbitrator shall terminate and he shall be substituted by another arbitrator in case of any eventuality mentioned in section 14(1)(a). As per subsection (2) of  section 14, if a controversy remains concerning any of the grounds referred to in clause (a) of sub­section (1), a party may, apply to the “court” to decide on the termination of the mandate. The expression “court” is defined under section 2(e) of the Act, 1996, which reads as under: </span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\">“(e) “Court” means—</span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\">(i)  in the case of an arbitration other than international commercial arbitration, the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject­matter of the arbitration if the same had been the subject­matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes;</span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\">(ii)  in the case of international commercial arbitration, the High Court in exercise of its ordinary original civil  jurisdiction, having jurisdiction to decide the questions forming the subject­matter of the arbitration if the same had been the subject­matter of a suit, and in other cases, a High Court having jurisdiction to hear appeals from decrees of courts subordinate to that High Court;]”</span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\"><br></span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">6.6. Section 15 provides other grounds for termination of the mandate of the arbitrator. It provides that in addition to the circumstances referred to in section 13 or section 14, the mandate of an arbitrator shall terminate (a) where he withdraws from office for any reason; or (b) by or pursuant to an agreement of the parties. Where the mandate of an arbitrator is terminated on the aforesaid grounds mentioned in section 15(1)(a) and (b) in such a situation a substitute arbitrator shall have to be appointed and that too, according to the rules that were applicable to the appointment of the arbitrator   being replaced.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">6.7. Therefore, on a conjoint reading of section 13, 14 and 15 of the Act, if the challenge to the arbitrator is made on any of the grounds mentioned in section 12 of the Act, the party aggrieved has to submit an appropriate application before the Arbitral Tribunal itself. However, in case of any of the eventualities mentioned in section 14(1)(a) of the Act, 1996 and the mandate of the arbitrator is sought to be terminated on the ground  that the sole arbitrator has become dejure  and/or  defacto  unable to perform his functions or for other reasons fails to act without undue delay, the aggrieved party has to approach the concerned “court” as defined under section 2(e) of the Act, 1996. The concerned court has to adjudicate on whether, in fact, the sole arbitrator/arbitrators has/have become  de jure  and de facto unable to perform his/their functions or for other reasons he fails to act without undue delay. The reason why such a dispute is to be raised before the court is that eventualities mentioned in section 14(1)(a) can be said to be a disqualification of the sole arbitrator and therefore, such a dispute/controversy will have to be adjudicated before the concerned court as provided under section 14(2) of the Act, 1996. So far as the termination of the mandate of the arbitrator and/or termination of the proceedings mentioned   in  other provisions like in section 15(1)(a) where he withdraws from office for any reason; or (b) by or pursuant to an agreement of the parties, the dispute need not be raised before the concerned court. For example, where the sole arbitrator himself withdraws from office for any reason or when both the parties agree to terminate the mandate of the arbitrator and for substitution of the arbitrator, thereafter, there is no further controversy as either   the  sole arbitrator himself has withdrawn from office and/or the parties themselves have agreed to terminate the mandate of the arbitrator and to substitute the arbitrator. Thus, there is no question of raising such a dispute before the court. Therefore, the legislation has deliberately provided that the dispute with respect to the termination of the mandate of the arbitrator under section 14(1)(a) alone will have to be raised before the “court”. Hence, whenever there is a dispute and/or controversy that the mandate of the arbitrator is to be terminated on the grounds mentioned in section 14(1)(a),  such a controversy/dispute has to be raised before the concerned “court” only and after the decision by the concerned “court” as defined under section 2(e) of the Act, 1996 and ultimately it is held that the mandate of the arbitrator is terminated, thereafter, the arbitrator is to be substituted accordingly, that too, according to the rules that were applicable to the initial appointment of the arbitrator. Therefore, normally and generally, the same procedure is required to be followed which was followed at the time of appointment of the sole arbitrator whose mandate is terminated and/or who is replaced.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">7. Now the next question which is posed for consideration of this Court is, whether, in a case where the parties themselves have referred the dispute for arbitration and appointed and/or nominated the sole arbitrator by mutual consent and in the absence of any arbitration agreement and contract containing an arbitration agreement once the arbitrator is appointed, an application under section 11(6) of the Act, 1996 to terminate the mandate of the arbitrator and to substitute the arbitrator would be maintainable.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">7.2. As observed hereinabove, there  is  a difference and distinction between the arbitrator to be appointed under section 11(5) and under section 11(6) of the Act, 1996. As observed above, even in the absence of any arbitration agreement in writing between the parties, with consent the parties may refer the dispute for arbitration and appoint a sole arbitrator/arbitrators by mutual consent and parties may agree mutually on a procedure for  appointing   an arbitrator or arbitrators even in the absence of any written agreement. In such a situation and failing an agreement referred to sub­section  (2), the aggrieved party may approach the High Court for appointment of an arbitrator under sub­section (5) of section 11 and in such a situation sub­section (5) of section 11 shall be attracted. However, where there is a written agreement on the appointment procedure agreed upon by the parties and there is a failure to appoint an arbitrator or arbitrators, in that case, subsection (6) of section 11 shall be attracted and an aggrieved party may approach the  High Court  for appointment of an arbitrator under sub­section (6) of section 11 of the Act,1996. Therefore, an  application under section 11(6) of the Act, 1996 shall be maintainable only in a case where there is a written agreement and/or the contract containing the arbitration agreement and the appointment procedure agreed upon by the parties, application under section 11(6) of the Act, 1996 shall be maintainable. Otherwise, the application under section 11(6) of the Act, 1996 shall not be maintainable.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">9. Following the aforesaid decision in the subsequent decision of this Court in the case of S.P.  Singla Constructions Private Limited (supra), it is observed and held by this Court that once the arbitrator had been appointed as per clause 65 of the agreement (in that case) and as per provisions of the law, the arbitration agreement could not have been invoked for second time.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">11. In view of the aforesaid discussion and for the reasons stated above, it is observed and held as under: ­</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(i) That there is a difference and distinction between section 11(5) and section 11(6) of the Act, 1996;</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(ii) In a case where there is no written agreement between the parties on the procedure for appointing an arbitrator or arbitrators, parties are free to agree on a procedure by mutual consent and/or agreement and the dispute can be referred to a sole arbitrator/arbitrators who can be appointed by mutual consent and failing any agreement referred to section 11(2), section 11(5) of the Act shall be attracted and in such a situation, the application for appointment of arbitrator or arbitrators shall be maintainable under section 11(5) of the Act and not under section 11(6) of the Act;</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(iii) In a case where there is a written agreement and/or contract containing the arbitration agreement and the appointment or procedure is agreed upon by the parties, an application under section 11(6) of the Act shall be maintainable and the High Court or its nominee  can appoint an arbitrator or arbitrators in case any of the eventualities occurring under section 11(6) (a) to (c) of the Act;</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(iv) Once the dispute is referred to arbitration and the sole arbitrator is appointed by the parties by mutual consent   and   the   arbitrator/arbitrators  is/are so appointed, the arbitration agreement cannot be invoked for the second time;</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(v) In a case where there is a dispute/controversy on the mandate of the arbitrator being terminated on the ground mentioned in section 14(1)(a), such a dispute has to be raised before the  “court”, defined under section 2(e) of  the Act, 1996 and such a dispute cannot be decided on an application filed under section 11(6) of the Act, 1996.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">12. Now the next question which is posed for consideration of this Court is whether the learned Trial Court was justified in rejecting the application submitted by the appellant, which was filed to reject the applications under section 14 of the Act, in exercise of powers under Order VII Rule 11 of CPC is concerned, having gone through the averments in the application under Order VII Rule 11 of CPC, it appears and it is not in dispute that the application under section 14(2) of the Act was sought to be rejected on the ground that there was no undue delay on the part of the arbitrator and  therefore, his mandate is not required to be terminated under section 14(1)(a) of the Act, 1996. However, such a dispute is to be adjudicated on merits by the concerned court before whom the proceedings under section 14(2) of the Act were initiated and at the most, it can be said to be the defence, which was to be adjudicated by the concerned court. As per the settled position of law, at the stage of deciding the application under Order VII Rule 11 of CPC only the averments and allegations in the application/plaint are to be considered and not the written statement and/or reply to the application  and/or the defence. Therefore, as such the learned Trial Court rightly dismissed the application under Order VII Rule 11 of CPC.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\">13. In view of the aforesaid discussion and for the reasons stated above, the impugned judgment and order passed by the High Court is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. The controversy and/or the dispute, whether the mandate of the sole arbitrator under section 14(1)(a) of the Act, 1996 stands terminated or not shall have to be considered by the court on an  application filed under section 14(2) of the Act, 1996. It is reported that after the impugned order passed by the High Court, respondent Nos.1 and  3 have  withdrawn  their  applications   under section 14(2) of the Act, 1996. To do substantial justice between the parties and to ensure that respondent Nos. 1 and  3 are not left remediless, we direct that the application/applications submitted by respondent Nos. 1 and 3 before the concerned court under section 14(2) of the Act, 1996 shall stand revived. Now the concerned court before whom, the application/applications under section 14(2) of the Act, 1996 were filed, shall consider the same in accordance with law and on their own merits at the earliest and preferably within a period of four months from the date of receipt of the present order. It goes without saying, that if, ultimately, it is held that the mandate of the sole arbitrator is terminated as per section 14(1)(a) of the Act, 1996 and more particularly on the ground that there was undue delay on the part of the arbitrator in concluding the arbitration proceedings, the arbitrator has to be substituted and a fresh arbitrator has to be appointed by following the same procedure which was followed earlier while appointing the present sole arbitrator. In case the parties do not agree to the name of the sole arbitrator, the aggrieved party may approach the appropriate court for appointment of an arbitrator under section 11(5) of the Act. In case application(s) under section 14(2) of the Act is/are dismissed and it is held that the mandate of the sole arbitrator is not terminated and there was no undue delay on his part, in such a situation the sole arbitrator to conclude the arbitration proceedings </font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">and declare the award within a period of nine months from the decision of the court that will be taken under section 14(2) of  the Act,1996. The impugned judgment(s) and order(s) passed by the High Court in AC No. 29/2015 and in Review Petition No. 655/2017 are hereby quashed and set aside. The appeals arising out of the aforesaid orders are hereby accordingly  Allowed. However, the appeals challenging the impugned judgment and order passed in W.P. No. 11258/2010 and W.P. No. 11259/2010, confirming the order/orders passed by the learned Trial Court rejecting the application under Order VII Rule 11 of CPC are hereby dismissed. In the facts of the case, there shall be no order as to costs.</span></span></p>', 'a352e7fa46fed7ce6d93c461abaf277c.jpeg', '7758b3af53276e1d00b42b24459c715f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-14', 1, '', '', '2022-05-07 20:59:30', '2022-05-14 18:26:34'),
(1685, '9KUwhmDHFdpQlT7XkAO3dEGr2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court condones the delay of 20 years in seeking resumption of granted and later tenanted lands under the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Aswathappa Muniswamy and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 15263 of 2014 decided on 28 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice R. Devdas.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This writ petition arises out of the provisions contained in a special statute-Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978  </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Learned Senior Counsel Smt.S.Susheela, appearing for the petitioners refers to series of cases in O.Dyamappa Vs. Appanna Bhovi and others, 1997 (3) KLJ 683; Siddoji Rao Vs. State of Karnataka and others 1983 (1) Kar.L.J. 478, which were followed in Thirtharama and others Vs. State of Karnataka, ILR 2011 KAR 1231, which were later reiterated by the Division Bench of this Court in the case of Sri.K.C.Yogesh and another Vs. State of Karnataka and Others in W.A.No.92-93/2012 and connected matters dated 22.06.2012 and Sri.B.S.Kallappa Vs. The Deputy Commissioner, Chikkamagaluru and Others, in W.A.No.15844/2011 dated 08.06.2012, to submit that the issue whether a Land Tribunal could confer occupancy rights in respect of a land granted to a person belonging to the Scheduled Caste or Scheduled Tribe community is decided and no more resintegra. It is submitted that it is a settled position of law that having regard to the overriding provision contained in Section 11 of the PTCL Act, the Land Tribunal orders stand overridden by the provisions of the PTCL Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. The primary argument of the learned Counsel for the contesting respondents is that the lands in question are not granted lands, since they were granted under Rule 43-J of the Karnataka Land Grant Rules, 1969 and admittedly, no conditions of nonalienation were imposed in the Grant Certificates.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. In the considered opinion of this Court, when the word ‘granted land’ has been defined in the PTCL Act, there is no scope for reading into the definition what is not provided for.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. In Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92, a Constitutional Bench of the Apex Court held that wherever the words ‘means and include’ are used, it is an indication of the fact that the definition ‘is a hard–and–fast definition’, and no other meaning can be assigned to the expression that is put down in the definition. It indicates an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expression. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. Having these principles enunciated, when we read the definition of the word ‘granted land’, as defined in the Act, the plain meaning prescribes only two requirements, one, that a grant or land holding right is bestowed under the relevant Land Grant Rules or any of the relevant law relating to agrarian reforms or land ceiling or abolition of inams, except grants relating to hereditary offices; two, that such grant is made in favour of a person belonging to any of the Scheduled Caste or Scheduled Tribes. Further, in order to remove any ambiguity in cases where lands are ‘allotted’ or where ‘occupancy rights’ are granted under the provisions of any agrarian reforms or land ceiling laws or abolition of inam laws or any other rights so granted, it is clarified that they shall be construed as ‘granted lands’. All such orders bestowing rights to hold land, on persons belonging to the SC/ST community shall be construed as grants, irrespective of whether the particular statute uses the word ‘allot’, ‘grant occupancy rights’ or use any other word which confers a right of holding the lands. Therefore, when the plain reading of the provision does not admit any ambiguity, it is impermissible to read anything more into the definition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. The provision does not prescribe any further qualification and brings within its fold all the grants made under the relevant Rules without any reservation or exception. Therefore, all such grants, irrespective of whether the grant is made for full price, market value, upset price, reduced upset price or a portion of price is waived or a free grant, etc., all fall within the confines of the word ‘granted land’. In fact, in Kariyappa @ Kariyappa Vs. The Assistant Commissioner, Hassan and Others ILR 1997 Kar 1723, it was held that the purport and import of the definition is so wide that it includes not only agricultural lands but also house sites and nonagricultural lands. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. The concept of absolute sale is alien to the Karnataka Land Grant Rules, 1969. The confirmation of title under the Grant Rules, 1969, is by execution of a Grant Certificate in the prescribed format. Provision has been made for grant of land to religious and charitable institutions, industrial concerns in Rules 21 and 22. In Rule 22A which was inserted and brought into effect from 09.06.2015, the market value/rates fixed on lease basis earlier under Rules 19 to 22 were superseded and uniform market value or guidance value in respect of private bodies or institutions to whom grant is made on lease basis is provided for. However, even in respect of grant of land to industrial concerns, in terms of Rule 22, conditions of nonalienation for a period of thirty years is provided for. The Grant Certificates/Saguvali chits are issued as per Form-VII, in terms of Rule 29 only and there is no other form prescribed. The same Grant Certificate is prescribed even in respect of lands purchased in a public auction or on payment of upset price. The only difference between a free grant/reduced upset price and lands granted on payment of market value / full price/ upset price is regarding the stipulation of nonalienation conditions. Therefore, all such lands granted under the Karnataka Land Grant Rules, 1969, are ‘granted lands’. Similar is the situation even in respect of lands granted under the Mysore Land Revenue Code, 1888; Mysore Land Grant Rules, 1968 and all other relevant Land Grant Rules. Therefore, in the considered opinion of this Court, the contention of the learned Counsel for respondents that since nonalienation conditions are not imposed in the Grant Certificate, the lands in question are not granted lands as defined in the PTCL Act, is rejected as untenable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17. On the other hand, when a petition is filed under Section 5 of the PTCL Act, before the Assistant Commissioner, the Assistant Commissioner is required to find out, in terms of sub-section (1) of Section 4 of the Act, as to whether there is any transfer of such granted land, in contravention of the ‘terms of the grant’ of such land or the law providing for such grant. As noticeable, the Assistant Commissioner is required to enquire as to whether there is any contravention of the terms of the grant, on going through the Grant Certificate or whether the transfer is in contravention of the law providing for such grant. As regards, the second part of the provision, it has been well settled that if there is a conflict between the conditions imposed in the Grant Certificate and the law providing for such conditions, the law or the rule shall prevail. It is also a settled position, in terms of Guntaiah (supra) that if condition of non-alienation is incorporated in the Grant Certificate, it becomes unimpeachable at the hands of the purchaser. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. Having regard to the facts obtained in this writ petition, it is clear that there is no condition of non-alienation imposed in the Grant Certificate. However, we are not concerned, in the present context, as to whether there is any violation of the terms of the grant. This case falls under sub-section (3) of Section 5 and Section 11 of the PTCL Act </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. Sub-section (3) of Section 5 comes into play since it was claimed by the contesting respondents’ predecessors that they were tenants under the predecessors of the petitioners. The word ‘Transfer’ has been defined to include lease or any other transaction within its ambit. If the respondents had continued to be in possession of the lands without filing an application before the Land Tribunal seeking grant of occupancy rights, the petitioners had every right to approach the Assistant Commissioner, alleging that the respondents were in unauthorized occupation, then the Assistant Commissioner would have called upon the respondents to prove that they were in possession authorizedly and that they had not acquired the land by a transfer which is null and void under the provisions of sub-section(1) of Section 4. But, even before the PTCL Act was brought into force, the respondents approached the Land Tribunal seeking grant of occupancy rights, while contending that they were tenants under the petitioners. Right through the proceedings before the Land Tribunal, the petitioners have contended that the original applicants before the Tribunal namely, Sri.Byrappa and Sri.Pillappa were affluent and influential persons and they have used their clout to get their names entered in the RTCs as persons in possession of the lands. During the course of the proceedings before the Land Tribunal, the petitioners made an application before the Land Tribunal contending that the matter should be referred to the Assistant Commissioner under the provisions of the PTCL Act. This contention was negated by the Land Tribunal. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. In the considered opinion of this Court, the petitioners cannot be faulted on the premise that they could have approached the Assistant Commissioner earlier. The petitioners, having contended all through before the Land Tribunal that the respondents have never been their tenants and they were not entitled for grant of occupancy rights, were therefore entitled to await the outcome of the proceedings before the Tribunal. It was possible that the Land Tribunal would have accepted the contention of the petitioners and declared that the respondents were never the tenants occupying the lands in question. Nevertheless, when the Land Tribunal proceeded to hold that the respondents were tenants under the petitioners, the petitioners questioned the orders passed by the Tribunal before this Court. It is another matter that the said writ petition was dismissed for default by order dated 03.03.1997. The cause of action for the petitioners therefore arose from 03.03.1997, to approach the Assistant Commissioner, invoking the provisions of the PTCL Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21. Going by the decision of the Hon’ble Apex Court in the case of Satyan Vs. Deputy Commissioner and others, (2020) 14 SCC 210, having regard to the objective of the beneficial legislation to redress the grievance of the grantees belonging to the depressed classes, the delay of about 5 years in filing the petition before the Assistant Commissioner cannot be held to be so enormous that they deserve to be dismissed on the ground of delay and laches.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 22. Even in respect of the delay of about 6 years and 4 months in filing this writ petition, the same principles as espoused in Satyan’s case is applicable, having regard to the facts and circumstances narrated therein above. This presents a classic case of how grant made by the sovereign power in favour of persons belonging to the depressed classes are being cornered and usurped by the rich and the influential. There has been some criticism and heartburn expressed when orders are passed invoking the beneficial provisions of the PTCL Act while resuming and restoring the lands in favour of the original grantees. To some extent, it is understandable that the purchasers having purchased the lands after tendering the market value are thereafter evicted on the ground that they purchased the lands in contravention of the terms of the grant. However, in the present case no such transfer has happened. The respondents never claimed that a lease deed was executed in their favour. On the other hand, the Land Tribunal has conferred occupancy rights in favour of the respondents. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23. Such cases also bring to the fore the mechanical manner in which the Land Tribunals function, although they are entrusted with quasijudicial powers. 4 acres each were granted to 5 persons belonging to the depressed class. Two affluent persons claim to be tenants in respect of 12 acres and 8 acres respectively, under such persons of the depressed class. They claim to be personally cultivating the lands. No enquiry is made to find out as to the total extent of land held by such affluent persons. Although it is obvious that such vast extent of land could not have been cultivated personally, the statements of the neighbours are taken as gospel truth and orders are passed by the Land Tribunals, in many such cases, depriving the poor agriculturists of their lands and livelihood. Such cases also present stark reality of how the poor who are without any means of livelihood are further mired in the legal tangle which further expose such persons to answer difficult questions like–delay in approaching the authorities/ High Court and the Supreme Court. Lack of legal awareness, legal aid and lack of sufficient means, illiteracy, poverty are the bane of the poor litigants of this nation. Time and again the Apex Court has held that the laws and procedures should not become tools in the hands of the affluent to deprive the legitimate rights of the poor litigants. When Courts are dealing  with beneficial legislations such as the one on hand, provisions should be interpreted in such manner that it would sub-serve the objectives with which the statute is enacted.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25. Therefore, all the contentions raised at the hands of the contesting respondents are answered accordingly. The decisions cited by the learned Counsel for the respondents do not come to his rescue.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '54758cc322294ecdab78f2d8ef722c2b.jpg', 'ddac583c1a5d1b61928328b0f589a41d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-15', 1, '', '', '2022-05-16 01:37:53', '2022-05-16 02:01:01');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1665, '9uvtgvW071Y9sTe59HXdaUlKq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Pre-emption under the West Bengal Land Reforms Act, 1955. Deposit of the entire sale consideration plus 10% cannot be avoided on the pretext that amount shown in the sale deed is higher than the actual sale consideration. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Abdul Matin Mallick Vs Subrata Bhattacharjee and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3499 of 2022 decided on 5 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order passed by the High Court of Calcutta in C.O. NO. 4266 of\r\n2016 by which the High Court has dismissed the said writ petition\r\npreferred by the appellant herein and has confirmed the order passed by\r\nthe first Appellate Court allowing the application submitted by the respondents herein – pre-emptors, the original respondents –\r\nrevisionists before the High Court, the appellant herein - pre-emptee has\r\npreferred the present appeal arising out of SLP (C) No. 5394 of 2022.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.1 That the disputed property in question, which was the subject\r\nmatter of application for pre-emption before the Appropriate Authority\r\nunder the West Bengal Land Reforms Act, 1955 (hereinafter referred to\r\nas the “Act, 1955”) belonged to one Khudiram Bhattacharya, who died\r\non 17.04.2001 leaving behind him, surviving his widow Purnima\r\nBhattacharya who also died on 14.08.2001 and three sons namely\r\nSubrata, Debabrata and Ratan (the pre-emptors herein) and two\r\ndaughters Kalyani and Alpana, the vendors of the pre-emptee (appellant herein). On the death of Khudiram Bhattacharya and his widow, the\r\naforesaid three sons and two daughters inherited the property in\r\nquestion each having undivided 1/5th share therein. The daughters of the\r\noriginal owner - Khudiram Bhattacharya sold their undivided 2/5th share\r\nin the property in question to the appellant herein - pre-emptee - Abdul\r\nMatin Mallick vide registered sale deed dated 23.11.2011. The sale in\r\nfavour of the appellant by the daughters of the said Khudiram\r\nBhattacharya was sought to be pre-empted by the sons of said\r\nKhudiram Bhattacharya on the ground that their sisters have transferred\r\ntheir undivided share in the property in question to the appellant, a\r\nstranger to the said property without serving statutory notice under SubSection (5) of Section 5 of the Act, 1955. The said application under\r\nSection 8 of the Act, 1955 was registered as Misc. Pre-emption Case\r\nNo. 8 of 2012 before the learned Trial Court. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. At this outset, it is required to be noted that pre-emptors submitted\r\nthe application before the learned Trial Court under Section 5 of the Act,\r\n1955, in respect of the share sold by their sisters. Therefore, the\r\ncontesting respondents herein – the original pre-emptors sought to\r\nexercise their right as pre-emptors under the provisions of the Act, 1955.\r\nThe right of the pre-emption has been elaborately dealt with and\r\nconsidered by a Four Judge Bench of this Court in the case of Bishan\r\nSingh Vs. Khazan Singh, AIR 1958 SC 838, wherein at paragraph 11,\r\nit is observed and held as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“11. … (1) The right of pre-emption is not a right to the\r\nthing sold but a right to the offer of a thing about to be\r\nsold. This right is called the primary or inherent right. (2)\r\nThe pre-emptor has a secondary right or a remedial right\r\nto follow the thing sold. (3) It is a right of substitution but\r\nnot of re-purchase i.e. the pre-emptor takes the entire\r\nbargain and steps into the shoes of the original vendee.\r\n(4) It is a right to acquire the whole of the property sold\r\nand not a share of the property sold. (5) Preference being\r\nthe essence of the right, the plaintiff must have a superior\r\nright to that of the vendee or the person substituted in his\r\nplace. (6) The right being a very weak right, it can be\r\ndefeated by all legitimate methods, such as the vendee\r\nallowing the claimant of a superior or equal right being\r\nsubstituted in his place.”</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6.2 The submission/contention on behalf of the pre-emptee that, as in\r\nthe present case, alongwith the pre-emption application, the pre-emptors\r\ndid not deposit the entire sale consideration with 10% additional sale\r\nconsideration, and therefore their pre-emption application was not\r\nrequired to be further considered and no further enquiry as contemplated\r\nunder Section 9 of the Act, 1955 would be maintainable is concerned,\r\nidentical question came to be considered by this Court in the case of\r\nBarasat Eye Hospital and Ors. (supra) wherein at paragraphs 23 to\r\n33, it is observed and held as under: -</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“23. The historical perspective of this right was set forth\r\nby the Constitution Bench of this Court, as far back as in\r\n1962, in Bhau Ram case [Bhau Ram v. Baij Nath Singh,\r\nAIR 1962 SC 1476]. The judgment in Bishan Singh\r\ncase [Bishan Singh v. Khazan Singh, AIR 1958 SC 838]\r\npreceded the same, where different views, expressed in\r\nrespect of this law of pre-emption, have been set out, and\r\nthereafter the position has been summarised. There is no\r\npurpose in repeating the same, but, suffice to say that the\r\nremedial action in respect of the right of pre-emption is a\r\nsecondary right, and that too in the context of the “right\r\nbeing a very weak right”. It is in this context that it was\r\nobserved that such a right can be defeated by all\r\nlegitimate methods, such as a vendee allowing the\r\nclaimant of a superior or equal right to be substituted in its\r\nplace. This is not a right where equitable considerations\r\nwould gain ground. In fact, the effect of the right to preemption is that a private contract inter se the parties and\r\nthat too, in respect of land, is sought to be interfered with, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and substituted by a purchaser who fortuitously has land\r\nin the vicinity to the land being sold. It is not a case of a\r\nco-sharer, which would rest on a different ground.</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>24. The second aspect of importance is that given the\r\naforesaid position, even the time period for making the\r\ndeposit, under Section 8(1) of the said Act, has been held\r\nto be sacrosanct, in view of the judgment of this Court\r\nin Gopal Sardar case [Gopal Sardar v. Karuna Sardar,\r\n(2004) 4 SCC 252]. The very provision of Section 8(1) of\r\nthe said Act came up for consideration and, as held in that\r\ncase, if the time period itself cannot be extended and if\r\nSection 5 of the Limitation Act would not apply, while\r\ninterpreting Section 8 of the said Act, then the\r\nrequirement of deposit of the amount along with the\r\napplication, within the time stipulated is sacrosanct. The\r\namount to be deposited is not any amount, as that would\r\ngive a wide discretion to the pre-emptor, and any preemptor not able to pay the full amount, would always be\r\nable to say that, in his belief, the consideration was much\r\nlesser than what had been set out. If we read the\r\njudgment in Gopal Sardar case [Gopal Sardar v. Karuna\r\nSardar, (2004) 4 SCC 252], in its true enunciation and\r\nspirit, there is sanctity attached to both, the amount and\r\nthe time-frame. There cannot be sanctity to the timeframe, incapable of extension even by the Limitation Act,\r\nand yet, there be no sanctity to the amount.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>25. In the context of the Bihar Land Reforms (Fixation of\r\nCeiling Area and Acquisition of Surplus Land) Act, 1961,\r\nthe recent view of this Court, in the context of the relevant\r\nprovision (now repealed [ Vide Section 2 of the Bihar\r\nLand Reforms (Fixation of Ceiling Area and Acquisition of\r\nSurplus Land) (Amendment) Act, 2019.]), itself puts a\r\nprecondition for the exercise of the right of pre-emption,\r\nby requiring the deposit of the full stated purchase money\r\nand 10% of the purchase amount. In our view, it makes\r\nno difference that the proviso in Section 16(3) of that Act\r\nstates that “… no such application shall be entertained <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">…”, in the context of filing of applications, without the\r\ndeposit of the full amount. We may say so because, if we\r\nturn to Section 8(1) of the said Act, the right of preemption is activated “on deposit of the consideration\r\nmoney together with the further sum of 10% of that\r\namount”. Thus, unless such a deposit is made, the right of\r\na pre-emptor is not even triggered off. The provisions of\r\nSection 8 are explicit and clear in their terms.</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>26. Now turning to Section 9 of the said Act, from which,\r\napparently, some judgments of the Calcutta High Court\r\nhave sought to derive a conclusion that an inquiry into the\r\nstated consideration is envisaged. However, the\r\ncommencement of sub-section (1) of Section 9 is with “on\r\nthe deposit mentioned in sub-section (1) of Section 8\r\nbeing made…” Thus, for anything further to happen under\r\nSection 9 of the said Act, the deposit as envisaged under\r\nSection 8 of the said Act has to be made. It is only then\r\nthat the remaining portion of Section 9 of the said Act\r\nwould come into play.</b></i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">27. The question now is as to what would be the nature of\r\ninquiry which has been envisaged to be carried out by the\r\nMunsif. If Section 9, as it reads, is perused, then first, the\r\namount as mentioned in the sale transaction is to be\r\ndeposited, as per sub-section (1) of Section 8 of the said\r\nAct. Once that amount is deposited, the next stage is for\r\nthe Munsif to give notice of the application to the\r\ntransferee. The transferee thereafter, when enters\r\nappearance within the time specified, can prove the\r\nconsideration money paid for the transfer “and other\r\nsums”. Such other sums, if any, are as “properly paid by\r\nhim in respect of the land including any sum paid for\r\nannulling encumbrances created prior to the day of\r\ntransfer, and rent or revenue, cesses or taxes for any\r\nperiod”. The inquiry, thus envisaged, is in respect of the\r\namount sought to be claimed over and above the stated\r\nsale consideration in the document of sale because, in\r\nthat eventuality further sums would have to be called for, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">from the pre-emptor. In that context, the additional\r\namount would have to be deposited. Even in the event\r\nthat a pre-emptor raises doubts regarding the\r\nconsideration amount, enquiry into the said aspect can be\r\ndone only upon payment of the full amount, along with the\r\napplication. In this aspect, the phrase “the remainder, if\r\nany, being refunded to the applicant” would include to\r\nmean the repayment of the initial deposit made along with\r\nthe application, if considered to be excess. To give any\r\nother connotation to these sections would make both, the\r\nlatter part of Section 8 of the said Act and the inception\r\npart of Section 9 of the said Act, otiose. We do not think\r\nsuch an interpretation can be countenanced.</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>28. In our view, when the inquiry is being made by the\r\nMunsif, whether in respect of the stated consideration, or\r\nin respect of any additional amounts which may be\r\npayable, the pre-requisite of deposit of the amount of the\r\nstated consideration under Section 8(1) of the said Act\r\nwould be required to be fulfilled. The phraseology “the\r\nremainder, if any, being refunded to the applicant” would\r\nhave to be understood in that context. The word\r\n“remainder” is in reference to any amount which, on\r\ninquiry about the stated consideration, may be found to\r\nhave been deposited in excess, but it cannot be left at the\r\nown whim of the applicant to deposit any amount, which\r\nis deemed proper, but the full amount has to be\r\ndeposited, and if found in excess on inquiry, be refunded\r\nto the applicant.</b></i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>29. We are, thus, firmly of the view that the pre-requisite\r\nto even endeavour to exercise this weak right is the\r\ndeposit of the amount of sale consideration and the 10%\r\nlevy on that consideration, as otherwise, Section 8(1) of\r\nthe said Act will not be triggered off, apart from making\r\neven the beginning of Section 9(1) of the said Act otiose.</b></i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">30. We are not inclined to construe the aforesaid\r\nprovisions otherwise only on the ground that there are no </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">so-called “penal provisions” included. The provisions of\r\nSections 8 and 9 of the said Act must be read as they are.\r\nIn fact, it is a settled rule of construction that legislative\r\nprovisions should be read in their plain grammatical\r\nconnotation, and only in the case of conflicts between\r\ndifferent provisions would an endeavour have to be made\r\nto read them in a manner that they co-exist and no part of\r\nthe rule is made superfluous. [British India General\r\nInsurance Co. Ltd. v. Itbar Singh, AIR 1959 SC 1331] The\r\ninterpretation, as we have adopted, would show that\r\nreally speaking, no part of either Section 8, or Section 9 of\r\nthe said Act is made otiose. Even if an inquiry takes place\r\nin the aspect of stated consideration, on a plea of some\r\nfraud or likewise, and if such a finding is reached, the\r\namount can always be directed to be refunded, if\r\ndeposited in excess. However, it cannot be said that a\r\ndiscretion can be left to the pre-emptor to deposit\r\nwhatever amount, in his opinion, is the appropriate\r\nconsideration, in order to exercise a right of pre-emption.\r\nThe full amount has to be deposited.</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>31. We may also note that, as a matter of fact, the preemptor in the present case i.e. the respondent has not\r\nfiled any material to substantiate even the plea on the\r\nbasis of which, even if an inquiry was held, could a\r\nconclusion be reached that the stated consideration is not\r\nthe market value of the land.</b></i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>32. We also believe that to give such a discretion to the\r\npre-emptor, without deposit of the full consideration,\r\nwould give rise to speculative litigation, where the preemptor, by depositing smaller amounts, can drag on the\r\nissue of the vendee exercising rights in pursuance of the\r\nvalid sale deed executed. In the present case, there is a\r\nsale deed executed and registered, setting out the\r\nconsideration.</b></i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">33. We are of the view that the impugned order and the\r\nview adopted would make a weak right into a “speculative </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">strong right”, something which has neither historically, nor\r\nin judicial interpretation been envisaged.”</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6.3 Therefore, deposit of the entire sale consideration with additional\r\n10% of the sale consideration alongwith the pre-emption application is a\r\nstatutory and mandatory requirement and it is a pre-condition before any\r\nfurther enquiry as contemplated under Section 9 of the Act is held. In\r\nthe present case, admittedly, the pre-emptors had not deposited the\r\nentire sale consideration with additional 10% of the sale consideration\r\nalongwith the pre-emption application. The aforesaid aspects have not\r\nbeen considered either by the First Appellate Court or even by the High\r\nCourt in this case.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. Now, so far as the submission on behalf of the pre-emptors that\r\nthey bonafidely believed that the sale consideration mentioned in the\r\nsale deed is in favour of the vendee, who is an outsider (outside the\r\nfamily) was higher than the actual sale consideration and therefore, they\r\ndid not deposit the entire sale consideration with additional 10% of the\r\nsale consideration alongwith the pre-emption application is concerned, it\r\nis to be noted that the aforesaid cannot be a ground not to comply with\r\nthe condition of deposit as required under Section 8 of the Act, 1955. At\r\nthe most, such a dispute can be the subject matter of an enquiry\r\nprovided under Section 9 of the Act. As observed hereinabove, the\r\nenquiry under Section 9 with respect to the sale consideration in the sale <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">deed would be only after the condition of deposit of entire sale\r\nconsideration with additional 10% as provided under Section 8 of the Act\r\nhas been complied with.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>8. Now, so far as the submission on behalf of the pre-emptors that\r\nthe contention of non-deposit of the entire sale consideration with\r\nadditional 10% of the sale consideration by the pre-emptors was not\r\nraised before the Courts below and has been raised for the first time\r\nbefore this Court, and therefore the same be not considered/permitted to\r\nbe raised now, is concerned, it is to be noted that the said contention\r\nwould go to the root of the matter on maintainability of the pre-emption\r\napplication as without complying with the statutory requirements as\r\nmentioned under Section 8 of the Act, 1955, the same is not\r\nmaintainable. It is an admitted position that the pre-emptors had not\r\ndeposited the entire sale consideration with additional 10% of the sale\r\nconsideration along with the pre-emption application as required under\r\nSection 8 of the Act in the instant case.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In view of the aforesaid admitted position, we have considered the\r\nsubmission on behalf of the appellant on non-fulfillment of the condition\r\nmentioned in Section 8 of the Act.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. At this stage, it is required to be noted that even the High Court in\r\nthe impugned judgment and order has permitted the pre-emptors to\r\ndeposit the balance sale consideration. However, faced with the decision of this Court in the case of Barasat Eye Hospital and Ors.\r\n(supra) and in light of the observations made by us hereinabove that\r\nalongwith the pre-emption application, the pre-emptors have to deposit\r\nthe entire sale consideration with additional 10% and only thereafter the\r\nfurther enquiry can be conducted as per Section 9 of the Act, 1955 and\r\ntherefore, unless and until the same is complied with, the pre-emption\r\napplication would not be maintainable, the High Court is not justified in\r\npermitting the pre-emptors to now deposit the balance sale consideration\r\nwith additional 10% while deciding the revision application. Such a\r\ndirection/permission/liberty would go against the intent of Section 8 of\r\nthe Act, 1955.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. In view of the above and for the reasons stated above, present\r\nappeals succeed. The impugned judgments and orders passed by the\r\nHigh Court and that of the First Appellate Court are hereby quashed and\r\nset aside. Consequently, the pre-emption application submitted by the\r\noriginal pre-emptors – respondent Nos. 1 to 3 herein stands dismissed.\r\nRespondent Nos. 1 to 3 – original pre-emptors are permitted to withdraw\r\nthe amount, which they might have deposited either along with the preemption application and/or any subsequent deposit pursuant to the\r\norders passed by the High Court.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Present appeals are allowed accordingly.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> However, in the facts\r\nand circumstances of the case, there shall be no order as to costs.\r\nPending application(s), if any also stands disposed of.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2b2856cc24ea10a03b06130c9cf8fee4.jpeg', '912a59b1aaa807a1a3bc83896ce72b1e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-13', 1, '', '', '2022-05-08 02:37:55', '2022-05-13 15:22:26'),
(1666, '7RcHLbbCi3gXlxeBpyRCUJzvy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Where the substantive legitimate expectation is not ultra vires the power of the authority and the court is in a position to protect it, the State cannot be allowed to change course and belie the legitimate expectation of the parties. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>State of Bihar and others Vs Shiyama Nandan Mishra.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 7364 of 2014 decided on 5 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice  K.M Joseph and Justice Hrishikesh Roy.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The challenge here is to the judgment and order\r\ndated 30.4.2013 in CWJC Case No. 18793 of 2008 and\r\nanalogous cases whereby the Division Bench of the High\r\nCourt at Patna, granted relief to the writ petitioners\r\nand declared that the +2 lecturers, both in the\r\nGovernment and the nationalized (taken over) secondary\r\nschools, appointed pursuant to Advertisement No.1/87,\r\nhave always been part of the Bihar Subordinate\r\nEducation Service and thereby, they\r\nare entitled to be merged with the Bihar Education\r\nService Class II , pursuant to the\r\nGovernment decision dated 07.07.2006. The Court also\r\ninterfered with the impugned notification dated\r\n23.6.2009, which provided for the encadrement of the +2\r\nlecturers with the teachers in the nationalized\r\nsecondary schools, which was found to be in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contravention of Article 790 of the Bihar Education\r\nCode and also contrary to the Government’s decision\r\ndated 07.07.2006 and the Advertisement No. 1/87. Thus,\r\nthe impugned order dated 6.10.2006 and the notification\r\ndated 23.6.2009 were quashed and set aside.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. To understand the legal consequences arising\r\ntherefrom, useful reference can be made to R. V. Inland\r\nRevenue Commissioners, ex parte M.F.K. Underwriting\r\nAgents Ltd<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. Another facet of denial of legitimate expectations\r\nis underscored by the Court of Appeal of England and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Wales in the seminal case of Coughlan10, where the Court\r\npreferred to use abuse of power as one of the criteria\r\nfor testing whether a public body could resile from a\r\nprima facie legitimate expectation. In the Court’s\r\nopinion, if the government authority induced an\r\nexpectation which was substantive, the upsetting of\r\nthat expectation, through departure from the expected\r\ncourse of action in the absence of compelling public\r\ninterest, would be so unfair, that it would amount to\r\nabuse of power. In the present case, the abuse of power\r\nis discernible in the State’s disparate decision in\r\nencadring the +2 lecturers with the teachers of\r\nnationalized schools, notwithstanding the contrary\r\nrepresentation through the 1985 notification which\r\ncreated the +2 lecturer posts and the 1987\r\nadvertisement under which, the respondents entered\r\nservice. Such manifest departure from the projected\r\ncourse smacks of arbitrariness and the government\r\naction, to selectively protect the interest of the BES </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cadre, does not conform to rules of justice and fair\r\nplay.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34. Taking a cue from above, where the substantive\r\nlegitimate expectation is not ultra vires the power of\r\nthe authority and the court is in a position to protect\r\nit, the State cannot be allowed to change course and\r\nbelie the legitimate expectation of the respondents. As\r\nis well known, Regularity, Predictability, Certainty\r\nand Fairness are necessary concomitants of Government’s\r\naction and the Bihar government in our opinion, failed\r\nto keep to their commitment by the impugned decision,\r\nwhich we find was rightly interdicted by the High\r\nCourt.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36. In the earlier rounds, this court in Bihar State\r\nGovt. Secondary School Teachers Assn. Vs. Bihar\r\nEducation Service Assn. and also in the Contempt\r\nproceedings flowing therefrom in Bihar State Govt.\r\nSecondary School Teachers Assn. Vs. Ashok Kumar Sinha critically noted the vigorous attempts by the BES\r\nAssociation in obstructing the integration of the BSES <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">with the BES and the unfair conduct of the Bihar\r\ngovernment in safeguarding the interests of those in\r\nthe BES cadre. Those previous challenges to the merger\r\ndecision were rejected by the Court. As such the BES\r\nAssociation, as the party watching from the wings,\r\ncannot be permitted to secure now what they failed to\r\nachieve in the previous litigations. In circumstances\r\nlike this it needs to be said that in an adversarial\r\nlitigation, the fence sitters cannot be placed at par\r\nwith the front runners.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>38. Accordingly, no good reasons are seen to interfere\r\nwith the impugned judgment. The appeals stand dismissed\r\nwithout any order on costs. However, since the time\r\nstipulated by the High Court has expired, the State is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">granted 6 months’ time to ensure compliance with High\r\nCourt’s direction in letter and spirit.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5ed55a93cadec3c76f9a721027510133.jpeg', 'cff161729c2acd61b44ab2b90bd1779e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-10', 1, '', '', '2022-05-08 02:45:19', '2022-05-10 05:31:18'),
(1667, 'ElauNfljm7bU6HrjpQDrjRHFL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sum awarded under Section 31(7)(a) of the Arbitration and Conciliation Act,1996 does not include the interest pendente lite. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Delhi Airport Metro Express Vs Delhi Metro Rail Corporation.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3657 of 2022 decided on 5 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice L. Nageswara Rao and Justice B.R. Gavai</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The short question involved in the present appeal is, as to\r\nwhether the “sum” awarded under clause (a) of sub­-section (7)\r\nof Section  31  of the Arbitration and Conciliation Act,1996 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> would include the\r\ninterest pendente lite or not.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>6...Vide the impugned judgment and order dated 10th March, 2022, the learned Single Judge of the Delhi High Court issued certain directions with regard to the payment to be made by the respondent ­DMRC towards the satisfaction of the Award.   Vide the impugned judgment and order, the application(s) for impleadment filed by the Canara Bank and the Union Bank of India came to be rejected.  In the said   proceedings,   a   contention   was   raised   on   behalf   of   the appellant ­DAMEPL that the sum, as specified under clause (a) of sub­-section (7) of Section 31 of the 1996 Act, would include interest for a period from the date on which the cause of action arose to the date on which the award was made.  The said contention  was rejected by the learned Single Judge of the Delhi High Court by the impugned judgment and order.  Being aggrieved thereby, the present appeal by way of special leave.</b><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>13. It could thus be seen that the majority view of this Court in the case of Hyder Consulting (UK) Limited (supra) is that the sum awarded may include the principal amount and such interest as the Arbitral Tribunal deems fit. It is further held that, if no interest is awarded, the “sum” comprises only the principal amount. The majority judgment held that clause (a) of sub­section (7) of Section 31 of the 1996 Act refers to the total amount or sum for the payment for which the award is made.  As such, the amount awarded under clause (a) of subsection (7) of Section 31 of the 1996 Act would include the principal amount plus the interest amount pendente lite.  It was held that the interest to be calculated as per clause (b) of subsection (7) of Section 31 of the 1996 Act would be on the total sum arrived as aforesaid under clause (a) of sub­section (7) of Section 31 of the 1996 Act. S.A. Bobde, J. in his judgment, has referred to various authorities of this Court as well as Maxwell on the Interpretation of Statutes.  He emphasized that the Court must give effect to the plain, clear and unambiguous words of the legislature and it is not for the Courts to add or subtract the words, even though the construction may lead to strange or surprising, unreasonable or unjust or oppressive results.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>14. Sub­section (7) of Section 31 of the 1996 Act is already reproduced in the judgment of S.A. Bobde, J. in the case of Hyder   Consulting   (UK)   Limited  (supra). Applying   the principle of plain interpretation of the language employed by the legislature, the position that would emerge, on an analysis of clause (a) of sub­section (7) of Section 31 of the 1996 Act, is as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(i) It begins with the words “Unless otherwise agreed by the parties”;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(ii) where   and   insofar   as   an   arbitral   award   is   for   the payment of money, the Arbitral Tribunal may include interest component in the sum for which the award is made</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(iii) the   interest   may   be   at   such   rate   as   the   Arbitral Tribunal deems reasonable;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(iv) the interest may be on the whole or any part of the money; (v) the interest may be for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>15. It could thus be seen that the part which deals with the power of the Arbitral Tribunal to award interest, would operate if it is not otherwise agreed by the parties.  If there is an agreement  between  the parties to the contrary,  the Arbitral 17 Tribunal would lose its discretion to award interest and will have to be guided by the agreement between the parties. The provision is clear that the Arbitral Tribunal is not bound to award interest.  It has a discretion to award the interest or not to award.  It further has a discretion to award interest at such rate as it deems reasonable. It further has a discretion to award interest on the whole or any part of the money. It is also not necessary for the Arbitral Tribunal to award interest for the entire period between the date on which the cause of action arose and the date on which the award is made.  It can grant interest for the entire period or any part thereof or no interest at all. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>16. We find that in the present case, the words “unless otherwise agreed by the parties” would assume significance. The said words fell for consideration before this Court in the case of N.S. Nayak & Sons vs. State of Goa.  This Court in the said case had an occasion to consider the scope of the phrase unless otherwise agreed by the parties” in various provisions of the 1996 Act. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>22. An important aspect that has to be taken into consideration is that the 1996 Act itself emphasizes on party autonomy.  As such, the legislative intent is clear that when the parties have agreed to the contrary on any of the aspects as mentioned in clause (a) of sub­section (7) of Section 31 of the 1996 Act, the Arbitral Tribunal will cease to have any discretion and would be bound by an agreement between the parties. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>23. As already discussed hereinabove, any interpretation which would render the phrase “unless otherwise agreed by the parties” otiose or redundant will have to be avoided.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>31. It can thus clearly be seen that every judgment must be read as applicable to the particular facts proved, or assumed to be proved.  The generality of the expressions which are found in a judgment cannot be considered to be intended to be exposition of the whole law.  They will have to be governed and qualified by the particular facts of the case in which such expressions are to be found.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>34. As discussed hereinabove, in the case of Hyder Consulting (UK) Limited  (supra), there was   no   agreement between the parties with regard to the payment of interest and as such, the phrase “unless otherwise agreed by the parties”  did not fall for consideration in the said case.  As a caution, we have also gone through the judgment of the High Court from which the appeal arose to this Court in the case of  Hyder Consulting  (UK) Limited  (supra). A perusal of the said judgment would also reveal that there was no agreement between the parties with regard to payment of interest. As such, in the case of Hyder Consulting (UK) Limited  (supra), this Court did not have an occasion to consider the import of the phrase “unless otherwise agreed by the parties”.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>35. We are therefore of the considered view that in view of the specific agreement between the parties, the interest prior to the date of award so also after the date of award will be governed by Article 29.8 of the Concession Agreement, as has been directed by the Arbitral Tribunal.  The findings recorded by the Arbitral Tribunal have reached finality in view of the judgment and order dated 9th September, 2021, passed by this Court in Civil Appeal No.5627 of 2021 [arising out of Special Leave Petition (Civil) No.4115 of 2019].</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>36. We therefore, see no error in the observations of the learned Single Judge of the Delhi High Court in paragraph 30 of the impugned judgment and order dated 10th  March, 2022, passed in Execution Petition being OMP (ENF.) (COMM) No. 145 of 2021.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>37. In the result, we find no merit in the present appeal.  The\r\nappeal is accordingly dismissed. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1a01b9d6ae6e7f0b330bf7fd389d98c4.jpeg', 'a94de0c072eba2f39a8983789cb0fea4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-09', 1, '', '', '2022-05-08 03:09:33', '2022-05-09 15:09:22');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1668, 'pUrORBCrLQ4Qp7JZ7AppUXfll', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A purchaser has no right to claim declaration that acquisition proceedings are lapsed in terms of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Delhi Development Authority Vs Godfrey Phillips (I) Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3073 of 2022 decided on 6 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Gupta and Justice V. Ramasubramanian.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The challenge in the present appeal is to an order dated 9.12.2016\r\npassed by the High Court of Delhi whereby the writ petition filed by\r\nrespondent No. 11\r\n was allowed and the proceedings initiated under\r\nthe Land Acquisition Act, 18942\r\n were declared to have lapsed in\r\nterms of Section 24(2) of the Right to Fair Compensation and\r\nTransparency in Land Acquisition, Rehabilitation and Resettlement\r\nAct, 2013</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. Thereafter, the purchaser is said to have purchased the land in\r\nquestion vide sale deeds dated 30.8.1991 and 27.2.1991. Though,\r\nit is argued by the appellant that the sale deed was not registered,\r\nbut Mr. Kapil Sibal, learned senior counsel for the respondentpurchaser stated that the sale deeds were registered. However,\r\nthat is not a relevant consideration at this stage for the issues\r\narising in the present appeal as we proceed on the basis that land\r\nwas purchased by the purchaser.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. Learned counsel for the appellant argued that the purchaser has no\r\nright to claim lapse of acquisition proceedings in view of judgment\r\nof this Court reported as Meera Sahni v. Lt. Governor of Delhi  and three Judge Bench Judgment in M. Venkatesh v. Bangalore\r\nDevelopment Authority</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17 17 (2020) 8 SCC 129</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18 18 (2017) 6 SCC 751<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. We do not find any merit in the arguments raised by the learned\r\ncounsel for the purchaser. The writ petition was filed after the\r\ncommencement of the 2013 Act on a short question that the\r\nacquisition proceedings stand lapsed. This Court in Indore\r\nDevelopment Authority has held that twin conditions have to be\r\nsatisfied before proceedings can be said to be lapsed i.e.,\r\npossession not taken and/or compensation not paid. This Court\r\nexamining the question of payment or deposit in the light of the\r\nStanding Order No. 28 issued in 1909 by the State of Punjab and as\r\napplicable to Delhi also, provided five modes of payment in Paras\r\n74 and 75.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>35. The original land owner had filed a writ petition before the Delhi\r\nHigh Court but such writ petition was dismissed on 02.12.1985.\r\nThe Special Leave Petition was withdrawn on 12.09.1989 even\r\nthough the reservation was conveyed by the learned counsel\r\nappearing for the appellant. Such withdrawal was after the\r\njudgment of the High Court in Balbir Singh case. The original land\r\nowners have made a conscious decision not to continue with the\r\nSpecial Leave Petitions. Thus, all the objections which were\r\navailable to the original land owner including the purchaser up to\r\nthat stage cannot be permitted to be raised again.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>39. In the present case, as per the purchaser itself, the possession of\r\nPart A land comprising in Khasra No. 384 (4-6), 385 (4-6) and 390\r\n(4-6) total measuring 12 Bigha and 18 Biswa was taken by the\r\nAppellant and the compensation was paid. The argument is that in\r\nterms of the impugned orders of the High Court, the purchaser had\r\ndeposited Rs.16,61,774/-, therefore, the acquisition stand lapsed.\r\nSuch deposit is in turn based on the order of the High Court in\r\nBalbir Singh. The deposit by the purchaser, either in terms of the\r\nimpugned order or the order passed in Balbir Singh, is wholly\r\ninconsequential. The amount of compensation was paid on behalf\r\nof the appellant. Therefore, the compensation of the acquired land\r\npaid by the appellant cannot lead to lapsing of the acquisition in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">terms of Indore Development Authority. The purchaser in its\r\nwritten submissions had made no reference to the later judgments\r\nof this Court referred to above. The deposit in terms of the order of\r\nthe High Court will not lead to lapsing of the acquisition\r\nproceedings, such orders being absolutely being illegal. Thus, in\r\nrespect of Part A land, the purchaser cannot take shelter of the\r\norder, which had no legal value and stands nullified. Even\r\notherwise, there could not be any direction to deposit the amount\r\nnow after more than 25 years. The right which has been lost due\r\nto passage of time cannot be revived by virtue of deposit of the\r\namount subsequent to orders of the High Court.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>41. The purchaser had in fact filed a Writ of Mandamus for delivering\r\nthe possession of the entire acquired land. Such claim of\r\nMandamus shows that the purchaser is out of possession.\r\nTherefore, the condition in Indore Development Authority for\r\nlapsing of the acquisition is not satisfied. Therefore, as per the\r\npurchaser, the possession has been taken of the part of the land\r\nand compensation has been deposited in respect of the remaining\r\nland. Thus, the twin conditions as laid down by this Court are not\r\nsatisfied.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>43. Still further, the purchaser had purchased the property after\r\nvesting of the land with the State. In fact, in Manav Dharam\r\nTrust, earlier three Judge Bench judgment in M. Venkatesh was\r\nnot even referred to. The purchaser has no right to claim lapsing of\r\nacquisition proceedings in view of the recent larger Bench\r\njudgment of this Court reported as Shiv Kumar & Anr. v. Union\r\nof India & Ors. wherein the judgment rendered by two-Judge\r\nBench in Manav Dharam Trust was not found to be a good law.\r\nHence, the purchaser has no right to claim a declaration sought for.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>44. In view of the above, the appeal is allowed. The order passed by\r\nthe High Court is set aside. However, the appellant shall refund the\r\namount of Rs.16,61,774/- to the purchaser, without any interest as\r\nsuch deposit was a voluntary offer to deposit, in accordance with\r\nlaw. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '011072d6686f1a1d40ca9bb0bf1c5941.jpeg', 'b4446670ffee0c594d121b23c449d5d6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-07', 1, '', '', '2022-05-08 03:16:15', '2022-05-08 16:10:56'),
(1669, 'li4CgmG7pAatUoL4y9n1bifvA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Occupants of old age home have no right to remain in possession of the accommodation and/or claim injunction since they are only licensees.  Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Samarpan Varishtha Jan Parisar and others Vs Rajendra Prasad Agarwal and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3520 of 2022 decided on 6 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemat Gupta and Justice V. Ramasubramanian.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The challenge in the present appeal is to an order passed by the High\r\nCourt of Judicature at Allahabad dated 01.10.2021 whereby the\r\nrevision petition filed by the plaintiffs-respondents was allowed and\r\ninterim injunction was restored, as was granted by the learned Trial\r\nCourt.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Law recognizes three types of possession. One as that of an owner,\r\nincluding co-owners; second as a tenant, when a right is created in the\r\nproperty; and thirdly permissive possession, the possession which\r\notherwise would be illegal or that of as a trespasser. In the present\r\nappeal, we are concerned with the possession falling in third category.\r\nThis Court in a judgment reported as Associated Hotels of India v.\r\nR.N. Kapoor has held that in case of a licensee, the legal possession\r\ncontinues with the owner as in terms of Section 52 of the Indian\r\nEasements Act, 1882, grant of a mere right to do upon the property of\r\nanother, something which would in the absence of such right be\r\nunlawful. Thus, this is the essential characteristic which distinguishes\r\na license from a lease.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. In Sohan Lal Naraindas v. Laxmidas Raghunath Gadit , it has\r\nbeen held that a lease creates an interest in the property whereas a\r\nlicense creates no estate or interest in the immovable property of the\r\ngrantor. It was held as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>\r\n“8. A licence confers a right to do or continue to do something i<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">n or upon immovable property of grantor which but for the grant\r\nof the right may be unlawful, but it creates no estate or interest\r\nin the immovable property of the grantor. A lease on the other\r\nhand creates an interest in the property demised.”</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1 AIR 1959 SC 1262</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2 (1971) 1 SCC 276</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. In Maganlal Radia v. State of Maharashtra , a lessee filed a\r\npetition under Article 226 of the Constitution for the writ of Certiorari to\r\nquash and set aside the orders passed by the Collector, Bombay calling\r\nhim to vacate a plot situated on the Chowpatty Foreshore. One of the\r\nquestions examined was whether the petitioner had a right to continue\r\nin possession for as long as possible. It was held as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“1. …As a matter of substantive law, therefore, the petitioner\r\nhas no colour of right to remain in possession of the suit\r\npremises and has no answer to the respondents’ claim that he\r\nshould vacate the land in question, and the present petition\r\nappears to have been filed merely for the purpose of gaining\r\ntime and remaining in possession as long as possible.”</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. The High Court declined to entertain the petition on the ground that\r\nthe petitioner was merely a licencee. It was held that the injustice that\r\nwould have been caused if the present petition was entertained would\r\nbe greater in view of the fact that the licence was for a purely\r\ntemporary purpose.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. In another judgment reported as Behram Tejani & Ors. v. Azeem\r\nJagani, the respondent in appeal filed a suit claiming injunction,\r\nrestraining the defendants from dispossession of the plaintiff from the\r\nsuit premises. This Court held as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“14. Thus, a person holding the premises gratuitously or in the\r\ncapacity as a caretaker or a servant would not acquire any right\r\nor interest in the property and even long possession in that\r\ncapacity would be of no legal consequences. In the\r\ncircumstances, the City Civil Court was right and justified in\r\nrejecting the prayer for interim injunction and that decision\r\nought not to have been set aside by the High Court. We,\r\ntherefore, allow the appeal, set aside the judgment under appeal\r\nand restore the order dated 29-4-2013 passed by the Bombay\r\nCity Civil Court in Notice of Motion No. 344 of 2013 in Suit No.\r\n408 of 2013.”</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. It is an unfortunate situation when the parents cannot be taken care of\r\nby the children, but the fact remains that abandonment of parents by\r\ntheir children is now a hard fact of life. Parents do find it difficult to\r\nreconcile the situation that at that age they have to stay in old age\r\nhome. Therefore, one can understand the mental trauma which the\r\nparents face in the evening of their life but the agony suffered by a\r\nparent cannot be a cause of disturbance to the other inmates or to the\r\norganizers who have resolved to take care and run the old age home.\r\nThe inmates in the old age home are licensees and are expected to\r\nmaintain a minimum level of discipline and good behaviour and not to\r\ncause disturbance to the fellow inmates who are also senior citizens.\r\nTherefore, if one parent is the cause of disruption of peace of other <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">inmates in the old age home, the administration of the old age home is\r\nat liberty to terminate the license and ask the inmate to vacate the\r\nroom allotted to them. Even if the organizers of the old age home are\r\nnot able to meet the expectation or requirements of the plaintiffs, that\r\nwould not confer a cause to the plaintiffs to disturb the other inmates.\r\nAs a licensee, the plaintiffs have no right to stay in the accommodation\r\nallotted which is purely an approach to a human problem faced by the\r\npeople in old age. The plaintiffs have even been offered alternative\r\naccommodation as well.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">25. As a licensee, the plaintiffs cannot seek an injunction to stay in the old\r\nage home unless they allow other inmates, a peaceful co-existence.\r\nTherefore, we find that the injunction granted by the High Court suffers\r\nfrom patent illegality. Therefore, the injunction granted by the High\r\nCourt is not warranted in law.</span><i><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. With the aforesaid directions and liberty, the present appeal is allowed\r\nand ad-interim injunction sought by the plaintiffs–respondents stand\r\ndismissed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9f1429e44c030ff91317602761c662cc.jpeg', 'ca5b580e0ef753bed8cbd5ccf711bab5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-09', 1, '', '', '2022-05-08 16:09:15', '2022-05-09 12:22:45'),
(1670, 'QKzmIduD8SMZ2kVf4W5k49d3c', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Registration of a sale deed on the basis of a power of attorney will be illegal if the POA does not expressly confer power to sell. Such a registration can be questioned by way of a writ petition. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Asset Reconstruction Company Limited Vs S.P.Velayutham and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2752 of 2022 decided on 4 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Gupta and Justice V. Ramasubramanian.   </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. Asset Reconstruction Company (India) Limited, to whom the Indian Bank assigned the loans and the underlying security of a particular borrower, has come up with the above appeals challenging the judgment of the Division Bench of the High Court of Judicature at Madras, reversing the  judgment of a learned Single Judge of the Court, by which the learned Single Judge held the registration of a sale­deed by the Registering Authority to be null and void.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>11. There is and there can be no dispute about the fact that while the Registering Officer under the Registration Act, 1908, may not be competent to examine whether the executant of a document has any right, title or interest over the property which is the subject matter of the document presented  for registration, he is obliged to strictly comply with the mandate of law contained in the various provisions of the Act. Therefore let us take a look at the scheme of the Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p><b>46. But we are not concerned in this case with the question whether the PoA relied upon by the power agent S.P. Velayutham in the sale deed   executed   by   him,   required   authentication   and   whether   the Registering Authority committed a blunder in accepting the sale deed presented by him for registration, without verifying the authentication of   the   PoA  or   not.   We  are  concerned   in  this  case  with   the   most fundamental question whether the Registering Authority could have turned a blind eye to the fact that the deed of PoA on the basis of which the sale deed was executed as well as presented for registration by S.P. Velayutham contained an express prohibition for the power agent to create an encumbrance on the property. </b></p><p><b>49.   Actually, the registration of a document comprises of three essential   steps   among   others.   They   are,  (i)  execution   of  the document,   by   the   executant   signing   or   affixing   his   left   hand thumb impression;  (ii)  presenting the document for registration and admitting to the Registering Authority the execution of such document; and (iii) the act of registration of the document.</b></p><p><b>50. In cases where a suit for title is filed, with or without the relief of declaration that the registered document is null and void, what gets challenged, is a combination of all the aforesaid three steps in the process of execution and registration. The first of the aforesaid three steps may be challenged in a suit for declaration that the registered document is null and void, either on the ground that the executant did not have a valid title to pass on or on the ground that what was found in the document was not the signature of the executant or on the ground that the signature of the executant was obtained by fraud, coercion etc. The second step of presentation of the document and admitting the execution of the same, may also be challenged on the very same grounds hereinabove stated. Such objections to the first and second of the aforesaid three steps are substantial and they strike at the very root of creation of the document. A challenge to the very execution of a document, is a challenge to its very DNA and any defect   or   illegality   on   the   execution,   is   congenital   in   nature. Therefore, such a challenge, by its very nature, has to be made only before the civil court and certainly not before the writ court.</b></p><p><b>51. The third step namely the act of registration, is something that the Registering Authority is called upon to do statutorily. While the executant   of   the   document   and   the   person   claiming   under   the document (claimant) are the only actors involved in the first two steps, the Registering Officer is the actor in the third step. Apart from the third step which is wholly in the domain of the Registering Authority, he may also have a role to play in the second step when a document is presented for registration and the execution thereof is admitted. The role that is assigned to the Registrar in the second step is that of verification of the identity of the person presenting the document for registration. </b><br></p>', 'f6edc20e906706004a52a9be00847b97.jpeg', 'cc553ec21446ce5013628926f7c4ff7e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-08', 1, '', '', '2022-05-08 16:25:36', '2022-05-09 00:59:01'),
(1674, 'Z1W5lUWkoHvZ90SuYCfsWV7uN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Rajakaluve, Nala, village path etc shown in village map can not be insisted or relied upon if the same are not shown in the Master Plan prepared and published under the KTCP Act. Karnataka High Court.  ', '<p><b>Soba Developers Limited vs Bruhat Bangalore Mahanagarapalike and others.&nbsp;<br>Writ Petition 44277 of 2011 decided on 10 February 2012</b></p><p><b>20. Petitioner has produced along with the rejoinder filed on 22.11.2011, a Revised Master Plan 2015, and the proposed land use map in respect of the area in question. The drain passing in the lands in question is indicated with two parallel green lines under the category Hydrography. The area earmarked in purple colour is shown as industrial area, whereas the area shown in yellow colour is the residential area. It is not in dispute that the petitioner has got the area that was earlier reserved for industrial purpose changed into residential purpose. It is also not in dispute that as per the Master Plan, its construction is in the area meant for residential purpose including the portion for which the petitioner got the change of land use from industrial to residential purpose. Admittedly, there is no other drain, nala or pathway in the Master Plan to demonstrate that the petitioner had deviated the same for the&nbsp;purpose of putting up construction. It is also evident from Annexure-C survey sketch prepared by the BDA on 03.03.2006 that no Nala or pathway as claimed by the respondent-Corporation has been shown to be running in the lands in question as is sought to be projected in the survey sketch prepared by the Surveyor based on the village map Annexure-C - Sketch prepared by the BDA is prior to the date on which the petitioner was granted icense.</b></p><p><b>21. As rightly contended by the Counsel for the petitioner, once the Master Plan is prepared indicating the existence of roads, drains, streets etc., and particularly the Planning Authority at an undispuied point of time had prepared a sketch of the lands wherein no such passage of Nala in the middle of the property or the existence of pathway therein was shown, it is not open for the Corporation at such a belated stage to raise an objection solely based on the village map to contend that the existing Nala was deviated by the petitioner. It is to be noticed that the draft of the Master Plan would be published and sent to the Government enclosing the report of the survey conducted and after taking into consideration all the relevant aspects, the Master Plan submitted by the Planning Authority viz., BDA for&nbsp;approval and the same is approved. The BBMP, at no stagé had raised any objection nor is there anything to show that anybody had raised any objection to the contents of the revised Master Plan when the objections were called for. The Revised Master Plan 2015 has come into effect on 25.06.2007. The Master Plan contains showing of lands, street pattern, areas reserved for parks, playgrounds and other civic amenities or for public purpose as also areas of special control and development. In such circumstances, the objection raised by the Corporation at the stage of grant of underground cable connection to the occupants of the premises is wholly unjustified. Section 505 of the Karnataka Municipal Corporations Act, 1976, makes it clear that exercise of powgrs by the Corporation shall be in conformity with the provisions of the Karnataka Town and Country Planning Act. 1961, with regard to any matter relating to land use or development as defined in the explanation to Section 14.&nbsp;</b></p><p><b>22. Section 76M of the Karnataka Town &amp; Country Planning Act, 1961, gives primacy to all the provisions of the Act over any other provisions of any other law. It is not the case of the respondents that there is any violation of the usage mentioned&nbsp;in the Master Plan or the building plan sanctioned and when there is no grievance made regarding the violations of any set backs or permissible vacant areas to be set part, it is not understandable how the Corporation can, by referring to a village map deny permission for road cutting after the petitioner put up construction by investing huge amount of money. The plan is sanctioned on 23.03.2007. The commencement certificate and work order has been issued by the BDA followed by the work order. if such event. how the Corporation can come to the conclusion that the original path or stream/nala has been deviated and its width is reduced by 10 feet before deviating its roule is not ciear.</b></p><p><b>23. As rightly urged by the learned Counsel for the petitioner. Section 61-All) deals with the power of the Standing Committee: It is not demonstrated how the Corporation can defer or deny the permission sought for road cutting stating that the matter is seized by the Standing Committee. Nothing is pointed out regarding the powers and functions of the Standing Committee to go into this aspect of the matter, particularly when the complaint is not with regard to the violation of the buildinaplan or deviation from the usages&nbsp;mentioned in the revised master plan. The Corporation undoubtedly has to ensure that the existing Nalas and the drains have to be kept intact and no encroachment is made by any private parties on the same. They have every right to prevent the obstruction to be caused for free flow of water in the Nala/drain. The existence of the drain in the instant case is also evident from the master plan. The survey sketch now prepared now prepared also discloses that the nala is in existence and the same is constructed on the sites by the petitioner as it passes by the side of the petitioner\'s construction. If the width of the nala is reduced only at the place where the nala passes through the properties of the petitioner and if the Corporation on expert\'s opinion finds that the reduced passage would cause flooding in the area in and around then the best course is to find a solution to the problem by engaging the petitioner and owners of the area over&nbsp;which the nala passes for widening the nala in the interest of their own safety and security. The Corporation can also resort to other legal measures in this connection. But that does not cable the Corporation to block the entire project that is either substantially completed, in respect of some blocks or nearing&nbsp;completion in respect of several others from being occupied or enjoyed. Such an action is totally arbitrary and unreasonable.</b></p><p><b>24. The reasons assigned in the impugned endorsement to deny the permission for road cutting are legally untenable. Interim order passed in the connected writ petition cannot be a ground to deny the said permission as the interim order passed is restraining the respondents from in any manner interfering with the peaceful possession and enjoyment of the schedule property owned by the petitioner. The connected petitions are filed seeking a direction restraining (he respondents from in any manner trespassing on the schedule property belonging to the petitioner and/or in art marner demolishing or attempting to demolish the construction or any of its peripheral compound wall or other structures erected by the petitioner on the schedule property. Now the said writ petition does not survive&nbsp;for consideration in view of the order passed in this case setting aside the impugned endorsement. </b></p><p><b>25.&nbsp;For all the aforementioned reasons, W.P.No.44277/2011 is allowed.</b><br><br></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b>&nbsp;</b><br></p>', '9cb4ff6a6cb8a0786aad9b609ff945e9.jpg', '7d37a3283dc4e94b2a7acd7f34fed7fb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-09', 1, '', '', '2022-05-09 16:41:15', '2022-05-09 16:41:15'),
(1671, 'IkXmG2omIRZsgWdaXI3MinfTP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Res judicata is a a mixed question of law and fact depending upon the pleadings of the parties, the parties to the suit etc. Trial courts cannot frame preliminary issue on res judicata to dispose suit. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sathyanath and another Vs Sarojamani<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3680 of 2022 decided on 6 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemat Gupta and Justice V. Ramasubramanian.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The challenge in the present appeal is to an order dated 3.9.2021\r\nwhereby in the revision petition filed by the defendant under Article\r\n227 of the Constitution of India, the trial court was directed to frame\r\npreliminary issue as to whether the suit is barred by res judicata.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. The provisions of Order XIV Rule 2 are part of the procedural law, but\r\nthe fact remains that such procedural law had been enacted to ensure\r\nexpeditious disposal of the lis and in the event of setting aside of\r\nfindings on preliminary issue, the possibility of remand can be avoided,\r\nas was the language prior to the unamended Order XIV Rule 2. If the\r\nissue is a mixed issue of law and fact, or issue of law depends upon the\r\ndecision of fact, such issue cannot be tried as a preliminary issue. In\r\nother words, preliminary issues can be those where no evidence is\r\nrequired and on the basis of reading of the plaint or the applicable law,\r\nif the jurisdiction of the Court or the bar to the suit is made out, the\r\nCourt may decide such issues with the sole objective for the\r\nexpeditious decision. Thus, if the Court lacks jurisdiction or there is a\r\nstatutory bar, such issue is required to be decided in the first instance\r\nso that the process of civil court is not abused by the litigants, who\r\nmay approach the civil court to delay the proceedings on false pretext.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. The different judgments of the High Court referred to above are in\r\nconsonance with the principles laid down by this Court in Ramesh B.\r\nDesai that not all issues of law can be decided as preliminary issues.\r\nOnly those issues of law can be decided as preliminary issues which\r\nfell within the ambit of clause (a) relating to the “jurisdiction of the\r\nCourt” and (b) which deal with the “bar to the suit created by any law\r\nfor the time being in force.” The reason to substitute Rule 2 is to avoid\r\npiecemeal trial, protracted litigation and possibility of remand of the\r\ncase, where the appellate court differs with the decision of the trial\r\ncourt on the preliminary issues upon which the trial court had decided.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. A perusal of the above judgment of this Court shows that it was an\r\nadmitted fact that issue of res judicata and of constructive res judicata\r\ncan be adjudicated as preliminary issue. Since it was an admitted fact,\r\nit cannot be said that principle of law has been enunciated that a plea <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of res judicata can be decided as a preliminary issue.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. This Court was thus examining the scope of Order VII Rule 11 of the\r\nCode, whereas such is not the issue in the present appeal. In fact, the\r\ndefendant has filed an application for framing of preliminary issues.\r\nThe direction of the High Court is on such application. Therefore, such\r\napplication needs to be considered in the light of the provisions of\r\nOrder XIV Rule 2 of the Code.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>31. We find that the order of the High Court to direct the learned trial court\r\nto frame preliminary issue on the issue of res judicata is not desirable\r\nto ensure speedy disposal of the lis between parties. Order XIV Rule 2\r\nof the Code had salutary object in mind that mandates the Court to\r\npronounce judgments on all issues subject to the provisions of sub-Rule\r\n(2). However, in case where the issues of both law and fact arise in the\r\nsame suit and the Court is of the opinion that the case or any part\r\nthereof may be disposed of on an issue of law only, it may try that suit\r\nfirst, if it relates to jurisdiction of the Court or a bar to the suit created <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by any law for the time being in force. It is only in those circumstances\r\nthat the findings on other issues can be deferred. It is not disputed\r\nthat res judicata is a mixed question of law and fact depending upon\r\nthe pleadings of the parties, the parties to the suit etc. It is not a plea\r\nin law alone or which bars the jurisdiction of the Court or is a statutory\r\nbar under clause (b) of sub-Rule (2).\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">32. The objective of the provisions of Order XLI Rules 24 and 25 is that if\r\nevidence is recorded by the learned Trial Court on all the issues, it\r\nwould facilitate the first Appellate Court to decide the questions of fact\r\neven by reformulating the issues. It is only when the first Appellate\r\nCourt finds that there is no evidence led by the parties, the first\r\nAppellate Court can call upon the parties to lead evidence on such\r\nadditional issues, either before the Appellate Court or before the Trial\r\nCourt. All such provisions of law and the amendments are to ensure\r\none objective i.e., early finality to the lis between the parties.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>33. Keeping in view the object of substitution of sub-Rule (2) to avoid the\r\npossibility of remanding back the matter after the decision on the\r\npreliminary issues, it is mandated for the trial court under Order XIV\r\nRule 2 and Order XX Rule 5, and for the first appellate court in terms of\r\nOrder XLI Rules 24 and 25 to record findings on all the issues.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. Therefore, the order of the High Court remanding the matter to the\r\nlearned trial court to frame preliminary issues runs counter to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">mandate of Order XIV Rule 2 of the Code and thus, not sustainable in\r\nlaw. The learned trial court shall record findings on all the issues so\r\nthat the first appellate court has the advantage of the findings so\r\nrecorded and to obliviate the possibility of remand if the suit is decided\r\nonly on the preliminary issue.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>35. Consequently, the appeal is allowed. The order passed by the High\r\nCourt is hereby set aside.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fe72398d2273917b198fcd9fcee3cc92.jpeg', '656c267b22fa9f837fb519895cc4367a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-08', 1, '', '', '2022-05-08 16:55:39', '2022-05-10 07:29:43');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1672, 'WdZTpEr51VieY9uLlIbaPJqmq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' POCSO Act. Courts cannot impose lesser sentence than the one prescribed under the Act either before or after the amendment. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State of Karnataka Vs Shankar URF Shankrappa.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.A. 100242 of 2018 decided on 22 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.T. Narendra Prasad and Justice Rajendra Badamikar.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The State has filed this appeal under Section 377(1) (b) of Code of Criminal Procedure, 1973 challenging the inadequate sentence of imprisonment imposed against the accused</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. Addl. State Public Prosecutor contended that the imposition of lesser/inadequate sentence for the offence under Section 376(i) of IPC and Sections 4 and 5(L) of POCSO Act is contrary to law, facts and evidence on record. He would also contend that under Section 42 of the of POCSO Act, if the offender is found guilty of the offence under such other law, he is liable for punishment under the provisions of POCSO Act as well as under other law, then he shall be punished for the offence which is greater in degree. He would further contend that Section 42A of the POCSO Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and in case of any inconsistency, the provisions of POCSO Act will have overriding effect on the provisions of other law to the extent of inconsistency. He would contend that under Section 5(L) of POCSO Act which is punishable under Section 6 of POCSO Act for aggravated penetrative sexual assault the minimum sentence shall not be less than ten years along with fine and it may extend to life. He would contend that though the learned Special Judge has convicted the accused for the offence punishable under Section 5(L) of POCSO Act, he has not imposed minimum sentence prescribed under the statute but imposed only 7 years of imprisonment which is against the statutory mandate. Hence, he would contend that the impugned judgment in respect of imposition of sentence calls interference and modification and as such, he prayed for allowing the appeal in this regard.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. Having heard the arguments and perusing the oral as well as documentary evidence, now the following point would arise for our consideration: <i>“Whether the Trial Court is erred in not imposing adequate minimum sentence as prescribed under the statute?”</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. It is evident from the records that accused was convicted for the offence punishable under Sections, 363, 342, 343, 376(i) and 506 of IPC and Sections 4 and 5(L) of POCSO Act. Though the accused had challenged the judgment of conviction in Crl.A.No.100248/2018 initially, he withdrew the said appeal and the appeal came to be dismissed by order dated 04.12.2019 in view of the memo filed by the counsel for the appellant. Under such circumstances, now the question of considering merits of conviction cannot be gone into. Though learned counsel has tried to argue on the ground that there is dispute regarding the age of the victim so as to non-application of the provisions of POCSO Act, this defence is not available to the accused. Even otherwise, on perusing the evidence of the victim, it is evident that her age was not at all challenged in her entire cross-examination. As such, the said ground now cannot be urged.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. Hence, even prior to amendment, the minimum sentence prescribed for the offence under Section 5(L) is imprisonment which shall not be less than ten years with fine. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. Section 4 of POCSO Act deals with penetrative sexual assault and since Section 5 is more grave, offence under Section 4 merges with Sections 5 and 6. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. Section 376(2) (i) of IPC is pertaining to rape of a woman when she is under sixteen years of age. Even under Section 376(2)(i) of IPC, the minimum sentence imposed is 10 years.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. Further, Section 42A makes it clear that act is not in derogation of any other law and if there is any inconsistency with any other law for the time being in force, the provisions of POCSO Act shall have overriding effect. In the instant case, there is no inconsistency as the offence under Section 376(2)(i) as well as Section 6 of POCSO Act are punishable with minimum imprisonment of ten years. But the judgment discloses that though the Trial Court has considered Section 42 of POCSO Act, it has proceeded to impose sentence of 7 years with fine of Rs.30,000/- with default clause of RI for two years. This is against the statute and the State is harping on this point.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. The main contention of the learned counsel for respondent/accused is that accused has given remission by the State and now again the State cannot file appeal for enhancement of sentence and he was not made aware of filing of the appeal. But the records disclose that the notice of this appeal was served on accused through Jailor prior to filing of the memo. Apart from that, the remission was granted as per the statute and it is not a discretionary remission granted to the accused.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21. The remission was granted to the accused under Karnataka Prisons Rules and it is an ordinary remission in respect of good behavior incentive and other conditions incorporated in Rule 36. The remission was not granted by the State by passing any special law or treating it as special case but the remission was statutory remission under the provisions of Karnataka Prisons Rules, 1974.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25. Learned counsel has also invited the attention of the Court to Section 377 of Cr.P.C. and contended that when the State has filed an appeal for enhancement of sentence, the accused is at liberty to plead for his acquittal or for reduction of sentence. At the first instance, question of seeking reduction of sentence in this case does not arise at all as the Trial Court erred in not imposing minimum statutory sentence prescribed under the law. The second aspect regarding accused arguing for acquittal also does not arise, since the appeal filed by him was withdrawn and now after having withdrawn the appeal, he cannot argue for acquittal. Hence, the said ground is also not sustainable. Under these circumstances, the argument advanced by the learned counsel for respondent/accused in this regard cannot be entertained and admittedly, the Trial Court has failed to impose the minimum sentence prescribed under the law. Under such circumstances, the appeal filed by the State requires to be allowed and the sentence so far as it relates to the offence under Section 376(i) of IPC and under Section 5(L) read with Section 6 of POCSO Act needs to be altered by enhancing it from 7 years to 10 years as no other special reasons are forthcoming to enhance it to life imprisonment. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a6b4b6a27d136b651d563cb90464ec37.JPG', 'cf8fff24c211fac09ed7835c709f78d3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-11', 1, '', '', '2022-05-08 17:29:29', '2022-05-11 17:58:55'),
(1673, 'S0Fk4WpOAoFGLbiWSQFoZZb1i', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal proceeding against Notary Public in respect of their official work without prior permission of the Central Government or the State Government is impermissible and is liable to be quashed. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Praveen Kumar Adyapady and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 888 of 2018 decided on 11 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Natarajan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">This petition is filed by the petitioners-accused Nos.8 and 10 under Section 482 of Cr.P.C., for quashing criminal proceedings in Special Case No.4/2018 pending on the file of Additional District and Sessions Judge, Hassan for the offences punishable under Sections 366, 420, 465, 468, 472, </font></span><font face=\"Calibri, sans-serif\">376, 120A, 114, 120B read with Section 34 of IPC and Sections 4, 6, 17, 12 of the Pocso Act and Sections 9, 10 and 11 of the Child Marriage Restraint Act.</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The case of the prosecution is that on the complaint of one respondent No.2, the Hassan Women Police Station registered a case in Crime No.99/2017 for the offences punishable under Sections 366(A) of IPC and Section 12 of Protection of Children from Sexual Offences Act, 2012. Subsequently the police investigated the matter and filed charge sheet. The allegation against these petitioners is that accused No.1 in collusion with accused Nos.2 to 7 approached petitioner/accused No.8 who is advocate/notary declaring the date of birth of the victim as 25.9.1999 by correcting from 25.9.2000. Based upon the affidavit, the accused No.10 also made a declaration in the affidavit stating that the age of the victim was 18 years, even though she had not completed 18 years and shown her date of birth as 25.09.1999. The accused No.1 got married to the victim girl in Arya Samaj and after registering the case, it was found these petitioners being advocate/notary helped by giving declaration in the affidavit, therefore the charge sheet came to be filed, which is under challenge. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Learned senior counsel contended that the charge sheet filed against the accused after taking cognizance by the trial court is not sustainable. Hence petitioners being an Advocate and Notary where there is bar for taking cognizance under Section 13 of the Notaries Act, 1952, that apart the accused No.1 and others came and produced documents showing date of birth which was signed by the petitioners- advocate/notary by giving the declaration that if anything is corrected or manipulated by other accused they are not aware about the same. On perusal of the same, they have signed the same and discharged duty without their knowledge, therefore there is no offence committed by any of them in any of the provisions of law and also contended that the co-accused persons already got the criminal proceedings quashed, hence prayed for allowing the petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Upon hearing and perusal of records, which reveals accused No.1 got married the victim girl and the daughter of this complainant-respondent No.2, defacto-complainant by producing the affidavit before the Arya Samaj before accused Nos.7 and 9 and married the victim girl, stating that victim girl was major and had attained age of majority by manipulating the date of birth of the victim girl as 25.09.1999 even though her actual date of birth was 25.09.2000. Admittedly these two petitioners were advocate/notary and they have given declaration in affidavit filed by the parties. After looking to the documents produced by the parties, ofcourse while discharging the duty they have signed and given declarations in the document produced by the parties but it cannot be said, these petitioners had intentionally colluded with the other accused persons and signed agreement of declaration for helping the accused No.1 by manipulating the age of the victim. That apart as per Section 13 of the Notaries Act, there is a bar for taking cognizance by the Court for offences committed by the advocate and notary. Under the said Notaries Act they have to obtain the permission of the Central Government or State Government for filing the charge sheet and taking the cognizance. Admittedly, the petitioners are said to be Notary of Central Government. Such being the case, as per Section 13 of Notaries Act, sanction is necessary or permission is necessary before filing charge sheet and taking cognizance against this petitioner but no such permissions were obtained or produced by the Investigation Officer along with the charge sheet and also not mentioned anything about obtaining of the sanction in the charge sheet. Such being the case conducting criminal proceedings against these petitioners/accused Nos.8 and 10 requires to be quashed. Accordingly petition is allowed. Consequently, the criminal proceedings against the petitioners/accused Nos.8 and 10 in Special Case No.4/2018 pending on the file of Additional District and Sessions Judge, Hassan for the offences punishable under Sections 366, 420, 465, 468, 472, 376, 120A, 114, 120B read with Section 34 of IPC and Sections 4, 6, 17, 12 of the Pocso Act and Sections 9, 10 and 11 of the Child Marriage Restraint Act, is hereby quashed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b71bd9d830df56177983cb5ec80195da.jpg', '1ca753ddcbef076fe49b98eaff75f90d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-10', 1, '', '', '2022-05-08 18:37:07', '2022-05-10 13:33:17'),
(1806, 'vpMaUFm2sifDHg3uX8OT9QqGV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mere handing over documents deposited in escrow account to a party to the contract, without any personal gain and advantage, does not amount to criminal breach of trust. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Yogesh Jagia Vs Jindl Biochem Pvt Ltd.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Crl. M.C. 2349 of 2014 decided on 10 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Chandra Dhari Singh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Brief facts of the case leading to the filing of instant petition are as\r\nfollows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The Petitioner is a practicing Advocate enrolled with Bar Council of\r\nDelhi since 1991 and the Respondent/Complainant is a real estate\r\ndevelopment company.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. In 2005, four promoters of complainant company, namely, Rajinder\r\nKumar Jindal, Attar Singh, Kartar Singh and A.P. Singh, jointly promoted\r\n„V4 Infrastructure Pvt Ltd? (hereinafter “V4”). Prior to incorporation of\r\nV4, to avail opportunity to bid commercial plot of land at Karkardooma, all\r\nthe four referred promoters contributed funds in complainant company and\r\nacquired a commercial plot of land at Karkardooma Community Center,\r\nDelhi from DDA, which was subsequently developed by V4 in terms of\r\ndevelopment agreement dated 24th February, 2005.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. In 2008, certain disputes arose between the promoters and\r\nconsequently, two of the promoters exited the V4, selling their equity shares\r\nto the remaining promoters, that is, Rajinder Kumar Jindal and Attar Singh.\r\nThereafter, Rajinder Kumar Jindal also exited V4 and sold his shares to\r\nAttar Singh. Share purchase agreements were drawn up and as part of\r\nsettlement, part of commercial property located at Plot No. 228, Sector - 9,\r\nDwarka, developed by V4, was agreed to be sold to complainant company\r\nfor an agreed consideration for which two separate space buyer agreements\r\nwere executed between the complainant and V4, both dated 7\r\nth October, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2009. For execution of the agreements, the petitioner herein was appointed.\r\nFor the settlement of disputes, two conveyance deeds, one in favour of V4\r\nfor property at Karkardooma, as per development agreement dated 24th\r\nFebruary, 2005, and another for part of Dwarka property as per space buyer\r\nagreements dated 7\r\nth October, 2009 by V4 in favour of complainant\r\ncompany, were executed. Both the said entities on verbal request created an\r\nescrow account with the petitioner.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. V4 subsequently agreed to hand over possession letters for Dwarka\r\nproperty in escrow account but same were not deposited due to noncompliance by complainant Company of the agreed terms, though\r\ncomplainant alleged that same were handed over but illegally released by\r\nPetitioner herein to Accused no.2 and 3.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. In 2010, the complainant confirmed the creation of escrow account\r\nvide letter dated 23rd July, 2010 and the petitioner admitted the documents\r\nmentioned in the referred letter except the possession letters. The\r\ndocuments kept in the escrow account were reconfirmed by the complainant\r\nin its letter dated 21st May, 2011.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. It is the case of the complainant that the accused no. 1, petitioner\r\nherein, in collusion with accused no. 2 and 3 made alterations in the space\r\nbuyers agreement and the petitioner committed breach of trust and made\r\nimprovements to the determent of the complainant in the documents handed\r\nover.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n8. The complainant, subsequently, filed police complaint against the\r\npetitioner on 5\r\nth January, 2011 with Police Station Safdarjung Enclave and\r\nbefore the EOW, Delhi, alleging that despite of receiving entire agreed sale\r\nconsideration Accused no. 2 and 3, being directors of V4, failed to execute <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sale deed and the Petitioner in connivance released documents out of\r\nescrow account to accused no. 2 and 3, thereby committed criminal breach\r\nof trust under Section 409 of the Indian Penal Code, 1860 (hereinafter\r\n“IPC”)</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32. In proceedings initiated on the criminal complaint, exercise of the\r\ninherent powers to quash the proceedings is called for only in case where\r\nthe complaint does not disclose any offence or is frivolous. It is well settled\r\nthat the power under Section 482 Cr.P.C. should be sparingly invoked with\r\ncircumspection; it should be exercised to see that the process of law is not\r\nabused or misused</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">34. The gist of the offence under Section 409, criminal breach of trust by\r\npublic servant, or by banker, merchant or agent-whoever, being in any\r\nmanner entrusted with property, or with any dominion over property in his\r\ncapacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in\r\nrespect of that property, shall be punished with imprisonment for life, or\r\nwith imprisonment of either description for a term which may extend to ten\r\nyears, and shall also be liable to fine. The gist of the offence is\r\nmisappropriation done in a dishonest manner. There are two distinct parts </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the said offence. The first involves the fact of entrustment wherein an\r\nobligation arises in relation to the property over which dominion or control\r\nis acquired. The second part deals with misappropriation which should be\r\ncontrary to the terms of the obligation which is created.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>35. Summoning of an accused in a criminal case is a serious matter.\r\nCriminal law cannot be set into motion as a matter of course. The\r\ncomplainant has to bring on record material to support his allegations in the\r\ncomplaint to have criminal law set into motion. The order of the Magistrate\r\nsummoning the accused must reflect that he has applied his mind to the\r\nfacts of the case and the law applicable thereto. He has to examine the\r\nnature of allegations made in the complaint and the evidence both oral and\r\ndocumentary in support thereof and would that be sufficient for the\r\ncomplainant to succeed in bringing charge home to the accused. It is not\r\nthat the Magistrate is the silent spectator at the time of recording of\r\npreliminary evidences before summoning of the accused. The Magistrate\r\nhas to carefully scrutinize the evidence brought on record and may even\r\nhimself put questions to the complainant and his witnesses to elicit answers\r\nto find out the truthfulness of the allegations or otherwise and then examine\r\nif any offence is prima facie committed by all or any of the accused. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36. It is settled law that the Magistrate can discharge the accused at any\r\nstage of the trial if he considers the charge to be groundless, but that does\r\nnot mean that the accused cannot approach the High Court under Section\r\n482 of the Code or Article 227 of the Constitution to have the proceeding\r\nquashed against him when the complaint does not make out any case\r\nagainst him and still he must undergo the agony of a criminal trial.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>37. Keeping in view the facts and circumstances as well as allegations in\r\nthe complaint, in my view, the basic essential ingredients of criminal breach\r\nof trust are missing. Criminal proceedings are not shortcut for other\r\nremedies. The petitioner is a practicing advocate and he has given his\r\nprofessional services to the parties and there is no material on record to\r\nestablish prima facie that he has committed any offence as alleged in the\r\ncomplaint. Since no case of criminal breach of trust or dishonest intention\r\nof inducement is made out and the necessary ingredients of Section 409 of\r\nthe IPC are missing and the Magistrate concerned while passing the\r\nsummoning order dated 27th November, 2013 has certainly not considered\r\nthe facts of the case in a proper manner and also not assigned any reason for\r\nsummoning the petitioner, the summoning order dated 27th November, 2013\r\nand the complaint qua the petitioner is liable to be quashed.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>38. Accordingly, the instant petition under Section 482 of the Cr.P.C. is\r\nallowed, the impugned order dated 27th November, 2013 passed by\r\nMetropolitan Magistrate-01, South, Saket Courts, New Delhi is set aside\r\nand the complaint is also quashed qua the petitioner.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>39. Pending application, if any, also stands disposed of.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '42113549d7515ef67829d6ff6fee5a6c.png', '56b22279bf079d20cd09d8d6069df628.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-17', 1, '', '', '2022-06-13 17:50:56', '2022-06-17 12:32:15'),
(1677, 'CGE81WlYG41vuzDB5AY2gi913', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Convict under POCSO Act is entitled for parole as discretion has been vested in the Competent Authority to grant parole to such a convict under “special circumstances”.  Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rakesh Diwan Vs State of NCT of Delhi.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. (CRL) 480 of 2022 decided on 5 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Asha Menon.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This petition has been filed under Section 226 of the Constitution of\r\nIndia read with Section 482 Cr.P.C. for issuance of writ in the nature of\r\nmandamus directing the respondent to release the petitioner on parole for a\r\nperiod of eight weeks on the grounds of filing Special Leave Petition (for\r\nshort, „SLP?).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. Mr. Faraz Maqbool, learned counsel for petitioner, submitted that\r\nthe petitioner has been convicted for the offence under Section 6 of\r\nthe Protection of Children from Sexual Offences Act, 2012 (for short,\r\n“POCSO Act”) vide judgment dated 19th December, 2019 and has been\r\nsentenced to undergo rigorous imprisonment for a period of 14 years vide\r\norder on the sentence dated 18th January, 2020 in case FIR No.513/2013, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">registered at P.S. Okhla, Delhi. This conviction was challenged before this\r\ncourt vide CRL.A. No.454/2020. However, the same was dismissed vide\r\njudgment dated 10th August, 2021 and this Court upheld both, the\r\nconviction as well as the sentence.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. Learned counsel for petitioner submitted that the petitioner is\r\npresently confined in Central Jail No. 5, Tihar and has already undergone\r\nincarceration of about 8 years out of rigorous imprisonment for 14 years\r\nand fine. He desires to file an SLP for which he sought parole. He also\r\nsought parole on the ground of maintaining social-ties with the family.\r\nHowever, this application for parole filed before the Home Department,\r\nGovt. of NCT of Delhi on 19th August, 2021 was dismissed by the\r\nrespondent on 18th January, 2022, observing that there were no special\r\ncircumstances that existed for grant of parole as the convict could file the\r\nSLP from the jail itself where free legal aid was available to all prisoners.\r\nThis order of dismissal has been placed on the record as Annexure A.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The Nominal Roll has been also received from the jail, which\r\nrecords that the petitioner has been allotted work as „Lungar Sahayak? and\r\nhas not been found violating any prison rule and his conduct for the last\r\none year has been satisfactory. It is also to be noted that the Nominal Roll\r\ndiscloses that the petitioner has never been released on bail, parole or\r\nfurlough.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. As regards the observation that filing of SLP constitutes no “special\r\ncircumstance” as there is free legal aid available, suffice it to note that the\r\ncourts have not agreed with this stance of the Government. Under Article\r\n22(1) of the Constitution as well as Section 303 Cr.P.C., an accused person\r\nhas been guaranteed with a Constitutional right to engage a\r\ncounsel/pleader of his own choice. It is no doubt true that the Legal\r\nServices Authorities at all levels endeavour to provide excellent legal\r\nassistance to those in prison. But, to deny the convict an opportunity to\r\nengage with other counsel to enable him to make up his mind freely, as to\r\nwhom he would wish to engage, would violate his constitutional rights to\r\nlegal representation. In fact, it is because of the recognition of this right\r\nthat the State Prison Rules, 2018 dealing with parole and furlough,\r\nrecognizes that regular parole under Rule 1208 can be granted to a convict,\r\nto pursue filing of a Special Leave Petition before the Supreme Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. While this ground in the impugned order does not hold water, the\r\nmore serious objection is encapsulated in ground (1), namely, that the\r\nRules itself do not permit a prisoner convicted under POCSO Act for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">parole.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. But this bar is not absolute, for, the competent authority has been\r\nvested with “discretion” even in such cases, to grant parole, provided there\r\nwere special circumstances. It is clear that the impugned order does not\r\nrefer to the “special circumstances” that were required to be considered\r\nand were found insufficient to grant parole. Rather, it is clear that the\r\n“special circumstances” or rather their absence, have been referred to only\r\nin respect of the filing of an SLP, but not for the entitlement of the\r\napplicant for parole under Rule 1211(VII) of the State Prison Rules.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. To reiterate, a convict under the POCSO Act is not barred from\r\nseeking parole, as discretion has been vested in the Competent Authority to\r\ngrant parole to such a convict under “special circumstances”. What those\r\n“special circumstances” would be have not been spelt out. Nevertheless, it\r\nis clear that the facts of each case would reveal the “special circumstances”\r\nfor grant of parole. The Competent Authority should keep in mind the\r\npurpose of parole as listed out in Rule 1200 of the Prison Rules</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. In the present case, the petitioner is one who has remained interned\r\nin prison for 8 years and more. He has never availed of bail, furlough or\r\nparole so far as revealed by the Nominal Roll. This continuous\r\nincarceration would be a significant factor for grant of parole. The long\r\nincarceration would have disrupted his family life and would have\r\ndefinitely impacted him physically and psychologically. In fact, all the\r\nobjectives listed in Rule 1200 are applicable to him.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. Moreover, he has, in all these times, maintained good conduct and\r\ndiscipline in the prison. There is no reasonable apprehension that the\r\npetitioner, if released on parole, may not return back to jail to undergo the\r\nremaining portion of the sentence awarded to him, or that he may escape\r\nthe law, or that he may once again indulge in the same activity. Since the\r\nappeal has been already disposed of, there is no possibility of his\r\nintimidating or harming those who have deposed against him. In fact, the\r\nStatus Report does not reveal any such possibility.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. In the circumstances, the petition is allowed. The concerned Jail\r\nSuperintendent is directed to release the petitioner on parole for a period of\r\neight weeks on his furnishing a personal bond and surety in the sum of\r\nRs.10,000/- each, to the satisfaction of Jail Superintendent and subject to\r\nfurther following conditions:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) The petitioner shall not leave NCR Region without\r\ninforming the local SHO;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">(ii) The petitioner shall furnish his mobile phone/landline </span><span style=\"font-size: 12pt;\">to the Jail Superintendent/SHO and both shall keep their\r\nmobile/landline phones operational at all times during the\r\nparole period and in the event of any change of the same,\r\nwill immediately inform the same to the Jail\r\nSuperintendent/SHO; and,\r\n(iii) The petitioner shall drop a pin location on Google Maps so\r\nthat his location is available to the Jail\r\nSuperintendent/SHO.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>17. The petition is accordingly disposed of. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd880332cf2c8b6ecd3a0aa9b149b2765.jpeg', '9addb59f51a473f6c52346d000f7f62b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-12', 1, '', '', '2022-05-09 18:29:20', '2022-05-12 16:21:59');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1678, 'bhsWrPRyYV9oCFkT0RI6nzBkw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Appellate Court cannot decide criminal appeal before it by taking into account evidence recorded in another case even though it might be a cross-case or a counter case. Karnataka High Court issues exhaustive guidelines. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Eshwara and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 100101 of 2016 decided on 17 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj and Justice J.M. Khazi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The accused are before this Court aggrieved by the judgment of conviction and order of sentences passed by Addl. District and Sessions Judge, Ballari, sitting at Hospete, dated 28.03.2016 in S.C.No.70/2011. By way of the said judgment, accused No.1-Eshwar, accused No.3-Lakappa, accused No.4-Sangana Basappa, accused No.5- Nagaraj, accused No.8-Veerappa, accused No.9- Manjappa, accused No.10-Basavaraj, accused No.11-  </font></b></span><b style=\"font-family: Calibri, sans-serif; font-size: 12pt;\">Nagarajappa and accused No.12 Shivappa were convicted for offences pu punishable under section 148 and 307 read with section 149 of IPC and they were acquitted or offences punishable under section 143, 147, 323, 324, 326, 504,506 read with section 140 of IPC. They sentence to undergo simple imprisonment for five years for the offence punishable under section 307 IPC and to pay fine of Rs. 5000 each to undergo simple imprisonment for six months. Further, they are to undergo simple imprisonment for one year for the offence is punishable under 148 of the IPC and to pay a fine Rs. 500 each. In each default thereof to undergo simple imprisonment for 10 days the sentences to run concurrently.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>33. In the year 1954, the Madras High Court while dealing  with the  case  in  THOTA RAMAKRISHNAYYA AND OTHERS VS. THE STATE reported in AIR 1954 MADRAS 442 has opined on how a complaint and counter complaint have to be dealt with.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>41. Though all the aforesaid decisions are relating to the procedure to be followed by the trial Court, the decision of the Hon’ble Apex Court MITTULAL AND ANOTHER VS. THE STATE OF M.P. reported in AIR 1975 SC 149 would be of some assistance to us wherein the Hon’ble Apex Court has held that the High Court could not decide an appeal before it by taking into account evidence recorded in another case even though it might be a cross-case or a counter case.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>42. Thus, from the above, it is clear that even when appeals are  filed, before the  High Court, one challenging the conviction in the case, the other challenging the conviction in a counter case or one challenging the acquittal in the case and conviction in the counter case or vice versa, the High Court could not look into the evidence of the counter case while deciding the case and cannot look into the evidence in the case while deciding the counter case. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>43. The above would also imply that there are two separate judgments which are required to be passed and both the appeals cannot be clubbed together and a single judgment cannot be passed after hearing the counsels. Thus, the procedure which should be required to be followed by the High Court being more or less as that to be followed by the trial Court can be summed up as under. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>44. Whenever two appeals are before the High Court arising out of a case and counter case</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> a. It would also be required that in each of the appeals a different prosecutor appears on behalf of the State,</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>b. After arguments are heard in one appeal the judgment is required to be reserved,</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>c. After argument is heard in the second appeal the judgment is to be reserved,</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>d. Two separate judgments are required to he passed in each of the appeals,</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>e. While passing judgments in each of the appeals, the High Court cannot leok into the evidence led or be infiuenced by the arguments advanced in the other appeal.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>f. Suffice it to say that each appeal has to be decided on the basis of the evidence and the law applicable to that particular appeal.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>45. The above aspects being laid to rest, we would be required to pass two separate judgments in both the appeals. Both the appeals were heard one after the other and judgment reserved.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">60.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">In terms of the decision of the Full Bench State Of Karnataka By Circle Inspector Of Police Vs. Hosakeri Ningappa And Another(supra) of  this Court as also the Hon’ble Apex Court which has been detailed hereinabove, this court while deciding an appeal arising out of a complaint or a counter- complaint cannot look into the evidence in the other matter.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>85. The trial Court ought to have appreciated the fact that there is no evidence on record which could prove beyond reasonable doubt about the involvement of the accused in the said offence. The contradictions as also discrepancies which have been pointed out above would lead only to one conclusion, that the prosecution has not been able to drive home the guilt of accused, maybe on account of the investigation not being proper and/or prosecution was not conducted properly. Be it for whatever reasons, the discrepancies and contradiction detailed above can only lead to one conclusion that the prosecution is unable to prove the guilt of the accused.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Order: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. The appeal is allowed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>V) in view of the callous manner in which the investigation has occurred, we issue the followina directions.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>a. Where complaints and counter complaints are filed, both are to be investigated by the same Investigating Officer.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">b. In all matters, where there are complaints, which have been filed though they may be filed as stand alone </font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">complaints and not complaint and counter-complaint, the police officers and/or the investigating officers ought to apply their mind to see if the crime alleged against by either of the parties is more or less at the same time as also to appreciate if the accused in one matter is the complainant in the other matter and vice versa, in such cases, a single investigating officer has to investigate both the matters and the same should not be investigated by two different investigating officers.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">c)</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem; white-space: pre;\">	</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">If there was one investigating officer for both offences and one of the offences gets to be serious or heinous requiring the investigation to be conducted by a senior officer, in that event the senior officer will have to investigate both the </span><font face=\"Calibri, sans-serif\">offences, assisted by the earlier Investigating Officer.</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">d)<span style=\"white-space: pre;\">	</span>During the course of investigation, the investigating officer is required to ascertain the truth of the matter and not take sides with either of the parties. The investigating officer has to ascertain the veracity of the complaints, which has been filed by both the parties, conduct a comprehensive investigation in both complaints as regards the guilt of the concerned.  It is not necessary that both of them have to be guilty. There could be a possibility of one set of complainants being guilty and other being innocent. In such case, the charge sheet would have to be filed only against the guilty person/s and not against the person/s who are not guilty. </font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">If however, the investigating officer were to come to a conclusion that both the parties are guilty, then charge sheet could be filed against both the parties.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">e)</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem; white-space: pre;\">	</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">The Director General of Police, State of Karnataka is directed to issue necessary directions/guidelines/Standard operating Procedure in terms of the above.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"> f)</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem; white-space: pre;\">	</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">The Additional Registrar General is directed to send a copy of this judgement to the Director General of Police to give effect to observation made in this judgment as also in Abdul Nazeeb Sab’s case. The Director General of Police to formulate and issue necessary </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">guidelines/Standard Operating Procedure for the Investigating Officers to be followed </span><font face=\"Calibri, sans-serif\">while investigating a complaint and counter-complaint. Such guidelines to be circulated to all the investigating?</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>g) Officers and whenever training is held, to also cover this aspect in such training. A copy of the quidelines framed by the Director General of Police, State of Karnataka to be placed on record within a period of 12 weeks from today.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>vi) Whenever a complaint and counter complaint or appear to be a complaint and counter complaint come up for trial, the trial court to conduct the same as per the directions of the Full Bench in STATE OF KARNATAKA BY CIRCLE INSPECTOR OF POLICE VS. HOSAKERI NINGAPPA AND ANOTHER reported in ILR 2012 KAR 509 as under:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>a)<span style=\"white-space:pre\">	</span>The procedure to be adopted in case and counter case is that the investigation should be conducted by the same Investigating Officer and the prosecution should be conducted by two different Public Prosecutors.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>b)<span style=\"white-space:pre\">	</span>The trial should be conducted by the same Court. After recording the evidence and after hearing the arguments, the judgment should be reserved in one case and thereafter the evidence should be recorded and the arguments should be heard and Judgment reserved in the other case.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>c)<span style=\"white-space:pre\">	</span>The arguments in both the matters shall be heard by the same Learned Judge. The judgments should be pronounced by the same Judge simultaneously i.e., one after the other<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>d)<span style=\"white-space:pre\">	</span>In deciding each case, the Trial Judge can only rely on the evidence recorded in that particular case and the evidence recorded in the cross case (or counter case) cannot be looked into. The Judge shall not be influenced by the evidence or arguments in the cross case. However, if the evidence recorded in one case is brought on record in another case in accordance with the procedure known to law, then, such evidence which is legally brought on record can be looked into. Except in such situation, the evidence recorded in one case cannot be looked into in another case.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>vii)<span style=\"white-space:pre\">	</span>Whenever two appeals are filed arising out of a complaint and counter complaint or appear to be a complaint and counter-complaint, the Appellate Court is to follow the following procedure:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>a)<span style=\"white-space:pre\">	</span>In each of the appeals a different prosecutor to appear and argue on behalf of the State,</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>b)<span style=\"white-space:pre\">	</span>Each appeal would be required to be independently heard.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>c)<span style=\"white-space:pre\">	</span>After arguments are heard in one appeal the judgment is required to be reserved,</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>d)<span style=\"white-space:pre\">	</span>After argument is heard in the second appeal the judgment is to be reserved, e)<span style=\"white-space:pre\">	</span>Two separate judgments are required to be passed in each of the appeals,</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>f)<span style=\"white-space:pre\">	</span>While passing judgments in each of the appeals, the Appellate Court cannot look into the evidence led or be influenced by the arguments advanced in the other appeal.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>g)<span style=\"white-space:pre\">	</span>However, if the evidence recorded in one case is brought on record in another case in accordance with the procedure known to law, then, such evidence which is legally brought on record can be looked into. Except in such situation, the evidence recorded in one case cannot be looked into in another case.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>h)<span style=\"white-space:pre\">	</span>Suffice it to say that each appeal has to be decided on the basis of the evidence and the law applicable to that particular appeal.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space:pre\">	</span>If the Appeal is heard by a Division Bench the same judge to pass judgements in both the Appeals.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>j)<span style=\"white-space:pre\">	</span>The   Additional Registrar General, is directed to send a copy of this judgment to the Director of Public Prosecutions to enable the said director to formulate the necessary guidelines/Standard Operating Procedure for the Public Prosecutors to be followed while prosecuting a complaint and counter- complaint. Such guidelines to be circulated to all the prosecutors and whenever training is held, to also cover this aspect in such training.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>k)<span style=\"white-space: pre;\">	</span>A Copy of the guidelines framed by the Director of Prosecutions, State of Karnataka to be placed on record within a period of 12 weeks from today.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '44c788fb0006d17c7f8711ea5f792683.JPG', 'a6354449b74c113197e8e96d9722dd9a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-11', 1, '', '', '2022-05-11 18:31:59', '2022-05-11 18:53:23'),
(1681, 'jZMGVa1wq6rDP3Q1vIcwNvmOJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque bounce cases. A person cannot be convicted merely because he is a partner of the firm which had taken the loan or that he stood as a guarantor for such loan.  Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Dilip Hariramani Vs Bank of Baroda<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 767 of 2022 decided on 9 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ajay Rastogi and Justice Sanjiv Khanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">.... </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. Before we refer to the pertinent legal ratio in the case of Aneeta\r\nHada v. Godfather Travels and Tours Private Ltd.,</span></b><span style=\"font-weight: bolder; font-size: 1rem;\">(2004) 7 SCC 15</span><b style=\"font-size: 12pt;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> we would </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">like to refer to an earlier apposite judgment of this Court in State\r\nof Karnataka v. Pratap Chand and Others, </span></b><span style=\"font-weight: bolder; font-size: 1rem;\">(2012) 5 SCC 661</span><b style=\"font-size: 12pt;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> in which case\r\nprosecution had been initiated under the Drugs and Cosmetics\r\nAct, 1940 against a partnership firm and its partners. Reference\r\nwas made to Section 348\r\n of the Drugs and Cosmetics Act, which is\r\npari materia to Section 141 of the NI Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Sub-section (1) to Section 141 of the NI Act states that where a\r\ncompany commits an offence, every person who at the time the\r\noffence was committed was in charge of and was responsible to\r\nthe company for the conduct of the business, as well as the\r\ncompany itself, shall be deemed to be guilty of the offence. The\r\nexpression ‘every person’ is wide and comprehensive enough to\r\ninclude a director, partner or other officers or persons. At the same\r\ntime, it follows that a person who does not bear out the\r\nrequirements of ‘in charge of and responsible to the company for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the conduct of its business’ is not vicariously liable under Section\r\n141 of the NI Act. The burden is on the prosecution to show that\r\nthe person prosecuted was in charge of and responsible to the\r\ncompany for conduct of its business. The proviso, which is in the\r\nnature of an exception, states that a person liable under subsection (1) shall not be punished if he proves that the offence was\r\ncommitted without his knowledge or that he had exercised all due\r\ndiligence to prevent the commission of such offence. The onus to\r\nsatisfy the requirements and take benefit of the proviso is on the\r\naccused. Still, it does not displace or extricate the initial onus and\r\nburden on the prosecution to first establish the requirements of\r\nsub-section (1) to Section 141 of the NI Act. The proviso gives\r\nimmunity to a person who is otherwise vicariously liable under\r\nsub-section (1) to Section 141 of the NI Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. Sub-section (2) to Section 141 of the NI Act states that\r\nnotwithstanding anything contained in sub-section (1), where a\r\ncompany has committed any offence under the Act, and it is\r\nproved that such an offence has been committed with the consent\r\nor connivance of, or is attributable to any neglect on the part of\r\nany director, manager, secretary or other officers of the company,\r\nthen such director, manager, secretary or other officers of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">company shall also be deemed to be guilty of that offence and\r\nshall be liable to be proceeded against and punished accordingly.\r\nSub-section (2) to Section 141 of the NI Act does not state that the\r\npersons enumerated, which can include an officer of the company,\r\ncan be prosecuted and punished merely because of their status or\r\nposition as a director, manager, secretary or any other officer,\r\nunless the offence in question was committed with their consent or\r\nconnivance or is attributable to any neglect on their part. The onus\r\nunder sub-section (2) to Section 141 of the NI Act is on the\r\nprosecution and not on the person being prosecuted.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. In the present case, we have reproduced the contents of the\r\ncomplaint and the deposition of PW-1. It is an admitted case of the\r\nrespondent Bank that the appellant had not issued any of the\r\nthree cheques, which had been dishonoured, in his personal <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">capacity or otherwise as a partner. In the absence of any evidence\r\nled by the prosecution to show and establish that the appellant\r\nwas in charge of and responsible for the conduct of the affairs of\r\nthe firm, an expression interpreted by this Court in Girdhari Lal\r\nGupta v. D.H. Mehta and Another11 to mean ‘a person in overall\r\ncontrol of the day-to-day business of the company or the firm’, the\r\nconviction of the appellant has to be set aside. The appellant\r\ncannot be convicted merely because he was a partner of the firm\r\nwhich had taken the loan or that he stood as a guarantor for such\r\na loan. The Partnership Act, 1932 creates civil liability. Further, the\r\nguarantor\'s liability under the Indian Contract Act, 1872 is a civil\r\nliability. The appellant may have civil liability and may also be\r\nliable under the Recovery of Debts Due to Banks and Financial\r\nInstitutions Act, 1993 and the Securitisation and Reconstruction of\r\nFinancial Assets and Enforcement of Security Interest Act, 2002.\r\nHowever, vicarious liability in the criminal law in terms of Section\r\n141 of the NI Act cannot be fastened because of the civil liability.\r\nVicarious liability under sub-section (1) to Section 141 of the NI\r\nAct can be pinned when the person is in overall control of the dayto-day business of the company or firm. Vicarious liability under\r\nsub-section (2) to Section 141 of the NI Act can arise because of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the director, manager, secretary, or other officer\'s personal\r\nconduct, functional or transactional role, notwithstanding that the\r\nperson was not in overall control of the day-to-day business of the\r\ncompany when the offence was committed. Vicarious liability\r\nunder sub-section (2) is attracted when the offence is committed\r\nwith the consent, connivance, or is attributable to the neglect on\r\nthe part of a director, manager, secretary, or other officer of the\r\ncompany. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11 (1971) 3 SCC 189</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12 State of Karnataka v. Pratap Chand and Others, (1981) 2 SCC 335. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. The demand notice issued on 04th November 2015 by the Bank,\r\nthrough its Branch Manager, was served solely to Simaiya\r\nHariramani, the authorised signatory of the Firm. The complaint\r\ndated 07th December 2015 under Section 138 of the NI Act before\r\nthe Court of Judicial Magistrate, Balodabazar, Chhattisgarh, was\r\nmade against Simaiya Hariramani and the appellant. Thus, in the\r\npresent case, the Firm has not been made an accused or even\r\nsummoned to be tried for the offence.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. The provisions of Section 141 impose vicarious liability by\r\ndeeming fiction which presupposes and requires the commission\r\nof the offence by the company or firm. Therefore, unless the\r\ncompany or firm has committed the offence as a principal\r\naccused, the persons mentioned in sub-section (1) or (2) would\r\nnot be liable and convicted as vicariously liable. Section 141 of the\r\nNI Act extends vicarious criminal liability to officers associated with\r\nthe company or firm when one of the twin requirements of Section\r\n141 has been satisfied, which person(s) then, by deeming fiction,</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>is made vicariously liable and punished. However, such vicarious\r\nliability arises only when the company or firm commits the offence\r\nas the primary offender. This view has been subsequently\r\nfollowed in Sharad Kumar Sanghi v. Sangita Rane, Himanshu\r\nv. B. Shivamurthy and Another, and Hindustan Unilever\r\nLimited v. State of Madhya Pradesh. The exception carved out\r\nin Aneeta Hada (supra),which applies when there is a legal bar\r\nfor prosecuting a company or a firm, is not felicitous for the\r\npresent case. No such plea or assertion is made by the\r\nrespondent.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. Given the discussion above, we allow the present appeal and set\r\naside the appellant\'s conviction under Section 138 read with <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 141 of the NI Act. The impugned judgment of the High\r\nCourt confirming the conviction and order of sentence passed by\r\nthe Sessions Court, and the order of conviction passed by the\r\nJudicial Magistrate First Class are set aside. Bail bonds, if any,\r\nexecuted by the appellant shall be cancelled. The appellant is\r\nacquitted.However, there would be no order as to costs.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '74ac1f2861765b21d279ca5f38dfca1c.jpg', '0df1f61825aff048ab890d9bdf6a5404.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-12', 1, '', '', '2022-05-13 02:32:21', '2022-05-13 14:26:31'),
(1682, 'VxkcLH72TfBwQh6RHxZX6VzBf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land acquisition. Supreme Court approves High Court Judgement which invalidated invocation of urgency clause under 1894 Act and the direction to pay compensation under 2013 Act. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Noida Industrial Development Authority Vs Ravindra Kumar and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3762 of 2022 decided on 9 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ajay Rastogi and Justice Abhay S. Oka.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The State Government issued a notification dated 7th November 2007 under Section 4 of the Land Acquisition Act, 1894 (for short, ‘the 1894 Act’).  By the said notification, the State Government notified its intention to acquire 108.233 hectares of lands in Village Begumpur, Pargana Dankaur, Tehsil Sadar, District Gautam Budh Nagar. The purpose of the acquisition was the planned industrial development through New Okhla Industrial  Development Authority (NOIDA). The State Government invoked the urgency clause under sub­section (1) of Section 17 of the 1894 Act and also passed an order under subsection (4) of Section 17 for dispensing with an enquiry under Section 5A of the 1894 Act.  On 17th March 2008, a declaration under Section 6 of the 1894 Act was issued by the State Government.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. The first question which arises for our consideration is whether the High Court committed an error by not setting aside the acquisition after recording a finding that the orders by which sub­section (1) and sub­section (4) of Section 17 of the 1894 Act were invoked were illegal.  We may note here that after invoking the urgency clause and dispensing with an enquiry under Section 5A of the 1894 Act, Section 6 declaration was issued on 17th March 2008.  All the writ petitions filed by the owners were belatedly filed after more than 3 to 4 years from the date of declaration under Section 6.  It is true that the High Court was right in holding that the urgency clause could not have been invoked in the facts of the case.  However, a finding of fact has been recorded by the High Court that after the possession of the acquired land was handed over to the acquiring body, the same has been developed and allotted to third parties.  A very large area of 108.233 hectares owned by the various individuals was acquired. However, only  persons claiming to be the land owners belatedly filed writ petitions. Taking note of these facts, the High Court, for balancing the private interests of the land owners with the public interest, declined to quash the acquisition proceedings.The High Court passed an order directing that the compensation payable shall be in terms of the provisions of the 2013 Act on the date of its judgment. Writ jurisdiction under Article 226 of the Constitution of India is always discretionary.  It is an equitable remedy. It is not necessary for the High Court to correct each and every illegality.  If the correction of illegality is likely to have unjust results, High Court would normally refuse to 11 exercise its jurisdiction under Article 226. While maintaining the acquisition proceedings, the High Court granted a substantial relief to the land owners by directing payment of compensation under the 2013 Act which is higher than the  compensation payable under the 1894 Act. This approach cannot be faulted.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. The second question which arises is whether the High Court ought to have granted relief of higher market value and allotment of developed land in accordance with the decision of this Court in the case of Savitri Devi .In paragraph 50 of the said decision, this Court observed thus:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“50. Keeping in view all these peculiar circumstances, we are of the opinion that these are not the cases where this Court should interfere under Article 136 of the Constitution. However, we make it clear that directions of the High Court are given in the aforesaid unique and peculiar/specific background and, therefore, it would not form precedent for future cases.”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>It appears from the facts of the said case that in the three villages subject matter of the appeals, no development had taken place on the acquired lands.  In the cases in hand, we are dealing with a completely different fact scenario and therefore, reliance on the said decision will not help the land owners.  The decision in the case of Savitri Devi was limited to the peculiar fact situation of the case.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13. In the case of  Sahara India Commercial Corporation Limited and Others v. State of Uttar Pradesh and Others , this Court found that invocation of urgency clause under Section 17 was invalid and illegal. This Court moulded the relief and directed payment of compensation in terms of the 2013 Act by treating the relevant date as the date of its judgment.  Therefore, we find no error in the approach of the High Court when it directed payment of market value computed as per the 2013 Act to those land owners who have not accepted the compensation under Karar Niyamawali by taking the date of the judgment as a deemed date after following the 2013 Act.  The High Court has done the balancing act by saving the acquisition proceedings while granting the aforesaid monetary relief to the land owners. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14. The third question is whether the relief of the grant of market value in terms of the 2013 Act could have been denied to the land owners who had  accepted the compensation by agreement in terms of the Karar Niyamawali. The High Court has given reasons for adopting the said approach.  The main reason is that without any grievance, the land owners voluntarily accepted the compensation by an agreement in terms of the Karar Niyamawali.  After lapse of considerable time thereafter, the land owners chose to file writ petitions in the High Court. After having acquiesced to the action of the  Government by accepting the compensation under an agreement, the land owners were not justified in making a grievance at a belated stage. Therefore, we find no error with the view taken by the High Court in relation to those land owners who had accepted compensation under Karar Niyamawali</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16. We, therefore, find no error in the impugned judgment. Accordingly, the appeals are dismissed. The contempt petition is disposed of.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5de4904141dac04eeab6cb6aaa267c82.jpeg', '79222de82673c52a7c3fe5bc42263b97.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-15', 1, '', '', '2022-05-14 02:35:36', '2022-05-15 17:45:23'),
(2824, '4c4KAQqrOjw4j4zBRyc1xP2EX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Compliance to either of the two conditions i.e. taking over of possession of the land or payment of compensation is good enough to sustain the acquisition under the 2013 Act. Supreme Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Delhi Development Authority Vs Batti and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1918 of 2023 decided on 22 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Abhay S. Oka and Justice Rajesh Bindal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. The facts of the cases are available on record. Vide notification dated 23.06.1989 issued under Section 4 of the Land Acquisition Act, 1894 (For short, ‘the Act’) large chunk of the land measuring about 3,500 Hectares was sought to be acquired for planned development of part of Delhi. It was followed by notification issued on June 20, 1990 under Section 6 of the Act. The Award bearing No. 13/92­93 was announced by the Land Acquisition Collector (DS), Delhi on 19.06.1992</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. It is evident from the facts noticed by the High Court in the impugned order that husband of the respondent late Mange Ram was son of late Harkesh. He was father­in­law of the respondent no.1­ writ petitioner. He was claimed to be the recorded owner of 1/12th share [01 bigha and 19 biswas and 03 biswansi] in land bearing Khasra Nos. 281/4(10­11), 282/4 (10­3) and 80(2­8) total area measuring 23 bighas and 2 biswas, situated in the revenue estate of Village Ghari Mandu, Shahdara, Delhi.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. There is nothing on record to suggest the acquisition in question was ever challenged by the predecessor­in­interest of respondent no.1. The writ petition came to be filed in the year 2015 referring to Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short “the 2013 Act”) claiming that the possession of land having not been taken and the compensation not paid, the acquisition has lapsed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. There is no dispute on the fact that the judgment of this Court in Pune Municipal Corporation and Another’s case (supra), was relied upon by the High Court to hold that the acquisition in question had lapsed. It was overruled by the Constitution Bench judgment of this Court in the Indore Development Authority’s case (supra).</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13. A perusal of the impugned order passed by the High Court shows that the Writ Petition was allowed relying upon the judgement of this Court in Pune Municipal Corporation and Another’s case (supra). The case set by the writ petitioner was that late Harkesh was the recorded owner of the land as noticed in para 2 of the judgment. The writ petitioner is his daughter­in­law. Even the husband of the writ petitioner had expired when the writ petition was filed. It was claimed that late Harkesh was having bhoomidari rights, however in terms of the stand taken by the appellant, no surviving membership was placed on record. Definite and undisputed stand taken by the respondent before the High Court was that the possession of the land was taken after the award was announced and the same was handed over to the Forest Department for development as green belt, agriculture and water body as the land falls in ‘O’ Zone. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14. Initially, the stand sought to be taken by the writ petitioner before the High Court was that the physical possession of the land had not been taken, however, the same was given up. The only argument pressed was that the compensation be paid as per the provisions of the 2013 Act. The Writ Petition was allowed relying upon the judgment of this Court in Pune Municipal Corporation and Another’s case (supra). The High Court had also noticed the fact that there was dispute about title of the property which as per the stand taken by both the parties was kept open. Meaning thereby, even the compensation could not have been paid to the predecessor interest of the respondent/ writ petitioner. There is nothing on record to suggest as to what action was taken by the person who claimed interest in the property to seek compensation, in case land owned by him was acquired more than two decades back and no compensation paid. The litigation started only with enactment of Act of 2013 </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15. For the reasons recorded above, the present appeal deserves to be allowed as the ingredients of Section 24(2) of 2013 Act as interpreted by this Court in Indore Development Authority vs. Manoharlal and Others’s case (supra) are not satisfied in the case in hand. There cannot be lapsing of acquisition of land. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16. The appeals are, accordingly, allowed and the impugned order passed by the High Court is set aside. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '195ac69f478c0387b15c68b08931b1ec.jpeg', '5d6d78423b63a0b41419f0c0b04bd52c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-24', 1, '', '', '2023-03-23 12:47:41', '2023-03-24 06:50:55');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2825, 'P3lH5I0c7tucdHOV62gvjJWib', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Central Excise Act. Mere affixation of the MRP on a good does not qualify it to claim benefits under Section 4(A) of the Act. There must be a “requirement” for the affixation of such MRP. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Commissioner of Central Excise and Service Tax, Kanpur Vs M/S. A.R. Polymers Pvt Ltd. Etc.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 9569-70 of 2019 decided on 21 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna Murari and Justice Sudhanshu Dhulia.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Briefly, the facts relevant for the purpose of these Appeals are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\nI. The Respondent No.1, M/s AR Polymers Pvt. Ltd. is a manufacturer\r\nengaged in the manufacture of footwear and the sale of the same to\r\ndefense/paramilitary forces in bulk for their use. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>II. An intelligence was received by the DGCEI that the respondent was\r\navailing benefits under notification No. 12/2012-CE dated 17/03/12 and\r\nSection 4(A) of the Central Excise Act, 1944, which is limited to\r\nfootwear sold in retail. The said notification wholly exempts the payment\r\nof Central Excise Duty for retail sale of footwear under Rs. 500/- and\r\nlimits Central Excise Duty to 6% where the rate of the footwear is\r\nbetween Rs. 501/- to Rs. 1000/-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>III. Acting on the abovementioned intelligence, a team of DGCEI officers\r\nvisited the factory premises of the Respondent, where it was found that\r\nthe respondent was manufacturing the footwear as per a contract entered\r\ninto between the parties, and a rate for the sale and purchase of the\r\nfootwear was fixed under the contract. It was also found that the\r\nrespondent was printing and attaching MRP stickers on the insole of the\r\nsaid shoes, only to avail the benefits of the abovementioned notification\r\nand Section 4(A) of the Act.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The Respondent, due to the tax assessment being less under Section\r\n4(A) of the Act, is seeking benefit under the same, however, due to the\r\nassessment under Section (4) of the Act being more, the Appellant is\r\nclaiming for the assessment to be done thereunder. This appeal, therefore,\r\nfundamentally depends on the interpretation of Section 4(A) of the Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The primary question posed in front of us today is only one,\r\nwhether the goods sold by the respondent are eligible to claim tax\r\nbenefits within the purview of the abovementioned notification under\r\nSection 4(A) of the Central Excise Act?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. In the case of Jayanti Food Processing Pvt. Ltd. v. Commissioner\r\nof Central Excise, Rajasthan1\r\n, this Court, while deciding on a similar\r\nissue, held that for goods to be included under the assessment of Section\r\n4(A) of the Central excise Act, it must comply with five factors. The\r\nrelevant paragraph of the judgment is being reproduced herein:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“….Even at the cost of repetition the following would be the fActors\r\nto include the goods in Sections 4-A(1) and (2) of the Act:\r\n(i) The goods should be excisable goods;\r\n(ii) They should be such as are sold in the package;\r\n(iii) There should be requirement in the SWM Act or the Rules\r\nmade thereunder or any other law to declare the price of such\r\ngoods relating to their retail price on the package;\r\n(iv) The Central Government must have specified such goods by\r\nnotification in the Official Gazette;\r\n(v) The valuation of such goods would be as per the declared retail\r\nsale price on the packages less the amount of abatement.\r\nIf all these factors are applicable to any goods, then alone the\r\nvaluation of the goods and the assessment of duty would be under\r\nSection 4-A of the Act.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. A bare perusal of Section 4(A) of the Act and the abovementioned\r\njudgment would show that to attract a MRP based valuation of goods <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under the Central Excise Act, the goods should be notified under Section\r\n4(A) of the Act and that such goods must come within the purview of the\r\nStandards of Weights and Measures (Packaged Commodities) Rules,\r\n1977, which has now been repealed and replaced by the legal Metrology\r\n(Packaged Commodities) Rules,2011.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8. In the present case at hand, the respondent entered into a sale with\r\nthe paramilitary and military as per the terms of agreement signed. While\r\nthe goods in the impugned sale were notified under Section 4(A) of the\r\nAct by way of an official notification in the gazette, what is most relevant\r\nto us is Rule 3(b) of the Legal Metrology (Packaged Commodities) Rules,\r\n2011 which exempts the sale to institutional consumers from its purview.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The purchasers in this case are military and paramilitary\r\ninstitutions, both of whom purchase the goods in bulk from the\r\nrespondent, and then further distribute it to their employees. In this entire\r\nprocess from the sale of the goods to the goods Actually being used by\r\nthe end consumer, the purchaser military and paramilitary institutions\r\nbecome industrial consumers, as they serve as an intermediary between\r\nthe end consumer and the original purchaser.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Due to the purchasers, on account of them being institutional\r\nconsumers, are exempt from the Legal Metrology (Packaged <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Commodities) Rules, 2011, and since Section 4(A) of the Act mandates\r\nthe applicability of the abovesaid rules, the transaction automatically\r\nbecomes ineligible to claim refuge under Section 4(A) of the Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. For the sale of goods to take refuge under Section 4(A) of the Act\r\nand pass the test of point (iii) in the Jayanti Judgment, there must be a\r\nrequirement in the the Legal Metrology Act, 2009 or the rules made\r\nthereunder to declare the price of such goods relating to their retail price\r\non the package. In simpler terms, it would mean that for a sale of goods\r\nto take assessment benefits under Section 4(A) of the Act, it must be a\r\nretail sale, and there must be a mandate of law that directs the seller to\r\naffix a retail price on the goods for a sale to be considered a retail sale.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. It would also mean that a mere affixation of the MRP on a good\r\ndoes not qualify it to claim benefits under Section 4(A) of the Act, and\r\nthat there must be a “requirement” for the affixation of such MRP.\r\nTherefore, even if there is affixation of MRP in the goods, what must be\r\nlooked at it is whether such affixation was mandated by law.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. Apart from the exemption granted by way of Section 3(b) that\r\nautomatically removes the mandate of law to affix an MRP on the sold\r\ngoods, the said sale still cannot be considered a retail sale because the\r\nsale of the goods must be done to a consumer.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. In such a circumstance, where the purchaser institution is deemed\r\nto not be a consumer, the sale also cannot be held to be a retail sale as per\r\nthe Act. Further, since the impugned sale is not a retail sale as per the Act,\r\nthere exists no mandate of law on the Respondent herein to affix an MRP\r\non the goods sold, and hence the said impugned transaction cannot claim\r\nbenefit under Section 4(A) of the Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. Again, at the sake of repetition, we find it important to clarify that\r\nthe mere affixation of MRP does not make goods eligible to find refuge\r\nunder Section 4(A) of the Act, and what is required along with such\r\naffixation is a mandate of law that directs the seller to affix such MRP.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. Further, It is important to note that the tribunal in its reasoning for\r\npassing the impugned judgment only considered whether the goods in\r\nquestion were notified by way of a gazette, and did not consider the other\r\nfour relevant conditions laid down by the Jayanti foods judgment. By not\r\nconsidering other relevant considerations, it is our opinion that the\r\ntribunal has committed a grave error in law, and hence the impugned\r\njudgment is liable to be set aside.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. In view of the above-mentioned facts and discussions, the CESTAT\r\ncommitted an error in law by passing the impugned order dated\r\n09.01.2019 and the Respondent being under an obligation is directed to\r\npay the differential amount to the relevant tax authority.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. These appeals, accordingly, stand allowed. However, in the facts\r\nand circumstances, we do not make any order as to costs. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'eff42e9eb2f01bb5b855edcd12451cd0.jpeg', '2812816df2d49748ddd39114db8a7a9d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-24', 1, '', '', '2023-03-23 13:01:21', '2023-03-24 14:56:04'),
(1683, 'h929pRQaBK9ntzyOQ04csCfZb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Literal meaning of ‘residence’, by requiring actual physical presence every day and every moment is not correct with rapid advancement of the means of communication and transport. US Green Card holder is also a \'resident of India’. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>V. Prakash Vs M/s/ P.S. Govindaswamy Naidu and Sons Charities.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3791 of 2022 decided on 9 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Vineet Saran and Justice Dinesh Maheshwari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.1 In the suit aforesaid, the plaintiff-appellant sought the relief of\r\ndeclaration that he was entitled to be appointed as the founder trustee of\r\nthe public trust M/s. P.S. Govindaswamy Naidu & Sons’ Charities\r\n(respondent No. 1 herein)3\r\n as per its Scheme of Administration4\r\n, for being\r\nthe surviving male descendant of the branch represented by his late\r\nfather. The claim of plaintiff-appellant was resisted by the contesting\r\nrespondents with reference to the fact that he was a Green Card Holder\r\nof the United States of America and was not fulfilling the requirements of\r\n‘residing within the area of Madras Presidency’, as envisaged by the\r\nScheme of Administration. The Trial Court held that the plaintiff-appellant\r\nwas indeed a resident of the area in question and was duly qualified to\r\nhold the position of founder trustee of the respondent-Trust. The High <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court, however, took the view opposite with reference to the fact that the\r\nplaintiff-appellant was continuously holding a Green Card and had stayed\r\nin India less than half of the time in the past; and the assertion of his\r\nintent of permanently residing in India was contradicted by the evidence\r\non record. Therefore, the High Court set aside the judgment and decree\r\nof the Trial Court.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. Having given thoughtful consideration to the rival submissions and\r\nhaving examined the material placed on record, we are clearly of the view that this appeal deserves to succeed and the decree of the Trial Court\r\ndeserves to be restored. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. The High Court has posed a question that certificates do not\r\ndisclose that out of 979 days in seven years, how many days the appellant\r\nwas in Madras Presidency? Again, the approach of the High Court does\r\nnot commend to us. It has not been shown if the appellant had not been\r\navailable in the area in question so as to effectively participate in the\r\nadministration and management of the Trust. Mere holding of Green Card\r\nof the United States of America cannot be treated as decisive of the matter\r\nin the present case.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. The High Court has made adverse comments on the justified\r\nobservations of the Trial Court that in view of the scientific advancements,\r\nthe word ‘reside’ should not be given that meaning as was understood a\r\ncentury back. With respect, such observations of the High Court are again,\r\nnot in conformity with the principles of construction of a document.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. In order to buttress its reasoning, the High Court has even gone to\r\nthe extent of suggesting a proposition in paragraph 25 of the impugned\r\njudgment which, to say the least, does not stand to logic. The High Court\r\nhas observed that if the construction of sentence or words was to be\r\nmade with reference to the present-day scenario, sometime later some <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judge might think that restricting the trusteeship to male member was\r\nagainst gender justice and it should be read to include female too. With\r\nrespect, we are unable to endorse this approach. The hypothesis as\r\nsuggested by the High Court is of the process of altering the term of a\r\ndocument. The question at hand is of assigning a logical, contextual and\r\ncontemporary meaning to a particular expression. It is one thing to alter\r\nthe term of a document and cannot be equated with the process of\r\nassigning a purposeful meaning to a particular expression. In the true\r\nrules of construction, the words are always assigned the meaning which\r\nstand in tandem with their context, while assuring that the assigned\r\nmeaning serves the purpose.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>29.1. The requirements of physical residence, with the rapid\r\nadvancement of the means of communication and transport cannot be\r\nignored particularly when the purpose of the term ‘residence’ in document\r\nin question is to ensure participation in the affairs of the trust effectively,\r\nas and when required. The intent of the Trial Court in its observations\r\nhad been only this much that in view of the present-day advancement,\r\nliteral meaning of residence, by requiring actual physical presence every\r\nday and every moment is not correct. We have no hesitation in endorsing\r\nthe views and findings of the Trial Court.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32. After the discussion and analysis foregoing, we have arrived at a\r\nclear conclusion that the contesting respondents had been unjustified in questioning of the eligibility of plaintiff-appellant to hold the office of founder\r\ntrustee with reference to his Green Card and want of permanent residence\r\nin the area in question. This had been the finding of the Trial Court which\r\nwe have no hesitation in restoring, while setting aside the contra conclusion\r\nof the High Court on the merits of the principal issue involved in the matter.\r\nThat being the position, the other arguments of the parties in regard to res\r\njudicata and estoppel need not even be gone into because, in our view, the\r\nresult which the appellant seeks to derive from the operation of these\r\nprinciples has nevertheless been reached in the present case with\r\nreference to the evidence led herein. Thus, we do not propose to elaborate\r\non the issues of estoppel and res judicata as raised by the plaintiff appellant. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32.2. However, in our prima facie opinion, what is applicable to the\r\nquestion of estoppel would not directly apply to the question of res judicata.\r\nThe entitlement of the rival claimants to the office of founder trustee\r\nrepresenting Shri P.S.G. Narayanaswami Naidu branch was a matter innate\r\nand interwoven with the question as raised before the High Court in A.S.\r\nNo. 178 of 2013. The High Court distinctly recorded in its judgment dated\r\n30.06.2014 that there was no dispute about qualification of the rival\r\nclaimants which included the present appellant in his capacity as 10th\r\ndefendant in the said matter. The present contesting respondents were\r\nindeed parties to the said proceedings and particularly the Trust was a party\r\nthereto and was duly represented by the Managing Trustee. When the\r\nquestion of qualification or disqualification could have been raised and was\r\nnot raised by the present contesting respondents, it is difficult to say that the\r\nprinciples of res judicata and at any rate, those of constructive res judicata\r\nin terms of Explanation IV to Section 11 of the Code of Civil Procedure,\r\n1908 would not apply.7\r\n However, we are not elaborating on these aspects <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for the reason that in the present suit, the plaintiff-appellant has, in our view,\r\ncategorically established the fact that he was indeed eligible and was not\r\nsuffering from the alleged disqualification.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. Accordingly, and in view of above, this appeal succeeds and is\r\nallowed; impugned judgment and order dated 04.03.2021 is set aside;\r\nand the judgment and decree of the Trial Court dated 12.10.2020 are\r\nrestored. Consequently, the appointment of respondent No. 10 in the\r\nTrust shall stand annulled and the appellant shall be entitled to hold the\r\noffice of founder trustee representing P.S.G. Narayanaswami Naidu\r\nbranch. As a necessary consequence of our findings and conclusions,\r\nthe claim of the applicant of I.A. No. 80383 of 2021 is rendered\r\nredundant.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>That application also stands rejected.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The parties shall bear their own costs throughout.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd8b2b14a249660fb675739862667cdca.jpeg', 'c33fb0633a73d623125fa536a364199b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-14', 1, '', '', '2022-05-14 15:32:42', '2022-05-14 18:14:05'),
(1821, 'EDEQbhi8eXpw5KV1w2KInFWO1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal proceedings against public servant for defamation cannot be initiated without prior sanction under Section 197 of the Cr.P.C. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>D. Roopa Vs H.N. Sathyanarayana Rao.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 72 of 2022 decided on 6 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is before this Court calling in question the proceedings in C.C.No.2610 of 2020 pending before the IX Additional Chief Metropolitan Magistrate, Bangalore, whereby the learned Magistrate takes cognizance for the offences punishable under Sections 357, 499 and 500 of the IPC.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>Shorn of unnecessary details, facts in brief germane for consideration of the subject lis are as follows:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The respondent/complainant is an officer of the Indian Police Service having retired on attaining the age of superannuation on 31.07.2017.  The petitioner was posted as Deputy Inspector General (DIG) Prisons in the Department of Prisons, Government of Karnataka. The petitioner and the respondent were in the same department and the petitioner was an officer of a rank below to that of the respondent. On 12.07.2017 the allegation is that the petitioner had made defamatory statement on the respondent by way of written words published in the media and had thereby committed offences punishable under Sections 357, 499 and 500 of the IPC. The contention of the respondent is that by the said words, the petitioner had tarnished the image of the respondent by giving wide publicity of the report which was communicated by the petitioner to the Head of the Department. The wide publicity alleged is for the reason print and visual media carried the said report. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>On the basis of the aforesaid report dated 12-07-2017, the respondent registers a complaint invoking Section 200 of the Cr.P.C. for offences punishable under Sections 357, 499 and 500 of the IPC for defamation. After recording statements of witnesses, the petitioner and the respondent, the learned Magistrate in terms of order dated 22-10-2019 takes cognizance and directs registration of criminal case against the petitioner and also issued summons against the accused/petitioner. It is at that juncture the petitioner has knocked the doors of this Court in the subject petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space:pre\">	</span>The learned counsel for the petitioner would urge the following contentions:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a)<span style=\"white-space:pre\">	</span>That since the allegation that is made is performed during the course of conduct of official duty sanction under Section 197 of the Cr.P.C. is mandatory. Admittedly, there is no sanction in the case accorded to prosecute the petitioner and therefore, the entire proceedings would stand vitiated. (b)<span style=\"white-space:pre\">	</span>The ingredients that are required to drive home Section 499 of the IPC are totally absent in the case at hand as the petitioner has communicated to the Head of the Department in the official capacity and there  is  no  evidence  that  the  petitioner  has communicated the same to the media both visual and print. Official communication of true facts or events cannot mean that they would be defamation of any officer much less the respondent. (c)<span style=\"white-space: pre;\">	</span>Section 199 of the Cr.P.C. permits only an aggrieved person to invoke Section 499 or Section 500 of the IPC. The complainant cannot be construed to be an aggrieved person.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>On the other hand, the learned senior Counsel representing the respondent would submit that the petitioner was, on the date of lodging of the complaint, holding a different post and, therefore, no sanction is required to prosecute the petitioner. The incident that has led to the alleged defamation is not referable to any public work that was discharged by the petitioner and, therefore, protection under Section 199(2) of the Cr.P.C. is not available. He would submit that the communication is sent by the petitioner to the head of the Department as also to both print and visual media and as such, it is a matter of trial for the petitioner to come out clean in the proceedings.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>I have given my anxious consideration to the submissions of the learned counsel appearing for the petitioner and the learned senior counsel for the respondent and perused the material on record. In furtherance whereof, the following issues fall for my consideration:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Whether proceedings instituted for offences punishable under Sections 499 and 500 of the IPC for defamation would be rendered illegal for want of sanction under Section 197 of the Cr.P.C.?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>Whether the alleged communication/report dated 12-07-2017 amounts to defamation within the meaning of ingredients of Section 499 of the IPC against the petitioner? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>Issue No.1:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Whether proceedings instituted for offences punishable under Sections 499 and 500 of the IPC for defamation would be rendered illegal for want of sanction under Section 197 of the Cr.P.C.?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner and the respondent are feathers of the same department. Prior to the entry of the petitioner as DIG, Prisons, the respondent was working as DGP & Inspector General (Prisons). The petitioner while working as DIG (Prisons) conducted a review about functioning of prison on 12.07.2017. The outcome of review was a communication to the DGP & Inspector General (Prisons) in the form a report. The report is about continued irregularities in the Prison. The narration contains the inspection conducted by the petitioner from time to time. The narration brings about some grave aspects of illegalities happening in the Prison and also suggested corrective measures that need to be taken. While saying so, it was also noted that there were some allegations against the respondent that also needs to be looked into and stringent action be taken against those who are making such allegations against the respondent. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>The communication is not sent to any other person, as could be seen from the communication itself. It is a simple communication from the petitioner to the respondent who is the Head of Prisons. It would have been a circumstance altogether different if the communication had been made to any other quarter in the Department, Government, print or Visual media. It transpires that newspapers next day carried the report and even the visual media. It is after the publication came about, the respondent retired from service on 31-07-2017 on attaining the age of superannuation. On his retirement, he registers the impugned private complaint against the petitioner alleging that the act of the petitioner in communicating the report and the same being published in both print and visual media has defamed him. The alleged defamatory part of the communication is what is highlighted in the afore-quoted report dated 12.07.2017. On the registration of the private complaint, recording of sworn statement took place and the learned Magistrate takes cognizance of the offence punishable under Sections 357, 499 and 500 of the IPC against the petitioner. It is at that juncture the petitioner has knocked the doors of this Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>It is not, cannot be in dispute that the report communicated by the petitioner to the respondent was in the official capacity. The narration in the report is a blend of inspection taken up by the petitioner from time to time in the official capacity. Therefore, the entire act revolves around the official duties and on the official capacity of the petitioner. If any act being done by a public servant in the official capacity is to be alleged to have a colour of crime and criminal law is to be set in motion, on such allegations sanction for setting such criminal law in motion in terms of Section 197 is imperative. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>It is an admitted fact that the Court has taken cognizance of the offence against the petitioner for offences punishable under Sections 357, 499 and 500 of the IPC. Without doubt, they are offences punishable under the Code and the Court could not have taken cognizance without an order of sanction from the hands of the Competent Authority being placed before the Court. There could have been no question of further proceedings being taken up without an order of sanction. Several Constitutional Courts have, while considering a case that is instituted for the offence punishable under Section 499 or 500 of the IPC which deals with defamation have so interpreted that sanction under Section 197 of the Cr.P.C. is imperative. If the kernel of the article or letter alleging defamation is seen, as quoted (supra), it would demonstrate reasonable connection to the discharge of official duty of the petitioner.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>The aforesaid interpretation is further amplified by the Apex Court in the case of D.DEVARAJA3 (supra), wherein the Apex Court has interpreted sanction under Section 197 of the Cr.P.C. to be imperative, if the allegation that drives a case to the concerned criminal Court is in discharge of official duty or has a reasonable connection to it. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>Insofar as non-obtaining of sanction from the hands of the Competent Authority prior to the Court taking cognizance, it is an admitted fact that in the case at hand, no sanction is sought or accorded by the Competent Authority. Therefore, any proceeding of taking cognizance and setting of criminal law in motion thereon without sanction will lose its legs to stand and would, therefore, suffer from want of tenability.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space: pre;\">	</span>The judgments relied on by the learned senior counsel representing the respondent would bring no assistance to him as they are all judgments rendered in the peculiar facts of those cases. It is no law, declared by the Apex Court that sanction would not be required if the public servant has ceased to hold that particular post. As long as the public servant remains a public servant and his/her actions are sought to be alleged of crime, sanction would become necessary.  The judgment in the case of PARKASH SINGH BADAL (supra) was concerning requirement of sanction after PARKASH SINGH BADAL had ceased to be the Chief Minister of Punjab. The act committed while he was the Chief Minister was sought to be alleged after cessation of office. The cadre officers would cease to become public servants only on their cessation of service by any mode. They cannot be compared to politicians. Same goes with every judgment that is relied on by the learned senior counsel appearing for the respondent. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space: pre;\">	</span>The other judgments that are relied on are concerning the fact whether sanction under Section 197 of the Cr.P.C. would be required for acts performed by such public servant which were not in the discharge of their official duty. The reasonable connection between the official duty and the alleged act committed by those public servants is what was considered by the Apex Court in the other case – URMILA DEVI (supra). Therefore, the judgments relied on in the case of D.DEVARAJA (supra) and that of other High Courts is what would become applicable to the case at hand and none of the armory from the arsenal of the learned senior counsel appearing for the respondent would support the case of the respondent, as the judgment in the case of D.DEVARAJA (supra) is overwhelming qua the facts of the case at hand. Therefore, I answer issue No.1 against the respondent holding that the learned Magistrate could not have taken cognizance of the aforesaid offences without an order of sanction for such prosecution from the hands of the Competent Authority.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>Issue No.2:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>Whether the alleged communication/report dated 12-07-2017 amounts to defamation within the meaning of ingredients of Section 499 of the IPC against the petitioner?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The second issue is as to whether the report submitted would be defamatory also merits consideration. In my view, the report was an official communication from the petitioner to the head of the department.  The factual happenings in the prison were highlighted and what was being spoken about was only a caution. A pure official communication without it being referred to any other department or a quarter, cannot become the ingredient of Section 499 of the IPC.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>A perusal at the provision of law that is invoked to bring in allegations under Section 499 of the IPC clearly mandates that one who makes or publishes any imputation concerning any person with an intention to harm is said to defame the said person, except the issues covered under the exceptions. Therefore, making or publishing is the nucleus of the section. The words makes or publishes if considered qua the impugned communication, it becomes clear that even if it is made, it is not published to any quarter by the petitioner. Making of the communication is also restricted to the reporting of outcome of the inspection and between two people. It is, on its perusal, a pure official communication between two people as to what was happening in the prison during the inspection that was conducted. In these circumstances, reference being made to the judgment of the Apex Court in the case of RAJESH RANGARAJAN V. CROP CARE FEDERATION OF INDIA AND ANOTHER, becomes apposite.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>In the light of the preceding analysis and the admitted fact that no sanction is sought or granted by the Competent Authority to prosecute the petitioner for offences punishable under Sections 499 and 500 of the IPC and the fact that the communication being purely official between two people, the contents of it, in the considered view of this Court, would not attract the ingredients of Section 499 of the IPC, as it cannot be held to be defamatory. Therefore, I hold issue No.2 in favour of the petitioner for the reasons indicated hereinabove. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>It is trite that criminal prosecution is a serious matter; it affects the liberty of a person, therefore, in cases where this Court finds that permitting further proceedings would become an abuse of the process of the law or would result in miscarriage of justice, exercise of jurisdiction under Section 482 of the Cr.P.C. to obliterate such proceedings would become imperative. Wherefore, further proceedings against the petitioner, cannot be permitted to be continued. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space:pre\">	</span>O R D E R</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>The Criminal Petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (ii)<span style=\"white-space:pre\">	</span>The impugned proceedings in C.C.No.2610 of 2020 pending before the IX Additional Chief Metropolitan Magistrate, Bangalore stands quashed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8807b91ebaac2d0c59f9b17237e8e935.jpeg', 'a299b87f8385fad93689b68238881021.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-16', 1, '', '', '2022-06-15 17:53:57', '2022-06-16 06:28:25');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2879, 'UvLcCfWt9zz8hqYgMNIp1b57g', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 41A. When police issues notice under Section 41A, the apprehension of arrest is not completely ruled out. Hence petition for anticipatory bail is maintainable. Karnataka High Court.', '<h4><b>Ramappa@Ramesh vs The State of Karnataka.&nbsp;</b></h4><h4><b>Criminal Petition 101022 of 2021 decided on 22 June 2021.</b></h4><h4><b>Justice Shivashankar Amarannavar.&nbsp;</b></h4><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><span style=\"font-size: calc(1.275rem + 0.3vw); font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent;\"><br></span></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><span style=\"font-size: calc(1.275rem + 0.3vw); font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent;\">This petition is filed by the petitioner&nbsp; under Section 438 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Cr.P.C.’, for brevity) seeking bail in Banahatti ROR Crime No.33/2020-21 of Range Forest Officer, Banahatti Range, Bagalkote Division, registered for the offences punishable under Sections 80, 84, 86 and 87 of Karnataka Forest Act, 1963, Rule 144 and 145 of&nbsp; Karnataka Forest Rules, 1969 (hereinafter referred to as the ‘Act, for brevity) and Section 379 of IPC.</span></b><br></p><h4 style=\"margin-left: 25px;\"><b>Whether an application for anticipatory bail under Section 438 of Cr.P.C., is maintainable on behalf of a person who has never been arrested&nbsp; to but has been noticed by the police officer under Section 41-A of Cr.P.C?<br></b></h4><h4><b>7. Chapter V of Cr.P.C.&nbsp; deals with ‘arrest‘ of persons. Section 41 Cr.P.C. provides for the exigencies and circumstances under which a police officer may arrest any one without warrant.&nbsp;<br></b></h4><h4><b>8....The&nbsp; power to arrest for the offence under this category is, however,&nbsp; not absolute&nbsp; and unqualified. In order to exercise the power of arrest in these category of cases, the police officer must have a reason to believe on the basis of complaint, information or&nbsp; suspicion that any person has committed the said offence and the police officer should be satisfied that such arrest is necessary in terms of&nbsp; any or all&nbsp; of the grounds as mentioned under Section 41(1)(b)(ii)(a,b,c,d,e) of the Code.<br></b></h4><h4><b>10. What emerges from the new scheme&nbsp; of the Code and the amendments to Section 41 is that under both the circumstances i.e. when he decides to arrest or when he decides not to arrest, there has to be a satisfaction of the police officer which satisfaction, of course, is judicially reviewable.&nbsp;<br></b></h4><h4><b>11. Thus, in the event police officer decides not to arrest any person notwithstanding the fact that there are credible information or suspicion of him having committed such offence, then also the police officer is required to record reasons in writing for not making the arrest.<br></b></h4><h4><b>13. Hence, under the new provision of Section 41A of Cr.P.C., it is mandated that the police will not arrest the accused&nbsp; for&nbsp; crimes that are punishable with less than 7 years. Instead, the police can issue a notice informing the accused person/persons that he/they should appear at the police&nbsp; station&nbsp; for investigation.<br></b></h4><h4><b>14. The insertion of Section 41A Cr.P.C., pertaining to issuance of ‘Notice of Appearance‘, is in line with the Right of&nbsp; Life&nbsp; and Liberty of the citizens and seeks to help to bring down the number of arrests,&nbsp; which&nbsp; in turn would decongest the crowded Indian Jails. Simultaneously, the innocents too can feel secure in case they stand a chance of exposure to implication in fake cases.<br></b></h4><h4><b>17. With regard to the ambit of provision under Section 41A of the Cr.P.C., the Apex Court, in the case of Arnesh Kumar Vs. The State of Bihar, reported in AIR&nbsp; 2014&nbsp; SC 2756 considered....<br></b></h4><h4><b>22. Hence, a person gets apprehension of being arrested in two&nbsp; situations:- firstly when&nbsp; a ‘Notice‘ is issued to him&nbsp; under Section 41A&nbsp; (1) of the Code and secondly, after complying the terms of ‘Notice‘ the police officer forms an opinion that such person ought to be arrested&nbsp; or in a situation, such person fails to&nbsp; comply&nbsp; the terms of ‘Notice‘ or is unwilling to ‘identify‘ himself.<br></b></h4><h4><b>23. In all the above three situations such person can maintain an anticipatory bail application as Section 41A of&nbsp; the&nbsp; Code&nbsp; does not stipulate the specific condition of notice of appearance.<br></b></h4><h4><b>25. Section 41A of the Cr.P.C. defers the arrest until and unless sufficient evidence is collected, so as to produce or forward the accused to the custody of the court. The apprehension of arrest,&nbsp; thus, does not completely vanish away on the issuance of notice of appearance under Section 41A of the Cr.P.C., and hence, the question being raised&nbsp; in maintainability of an application under Section 438 Cr.P.C., during the pendency of notice being issued under Section 41A Cr.P.C. or during the compliance of the terms of such<br>notice, is completely unwarranted and is not in tune with the provisions of law. The apprehension of arrest always does exist even after issuance of notice of appearance under Section 41A Cr.P.C. and under such circumstance the Courts&nbsp; cannot evade to entertain an application under Section 438 Cr.P.C.<br></b></h4><h4><b>27. In the result, the petition filed under Section 438 of Cr.P.C., is allowed.&nbsp;&nbsp;<br><br><span style=\"background-color: rgb(255, 255, 0);\">Section 41.&nbsp;</span>When police may arrest without warrant<br>(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person—<br>(a) who commits, in the presence of a police officer, a cognizable offence;<br>(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:—<br>(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;<br>(ii) the police office is satisfied that such arrest is necessary—<br>(a) to prevent such person from committing any further offence; or<br>(b) for proper investigation of the offence; or<br>(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or<br>(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or<br>(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured,<br>and the police officer shall record while making such arrest, his reasons in writing.<br>(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;]<br>(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or<br>(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or<br>(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or<br>(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or<br>(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or<br>(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of Section 356; or<br>(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.<br>Corresponding Law: S. 54 of Act V of 1898.<br>(2) Subject to the provisions of Section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.<br>Corresponding Law: S. 55 of Act V of 1898.<br></b></h4><h4><b><span style=\"background-color: rgb(255, 255, 0);\">Section 41-A</span>. Notice of appearance before police officer<br>(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.<br>(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.<br>(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.<br>(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice.</b></h4>', 'bf055d5a53904d7f56df94dda08deb8f.jpeg', '0064fb0e4078396194414c75f57cc44a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-07', 1, '', '', '2023-04-07 11:46:19', '2023-04-07 11:46:19'),
(2888, '0ID2rNfZY608pnqj9AaQ5frQM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Delay in completion of acquisition and payment of compensation is akin to State taking away the ‘oxygen mask’ from the gasping patient”. Karnataka High Court permits landowner to sell 50% of the land under acquisition to payoff debts. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">T G Shanthamma and others Vs The State of Karnataka and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 4897 of 2023 decided on 27 March 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Krishna S Dixit.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">Petitioners being the owners of land in question are knocking at the doors of writ court with the following principal prayer:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\">“ (a) Issue a Writ of mandamus directing the Respondent No.2 to release at least 50% as ad interim compensation to the petitioners for acquiring the land in Sy.No.207, situated at Hulikunte Village, Doddabelavangala Hobli, Doddaballapura Taluk as per Annexure-A. in the ends of justice and equity.”</span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">Shorn of the textual prayers, learned counsel for the Petitioners submits that his clients would be satisfied if they are permitted to alienate or encumber the subject property which is notified for acquisition under the provisions of Karnataka Industrial Areas Development Act, 1966 since the funds are urgently needed for the medical treatment of some of them who are suffering from the hereditary terminal disease i.e., cancer of varying stages. He highlights the predicament of his clients because of the long durations ordinarily an acquisition of the kind would take for its accomplishment.</font><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">4.<span style=\"white-space: pre;\">	</span>Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to permit alienation or encumbering of a part of the subject property for the following reasons:</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">I.<span style=\"white-space: pre;\">	</span>AS TO INTERRELATIONSHIP BETWEEN CONSTITUTIONAL RIGHT TO PROPERTY AND OTHER FUNDAMENTAL FREEDOMS IN PART III:</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(a)<span style=\"white-space: pre;\">	</span>The right to life & liberty guaranteed under Article 21 of the Constitution of India has seen manifold expansion from precedent to precedent. The fact that the said right is recognized as a basic human right, even under United Nations’ Conventions, needs no mentioning. </span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(b)<span style=\"white-space: pre;\">	</span>After 44th Constitutional Amendment of 1978, the right to property has been relegated from Part III to Part XII, although it is secured by Article 300A, apparently with a lesser degree of efficacy. Even though, the right to property is no longer a fundamental right and was never a natural right, it has to be accepted that without property, practically other rights become illusory vide LALA RAM vs. JAIPUR DEVELOPMENT AUTHORITY4. The Apex Court in TUKARAM KHANA JOSHI vs. MIDC5 has observed that depriving a poor farmer of his immovable property is a violation of Article 21 of the Constitution. When property owned by an individual happens to be his only source of livelihood, right to such a property partakes the character of a ‘fundamental right’ and to that extent its owner can seek refuge under the ever expanding umbrella of Article 21. It needs no research to know that there are several fundamental freedoms that are constitutionally guaranteed under Part-III and they have been essentially founded on the institution of private property. In other words, when the exercise of a particular fundamental right, say Article 19(1)(a) or 19(1)(g) substantially depends upon what an individual owns as property, unreasonably curtailing the rights of ownership   such as right to alienate, encumber, etc, transcends the violation of Article 300A and lands in the prohibited area, namely Part III, to which State cannot gain entry. Thus, breaching property rights may amount to violation of the fundamental right to freedoms guaranteed under Part III of the Constitution.<br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(d)<span style=\"white-space: pre;\">	</span>It is relevant to note that the protection of certain property rights guaranteed by the Second Proviso to Article 31A (1) is founded on the above idea in the sense that, a small agricultural land upon which the livelihood of a person depends, cannot be a subject matter of acquisition under a law that does not provide for the payment of compensation on par with its market value. This protection to the citizen remains as a substantive disability of the State, notwithstanding the repeal of Articles 19(1)(f) or 31(2) since the Second Proviso to Article 31C(1) engrafts an ‘independent provision’ as observed by the Apex Court in MAHAJAN vs. STATE OF MAHARASHTRA7; and there is no such constitutional assurance in respect of other lands.<br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><span style=\"font-weight: bolder;\">The words esteemed jurist of yester decade, Dr. D.D.Basu are aptly reproduced below:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><i><span style=\"font-weight: bolder;\">“3. Under the 2nd Proviso – the person whose land is ‘acquired’ is entitled to ‘compensation’ being not less than the market value of the land, provided (a) such land is comprised in an estate which is being acquired; (b) it is under his personal cultivation; and (c) the quantum of land so held by him is within the ceiling limit of holding prescribed by the competent Legislature…</span></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><i><span style=\"font-weight: bolder;\"><br></span></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><i><span style=\"font-weight: bolder;\">4. … The underlying idea of this Proviso is that a person who is cultivating land within the ceiling limit personally, which is the source of his livelihood, should not be deprived of that land under any law protected by Article 31A unless compensation at the market rate is given…”.</span></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><i><span style=\"font-weight: bolder;\"><br></span></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">II.<span style=\"white-space: pre;\">	</span>ACQUISITION OF PRIVATE PROPERTY FOR PUBLIC PRUPOSE AND PAYMENT OF COMPENSATION:</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(a)<span style=\"white-space: pre;\">	</span>Acquisition of public property by the State in exercise of eminent domain is a sovereign power that asserts, either temporality or permanently, its dominion over any portion of the soil of the State for public purpose. The corollary of such acquisition is the payment of adequate compensation for the acquired land. Though Article 300A does not, in so many words, include such a ‘right to compensation’, it is ‘in built’ vide K.T PLANTATION vs. STATE OF KARNATAKA9. Overarchingly, such a duty to provide compensation arises from the fact that ours is a Welfare State wherein the institution of private property is constitutionally recognized.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">(b)<span style=\"white-space: pre;\">	</span>If the petitioners are not permitted to encumber or alienate the subject property which is their only source of income, from which the required medical treatment can be hopefully bought, they may fall prey to the predatory disease of the kind; thus, the long pendency of acquisition process itself would imperil their life unless some ‘exit strategy’ is worked out within the frame work of law consistent with the requirement of justice of the times, in which petitioners are placed by the conspiracy of circumstances beyond their control. In the exceptional circumstances of this case, denying relief to terminally ailing citizens, especially when their property in question is the only means of holding the body & soul together, by securing medical treatment, would render the constitutional guarantee to life a mere farce. To put it in the words of late Antonin Scalia of U.S. Supreme Court, the Constitution will be nothing more than a ‘parchment guarantee’. Therefore, petitioners need to be permitted to alienate or encumber a reasonable portion of the property that is still in the initial process of acquisition so that they can keep their life boat afloat.</font><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><i><span style=\"font-weight: bolder;\"><br></span></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">III.<span style=\"white-space: pre;\">	</span>AS TO CONSTITUTIONAL RIGHT TO PROPERTY AND PERMISSIBILITY OF ALIENATION OF PROPERTY NOTIFIED FOR ACQUISITION:</font><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(c)<span style=\"white-space: pre;\">	</span>The Karnataka Legislature has enacted Karnataka Land (Restriction on Transfer) Act, 1991, is true. Section 4 of the Act reads as under: “<i>Regulation of transfer of lands in relation to which acquisition proceedings have been initiated.- No person shall, except with previous permission in writing of the competent authority, transfer, or purport to transfer by sale, mortgage, gift, lease or otherwise any land or part thereof situated in any urban area which is proposed to be acquired in connection with the Scheme in relation to which the declaration has been published under Section 19 of the Bangalore Development Authority Act, 1976 or section 19 of the Karnataka Urban Development Authorities Act, 1987.”</i></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">The provision mentioned above restrains alienation of any land or part thereof which is put in acquisition under the provisions of the Bangalore Development Authority Act, 1976 or the Karnataka Urban Development Authorities Act, 1987. It is also conditioned by the land being in any urban area. The prohibition is also not absolute in the sense that the transfer can be effected with previous permission of the competent authority. However, the case of petitioners remains miles away from this enactment inasmuch as the process of acquisition is not under any of the two Statutes enlisted therein but it is indisputably under the provisions of the Karnataka Industrial Areas Development Act, 1966. Indisputably, acquiring huge lands under the special legislations like the 1966 Act involves a cumbersome & tardy procedure and by its very nature, the acquisition process of the kind would take a long time for its fructification as has been observed in W.P.No.61426/2016 (LA-KIADB) between SRI.M.V.GURUPRASAD & ANOTHER VS. STATE OF KARNATAKA & OTHERS, disposed off on 10.02.2023.</font><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">V.<span style=\"white-space: pre;\">	</span>AS TO COURT RENDERING A DECISION NOT TO STATE ITS PRECEDENTIAL VALUE:</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(a) The submission of learned Sr. Panel Counsel appearing for the KIADB that permitting the land owners to transact with the lands in acquisition process, would create a bad precedent and therefore, the Court should clarify that this judgment shall not be used as a precedent in other cases, is bit difficult to countenance and reasons for this are not far to seek: A decision is liable to be subjected to a process of interpretation. The phrase ‘the ratio decidendi’ of a case may mean either the rule that the Judge who decided the case, intended to lay down and apply to the facts or the rule that a later Court concedes him to have had the power to lay down. There is a distinction between the ratio decidendi, i.e., the Courts own version of the rule of the case, and the true rule of the case, to wit what it will be made to stand for by another later Court. Ordinarily, the Court rendering a decision, does not itself state the precedential value of such a decision; it is for the later court before whom such a decision is cited, to consider whether it has the binding characteristics of a ratio decidendi. Of course, when it comes to the highest arbitral tribunal of the land, different consideration may weigh, as it happened when majority of the Judges in KESAVANANDA13 formulated the propositions emerging from the decision. Added, there are issues of ‘parity in treatment’ in the sense that the like cases have to be decided alike and as a corollary to this, similarly circumstanced litigants cannot be denied the relief which others have been granted.<br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">In the above circumstances, this writ petition is allowed in part; petitioners are permitted to alienate or encumber 50% of the property in question now put in acquisition process, subject to the following conditions:</span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">(i)<span style=\"white-space: pre;\">	</span>The petitioners shall inform in writing the intending buyers or lenders about the property being in the acquisition process that may take its own time for fruition;</span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">(ii)<span style=\"white-space: pre;\">	</span>The petitioners shall not have objection for the acquisition of the property in question and therefore their buyers/lenders too shall not have the right to challenge the same;</span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">(iii)<span style=\"white-space: pre;\">	</span>The buyers/mortgagees shall have right to claim compensation or its enhancement, should acquisition of the property be accomplished in due course and in the case of delayed acquisition, to lay a claim for interest;</span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">(iv)<span style=\"white-space: pre;\">	</span>Petitioners shall inform in writing to the State & to the KIADB the names of buyers/lenders and shall also furnish a certified copy of registered conveyance or the loan papers as the case may be immediately after such a transaction is accomplished.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">(v)<span style=\"white-space: pre;\">	</span>Nothing observed hereinabove shall otherwise affect the ongoing acquisition process and rights of the parties.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">Costs made easy.</span></p>', 'dd48420b78ce33625f6a7f6bce7e970d.JPG', '88a4b4cda6fffeb0939c6ec179ad9e3d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-11', 1, '', '', '2023-04-10 15:29:25', '2023-04-11 14:37:23');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2881, 'Ypn2mPw28jITgGrOhft3XoJ7w', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for specific performance. When entire sale consideration is paid and possession of the property is also delivered to the agreement holder, the readiness and willingness issue becomes illusory. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Thammannagowda Vs Ramegowda.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Regular Second Appeal 1082 of 2022 decided on 27 March 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice H.P. Sandesh.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>The plaintiff in O.S.No.160/2012 in the plaint has contended that the suit schedule property bearing Sy.Nos.94 and 95 measuring 2 acres 9 guntas situated at Kirugadalu Village was granted to the plaintiff on 08.11.1978. As per the grant, khatha has been changed in the name of the plaintiff and from the date of grant, the plaintiff is in possession and enjoyment of the suit schedule property. The defendant has created some documents and trying to interfere with the plaintiff’s possession and also tried to destroy the crops standing in the schedule property and hence without any alternative, the plaintiff was constrained to file the suit for the relief of permanent injunction. In pursuance of the suit summons, the defendant appeared and filed the written statement contending that he had entered into the agreement of sale with the plaintiff on 03.07.1987. On the date of agreement itself, the possession of the suit schedule properties was delivered to the defendant and thereafter the defendant had handed over the possession to his brother and his brother is in possession of the suit schedule property. Even though the plaintiff is not in possession of the suit schedule property, he has filed the frivolous suit only to dispossess the defendant from the schedule property and to harass the defendant.</font><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">5.<span style=\"white-space: pre;\">	</span>Based on the pleadings of the parties, the Trial Court framed the issues in a suit for bare injunction. The plaintiff in order to prove his case examined four witnesses as P.W.1 to P.W.4 and got marked the documents at Exs.P.1 to 21. The defendant examined one witness as D.W.1 and produced 51 documents as Exs.D.1 to 51 and also examined three witnesses as D.W.2 to D.W.4. The Trial Court having considered both oral and documentary evidence placed on record, decreed the suit against the defendant and hence the defendant filed an appeal in R.A.No.26/2018, wherein it is contended that the possession is with the defendant consequent upon the sale agreement and the Trial Court failed to appreciate the material on record. The First Appellate Court on considering the grounds urged in the appeal memo, formulated the points whether the plaintiff proves that he is in possession and enjoyment of the suit properties as on the date of the suit and the alleged interference by the defendant and whether the plaintiff is entitled for the relief of permanent injunction. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record, dismissed the appeal and hence R.S.A.No.1082/2022 is filed before this Court.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">20.<span style=\"white-space: pre;\">	</span>Having considered the grounds urged in both the appeals, the substantial questions of law which arises for consideration of this Court are:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(1)<span style=\"white-space: pre;\">	</span>Whether both the Courts committed an error in ignoring the material on record and the finding amounts to perversity?</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(2)<span style=\"white-space: pre;\">	</span>Whether the suit is barred by limitation for the relief of specific performance as contended by the defendant and whether Article 54 of the Limitation Act applies?</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(3)<span style=\"white-space: pre;\">	</span>Whether both the Courts committed an error in not grating the relief of specific performance as sought in O.S.No.191/2012?</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(4)<span style=\"white-space: pre;\">	</span>Whether both the Courts have committed an error in granting the relief of injunction in favour of the plaintiff in O.S.No.160/2012?</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(5)<span style=\"white-space: pre;\">	</span>What order?<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">Point No.(2)</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">21.<span style=\"white-space: pre;\">	</span>Having considered the material on record, in a suit for specific performance, the plaintiff has pleaded that there was a sale agreement dated 03.12.1987 and sale consideration was Rs.7,000/- and entire sale consideration was paid and there was a non-alienation clause when the property was granted in favour of the defendant and hence, he had executed the sale agreement as well as power of attorney and also delivered possession in favour of the plaintiff and the defendant did not come forward to execute the sale deed.   Hence, without any other alternative, suit is filed for the relief of specific performance. In pursuance of the suit summons, the defendant appeared and filed the written statement, wherein he denied the very execution of the sale agreement and power of attorney and contended that, no sale consideration was received and the plaintiff has created those documents. However, admitted that there was a non-alienation clause while granting the land for a period of 15 years and the other averments made in the plaint are denied. The Trial Court, while considering the material on record and the pleadings of the parties, framed six issues and appreciated the evidence available on record i.e., the evidence of P.Ws.1 and 2 and D.Ws.1 to 3 and also the documentary evidence. Though the defendant denied the very execution of the sale agreement, in the cross- examination, the defendant categorically admitted that the property was granted by the Government and there is a non-alienation clause and he had not instituted any suit to cancel the agreement but, he admits that the signature found in Ex.P1 belongs to him but, denied the signature found in Ex.P2-general power of attorney. Hence, it is clear that sale agreement was executed by the defendant in favour of the plaintiff on 03.12.1987 and both the Courts failed to take note of the document of Exs.P1 and P2.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">23.<span style=\"white-space: pre;\">	</span>Having considered the contents of the document, it is clear that there was prohibition i.e., non- alienation clause in the grant itself. Hence, sale agreement came into existence and no time is stipulated but, it is only mentioned that, after expiry of the non- alienation period, both the parties shall give notice before one month and execute the sale deed and the said clause is applicable not only to the plaintiff but, also to the defendant. Apart from that, both the Courts lost sight of Clause No.2, wherein it is specifically mentioned that power of attorney will be valid till execution of the sale deed and Clause No.4 is also very clear that sale agreement is valid till execution of the sale deed and both the Courts failed to take note of the documents and the Clauses mentioned in toto and the First Appellate Court committed an error in only relying upon Clause No.3 and failed to take note of other clauses i.e., Clause Nos.2 and 4.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">27.<span style=\"white-space: pre;\">	</span>In the case on hand, when there was a non- alienation clause and entire sale consideration is paid, the question of readiness and willingness to pay the balance consideration money is not of much importance in view of the admitted factual aspects of the judgment reported in ILR 2003 KAR 3533 and the said judgment aptly applies to the facts of the case on hand and there is no obligation on the part of the plaintiff either by making any payment of balance sale consideration, since already paid the entire sale consideration and possession was also delivered in favour of the plaintiff as on the date of execution of the sale agreement and the recitals in the power of attorney is also very clear that, all powers are given to the agreement-holder even for cultivating the property. The judgment relied upon by the learned counsel for the respondent that is the unreported judgment of this Court in R.S.A.No.6217/2012 is not applicable to the facts of the case on hand having considered the discussions made in Para No.15 of the judgment, wherein there was an endorsement by the plaintiff himself that he consents for defendant to sell plot Nos.198 and 199 which he had intended to purchase. When such materials are available before the Court, the very contention of the learned counsel for the respondent that Article 54 of the Limitation Act applies cannot be accepted and Article 54 of the Limitation Act applies when no time period is fixed in the agreement to have the sale deed and time was already fixed for execution of the document and not performing any part of contractual terms.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">29.<span style=\"white-space: pre;\">	</span>I have already pointed out that, there was a reference in the sale agreement with regard to very execution of the general power of attorney. The learned counsel for the appellant also relied upon the judgment of the Allahabad High Court and also the judgment of the Apex Court from Punjab and Haryana High Court with regard to presumption under Section 85 of the Evidence Act for having attested the document.   Hence, I do not find any force in the contention of the learned counsel for the respondent that suit is barred by limitation. Hence, I answer point No.(2) as ‘negative’.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">Point Nos.1, 3 and 4:</span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">30.<span style=\"white-space: pre;\">	</span>The parties and the issue between the parties are one and the same in the said suits and the appellant- defendant in the original suit filed by the respondent- plaintiff while seeking the relief of permanent injunction set out the defence that there was a sale agreement and possession was also delivered in favour of the agreement-holder. No doubt, in the other suit also, the appellant-plaintiff while seeking the relief of specific performance pleaded the same but, nothing is stated in the suit filed by the respondent/plaintiff in his suit while seeking the relief of permanent injunction with regard to the sale agreement as well as the execution of the general power of attorney.<br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">31.<span style=\"white-space: pre;\">	</span>Having considered the material on record, though the original owner has denied the very execution of the sale agreement, but during the course of cross- examination, he categorically admitted the very execution of the sale agreement and this Court also, taken note of the same while answering point No.2 with regard to the limitation is concerned that both the Courts ought to have taken note of the signatures found in the documents of Exs.P1 and P2 i.e., sale agreement as well as the power of attorney and both the Courts ought to have invoked Section 73 of the Evidence Act to compare the signatures and no doubt, the Court cannot act as an expert, however, can compare the signatures and powers are vested with the Court to compare the same and this Court also comes to the conclusion that both the signatures are one and the same. When such being the case, it is also important to note that, when the original documents are also handed over to the prospective purchaser and those documents are also in the custody of agreement-holder, no explanation is given for the same and it is only stated that originals were lost but, no such pleadings or explanation with regard to the delivery of the original documents in favour of the prospective purchaser or that the original owner lost the same.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">33.<span style=\"white-space: pre;\">	</span>It is also not in dispute that original owner also challenged the entries made by the prospective purchaser before the revenue authority contending that transfer of property in the name of prospective purchaser is not in accordance with law and the same is illegal and revenue authority also set aside the same and merely because the entries are found in the name of the original owner, when there was a sale agreement between the parties, the Trial Court also ought not to have granted the relief of permanent injunction in favour of the original owner only on the ground that entries are found and failed to take note of the recitals in Exs.P1 and P2 i.e., sale agreement and general power of attorney and possession was delivered as on the date of the sale agreement itself and original documents were also handed over to the prospective purchaser.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">34.<span style=\"white-space: pre;\">	</span>When such being the case, no doubt, while granting the relief of specific performance, the Court has to consider the material on record, particularly readiness and willingness, in the case on hand, the entire sale consideration has been paid and possession was also delivered. When such being the case, the readiness and willingness is nothing but illusory as observed in the judgment referred (supra) by the learned counsel for the appellant and possession was also delivered and there was non-alienation cause for a period of 15 years and the same is also admitted by the defendant in the written statement itself. While executing the sale agreement, specific clause is mentioned that land was granted by the Government and there is a non-alienation clause for 15 years. It is also mentioned that, after expiry of non- alienation period, within one month, both the parties shall give notice to each other and execute the sale deed. But, in the case on hand, immediately after expiry of 15 years of non-alienation period, notice was not given and the Trial Court has discussed in detail with regard to the said fact considering the grant of the year 1978 but, though application was given in the year 1978, the saguvali chit was issued in terms of Ex.P22 in the year 1985 and while issuing the saguvali chit, non-alienation clause was put in the said document and expiry of period of non-alienation clause in 2002 and not as observed by the Trial Court. No doubt, notice was given in the year 2012, no time period was stipulated for enforcement of agreement and the same is for executing the sale deed and there was no refusal of the execution of the sale deed in the meanwhile and no correspondence has also taken place between the parties as mentioned in Clause- 3 of the sale agreement and notice was issued only in 2012 and only when the defendant-original owner tried to change the document in his favour, filed the review appeal before the Assistant Commissioner.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">35.<span style=\"white-space: pre;\">	</span>When such being the material on record, these are the factors which ought to have been considered by the Trial Court as well as the First Appellate Court when the relief is sought for the specific performance and the sale agreement was also entered in the year 1987 itself and the plaintiff had not approached the Court since, there was a non-alienation clause in the very grant itself. These are the materials which have not been considered by the Trial Court and also the First Appellate Court and both the Courts lost sight of the same. Hence, I am of the opinion that the Trial Court as well as the First Appellate Court have committed an error in not appreciating the material available on record when the defendant categorically admitted in the cross- examination with regard to the execution of the sale agreement, though he denied that no such sale agreement and power of attorney was executed and signature found in the documents ought to have been compared and the same has not been considered by the Trial Court as well as the First Appellate Court and erroneously doubted the very transaction in not relying upon the document of power of attorney and failed to consider the material on record and the very non- consideration of the material on record amounts to perversity in exercising the discretion and the discretion ought to have been exercised judiciously and not arbitrarily. Therefore, the plaintiff is entitled for the relief of specific performance as sought in the suit in O.S.No.191/2012 and consequently, the prospective purchaser, who is in possession of the property in terms of the sale agreement as well as general power of attorney is entitled for the relief as sought. The suit filed by the original owner for the relief of permanent injunction requires to be interfered with and consequently, the suit filed by the original owner in O.S.No.160/2012 requires to be dismissed and the judgment and decree of the Trial Court passed in O.S.No.191/2012 requires to be set aside. Consequently, the judgment passed in both the appeals in R.A.Nos.26/2018 and 5/2018 requires to be set aside. Accordingly, I answer point Nos.1, 3 and 4 as ‘affirmative’.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">Point No.5<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">ORDER</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(i)<span style=\"white-space: pre;\">	</span>The appeals are allowed with cost throughout.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(iv)<span style=\"white-space: pre;\">	</span>The defendant in O.S.No.191/2012 is directed to execute the sale deed within a period of two months and if the defendant fails to execute the sale deed within the stipulated period, the appellant-plaintiff is entitled to have the sale deed in accordance with law</span></font></span></p>', 'b59a5a7726162aca5432ab2c9838acdb.JPG', '889d4394e8fc7231ae67730d7f632098.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-10', 1, '', '', '2023-04-09 18:52:00', '2023-04-10 03:21:47'),
(1687, '3tZBuls5zS3r92lgOj28mF8bG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'National Commission\'s order in an appeal under Section 58 (1)(a)(iii) of the 2019 Act can be questioned in a writ petition before the High Court under Article 227. Supreme Court. ', '<p><b>Ibrat Faizan vs Omaxe Buildhome Private Limited<br>Civil Appeal 3072 of 2022 decided on 13 May 2022<br>Justice M.R. Shah and Justice B.V. Nagarathna</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. We have heard learned counsel for the respective parties at\r\nlength.\r\nAs observed hereinabove, the short question which is posed for\r\nthe consideration of this Court is, “whether, against the order passed by\r\nthe National Commission in an appeal under Section 58 (1)(a)(iii) of the\r\n2019 Act, a writ petition before the concerned High Court under Article\r\n227 of the Constitution of India would be maintainable?”</b><br></p><p><b>It is not in dispute that in the present case, the appeal before the\r\nNational Commission was against the order passed by the State\r\nCommission under Section 47(1)(a) of the 2019 Act. Therefore, against\r\nthe order passed by the State Commission passed in a complaint in\r\nexercise of its powers conferred under Section 47(1)(a) of the 2019 Act,\r\nan appeal to the National Commission was maintainable, as provided\r\nunder Section 58(1)(a)(iii) of the 2019 Act. As per Section 67 of the 2019\r\nAct, any person, aggrieved by an order made by the National\r\nCommission of its powers conferred by sub-clause (i) or (ii) of clause (a)\r\nof sub-section (1) of Section 58, may prefer an appeal against such order\r\nto the Supreme Court. Therefore, an appeal against the order passed by\r\nthe National Commission to this Court would be maintainable only in\r\ncase the order is passed by the National Commission in exercise of its powers conferred under Section 58(1)(a)(i) or under Section 58(1)(a)(ii)\r\nof the 2019 Act. No further appeal to this Court is provided against the\r\norder passed by the National Commission in exercise of its powers\r\nconferred under Section 58(1)(a)(iii) or under Section 58(1)(a)(iv) of the\r\n2019 Act. In that view of the matter, the remedy which may be available\r\nto the aggrieved party against the order passed by the National\r\nCommission in an appeal under Section 58(1)(a)(iii) or Section 58(1)(a)\r\n(iv) would be to approach the concerned High Court having jurisdiction\r\nunder Article 227 of the Constitution of India.</b></p><p><b>12. Whether the National Commission can be said to be a tribunal for\r\nthe purpose of exercise of powers under Article 227 of the Constitution of\r\nIndia by the High Court is concerned, has been considered by a\r\nConstitution Bench of this Court in the case of Associate Cement\r\nCompanies Limited.<br></b></p><p><b>Therefore, the National Commission can be said to be a ‘Tribunal’\r\nwhich is vested by Statute the powers to determine conclusively the\r\nrights of two or more contending parties with regard to any matter in\r\ncontroversy between them. Therefore, as observed hereinabove in the\r\naforesaid decision, it satisfies the test of an authority vested with the\r\njudicial powers of the State and therefore may be regarded as a\r\n‘Tribunal’ within the meaning of Article 227 and/or 136 of the Constitution\r\nof India. Also, in a given case, this Court may not exercise its powers\r\nunder Article 136 of the Constitution of India, in view of the remedy which\r\nmay be available to the aggrieved party before the concerned High Court\r\nunder Article 227 of the Constitution of India, as it is appropriate that\r\naggrieved party approaches the concerned High Court by way of writ\r\npetition under Article 227 of the Constitution of India.<br></b></p><p><b>13. No so far as the remedy which may be available under Article 136\r\nof the Constitution of India is concerned, it cannot be disputed that the\r\nremedy by way of an appeal by special leave under Article 136 of the\r\nConstitution of India may be too expensive and as observed and held by\r\nthis Court in the case of L. Chandra Kumar (supra), the said remedy can\r\nbe said to be inaccessible for it to be real and effective. Therefore, when\r\nthe remedy under Article 227 of the Constitution of India before the\r\nconcerned High Court is provided, in that case, it would be in furtherance\r\nof the right of access to justice of the aggrieved party, may be a\r\ncomplainant, to approach the concerned High Court at a lower cost,\r\nrather than a Special Leave to Appeal under Article 136 of the\r\nConstitution.</b></p><p><b>14. In view of the above, in the present case, the High Court has not\r\ncommitted any error in entertaining the writ petition under Article 227 of\r\nthe Constitution of India against the order passed by the National\r\nCommission which has been passed in an appeal under Section 58(1)(a)\r\n(iii) of the 2019 Act. We are in complete agreement with the view taken\r\nby the High Court. However, at the same time, it goes without saying\r\nthat while exercising the powers under Article 227 of the Constitution of\r\nIndia, the High Court subjects itself to the rigour of Article 227 of the\r\nConstitution and the High Court has to exercise the jurisdiction under Article 227 within the parameters within which such jurisdiction is\r\nrequired to be exercised.<br></b></p><p><b>14.1 The scope and ambit of jurisdiction of Article 227 of the\r\nConstitution has been explained by this Court in the case of Estralla\r\nRubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97, which has been\r\nconsistently followed by this Court (see the recent decision of this Court\r\nin the case of Garment Craft v. Prakash Chand Goel, 2022 SCC\r\nOnline SC 29). Therefore, while exercising the powers under Article 227\r\nof the Constitution, the High Court has to act within the parameters to\r\nexercise the powers under Article 227 of the Constitution. It goes without\r\nsaying that even while considering the grant of interim stay/relief in a writ\r\npetition under Article 227 of the Constitution of India, the High Court has\r\nto bear in mind the limited jurisdiction of superintendence under Article\r\n227 of the Constitution. Therefore, while granting any interim stay/relief in\r\na writ petition under Article 227 of the Constitution against an order\r\npassed by the National Commission, the same shall always be subject to\r\nthe rigour of the powers to be exercised under Article 227 of the\r\nConstitution of India.</b></p><p><b>16. In view of the above discussion and for the reasons stated above\r\nand subject to the observations made hereinabove, it cannot be said that\r\na writ petition under Article 227 of the Constitution of India before the concerned High Court against the order passed by the National\r\nCommission in an appeal under Section 58(1)(a)(iii) of the 2019 Act was\r\nnot maintainable. We are in complete agreement with the view taken by\r\nthe High Court. As the matter on merits is yet to be considered by the\r\nHigh Court, we do not express anything on merits in favour of either of\r\nthe parties. However, it is observed that while considering the question\r\nof interim relief/stay, the High Court will bear in mind the observations\r\nmade hereinabove.\r\n</b></p><p><b>17. The present appeal is accordingly dismissed. However, in the facts\r\nand circumstances of the case, there shall be no order as to costs. <br></b></p><p><br></p>', 'ded0c43e7a0d8a1ac76bfbccec33a0bc.jpg', 'f1e32f181517f5a05602209b797c414f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-17', 1, '', '', '2022-05-17 03:19:58', '2022-05-17 15:49:31'),
(1688, 'koXNOabagDD4uVIibj5fBM7S0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Doctrine of res ipsa loquitur does not strictly apply to criminal cases. Supreme Court. ', '<p><b>Nanjundappa and another vs The State of Karnataka&nbsp;<br>Criminal Appeal 900 of 2017 decided on 17 May 2022<br>Chief Justice N.V. Ramana, Justice Krishna Murari and Justice Hima Kohli.</b></p><p><b>9. Here it would be useful to advert to the dictum in the case of&nbsp; Syad&nbsp; &nbsp;Akbar&nbsp; Vs.&nbsp; &nbsp;State&nbsp; &nbsp;of&nbsp; &nbsp;Karnataka in which this Court proceeded on the basis that doctrine of res&nbsp; &nbsp;ipsa&nbsp; &nbsp;loquitur&nbsp; &nbsp;stricto&nbsp; &nbsp;sensu&nbsp; would&nbsp; not&nbsp; apply&nbsp; to&nbsp; a criminal case as its applicability in an action for injury by negligence is well known. In Syad Akbar (supra), this Court opined: <br></b></p><p><b><i>“29.&nbsp; Such simplified and pragmatic application of the notion of res ipsa loquitur, as a part of the general mode of inferring a fact in issue from another circumstantial fact is subject to all the principles, the satisfaction of which is essential before an accused can be convicted on the basis of&nbsp; &nbsp;circumstantial&nbsp; &nbsp;evidence&nbsp; &nbsp;alone.&nbsp; These&nbsp; &nbsp;are: Firstly,&nbsp; &nbsp;all&nbsp; &nbsp;the&nbsp; &nbsp;circumstances,&nbsp; &nbsp;including&nbsp; &nbsp;the objective&nbsp; &nbsp;circumstances&nbsp; &nbsp;constituting&nbsp; &nbsp;the accident, from which the inference of guilt is to be&nbsp; &nbsp;drawn,&nbsp; &nbsp;must&nbsp; &nbsp;be&nbsp; &nbsp;firmly&nbsp; &nbsp;established. Secondly,&nbsp; &nbsp;those&nbsp; &nbsp;circumstances&nbsp; &nbsp;must&nbsp; &nbsp;be&nbsp; &nbsp;of&nbsp; &nbsp;a determinative&nbsp; &nbsp;tendency&nbsp; &nbsp;pointing&nbsp; &nbsp;unerringly towards the guilt of the accused.&nbsp; Thirdly,&nbsp; the circumstances should make a chain so complete that&nbsp; &nbsp;they&nbsp; &nbsp;cannot&nbsp; &nbsp;reasonably&nbsp; &nbsp;raise&nbsp; &nbsp;any&nbsp; &nbsp;other hypothesis save that of the accused\'s guilt. That is to say, they should be incompatible with his innocence,&nbsp; &nbsp;and&nbsp; &nbsp;inferentially&nbsp; &nbsp;exclude&nbsp; &nbsp;all reasonable doubt about his guilt.” </i></b></p><p><b>10. In case of circumstantial evidence, there is a risk of jumping&nbsp; &nbsp;to&nbsp; &nbsp;conclusions&nbsp; &nbsp;in&nbsp; &nbsp;haste.&nbsp; &nbsp;While&nbsp; &nbsp;evaluating&nbsp; &nbsp;such evidence the jury should bear in mind that inference of guilt should be the only reasonable inference from the facts. In the present case however, the conviction of the accused persons seems wholly unjustified against the weight of the evidence adduced. As far as the onus of proving the ingredients of an offence is concerned, in the judgment titled as S.L.Goswami Vs. State of M.P 1972 CRI.L.J.511(SC)&nbsp; this Court held:­ </b></p><p><b><i>\"5&nbsp; &nbsp;..... In&nbsp; our view,&nbsp; the&nbsp; &nbsp;onus&nbsp; &nbsp;of&nbsp; &nbsp;proving&nbsp; all the ingredients&nbsp; &nbsp;of&nbsp; &nbsp;an&nbsp; &nbsp;offence&nbsp; &nbsp;is&nbsp; &nbsp;always&nbsp; &nbsp;upon&nbsp; &nbsp;the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;accused&nbsp; &nbsp;does&nbsp; &nbsp;not&nbsp; &nbsp;appear&nbsp; &nbsp;to&nbsp; &nbsp;be credible or is palpably false that burden does not become any less. It is only when this burden is discharged that it will be for the accused to explain or&nbsp; &nbsp;controvert&nbsp; &nbsp;the&nbsp; &nbsp;essential&nbsp; &nbsp;elements&nbsp; &nbsp;in&nbsp; &nbsp;the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution&nbsp; &nbsp;to&nbsp; &nbsp;establish&nbsp; &nbsp;the&nbsp; &nbsp;ingredients&nbsp; &nbsp;of&nbsp; &nbsp;the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the&nbsp; &nbsp;same&nbsp; &nbsp;as&nbsp; &nbsp;that&nbsp; &nbsp;which&nbsp; &nbsp;rests&nbsp; &nbsp;upon&nbsp; &nbsp;the prosecution.....\" </i></b></p><p><b>12. For bringing home the guilt of the accused, prosecution has to firstly prove negligence and then establish direct nexus between negligence of the accused and the death of the victim. Perusal of the record reveals that out of various witnesses arrayed by the prosecution, there are no eye witnesses. Any evidence brought on record is merely circumstantial in nature. </b></p><p><b>14. As a consequence, the appeal stands allowed.</b><br></p>', 'da3decc4d260a3b897acbcc2bd7a4998.JPG', 'ee1d6930cc65eb8982ab4096ca7e5f98.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-17', 1, '', '', '2022-05-18 01:31:36', '2022-05-18 01:31:36');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1689, 'MQchXw8SzjUWzZRU4PD4FmEHh', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'IBC. Section 5(2)(d). Obligation to pay rent and premium in respect of a self-financed project on leased plot can’t be treated as an ‘amount raised’ by the lessee from the lessor. Lessor cannot be treated as a ‘financial lessor’. Supreme Court.', '<p><b>New Okhla Industrial Development Authority vs Anand Sonbhadra <br>Civil Appeal 2222 of 2021 decided on 17 May 2022<br>Justice K.M. Joseph and Justice Hrishikesh Roy.</b></p><p><b>138. We are of the view that in the facts of the\r\nappeals before us, we are unable to hold that the\r\nlessee has raised any amounts from the appellant. The\r\nquestion, therefore, of considering the last limb of\r\nSection 5(8)(f), namely, whether it has commercial\r\neffect of a borrowing could not arise. But we can\r\nsafely say that the obligation incurred by the lessee to pay the rental and the premium cannot be treated\r\nas an amount raised by the lessee from the appellant.\r\nIt may be noticed that it is reasonably possible to\r\nfind that the lessee has raised this amount which it\r\nhad to pay to the appellant from some other sources.\r\nThe reliance on the concept of ‘a tool of raising\r\nfinance’ canvassed by the appellants would be\r\ncarrying things too far and to allow them to invoke\r\nit carries with-it far-reaching implications and\r\nbears dangerous portent for the purpose of Section\r\n5(8)(f). We would think that the concept of\r\ndisbursement as present in the main provision appears\r\nto be mandatory in Section 5(8)(f). The purport of\r\nSection 5(8)(f) is to provide for an exhaustive\r\ncatch-all provision.</b></p><p><b>139. One of the contentions raised on behalf of the\r\nrespondent that, since the Law Giver has referred to\r\nlease in Section 5(8)(d) of the IBC and defined\r\n‘financial lease’, as limited only to finance lease\r\nand capital lease, deemed, as such, under the Indian\r\nAccounting Standards, no recourse can be made by the\r\nappellants to Section 5(8)(f), which is a residuary provision. On the other hand, the appellant, while\r\nagreeing that all cases of financial or capital\r\nlease, covered by Section 5(8)(d), cannot be\r\nconsidered under Section 5(8)(f) contends that there\r\ncan be no embargo on the Court, considering whether,\r\nin the lease in question, any amount is raised,\r\nhaving the commercial effect of a borrowing. The case\r\nof the respondent can be understood differently by\r\napplying the principle that, when there is a special\r\nprovision, no light must be allowed to emanate from\r\nthe general provision. Another allied issue, which,\r\nat this juncture, we must address is, whether the\r\nwords, ‘any amount raised under any other\r\ntransaction, in Section 5(8)(f), would involve\r\nattributing the presence of a transaction on the\r\npreceding provisions of Section 5(8). To put it\r\ndifferently, the use of the word, ‘any other’, before\r\nthe word, ‘transaction’, would involve the\r\npresumption that the preceding sub-clauses of Section\r\n5(8), embodied specific transactions. Going by the\r\nwide definition of the word ‘transaction’ in Section\r\n2(33), we find that there is merit in the argument of  the appellant. Section 5(8)(a) to Section 5(8)(e)\r\nproceed on the basis that there is a transaction, as\r\nconceived by the Law Giver. As far as the contention\r\nthat, since the words, ‘lease or hire-purchase\r\ncontract’, is specifically confined to, what is\r\ndeemed as finance or capital lease, falling under the\r\nIndian Accounting Standards, and, therefore, any\r\nliability under such a lease, is not falling under\r\nSection 5(8)(f).\r\n <br></b></p><p><b>140. It is, no doubt, true that in Section 2(33), a\r\ntransaction can be an arrangement in writing, under\r\nwhich, there is transfer of assets, funds, goods and\r\nservices, from or to the corporate debtor. A perusal\r\nof the terms of lease contemplate that the appellant\r\nmust not make available financial facility to the\r\nlessee. The appellant has, admittedly, not made\r\navailable any loan to the lessee. No advance payment\r\nis made by the appellant. It is for the lessee to\r\nfund the project and make the payment from its own\r\nsources. It is entirely for the lessee to finance the\r\npayment of the rent, premium and interest due to the\r\nappellant under the lease. The claim of the appellant, it must be noticed, is for the amount due\r\nby way of premium and interest, besides the lease\r\namount due as on the date of the claim. As far as\r\nthese amounts are concerned, they are not amounts,\r\nwhich have been raised by the lessee from the\r\nappellant. They would have been either from its own\r\nsources or by availing financial facilities from\r\nothers. It is vital to notice that as far as the\r\namount saved by the corporate debtor, to pay the\r\namounts to the appellant, there would be a financial\r\ndebt incurred by the lessor to its lender. The\r\nacceptance of the appellants argument would involve\r\nthat for the said amount the possibility of two\r\nfinancial creditors being present. This is\r\nunacceptable. In fact, the provision relating to\r\nlimited power of mortgaging, available to the lessee,\r\nis for the purpose of financing the construction of\r\nthe flats over the leasehold property. While, under\r\nthe lease, the lessee may have incurred debt towards\r\nthird party, which may be a financial debt. We are of\r\nthe view that we would be placing a wholly strained\r\nand unreasonable interpretation on Section 5(8)(f),\r\n181\r\nif we were to hold that lessee has raised funds from\r\nthe lessor (appellant) under the lease in question.\r\nMerely granting a moratorium, followed by the\r\nstaggered payment in sixteen half-yearly installments\r\nof the balance of premium, cannot possibly lead to\r\nthe conclusion that the respondent has raised the\r\nfunds, under the lease, from the appellant.\r\n</b></p><p><b>141. We may notice that what Section 5(8)(d) of the\r\nIBC provides for is, any liability in respect of any\r\nlease, inter alia, which is, however, confined to a\r\nfinance or capital lease. We are not ruling out the\r\npossibility that, in a lease, not a finance or a\r\ncapital lease, falling under Section 5(8)(d), if it\r\notherwise fulfils the requirements of Section\r\n5(8)(f), it would not fall under the definition of\r\nthe word ‘financial debt’. In other words, Section\r\n5(8)(d) includes only a finance or a capital lease,\r\nwhich is deemed, as such, under the Indian Accounting\r\nStandards. Section 5(8)(f) is a residuary and catch\r\nall provision. A lease, which is not a finance or a\r\ncapital lease under Section 5(8)(d), may create a\r\nfinancial debt within the meaning of Section 5(8)(f),\r\n182\r\nif, on its terms, the Court concludes that it is a\r\ntransaction, under which, any amount is raised,\r\nhaving the commercial effect of the borrowing. All\r\nthat we are finding, in the facts of this case, is\r\nthat the lease in question does not fall within the\r\nambit of Section 5(8)(f). This is for the reason that\r\nthe lessee has not raised any amount from the\r\nappellant under the lease, which is a transaction.\r\nThe raising of the amount, which, according to the\r\nappellant, constitutes the financial debt, has not\r\ntaken place in the form of any flow of funds from the\r\nappellant/lessor, in any manner, to the lessee. The\r\nmere permission or facility of moratorium, followed\r\nby staggered payment in easy installments, cannot\r\nlead us to the conclusion that any amount has been\r\nraised, under the lease, from the appellant, which is\r\nthe most important consideration.<br></b></p><p><b>WHETHER THE APPELLANT IS AN OPERATIONAL\r\nCREDITOR?\r\n<br>142. As far as the case of the respondents that the\r\nappellant is a Local Authority goes, the case of the\r\nrespondent was largely premised on the Judgment of\r\n183\r\nthis Court in Union of India and Others v. R.C. Jain\r\nand Others14. In short, the case of the respondent was\r\nthat the appellant is a Local Authority and the\r\nrental and premium in question, claimed by the\r\nappellant, constitutes amount due to the appellant\r\nunder a law, viz., the UPIAD, read with Section 40 of\r\nthe UP Act of 1973, made applicable to the UPIAD.\r\nUpon this Court pointing out the decision of this\r\nCourt reported in New Okhla Industrial Development\r\nAuthority v. Chief Commissioner of Income Tax and\r\nothers15, wherein this Court has taken the view in the\r\ncase of the appellant itself, that it is not a Local\r\nAuthority. The parties would point out that the said\r\nJudgment, may not apply, as it was rendered in the\r\ncontext of the Income Tax Act. It is also pointed out\r\nthat Judgments, which have been rendered after R.C.\r\nJain (supra), which includes Housing Board of Haryana\r\nv. Haryana Housing Board Employees’ Union and Others16\r\nand Commissioner of Income Tax, Lucknow v. U.P.Forest Corporation are also distinguishable. It is\r\ncontended that of the five tests propounded in R.C.\r\nJain (supra), there is substantial fulfilment of the\r\nsame qua the appellant.\r\n</b></p><p><b>14 (1981) 2 SCC 308<br>15 (2018) 9 SCC 351<br>16(1996) 1 SC 95 184<br></b></p><p><b>143. It was pointed out that under Section 3(r) of the\r\nUP Act of 2010, a cognate law, the appellant is\r\ntreated as a Local Authority. It is also pointed out\r\nthat the appellant does provide civic amenities to\r\nthe local inhabitants and, for the purpose of the\r\nIBC, it is, indeed, a Local Authority. It is also\r\npointed out that the appellant is treated as a Local\r\nAuthority under the Goods and Services Act. Prima\r\nfacie the decision in Noida (supra) may not detract\r\nfrom the appellant being found to be a local\r\nauthority for the purpose at hand. No doubt, we do\r\nnotice that in the context of the proviso to Article\r\n131 of the Constitution of India, this Court did\r\nnotice the distinction between the words ‘arising out\r\nof’ and the words ‘arising under’ and held that the\r\nwords ‘arising under’ bears a narrower meaning (See\r\nalso the discussion of the meaning of the word\r\n17(1998) 3 SCC 530\r\n185\r\n‘arises’ as meaning ‘coming into existence’, in a\r\nJudgment of this Court by Justice Mukherji in Re:\r\nRogers Pyatt Shellac Co. v. The Secretary of State\r\nfor India in Council18, which stands approved in The\r\nCommissioner of Income Tax, Bombay v. Ahmedbhai\r\nUmarbhai and Co., Bombay19.\r\n<br></b></p><p><b>144. The appellant would, in fact, point out that it\r\nis not necessary to probe the matter further, in view\r\nof the concurrent findings that the appellant is an\r\noperational creditor. No doubt, Smt. Madhavi Divan\r\ndoes point out that the words ‘arising under any\r\nlaw’, may not be the same as amounts being made\r\nrecoverable under a law. Of course, she would point\r\nout that as far as the rental part of the claim, it\r\nmay be relatable to the first limb of an operational\r\ndebt. When questioned further, as to what her\r\nposition is, if this Court found that the appellant\r\nis not a financial creditor, the appellant may be\r\nentitled, at least, to be treated as an operational\r\ncreditor. We would think that, having regard to the\r\n18 AIR 1925 Calcutta 34\r\n19 AIR 1950 SC 134 fact that both the NCLT and NCLAT have proceeded on\r\nthe basis that the appellant is an operational\r\ncreditor, we need not stretch the exploration further\r\nand pronounce on the questions, which may otherwise\r\narise. We must not be oblivious to the following\r\nprospect, should we find that the appellant is not an\r\noperational creditor, even under the IBC Regulations\r\napart from claims by financial creditors and\r\noperational creditors, claims can be made by other\r\ncreditors. However, there are, undoubtedly, certain\r\nadvantages, which an operational creditor enjoys over\r\nthe other creditors. We would proceed on the basis\r\nthat, while the appellant is not a financial\r\ncreditor, it would constitute an operational\r\ncreditor.\r\n</b></p><p><b>145. The upshot of the above discussion is that the\r\nappeals must fail. The appeals are, accordingly,\r\ndismissed. Parties to bear their own costs.<br></b></p><p>\r\n<b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', 'b669727d80ae720bd6213fdb3ac224fd.JPG', '991456ad446d2b2314591a16deb91ec0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-17', 1, '', '', '2022-05-18 04:28:48', '2022-05-18 04:34:06'),
(1690, 'bN0vbWQgHa0mBnhrV8WSCdt2l', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bar under Section 132 of the Karnataka Land Reforms Act does not apply to a suit where the very jurisdiction of the Land Tribunal to grant occupancy rights is questioned. Karnataka High Court. ', '<p><b>K.T.Venkatappa by Lrs vs Seethappa and others.&nbsp;<br>Regular Second Appeal 2301 of 2006 decided on 6 April 2022<br>Justice Pradeep Singh Yerur</b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">This is a plaintiffs’ appeal being aggrieved by the judgment and decree dated 31.01.2002 in O.S.No.240/1993 passed by II Addl. Civil Judge (Jr.Dn.) at Bangalore Rural District, Bengaluru, which came to be dismissed and the same having been confirmed in RA.No.170/2002 vide order dated 04.04.2006 by the District</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; white-space: pre;\">	</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judge and Presiding Officer, Fast Track Court No.V, Bengaluru Rural District, Bengaluru.</span><br></b></p><p><b>32.<span style=\"white-space:pre\">	</span>It is the case of the appellant that since they have been the owners and personally cultivating the land prior to coming into force of the Act and having obtained the occupancy rights by filing an application before the Spl. Deputy Commissioner for Inams Abolition which after due enquiry re-granted the suit schedule property to the appellant by declaring him as occupant and as Khathedar vide endorsement dated 03.07.1964. It is also the case of the appellant that in view of the re-grant of land to the appellant in case No.RC 172/1963-64 is in peaceful possession and occupation of the said lands as Khathedar. When such being the case, the question of respondent No.3 – Land Tribunal exercising the jurisdiction to decide the application for grant of occupancy rights in Form No.7 would not arise and it is beyond the jurisdiction of the Land Tribunal as it is only the Spl.&nbsp; Deputy Commissioner under the Inams Abolition Act, who is the competent authority to decide any such grant<span style=\"white-space:pre\">	</span>of occupancy rights.</b></p><p><b>33.<span style=\"white-space:pre\">	</span>Admittedly, deceased Sri K.T.Venkatappa had filed the statement of objections before the Land Tribunal objecting to the grant of occupancy rights in Form No.7 by stating the afore mentioned lack of jurisdiction to the Land Tribunal to consider the said Form No.7. Therefore, primary objection was raised by deceased Sri K.T.Venkatappa before the Land Tribunal with regard to the competency of the Land Tribunal to decide the issue of grant of occupancy rights filed under Form No.7. However, the Land Tribunal proceeded to consider the application filed under Form No.7 and granted the occupancy rights in favour of respondent No.1.&nbsp;</b></p><p><b>34.<span style=\"white-space:pre\">	</span>The appellants filed a suit for declaration of the said order of the Land Tribunal as null and void as stated earlier, taking the very same contention that there was a bar for the Land Tribunal to deal with the matter and accordingly any order passed without jurisdiction is void and non-est and accordingly to declare the same as null and void.</b></p><p><b>36.<span style=\"white-space:pre\">	</span>I find sufficient force in the arguments of the learned counsel for the appellant Sri A.V. Gangadharappa that when a plea is made with regard to bar of jurisdiction of the tribunal, it becomes incumbent and mandatory for the tribunal to answer the said question with regard to its very jurisdiction for entertaining the lis before the tribunal, as it goes into the root of the matter, in the present case the very jurisdiction of the Land Tribunal to entertain or decide the application in Form No.7 for grant of occupancy rights is questioned. It is seen from the order of the Land Tribunal that there is no discussion, reasoning or finding on the said issue of jurisdiction being vested with the Land Tribunal to decide the application for grant of occupancy rights filed in Form No.7, considering the facts and circumstances of the present case.</b></p><p><b>37.<span style=\"white-space:pre\">	</span>The filing of the original suit before the trial Court by the plaintiffs to declare the order of the Land Tribunal as null and void is based on the premise of lack of jurisdiction of the Land Tribunal to entertain such an application filed for grant of occupancy rights. Therefore, appellants-plaintiffs are questioning the very jurisdiction of the Land Tribunal in granting the occupancy rights when it did not have the jurisdiction to do so and the competent authority was the Spl. Deputy Commissioner under the Inams Abolition Act. This question of law touching the root of the matter ought to have been decided by the trial Court as well as the first Appellate Court in a more comprehensive and elaborate manner, whereas the trial Court has dismissed the suit of the appellants-plaintiffs as being barred by provisions of 132(2) of the Act.</b></p><p><b>38.<span style=\"white-space:pre\">	</span>The trial Court by relying on the judgment of this Court in the case of SHIVAPPA BHEEMAPPA AND ANOTHER vs NAGAPPA BHEEMAPPA reported in (1983) 2 Kant. L.J. 248 has held that the order made by the Land Tribunal even if in contravention of rules of procedure is none the less the order of the Tribunal which gets the protection of Section 132(2) of the Act and it cannot be questioned by a suit in Civil Court and that the case on hand does not pertain to a matter falling outside the jurisdiction of the Tribunal.</b></p><p><b>40.<span style=\"white-space:pre\">	</span>On perusal of the above Section and on a plain reading of Section 132(2) of the Act, it is clear that the provision imposes an express bar on Civil Courts as it begins with sentence, no order of the Deputy Commissioner, an officer authorized under sub-section&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(1) of Section 77, the Assistant Commissioner, the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">prescribed authority under Section 83, the Tribunal, the Tahsildar, the Karnataka Appellate Tribunal, or the State Government made under this Act shall be questioned in any Civil or Criminal Court. This, however, means that there is an express bar of the Civil Court or Criminal Court to examine the legality of the order of tribunal, which would be within the specific jurisdiction of the above said authorities mentioned namely, the Deputy Commissioner, the Assistant Commissioner or the Tahsildar.</b></p><p><b>41.<span style=\"white-space:pre\">	</span>On a careful perusal of Section 133(2) of the Act, it is seen that sub-Section (2) of Section 133 empowers the Civil Court or Criminal Court from proceeding with the suit, case or proceedings in respect of any matter other than that referred to in sub- Section(1).issue. However, sub-Section (2) of Section 133 of the Act is explicitly very clear that any matter dealing with the subject other than what is stated in sub-Section (1) of Section 133 of the Act cannot be precluded within the jurisdiction of the Civil Court or Criminal Court. This aspect of the matter is well settled and it is precisely the case of plaintiffs that the case on hand deals with matter which is outside the jurisdiction of tribunal falling squarely within the provisions of Sub-section(2) of Section 133 of the Act whereas it is the case of respondent No.1-defendant No.1 that since the matter falls within the purview of the Land tribunal, the Civil Court does not have jurisdiction to entertain the suit and that the Civil Court was right in dismissing the suit on the ground of maintainability.</b></p><p><b>42.<span style=\"white-space:pre\">	</span>The Legislature in its wisdom has very carefully worded and enacted these two Sections knowing fully well and keeping in mind that the matter shall not be agitated before two forums on the same</b></p><p><b>43.<span style=\"white-space:pre\">	</span>Having heard the erudite arguments of learned counsel for the plaintiffs and learned Senior Counsel for defendant No.1, this Court is deliberately not expressing any opinion with regard to merits of the matter.&nbsp;</b></p><p><b>44.<span style=\"white-space:pre\">	</span>The express provision of sub-Section (2) of Section 133 of the Act is clearly to the effect that the Civil Court/Criminal Court jurisdiction is ousted only in respect of such reliefs as could be granted by the tribunal under the special statute, but in all other aspects, the jurisdiction of the Civil Court apparently is not ousted.</b></p><p><b>45.<span style=\"white-space:pre\">	</span>In the instant case on hand, the question is with regard to whether the tribunal had the jurisdiction to consider the application in deciding the tenancy rights of the parties. It is the case of appellants-plaintiffs that the same is already decided by the Special Deputy Commissioner of Inams Abolition whereas the respondent No.1-defendant No.1 vehemently contends that it is the tribunal which has the jurisdiction to decide the said issue and that the same having been decided in his favour, the Civil Court is barred from entertaining any further proceedings.</b></p><p><b>47.<span style=\"white-space:pre\">	</span>When such a prayer has been made by the plaintiffs with regard to there being no jurisdiction or power vested in the tribunal to pass an order granting occupancy rights in favour of defendant No.1 and that the order of the tribunal is null and void and the same being not binding on the plaintiffs, it is incumbent on the trial Court to consider it as an issue and decide the same in accordance with law.</b></p><p><b>49.<span style=\"white-space:pre\">	</span>Under the above said facts, circumstances and discussions, I am of the opinion that the trial Judge has not applied his mind and has mis-directed himself in only considering the aspect of bar of jurisdiction of the Civil Court under Section 132(2) of the Act, but has failed to appreciate the contentions raised by the plaintiffs with regard to other aspects enumerated in the plaint averments and so also with regard to issue No.1 by the Court itself.</b></p><p><b>50.<span style=\"white-space:pre\">	</span>I am of the considered view that the learned trial Judge ought to have considered these aspects and passed a detailed order rather than merely dismissing the suit on the ground of bar of jurisdiction under Section 132(2) of the Act. Hence, this is a fit case to be remanded back to the trial Court for adjudication of the matter afresh to consider and decide the issues framed by the trial Court in detail, notwithstanding the specific aspect of jurisdiction of the tribunal in deciding the application for grant of occupancy rights as against the right already decided by the Special Deputy Commissioner of Inams Abolition as contended by the plaintiffs.</b></p><p><b>51.<span style=\"white-space:pre\">	</span>In view of the fact that the subject matter of the present appeal is on the substantial questions of law with regard to whether is there any patent illegality or perversity in the impugned order? As stated earlier, this Court deliberately abstains from going into merits of the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">matter and neither is any opinion expressed and if any stray sentences are mentioned, the same shall not influence the mind of the trial Court in deciding the matter. Accordingly, the substantial questions of law at Nos.1 and 2 are answered in the affirmative.</b></p><p><b>52.<span style=\"white-space:pre\">	</span>It is also incumbent upon the trial Court to have pronounced judgment on all issues as contemplated under Order XIV Rule 2 of CPC and not limiting itself to only the preliminary issue of bar of maintainability of the suit, considering the specific facts and circumstances of this case.</b></p><p><b>Accordingly, I pass the following:</b></p><p><b>ORDER</b></p><p><b>i) The appeal is allowed-in-part;</b></p><p><b>ii)The matter is remanded back to the trial Court for fresh consideration;</b></p><div><br></div>', '559e06c06271315af3032611fd196f4f.jpg', '334c6b7eb22674b0ef9fe78a8b327419.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-18', 1, '', '', '2022-05-18 16:40:14', '2022-05-18 16:40:14'),
(1691, 'er9u3dZ69aeHLTU0AZeWF3OQf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Arbitrary rowdy sheeting affects liberty, privacy and reputation of citizens.\'\' Karnataka High Court issues exhaustive guidelines.', '<p><b>B.S. Prakash vs The State of Karnataka and others. <br>Writ Petition 4504 of 2022 and connected matters decided on 22 April 2022<br>Justice Krishna S Dixit</b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(i) Petitioners inter alia argue that there exists no discernable procedure for entering of their names to the Rowdy Registers maintained in the jurisdictional police stations and that there is no procedural & substantive safeguarding of victims of rowdy sheeting, which has many implications on their liberty, privacy & reputation.  </span><br></b></p><p><b>(iii) On  request  of  the  Court,  learned  Amicus  Curiae,  Mr.Sridhar Prabhu had appreciably undertaken a comparative  study of Criminal Information Practices prevalent in  our country, and in the United States & United Kingdom. A more local comparison was also made by referring to ‘Maintenance of Police Station Records by Delhi Police’. </b></p><p><b>(d) No reasonable person can deny that citizens seek protection of their rights & liberties more than ever before, banking upon constitutional guarantees. Conversely, the State functionaries claim more authority to restrict the rights & liberties of the citizens, as of necessity and in the larger public interest. This has been the case all throughout and the conflict goes on, whatever be the jurisdictions. The Writ Courts being  the custodians of the Constitution have to balance these competing claims, keeping in view all pragmatic considerations. </b></p><p><b>(iv) The use of ‘rowdy sheets’ may find direct lineage to the precept of  ‘goondas’. The word ‘goonda’ is reported to have been first used in the Bengal Goonda Act of 1926. It defined a goonda to include a ‘hooligan or other rough.’ The ‘goondas’ included people with prior convictions, people suspected of committing offences and political activists. The Act required the Police to maintain files of goondas in their jurisdictions. Other States too have Goonda Acts as well, which inter alia provide for externment of goondas by following a kind of quasi-judicial procedure which then did not approximate to ‘due process’. Order 1059 of the Police Manual defines ‘a rowdy’ as a goonda and includes a hooligan, rough, vagabond or any other person, who is dangerous to the public peace and tranquillity. </b></p><p><b>In the above circumstances, all these Writ Petitions are disposed off prescribing the following guidelines for supplementing the existing position of law relating to Rowdy Sheeting & History Sheeting:</b></p><p><b>GUIDELINES FOR ROWDY/HISTORY SHEETING:</b></p><p><b>i. Before entering the name of an individual to the Register of Rowdies, the jurisdictional police shall collect and collate the material information concerning him and frame the proposal for registration on that basis.</b></p><p><b>ii. A brief proposal notice shall be sent to the individual concerned in a sealed cover with an option to submit his representation within two weeks as to why his name should not be registered as a rowdy. However, there is no need to afford a personal hearing. In exceptional cases notice may be dispensed with for reasons to be recorded in the Register of Rowdies.</b></p><p><b>iii. In terms of Clause (5), Order 1059 of the Manual, the Superintendent of Police or the Sub – Divisional Police Officer shall not accord approval for entering the name of individual concerned to the Register of Rowdies without calling for records and objectively considering the same. He shall briefly record his reasons for according the approval and mark a copy thereof to the individual forthwith, with a mention that he may petition the Police Complaints Authority, against the same.</b></p><p><b>iv. The jurisdictional Police shall compulsorily once in two years, undertake a periodic review of entries in the Register of Rowdies suo motu, as provided under Clause (2), Order 1057 of the Manual. However, it is open to the aggrieved, to make a representation at any time after one year of registration, seeking deletion of name from the Rowdy Register on the basis of changed circumstances such as rectitude, good conduct, social/community service, etc.</b></p><p><b>v. The representation for review shall be considered by the jurisdictional Police at the initial level within a period of 30 days, during which necessary inputs may be obtained through the available sources as to merits of the claim. The recommendation shall be sent to the jurisdictional Superintendent of Police or the Sub – Divisional Police Officer, within 15 days along with the representation & the material collected thereon. Such recommendation along with the result of consideration of the representation shall be communicated to the individual concerned within next 15 days.</b></p><p><b>vi. Any individual aggrieved by the rejection of his representation or continuation of his name in  the Register may petition to the Police Complaints Authority ordinarily within 30 days. However, no personal hearing shall avail. The petition shall be disposed off by recording reasons within an outer limit of 60 days, after  considering the material on record or the fresh inputs that may be requisitioned, by the authority.</b></p><p><b>vii. The entire process of Rowdy/History Sheeting from the stage of issuance of proposal notice as specified above, up to the issuance of the orders on the petition if any to the Police Complaints Authority, shall be done only in a sealed cover procedure and that nothing therein shall be disclosed nor made available to anyone, except to the aggrieved, nor any Right To Information (RTI) application shall be entertained in this regard.</b></p><p><b>viii. The violation of these guidelines shall constitute a major misconduct and an adverse entry on proof thereof shall  be made by the Disciplinary Authority in the Service Register of the erring official after hearing him and a copy thereof shall be marked to the victim of Rowdy Register/History Sheet, without brooking any delay.</b></p><p><b>ix. Whatever guidelines herein above laid down shall be applicable to the case of History Sheeters as well, mutatis mutandis and subject to the provisions of Karnataka Police Manual, 1965.</b></p><p><b>This court places on record its deep appreciation for the assistance rendered by Amicus Curiae, Mr. Sridhar Prabhu,  Senior Advocates, Mr. Sandesh Chouta, Mr.  Prasanna  Kumar, and AGA Mr. Vinod Kumar. It also places on record its appreciation for the able assistance and research rendered by  its official Law Clerk cum Research Assistant, Mr. Faiz Afsar Sait.</b></p><p><b><br></b></p><p><b>For information and needful action, the Registry is  directed to send by speed post a copy of this order to:</b></p><p><b>(i)<span style=\"white-space:pre\">	</span>The Chief Secretary, Government of Karnataka, Bangalore.</b></p><p><b><br></b></p><p><b>(ii)<span style=\"white-space:pre\">	</span>The Director General and Inspector General of Police, Government of Karnataka, Bangalore,</b></p><div><br></div>', 'd19b37eaf7f88884cc6646ec1800a5d3.jpg', 'a64e8ced5e4b74236277d7fce62c372d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-18', 1, '', '', '2022-05-18 18:36:00', '2022-05-18 18:38:09'),
(1692, 'Zve6Y66D7jmAg0DwH4jw7OWBY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Daily waged employees working in the local bodies like Zilla Panchayats, on their regularization, are entitled for payment of gratuity from the date of their initial appointment. Karnataka High Court.', '<p><b>Chief Executive Officer vs K.V. Puttaraju and others.&nbsp;<br>Writ Petition 46017 of 2017 decided on 12 May 2022<br>Justice K.S. Mudagal&nbsp;</b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>The above petitions are filed seeking quashing of the orders of the Controlling Authority/Appellate Authority under the Payment of Gratuity Act, 1972 (‘the Act’ for short) awarding gratuity amount claimed by respondent No.1 with interest at 10% per annum.</b></span></p><p><b>2. The petitioners are the Government bodies being part of the Department of Panchayat Raj. Respondent No.1 in the above cases were initially employed as daily wage workers. The Government by its order regularized the services of respondent No.1 with certain cut off dates.</b></p><p><b>3. After such retirement, they submitted the applications before the Controlling Authority claiming that they were entitled to gratuity from the date of their induction as daily wage workers.&nbsp;</b></p><p><b>12. In Municipal Corporation of Delhi v. Dharam Prakash Sharma2 relied on by learned Counsel for the petitioners themselves, the Hon’ble Supreme Court held that mere fact that the gratuity is provided for under the Pension Rules will not disentitle the employees to get the payment of gratuity under Payment of Gratuity Act. Therefore the aforesaid two judgments in no way advance the case of the petitioners.</b></p><p><b>13. In Municipal Corpn. Of Delhi v. Dharam Prakash Sharma3, the Hon’ble Supreme Court held that notwithstanding separate pension rules, MCD employees were entitled to the benefits under the provisions of 1972 Act in view of overriding effect of the Act as per Section 14 of the said Act.</b></p><p><b>17. Further the two Division Benches of this Court in case of the Assistant Executive Engineer, Public Works Department v. Sri Putta and others6 and Smt.Mahadevamma&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">v. Assistant Executive Engineer &amp; ors.7 held that regularized employees of the departments of PWD and irrigation of the State Government are entitled to the benefit of gratuity under the Act.</span></b></p><p><b>19. In the light of the aforesaid judgments of the Hon’ble Supreme Court in Netram Sahu’s case referred to supra and the judgments of the Division Bench of this Court referred to supra, there is no merit in the contention that on their regularization into service, respondent No.1 loose benefit of the Act. The Controlling Authority considering the admissions of the petitioners’ witness regarding date of employment of respondent No.1 as daily wage workers, their regularization and non payment of gratuity for the period they&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">worked as daily wage workers and also referring to the judgments of this Court, rightly rejected the contention of the petitioners and passed the impugned orders.</span></b></p><p><b>22. Therefore the petitions are partly allowed. The impugned orders regarding payment of gratuity are confirmed. The petitioners are jointly and severally liable to pay the gratuity amount to respondent No.1 with interest thereon at 10% per annum from the date of the applications till the date of deposit.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '5447b1d334440b90120a4637ad2bba36.jpg', '0e75bee98b8c5f8f954b3ba4b8ef5d75.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-18', 1, '', '', '2022-05-18 19:15:01', '2022-05-18 19:15:01'),
(1693, 'yfHyrXJRIq4Ch7iJ2jpi2UuaI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sale under SARFAESI is complete only after full sale consideration is paid. If balance amount is paid/accepted after commencement of CIRP, the sale is hit by Section 14(1)(c) of the IBC. Supreme Court. ', '<p>CIVIL&nbsp;APPEAL&nbsp;NO.&nbsp;4750&nbsp;OF&nbsp;2021\r\nINDIAN&nbsp;OVERSEAS&nbsp;BANK &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;...APPELLANT(S)\r\nVERSUS\r\nM/S&nbsp;RCM&nbsp;INFRASTRUCTURE&nbsp;LTD.\r\nAND&nbsp;ANOTHER<b><br></b></p><p>[L.&nbsp;NAGESWARA&nbsp;RAO]\r\n…….........................J.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;\r\n[B.R.&nbsp;GAVAI]</p><p><b>1. This&nbsp; &nbsp;appeal&nbsp; &nbsp;challenges&nbsp; &nbsp;the&nbsp; &nbsp;judgment&nbsp; &nbsp;dated&nbsp; &nbsp;26th March 2021 passed by the National Company Law Appellate Tribunal, Principal Bench, New Delhi in Company Appeal (AT) (Insolvency) No. 736 of 2020, thereby dismissing the appeal filed by the present appellant­ Indian&nbsp; &nbsp;Overseas&nbsp; &nbsp;Bank,&nbsp; &nbsp;which&nbsp; &nbsp;was&nbsp; &nbsp;in&nbsp; &nbsp;turn&nbsp; &nbsp;filed challenging the order dated 15th&nbsp; July 2020 passed by the National&nbsp; &nbsp;Company&nbsp; &nbsp;Law&nbsp; &nbsp;Tribunal,&nbsp; &nbsp;Hyderabad&nbsp; &nbsp;Bench­, Hyderabad&nbsp; &nbsp;in&nbsp; &nbsp;I.A. No.832 of 2019 in&nbsp; C.P. (IB) No. 601/10/HDB/2018, vide which the learned NCLT had allowed the application filed by the respondent No.2 herein, former Managing Director of the respondent&nbsp; &nbsp;No.1&nbsp; &nbsp;herein­ M/s&nbsp; &nbsp;RCM&nbsp; &nbsp;Infrastructure&nbsp; &nbsp;Ltd. and set aside the sale of the assets of the Corporate Debtor&nbsp;<br></b></p><p><b>24. It is thus clear that after the CIRP is initiated, there is moratorium for any action to foreclose, recover or enforce any&nbsp; security&nbsp; &nbsp;interest&nbsp; &nbsp;created&nbsp; &nbsp;by&nbsp; &nbsp;the&nbsp; Corporate&nbsp; Debtor&nbsp; &nbsp;in respect&nbsp; &nbsp;of&nbsp; &nbsp;its&nbsp; &nbsp;property&nbsp; &nbsp;including&nbsp; &nbsp;any&nbsp; &nbsp;action&nbsp; &nbsp;under&nbsp; the SARFAESI Act.&nbsp; It is clear that once the CIRP is commenced, there&nbsp; &nbsp;is&nbsp; &nbsp;complete&nbsp; &nbsp;prohibition&nbsp; for&nbsp; &nbsp;any&nbsp; &nbsp;action&nbsp; &nbsp;to&nbsp; foreclose, recover&nbsp; &nbsp;or&nbsp; &nbsp;enforce&nbsp; &nbsp;any&nbsp; &nbsp;security&nbsp; &nbsp;interest&nbsp; &nbsp;created&nbsp; &nbsp;by&nbsp; &nbsp;the Corporate&nbsp; &nbsp;Debtor&nbsp; &nbsp;in&nbsp; &nbsp;respect&nbsp; &nbsp;of&nbsp; &nbsp;its&nbsp; property.&nbsp; &nbsp;The&nbsp; &nbsp;words “including&nbsp; &nbsp;any&nbsp; &nbsp;action&nbsp; &nbsp;under&nbsp; &nbsp;the&nbsp; &nbsp;SARFAESI&nbsp; &nbsp;Act”&nbsp; &nbsp;are significant.&nbsp; The legislative intent is clear that after the CIRP is&nbsp; &nbsp;initiated,&nbsp; &nbsp;all&nbsp; &nbsp;actions&nbsp; &nbsp;including&nbsp; &nbsp;any&nbsp; &nbsp;action&nbsp; under&nbsp; &nbsp;the SARFAESI Act to foreclose, recover or enforce any security interest are prohibited. </b></p><p><b>26. It could thus be seen that the provisions of the IBC shall&nbsp; &nbsp;have&nbsp; &nbsp;effect,&nbsp; notwithstanding&nbsp; &nbsp;anything&nbsp; &nbsp;inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. </b></p><p><b>27. It has been consistently held by this Court that the IBC is a complete Code in itself and in view of the provisions of Section 238 of the IBC, the provisions of the IBC would prevail&nbsp; &nbsp;notwithstanding&nbsp; &nbsp;anything&nbsp; &nbsp;inconsistent&nbsp; &nbsp;therewith contained in any other law for the time being in force.&nbsp; &nbsp;A reference in this respect could be placed on the judgments of this Court in the cases of Innoventive Industries Limited v. ICICI&nbsp; &nbsp;Bank&nbsp; &nbsp;and&nbsp; &nbsp;Another (2018) 1 SCC 407 ,&nbsp; Principal&nbsp; &nbsp;Commissioner&nbsp; &nbsp;of Income&nbsp; &nbsp;Tax&nbsp; &nbsp;v.&nbsp; &nbsp;Monnet&nbsp; &nbsp;Ispat&nbsp; &nbsp;and&nbsp; &nbsp;Energy&nbsp; &nbsp;Limited (2018) 18 SCC 786&nbsp; Ghanashyam Mishra and Sons Private Limited through the&nbsp; &nbsp;Authorised&nbsp; &nbsp;Signatory&nbsp; &nbsp;v.&nbsp; &nbsp;Edelweiss&nbsp; &nbsp;Asset Reconstruction&nbsp; &nbsp;Company&nbsp; &nbsp;Limited&nbsp; &nbsp;through&nbsp; &nbsp;the&nbsp; &nbsp;Director and Others (2021) 9 SCC 657. </b></p><p><b>28. It is the contention of the appellant Bank that the sale in question was complete on its confirmation on 13th December 2018 and as such, the admission of the petition on 3 rd January 2019 by the learned NCLT would not affect the said sale.&nbsp; Relying on the provisions of Section 54 of the TP Act,&nbsp; &nbsp;the&nbsp; &nbsp;learned&nbsp; &nbsp;Solicitor&nbsp; &nbsp;General&nbsp; &nbsp;submitted&nbsp; &nbsp;that&nbsp; &nbsp;merely because a part of the payment was received subsequently after initiation of CIRP, it will not deprive the appellant Bank from receiving the said money in pursuance to the sale which has already been completed.&nbsp; &nbsp;A reliance in this respect is placed on various judgments of this Court. </b></p><p><b>29. Insofar as the judgment of this Court in the case of Vidhyadhar (supra) is concerned, no doubt that it has been held that even if the full price of the property has not been paid, the transaction of the sale will take effect and the title would pass on that transaction.&nbsp; This Court has further held that the real test is the intention of the parties.&nbsp; It has been held that the parties must intend to transfer ownership of the property and that they must also intend that the price would be paid either in praesenti or in future.&nbsp; However, it is to be noted that in the said case, the defendant No.2 had not only executed the sale deed in favour of the plaintiff but had presented it for registration, admitted its execution before the Sub­Registrar before whom the remaining part of the sale consideration was paid and thereafter, the document was registered. </b></p><p><b>34. Undisputedly,&nbsp; &nbsp;in&nbsp; &nbsp;the&nbsp; &nbsp;present&nbsp; &nbsp;case,&nbsp; &nbsp;the&nbsp; &nbsp;balance amount&nbsp; has&nbsp; been&nbsp; accepted&nbsp; by the appellant&nbsp; Bank on 8th March&nbsp; &nbsp;2019.&nbsp; &nbsp; &nbsp;The&nbsp; &nbsp;sale&nbsp; &nbsp;under&nbsp; &nbsp;the&nbsp; &nbsp;statutory&nbsp; &nbsp;scheme&nbsp; &nbsp;as contemplated under Rules 8 and 9 of the said Rules would stand completed only on 8th&nbsp; March 2019.&nbsp; &nbsp;Admittedly, this date falls much after 3rd&nbsp; January 2019, i.e., on which date CIRP commenced and moratorium was ordered.&nbsp; As such, we are unable to accept the argument on behalf of the appellant Bank that the sale was complete upon receipt of the part payment. </b></p><p><b>35. In view of the provisions of Section 14(1)(c) of the IBC, which have overriding effect over any other law, any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the SARFAESI Act is prohibited. We are of the view that the appellant Bank could not have continued the proceedings under the SARFAESI Act once the CIRP was initiated and the moratorium was ordered. </b></p><p><b>38. In the result, the present appeal is dismissed.</b><br></p>', 'a007413ccbead03f855abbabdc50e9d9.jpeg', '7337422c501020aa7e35ac2bdf5693e6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-18', 1, '', '', '2022-05-19 02:53:03', '2022-05-19 02:53:03');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1694, 'YMy25BjfW11mfX2rvP9MRgHAz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Remission of sentence. Recommendation/advice of the State Cabinet is binding on the Governor and he cannot refer such recommendation to the President of India for approval. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>A.G. Perarivalan Vs State, Through Superintendent of Police CBI/MMDA, Chennai, Tamil Nadu and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 833-834 of 2022 decided on 18 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B.R. Gavai and Justice A.S. Bopanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Appellant is accused No.18 in Crime No. 329 of 1991\r\nregistered at Sriperumbudur Police Station for assassination\r\nof Shri Rajeev Gandhi, former Prime Minister of India, on\r\n21.05.1991. The Appellant was convicted for offences under\r\nthe Indian Penal Code, 1860 (for short, ‘IPC’), the Arms Act,\r\n1951, the Explosive Substances Act, 1908, the Passport Act,\r\n1967, the Foreigners Act, 1946, the Indian Wireless&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Telegraphy Act, 1933 and the Terrorist and Disruptive\r\nActivities (Prevention) Act, 1987 (for short, ‘TADA’). He was\r\nsentenced to death by the designated TADA Court. This\r\nCourt, by a judgment dated 11.05.1999, upheld the\r\nconviction and sentence imposed on the Appellant.\r\nHowever, the conviction and sentence under the TADA were\r\nset aside. The review petition filed by the Appellant was\r\ndismissed by an order dated 08.10.1999. The Appellant,\r\nalong with three others, filed mercy petitions before the\r\nGovernor of Tamil Nadu under Article 161 of the Constitution\r\nof India, which were rejected on 27.10.1999. The mercy\r\npetition of the Appellant was reconsidered by the Governor,\r\npursuant to an order passed by the High Court of Tamil Nadu,\r\nand was rejected again on 25.04.2000. The Appellant filed a\r\nmercy petition before the President of India under Article 72\r\nof the Constitution, which was also rejected on 12.08.2011.\r\nAggrieved thereby, a writ petition was filed in the High Court\r\nof Madras. The said writ petition filed by the Appellant\r\nbefore the High Court of Madras was transferred to this Court\r\nby an order dated 01.05.2012. Thereafter, the death\r\nsentence of the Appellant was commuted to imprisonment\r\nfor life by this Court on 18.02.2014.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. The only point that requires to be considered in these\r\nAppeals is the correctness of the reference made by the\r\nGovernor to the President of India on 25.01.2021, without\r\ntaking a decision on the recommendation made by the State\r\nCabinet on remission of the sentence of the Appellant. We\r\ndo not accept the preliminary objection of the learned\r\nAdditional Solicitor General that this point is not within the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">scope of this appeal. From the facts mentioned above, it is\r\nclear that these Appeals are filed against orders passed by\r\nthe High Court refusing to entertain petitions filed by the\r\nAppellant, one of which was against a judgment of the\r\ndesignated TADA Court rejecting the request for effective\r\nmonitoring of the investigation into the remaining aspects of\r\nthis case. This Court had issued notice in Cri. M.P. No.\r\n118421 of 2017 filed by the Appellant seeking suspension of\r\nsentence, wherein it was stated that despite the State\r\nGovernment having already proposed premature release, the\r\nCentral Government had not taken any decision on the fate\r\nof the Appellant till 2017, as required pursuant to the\r\njudgment in Sriharan (supra). Further, during the pendency\r\nof these Appeals, the petition preferred by the Appellant for\r\nremission was favourably considered by the State Cabinet on\r\n09.09.2018 but the Governor did not take any decision on\r\nthe said recommendation. Ultimately, the Governor without\r\ntaking a decision on the recommendation made by the State\r\nCabinet, referred the matter to the President of India. In view\r\nof the importance of the issue that arises for consideration of\r\nthis Court, we refuse to entertain the objection of the learned\r\nAdditional Solicitor General and proceed to determine the\r\npoint that is raised by the Appellant.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. The power to grant pardons, reprieves, respites or\r\nremissions of punishment or to suspend, remit or commute\r\nthe sentence of any person convicted of an offence against\r\nany law related to which the executive power of the State\r\nextends is vested in the Governor under Article 161 of the\r\nConstitution. Article 162 makes it clear that the executive\r\npower of the State shall extend to matters with respect to\r\nwhich the Legislature of the State has power to make laws.\r\nArticle163 of the Constitution provides that there shall be a\r\nCouncil of Ministers with the Chief Minister at the head to aid\r\nand advise the Governor in the exercise of his functions,\r\nexcept in so far as he is by or under this Constitution\r\nrequired to exercise his functions or any of them in his\r\ndiscretion.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. The limits within which the executive Government can\r\nfunction under the Indian Constitution can be ascertained\r\nwithout much difficulty by reference to the form of the\r\nexecutive which our Constitution has set up. Our\r\nConstitution, though federal in its structure, is modelled on\r\nthe British parliamentary system where the executive is\r\ndeemed to have the primary responsibility for the\r\nformulation of governmental policy and its transmission into&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">law though the condition precedent to the exercise of this\r\nresponsibility is its retaining the confidence of the legislative\r\nbranch of the State. The Governor occupies the position of\r\nthe head of the executive in the State but it is virtually the\r\nCouncil of Ministers in each State that carries on the\r\nexecutive Government. In the Indian Constitution, therefore,\r\nwe have the same system of parliamentary executive as in\r\nEngland and the Council of Ministers consisting, as it does, of\r\nthe members of the legislature is, like the British Cabinet, “a\r\nhyphen which joins, a buckle which fastens the legislative\r\npart of the State to the executive part”.3\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. Under the Cabinet system of Government as embodied\r\nin our Constitution the Governor is the constitutional or\r\nformal head of the State and he exercises all his powers and\r\nfunctions conferred on him by or under the Constitution on\r\nthe aid and advice of his Council of Ministers, save in spheres\r\nwhere the Governor is required by or under the Constitution\r\nto exercise his functions in his discretion. Wherever the\r\nConstitution requires the satisfaction of the President or the\r\nGovernor for the exercise of any power or function by the\r\nPresident or the Governor, as the case may be, as for\r\nexample in Articles 123, 213, 311(2) proviso (c), 317, 352(1)&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">356 and 360, the satisfaction required by the Constitution is\r\nnot the personal satisfaction of the President or of the\r\nGovernor but is the satisfaction of the President or of the\r\nGovernor in the constitutional sense under the Cabinet\r\nsystem of Government. It is the satisfaction of the Council of\r\nMinisters on whose aid and advice the President or the\r\nGovernor generally exercises all his powers and functions.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 16. Even though the Governor may be authorised to\r\nexercise some functions, under different provisions of the\r\nConstitution, the same are required to be exercised only on\r\nthe basis of the aid and advice tendered to him under Article\r\n163, unless the Governor has been expressly authorised, by\r\nor under a constitutional provision, to discharge the function\r\nconcerned, in his own discretion. </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">17. A Constitution Bench of this Court in Maru Ram v.\r\nUnion of India\r\n6\r\n authoritatively summed up the position with\r\nrespect to Article 161, as reproduced hereinafter: <br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“…the\r\nGovernor is the formal head and sole repository of the\r\nexecutive power but is incapable of acting except on, and\r\naccording to, the advice of his Council of Ministers. The\r\nupshot is that the State Government, whether the Governor&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">likes it or not, can advice and act under Article 161, the\r\nGovernor being bound by that advice. The action of\r\ncommutation and release can thus be pursuant to a\r\ngovernmental decision and the order may issue even without\r\nthe Governor\'s approval although, under the Rules of\r\nBusiness and as a matter of constitutional courtesy, it is\r\nobligatory that the signature of the Governor should\r\nauthorise the pardon, commutation or release”.\r\n</span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>18. By following the dictum in Samsher Singh v. State of\r\nPunjab , this Court in Maru Ram (supra) further held that in\r\nthe matter of exercise of the powers under Articles 72 and\r\n161, the two highest dignitaries in our constitutional scheme\r\nact and must act not on their own judgment but in\r\naccordance with the aid and advice of the ministers. The\r\nconstitutional conclusion is that the Governor is but a\r\nshorthand expression for the State Government.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">19. The law laid down by this Court, as detailed above, is\r\nclear and explicit. The advice of the State Cabinet is binding\r\non the Governor in matters relating to commutation /\r\nremission of sentences under Article 161. No provision under\r\nthe Constitution has been pointed out to us nor any\r\nsatisfactory response tendered as to the source of the&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Governor’s power to refer a recommendation made by the\r\nState Cabinet to the President of India. In the instant case,\r\nthe Governor ought not to have sent the recommendation\r\nmade by the State Cabinet to the President of India. Such\r\naction is contrary to the constitutional scheme elaborated\r\nabove. It is relevant to point out that the recommendation\r\nmade by the State Cabinet was on 09.09.2018, which\r\nremained pending before the Governor for almost two and a\r\nhalf years without a decision being taken. It was only when\r\nthis Court started enquiring about the reason for the decision\r\nbeing delayed, the Governor forwarded the recommendation\r\nmade by the State Government for remission of the\r\nAppellant’s sentence to the President of India.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20. We are fully conscious of the immunity of the Governor\r\nunder the Constitution with respect to the exercise and\r\nperformance of the powers and duties of his office or for any\r\nact done or purported to be done by him in the exercise and\r\nperformance of such powers and duties. However, as held by\r\nthis Court in numerous decisions, this Court has the power of\r\njudicial review of orders of the Governor under Article 161,\r\nwhich can be impugned on certain grounds. Non-exercise of\r\nthe power under Article 161 is not immune from judicial\r\nreview, as held by this Court in Epuru Sudhakar v. Govt.&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">f A.P.&nbsp; Given petitions under Article 161 pertain to the\r\nliberty of individuals, inexplicable delay not on account of the\r\nprisoners is inexcusable as it contributes to adverse physical\r\nconditions and mental distress faced by a prisoner, especially\r\nwhen the State Cabinet has taken a decision to release the\r\nprisoner by granting him the benefit of remission /\r\ncommutation of his sentence.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. In conclusion, we have summarised our findings below:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(a) The law laid down by a catena of judgments of this Court\r\nis well-settled that the advice of the State Cabinet is\r\nbinding on the Governor in the exercise of his powers\r\nunder Article 161 of the Constitution.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(b) Non-exercise of the power under Article 161 or\r\ninexplicable delay in exercise of such power not\r\nattributable to the prisoner is subject to judicial review\r\nby this Court, especially when the State Cabinet has\r\ntaken a decision to release the prisoner and made\r\nrecommendations to the Governor to this effect.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(c) The reference of the recommendation of the Tamil Nadu\r\nCabinet by the Governor to the President of India two\r\nand a half years after such recommendation had been\r\nmade is without any constitutional backing and is\r\ninimical to the scheme of our Constitution, whereby “the\r\nGovernor is but a shorthand expression for the State\r\nGovernment” as observed by this Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(d) The judgment of this Court in M.P. Special Police\r\nEstablishment (supra) has no applicability to the facts\r\nof this case and neither has any attempt been made to\r\nmake out a case of apparent bias of the State Cabinet or&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the State Cabinet having based its decision on irrelevant\r\nconsiderations, which formed the fulcrum of the said\r\njudgment.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(e) The understanding sought to be attributed to the\r\njudgment of this Court in Sriharan (supra) with respect\r\nto the Union Government having the power to remit /\r\ncommute sentences imposed under Section 302, IPC is\r\nincorrect, as no express executive power has been\r\nconferred on the Centre either under the Constitution or\r\nlaw made by the Parliament in relation to Section 302. In\r\nthe absence of such specific conferment, it is the\r\nexecutive power of the State that extends with respect\r\nto Section 302, assuming that the subject-matter of\r\nSection 302 is covered by Entry 1 of List III.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(f) Taking into account the Appellant’s prolonged period of\r\nincarceration, his satisfactory conduct in jail as well as\r\nduring parole, chronic ailments from his medical records,\r\nhis educational qualifications acquired during\r\nincarceration and the pendency of his petition under\r\nArticle 161 for two and a half years after the\r\nrecommendation of the State Cabinet, we do not\r\nconsider it fit to remand the matter for the Governor’s\r\nconsideration. In exercise of our power under Article 142&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the Constitution, we direct that the Appellant is\r\ndeemed to have served the sentence in connection with\r\nCrime No. 329 of 1991. The Appellant, who is already on\r\nbail, is set at liberty forthwith. His bail bonds are\r\ncancelled.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">30. The Appeals are disposed of accordingly.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b5d1a84862aa9882ea9a56379c1651ac.jpeg', 'f5bb3bf893420ff95791424b272c0a0b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-19', 1, '', '', '2022-05-19 17:43:37', '2022-05-19 07:53:16'),
(1695, 'Q1XK1ExxvHuW9m7bNln9tlIsl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Award of Lok Adalat cannot be reversed or set aside in a writ petition without setting aside the facts recorded in such award as being fraudulent arrived at. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K. Srinivasappa and others Vs M. Mallamma and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3486-3488 of 2022 decided on 18 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>These appeals assail the judgment and order dated 17th April,\r\n2015, passed by the High Court of Karnataka at Bengaluru in Writ\r\nPetition nos.20607, 20608 and 20609 of 2013, whereby the High\r\nCourt disposed of the Writ Petitions filed by plaintiff nos. 4 to 6 and\r\nhas recalled order dated 7th July, 2012 by which the compromise had\r\nbeen recorded by the Lok Adalat, between the parties to Original\r\nSuit No. 876 of 2004, being a suit for partition and separate\r\npossession instituted by plaintiff nos. 1 to 6 on the file of the Court\r\nof the Civil Judge (Junior Division), Rural District, Bangalore.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. Section 21 of the Legal Services Authorities Act, 1987 equates\r\nan award of the Lok Adalat, to a decree of a Civil Court and imputes\r\nan element of finality to an award of compromise passed by the Lok\r\nAdalat. When the Lok Adalat disposes cases in terms of a\r\ncompromise arrived at between the parties to a suit, after following\r\nprinciples of equity and natural justice, every such award of the Lok\r\nAdalat shall be deemed to be a decree of a Civil Court and such\r\ndecree shall be final and binding upon the parties. Given the element\r\nof finality attached to an award of the Lok Adalat, it also follows that\r\nno appeal would lie, under Section 96 of the CPC against such award,\r\nvide P.T. Thomas vs. Thomas Job - [(2005) 6 SCC 478].</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. While we recognise that a Writ Petition would be maintainable\r\nagainst an award of the Lok Adalat, especially when such writ\r\npetition has been filed alleging fraud in the manner of obtaining the\r\naward of compromise, a writ court cannot, in a casual manner, de\r\nhors any reasoning, set aside the order of the Lok Adalat. The award\r\nof a Lok Adalat cannot be reversed or set aside without setting aside\r\nthe facts recorded in such award as being fraudulent arrived at.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. The Latin maxim “cessante ratione legis cessat ipsa lex”\r\nmeaning “reason is the soul of the law, and when the reason of any\r\nparticular law ceases, so does the law itself” vide H H Sri Swamiji\r\nof Sri Admar Mutt vs. the Commissioner, Hindu Religious and\r\nCharitable Endowments Dept.– [(1979) 4 SCC 642], is also\r\napposite.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>31. On the aspect of the duty to accord reasons for a decision\r\narrived at by a court, or for that matter, even a quasi-judicial\r\nauthority, it would be useful to refer to a judgment of this Court in\r\nKranti Associates Private Limited & Anr. Vs. Masood Ahmed\r\nKhan & Ors. – (2010) 9 SCC 496, wherein after referring to a\r\nnumber of judgments, this Court summarised at paragraph 47 of the\r\njudgment the law on the point. The relevant principles for the\r\npurpose of this case are extracted as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(a) Insistence on recording of reasons is meant to serve the\r\nwider principle of justice that justice must not only be\r\ndone it must also appear to be done as well.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(b) Recording of reasons also operates as a valid restraint\r\non any possible arbitrary exercise of judicial and quasijudicial or even administrative power.\r\n(c) Reasons reassure that discretion has been exercised by\r\nthe decision-maker on relevant grounds and by\r\ndisregarding extraneous considerations.\r\n(d) Reasons have virtually become as indispensable a\r\ncomponent of a decision-making process as observing\r\nprinciples of natural justice by judicial, quasi-judicial and\r\neven by administrative bodies.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(e) Reasons facilitate the process of judicial review by\r\nsuperior courts.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(f) The ongoing judicial trend in all countries committed to\r\nrule of law and constitutional governance is in favour of\r\nreasoned decisions based on relevant facts. This is\r\nvirtually the lifeblood of judicial decision-making\r\njustifying the principle that reason is the soul of justice.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(g) Judicial or even quasi-judicial opinions these days can be\r\nas different as the judges and authorities who deliver\r\nthem. All these decisions serve one common purpose\r\nwhich is to demonstrate by reason that the relevant\r\nfactors have been objectively considered. This is\r\nimportant for sustaining the litigants\' faith in the justice\r\ndelivery system.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(h) Insistence on reason is a requirement for both judicial\r\naccountability and transparency.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) If a judge or a quasi-judicial authority is not candid\r\nenough about his/her decision-making process then it is\r\nimpossible to know whether the person deciding is\r\nfaithful to the doctrine of precedent or to principles of\r\nincrementalism.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(j) Reasons in support of decisions must be cogent, clear\r\nand succinct. A pretence of reasons or “rubber-stamp <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reasons” is not to be equated with a valid decisionmaking process.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(k) It cannot be doubted that transparency is the sine qua\r\nnon of restraint on abuse of judicial powers.\r\nTransparency in decision-making not only makes the\r\njudges and decision-makers less prone to errors but also\r\nmakes them subject to broader scrutiny. (See David\r\nShapiro in Defence of Judicial Candor [(1987) 100\r\nHarvard Law Review 731-37)</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(l) In all common law jurisdictions judgments play a vital\r\nrole in setting up precedents for the future. Therefore,\r\nfor development of law, requirement of giving reasons\r\nfor the decision is of the essence and is virtually a part\r\nof “due process”.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(m) The requirement to record reasons emanates from the\r\nbroad doctrine of fairness in decision-making i.e.\r\nadequate and intelligible reasons must be given for\r\njudicial decisions</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Though the aforesaid judgment was rendered in the context of\r\na dismissal of a revision petition by a cryptic order by the National\r\nConsumer Disputes Redressal Commission, reliance could be placed\r\non the said judgment on the need to give reasons while deciding a\r\nmatter particularly as it arises in the instant case.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. In Pushpa Devi Bhagat (dead) through LR. Sadhna Rai\r\nvs. Rajinder Singh and Ors. – [(2006) 5 SCC 566], this Court\r\nheld that since no appeal would lie against a compromise decree,\r\nthe only option available to a party seeking to avoid such a decree\r\nwould be to challenge the consent decree before the Court that\r\npassed the same and to prove that the agreement forming the basis\r\nfor the decree was invalid. It is therefore imperative that a party\r\nseeking to avoid the terms of a consent decree has to establish,\r\nbefore the Court that passed the same, that the agreement on which\r\nthe consent decree is based, is invalid or illegal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n35. It is a settled position of law that where an allegation of fraud\r\nis made against a party to an agreement, the said allegation would\r\nhave to be proved strictly, in order to avoid the agreement on the\r\nground that fraud was practiced on a party in order to induce such\r\nparty to enter into the agreement. Similarly, the terms of a\r\ncompromise decree, cannot be avoided, unless the allegation of\r\nfraud has been proved. In the absence of any conclusive proof as to\r\nfraud on the part of the objectors, the High Court could not have set\r\naside the compromise decree in the instant case.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>36. Having considered the aforesaid facts of the present case, we\r\nare of the view that no ground was made out warranting the decision\r\nof the High Court to set aside the order of the Lok Adalat dated 07th <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">July, 2012, wherein compromise was recorded between the parties.\r\nThe High Court’s decision to set aside the order of the Lok Adalat,\r\nwithout entering into a discussion as to the findings in such order,\r\ncannot be sustained. Such decision of the High Court runs contrary\r\nto established principles of law which seek to protect the sanctity\r\nand finality of orders based on a compromise or consent between\r\nparties.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>37. Hence the impugned judgment of the High Court of Karnataka,\r\ndated 17th April, 2015 is set aside and the order of the Lok Adalat,\r\ndated 07th July, 2012 whereby the compromise between the parties\r\nto O.S. No. 876 of 2004 was recorded, is restored. The appeals are\r\nallowed.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>38. Having regard to the relationship between the parties, the\r\nparties are directed to bear their respective costs.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7c7dbd30e983f8fdde812c6a9aa09a8b.jpeg', '7466279de9528b716eb148f471dec843.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-19', 1, '', '', '2022-05-19 17:52:16', '2022-05-19 18:14:57'),
(1696, 'rwlLss1lthZ9K1yquwvDCJH47', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mere admission of signature on a document does not amount to execution of the document.  Where a person admits his signature on a document but denies its execution, the Sub-Registrar should refuse registration. Supreme Court. ', '<p><b>Veena Singh by lrs vs The District Registrar and another.<br>Civil Appeal 2929 of 2022 decided on 10 May 2022<br></b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Justice Dr Dhananjaya Y Chandrachud, Justice A S Bopanna and Justice Bela M Trivedi</b></span></p><p><b>33 If a person by whom the document is purported to be executed denies its\r\nexecution and registration is refused on those grounds, an appeal against the order\r\nof the Sub-Registrar denying execution would not be maintainable under Section 72\r\nof the Registration Act. Section 72 clearly stipulates that an appeal will lie against an\r\norder of Sub-Registrar refusing to admit a document to registration ?except where\r\nthe refusal is made on the ground of denial of execution.</b></p><p><b>36 In the present case, the appeal before the Registrar was not maintainable\r\nunder Section 72. Indeed, the appellant, in response to the memo of appeal filed by\r\nthe second respondent, specifically pleaded in her objections that ?hearing the\r\nappeal under Section 72 of the Indian Registration Act or to deliver any judgement\r\nwill be against law?. At the same time, however, the appellant also pleaded that she\r\n?had full right for argument under Section 75(4) of the Indian Registration Act and\r\nunder the Code of Civil Procedure, 1908 from the witnesses and the appellant?. The\r\nRegistrar is empowered to summon witnesses under Section 75(4) for the purpose\r\nof an enquiry under Sections 73 and 74. It thus emerges that the parties proceeded\r\non the basis that the proceedings would be decided on the basis of an enquiry under\r\nSection 73, and the enquiry was conducted with reference to the provisions of\r\nSection 74. The appellant herself understood this to be the position in her objections\r\nfiled to the appeal filed by the second respondent, since she invoked her rights\r\nunder Section 75(4), which applies to enquiry proceedings under Section 74. The\r\nappeal against the Sub-Registrar‘s order was not maintainable under Section 72.\r\nThe remedy of the second respondent, where the Sub-Registrar refused registration\r\non the ground that the appellant denied execution of the document, was under\r\nSection 73. The Registrar conducted an enquiry under the provisions of sections 73\r\nand 74. Both parties participated in the enquiry.</b></p><p><b>37 Mulla’s commentary on The Registration Act analyses a situation where an\r\napplication under Section 73 is wrongly labelled as an appeal under Section 72, in\r\nthe following extract <i>14:\r\n?If a refusal is made on the ground of denial of execution,\r\nappeal would not lie under s 72 of the Act. When the refusal\r\nis denied on the execution, remedy is to file an application\r\nunder s 73 of the Act. The mere fact that an application is\r\nwrongly headed as an appeal and an erroneous section of the\r\nstatute is mentioned therein is immaterial, if in fact and in law\r\nit is an application under s 73 of the Registration Act.</i></b></p><p><b>Meaning of “execution”\r\n39 Section 35(1)(a) of the Registration Act uses the expression ?admit the\r\nexecution of the document?, while Section 35(3)(a) uses the expression ?denies its\r\nexecution?. Similarly, Section 72(1) has adopted the expression ?denial of\r\nexecution?, while Section 73(1) uses the expression ?denies its execution. However,\r\nthe word ?execution? itself is not defined by the Registration Act. Before us, two\r\npossible interpretations have been urged by the parties:\r\n<br>(i) First, that ?execution? is tantamount to ?signing a document. Hence, once a\r\nperson admits to their signature on a document, they admit to having\r\nexecuted it; and\r\n<br>(ii) Second, that ?execution cannot be equated with merely signing a document.\r\nHence, even if a person‘s signature on the document admitted, they can still&nbsp;deny its execution if they did not agree to or understand the contents of the\r\ndocument while signing it.</b></p><p><b>57 The execution of a document does not stand admitted merely because a\r\nperson admits to having signed the document. Such an interpretation accounts for\r\ncircumstances where an individual signs a blank paper and it is later converted into\r\na different document, or when an individual is made to sign a document without fully\r\nunderstanding its contents. Adopting a contrary interpretation would unfairly put the\r\nburden upon the person denying execution to challenge the registration before a civil\r\ncourt or a writ court, since registration will have to be allowed once the signature has\r\nbeen admitted.&nbsp;<br></b></p><p><b>\r\n58 In giving meaning to the expression ?execute? in the provisions of the\r\nRegistration Act, it is necessary to adopt a purposive construction to protect,\r\nfacilitate and achieve the object of registration.&nbsp;</b></p><p><b>64 Therefore, in a situation where an individual admits their signature on a\r\ndocument but denies its execution, the Sub-Registrar is bound to refuse registration\r\nin accordance with Sections 35(3)(a) of the Registration Act. Subsequently, if an\r\napplication if filed under Section 73, the Registrar is entrusted with the power of\r\nconducting an enquiry of a quasi-judicial nature under Section 74. If the Registrar\r\npasses an order refusing registration under Section 76, the party presenting the\r\ndocument for registration has the remedy of filing a civil suit under Section 77 of the\r\nRegistration Act, where a competent civil court will be able to adjudicate upon the\r\nquestion of fact conclusively<i><br></i></b><br></p>', 'fa055acdc21e63218aeb63c0ce01b3c3.jpg', '96d263ba1d7bc0979d4e7f539a509bc0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-19', 1, '', '', '2022-05-19 18:51:25', '2022-05-19 18:55:11'),
(1697, 'tOphQFjbN23V41xG5353iFYvK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When a person denies execution of a document and registration is refused by the Sub-Registrar on that ground, the said order is not appealable under Section 72 of the Registration Act. Supreme Court. ', '<p><b>Veena Singh by lrs vs The District Registrar and another.<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Civil Appeal 2929 of 2022 decided on 10 May 2022<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice Dr Dhananjaya Y Chandrachud, Justice A S Bopanna and Justice Bela M Trivedi</span></b></p><p><b>33 If a person by whom the document is purported to be executed denies its execution and registration is refused on those grounds, an appeal against the order of the Sub-Registrar denying execution would not be maintainable under Section 72 of the Registration Act. Section 72 clearly stipulates that an appeal will lie against an order of Sub-Registrar refusing to admit a document to registration except where the refusal is made on the ground of denial of execution.</b></p><p><b>36 In the present case, the appeal before the Registrar was not maintainable under Section 72. Indeed, the appellant, in response to the memo of appeal filed by the second respondent, specifically pleaded in her objections that ?hearing the appeal under Section 72 of the Indian Registration Act or to deliver any judgement will be against law?. At the same time, however, the appellant also pleaded that she ?had full right for argument under Section 75(4) of the Indian Registration Act and under the Code of Civil Procedure, 1908 from the witnesses and the appellant?. The Registrar is empowered to summon witnesses under Section 75(4) for the purpose of an enquiry under Sections 73 and 74. It thus emerges that the parties proceeded on the basis that the proceedings would be decided on the basis of an enquiry under Section 73, and the enquiry was conducted with reference to the provisions of Section 74. The appellant herself understood this to be the position in her objections filed to the appeal filed by the second respondent, since she invoked her rights under Section 75(4), which applies to enquiry proceedings under Section 74. The appeal against the Sub-Registrar‘s order was not maintainable under Section 72. The remedy of the second respondent, where the Sub-Registrar refused registration on the ground that the appellant denied execution of the document, was under Section 73. The Registrar conducted an enquiry under the provisions of sections 73 and 74. Both parties participated in the enquiry.</b></p><p><b>37 Mulla’s commentary on The Registration Act analyses a situation where an application under Section 73 is wrongly labelled as an appeal under Section 72, in the following extract 14: ?If a refusal is made on the ground of denial of execution, appeal would not lie under s 72 of the Act. When the refusal is denied on the execution, remedy is to file an application under s 73 of the Act. The mere fact that an application is wrongly headed as an appeal and an erroneous section of the statute is mentioned therein is immaterial, if in fact and in law it is an application under s 73 of the Registration Act.</b></p><p><b>Meaning of “execution” 39 Section 35(1)(a) of the Registration Act uses the expression ?admit the execution of the document?, while Section 35(3)(a) uses the expression ?denies its execution?. Similarly, Section 72(1) has adopted the expression ?denial of execution?, while Section 73(1) uses the expression ?denies its execution. However, the word ?execution? itself is not defined by the Registration Act. Before us, two possible interpretations have been urged by the parties:</b></p><p><b>(i) First, that ?execution? is tantamount to ?signing a document. Hence, once a person admits to their signature on a document, they admit to having executed it; and</b></p><p><b>(ii) Second, that ?execution cannot be equated with merely signing a document. Hence, even if a person‘s signature on the document admitted, they can still deny its execution if they did not agree to or understand the contents of the document while signing it.</b></p><p><b>57 The execution of a document does not stand admitted merely because a person admits to having signed the document. Such an interpretation accounts for circumstances where an individual signs a blank paper and it is later converted into a different document, or when an individual is made to sign a document without fully understanding its contents. Adopting a contrary interpretation would unfairly put the burden upon the person denying execution to challenge the registration before a civil court or a writ court, since registration will have to be allowed once the signature has been admitted. </b></p><p><b>58 In giving meaning to the expression ?execute? in the provisions of the Registration Act, it is necessary to adopt a purposive construction to protect, facilitate and achieve the object of registration. </b></p><p><b>64 Therefore, in a situation where an individual admits their signature on a document but denies its execution, the Sub-Registrar is bound to refuse registration in accordance with Sections 35(3)(a) of the Registration Act. Subsequently, if an application if filed under Section 73, the Registrar is entrusted with the power of conducting an enquiry of a quasi-judicial nature under Section 74. If the Registrar passes an order refusing registration under Section 76, the party presenting the document for registration has the remedy of filing a civil suit under Section 77 of the Registration Act, where a competent civil court will be able to adjudicate upon the question of fact conclusively</b></p>', '84a4562d34d0ddc0f6f5f15f3cc7f07e.JPG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-19', 1, '', '', '2022-05-19 19:05:20', '2022-05-19 19:13:09');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1698, 'ksa8eMzdIxPxVPSyEAxLsMexI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When a composite suit is filed for cancellation of sale deed and recovery of possession, limitation period is to be considered with respect to the substantive relief of cancellation of the sale deed, which would be three years. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rajpal Singh Vs Saroj Through Lrs and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3489 of 2022 decided on 18 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order dated 29.09.2016 passed by the High Court of Punjab and\r\nHaryana at Chandigarh in Second Appeal No. 4594 of 2009 by which the\r\nHigh Court has allowed the said appeal preferred by the original plaintiff\r\nand has quashed and set aside the judgment and order passed by the\r\nFirst Appellate Court decreeing the suit for specific performance and\r\nrestoring the judgment and decree passed by the learned Trial Court <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dismissing the suit for specific performance of the agreement to sell, the\r\noriginal respondent No.1 has preferred the present appeal.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The original plaintiff instituted the Civil Suit No. 419/2007 claiming\r\ncancellation of the Sale Deed dated 19.04.1996 in respect of the suit\r\nproperty on the basis of the decree obtained by her in Civil Suit No.1643\r\nof 1994 dated 01.02.1995. It is required to be noted that in the earlier\r\nsaid suit filed by the original plaintiff being Civil Suit No.1643 of 1994,\r\nwhich was filed against her husband – original defendant No.2, there\r\nwas no contest by the original defendant No.2 – original landowner and\r\nin the written statement, he admitted everything averred in the plaint and\r\non the basis of which the decree came to be passed in favour of the\r\noriginal plaintiff on 01.02.1995. It is also required to be noted that the\r\ncase on behalf of the original plaintiff in the earlier Civil Suit No.1643 of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1994 was based on an alleged family arrangement, which was never\r\nproduced before the court and/or even thereafter also. At this stage, it is\r\nrequired to be noted that prior thereto, there was already an agreement\r\nto sell executed by the original defendant No.2 – husband of the original\r\nplaintiff dated 04.04.1993 in favour of the Appellant herein and the time\r\nfor executing the sale deed was extended twice in writing on requests\r\nmade by the original defendant No.2 – original owner on 02.04.1994 and\r\n01.04.1995. After the aforesaid agreement to sell dated 04.04.1993 and\r\nafter the first extension, the original plaintiff filed the aforesaid collusive\r\nsuit being Civil Suit No.1643 of 1994 and obtained the collusive decree\r\ndated 01.02.1995.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Thereafter, on the strength of the agreement to sell dated\r\n04.04.1993 and without disclosing the decree passed against him in Civil\r\nSuit No.1643 of 1994 dated 01.02.1995, the original defendant No.2 –\r\nhusband of the original plaintiff – original landowner executed the\r\nregistered Sale Deed dated 19.04.1996 and accepted the balance sale\r\nconsideration. Necessary changes were consequently made in the\r\nrevenue records as well, entering the name of the original defendant\r\nNo.1 – appellant herein in the year 1996 itself. At this stage, it is to be\r\nnoted that there was no mutation in the revenue records pursuant to the\r\ndecree dated 01.02.1995 in Civil Suit No.1643 of 1994. It has also come <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">on record and even as admitted by the original plaintiff in the present\r\nsuit, the appellant herein - original defendant No.1 continued to be in\r\npossession and cultivating the land from 1996 onwards and despite the\r\nabove she filed the suit for cancellation of the Sale Deed dated\r\n19.04.1996, which was in favour of the appellant - original defendant\r\nNo.1 executed by her husband – original defendant No.2 in the year\r\n2001.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Therefore, the subsequent present suit filed by the original plaintiff\r\nin Civil Suit No. 419/2007 can be said to be clearly barred by the law of\r\nlimitation. The suit seeking cancellation of the sale deed was required to\r\nbe filed within a period of three years from the date of the knowledge of\r\nthe sale deed. Therefore, when the name of the appellant herein -\r\noriginal defendant No.1 was mutated in the revenue records in the year\r\n1996 on the basis of the registered Sale Deed dated 19.04.1996 and\r\nwhen he was found to be in possession and cultivating the land since\r\nthen, the suit was required to be filed by the original plaintiff within a\r\nperiod of three years from 1996. The submission on behalf of the\r\noriginal plaintiff (now represented through her heirs) that the prayer in\r\nthe suit was also for recovery of the possession and therefore the said\r\nsuit was filed within the period of twelve years and therefore the suit has\r\nbeen filed within the period of limitation, cannot be accepted. Relief for\r\npossession is a consequential prayer and the substantive prayer was of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cancellation of the Sale Deed dated 19.04.1996 and therefore, the\r\nlimitation period is required to be considered with respect to the\r\nsubstantive relief claimed and not the consequential relief. When a\r\ncomposite suit is filed for cancellation of the sale deed as well as for\r\nrecovery of the possession, the limitation period is required to be\r\nconsidered with respect to the substantive relief of cancellation of the\r\nsale deed, which would be three years from the date of the knowledge of\r\nthe sale deed sought to be cancelled. Therefore, the suit, which was\r\nfiled by the original plaintiff for cancellation of the sale deed, can be said\r\nto be a substantive therefore the same was clearly barred by limitation.\r\nHence, the learned Trial Court ought to have dismissed the suit on the\r\nground that the suit was barred by limitation. As such the learned First\r\nAppellate Court was justified and right in setting aside the judgment and\r\ndecree passed by the learned Trial Court and consequently dismissing\r\nthe suit. The High Court has committed a grave error in quashing and\r\nsetting aside a well-reasoned and a detailed judgment and order passed\r\nby the First Appellate Court dismissing the suit and consequently\r\nrestoring the judgment and decree passed by the Trial Court.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. In view of the above and for the reasons stated above, the present\r\nappeal succeeds. The impugned judgment and order passed by the\r\nHigh Court dated 29.09.2016 passed in Second appeal No. 4594 of\r\n2009 is hereby quashed and set aside. The judgment and order passed\r\nby the First Appellate Court is hereby restored and consequently the suit\r\nfiled by the original plaintiff stands dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\nPresent appeal is accordingly allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>However, in the facts and\r\ncircumstances of the case, there shall be no order as to costs. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e3f7c756092eef57278c39e1b4a1cce1.jpeg', 'f3217e3ba84e6fffea1dd2863ed995bb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-22', 1, '', '', '2022-05-19 22:48:39', '2022-05-22 04:27:58'),
(1699, 'UZ49aPqhqatoxgrqR1EF0xbEr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sections 14 and 22 of the National Green Tribunal Act does not oust the High Court’s jurisdiction under Article 226 & 227 as the same is a part of the basic structure of the Constitution. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Madya Pradesh High Court Advocates Bar Association and another Vs Union of India and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition (Civil) 433 of 2022 decided on 18 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.M. Joseph and Justice Hrishikesh Roy.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Through this writ petition filed under Article 32 of\r\nthe Constitution of India, the petitioners who are the\r\nMadhya Pradesh High Court Advocates Bar Association and\r\nthe District Bar Association, both with their registered\r\noffices at Jabalpur, have raised a challenge to the vires\r\nof the National Green Tribunal Act, 2010 (hereinafter\r\nreferred to as “the NGT Act”)</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Insofar as the contention of the petitioners that\r\nthere is ouster of jurisdiction of the High Courts under\r\nArticle 226 and 227 of the Constitution because of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Sections 14 & 22 of the NGT Act, it must be recalled that\r\nin L. Chandra Kumar vs. Union of India [supra], it has\r\nbeen categorically declared that the power of judicial\r\nreview under Articles 226, 227, and 32 are part of the\r\nbasic structure of our constitution and the same is\r\ninviolable.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Apart from the clear enunciation on legal position\r\nto the effect that the NGT is within the purview of\r\nArticle 226 and 227 jurisdiction of the High Courts, the\r\nlearned Attorney General on behalf of the Union of India\r\nhas also made submissions consistent with L. Chandra\r\nKumar [supra] and conceded the legal position.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. It can further be noted that in terms of the above\r\nratio in L. Chandra Kumar [supra], the High Courts have\r\nbeen entertaining petitions under Article 226 and 227 of\r\nthe Constitution against orders of the NGT. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. The options available to a litigant to either move to\r\nthe Supreme Court in a case where a substantial question\r\nof law arises or proceed under Article 226 or 227 must\r\nnot also be overlooked. If necessary, a party can also\r\napproach this Court by way of an Article 136 petition.\r\nWith such choices being available for a party no <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">rational justification is found for striking down\r\nSection 22 of the Act which provides for a direct appeal\r\nto the Supreme Court.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>36. It must also be borne in mind that the question of\r\nvalidity of the Tribunal Reforms Act, is pending in\r\nthis Court in a batch of cases tagged with WP(C)\r\n1018/2021 Madras Bar Association v. Union of India. Few\r\nsimilar issues like the present have also been raised\r\nin the pending cases where the Union of India has filed\r\ncounter affidavit indicating their stand. As those\r\nissues are under consideration in the pending case, the\r\nsame is left to be decided in those matters.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>37. For all the aforesaid reasons, section 3 of the NGT\r\nAct is found to be intra vires to the Constitution of\r\nIndia. However, it is clarified that our conclusion is\r\nbased on the specific facts of this case, and we make\r\nno comments on the issues which are sub-judice in the\r\nWP(C) 1018/2021 Madras Bar Association v. Union of\r\nIndia.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>38. In consequence of the above analysis, our\r\nconclusions are,</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>A. The National Green Tribunal under Section 14 & 22\r\nof the NGT Act does not oust the High Court’s\r\njurisdiction under Article 226 & 227 as the same is\r\na part of the basic structure of the Constitution.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>B.The remedy of direct appeal to the Supreme Court\r\nunder Section 22 of the NGT Act is intra vires the\r\nConstitution of India.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>C. Section 3 of the NGT Act is not a case of excessive\r\ndelegation of power to the Central Government.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">D.The seat of the NGT benches can be located as per </span><span style=\"font-size: 12pt;\">exigencies and it is not necessary to locate them in\r\nevery State. The prayer for relocating the Bhopal\r\nNGT to Jabalpur is unmerited and is rejected. </span></b></p>', 'bbed2f3420874617c697ba0eb56836af.jpeg', '6a56637ba6dea03c84d81f0678b1e288.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-21', 1, '', '', '2022-05-20 00:04:35', '2022-05-21 12:34:28'),
(1700, 'MsboMcLMlOPe9rj1aF2frlPG3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Doctrine of delay and laches does not apply to cases of continuing cause of action like claiming arrears of salary since cause of action arises every month when salary is paid on wrong computation. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rushibhai Jagadishbhai Pathak Vs Bhavnagar Municipal Corporation<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4134 of 2022 decided on 18 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ajay Rastogi and Justice Sanjiv Khanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. This common judgment decides the afore-stated appeals filed by\r\nthe employees of the Bhavnagar Municipal Corporation who have <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">challenged the judgment dated 13th June 2019 of the Division\r\nBench of the High Court of Gujarat at Ahmedabad, whereby the\r\nappeal filed by the respondent-Corporation was partially allowed,\r\nin view of delay and laches on the part of the appellants in\r\napproaching the court, by restricting the grant of higher pay-scale\r\nof Rs.5,000-8,000/-2\r\n with consequential benefits from the date of\r\nthe judgment of the Single Judge on 31st July 2018. Prayer of the\r\nappellants for recovery of arrears from 2010 was declined. The\r\nrespondent-Corporation, it has been held, would not be required\r\nto refund any amount that they have recovered from the\r\nappellants pursuant to the order dated 28th October 2010. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The doctrine of delay and laches, or for that matter statutes of\r\nlimitation, are considered to be statutes of repose and statutes of\r\npeace, though some contrary opinions have been expressed. The\r\ncourts have expressed the view that the law of limitation rests on\r\nthe foundations of greater public interest for three reasons,\r\nnamely,</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(a) that long dormant claims have more of cruelty than\r\njustice in them;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(b) that a defendant might have lost the evidence\r\nto disapprove a stale claim; and</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iii) that persons with good\r\ncauses of action (who are able to enforce them) should pursue\r\nthem with reasonable diligence. Equally, change in de facto\r\nposition or character, creation of third party rights over a period of\r\ntime, waiver, acquiesce, and need to ensure certitude in dealings,\r\nare equitable public policy considerations why period of limitation\r\nis prescribed by law. Law of limitation does not apply to writ <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitions, albeit the discretion vested with a constitutional court is\r\nexercised with caution as delay and laches principle is applied\r\nwith the aim to secure the quiet of the community, suppress fraud\r\nand perjury, quicken diligence, and prevent oppression. Therefore, some decisions and judgments do not look upon pleas\r\nof delay and laches with favour, especially and rightly in cases\r\nwhere the persons suffer from adeptness, or incapacity to\r\napproach the courts for relief. However, other decisions, while\r\naccepting the rules of limitation as well as delay and laches, have\r\nobserved that such rules are not meant to destroy the rights of the\r\nparties but serve a larger public interest and are founded on public\r\npolicy. There must be a lifespan during which a person must\r\napproach the court for their remedy. Otherwise, there would be\r\nunending uncertainty as to the rights and obligations of the\r\nparties.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. At the same time, the law recognises a ‘continuing’ cause of\r\naction which may give rise to a ‘recurring’ cause of action as in the\r\ncase of salary or pension. This Court in M.R. Gupta v. Union of\r\nIndia and Others, has held that so long as the employee is in\r\nservice, a fresh cause of action would arise every month when\r\nthey are paid their salary on the basis of a wrong computation\r\nmade contrary to the rules. If the employee’s claim is found to be\r\ncorrect on merits, they would be entitled to be paid according to\r\nthe properly fixed pay-scale in future and the question of limitation\r\nwould arise for recovery of the arrears for the past period. The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court held that the arrears should be calculated and paid as long\r\nas they have not become time-barred. The entire claim for the\r\npast period should not be rejected.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. In Tarsem Singh (supra), the delay of 16 years in approaching\r\nthe courts affected the consequential claim for arrears and thus,\r\nthis Court set aside the direction to pay arrears for 16 years with\r\ninterest. The Court restricted “the relief relating to arrears to only\r\nthree years before the date of writ petition, or from the date of\r\ndemand to date of writ petition, whichever was lesser”. Further,\r\nthe grant of interest on arrears was also denied.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. Recording the aforesaid, we partly allow the present appeals with\r\na direction that the appellants would be entitled to arrears in the\r\npre-revised pay-scale of Rs.5,000-8,000/- for three years prior to\r\nthe date of filing of the Writ Petitions along with interest at the rate\r\nof 7% per annum with effect from 1st September 2017. The\r\narrears, with interest, would be paid within a period of four months\r\nfrom the date of pronouncement of this judgment. A computation\r\nsheet/statement of accounts on the basis of which payment is\r\nmade by the respondent-Corporation shall be furnished to the\r\nappellants. The impugned judgment is, accordingly, partly set\r\naside and the Writ Petitions filed by the appellants would be\r\ntreated as allowed in the aforesaid terms. There would be no\r\norder as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7ca6cb87f7c216c35bd497b3e13ecc5b.jpeg', '14069ad4d51231287a47397f365f1bf4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-21', 1, '', '', '2022-05-20 00:23:40', '2022-05-21 06:30:54'),
(1701, 's82ti7LCBNHOqXCR9r9UfBAKY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Conducting arbitration proceedings at new place owing to appointment of a new arbitrator would not shift the ‘jurisdictional seat of arbitration’. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>BBR (India) Private Limited Vs S.P. Singla Constructions Private Limited.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4130-4131 of 2022 decided on 18 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ajay Rastogi and Justice Sanjiv Khanna. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The short and interesting issue which arises in the present\r\nappeals is – whether conducting the arbitration proceedings at\r\nDelhi, owing to the appointment of a new arbitrator, would shift\r\nthe ‘jurisdictional seat of arbitration’ from Panchkula in Haryana,\r\nthe place fixed by the first arbitrator for the arbitration\r\nproceedings?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The arbitration clause is silent and does not stipulate the seat or\r\nvenue of arbitration. The contract and letter of intent were\r\nexecuted at Panchkula in Haryana. The corporate office of the\r\nrespondent is also located at Panchkula. However, the registered\r\noffice of the appellant is located in Bengaluru, Karnataka.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The award was signed and pronounced at Delhi on 29th January\r\n2016, whereunder the respondent was awarded a sum of\r\nRs.3,35,86,577/- with interest at the rate of 15% per annum.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. However, this order has been set aside by the High Court of\r\nPunjab and Haryana vide order dated 14th October 2019, with the\r\nfinding that the courts of Delhi do not have the jurisdiction to\r\nentertain the objections under Section 34 of the Act. To this effect,\r\nthe High Court of Punjab and Haryana has recorded that the\r\nagreement between the parties was silent as to ‘the seat’ of the\r\narbitration proceedings, and the second arbitrator Mr. Justice\r\n(Retd.) T.S. Doabia, vide his first order dated 30th June 2015, had\r\nnot determined Delhi to be the ‘seat of arbitration’. Relying on the\r\ndecision of this Court in State of West Bengal and Others v.\r\nAssociated Contractors, the High Court held that the courts at\r\nPanchkula had jurisdiction to deal with the case. The review\r\napplication filed by the appellant was dismissed vide order dated\r\n8\r\nth November 2019.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. Interpretation of the term ‘court’, as defined in sub-clause (e) to\r\nsub-section (1) of Section 2 of the Act, had come up for\r\nconsideration before a Constitutional Bench of five Judges in the\r\ncase of Bhartiya Aluminium Company v. Kaiser Aluminium\r\nTechnical Services Inc, which decision had examined the\r\ndistinction between ‘jurisdictional seat’ and ‘venue’ in the context\r\nof international arbitration, to hold that the expression ‘seat of\r\narbitration’ is the centre of gravity in arbitration. However, this\r\ndoes not mean that all arbitration proceedings must take place at\r\n‘the seat’. The arbitrators at times hold meetings at more\r\nconvenient locations. Regarding the expression ‘court’, it was\r\nobserved that Section 2(2) of the Act does not make Part-I\r\napplicable to arbitrations seated outside India. The expressions\r\nused in Section 2(2)8\r\n of the Act do not permit an interpretation to\r\nhold that Part-I would also apply to arbitrations held outside the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">territory of India. Noticing the above interpretation, a three Judges\r\nBench of this Court in BGS SGS Soma JV v. NHPC Limited has\r\nobserved that the expression ‘subject to arbitration’ used in clause\r\n(e) to sub-section (1) of Section 2 of the Act cannot be confused\r\nwith the ‘subject matter of the suit’. The term ‘subject matter of the\r\nsuit’ in the said provision is confined to Part-I. The purpose of the\r\nclause is to identify the courts having supervisory control over the\r\njudicial proceedings. Hence, the clause refers to a court which\r\nwould be essentially a court of ‘the seat’ of the arbitration process.\r\nAccordingly, clause (e) to sub-section (1) of Section 2 has to be\r\nconstrued keeping in view the provisions of Section 20 of the Act,\r\nwhich are, in fact, determinative and relevant when we decide the\r\nquestion of ‘the seat of an arbitration’. This interpretation\r\nrecognises the principle of ‘party autonomy’, which is the edifice of\r\narbitration. In other words, the term ‘court’ as defined in clause (e)\r\nto sub-section (1) of Section 2, which refers to the ‘subject matter\r\nof arbitration’, is not necessarily used as finally determinative of\r\nthe court\'s territorial jurisdiction to entertain proceedings under the\r\nAct. In BGS SGS Soma (supra), this Court observed that any\r\nother construction of the provisions would render Section 20 of the\r\nAct nugatory. In view of the Court, the legislature had given </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">jurisdiction to two courts: the court which should have jurisdiction\r\nwhere the cause of action is located; and the court where the\r\narbitration takes place. This is necessary as, on some occasions,\r\nthe agreement may provide the ‘seat of arbitration’ that would be\r\nneutral to both the parties. The courts where the arbitration takes\r\nplace would be required to exercise supervisory control over the\r\narbitral process. The ‘seat of arbitration’ need not be the place\r\nwhere any cause of action has arisen, in the sense that the ‘seat\r\nof arbitration may be different from the place where obligations\r\nare/had to be performed under the contract. In such\r\ncircumstances, both the courts should have jurisdiction, viz., the\r\ncourts within whose jurisdiction ‘the subject matter of the suit’ is\r\nsituated and the courts within whose jurisdiction the dispute\r\nresolution forum, that is, where the arbitral tribunal is located.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. The appellant, however, contends that on the appointment of the\r\nnew arbitrator, namely, Mr. Justice (Retd.) T.S. Doabia, and\r\nthereupon the venue being fixed at Delhi, the jurisdictional ‘seat of\r\narbitration’ had changed from Panchkula in Haryana to Delhi.\r\nReliance in this regard is placed upon the decision of this Court in\r\nInox Renewables Ltd v. Jayesh Electricals Ltd., in which the\r\n‘seat of arbitration’ fixed by the parties was Jaipur, but the courts\r\nat Ahmedabad had entertained the challenge to the award. The\r\nappellant submits that the courts at Ahmedabad had exercised\r\njurisdiction, which was upheld on the ground that the arbitration\r\nproceedings were conducted in Ahmedabad. Thus the ‘seat of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">arbitration’ changed and had got relocated from Jaipur to\r\nAhmedabad. This, in the context of the decision in Inox\r\nRenewables Ltd (supra), is undoubtedly correct, but the aforesaid\r\ndecision cannot be read as a precept in cases governed by subsection (2) of Section 20 of the Act. Inox Renewables (supra) was\r\na case governed under sub-section (1) of Section 20 of the Act,\r\nthat is, where parties by the agreement had fixed the jurisdictional\r\n‘seat’ at Jaipur, Rajasthan, but thereafter, by mutual consent, had\r\ndecided to change the venue of proceedings to Ahmedabad prior\r\nto the commencement of the arbitration. This evidently resulted in\r\nthe decision of this Court accepting that the jurisdictional ‘seat of\r\narbitration’ was Ahmedabad. This decision would apply in case the\r\nparties, by consent, agree mutually that the ‘seat of arbitration’\r\nwould be located at a particular place. The said exercise would be\r\nin terms of sub-section (1) of Section 20 of the Act, which\r\nendorses and emphasises on party autonomy and choice that\r\ndetermines the ‘seat of arbitration’. It would not apply when the\r\narbitrator fixes ‘the seat’ in terms of sub-section (2) of Section 20\r\nof the Act. Once the arbitrator fixes ‘the seat’ in terms of subsection (2) of Section 20 of the Act, the arbitrator cannot change\r\n‘the seat’ of the arbitration, except when and if the parties mutually </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">agree and state that the ‘seat of arbitration’ should be changed to\r\nanother location, which is not so in the present case.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>25. There are good reasons why we feel that subsequent hearings or\r\nproceedings at a different location other than the place fixed by\r\nthe arbitrator as the ‘seat of arbitration’ should not be regarded\r\nand treated as a change or relocation of jurisdictional ‘seat’. This\r\nwould, in our opinion, lead to uncertainty and confusion resulting\r\nin avoidable esoteric and hermetic litigation as to the jurisdictional\r\n‘seat of arbitration’. ‘The seat’ once fixed by the arbitral tribunal\r\nunder Section 20(2), should remain static and fixed, whereas the\r\n‘venue’ of arbitration can change and move from ‘the seat’ to a\r\nnew location. Venue is not constant and stationary and can move\r\nand change in terms of sub-section (3) to Section 20 of the Act.\r\nChange of venue does not result in change or relocation of the\r\n‘seat of arbitration’.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">26. It is highly desirable in commercial matters, in fact in all cases,\r\nthat there should be certainty as to the court that should exercise\r\njurisdiction. We do not think the law of arbitration visualises\r\nrepeated or constant shifting of the ‘seat of arbitration’. In fact,\r\nsub-section (3) of Section 20 specifically states and draws a\r\ndistinction between the venue of arbitration and the ‘seat of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">arbitration’ by stating that for convenience and other reasons, the\r\narbitration proceedings may be held at a place different than the\r\n‘seat of arbitration’, which location is referred to the venue of\r\narbitration. If we accept this contention of the appellant, we would,\r\nas observed in the case of C v. D (supra), create a recipe for\r\nlitigation and (what is worse) confusion which was not intended by\r\nthe Act. The place of jurisdiction or ‘the seat’ must be certain and\r\nstatic and not vague or changeable, as the parties should not be\r\nin doubt as to the jurisdiction of the courts for availing of judicial\r\nremedies. Further, there would be a risk of parties rushing to the\r\ncourts to get first hearing or conflicting decisions that the law does\r\nnot contemplate and is to be avoided.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. At this stage, we must also deal with the appellant\'s argument that\r\nsubstantive proceedings were held in Delhi and, therefore, it\r\nwould be the ‘seat of arbitration’. The proceedings before the first\r\narbitration at Panchkula, Haryana, were restricted to filing of\r\npleadings and documents. On deeper consideration, this\r\nargument should be rejected for the reasons recorded above, as it\r\nwill lead to confusion and uncertainty. The legal question raised in\r\nthe present case must be answered objectively and not\r\nsubjectively with reference to the facts of a particular case.\r\nOtherwise, there would be a lack of clarity and consequent mix-up\r\nabout the courts that would exercise jurisdiction. There could be\r\ncases where the arbitration proceedings are held at different\r\nlocations, but the ‘seat of arbitration’, as agreed by the parties or <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as determined by the arbitrator, may be different, and at that place\r\n– ‘the seat’, only a few hearings or initial proceedings may have\r\nbeen held. This would not matter and would not result in shifting of\r\nthe jurisdictional ‘seat’. Arbitrators can fix the place of residence,\r\nplace of work, or in case of recusal, arbitration proceedings may\r\nbe held at two different places, as in the present case. For clarity\r\nand certainty, which is required when the question of territorial\r\njurisdiction arises, we would hold that the place or the venue fixed\r\nfor arbitration proceedings, when sub-section (2) of Section 20\r\napplies, will be the jurisdictional ‘seat’ and the courts having\r\njurisdiction over the jurisdictional ‘seat’ would have exclusive\r\njurisdiction. This principle would have exception that would apply\r\nwhen by mutual consent the parties agree that the jurisdictional\r\n‘seat’ should be changed, and such consent must be express and\r\nclearly understood and agreed by the parties</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. We have quoted Section 42 of the Act. Section 42 was also\r\nexamined in BGS SGS Soma (supra) and the view expressed by\r\nthe Delhi High Court in Antrix Corpn. Ltd. v. Devas Multimedia\r\n(P) Ltd. was overruled observing that the Section 42 is meant to\r\navoid conflicts of jurisdiction of courts by placing the supervisory\r\njurisdiction over all arbitration proceedings in connection with the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">arbitration proceedings with one court exclusively. The aforesaid\r\nobservation supports our reasoning that once the jurisdictional\r\n‘seat’ of arbitration is fixed in terms of sub-section (2) of Section\r\n20 of the Act, then, without the express mutual consent of the\r\nparties to the arbitration, ‘the seat’ cannot be changed. Therefore,\r\nthe appointment of a new arbitrator who holds the arbitration\r\nproceedings at a different location would not change the\r\njurisdictional ‘seat’ already fixed by the earlier or first arbitrator.\r\nThe place of arbitration in such an event should be treated as a\r\nvenue where arbitration proceedings are held.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32. Section 42 is to no avail as it does not help the case propounded\r\nby the appellant, as in the present case the arbitrator had fixed the\r\njurisdictional ‘seat’ under Section 20(2) of the Act before any party\r\nhad moved the court under the Act, being a court where a part or\r\nwhole of the cause of action had arisen. The appellant had moved\r\nthe Delhi High Court under Section 34 of the Act after the arbitral <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">tribunal vide the order dated 5\r\nth August 2014 had fixed the\r\njurisdictional ‘seat’ at Panchkula in Haryana. Consequently, the\r\nappellant cannot, based on fastest finger first principle, claim that\r\nthe courts in Delhi get exclusive jurisdiction in view of Section 42\r\nof the Act. The reason is simple that before the application under\r\nSection 34 was filed, the jurisdictional ‘seat’ of arbitration had\r\nbeen determined and fixed under sub-section (2) to Section 20\r\nand thereby, the courts having jurisdiction over Panchkula in\r\nHaryana, have exclusive jurisdiction. The courts in Delhi would not\r\nget jurisdiction as the jurisdictional ‘seat of arbitration’ is\r\nPanchkula and not Delhi.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>33. In view of the aforesaid discussion and reasons, we do not find\r\nany merit in the present appeals, and the same are dismissed\r\nwithout any order as to costs.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd57f427d0f6f8f912d721ecb625dd53a.jpeg', '956a7e42e65e7f7e003df073f51d632e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-21', 1, '', '', '2022-05-20 00:33:38', '2022-05-21 04:30:13');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1702, 'TnyaOWn4PbMOZJbPWycgaqSXu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu widow in possession of property of her husband or HUF has a right to be in possession and to be maintained out of the said property which right gets automatically enlarged into absolute right after Hindu Succession Act. Supreme Court reiterates.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Munni Devi Allias Nathi Devi Through LRS and others Vs Rajendra Allias Lallu Lal Through LRS and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5894 of 2019 decided on 18 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ajay Rastogi and Justice Bela M. Trivedi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">1. The present appeal is directed against the judgment and decree dated\r\n20.07.2017 passed by the High Court of Judicature for Rajasthan, Bench at\r\nJaipur in S.B. Civil First Appeal No.120 of 1989, filed by the Appellants\r\nunder Section 96 read with Order 41 of CPC, whereby the High Court\r\nwhile allowing the said First Appeal has set aside the judgment and decree\r\ndated 05.08.1989 passed by the Additional District & Sessions Judge,\r\nClass-1, Jaipur (hereinafter referred to as “the trial court”) in Civil Suit </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">No.56/73, and has dismissed the suit filed by the plaintiff Daulalji, the\r\npredecessor of the present appellants, against the defendant no. 1 Bhonri\r\nDevi, the predecessor of the present respondent Nos.1 to 3 and others.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. From the plain reading of Section 14(1) along with the Explanation thereto,\r\nit emerges that in order to become a full owner and not a limited owner, of\r\na property by virtue of Section 14(1), a female Hindu, before or after the\r\ncommencement of Act of 1956, must be in possession of the property, and\r\nit must have been acquired by her by inheritance or devise, or at a partition,\r\nor in lieu of maintenance, or arrears of maintenance or by gift from any\r\nperson, whether a relative or not, before, at or after her marriage or by her\r\nown skill or exertion or by purchase or by prescription, or in any other\r\nmanner whatsoever, or any such property must have been held by her as\r\nstridhana immediately before the commencement of the Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. In the instant case, we are concerned with the claim of Bhonri Devi of\r\nhaving become the full owner in respect of the suit property on the ground\r\nthat she was in settled legal possession of the suit property before and after\r\nthe commencement of the Act, in lieu of her pre-existing right of\r\nmaintenance, and such limited ownership right had fructified into full\r\nownership by virtue of Section 14(1). The High Court while discussing\r\nabout the right of a Hindu widow to the property, has observed that the\r\nHindu Women’s Right to Property Act, 1937 was in force in the year 1937\r\nwhen Ganeshnarayanji, father-in-law of Bhonri Devi expired in 1938, and\r\nthat even prior to the said Act of 1937, the right of Hindu widow was\r\nrecognised as per the old shastric customs prevalent in the area. In our\r\nopinion, the Hindu Women’s Rights to Property Act, 1937 conferred right\r\non Hindu widow to the property of her husband, who died after the\r\ncommencement of the said Act of 1937 and not prior thereto. Bhonri Devi’s\r\nhusband Dhannalalji having expired in 1936, the said Act of 1937 would\r\nnot be applicable to facts of the case. However, prior to the said Act of\r\n1937, the right to maintenance of Hindu widow was recognised in Shastric\r\nlaw. This court in case of V.Tulasamma and other vs. Sesha Reddy(Dead)\r\n(supra) has elaborately considered the pre-existing right to maintenance of\r\na Hindu woman while considering the provisions of Section 14 of the said\r\nAct of 1956. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. In view of the above, there remains no shadow of doubt that a Hindu\r\nwoman’s right to maintenance was not and is not an empty formality or an\r\nillusory claim being conceded as a matter of grace and generosity. It is a\r\ntangible right against the property, which flows from the spiritual\r\nrelationship between the husband and the wife. The said right was\r\nrecognised and enjoined by pure Shastric Hindu Law, which existed even <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">before the passing of the 1937 or the 1946 Acts. Those Acts merely gave\r\nstatutory backing recognising the position as was existing under the\r\nShastric Hindu Law. Where a Hindu widow is in possession of the property\r\nof her husband or of the husband’s HUF, she has a right to be maintained\r\nout of the said property. She is entitled to retain the possession of that\r\nproperty in lieu of her right to maintenance. Section 14(1) and the\r\nExplanation thereto envisages liberal construction in favour of the females,\r\nwith the object of advancing and promoting the socio-economic ends\r\nsought to be achieved by the said legislation. As explained in\r\nV.Tulasamma (supra) case, the words “possessed by” used in Section 14(1)\r\nare of the widest possible amplitude and include the state of owning a\r\nproperty, even though the Hindu woman is not in actual or physical\r\npossession of the same. Of course, it is equally well settled that the\r\npossession of the widow, must be under some vestige of a claim, right or\r\ntitle, because the section does not contemplate the possession of any rank\r\ntrespasser without any right or title.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. The afore-stated facts and circumstances clearly established that Bhonri\r\ndevi had long settled possession of the suit property, which she had\r\nacquired in lieu of her pre-existing right to maintenance, prior to the\r\ncommencement of the Act of 1956, which entitled her to become a full\r\nowner of the suit property by virtue of Section 14(1) of the said Act. Her\r\nexclusive possession of suit property after the death of Harinarayanji in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1953 i.e., prior to coming into force of the said Act in 1956, was not only\r\nnot disputed but was admitted by the plaintiff Daulalji in the plaint itself.\r\nHer pre-existing right to maintenance from the estate of the HUF of her\r\nhusband was also well established. The submission of Mr. Jain for the\r\nappellants that mere right to maintenance would not ipso facto create any\r\ncharge on the property and that for creating legal charge recognising right\r\nof Hindu women to maintenance required execution of a document, device\r\nor agreement, cannot be countenanced. Her pre-existing right to\r\nmaintenance, coupled with her settled legal possession of the property,\r\nwould be sufficient to create a presumption that she had a vestige of right\r\nor claim in the property, though no document was executed or specific\r\ncharge was created in her favour recognizing her right to maintenance in\r\nthe property.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. As stated earlier, Hindu woman’s right to maintenance is a tangible right\r\nagainst the property which flows from the spiritual relationship between\r\nthe husband and the wife. Such right was recognized and enjoined under\r\nthe Shastric Hindu Law, long before the passing of the 1937 and the 1946\r\nActs. Where a Hindu widow is found to be in exclusive settled legal\r\npossession of the HUF property, that itself would create a presumption that\r\nsuch property was earmarked for realization of her pre-existing right of\r\nmaintenance, more particularly when the surviving co-parcener did not\r\nearmark any alternative property for recognizing her pre-existing right of\r\nmaintenance. The word “possessed by” and “acquired” used in Section\r\n14(1) are of the widest amplitude and include the state of owning a\r\nproperty. It is by virtue of Section 14(1) of the Act of 1956, that the Hindu <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">widow’s limited interest gets automatically enlarged into an absolute right,\r\nwhen such property is possessed by her whether acquired before or after\r\nthe commencement of 1956 Act in lieu of her right to maintenance.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>21. In that view of the matter, we are of the opinion that the High Court had\r\nrightly held that Bhonri Devi had pre-existing right to maintenance in the\r\nsuit property that had ripened into full ownership by virtue of Section 14(1)\r\nof the Act of 1956.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>22. The present appeal being devoid of merits is dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '82c5088002ed86ac82793725cbe252bb.jpeg', '82773bb2c272ee3e534085e2d88dbc04.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-19', 1, '', '', '2022-05-20 00:41:59', '2022-05-20 15:00:41'),
(1703, 'saWg68R3uLixKheqvUVeUo0JG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When ex­parte decree is set aside and the suit is restored to file, right to file written statement cannot be automatically foreclosed without specific order of the Court in this regard. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sudhir Rajan Patra through Lrs and another vs Himansu Sekhar Srichandan and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3641 of 2022 decided on 17 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. Feeling&nbsp; aggrieved&nbsp; and&nbsp; dissatisfied with the impugned judgment and order dated 04.02.2022 passed by the High Court of Orissa at Cuttak in CMP No. 1423/2019, by which, though the High Court has confirmed the order passed by the learned Trial Court setting aside the&nbsp; exparte decree in exercise of powers under Order IX Rule 13 of Code of Civil Procedure (CPC), the High Court has observed and held that appellants herein – defendant Nos. 2 and 3 cannot be permitted to file their written statement,&nbsp;the appellants herein – original defendant Nos. 1 to 3 have preferred the present appeals.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. At the outset it is required to be noted that when the appellants – original defendant Nos. 2 and 3 filed CMA No. 31/2018 under Order IX Rule 13 of CPC they prayed to condone the delay as well as to set aside the ex­parte decree and also to allow filing of the written statement and to take up the suit on merits. By order dated 05.12.2019, the learned Trial Court allowed CMA No. 31/2018 and condoned the delay and set aside the ex­parte decree subject to cost of Rs. 25,000/­ each to be paid to the plaintiff. From order dated 05.12.2019, it does not appear that any further order was passed by the learned Trial Court on whether by setting aside the ex­parte decree, defendant Nos. 2 and 3 may be permitted to file written statement or not. The order passed by the learned Trial Court condoning the delay and setting aside the ex­parte decree has been confirmed by the High Court by passing the&nbsp; impugned judgment and order. However, the High Court has observed that on setting aside the ex­parte decree and restoring the suit to file, defendant Nos. 2 and 3 cannot be permitted to file the written statement. Reliance is placed upon the decisions of this Court in the case of Sangram Singh (supra) and Arjun Singh (supra). However, it is true that as per the law laid down by this Court in the case of&nbsp; Sangram&nbsp; Singh&nbsp; (supra) and&nbsp; Arjun Singh (supra) when an ex­parte decree is set aside and the suit is restored to file, the defendants cannot be relegated to the position prior to the date of hearing of the suit when he was placed ex­parte. He would be debarred from filing any written statement in the suit, but then he can participate&nbsp; in the&nbsp; hearing of the suit inasmuch&nbsp; cross-examine the witness of the plaintiff and address arguments. However, in our view, in the facts and circumstances of the case, the decisions of this Court in the case of&nbsp; Sangram Singh&nbsp; (supra) and&nbsp; Arjun Singh (supra) shall not be fully applicable. In the present case by&nbsp;filing the CMA under Order IX Rule 13, appellants herein – original defendant Nos. 2 and 3 not only prayed to set aside the ex­parte decree but also prayed to allow them to file written statement. As observed above, there was no order and/or decision by the learned Trial Court on the second prayer, namely, to allow defendant Nos. 2 and 3 to file written statement or not. Therefore, once the ex­parte decree is set aside and the suit is restored to file and even as per the decisions of this Court in the case of Sangram Singh&nbsp; (supra)&nbsp; and&nbsp; Arjun&nbsp; &nbsp;Singh&nbsp; (supra)&nbsp; the&nbsp; &nbsp;defendants cannot be relegated back to the position prior to the date of hearing of the suit in that case also, it should have been left to the learned Trial Court to consider the prayer of defendant Nos.2 and 3 whether to allow them to file written statement or not, which was also prayed in CMA No. 31/2018.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>As observed hereinabove, there was no order passed by the learned Trial Court on the specific prayer made by defendant Nos. 2&nbsp; and 3 to&nbsp; allow&nbsp; them to file written statement. The learned Trial Court while passing order dated 05.12.2019 condoned the delay and set aside the exparte decree and the said order of condonation of delay and setting aside the ex­parte decree was the subject matter before the High Court. Therefore, the further observations made by the High Court that defendant Nos. 2 and 3 cannot be permitted to file their written statement can be said to be beyond the scope and ambit of the CMP filed before the High Court. Under the circumstances, the impugned judgment and order passed by the High Court to the extent of observing that defendant Nos. 2 and 3 cannot be permitted to file their written statement is unsustainable and the issue/question whether defendant Nos. 2 and 3 may be allowed to file their written statement or not, shall have to be remanded to the learned Trial Court.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court to the extent of observing that though the ex­parte decree is set aside, defendant Nos. 2 and 3 cannot be permitted to file their written statement is hereby quashed and set&nbsp;aside. The learned Trial Court to consider the prayer of defendant Nos. 2 and 3 whether to allow/permit them to file their written statement or not and as and when such question/issue is considered by the learned Trial Court, it will be open for respondent No. 1 – original plaintiff to resist the same and the learned Trial Court to consider the question/issue whether on setting aside the ex­parte decree, defendant Nos. 2 and 3 may be allowed/permitted to file their written statement, in accordance with law and on its own merits for which we have not expressed anything in favour of either party. The learned Trial Court to consider the issue/question with respect to the prayer of defendant Nos. 2 and 3 to allow them to file their written statement within a period of three months from the first date of hearing of the suit, which shall be within a period of one month from today. The present appeals are allowed to the aforesaid extent. In the facts of the case, there shall be no order as to costs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0da9fc2051f5c6c82a3c8fd74583145f.jpeg', '7b63b8b4cbc9166fdfdd7a28b82aaff6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-19', 1, '', '', '2022-05-20 01:03:33', '2022-05-20 15:24:52'),
(1711, 'bx93qYzAg4Sm05iVJYBtKWBbQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Navjot Singh Sidhu case - Undue sympathy to impose inadequate sentence would do more harm to justice system and undermine the public confidence in the efficacy of law driving the injured to resort to private vengeance. Supreme Court.', '<p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><span class=\"s1\" style=\"font-family: UICTFontTextStyleEmphasizedBody;\"><b>Jaswinder Singh Through Legal Representative Vs Navjot Singh Sidhu and others.</b></span></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><span class=\"s1\" style=\"font-family: UICTFontTextStyleEmphasizedBody;\"><b>Review Petition (CRL) 477 of 2018 decided on 19 May 2022.</b></span></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><b><span style=\"font-family: UICTFontTextStyleEmphasizedBody;\">Justice A.M. Khanwilkar and Justice Sanjay Kishan Kaul.</span><span style=\"font-family: UICTFontTextStyleEmphasizedBody;\"> </span><span style=\"font-family: UICTFontTextStyleEmphasizedBody;\">  </span></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><span style=\"font-family: UICTFontTextStyleEmphasizedBody;\"><b><br></b></span></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><b><span style=\"font-family: UICTFontTextStyleEmphasizedBody;\">1. The original controversy emanates from an FIR dated 27.12.1988 under Section 304/34 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’) registered by the Sub-Inspector of P.S. Kotwali of Patiala District, Punjab on the basis of the information given by one Shri Jaswinder Singh (Informant) about an occurrence around 12:30 p.m. at the traffic light of Battian Wala Chowk. The Informant and one Avtar Singh (PW-3 and PW-4 respectively) were travelling with the deceased, Gurnam Singh in a Maruti Car driven by the deceased. Apparently, a dispute arose on the right of way between the accused and the deceased and respondent No.1 (the first accused) came out of his vehicle, pulled out the deceased from his vehicle and inflicted fist blows. As per the Informant his endeavour to intervene resulted even in the second accused (respondent No.2) (not mentioned in the FIR) getting out of the vehicle and giving fist blows to the Informant. It was alleged that the car keys of the deceased’s car were removed by the accused and they fled from the scene of occurrence. PW-3 and PW-4 took the deceased in a rickshaw to the hospital where the doctors announced that Gurnam Singh was dead.</span><br></b></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; min-height: 22px; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><b><span class=\"s2\" style=\"font-family: UICTFontTextStyleBody;\"></span><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><span class=\"s1\" style=\"font-family: UICTFontTextStyleEmphasizedBody;\"><b>17. On analysis of the aforesaid aspect, we are disinclined to enlarge the notice to something more than the aspect of sentencing. The evidence has been analysed in detail to come to a conclusion as to what is the nature of injury. It has been taken into account that only one blow with bare hands as inflicted by respondent No.1 had landed on the head of the deceased. The finding is that apparently in the fist fight, other blows may have been attempted but did not fall on the material part of the body. Aspects such as lack of post enmity, lack of any weapon used except bare hands and the result of a spontaneous fight over a right of way were also taken into account.</b></span></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; min-height: 22px; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><b><span class=\"s2\" style=\"font-family: UICTFontTextStyleBody;\"></span><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><span class=\"s1\" style=\"font-family: UICTFontTextStyleEmphasizedBody;\"><b>18. We, thus, unequivocally reject the argument for expanding the scope of the review application.</b></span></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; min-height: 22px; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><b><span class=\"s2\" style=\"font-family: UICTFontTextStyleBody;\"></span><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><span class=\"s1\" style=\"font-family: UICTFontTextStyleEmphasizedBody;\"><b>20. The punishment under Section 323 of the IPC has been prescribed as a sentence of a term which may extend to one year or a fine which may extend to Rs.1,000/- or both. In the present case, only the fine has been imposed. The question, thus, to be analysed is whether in the given factual scenario, grave error can be said to have been committed on the issue of sentence by not punishing with imprisonment of any term whatsoever</b></span></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; min-height: 22px; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><b><span class=\"s2\" style=\"font-family: UICTFontTextStyleBody;\"></span><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><span class=\"s1\" style=\"font-family: UICTFontTextStyleEmphasizedBody;\"><b>21. Learned senior counsel for the complainant urged that the sentence imposed under Section 323 of the IPC was not in line with the principles of sentencing principles and that the observations on sentencing in Sunil Dutt Sharma v. State , albeit in the case of a death sentence, would equally apply for lesser offences. It was held that the aggravating and mitigating factors both were required to be considered before deciding the question of sentence, more so when the judgment of the High Court is sought to be upset, on the provisions under which it is based. The sentence imposed, it was urged, should be proportionate to the offence and should take into account the deterrence aspect. There cannot be leniency in sentencing when the hurt/injury has resulted in death, nor can the delay in trial be taken into account which was not attributable to the complainants. Respondent No.1 at the relevant time was a young man of 25 years, who was playing international cricket and was athletically physically fit. He is expected to know the effect of any blow to be inflicted by him, more so, when on the opposite side the man is aged about 65 years (more than his father’s age and elder to him by 40 years). Thus, it was urged that simply because it was a spontaneous incident where no weapon was used, the same cannot be a ground to inflict minimal and innocuous punishment of fine of Rs.1,000/-.</b></span></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; min-height: 22px; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><b><span class=\"s2\" style=\"font-family: UICTFontTextStyleBody;\"></span><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><span class=\"s1\" style=\"font-family: UICTFontTextStyleEmphasizedBody;\"><b>24. We have given our thought to the matter. In our view, some material aspects which were required to be taken note of appear to have been somehow missed out at the stage of sentencing, such as the physical fitness of respondent No.1 as he was an international cricketer, who was tall and well built and aware of the force of a blow that even his hand would carry. The blow was not inflicted on a person identically physically placed but a 65 year old person, more than double his age. Respondent No.1 cannot say that he did not know the effect of the blow or plead ignorance on this aspect. It is not as if someone has to remind him of the extent of the injury which could be caused by a blow inflicted by him. In the given circumstances, tempers may have been lost but then the consequences of the loss of temper must be borne. In fact, this Court to some extent had been indulgent in ultimately holding respondent No.1 guilty of an offence of simple hurt under Section 323 of the IPC. The question is whether even on sentence, mere passage of time can result in a fine of Rs.1,000/- being an adequate sentence where a person has lost his life by reason of the severity of blow inflicted by respondent No.1 with his hands. The hand can also be a weapon by itself where say a boxer, a wrestler or a cricketer or an extremely physically fit person inflicts the same. This may be understood where a blow may be given either by a physically fit person or to a more aged person. Insofar as the injury caused is concerned, this Court has accepted the plea of a single blow by hand being given on the head of the deceased. In our view, it is this significance which is an error apparent on the face of the record needing some remedial action.</b></span></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; min-height: 22px; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><b><span class=\"s2\" style=\"font-family: UICTFontTextStyleBody;\"></span><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><span class=\"s1\" style=\"font-family: UICTFontTextStyleEmphasizedBody;\"><b>25. We would like to deliberate a little more in detail on the necessity of maintaining a reasonable proportion between the seriousness of the crime and the punishment. While a disproportionately severe sentence ought not to be passed, simultaneously it also does not clothe the law courts to award a sentence which would be manifestly inadequate, having due regard to the nature of the offence, since an inadequate sentence would fail to produce a deterrent effect on the society at large. Punishments are awarded not because of the fact that it has to be an eye for an eye or a tooth for a tooth, rather having its due impact on the society; while undue harshness is not required but inadequate punishment may lead to sufferance of the community at large</b></span></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; min-height: 22px; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><b><span class=\"s2\" style=\"font-family: UICTFontTextStyleBody;\"></span><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><span class=\"s1\" style=\"font-family: UICTFontTextStyleEmphasizedBody;\"><b>26. An important aspect to be kept in mind is that any undue sympathy to impose inadequate sentence would do more harm to justice system and undermine the public confidence in the efficacy of law. The society can not long endure under serious threats and if the courts do not protect the injured, the injured would then resort to private vengeance and, therefore, it is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. It has, thus, been observed that the punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated.</b></span></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; min-height: 22px; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><b><span class=\"s2\" style=\"font-family: UICTFontTextStyleBody;\"></span><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><b><span class=\"s1\" style=\"font-family: UICTFontTextStyleEmphasizedBody;\">27. A three Judges Bench of this Court in State of Karnataka v. Krishnappa while discussing the purpose of imposition of adequate sentence opined in para 18 that </span><span class=\"s3\" style=\"font-family: UICTFontTextStyleEmphasizedItalicBody; font-style: italic;\">“.....Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence.”</span></b></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; min-height: 22px; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><b><span class=\"s2\" style=\"font-family: UICTFontTextStyleBody;\"></span><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><span class=\"s1\" style=\"font-family: UICTFontTextStyleEmphasizedBody;\"><b>28. The sentencing philosophy for an offence has a social goal that the sentence has to be based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. While opportunity to reform has to be kept in mind, the principle of proportionality also has to be equally kept in mind.</b></span></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; min-height: 22px; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><b><span class=\"s2\" style=\"font-family: UICTFontTextStyleBody;\"></span><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><span class=\"s1\" style=\"font-family: UICTFontTextStyleEmphasizedBody;\"><b>29. Criminal jurisprudence with the passage of time has laid emphasis on victimology, which fundamentally is a perception of a trial from the viewpoint of the criminal as well as the victim. Both are viewed in the social context and, thus, victim’s rights have to be equally protected14. It would be useful to rely on the observations of this Court in Gopal Singh v. State of Uttarakhand that just punishment is the collective cry of the society and while collective cry has to be kept uppermost in mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. Thus, the principle of just punishment is the bedrock of sentencing in respect of a criminal offence. No doubt there cannot be a straitjacket formula nor a solvable theory in mathematical exactitude. An offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. Similarly, in Alister Anthony Pareira v. State of Maharashtra, the twin objective of the sentencing policy to be kept in mind was emphasised as deterrence and correction and, thus, principle of proportionality in sentencing a convict were held to be well entrenched in the criminal jurisprudence.</b></span></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; min-height: 22px; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><b><span class=\"s2\" style=\"font-family: UICTFontTextStyleBody;\"></span><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><span class=\"s1\" style=\"font-family: UICTFontTextStyleEmphasizedBody;\"><b>30. We may also take note of the recent judgment of this Court decided by a three Judges bench on 18.04.2022 in Jagjeet Singh & Ors. v. Ashish Mishra @ Monu & Anr. albeit, on the issue of bail. It emphasised the victim’s right to be heard. What is relevant for us to note is that the victim being the de facto sufferer of a crime had no participation in the adjudicatory process. The current ethos of criminal justice dispensation to prevent and punish crime had surreptitiously turned its back on the victim. No doubt in the present case at every stage the victim has been heard and the present application is also by the victim. The near and dear ones whether as guardians or legal heirs are required to be treated as victims.</b></span></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><span class=\"s1\" style=\"font-family: UICTFontTextStyleEmphasizedBody;\"><b><br>34. The US Supreme Court has also moved in the same direction in Payne v. Tennessee while examining the aspect of the “victim impact statement” in a case of capital offence at the time of sentencing. The court considered the aspect from the dissenting judgment in the case of Booth v. Maryland which emphasized on “reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.” The words of Justice Benjamin Cardozo in Snyder v. Massachusetts bring out that “justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.”</b></span></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; min-height: 22px; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><b><span class=\"s2\" style=\"font-family: UICTFontTextStyleBody;\"></span><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><span class=\"s1\" style=\"font-family: UICTFontTextStyleEmphasizedBody;\"><b>35. Thus, a disproportionately light punishment humiliates and frustrates a victim of crime when the offender goes unpunished or is let off with a relatively minor punishment as the system pays no attention to the injured’s feelings. Indifference to the rights of the victim of crime is fast eroding the faith of the society in general and the victim of crime in particular in the criminal justice system.</b></span></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; min-height: 22px; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><b><span class=\"s2\" style=\"font-family: UICTFontTextStyleBody;\"></span><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><span class=\"s1\" style=\"font-family: UICTFontTextStyleEmphasizedBody;\"><b>36. We noticed the aforesaid judgments to repel the contention of learned senior counsel for the respondent that the victim should have no say in the matter of enhancement of sentence.</b></span></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; min-height: 22px; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><b><span class=\"s2\" style=\"font-family: UICTFontTextStyleBody;\"></span><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><span class=\"s1\" style=\"font-family: UICTFontTextStyleEmphasizedBody;\"><b>37. In a nutshell, the aspects of sentencing and victimology are reflected in as the person dispensing justice as per Dharmashastra should prescribe a penance appropriate to the age, the time and strength of the sinner, the penance being such that he may not lose his life and yet he may be purified. A penance causing distress should not be prescribed.</b></span></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; min-height: 22px; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><b><span class=\"s2\" style=\"font-family: UICTFontTextStyleBody;\"></span><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><span class=\"s1\" style=\"font-family: UICTFontTextStyleEmphasizedBody;\"><b>38. We are not setting forth much about how the investigation proceeded initially, how the court had to intervene to see that the relevant people are charged, the manner of leading of evidence, the hesitancy of doctors all of which weighed in this Court opining that a case beyond reasonable doubt could be only of one under Section 323 of the IPC. We do believe that the indulgence was not required to be shown at the stage of sentence by only imposing a sentence of fine and letting the respondent go without any imposition of sentence.</b></span></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; min-height: 22px; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><b><span class=\"s2\" style=\"font-family: UICTFontTextStyleBody;\"></span><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><span class=\"s1\" style=\"font-family: UICTFontTextStyleEmphasizedBody;\"><b>39. The present case is not one where two views are possible such that review should not be exercised. It is a case where some germane facts for sentencing appear to have been lost sight of while imposing only a fine on respondent No.1 and, therefore, no question of choosing between two possible views arises. </b></span></p><p class=\"p2\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; min-height: 22px; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><b><span class=\"s2\" style=\"font-family: UICTFontTextStyleBody;\"></span><br></b></p><p class=\"p1\" style=\"margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-stretch: normal; font-size: 17px; line-height: normal; -webkit-tap-highlight-color: rgba(26, 26, 26, 0.3); -webkit-text-size-adjust: auto;\"><span class=\"s1\" style=\"font-family: UICTFontTextStyleEmphasizedBody;\"><b>40. The result of the aforesaid is that the review applications/petitions are allowed to the aforesaid extent and in addition to the fine imposed we consider it appropriate to impose a sentence of imprisonment for a period of one year rigorous imprisonment to be undergone by respondent No.1. The parties are left to bear their own costs.</b></span></p>', '71b6aa7e16a308c699c2cdb16ad85c72.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-19', 1, '', '', '2022-05-20 03:05:07', '2022-05-21 03:41:19');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1713, 'e9SXxlKBjHQHjt0526RH3MMvI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Electricity companies must insure power lines and equipments against any act of nature and claims arising out of electrocution of persons or destruction of crops. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Managing Director Hescom and others vs Laxmi Irappa Mudalagi and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 84468 of 2013 decided on 16 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Sri.B.S.Kamathe, learned counsel for the petitioners assails the compensation granted by the permanent Lok-Adalath to the respondents on account of the husband of respondent No.1 and son of respondents No.2 and 3 having expired due to electric shock.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. He submits that as per the report submitted by the inspector, the deceased is stated to have climbed up the pole where the transformer had been situated and had been taken out for repair. He had climbed up the electric pole in order to connect the electricity to his house illegally and unauthorisedly. This aspect has not been taken into consideration by the permanent Lok-Adalath in a proper perspective. Therefore, there being negligence on account of the deceased, there is no compensation which is liable to be paid by  the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Per contra, Sri.Vishwanath V. Badiger, learned counsel for the respondents submits that the contention of the petitioner is based on a report of the inspector after he having inspected the spot post ten days of the incident. There is no eyewitness or any other evidence in support of the said report. He further submits that this aspect has been properly delt with by the permanent Lok-Adalath and the permanent Lok- Adalath coming to conclusion that the report of the inspector is not supported by  the postmortem report has rejected the above contention. And on this basis he submits  that  the petition is completely mis-concealed and is liable to be dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. The issue raised by Sri.B.S.Kamathe has been considered by the permanent Lok-Adalath in as much as Exibit P5 being the medical post mortem report has mentioned that the cause of death is electric short circuit injuries and complications thereof. The postmortem report does not indicate any injuries to the limbs of the deceased and as such the permanent Lok- Adalath has come to a conclusion that if at all  the case of the HESCOM was to be believed and  if the deceased has fallen from the top of the transformer, several other injuries ought to have occurred which are not reflected in the post mortem report. The only injuries are deep burns on the body of the deceased and therefore, the permanent Lok-Adalath rejected the said story and defense on part of the petitioners. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. Permanent Lok-Adalath has also taken into consideration the earning of the deceased, the wage of the deceased and by applying the principles laid down as regards compensation in respect of motor vehicle accident has awarded a compensation of Rs.5,02,000/-. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. In view of the said matter, I do not find any infirmity in the order of the permanent LokAdalath. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. There are several cases which come up before this Court as regards compensation awarded to third parties more often they are farmers who  are electrocuted either suffering permanent disability or death on account of such events, these claims have more often then not contested by the HESCOM contending that they are not liable to make payment of the compensation. That apart the HESCOM always come up with an argument that the HESCOM being a public authority and a public sector undertakings, any compensation awarded would be from and out of the public money. Therefore, imploring this Court to reduce the compensation or to negate the compensation. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. I am of the considered opinion that when the HESCOM can insure its equipments as against any act of nature or the like. It is high time that the HESCOM also insures the power lines so as  to cater to any claim which comes about on account of the malfunction and are electrocution due to various reasons including the wires falling down and electrocuting persons or destroying crops or injuries caused due to burst of transformers, etc. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. Writ Petition No.84468/2013 is dismissed. Writ Petition No.77772/2013 is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '94038b300973179c189e27ec43cf3429.jpeg', 'c734e1daac2c11549311596b0ae77f0d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-21', 1, '', '', '2022-05-20 22:17:17', '2022-05-21 09:50:25'),
(1714, '7Zg7A7h29isRW13cK31WBUK8k', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Gyanvapi dispute. Shivaling area shall continue to be protected until further orders of the District Court in the suit. Supreme Court. ', '<p><b>On 17 May 2022, the Supreme Court while dealing with the order of the\r\nTrial Judge directed that the operation and ambit of the order dated 16 May 2022 shall stand\r\nrestricted to the extent that the District Magistrate, Varanasi shall ensure that\r\nthe area where the Shivalinga is stated to have been found, as indicated in the\r\norder, shall be duly protected.</b></p><p><b>On 20 May 2022 the Supreme Court continued this interim order saying that \"The interim order of this Court dated 17 May 2022 shall continue to remain\r\nin operation pending the disposal of the application under Order VII Rule\r\n11 CPC and thereafter for a period of eight weeks so as to enable any\r\nparty which is aggrieved by the order of the District Judge to pursue its\r\nrights and remedies in accordance with law\"</b></p><p><b>See today\'s order in PDF form.&nbsp;</b></p><p> </p>', '028cbac13f938e4aa7de3da2da60e62a.JPG', 'eb944f4347596df5d8c18a0595cde175.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-20', 1, '', '', '2022-05-21 03:28:03', '2022-05-21 03:28:03'),
(1715, 'XlPFvXgaMiS0mz860jlB9Ppm8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Call received on Police helpline disclosing cognizable offence shall also be considered as information for registering FIR. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ganesh S. Hegde Vs The State of Karnataka Department of Home Affairs and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 100746 of 2022 decided on 8 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The grievance of the petitioner is that, the petitioner on 20.01.2022, at about 10.00 a.m. on account of his sister and her husband having entered the property of the petitioner with 30 gunda elements and removed the standing Areka Nut crop by force and threatened. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The petitioner immediately called the respondent No.4 over telephone however no action was taken. Despite the first information having been provided, no complaint was registered. Hence, the petitioner called the police helpline No.112 and informed about the non-cooperation of the 4th respondent and for registration of FIR, despite which no action has been taken. Subsequently, the petitioner approached respondent No.3 the Deputy Superintendent of Police, requesting him to initiate action.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 4. The Deputy Superintendent of Police had directed the 4th respondent Inspector of Police to take action despite which the 4th respondent has not registered a complaint, but called upon the petitioner and his sister to come to the Police Station along with the documents relating to the property for the purpose of enquiry. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. It is on the above basis, the petitioner is before this Court contending that, the respondents have not registered an FIR in pursuance of first information provided by the petitioner and therefore, his rights have been violated so also the procedure  prescribed by the Apex Court in the case of Lalita Kumari Vs. Government of Uttar Pradesh and others, reported in (2014) 2 SCC 1. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Sri. Narayan V. Yaji, learned counsel for the petitioner would submit that, since the petitioner had informed the 4th respondent and or the Police helpline about the commission of a cognizable offence, an FIR ought to have been registered which till date has not been registered. On this ground, he submits that, the relief as sought is required to be granted.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. Sri. Shivaprabhu Hiremath, learned AGA would however submit that, there is no call received by the 4th respondent, a call was made only to the police helpline No.112, the operator had informed the person attending the emergent call in the sub- police station, who in fact had visited the spot and having found that there are some disturbance had directed the persons present there not to cause any nuisance and had asked them to attend to Police Station along with the documents of the disputed property. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. Though the petitioner’s sister attended to the enquiry along with the possession receipt and Judgment copy, the petitioner did not attend to the enquiry and as such his complaint was not registered. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. He further submits that, the petitioner directly approached the Office of the Deputy Superintendent of Police the respondent No.3, complaining about the trespass to the land when respondent No.3 forwarded the same to the respondent No.4 seeking for a report in the matter. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. After receipt of the information from respondent No.3, despite respondent No.4 making various phone calls to the petitioner, the petitioner did not come forward or assist in the enquiry, therefore, no action has been taken, the writ petition has filed is misconceived and no relief can be granted in the present matter. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. These being the submissions by both the counsels, the point that would be required to be determined by this Court is “Whether on information being received, either on the police helpline or directly to a police station, the concerned Officer can carryout a enquiry, requiring the complainant to attend an enquiry before registering of a complaint?”<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. This aspect is no longer a res integra. The Apex Court in the case of Lalita Kumari’s case (supra) has extensively dealt with the matter and has concluded on the applicability and the procedure to be followed as also issued various directions.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. A perusal of the above indicates that, whenever any information is received disclosing a commission of a cognizable offence, there is no preliminary enquiry which is permissible and FIR is required to be registered by the person receiving information. It is only when the information received does not disclose a cognizable offence, a preliminary enquiry could be conducted to ascertain if there is a cognizable offence committed or not. If the enquiry discloses the commission of a cognizable offence an FIR must be registered. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. These being the categorical findings of the Apex Court, applying the same to the present case, there was a call alleged to have been made by the petitioner to the respondent No.4 complaining about the trespass by his sister, her husband and 30 gunda elements into his property and the removal of the standing Areka Nut crop in the said property. This aspect is denied by the respondents. However, it is admitted that there was a call made to the police helpline Number on “112”, informing the said police helpline about the trespass and removal of Areka Nut. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. Once, such an information has been provided by any citizen to the police helpline or to the police station and that information discloses the commission of a cognizable offence as in this case, inasmuch as the trespass into the property of the petitioner and removal of Areka Nut is a cognizable offence in terms of Sections 441 and 427 of the Indian Penal code. The information disclosing the offence ex facie being cognizable there was no enquiry which was required to be conducted as sought to be contended by the learned AGA. The decision of the Apex Court in the case of Lalita Kumari (supra) is very clear. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. The Apex Court has also stated that in the event of a Police officer not registering the offence when a cognizable offence is disclosed, action must be taken against the erring officials, who do not register an FIR.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a) A Mandamus is issued, directing the respondent No.2 to consider the representation of the petitioner dated 01.02.2022 and register the FIR in pursuance of the complaint submitted by the petitioner on 20.01.2022 and thereafter investigate the matter.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(c) With the above observation, the writ petition stands allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4f9be5152091f766905c547be318cd28.jpeg', 'ac7f3e9a101b1ce8251a03d36e006179.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-24', 1, '', '', '2022-05-23 16:48:20', '2022-05-24 04:55:36'),
(1716, 'd8Zi5C9RSqXLRzxZL3D5z8JOP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'One of the parties to a contract cannot delay appointment of Arbitrator by adopting multi-layered methodology to be gone through by the other party before invocation of Arbitration clause. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Nsure Reliable Power Solutions Pvt Ltd Vs Hubli Electricity Supply Company Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Misc Petition 100009 of 2022 decided on 21 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The Petitioner a Private Limited Company, being a startup enterprise engaged in the business of infrastructure, had participated in the tender floated by the Respondents and thereafter entered into a contract with the Respondent on being declared  as the successful bidder. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The dispute between the Petitioner and the Respondents is that the Petitioner having been declared successful bidder, a letter of intent having been issued and a contract entered into on 28/03/2018, within a period of fewer than two  months on 18/05/2018, the Respondents had issued  a notice cancelling the contract unilaterally. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. The Petitioner earlier had approached this Court in writ petition No.114450/2019, which came to be allowed and the Petitioner was permitted to execute the contract. Thereafter the Petitioner made a representation to the Respondents on 27/05/2021 requesting permission to execute the contract. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. However, the Respondents had, on 16/06/2021,  called upon the Petitioner to show cause why the contract in question and all the subsequent action taken under the said contract should not be terminated, on account of the alleged defaults of conditions by the Petitioner. The Petitioner replied to the same on 30/06/2021,but without considering the said reply, Respondent No.2 is stated to have passed an order of termination of the contract on 15/07/2021. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. It is in this context that the disputes have arisen and as such the Petitioner issued a notice on 17/11/2021 calling upon the Respondent to make good the damages suffered by them and called upon the Respondents to make payment of the same. No response was received for the said notice, despite Respondent No.1 having received the notice. Respondent No.2 had however refused to accept the notice and the same was returned to the sender. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. Hence the Petitioner caused another notice dated 29/11/2021, this time invoking the arbitration clause and nominating an arbitrator on behalf of the Petitioner and seeking concurrence within a period of 30 days, failing which the Petitioner would approach this Court under Section 11 of the Arbitration and Conciliation Act, 1996(hereinafter referred to as ‘A & C Act’, for brevity).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. The Respondent has replied to the same on 03/02/2022, contending that, in terms of Clause 38  of the General Conditions of Contract (‘GCC’ for short), there is an agreed methodology of resolution of the disputes and it is this methodology which is required to be adopted and since the Petitioner has not gone through the entire methodology, the appointment of an Arbitrator would not arise and as such, rejected the request of the Petitioner. It is in that background that the Petitioner is before this court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>29. It is only after the said procedure is followed  that  under GCC clause No. 39, the matter may be referred  to arbitration conducted by three arbitrators, one each is to be nominated by the contractor and the employer and the third to be nominated by the arbitrator in accordance with Indian Arbitration Act,  1940.  Again the reference made is to the Indian  Arbitration Act,1940 and not the Arbitration and Conciliation Act 1996, which establishes a lack of application of mind and or that a clause which had been drafted pre A & C Act coming to force is applied post the A & C Act coming into force. This can also be gathered by a further reference to 60 days for the other party to appoint its arbitrator when in terms of the A & C Act  the time period provided is 30 days. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>30. In the aforesaid circumstances, as also in  the  peculiar facts and circumstances of the case, where a contract is entered into between the Petitioner and Respondents has been terminated within less than 60 days of the execution thereof and despite this Court ordering the Respondents to permit the Petitioner to discharge his obligation, the same also not having been permitted and the Respondents not permitting the Petitioner to resort to arbitration and continuing  to delay the same, I am of the considered opinion  that the very purpose, intent and motive behind the introduction of the Arbitration and Conciliation Act, 1996 is lost.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>33. In the present case, in my considered opinion for the reasons pointed out above, GCC Clause No. 38 and 39 are neither fair nor efficient inasmuch as the  procedure prescribed for the employer is different  from that of the contractor, there is wanton discrimination of the contractor vis-à-vis the  employer. The employer occupies a superior position and having drafted the GCC including the dispute resolution clause, which includes the arbitration  clause. The clause is inefficient inasmuch as the contractor is made to go through a multi-layered delay mechanism to invoke the Arbitration Clause, thus delaying the very invocation thereof, thereby bringing about an inefficiency for the contractor to invoke and obtain necessary remedies, apart  therefrom  the dispute is left to simmer for such a long time, which is not in the interest of speedy resolution of disputes, making the mechanism inherently inefficient. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>34. For all the aforesaid reasons I’am of the considered opinion that GCC Clause no. 38 and 39 being one- sided, the employer cannot delay the contractor in obtaining any relief. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>35. The contention of the learned counsel for the Respondents is that Section 11 of the Act refers to and entitles the parties to agree on a procedure for appointing the arbitrator/arbitrators, the agreed procedure is in terms of GCC clause no. 38 and it is only after that procedure in GCC clause no. 38 is complied with, that under GCC clause no. 39 invocation of arbitration could be made by the contractor. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>36. In my considered opinion, the procedure which is referred to in Sub-Section (2) of Section 11 of the Act, provides only the procedure for appointing the arbitrator/arbitrators and does not include the procedure prior to the  appointment of an arbitrator.  In my considered opinion, the aspect of raising an internal dispute by one of the parties for an amicable settlement, the decision of one of officers of the employer on the dispute is not that which is referred  to under Sub-Section (2) of Section 11. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>37. The very purpose of the A & C Act is to enable a party to invoke an arbitration clause at the earliest and for the arbitration to be completed at the earliest. This, intent and purport of the Act cannot be sought to be frustrated by any of the parties by requiring the other to follow a convoluted methodology, which would only delay the invocation of the arbitration clause and frustrate the remedy available to one of the parties. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>38. The UNCITRAL model of arbitration was adopted in our country so as to enable speedy reference to arbitration and speedy arbitration. If the present GCC Clause no. 38 is anything to go by, the same would frustrate the purport intent and requirement of the A & C Act, inasmuch as invoking of Arbitration clause itself is delayed by a period of at least 180 days, when any arbitration proceedings is required to be completed within one year of the filing of the claim petition. If there was no such clause as in GCC no. 38 or 39, the Petitioner herein who is the contractor could have approached the civil court on the very first day of the dispute, without waiting for any time. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>39. The delay in arbitration proceedings is firstly, in the invocation of the arbitration clause secondly, in the appointment of an arbitrator and thirdly, in the arbitration proceedings. By way of several amendments, now there is a time limit prescribed for an arbitrator to dispose  of arbitral proceedings viz., 12 months from the date on which the pleadings are complete. But in the present case, the invocation of the arbitration itself is delayed by at least 180 days, </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>40. The dispute having arisen on 18.05.2018, the Petitioner has approached this Court on 21.02.2022 and the appointment of an arbitrator has been pending till now. Furthermore, the dispute between the parties arose on 18.05.2018 and the contractor has been made to run from pillar  to post without even as much as commencing the arbitral proceedings as regards which the main culprit is the GCC Clause No.38, which has led to the delay. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>41. I am of the considered opinion that in all disputes governed by the arbitration clause it is but required that an arbitrator is appointed at the earliest and all aspects are left open to be decided by the arbitrator so appointed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>42. In view of the above, I do not find any merit in the submission made by the learned counsel for the Respondents, that the procedure under GCC Clause no. 38 is required to be completely followed for their invoking of Arbitration clause in GCC Clause no. 39. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>43. Hence I answer the question raised by holding that one of the parties to the contract cannot delay the appointment of an Arbitrator on the ground that the dispute resolution clause provides for a multi-layered methodology which needs to be gone through before invocation of the Arbitration clause. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>44. Assuming that such a convoluted multi-layered dispute resolution clause is to be considered valid, I will now consider if the requirements of GCC Clause no. 38 has been followed or not in the present case.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>45. Admittedly the contract was entered into on 28.03.2018, within a period of fewer than two months on 18.05.2018, the Respondents had issued a notice cancelling the contract unilaterally, it is to  be noted that the dispute was not raised by the contractor but the termination of the contract was made by the employer by raising a dispute. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>46. As noted above in pursuance of the order of this Court in writ petition No.114450/2019, Petitioner made a representation to the Respondents on 27.05.2021 requesting permission to execute the contract. However, the Respondents had, on 16.06.2021, called upon the Petitioner to show cause why the contract should not be terminated. The Petitioner replied to   the same on 30.06.2021, Respondent No.2  is stated to have passed an order of termination of the contract on 15.07.2021. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>47. The Petitioner issued a notice on 17.11.2021 calling upon the Respondent to make payment of the damages suffered. No response was received for the said notice. The Petitioner invoked the arbitration clause vide notice dated 29.11.2021. The Respondent replied to the same on 03.02.2022, contending that  the requirement of GCC Clause no. 38 has not been followed and hence the notice is premature. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>48. There is no denial of the existence of a dispute between the parties, the disputes as aforesaid raised by the respondent is that the present petition is premature in as much as the procedure under GCC Clause no. 38 has not been followed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 49. As noted above it is the Respondent who terminated the contract, despite the orders of this court the Petitioner was not permitted to carry out the works despite giving a representation, hence the  question  of any amicable settlement talks taking place or otherwise would not arise.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>50. Instead the respondent issued a show-cause notice which was replied to and the respondent issued the order of termination. Thus there is an order passed  by the respondent which satisfies the requirements of GCC Clause no. 38.2, entitling the Petitioner to invoke the Arbitration clause.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Order: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>iv. The Arbitral tribunal once constituted would be free to fix its fees and calendar of events as per the A & C Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '35dc40fd260ce0966acea55739bdd776.jpeg', '575f209086b388f8c73e3a6ca2b912ac.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-23', 1, '', '', '2022-05-23 17:58:23', '2022-05-23 16:01:55');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1717, 'bGEoZwLJMY2f9hldE2t96fhXe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Supreme Court permits sale/export of already excavated iron ore in the State of Karnataka. Lifting of ceiling limit for production of iron ore deferred. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Samaj Parivartana Samudaya and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 562 of 2009 decided on 20 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice N.V. Ramana, Justice Krishna Murari and Justice Hima Kohli.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The present writ petition was filed under Article 132 of the\r\nConstitution of India over two decades ago, seeking directions to the\r\nrespondent No. 1/State of Karnataka, respondent No. 2/State of Andhra\r\nPradesh and respondent No.3/Union of India to stop all mining and\r\nrelated activities in the forest areas of Karnataka and Andhra Pradesh\r\nbeing carried out and in violation of the order dated 12.12.1996, passed <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by this Court in T.N. Godavarman Tirumulpad v. Union of India1 and\r\nthe Forest (Conservation) Act, 1980.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Directions were also sought to be issued to the respondents/States\r\nand the Union of India to declare all mining contracts/sub-leases issued\r\nin violation of the Mines and Minerals (Development and Regulation) Act,\r\n1957 as illegal and take penal actions against the violators. The third\r\nprayer made was for directing stoppage of all mining activities along side\r\nthe border and within the forest areas in the Bellary Reserve Forest.\r\nLastly, directions were sought to declare Notification dated 15.03.2003\r\nand other related Notifications dereserving lands for mining operations,\r\nas null and void.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The CEC submitted a report, termed as the “Final Report” dated\r\n03.02.2012, making several recommendations one of which was to\r\ncategorise the mines into three categories based on the extent of\r\nencroachment in respect of the mining pits and overburden dumps,\r\ndetermined in terms of percentage qua the total lease area. Three\r\ncategories of the mines were suggested as ‘A’, ‘B’ and ‘C’. Another\r\nrecommendation made by the CEC was relating to the conditions\r\nproposed for reopening of mining and resumption of the mining\r\noperation for this Court to consider as part of the Reclamation and\r\nRehabilitation Plans. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. Coming to the directions issued by this Court regarding the sale of\r\nexisting stock of iron ore extracted through illegal mining, vide order\r\ndated 23rd September, 2011, this Court had directed disposal of the\r\naccumulated iron ore through the process of e-auction conducted by the\r\nMonitoring Committee and had further constituted a ‘Special Purpose\r\nVehicle’3\r\n in terms of the order dated 29th October, 2012, for taking\r\nameliorating and mitigating measures as per the “Comprehensive\r\nEnvironment Plans for the mining Impact Zone”4\r\n around the mining\r\nleases in three Districts of the State of Karnataka with directions issued\r\nto the Monitoring Committee to provide the payment received by it to the\r\nSPV in that regard.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Highlighting the reason behind constituting the Monitoring\r\nCommittee and the role attributed to it for the sale of iron ore through eauction and further, observing that the connected aspect of lifting of the\r\ncap or enhancing the cap on production and launching of the CEPMIZ\r\nscheme, was still under consideration, this Court had rejected the\r\naforesaid application filed by FIMI South vide order dated 28th August,\r\n20175\r\n, opining that time had not yet come to dispense with the existing\r\npolicy of sale and purchase of iron ore in the State of Karnataka through\r\nthe Court appointed Monitoring Committee by e-auction and for grant of\r\npermission to sell the iron ore on a direct sale basis through long term\r\ncontracts or through spot sale and that restoration of ‘Normalcy’ in the\r\nsale and purchase of iron ore must be deferred till significant headway is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">made in respect of the other connected aspects noticed in the Final\r\nOrder dated 18th April, 2013.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. The CEC has submitted Report No. 3 of 2022 dated 10th April,\r\n2022 in response to the directions issued by this Court on 30th March,\r\n2022. After referring to the earlier reports submitted by it from time to\r\ntime, it has been stated that only a temporary ban on exports was\r\nimposed by this Court at a critical time when mining operations were\r\nrestricted in the State of Karnataka and that it was never the intention of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">this Court to restrict the mining operations for all times to come; that sale\r\nthrough e-auction conducted through the Monitoring Committee had\r\nachieved its objective and it was no longer necessary to continue with\r\nthe same dispensation in view of the improvement in the situation. Citing\r\nthe information furnished by the Monitoring Committee relating to the\r\nclosing balance of stock available in category ‘A’ ‘B’ and ‘C’ as on 31st\r\nMarch, 2022, that adds up to 1,19,47,839.3 MT, the CEC has\r\nrecommended vacation of the orders passed by this Court directing sale\r\nof iron ore through e-auction to be conducted by the Monitoring\r\nCommittee with a rider that the said procedure continue to be adopted\r\nfor the sale of balance of old stock of iron ore including sub grade iron\r\nore available on the date of imposition of the ban. It has been suggested\r\nthat all the balance old stock be sold through e-auction before the end of\r\nJuly, 2022 and if any stock is left unsold, only then should the lessee be\r\npermitted to dispose it of without adopting the e-auction process.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. We have considered the argument advanced by learned counsel\r\nfor the parties, perused the latest report of the CEC and the Monitoring\r\nCommittee, examined the stand of the Ministry of Steel and Ministry of\r\nMines, Union of India as also of the State of Karnataka. The data placed\r\nbefore us by the respective parties in their applications under\r\nconsideration has also been scanned. For the present, we propose to\r\nconfine the scope of this order to examining the twin prayers made by\r\nlearned counsel for the applicants namely, permission to sell the unsold\r\nstock of iron ore already excavated without resorting to the process of eauction conducted through the Monitoring Committee and for lifting the\r\nban on export of iron ore/pellets from the districts of Bellary, Chitradurga\r\nand Tumkur situated in the State of Karnataka. Although certain\r\nsubmissions were made by the parties regarding lifting of the ceiling limit\r\nfor total production of iron ore, at this juncture we are not inclined to\r\ndecide the said issue.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. On glancing over the earlier orders passed by this Court, evidently\r\nit was on account of the rampant illegal mining that had been taking\r\nplace in the State of Karnataka and had severely impacted the ecology\r\nof the region that the Court was compelled to impose a blanket ban on\r\nmining operations in three specific districts. Post imposition of the ban,\r\nthe Court was confronted with a situation where a huge stock-pile of iron\r\nore had accumulated in the mines and stock yards that needed to be\r\ndisposed of. Accordingly, a transparent process of e-auction was\r\nadopted on the recommendations of the CEC with a further direction that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the sale proceeds would be placed in a separate account pending\r\nsettlement of ownership rights over such stock of iron ore. This mode\r\nhas been consistently adopted for sale of the stock of excavated iron ore\r\nunder the aegis of the Monitoring Committee that was called upon to\r\ndeduct 10% of the sale value in respect of all the category ‘A’ and ‘B’\r\nmines and 20% of the sale value in respect of two mines owned by\r\nNMDC Limited, for being deposited in the SPV accounts towards\r\nimplementation of the CEPMIZ. Report 3 of 2022 submitted by the CEC\r\nrecords that the collection in the SPV maintained by the Monitoring\r\nCommittee as on 31st March, 2022, has crossed 20,000 crores which ?\r\namount would be adequate to meet the expenses connected with the\r\nactivities proposed to be undertaken under the CEPMIZ.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. The Ministry of Steel, Union of India has supported the\r\napplications moved by the interveners and submitted that the mining\r\nscenario has improved considerably since the year 2018 and in that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">background, the Court may consider treating the mines situated in the\r\nState of Karnataka equal to those situated in the rest of the country\r\nsince that would permit inter-state trade of iron ore mined in the State of\r\nKarnataka, which is presently prohibited. The Ministry of Mines has also\r\ngiven its no objection to export of iron ore to other countries in terms of\r\nthe prevalent policy of the Government of India.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">29. We are in broad agreement with the stand taken by the Ministry of\r\nSteel, Union of India and Ministry of Mines that it is necessary to create\r\na level playing field for the mines situated in the districts of Bellary,\r\nChitradurga and Tumkur with others situated in the rest of the country.\r\nAs the CEC has indicated, the demand/supply and price of iron ore are\r\nbest left to be determined by the market forces. This Court is of the\r\nopinion that the time has come to review the system that was put in\r\nplace over a decade ago, on halting the unchecked excavation of iron\r\nore in the three prime Districts in the State of Karnataka. Ever since\r\nthen, e-auction has been the only mode available for disposal of the\r\nexcavated iron ore. The said arrangement has worked out satisfactorily\r\nso far. The situation that was prevalent in the region prior to the year\r\n2011, has now changed for the better. Having regard to the course\r\ncorrection that has taken place, the regeneration post the ruinous\r\ndamage caused to the environment and the various steps taken by the\r\nGovernment, we are of the opinion that the order passed on 23rd </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">September, 2011 deserves to be relaxed. Additionally, it is a matter of\r\nrecord that consecutive e-auctions conducted by the Monitoring\r\nCommittee have been receiving a poor response and sale of iron ore\r\neven at the reserve price is dismally low. Looking at the overall change\r\nin the outlook, the restrictions placed on the manner of conducting the\r\nsale of iron ore and fixation of the sale price need to be removed.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>30. Keeping in mind all the aforesaid factors, we are inclined to\r\nfavourably consider the prayer made by the applicants and grant them\r\npermission to sell the already excavated iron ore stock-pile at various\r\nmines and stock yards located in the Districts of Bellary, Tumkur and\r\nChitradurga in the State of Karnataka, without having to resort to the\r\nprocess of e-auction. Permission is granted to the applicants to enter\r\ninto direct contracts to lift the excavated iron ore through inter State\r\nsales. We also grant permission to the applicants to export the iron ore\r\nand pellets manufactured from the iron ore produced from the mines\r\nsituated in the State of Karnataka, to countries abroad, as is being done\r\nin the rest of the country, but strictly in terms of the extant policy of the\r\nGovernment of India.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32. With respect to the submissions of the parties in relation to the\r\nlifting of the ceiling limit for production of iron ore for mining leases in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Districts of Bellary, Chitradurga and Tumkur, we are of the considered\r\nopinion that it would be expedient to obtain an opinion from the\r\nOversight Authority appointed by this Court vide order dated 21st April,\r\n2022 about the same before deciding the said issue. We request the\r\nOversight Authority to take inputs from the stakeholders, including the\r\nCEC and the Monitoring Committee, and to send his opinion to this\r\nCourt preferably within a period of 4 weeks.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '055aa19fa7786f6d9447b65f82779621.jpeg', 'a65af74e27571b9603265b345b01db8e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-24', 1, '', '', '2022-05-23 19:34:19', '2022-05-24 06:26:33'),
(1718, 'jQUjzFigz1SkyerqklPd1Ou7g', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Rule that accused is entitled to access report/documents only after Magistrate takes cognizance in terms of Section 207, Cr.P.C. is not absolute. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>S.P. Velumani Vs Arappor Iyakkam and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 867 of 2022 decided on 20 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice N.V. Ramana, Justice Krishna Murari and Justice Hima Kohli.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The brief facts necessary for adjudication of this dispute are as follows: the appellant was a Cabinet Minister in the State of Tamil Nadu  from 2014. On 11.09.2018, one Mr. R.S. Bharathi filed a complaint with the Directorate of Vigilance and Anti­Corruption. He also filed a criminal petition before the Madras High Court, being Crl.O.P. No. 23428 of 2018. On the very next day, respondent No.1 filed a complaint before Director, Directorate of Vigilance and Anti­Corruption and SP, Anti­Corruption Bureau, CBI.  As no  action  was forthcoming  by  the  aforesaid  Authorities, respondent No.1 filed a writ petition registered as WP No. 34845 of 2018 before the High Court seeking, inter alia, a mandamus directing the Director, Directorate of Vigilance and Anti­Corruption to register an FIR on the basis of the complaint lodged by him and to constitute an SIT for the purpose of investigation. It may be necessary to note that both, the writ petition and Crl.O.P., were tagged and heard together.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Broadly, the allegation against the appellant is that while he was serving as a Minister, he is alleged to have misused his powers to  influence the tender process and ensured that tenders were awarded to his close aides.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. As the matter stood thus, there was a change in the political dispensation of the State Government. Interestingly, the State, while   relying upon a CAG report, subsequently recanted from its earlier stand.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. Relying on the aforesaid observations, the State registered an FIR, being FIR No.16/2021 dated 09.08.2021, against 17 accused persons, including the appellant herein under Section 120B r/w Sections 420 and 409 of the IPC and Section 13(2)r/w Sections 13(1)(c) and 13(1)(d)  of the Prevention of Corruption Act, 1988 r/w Section 109 of the IPC.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>18. Having heard learned counsel for the parties and on perusing the documents available on record, we may note that the facts of this case are clear. Initially, a private complaint was filed by respondent No.1 and thereafter, a writ petition was filed by him seeking investigation into the allegations made in the complaint.  When the matter was taken up by the High Court, it directed an enquiry by a responsible officer, Ms. Ponni, Superintendent  of  Police,  Director  of  Vigilance  and Anti­Corruption. Accordingly, the Court appointed  officer submitted her preliminary enquiry report to the Director of Vigilance and Anti­Corruption, who in turn submitted a final report  before the High Court in a sealed cover.  In the meanwhile, the Government took a decision to close the case based  on   the   aforesaid  report submitted by the Court appointed officer.  Rather than deciding this issue, the High Court adjourned the matter by a month. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>19. However, it appears that due to various reasons, the matter could not be listed until 19.07.21. In the meanwhile, the State Government had changed. In a turn of events, the State Government went back on their earlier stand to close the criminal case.  Instead, the State Government submitted before the High Court that they intended to conduct further investigation in the aforesaid matter. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>20. In our considered opinion, the High Court has committed a patent error in not taking the matter to its logical conclusion. Without considering the material before it, and by merely relying on the submissions made by the learned counsel for the State, the High Court has made sweeping observations <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which are prejudicial to the appellant. It was the High Court which had ordered that a preliminary enquiry be conducted and a report be submitted by the special investigating officer. However, once the enquiry was completed, the High Court failed to even peruse the said report. Rather, the High Court left the decision completely in the hands of the State Government. Such an approach, as adopted by the High Court in the present matter, cannot be countenanced in law. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>21. It is a settled principle that the State cannot blow hot and cold at the same time. When the State Government changed its stand, the High Court neither provided the appellant an opportunity to defend himself, nor sought a reasoned justification from the State for having turned turtle. Although the High Court directed the appellant to file a counter affidavit in the writ proceedings, the State hastened to register the aforesaid FIR on 09.08.2021.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>24. Learned counsel for the State has contended that the accused would be entitled to access the report only after the Magistrate takes cognizance in terms of Section 207 of the CrPC.  He has relied on In Re: Criminal Trials Guidelines Regarding Inadequacies and  Deficiencies   v.   State   of Andhra Pradesh & Others, (2021) 10 SCC 598 to contend that the accused is entitled to seek documents only in terms of section 207 of  the  CrPC and any production of the documents beyond the ambit of aforesaid section, is untenable in law.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>26. We may note that the  contention of the State may be appropriate under normal circumstances wherein the accused is entitled to all the documents relied upon by the prosecution after the Magistrate takes cognizance in terms of Section 207 of CrPC.However, this  case is easily distinguishable on its facts. Initiation of the FIR in the present case stems from the writ proceedings before the High Court, wherein the State has opted to re­examine the issue in contradiction of their own affidavit and the preliminary report submitted   earlier   before the High Court stating that commission of cognizable offence had not been made out. It is in this background we hold that the mandate of Section 207 of CrPC cannot be read as a provision etched in stone to cause serious violation of the rights of the appellant accused as well as to the principles of natural justice.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>28. When the State has not pleaded any specific privilege which bars disclosure of material utilized in the earlier preliminary investigation, there is no good reason for the High Court to have permitted the report to have remained shrouded in a sealed cover. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>29. In view of the aforesaid discussion, and taking into consideration the peculiar facts of the instant case, particularly the fact that the  High Court had ordered an enquiry and obtained a report without furnishing a copy thereof to the appellant and unceremoniously closed the writ petition, we deem it appropriate to issue the following directions: ­</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>a. The High Court is directed to supply a copy of the report submitted by Ms. R. Ponni, Superintendent of Police along with the other documents to the appellant herein.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>b. Writ Petition No. 34845 of 2018 and Crl.O.P. No. 23428 of 2018 are restored on the file of the High Court of Madras.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>c. The High Court is directed to dispose of the cases on their own merit, uninfluenced by any observation made herein.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>d. Although the prayer for quashing of the FIR was not orally pressed before this Court, however, the appellant is granted liberty to  seek appropriate remedy before the High Court. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>30. Accordingly, the appeal is disposed of on the above terms. Pending application, if any, stands disposed of</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '872b96d442cc94384a0c02b8313684ba.jpeg', '4c08c0a25ad6e3e09a760a183f3f85c0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-24', 1, '', '', '2022-05-23 20:33:24', '2022-05-24 11:38:12'),
(1724, 'HWGwPOcDaYwNDxNP5pfMgkmcP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service law. Non-production of original certificates/documents at the time of interview cannot be a ground to reject the candidature. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Aarav Jain Vs The Bihar Public Service Commission and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4242 of 2022 decided on 23 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Abdul Nazeer and Justice Vikram Nath.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. For recruitment of 349 posts of Civil Judge (Junior\r\nDivision), the Bihar Public Service Commission issued an\r\nAdvertisement No. 6 of 2018, dated 23.8.2018 for\r\nconducting 30th Bihar Judicial Services Examination. The\r\nbreak-up of the 349 posts is as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i. General/unreserved (01) – 175 posts</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ii. SC (02) – 56 posts</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>iii. SC (03) – 03 posts</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>iv. EBC (04) – 73 Posts</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>v. Backward Class (05) – 42 Posts\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. After conducting the Screening Test, Written Test and\r\nInterview, the Commission vide letter dated 02.12.2019\r\nrecommended names of 349 candidates in order of merit.\r\nAccording to the figures available, out of the 349\r\nrecommended candidates, four candidates did not turn up\r\nfor counselling. As such appointment letters were issued on\r\ndifferent dates from January, 2020 to December, 2020 to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">345 candidates. Further out of these 345 candidates, three\r\ncandidates did not turn up for joining. As such the\r\ncandidature of seven candidates was cancelled by the State\r\nGovernment vide orders issued on different dates. The\r\nAppellants had admittedly secured higher marks than the\r\nlast selected candidates in their respective categories but\r\nthe Commission had cancelled their candidature for want of\r\nfulfilment of the conditions required as per the interview call\r\nletter.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. One of the conditions required was to submit the\r\noriginals of certificates detailed therein which included\r\neducational certificates, Caste certificates if claiming any\r\nbenefit of reservation, No Objection Certificates of previous\r\nemployer, Character Certificate of the last attended\r\nCollege/University and other certificates of residence etc. at\r\nthe time of interview. Some of the candidates could not\r\nproduce the original Certificates as required, as a result of\r\nwhich their candidatures were cancelled by the Commission\r\nvide their meeting dated 27.11.2019. In its 102nd meeting\r\nof the Commission organised on 27.11.2019, the eligibility\r\nof the candidates on the basis of their educational </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">certificates, mark sheets, documents etc. presented at the\r\ntime of the interview which was conducted in between the\r\ndates of 21.10.2019 to 27.10.2019 under the 30th Bihar\r\nJudicial Service Examination (Advertisement No. 06/2018),\r\nthe Commission examined the short comings and the nonfulfilment of the requirement of the production of the\r\noriginal documents/certificates at the time of the interview\r\nand after dealing with each of the candidates, found deficit\r\nin fulfilling the said requirement and cancelled the\r\ncandidature of as many as 58 candidates for different\r\nreasons.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. We had required the Commission and the State to\r\nplace on record the number of available vacancies in\r\ndifferent categories, so as to consider in case the appellants\r\nsucceed whether they could be placed in their respective\r\ncategories. The information which has been placed on\r\nrecord by the State of Bihar reflects that there are 5 vacant\r\nposts in the General Category and that there are no\r\nvacancies in EBC, SC and BC categories as against the\r\nAdvertisement No. 6 of 2018.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. The submission advanced on behalf of the appellants is\r\nthat all the Appellants had supplied attested true copies of\r\nthe certificates/documents as required. However, it was only\r\nthe original of the same which could not be provided in\r\ntime. It is further submitted that for submission of the\r\noriginals, time was sought and later on the originals have\r\nbeen submitted. But despite the same, the Commission\r\nproceeded to reject their candidature.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Another submission advanced on the behalf of the\r\nappellants is that the requirement to submit the originals is\r\nneither related to qualification or eligibility and in any case\r\nbefore appointment or during the course of probation a\r\nverification and vigilance report is always obtained by the\r\nState. Therefore, non-furnishing of the original certificate at\r\nthe time of interview cannot be held to be mandatory or in\r\nother words nothing turned upon it. Even if the original </b></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>certificates/documents were not submitted at the time of\r\ninterview, the government would still be getting a\r\nvigilance/verification check carried out.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. Upon such submissions, it has been submitted that the\r\ndecision of the Commission rejecting their candidature was\r\nper se illegal, unwarranted, unreasonable and too harsh. All\r\nthe eight appellants who were duly qualified and duly\r\nselected have been deprived of their appointment as\r\nJudicial Officers. Admittedly, all the Appellants had secured\r\nmore marks than the last selected candidate in their\r\nrespective category. It is further submitted that even the\r\nHigh Court committed an error in dismissing their petitions. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. Considering the facts and circumstances of the case,\r\nwithout entering into the respective argument we are of the\r\nconsidered view that the rejection of the candidates was\r\nimproper, unjustified and not warranted. We have also\r\ntaken note of the fact that there are vacancies available,\r\nwhich if filled up by meritorious candidates would only be an\r\nasset for the institution helping in disposal of cases\r\npending in huge numbers.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. The next aspect which needs to be considered is with\r\nrespect to the adjustment of eight appellants against the\r\nvacancies of the Advertisement No. 6 of 2018. In so far as\r\nthe five candidates of the unreserved categories are\r\nconcerned namely, Mayank Kumar Pandey, Aarav Jain,\r\nAshish Chandra, Siddharth Sharma and Sanjay Kumar\r\nMishra, (according to the state five vacancies are available),\r\nthey may be adjusted against these vacancies. The issue\r\nnow remains with respect to the three candidates belonging\r\nto EBC, SC and BC category. For these three candidates, in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the facts and circumstances of the case the State may\r\neither adjust them against future vacancies which we are\r\ntold are available at present or the State may borrow three\r\nposts from future vacancies, one each in respective\r\ncategories for the Advertisement No.06 of 2018. This would\r\namount to varying the vacancies of the said advertisement\r\nwhich power always vests in the employer. We further leave\r\nit to the wisdom and discretion of the State to deal with the\r\nabove aspect either in the manner mentioned above or any\r\nother mode which it may deem fit in order to accommodate\r\nthe three appellants belonging to the EBC, SC and BC\r\ncategories.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. The eight appellants would be entitled to their\r\nrespective seniority as per their merit; however, they would\r\nnot be entitled to any arrears of salary for the intervening\r\nperiod, but would be entitled to the same from the date of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">their joining. They would be forthwith allowed to join. All\r\nincremental and other benefits of the intervening period\r\nwould be notionally available to them, but no arrears would\r\nbe paid.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. The appeals are accordingly allowed as above. The\r\nimpugned decision of the Commission dated 27.11.2019\r\nqua these appellants and the impugned judgments of the\r\nHigh Court are set aside. There shall be no order as to costs.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. Pending application(s), if any, shall stand disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3a018e62164d023aadb9eefcd3ef19d4.jpeg', '2b4bf7571ec463e63b0b5838eaee0f83.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-26', 1, '', '', '2022-05-25 17:18:56', '2022-05-26 05:00:03');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1719, 'G3DtVkqTLhiwPRFhQTmfVrqe2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' A woman accused is entitled to bail even in a murder case under the first proviso to Section 437(1)(ii) Cr.P.C, when the accused has no grave criminal antecedents. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nethra Palarswamy Vs State of Karnataka<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 2306 of 2022 decided on 12 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is before this Court seeking enlargement on bail in C.C.No.252 of 2022 arising out of Crime No.530 of 2021 registered for offences punishable under Section 302, 120B and 34 of the IPC, it having been turned down by the Principal District and Sessions Judge, Bangalore Rural in Criminal Miscellaneous No.2009 of 2021, on 17.02.2022.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The facts in brief are as follows:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is accused No.1. It is the case of the prosecution that on 07-11-2021 at about 1.30 a.m., the complainant, father of the deceased registers a complaint for offences punishable under Section  302  of  the  IPC,  which  becomes a FIR  in  Crime  No.530  of  2021.  The  complaint  was that he had two daughters  and  a  son  who  are  all  married  and  his two daughters are no more.  His  son  Palar  Swamy  was  into real estate business. He  had  two  children  from  the  wedlock. About 6 years ago his son Palar Swamy had  married one  Nethra, the petitioner herein allegedly  without  the  knowledge  of  his family and had also a child  from the  said marriage.  His  son had  set up a house in a different locality to reside  with the petitioner  and was also visiting the house of the complainant. Three years  prior to the incident, the son Palar Swamy had  purchased  two  acres of land and developed the same into sites.  He  had  constructed a house in the said developed sites and was residing there with his alleged second wife – the petitioner. The purchase  and decision to reside with the second wife became  a  subject  matter of quarrel between the members of the  family.  It  is  the  case of the complainant  that  on  06-11-2021,  Palar  Swamy  came to the house of the complainant and  had  enquired  about  his  health and on the same day, the complainant had tried to call Palar Swamy after 11 p.m. after his dinner but Palar Swamy had    not answered the calls. Apprehending some problem for  his  son, the  complainant  goes  to  the  house  of  Palar  Swamy  at  about 12.10 (night) and found the door opened and the petitioner who was holding some weapon in her hand ran away seeing him. Later, the complainant finds his son lying dead on the bed in his room and his head was bleeding. This was narrated in the complaint and a case of murder was registered against the petitioner and one Vijay Kumar, son of petitioner’s sister. On registration of the crime, the petitioner was taken into judicial custody and is in the custody from 08-11-2021. On getting arrested, the petitioner moved an application for bail under Section 439 of the Cr.P.C. during the pendency of investigation itself. Bail application was not considered. The Police after investigation filed their final report/charge sheet on 25-01-2022. The application for bail was taken up later on 17.02.2022 and dismissed notwithstanding the fact that charge sheet had been filed in the matter on the ground that the offence committed was punishable  with  death  or  life   imprisonment.  Rejection  of  the application is what drives the petitioner to this Court in the subject petition. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Learned senior counsel Sri Hashmath Pasha appearing for the petitioner would vehemently argue and contend that the petitioner notwithstanding the accusation being the one punishable under Section 302 of the IPC, she being a woman is statutorily entitled to be considered for release on bail,  that too in a case  where the charge  sheet is already filed in the matter. He would also submit that the learned Sessions Judge by his order dated 13-04-2022 has granted bail to accused No.2, who is also alleged of the same offence and of  criminal  conspiracy under Section 120B of the IPC. The learned senior counsel  taking this Court to charge sheet and statement of witnesses submits that it is a case of circumstantial evidence as there are  no eye witnesses to the incident or alleged crime.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. The afore-quoted chain of events is not in dispute. The petitioner is the alleged second wife of the deceased as is also borne out from the records. Quarrel between the wife and the husband is also a matter that is on record. There are no eye witness to the incident is again borne out from the records. Therefore, it is a case where the prosecution has to prove the offence beyond all reasonable doubt, that the petitioner has actually committed murder of the deceased by a weapon. It  is also the material on record that quarrel between the husband and the wife took place for the reason that the deceased had pestered the petitioner to have physical relationship with one of his friends in his office and further on 06-11-2021, when the petitioner had asked her husband with whom he was going to travel outside, the answer was that he was travelling with other girls, this again resulted in serious quarrel between the two and the result of quarrel appears to be the reason behind the gruesome act. It is also a matter of record that the petitioner herself went and surrendered before the Police.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. In my considered view, the facts in the case at hand are not those that would not entitle consideration of the case under Section 437 of the Cr.P.C. particularly, looking at the conduct of the petitioner for having surrendered before the Police on commission of the alleged murder. The petitioner has no criminal antecedents except the present sword hanging on the head, and on release would not be a threat to society, coupled with the fact that the police have completed  the  investigation and have filed the charge sheet at the case on hand.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>O R D E R</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The criminal petition is allowed. The petitioner/accused No.1 Nethra shall be released on bail in connection with Crime No.530 of 2021 of Madanayakanahalli Police Station and  pending before the Additional Civil Judge (Junior Division) and JMFC Court, Nelamangala, Bangalore Rural District subject to the following conditions:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>The petitioner shall execute a personal bond for  a sum of Rs.2,00,000/- (Rupees two lakhs only) with one surety for the like sum to the satisfaction of the jurisdictional Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>The petitioner shall not indulge in tampering the prosecution witnesses.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space:pre\">	</span>The petitioner shall appear before the judisdictional Court on all future hearing dates unless exempted by the Court for any genuine cause.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv)<span style=\"white-space:pre\">	</span>The petitioner shall not leave the jurisdiction of the trial Court without prior permission of the Court till the case registered against her is disposed of. The observations made above are only for the purpose of consideration of the application for bail and the same shall not  in any manner influence the trial. The trial Court shall consider the case on its merits and without being influenced  by  this order.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3e6b187fda1ed429f34a0a159e403cca.jpeg', 'a3f135ca6fe7e63a11bb5a955546b9ca.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-24', 1, '', '', '2022-05-24 16:37:56', '2022-05-24 08:24:31'),
(1721, 'RQvD7ShbFq86bqBUiTrDPhly6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Persons who are not parties to a judgement cannot claim additional benefits granted under the judgement unless the claim is founded on legally enforceable right.  Allahabad High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bhikari and others Vs State of U.P and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ C 2121 of 2022 decided on 9 February 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Y.K. Srivastava and Justice Pritinker Diwaker.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The present writ petition has been filed seeking a direction\r\nto the respondents to allot 5% developed land in terms of the Full\r\nBench decision of this Court in Gajraj Singh and others Vs.\r\nState of U.P. and others .\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The petitioners claim to be owners of khata no. 45 khasra\r\nno. 328 area 0.158 hectares situate in Village Sorkha Zahidabad,\r\nPargana and Tehsil Dadri, District Gautam Budh Nagar which\r\nwere subject matter of acquisition proceedings in terms of\r\nnotification dated 12.04.2005 issued under Section 4 (1)/17(4),\r\nand the notification dated 27.07.2006 issued under Section 6/17\r\n(1) of the Land Acquisition Act, 1894. The petitioners admit to\r\nhave accepted the compensation amount.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The petitioners have specifically stated that they did not\r\nchallenge the land acquisition proceedings. The writ petition is\r\nalso silent as to whether the notifications under which the land of\r\nthe petitioners was acquired, were under challenge in the bunch of\r\nwrit petitions which were decided along with the case of Gajraj\r\nSingh and others.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Learned counsel appearing for the State respondents and\r\nalso the learned counsel for the Noida Authority have submitted\r\nthat the benefit granted by the Full Bench in the case of Gajraj\r\nSingh and others would not be applicable to the case of the\r\npetitioners for the reason that the petitioners were neither parties\r\nin the writ petitions which had been decided along with the case of\r\nGajraj Singh and others nor there is any assertion by the\r\npetitioners that the notifications under which their land had been\r\nacquired were subject matter of challenge in the case of Gajraj\r\nSingh and others. Further more, it has been submitted that in\r\nterms of the direction contained in the Full Bench judgment, the\r\nNoida Authority had taken a decision not to allot the abadi plot to\r\nthe extent of 10% to those land owners who had not approached\r\nthe writ court and had not challenged the acquisition proceedings.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Pursuant to the directions issued under paragraph 482 (4) of\r\nthe judgment in the case of Gajraj Singh and others the respondent authority took a decision in its Board meeting for\r\npaying additional compensation to the extent of 64.70% to all land\r\nowners whether they had challenged the notifications or not. A\r\ndecision was also taken not to allot abadi plot to the extent of 10%\r\nto those land owners who had not approached the writ court and\r\nhad not questioned the acquisition proceedings. This decision of\r\nthe authority was based on the fact that such huge area of\r\ndeveloped abadi land was not available so as to allot it to all such\r\npersons who did not approach the Court.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The contention of the petitioners that irrespective of the fact\r\nwhether the notifications issued in respect of land acquisition\r\nproceedings were under challenge along with the bunch of cases\r\ndecided by the Full Bench they should be granted the same benefit\r\nregarding developed abadi plot as was granted by the Full Bench\r\nis liable to be rejected, for the reason that in the case of Gajraj\r\nSingh and others the Full Bench granted relief to the petitioners\r\nand to such persons whose earlier writ petitions challenging the\r\nnotifications had been dismissed or who had not come to the\r\nCourt challenging the notifications which were subject matter of\r\nchallenge in the writ petitions, in view of the peculiar facts of the\r\ncase having regard to the extensive development which had taken\r\nplace subsequent to the acquisition proceedings, and also that the\r\nSupreme Court in the case of Savitri Devi vs. State of U.P. and\r\nothers had made it clear that the directions issued by the Full\r\nBench shall not be treated as a precedent in future cases.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. The question as to whether the landowners were entitled to\r\nclaim benefit of the judgment passed by the Full Bench in the case\r\nof Gajraj Singh and others, which had been upheld in the case\r\nof Savitri Devi, insofar as it related to allotment of additional\r\nabadi plot was considered by the Supreme Court in\r\naforementioned case of Khatoon and others and the contention\r\nsought to be raised on the basis of the principles underlying\r\nArticle 14 of the Constitution was repelled after taking notice of\r\nthe fact that insofar as allotment of abadi plot is concerned the\r\nHigh Court in the case of Gajraj Singh and others had confined\r\nthe relief only to the petitioners therein and for other landowners\r\nthe matter was left to discretion of the authority concerned which\r\nhad declined to extend the said relief. It was held that the\r\nappellants had neither any legal right nor any factual foundation to\r\nclaim the relief of allotment of additional developed abadi plot. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Furthermore, it was taken note of that the relief in the case of\r\nGajraj Singh was granted by the High Court in exercise of its\r\nextraordinary jurisdiction under Article 226 and was confined to\r\nthe petitioners therein, and even the Supreme Court in Savitri\r\nDevi case held that said directions were not to be treated as\r\nprecedent and were limited only to the facts obtaining in that case.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. In the case at hand, the land of the petitioners was acquired\r\nin terms of proceedings initiated by means of the notification\r\ndated 12.04.2005 issued under Section 4(1)/17(4), and the\r\nnotification dated 27.07.2006 issued under Section 6/17 (1) of the\r\nAct 1894. Admittedly the petitioners did not choose to challenge\r\nthe land acquisition proceedings and it is also not the case of the\r\npetitioners that the notifications in terms of which the land of the\r\npetitioners was acquired were subject matter of challenge in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">writ petitions which were decided by the Full Bench in the case of\r\nGajraj Singh and others.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>17. It may be noticed that there was no direction in the\r\njudgment of the Full Bench for grant of payment of additional\r\ncompensation or allotment of abadi land or for consideration of\r\nthe said benefits by the authority in respect of those persons\r\nwhose land had been acquired in terms of the notifications which\r\nwere not subject matter of challenge in the case of Gajraj Singh\r\nand Others and connected bunch of writ petitions.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>18. The petitioners have admitted to having accepted the\r\ncompensation in respect of their land which was subject matter of\r\nacquisition. The additional benefit by way of allotment of\r\ndeveloped abadi plot which is sought by the petitioners not being\r\nfounded on any legally enforceable right no mandamus can be\r\nclaimed for grant of such benefit.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>19. In view of the foregoing discussion, the petitioners are not\r\nentitled to reliefs which have been sought.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>20. The writ petition thus fails and is, accordingly, dismissed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2a72463314101695ce625d30551885d8.png', '360f3ceddc25361f83a4945903798585.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-26', 1, '', '', '2022-05-24 17:47:41', '2022-05-26 08:45:25'),
(1720, 'fXvl8WkbOX2Mohu5BSuhH50Re', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitrator cannot award/allow forfeiture of substantial amount of consideration without proof of actual loss solely on the ground that it was earnest money. Delhi High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rajesh Gupta Vs Ram Avtar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>O.M.P. (COMM) 121 of 2020 decided on 19 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Vibhu Bakhru.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The petitioner has filed the present petition under Section 34 of\r\nthe Arbitration and Conciliation Act, 1996 (hereinafter the ‘A&C Act’)\r\nimpugning an arbitral award (hereinafter the ‘impugned award’) dated\r\n19.04.2012 delivered by the Arbitral Tribunal consisting of Justice\r\n(Retd.) J.P. Singh as the Sole Arbitrator (hereinafter the ‘Arbitral\r\nTribunal’).\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The impugned award was rendered in the context of disputes that\r\nhave arisen between the parties in connection with the agreement dated <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">05.12.2008 captioned “Agreement to Sell and Purchase Cum Receipt’\r\ndated 05.12.2008 (hereinafter ‘the Agreement’).\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3. In terms of the Agreement, the petitioner agreed to purchase the\r\nmanufacturing unit including the built up factory, rights in the leasehold\r\nproperty No. C-37, Sector B-2, Tronica City, Loni Ghaziabad (UP) and\r\nall movable assets for a sale consideration of\r\n?1,60,00,000/-.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. The petitioner paid a sum of Rs. 60,00,000/- to the respondent. The\r\nreceipt of the said amount was expressly acknowledged in the\r\nAgreement as receipt of ‘earnest money’.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>5. After the parties had entered into the Agreement, the petitioner\r\nclaimed that the respondent had committed fraud by representing that\r\nthe entire constructed/covered area of the factory premises was 10,000\r\nsq.ft. whereas, upon taking measurements, the actual constructed area\r\nwas found to be only 6,500 sq.ft.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>6. The petitioner claims that on discovering that the\r\ncovered/constructed area of the factory premises was less by 3,500 sq.ft,\r\nthe petitioner called upon the respondent to either reduce the\r\nconsideration price; or to refund the earnest money/part sale\r\nconsideration.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. On 02.05.2009, the petitioner sent a legal notice calling upon the\r\nrespondent to either refund the amount paid (?60,00,000/- ), or in the\r\nalternative, execute the sale deed in respect of the factory premises </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">based on actual measurements. However, the respondent did not\r\nrespond to the said legal notice.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>8. Thereafter, the petitioner filed a suit before this Court captioned\r\nC.S. (OS) No. 1971/2009 for recovery of the earnest money along with\r\ndamages.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>9. The respondent filed an application under Section 8 of the A&C\r\nAct, which was allowed and by an order dated 19.01.2010, the parties\r\nwere referred to arbitration under the aegis of the Delhi International\r\nArbitration Centre (DIAC).</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. The decision in the case of Commissioner of Customs <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(Preventive) v. M/s Aafloat Textiles (I) Pvt. Ltd. and Ors. (supra)\r\nwhich was referred to by the Arbitral Tribunal is not applicable. In that\r\ncase, the Supreme Court had set aside the order passed by the Customs,\r\nExcise and Service Tax Appellate Tribunal (CESTAT), which in turn\r\nimpugned an order of Commissioner of Customs confirming the duty\r\ndemand in respect of nine consignments of gold and silver imported by\r\nthe respondent (M/s Aafloat Textiles (I) Pvt. Ltd.). The goods were\r\nimported under a Special Import License (SIL), which was found to be\r\nforged. The forged SIL was purchased by the importers from certain\r\nbrokers. In that case, the premises of certain concerns were searched\r\nby the officers of the Directorate of Revenue Intelligence and copies of\r\nthe forged SIL was recovered. Inquiries established that the SIL in\r\nquestion was forged. The persons from whose premises the copy of the\r\nSIL was recovered, claimed that they had purchased the same from\r\nanother person. He admitted that SIL was given to him by one Mr. Jain\r\nwho in turn had obtained several bogus SILs from two other persons.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">28. It was the case of the department that the buyer of the SIL could\r\nnot have better title than the seller. The CESTAT had allowed the appeal\r\non the ground that the department had not established that the importer\r\nhad any knowledge of the forgery. In the aforesaid context, the Supreme\r\nCourt held that if the importer had not taken the necessary precautions\r\nfor finding out the genuineness of the SILs, the consequences would\r\nnecessarily follow. In the aforesaid context, the Court also referred to\r\nthe principle of “caveat emptor”. The judgment of the Supreme Court\r\ndid not involve determination of contractual rights and obligations </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">between the parties to a contract. The decision was in respect of the\r\nquestion whether the importer could absolve himself of the liability in\r\nrespect of imports under a forged license. Clearly, the said decision did\r\nnot preclude the importer from proceeding against the persons who had\r\nsold the forged SIL. This is not an authority for the proposition that the\r\nimporter did not have any recourse against the seller of the forged SIL.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. The Arbitral Tribunal has held that the claim was barred under\r\nthe exception clause mentioned in Section 19 of the Indian Contract\r\nAct,1872 as the petitioner could discover the truth in regards to\r\nmeasurement of the premises with ordinary due diligence. The Arbitral\r\nTribunal, also observed that the petitioner had taken a contradictory\r\nstand by stating in the Statement of Claims that the actual measurement\r\nof the premises came to his notice when the factory premises was\r\nmeasured, however, in his evidence as CW-1, had affirmed that the\r\nactual measurement came into his notice on visual examination.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>31. It is clear from the above that the conclusion of the Arbitral\r\nTribunal that the Agreement is not voidable on account of being induced\r\nby fraudulent representation is based on evaluation of evidence and\r\nmaterial on record. The jurisdiction of this Court to interfere with an\r\nArbitral Award under Section 34 of the A&C Act is limited. It is not\r\npermissible for this Court to supplant its opinion in place of that of the\r\nArbitral Tribunal’s. Unless the Court finds that the impugned award is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in conflict with the public policy of India or is vitiated by patent\r\nillegality, no interference under Section 34(2)(b)(ii) or 34(2A) of the\r\nA&C Act is permissible. The conclusion of the Arbitral Tribunal when\r\ntested on the aforesaid standards, does not warrant any interference in\r\nthese proceedings.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">32. The second question to be examined is whether the decision of\r\nthe Arbitral Tribunal that the respondent was entitled to forfeit the\r\namount of Rs. 60,00,000/- is manifestly, erroneous.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">33. The Arbitral Tribunal held that the payment of </span></b></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; font-weight: bolder;\">Rs.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; font-weight: bolder;\"> </span><b style=\"font-size: 12pt;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">60,00,000/- was\r\nnot as part payment of the sale price but was as earnest money. And, in\r\nterms of Clause 12 of the Agreement, the respondent was entitled to the\r\nentire earnest money due to failure on the part of the petitioner to fulfil\r\nhis obligations under the Agreement.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">42. As noted above, in the present case, the respondent has neither\r\npleaded nor established that it had suffered any loss. The respondent’s\r\ncase that it was entitled to forfeit the sum of ?60,00,000/- paid by the\r\npetitioner rested solely on the ground that it was earnest money and\r\ntherefore, it could be forfeited in terms of the Agreement. However, as\r\nnoticed above, in Kailash Nath Associates (supra), the Supreme Court\r\nhad in unambiguous terms held that Section 74 of the Indian Contract\r\nAct would apply in cases of forfeiture of earnest money under the\r\ncontract. The Court had further held that where it is possible to prove </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">actual damages of loss, such proof is not dispensed with.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>43. In the given circumstances, without the respondent establishing\r\nthat it had suffered any loss whatsoever on account of the petitioner\r\nfailing to close the transaction for purchase of the Property would be\r\nimpermissible for the respondent to forfeit the amount of </b></span><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rs. </span></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>60,00,000/-,\r\nwhich admittedly is not a nominal amount, and constitutes substantial\r\nportion of the consideration.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>44. In view of the above, the impugned award to the extent that it\r\naccepts that the respondent was entitled to forfeit the amount of\r\nRs. 60,00,000/- is set aside.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">45. The petition is, accordingly, disposed of.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8754ea2c9903302058ccafe8f8af31be.JPG', '3bb68b4eb3ffe919b680ef8787fc9137.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-26', 1, '', '', '2022-05-24 16:50:13', '2022-05-26 06:47:42');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1722, 'txfKPefO2uzebkvChUuPEDRe1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Unprecedented situation caused by outbreak of corona virus is a factor to be considered for condoning delay under Section 5 of the Limitation Act. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Indian Oil Corporation Ltd Vs Standard Casting Pvt Ltd.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CM 12926 of 2021 decided on 13 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suresh Kumar Kait and Justice Sudhir Kumar Jain.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">1. Brief facts of the case are that the appellant is one of the largest Corporations\r\nengaged in supply of fuel and other allied products throughout India. The\r\nrespondent is largest manufacturer of refuellers in India and is serving the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appellant since the last over 30 years. The appellant vide letter dated 12.02.2002\r\ncontaining terms and conditions placed an order with the respondent for\r\nfabrication and supply of 5 Nos. 27 KL capacity aviation articulated refuellers\r\nwith tank made up of mild steel material. Due to disputes and differences arose\r\nbetween the appellant and the respondent, the respondent vide legal notice dated\r\n19.08.2006 invoked the Arbitration Clause contained in the contract and sought\r\nfor an appointment of an Arbitrator. The appellant through Director (Marketing)\r\nappointed M K Jain as Sole Arbitrator who entered on reference on 29.08.2007.\r\nThe Sole Arbitrator vide Arbitral Award dated 16.03.2011 (hereinafter referred\r\nto as “the Impugned Award”) dismissed claim of the respondent. Thereafter,\r\nthe respondent filed the petition under Section 34 of Arbitration & Conciliation\r\nAct, 1996 titled as Standard Casting Pvt. Ltd. V Indian Oil Corporation\r\nLtd. bearing OMP No. 539/2011 for setting aside Impugned Award before this\r\nCourt, which was subsequently transferred to Dwarka District Courts and\r\nnumbered as Arbtn. No. 81/2017 (73/2019). The Court of Additional District\r\nJudge-01, South-West District, Dwarka Courts (hereinafter referred to as “the\r\nTrial Court”) vide judgment dated 13.01.2020 (hereinafter referred to as “the\r\nImpugned Judgment”) allowed the petition under section 34 of the Arbitration\r\nAct and set aside the Impugned Award. The appellant being aggrieved filed\r\npresent appeal under section 37(1) (B) of the Act read with section 13 of the\r\nCommercial Courts Act, 2015 against Impugned Judgment but after a delay of 338 days. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. The Law of limitation is based on equitable principle that equity helps\r\nthe diligent and not the indolent. It provides that a litigant should be\r\nprompt in claiming the relief. It is founded on public policy with aims to\r\nsecure peace in the community. It mandates to bury acts of the past which\r\nbecome stale due to lapse of time and have not been agitated within time.\r\nSection 3 of the Limitation Act provides that every suit, appeal and application\r\nif filed or instituted after the prescribed period is liable to be dismissed although\r\nlimitation has not been set up as a defence. The Limitation Act prescribed time\r\nperiod for institution of a suit, appeal and application and expiry of such time\r\nperiod leads to extinguish remedy for the aggrieved party. Section 5 of the\r\nLimitation Act, deals with the extension of prescribed period of limitation. The\r\nCourt with discretionary jurisdiction can condone the delay and proceed with\r\nthe case if concerned party furnishes sufficient cause for delay in institution of a\r\nsuit, appeal and application</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. It is also need to be determined about applicability of section 5 of the\r\nLimitation Act to appeals which are governed by uniform period of 120 days\r\nunder the Arbitration Act and 60 days under the Commercial Act. The Supreme\r\nCourt in N.V. International V State of Assam, (2020) 2 SCC 109 held that\r\ndelay beyond 120 days in filing appeal under section 37 of the Arbitration Act,\r\nis not liable to be condoned. However, the Supreme Court in Government of\r\nMaharashtra (Water Resources Department) V M/S Borse Brothers\r\nEngineers & Contractors Pvt. Ltd. observed that N.V. International was not\r\ncorrectly decided and was overruled.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. As mentioned hereinabove, one of the objects of the Arbitration Act and the\r\nCommercial Act is the speedy disposal of appeals filed under section 37 of the\r\nArbitration Act. The expression “sufficient cause” contained in section 5 of the\r\nLimitation Act is elastic enough to be interpreted differently depending upon\r\nthe object and context of a particular statute.It is necessary to determine\r\nmeaning of expression “sufficient cause” in the context of condoning delay in\r\nfiling appeals under section 37 of the Arbitration Act, which should be\r\nconsistent with the aforesaid object.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. Reverting back to facts stated in application under disposal, we are of\r\nconsidered view that the facts are not convincing. The arguments advanced by\r\nthe counsel of the appellant that the trial court treated Arbtn. No.81/2017 as\r\n73/2019 which was not in his knowledge is without any legal force. pleas of the\r\nappellant that the counsel handed over application for obtaining certified copy\r\nof the impugned judgment to his clerk who was blessed with a son and stopped\r\nreporting for duty since 15.02.2020 and the clerk never informed about status of\r\nthe application submitted for obtaining certified copy are lacking material\r\nparticulars. There is nothing on record to show that clerk of the counsel of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appellant has ever applied for obtaining certified copy of the impugned\r\njudgment. It appears that the appellant was not diligent in filing present appeal\r\nwithin time. The appellant also cannot take shelter of plea and defence that due\r\nto lack of coordination amongst officers of the appellant, the decision to file\r\nappeal against impugned judgment could not be taken till December, 2020. The\r\nappellant is government body and merely because the government is involved, a\r\ndifferent yardstick for condonation of delay cannot be laid down. This view find\r\nsupport from decisions given by the Supreme Court in Postmaster General v.\r\nLiving Media India Ltd., Government of Maharashtra (Water Resources\r\nDepartment) V M/S Borse Brothers Engineers & Contractors Pvt. Ltd. And\r\nState of M.P. V Chaitram Maywade referred hereinabove. The appellant was\r\nrequired to take appropriate steps for pursuing further judicial remedy as per\r\nsection 37 of the Arbitration Act and Section 13(1A) of the Commercial Act\r\nagainst the impugned judgment diligently and without unnecessary delay.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. The expression “sufficient cause” warrants a liberal interpretation to\r\nadvance cause of justice but simultaneously it must be ensure that there no\r\nnegligence, inaction or lack of bona fides attributable to concerned party. The\r\nconcerned party should not have acted in a negligent manner or remained\r\npassive. The concerned party need to act in bona fide manner in pursuing\r\nappropriate further legal and judicial remedies. The interpretation of expression\r\n“sufficient cause” in relation to condoning delay in filing appeals under section\r\n37 of the Arbitration Act should be in consonance with underlying objects of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Act. However, the existence of sufficient cause is to be determined on the\r\nfacts and circumstances of a particular case and for this no straitjacket formula\r\ncannot be laid down.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">33. The application under disposal also needs to be considered from different\r\nperspective. In beginning of 2020, world faced unprecedented situation due to\r\noutbreak of corona virus across the world including India. The Central\r\nGovernment in month of March, 2020 announced world largest lockdown in the\r\ncountry which was further extended from time to time followed by enforcement\r\nof various regulations thereby affecting normal functioning in private and public\r\nsectors. The normal functioning of the courts was also adversely affected due to\r\noutbreak of corona virus and courts in India including High Courts remained\r\nclosed either wholly and partially although every possible effort was made by\r\nthe judiciary for access to justice. The litigants faced difficulties in approaching\r\ncourts to seek redressal of their legal grievances. In present case limitation for\r\nfiling the present appeal expired on 13.03.2020 and immediately thereafter\r\ncountrywide lockdown was enforced by the Central and States governments.\r\nThe Supreme Court also excluded period with effect from 15.03.2020 to\r\n28.02.2022 while calculating period of limitation for any legal proceedings to\r\nbe initiated before any court or tribunal. The appellant filed present appeal\r\nduring extended period of limitation. The counsel for the appellant also\r\ncontacted Covid. Although the appellant was not appropriately diligent in filing\r\npresent appeal within period of limitation and cannot be allowed to plead</span><span style=\"font-size: 12pt;\">  </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">slackness on part of its concerned officers but the appellant cannot be denied\r\nbenefit of unprecedented situation caused by outbreak of corona virus. In\r\nGovernment of Maharashtra (Water Resources Department) V M/S Borse\r\nBrothers Engineers & Contractors Pvt. Ltd. the delay on part of government\r\nagencies in pursuing legal remedies was not attributable due to outbreak of\r\ncorona virus.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>34. In view of the above factual and legal discussion we are opinion that the\r\nappellant is entitled for condonation of delay in filing present appeal. The\r\napplication under disposal is accordingly allowed and delay in filing present\r\nappeal is condoned under peculiar facts and circumstances of the case.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '93c51f283f4b3f04424c8276b912d236.jpeg', '48fd1a8d7f6d3f4b5de8719b6a9847e1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-25', 1, '', '', '2022-05-24 19:43:15', '2022-05-25 16:31:32'),
(1723, 'R1mQY2tanUTHjEhrMgdl3slp0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Compassionate appointment. Supreme Court lays down guidelines in its latest judgement. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bhawani Prasad Sonkar Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5101 of 2005 decided on 11 March 2011.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice D.K. Jain and Justice H.L. Dattu.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This appeal, by grant of special leave, is directed against the judgment\r\ndated 1\r\nst September, 2003 delivered by the High Court of Judicature at\r\nAllahabad at Lucknow, whereby the writ petition filed by the appellant\r\nherein, seeking compassionate appointment, has been dismissed on the\r\nground that he did not fulfil the conditions envisaged in the Railway\r\nBoard Circular dated 29th November, 2001.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Appellant’s father, Mr. Prahladji Sonkar, was posted as a Guard\r\nMail/Express, North Eastern Railway at the Lucknow Junction.\r\nRespondent No. 2 viz. the Senior Divisional Karmik Adhikari, North <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Eastern Railway (N.E.R.), Lucknow directed the appellant’s father to\r\nappear before the Medical Board for a medical examination.\r\nAccordingly, appellant’s father appeared before the Medical Board and\r\nwas declared medically unfit in A2, A3, B1 and B2 categories vide\r\ncertificate dated 6\r\nth March, 1998. However, he was found fit in C1 and\r\nC2 categories and was directed to appear for another medical\r\nexamination after six months.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. Accordingly, appellant’s father again appeared for a medical examination\r\nand vide certificate dated 13th July, 1999, he was declared medically unfit\r\nas de-categorized employee. Nevertheless, he was found fit in category\r\nB1 and below. Thereafter, on 9\r\nth August, 1999, appellant’s father\r\nappeared before the Standing Committee which decided to retire him\r\nwithout offering him any alternate employment, as stipulated in the\r\nservice rules.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. It is also pertinent to mention here that on 29th April, 1999, the Railway\r\nBoard issued a circular stating, inter alia, that in light of the mandate of\r\nthe Persons with Disabilities (Equal Opportunities, Protection of Rights\r\nand Full Participation) Act, 1995, employees who become incapacitated\r\nfrom holding the post they were currently holding, but found eligible for\r\nretention in service in posts corresponding to lower medical category, shall be offered alternative employment in the posts for which they are\r\nfound suitable. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Appellant’s father moved an application dated 1\r\nst September, 1999,\r\nbefore respondent No. 2 requesting that his son be given compassionate\r\nappointment as a Class IV employee. Since there was no response to the\r\nsaid request, the father of the appellant moved another application, dated\r\n30th December, 1999, before respondent No. 3. On 18th January, 2000,\r\nthe Railway Board issued a letter stating that when an employee is\r\ndeclared as medically unfit to perform the work which he was performing\r\nbut is found to be fit to perform work in a lower category, any request for\r\ngiving compassionate employment to such employee’s ward would not\r\nbe considered if the employee opts for voluntary retirement after being\r\nde-categorized.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Mr. D.P. Chaturvedi, learned counsel appearing on behalf of the\r\nappellant, while assailing the impugned judgment, strenuously urged that\r\nhaving retired appellant’s father without offering him a suitable\r\nalternative job, despite the fact that he was found medically fit in\r\ncategory B1, the respondents were obliged to appoint the appellant in\r\nterms of instructions dated 7\r\nth April, 1983 and 3\r\nrd September, 1983,\r\nwhich were reiterated in Circular dated 22nd\r\n September, 1995.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. Per contra, Mr. Ashok Bhan, learned counsel appearing on behalf of the\r\nrespondents, contended that appellant’s father, having opted for voluntary\r\nretirement in terms of the Railway Board’s letter dated 18th\r\nJanuary,\r\n2000, could not seek appointment of his son on compassionate ground. </b></span><b style=\"font-size: 12pt;\">Learned counsel urged that the appellant has not brought any material on\r\nrecord to substantiate his plea that his father was forced to retire.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>15. Now, it is well settled that compassionate employment is given solely on\r\nhumanitarian grounds with the sole object to provide immediate relief to\r\nthe employee’s family to tide over the sudden financial crisis and cannot\r\nbe claimed as a matter of right. Appointment based solely on descent is\r\ninimical to our Constitutional scheme, and ordinarily public employment\r\nmust be strictly on the basis of open invitation of applications and\r\ncomparative merit, in consonance with Articles 14 and 16 of the\r\nConstitution of India. No other mode of appointment is permissible.\r\nNevertheless, the concept of compassionate appointment has been\r\nrecognized as an exception to the general rule, carved out in the interest\r\nof justice, in certain exigencies, by way of a policy of an employer,\r\nwhich partakes the character of the service rules. That being so, it needs\r\nlittle emphasis that the scheme or the policy, as the case may be, is\r\nbinding both on the employer and the employee. Being an exception, the\r\nscheme has to be strictly construed and confined only to the purpose it\r\nseeks to achieve. We do not propose to burden this judgment with\r\nreference to a long line of decisions of this Court on the point. However,\r\nin order to recapitulate the factors to be taken into consideration while  examining the claim for appointment on compassionate ground, we may\r\nrefer to a few decisions. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19.Thus, while considering a claim for employment on compassionate\r\nground, the following factors have to be borne in mind:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Compassionate employment cannot be made in the\r\nabsence of rules or regulations issued by the\r\nGovernment or a public authority. The request is to be\r\nconsidered strictly in accordance with the governing\r\nscheme, and no discretion as such is left with any\r\nauthority to make compassionate appointment dehors\r\nthe scheme.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) An application for compassionate employment must\r\nbe preferred without undue delay and has to be\r\nconsidered within a reasonable period of time.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) An appointment on compassionate ground is to meet\r\nthe sudden crisis occurring in the family on account of\r\nthe death or medical invalidation of the bread winner\r\nwhile in service. Therefore, compassionate\r\nemployment cannot be granted as a matter of course <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by way of largesse irrespective of the financial\r\ncondition of the deceased/incapacitated employee’s\r\nfamily at the time of his death or incapacity, as the\r\ncase may be.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(iv) Compassionate employment is permissible only to\r\none of the dependants of the deceased/incapacitated\r\nemployee, viz. parents, spouse, son or daughter and\r\nnot to all relatives, and such appointments should be\r\nonly to the lowest category that is Class III and IV\r\nposts.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. In the instant case, the respondents have not placed any material on\r\nrecord to establish that the appellant’s father was offered any alternative\r\nemployment in terms of Circular dated 29th April, 1999. On the contrary,\r\nit appears that the Standing Committee recommended his retirement.\r\nHaving denied appellant’s father the benefit of Circular dated 29th April\r\n1999, the respondents cannot claim that Circular dated 29th November,\r\n2001 was applicable to appellant’s father, disentitling him from seeking\r\nemployment on compassionate ground for his son as he was not totally\r\nincapacitated and had sought voluntary retirement. It is clear from the\r\nretirement order dated 30th August, 1999 that the appellant’s father was\r\nretired from service pursuant to the recommendation of the Standing\r\nCommittee.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. In light of the fact that Circular dated 29th November, 2001 was not\r\napplicable in the case of appellant’s father, inasmuch as the benefit of the\r\n29th April, 1999 Circular was not extended to him, and he was made to\r\nretire from service, we are of the opinion that the earlier circular dated\r\n22nd September, 1995 is applicable in the instant case. Consequently, the\r\nappellant would be entitled to employment on compassionate ground as\r\nthe said Circular contemplates compassionate employment for the wards\r\nof those employees who have been medically de-categorized, and have\r\nretired, without being offered an alternative suitable job. We are unable\r\nto accept the plea of the respondents that on being de-categorized,\r\nappellant’s father had opted for voluntary retirement.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. In light of the foregoing discussion, the appeal is allowed; the impugned\r\njudgment is set aside and it is directed that the appellant shall be granted\r\nemployment on compassionate ground within three months of the receipt\r\nof copy of this judgment, subject to his complying with other eligibility\r\nconditions, as applicable on 1st September, 1999. However, for all intents\r\nand purposes, he shall be deemed to be in service from the date of actual\r\njoining.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25.In the facts and circumstances of the case, there shall be no order as to\r\ncosts.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ded64e387c32c5247378ebd94ac31e91.jpeg', 'bdd44a594c908a144d136875496cac40.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-25', 1, '', '', '2022-05-24 20:00:34', '2022-05-25 07:57:02'),
(1725, 'K5RFC1UK4Gas1UkCbKeqfjItm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Grant of compensation towards loss due to erection of towers and drawing electricity lines based on sale price of adjacent land is correct. Law Commission must suggest payment of suitable compensation. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Chief Engineer Electricity Transmission Zone KPTCL and others Vs Gangappa Sannappa.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 113268 of 2019 decided on 11 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.   </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The II Additional District and Sessions Judge, Ballari  in Miscellaneous No.6/2017, Misc.  Petition No.7/2017, Misc. Petition No.8/2017, Misc. Petition No.9/2017, Misc. Petition No.10/2017, Misc. Petition No.11/2017, Misc. Petition No.12/2017, Misc. Petition No.13/2017, Misc. Petition No.14/2017, Misc. Petition No.15/2017, Misc. Petition No.16/2017, Misc. Petition No.17/2017 has passed different orders dated 27.02.2019 awarding certain compensation on the ground of the erection of the electricity towers and drawing of the transmission lines across the lands of various land owners under two headings, i.e. one as regards the fact of erection of the towers on the land of the land owners and second, on account of the diminution of land value due to diminution in  the yield grown on the said lands. Various amounts having been awarded under different petitions. The petitioners are before this Court challenging the  same.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Sri. Gurudev Gachchinmath, learned counsel for the petitioners submits that, in terms of Sections 10 and 11 of the Indian Telegraph Act, 1885, the petitioners are entitled to enter upon any land and set up electricity lines and as such, there is no compensation which is liable to be paid towards installation of the towers. As regards diminution, his submission is that, there is no documentary evidence which has been placed on record to establish any diminution in the land value on account of the installation of the tower inasmuch, the land continues to belong to the owner of the land and it is only the towers which have been established  by  the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Per contra, Sri. S.C.Bhuti, learned counsel for the respondent would submit that, on account of the installation of the towers the land owner would  not  be able to be cultivated. Apart therefrom, due to the erection of the tower and the power lines being  drawn there will be adverse effect to the property in terms of cultivation as also in terms of utilization of the land on a later date, since there are certain restriction as regards construction on the lands with power lines running through it. On this ground, he submits that though the respondent  would  be entitled to seek for enhancement of compensation, they are yet to do so and that the present batch of petitions are required to be dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. It is on the basis of these two provisions that, Sri. Gurudev Gachchinamath, learned counsel submits that, a telegraph authority may at  any time enter  into land belonging to any person and set up towers and draw power lines on the land belonging to such private person. It is only if the land belongs to the local authority that necessary permission under Section 12 is required to be obtained, but if a land belongs to a private person, no such permission is required to be obtained. Sri. Gurudev  Gachchinamath, learned counsel  further  submits that, the petitioners being entitled to install towers and draw power lines, there is no compensation  which is required to be paid, since it is the right vested with the petitioners to do so and the towers are put up and power lines are drawn in the public interest, since the electricity is supplied to the public at large.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. This Court cannot lose sight of the context of the Act, since without context, there can be no meaning  which can be attributed to any particular litigation or enactment. The Indian Telegraph Act, was promulgated in the year 1885 i.e. it is a pre- independence Act. The said Act was promulgated when the country was sub-judicated, and generally  no citizen of the country had any right fundamental  or otherwise. It is in those circumstances that the British in India had given certain authorities right and/or authority to virtually ride roughshod over the rights of a citizen, enter into the property of the citizen and put up either a railway line or telegraph lines on those lands without seeking for any permission from such land owner. The contention of Sri. Gurudev Gachchinamath is that, since the towers are established for public purpose and the power  lines are drawn for the public purpose in terms of providing electricity to the general public no compensation need to be paid. The said argument cannot come in the way of granting compensation. If the said argument is adopted or accepted, there would  be  no  requirement  to  award  compensation even for the highways formed, since highways are also for public purpose and public  importance. Once  a land is utilized by any authority for any purpose whatsoever, without the consent of such person by way of purchase, it would be but required for the authority, Central, State or otherwise, whether exercising powers under the Indian Telegraph Act, or any other Act to compensate the land loser. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. Admittedly, there are towers which have been established on the properties of the respondents in these batch of matters and there are power lines which have been drawn. Admittedly, there are warning signs put up that nobody can cultivate anything under the tower or near abouts. This Court can also take judicial notice of the fact, that  whenever there are petitions which are filed seeking for compensation on account of destruction of the crop due to the power line falling into the agricultural fields, many a time the defence taken is that the farmer ought not to have cultivated under the power lines. Such being the case, the authorities cannot be permitted to take advantage in both these situations. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10. Merely because the authorities are permitted to enter upon a land under an enactment that is traceable to colonial times, it cannot be said that the said  authority is not required to grant compensation. In fact, Clause-D to Proviso to Section 10, makes  it clear that while entering the land, the authority shall do as little damage as possible and shall also pay full compensation to all persons interested for any damage sustained by them, by the reason of exercising those powers. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. The interpretation of damage needs to be given full  at wide effect. Damage could  be immediate/present or in future. Damage can be as regards the land lost and also the effect of putting up of towers and drawing of the power lines on the said property. It is also to be taken note that, no construction can be made below high tension wire. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12. Thus, for all the aforesaid reasons, there is a loss which is caused to the owners of the land on account of the erection of the towers which is required to be compensated which would also come within Clause-D to the Proviso to Section 10 of the Act. As regards  the diminution, the contention of Sri. Gurudev Gachchinamath is that there is no particular  document which has been placed on record to establish any diminution and the calculation made by the trial Court is not proper. On enquiry as to  whether the authorities have carried out any such study and or come up with the formula to be adopted in such circumstances, he submits that there is no such formula which the authorities have arrived at  nor any study caused or conducted by the petitioners as regards diminution on account of a tower or drawing up of the power lines. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13. Sri. Gurudev Gachchinmath submitted that,  whenever there is a tower which is sought to be established and or power lines drawn, the concerned officers visits the property/villages, negotiate with  the villagers and fixes an amount as compensation. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14. Sri. S.C.Bhuti, learned counsel  for the respondents in reply submitted that, insofar as the land of the petitioner in the present village is concerned an amount of Rs.1,50,000/- has been considered  towards installation of the tower and depending on the extent of land, loss of diminution has been fixed. He submits that, in respect of other lands, higher amounts have been fixed for the same extent  of  land. For example in Chitradurga district and Tumkur district a sum of Rs.3,00,000/- has been fixed for ‘C’ type tower and in the Ramanagar district a sum of Rs.3,600/- per square meter has been fixed and in a Hassan district, a sum of Rs.5,50,5000/- has been fixed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16. Be that as it may, Clause – D or the proviso  to Section 10 requiring compensation to be paid for any damage caused, it would but be required for the petitioners to come up with a proper mathematical formula for assessing the compensation to be paid, both for the purpose of setting up of the tower as  also for drawing up of power lines. As regards which a proper study would have to be commissioned by  the State.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18. In the present case the trial Court has taken into consideration a sale deed said to be  executed  for land covered under Survey No.21/A measuring 5 acres 40 cents of Hallagundi village and arrived at a calculation of Rs.2,50,000/- per acre to be the value of the land. Thus, this calculation being on the basis  of the document cannot now be challenged by the petitioners without producing any document contradicting the said valuation. Mere submission that, such valuation cannot be taken into consideration is not sufficient. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19. As regards the diminution, as afore observed on account of a tower being set up and or the power  lines being drawn, the former/land-owner would be deprived of using the land under the tower as also  the crops are adversely effected on account of the electromagnetic radiation, etc., which the trial court has taken into consideration and arrived at the diminution at 50% of the value of the property below the power line. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20. In the absence of any other methodology of calculation which has not been put forth by the petitioners, I am of the considered opinion that the said methodology cannot be disputed. It is one thing to say that the methodology is bad and another to establish how it is bad. The petitioner has not been able to establish as to how the methodology adopted by the trial Court to arrive at a value of diminution of land value is bad. Hence, this submission is also required to be rejected.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>21. Since the only arguments which have  been  advanced in all these matters are the afore said two arguments which are on law and not on facts, there   is no requirement for this Court to go through the facts of each matter. These two arguments being rejected, the order passed by the trial Court in all the matters would have to be confirmed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>The petitions stand dismissed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space:pre\">	</span>Considering that the Indian Telegraph Act is of the year 1885, it would be required for the Law Commission to look in to the  matter and suggest modes and methodologies of arriving at and determining compensation on account of erection of towers as also drawing of power lines. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b685b290da454d1e22efc8e153e150df.jpeg', '09525b378962838fe93a8764187fbf1f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-25', 1, '', '', '2022-05-25 18:09:12', '2022-05-25 13:27:35');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1728, '4amBQVK9NCiqy1589E2wPaPzj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Bald and imaginary allegations do not constitute foundation for criminal offences\'\'. Karnataka High Court quashes criminal proceedings by wife against the entire family of the husband.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mohammed Shameer and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 521 of 2022 decided on 10 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Brief facts as projected by the prosecution are as follows:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Before embarking upon consideration of the facts in the case it is appropriate to notice the relationship between the protagonists in the alleged episode of crime. 2nd respondent is the complainant and  1st petitioner/accused  No.1  is  her husband; 2nd petitioner/accused No.2 is her father-in-law; 3rd petitioner/accused No.3 is her mother-in-law; 4th petitioner/accused No.4 is the grand-mother of the 1st petitioner/husband; 5th petitioner/ accused No.5 is the brother  of the 1st petitioner; 6th petitioner/ accused No.6 is the sister-in- law; 7th petitioner/accused No.7 is sister-in-law’s husband and 8th petitioner/accused No.8 is a distant relative of petitioner No.1. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The 1st petitioner and the complainant got married on 24-10-2020. The relationship of the complainant and the 1st petitioner gets irrevocably strained. A complaint was lodged by the 2nd petitioner herein against alleging harassment being caused by the complainant while residing in the house of in-laws before the Vidyanagar Police, Davangere. This was treated as a non-cognizable case and thereto NCR No.137 of 2020 was registered on 12-12-2020, after which, it appears that the complainant moves away from the matrimonial house and began to reside in her parents’ house. On 08-03-2021 the complainant causes a legal notice against the petitioners alleging several instances of harassment meted out to her by the  petitioners.  This is replied to by the petitioners on 15.03.2021.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Things standing thus, apprehending threat from the hands of the complainant, the 1st petitioner/husband files O.S. No.125 of 2021 seeking restraint against the 2nd respondent/ complainant in interfering with the affairs in the house of the petitioners. The trial Court grants an ad-interim injunction in  the said civil suit by its order dated 20-03-2021. After which, the 1st petitioner files another suit for divorce in O.S.No.223 of 2021 before the Principal Civil Judge and JMFC at Chitradurga. The said suit is filed on 18-06-2021. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. After the aforesaid proceedings, the complainant/2nd respondent registers the impugned complaint, pursuant  to which, a FIR is registered in Crime No.112 of 2021 for offences punishable under Sections  506, 498A, 504, 307, 313, 323, 354, 114 and 34 of the IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961. The Police after investigation filed a charge sheet on 10-12-2021 for the offences punishable under Sections 506, 498A, 504,307, 313, 323, 354, 114 and 34 of the IPC and Sections 3 and 4 of the  Dowry Prohibition Act, 1961.  The learned Magistrate takes cognizance of the aforesaid  offences  on  23-12-2021. It  is  at  that  juncture  the petitioners have knocked the doors of this Court in the subject criminal petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. The learned senior counsel would contend that the relationship between the husband  and  the  wife  turned  sore  within few  weeks  after  marriage.  Incompatibility  between  the  two became irrevocable and in that light several proceedings are instituted by the husband against the wife and the wife causing notices against the husband and his family members. After the husband initiating proceedings - one  suit  seeking  restraint  of  entry of the complainant into  the  house  of  the  petitioners  and  the other suit for divorce are  filed  and  as  a  counter-blast,  the  wife registers a complaint against all the members of  the  family who are not even connected.  Even  the  grandmother  of  the accused No.1who is 80 years old is also dragged into these proceedings. It is his submission that there cannot be a better case of an abuse of the process of the law, than this.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. The relationship, in the case at hand, is as noticed hereinabove. Accused No.4 is also drawn into the proceedings. Accused No.4 is the grandmother of the 1st petitioner who is 80 years old and it is submitted that she is bedridden. The sister of the 1st petitioner, the 6th petitioner and her husband  7th  petitioner are living separately for the last 7 years and are in no way concerned with the family of the 1st petitioner or the squabble between the husband and the wife. They are simply dragged into these proceedings. The 8th petitioner who is a resident of Harihar had never interfered with the life of the complainant is also dragged into these proceedings. The father- in-law and mother-in-law/petitioners 2 and 3 herein  who, though reside with the husband, no foundation is laid of any harassment meted out against the complainant/2nd respondent  to allege offences punishable under Sections 498A,  323,  307, 313 or 354 of the IPC against them. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. It is the 1st petitioner/husband who remains. The FIR registered was for offences punishable as afore-quoted. The charge sheet reiterates it. Gravest of the offence  that  is  indicated is Section 307 of the IPC. Section 307 deals with attempt to murder. Offence under Section 307  is  punishable with imprisonment upto 10 years and is considered to be grave offence. No foundation is laid in the complaint or in the  summary of the charge sheet to bring home the offence under Section 307 of the IPC. Even according to the complainant, she and her husband were living separately from the 1st week of February 2021. The attempt is alleged to have happened on 22-08-2021 that too in the house of the parents of the complainant. Therefore, the very fact that  the  husband  did enter the house of the complainant despite the aforesaid civil proceedings instituted by him, that too for torture of the complainant would definitely suffer from the vice of improbability. Attempt to murder cannot be imaginary. There is no material placed to demonstrate any attempt to murder. Such allegation is made in thin air and cannot be sustained in thinner air.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. The other allegation is for offence punishable under Section 498A of the IPC. Even to this offence, there is no foundation laid. Bald and vague allegations galore in the case at hand. Section 313 of the IPC is also alleged, which depicts  causing miscarriage without one’s consent. There is only a sentence in the complaint alleging that the complainant became pregnant which the parents of the husband did not welcome. There is no material produced to drive home miscarriage without the complainant’s consent. There is not even a miscarriage  in  the case at hand.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21. Section 354 of the IPC again would not be tenable for the reason rendered while considering the offence under Section 307 of the IPC. Section 114 of the IPC that is alleged deals with presence of abettor when the offence is committed. The alleged offence is committed allegedly in the house of the parents of the complainant. Who could abet the offence? None of the petitioners; as the incident happened in the house of the parents of the complainant. Therefore, all the offences alleged lack any foundation in the complaint or in the summary  of  the  charge  sheet.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24. With regard to the offence alleged under Sections 3 and 4 of the Dowry Prohibition Act, 1961, some bald allegations are found in the FIR, as also in the charge sheet, but no proof  thereof is produced to sustain the charge. The allegations under these sections are made to somehow bring the petitioners to book. Such an approach cannot be countenanced in law. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25. In the light of the preceding analysis of the facts, the judgments of the Apex Court on the subject and the powers of this Court under Section 482 of the Cr.P.C. I deem it appropriate to obliterate the proceedings against the petitioners.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>O R D E R</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Criminal Petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>The proceedings in C.C.No.3121 of 2021 pending before the II Additional Senior Civil Judge and JMFC, Davangere, stand quashed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4297ef3bf8f8ac6d1fba61de9f024858.jpeg', '044d596066b6cd952fc3f75a0ab04841.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-26', 1, '', '', '2022-05-26 17:17:10', '2022-05-26 14:27:13'),
(1729, '5HE7VeSPSoEW0YOIwFbkfpL1H', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Failure to disburse dividend under the Companies Act, 1956 is a continuing offence. Recurring limitation extends until the payment is made. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kavveri Telecom Products Ltd and others Vs M/S. Securities and Exchange Board of India.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 3454 of 2017 decided on 19 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Natarajan.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The case of the petitioners is that the respondent-M/s. Securities and Exchange Board of India, Mumbai (hereinafter referred to as \'SEBI\') has filed a complaint against the accused persons under Section 200 of Cr.P.C. for the offence punishable under Sections 205(8) and 207 read with Sections 55A, 205(1A) and 621 of the Companies Act, 1956 alleging that accused No.1-Kavveri Telecom Products Limited, Bengaluru being registered under the Companies Act, the SEBI was established under the Securities and Exchange Board of India Act, 1992 to protect the interests of investors in securities and to promote the development of and to regulate the securities market as well as matters connected therewith or incidental thereto Section 11 of the Securities and Exchange Board of India Act. Accused No.1-Company engaged in business of manufacture of wireless telecommunication products. It has declared dividend to  its shareholders at the Annual General Meeting (AGM) held on 29.09.2012 and total dividend declared at the AGM of accused No.1-Company which is amounted to Rs.3,01,86,390/-. As per Section 205(1A) read with Section 205(1C) of the Companies Act, accused No.1 was statutorily required to deposit the amount of dividend declared into a separate Bank account within 5 days of such declaration and the accused were statutorily bound to transfer the said amount to the shareholders within thirty days. But accused No.1 being a company represented by accused No.2 who is a Managing Director of the said company and accused Nos.3 to 7 are the Directors of the Company who are responsible for the day to day affairs of the Company have not deposited the said amount to the investors or shareholders within prescribed time. Therefore, a Show Cause notice was also issued after receiving the complaints from the shareholders. Accused No.1 given reply on 23.02.2013 and on the notice of the respondent dated 13.02.2013, accused No.1 sought two weeks\' time to provide the information as accused Nos.2 to 5 were in abroad. Accordingly, the petitioner sent a letter to the complainant on 13.03.2013 on untenable ground seeking further time. The complainant further alleges that the accused with a malafide intention of defrauding its investors, despite several complaints by investors and reminders from the complainant has failed to comply with its obligations and duties as required under the Companies Act. The accused also required to pay the dividend with 18% interest per annum. The complainant received a letter dated 28.06.2013 from accused No.1 where they have categorically admitted for violating the provisions of Companies Act. Thereby, the accused persons are committed the above said offences. Hence, the prosecution came to be launched against the petitioners which is under challenge.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. Having heard the arguments and on perusal of the records, it is an admitted fact that the accused No.1 is the Company and other accused persons are Managing Director and Directors of the Company. It is also an admitted fact that they have declared the dividend to their shareholders for Rs.3,01,86,390/- and they have not paid to the shareholders. A notice was also got issued by the respondent on 13.2.2013 and the Head HR and Admin. of the Company sought extension of time vide his letter dated 23.02.2013 and subsequently, one more letter dated 13.03.2013 was issued. As per Section 205A of the Companies Act, 1956 (Old Act), the dividend has been declared by a company but has not been paid within thirty days from the date of declaration, to any shareholder entitled to the payment of the dividend, the company shall, within seven days from the date of expiry of the said period of thirty days, transfer of total amount of dividend which remains unpaid within the said period of thirty days, to a special account to be opened by the company in that behalf in any scheduled bank, to be called \"Unpaid Dividend Account of the Company Limited/Company (Private) Limited. As per Section 205(1A), the Board of directors may declare interim dividend and the amount of dividend including interim dividend shall be deposited in a separate bank account within five days from the date of declaration of such dividend. On bare reading of 205(1A) and 205A of the Companies Act, once the dividend declared shall be deposited within five days in separate bank account and thereafter, within thirty days, it shall be paid to the shareholders by transferring to their accounts and if the amount was not claimed by the shareholders, a separate account shall be opened and kept in the said account and as per Section 205A(8) of the Companies Act, if the company fails to comply with any of the requirements of this section, the company and every officer of the company who is in default, shall be punishable with fine which may extend to five thousand rupees for every day during which the failure continues.  As per Section 207 of the Companies Act, 1956, the Penalty for failure to distribute dividends within thirty days, once the dividend has been declared by a company but has not been paid, or the warrant in respect thereof has not been posted, within thirty days from the date of declaration, to any shareholder entitled to the payment of the dividend, every director of the company shall, if he is knowingly a party to the default, be punishable with simple imprisonment for a term which may extend to three years and shall also be liable to a fine of one thousand rupees for every day during which such default continues and the company shall be liable to pay simple interest at the rate of 18% per annum during the period for which such default continues. Admittedly, the dividend was declared by the company on 29.09.2012 and they have not transferred the dividend declared within five days of its declaration to separate account as per Section 205(1A) and they have also not disbursed the dividend within thirty days from the date on which the due payable as per Section 205(1A), if calculated and if the dividend declared on 29.09.2012 within 5 days i.e., on 04.10.2012, they have to deposit in separate account and within 30 days i.e., on 03.11.2012 and they have to disburse the amount to the shareholders. Admittedly, the petitioner-company is defaulter in depositing and disbursing the amount, thereby, committed offence under Section 205(1A) and 205A of Companies Act which is punishable under Section 207 of the Companies Act. It is also not in dispute that the SEBI issued notice on 13.02.2013 and on 23.02.2013. The Head HR and Admin. of the Company sent a letter to the SEBI stating that he may require some more time to consult with the Directors as they have traveled to abroad. Subsequently, on 13.03.2013, again Head HR and Admin. of the Company wrote a letter to SEBI stating that they could not make the arrangement for payment of declared dividend and funds and cash flows have been affected badly due to defaulters and delays from their side and also they sought for opportunity to rectify and make the payment of dividends along with simple interest of 12% per annum as per Section 205A(4) of the Companies Act. Subsequently, on 28.06.2013, one Shiva Kumar Reddy, the Managing Director-accused No.2 send a letter for having paid the dividends with 18% interest p.a. for delayed payments. These documents clearly indicates that the accused- company has committed offence under Section 207 of the Companies Act apart from not depositing the amount within five days as per Section 205(1A) of Companies Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. Now coming to the contention raised by the learned counsel for petitioners that the limitation point that the last amount was paid on 28.06.2013 as per their own letter, they have admitted that they have paid the entire amount along with interest. Therefore for the purpose of calculation of limitation offence under Section 205(1A) and 205A are the continuing offences until payment was made as on 28.06.2013. Such being the case, the complaint came to be filed in the year March 2016 within three years of the offence committed which is also continuing offence and it is continuing offence, the recurring limitation extends until the payment was made. Therefore, absolutely, there is no delay in filing the complaint and it was barred by the limitation under Section 468 of Cr.P.C. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. As regards to the another contention raised by the learned counsel for the petitioners that the offence falls under the new Act, but not old Act. Therefore, filing the complaint under the old Act is not sustainable. In this regard, it is an admitted fact that the offence was committed under the old Companies Act, 1956 as the dividend declared in September 2012 and it was due for disbursement by 03.11.2012 and the new Companies Act came into force only in the year 2013. Though the complaint came to be filed in the year 2016, but the savings and repealed Act as per Section 465 of the Companies Act which was introduced or inserted only in the year 2020. Therefore, the complaint under the old Act has rightly filed as on the date of filing the complaint, Section 465 was not brought in the statute book. Therefore, the said contention by the petitioner counsel also is not sustainable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. As regards to the third contention raised by the learned counsel for the petitioners is that once the amount has been paid, the penal provision should be exonerated. He has also relied upon the judgment of the Madras High Court in the case of N.Kumar stated supra. On perusal of the judgment of the Madras High Court, where it is pertaining to the Directors who was already left the Company and he was not a Director as on the date of complaint. Therefore, that judgment will not be applicable to the case on hand. Here in this case, there is a clear violation of the provision of law for non-depositing the amount within five days and also not disbursing within thirty days and it was paid nearly for three years. Even some of the payments were made after filing of the complaint. Such being the case, the penal provision cannot be exonerated and otherwise, there is no meaning in mentioning the penal provision under the statute book. Therefore, considering all these facts, I am of the view that the petitioner has not made out the ground for quashing the criminal proceedings and on the other hand, they have to face the trial before the Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. Accordingly, both the Criminal Petitions are hereby dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2c49d328c0dfc906cbb43c8d9124ae88.jpeg', '77243bb85e5fd3d80565ea5d88f93873.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-27', 1, '', '', '2022-05-26 17:56:20', '2022-05-27 15:26:12'),
(1727, 'BBcRbwA8986h8WkKBlNI9GzIo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Public auction. Highest bid cannot be unilaterally and arbitrarily rejected when the bidder is ready to comply with all the requirements. Delhi High Court.   ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Merta Investment Pvt Ltd Vs The Vice Chairman Delhi Development Authority and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. (C) 7167 of 2021 decided on 24 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Subramonium Prasad.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The instant writ petition has been filed under Article 226 of the\r\nConstitution of India, 1950, challenging impugned Order dated 14.07.2021\r\npassed by the Director (Old Scheme Branch), Delhi Development Authority\r\n(Respondent No.2 herein) wherein the Petitioner’s request for allotment of\r\nPlot. No. 58, Pocket P, EPDP Colony, C.R. Park, New Delhi – 110019\r\n(hereinafter, “the demised plot”) at 85% of the his Bid was rejected and\r\nallotment was cancelled.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">5. Mr. Sikri, the learned Senior Counsel, argues that the money was\r\nreturned to the Petitioner only after the Petitioner requested the DDA to\r\nrefund the excess money that had been deposited and sought for a reduction\r\nof the Bid Amount on a pro-rata basis. He submits that the actions of the\r\nDDA are contrary to law as well as the principles of natural justice as DDA </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">took advantage of the financial burden imposed on the Petitioner to exact\r\nconsent and promises from the Petitioner, only to violate the same. Mr. Sikri\r\nstates that the delay in execution of the Conveyance Deed and the handing\r\nover of the demised plot to the Petitioner has deepened the Petitioner’s\r\nfinancial problems. The learned Senior Counsel states that the principle of\r\nPromissory Estoppel dictates that the DDA could not have backed out of its\r\nobligation to the Petitioner, as had been conveyed during the Personal\r\nHearings, in such a whimsical and arbitrary manner.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>6. Per contra, Mr. Anish Dhingra, learned Counsel appearing on behalf\r\nof the DDA, submits that there exists an arbitration clause and, therefore, in\r\nthe face of an alternate remedy, the instant writ petition is not maintainable.\r\nHe further submits that Clause (5) of the Eligibility in Chapter III, General\r\nTerms and Conditions of the E-Auction clearly states that bidders must be\r\nprepared to accept a variation of 15% in the area announced, subject to\r\nadjustment of cost in proportion to the amount on the accepted bid. He also\r\nsubmits that the area of the residential plots announced are only approximate\r\nin nature. He states that the e-auction document states that wherever the\r\nvariation in plot size varies more than 15%, the plot would have to be\r\nreauctioned.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. Mr. Dhingra submits that the demands of the Petitioner are against the\r\nprinciples of natural justice, and that was incumbent upon the Petitioner to\r\nconduct their own investigations and analysis as well as to check the\r\naccuracy, adequacy, correctness and reliability and completeness of the\r\nassumptions, assessments, statements and information contained in the eauction document. He states that the Petitioner cannot go against the\r\nconditions stipulated in the e-auction document and challenge the allotment\r\nof the demised plot by forcing the DDA to accept the payment of 85% of the</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">bid amount.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. The learned Counsel for the DDA submits that Gaurav Enterprises v.\r\nDelhi Development Authority (supra) does not apply in the instant case as\r\nthe facts therein are completely different from the facts in the instant case.\r\nHe states that the Competent Authority has distinguished both the cases\r\nastutely to arrive at the conclusion that the said judgment would not apply\r\nherein as the allotment had been cancelled in that case on account of nondeposit of the premium amount within the stipulated period of time. He\r\nstates that this Court in Gaurav Enterprises v. Delhi Development Authority\r\n(supra) had, however, not quashed the clause pertaining to the 15% variation\r\nin the size of the plot.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. The material on record reveals that on 26.06.2019, the Petitioner was\r\ndeclared to be the Highest Bidder (H1) with respect to the demised plot.\r\nPursuant to this, the Petitioner conducted an inspection of the plot with the\r\naid of an architect and found that there was a variation of more than 15% in\r\nthe area of the plot. This factum was also referred to DDA’s Engineering\r\nDeptt. which, vide letter dated 16.11.2019 intimated that the actual area was\r\nfound to be 112 sq. mtrs. as against 139.07 sq. mtrs. The Petitioner, though\r\nseeking clarification with regard to the area as well as a reduction of the\r\nvalue of the demised plot on a pro-rata basis, deposited a sum of Rs.\r\n3,40,28,949/- requested as per the Letter of Intent dated 21.08.2019. The\r\nmaterial further reveals that the Petitioner’s clarifications were left\r\nunanswered and DDA issued an Allotment-cum-Demand Letter dated\r\n07.10.2019 instead, requesting the Petitioner to pay the balance sum of Rs. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2,55,21,756/- within a period of 90 days.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. It is further found that the Petitioner complied with the terms\r\nstipulated in the letters and duly submitted the amounts requested, however,\r\nthe requests of the Petitioner with regard to reduction in the value of the\r\ndemised plot went unheard. It was only when the Petitioner sought for the\r\nExecution and Registration of the Conveyance Deed, along with a refund of\r\nonly the excess payment, did DDA refund the entire amount of Rs.\r\n3,40,28,949/- without any intimation whatsoever. Furthermore, when the\r\nPetitioner approached this Court challenging the unilateral transfer of money\r\nby DDA to the Petitioner, this Court had already in Order dated 29.09.2020\r\nrendered in W.P.(C) 7181/2020 directed DDA to treat the writ petition as a\r\nrepresentation and to also grant a personal hearing to the Petitioner, with a\r\ndecision being taken after taking into account a judgement of this Court in\r\nGaurav Enterprises v. Delhi Development Authority (supra).\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. A perusal of the aforesaid judgement showcases that this Court, while\r\ndealing with a similar matter wherein there was a more than 15% variation\r\nin the area of the plot, had rejected the contentions of the DDA and noted\r\nthat the Petitioner therein harboured a reasonable expectation after duly\r\nfollowing the conditions stipulated in the bid. This Court had also directed\r\nfor a reduction in the value of the demised plot therein on a pro-rata basis\r\nand for consequent possession to be handed over to the Petitioner therein.\r\nThis Court is of the opinion that the facts of Gaurav Enterprises v. Delhi\r\nDevelopment Authority (supra) are similar to the instant matter, and despite\r\nthe Petitioner therein not having deposited the demanded amount within the\r\nstipulated time, this Court had ruled in favour of the Petitioner. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. In the instant case, the variation in the area is more than 15% but the\r\nPetitioner is prepared to take the plot and accepts pro-rata reduction of 15%\r\nvariation and had in fact gone to accepting up to 10% variation as is\r\nevidenced by letter dated 05.03.200 written by the Petitioner to the Director\r\n(OSB), DDA. At no juncture has the Petitioner expressed unwillingness in\r\nnot being allotted the demised plot. The Petitioner had already agreed to a\r\nrefund of 10% of the Bid Amount and given its written consent to forego the\r\nexcess premium paid. There is also no explicit condition in the e-auction\r\ndocument which indicates that the auctioned plot must be reauctioned if a\r\nvariation of area of a plot is more than 20%.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. In the instant case, it has to be presumed that the Petitioner had done\r\nits due diligence when it came to ascertaining the area of the demised plot\r\nand even after knowing that the plot size is smaller still he proceeded to o\r\nahead with the bid. It is the Petitioner’s case, which has not been disputed by\r\nthe DDA, that the Petitioner had reiterated its request for clarification as well\r\nas reduction on the value of the plot orally as well as by visiting the office of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the DDA physically several times. Multiple communications had been made\r\non behalf of the Petitioner, even before the issuance of the Letter of Intent.\r\nThe Petitioner is ready to bear a greater loss.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16. DDA, coming within the ambit of “State” under Article 12 of the\r\nConstitution of India, is obligated to comply with the principles of natural\r\njustice. It is trite law that writ Courts must not hesitate to exercise their\r\njurisdiction under Article 226 where the actions of the State are violative of\r\nfundamental rights under our Constitution as being wholly unreasonable and\r\nunfair, and that in such circumstances, Courts must grant relief in favour of a\r\nperson where both law and equity demand that such relief should be granted.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. The Supreme Court in Ritesh Tiwari v. State of U.P., (2010) 10 SCC\r\n677, has deliberated upon the ambit of equitable jurisdiction under Article\r\n226 of the Constitution of India, and noted that promotion of good faith and\r\nequity as well as to prevention of perpetration of a legal fraud are ideals that\r\nmust be borne in mind by a Court of equity.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. The actions of DDA to arbitrarily return the amount of the Petitioner\r\nwithout any intimation, and then rejection of the allotment of the demised\r\nplot to the Petitioner vide impugned Order dated 14.07.2021 is\r\nunconscionable and unacceptable and is against the principle of equity and\r\ngood conscience. It is pertinent to note that the actions of the DDA followed\r\nthe personal hearing dated 05.02.2021 that took place with an authorised\r\nrepresentative of the Petitioner wherein the DDA allegedly assured the\r\nPetitioner that a decision would be taken in their favour. The Petitioner had\r\nalso furnished a consent letter dated 05.02.2021 indicating their willingness\r\nto accept the demised plot with a 15% rebate in cost as per the accepted Bid\r\nAmount calculated on a pro-rata basis. DDA cannot now turn its back to the p<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">etitioner and solely rely upon the bidder not conducting inspections with\r\nrespect to the demised plot. The good faith that has been reposed in the DDA\r\nby the Petitioner has been flouted time and again by way of arbitrary and\r\nunreasonable actions when the Petitioner has been consistently following the\r\nterms and conditions imposed by the DDA. The reproachable conduct of the\r\nDDA in dealing with the Petitioner is not appreciated by this Court.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>19. In view of the above observations, the instant writ petition is allowed.\r\nPending application(s), if any, are disposed of.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20. The DDA is directed to execute and register the Conveyance Deed\r\nwith respect to demised plot in favour of the Petitioner within a period of\r\neight weeks from the date of this Order. Furthermore, DDA is directed to\r\naccept the Bid Amount from the Petitioner with a rebate of 15% on a prorata basis as per the Clause (5) of Part I of Chapter II of the document of eauction.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'aeb3eb46af1c9cc6f9b255e500e90231.jpeg', 'cefa2bbc8065079efcd6d6fd3f138101.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-26', 1, '', '', '2022-05-25 20:23:06', '2022-05-26 22:04:42');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1730, 'GvYHGktn2QN3A3kiEfaW7ugMd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Granting bail to accused only on the basis of parity, without taking into consideration the criminal history, nature of crime, material evidence and involvement of the accused is not justified. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Deepak Yadav Vs State of U.P. and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 861 of 2022 decided on 20 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna Murari and Justice Hima Kohli</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Briefly, the facts relevant for the purpose of this appeal are that the\r\nAppellant/Informant Deepak Yadav lodged an FIR being Crime Case No.\r\n16/2021 on 09.01.2021 at PS Para, Lucknow under Section 307 IPC against\r\nRespondent No. 2/Accused Harjeet Yadav, co-accused Sushil Kumar Yadav and\r\ntwo unknown persons. The allegations against the said accused persons were\r\nthat on the night of 08.01.2021, at around 8.30 PM, Appellant’s father Mr.\r\nVirendera Yadav (deceased) was on way to his home from the lawn located near\r\nJaipuria School and at the same time, the accused persons took position on\r\nKulhad Katta Bridge and fired at him with the common intention to kill the\r\ndeceased. The bullet shot hit his right cheek and made its exit through the other\r\nside leaving him severely injured. In view of his serious condition, the people\r\npresent on the spot informed the local police station and admitted him at the\r\nTrauma Centre, Medical College, Lucknow. The Appellant/Informant, on\r\nreceiving the information about his injured father rushed to the Trauma Centre\r\nwith his mother Smt. Sunita Yadav and elder sister Ms. Jyoti Yadav. The\r\nAppellant’s mother asked her husband about the incident to which he replied\r\nthat he was shot by Respondent No.2/Accused Harjeet Yadav and one, Sushil <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Yadav and that they were accompanied by two other persons as well. The\r\nstatement given by the deceased was noted down by Sri Mahesh Kumar\r\nChaurasia, DSP/ACP Chowk, Lucknow and Sri. Ashok Kumar Singh, SI/First\r\nInvestigating Officer.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. Respondent No. 2/Accused was arrested by the police on 13.01.2021 and\r\none country made pistol with two live cartages were recovered from him. The\r\nAppellant/Informant’s father passed away on 14.01.2021 on account of which\r\nthe case was converted to one under Section 302 IPC. The co-accused, Sushil\r\nKumar Yadav surrendered before the Judicial Magistrate, Lucknow on\r\n16.01.2021.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>5. After completion of investigation and upon finding sufficient evidence,\r\ncharge sheet was filed before the trial Court on 06.04.2021 against Respondent\r\nNo.2/Accused and co-accused Sushil Kumar Yadav under Sections 302 and 34\r\nIPC. Furthermore, investigation against two unknown accused persons is\r\npending</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. The importance of assigning reasoning for grant or denial of bail can\r\nnever be undermined. There is prima facie need to indicate reasons particularly\r\nin cases of grant or denial of bail where the accused is charged with a serious\r\noffence. The sound reasoning in a particular case is a reassurance that discretion\r\nhas been exercised by the decision maker after considering all the relevant\r\ngrounds and by disregarding extraneous considerations.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. This Court has reiterated in several instances that bail once granted,\r\nshould not be cancelled in a mechanical manner without considering whether\r\nany supervening circumstances have rendered it no longer conducive to a fair\r\ntrial to allow the accused to retain his freedom by enjoying the concession of\r\nbail during trial. Having said that, in case of cancellation of bail, very cogent\r\nand overwhelming circumstances are necessary for an order directing\r\ncancellation of bail (which was already granted)</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>35. Coming to the present case at hand, the Respondent No.2/Accused was\r\narrested on 13.01.2021 subsequent to which, he had applied for regular bail\r\nbefore the Sessions Court which was rejected on the ground that he is named in\r\nthe FIR on the basis of the information provided by the deceased himself and\r\nthat the same has been clarified after perusal of the documents/forms that the\r\nbullet was shot by the Respondent No. 2/Accused himself. Being aggrieved by\r\nthe same, Respondent No.2/Accused filed an application under Section 439\r\nCr.P.C before the High Court seeking regular bail. The High Court vide its\r\nimpugned order granted bail to the Respondent No.2/Accused without\r\nconsidering the relevant facts and circumstances.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>36. A bare perusal of the impugned order reveals that the High Court has\r\nfailed to take into consideration the following:-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1 Respondent No.2/Accused has been named in the FIR bearing Crime\r\nCase No. 16/2021 lodged under Sections 302 and 34 IPC and was the\r\nmain assailant who had a weapon in his hand. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2 The main role of Respondent No.2/Accused was that he opened fire at the\r\ndeceased due to which the bullet hit his right cheek and made its exit\r\nthrough the other side.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3 The deceased succumbed to his injuries on 14.01.2021</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4 Respondent No.2/Accused had the intention to murder the deceased as\r\nthere was previous enmity between him and the deceased with regard to\r\nsome land which Respondent No.2 threatened to grab.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5 Respondent No.2/accused has clearly been named by the deceased and he\r\nwas actively involved in opening fire which caused the death of the\r\ndeceased.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6 Respondent No. 2/Accused’s statement was recorded by the then IO\r\nunder Section 161 Cr.P.C in which he admitted to having committed the\r\noffence. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>37. There is certainly no straight jacket formula which exists for courts to\r\nassess an application for grant or rejection of bail but the determination of\r\nwhether a case is fit for the grant of bail involves balancing of numerous\r\nfactors, among which the nature of the offence, the severity of the punishment\r\nand a prima facie view of the involvement of the accused are important. This\r\nCourt does not, normally interfere with an order passed by the High Court\r\ngranting or rejecting bail to the accused. However, it is equally incumbent upon\r\nthe High Court to exercise its discretion judiciously, cautiously and strictly in\r\ncompliance with basic principles laid down in a catena of judgments by this\r\nCourt.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>38. However having said that, in the case at hand, it is manifestly incorrect on\r\nthe part of the High Court to have granted bail to the Respondent No.2/Accused\r\nwithout taking into consideration the relevant facts and circumstances and\r\nappropriate evidence which proves that the Respondent No.2/Accused has been\r\ncharged with a serious offence.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>39. Grant of bail to the Respondent No.2/Accused only on the basis of parity\r\nshows that the impugned order passed by the High Court suffers from the vice\r\nof non-application of mind rendering it unsustainable. The High Court has not\r\ntaken into consideration the criminal history of the Respondent No.2/Accused,\r\nnature of crime, material evidences available, involvement of Respondent\r\nNo.2/Accused in the said crime and recovery of weapon from his possession.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>40. Having considered the aforesaid facts of the present case in juxtaposition\r\nwith the judgments referred to above, we are of the opinion that the impugned\r\norder passed by the High Court is not liable to be sustained and is hereby set\r\naside. The bail bonds of Respondent No.2/Accused stand cancelled and he is\r\nhereby directed to surrender within one week from the date of passing of this\r\norder, failing which, the concerned police authorities shall take him into\r\ncustody.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>41. It is however clarified that observations made hereinabove are limited to\r\nour consideration of the issue of cancellation of bail, as raised by the appellant.\r\nThey shall not come in the way of final adjudication before the trial Court. At\r\nthe cost of repetition, it is stated that the trial Court is to consider the matter\r\npending before it, uninfluenced by any of the observations made, strictly on the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">basis of evidence that shall be brought on record. This order shall also not\r\npreclude the Respondent No. 2/Accused from applying afresh for bail at a later\r\nstage, if any, new circumstances are brought to light.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>42. As a result, appeal stands allowed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2f021245d7bf3591e29cc97bf712845d.jpeg', '7f02174366ca804117fca84467821047.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-27', 1, '', '', '2022-05-26 18:10:54', '2022-05-27 12:01:21'),
(1731, '34KRh8YBoBFgo4Ah5956JMDJB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Date of absorbtion in the service is relevant for the purpose of applying the Pension Rules. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State of Bihar and others Vs Rajmati Devi and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3900-3901 of 2022 decided on 20 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated  11.04.2017 passed by the Division Bench of the High Court of Judicature at Patna in Letters Patent Appeal No. 1099/2016, by which, the Division Bench of the High Court has dismissed the said appeal preferred by the State and has confirmed the judgment and order dated 02.09.2015 passed by the learned Single Judge holding that respondent No. 1 being widow of the deceased employee would be entitled for grant of family pension from the date of death of her husband, the State of Bihar has preferred the present appeals. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The husband of respondent No. 1 herein joined the Bihar Research Society, an autonomous society registered under Societies Act, as a peon. The said society was taken over by the Government of Bihar vide Bihar Research Society (Taking Over) Act, 2007. By resolution dated 31.08.2005, the State abolished the Old Pension Rules i.e., Bihar Pension Rules, 1950 and replaced the same with New Pension Scheme i.e., Bihar Government Servant Contributory Pension Scheme, 2005, w.e.f. 01.09.2005. As per the New Pension Scheme, the employees appointed after 31.08.2005 shall be governed by the new contributary pension scheme under which the government employees appointed after 31.08.2005 shall not be entitled to the pension/family pension. The Bihar Research Society (Taking Over) Act, 2007 (hereinafter referred to as the Act, 2007) came into force on 02.03.2009 resulting in taking over of the Institute/Society where the husband of respondent No. 1 was working. The husband of respondent No. 1 died on 23.03.2013 while in service. The employees of the aforesaid Society were taken into government service vide order dated 25.03.2014   w.e.f.   02.03.2009. A corrigendum came to be issued by the State of Bihar amending the  employment order dated 25.03.2014 substituting the word “appointed” with the word “absorbed”. Clause 6 was inserted by the  corrigendum stating that prior to date of acquisition, the service would not be calculated as government service. That respondent No. 1 filed the writ petition before the High Court praying for family pension and other retiral benefits. By judgment and order dated 02.09.2015,  the learned Single Judge allowed the said writ petition and directed the State to pay the family pension to respondent No. 1 from the date of her husband’s death i.e., 23.03.2013.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Learned counsel appearing on behalf of the appellant has vehemently submitted that pension and family pension was available to the employees of the State Government who were governed by the Old Pension Rules. It is submitted that when the husband of respondent No. 1 was absorbed in the year 2014 w.e.f. 02.03.2009, the Old Pension Rules were abolished and the New Contributory Pension Scheme was replaced. It is submitted   that therefore, the Old Pension Rules were not applicable to the husband of respondent No. 1 and therefore, respondent No. 1 shall not be entitled to the family pension under the Old Pension Rules. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.1 It is submitted that the Old Pension Rules were abolished on 01.09.2005 and thereafter, the New Pension Scheme came into force,  therefore, New Pension Scheme was applicable to all the employees of the State Government, who were appointed/absorbed on or after 01.09.2005. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.2 It is submitted that a corrigendum dated 22.06.2015 was also issued by the Government making it abundantly clear that the term of Government service will be calculated only from the cut­off date i.e., 02.03.2009 and the services of the adjusted employees, prior to date of acquisition in Bihar Research Society shall not be calculated as a government service. It is submitted that in that view of the matter, the High Court has committed a grave error in allowing the family pension applying the Old Pension Rules, 1950.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.1 It is submitted that the husband of respondent No. 1 died in harness and while in service and therefore, as per clause 7(1) to the family pension scheme, on the death of her husband who died while in service, respondent No. 1 was entitled to the family pension and the family pension scheme being beneficial scheme, both, the learned Single Judge as well as the Division Bench of the High Court have rightly held that respondent No. 1 is entitled to the benefit of the family pension scheme.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. At the outset, it is required to be noted that the husband of respondent No. 1 came to be absorbed in the government service in the year 2014 w.e.f. 02.03.2009. Till 02.03.2009, he remained the employee of the Bihar Research Society, of which he was an employee and working.  The Old Pension Rules,1950 came to be abolished and the New Contributory Pension Scheme came to be introduced w.e.f.   01.09.2005.  Under the New Contributory Pension Scheme, there is no provision for pension/family pension. As per the Scheme, all those who are appointed after 31.08.2005 shall be governed by the New Contributory Pension Scheme. Therefore, at the time when the husband of respondent No. 1, who died in the year 2013, was absorbed, the Old Pension Rules were abolished and the New Contributory Pension Scheme was in existence. As per the corrigendum issued in the appointment order and as per clause 6, the prior service rendered   by   the  concerned employee prior to his absorption shall not be treated as a government service. Therefore, the husband of respondent No. 1 can be said to be a government servant and in government service w.e.f. 02.03.2009 only.  Therefore, the  husband of respondent No. 1 was  governed by the New Contributory Pension Scheme under which there is no provision for the pension/family pension. Therefore, the  High Court has committed a grave error in directing the appellant to pay the family pension to respondent No. 1 applying the Old Pension Rules, which were appliable prior to 31.08.2005. The aforesaid aspect has not been considered by the High Court at all and the learned  Single Judge simply considered that on the death of the husband of respondent No. 1, who died in harness while in service, respondent No. 1 is entitled to the family pension under family pension scheme. However, the High Court has not at all considered that on coming into force the New Contributory Pension Scheme, no government employee appointed after 31.08.2005 shall be entitled to any other benefit except under the New Contributory Pension Scheme. In that view of the matter, respondent No. 1 shall not be entitled to the family pension under the Old Pension Rules, which were not appliable at the time when the husband of respondent No. 1 came to be absorbed in the government service w.e.f. 02.03.2009. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. In view of the above discussion and for the reasons stated above, the impugned judgment(s) and order(s) passed by the High Court deserve(s) to be quashed and set aside. Accordingly, the judgments and orders passed by the learned Single Judge as well as the Division Bench of the High Court holding that respondent No. 1 shall be entitled to the family pension under the Old Pension Rules are hereby quashed and set aside. It is observed and held that as the husband of respondent No. 1 was absorbed in the government service only  w.e.f. 02.03.2009, he shall be governed by the New Pension Scheme i.e., Bihar Government Servant Contributory Pension Scheme, 2005. The present appeals are allowed, accordingly. No costs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9a592d4faaf42f32158de5badf31b32f.jpeg', '65da2615973b74661009921a7ec9f8cc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-27', 1, '', '', '2022-05-26 18:42:32', '2022-05-27 06:40:02'),
(1732, 'lhpSGA9Z9zKH5XZc4Ajw2clGb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Non-payment of rent due to the impact of Covid pandemic falls under force majeure clause and hence lease could not be terminated alleging breach of contract. Delhi High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mehra Jewel Palace Pvt Ltd Vs Miniso Life Style Pvt Ltd and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CS (Comm) 376 of 2020 decided on 25 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Amit Bansal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4.1. Plaintiff is the owner of the property bearing No.C-11, Connaught\r\nPlace, New Delhi–110001 consisting of the Ground Floor measuring about\r\n2400 square feet and basement measuring about 400 square feet (demised\r\npremises).\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4.2. A tripartite Lease Deed dated 04th January, 2018 (Lease Deed) was\r\nentered into by the plaintiff, being the lessor, and the defendant no.1 along\r\nwith one Keikaku India Private Limited, being the lessees for running a\r\ncommercial business in the demised premises. The said lease deed was duly\r\nregistered. The term of the Lease Deed was for nine years running from 1st\r\nDecember, 2017 up to 30th November, 2026 with monthly rent being\r\nRs.27,00,000/- for the period commencing from 30th January, 2018 to 30th\r\nNovember, 2020. Along with the monthly payment of rent, the defendants\r\nwere also liable to pay the statutory tax, being the Goods and Service Tax\r\napplicable on the monthly rent amount. The defendants had deposited a sum\r\nof Rs.1,08,00,000/- with the plaintiff towards Interest Free Refundable\r\nSecurity Deposit as per Clause 7 of the Lease Deed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4.3. Subsequently, vide communications dated 10th January, 2019 the\r\nplaintiff was informed of Keikaku India Private Limited withdrawing from <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Lease Deed with effect from 01st February, 2019. Thereafter, the\r\ndefendant no.2 was appointed as a new franchisee of the defendant no.1 and\r\nagreed to be bound by the terms and conditions of the Lease Deed.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4.4. On 30th March, 2020, the defendant no.1 sent an email to the plaintiff\r\ninforming the plaintiff of the closure of the demised premises on account of\r\nthe COVID-19 pandemic and requested the plaintiff to consider waiving off\r\nits obligation to pay rent.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4.5. Thereafter, on 03rd April, 2020, the defendant no.1 sent a notice of\r\nsuspension of rent to the plaintiff, invoking the force majeure clause under\r\nthe registered Lease Deed and asked for waiver of payment of rental dues\r\ntill the time the demised premises became operational. Accordingly, rent\r\nwas not paid by the defendants for the months of April, 2020 and May,\r\n2020. </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32. An analysis of the aforesaid communications exchanged between the\r\nparties would show that the force majeure clause was invoked by the\r\ndefendants at the first instance in its e-mail dated 30th March, 2020. The\r\nsame was contested by the plaintiff on the ground that the pandemic was not\r\ncovered under the terms of the force majeure clause and the payment of\r\nlease rental could not be deferred. Therefore, no agreement could be arrived\r\nat between the parties and in view thereof, the defendants did not pay any\r\nlease rental to the plaintiff other than the sum of Rs.12,50,000/-.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>33. Therefore, I am of the view that the defendants are entitled to the\r\nbenefit of the force majeure clause insofar as payment of rent for the months\r\nof April, 2020 and May, 2020 is concerned. I do not find any merit in the\r\ncontention of the plaintiff that under the force majeure clause, the payment\r\nof rent can only be delayed or postponed and cannot be waived. Clause 12\r\nof the Lease Deed specifically states that neither party shall be liable for any\r\n“delay” or “omission” in the performance of an obligation where such delay\r\nor omission is due to a force majeure condition\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. However, in my view, the force majeure clause cannot inure to the\r\nsole benefit of the lessee alone. If the lessee suffered a loss due to shut down\r\nof his shop on account of the COVID-19 pandemic, the lessor would have\r\ncontinued to incur various financial obligations, such as maintenance and\r\nupkeep of the demised premises, which he would have normally fulfilled <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">from the lease rentals being received by him. Under Clause 9 of the Lease\r\nDeed, the lessor was obliged to pay property tax, provide for insurance and\r\nrepairs of the demised premises. These obligations of the lessor would have\r\nremained whether the rent was paid by the lessee to the lessor or not. The\r\nlessor could not have claimed that he should be absolved of his obligations\r\nunder the Lease Deed on account of the force majeure event.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>35. Therefore, I am of the view that the ends of justice would be met if\r\nboth the plaintiff and the defendants equally bear the impact of the COVID19 pandemic, and the defendants pay 50% towards the lease rentals for the\r\nmonths of April, 2020 and May, 2020.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">36. It is an admitted position that the shop of the defendants remained\r\ncompletely shut from 24th March, 2020 to 17\r\nth May, 2020 i.e., almost two\r\nmonths and only re-opened on 19th May, 2020. The defendants claim that\r\nthe force majeure conditions continued even beyond the re-opening of the\r\ndemised premises and therefore, they would be entitled to waiver of rent for\r\nthe period beyond May, 2020 also. If this was the position, the defendants\r\nought to have terminated the Lease Deed and surrendered the demised\r\npremises. If on account of changing commercial realities, making payment\r\nof the lease rentals had become unviable, the defendants ought not to have\r\ncontinued with the lease. Admittedly, the lock-in period in respect of lease\r\nwas already over on 1st June, 2020. In none of their communications, the\r\ndefendants offered to surrender the possession of the demised premises to\r\nthe plaintiff. Even after the termination notice was sent on behalf of the\r\nplaintiff, the defendants continued to hold on to the demised premises. The\r\npossession of the demised premises was ultimately handed over by the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">defendants to the plaintiff only on 14th December, 2020, after filing of the\r\npresent suit by the plaintiff on 4th September, 2020.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>37. Therefore, in my view, the defendants would be liable to pay the lease\r\nrentals as per the Lease Deed from 1\r\nst June, 2020 till 14th December, 2020,\r\nwhen the possession of the demised premises was handed over. The\r\ndefendants would also be liable to pay interest at the rate of 18% per annum\r\nas provided in Clause 6.1 of the Lease Deed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>39. Penal rent in terms of Clause 14.2 could be recovered only in the\r\nevent that the lessor terminated the lease on account of breach or defaults on\r\nthe part of the lessee, including payment and other obligations. In the facts\r\nand circumstances of the present case, it cannot be said that the defendants\r\ncommitted breach of the terms of the Lease Deed. As already observed by\r\nme above, the defendants had validly invoked the force majeure clause in\r\nterms of the Lease Deed and therefore, the defendants were entitled to\r\nwaiver of rent for the months of April, 2020 and May, 2020. Therefore, it\r\ncannot be said that there was a breach of contract on behalf of the\r\ndefendants that justified termination of the Lease Deed. The plaintiff was\r\ninsisting on rents for the months of April, 2020 and May, 2020 along with\r\nthe rents of the future months. The defendants insisted that they were not\r\nliable to pay rents for the months of April, 2020 and May, 2020 under the\r\nforce majeure clause. Since the plaintiff did not agree on the waiver of the\r\nrent at all, there was no agreement between the parties with regard to\r\npayment of rent for the period of April, 2020 and May, 2020 and thereafter.\r\nConsequently, the plaintiff could not have invoked Clause 14.2 of the Lease\r\nDeed and demand additional six months? payment.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>40. Even otherwise, the plaintiff is claiming six months? additional rent in\r\nterms of the latter part of Clause 14.2 of the Lease Deed. The former part of\r\nClause 14.2 provides for additional six months of rent in the event the lessor\r\nterminates the lease for breach or defaults on the part of lessee “during the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">lock-in period”. However, the latter part of the said clause provides that in\r\nthe event the lessor terminates the lease for breach or default on the part of\r\nlessee, the lessee shall be liable to pay six months of rent to the lessor. The\r\nword “additional” is conspicuously missing from the latter part of the clause.\r\nTherefore, in terms of the latter part of Clause 14.2 of the Lease Deed, it\r\ncannot be said that the plaintiff is entitled to six months? additional rent\r\nfrom the date of termination of the lease. After the lock-in period is over, the\r\nplaintiff would only be entitled to lease rentals for the period the plaintiff\r\ncontinued to be in occupation of the demised premises.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>46. Applying the ratio of the aforesaid judgments in the present case, it\r\nemerges that the plaintiff has not even claimed in the plaint that it has\r\nsuffered a loss on account of the defendants not vacating the demised\r\npremises after the termination of the lease. Therefore, even if it is assumed\r\nthat the defendants are guilty of breach of contract, the amounts under\r\nClauses 7.2 and 14.2 can only be claimed if the plaintiff has suffered any\r\nloss on account of the said breach. Otherwise, the plaintiff cannot be entitled\r\nto any amounts over and above the lease rentals provided under the Lease\r\nDeed. It is not the case of the plaintiff that the rentals had increased during\r\nthis period or that the plaintiff had suffered losses for which the plaintiff was\r\nentitled to double the amount of monthly rent. Therefore, in view of the\r\naforesaid position of law, the plaintiff would not be entitled to claim double\r\nthe amount of monthly rent in terms of Clause 7.2 or additional six months?\r\nrent in terms of Clause 14.2. In fact, judicial notice can be taken of the fact <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that post the onset of the COVID-19 pandemic in March 2020, till\r\nDecember, 2020, there has been no increase in the rentals of commercial\r\nproperties. Therefore, ends of justice would be met if the defendants pay to\r\nthe plaintiff the lease rentals as per the Lease Deed even for the post\r\ntermination period i.e., 20th August, 2020 till 14th December, 2020, the date\r\non which the possession was handed over.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>48. In view of the fact that even after the termination notice was served\r\non the defendants, the defendants neither paid the lease rentals onwards of\r\nJune, 2020, nor vacated the demised premises, the defendants shall be liable\r\nto pay interest at the rate of 18% per annum as provided in the Clause 6.1 of\r\nthe Lease Deed. Further, the defendants shall also be liable to pay arrears of\r\nGST on the aforesaid amounts of lease rentals along with interest at the rate\r\nof 18% per annum and shall also be liable for any penalty or fine that may\r\nbe imposed by the GST authorities for non-payment of the amounts in a\r\ntimely manner.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>49. Though the present application has been filed by the plaintiff seeking\r\nsummary judgment in respect of arrears of rent/mesne profits from 19th May,\r\n2020 till 14th December, 2020, in view of the discussion above, nothing\r\nfurther survives in the suit. Accordingly, prayers „b?, „c? and „d? in the suit\r\nare decreed in the following terms:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Plaintiff is entitled to arrears of rent of Rs.27,00,000/- for the months\r\nof April, 2020 and May, 2020;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) Plaintiff is entitled to arrears of rent of Rs.70,54,839/- for the period\r\ncommencing from 1st June, 2020 till 19th August, 2020;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">(</span><span style=\"font-size: 12pt;\">iii) Plaintiff is entitled to mesne profits/occupation charges of\r\nRs.91,45,161/- for the period commencing from 20th August, 2020 to\r\n30th November, 2020;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>(iv) Plaintiff is entitled to mesne profits/occupation charges of\r\nRs.14,02,258/- for the period commencing from 1st December, 2020\r\nto 14th December, 2020;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(v) Plaintiff is entitled to interest at the rate of 18% per annum on the\r\naforesaid amounts from the date when they became due i.e., 07\r\nth day\r\nof each month, as per Clause 6.1 of the Lease Deed;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(vi) Defendants shall be liable to pay arrears of GST on the aforesaid\r\namounts of lease rentals along with interest at the rate of 18% per\r\nannum and shall also be liable for any penalty or fine that may be\r\nimposed by the GST Authorities for non-payment of the amounts in a\r\ntimely manner;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(vii) Plaintiff is entitled to recover the unpaid electricity charges\r\namounting to Rs.1,53,196/-;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(viii) Plaintiff is entitled to recover the unpaid water charges amounting to\r\nRs.4,313/-.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>50. The defendants shall be entitled to claim set off in respect of the\r\nabove amounts of</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) the Interest Free Refundable Security Deposit of\r\nRs.1,08,00,000/-;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) the sum of Rs.90,00,000/- already released in favour of\r\nthe plaintiff vide order dated 24th November, 2020; and,</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iii) the sum of\r\nRs.12,50,000/- paid on 17th June, 2020 by the defendants in furtherance of\r\nthe pre-approved payment plan offered by the plaintiff. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 52. All pending applications stand disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '308d2c99d40ef9ec456029f013c0028f.png', '9dcccf4013f2b683e5cb38e18984ca84.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-27', 1, '', '', '2022-05-26 20:05:14', '2022-05-27 09:05:10');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1733, '7ccqoErnzEnrfuVNLBaSl7tWy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Production of same medical bills repeatedly in MVC case to get higher compensation. Karnataka High Court deprecates the conduct of the Advocate.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Divisional Manager The Oriental Insurance Co. Ltd Vs Saalibai Kasu Rathod and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.F.A 200789 of 2018 decided on 19 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice J.M. Khazi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The brief facts leading to filing of claim petition are that on 08.05.2016 at about 6.30 p.m., petitioner was proceeding to Wadi town to attend her relative\'s marriage on motor cycle bearing registration No.KA-32/EG-4101 (hereinafter referred to as offending vehicle), as a pillion rider. One Kailash, S/o Shamrao was riding the motor cycle. When they were near the bus stand at Kalakatta village, on the hump the rider of the motor cycle rode it in a high speed, in a rash or negligent manner as a result of which both petitioner and rider fell down. In the said accident, petitioner sustained head injuries. Immediately she was shifted to Government Hospital, Wadi and after first aid, she was taken to United Hospital, Kalaburagi. She took treatment as in-patient from 08.05.2016 to 23.05.2016. On account of the injuries sustained by the petitioner, inspite of prolonged treatment, she is not completely cured. She is suffering from permanent partial disability. She has spent Rs.3,00,000/- for treatment and requires additional sum of Rs.2,00,000/- further treatment. As the owner and insurer of the offending vehicle, respondents are jointly and severally liable to pay the compensation and hence the petition. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>Respondent No.2 has appeared and filed written statement denying that the accident occurred due to the rash or negligent act of the rider of the offending vehicle. At the time of alleged accident, the rider of the offending vehicle was not having a valid and effective driving license. Respondent No.2 has also denied the age, income, occupation of the petitioner, the nature of injury sustained, period of treatment, expenses incurred and that injuries have resulted in permanent partial disability. The compensation claimed is exorbitant, baseless and excessive.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>Challenging impugned judgment and award, respondent No.2  has filed appeal contenting that the  impugned judgment and award is against the law, evidence and circumstances of the case and as such liable to be set aside. The petitioner has produced photocopies of medical bills and based on it the Tribunal has erred in granting compensation in a sum of Rs.2,26,700/- under the head medical expenses. The disability assessed at 27% of the whole body by the Tribunal is on the higher side. The compensation granted under various heads is highly exorbitant and baseless. At the time of accident, the petitioner was not wearing helmet and as such she has contributed towards the accident. Therefore, her part of the negligence is to be calculated and proportionate compensation is required to be reduced. The Tribunal has also not appreciated the evidence of RW-1 and prays to allow the appeal.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22.7 The manner in which these medical bills are produced goes to show that the petitioner and her counsel have willfully and intentionally mislead the Tribunal to grant higher compensation. As noted earlier, in all 154 medical bills are produced. When large number of bills are produced, it is bound to escape the attention of the Tribunal/Court. However, the Tribunal is duty bound to examine each and every bill to see whether they are genuine or any bills are repeated. As Officers of the Court, the learned counsel representing the petitioner as well as respondents are required to assist the Court. Especially the learned counsel for the petitioner should not mislead the Court by producing such copies of the bills. The Tribunal should insist that the bills should be produced in chronological order, so that if any bill is repeated which is of the same date and voucher number, then the Tribunal/Court will be in a position to examine it. The conduct of the learned counsel for petitioner in producing the same bills time and again in different forms i.e., once the original and other time Xerox copy and some other time colour Xerox copy, in order to get higher compensation is deprecated. Thus, from the scrutiny of the medical bills, it is evident that petitioner is entitled for compensation only in a sum of Rs.99,960/- as against Rs.3,68,646/- claimed by the petitioner and Rs.2,26,700/- granted by the Tribunal. Therefore, the compensation granted under the head medical expenses is restricted to Rs.99,960/-.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space:pre\">	</span>Diet and attendant charges: The Tribunal has granted compensation in a sum of Rs.20,000/- under this head. Having regard to the fact that the petitioner has suffered multiple fractures and it would be reasonable to expect that she was under treatment for a period of around three months and therefore, compensation granted under this head is reasonable and it requires no interference.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24.<span style=\"white-space:pre\">	</span>Compensation during treatment period/Loss of income  during  laid  up period:  At the  rate of  Rs.6,000/- p.m. the Tribunal has granted compensation in a sum of Rs.16,000/-. As already noted and as admitted by the petitioner, a female coolie was paid Rs.3,000/-p.m i.e. Rs.100/- per day and therefore the monthly income of the petitioner is required to be taken at Rs.3,000/-. At this rate, for a period of three months petitioner is entitled for compensation in a sum of Rs.9,000/- p.m. under the head loss of income during laid up period and therefore the same is restricted to Rs.9,000/-p.m. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25.<span style=\"white-space:pre\">	</span>Loss of future earnings: The Tribunal has granted compensation in sum of Rs.1,36,080/- under this head. It has relied upon the evidence of PWs-2 and 3 to determine the disability suffered by the petitioner. During the course of his evidence, PW-2 has deposed that on account of brain injury, the petitioner complains that there is severe giddiness, reeling sensation and fallen number of times and sustained minor injuries, neck tenderness and neck movements are painful, unable to carry weight on head, unable to balance due to cerebella contusion and SDH etc, and psychosomatic disturbances like intolerance to hot weather conditions, irritability memory abrasions, lethargy etc; is impairing the routine physical working and accounts for disability of 35%. Partial loss of hearing in R- ear is due to damage of auditory nerve accounts for eranial nerve disability of 10%. He has calculated the disability at 45% of the whole body.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26.<span style=\"white-space:pre\">	</span>Future medical expenses: The Tribunal has granted compensation in a sum of Rs.1,00,000/- under this head. However, there is no evidence as to what exactly is further treatment petitioner is required. In fact at the time she was undergoing treatment, she has refused to undergo surgery with regard to the fracture of upper limb. Consequently, no implants are inserted. In the absence of any evidence, the Tribunal has erred in granting compensation in a sum of Rs.1,00,000/- and there is no basis for arriving at such figure. Anyhow having regard to the fact petitioner is aged 65 years at the time of accident, it would be reasonable to grant compensation in a sum of Rs.15,000/- under this head and accordingly, compensation for future medical expenses is restricted to Rs.15,000/- as against Rs.1,00,000/- granted by the Tribunal. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>27.<span style=\"white-space: pre;\">	</span>Loss of amenities: The Tribunal has not granted any compensation under the head loss of amenities. Having regard to the nature of injuries sustained, period of treatment, it would be appropriate and reasonable to grant compensation in a sum of Rs.25,000/- under the head loss of amenities of life.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>30.<span style=\"white-space:pre\">	</span>In the result the appeal filed by the respondent No.2 Insurance company requires to be allowed in part. It is pertinent to note that though in this appeal compensation under the head loss of amenities is granted (which was not granted by the Tribunal), having regard to the fact that the compensation granted under other heads is reduced, in the result appeal filed by the petitioner fails and accordingly I proceed to pass the following order</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>MFA.No.201966/2018 is filed by the petitioner is dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>I.A.No.1/2021 filed by petitioner under Order 41 Rule 27 r/w/s 151 C.P.C is also rejected. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (iii)<span style=\"white-space:pre\">	</span>MFA.No.200789/2018 is filed by the Insurance company is allowed in part</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv)<span style=\"white-space:pre\">	</span>Petitioner is entitled for total compensation in a  sum of Rs. 2,80,540/- as against Rs.5,98,000/- granted by the Tribunal together with interest at 6% p.a. from the date of petition till realization.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(v)<span style=\"white-space:pre\">	</span>Respondent No.2 is directed to pay the compensation together with interest at 6% p.a. on Rs.2,65,540/- (i.e., petitioner is not entitled for interest on Rs.15,000/- under the head future medical expenses) from the date of petition till realization (minus the compensation already paid/deposited) within a period of six weeks from the date of this order.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(vi)<span style=\"white-space:pre\">	</span>If the amount in deposit made by respondent No.2 is in excess of its liability, it is entitled to withdraw the same.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(vii)<span style=\"white-space:pre\">	</span>If the amount paid by respondent No.2 is in excess of entitlement of the petitioner, respondent No.2 is entitled to recover the balance from the petitioner.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(viii)<span style=\"white-space:pre\">	</span>The registry is directed to transmit the trial Court record along with copy of this order to the Tribunal.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'cc925b35f61d879e4322965b617ca4c5.JPG', 'fa345f4451849246a7c6453e03c459e0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-28', 1, '', '', '2022-05-27 20:41:54', '2022-05-28 05:18:59'),
(1734, '56Xqg16Cip12MLjMiSIiv0a43', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Unlike Company, if an offence is committed by Partnership Firm, it is an offence committed by its partners. There is no need to make Partnership Firm an accused in criminal case. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sanjay Sreesha Vs Serious Fraud Investigation Office Ministry of Corporate Affairs.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 2136 of 2016 decided on 19 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Natarajan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The case of the petitioner is that the respondent is Serious Fraud Investigation (officer herein referred as SFIO) filed complaint under section 200 of Cr.P.C against the petitioner for violation of Section 240 (3) of Companies Act, alleging that they issued summons to the petitioner on 16.06.2011 and he has not replied to the notice. Again one more summons issued on 20.06.2011 to be appeared on 28.06.2011 and it is also alleged the final summons was issued on 01.07.2011 to appear before them on 07.07.2011 and he has not appeared and he has sent a reply that he was not employed  as Auditor of the Company. Therefore private complaint came to be filed and the trial court took the cognizance of the offence against the petitioner, which is under challenge. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Learned senior counsel appearing for the petitioner has mainly argued on the ground, the petitioner was not employed by the Company as per Section 240 of Companies Act. The petitioner was the partner in the firm in which the petition was appointed as Auditor. Such being the case, without making the firm as an accused the petitioner cannot be prosecuted and he cannot be vicariously be held liable for the penal provisions. Therefore, prayed for quashing the proceedings.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Per Contra learned counsel for the respondent has objected the petition and contended that the petitioner is the Auditor. The eligibility  criteria for appointing the Auditor is that he must be a Chartered Accountant as per Section 226 of the Companies Act and the partner who is practicing in India and if the firm is appointed as Auditor then he has to sign as an Auditor of the Company. Therefore, the petitioner being a Accountant was appointed as an Auditor and he is running the firm, therefore even without making firm as party he is liable for the responsibility of answering the questions, as he was appointed by the resolution of the Company. Further contended that the petitioner himself signed the Audit Report as per Section 229 of Companies Act and as per 240 of Companies Act, it is the duty of all the Officers, employees and Agents of the Company and where the affairs of any other body corporate are investigated by the virtue of Section 239 of Companies Act, they have to furnish the details requested by the investigating agency, in view of the powers of this Section 239 of Companies Act. Therefore, the petitioner has been appointed as Auditor with eligibility criteria of Chartered Accountant, he is responsible person to submit the information to the investigating agency, failure to furnish the information, he has to be prosecuted. Therefore, the petitioner is liable to be prosecuted for the offence punishable under Section 240 (3) of Companies Act, 1956. Therefore the special counsel prayed for dismissal.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. Having heard the arguments and perused the records. On perusal of the same, it reveals that the respondent SFIO filed private complaint against the petitioner for the offence punishable under section 240 (3) of Companies Act alleging that the petitioner was appointed as an Auditor of the company and notice was issued by the respondent for furnishing some details of the Company and he has failed to furnish. Therefore the offence was committed by the petitioner, hence liable for punishment and penal action.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. The learned senior counsel relied upon judgment of Hon\'ble Supreme Court Aneeta Hada\'s case stated supra where the Hon\'ble Supreme Court while considering Section 141 of the Negotiable Instruments Act, where he has held that without making Company as accused the Director or the Managing Directors or authorized signatories, the penal provisions will not attract. The judgment of the Hon\'ble Supreme Court has been followed by the various High Courts and Supreme Court in many cases and it is well settled that without making Company as accused the Directors or the Managing Directors are not vicariously held liable for the offence committed by the company. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. In CBI Vs K.Narayana Rao case, the Hon\'ble Supreme Court has held, the advocate who gave an advice as legal advice or opinion he cannot be prosecuted. In this regard the respondent  counsel  has contended the advocate who has given opinion based upon the document cannot be considered as employee of the Company as per Section 240 of Companies Act. Therefore on that context Supreme Court quashed the criminal proceedings. But here in this case the petitioner was statutorily appointed under the Companies Act, therefore it is contended the said judgment is not applicable to the case on hand.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. In my considerate opinion there is substance in the argument addressed by the respondent counsel, that auditor appointed under the Companies Act as per section 226 of Companies Act and there are some duties cast upon the Auditor of the company and they are responsible to be answered or liable to give information to the authority under section 239. As per Section 240 of Companies Act,  the employees and other persons also are required to give the information. Therefore, the said judgment relied upon by the petitioner counsel is not acceptable to the case on hand. The judgment of the co-ordinate bench Panduranga\'s case stated supra in respect of the Company and by relying upon the judgment of the Supreme Court in  Sunil  Bharti  Mittal\'s  case  quashed the criminal proceedings. The Hon\'ble Supreme Court already covered the said decision in Aneeta Hada\'s case.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. In Sunil Bharti Mittal\'s case stated supra  the Hon\'ble Supreme Court has taken the similar view that without making Company as accused the Court cannot proceed to issue summons against the Directors of the company. The judgment relied by the counsel for the petitioner are all related to Companies and it\'s Directors where no criminal prosecution can be lodged against the Directors or Managing Directors without making company as accused as the company has vicarious liability. But here in this case, petitioner who is Chartered Accountant is running a firm in the name of N.D.S. & Co., but in literal meaning N.D.S. & Co., is not a company registered under  the company\'s act, where the company is a legal entity having its Managing Director, Director and others shareholders but the petitioner- N.D.S. & Co., is a firm. Admittedly the Mega City (Bangalore), Developers by their resolution have appointed the firm of the petitioner as it\'s Auditor and admittedly for appointing an Auditor the eligibility criteria is Chartered Accountant.  The firm though appointed as a Chartered Accountant the proviso of Section 226 reveals \"the person who is in charge in India as a partners  have  signed  the  audit   reports\". Therefore, for all practical purpose, the petitioner is the partner of the firm and admittedly he has signed the audit reports as partner of the firm. It is well settled that the literal meaning of the firm and the partner is that, collectively it is a \'firm\'  and individually called as a partner. Therefore a partner and a firm cannot be bifurcated separately. It is not like a legal entity under the Companies Act. It is like  a proprietorship business where the proprietor and proprietorship are one and the same. Likewise the petitioner is a Chartered Accountant who is eligible for the appointment of Auditor and because of the fact that he is running a firm, his firm was appointed as Auditor and for all practical purposes, a partner of the firm individually called the partner and collectively called as \'firm\'. Therefore, the firm and the partner cannot be divided into two separate entities or the partner cannot be considered as employee of the company but he is appointed as Auditor under the Company\'s Act and it is a statutory appointment under the Companies Act. Therefore he is required to answer the queries or information sought by the respondent. Therefore he cannot state that he is appointed as employees and he is not a firm. A firm and partners are one and the same person and as per proviso to the Section 226 of Companies Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. In my considered opinion a partnership firm is not a corporate entity, it does not have a separate legal persona and this has several important legal consequences in the relationship between the parties all rights and duties only exist between the parties, inter se the right and duties of the partnership are the rights and duties of the partners for as per the partnership deed. Therefore, a partner cannot be bifurcated from a firm, for example for a firm minimum two partners are required, if one partner is retired either by resignation or by death, the firm becomes a proprietorship. Therefore, merely the petitioner running a firm in the name of N.D.S & CO., but it is not a legal entity and it cannot be placed on par with the companies which is registered under the Companies Act. A partnership firm is not a separate legal entity distinct from its partner it is merely a collective name given to the individuals composing it and even as per the definition of the Indian Partnership Act, as person who have entered into partnership with one another called individually \"partners\" and collectively \"a firm\" and the name under which their business is.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Therefore if an offence committed by the firm, is also an offence committed by the partners, it cannot be bifurcated as partners and the firm.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Therefore, in my considered opinion, the judgment relied by the counsel for the petitioner is not applicable to the case on hand and therefore the criminal proceeding cannot be quashed against him.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Therefore, the Trial Court, rightly took the cognizance against the petitioner for the offence punishable under section 240(3) of Companies Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Accordingly, the criminal petition filed by the petitioner is hereby dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7f228150f9276d4f547c85c412782dfc.jpeg', '56cf613eaaf257ca63f99518a5d5ca66.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-28', 1, '', '', '2022-05-27 21:18:04', '2022-05-28 10:26:32'),
(1738, 'pYn114W1jYuEh8Fcu7AAIP6VW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'No party should suffer due to the act of court. Right accrued as on the date of writ petition cannot be taken away by amendment inserted during the pendency of the petition. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Indocil Silicons Pvt Ltd Vs Union of India and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 1920 of 2021 decided on 27 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice Ritu Raj Awasthi and Justice S.R. Krishna Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Petitioner was granted a Prospecting License dated 14.8.2007 for iron ore and associated minerals over an area of 1500 hectares in Sandur Taluk, Bellary District by the Government of Karnataka, for a period of 3 years. The prospecting is to be undertaken in accordance with the requirements of Mineral Conservation and Development Rules, 1988 and prospecting report is required to be submitted. In the event that on such prospecting, mineable quantity of mineral is found in the scientific prospecting and the prospecting report is found to be in accordance with law, the licensee has a right in law to apply for the mining lease in terms of Section 11 of the MMDR Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.1 It is contended that in accordance with the Prospecting License and the MMDR Act, the petitioner undertook detailed prospecting operations in terms of Prospecting Scheme duly approved by Indian Bureau of Mines at considerable cost to the petitioner. Based on the scientific operations undertaken by the petitioner, the petitioner was able to establish mineable reserves of iron ore of low grade (35% to 45%) and quartz ore in the license area. Thereafter, the prospecting report was submitted by the petitioner to IBM in terms of the MCDR 1988, as well as to the State Government of Karnataka on 06.10.2008. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.2 It is further contended that on successful completion of the prospecting operations and establishment of minerals within the license area the Petitioner submitted an Application for grant of mining lease dated 6.10.2008 along with its detailed Prospecting Report, to the Director, Department of Mines and Geology, Government of Karnataka. Along with such application, the petitioner also submitted a Demand Draft of Rs. 3,500/- for the fees for the application in terms of Rule 22(3) of the Mineral Concession Rules, 1960. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.3 It is contended that on 27.3.2015, the Mines and Minerals (Development and Regulation) Amendment Act, 2015 was enacted to amend the MMDR Act with effect from 12.1.2015. As per the newly inserted Section 10A (1) of the said Act, all pending applications for mining leases were declared to be ineligible other than the exceptions created in sub-clause 2 of Section 10A. it is contended that the legislature being alive to the vested rights which had already accrued to the prospecting licensees who had undertaken the entire prospecting operations at their own cost, with a view to seek mining leases, if the availability of mineral was proved, protected their rights to get mining leases under Section 10A(2)(b). Accordingly, the  application of the Petitioner herein for grant of mining lease was valid and saved under the aforesaid provision. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.4 Pursuant to the said amendment, the Government of Karnataka issued a Standard Operating Procedure vide Government Order dated 25.5.2016, to process applications for grant of mining lease in terms of Section 10A(2)(b) of the MMDR Act. Moreover, on 27.6.2016, the Government of India directed all State Governments to expedite the processing and disposal of concession proposals for seeking approval of the Central Government under Section 10A(2)(b). It is further contended that after undergoing the level-by-level scrutiny of the documents and information submitted as prescribed in the said SOP, the petitioner’s proposal came to be approved by the Commissioner, Department of Mines and Geology for grant of mining lease on 17.8.2016. Thereafter, the petitioner’s proposal was also scrutinized by the Screening Committee which had been constituted for the very purpose of ensuring completeness of the proposal submitted by the applicant and was approved by the Screening Committee on 19.9.2016. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.5 It is also contended that the petitioner’s proposal was duly examined by the Ministry of Commerce and Industries of the State of Karnataka, and thereafter with the approval of Minister of Mines, State Government of Karnataka, the same was forwarded to the Central Government on 21.7.2017. The said letter recorded that  the application was eligible for grant of mining lease under Section 10A(2)(b) of the MMDR Act, and requested the Ministry of Mines, Government of India to accord its approval under the said provision subject to the area finally available after conducting the total station/ DGPS survey including all safety margins.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>31. The MMDR Amendment Act 2021 has to be interpreted keeping in view the principles laid down by the Supreme Court in Shyam Sunder v.  Ram  Kumar and Suhas H. Pophale v. Oriental Insurance Co. Ltd. According to the respondents, all cases under Section 10A(2)(b) would stand covered by the said provision. The argument though attractive at first does not merit acceptance. To accept the said submission would result in completely rendering Section 10A(2)(b) otiose. The said section protected rights of a certain category of persons who would stand vested with rights to obtain the mining concession on satisfaction being arrived at by the State Government. If the contention is  accepted then all those cases where the satisfaction of the State has been arrived at, including where previous approval of the Central Government, where necessary, has also been given and the mining lease has not been executed awaiting the grant of statutory permissions like mining lease, environmental clearances, forest clearances etc, the same would also stand lapsed. This would be contrary to the objective being sought to be achieved viz., to avoid delay. The lapsing of such rights and auctioning the lease would not result in immediate production of minerals as even after auction the successful bidder would have to obtain the clearances and permissions in terms of Rule 10 of the Mineral (Auction) Rules, 2015 and considering that t he taking of permissions is time consuming a period of 5 years is provided to execute the lease deed. In effect, if all cases which would fall within Section 10A(2)(b) are to be considered to be covered by the proviso then it would necessarily lead to another 5 years or even more taking into account the process of auction would also  take some time, before mineral production can start. This would never have been the intention of the legislature or the effect contemplated. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>32. Being conscious of the outcome that the legislature desired the term \"cases covered under this clause\" was qualified by \"including pending cases\". The use of the word \"includes\" or \"including\" though generally used as a means of extension, however this is not an inflexible rule and depending on the context in which it is used, it can also refer to \"means\".</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">33. In South Gujarat Roofing Tiles Manufacturers Association and Anr. vs State of Gujarat & Anr., </font></span><font face=\"Calibri, sans-serif\">(1976) 4 SCC 601 </font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">the Supreme Court while considering explanation to entry 22 to Schedule of Minimum Wages Act and considering the context in which it was used arrived at the findings that </span><font face=\"Calibri, sans-serif\">the word \"includes\" had not been used as a word of extension but rather as a word of limitation and in the sense of \"means\". The said conclusion was arrived at by the Court as though the entry 22 was couched in wide terms as \"employment in pottery industry\" vide the explanation it was mentioned that the entry would include manufacture of 9 articles of pottery. As such no purpose would have been achieved by use of the term \'includes\' as it is generally understood as a word of extension.</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>34. Similarly in the present case the term \"cases covered under this clause\" was sufficient and wide enough to cover all cases however the use of word \"including\" reflects that the legislature  wished  to restrict the proviso only to \"pending cases\" and not all cases to avoid the anomaly it would result  in,  as noticed above. The word \"including\" in the proviso to Section 10A(2)(b) as such is used as a  limiting word and not as an extension or expansion and is to be understood in the sense of \"means\" .</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">36. This brings us to the next logical question as to which cases would be covered under the term \"pending cases\". The answer to the said question is also in the language of Section 10A(2)(b) which provides that a person shall have a right for obtaining the mining lease on satisfaction of the State Government of the  conditions mentioned in clause (i) to (iv). </font><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">Therefore, where the satisfaction of the State Government has been arrived at, the State is rendered functus officio and the right stands crystallized. The proviso seems to have an effect of lapsing the right to obtain, which could only be referable to cases where the satisfaction is not yet/yet to be arrived at and not to cases where satisfaction is already arrived at by the State Government. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">37.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">Further the term “lapse\" as used in the proviso to Section 10A(2)(b)is generally used for reverting .of a right from a party which has failed to fulfill its obligations or conditions under  which  such right was given. The said term \"lapse\" is also used in Section 4A(4) of the MMDR Act where again the right lapses on failure of the lessee to start  mining operations. Parliament has employed  the  said  term also in the Land Acquisition Act, 1894 and the Right to Fair Compensation and Transparency in  Land Acquisition, Rehabilitation and Resettlement Act, 2013 whereunder on the failure of the statutory authority to compete the acquisition process within the statutorily prescribed time period, the acquisition proceedings lapse.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>38. Therefore, keeping in view the aforesaid principles and the use of specific terms, it is evident that the legislature was desirous of applying the proviso to only a certain class of persons within Section 10A(2)(b) viz ., those who had either till date not completed the reconnaissance or prospecting operations despite 5 years from 2015, which was the outer limit provided by the Act under unamended Section 7 or those whose applications were yet to be processed and the State had not arrived at the satisfaction. Any other interpretation would do violence to the language  and  intention  of  the legislature . It would never have been the intention of the legislature to punish a party who had complied with the law or to allow the executive to defeat the rights of parties by delaying performing their duties.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>40. If the legislature was desirous of revoking the said vested rights, the amendment would have been made to the main provision or the said provision could have been omitted with retrospective effect. Having not done so and rather having opted the legislative tool  of  a proviso being inserted to the  main  provision,  the  well settled principles of the object and purpose of a proviso would come into play. The Respondents have also relied on a large number of judgments with regard to effect of a proviso, however none of the said judgments support the view that the proviso can have the effect of nullifying the main provision itself, as such the present judgment is not being burdened with the said judgments which have otherwise been considered by the constitution bench in Indore Development (supra). </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>41. As the proviso does not take  away  vested ri ghts with retrospective effect, the writ petition which has been filed by the petitioner claiming that the right under Section 10A(2)(b) of the Mines and Minerals (Development and Regulation) Act, 1957 as already fructified and being a vested right, has to be proceeded with based on the law as it stood then and taken to its logical conclusion. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>42. In view of the aforesaid facts and circumstances, we are of the considered opinion that the provisos to Section 10A(2)(b) of the MMDR Act, 1957 as inserted vide Amendment Act No.16 of 2021 w.e.f. 28.03.2021 are not applicable to the applications, claims etc., of the petitioners who are entitled to obtain mining leases and lease deeds from the State Government without reference to the said amendment or the proviso inserted thereby.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>W.P.No.1920/2021 is allowed. The respondent No.1 as well as respondent Nos.2 and 3 are directed to issue the necessary orders for grant of lease under sub- clause (9) of Rule 7 of Mineral Concession Rule, 2016 within a period of 6 weeks whereafter the petitioner will be entitled to execution of the lease deed on satisfying the conditions stipulated in clause (10) of Rule 7 of Mineral Concession Rule, 2016.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>W.P.No.8807/2020 is hereby allowed and the respondents are directed to take necessary steps to  execute Mine Development and Production Agreement and Mining Lease in favour of the petitioner and do all  necessary acts, deeds and things pursuant thereto in accordance with law without reference to the provisos to Section 10A(2)(b) of the MMDR Act, 1957 as inserted vide Amendment Act No.16 of 2021 w.e.f. 28.03.2021 as expeditiously as possible and within a period of six weeks from the date of receipt of a copy of this order.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space:pre\">	</span>W.P.No.17402/2021 is hereby allowed and the impugned order / letter dated 01.06.2021 passed / issued by the 3rd respondent is hereby quashed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iv)<span style=\"white-space:pre\">	</span>W.P.No.5973/2021 is hereby allowed and the respondents are directed to take necessary steps to  execute Mine Development and Production Agreement and Mining Lease in favour of the petitioner and do all  necessary acts, deeds and things pursuant thereto in accordance with law without reference to the provisos to Section 10A(2)(b) of the MMDR Act, 1957 as inserted vide Amendment Act No.16 of 2021 w.e.f. 28.03.2021 as expeditiously as possible and within a period of six weeks from the date of receipt of a copy of this order.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a32db4ec3c46fa28d90b5b854716d4f2.JPG', '6a691267def7ac0b20ccb838dd394e44.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-29', 1, '', '', '2022-05-28 17:29:18', '2022-05-29 07:02:25');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1736, 'lrc4ZdYnU8t6a2tdMRMihCL5J', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Conviction based on circumstantial evidence. The circumstances \'\'must or should be\'\' established and not \'\'may be\'\' established. Supreme Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chandrapal Vs State if Chhattisgarh (earlier M.P.)  <o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 378 of 2015 decided on 27 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dhananjaya Y Chandrachud and Justice Bela M. Trivedi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. As per the case of prosecution, the deceased Kumari Brindabai was the\r\ndaughter of Bhagirathi Kumhar who belonged to the caste Kumhar. The\r\ndeceased Kanhaiya Siddar was the resident of village Panjhar and\r\nbelonged to the caste Siddar (Gaur). There was a love affair going on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">between Kumari Brindabai and Kanhaiya Siddar, which the said\r\nBhagirathi and his brother Chandrapal did not approve. On 02.12.1994,\r\nboth Kumari Brinda and Kanhaiya went missing. A search was made,\r\nhowever, no missing report was lodged. On 11.12.1994, at about 09:00\r\nam, Lodhu (PW-2) went to Kajubadi (Cashew Nursery) and saw that the\r\ndead bodies of the deceased Kumari Brinda and Kanhaiya were hanging\r\non a cashew tree. He therefore came back and informed the Sarpanch\r\nBaran Singh Thakur. Their bodies were in decomposed state and were not\r\nidentifiable, however the informant Chandrapal identified the dead bodies.\r\nThereafter, Merg intimations were lodged by Chandrapal and Bholasingh\r\n(PW-4) at about 16:00 hrs. and 16:05 hrs. on 11.12.1994, which were\r\nregistered at no. 67/94 and 68/94 respectively. The dead bodies were sent\r\nfor postmortem. In the postmortem report of the deceased Kumari Brinda\r\n(Ex. P/22), conducted by Dr. R.K. Singh (PW-13), it was opined that the\r\nligature mark over her neck was antemortem in nature, and the cause of\r\ndeath appeared to be Asphyxia due to hanging. In the postmortem report\r\n(Ex. P/23) of the deceased Kanhaiya also, it was opined that the cause of\r\ndeath appeared to be Asphyxia due to hanging. In both the postmortem\r\nreports, it was stated that the death had occurred within 8 to 10 days and\r\nthe nature of the death was suicidal. As per the further case of the\r\nprosecution, on 02.12.1994, the deceased Kanhaiya was sitting at the\r\npremises of village Panchayat, where some TV programme was going on </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">He, thereafter, left the said place and went to the hand pump for rubbing\r\nhis axe (gandasu). At that time the accused Chandrapal called Kanhaiya\r\nand took him to his house, shut him down in the room and all the accused\r\ni.e., Bhagirathi, Chandrapal, Mangal Singh and Videshi in furtherance of\r\ntheir common intention pressed his neck and committed his murder.\r\nThereafter, the accused Mangal Singh and Videshi committed the murder\r\nof Kumari Brinda. After committing their murders, they kept the dead\r\nbodies of Kanhaiya and Brinda in the house upto 04.12.1994 and then\r\ntook the dead bodies to Kajubadi. The accused thereafter hanged the dead\r\nbodies of both the deceased by tying the noose in their necks with the tree\r\nof cashew in the Kajubadi and attempted to give it the shape of their\r\nhaving committed suicide.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. The Sessions Court framed the charge against the four accused i.e.,\r\nBhagirathi, Chandrapal, Mangal Singh and Videshi, for the offence under\r\nsection 302, in the alternative under section 302 read with section 34 of\r\nIPC. Each of the accused was also separately charged for the offence\r\nunder section 201 read with section 34 of IPC, as also for the offence\r\nunder section 3(2)(v) of the Schedule Caste and Schedule Tribe\r\n(Prevention of Atrocities), Act, 1989. The prosecution to bring home the\r\ncharges levelled against the accused had examined 16 witnesses and also\r\nadduced documentary evidence. The First Additional Sessions Judge, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Raipur (Chhattisgarh), after the appreciation of the evidence on record,\r\nvide the judgement and order dated 03.08.1998, acquitted all the accused\r\nfrom the charges levelled against them under section 3(2)(v) of the SC ST\r\nAct, however, found them guilty of the offences under section 302 and\r\n201 read with section 34 of IPC. They all were sentenced to imprisonment\r\nfor life for the offence under section 302 read with section 34 of IPC, and\r\nwere directed to undergo rigorous imprisonment for a period of two years\r\nfor the offence under section 201 read with section 34 of IPC.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. Being aggrieved by the judgement and order passed by the Sessions\r\nCourt, the accused Bhagirathi, Chandrapal and Mangal Singh preferred an\r\nappeal being the Criminal Appeal No. 1812 of 1998 and the accused\r\nVideshi preferred an appeal being Criminal Appeal No. 2005 of 1998\r\nbefore the High Court of Chhattisgarh at Bilaspur. The High Court vide\r\nthe impugned judgement and order, confirmed the conviction and\r\nsentence imposed on the accused no. 2 Chandrapal for the offence under\r\nsection 302 read with section 34, and under section 201 read with section\r\n34 of IPC and accordingly dismissed the Criminal Appeal No. 1812 of\r\n1998 qua the said accused Chandrapal. However, the High Court set aside\r\nthe conviction and sentence imposed on the accused Bhagirathi Kumhar,\r\nMangal Singh and Videshi for the offence under section 302 read with\r\nsection 34 of IPC, nonetheless confirmed their conviction for the offence </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under section 201 read with section 34 of IPC, and sentenced all of them\r\nto the period already undergone by them. Accordingly, the Criminal\r\nAppeal No. 1812 of 1998 and 2005 of 1998 stood partly allowed. The\r\npresent appellant-accused Chandrapal being aggrieved by the said\r\njudgement and order passed by the High Court has preferred the present\r\nappeal.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. At the outset, it may be stated that undisputedly the entire case of the\r\nprosecution rested on the circumstantial evidence, as there was no eye\r\nwitness to the alleged incident. The law on the appreciation of\r\ncircumstantial evidence is also well settled. The circumstances concerned\r\n“must or should be” established and not “may be” established, as held in\r\nShivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra1\r\n. The\r\naccused “must be” and not merely “may be” guilty before a court can\r\nconvict him. The conclusions of guilt arrived at must be sure conclusions\r\nand must not be based on vague conjectures. The entire chain of\r\ncircumstances on which the conclusion of guilt is to be drawn, should be\r\nfully established and should not leave any reasonable ground for the\r\nconclusion consistent with the innocence of the accused.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. It is also needless to reiterate that for the purpose of proving the charge for\r\nthe offence under Section 302, the prosecution must establish “homicidal\r\ndeath” as a primary fact. In order to convict an accused under Section 302,\r\nthe court is required to first see as to whether the prosecution has proved\r\nthe factum of homicidal death. So far as the facts of present case are\r\nconcerned, the evidence of PW-13 Dr. R.K. Singh, who had carried out\r\nthe post-mortem of the deceased Brinda and Kanhaiya, would be most\r\nrelevant in this regard. He had stated in his deposition before the court,\r\ninter alia, that on 12.12.1994, he had carried out the post-mortem of\r\nKumari Brinda, daughter of Bhagirathi, and of Kanhaiya alias\r\nChandrashekhar Gaur. The dead bodies of both the deceased were in\r\ndecomposed state. He had further stated that the knot mark present on the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">neck of the deceased Brinda was ante-mortem, and that the cause of death\r\nappeared to be Asphyxia due to hanging. The death had taken place within\r\n8 to 10 days and the nature of death was Suicidal. The said Doctor had\r\nstated similar facts for Kanhaiya that the dead body of Kanhaiya was\r\nfound bent towards left side from his neck and a ligature mark having size\r\n10” x 5” was present on the neck. The cause of death appeared to be\r\nAsphyxia due to hanging and the death appeared to have taken place\r\nwithin 8 to 10 days. He had further stated that there was neither fracture\r\nfound on the dead bodies of the deceased, nor any blood clots were found,\r\nnor any injuries were found, and therefore he had opined that the cause of\r\ndeath was hanging which normally is found in case of suicide. He\r\nspecifically stated that as the dead bodies were decomposed, he could not\r\nexpress any opinion whether it was a homicidal death. In the crossexamination by the learned counsel for the accused, he had categorically\r\nadmitted that he did not find any symptom of homicidal death, nor he had\r\nopined in his report given on 12.12.1994 that the deaths of the deceased\r\nwere homicidal. Of course, he had stated that on the basis of the report\r\nsubmitted on 30.04.1995, an inference could be drawn that the deaths\r\ncould be homicidal deaths.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. This takes the court to examine the incriminating evidence relied upon by\r\nthe prosecution, that is the extra judicial confession made by the coaccused Videshi. According to the prosecution, the accused Videshi had\r\nmade self-inculpatory confession before the PW-4 Bhola Singh and also\r\nmade confession before the PW-5 Chandrashekhar, PW-6 Baran Singh\r\nand PW-7 Dukaluram, involving the other accused including the present\r\nappellant. The prosecution had also produced an affidavit of Videshi (ExP/11) allegedly affirmed before the Notary. Though the Sessions Court\r\nrelying upon the said evidence of extra judicial confession of Videshi <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">convicted all the four accused, the High Court partly believing the said\r\nextra judicial confession, acquitted the three accused i.e., Bhagirathi,\r\nMangal Singh and Videshi from the charges levelled against them under\r\nSection 302 read with 34 of IPC, however convicted them for the offence\r\nunder Section 201 read with 34 by holding that the said accused had tried\r\nto cause disappearance of the evidence.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. At this juncture, it may be noted that as per Section 30 of the Evidence\r\nAct, when more persons than one are being tried jointly for the same\r\noffence, and a confession made by one of such persons affecting himself\r\nand some other of such persons is proved, the court may take into\r\nconsideration such confession as against such other person as well as\r\nagainst the person who makes such confession. However, this court has\r\nconsistently held that an extra judicial confession is a weak kind of\r\nevidence and unless it inspires confidence or is fully corroborated by\r\nsome other evidence of clinching nature, ordinarily conviction for the\r\noffence of murder should not be made only on the evidence of extra\r\njudicial confession. As held in case of State of M.P. Through CBI & Ors.\r\nVs. Paltan Mallah & Ors. , the extra judicial confession made by the coaccused could be admitted in evidence only as a corroborative piece of\r\nevidence. In absence of any substantive evidence against the accused, the\r\nextra judicial confession allegedly made by the co-accused loses its </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">significance and there cannot be any conviction based on such extra\r\njudicial confession of the co-accused.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. This takes the court to examine the theory of “Last seen together”\r\npropounded by the prosecution. As per the case of prosecution, PW-1\r\nDhansingh had seen the accused Chandrapal calling the deceased <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Kanhaiya and taking him inside his house on the fateful night. Apart from\r\nthe fact that the said Dhansingh had not stated about the time or date when\r\nhe had lastly seen Kanhaiya with Chandrapal, even assuming that he had\r\nseen Chandrapal calling Kanhaiya at his house when he was sitting at the\r\npremises of village panchayat, the said even had taken place ten days prior\r\nto the day when the dead bodies of the deceased were found. The time gap\r\nbetween the two incidents i.e., the day when Dhansingh saw Chandrapal\r\ncalling Kanhaiya at his house and the day Kanhaiya’s dead body was\r\nfound being quite big, it is difficult to connect the present appellant with\r\nthe alleged crime, more particularly when there is no other clinching and\r\ncogent evidence produced by the prosecution.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>14. In this regard it would be also relevant to regurgitate the law laid down by\r\nthis court with regard to the theory of “Last seen together”.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. As stated hereinabove, in order to convict an accused under Section 302\r\nIPC the first and foremost aspect to be proved by prosecution is the\r\nfactum of homicidal death. If the evidence of prosecution falls short of\r\nproof of homicidal death of the deceased, and if the possibility of suicidal\r\ndeath could not be ruled out, in the opinion of this court, the appellantaccused could not have been convicted merely on the basis of the theory\r\nof “Last seen together”.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. Ergo, having regard to the totality of evidence on record, the court is of\r\nthe opinion that the High Court had committed gross error in convicting\r\nthe appellant-accused for the alleged charge of 302 read with 34 of IPC,\r\nrelying upon a very weak kind of evidence of extra judicial confession\r\nallegedly made by the co-accused Videshi, and relying upon the theory of\r\n“Last seen together” propounded by the PW-1 Dhansingh. It is also <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">significant to note that no evidence worth the name as to how and by\r\nwhom the deceased Brinda was allegedly murdered was produced by the\r\nprosecution. Under the circumstances, it is required to be held that the\r\nprosecution had miserably failed to bring home the charges levelled\r\nagainst the appellant-accused beyond reasonable doubt. The suspicion\r\nhowsoever strong cannot take place of proof.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>20. For the reasons stated above, the appeal deserves to be allowed and is\r\naccordingly allowed. The appellant-accused Chandrapal is acquitted from\r\nthe charges levelled against him. He is directed to be set free forthwith.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '32cd04725da2f0808ce695aa9d4ab6dd.jpeg', '09f9a7dca31047ccbef53afd586f6fcc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-28', 1, '', '', '2022-05-27 21:37:48', '2022-05-28 17:30:10'),
(1737, 'T0uvsRSBNE84o68nioL2nwqTG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Casual workers doing continuing work are entitled for benefit of the Employees State Insurance Act, 1948. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Royal Western India Turf Club Ltd Vs E.S.I Corporation and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 49 of 2006 decided on 29 February 2016.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V. Gopala Gowda and Justice Arun Mishra.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The questions involved for decision in these appeals are whether\r\ncasual workers are covered under definition of employee as defined in\r\nSection 2(9) of the Employees State Insurance Act, 1948 (hereinafter\r\nreferred to as ‘ESI Act’) and pertaining to period for which Turf Club is\r\nliable to pay from 1978-79 or from 1987.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n2. The main question involved in the present appeals whether the ESI\r\nAct is applicable to Royal Western India Turf Club Ltd. has been\r\nconcluded by a 3-Judge Bench decision of this Court vide judgment dated\r\n31.7.2014. It has been held that the Turf Club would fall within the\r\nmeaning of the word ‘shop’ as mentioned in the notification issued under\r\nthe ESI Act. Therefore, the provisions of ESI Act would extend to the\r\nappellant also. Thereafter the matters have been placed before a Division\r\nBench to consider other questions on merit.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. It was submitted on behalf of Royal Western India Turf Club Ltd.\r\nthat temporary staff engaged on race-days for issue of tickets, would not <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be covered by the definition of the “employee” under Section 2(9) of the\r\nEmployees State Insurance Act, 1948. It was also submitted that in view\r\nof the consent terms filed in Application No.16/1976 by the Turf Club\r\nbefore the ESI Court, Bombay, the casual labour engaged on race track\r\nwere not to be covered under the ESI Act. It was further submitted that in\r\nview of Rule 2A of the Employees’ State Insurance (Central) Rules,\r\n1950, contribution is required to be made for a period as may be\r\nprescribed in the Regulations and in view of Regulations 29 and 31 of the\r\nEmployees’ State Insurance (General) Regulations, 1950, it would be\r\ndifficult to calculate the contribution for the employees who work\r\ncasually on the racing days. It was also submitted that the direction issued\r\nby the High Court not to recover the amount before 1987 does not call for\r\nany interference in the appeal filed by ESI Corporation, for which\r\nreliance has been placed on a decision of this Court in Employees State\r\nInsurance Corporation v. Hyderabad Race Club (2004) 6 SCC 191.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Section 39 deals with the contribution payable under the Act with\r\nrespect to the employee in respect of each “wage period” shall ordinarily\r\nfall due on the last day of the wage period, and where an employee is\r\nemployed for “part” of the wage period or is employed under two or\r\nmore employers during the same wage period, the contributions shall fall\r\ndue on such days as may be specified in the Regulations. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">It is apparent from section 39 that an employee who is employed\r\nfor a part of the wage period is also covered for the purposes of\r\ncontribution. The definition of the term “employee” in section 2(9) is also\r\nwide enough to cover casual employees who are employed for part of\r\nwage period. It is also provided in section 39(5) that in case contribution\r\nis not paid, it shall carry 12% interest per annum or such higher rate as\r\nmay be specified in the Regulations till the date of actual payment and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the amount is recoverable as arrears of land revenue.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. Section 42 deals with the general provisions as to payment of\r\ncontributions. It is provided in section 42 that no employee’s contribution\r\nshall be payable by or on behalf of an employee whose average daily\r\nwages are below such wages as may be prescribed by the Central\r\nGovernment. Sub-section (2) of section 42 again provides that\r\ncontribution of the employer as well as the employee shall be payable by\r\nthe principal employer for the wage period in respect of the whole or part\r\nof which wages are payable to the employee and not otherwise. The\r\nprovision does not prescribe that employee has to work for a particular\r\nperiod for availing benefit of the said provision.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Similarly, reliance upon Regulations 26 to 31 of Regulations of\r\n1950 is also of no avail as the Regulations make it clear that for the wage\r\nperiod, contribution has to be made by the employer as provided in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Regulation 31 otherwise he is liable to make payment as provided in\r\nRegulation 31A and amount carry interest, which is recoverable as arrears\r\nof land revenue. It is also settled that interest cannot be waived.\r\nRegulation 36 also makes it clear that when an employee is employed by\r\nan employer for a part of the wage period, the contribution in respect of\r\nsuch wage period shall fall due on the last date of the employment in that\r\nwage period. The intendment of regulation is clear to cover work\r\nrendered in part of wage period.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11. This Court in Regional Director, Employees’ State Insurance\r\nCorporation, Madras v. South India Flour Mills (P) Ltd. [AIR 1986 SC\r\n1686] has overruled the decision of the Madras High Court in Employees’\r\nState Insurance Corporation v. Gnanambikai Mills Ltd. (1974) 2 Lab.\r\nLaw Journal 530 (Mad.) in which the High Court laid down that though\r\ncasual employee may come within the definition of the term “employee”\r\nunder section 2(9) of the Act, yet they may not be entitled to sickness\r\nbenefits in case their employment is less than the benefit period or\r\ncontribution period and that it does not appear from the Act that casual\r\nemployee should be brought within its purview.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Coming to the submission that the ESI Corporation should be held\r\nbound by the consent terms, the submission is factually incorrect,\r\nmisconceived, legally untenable and otherwise also devoid of the\r\nsubstance. In Application (ESI) No.16/1976 filed by the Turf Club, the\r\nESI Corporation agreed on the basis of Inspection Report dated\r\n29.11.1975 and in Memorandum dated 14.4.1976 it was mentioned that\r\nemployees of the Turf Club in the electrical and mechanical workshop,\r\nfactory division, general department - motor-garage (factory division),\r\nsecurity department, carpentry shop, personnel department and accounts\r\ndepartment would be covered under the ESI Act with effect from\r\n28.1.1968. It was agreed that such employees of the Turf Club have <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">already been covered and shall continue to be covered as before and the\r\nemployees of Racing Administration Department, casual labour engaged\r\non race track, temporary staff engaged on race days for issue of\r\ntickets/dividends were not covered. In the aforesaid case the period\r\ninvolved was as specified in the notification dated 26.2.1976 which was\r\nprior and not related to the period in question 1978-79 to 1982-83\r\ninvolved in C.A. No.49/2006 and in other appeals also the period is\r\nsubsequent thereto. After issuance of the notification dated 18.9.1978 by\r\nthe Government of Maharashtra, the remaining departments of Turf Club\r\nwhich were left out earlier were specifically covered under the purview\r\nof the ESI Act. Thus, the demand in the instant case is based upon the\r\nnotification dated 18.9.1978 which left no room to entertain any doubt\r\nthat the establishments of the aforesaid department in question were also\r\ncovered under the ESI Act. Thus, no benefit can be derived by the\r\nconsent terms which related to the earlier period when notification dated\r\n18.9.1978 had not been issued. Notification has statutory force and\r\nagreement cannot supersede it. It is also clear that several departments of\r\nrace club were covered under the notification issued in 1968. Thus, the\r\nsubmission raised on the basis of consent terms is hereby rejected.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. Coming to the appeal preferred by the ESI Corporation raising\r\nquestion that the payment should have been ordered with effect from <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1978-79 onwards instead of 1987 as in view of notification dated\r\n18.9.1978, there was no room to doubt that departments in question of the\r\nTurf Club were also covered under ESI Act. In our opinion, the\r\nnotification of 1978 is clear and has to be given full effect, for earlier\r\nperiod also the consent terms indicated that various other departments of\r\nTurf Club were covered under the notification of 1968. Reliance on the\r\ndecision of this Court in Hyderabad Race Club case (supra) so as to\r\nwaive the contribution from 1975 to 1986, is not available as in the\r\ninstant case there was no doubt as to applicability of ESI Act in view of\r\nthe specific notification issued in 1978. The provisions of ESI Act were\r\napplied to various departments of Turf Club w.e.f. 1968. The decision in\r\nHyderabad Race Club case (supra) turned on its own different factual\r\nmatrix. In this case, it was clear from 1968 itself that Turf Club was\r\ncovered under ESI Act as is apparent from consent terms. The\r\nnotification dated 18.9.1978 included other left out departments of race\r\nclub. The provisions of ESI Act were complied with by Turf Club w.e.f.\r\n1968. The High Court on the facts of the case has erred in quashing the\r\ndemand for the contribution with effect from 1978 till 1987.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. In our opinion, the Turf Club is liable to make the contribution as\r\nper notification dated 18.9.1978 along with interest at such rate as\r\nprovided in the Act and the Rules till the date of actual payment. Let the\r\namount be contributed within a period of three months from today. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Consequently, the appeals preferred by ESI Corporation are allowed and\r\nthe ones preferred by Turf Club are dismissed with costs of Rs.2 lakhs\r\npayable to the ESI Corporation.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4446ded79e70b3dba54ba3513705e38b.jpeg', '0c6b09ac16c7b133a0142302187be2d4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-28', 1, '', '', '2022-05-27 21:58:46', '2022-05-28 12:48:16');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1740, 'JwXgGQq7rSwz3EEAQClRCsKxJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Taking cognizance by the criminal Court cannot be set aside on the ground of defective or illegal investigation, unless illegality in investigation can be shown to have brought about miscarriage of justice. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vakati Narayana Reddy Vs Central Bureau of Investigation BS and FC Bengaluru.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 2185 of 2021 decided on 19 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Natarajan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Both these petitions are filed by petitioner-accused No.2 under Section 482 of Cr.P.C. for quashing First Information Report filed by the respondent bearing No.RC 7(E)/2017 dated 05.05.2017 for the offence punishable under Section 120B read with Section 420 IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 (hereinafter referred to as \'PC Act\') and also the charge sheet in Spl. C.C. No.231/2018 pending on the file of XXI Additional City Civil and  Sessions Judge and Special Judge for CBI cases, Bengaluru.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The case of the prosecution is that one Smt. Pooja Tiku, the Deputy General Manager of the Industrial Finance Corporation Limited (IFCI) lodged a written complaint dated 03.05.2017 against the petitioner and others to the CBI at Bengaluru alleging that the company VNR Infrastructures Ltd. (Accused No.1) and the petitioner-accused No.2 being the Managing Director along with accused Nos.3 to 9 said to have committed fraud on the complainant IFCI Ltd. to the tune of Rs.205.02 crores as on 15.03.2016 by way of misappropriation, cheating and criminal misconduct. It is further alleged that accused Nos.1 and 2 had availed corporate loan from the complainant bank IFCI to the tune of Rs.190 crores in two cheques, that is, Rs.90 crores on 15.09.2014 and Rs.100 crores on 05.05.2015. The said loan amounts were secured by immovable properties. It is further alleged that the first loan of Rs.90 crores was secured by mortgaging 29 acres 23 guntas of Non-agricultural land situated at Panjeerala Village of Mahbubnagar District of Telangana State, 5 acres 27 guntas of Non-agricultural land situated at Nandigama Village of Mahbubnagar District of Telangana State, 20 acres 10 guntas of Non-agricultural land situated at Raikal Village of Mahbubnagar District of Telangana State, 20 acres 18 guntas Non-agricultural land situated at Immulnarva Village of Mahbubnagar District of Telangana State along with personal guarantee of Accused No.2 and Corporate Gurantee of the Mortgagers. It is also alleged that the said complainant IFCI Ltd. appointed Accused Nos.4 and 5 as valuators in order to evaluate the mortgaged properties. The valuation was effected by the Accused No.4 along with K. Chandrasekhkar (official of the company) on 11.09.2014, and as per the valuation report, the fair value of the mortgaged properties situated at Mahbubnagar was estimated to be Rs.257.59 crores as against Distress Sale Value at Rs.231.54 crores. The 2nd valuation regarding the mortgaged properties situated at Mahbubnagar was effected by the Accused No.5 along with K. Chandrasekhar (official of the company) on 12.09.2014 and estimated the fair market value at Rs.282.80 crores as against distress sale value at Rs.226.24 crores.  Based on the two valuation reports of Accused No.4 and Accused No.5, the corporate loan for an amount of Rs.90 Crores was executed between the Company (Accused No.1) and the Complainant IFCI Ltd. on 15.09.2014. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">4. It is further alleged by the complainant that in the month of April 2015, accused Nos.2 and 3 acting on behalf of the company approached the Complainant for another Rs.100 crore corporate loan to meet and fulfill the company and IPO objectives. The Complainant agreed in principle for the said loan considering the accused furnishing securities and personal and corporate guarantees for the said loan amount. In view of the same, the properties measuring 24 acres 21 guntas of Non- Agricultural Land situated at Rajabollaram </font></span><font face=\"Calibri, sans-serif\">village of Medachalmangal, Rangareddy District, Telangana State were mortgaged as security<span style=\"white-space: pre;\">	</span>for the Second<span style=\"white-space: pre;\">	</span>Loan of Rs.100 Crores along with the personal Guarantee of the Accused No.2 and Corporate Guarantee. The complainant company entrusted  accused Nos.4 and 5 for valuation  of the mortgaged properties measuring 24 acres 21 guntas at Rajabollaram Village. The first valuation was carried out on 02.05.2015 by the Accused No.4 and the fair value of the mortgaged property was estimated to be Rs.320.94 crores as against distress sale value of Rs.256.39 crores. The second valuation was carried out by the Accused No.5 on 07.05.2015 and as per the valuation report the fair market value of the mortgaged property was estimated to be Rs.325.83 crores as against the distress sale value of Rs.260.66 crores. Based on both the valuations, the Second Corporate Loan amount of Rs.100 Crores was sanctioned by the complainant Bank in favour of the Accused on 15.05.2015 and the deed of personal guarantee was executed on the same date. The said first and second loans were supposed to be repaid on quarterly installment basis. </font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. It is also alleged that, subsequently on 15.09.2015, the accused No.2 started defaulting on repayment of the loan amount. On 15.03.2016, the loan account of Accused No.1 was classified as Non-Performing Asset as the total loan amount including interest stood at Rs.205 crores (Rs.205,02,734,44.02/-). In furtherance to that, on 01.04.2016, proceedings were initiated under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short SARFAESI Act) for the recovery of the said loan amount by issuing notice under Section 13(2) of the said Act. The services of the BKC Advisors Pvt. Ltd. Consultants and Valuators were engaged for carrying out the valuation of the mortgaged properties in order to take recourse under the provisions of Section 13(4) of the SARFAESI Act, 2002. As per the valuation report dated 27.06.2016 submitted by BKC Advisors Pvt. Ltd. Consultants and Valuators, the distress sale value of all the properties situated at Mahbubnagar was estimated to be Rs.23.84 crores and the distress sale value of the properties situated at Rangareddy District was estimated to be Rs.6.04 crores.  In view of the massive discrepancies regarding valuation of the mortgaged properties carried out by the valuators (Accused No.4 and Accused No.5), it was found that accused Nos.1 to 3 had inflated the fair value and distress value of the mortgaged properties. Therefore, the complaint came to be filed against the accused persons. After investigation, CBI also filed challan and the trial Court took cognizance against the accused persons, which is under challenge.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. The learned Senior counsel contended that the proceeding is also pending before the National Company Law Tribunal. It is an admitted fact that the company is presently under liquidation and the respondent has suppressed the fact that there is a specific order passed by the NCLT, Hyderabad against the company in No.12/10/HBD/2017 in the matter of VNR Infrastructures Ltd. i.e. Annexure-D whereby the NCLT declared a moratorium by prohibiting the institution of suits or continuation of pending suit or proceedings against the Corporate Debtor (VNR Infrastructures), including the execution of any judgment, decree or order in any court of law, Tribunal Arbitration Panel or other Authority. When once there is a moratorium passed, then in terms of Section 14(1)(a) of the Insolvency and Bankruptcy code, the institution of suits or \"proceedings\" against the company is prohibited. Therefore, the CBI has no authority or jurisdiction to have registered the FIR and investigate and file the impugned charge sheet. The trial Court has strangely ignored these aspects and has taken cognizance and the same is liable to be quashed.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19. From the above said information, it clearly reveals that though the IFCI was created by the statute, but subsequently, named as \"Limited Company\" which is nothing but a Public Limited Company as per the definition of the Companies Act and the same was registered under the Companies Registration Act. The copy of the registration certificate is also produced herein. Though the learned counsel for the petitioner has contended that the company was not shown as registered under the Company Registrars of Companies website, but the said contention cannot be acceptable because once the financial institution has been established under the IFCI Act, 1948, subsequently, the said Act was repealed on 2.4.1993 by a repeal Industrial Finance Corporation (Transfer of Undertaking and Repeal) Act, 1993 and subsequently, the same was formed as public undertaking company. The learned counsel for respondent has also produced the Company Master Data (Annexure-R4) which reveals the date of incorporation of the company as 21.05.1993 and the category of the company is mentioned as company limited by shares and sub-category is mentioned as Union Government company and the class of company is mentioned as public. Learned Special counsel for the respondent has also brought to the notice of this Court that under Section 4(1)(a) of the Companies Act, 2013<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20. That means, the company of the complainant named as IFCI Ltd. will automatically come under the public limited company in view of Section 4(1)(a) of the Companies Act, 2013. Accused No.3 directly falls under  the category of public servant and performing the duty as public duty and it is considered as public duty in view of Section 2(c)(iii) and (viii) of the P.C. Act. The P.C. Act also defines \"public duty\" in Section 2(b) where, public duty means a duty in the discharge of which the State, the public or the community at large has an interest. The explanation to Section 2(b) also says the State includes a corporation established by or under a Central, Provincial or State Act or an authority or a body owned or controlled or aided by the Government or a government company as defined in Section 617 of the Companies Act, 1956. Therefore, the State Financial company is nothing but a public limited company and discharging the duty of the State and the community at large has an interest, thereby the said IFCI company is a Public Financial Limited Institution. Therefore, the contention raised by the petitioner\'s counsel cannot be acceptable that the IFCI is not the Public Limited Company.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>21. That apart, as per the reference available in the complaint, the IFCI of India established in the 1948 Act and subsequently in the year 1993 under the repealed Act, the same was formed as the company and registered under the Companies Act, but the name of the corporation has not been changed and continued as IFCI Limited.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23. The learned senior counsel for the petitioner himself has produced certificate of incorporation which is registered on 21.05.1993 and subsequently, a fresh certificate of incorporation consequent upon change of name was also issued on 27.10.1999. Though the learned Senior counsel has contended that the name of the complainant corporation is not mentioned in the certificate of incorporation, but in view of Section 13 of Companies Act, 2013 once the name of company is not changed, then there is no necessity for obtaining any fresh certificate arises. Therefore, on this ground, the criminal proceeding cannot be quashed against the petitioner. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>24. That apart, as per the circular issued by the bankers in respect of prevention, classification and reporting frauds, if any fraud committed on the bank as per the guidelines of Reserve Bank of India, a complaint shall be filed before the police, if the amount of fraud is up to Rs.1.00 lakh and if the fraud is more than Rs.1.00 lakh to Rs.3.00 lakhs, the complaint shall be filed before the CID/Economic offences wing of the State concerned. If fraud is above Rs.3.00 crores, the complaint shall be filed before the CBI Anti Corruption Branch. Here in this case, accused Nos.1 and 2, approached accused NO.3, who is Deputy General Manager for borrowing loan and accused NOs.1 to 3 in collusion with accused No.4 and 5 escalated the property value more than 10-20 times and facilitated accused Nos.1 and 2 for sanctioning of loan of Rs.190.00 crores which was sanctioned by accused No.3 and four months after the sanction of Rs.100/- crores, accused No.1 company defaulted in re-payment of loan and on verifying the value of the property with the second evaluators, it had come to the knowledge of the complainant that the property value was only Rs.20 to 30 crores, but not Rs.250/- crores as stated by accused NOs.4 and 5 valuators. Though the learned Senior counsel has contended that the second evaluators were appointed, but the CBI has not sent the property to the third evaluators to verify the actual value of the properties, but the properties are already attached by the banker under the DRT proceedings and recovery proceedings are still pending. Accused No.1 company is already under liquidation and the liquidators are also appointed by the High Court of Telangana State. The accused has also not produced fresh valuation report to show the properties were fetching more than Rs.300/- crores as stated by accused Nos.4 and 5. of course, accused NO.4 and 5 were the evaluators appointed by State Finance Corporation, but it cannot be ruled out that the accused NOs.1 to 3 have not colluded with accused NO.4 and 5 for escalating the value of the property and borrowing huge crores of money and defrauded the public financial institutions and caused loss to the public financial institutions. Therefore,  without going to the trial, this Court cannot go into appreciating and re-appreciating the documents while exercising power under Section 482 of Cr.P.C. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>26. It is well settled by the Hon\'ble Supreme Court in various cases and in case of Fertico Marketing and investment private Limited case (supra), the Hon\'ble Supreme Court has held that in any defective or illegal investigation, taking cognizance by the trial Court cannot be set aside unless illegality in investigation can be shown to have brought about miscarriage of justice. Illegality  may have bearing on question of prejudice or miscarriage of justice, but invalidity of investigation has no relation to competence of court. In the case of Central Bureau of Investigation, Bank Securities and Fraud Cell Vs. Ramesh Gelli and others - (2016)3 SCC 788, the Hon\'ble Supreme Court has categorically explained the definition of public servant and public duty and held that the manager of the bank comes under the definition of \'public servants\' for the purpose of PC Act and the same view was taken by the Hon\'ble Supreme Court in the case of State of Maharashtra and Others Vs. Brijlal Sadasukh Modani - (2016)4 SCC 417. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Though the learned Senior counsel appearing for the petitioner has contended that borrowing loan and non repaytment amounts toi a civil dispute but not attract the criminal prosecution and he has relied upon the unreported judgment of the Hon\'ble Supreme Court in Jayahari and another case (supra), but the facts and circumstances of the case is altogether different where accused No.1 and 2 borrowed loan by manipulating the documents with a the help of accused Nos.4 and 5 and they committed fraud on the Central Financial Institution to the tune of more than Rs.200.00 crores.  Accused NO.s4 an 5 have given a  wrong valuation report even though the value of the property was fetching only Rs.25.00 crores, but accused Nos.4 and 5 gave the property value more than Rs.250.00s to Rs.350.00 crores. Thereby, accused NOs.1 and 2 got sanctioned Rs.190.00 crores from the complainant company. Therefore, the contention of the learned Senior counsel for the petitioner is not acceptable. on the fraud has been committed on the public sector financial institution and caused huge loss by the accused Nos.1 and 2 to the public financial institution which affects the interest of the public at large. Merely, the recovery proceeding is pending, that itself cannot be a ground to quash the criminal proceedings against the petitioner. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>27. Therefore, by looking to the entire material on record, there is no case made out by the petitioner to quash the criminal proceedings pending against him before the trial Court. The petitioner requires to face the trial and take all the contentions as defence, if so available.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Therefore, at this stage, this Court cannot exercise the power under Section 482 of Cr.P.C. for quashing the criminal proceedings. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Accordingly, both the criminal petitions filed by the accused No.2 are hereby dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '707554cfd9cc2cece45869081ab70cef.jpeg', 'abcf2ae7c70e58993feea0c427726a68.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-30', 1, '', '', '2022-05-28 18:20:20', '2022-05-30 06:34:47'),
(1739, 'J3p0whIuu3WVheIOqu5yQxJJ0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘’Right to nutritious food is a fundamental right of pregnant woman, lactating mothers and children’’. Karnataka High Court directs the State Govt to implement ICDS without further delay and to submit compliance report ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sangeeta Gadagin Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 3522 of 2022 decided on 27 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice Ritu Raj Awasthi and Justice S.R. Krishna Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>All these petitions relate to implementation of the Integrated Child Development Services Scheme (for  short `ICDS  scheme\')  in  the  State  of  Karnataka, [which  was introduced on 02.10.1975 by the Government of India. In W.P.(Civil) 196/2001, the Apex Court has issued detailed guidelines regarding implementation of the ICDS scheme; amongst other things, the Central and State Government were directed not to use contractors and preferably implement the scheme making use of village communities, self help groups and Mahila Mandals. Pursuant to the directions and guidelines issued by the Apex Court, Mahila Supplementary Production Training Centres (for  short `MSPTC\')  were  established  by  the  State  Government  for implementation of the scheme.]</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The ICDS Scheme was introduced by the Government of India in the year 1975 and is administered through State Governments. As per the information available on the web- portal of the State of Karnataka as well as stated in the Public Interest Litigation, there are more than 50 lakh beneficiaries of the ICDS Scheme in Karnataka. These beneficiaries comprising of children aged about 0 - 6 years, pregnant women and lactating mothers depend on the ICDS Scheme to receive 50% of their recommended dietary allowance per day.  In simple terms, `recommended dietary allowance\' is the level of nutrition that a  healthy  person shall consume to live a healthy life.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>On 07.10.2004, the Supreme Court of India in Writ Petition (Civil) No.196/2001 had directed the State Governments not to use contractors for supply of nutrition in Anganwadis. The Apex Court directed that “preferably ICDS funds shall be spent by making use of village communities, self-help groups and Mahila Mandals for buying of grains and preparation of meals.” In view of the aforesaid directions, the State of Karnataka established 137 Mahila Supplementary Nutrition Production Training Centers (MSPTCs) for implementation of the ICDS Scheme. Each MSPTC consists of 22-32 women members from the most vulnerable sections of the society. The MSPTCs manufacture and supply food to the Anganwadi Centres (AWCs). The AWCs inturn supply the food to the beneficiaries under the ICDS Scheme.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> The Government of India has issued guidelines on 24.02.2009 for implementation of the ICDS Scheme (Revised Nutritional and Feeding Norms). Paragraph 7 of the Revised Nutritional and Feeding Norms require the supplementary food supplied under the ICDS Scheme to be fortified with essential nutrients so as to meet 50% of the Recommmendatory Dietary Allowance (RDA) per beneficiary per day. The said norms/guidelines were again revised on 06.10.2017. Thereafter, vide Government order dated 24.02.2018, the State Government directed the MSPTCs to procure grams and pulses from the Karnataka State Food and Civil Supplies Corporation Limited and vegetables from the Karnataka State Co-operative Consumer Federation Limited (Janata Bazar); the said order was stayed by this Court in W.P.No.16153/2019 on 26.04.2019, which was filed by Karnataka Rajya MSPTCgala Okkuta, Bangalore. On 24.12.2019, the Central Government directed the State Government to take necessary remedial action immediately to improve the quality of supplementary nutrition served in Anganwadi Centres (AWCs).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>On 02.07.2020, the State Government issued a Circular regarding supply of good quality of food items to the beneficiaries of the AWCs under the ICDS scheme. In the said circular, the State Government referred to the orders of the Apex Court referred to supra in relation to the ICDS scheme as well as the Central Government guidelines referred to supra and various steps taken in this regard. After referring to all relevant facts and details, it was directed to obtain technical assistance by the MSPTCs for preparation of fortified SNP food to be given to the beneficiaries, agreements are to be entered with the women groups possessing BIS licences. It was further directed that the MSPTCs are to obtain the assistance of women groups with BIS licence for a period of three years and function independently. The said circular also prescribed the terms and conditions for entering into agreements by the MSPTCs with the women groups having BIS licences. It was clarified that the said circular was issued as per the Apex Court directions and the Supplementary Nutrition Rules, 2017 and that the same would be subject to final orders in the pending writ petitions wherein the aforesaid order dated 24.02.2018 had been challenged by the respective petitioners.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. As rightly contended by the learned Senior counsel appearing in W.P.No.11004/2020 and W.P.No.15767/2021, the impugned orders dated 15.05.2021 and 20.05.2021, whereby the circular dated 02.07.2020 and Government order dated 05.05.2021 respectively are sought to be withdrawn are illegal, arbitrary and vitiated and the same deserve to be quashed for the following reasons:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>The material on record discloses that as per the ICDS scheme as well as the Central Government Norms dated 24.02.2009 and 2017 Rules and directions issued by the Apex Court pertaining to implementation of the scheme, the State government issued an order dated 24.02.2018 which was stayed by this Court. A perusal of the circular dated 02.07.2020 and Government order dated 05.05.2021 as well as the technical committee report dated 19.08.2021, the feasibility for the MSPTCs to tie up with BIS licenced / certified women self help groups such as the petitioners has been recognised, acknowledged and recommended by the State Government bearing in mind the objectives of the scheme, Apex Court directions and the relevant norms / rules. It is therefore clear that the impugned orders dated 15.05.2021 and 20.05.2021 purporting to withdraw the circular dated 02.07.2020 and Government order dated 05.05.2021 are illegal, arbitrary and deserve to be quashed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>A perusal of the impugned orders dated 15.05.2021 and 20.05.2021 clearly indicates that the same are completely unreasoned, non-speaking, cryptic, laconic and arbitrary orders which have been passed unconditionally and unilaterally without assigning any reasons and without any application of mind, thereby being violative and contrary to the principles of natural justice and on this ground also, the impugned orders deserve to be quashed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space:pre\">	</span>A perusal of the circular dated 02.07.2020 and Government order dated 05.05.2021 indicates that the same were issued in conformity and pursuant to the National Food Security Act r/w SNP Rules, 2017 as well as the directions issued by the Apex Court regarding implementation of the ICDS scheme which is meant for pregnant women, children, lactating mothers etc., and consequently, withdrawal of the said circular and Government order by passing the impugned orders will substantially delay the implementation of the ICDS scheme in the State of Karnataka and as such, the impugned order deserve to be quashed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv)<span style=\"white-space: pre;\">	</span>It is also relevant to state that taking into account larger public interest involved in speedy implementation of the ICDS scheme, of which, pregnant women, children, lactating mothers etc., are the beneficiaries, it was absolutely essential that the circular dated 02.07.2020 and order dated 05.05.2021 are implemented and given effect to at the earliest without any delay and under these circumstances, issuance of the impugned orders seeking to withdraw the said circular and order will cause great prejudice and hardship to the beneficiaries of the ICDS scheme and consequently, the impugned orders deserve to be quashed on this ground also.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(v)<span style=\"white-space: pre;\">	</span>Insofar as the defence of the State Government that the impugned orders were passed since the circular dated 02.07.2020 and the Government order dated 05.05.2021 were contrary to the directions issued by the Apex Court and failure on the part of the women self help groups to comply with the requirements of the said circular and order is concerned, it is significant to note that the said circular dated 02.07.2020 and Government order dated 05.05.2021 indicate that all relevant and material facts including the directions of the Apex Court, the objectives sought to be achieved by the ICDS scheme, earlier government orders, notifications, rules, norms etc., have been considered and taken into account while issuing the said circular and order and consequently, the said contention of the respondents – State is devoid of merit and is liable to be rejected.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(vi)<span style=\"white-space: pre;\">	</span>Insofar as the contention of the respondents – State that the women self help groups have not complied with the terms and conditions of the circular dated 02.07.2020 and Government order dated 05.05.2021 is concerned, the material on record discloses that as directed by this Court, the petitioners have filed affidavits along with documents which indicate that all the terms and conditions prescribed in the said circular and order have been fulfilled and complied with by the petitioners and as such, the said contention urged by the respondents – State is also liable to be rejected.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(viii)<span style=\"white-space:pre\">	</span>Insofar as the contention advanced by the respondents – State that Section 21 of the General Clauses Act enables them to withdraw the circular dated 02.07.2020 and order dated 05.05.2021, having regard to the peculiar and special facts and circumstances of the instant case including the aims and objects of the ICDS scheme, directions issued by the Apex Court and other proceedings, orders etc., prior to issuance of the same, respondents were not entitled to unilaterally and unconditionally issue the impugned orders under Section 21, which does not confer unfettered or unbridled powers on the State Government to withdraw its earlier order dated 05.05.2021, that too within a period of fifteen days and as such, even this contention of the respondents is liable to be rejected. It is well settled that exercise of power under Section 21 of the General Clauses Act is circumscribed, limited and restricted by the attending and surrounding facts and circumstances including the instant circular / order sought to be withdrawn and in the facts of the case on hand, particularly having regard to the ICDS scheme which is beneficial in nature, effective and speedy implementation of the scheme was absolutely essential and consequently, the impugned orders are vitiated on this ground also.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ix)<span style=\"white-space:pre\">	</span>The material on record also reveals that the already miserable situation and condition of the beneficiaries of the ICDS scheme had substantially and considerably deteriorated and worsened on account of the Covid-19 pandemic and on this charge also, the respondents were not justified in passing the impugned orders, which deserve to be quashed on this ground also.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(xi)<span style=\"white-space:pre\">	</span>As stated supra, W.P.No.3522/2022 is a PIL which was preferred on 14.02.2022 seeking several directions for implementation of the ICDS Scheme. In this context, as rightly contended by the learned counsel for the petitioner, the impugned orders dated 15.05.2021 and 20.05.2021 which proceed on the basis that some of the women self help groups do not meet the eligibility criteria or the conditions in the circular dated 02.07.2020 or order dated 05.05.2021 would not be a ground to repeal the entire frame work and consequently, the impugned orders would not only be disproportionate but also irrational and violative of Article 14 of the Constitution of India and the same deserves to be quashed on this ground also.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(xii)<span style=\"white-space:pre\">	</span>So also, learned counsel for the petitioner is right in his contention that the power of the State Government under Section 21 of the General Clauses Act is circumscribed, restricted and limited by the constitutional provisions, in particular, Articles 14 and 21 of the Constitution of India; in this context, it is significant to note that consequent upon issuance of the impugned orders dated 15.05.2021 and 20.05.2021, the circular dated 02.07.2020 and order dated 05.05.2021 are sought to be withdrawn, thereby denying more than 50 lakhs beneficiaries in Karnataka, the right to nutritious food, particularly to pregnant women, lactating mothers and children whose fundamental rights under Article 21 of the Constitution of India stands violated and on this score also, the impugned orders being arbitrary and capricious under Article 14 of the Constitution of India deserve to be quashed in view of the decisions of the Apex Court in the case of Shayara Bano vs. Union of India and Dipika Jagatram Sahani vs. Union of India & others.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>All the writ petitions are hereby allowed;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>The impugned Government orders dated 15.05.2021 and 20.05.2021 passed by the respondents – State are hereby quashed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space:pre\">	</span>The respondents – State are directed to forthwith implement and give effect to the circular dated 02.07.2020 and Government order dated 05.05.2021 issued and passed by the State Government immediately without any further delay.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv)<span style=\"white-space:pre\">	</span>The State Government is also directed to take necessary steps to forthwith implement and give effect to the Integrated Child Development Services Scheme (ICDS Scheme) immediately without any further delay, bearing in mind the Central Government Norms dated 24.02.2009 and Rules dated 06.10.2017 and in the light of the report of the technical committee dated 19.08.2021 as well as all other applicable Government Rules, Regulations, Norms, Orders, Circulars etc., in this regard.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (v)<span style=\"white-space: pre;\">	</span>It is directed that the supply of food products, without following specifications and standards as per Revised Nutrition and Feeding Norms shall be suspended with immediate effect and supply of quality nutrition as per Government order dated 05.05.2021 and circular dated 02.07.2020 shall be ensured by the respondents, by executing the agreements as specified in the Government order dated 05.05.2021.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(vi)<span style=\"white-space: pre;\">	</span>In order to ensure uninterrupted quality supply of the menu of food items, the respondents are directed that, if the parties of the contract (Agreements) as per Government order 05.05.2021 fail to perform their obligation, the final products as specified in the contract (Agreements) shall be procured at a competitive rate from any eligible entities as specified vide circular dated 02.07.2020 and supply the same to Anganawadi Centres in the interest of the beneficiaries.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(vii)<span style=\"white-space: pre;\">	</span>The State Government is directed to submit a compliance report to this Court within a period of three months from today.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(viii)<span style=\"white-space: pre;\">	</span>Liberty is reserved in favour of the petitioner in W.P.No.3522/2022 (PIL) to seek revival of the said petition, if the occasion so arises.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9beae72d0a8fe4e0ff0a10e77e9db2ff.JPG', '16ac49175f86dcbabbe5e059a5759947.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-28', 1, '', '', '2022-05-28 17:58:08', '2022-05-28 08:22:36');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1741, 'xPt8CsHRB7Xa9UIlDcsuF0VH8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'West Bengal Premises Tenancy Act, 1997 does not contemplate notice to be given to the tenant when the tenancy has been extinguished. Calcutta High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Prabir Kumar Jalan Vs Laxmi Narayan Jalan and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>G.A 2658 of 2011 decided on 6 February 2012.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice I.P. Mukerji.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This is a Chapter XIIIA application made by the plaintiff. He seeks a final\r\njudgment and decree in his suit for possession of the third floor of premises No.\r\n68/A/1B Nimtolla Ghat Street, Kolkata –700006 (hereinafter referred to as “the\r\nsaid premises”). He also claims an enquiry into mesne profits and a decree\r\ntherefor.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>On 26th December, 1967 she granted a lease of the said premises for 21 years to\r\nUma Shankar Jalan commencing on 26th December, 1967 at the rent reserved by\r\nthe deed of lease. Now, Clause 12 of this lease empowered the lessee to give two\r\nmonths’ notice to the lessor for vacating the said premises.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Whatever may have been the construction of the lease made by Tara Devi Jalan,\r\na suit was instituted by her in this Court being Suit No. 177 of 1989 for eviction\r\nof the lessee Uma Shankar Jalan on the ground that the lease had expired by\r\nefflux of time. In that suit a Chapter XIIIA application was taken out by the\r\nplaintiff. This Court by a decree dated 6th July, 1989, in that application, ordered\r\nthe eviction of Uma Shankar Jalan. Uma Shankar preferred an appeal from this\r\njudgment and decree before the Division Bench of this Court, which by its\r\njudgment and order dated 10th November, 1994 set aside the decree based on the\r\nChapter XIIIA application. On 7th December, 1994 Uma Shankar filed his written\r\nstatement in the suit. On 25th December, 1999 Uma Shankar died. The present\r\ndefendants are the heirs of Uma Shankar, the first and second defendants being\r\nhis sons and the third and fourth defendants being his daughters. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Before proceeding further with the narration of events it is to be noted that the\r\ndefence which Uma Shankar Jalan had taken in the suit was that, since by\r\nClause 12 of the lease, the lessee had the option to determine the lease earlier, he\r\nwas protected by the West Bengal Premises Tenancy Act, 1956.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>On the basis of Clause 12 of the said lease the plaintiff accepts the contention of\r\nthe predecessor-in-interest of the present defendants that the initial letting out\r\nwas protected by the Rent Act of 1956. </b></span><b style=\"font-size: 12pt;\"><span style=\"font-size: 12pt;\">According to this sub-section upon the death of the tenant, inter alia, his sons\r\nand daughters who were ordinarily living with him up to the date of his death as\r\nthe members of his family and were dependant on him and who did not own or\r\noccupy any residential premises would also be considered to be tenants for a\r\nperiod of five years from the date of death or from the date of coming into force of\r\nthis Act whichever was later. Therefore, upon the death of the original tenant\r\nUma Shankar Jalan on 25th December, 1999, the tenancy came to an end on the\r\nexpiry of five years from the date of coming into force of the new Act. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Hence, the defendants, assuming them to be the heirs of Uma Shankar Jalan\r\nand dependent on him and having no other place of residence have lost their\r\nright to reside in the said premises. So, they should be evicted.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Uma Shankar Jalan died on 25th December, 1999 before coming into force of the\r\nnew Act on 10th July, 2001. Since Uma Shankar was a monthly tenant and died\r\nduring the operation of the old Act, valuable rights had accrued to the present\r\ndefendants, such right being the right to succeed to the tenancy of Uma Shankar\r\nJalan. Such right was protected by Section 8 of the Bengal General Clauses Act\r\n1897.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The issues between the parties in the suit of 1989, assuming the same to be\r\npending in the records of this Court, is: whether the original defendant, Uma\r\nShankar was a tenant under the West Bengal Premises Tenancy Act, 1956 or was\r\nthe lease under the Transfer of Property Act, 1882?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Let us for the sake of argument assume that the suit as of today stands decreed\r\nin favour of the defendants herein being the successors-in-interest of the original\r\ndefendant. The decree which could be passed in their favour, at the highest\r\nwould be that they were monthly tenants of the said premises from 26th\r\nDecember, 1967.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Now, the question is whether the present suit is on the same cause of action? Let\r\nus continue to assume that the defendants were monthly tenants under the West\r\nBengal Premises Tenancy Act, 1956. The original tenant Uma Shankar died on\r\n25th December, 1999. The defendants are his sons and daughters, in occupation\r\nof the said premises after the demise of their father.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Now, comes the new Act with effect from 10th July, 2001. The new Act protects\r\nan heir of a deceased tenant for a period of five years from the date of death of\r\nthe tenant or five years from the date of coming into force of the Act whichever is\r\nlater. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Now, if Ms. Doshi’s argument that the rights of the original tenant vested in the\r\ndefendants on his death on 25th December, 1999 was true, then there would be\r\nno occasion for the legislature to enact that the status of a tenant would cease on\r\nexpiry of five years from the date of the Act or five years after the death whichever\r\nwas later. If the legislature had intended to protect the heirs of a tenant under\r\nthe 1956 Rent Act, the tenant having died before coming into force of the new\r\nRent Act, the legislature would have only prescribed five years from the date of\r\ndeath which must occur on or after coming into force of the new Act. Or better\r\nstill it could have said five years from the death and no more. The legislature\r\nneed not have said any more. Then the provisions of Section 8 of the Bengal\r\nGeneral Clauses Act, 1897 would come into play to interpret date of death as\r\ndeath after the new Act came into force to save and protect the rights of the heirs\r\nof a tenant who died during the operation of the old Act. The legislature has said\r\nfive years from the date of death of a tenant or from the date of coming into force\r\nof this Act whichever is later. If the legislature had intended death after the new\r\nAct came into force the five year period would always end on and after five years\r\nfrom the date of coming into force of the Act. Therefore, there was no need to\r\nprovide the phrase “five years……………..from the date of coming into force of the\r\nAct”. This phrase was inserted to give limited protection to the heirs of the\r\ntenant who died before the new Act came into force. By inserting the phrase\r\n“coming into force of the Act” the legislature has specifically referred to deaths of\r\ntenants before the coming into force of the new Act. This express provision\r\nexcludes any protection that may be claimed under Section 8 of the Bengal\r\nGeneral Clauses Act, 1897.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Further, assume that right up to the date of coming into force of the new Act, the\r\ntenant was a monthly tenant under the old Act and continued to be a monthly\r\ntenant under the new Act. But on the basis of the above provision a right was\r\nconferred upon the lessor, by statute, to evict the heirs of a deceased tenant on\r\nexpiry of five years from the death or coming into force of the new Act, whichever <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was later. This conferment of right by the statute upon the plaintiff is certainly a\r\nnew cause of action and this suit is competent. Even accepting the entire\r\ncontention of Ms. Doshi that the earlier suit has abated or was abandoned and\r\nthat no fresh suit could be brought on the same cause of action, this suit is\r\nmaintainable as it is based on a fresh cause of action as stated above.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Therefore, since the original tenant Uma Sankar Jalan died on 25th December,\r\n1999 any right of the defendant to remain on the premises was extinguished after\r\nfive years of the new Act on 9th July, 2006. </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Section 6 of the West Bengal Premises Tenancy Act, 1997 does not contemplate\r\nany notice to be given to the tenant when the tenancy has been extinguished in\r\nthe above manner. Notice is required when eviction is sought on one or more of\r\nthe grounds mentioned in section 6 of the said Act. Therefore, the plaintiff rightly\r\ndid not give any notice to the defendants.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Order in terms of prayer (a) of the Master’s Summons, I appoint Mr. L.K.\r\nChatterji, Advocate and former Sr. Central Government Advocate, as a Special\r\nReferee to determine the mesne profits payable by the defendants to the plaintiff\r\nfor wrongful occupation of the said property in accordance with order XX Rule 12\r\nfor a period which should not commence earlier than three years from the date of\r\ninstitution of this suit. Such determination of mesne profits may be made within\r\na period of three months from date. The Special Referee may be paid\r\nremuneration at the rate of 350 Gms. per sitting to be shared equally by the\r\nparties.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The application G.A. No. 2658 of 2011 is allowed. The suit is decreed to the above\r\nextent. The department is directed to draw up the decree expeditiously. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '93c7351753747d50c5a127c267ef1ea3.jpeg', 'd57511b01db9b0a7c32c24a185a65473.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-30', 1, '', '', '2022-05-28 19:47:27', '2022-05-30 10:38:54'),
(1742, '5WJhEvUYnvdMKxTGkztFBnL9L', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Real Estate Appellate Tribunal has no power to initiate suo moto proceedings under the Real Estate (Regulation and Development) Act, 2016. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Praveen Chhabra Vs Real Estate Appellate Tribunal.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P (C) 14552 of 2021 decided on 26 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Yashwant Varma.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. In terms of the impugned orders, the Real Estate Appellate\r\nTribunal1\r\nhas drawn suo moto proceedings in respect of various residential\r\nand commercial projects and construction activity being undertaken in\r\nconnection therewith in the National Capital Territory of Delhi and passed\r\norders of restraint in terms noted hereinafter.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. In terms of the order of 24 November 2021, the Appellate Tribunal\r\nhas noticed that the Real Estate (Regulation and Development) Act,\r\n20162\r\nplaces an obligation on all developers and builders to ensure that\r\nprojects are duly registered and completed in accordance with the\r\nprovisions made therein. The Appellate Tribunal has observed in the\r\naforesaid order that developers appear to have undertaken construction of\r\nprojects without complying with the mandatory obligation of registering the\r\nprojects with the Real Estate Regulatory Authority and thus violating the\r\nprovisions of the Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">5. The erudite and learned amicus has addressed the following\r\nsubmissions. Mr. Mehra submitted that the powers of the Appellate\r\nTribunal stand duly enumerated in Section 53. The learned amicus would\r\ncontend that the Act confers no power upon the Appellate Tribunal to draw\r\nproceedings on its own motion. Learned amicus has also taken the Court\r\nthrough the relevant provisions of the Act including Sections 34, 36, 37 and\r\n38 in order to delineate and distinguish the jurisdiction conferred on the\r\nAuthority and the Appellate Tribunal. It was submitted that while the Act\r\ndoes confer powers upon the Authority to draw proceedings suo moto in\r\ncontingencies contemplated and enumerated thereunder, no such power\r\nstands vested in the Appellate Tribunal. Learned amicus submits that the\r\nissue which stands raised in the present petition is in any case no longer res\r\nintegra bearing in mind the judgement rendered by the Court in Padam </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Singhee and Ors. vs. SVOGL Oil, Gas and Energy Ltd and Ors.  and\r\nShri Satyanarayan Rao vs. Indian Renewable Energy Development\r\nAuthority Ltd. and Ors. Mr. Mehra submits that the aforesaid decisions\r\nthough rendered in the context of the powers conferred upon the Debts\r\nRecovery Tribunal constituted under the provisions of the Recovery of\r\nDebts and Bankruptcy Act, 19936 would apply on all fours to the issue\r\nwhich arises in this petition and enable the Court to appreciate the\r\ncircumstances in which powers suo moto may be exercised by a statutory\r\ntribunal or appellate body.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. In order to appreciate, the challenge which stands raised in the\r\npresent petition, it would at the outset be relevant to contrast the power and\r\njurisdiction which the Appellate Tribunal and the Authority are conferred\r\nwith under the provisions of the Act. As is evident from a reading of\r\nSections 43 and 44, it is manifest that the Appellate Tribunal has been\r\nconstituted as a forum whose jurisdiction may be invoked by any person\r\naggrieved by a direction, decision or order made by the Authority or an\r\nAdjudicating Officer. Sections 43 and 44 of the Act do not confer,\r\nrecognize or envisage any original or plenary power or authority being\r\nexercised by the Appellate Tribunal. The authority of the Appellate\r\nTribunal stands confined to consideration of challenges that may be laid to\r\norders passed by either the Authority or the Adjudicating Authority. The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Act does not vest or confer any authority or jurisdiction upon the Appellate\r\nTribunal to initiate proceedings on its own motion.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18. Turning then to the provisions which deal with the constitution and\r\npowers of the Authority, it is manifest that it is obliged to regulate real\r\nestate projects, to ensure compliance of obligations placed on promotees,\r\nallottees and real estate agents. In terms of Section 35, where a complaint is\r\nreceived by it in respect of any real estate project, it is empowered to call\r\nupon the promoter, allottee or real estate agent to furnish information in\r\nwriting or explain its affairs to the Authority. The powers exercised by the\r\nAuthority under Section 35 can be set in motion either on a complaint or by\r\nthe Authority itself acting suo moto. Section 35(2) confers on the Authority\r\nthe same powers as are vested in a Civil Court under the Code of Civil\r\nProcedure, 1908 insofar as they pertain to discovery and production of\r\nbooks of account and documents, summoning and enforcing the attendance\r\nof persons, issuing commissions for the examination of witnesses or\r\ndocuments and other matters which may be prescribed. Section 36\r\nempowers the Authority to issue interim orders by way of restraint against a\r\npromoter, allottee or real estate agent injuncting it from carrying on any act\r\nwhich is complained of or noticed until the conclusion of the enquiry\r\ninitiated under Section 35. This very provision also empowers the Authority\r\nto issue interim orders ex-parte. The Authority in terms of Section 37 is\r\ninvested with the power to issue directions from time to time to any\r\npromoter, allottee or real estate agent and prescribes that all such directions\r\nwould be binding on parties concerned. Rule 22 enumerates the additional\r\npowers which may be exercised by the Authority and is referrable to the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">provisions contained in Section 35 (2)(iv). Similarly, Rule 29 spells out the\r\nadditional powers which may be exercised by the Appellate Tribunal and\r\nthus amplifies and provides content to the mandate of Section 53(4)(g).\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>19. On a consideration of the aforesaid provisions as made and\r\nincorporated in the Act, it is manifest that the Appellate Authority cannot\r\npossibly be recognized as conferred with the power to initiate proceedings\r\nsuo moto or on its own motion. This is evident from a reading of the\r\nprovisions engrafted in the statute and which enumerate and circumscribe\r\nthe jurisdiction of the Appellate Tribunal. The Appellate Tribunal, it must\r\nbe remembered, is a creation of statute. It is not an authority which may be\r\nrecognised as being vested with inherent powers. Regard must also be had\r\nto the fact that the Appellate Tribunal is not part of the hierarchy of\r\ntraditional judicial institutions which constitute the judicial system of our\r\ncountry. It is an appellate forum whose origin and formation stems from the\r\nprovisions of the Act. It is in that sense an adjudicatory authority which\r\nowes its existence and authority to a special statute. Viewed in that light it\r\nis manifest that it can neither assume nor arrogate to itself a power or\r\nauthority which may otherwise not stand conferred on it by the Act. There\r\nis thus an evident and blatant assumption of jurisdiction which otherwise\r\ndoes not stand vested upon the Appellate Tribunal. The Court thus comes to\r\nthe firm conclusion that the impugned proceedings are clearly ultra vires\r\nthe Act. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. The Court further notes that the patent lack of jurisdiction stands\r\nfurther highlighted when one compares the jurisdiction conferred upon the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Authority and the Appellate Tribunal. As is clear from a reading of Section\r\n35, the power to draw proceedings suo moto power stands specifically\r\nbestowed on the Authority. There is however a conspicuous and evident\r\nabsence of extension or conferral of similar powers on the Appellate\r\nTribunal. This, in the considered opinion of the Court, is not liable to be\r\nconstrued as legislative silence. It is in fact and to the contrary positively\r\nindicative of a conscious and evident legislative intent of not conferring\r\nsimilar powers upon the Appellate Tribunal. The Court thus comes to\r\nconclude that there was a patent lack of jurisdiction and the proceedings as\r\ndrawn by the Appellate Tribunal are liable to be quashed in entirety.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">21. Turning then to the impugned orders passed, the Court notes that the\r\norder of 17 November 2021 had not been passed while the Appellate\r\nTribunal was in seisin of any order or direction made by the Authority or\r\nthe Adjudicating Officer. The Court also notes that the order of 17\r\nNovember 2021 proceeds on the basis that there is rampant non-compliance\r\nof the provisions of the Act within the NCT. The Appellate Tribunal also\r\ntook cognizance of a report submitted by its Registry which appears to have\r\nalluded to allegations of innocent people being duped by real estate agents\r\nand housing developers who were implementing projects in areas falling\r\nunder the Land Pooling Policy of the Delhi Development Authority. It\r\nseems to have issued various communications to the Commissioner of\r\nPolice seeking details in respect of these projects and consequent to no\r\ndetails being proffered, it proceeded to register the case suo moto.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. On 24 November 2021, the Appellate Tribunal went even further and\r\nframed an omnibus direction restraining all construction activities, be it\r\nresidential or commercial, in the NCT of Delhi. The aforesaid direction was\r\nto cover all projects which had failed to register in terms of the provisions\r\ncontained in Section 3(2) of the Act. The Court notes that Section 3(1)\r\nprescribes that no promoter shall advertise, sell or offer to sell, or invite\r\npersons to purchase any plot, apartment or building in any real estate\r\nproject which is not registered under the Act. The first proviso to Section\r\n3(1) then stipulates that in case of ongoing projects which are under\r\ndifferent stages of implementation on the date of commencement of the Act\r\nand in respect of which a completion certificate may not have been issued,\r\nwould also require to be registered within three months from the date of\r\ncommencement of the Act. Section 3(2) is an exemption provision and\r\nspecifies projects which may not require registration under the Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. It would be relevant to note that the Act came into force on 26 March\r\n2016. As this Court views Section 3, it is manifest that the same would\r\nprincipally apply to projects which may commence thereafter. In light of\r\nthe mandate of Section 3(1) and insofar as ongoing projects are concerned,\r\nthey would stand governed by its first Proviso. Similarly, Section 3(2)\r\nspecifies the various contingencies in which a real estate project may be\r\nexempted from the requirement of compulsory registration under the Act.\r\nThe provisions of Section 3 clearly indicate that the requirement of\r\nregistration is one which necessarily merits an enquiry and examination of\r\nthe facts of each real estate project before the Authority or the Appellate\r\nTribunal may come to conclude that registration is mandated.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. This Court finds itself unable to appreciate the omnibus direction\r\nwhich ultimately came to be issued by the Appellate Tribunal on 24\r\nNovember 2021. The Appellate Tribunal clearly and abjectly failed to bear\r\nin mind the true ambit of Section 3 and proceeded on the incorrect and\r\nunfounded premise that all projects were liable to be compulsorily\r\nregistered under the Act. The Court also takes into consideration the\r\nsignificant portent of the direction issued. It has practically injuncted all\r\nconstruction activity in the NCT of Delhi. The aforesaid injunction is not <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">shown to have been preceded by any enquiry with respect to the validity of\r\na particular project or even a prima facie assessment or evaluation of the\r\nvalidity of a single project. In fact, the order does not even take note of a\r\nproven or evident violation of the provisions of the Act by a particular\r\nproject. This Court is constrained to observe the procedure as adopted by\r\nthe Appellate Tribunal can neither be countenanced nor accorded an\r\nimprimatur.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>25. Accordingly, and for all the aforesaid reasons, the instant writ\r\npetition is allowed. The impugned orders of 17 November 2021 and 24\r\nNovember 2021 are hereby set aside. For reasons aforenoted, all\r\nproceedings relating to Suo Moto Case No. REAT/0002/2021 shall also\r\nstand quashed. This judgment shall however not be construed as restraining\r\nthe Authority from independently examining the validity of individual\r\nprojects and enforcing the provisions of the Act in accordance with law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4995dbaa426f3577e5661ee504ea6eb3.jpeg', '14d947005c458f5c45195bb502c838d7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-30', 1, '', '', '2022-05-28 19:58:05', '2022-05-30 03:22:51'),
(3040, 'NjH7h3HPzxR9aLqwCdUVZMQLR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Wife filing complaint under Section 498A, IPC simultaneously or immediately after husband issuing a notice for divorce will not and can by no stretch of imagination result in the complaint rendering itself insignificant. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pramod R.S. Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 1511 of 2023 decided on 2 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is before this Court calling in question registration of a crime in Crime No.61 of 2022 registered for offences punishable under Sections 498A, 307 and 506 of the IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Shorn of unnecessary details, the facts in brief germane are as follows:- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The petitioner is the sole accused and the 2nd respondent is his wife, the complainant. The two get married on 19-04-2021. It is alleged that on certain torture, the 2nd respondent/ complainant leaves the matrimonial house on 14-08-2022. The petitioner then causes a legal notice upon the 2nd respondent seeking amicable settlement and resolution of the dispute between them for the purpose of dissolution of marriage. The said notice was caused on 13-10-2022. Later, the wife registers a complaint against the petitioner/husband on 1.12.2022 which becomes a crime in Crime No.61 of 2022. It is the registration of crime against the husband is what drives the petitioner to this Court in the subject petition.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">7.<span style=\"white-space: pre;\">	</span>The issue now lies in a narrow compass. The petitioner and the 2nd respondent are the husband and wife who got married on 19-04-2021. It is the averment in the petition that on several allegations the wife leaves the matrimonial house on 14-08-2022. The petitioner then on 13-10-2022 causes a legal notice upon the wife wherein he projects himself to be suffering from mental trauma at the hands of the wife and seeks resolution of matrimonial dispute amicably and dissolution of marriage by mutual consent within 15 days. The narration in the notice is that the wife should desist from filing a false claim and initiating malicious proceedings against the husband or the family members.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>The matter is at the stage of investigation. Therefore, the papers of investigation were summoned for perusal. On a perusal at the papers of investigation and statements available therein would clearly indicate the ingredients of the offences so alleged.   There are communications from the Hospital sought by the Investigating Officer which indicate the treatment. Prima facie, I find the offences being met, they are to be investigated. At this stage, quashment of proceedings against the petitioner/husband would not arise on the ground that the complaint is registered immediately after receipt of the legal notice caused by the petitioner.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>There is some purpose in the aforesaid provision. The statements recorded during investigation clearly indicate that those ingredients are prima facie met. Section 307 of the IPC is also alleged against the petitioner. The complaint clearly makes out ingredients of the offence under Section 307 of the IPC which deals with attempt to murder. Strangulation and giving blows on the back is what is alleged in the complaint. If these ingredients are to be ignored and brushed aside merely because the complaint is registered immediately after receipt of the notice of divorce or amicable settlement for dissolution of marriage, it would lead to a disastrous effect. As in a given case, if the allegations of torture are made over a period of time, say a year or two or even in the immediate past of the complaint and ‘the husband issuing  a notice for divorce simultaneously or immediately before the complaint, will not and can by no stretch of imagination result in the complaint rendering itself insignificant’. It would require investigation. It would be altogether a different circumstance if the complaint does not even make out ingredients of the offence so alleged or does not lay down the necessary foundation for alleging the offences in a given case. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>It is no doubt true that there are cases after cases where members of the family are dragged into the web of crime by the wife while registering the complaint invoking Section 498A of the IPC. The offences are justified, in some cases and offences are in abuse of the process of law, in some cases. Therefore, it is to be considered on a case to case basis. There cannot be a declaration of law as is contended by the learned counsel for the petitioner that once the divorce notice is sent by the husband, the complaint registered by the wife thereafter loses its significance. If this contention is accepted, it would have a chilling effect on all the complaints. Therefore, this submission is noted only to be rejected, as it is fundamentally flawed.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>10.<span style=\"white-space:pre\">	</span>Insofar as the judgment relied on by the learned counsel for the petitioner rendered by the co-ordinate Bench in Crl.P.No.201257 of 2019 the reasons rendered by the co-ordinate Bench are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><i><b>“06. On careful reading of the dictum of the Hon’ble Supreme Court, in the present case, the respondent No.2 lodged the written complaint, which carries four pages. The complaint contains several allegations against the petitioners. However, till 25.12.2018, she has not lodged any complaint against the in-laws. In the complaint there is specific allegation about assault made out against all the petitioners. However, it appears that the allegations are omnibus and absurd in nature and the said allegations are not sufficient to invoke the provisions as stated supra. Unless, there are no allegations made out against each petitioners independently, it cannot be construed that the petitioners have committed the offence. Regard being had to the submission of the learned counsel for the petitioners that the husband of the respondent No.2 had filed divorce petition on 17.12.2018 at Solapur Family Court. As a token of retaliation, the respondent No.2 filed complaint against all the petitioners assumes greater significance. Therefore, the criminal case filed by the wife, in respect of cruelty, dowry harassment against the husband and in-laws loses its significance, in case the complaint is made, after receiving the divorce notice from her husband. Hence, it is a fit cases to exercise the inherent jurisdiction to quash the proceedings.”<br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The decision of the co-ordinate Bench holding that criminal case filed by the wife in respect of cruelty and dowry harassment against the husband and in-laws would lose any significance in case the complaint is made after receiving the divorce notice from the husband, defeats the very object of Section 498A of the IPC, or even complaints made under Section 12 of the Protection of Women from Domestic Violence Act, 2005. The purpose in introducing chapter XX-A bringing in Section 498A in the Indian Penal Code was with the objective to prevent torture to a women by her husband or by the relatives of the husband. It was added with a view to punish such people aforesaid, who would meet out harassment or torture to the wife to satisfy their unlawful demands of dowry. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">11.<span style=\"white-space: pre;\">	</span>If the aforesaid hyper-technical contention is accepted, it would act against the interests of women and the object for which the provision was added. The enactment of the legislature with the aforesaid purpose cannot be rendered illusory by a declaration that the complaint would lose its significance for the reason that it is registered immediately after the receipt of a notice of divorce from the hands of the husband.  Therefore, the declaration of law made by the co-ordinate Bench can at best be held to be applicable and restrictable, to the facts obtaining in the said case. The submission of the learned counsel that it is universally made applicable in terms of the order is unacceptable, particularly qua the facts obtaining in the case at hand. Though the proceedings therein were quashed at the FIR stage, I deem it appropriate not to accede to the contention of the learned counsel for the petitioner that the said judgment should be followed and the present proceedings obliterated against the petitioner.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> (i)<span style=\"white-space: pre;\">	</span>Criminal Petition is dismissed.</font></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4eef29fdf5602c42e5e249b29a009891.jpeg', '6fa4aa9e622429f77d92c682e1811890.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-07', 1, '', '', '2023-06-06 12:29:26', '2023-06-07 10:22:01');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1802, 'K7G2LWQUVCURwvuuRxbYYFgL3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Allottee of a civic amenity site is not barred from seeking allotment of adjacent civic amenity site for expansion. Authority must consider the applications transparently. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Innisfree House School Vs The Bangalore Development Authority and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 7124 of 2014 decided on 24 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The petitioner is a School managed by the Bolar Educational Trust, established in 1985, to impart education to the children of J.P.Nagar and surrounding areas of Bangalore South. The School is affiliated with the Council for the Indian School Certificate Examination, New Delhi (ICSE). The petitioner claims to have 850 students on its rolls from Pre-nursery to Standard X.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">3. The said School-petitioner had earlier applied for and was granted a lease in the year 1990 in respect of Site No.36, Sarakki I Phase, measuring 49 mtrs. x 81 mtrs., total area of 3969 sq. mtrs. for the purpose of running of a School. Subsequent thereto, the petitioner has established the School and is running the same as aforestated </font></span><font face=\"Calibri, sans-serif\">fenced and permitted to be used by the petitioner in all amount to 6609 sq.mtrs i.e., in the entire civic amenity Site No.36.</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The petitioner making use of the said land had made several representations to the respondent No.1 seeking for allotment of balance land. Instead of doing so, respondent No.1 had issued a notification in the year 1991 notifying the availability of an extent of 875 sq.mtrs (35 x 25 mtrs) for allotment of a civic amenity. The residents had filed a Writ Petition in W.P.No.2261/1922 challenging the said notification. This Court had granted an interim order, which was in force until the dismissal of the Writ Petition on 26.05.1997 on the ground that the petition was based on the apprehensions of the petitioner and there are no facts which are placed to establish that in fact such an allotment would to be made to a third party.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Subsequently the adjoining property was allotted to the Department of Youth Services and Sports Youth Centre in the year 2001, which again came to be challenged by the petitioner before this Court in W.P.No.30050/2001 and this Court vide order dated 11.02.2005 set aside the allotment and directed the Bangalore Development Authority (for short, ‘BDA’)-respondent No.1 to reconsider the decision after ascertaining the requirement of the petitioner. This Court in its order had also permitted the petitioner as also the Department of Youth to approach the BDA for allotment of the land. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. On 19.07.2005, the Bangalore Development Authority had allotted Civic Amenity Site No.36/A to Hindustan Petroleum Corporation Limited which has challenged by the petitioner in W.P.No.15901/2006. This Court vide its order dated 07.08.2007 allowed the Writ Petition, quashed the allotment made in favour of HPCL and BDA were directed to follow the requirement of Rule 3 of Bangalore Development Authority (Allotment of Civic Amenity Sites) Rules, 1989. This Court further observed that it is open to the petitioner as well as HPCL to approach BDA to apply for the allotment of the civic amenity site which is required to be considered by the BDA on its merits in accordance with law. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. Subsequent thereto, the petitioner submitted various representations seeking for allotment of the said land in favour of the petitioner. The respondent No.1, however, rejected the said request vide its order dated 02.11.2009 and allotted Site No.36/A(P1) measuring 1640 sq. mtrs to respondent No.2 and to an extent of 1000 sq. mtrs in Site No.36/A(P2) to the respondent No.3. These allotments were challenged by the petitioner in W.P.No.36787/2009, which came to be allowed by this Court vide its order dated 31.01.2012 and the allotment made in favour of respondents No.2 and 3 were quashed and BDA was directed to deal with the said civil amenity sites in terms of the directions issued in W.P.No.15901/2006 vide its order dated 07.08.2007. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. Subsequent thereto, BDA issued a notification on 13.01.2013 calling for allotment of sites under the BDA (Allotment of Civic Amenity Sites) Rules, 1989 (for short, ‘Rules’). Both the petitioner and respondents No.2 and 3 applied by submitting their applications, documents and the required amount. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. The BDA vide its resolution dated 22.10.2013 vide Subject Nos.1/13 and 186/2013 allotted site No.36/A(P1) measuring 1640 sq. mtrs to the respondent No.2 and 1000 sq.mtrs to the respondent No.3 respectively. It is the said allotment which is under challenge before this Court in the present writ petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. A perusal of the petition indicates that there is a specific averment that the petitioner school is managed by Bolar Education Trust established in the year 1985 to impart education. A perusal of the application which has been filed for allotment and produced at Annexure-P also indicates that the application has been filed by Bolar Education Trust, represented by its Trustee and the said application is filed for the purpose of establishing a Social and Cultural Centre by stating that the petitioner has been running a school in Plot No.36/A of J.P.Nagar I Phase. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. It has also been stated in the application that the petitioner has been attempting to obtain allotment of the plot for the last 22 years and requisite amounts have also been paid by Bolar Education Trust and receipt issued by BDA is also in the name of Bolar Education Trust, in fact, the receipt issued by the BDA also indicates that it is issued to Bolar Education Trust which is running the petitioner’s school. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. In view of the above, the writ petition having been filed in the year 2014, I am of the considered opinion that it would amount to a travesty of justice if the submission of counsel for respondent No.2 is accepted at this stage and the petition dismissed on a mere technicality when both the petitioner and respondents are clearly aware that the petitioner’s school has been established and run by a Trust and the said Trust satisfies the requirement of Rule 2(d) of the Rules of 1989. The matter could have been different if the said requirement had not been satisfied, since I am of the considered opinion that those requirements have been satisfied and more so taking into consideration that the BDA had earlier allotted a plot measuring 3969 sq.mtrs, such a technical objection would not be maintainable.  </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22. A perusal of the above directions indicates that the Authority was required to strictly follow the Rules while disposing of balance civic amenity sites. There was a specific reference made to Rule 3 as regards issuing notifications and inviting applications. This Court has specifically stated that notwithstanding the order, it is open to the petitioner as well as respondent No.2 therein, i.e., the Hindustan Petroleum Corporation Limited to approach the BDA when it is offered for lease to apply for the same and the same to be considered by the BDA in accordance with law. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23. When the said order was passed there was no submission made by the BDA that the petitioner was not eligible for further allotment of plot, since there is already an allotment of a plot. If at all such a submission had been made, this Court could have probably considered the same. Having conceded at that point of time for the petitioner to apply in the event of the notification being issued, it would not now be permissible for the BDA to contend that the petitioner having been allotted a plot already could not have applied for further allotment and/or filed the present petition calling in question the allotment made to respondent No.2 and 3. A perusal of the Rules of 1989 also does not indicate any prohibition for an allottee of a civic amenity site not to apply for further allotment. Be that as it may that is not the reason attributed in the resolutions to reject the claim of the petitioner. Infact the need of the school is for expansion and use as a playground, which is of utmost importance and requirement for the students, the BDA ought to have taken this factor into consideration and aided the functioning of an already existent and running school rather than allotting the land to a new applicant. It is rather shocking that the BDA has not even bothered to consider the requirement of the school and its children, which is paramount.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25. A perusal of the same would indicate that apart from the objective and activities of the applicant and financial position, as also bonafides of the applicant, what is required to be considered by the BDA is the present location of the institution of the applicant, benefit likely to accrue to the general public of the locality, as also the need of civic amenity site by the institution for providing civic amenity in question. In the present case as observed above, there is no dispute that the petitioner is running a school with about 850 students in the adjoining property. The petitioner has applied for and requested for allotment of adjoining site since the same has already been put to use as a playground and that the said property would be required for the school and the students. It was but required for the BDA while passing the resolution and taking decision on the applications received by adverting to all the parameters which have been enumerated under Rule 7 of the Rules.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26. The BDA also ought to have adverted to the requirement of all the applicants and not only the successful applicant in whose favour the BDA has granted the site. A perusal of the resolution aforementioned indicates that insofar as plot No.36-A/P1 there were 16 applications received and insofar as plot No.36-A/P2 there were 20 applications received. A perusal of the resolution does not indicate even the name of those applicants nor the purpose for which the applications have been filed by them, let alone the consideration of the parameters which have been fixed under Rule 7 of the Rules of 1989. In this background though Sri.Gurudas S.Kannur, learned Senior counsel has submitted that all the aspects have been considered and the discretionary power of BDA is exercised in a proper manner, I am unable to accept the submission since exfacie none of the requirements of Rule 7 has been considered. The discretionary power vested with the BDA is also required to be exercised in a proper and required manner and the said discretion is not absolute. The BDA being a statutory authority is required to discharge its functions within the parameters fixed by the statute and the Rules. The comparative analysis of all applications is required to be made in terms of Rule 7 to arrive at who best deserves to be allotted with the said Civic Amenity site. Such an analysis would establish the application of mind as also the transparency in the process. Instead of doing so, it appears that the BDA has chosen who is to be allotted with the Civic Amenity site and considered the application filed, which is not permissible.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>30. It is due to the said submission that this Court is constrained to observe the manner in which respondent No.1-BDA has acted, inasmuch as this Court had directed the BDA to issue a notification and permitted the petitioner to participate in the same. The allotment made in favour of respondent No.2 on earlier occasion was for a Social Welfare Centre and the allotment which had been made in favour of respondent No.3 was for a Technical Training Centre and it is glaringly apparent from the notification that it is only to satisfy the requirement of respondents No.2 and 3 that the purpose of inviting application has been shown as a Social Welfare Centre and Technical Training Centre. This in my considered opinion appears only to disqualify the petitioner which is impermissible. That being so the allottees cannot take advantage of the action of BDA, since it is ex-facie apparent that the notifications have been issued with the relevant classification only on their behalf.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>31. The last contention which has been advanced by Sri.P.N.Manmohan, learned counsel for respondent No.2 is that a writ of certiorari being a discretionary remedy, this Court could refuse to extend the benefit of discretionary relief even though the decision may be erroneous since grant of a certiorari would come in the way of substantial injustice being done. This submission is made by referring to para No.43 in the Judgment of Chandra Singh’s case extracted supra.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>32. A perusal of the said para 43 indicates that the observation made by the Hon’ble Apex Court was made while considering the fact that if the writ petition were to be allowed and illegal order quashed, the same would revive another illegal order. In the present case, I am of the considered opinion that quashing of the order sought for in the present petition would not revive any illegal order but only come to the rescue of the petitioner who has been made to suffer from illegal resolution passed which is contrary to and violative of Rule 7 of the Rules 1989. In my considered opinion the impugned order suffers from various legal infirmities which have been detailed hereinabove.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space:pre\">	</span>The writ petition stands allowed;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ii.<span style=\"white-space:pre\">	</span>The allotment dated 6.12.2013 at Annexure-T insofar as plot No. 36/A (P2) in favour of respondent No.3 and allotment dated 9.01.2014 at Annexure-V insofar as plot No. 36/A(P1) in favour of respondent No.2 is quashed;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>iv.<span style=\"white-space:pre\">	</span>In the event of the plot being allotted to the Petitioner, the BDA shall endeavor to allot a similarly situate plot to Respondents 2 and 3 within a period of 3 months thereafter.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '16ed775b2397e421b3490aa40fd64032.jpeg', '09b124bff85c876cacb73bff927f50dc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-11', 1, '', '', '2022-06-10 19:19:08', '2022-06-11 08:10:14'),
(1799, 'Bsyp0937ogbd2ktLRx1H646QU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Interpretation of statutes. Proviso to a provision cannot control the main provision nor be interpreted in a manner which renders the main provision nugatory or otiose. Karnataka High Court. ', '<p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Writ Petition 1920 of 2021 decided on 27 May 2022.<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Chief Justice Ritu Raj Awasthi and Justice S.R. Krishna Kumar.</span></b></p><p><b>3. Petitioner was granted a Prospecting License dated 14.8.2007 for iron ore and associated minerals over an area of 1500 hectares in Sandur Taluk, Bellary District by the Government of Karnataka, for a period of 3 years. The prospecting is to be undertaken in accordance with the requirements of Mineral Conservation and Development Rules, 1988 and prospecting report is required to be submitted. In the event that on such prospecting, mineable quantity of mineral is found in the scientific prospecting and the prospecting report is found to be in accordance with law, the licensee has a right in law to apply for the mining lease in terms of Section 11 of the MMDR Act.</b></p><p><b>3.1 It is contended that in accordance with the Prospecting License and the MMDR Act, the petitioner undertook detailed prospecting operations in terms of Prospecting Scheme duly approved by Indian Bureau of Mines at considerable cost to the petitioner. Based on the scientific operations undertaken by the petitioner, the petitioner was able to establish mineable reserves of iron ore of low grade (35% to 45%) and quartz ore in the license area. Thereafter, the prospecting report was submitted by the petitioner to IBM in terms of the MCDR 1988, as well as to the State Government of Karnataka on 06.10.2008.</b></p><p><b>3.2 It is further contended that on successful completion of the prospecting operations and establishment of minerals within the license area the Petitioner submitted an Application for grant of mining lease dated 6.10.2008 along with its detailed Prospecting Report, to the Director, Department of Mines and Geology, Government of Karnataka. Along with such application, the petitioner also submitted a Demand Draft of Rs. 3,500/- for the fees for the application in terms of Rule 22(3) of the Mineral Concession Rules, 1960.</b></p><p><b>3.3 It is contended that on 27.3.2015, the Mines and Minerals (Development and Regulation) Amendment Act, 2015 was enacted to amend the MMDR Act with effect from 12.1.2015. As per the newly inserted Section 10A (1) of the said Act, all pending applications for mining leases were declared to be ineligible other than the exceptions created in sub-clause 2 of Section 10A. it is contended that the legislature being alive to the vested rights which had already accrued to the prospecting licensees who had undertaken the entire prospecting operations at their own cost, with a view to seek mining leases, if the availability of mineral was proved, protected their rights to get mining leases under Section 10A(2)(b). Accordingly, the&nbsp; application of the Petitioner herein for grant of mining lease was valid and saved under the aforesaid provision.</b></p><p><b>3.4 Pursuant to the said amendment, the Government of Karnataka issued a Standard Operating Procedure vide Government Order dated 25.5.2016, to process applications for grant of mining lease in terms of Section 10A(2)(b) of the MMDR Act. Moreover, on 27.6.2016, the Government of India directed all State Governments to expedite the processing and disposal of concession proposals for seeking approval of the Central Government under Section 10A(2)(b). It is further contended that after undergoing the level-by-level scrutiny of the documents and information submitted as prescribed in the said SOP, the petitioner’s proposal came to be approved by the Commissioner, Department of Mines and Geology for grant of mining lease on 17.8.2016. Thereafter, the petitioner’s proposal was also scrutinized by the Screening Committee which had been constituted for the very purpose of ensuring completeness of the proposal submitted by the applicant and was approved by the Screening Committee on 19.9.2016.</b></p><p><b>3.5 It is also contended that the petitioner’s proposal was duly examined by the Ministry of Commerce and Industries of the State of Karnataka, and thereafter with the approval of Minister of Mines, State Government of Karnataka, the same was forwarded to the Central Government on 21.7.2017. The said letter recorded that&nbsp; the application was eligible for grant of mining lease under Section 10A(2)(b) of the MMDR Act, and requested the Ministry of Mines, Government of India to accord its approval under the said provision subject to the area finally available after conducting the total station/ DGPS survey including all safety margins.</b></p><p><b>31. The MMDR Amendment Act 2021 has to be interpreted keeping in view the principles laid down by the Supreme Court in Shyam Sunder v.&nbsp; Ram&nbsp; Kumar and Suhas H. Pophale v. Oriental Insurance Co. Ltd. According to the respondents, all cases under Section 10A(2)(b) would stand covered by the said provision. The argument though attractive at first does not merit acceptance. To accept the said submission would result in completely rendering Section 10A(2)(b) otiose. The said section protected rights of a certain category of persons who would stand vested with rights to obtain the mining concession on satisfaction being arrived at by the State Government. If the contention is&nbsp; accepted then all those cases where the satisfaction of the State has been arrived at, including where previous approval of the Central Government, where necessary, has also been given and the mining lease has not been executed awaiting the grant of statutory permissions like mining lease, environmental clearances, forest clearances etc, the same would also stand lapsed. This would be contrary to the objective being sought to be achieved viz., to avoid delay. The lapsing of such rights and auctioning the lease would not result in immediate production of minerals as even after auction the successful bidder would have to obtain the clearances and permissions in terms of Rule 10 of the Mineral (Auction) Rules, 2015 and considering that t he taking of permissions is time consuming a period of 5 years is provided to execute the lease deed. In effect, if all cases which would fall within Section 10A(2)(b) are to be considered to be covered by the proviso then it would necessarily lead to another 5 years or even more taking into account the process of auction would also&nbsp; take some time, before mineral production can start. This would never have been the intention of the legislature or the effect contemplated.</b></p><p><b>32. Being conscious of the outcome that the legislature desired the term \"cases covered under this clause\" was qualified by \"including pending cases\". The use of the word \"includes\" or \"including\" though generally used as a means of extension, however this is not an inflexible rule and depending on the context in which it is used, it can also refer to \"means\".</b></p><p><b>33. In South Gujarat Roofing Tiles Manufacturers Association and Anr. vs State of Gujarat &amp; Anr., (1976) 4 SCC 601 the Supreme Court while considering explanation to entry 22 to Schedule of Minimum Wages Act and considering the context in which it was used arrived at the findings that the word \"includes\" had not been used as a word of extension but rather as a word of limitation and in the sense of \"means\". The said conclusion was arrived at by the Court as though the entry 22 was couched in wide terms as \"employment in pottery industry\" vide the explanation it was mentioned that the entry would include manufacture of 9 articles of pottery. As such no purpose would have been achieved by use of the term \'includes\' as it is generally understood as a word of extension.</b></p><p><b>34. Similarly in the present case the term \"cases covered under this clause\" was sufficient and wide enough to cover all cases however the use of word \"including\" reflects that the legislature&nbsp; wished&nbsp; to restrict the proviso only to \"pending cases\" and not all cases to avoid the anomaly it would result&nbsp; in,&nbsp; as noticed above. The word \"including\" in the proviso to Section 10A(2)(b) as such is used as a&nbsp; limiting word and not as an extension or expansion and is to be understood in the sense of \"means\" .</b></p><p><b>36. This brings us to the next logical question as to which cases would be covered under the term \"pending cases\". The answer to the said question is also in the language of Section 10A(2)(b) which provides that a person shall have a right for obtaining the mining lease on satisfaction of the State Government of the&nbsp; conditions mentioned in clause (i) to (iv). Therefore, where the satisfaction of the State Government has been arrived at, the State is rendered functus officio and the right stands crystallized. The proviso seems to have an effect of lapsing the right to obtain, which could only be referable to cases where the satisfaction is not yet/yet to be arrived at and not to cases where satisfaction is already arrived at by the State Government.</b></p><p><b>37. Further the term “lapse\" as used in the proviso to Section 10A(2)(b)is generally used for reverting .of a right from a party which has failed to fulfill its obligations or conditions under&nbsp; which&nbsp; such right was given. The said term \"lapse\" is also used in Section 4A(4) of the MMDR Act where again the right lapses on failure of the lessee to start&nbsp; mining operations. Parliament has employed&nbsp; the&nbsp; said&nbsp; term also in the Land Acquisition Act, 1894 and the Right to Fair Compensation and Transparency in&nbsp; Land Acquisition, Rehabilitation and Resettlement Act, 2013 whereunder on the failure of the statutory authority to compete the acquisition process within the statutorily prescribed time period, the acquisition proceedings lapse.</b></p><p><b>38. Therefore, keeping in view the aforesaid principles and the use of specific terms, it is evident that the legislature was desirous of applying the proviso to only a certain class of persons within Section 10A(2)(b) viz ., those who had either till date not completed the reconnaissance or prospecting operations despite 5 years from 2015, which was the outer limit provided by the Act under unamended Section 7 or those whose applications were yet to be processed and the State had not arrived at the satisfaction. Any other interpretation would do violence to the language&nbsp; and&nbsp; intention&nbsp; of&nbsp; the legislature . It would never have been the intention of the legislature to punish a party who had complied with the law or to allow the executive to defeat the rights of parties by delaying performing their duties.</b></p><p><b>40. If the legislature was desirous of revoking the said vested rights, the amendment would have been made to the main provision or the said provision could have been omitted with retrospective effect. Having not done so and rather having opted the legislative tool&nbsp; of&nbsp; a proviso being inserted to the&nbsp; main&nbsp; provision,&nbsp; the&nbsp; well settled principles of the object and purpose of a proviso would come into play. The Respondents have also relied on a large number of judgments with regard to effect of a proviso, however none of the said judgments support the view that the proviso can have the effect of nullifying the main provision itself, as such the present judgment is not being burdened with the said judgments which have otherwise been considered by the constitution bench in Indore Development (supra).</b></p><p><b>41. As the proviso does not take&nbsp; away&nbsp; vested ri ghts with retrospective effect, the writ petition which has been filed by the petitioner claiming that the right under Section 10A(2)(b) of the Mines and Minerals (Development and Regulation) Act, 1957 as already fructified and being a vested right, has to be proceeded with based on the law as it stood then and taken to its logical conclusion.</b></p><p><span style=\"background-color: rgb(255, 255, 0);\"><b>(v) It is well settled that a proviso to a provision cannot control the main provision nor be interpreted in a manner which renders the main provision nugatory or otiose as held in various judgments including the decisions of the Apex Court in the cases of Tahsildar Singh vs. State of U.P.46, Casio India Company Private Limited vs. State of&nbsp; Haryana and Indoor Development Authority vs. Manohal Lal.&nbsp;</b></span></p><p><span style=\"background-color: rgb(255, 255, 0);\"><b>(vi) As held by the Apex Court in the case of Giridari Lal vs. Balbir Nath Mathur49, any interpretation / construction of a provision that would lead to anomalies, injustice or absurdity should not be adopted and the interpretation that would advance the object of the provision should be given effect to. In this context, it has to be stated that the proviso to Section 10A(2)(b) inserted in 2021 cannot be interpreted in such a narrow or restricted manner so as to wipe out or nullify all cases where the lease deeds have not been executed in favour of the prospecting licence holders who had applied for grant of Indocil Silicons Pvt Ltd Vs Union of India and others</b></span></p><p><b>42. In view of the aforesaid facts and circumstances, we are of the considered opinion that the provisos to Section 10A(2)(b) of the MMDR Act, 1957 as inserted vide Amendment Act No.16 of 2021 w.e.f. 28.03.2021 are not applicable to the applications, claims etc., of the petitioners who are entitled to obtain mining leases and lease deeds from the State Government without reference to the said amendment or the proviso inserted thereby.</b></p><p><b><br></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>ORDER</b></span></p><p><b>(i)<span style=\"white-space: pre;\">	</span>W.P.No.1920/2021 is allowed. The respondent No.1 as well as respondent Nos.2 and 3 are directed to issue the necessary orders for grant of lease under sub- clause (9) of Rule 7 of Mineral Concession Rule, 2016 within a period of 6 weeks whereafter the petitioner will be entitled to execution of the lease deed on satisfying the conditions stipulated in clause (10) of Rule 7 of Mineral Concession Rule, 2016.</b></p><p><b>(ii)<span style=\"white-space: pre;\">	</span>W.P.No.8807/2020 is hereby allowed and the respondents are directed to take necessary steps to&nbsp; execute Mine Development and Production Agreement and Mining Lease in favour of the petitioner and do all&nbsp; necessary acts, deeds and things pursuant thereto in accordance with law without reference to the provisos to Section 10A(2)(b) of the MMDR Act, 1957 as inserted vide Amendment Act No.16 of 2021 w.e.f. 28.03.2021 as expeditiously as possible and within a period of six weeks from the date of receipt of a copy of this order.</b></p><p><b>(iii)<span style=\"white-space: pre;\">	</span>W.P.No.17402/2021 is hereby allowed and the impugned order / letter dated 01.06.2021 passed / issued by the 3rd respondent is hereby quashed.</b></p><p><b>(iv)<span style=\"white-space: pre;\">	</span>W.P.No.5973/2021 is hereby allowed and the respondents are directed to take necessary steps to&nbsp; execute Mine Development and Production Agreement and Mining Lease in favour of the petitioner and do all&nbsp; necessary acts, deeds and things pursuant thereto in accordance with law without reference to the provisos to Section 10A(2)(b) of the MMDR Act, 1957 as inserted vide Amendment Act No.16 of 2021 w.e.f. 28.03.2021 as expeditiously as possible and within a period of six weeks from the date of receipt of a copy of this order.</b></p>', '261f060fb1df7df06d38313e31c8e680.jpeg', 'eccac8fe5408de243153e3c469d7b3e3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-09', 1, '', '', '2022-06-09 16:45:40', '2022-06-09 06:26:31');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1744, 'oDYez8zHrWvTgLBYmVATLu6VC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'In a contempt jurisdiction, court can consider only those directions which are plainly self-evident to determine the violation or disobedience. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jiva Institute of Vedic Science and Culture and another Vs Puneet Chhatwal and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CCP(O) 33 of 2022 decided on 25 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Jyoti Singh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Factual exposition, as set out by the Petitioners/Plaintiffs is that vide\r\norder dated 17.10.2006, this Court had granted an ex parte ad interim\r\ninjunction against Respondent No.6 herein (Defendant No.1 in the suit) and\r\nits Managing Director (Defendant No.2 in the suit), restraining them from\r\nadopting and/or using the trademark ‘JIVA’ or any other identical or\r\ndeceptively similar or confusing mark, in relation to their goods and services\r\nand from manufacturing, advertising and marketing, etc. any goods or\r\nservices under the said trademark. In an appeal against the said order, the\r\nDivision Bench of this Court, vide order dated 30.05.2008 partly allowed the\r\nappeal, whereby the order dated 17.10.2006, restraining the Appellants\r\ntherein from using the trademark ‘JIVA’ for their Spas run in the hotels\r\nestablished by them, was vacated, subject to certain conditions, while the\r\norder to the extent it restrained the Appellants from selling, using or offering\r\nfor sale/use any ayurvedic product under the trademark ‘JIVA’, was\r\nconfirmed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. In 2014, it is averred, that when it came to the knowledge of the\r\nPetitioners that the orders were being violated by Respondent No.6, a\r\ncontempt petition being CCP(O) No.126/2014 was filed, wherein, after\r\nhearing the parties extensively, the Court had taken on record the statement\r\nand assurance on behalf of the Respondents therein including Respondent\r\nNo.6 that they would not use the mark ‘JIVA’ in relation to disputed goods\r\nor for any cosmetic, soaps, ayurvedic, non ayurvedic, or any other allied and\r\ncognate goods, except in respect of ‘JIVA’ for Spa and in relation to pillow,\r\ntowels, handkerchiefs and other articles related to the Spas. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Learned counsel for the Petitioners submits that recently, it has come\r\nto the notice of the Petitioners that Respondent No.6 has been advertising\r\nand marketing its non-ayurvedic products such as towels, under the\r\ntrademark ‘JIVA’ on the websites of its hotels as well as through\r\ne-mails. Along with the pictorial presentation of the facilities available in the\r\nSpas, Respondent No.6 is providing a written description of variety of Spa\r\nservices and other therapeutic treatments available, including description of\r\nthe ayurvedic products used therein, thereby indirectly advertising the\r\nproducts, against which there is a restraint order, leading to a deceptive\r\nassociation of its ayurvedic and non-ayurvedic products to the trademark\r\n‘JIVA’. Such advertisements, according to the learned counsel, are in clear\r\nviolation of the order dated 17.10.2006 read with order dated 30.05.2008\r\nand the assurance given by Respondent No.6 to the Court on 04.04.2016.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Mr. Mukul Rohatgi and Mr. Sandeep Sethi, learned Senior Counsels\r\nappearing on behalf of Respondents No. 1 to 5 and Respondent No.6\r\nrespectively, vehemently oppose the allegations made by the Petitioners. It\r\nis submitted that the undertaking given to the Court on 04.04.2016 is being\r\ncomplied with in letter and spirit and it is reiterated and reassured on behalf\r\nof the Respondents that they shall continue to do so and will not use the\r\nmark ‘JIVA’ in relation to the disputed goods or goods such as cosmetics,\r\nsoaps, ayurvedic/non-ayurvedic products and/or allied or cognate goods, as\r\nundertaken before the Court on 04.04.2016. It is further submitted that the\r\nDivision Bench had, vide order dated 30.05.2008, vacated the restraint order\r\ndated 17.10.2006 to the extent of use of the trademark ‘JIVA’ for the Spas\r\nrun by Respondent No.6 in its hotels and there is no restriction or restraint\r\nfrom advertising or marketing products using the trademark ‘JIVA’ related <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to running of the Spas or the products such as pillows, towels etc., used in\r\nrelation thereto. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Succinctly put, contention of the learned counsel for the Petitioners is\r\nthat Respondents are guilty of violating the orders of this Court, as they are\r\nadvertising and marketing on their websites and through e-mails, nonayurvedic products such as towels under the trademark ‘JIVA’. It is also the\r\ncontention that along with the pictorial representations of the non-ayurvedic\r\nproducts, Respondent No.6 also provides a written description of its various\r\nSpa services and a list or description of ayurvedic products and goods being\r\nused in various treatments, thereby deceptively associating its ayurvedic\r\nproducts under the trademark ‘JIVA’. The screenshots of the websites,\r\naccording to the Petitioners, clearly show advertisement of non-ayurvedic\r\nproducts in association with advertisement of therapies and Spa using\r\nsignature oils, etc. In my considered view, the contentions, as aforesaid, are\r\ndevoid of merit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">12. From a holistic reading of the aforesaid orders, it is evident that the\r\nDivision Bench had vacated the order dated 17.10.2006 to the extent it\r\nrestrained the Appellants therein from using the trademark ‘JIVA’ for their\r\nSpas run in their hotels, subject to certain conditions, which are incorporated\r\nin para 46(a) of the said order. Clearly, there was no restraint on any\r\nadvertisement or marketing with respect to running of the Spas, the services\r\nand facilities offered therein or articles such as pillows, towels,\r\nhandkerchiefs, etc. related to the Spas, under the trademark ‘JIVA’.\r\nRestraint order by the learned Single Judge, on offering for sale/use of the\r\nayurvedic products under the trademark ‘JIVA’, as confirmed by the\r\nDivision Bench in para 46(b) of the order, cannot be extended to running of\r\nthe Spas and the articles used therein, which is evident from a plain and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">conjoint reading of paras 46(a) and 46(b) of the order dated 30.05.2008.\r\nReading of para 17 of the order dated 04.04.2016, as extracted above,\r\nfortifies that Respondents were permitted to use the mark ‘JIVA’ in respect\r\nof the Spas, run by the Respondents in their hotels as well as in relation to\r\npillows, towels, handkerchiefs and other articles related to the Spas. It is on\r\nthis understanding that the Court had disposed of the contempt petition on\r\n04.04.2016, upon being satisfied with the explanation tendered by the\r\nRespondents and recording their assurance to comply with the Court orders.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13. Perusal of the documents, on which the Petitioners have predicated\r\ntheir allegations of contempt, annexed with the present petition, reflects that\r\nRespondents have only advertised facilities and services rendered in their\r\nSpas along with pictures of the articles used in relation thereto. Pictorial\r\npresentations indicate that Respondents have only given descriptions of the\r\nvarious therapies, Spa treatments etc. available at their Spas along with the\r\nbenefits that flow out of the said treatments. Albeit the pictures in the\r\ne-mails and on the websites showcase certain products, however, the mark\r\n‘JIVA’ is only reflected on the towels. The bottles alleged to be the\r\ninfringing products do not contain any label or description so as to even\r\nremotely indicate or suggest that any ayurvedic or non-ayurvedic products\r\nunder the trademark ‘JIVA’ are being advertised or marketed, in violation of\r\nthe orders of the Court, as alleged by the Petitioners. It is significant to note\r\nthat each of the articles depicted in the pictures are those which are related\r\nto the Spas, particularly, the towels, and fall within the window of permitted\r\nuser, by virtue of the order of the Division Bench and statement given to the\r\nCourt on behalf of Respondent No.6, on 04.04.2016. Petitioners, by their\r\narguments and relying on the documents annexed to the present petition, are </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">wanting this Court to interpret the orders of the Court to read that the\r\nRespondents were restrained from marketing/advertising the products used\r\nin relation to the services rendered in the Spas. Firstly, this Court is unable\r\nto find any such restraint in the order passed by the Division Bench in para\r\n46(a) of the order dated 30.05.2008 and secondly, as noted above, the\r\nRespondents are, in fact, not advertising or selling ayurvedic or non\r\nayurvedic products for any other purpose, through the advertisements on\r\ntheir websites or the e-mails, as alleged by the Petitioners.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>14. The power vested in the High Court to punish for contempt is a very\r\nspecial and drastic power and needs to be exercised with great care and\r\ncaution, as held in various judgments. It is equally settled that while\r\nexercising the contempt jurisdiction, Court cannot travel beyond the four\r\ncorners of the orders, alleged to be violated or read into the order what is not\r\nexplicitly directed or restrained. A Petitioner approaching the Court alleging\r\ncontempt, cannot call upon the Court, in a contempt jurisdiction, to interpret\r\nthe order differently from the manner in which it reads and only those\r\ndirections which are plainly self-evident have to be taken into account to\r\ndetermine the violation or disobedience. It bears repetition to state that this\r\nCourt is unable to read any explicit or even implied direction/restraint in any\r\nof the orders, referred to and relied upon by the Petitioners which restrained\r\nthe Respondents from marketing, advertising the articles used in relation to\r\ntheir Spas.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. For all the aforesaid reasons, no contempt is made out.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. Contempt petition is, accordingly, dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0623258a3e3dffabeb638ce395624ed0.png', 'c56d8bf6565aa0687fc2d8b33ff65880.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-31', 1, '', '', '2022-05-30 18:42:45', '2022-05-31 10:24:26'),
(1745, 'exLxyrIL81tcLuU0XVqcvVXpR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Aggrieved person can seek interim maintenance before the Magistrate under DV Act while also seeking a permanent maintenance under Section 125 Cr.P.C. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>SH Jagmohan Kashya AP Vs Govt. of NCT of Delhi and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.M.C. 2269 of 2020 decided on 27 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Asha Menon.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The petitioners and respondent No.2 are husband and wife.\r\nMultifarious litigation is going on between them, one before the learned\r\nMM under the Protection of Women from Domestic Violence Act, 2005\r\n(DV) Act and the other before the learned Family Court under Section 125\r\nCr.P.C. The present petition has been preferred against the orders dated\r\n30th January, 2020 passed by the learned ASJ, Saket Court in an\r\napplication preferred by the respondent No.2, u/s 5 Limitation Act against\r\nthe order of the learned MM, dated 29th September, 2014 condoning a\r\ndelay of three years and ninety-nine days in filing an appeal against the\r\nsaid order</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. It is the contention of Mr. Ashish Upadhyay, the learned counsel for\r\nthe petitioner, that there was no valid explanation offered for this delay in\r\nfiling the appeal and therefore, the condonation of an inordinate,\r\nunreasonably long period, without just cause, was erroneous and had\r\ncaused miscarriage of justice. According to the learned counsel for the\r\npetitioner, the explanation offered by the respondent No.2 for the delay\r\nwas lack of funds to pursue the appeal and disinclination to engage with\r\nthe Legal Services Authority for legal assistance, and that the\r\nconsequences of this indecision must fall on the respondent No.2 and not\r\non the petitioner. It is further submitted that the respondent No.2 was\r\nearning well from chit fund schemes and was not bereft of funds. Thus, the\r\nreasons given to seek the condonation of delay were bogus and misleading.\r\nAccordingly, it was prayed that the impugned order be set aside</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. It was submitted that the learned MM, vide its order dated 29th\r\nSeptember, 2014 decided the application for grant of interim maintenance\r\nunder Section 23 of the D.V. Act, granting maintenance @ Rs.4,000/- to\r\neach of the minor children but had granted no maintenance to the\r\nrespondent No.2. Learned counsel submits that at that point of time the\r\napplication filed by the respondent no.2 under Section 125 Cr.P.C. being\r\nM. No.158/2012 was pending and she was advised that she could seek\r\nmaintenance from the Family Court. As a result, she did not file an appeal\r\nat that time. Subsequently, the learned Family Court vide order dated 8th\r\nJanuary, 2018 observed that the Family Court would not re-adjudicate the\r\nissue of interim maintenance since it was declined by the learned MM. But\r\nthat order preserved her rights to challenge the orders of the learned MM\r\nby an application seeking condonation of delay. Thus, too it was contended\r\nthat there was no error in the impugned order.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">7. I have heard the submissions of both counsel and have perused the\r\nmaterial on record, as well as the cited judgments. This appears to be a\r\ncase where different avenues for relief has caused enough confusion,\r\nwhich both, the Family Court as well as the learned ASJ, have tried to sort </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">out. The D.V. Act is, without doubt a piece of welfare legislation, to\r\nprotect the interests of women in a domestic relationship and shared\r\nhousehold, against not just physical abuse but also emotional and financial\r\nabuse. The learned ASJ was, therefore, right in dealing with the\r\ncondonation application in that perspective and not choosing to dismiss the\r\nappeal on procedural technicalities. It is yet to be seen by the learned\r\nAppellate Court whether the denial of maintenance by the learned MM was\r\njustified on the ground that the respondent No.2 had adequate means.\r\nTherefore, this Court is reluctant to comment on the claim of the petitioner\r\nthat the respondent No.2 was earning from chit fund business.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. As has been held by the Supreme Court in Oriental Aroma\r\nChemical Industries Limited(supra), the law of limitation was founded on\r\npublic policy but so is the D.V. Act. Both the enactments, therefore, have\r\nto be balanced out. No doubt, inordinate delay would vest certain rights in\r\nthe opposite party but when it comes to the question of maintenance and\r\nwelfare of family members protected by the D.V. Act, there can be no\r\nvesting of such rights that would result in the divesting of rights assured by\r\na special piece of legislation. It is not as if the respondent No.2 had\r\nresorted to dilatory tactics or a leisurely time taken to file the appeal,\r\nintended to harass the petitioner. Rather, she continued to pursue her right\r\nto maintenance before the learned Family Court under Section 125 of the\r\nCr.P.C. The right to claim maintenance under the DV Act and those u/s\r\n125 Cr.P.C. are not mutually exclusive, i.e., the aggrieved person can seek\r\ninterim maintenance before the learned Magistrate while also seeking a\r\npermanent maintenance under Section 125 Cr.P.C. The only caveat is that\r\nmaintenance granted by one court will be factored in by the other court <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">before granting or refusing maintenance.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>9. The courts have always held that “sufficient cause” under Section 5\r\nof the Limitation Act, 1963 was elastic enough to be applied by the courts\r\nin a meaningful manner, which subserved justice. The duration of delay\r\nwould not be determinative of the merits of the explanation. The facts, as\r\nbrought as the explanation for delay, and the intent of the party seeking\r\ncondonation as evidenced from the circumstances, would guide the court in\r\nthe exercise of its discretion to condone the delay in family matters.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. It is settled law that under Section 482 Cr.P.C, this Court will not act\r\nas a court of appeal. It will be only if perversity or non-application of mind\r\nis disclosed in the impugned order or the impugned order results in a grave\r\nmiscarriage of justice, that the court would interfere with it in exercise of\r\nthese powers. The present case does not disclose any such circumstance.\r\nBeing devoid of merit, it is accordingly dismissed alongwith the pending\r\napplication.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5a72a4e7bd4bd55ff3cbddf200c45837.png', 'cea859dcb9ce00f9936223a2fa1fc99a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-01', 1, '', '', '2022-05-30 18:56:30', '2022-06-01 08:35:31'),
(1746, 'kGl1K5AxSljOL6Uk6oN6fMQeO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Donoghue v Stevenson - (The Snail and the Ginger Beer case) ', '<p><b>Donoghue v Stevenson [1932] AC 562<br>May 26th 1932<br>Lord Buckmaster\r\n<br>Lord Atkin\r\n<br>Lord Tomlin\r\n<br>Lord Thankerton\r\n<br>Lord MacMillan</b></p><p><b><span style=\"background-color: rgb(255, 255, 0);\">Brief summary of the facts. </span>The appellant, Ms Donoghue, purchased and drank a bottle of ginger-beer which was manufactured by the respondent, Stevenson. Ms Donoghue poured some ginger-beer into her glass. She drank some before her friend poured the remainder of the drink into her glass and found a decomposing snail! Ms Donoghue suffered shock and severe Gastroenteritis. The appellant argued that as the ginger-beer was manufactured by the respondent, and thus he had a duty to enforce a system to prevent snails from ending up in bottles. It was also his duty to provide an efficient system of inspecting the bottles prior to use. The respondent did not believe that he owed such a duty to the appellant.</b></p><p><b>Findings.: The judges found that there was a duty of care owed to the appellant as the respondent should have foreseen that his actions would impact the consumer of his products.&nbsp;or “By Scottish and English law alike, the manufacturer of an article of food, medicine or the like, sold by him to a distributor in circumstances, which prevents the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under a legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health.”<br></b></p><p><b><span style=\"background-color: rgb(255, 255, 0);\">Lord Atkin’s </span>Duty of Care Page 580: At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of “culpa,” is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. [Nonetheless,] acts or omissions, which any moral code would censure, cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise, which limit the range of complainants and the extent of their remedy.&nbsp;</b></p><p><b>The Neighbour Principle The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, ‘Who is my neighbour?’ receives a restricted reply. You must take reasonable care to avoid acts or omissions, which you can&nbsp;reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons, who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.</b></p><p><b><span style=\"background-color: rgb(255, 255, 0);\">Lord Macmillan: </span>Duty of Care. Now I have no hesitation in affirming that a person, who for gain engages in the business of manufacturing articles of food and drink intended for consumption by members of the public… [However,] in the form in which he issues them is under a duty to take care in the manufacture of these articles. That duty, in my opinion, he owes to those whom he intends to consume his products. He manufactures his commodities for human consumption; he intends and contemplates that they shall be consumed. By reason of that very fact, he places himself in a relationship with all the potential consumers of his commodities… [A relationship,] which he assumes and desires for his own ends [, and] imposes upon him a duty to take care to avoid injuring them. He owes them a duty not to convert by his own carelessness an article which he issues to them as wholesome and innocent into an article, which is dangerous to life and health.&nbsp;It is sometimes said that liability can only arise where a reasonable man would have foreseen and could have avoided the consequences of his act or omission. In the present case the respondent, when he manufactured his ginger-beer, had directly in contemplation that it would be consumed by members of the public. Can it be said that he could not be expected as a&nbsp;reasonable man to foresee that if he conducted his process of manufacture carelessly, he might injure those whom he expected and desired to consume his ginger-beer? The possibility of injury so arising [, which] seems to me in no sense so remote as to excuse him from foreseeing it. Suppose that a baker, through carelessness, allows a large quantity of arsenic to be mixed with a batch of his bread, with the result that those who subsequently eat it are poisoned. [Could] he be heard to say that he owed no duty to the consumers of his bread to take care that it was free from poison, and that, as he did not know that any poison had got into it … [? Could he say that] his only liability was for breach of warranty under his contract of sale to those, who actually bought the poisoned bread from him?</b></p><p><b>I read this passage rather as a note of warning that the standard of care exacted in human dealings must not be pitched too high than as giving any countenance to the view that negligence may be exhibited with impunity. It must always be a question of circumstances whether the carelessness amounts to negligence, and whether the injury is not too remote from the carelessness. I can readily conceive that where a manufacturer has parted with his product and it has passed into other hands… [I]t may well be exposed to vicissitudes which may render it defective or noxious, for which the manufacturer could not in any view be held to be to blame. It may be a good general rule to regard responsibility as ceasing when control ceases. So, also, where between the manufacturer and the user there is interposed a party, who has the means and opportunity of examining the manufacturer’s product before he re-issues it to the actual user. But where, as in the present case, the article of consumption is so prepared as to be intended to reach the consumer in the condition in which it leaves the manufacturer, and the manufacturer takes steps to ensure this by sealing or otherwise closing the container…</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">[For purpose of ensuring that] the contents cannot be tampered with, I regard his control as remaining effective until the article reaches the consumer and the container is opened by him. The intervention of any exterior agency is intended to be excluded, and was in fact in the present case excluded. It is doubtful whether in such a case there is any redress against the retailer: Gordon v. M’Hardy. (6 F. 210).</b></p><p><b>The burden of proof must always be upon the injured party to establish that the defect which caused the injury was present in the article, when it left the hands of the party whom he sues… [To say t]hat the defect was occasioned by the carelessness of that party, and that the circumstances are such as to cast upon the defender a duty to take care not to injure the pursuer. There is no presumption of negligence in such a case as the present, nor is there any justification for applying the maxim, res ipsa loquitur. Negligence must be both averred and proved. The appellant accepts this burden of proof, and in my opinion she is entitled to have an opportunity of discharging it, if she can. I am accordingly of opinion that this appeal should be allowed, the judgment of the Second Division of the Court of Session reversed, and the judgment of the Lord Ordinary restored.<br></b></p><p><b><br></b></p><p><b><br><br><br></b><br></p>', '3fc101d4a08950fb6f559c0a49e8401e.JPG', 'bae07201ab9703ef6d1afdd5ff0a3865.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-30', 1, '', '', '2022-05-30 19:29:50', '2022-05-30 19:29:50'),
(1747, 'SBtJxlOSZxWXzx2Rq5LUxZrIV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Though equal opportunity in public employment a constitutional mandate, appointment cannot be claimed as a matter of absolute right. Madras High Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>I. Thanaseelvi Mary and others Vs The Chairman and Managing Director Tamil Nadu Electricity Geneartion and Distribution Corporation and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WP 13321 of 2022 an others decided on 25 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.M. Subramaniam.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The learned Senior Counsel appearing on behalf of the writ\r\npetitioners mainly contended that the petitioners, pursuant to the\r\nnotification issued in Notification No.1 of 2016 dated 28.02.2016,\r\nparticipated in the process of selection for appointment to the post of Field\r\nAssistant (Trainee). However, they did not fall within the zone of\r\nconsideration and were not appointed. Subsequently, thousands of\r\nvacancies in the cadre of Field Assistant arose and the respondents have not\r\ninitiated any action to fill up those posts by providing an opportunity to the\r\npersons who have participated in the selection during the year 2016.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The learned Senior Counsel articulated by stating that, several\r\nGangmen were appointed in the TANGEDCO, who were all utilized to\r\nperform the duties of the Field Assistant and several accidents occurred and\r\nthe concerns raised in this regard are not addressed by the competent\r\nauthorities nor redressed. Thus, the actions of the respondents are not <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">condonable and they are bound to consider all the candidates for\r\nappointment to the post of Field Assistants, more specifically, with\r\nreference to the selection conducted during the year 2016.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. The learned Senior Counsel drew the attention of this Court with\r\nreference to the news published and the information provided regarding\r\nelectrocution occurred due to the irregular actions of the respondents in\r\nallotting the Gangmen to perform the duties attached to the post of Field\r\nAssistant. These Gangmen are not qualified to perform the duties in the live\r\nelectric wires. Contrary to the job responsibilities alloted to these Gangmen,\r\nthey are made to perform other duties, which resulted in accidents.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5. The learned Senior Counsel drew the attention of this Court to the\r\nAffidavit filed by the respondents before the High Court that they will not\r\nengage the Gangmen for breakdown and other technical works. When such\r\nan affidavit is filed before the High Court, the said affidavit is to be\r\nhonoured by the respondents. But they are going on engaging these\r\nGangmen for performing the duties and responsibilities attached to the post\r\nof wiremen, electricians, etc., which is a greater public concern and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">therefore, the case of the writ petitioners are to be considered for\r\nappointment to the post of Field Assistant (Trainee).\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. The learned counsel appearing for the respondents objected the\r\ncontentions raised by the petitioners by stating that the petitioners were not\r\nwithin the zone of consideration in respect of selection of the year 2016 and\r\nthe selected candidates numbering 900 were already appointed pursuant to\r\nthe Notification No.1 of 2016 dated 28.02.2016. Thereafter, another\r\nnotification was issued on 19.03.2020 for filing up 2,900 vacancies in the\r\npost of Field Assistant and the process of selection was discontinued on\r\naccount of Covid-19 situation. Recently, the Government enacted Act 14 of\r\n2022 and accordingly, the Tamil Nadu Public Service Commission has to\r\nrecruit the candidates for appointment to the post of Field Assistant. Thus,\r\nthe Board cannot recruit immediately and they have to approach the Tamil\r\nNadu Public Service Commission for the purpose of selecting eligible\r\ncandidates for appointment to the post of Field Assistant. As far as the writ\r\npetitioners are concerned, they participated in the process of selection and\r\nas per their ranking, they were not falling within the zone of consideration\r\nand accordingly, the selected 900 candidates were appointed and therefore, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the writ petitions now filed after a lapse of six years is liable to be rejected.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. This Court is of the considered opinion that appointment can never\r\nbe claimed as a matter of absolute right and appointments are to be made\r\nstrictly in accordance with the recruitment rules in force. Equal\r\nopportunities in public employment is the Constitutional mandate. Thus,\r\nwhenever a decision is taken for recruitment, the competent authorities are\r\nbound to follow the recruitment rules in force by providing equal\r\nopportunities to all the candidates who all are aspiring for securing public\r\nemployment. Now, the process of selection to the post of Field Assistant is\r\nto be conducted by the Tamil Nadu Public Service Commission. The\r\nselection of the year 2016 cannot be considered now after a lapse of six\r\nyears, more specifically, for the purpose of issuing a direction to appoint the\r\nwrit petitioners as Field Assistants. That apart, the petitioners were not\r\nselected and appointed pursuant to their participation during the year 2016.\r\nThus, the writ petitioners have not established any right for the purpose of\r\ngranting the relief of appointment to the post of Field Assistant, as\r\nappointments are to be made in accordance with the recruitment rules in\r\nforce. The writ petitioners were not within the zone of consideration during\r\nthe year 2016 and the selected 900 persons were appointed and thereafter, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">no recruitment was conducted for the purpose of filling up the post of Field\r\nAssistant </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. It is needless to state that, public institutions are expected to act in\r\naccordance with law in such circumstances where the Gangmen are utilized\r\nto perform the duties of wiremen, electricians, etc. The concerns raised by\r\nthe learned Senior counsel is on public interest.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. The petitioners are at liberty to participate in the process of\r\nselection for appointment to the post of Field Assistant, if any notification is\r\nissued by the competent selection authorities. With this liberty, these writ\r\npetitions stand dismissed. No costs. Consequently, connected Writ\r\nMiscellaneous Petitions are closed. </b></span></p>', 'bad8bdcbbd97790928c402dc7b926a9d.jpeg', 'a8f24676d6b3d4020a4a28cb7c7dfe45.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-31', 1, '', '', '2022-05-30 19:36:15', '2022-05-31 22:26:25');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1748, '6sB79ozLzArIOpMwxV4alMPRY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'In a proceeding of pre-emption, save and except in any remote possible case, question of title over any deed duly executed and registered cannot be adjudicated. Calcutta High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ratan Chandra Sarkar Vs Kushkanta Sarkar and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>C.O. 903 of 2005 decided on 2 September 2016.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jutice Mira Dara Sheko. <o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b>3. Mr. Roy representing the petitioner/appellant/pre-emptee opposite of the mis.\r\npre-emption case assailed of the judgement of the appellate court on the grounds that\r\nlearned appellate court failed to consider that the pre-emption case ought to have been\r\nfailed for unidenticality of the case plot since in the deed no. 10590 dated 20th July,\r\n1977 on the basis of which the opposite party/respondent/pre-emptor/petitioner of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">pre-emption case claimed pre-emption in respect of the property mentioned in the\r\nschedule of the application as co-sharer and adjoining land order does not bear the\r\nnumber of the impugned case plot no.1203 of khatian no.31, and the number of the plot\r\nis not matching with the R.S. Khatian no. 95/1 submitted by the opposite party\r\nwherefrom also there is unidenticality in the name of the opposite party, where it was\r\nrecorded as Kush Chandra Ghosh whereas the name of the opposite party is Kush\r\nKanta Sarkar. Further submitted that Parul Bala Barman by purchase from whom the\r\nopposite party claimed to have become co-sharer had no saleable right at that relevant\r\ntime. Further argued that since learned Appellate Court declined to affirm the order of\r\npre-emption on the ground of vicinage but accepted the order of the learned Trial Judge\r\nallowing pre-emption on the ground of co-sharership, the object of pre-emption would\r\nbe frustrated.</span></b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b>4. Mr. Bhattacharya in his turn submitted that since either before learned Trial\r\nJudge by filing written statement or before First Appellate Court in the memo of appeal\r\nor even in the application before this court any ground on identifiability of the property\r\nsought to be pre-empted was never questioned, and so that point would not be allowed\r\nto be agitated afresh in argument only before this revisional court. The court in\r\nexercising the jurisdiction under article 227 of the Constitution of India in a supervisory\r\nnature would see whether the decision making process was directed in right direction or <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not. Drawing my attention to the defence taken by the petitioner and also the relevant\r\npart of the evidence on the record including the observations of both the courts in the\r\njudgement submitted that the impugned judgement having no sufferance from\r\nperversity or illegality, the said application should be dismissed. Points for\r\ndetermination arose before this Court as follows :-</span></b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(a) Whether the point on unidenticality of the plot in question as urged by Mr.\r\nRoy should be adjudicated in the revisional jurisdiction.</b></span></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(b) Whether the impugned judgement of the Appellate Court suffers from\r\nillegality or perverseness to make interference.\r\n</b></span></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5. To attend the points raised by Mr. Roy, on verification of the written statement\r\nsubmitted before the learned Trial Court as also observed by learned trial Judge in the\r\norder dated 15.7.2003 for Misc Case No. 14 of 1995 for pre-emption I find that the only\r\ndefence was ventilated as a bargadar in respect of the property sought to be preempted. Learned Trial Judge, in view of that stand of the petitioner, had taken step to\r\nobtain report under section 21(3) of the West Bengal Land Reforms Act from the\r\nconcerned Revenue Officer appointed under section 18(1) of the Act, and on the basis\r\nof the report learned Trial Judge held “the opposite party no.1 is not a bargadar under\r\nO.P. no.2 in respect of the disputed land. Therefore, the contention of the O.Ps that the\r\nO.P. No.1 is a bargadar is also not acceptable in this case.” The other defence was\r\ndenial of co-sharership of the opposite party of the pre-emptor. During course of\r\nevidence I find no legal evidence to demolish that the deeds by which Parul Bala\r\nBarman had transferred was ever declared by any competent court as null and void. To\r\nget lawful corroboration that Parul Bala Barman had saleable right at the relevant time,\r\nlearned Trial Court took note of exhibit ‘ka’ and exhibit ‘kha’ exhibited on the side of the\r\npre-emptee relying on which learned Trial Judge held, “I do not find any materials which </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">have declared that the exhibits were null and void. I think until and unless the validity of\r\nthese two exhibits subsist it operates as a good piece of evidence to establish the cosharership of the petitioner.”\r\n</span></b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. It is obvious that in a proceeding of pre-emption save and except in any\r\nremote possible case any question of title over any deed duly executed and registered\r\nordinarily is not adjudicated. Because in a case of pre-emption subject-matter is only\r\nwhether the right of pre-emption is available to the pre-emptor or not on the grounds as\r\nenvisaged under section 8 of the West Bengal Land Reforms Act. It would be\r\nabsolutely risk of the pre-emptor to opt for pre-emption of the property so transferred\r\nprovided he or she is either co-sharer or adjoining land owner and in that event had\r\nthere been any defect of any kind in the title passed by the impugned deed of transfer\r\nthe pre-emptor is entitled only to the portion to which he is legally entitled to and\r\nnothing more and nothing less since he/she cannot get any better title than passed by\r\nthe impugned deed of transfer. In turn the pre-emptee would be entitled to get the\r\nconsideration money along with statutory sum in respect of that pre-empted property\r\ndeposited by the pre-emptor before the learned Trial Judge as a condition precedent\r\nwhich only in the event of success in the pre-emption case the pre-emptee would be\r\nentitled to and in that event also there would be nothing more and nothing less. That is\r\nwhy a right of pre-emption is a weak right though it is exercisable only under the\r\nprovisions of a special statute. So in between no new right or new plea is entertainable\r\nbetween the pre-emptor and pre-emptee. To explicit myself, even if by the deed of\r\ntransfer nothing was transferred as it was submitted by Mr. Roy, nonetheless, the preemptor deposited the sum for pre-emption and gets success, the pre-emptee would not\r\nbe debarred to receive the money from the court in the event of success by the preemptor at whose choice the proceeding was initiated. The case of Smt. Renuka </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Chakraborty (supra) particularly from paragraph 8 it appears that in the reported case\r\nground of vicinage, was not taken by the pre-emptor to pre-empt the property, which is\r\nunlike the case in hand. However in the reported case the pre-emptor banked upon his\r\ncase on the ground of co-sharership which was not accepted by the learned Lower\r\nAppellate Court. But ultimately considering the facts and documents and since the right\r\nof pre-emption is a valuable right and the purpose behind it is to prevent fragmentations\r\nand sub-divisions of land chance was given to the pre-emptor to amend the preemption application on the ground of vicinage. Therefore, this decision is not applicable\r\nin the present case, since the instant case was filed on both the grounds.\r\n</span></b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. From the case of Samsul Haque & Ors. (supra) from where particularly\r\nparagraph 7 has been referred to, I find that this Court guided learned court below to\r\nconsider evidence adduced and also the subsequent events by invoking the provisions\r\nof the Code of Civil Procedure. Law is settled that subsequent events can be looked\r\ninto provided it is pleaded and evidence is adduced to that extent and had there been\r\nno consideration obviously there would be departure from rendering administration of\r\njustice. Though it is not argued at the bar but from paragraph 7 of the cited judgement it\r\nappears that in a case involving the question of pre-emption the basic question as to\r\nwhen a transfer was made complete, the date of completion of registration of the deed\r\nof transfer is relevant, and not the date of execution of the deed of transfer. From the\r\nimpugned deed dated 20th July, 1977 I find that the impugned deed of transfer was\r\ncopied in the volume of the registry office on 5.12.1977. Therefore, from that angle of\r\nvision the question of limitation also has been covered up. </b></span></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b>10. Though the revisional court is not supposed to look into the evidence, still\r\nconsidering the submissions advanced by Mr. Roy and the dispute over exercising the\r\nright of pre-emption on either side I have gone through the evidence copy of which has\r\nbeen supplied by Mr. Bhattacharya apart from the copies of the pleadings. I have\r\nalready indicated that in the written statement there is no defence to oppose the right of\r\npre-emption save and except claiming bargadarship which has been turned down in\r\nview of the report of the concerned Revenue Officer against which there was no\r\nstatutory appeal on record.\r\n</b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b><br></b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b>11. That apart either in the written statement or during the oral evidence there is\r\nno defence that the property sought to be pre-empted cannot be identifiable or\r\nalternatively the pre-emption case ought to have been suffered for vagueness in the\r\ndescription of the property. I do not find scope to allow the new point for adjudication,\r\nraised by Mr. Roy, that the impugned plot did not transpire in the deed no. 10590 of the\r\nopposite party. Rather I find that the schedule is identical with the description of the\r\nproperty mentioned in the impugned deed of transfer. Original deed no. 10590 is not on\r\nrecord. Mr. Bhattacharya also submitted that he is not in possession to produce the\r\nsame but from the second line of the first page of the certified copy of the deed no.\r\n10590 I find that the number of khatian no.31 is very much appearing there and in such\r\nhand written deed on the second page in the fourth and fifth line though it is mentioned <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sabek dag no.1190 hal 120 but on scrutiny of the very next fifth line and its first mark\r\ngives appearance of 3 which due to shortage of space at the end of 4th line of 2nd page\r\nwas put as the first letter in digit 3 (in Bengali) rather in the 5th line. I came to this finding\r\nfor two reasons that there was never challenge about the identicality of the property\r\ninvolved in the pre-emption case, and if ‘3’ of the beginning of 5th line of 2nd page of the\r\ncopy of deed no.10590 be not read tagging with its preceeding digit ‘120’ at the end of\r\n4th line, the sentence would not be carrying any sense.\r\n</span></b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. Though it is apparent from the record of the revisional proceeding that\r\nkhatian no.95/1 was produced where name of the tenant was described as Kush\r\nChandra Ghosh in support of Kushkanta Sarkar and sabek plot no.1203 and hal plot\r\nno.1288 are appearing there which is unmatched with the property in question, along\r\nthe name of the petitioner, but since there is no defence in the pleadings and in the\r\nevidence, I find that said khatian does not relate to the case property. But considering\r\nthe scope of Article 227 of the Constitution and taking note of the nature of the\r\nproceeding, which is a pre-emption case, I am not impressed to accept the contention\r\nof Mr. Roy to take any different view than of the findings of the learned First Appellate\r\nCourt made in the judgement under challenge by which the pre-emption has been\r\nallowed in favour of the opposite party only on the ground of co-sharership. Therefore,\r\nthe revisional application stands dismissed. The order of status quo as was passed by\r\nthis Court on 15.9.2005 stands vacated.</b></span></o:p></p>', 'dc44e4298bab9055fc2c0dba1e8392e2.jpeg', '59244b392cd69f97955a9d6516b0042a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-31', 1, '', '', '2022-05-30 19:57:07', '2022-05-31 16:51:54'),
(1749, '01y0RQwX5hQlZzLyDFgjjIXSC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Deprivation of property within the meaning of Article 300A, generally speaking, must take place for public purpose or public interest. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sayyed Ratanbhai Sayeed (Dead) through LRS and others VS Shirdi Nagar Panchayat and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 14016 of 2015 decided on 22 February 2016.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V. Gopala Gowda and Justice Amitava Roy.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The appellants, ostensibly small scale shopkeepers\r\nlocated in the vicinity of the internationally revered seat of\r\nShirdi Sai Baba at Shirdi Taluq, Rohata, District Ahmadnagar, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Maharashtra, face ouster from their sites, being entrapped in\r\nthe dictates of events since after their suit had been decreed\r\non compromise in the year 1979, securing their right of\r\nrehabilitation in the same locality.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The five appeals impeach the consecutive adjudications\r\nin sequential phases affirming the displacement of the\r\nappellants by acknowledging the mandate of the relevant Town\r\nPlanning and Municipal Laws and the overriding public\r\ninterest as perceived, their decree being construed to have\r\nbeen rendered inexecutable by the intervening developments.\r\nTheir possession, however remains protected by the interim\r\norder of status-quo granted by the High Court and continued\r\nin the instant proceedings subject to the liberty granted to the\r\nrespondent- Shirdi Nagar Panchayat (for short, hereinafter to\r\nbe referred to as “Nagar Panchayat/Municipal Council”) to\r\ntake any action in accordance with law, in connection with the\r\nwidening of the concerned road or removal of encroachments, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in terms of the order dated 13.12.2010 passed in SLP (C) Nos.\r\n27988 of 2010, 29683-29685 of 2010 and 28235 of 2010.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The genesis of the eventful factual background is\r\ntraceable to a one time small village named Shirdi with\r\nminuscule population. It rose to fame and eminence in view of\r\nthe shrine of Sage Sai Baba, viewed as a mortal incarnation of\r\nthe divine and with time became a pilgrimage centre of\r\nworldwide following. Having regard to the increasing number\r\nof devotees thronging for offering oblations, small shops grew\r\naround the temple, catering to the essentials of the\r\nworshippers for their offerings and also their refreshments and\r\nconveniences.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The plot involved contained in Survey No. 1, Hissa No. 1A\r\n1/1A/2B2 of Shirdi Takula Kopargaon, District Ahmednagar\r\nand situated near the Sanctum Sanctorum adjacent to Nagar <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Manmad Road, prior to 30.8.1974, vested in the then Shirdi\r\nGram Panchayat, which had leased out small parcels of land\r\ntherefrom to the appellants on rent for carrying on their\r\ntrades. The land was taken over by the State through the\r\nCircle Officer, Rahata on 30.8.1974 and as a consequence,\r\nthough the appellants were ready and willing to pay the rent,\r\nthe same was not collected from November, 1974. According\r\nto them, though by operation of law, they continued to be the\r\ntenants under the State Government and were entitled to\r\nretain their possession as before, it transpired with time, as\r\nvisualised by them, that joint efforts were on, of the official\r\nrespondents and the respondent- Shri Sai Baba Sansthan,\r\nShirdi (for short, hereinafter to be referred to as “Sansthan”) to\r\nforcibly evict them from their plot measuring 30 gunthas.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. Situated thus and being faced with imminent loss of their\r\nonly means of livelihood, the appellants instituted Regular\r\nCivil Suit No. 600 of 1976, in a representative capacity, on\r\nbehalf of 45 shopkeepers similarly situated, in the court of\r\nCivil Judge (Sr. Division), Ahmednagar seeking a declaration </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that they were lawful tenants of the parcels in their\r\noccupation and also for permanent injunction restraining the\r\ndefendants therein from taking over possession of the same,\r\notherwise than in due course of law. The State of\r\nMaharashtra (Revenue Department), Tehsildar, Kopargaon,\r\nDistrict Ahmednagar and Shri Saibaba Sansthan Shirdi,\r\nShirdi, Tal Kopargaon were impleaded as defendants. The\r\naverments made in the suit would demonstrate that the\r\nappellants then had been possessing premises of sizes ranging\r\nfrom 10’ x 7 ½’ and 12’ x 12’.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8. The suit eventually got decreed on compromise on\r\n20.8.1979. As the contents of the order recording the\r\ncompromise would attest, out of 101 shops mentioned in\r\nschedule ‘A\' of the suit, which had been taken over by the\r\nState Government from the Panchayat and handed over to the\r\nSansthan, 45 shops in occupation of the appellants were\r\nmarked in Schedule ‘B’, which in terms of the compromise\r\nwere to remain thereon. Qua the remaining 56 shops, the\r\nGovernment was to provide accommodation in the land in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Survey No. 170. Under the compromise, it was agreed that the\r\nSansthan would construct shops measuring 16’ x 11” (hotel)\r\nand 7’ x 11’ (flower, Prasad, photo etc.) in terms of the site\r\nplan that was accepted by the parties.\r\nThe Sansthan was to start the construction of the building on\r\nthe land in occupation of the appellants and to complete the\r\nsame within one year from taking possession thereof. It was\r\nagreed in categorical terms that during the period of\r\nconstruction, the 45 shops of the appellants would have to be\r\ntemporarily accommodated in the triangular plot located\r\ntowards the west of the proposed building as shown in the\r\nmap/plan. The Sansthan was obliged in terms of the\r\ncompromise deed, to accommodate the 45 shopkeepers in the\r\nsaid triangular plot before starting the construction of the\r\nproposed building. The appellants were also under an\r\nobligation to move to the said plot without any objection so as\r\nto enable the Sansthan to initiate the construction for the\r\nproposed building. As further agreed, 31 shopkeepers of the\r\nremaining 56 shops were to be accommodated in the existing\r\nequal number of shops constructed by the Sansthan in the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">land of Survey No. 170 on the western side of the Nagar\r\nKopargaon Road and that the allotment was to be made on the\r\nbasis of lottery. The remaining 25 shopkeepers, after such\r\nallotment, were also to be provided space in the land of the\r\nsame survey number by resorting to lottery. Under the\r\ncompromise, after the completion of the construction of the\r\nshops, the allotments were to be made by lottery system to the\r\n45 shopkeepers i.e. the appellants. The triangular space in\r\nwhich the appellants were to be temporarily rehabilitated was\r\nclearly identified by the parties. The rate of rent to be paid by\r\nthem and the other stipulations pertaining to the continuing\r\nlease were also enumerated in the compromise. Resultantly, a\r\ndecree was passed by the trial court in the same terms on\r\n20.8.1979. The said decree has since remain unchallenged\r\nand is thus final and binding on the parties.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. Years that rolled by thereafter witnessed a passive and\r\ninert disposition of both the parties, visibly reconciled to the\r\nexisting and continuing state of affairs. Undisputedly, the\r\nSansthan did neither arrange for the accommodation of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appellants in the triangular plot as agreed upon nor did take\r\nany initiative for the construction of the shopping complex at\r\nthe site occupied by them. It was as late as on 19.2.1990,\r\nthat the Sansthan did file an execution petition before the trial\r\ncourt alleging that the appellants/decree-holders had not\r\nhanded over the suit site to it to enable the constructional\r\nactivities. The appellants too, in response, filed an execution\r\npetition being R.D. No. 5 of 1990, accusing the respondents of\r\ntheir negligent and irresponsible inaction and failure to comply\r\nwith the decree.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. While the matter rested at that, a “Development Plan” of\r\nShirdi was sanctioned by Notification No. D.P. Shirdi/TPVIV/7334 dated 15.12.1992 of the Director of Town Planning,\r\nMaharashtra State, Pune (hereinafter referred to as the\r\ndevelopment plan) and enforced it on and from 25.2.1993.\r\nThereby an area of 30 gunthas identified as site No. 13 in\r\nSurvey No. 1 (as involved in the instant proceedings) was\r\nshown to be reserved for garden. As the records testify, by\r\nNotification No. TPS-1695/996/CR-83/97/UD-9 dated </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">27.3.2003 of the Urban Development Department,\r\nGovernment of Maharashtra, this 30 gunthas of land in site\r\nNo. 13 was bifurcated into two equal parts, northern half\r\nmeasuring 15 gunthas, shown reserved for “Garden” as site\r\nNo. 13A and the remaining southern half of 15 gunthas shown\r\nas reserved for ”Shopping Centre” as site No. 13B. The\r\nnotification mentioned that the modification was in terms of\r\nthe proposal submitted by the Nagar Panchayat which had\r\nsince been upgraded as Municipal Council by the State\r\nGazette Notification dated 16.6.1999. The Notification also\r\nclarified that the Nagar Panchayat in laying such proposal,\r\nhad complied with the formalities to this effect as stipulated by\r\nthe Maharashtra Regional and Town Planning Act, 1966 (for\r\nshort, hereinafter to be referred to as “Act 1966”) and was\r\napproved by the Director of Town Planning, Maharashtra\r\nState, Pune. In terms of this reorientation, the appellants\r\nwere in occupation of plot No. 13A, as referred to in the above\r\nNotification.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. In the meantime, at the instance of the Nagar Panchayat,\r\nthe shops constructed by it on the government land, Survey\r\nNo. 170 were demolished. Consequently, the arrangement of\r\nadjusting 31 shopkeepers out of 56 batch did not fructify. The\r\nothers were also not allotted any open plot by drawing lots as\r\nwas contemplated in the compromise decree. As the flow of\r\nevents would testify, the Executing Court on 19.12.2003\r\ndirected maintenance of status-quo of the subject matter of\r\nthe execution proceedings in view of the ongoing demolition\r\ndrive resorted to by the State and the apprehension expressed\r\nby the appellants to suffer the same fate. Eventually, the\r\nExecuting Court by order dated 21.5.2004 rendered in RD No.\r\n5 of 1990, held that the compromise decree was binding and\r\nexecutable, the facts in the interregnum notwithstanding and\r\nthat the defendants/judgment debtors were bound to provide\r\ntemporary accommodation to the appellants till completion of\r\nthe construction work in the suit land and consequently\r\nrestrained them i.e. the defendants/judgment debtors from\r\nremoving or demolishing the shops of the appellants till their <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">temporary adjustment in the triangular plot in terms of the\r\ndecree.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. This view was taken notwithstanding the plea on behalf\r\nof the defendants/judgment debtors, that in the face of the\r\ndevelopment plan and also the proposed widening of the\r\nadjacent Palkhi Road within the limits of the Nagar Panchayat,\r\nfor which a process was afoot for acquisition of land and the\r\noverall developmental activities in the area to meet the heavy\r\nrush of devotees, their convenience and safety, the decree had\r\nbecome inexecutable with time.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>54. As noted hereinabove, the appellants have been\r\nconsistently held not to be encroachers or trespassers on the\r\nland in their occupation, they having been let in thereto by the\r\nerstwhile Gram Panchayat, the then owner thereof. The land\r\nhas since changed hands and is vested in the State\r\nGovernment. In our view, both the appellants and the\r\nrespondents/defendants have to share the blame of leaving the\r\ncompromise decree unexecuted for over a decade whereafter\r\nfresh rounds of confrontations surfaced leading to the present <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">situation. Be that as it may, though there has been no\r\ndeterminance of the appellants’ right, title and interest in the\r\nland, except that they are admittedly in continuous possession\r\nsince the year 1970 and carrying on their business there,\r\nunderstandably, over the years, they have settled themselves in\r\ntheir plots and are earning their livelihood from the income of\r\nthe business dealings. Though the build up of facts, since the\r\ncompromise decree cannot be discarded, the contemplated\r\nmeasures of the respondents, to clear the area of the\r\nencroachments in public interest and for its overall\r\ndevelopment, would result in the displacement of the\r\nappellants as a compelling necessity. As a corollary, they have\r\nto be essentially rehabilitated or adequately compensated\r\nbearing in mind, the impact of the passage of time on the\r\nrelevant perspectives since the date of the compromise decree.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>55. The emerging situation is one where private interest is\r\npitted against public interest. The notion of public interest\r\nsynonymises collective welfare of the people and public\r\ninstitutions and is generally informed with the dictates of\r\npublic trust doctrine – res communious i.e. by everyone in</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>common. Perceptionally health, law and order, peace, security\r\nand a clean environment are some of the areas of public and\r\ncollective good where private rights being in conflict therewith\r\nhas to take a back seat. In the words of Cicero “the good of the\r\npeople in the chief law”.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>58. Judicial solicitude, in the context of the constitutional\r\nguarantee of equality and right to life, in the wake of removal <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of unauthorized encroachments from a public place and the\r\nconsequential forcible eviction of the occupants, presidingly\r\npervades the sentient and profound fabric of Olga Tellis &\r\nOthers vs. Bombay Municipal Corporation and Others\r\n(1985)3 SCC 545. Though upholding the contemplated action\r\nunder the statute involved for the removal of the petitioners\r\nthe pavements and basti slum dwellers of the Bombay city,\r\nthis Court defined the right to livelihood to be an integral\r\npart of the right to life. It was acknowledged that the\r\npetitioners therein on their eviction would be deprived of their\r\nlivelihood, albeit, their existence by way of encroachments on\r\nfootpaths and pavements, was strongly discountenanced. It\r\nwas empahsised that footpaths and pavements are public\r\nproperties, intended to serve the convenience of general public\r\nand are not laid for private use which, if permitted, would\r\nfrustrate the very object of carving out the same. That the\r\nmain reason for laying down footpaths and pavements was to\r\nenable the pedestrians go about their daily affairs with a\r\nreasonable measure of safety and security was emphasized.\r\nHolding that such a facility which had matured into a right of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the pedestrians, cannot be set at naught by allowing\r\nencroachments to be made on the pavements, the plea that\r\nthe claim of the pavement dwellers to put up construction on\r\nsuch pavements ought to be preferred, was assertively\r\nnegated. All these notwithstanding, it was ruled that the\r\nforcible eviction of such squatters therein, even if they are\r\nresettled in other sites, would totally disrupt the economic life\r\nof their households. In the textual facts, however, having\r\nnoted the proposed re-habilitation schemes/programmes of\r\nthe State Government, appropriate directions were issued.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">59. Apropos the scenario, where the petitioners therein had\r\nbeen denied compensation for their land, taken over by the\r\nrespondents and that too without initiating any process for\r\nacquiring the same in accordance with law, this Court in\r\nTukaram Kana Joshi and Others vs. Maharashtra\r\nIndustrial Development Corporation and Others (2013)1\r\nSCC 353, proclaimed in the context of Article 300A of the\r\nConstitution of India, that right to property was not only a\r\nconstitutional or statutory right but also a human right to be </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">construed in the realm of individual rights, such as right to\r\nhealth, livelihood, shelter, employment etc. It was reminisced\r\nthat in a welfare state, statutory authorities are bound not\r\nonly to pay adequate compensation but are also under a legal\r\nobligation to rehabilitate the persons displaced. The spectre of\r\nthe uprooted persons becoming vagabonds with anti-national\r\npropensities in case of non-fulfillment of such obligations by\r\nthe State, was portended with concern.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>60. As referred to hereinabove, inspite of the orders dated\r\n18.10.2010 and 26.11.2015, requiring the State in particular to\r\nascertain the availability of alternative sites of land to\r\naccommodate the appellants, no affirmative response has been\r\nlaid before this Court. To the contrary, as would be discernible\r\nfrom the affidavit filed by the State dated March 21, 2014, no\r\nvacant parcel of land is said to be available for the purpose in\r\nthe immediate vicinity of the land in occupation of the\r\nappellants. Though the appellants in their affidavit filed prior\r\nthereto had indicated five sites, in the face of the obdurate and\r\nrigid denial of the State about the feasibility thereof, any\r\ndirection to adjust them thereat is uncalled for.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n61. The consequence of the appellants being uprooted from\r\ntheir present sites of business, to reiterate would spell an\r\noverall dislocation in their lives. That many or all of them have\r\nbuildings elsewhere in the locality, assessed to municipal tax, in\r\nour comprehension, cannot fully neutralize this fallout. The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appellants have been conducting their business at the present\r\nsites for over 45 years and understandably over the time, have\r\nbuilt up the same with accompanying goodwill and reputation.\r\nTheir eviction would assuredly eventuate a human problem.\r\nNevertheless for the cause of paramount public interest, their\r\neviction is unavoidable.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">62. In this precipitable eventuality, a realistic balance of the\r\nattendant exigencies is the clarion call of justice. As adverted\r\nto hereinabove, even on the date of the conclusion of the\r\narguments, this Court had desired to be informed by the State\r\nabout the availability of alternative sites of land to\r\naccommodate the appellants. Inspite of assurances given, by\r\nits learned counsel, no information has been provided. In this\r\npremise, having regard to the ensuing consequences qua the\r\nappellants, we consider it appropriate to direct, to start with,\r\nthe State and its functionaries to undertake an exercise to\r\nidentify a suitable site to accommodate the appellants. We\r\nmake it clear that even if such a site is not available in the\r\nimmediate proximity of the land presently in their occupation, a </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sincere endeavour would be made to locate a plot as near as\r\npossible thereto. The District Administration in coordination\r\nwith the Sansthan and other authorities, as deemed necessary\r\nin law, would undertake the process. The appellants would also\r\ncooperate in the pursuit and would not delay the completion\r\nthereof.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">64. It is a matter of record and as has been noted by the\r\nHigh Court, the appellants occupy two categories of plots i.e.\r\n16’ x 11’ and 7’ x 11’, where trade/business is being carried on.\r\nThough monetary compensation, ipso facto, on a consideration\r\nof all attendant factors may not be an exact substitute of the\r\nbenefits presently enjoyed with the future prospects, we are of\r\nthe view that, having regard to the permissible ponderables\r\nand also the passage of time in between, a lump sum of Rs. 20\r\nlakhs and Rs. 15 lakhs each respectively for the bigger and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">smaller shops/stalls, as noted hereinabove would be a\r\nreasonable palliative to the appellants. We order accordingly. It\r\nis reiterated that the compensation, as indicated hereinabove,\r\nwould be payable to the appellants only if an alternative site is\r\nnot feasible. The entire process on both counts, however\r\nshould be completed within a period of six weeks herefrom.\r\nThe State Government and the Sansthan would bear the\r\namount of compensation, payable in equal shares and would\r\ndeposit the same in the Bombay High Court within the period of\r\nsix weeks aforementioned. The amount already deposited by\r\nthe Sansthan in terms of the High Court’s order, if not\r\nwithdrawn, shall be adjusted against this amount. The\r\nallotment of the new site/deposit, as directed, would be a\r\ncondition precedent for further action in terms of the impugned\r\nnotice. It is also ordered that on the deposit being made with\r\nthe High Court, the Registrar General of the High Court would\r\nmake suitable arrangements for disbursement thereof to the\r\nappellants as due to them, as expeditiously as possible,\r\nhowever on proper identification.  </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>65. The appeals are dismissed, however subject to the above\r\nterms. No costs.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5d8d986bb4e2c79b751ed8f812731490.jpeg', '295711661c2491da056e2cc578a0e4f6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-05-31', 1, '', '', '2022-05-30 20:49:53', '2022-05-31 08:30:11');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1751, '50MUoKFOUbkRlcXBnz3hhi6HM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'IBC. Holder of the Recovery Certificate issued under the Debt Recovery Act is also a financial creditor. He can initiate CIRP within a period of three years from the date of issuance of the Certificate. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kotak Mahindra Bank Limited Vs A. Balakrishnan and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 689 of 2021 decided on 30 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice L. Nageshwara Rao, Justice B.R. Gavai and Justice A.S. Bopanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. The present appeal challenges the judgment and order dated 24th November, 2020 passed by the learned National Company  Law  Appellate Tribunal, New Delhi (hereinafter referred to as “NCLAT”) in Company Appeal (AT) (Insolvency) No. 1406 of 2019, thereby allowing the appeal filed by the respondent no. 1 – Director and reversing the order dated 20th September, 2019 passed by the learned National Company Law Tribunal, Chennai (hereinafter referred to as “NCLT”), whereby the application filed by the appellant under Section 7 of the Insolvency and Bankruptcy Code, 2016 (“IBC” for short) was admitted.  The  learned  NCLAT while allowing the appeal held that the application filed by the appellant was time­barred and that issuance of Recovery Certificate would not trigger the right to sue.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>42. In this background, we will have to consider, as to whether a person, who holds a Recovery Certificate would be a financial creditor within the meaning of clause (7) of Section 5 of the IBC. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>43. A person to be entitled to be a “financial creditor” has to be owed a financial debt and would also include a person to whom such debt has been legally assigned or transferred to. Therefore, the only question that would be required to be considered is, as to whether a liability in respect of a claim arising out of a Recovery Certificate would be included within the meaning of the term “financial debt” as defined under clause (8) of Section 5 of the IBC.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>51. Applying these principles to clause (8) of Section 5 of the IBC, it could clearly be seen that the words “means a debt along with  interest,  if any, which is disbursed against the consideration for the time value of money” are followed by the words “and includes”. Thereafter various categories (a) to (i) have been mentioned.  It is clear that by employing the words “and includes”, the Legislature has only given instances, which could be included in the term “financial debt”.  However, the list is not exhaustive but inclusive.  The legislative intent could not have been to exclude a liability in respect of a “claim” arising out of a Recovery Certificate from the definition of the term “financial debt”, when such a liability in respect of a “claim” simpliciter would be included in the definition of the term “financial debt” </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>52. In any case, we have already discussed hereinabove that the trigger point for initiation of CIRP is default of claim. Default” is non­payment of debt by the debtor or the Corporate Debtor, which has become due and payable, as the case may be, a “debt” is a liability or obligation in respect of a claim which is due from any person, and a “claim” means a right to payment, whether such a right is reduced to judgment or not. It could thus be seen that unless there is a “claim”, which may or may not be reduced to any judgment, there would be no “debt” and consequently no “default” on non­payment of such a “debt”.  When the “claim” itself means a right to payment, whether such a right is reduced to a judgment or not, we find that if the contention of the respondents, that merely on a “claim” being fructified in a decree, the same would be outside the ambit of clause (8) of Section 5 of the IBC, is accepted, then it would be inconsistent with the plain language used in the IBC.  As already discussed hereinabove, the definition is inclusive and not exhaustive. Taking into consideration the object and purpose of the IBC, the legislature could never have intended to keep a debt, which is crystallized in the form of a decree, outside the ambit of clause (8) of Section 5 of the IBC.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>53. Having held that a liability in respect of a claim arising out of a Recovery Certificate would be a “financial debt” within the ambit of its definition under clause (8) of Section 5 of the IBC, as a natural corollary thereof, the holder of such Recovery Certificate would be a financial creditor within the meaning of clause (7) of Section 5 of the IBC. As such, such a “person” would be a “person” as provided under Section 6 of the IBC who would be entitled to initiate the CIRP. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>54. Insofar as the contention of the respondents with regard to clause (a) of sub­section (1) of Section 14 of the IBC is concerned, we do not find that the words used in clause (a) of sub­section (1) of Section 14 of the IBC could be read to mean that the decree­holder is not entitled to invoke the provisions of the IBC for initiation of CIRP.  A plain reading of said Section would clearly provide that once CIRP is initiated, there shall be prohibition for institution of suits  or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority.  The prohibition to institution of suit  or continuation of pending suits or proceedings including execution of decree would not mean that a decree­holder is also prohibited from initiating CIRP, if he is otherwise entitled to in law.  The effect would be that the applicant, who is a decree­holder, would himself be prohibited from executing the decree in his favour.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>65. It was found that the limitation period for filing a windingup petition would be three years and since the same was filed beyond the period of three years, it was liable to be dismissed. In the present case, undisputedly, the application under Section 7 of the IBC was filed within a period of three years from the date of issuance of the Recovery Certificate.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>71. It could be seen that sub­section (22) of Section 19 of the Debt Recovery Act empowers the Presiding Officer to issue a certificate of recovery along with the final order, under subsection (20), for payment of debt with interest. The certificate is given   for   the   purposes   of   recovery of the amount of debt specified in the certificate.  Sub­section (22A) of Section 19 of the Debt Recovery Act provides that any Recovery Certificate issued by the Presiding Officer under sub­section (22) shall be deemed to be decree or order of the Court for the purposes of initiation of winding up proceedings against a company, etc.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>78. In any case, when the Legislature itself has provided that any Recovery Certificate issued under sub­section (22) of Section 19 of the Debt Recovery Act will be deemed to be a decree or order of the Court for initiation of winding­ up proceedings, which proceedings are much severe in nature, it will be difficult to accept that the Legislature intended that such a Recovery Certificate could not be used for initiation of CIRP, which would enable the Corporate Debtor to continue as an on­going concern and, at the same time, pay the dues of the creditors to the maximum.  We, therefore, find no substance in the said submission.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>84. To conclude, we hold that a liability in respect of a claim arising out of a Recovery Certificate would be a “financial debt” within the  meaning of clause (8) of Section 5 of the IBC. Consequently, the holder of the Recovery Certificate would be a financial creditor within the meaning of clause (7) of Section 5 of the IBC. As such, the holder of such certificate would be entitled to initiate CIRP, if initiated within a period of three years from the date of issuance of the Recovery Certificate. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>85. We further  ind that the view taken by the two ­Judge Bench of this Court in the case of Dena Bank (supra) is correct in law and we affirm the same. We further find that in the facts of the present case, the application under Section 7 of the IBC was filed within a period of three years from the date on which the Recovery Certificate was issued.  As such, the application under Section 7 of the IBC was within  limitation and the learned NCLAT has erred in holding that it is barred by limitation. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>86. In the result, we pass the following judgment:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i) The appeal is allowed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd04256bf199ed81fea931625f40a776a.jpeg', 'b6acbb52acc605b526957acfcbd59ce8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-01', 1, '', '', '2022-05-31 17:36:43', '2022-06-01 06:27:31'),
(1752, 'CFHEVN1xC1z2K2d7AdGIzBCzL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Magistrate cannot condone delay in filing private complaint, under Section 473 Cr.P.C. without issuing notice to accused/respondent. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rakesh Kumar and others Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 9046 of 2016 decided on 19 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Natarajan.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Crl.P.No.9046/2016 is filed by petitioners-accused Nos.2 to 9 under Section 482 of Cr.P.C for quashing the criminal proceedings in C.C.No.202/2016 pending on the file of the Principal Civil Judge and JMFC, Mandya for the offence punishable under Sections 26-A punishable under Section 28-B of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as \'D.C. Act\').</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. Learned counsel appearing for the petitioners in all four petitions has strenuously contended that the alleged offences in all four cases are said to have been committed in the year 2008, but the complaint came to be filed after three years belatedly and the trial Court though allowed the delay application under Section 473 of Cr.P.C., but no notice has been issued to the petitioners before condoning the delay. Therefore, the order of the Magistrate for condoning the delay under Section 473 of Cr.P.C. is not sustainable and filing the complaint after three years for the offence punishable up to three years and as per Section 468 of Cr.P.C., three years is limitation and beyond three years, no Court can take cognizance for the offence punishable under any offence which is punishable from one year to three years. Therefore, taking cognizance is barred by the limitation and therefore, on that ground, learned counsel for the petitioners seeking for quashing the criminal proceedings in all four cases.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17. Having heard the arguments of learned counsel for the parties and on perusal of the records, the prosecution came to be launched against the petitioners under the D.C. Act for having found selling the drugs which were banned by the Central Government by its Notification i.e., VENTASOL-AX. Admittedly, accused No.9-M/s.Surien Pharmaceuticals who is the manufacturer at Pondicherry, they have obtained the license by his proprietor one Tamarai Kannan and accused No.2-M/s.Intra Life at Bengaluru are the distributor of the said drugs manufactured by accused No.1. Learned counsel for the petitioner has mainly challenged in respect of taking cognizance by the learned Magistrate against the petitioner on the ground No.1 that there was delay in lodging the complaint. The complaint itself is barred by limitation. The offence punishable against the petitioner is upto three years. Therefore, Section 28B of the D.C. Act is punishable with three years. Therefore, cognizance must have been taken within three years from the date of offence. Though the trial Court has condoned the delay as per Section 473 of Cr.P.C., but no notice was issued to the petitioner before condoning the delay. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. Learned counsel for the petitioners has relied upon the judgment of the Hon\'ble Supreme Court in this regard in the case of P.K. Choudhury stated supra, in the similar situation, the Hon\'ble Supreme Court has held that before condoning the delay, the accused is entitled to get an opportunity of being heard before the delay could be condoned. The same view was taken by the Bombay High Court in the case of Jethmal Himmatmal Jain  stated  supra, where it has been held that the Magistrate was required to be satisfied it was also necessary for the Magistrate to be satisfied after giving an opportunity for the accused of being heard. The same view was taken by the Madhya Pradesh High Court in the case of Earnest Company Indore and others stated supra that before condoning the delay under Section 473 of Cr.P.C., the accused shall be heard on the application. The Delhi High Court also in a recent judgment in the case of  Sanofi  India Limited stated supra has taken a similar view. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. On considering the facts and circumstances of the case, admittedly the learned Magistrate has condoned the delay in three cases i.e., in C.C.Nos.202/2016, 1821/2015 and 1459/2015, but in Crl.P.No.9047/2016 challenged in respect of C.C.No.1459/2015, the learned Magistrate has not condoned the delay in filing the complaint and also not taken any cognizance, but has simply issued the summons to the accused persons. Absolutely, the order sheet of the trial Court in all four cases clearly reveals that the learned Magistrate before condoning the delay under Section 473 of Cr.P.C., and no notice was issued to the accused/petitioners while condoning the delay. In another case i.e., C.C.No.1459/2015, even the delay was not condoned and even the cognizance was also not taken and simply issued notice. Therefore, in my view, taking cognizance against the petitioners in all four cases by the learned Magistrate is liable to be set aside and the matter is required to be remanded back for giving an opportunity for the petitioners-accused for filing or raising their objection on the delay application and thereafter, the Magistrate shall have to pass an order by application of mind satisfying the delay caused to the complainant in filing the complaint. Though the learned High Court Government Pleader argued that all the documents were seized by the CBI and vested with the CBI and they have given the documents only after three years, therefore, there was delay in filing the complaint. Whatever may be the reason, that has to be considered by the Magistrate only after giving an opportunity to the accused persons while condoning the delay, otherwise for taking cognizance, there is a bar under Section 468 of Cr.P.C. Therefore, the contention of earned High Court Government Pleader is not sustainable. Accordingly, the taking cognizance by the Magistrate in all the four cases is liable to be set aside.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. The another contention raised by the learned counsel for the petitioners is that except the manufacturer, the dealers and others are not liable for prosecution as per Section 19(3) of the D.C. Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21. On bare reading of the provision, it says that a person, not being manufacturer of a drug or cosmetic or his agent for the distribution there of, shall not be liable for contravention of Section 18 of the D.C.Act, if he proves, the provision reveals that except the manufacturer and distributors, others required to prove the criteria of Section 19(3)(a)(b)(c) stated above which is applicable to the retailer or the pharmacists, but the manufacturer and distributor cannot take shelter under  Section 19(3) of  the D.C. Act. As per Section 19, the manufacturer can take  the plea in respect of the test analysis. Therefore, the petitioners are the manufacturers and distributors of the VENTASOL-AX drugs. If at all, any defence available to them as per Section 19(3)(a)(b)(c), it has to be reverse burden on the accused to prove that they have purchased from duly manufacturer or distributor or the ignorance of the banned drugs or any contravention of the provisions of that Section and the drugs which was in possession was properly stored and remain in the same that as when he acquired it. Therefore, this ground is available to the accused persons only during the trial and they can take defence during the trial. Therefore, that ground is not available to the petitioners under Section 482 of Cr.P.C. Therefore, on that ground, the criminal proceedings cannot be quashed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25. In view of my reasons in respect of point No.1- on the ground of delay, all the four petitions are liable to be allowed-in-part. Accordingly, all four criminal petitions are allowed-in-part. Taking cognizance by the Magistrate in all four cases and issuing notice to the accused persons as well as condoning delay in filing the complaint under Section 473 of Cr.P.C. in three cases are hereby set aside and the matter is remanded back to the Magistrate for giving an opportunity to the petitioners being heard under Section 473 of Cr.P.C. application and pass an appropriate order for condoning the delay in all four cases, if it is satisfactorily explained by the complainant and thereafter, the trial court can proceed in accordance with law.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd10a49640ea4964d9824dee5c6dcabf0.jpeg', '40469177275b8108d6cd4810392d58b4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-01', 1, '', '', '2022-05-31 17:55:53', '2022-06-01 13:57:01'),
(1753, 'NDm2GhRVXibKt8zOhZnYk8WAs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Fixing of fee for patent applications is a right vested in the Government. Reduction of fee cannot be given retrospective effect by the Court. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Agrivida Inc Vs Union of India and the Controller General of Patents.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. (C) IPD 84 of 2021 decided on 23 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Prathiba M. Singh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The present petition has been preferred by the Petitioner challenging\r\nthe Office Circular No. 2 of 2010, dated 12th January, 2010 (hereinafter,\r\n“Impugned Circular”) issued by the Controller General of Patents, Designs\r\nand Trade Marks. The Petitioner herein regularly files patent applications for\r\ngene sequences before the Indian Patent Office. For the said purpose, the\r\nPetitioner was liable to pay official fee on the basis of the total number of\r\npages in the application, including sequence listings, which run into\r\nthousands of pages.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. It is submitted on behalf of the Petitioner that in the case of patent\r\napplications containing gene sequences, the applications/specifications runs\r\ninto thousands of pages in certain cases, owing to the large number of\r\nclaims. According to the Petitioner, the official fee which was being\r\ndemanded by the Indian Patent Office was completely prohibitive for\r\nApplicants who intend to file patent applications for gene sequences. It is\r\nfurther submitted that the Petitioner had no remedy even to file an\r\napplication under protest on account of the prohibitive fee, and hence, the\r\nPetitioner could not lodge the said two applications.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Mr. Choudhry, ld. Counsel for the Petitioner submits that the said fee\r\nstructure is also contrary to the PCT Regulation 5.2; Section 707 of the\r\nAdministrative Instructions issued under the Patent Cooperation Treaty.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. Heard ld. Counsels for the parties. The present is a case which has\r\nclearly demonstrated how the filing of a writ petition has had a positive\r\nimpact on highlighting a major issue in respect of official fee for patent\r\napplications for gene sequences. At the time when the First Schedule to the\r\nPatent Rules, 2003 may have been originally enacted, there was no separate\r\nofficial fee which was prescribed in respect of gene sequences. The sheer\r\nquantum of pages in patent applications for gene sequences may not even\r\nhave been in contemplation at the time when the official fee was originally\r\nfixed. The present writ petition highlighted this fact before the Government\r\nof India, and thereafter, the Patent (Amendment) Rules, 2016 have been\r\nnotified, wherein the fee structure has been rationalised.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. In terms of Rule 20(3)(a) read with 20(4)(i) of the Patent Rules, 2003,\r\nonce a PCT application is filed, the maximum time limit, during which the\r\nApplicant in respect of an international application designating India, can\r\npay the prescribed national fee and other fees to the Patent Office, is thirty\r\none months.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. Further, Rule 22 of the Patent Rules, 2003 provides the consequence\r\nof non-compliance with the requirements as set out in Rule 20.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. When a PCT application does not enter the National Phase in India\r\nwithin the prescribed time limit, the subject matter of the said application <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">having been published internationally, would fall into public domain. The\r\nconsequences of accepting the prayer of the Petitioner would, in effect, be\r\nthat the subject matter of the two applications of the Petitioner which did not\r\nenter the National Phase in India may have fallen into public domain, which\r\nwould have to be reversed. The same would be impermissible. While being\r\nsuccessful in its endeavour to highlight the prohibitive nature of the official\r\nfee that was earlier prevalent, the Petitioner has been unable to enter the\r\nNational Phase in India in respect of two of its applications being\r\nPCT/US2010/055669 and PCT/US2010/055751, the deadline for filing in\r\nIndia in respect of which is stated to be 6th June, 2012, as per the petition.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>22. The newly amended reduced official fee having been notified under\r\nthe Patent (Amendment) Rules, 2016 with effect from 16th May, 2016\r\nwithout any retrospective effect, cannot be retrospectively applied by this\r\nCourt to give benefit to the Petitioner. The said two patent applications can\r\nno longer be filed in India, due to the prevalent facts and circumstances, as\r\nalso, the applicable official fee which could not be paid by the Petitioner\r\nwithin the prescribed time limit. The Petitioner always had the option of\r\napproaching the Court within the time period prescribed seeking waiver of\r\nofficial fees or could have deposited the official fees under protest and\r\nsought refund later. However, the Petitioner chose to file only one of the\r\nthree PCT applications with the prevalent official fees, which was thus a\r\nconscious decision.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">23. In the opinion of this Court, the fixing of fee for patent applications\r\nbeing a right vested in the Government, no retrospective benefit having been\r\ngiven in the amendment of 2016, the Court cannot, give benefit to the\r\nPetitioner to file its patent applications with the reduced fee applicable as on </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">date. The said patent applications being PCT/US2010/055669 and\r\nPCT/US2010/055751, having not entered the National Phase in India, the\r\nrelief as sought in the clause (b) of the prayer clause of the amended\r\npetition, is not tenable, and is not liable to be granted.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>24. Insofar as the Impugned Circular is concerned, the fee having now\r\nbeen rationalised by the Government of India itself, the said prayer as sought\r\nin the clause (a) of the prayer clause of the amended petition no longer\r\nsurvives and has become infructuous.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>25. Accordingly, the present petition is disposed of in the above terms.\r\nAll pending applications are also disposed of.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3e8c12d38d17183e00b091e3f7dd464c.jpeg', 'fb8137df2f3450a9f72e0231bf0cd1bb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-04', 1, '', '', '2022-05-31 18:19:48', '2022-06-04 12:27:17'),
(1754, 'X1SEhcmrlDqQlfsRCijnl4E3a', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land acquisition. In deciding whether acquisition is for public or not, prima facie, the Government is the best judge. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>State of Haryana Vs Eros City Developers Pvt Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 354 of 2016 decided on 19 January 2016.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Rajan Gogoi and Justice Prafulla C. Pant.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. These appeals are directed against judgment and order\r\ndated 21.01.2008, passed by the High Court of Punjab and\r\nHaryana in Civil Writ Petition No. 10611 of 2004 whereby said\r\nCourt has quashed the notifications dated 08.10.2003 and\r\n07.05.2004 issued under Sections 4 and 6 of Land Acquisition\r\nAct, 1894, respectively, by the State of Haryana regarding\r\nacquisition of land measuring 129 kanals 14 marlas in village\r\nLakarpur, District Faridabad. The High Court has further\r\nquashed the Award dated 05.05.2006, passed by respondent\r\nNo. 4 in respect of land owned by respondent No. 1 Eros City\r\nDevelopers Pvt. Ltd., which was acquired through the above\r\nmentioned notifications.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Succinctly stated total area of 172 kanals 19 marlas\r\nsituated in village Lakharpur Tehsil Ballabgarh in District\r\nFaridabad was proposed to be acquired by the State of\r\nHaryana through notification dated 08.10.2003 issued under\r\nSection 4 of Land Acquisition Act, 1894 out of which 129\r\nkanals 14 marlas (for short subject land) belonged to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respondent no.1 M/s. Eros City Developers Pvt. Ltd. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The subject land was stated to have been acquired for the\r\npurpose of expansion and systematic development of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Surajkund Tourist Complex which included development of\r\nparking area adjacent to the Surajkund Tourist Complex near\r\nannual Surajkund Fair.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. Admittedly, earlier in 1992 an attempt was made to\r\nacquire the same land but the acquisition proceedings were\r\ndropped after this court passed order dated 10.05.1996 in WP\r\n(C) No. 4677 of 1985 i.e., M.C. Mehta’s case restraining the\r\nconstructions in the area. Meanwhile in 1993 contesting\r\nrespondent appears to have purchased the land indicated\r\nabove. It is in 1998, the order dated 10.05.1996 said to have\r\nbeen modified, and Municipal Corporation Faridabad and the\r\nState Government were directed to consider the plan of hotel\r\nproject submitted by the respondent No.1 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5. Learned counsel for the appellant State submitted that\r\nannual Surajkund Mela, is held every year in February in\r\nFaridabad District, and has become a regular feature of\r\ninternational fame. As such, there was need to develop\r\nSurajkund Tourist Complex by acquiring land adjoining to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Surajkund Mela ground in Faridabad. It is also pointed out\r\nthat significance of Surajkund fair was noticed by this Court\r\nin W.P. (C) No. 4677 of 1985 (M.C. Mehta vs. Union of India\r\nand ors.) wherein effective directions were issued in the year\r\n1996 to protect and maintain the sanctity of the area. The\r\nacquisition of subject-land is thus not only in public interest\r\nbut also to maintain the integral development of the\r\nSurajkund Complex in a unified and planned manner. It is\r\ncontended that while quashing the notifications mentioned\r\nabove, the High Court has erred in not considering the public\r\ninterest and public purpose over private interest of the\r\nrespondent/writ petitioner, a private colonizer. The impugned\r\norder passed by the High Court has been assailed by the\r\nappellant, also on the ground that the equity doctrines of\r\npromissory estoppel and legitimate expectation were wrongly\r\napplied by the High Court in favour of respondent No. 1. It is\r\nstated that before issuance of notification under Section 6 of\r\nthe Land Acquisition Act, 1894 (for short “the Act”) objections\r\nfiled on behalf of respondent No. 1 under Section 5A of the Act </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">were duly considered by the authority concerned, and there\r\nwas no illegality in the acquisition.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. On the other hand, on behalf of respondent No. 1, Shri\r\nShyam Divan Senior Counsel contended that Government of\r\nHaryana which earlier attempted to acquire the same land in\r\nthe year 1992, itself dropped the acquisition proceedings as\r\nsuch it cannot be said that the land in question is genuinely\r\nrequired for any public purpose. The contesting respondent\r\nhas pleaded that the land in question was purchased by it in\r\nthe year 1993 with the object to construct a hotel complex of\r\ninternational standard. In the counter affidavit, it is stated\r\nthat the answering respondent got the permission for change\r\nof land use and submitted the plan for sanction from the\r\nMunicipal Corporation. It also obtained permission from\r\nPublic Works Department for construction of approach road to\r\nthe land. Even the Director, Tourism, Government of\r\nHaryana, had accorded approval for the hotel project of\r\nrespondent No. 1. However, the answering respondent was\r\nprevented from raising construction due to the restraint order </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dated 10.5.1996, passed by this Court in M.C. Mehta’s case\r\n(in W.P. (C) No. 4677 of 1985). Said order was modified on\r\n13.05.1998. On application filed by the answering\r\nrespondent, vide order dated 12.10.1998, this Court directed\r\nthe Municipal Corporation, Faridabad, and State Government\r\nto accept option plan A with regard to hotel project (ground\r\nplus four floors), submitted by it. It is submitted that there\r\nwas malice on the part of the State Government in acquiring\r\nthe land in question through the notification dated 08.10.2003\r\nissued under Section 4 of the Act. It is also pleaded that there\r\nwere overwhelming circumstances in favour of the answering\r\nrespondent to invoke doctrine of promissory estoppel, and that\r\nof legitimate expectation. In this connection, it is pointed out\r\nthat permission of change of land use was also granted in\r\nfavour of the answering respondent. Lastly, it is submitted\r\nthat the High Court has rightly quashed the notifications\r\nissued by the State Government for acquisition of the land\r\nowned by the answering respondent.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Clause (f) of Rule 26-D of the Punjab Scheduled Roads\r\nand Controlled Areas Restriction of Unregulated Development\r\nRules, 1965 (for short “1965 Rules”) requires the applicant\r\nseeking change of land use for construction to undertake to\r\nstart construction on the land within a period of six months\r\nand complete the construction within a period of two years\r\nfrom the date of order permitting the change of land use. It\r\nappears that no construction was done in terms of Clause (f) of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rule 26-D of 1965 Rules on the land in question, for which\r\nacquisition is quashed by the impugned order.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11. In State of Haryana and Others vs. Vinod Oil and\r\nGeneral Mills and Another (2014) 15 SCC 410, this Court has\r\nheld that permission for change of land use has no relevance\r\nwhile considering the validity of acquisition. It is further\r\nobserved in said case that there is no bar to the subsequent\r\nacquisition of a land, after the land was released from earlier\r\nacquisition.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. As far as the argument advanced on behalf of the\r\nrespondent relating to the promissory estoppel and legitimate\r\nexpectation is concerned, in Monnet Ispat and Energy\r\nLimited vs. Union of India and Others (2012) 11 SCC 1, this\r\nCourt while enumerating the principles relating to doctrine of\r\npromissory estoppel and legitimate expectation has clearly held\r\nthat the protection of legitimate expectation does not require\r\nthe fulfillment of the expectation where an overriding public\r\ninterest requires otherwise. In other words, personal benefit\r\nmust give way to public interest and the doctrine of legitimate\r\nexpectation cannot be invoked which would block public\r\ninterest for private benefit. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. In view of the principle of law laid down by this Court as\r\nabove, in our opinion the High Court has erred in quashing the\r\nacquisition of land in question, by applying doctrine of\r\npromissory estoppel and legitimate expectation, in the facts of\r\nthe present case. We have no hesitation in holding that the\r\npurpose i.e. for expansion and systematic development of\r\nSurajkund Tourist Complex, is a public purpose. It included\r\ndevelopment of parking area adjacent to Surajkund Tourist\r\nComplex near annual Surajkund Fair. We are of the view that\r\nthe High Court is incorrect in holding that the State has not\r\nacted bonafide, after 1992 acquisition proceedings were\r\ndropped. It is apparent from the record that earlier proceedings\r\nwere dropped in the light of orders passed in M.C. Mehta’s </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Case in the year 1996, restraining construction in the area,\r\nand after modification in the said order in the year 1998, the\r\nState took fresh decision to acquire the land for public purpose\r\nand there is no illegality in the same.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>16. Accordingly, both the appeals are allowed and impugned\r\njudgment and order dated 21.01.2008 passed by the High\r\nCourt in CWP No.10611 of 2004, is set aside. No order as to\r\ncosts.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9a632f1421242d0529793b06f4a14338.jpeg', '073a8f3ae89ce25669317c5ebcaedbe2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-01', 1, '', '', '2022-05-31 18:33:27', '2022-06-01 12:31:18');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1756, 'ZlD1aqZA5JrlbuBXWDDzANb0T', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Defamation. Onus of proving two ingredients; truth of the imputation and the publication of the imputation for the public good, is on the accused. Karnataka High Court reiterates.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>B.A. Harish Gowda Vs Ravi Kumar and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Revision Petition 175 of 2021 decided on 31 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. The factual matrix of the case of the complainant before the Trial Court is that the accused committed the offences punishable under Sections 499 and 500 of IPC as he had printed and published defamatory articles in Kannada Journal “Parivala Pathrike” owned by him and also invoked the offences punishable under Sections 4, 5, 13, 14 and 15 of the Press and Registration of Books Act, 1867 for having made false declaration before the District Magistrate in the bottom of the last page of journal about the place of printing the said journal. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Based on the complaint and sworn statement, the Trial Court took cognizance of the offence in respect of the PCR which is numbered as C.C.No.20643/2000 and summons was issued to the accused persons and accused No.1 appeared  before the Trial Court in response to the summons and in the order sheet, an indication was made on 21.04.2001 that accused Nos.1 and 2 are one and the same person and the same is not disputed. The accused, who has been secured before the Trial Court did not plead guilty and claimed to be tried for the offence punishable under Section 500 of IPC and Sections 13 and 14 of the Press and Registration of Books Act, 1867. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The complainant, in order to prove his case, examined himself as P.W.1 and also examined four witnesses as P.Ws.2 to 5 and got marked the documents as Exs.P1 to P29 to establish that the imputations made against him in the impugned articles were false, malicious and per-se defamatory and that the accused made false declaration before the District Magistrate with regard to the place of printing the journal. The accused, in order to prove his case, neither examined himself nor produced any documents.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. Being aggrieved by the judgment of conviction and sentence, the accused has filed an appeal in Crl.A.No.610/2002 before the Appellate Court and the same was allowed in part, confirming the judgment of conviction for the offence under Section 500 of IPC and set aside the judgment of conviction and sentence for the other offences. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. Being aggrieved by the judgment allowing the appeal in part, the accused had filed Crl.R.P.No.1045/2006 and the same was allowed vide order dated 15.07.2013 and set aside the order and remanded the matter directing the Trial Court to proceed with the matter from the stage of cross-examination of P.Ws.1 and 2. After remand, inspite of sufficient opportunity being given to him by the Trial Court, the witness P.W.3 was not cross-examined but, P.W.2 was cross-examined and witness summons sent to P.W.3 could not be served on him as his whereabouts could not be traced. Hence, the complainant gave up his evidence. After the remand also, the accused did not examine any witness and also not produced any document and once again, the matter was heard and vide judgment dated 30.08.2017, the Trial Court convicted the accused and sentenced him for a period of 6 months for the offence under Section 500 of IPC and imposed fine of Rs.25,000/-. In default to pay the  fine amount, the accused shall undergo simple imprisonment for a period of 3 months. Hence, both the complainant as well as  the accused have filed an appeal. The complainant, in his appeal in Crl.A.No.1660/2017, sought for an order to enhance the sentence and the accused in Crl.A.No.1353/2017, questioned the conviction and sentence passed by the Trial Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>52. The Appellate Court, while considering the material on record, taken note of Section 499 of IPC i.e., defamation and its explanations in paragraph No.17 and thereafter, considered the evidence on record. The allegations made against the complainant are also mentioned in paragraph No.18 and particularly considered the document Ex.P2 and in paragraph No.21, the Appellate Court has also taken note of the title of the questioned article Ex.P2(c) and mentioned the headlines mentioned in the said article, wherein it is specifically mentioned that the complainant is a corrupt and also titled as “Harish Gowdana Pramanika Dandegalu and Dagalbaajithanagalu” and also taken note of line of cross-examination of P.W.1, wherein the line of defence is that the said article is published with good faith and for the benefit of the public.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>53. The Appellate Court also, having considered the principles laid down in the judgments referred by both the parties, observed in paragraph No.39 that the accused is a printer, publisher and writer of Parivala fortnightly newspaper magazine. But, the contention of the accused is that he did not have any intention, enmity or mensrea to commit the offence under Section 500 of IPC. It is also observed that the accused not led in any independent evidence to prove that the same is done with good faith and for the benefit of the public. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>54. When the P.W.1 reiterated the averments of the complaint as well as the contents of the article which is marked as Ex.P2, nothing worthwhile is elicited in his cross-examination and the accused also not led in any evidence to substantiate his contention when he did not dispute the article Ex.P2 and the Appellate Court also taken note of the evidence of P.Ws.4 and 5 which has been considered by the Trial Court and comes to the conclusion that the Trial Court has committed mistake in considering the same and however, observed that, it does not affect the case of the complainant and P.Ws.4 and 5 are examined only to prove the other offence and the same is not the subject matter of the petition. The Appellate Court also taken note of the admission given by P.W.2 with regard to the fact that he does not know as to whether the reputation of the complainant was damaged or not. However, considered the material that P.Ws.1 and 2 were cross-examined in length and when the complainant has substantiated that the article-Ex.P2 is per-se defamatory, the said allegation has not been substantiated by the accused and the onus of proving the same shifts on him when the complainant has substantiated as to the accusation made against the accused and imputations made in Ex.P2 is per-se defamatory and falls within the definition of Section 499 of IPC. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>55. The complainant also relied upon the evidence of P.W.2 to establish the loss/injury to the reputation of the complainant and so also the evidence of P.W.3, who has not been cross-examined, inspite of sufficient opportunity being given. The Appellate Court also, on re-appreciation of evidence available on record, taken note of the contents of the complaint and allegations made in the article-Ex.P2 and particularly in paragraph No.74 taken note of the fact that the accused circulated the questioned article in the Court premises on the date of the examination of the complainant and also taken note of the fact that the said article was printed and published to the extent of 40,000 copies in paragraph No.77 and also taken note of the conduct of the accused and the fact that the complaint was filed in the year 2000 invoking the offence under Section 500 of IPC and not assisted the Court in cross-examining the witnesses and also filed unnecessary applications before the Trial Court and ultimately, he did not lead any defence evidence. The Appellate Court has also taken note of enormous hardship, suffering, mental agony and financial loss over a very long period lasting nearly 17 years caused to the complainant to establish that false utterance is made against the complainant and also taken note of the conduct of the accused in paragraph Nos.87 and 88 and considered the material available on record and passed the detailed order.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>56. The very contention of the learned counsel for the accused in their petitions is that, both the Courts have committed an error in convicting him and sentencing him for a period of 6 months and to pay fine of Rs.25,000/-. The said contention cannot be accepted for the reason that, first of all, the accused has not disputed the very article and the fact that he is a printer and publisher and the same was published and the contents of Ex.P2 is also per-se defamatory.  Though  defence was taken in the cross-examination that the said article was published with good faith and for the benefit of the public good, in order to substantiate the same, no material is placed before the Court. Before publishing the said article, he ought to have made enquiry and he has also not placed any material as  to the source from which he received such information and the article has been published on the title the complainant is a corrupt and during the said time, admittedly, the complainant was the Director of Pre-University Board. It is also important to note that the complainant also substantiated his case that, in view of the said article, his reputation was spoiled and in order to substantiate the same, he also relied upon the evidence of P.Ws.2 and 3 and nothing worthwhile is elicited from the mouth of either P.W.1 or P.Ws.2 and 3. These are the aspects which have been considered by the Trial Court as well as the Appellate Court and the Appellate Court also discussed in detail the evidence available on record while re-appreciating the material on record.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>59. I have already pointed out that the scope of revision is very limited and in the revision, this Court can only examine whether the Trial Court and the Appellate Court have passed any perverse order and if no such perversity is found in the orders passed by both the Courts, revision cannot be entertained. With regard to legality and correctness of the order is concerned, nothing is found on record that both the Courts have committed an error.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>61. In the judgment of Subramanian Swamy’s case (supra), the Apex Court has held that the onus of proving these two ingredients, namely, truth of the imputation and the publication of the imputation for the public good, is on the accused and the same has not been discharged by the accused. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>62. When such being the case, I do not find any error committed by both the Courts in considering the material on record. Hence, it is not a fit case to exercise the revisional jurisdiction to set aside the judgment of the Trial Court as well as the Appellate Court in convicting the accused for the offence punishable under Section 500 of IPC.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">65. </font></span><font face=\"Calibri, sans-serif\">ORDER</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space: pre;\">	</span>The revision petition filed by the complainant for enhancement of sentence in Crl.R.P.No.175/2021 is dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>The revision petition filed by the accused in Crl.R.P.No.550/2020 is allowed setting aside the judgment of conviction and sentence passed by the LXVI Additional City Civil and Sessions Judge, Bengaluru in Crl.A.No.1353/2017 dated 07.07.2020 enhancing the sentence from 6 months to 9 months.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space:pre\">	</span>The revision filed by the accused in Crl.R.P.No.552/2020 questioning the conviction and sentence passed by the by the LXVI Additional City Civil and Sessions Judge, Bengaluru in Crl.A.No.1600/2017 dated 07.07.2020 confirming the conviction with a fine of Rs.10,000/-, in default of payment of fine amount, to undergo simple imprisonment for a period of 3 months is dismissed. The conviction passed by the V Additional CMM at Bengaluru in C.C.No.20643/2000 dated 30.08.2017 is confirmed i.e., the accused to undergo imprisonment for a period of 6 months and to pay fine of Rs.10,000/- is confirmed which is modified by the Appellate Court.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e167906f86b8dccb131a4fdc562064a3.jpeg', '913f357686829420282e9b1417052a52.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-02', 1, '', '', '2022-06-01 17:30:19', '2022-06-02 09:59:28'),
(1757, 'keU43VBerU0lkhB0fgkxGroXS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Anticipatory bail application is maintainable even if accused is outside the Country when the intention of the Police to arrest the accused on arrival is made out. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vijay Babu Vs State of Kerala and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>B.A. 3475 of 2022 decided on 31 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Bechu Kurian Thomas.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Petitioner seeks pre-arrest bail through this bail application. Petitioner\r\nalso seeks an interim protection from arrest pending consideration of\r\nthe bail application.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The learned Additional Director General of Prosecution,\r\nSri.Gracious Kuriakose, contended at the outset itself that petitioner is\r\nnot in the country, disentitling consideration of the application. He\r\nhowever submitted that notwithstanding the aforementioned\r\ndisentitlement, this Court may hear the bail application itself on\r\nmerits, instead of considering the present prayer for grant of an\r\ninterim protection.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The learned counsel for the petitioner, Sri.S.Rajeev, submitted\r\nthat the petitioner is arrayed as an accused in Crime No. 515 of 2022\r\nof the Ernakulam South Police Station alleging offence under 376(2)\r\n(n), 506 and section 323 of the Indian Penal Code 1860. The learned\r\nCounsel submitted that though petitioner is presently outside the\r\nCountry he is willing to come down to Kerala, within the jurisdiction\r\nof this Court and face investigation. However, due to the threat of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">immediate arrest raised by the investigation, he fears deprivation of\r\nhis liberty without getting an opportunity to have the application for\r\npre-arrest bail considered on merits. In such circumstances, petitioner\r\npleads for an interim protection from arrest.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. The learned counsel for the petitioner, further, submitted that\r\npetitioner had even booked his tickets to come down to India on\r\n30.05.2022, however, without the protection from arrest he feared\r\ndeprivation of his liberty from the airport itself, and therefore\r\npetitioner was compelled to postpone his travel. It was urged that\r\npetitioner is ready to be within the jurisdiction of this Court within 24\r\nhours if protection is granted.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5. Sri.Gracious Kuriakose, the learned Additional Director\r\nGeneral of Prosecution, on the other hand submitted that petitioner\r\nhad filed the bail application after fleeing the country and his\r\nintention was to remain outside the jurisdiction, elusive to the\r\ninvestigation. However, due to the steps initiated by the police for\r\nimpounding his passport and other lookout notices, petitioner has now\r\nchanged his stance and is expressing willingness to come within the\r\njurisdiction of this Court, which cannot be taken at its face value as a\r\nbonafide step. He invited the attention of the Court to the absence of\r\npleadings in the bail application relating to the whereabouts of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner. The learned Additional Director General of Prosecution,\r\nalso relied upon the decision of this Court in Souda Beevi v. Sub\r\nInspector of Police & Others 2011 (4) KLT 52, as well as S.M.Shaffi\r\nv. State of Kerala 2020 (4) KHC 510 and submitted that, petitioner\'s\r\npresence outside the country does not entitle him to maintain this very\r\napplication itself.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. On a consideration of the aforesaid contentions solely for the\r\npurpose of interim protection, I notice the decision in Sushila\r\nAggarwal and Others v. State (NCT of Delhi) and another [(2020) 5\r\nSCC 1], wherein a Constitution Bench of the Supreme Court had\r\nconsidered various principles relating to the grant of anticipatory bail.\r\nIt was observed that the paramount right of every individual protected\r\nunder Article 21 of the Constitution of India, can be deprived only by\r\nprocedure established by law and that Section 438 is one such\r\nprocedure which the legislature has enacted and that courts should\r\nlean against imposition of unnecessary restrictions on the scope of\r\nsection 438, especially when not imposed by the legislature.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Bearing in mind the aforesaid principles laid down by the\r\nSupreme Court, I am of the view that, for the present, merely because\r\nthe petitioner is outside the country, the same by itself cannot deprive\r\nhim of his right to have his application for anticipatory bail\r\nconsidered by this Court. The decision referred to in Souda Beevi\'s\r\ncase (supra) can be said to be impliedly overruled and decision in\r\nS.M.Shaffi\'s case (supra) did not take notice of the judgment in\r\nSushila Agarwal’s case and therefore, could be regarded as judgment\r\nsub silentio. However, I clarify that the above observations are made\r\nonly for considering the grant of interim protection from arrest.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Be that as it may, the essential requirement of every\r\ninvestigation is that the accused must be within its control for the\r\npurpose of carrying out an effective and fair investigation. It augurs\r\nwell in the interest of the investigation as well as for the victim that\r\nthe accused submits himself to the jurisdiction of the investigating\r\nteam. In the application filed as M.A.No.7/2022 it is asserted that the\r\npetitioner has booked his tickets for 01.06.2022. Petitioner has also\r\nproduced a copy of the confirmed ticket for travel from Dubai to\r\nKochi. Thus when the petitioner himself expresses his willingness to\r\ncome within the jurisdiction of this Court and the investigation team,\r\nbut expresses his apprehension of arrest from the Airport itself, I am <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the view that the said circumstance necessitates the grant of interim\r\nprotection from arrest, atleast for a limited period of time. I hasten to\r\nadd that the intention of the police to arrest the petitioner, from the\r\nAirport itself, was reflected in the arguments advanced by the learned\r\nAdditional General of Prosecution. Therefore the need for interim\r\nprotection sought for by the petitioner is justified.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>10. In view of the above, it is not only in the interest of the\r\npetitioner , but also in the interest of the victim as well as the\r\ninvestigation, that the petitioner be protected from arrest for a\r\nminimum period of time, to enable him to submit to the territorial\r\njurisdiction of this Court without further delay. Accordingly, I direct\r\nthe respondents not to arrest the petitioner for a limited period as\r\nmentioned below.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11. The respondents, including the Bureau of Immigration who\r\nhave been impleaded in this bail application are directed not to arrest\r\nthe petitioner till 02.06.2022, until this Court considers the case again.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. Petitioner shall, immediately on arrival in the country, appear\r\nbefore the investigating officer and mark his presence. The\r\ninvestigating officer will also be free to interrogate the petitioner after\r\nthe petitioner appears before him.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '55903d552a890bea0c97619eeb35ea68.jpeg', '92bec0f87d35762f839a16d4d05e8151.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-02', 1, '', '', '2022-06-01 18:14:22', '2022-06-02 07:54:53'),
(1758, 'OkwrflVDLeMRaj8VsNy6HlNEP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Limitation. Entries in the ledger/statement of accounts constitute a fresh cause of action and extends the period of limitation. Delhi High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>National Seeds Corporation Ltd Vs National Agro Seeds Corporation (India).<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>FAO(OS) (COMM) 69 of 2022 decided on 31 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Rajiv Shakdher and Justice Jasmeet Singh.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2.1 The State of Uttar Pradesh had floated various subsidy schemes such as\r\nscheme for popularization of cultivation of hybrid paddy in the State of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Uttar Pradesh. Under the schemes, farmers were eligible for distribution\r\nsubsidy at the rate of about 50 % of the seed costs and the Appellant\r\nwould receive the subsidy amount directly from the State Government.\r\nUnder these subsidy schemes, the seeds were to be supplied to the farmer,\r\nwhere 50% of the cost of seeds was to come from the farmer which was to\r\nbe received by the appellant through the dealers (respondent herein) and\r\nthe remaining 50% costs of the seed was the subsidy component which\r\nwas to be paid for by the State Government. The Appellant had\r\naccordingly entered into agreements with various dealers including the\r\nrespondent for implementation of the subsidy schemes.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2.2 The appellant was involved in selling the seeds to the farmers through its\r\ndealers. The beneficiary list of farmers was to be verified by the\r\nconcerned Local Agriculture Departmental Authority and then the claim\r\nfor subsidy amount was to be submitted to the State Agriculture\r\nDepartment along with verified beneficiary list for release of subsidy\r\namount by the State Government to the appellant.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2.3 With this objective in mind, the appellant and the respondent entered into\r\na Distributorship Agreement dated 24.10.2009, which was renewed by an\r\nAgreement dated 01.04.2010, which has been extended from time to time\r\non the same terms and conditions.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n2.4 As per the agreement, the respondent had agreed to sell certified seeds of\r\napproved varieties with subsidies at the retail price fixed by the appellant\r\nafter reducing the admissible amount of subsidy.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2.5 In consideration for the same, the appellant had agreed to provide a trade\r\ndiscount to the respondent. As per the terms and conditions of the\r\ndistributorship agreement, the respondent was also required to sell 25% of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the oil seeds and pulses and 30% of the wheat certified seeds to farmers\r\nfrom SC/ST category. In terms of its obligation contained in Clause 11 of\r\nthe agreement, the respondent was obliged to collect all records, cash\r\nmemos, registers and subsidized sale details in the approved format and\r\nsubmit the same to the Regional Office of the appellant after verification\r\nfrom the appropriate authority of the Agriculture Department.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>2.6 The respondent submitted that it had complied with all its obligations\r\nunder the agreement and had sold the seeds obtained from the appellant at\r\nthe discounted price. Accordingly, it claimed that it was entitled to trade\r\ndiscount. The respondent quantified the outstanding commission/ trade\r\ndiscount against the seeds distributed as on the date of filing of statement\r\nof claim at Rs. 1,46,40,005.02/-and further claimed interest.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2.7 Since the Appellant did not make the said payment and disputed the\r\namount, the Respondent herein invoked the arbitration clause in terms of\r\nclause 9 of the agreement dated 01.04.2010. The parties filed their\r\nrespective claims, counter-claims, lead evidence before the Arbitral\r\nTribunal of a sole arbitrator.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. That the appellant filed its objections under Section 34 of the Arbitration\r\nand Conciliation Act, 1996 and assailed the award essentially on four\r\ngrounds:-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Firstly, the decision of the Arbitral Tribunal to reject the Appellant?s\r\ncontention that the claims were barred by limitation, was ex facie\r\nerroneous. The respondent?s claim included claims for arrears of\r\ntrade discount in respect of seeds that were sold three years prior to\r\nthe filing of the Statement of Claims. He submitted before the single\r\njudge that it was clear that part of the claim was barred by limitation\r\nand, thus, was liable to be rejected. Further that the Arbitral Tribunal\r\nhad erroneously held that the amounts due to the respondent had\r\nbeen acknowledged by the Appellant and submitted that the</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Appellant had merely stated that it would pay the trade discount on\r\nreceipt of subsidy and the said statement could not be construed as\r\nan unequivocal acknowledgment of liability.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) Secondly, the Appellant submitted before the Single Judge that the\r\nArbitral Tribunal had misinterpreted Clause 8 of the Agreement to\r\ninfer that the Appellant was liable to pay the trade discount despite\r\nnon-receipt of subsidies from the State Government of Uttar Pradesh.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) Thirdly, the Appellant submitted before the Single Judge that the\r\ninterest awarded by the Arbitral Tribunal was excessive and harsh\r\nand thus, patently illegal. For this contention, the Appellant relied on\r\nthe decision of Jaiprakash Associates Ltd. Through Its Director v.\r\nTehri Hydero Development Corporation India Ltd. Through Its\r\nDirector: 2019 SCC OnLine SC 143.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iv) Lastly, it was contended that the Arbitral Tribunal had erred in\r\nrejecting the counter-claim on the ground that the Appellant had not\r\nestablished the same. He submitted that the Appellant had not\r\nreceived subsidies from the State Government, and it must be\r\npresumed that the same was on account of deficiency in the\r\ndocuments submitted by the respondent. He referred to Clause 11 of\r\nthe Agreement and submitted that the respondent was liable to\r\nfurnish the documents and therefore, the onus to establish that it has\r\ndone so was entirely on the respondent. He contended that the\r\nArbitral Tribunal had proceeded on an erroneous premise that the\r\nburden of proof in support of the counter-claim rested on the\r\nAppellant. He had raised a counter claim for an amount of Rs.\r\n7,68,96,959/- claiming that it had suffered losses in respect of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">seeds supplied by the respondent.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. A bare perusal of the aforesaid letters clearly shows that the appellant has\r\nclearly admitted the amounts due and payable to the respondent. There is\r\nnot a letter or document brought to our notice where the appellant has\r\ndenied payment of this commission or the amount. In view of this clear\r\nadmission, there is no doubt that commission is due and payable by the\r\nappellant to the respondent and hence, there is a clear acknowledgment of\r\na debt by the Appellant.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. The letters which we have already reproduced acknowledge the amounts\r\ndue and payable by the appellant to the respondent. The Appellant has\r\nadmitted the amounts due and payable to the respondent in its ledger/\r\nstatement of accounts, the said entries constitute a fresh cause of action\r\nand extends the period of limitation.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. It is important to note that the court, while deciding objections, cannot\r\nre-appreciate the evidence, or the documents. If the Arbitral Tribunal has\r\narrived at its findings on the basis of material placed before him,\r\nadmissibility of a document is an aspect which is within the exclusive\r\ndomain of the Arbitral Tribunal, and finding based thereupon should not\r\nbe interfered with lightly. That being the position, the findings of the\r\nArbitral Tribunal were rightly upheld by Single Judge. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. Furthermore, the Ld. Single Judge, as noted above has correctly stated\r\nthat the arguments of the Appellant are contradictory in nature. We are\r\nfirmly of the view that none of the claims of the respondent are barred by\r\nlimitation, in light of the discussion above and on account of Section 18\r\nof the Limitation Act and Section 25 of the Indian Contract Act.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. The next issue is whether the payment due and payable to the Respondent\r\ncan be dependent on the appellant receiving its share of subsidy from the\r\nState Government of Uttar Pradesh. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. A bare perusal of the said Clause clearly shows that it nowhere provides\r\nthat disbursal of subsidy to the respondent, is contingent on receipt of\r\nsubsidy by the appellant from the State Government of Uttar Pradesh. It is\r\nnot the case of the appellant that the respondent had breached any of its\r\nobligations to supply the seeds in terms of the distributorship agreement.\r\nThe same has also been correctly held by the Arbitral Tribunal and\r\nreaffirmed by the Single Judge.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. In this view of the matter, we find no reason to interfere in the judgment\r\ndated 05.01.2022 and consequently, the appeal is dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c1a9053f7e5232785c16c472c1faa5cc.png', '748681ff89eac70551eaad38e50286db.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-02', 1, '', '', '2022-06-01 18:31:25', '2022-06-02 16:04:56'),
(1759, 'hUTssX2KUyMj3sI5bcaLefNd2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Daksha Legal Monthly Digest - May 2022', '<p><b style=\"background-color: rgb(255, 255, 0);\">Please open the PDF and click on the link.&nbsp;</b></p>', '2aa5311f5c73558cb6c7f11d0a284449.JPG', 'ad2a1538e6030188506016bdd390639c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-01', 1, '', '', '2022-06-01 19:19:46', '2022-06-01 08:50:05');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1760, '19BMMo2vnTxIlTvSZyktbgp4J', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Grant of benefit by statutory authority inadvertently or by mistake to few persons does not create right to other similarly situated persons to claim such benefit. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Bangalore Development Authority and others Vs The Principal Secretary Revenue Department of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.A. 4121 of 2027 decided on 24 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Alok Aradhe and Justice J.M. Khazi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Facts giving rise to filing of this appeal in nutshell are that original respondent No.1 viz., Narayana Reddy said to be owner of an agricultural land bearing Sy.No.345 measuring 3 acres and 23 guntas situated at Banaswadi Village, K.R.Puram Hobli, Bangalore East Taluk. The aforesaid land as well as several other lands were required for formation of a layout between Banaswadi Road and Hennur Road commonly known as HRBR Layout. A preliminary notification dated 21.03.1977 was issued. Thereafter, a final notification was issued on 14.05.1980.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Admittedly, father of original petitioner viz., Sri.D.Venkataswamy Reddy had filed a writ petition viz., W.P.No.11976/1984 seeking to give effect to the resolution for de notification of the land.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Thereafter, the original petitioner viz., late Narayan Reddy again filed a writ petition viz., W.P.No.18196/2014, in which once again preliminary as well as final notifications dated 21.03.1977 and 14.05.1980 were challenged. Admittedly, the original writ petitioner in the aforesaid writ petition did not disclose the fact that his father had previously filed writ petitions viz., W.P.No.11976/1984 and W.P.No.14757/1986. The appellants also did not bring to the notice of the learned Single Judge the factum of filing two previous writ petitions by the father of the original writ petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The learned Single Judge by an order dated 26.02.2016 inter alia held that neither the award has been passed nor possession has been taken. It was further held that scheme was not substantially implemented as required under Section 27 of the Act within five years from the date of the final notification and therefore, the scheme has lapsed. It was further held that the contention that the writ petition filed by the original petitioner suffer from delay and laches is untenable as the scheme has lapsed. The impugned notifications dated 21.03.1977 and 14.05.1980 were quashed and the writ petition was allowed. In the aforesaid factual background, this appeal has been filed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. Learned Senior counsel for the appellant submitted that the original petitioner was guilty of suppression of facts and the writ petition filed by the original petitioner suffered from delay and laches. It is further submitted that the writ petition filed by the original petitioner was barred by res judicata as in the writ petition filed by the father of original petitioner, the validity of impugned notifications was upheld. It is also contended that the original petitioner cannot claim any benefit on the principle of negative equality and no legal right accrues to the original petitioner even if in some cases in which adverse orders have been passed against the appellants, it may not have preferred an appeal.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. On the other hand, learned counsel for respondents 1 (a) to (d) submitted that the earlier writ petitions filed by the father of the original petitioner did not pertain to Sy.No.345. It is further submitted that neither award has been passed by the authority nor possession of the land in question has been taken. It is also urged that order passed in W.P.No.9761/2015 passed in case of a similarly situate land has not been challenged. It is further submitted that the order passed by the learned Single Judge does not call for interference. In any case, the land owners are entitled to just and fair compensation.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. We have considered the rival submissions made on both sides and have perused the record. In the instant case, as stated supra, the preliminary notification was issued on 21.03.1977, whereas final notification was issued on 14.05.1980. The writ petition was filed after an inordinate delay of 34 years from the date of issuing the final notification, for which no explanation has been offered. It is trite law that discretionary jurisdiction to deal with a prayer for quashing the land acquisition proceeding, in a writ petition which suffers from inordinate delay and laches have to be exercised with great circumspection.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>However, in the instant case, no explanation has been offered by the original petitioner for filing a writ petition after an inordinate delay of 34 years. However, Single Judge has without assigning any cogent reason has held that the delay is immaterial as scheme in question has already lapsed. The aforesaid finding cannot be sustained and therefore, on this ground alone, the order passed by the learned Single Judge cannot be sustained. It is held that the writ petition filed by the original petitioner suffer from inordinate delay and laches.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. In the instant case, admittedly, the father of the original petitioner had filed the writ petition challenging the validity of preliminary and final notification dated 21.03.1977 and 14.05.1980 which was dismissed by learned Single Judge by an order dated 06.08.1986. Thus, the original petitioner who claims title in respect of property in question through his father is bound by the decision of previous writ petition and cannot be permitted to agitate the validity of the impugned notifications dated 21.03.1977 and 14.05.1980 again on the principle of res judicata Thus, the challenge to the aforesaid notification is barred by principles of res judicata. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12. The petitioner is guilty of suppression of material facts and has not approached the court with clean hands. Therefore, the discretionary jurisdiction under Article 226 of the Constitution of India, which is equitable and extraordinary cannot be exercised in favour of the original petitioner.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13. It is well settled in law that even if some similarly situate persons have been granted benefit inadvertently or by mistake, the same does not confer any legal right on the original petitioner to claim similar relief. Therefore, even if some land owners may have been granted the benefit, inadvertently by the authority, the same would not confer any legal right on the original petitioner to claim the similar benefit.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14. However, as has been fairly stated by learned Senior counsel for the appellant that respondents 1(a) to 1(d) are entitled to just and fair compensation. It is therefore, directed that the appellants shall take steps within a period of six weeks to determine the compensation payable to respondents 1(a) to 1(d) and shall make payment of the amount of compensation as is permissible in law.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>For the aforementioned reasons, the judgment passed by learned Single Judge is quashed and the appeal is accordingly disposed of.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd04f6ae204e82e6cd4b56b98e81aad13.JPG', '1ac11a04318577f9b25e6bc65eeccd42.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-03', 1, '', '', '2022-06-01 19:45:07', '2022-06-03 07:25:03'),
(1761, 'ijh1zEfwvSZ8Hvcy37qj5A8qI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Limitation to apply for delivery of possession by a purchaser of immovable property at a sale in execution of a decree is one year from the date when the sale becomes absolute. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>United Finance Corporation Vs M.S.M. Haneefa.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4204 of 2007 decided on 11 January 2017.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice R.K. Agarwal and Justice R. Banumathi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This appeal arises out of order passed by the High Court of\r\nKerala at Ernakulam allowing the revision in CRP No.894 of 2005 dated 2nd\r\nJanuary, 2006 and thereby dismissing the application filed by the appellant\r\nunder Order XXI Rule 95 C.P.C. on the ground that the application is\r\nbarred by limitation and declining direction for delivery of possession of the\r\nimmovable property purchased in the court auction sale to the appellant.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The appellant/Corporation-decree holder filed a suit for realisation of the\r\nsuit claim and the said suit was decreed for a sum of Rs.2,72,100/- along\r\nwith interest. In execution of the decree, the property of\r\nrespondent/judgment-debtor was auctioned on 27th October, 2001 and the\r\nsame was purchased by the appellant/decree-holder himself. The\r\nappellant/decree holder purchased schedule item No.2 property to an </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">extent of 1 acre and 50 cents comprised in Survey No.458/1 of Parassala\r\nVillage along with the building situated therein. The sale was made\r\nabsolute on 1st June, 2002. Sale certificate was issued to the appellant on\r\n17th March, 2003. In the meanwhile, the first respondent/judgment-debtor\r\nfiled an application to set aside the auction sale (Order XXI Rule 90 C.P.C.)\r\nand also another application for appointment of the Commissioner to value\r\nthe property. Both the applications came to be dismissed by the executing\r\ncourt. Being aggrieved by the order dismissing the Commissioner\'s\r\napplication (E.A.No.77/2002), the first respondent/judgment-debtor filed\r\nrevision before the High Court in C.R.P.No.2829/2002 in which the High\r\nCourt has granted stay of further proceedings in the execution petition.\r\nThe Civil Revision Petition came to be dismissed on 9th July, 2003.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. Thereafter, on 30th August, 2003, auction purchaser appellant filed\r\nan application under Order XXI Rule 95 C.P.C. for delivery of possession of\r\nthe immovable property purchased in the court auction sale. In the said\r\napplication by order dated 12th August, 2005, the executing court ordered\r\ndelivery of possession which was challenged by the judgment-debtor\r\nbefore the High Court in C.R.P.No.894/2005. By the impugned order dated\r\n2\r\nnd January, 2006, the High Court allowed the revision and dismissed the\r\napplication filed by the appellant under Order XXI Rule 95 CPC on the\r\nground that it is barred by limitation.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. Per contra, Mr. Basava Prabhu S. Patil, learned senior counsel\r\nappearing for the respondent submitted that as per the decision in Ganpat\r\n Singh (Dead) by LRs. vs. Kailash Shankar and Others (1987) 3 SCC\r\n146, an application filed by the auction purchaser under Order XXI Rule\r\n95 C.P.C. for delivery of possession of property would be covered by\r\nArticle 134 of the Limitation Act and in the present case limitation will start\r\nfrom 1st June, 2002 i.e. the date of confirmation of sale and hence the\r\napplication filed on 30th August, 2003 is beyond the period of limitation.\r\nPlacing reliance on Pattam Khader Khan vs. Pattam Sardar Khan and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Anr. (1996) 5 SCC 48, it was further contended that for filing application by\r\nthe auction purchaser for delivery of possession (under Order XXI Rule 95\r\nC.P.C.), issuance of sale certificate is not the sine qua non and therefore\r\nthe appellant cannot contend that the application filed on 30th August, 2003\r\nis within the period of limitation. The learned senior counsel further\r\nsubmitted that the High Court has noted the fact that the first\r\nrespondent/judgment-debtor has already deposited the entire amount and\r\nsince the decree-holder/appellant-Corporation itself is the auction\r\npurchaser, this is not a fit case warranting interference in exercise of\r\nextraordinary jurisdiction under Article 136 of the Constitution of India,\r\nnotwithstanding the leave already granted.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>6. We have carefully considered the rival contentions and perused the\r\nimpugned order and other materials on record. The point falling for\r\nconsideration is whether the High Court was right in holding that the\r\napplication filed by the auction purchaser under Order XXI Rule 95 C.P.C.\r\nfor delivery of possession of immovable property was barred by limitation. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. Article 134 of the Limitation Act will apply to an application filed\r\nunder Order XXI Rule 95 C.P.C. by the auction purchaser for delivery of\r\npossession of property sold in execution of a decree. The limitation for\r\nfiling an application under Order XXI Rule 95 C.P.C. is one year from the\r\ndate when the sale becomes absolute.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The High Court relied upon the decision in Pattam Khader Khan\'s\r\ncase (supra) for taking the view that the application filed under Order XXI\r\nRule 95 C.P.C by the auction purchaser-appellant was barred by limitation.\r\nThe High Court held that the issuance of a sale certificate is not sine qua\r\nnon for the maintenance of an application for delivery, since the title of the\r\ncourt auction purchaser becomes complete on the confirmation of the sale\r\nunder Order XXI Rule 92 C.P.C.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. The High Court mainly considered the applicability of Section 15(1)\r\nof the Limitation Act to arrive at the conclusion that the application for\r\ndelivery of possession was barred by limitation. The High took the view\r\nthat application under Order XXI Rule 95 C.P.C. does not attract Section\r\n15(1) of the Limitation Act and consequently the period during which order\r\nof stay of execution granted by the revisional court cannot be taken into\r\nconsideration. The High Court further observed that the court auction\r\npurchaser cannot seek to extend the limitation on the ground that the stay\r\ngranted by the High Court was in force to claim the benefit of Section 15(1)\r\nof the Limitation Act.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. As seen from the records after the court auction sale on 27th October,\r\n2001, the first respondent-judgment-debtor had filed two applications, one\r\nfor setting aside the sale under Order XXI Rule 90 C.P.C.\r\n(E.A.No.315/2001) and another for appointment of an\r\nAdvocate-Commissioner to assess the value of the property sold in the\r\ncourt auction sale (E.A.No.77/2002) and both the applications were\r\ndismissed by the executing court. As against the order passed in E.A. <span style=\"font-size: 12pt;\">No.77/2002, in and by which, executing court declined to appoint\r\nCommissioner to assess the value of the property, the judgment-debtor\r\nhas filed the revision in C.R.P.No.2829/2002 in which the High Court has\r\ngranted stay of further proceedings in the execution. The said revision\r\ncame to be dismissed on 9th July, 2003. While allowing the revision filed by\r\nthe respondent-judgment-debtor, the High Court observed the period\r\nduring which stay granted by the High Court was in force i.e. from 17th\r\nSeptember, 2002 to 9th July, 2003 cannot be excluded in terms of Section\r\n15(1) of the Limitation Act. The High Court took the view that application\r\nfiled in the execution petition seeking delivery of possession does not\r\nattract Section 15(1) of the Limitation Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. Considering the facts of the present case in the light of the above\r\nprinciples, in our view, the sale could not have become absolute till the\r\nproceedings in the revision in C.R.P.No.2829/2002 was over and the\r\nrevision was disposed of. The judgment-debtor, as discussed earlier, had\r\nfiled two applications E.A.No.315/2001- (i) to set aside the sale alleging\r\nthat the property was sold for a lower price as a result of which substantial\r\ninjury was caused to him and (ii) another application in E.A. No.77/2002-\r\nan application for appointing Advocate-Commissioner to assess the value\r\nof the property. As against the order dismissing E.A.No.77/2002, the\r\njudgment-debtor has filed the revision in C.R.P.No.2829/2002. So long as\r\nthe said revision was pending, the court auction sale was yet to become\r\nabsolute. For the sake of arguments, assuming that the said revision was\r\nallowed, then in that case the court auction sale would have been set aside\r\non the ground that the property was sold for a lesser price. Therefore, till\r\nthe revision in C.R.P. No. 2829 of 2002 was disposed of in one way or the\r\nother, the sale was yet to become absolute. Be it noted that in Article 134\r\nof the Limitation Act, the legislature has consciously adopted the\r\nexpression “when the sale becomes absolute” and not when the sale\r\nwas confirmed. As against the order dismissing E.A No.77/2002 since the\r\nrevision was preferred by the judgment-debtor and the same came to be\r\ndisposed of on 9th July, 2003 the sale became absolute only on 9th July, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2003. The application filed under Order XXI Rule 95 C.P.C on 30th August,\r\n2003 was well within the period of limitation. In our view, the High Court\r\nwas not right in holding that the application under Order XXI Rule 95 C.P.C\r\nwas barred by limitation and the impugned order cannot be sustained.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>18. In the result, the impugned order of the High Court in C.R.P.No.894\r\nof 2005 dated 2nd January, 2006 is set aside. This appeal is allowed. The\r\nExecuting Court is directed to restore E.A.No.297/2003 in O.S.No.57/1985\r\nand to dispose of the same in accordance with law. No costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '77281a01835f2db1719a2d3c7d39f9c2.jpeg', '7ef4f054d0d68bfc1409ca7d890651ee.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-02', 1, '', '', '2022-06-01 20:50:31', '2022-06-02 12:24:18'),
(1762, 'xwB09xvwGC4Wh6jh4wHfSPptb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Train the Officers exercising quasi-judicial powers to write proper orders instead of adopting copy and paste method\'\'. Karnataka High Court directs the State Government. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Appasab Dhareepa Magadum Vs Asst. Commissioner Sub Division Chikkodi.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 108026 of 2015 decided on 5 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The grievance of the petitioner is that, the petitioner, who is running a cement business in shop No.12 at Raibag Railway Station, was issued a notice/order dated 16.03.2012, directing him to vacate the premises on or before 23 12 2012. The said order dated 16.03.2012 is on the basis of the oral instructions of the respondent No.1, based on an alleged complaint of respondent No.4, without giving an opportunity of being heard to the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Subsequently, the petitioner filed necessary proceedings challenging the said notice under Section (2) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as ‘the Act’, for short), which came to be dismissed on the ground that the respondent No.3 is not an Estate Officer and therefore, no powers can be exercised under Section 9(2) of the Act.  The  petitioner was relegated  to file necessary proceedings before the respondent No.2 in appeal against the order passed by the  respondent  No.3. The petitioner therefore filed an appeal, which came to be disposed of vide order dated 28.04.2015, which is under challenge in these proceedings. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Sri. Rajeshekhar Burji, learned counsel for the petitioner, would submit that the impugned order at Annexure-A is only   a cut and paste order inasmuch as page Nos. 1 and half portion of page No.2 are extracts of the appeal memo  filed  by the petitioner. The second half of page No.2, the entire page No.3 and the half portion of page No.4 are the verbatim reproduction of the objections filed by respondent No.2 and the final order is only four lines, wherein the appeal of the petitioner has been rejected and the order of the 3rd respondent has been confirmed. Thus, he submits there is complete lack of application of mind. None  of  the  contentions of the petitioner have been considered and no deliberation having occurred in the said order, the said order is required to be quashed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Notice having been issued to respondent Nos. 2 and 3, though they have been served, none has entered  appearance for the said respondents. Thus, the order is not defended.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. The order under challenge is one more classic case of an order passed by Executive Officer exercising quasi-judicial functions, which does not contain any reasons. This Court  has come across in several matters the practice of copying and posting the appeal memo and objections and finally the order is 4 to 5 lines. In most of these orders, there is no application of mind, this is probably because they have no training in writing orders. The contentions are not even deliberated upon or considered. The applicable  law  is  neither applied nor considered, the order being completely in violation of the applicable procedures, are more often than  are set aside by this Court like that which is required to be done in the present matter. When such orders are passed by the Executive Officer of Taluka Panchayat or Gram Panchayat, though notice is ordered, none appears and the matter goes uncontested. Apart there from, there is no assistance rendered to the Court while dealing with the said matters because of such non-appearance. Only the Government Advocate or the learned HCGP appears in the matter, who has no instructions and they are also unable to assist the Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>a.<span style=\"white-space:pre\">	</span>The writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>b.<span style=\"white-space:pre\">	</span>Annexure-B – notice, which has been issued by the Estate Officer, who is not authorized to exercise powers under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, is quashed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>c.<span style=\"white-space:pre\">	</span>Consequently, the impugned order at Annexure-A dated 28.04.2015 passed by the 2nd respondent is quashed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>e.<span style=\"white-space:pre\">	</span>The Principal Secretary, Revenue Department is requested to organize training of the Officers  exercising quasi-judicial powers to appreciate the applicable law, in order to enable them in discharging their responsibilities as quasi judicial officer in a proper and required manner. Unless such training  is  imparted, it would be difficult for them to  discharge their obligations, so as to meet the requirements of the applicable law and should stand the scrutiny of  Courts.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>f.<span style=\"white-space:pre\">	</span>The Principal Secretary, Panchayat Raj and Rural Development is also directed to web host the address book of all Zilla Panchayats, Town Panchayats and Gram Panchayats with the e-mail ID and mobile number of the person in-charge of litigation in the respective Zilla Panchayats, Town Panchayats  or Gram Panchayats. This would enable this Court and other  Courts  to  effect  service  of  notice  on  the  said authority so that the said authority does not go unrepresented.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '68a30b82721ef8703e5ae3315d729ac1.jpeg', '2cc50db514bb826ebe309059a03a9fd1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-03', 1, '', '', '2022-06-02 16:51:33', '2022-06-03 09:25:05');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1770, 'ZFcQrXjRrMGN82VvhM97NPPxg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Speedy conclusion of investigation in criminal cases. Karnataka High Court lays down detailed guidelines. ', '<p><b>Writ Petition 15139 of 2021(GM-Res) Order dated 17.05.2022 <br>Justice S Sunil Dutt Yadav </b></p><p><b><br>17. In light of the above factual matrix, there is a requirement to pass directions for speedy conclusion of investigation, that may be applicable to the matters in general.<br>18. Prior to passing of such directions, few aspects are to be dealt with as below:-<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18.1. Causes and Consequences of delay in Investigation <br>(A) Causes of delay in investigation:- <br>i) Lack of bifurcation of duties and the need for entrusting of investigation to specified and designated personnel. <br>ii) Non-exercise of supervisory power to monitor investigation and lack of assigning roles on superior officers to monitor and ensure time bound investigation. <br>iii) Inadequate training to the investigating personnel/officers. The Investigation Officers are to be abreast with latest developments in use of technology in commission of crimes. They are not conversant with the manner of commission of crimes, especially with respect to crimes relating to money laundering and in specific use of crypto currency and digital money in commission of crimes. <br>iv) International ramification of offences which are cross border offences usually found in money laundering cases has a serious impact on investigation. Due to lack of co-ordination between various agencies and Governments of different 16 Countries, investigation is protracted facilitating destruction of evidence and erasing of money trail. <br>v) Lack of monitoring by judicial magistrates by exercising power under Section 156(3) of Cr.P.C. <br>vi) Direct and indirect Interference in investigation where accused may belong to the Party in power. This may result in prolonging of investigation depending on the party in power or even misuse of investigation to settle scores by party in power. <br>vii) In the 239th Report of the Law Commission of India submitted to the Apex Court as noted in the order dated 12.11.2013 in the case of Virender Kumar Ohri v. Union of India & Others W.P (C) No.341/2004, the causes for delay in investigation in prevention of corruption involving cases against high Government Officials has been pointed out...<br>viii) The Law Commission of India in its 239th Report has noted that inordinate delay in investigation and prosecution of criminal cases has eroded, the fear of law and faith of people in the judicial system. It has been observed in the report and relevant portion of the report has been produced as below:- ...<br>ix) The society itself might feel, approaching the police or investigating agencies would cause more problems than solve their issues. 19 x) Delayed investigation may result in destruction of evidence which are time sensitive, would result in difficulties in retrieving evidence. <br>xi) Efforts to quash proceedings at the instance of the accused complaining that the protracted investigation has prejudiced the right of the accused for a fair trial. <br>xii) Fear and reluctance on the part of public and officers to be arraigned as witnesses due to fear of threat to life and non-adherence to witness protection scheme. <br>xiii) Delay in granting sanction and procedure prescribed under Section 19 of the Prevention of Corruption Act. <br>B. Consequences of delay in investigation : <br>i) Due to lack of speedy investigation, when accused is in custody, the accused would be eligible for grant of mandatory/default bail under Section 167(2) of Cr.P.C. The same benefit is also invoked by the accused under Prevention of Corruption Act. In RAKESH KUMAR PAUL v. STATE OF ASSAM reported in (2017) 15 SCC 67, the accused charged for the offence under Section 13 of the Prevention of Corruption Act, 1988 was granted default bail under section 167(2) of Cr.P.C. <br>ii) Upon release of the accused by default bail, chances of influencing the investigation are increased. <br>18.2. Legislative and Judicial Framework relating to speedy investigation:- <br>A. Legislative Framework:- <br>(a) Provisions under Cr.P.C. :- <br>i) Section 157 of Cr.P.C. – When information is received and an Officer incharge of the Police Station has reason to suspect commission of an offence which he can investigate under Section 156 of Cr.P.C. \"…he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person or shall depute one of the subordinates not being below such rank as the State Government, may, by general or special order, prescribe in 21 this behalf, to proceed, to the spot to investigate the facts and circumstances of the case…..\" ii) Section 167 of Cr.P.C. - Where the investigation is not completed within the period of 24 hours fixed by Section 57 of Cr.P.C., such officer shall forthwith transmit copy of the entries in the diary relating to the case and shall forward the accused to such Magistrate. Under Section 167(2), the Magistrate may authorize detention of the accused for a term not exceeding fifteen days. The Magistrate may authorize detention beyond the period of fifteen days not exceeding period of ninety days where investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than ten years. The Magistrate may also authorize detention for a period beyond fifteen days upto a term of sixty days in case of any other offence and on expiry of period of ninety days or sixty days as the case may be, if investigation is not completed the accused shall be released on bail. iii) Section 167(5) of Cr.P.C. – With respect to case triable by a Magistrate as a summons case and 22 investigation is not concluded within a period of six months from the date on which accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless officer making the investigation satisfies the Magistrate for special reasons and in the interests of justice, that continuation of investigation beyond the period of six months is necessary. iv) Section 173 of Cr.P.C.– Every investigation under Chapter-XII shall be completed without unnecessary delay. (b) Provisions under the Karnataka Police Manual:- v) Order 1550:- In cases where accused are caught red handed with property, there should be no delay in submission of charge sheet. As a rule, accused should be forwarded in custody to the Magistrate having jurisdiction along with the charge sheet except in cases where the accused is a stranger and his antecedents have to be verified. vi) Order 1550(2):- The supervisory Officer should ensure that investigation of cases should be completed 23 within a period of six months and report to the jurisdictional court is sent as required under Section 173 of Cr.P.C. vii) Order 1551:- It is the duty of the Superintendents, Sub-Divisional Police Officers and Inspectors to see that investigations are promptly carried out and provisions of Section 167, 173 and 468 of Cr.P.C. are adhered to. viii) Order 1551(2):- Provides that investigation in ordinary cases should normally be completed within one month and in case of heinous crimes within two months. ix) Order 1551(3):- In ordinary cases, extension of time for investigation upto three months may be granted month by month by the Sub-Divisional Police Officer and beyond three months by the Superintendent of Police. In heinous cases, extension upto four months may be granted by the Superintendent of Police and if the period exceeds four months, by the Range Inspector General of Police. 24 B. Judicial Framework : (a) Witness Protection:- x) The Apex Court in the case of Mahender Chawla and others v. Union of India and Others reported in (2019) 14 SCC 615 has discussed regarding protection of vulnerable witnesses. The Court noticed the establishment of vulnerable witness deposition complexes in Delhi and had referred to the setting up of such complex at Dwaraka District Court established in February 2017. It was observed that the reasons for large percentage of acquittal in criminal cases is due to witnesses turning hostile and the giving of false testimony due to lack of protection for the witnesses and their families. In light of no steps having been taken to have a witness protection scheme with statutory force, the Apex Court has approved the scheme prepared by the Union of India and observations are as follows: \" 35. One thing which emerges from the aforesaid discussion is that there is a paramount need to have witness protection regime, in a statutory form, which all the stakeholders and all the players in the criminal justice system concede. At the same time no such legislation has been brought about. These are the considerations which had influenced this Court to have a holistic regime of witness 25 protection which should be considered as law under Article 141 of the Constitution till a suitable law is framed. 36. We, accordingly, direct that : 36.1. This Court has given its imprimatur to the Scheme prepared by respondent No.1 which is approved hereby. It comes into effect forthwith. 36.2. The Union of India as well as States and Union Territories shall enforce the Witness Protection Scheme, 2018 in letter and spirit. 36.3. It shall be the \"law\" under Article 141/142 of the Constitution, till the enactment of suitable Parliamentary and/or State Legislations on the subject. 36.4. In line with the aforesaid provisions contained in the Scheme, in all the district courts in India, vulnerable witness deposition complexes shall be set up by the States and Union Territories. This should be achieved within a period of one year, i.e., by the end of the year 2019. The Central Government should also support this endeavour of the States/Union Territories by helping them financially and otherwise.\" On similar lines are the directions of this court in W.P.No.10240/2020 (Suo-motu PIL), dated 01.12.2020 which are as follows:- \" The first issue which we are considering is about the implementation of the Witness Protection Scheme, 2018 (for short ‘the said Scheme’) in terms of the directions issued by the Apex Court in the case of Mahender 26 Chawla and Others v. Union of India and Others. 2. We have perused the orders passed by the Apex Court from time to time in Writ Petition (Civil) No.699/2016 and in particular, the directions contained in paragraph 6 of the order dated 4th November, 2020. Apart from the directions issued in the case of Mahender Chawla and Others (supra) to implement the said Scheme, now, the Apex Court has directed that keeping in mind the vulnerability of the witnesses in the cases before the Special Court, the Trial Court may consider of granting protection under the said Scheme to the witnesses without the witnesses making any specific application in this regard. 3. There cannot be any dispute that in many cases pending before the Special Court, prominent political personalities are the accused. There is every possibility that some of the prosecution witnesses may become vulnerable witnesses who may need protection. We are, therefore, of the view that it is all the more necessary to strictly and effectively implement the said Scheme in relation to the prosecution witnesses in the cases before the Special Court. 4. In the memo filed today by the State of Karnataka, there is an assurance that the Government will pass an order constituting Competent Authorities in each District as per the said Scheme. There is already a direction issued by the Apex Court to all the States to implement the said Scheme. 5. The Special Court is a part of the City Civil Court at Bengaluru. Therefore, the Principal Judge will be the Chairman of the Competent Authority for the Bengaluru Urban District in terms of Clause (2) (c) of the said Scheme. The Commissioner of Police being the head of the Police will be a Member of the said 27 Competent Authority. The other member will be the head of the prosecution in the District. We, therefore, direct the State Government immediately to issue a formal order for firstly, constituting a Competent Authority for Bengaluru Urban District and secondly, for all other Districts. The Competent Authority for Bengaluru Urban District shall be constituted by the State Government within a maximum period of two weeks from today. 6. The said Scheme cannot be implemented unless the Witness Protection Fund is set up by the State Government. We, therefore, direct the State Government to set up the said fund within a period of two weeks from today. 7. We direct the State Government to invite the attention of all the Investigating Officers in the prosecutions pending before the Special Court to the provisions of the said Scheme and direct the said Officers to take all possible steps for implementation of the said Scheme. A direction shall be issued to all the Investigating Officers to bring to the notice of all the prosecution witnesses in the cases pending before the Special Court that for their protection, the said Scheme is available and they can make an application to the Principal Secretary of the Competent Authority in the form prescribed which is appended to the said Scheme. Every Investigating Officer should be informed that it is his duty to assess whether the prosecution witness can become a vulnerable witness due to various factors and whether there is a threat to the witness. He will have to apply his mind to the case of each witness and ensure that wherever necessary, a witness protection application is filed by him. 8. In view of the direction contained in Clause (1) of paragraph-6 of the order of the Apex Court dated 4th November 2020, even the 28 learned Judge presiding over the Special Court will have to apply his mind whether any particular prosecution witness needs protection even if there is no application made by the witness for grant of protection. If the learned Judge is of the view that the witness needs protection, he can always issue a direction to the State to take protection measures as provided under Clause (7) of the said Scheme. 9. The learned Judge can always request the Competent Authority to take immediate measures for taking protection measures in relation to a particular witness. Needless to add that if an oral or a written application is made by a witness, the learned Judge is bound to consider the same and issue a direction as aforesaid. It is the duty of the Special Court to ascertain from the Investigating Officer, before witnesses are examined, whether any of them need protection in terms of the said Scheme. 10. About the procedure to be followed for the appointment of the Public Prosecutor attached to the Special Court, the memo filed by the State Government is silent. It is the duty of the State to ensure that a very competent prosecutor is appointed to work before the Special Court who is capable of handling the nature of prosecutions which are pending before the Special Court. That is the reason why in the earlier order, we had directed the State Government to place on record the nature of the process followed by the State Government for appointing the prosecutor. While we say this, we must hasten to add that this is no reflection on the competency of the prosecutors who are already appointed. 11. The State Government shall ensure that the proposal for setting up the second Special Court is approved at the earliest. 29 12. We direct the Registrar General to place on record the information regarding availability of Vulnerable Witness Deposition Complexes in the State in the light of the direction issued in paragraph-36.4 of the decision of the Apex Court in the case of Mahender Chawla and Others (supra). 13. A copy of the directions issued by the State Government to all the Investigating Officers shall be placed on record. A copy of the Government Order constituting the Competent Authority shall also be placed on record before the next date…...\" (b) Supervision of Investigation under Section 156(3) of Cr.P.C. xi) In the case of Sakiri Vasu v. State of Uttar Pradesh and Others reported in (2008) 2 SCC 409, the Apex Court has laid down the following guidelines relating to exercise of power of the Magistrate under Section 156(3): “11... if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) Cr.P.C., before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be 30 registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation. 17. In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation. 24. ... we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and/or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision.” xii) The Apex Court in the case of Lalita Kumari v. Government of Uttar Pradesh reported in (2014) 2 31 SCC 1, has pointed out the advantages of registering F.I.R as soon as a complaint/information is given to the police and the relevant portion of the judgment has been extracted below:- \"97. … The obligation to register FIR has inherent advantages: 97.1. (a) It is the first step to “access to justice” for a victim. 97.2. (b) It upholds the “rule of law” inasmuch as the ordinary person brings forth the commission of a cognizable crime in the knowledge of the State. 97.3. (c) It also facilitates swift investigation and sometimes even prevention of the crime. In both cases, it only effectuates the regime of law. 97.4. (d) It leads to less manipulation in criminal cases and lessens incidents of “antedated” FIR or deliberately delayed FIR.\" 19. Guidelines for speedy Investigation: i) Offences may be categorized into (a) petty offences (b) serious offences and (c) heinous offences. As regards petty offences, time limit of 60 days could be fixed for completion of investigation which could be extended by the Special Judge/Magistrate upon request made, assigning reasons for extension of time for investigation to be 32 completed. As regards serious and heinous offences, time limit of 90 days could be stipulated with provision to extend such time period upon request by the Special Judge / Magistrate upon reasons being made out. Such an intervention may be necessary in light of the approach of the Apex Court in the case of Abdul Rehman Antulay and Others v. R S Nayak and Another reported in (1992) 1 SCC 225 where Guidelines were laid down for speedy trial of criminal proceedings. The relevant extract is as follows: “86. … (2) Right to Speedy Trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial. That is how, this Court has understood this right and there is no reason to take a restricted view. (3) The concerns underlying the Right to speedy trial from the point of view of the accused are : (a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction; (b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged 33 investigation, inquiry or trial should be minimal; and …\" ii) In the event the investigation is not completed within the time prescribed and the superior officer is of the opinion that there are no justifiable reasons for completion of the investigation, power can be exercised under Section 36 of Cr.P.C. by the Superior Officer. iii) The Magistrate / Special Judge can invoke power under Section 156(3) of Cr.P.C. to ensure investigation is expeditious and pass appropriate directions where the investigation appears to be procrastinated to the prejudice of the complainant and would have the effect of derailing the investigation. The Magistrate can upon application filed or otherwise seek report from the concerned authority as regards delay in investigation. (See Paras-11, 17 and 24 in Sakiri Vasu case (supra) and Om Prakash Sharma v. State of Madhya Pradesh reported in ILR 2021 MP 984, Paras-11 and 11.2). (iv) Where grievance relates to non-registration of first information report and application under 156(3) has been filed, same may be disposed off within a period 34 preferably not exceeding thirty days as relief sought for itself is relating to non-registration of FIR. (v) The Magistrate at the stage of extension of remand under Section 167 of Cr.P.C. could enquire regarding stage of Investigation. vi) Many a time the prosecutor is required to take a call on need for examination of multiple witnesses. Once any one witness is examined on a particular aspect and if the evidence is clear and not shaky, the summoning of additional witnesses is to be avoided, as summoning multiple witnesses to speak on the same aspect results in prolonging trial and gives room to the defence to exploit contradictions amongst witnesses speaking on the same aspect. vii) Setting up separate investigation wing with dedicated personnel in police stations with necessary training imparted so as to inculcate professionalism in investigation. viii) Personnel involved may be subjected to training relating to modus operandi in commission of crime, 35 strategies of unearthing crimes and their detection, and steps to be taken to familiarize them with necessary knowledge relating to technology involved in commission of cyber crimes, money laundering and corruption offences. ix) In the event of failure to complete investigation in an expeditious manner provisions under Section 20(C) and 20(D) of the Karnataka Police Act can be invoked and a complaint could be made to the State and District Police Complaint Authority. In fact, delay in completing investigation can be a ground to invoke Section 20(C) in terms of the Explanation to Section 20(C)(7). This would ensure accountability of the investigating officers. x) The delay in investigation and consequent delay in trial, places the complainant as well as the witnesses in a vulnerable position and the protection mechanism requires to be evolved. xi) Necessary efforts for bifurcation of law and order, and crime investigation as regards personnel needs to be implemented. 36 xii) In order to overcome fear and reluctance on the part of public to be arraigned as witnesses, steps must be taken to implement the Witness Protection Scheme. The Apex Court has approved the Witness Protection Scheme, 2018 in the case of Mahender Chawla (supra), at para-26, the Apex Court has referred to the Witness Protection Scheme in which the following protection measures are given to the witnesses under the scheme: \"7. Types of protection measures: The witness protection measures ordered shall be proportionate to the threat and shall be for a specific duration not exceeding three months at a time. These may include: (a) Ensuring that witness and accused do not come face to face during investigation or trial; (b) Monitoring of mail and telephone calls; (c)Arrangement with the telephone company to change the witness’s telephone number or assign him or her an unlisted telephone number; (d) Installation of security devices in the witness’s home such as security doors, CCTV, alarms, fencing etc; (e) Concealment of identity of the witness by referring to him/her with the changed name or alphabet; 37 (f) Emergency contact persons for the witness; (g) Close protection, regular patrolling around the witness’s house; (h) Temporary change of residence to a relative’s house or a nearby town; (i) Escort to and from the court and provision of Government vehicle or a State funded conveyance for the date of hearing; (j) Holding of in-camera trials; (k) Allowing a support person to remain present during recording of statement and deposition; (l) Usage of specially designed vulnerable witness court rooms which have special arrangements like live video links, one way mirrors and screens apart from separate passages for witnesses and accused, with option to modify the image of face of the witness and to modify the audio feed of the witness’ voice, so that he/she is not identifiable; (m) Ensuring expeditious recording of deposition during trial on a day to day basis without adjournments; (n) Awarding time to time periodical financial aids/grants to the witness from Witness Protection Fund for the purpose of re-location, sustenance or starting a new vocation/profession, as may be considered necessary; (o) Any other form of protection measures considered necessary.\" 38 xiii) Necessary mechanism needs to be designed to implement the mandate of Order No.1550, 1550 (2), 1551 (2) and (3) of the Karnataka Police Manual. xiv) The Authorities concerned may consider having provisions for the purpose of speedy and effective investigation by framing Regulations in lines of Police Regulations Bengal, 1943 which are as follows:- \"54. Supervision of criminal investigations. [§ 12, Act V, 1861]. – (a) An officer supervising the investigation of a criminal case should satisfy himself that – (i) the investigation is being pushed through without delay ; (ii) the investigation is thorough, i.e., that clues are not overlooked or important lines of enquiry neglected; (iii) investigating officers do not work mainly for confessions or rely too much on any that are made, and that they use no sort of pressure and offer no sort of inducement to obtain confessions ; (iv) the subordinate police are working honestly; (v) the public are properly treated ; and (vi) the prescribed procedure is followed. 39 (b) He shall on no account put pressure on investigating officers by injunctions to detect particular case or cases generally. (c) The methods to be adopted by supervising officers are- (i) visits to the place of occurrence at various stages of the investigation and personal examination, if necessary, of witnesses ; (ii) careful scrutiny of case diaries and other papers connected with the investigation; and (iii) examination of crime registers and other records at the police-stations. (d) When a supervising officer discovers mistakes or omissions on the part of an investigating officer, he should point them out to him and should not call for a written explanation unless it appears likely to be necessary to inflict punishment. (e) A Superintendent, an Assistant or a Deputy Superintendent, and (for his own circle only) a Circle Inspector have power to order an officer attached to any police-station to investigate a case that, under section 156 of the Code of Criminal Procedure, should be investigated by the officer-in-charge; of another police-station; but the power should be exercised sparingly and its exercise by an officer subordinate to a Superintendent should at once be reported to the Superintendent. 55. Supervision by Superintendents and other officers. [§ 12, Act V, 1861]. – (a) A Superintendent shall supervise the investigation of Important special report cases and of all cases in which the conduct of 40 subordinate police officers appears unsatisfactory. If, for special reasons, he is unable himself to supervise the investigation of any such case, he may depute an Assistant or Deputy Superintendent to do so. (b) A Superintendent, Assistant or Deputy Superintendent who is supervising a case need not visit the place of occurrence unless such visit is likely to be of practical value. (c) A Circle Inspector shall supervise every case within his circle, and he shall visit the place of occurrence and test the evidence in every such case that is of importance. In selecting cases for testing on the spot he should direct his attention particularly to cases of house-breaking, riot and grievous hurt and to other cases which have been reported as false or non-cognizable. 56. Supervising officers to give evidence, and to keep diaries. [§ 12, Act V, 1861]. (a) Officers who have supervised investigations of important cases should be encouraged to give evidence in Court regarding any important facts which have come to their notice during the investigations. (b) An officer supervising an investigation shall keep a personal diary in the form prescribed for Inspectors in regulation 197 and shall note in the manner in which he supervised the investigation, any questions which he has put to a witness, any identification which took place in his presence and any other matters on which he may need to refresh his memory before giving evidence. This diary shall be kept in the officers’ personal custody. 41 (c) An officer who, while supervising a case, has himself taken part in an investigation shall, under section 172 of the Code of Criminal Procedure, keep a case diary showing where and at what times he made the investigation. Only fresh developments which may take place during supervision should be noted in a case diary by the superior officer. It should also include any specific orders given by him. This diary shall form part of the main case diaries submitted by the Investigating Officer of the case.\" xv) In cases involving influential public personalities, resort to Section 164 Cr.P.C., should be made more frequently. xvi) While investigation of offences under the provisions of Cr.P.C. is the exclusive domain of the police, the Judicial Magistrate should have role to play to counter the moves of persons in influential positions to subvert the effective process of investigation. Accordingly, the I.O. shall bring to the notice of Magistrate the bottlenecks, if any, that are coming in the way of speedy investigation including the attempts being made by the accused to hinder the investigation. The Magistrate shall, apart from taking such steps as are permissible under law, for example, issuing summons for the production of documents in the custody of suspect/accused/or a third party, may also send a report to 42 the District Judge for appropriate action on the administrative side to eliminate delays. (xvii) The State is required to take steps for the implementation of the Witness Protection Scheme in terms of the observations of the Apex Court in the case of Mahendra Chawla and Others (supra) as well as the direction in the order dated 01.12.2020 passed in W.P.No.10240/2020 which is a suo motu writ petition pending before this court. Further, the Judicial Officers are also required to take note of the mandate of the directions of the order dated 01.12.2020. 20. Insofar as the present case is concerned, the Special Judge may take note of the observations made herein. The Investigation Agency is to took into the observations as may be applicable. As regards the submission of the Investigation Agency that the final report cannot be filed till the pending proceedings in I.T.A. No.100050/2018 are disposed off may not be the correct stand in light of the law laid down in the case of State of Karnataka v. J. Jayalalitha reported in (2017) 6 SCC 43 263 and the relevant observation at para-201 reads as follows:- \"201. This decision is to emphasise that submission of income tax returns and assessments orders passed thereon, would not constitute a foolproof defence against a charge of acquisition of assets disproportionate to the known lawful sources of income as contemplated under the PC Act and that further scrutiny/analysis thereof is imperative to determine as to whether the offence as contemplated by the PC Act is made out or not.\" 21. It is further clarified in para-199 that the proceedings under the Income Tax Act will not be binding upon the proceedings under the P.C. Act., as follows:- \"199. …The scrutiny in an assessment proceeding is directed only to quantify the taxable income and the orders passed therein do not certify or authenticate that the source(s) thereof to be lawful and are thus of no significance vis-à-vis a charge under Section 13(1)(e) of the Act.\" 22. This Court however clarifies that issuance of writ of mandamus as sought for is to be deferred as the companion writ petition challenging the validity of proceedings is yet to be disposed off. 23. The quality of any judgment rests on the assistance of the counsel. This Court places on record its appreciation and assistance of Amicus Curiae Mr.Sandesh 44 Chouta, learned Senior Counsel, who has given his valuable inputs and a number of suggestions and made extremely useful suggestions and also, his painstaking efforts have contributed to the directions passed herein. The Registrar General, High Court of Karnataka, Bengaluru to send a copy of this order for necessary attention to the following:- i) The Director General & Inspector General of Police, Karnataka. ii) The Secretary, Home Department iii) The Director, Prosecution Department. List these matters in due course. (S. SUNIL DUTT YADAV) JUDGE VGR/VP/Np</b></p>', '74da75dfed822b2837aeb7a625724fdd.jpg', '20ba1d93de7180bb7afa9c4720597e0c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-03', 1, '', '', '2022-06-03 03:50:46', '2022-06-03 12:12:39'),
(1820, 'p5OdyB25tORdIcDE74zMv4VFj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Annulment of marriage does not give right to husband to retain articles of the wife carried by her to the matrimonial house. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sri Ganesh Prasad Hegde and others Vs Suresh Shetty.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 4544 of 2018 decided on 6 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Brief facts as projected by the prosecution are as follows:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The respondent is the complainant. The 1st petitioner/accused No.1 was the husband of the respondent. Petitioners 2 and 3 are father-in-law and mother-in-law of the complainant. Marriage between the 1st petitioner and the respondent was solemnized on 03-12-1998. It is the case of the complainant that prior to the said date of marriage certain talks between the parents of the complainant and the 1st petitioner resulted in exchange of Rs.4/- lakhs at one point in time and Rs.5/-lakhs later, which was on 21-09-1998 and 11-10-1998. The relationship between the 1st petitioner and the respondent got strained and in the month of March 2001 it appears that the respondent was forced to leave her matrimonial house. On 05.10.2001 the  respondent  executes an affidavit for having received Rs.3/- lakhs as full and final settlement for a divorce on consent. On 10-10-2001 the amount was also paid to the respondent. A petition for divorce was filed under Section 13(1) and (ia) of the Hindu Marriage Act. This came to be dismissed on 10-04-2003 on the score that the respondent who was a resident of Bangalore could not appear in the mutual consent divorce proceedings before the Family Court at Mumbai and the counsel also had not appeared before the Court after which, a complaint was filed by the 1st petitioner against the respondent before the learned Magistrate with reference to a transaction by way of a cheque and it getting dishonoured proceedings were initiated under Section 138 of the Negotiable Instruments Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. On 05-11-2005 the respondent communicates that she would begin to cohabitate with the 1st petitioner. Before this communication, the respondent had initiated proceedings against petitioners alleging harassment for demand of dowry for offences punishable under Section 498A of the IPC and Sections 3 and 4 of the Dowry Prohibition Act. The same was registered as Crime No.373 of 2003. On co-habitation communication, the respondent also assured that she would withdraw the complaint in Crime No.373 of 2003. In the meanwhile, the Police after investigation filed a ‘B’ report in the said crime case. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. On 04-12-2007 the 1st petitioner files a petition for divorce on the ground of cruelty against the wife which came to be dismissed. On 17-02-2009 the respondent raises a demand that Stridhana of Rs.9/- lakhs which was paid had to be returned along with interest at 9% p.a. beginning from 11-10-1998. When the petitioners failed to pay the said amount, the respondent registers a private complaint in P.C.R.6351 of 2009 before the learned Magistrate at Bangalore for offences punishable under Section 406 of the IPC alleging criminal breach of trust in not returning Rs.9/- lakhs which according to the complainant was the Stridhana that the petitioners had received in the year 1998. This was challenged before this Court by the petitioners in Criminal Petition No.2824 of 2009 seeking quashing of proceedings in P.C.R.6351 of 2009 which by then had become a Criminal case on the Police filing a charge sheet. Noticing the said fact, this Court dismissed the criminal petition by its order dated 13-08-2009.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. The learned counsel appearing for the petitioners would vehemently argue and contend that nothing is left to be paid to the respondent as it was agreed upon for divorce the permanent alimony was to be in full and final settlement towards annulment of marriage. The High Court of Bombay in Family Court Appeal had clearly indicated that the marriage between the 1st petitioner and the respondent was dissolved by mutual consent towards which permanent alimony of Rs.4/- lakhs was paid. The issue that was left open was with regard to claim of maintenance and, therefore, would submit that there cannot be an offence for criminal breach of trust in the teeth of the order passed by the High Court of Bombay. Both the orders seeking to frame charge and dismissal of the revision petition seeking discharge of the petitioners are erroneous in law and would seek that the petition be allowed and all proceedings be quashed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. On the other hand, the learned counsel appearing for the respondent would vehemently refute the submissions to contend that permanent alimony of Rs.4/- lakhs did not contain the said amount which was paid prior to marriage. The petitioners, after divorce, cannot hold on to Stridhana which was given on two occasions one Rs.4/- lakhs and the other Rs.5/-lakhs and would submit that it does amount to criminal breach of trust for not returning the money despite notice being issued to them.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. The afore-narrated sequence of events happening on respective dates are not in dispute and are, therefore, not reiterated. If transfer of amount of Rs.4/- lakhs and Rs.5/-lakhs on two dates is to be accepted what happens after the said dates is also required to be noticed. M.J.Petition No.769 of 2001 was filed before the family Court at Mumbai invoking Section 13B of the Hindu Marriage Act seeking annulment of marriage that took place between the 1st petitioner and the respondent. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. In all the aforesaid proceedings what can be unmistakably gathered is that annulment of marriage did take place on the settlement between the parties for an amount of Rs.4/- lakhs. The issue herein is not with regard to the amount of alimony, its enhancement or rejection. The issue is with regard to whether all the aforesaid proceedings did cover Stridhana. It is not in dispute that an amount of Rs.4/- lakhs was paid on 21-09-1998 and the manner in which it was paid is narrated in the document itself and another chunk of Rs.5/-lakhs was paid on 11-10-1998. Totally about Rs.9/- lakhs was paid to the petitioner as Stridhana. This figure is not in dispute. The defence of the petitioners is that annulment of marriage took place on a settlement arrived at, which would include Stridhana amount as well, as it is full and final settlement of claims mutually agreed between the husband and the wife. On 17-02-2009 the respondent/wife causes a legal notice raising a demand for Rs.9/- lakhs which was Stridhana amount along with interest from 11-10-1998. Not acceding to the said demand led to registration of crime in C.C.No.8663 of 2009 for the offence punishable under Section 406 of the IPC. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. The contention of the learned counsel appearing for the respondent is that at the time of solemnizing marriage Rs.9/-lakhs was entrusted to either the husband or his family which ought to have been returned. Failure to return the said amount would become criminal breach of trust as it satisfies every ingredient that is needed to allege criminal breach of trust.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17. The allegation now is for criminal breach of trust as obtaining under Section 406 of the IPC. The offence to become punishable under Section 406 of the IPC must have its ingredients as obtaining under Section 405 of the IPC which deals with criminal breach of trust. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. The amount involved in the lis is Rs.9/- lakhs which according to the complainant had been paid as Stridhana in the year 1998. With the settlement entered into between the parties seeking annulment of marriage as permanent alimony, the amount of Rs.9/- lakhs that was paid at the time when the respondent was given in marriage to the 1st petitioner was a separate and distinct Stridhana. Annulment of marriage takes place on a settlement arrived at Rs.4/- lakhs to be in full and final settlement. No judicial fora have determined this amount to include Rs.9/- lakhs of Stridhana as this was never the claim in the divorce proceedings between the parties. The settlement was arrived at only for the purpose of annulment of marriage. Annulment of marriage cannot mean that all the articles that the respondent carried to the matrimonial house can be retained by the family of husband. The charges have been framed in the case at hand against the petitioners. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. It is also the contention of the learned counsel appearing for the petitioners that earlier complaint was filed and without disclosing the said complaint becoming final the next complaint is filed. The said complaint registered was alleging offence punishable under Section 498A of the IPC. That having ended in closure by the Police filing a ‘B’ report and the respondent not challenging the ‘B’ report would not be a bar for registration of a complaint subsequently for the offence punishable under Section 406 of the IPC. The claim with regard to Stridhana was never put forth by the respondent and for the first time it was in the notice in the year 2009 the claim was made. Therefore, none of the submissions made by the learned counsel appearing for the petitioners is tenable, as the facts obtaining in the case at hand, the undisputed fact is that Stridhana of Rs.9/- lakhs was paid to the petitioner and his family and that amount which is retained by them would necessarily be a matter for trial against the petitioners for offence punishable under Section 406 of the IPC and it is for the petitioners to come out clean in the trial. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. For the aforesaid reasons, Criminal Petition lacks merit and is dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fcae3c2e90320111eddfc1409c94c798.jpeg', 'dc7730b95e114d95e3c8c97dbe4be483.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-16', 1, '', '', '2022-06-15 17:22:53', '2022-06-16 12:21:13');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1817, '3japlZ4IcJllEYHEaSSsSkEij', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu without adjourning the matter sine die. Supreme Court. ', '<p><b>Kattukandi Edathil Krishnan and another vs Kattukandi Edathil Valsan and others <br>Civil Appeal 6406-6407 of 2010 decided on 13 June 2022<br>Justice S. Abdul Nazeer and Justice Vikram Nath. </b></p><p><b>32. Since there is no limitation for initiating final decree proceedings, the litigants tend\r\nto take their own sweet time for initiating final decree proceedings. In some States, the\r\ncourts after passing a preliminary decree adjourn the suit sine die with liberty to the\r\nparties for applying for final decree proceedings like the present case. In some other\r\nStates, a fresh final decree proceedings have to be initiated under Order XX Rule 18.\r\nHowever, this practice is to be discouraged as there is no point in declaring the rights of\r\nthe parties in one proceedings and requiring initiation of separate proceedings for\r\nquantification and ascertainment of the relief. This will only delay the realization of the\r\nfruits of the decree. This Court, in Shub Karan Bubna (supra), had pointed out the\r\ndefects in the procedure in this regard and suggested for appropriate amendment to the\r\nCPC. The discussion of this Court is in paragraphs 23 to 29 which are as under:\r\n</b></p><p><i><b>“A suggestion for debate and legislative action\r\n<br>23. The century old civil procedure contemplates judgments, decrees, preliminary\r\ndecrees and final decrees and execution of decrees. They provide for a “pause” between a\r\ndecree and execution. A “pause” has also developed by practice between a preliminary\r\ndecree and a final decree. The “pause” is to enable the defendant to voluntarily comply with\r\nthe decree or declaration contained in the preliminary decree. The ground reality is that\r\ndefendants normally do not comply with decrees without the pursuance of an execution. In\r\nvery few cases the defendants in a partition suit voluntarily divide the property on the passing\r\nof a preliminary decree. In very few cases, defendants in money suits pay the decretal\r\namount as per the decrees. Consequently, it is necessary to go to the second stage, that is,\r\nlevy of execution, or applications for final decree followed by levy of execution in almost all\r\ncases.<br>24. A litigant coming to court seeking relief is not interested in receiving a paper decree\r\nwhen he succeeds in establishing his case. What he wants is relief. If it is a suit for money,\r\nhe wants the money. If it is a suit for property, he wants the property. He naturally wonders\r\nwhy when he files a suit for recovery of money, he should first engage a lawyer and obtain\r\na decree and then again engage a lawyer and execute the decree. Similarly, when he files\r\na suit for partition, he wonders why he has to first secure a preliminary decree, then file an\r\napplication and obtain a final decree and then file an execution to get the actual relief. The\r\ncommonsensical query is: why not a continuous process? The litigant is perplexed as to why\r\nwhen a money decree is passed, the court does not fix the date for payment and if it is not\r\npaid, proceed with the execution; when a preliminary decree is passed in a partition suit,\r\nwhy the court does not forthwith fix a date for appointment of a Commissioner for division\r\nand make a final decree and deliver actual possession of his separated share. Why is it\r\nnecessary for him to remind the court and approach the court at different stages?\r\n<br>25. Because of the artificial division of suits into preliminary decree proceedings, final\r\ndecree proceedings and execution proceedings, many trial Judges tend to believe that\r\nadjudication of the right being the judicial function, they should concentrate on that part.\r\nConsequently, adequate importance is not given to the final decree proceedings and\r\nexecution proceedings which are considered to be ministerial functions. The focus is on\r\ndisposing of cases rather than ensuring that the litigant gets the relief. But the focus should\r\nnot only be on early disposal of cases, but also on early and easy securement of relief for\r\nwhich the party approaches the court. Even among lawyers, importance is given only to\r\nsecuring of a decree, not securing of relief. Many lawyers handle suits only till preliminary\r\ndecree is made, then hand it over to their juniors to conduct the final decree proceedings\r\nand then give it to their clerks for conducting the execution proceedings.\r\n<br>26. Many a time, a party exhausts his finances and energy by the time he secures the\r\npreliminary decree and has neither the capacity nor the energy to pursue the matter to get\r\nthe final relief. As a consequence, we have found cases where a suit is decreed or a\r\npreliminary decree is granted within a year or two, the final decree proceeding and execution\r\ntakes decades for completion. This is an area which contributes to considerable delay and\r\nconsequential loss of credibility of the civil justice system. Courts and lawyers should give\r\nas much importance to final decree proceedings and executions, as they give to the main\r\nsuits.\r\n<br>27. In the present system, when preliminary decree for partition is passed, there is no\r\nguarantee that the plaintiff will see the fruits of the decree. The proverbial observation by the\r\nPrivy Council is that the difficulties of a litigant begin when he obtains a decree. It is\r\nnecessary to remember that success in a suit means nothing to a party unless he gets the\r\nrelief. Therefore, to be really meaningful and efficient, the scheme of the Code should enable\r\na party not only to get a decree quickly, but also to get the relief quickly. This requires a\r\nconceptual change regarding civil litigation, so that the emphasis is not only on disposal of\r\nsuits, but also on securing relief to the litigant.\r\n<br>28. We hope that the Law Commission and Parliament will bestow their attention on this\r\nissue and make appropriate recommendations/amendments so that the suit will be a\r\ncontinuous process from the stage of its initiation to the stage of securing actual relief. <br>29. The present system involving a proceeding for declaration of the right, a separate\r\nproceeding for quantification or ascertainment of relief, and another separate proceeding for\r\nenforcement of the decree to secure the relief, is outmoded and unsuited for present\r\nrequirements. If there is a practice of assigning separate numbers for final decree\r\nproceedings, that should be avoided. Issuing fresh notices to the defendants at each stage\r\nshould also be avoided. The Code of Civil Procedure should provide for a continuous and\r\nseamless process from the stage of filing of suit to the stage of getting relief.”\r\n</b></i></p><p><b>33. We are of the view that once a preliminary decree is passed by the Trial Court, the\r\ncourt should proceed with the case for drawing up the final decree suo motu. After\r\npassing of the preliminary decree, the Trial Court has to list the matter for taking steps\r\nunder Order XX Rule 18 of the CPC. The courts should not adjourn the matter sine die,\r\nas has been done in the instant case. There is also no need to file a separate final decree\r\nproceedings. In the same suit, the court should allow the concerned party to file an\r\nappropriate application for drawing up the final decree. Needless to state that the suit\r\ncomes to an end only when a final decree is drawn. Therefore, we direct the Trial Courts\r\nto list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing\r\nof the preliminary decree for partition and separate possession of the property, suo motu\r\nand without requiring initiation of any separate proceedings.\r\n</b></p><p><b>34. We direct the Registry of this Court to forward a copy of this judgment to the\r\nRegistrar Generals of all the High Courts who in turn are directed to circulate the\r\ndirections contained in paragraph ‘33’ of this judgment to the concerned Trial Courts in\r\ntheir respective States.</b><br></p>', '3c3d7e4df88fcba6971a41cf6abb63aa.jpg', '4d443a522f30c266ce0e6760aa8c380e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-14', 1, '', '', '2022-06-14 22:14:35', '2022-06-14 22:15:36'),
(1808, 'VdKC9PlVdKDssXbQcfca47yc9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Test. Attachment ???', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shri Adhir Ranjan Chowdhury Vs The State of West Bengal.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WPA 22753 of 2018 decided on 13 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. By this public interest petition, the petitioner who is stated to be an\r\nex-MLA and a Member of Parliament has challenged the transfer of share\r\nof the respondent no. 5, Metro Dairy Limited (for short, ‘MDL’) to the\r\nrespondent no. 10, Keventer Agro Limited. (for short, ‘KAL)\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The respondent no. 5, MDL was a limited company incorporated\r\nunder the Companies Act, 1956 in pursuance to the joint venture agreement\r\ndated 31st of May, 1993 executed by the respondent no. 7, West Bengal\r\nCorporative Milk Products Limited, (for short, ‘BEN’, respondent no. 10\r\nand the National Dairy Development Board, (for short, ‘NDDB’). The share\r\nholding pattern of the MDL since inception was as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>a. State of West Bengal – 47 %;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>b. National Dairy Development Board (NDDB) – 10 %;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>c. Keventer Agro Limited (KAL) – 43 %;\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Subsequently, NDDB had sold its 10 % shares to ICICI and the\r\nsame were acquired by the respondent no. 10, KAL, on 21st of March, 2014.\r\nThe plea of the petitioner in the writ petition is that by the newspaper\r\nreports in or about 22nd of August, 2017, the petitioner came to know that\r\nthe respondent State was considering the proposal to disinvest the equity on\r\nMDL for which in May, 2017, e-auction open tender was floated and the\r\nrespondent no. 10 had submitted a bid to buy out the shares. It is stated that\r\nthe respondent no. 10 had offered Rs. 85.5 crores as against the base price\r\nof Rs. 85.43 crores and on 24th of August, 2017, the petitioner came to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">know through the newspaper reports that West Bengal Cabinet had\r\napproved the proposal to disinvest the Government’s equity in MDL.\r\nThereafter, disinvestment was carried out and respondent no. 10 became the\r\nowner of 100 % shares in MDL. The allegation in the petition is that the\r\nshares have been sold to respondent no. 10 at a very low price without\r\nfollowing any transparent process and without any justifiable reason. The\r\nprayer in the writ petition is to appoint a high powered committee headed\r\nby a sitting Judge of the High Court to investigate the transfer of shares, to\r\ndeclare the transfer of shares of MDL as illegal and recall the transaction\r\nand also to declare the e-auction process to be colourable exercise of power.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. Submission of Shri Bikash Ranjan Bhattacharyya, learned Senior\r\nCounsel for the petitioner is that 47 % shares of MDL have been sold to the\r\nrespondent no. 10 for Rs. 85.5 crores whereas subsequently, the respondent\r\nno. 10 had sold 15 % shares to Mandala Capital valued at Rs. 170 crores.\r\nThus, when the respondent State sold its shares in MDL to respondent no.\r\n10, the value attached to 1 % share was Rs. 1.8 crores but subsequently,\r\nwhen respondent no. 10 sold it 15 % shares to Mandala Capital, the value\r\nattached to 1 % share was Rs. 11.3 crores and going by this calculation, the\r\nvalue of 47 % shares of the State was Rs. 533 crores which has been sold at\r\na very low price of Rs. 85.5 crores. He has further submitted that the\r\nopaque process of sale of shares has been adopted, no publication in wellknown newspapers has been done and there was only one bidder whose bid\r\nhas been accepted. It is further submitted that the entire auction is on the\r\nbasis of the letter of the respondent no. 10 dated 9th of July, 2015 (annexure\r\n– R2) and that the condition of deposit of non-refundable amount of Rs. 10\r\nlakhs in the NIT was a tailor-made condition to favour the respondent no.\r\n10 and that MDL was not running in loses, therefore, there was no necessity </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to sale its shares. It is further submitted that the writ petition, on the basis of\r\nthe newspaper reports, can very well be entertained. In support of his\r\nsubmission, learned Counsel for the petitioner has placed reliance upon the\r\njudgment of the Hon’ble Supreme Court in the matter of Aggarwal &\r\nModi Enterprises (P) Ltd. Vs. New Delhi Municipal Council reported in\r\n(2007) 8 SCC 75, in the matter of Reliance Telecom Limited and\r\nAnother vs. Union of India and Another reported in (2017) 4 SCC 269\r\nand in the matter of Uflex Limited vs. Government of Tamil Nadu and\r\nOthers reported in (2022) 1 SCC 165. He has also placed reliance upon the\r\njudgment of this Court in the matter of Anindya Sundar Das vs. Union of\r\nIndia and Others reported in (2018) 2 CHN 164.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5. Shri J.P. Khaitan, learned Senior Counsel appearing for the State\r\nhas submitted that proper valuation of the share was done through an\r\nindependent agency and a transparent process has been followed to sell the\r\nshares above the reserve price and that 15 % of its shares sold by\r\nrespondent no. 10 to Mandala were not the shares of MDL. He has further\r\nraised an objection that the writ petition filed on the basis of the newspaper\r\nreports cannot be entertained and has also submitted that the decision to\r\nsale the shares of MDL is not a hasty decision but it was taken after due\r\ndeliberations and the conditions of NIT were not tailor-made and twice\r\nadvertisements were published in the newspaper as well as uploaded in the\r\nwebsites. He has also submitted that on account of the competition, the\r\nsales of MDL were decreasing which was one of the reasons for taking\r\ndecision to disinvest and that there is no material to show that the price\r\noffered was not adequate. He has also submitted that the decision to\r\ndisinvest is an economic policy decision wherein the scope of interference\r\nis limited.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. We have heard the learned Counsel for the parties and perused the\r\nrecord. The first issue is in respect of maintainability of the petition on the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">basis of the newspaper report. It is the settled law that the newspaper report,\r\nwithout any further material in support thereof, has no evidentiary value.\r\nThe petition based upon unconfirmed newspaper report, without fortifying\r\ntheir authenticity, may not be entertained.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. In the present case also, the allegation of sale of 47 % shares of\r\nMDL to the respondent no. 10 is not in dispute and there is an allegation\r\nabout arbitrary manner of transfer of share and the PIL was entertained in\r\nthe year 2018, thereafter, affidavits have been exchanged and the material\r\nhas come on record in respect of the nature of transaction, therefore, we do\r\nnot deem it proper to reject the petition on the technical ground of having\r\nbeing filed on the basis of the newspaper reports.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. The next issue is about the scope of interference in such a decision\r\nof the State to sell its shares in MDL to the respondent no. 10. The decision\r\nin respect of disinvestment and transfer of 47 % of shares in MDL by the\r\nState is essentially a policy decision based upon economic and other\r\nconsiderations. Such a policy decision is not open to interference unless the\r\nsame is unconstitutional, violative of statutory provision, totally arbitrary or\r\nsuffers from the vice of malice. Courts may also interfere if any illegality is\r\ncommitted in the execution of such a policy decision. It does not lie within\r\nthe domain of the Courts to consider the relative merits of different\r\neconomic policies. It is settled that the process of disinvestment is a policy\r\ndecision involving complex economic factors and it is not for the Court to\r\nexamine whether the policy of a particular disinvestment was desirable or\r\nnot.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. Thus, this Court is required to examine the present case in the light\r\nof the limited scope of interference in the economic policy decision of the\r\nState relating to sale of 47 % shares of MDL.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. In the present case, nothing has been pointed out to show that the\r\ndecision of the State to sell 47 per cent shares of MDL runs counter to any\r\nstatutory provision or is illegal in any manner. This Court need not go\r\nbeyond the policy decision and find out the reason for such a policy\r\ndecision if the decision is otherwise unquestionable. Even otherwise, it has\r\nbeen pointed out from the record that the MDL is a company dealing in\r\ndiary business alone and sometime around 2004-05, Amul milk, owned by\r\nGujarat Co-operative Milk Marketing Federation, had entered the West\r\nBengal Milk Market as competitor to the MDL as a result of which, the\r\nannual procurement of milk as also annual sale of MDL were continuously\r\ndeclining. The comparative chart indicating the decline in the sales of MDL\r\nfrom 2013-14 to 2018 as against the increasing sale of Amul during this\r\nperiod has been pointed out to us. The respondent no. 5 had raised this\r\nissue. The respondent no. 10 was having majority shares of 53 % in MDL.\r\nIt has been disclosed in the affidavit-in-opposition of the respondent no. 10\r\nthat by letter dated 9th of July, 2015, a request was made by the respondent\r\nno. 10 to the Animal Resources Department, Government of West Bengal\r\nfor bringing in more capital into respondent no. 5, which the State did not\r\nagree. Learned Senior Counsel for the respondent no. 10 has also pointed\r\nout to this Court that in terms of Clause 4.3 of the Joint Venture Agreement <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dated 31st of May, 1993, one of the partner could exit by transferring its\r\nshares to the other partner but the State was not willing to exit respondent\r\nno. 5 in terms of Clause 4.3, hence, a decision was taken to disinvest the\r\nshares of the State in respondent no. 5. The said decision was approved in\r\nthe cabinet meeting. In the above background, the policy decision of the\r\nState to disinvest the shares of the respondent no. 5 cannot be faulted.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16. The next issue is if the State has sold 47 % shares of the\r\nrespondent no. 5, MDL, to the respondent no. 10 in arbitrary manner or\r\nmalafidely? The material on record indicates that the State had found that\r\ndisinvestment of Government shares on the basis of book value to the other\r\npromoters in terms of clause 4.3 of the JVA would have fetched much less\r\nearning, hence, a decision was taken to opt for open market competitive\r\nbidding for sale of shares based on market value. M/s. Price Waterhouse &\r\nCo. LLP was engaged as Transaction Advisor (for short, ‘TA’) for\r\nvaluation of the shares of the respondent no. 5 which had determined the\r\nbook value of equity shares at Rs. 82 on the basis of the unaudited Balance\r\nSheet of the Company as on 13th of September, 2015. The TA had assessed\r\nthe enterprise value of the respondent no. 5 by adopting income approach as\r\nalso market approach and had assessed the value of equity shares in the\r\nrange of Rs. 270-293. The valuation report has been placed on record.\r\nFinance Department had approved the higher price range of Rs. 293 per\r\nequity share for the purpose and accordingly, reserve price was fixed at Rs.\r\n293. Two attempts were made to sale the shares. In the first attempt, Notice\r\nInviting Application (NIA) was published in daily edition of the Statesman\r\nand Bartaman on 4th of May, 2017 and the NIA was also uploaded in eauction site maintained by Government of India through NIC. It was\r\nuploaded in http://eauction.go.in and in www.benmilk.com inviting </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">expression of interest in the disinvestment of entire shareholding held by\r\nthe State in respondent no. 5. Only respondent no. 10 had submitted the bid,\r\nhence, the same was not accepted being the sole bidder and a decision was\r\ntaken to make another attempt to attract bidders. In the second attempt,\r\nnotice was uploaded in the NIC portal for e-auction on 28th of June, 2017\r\nand NIA inviting Expression of Interest (EOI) was also published in the\r\nnewspapers Statesman and Bartaman on 28th of June, 2017. The print-outs\r\nfrom the http://eauction.go.in and www.benmilk.com has been placed on\r\nrecord. In the second attempt also, the respondent no. 10 was the sole\r\nbidder who had quoted the bid price of Rs. 84,50,30,000/- as against the\r\nreserve price of Rs. 84,38,30,000/-. The bid submitted by the respondent no.\r\n10 was higher than the reserve price, therefore, the respondent no. 1 had\r\nresolved to accept it. It is also pointed out that one of the reason why the\r\nother bidders did not come forward was that the respondent no. 10 was\r\nalready having 53 % shares, therefore, even after purchasing 47 % shares,\r\nany other third party would have remained the minority share-holders. The\r\nabove sequence of event clearly reveal that the process of sale of 47 %\r\nshares of MDL adopted by the State cannot be termed as opaque or nontransparent process.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. In respect of the allegation that the respondent no. 10 had\r\npurchased 47 % shares of MDL in Rs. 85.5 crores but he had sold the 15 %\r\nshares to Mandala Swede SPV in Rs. 170 crores, it has been pointed out by\r\nthe learned Senior Counsel for the respondent no. 10 that the investment in\r\nthe respondent no. 10 by the Mandala Swede SPV had no connection with\r\nthe purchase of shares of the MDL by the respondent no. 10. He has pointed\r\nout that the respondent no. 10 had not sold the shares of MDL to the\r\nMandala Swede SPV but what was sold to the Mandala Swede SPV was\r\ndifferent. It has been disclosed in affidavit-in-opposition of the respondent\r\nno. 10 that the investment of the Mandala Swede SPV has been in the\r\nrespondent no. 10 and not in the MDL and that Mandala Swede SPV has\r\ninvested Rs. 10 crores in the respondent no. 10 in both Equity Shares and\r\nCompulsory Convertible Preference Shares (CCPS) which are convertible\r\ninto equity shares within 20 years from the date of allotment. Therefore, the\r\nexact percentage of equity stock to which Mandala Swede SPV would be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">entitled would be determined at the time of their exit depending on number\r\nof factors. It has also been disclosed that the respondent no. 10 has various\r\nbusiness activities which are not confined to the milk dairy business of the\r\nrespondent no. 5, MDL. Respondent no. 10 has diversified business having\r\nthe largest franchise in Parle Agro Private Limited and is responsible for\r\nsourcing, manufacturing, distributing and sale of its products in the\r\nterritories of West Bengal, Jharkhand, North-East. Respondent no. 10 has\r\nbig manufacturing unit at Barasat with an installed capacity of nearly 7 lakh\r\nlitres of fruit juice per day. It has capacities of banana riping at Barasat,\r\nSiliguri and Durgapur having an export business of Rs. 150 crores turnover\r\nof various value added agro products and is also engaged in manufacturing\r\nnoodles for ITC Limited on job work basis and is also packing, selling\r\nvarious ready to cook frozen food items such as green peas, sweet corn, etc.\r\nIn the aforesaid background, the comparison of value of shares of the\r\nrespondent no. 5, MDL, with the shares of the respondent no. 10 is not\r\njustified.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. Learned Counsel for the petitioner has placed reliance upon the\r\njudgments of the Hon’ble Supreme Court in the matter of Aggarwal &\r\nModi Enterprises (P) Ltd. (supra) and Reliance Telecom Limited and\r\nAnother (supra) in support of his submission that for fetching maximum\r\nprice, auction should have been held. This Court has already found that the\r\nsale of shares took place by inviting open bids, therefore, the principles laid\r\ndown in these judgments have not been flouted. He has also placed reliance <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">upon the judgment of the Hon’ble Supreme Court in the matter of Uflex\r\nLimited (supra) in support of the plea that the condition of tender should\r\nnot be tailor-made but this Court has already reached to the conclusion that\r\nthe condition of making non-refundable deposit of Rs. 10 lakhs was not\r\ntailor-made.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. Having regard to the above, we find that policy decision of the\r\nState to sell 47 % shares of respondent no. 5 MDL was neither illegal nor\r\narbitrary and State had also not adopted non-transparent or opaque <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">procedure for sale of shares, hence no case for interference in the present\r\nwrit petition is made out which is accordingly, dismissed.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2b9a02878d472294e95333fe8be0d249.png', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-13', 0, '', '', '2022-06-13 19:17:53', '2022-06-15 19:49:10');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1809, 'VDRK6KdsM2TQp8rNyfZomsEzx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'An offence under a special statute like Factories Act can also be an offence punishable under the Indian Penal Code if necessary ingredients are satisfied. Punjab and Haryana High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Dhanpreet Singh and another Vs State of Punjab.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRM-M 54097 of 2019 decided on 2 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Vinod S. Bhardwaj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The brief factual matrix as is necessary to appreciate the controversy\r\ninvolved in the present case is as under:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.1. The FIR in question had been registered on the allegations that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Parshotam Singh (non-petitioner) is the sole proprietor and owner of\r\nSidhu Industrial Corporation situated in Village Dhudiawal Baba\r\nDeep Singh Nagar, Near R.C.F. Hussainpur. His sons Dhanpreet\r\nSingh and Dilpreet Singh (petitioners- herein) are engaged in\r\nmanufacturing of the floor of the railway coaches on contract basis\r\nwith RCF Kapurthala. For the said purposes Parshotam Singh and his\r\nson Dhanpreet Singh have set up Bedding Press Plasma Soap, EOT\r\nCrane No.2, EOT Crane No.1 in their factory and employed 70-75\r\nlabourers. It was stated that the tenure of the machines and bedding\r\npress installed in the factory had already matured, but despite being\r\naware of the same, machinery was not replaced, thus endangering\r\nsafety of the labourers. It was also alleged that instead of appointing\r\nskilled workers in the factory, they are getting the work executed\r\nfrom un-skilled labourers by paying less to those who do not possess\r\nany sort of experience.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2.2. On the day of occurrence, the nut-bolt studs broke, due to which the\r\nheavy press weighing 4 quintal fell down injuring 3 workers.\r\nParshotam Singh-owner of the factory got the workers admitted in\r\nGovernment Hospital, Kapurthala where Kewal Singh and Balbir\r\nSingh died as a result of injuries sustained by them. Accordingly, a\r\ncase was registered against the owner of the factory Parshotam Singh\r\n(non-petitioner) son of Nagina Singh and his sons Dhanpreet Singh\r\nand Dilpreet Singh (petitioners herein).</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.3. Upon conclusion of investigation, final report under Section 173\r\nCrPC (Annexure P-1) was filed before the Court. Part of the bedding <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">machine, bedding plate of the length of 10 feet and 3 feet width with\r\nthickness of 3.5 inches weighing about 20 quintals along with two\r\nholding bolts about 4 inch thickness and holding and clumping bolts\r\nwere taken into possession.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.6. It was also pointed out that documents of incorporation of the sole\r\nproprietorship firm as well as also the GST registration etc of the\r\nfactories showed they were independent sole proprietorship units and\r\nthat there was no evidence on record to substantiate that the\r\npetitioners had any concern with the operation and affairs of the said\r\nunit. It was thus contended that there was nothing to substantiate a\r\nprima facie case against the petitioners herein.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The counsel appearing for the petitioners submitted that insofar as\r\npetitioner-Dhanpreet Singh is concerned, he has a separate proprietorship firm by\r\nthe name of Manjit Techno Fab, which is situated in Industrial Area II, Khor Rae\r\nBareli, Uttar Pradesh. The registration certificate under the GST was appended as\r\nAnnexure P-5. He further submits that petitioner-Dilpreet Singh runs a separate\r\nsole proprietorship firm by the name of Nagina Engineering Works having its\r\nseparate GST registration. The said proprietorship of petitioner-Dilpreet Singh is\r\nsituated in Village Dhudhianwal, Sultanpur Road, Kapurthala itself. The\r\nregistration certificate under the GST has been appended as Annexure P-6. Insofar\r\nas Sidhu Industrial Corporation is concerned (proprietorship where the incident\r\noccurred). </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Learned counsel appearing on behalf of the petitioners has\r\nvehemently argued that the petitioners are not employed in the factory Sidhu\r\nIndustrial Corporation and have their own sole proprietorship. Despite completion\r\nof investigation by the Police, there is no evidence collected by them to reflect as\r\nto how and under what manner the petitioners were responsible for the affairs of\r\nthe sole proprietorship owned, managed and operated by their father. It is also\r\nargued that there is no document to substantiate that the equipment installed at the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">premises was old and had outlived its life. It is contended that the accident in\r\nquestion could very well happen as a result of the workers not having distributed\r\nthe load properly and that as a fault of the labourer/workmen themselves, the\r\nequipment may have been damaged. He has further argued that there is no report\r\nby any technical person to substantiate about the fitness of the structure and that in\r\nthe absence of any such corroborative material, it cannot be perceived that the\r\nmachine had to be replaced for having outlived its life or being outdated.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. The specific case of the petitioners is that they have their own\r\nproprietorship firm and that they are neither the employees nor manager or\r\npartners in the factory where the occurrence took place. The said aspect is not\r\ndenied by any cogent material available on record, wherefrom, it could have been\r\nascertained that the petitioners were in any manner in-charge of the operations of\r\nthe aforesaid proprietorship as well. The State has chosen only to make an\r\naverment in its reply that insofar as the role and responsibility of the petitioners is\r\nconcerned, the petitioners were looking after and supervising the work and\r\nmachinery of Sidhu Industrial Corporation and that the petitioners were aware\r\nabout the conditions of the machines and power press. There is no reference to any\r\nmaterial on the basis whereof such awareness can be ascertained. In addition\r\nthereto, it has also not been pointed out as to the involvement of the petitioners\r\nand their capacity in the industrial establishment. A person cannot be held liable\r\nfor each and every criminal act that may have occurred on any premises that are\r\nheld by the family. A person can be held accountable only for the accidents that\r\ntake place on his premises and where his participation and role is fully established <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as an occupier or manager.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. It is evident that despite noticing that Sidhu Industrial Corporation is\r\na proprietorship firm, however, the Revisional Court failed to refer to any material\r\ncollected by the investigating agency on the basis whereof the petitioners could be\r\nstated to be in-charge of the affairs of the said proprietorship as well. Contrary to\r\nthe documentary evidence placed on record, Additional Sessions Judge,\r\nKapurthala, held that insofar as the plea regarding whether the petitioners are\r\nowners/partners of the firm is concerned, the same is a debatable issue. The\r\naforesaid finding is contrary to the documents placed on record. Once the\r\nestablished case of the prosecution is that the Sidhu Industrial Corporation was a\r\nsole proprietorship firm, there is no occasion of the petitioners being partners <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">therein. Besides, the final report does not make a reference to any material or\r\ndocumentary evidence that would reflect that the industrial activity in the\r\nestablishment was supervised or controlled by the petitioners. The responsibility\r\nof a person has to be real and actual and not by an inference. A person cannot be\r\nheld responsible for affairs of a company merely because he/she happens to be in\r\nclose relations or proximity or family of the owner. To attract a penal offence of\r\nbeing rash or negligent, it must necessarily require that the person being in-charge\r\nof the offence was expected to adhere to a standard of caution. If there is no\r\nstatutory obligation or requirement fastened with an accused to comply with the\r\nstandard of caution, such person cannot be prosecuted for default thereof. The\r\nproximity of a person to the principal accused being member of the family and by\r\ncarrying similar operations through no independent establishment would not\r\nrender them liable for the lapses/offences that may stand committed in the factory\r\npremises of their father.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">28. The submission of the State that the role and responsibility of the\r\npetitioners is to be seen at the stage of trial despite absence of any material to\r\nshow their responsibility in the premises in question cannot be perpetuated and\r\nprotected in a manner that would be onerous and amount to procrastination. The\r\npetitioners cannot be forced to undergo a criminal trial despite the absence of\r\nmaterial establishing their involvement in the operations of the factory. Even\r\nthough the law holds that at the stage of framing of a charge, only a prima facie\r\ncase is required to be made out and that the material to be relied in defence cannot\r\nbe the basis of setting aside a charge framed against an accused. However, the\r\nHon\'ble Supreme Court held in the matter of Rukmini Narvekar Vs. Vijaya\r\nSatardekar, Criminal Appeal Nos.1576-1577 of 2008 decided on 03.10.2008 that </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">even though at the stage of framing of a charge, a Court cannot consider defence\r\nmaterial, however, in some cases the Court is justified in looking into material\r\nproduced by the defence at the time of framing of the charge if such material\r\nconvincingly establishes that the whole prosecution version is totally absurd,\r\npreposterous or concocted.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. There is no material pointed out by the prosecution showing the\r\ninvolvement of the petitioners in running the affairs of Sidhu Industrial\r\nCorporation nor any such material was referred to during the course of arguments.\r\nEven the order passed by the Additional Sessions Judge, Kapurthala does not refer\r\nto any prima facie evidence against the petitioners while dismissing the revision\r\npetition and merely observes that the prosecution in its report under Section 173 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">CrPC established the same. The report under Section 173 CrPC, appended as\r\nAnnexure P-1 with the instant petition, is also not indicative of the evidence\r\nestablishing involvement of the petitioners. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>31. It is further evident from perusal of the final report that the following\r\nwitnesses and the nature of their testimony has been relied upon by the\r\nprosecution to prove its case. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Perusal of the same shows that there is no testimony of any expert\r\nestablished that the machinery deployed for use at the premises was outdated or\r\nwas sub-standard having outlived its life. Moreover, there is no testimony of any\r\nwitness or expert to determine the exact cause resulting in the accident and as to\r\nwhether it was on account of defect of the machinery or attributable to any acts\r\ncommitted by the workmen deployed on the machinery. Besides, even as per the\r\ndocuments appended along with the final report, there is no such opinion. A\r\ncriminal liability cannot be fastened against an accused merely on account of an\r\nincident. Culpable liability arises on account of the said incident having occurred\r\nas a result of rashness or negligence on the part of an accused. Unless existence of\r\nsaid circumstances is established against the petitioners on the strength of the\r\ndocument forming part of the investigation, a criminal liability cannot be attracted\r\nautomatically.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>32. In addition to the above, it also has to be established by the\r\nprosecution that the person being charged of commission of the offence was the\r\nactual person responsible to exercise that mandatory application of due care and\r\ncaution and that the incident in question had taken place on account of the failure\r\non the part of such person to implement care. There can be no presumption in law\r\nthat merely because the petitioners happen to be sons of the owner of the sole\r\nproprietorship, hence they were also incharge of the operations of the sole\r\nproprietorship firm. Being aware of the operations of a firm does not make them\r\nresponsible and accountable for the affairs of the said firm. They can not\r\nordinarily be called upon to undergo rigors of protracted criminal trial only on the\r\nstrength of their awareness and despite absence of any evidence to establish their\r\nresponsibility.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>33. In view of the circumstances noticed above and in light of the\r\nprecedent judgements of the Hon\'ble Supreme Court, it is apparent that the\r\nRevisional Court has failed to appreciate the submissions advanced by the\r\npetitioners and has chosen to not address the admissibility of the evidence\r\navailable along with the final report and has rather proceeded on a presumption\r\nthat all such aspects shall be examined at the stage of trial. Forcing a person to\r\nundergo criminal prosecution without noticing as to whether any criminal case is\r\nmade out against a person on the strength of the material and evidence collected\r\nby the prosecution itself is a perpetuation of injustice. A Court of law cannot\r\nrefuse to examine the existence of prima facie evidence and as to whether such\r\nevidence would support the continuation of proceedings against the petitioner or\r\nnot on a pretext that such issue is to be examined at the stage of trial. A plea of\r\ndefence cannot be looked into by the Revisional Court especially when such plea\r\nis sought to be established by any other evidence or document which is yet to be\r\nproved in accordance with law. The said aspect however does not apply to the\r\nevidence collected by the Investigating Agency and sought to be relied upon by\r\nthe agency for proving its case against an accused </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">34. In this view of the matter, I find that the Revisional Court has not\r\nproperly appreciated the evidence available on record and its admissibility in law\r\nalong with necessary ingredients required for prosecuting a person for commission\r\nof the offence in question. Resultantly, the present petition is allowed and the\r\njudgement dated 08.11.2019 (Annexure P-9) passed by Additional Sessions Judge,\r\nKapurthala and the order dated 16.07.2019 (Annexure P-2) passed by the SubDivisional Judicial Magistrate, Sultanpur Lodhi framing charge against the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioners under Section 304-A IPC are set aside qua the petitioners and the\r\npetitioners are discharged.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'db756b8557047ed3685e98d55526cc34.jpeg', '2ac3830c6d926838acf62b8c95caa7f4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-17', 1, '', '', '2022-06-13 19:57:17', '2022-06-17 06:26:05'),
(1807, 'X6pmH3CQaAwUGc6TWV0Qfif62', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘’There cannot be any compromise with the merits and/or quality of Medical Education, which may ultimately affect the Public Health’’. Supreme Court while upholding Govt decision not to have Special Stray Round of counselling. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Dr. Atharv Tungatkar and others Vs The Medical Consulting Committee and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 393 of 2022 decided on 10 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice Aniruddha Bose.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. In Writ Petition (C) No. 393 of 2022, one additional prayer is made\r\nto issue an appropriate writ, direction or order directing the respondent\r\nNos. 1 and 2 – The Medical Consulting Committee and the Union of\r\nIndia to revert the Medical P.G. seats remaining vacant after the AIQ\r\nstray vacancy round as regards the admissions conducted pursuant to\r\nNEET-PG-2021 examination to the State Quotas, for being allotted\r\nthrough State Mop-Up Rounds.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The petitioners of Special Leave Petition (C) No. 10395 of 2022\r\nand Special Leave Petition (C) No. 10539 of 2022 approached the\r\nrespective High Courts for the very reliefs, which are now sought in the\r\naforesaid writ petitions, namely directing the respondents to conduct a\r\nSpecial Stray Round of counselling so as to allow them to participate for\r\nthe vacant seats, which are available after the conduct of stray vacancy\r\nround of AIQ. By the impugned orders, the respective High Courts have\r\ndismissed the writ petitions, hence the original writ petitioners have\r\npreferred the present special leave petitions.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">5. The dispute is with respect to the admissions for NEET-PG-2021.\r\nAround 40,000 seats were available for NEET-PG examination, which\r\nincluded the clinical as well as non-clinical seats. 92,000 candidates/\r\ndoctors were initially eligible for examination for the said seats. </span><span style=\"font-size: 12pt;\">However, subsequently, the percentage was lowered by communication\r\ndated 12.05.2022 and another 25,000 candidates became eligible.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>5.1 The NEET-PG examination was conducted on 11.09.2021. The\r\nresult was declared on 28.09.2021. As per the earlier counselling\r\nscheme, there were two rounds of counselling for All India Seats as well\r\nas State Quotas seats respectively. However, as per the modified\r\ncounselling scheme, counselling is to be carried in four rounds and no\r\nseats were to be reverted to States. These four rounds were AIQ Round\r\n1, AIQ Round 2, AIQ Mop-up Round and AIQ Stray Vacancy Round.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>5.2 That for NEET-PG-2021, Round 1 was held on 12.01.2022, Round\r\n2 was held on 05.02.2022, Mop-Up Round was held on 14.04.2022 and\r\nfinal Stray Round started on 28.04.2022 and ended on 07.05.2022. At\r\nthe end of the four rounds of counselling, each for All India Quota and\r\nState Quotas (in all eight rounds of counselling) and thereafter one\r\nanother round of counselling was conducted, and still approximately\r\n1456 seats remain vacant.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">5.3 The respective petitioners, who earlier participated in all the\r\ncounsellings and could not get the admissions have now approached\r\nthis Court by way of present writ petitions/special leave petitions praying\r\nfor Special Stray Round of counselling with respect to the remaining\r\n1456 seats remained vacant and to allow them to participate for the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">vacant seats, which are available after the conduct of the Stray vacancy\r\nround of AIQ.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8.1 It is vehemently submitted by Shri Balbir Singh, learned ASG that\r\nin the present case, the dispute is with respect to the NEET-PG-2021\r\nseats. It is submitted that in the present case, four rounds of counselling\r\neach for All India Quota and State’s Quotas have been carried out and\r\nout of 40,000 seats only 1456 seats have remained vacant after in all\r\nnine rounds of counselling. It is submitted that out of 1456 seats\r\nremaining vacant, approximately, 1100 seats are with respect to nonclinical courses and the remaining seats are with respect to the private\r\ncolleges and with respect to the clinical courses. It is submitted that all\r\nthose seats have remained vacant, which usually remain vacant every\r\nyear as they are no takers and/or they can be said to be rejected seats.\r\nIt is submitted that all those seats remain vacant every year and, in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">many cases, they are not opted by the concerned candidate as nobody\r\nlike to opt for non-clinical courses and even with respect to some of the\r\nclinical courses, as there is a high fee in the private colleges, they are no\r\ntakers and therefore, some of the seats are remaining vacant every year.\r\nIt is submitted that therefore even after one additional round of\r\ncounselling is carried out as requested by the petitioners, in that case\r\nalso the seats are bound to remain vacant. It is submitted that there\r\ncannot be endless exercise of conducting counseling one after another\r\ntill all the seats are filled in. It is submitted that after the nine rounds of\r\ncounselling when some of the seats have remained vacant and\r\nconsidering the fact that the PG courses (clinical) is three-years course,\r\nout of which, for whatever reason, more than one year had gone and\r\nthere cannot be any compromise so far as the Medical Education is\r\nconcerned and considering the fact that the admission process for\r\nNEET-PG-2022 has already begun and the counselling for NEET-PG2022 is to begin/start in July, 2022, a conscious decision has been taken\r\nnot to conduct one another Special Stray Round of counselling.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8.2 It is further submitted on behalf of the Union of India and the\r\nMedical Counselling Committee that the last round of counselling ended\r\non 07.05.2022. That thereafter, the entire software mechanism has\r\nbeen closed and the security deposit has also been refunded to the\r\neligible candidates. It is submitted that a significant proportion of seats, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which remain vacant are in non-clinical courses and these are no taker\r\nseats, which seats generally remain vacant. It is submitted that every\r\nyear, some number of seats remain vacant. It is submitted that the\r\nidentical question came to be considered by this Court in the case of\r\nEducation Promotion Society for India and Anr. Vs. Union of India\r\nand Ors., (2019) 7 SCC 38. It is submitted that before this Hon’ble\r\nCourt, the petitioners prayed for general extension of time and prayed for\r\nadditional Mop-Up Round of counselling on the ground that a large\r\nnumber of seats for PG courses were lying vacant. It is submitted that in\r\nthe said decision after taking note of the fact that every year, large\r\nnumber of non-clinical seats remain vacant because many graduate\r\ndoctors do not want to do postgraduation in non-clinical subjects, it is\r\nobserved that merely because the seats are lying vacant is not a ground\r\nto grant extension of time and grant further opportunity to fill up vacant\r\nseats. It is submitted that in the aforesaid decision, it is observed that the\r\nschedule must be followed and if the violation of schedule is permitted\r\nand extension is granted, it will be opening a pandora’s box and the\r\nwhole purpose of fixing a time schedule and laying down a regime which\r\nstrictly adheres to the time schedule will be defeated.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. At the outset, it is required to be noted that in the present case, the\r\ndispute is with respect to the NEET-PG-2021 and the time schedule for\r\nthe approved counselling has been fixed pursuant to the direction issued\r\nby this Court and/or approved by this Court. Ordinarily, the first round of\r\ncounselling in PG courses begins in the month of March of every\r\nacademic year and subsequently the academic session begins from the\r\nmonth of May of every academic year. However, NEET-PG-2021\r\nexamination was delayed due to the third wave of COVID-19 pandemic\r\nand various litigations across the nation implementing the 27% OBC\r\nreservation in AIQ seats.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.1 At this stage, it is required to be noted that as per the earlier\r\ncounselling policy, only two rounds of counselling were being held for All\r\nIndia Quota seats and State Quotas. The modified scheme of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">counselling for Academic Year 2021-2022 and onwards was submitted\r\nbefore this Court in Special Leave Petition (C) No.10487 of 2021 and\r\nthis Court approved the same. As per the modified scheme of\r\ncounselling, this time four rounds of counselling have been undertaken\r\nfor All India Quota seats as well as States’ Quotas each. That thereafter\r\none another round of counselling was conducted pursuant to the\r\nsubsequent order passed by this Court, as approximately 146 seats\r\nwere added. The NEET-PG-2021 counselling commenced on\r\n12.01.2022 and after completion of the four rounds of counselling for All\r\nIndia Quota seats and State Quotas (in all eight rounds of counselling),\r\nout of 40,000 seats, 1456 seats have remained vacant. It appears that\r\nout of 1456 seats approximately more than 1100 seats are with respect\r\nto the non-clinical courses and the remaining are with respect to the\r\nclinical courses and all the seats are with respect to the private\r\ninstitutions. The respective petitioners are claiming admission on the\r\nremaining vacant seats and have prayed to direct the respondents to\r\nconduct a Special Stray Round of counselling. The main submission on\r\nbehalf of the petitioners, as noted hereinabove, is that as large number\r\nof seats have remained vacant, the same be filled in by conducting\r\nadditional/Special Stray Round of counselling for the seats remaining\r\nvacant, which are mostly non-clinical courses, which remained even\r\nafter eight or nine rounds of counselling. The students cannot still pray for admission on those seats remaining vacant after approximately one\r\nyear of academic session and remaining vacant after eight or nine\r\nrounds of counselling.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.3 In the case of Education Promotion Society for India and Anr.\r\n(supra), the writ petitioners like the petitioners in the present case\r\nprayed for extension of time schedule and prayed for the additional\r\ncounselling. This Court negated the same. This Court also took the\r\nnote of the fact that every year large number of non-clinical seats remain\r\nvacant because many graduate doctors do not want to do\r\npostgraduation in non-clinical subjects. Thereafter, it is observed and\r\nheld that merely because the seats are lying vacant, is not a ground to\r\ngrant extension of time and grant further opportunity to fill up vacant\r\nseats.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.4 Applying the law laid down by this Court in the aforesaid two\r\ndecisions to the facts of the case on hand and when the Medical\r\nCounselling Committee and the Union of India have to adhere to the\r\ntime schedule for completing the admission process and when the\r\ncurrent admission of NEET-PG-2021 is already behind time schedule\r\nand ever after conducting eight to nine rounds of counselling, still some\r\nseats, which are mainly non-clinical courses seats have remained vacant\r\nand thereafter when a conscious decision is taken by the Union\r\nGovernment/the Medical Counselling Committee, not to conduct a\r\nfurther Special Stray Round of counselling, it cannot be said that the\r\nsame is arbitrary. The decision of the Union Government and the\r\nMedical Counselling Committee not to have Special Stray Round of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">counselling is in the interest of Medical Education and Public Health.\r\nThere cannot be any compromise with the merits and/or quality of\r\nMedical Education, which may ultimately affect the Public Health.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.6 Apart from the fact that after closure of the last round of\r\ncounselling on 07.05.2022, the entire software mechanism has been\r\nclosed and the security deposit is refunded to the eligible candidates, it\r\nis to be noted that the admission process for NEET-PG-2022 has\r\nalready begun, the results for the NEET-PG-2022 has been announced\r\non 01.06.2022 and as per the time schedule, the counselling process is\r\ngoing to start in July, 2022. Therefore, if one additional Special Stray\r\nRound of counselling is conducted now, as prayed, in that case, it may\r\naffect the admission process for NEET-PG-2022.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.7 At the cost of repetition, it is observed and held that even after\r\neight to nine rounds of counselling, out of 40,000 seats, 1456 seats have\r\nremained vacant, out of which approximately, more than 1100 seats are\r\nnon-clinical seats, which every year remain vacant, of which the judicial <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">notice has been taken by this Court in the case of Education\r\nPromotion Society for India and Anr. (supra)\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11. In view of the above and for the reasons stated above, the\r\npetitioners are not entitled to any relief of writ of Mandamus directing the\r\nrespondents to conduct a Special Stray Round of counselling for filling\r\nup the remaining vacant seats of NEET-PG-2021. Granting of such\r\nrelief now may affect the medical education and ultimately the public\r\nhealth as observed hereinabove.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. Under the circumstances, both these writ petitions and the special\r\nleave petitions deserve to be dismissed and are accordingly dismissed.\r\nHowever, in the facts and circumstances of the case, there shall be no\r\norder as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0e6cd62e67cdd59d7f42fda8d588a056.jpeg', 'a92682cbc233365a025f86e8c8439f46.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-16', 1, '', '', '2022-06-13 18:18:12', '2022-06-16 13:57:21'),
(1767, 'wjNiFzZQ4HQ9gQX1OlCL4RTBr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Judges some times make law if the statutes made by the Parliament fall short of meeting the requirements of the time\'\'. Karnataka High Court while awarding just compensation in motor vehicle case.  ', '<p><b>New India Assurance Company Ltd vs Abudl and others. <br>Miscellaneous First Appeal 103807 of 2016 decided on 27 May 2022<br>Justice Krishna S Dixit and Justice P. Krishna Bhat. </b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">21.<span style=\"white-space:pre\">	</span>In the background of the  contentions  advanced by the learned counsel for the Insurance Company, a  question now arises as to the guiding philosophy which the learned Tribunals should bear in the inner  recesses of mind  as the beacon light to determine the appropriate compensation to be awarded under the said head. The materials produced before the learned Tribunal show that the claimant was running a tailoring business, which undeniably requires an able body and more particularly,  a  fully functional pair of lower limbs. It would be harsh, unrealistic, nay, almost nihilistic on the part of the Tribunal to ignore the philosophy of the constitution of India in the process of their decision making which sets great store by the dignity of human-being. The “life” as encapsulated in the Indian Constitution does not merely view human life as a conglomeration or an assemblage or the cobbling together of the individual constituent parts but as an integrated core which has a purpose, content and dignity. Any disability, therefore, to any limb of the body which has a role to play in the functional-economic sense indubitably causes  its  effect on the whole body warranting curial intervention in its reparative and recompensing role. </b><b><br></b></p><p><b>22.<span style=\"white-space:pre\">	</span>The learned counsel for the Insurance Company was vehement in his submission that the component of loss  of future prospects can be factored in while awarding compensation under the head of loss of future earning capacity where disability arises due to amputation alone and he was insistent that the ratio of the decision of Constitution Bench of the  Hon’ble  Supreme  Court  in  National  Insurance Company  Limited  v.  Pranay  Sethi  and others3, in this behalf should be extended only to such cases of personal injury where physical disability has resulted due to amputation of the limbs. The above contention requires to be noticed only to be rejected.</b></p><p><b>26.<span style=\"white-space:pre\">	</span>What is the true basis for incorporating ‘loss of future prospects’ in computing compensation under the head of loss of future earning capacity? Is it because courts have  to make a distinction between various classes of injuries resulting in disabilities having a bearing on the earning capacity and thereafter, mark the cases only of disability resulting from amputation of limbs for incorporating an additional component of ‘loss of future prospects’ into the computational process of loss of future income? </b></p><p><b>27.<span style=\"white-space:pre\">	</span>It is thus evident that this component of ‘loss of future prospects’ is a forensic tool forged by the Supreme Court to off-set the adverse effect of  imponderable vagaries of inflation on the assessment of loss of future earning. To  link this component only to disability arising from amputation of limbs defies logic and has no sanction of law. It is undoubtedly true that it is no part of the statutory law governing the field of award of compensation in motor vehicle accident cases. But, Courts are enjoined under law to award “just compensation” and no compensation can be regarded as just unless law is capable of reinventing itself by making proper adjustments as the “needs of the time require”. Judges some times make law if the statutes made  by the Parliament fall short of meeting the requirements of  the time.</b></p><p><b>34.<span style=\"white-space:pre\">	</span>In view of the above, the claimant is entitled to total compensation of Rs.6,11,000/- as against Rs.5,23,000/- awarded by the learned Tribunal. The total compensation will carry interest @ 9% per annum with effect from 26.07.2016 i.e., the date of closure of the evidence as against the date of claim petition awarded by the Tribunal.</b></p><p><b>35.<span style=\"white-space:pre\">	</span>In the result, both appeals are allowed in part.</b></p><p><b>36.<span style=\"white-space:pre\">	</span>The amount in deposit, if any, shall be transmitted to the jurisdictional Tribunal for disbursement, forthwith.</b></p><p><b><br></b></p><p><br></p>', 'b05b6fa528b69ee5df899af27a706db2.JPG', 'af4a746360755bfe2dd08e39d5e30c41.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-04', 1, '', '', '2022-06-03 02:42:19', '2022-06-04 03:22:32'),
(1776, 'rY4OTporOlYXcYAzXjPlYT69s', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Central Government bans \'Pyramid Scheme\' in respect of goods and services. ', '<p><b>The Central Government,&nbsp;Department of Consumer Affairs has framed&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Consumer Protection (Direct Selling) Rules, 2021 which ban&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Pyramid Scheme and&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">money circulation scheme. <i>(See PDF in Hindi and English).</i></span></b></p><p><b>Rule 3&nbsp;</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(i) defines \"Pyramid Scheme\" to mean a multi layered network of subscribers to a scheme formed by subscribers \r\nenrolling one or more subscribers in order to receive any benefit, directly or indirectly, as a result of \r\nenrolment or action or performance of additional subscribers to the scheme, in which the subscribers \r\nenrolling further subscribers occupy a higher position and the enrolled subscribers a lower position, \r\nresulting in a multi-layered network of subscribers with successive enrolments:</b></span></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rule&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10 which prohibits Pyramid Scheme and money circulation scheme says that no direct selling entity or direct \r\nseller shall––<br>(a) promote a Pyramid Scheme or enroll any person to such scheme or participate in such arrangement in \r\nany manner whatsoever in the garb of doing direct selling business;\r\n<br>(b) participate in money circulation scheme in the garb of doing direct selling business.</span></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Under Rule 11, the State Government is mandated to&nbsp;</span></b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>set up a mechanism to monitor or supervise the activities of \r\ndirect sellers and direct selling entity.</b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Apart from the above, the Rules also deal with&nbsp;</b></span><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Mandatory maintenance of records,&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Obligations of direct selling entity,&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Obligations of direct seller,&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Duties of direct selling entity and direct seller,&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Application of e-commerce rules.</span></b></p>', 'd5261c73f96612b3589dd28f99b20709.png', '9928b19e8963adac7955f25fda5d0fef.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-04', 1, '', '', '2022-06-04 15:34:48', '2022-06-04 15:34:48');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1768, 'Nqbqtdvd2e8xgsRt8wrHHQfwh', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicle Tribunal should adopt philosophy of the Constitution of India on ‘life’ and ‘dignity of human-being’ in assessing loss of future prospects to award just compensation. Karnataka High Court. ', '<p><b>New India Assurance Company Ltd vs Abdul and others. <br>Miscellaneous First Appeal 103835 of 2016 decided on 27 May 2022<br>Justice Krishna S Dixit and Justice P. Krishna Bhat. </b></p><p><b>21.<span style=\"white-space:pre\">	</span>In the background of the  contentions  advanced by the learned counsel for the Insurance Company, a  question now arises as to the guiding philosophy which the learned Tribunals should bear in the inner  recesses of mind  as the beacon light to determine the appropriate compensation to be awarded under the said head. The materials produced before the learned Tribunal show that the claimant was running a tailoring business, which undeniably requires an able body and more particularly,  a  fully functional pair of lower limbs. It would be harsh, unrealistic, nay, almost nihilistic on the part of the Tribunal to ignore the philosophy of the constitution of India in the process of their decision making which sets great store by the dignity of human-being. The “life” as encapsulated in the Indian Constitution does not merely view human life as a conglomeration or an assemblage or the cobbling together of the individual constituent parts but as an integrated core which has a purpose, content and dignity. Any disability, therefore, to any limb of the body which has a role to play in the functional-economic sense indubitably causes  its  effect on the whole body warranting curial intervention in its reparative and recompensing role. </b></p><p><b>22.<span style=\"white-space:pre\">	</span>The learned counsel for the Insurance Company was vehement in his submission that the component of loss  of future prospects can be factored in while awarding compensation under the head of loss of future earning capacity where disability arises due to amputation alone and he was insistent that the ratio of the decision of Constitution Bench of the  Hon’ble  Supreme  Court  in  National  Insurance Company  Limited  v.  Pranay  Sethi  and others3, in this behalf should be extended only to such cases of personal injury where physical disability has resulted due to amputation of the limbs. The above contention requires to be noticed only to be rejected.</b></p><p><b>26.<span style=\"white-space:pre\">	</span>What is the true basis for incorporating ‘loss of future prospects’ in computing compensation under the head of loss of future earning capacity? Is it because courts have  to make a distinction between various classes of injuries resulting in disabilities having a bearing on the earning capacity and thereafter, mark the cases only of disability resulting from amputation of limbs for incorporating an additional component of ‘loss of future prospects’ into the computational process of loss of future income? </b></p><p><b>27.<span style=\"white-space:pre\">	</span>It is thus evident that this component of ‘loss of future prospects’ is a forensic tool forged by the Supreme Court to off-set the adverse effect of  imponderable vagaries of inflation on the assessment of loss of future earning. To  link this component only to disability arising from amputation of limbs defies logic and has no sanction of law. It is undoubtedly true that it is no part of the statutory law governing the field of award of compensation in motor vehicle accident cases. But, Courts are enjoined under law to award “just compensation” and no compensation can be regarded as just unless law is capable of reinventing itself by making proper adjustments as the “needs of the time require”. Judges some times make law if the statutes made  by the Parliament fall short of meeting the requirements of  the time.</b></p><p><b>34.<span style=\"white-space:pre\">	</span>In view of the above, the claimant is entitled to total compensation of Rs.6,11,000/- as against Rs.5,23,000/- awarded by the learned Tribunal. The total compensation will carry interest @ 9% per annum with effect from 26.07.2016 i.e., the date of closure of the evidence as against the date of claim petition awarded by the Tribunal.</b></p><p><b>35.<span style=\"white-space:pre\">	</span>In the result, both appeals are allowed in part.</b></p><p><b>36.<span style=\"white-space:pre\">	</span>The amount in deposit, if any, shall be transmitted to the jurisdictional Tribunal for disbursement, forthwith.</b></p><p><b><br></b></p><p><br></p>', '5e5e4e31f13937ef36c2b4fb897bcbb0.JPG', 'd59378d88174528a542ab493c6a0c54c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-03', 1, '', '', '2022-06-03 02:50:42', '2022-06-03 03:28:24'),
(1771, 'OJzfHKPWEbHg0yDUXfAEiIcWa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'In proceedings under Sections 107 and 145 of the Criminal Procedure Code, the Executive Magistrate cannot enter into the question of determination of the title of the property. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Muraru Mirchandani Vs State and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.M.C. 2611 of 2021 decided on 2 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Asha Menon.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioner states that he is engaged in the business of real estate.\r\nThe facts as pleaded by the petitioner are that property bearing bearing No. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">S-94, Panchsheel Park, New Delhi, measuring 499 square yards was leased\r\nby the Delhi Development Authority (for short, “DDA”) to late Sh.\r\nSurender Kumar Sardana, vide Lease Deed dated 08th December, 1967,\r\nwho died on 5th April, 2011, leaving behind his siblings, namely, Jitender\r\nSardana (since deceased) respondent no. 3 herein, Sushma Diwan, Sushila\r\nArora (since deceased) and Pushpa Mendiratta, as his legal heirs.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. While the respondent no.3 approached the DDA on 2nd August, 2011\r\nfor mutation of the property in favour of the surviving legal heirs of Sh.\r\nSurender Kumar Sardana, a complaint was filed by the respondent No.2\r\nclaiming to have purchased the property from Sh. Surender Kumar Sardana\r\nand being in possession of all original documents. The DDA vide letter\r\ndated 18\r\nth November, 2011 intimated the respondent No.3 that no action\r\ncould be taken because of the said complaint. The respondent no.3 filed a\r\npolice complaint alleging that the original documents had been stolen by a\r\nservant.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. Further, in January, 2012, the respondent no.3 entered into a\r\nMemorandum of Understanding (MOU) on behalf of himself and his\r\nsiblings with the petitioner for sale of the property for a total sale\r\nconsideration of Rs.19 crores. A sum of Rs.5 lakhs was also paid to these\r\npersons in cash. An Agreement to Sell was also executed on 11th April,\r\n2012 by the respondent no.3, on behalf of himself and Sushma Diwan and\r\nSushila Arora for the 3/4th share in the property. In May, 2012, it was\r\ninformed to the petitioner by the respondent no.3 that the sale could not be\r\nprocessed further as Ms.Sangeeta Bhambani, one of the daughters of his\r\npre-deceased sister, had filed a suit for partition, being CS(OS) 350/2012, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">before this court and on 20th April, 2012, the respondent No.3 had been\r\nrestrained from disposing of, selling, mortgaging, or parting with\r\npossession or in any way transferring the said property.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>5. Since that suit was dismissed on 27th March, 2014, the respondent\r\nNo.3 once again informed the petitioner that he would be moving forward\r\nto put into effect the Agreement to Sell. In the meantime, the respondent\r\nNo.2 had filed an I.A. No.538/2014 for impleadment in the said suit as the\r\nrightful owner of the property, which came as a complete surprise to the\r\npetitioner. Therefore, he filed a suit for specific performance, declaration\r\nand permanent injunction against the respondent No.3 being CS(OS)\r\n1081/2014 in this court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. The grievance of the petitioner is that after the dismissal of the\r\nrevision petition against the said order of the SDM by the learned District\r\nand Sessions Judge on 10th November, 2017, the respondent No.2 filed a\r\nfresh application on 10th August, 2021 praying that the property be desealed, also praying that the possession be handed over to him. The SDM\r\npassed the impugned Notice dated 8th September, 2021, issuing Notice to\r\nthe respondent no.3 and Sh. Praveen Chauhan (Advocate), to appear before\r\nher, also intimating the petitioner of the filing of the application for desealing and handing over of the possession, by the respondent No.2.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. This, according to Mr. Vishal Gosain, learned counsel for the\r\npetitioner, was completely erroneous inasmuch as the SDM had vide\r\nprevious order dated 19th September, 2016, closed the proceedings in view <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the orders in the Civil Suit. When civil proceedings were pending, the\r\nSDM could not have revived the question of de-sealing.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. In response, Mr. Ajay Bahl, learned counsel for the respondent No.2\r\ncontended that no doubt the civil suit was pending, being CS(OS)\r\n1081/2014, but not even summons had been issued to the respondent No.2\r\nin that case. Moreover, the Coordinate Bench of this Court had issued no\r\ninjunction against the respondent No.2, who was the defendant No.5 in that\r\nsuit. As such, the respondent No.2 was well within his rights to have\r\nmoved the SDM for de-sealing and handing over of the possession to him,\r\nbeing lawfully entitled to it.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. When a report is received by the Magistrate that there is an\r\napprehension of breach of peace and property is involved, the Magistrate\r\nonly makes an inquiry for the limited purpose of the determination of\r\npossession of the property in dispute, in no way entering into the question\r\nof determination of the title of the property.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. If there is any question of title, then it is only a civil court that can\r\ndecide it. The SDM must abide by the determination of the inter se rights\r\nof parties, whether interim or final, by the civil court. In case where despite\r\nthe civil case pending and orders being passed by the civil court therein,\r\nthere was a threat to breach of peace, then proceeding would be initiated\r\nunder Section 107 and not under Section 145 Cr.P.C.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. There is a finality to the orders of the SDM dated 19th August, 2016,\r\ndespite which the respondent No.2 moved an application for de-sealing and\r\nhanding over possession of the property in question. The SDM has not\r\nobserved the existence of an emergent ground of disruption of public\r\npeace, which may have justified the re-opening of the issue, though, once\r\nagain, the provision to be invoked in that event was under Section 107\r\nCr.P.C..\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. The SDM noted the previous order in para No.2 of the impugned\r\nNotice, despite which, notice was issued on the application of the\r\nrespondent No.2. Further, vide the first order dated 19th August, 2016, the\r\nparties were permitted to produce the civil courts’ orders (High Court or\r\nDistrict Court), when further action was required, but in this instance, the\r\nSDM proceeded with the application even without an order of the court.\r\nThus, the SDM committed the second error by issuing the impugned notice\r\neven without the production of any order of the civil court determining the\r\nrights either by an interim order or the final order. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. The action taken by the SDM being completely in violation of the\r\nlaw and being a perverse exercise of powers, this Court, in order to prevent\r\nthe abuse of the process of court, considers it appropriate to quash the\r\nimpugned Notice dated 8th September, 2021. The Notice is accordingly\r\nquashed.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. It will be open to the parties to seek appropriate reliefs from the civil\r\ncourts in seisin of the civil suits and produce such orders before the SDM,\r\nif the civil court finds one of them entitled to seek the desealing/possession.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. The petition stands disposed of, along with the pending application. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '505bf602ca7c02f9f2d422ca4dadb016.png', '23b7c39546df50692183b84b6800f354.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-07', 1, '', '', '2022-06-03 17:14:14', '2022-06-07 06:23:35'),
(1769, 'dAxQIBxxCMKrPtp8yAL034R4p', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'If search and seizure effected pursuant to a FIR disclose a different distinct offence, there is no bar for registration of a second FIR even though the first FIR is quashed by the Court. Karnataka High Court.', '<p><span style=\"font-weight: bolder;\">Gangadhara V. Maddikeri, vs State of Karnataka&nbsp;<br></span><b>Criminal Revision Petition&nbsp;</b><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">269/2019 decided on 24 May 2022<br>Justice Sreenivas Harish Kumar</span></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8.<span style=\"white-space:pre\">	</span>I have considered the rival contentions.&nbsp; It is not in dispute that FIR in&nbsp; Crime&nbsp; No.&nbsp; 19 /2013 was registered after conducting search&nbsp; in&nbsp; the&nbsp; house and the office of the accused, and after seizing the bank locker. It is a settled principle of law that there can be only one FIR for one transaction disclosing commission of one or more offences, and this is the principle found in T.T.Antony, Amitbhai Anilchandra Shah and Usha R Patwari. But a&nbsp; decision has to&nbsp; be&nbsp; taken&nbsp; on facts to ascertain whether FIR in Crime No. 19/2013 was registered for a distinct&nbsp; offence&nbsp; or not. This is possible if&nbsp; complaint&nbsp; made&nbsp; by Sankappa Shetty is compared with source report prepared by the Dy. SP after conducting search.</b><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></p><p><b>9.<span style=\"white-space:pre\">	</span>The main allegations in the complaint are that the petitioner while&nbsp; working as&nbsp; Joint Director of Fisheries ( Marine) prevailed upon the then Minister of Fisheries to entrust him with additional charge of Managing Director of KFDC,&nbsp; Mangaluru and having been appointed&nbsp; as&nbsp; Managing&nbsp; Director on 6.11.2012 transferred many honest officials of KFDC and appointed in their places men of his&nbsp; choice to enable himself to&nbsp; adopt corrupt means.&nbsp; He has given details of officers transferred. It is also alleged that during his tenure as MD between the period 6.11.2012 and 4.2.2013, he received gratification other than legal remuneration while exercising his official function. He changed the system of buying fish to his benefit and started collecting commission from&nbsp; fish&nbsp; vendors. During his administration, KFDC suffered&nbsp; financial&nbsp; crisis&nbsp; as a&nbsp; result of&nbsp; which dearness allowance could not&nbsp; be paid to the staff.&nbsp; There&nbsp; are&nbsp; also&nbsp; allegations that he proposed auction of all fish&nbsp; transport vehicles in order to hire private vehicles for transportation of the fish and he,&nbsp; along&nbsp; with General Manager, signed 195&nbsp; blank cheques. And&nbsp; of course, there is also an allegation in para 4( xiii) that the petitioner has amassed huge wealth by corrupt means.</b></p><p><b>11.<span style=\"white-space:pre\">	</span>Now if two are compared, it is possible to opine that although search and&nbsp; seizure&nbsp; was effected having the earlier FIR as the base, the search disclosed altogether a distinct&nbsp; offence.</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">...At times, investigation of one case discloses commission of offences in the past not detected till then and in that event, a separate FIR is to be registered.&nbsp;</b></p><p><b>17.<span style=\"white-space:pre\">	</span>Therefore, with the help of above decisions, here too, it can be said that despite proceedings in P.C.5/2013 being quashed, the materials collected during investigation since disclose altogether a distinct offence, there was no illegality in registering a separate FIR based&nbsp; on those materials. Article 21&nbsp; of&nbsp; the&nbsp; Constitution&nbsp; does not emerge for consideration in the present case. It may be stated a crime unearthed at any time in any&nbsp; manner requires investigation&nbsp; subject to any other limitation or prohibition either in the Code of Criminal Procedure or any other law.</b></p><p><b>19.<span style=\"white-space:pre\">	</span>In view of foregoing reasons, the revision petition stands dismissed. No costs.</b></p>', '5f4b560034c77e99e75eb0810af0dd6c.jpg', '469d63803b92974337716058249e8a8d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-02', 1, '', '', '2022-06-03 03:19:28', '2022-06-03 06:01:52'),
(1772, 'rMikD18LT4qP02OonI91cqnxU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service law. Candidates holding \'dual degrees\' can not be arbitrarily rejected while making appointments to public office. Orissa High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bhuban Mohan Behera Vs State of Odisha and other.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. (C) 3617 of 2022 decided on 31 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.K. Panigrahi.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The petitioner has filed this application challenging\r\nthe legality and propriety of order passed by O.P.\r\nNo.2 vide No.533/PSC, dated 17.01.2022 having\r\nrejected the candidatures of the petitioner who had\r\napplied for the post of Assistant Professor, Geology\r\nin University with unreasonable grounds.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. Shorn of unnecessary details, the substratum of\r\nthe matter presented before this court remain that\r\nthe Odisha Public Service Commission (herein\r\nafter called \"OPSC\") made an advertisement vide\r\nNo.08/ 2020-21 for recruitment to the post of\r\nAssistant Professor in different state public </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">universities under the administrative control of the\r\nHigher Education Department In such\r\nadvertisement clause-4 has prescribed educational\r\nqualification for the aforesaid posts. The petitioner\r\nhaving gone through details of advertisement and\r\nunderstand the same filled up application in online\r\nportal of OPSC. In his educational qualification he\r\nclearly mentioned that he has M.Sc. and Ph.D dual\r\ndegree passed out from IIT, Bombay. His\r\napplication form was accepted and the petitioner\r\nwas called for document verification on the basis of\r\nhis educational qualification and rules of selection\r\nprescribed by the OPSC. The said verification of\r\noriginal documents was done vide notice No.\r\n6974/ PSC dated 29.09.2021. The petitioner has\r\ndual degree (M.Sc. & PhD) and one certificate\r\nissued by the institute without segregating marks\r\nof M.Sc and PhD, so he uploaded the same. The\r\nsame was accepted and the petitioner was called\r\nfor interview, but at the time of verification his\r\ncandidature was rejected without giving him an\r\nopportunity to clarify his standpoint in respect of\r\nhis educational qualification.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5. Learned counsel for the petitioner submits that\r\nafter the rejection notice was published, the\r\npetitioner approached and tried to convince the\r\nO.P. No.2 regarding dual degree qualification and</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">segregation of marks as per rule of the institute.\r\nHowever, the O.P. No.2 did not consider the\r\ncertificate nor did they allow the petitioner for\r\ninterview. There was no rule prescribed to provide\r\ncertificate for segregation of marks where\r\ncandidates possesses dual degree and also no\r\nchance to upload such. Furthermore, no\r\nopportunity has been given to the petitioner to\r\nclarify his stand in respect of dual degree which\r\nviolates principle of natural justice. There is no\r\nsuppression of facts regarding educational\r\ncertificate and the dual degree also approved by\r\nthe OPSC for selection of the aforesaid post.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>6. Indisputably, in the case at hand, this Court is of\r\nthe opinion that in the matters of appointment, the\r\nrules provided by the appointing committee has to\r\nbe strictly followed. In the present case, OPSC has\r\nnot provided any instructions for candidates\r\nholding dual degrees. Even though this can be\r\nconsidered as a distinctive case, however it is\r\narbitrary to out-rightly reject the candidature of\r\nthe petitioner.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. To deal the issue involved in the present case it\r\nwould be necessary to consider very important\r\naspects in the interest of justice, rule of law and in\r\nthe greater interest of public, when any particular <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">process or selection or appointment has suffered\r\nfrom legal and procedural improprieties,\r\ndeficiencies, irregularities or illegalities. The settled\r\nlegal proposition is that principles of natural\r\njustice are in built in the statutory rules and\r\nrequire observance unless the same stand\r\nexcluded by the rules itself. The adjudicating\r\nauthority must be impartial and without any\r\ninterest or bias of any type; where the Adjudication\r\nAuthority is exercising judicial or quasi-judicial\r\npower, the order must be made by that authority\r\nand that power cannot be delegated or subdelegated to any other offices the adjudicating\r\nauthority must give full opportunity to the affected\r\nperson to produce all the relevant evidence in\r\nsupport of his case. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. The Supreme Court has reiterated, time and\r\nagain, that the doctrine of natural justice cannot\r\nbe imprisoned within the strait-jacket or rigid\r\nformula and its application would depend on the\r\nscheme and policy of the statute and relevant\r\ncircumstances involved in a particular case. In the\r\npresent case, considering the lack of provisions\r\nregarding the candidature or individuals holding\r\ndual degrees, the petitioner should have been\r\nprovided a hearing to clarify his standpoint\r\nregarding the segregation of marks.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Having considered the matter in aforesaid\r\nperspective and guided by the precedents cited\r\nhereinabove, this Court allows the petition. It is,\r\nhowever, made clear at this stage that the clock\r\ncannot be reversed as the selection process has\r\nalready been over. However, it is imperative that\r\nthe OPSC should clearly mention the centrality of\r\nthe issue involved herein in clearer terms so that\r\nmany meritorious candidates who are similarly\r\nplaced with the present petitioners should not be\r\ndeprived of the opportunity of participating in the\r\nselection of process. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. The Writ Petition is, accordingly, disposed of in\r\nterms of the above directions. There shall be no\r\norder as to costs. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6be3792c0f505841f7c214eed26f8d3d.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-13', 1, '', '', '2022-06-03 17:28:33', '2022-06-13 13:59:10'),
(1773, 'x4vMu0AJGFLiYdIRp8EcK8OEA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Town and Country Planning. Enormous delay in revising existing Master Plans and detailed Town Planning Scheme including the developments in the area cannot affect the rights of persons. Periodic revision of the Master Plan is required. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sathi Gopinath Vs Corporation of Thiruvanthapuram and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WP (C) 21323 of 2021 decided on 2 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice T.R. Ravi. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is the owner of 7 Ares and 66 M2\r\n of\r\nproperty in Block No.20 in Re.Sy.No.7 of Sasthamangalam\r\nVillage. The petitioner executed a registered irrevocable power\r\nof attorney in favour of Arcon Home Pvt. Ltd. with respect to\r\nthe said property for constructing a multi-storeyed building in\r\nthe property. Since the property had been categorised as\r\npaddy land in the revenue records, the petitioner had\r\napproached the Revenue Divisional Officer, for permission to\r\nput the land for other uses, since the land is not one included\r\nin the data bank. By Ext.P2 order, the petitioner was granted\r\npermission for using the land for construction of a building\r\nhaving 2698.16 M2\r\n on payment of a sum of Rs.55,73,566/-.\r\nRs.28,62,500/- out of the said amount was an amount levied\r\nfor the purpose of effecting the construction based on the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">square area. The petitioner paid the amount as directed which\r\ncan be seen from Ext.P3 proceedings. Thereafter the petitioner\r\nsubmitted Ext.P4 application before the 1st respondent for\r\nissuance of a building permit. The 1st respondent rejected the\r\napplication on the ground that the property has been\r\ncategorised as “green strip” as per GO(Ms) No.144/07/LSGD\r\ndated 31.3.2007. The copy of the proceedings has been\r\nproduced as Ext.P5. The petitioner has produced Ext.P6\r\nphotographs to show that on the southern side of the property\r\nof the petitioner, permission has been granted for construction\r\nof a multi storeyed building having 15 storeys. It is submitted\r\nthat the property cannot be treated as green strip land any\r\nlonger and that the judgments of this Court in Corporation of\r\nThrissur v. Kunjilakutty reported in [2014 KHC 2517] and\r\nBasheer v. Kozhikode Corporation & Ors. reported in\r\n[2021 (4) KLT 82] will apply in such situations.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The 1st respondent has filed a statement stating that\r\nsince the Regional Town Planner has rejected the application,\r\nthe 1st respondent cannot grant a building permit, since as per\r\nthe sanctioned Master Plan, the property comes within the\r\ngreen strip area. Additional 3rd respondent who is the District <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Town Planner has also filed a counter-affidavit reiterating the\r\nabove aspect and stating that when there is a Master Plan in\r\nplace, there cannot be a construction of a building in violation\r\nof the Master Plan.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. In Haneefa v. Municipal Secretary (W.P.\r\n(C)No.14778 of 2020), this Court had occasion to consider a\r\nsimilar situation where an application was rejected on the\r\nground that the property comes within paddy zone and no\r\nconstruction of a commercial building can be allowed. This\r\nCourt noticed the fact that the property is not included in the\r\ndata bank and that the petitioner therein had been granted\r\npermission under the Kerala Land Utilisation Order to utilize the\r\nland for other purposes. Thereafter, this Court held that if the\r\nland cannot be classified as a paddy land, it cannot be retained\r\nas a paddy field under a Town Planning Scheme and that the\r\nScheme can apply only if the land is having the characteristics\r\nto be retained as a paddy land. In Basheer (supra), this\r\nCourt had taken note of the fact that enormous delay in\r\nrevising existing Master Plans and detailed Town Planning\r\nScheme including the developments in the area cannot affect\r\nthe rights of persons and that periodic revision is required.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. On the facts of this case, the contentions put forward\r\nby the petitioner are fully justified. There is no case that the\r\npetitioner’s property is a paddy land under the Kerala\r\nConservation of Paddy Land and Wetland Act, 2008. It is also\r\nadmitted that the authorities under the Act had granted\r\npermission for user of the land for other purposes after levying\r\nthe huge fee of Rs.55,73,500/-. Since the property is not a\r\npaddy land and cannot be used for the purpose of paddy\r\ncultivation, the reason stated that the property comes within\r\nthe green strip in the sanctioned Master Plan and that\r\nconstruction cannot be permitted for an area of 2698.16 M2\r\ncannot be sustained. The Government cannot be heard to say\r\ndifferently in different Departments; that a property is not a\r\npaddy land under the 2008 Act and quite contrarily, that it\r\nshould not be used for any other purpose other than as paddy\r\nland as per provisions of the Town Planning Act. It is totally\r\nunfair to reject permission for construction on such a ground\r\nafter having found categorically that the property is not a\r\npaddy land and can be used for other purposes and that too on\r\npayment of a huge fee. The petitioner is entitled to succeed in\r\nthis writ petition.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. In the result, the writ petition allowed. Ext.P5 order\r\nis quashed. The respondents 1 and 2 are directed to\r\nreconsider Ext.P4 application submitted by the petitioner for a\r\nbuilding permit and to grant the same if the petitioner is\r\notherwise entitled. That the property is included in the green\r\nstrip/paddy zone shall not be a reason for rejecting the\r\napplication. Necessary orders shall be issued within one month\r\nfrom the date of receipt of a copy of this judgment.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0ffa2ecc74d6b2695fa036d287ff7bc3.jpeg', '6867f2c5df9e7b8de3faeb223dd47a10.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-06', 1, '', '', '2022-06-03 17:44:09', '2022-06-06 20:58:51');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1775, 'Sxs9TQjgLAV4Kxg63TCdcVphR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service law. A public servant cannot be left without a post. Transfer of a public servant without him being posted elsewhere amounts to a legal malafide. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mahiboob Sab Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 16363 of 2021 decided on 31 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice G. Narendar and Justice Shivashankar Amarannavar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The petitioner who was discharging duties as Director of the Directorate of Minorities, Minority Welfare Department was transferred out of the post by impugned order dated 23.07.2021 and aggrieved he approached the Tribunal. The Tribunal after a detailed hearing has been pleased to negate the challenge on the short ground that he does not possess the eligibility stipulated under the C&R (Cadre and Recruitment) Rules of the minority department i.e.., the Karnataka Minorities Welfare Services (Cadre and Recruitment) Rules, 2010 published on 15.03.2011 . That the petitioner being in the cadre of Deputy Secretary was ineligible to be appointed as the Director of the Minorities Department, as the C and R Rules stipulates that the director can only be from among the cadre of Karnataka Administrate Services (Selection  Grade/Higher Pay scale) or Indian Administrative Service (IAS) (Senior Scale  Officer).<span style=\"white-space: pre;\">	</span>On that short ground the Tribunal was pleased to repel the challenge mounted by the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>It is contended on behalf of the petitioner that  the  post of Deputy Secretary is equivalent in grade to that  of IAS and KAS Officer of Senior scale. In this regard the learned senior counsel would invite the attention of the  Court to the notification issued by the Department of Personnel and Administrative Reforms bearing No.DPAR 105 SRD 2014, Bengaluru, dated 10.07.2019 and  would  take the Court to Schedule I and more particularly would draw  the attention to the entry at Sl.No.17 wherein the filling up  of the post of Deputy Secretary to Government, Karnataka Government Secretariat is shown to be by way of promotion from the cadre of Under Secretary to Government,  Karnataka Government Secretariat Services or by posting of IAS and KAS (Group A) (Senior scale) officers and he would further take the Court through the Note I, which states that out of the posts of Deputy Secretaries 12 posts shall be   filled up by posting IAS or KAS group A (Senior scale officers). Provided that six posts in the cadre of Deputy Secretaries to Government shall be filled up by the deputation of officers of the Karnataka Administrative Services shall be filled up by the deputation of  the  Karnataka Administrative Services (Senior scale) subject to the condition that an equal number of officers of the Karnataka Government Secretariat Services are deputed to any other State Civil Services. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>From a reading of the above it is apparent that  by the said notification the Government has, as a policy permitted the appointment of officers of the KAS Group A (Senior scale officers) to be posted as Deputy Secretaries and officiate in the in the post of the Karnataka Government Secretariat. Further reading of the note only states that the said postings are subject to the condition that an equal number of officers of the Karnataka Government Secretariat Services are deputed to any other State Civil Services and   in that view he would contend that the posting of the petitioner cannot be faulted with on the ground that the C and R Rules do not permit the posting of the  non KAS or  non IAS officer to the post of Director. In our opinion the  said contention is fallacious and requires to be rejected at  the threshold itself. Eligibility once stipulated requires to be adhered to strictly. Merely because, by the  above notification the Karnataka Government Secretariat Services Recruitment Rules of 2019 enabled the posting of the  officers of KAS Group A (Senior scale) to be posted in the Secretariat Services Department and stipulation of  a quid pro quo in the cadre and recruitment Rules of 2019 of the Karnataka Government Secretariat Services Recruitment Rules, 2019 cannot be construed as automatically amending C and R Rules of the Karnataka Minorities Welfare Services (Cadre and Recruitment) Rules, 2010 published on 15.03.2011. The stipulation with regard to the qualification required to be possessed by the candidates to be appointed as Director, has not been amended and remains the same.  In our opinion it would be fallacious to contend that the C and R Rules should be deemed to have been amended in view of the amendment carried out to the C and R Rules of another department/wing of the Government. In our  opinion, the case canvassed is too far fetched and if  accepted would result in undesirable consequences and deemed amendments are unknown to the canons of service law.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>From a reading of the above it is apparent that the Coordinate Bench, even by its interim order, as noted supra has by its order dated 28.02.2016, had been pleased to hold that transfer of a person without him being posted elsewhere amounts to a legal malafide i.e., where ‘A’ is ordered to be transferred out of his post without there being a movement order against him. In the instant  case  the order under challenge would reflect that there is no order transferring the petitioner out of the said post, but despite the post being occupied the second respondent has been transferred to the post of Director when the same was not vacant. This aspect has been appreciated by the coordinate bench and has categorically held that such a transfer would constitute a legal malafide.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>The other aspect of the Hittalmani’s case which was binding on the Tribunal is that an officer could not have been left without a post. The Tribunal for  reasons best known has completely ignored and has not assigned any reasons for not appreciating the rulings. Reading of para Nos.4 and 6 of the judgment does not reflect any appreciation nor reveals any reasoning for the judgments placed before not being appreciated and followed. As stated earlier any order of this court restoring the petitioner to the post would amount to restoring an illegal order i.e.,  the order dated 29.05.2021 by which the petitioner came to be posted as the Director of the Minorities Welfare Department as the same is contrary to the very C and R Rules.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>36.<span style=\"white-space:pre\">	</span>From a reading of the above and the facts involved in the said case it is apparent that the Apex Court was not dealing with the issue of eligibility and the Apex Court in the facts and circumstances involved therein was pleased to hold that the power of ratification was vested in the authority, namely the Board and hence held that the subsequent ratification by the competent authority of the initial orders was legal. We have no quarrel with the observations of the law laid down by the Apex Court.  Another ruling is also placed before us by the learned AAG reported in 2003 (4) SCC 239. The three Judges bench of  the Apex Court was yet again dealing with the case of ratifying actions pursuant to delegated administrative  powers and not the question of eligibility which is the issue involved herein.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>37.<span style=\"white-space:pre\">	</span>The bogey of eligibility was raised by the second respondent and on scrutiny we find that even the second respondent does not possess the eligibility to be appointed  as there is no proceeding whereby the merits of the case of the second respondent interse other officers of the  KAS cadre have been assessed by the department and he has been found fit to be promoted to the next post of selection grade. In fact the hierarchy in the KAS  cadre  would  indicate there was one more intermediate scale i.e., of KAS senior scale as is found in the book published by the department of parliament, DPAR, a wing of the first respondent.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>40.<span style=\"white-space:pre\">	</span>The learned senior  counsel appearing on behalf  of the second respondent would press into service two  rulings of the Apex Court reported in 2014 (15)  SCC 466  and would place reliance on the observations of the Apex Court in paragraphs 6 to 13 to contend that the question of eligibility cannot be gone into as there is no specific  challenge to the eligibility of the second respondent to hold the post. In our opinion the said contention is fallacious for the very proceedings impugned before the Tribunal and this Court is the order dated 27.3.2021 whereby the petitioner stood deprived of his right to hold the post and a similar  right to hold the post was conferred on the second respondent. Another ruling of the Apex Court the learned senior counsel would place reliance which is reported  in 2013 (4) SCC 465 would place reliance on the observation   of the apex court in paragraphs 9 to 17. In our opinion the said ruling is of no avail to the petitioner and is distinguishable on the facts of the instant case.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>41.<span style=\"white-space:pre\">	</span>As noticed by us in the earlier part of this order, the impugned order was contrary and in the teeth of law settled by this court in Hittalmani’s case. That</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(1) it was premature as the petitioner had not completed  the  minimum fixed tenure;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(2) there was no simultaneous movement order moving the petitioner out of the post while transferring and appointing the second respondent to the post occupied by the petitioner and</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(3) the order appointing/transferring the second respondent to the post held by the petitioner was not preceded by any order of removing the petitioner from the post of Director on the ground of his ineligibility to hold the post.  In that view of  the matter, in the absence of an order of removal, the case of the petitioner was squarely covered by the law laid down by this Court in Hittalmani’s case and which has been relied upon by the petitioner, both before the Tribunal and this Court.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>42.<span style=\"white-space:pre\">	</span>We refrain from interfering with the proceeding transferring the petitioner out of the post in view of the C and R Rules of Karnataka Minorities Department (published on 15.3.2011). Consequently, we reject the writ petition in so far as it seeks to restore the petitioner to post. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>43.<span style=\"white-space:pre\">	</span>We partly allow the writ petition. We hold that  the second respondent is ineligible to be transferred and appointed as Director, Minorities Welfare Department, in terms of the very same cadre and recruitment rules, as no document has been placed before this Court to demonstrate that any promotion either regular or deemed has been conferred on the second respondent in a manner known to law as on the date of the impugned order i.e., 23.07.2021. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>44.<span style=\"white-space: pre;\">	</span>We also hold that the proceedings dated 12.01.2022 is an act of overreach and we direct that second respondent be forthwith removed from the post of Director, Department of Minorities and compliance of this order shall be reported to this Court expeditiously. The writ petition is ordered accordingly.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '27466b15f6e98cdfce82d90d61a63763.JPG', 'f98a64110f13b4a045c8a9cfab232420.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-06', 1, '', '', '2022-06-03 20:52:56', '2022-06-06 12:22:54'),
(1777, 'DohTtIi0eV9Sy8Sh1ldk0Qa37', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Children of daughter who died earlier to amendment to Hindu Succession Act,  2005 are also entitled for share in the ancestral property. Karnataka High Court. ', '<p><b>Nirmala vs&nbsp;</b><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">H.V. Venkatachalappa by lrs. <br>Regular Second Appeal 2629 of 2006 decided on 5 October 2021<br>Justice N.K.Sudhindrarao<br></span></p><p><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">22. The following additional substantial questions of law arise for consideration:</b><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></p><p><b>(iv) Whether the children of a daughter who died earlier to amendment to Hindu Succession Act,&nbsp; 2005 is entitled for the same share at par with a daughter?</b></p><p><b>35. Learned counsel for appellant/defendant No.1-V. Ramaiah in RSA No.2629/2005 submitted that as per the principles laid down in Vineeta Sharma’s case, the children of deceased daughter are not entitled for the share equivalent to that of the deceased daughter if the said daughter died earlier to the Amendment Act 2005. In this connection, the contextual reading of the judgment guides that the daughter&nbsp; is treated equivalent to that of a son and&nbsp; has all the rights of coparcener and her rights are enforceable by their children.</b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '3d2ee194e09107d511e4bc2adf55a848.jpg', '10c299a32ed6b64aa3b51cc2f5050182.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-04', 1, '', '', '2022-06-04 16:24:16', '2022-06-04 16:24:16'),
(1779, 'XSGW7pvCdppD3l9sqJBdinpJr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Supreme Court orders creation of Eco-Sensitive Zone for national park/wildlife sanctuary. Bans mining activities within the protected forest area. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>T.N. Godavarman Thirumulpad Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition (Civil) 202 of 1995 decided on 3 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice L. Nageswara Rao, Justice B.R. Gavai and Justice Aniruddha Bose.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>These proceedings originate from the Writ Petition under Article 32 of the Constitution of India registered as W.P. (Civil) No. 202 of 1995 (T.N. Godavarman Thirumulpad v. Union of India   and  Ors.), which is in the nature of a public interest litigation. It was instituted for protection of forest lands in the Nilgiris district of the State of Tamil Nadu. Subsequently, the scope of that writ petition was enlarged so as to protect such natural resources throughout the country. The original writ petitioner has since passed away (on 1st  June 2016) but in an order passed on 3rd February 2017, this Court opined that being a public interest litigation, there was no requirement for bringing on record the legal representatives of the deceased petitioner. The writ petition, in substance, continued with the cause title “in Re: T.N. Godavarman Thirumulpad v. Union of India & Ors”. Various Orders have been passed from time to time in this writ petition to ensure preservation of forest resources of this country in balance with economic activities. By an Order of this Court dated 9th  May 2002, a Central Empowered Committee (“CEC”) was directed to be formed primarily for monitoring implementation of this Court’s orders and to place the incidents of  non­compliance before us. Subsequently, by a notification issued on 17th September 2002 by the Ministry of Environment and Forest in  exercise of power under Section 3(3) of the Environment (Protection) Act, 1986, this committee was constituted under statutory provisions. CEC has been bringing to the notice of this Court the steps taken for removal of encroachment, implementation of working plans, compensatory afforestation, plantation and other conservation issues. In this order, we shall be mainly dealing with two sets of issues. The first set relates to mining activities in and around a wildlife sanctuary in the State of Rajasthan­ known as “Jamua Ramgarh” (also spelt as Jamwa Ramgarh). The second set of issues is wider in scope, and involves prescribing eco­sensitive zones (ESZ) surrounding the wildlife sanctuaries and national parks. The subject of mining and other commercial activities within the wildlife sanctuaries and national parks  (protected forests) shall also be dealt by us in this order.  The applications before us require examination in the perspective of a set of recommendations made by the CEC and we have been urged by a set of applicants to make certain modifications of this Court’s earlier directions concerning steps to be taken for protection of forest resources. The applicants seeking modifications of our earlier orders include a set of miners, and, in some cases, the State Governments asking for opening up of the protected forest areas and their buffer zones, on which restrictions have been placed in by our earlier orders, for commercial exploitation. There is dispute as to what would constitute the buffer zones on ESZ in respect of national parks and wildlife sanctuaries, as there are divergence of views among the various stakeholders.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>44. We accordingly direct:­</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a) Each protected forest, that is national park or wildlife sanctuary must have an ESZ of minimum one kilometre measured from the  demarcated boundary of such protected forest in which the activities proscribed and prescribed in the Guidelines of 9th February 2011 shall be strictly adhered to. For Jamua Ramgarh wildlife sanctuary, it shall be 500 metres so far as subsisting activities are concerned.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b) In the event, however, the ESZ is already prescribed as per law that goes beyond one kilometre buffer zone, the wider margin as ESZ shall prevail. If such wider buffer zone beyond one kilometre is proposed under any statutory instrument for a particular national park or wildlife sanctuary awaiting final decision in that regard, then till such final decision is taken, the ESZ covering the area beyond one  kilometre as proposed shall be maintained.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(c) The Principal Chief Conservator of Forests as also the Home Secretary of each State and Union Territory shall remain   responsible   for  proper compliance  of the said Guidelines as regards nature of use within the ESZ of all national parks and sanctuaries within a particular State or Union Territory. The Principal Chief Conservator of Forests for each State and Union Territory shall also arrange to make a list of subsisting structures and other relevant details within the respective ESZs forthwith and a report shall be furnished before this Court by the Principal Chief Conservator of Forests of each State and Union Territory within a period of three months. For this purpose,  such authority shall be entitled to take assistance of any governmental agency for satellite imaging or photography using drones.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(d) Mining within the national parks and wildlife sanctuaries shall not be permitted.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(e) In the event any activity is already being undertaken within the one kilometre or extended buffer zone (ESZ), as the case may be, of any wildlife sanctuary or national park which does not come within the ambit of prohibited activities as per the 9th February 2011 Guidelines, such activities may continue with permission of the Principal Chief Conservator of Forests of each State or Union Territory and the person responsible for such activities in such a situation shall obtain necessary permission within a period of six months.  Such permission shall be given once the Principal Chief Conservator of Forests is satisfied that the activities concerned do not come within the prohibited list and were continuing prior to passing of this order in a legitimate manner. No new permanent structure shall be permitted to come up for whatsoever purpose within the ESZ.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(f) The minimum width of the ESZ may be diluted in overwhelming public interest but for that purpose the State or Union Territory concerned shall approach the CEC and  MoEF&CC and  both  these bodies shall give their respective opinions/recommendations before  this Court. On that basis, this Court shall pass appropriate order.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(g) In the event the CEC, MoEF&CC, the Standing Committee of National Board of Wildlife or any other body of persons or individual having special interest in environmental issues consider it necessary for maintaining a wider or larger ESZ in respect of any national park or  wildlife sanctuary, such body or individual shall approach the CEC.  In such a situation the CEC shall be at liberty to examine the need of a wider ESZ in respect of any national park or wildlife sanctuary in consultation with all the stakeholders including the State or Union Territory concerned, MoEF&CC as also the Standing Committee of National Board of Wildlife and then approach this Court with its recommendations. (h) In respect of sanctuaries or national parks for which the proposal of a State or Union Territory has not been given, the 10 kilometres buffer zone as ESZ, as indicated in the order passed by this Court on 4th December 2006 in the case of  Goa  Foundation  (supra) and also contained in the Guidelines of 9th  February  2011 shall be implemented. Within that area, the entire set of restrictions concerning an ESZ shall operate till a final decision in that regard is arrived at.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) I.A. No. 1412 of 2005 and I.A.No.117831 of 2019 do not relate to the issues involved in I.A. No.1000 of 2003. These applications may be placed before the appropriate Bench to be heard independently.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(j) For the same reason, I.A. No.1992 of 2007 shall also be dealt with independently by the appropriate Bench and no order is being passed concerning this application at this stage.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(k) The application of the State of Rajasthan registered as I.A. No.3880 of 2015 relates to clarification of an order passed in the case of Goa Foundation (W.P.(C) No.460 of 2004). Let this application be placed before the Bench taking up the case of Goa Foundation.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(l) I.A.No.96949 of 2019 and I.A.No.65571 of 2021 are disposed of with directions that the MoEF&CC as also CEC shall proceed to take a decision in regard to the draft proposal for ESZ made by the State of Maharashtra to the extent of 0­3.89 kilometres and the MoEF&CC shall take final decision on that basis within a period of three months, if said decision has not already been taken.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(m) Prayers for impleadment of the applicants in I.A. Nos. 984 of 2003, 1026 of 2004, 1123 of 2004, 1197 of 2004 and 1251 of 2004 are allowed. Necessary amendments may be carried out in these regards.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(n) For the reasons already given, however, prayers of the applicants in I.A. Nos.982 of 2003, 1027 of 2004, 1124 of 2004, 1198 of 2004, 1210 of 2004, 1250 of 2004 and 1512 of 2006 are rejected.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(o) The CEC shall quantify the compensation to be recovered from each miner indulging in mining activities within the Jamua Ramgarh sanctuary in violation of any statutory provision or order of this Court. Specific recommendations for compensatory afforestation, reclamation, clearing overburden dumping as also compensation in monetary units for degradation of forest resources shall also be  made. A further set of recommendations concerning confiscation of earth moving equipments and other machineries lying within or in the periphery of the said sanctuary shall be made by the CEC. Recommendations shall be made within a period of four months before this Court in the form of an application. This Court shall consider passing appropriate order upon going through such application. The  exercise  concerning such reparation, including quantifying compensation shall be undertaken upon giving the mining operator, State and  MoEF&CC opportunity of hearing.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(p) In the event there is any subsisting order of any High Court or any Court subordinate to such High Court covering any of the issues dealt with by this Court in this order, this order shall prevail over any such order which may be contrary to these directions.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(q) We have already observed that there are certain overlapping issues involved in this writ petition and the cases of Goa Foundation (Writ Petition (C) No.460 of 2004) and (Writ Petition (C) No.435 of 2012).  We request the Hon’ble the Chief Justice of India to consider having the present writ petition i.e.  In  Re: T.N.  Godavarman Thirumulpad v. Union of India & Ors., W.P.(C) No.460 of 2004 (Goa Foundation v. Union of India) as also W.P. (C) No.435 of 2012 (Goa Foundation v. Union of India & Ors.) be heard together before the same Bench. The registry may place this order before the Hon’ble the Chief Justice of India.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a54448fa32cb05d5a8007cf901d1e3ea.jpeg', '22becf083f022ce502492e0babbac25a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-07', 1, '', '', '2022-06-04 17:59:49', '2022-06-07 13:57:40'),
(1780, 'hfAUGnAMnQo2VUZ6FkQXQsIdU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Insolvency and Bankruptcy Code. Proposal to withdraw insolvency proceedings should be allowed if 90% or more creditors accept the settlement plan of the debtor company. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vallal RCK Vs M/s Siva Industries and Holdings Limited and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1811-1812 of 2022 decided on 3 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B.R. Gavai and Justice Hima Kohli.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. These appeals challenge the common judgment dated 28th January 2022 passed by the learned National Company Law Appellate Tribunal, Chennai Bench, Chennai (hereinafter referred to as the “NCLAT”) in Company Appeal (AT)(CH)(Insolvency) Nos. 211 and 212 of  2021, thereby dismissing the appeals filed by the present appellant, which were in turn filed, challenging the two orders dated 12th August 2021 passed by the learned National Company Law Tribunal, Division Bench­II, Chennai (hereinafter referred to as the “NCLT”), thereby rejecting the application filed by the Resolution Professional (“RP” for short) under Section 12A of the Insolvency and Bankruptcy Code, 2016 (“IBC” for short) read with Regulation 30A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (hereinafter referred to as the “2016 Regulations”), for withdrawal of the application filed under Section 7 of the IBC in view of the Settlement Plan submitted by the appellant. The appellant has also challenged the order passed by the learned NCLAT of the even date vide which the appeal filed by the present appellant against the order passed by the learned NCLT directing initiation of liquidation proceedings in respect of M/s Siva Industries and Holdings Limited­respondent No.1 herein (hereinafter referred to as the “Corporate Debtor”), was dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23. As already stated hereinabove, the provisions under Section 12A of the IBC have been made more stringent as compared to Section 30(4) of the IBC.  Whereas under Section 30(4) of the IBC, the voting share of CoC for approving the Resolution Plan is 66%, the requirement under Section 12A of the IBC for withdrawal of CIRP is 90%. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24. When 90% and more of the creditors, in their wisdom after due deliberations, find that it will be in the interest of all the stake­holders to permit settlement and withdraw CIRP, in our view, the adjudicating authority or the appellate authority cannot sit in an appeal over the commercial wisdom of CoC. The interference would be warranted only when the adjudicating authority or the appellate authority finds the decision of the CoC to be wholly capricious, arbitrary, irrational and  de hors  the provisions of the statute or the Rules.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">26. It is thus clear that the decision of the CoC was taken after the members of the CoC, had due deliberation to consider the pros and cons of the Settlement Plan and took a decision exercising their commercial wisdom. We are therefore of the considered view that neither the  learned </font></span><font face=\"Calibri, sans-serif\">NCLT nor the learned NCLAT were justified in not giving due weightage to the commercial wisdom of CoC. </font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>27. This Court has, time and again, emphasized the need for minimal judicial interference by the NCLAT and NCLT in the framework of IBC.  We may refer to the recent observation of this Court made in the case of Arun Kumar Jagatramka v. Jindal Steel and Power Limited and Another</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>“95.  ….However, we do take this opportunity to\r\noffer   a   note   of   caution   for   NCLT   and NCLAT,\r\nfunctioning   as   the   adjudicatory   authority   and\r\nappellate   authority   under   the   IBC   respectively,\r\nfrom   judicially   interfering   in   the   framework\r\nenvisaged   under   the   IBC.   As   we   have   noted\r\nearlier in the judgment, the IBC was introduced\r\nin   order   to   overhaul   the   insolvency   and\r\nbankruptcy   regime   in   India.   As   such,   it   is   a\r\ncarefully considered and well thought out piece of\r\nlegislation   which   sought   to   shed   away   the\r\npractices   of   the   past.   The   legislature   has   also\r\nbeen working hard to ensure that the efficacy of\r\nthis   legislation   remains   robust   by   constantly\r\namending   it   based   on   its   experience.\r\nConsequently, the need for judicial intervention\r\nor   innovation   from   NCLT   and NCLAT should   be\r\nkept at its bare minimum and should not disturb\r\nthe foundational principles of the IBC…..”</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>28. In the result, we pass the following order:<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(i) The appeals are allowed;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(ii) The   impugned  judgment dated  28th January 2022 delivered by the learned NCLAT in Company Appeal (AT)(CH)(Insolvency) Nos. 211 and 212 of 2021 and the orders dated 12th  August 2021 passed by the learned NCLT in  MA/43/CHE/2021 in IBA/453/2019 and  in  IA/837/IB/2020 in IBA/453/2019 are quashed and set aside; and</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(iii) The application bearing No. MA/43/CHE/2021 in IBA/453/2019 filed by the Resolution Professional before the learned NCLT for withdrawal of CIRP is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>29. Pending application(s), if any, shall stand disposed of in the above terms.  No order as to costs.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b65eff26701596ad44e5e3465ea2fc09.jpeg', 'e0775f302d5dec3f8da980fab0fe839e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-04', 1, '', '', '2022-06-04 18:10:46', '2022-06-06 06:49:35'),
(1788, 'nYTTtLXldt8DQxYM9aLricWHd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Second petition under Section 482 Cr.P.C to quash criminal proceedings is maintainable only in exceptional cases where there are changed circumstances. Karnataka High Court  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Srikantaiah Vs State of Anti Corruption Bureau and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 12 of 2022 decided on 26 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The petitioner calls in question proceedings in Crime No.7/2021 registered for offence punishable under Section 7(a) of the Prevention of Corruption Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The dismissal of the petition was reserving liberty to the petitioner to challenge the charge sheet, if it is filed. It is an admitted fact that even as on date the charge sheet  is not filed.  Therefore, the petitioner is  bound by the  order dated 03.12.2021, which has become final. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Learned Senior counsel taking this Court through the judgments of the Apex Court would contend that  the second petition under Section 482 of Cr.P.C. would become maintainable. There can be no qualm at the enunciation of law by the Apex Court as to the maintainability of the second petition under Section 482 of Cr.P.C., but only in exceptional cases where there are changed circumstances. The changed circumstance as quoted in the aforesaid order is yet to arrive. The circumstance not yet arrived, the second petition for the same reason would not be maintainable owing to peculiarity of the facts of the case. Therefore, the petition stands dismissed albeit reserving  the very same liberty that the Court had earlier reserved in Criminal Petition No.8215/2021.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '91857546d2b07959238a2c8b8eb7816f.jpeg', 'dd038aa1bbdbeb201537099c97704f2b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-07', 1, '', '', '2022-06-07 17:13:48', '2022-06-07 08:30:55');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1782, 'DHxjdT0jOIxuwjD1jjvyrKdtF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contract with Government. Court cannot direct the parties to enter into an agreement awarding the work. Delhi High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S HFCL Limited Vs M/S Telecommunications Consultants India Ltd.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>O.M.P (I) (COMM) 173 of 2022 decided on 3 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V. Kameshwar Rao.   </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. It is the case of the petitioner and so contended by Mr. Bishwajit\r\nBhattacharya, Ld. Sr. Counsel that BSNL published a tender bearing\r\nTender No.-CA/CNP/NFS OFC/T- 44112013 on June 21, 2013 for\r\nprocurement, supply, trenching, laying, installation, testing and\r\nmaintenance of Optical Fibre Cable, PLB Duct and accessories for\r\nconstruction of exclusive optical NLD backbone and Optical Access\r\nRoutes on Turnkey Basis For Defence Networks. A bidder could bid for\r\none or more packages wherein each package comprises of different sets\r\nof States/UT\'s. The petitioner and respondent herein bid for „Package C?,\r\ncomprising of Uttar Pradesh, Rajasthan and Uttarakhand. They entered\r\ninto a „Teaming Agreement? dated August 19, 2013, to submit a bid for\r\nPackage C of the BSNL Tender. According to him, the said Teaming\r\nAgreement contained an exclusivity clause being Clause 2, which barred\r\neither party from entering into any agreement of similar nature with any\r\nthird party for the bid package.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The petitioner and respondent entered into an MOU dated\r\nJanuary 30, 2014 (as amended vide the first amendment dated September\r\n18, 2014), for the purpose of bidding for the BSNL tender and to put\r\ndown the terms of their relationship. The MOU delineated individual\r\nscope of work of both the parties and chalked out the responsibilities in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">their scope of work.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. It is stated that a reading of Clause 1.2 and 7.3 of the MOU and\r\nClause 13.7 and 25.1.10 of the BSNL tender shows that the petitioner is\r\nOFC manufacturer alongwith the respondent as they are individually and\r\nindependently responsible for their scope of work and also jointly and\r\nseverally liable towards BSNL for the execution of the project.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. He stated that the BSNL Tender also contains several clauses\r\nwhereby it can be ascertained that the work for maintenance and\r\npreventive correction to be done under the AMC was part and parcel of\r\nthe main tender and has to be performed by the petitioner after expiry of\r\nthe warranty period. Clauses 47, 83.2, 154, 186.11.14, 189, 197 and 207\r\nsupport the aforesaid fact. It is stated that the petitioner took into\r\nconsideration the aforesaid clauses and the fact that AMC services will\r\nbe performed by the petitioner, and fixed the cost of its products for\r\nsubmission of the bid while making its decision of partnering with TCIL\r\nto bid for the project.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Subsequently, the respondent issued POs dated September 19,\r\n2014 in favour of the petitioner for procurement of services pursuant to\r\nthe issuance of the BSNL PO. He stated, the MOU has been referred to\r\nin the POs and forms a part of the TCIL POs. The petitioner performed\r\nits obligations under the agreements without demur and provided its\r\nservices as per its scope of work. As per Clause 89 of the Tender and\r\nClause 17 of the PO, the bidder had to provide warranty for 3 years for\r\nmaterials supplied. After completion of the warranty period, the\r\npetitioner started providing operation and maintenance services under the\r\nAMC clauses as provided for in the MOU and the Tender.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. He stated, on January 31, 2020, the petitioner wrote a letter to the\r\nrespondent informing it of its obligation to issue a PO for AMC so that\r\nthe petitioner continue maintaining the network as per agreed terms. In\r\nreply, the respondent, vide letter dated February 06, affirmed its\r\nobligation of issuing PO for post warranty AMC services on back-toback basis, upon receipt of corresponding PO from the Project\r\nImplementation Core Group in favour of the respondent. On December\r\n31, 2020, the respondent sent a letter to the petitioner stating that they\r\nhave received consent letter dated December 11, 2020 from BSNL\r\nregarding AMC services in Package C. It further stated that the AMC\r\nagreement has been sought for from BSNL and will be communicated to\r\nthe petitioner as soon as the respondent receives it. The consent letter\r\nreceived from BSNL provided for the period from October 01, 2020 till\r\nMarch 31, 2020. According to Mr. Bhattacharya, the aforesaid letter <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">affirms the fact that there was no dispute on the fact that the petitioner\r\nhas the right to perform AMC services.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. He stated, the petitioner sent reminders on May 31, 2021 and\r\nJune 07, 2021 stating that the petitioner will not be responsible for any\r\nunforeseen incident caused because of the absence of material.\r\nThereafter, on June 09, 2021 the respondent replied stating<i> \"as discussed\r\nplease find enclosed copy of letter written to BSNL regarding the matter\r\nfor your information and necessary action.\"</i>. According to Mr.\r\nBhattacharya, the respondents had sent letters dated June 09, 2021 and\r\nJuly 06, 2021 wherein they admitted that after cessation of the warranty\r\nperiod, AMC services have been provided by the petitioner. In the letter\r\ndated June 09, 2021, the respondent referred to two letters of BSNL dated\r\nFebruary 23, 2021 and December 11, 2020 as „AMC Letters?. However\r\nthe petitioner was not provided with a copy of these letters.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Thereafter, BSNL shared the AMC agreement for the duration\r\nOctober 2020-March 2021 with the respondent for execution between\r\nthem. As per the MOU and POs, a back-to-back agreement needs to be\r\nexecuted between the petitioner and the respondent for AMC services to\r\nenable the petitioner to raise invoices for the work already done. It is the\r\ncase of the petitioner that the respondent breaches the MOU by not\r\nexecuting back-to-back AMC/PO with the petitioner.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. He stated, the impugned tenders have been issued for providing\r\nmaintenance services during AMC period for OFC based NLD and\r\naccess links across the state of Uttar Pradesh. The impugned tenders\r\nclearly state that they have been issued under the BSNL Tender; however\r\nthe petitioner is already providing AMC services under the said tender\r\nand is entitled under the BSNL Tender to provide the said services for the\r\nentire duration of 7 years. In protest, the petitioner sent a letter dated May\r\n20, 2022 to the respondent and called upon them to cancel and withdraw\r\nthe impugned tenders and execute the AMC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. Having heard the learned counsel for the parties, the issue which\r\narises for consideration is, whether the petitioner is entitled to the relief\r\nas prayed for in the present petition. In substance, the relief sought by\r\nthe petitioner is a restraint order against the respondent from proceeding\r\nahead with the tenders issued on May 10, 2022. There is no dispute that\r\nan MOU has been executed between the parties with regard to the work\r\nreferred to above, to be awarded by the BSNL. The work includes\r\nprocurement, supply, trenching, laying, installation, testing and\r\nmaintenance of Optical Fibre Cable, PLB Duct and accessories for\r\nconstruction of exclusive Optical NLD backbone and Optical Access <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Routes on Turnkey Basis for Defence Networks and also the warranty\r\nthereof and including AMC subsequent to the warranty period.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. The plea of Mr.Krishnan is primarily that the petitioner had\r\nraised certain issues with regard to the BSNL agreement. That apart, it\r\nraised an issue of rates, which have been awarded by the petitioner for\r\nproviding AMC, which according to Mr. Krishnan is on a higher side, as\r\ncompared to the rates of Uttarakhand and Rajasthan, which is not\r\nacceptable to the respondent. On this, Mr. Bhattacharya has submitted\r\nthat these rates were offered to TCIL at the time when TCIL had bid for\r\nthe BSNL Tender.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. Going by the submissions made by learned counsel for the\r\nparties, it is clear that as per Clauses 8.3 and 8.4 of the MOU, for the\r\npurpose of AMC, there has to be a separate agreement executed between\r\nthe parties. Concedingly, the parties have not entered into an agreement\r\nwith regard to AMC. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. A plea was taken by Mr. Bhattacharya that AMC is being carried\r\nout by the petitioner. The said plea has been contested by Mr.Krishnan\r\nby stating that no such work for Uttar Pradesh has been awarded to the\r\npetitioner. This Court is of the view, albeit prima facie, that the\r\nsubmission made by Mr. Krishnan based on Clauses 8.3 and 8.4 of the\r\nMOU is appealing. Till such time an agreement is executed between the\r\nparties, the petitioner cannot claim the work of AMC in Uttar Pradesh.\r\nHence, the prayer as sought for by the petitioner cannot be granted. In\r\nother words, it shall amount to this Court directing the parties to enter\r\ninto an agreement, even though the terms are not mutually agreeable.\r\nSuch a direction cannot be given.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>31. In view of my above discussion, I do not see that the petitioner\r\nhas made out a case for granting the relief as prayed for in the petition.\r\nThe petition is dismissed. No costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '55d26f6de42eb0053221150efe51aeea.png', 'b26f624d5b4a5438320a82dbaa00549c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-08', 1, '', '', '2022-06-06 17:41:58', '2022-06-08 10:30:28'),
(1781, 'Jtpuh9FYqXoAnvKRrNVLUnCHv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Providing basic facilities, repairs and renovation of Temple buildings do not fall within the ban imposed under the Ancient Monuments and Archaeological Sites and Remains Act, 1958. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ardhhendu Kumar Das Vs The State of Odisha and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4515 of 2022 decided on 3 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B.R. Gavai and Justice Hima Kohli.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. Both these petitions challenge the interlocutory order dated 9th May, 2022, passed by the Division Bench of the High Court of Orissa at Cuttack, in Writ Petition (Civil) No.6257 of 2022, wherein the Division Bench of the High Court has recorded certain submissions and  statements made by the learned Advocate General appearing on behalf of the State of Odisha and directed the matter to be posted on 22nd June, 2022 along with Writ Petition (Civil) No. 10153 of 2022.  From the tenor of the arguments advanced by the learned counsel for the petitioners, it appears that they are basically aggrieved since the High Court has not granted an interim order restraining the respondents from proceeding further with the construction.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>3. A Public Interest Litigation being Writ Petition (Civil)\r\nNo.6257 of 2022 came to be filed before the High Court of\r\nOrissa by one Dillip   Kumar Baral challenging the alleged\r\nunsanctioned and unauthorised construction activities\r\nundertaken by the respondent Nos. 1 and   2   within the\r\nprohibited area of the Shree Jagannath Temple complex  in contravention of the provisions of The Ancient Monuments and Archaeological Sites and Remains Act, 1958. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>51. Taking into consideration all these aspects of the matter, it is amply clear that the construction activities which are being undertaken,  are being undertaken in pursuance of the directions issued by a three­ Judge Bench of this Court in the case of  Mrinalini  Padhi  (supra).  The construction is being carried out for the purpose of providing basic and essential amenities like toilets for men and women, cloak   rooms, electricity rooms etc. These are the basic facilities which are necessary for the convenience of the devotees at large.   As already discussed hereinabove, the legislative intent appears to be clear.  The legislature has deliberately excluded four categories from the definition of “construction”.  The purpose behind it appears to be that the repairs and renovation of the buildings, which are existing and the constructions which are necessary for providing basic facilities like drainage,  toilets, water supply and distribution of electricity should be kept out of the rigour of requirement of statutory permissions.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>52. An argument was sought to be advanced by Shri Navare that the said provision is only to enable a person who resides in the prohibited area to get his existing structure re­constructed, repaired and renovated and the said provision cannot come to the aid of the State to create facilities for the public.  Such an argument is taken note of only to be rejected.  If an individual person can construct a toilet in a prohibited area; can the State be denied to do so, when the State finds it necessary to do it in the larger public interest for providing basic facilities to the lakhs of devotees visiting  the shrine? The answer is an emphatic ‘no’.52. An argument was sought to be advanced by Shri Navare that the said provision is only to enable a person who resides in the prohibited area to get his existing structure re­constructed, repaired and renovated and the said provision cannot come to the aid of the State to create facilities for the public.  Such an argument is taken note of only to be rejected.  If an individual person can construct a toilet in a prohibited area; can the State be denied to do so, when the State finds it necessary to do it in the larger public interest for providing basic facilities to the lakhs of devotees visiting the shrine?    The answer is an emphatic ‘no’.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>53. A hue and cry was made that the construction carried out is contrary to the Inspection Report carried out by the ASI. However, the note of the Director General of ASI dated 21st February, 2022 as well as the affidavit filed by the ASI before the High Court would falsify this position. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>54. It would further be relevant to note that the High Court itself has recorded the statement of the learned Advocate General for State of Odisha that both the ASI and the State Government would work together to ensure that no archaeological remains are missed out or damaged. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>55. It could thus be seen that even if the appellants had any genuine concern, the same is already taken care of in the impugned order. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>56. In spite of that, the matter was mentioned for obtaining urgent orders before the Vacation Bench on Monday, i.e., 30th May, 2022.  Since the matter was not listed on Tuesday, i.e., 31st  May, 2022  it was again mentioned on the said date. Again, a hue and cry was made as if heavens are going to fall if the petitions were not listed.  As such, the petitions were listed on Thursday, i.e., 2nd June, 2022. We have heard the learned counsel for the parties at length. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>57. We have no hesitation in holding that the activities undertaken by the State are completely in tune with the directions issued by the three­Judge Bench of this Court in the case of  Mrinalini  Padhi  (supra). They are necessary in the larger public interest and there is no prohibition in the statute for doing so, as sought to be argued by the appellants. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>58. We, therefore, find no merit in the contentions raised on behalf of the appellants. We are of the considered view that the public interest litigation filed before the High Court rather than being in public interest, is detrimental to the public interest at large. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>59. In the recent past, it is noticed that there is mushroom growth of public interest litigations. However, in many of such petitions, there  is no public interest involved at all.  The petitions are either publicity interest litigations or personal interest litigation. We highly deprecate practice of filing such frivolous petitions. They are nothing but abuse of process of law. They encroach upon a valuable judicial time which could be otherwise utilized for considering genuine issues. It is high time that such so­called public interest litigations are nipped in the bud so that the developmental activities in the larger public interest are not stalled. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>60. In the result, the appeals, having been found to be without any substance, are dismissed with costs, quantified at Rs.1,00,000/­  (Rupees one lakh) each, payable by the appellants to the respondent No.1 within four weeks from the date of this judgment. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>61. Pending application(s), if any, shall stand disposed of in the above terms.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c18d7b911f2e9d04a92d44dbfa88024c.jpeg', '42e43c6a7785a269ec02317ea3613da8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-06', 1, '', '', '2022-06-04 18:33:09', '2022-06-06 15:13:39'),
(1794, 'PEBY8WpssdnCSKtPDLqNTjLLX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Land Reforms Act. Order of the Tribunal without bringing all the legal representatives of the deceased landlord on record is a nullity in the eye of law. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Yashodamma and others Vs The Deputy Commissioner Bangalore Rural and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. 46672 of 2011 decided on 23 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>2. By the said order, the Land Tribunal has conferred occupancy rights on respondent No.4 – Ningaiah. It is noticed that in the proceeding before the Land Tribunal, Bhajantri Erappa was arrayed as respondent – landlord</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Learned Senior Counsel appearing for the petitioners submits that Bhajentri Erappa had passed away on 15.08.1970 itself and the order passed by the Land Tribunal was essentially an order passed against a dead person and therefore, it is a nullity in the eye of law.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. In my view, since admittedly the proceedings initiated against Bhajentri Erappa, only and without bringing his wife and children were not brought on record as legal representatives, the Land Tribunal could not have proceeded to decide the matter and conferred occupancy rights on respondent No.4. It is to be stated here that on the death of Bhajentri Erappa in 1970, the property would devolve on his legal representatives and not, only on his wife and the Land Tribunal ought to have issued notices to all the legal representatives of Bhajentri Erappa before proceeding to adjudicate Form No.7. That having not been done, an order of the Land Tribunal cannot be sustained. Consequently, the order of the Land Tribunal is set aside and the matter is remanded to the Land Tribunal. The Land Tribunal shall consider the matter afresh and after hearing all the parties concerned, pass appropriate orders in accordance with law.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. It is also to be noticed here that though the Land Tribunal is said to have passed an order in the year 1981, the revenue records were not changed till 2004-05 and it is only after the lands were converted in the year 2009, an attempt was made to disturb the possession of the petitioners and therefore, the petition was filed in the year 2011. In view of the fact that the revenue entries continued in the name of petitioners\' predecessor-in-interest, there is justification for the petitioners to file this writ petition in the year 2011 and there would be no question of delay in filing the writ petition. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Writ Petition is accordingly disposed off.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '83928872c356ce29f436c012c6657c2d.jpeg', '48a59e6f97debe6cff11a2757480ee2c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-08', 1, '', '', '2022-06-08 17:34:23', '2022-06-11 04:06:44'),
(1784, 'mKHMtAKld1T3Wmn0HjJdSyXGr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Holder of Light Motor Vehicle driving license driving Transport Vehicle does not amount to fundamental breach of the insurance policy so as to avoid the liability of the insurance company. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Oriental General Insurance V. M. Shivamma<br></span><b>Miscellaneous First Appeal 2933 of 2012 decided on 1 April 2022<br>Justice Hanchate Sanjeevkumar&nbsp;</b></p><p><b>This appeal is filed under Section-173(1) of the&nbsp; Motor Vehicles Act, 1988 (‘MV Act’ for brevity) by the appellant - insurance company, challenging the judgment and award dated 05.09.2011, passed in MVC No.1612/2010, on the file of Motor Accident Claims Tribunal, at Bangalore.</b></p><p><b>Para 2- On 28.03.2009, at about 3.30 p.m., when the deceased Malla Reddy was walking on the extreme left side of the road in front of Manjunath Estate, on Kolar&nbsp; Bangalore Road (NH-4) at that time the driver of the Tata Ace bearing registration No.AP 03 X 0472 came in a rash and negligent manner with high speed and dashed against the deceased. Due to the impact, he fell down and sustained grievous injuries and died on the way to the Hospital. It is stated that the deceased was aged 63 years, and was working as a Watchman in Manjunatha Farm House and earning Rs.10,000/- per month.&nbsp;</b></p><p><b>Para 3- Hence, a claim petition was filed by the dependents-claimants under Section-166 of the M.V. Act. before the Tribunal claiming compensation. The Tribunal on appreciating the materials on record, allowed the petition in part, and awarded a compensation of Rs.1,97,500/- along with interest at 6% per annum, from the date of petition till the date of deposit. The Tribunal held respondent Nos.1 to 3 are jointly and severally liable to pay the compensation.</b></p><p><b>Para 4- The learned counsel for the appellant - insurance company submitted that the driver of the offending vehicle was holding Driving License to drive non- transport vehicle, but was driving goods vehicle (transport vehicle). Therefore, there is a violation of the condition of the insurance policy. Hence, the Tribunal without considering that there is a breach of condition of the policy, had erroneously fastened the liability on the appellant. Therefore, the appeal is liable to be allowed by exonerating the appellant-insurance company from the liability to pay the compensation.</b></p><p><b>Para 5- On the other hand, the learned counsel for respondent Nos.1 to 4 - claimants submitted that the Tribunal has correctly applied the legal principles and put the burden on the appellant – insurance company to pay compensation, which needs no interference. Therefore, prays to dismiss the appeal.</b></p><p><b>Para 7- In the present case, the offending vehicle is Tata Ace, which is a goods vehicle (transport vehicle). Exhibit-R2 is the Driving License of the driver, which shows the driver was having driving license to drive LMV (Non- Transport Vehicle). Therefore, the learned counsel for the appellant - insurance company contends that the driver was holding driving license to drive non-transport vehicle and hence cannot drive transport vehicle. This legal position is clarified by the Hon’ble Supreme Court in the judgment in the case of Mukund Dewangan vs Oriental Insurance Company Limited, reported in AIR 2017 SC 3668, wherein at para-10 it was held as follows:</b></p><p><b>\"45. Transport vehicle has been defined in section 2(47) of the Act, to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Public service vehicle has been defined in section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxicab, a motor cab, contract carriage, and stage carriage. Goods carriage which is also a transport vehicle is defined in section 2(14) to mean a motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. It was rightly submitted that a person holding license to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act. It was also rightly contended that there are several vehicles which can be used for private use as well as for carrying passengers for hire or reward. When a driver is authorised to drive a vehicle, he can drive it irrespective of the fact whether it is used&nbsp; &nbsp;for a private purpose or for purpose of hire or reward or for carrying the goods in the said vehicle. It is what is intended by the provision of the Act, and the Amendment Act 54/1994.</b></p><p><b>46.&nbsp; &nbsp;Section&nbsp; &nbsp;10&nbsp; &nbsp;of&nbsp; &nbsp;the&nbsp; &nbsp;Act&nbsp; &nbsp;requires&nbsp; &nbsp;a&nbsp; &nbsp;driver to hold a license with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre- amended position as well the post-amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of “light motor vehicle” in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never&nbsp; intended&nbsp; to exclude&nbsp; &nbsp; transport&nbsp; &nbsp; vehicles&nbsp; &nbsp; from&nbsp; &nbsp; the category of ‘light motor vehicles’ and&nbsp; for&nbsp; light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of&nbsp; such class also and the expression in Section 10(2)(e) of the Act ‘Transport Vehicle’&nbsp; would include medium goods vehicle, medium passenger motor&nbsp; &nbsp; &nbsp;vehicle,&nbsp; &nbsp; &nbsp;heavy&nbsp; &nbsp; &nbsp;goods&nbsp; &nbsp; &nbsp;vehicle, heavy passenger motor vehicle which earlier found place in section 10(2)(e) to (h) and our conclusion&nbsp; is fortified by the syllabus and rules which we have discussed. Thus, we answer the questions which are referred to us thus:</b></p><p><b>‘Light motor vehicle’ as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.</b></p><p><b>A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, ‘unladen weight’ of which does not exceed 7500 kg. and holder of a driving license to drive class of “light motor vehicle” as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the “unladen weight” of which does not exceed 7500 kg. That is to say, no separate endorsement on the license is required to drive a transport vehicle of light motor vehicle class as enumerated above. A license issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.</b></p><p><b>The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained “medium goods vehicle” in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and “heavy passenger motor vehicle” in section 10(2)(h) with expression ‘transport vehicle’ as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.</b></p><p><b>The effect of amendment of Form 4 by insertion of “transport vehicle” is related&nbsp; only&nbsp; to the categories which were substituted in the year 1994 and the procedure&nbsp; to obtain driving license&nbsp; for transport vehicle of class of “light&nbsp; motor&nbsp; vehicle” continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding license to drive light motor vehicle, he can drive transport vehicle&nbsp; of such class without any endorsement to that effect.\"</b></p><p><b style=\"background-color: rgb(255, 255, 0);\">Para 8- Therefore, just because there is an endorsement of non-transport in the driving license and if the driver drives transport vehicle, that cannot be a fundamental breach of the insurance policy so as to avoid the liability of the insurance company. Therefore, the Tribunal has correctly fastened the liability on the appellant-insurance company to pay the compensation. Hence the judgment and award passed by the Tribunal is justified one which needs no interference. Therefore, the appeal is devoid of merit and liable to be dismissed. Accordingly, I proceed to pass the following:</b></p><p><b>ORDER</b></p><p><b>The appeal is dismissed.</b></p><p><b>&nbsp;</b></p><p><br></p>', '171a03301932ab4458600008098f8ec2.jpg', 'c358ff52ac24b0b85d4341ffae1e3639.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-06', 1, '', '', '2022-06-06 17:57:38', '2022-06-06 08:24:20');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1791, 'jBfHJjdqkGDuGlvBGzYosjaZE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Provisions of CPC and Evidence Act are not applicable to proceedings under the Workmen’s Compensation Act. The Commissioner can lay down his own procedure and rely upon documents produced before it.  Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Maha Laxmi Hosiery Vs Govind Singh and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>FAO 548 of 2016 decided on 6 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Manoj Kumar</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. Brief facts, as borne out from the case records, are that respondent\r\nNo.1/Govind Singh (hereinafter, referred to as ‘the workman’) had filed a\r\nclaim application on 12.06.2005 seeking compensation under the Act for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">injury suffered by him during the course of his employment with the firms\r\nnamely, M/s Sanjeev Hosiery and M/s Maha Laxmi Hosiery. It was claimed\r\nthat he was working as a Machine Man since January, 2003/November,\r\n2005 and his last drawn salary was Rs.8,000/- per month.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The accident in question had taken place on 24.03.2008, at about\r\n03:30 pm, when the workman’s foot got stuck in a shaft, on account of\r\nwhich he fell down and suffered injury. It was claimed that the workman at\r\nthe time of the incident was about 33 years of age and had suffered disability\r\nof about 60%. It was also stated that the services of the workman were\r\nterminated on the same day i.e., the date of the incident. The learned\r\nCommissioner, while passing the impugned order allowed the claim petition\r\nof the workman and awarded him compensation of Rs.2,87,136/- alongwith\r\ninterest @ 12% from 24.04.2008 till deposit.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. Mr. Hari Kishan, learned counsel for respondent No.1, on the other\r\nhand, supported the impugned order/judgment by submitting that the\r\nworkman had duly proved the employer-employee relationship on the basis\r\nof Inspectors’ reports and statement of a co-workman. He further submitted\r\nthat in the proceedings before the Labour Court, the workman was unable to\r\nplace on record material in support of his case/lead evidence, and the issues\r\ncame to be decided by the learned Presiding Officer in absence of cogent\r\nmaterial. It was also submitted that the procedure before the Employee\r\nCompensation Commissioner is summary in nature and thus rules of\r\nevidence are not to be strictly followed. In support of his submissions, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reliance was placed by the learned counsel on the decision of the Gujarat\r\nHigh Court in Koli Mansukh Rana v. Patel Natha Ramji reported as 1990\r\nSCC OnLine Guj 164.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. A perusal of the case records would show that prior to approaching\r\nthe learned Employee Compensation Commissioner, the workman had also\r\nraised an industrial dispute regarding his termination by the management of\r\nfirm(s) in question. The same was decided vide Award dated 22.03.2011\r\npassed by Labour Court No.IX, Karkardooma Courts, Delhi, whereby the\r\nworkman’s claim was dismissed. The issue as to whether employeremployee relationship existed between the appellant and the workman was\r\nframed in course of the proceedings and decided against the workman,\r\nconsidering that he neither deposed himself nor led evidence in support of\r\nhis case.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. Before the learned Commissioner, the workman’s case was that on\r\n24.03.2008, when he was working on his machine, the Manager orally\r\ndirected him to look after the machine of another workman. At that time, his\r\nfoot got stuck in a shaft resulting in fall and consequent injuries. He\r\nremained in Trauma Centre of Lok Nayak Hospital from 24.03.2008 to\r\n28.03.2008. In this regard, he exhibited the medical records as Ex. WW-1/5\r\nto Ex. WW-1/7. He further deposed that on 10.04.2008, he had given a\r\ncomplaint to P.S. Saraswati Vihar through Union, copy of which was\r\nexhibited as Ex. WW-1/8. The disability certificate from Sanjay Gandhi\r\nMemorial Hospital, Mangol Puri was exhibited as Ex. WW-1/15. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">workman also exhibited Labour Inspector Report, Factory Inspector Report\r\nand Report of Deputy Director, ESI as Exhibits WW-1/1, 1/3 and 1/4\r\nrespectively.\r\nIn his cross-examination, he admitted that he had no documents\r\navailable in support of his claim that he was employed with the appellant for\r\nsalary @ Rs.8,000/- per month since November, 2005 or any other dates. He\r\ndenied that exhibits Ex. WW-1/1 to Ex. WW-1/3 were forged. The workman\r\nalso examined his co-worker/Rakesh Sharma in support of his case, who\r\nstated that the workman was working with him in the aforesaid firm(s) and\r\nsuffered the injury during the course of his employment.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. The witness Rakesh Sharma appeared and tendered his evidence by\r\nway of affidavit, wherein he stated that he was employed with the firms\r\nfrom 2006 till 31.05.2008 as a machine man on a salary of Rs.8,000/- per\r\nmonth. Both the firms were being run from the same premises by two\r\nbrothers, namely Mr. Sanjeev Ahuja and Mr. Mukesh Ahuja, and were not\r\nregistered. The manager(s) used to give oral instructions to the workmen and\r\nhad kept them deprived of facilities/documents like appointment letter,\r\nIdentity Card, attendance card, etc. The injured workman was employed in\r\nthe same establishment since 2005 and on 24.03.2008, he suffered injuries\r\nwhen his foot got stuck in the shaft. When an Inspector visited the premises\r\nwith respect to release of wages to the workman, the proprietor(s) admitted <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that wages remained to be paid to the workman and assured that the\r\nremaining wages would be released as and when he would come. The\r\nmanagement had tried to settle with the workman through the witness but\r\nthe same could not be worked out, and as a result, the management\r\nterminated the services of the witness as well.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. It is borne out from the record that after the incident, a report dated\r\n09.06.2008 was forwarded by the Labour Inspector, District North West to\r\nthe office of Commissioner, District North West, GNCTD, Delhi. In the\r\nsaid report, it was stated that on a receipt of a complaint and order of the\r\noffice, the Inspector visited the establishment on 15.04.2008, where he met\r\nmanager-Sanjeev Ahuja who confirmed that the workman had suffered\r\ninjury on account of a fall. It was further stated that as per the manager, the\r\nworkman could collect his remaining salary if he so desired. It was also\r\nstated that the owner admitted having incurred Rs.5000/- towards expenses\r\nin the treatment of the workman. The report also mentioned that the\r\nmanagement failed to show any kind of record, for which purpose they were\r\nasked to visit the office on 21.04.2008 alongwith the attendance records.\r\nHowever, the management neither appeared nor sent any record. The report\r\nwas exhibited as Ex. WW-1/1 by the workman.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. The appellant had filed before the learned Commissioner copies of\r\nattendance register and payment of wage register for the relevant period, to\r\ndisprove the claim of the workman that he was employed with the firm(s) in\r\nquestion. In this regard, reliance was placed by the appellant in the present\r\nproceedings on the decision in Automobile Assoc. Upper India (Supra). This\r\nCourt, in the captioned case, had indeed held that the workman, either\r\nhimself or through witnesses, can establish engagement and appointment in\r\nservice by directly producing appointment letter, etc. or through\r\ncircumstantial evidence such as attendance register, salary register, etc. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Be that as it may, the facts of the present case are different, inasmuch\r\nas the workman has claimed that no appointment letter, identity card,\r\nattendance card, etc. was ever given to him by the management in question.\r\nThe statement of the workman to this effect is supported by that of coworkman-Rakesh Sharma, who was admittedly an employee of the firm(s)\r\non the date of the accident and stated that such documents were not provided\r\nto employees by the management. It has also come on record by way of the\r\nInspectors’ reports that the firm(s) in question was not registered.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>18. Keeping in view the fact that the statement of the workman is\r\nsupported by co-workman-Rakesh Sharma, as well as reports of the</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(i)\r\nLabour Inspector,</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(ii) Inspector of Factories and</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(iii) Deputy Director, ESIC,\r\nthis Court is of the opinion that the learned Commissioner rightly reached at\r\nthe conclusion that respondent No.1/workman was working with the\r\nfirm(s)/management in question at the time of accident and that the accident\r\noccurred during the course of his employment on 24.03.2008.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>19. Although the learned counsel for the appellant has raised a contention\r\nthat the aforesaid reports were not proved by the concerned scribe, this\r\nCourt deems it apposite to refer in this regard to the decision of the Supreme\r\nCourt in Om Prakash Batish v. Ranjit alias Ranbir Kaur and Others reported\r\nas (2008) 12 SCC 212, wherein it was held that in proceedings before the\r\nCommissioner under the Workmen’s Compensation Act, the provisions of\r\nCode of Civil Procedure and Evidence Act are not applicable. The\r\nCommissioner can lay down his own procedures and for the purpose of\r\narriving at the truth, rely upon such documents which are produced before it.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. Having concluded that respondent No.1/workman was able to\r\nestablish his case before the learned Commissioner, the appeal is dismissed.\r\nMiscellaneous applications are disposed of as infructuous. The interim\r\ndirections contained in order dated 28.11.2016 passed by this Court, and the\r\nsubsequent orders, are vacated. The learned Commissioner is directed to\r\nrelease the compensation amount in favor of the workman forthwith.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '552f65f2067f332bb38c8cd9b409e824.png', 'd0708d3971d6dd9f5f1054dca68bed10.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-08', 1, '', '', '2022-06-07 18:31:18', '2022-06-08 06:21:19'),
(1787, 'mxQp5rXzCAdPeTTOTLe8skliU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Judicial decision is as per law, administrative decision is as per policy & quasi-judicial function lying in between is an administrative function to be exercised in some respects as if it were judicial. Supreme Court explains. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>National Securities Depository Ltd vs Securities and Exchange Board of India.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5173 of 2006 decided on March 7 2017.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Pinaki Chandra Ghose and Justice R.F. Nariman.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The present appeal raises an interesting question as to whether\r\nan administrative circular that is issued by SEBI under Section 11(1) of\r\nthe Securities Exchange Board of India Act, 1992, can be the subject\r\nmatter of appeal under Section 15T of the said Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. By an administrative circular dated 9th November, 2005, SEBI\r\nunder the caption “review of dematerialization charges” issued an <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">administrative circular under Section 11(1) of the SEBI Act to protect\r\nthe interests of investors in securities and to promote the development\r\nof, and to regulate the securities market. Depositories were advised\r\nby the said circular to amend all relevant bye-laws, rules and\r\nregulations in order to see that with effect from 9th January, 2006, no\r\ncharges shall be levied by a depository on DPs and consequently by a\r\nDP on a beneficiary owner when a beneficiary owner transfers all\r\nsecurities lying in his account to another branch of the same DP or to\r\nanother DP of the same depository or another depository, provided the\r\nBO account at transferee DP and that transferor DP are identical in all\r\nrespects.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. A preliminary objection was raised in the appeal filed by the\r\nrespondent before the Securities Appellate Tribunal. It was urged that\r\nunder the SEBI Act, SEBI has administrative, legislative and\r\nquasi-judicial functions. Appeals preferred to the Securities Appellate\r\nTribunal can only be from quasi-judicial orders and not administrative\r\nand legislative orders. This preliminary objection was turned down by\r\nthe impugned judgment dated 29th September, 2006, by the Securities\r\nAppellate Tribunal. According to the Tribunal, the expression “order”\r\nis extremely wide, and there being nothing in the Act to restrict an\r\nappeal only against quasi-judicial orders, appeals would lie against all </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">three types of orders under the Act i.e. administrative orders,\r\nlegislative orders as well as quasi-judicial orders. This was held\r\npurportedly following the decision in Clariant International Ltd. &\r\nAnr. vs. Securities & Exchange Board of India [(2004) 8 SCC 524].\r\nThe Tribunal, therefore, rejected the preliminary objection and went\r\ninto the merits of the arguments against the impugned circular, and\r\ndismissed the same.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. It was urged on behalf of the appellant in the second civil appeal\r\nthat the appeal filed under Section 15T of the SEBI Act is only\r\nrestricted to quasi-judicial orders and not administrative or legislative\r\norders or directions passed by SEBI under the 1992 Act. According\r\nto the learned counsel on behalf of the appellant, the Appellate\r\nTribunal judgment is wrong and needs to be reversed inasmuch as it <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">has clearly stated that even against legislative regulations, the\r\nAppellate Tribunal would have jurisdiction, which is contrary to two\r\ndirect judgments under allied Acts namely, PTC India Ltd. vs.\r\nCentral Electricity Regulatory Commission [(2010) 4 SCC 603]\r\nunder pari materia provisions under the Electricity Act, 2003, and\r\nBharat Sanchar Nigam Ltd. vs. Telecom Regulatory Authority of\r\nIndia & Ors. [(2014) 3 SCC 222] under the Telecom Regulatory\r\nAuthority of India Act, 1997. He stated that the same fate would await\r\nadministrative orders as well and that the reasoning of these two\r\njudgments would lead us necessarily to this conclusion.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Also, appeals are to be filed by persons aggrieved not only by\r\nan order of the Board made under the SEBI Act, Rules or Regulations,\r\nbut by orders made by an adjudicating officer under the Act. Under\r\nSection 15-I, the Board can appoint an officer not below the rank of a\r\nDivision Chief to be an adjudicating officer to hold an inquiry, give a\r\nhearing to the person concerned and thereafter impose a penalty, all\r\nof which points to only quasi-judicial functions being exercised by such\r\nofficers. Under sub-section (3) of Section 15T, every appeal is to be\r\nfiled within a period of 45 days from the date on which a copy of the\r\norder made by the Board or the adjudicating officer, as the case may\r\nbe, is received by him. Generally administrative orders and legislative\r\nregulations made by the Board are never received personally by “the\r\nperson aggrieved”. This is another pointer to the fact that the order\r\nspoken of in sub-section (1) of Section 15T is only a quasi-judicial <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">order. Also, it is important to note under sub-section (4) that the\r\nAppellate Tribunal may ultimately pass orders confirming, modifying or\r\nsetting aside the order appealed against. In the Clariant judgment\r\nreferred to hereinabove, paragraph 74 clearly states that “the\r\njurisdiction of the appellate authority under the Act is not in any way\r\nfettered by the statute and thus it exercises all the jurisdiction as that\r\nof the Board”. This being the case, it is clear that the appeal being a\r\ncontinuation of the proceeding before the Board, the proceeding can\r\nonly be quasi-judicial in nature.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Yet another indicator can be found under sub-section (5) of\r\nSection 15T by which a copy of every order made by the Appellate\r\nTribunal is to be sent to the Board, the parties to the appeal and to the\r\nconcerned adjudicating officer. The concerned adjudicating officer\r\nand the parties to the appeal obviously refer only to persons involved\r\nin a quasi-judicial proceeding.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Under Section 15Z of the Act, an appeal lies from any “decision\r\nor order” of the Securities Appellate Tribunal to the Supreme Court on\r\nquestions of law arising out of such orders. Obviously, these orders\r\nare also quasi-judicial in nature. All this leads to distinctions between\r\nquasi judicial and administrative orders that have to be made on first\r\nprinciples. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. This statement of the law has been followed in Shivji Nathubhai <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">vs. Union of India & Ors. [(1960) 2 SCR 775], where the question\r\nwhich faced the Supreme Court was whether the Central\r\nGovernment’s power under Rule 54 of the Mineral Concession Rules,\r\n1949, to review administrative orders could be stated to be in a\r\nquasi-judicial capacity. After setting out Lord Justice Atkin’s passage\r\nin Advani’s case (supra), this Court held that three requisites were\r\nnecessary in order that the act of an administrative body be\r\ncharacterized as quasi-judicial :</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(i) There must be legal authority;</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(ii) This authority must be to determine questions affecting the rights\r\nof subjects; and</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(iii) There must be a duty to act judicially.\r\nApplying the aforesaid tests, it was held that the Central\r\nGovernment’s power of review under Rule 54 was quasi-judicial in that\r\nthere is legal authority to determine questions affecting the rights of\r\nsubjects and the duty to act judicially which involves a hearing and a\r\ndecision on the merits of the case.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. Two other decisions give us an interesting insight into the\r\ndifference between administrative and quasi-judicial orders. In\r\nJayantilal Amrit Lal Shodhan vs. F.N. Rana & Ors. [(1964) 5 SCR\r\n294], this Court held that the report of a Collector made under Section\r\n5A of the Land Acquisition Act is an administrative decision despite the\r\nfact that the Collector has to give the objector an opportunity of being <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">heard. This was held because the Collector is not required to arrive at\r\nany decision on the lis presented to him. He has to submit the case\r\nfor the decision of the appropriate Government together with a report\r\ncontaining recommendations on objections. It is thus clear that the\r\nCollector’s report would not determine any question that affects rights\r\neven though there may be a duty to act judicially in the sense that the\r\nCollector has to hear objectors before him before making his report.\r\nSimilar is the case in Govindbhai Gordhanbhai Patel & Ors. vs.\r\nGulam Abbas Mulla Allibhai & Ors.[(1977) 2 SCR 511]. This\r\njudgment decided that the function of a Collector under Section 63(1)\r\nproviso of the Bombay Tenancy and Agricultural Lands Act is\r\nadministrative and not quasi-judicial. In arriving at this conclusion this\r\nCourt referred to various earlier decisions of this Court, which had\r\nheld that an Advocate General granting or refusing sanction under\r\nSection 92 of the Civil Procedure Code was an administrative\r\ndecision, just as granting or withholding sanction to file a suit under\r\nSection 55(2) of the Muslim Wakfs Act, 1954, is also an administrative\r\ndecision. An order made in a reference under Section 10 of the\r\nIndustrial Disputes Act is similarly an administrative order. In each of\r\nthese three cases no lis is decided on merits affecting the rights of the\r\nsubject, and this is the reason why these decisions have been held to\r\nbe administrative and not quasi-judicial in nature. One other judgment </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">may be referred to. In N. Misra vs. Dr. H.K. Paintal [(1990) 2 SCR\r\n84] this Court held following a passage in Wade’s Administrative Law\r\nthat a judicial decision is made according to law, whereas an\r\nadministrative decision is made according to administrative policy. A\r\nquasi-judicial function lying somewhere in between is an\r\nadministrative function which the law requires to be exercised in some\r\nrespects as if it were judicial. A quasi-judicial decision is, therefore, a\r\ndecision which is subject to a certain measure of judicial procedure.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. It may be stated that both Rules made under Section 29 as well\r\nas Regulations made under Section 30 have to be placed before\r\nParliament under Section 31 of the Act. It is clear on a conspectus of\r\nthe authorities that it is orders referable to Sections 11(4), 11(b), 11(d),\r\n12(3) and 15-I of the Act, being quasi-judicial orders, and quasi judicial\r\norders made under the Rules and Regulations that are the subject\r\nmatter of appeal under Section 15T. Administrative orders such as\r\ncirculars issued under the present case referable to Section 11(1) of\r\nthe Act are obviously outside the appellate jurisdiction of the Tribunal\r\nfor the reasons given by us above. Civil Appeal No.186 of 2007 is,\r\ntherefore, allowed and the preliminary objection taken before the\r\nSecurities Appellate Tribunal is sustained. The judgment of the\r\nSecurities Appellate Tribunal is, accordingly, set aside.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. In this view of the matter, Civil Appeal No.5173 of 2006 being a\r\nchallenge to the merits of the impugned circular, has necessarily to be\r\ndismissed. We make it clear that liberty is granted to take appropriate\r\nsteps in judicial review proceedings to challenge the aforesaid circular <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in accordance with law. Civil Appeal No.5173 of 2006 is disposed of\r\naccordingly.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ff8f170f01121309df7d00a932dcaf57.jpeg', 'f29c099d414be57ad0e199a546532133.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-08', 1, '', '', '2022-06-06 19:18:55', '2022-06-08 08:22:02');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1789, 'OlyzjPD8LGdJGbFKW1Uu1f2Y9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Public nuisance. Executive Magistrate must afford sufficient opportunities to the parties and record evidence and arrive at a legal finding that the action complained has resulted in nuisance to  the general  public at large. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Achut D. Nayak and others Vs  The Sub Divisonal Magistrate Sirsi Division and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 100284 of 2019 decided on 26 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V. Srishananda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The petitioners have established a  poultry  farm  in the agricultural land belonging to them bearing survey Nos.4/1 and 4/2 of Bandal Village, Sirsi Taluk. A notice came to be issued by  the Tahasildar directing the petitioners to close the poultry farm on  the  ground  that the poultry farm is  creating  nuisance  to  the  general public and also directed to show cause as to why the preliminary order could not be made absolute. The said notice bearing No.MAG/II/ViVa/I/2016-17 was issued on 29.11.2016.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Thereafterwards, the petitioners  appeared before  the Assistant Commissioner, Sirsi Sub-Division and filed their objections to the show cause notice. Without  recording the evidence of the parties, the 1st respondent, who is the Sub-Divisional Magistrate, passed an order on 19.12.2016 to the effect that the preliminary order passed  in the case is made absolute. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Again the said order was challenged by  the petitioners herein before the 1st Additional District and Sessions Judge, UK Karwar, sitting at Sirsi, in Crl.RP No.5072/2016 and the learned District Judge,  after hearing the parties, dismissed the Revision  Petition,  which is under challenge before this Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. In the petition the following grounds have been raised:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space:pre\">	</span>That the Sub-Divisional Magistrate failed to apply his mind while passing impugned order as per Annexure B without recording evidence of the. parties. When Section 133 of the Criminal Procedure Code is invoked, judicial) discretion is mandatory. But in the case on hand, admittedly the Petitioners are engaged in agricultural work i. e. poultry farming in their agricultural lands, learned magistrate failed to record evidence and also failed to look into the root of the case, as whether the alleged complaint comes under Section 133 to 138 of the Criminal Procedure Code or not and hence the order is against the principles of law. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ii.<span style=\"white-space:pre\">	</span>That the provisions of Section 133 of the  Criminal  Procedure Code provide a speedy and summary remedy in case of a urgent situation where there is  at  imminent danger to public interest or public health. In all other cases, the parties should be referred to the remedy under the ordinary law of land. The idea is that if immediate steps are not taken, irreparable injury will be done. Extraordinary powers are meant to be exercised under extra-ordinary circumstances. But in this case, without any valid reasons and without verifying the alleged reports as to whether the authorities had complied with the procedure laid down by  the respective laws before preparing such reports, Respondent - 1 has proceeded under Section 133 of the Criminal Procedure Code.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>iv.<span style=\"white-space:pre\">	</span>That since 2000, the Petitioners are running their poultry- farm over their own lands. Admittedly, in the jurisdiction of Bandal Panchayat, there are nearly 24 to 25 poultry-farms. At this juncture, some persons who are inimicallu disposed of have moved an application by misusing the provisions of Section 133 of the Criminal Procedure Code with the allegations of entire activities of Petitioners are illegal and which effects the health of  the  neighbouring  residents. Even before the Sessions Court, certain applications were moved to prejudice the mind of the Court. It clearly shows that some persons trying to harm Petitioners\' poultry-farm under the guise of removal of public nuisance that may cause injury later. But the provisions of Section 133 of the Criminal Procedure Code apply only when there are compelling immediate circumstances existing and not to potential nuisance i e. to what may become nuisance in the future. Such orders cannot be passed on imagination of nuisance. Hence, the impugned orders are untenable in the eye of law. Respondent 1 and the Sessions Court have failed to examine the facts of case against the provisions of law on public nuisance amounting to abuse of process of law. Hence, the impugned orders are liable to be set aside.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>vi.<span style=\"white-space:pre\">	</span>That Respondent - 1 has failed to  consider  the  matter under the provisions of Sections 133 & 138 of the Criminal Procedure Code while passing impugned order, as  \'nuisance is an inconvenience which materially interferes with the ordinary physical comfort of human existence. It is not capable of precise definition. To bring in application of Section 133 of the Code, there must be imminent danger to the property and consequential nuisance to the public. The nuisance is the concomitant act resulting in danger to the  life or property due to likely collapse. The object  and purpose behind Section 133 of the Code is essentially to prevent public nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately. irreparable damage would be done to the public. It applies to a condition of the nuisance at the time when the order is passed and it is not intended to apply to future likelihood or what may happen at some later point of time. Hence, the order under Section 138 of the Criminal Procedure Code which confirmed by the Sessions Court is liable to be set aside.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>vii.<span style=\"white-space:pre\">	</span>That the Respondents herein and the Sessions Court failed to understand that no license is required to run a poultry- farm under any law. The provisions of Section 2 of the Karnataka Land Reforms Act, 1961 clearly state that poultry-farming is part of agriculture. Section 2(1)  of  the said Act reads as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(A)<span style=\"white-space: pre;\">	</span>In this Act, unless the context otherwise requires, ((1) \"Agriculture includes -</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a)<span style=\"white-space: pre;\">	</span>aquaculture.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(aa) horticulture,</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b)<span style=\"white-space: pre;\">	</span>the raising of crops, grass or garden produce;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(c)<span style=\"white-space: pre;\">	</span>dairy farming:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(d)<span style=\"white-space: pre;\">	</span>poultry-farming:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(e)<span style=\"white-space: pre;\">	</span>breeding of livestock;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(f)<span style=\"white-space: pre;\">	</span>grazing.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Poultry-farming is an agricultural activity. One doesn\'t  need a license to engage in agricultural activities. Such being the legal position, no license is required to carry on poultry- farming. Hence, there is no question of the  Gram  Panchayat issuing or cancelling any license to carry on agricultural activities, The provisions of the Karnataka Land Reforms Act, 1961 or Karnataka Gram Swaraj and Panchayat Raj Act, 1993 do not contemplate issue of a license for carrying on agriculture or agricultural activities. Hence, the impugned orders based on erroneous findings are liable to be set aside.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"> viii.<span style=\"white-space: pre;\">	</span>Petitioners are agriculturists carrying on agricultural activity over agricultural lands. They are not into any illegal trade or occupation. Apart from valuable agricultural land, the Petitioners have invested substantial time, money and </font></span><font face=\"Calibri, sans-serif\">energy over the past several years. They have raised big loans also and they are  already  under  tremendous pressure to repay the same. Poultry-farming  is  a  continuous process and if there is any interruption, the livestock will be put to peril. Poultry-farming is Petitioners\' source of livelihood and they are neither qualified nor in a position to take up any other vocation at this stage of life. Article 19 of the Constitution of India guarantees their fundamental right to practice any profession or to carry on any occupation. Such lawful occupation cannot be taken away from them in this manner. The rights that are further guaranteed under Articles 14 & 21 of the Constitution are to be ensured to be made available to the Petitioners also. Poultry-farming provides health and revenue to the nation. Poultry-farming is the main source of rural  employment.  The State is required to promote and improve agriculture  and poultry farming. Having regard to the innumerable benefits that accrue to the villagers, agriculturists and other citizens, it is the duty of the State to support.  and  encourage poultry-farming.</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>x.<span style=\"white-space:pre\">	</span>That the Respondents failed to consider that in so far as disposal of bird droppings is concerned, the Petitioners remove the same periodically from the farm and sell to farmers as manure. The bird-droppings are willingly purchased and used by farmers as manure.  Such manure  is considered to be highly beneficial and it is very much in demand by the farmers. It may be noted that Petitioners spread a layer of paddy husk on the floor inside the cages. Such a step ensures elimination of  moisture,  smell,  etc. and helps the farm to be dry & clean all the time. Even otherwise, after due verification, if the Respondents come   to the conclusion that the Petitioners\' farm is going wrong, they have to hear the owner/ occupier and prescribe remedial measures first. Upon notice to such an erring poultry-farm, an opportunity should be given for correction. Only in case of failure to take corrective steps, penal action can be contemplated. The Respondents cannot  straightaway order closure of a poultry-farm.  On the basis  of unverified allegations, the Respondents cannot take  action against the Petitioners. One should understand that poultry-farming, which is part of agriculture, is also very much essential for the existence of mankind and for the community / society. Poultry products are high in  protein and they are the most complete food available in nature. It   is an irony that though most of us  consume  poultry products, no one wants a poultry-farm.  Having  regard  to the lifetime of the birds that are being reared by the Petitioners, the Respondents ought not to have ordered removal.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Reiterating the  above  grounds, learned counsel for the petitioners contended that the  action  of the respondents is totally illegal and when  the poultry  farm has been established in the private land, there is no authority for the respondents to initiate action under the provisions of Sections 133, 137 and  138  of  the  Cr.P.C and therefore, the order passed by the respondents is without any legal authority and thus  sought for allowing  the petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. It is an admitted fact that the poultry farm is established in a private land belonging to the petitioners.  To fortify the said contention, learned counsel for the petitioners drew the attention of this Court to the record  of rights. As could be seen from the record of rights, the land in which the poultry farm is situated belongs to the petitioners and it is an agricultural land. The term ‘agriculture’ in its wide connotation encompasses itself into it the activities allied to the agricultural  operations. It cannot be disputed that the poultry farming  is  part of the agricultural operations. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. Further, as could be seen from the material on record, the poultry farm is situated about 3 kms  away  from the place where the residences of the general public are situated. What exactly is the type  of  nuisance  that has been caused to the general public at large by establishing such a poultry farm in the private land owned by the petitioners is not  forthcoming  on  record.  No material is forthcoming on record placed by the respondents, wherein the general  public  being complained about the nuisance.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. In this regard this Court places its reliance on  the decision of this Court in the case of Balakrishna Rao Vs. State of Mysore and Others reported in 1973 (1) Mysore Law Journal page 362. In the  said  decision, it has been categorically held that the evidence has to be recorded by the Magistrate. It is further observed that, though the spot inspection was conducted in the  said  case, the evidence was not taken by the Magistrate and therefore, the decision taken by the Magistrate did not satisfy the requisite conditions to pass  the  order  under the provisions of Section 137  Cr.P.C.  In  the case  on  hand also, the Executive Magistrate failed to record evidence and satisfy about the alleged nuisance.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. The power under Sections 133, 138 and 139 Cr.P.C. has to be exercised by affording sufficient opportunities to the parties and to record evidence and to arrive at a legal finding that the action of the  petitioners  has resulted in nuisance to  the general  public  at  large. No such  material  is  forthcoming  on  record. Unfortunately, these aspects of the matter are not taken note of by  the respondents and also not properly appreciated by the learned District while dismissing the revision petition of the petitioners.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'bce99b675e1362067f7cac3ff6e34596.JPG', '59f3ba139b7782a4ef69b15452d20ad8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-07', 1, '', '', '2022-06-07 17:43:05', '2022-06-07 12:25:36'),
(1790, 'wi9dxGIu3C92XMf176N5NGCXH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Though a Society cannot be characterized as a \'State\' within the meaning of Article 12 of the Constitution of India, a Writ would lie against it to enforce a statutory public duty cast upon the Society. Madras High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K. Ravichandran and others Vs The Chief Secretary Government of Pondicherry and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P 1205 and others of 2015 decided on 1 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.S. Ramesh.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. In all these Writ Petitions, the petitioners herein are the exemployees of three Co-operative Societies namely,</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>a) Puducherry\r\nPublic Servants Co-operative Stores P-456;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>b) Ariyankuppam Public\r\nServants Stores P-455; and</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>c) Bharathi Co-operative Consumer\r\nStores Ltd., P-564.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioners herein were employed as\r\nSalesman / Assistant Clerk / Supervisors and had put in services\r\nbetween 20 to 25 years. As per the bye-laws of these Societies, the\r\nemployee who have put in more than five years of continuous <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">service in the stores shall be entitled for gratuity, apart from other\r\nservice benefits including earned leave encashment, EPF\r\ncontributions, ESI benefits and other admissible entailment. Around\r\nthe year 2011, these Co-operative Stores were running on loss,\r\nwhich prompted the Government of Puducherry (hereinafter\r\nreferred to as \'Government\') to constitute a Rehabilitation\r\nCommittee for improving the functioning of the Stores and to\r\nprovide alternate employment to their staffs. By the month of\r\nMarch and April 2007, the salaries payable to the petitioners were\r\nstopped and ultimately on 22.01.2013, the Government had\r\nordered for winding up of all these Stores. Consequently, the affairs\r\nof these Stores were handed over to the Liquidator. Thereafter, the\r\nGovernment had initiated efforts to accommodate the employees of\r\nthe Stores including the petitioners herein in other Stores and\r\nSocieties, which proved futile. The petitioners herein now seek for\r\ndisbursement of their unpaid salaries, gratuity, earned leave\r\nencashment, EPF Contributions, ESI benefits and other admissible\r\nentailments along with interest.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The management of the affairs of the Co-operative\r\nSocieties Stores are governed by the Board of Executive Committee\r\nmembers comprising of Directors, who are the employees of various\r\nDepartments of the Government of Puducherry. The Managing\r\nDirector is an official of the Co-operative Department of the\r\nPuducherry Government. The Government infuses share capital\r\nevery year to the Stores. The object of the Societies is to cater to\r\nthe various needs to the employees of the Government of\r\nPuducherry. When these Societies were running on loss, the\r\nRegistrar of Co-operative Societies constituted a Rehabilitation\r\nCommittee for revitalization and to make them financially sound.\r\nHowever the rehabilitation efforts failed. The Government thereafter\r\ninitiated efforts to provide alternate employment to the staffs of\r\nthese three Societies including these petitioners, which also did not\r\nfructify. It is in this background that the Government had ordered for winding up these stores on 22.01.2013 and a Liquidator was\r\nappointed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Under the bye-laws, all these petitioners are entitled for\r\npayment of gratuity amount, since they have put in required\r\nnumber of years of service. Likewise, the Provident Fund deducted\r\nfrom the salary of the employees were utilised in the business of\r\nthese Stores for many years, without depositing the deductions to\r\nthe CPF contributions. Disappointingly, the Liquidator has now\r\nreported that all these Stores do not own any movable or\r\nimmovable assets, which could be salvaged to meet the claims of\r\nthese petitioners. Though the Government was instrumental in\r\nforming the Societies and stepping into the affairs of the Societies\r\nwhen they were facing the loss by taking efforts unsuccessfully to\r\nrehabilitate and provide alternate employment, they are now trying\r\nto wriggle out of the situation by stating that they are not liable for\r\npayment of the salaries and other dues to these petitioners on the\r\nground that these Socieites are not State Owned Societies.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. In identical circumstances, in the case of Parimal\r\nChandra Raha and Others V. Life Insurance Corporation of\r\nIndia and Others reported in 1995 Supp (2) SCC 611, when the\r\nemployees of the canteens run by Co-operative Societies made <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">claims from LIC, a stand was taken that since the canteens were not\r\nrun by LIC and its employees were not the employees of LIC, they\r\nare not liable to make the payments. The Hon\'ble Supreme Court,\r\ntook not of the role of the Corporation vis-a-vis, the Co-operative\r\nSocieties canteens and found that the Co-operative Societies\r\ncanteens are in reality the agencies of LIC and by lifting the veil\r\nbetween the Corporation and the Co-operative Societies\' workers,\r\nfixed the liability on LIC</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. The facts in hand are identical to that of the case in\r\nParimal Chandra Raha (supra). If the ratio extracted above is\r\napplied to the facts of the case in hand, it is seen that the\r\nGovernment of Puducherry had also involved itself in the affairs of\r\nthe Co-operative Societies at the time of its inception, as well as its\r\nunsuccessful efforts of rehabilitation of the Societies and for\r\nproviding re-employment to its workers.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Insofar as the first ground of maintainability of these Writ\r\nPetitions are concerned, the learned Government Pleader placed\r\nreliance on the decision of the Hon\'ble Five Judges Bench of this\r\nCourt in K.Marappan (supra), to highlight the proposition that when\r\na Society cannot be characterised as a \'State\', the service conditions\r\nof its employees are governed by its bye-laws, which cannot be\r\nenforced through a Writ Petition. K.Marappan\'s case (supra) may <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not be of much assistance to the respondents, since it is also held\r\ntherein that even if a Society cannot be characterized as a State\r\nwithin the meaning of Article 12 of the Constitution of India, a Writ\r\nwould lie against it to enforce a statutory public duty cast upon the\r\nSociety.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. As already held, the duty cast on the Government in the\r\npresent case, is a public duty and therefore the present Writ\r\nPetitions seeking to enforce such a public duty, would be\r\nmaintainable against a Co-operative Society, in view of\r\nK.Marappan\'s case (supra).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. For all the foregoing reasons, a Writ of Mandamus is\r\nhereby issued, directing the Chief Secretary to Government of\r\nPuducherry; the Secretary (Co-operation), Government of\r\nPuducherry and the Registrar of Co-operative Societies, Government\r\nof Puducherry to pass orders, in favour of each of the petitioners\r\nherein, for disbursement of their unpaid salaries, earned leave\r\nencashment, EPF Contributions, ESI benefits and other admissible\r\nentailments, due to them for their respective services under the Cooperative Societies namely,</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>a) Puducherry Public Servants Cooperative Stores P-456;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>b) Ariyankuppam Public Servants Stores P455; and</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>c) Bharathi Co-operative Consumer Stores Ltd., P-564\r\nrespectively, within three months from the date of receipt of a copy\r\nof this order.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>All the Writ Petitions stands allowed accordingly.\r\nConsequently, the connected Miscellaneous Petition is closed. There\r\nshall be no orders as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '847905b7b5c23a7ef54146b3766179cd.jpeg', 'f298be78064ee43996e852297622f420.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-08', 1, '', '', '2022-06-07 18:08:57', '2022-06-08 12:21:23'),
(1792, 'VCxJvboAZIxlGNYJbhiOsy30P', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Upload and update contact details of persons in-charge of litigation in the local bodies on the official websites for the effective service of court notices’’. Karnataka High Court directs the Principal Secretary to Govt.  ', '<p><b>Appasab Dhareepa Magadum Vs Asst. Commissioner Sub Division Chikkodi.<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Writ Petition 108026 of 2015 decided on 5 April 2022.<br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice Suraj Govindaraj.</b></p><p><b>The grievance of the petitioner is that, the petitioner, who is running a cement business in shop No.12 at Raibag Railway Station, was issued a notice/order dated 16.03.2012, directing him to vacate the premises on or before 23 12 2012. The said order dated 16.03.2012 is on the basis of the oral instructions of the respondent No.1, based on an alleged complaint of respondent No.4, without giving an opportunity of being heard to the petitioner.</b></p><p><b>3. Subsequently, the petitioner filed necessary proceedings challenging the said notice under Section (2) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as ‘the Act’, for short), which came to be dismissed on the ground that the respondent No.3 is not an Estate Officer and therefore, no powers can be exercised under Section 9(2) of the Act.  The  petitioner was relegated  to file necessary proceedings before the respondent No.2 in appeal against the order passed by the  respondent  No.3. The petitioner therefore filed an appeal, which came to be disposed of vide order dated 28.04.2015, which is under challenge in these proceedings.</b></p><p><b>4. Sri. Rajeshekhar Burji, learned counsel for the petitioner, would submit that the impugned order at Annexure-A is only   a cut and paste order inasmuch as page Nos. 1 and half portion of page No.2 are extracts of the appeal memo  filed  by the petitioner. The second half of page No.2, the entire page No.3 and the half portion of page No.4 are the verbatim reproduction of the objections filed by respondent No.2 and the final order is only four lines, wherein the appeal of the petitioner has been rejected and the order of the 3rd respondent has been confirmed. Thus, he submits there is complete lack of application of mind. None  of  the  contentions of the petitioner have been considered and no deliberation having occurred in the said order, the said order is required to be quashed.</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. Notice having been issued to respondent Nos. 2 and 3, though they have been served, none has entered  appearance for the said respondents. Thus, the order is not defended.</b><br></p><p><b>9. The order under challenge is one more classic case of an order passed by Executive Officer exercising quasi-judicial functions, which does not contain any reasons. This Court  has come across in several matters the practice of copying and posting the appeal memo and objections and finally the order is 4 to 5 lines. In most of these orders, there is no application of mind, this is probably because they have no training in writing orders. The contentions are not even deliberated upon or considered. The applicable  law  is  neither applied nor considered, the order being completely in violation of the applicable procedures, are more often than  are set aside by this Court like that which is required to be done in the present matter. When such orders are passed by the Executive Officer of Taluka Panchayat or Gram Panchayat, though notice is ordered, none appears and the matter goes uncontested. Apart there from, there is no assistance rendered to the Court while dealing with the said matters because of such non-appearance. Only the Government Advocate or the learned HCGP appears in the matter, who has no instructions and they are also unable to assist the Court.</b></p><p><b>ORDER</b></p><p><b>a. The writ petition is allowed.</b></p><p><b>b. Annexure-B – notice, which has been issued by the Estate Officer, who is not authorized to exercise powers under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, is quashed.</b></p><p><b>c. Consequently, the impugned order at Annexure-A dated 28.04.2015 passed by the 2nd respondent is quashed.</b></p><p><b>e. The Principal Secretary, Revenue Department is requested to organize training of the Officers  exercising quasi-judicial powers to appreciate the applicable law, in order to enable them in discharging their responsibilities as quasi judicial officer in a proper and required manner. Unless such training  is  imparted, it would be difficult for them to  discharge their obligations, so as to meet the requirements of the applicable law and should stand the scrutiny of  Courts.</b></p><p><b>f. The Principal Secretary, Panchayat Raj and Rural Development is also directed to web host the address book of all Zilla Panchayats, Town Panchayats and Gram Panchayats with the e-mail ID and mobile number of the person in-charge of litigation in the respective Zilla Panchayats, Town Panchayats  or Gram Panchayats. This would enable this Court and other  Courts  to  effect  service  of  notice  on  the  said authority so that the said authority does not go unrepresented.</b></p>', '6934d3027e04294e05384c7689dbad9e.jpeg', '3588f000fb58682c45b8a449d59445f1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-07', 1, '', '', '2022-06-07 18:34:33', '2022-06-07 10:22:54');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1793, 'Lacv98sPNW1NwgrfamxA2tPqk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Claimant who was compensated by his own insurer is not entitled to get compensation again for the very same damages from the owner or insurer of the offending vehicle. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Antony Thomas Vs V.K. Suresh and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>MACA 848 of 2012 decided on 3 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A. Badharudeen.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The appellant, who sustained damages to his <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">car bearing registration No.KL-7/AK-5683 and personal\r\ninjuries in a motor accident occurred on 02.04.2005 at about\r\n1.30 p.m. moved two separate applications before the\r\nTribunal claiming compensation for the same.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. The specific case put up by the appellant\r\nbefore the Tribunal in this matter is that, while he was\r\ndriving his car bearing registration No.KL-7/AK-5683 through\r\nAluva-Munnar road, a mini lorry driven by the fourth\r\nrespondent in a rash and negligent manner hit against the\r\ncar driven by the appellant and in consequence thereof, the\r\nappellant sustained personal injuries and also sustained\r\ndamages to his car. The specific contention put up by the\r\nappellant before the Tribunal is that since he had obtained\r\nRs.3,36,651/- from the second respondent, the insurer of his\r\nown car, he is entitled to get the balance amount of\r\nRs.1,84,015/- from the third respondent who is the insurer of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the mini lorry, since he sustained a total loss of\r\nRs.5,20,666/-.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>5. The third respondent resisted the contention\r\non the ground that the appellant could not claim the amount\r\nalready received again and therefore, the claim could not be\r\nadjudged in favour of the appellant.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. It is argued by the learned counsel for the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appellant that since the appellant sustained a total loss of\r\nRs.5,20,666/-, adjusting the amount already received, the\r\nremaining amount of Rs.1,84,015/- is liable to be paid by the\r\nthird respondent, who is the insurer of the mini lorry involved\r\nin the accident, since the driver of the said lorry contributed\r\nthe accident. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Negativing this contention, the learned\r\ncounsel for the insurance company, the third respondent\r\nwould submit that, acting on the policy issued in relation to\r\nthe vehicle owned by the appellant, covering total damages,\r\nthe second respondent assessed the total damages to the\r\nvehicle to the tune of Rs.3,36,651/- after reducing the\r\ndepreciation value on the basis of valuators report.\r\nTherefore, the appellant is not entitled to get any amount as\r\nclaimed and the verdict of the Tribunal in this regard is\r\nperfectly in order and the same does not require any <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">interference.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>10. While addressing the point in dispute, the\r\nrelevant question is; can a claimant who was compensated\r\nby his own insurer is entitled to get any compensation again\r\nfor the very same damages from the owner or insurer of the\r\noffending vehicle?\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. It is relevant to note that while dismissing the\r\nclaim put up by the appellant, the learned Tribunal relied on\r\ntwo decisions of this Court. The first decision is one reported\r\nin [2005(2) KLT 259], Jacob Joseph v. Devassy and\r\nanother decision reported in [2009 ACJ 326], National\r\nInsurance Company Ltd. v. M.S.Mohan and Others.\r\n12. In Jacob Joseph\'s case, this Court\r\nconsidered the claim put up by the claimant, when the\r\nelephant belonged to the claimant sustained injuries. In the\r\nsaid case, applying the principles of subrogation, this Court </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">negatived the contention of the appellant. In this\r\nconnection, it is relevant to refer five Bench decision of the\r\nApex Court reported in [2002 KHC 127], New India\r\nAssurance Company Ltd. v. Jaya. In the said decision,\r\nthe larger Bench considered the liability of the insurance\r\ncompany in tune with Section 95(2) of the Motor Vehicles\r\nAct, 1939 and it was held that liability of the insurance\r\ncompany is limited and lesser than the statutory liability\r\nunder Section 95(2) and in case, an insurance policy will not\r\ntake any higher liability by accepting a higher premium, such\r\nhigher liability cannot be given.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. In this case, the crucial question of law\r\ninvolved is nothing but law of subrogation. Before discussing\r\nthe law of subrogation, it is an undisputed fact that though\r\nthe appellant claimed Rs.5,20,666/- as total compensation\r\nfor the damages for his car, his own insurer, acting on the\r\npolicy issued to cover the damages of the car, assessed the\r\nsame at Rs.3,36,651/- and the said amount was given to the\r\nappellant. As per Ext.X1 survey report obtained in the\r\npresent case, the total amount assessed by the valuator is\r\nRs.2,99,800/-, which is less than the amount already\r\nobtained by the appellant from his own insurer. Thus, it\r\nappears that the second respondent assessed the total\r\namount entitled by the appellant at Rs.3,36,651/- and as per\r\nExt.X1 report, the assessment was Rs.2,99,800/- which is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">less than the amount assessed by the insurer of the\r\nappellant.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. In fact, the principle of subrogation is\r\nincorporated under Section 69 of the Indian Contract Act, 1972\r\nand it provides that any person who is interested in the\r\npayment of money which another is bound by law to pay, and\r\nwho therefore pays it, is entitled to be reimbursed by the other\r\nperson. Section 92 of the Transfer of Property Act also\r\nrecognises the principle of subrogation. In the constitution<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Bench decision reported in [(2010) 4 SCC 114], Economic\r\nTransport Organisation v. Charan Spinning Mills (P) Ltd.\r\nand another, the Apex Court held that law of insurance\r\nrecognises an equitable corollary of the principle of indemnity\r\nthat when the insurer had indemnified the assured/insured, the\r\nrights and remedies of the assured/insured against the wrong\r\ndoer stand transferred to and vested in the insurer. To put it\r\notherwise, when the insurer under a policy discharged liability\r\nin terms of the contract of indemnity, the insurer who issued\r\npolicy is subrogated in the place of the insured or stepped into\r\nthe shoes of the insured and therefore, the insured cannot\r\nclaim the said amount again from another insurer.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>19. In the case on hand, the appellant already\r\nreceived compensation entitled on account of damages\r\nsustained to his car and therefore, the appellant could not\r\nclaim anything more than the amount what has been\r\nassessed and given by his own insurer. </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20. In view of the matter, the third respondent\r\nsubrogated into the shoes of the appellant and therefore, the\r\namount, if any, paid by the third respondent can be realised\r\nby the second respondent from the third respondent applying\r\nthe principle of subrogation and therefore, the appellant is\r\nnot entitled to get anything as claimed.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>21. In view of the above discussion, I have no\r\nhesitation to hold that the Tribunal rightly dismissed the\r\nclaim put up by the petitioner and the same is liable to be\r\nconfirmed.\r\nIn the result, the appeal fails and it is accordingly\r\ndismissed. </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Considering the facts and circumstances of the\r\ncase, both parties are directed to suffer their respective\r\ncosts.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '368c9eb6adbae54c2925b6c93b065ad4.jpeg', 'b5bb3d1121ccf6e9b2443eed0f3fe385.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-08', 1, '', '', '2022-06-07 19:23:17', '2022-06-08 13:56:34'),
(1813, 'Tr3iwHvU5Rb67GSmx0jC05h0I', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'The judgment of the first appellate court must reflect conscious application of mind recording the court’s findings, supported by reasons. Supreme Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Somakka (Dead) through LRS Vs K.P. Basavaraj (Dead) by LRS.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1117 of 2009 decided on 13 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Abdul Nazeer and Justice Vikram Nath.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. The appellant is the own sister of the sole respondent. Their father Puttanna had inherited certain properties from his father which were ancestral properties and are described as item nos. 1 and 2 of Schedule ‘A’  to the plaint, whereas property described at item no. 3 was alleged to be self­acquired property of Puttanna on the basis of occupancy rights. In so far as the property described at Schedule ‘B’, it belonged to the respondent which the appellant claimed to have purchased. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The appellant is the plaintiff in OS No. 2506 of 1991 instituted in the Court of the City Civil Judge, Bangalore, wherein the sole defendant is the respondent herein (brother of the appellant). Primarily, two reliefs were claimed in the said suit; firstly a partition and separate possession of ¼ (one fourth) share in properties described at item nos. 1 and 2 and ½(one half) share in the property described in item no. 3 of Schedule ‘A’ to the plaint; the second relief prayed was for a decree of specific performance of the agreement and sale dated 25.05.1981  with respect to the property described in Schedule ‘B’ to the plaint. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The claim set up by the appellant was that properties  described  at  item  nos.1  and  2  in Schedule ‘A’   were ancestral properties and, therefore, upon the death of her father in 1974, she would be entitled to ¼ share and further that the property described as item no.3  of Schedule ‘A’ was exclusively occupied by her father who had applied before the revenue authorities for being declared as an occupant and the same was pending at the time when her father died. Later on, it was continued to be prosecuted by the respondent and it was ordered that his name be recorded as occupant as such she would be entitled to ½ share.  With respect to the relief of specific performance of contract, it was alleged that she had paid a sum of Rs. 12,000/­ for purchasing 1 acre and 10 guntas in Survey no. 60 situated on Dyavasandra Village, Krishnarajapura Hobli, Bangalore South Taluk and for which an agreement to sell dated   25.05.1981   was executed.  The respondent had placed the appellant in possession of the said property. Later on, he declined to execute the sale deed despite appellant being always ready and willing to perform her part of the obligation to the agreement. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. The respondent contested the suit, filed written statement and denied averments made in the plaint. According to the respondent his father had already spent substantial amount on the marriage of the appellant. She was also given jewellery worth Rs. 50,000/­ and also an additional sum of Rs. 8,000/­for establishing a stationary­ cum­c offee shop. Other averments made in the written statement were to the effect that the appellant had access to the savings of her father and that she had secretly utilized the savings of both her and her father’s in purchasing property in the name of her husband. In paragraph 15 of the written statement, further details have been mentioned with regard  to the property acquired by the appellant and also which is received from their father.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The respondent, however, admitted that the properties described at item nos. 1 and 2 of the Schedule ‘A’ were ancestral properties.  It is, further, stated that the property described at item no. 3 of Schedule ‘A’  of the plaint was jointly cultivated by him and his father and after the death of his father, he was exclusively cultivating the same and upon the coming of the Mysore (Religious and Charitable) Inams Abolition Act 19551 , he became entitled to occupancy rights and accordingly applied for it, which was granted. Further, the respondent denied the alleged agreement to sell and stated that it was a false and fabricated document and he never received any consideration amount as alleged by the appellant. On such pleadings, it was prayed that the suit be dismissed with exemplary costs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. Heard learned counsel for the parties and perused the material on record. It may be noticed that this Court, while issuing notice vide Order dated 30.07.2007 had confined it to the question of shares of the parties in Item No.3 of Schedule ‘A’ of the property. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.  The only issue thus which survives for our consideration and adjudication is whether the appellant is entitled to ½ share or ¼ share in the property described at item no. 3 of Schedule ‘A’ property over which occupancy rights under the Inam Act were claimed.  Remaining claim of the appellant regarding ½ share in item nos. 1 and 2 of  Schedule   ‘A’  and Schedule ‘B’ properties stand closed at the stage of first appeal before the High Court.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. While dealing with issue no.1, the Trial Court records that, although, the defendant respondent denied the right, title and interest of the appellant in item nos.1 and 2 of Schedule ‘A’ properties, but having admitted that his father Puttanna succeeded to item nos.1 and 2, and that they were ancestral properties, as such, the appellant would be entitled to  ¼ (one fourth) share in item nos.1 and 2 of Schedule   ‘A’ properties. This finding has been confirmed by the High Court also in appeal and as there is no further appeal by the respondent with respect to item nos.1 and 2 of Schedule ‘A’ properties, the relief granted to the appellant to that extent stands finalized and closed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. Now coming to item no. 3 of Schedule ‘A’ property, it was a Devadaya Inamathi Land. During life time of Puttanna, father of the parties, he was cultivating the same on the basis of Panchashala Gutta and on the coming of the Inam Act, Puttanna filed an application for grant of occupancy rights before the Special Deputy Commissioner, Inam Abolition, Bangalore. Later on, the said matter came up before the Land Tribunal, Bangalore and during pendency of the said application, Puttanna died. Thereafter, the respondent came on record and he carried forward the application, filed by Puttanna for occupancy rights, which ultimately came to be granted in his favour. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. The respondent had set up a specific claim that he was cultivating item no.3 of the Schedule ‘A’ property personally and he alone had made the application for occupancy rights and the same being granted in his name, it became his self­acquired property.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. The Trial Court further considered Exts. P­2 to P­36, which were receipts of payment of Panchashala Gutta and the revenue by Puttanna  i.e. to say that Puttanna was throughout cultivating item no.3 of Schedule ‘A’ property on the basis of Panchashala Gutta. Ext.   P­37   was  also relied upon by the Trial Court, which was a document of the RTC extract to show that the said land was recorded as Inam land  and  Puttanna was cultivating the same. Exts. P­2 to P­36 reveal that Puttanna had been cultivating the said land since 1955 continuously. Exts. P­38 and P­39 were copies of the applications, filed by late Puttanna before the Special Deputy Commissioner, Inam Abolition, Bangalore. Exts. P­40 and P­41 were copies of the notices issued by the Revenue Authorities calling upon him to  appear for consideration of his  applications for grant of occupancy rights. Further, Exts. P­42 and P­43 were copies of the statements given by one G.K. Gurunath and the respondent before the Land Tribunal, Bangalore. Ext. P­44 is the statement of one Narasimhaiah and Ext. P­45 is the order of   the   Land   Tribunal,  Bangalore granting occupancy rights in favour of the respondent.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22.   On the above findings the Trial Court decreed the claim of the appellant to be having half share in item no.3 of Schedule ‘A’ property vide judgment dated 02.09.2003.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26. Section 96 of the CPC provides for filing an appeal from original decree. Further Order XLI Rule 31 of the CPC provides for the contents of the judgment of the First Appellate Court. According to it, the judgement of the Appellate Court shall be in writing and would include the points for determination, the decision thereon, the reasons for the decision and where the decree is reversed or varied, the relief to which the appellant is entitled.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>27. It has been a matter of debate in a catena of decisions as to what would be the scope, power and duty of the First Appellate Court in deciding an appeal under Section 96 CPC read with Order XLI Rule 31 CPC.  We briefly deal with the law on the point</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>30. From the above settled legal principles on the duty, scope and powers of the First Appellate Court, we are of the firm view and fully convinced that the High Court committed a serious error in neither forming the points for determination nor considering the evidence on record, in particular which had been relied upon by the Trial Court.  The impugned judgment of the High Court is thus unsustainable in law and liable to be set aside. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>31. The next question which arises is that where the judgment of the Appellate Court is being set aside on the ground of non consideration  of the evidence on record, the matter would normally be required to be remanded to the First Appellate Court, whether in the facts and  circumstances this case requires a remand. In the facts and circumstances of the present case, we find that the suit was instituted in the year 1991, more than three decades ago; the evidence discussed by the Trial Court is neither disputed nor demolished by the learned  Counsel for the respondent. As such, we do not find any good reason to remand the matter to the High Court. We are of the view that in order to put a quietus to the litigation and relieve the parties from any further harassment, we set aside the judgment of the High Court and confirm the judgment and decree of the Trial Court to the extent it relates to item no. 3 of Schedule ‘A’ property described in the plaint, i.e. to say that the appellant and the  respondent would be entitled to ½ share each in the said property. The Trial Court shall accordingly proceed to draw out the proceedings for final decree of partition. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>32. The appeal is accordingly allowed. There shall be no order as to costs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'cadbaaf9bee0ad5a5af67dc03c5852ca.jpeg', '95b82e363512dacf60043cdc8791eed6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-16', 1, '', '', '2022-06-14 15:34:09', '2022-06-16 10:25:54'),
(1818, 'kzORIS7VKuhVyptjD9JpUALkR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Author of a tender document is the best judge of its requirements and that constitutional Courts must defer to this understanding. Delhi High Court. ', '<p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">M/S S H Khan and Co and other Vs Government of NCT of Delhi and another.</b><br></p><p><b>W.P (C) 9457 of 2022 decided on 10 June 2022.</b></p><p><b>Justice Manoj Kumar Ohri and Justice Poonam A. Bamba.</b></p><p><b>1. By way of the present petitions filed under Article 226 of the Constitution of India, the petitioners have sought quashing/stay of the Notice Inviting Tenders (hereinafter, referred to as the „NITs?) to them for operation, management and maintenance of Jan Suvidha Complexes (hereinafter, referred to as the „JSCs?) for two years.</b></p><p><b>2. The facts, as emanate from the pleadings, are that the petitioners-M/s S.H. Khan & Co.& Ors. in W.P.(C) 9454/2022 are Societies registered under the Societies Registration Act, 1860 and the petitioner-ALERT DÉCOR in W.P.(C) 9457/2022 is a Firm engaged in providing security and sanitisation services including in the NCT of Delhi. The petitioners claim to have earlier been awarded various tenders/work orders for Operation, Management and Maintenance of JSCs. The eligibility criteria mentioned in the aforesaid NITs dated 26.05.2022 and 27.05.2022 are on the same lines.</b></p><p><b>3. Mr. Sanjeev Anand, learned Senior Counsel appearing for the petitioners in W.P.(C) 9454/2022, has contended that the eligibility and turnover criteria as enumerated in the aforesaid NITs dated 26.05.2022 and 27.05.2022 are arbitrary, irrational and violative of Articles 12, 14, 19 and 21 of the Constitution of India. It is submitted that the respondent(s) has arbitrarily decided to not permit consortium/joint venture of agencies to participate in the tenders, which has narrowed down the competition as well as resulted in elimination of small players like the petitioners to the benefit of the bigger players, resulting into monopoly upon a limited class of persons. It is further submitted that vide NITs dated 25.06.2018 and 15.02.2021 issued earlier for work of similar nature, consortium(s) of not more than 3 and 5 partners/agencies/NGOs respectively were allowed to participate.</b></p><p><b>Learned Senior Counsel has assailed the eligibility criteria requiring bidders’ average annual financial turnover of works completed in last 3 consecutive financial years to be atleast 50% of the estimated cost of work, on the ground that the previous NIT dated 15.02.2021 required the average annual financial turnover of works completed in any 3 years during the last 5 consecutive financial years to be atleast 30% of estimated cost.</b></p><p><b>He has also referred to the corrigendum dated 05.03.2021 issued in relation to NIT dated 15.02.2021, whereby the eligibility criteria were amended. It is submitted that Clause 8 of the same mentioned that - “assessment of experience in respect of numbers of WC seats maintained in the same proportion as in respect of turnover of work is permitted in the same proportion of turnover of the WC seats maintained, mentioned in the tender”. Learned Senior Counsel has contended that the eligibility in relation to financial criteria should be based on the number of WC seats as provided in the earlier tender. Lastly, it is submitted that estimated total cost of the tender ought to have been computed for 1 year and not for 2 years, as the same enhanced the turnover, solvency and eligibility criteria. 4. Learned Senior Counsel appearing for the petitioner in W.P.(C) 9457/2022 has adopted the submissions made on behalf of the petitioners in W.P.(C) 9454/2022. Additionally, he has contended that the condition of annual financial turnover being 50% of the estimated cost is also in violation of Office Memorandum No.12-02-1-CTE-6 dated 17.12.2002 issued by the Central Vigilance Commission, Govt. of India.</b></p><p><b>7. In the present cases, the petitioners have invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India seeking review of the conditions of a tender floated by the DUSIB, wherein the financial eligibility criteria are stated to have been linked to the estimated cost of the work. The petitioners’ grievance is that the eligibility criteria imposed by the tender, unlike previous tenders issued by the DUSIB, have the effect of restraining consortiums/joint venture of agencies from participating and increasing the estimated cost of work, thereby creating a monopoly of limited class of persons and ousting small players from competition.</b></p><p><b>9. Thus, the principles governing the exercise of judicial review in tender/contractual matters are well-settled. A perusal of the judicial dicta on the subject would show that Courts in seisin of said matters are ordained to determine the following issues/questions:-</b></p><p><b>i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or Whether the process adopted or decision made is so arbitrary and irrational that the Court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”;</b></p><p><b>ii) Whether public interest is affected If the answers are in the negative, there should be no interference under Article 226 of the Constitution of India. Further, a constitutional Court in tender/contractual matters shall be concerned only with lawfulness of a decision, and not its soundness [Refer: Jagdish Mandal (Supra), Maa Binda Express Carrier (Supra) and Bharat Coking Coal Ltd. (Supra)].</b></p><p><b>16. Coming back to the facts of the present case, it is noted that initially, DUSIB had issued NIT dated 25.06.2018 for operation, management and maintenance services of JSCs at specified locations, with estimated cost of Rs.15,11,14,920/-. In the said tender, consortiums were allowed to participate, with cap being set at a maximum of three partners. Thereafter, DUSIB came out with NIT dated 13.02.2021 for like services of JSCs at specified locations, with estimated cost of Rs.3,11,82,216/-. Again, consortiums were allowed to participate, with the cap being set at a maximum of 5 partners. The petitioners were awarded various tenders by DUSIB, albeit for reduced time period.</b></p><p><b>In the year 2022, DUSIB issued the impugned NITs for services of JSCs, as mentioned above, at specified locations, with estimated costs of Rs.68,32,21,584 and Rs.56,14,21,272/-. This time, consortiums/joint venture of agencies were not permitted to participate and the average annual financial turnover criteria was fixed at 50% of the estimated cost of work.</b></p><p><b>17. The petitioners’ case is that as opposed to earlier tenders, DUSIB has imposed stricter eligibility conditions in the present tender, wherein–</b></p><p><b>(i) consortiums/joint venture of agencies have been restrained from participating,</b></p><p><b>(ii) the turnover criteria have been increased from 30% to 50% of estimated cost of work,</b></p><p><b>(iii) the eligibility criteria have not been linked to number of WC seats, and (iv) the estimated cost has been calculated for 2 years, instead of 1 year. Thus, the impugned NITs are liable to be quashed for imposing eligibility criteria that are arbitrary, unreasonable and violative of inter-alia Article 14 of the Constitution of India.</b></p><p><b>18. On the other hand, the case of DUSIB is that –</b></p><p><b>(i) changes have been made in the pre-conditions and qualifications of the present tender based on experience with contractors in earlier tenders to ensure that the proposed contractor has requisite capacity and resources,</b></p><p><b>(ii) fixation of value of tender is within the realm of the executive and tender conditions are not open to judicial review, unless the same are found to be perverse, actuated by mala fide and/or adverse to public interest, and</b></p><p><b>(iii) conditions of a tender, even if harsh, apply to everyone and cannot be assailed even if they cause prejudice to a party, much less to secure private interest.</b></p><p><b>19. In view of the aforementioned judicial decisions, with which we completely concur, it is well-settled that Courts are not meant to vet tender conditions and rewrite the same based on their own understanding, unless the conditions are manifestly arbitrary or smack of mala fide. Before interfering with the impugned NITs under Article 226 of the Constitution of India, two questions are required to be determined: first, whether the action of DUSIB in imposing the impugned conditions was arbitrary or actuated by mala fide, and second, whether public interest is affected by said action?</b></p><p><b>21. From the material placed on record and the submissions made on behalf of the parties, it is apparent that the work under the impugned tenders has been consolidated under 2 NITs as opposed to24 NITs issued for earlier projects. The scope of the work has become bigger as well as specific; for instance, earlier, JSCs having 10 or more WCs were to be cleaned with mechanical means, however, the same are now proposed to be cleaned by use of equipment of specific type and make. In the experience of the respondent(s), it would require a bigger player with adequate financial capacity and resources to efficiently execute the project. It has been claimed that it would also be more convenient for the respondent(s) to deal with a single agency rather than a consortium of multiple members.</b></p><p><b>22. Notably, implicit in the petitioners’ challenge is an admission that they do/will not meet the impugned criteria. There is no allegation in the present case that the impugned conditions have been designed to favour a particular entity and/or to exclude the petitioners from the fray. In fact, it is an admitted position that the petitioners have earlier been awarded tenders/work orders by DUSIB.</b></p><p><b>23. The petitioners have placed reliance on Office Memorandum No.12-02-1- CTE-6 dated 17.12.2002 issued by the CVC to argue that impugned tender conditions are violative of Clause 5(A)(i)of the O.M. as they exceed the condition of average annual financial turnover being „at least 30% of the estimated cost?. Suffice it to note, this challenge is without any substance since the O.M. lays down only lays down criteria of 30% as a minimum threshold. Even otherwise, from clause 6 of the O.M., it is discernible that the conditions stipulated therein were intended to serve only as a guidance for fixing prequalification criteria.</b></p><p><b>24. Based on the above, we are of the prima facie opinion that the respondent has good reason for exclusion of consortiums/joint venture of agencies from participation and the impugned conditions in the NITs dated 26.05.2022 and 27.05.2022 are neither arbitrary nor actuated by mala fide. Besides, in view of the decisions cited hereinabove, it is the prerogative of the respondent(s) to design tender conditions as per the requirements. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Thus, the first criteria for interfering with the impugned NITs under writ jurisdiction, i.e. existence of mala fide or arbitrariness on part of the respondent(s), is decided against the petitioners.</b></p><p><b>25. So far as the second criteria for interference with impugned NITs is concerned, it is observed that the tenders in question are for operation, management and maintenance of JSCs, i.e. common toilet facilities, in JJ clusters/slum bastis in Delhi. The project by its nature is for the welfare of the people. </b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">As noted earlier, the scope of work has increased and the respondent(s) have stated that it would be more efficient for the authorities to collaborate with single players/agencies instead of multiple members in a consortium/joint venture. Needless to state, the petitioners cannot claim as a matter of right that they should be allowed to participate in the tender process as a consortium/joint venture of agencies.</b></p><p><b>26. Considering that the work under the NITs requires certain level of financial and other resources in the opinion of the DUSIB, which assessment being a policy decision is not to be interfered by this Court under writ jurisdiction unless found adverse to public interest, and finding nothing on record to show that the impugned conditions are detrimental to public interest, the second issue is also decided against the petitioners.</b></p><p><b>27. For the reasons stated above, the petitions are dismissed. </b></p>', '2673923797e28ab9eb3571d114dfc9c3.jpg', 'f16e7dfe28df326c2c8b8cacbcd61ddc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-16', 1, '', '', '2022-06-15 03:49:27', '2022-06-16 08:27:53'),
(1819, 'Ew7DyynUnNj1LxFJDK5KCw2OH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'No arrest or police action against accused in 498A, IPC cases for the “Cooling-Period” of two months from the lodging of the FIR or the complaint. Allahabad High Court. ', '<p><b>Mukesh Bansal vs State of UP and another <br>Criminal Revision No. 1126 of 2022 decided on 13 June 2022<br>Justice Rahul Chaturvedi</b></p><p><b>[35] Thus, It is directed that :-\r\n<br>(i) No arrest or police action to nab the named accused persons shall be made after lodging\r\nof the FIR or complaints without concluding the “Cooling-Period” which is two months\r\nfrom the lodging of the FIR or the complaint. During this “Cooling-Period”, the matter\r\nwould be immediately referred to Family Welfare Committe(hereinafter referred to as\r\nFWC) in the each district.\r\n<br>(ii) Only those cases which would be transmitted to FWC in which Section 498-A IPC along\r\nwith, no injury 307 and other sections of the IPC in which the imprisonment is less than 10 years.\r\n<br>(iii) After lodging of the complaint or the FIR, no action should take place without concluding the\r\n“Cooling-Period” of two months. During this “Cooling-Period”, the matter may be referred to\r\nFamily Welfare Committee in each districts.\r\n<br>(iv) Every district shall have at least one or more FWC (depending upon the geographical size\r\nand population of that district constituted under the District Legal Aid Services Authority)\r\ncomprising of at least THREE MEMBERS. Its constitution and function shall be reviewed\r\n periodically by the District & Sessions Judge/Principal Judge, Family Court of that District, who\r\nshall be the Chairperson or Co-chairperson of that district at Legal Service Authority.<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(v) The said FWC shall comprise of the following members :-\r\n(a) a young mediator from the Mediation Centre of the district or young advocate having\r\nthe practices up to five years or senior most student of Vth year, Government Law\r\nCollege or the State University or N.L.Us. having good academic track record and who is\r\npublic spirited young man, OR;\r\n(b) well acclaimed and recognized social worker of that district having clean antecedant,\r\nOR;\r\n(c) retired judicial officers residing in or nearby district, who can devote time for the\r\nobject of the proceeding OR;\r\n(d) educated wives of senior judicial or administrative officers of the district.<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(vi) The member of the FWC shall never be called as a witness.<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(vii) Every complaint or application under Section 498A IPC and other allied sections mentioned\r\nabove, be immediately referred to Family Welfare Committee by the concerned Magistrate. After\r\nreceiving the said complaint or FIR, the Committee shall summon the contesting parties along\r\nwith their four senior elderly persons to have personal interaction and would try to settle down the\r\nissue/misgivings between them within a period of two months from its lodging.\r\nThe contesting parties are obliged to appear before the Committee with their four\r\nelderly persons (maximum) to have a serious deliberation between them with the aid of members\r\nof the Committee.\r\n<br>(viii) The Committee after having proper deliberations, would prepare a vivid report and would\r\nrefer to the concerned Magistrate/police authorties to whom such complaints are being lodged\r\nafter expiry of two months by inserting all factual aspects and their opinion in the matter.\r\n<br>(ix) Continue deliberation before the Committee, the police officers shall themselves to avoid any\r\narrest or any coercive action pursuant to the applications or complaint against the named accused\r\npersons. However, the Investigating Officer shall continue to have a peripheral investigation into\r\nthe matter namely preparing a medical report, injury report, the statements of witnesses.\r\n<br>(x) The said report given by the Committee shall be under the consideration of I.O. or the\r\nMagistrate on its own merit and thereafter suitable action should be taken by them as per the\r\nprovision of Code of Criminal Procedure after expiry of the “Cooling-Period” of two months.\r\n<br>(xi) Legal Services Aid Committee shall impart such basic training as may be considered\r\nnecessary to the members of Family Welfare Committee from time to time(not more than one week).\r\n<br>(xii) Since, this is noble work to cure abrasions in the society where tempos of the contesting\r\nparties are very high that they would melow down the heat between them and try to resolve the\r\nmisgivings and misunderstanding between them. Since, this is a job for public at large, social\r\nwork, they are acting on a pro bono basis or basic minimum honrarium as fixed by the District &\r\nSessions Judge of every district. <br>(xiii) The investigation of such FIRs or complaint containing Section 498A IPC and other allied\r\nsections as mentioned above, shall be investigated by dynamic Investigating Officers whose\r\nintegrity is certified after specialized training not less than one week to handle and investigate\r\nsuch matrimonal cases with utmost sincerity and transparancy.\r\n<br>(xiv) When settlement is reached between the parties, it would be open for the District & Sessions\r\nJudge and other senior judicial officers nominated by him in the district to dispose of the\r\nproceedings including closing of the criminal case.\r\n At the cost of repetition, it is made clear that after lodging of the F.I.R. or the\r\ncomplaint case without exhausting the “Cooling-Period” of two months, no arrest or\r\nany coercive action shall be taken against the husband or his family members in order to\r\nderail the proceedings before the Family Welfare Committee.</span></b></p>', '1f7d9cbf9888acaad1760fe2d303bdf0.png', 'e296e069f0e5c1c162ccbe1cef729321.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-15', 1, '', '', '2022-06-15 04:14:32', '2022-06-15 12:26:36');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1811, 'XG50sf1GzdmcSl3YRXz1GA3zD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Love should be from heart to heart and not mere external attraction\'\' - Youngsters should act responsibly while choosing life-partners against parents’ will.  Karnataka High Court implores. ', '<p><b>T.L. Nagaraju vs The Inspector of Police, K.M. Doddi Police and another<br>Writ Petition Habeus Corpus 42 of 2022 decided on 25 May 2022</b></p><p><b>This writ petition habeas corpus is filed by one T.L.Nagaraju, who is the father of the detenue Ms. T.N.Nisarga praying to direct the respondents to produce Ms. Nisarga before this Court and to handover the custody to him.</b></p><p><b>3. When the matter is listed today for orders, this Court was about to direct the learned Government Pleader to take notice for the State/respondent No.1, by then, the petitioner/T.L.Nagaraju, who is present before the Court during the proceedings gave information about&nbsp; his daughter to the learned senior counsel, Sri Satish M.Doddamani, who on instructions submitted that the petitioner’s daughter is within the Court premises.</b></p><p><b>7. This Court noticed the pain of the parents (petitioner and his wife), who brought up Nisarga and educated her upto II year Engineering with all struggles in their life, but the fact remains that the alleged detenue T.N.Nisarga is aged about 19 years and that she is major and she can decide her life with what she expressed in the open Court and she even declined to interact with the parents or to join the parents. She assured before the&nbsp; Court that she is confident to live happily with respondent No.2/her husband till her life. On query made with respondent No.2, Nikhil @ Abhi who is husband of T.N.Nisarga, he also assured the Court that he will take all the precautions and care to protect his wife without single drop of tear in her eyes and will lead a happy married life till their life time. He also assured the Court that his wife Nisarga will continue her further studies and complete the engineering degree.</b></p><p><b>8. It is also relevant to state that the parents also should understand that their children are supreme asset of the nation. A proper education encompassing skill development, recreation and cultural activity has a positive impact on the child. “Our history reveals that there are parents&nbsp; who&nbsp; sacrificed their lives&nbsp; to the&nbsp; children and&nbsp; the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">children who sacrificed their life to the parents.”&nbsp; It is only&nbsp; a mutual love and affection between the two i.e., parents and children. If there is love and affection between two, there cannot be any rift in the family and there would be&nbsp; no question of either children going against the parents or parents going against the children to the Court to protect their rights. The parents should create a good atmosphere in&nbsp; the&nbsp; family&nbsp; by&nbsp; their&nbsp; love&nbsp; and&nbsp; affection&nbsp; to&nbsp; regain&nbsp; the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">confidence of the children. The children should also understand the fact that without their parents, they would not have been on the earth and would not have enjoyed&nbsp; the educational prospects including job, wealth and other luxuries and it is only the parents’ contribution. When Nisarga completed her teenage&nbsp; i.e., from the&nbsp; age&nbsp; of 13 to</b></p><p><b>19 and she attained majority, she is at liberty to decide&nbsp; &nbsp;her future and choose her partner and at the same time, she should not be the reason for pain and agony suffered by her parents. Instead of eloping with respondent No.2, in all fairness she should have thought of her studies and informed the parents about her love with respondent No.2 and ought to have tried to convince her parents with&nbsp; regard to her marriage with respondent No.2. The peculiar facts and circumstances of the present case clearly depicts that “love is blind and more powerful weapon than&nbsp; the love&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and affection of the parents, family members and the society at large.”</b></p><p><b>9. The fact remains that, now she is married and is residing along with respondent No.2. “It is high time for the children to know that the life consists of reaction,&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">resound&nbsp; and&nbsp; reflection. What they are doing to their parents&nbsp; today,&nbsp; would get&nbsp; back exactly tomorrow. What&nbsp; is&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the use of their education, power-position and wealth,&nbsp; when it does not help them to change their destiny. When&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the bad thoughts enter their mind; their education,&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">intelligence, power and wealth become futile and&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">meaningless.”</b></p><p><b>10.<span style=\"white-space:pre\">	</span>“There is no greater God than parents. There&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is no greater Dharma than compassion, there is no enemy greater than anger, there is no wealth greater than good&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reputation, bad reputation is death itself. Even according&nbsp; &nbsp;to Manusmruthi, no person can repay his parents even in&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">100 years for all the troubles that they go through to give birth to him/her and raise him/her to&nbsp; adulthood.&nbsp; Therefore, always&nbsp; try to do whatever pleases your&nbsp; parents&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and your teacher, because only then does any religious worship done by you will bear some fruit.</b></p><p><b>11.<span style=\"white-space:pre\">	</span>It is well settled that “ageing has become a&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">major social challenge” and there is a need to give more attention to the care and protection for the elder persons. “Old age is incurable, increase of disease, you do not heal old age, you protect it, you promote&nbsp; it, you&nbsp; extend it.”&nbsp; The fact remains now that Nisarga attained majority and she has right to choose her partner and to lead her life.&nbsp; The Court cannot intervene with her rights. “The right to marry a person is one’s choice is integral part of Article 21&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the Constitution. The Constitution guarantees the right to life.<span style=\"white-space:pre\">	</span>This right cannot be taken away except through a&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">law which is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the Constitution&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">guarantees as a fundamental right is the ability of each individual&nbsp; &nbsp;to&nbsp; &nbsp;take&nbsp; &nbsp;decisions&nbsp; on&nbsp; matters&nbsp; central&nbsp; &nbsp;to the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty.</b></p><p><b>The Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue&nbsp; a way of life or faith to which she or&nbsp; he seeks to adhere. “Matters of dress and of food, of ideas and&nbsp; ideologies,&nbsp; of&nbsp; love&nbsp; and&nbsp; partnership&nbsp; are&nbsp; within&nbsp; the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">central aspects of identity.” The law may regulate (subject to constitutional compliance) the conditions of a valid marriage, as it may regulate the situations in which a marital tie can be ended or annulled. These remedies are available to parties to a marriage for it is they who decide best on whether they should accept each other into a marital tie or continue in that relationship. Society has no role to play in determining their choice of partners&nbsp; including the parents. It is well settled that the autonomy&nbsp; of the individual is the ability to make decisions on vital matters of concern to life. The intersection between one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in&nbsp; what&nbsp; is right, and the freedom of self determination. The family, marriage,&nbsp; &nbsp;procreation&nbsp; &nbsp;and&nbsp; &nbsp;sexual&nbsp; &nbsp;orientation&nbsp; &nbsp;are&nbsp; all&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">integral to the dignity of the individual as in the present case.</b></p><p><b>Quoting the proverb “don’t base your relationship off&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the advice of people who don’t have to live with the results”, we propose to dispose of the writ petition with a fond hope that T.N.Nisarga and her husband Nikhil @ Abhi- respondent No.2 will lead a happy married life. The parents T.L.Nagaraju or his wife or his family members should not interfere with their personal life. Now T.N.Nisarga has gone away along with respondent No.2 and that she has become the wife of respondent No.2 with all confidence that he would take care of her in a proper manner till her life. ‘The woman born as a girl child to somebody and become the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">wife of somebody and therefore, it is the bounden duty of the&nbsp; &nbsp;husband&nbsp; to&nbsp; protect&nbsp; the&nbsp; &nbsp;wife&nbsp; &nbsp;and&nbsp; ensure&nbsp; &nbsp;her&nbsp; full&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">happiness&nbsp; till her lifetime.’<span style=\"white-space:pre\">	</span>‘The decision of the suitability of&nbsp; partners&nbsp; to&nbsp; a&nbsp; marital&nbsp; tie&nbsp; rests&nbsp; exclusively&nbsp; with&nbsp; the&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">individuals themselves. Neither the State or Society can intrude&nbsp; into&nbsp; that domain.<span style=\"white-space:pre\">	</span>The&nbsp; Courts,&nbsp; as&nbsp; upholders of&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Courts are duty bound not to swerve the path of upholding our pluralism and diversity as a Nation.’</b></p><p><b>12.<span style=\"white-space:pre\">	</span>The love should be from “heart to heart and&nbsp; not mere external attraction.” It is nature’s decision and&nbsp; not anybody’s and the parents should accept the nature’s decision and should not go against the nature. It is stated that they got married in the&nbsp; temple.&nbsp; In the interest of&nbsp; both the parties, it is directed that they should get their marriage registered before the concerned Sub-Registrar’s office within one month from the date of receipt of this order.</b></p><p><b>14.<span style=\"white-space:pre\">	</span>Having regard to the facts and circumstances of the case, this Court deems fit proper to allow daughter of the petitioner viz., T.N. Nisarga to live with the 2nd respondent. Since this Court is convinced&nbsp; that&nbsp; the daughter of the petitioner viz., T.N. Nisarga is not in illegal detention of anybody, the present writ petition (HC)&nbsp; is liable to be dismissed.</b></p><p><br></p>', 'adafa4eee0a659167588d7b593351a97.JPG', '724ed92c0e6cc9084e36fc2fb445d928.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-13', 1, '', '', '2022-06-13 23:45:02', '2022-06-13 23:45:02'),
(1812, 'xjXw1JDj0n4oSzunijtm9VDTb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Long course of living together between a male and female raises presumption of marriage and the children born in such relationship are legitimate children. Supreme Court reiterates.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kattukandi Edathil Krishnan and another Vs Kattukandi Edathil Valsan and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6406-6407 of 2010 decided on 13 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Abdul Nazeer and Justice Vikram Nath.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The appellants were the plaintiffs and Kattukandi Idathil Karunakaran was the defendant who died during the pendency of the suit.  Therefore, his legal representatives were brought on record as defendants no.2 to 5.  For the sake of convenience, the parties are referred  by their respective ranking before the Trial Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. In the suit, the plaintiffs contended that the suit property belonged to one Kattukandi Edathil Kanaran Vaidyar who had four sons viz. Damodaran, Achuthan, Sekharan and Narayanan. The first plaintiff is the son of Damodaran, born in the wedlock with one Chiruthakutty,  and the second plaintiff is the son of the first plaintiff. Achuthan had one son by name Karunakaran, the predecessor in­interest of the defendants. Sekharan was a bachelor and died without any issue.  Narayanan married one Lakshmi and they had a daughter by the name of Janaki, who also died as a spinster. The plaintiffs claimed half share in the suit schedule property.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"> 4. It is the case of the defendants that all the children except Achuthan died as bachelors and Karunakaran is the only son of Achuthan.    They denied the contention of the plaintiffs that Damodaran had married Chiruthakutty and that the first plaintiff was the son born to them in the said wedlock.  Their  further contention was that Chiruthakutty was not the wife of Damodaran. </font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Thus, it was pleaded that the plaintiffs are not entitled for any share in the suit schedule property. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>5. On the basis of the pleadings of the parties, the Trial Court framed relevant issues. The Trial Court on examination of the evidence on record held that Damodaran had a long co­habitation with Chiruthakutty and that due to such co­habitation, it could be concluded that Damodaran had married Chiruthakutty and that the first plaintiff was the son born in the said wedlock.The Trial Court accordingly passed a preliminary decree for partition of the suit property into two shares and one such share was allotted to the plaintiffs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">6. Aggrieved by the said judgment and decree, the first defendant filed an appeal, A.S. No.102 of 1996, and the other defendants filed another appeal A.S.No.107 of 1996 before the High Court. While the matter was being argued, yet another contention was put forward by the defendants that if the first plaintiff was born to Damodaran through Chiruthakutty, he could only be an illegitimate child.  As long as  the marriage between Damodaran and Chiruthakutty is not proved, the plaintiffs cannot claim the right </font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">over the coparcenary property. This plea of the defendants was without any pleading to that effect and no such contention was put forth by the defendants before the Trial Court. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>7. The High Court, on appreciation of the evidence on record, held that the first plaintiff was the son of Damodaran. However, the documents produced before the Court would not go to show that Damodaran actually married Chiruthakutty and that no presumption of a pre­existing valid marriage between Damodaran and Chiruthakutty could arise. The High Court opined that the position of the first plaintiff to be of an illegitimate child.  That being so, the plaintiffs would not be entitled for a share in the coparcenary property since the marriage between Damodaran and Chiruthakutty was not a valid one. On the basis of this conclusion, the High Court remitted the matter back to the Trial Court for fresh consideration. The Trial Court permitted the parties to adduce additional evidence and, if necessary, to amend the pleadings so as to consider the factum of marriage.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. Mr. V. Chitambaresh submits that the voluminous documents produced by the plaintiffs would show that Damodaran was the father of  the first plaintiff and Chiruthakutty was the wife of Damodaran. Since their marriage took place more than 50 years prior to filing of the suit (now 90 years), there is no possibility of having any documentary evidence of their marriage.  He has taken us   through   the   various  documents produced by the plaintiffs wherein there are references to periodical payments made to Chiruthakutty from the husband’s house. He has also taken us through the evidence of plaintiffs and, the witnesses examined on behalf of the plaintiffs in support of his contention. It is further argued that the documents produced by the plaintiffs were in existence long before any controversies between the parties arose. These documents would conclusively show that the first plaintiff was the son of Damodaran and Chiruthakutty and the contention of the defendants that Damodaran died as a bachelor or without any legitimate son, cannot be believed at all.  It is further submitted that the law is in favour of declaring legitimacy, as against bastardy. Long course of living together between a male and female will raise a presumption of marriage between them and the children born in such relationship are considered to be legitimate children. It   is  further argued that while such presumption, made under Section 114 of the Indian Evidence Act, 1872, is a rebuttable one, as rightly held by the Trial Court that the defendants have not produced any worthwhile evidence to rebut this presumption in the present case.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">12. On the other hand, Mr. R. Basant and Mr. V. Giri, learned senior counsel for the defendants, would submit that Damodaran had not married Chiruthakutty and that the first plaintiff was not the legitimate son of Damodaran. The suit was deliberately filed at a belated stage when production of conclusive evidence as to this issue was no longer a possibility. No claim for partition whatsoever was made during the lifetime of Chiruthakutty.   It is argued that there is no proof whatsoever either of the marriage or of the long cohabitation and that all the documents relied upon by the plaintiffs are documents that came into existence after the death of Damodaran except Exhibit  A3. It  is further argued that  even Exhibit A­3 does not prove the marriage/long co­habitation between Damodaran and Chiruthakutty.  It is  also  contended that the plaintiffs have not come to the court with clean hands. Therefore, the court should not show any indulgence in their  favour. Accordingly, the defendants have prayed dismissal of the appeals<br></font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>26. As noticed above, the contention of the plaintiffs is that the marriage of Damodaran and Chiruthakutty was performed in the year 1940.  The first plaintiff was born on 12.05.1942 as is evident from Ext.A9.   The documents produced by the plaintiffs were in existence long before the controversy arose between the parties. These documents, coupled with the evidence of PW­2, would show the long duration of  cohabitation between Damodaran and Chiruthakutty as husband and wife. The first plaintiff joined military service in the year 1963 and retired in the year 1979. Thereafter he has taken the steps to file a suit for partition of the suit schedule property.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>27. We have also perused the evidence of the defendants. We are of the view that the defendants have failed to rebut the presumption in favour of a marriage between Damodaran and Chiruthakutty on account of their long co­habitation. In the circumstances, the High Court was not justified in setting aside the said judgment of the Trial Court.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>28. Resultantly, the appeals succeed and are accordingly allowed. The judgment of the High Court impugned herein is set aside and the judgment and decree passed by the Trial Court is restored. Parties are directed to bear their respective costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>32. Since there is no limitation for initiating final decree proceedings, the litigants tend to take their own sweet time for initiating final decree proceedings.  In some States, the courts after passing a preliminary decree adjourn the suit sine die with liberty to the parties for applying for final decree proceedings like the present case. In some other States, a fresh final decree proceedings have to be initiated under Order XX Rule 18.  However, this practice is to be discouraged as there is no point in declaring the rights of the parties in one proceedings and requiring initiation of separate proceedings for quantification and ascertainment of the relief. This will only delay the realization of the fruits of the decree.  This Court, in Shub Karan Bubna (supra), had pointed out the defects in the procedure in this regard and suggested for appropriate amendment to the CPC.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>33. We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu.  After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC.  The courts should not adjourn the matter sine die, as has been done in the instant case.  There is also no need to file a separate final decree proceedings. In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree. Needless to state that the suit comes to an end only when a final decree is drawn. Therefore, we direct the Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate  possession of the property, suo motu and without requiring initiation of any separate proceedings</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '045941f6443b1856b4788321f0056261.jpeg', 'c2851260d7045e163b608e481fe6b4ca.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-15', 1, '', '', '2022-06-14 15:22:30', '2022-06-15 06:23:58'),
(1800, 'g575henfqdSz7GEf6AMcNCMBQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Power of attorney holder of an accused in a criminal case cannot maintain a Petition be it under Article 226 or 227 of the Constitution of India or Criminal Petition under Section 482 Cr.P.C. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Samatha Christina Delfina Wills and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 24602 of 2021 decided on 1 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Brief facts leading to the filing of the present petition, as borne out from the pleadings are as follows:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> The 1st petitioner is the wife of 5th respondent/complainant. Through a website named Elite Matrimony the 1st petitioner and the 5th respondent got married on 06-06-2021. On 09-06-2021 the wife/1st petitioner travels to the matrimonial house at Hyderabad. It is alleged that from 12-06-2021 the wife was tortured by  the  husband/5th respondent barely five days after marriage. On 11-07-2021 the wife flies to her ancestral house at Kolkata. On 17-07-2021 the complainant and his parents appear to have travelled to Kolkata to persuade the 1st petitioner to come back to Bangalore. Not  acceding to the request, both the petitioners flew to London, United Kingdom. On 14-11-2021 the petitioners returned to Kolkata for seeking annulment of marriage. By then, the 5th respondent/husband had registered the complaint before the Police at Bangalore on 11-11-2021. Based on the crime so registered in Crime No.216 of 2021 for the  aforesaid offences, the  respondent/police sought to arrest the 1st petitioner. On 19-11-2021 a transit bail was sought and granted to the petitioners by the Court at Kolkata. After the grant of such  transit bail, the petitioners come to the City of Bangalore and  filed the subject petition on 23-12-2021 seeking annulment of proceedings in Crime No.216 of 2021. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The complainant alleges in the complaint that the 1st petitioner after marriage had taken all the jewellery of  his mother stating that she requires them for a photo shoot as she liked ethnic Indian jewels and had not returned the same. Further allegation is that an amount of Rs.7.5 crores was transferred to the account of the 1st petitioner as on deceit she has induced the 5th respondent to shell out with the money on  the ground that a property is being purchased in their joint names. The complainant also alleges that the petitioners were  not even Muslims and have posed themselves as Muslims but they were in fact Christians. On the said complaint, crime in Crime No.216 of 2021 is registered. The moment crime is registered the petitioners have knocked the doors of this Court  in the subject petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The learned counsel for the petitioners submits that a pure matrimonial dispute is sought to be given a colour of crime and also the dispute is purely civil in nature. The allegations made in the complaint, even if taken to be true, would not make out an offence against the petitioners. The allegation against the petitioners is that they have taken away the jewels belonging to the complainant and some money has been transferred from theaccount of the complainant to the account of the 1st petitioner. These are during subsistence of marriage and, therefore, no criminality can be attached to any of the allegations made in the complaint. He would submit that there is no misappropriation of any funds as the property is registered in the names of both the  1st petitioner and the complainant. The learned counsel would further submit that none of the ingredients of Sections 406 and 420 of the IPC can even be made in the case at hand as there is no inducement for purchase of property by the 1st petitioner on the complainant and its dishonest misappropriation. He would further submit that there is no inducement inducing the complainant to part with any money with a dishonest intention and, therefore, seeks annulment of proceedings.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. On the other hand, the learned senior counsel Sri Vivek Reddy, representing the 5th respondent, would vehemently refute the submissions to contend that the writ petition so filed is not even maintainable. Though it is a writ petition invoking Articles 226 and 227 of the Constitution of India read with Section 482 of the Cr.P.C., it is not maintainable, as it is filed by a power of attorney holder and not by the petitioners. He  would  submit that if the petition itself is not maintainable, none of the grounds urged in the petition can be looked at, as it operates as a threshold bar upon the petitioners to urge any of the contentions. Notwithstanding this, on merits of the matter, the learned senior counsel would further contend that the 1st petitioner lured or induced the complainant to part with all the jewels belonging to his mother on the pretext of a photo shoot and all the jewelry was handed over to the 1st petitioner who has admittedly not returned the same but carried to United  Kingdom. In the same way, the 1st petitioner has induced the complainant to part with Rs.7.5 crores sitting in United Kingdom allegedly towards payment of purchase of apartment.  The learned senior counsel would submit that the petitioners are guilty of suppression of facts while seeking an interim order at the hands of this Court and seeks dismissal of  the  petition on  the aforesaid grounds.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. It is not in dispute that the petitioners are presently residing at United Kingdom and the petition is presented by one Mr.Gautam Giri on the strength of a power of attorney executed by the petitioners on 14-12-2021 at Bangalore. The power of attorney appended to the petition is executed at Bangalore, but signed by the executants before the Notary at London. There is  no averment in the entire petition that the said power of attorney holder is aware of the facts of the case. There being no averment to the effect that the power of attorney holder has full knowledge of what is being filed and the reason for presenting the petition by the said power of attorney holder, notwithstanding the fact that it is filed invoking writ jurisdiction of this Court as an amalgam to Section 482 of the Cr.P.C., the writ petition would not become maintainable. The Constitutional Courts have consistently taken a view that the petition under Section 482 of the Cr.P.C. by a power of attorney holder is not maintainable.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. On a coalesce of the judgments so rendered by the Constitutional Courts, what can be unmistakably gathered  is  that the power of attorney holder of an accused cannot maintain a petition be it under Article 226 or 227 of the Constitution of India read with Section 482 of the Cr.P.C. or Criminal Petition under Section 482 Cr.P.C. Therefore, I hold that the present petition filed by the power of attorney holder of the accused, without seeking any permission at the hands of this Court, and without even narrating in the petition that he is personally  aware of the facts of the case, the writ petition filed under  Articles 226 and 227 of the Constitution of India read with Section 482 of the Cr.P.C. is per se not maintainable, as the accused cannot be represented by a power of  attorney  holder and thus, maintain the subject petition.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. On the other hand, in the said rejoinder the petitioners admit that the power of attorney was executed before a notary public in United Kingdom on 14-12-2021. It is also submitted  that the petitioners had approved the draft on 11-12-2021. Therefore, the power of attorney being executed at  Bangalore and notarized at United Kingdom is not in dispute. The petitioner No.1 has filed an affidavit of declaration which  is  dated 29-03-2022 for the first time stating that in view of travel restrictions due to COVID-19 the power of attorney was handed over to a family friend Mr.Gautam Giri and has also sought to defend the allegations made in the complaint. But there is no whisper about the afore-narrated facts and events that have been suppressed by the petitioners while filing the present petition. Therefore, there can be no doubt that the petitioners are guilty of approaching this Court with  unclean  hands and such petitions should be thrown to the winds by imposition of exemplary costs. If there is no candid disclosure of relevant and material facts or the petitioners are guilty of misleading the Court, the petition is to be dismissed at the threshold without considering the merit of the claim. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In the light of the facts so narrated hereinabove and the judgment of the Apex Court in the case of PRESTIGE LIGHTS (supra), the case at hand is to meet its dismissal with imposition jurisdiction of this Court both under Articles 226 and 227 of the Constitution of India and Section 482 of the Cr.P.C.  with unclean hands. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. In the light of point Nos.(i) and (ii) having been answered in the negative against the petitioners, the other point with regard to merits of the matter need not be gone into, as  both the points act as a threshold bar for entertaining the petition and the doors of this Court cannot be considered to be open or even ajar to the petitioners, but they are closed. Therefore, point No.(iii) is not answered.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Writ<span style=\"white-space:pre\">	</span>Petition is dismissed with exemplary cost of Rs.1,00,000/- (Rupees One lakh only) to be paid by the petitioners to the High Court Legal Services Authority,  Bengaluru within four weeks from the date of receipt of a copy of this Court and file an acknowledgment to that effect before the Registry of this Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c9eb150616957a23139a76b44b90fcd0.jpeg', '0aa10b74e5607aeaa44cf6b8710d5b9d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-09', 1, '', '', '2022-06-10 00:59:38', '2022-06-10 07:32:41'),
(1803, 'yizs1dx2zdJjdx6I6JCUN1hdX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Consumer Protection Act. A Trust is not a person and therefore not a consumer. Consequently, it cannot file a consumer dispute under the provisions of the Act. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pratiba Pratisthan and others Vs Manager, Canara Bank and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3560 of 2008 decided on 7 March 2017.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Madan B. Lokur and Justice Prafulla C. Pant.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. In these appeals a very short question has arisen, namely, whether a\r\ncomplaint can be filed by a Trust under the provisions of the Consumer\r\nProtection Act, 1986 (for short, ‘the Act’). The National Consumer\r\nDisputes Redressal Commission (for short, ‘National Commission’)\r\nanswered the question in the negative and we are in agreement with that\r\nview.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Section 2 (c) of the Act provides for a complainant making a\r\ncomplaint, inter alia, for an unfair trade practice or a restrictive trade\r\npractice adopted by any trader or service provider; a complaint in respect of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">goods (bought by a complainant) suffering from one or more defects; a\r\ncomplaint of deficiency in services hired or availed of by a complainant and\r\nso on.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. A reading of the definition of the words ‘complaint’, ‘complainant’\r\nand ‘consumer’ makes it clear that a Trust cannot invoke the provisions of\r\nthe Act in respect of any allegation on the basis of which a complaint could\r\nbe made. To put this beyond any doubt, the word ‘person’ has also been\r\ndefined in the Act and Section 2(m) thereof defines a person as follows :-\r\n(m) \"person\" includes, ?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(i) a firm whether registered or not;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) a Hindu undivided family;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iii) a co-operative society;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iv) every other association of persons whether registered under the\r\nSocieties Registration Act, 1860 (21 of 1860) or not. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. On a plain and simple reading of all the above provisions of the Act it\r\nis clear that a Trust is not a person and therefore not a consumer.\r\nConsequently, it cannot be a complainant and cannot file a consumer\r\ndispute under the provisions of the Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. In view of the above, we are of opinion that the National\r\nCommission was quite right in holding that the complaint filed by the\r\nappellant Trust was not maintainable.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. We have heard submissions of learned counsel for the parties on the\r\nmerits of the dispute. However, since we have concluded that the complaint\r\nitself was not maintainable, we refrain from making any comment on the\r\nmerits of the dispute.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The appeals are dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6de962f0ac07b44f16af34a2f5c502e9.jpeg', '927a07c9f8d5035979b79ab085790865.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-10', 1, '', '', '2022-06-10 19:42:31', '2022-06-10 15:20:50');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1804, '0GcUm3W3m7FCFWUa23Qnhn94D', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Procedure Code. Charges can be altered anytime during trial and even after the matter is reserved for judgment. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ananda Jonappa Vs State of Karnataka and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 1829 of 2022 decided on 8 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The facts, necessary for consideration of the subject lis, are as follows: A complaint came to be registered on 01-12-2016 on an allegation that when the victim was going to the school at  Masthi, the petitioner is said to have asked her to sit on the bike to drop her at the school. The victim sits on the bike and they reached Masthi Dinne where accused 2 and 3 along with accused No.1 kidnapped and taken the victim  to Halasumaranadoddi. The purpose of such kidnap was to get her married to accused No.4. The complaint further narrates  that she escaped from the clutches of the accused and contacted the complainant and her relatives. Thereafter, a complaint came to be registered against all the accused including the petitioner for offences punishable under Sections 366A, 506 and 34 of the IPC.<span style=\"white-space: pre;\">	</span>The crime came to be registered on 06-12-2016 for an incident that had happened on 01-12-2016.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 4. The issue in the case at hand is not with regard to merits of the matter. What drives the petitioner to this Court at this juncture is an order passed by the learned Sessions Judge altering the charge invoking his power under Section 216 of the Cr.P.C. on an application being made by the prosecution seeking alteration of the charge and inclusion of offence punishable under the Act. The application was filed by the prosecution on 25.01.2021 on account of certain statements recorded during the trial before the learned Sessions Judge. The petitioner and others filed their objections for alteration of the charge. The learned Sessions Judge by his order dated  31-12-2021 allows the application permitting amendment of the charge for inclusion of Section 7 of the Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The learned counsel appearing for the petitioner submits that the very order passed by the learned  Sessions  Judge is contrary to law as the charge is altered after three years of commencement of trial which could not have been done and for such alteration of charge there was no evidence but merely on the statement of the victim which does not touch upon the offence punishable under Section 7 of the Act, the charge that is added casts grave prejudice to the petitioner. He would submit that the victim was taken only to get her married  to  accused No.4 and nobody has indulged in any act that would become  offence punishable under the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. On the other hand, the learned High Court Government Pleader would seek to justify the order and submits that the charge can be altered by the learned Sessions Judge at any time and alteration of charge now made does indicate the offence punishable under the Act. He seeks dismissal of the petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">8. To consider the issue whether the Court would be well within its jurisdiction to alter the charge at any stage of the proceedings, it is germane to notice source of power for such alteration. </font></span><font face=\"Calibri, sans-serif\">Section 216 (1) permits any Court  to alter or add to any charge  at any time before the judgment is pronounced. Other sub- sections quoted (supra) deal with the manner in which such alteration of charge has to be made.</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. This power of alteration of the charge, as found in the statute, can be exercised by any Court, before pronouncement of the judgment, which would mean after the matter is reserved for its judgment the charge can be altered. The power of such alteration of charge is also considered by the Apex  Court  in  the case of ANANT PRAKASH SINHA @ ANANT SINHA v. STATE OF HARYANA AND ANOTHER1 wherein the Apex Court holds that the charge can be altered at any time during the proceedings, which would mean even after the case is reserved  for its judgment. But, what has to be seen is, whether there is material and what is the prejudice that would be caused to the accused by such act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>In the light of the judgments rendered by the Apex Court as afore-quoted, the submission of the learned counsel appearing for the petitioner that the charge could not have been altered after three years of commencement of trial is unacceptable, as  the language employed under Section 216 of the Cr.P.C. is unequivocal that a Court trying a case is empowered to alter the charge. The usage of the word ‘may’ only deploy judicial discretion to be exercised while altering the said charge. Therefore, the submission that charge cannot be altered after the trial has progressed to a large  extent is rejected.  Issue  No.1 is answered against the petitioner.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10. The afore-quoted fact is not in dispute. The offences initially alleged against the petitioner were the ones punishable under Sections 366A, 506 and 34 of the IPC. Whoever, by any means whatsoever, induces any minor girl to go from any place or do any act or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person, the offence would become punishable for a term that may extend to ten years. The said offence is alleged and a charge to that effect is also framed by the Court.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12. The very fact that the victim child has deposed in the examination-in-chief and sustained the same in the cross- examination would indicate that it is a matter for trial, as this Court cannot at this juncture consider as to what has transpired at the time when the victim was carried to a particular place and the statement of the victim being that she was touched inappropriately in all places of her body. After the evidence afore-quoted the prosecution seeks to incorporate offences punishable under Section 7 of the Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>Section 7 of the Act which pertains to “sexual assault” is on its appearance in two parts. The first part of the section deals with acts of touching specific sexual parts of the body with sexual intent. The second part speaks about “any other act” done with sexual intent which involves physical contact but without penetration. Therefore, the second part of Section 7 of the Act is prima facie applicable in the case at hand qua the evidence of  the victim child. The child speaks of touching by the accused at inappropriate places of her body. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">13.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">In the light of what is afore-observed, no fault can be found with the order of the concerned Court in allowing the application filed by the prosecution under Section 216 of the Cr.P.C. seeking alteration of charge for addition of offence </span><font face=\"Calibri, sans-serif\">punishable under Section 7 of the Act. In view of the preceding analysis, I do not find any warrant to exercise the jurisdiction of this Court under Section 482 of the Cr.P.C. to interfere with the order impugned. </font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14.In the<span style=\"white-space: pre;\">	</span>result, the Criminal Petition fails and is accordingly dismissed. It is made clear that the observations made in the course of this order are only for the purpose of consideration of challenge to the order impugned and they shall not bind or influence further proceedings pending before the competent Court.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '631f8971c4a854f4aa07549c328d8e37.jpeg', 'b83adbac57c71676c786db1245336098.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-11', 1, '', '', '2022-06-10 23:09:35', '2022-06-11 16:06:10'),
(1822, '5hp7g7CWnH668ZRpaKOcpZZEz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'False allegation of impotency by wife would cause mental disharmony to husband and amounts to mental cruelty, which would enable the husband to seek divorce on the ground of cruelty. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shashidhar Irappa Chachadi Vs Vijayalaxmi Shashidhar Chachadi.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>MFA 102625 of 2015 decided on 31 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Sunil Dutt Yadav and Justice K.S. Hemalekha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The present appeal is preferred by the husband assailing the judgment and decree dated 17.07.2015, passed in M.C. No.175/2014, on the file of Principal Judge, Family Court, Dharwad, whereby the petition filed by the husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act” for short) seeking decree of divorce on the ground of cruelty came to be dismissed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The husband filed the petition under Section 13(1)(ia) of the Act, seeking decree of divorce on the ground of cruelty. The marriage solemnized on 13/05/2013 is not disputed by the parties. It is averred by the husband that the wife was co-operative for one month, however, her behavior altogether changed later on. It is averred that she refused to do household work, also started making allegations against&nbsp; her&nbsp; husband&nbsp; that&nbsp; he&nbsp; is&nbsp; incompetent&nbsp; to&nbsp;discharge his matrimonial obligations, he is an unfit person to be a husband, the allegation of impotency was disclosed not only before him, but also before relatives of both parties, which caused lot of embarrassment to the husband resulting in mental torture, which was intolerable to lead the life with his wife and thus, sought for a decree of divorce. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. On the other hand, the wife in her objections denied the averments made in the petition and averred that she had come to the matrimonial home to lead a happy married life, however, her dream to lead a happy married life went in vain due to the nature and distance maintained by the husband. It is averred by the wife that the husband is not interested in the martial life and he would always stay away for one or the other reason due to which it created a doubt in her mind regarding his competency to lead marital life and that he might be an impotent person incompetent to lead marital life. It is further averred that she was always ready to discharge her matrimonial obligations and the husband, in order to cover his own defects, has filed the petition for divorce. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The Family Court framed the following points on the basis of the pleadings of the parties:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space: pre;\">	</span>Whether the petitioner/ husband proves that the respondent/ wife subjected him to cruelty after solemnization of marriage?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Whether the petitioner/ husband is entitled to the decree of divorce as sought for?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>What order?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. The Family Court, by its judgment and order dated 17.07.2015, dismissed the petition filed by the husband under Section 13(1) (ia) of the Act and directed the husband to pay Rs.8,000/- per month to the wife from the date of the judgment till he rejoins her company for leading future marital life.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. It is the foremost contention of learned counsel for the appellant-husband that other than the wife disrespecting the husband as well as her in-laws and refusing to do the household work, had started making serious allegations that the husband is incapable of discharging his matrimonial obligations. The said allegation was not only made before the husband, but also before her and his relatives. This act of the wife has subjected the husband to mental and physical cruelty. It is more so contended that, the allegations so made, having not proved to be true, the Trial Court was not justified in dismissing the petition filed by the husband.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. Per contra, learned counsel for the respondent-wife contended that the marriage between the husband and wife was never consummated, without there being any fault on the part of the wife and that the act of husband created a doubt in her mind regarding incompetency to perform his matrimonial obligations. It is further urged that she is always ready and willing to join the husband inspite of the incapability of the husband to perform his marital obligations and thus, sought to dismiss the appeal and confirm the judgment and decree of the trial Court.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space: pre;\">	</span>Having heard the learned counsel for the parties, the points that arises for consideration are as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space: pre;\">	</span>“Whether the allegation made by the wife that the husband is impotent and not competent to perform matrimonial obligations has resulted in mental cruelty as envisaged under Section 13(1)(ia) of the Hindu Marriage Act, 1955?”</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space: pre;\">	</span>“Whether the proceedings before the Mediator could be relied by the Courts in arriving at a conclusion in granting or rejecting the prayer for divorce?”</b><br></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. The wife has examined herself as RW.1 reiterating the very contention that the behavior of the husband’s staying away from marital obligation has resulted in the mind of wife that the husband is impotent as a result, incompetent to perform his matrimonial obligation&nbsp;Placing reliance on the written statement and evidence of RW.1 stated supra, learned counsel for the appellant-husband would contend that the act of wife by making false allegations about impotency has caused mental cruelty to the husband. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. In regard to mental cruelty, the Hon’ble Apex Court has held in catena of judgments that cruelty includes both physical and mental cruelty as enumerated under Section 13(1)(ia) of the Act and the cruelty needs to be assessed in the facts and circumstances of the case.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21. The objections of the wife at paragraph No.12, indicates that it is her allegation that the husband is impotent, further the cross-examination of RW1 reveals the fact that instructions were given by her to her counsel to file the objections. The careful perusal of the objection reveals the fact that the wife apprehended that the husband is incompetent to perform the matrimonial obligations and he is an impotent. This allegation has been made in her objections as well as in her evidence and also by way of cross-examining PW.1, as regards discharging the burden of proof that her allegation is justifiable, no material is forthcoming and no efforts have been made to prove that the contention raised by her about the impotency of the husband is true and is not merely an allegation, but a fact. This having not been done, the allegation of impotency in the presence of others and her husband would necessarily affect the reputation of the husband. No prudent woman would think of making allegation of impotency in the presence of others, rather she would take necessary steps to see that the reputation of the husband is not affected and not thrown out in public.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22. In the present case, the allegations made by the wife to the extent that the husband in not discharging his matrimonial vows and that creates a doubt in the mind of wife that he is impotent, which has affected the reputation of husband. The wife has failed to discharge the burden to prove that the husband is impotent as the husband is willing to undergo medical examination as stated in his affidavit. Having not proved the allegation, the unproved/unsubstantiated false allegations about impotency has led to mental disturbance of the husband causing disharmony between the husband and wife, which makes the husband unable to stay with the wife. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23. Though Section 13 of the Act does not consider the impotency as the ground for divorce, the false allegation of impotency being made by the wife would definitely cause mental disharmony and this would amount to mental cruelty within the meaning of Section 13(1)(ia) of the Act, and enables the husband to seek divorce on the ground of cruelty.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26. The contention of the respondent-wife that she has never refused to live with the husband and her in-laws and never refused to perform her matrimonial obligations and that the marriage was not consummated in view of the behavior of the husband by staying away from the wife and refusing to perform the marital obligations, these contentions raised by the respondent–wife are not justifiable in view of the fact that the wife has not placed any materials to unshore her contentions. The judgments relied upon by the respondent-wife in Shyamal Sammadar’s case (stated supra) is in different context as the allegations made by the wife were not severe in nature as is in the present case. The other judgment of the Co-ordinate Bench relied upon by the respondent-wife in MFA No.3352/2016 was a petition filed under Section 13(1)(ia) and (ib) of the Act and same is not applicable to the present facts and circumstances of the case. Thus, the judgments relied upon by the respondent-wife is not inconsonance with the present facts. It is relevant to note that the facts of each case are different and there is no straight-jacket formula while considering the term “cruelty” and it depends upon the established pleadings and evidence on record and the inference has to be drawn from the attending facts and circumstances taken cumulatively.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>27. The perusal of the judgment of the trial Court would reveal that the trial Court while dismissing the petition filed by the husband seeking divorce, has taken note of the conciliation proceedings between the husband and the wife before the Mediator and the trial Court takes into consideration the willingness expressed by the wife stating that inspite of the faults and shortcomings, the wife is ready to join the husband and that the husband has stated that he is not willing to join his wife and wants a decree of divorce. This is one of the grounds taken into consideration by the trial Court while deciding the matter on merits.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>30. For the reasons stated supra and in light of the allegations having not been proved to be genuine, and calling the husband an impotent without legally substantiating the same, itself would amount to cruelty within the meaning of Section 13(ia) of the Act and the trial Court was not justified in holding that the cruelty asserted by the husband is not proved. Thus, we are of the considered opinion that the judgment and decree of the Family Court needs to be set aside and the petition filed by the husband under Section 13(1)(ia) of the Act needs to be allowed granting a decree of divorce in favour of the husband. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>31. However, looking into the dispute between the parties and they being separated since 2013, the wife needs to be maintained by the husband, the trial Court has awarded a sum of Rs.8,000/- per month from the date of order till he rejoins the wife. In light of the facts and circumstances of the case and looking into the gross salary of the husband that he is earning Rs.38,000/- per month, award of maintenance by the trial Court at Rs.8,000/- per month to be paid on monthly basis as and when it accrues till she remarries. This amount of Rs.8,000/- would be in the nature of permanent alimony to the wife in view of the granting decree of divorce, till she gets remarried.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space:pre\">	</span>The appeal is allowed in part.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ii.<span style=\"white-space:pre\">	</span>The judgment and decree insofar as dismissing the petition of the husband under Section 13(1)(ia) is set aside and the marriage between the parties solemnized on 13/05/2013 is dissolved.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>iii.<span style=\"white-space:pre\">	</span>The order insofar as granting of Rs.8,000/- p.m. stands affirmed. The husband would continue to pay the amount to the respondent-wife, till she remarries.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>iv.<span style=\"white-space:pre\">	</span>No order as to costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0fa9c584d75e4b9e7349f0b915032b28.png', '40739b56697f72776927a0f48f951443.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-15', 1, '', '', '2022-06-15 18:10:54', '2022-06-15 18:35:30'),
(1823, 'xZXEdOEVPYIrXxuIfxE95nYUE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Proceedings before the mediator are confidential and cannot be relied on by Courts in deciding cases on merits. Karnataka High Court. ', '<p><b>Shashidhar Irappa Chachadi Vs Vijayalaxmi Shashidhar Chachadi.</b></p><p><b><br></b></p><p><b>MFA 102625 of 2015 decided on 31 May 2022.</b></p><p><b><br></b></p><p><b>Justice S. Sunil Dutt Yadav and Justice K.S. Hemalekha.</b></p><p><b>2. The present appeal is preferred by the husband assailing the judgment and decree dated 17.07.2015, passed in M.C. No.175/2014, on the file of Principal Judge, Family Court, Dharwad, whereby the petition filed by the husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act” for short) seeking decree of divorce on the ground of cruelty came to be dismissed.</b></p><p><b>3. The husband filed the petition under Section 13(1)(ia) of the Act, seeking decree of divorce on the ground of cruelty. The marriage solemnized on 13/05/2013 is not disputed by the parties. It is averred by the husband that the wife was co-operative for one month, however, her behavior altogether changed later on. It is averred that she refused to do household work, also started making allegations against&nbsp; her&nbsp; husband&nbsp; that&nbsp; he&nbsp; is&nbsp; incompetent&nbsp; to discharge his matrimonial obligations, he is an unfit person to be a husband, the allegation of impotency was disclosed not only before him, but also before relatives of both parties, which caused lot of embarrassment to the husband resulting in mental torture, which was intolerable to lead the life with his wife and thus, sought for a decree of divorce.</b></p><p><b>4. On the other hand, the wife in her objections denied the averments made in the petition and averred that she had come to the matrimonial home to lead a happy married life, however, her dream to lead a happy married life went in vain due to the nature and distance maintained by the husband. It is averred by the wife that the husband is not interested in the martial life and he would always stay away for one or the other reason due to which it created a doubt in her mind regarding his competency to lead marital life and that he might be an impotent person incompetent to lead marital life. It is further averred that she was always ready to discharge her matrimonial obligations and the husband, in order to cover his own defects, has filed the petition for divorce.</b></p><p><b>5. The Family Court framed the following points on the basis of the pleadings of the parties:</b></p><p><b>1.<span style=\"white-space:pre\">	</span>Whether the petitioner/ husband proves that the respondent/ wife subjected him to cruelty after solemnization of marriage?</b></p><p><b>2.<span style=\"white-space:pre\">	</span>Whether the petitioner/ husband is entitled to the decree of divorce as sought for?</b></p><p><b>3.<span style=\"white-space:pre\">	</span>What order?</b></p><p><b>7. The Family Court, by its judgment and order dated 17.07.2015, dismissed the petition filed by the husband under Section 13(1) (ia) of the Act and directed the husband to pay Rs.8,000/- per month to the wife from the date of the judgment till he rejoins her company for leading future marital life.</b></p><p><b>10. It is the foremost contention of learned counsel for the appellant-husband that other than the wife disrespecting the husband as well as her in-laws and refusing to do the household work, had started making serious allegations that the husband is incapable of discharging his matrimonial obligations. The said allegation was not only made before the husband, but also before her and his relatives. This act of the wife has subjected the husband to mental and physical cruelty. It is more so contended that, the allegations so made, having not proved to be true, the Trial Court was not justified in dismissing the petition filed by the husband.</b></p><p><b>12. Per contra, learned counsel for the respondent-wife contended that the marriage between the husband and wife was never consummated, without there being any fault on the part of the wife and that the act of husband created a doubt in her mind regarding incompetency to perform his matrimonial obligations. It is further urged that she is always ready and willing to join the husband inspite of the incapability of the husband to perform his marital obligations and thus, sought to dismiss the appeal and confirm the judgment and decree of the trial Court</b></p><p><b>19. The wife has examined herself as RW.1 reiterating the very contention that the behavior of the husband’s staying away from marital obligation has resulted in the mind of wife that the husband is impotent as a result, incompetent to perform his matrimonial obligation Placing reliance on the written statement and evidence of RW.1 stated supra, learned counsel for the appellant-husband would contend that the act of wife by making false allegations about impotency has caused mental cruelty to the husband.</b></p><p><b>20. In regard to mental cruelty, the Hon’ble Apex Court has held in catena of judgments that cruelty includes both physical and mental cruelty as enumerated under Section 13(1)(ia) of the Act and the cruelty needs to be assessed in the facts and circumstances of the case.</b></p><p><b>21. The objections of the wife at paragraph No.12, indicates that it is her allegation that the husband is impotent, further the cross-examination of RW1 reveals the fact that instructions were given by her to her counsel to file the objections. The careful perusal of the objection reveals the fact that the wife apprehended that the husband is incompetent to perform the matrimonial obligations and he is an impotent. This allegation has been made in her objections as well as in her evidence and also by way of cross-examining PW.1, as regards discharging the burden of proof that her allegation is justifiable, no material is forthcoming and no efforts have been made to prove that the contention raised by her about the impotency of the husband is true and is not merely an allegation, but a fact. This having not been done, the allegation of impotency in the presence of others and her husband would necessarily affect the reputation of the husband. No prudent woman would think of making allegation of impotency in the presence of others, rather she would take necessary steps to see that the reputation of the husband is not affected and not thrown out in public.</b></p><p><b>22. In the present case, the allegations made by the wife to the extent that the husband in not discharging his matrimonial vows and that creates a doubt in the mind of wife that he is impotent, which has affected the reputation of husband. The wife has failed to discharge the burden to prove that the husband is impotent as the husband is willing to undergo medical examination as stated in his affidavit. Having not proved the allegation, the unproved/unsubstantiated false allegations about impotency has led to mental disturbance of the husband causing disharmony between the husband and wife, which makes the husband unable to stay with the wife.</b></p><p><b>23. Though Section 13 of the Act does not consider the impotency as the ground for divorce, the false allegation of impotency being made by the wife would definitely cause mental disharmony and this would amount to mental cruelty within the meaning of Section 13(1)(ia) of the Act, and enables the husband to seek divorce on the ground of cruelty.</b></p><p><b>26. The contention of the respondent-wife that she has never refused to live with the husband and her in-laws and never refused to perform her matrimonial obligations and that the marriage was not consummated in view of the behavior of the husband by staying away from the wife and refusing to perform the marital obligations, these contentions raised by the respondent–wife are not justifiable in view of the fact that the wife has not placed any materials to unshore her contentions. The judgments relied upon by the respondent-wife in Shyamal Sammadar’s case (stated supra) is in different context as the allegations made by the wife were not severe in nature as is in the present case. The other judgment of the Co-ordinate Bench relied upon by the respondent-wife in MFA No.3352/2016 was a petition filed under Section 13(1)(ia) and (ib) of the Act and same is not applicable to the present facts and circumstances of the case. Thus, the judgments relied upon by the respondent-wife is not inconsonance with the present facts. It is relevant to note that the facts of each case are different and there is no straight-jacket formula while considering the term “cruelty” and it depends upon the established pleadings and evidence on record and the inference has to be drawn from the attending facts and circumstances taken cumulatively.</b></p><p><b>27. The perusal of the judgment of the trial Court would reveal that the trial Court while dismissing the petition filed by the husband seeking divorce, has taken note of the conciliation proceedings between the husband and the wife before the Mediator and the trial Court takes into consideration the willingness expressed by the wife stating that inspite of the faults and shortcomings, the wife is ready to join the husband and that the husband has stated that he is not willing to join his wife and wants a decree of divorce. This is one of the grounds taken into consideration by the trial Court while deciding the matter on merits.</b></p><p><b>30. For the reasons stated supra and in light of the allegations having not been proved to be genuine, and calling the husband an impotent without legally substantiating the same, itself would amount to cruelty within the meaning of Section 13(ia) of the Act and the trial Court was not justified in holding that the cruelty asserted by the husband is not proved. Thus, we are of the considered opinion that the judgment and decree of the Family Court needs to be set aside and the petition filed by the husband under Section 13(1)(ia) of the Act needs to be allowed granting a decree of divorce in favour of the husband.</b></p><p><b>31. However, looking into the dispute between the parties and they being separated since 2013, the wife needs to be maintained by the husband, the trial Court has awarded a sum of Rs.8,000/- per month from the date of order till he rejoins the wife. In light of the facts and circumstances of the case and looking into the gross salary of the husband that he is earning Rs.38,000/- per month, award of maintenance by the trial Court at Rs.8,000/- per month to be paid on monthly basis as and when it accrues till she remarries. This amount of Rs.8,000/- would be in the nature of permanent alimony to the wife in view of the granting decree of divorce, till she gets remarried.</b></p><p><b>ORDER</b></p><p><b><br></b></p><p><b>i.<span style=\"white-space:pre\">	</span>The appeal is allowed in part.</b></p><p><b>ii.<span style=\"white-space:pre\">	</span>The judgment and decree insofar as dismissing the petition of the husband under Section 13(1)(ia) is set aside and the marriage between the parties solemnized on 13/05/2013 is dissolved.</b></p><p><b>iii.<span style=\"white-space:pre\">	</span>The order insofar as granting of Rs.8,000/- p.m. stands affirmed. The husband would continue to pay the amount to the respondent-wife, till she remarries.</b></p><p><b>iv.<span style=\"white-space:pre\">	</span>No order as to costs.</b></p>', 'a643f7866934f0c1815f3ce6059f6562.png', '546282efa541854bc092c86bbc8a42b1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-15', 1, '', '', '2022-06-15 18:38:21', '2022-06-15 18:38:21');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1824, '3E0w8hASUdQVCOAJHAXZRnS64', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Parties cannot claim refund of Court fee on mere reference of dispute to mediation or arbitration unless the dispute is settled after such reference. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K.K. Ibrahim Vs M/S Cochin Kaagaz.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>OP (C) 674 of 2020 decided on 8 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A. Badharudeen.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mere reference of a party for settlement by recourse to\r\nSection 89 of the Code of Civil Procedure would entitle refund of\r\ncourt fee as provided under Section 69A of the Kerala Court Fees\r\nand Suits Valuation Act (hereinafter referred to as `the Act\' for\r\nshort), though the matter not settled finally?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The plaintiff in O.S.No.3/2019 on the file of the\r\nAdditional Sub Court, North Paravur, has filed this Original\r\nPetition under Article 227 of the Constitution of India seeking\r\nmodification of order dated 07.06.2019 passed in O.S.No.3/2019 in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the above Suit, whereby the learned Sub Judge referred the parties\r\nin the Suit for arbitration after closing the Suit, without order for\r\nrefund of 1/10th court fee paid by the petitioner/plaintiff in the Suit.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. It is argued by the learned counsel for the petitioner that\r\nthe petitioner herein paid 1/10 court fee to the tune of Rs.1,21,840/-\r\nat the time of institution of the Suit. Since the parties were referred\r\nto arbitration, the plaintiff is entitled to get return of the 1/10 court\r\nfee paid by him. When the learned counsel was asked to point out\r\nthe enabling provisions in the Act, it is fairly submitted by the\r\nlearned counsel for the petitioner that there is no direct provision in\r\nthe Act enabling return of 1/10 court fee paid, on mere reference\r\nunder Section 89 of C.P.C.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. It is submitted by the learned counsel for the petitioner <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">further that there is no decision on this point. However, the learned\r\ncounsel given emphasis to Section 69A of the Act to canvass refund\r\nof 1/10 of court fee as contended. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">A plain reading of the above provision would make it clear that\r\nwhen a Suit or appeal or other proceedings before any court is\r\nsettled by recourse to Section 89 of C.P.C, the whole court fee paid\r\nshall be refunded except in interlocutory matters. Thus it is clear\r\nthat Section 69A of the Act would come into play, only when the\r\ncase is settled by recourse to Section 89 of C.P.C. It is true that\r\nsettlement of disputes dealt under Section 89 of C.P.C includes </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">`arbitration\' as well. However, Section 69A of the Act makes the\r\nposition without any iota of doubt that refund of court fee is\r\nprovided only when a Suit, appeal or other proceedings before any\r\ncourt is settled by recourse to Section 89 of C.P.C and refund is not\r\npermissible on mere reference of parties. Thus it is clear that mere\r\nreference of parties by different modes of settlement provided\r\nunder Section 89 of C.P.C is not sufficient to refund the entire court\r\nfee paid as contended, and the statutory mandate is settlement of\r\nthe dispute by recourse to Section 89 of C.P.C. Earlier, before\r\nintroduction of Section 69A, Section 69 of the Act delat with\r\nrefund of court fee in cases of compromise or when Suit is decided\r\non the admission of parties. Proviso to Section 69 of the Act\r\nintroduced by way of amendment w.e.f 5.12.1990 states that no\r\nrefund shall be ordered where only one-tenth of the amount of fee\r\non plaint as required Section 4A or one-third of the amount of fee\r\non memorandum of appeal as required by Section 52 has been paid\r\nby the parties.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">7. While pressing for refund of court fee, the learned\r\ncounsel for the petitioner placed a Division Bench decision of this\r\nCourt reported in [2011(4) KHC 568], Manilal Panicker S. v. Titto\r\nAbraham, to contend that while dealing with impact of Section 69,\r\nthis Court held that where a compromise or settlement has been\r\narrived at the Lok Adalat in a case referred to it, the entire court fee\r\npaid, whether it is 1/3rd, 1/10th or one half, shall be refunded in the\r\nmanner provided under Central Court Fees Act. The above\r\ndecision was rendered after referring Section 21 of the Legal\r\nServices Authorities Act, 1987, holding that the said provision\r\nenvisages refund of court fees in the manner provided under the\r\nCentral Court Fees Act. The said decision further held that full\r\namount of the court fee paid in respect of the plaint in a case where\r\nthe court has referred the parties to the suit to any one of the ADR\r\nmechanisms enumerated under Section 89(1) of C.P.C, is to be\r\nrefunded on settlement or compromise before it. It has been held\r\nspecifically that the right to refund the court fee, by virtue of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 21 of Legal Services Authorities Act would accrue only on\r\nsettlement or compromise. Be it so, it cannot be said that mere\r\nreference of parties for arbitration or other modes of settlement\r\nprovided under Section 89 of C.P.C by itself is sufficient to refund\r\nthe court fee paid by the parties, either in full or 1/10 or 1/3, as the\r\ncase may be. There shall be a settlement in view of the reference\r\nand in such cases alone refund provided under Section 69A of the\r\nKerala Court Fees and Suits Valuation Act can be resorted to.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>8. Here the petitioner has not produced any materials to\r\nsubstantiate the fact that on reference to arbitration, the dispute was\r\nsettled. In view of the matter, the contention raised by the\r\npetitioner to the effect that the petitioner is entitled to get 1/10th of\r\nthe court fee paid merely because the parties were referred to\r\narbitration by recourse to Section 69 of the Act cannot sustain and\r\ntherefore, the said contention is found against. Consequently, I am\r\nnot inclined to interfere with the order of the learned Munsiff in\r\nany manner.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Accordingly, this Original Petition fails and hence the same is\r\ndismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e7f00880d164454aedf95c3ae0a5af94.jpeg', '6b37112ba8491a5684ff5cba96a45ff2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-20', 1, '', '', '2022-06-15 19:34:41', '2022-06-20 07:17:11'),
(1825, 'ph6ITDpPpgM5mUYJJrK63nWUJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Definition of \'resident\' under the Income Tax Act is for the purpose of including persons in the tax net and has no application for determining Citizenship. Rajasthan High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kamla Hanuman Ram Chodhary Vs Hindustan Petroleum Corp. Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>D.B. Special Appeal 418 of 2022 decided on 23 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sandeep Mehta and Justice Vinod Kumar Bharwani.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mr. Muktesh Maheshwari, learned counsel representing the\r\nappellant writ petitioner submits that the respondent No.4 was not\r\nqualified to be appointed as distributor under the Notice\r\n(Annexure-P1) and the guidelines applicable in the Hindustan\r\nPetroleum Corporation Ltd. for award of LPG distributorship. He\r\nurged that it is an admitted position that the respondent was not\r\nresiding in India within a period of previous 180 days as on the\r\ndate of award of dealership and thus, he was not a resident of\r\nIndia in terms of the definition of resident of India provided under\r\nthe Income Tax Act and consequently, he could not have been\r\nawarded the dealership. On these grounds, Mr. Maheshwari\r\nimplored the Court to admit the appeal and stay the impugned\r\norder.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner asserted before the learned Single Bench that\r\nthe respondent No.4 was, as a matter of fact, a Non Resident\r\nIndian and hence, he was clearly in violation of the qualification as\r\nlaid down in point No.2(b) of ‘Common Eligibility Criteria for all\r\nCategories’ in the notice for appointment of LPG distributors dated\r\n13.10.2010 which stipulates that an eligible candidate must be a\r\nresident of India.\r\nLearned Single Bench took note of the fact that the\r\nrespondent No.4 was serving as a Customs Clerk in the UPS\r\nSupply Chain Solutions Inc. in Dubai from 07.11.2007 till March,\r\n2010 when the application was made. Dealing with the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contentions advanced on behalf of the petitioner, learned Single\r\nBench held that the complaint which was made by the petitioner\r\nagainst the declaration of result after seven months of the\r\nissuance of the declaration of result through LOI dated 22.01.2011\r\nand thus, the same was time barred.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Learned counsel Mr. Maheshwari urged that as it is a case of\r\nfraud, the limitation of 30 days for filing the complaint would not\r\npreclude the appellant from filing the appeal beyond the period of\r\nthirty days because the case would be covered under clause 23 of\r\nthe guidelines and as the information furnished by the applicant\r\nwas false, the allotment can be cancelled at any point of time. In\r\nthis regard, it may be noted here that there is no such assertion\r\nthat the respondent, made any false declaration at the time of\r\napplying for the gas dealership in question. The petitioner has\r\ntried to harp upon the definitions of ‘Indian Resident’ as provided\r\nunder the Foreign Exchange Management Act, 1999 and the\r\nIncome Tax Act, 1961 for claiming that the respondent was not a\r\nresident of India. The objections submitted by the appellant in this\r\nregard were dealt with by the competent officer of the oil company\r\nand were rejected on merit. Even though, the same were time\r\nbarred.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>We are prima facie of the view that there is no reason to\r\naccept the assertion of the appellant that the respondent was not\r\na resident of India by applying the provisions of the Foreign\r\nExchange Management Act, 1999 and the Income Tax Act, 1961\r\nbecause, both the acts have a different object and purposes. The\r\ncondition imposed by the Income Tax Act that a person residing in\r\nIndia for a continuous period of 180 days would be considered to\r\nbe a resident of India, is for the purpose of bringing such person\r\nin the purview of the Income Tax Act. The definition is simply\r\ndesigned for the purpose of including the persons who are in India\r\nfor a period of 180 days to bring in the tax net and not for the\r\npurpose of determining the citizenship or for deciding the\r\npermanent resident status of such person.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Apparently, the respondent owns properties in India. He is a\r\nbonafide resident of District Barmer and has all necessary\r\nidentification documents which conclusively establish his status as\r\na resident of India. The learned Single Bench extensively dealt\r\nwith this aspect of the matter and turned down the argument\r\nadvanced by the appellant’s counsel by assigning valid reasons.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In view of the above facts, on both counts i.e. non filing of\r\nthe compliant within the stipulated period of one month and on\r\nmerits as well, the petitioner has no grounds to challenge the\r\nimpugned order, which does not suffer from any infirmity\r\nwhatsoever warranting interference therein.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Hence, the appeal fails and is dismissed as being devoid of\r\nmerit.&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '71925a4d42d105690415028de850572e.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-20', 1, '', '', '2022-06-15 19:44:51', '2022-06-20 12:04:36'),
(1827, 'IBNsMuHNvLRg3p9mpFHohCD0h', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Pure official communication between two people does not amount to ‘publication’ within the meaning of Section 499 IPC to constitute the offence of defamation. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">D. Roopa Vs H.N. Sathyanarayana Rao.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Criminal Petition 72 of 2022 decided on 6 June 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice M. Nagaprasanna</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">The petitioner is before this Court calling in question the proceedings in C.C.No.2610 of 2020 pending before the IX Additional Chief Metropolitan Magistrate, Bangalore, whereby the learned Magistrate takes cognizance for the offences punishable under Sections 357, 499 and 500 of the IPC.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">3. Shorn of unnecessary details, facts in brief germane for consideration of the subject lis are as follows:-</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">The respondent/complainant is an officer of the Indian Police Service having retired on attaining the age of superannuation on 31.07.2017.&nbsp; The petitioner was posted as&nbsp;Deputy Inspector General (DIG) Prisons in the Department of Prisons, Government of Karnataka. The petitioner and the respondent were in the same department and the petitioner was an officer of a rank below to that of the respondent. On 12.07.2017 the allegation is that the petitioner had made defamatory statement on the respondent by way of written words published in the media and had thereby committed offences punishable under Sections 357, 499 and 500 of the IPC. The contention of the respondent is that by the said words, the petitioner had tarnished the image of the respondent by giving wide publicity of the report which was communicated by the petitioner to the Head of the Department. The wide publicity alleged is for the reason print and visual media carried the said report.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">4. On the basis of the aforesaid report dated 12-07-2017, the respondent registers a complaint invoking Section 200 of the Cr.P.C. for offences punishable under Sections 357, 499 and 500 of the IPC for defamation. After recording statements of&nbsp;witnesses, the petitioner and the respondent, the learned Magistrate in terms of order dated 22-10-2019 takes cognizance and directs registration of criminal case against the petitioner and also issued summons against the accused/petitioner. It is at that juncture the petitioner has knocked the doors of this Court in the subject petition.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">6. The learned counsel for the petitioner would urge the following contentions:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(a)<span style=\"white-space: pre;\">	</span>That since the allegation that is made is performed during the course of conduct of official duty sanction under Section 197 of the Cr.P.C. is mandatory. Admittedly, there is no sanction in the case accorded to prosecute the petitioner and therefore, the entire proceedings would stand vitiated.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(b)<span style=\"white-space: pre;\">	</span>The ingredients that are required to drive home Section 499 of the IPC are totally absent in the case at hand as the petitioner has communicated to the Head of the Department in the official capacity and there is no evidence that the&nbsp; petitioner&nbsp; has&nbsp;communicated the same to the media both visual and print. Official communication of true facts or events cannot mean that they would be defamation of any officer much less the respondent.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(c)<span style=\"white-space: pre;\">	</span>Section 199 of the Cr.P.C. permits only an aggrieved person to invoke Section 499 or Section 500 of the IPC. The complainant cannot be construed to be an aggrieved person.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">7. On the other hand, the learned senior Counsel representing the respondent would submit that the petitioner was, on the date of lodging of the complaint, holding a different post and, therefore, no sanction is required to prosecute the petitioner. The incident that has led to the alleged defamation is not referable to any public work that was discharged by the petitioner and, therefore, protection under Section 199(2) of the Cr.P.C. is not available. He would submit that the communication is sent by the petitioner to the head of the Department as also to both print and visual media and as such, it is a matter of trial for the petitioner to come out clean in the proceedings.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">8. I have given my anxious consideration to the submissions of the learned counsel appearing for the petitioner and the learned senior counsel for the respondent and perused the material on record. In furtherance whereof, the following issues fall for my consideration:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(i)<span style=\"white-space: pre;\">	</span>Whether proceedings instituted for offences punishable under Sections 499 and 500 of the IPC for defamation would be rendered illegal for want of sanction under Section 197 of the Cr.P.C.?</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(ii)<span style=\"white-space: pre;\">	</span>Whether the alleged communication/report dated 12-07-2017 amounts to defamation within the meaning of ingredients of Section 499 of the IPC against the petitioner?</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">9. Issue No.1:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(i)<span style=\"white-space: pre;\">	</span>Whether proceedings instituted for offences punishable under Sections 499 and 500 of the IPC for defamation would be rendered illegal for want of sanction under Section 197 of the Cr.P.C.?</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">The petitioner and the respondent are feathers of the same department. Prior to the entry of the petitioner as DIG, Prisons, the respondent was working as DGP &amp; Inspector General (Prisons). The petitioner while working as DIG (Prisons) conducted a review about functioning of prison on 12.07.2017. The outcome of review was a communication to the DGP &amp; Inspector General (Prisons) in the form a report. The report is about continued irregularities in the Prison. The narration contains the inspection conducted by the petitioner from time to time.&nbsp;The narration brings about some grave aspects of illegalities happening in the Prison and also suggested corrective measures that need to be taken. While saying so, it was also noted that there were some allegations against the respondent that also needs to be looked into and stringent action be taken against those who are making such allegations against the respondent.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">10. The communication is not sent to any other person, as could be seen from the communication itself. It is a simple communication from the petitioner to the respondent who is the Head of Prisons. It would have been a circumstance altogether different if the communication had been made to any other quarter in the Department, Government, print or Visual media. It transpires that newspapers next day carried the report and even the visual media. It is after the publication came about, the&nbsp;respondent retired from service on 31-07-2017 on attaining the age of superannuation. On his retirement, he registers the impugned private complaint against the petitioner alleging that the act of the petitioner in communicating the report and the same being published in both print and visual media has defamed him. The alleged defamatory part of the communication is what is highlighted in the afore-quoted report dated 12.07.2017. On the registration of the private complaint, recording of sworn statement took place and the learned Magistrate takes cognizance of the offence punishable under Sections 357, 499 and 500 of the IPC against the petitioner. It is at that juncture the petitioner has knocked the doors of this Court.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">11. It is not, cannot be in dispute that the report communicated by the petitioner to the respondent was in the official capacity. The narration in the report is a blend of inspection taken up by the petitioner from time to time in the official capacity. Therefore, the entire act revolves around the official duties and on the official capacity of the petitioner. If any act being done by a public servant in the official capacity is to be alleged to have a colour of crime and criminal law is to be set in motion, on such allegations sanction for setting such criminal law in motion in terms of Section 197 is imperative.&nbsp;</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">12. It is an admitted fact that the Court has taken cognizance of the offence against the petitioner for offences punishable under Sections 357, 499 and 500 of the IPC. Without doubt, they are offences punishable under the Code and the Court could not have taken cognizance without an order of sanction from the hands of the Competent Authority being placed before the Court. There could have been no question of further proceedings being taken up without an order of sanction. Several Constitutional Courts have, while considering a case that is instituted for the offence punishable under Section 499 or 500 of the IPC which deals with defamation have so interpreted that sanction under Section 197 of the Cr.P.C. is imperative. If the kernel of the article or letter alleging defamation is seen, as quoted (supra), it would demonstrate reasonable connection to the discharge of official duty of the petitioner.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">13. The aforesaid interpretation is further amplified by the Apex Court in the case of D.DEVARAJA3 (supra), wherein the Apex Court has interpreted sanction under Section 197 of the Cr.P.C. to be imperative, if the allegation that drives a case to the concerned criminal Court is in discharge of official duty or has a reasonable connection to it.&nbsp;</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">14. Insofar as non-obtaining of sanction from the hands of the Competent Authority prior to the Court taking cognizance, it is an admitted fact that in the case at hand, no sanction is sought or accorded by the Competent Authority. Therefore, any proceeding of taking cognizance and setting of criminal law in motion thereon without sanction will lose its legs to stand and would, therefore, suffer from want of tenability.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">16. The judgments relied on by the learned senior counsel representing the respondent would bring no assistance to him as they are all judgments rendered in the peculiar facts of those cases. It is no law, declared by the Apex Court that sanction would not be required if the public servant has ceased to hold that particular post. As long as the public servant remains a public servant and his/her actions are sought to be alleged of crime, sanction would become necessary.&nbsp; The judgment in the case of PARKASH SINGH BADAL (supra) was concerning requirement of sanction after PARKASH SINGH BADAL had ceased to be the Chief Minister of Punjab. The act committed while he was the Chief Minister was sought to be alleged after cessation of office. The cadre officers would cease to become public servants only on their cessation of service by any mode. They cannot be compared to politicians. Same goes with every judgment that is relied on by the learned senior counsel appearing for the respondent.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">17. The other judgments that are relied on are concerning the fact whether sanction under Section 197 of the Cr.P.C. would be required for acts performed by such public servant which were not in the discharge of their official duty. The reasonable connection between the official duty and the alleged act committed by those public servants is what was considered by the Apex Court in the other case – URMILA DEVI (supra). Therefore, the judgments relied on in the case of D.DEVARAJA (supra) and that of other High Courts is what would become applicable to the case at hand and none of the armory from the arsenal of the learned senior counsel appearing for the respondent would support the case of the respondent, as the judgment in the case of D.DEVARAJA (supra) is overwhelming qua the facts of the case at hand. Therefore, I answer issue No.1 against the respondent holding that the learned Magistrate could not have taken cognizance of the aforesaid offences without an order of sanction for such prosecution from the hands of the Competent Authority.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">18. Issue No.2:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(ii)<span style=\"white-space: pre;\">	</span>Whether the alleged communication/report dated 12-07-2017 amounts to defamation within the meaning of ingredients of Section 499 of the IPC against the petitioner?</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">The second issue is as to whether the report submitted would be defamatory also merits consideration. In my view, the report was an official communication from the petitioner to the head of the department.&nbsp; The factual happenings in the prison were highlighted and what was being spoken about was only a caution. A pure official communication without it being referred to any other department or a quarter, cannot become the ingredient of Section 499 of the IPC.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">A perusal at the provision of law that is invoked to bring in allegations under Section 499 of the IPC clearly mandates that one who makes or publishes any imputation concerning any person with an intention to harm is said to defame the said person, except the issues covered under the exceptions. Therefore, making or publishing is the nucleus of the section. The words makes or publishes if considered qua the impugned communication, it becomes clear that even if it is made, it is not published to any quarter by the petitioner. Making of the communication is also restricted to the reporting of outcome of the inspection and between two people. It is, on its perusal, a pure official communication between two people as to what was happening in the prison during the inspection that was conducted. In these circumstances, reference being made to the judgment of the Apex Court in the case of RAJESH RANGARAJAN V. CROP CARE FEDERATION OF INDIA AND ANOTHER, becomes apposite.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">19. In the light of the preceding analysis and the admitted fact that no sanction is sought or granted by the Competent Authority to prosecute the petitioner for offences punishable under Sections 499 and 500 of the IPC and the fact that the communication being purely official between two people, the contents of it, in the considered view of this Court, would not attract the ingredients of Section 499 of the IPC, as it cannot be held to be defamatory. Therefore, I hold issue No.2 in favour of the petitioner for the reasons indicated hereinabove.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">20. It is trite that criminal prosecution is a serious matter; it affects the liberty of a person, therefore, in cases where this Court finds that permitting further proceedings would become an abuse of the process of the law or would result in miscarriage of justice, exercise of jurisdiction under Section 482 of the Cr.P.C. to obliterate such proceedings would become imperative. Wherefore, further proceedings against the petitioner, cannot be permitted to be continued.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">21. O R D E R</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(i)<span style=\"white-space: pre;\">	</span>The Criminal Petition is allowed.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(ii)<span style=\"white-space: pre;\">	</span>The impugned proceedings in C.C.No.2610 of 2020 pending before the IX Additional Chief Metropolitan Magistrate, Bangalore stands quashed.</span></font></span></p>', 'bb20e3294f9e839f86586df8d15cd6fa.jpg', '7f1db693ecf4e10f47c7a3205fa28058.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-17', 1, '', '', '2022-06-15 23:28:33', '2022-06-17 10:21:01');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1828, 'jLH1e7ttLnceEQrA1V3KHSTeG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mere possession of liquor, without the knowledge on the part of the possessor that the bottles were unlawfully imported, transported, manufactured, duty-escaped does not constitute offence under the Excise Laws. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nagaraju Kullappa Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Revision Petition 948 of 2013 decided on 6 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.B. Prabhakara Sastry.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The present petitioners, as accused Nos.1 and 2 respectively, were tried by the Court of the learned I Additional Civil Judge and Judicial Magistrate First Class, Malavalli, (hereinafter for brevity referred to as “the Trial Court”) in C.C.No.673/2010, for the offences punishable under Sections 32 and 34 of the Karnataka Excise Act, 1965 (hereinafter for brevity referred to as “the Excise Act”) and were convicted for the said offences by its judgment of conviction and order on sentence dated 18-12-2012.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The summary of the case of the prosecution in the Trial Court is that, on 17-07-2010, at about 10:15 a.m., the present petitioner – Sri. Nagaraju, who was accused No.1 in the Trial Court along with one Sri. Devaraju who was accused No.2 in the Trial Court were found carrying in total 66 (sixty-six) bottles of three varieties of whisky at Anantharamaiah Circle, Malavalli, which is a public place, within the limits of the complainant Police Station and thus have committed the alleged offences punishable under Sections 32 and 34 of the Excise Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. In order to prove the alleged guilt against the accused persons, the prosecution got examined in all five witnesses from PW-1 to PW-5 and got marked documents from Exs.P-1 to P-6 and Material Objects from MO-1 to MO-4. Neither any witness was examined nor any documents were marked as Exhibits from the side of the accused persons.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. After hearing both side, the Trial Court by its impugned judgment of conviction and order on sentence dated 18-12-2012 convicted the accused persons for the offences punishable under Sections 32 and 34 of the Excise Act and sentenced them accordingly.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. Learned counsel for the petitioners/accused, in his brief argument submitted that, the conviction of the accused persons by the Trial Court since is solely based upon the evidence of the two Police witnesses, who were examined as PW-1 and PW-2 and since the independent witnesses have also not supported the case of the prosecution, the impugned judgment of conviction and order on sentence passed by the Trial Court which was further confirmed by the learned Sessions Judge’s Court deserves to be set aside. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. Per contra, learned High Court Government Pleader for the respondent complainant, in his brief argument submitted that, merely because PW-1 and PW-2 were the Police witnesses, by that itself, their evidence cannot be doubted or discarded, when in fact, their evidence is also supported by the documentary evidence like the seizure panchanama and the seizure of the articles under the said panchanama including MO-1 to MO-3 and MO-4. He further submitted that, the Police had no reasons for falsely implicating the accused persons, as such, merely because the independent witnesses have not supported the case of the prosecution, the judgment of conviction and order on sentence passed by the Trial Court cannot be held to be erroneous.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. The case of the prosecution has begun with PW-1 – Sri.M.K. Ramesha, the then Circle Inspector of Police of Malavalli Town. He is said to have received a credible information at 10:15 a.m. on 17-07-2010. Even according to  the  said  Police  Officer,  who  was  examined  as  PW-1 (CW-1), on the said day at about 10:15 a.m., while he was on patrolling duty, he received through telephone, a credible information that near Anantharamaiah Circle in Malavalli, two unidentified persons were carrying liquor bottles in a plastic bag and a plastic cover unauthorisedly. It is based upon the said credible information, he, joined by his staff including CW-4 and CW-5, while patrolling in Town Street (‘pete beedi’ – ‘¥ÉÃmÉ ©Ã¢’ in Kannada), they noticed the accused persons coming on the road from Anantharamaiah Circle, among whom, accused No.1 was carrying a plastic bag on his head with contents in it and accused No.2 was holding a black colour plastic cover in his hand. Both of them were enquired by the Police Officer (PW-1) and that the articles they were carrying were also examined. From the said examination, it was noticed that in the bag the accused No.1 was carrying, there was a carton box which was containing 48 (forty-eight) bottles of Super Jack Classic whisky, each bottle containing 180 ml. of such liquor. In the cover held by the second accused, it had 12 (twelve) bottles of Original Choice Whisky and six Haywards Tetra pack whisky. When enquired, neither of them could state about the details of they securing those items under any licence or permit nor did they possess any bills, permit or licence for purchase of the said articles. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>It is further the case of PW-1 that, when the second accused was physically searched, he was found in possession of a sum of ?1,700/- in cash. Thereafter, a panchanama was drawn in the presence of independent panchas, as per Ex.P-1. Out of the three categories of whisky that was being transported by the accused persons, two bottles from the carton box and one tetra pack and one bottle original choice whisky from the plastic cover were kept separate as samples for their further scientific examination. Thereafter, the accused persons along with the goods were brought to the Station and a report was prepared as per Ex.P-2 and based upon the said report, an FIR was registered as per Ex.P-3. The articles seized were subjected to the Property Register and the accused were produced before the learned Magistrate in accordance with law.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17. A careful analysis of the above evidence placed by the prosecution would go to show that, among the five witnesses examined by it, PW-5 is the Investigating Officer. The material witnesses are PW-1 to PW-4, among whom, PW-3  and  PW-4  who  are  projected  as  independent witnesses have not supported the case of the prosecution. It is only two Police Officers i.e. PW-1 and PW-2 who have supported the case of the prosecution.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. Our Hon’ble Apex Court, in the case of Karamjit Singh Vs. State (Delhi Administration) reported in AIR 2003 Supreme Court 1311, has observed that, the testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. In the instant case, it is not denied that PW-1 was the Circle Inspector of Police on duty on the alleged date of incident and that he was on patrolling duty. His evidence that on the said date, he received a credible information about two unknown persons carrying unauthorisedly liquor bottles with them, has also not been specifically denied in his cross-examination. His evidence that joined by his staff and panchas, he proceeded to the spot and conducted an enquiry with the accused persons also has not been specifically denied, however, a suggestion was made to the witness suggesting that the accused were not present in the spot on the said date and time. The witness has denied the said suggestion. Except making few general denial suggestions, nothing was elicited from the cross-examination of PW-1 which could have weakened the case of the prosecution or stood in support of the accused to dilute the credibility of the evidence of PW-1.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21. The evidence of PW-5 the Investigating Officer coupled with the documentary evidence i.e. Forensic Science Laboratory (FSL) report at Ex.P-6 would go to show that, the Forensic Science Laboratory has examined the contents of all the three bottles and a tetra pack sent to it by the Investigating Officer and has opined that there was presence of ethanol in all the said articles. The percentage of ethanol in articles No.1, 2 and 3 was 42% v/v at 25oC. Therefore, it is further established that the whisky bottles which were being carried by the accused persons when they were apprehended by PW-1 and PW-2 contained ethanol at 42% in them. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22. The next question that would follow is, whether the prosecution has proved that, without possessing any licence or authority or permit to carry those whisky bottles in a public place and being in possession of the same, the accused have committed the offences punishable under Sections 32 and 34 of the Excise Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23. A careful reading of the above Section would go to show that, for constituting an offence under Section 34 of the Excise Act, it is not just sufficient to establish that a person was found in possession with some quantity of any intoxicant without lawful authority, but it is also equally necessary to establish that the possessor should have the knowledge that the articles in his possession have been unlawfully imported, transported, manufactured cultivated or collected, or that he should have the knowledge that the prescribed duty has not been paid on the said articles. Thus, apart from mere possession, the knowledge regarding procuring those articles in an unlawful manner or non-payment of the duty upon the articles in his possession are also necessary ingredients which necessarily have to be proved to convict the accused for the offence under Section 34 of the Excise Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 24. In the instant case, even though the prosecution through PW-1 and PW-2 could able to establish that the present petitioners i.e. accused Nos.1 and 2 were in possession of few varieties of whisky, for which, they could not able to produce any documents including any licence or permit, but the prosecution could not able to establish and prove that the petitioners as accused Nos.1 and 2 had the knowledge that the articles which they were possessing and carrying with them were the articles which were unlawfully imported, transported, manufactured or cultivated or collected or that they had the knowledge that the prescribed duty on those articles was not being paid. However, both the Trial Court and the learned Sessions Judge’s Court, merely by coming to a conclusion that the accused before them were found in possession and transportation of considerable quantity of whisky bottles (sixty-six), which comes to 66 bottles X 180 ml. = 11,880 ml., jumped to a finding that, the prosecution has not only proved that the accused have committed the offence punishable under Section 32 of the Excise Act, but also the offence punishable under Section 34 of the Excise Act, even though there was total absence on the part of the prosecution proving regarding the knowledge on the part of the accused persons regarding the unlawful possession or transportation of the articles and also the knowledge that the prescribed duty was not being paid thereon, at the time of the alleged offences. Since the conviction of the accused persons with reference to the alleged offence under Section 32 of the Excise Act and the sentence ordered for the proven offence which is proportionate to the gravity of the proven guilt though deserves to be confirmed, but their conviction for the offence punishable under Section 34 of the Excise Act since now proved to be uncalled for and perverse, interference by this Court to that limited extent is warranted.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>O R D E R</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>[i]<span style=\"white-space:pre\">	</span>Both these Criminal Revision Petitions stand partly allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>[ii] ...Both the accused persons (petitioners in these two revision petitions) i.e.  Sri. Nagaraju (accused No.1), S/o. Kullappa, Aged about 30 years, R/o. Basavanakeri Ganga, Mathstara Beedi, Malavalli Town, Mandya District and Sri. Devaraju (accused No.2) S/o. Puttaraju, aged about 49 years, R/o. Basavanakeri Ganga, Mathstara Beedi, Malavalli Town, Mandya District, stand acquitted for the offence punishable under Section 34 of the Karnataka Excise Act, 1965.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f047a1870193ee528c7f9c2cfa776726.jpeg', '56e198b219ccdb103a807b8bf611c72b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-17', 1, '', '', '2022-06-16 18:01:45', '2022-06-18 17:03:48'),
(1829, 'sMEQbERXIyp9CymQJahwjFHhD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Where defendant alleges that court has no jurisdiction to try the case, issue should be tried as preliminary issue and if court finds that it has no jurisdiction, plaintiff can proceed litigation in the proper court. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>S. Dhanalakshmi Vs Sahal V.J and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>OP (C) 404 of 2020 decided on 1 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A. Badharudeen</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The learned counsel for the petitioner argued that the\r\npetitioner herein filed I.A.No.2/2020 contending that the Sub\r\nCourt, Kottayam, has no jurisdiction to entertain the Suit since no\r\ncause of action for the Suit arose within the jurisdiction of\r\nKottayam district. It is submitted further that even though the issue\r\nof territorial jurisdiction shall be tried and decided as a preliminary\r\nissue, the Sub Court posted the said petition along with the Suit for\r\nconsidering the said question. According to the learned counsel for\r\nthe petitioner, the said procedure adopted by the trial court is\r\nerroneous and, therefore, the same requires interference with\r\ndirection to the trial court to consider and pass orders on merits in\r\nthe petition treating the same as a preliminary issue. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Similarly, the learned counsel for the petitioner placed\r\nanother decision reported in [2017 (4) KLT 468], Prasad v.\r\nTravancore Devaswom Board, to contend that where issues of law\r\nand facts are framed in a Suit, those relating to law, if it relates to\r\njurisdiction and bar to suit, be tried first. In this case, strangely, no\r\nissue was framed with regard to law and the court below proceeded\r\nto try the issues of facts but to dismiss the Suit on a question\r\nrelating to jurisdiction, though no such issue had been framed at all.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The learned counsel highlighted a decision of the Apex\r\nCourt reported in [(1989) 2 SCC 163], A.B.C. Laminart Pvt. Ltd.\r\nv. A.P. Agencies and paragraphs 13 to 15 of the judgment are\r\nhighlighted to contend that since part of the transaction involved in\r\nthe Suit is within the jurisdiction of Kottayam district, the Sub\r\nCourt, has ample jurisdiction to deal with the matter and, therefore,\r\nthe question of territorial jurisdiction raised at the instance of the\r\ndefendants could not succeed, prima facie. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Coming to the core issue, I have no hesitation to hold\r\nthat where the defendant alleged that the court has no jurisdiction\r\nto try the case and an issue is framed regarding jurisdiction, for the\r\nconvenience of the parties same should have been tried as\r\npreliminary issue and if the court finds that it has no jurisdiction\r\nthe plaintiff can very well proceed the litigation in the proper court.\r\nThe finding regarding jurisdiction at the final stage would only\r\ncause undue hardship to the parties and also that when issue of law\r\nand facts are framed in a Suit, those relating to the jurisdiction to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be tried at the first hand.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. Here, the Suit was instituted in the year 2013. When the\r\nwritten statement was filed as on 03.09.2013, the defendants\r\ncategorically and wilfully admitted that part of the transaction was\r\nwithin the jurisdiction of the Sub Court, Kottayam. However, the\r\nlearned counsel for the petitioner submitted that in the reply\r\naffidavit filed by the petitioner, in para.4, the circumstances led to\r\nthe above contention in the written statement has been explained\r\nand later it was revealed that the plaintiff does not have any\r\nfactories or godowns in other place in Kottayam district except in\r\nErattupetta. I do not think that the above explanation in the reply\r\naffidavit is a reason for retracting the wilful admission made in the\r\nwritten statement, filed as early in the year 2013. It is relevant to\r\nnote that the present application was filed at a much belated stage\r\nin the year 2020.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Going by the impugned order, the procedure adopted by\r\nthe learned Munsiff to decide the question of territorial jurisdiction <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">during the final stage of trial cannot be justified and therefore, the\r\nsaid order is liable to be set aside.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13.. </span></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 20(c) of the C.P.C is emphatically clear on the point that a\r\nSuit can be instituted in a place where the cause of action wholly or\r\npart arises. In the plaint, the plaintiff specifically contended in\r\npara.4 and 10 that part of the transaction took place within the\r\njurisdiction of Kottayam village wherefrom the goods were\r\nconsigned. The said fact was admitted by the defendants in the\r\nwritten statement as well. The said wilful admission cannot be\r\nretracted. In such a case, it is emphatically clear that the Sub\r\nCourt, Kottayam is having territorial jurisdiction in so far as the\r\npresent Suit is concerned and, therefore, the question of jurisdiction\r\nraised by the petitioner cannot be sustained. The question of\r\njurisdiction found against the petitioner. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>This Original Petition stands disposed of as indicated herein\r\nabove.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e443a95f076c7da7acc22b3cefddb599.jpeg', 'c05f091965fe157a3d3185853444766a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-21', 1, '', '', '2022-06-16 18:23:19', '2022-06-21 13:50:20'),
(1830, 'aPFsd4uHX1dWgFdwmGDPsdslJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hyper technical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Arjun Reghu Vs State of Kerala and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.MC 599 of 2021 decided on 6 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A. Badharudeen.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner, who got arrayed as accused No.4 in\r\nS.C.No.768 of 2019 pending before the Assistant Sessions Judge,\r\nChengannur, has initiated this proceedings under Section 482 of the\r\nCode of Criminal Procedure</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. It is argued by the learned counsel for the petitioner that\r\nas on the date of occurrence, ie. on 10.08.2013, the petitioner was\r\naged 15 years and 9 months, therefore, the petitioner should have to\r\nbe dealt under Section 6 of the Juvenile Justice (Care and\r\nProtection of Children) Act, 2015 (hereinafter referred to as `the J.J\r\nAct\' for short) and the relevant provisions to deal with a juvenile.\r\nAccording to the learned counsel for the petitioner, Annexure A\r\nprivate complaint was lodged based on false allegations, arraying\r\nthe petitioner as a person, aged 26 years, among other accused\r\nalleging commission of offences under Sections 324, 326, 308 r/w\r\n34 I.P.C. The Judicial First Class Magistrate Court-I, Chengannur,\r\nconducted enquiry under Section 202 of the Cr.P.C and after having\r\nsatisfied that the complainant had made out a prima facie case,\r\ncognizance was taken for the said offences and ultimately the case\r\nwas committed to the court of Sessions since the offence under <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 308 I.P.C, one exclusively triable by a court of session also\r\ninvolved. It is submitted by the learned counsel for the petitioner\r\nfurther that, in this matter, the question of juvenility is not raised\r\nbefore the committing court or before the Sessions Court so far.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>5. The learned counsel for the petitioner placed heavy\r\nreliance on Annexue C birth certificate of the petitioner showing\r\nhis date of birth as 10.05.1997 and Annexure D, copy of Secondary\r\nSchool Leaving Certificate (SSLC) showing the same as the date of\r\nbirth, to assert the point that the petitioner was a minor at the time\r\nof occurrence.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. On perusal of Annexures C and D, it could be gathered\r\nthat as on the date of occurrence, the petitioner completed 15 years\r\nand 9 months and he was a juvenile. Though the learned counsel\r\nfor the defacto complainant opposed quashment of this\r\nproceedings, he also conceded the age of the petitioner as shown in\r\nAnnexures C and D. The learned Public Prosecutor also not </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">disputed the said fact. In view of the above factual scenario, the\r\nfollowing questions arise for consideration:</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(i) What is the procedure to be followed when a person\r\nclaims juvenility in a regular court where he got arrayed as an\r\naccused?</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(ii) What is the mode of proof in the matter of juvenility\r\nand the burden is upon whom?</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(iii) Once it is found that the claim of juvenility in the\r\naffirmative, what should be the procedure to be followed?</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Following the ratio in Rishipal Singh Solanki v. State\r\nof Uttar Pradesh & Ors.\'s case (supra), when an application <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">claiming juvenility is raised before a court, it would be addressed\r\nunder sub-sections (2) and (3) of Section 9 of the J.J Act. But\r\nwhen a person is brought before a Committee or Juvenile Justice\r\nBoard, Section 94 of the J.J Act would govern the proceedings.\r\nWhen the claim of juvenility is raised, the burden is on the person\r\nraising the claim to satisfy the Court, to discharge the initial burden\r\nand the documents mentioned in Rule 12(3)(a)(i), (ii) and (iii) of\r\nthe JJ Rule, 2007 made under the JJ Act, 2000 or sub-section (2) of\r\nSection 94 of the J.J Act shall be sufficient for prima facie\r\nsatisfaction of the Court to find the question of juvenility.\r\nSimilarly, it is also held that hypertechnical approach should not be\r\nadopted when evidence is adduced on behalf of the accused in\r\nsupport of the plea that he was a juvenile.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. In view of the above settled law, the question of\r\njuvenility raised by the petitioner herein has to be considered by the\r\nAssistant Sessions Judge as provided under Section 9(2) and (3) of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the J.J Act. In view of the matter, the proceedings before the\r\nAssistant Sessions Judge in so far as the petitioner is concerned, is\r\nreverted back to the stage before Section 228 of the Code of\r\nCriminal Procedure and the proceedings subsequent to that stage\r\nshall stand quashed.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>10. Accordingly, this Crl.M.C shall stand allowed in part\r\nwith direction to the Assistant Sessions Judge, Chengannur to\r\ndecide the plea of juvenility raised by the petitioner as provided\r\nunder Section 9(2) and (3) of the J.J Act and take appropriate\r\ndecision.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8d0cdbd061724ace2523ee59e8e6a667.jpeg', '7dbc1fb9da0803a04c2dcfded8d304b8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-22', 1, '', '', '2022-06-16 18:37:16', '2022-06-22 08:25:47');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1831, '6XIDUbxSqVP2VbkbIJ0bCNKo9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Test. Calcutta ???', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Dunlop India Limited Vs M/S/ E.V. Mathai and Sons.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CP 233 of 2008 decided on 13 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Moushumi Bhattacharya.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The applicant prays for setting aside and stay of an e-auction\r\nsale notice dated 21st February, 2022. The sale notice relates to Lots 1 and 2 of\r\nthe assets in the factory units located at Sahagunj and at Ambattur of Dunlop <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">India Limited being the company (in liquidation). The applicant also prays for\r\nsetting aside of a valuation report of the two factories at Sahagunj and Ambattur\r\nof the company (in liquidation) and for stay of operation of a fresh e-auction\r\nnotice dated 9th May, 2022. The fresh notice, pursuant to orders of Court, relates\r\nto the assets at the Sahagunj factory of the company (in liquidation)</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The applicant is one Miller Traders Private Limited, an unsecured creditor\r\nof the company (in liquidation) to the extent of Rs. 23 lacs. The applicant is\r\naggrieved by the alleged depreciated value of the assets at Sahagunj and\r\nAmbattur factories as reflected in the e-auction notice dated 21st February, 2022\r\nfor sale of such properties. The applicant seeks the reasons for such devaluation\r\nand submits that the Official Liquidator has the duty to explain the drastic\r\ndepreciation in the value of assets from 418 crores in 2014 to 13.21 crores in\r\n2022. The applicant relies on an order passed by this Court on 8th April, 2022 in\r\nCA 87 of 2022 by which the Official Liquidator was directed to file an affidavit\r\nexplaining the possible reasons for the depreciated value of the properties and\r\nwas directed to bring an inventory of the properties on record.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">The sale of assets was initiated by the e-auction sale notice of 21st\r\nFebruary, 2022. By the order dated 8th April, 2022, the valuation reports of the\r\nplants and machineries of the factories of the company (in liquidation) at\r\nSahagunj and Ambattur were considered and the Official Liquidator was directed </span><span style=\"font-size: 12pt;\">to explain the reasons of the devaluation of such properties, as reflected in the eauction notice, with the assistance of an empanelled valuer. On 4th May, 2022 in\r\nan application by one Texworth International (CA 89 of 2022) for restraining the\r\nOfficial Liquidator from treating the last bid submitted by Texworth as the\r\nintended bid for Lot 1 of the property was taken up for consideration. The eauction in relation to Lot 1 pursuant to the notice dated 21st February, 2022 was\r\ncancelled for the reasons recorded in the order and Texworth was directed to\r\ncomply with several measures for ensuring price-protection safeguards for sale of\r\nthe assets of the company (in liquidation) with regard to Lot 1 (Sahagunj).</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>On 20th May, 2022, the status of the sale of Lots 1 and 2 was considered\r\nby this Court in the application filed by Miller Traders and it was noted that\r\nMiller Traders/present applicant had preferred an appeal from the order dated\r\n4th May, 2022 by which a fresh e-auction was directed to be conducted for sale of\r\nLot 1 properties and Texworth International was directed to compensate for the\r\ncancellation of the e-auction conducted on 10th-11th March, 2022.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The sale of Lot 2 has also taken place on 10th-11th March, 2022, pursuant\r\nto an order passed by this Court and is subject to the confirmation of the sale\r\nwith the three highest bids retained by the Court in sealed covers. The only step\r\nremaining for confirmation of the sale is a formal application from the Official\r\nLiquidator. Thus, the e-auction sale notices of 21st February, 2022 and 9th May,\r\n2022 have both been given effect to and the properties of Lot 1 and Lot 2 have <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">been auctioned. The applicant has approached this Court to upend the eauctions in their entirety, i.e., in respect of both Lot 1 and Lot 2.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The affidavit filed by the Official Liquidator traces the orders passed in the\r\nwinding up proceedings of the company (in liquidation) culminating in the Official\r\nLiquidator taking possession of the registered office of the company (in\r\nliquidation) and an order passed by the Supreme Court on 26th February, 2013\r\ndirecting status quo till disposal of the Special Leave Petition. The affidavit also\r\nrefers to an order of the Supreme Court dated 12th June, 2013 restraining the\r\npetitioning creditor from disposing of the properties of the company (in\r\nliquidation). The Supreme Court thereafter vacated all interim orders on 29th\r\nJuly, 2016. The affidavit further states that the Official Liquidator took\r\npossession of the assets of the company (in liquidation) at its unit at Sahagunj on\r\n8th May, 2017 with the help of the police. The minutes recording such possession\r\nwere prepared on the spot on 08.5.2017 and record that “…..most of the plant\r\nand machinery had been either removed or broken/damaged condition”. The\r\nOfficial Liquidator also took over the assets at Ambattur on 15th May, 2017 in the\r\npresence of the Tamil Nadu Police and others as recorded in the minutes dated\r\n15.5.2017. The affidavit states that the Official Liquidator appointed M/s ITCOT\r\nConsultancy and Services as the valuer to assess the valuation of the assets of\r\nAmbattur and Mr. P.K. Mitra as the valuer for the Sahagunj unit. Both the\r\nvaluers submitted the respective valuation reports with the Registrar of this\r\nCourt. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>As regards the Ambattur properties, the valuer has this to say; that most of\r\nthe machinery which remains are in a skeletal condition without any internal\r\nparts. The valuer’s report, annexed to the affidavit also depicts the ransacked\r\ncondition of the plant and machineries. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The facts which emerge from the affidavit and the valuers’ reports with\r\nregard to the Sahagunj and Ambattur factories is that most of the plants and\r\nmachineries were stolen and removed and the remaining assets were found to be\r\nin a damaged and valueless condition.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The order makes several references to the fact that the Official Liquidator\r\nneglected to take charge of the assets and properties till 8th May, 2017. The\r\nDivision Bench passed another order on 19th July, 2017 recording that the\r\nOfficial Liquidator has filed reports indicating that the assets at Sahagunj and\r\nAmbattur manufacturing facilities of the company (in liquidation) have “now”\r\nbeen taken possession of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The undeniable facts which emerge from the above orders is that the\r\nOfficial Liquidator took possession of the assets of Sahagunj and Ambattur only\r\nafter 8th May, 2017. The orders passed by the Division Bench on 8th May, 2017\r\nand 19th July, 2017 are evidence of these facts. Hence, the Official Liquidator\r\ncannot be held accountable for the depreciation of the value of the properties\r\nfrom the 2014/2015 till May, 2017. Further, the reports of the valuers state that\r\nthe plants and machineries were already in a highly devalued and damaged <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">condition and could only be categorised as scrap. In any event, five years have\r\npassed since the Official Liquidator took charge of these assets; plants and\r\nmachineries cannot be expected to withstand the ravages of time and natural\r\ncalamities through the intervening years. The Division Bench also noted in the\r\norder dated 8th May, 2017 that there were instances of fire in the facilities.\r\nTechnology has also undergone rapid transformation and may have contributed\r\nto the further devaluation of the properties. Most significantly, the fact of a freefor-all of interested parties leading to rampant destruction of the assets till May,\r\n2017 is corroborated by both the orders of the Division Bench and the reports of\r\nthe valuers.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The first attempt for sale of the assets located at Sahagunj and Ambattur\r\nwas made by a learned Single Judge by orders dated 13th March, 2020 and 8th\r\nJanuary, 2021. The Official Liquidator was directed to publish the sale notices\r\nand the sale was fixed on 19th February, 2021. The date of sale was thereafter\r\nextended and fixed on 5th March, 2021. A further order was passed on 9th July,\r\n2021 on an application made by the Official Liquidator for setting aside the eauction held on 5th March, 2021 on the ground of certain technical glitches. The\r\ne-auction was thereafter directed to be held within a month from 11th February,\r\n2022.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The applicant is an unsecured creditor whose claim is of approximately Rs.\r\n23 lacs. The conduct of the applicant is clearly suspect. The applicant first filed\r\nCA 87 of 2022 for Lots 1 and 2. The order dated 20th May, 2022 records that the\r\nsale of Lot 1 is due to take place on 23rd/24th May, 2022 (which has now already\r\ntaken place) and that the sale for Lot 2 has also taken place but remains subject\r\nto confirmation of the sale of the three highest bids received by the Court. The\r\napplicant, for some unknown reason, challenged an order passed by this Court\r\ndated 4th May, 2022 in respect of Lot 1. The 4th May, 2022 order set aside the eauction held on 10th/11th March, 2022 in respect of Lot 1 property. The Division\r\nBench however by its order dated 20th May, 2022 refused to stay the auction for\r\nLot 1 which was scheduled to be held on 23rd/24th May, 2022.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Even if the submission made on behalf of the Official Liquidator that an\r\nonline search would reveal more than 39,000 records showing a link between the\r\napplicant and the group companies of the company (in liquidation) is discounted,\r\nthe conduct of the applicant is desperate to say the least. The applicant, without\r\na claim to support its acts, has thrown a spanner at every attempt made for sale\r\nof the properties of the company (in liquidation) at Sahagunj and Ambattur. The\r\nground taken in the second application (CA 93 of 2022) of the Official Liquidator <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not being able to explain the reasons for depreciation of the assets is feeble,\r\ndubious and should be rejected outright. As stated above, the record show that\r\nthe Official Liquidator could not have any knowledge or any role to play at the\r\nmaterial point of time, i.e. 2014-2017 when the assets were lying unprotected\r\nand at the mercy of parties whose sole intention was to strip the company (in\r\nliquidation) of any value and frustrate the claims of its workers and creditors.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The irrefutable conclusion is that the applicant does not want closure or\r\nany constructive resolution of the matter but seeks to keep the claims of the\r\ncreditors and workers uncertain and in a limbo for all times to come. If a\r\nreference can be drawn to the meat of the matter – the conduct of the applicant is\r\nsimply not kosher. This Court is therefore of the view that the applicant should\r\nbe subjected to pay costs of Rs. 2,00,000/- to the welfare fund of the workers of\r\nthe company (in liquidation). The said amount shall be paid to the Official\r\nLiquidator for being kept in a separate interest-bearing account for the benefit of\r\nthe workers of the company (in liquidation). The Official Liquidator shall\r\ninformally apprise the Court after a fortnight as to the manner in which the\r\nfunds can be utilised for the purpose directed. CA 87 of 2022 and CA 93 of 2022\r\nare dismissed. Interim orders, if any, passed in aid of these applications, are\r\nvacated.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b6f3695ce6db5ad8ff280afb4f92f656.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-16', 0, '', '', '2022-06-16 19:40:14', '2022-06-22 02:42:40'),
(1832, 'e2zq3YX9QZaFd1Alt6UI0rCYQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Assignment of copyright in the work to make sound recording which does not form part of any cinematograph film does not affect author\'s right to claim equal share of royalty. Supreme Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>International Confederation of Societies of Authors and Composers Vs Aditya Pandey and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 9412-9413 of 2016 decided on 20 September 2016.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Prafulla C. Pant and Justice Ranjan Gogoi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Issue involved in the present appeals is that where lyric\r\nwritten by ‘X’ (lyricist) and music composed by ‘Y’ (musician)\r\nare used to make sound recording by ‘Z’ (Sound Recording\r\nCompany), whether ‘A’ (Event Management Company/Event\r\nOrganizer) is required to seek licence from ‘X’ and ‘Y’ for\r\nsubsequently playing the song in public even after ‘A’ had paid\r\nfor the broadcasting of the song to ‘Z’ (Sound Recording\r\nCompany) ?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Indian Performing Rights Society Limited (For short\r\n“IPRS”) (appellant before us in two of the three appeals) is the\r\nSociety of authors of literary work, and composers of musical\r\nwork, is the plaintiff/appellant. And International <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Confederation of Societies, is a non-governmental\r\norganization, an association of copyright societies, registered\r\nin France, which was not the party before the trial court, is the\r\nappellant in one of the above three appeals. Respondent No.2\r\n– Synergy Media Entertainment is the Event Management\r\nCompany of which Respondent No.1 is the Senior Manager\r\n(Finance).</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n6. The case of the plaintiff/appellant is that authors of\r\nliterary work and composers of musical work are the first\r\nowners of copyright in lyric and musical work respectively\r\nunder the Copyright Act, 1957. As such they have the right to\r\nget restrained Respondent Nos. 1 and 2 from infringing their\r\ncopyright, and licence given to sound recording company does\r\nnot affect the rights of lyricist or the musician. Reference has\r\nbeen made to the definition of expression “communication to\r\nthe public” defined under Section 2(ff) and that of\r\n‘performance’ defined in Section 2(q) of the Act. Further,\r\nreference has been made to the amendment introduced in\r\n1994 in the Copyright Act, 1957 and it is pleaded that the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">right created under Section 14(a)(iv) cannot be read in\r\nderogation of right created under Section 14(a)(iii) of the Act.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. The grievance of the International Confederation Society\r\n(IFS)/3rd party appellant is that the petitioner is aggrieved due\r\nto the findings and alleged legal infirmities in the impugned\r\norder as it has an immediate and direct impact on its\r\nmembers and the creative community for their interest (which\r\nthe petitioner represents), stands to suffer loss and injury as\r\nthe impugned judgment deprives them of their exclusive right\r\nto collect royalty in cases of communication of sound\r\nrecordings to the public.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8. On behalf of the appellants, it is further argued that the\r\nerroneous finding in the impugned judgment denies the\r\nmembers of the appellants the right recognized under various\r\ninternational conventions to which India is a party, which they\r\nhold under copyright law. It is further submitted that the\r\nimpugned judgment creates discord between the manner of\r\nexploitation and treatment of same works, in two different\r\ncountries, contrary to what the International Conventions and\r\nTreaties seek to achieve. It is contended that the erroneous </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">interpretation of law in the impugned judgment stands in\r\ndirect conflict with India’s obligations under the Berne\r\nConvention for the Protection of Literary and Artistic Works\r\n(Paris Act, 1971) and the agreement on Trade Related Aspects\r\nof Intellectual Property Rights Agreement, 1994 (TRIPS\r\nAgreement), to which India has acceded. It thus places India\r\nout of step with international copyright norms and practice.\r\nAlso, it is contended that the impugned judgment places the\r\nreciprocal agreements between IPRS and other collecting\r\nsocieties under considerable stress as it makes impossible for\r\nthe Indian Performing Right Society Limited to fulfill its\r\ncontractual obligations under the reciprocal arrangements,\r\nthus affecting the rights of millions of songwriters, composers\r\nand publishers.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. On the other hand, on behalf of the respondent, it is\r\npointed out that with the amendment made in the Copyright\r\nAct, 1957, in the year 2012, the producer of sound recording\r\nhas an independent copyright of his work. Relying on the law\r\nlaid down by this Court in Indian Performing Right Society\r\nLtd. v. Eastern Indian Motion Pictures Association and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">others , it is contended that once the author of a lyric or a\r\nmusical work parts with a portion of his copyright, by\r\nauthorizing a film producer, or producer of sound recording in\r\nrespect of his work, a right exists with the latter to exhibit his\r\nwork to the public. Also, it is pleaded that the appeals filed by\r\nSocieties, not registered in India, on behalf of the lyricists and\r\nmusicians, under Section 33 of the Act, are not maintainable.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. Before further discussion, we think it just and proper to\r\nreproduce the relevant provisions of The Copyright Act, 1957\r\nto understand the meaning of various words and expressions\r\nrelevant for the purposes of this case and to appreciate the\r\nrights of the parties </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">. To appreciate the copyrights of author of literary work on\r\none hand, and that of the producer of sound recording on the\r\nother, it is necessary to refer to the meaning of “author”, given\r\nin clause (d) of Section 2 of the Act.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. At this stage, it is necessary to understand distinction\r\nbetween assignment of a copyright of a work and licence to\r\nuse the work. In the assignment, normally, ownership of the\r\ncopyright of the work is transferred but in the case of licence\r\nanother person is allowed to use the work by the author.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. A conjoint reading of various provisions of the Act leaves\r\nno doubt that though each of the seven sub-clauses of clause <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(a) of Section 14 relating to literary, dramatic or musical work,\r\nare independent of one another, but reading these sub-clauses\r\nindependently cannot be interpreted to mean that the right of\r\nproducer of sound recording, who also comes under definition\r\nof author under Section 2(d)(v), and has a right to\r\ncommunicate his work to the public under Section 14(e)(iii) of\r\nthe Act is lost. It is nobody’s case that the\r\ndefendant/respondents had stolen the lyric or that sound\r\nrecording is made without licence from the lyricist or\r\nmusician. Argument advanced on behalf of the appellants\r\nthat the permission granted to defendant was sans the right to\r\ncommunicate the sound recording to the public, cannot be\r\naccepted as there appears no such term and condition\r\nbetween the parties depriving the defendant from\r\ncommunicating his work of making song to the public. As far\r\nas the International Conventions and Treaties are concerned,\r\nthe law has been amended by Act 27 of 2012 w.e.f.\r\n21.06.2012. In the present case the suit was filed in 2006,\r\nand the law as it existed has to be applied, for the period prior\r\nto 21.06.2012.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. In view of the above settled principles of law, and for the\r\nreasons discussed by us, we are unable to find any error in\r\nthe impugned order passed by the High Court in a suit filed in\r\n2006. However, we would like to clarify, that with effect from\r\n21.06.2012, in view of sub-section (10) of Section 19, the\r\nassignment of the copyright in the work to make sound\r\nrecording which does not form part of any cinematograph film,\r\nshall not affect the right of the author of the work to claim an\r\nequal share of royalties or/and consideration payable for\r\nutilization of such work in any form by the\r\nplaintiff/respondent.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. Therefore, all the appeals stand disposed of with the\r\nobservations as above. No order as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f80d3bc525323248af0d5334b06b3b6c.jpeg', '4babbee2bb34476a6db60a8de109abf1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-22', 1, '', '', '2022-06-16 20:54:37', '2022-06-22 10:16:32'),
(1848, 'xTO0kdDKpppMck7qD185NS4Eu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'To constitute offence under the SC /ST (Prevention of Atrocities) Act, hurling of abuse must be in in a public place or in a place of public view. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sri Ritesh Pais Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 3597 of 2022 decided on 10 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is before this Court calling in question the proceedings in SPL.C.No.5023/2021 pending before the V Additional District & Sessions Judge, DK, Mangalore sitting at Puttur arising out of Crime No.72/2020 of Puttur Town Police Station registered for the offences punishable under Sections 504, 323, 506 of the IPC and Sections 3(1)(r), 3(1)(s) and 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (hereinafter referred to as \"the Act\" for short).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Sans details, facts in brief germane for consideration of the lis are as follows: Facts as projected by the prosecution are that on 2.10.2020 at around 10.30 a.m. when the complainant was working in a newly constructed building belonging to CW-7 at Yelmudi, Puttur, Puttur Taluk accused/petitioner goes there and asks the complainant to stop the work for which the complainant appears to have replied that he is working on the instructions of the owner of the building. It is further alleged that in front of witnesses CW-2 to CW-6 the accused/petitioner addressed the complainant taking the name of his caste, threatened his life and obstructed construction activity of CW-7. Based upon this incident, a complaint is registered by the 2nd respondent/ complainant against the petitioner alleging that he has hurled abuses taking the name of his caste which would become offence punishable under Section 3(1)(r) and 3(1)(s) of the Act. The police after investigation have filed a charge sheet. Filing of the charge sheet against the petitioner for offences punishable under the aforementioned provisions of the Act and Sections 504, 506 and 323 of the IPC in Special Case No.5023 of 2021 is what drives the petitioner to this Court in the subject petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Learned Senior Counsel would contend with vehemence that the complainant is an employee of CW-7 – Sri Jayakumar R.Nair against whom the petitioner has instituted civil suit and an order of injunction is operating against him and, therefore, he has set up his employee to settle his personal scores or wreck vengeance for the petitioner’s act of instituting the suit. He would further contend that hurling of abuses is neither in a public place nor in a place of public view; it is admittedly hurled at the basement of the building where no passerby was present. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. On the other hand, the learned counsel representing 2nd respondent and the State in unison would contend that the abuses have admittedly been hurled in front of CWs-2 to 6, the witnesses and the said act is also seen by other public.  It is a matter of trial for the petitioner to come out clean as the complaint narrates such circumstances and as such a trial would become necessary.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. To consider the submissions made by the respective learned counsel, a little walk in time is necessary. The petitioner and one Sri Jayakumar R.Nair were in a squabble with regard to certain property. The petitioner is plaintiff No.2 in a suit instituted in O.S.No.179 of 2020 in which 8th defendant is Sri Jayakumar R.Nair. The said suit is instituted by the petitioner seeking perpetual injunction against the defendants. The said suit is pending consideration with the order of injunction granted on 11-08-2020. After the grant of injunction the first informant/CW-1, the complainant registers a complainant on 2.10.2020 alleging that the petitioner had hurled abuses taking the name of his caste at the basement of the building where he was working and also intimidated all the workers.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">8. What is germane to be noticed is who is the complainant. The complainant/CW-1 is the employee of defendant No.8 in the suit Sri Jayakumjar R.Nair against whom an order of injunction is operating in a suit filed by the petitioner. This fact of the complainant being the employee of Sri Jayakumjar R.Nair is not in dispute as the complaint itself narrates this fact. </font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">In terms of Sections 3(1)(r) & 3(1)(s) what is necessary to drive home an offence that would become punishable under these Sections is that hurling of abuses must be either in a public place or a place of public view. The allegation against the petitioner is that he has hurled abuses on the complainant at the basement of the building and the witnesses to the said incident are CWs-2 to 6. The complainant is CW-1. It is again not in dispute that all the witnesses including the complainant are co-employees of Sri Jayakumjar R.Nair or fiends of CW-1/complainant. This is also an admitted fact.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>If the complaint, summary of charge sheet and the statement of witnesses, CW-2 in particular, are read in tandem, it would unmistakably reveal that hurling of abuses has happened at the basement where CWs-1 to 6 were working and in the basement, it is not indicated, any other person was even present. Two factors would emerge from a reading of the aforesaid statements – one being, the basement of the building was not a place of public view and two, only persons who claim to be present were the complainant/CW1 and other employees of Sri Jayakumjar R.Nair or friends of CW-1. Therefore, hurling of abuses is clearly not in a place of public view or a public place for the aforesaid provisions of the Act to be get attracted in the case at hand. Reference being made to the judgment of the Apex Court in the case of HITESH VERMA v. STATE OF UTTARAKHAND in the circumstances becomes apposite. The Apex Court has interpreted the very provision that is now invoked against the petitioner and held what would it mean to be a place of public view or a public place.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>The Apex Court, in the afore-quoted judgment, has also considered the squabble between the parties which could have led to registration of the crime. The facts therein are akin to the facts in the case at hand.  Sri Jayakumar R.Nair wanting to shoot the shoulder of his employee – CW-1 for the act of the petitioner having registered a suit against Sri Jayakumar R.Nair and also secured an interim order of injunction leading to registration of the crime cannot be brushed aside as it demonstrates a clear link in the chain of events. Therefore, the registration of crime itself suffers from want of bona fides. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">9.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">The aforementioned is the analysis of invocation of the provisions of the Act. Offences under the IPC are also invoked in the case at hand which would become punishable under Sections 504, 506 and 323 of the IPC. For an offence punishable under Section 323 IPC there should be hurt caused in the squabble. A perusal at the records would reveal that the wound certificate shows a simple scratch mark on the fore-arm and another scratch mark on the chest. Bleeding is not what is indicated. Therefore, simple scratch marks cannot become offence under Section 323 of the IPC. Insofar as Sections 504 and 506 of the IPC are concerned, they are clearly an offshoot of the allegations made under the Act. Therefore, none of the offences under Sections 3(1)(r), 3(1)(s) or Section 3(2)(va) can be driven home in the case at hand as they are all shrouded with the act of 8th defendant seeking to wreck vengeance against the petitioner for having registered the suit. Therefore, none of the offences alleged are sustainable in the peculiar facts of the case at hand.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. Insofar as the judgment relied on by the State in the case of State of Uttar Pradesh v. Naresh and others reported in (2011)4 SCC 324 to contend merely because the witnesses are the friends of the complainant, it would not vitiate the proceedings. The said judgment is distinguishable on the facts of the case at hand in juxtaposition to the facts obtaining in the said case, without much ado, as the case was concerning examination of witnesses in a trial for murder under Section 302 of the IPC and all the witnesses though were friends, had corroboration with other material. In the case at hand, neither the complaint nor the statements nor the finding in the charge sheet would be enough to drive home the offence so alleged under the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. In the light of the afore-quoted facts, when the basic ingredients of the offence are missing, then permitting such proceedings to continue and to compel the petitioner to face the rigmarole of criminal trial would be totally unjustified, leading to abuse of the process of law. In the teeth of the aforesaid facts and analysis, permitting further proceedings to continue would degenerate into harassment and result in miscarriage of justice.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>The Criminal Petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd7f6ecd9c6aa4a2929659e438613df41.jpeg', 'f629ddbd34365f263df51261bf874be6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-23', 1, '', '', '2022-06-22 16:56:20', '2022-06-23 13:54:59'),
(1833, 'Z7buXjcLt1C7ErOTBxZLZIs8l', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Principles of estoppel and acquiescence will not prevail over statutory rules. Supreme Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Krishna Rai (Dead) through LRS Vs Banaras Hindu University and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4578-4580 of 2022 decided on 16 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dinesh Maheshwari and Justice Vikram Nath.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. In these three Civil Appeals, this Court has been called upon to decide whether principle of estoppel and acquiescence will prevail over statutory service rules prescribing the procedure for promotion of Class­IV employees to Class­III working in the Banaras Hindu University , Varanasi, a Central University. The learned Single Judge was of the view that the statutory rules would prevail and must be strictly adhered to, whereas, the Division Bench, although, agreeing with the reasoning of the learned Single Judge that the procedure prescribed under the rules was violated, still proceeded to set aside the judgment of the learned Single Judge applying the principle of estoppel and acquiescence over and above the eligibility conditions having statutory force laid down by the statutory rules.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>31. Further in the case of Tata Chemicals Ltd. Vs. Commissioner of Customs (preventive), Jamnagar ,it has been laid down that there can be no estoppel against law. If the law requires something to be done in a particular manner, then it must be done in that manner, and if it is not done in that manner, then it would have no existence in the eye of the law. Paragraph 18 of the said judgment is reproduced below:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“18. The Tribunal’s judgment has proceeded on the basis that even though the samples were drawn contrary to law, the appellants would  be estopped because their representative was present when the samples were drawn and they did not object immediately. This is a completely perverse finding both on fact and law. On fact, it has been more than amply proved that no representative of the appellant was, in fact, present at the time the Customs Inspector took the samples. Shri K.M. Jani who was allegedly present not only stated that he did not represent the Clearing Agent of the appellants in that he was not their employee but also stated that he was not present when the samples were taken. In fact, therefore, there was no representative of the appellants when the samples were taken. In law equally the Tribunal ought to have realized that there can be no estoppel against law. If the law requires that something be done in a particular manner, it must be  done in that manner, and if not done in that manner has no existence in the eye of law at all. The Customs Authorities are not absolved from following the law depending upon the acts of a particular assessee. Something that is illegal cannot convert itself into something legal by the act of a third person.”</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1ae543f74bcaba232c4cf27e1555b66f.jpeg', '552c9c3a3f2025d07dd2ef1c03dd45bc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-18', 1, '', '', '2022-06-17 17:19:55', '2022-06-18 12:40:52');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1834, 't0zYH1nuJ96OYnefOsrMF7UHz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Territorial jurisdiction to try criminal cases. A completed act concerning one offence in one place cannot be  connected with other acts leading to other offences in a different place unless the first offence is a continuing one.  Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>MS. P xxx Vs State of Uttarakhand and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 903 of 2022 decided on 16 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dinesh Maheshwari and Justice Vikram Nath.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. This appeal is directed against the order dated 25.09.2018 as passed by the High Court of Uttarakhand at Nainital in Criminal Revision Petition No. 42 of 2018 whereby, the High Court declined to interfere with the order dated 28.10.2017, as passed by the Sessions Judge, Chamoli in Sessions Trial No. 8 of 2017, discharging the accused-respondent No. 2 of the offence under Section 376 of the Indian Penal Code, 1860 on the ground of lack of territorial jurisdiction with liberty to the prosecution to proceed against the accused in the appropriate Court while also directing <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">transfer of the case in relation to the other offences under Sections 504 and 506 IPC to the Court of Judicial Magistrate First Class, Gairsain, District Chamoli. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. The order aforesaid was challenged by the appellant in the said Criminal Revision Petition No. 42 of 2018 before the High Court. Unfortunately, the High Court, in its impugned order dated 25.09.2018, chose to decide the matter in the absence of revisionist (i.e., the present appellant) and, without even taking into consideration the nature of order passed by the Sessions Judge, simply observed, rather rhetorically, that in case of acquittal, even if two views were possible, the Appellate Court would not reverse the finding of acquittal unless the finding was perverse; and that there was no perversity, illegality and jurisdictional error in the order impugned. Accordingly, the revision petition was dismissed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. As noticed, in the impugned order dated 28.10.2017, the learned Sessions Judge, while discharging the accused-respondent No. 2 of the offence under Section 376 IPC on the ground of lack of territorial jurisdiction, had transferred the matter to the Court of Judicial Magistrate First Class, Gairsain, District Chamoli for trial of the respondent No. 2 in relation to the remaining offences under Sections 504 and 506 IPC. The said matter was taken up for trial by the learned Judicial Magistrate in Criminal Case No. 137 of 2017. In this trial, the appellant and other witnesses were indeed examined by the prosecution and ultimately, the case was decided by the learned Judicial Magistrate by his judgment and order dated 01.05.2019. A perusal of the said judgment and order dated 01.05.2019 makes out that the learned Judicial Magistrate, after appreciation of evidence, found that the prosecution witnesses had failed to establish the fact that the accused-respondent No. 2 hurled abuses or gave death threats to the appellant and her family. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Having taken note of the material facts and relevant orders\r\npertaining to this case, we may now summarise the respective\r\ncontentions, where the submission made on behalf of the appellant in challenge to the order dated 25.09.2018, as passed by the High Court as\r\nalso the order dated 28.10.2017, as passed by the Sessions Judge have\r\nbeen duly supported in the submissions made on behalf of the\r\nrespondent No. 1-State; and duly countered on behalf of the accusedrespondent No. 2.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11.2. Learned counsel for the appellant has further argued that the trial\r\nin Case No. 137 of 2017 for offences under Sections 504 and 506 IPC,\r\nwhere the accused-respondent No. 2 was acquitted by the order dated\r\n01.05.2019, deserves to be quashed because this trial has taken place\r\nbefore the Judicial Magistrate only because of segregation of the said\r\noffences with the offence under Section 376 IPC, which is triable only by\r\nthe Court of Sessions. The submission has been that, by setting aside the\r\norder of segregation, the entire matter deserves to be put to trial for the offence under Section 376 IPC along with the offences under Sections\r\n504 and 506 IPC. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. While supporting the submissions made on behalf of the\r\nappellant, learned counsel for the respondent No. 1-State has submitted\r\nthat the Sessions Judge, Chamoli was indeed competent to try the\r\naccused-respondent No.2 for the offence under Section 376 IPC along\r\nwith the offences under Sections 504 and 506 IPC, for the said offences\r\nformed the series of same transaction. Learned counsel for the State has\r\nparticularly referred to Sections 178(d), 179, 180, 184 read with Sections\r\n220(1) and 220(3) CrPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Per contra, learned counsel for the accused-respondent No. 2 has\r\nargued that in terms of Section 218 CrPC, the learned Sessions Judge,\r\nChamoli has rightly ordered for separation of charge in relation to Section\r\n376 CrPC and has rightly not proceeded with the same for the alleged\r\noccurrence having taken place at Delhi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. We have given anxious consideration to the rival submissions and\r\nhave examined the record with reference to the law applicable.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19.2. The provisions of Section 178 CrPC essentially deal with a\r\nsingular offence which is either partly committed in one area and partly in\r\nanother; or continues to be committed in more local areas than one; or it\r\nconsists of several acts done in different local areas; or when it is\r\nuncertain of which of the several areas it has been committed. This\r\nprovision primarily operates in relation to one and the same offence,\r\nwhich gets bifurcated into, or is spread over, different local areas because\r\nof continuing acts or different acts, one after another, like the offences of\r\nSection 498-A or Section 406 IPC in the referred cases. Then, in the\r\neventuality of an act being an offence for anything which has been done\r\nand consequence that has ensued, as per Section 179 CrPC, the offence <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">could be tried by a Court within whose jurisdiction the act has been done\r\nor where the consequence of such an act has ensued. Further, as per\r\nSection 180 CrPC, when an act is an offence because of its relation to\r\nany other act which is also an offence, the former could be tried by a\r\nCourt within whose local jurisdiction either of the act is done. These\r\nprovisions provide exception to the normal rule envisaged by Section 177\r\nCrPC that every offence shall ordinarily be inquired into and tried by a\r\nCourt within whose local jurisdiction it was committed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. The fact situation of the present case and the complaint as made\r\nby the appellant is of the allegations of different offences, of different\r\nnature and at different places of occurrence, though said to have been\r\ncommitted by the same person, i.e., respondent No. 2 and against the\r\nsame person, i.e., the appellant and having their genesis in the proposed\r\nmatrimonial alliance, which did not materialise. The allegations, obviously,\r\nconsist of offences of distinct nature inasmuch as one set of allegations is\r\nof the offence of rape at Delhi (Section 376 IPC) and the other set of\r\nallegations is of hurling abuses and extending threat on phone calls\r\nreceived by the appellant at her village in District Chamoli (Sections 504\r\nand 506 IPC). These being different offences, the question to be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">examined with reference to Section 220 CrPC read with Section 184\r\nCrPC is as to whether the alleged offences are such that the respondent\r\nNo. 2 could be charged with and tried at one trial for each of them. In\r\nother words, as noticed, the question in this case is as to whether the acts\r\ncomplained of could be said to be ‘one series of acts so connected\r\ntogether as to form the same transaction’ for the purpose of trial together.\r\nFor dealing with the question in reference to the peculiar facts of the\r\npresent case, the principles stated in a few other decisions may be\r\nusefully noticed.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20.1. In the case of Mohan Baitha and Ors. v. State of Bihar and\r\nAnr.: (2001) 4 SCC 350, this Court observed that the expression ‘same\r\ntransaction’, from its very nature, was incapable of an exact definition and\r\nit was not possible to enunciate any comprehensive formula of universal\r\napplication for the purpose of determining whether two or more acts\r\nconstitute the same transaction. However, this Court indicated a few\r\nfactors, which would be relevant to decide this question in a given set of\r\nfacts. In that case, on the complaint of the father of deceased, FIR was\r\nlodged for offences under Sections 304-B/34/406 IPC at Police Station\r\nNath Nagar in the District of Bhagalpur, Bihar. Police report was filed on\r\n03.04.1999 after completion of investigation. However, the accused\r\napproached the High Court, seeking direction to the Magistrate not to\r\nproceed with the matter on the grounds of lack of territorial jurisdiction, as\r\nthe offence under Section 304-B IPC had taken place at Jahanaganj in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the State of Uttar Pradesh and the Court at Bhagalpur was lacking in\r\nterritorial jurisdiction to try the same. The High Court dismissed the\r\npetition of the accused. In further appeal, this Court also observed that\r\nthe acts formed parts of the same transaction, which came under the\r\nambit of Section 220 CrPC; and directed the Magistrate at Bhagalpur to\r\nproceed with the matter expeditiously.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20.2. The said decision in Mohan Baitha (supra) has further been\r\nreferred to and relied upon by this Court in the case of Anju Chaudhary\r\nv. State of Uttar Pradesh and Anr.: (2013) 6 SCC 384 while indicating the tests to be applied for determining the question as to whether two or\r\nmore acts constitute the same transaction </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20.3. Thus, in the aforesaid decisions in Mohan Baitha and Anju\r\nChaudhary, this Court has underscored that the expression ‘same\r\ntransaction’ seems to be having vague underpinnings; and this Court has\r\nalso pointed out that no formula of universal application could be\r\nenunciated for determining as to whether two or more acts constitute the same transaction. However, even while pointing out that the question as\r\nto whether a series of acts are so connected together as to form the same\r\ntransaction is purely a question of fact, this Court has indicated the core\r\nelements like proximity of time, unity or proximity of place, continuity of\r\naction and community of purpose or design, which are of relevant\r\nconsiderations and when these factors are applied to common sense and\r\nordinary use of language, the vexed question of ‘same transaction’ could\r\nbe reasonably determined.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. Keeping the aforesaid principles in view, we may examine as to\r\nwhether the series of acts as alleged in the present case could be said to\r\nbe so connected together as to form the same transaction. This is a pure\r\nquestion of fact and has been decided by the learned Sessions Judge\r\nagainst the appellant essentially on the considerations that the place of\r\noccurrence of alleged offence of rape was at Delhi; the offence of rape\r\nwas not a continuing offence; and alleged threats given by the respondent\r\nNo. 2 to the appellant on phone were not constituting such offences as to\r\nform a series of acts with the first-mentioned offence of rape. We have no\r\nhesitation in endorsing the views of the learned Sessions Judge on the\r\nfacts of the present case.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. In the present case, according to the appellant, her engagement\r\nwith the respondent No. 2 took place on 13.11.2015 at village Dangidhar,\r\nTehsil Gairsain, District Chamoli; later on, the accused-respondent No. 2\r\nasked her to come to Delhi for purchasing and she did so, albeit reluctantly and on the alleged threat of the accused-respondent No. 2 to\r\nbreak the engagement; from 21.02.2016 to 24.02.2016, the accusedrespondent No. 2 allegedly had had sexual intercourse with the appellant\r\nagainst her wishes and on the threat of dropping the matrimonial alliance;\r\nthe accused later on allegedly asked her to bring Rs. 25 lakhs for\r\nconstruction of house and he would marry only upon receiving the money;\r\nthe appellant’s mother filed a complaint at Police Station Gairsain where\r\nthe accused-respondent No. 2 allegedly filed an affidavit on 01.11.2016\r\nassuring to marry the appellant in the month of December, 2016;\r\nhowever, he did not marry the appellant and instead, hurled abuses and\r\nthreatened to kill her. As per the statement recorded by the appellant\r\nunder Section 164 CrPC, she had also visited Delhi on 23.03.2016 on the\r\nasking of the accused-respondent No.2 and at that time, the accused\r\nmade physical relationship twice with her consent, which was given on\r\nthe pretext of marriage. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22.1. A close look at the alleged events/acts bring to fore the basic\r\nfeature that on 13.11.2015, the appellant and the respondent No. 2 were\r\nengaged for matrimonial alliance at their village Dangidhar, Tehsil\r\nGairsain, District Chamoli but, the proposal of marriage did not\r\nmaterialise. However, the alleged acts of sexual relationship took place at\r\nDelhi in the months of February and March, 2016. The other alleged acts\r\nhad been of the respondent No. 2 hurling abuses and extending threats in\r\nor around the month of November, 2016, which the appellant received <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">over telephone at her village. The acts in question were neither proximate\r\nin time nor proximate in place; they were not of continuity either.\r\nSignificantly, while the appellant had alleged that she submitted to the\r\nsexual acts because of the threat by the respondent No.2 to snap the\r\nproposed alliance but it had not been her case that the respondent No. 2\r\nattempted to coerce her into the same physical relationship while hurling\r\nabuses or threatening to kill at the later part of time. Thus, it is difficult to\r\nfind continuity of actions and community of purpose or design in two\r\ndifferent acts leading to two different set of offences, i.e., one under\r\nSection 376 IPC and the other under Sections 504/506 IPC. Putting it\r\ndifferently, so far as the act leading to the offence of rape under Section\r\n376 IPC is concerned, even as per the allegations of the appellant, that\r\nparticular act was a completed one and the original design of subjecting\r\nthe appellant to physical relations was accomplished at Delhi in the\r\nmonths of February and March, 2016. As noticed, there is no allegation of\r\nsuch an activity having continued later or having taken place at Chamoli\r\nor even any threat having been extended to the appellant to again submit\r\nto such an activity. Viewed from this angle too, the completed act\r\nconcerning one offence (Section 376 IPC) could not have been\r\nconnected with the other acts leading to other offences.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">22.2. From whatever angle we examine the matter, in the given set of\r\nfacts, it is difficult to sew the alleged acts together so as to form the same\r\ntransaction. To put it in a simple idiom, the two alleged set of acts, one of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sexual exploitation, leading to the offence of rape (Section 376 IPC) and\r\nanother of hurling abuses and threats, leading to the offences of insult\r\nand intimidation (Sections 504/506 IPC), are just like chalk and cheese;\r\nthey cannot be connected together so as to form the same transaction on\r\nthe facts of this case.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. For what has been discussed hereinabove, the view as taken by\r\nthe learned Sessions Judge commends to us that on the facts of this\r\ncase, the offence under Section 376 IPC as allegedly committed at Delhi,\r\nbeing different and distinct than the other offences and being not of same\r\ntransaction, could not have been tried by the Courts at Chamoli.\r\nTherefore, the order passed by the learned Sessions Judge calls for no\r\ninterference. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24.1. It has been suggested on behalf of the respondent No. 1-State\r\nthat the segregation of charge of the offence under Section 376 IPC had\r\nbeen erroneous and because of this error, the matter went to trial before\r\nthe learned Judicial Magistrate for the offences under Sections 504 and 506 IPC though the entire matter ought to be tried in the Court of\r\nSessions. Section 461 CrPC has been referred to in that regard.\r\nAlthough, for what has been discussed and held hereinbefore, there had\r\nbeen no error in segregation of the charge of the offence under Section\r\n376 IPC, yet it need be stated that this line of submissions, questioning\r\nthe validity of the proceedings before the learned Judicial Magistrate,\r\nremains baseless and is rather misplaced.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24.1.1. So far as the offences under Sections 504 and 506 IPC are\r\nconcerned, it cannot be said that the said Judicial Magistrate was not\r\nempowered by law to try these offences. Rather, the offence under\r\nSection 504 IPC is triable by any Magistrate. In the present case, the\r\nalleged threat was to cause death which relates to Part II of Section 506\r\nIPC and is triable by a Judicial Magistrate of First Class. It is not the case\r\nthat the Magistrate concerned who had tried the matter was in any way\r\nlacking in power and authority to try the offences under Sections 504 and\r\n506 IPC. The validity and correctness of the order of segregation of the\r\ncharge under Section 376 IPC is a matter entirely different but until the\r\nsaid order was in operation, the matter had to go to the trial before the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">said Magistrate and he was bound to proceed with the same. Hence, this\r\ncontention on behalf of the respondent No. 1-State stands rejected.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24.3. In view of the provisions aforesaid, without further elaboration,\r\nsuffice it would be to observe that on the facts and in the circumstances\r\nof present case, even if respondent No. 2 is acquitted of charges under\r\nSections 504 and 506, he could be tried by the jurisdictional Sessions\r\nCourt in respect of alleged offence of rape under Section 376 IPC,\r\nbecause this offence could not have been tried by the Judicial Magistrate\r\nFirst Class. However, he cannot be sent to trial again for offences under\r\nSections 504 and 506 IPC in any event. We need not say any more in this\r\nregard.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. Upshot of the foregoing discussion is that on the facts and in the\r\ncircumstances of this case, the alleged offence under Section 376 IPC\r\nand the other offences under Sections 504 and 506 IPC do not fall within the ambit of ‘one series of acts so connected together as to form the\r\nsame transaction’ for the purpose of trial together in terms of Section 220\r\nCrPC. Thus, the learned Sessions Judge, Chamoli had rightly discharged\r\nthe accused-respondent No. 2 of the offence under Section 376 IPC for\r\nwant of territorial jurisdiction. </b></span></p>', '6b6340115f7d5c6ebe12fe3fd0c1aaec.jpeg', '185f97ac2feb545e85d4902ba1a54c0a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-18', 1, '', '', '2022-06-17 18:08:35', '2022-06-18 16:01:59'),
(1835, '8NSfcoD5y1nF1Z8EPFh1mNrOb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Parties to suit. If, for the adjudication of the “real controversy” between the parties on record, the presence of a third party is necessary, then he can be impleaded. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mr. Dhananjay Rathi Vs Shree Vasu Steels Private Limited and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CS (COMM) 267 of 2022 decided on 15 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Jyoti Singh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. A short expose of facts required for the purpose of deciding the\r\npresent application is that in and around the year 1942, three male members </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">f Rathi Family namely, Mr. G.D. Rathi, Mr. K.L. Rathi and Mr. H.K. Rathi\r\nstarted a company called Rathi Steel Rolling Mills (‘RSRM’) under the\r\ntrademark RATHI, which was adopted as a trading name. In the year 1968,\r\nRSRM entered into a technical collaboration with M/s. TOR Istag Steel\r\nCorporation for manufacturing of TOR Steel Bars under the registered\r\ntrademark RATHI. In 1969, RSRM split into two different groups and\r\ntwo companies were set up, namely, M/s. G.D. Rathi Steels Limited and\r\nM/s. K.L. Rathi Steels Limited.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3. On 22.10.1975, K.L. Rathi Steels Limited applied for and obtained\r\nregistration for the trademark RATHI bearing registration No. 309435 in\r\nclass 06 for certain items, while G.D. Rathi Steels Limited applied on\r\n16.10.1980 for registration of the same mark in class 06. On 01.12.1982, the\r\napplication was amended by limiting the registration to certain States and\r\nthereafter, the registration was granted for the mark RATHI bearing\r\nregistration No. 367635 in class 06.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. Rathi Foundation (hereinafter referred to as the ‘Foundation’) was\r\nformed pursuant to a Memorandum of Understanding dated 24.06.1995\r\n(hereinafter referred to as ‘MoU-1’) executed by three different groups of\r\nthe Rathi Family, named therein. The Trust named Rathi Foundation was\r\ncreated and registered under the Indian Trusts Act, 1882 and the trademark\r\nRATHI along with the goodwill was assigned to the ‘Foundation’. To bring\r\non record the ‘Foundation’ as the subsequent proprietor of the trademark\r\nRATHI, an appropriate form under TM-24 was filed before the Trade Marks\r\nRegistry on 15.07.1995 and the same was accepted vide order dated\r\n07.03.1996.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. MoU-1 incorporated inter alia provisions specifying the number of\r\nlicenses to be granted to each family group as well as regulating/restricting\r\nthe use and/or assignment of the licenses, with respect to the trademark\r\nRATHI.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. On 26.06.1995, another Memorandum of Understanding (hereinafter\r\nreferred to as ‘MoU-2’) was entered into between few other members of the\r\nRathi Family. In furtherance of MoU-2, a Trust was created by the name of\r\nRathi Research Centre which was duly registered under the Indian Trusts\r\nAct, 1882 vide Trust Deed dated 18.10.1995. In the said Trust, there are six\r\nlifetime Trustees, divided into two groups. The trademark RATHI was\r\nassigned to the said Trust along with the goodwill. The terms of the MoU-2\r\nand the second Trust Deed created in furtherance thereto, were more or less,\r\nidentical to MoU-1 and the Trust Deed of the ‘Foundation’.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. Present suit was filed by one of the lifetime Trustees of the\r\n‘Foundation’, upon learning through market surveys that the Defendants\r\nwere using the mark RATHI PRAGATI alleging infringement, passing off\r\netc. The primal ground raised in the suit is that by virtue of the restrictive\r\ncovenants in the MoUs, only the Members/Trustees of the ‘Foundation’ and\r\nthe ‘Centre’ were licensed to use the trademark RATHI and in the manner\r\nprovided in the respective MoUs and thus the Defendants, not being a part\r\nof the Rathi Family or Members/Trustees of the Trusts, were using the mark\r\nunauthorizedly. An injunction was sought against the Defendants from using\r\nthe impugned mark, alleging infringement and passing off. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. On being served, Defendants No.1 to 3 who are stated to be\r\nassignees/licensees, filed an application under Order 39 Rule 4 CPC being\r\nI.A. 7588/2022, seeking vacation of the injunction order on manifold\r\ngrounds. Essentially and in a nutshell, the case set up by the Defendants is\r\nthat pursuant to and in furtherance of MoU-2 dated 26.06.1995, the ‘Centre’\r\nwas constituted as a Trust with six lifetime Trustees, divided into two\r\ngroups. MoU-2 regulated the manner of granting licenses for use of the\r\ntrademark RATHI. ‘Centre’ has a separate registration for the said\r\ntrademark and is entitled to its exclusive use. There is no family settlement\r\nor an overarching agreement between the ‘Centre’ and the ‘Foundation’\r\nauthorising or permitting the members of the ‘Foundation’ to regulate the\r\nuse and licensing of the mark RATHI by the ‘Centre’. A new Trust Deed\r\ndated 06.11.2020 has been executed by the ‘Centre’, incorporating Clause\r\n(n) which permits grant of license for use of the trademark RATHI to other\r\ncompanies/firms/persons, not owned by the Members/Trustees whose names\r\nappear in the MoU-2 dated 26.06.1995, provided the grant is by a\r\nunanimous Resolution, in writing, by all six Trustees of the ‘Centre’ and\r\nsignatories of the MoU-2. Pursuant thereto, Defendants have been assigned\r\nthe user licenses to lawfully use the trademark RATHI for specified periods\r\nmentioned in the Agreements and limited to the products provided therein\r\nand subject to geographical restrictions. Thus, the use of the mark by the\r\nDefendants is neither illegal nor unauthorized as alleged and does not\r\nconstitute infringement. It is prayed that the injunction order be vacated.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Significantly, one of the preliminary objections taken by the\r\nDefendants is that the Plaintiff has not impleaded the ‘Centre’ as a party to\r\nthe present suit and has concealed the execution of the new Trust Deed. It is\r\naverred that Order 1 Rule 9 CPC provides for joinder of necessary parties to\r\nthe suit. Since the Defendants are using the trademark RATHI under valid\r\nTrademark Agreements executed between the ‘Centre’ and them, ‘Centre’ is\r\na necessary party and the suit ought to be dismissed for non-joinder.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. It is further averred in the application that due to disclosure of these\r\nfacts by the Defendants, which were not in the knowledge of the Plaintiff at\r\nthe time of filing the suit, it is imperative that the Members/Trustees of the\r\n‘Centre’ are made parties to the present suit. It is further averred that the\r\nissue of validity of Clauses of the new Trust Deed dated 06.11.2020,\r\nincluding Clause 3(n), as well as the validity of the Trademark Assignment\r\nAgreements, entered into between the ‘Centre’ and the Defendants, cannot\r\nbe settled without making Members/Trustees of the ‘Centre’ as parties to the\r\nsuit. It is pleaded that in order to effectively adjudicate upon and settle all\r\nquestions involved in the present suit, Members/Trustees of the ‘Centre’ are\r\n‘necessary parties’ and the Members of the ‘Centre’ as referred to in para 9\r\nof the application be impleaded, in the interest of justice.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. Plain reading of Order 1 Rule 10 CPC indicates that the Court has the\r\npower at any stage of the proceeding to implead a party who ought to have\r\nbeen joined but has not been so joined and in whose absence the subject\r\nmatter of the suit cannot be decided effectively and completely.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. The case of the Defendants is predicated on the alleged rights that\r\nflow out of the Assignment Agreements executed by the ‘Centre’, by virtue\r\nof powers conferred by Clauses incorporated in the new Trust Deed dated <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">06.11.2020. Defendants, thus, claim to be authorized users of the trademark\r\nRATHI under valid licenses granted through the Assignment Deeds for the\r\nlimited periods specified therein and subject to geographical limitations.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>17. Per Contra, the case of the Plaintiff for impleading the ‘Centre’ is that\r\non account of the restrictive and prohibitory covenants in the MoUs, it was\r\nlegally impermissible for the ‘Centre’ to have licensed the use of the\r\ntrademark RATHI to the Defendants, who are not the Members/Trustees of\r\nthe ‘Centre’ and in view of the alleged rights claimed by the Defendants,\r\narising out of the Assignment Agreements executed by the ‘Centre’, the\r\nquestions involved in the present suit cannot be effectively adjudicated upon\r\nand settled in the absence of the ‘Centre’ being a party.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>18. Examined on the touchstone of the provisions of Order 1 Rule 10\r\nCPC and the principles enunciated in several judgments on the subject and,\r\nmore particularly, taking into account the respective stands of the Plaintiff\r\nand the Defendants herein, I am of the considered view that the ‘Centre’ is a\r\nnecessary party for effective and complete adjudication of the disputes and\r\nthe issues arising in the present suit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. Accordingly, the application is allowed. Members/Trustees of the\r\n‘Centre’, as detailed in para 9 of the application, are hereby impleaded as\r\nDefendants No. 13 to 18 in the suit.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. Application stands disposed of</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '466ff3d863781889467f969b3d1a1e33.jpeg', '9396c6db3f386a1f481f1d31b36ea509.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-20', 1, '', '', '2022-06-17 18:21:17', '2022-06-20 13:57:23'),
(1837, 'fP9GaXfCNeojVJD6dGwdvGhAN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Capital punishment which is not executed within a reasonable time, loses its importance as a deterrence. Government must reconsider the provision of death penalty as a mode of punishment as deterrence. Madhya Pradesh High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ankit Kamal Singh Vijayvargiya Vs The State of Madya Pradesh Station.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 3665 of 2020 decided on 15 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Subodhi Abhyankar and Justice Satyendra Kumar Singh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>On the aforementioned discussion, this court is of the considered view that with the parameters of cruelty set so high nowadays for an offence to fall under the ambit of rarest of rare, as has also been recorded by the Supreme Court in the case of Mohammad Firoz (supra)  it is, if not impossible, but is very difficult for any person to get the death penalty no matter how diabolic his actions are. It is also seen that even when the death penalty of an accused is affirmed by the Apex Court,, it would still not be acted upon leading to further suffering by the victims of the heinous crimes. The kith and kin of such victims who are also the victims, spent their lifetime in the hope that they would get some solace, some justice but all their hopes are crushed under the procedural system. This court is of the view that \'capital punishment\' which is not awarded/executed within a reasonable time, loses its importance as a deterrence, as people have a very short memory and such offences usually get into oblivion, waiting for the next one to happen. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26. In such circumstances, this court is of the considered opinion that the Government must reconsider the provision of death penalty as a mode of punishment as deterrence so that at least the victims of such crimes would get on with their lives, accepting their fate and would be saved from nurturing a false hope for decades altogether. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>27. Be that as it may, considering the totality of the evidence brought on record, viz., the death sentence was awarded to the appellant on the same day on which he was found guilty, depriving the appellant of his valuable right to bring to the notice of the court any mitigating circumstances in his favour, the injuries suffered by the victim, and the fact that the appellant who himself is a father of a minor daughter, is aged 30 years with no criminal record, chances of his rehabilitation cannot be ruled out, as also the various decisions rendered by the Supreme Court dealing with the subject mannter, while affirming the conviction of the appellant as recorded by the Trial Court, we find it fit to impose a sentence of Twenty Years instead of Death Penalty on the appellant. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>28. The present CRRFC (Criminal Reference Capital) no. 02 of 2020 is decided accordingly, and the Criminal Appeal No.3665 of 2020 filed by the appellant is hereby partly allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9c448fb704f534de18153026f6ef2b87.jpeg', '8baf12abbf8dc91cdf599bb386096e58.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-18', 1, '', '', '2022-06-17 19:41:47', '2022-06-18 17:49:39');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1838, 'POk91rlSsvVOvlRieTlM4liRd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Royalty income from the business profits cannot be included with business profits for calculation deductions under Section 80HHC of the Income Tax Act. Madras High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/s/ Fenner (India) Limited Vs The Assistant Commissioner of Income Tax.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>T.C.A. 184 of 2012 decided on 8 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice R. Mahadevan and Justice J. Sathya Narayana Prasad.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The appellant is engaged in the business of manufacture and sale of\r\nV & Fan Belts, Oil Seals etc. For the assessment year 2004-2005, they filed\r\nits return on 01.11.2004 admitting a total income of Rs.14,02,65,870/-,\r\nwhich was subsequently, revised by them on 20.09.2005, admitting the\r\nincome at Rs.13,93,08,090/-. Upon scrutiny of the same, the respondent\r\nissued notice under section 143(2) of the Income Tax Act, 1961 (in short,\r\n“the Act”) and thereafter, completed the assessment under section 143(3) on\r\n20.12.2006 determining the total income at Rs.14,67,27,610/- which\r\nexcludes long term capital gains. While doing so, the assessing officer\r\namong others, restricted the claim of deduction under section 80HHC by\r\nexcluding 90% of the royalty receipts from the profits of the business under\r\nclause (baa) to explanation to section 80HHC(4). Challenging the order of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">assessment passed by the assessing officer, the appellant preferred an appeal\r\nbefore the Commissioner of Income Tax (Appeals)-I, Madurai, who, by\r\norder dated 15.03.2007, partly allowed the appeal filed by the appellant.\r\nAggrieved over the same, the Revenue went on appeal before the ITAT. By\r\norder dated 31.03.2009, the Tribunal set aside the order of the CIT(A) and\r\ndirected the assessing officer to exclude the receipt of royalty from business\r\nprofits for the purpose of deduction under section 80HHC of the Act.\r\nTherefore, the appellant is before this court with this tax case appeal.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. The learned counsel for the appellant contended that the appellant\r\nentered into a MOU with its 100% subsidiary company; the subsidiary\r\ncompany manufactures the goods as per the specifications given by the\r\nappellant and the appellant has also provided know-how, secret formula\r\nmanufacturing process and methods to ensure the same quality of\r\nmanufactured goods; for providing these services, the subsidiary company\r\npaid royalty and hence, the royalty receipts are directly related to the goods\r\nexported by the appellant and the same cannot be excluded from the profits\r\nof the business. Without considering the said aspect in a proper perspective, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the assessing officer excluded 90% of the royalty receipts from the profits of\r\nthe business. Though the CIT(A) rightly set aside the order of assessment,\r\nthe Tribunal erred in directing the assessing officer to exclude the receipt of\r\nroyalty from business profits for the purpose of deduction under section\r\n80HHC of the Act. Therefore, the learned counsel sought to allow this\r\nappeal by setting aside the order of the Tribunal.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. Repudiating the claim so made on the side of the appellant, the\r\nlearned senior standing counsel appearing for the respondent submitted that\r\nthe appellant/assessee cannot improve their case, when the issue involved\r\nherein is covered by a decision of this Court in Commissioner of Income\r\nTax v. Shiva Distilleries Ltd., [(2007) 293 ITR 108], wherein, it was\r\ncategorically held that “guarantee commission as well as royalty viz., a\r\npayment for using a right, have to be excluded from the business profit for\r\nthe purpose of calculation of deduction under section 80HHC of the Act”.\r\nThus, according to the learned counsel, there cannot be any reason for\r\ndeviating such a view, which has already attained finality.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Before the assessing officer, the appellant claimed that the sale of\r\nraw materials, processed waste and scrap, sale of spares, etc. form part of\r\nbusiness activities and hence, it should be included in the total turnover.\r\nFurther, the royalty received by them for the services provided to the\r\nsubsidiary company, is related to export activity and therefore, the same\r\ncannot be taken into account for 90% exclusion from the business profits,\r\nwhile computing deduction under section 80HHC. However, the assessing <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">officer rejected the claim of the appellant, after having held that royalty\r\nincome claimed by them is not arising out of any business activity related to\r\nexport and it is incidental in nature and hence, 90% of the royalty income\r\nwas reduced from the profit of the business for computation of deduction\r\nunder section 80HHC. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. In the appeal filed by the appellant, the CIT(A) allowed the claim of\r\nthe appellant, relating to royalty income, after following the earlier order of\r\nthe Tribunal dated 31.07.2006 in ITA.No.2669/Mds/04 in respect of the\r\nappellant\'s own case for the assessment year 2000-01. However, the\r\nTribunal set aside the same and directed the assessing officer to exclude the\r\nreceipt of royalty from business profits for the purpose of deduction under\r\nsection 80HHC of the Act, based on the decision of this court in CIT v.\r\nShiva Distilleries Ltd [(2007) 293 ITR 108 (Madras). </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In the light of the said order, this court held that the scrap\r\nand waste materials, which would not be relatable to export business of the\r\nassessee, have to be excluded from business profit for the purpose of\r\ncalculation of deduction under section 80HHC of the Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. Further, in the same decision in Shiva Distilleries Ltd case, with\r\nregard to includibility of royalty as well as the guarantee commission for the\r\npurpose of calculation of deduction under section 80HHC of the Act, this\r\ncourt had referred to two decisions </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Following the said two decisions, it was\r\ncategorically held that “guarantee commission as well as royalty viz., a\r\npayment for using a right, have to be excluded from the business profit for\r\nthe purpose of calculation of deduction under section 80HHC of the Act”.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11. Applying the ratio laid down in the aforesaid decision viz., Shiva\r\nDistilleries Ltd\'s case, which is squarely applicable to the facts of the\r\npresent case, wherein, there is no concrete material produced by the\r\nappellant / assessee to prove that the royalty income received from the\r\nsubsidiary company, are related to export business, this court is of the view\r\nthat the Tribunal has rightly directed the assessing officer to exclude the\r\nroyalty income from the business profits for the purpose of calculation of\r\ndeduction under section 80HHC of the Act, which warrants no interference.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. In such view of the matter, the substantial questions of law raised\r\nherein are answered against the appellant. Accordingly, the tax case appeal\r\nstands dismissed. No costs.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'dbce7d51e74f1e495239dde3213f24c0.jpeg', '6514e237dc1a597b5ae25f82351d6778.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-18', 1, '', '', '2022-06-17 19:56:02', '2022-06-18 09:19:59'),
(1844, 'igf0xe4nwfDJZ9OFZUgc5zvoR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Income Tax Act. Limitation prescribed under Section 153 is applicable even to remand proceedings. Madras High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Commissioner of Income Tax and others Vs M/s. Roca Bathroom Products Private Limited.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WA 1517 of 2021 decided on 9 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice R. Mahadevan and Justice J. Sathya Narayana Prasad.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The respondent in these writ appeals namely WA Nos. 1517,\r\n1519, 1609 & 1610 of 2021 / M/s. Roca Bathroom Products Private Limited is\r\na private limited company incorporated during August 1983 and a subsidiary\r\nof Roca Sanitario S.A., Spain. They are engaged in the business of\r\nmanufacturing and marketing of bathroom products, such as, sanitary ware, tap\r\nfittings and other allied products. For the assessment year 2009-2010, they\r\nfiled their return on 26.09.2009, declaring an income of Rs.21,44,96,661/-.\r\nSimilarly, for the assessment year 2010-2011, they filed their return on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">30.09.2010 declaring an income of Rs.50,75,32,362/-. The returns of income\r\nwere taken up for scrutiny and were referred to Transfer Pricing Officer (in\r\nshort, “TPO”) under Section 92CA of The Income Tax Act, 1961 (in short,\r\n“the Act”).\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. The TPO passed an order dated 23.01.2013 in respect of\r\nassessment year 2009-2010, making a downward adjustment of\r\nRs.4,66,00,000/- on import of goods. Following the same, the Assessing\r\nOfficer passed a draft assessment order dated 30.03.2013, in conformity with\r\nthe adjustment proposed by the TPO and also made addition for</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(i)disallowance under Rule 14A</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(ii) disallowance on connectivity expenses\r\nand</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(iii) disallowance on unabsorbed depreciation of amalgamating company,\r\nto which, the respondent submitted their objections before the first appellant /\r\nDRP and the Assessing Officer. However, the DRP rejected the same and\r\nconfirmed the additions made in the draft assessment order and issued\r\ndirections under section 144C. Based on the same, the second appellant passed\r\nthe final assessment order on 16.01.2014 and raised a demand under\r\nsection 156 of Rs.1,46,07,560/-.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. For the assessment year 2010-2011, the TPO passed an order\r\nunder Section 92CA of the Act on 29.01.2014, making adjustment of\r\nRs.19,38,25,457/- in respect of 3 issues viz.,</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) downward adjustment on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">import of goods</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(ii) downward adjustment of advertisement, marketing and\r\npromotion expenses and</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(iii) downward adjustment on interest paid on\r\nCompulsorily Convertible Debentures. Accordingly, the Assessing Officer\r\npassed a draft assessment order on 24.03.2014 in conformity with the\r\nadjustment proposed by the TPO and also made addition for</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(i) disallowance\r\nunder Rule 14A and</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(ii) disallowance on connectivity expenses. Aggrieved by\r\nthe same, the respondent filed their objections before the first appellant / DRP,\r\nbut the objections were rejected by the DRP and directions were issued under\r\nsection 144C. Based on the same, the second appellant passed the final\r\nassessment order on 17.02.2015 and raised a demand under section 156 of\r\nRs.10,93,31,070/-.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n6. Assailing the assessment orders relating to the assessment years\r\n2009-2010 and 2010-2011, the respondent approached the Income Tax\r\nAppellate Tribunal by filing appeals. By a common order dated 18.12.2015,\r\nthe Tribunal allowed the appeals by setting aside the orders of the assessing\r\nofficer and remanding the matter to the assessing officer to refer the same to\r\nthe DRP for fresh examination, after giving sufficient opportunity to the\r\nassessee. In respect of the assessment year 2010-2011, the respondent/assessee\r\nfiled Miscellaneous Petition No. 71/Mds/2016 stating that certain grounds\r\nraised by them have not been adjudicated. By order dated 10.08.2016, the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Tribunal allowed the Miscellaneous Petition and reopened the appeal in\r\nrespect of grounds 4 to 7 for fresh adjudication. Pursuant to the same, the\r\nTribunal by order dated 23.09.2016, allowed the appeal and directed the\r\nassessing officer to reexamine the issue afresh, after providing reasonable\r\nopportunity to the assessee.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. According to the respondent, they did not receive any notice,\r\npursuant to the orders of the Tribunal and therefore, they sent a letter dated\r\n21.08.2019 to the second appellant stating that the remand proceedings have\r\nbecome time barred under Section 153 of the Act and hence, requested for\r\nrefund of the tax already paid by them for the assessment years 2009-2010 and\r\n2010-2011 along with interest. Thereafter, they received separate notices dated\r\n06.01.2020 from the Dispute Resolution Panel (in short, “the DRP”) calling\r\nupon them to appear for enquiry on 10.01.2020. Stating that as per the orders\r\nof the Tribunal, the assessing officer ought to have passed the draft assessment\r\norders afresh, within the time limit prescribed under section 153 of the Act,\r\nbut he failed to do so and hence, the notices dated 06.01.2020 issued by the\r\nfirst appellant are barred by limitation, the respondent filed Writ Petitions to\r\nquash the notices dated 06.01.2020 and consequently, direct the second\r\nappellant to refund the tax amount along with interest under section 244A of\r\nthe Act and also restraining the appellants from proceeding further in relation </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to the assessment years 2009-10 and 2010-11.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8. According to the respondent in WA.No.1854 of 2021 viz.,\r\nM/s. Freight Systems (India) Private Limited, they are an assessee on the file\r\nof the Deputy Commissioner of Income Tax. For the assessment year 2006-07,\r\nthey filed return of income on 29.11.2006 and subsequently, filed revised\r\nreturn of income on 19.10.2007. The return of income was taken up for\r\nscrutiny and was referred to Transfer Pricing Officer under Section 92CA of\r\nthe Act. The TPO passed an order on 31.10.2009 and based on the same, the\r\nassessing officer passed a draft assessment order on 31.12.2009, to which, the\r\nrespondent/assessee filed their objections before the DRP/ first appellant and\r\non 17.09.2010, the DRP disposed of the objections. Subsequently, the\r\nassessing officer passed the final assessment order on 29.10.2010, which was\r\nput to challenge before the Income Tax Appellate Tribunal. The Tribunal, by\r\nan order dated 24.01.2013, remanded the matter back to the DRP by\r\nconcluding that the freight forward segment had been omitted to be considered\r\nby the DRP. On remand, the DRP heard the respondent initially on 10.03.2014\r\nand on several dates. When the matter was pending on the file of DRP,\r\nChennai, it was ordered to be transferred to DRP, Bangalore, a newly\r\nconstituted division. After such transfer, no order has been passed and\r\ntherefore, the respondent sent a representation to the Chief Commissioner of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Income Tax (International Taxation) Bangalore for annulment of the entire\r\nproceedings and for refund of the amount collected from them by placing\r\nreliance on Section 153 of the Act. Thereafter, the respondent filed writ\r\npetition No. 6202 of 2019 to quash the final assessment order dated\r\n29.10.2020 passed under Section 143 (3) read with Section 144-C (13) of the\r\nAct and consequently direct the appellants to grant refund of Rs.4,72,88,068/-\r\nalong with interest.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12.(i) Mrs. Hema Muralikrishnan, learned senior panel counsel\r\nappearing for the appellants would submit that the DRP is entirely governed\r\nby the provisions contained under Section 144-C of the Act. As per Section\r\n144-C, the Assessing Officer shall forward a draft order of assessment to the\r\neligible assessee, if he proposes to make any variation in the income or loss\r\nreturned, which is prejudicial to the interest of such assessee. On receipt of\r\nsuch draft order, the assessee shall file his acceptance or objections and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">thereafter the Assessing Officer shall complete the assessment on the basis of\r\nsuch draft order, if no objections are filed and based on the directions issued\r\nby DRP, if objections are filed. The Assessing Officer, notwithstanding\r\nanything contained in Section 153 or Section 153B, shall pass assessment\r\norder under Section 144C(3) within a month from the end of the month in\r\nwhich the period for filing objections under sub-section (2) of Section 144C\r\nexpires. Therefore, it is contended that Section 144-C has to be considered\r\nindependently as far as DRP is concerned. Adding further, the learned counsel\r\nsubmitted that section 153 is a genus and section 144C is a specie which is\r\nindependent. Firstly, the marginal note to Section 144-C states that “Reference\r\nto dispute resolution panel”and secondly, sub-section 12 specifies the time\r\nlimit which the DRP shall give suggestions. Though under sub-section (5), the\r\nDRP can issue directions only upon receipt of objections, the time limit\r\nmentioned under sub-section (12) begins from the month in which the draft\r\norder is forwarded to the assessee by the Assessing Officer and not the month\r\nin which the assessee chooses to file objections. The significance of marginal\r\nnote and beginning of time limit is that the DRP\'s action begins only upon\r\nreference, which means an action initiated by the Assessing Officer. Such\r\nreference is made when the Assessing Officer forwards the draft assessment\r\norder to the assessee.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) It is further submitted by the learned senior panel counsel\r\nappearing for the appellants that when transfer pricing issues are involved and\r\nthe matter is referred to TPO as per Section 92CA, the TPO shall pass an order\r\nafter hearing the assessee, either confirming or modifying the arm\'s length\r\nprice between the associated enterprises. On receipt of such order, as per\r\nSection 144C of the Act, the Assessing Officer has to pass a draft assessment\r\norder after incorporating the adjustments suggested in the order of the TPO\r\nand also pass orders with respect to other issues. Thereafter the assessee has\r\ntwo options (i) he can file objections before the DRP against the draft\r\nassessment order or accept the assessment proceedings and (ii) if the assessee\r\nconveys his acceptance of the variations to the Assessing Officer, then the\r\nAssessing Officer can proceed to pass a final order, against which, a remedy of\r\nappeal is available before the Commissioner of Income Tax. However, in\r\ncase, the assessee objects to the draft assessment order before the DRP, then\r\nthe DRP shall, after hearing the assessee, issue directions to the Assessing\r\nOfficer to complete the assessment, based on which the Assessing Officer has\r\nto complete the assessment proceedings. Such an order can be passed by the\r\nAssessing Officer, notwithstanding anything to the contrary contained in\r\nSection 153 of the Act. Section 153 of the Act stipulates time limit for\r\ncompletion of assessment or re-assessment and re-computation by an assessing <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">officer in different circumstances i.e., time limit for completion of original\r\nassessment, completion of assessment on the basis of the order passed by the\r\nCommissioner under Section 263 or 264 of the Act or in compliance with the\r\norder of the Appellate Authorities or Tribunal or the Court. Section 153 of the\r\nAct is silent with respect to the period of limitation, within which time, the\r\nassessment has to be made by the assessing officer on the basis of the\r\ndirections of the DRP. The time limit is specifically excluded because the\r\nproceedings before the DRP as well as the proceedings initiated on the basis of\r\nthe directions issued by DRP are separate and distinct.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(v) The learned senior panel counsel for the appellants also submitted\r\nthat the decision of Bombay High Court in Principal Commissioner of\r\nIncome Tax vs. Lion Bridge Technologies Private Limited [2019 (260)\r\nTaxman 273] has no application to the facts of the present case. In that case,\r\nthe Bombay High Court did not consider the effect of Section 144C (13) which\r\nspecifically uses the words “notwithstanding anything to the contrary\r\ncontained in Sec.153 or Sec.153B” but the Court had an occasion to consider\r\nwhether the Assessing Officer could, by issuance of a Corrigendum, convert a\r\nfinal assessment order into that of a draft assessment order. Similarly, the\r\ndecision of the Delhi High Court in Nokia India Private Limited v. DCI\r\n[2018 (407) ITR 20] is not applicable to the case on hand, where the Court has\r\nnot considered the effect of Section 144C </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(13). Therefore, the reliance placed\r\nby the learned Judge on the aforesaid two decisions is improper. In any event,\r\nwhen Section 153 of the Act does not apply to DRP and the Assessing Officer\r\nhas no control over DRP, it has to be construed that there is no time limit <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">prescribed in the Act for the DRP to complete the proceedings. Therefore,\r\nSection 153 of the Act cannot be interpreted as if it imposes limitation to the\r\nAssessing Officer to pass orders upon remand of the matter by the Tribunal by\r\nobtaining order from DRP within the time prescribed under Section 153 of the\r\nAct. The order passed by the learned Judge, in effect, would mean prescribing\r\na limitation of one month prior to the date on which the period specified in\r\nSection 153(2A) expires for completion of proceedings by the DRP, when\r\nsuch limitation has not been prescribed by the legislature.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. We are not oblivious of the fact that any finding on the aspect of\r\nreasonableness in time in passing orders when no time is provided would be\r\nsuperfluous in view of our decision in earlier paragraphs. It is necessary to\r\ndecide on the issue as in this case, the revenue has taken more than 5 years in\r\none appeal and 4 years in other appeals, which is unacceptable as rightly held\r\nby the learned judge.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Generally, no hard and fast rule can be laid down to indicate what is a\r\nreasonable time. It though depends upon the facts of the each case, drawing a\r\nclue from Article 113 of the Limitation Act, the residual entry, it would be\r\nreasonable to conclude that in such cases, action is to be concluded within 3\r\nyears. Needless to say, if the statute prescribes shorter period, the doctrine of\r\nreasonable time will not be applicable and the timeline under the statute is to\r\nbe strictly followed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. For the reasons set out herein before, we conclude as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(a) The provisions of Sections 144C and 153 are not mutually\r\nexclusive, but are rather mutually inclusive. The period of limitation\r\nprescribed under Section 153 (2A) or 153 (3) is applicable, when the matters\r\nare remanded back irrespective of whether it is to the Assessing Officer or\r\nTPO or the DRP, the duty is on the assessing officer to pass orders.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(b) Even in case of remand, the TPO or the DRP have to follow the\r\ntime limits as provided under the Act. The entire proceedings including the\r\nhearing and directions have to be issued by the DRP within 9 months as\r\ncontemplated under Section 144C (12) of the Income Tax Act,</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(c) Irrespective of whether the DRP concludes the proceedings and\r\nissues directions or not, within 9 months, the Assessing officer is to pass\r\norders within the stipulated time,</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(d) In matter involving transfer pricing, upon remand to DRP, the\r\nAssessing officer is to pass a denova draft order and the entire proceedings as\r\nin the original assessment, would have to be completed within 12 months, as\r\nthe very purpose of extension is to ensure that orders are passed within the\r\nextended period, as otherwise the extension becomes meaningless.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">(e) The outer time limit of 33 months in case of reference to TPO\r\nunder Section 153, would not refer to draft order, but only to final order and\r\nhence, the entire proceedings would have to be concluded within the time\r\nlimits prescribed,</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">(f) The non-obstante clause would not exclude the operation of\r\nSection 153 as a whole. It only implies that irrespective of availability of\r\nlarger time to conclude the proceedings, final orders are to be passed within\r\none month in line with the scheme of the Act,</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">(g) When no period of limitation is prescribed, orders are to be passed\r\nwithin a reasonable time, which in any case cannot be beyond 3 years.\r\nHowever, when the statute prescribes a particular period within which orders\r\nare to be passed, then such period, irrespective of whether it is short or long,\r\nshall be applicable.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">28. With the above directions, all the writ appeals are dismissed.\r\nHowever, there will be no order as to costs. Consequently, connected\r\nmiscellaneous petitions are closed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4037c8b6a0f1b26b8f4d78d8bdf3a38b.jpeg', 'a3ef8c289c57a4af42905e336881932b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-22', 1, '', '', '2022-06-21 17:41:10', '2022-06-22 03:25:37');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1840, 'rVLjpm32tgvn6VSRoo9WKlKwL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Victim compensation is the social philosophy and legislative implication. Failure on the part of the prosecution to secure a conviction is not a ground to deny compensation”. Karnataka High Court orders compensation to minor girl orphaned due to crime. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State Through C.P.I Vs Laxmi Durappa.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 3628 of 2012 decided on 20 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Somashekar and Justice Anant Ramanth Hedge.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The facts narrated in the complaint filed by Huliappa s/o Ramaiah Chaluvadi are as under: The complainant is an agriculturist residing in Chincholi Village, Taluk Raichur. He had four brothers viz., Durgappa, Mariyappa, Shankar and Gurunath. It is stated that all the brothers were residing separately. It is alleged that the complainant’s brother’s wife Laxmi used to insist the complainant\'s brother Mariyappa, to cultivate the land. The complainant\'s brother Mariyappa refused to cultivate the land stating that there is no money to take care of family expenses and he would earn money from coolie work and thereafter would cultivate the land. This being the position, on 17.11.2010, Laxmi had threatened Mariyappa that in case the land is not cultivated by him, she would kill him, his wife and his children by setting the fire. It is further stated that the neighbours Basappa, Sabaiah, Shivappa and Durgappa who heard Laxmi’s threat had pacified Laxmi stating that Mariyappa would cultivate the land. On that day, however, Mariyappa did not cultivate the land and went out to do coolie work.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>It is further alleged that on 18.11.2010, around 1.00 ‘O’clock, midnight, the complainant and neighbours heard a screaming sound and they found that Mariyappa and his wife Mallamma and daughters Basamma and Radhika were set on fire and Laxmi ran away after seeing the complainant and neighbours named above. It is further stated that Mariyappa, Mallamma, Basamma and Radhika who had sustained burn injuries were immediately admitted to the hospital. Around 6.45 p.m. on 19.11.2010 Basamma, aged 6 years died. The complainant’s brother Mariyappa died on 20.11.2010 around 5.30 a.m. Later, Mallamma – the wife of Mariyappa also died on 03.12.2010. The complaint alleged that Laxmi poured kerosene on the complainant\'s brother Mariyappa, his wife Mallamma and two children Basamma and Radhika and committed murder by setting them ablaze at around  1.00 a.m. on 18.11.2010.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Based on the complaint, FIR was registered on 18.11.2010 by Jalahalli Police in Raichur and an investigation was carried out. After recording the dying declarations of Mariyappa, Mallamma and Basamma and after citing other witnesses, a charge sheet is laid against Laxmi for the offences under Sections 302 and 307 of IPC.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>The prosecution is relying on the dying declaration of Mariyappa which is said to have been recorded by PW16 - ASI Ramulu, in the hospital, between 10 a.m. and 11 a.m., on 18.11.2010. According to the prosecution, around 7.00 a.m., on 18.11.2010, when he was the Station House Officer, PW.16 received intimation from Raichur Hospital, relating to a medico-legal case and he reached the hospital around 9 a.m. after informing the jurisdictional Circle Inspector. It is also stated by him that the jurisdictional Taluka Executive Magistrate was informed by the hospital relating to the incident. He further states that he has given requisition to record the dying declaration. The evidence reveals that according to PW16, the dying declaration of Mariyappa was already recorded at 9.00 a.m. by the Taluk Executive Magistrate. He further states that he has recorded dying declaration between 10 a.m. and 11 a.m. and the same is marked at Ex.P.7. The High Court Government Pleader has also referred to Ex.P.16 and 18 the dying declarations recorded by the Doctor, would urge that the case of the prosecution is established from the aforementioned dying declarations. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>It is also urged by the appellant that the motive behind the commission of the offence is established by the prosecution. Referring to the complaint averments it is urged that the neighbours who are cited as witnesses in the charge sheet namely Basappa, Saibayya and Shivappa have seen the accused–Laxmi threatening the complainant’s brother that she would kill his family members if the complainant’s brother does not work in the field.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>It is also submitted by the learned counsel for the respondent, the motive attributed by the prosecution is not established. It is also submitted that there is serious doubt as to the scene of the offence, in as much as at one place, it is alleged that the incident has taken place inside the house and in another place, it is alleged that incident has taken place in the courtyard. It is also submitted that there is a contradiction relating to the courtyard as well. At one breadth the prosecution contends that the incident has taken place in the courtyard of the victims and at another breath, it is contended that the incident has taken place in the courtyard of the brother of the deceased – Mariyappa. Based on these submissions the learned counsel would urge to dismiss the appeal.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26.<span style=\"white-space:pre\">	</span>The dying declarations Ex.P.16 and Ex.P.18 are carefully analysed by the learned Sessions, Judge. The discrepancies in Ex.P.16 and Ex.P.18 are noticed by the trial Court. The declarations at Ex.P.16 and Ex.P.18 do not mention the particulars relating to requisition for recording dying declaration. The Tahsildar in his evidence has given contradictory versions as to the persons who were present at the time of recording dying declarations. In one breath he says Mariyappa\'s brothers were present and, in another breadth, he says none was present except the nurse while recording the dying declarations. Even the dying declarations of Mariyappa and Mallamma are not consistent with each other as to the place of the incident. Mariyappa says that the incident took place in his brother\'s house. However, Mallamma says the incident took place at her house. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">2</font></span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">7.</span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif; white-space: pre;\">	</span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">By analysing the evidence referred to above and noticing the discrepancies and contradictions, the learned Sessions Judge has rightly given the benefit of doubt in favour of the accused. There is no infirmity or error in appreciating the evidence on record. There are no grounds whatsoever to take a different view than the view taken by the learned Sessions Judge. Under the circumstances, the appeal has to be dismissed. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">28.</span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif; white-space: pre;\">	</span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">Accordingly, the appeal has to be dismissed confirming the judgment of acquittal of the trial Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\" style=\"background-color: rgb(255, 255, 0);\">Order Under Section 357A of Code of Criminal Procedure, 1973</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>29.<span style=\"white-space:pre\">	</span>Radhika the 8 year old child has survived this tragic incident. She lost her parents as well as her elder sister. Though three persons have died, the State is not able to place evidence before the Court to prove the guilt of the accused. The learned Sessions court has not passed any order under Section 357A of the Code relating to compensation payable to the victim.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>31.<span style=\"white-space:pre\">	</span>Section 357A introduced in the Code in terms of Act 5 of 2009, is a victim-centric provision which aims to compensate the victims of the crime by providing an inexpensive and effective mechanism. Unlike Section 357, the recommendation to pay compensation to the victim is not dependent on the verdict of guilty. This is apparent from the bare reading of the provision. Even in the event of acquittal or discharge of the accused, there can be a recommendation for compensation under S.357A of the Code. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>32.<span style=\"white-space:pre\">	</span>Compensation is rehabilitation and victim-centric. It is not based on conviction and dehors the result of the main proceeding. This is the social philosophy and legislative implication. Failure on the part of the prosecution to secure a conviction for want of evidence or any other reason is not a ground to deny compensation to the victim of a crime. From the combined reading of Sections 357 and 357A of the Code, it can be concluded that the Court needs to answer three questions before passing appropriate orders under Section 357A of the Code:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>a)<span style=\"white-space:pre\">	</span>Whether the person is a victim of a crime or not?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>b)<span style=\"white-space:pre\">	</span>Whether compensation is to be awarded in favour of the victim or not?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>c)<span style=\"white-space:pre\">	</span>Whether compensation can be recovered from the accused? If the answers to the question (a) and (b) are ‘yes’ and the answer to question (c) is ‘No’ then there must be a recommendation to the District Legal Services Authority or the State Legal Services Authority for payment of compensation as provided under Section 357A (2) & (3) of the Code.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>34.<span style=\"white-space:pre\">	</span>Even before the introduction of Section 357A of the Code, Section 357 conferred the jurisdiction on the Criminal Courts to pay compensation. The expression “whole or any part of the fine recovered to be applied” found in Sub-section (1) of Section 357 restricted the power of the Court to award compensation from the fine amount imposed. Though various penal laws provided for payment of fine, the fine amount prescribed under the penal laws was not substantial. The fine amount prescribed under the Indian Penal Code, 1860 was substantial in the 19th century. Hower the money value has eroded to a great extent since then. Failure on the part of the State to enhance the fine amount by way of suitable amendment to the penal law providing for fine, to bring the fine amount to a realistic level, made the provision relating to fine appear symbolic. It was not adequate to provide appropriate compensation under Section 357 of the Code. Though sub-section (3) of Section 357 conferred the jurisdiction on the criminal Courts exercising the powers under the Code to pay the compensation to the victim, the said provision was seldom invoked as observed by the Apex Court in HARI SINGH vs SUKHBIR SINGH reported in 1988(4) SCC 551. Even otherwise, said provision can be invoked only in the event of a conviction. The plight of the victim in cases ending in acquittal was not addressed at all.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>42.<span style=\"white-space:pre\">	</span>In the instant case, though the accused is acquitted, there is no denial of the fact that Radhika – the victim of the accident has lost her parents and elder sister at the tender age of 8. Under the circumstances, this Court is of the opinion that victim Radhika is entitled to compensation under Section 357A of the Code.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>46.<span style=\"white-space:pre\">	</span>In the instant case, the victim was aged 8 years at the time of the incident. Now, she is aged 15 years. Admittedly, she is a minor. No application is filed on behalf of the victim seeking compensation. Clause 9 of the scheme provides that the application seeking compensation shall not be entertained after twelve months from the date of crime. However, the power is conferred on the District Legal Services Authority to condone the delay for sufficient reasons, if the claim is made beyond the prescribed period of twelve months. However, from a reading of sub-section (2) of Section 357A, no time limit is prescribed for the Court to make recommendations for rehabilitation and compensation. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>47.<span style=\"white-space:pre\">	</span>Under the circumstances, this Court is of the opinion that Radhika, who is now aged 15 years and who lost her parents and elder sister at the tender age of 8, should be compensated appropriately as per the provisions of the Karnataka Victim Compensation Scheme, 2011. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>48.<span style=\"white-space:pre\">	</span>It is also necessary to add here that Radhika is minor. The minor’s interest is to be protected. If there are no guardians to protect the interest of the minor, the District Legal Services Authority shall take the necessary steps to open the account in the name of minor Radhika and to deposit the compensation payable to Radhika. Clause 15 of the scheme, 2018 shall be followed to the extent possible</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>50.<span style=\"white-space:pre\">	</span>Since Radhika is now aged 15 years, it is also required to ascertain under whose care and custody she is at present. If the District Legal Service Authority after enquiry contemplated under sub-section (5) of Section 357A of the Code concludes that Radhika needs rehabilitation or that her interest is not adequately safeguarded by the present defacto guardian if any, then jurisdictional District Legal Services Authority shall make suitable orders for rehabilitation of Radhika and the jurisdictional District Legal Services Authority shall also ensure that compensation payable to Radhika is utilised for the benefit and welfare of Radhika.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd43ab32512ebeadff83a859cfee129ef.png', 'b4066a8859b8bc90abc133bb01c8f049.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-18', 1, '', '', '2022-06-18 17:48:20', '2022-06-18 23:32:24'),
(1841, 'Dxr10Pn8nxgZFjkFJ5bx4Z8j9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Submission of ‘No Claim Certificate’ along with the final bill by contractor to employer does not preclude raising of arbitration dispute alleging undue influence in obtaining the Certificate. Telangana High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/s BPR Infrastructure Limited Vs M/s RITES Ltd and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Arbitration Application 22 of 2019 decided on 8 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ujjal Bhuyan.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Applicant is a company engaged in the business of civil\r\nand structural, infrastructural and electrical engineering\r\nservices.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. First respondent which is a Government of India\r\nenterprise, issued tender notice inviting tenders for the work\r\n“construction of laboratory, buildings, animal house, security\r\nblock including internal roads, compound wall, underground\r\nsump, water supply, sanitary, internal electrification and\r\nother ancillary works at site ‘A’ and construction of hostel\r\nbuilding, residential blocks, Director’s bungalow, internal\r\nroads, underground sump, water supply, sanitary, internal <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">electrification and other ancillary works at site ‘B’ for the\r\nCentre for DNA Fingerprinting and Diagnostics at Uppal X\r\nRoads, Hyderabad”. Tender submitted by the applicant was\r\naccepted by the first respondent on 25.03.2013 for a total\r\ncontract price of Rs.50,03,16,920-04, with completion period\r\nbeing 24 months.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Though the stipulated date of completion was 24\r\nmonths, with expiry date being 21.04.2015, there were\r\nextensions from time to time for reasons completely beyond\r\napplicant’s control. According to the applicant, the execution\r\nof the work was extended beyond the contract period for a\r\nfurther period of 691 days.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Because of such extension and associated escalation of\r\nprice, applicant issued notice to the first respondent on\r\n23.04.2015 for additional payment. This was followed by\r\nletters dated 05.07.2015 and 01.07.2016. However,\r\nrespondents did not agree with such claim of the applicant. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. When applicant enquired about payment to be made to\r\nit, it was informed that unless applicant furnished a ‘no claim\r\ncertificate’ in the prescribed format to the first respondent, it\r\nwould not receive the remaining payment. However,\r\naccording to the applicant, submission of no claim certificate\r\nalong with the final bill was not envisaged in the agreement.\r\nBut, because of the dominant position of the first respondent\r\nand also on account of the fact that applicant was in dire\r\nneed of money, it had submitted a no claim certificate on\r\n07.03.2018, which it is stated was under coercion and\r\nduress. Two days after the no claim certificate was submitted,\r\npayment was made to the applicant on 09.03.2018.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Applicant thereafter issued letter to the first respondent\r\nregarding additional payment which was, however, rejected by\r\nrespondent No.1 on the ground that applicant had submitted\r\nno claim certificate. Applicant has stated that all disputes\r\narising out of the contract are governed by Clause 25 of the\r\ngeneral conditions of contract. Accordingly, applicant had <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">submitted its claim to the first respondent, vide letter dated\r\n30.07.2018. The details of claim are mentioned in paragraph\r\nNo.10 of the affidavit and in annexure IX.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. Respondent No.1 denied all the claims of the applicant\r\nthrough its letter dated 21.08.2018 since applicant had\r\nsigned and filed a no claim certificate. Being aggrieved by the\r\nrejection letter of respondent No.1 dated 21.08.2018,\r\napplicant wrote back to the first respondent on 30.08.2018\r\nstating that though the final bill was submitted on\r\n24.08.2017, it was informed that unless a no claim certificate\r\nwas furnished in a prescribed proforma, the final bill would\r\nnot be paid. Applicant was directed to submit a no claim\r\ncertificate in a proforma handed over, though submission of\r\nsuch a certificate along with the final bill was not envisaged in\r\nthe agreement. Applicant stated that since it was in dire\r\nneed of money, it submitted the no claim certificate on\r\n07.03.2018 which should be treated as having been given\r\nunder coercion and under compelling circumstances. Thus,\r\nsuch a certificate obtained on account of undue influence and\r\ndominating position, would be invalid. Be that as it may, the\r\nclaims made by the applicant were rejected by the first\r\nrespondent vide letter dated 24.10.2018 whereunder it was </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">again reiterated that applicant had submitted no claim\r\ncertificate but denied that it was obtained under coercion or\r\nunder undue influence. Since the final bill was settled and\r\nthe payment was credited into the bank account of the\r\napplicant, payment of further amount as per the claims made\r\nby the applicant would not arise.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. Learned counsel for the applicant has referred to the\r\nagreement dated 17.05.2013 entered into between the\r\napplicant and the first respondent, particularly to Clause 25\r\nthereof which deals with settlement of disputes and\r\narbitration. He has also referred to the claim made by the\r\napplicant (page No.550 of the paper book). He thereafter\r\nsubmits that rejection of the claim of the applicant by the first\r\nrespondent vide letter dated 21.08.2018 on the ground that\r\napplicant had submitted no claim certificate dated 07.03.2018\r\nalong with final bill whereafter the final payment was released\r\nto the applicant on 09.03.2018 is not at all justified. Referring\r\nto Clause 25 (5) of the general conditions of contract, which\r\nsays that applicant would not be entitled to lodge any claim\r\nwhatsoever under the contract by virtue of the contract or\r\narising out of the contract, he submits that had the applicant\r\nnot submitted the no claim certificate, first respondent being\r\nin a dominant and dominating position, would not have\r\ncleared the final bill. He, therefore, submits that there is a\r\nvalid arbitration clause governing the parties and a referable\r\ndispute between the parties. In such circumstances, this <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court may appoint an arbitrator in terms of Clause 25 of the\r\ngeneral conditions of contract and refer the dispute to\r\narbitration to be conducted by the learned arbitrator. In\r\nsupport of his contentions, learned counsel for the applicant\r\nhas placed reliance on a number of decisions.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18. On the other hand, Mr.Rajeeva Reddy, learned counsel\r\nfor the first respondent submits at the outset that the\r\nallegation of coercion or duress made against the first\r\nrespondent is not at all correct. Referring to the additional\r\nclaims made by the applicant on 30.07.2018 he submits that\r\nnowhere it was stated that the no claim certificate was issued\r\nunder compulsion or duress. Adverting to Sub-Clause (5) of\r\nClause 25 of the general conditions of contract, he submits\r\nthat it is clearly stated therein that the contractor would not\r\nbe entitled to make any claim whatsoever against the\r\nemployer nor shall the employer entertain or consider any\r\nsuch claim if made by the contractor after the contractor had\r\nsigned and furnished a no claim certificate in favour of the\r\nemployer as in the present case. Contractor would be\r\ndebarred from disputing the correctness of any item covered\r\nby the no claim certificate or demanding a reference to\r\narbitration in respect thereof. Even in the arbitration </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">application, a bald statement has been made that no claim\r\ncertificate was submitted by the applicant under undue\r\ninfluence and duress. In such circumstances, he seeks\r\ndismissal of the arbitration application.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. A Constitution Bench of the Supreme Court in\r\nBishundeo Narain Vs. Seogeni Rai1, while dealing with a bill\r\narising out of a suit for a declaration that the compromise\r\ndecree made in a previous suit for partition would not bind\r\nthe parties, dealt with the question of undue influence and\r\ncoercion. It was observed that those were not separately\r\npleaded, further observing that no proper particulars were\r\nfurnished stating that if there is one rule which is better\r\nestablished than any other, it is that in cases of fraud, undue\r\ninfluence and coercion, parties pleading it must set forth full\r\nparticulars and the case can only be decided on the\r\nparticulars as laid.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. Supreme Court in Union of India Vs. Master\r\nConstruction Company was examining a decision of the\r\nHigh Court under Section 11 (6) of the 1996 Act holding that\r\nall disputes between the parties to the contract had to be\r\nreferred to arbitration; whereafter learned arbitrator was\r\nappointed, dealt with the issue regarding furnishing of no\r\nclaim certificate. The question before the Supreme Court was\r\nafter furnishing no claim certificate and after receipt of\r\npayment of final bill as submitted by the contractor whether <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">any arbitrable dispute between the parties survived or the\r\ncontract stood discharged. After referring to its various\r\ndecisions, Supreme Court opined that there is no rule of the\r\nabsolute kind. In a case where the claimant contends that\r\ndischarge voucher or no claim certificate has been obtained by\r\nfraud, coercion, duress or undue influence, and the other side\r\ncontests the correctness thereof, the Chief Justice or his\r\ndesignate must look into this aspect to find out at least, prima\r\nfacie, whether or not the dispute is bona fide and genuine.\r\nWhere the dispute raised by the claimant with regard to\r\nvalidity of the discharge voucher or no claim certificate or\r\nsettlement agreement, prima facie, appears to be lacking in\r\ncredibility, there may not be a necessity to refer the dispute\r\nfor arbitration at all.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. Again in the case of United India Insurance Company\r\nLimited Vs. Antique Art Exports Private Limited3,\r\nSupreme Court referred to the decision in Master\r\nConstruction Company (2 supra) but held that a mere plea\r\nof fraud, coercion or undue influence in itself is not enough.\r\nThe party who alleges so is under obligation to prima facie\r\nestablish the same by placing satisfactory material on record\r\nbefore the Chief Justice or his designate. In the facts of that\r\ncase it was held that no dispute subsisted after the discharge\r\nvoucher being signed by respondent without any demur or\r\nprotest. Belatedly a claim was raised that the discharge\r\nvoucher was signed under undue influence and coercion with\r\nno supportive prima facie evidence being placed on record.\r\nSupreme Court, therefore, concluded that it must necessarily\r\nfollow that the claim had been settled with accord and\r\nsatisfaction leaving no arbitral dispute subsisting under the\r\nagreement to be referred to the arbitrator for adjudication.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. Having surveyed the legal provision, Court may now\r\nadvert to the agreement dated 17.05.2013 entered into\r\nbetween the applicant and the first respondent.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. Reference may also be made to Sub-Clause (5) of Clause\r\n25, which deals with no claim certificate<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29 Applicant in its letter dated 30.08.2018 had stated that\r\nthe final bill was submitted on 24.08.2017. When it came to\r\nknow that the final bill would not be paid unless and until a\r\nno claim certificate was submitted and as the applicant was in\r\ndire need of money, it submitted the no claim certificate on 07.03.2018. In the aforesaid context applicant contended\r\nthat submission of such no claim certificate would have to be\r\nconstrued as to have been given under coercion and\r\ncompelling circumstances. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>31. From a perusal of the above, it is seen that applicant\r\nhad accepted the bill including the measurements as full and\r\nfinal settlement even before the bill was settled. Thereafter, the applicant certified (as per the proforma) that it was\r\nsubmitting unconditionally and unequivocally the no claim\r\ncertificate in respect of the contract work.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">32. Prima facie both the parties to the agreement do not\r\nstand on the same footing. Bargaining power of the employer\r\ni.e. first respondent is certainly much more because of its\r\ncommanding and controlling position. But this is an aspect\r\ni.e. whether the no claim certificate would foreclose raising of\r\nfurther claim by the applicant leading to discharge of contract\r\nor whether the same can be construed to have been signed\r\nand submitted because of the compelling circumstances\r\nvirtually putting the applicant under compulsion / duress is\r\nan issue which can certainly be gone into by the learned\r\narbitrator.</span> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. Admittedly, there is a valid arbitration clause and claim\r\nmade by the applicant is not a deadwood. That being the\r\nposition and upon thorough consideration of all aspects of the matter, Court is of the view that the dispute raised by the\r\napplicant requires to be referred to arbitration to be\r\nconducted by a sole arbitrator, keeping all contentions open,\r\nincluding the effect of the no claim certificate signed and\r\nsubmitted by the applicant. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>37. This disposes of the arbitration application.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fc10cd08d0cd36d01f25fb306b5aefe4.jpeg', '6794fb7a3509ae86b389de75f9b2727f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-21', 1, '', '', '2022-06-18 19:49:17', '2022-06-21 13:42:07');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1842, 'JKtSlUXxph8XUhrNE2blNCuJe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Permitting defendant to sell existing stock while granting injunction in infringement and passing off matters in respect of pharmaceutical products would balance the equities when there is no dispute on the quality of the product. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Alkem Laboratories Ltd Vs M/S Laborate Pharmaceuticals India Ltd and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>FAO (COMM) 94 of 2022 decided on 17 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Jyoti Singh and Justice Anoop Kumar Mendiratta.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Respondent No.1 (hereinafter referred to as the ‘Respondent’) filed a\r\nsuit against the Appellant, alleging infringement of trademark and\r\ncopyright as well as passing off with respect to its registered trademark\r\n‘LABDIC RELIEF’ and packaging thereof as well as unfair competition,\r\ndilution, etc. in respect of product being ‘pain relieving’ tablets. Vide order\r\ndated 30.05.2022, an ex parte ad-interim injunction was granted by the Trial\r\nCourt restraining the Appellant from manufacturing, selling or dealing in\r\npharmaceutical preparations under the impugned mark ‘ALDIGESIC PAIN\r\nRELIEF’ or any other mark similar to the mark of the Respondent.\r\nAppellant was also restrained from using its trade dress/product packaging\r\nand the blister packaging, alleged to be similar to Respondent’s packaging\r\nunder ‘LABDIC RELIEF’.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Upon being served, Appellant filed an application under Order 39\r\nRule 4 CPC seeking setting aside of or vacating/varying the order dated\r\n30.05.2022. An application was also filed under section 151 CPC for\r\npermission to sell its existing stock, amongst other reliefs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The learned Trial Court vide order 09.06.2022 declined to vacate the\r\ninterim injunction, clarifying, however,that Appellant was not restrained\r\nfrom dealing in products bearing the trademark ‘ALDIGESIC’ and rejecting\r\nthe prayer for sale of the existing stock.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Extensive arguments have been addressed by learned Senior Counsels\r\nfor the parties on the merits ofthe impugned orders. Contentions raised on\r\nbehalf of the Appellant are inter alia that: (a)the ex-parte injunction was\r\nobtained by suppression of material facts, particularly that Appellant is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the prior registrant of its trademark ‘ALDIGESIC’ (word) as against\r\nRespondent’s registration for ‘LABDIC RELIEF’(word); (b) Respondent\r\nsuppressed that the Appellant has been using the trademark ‘ALDIGESIC’\r\nsince 2010 continuously and extensively; (c) packaging of Appellant’s\r\nproduct, i.e., pain relieving tablets,sold under the mark‘ALDIGESIC PAIN\r\nRELIEF’ and that of Respondent’s productsold under the mark ‘LABDIC\r\nRELIEF’ are palpably different and distinct with marked differences;\r\n(d) there are stark differences between the rival cartons and blister strip\r\npackaging;(e) Respondent cannot claim monopoly over the colour of the\r\npackaging, especially when the ‘red’ colour is common to trade; and (f) the\r\nword ‘RELIEF’ is generic and descriptive to pain relief tablets and common\r\nto trade, used to describe the character of the product as a general descriptor\r\nand no proprietaryrights can vest in the Respondent, to its exclusive use.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>6. Preliminary objection is raised on behalf of the Respondent with\r\nregard to maintainability of the appeal on the ground that the relief of selling\r\nthe existing stock was sought by the Appellant in an application filed under\r\nsection 151 CPC and no appeal lies against an order passed under the said\r\nprovision. On merits, the contentions, as articulated by the learned Senior\r\nCounsel are:</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(a) Respondent adopted the trademark ‘LABDIC RELIEF’ for\r\nmanufacturing and marketing pain killer tabletsin the year 2001, packaged\r\nin a unique and artistic dispenser pack, which has a glossy holographic\r\nbackground prominently displaying the trademark ‘LABDIC’ below which\r\nthe mark ‘RELIEF’is written upfront in a bold eye catching gold font and a\r\nblister pack, the front of which is completely red with a vertical gold strip on\r\none corner and rear of which has a golden foil on which the mark LABDIC\r\nRELIEF is written in a distinctive manner against a maroon backdrop; </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(b) Respondent is a registered proprietor of the wordmark ‘LABDIC\r\nRELIEF’ and the registration is valid and subsisting;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(c) the distinctive\r\nfeatures of Respondent’s trade dress/packaging are a subject matter of\r\ncopyright and Respondent is the first owner of the copyright under\r\nSection 17 of the Copyright Act, 1957;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(d) Appellant’s impugned product is\r\nfrom the same family of pain relievers packaged and sold in deceptively\r\nsimilar trade dress/product packaging with identical features, with an intent\r\nto confuse the customers and encash on the immense goodwill and\r\nreputation of the Respondent;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(e) misrepresentation by the Appellant is\r\nbound to deceive the customers as the products are identical and the trading\r\nchannels and class of customers are same and is calculated to cause damage\r\nand injury to Respondent’s business and goodwill; and</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(f) unauthorised use\r\nof similar trademark/trade dress/product packaging by the Appellant\r\namounts to infringement and passing off, unfair competition and\r\ndilution etc.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. We may now deal with the argument of the learned Senior Counsel\r\nfor the Appellant, put forth very emphaticallythat the existing stock worth\r\nabout Rs.90 lakhs be permitted to be sold, without prejudice to the rights and\r\ncontentions of the parties before the Trial Court.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. The aforesaid prayer is opposed by learned Senior Counsel for the\r\nRespondent with equal vehemence. It is submitted that the Trial Court, while\r\ngranting ex parte injunction, has rendered a prima facie finding that the\r\nAppellant’s product, which is also a pain killer, is being sold in a packaging/\r\ntrade dress, which has similar colour combination, get-up, design, etc.\r\nincluding the similarity in the blister packs in terms of colour combination,\r\netc. For thisreason, the Court declined to vacate the interim injunction, save\r\nand except to the extent of a limited clarification and also rejected the\r\nprayer for sale of the existing stock.If the Appellant is allowed to sell the\r\nexisting stock, this would amount to selling infringing goods in the market.\r\nIt is also highlighted that the product in question is a pharmaceutical\r\npreparation, in respect of which the threshold of the test of confusion is\r\nlower and as held by the Supreme Court in Cadila Health Care Ltd. v.\r\nCadila Pharmaceuticals Ltd., (2001) 5 SCC 73, stringent standards must be\r\napplied in permitting the sales of pharmaceutical products. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. First and foremost, we may examine the objection raised by the\r\nRespondent with regard to maintainability of the present appeal. A perusal\r\nof the impugned order dated 09.06.2022, wherein the learned Trial Court has\r\nrejected the prayer of the Appellant to sell the existing stock, clearly\r\nindicates that the order has been rendered under Order 39 Rule 4 CPC.\r\nWhile it is a matter of record and cannot be disputed that the prayer for sale\r\nof existing stock was made in an application under section 151 CPC,\r\nhowever, the decision thereon has been rendered as a part of the order under\r\nOrder 39 Rule 4 CPC, treating the said relief as an ancillary and/or\r\nalternate interim relief. It is not the case of the Respondent that it has\r\nchallenged the said order on this ground. No objection is raised with regard\r\nto maintainability of the appeal under Order 43 Rule 1(r) against orders\r\npassed under Order 39 Rules 1 and 2 CPC and Order 39 Rule 4 CPC and\r\nrightly so. Section 13 of the Commercial Courts Act clearly provides that an\r\nappeal shall lie from such orders passed by a Commercial Division or a\r\nCommercial Court that are specifically enumerated under Order 43 of CPC.\r\nOrder 43 Rule 1(r) provides that an appeal shall lie from an order under\r\nOrder 39 Rules 1 and 2 and Rule 4CPC. Therefore, in our considered view\r\nthe objection has no merit and cannot be sustained.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. The limited and the only issue that this Court is now required to\r\nconsider is whether the Appellant should be permitted to sell the existing\r\nstock. Duringthe course of hearing,we were apprised that the competing\r\nproduct is a pain relieversold under prescription, being a Schedule ‘H’ drug.\r\nHaving carefully considered the matter and without touching on the merits\r\nof the rival claims, we are of the view that balance of equities would be\r\nmaintained between the parties if the Appellant is permitted to sell the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">existing stock,which is worth Rs.90 lakhs. We are persuaded to grant this\r\npermission on account of the fact that the subject product is a pain reliever\r\nand a ‘Schedule-H’ drug and there is no dispute on the quality of the\r\nAppellant’s product. In fact, it is pertinent to note that on a pointed query by\r\nthe Court with respect to the quality of the product of the Appellant, learned\r\nSenior Counsel for the Respondent fairly and candidly states that the quality\r\nof the impugned product cannot be questioned.Therefore, even the public\r\ninterest would be sub-served if the product of the Appellant is allowed to be\r\nsold in the market. We are fortified, in our view, by judicial precedents in\r\nthis regard, where even in matters relating to pharmaceutical products,\r\nCourts have been holding that in some instances, a prima facie case or even\r\na strong case of infringement in favour of one party can be off-set by an\r\ninterim arrangement, which balances the equities between the parties and\r\nmaintains public interest and Defendants have been granted permission to\r\nsell the existing stock, subject to maintaining a record of the sales for\r\ncomputing a claim of damages, if the Plaintiffs were to finally succeed. In\r\nFAO(OS) 446/2014 titled Lupin Limited v. Sun Pharma Laboratories\r\nLimited & Anr., a Division Bench of this Court modified the impugned\r\norder of injunction to enable the Appellant/Defendant to exhaust the existing\r\nstock and the factors which weighed with the Court are discernible from\r\npara 5 of the order, subject to a caveat that the Appellant shall file an\r\naffidavit enclosing the stock statement, certified as authentic by a\r\nresponsible officer of the Appellant Company. In Sun Pharma Laboratories\r\nLtd. vs. Ajanta Pharma Ltd., 2019 SCC OnLine Del 8443 and Saga\r\nLifesciences Limited vs. Aristo Pharmaceuticals Pvt. Ltd. and Another,\r\n2022 SCC OnLine Del 1351, learned Single Judge of this Court has </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">permitted the Defendants therein to sell the existing stock while granting\r\ninjunctions in favour of the Plaintiffsin matters relating to infringement and\r\npassing off in respect of pharmaceutical products, in order to balance the\r\nequities.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>14. In view of the aforesaid, the learned Trial Court is not justified in\r\ndeclining the relief of sale of the existing stock to the Appellant and the\r\norder dated 09.06.2022 requires modification to this extent. Appellant has\r\nalready placed on record before the Trial Court a statement and inventory of\r\nthe existing stockcontaining details of Batch nos.; Product Name; Storage\r\nLocation; Plant Name; Expiry Date; Stock Quantity; and remaining shelf\r\nlife, etc., which are also a part of the Appeal before this Court.Accordingly,\r\nit is directed as follows:</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>a). Appellant shall file an affidavit in this Court,within one week\r\nfrom today, detailing the existing stock of the product in question\r\nalong with the total value of the stock as well as an undertaking that it\r\nshall only exhaust the existing stock till any further order by the Trial\r\nCourt in its favour; and</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">b). The entire account of sales of the existing stock sold from various\r\nlocations, with dates of sales, shall be filed on record of the learned\r\nTrial Court, by way of an affidavit of an authorised signatory of the\r\nAppellant Company.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. The appeal is disposed of along with pending application, in the above\r\nterms.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. No orders as to costs</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a8278fcd8e40d027aba307fbee3a8322.png', '9ce719a30aeaa8372e7ec4903eccc1d0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-22', 1, '', '', '2022-06-20 17:14:56', '2022-06-22 06:26:52'),
(1843, 'EO517tNjTgZOGFc62rRCxPfJM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘’Article 14 of the Constitution of India does not envisage equal treatment of unequal’’. Calcutta High Court while upholding different eligibility criteria for Assistant Teachers and Headmasters/Headmistresses in Government Schools. ', '<p><b> <span style=\"font-family: Calibri, sans-serif; font-size: 12pt;\">Pranati Aguan Vs State of West Bengal and others.</span></b></p><p><span style=\"font-family: Calibri, sans-serif; font-size: 12pt;\"><b>WPA 21174 of 2017 decided on 10 June 2022.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Moushumi Bhattacharya.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>1. The petitioners pray for cancellation and withdrawal of amendments\r\nmade to the West Bengal School Service Commission (Selection for\r\nappointment to the Posts of Headmaster/Headmistress in Secondary or\r\nHigher Secondary and Junior High Schools) Rules, 2016 as notified on 24th\r\nMarch, 2017 and all subsequent Notifications issued thereafter to the extent\r\nof imposing enhanced qualifications for selection of\r\nHeadmasters/Headmistresses in Secondary, Higher Secondary and Junior\r\nHigh Schools. The ground for seeking rescission of the impugned Notification\r\nis infringement of Article 14 of the Constitution. The petitioners seek to make\r\nout a case that the impugned Notification, enhancing the qualification for\r\nselection to the post of Headmaster/Headmistress from 45% to 50% in\r\nacademic and professional qualifications, is violative of the right to equality\r\nand that the petitioners have been discriminated against by the said\r\nimpugned amendment.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. The petitioners are Assistant Teachers of High Schools in the State and\r\nare presently serving in that position. The petitioners claim to be eligible for\r\nbeing appointed to the post of Headmaster/Headmistress in the concerned\r\nschools on the basis of the marks obtained by the petitioners which are in the\r\nrange of 45%-50% in the post-graduate level. The petitioners contend that by\r\nthe earlier Gazette Publication on 21st September, 2016 of the Selection Rules,\r\n2016, particularly Rule 4 read with Schedule I of the said Rules, the required\r\nqualification of a candidate for appointment to the post of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Headmaster/Headmistress in schools was a Master’s degree from a recognized\r\nUniversity with at least 45% marks at the post-graduate level.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3. By an order dated 22nd January, 2019, a learned Single Judge of this\r\nCourt had stayed the counselling scheduled to be held on 24th January, 2019\r\nuntil further orders. The stay order as well as subsequent orders extending\r\nthe stay on counselling were vacated by this Court on 25th June, 2019. The\r\nselection process for appointing the eligible candidates in terms of the\r\namended Rules of 2016 were allowed to continue and a certain number of\r\nseats were directed to be kept vacant for balancing the interest of the\r\npetitioners who had approached the Court for relief.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. Mr. Kalyan Bandhopadhay and Mr. Ekramul Bari, learned senior\r\ncounsel appearing for the petitioners, submit that the impugned Notification\r\nof 24th March, 2017 has abruptly increased the required percentage from 45%\r\nto 50% which is violative of the petitioners’ right to equality under Article 14 of\r\nthe Constitution. Counsel also assail subsequent Notifications including of\r\n12th June, 2017 which published the eligibility criteria for recruitment to the\r\npost of Headmaster/Headmistress. It is further submitted that the impugned\r\nNotification has restrained the petitioners from participating in the\r\nrecruitment process even though the petitioners have completed 10 years of\r\ncontinuous service. Counsel submit that the impugned Notification has\r\nresulted in an artificial distinction by treating the petitioners as a separate\r\nclass and further that the State respondents cannot rely upon The National\r\nCouncil for Teacher Education Act, 1993 for prescribing a minimum standard </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of education for school teachers. It is also submitted that the impugned\r\nNotification creates a classification of the petitioners as teachers in one class\r\nand the Headmaster/Headmistress in another class in respect of all their\r\neducational qualifications. Counsel have cited several cases to stress on the\r\npetitioners’ right to equal opportunity in the matter of public employment\r\nunder Articles 14 and 16 of the Constitution.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5. Mr. Anirban Ray, learned Government pleader assisted by Mr. Varun\r\nKothari, learned counsel, appearing for the State defend the impugned\r\nNotification on the ground that the NCTE Act, 1993 provides for certain\r\nuniform provisions which are applicable to all schools imparting pre-primary,\r\nprimary, upper primary, secondary or senior secondary education and that\r\nthe State is bound by the said Act. Counsel also relies on a Regulation dated\r\n12th November, 2014 issued under the NCTE Act for determining the\r\nminimum qualifications for persons who are to be recruited as teachers in\r\nPre-Primary, Primary, Upper Primary, Secondary, Senior Secondary or\r\nIntermediate Schools or Colleges. Counsel submits that the State enacted the\r\nimpugned amendment Notification pursuant to the Regulation issued by the\r\nNational Council for Teacher Education and further that the increase in the\r\neligibility criterion for becoming Headmaster/Headmistress from 45% to 50%\r\nin post-graduate is for the purpose of increasing the standard of education\r\nimparted to the students of the State. Counsel denies that the impugned\r\nNotification is discriminatory or that it creates any artificial distinctions in any\r\nmanner. It is also submitted that the petitioners cannot have any legitimate\r\nexpectation of becoming a Headmaster/Headmistress as the same is not a </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">promotional post and the petitioners would have to fulfil the eligibility criteria\r\nfor being selected as a Headmaster/Headmistress. Counsel rely on several\r\ndecisions in support of their contentions.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. The controversy in the present matter is whether the School Education\r\nDepartment of the Government of West Bengal could have, by the impugned\r\nNotification dated 24th March, 2017, amended Schedule I and Schedule II of\r\nthe West Bengal School Service Commission (Selection for appointment to the\r\nPosts of Headmaster/Headmistress in Secondary or Higher Secondary and\r\nJunior High Schools) Rules, 2016, by enhancing the educational qualification\r\nincluding professional qualifications from 45% to 50% for recruitment to the\r\npost of Headmaster/Headmistress. The ground taken in the writ petitions in\r\nsupport of such challenge essentially concern the petitioners being deprived of\r\nan opportunity to participate in the recruitment for the post of\r\nHeadmaster/Headmistress as a result of the enhancement of educational\r\nqualifications from 45% to 50%. The petitioners are serving as Assistant\r\nTeachers in High Schools and/or schools coming within the ambit of the\r\nSelection Rules, 2016. The second ground of challenge is the Government\r\nSchools having notified a similar increase in the percentage in respect of\r\neducational and professional qualifications.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The first part of the first issue is being answered as follows. The\r\npetitioners cannot have any legitimate expectation for being recruited to the\r\npost of Headmaster/Headmistress in the concerned schools from the time of\r\njoining the said schools since the post of Headmaster/Headmistress is not a\r\npromotional post and the petitioners would hence be required not only to fulfil\r\nthe eligibility criteria for being recruited to the post but also clear certain\r\nrounds of selection including written examination and/or interview. Thus, the\r\nground taken in the writ petitions of the petitioners being deprived of an\r\nopportunity for being considered for the post of Headmaster/Headmistress is\r\nnot found to be acceptable.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. The related issue of whether the petitioners can invoke Articles 14 and\r\n16 of the Constitution; the right to equality and equal opportunity in matters\r\nof public employment; should be weighed against the right of the State to\r\namend the educational qualification for recruitment to the post of\r\nHeadmaster/Headmistress.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. The object of The National Council for Teachers Education Act, 1993 is\r\nthe establishment of a National Council for Teacher Education with a view to </b><b style=\"font-size: 12pt;\">achieving a planned and co-ordinated development of the teacher education\r\nsystem throughout the country and for the regulation and proper\r\nmaintenance of norms and standards in the teacher education system.\r\nSection 1(4)(c) of the NCTE Act makes it clear that the provisions of the Act\r\nshall apply to all schools imparting pre-primary, primary, upper primary,\r\nsecondary or senior secondary education as well as colleges providing senior\r\nsecondary or intermediate education. Section 12A gives the power to the\r\n‘Council’, as defined under Section 2(c), to maintain a standard of education\r\nin schools by way of regulations which also includes the power to determine\r\nthe qualification of persons for being recruited as teachers.\r\n12. Although the Public Service Commission appears to continue with its\r\nbenchmark requirement of 45% - an assumption brought about by the\r\nrequirement of a second class Master’s degree with Honours of an Indian\r\nUniversity or equivalent qualifications - the contention of inequality is\r\nconsiderably watered down by the stand of the State. The learned Government\r\npleader submits that all recruitments made by the Public Service Commission\r\non the basis of 45% educational qualification requirement have been put on\r\nhold and that the State will soon bring about a similar amendment to the\r\nrelevant Act/Rules. Even if the stand of the State is discounted, the argument\r\nof the petitioners of the impugned Notification creating an artificial distinction\r\nbetween teachers of schools governed by the School Service Commission and\r\nthose by the Public Service Commission fails to satisfy the tests for such\r\nargument. The reasons are as follows.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. The safeguard in Article 14 of the Constitution is to prevent\r\ndiscriminatory treatment of persons who claim to be equals; the right does not\r\nmean giving equal treatment or equal protection of the law to persons who are\r\nunequals and would hence require differential treatment for preserving their\r\nunique and individual characteristics. The image which comes to mind is of 3\r\npersons of unequal height being given 3 ladders to see beyond a wall; the idea\r\nis not to give 3 equal-sized ladders to the 3 persons but giving the tallest\r\nladder to the shortest person and the shortest ladder to the tallest person so\r\nthat all 3 can look beyond the wall (wishfully at a brighter and more equal\r\nfuture).\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. In the present case, the complaint is of the petitioners, who are\r\nAssistant Teachers being put in a separate class from the\r\nHeadmasters/Headmistresses .The reason for the complaint is that the\r\nHeadmasters/Headmistresses are not being subjected to the qualifying\r\npercentage of 50% which has been brought about by the impugned\r\nNotification. This argument is fallacious. As stated above, there is no natural\r\nor automatic progression/promotion from the post of Assistant Teachers to\r\nHeadmasters through intermediate stages. An Assistant Teacher would have\r\nto put himself/herself through a selection process for qualifying to the post of\r\nHeadmaster/Headmistress. The two positions namely, of an Assistant\r\nTeacher and a Headmaster/Headmistress are therefore conceptually and\r\nfunctionally different. Moreover, since the impugned Notification is prospective\r\nin nature, there can be no scope of a person who is presently holding the post\r\nof a Headmaster/Headmistress being subjected to the eligibility criterion of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">50% marks in Master’s Degree from a recognized University at the postgraduate level. The proviso to serial no. 1 (i) under Schedule I of the Selection\r\nRules, 2016, carving out an exception to Headmaster/Headmistress already\r\nappointed in the concerned schools, therefore, does not offend Article 14 of\r\nthe Constitution in the manner complained of or otherwise.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16. The second level of discrimination, as alleged, is between the teachers\r\nappointed by the School Service Commission and those by the Public Service\r\nCommission. The two classes of teachers are distinct and disparate from each\r\nother since the mode and manner of selection as well as appointing\r\nauthorities are wholly different. The petitioners hence cannot complain of\r\nunequal treatment between these two groups of teachers since the two classes\r\nare based on well-defined characteristics and are distinct from each other.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. The reasonableness of the classification of treating the School Service\r\nCommission and Public Service Commission teachers as two separate groups\r\nand the teachers and Headmasters as two separate classes have already been\r\ndiscussed above. The Notification has a rationale and a most credible nexus\r\nwith the object of upgrading the standard of teachers who are to be recruited\r\nas Headmasters/Headmistresses. Requiring a higher academic classification\r\nfor the post of Headmaster/Headmistress cannot be said to be violative either\r\nin logic or in practice. The Supreme Court recognized the importance of\r\nexcellence in academic standards brought about by the excellence of teachers\r\nand staff in State of Orissa vs Mamata Mohanty; (2011) 3 SCC 436. It was\r\nspecifically held in this decision that the quality of teaching staff cannot be\r\ncompromised and that the selection of the most suitable persons is essential\r\nfor maintaining excellence in the standard of teaching in the institution. It\r\nwas further held that Article 21-A has been added to the Constitution for\r\nfacilitating proper and good quality education for children. It should also be\r\nrecognized that the benchmark required for recruitment to certain posts, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">particularly of teachers including Headmasters, has to be raised from time to\r\ntime in sync with the evolving academic performance indicators in the State.\r\nEligibility criteria cannot remain frozen or static for all times to come. A timely\r\nstep for an upward revision can never be taken if a spanner is thrown every\r\ntime the State seeks to change the benchmark eligibility criteria for\r\nrecruitment to certain posts, particularly in schools and colleges.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n19. The above reasons persuade this Court to sustain the impugned\r\nNotification dated 24.03.2017 and hold that the writ petitions do not have any\r\nfactual or legal basis for seeking cancellation of the Notification. All interim\r\norders are vacated.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd1bd03bff7f357f93e6171a68ef07e5f.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-21', 1, '', '', '2022-06-20 17:32:57', '2022-06-21 17:50:37');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1845, 'gLymxchqhAzBD6Xyn4vkkEmIp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Dispute arising out of agreements relating to property used exclusively in trade and commerce would constitute a commercial dispute. Gujarat High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Kushal Limited Vs M/S. Tirumala Technocast Private Limited.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R/Special Civil Application 3572 of 2022 decided on 10 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.V. Anjaria and Justice Samir J. Dave.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. In order to appreciate the issue, looking at the subject\r\nmatter of the suit instituted by the respondent herein against the\r\npetitioner, the prayer was made for possession, declaration and\r\npermanent injunction in respect of property described as nonagricultural land of Revenue Survey No.419, 420/K paiki, Final\r\nPlot No.43, Town Planning Scheme No.10, Rakhiyal, Ahmedabad\r\ntogether with the industrial shed thereon admeasuring 1876.93\r\nsq.mtrs. The property was purchased by the plaintiff from the\r\ndefendant by virtue of registered sale deed dated 4.10.2019.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.1.2. It was thus the case of the plaintiff that before the\r\nproperty was purchased from the defendant, it was used\r\noriginally by the defendant as warehouse for its business. In\r\norder to enable the defendant to find new address for its\r\nbusiness, after the property was sold to the petitioner, the Leave\r\n& Licence Agreement dated 4.10.2019 came to be executed\r\nbetween the parties fixing the period and monthly licence fees.\r\nThe plaintiff pleaded that defendant failed to pay the licence fees\r\nand that the amount due was recoverable from the defendant. It\r\nwas stated that at the request of the defendant the Leave &\r\nLicence Agreement was extended also.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.1.3. It was thereafter claimed that the defendant was\r\nliable to hand over the possession of the suit property upon\r\nexpiry of the licence period. It was further averred that having <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not complied with the repeated requests of the plaintiff in that\r\nregard and having continued with the possession and occupation\r\nof the suit property, the defendant had become a trespasser\r\nafter lapse of period of Leave & Licence Agreement which was\r\nmutually extended.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Learned senior advocate for the petitioner Mr.Mehul Shah\r\nwith learned advocate Mr.Harsh Gajjar for the petitioner\r\nvehemently assailed the impugned order. It was submitted that\r\nthe suit contained the prayer for eviction and the suit in its\r\ncontroversy did not reveal any commercial dispute. Referring to\r\nparagraphs in the plaint it was submitted that the plaintiff\r\nwanted the possession of the suit property alleging that the\r\nstatus of the defendant was that of a trespasser and further that\r\nthe plaintiff wanted the premises for personal use.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4.1. Learned senior advocate for the petitioner further\r\nsubmitted that the finding of the Court below that the suit is said\r\nto be arising out of ‘the agreement’ was erroneous in as much as\r\nthe suit could not be said to be so arising out of the agreement.\r\nHe further submitted that it is only the averments of the plaint\r\nwhich will have to be seen and assist in order to determine the\r\nnature of the suit. It was next submitted that merely because the\r\nprayer was for recovery of immovable property, in absence of\r\nany other characteristics of commercial dispute involved, the\r\nsuit could not be treated as commercial suit. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4.3. On the other hand learned senior advocate Mr.Mihir\r\nThakor assisted by learned advocate Mr.Abhisst Thaker for the\r\nrespondent supported the impugned order highlighting\r\ningredients of definition of the term ‘commercial dispute’ in the\r\nAct. He emphasizes that the property was admittedly used for\r\ncommercial purpose. He submitted that mere fact that the\r\nlicence agreement was entered into, would not take the dispute\r\nout of the concept of commercial dispute when it falls within the\r\ndefinition. Learned senior advocate also took the court through\r\nthe Legal & Licence Agreement and referred to the details of the\r\nproperty. On the basis of the contents, it was submitted that the\r\nproperty was used for commercial purpose. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. In order to appreciate whether the dispute disclosed from\r\nthe plaint could be said to be commercial dispute, the scope and\r\nimport of Section 2 (1) (c) of the Commercial Courts Act, 2015,\r\nhas to be considered first.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5.1. The explanation provides that a commercial dispute would\r\notherwise not cease to be commercial dispute merely because\r\naction involves recovery of immovable property or realisation of\r\nmoney out of immovable property or involve any other relief\r\npertaining to immovable property.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5.2.1. In para 12 (a) of the plaint it was stated that the\r\nproperty was purchased by the plaintiff by registered sale deed\r\nfrom the defendant and that the defendant was using the\r\nproperty as warehouse for its business activities. There appears\r\nyet another averment in para 12 (b) that the Leave and Licence\r\nAgreement may be executed to enable the defendant to locate\r\nnew property for its business activities. In other words, prior to\r\nand on the date of institution of the suit, the suit property was\r\nexclusively used in trade or commerce, for which there was no\r\ngainsaying.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5.3. The sale deed which was executed between the plaintiff\r\nand defendant whereby the plaintiff purchased the suit property <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contained the following description to suggest that the land had\r\nsuperstructure thereon. The sale deed mentioned the property\r\nas non-agricultural land, ‘... more particularly described in the\r\nSchedule hereunder with superstructure... it was further\r\nmentioned that ‘WHEREAS...vendor has decided to sell the said\r\nland with superstructure thereon to the purchaser.’ The\r\nsuperstructure was an industrial superstructure. It is reflected\r\nand was described in the sale deed as ‘1830 sq.meters free hold\r\nnon-agricultural industrial use bearing Revenue Survey No.419,\r\n420/K paiki, Final Plot No.43 of Town Planning Scheme No.10,\r\nRakhiyal, Ahmedabad together with the industrial shade thereon\r\nadmeasuring at 1876.93 sq.mtrs.’ The receipt regarding\r\npayment of sale consideration also mentioned that it included\r\nthe industrial construction standing on the land.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>6. In Ambalal Sarabhai Enterprises Limited (supra) the\r\nSupreme Court held that the dispute to be a commercial dispute\r\nunder Section 2(1)(c)(vii), the agreement between the parties\r\nmust refer to immovable property used or being used exclusively\r\nin trade and commerce. It was held that the word ‘used’ in the\r\nSection was indicative of the requirement that the property is\r\n‘actually used’ and it cannot be either ‘ready for use’ or ‘likely to\r\nbe used’ or ‘to be used’.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6.2. In Gujarat State Warehousing Corporation Vs. Divine\r\nDevelopers being Special Civil Application No.9705 of 2019 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">decided on 24.12.2020 wherein the facts were that the suit was\r\ninstituted by plaintiff for recovery of damages. The case was that\r\nthe property comprising of four godowns were given to the\r\ndefendant for the purpose of storing the groundnut and that the\r\nrentals were not paid. The suit was instituted in the commercial\r\ncourt, pursuant to which, application under Order VII Rule 11\r\nwas filed by the defendant to contend that the letting of the\r\ngodown by the plaintiff to the defendant would not make the\r\ncommercial dispute and the suit was not maintainable as\r\ncommercial suit. This court negatived the contention.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">6.3. The acid test is that the property is used exclusively in\r\ntrade or commerce. Dispute arising out of agreements relating\r\nto property used exclusively in trade and commerce would\r\nconstitute a commercial dispute. The grounds raised in the\r\nplaint in support of the relief prayed could not be said to be </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">germane in concluding and deciding whether the dispute\r\nunfolded is commercial dispute. Nor the prayers made are\r\ndecisive. The commercial court below is entirely right, as\r\nelaborated above, that the material ingredients of ‘commercial\r\ndispute’ in the Section are satisfied in the facts of the present\r\ncase. The suit before the commercial court would be competent\r\nwhen there exists a commercial dispute.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7</span><span style=\"font-size: 1rem; font-family: var(--bs-font-sans-serif);\">. For the forgoing reasons and discussion, the impugned\r\norder of the commercial court, City Civil Court, Ahmedabad\r\ndated 12.1.2022 below Exhibit 27 in Commercial Suit No.3269 of\r\n2021 rejecting the application of the defendant under Order VII\r\nRule 10, CPC could be said to be legal. The challenge in this\r\npetition is meritless and hence it is dismissed.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4a78f42288e77fbac8fab4232180679d.jpeg', '187ef1729730b20922127a054348e84f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-21', 1, '', '', '2022-06-21 17:57:50', '2022-06-21 12:06:55'),
(1882, 'SMbOkJKZgwqWiaHhC3hLqJxVd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Look Out Circular\'\' cannot be sought by the bank for recovery of dues unless economic interest of the country is involved. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Leena Rakesh Vs Bureau of Immigration and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 11213 of 2022 decided on 20 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.G. Pandit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petitioner is before this Court under Article 226 of the Constitution of India, praying for a writ of mandamus or appropriate writ or direction, declaring that the actions of the respondents in issuing an endorsement of cancellation on the passport of the petitioner by respondent No.2 and not permitting the petitioner to travel from Bengaluru to Philippines as highly arbitrary, illegal and without authority of law; for a writ of mandamus or any other appropriate writ or direction, declaring that the actions of respondent Nos.1 and 2 in preventing the petitioner from traveling out of Country on work as highly arbitrary, illegal and violation of Articles 14, 19 and 21 of the Constitution of India. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Learned Senior counsel for the petitioner would submit that petitioner along with her husband had obtained loan from the 3rd respondent-Bank on 19.12.2014. The property which is offered as security to the loan obtained by them stands in joint name of the petitioner as well as her husband Mr.Rakesh Kumar. It is submitted that the petitioner and her husband are due in a sum of Rs.66,11,868/- as on 13.06.2022. It is also submitted that the petitioner and her husband had not paid the installments from September 2019 to the 3rd respondent-Bank. The reason for not repaying the loan is that, due to differences between the petitioner and her husband, they are before the Family Court in M.C.No.5079/2019 praying for a judgment and decree to dissolve their marriage. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Learned Senior Counsel would further submit that, to tender her evidence in the pending divorce proceedings, the petitioner came down to India on 01.06.2022; on 02.06.2022, the petitioner tendered her evidence in the Matrimonial proceedings and on 05.06.2022, she was to travel back to Philippines where she is working. It is submitted that the petitioner had come to India leaving her two minor children aged about 10 and 8 years at Philippines. The petitioner was to leave India on 05.06.2022, but she was prevented from leaving the Country by the first respondent, putting cancellation seal on her passport and she was prevented from traveling to abroad at the request of the 3rd respondent-Bank. The first respondent issued Look out Circular (for short “LOC”) against the petitioner.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Learned Senior Counsel Sri.Shashikiran Shetty would submit  that  action  of  the  respondents  in  preventing  the petitioner from traveling outside the Country is in violation of Articles 14, 19 and 21 of the Constitution of India. It is submitted that the 3rd respondent could not have requested for issuance of LOC as the issuance of LOC is not a recovery proceedings. It is submitted that the 3rd respondent has initiated recovery proceedings and has brought the property offered as security for sale, to realize the dues from the petitioner and her husband. It is submitted that the property was brought to sale on three occasions and the 3rd respondent-Bank could not realize the amount due. Learned Senior Counsel would submit that the value of the property, according to the valuation of the 3rd respondent-Bank is around Rs.75,00,000/- whereas the market value of the property is nearly Rs.1,00,00,000/-. Thus, he submits that when security is available, the 3rd respondent-Bank could not have resorted to request for issuance of LOC, so as to recover the amount from the petitioner. It is further submitted that the 3rd respondent-Bank has not made any effort to recover the amount from the husband of the petitioner.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. Having heard the learned counsel for the parties and on perusal of the writ petition papers, the only point that falls for consideration is as to whether the respondent-Bank is justified in requesting respondent Nos.1 and 2 to prevent the petitioner from travelling outside the Country and to issue LOC against the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. Answer to the above point in the facts of the case would be in the negative for the following reasons: It is an admitted fact that the petitioner and her husband obtained loan of Rs.62,00,000/- from the 3rd respondent-Bank for purchase of Apartment on 19.12.2014. It is also an admitted fact that the petitioner as well as her husband are due in a sum of Rs.66,11,868/- as on 13.06.2022.  It is also to be noted that the 3rd respondent- Bank has initiated recovery action under the provisions of SARFAESI Act and it brought the secured property for sale and no buyers have come forward to buy the secured property. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. The petitioner who is working at Philippines to eke out her livelihood, had come to India to tender her evidence in the matrimonial case pending between the petitioner and her husband. The petitioner tendered her evidence before the Family Court on 02.06.2022, when the petitioner was to leave on 05.06.2022 from India to Philippines, the petitioner was prevented from leaving the Country and cancellation seal was put on her passport and at the request of the 3rd respondent-Bank, LOC was issued against the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. LOC could be issued in terms of O.M. dated 22.02.2021. No one has absolute right to travel abroad or in other words, a person’s right could be curtailed by following the procedure prescribed thereunder. A person could be prevented from traveling abroad or LOC could be issued only in terms of O.M. dated 22.02.2021. The above stated O.M. permits issuance of LOC against a person under various circumstances. In the instant case, no criminal case is registered against the petitioner nor any cognizable offence is alleged.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. It is true that the respondent-Bank is conferred with the power to request respondent Nos.1 and 2 to issue LOC against a person who has committed fraud or default against the Bank. It is for the Bank to take a decision as to, in which case the Bank could request LOC. Just because power is conferred to request issuance of LOC, such power cannot be exercised arbitrarily. Bank has to take a conscious decision by examining as to whether the petitioner’s case falls within the ambit of fraud or default which would affect economic interest of the Country. In the instant case, value of the secured property is more than the amount due from the petitioner to the 3rd respondent-Bank. In that circumstance, 3rd respondent-Bank is not justified in requesting for issuance of LOC. At the same time, respondent Nos.1 and 2 are also not justified in issuing LOC for mere asking by the 3rd respondent-Bank.  Respondent Nos.1 and 2 under O.M. dated 22.02.2021 are required to examine as to whether 3rd respondent-Bank’s request to issue LOC against the petitioner would affect the economic interest of the Country. Mere due of Rs.66,11,868/- cannot be the basis for seeking issuance of LOC by 3rd respondent-Bank that too, restrict the personal liberty of the petitioner to travel outside the Country. The petitioner is not leaving the Country to avoid repayment of loan of the Bank, but the petitioner is employed in Philippines and she had come to India to tender her evidence in a pending matrimonial case. The decision relied upon by the learned Assistant Solicitor General on Dr.Bavaguthuraghuram Shetty case would have no application to the facts of the present case. In the said case, the petitioner was due to the Bank in a sum of Rs.2800.00 Crores and the same would definitely affect the economic interest of the Country. Thus, I am of the opinion that action of the respondents is arbitrary, unreasonable and unfair in the peculiar facts and circumstances of the case. Any action of the State if it is arbitrary and unreasonable is liable to be interfered.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>For the reasons stated above, the writ petition is allowed in part with the following directions:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a) The petitioner is directed to deposit a sum of Rs.10,00,000/- with the 3rd respondent-Bank, which could be adjusted towards the dues and furnish a solvent surety to the satisfaction of 3rd respondent-Bank;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b) On deposit of Rs.10,00,000/- and on providing a solvent surety by the petitioner, the 3rd respondent-Bank shall forthwith request respondent Nos.1 and 2 to withdraw the LOC and to permit the petitioner to travel outside the Country.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2b3cdcade384cd54eb539e927dec5748.JPG', '0405b3da554ff2547bb8716036b86ace.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-29', 1, '', '', '2022-06-29 17:18:27', '2022-06-30 13:00:56'),
(1879, 'wbF5uYyvwQ0dUAb4JzVpgK1Nn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Even if the plaintiff has not sought a relief of possession in a suit for specific performance, the Execution Court can issue a delivery warrant directing the Judgment debtor to handover possession of the property. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Dada Balu Rooge and others Vs Appasaheb Kiran Keste.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 102158 of 2021 decided on 16 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.6.2. The respondents are in money lending business under the style and name M/s Dhanalaxmi Finance Corporation and M/s Laxmi Finance Corporation. The petitioners have borrowed money from these business and has no intention of selling the suit property. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.6.3. The present valuation of the suit property is more than a crore rupees. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.6.4. Since there is no specific prayer for relief of possession, the right to possession does not accrue to the respondents. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.6.5. The suit land is in the name of one Marudevi who has not been impleaded in the suit as such she is not bound by the decree consequently the respondents are not entitled to the suit property.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. Respondents filed IA-1 in the said execution proceedings seeking appointment of Court Commissioner to execute a registered sale deed in favour of respondents. The said application came to be allowed on 30.08.2018. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. The Execution Court taking note of the fact that a draft sale deed has been furnished and no objections have been filed by the petitioners was of the opinion that in terms of the decree passed in O.S No.65/2010, the petitioners are liable to execute a sale deed in respect of the suit schedule property in favour of the decree holders as per the agreement dated 29.03.2008. The execution Court not being empowered to go beyond the decree was of the opinion that it was just and proper to appoint a Court Commissioner for the purpose of executing a registered sale deed and as such appointed First Division Assistant Sri.Yalagouda Sidagouda Patil as a Court Commissioner. While doing so, the Execution court was of the opinion that the contention of the petitioners that their advocate had cheated them and played fraud on them could not be gone into in the execution proceedings.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. In pursuance of the appointment of Court Commissioner, Commissioner warrant was issued. The said warrant was executed by the Commissioner by executing two sale deeds in favour of the respondents on 27.12.2018. Pursuant thereto, commissioner’s report was filed placing on record the execution of the commissioner warrant and compliance of the direction given by the execution court. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. It is thereafter that on 19.01.2019 the petitioners filed objections to the commissioner’s report contending that sale deed was in contravention of Section 79-A and 79-B of the Karnataka Land Reforms Act. It is further contended that the said land was standing in the name of mother of Judgment debtor No.1 viz. Marudevi and there was no direction for execution of sale deed of the land of Marudevi in favour of the respondents. In the petition, though the decree holder had submitted one draft sale deed, the commissioner has prepared two sale deeds.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16. In view of the said submissions, the points that would arise for determination are as under: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. Whether the provisions of Order 21 Rule 34 are mandatory inasmuch as whether there is a requirement for the execution Court to provide an opportunity to the Judgment debtors to file objections to the draft sale deed while executing the decree for specific performance and whether it is mandatory for the execution Court to approve the draft of the sale deed provided by the decree-holder by a reasoned order? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. What are the nature of objections that could be filed by a Judgment debtor requiring consideration under Order 21 Rule 34 of CPC?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. When the plaintiff had not sought relief of possession in a suit for specific performance but had only restricted the prayer for the execution of the sale deed, could the execution Court issue a delivery warrant directing handing over of possession to the decree-holder and/or would the issuance of the delivery warrant as above amount to going beyond the decree for specific performance? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. Whether in the present facts and circumstances, there is a requirement for this Court to intercede in the matter? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. What order?<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18. ANSWER TO POINT NO.1: Whether the provisions of Order 21 Rule 34 are mandatory inasmuch as whether there is a requirement for the execution Court to provide an opportunity to the Judgment debtors to file objections to the draft sale deed while executing the decree for specific performance and whether it is mandatory for the execution Court to approve the draft of the sale deed provided by the decree-holder by a reasoned order?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.2. In terms of Sub-rule (1) of rule 34 of Order 21, it is for the Judgment debtor to execute the necessary document or endorsement. In the event of the Judgment debtor failing to do so, the Decree holder has been provided a right to prepare a draft of the endorsement or document and produce the same to the executing Court. Executing court thereafter is required to serve a copy thereof on the Judgment debtor together with a notice requiring his objections to be made within such time as the court fixes in that behalf. In  the  event  of  objections  being  filed,  such objections would have to be considered by the Court and orders passed either approving the draft or refusing the draft on the basis of the objections. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.3. If any alterations are to be made decree holder is required to provide the draft with alteration and the executing court may appoint any officer to execute the document. If the said document is required to be registered, the manner of registration also has to be provided in terms of Sub-section (2) the Hon’ble Apex Court in the case of Rajbir v. Suraj Bhan reported in (2022) SCC Online SC 270 has considered the requirement of Order 21 Rule 34 of CPC </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.4. A perusal of the above paragraphs would indicate that the Hon’ble Apex Court has categorically held that the procedure prescribed under Order 21 Rule 34 of CPC cannot be diluted as the same would have a deleterious consequence and as such has categorically held that it is for the execution Court to necessarily and mandatorily follow the principles of Rule 34 of Order 21 CPC. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.5. This being so, for the reasons that the document without being executed on behalf of the Judgment debtor by the court has, in fact, executed in the name of the Judgment debtor and as such, the Judgment debtor is required to be given an opportunity to object to the contents of the document proposed to be executed in his name, more so when the document is being prepared by the decree holder who could include any particular covenant or recital in the document which may be to the detriment of the Judgment debtor or cause any inconvenience to the Judgment debtor. While decreeing the suit for specific performance, the Court only determines the eligibility of the plaintiff to receive a decree in his favour. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.6. The contents of the sale deed or a document to be executed subsequent to an agreement which has been specifically enforced would normally be decided between the parties inter se after negotiation, but in a case where the parties are in dispute, the provision of Rule 34 of Order 21 of CPC envisages the manner in which a decree may be enforced in an execution court.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.9. In the event of any objection/s being accepted, suitable changes in the document submitted by the decree-holder is required to be carried out in a time-bound manner and the officer appointed by the Court or otherwise is required to execute the document and register the document, if under the law it is mandated that the such a document is required to be registered. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.10. In view of the decision of the Hon’ble Apex Court and in view of the above discussion, it is clear that requirements of Rule 34 of Order 21 is mandatory and is required for the executing Court to follow and get followed the requirement of Order 34 of Rule 21 of CPC. Any violation of the said requirements would vitiate the execution proceedings giving rise to challenge to any order passed in violation of such requirement. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.11. I answer Point No.1 by holding that the provisions of Order 21 Rule 34 are mandatory. The Execution Court is required to get served a copy of the property document to be executed by the Judgment debtor, provide an opportunity to the Judgment debtor to file objections to the draft document, thereafter consider the objections, make such alterations as may be required in the document and then if the document is required to be registered, get the same registered. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19. ANSWER TO POINT NO.2: What are the nature of objections that could be filed by a Judgment debtor requiring consideration under Order 21 Rule 34 of CPC?<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19.1. There cannot be a straight jacket formula or straight jacket requirement of the nature of objections that could be filed. This Court cannot enumerate the same and or detail the same so as to pinpoint the contents of the said objections. Suffice it to however say that the Judgment debtor could raise objections as regards whether the recitals in the document to be executed are correct or not; whether any of the covenants has been agreed to between the parties or not; or whether any of the covenants which has been introduced in the document is contrary to the agreement; whether any of the recitals or covenants would cause any detriment to the Judgment debtor and if so, in what manner. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19.2. It is at that stage permissible for a decree-holder to justify the requirement of a particular recital or covenant and for the executing court to decide on the validity or otherwise of the objections. While doing so, the executing court is required to always keep in mind the purpose of execution being the implementation and/or execution of a Judgment and decree which has already been passed. The purpose and intent of the executing court should always be to execute the said Judgment and decree in a time-bound manner.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20. ANSWER TO POINT NO.3: When the plaintiff had not sought relief of possession in a suit for specific performance but had only restricted the prayer for the execution of the sale deed, could the execution Court issue a delivery warrant directing handing over of possession to the decree-holder and/or would the issuance of the delivery warrant as above amount to going beyond the decree for specific performance?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20.11. A perusal of Sub-section (3) of Section 28 indicates that if the purchaser or lessee pays the purchase money as directed, then such a purchaser would be entitled to the execution of the  proper  conveyance  or  lease,  delivery  of possession or partition and separate possession and further that no separate suit in respect of any relief which could be claimed under the Section would lie at the instance of the vendor, purchaser, lessor or lessee.  </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20.13. Though an application in IA-2 has not been as such filed under Subsection (3) of Section 28 of the Specific Relief Act, the net effect and purport of the relief sought for in IA no.2 comes within the ambit and purview of sub-clause (b) of Subsection (3) of Section 28 of the Act, merely because the provision is not properly stated the decree-holder cannot be deprived of the benefits thereof.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20.15. The trial Court having held that the plaintiff was entitled for a decree of specific performance what was only required of a decree holder is to comply with the requirements of the agreement of sale and the directions contained in the decree. Once the same is done in terms of Subclause (b) of Subsection (3) of Section 28 of the Act, the decree holder would be entitled for delivery of possession or partition or separate possession of the property on execution of conveyance or lease. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20.16. Hence, I answer point No.3 by holding that even if the plaintiff has not sought a relief of possession in a suit for specific performance, but had only sought the prayer for execution of the sale deed, the Execution Court can issue a delivery warrant directing the Judgment debtor to handover possession of the property, subject matter of specific performance to the decree holder, upon the Decree-Holder performing all obligations as stated in the decree. Such an order would be within the purview of Subsection (3) of Section 28 of the Specific Relief Act, 1963 and would not amount to going beyond the decree for specific performance.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>21. ANSWER TO POINT NO.4: Whether in the present facts and circumstances, there is a requirement for this Court to intercede in the matter?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>21.2. The issuance of delivery warrant upon decree holder having complied with the directions of the decree would come within the purview of clause (3) of Subsection 3 of Section 28 of the Specific Relief Act and same being a statutory right which comes into force only after a decree is passed and the terms of the decree are complied, the issuance of delivery warrant in pursuance of decree of specific performance of sale of property </b></font><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">cannot be said to be an order which goes beyond the decree.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>21.3. The petitioner had earlier challenged the order passed on IA No.1 directing the Commissioner to execute a sale deed. The sale deed having been registered and executed in W.P.No.10877/2018 challenging the orders on IA-1 came to be dismissed as infructuous, the said order has attained finality. Since the writ petition has been withdrawn and attained finality, this Court cannot and would not be required to go into the validity or otherwise of the orders passed on IA-I. 21.4. Though much of the arguments were advanced in relation thereto and the same has been considered by this Court in point No.1 above, the same would not enure to the benefit of the petitioners now. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>21.5. The only issue being as regards whether a delivery  warrant  could  have  been  issued consequent to allowing of IA No.2 has been dealt with in point No.3 above, I have held that execution Court has necessary powers to issue a delivery warrant, there are no particular sustainable grounds which have been raised in the present petition. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The writ petition stands dismissed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9bcbe37da1926de757d36cbce509332c.jpeg', 'ff08d9a32aa5f923ed86cf295ac80b12.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-29', 1, '', '', '2022-06-28 18:52:41', '2022-06-29 13:55:39');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1847, 'MO3pR3vd6xSF9RCEusmP2vSGG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Causing death by negligence. Section 304A, IPC. Architect who designed the house cannot be prosecuted for death of construction worker in on-site accident. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sri Vishwas V Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 5609 of 2022 decided on 1 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court calling in question\r\nproceedings in C.C.No.28916 of 2021 pending before the Chief\r\nMetropolitan Magistrate, Bangalore arising out of Crime No.249\r\nof 2020 registered for offences punishable under Section 304A\r\nr/w Section 34 of the IPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Brief facts leading to the filing of the present petition, as\r\nborne out from the pleadings are as follows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is an Architect Engineer by profession and is\r\nthe co-founder of Crest Architects, Bangalore. One\r\nChandrashekar, owner of a residential site situated at 20th Main,\r\n4th Block bearing No.403 of Nandini Layout approaches the\r\npetitioner to design his house. Upon inspecting the property\r\npersonally, the petitioner took the dimensions of the property\r\nand owner’s requirements for drawing up a design. The owner of\r\nthe site agreed to the terms of the petitioner and entered into an\r\nagreement to design his house on 25-09-2019. In terms of the\r\nagreement, the petitioner fulfilled the requirement of the owner\r\nas per law. The construction of the building and the plan of\r\naction for such construction was entrusted to a contractor by\r\nthe site owner. The petitioner had only drawn up the design and\r\nhad also visited the site on several occasions to see whether the\r\nconstruction was coming up according to the design. The visits,\r\naccording to the petitioner were once in a month.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. On 10-10-2020 an employee by name Mukesh who was\r\nworking under the contractor died due to electrocution while </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">undertaking construction in the site. It is averred by the\r\npetitioner in the petition that he came to know about the\r\nincident so happened on 10-10-2020 only when he attended\r\nhouse warming ceremony of the house on an invitation by the\r\nowner in the month of February 2021. On 17-02-2022 the\r\npetitioner comes to know of a crime registered against him by\r\nthe Police in Crime No.249 of 2020. The petitioner was accused\r\nNo.2 and the owner of the building Mr. Chandrashekar was\r\naccused No.3. The allegation in the crime was concerning the\r\nincident that happened on 10-10-2020 i.e., the death of the\r\nemployee Mr. Mukesh due to electrocution. After registration of\r\nthe crime, the Police conducted investigation and filed a charge\r\nsheet only against the petitioner dropping the owner who was\r\naccused No.3 for offences punishable under Section 304A r/w\r\n34 of the IPC. It is at that juncture the petitioner has knocked\r\nthe doors of this Court in the subject petition calling in question\r\nthe entire proceedings in C.C.No.28916 of 2021.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. The learned counsel appearing for the petitioner would\r\nvehemently argue and contend that the allegation for offence\r\npunishable under Section 304A IPC cannot be laid against the\r\npetitioner, as the petitioner was only an Architect who designed\r\nthe house and it was for the contractor or the owner of the\r\nproperty to have taken such caution to prevent such mishap\r\nviz., death of the employee. The owner of the property is let off\r\nwhile filing the charge sheet against the petitioner who is the\r\nArchitect and has nothing to do with the mishap. He would seek\r\nquashment of the proceedings.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. On the other hand, the learned counsel appearing for\r\nthe 2nd respondent/complainant who is the relative of the\r\nemployee would seek to justify the action of the police in filing\r\nthe charge sheet against the petitioner, as according to him the\r\ndesign provided by the petitioner was the cause for the death of\r\nthe worker and would submit that since charge sheet is filed, it\r\nis for the petitioner to come out clean. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The afore-mentioned facts are not in dispute. On\r\n10.10.2020 an unfortunate incident takes away the life of a\r\nworker who was working under a contractor entrusted with the\r\nwork of construction of the house of accused No.3, owner. The\r\npetitioner was one who had initially visited the property and had\r\ndrawn up design of the house and had nothing to do after the\r\nact of the petitioner giving the design in terms of the agreement\r\nso entered into between the owner and the petitioner. The crime\r\nis registered for offences punishable under Section 304A\r\narraigning the petitioner/charged Architect as accused No.2,\r\nowner of the house as accused No.3 and the contractor as\r\naccused No.1 under whom the worker was performing the duty\r\non that day. The police after investigation filed a charge sheet <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dropping the name of accused No.3/owner of the property while\r\nhauling up the petitioner as accused No.2 for offences\r\npunishable under Section 304A of the IPC.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 304A of the IPC has two components in it. The result of\r\ndeath should be out of rash or negligent act by the accused.\r\nSection 304A of the IPC mandates that whoever causes death of\r\nany person by doing any rash or negligent act not amounting to\r\nculpable homicide be punished. Therefore, the act should be\r\neither rash or negligent.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. The petitioner, as stated earlier, is an Architect who\r\nhad designed the building and had given it to the owner in terms\r\nof the agreement. The owner had entrusted the work of\r\nconstruction to accused No.1 under whom the worker on the day\r\nworking and unfortunate incident of his death happened. It </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cannot be said that design of the house by the petitioner was an\r\nact of rash or negligence that had caused the death of the\r\nworker. It would be too far to stretch Section 304A of the IPC to\r\ncontend that a person who had designed the house is\r\nresponsible for death of a worker while undertaking construction\r\nunder a contractor </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Apex Court clearly holds that cause of death should be a\r\ndirect consequence of the act of the accused and that should be\r\nan act either rash or negligent and proximate to the cause of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">such death. By no stretch of imagination the petitioner can be\r\nhauled into the proceedings for offences punishable under\r\nSection 304A of the IPC in the light of the fact that he was in any\r\nway neither responsible for construction nor was he present at\r\nthe place of construction nor even had any proximity to the act\r\nwhich was either rash or negligent. The Apex Court in the case\r\nof STATE OF HARYANA v. BHAJAN LAL has clearly held the\r\nparameters of exercise of jurisdiction under Section 482 of the\r\nCr.P.C.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The first clause, as held by the Apex Court in the aforesaid\r\njudgment, is clearly applicable to the facts of the case at hand,\r\nas taking note of the fact cannot be construed to become an\r\noffence as alleged. The facts of the case at hand clearly indicate\r\nthat no offence under Section 304A of the IPC could be laid\r\nagainst the petitioner and, therefore, there is need to exercise\r\njurisdiction of this Court under Section 482 of the Cr.P.C. to\r\nterminate such proceedings against the petitioner. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. Order: </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Writ Petition is allowed and the proceedings in\r\nC.C.No.28916 of 2021 pending before the Chief\r\nMetropolitan Magistrate, Bangalore stand quashed\r\nqua the petitioner.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) It is made clear that the observations made in the\r\ncourse of the order would not influence or bind any\r\nproceedings or trial against any other accused in\r\nC.C.No.28916 of 2021. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '145a595d0caa8b8a11a0e9ba229a5ddf.jpeg', 'ce2b3489cbe096d14f2bd11ecfcf2f1d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-21', 1, '', '', '2022-06-21 18:46:12', '2022-06-22 01:55:18'),
(1878, 'aE4xH4QeLcW7M2QNdnvSDZZmD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘’Only under extreme circumstances handcuffing of an accused can be resorted to.’’ Karnataka High Court orders compensation of Rs. 2 lakhs to law student who was illegally handcuffed by the Police.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Suprit Ishwar Divate Vs The State of Karnataka and other.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 115362 of 2019 decided on 10 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The petitioner claims to be a law student studying in Shikshan Parasrak Mandal’s Law College, at Raibag. Certain disputes arose between the petitioner and one Babu Annappa @ Annu Gurav in respect of a mortgage deed executed in respect of agricultural lands belonging to the petitioner. Pursuant thereto, five criminal cases were filed against the petitioner for offences under Section 138 of Negotiable Instruments Act, 1881 on account of dishonour of cheques issued in pursuance of the said mortgage. As regards the said dishonor of cheques, Babu Annappa filed five criminal proceedings viz., C.C.Nos.531 to 535/2019 before II Additional Civil Judge and JMFC., Chikodi at Chikodi.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 3. The petitioner was arrested in C.C.No.533/2019 in furtherance of non-bailable warrant issued by the II Additional Civil Judge and JMFC., Chikodi vide order dated 10.04.2019 by the Respondent No.3-Police Sub-Inspector, Ankali Police Station between 1.00 p.m. to 1.30 p.m., in the Market Place at Ankali, when the petitioner is stated to have been returning from his College after writing his internal exams.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. The petitioner claims that the petitioner was handcuffed and paraded with handcuffs in Ankali Town and later on was taken in a K.S.R.T.C Bus in handcuffs from Ankali Police Station to Chikodi Police Station, without producing the petitioner before the Court. The petitioner claims that the said incident has been video recorded and a compact disc in relation thereto has been produced by the petitioner. The petitioner moved a bail application in the said proceedings. However, the same was rejected and the petitioner was remanded to Judicial custody. Subsequently, the petitioner was convicted by the II Additional Civil Judge and JMFC., Chikodi in all five criminal cases, as regards which, appeals were filed by the petitioner in Criminal Appeal Nos.362 to 366/2019 challenging the said order of conviction, wherein the 7th Additional District and Sessions Court, Belagavi had stayed the order of conviction and sentence vide order dated 19.10.2019.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The petitioner claims that despite the stay, respondent No.3 officials were illegally arresting and detaining the petitioner, more particularly, on 05.11.2019, the petitioner is alleged to have been detained and taken to the Ankali Police Station stating that an execution warrant has been issued against the petitioner. But later on, he was released when the advocate of the petitioner approached the Ankali Police Station. The petitioner further claims that the petitioner was once again called by respondent No.3 officials to attend the Ankali Police Station on 08.11.2019 and further that the police attached to respondent No.3 have been visiting the house of the petitioner in civil dress and have threatened him. It is on the basis of the above, the petitioner claims that his family life has been ruined so also his reputation. The petitioner’s fundamental rights have been violated by the respondents abusing their official position and it is in that background that the petitioner is before this court seeking for the aforesaid reliefs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Sri.Santosh Pujari, learned counsel for the petitioner submitted that:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.1. The respondent No.3 and police attached to the Ankali Police Station have been acting arbitrarily and illegally with ulterior motives;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 6.2. That the offences being bailable and the petitioner’s counsel having filed an exemption application, non-bailable warrant ought not to have been issued against the petitioner;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.3. At the time of arrest of the petitioner, the petitioner ought not to have been handcuffed nor was he required to be paraded in Ankali Town and taken in KSRTC bus from Ankali Police Station to Chikodi Police Station;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.4.<span style=\"white-space:pre\">	</span>The punishment for the offences of dishonor of cheques, even if convicted, is a maximum of two years. Thus, the petitioner ought not to have been handcuffed;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.9.<span style=\"white-space:pre\">	</span>On the basis of the above, he submits that there is no order permitting handcuffing of the petitioner. Therefore, handcuffing of the petitioner and parading him is violative of Article 21 of the Constitution of India as also violative of the principles and directions issued in the aforesaid decisions and as such, the petitioner is required to be compensated as against illegal acts of the respondents by awarding compensation of Rs.25 lakhs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. On the basis of the above submissions, the points that would arise for consideration/determination are:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space:pre\">	</span>Whether the accused who is arrested can be handcuffed? If so, under what circumstances?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space:pre\">	</span>If there is any violation by the Arresting Officer, would accused be eligible for compensation?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>On what basis, is the compensation required to be determined and paid?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>What Order?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>Answer to Point No.1: Whether the accused who is arrested can be handcuffed?  If so, under what circumstances?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">10.1. Section 46 of the Code of Criminal Procedure, 1973  (for  short,  ‘Cr.P.C.’)  deals  with  the </font></span><meta http-equiv=\"Content-Type\" content=\"text/html;charset=UTF-8\"><font face=\"Calibri, sans-serif\">manner of making an arrest. </font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.2. A perusal of the above provision would indicate that a person can be arrested by touching or confining the body of the person to be arrested, unless, there is a submission to the custody by word or action. It is only when there is a resistance to the arrest or evasion of arrest that the Police Officer may use all means necessary to effect the arrest.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.9. The Hon’ble Apex Court in PREM SHANKAR SHUKLA VS. DELHI ADMINISTRATION reported in (1980) 3 SCC 526 made it is constitutional mandate that no prisoner shall be handcuffed or fettered routinely or merely for the convenience of the custodian or escort. This was declared to be law by eminent libertarian, Justice V.R.Krishna Iyer in the said judgment. The Hon’ble Apex Court went on to hold that the only circumstance which validates incapacitation by irons is for preventing the escape of the arrestee or the convict.  Where an arrestee or a convict can be prevented from escape by increasing the security, the Hon’ble Apex Court held that such an increase is to be a norm rather than handcuffing.  Even the offence for which the arrestee has been charged would not be a ground for handcuffing the arrestee, however grave the offence may be, if the arrestee were not looking at escape and/or were not given to violent behavior putting the life and liberty of others at risk, such a person could not be handcuffed. The Hon’ble Apex Court mandated that if an arrestee were required to be handcuffed, the reasons for such handcuffing has to be recorded in writing and when the arrestee was produced before the Court, the Hon’ble Apex Court made it a duty of the Court to enquire with the said arrestee as to whether he had been handcuffed or not. If handcuffed, the Court shall go through  the  reasons  recorded  and  thereafter approve the reasons or reject the same. If the Court were to reject the same, the Court would have to put on notice the Arresting Officer and others that arrestee should not henceforth be handcuffed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.12. In the present case, we are concerned with the arrest of a person and handcuffing of a person at that particular point of time. Even though the facts in Prem Shankar Shukla’s case are different from the present case in as much as that case dealt with a convict being transported from Jail to the Court and being produced before the Court, the principles as stated therein by the Hon’ble Apex Court would apply to the present case. Similar is the situation as regards the decision of the Hon’ble Apex Court in the case of STATE OF MAHARASHTRA VS. RAVIKANT S.PATIL [(1991) 2 SCC 373] and M.P.DWIVEDI & ORS where under trial prisoners were being produced before the Court.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.16. A perusal of the above decisions indicates that none of the cases relied upon by Sri.Santosh Pujari, learned counsel for the petitioner are relating to the handcuffing of an accused. Few of them are relating to under trial prisoners and the others are relating to the humiliation by the Police Officer after arrest and/or while in jail. Thus, none of the said decisions would ex facie apply to the present case.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.22. Hence, I answer Point No.1 by holding that an accused who is arrested can normally not be handcuffed. It is only under extreme circumstances that handcuffing of an accused can be resorted to. When such handcuffing is made, the Arresting Officer is required to record the reasons for handcuffing, which would have to sustain the scrutiny of the Court. Whenever an accused is produced before the Court of law, it would be required of the Court to enquire if the accused had been handcuffed or not and if handcuffed, to ascertain the reasons recorded by the Arresting Officer on the justifiability on the same.  The reason of lack of personnel to secure the accused has already been negated by the Hon’ble Apex Court. If there are such lack of personnel as submitted by the learned HCGP, it would but be required for the State to fill up all the vacant posts and even if that were not to be sufficient, to recruit more persons so that the duty involved above is discharged in a proper and effective manner without violating the rights of the person arrested. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>Answer to point No.2: If there is any violation by the Arresting Officer, would accused be eligible for compensation?<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.3. In the event of any law restricting the right to liberty, the same would have to stand the test of the Constitution. Section 46 of the Cr.P.C. has afore detailed deals with how arrests have to be made and Section 49 of Cr.P.C deals with no unnecessary restraint of a person more than what is required to prevent his escape. The relevant provisions of the Karnataka Police Manual in this regard have also been referred to hereinabove.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.4. The Hon’ble Apex Court in the case of NILABATI BEHERA (SMT.) ALIAS LALITA BEHERA VS. STATE OF ORISSA AND OTHERS REPORTED IN (1993) 2 SCC 746 has also dealt with the aspect of public law relating to public functionaries when the public functionaries were to violate any fundamental right, more so the right of personal liberty under Article 21 of the Constitution of India. The Apex Court after going through most of the decisions on the said point, came to a conclusion that a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights and that such a claim would be based on strict liability made by resorting to a constitutional remedy, provided for the enforcement of a fundamental  right.   </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.7. In view of the above, I am of the considered opinion that the respondent-State would have to make payment of compensation to try and make good the loss caused to the petitioner. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.8. The measure of damage would have to be on the basis of any evidence and documents produced by the petitioner. Hence, I answer Point No.2 by holding that if there is a violation by the Arresting officer in putting handcuffs on the petitioner, the petitioner would be eligible for compensation.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>Answer to Point No.3: On what basis, is the compensation required to be determined and paid?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Compensation which is required to be paid as aforesaid being a Public Law Remedy, there cannot be a straitjacket formula which could determine the amount of compensation that has to be paid. Be that as it may. The compensation which is required to be paid is by applying the principles of strict liability. While awarding compensation, the Court would have to take into consideration the loss/damage that might have been caused to the person who has been handcuffed to recompensate him/her for such damage. Apart there from, the Court would also have to consider the imposition of compensation as a deterrent to the Police Officers who do not discharge their duties in a proper manner and/or violate the applicable law. The imposition of compensation should also be such that the concerned Police Officers should follow the applicable law in both letter and spirit and are put on notice that non-following of the applicable law could result in they being liable to make payment of monetary compensation to the arrestee.  Though the State could be required to make payment of compensation, the compensation being paid on account of an officer of the State like a Police Officer not following the applicable law, the State would be at liberty to recover the same from the concerned defaulter/defaulters.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>Answer to Point No.4: What Order:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.5. In the present case, there being no justification which has been provided by the respondents for handcuffing the petitioner since neither any objections are filed nor is any affidavit filed by the Arresting Officer. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.6. It is clear that from and on behalf of the State there is no defence to the allegations made against the Arresting Officer. The compact disc which has been produced has also been dealt with hereinabove. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.7. Apart from the petitioner stating that the petitioner is a student of Law and that his reputation has got affected adversely by him being handcuffed, there is no other statement made or evidence produced by the petitioner to establish the nature and kind of damage caused. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.8. The petitioner has claimed a sum of Rs.25 lakhs as a compensation, I am of the considered opinion that the said amount cannot be awarded taking into consideration that the petitioner was a student and that the arrest was made in furtherance of non bailable warrant which had been issued; the arrest being proper; the only question being handcuffing of the petitioner not being required, I deem it fit to award a sum of Rs.2 lakhs as compensation to the petitioner payable by the State within a period of six weeks from the date of receipt of a copy of this order with liberty to the state to recover the same from the delinquent officers.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space:pre\">	</span>The Writ Petition is allowed.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>iii.<span style=\"white-space:pre\">	</span>No person whether he be an accused, under trial prisoner or convict shall be handcuffed unless the reason for the same is recorded in the case dairy and/or the relevant record as to why such a person is required to be handcuffed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>iv.<span style=\"white-space:pre\">	</span>If any accused is produced before a Court after arrest, it shall be the duty of the said Court to among other things enquire as to whether  the  said  person  had  been handcuffed or not. If the person were to respond in the affirmative, the Court would have to ascertain the reasons for such handcuffing and to decide on the validity or otherwise of such handcuffing.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>v.<span style=\"white-space: pre;\">	</span>If an under trial prisoner is produced before the Court, it shall be the duty of the Court to enquire as to whether he was handcuffed or not and then if the person were to respond in the affirmative, the Court would have to ascertain the reasons for such handcuffing and to decide on the validity or otherwise of such handcuffing. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>vii.<span style=\"white-space:pre\">	</span>As far as possible, permission to handcuff an under-trial prisoner would have to be taken prior to the production of the under trial prisoner before the Court and obtain an order for handcuffing from the said Court. If no such permission is applied for and under trial prisoner were to be handcuffed, the concerned police officer would be taking a risk of such handcuffing being declared illegal and action being taken against them.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd044013a6bce3651765796dd8ebbe84a.jpeg', '889f7618dac6de76e506a65da50059d0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-29', 1, '', '', '2022-06-28 17:52:54', '2022-06-29 08:28:32'),
(1850, 'iDefeGcVoIWBChWMAytz8o4HB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mere custody of firearm without awareness of the nature of such possession cannot fall within the ambit of sections 3 and 25 of the Arms Act, 1959. Bombay High Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Dr. Leena Ashay Nandeshwar Vs The State of Maharashtra and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 4791 of  2019 decided on 15 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Milind N. Jadhav and Justice S.S. Shinde.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The above writ petition is filed for quashing of proceedings\r\narising out of Special L.A.C. No.8 of 2016 registered with Sahar Police\r\nStation, Mumbai dated 04.12.2016 under sections 3 and 25 of the\r\nIndian Arms Act, 1959 (for short \"the said Act\") against the Petitioner.\r\nPetitioner is M.D. in Ayurvedic and permanent resident of Sangli. She\r\nplanned a tour in December vacation to Kochi along with her husband\r\nand children; flight tickets from Mumbai to Kochi were booked for\r\n03.12.2016 at 15.20 hrs.; during the security check at the Airport one\r\nlive cartridge was detected and recovered from the hand baggage of\r\nthe Petitioner by ASI Daya Ram Meena while screening. Petitioner\r\nwas directed to open her bag and after opening the bag officers found\r\none \"K.F.\" and \"32S&WL\" live cartridge. Petitioner informed the\r\nsecurity that she had no knowledge as to how the alleged live cartridge\r\nwas found in her bag and at that stated that the same could pertain to\r\nthe toy gun of her daughter who might have put it in the bag while\r\nplaying. Petitioner informed that she had no knowledge or nexus with\r\nthe alleged cartridge found in her bag. Petitioner further informed that\r\nshe had no arms licence for holding any weapon. It is pertinent to\r\nnote that apart from the live cartridge no fire arm or weapon was\r\nrecovered from the bag belonging to the Petitioner.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. On the next day i.e. 04.12.2016, First Information Report\r\n(\"FIR\") was registered against the Petitioner under sections 3 and 25\r\nof the said Act. On 05.12.2016, Petitioner visited the police station\r\nand furnished further information, inter alia, stating that she was a\r\nresident of Sangli and adjacent to her residence was a police centre\r\nand firing range and the alleged bullet may have been found and\r\npicked up by her minor daughter and carried it to her house and kept\r\nin her hand bag. This was the only theory put forward by the\r\nPetitioner in her defence.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Mr. N.U. Khan, learned counsel appearing for the Petitioner\r\nsubmits that on a plain reading of the chargesheet, it clearly appears\r\nthat the Petitioner has disclosed all such necessary and probable\r\ninformation with respect to the live cartridge found in her hand bag;\r\nthat she had no nexus or knowledge as to how it came to be planted or\r\nfound in her bag and one of the reason adduced by the Petitioner\r\nwould be that it was found by her minor daughter in the vicinity of the\r\npolice training center and firing range next to her residence in Sangli <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and may have been picked up and kept in the hand bag. He submits\r\nthat the Petitioner has never claimed to be inconscious possession of\r\nthe live cartridge as the Petitioner came to know for the first time\r\nabout its presence in her hand bag when it got detected during\r\nscreening; further its presence in the Petitioner\'s hand bag was not to\r\nher knowledge and it was a case of the complete inadvertance and\r\nhence the Petitioner\'s case cannot be covered under the provisions of\r\nsections 3 and 25 of the said Act; that the Petitioner and her husband\r\nare qualified doctors having no criminal antecedents; both did not\r\npossess any arms licence for possessing a weapon; the family of the\r\nPetitioner had embarked upon a vacation tour and thus on detection of\r\nthe live cartridge it cannot be held that the Petitioner was in conscious\r\npossession of the same and therefore the Petitioner\'s plea be\r\nconsidered for quashing of the proceedings.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. PER CONTRA, Ms. A.S. Pai learned PP appearing on behalf\r\nof the State has drawn our attention to the chargesheet filed in the\r\npresent case and contended that during the investigation the\r\nPetitioner has also informed that the live cartridge could belong to one\r\nof their family friend namely Piyush Thakkar who was in possession of\r\nan arms licence and weapon and on further investigation of Piyush\r\nThakkar it was found that the live cartridge did not belong to him as it\r\nwas not in consonance with his 9mm German Pistol; that the live </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cartridge was analyzed by the Forensic Science Laboratory in its report\r\nand possession of the same was unauthorized in the hands of the\r\nPetitioner; hence, prima facie the case for contravention of the\r\nprovisions of sections 3 and 25(1B)(a) of the said Act was made out\r\nagainst the Petitioner.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. In the present case, it is seen that the Petitioner nor her\r\nhusband possess an arms licence; at the time of recovery of the live\r\ncartridge from the hand bag of the Petitioner, no weapon or firearm\r\nwas found or recovered. From the reading of the chargesheet it is\r\nthat investigation has been completed from all possible angles. It is\r\nseen that Petitioner nor any of her family members possess any arms\r\nlicence or weapon so as to consider the possibility of the live cartridge\r\nas belonging to any of them. Further for the applicability of the\r\nprovisions of section 3 of the said Act possession of the live cartridge\r\nneeds to be established as being in \"conscious possession\" of the\r\nPetitioner and that the Petitioner had knowledge of the same being\r\ncarried in her hand bag. The explanation given by the Petitioner that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">her residence in Sangli being adjacent to the police training centre and\r\nfiring range is not doubted by the prosecution and hence the\r\npossibility of the cartridge being picked up by her minor daughter and\r\nput in her hand bag cannot be ruled out. It is clear that the Petitioner\r\nherself came to know about the presence of the live cartridge in her\r\nbag only when it was detected during screening and prior to that the\r\nPetitioner had no knowledge about its presennce. It is seen that the\r\nterm \"possession\" used in sections 3 and 25 of the said Act refer to\r\n\"conscious possession\" and not unconscious possession or inadvertent\r\npossession\" or possession which is not to the knowledge of the person.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. The Supreme Court in the case of Sanjay Dutt Vs. State\r\nthrough C.B.I., Bombay (II)\r\n1\r\n has clearly held that the possession of the\r\nfire arm under the said Act must be conscious possession with the\r\nknowledge of and requisite mental element and mere custody without\r\nawareness of the nature of such possession cannot fall within the\r\nambit of sections 3 and 25 of the said Act. On the perusal of the\r\nchargesheet it is seen that there is no other material or evidence\r\ncollected by the prosecution so as to indict the Petitioner of having\r\n\"conscious possession\" of the live cartridge. That apart, it is reiterated\r\nthat only the live cartridge having been found, there was no recovery\r\nof any weapon or any firearm from the baggage of the Petitioner</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. On going through the entire evidence, we are of the\r\nconsidered opinion that possession of the live cartridge in the hand\r\nbag of the Petitioner could not be to mean that she was in conscious\r\npossession of the live cartridge and further in the absence of recovery\r\nof the fire arm / weapon, benefit of doubt needs to be given to the\r\nPetitioner in the facts and circumstances of the present case. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) Bail bond, if any, be refunded as per rules.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. With the above directions, Writ Petition stands disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '56fe4d129615c114380a15aae63c675f.jpeg', 'b663503cebe65231c5cbdb0cccdbabdf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-24', 1, '', '', '2022-06-22 17:53:39', '2022-06-24 08:21:57');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1892, 'CdzBDekiB2GYJgGA8oASNymvq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When the statutory body fails to honor its commitment to allot industrial plot, it is bound to refund the entire amount paid by the prospective allottee. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Nandini Modulars Vs Karnataka Industrial Areas.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 12358 of 2020 decided on 21 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.G. Pandit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Learned counsel for the petitioner would submit that the petitioner is before this Court seeking for a writ of mandamus directing the respondent to refund forthwith the entire amount deposited along with the interest amount collected by the respondent-KIADB. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. In pursuance of the notification inviting applications for allotment of industrial sites, the petitioner is said to have submitted his application for allotment of half an acre of industrial land. The respondent-KIADB by allotment letter dated 26.02.2016 (Annexure-E) allotted 0.5 acre of land in Plot No.77 of Jakkasandra Industrial Area,  Kolar District. The petitioner was required to pay a sum of Rs.69,10,000/-being the value of the land. The petitioner said to have paid the said amount and thereafter, the respondent-KIADB demanded Rs.3,81,283/- towards interest, stating that the petitioner has made payment belatedly. Learned counsel for the petitioner would submit that the petitioner received a letter dated 09.02.2018 (Annexure-K) to contact one Sri.B.V.Shankare Gowda, the Deputy Development Officer-I, KIADB Zone office, Bangalore and take possession of the land allotted to the petitioner and execute Lease-cum-Sale agreement for 10 years. It is submitted that when the petitioner went to take possession of the allotted land, it was not developed layout nor there was approach road to the land allotted to the petitioner. In that view of the matter, it is submitted that the petitioner sought alternate industrial site. The said request is also not considered. Hence, the petitioner requested for refund of the amount deposited and in that regard the petitioner got issued legal notice which is placed on record at Annexure-M dated 24.08.2020. Learned counsel for the petitioner would submit that the petitioner would be entitled for refund of the amount deposited before the respondent-KIADB, since the land allotted to them is neither developed layout nor the petitioner is allotted alternate industrial site. The petitioner would prefer to get refund of the amount deposited at this stage. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Per contra, learned counsel Sri.H.L.Pradeep Kumar appearing for respondent-KIADB would submit that the land allotted to the petitioner was developed layout and the petitioner failed to take possession of the land allotted to him at Jakkasandra Industrial Area, Kolar District. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">6. Having heard the learned counsel for the parties and on perusal of the writ petition papers, I am of the view that the respondent-KIADB is required to consider the request of the petitioner for refund of the entire amount deposited. It is not in dispute that the petitioner was allotted 0.50 acre of land, under allotment letter dated 26.02.2016. It is also not in dispute that the petitioner had paid a sum of Rs.69,10,000/-towards the value of allotted industrial site and also Rs.3,81,343 /- towards interest for the delayed payment. Thus, the petitioner is said to have paid Rs.72,91,343/-towards the allotted industrial site to an extent of 0.50 acre of land at Jakkasandra Industrial Area, Kolar District.  For one or the other reason, the petitioner has not taken possession of the land, it may be because the land is not developed nor that the petitioner requested for alternate site. However, the respondent-KIADB cannot keep the amount deposited by the petitioner without putting the petitioner in possession or without considering the petitioner’s request for refund of the amount deposited in accordance with law.  At one stage, the respondent-KIADB informed non-availability of alternate industrial site for allotment. However, today, Sri.H.L.Pradeep Kumar submits that KIADB is ready to offer Plot No.181, Jakkasandra Industrial Area, Kolar District. Further, learned counsel for the respondent would submit that allotment price was paid belatedly and there was delay of 2 years. On the other hand, learned counsel for the petitioner submits that the respondent-KIADB has collected interest for the delayed period. It is noticed that the petitioner has not made any request or representation to the respondent-KIADB except issuing legal notice. Hence, it would be appropriate for the petitioner to submit a representation/request, requesting the respondent-KIADB to refund the amount deposited i.e., Rs.72,91,343/-</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a)<span style=\"white-space: pre;\">	</span>The petitioner to make appropriate representation/ request, requesting the respondent-KIADB to refund the amount deposited in pursuance of the allotment letter dated 26.02.2016 (Annexure-D) within a period of 10 days from today. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b)<span style=\"white-space: pre;\">	</span>If such a representation/request is submitted by the petitioner within the time stated above, the respondent-KIADB is directed to consider the said representation for refund of the amount deposited and pass appropriate order, in accordance with law, within a period of eight weeks from the date of submitting representation. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>With the above, the writ petition stands disposed of.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a7568c5af8b03a5882fd5d12b72387a6.jpeg', 'baa228fcd9b3d6b8d6437096510f8319.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-02', 1, '', '', '2022-07-01 17:36:43', '2022-07-02 08:28:57'),
(1893, 'wmv0Zvjvlmew8XBWOXE6yWf8N', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Writ petition seeking enforcement of industrial settlement. If right accrues to employee under the civil law or common law, writ is maintainable notwithstanding alternate remedy. Kerala High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bharat Petroleum Corporation and others Vs Saju A.R and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.A. 736 of 2022 decided on 30 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Mohammed Nias C.P.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The writ petitions were preferred by some employees and\r\nrecognised Trade Unions of the BPCL – Kochi Refinery, aggrieved by an\r\nOffice Memorandum dated 10.06.2021 that, according to them, took away\r\nthe benefit of a post retirement medical benefit scheme (PRMBS) granted\r\ngenerally to employees of the establishment, from those employees who\r\nhad less than 15 years of service in the establishment as on 01.06.2021. It\r\nwas their contention in the writ petitions that insofar as the excluded\r\ncategory of employees was earlier held entitled to the benefit of the PRMB <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">scheme, and the said fact was even recognised in the Long Term\r\nSettlement (LTS) entered into between the management and the\r\nemployees on 30.05.2013 (to cover the period from 01.08.2008 to\r\n31.07.2018), the impugned Office Memorandum had the effect of\r\ndepriving the said category of employees from the benefit of the PRMB\r\nScheme as recognised by an industrial settlement. This according to them\r\nwas plainly illegal and liable to be declared so.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>2. In the counter affidavit filed by the management (BPCL- Kochi\r\nRefinery), apart from raising a preliminary contention regarding the\r\nmaintainability of a writ petition that sought the implementation of the\r\nterms of an industrial settlement, the management also gave details of the\r\nPRMB Scheme and the reasons that led them to issue the impugned Office\r\nMemorandum that confined the benefit of the Scheme to only some of the\r\nemployees in the establishment. They also sought to establish that the\r\nterms of the settlement itself, and in particular clauses 42 and 50 thereof,\r\nallowed them to modify the Scheme in question based on the felt\r\nnecessities of the time and in the interests of eventually ensuring that the\r\nScheme would be viable in relation to the intended beneficiaries.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n3. Taking note of the issue regarding maintainability urged by the\r\nmanagement, the learned single judge who considered the writ petitions </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">at the admission stage proceeded to pass a detailed order dated\r\n15.07.2021 in the writ petitions holding that the writ petitions were\r\nindeed maintainable.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>THE ISSUE TO BE CONSIDERED:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The main issue to be considered in these appeals is the\r\nmaintainability of a writ petition in cases where an employee is effectively\r\nseeking the enforcement of rights conferred under an industrial settlement.\r\nThe above issue has to be considered in the backdrop of the fact that a coordinate bench of this Court has by a judgment dated 5th May, 2022 in\r\nW.A.Nos.718, 750 & 786 of 2021, allowed appeals preferred by the\r\nemployees and trade unions of BPCL – Kochi Refinery, by setting aside the\r\njudgment, impugned in those appeals, that found writ petitions seeking\r\nenforcement of the terms of a settlement to be not maintainable under\r\nArticle 226 of the Constitution. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WHAT THE LAW SAYS:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>It is well settled that the power to issue writs under Article 226 of the\r\nConstitution can be exercised not only for the enforcement of fundamental\r\nrights but also for any other purpose. Although the exercise of the power is purely at the discretion of the High Court, the discretion is one that has to\r\nbe informed by certain principles that have been recognised in our\r\njurisprudence. Accordingly, the power would ordinarily be exercised when a\r\nlitigant approaches the court alleging violation of fundamental rights or a\r\nbreach of the principles of natural justice or that the proceedings impugned\r\nare wholly without jurisdiction or when the vires of legislation are\r\nchallenged. In other cases, the High Court would relegate the litigant to the\r\nalternate remedy available under the statute in question or to the civil court,\r\nif the right infringed is a civil right under the common law. Where a statute\r\nthat creates a right itself prescribes the remedy or procedure for enforcing\r\nthe right or liability, the court generally insists that resort be had to that\r\nparticular statutory remedy before invoking the discretionary remedy under\r\nArticle 226 of the Constitution. This rule of exhaustion of statutory remedies\r\nis a rule of policy, convenience and discretion .<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. In the context of a right created under an Industrial settlement, it\r\nwas held in that case that the right in favour of the members of the Union\r\narose only under Section 18 of the Industrial Dispute Act and not under the\r\ngeneral law of contract, and hence the remedy provided under the Act was\r\nthe exclusive remedy. The aforesaid principles have been consistently\r\nfollowed in subsequent cases as well.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Thus, in labour matters, when a question arises as to whether this\r\ncourt should exercise its discretionary remedy under Article 226 of the\r\nConstitution, to entertain a writ petition filed by an employee alleging\r\ninfringement of his rights by the employer, the preliminary enquiry by this\r\ncourt must be as regards the origin of the right that is alleged to be\r\ninfringed. If that right is one that accrues to the employee under the civil\r\nlaw or common law, then it might be open to the High Court to entertain the\r\nwrit petition notwithstanding that there is an alternate remedy available to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the employee concerned. If, however, the right alleged to be infringed is one\r\nthat is created by the labour statute concerned, and the said statute also\r\nprovides for a forum for its enforcement, then the rule of exclusivity\r\nmandates that the employee should be relegated to the forum prescribed by\r\nthe legislature in its wisdom. To entertain a writ petition in such cases would\r\ntantamount to ignoring the statutory scheme.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. Cases may and do arise when there is an overlap or intersection of\r\nrights such as when a right is conferred by the Constitution or the common\r\nlaw, and restated in the labour statute concerned. In such cases it might be\r\npossible for the High Court to intervene in cases where the right is alleged\r\nto have been infringed. The intervention in that event would be on the\r\npremise that the rule of exclusivity noticed above would not apply, and that\r\nit would be in the discretion of the employee to choose the forum that,\r\naccording to him, would provide the most expedient and efficacious remedy.\r\nSuch instances are common even when writ petitions are preferred by\r\nemployees seeking the enforcement of the provisions of an industrial\r\nsettlement and where the right alleged to be infringed traces its origin both\r\nto the Constitution/common law and to the memorandum of settlement itself.\r\nIn such cases, a writ petition could be entertained subject to the court\r\nfinding that circumstances exist for exercising its discretionary jurisdiction\r\nin favour of the employee. If, however, the right can be traced only to the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Settlement and not to the common law or the Constitution, the rule of\r\nexclusivity mandates that the writ court adopt a hands-off approach and\r\nrelegate the employee to the remedy of raising an industrial dispute, and\r\napproaching the forums under the ID Act that are better equipped to\r\nadjudicate such matters. This is more so because, as noticed in Premier\r\nAutomobiles (supra), the right conferred solely by the settlement has to be\r\nseen as one conferred under Section 18 of the ID Act and not under the\r\ngeneral law of contract.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> OUR ANALYSIS AND FINDINGS:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>On a consideration of the facts and circumstances of the case and the\r\nsubmissions made across the bar, we are of the view that, in the light of the\r\nlegal position as enumerated above, these appeals must succeed. It cannot\r\nbe in dispute that the right alleged to have been infringed or taken away in\r\nthese cases is a right to a particular retirement benefit that was conferred\r\non the employees under a Scheme that was recognised in the settlement.\r\nThe right in question cannot trace its origin to either the general law of the\r\nland or to the Constitution. That being the case, the settled legal position in\r\nthis regard ie. The rule of exclusivity, leads us to hold that the forum\r\nappropriate to adjudicate upon the issue is solely the one provided under the\r\nID Act. In this regard, we find that by issuing the letter dated 15.06.2021 to\r\nthe management, with a copy marked to the Conciliation Officer, the trade </b></span><b style=\"font-size: 12pt;\">unions representing the employees of BPCL-Kochi Refinery had already\r\ninitiated the machinery under the ID Act for redressing their grievance.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The question then arises as to whether in such cases it is the\r\nemployees or the management that must be relegated to the remedy before\r\nthe said forum. It must be noted that ordinarily it is the employee who\r\nresorts to the machinery provided under the ID Act when faced with an\r\naction of the management that breaches his right under a settlement. We\r\ncannot however discount the possibility of managements acting arbitrarily\r\nor unconscionably while taking away rights granted to their employees\r\nunder a settlement and forcing the employees to resort to their remedies\r\nunder the Act. We feel that in such cases, the effect of the management’s\r\naction on the employees, and the extent of prejudice caused to their\r\ninterests, must inform the decision of the court. Where, for instance, the\r\naction of the management results in rendering ineffective any contributions\r\nmade by the employees till then, towards a beneficial scheme, by removing\r\nthem from the coverage of the scheme, then it would be in the interests of\r\nfairness to insist that the management resorts to the machinery under the ID\r\nAct before implementing their proposal to withdraw the benefits of the\r\nscheme from a class of employees. This would be more so when the\r\nmanagement is an establishment that answers to the description of ‘State’\r\nunder Article 12 of the Constitution. Fairness in State action being an <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">integral aspect of the rule of law, and therefore a basic feature of our\r\nConstitution, the State cannot act unfairly even when operating in the realm\r\nof private law.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. That being said, in the instant case we find that the modification\r\nproposed by the management does not entail any immediate prejudice to the\r\ninterests of the employees as the right claimed by the employees are\r\nobtainable only on their retirement. The PRMB scheme does not envisage\r\nany contribution from the employees, and the contributions made in relation\r\nto each employee is solely by the management. Under such circumstances,\r\nand more so since we find that the employees have already resorted to the\r\nmachinery under the Act through their communication dated 15.06.2021\r\nissued to the management, with a copy marked to the conciliation officer, we\r\nfeel that the interests of justice could be met by relegating the writ\r\npetitioners to pursue the said remedy, while simultaneously issuing\r\ndirections to the authorities concerned to expedite the proceedings under\r\nthe ID Act. We are also of the view that considering the nature of the dispute\r\nbetween the parties viz. the propriety of limiting the coverage of the PRMB\r\nScheme, the Industrial Tribunal would be the better forum for adjudication\r\nof the same. This is because, as noted by a Constitution bench of the\r\nSupreme Court in Bharat Bank</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Before parting with these appeals, we must also deal with the\r\narguments of the learned counsel for the writ petitioners that the issue of\r\nmaintainability of the writ petitions has already been decided by a coordinate bench of this Court in relation to the very same settlement entered\r\ninto between the employees and management of BPCL-Kochi Refinery. While\r\nit is no doubt true that the issues urged by the employees in those writ\r\npetitions pertained to the same LTS as the one we are concerned with in\r\nthese appeals, the rights affected were not the same. In the appeals dealt\r\nwith by the co-ordinate bench, the rights breached were those that flowed\r\nfrom clause 12 of the LTS dealing with dearness allowance and the breach\r\nalleged was in the context of an Office Memorandum that envisaged a\r\nwithholding of additional instalments of dearness allowance payable to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">employees. Arguably, the said right to dearness allowance could trace its\r\norigin not only to the terms of the LTS but also, perhaps, to the provisions of\r\nthe Constitution since the dearness allowance is recognised as an integral\r\ncomponent of the real wages payable to the employee. In the appeals before\r\nus, however, we are concerned with a right that flowed from the PRMB\r\nscheme that was recognised under the LTS, and the said right being one\r\ntraceable solely to the LTS, the exclusivity rule with regard to remedies\r\nwarrants a different approach. That apart, there was nothing in the appeals\r\nbefore the co-ordinate bench that showed that the employees had already\r\nresorted to the machinery under the ID Act while simultaneously\r\napproaching this court under Article 226 of the Constitution. The co-ordinate\r\nbench also found that on the facts of the appeals before it, the matter was\r\ncovered by judgments of the Supreme Court. The above facts, we believe\r\nare sufficient for us to distinguish the appeals dealt with by the co-ordinate\r\nbench from the instant appeals, and justification enough for us to take a\r\ndifferent view on the issue of maintainability of the writ petitions.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5. We are also of the view that merely because the learned single\r\njudge held the writ petitions to be maintainable, and went into the merits of\r\nthe proposed exclusion of a section of employees from the benefit of the\r\nPRMB Scheme, we are not precluded from examining the correctness of the\r\nfinding of the learned single judge on the issue of maintainability of the writ </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitions. The decisions relied upon by the learned counsel for the\r\nrespondents themselves clearly reveal that in rare cases we can. In our view,\r\nthe instant are cases where the learned single judge wholly overlooked the\r\nexclusivity rule in the matter of available remedies, and found the writ\r\npetitions maintainable on an erroneous appreciation of the law.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. The upshot of the above discussions is that we set aside the\r\nimpugned judgment of the learned single judge, vacate the findings therein\r\non merits and allow these writ appeals by dismissing the writ petitions as\r\nnot maintainable. Taking note of the urgency projected by the writ\r\npetitioners, and in view of the imminent change of character of the\r\ncorporation, as admitted by the appellants in their counter affidavits to the\r\nwrit petitions, we direct that conciliation proceedings shall be initiated\r\nforthwith by the authorities under the ID Act, based on the notice dated\r\n15.06.2021 issued by the trade unions representing the employees to the\r\nmanagement (Ext.P7 in W.P(C).No.12838 of 2021), with a copy marked to\r\nthe conciliation officer. In the event of a failure of the conciliation efforts,\r\nthe matter shall be referred to the appropriate government without any\r\ndelay so that an adjudication of the industrial dispute can commence before\r\nthe Industrial Tribunal concerned within an outer time limit of four months\r\nfrom the date of receipt of a copy of this judgment. We make it clear that\r\nwe have not expressed our views on the merits of the dispute and all </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contentions in this regard are left open.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. To allay the fear and apprehension of the respondents regarding an\r\nunilateral diversion of funds by the appellants pending an adjudication of the\r\nindustrial dispute, we record the undertaking given on behalf of the\r\nappellants, by the learned senior counsel, that if the appellants do not\r\nultimately succeed in the adjudication of the industrial dispute, they will\r\npromptly replenish the fund with the required contribution in respect of the\r\naffected employees.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>The writ appeals are allowed as above</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '18048a760b6be90915e2f90a5007f80c.JPG', 'd39b06164158fe32528daaa7b3cd7cea.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-04', 1, '', '', '2022-07-01 18:31:07', '2022-07-04 03:22:17'),
(1852, '4IfAEzY283mth5WU5Zb8rbTKi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'All the offences under the Negotiable Instruments Act are compoundable and the parties can compound subject to payment of graded cost. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Arun Vincent Rajkumar Vs S. Mala.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Revision Petition 579 of 2015 decided on 1 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.B. Prabhakara Sastry.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. In all these four revision petitions, the present petitioner has challenged the confirmation of his conviction for  the  offence  punishable  under  Section  138  of  the Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as “the N.I. Act”). The judgment of conviction and order on sentence passed by the learned XIV Additional Chief Metropolitan Magistrate, Bangalore (hereinafter for brevity referred to as “the Trial Court”) in all these four matters were confirmed by the Fast Tract Court-III, Mayohall, Bangalore (hereinafter for brevity referred to as “the first appellate Court”) in the Criminal Appeals preferred by the present petitioner, who was the accused in the Trial Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The respondent herein was the complainant in the Trial Court. Now both the parties have come up with memorandum of settlement in all these four matters, in which regard, they have filed separate interlocutory applications, i.e. I.A.No.2/2022 in each petition, under Section 147 of the N.I. Act read with Section 320 (6) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as “the Cr.P.C.”).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. In the memorandum of settlement filed along with the interlocutory applications in all the four matters, both parties have carved out the terms of settlement entered into between them, the summary of which is that, the present respondent in all these four matters, by accepting a total sum of ?9,00,000/- (Rupees Nine Lakhs only) payable to her by the present petitioner (accused), has agreed for the acquittal of the present petitioner (accused) from the alleged offence punishable under Section 138 of the N.I. Act and also has agreed for refunding of the deposits said to have been made by the petitioner herein in the Trial Court as well as in this Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The learned counsels from both side have made their submissions on the lines of the interlocutory applications filed under Section 147 of the N.I. Act in all these petitions and the memorandum of settlement and have prayed for accepting the applications and permitting the parties to compromise as mentioned in the applications.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 7. The enquiry made with the parties who are present physically before the Court also reveals that both parties have, with their free consent and out of their own volition, without being influenced by undue influence, duress or misrepresentation or by mistake, have entered into the terms of settlement in their best interest. Hence, there is no embargo to deny them the permission to settle the matter. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.  Accordingly, the present respondent, as a complainant, who has acknowledged the receipt of a sum of ?3,00,000/-  (Rupees Three Lakhs  Only)  in  the  form  of demand draft dated 31-05-2022 said to have been given to her by the accused (petitioner herein) now, acknowledges the receipt of another sum of ?6,00,000/- (Rupees Six Lakhs Only) from the accused (petitioner herein) in the form of another demand draft dated 31-05-2022 drawn in her favour and thus acknowledges the receipt of a total sum of ?6,00,000/- + ?3,00,000/- = ?9,00,000/- towards full and final settlement of the agreed terms with respect to the present four petitions. She has further agreed that the deposits, if any, made by the present petitioner in these four petitions either in the Trial Court or in this Court be released in his favour. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. The learned counsel for the petitioner, upon instructions from his client submits that, the graded cost payable by virtue of the judgment of the Hon’ble Apex Court in the case of Damodar S. Prabhu v. Sayed Babalal H reported in AIR 2010 SUPREME COURT 1907, which comes to a total sum of ?81,000/- be deducted from out of the amount deposited by the petitioner herein in this Court and balance of the amount be released to him. The petitioner who is physically present also reiterates what the submission his learned counsel has made today. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. Section 147 of the N.I. Act has made every offence punishable under the N.I. Act as compoundable. As such, there is no bar for the parties in the proceeding to compound the offence. However, at the same time, the guidelines laid down by the Hon’ble Apex Court in Damodar S. Prabhu’s Case (supra), regarding imposing graded cost on litigant also is to be borne in mind. According to the said Judgment in Damodar S. Prabhu’s Case (supra), if the application for compounding is made before the Sessions Court or High Court in revision or appeal, such compounding is permitted to be allowed on the common condition that the accused pays 15% of the cheque amount by way of cost.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>[i] The Joint application - I.A.No.2/2022 filed by both side under Section 147 of the Negotiable Instruments Act, 1881 read with Section 320(6) of the Code of Criminal Procedure, 1973, in all these four revision petitions are allowed;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>[ii] The parties to the present petitions are permitted to compound the offence, however, subject to the petitioner herein (accused) paying a total sum of ?81,000/- (Rupees Eighty One Thousand Only) towards graded cost, in this Court, within fifteen days from today;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>[iv] The petitioner herein (accused) –Sri.  Arun  Vincent  Rajkumar  S/o.  Sri.A.J. Rajkumar, resident of HRBR Layout, Bengaluru, who was the accused before the Trial Court is acquitted of the alleged offence punishable under Section 138 of the Negotiable Instruments Act, 1881, in all these four revision petitions;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>[v] However, this order of compounding of the offence and acquittal of the petitioner herein would come into operation and would enure to the benefit of the petitioner, only after he deposits the graded cost as ordered above, in this Court and in its entirety within fifteen days from today. In case of non-deposit of the said amount in its entirety, today’s order would not enure to the benefit of the petitioner. <br>[vi] The amount, if any, deposited by the petitioner herein in this Court in all these four petitions be released to him, after deducting the graded cost of ?81,000/-, as ordered above.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>[vii]<span style=\"white-space:pre\">	</span>The amount, if any, deposited by the petitioner herein, in the Trial Court is directed to be refunded/released in his favour, after his due identification and in accordance with law and after ensuring the payment of graded cost by the petitioner, as ordered above;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'eb10a157cca05523c3f62253b11f541d.jpeg', '225553db34c89faddc0fb0c8f98d2a15.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-23', 1, '', '', '2022-06-22 19:20:58', '2022-06-23 12:25:10'),
(1860, 'lvN7kJwcmRKYBW8Laz8BFq5Z0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'FIR for the offence under Section 498-A IPC cannot be registered against woman alleged to be in illicit relationship with complainant’s husband unless essential ingredients of the offence are made out. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shilpa S.C Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 2743 of 2017 decided on 2 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The First Information Report is lodged by the 2nd\r\nrespondent alleging that she is the legally wedded wife of\r\naccused No.1 and she was subjected to cruelty by accused\r\nNo.1 to 4 and the accused No.5 – petitioner is having illicit\r\nrelationship with her husband.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The police registered FIR for the offence\r\npunishable under Section 498-A, 506, 504 and 34 of IPC\r\nand Section 3 and 4 of Dowry Prohibition Act. Taking <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">exception to the same, the petitioner – accused No.5 has\r\nfiled this petition.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3. Learned counsel for the petitioner submits THE\r\nthat only allegation against the petitioner – accused No.5\r\nis that, she is having illicit relationship with accused No.1\r\nwho is her legally wedded husband. Hence, the allegation\r\nmade against the petitioner – accused No.5 does not\r\nconstitute the commission of the offences alleged against\r\nthe petitioner. Hence, the registration of the FIR for the\r\naforesaid offences is impermissible.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. On the other hand, learned HCGP appearing for\r\nthe State submits that the allegations made in the FIR\r\ndiscloses that the commission of the offences alleged\r\nagainst the petitioner – accused No.5.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">6. The only allegation as against the petitioner –\r\naccused No.5 is that she is having illicit relationship with </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the accused No.1 who is the husband of the respondent\r\nNo.2 – informant. This allegation does not constitute the\r\ncommission of the offences alleged against the petitioner –\r\naccused No.5 and in the absence of any essential\r\ningredients so as to constitute the commission of the said\r\noffences, registration of the FIR against accused No.5 is\r\nwithout any substance.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Criminal petition is allowed.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The impugned FIR in Cr.No.547/2016 registered by\r\nthe Vijayanagara Police Station, Bengaluru insofar it\r\nrelates to petitioner – accused No.5 is hereby quashed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2b09fbde36497bdb6d4b4e93b6b6a966.JPG', 'b1f6fe447c135f4433c2e59a18aa62b6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-24', 1, '', '', '2022-06-24 00:40:52', '2022-06-24 13:55:07');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1853, 'VI3LzOxKqyePAcmu4ab874DMy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Wife visiting her parents’ house frequently without taking husband’s consent does not amount to desertion or cruelty. Allahabad High Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mohit Preet Kapoor Vs Sumit Kapoor.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>First Appeal 351 of 2020 decided on 16 February 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sunita Agarwal and Justice Krishan Pahal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The divorce petition had been filed by the respondent husband on\r\n6.3.2017 on the ground that the appellant, his wife, had left her\r\nmatrimonial home on 10.1.2015 without any rhyme or reason, in his\r\nabsence, alongwith her family members. At that point of time, the\r\nappellant wife was pregnant for two months. It was alleged in the divorce\r\npetition that while leaving her matrimonial home, the appellant took all\r\nher jewellery as also Rs.36,000/- in cash kept by the respondent in his\r\nsafe. On 25.1.2015, the respondent went to bring the appellant back to his\r\nhome when she refused to maintain any kind of relationship with him.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. It was further contended that on 22.8.2015, the appellant had given\r\nbirth to a girl child. She was admitted in the hospital by the respondent\r\nwho had borne all expenses of birth of his daughter. The appellant wife\r\nwent to her paternal home after birth of the child. After about eight to ten\r\ndays, the respondent went to bring the appellant back to his home when\r\nshe denied to meet him and did not allow him to even see his child. On\r\n15.1.2017 the respondent again went alongwith his relative to bring the\r\nappellant to his home when she had denied to accompany him. It is, thus,\r\nstated in the divorce petition that the appellant was residing separately\r\nsince 10.1.2015 and she has refused to keep relationship with the\r\nrespondent.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The plea in the divorce petition, thus, is that the appellant wife had <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">deserted her husband/respondent without any rhyme or reason and refused\r\nto cohabit with him. The cause of action for filing the divorce petition\r\nstated to have arisen on 10.1.2015 when appellant wife had left her\r\nmatrimonial home along with her father and brother and lastly on\r\n15.1.2017 when she refused to accompany the respondent to her\r\nmatrimonial home. Another ground for seeking divorce is that the\r\nappellant had refused to do the household work and misbehaved with the\r\nfamily members of the respondent. She used to go to her paternal home or\r\nto her relatives without any information to the respondent or his family\r\nmembers </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. An application under Section 24 of the Hindu Marriage Act was\r\nfiled by the appellant on 6.9.2017 which was contested by the respondent\r\nby filing his objection on 26.2.2018. By the order dated 10.7.2018, while\r\nallowing the application under Section 24 of the Hindu Marriage Act, an\r\namount of Rs.5,000/- per month was awarded to the appellant and\r\nRs.2000/- for her daughter towards monthly maintenance. In addition to\r\nthe same, Rs.20,000/- in lumpsum was awarded towards the cost of the\r\nproceedings.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n8. A written statement in rebuttal was filed by the appellant wife on\r\n06.10.2018 wherein she had categorically denied the assertion that she\r\nhad left her matrimonial home on 10.1.2015 rather it was stated therein </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that the appellant lived with the respondent, her husband, in his house\r\nuptil July, 2016. A child was born out of the wedlock on 22.8.2015 in\r\nRashmi Goyal Hospital situated at Rampur Garden Bareilly. The appellant\r\nwas admitted in the hospital by the respondent on 22.8.2015 who had\r\nsigned the consent letter for the surgery. It is emphatically denied that the\r\nappellant had refused to have sexual relationship with the respondent. It\r\nwas further stated that after the birth of the girl child the respondent did\r\nnot care to take the appellant to his home from the hospital and she had to\r\ngo to her father\'s home. After about a period of four months, the\r\nrespondent went to the house of the appellant\'s parents and when the\r\nmatter was amicably settled and the appellant came to live with the\r\nrespondent in his house. On 13.6.2016, their daughter had to undergo an\r\noperation for which she was admitted in Medanta Medicity Hospital\r\nGurgaon when both the appellant and respondent were with their child.\r\nAfter surgery, the appellant-wife came back to the house of the respondent\r\nand stayed there until 21 July, 2016 when she was turned out of her\r\nmatrimonial home along with her infant daughter. It is alleged in the\r\nwritten statement that the original documents such as Aadhar Card, Pan\r\nCard, Driving licence, Voter Id, Marriage certificate and other documents\r\npertaining to the educational qualification of the appellant-wife were in\r\nthe possession of the respondent and he was misusing them by forging her\r\nsignature.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. The appellant in her statement has categorically stated that she was\r\nkicked out of her matrimonial home on 21.7.2016 and the first\r\ninformation report was lodged against the respondent thereafter. She was\r\nconfronted on the allegations of demand of dowry in the cross\r\nexamination. The appellant has asserted in cross that the marriage of her\r\nbrother-in-law was held after two years of their marriage on 15.12.2015,\r\nand their marriage anniversary also fell on the said date. She had\r\nreiterated that she remained in the house of the respondent till July, 2016\r\nand at that point of time she was not pregnant. She had categorically\r\ndenied of leaving her matrimonial home in January, 2015.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. In support of the plea of desertion, the respondent has produced\r\nother witnesses also. P.W-2 is the brother of the respondent namely Amit\r\nKapoor. He has stated that the appellant had left their home on 10.1.2015\r\nalongwith her father saying that she would come back after few days. He\r\nstates that the father of the appellant remained in their house for around <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">30-45 minutes. In cross, he states that whatever has been stated in\r\nparagraph-5 in his examination-in-chief with regard to the appellant\r\ntaking her jewellery and money while leaving on 10.1.2015, was based on\r\nthe information given to him by his brother, the respondent herein.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. On appreciation of the oral evidence led by the respondent husband,\r\nat least, this can be elicited that P.W-3, P.W-4 and P.W-5 are the persons\r\nwho had no knowledge as to whether the appellant had actually left her\r\nmatrimonial home on 10.1.2015 with the intention to end her matrimonial\r\nrelationship. The statement of P.W-3 in this regard is not credible, in as\r\nmuch as, he admitted that he was not related to the family on two crucial\r\ndates, i.e. on 10.1.2015 and 25.1.2015. His statement that the appellant\r\nhad left her matrimonial home along with her father on 10.1.2015 and\r\nrefused to come back on 25.1.2015 when he also went along with the\r\nrespondent to bring her back, is sketchy. He seems to be either a chance\r\nwitness or brought up by the respondent. At least the statements of P.W-3,\r\nP.W-4 and P.W-5 cannot be proof of desertion on the part of the appellant.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n21. We are left with two witnesses, i.e the respondent himself and his\r\nbrother Amit Kapoor. P.W.-2-Amit Kapoor was the resident of the same\r\nhouse. He states that the appellant had left along with her father on\r\n10.01.2015 saying that she would come back within few days. In the\r\nexamination in chief this witness states that his brother went to the house\r\nof the appellant on 25.1.2015 but she refused to come back.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. A perusal of this part of statement of P.W.-1 indicates that the\r\nphotographs of his daughter uptil the age of 7-8 months were taken at\r\ndifferent point of time and location and some in his house also. In one of\r\nthese photographs, the child could be seen in the walker in a room of the\r\nhouse of the respondent. P.W.-1 admitted the photograph marked as paper\r\nno.30Ga/9 which is of his daughter when she was aged about 7-8 months\r\nat that point of time. On appreciation of the statement of P.W-1/husband,\r\nit is evident that the appellant and her daughter were well photographed in\r\nthe house of the respondent, i.e the matrimonial home of the appellant. In\r\nvarious photographs, P.W.-1 himself could be seen alongwith his daughter\r\nin his own house. There is a categorical statement of the appellant O.P.W1 that she was residing in her matrimonial house both at the time of birth\r\nof her daughter and her treatment in Medanta Medicity Hospital Gurgaon\r\nand thereafter till July, 2016. The distance between two houses, i.e\r\npaternal home of the appellant and her matrimonial house (the\r\nrespondent\'s home) is barely 400 metres. In these circumstance, the\r\nstatement of P.W.-1 that the appellant had deserted him by leaving her\r\nmatrimonial home on 10.01.2015, in his absence, permanently is\r\nunbelievable. There is admission of the respondent/P.W-1 that his wife\r\nthough attended the wedding of his younger brother Amit on 15.12.2015\r\nbut was not present in his marriage anniversary on 15.12.2016. The\r\nstatement of P.W-2 in the cross examination that he went to bring the appellant back many a times and lastly brought her back in December,\r\n2016, also shows that the appellant came to her matrimonial home at least\r\nafter 10.01.2015.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. From the evidence on record, thus, it cannot be accepted that the\r\nappellant had left her matrimonial home on 10.01.2015 with the intention\r\nto end her matrimonial relationship. The statement of appellant O.P.W-1\r\nthat she came back to her matrimonial home after four months of birth of\r\nher daughter when the respondent himself brought her back and remained\r\nthere till July, 2016 is found to be more convincing. The plea of desertion\r\non the part of the appellant without any reasonable cause and denial of\r\nmatrimonial obligation on her part, therefore, is not found proved.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. As regards the legal position, on the issue of desertion, the Apex\r\nCourt in Savitri Pandey vs Prem Chandra Pandey reported in\r\n(2002) 2 SCC 73 considering its earlier decisions has held that the\r\ndesertion in its essence means the intentional permanent forsaking and\r\nabandonment of one spouse by other without that other\'s consent, and\r\nwithout reasonable cause. To constitute the offence of desertion so far as\r\nthe deserting spouse is concerned, two essential conditions must be there:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i)the factum of separation.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii)the intention to bring cohabitation permanently to end (animus\r\ndeserendi).<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. In the instant case, from the act and conduct of the parties, it cannot\r\nbe inferred that the appellant had deserted her husband (respondent) with\r\nthe intention to bring cohabitation permanently to an end by leaving her\r\nmatrimonial home on 10.01.2015 in the absence of her husband. The\r\nappellant was pregnant at that time and she may have gone to her parents\r\nhouse which was barely 400 metres, for sometime. Further, the act of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appellant in visiting her parents house frequently without taking consent\r\nof her husband and other family members cannot constitute the offence of\r\ndesertion on her part. P.W-2, brother-in-law of the appellant had stated\r\nthat he brought her back many a times from her parents house and lastly\r\nshe came in December, 2016. The plea of desertion taken by the\r\nrespondent can not be accepted from the facts and circumstances of the\r\ncase, in as much as, such an inference cannot be drawn from the attending\r\ncircumstances which speak otherwise. It may be inferred that there were\r\ndifferences between husband and wife but the act of desertion, without\r\nreasonable cause, with the intention to bring cohabitation permanently to\r\nend is not proved, at least not on 10.01.2015. The cause of action as\r\nalleged to have been accured firstly on 10.01.2015 and lastly on\r\n15.01.2017, the period of two years of desertion, is not proved from the\r\nmaterial on record.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">31. Further, the appellant has come out with the categorical statement\r\nthat she alongwith her daughter was thrown out of her matrimonial home\r\nby the respondent in July, 2016. The respondent admittedly did not bring\r\nany legal action with a view to assert his right to restitute his conjugal\r\nrights. When application under Section 24 of the Hindu Marriage Act was\r\nfiled, the respondent contested the same on various pleas and did not\r\ncome forward to pay interim maintenance even for his daughter. In this\r\nappeal, the respondent did not appear in spite of filing of the caveat\r\napplication and service of the notice upon him, on account of which the\r\nstatus quo order was passed on 05.10.2020. The respondent or his counsel\r\nnever participated in this proceeding which shows that the respondent\r\nhusband himself is not willing to take care of his wife and even his minor\r\ndaughter. It seems that he has deserted her wife on his own and is running\r\naway from his responsibility of a father towards his minor daughter.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. The conclusion drawn by the trial court is that the appellant used to\r\ngo her parent\'s house without any information to the respondent or his\r\nfamily members and she did not do daily chores of the house being a\r\ndaughter-in-law. We may record that not a single instance of such an act\r\nof the appellant has been brought on record either by the respondent or\r\nhis brother who entered in the witness box as P.W-2. The general\r\nallegations and casual statement of the respondent in the divorce petition\r\nhas been treated as a gospel truth by the Family Court without any cogent\r\nevidence on record. The act of the appellant in visiting her parent\'s house,\r\nin any case, even without the permission of the respondent does not\r\namount to cruelty. The facts that the appellant was admitted in the\r\nhospital by the respondent at the time of her delivery or he had borne\r\nexpenses for treatment of their daughter do not go against the appellant\r\nrather these facts support the case of the appellant that she did not leave\r\nher husband that too permanently with the intention of bringing the\r\ncohabitation to an end and has never done any act to deprive the respondent from the pleasure of fatherhood. The ground of cruelty on the\r\nsaid assertion is not made out.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>35. Last ground to hold cruelty on the part of the appellant is that she\r\nhad lodged a criminal case against her husband and in-laws on the false\r\nplea of demand of dowry and her statement that she was thrown out of\r\nher matrimonial house by the respondent by beating her is false. The\r\nFamily Court while recording the said finding has completely ignored the\r\nfact that the first information report was lodged by the appellant on\r\n27.01.2018 much after the divorce petition was instituted on 6.3.2017.\r\nThe act of the appellant in lodging the first information report on the plea\r\nof demand of dowry may not be approved by the Family Court but the\r\nsaid issue was not subject matter of scrutiny in the divorce proceeding.\r\nSurprisingly, the family court has lost sight of the fact that the plea of\r\ncruelty was taken as a ground of divorce in the plaint filed on 06.03.2017.\r\nThe plaintiff, i.e the respondent herein was required to prove the\r\nexistence of such acts or conduct of the appellant which amounted to\r\ncruelty prior to the date of institution of the divorce suit. Any subsequent\r\nconduct of the appellant in lodging the first information report after she\r\nwas thrown away from her matrimonial home by the respondent cannot\r\nbe treated as an act of cruelty on the part of the appellant.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>36. The respondent husband could not prove cruelty from any act or\r\nconduct or behaviour of the appellant by leading any evidence much less\r\ncogent evidence. The findings on issue no.1 on the plea of cruelty\r\nreturned by the family court are, thus, liable to be set aside.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>37. For the foregoing discussion and reasons, the divorce decree\r\ngranted by the trial court cannot be sustained in the eye of law. The\r\njudgment and order dated 19.03.2020 passed by the Additional Principal\r\nJudge, Family Court Bareilly is hereby set aside. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>39. However, before parting with this judgment, we would like to\r\naddress one more issue which is of maintenance to wife and daughter\r\ndeserted by the respondent.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>40. It is evident from the record that the appellant got interim\r\nmaintenance under Section 24, pursuant to the order dated 10.07.2018\r\nwhereby Rs.5,000/- was fixed for the appellant and Rs.2,000/- for her\r\ndaughter on monthly basis by the Family Court. After dismissal of the\r\ndivorce suit on 19.03.2020, the interim maintenance has been stopped.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>41. While admitting this appeal and passing the interim order of status\r\nquo, this Court did not clarify that interim maintenance would payable to\r\nthe appellant and her daughter. The result is that during the pendency of\r\nthe appeal, the appellant and her daughter have been left to survive on\r\ntheir own. They have no financial support as the appellant has no income.\r\nThe question is as to whether after dismissal of the divorce suit, the\r\nappellant is entitled for maintenance while living separately in case her\r\nhusband refuses to maintain her. This issue can be answered with the help\r\nof the provisions contained in Section 18 of the Hindu Adoption and\r\nMaintenance Act, 1956 which provides that a Hindu wife shall be entitled\r\nto live separately from her husband without forfeiting her claim for\r\nmaintenance, in case her husband is guilty of desertion or abandoning her\r\nwithout reasonable cause or is guilty of willfully neglecting her. The right\r\nto claim interim maintenance by instituting a suit under Section 18 of the\r\nHindu Adoption And Maintenance Act, 1956 is a substantive right and can\r\nbe availed by the appellant by bringing her own action.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>42. However, as to the dependant daughter, who is aged about six years,\r\nthe obligation is upon the respondent by virtue of Section 20 of the Hindu\r\nAdoption and Maintenance Act, 1956. The appellant needs money to\r\nprovide education, clothing, food and participation in extra curricular\r\nactivities for the upbringing of her daughter. The meagre amount of\r\nmaintenance of Rs.2,000/- per month for the minor daughter as fixed by\r\nthe Family Court has also been stopped since the year, 2020 after the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">decree of divorce was passed in favour of the respondent.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">43. Considering the fact that the respondent is a Chartered Accountant\r\nand is engaged in this profession since the year 2012, we find it fit and\r\nproper that an amount of Rs.30,000/- per month shall be paid by the\r\nrespondent towards maintenance of his daughter. The said amount shall be\r\npayable w.e.f February, 2022 and shall be transmitted in the Saving bank\r\naccount of the appellant by 10th of each succeeding month. For February,\r\n2022, the payment shall be made by 10th March, 2022.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>45. Any default on the part of the respondent in making the above\r\npayment timely, would entitle the appellant to institute the execution\r\nproceeding before the competent Court.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>46. With the above observations and directions, the appeal is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4c5575a6ed17ba9216ff9cb9803ba00c.png', '1cbbd21c73bc720275eb8adf1fae869f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-23', 1, '', '', '2022-06-22 19:33:38', '2022-06-23 10:17:54');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1854, 'Lv85lfaijUDIpiqJq19uvjHmG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Accused need not prove the existence of private self-defence beyond reasonable doubt. It would suffice if he could show that the preponderance of probabilities is in favour of his plea, just as in a civil case.  Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ex. CT. Mahadev Vs The Director General Boarder Security Force and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2606 of 2012 decided on 14 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B.R. Gavai and Justice Hima Kohli.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The appellant is aggrieved by the judgement dated 3rd March, 2011 passed by\r\nthe Division Bench of the High Court of Delhi dismissing a writ petition filed by him,\r\nregistered as WP(C)No.6709/2008, wherein he had challenged the order dated 19th\r\nMarch, 2008 passed by the respondent No.4 herein convicting him to life imprisonment\r\nfor an offence committed under Section 46 of the Border Security Force Act, 19681\r\n , that\r\nis to say for murder punishable under Section 302 of the Indian Penal Code, 18602\r\n. By\r\nthe impugned order, the Division Bench has upheld the order passed by the respondent\r\nNo.2 - Appellate Authority, whereby the statutory appeal filed by the appellant was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dismissed and the order dated 10th March, 2007 passed by the General Security Force\r\nCourt was upheld.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. On the appellant pleading not guilty to the charge framed against him, the\r\nprosecution proceeded to examine seventeen witnesses. The appellant did not produce\r\nany witness. However, he made an oral statement in his defence. The plea of private\r\ndefence taken by the appellant was rejected and on 10th March, 2007, the GSFC held\r\nhim guilty of the charge and sentenced him to suffer imprisonment for life besides <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dismissing him from service. Vide order dated 4th April, 2007, the Convening Officer\r\nconfirmed the findings and the sentence imposed on the appellant. Aggrieved by the\r\nsaid order, the appellant preferred a statutory petition, which was dismissed by the\r\nrespondent No.1 – Union of India, vide order dated 19th March, 2008 that has been\r\nupheld by the High Court.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. For arriving at the aforesaid conclusion, the High Court has primarily relied on the\r\ntestimony of Dr. Ranjit Kumar Das (PW-10), who had conducted the postmortem on the\r\nbody of the deceased and deposed that he had died due to firearm injuries and two\r\nbullets had pierced his body. It was noticed that PW-10 had deposed that having regard\r\nto the nature and place of the injuries, the position of the firer as against that of the\r\ndeceased was such that the one who would have fired the shot, must have been on an\r\nelevated position compared to the victim since the direction of the bullets were from\r\nabove the chest, going downwards and backward. Going by the said testimony read\r\nalong with the testimony of SI Shanti Bhushan Bhuiya (PW-13), who had deposed that\r\nwhen he saw the dead body, both the legs were in a folded position, the High Court\r\narrived at the conclusion that the appellant had made the deceased to crouch down and\r\nthereafter, had fired two shots at him.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Mr. Lalit Kumar, learned counsel for the appellant argued that the High Court has\r\nerred in concurring with the findings of the GSFC and discarding the defence taken by\r\nthe appellant that he was compelled to exercise his right of private defence to save his\r\nlife when suddenly confronted with intruders who were armed with weapons and had\r\n‘gheraoed’ him. He alluded to the topography of the Rubber plantation where the\r\nincident had taken place, which was admittedly uneven with depressions and\r\nundulations, to urge that merely because the deceased was found with his legs in a\r\nfolded position, could not be a ground to indict the appellant having regard to the fact\r\nthat even as per the version of CT H. Vijay Kumar (PW-1), the eye-witness who was\r\npatrolling in the area along with the appellant, the latter was positioned at a higher level\r\nvis-à-vis the deceased and therefore, it was but natural that on his firing from his rifle,\r\nthe bullets would have hit the deceased on the upper part of his body as he was\r\npositioned at a lower level. It is in this manner that learned counsel for the appellant has\r\nsought to explain the path of the bullets that had pierced the body of the deceased and\r\nindicated that the shots were fired by the appellant taking a downward angle and not\r\nface on face.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Learned counsel for the appellant also referred to the testimony of Sapan Das\r\n(PW-2) and other prosecution witnesses to submit that villagers in the area being close\r\nto the border of Bangladesh, used to regularly indulge in smuggling activities and even <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the deceased used to do so. He pointed out that this fact had not only been deposed by\r\nPW-1, but also by SI (M) Suresh Kumar Dagar (PW-17), who during his crossexamination, had stated in so many words that since the deployment of 131 Battalion,\r\nBSF and prior to the incident in question, trans-border criminals had attacked BSF\r\npersonnel seven times and most of the times, they had to use force by opening fire in\r\nself-defence and the defence of property. In fact, the deceased had been apprehended\r\nfor indulging in smuggling activities and his name features in the list of smugglers\r\nmaintained by the BSF. He also adverted to the fact that currency worth 24,700\r\nBangladeshi Takas was recovered from the shirt pocket of the deceased along with a\r\n‘Dah’ that was found lying at the spot next his body. The point sought to be made was\r\nthat in the above backdrop, the High Court ought not to have discarded the testimony of\r\nPW-1 and PW-17 to arrive at a conclusion that this was a case of cold-blooded murder\r\ncommitted by the appellant whereas he had acted in the heat of the moment, purely in\r\nhis self defence.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. Per contra, Ms. Aishwarya Bhati, learned Additional Solicitor General, appearing\r\nfor the respondents – Union of India, has stoutly defended the findings returned by the\r\nGSFC and upheld the High Court. She submitted that the High Court cannot be faulted\r\nfor disbelieving the testimony of PW-1, an eye-witness to the incident who was on duty\r\nat the Rubber plantation along with the appellant on the fateful day. It is her contention </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that the findings of the GSFC are sound and reliance has rightly been placed on the\r\ntestimonies of the local villagers, namely, Sapan Das (PW-2), another witness by the\r\nname of Sapan Das (PW-3), Tapan Das (PW-4) and Sunil Das (PW-5), who had stated\r\nthat the appellant had summoned the deceased and then shot at him twice without any\r\nprovocation. She submitted that the testimony of the doctor (PW-10) was a clincher\r\nand left no manner of doubt that the appellant had made the deceased to kneel down\r\nand thereafter fired two shots directly at him, causing his death.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. We may commence the discussion by first observing that the instinct of selfpreservation is embedded in the DNA of every person. The doctrine of the right to\r\nprivate defence is founded on the very same instinct of self-preservation that has been\r\nduly enshrined in the criminal law. The provisions that deal with the right of private\r\ndefence have been enumerated in Sections 96 to 106 of the IPC and fall under Chapter IV that deals with General Exceptions. Section 96 IPC states that nothing is an offence\r\nwhich is done in the exercise of the right of private defence. Whether a person has\r\nlegitimately acted in exercise of the right of defence given a particular set of facts and\r\ncircumstances, would depend on the nuance of each case. For arriving at any\r\nconclusion, the Court would be required to examine all the surrounding circumstances.\r\nIf the Court finds that the circumstances did warrant a person to exercise the right of\r\nprivate defence, then such a plea can be considered. Section 97 IPC states that every\r\nperson has a right of defence of person as well as of property. Section 99 IPC refers to\r\nthe acts against which there is no right of private defence and the extent to which the\r\nsaid right can be exercised. On a perusal of the aforesaid provision, it is apparent that\r\nthe rights vested under Sections 96 to 98 and 100 to 106 IPC are broadly governed by\r\nSection 99 IPC.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Section 100 IPC throws light on the circumstances in which the right of private\r\ndefence of body can be stretched to the extent of voluntarily causing death. To claim\r\nsuch a right, the accused must be able to demonstrate that the circumstances were\r\nsuch that there existed a reasonable ground to apprehend that he would suffer grievous\r\nhurt that would even cause death. The necessity of averting an impending danger is the\r\ncore criteria for exercising such a right. Both Sections 100 and 101 IPC define the\r\ncircumstances in which the right of private defence of the body extends to causing<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>death or causing any harm other than death. Provisions of Sections 102 and 105 IPC\r\nstipulate the stage of commencement and continuance of the right of private defence of\r\nthe body and property respectively and state that the said right commences as soon as\r\na reasonable apprehension of danger to the body arises from an attempt or threat to\r\ncommit the offence, though such an offence may not have been committed. The\r\nprovisions state that it continues as long as such an apprehension or danger to the\r\nbody continues.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. In Rizan and Another v. State of Chhattisgarh through the Chief Secretary,\r\n Government of Chhattisgarh, Raipur, Chhattisgarh  , this Court has observed that\r\nthe accused need not prove the existence of private self-defence beyond reasonable\r\ndoubt and that it would suffice if he could show that the preponderance of probabilities\r\nis in favour of his plea, just as in a civil case. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. Section 105 of the Indian Evidence Act, 1872 states that the burden of proof\r\nrests with the accused who takes up the plea of self defence. In the absence of proof,\r\nthe Court will not be in a position to assume that there is any truth in the plea of self defence. Thus, it would be for the accused to adduce positive evidence or extract necessary information from the witnesses produced by the prosecution and place any other\r\nmaterial on record to establish his plea of private defence.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. To sum up, the right of private defence is necessarily a defensive right which is\r\navailable only when the circumstances so justify it. The circumstances are those that\r\nhave been elaborated in the IPC. Such a right would be available to the accused when\r\nhe or his property is faced with a danger and there is little scope of the State machinery\r\ncoming to his aid. At the same time, the courts must keep in mind that the extent of the\r\nviolence used by the accused for defending himself or his property should be in\r\nproportion to the injury apprehended. This is not to say that a step to step analysis of\r\nthe injury that was apprehended and the violence used is required to be undertaken by\r\nthe Court; nor is it feasible to prescribe specific parameters for determining whether the\r\nsteps taken by the accused to invoke private self-defence and the extent of force used\r\nby him was proper or not. The Court’s assessment would be guided by several\r\ncircumstances including the position on the spot at the relevant point in time, the nature\r\nof apprehension in the mind of the accused, the kind of situation that the accused was\r\nseeking to ward off, the confusion created by the situation that had suddenly cropped up <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">resulting the in knee jerk reaction of the accused, the nature of the overt acts of the party\r\nwho had threatened the accused resulting in his resorting to immediate defensive action,\r\netc. The underlying factor should be that such an act of private defence should have\r\nbeen done in good faith and without malice.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>22. Being mindful of the afore-stated parameters, we may examine the plea of selfdefence raised by the appellant in the attending facts and circumstances of the case.\r\nThe factum of rampant smuggling in the area has not been disputed by either side. The\r\nrecords reveal that border fencing in the area in question had been erected just a few\r\nmonths before the incident had taken place. Prior to that, many villagers used to freely\r\nindulge in smuggling activities by crossing over to the Bangladesh side and vice versa.\r\nA couple of months after the fencing had been fixed along the International border with\r\nBangladesh, there was an incident where smugglers had assaulted one of the members\r\nof the Battalion when he was trying to prevent them from crossing the border. That the\r\ndeceased used to indulge in smuggling activities and his name was mentioned in the list\r\nof smugglers maintained by the BSF, is also a matter of record.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. Having scanned the testimony of the prosecution witnesses, we are of the\r\nopinion that the testimony of CT H Vijay Kumar (PW-1) cannot be completely discarded, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as done by the GSFC. He has deposed that when he and the appellant were patrolling\r\nin the area on the relevant date, they had seen three persons crossing the international\r\nborder from Bangladesh side at 8.00 AM. On noticing the intruders, they had challenged\r\nthem to stop at a distance of 50 meters. But the intruders ran away in the direction of\r\nBangladesh. At this, PW-1 and the appellant had turned back and while continuing with\r\ntheir patrolling duty, they saw 6-7 persons rushing towards them from the side of\r\nBangladesh, carrying weapons like ‘Dah’, ‘Bhala’ and ‘Lathi’ in their hands. They\r\nmanaged to surround the appellant, who was closer to them. Apprehending an\r\nimminent and real threat to his life, the appellant had fired from his rifle at the intruders in\r\nself defence and the deceased who was a part of the group, sustained bullet injuries and\r\nhad fallen on the ground. The trajectory of the bullets indicates that the firing took place\r\nfrom a higher position vis-à-vis the deceased. But that does not necessarily mean that\r\nthe appellant had summoned the deceased and made him crouch on the ground before\r\nshooting at him, as assumed by the High Court. The uneven terrain of the Rubber\r\nplantation with slopes and undulating surface would offer a plausible alternate\r\nexplanation for the trajectory of the bullets fired by the appellant at the deceased. If the\r\nformer was positioned at an elevated spot, then it was inevitable that the bullets would\r\nhave hit the chest of the deceased who was down below the slope, and made a path </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">downwards in the body. Thus the preponderance of probabilities would swing in favour\r\nof the plea of self defence taken by the appellant.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. On a broad conspectus of the events as they had unfolded, we are of the opinion\r\nthat the right of private self defence would be available to the appellant keeping in mind\r\npreponderance of probabilities that leans in favour of the appellant. In a fact situation\r\nwhere he was suddenly confronted by a group of intruders, who had come menacingly\r\nclose to him, were armed with weapons and ready to launch an assault on him, he was\r\nleft with no other option but to save his life by firing at them from his rifle and in the\r\nprocess two of the shots had pierced through the deceased, causing his death. We are\r\ntherefore of the opinion that the appellant ought not to have been convicted for having\r\ncommitted the murder of the deceased. Rather, the offence made out is of culpable\r\nhomicide not amounting to murder under Exception 2 to Section 300 IPC, thereby\r\nattracting the provisions of Section 304 IPC.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. In view of the aforesaid discussion, the appeal is partly allowed and the\r\nimpugned judgment is modified to the extent that the appellant is held guilty for the\r\noffence of culpable homicide, not amounting to murder as contemplated under\r\nException 2 to Section 300 IPC. Records reveal that by the time the appellant was\r\ngranted bail by this Court on 4th July, 2016, he had already suffered incarceration for a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">period of over eleven years, which given the peculiar facts and circumstances of the\r\npresent case, is considered sufficient punishment for the offence. The appellant is\r\naccordingly set free for the period already undergone and the bail bonds stand\r\ndischarged.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>27. The appeal is disposed of on the above terms.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '40fc09ee54a0df3cf0fceba4bf464daa.jpeg', '01dd43f1aef109543e4ba7e2d934681c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-23', 1, '', '', '2022-06-22 19:47:47', '2022-06-23 06:26:55');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1855, '6eD8OTyLbIFdgTCVgjVUesMRj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Partnership. New person coming in as partner is not entitled to the fruits of a decree obtained by the persons who were partners at the time of the accrual of the cause of action. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S C.S. Company and others Vs The Kerala State Electricity Board and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>A.S 86 and 113 of 2003 decided on 16 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P.B Suresh Kumar and Justice C.S. Sudha.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The brief facts in O.S.No.345/1987 – According to the plaintiff,\r\nthe Board, the work of “Kakkad Hydro Electric Project – construction of\r\nconcrete lined power tunnel” was initially awarded to a contractor, namely,\r\nSri.G. Gopinathan. However, on 18/06/1981 the contract was terminated by\r\nthe Board, as the contractor committed breach of the same. Consequent to the\r\ntermination of the contract, the balance work had to be re-tendered. The\r\ndefendants submitted their tender dated 20/01/1983, which was accepted by\r\nthe Board on 13/04/1983. The estimated Probable Amount of Contract\r\n(P.A.C.) was ?3,46,06,440/- whereas the contract P.A.C. was ? 5,57,20,680/-,\r\nwhich is 88% above the estimated rate. On 12.05.1983 a contract agreement\r\nwas executed between the parties, in which the Board has been represented\r\nby its Chief Engineer.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n 2.1. After the work was awarded to the defendants, the Board had\r\nhanded over the entire site to it. The Officers of the Board had extended\r\ntheir full co-operation to the Firm and had provided all the necessary and\r\nrequired facilities to enable the latter to carry out the work within the period\r\nstipulated in the agreement, which was 12/02/1987. The work order issued\r\non 13.04.1983 specified that the Firm should commence the work within 30 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">days, that is, on or before 12.05.1983 after executing the agreement within\r\nthat period. Though the agreement was executed on 12.05.1983, the\r\ndefendants failed to commence the work within the period specified in the\r\nagreement. The work was started only on 01.07.1983.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 2.2. After the work was awarded to the defendants, they started\r\nraising untenable contentions contrary to the terms of the agreement.\r\nThough the Board had sanctioned sufficient advance to the defendants, they\r\nwere unable to maintain or achieve the progress as per the work schedule\r\nfixed in the agreement. They failed to mobilize the required number of\r\nskilled and unskilled labourers to achieve the desired progress of the work.\r\nThey were not in possession of the required materials or machinery and did\r\nnot have the capacity to procure them also. They did not have any past\r\nexperience in executing works of similar nature and hence was unable to\r\ncarry out or execute work of such magnitude. In spite of repeated requests\r\nby the Board, the progress of the work was very slow. Finally, when the\r\nBoard was convinced that the defendants would not be in a position to\r\ncomplete the work within the period stipulated, the Chief Engineer on\r\n26/06/1984, issued a notice calling upon the former to show cause why the\r\ncontract should not be terminated. </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2.</span></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3.After the termination of the contract, the Board on 14/12/1985\r\nre-tendered the work, which work had to be entrusted to three different\r\ncontractors by splitting the work into three parts as the Board wanted the\r\nwork to be completed at the earliest. The total amount of the re-tendered\r\nwork comes to ?899.71 lakhs. Thus, the Board has incurred quite a heavy\r\nloss due to the default on the part of the defendants and hence is entitled to\r\nrecover damages. The exact loss sustained can be ascertained only after the\r\ncompletion of the work. However, based on the difference in P.A.C. while retendering the work, the loss and damages sustained by the Board comes to\r\n?451 lakhs. As the re-tendering was conducted at the risk and cost of the\r\ndefendants, they are bound to compensate the loss of ? 451 lakhs sustained\r\nby the Board, which represents the difference in the contract amount, which\r\nthe plaintiff has already sustained based on the difference in the P.A.C. alone.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The defendants filed written statement disputing and denying\r\nthe plaint allegations and contended thus- When the contract was awarded to\r\nthe first defendant Firm, the plaintiff was not in possession of the entire site.\r\nIt was occupied by the equipment and machineries of the previous contractor.\r\nIn spite of the plaintiff being requested several times to clear the site and\r\nhand over possession, they failed to do so. Finally, in the last week of June,\r\n1983, the defendants cleared the site by shifting the articles of the previous\r\ncontractor to a portion of the site and was forced to take possession of the\r\nremaining site on 29/06/1983. The failure of the plaintiff to hand over the\r\nentire site within the date stipulated in the agreement, is a breach of the terms <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the contract.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.2. After the illegal termination of the contract, no inventory\r\nwas taken in the presence of the defendants with regard to the work done, the\r\nplants, the machineries, the tools and other articles of the defendants stored\r\nin the premises. The inventory, if any, taken by the plaintiff, is without giving\r\nsufficient or proper notice and in the absence of the defendants or their\r\nrepresentatives, and therefore not binding on them. After the termination of\r\nthe contract, the costly machineries, tools, plants and vehicles and other\r\nmaterials brought to the site by the defendants were not allowed to be taken <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">back and they have been illegally detained at the site by the plaintiff in\r\nviolation of the agreement. In spite of repeated requests, these articles have\r\nnot been returned by the plaintiff and they have refused to return the same on\r\nfrivolous grounds.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3.3. Due to the illegal termination of the contract, the\r\ndefendants have been deprived of the opportunity of executing a major work\r\nfor no fault of theirs. Had the work been allowed to be completed by the\r\ndefendants, they would have obtained 20% of the total contract value as\r\nprofit, which would come to ?1,55,96,000/-. Further, they have completed\r\n650 meters of tunnel work in addition to several other works and so are\r\nentitled to be paid for the same. The total amount due to the defendants is ?\r\n750 lakhs for which the first defendant issued a registered notice dated\r\n17/08/1987 to the plaintiff demanding payment of the said amount. The\r\nplaintiff has failed to pay the amount to the defendants. The plaint claim is\r\nwithout any bonafides and hence the suit is liable to be dismissed with costs.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. The points that arise for consideration in A.S.No.86/2003\r\nare -</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Has the plaintiff Board incurred any loss due to the retendering of the contract, as alleged in O.S.No.345/1987? If so,\r\nare they entitled to recover or realize the loss from the\r\ndefendants?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) Is there any infirmity in the findings of the court below\r\ncalling for an interference by this Court?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(iii) Reliefs and costs.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 10.1. The points that arise for consideration in A.S.No.113/2003\r\nare -</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Is there any infirmity in the finding of the court below that\r\nO.S.No.1291/1992 is not maintainable?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) Is the termination of the contract by the defendants, illegal or\r\narbitrary as alleged by the plaintiff? If so, is the plaintiff entitled\r\nto realize the profit that would have been derived by them had\r\nthey been permitted to complete the execution of the work?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iii) Is there any infirmity in the findings of the court below\r\ncalling for an interference by this Court?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iv) Reliefs and costs. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Point no.(ii)& (iii) in A.S.No.113/2003: - It was submitted\r\nby the learned counsel for the Firm that the contract envisages performance\r\nof reciprocal promises. However, the Board failed to perform its part of the\r\ncontract and hence the reason why the Firm was unable to achieve the\r\ndesired progress in the work. That being the position, the termination of the\r\ncontract is bad and arbitrary and for no fault of the Firm. According to the\r\nBoard, when Ext.A79 show cause notice dated 26/06/1984 was issued, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Firm had completed only 1% of the total work as against the 20% that ought\r\nto have been achieved. In spite of several directions, no earnest efforts were\r\nmade by the Firm to speed up the execution of work or deploy necessary men\r\nand machinery to achieve the target. Realizing that it would be impossible for\r\nthe Firm to complete the execution of the work, the Board as per Ext.A77\r\norder dated 30/08/1984 terminated the contract and as per Ext.A78 letter\r\ndated 10/10/1984 informed the Firm that the contract had been terminated\r\nw.e.f. 22/08/1984 at the risk and cost of the latter. It was also pointed out that\r\nthe various communications of the Board to the Firm, produced and marked\r\non behalf of the Board would make it absolutely clear that the former was\r\njustified in terminating the contract and hence no claim for damages or\r\ncompensation by the Firm would lie.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>14. The Firm refers to breach of several reciprocal promises\r\nwhich required to be performed by the Board, to substantiate their argument\r\nthat the termination of the contract is bad. Therefore, the first point to be\r\ndecided is whether the termination of the contract by the Board is justified or\r\nwhether the same is bad, illegal or arbitrary. To arrive at a conclusion on this\r\npoint, we will have to deal with the breaches alleged to have been committed\r\nby the Board. The first breach alleged to have been committed by the Board <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is the delay in handing over the site to the Firm. Pursuant to the bid of the\r\nFirm being accepted, Ext.A1(a) work order is seen issued on 13/04/1983. As\r\nper the work order, the Firm had to commence work within 30 days, i.e., by\r\n12/05/1983 and within this period, was to execute a written agreement with\r\nthe Board. Ext.A1 agreement was executed on 12/05/1983. According to the\r\nBoard, even after the execution of Ext.A1 agreement, the Firm failed to\r\ncommence work as stipulated in the agreement and commenced work only\r\non 01/07/1983, that too, after repeated directions in the matter. The Firm on\r\nthe other hand contends that this delay occurred as the site was never handed\r\nover to them within the time stipulated in the agreement. According to the\r\nFirm, when the contract was awarded to them, the Board was not in\r\npossession of the site. On the other hand, it was covered with the machines,\r\nplants, sheds etc. of the previous contractor. Though the Firm requested the\r\nBoard to remove them and handover vacant possession of the site, the same\r\nwas done after much delay. Hence the delay in commencement of the work\r\noccurred only due to fault of the Board.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>36. Admittedly there is no provision in the agreement\r\nexecuted between the parties for grant of mobilization advance. However, as\r\nper Ext.A5 dated 06/05/1983 the Firm requested the Board to give them ?25\r\nlakhs as mobilization advance and ?35 lakhs for the purchase of machinery\r\nfor which they expressed their willingness to provide bank guarantee.\r\nTherefore, it is the Firm themselves who had made the offer to furnish bank\r\nguarantee and the allegation that it was the Board that demanded the bank\r\nguarantee is incorrect. Admittedly an amount of ?19 lakhs had been\r\nsanctioned and the same had been credited to the account of the Firm also.\r\nThe allegation that the bank and the Board colluded together, manipulated\r\nthe records and withdrew the amount from their account without their <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">knowledge is not true. This is evident from Ext.A20 letter given by the\r\nExecutive Engineer to the Manager, SBT, Vadasserikkara, in which they\r\nrequest for stop payment of the cheque dated 29/06/1983 for ?19 lakhs issued\r\nin favour of the Firm. It is stated that this payment was made on the\r\nassurance by the Firm that they would start the work from the morning of\r\n30/06/1983. As they failed to start the work as agreed to by them, the same\r\nwas treated as a breach of the contract and so the Engineer requested the\r\nBank to stop the payment of the particular cheque until further intimation.\r\nThe Firm does not have a case that they did commence the work as agreed to\r\nby them on the morning of 30/06/1983. Admittedly after about two weeks or\r\nso, the mobilization advance was released after the work commenced.\r\nTherefore, there cannot be any breach of the contract as alleged by the Firm</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>37. The last breach alleged is nonpayment of part bills and\r\nadvance payments. According to the Firm, there was illegal stop payment of\r\nmobilization advance violating the terms of Ext.B9; full amount of\r\nmobilization advance had not been given; monthly part payments for the\r\nwork done were never made; advance for the machineries purchased and\r\nbrought to the site was never paid; advance payment for the preliminary and\r\nenabling works was never made. Several payments due to the Firm were <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">never paid promptly which also affected the progress of the work. The\r\nallegation regarding mobilization advance has already been answered. The\r\nallegation that they were not paid for the works done by them is also\r\nincorrect because several communications on record, namely, Exts.A83,\r\nA83(a), A84, A85, A86, A97 etc. show that the Board had requested the\r\nrepresentatives of the Firm to be available at the site for preparation of\r\ninventory and for taking measurements of the work completed by them. But\r\nit is seen that the Firm never co-operated and they also did not send any of\r\ntheir representatives to the site. After having not co-operated with the\r\npreparation of the inventory, they later on started objecting to the inventory\r\nprepared by the Board. In such circumstances, the Firm cannot be heard to\r\ncontend that the amounts due to them were not paid promptly by the Board.\r\nTherefore, it can only be concluded that there was no breach of the terms of\r\ncontract by the Board as alleged by the Firm. That being the position, the\r\nFirm cannot claim any loss of profit from the Board. Hence there is no\r\ninfirmity in the court below rejecting the plaint claim and so no interference\r\nis called for into the findings of the court below.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>38. Point no.(i) & (ii) in A.S.No.86/2003 -According to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Board, after terminating the contract with the Firm, the work was re-tendered\r\non 14/12/1985. The total amount for which the work was allotted to three\r\ncontractors came to ?899.71 lakhs. As a result of the re-tender, the Board\r\nsuffered a loss of ?451 lakhs. As the re-tendering was conducted at the risk\r\nand cost of the Firm, they are bound to compensate the Board for the loss and\r\ndamages to the extent of ?451 lakhs, which represent the difference in the\r\ncontract amount, which the Board has sustained based on the difference in\r\nP.A.C. alone. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">39. The fact that the work had to be re-tendered for the\r\naforesaid sum is not disputed by the Firm. The only contention of the Firm is\r\nthat they are not liable for the same as the contract was illegally, arbitrarily\r\nand wrongly terminated by the Board, which contention has already been\r\nrejected. Ext.A81 letter dated 02/12/1995 from the Chief Engineer to the\r\nSecretary, KSEB, states that the expenditure incurred in the three re-arranged\r\ncontract after the termination of the contract with the Firm comes to\r\n?12,70,46,557/-. This document has not been disproved or discredited.\r\nExt.A81 shows that the Board has incurred more expenditure than what is\r\nclaimed in the plaint. The Board has sought for ?451 lakhs but the court\r\nbelow has granted only ?35 lakhs. What was the logic or the ground or how </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the figure of ?35 lakhs was arrived at is not clear. However, as the Board has\r\nnot preferred any appeal, we do not intend to go into the same. In these\r\ncircumstances, no interference is called for into the findings of the court\r\nbelow on this aspect also. Points answered accordingly.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>41. There is only one plaintiff in the suit, who is described asM/s. C.S. Company, represented by its Managing Partner, Jaganatha Prasad.\r\nAccording to the Firm, one of the partners had retired subsequent to\r\nexecution of Ext.A1 agreement with the Board. The partnership was\r\nreconstituted and a new partner came in. This happened before the suits were\r\ninstituted. Section 32 of the Indian Partnership Act, 1932 deals with the\r\nliability of a retiring partner. Sub-section (2) to Section 32 says that a\r\nretiring partner may be discharged from any liability to any third party for\r\nacts of the firm done before his retirement by an agreement made by him\r\nwith such third party and the partners of the reconstituted firm, and such <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">agreement may be implied by a course of dealing between such third party\r\nand the reconstituted firm after he had knowledge of the retirement. Subsection (3) says that notwithstanding the retirement of a partner from a firm,\r\nhe and the partners continue to be liable as partners to third parties for any\r\nact done by any of them which would have been an act of the firm if done\r\nbefore the retirement, until public notice is given of the retirement.\r\nTherefore, unless a retiring partner follows the procedure contemplated under\r\nthe aforesaid provisions, he cannot just resign from the partnership and\r\nescape from the liabilities, if any, of the firm. In this case, there is no\r\nevidence on record to show that such a course has been adopted. Therefore,\r\nall the persons who were partners at the time of accrual of the cause of action\r\nwould certainly be liable for the liabilities incurred by the Firm. Section 11 of\r\nthe Partnership Act says that subject to the provisions of the Act, the mutual\r\nrights and duties of the partners may be determined by a contract between the\r\npartners, which contract can be express or implied. The terms and conditions\r\nunder which the partnership in this case was reconstituted and the contract if\r\nany relating to the mutual rights and duties of the partners when a new\r\npartner came in are not known.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>43. As held by the Hon’ble Supreme Court in Purushottam\r\nUmedbhai & Co. vs. M/s. Manilal and Sons, AIR 1961 SC 325, Order\r\nXXX is an exception to Section 45 of the Contract Act, insofar as it allows\r\none more partner to institute a suit, provided, the suit is brought in the name\r\nof the Firm. The policy underlying Order XXX is no more than to afford\r\nfacilities in the joinder of numerous parties. It thus seeks to avoid a long\r\narray of plaintiffs or defendants and allows a convenient mode of institution\r\nof suits by or against partners collectively who carry on business under a\r\nparticular name.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>44. The expression “such persons” in Order XXX would mean\r\npersons who are partners at the time when the cause of action accrued\r\n(Mathuradas Canji Matani vs. Ebrahim Fazalbhoy, AIR 1927 BOMBAY\r\n581). A decree passed against a Firm is binding on all persons who were\r\npartners on the day when the cause of action accrued. That being the\r\nposition, at best, the consequence of a new person coming in would only\r\nmean that he would not be entitled to the fruits of the decree if any obtained\r\nby the persons who were partners at the time of the accrual of the cause of\r\naction.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>45. Further, the scope and ambit of the provisions of Rules 1\r\nand 2 of Order XXX of the Code is different from the provisions of S. 69(2)\r\nof the Partnership Act. The provisions contained in Rules 1 and 2 are\r\nprocedural, whereas the provisions of S. 69(2) are substantive and create a\r\nbar at the threshold of the filing of a suit by or on behalf of a firm if the\r\nconditions mentioned therein are not fulfilled. If the parties had not been\r\nproperly described or if there was a defective description of the parties, it was\r\nopen to the court to have allowed or directed amendment of the pleadings.\r\nSuch defect cannot be said to be fundamental or in the nature which cannot\r\nbe permitted to be corrected. [Purushottam Umedbhai & Co. (Supra)].\r\nTherefore, if at all there was a defect in the cause title, an amendment could\r\nhave been permitted by the court below. Such defect if any cannot be made a\r\nground to hold the suit to be not maintainable.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>46. Before we conclude, we briefly refer to I.A.No.2/2019 filed\r\nby the second respondent in A.S No.86/2003, that is, the fourth defendant in\r\nO.S. No.345/1987. He contends that he had never been served with summons\r\nin the case; that he was unaware of the institution of the suit and that he came\r\nto know about the judgment and decree only in the year 2012. Therefore, he\r\nfiled I.A.No.2460/2012 under Section 47 C.P.C. before the court below for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">setting aside the impugned judgment. Along with the said petition, he had\r\nalso filed I.A.No.2461/2012 under Sections 5 and 17 of the Limitation Act.\r\nThe court below dismissed both the applications.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">47. In I.A.No.2/2019 it is alleged that though I.A.No.2461/2012\r\nhad been filed quoting Sections 47 and 151 of the C.P.C, the petition was\r\nactually under Order IX Rule 13, for setting aside the decree passed ex parte\r\nagainst the 4th defendant. Against the order of the court below dismissing the\r\naforesaid I.As., he filed O.P.(Civil) No.16/2014 before this Court. The said\r\nO.P.(Civil) was posted along with A.S.No.86/2003. Thereafter it was delinked on the premise that it has to be heard separately. As the said O.P.\r\n(Civil) is connected to the issue in O.S.No.345/1987, no prejudice would be\r\ncaused to the parties, if the said petition is converted into an FAO and heard\r\nalong with the present appeal. Therefore, he filed I.A.No.3/2019, an\r\napplication under Order 43 Rule 1(d) read with Section 151 C.P.C in O.P.\r\n(Civil) No.16/2014, requesting this Court to permit the petitioner, namely the\r\n2nd respondent in the appeal, who is the 4th defendant in O.S.No.345/1987, to\r\nmake his submissions regarding the facts and contents in O.P.(Civil)\r\nNo.16/2014 along with the present appeal. The 4th defendant who has\r\nsuffered a decree, has not filed any appeal before this Court and therefore his </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">arguments cannot be entertained by this Court. I.A.No.2/2019 is thus\r\ndismissed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In the result, we find no merit in the appeals. Hence both\r\nthe appeals are dismissed.</b></span></p>', '7bb36c9fe372ea17870c15ce74a1b7dd.jpeg', 'f1926d020787f7f98731c819a1c450aa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-24', 1, '', '', '2022-06-23 17:38:11', '2022-06-24 06:24:54'),
(1856, '0Z0gc8IlwoQAhBxwUPzVg4KEH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Anti-defection law will not apply to a split in a Political Party constituting 2/3rd Legislators since it amounts to \'deemed merger\' under paragraph 4 of Tenth Schedule to the Constitution. Bombay High Court.  ', '<p class=\"MsoNormal\"><b>Girish Chodankar vs Speaker, Goa Legislative Assembly and\r\nOthers <br>\r\nWrit Petition No. 1228 of 2021 and connected matters decided on 24 February\r\n2022<br>\r\nJustice Manish Pitale and R.N. Laddha <o:p></o:p></b></p><p>\r\n\r\n</p><p class=\"MsoNormal\"><b>36. QUESTIONS FOR CONSIDERATION <br>\r\n(1) What is the true scope and purport of paragraph 4 of the Tenth Schedule to\r\nthe Constitution and whether sub-paragraphs (1) and (2) thereof operate in\r\ndistinct and independent fields and whether there is a ‘twin test’ contemplated\r\nunder the said paragraph for merger of political party to afford protection\r\nfrom disqualification of Member of a House? <br>\r\n(2) Whether sub-paragraphs (1) and (2) of paragraph 4 of the Tenth Schedule to\r\nthe Constitution are disjunctive, wherein sub-paragraph (1) is a complete code\r\nin itself and sub-paragraph (2) concerns only a deeming fiction? <br>\r\n(3) Whether the concept of split of a political party contemplated under\r\nparagraph 3 (now deleted) of the Tenth Schedule to the Constitution, is the\r\nsame as the concept of merger of a political party under paragraph 4 of the\r\nsaid Schedule? <br>\r\n(4) Whether the Full Bench Judgment of this Court in the case of Shah Faruq\r\nShabir v. Govindrao Ramu Vasave (supra), is a binding precedent for\r\ninterpretation of paragraph 4(2) of the Tenth Schedule to the Constitution? <br>\r\n(5) Whether the Judgment of the Supreme Court in the case of Shrimanth\r\nBalasaheb Patil v. Speaker, Karnataka Legislative Assembly (supra), impliedly\r\noverrules the Full Bench Judgment of this Court in the case of Shah Faruq\r\nShabir v. Govindrao Ramu Vasave (supra) and whether it effectively supports the\r\ncase of the Respondents? <br>\r\n(6) Whether the Full Bench Judgment of Punjab and Haryana High Court in the\r\ncase of Baljit Singh Bhullar v. Speaker, Punjab Vidhan Sabha (supra) and\r\nDivision Bench Judgment of the Gauhati High Court in the case of Speaker\r\nNagaland Legislative Assembly v. Imtilemba Sangtam (supra), lay down the\r\ncorrect position of law as regards paragraph 4(2) of the Tenth Schedule to the\r\nConstitution? <br>\r\n(7) Whether the Petitioners are justified in contending that if the\r\ninterpretation canvassed on behalf of the Respondents concerning paragraph 4(2)\r\nof the Tenth Schedule to the Constitution is accepted, it would militate\r\nagainst the object for which the Tenth Schedule was introduced in the\r\nConstitution, thereby encouraging defections, ignoring the political and\r\nConstitutional morality sought to be encouraged by the very introduction of the\r\nsaid Schedule? <br>\r\n(8) Whether the impugned Orders passed by the Respondent no. 1-Speaker deserve\r\ninterference?</b></p><p class=\"MsoNormal\"><b>ANSWERS:</b></p><p class=\"MsoNormal\"><b>55. Hence, question 1 is answered by holding that sub-paragraphs (1) and (2) of\r\nparagraph 4 of the Tenth Schedule operate in distinct and independent fields and that\r\nthe ‘twin test’ for merger of the original political party canvassed on behalf of the\r\nPetitioners, cannot be accepted.</b></p><p class=\"MsoNormal\"><b>Question 2 is answered by holding that subparagraphs (1) and (2) of paragraph 4 of the Tenth Schedule are disjunctive and subparagraph (2) addresses a situation where the deeming fiction as contemplated\r\ntherein comes into operation.</b></p><p class=\"MsoNormal\"><b>59. We are of the opinion that split of a political party as contemplated under\r\nparagraph 3 of the Schedule, as it existed, and merger of the original political party\r\nwith another political party as contemplated under paragraph 4 of the said Schedule\r\nare distinct concepts, not to be confused with each other. Therefore, reliance placed on\r\nbehalf of the Petitioners on the judgments in the case of Ravi S. Naik v. Union of India\r\n(supra), Jagjit Singh v. State of Haryana (supra) and Rajendra Singh Rana v. Swami\r\nPrasad Maurya (supra), is misplaced and they can be of no assistance for them to\r\nshow any error committed by the Respondent no. 1-Speaker while passing the impugned Orders.</b></p><p class=\"MsoNormal\"><b>76. Consequently, question 4 is answered by holding that the Full Bench Judgment\r\nof this Court in the case of Shah Faruq Shabir v. Govindrao Ramu Vasave (supra), is\r\nnot a binding precedent on this Court for interpretation of sub-paragraph (2) of\r\nparagraph 4 of the Tenth Schedule to the Constitution. We also find that even\r\notherwise the passing observations made by the Full Bench of this Court in the case of\r\nShah Faruq Shabir v. Govindrao Ramu Vasave (supra), are contrary to the law\r\nrecognised by the Supreme Court in the case of Shrimanth Balasaheb Patil v. Speaker,\r\nKarnataka Legislative Assembly (supra). It is also found that the aforesaid Judgment\r\nof the Supreme Court effectively supports the case of the Respondents herein and,\r\naccordingly, question 5 stands answered.<br></b></p><p class=\"MsoNormal\"><b>59.....We are of the opinion that what applies to split in a political party as per erstwhile\r\nparagraph 3 of the said Schedule, now deleted, does not apply to merger as\r\ncontemplated in paragraph 4 of the said Schedule, for the purpose of facilitating\r\nprotection of a member from disqualification under the said Schedule. Once this\r\ndistinction is understood, it becomes clear that the aforesaid contention raised on behalf of the Petitioners is misplaced and cannot be accepted. Thus, we answer the\r\naforesaid question 6 by holding that the position of law enunciated in the Full Bench\r\nJudgment of the Punjab and Haryana High Court in the case of Baljit Singh Bhullar v.\r\nSpeaker, Punjab Vidhan Sabha (supra) and Division Bench Judgment of the Gauhati\r\nHigh Court in the case of Speaker Nagaland Legislative Assembly v. Imtilemba\r\nSangtam (supra), lay down the correct position of law, as regards the interpretation of\r\nparagraph 4 of the Tenth Schedule to the Constitution and that we agree with the\r\nsame. \r\n<br></b></p><p class=\"MsoNormal\"><b>88. In view of the above, the aforesaid question is answered by holding that\r\nParliament in its wisdom has incorporated sub-paragraph (2) of paragraph 4 of the\r\nsaid Schedule, which cannot be held to be militating against the object of introduction\r\nof the Tenth Schedule and it cannot be said that the same would encourage\r\ndefections. The presumption of bona fide as per legislative wisdom, referred to in the\r\nabove-quoted paragraphs of the Judgment of the Supreme Court in the case of Kihoto\r\nHollohan v. Zachillhu (supra), cannot be ignored. \r\n<br></b></p><p class=\"MsoNormal\"><b>90. As regards the contentions raised on behalf of the rival parties about attempt\r\non the part of the Respondents to lead evidence to show merger of the original\r\npolitical party, opposition on the part of the Petitioners to permit such material being\r\nplaced on record and orders passed in such applications filed before the Speaker being\r\nmade subject matter of Writ Petition before this Court, all pale into insignificance. This\r\nis for the reason that such material or proof was not necessary, so long as it was an\r\nadmitted position that two-thirds members of the Legislature Party of the INC as well\r\nas the MGP had agreed for the merger and the deeming fiction in sub-paragraph (2) of\r\nparagraph 4 of the Tenth Schedule to the Constitution applied in full force. Hence, the\r\naforesaid question is answered by holding that the impugned Orders do not deserve\r\ninterference. </b></p><p class=\"MsoNormal\"><o:p></o:p></p>', 'f6f414ddaa458953124a07aff17774b6.jpg', '0565d24db0eb57181b14fd8002e3abf3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-23', 1, '', '', '2022-06-23 17:40:14', '2022-06-23 17:44:38'),
(1857, '39RAvgQnXLR9cUsnTVWs8qpjt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When violation of principles of natural justice is alleged, even if an alternative remedy is available, a writ petition is maintainable. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mariamma Roy Vs Indian Bank and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5673 of 2008 decided on 16 September 2008.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Tarun Chatterjee and Justice Aftab Alam.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. This appeal is directed against the judgment and final order dated 25-10-2006 passed by a learned Judge of the High Court of Kerala at Ernakulam in WP (C) No. 22642 of 2006 by which the writ petition was dismissed on the ground of availability of an alternative remedy to the appellant. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. We have heard the learned counsel for the parties and examined the impugned order as well as the other materials on record. After examining the impugned order as well as the materials on record, we are of the view that the order of the High Court cannot be sustained. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. Before the High Court, the appellant sought to contend that before passing the impugned order, the appellant was not at all issued with any notice. The High Court, however, without going into the question whether the notice was at all served on the appellant or not, dismissed the writ petition only on the ground that the appellant has got a right of appeal against the impugned order under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. In our view, the High Court was not justified in passing the impugned order on the aforesaid ground. It is well settled that even if an alternative remedy was available to an aggrieved party against a particular order, but if it was. open to such party to move a writ application and the court has the power to entertain the same if it finds that while passing the order there has been a violation of the principle of natural justice. That being the position, in the present case the appellant was not. served with any notice before passing the impugned order.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 6. That being the position and without going into the merits, the impugned order is set aside and the matter is remitted back to the High Court for decision on merits in accordance with law. The High Court is requested to dispose of the writ petition at an early date, preferably within six months from the date of supply of a copy of this order to it. We make it clear that we have not gone into the merits of the dispute raised by the parties before us, all questions are left open to be decided by the High Court in accordance with law. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. The impugned order is, therefore, set aside and the appeal is allowed to the extent indicated above. There will be no order as to costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3690e00a2ad49596259d3d10532fbf8c.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-24', 1, '', '', '2022-06-23 18:10:11', '2022-06-24 10:23:05');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1861, 'DjZL4cTPFcm4xZUzzJRb4oF36', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sports selection. Courts should give great credence to the decision of expert committee and coaches. Power of judicial review in matters relating to sports can be exercised only if there is an allegation of bad faith. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Swastika Ghosh Vs Table Tennis Federation of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. (C) 9488 of 2022 decided on 20 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dinesh Kumar Sharma.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The sum and substance of the grievances of the petitioners is that their\r\nnames have not been included in the final selection list by the Selection\r\nCommittee and the Committee of Administrator despite fulfilling the\r\nselection criteria as laid down by the federation. The grievances of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">learned counsels for the petitioners is that the process of the selection has\r\nnot been adopted correctly and the persons who have been included in the\r\nlist or being proposed to be sent to participate in the commonwealth game\r\nare much below in the ranking as compared to the petitioners before this\r\ncourt. The learned counsel for the petitioners have also challenged the\r\ncredentials of the members of the Selection Committee on the ground that\r\nsome of the members are who either themselves in person or their spouse are\r\nrunning the academy and therefore they should not entitled to be included in\r\nthe selection committee. The plea of the petitioners is that their names\r\nshould be included in the names of the panel to be sent for participating in\r\nthe commonwealth games.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. Per contra, the plea taken by respondent No.1 is that this court does\r\nnot have domain to enter into the selection process of the selection criteria.\r\nIt has been submitted that the names have already been finalized and have\r\nbeen sent to the Indian Olympic Association on 07.06.2022 and now the\r\nIndian Olympic Association might have sent the names further.\r\nMr.Moazzam Khan, learned counsel for respondent no.1/TTFI has relied\r\nupon Shumel vs. Union of India, 2010 SCC OnLine Del 4706 and Neha\r\nRathi vs. Union of India, 2010 SCC OnLine Del 4707. Learned counsel\r\nsubmits that a bare perusal of these judgments makes it clear that the courts\r\nare not an appropriate forum to make the selection of players to participate\r\nin the games and it is only for the expert bodies to decide.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5. Mr.Vineet Dhanda, learned Central Government Standing Counsel\r\nhas also submitted that this court under Article 226 of the Constitution of\r\nIndia does not have jurisdiction to enter into the nitty gritty of the selection\r\nprocess. It has been submitted that the names of the petitioners were duly</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">considered by the Selection Committee and the Committee of\r\nAdministrators. The Committee of Administrators after due deliberation has\r\nfinalised the names and therefore this court has no jurisdiction to entertain\r\nthe present petition.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>6. In rebuttal, Mr.Arijit Prasad, learned Senior counsel and Mr.Deepak\r\nBiswas learned counsel for the petitioners have submitted that the names\r\ncould not have been sent by the Federation in view of the order dated\r\n16.06.2022 passed by the High Court Karnataka in Writ Petition\r\nNo.11644/2022. Learned counsel for respondent no.1 reaffirmed that names\r\nhave been finalised and sent to Indian Olympic Association much before\r\n16.06.2022.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. It is a settled proposition of law that issuance of a writ is a\r\ndiscretionary remedy and the court can refuse to exercise its jurisdiction\r\neven if the petitioner may have a claim in law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. This court in Punjabi University’s case (supra) also inter alia held\r\nthat if the power of judicial review were to be extended into matters such as\r\nthese also, it would adversely affect the sports. I am in complete agreement\r\nwith the finding of this court that the court cannot appropriate to itself a\r\nposition as that of a Super Umpire or a Super Referee or in the present case\r\nto the position of Super Selector.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. It is a settled proposition that a mere mistake is not sufficient for this\r\nCourt to exercise powers under Article 226. A writ can be issued only when\r\nthere is something more than a mere error/mistake. The court in its writ\r\njurisdiction can interfere only if its decision is illogical or suffers from\r\nprocedural impropriety or shocks the conscience of the court in the sense\r\nthat it is in defiance of logic or moral standards. The court cannot clothe\r\nitself with the power to make choice and should not substitute its decision\r\nover a decision of an expert committee. It may be reiterated that the scope of\r\njudicial review is limited to the deficiency in decision making process and\r\nnot the decision. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">12. A perusal of the above order makes it clear that the committee of\r\nadministrators was entrusted with all the powers and duties of functioning of\r\nthe federation. The committee of administrators has minutely examined the\r\nclaim of each of the sport person and passed a detailed order while finalising\r\nthe list, which is under challenge. The power of judicial review in the\r\nmatters relating to sports can be exercised only if there is an allegation of\r\nbad faith. In such matters, the courts should give great credence to the\r\ndecision of the expert committee and the coaches. If the courts starts\r\ninterfering in the decision of such committees it would have a drastic\r\ninhibiting effect on its functioning. The scope of power of judicial review\r\nwas also laid down by the Supreme court in State of U.P. vs. Johri Mal\r\n(2004) 4 SCC 714 wherein it was held that the scope and extent of power of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the judicial review of the High Court contained in Article 226 of the\r\nConstitution of India would vary from case to case, the nature of the order,\r\nthe relevant statute as also the other relevant factors including the nature of\r\npower exercised by the public authorities, namely, whether the power is\r\nstatutory, quasi-judicial or administrative. It was held that the power of\r\njudicial review is not intended to assume a supervisory role or don the robes\r\nof omnipresent or to review governance under the rule of law or to enable\r\nthe Courts to step into the areas exclusively reserved by the suprema lex to\r\nthe other organs of the State. It was expressly observed that an order passed\r\nby an administrative authority exercising discretion vested in it, cannot be\r\ninterfered in judicial review unless it is shown that exercise of discretion\r\nitself is perverse or illegal.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. In Sushil Kumar vs. Union of India, 2016 SCC OnLine Del 3660,\r\nthis court inter alia held that a writ court will not interfere in exercise of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">discretion of the National Sports Federation and substitute its own judgment\r\nexcept where discretion is shown to have been exercised in an arbitrary or\r\ncapricious or perverse manner or is contrary to settled principles of\r\npractices. The court inter alia held that the decision, who should represent\r\nIndia in a sporting event is best left to the experts i.e. the concerned national\r\nsports federation.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. Though the jurisdiction of the court under Article 226 of the\r\nConstitution of India is very wide but it has to be used with circumspection.\r\nThe names in the present case have been finalised by the Committee of\r\nAdministrators appointed by this Court in Ms.Manika Batra vs. Table\r\nTennis Federation of India through the President and Ors. W.P.(C)\r\n10590/2021 vide judgment dated 11.02.2022. Learned counsel for the\r\npetitioners have taken this court through the findings of the Committee of\r\nAdministrators. A bare perusal of the findings of the Committee of\r\nAdministrators makes it clear that the Committee has threadbare examined\r\nthe entire issue and then after taking into account all aspects finalised the\r\nnames to be sent for participating in the commonwealth games. The Court\r\nin the present jurisdiction cannot substitute its own view with the view\r\narrived into by the Committee of Administrators and the Selection\r\nCommittee. The courts do not have any expertise to get into the selection\r\nand finalisation of players for participation at the international level. This\r\ncourt is conscious of the fact that any such findings can be interfered with\r\nonly if there is any perversity or arbitrariness in the findings arrived into by\r\nthe concerned federation. However, I do not find any such arbitrariness or\r\nperversity in the such order and furthermore, Mr.Moazzam Khan, learned\r\ncounsel for respondent no.1 has stated at bar that the names have already\r\nbeen finalised and sent to the Indian Olympic Association.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. The court has to take into account that the Selection\r\nCommittee/Expert Committee has to take account numerous factors while\r\ntaking decision of selecting sports person to represent the country. This <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">exercise cannot be as simple as comparing scores based on individual\r\nperformances. In the present case also Committee of Administrator has\r\nweighed different factors and therefore, this court finds itself unable to\r\ninterfere in exercise of its power of judicial review. This court also finds\r\ncomplete absence of any arbitrariness or malafide in the decision arrived at\r\nby the Committee of Administrators.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>18. To represent a nation and to participate, perform and excel in the\r\narena of international sports, a player must not only possess physical but\r\ngreat mental and emotional strength and agility. It is thus pivotal that there\r\nshould be no uncertainty in the minds of the players. Such litigations may\r\ndisrupt and impact the preparation and performance of the players.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>19. Thus, I consider that there is no substance in the present petitions.\r\nAccordingly, the petitions alongwith all the pending applications are\r\ndismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e99ec3ebfee562a4e09c54764af1b7d5.png', '3911939acee9069282350648c1add996.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-25', 1, '', '', '2022-06-24 17:13:52', '2022-06-25 06:23:30'),
(1858, 'aQP7BM9XmOXU18dymrn02PISB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bank cannot retain title documents after repayment of loan merely because another loan is pending repayment. Bombay High Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mr. Sunil Vs Union Bank of India.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 32 of 2022 decided on 13 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A.S. Chandurkar and Justice Urmila S. Joshi Phalke.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. By invoking the jurisdiction of writ, the question raised\r\nby the petitioner in the present writ petition is whether the\r\nrespondent-Bank has right to withhold the documents of security in\r\nview of Section 171 of the Indian Contract Act, 1872 (hereinafter\r\nreferred to as ‘the said Act’ for short) under the right of general lien\r\nespecially when petitioner has fully repaid the amount of loan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Brief facts are as under :\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>A] The petitioner was in need of financial assistance.\r\nAccordingly, he approached to the respondent-Bank. He applied for\r\nloan of Rs.21,00,000/- (Rs. Twenty one lacs) before the\r\nrespondent-Bank by way of loan application dated 13/08/2011.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>B] The respondent-Bank sanctioned loan vide its sanction\r\nletter dated 06/09/2011 on condition that loan is repayable in 300\r\nmonthly installments. The petitioner is also a Director and Personal\r\nGuarantor in the Company under the name and style as ‘Sunil\r\nHitech Limited’. As the Company was in debt went in the\r\nliquidation. By an order of National Company Law Tribunal\r\n(hereinafter referred to as ‘NCLT’ for short), Liquidator was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appointed. As per the contention of the petitioner due to financial\r\ncrisis he could not pay monthly installments, therefore, he\r\napproached the respondent-Bank for seeking permission to sale the\r\nflat which was purchased by him after obtaining the loan. The Title\r\nDeeds of said flat was handed over to the Bank as security. Despite\r\nrepeated requests no response received from the Bank. The\r\npetitioner issued a legal notice to the respondent with request to\r\nissue No Objection Certificate to sale the flat. But instead of giving\r\nNo Objection Certificate, respondent-Bank issued notice under\r\nSection 13(2) of the Securitisation and Reconstruction of Financial\r\nAssets and Enforcement of Security Interest Act, 2002 (hereinafter\r\nreferred to as ‘SARFAESI Act’ for short). By the said notice, loan\r\naccount of the petitioner was declared as NPA and the petitioner\r\nwas called upon to pay the loan amount. The respondent-Bank\r\nvide reply dated 24/03/2021 gave no objection to the petitioner to\r\nsale out the flat. The respondent-Bank further intimated the\r\npetitioner that he shall adjust the sale amount towards home loan\r\nand remaining amount is to be adjusted towards loan account of\r\nthe Company. Accordingly, the petitioner closed the loan account\r\ni.e. Home Loan. After the amount was satisfied, the petitioner\r\nrequested to remit the property papers to the purchaser Shri Ishwar </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Narsing Phunde but respondent-Bank has not paid any heed\r\ntowards it.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>C] Therefore, the petitioner by invoking jurisdiction under\r\nwrit, made a grievance that despite repeated request the\r\nrespondent-Bank has not remitted the papers. It was informed to\r\nhim that due to orders by Superior Officers they are unable to remit\r\nthe papers, therefore, the petitioner approached Assistant General\r\nManager with request to remit the paper but his efforts were futile.\r\nHence, this petition.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5. In response to the notice, respondent-Bank has filed its\r\nreply. As per the respondent-Bank the petitioner has alternate\r\nefficacious remedy before the Debt Recovery Tribunal, New Delhi\r\nand other Forum to deal, therefore, writ petition needs to be\r\ndismissed. It is further contention of the respondent-Bank that\r\nrespondent-Bank has filed an application before the Debt Recovery\r\nTribunal, New Delhi bearing Original Application No.491/2019\r\nagainst the petitioner and others for recovery of loan amount. The\r\npetitioner is a guarantor/Director/Borrower of Company namely\r\nSunil Hitech. The respondent-Bank has also moved an application </span></span><span style=\"font-size: 12pt;\">for attachment of property owned and possessed by the petitioner\r\nand the said matter is pending for final hearing on 14/01/2022,\r\ntherefore, till the out come of order of Debt Recovery Tribunal, the\r\nrespondent-Bank is unable to release the documents as prayed in\r\nthis petition.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>6. Learned counsel for the petitioner has submitted that\r\nthe documents of title had been furnished as security towards loan\r\naccount. He has already satisfied the amount towards the said loan\r\naccount. After satisfaction of the loan amount Bank has no right to\r\nretain the documents of title. In support of this contention he\r\nrelied upon the decision of the Hon’ble Apex Court in the case of\r\nZonal Manager, Central Bank of India vs. Devi Ispat Limited and\r\nothers (2010) 11 SCC 186, it is submitted that the respondent-Bank\r\nhad no legal right to retain the said documents of title.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">7. On the other hand, learned Counsel for the respondent\r\nsubmitted that in view of Section 171 of the said Act the action of\r\nthe Bank of retaining the documents of title is justified. It is\r\nsubmitted that though the petitioner has satisfied the loan amount\r\nobtained to purchase the flat but he is also the borrower and the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">guarantor in respect of another loan account regarding the loan\r\nwhich was obtained for the Company. The said Company went in\r\nthe liquidation. The liquidator has appointed and, therefore, the\r\nsaid Title Deed is required by the Bank for obtaining necessary\r\norders from the Debt Recovery Tribunal regarding the attachment\r\nof the property. The Bank was justified in exercising its right of\r\ngeneral lien over the said documents and sought dismissal of the\r\nsaid writ petition. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Section 171 of the said Act expresses the “common law\r\nprinciple that if a man has an article delivered to him, on the\r\nimprovement of which he has to bestow trouble and express, he has\r\nright to retain each until his demand is paid”. In its primary or\r\nlegal sense, “lien” means “a right of common law in a person to\r\nretain that which is rightfully and continuously in their possession\r\nbelonging to another until the present and accrued claims (of the\r\nperson in possession) are satisfied”. Thus, from the expression\r\n“bankers lien” it is cleared that Bank overall forms of security that\r\nare deposited by the borrower in the ordinary course of business,\r\nthere has to be a relationship of banker and customer between\r\nthem. In Brandao vs. Barnett, it was stated as under (All ER page\r\n722-H) “Bankers, most undoubtedly, have a general lien on all <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">securities deposited with them, as bankers, by a customer, unless\r\nthere be an express contract, or circumstances that show an implied\r\ncontract, inconsistent with lien”. It was held that by mercantile\r\nsystem the bank has a general lien over all forms of securities or\r\nnegotiable instruments deposited by or on behalf of the customer in\r\nthe ordinary course of banking business and that the general lien is\r\na valuable right of the banker judicially recognised and in the\r\nabsence of an agreement to the contrary, a banker has a general\r\nlien over such securities or bills received from a customer in the\r\nordinary course of banking business and has a right to use the\r\nproceeds in respect of any balance that may be due from the\r\ncustomer by way of the reduction of customer’s debit balance. Lien\r\ncontemplated under Section 171 of the said Act relates to goods\r\nbailed to bank. Strictly, it is confined to securities and properties in\r\nthe custody of a banker. Section 171 of the said Act expresses\r\n‘goods bailed to them’. The provision, therefore, indicates that the\r\nright to retain goods bailed is based on contract and retaining the\r\nsame in absence of contract is not permissible. A Division Bench of\r\nthis Court in the case of Surendra s/o Laxman Nikose vs. Chief\r\nManager and Authorised Officer, State Bank of India, Nagpur\r\n2013(5) Mh.L.J. 283 held that Bank cannot exercise its right of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">general lien over the Title Deeds deposited by the petitioner after\r\nthe entire loan amount was fully repaid by the petitioner.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. In the present case also the petitioner has repaid the\r\nentire amount of loan regarding the loan obtained to purchase the\r\nflat. The petitioner has produced on record Annexure-K the\r\naccount extract which shows that no balance amount remains to be\r\npaid in respect of loan account of the petitioner. It is also admitted\r\nby the respondent-Bank that the petitioner has paid the entire\r\namount against the loan which was obtained to purchase the flat.\r\nOnly contention of the respondent-Bank is that the petitioner is also\r\nborrower of Sunil Hitech Company. The petitioner as well as other\r\nDirectors have obtained the loan but the said Company went in\r\nliquidation and Liquidator is appointed. The amount is due from\r\nthe Company. The petitioner being the Director of the said\r\nCompany is liable to pay the loan amount and, therefore, the\r\ndocuments regarding the title of the property is not remitted by the\r\nCompany. It is further submitted by the Bank that Bank has already\r\nmoved an application before the Debt Recovery Tribunal, New\r\nDelhi bearing Original Application No.491/2019 against the\r\npetitioner and others for recovery of loan amount which is due\r\nagainst the Company and said application is pending for the\r\nhearing. It is further submitted by the respondent-Bank that till the\r\nout come of the order of the Debt Recovery Tribunal the respondent <span style=\"font-size: 12pt;\">is unable to release the said documents. Thus, the material on\r\nrecord shows that the petitioner has cleared the entire dues in\r\nrespect of loan which was obtained by him in his individual\r\ncapacity to purchase the flat. The said loan transaction came to an\r\nend, therefore, the relationship of the banker and customer\r\nbetween the petitioner and the respondent in respect of the\r\nconcerned loan account came to an end as he has repaid the\r\namount. The relationship of banker and customer could not have\r\nbeen continued when the petitioner has repaid the amount on\r\n31/05/2021 as the entire loan account is satisfied. The said\r\ntransaction has been completed and there is no further relationship\r\nbetween the petitioner and the Bank as a banker and customer.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>13. In such circumstances, the contention of the\r\nrespondent-Bank that it was exercising the right of general lien\r\nunder Section 171 of the said Act is not sustainable. Bank has also\r\nraised the issue that other alternate efficacious remedy is available\r\nto the petitioner before Debt Recovery Tribunal and, therefore, the\r\nwrit petition needs to be dismissed. In other words, it is the\r\ncontention of the respondent-Bank that writ jurisdiction is not\r\navailable to the petitioner as other remedy is available.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. The Hon’ble Bombay High Court in the case of DB\r\n(BKC) Realtors Pvt. Ltd. and anr. vs. Punjab National Bank 2017\r\nSCC Online Bom 957 held that the writ petition filed under Section\r\n226 of the Constitution of India is maintainable against the\r\nrespondent-Bank which is a nationalised bank.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. Admittedly, there was a relationship between the\r\npetitioner and the respondent as banker and customer. It is further\r\nclear from the pleadings that the Title Deed of the property in\r\nquestion was handed over to the respondent-Bank as a security.\r\nAdmittedly, said loan amount is repaid by the petitioner. Though\r\nthe respondent-Bank has submitted that there is another loan\r\naccount against the petitioner and Bank has already moved an\r\napplication to the Debt Recovery Tribunal for obtaining necessary\r\norders, Bank is at liberty to move against the petitioner and other\r\nDirectors to recover the said loan amount. Admittedly, said security\r\nwas given against the loan amount which was already satisfied by\r\nthe petitioner. In such a situation, it is not open for the respondentBank to continue to exercise its general lien for the security\r\ndeposited with it especially when the entire amount was repaid.\r\nSuch a general lien is not being exercised for a general balance of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">account as required under Section 171 of the said Act. Moreover, it\r\nwould not be open for the Bank to exercise its right of general lien\r\nfor the securities on the pretext of the banker and customer\r\nrelationship. It cannot exercise such general lien under Section 171\r\nof the said Act thus, there is no justification on the part of the\r\nrespondent-Bank to retain the said documents by relying upon the\r\nprovisions of Section 171 of the said Act.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18. In view of observation of the Hon’ble Apex Court in the\r\ncase of Zonal Manager, Central Bank of India Vs. Devi Ispat Limited\r\nand others (supra) relied upon by the petitioner it was held that\r\nCentral Bank of India being a nationalised bank was amenable to\r\nwrit jurisdiction. In the present case also respondent-Union Bank\r\nof India is a nationalised bank and, therefore, is amenable to writ\r\njurisdiction. According to the Bank another loan account is yet to\r\nbe cleared by the petitioner and, therefore, it’s security documents\r\nwere not returned. On the basis of the same the bank sought to\r\nexercise its right under Section 171 of the said Act and not remitted\r\nthe said documents to the respondent. Admittedly, said documents\r\nwere kept with the bank as a security towards the loan amount\r\nwhich is obtained by the petitioner in his individual capacity for </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">purchase of the flat. The said amount is duly paid and, therefore,\r\nbank was not justified in retaining the said documents by exercising\r\nright of lien on the said documents. Admittedly, bank has right to\r\nrecover the loan amount regarding the loan advanced to the\r\nCompany wherein the petitioner and other Directors are borrowers\r\nand guarantors. Bank is at liberty to recover the said loan amount\r\nand also at liberty to take the legal recourse but merely because\r\nanother loan account is there, wherein the petitioner and other\r\nDirectors are borrowers, bank has no right to retain the said\r\ndocuments by exercising the right of lien.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. It is open for the respondent-Bank to take such steps to\r\nsecure its interest regarding the said loan account however, by\r\ninvoking the provision of Section 171 of the said Act respondent- <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Bank has no right to withhold the Title Deeds especially when there\r\nis no relationship between the petitioner and the respondent as\r\nbanker and customer. Said act of the bank is not justifiable. Hence,\r\nfor the reasons recorded we have no hesitation to hold that the\r\nrespondent-Bank has no right of general lien over the Title Deeds\r\ndeposited by the petitioner after the entire loan amount was fully\r\nsatisfied by the petitioner.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. We, therefore, pass the following order :</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(a) The writ petition is partly allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(b) The respondent-Bank is directed to release the\r\ndocuments of title and other documents within a period\r\nof four weeks from today kept as a security in relation\r\nto Flat No.202, 2nd Floor, Adisun Terraces, Shilpa\r\nCo-operative Housing Society Limited, Manish Nagar,\r\nSomalwada, Nagpur.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(c) The Bank shall consider the petitioner’s request\r\nfor issuance of no-dues certificate in respect of his loan\r\naccount and take necessary steps within a period of four\r\nweeks from today </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(d) Respondent-Bank is at liberty to take appropriate\r\nsteps for recovery of loan amount before the Debt\r\nRecovery Tribunal in respect of loan account maintained\r\nin the name of Sunil Hitech Limited in accordance with\r\nlaw.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>22. Rule is accordingly made absolute. There will be no\r\norder as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '52da51d0d950c78e31a745864da73a44.jpeg', '11828082c13c04c882f2246b1bf50179.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-24', 1, '', '', '2022-06-23 18:37:14', '2022-06-24 12:27:36'),
(1859, 'stSfcIZVwF538GqhxouPtijwG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Labour Law. While dealing with the prayer of back wages, factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate court. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mulin Sharma Vs State of Assam and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6119 of 2016 decided on 12 July 2016.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice J. Chelameswar and Justice R.K. Agrawal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3) Brief facts:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(a) Mulin Sharma-the appellant herein, an M.A. in Sanskrit,\r\nwas employed as an Assistant Teacher (Classical/Sanskrit) in\r\nthe Rangsina High School, Karbi, Anglong District, Assam in\r\nthe year 1995. The school was provincialized in the year 1996\r\nas also the services of the appellant herein against the allotted\r\npost of Assistant Teacher.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(b) Owing to certain differences with the Headmistress\r\n(Respondent No. 5 herein) of the School, who incidentally is\r\nthe wife of Respondent No. 6 herein, who is also the Head\r\nMaster of the M.E. Section of the said school, the appellant\r\nherein was forced to sign the resignation letter under\r\ncompulsion, force and criminal intimidation by Respondent\r\nNo. 6 and his men on 22.05.1998 and he was not paid his\r\nsalary from 23.05.1998.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(c) Making a grievance against such forcible obtaining of\r\nresignation letter and signature therein, the appellant herein\r\nsubmitted a series of representations to various authorities to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">take action in the matter. When the appellant herein did not\r\nget any response in respect of his grievance relating to forceful\r\nobtaining of letter of resignation, he filed a Writ Petition being\r\nNo. 4047 of 1999 before the High Court. Learned single Judge\r\nof the High Court, by order dated 16.08.1999, directed as an\r\ninterim measure that if the appellant is working in the school\r\nin question as on today, he shall be allowed to continue.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(f) After the Order so passed by the Deputy Commissioner,\r\nthe Deputy Secretary, Education Department (Higher), Karbi\r\nAnglong Autonomous Council (KAAC) passed an order dated\r\n12.01.2004 accepting the resignation of the appellant herein\r\nwith effect from 16.10.2003, i.e., the date of the order passed\r\nby the Deputy Commissioner, with the stipulation that the\r\nappellant herein would not be entitled to any financial benefits\r\nw.e.f. 22.05.1998 since according to the said authority, he did\r\nnot attend his duties from 22.05.1998.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(g) Another consequential order dated 27.01.2004 was\r\nissued by the office of the Inspector of Schools, Karbi Anglong\r\nDistrict Circle, Diphu stating that the resignation letter dated\r\n22.05.1998 tendered by Shri Mulin Sharma, Classical Teacher\r\nat Rangsina High School is hereby accepted without any\r\nfinancial benefit with effect from 22.05.1998 since the\r\nincumbent concerned did not attend his duties.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(h) Being aggrieved by the order dated 16.10.2003 passed by\r\nthe Deputy Commissioner, the appellant herein preferred a\r\nWrit Petition being No. 2357 of 2004 before the High Court.\r\nLearned single Judge of the High Court, by order dated\r\n19.01.2007, partly allowed the petition by holding that the\r\nresignation was not voluntary without passing any direction\r\non the back wages.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5) In the facts and circumstances of the present case, it is\r\nundisputed that the resignation tendered by the appellant\r\nherein on 22.05.1998 was not voluntary and the courts below\r\nhave categorically held that the appellant herein is not entitled\r\nto back wages in the absence of any material on record to\r\nshow that he remained unemployed during the said period.\r\nNow, the question that arises for consideration is whether the\r\ncourts below erred in not granting back wages to the appellant\r\nherein or whether the appellant has made out a case for grant\r\nof back wages for the period 23.05.1998 to 16.08.1999 </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6) Learned single Judge of the High Court while holding\r\nthat the resignation was not voluntary, reinstated the\r\nappellant herein in service but denied him back wages.\r\nLearned counsel for the appellant contended before this Court\r\nthat the respondents did not allow the appellant herein to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">perform his duties in the school. In fact, the very same thing\r\nwas raised before the learned single Judge that the\r\nrespondents did not allow the entry of the appellant herein\r\ninto the School. The appellant herein signed the resignation\r\nletter under compulsion, criminal intimidation and force\r\napplied by the respondents on to him at their residence and\r\nforcefully they deprived him from entering into the school.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>7) The fact remains that the appellant herein did not\r\nperform his duties in the School at the behest of respondents.\r\nSimilarly, the fact of he being unemployed throughout the\r\nperiod was not proved; no material evidence was placed on\r\nrecord for the same. In that case, learned single Judge of the\r\nHigh Court was having only the remedy of reinstatement of the\r\nappellant herein in the service and he ordered so after\r\ncarefully examining that the resignation was not voluntary.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">8) The High Court, on the other hand, dealt with the\r\nquestion of back wages left open by learned single Judge as\r\nwell as the appeal filed by the respondents herein. The High\r\nCourt, on a correct appreciation of evidence on record </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dismissed the appeal filed by the respondents herein holding\r\nthat the resignation was not voluntary. Though the High\r\nCourt did not grant back wages to the appellant herein, a sum\r\nof Rs. 25,000/- was granted for wrongful denial of his\r\nemployment.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>9) We are fully satisfied that in the facts and circumstances\r\nof the case, back wages should not have been awarded to the\r\nappellant herein. In several cases, this Court has held that\r\npayment of back wages is a discretionary power which has to\r\nbe exercised by a court keeping in view the facts in their\r\nentirety and neither straitjacket formula can be evolved nor a\r\nrule of universal application can be laid down in such cases.\r\nThus, reinstatement does not necessarily result in payment of\r\nback wages which would be independent of reinstatement.\r\nWhile dealing with the prayer of back wages, factual scenario\r\nand the principles of justice, equity and good conscience have\r\nto be kept in view by an appropriate court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12) In the present facts and circumstances of the case, the\r\nappellant has not produced any material on record to prove\r\nthat he being unemployed during that period and has not\r\nmade out a case for grant of back wages for the aforesaid <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">period. The appellant herein did not attend the school during\r\nthat period and back wages cannot be granted to him for that\r\nperiod. He, however, should be reinstated in service and be\r\ngiven all other consequential benefits. Though he is not\r\nentitled to back wages, he is certainly entitled to an amount of\r\nRs. 25,000/-, in addition to the amount granted by the High\r\nCourt, for wrongful denial of service.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>13) In view of the above, the appeal is disposed of with the\r\nabove terms.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4f736b39ae773f39c2b6043862c14120.jpeg', '6ac58203e31ba5f9ba43c51828fc57c2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-25', 1, '', '', '2022-06-23 19:03:00', '2022-06-25 08:28:14');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1862, '7hbbZ0OP2YJJ5HldkNH4bA6Aq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Defamation. When a class of persons are mentioned to have been defamed and if such a class is indefinite, the complaint cannot be entertained. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Public TV (Kannada News Channel) and others Vs Bannadi Somanath Hegde.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 10262 of 2019 decided on 1 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The respondent has filed a private complaint\r\nu/s.200 of Cr.P.C. for the offence punishable under\r\nSections 499 and 500 of the Indian Penal Code (‘IPC’\r\nfor short) against the petitioners and other accused\r\nalleging that several media entities has spoken ill\r\nabout the advocate’s fraternity at large. The learned\r\nMagistrate after recording the sworn statement of the\r\ncomplainant took cognizance of the aforesaid offence\r\nand issued summons to the petitioners-accused among <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ther accused. Taking exception to this, the petitioners\r\nhave filed this petition.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>2. Sri. M.S.Shyam Sundar, learned Senior\r\ncounsel appearing for the petitioners submits that the\r\npetitioners are not aggrieved persons as defined under\r\nSection 499 of IPC, so as to maintain the complaint for\r\nthe offence punishable under Section 499 of IPC. In\r\nsupport, he has placed reliance on the decision of the\r\nHon’ble Apex Court in the case of S.KHUSHBOO Vs.\r\nKANNIAMMAL AND ANOTHER reported in AIR\r\n(SC)-2010-0-3196. He further submits that the\r\npetitioners-accused Nos.9 and 10 are media entities,\r\nhowever, summons have been issued against\r\nindividuals and the same is impermissible.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The allegation in the complaint is that\r\nsections of Media have spoken ill about the advocate’s\r\nfraternity which amounts to defamation under Section\r\n499 and 500 of IPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. In the present case the allegation is that the\r\npetitioners-accused have spoken ill about the advocate’s fraternity and the words complained of is\r\nnot against the complainant in his individual capacity.\r\nHence, the complainant is not an aggrieved person as\r\nenumerated under Section 198 of Cr.P.C., so as to\r\nmaintain the complaint for the offence punishable\r\nunder Sections 499 and 500 of IPC.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>ORDER: </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i) Writ Petition is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ii) The impugned proceedings in\r\nC.C.NO.1378/2012 pending on the file of the\r\nAdditional Civil Judge and JMFC Court, Kundapura,\r\nUdupi District, insofar it relates to accused Nos.9 and\r\n10 is hereby quashed.</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '14542db61167156d71b065ce805a359c.jpeg', '6f4475523674da8582acd92aea5519cf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-27', 1, '', '', '2022-06-24 17:27:52', '2022-06-27 08:27:13'),
(1863, 'l00aAxel9jRtWiFHtglyV9faC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Offence by Companies. A person cannot be prosecuted unless he is shown to be in-charge of the Company as Managing director or Director.  Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>David Mathai Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 8197 of 2019 decided on 13 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Respondent No.2 lodged the FIR before the Indiranagar Police Station alleging that, during the investigation conducted by the Directorate of Revenue Intelligence (DRI) Bangalore, it was found that E-seals supplied by company were passing clearances from Customs at Exports Port Gate even when it was not in a locked condition and it was also found that E-seals were tampered, that the particular seal could be scanned at a distance of few meters without being in a locked condition, and that there were email communications indicating that they had switched off the \"Tampering Alerts\" option in their software. It was further alleged as per the data retrieved from the emails corresponding to key persons of the company it was evident that the e-seals supplied by the company were reported to be tampered at the port of discharge, the company had switched off the feature on readers to detect the tempering of e-Seals lead to containers with the tampered seals leaving the country without being detected by the Customs Officers. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The Police registered the FIR for the offences punishable under Sections 66 (C), 72 (A) of the Information Technology Act, 2000, and Sections 406, 420 read with 34 of IPC. Taking exception to the same, this petition is filed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Learned counsel appearing for the petitioner-accused No.3 submitted that the petitioner-accused No.3 is not the Managing Director of the accused No.1 company as alleged in the FIR and in the absence of any material, the registration of the FIR against the petitioner-accused No.3 is without any substance. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>On the other hand, learned HCGP appearing for the State  submits  that  the  allegation  made  in  the  FIR  clearly discloses the commission of the offence alleged against the petitioner-accused No.3. Hence, the registration of the FIR does not warrant any interference and sought for dismissal of the petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space:pre\">	</span>The petitioner-accused No.3 in order to substantiate his claim that he is not the Managing Director, has produced Articles of Association of the accused No.1 company and also Company Master Data issued by the Ministry of Corporate Affairs. Perusal of the Articles of Association at Annexure-D and also Company Master Data indicates that Sudhendra Dankanikote and K.N. Anil Kumar are the only two directors of the accused No.1 company. These documents have not been controverted by the respondents and in the absence of any challenge to these documents, it is implied that the petitioner-accused No.3 is neither the Managing Director nor the Director of the Accused No.1 company. In the absence of any material that, the petitioner as the Managing Director of the accused No.1 company has committed the offence alleged against him, the registration of the FIR against the petitioner-accused No.3 is without any substance and it would be abuse of process of law if the investigation is allowed to be continued against the petitioner-accused.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Order: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space:pre\">	</span>The Criminal Petition is allowed</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ii)<span style=\"white-space:pre\">	</span>The impugned FIR in Crime No.172/2019 registered by the Indiranagar Police Station, Halasur Sub-Division in so far it relates to petitioner-accused No.3 is hereby quashed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4703a885e9767fbd46283618179f7247.jpeg', 'fd46fc565c6b825aeb1cbb82a9671faf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-25', 1, '', '', '2022-06-24 18:03:07', '2022-06-25 13:56:49'),
(1866, 'brlao4wJgfRfDFC0BKSJ62ExA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Electronic and news media should not publish Court proceedings in such a manner so as to get unnecessary publicity for its own paper or news channel. Such a tendency, which is indeed growing fast, should be stopped.  Supreme Court. ', '<p id=\"p_64\" style=\"font-family: \" times=\"\" new=\"\" roman\",=\"\" times,=\"\" serif;=\"\" font-size:=\"\" 16.9px;=\"\" text-align:=\"\" justify;\"=\"\"><span style=\"font-weight: bolder;\">S. Khushboo vs Kanniammal &amp; Anr&nbsp;<br></span><b>Criminal Appeal 913 of 2010 decided on 28 April 2010<br>Chief Justice K.B. Balakrishnan, Justice Deepak Verma and Justice B.S. Chauhan&nbsp;&nbsp;</b></p><p id=\"p_64\" style=\"font-family: \" times=\"\" new=\"\" roman\",=\"\" times,=\"\" serif;=\"\" font-size:=\"\" 16.9px;=\"\" text-align:=\"\" justify;\"=\"\"><b>Supreme Court of India on 28 April, 2010\r\nAuthor: . B.S. Chauhan\r\nBench: K.G. Balakrishnan, Deepak Verma, B.S. Chauhan\r\n REPORTABLE\r\n IN THE SUPREME COURT OF INDIA\r\n CRIMINAL APPELLATE JURISDICTION\r\n CRIMINAL APPEAL NO. 913 of 2010\r\n [Arising out of SLP (Crl.) No. 4010 of 2008]\r\nS. Khushboo ... Appellant\r\n Versus\r\nKanniammal &amp; Anr. ... Respondents<br></b></p><p id=\"p_64\" style=\"font-family: \" times=\"\" new=\"\" roman\",=\"\" times,=\"\" serif;=\"\" font-size:=\"\" 16.9px;=\"\" text-align:=\"\" justify;\"=\"\"><b>31. Before saying omega, it is necessary for us to point out certain unwarranted developments that have taken place ever since the matter was heard till date. In fact, during the course of hearing, certain queries were put to the learned counsel appearing for parties so as to clarify the legal issue involved in the matter but unfortunately, those queries have been highly misunderstood not only by media but also by common man. As a result thereof, we have been flooded with several letter petitions making a prayer for review of the order passed by us. It is pertinent to mention here that no order was passed by us and only during the course of hearing, we had either given some instances or put some questions to the learned counsel which were answered by them. Thus, this hyper active attitude of the common man was, indeed, not called for. Some have even gone to the extent of telling us that we should have known the Indian mythology before putting such question. Thus, whatever we have said during the course of the hearing should be reviewed. We fail to understand how such an attitude could be adopted by those learned persons who were involved in sending various letter petitions to us. Admittedly, all those persons who have sent letters to us were not present on that particular date but must have gathered information from the print and electronic media which evoked their sentiments to such an extent that they prayed for review.</b></p><p id=\"p_65\" style=\"font-family: \" times=\"\" new=\"\" roman\",=\"\" times,=\"\" serif;=\"\" font-size:=\"\" 16.9px;=\"\" text-align:=\"\" justify;\"=\"\"></p><p id=\"p_66\" style=\"font-family: \" times=\"\" new=\"\" roman\",=\"\" times,=\"\" serif;=\"\" font-size:=\"\" 16.9px;=\"\" text-align:=\"\" justify;\"=\"\"><b>32. It is, therefore, not only desirable but imperative that electronic and news media should also play positive role in presenting to general public as to what actually transpires during the course of the hearing and it should not be published in such a manner so as to get unnecessary publicity for its own paper or news channel. Such a tendency, which is indeed growing fast, should be stopped. We are saying so as without knowing the reference in context of which the questions were put forth by us, were completely ignored and the same were misquoted which raised unnecessary hue and cry.</b></p><p id=\"p_67\" style=\"font-family: \" times=\"\" new=\"\" roman\",=\"\" times,=\"\" serif;=\"\" font-size:=\"\" 16.9px;=\"\" text-align:=\"\" justify;\"=\"\"></p><p id=\"p_68\" style=\"font-family: \" times=\"\" new=\"\" roman\",=\"\" times,=\"\" serif;=\"\" font-size:=\"\" 16.9px;=\"\" text-align:=\"\" justify;\"=\"\"><b>33. We hope and trust in future, they would be little more careful, responsible and cautious in this regard.</b></p>', '583cbe0169503a6a1a25498ba9feff36.jpeg', '9d78f4b78c4512ceb216c823b00fe115.PDF', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-25', 1, '', '', '2022-06-25 00:45:32', '2022-06-25 23:09:42'),
(1867, 'Iwi6yVNkQqyzH237uCUnYT9O8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Breakdown of law-and-order situation for short duration cannot partake the colour of breakdown of rule of law or constitutional crisis or failure of constitutional machinery in the context of Article 356 of the Constitution.  Supreme Court (Godhra case)', '<p><b>Zakia Ahsan Jafri vs State of Gujarat and another <br>Criminal Appeal 912 of 2022 decided on 24 June 2022 <br>Justice <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">A.M. Khanwilkar, Justice Dinesh Maheshwari and Justice C.T. Ravikumar. </span><br></b></p><p><b>45. The protagonists of quest for justice sitting in a comfortable\r\nenvironment in their air-conditioned office may succeed in\r\nconnecting failures of the State administration at different levels\r\nduring such horrendous situation, little knowing or even referring to\r\nthe ground realities and the continual effort put in by the duty\r\nholders in controlling the spontaneous evolving situation unfolding\r\naftermath mass violence across the State. The linking of such failures is not enough to entertain a suspicion about hatching of\r\ncriminal conspiracy at the highest level, which requires a concerted\r\neffort of all the persons concerned and more importantly, clear\r\nevidence about meeting of the minds to accomplish such design,\r\nmuch less of causing and precipitating mass violence across the\r\nState. It is apposite to recall the observations in Reg vs. Hodge (<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(1838) 2 Lew 227, referred to in Hanumant, son of Govind Nargundkar vs. State of Madhya Pradesh –\r\n 1952 SCR 1091)</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> ,\r\nadverting to the address by Baron Alderson about the dexterity and\r\nability of ingenious mind to create theories, where he had said: -  </span></b></p><p><b><i>“The mind was apt to take a pleasure in adapting\r\ncircumstances to one another, and even in straining them a\r\nlittle, if need be, to force them to form parts of one connected\r\nwhole; and the more ingenious the mind of the individual, the\r\nmore likely was it, considering such matters, to overreach and\r\nmislead itself, to supply some little link that is wanting, to\r\ntake for granted some fact consistent with its previous\r\ntheories and necessary to render them complete.”\r\n</i></b></p><p><b>Be that as it may, overrunning of State administration is not an\r\nunknown phenomenon. It has been witnessed all over the globe\r\nduring the second wave of pandemic, where the countries with even\r\nbest of medical facilities crumbled and their management skills were\r\noverrun under the pressure. Can it be said to be a case of hatching\r\nof criminal conspiracy? We need not multiply such instances of\r\noverrun. Breakdown of law-and-order situation if for short duration, cannot partake the colour of breakdown of rule of law or\r\nconstitutional crisis. To put it differently, misgovernance or failure\r\nto maintain law-and-order during a brief period may not be a case\r\nof failure of constitutional machinery in the context of tenets\r\nembodied in Article 356 of the Constitution. There must be credible\r\nevidence regarding State sponsored breakdown of law-and-order\r\nsituation; not spontaneous or isolated instances or events of failure\r\nof State administration to control the situation. Suffice it to observe\r\nthat the breakdown of law-and-order situation in the State including\r\nattributable to the alleged inaction of the (State) duty holders, owing\r\nto spontaneous mass violence cannot be a safe measure to infer as\r\nbeing a part of the criminal conspiracy at the highest level of political\r\ndispensation unless there is clear evidence to so conclude regarding\r\nmeeting of the minds of all concerned and their concerted efforts to\r\ncommit or promote commission of such crime. The allegation in the\r\npresent case, if at all relevant, was founded on falsehood of the claim\r\nof Mr. Sanjeev Bhatt and Mr. Haren Pandya regarding the utterances\r\nof the then Chief Minister in review meeting chaired by him – which\r\nstood completely exposed after the investigation by the SIT.</b></p><p><b>47. Suffice it to observe that there is no tittle of material, much less\r\ntangible material to support the plea of the appellant that the\r\nGodhra incident unfolded on 27.2.2002 and the events which\r\nfollowed, was a pre-planned event owing to the criminal conspiracy\r\nhatched at the highest level in the State. It is well settled that conspiracy requires an act (actus reus) and an accompanying mental\r\nstate (mens rea). The agreement constitutes the act and the\r\nintention to achieve the unlawful objective of that agreement\r\nconstitutes the required mental state. The offence of conspiracy is\r\nindependent of other offences. It takes place when there is an\r\nagreement to do or cause to be done an illegal act, or an act which\r\nmay not be illegal but by illegal means. The rationale of conspiracy\r\nis that the required objective manifestations of dispositions of\r\ncriminality is provided by the act of agreement. To convict a person\r\nof conspiracy, the prosecution must show that he agreed with others\r\nthat together they will accomplish the unlawful object of the\r\nconspiracy131\r\n. As noted earlier, inaction in the response or even in\r\na given case of non-responsive administration, can be no basis to\r\ninfer hatching of criminal conspiracy by the authorities of the State\r\nGovernment in absence of any clear evidence about the meeting of\r\nminds; and that, failure to respond to the messages sent by SIB was\r\na concerted and deliberate act of omission or commission on the part\r\nof the State and other functionaries, as alleged. The SIT had\r\nrecorded the statements of all concerned including the officials before forming the opinion, as noted in the final report, to discard\r\nthe allegation under consideration. The Magistrate, as well as, the\r\nHigh Court committed no error whatsoever in accepting the final\r\nreport presented by the SIT. <br></b><br></p>', '89dd752e0202a72ee23932f7901074ee.JPG', '562fc217bf1c60b555c54b8c3ea9ce62.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-24', 1, '', '', '2022-06-25 01:28:48', '2022-06-25 01:31:10'),
(1868, '3eV66jwqGCGJabCveJxkaNHMs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Railway accident. Children are entitled to compensation awarded to deceased mother even after receiving compensation for themselves. Bombay High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kiran Damodar Paygode and others Vs The Union of India.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>First Appeal 671 of 2015 decided on 10 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sandeep K. Shinde.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This Appeal under Section 23 of the\r\nRailway Claims Tribunal Act, 1987 (R.C.T. Act”\r\nfor short) questions the legality and\r\ncorrectness of order dated 18th July, 2014 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">passed by the Railway Claims Tribunal at\r\nMumbai.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2. Brief reference to facts may be\r\nnecessary to assess the precise case of the\r\nappellant.\r\n. Damodar Ganpat Paygode died due to\r\naccidental falling from the train carrying\r\npassengers. His mother- Lakshmibai, wifeIndubai and two sons-Kiran Paygode and Santosh\r\nPaygode (appellants herein), all “dependents”\r\nwithin the meaning of Section 123(b) of the\r\nRailways Act, 1989 were granted compensation\r\nin the sum of Rs.4,00,000/-under Section 124A\r\nof the Railways Act, 1989 by the Railway Claims\r\nTribunal, at Mumbai, vide order dated 16th\r\nMarch, 2009. It appears, compensation in the\r\nsum of Rs.1,54,994/- was awarded to, Indubai\r\nDamodar Paygode and Rs.1,00,000/- to Lakshmi\r\nGanpat Paygode. However, before receiving the\r\ncompensation, Lakshmibai and Indubai, both\r\npassed away on 2nd July, 2009 and 10th July, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2009. Record reveals, compensation amount,\r\nsent to Indubai and Lakshmibai by post was\r\nreturned “unclaimed”, reporting recipients were\r\ndead. It is appellant’s case that, due to\r\ninadvertence, they did not lay their claim over\r\nthe unclaimed compensation. In the\r\ncircumstances, the appellants moved Misc.\r\nApplication No. 9/2014 purportedly filed under\r\nOrder 21 Rule 16 of the Code of Civil Procedure\r\nread with Rule 26(1) of the Railway Claims\r\nTribunal (Procedure) Rules, 1989 (“R.C.T.\r\nRules” for short). Purport of the application\r\nwas that, after the death of Lakshmibai and\r\nIndubai, unclaimed compensation of\r\nRs.1,54,994/- and Rs.1,00,000/- stood\r\ntransferred, to them, by ‘operation of law’,\r\nbeing legal heirs and representatives of\r\nIndubai and Lakshmibai. On this premise,\r\nappellants requested the Tribunal to direct\r\nRailway Administration, to pay Rs.2,54,994/- to\r\nthem. The learned Member of the Tribunal, vide\r\norder dated 18th July, 2014 rejected the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">application on two grounds; namely,</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(I) that\r\napplication purportedly filed under Rule 26(1)\r\nof the R.C.T. Rules was beyond the period of 90\r\ndays and</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(ii) since appellants have received\r\ntheir share in compensation, they were no more\r\n“dependents”. Feeling aggrieved by that order,\r\nthis Appeal is preferred.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Herein, Tribunal had granted compensation\r\nto the appellants and Lakshmibai (grandmother\r\nof appellants) and Indubai (mother of the\r\nappellants). Unfortunately, Lakshmibai and\r\nIndubai died before receiving their share in\r\nthe compensation. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>That, since the application moved by the\r\nappellants was beyond the period of 90 days,\r\nand although the Tribunal is/was empowered to\r\ncondone the delay, upon showing sufficient\r\ncause, delay was not condoned. Moreso,\r\nTribunal did not assign reasons, while refusing\r\nto condone the delay. As a result, Misc.\r\nApplication No.9/2014 was rejected. Any way,\r\nMisc. Application was moved, for seeking two\r\nreliefs;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(a)to condone the delay and after\r\ncondoning it; </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(b)to direct the Railway Administration to\r\npay Rs.3,54,994/-, the amount due and\r\npayable to Lakshmibai and Indubai to the\r\nappellants, being their heirs and legal\r\nrepresentatives.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. Insofar as, first two questions are\r\nconcerned, it is not in dispute that,\r\nappellants are/were “dependents” within the\r\nmeaning of Section 123b of the Railways Act.\r\nIt would be appropriate to notice that,\r\nlanguage of Section 124 and 124A imposes\r\nliability on Railways to pay compensation.\r\nSection 125(D) of the Railways Act, deals\r\nwith claims arising in respect of death,\r\nwhich resulted from the accident or untoward\r\nincidents. In such a case, dependents of\r\ndeceased alone are entitled to make an\r\napplication for claim. Thus, in the event\r\nof death of passenger, only dependents and\r\nnot mere legal heirs/legal representatives <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">can claim compensation. In context of\r\nfacts, somewhat similar question arose for\r\nconsideration in the case of Krishnakumar G.\r\nV/s. Union of India before the Kerala High\r\nCourt. In that case, although the petitioner\r\nwas not the “dependent”, but sole legal heir\r\nof deceased injured passenger, had sought\r\nrecovery of amount that had fallen due under\r\nSection 124 of the Railways Act and which\r\nremained unpaid. The Bench, after analysing\r\nthe scheme of Chapter-XIII of the Railways\r\nAct, held that, “when the dependent of the\r\ndeceased, is given right to claim\r\ncompensation by filing an application, the\r\nexpression “dependent” in the context, must\r\ncertainly be held to refer to those who\r\nrepresent the estate of the deceased\r\ndependent, where death has occurred\r\nsubsequent to vesting of right. To construe\r\notherwise, would render the provision,\r\nunjust”.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Insofar as, powers of the Railway Claims\r\nTribunal to execute the decree (third question)\r\nis concerned, the scheme of the R.C.T. Rules,\r\nprovides that, once order granting compensation <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is passed and signed by the Tribunal, it is\r\nexecutable by the Tribunal in terms of sub-Rule\r\n(2) of Rule 31 of the R.C.T. Rules, as a Decree\r\nof Civil court and thereupon the provisions of\r\nCivil Procedure Code, shall apply as they apply\r\nin respect of a decree of Civil Court. Rule\r\n31A of the R.C.T. Rules, provides that an order\r\nof the Tribunal may be executed by the Bench\r\nwhich passed it, if the respondent is within\r\nthe territorial jurisdiction of the said Bench,\r\nor by any other Bench or to Court to which it\r\nis sent, for execution, when the respondent is\r\nhaving its office within the territorial\r\njurisdiction of such Bench or Court as the case\r\nmay be. Rule 31B, prescribes an application to\r\nbe made to the Tribunal, for execution, in\r\nForm-IX; whereas, Section 22 of Railway Claims\r\nTribunal Act, empowers Claims Tribunal to\r\nexecute its orders as a Decree of Civil Court\r\nand for this purpose the Claims Tribunal is\r\ninvested with all powers of Civil Courts. In\r\nthis case, appellants are claiming that by </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">operation of law (Personal Succession Law),\r\nthey are the \'transferees\', of compensation\r\npayable to deceased, Lakshmibai and Indubai,\r\nawarded by the R.C.T., vide order dated 16th\r\nMarch, 2000. Whereas, under Rule 26 of the\r\nRCT Rules, legal representatives may seek their\r\nimpleadment in pending proceedings in case of\r\ndeath of a party during the pendency of\r\nproceedings before the Tribunal. The\r\nexpression “pendency of proceedings” would\r\nobviously include “execution proceedings”.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Thus, upon collective reading of\r\nSection 123(b) of Railways Act with Rule 26 of\r\nRCT rules with provisions of Order 21 Rule 16\r\nof CPC, in my considered opinion, the Tribunal\r\nis invested with powers to execute its order as\r\na Decree in accordance with the provisions of\r\nthe Civil Procedure Code. In that view of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">matter, Misc. Application No.9/2014 moved\r\nunder Rule 26(1) of the R.C.T. Rules, is to be\r\nconstrued as an application in execution\r\nproceedings made under Rule 31(2) read with\r\nSection 22 of the R.C.T. Act.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. In this case, Misc. Application\r\nNo.9/2014 moved by the appellants was rejected,\r\nhaving found, application did not disclose\r\n“sufficient cause”, to condone the delay. Law\r\nis, if sufficient cause is not proved, nothing\r\nfurther has to be done but, the application\r\nfor condoning the delay has to be dismissed on\r\nthat ground alone. Yet, learned Tribunal held\r\nand recorded finding that appellants were not\r\nentitled to recover the amount due to Indubai\r\nand Lakshmibai, reason being, upon receiving\r\ntheir share in the compensation, they ceased to\r\nbe the “dependents”, without first examining\r\nthe Scheme of the Act and its powers. Thereby\r\nTribunal, fell in error in exercise of its\r\njurisdiction.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. In any case, having regard to the facts\r\nof the case, I am inclined to condone the\r\ndelay. Accordingly, the delay is condoned.\r\nHowever, before concluding the Appeal, it may\r\nbe stated that, Miscellaneous Application moved\r\nby the appellants, was in capacity as\r\n“dependents” of deceased passenger and legal\r\nrepresentatives of Lakshmibai and Indubai.\r\nNextly, every application moved by the\r\ndependents for compensation under Section 124\r\nis for the benefit of every other dependent in\r\nterms of Section 125(2) of the Railways Act.\r\nFor the aforesaid reasons, the impugned order\r\ndated 18th July, 2014 declining to condone the\r\ndelay and consequently rejecting the\r\nMiscellaneous Application, is quashed and set\r\naside and Misc. Application No. 09/2014 is\r\nrestored to file. As a consequence, Appeal is\r\npartly allowed. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Misc. Application No. 09/2014 in\r\nO.A. No.1222/2006 is restored to the\r\nfile of Railway Claims Tribunal at\r\nMumbai.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii)Learned Member, Railway Claims\r\nTribunal shall list Misc.\r\nApplication No. 09/2014 for\r\nconsideration on 11th July, 2022 and\r\ndecide the same in accordance with\r\nlaw, being mindful of its powers to\r\nexecute its order as a decree of\r\nCivil Court and fact that every\r\napplication by a defendant for\r\ncompensation under Section 124 or\r\n124A of the Railways Act, 1989 is for\r\nthe benefit of every other defendant.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. Appeal is allowed and disposed of in\r\nthe aforesaid terms. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '72761f48777939073a501cd2262fd677.jpeg', 'bd6b9e10b2f767594f2a9cc5a4489699.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-27', 1, '', '', '2022-06-25 16:38:59', '2022-06-27 06:15:06');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1865, 'e0ReNU9IWLOR8nQWgaBkcyBSD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Injunction against passing off. Challenge to the plaintiff’s design registration by a third party does not cast any cloud on the validity of design of the plaintiff until the final determination. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Havells India Limited Vs Panasonic Life Solutions India Pvt Ltd and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CS (COMM) 261 of 2022 decided on 31 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Jyoti Singh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Present application has been filed on behalf of the Plaintiff seeking\r\ninterim injunction inter alia restraining the Defendants and their agents etc.,\r\nfrom manufacturing, marketing, selling (including on online platforms),\r\nusing designs bearing Nos. 280666 and 328605, the VENICE PRIME series\r\nof ceiling fans or any other fan(s) series, which are identical or deceptively\r\nsimilar to Plaintiff’s ENTICER series including ENTICER ART variants or <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which are a colourable imitation or substantial reproduction of Plaintiff’s\r\nENTICER/ENTICER ART series in their get-up, layout, trade-dress, colour\r\nscheme, pattern etc.,in any manner, amounting to infringement, passing off,\r\nunfair competition etc.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>2. It is averred in the plaint that Plaintiff was incorporated in the year\r\n1983 and by itself and/or by its permitted user, engaged in the Electrical and\r\nPower Distribution Equipment business. Plaintiff is a Billion Dollar leading\r\nFast Moving Electrical Goods Company having extensive production and\r\ndistribution networks across India and internationally, providing a wide\r\nrange of world-class industrial and consumer electrical products. Plaintiff\r\nenjoys an enviable market dominance across a wide spectrum of products,\r\nincluding cables and wires, motors, fans, home appliances, electric water\r\nheaters, power capacitors etc. It has expanded into personal grooming\r\nproducts, water purifiers, solar lighting solutions and its products can be\r\naccessed through their website https://www.havells.com/.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3. Plaintiff is stated to be a market leader in manufacture and trading of\r\nvarious types of fans in India and has won industry accolades on the launch\r\nof India’s first energy efficient fan ES-50, indigenously designed by its\r\nR&D Department. Plaintiff’s twin plant for manufacturing fans located at\r\nHaridwar, is one of the finest automated plants in the country.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. Plaintiff’s products are sold under some of the most prestigious global\r\nbrands like Havells, Crabtree, Standard, Promptec and trademark Lloyd.\r\nOwing to the quality of products and quick and efficient service Plaintiff has\r\nminimum customer complaints and highest rate of customer satisfaction and\r\nhas thus earned the distinction of being the preferred choice in electrical\r\nproducts for discerning individuals and industrial consumers, both in India </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and abroad. Plaintiff’s products are sold in India and also exported to several\r\nforeign countries. The widespread sales and advertisements through various\r\npublicity mediums have resulted in Plaintiff’srange of electrical and home\r\nappliances becoming highly popular, well-known and Plaintiff has become a\r\nhousehold name in the country.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>5. It is averred that substantial expenditure has been incurred on\r\npublicity and promotion of the products across various mediums inter alia\r\nthrough print, audio-visual media including television programmes,\r\narticles and write-upsin leading newspapers, magazines, web/internet etc.,\r\nall of which enjoy wide viewership, circulation and readership throughout\r\nthe world. Large number of celebrities endorse Plaintiff’s brands and\r\nproducts.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. It is stated that the ENTICER ceiling fan was indigenously\r\nconceptualised by the Plaintiff at its state-of-the-art Customer Experience\r\nand Design Centre in early 2014-15 by its employees during the course of\r\ntheir employment. Keeping in view the novel features of the ENTICER\r\nceiling fan, a design application was filed by the Plaintiff on 19.02.2016,\r\nbearing design No. ‘280666’ and was registered. Registration is valid and\r\nsubsisting. In March, 2016 Plaintiff launched its ENTICER fan and on\r\naccount of its superior quality and premium aesthetic features, the fan\r\ngained huge popularity amongst the members of the trade and public, who\r\nrecognize the fan to be originating from the Plaintiff and no one else.\r\nGarnering on the immense popularity of its ENTICER series, Plaintiff raised\r\nthe bar by introducing novel and unique ceiling fans by placing artistic work\r\non the trims of the ENTICER ceiling fan, using In-Mould Design\r\nTechnology and the series was titled ‘ENTICERART’. First fan under the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">series named Enticer Art Limited Edition, was launched in early 2017 and\r\nreceived immense positive response.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. It is averred that Plaintiff advertises its designer fans under a famous\r\nadvertisement campaign called ‘Ceiling Art’. The said campaign of the\r\nPlaintiff concentrates on the concept of ‘Fifth Wall’ in a room. The same has\r\nbeen aired extensively on the TV Channels and cinema halls and has over 11\r\nmillion views.In the plaint, Plaintiff has extensively detailed the unique\r\nfeatures of its ENTICER series of fans being minimalistic and elegant in\r\nkeeping with the trend.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>8. It is pleaded that ENTICER ART is a ‘high-end art patterns’ fan to\r\ncompliment house interiors and is inspired by nature. In the year 2020,\r\nPlaintiff launched a series‘NATURE SERIES (NS)’ under the category of\r\nENTICER ART Series, inspired from nature and the patterns include\r\nflowers, marble etc. and the fans under both the series are available in\r\nvarious colour combinations. It is averred that the unique features of the fans\r\nunder the two series viz. novel overall shape, configuration and look,\r\ndesigns etc., enabled the Plaintiff to obtain various registrations for its\r\ndesigns under The Designs Act, 2000 (herein after referred to as the ‘Act’),\r\nincluding registration bearing No. ‘280666’ issued on 08.02.2017, with\r\neffect from 19.02.2016 and registration bearing No. ‘328605’ issued on\r\n06.10.2020, with effect from 25.03.2020(hereinafter referred to as ‘Design\r\n2016’ and ‘Design 2020’, respectively).\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. The cause of action, as averred in the plaint, arose in March, 2022\r\nwhen the Plaintiff learnt that Defendant No.1 was launching its new series\r\nnamely, VENICE PRIME and the fans thereunder were a blatant imitation\r\nof Plaintiff’s ENTICER/ENTICER ART series of fans, followed by the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">issue of catalogue by Defendant No.2 in April, 2022, indicating that\r\nDefendant No.1 was ready to launch its new series fans.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>74. Pithily put, with respect to Design 2020, Plaintiff urges that\r\nDefendant No.1 is misrepresenting and passing off its goods as that of the\r\nPlaintiff, by substantially copying Plaintiff’s layout, get-up, trade-dress,\r\ncolour scheme, motif patterns, shape, design, configuration etc. Therefore,\r\nthe claim for passing off is not restricted to registered design but is in the\r\nlarger trade dress, shape, layout etc. and it only remains to be examined if\r\nthe Plaintiff has been able to make out a prima facie case of passing off\r\nagainst Defendant No.1. Before alluding to the factual matrix of the said\r\nclaim, it would be incumbent to deal with two-fold objections raised by\r\nDefendant No.1 in this regard. It was contended that Design 2020 is not\r\nnew or original and lacks novelty and secondly, it is dissimilar to Defendant\r\nNo.1’s VENICE PRIME products.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>75. The first contention is largely predicated on the plea that no monopoly\r\ncan be claimed over a concept, i.e. stone/marble print, which is common\r\nplace or exists in nature. This contention is devoid of merit for two-fold\r\nreasons. First and foremost, Defendant No.1 has itself applied for design\r\nregistration for the VENICE PRIME series in August, 2021 bearing No.\r\n348235-001, which is pending and this has been so stated by Defendant\r\nNo.1 in its reply to the present application. The plea of lack of novelty\r\ncannot be sustained on this short ground. If the understanding of Defendant\r\nNo.1 is that a design which is not new or novel cannot be registered under\r\nSection 4 (a) and (b) of the Act and rightly so, then the application for\r\nregistration by Defendant No.1 is itself evidence of the fact that the design\r\nof the Plaintiff using marble, is novel.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">76. Defendant No.1 cannot approbate and reprobate in the same breath.\r\nEstoppel prevents Defendant No.1 from taking such contradictory stands, as </span><span style=\"font-size: 12pt;\">held in Pentel(supra) and the principle is clearly based on the maxim quod\r\napprobo non reprobo that no party to a litigation can be allowed to approve\r\nand reject or blow hot and cold at the same time. The plea of lack of novelty\r\nthus has no legs to stand on. The second objection on lack of novelty that the\r\nelements of the Design 2020 are ‘common place’ cannot be sustained. In\r\nthis context, I may allude to a judgment of aCo-ordinate Bench of this Court\r\nin Eicher Goodearth Pvt. Ltd v. Krishna Mehta & Ors. 2015 SCC OnLine\r\nDel 10139, where a similar plea raised by the Defendant therein was\r\nrepelled by the Court.  </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>78. Examined on the anvil of the principles enunciated above and\r\nfollowed by the Courts in comparing the impugned products, in my prima\r\nfacie view, Plaintiff has made out a case of passing off with respect to\r\nDesign 2020. In answering the question whether the Plaintiff has made out a\r\ncase for passing off, the only inquiry which needs to be addressed is whether\r\nthe purchaser is likely to be misled into believing that he was purchasing\r\nPlaintiff’s product. It is the case of the Plaintiff that with the collective effort\r\nof their creative team, a unique and aesthetic design has been created and\r\napplied to the ENTICER ART-NS Stone fans. The ENTICER ART fans\r\nwere conceived as an opportunity to provide Indian customers detailed and\r\nhigh-end patterns on the ceiling fans, to complement most Indian home\r\ninteriors and provide the richness and eliteness. The idea behind the\r\ncreativity was to enhance the 5th wall, i.e. ceiling bearing the fans.\r\nInspiration behind the unique series was from nature and, therefore, patterns\r\nsuch as flowers, foliage, marble etc. were used.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">80. It is prima facie evident from a mere visual comparison that every\r\nattempt has been made by Defendant No.1 to come as close as possible to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Plaintiff’s fans. The impugned product has a same shape and configuration,\r\nornamentation on the blade, body ring on bottom cover, layout and\r\nplacement of the ornamentation. It is relevant to note that not only has the\r\nidea of using marble on the blades of the fan has been copied, but even the\r\nshape in which it is cut, the size and the metallic border as well as its\r\nplacement and layout have been substantially copied by Defendant No.1. At\r\nthis stage, I am not delving into a comparison of the shape and configuration\r\nbetween the two fans as the same has been dealt with in detail in the earlier\r\npart of the judgment, for the reason that the shape and configuration of\r\nENTICER ART-NS Stone is similar to the ENTICER fans of the Plaintiff.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>81. Learned Senior counsel for Defendant No.1 had sought to bring out\r\ncertain dissimilarities by comparing the intersecting golden lines on the\r\nmarble pattern of the Plaintiff’s fans with the motifs and colours on the\r\nimpugned products. In my view, the  differences/dissimilarities that were\r\nattempted to be highlighted, are not sufficient to hold in favour of Defendant\r\nNo.1 that there has been no attempt to copy and misrepresent. It has been\r\nheld in several judgments that if the Courts were to examine the\r\ndissimilarities with great minuteness, noPlaintiff would ever succeed in a\r\nclaim for infringement or passing off as a clever Defendant, with some skill\r\nwould always be in a position to make some cosmetic or minor changes and\r\nget away with deceit and/or infringement.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">82. Defendant No.1 has been in business of fans since the year 2007 and\r\nif the marble/stone was such a common place, it is not understood why the\r\nsame was not used on the fans for all these years. It is only after the Plaintiff\r\ndesigned its fans using the marble and earned goodwill and reputation that\r\nDefendant No.1 came out with the impugned products, which is not a mere</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">co-incidence. The claim to user in 2020, before the Plaintiff, albeit averred,\r\nwas not argued and pressed nor is there any material to establish the same,\r\neven prima facie. Additionally, if the intention of Defendant No.1 was not to\r\nmisrepresent, the marble pattern could have been used in several other ways\r\non the ceiling fans in terms of size, shape, placement, layout etc. The\r\nsimilarity in the impugned products, in my prima facie view, shows\r\ndishonest adoption of Plaintiff’s Design 2020 by Defendant No.1. The\r\nmisrepresentation is with a view to deceive the public and encash on the\r\ngoodwill and reputation, which inheres in the Plaintiff and which the\r\nPlaintiff has prima facie established.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>83. The argument that the packaging of the fans is different and contains\r\nthe name of Defendant No.1 as ‘Anchorby Panasonic’cannot, in my view,\r\nhelp Defendant No.1 as it is common knowledge that ceiling fans are\r\ndisplayed as installed on the ceilings of the shops or showrooms and/or\r\nsometimes kept on the tables, but without boxes. It is only after the customer\r\nhas chosen a particular fan, a fresh piece packed in a box is given to the\r\ncustomer on payment, as rightly urged by the Plaintiff.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>84. Coming to the next claim of the Plaintiff with respect to infringement\r\nof Design 2020, in my prima facie view Plaintiff has satisfied that\r\ninfringement is made out. Section 22 (1) of the Act deals with infringement\r\nof a registered design and the tests to determine infringement have been\r\nculled out in several judgments.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>85. Applying the aforesaid principles and comparing the design on the\r\nimpugned products with the Plaintiff’s Design 2020, it is established\r\nthat Defendant No.1 has slavishly copied and imitated the Plaintiff’s\r\ndesign, thereby satisfying the tests laid down in the judgments\r\naforementioned and the provisions of Section 22 (1) of the Act. The\r\nessential features of Design 2020 have been substantially copied and as\r\nheld in Whirlpool (supra), once the Court concludes that there has been\r\ncopying, cosmetic differences and an involved inquiry is uncalled for\r\nand not required. Concept of substantiality is not required to be gone\r\ninto once the Court concludes that one had copied from the other. This\r\nCourt is satisfied that the impugned design has been created with a\r\nclear intent to copy the Design 2020 and as aforementioned Defendant\r\nNo.1 had several other options and alternatives to adopt another design\r\nwithout applying a design which is substantially similar to that of\r\nDesign 2020.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>86. Learned Senior Counsel for Defendant No.1 had strenuously argued\r\nthat Plaintiff is guilty of suppression of material facts and had relied on\r\nseveral judgments in this context. It was urged that on this ground alone\r\nPlaintiff is not entitled to the equitable relief of interim injunction. The\r\nallegations are primarily on the ground that a third party namely, ‘Orient\r\nElectric’ has challenged the Design 2016 of the Plaintiff and this has not\r\nbeen disclosed in the plaint. Plaintiff has responded to the said allegation by\r\npointing out that a challenge to the design registration by a third party does\r\nnot cast any cloud on the validity of design of the Plaintiff until the final <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">from the Controller of Designs regarding the challenge and thus there is no\r\nsuppression.In my view, the position adopted by the Plaintiff cannot be\r\nfaulted with and there is no suppression. Therefore, the judgments relied\r\nupon by Defendant No.1 have no relevance.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>87. For all the aforesaid reasons, I am of the view that Plaintiff has\r\nmade out a prima facie case for grant of interim injunction. Balance of\r\nconvenience also lies in favour of the Plaintiff applying the principles\r\nlaid down in the case of Wander (supra) since even if the stand of\r\nDefendant No.1 is to be accepted that it has launched the products,\r\nadmittedly it is only in February, 2022. In case, the interim injunction\r\nis not granted irreparable loss shall be caused to the Plaintiff as Defendant\r\nNo.1 is infringing the design of the Plaintiff and passing off its goods as that\r\nof the Plaintiff, thereby deceiving the public.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>88. Accordingly, Defendant No.1, its C&F agents, dealers, retailers,\r\nrepresentatives, assignees or anyone acting on its behalf are restrained from\r\nmanufacturing, marketing, selling (including on the online platforms) the\r\nfans under the VENICE PRIME series or those which are identical or\r\ndeceptively similar to them, using the designs of the Plaintiff and those\r\nwhich are colourable imitation or substantial reproduction of Plaintiff’s\r\nget-up, layout, trade dress, colour scheme, pattern, shape, configuration etc.\r\nin the ENTICER ART-NS Stone series as aforementioned, during the\r\npendency of the suit.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">89. It is made clear that the aforesaid observations and findings are only\r\nprima facie and shall have no bearing on the final adjudication of\r\nthe suit.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>90. Application is disposed of in the aforesaid terms</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '93e3247a788f7aa4c6c4f161b5289515.jpeg', 'c5f05ec3b14625e79b95a161c7fafcaa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-25', 1, '', '', '2022-06-24 20:02:38', '2022-06-25 10:27:41'),
(1870, 'eWqznVn3UfXEai9UqAbWemPFp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Interim compensation in cheque bounce cases. Magistrate can award compensation ranging from 1% to 20% in a cautious manner and after recording the reasons. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">V. Krishnamurthy Vs Diary Classic Ice Creams Pvt Ltd.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Criminal Petition 632 of 2022 decided on 1 June 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice M. Nagaprasanna.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">The petitioner is before this Court calling in question order dated 12-10-2021 passed by the XXVIII Additional Chief Metropolitan Magistrate, Bangalore in C.C.No.15681 of 2020, in a proceeding instituted by the respondent/complainant for offences punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘the Act’ for short). The order challenged is an order granting 10% interim compensation in terms of Section 143A of the Act.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows: The petitioner is a retailer and the respondent/complainant is a producer of Ice Cream. The petitioner and the respondent entered into an agreement in the year 2017 for distribution of Ice Cream and frozen dessert products manufactured by the respondent/complainant, in and around city of Coimbatore. Pursuant to the agreement, it is the case of the petitioner that the complainant had demanded the petitioner for issuance of blank cheques as security in lieu of proposed supply to be made to the petitioner for the purpose of such distribution. Accordingly, the petitioner claims that he had handed over several blank cheques, one of which, was cheque bearing No.011226, as security to the respondent and not towards any liability which the petitioner owed to the complainant. The respondent/complainant had been supplying Ice Creams and frozen products more than the quantity of the order placed by the petitioner which was brought to the notice of the complainant and in the light of reduced demand it was indicated that the supply of the products be reduced and further the petitioner refused to accept the stock as it was a perishable commodity with a short shelf life. Despite refusal of the order, the complainant went on supplying the stock.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">4. It appears that the petitioner represented to the complainant that payment would be made only after sales take place as potential for selling Ice Cream had come down and with the onset of COVID-19 entire business of the petitioner was in doldrums.  It is the further case of the petitioner that despite the talks between the petitioner and the respondent, the complainant misused blank cheque bearing No.011226 issued by the petitioner as security, by depositing the same with the banker. The cheque that was deposited was for an amount of Rs.5,56,71,208/- which came to be dishonoured on the ground of want of sufficient funds in the account of the petitioner. Pursuant to the dishonor of the cheque, the complainant takes up legal proceedings against the petitioner by registration of complaint invoking Section 200 of the Cr.P.C. for offences punishable under Section 138 of the Act.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">5. The issue before this Court is not whether the cheque was issued for the purpose of security or otherwise. It is a matter of evidence that is pending adjudication before the competent criminal Court. In the said proceedings, the complainant files an application under Section 143A of the Act seeking interim compensation as permissible under the statute to the tune of 20% of the cheque amount. The learned Magistrate considering the application filed by the complainant and objections filed thereto allows the application by granting interim compensation of 10% of the cheque amount to be paid within 60 days of the order. It is this order that drives the petitioner to this Court in the subject petition.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">6. The learned counsel appearing for the petitioner would vehemently argue and contend that the cheque that was issued in the name of the complainant was a blank cheque that was given as security, in furtherance of the agreement between the parties for distribution and sale of Ice Cream produced by the respondent/complainant, which has been misused by the complainant by entering an amount of Rs.5,56,71,208/- thereto. The order directing payment of 10% of the cheque amount as interim compensation by the learned Magistrate suffers from want of application of mind, as it does not consider the circumstances under which such a claim becomes due.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">7. On the other hand, the learned counsel appearing for the respondent would vehemently refute the submission to contend  that  the  outstanding  debt  of  Rs.5,56,71,208/-  is admitted by the petitioner and in the teeth of such admission it cannot be said that the respondent was not entitled to such compensation as available under the statute. He would submit that the order impugned does not suffer from want of application of mind, as it is rendered exercising such discretion by granting only 10% as interim compensation.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">9. In the light of the order impugned being an order of grant of interim compensation of 10% of the total cheque amount under Section 143A of the Act, I deem it appropriate to notice Section 143A of the Act and its purport.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">10. Section 143A of the Act was introduced for a specific purpose. The purport for introduction of the amendment was that the Government had been receiving several representations from the public including trading community relating to pendency of cheque dishonor cases. This was because of delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings. The injustice caused to the payee of a dishonoured cheque had to be considered. Therefore, the purpose for introduction of the amendment was delay in proceedings.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">12. On a conjoint reading of the objects and reasons, amendment made, and the purport of the provisions, what would unmistakably emerge is that the learned Magistrate is empowered to exercise his discretion in the grant of interim compensation which would in any given case range from 1% to 20%. Once the discretion by the learned Magistrate happens, the rigour of the statute sets in as the words in the statute depicts that the Court may in a given case grant such compensation and once granted consequences follow. Therefore, the learned Magistrates are required to exercise discretion by recording reasons in writing which would demonstrate application of mind, as application of mind and reasons in an order are inseparable. Application of mind is discernible only when the order reflects adequate reasons being given for exercise of such discretion.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">13. Application of mind and passing of a reasoned order of grant of compensation becomes necessary in the light of penal consequences that ensue an accused who failed to comply with the order granting 20% compensation as the complainant is given several remedies of recovery which result in the accused being taken into custody. Therefore, such orders which result in such penal consequences should be rendered giving cogent reasons which would demonstrate application of mind and such orders should be passed only after hearing the accused in the matter. In cases where the learned Magistrate is to exercise discretion, such discretion should become two fold.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">First fold: Where an application is so made, the learned Magistrate has to apply his mind whether such an application is to be considered at all, as every application that is made need not result in grant of 20% interim compensation. Several factors need be gone into for considering such applications bearing in mind the reason and backdrop of the amendment. As quoted herein-above the bedrock of the amendment was to stall unscrupulous drawers of cheques drawing proceedings with frivolous applications, absenting themselves, seeking continuous adjournments causing delay and grave prejudice to the case of the complainants. In these factors, the learned Magistrate after analyzing the conduct of the accused should grant compensation which would vary from 1% to 20% after recording reasons. In a given case if the accused is cooperating with the trial without seeking any unnecessary adjournments, not absenting himself or his counsel on any date and cooperating with the conclusion of the trial in such cases, the learned Magistrate will have to apply his mind, exercise his discretion as to whether such applications should be entertained at all. Therefore, it forms two classes of litigants. One who would cooperate with the proceedings and the other who would not. In cases where there is complete co-operation from the hands of the accused in the trial, the Court may consider whether interim compensation has to be granted at all and in cases where there is no cooperation on the part of the accused, the Court may proceed to consider the application.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">Second fold: The second fold of discretion in any given case , the compensation may vary from 1% to 20%. It is nowhere depicted in the statute that the amount of interim compensation should be of a particular figure. It can vary from 1% to 20%. It is this variance that gives the learned Magistrate power to exercise discretion to grant such compensation. The mandate of the statute is that it should not exceed 20%. In the cases where learned Magistrate proceeds to grant compensation, has to bear in mind the amount involved in the instrument,  as certain transactions would run to several cores and the accused may have formidable defence against the complainant. In such cases, the learned Magistrate should exercise discretion in a cautious manner.  Here again the conduct of the accused should be noticed. Therefore, the aforesaid two fold discretion is sine qua non for an order to be passed by the learned Magistrate while considering the application under Section 143A of the Act.<br></font><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">15. There is no reason recorded by the learned Magistrate that the accused in the case at hand has adopted any of the factors as narrated hereinabove that would entail consideration of an application under Section 143A of the Act.  With the reason that is rendered by the learned Magistrate as quoted (supra), the order granting 10% compensation, in the case at hand,  becomes  unsustainable.   This  Court  is  flooded  with litigation with regard to grant of compensation under Section 143A of the Act by criminal courts. In several cases discretion is exercised for grant of compensation and in several other cases there are no reasons for exercise of such discretion. Therefore, it has become necessary to direct learned Magistrates that while considering applications filed under Section 143A of the Act, to notice at the outset, the conduct of the accused. If the accused has been unnecessarily evading the proceedings by seeking adjournments, consideration of the application would become imperative as the amendment itself is introduced to compensate such payees of delay tactics adopted by unscrupulous drawers of cheques.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">16. The order of the learned Magistrate impugned herein does not bear any such reason as is indicated hereinabove. The amount involved in the transaction is Rs.5,56,71,208/- and 10% of the said amount would mean Rs.55 lakhs. Therefore, it was necessary for the learned Magistrates to apply his mind, record such reasons which would demonstrate application of mind and then allow the application for grant of compensation in terms of the Act. In the absence of the aforesaid, I deem it appropriate to exercise my discretion under Section 482 of the Cr.P.C., set aside the order impugned and remit the matter back to the hands of the learned Magistrate to pass appropriate orders on the application, bearing in mind the observations made in the course of the order.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">O R D E R</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(i)<span style=\"white-space: pre;\">	</span>The Criminal Petition is allowed.</span></font></span></p>', '487b06c05511723f3ae4c3205ed8004e.jpg', '3bdc728aa4e45586b47b340eff7a52cf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-27', 1, '', '', '2022-06-27 03:07:25', '2022-06-27 11:31:52');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2722, 'fXlAzntmj1dAs5hmcc9RgdTt2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Labour Law. Dispute regarding termination can be raised before the Labour Court within whose jurisdiction the employee worked last and received the termination letter and not from the place of origin of termination letter. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>A Vishwanath Shetty Vs The Management of Jagsonpal.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 11610 of 2012 decided on 6 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The dispute raised by the petitioner by filing a claim petition in I.D. No.15/1997 before the Labour Court, Mangalore came to be dismissed on a finding on the preliminary issue that it did not have territorial jurisdiction. It is the said order which is under challenge in the present petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space:pre\">	</span>The short question that would arise for consideration in the present matter is, whether the claim petition filed by the workman in the labour Court, D.K., Mangalore (camped at Shimoga) is filed before the labour Court having jurisdiction over the present matter?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>In the present matter, it is not whether the labour Court had the power to decide the issue but whether the decision made by the labour Court is proper or not is in question. The said question can only be answered with reference to the facts of the matter. As could be seen from the letter terminating the services of the workman dated 8.2.1997, the petitioner had been appointed at Shimoga, subsequently opportunity was given for him to take transfer to Udupi, stationed at Shimoga or to go to Madras, later on he was transferred to Bangalore, subsequently to New Delhi.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>If the submission of Sri.Joshua Samuel is accepted that the workman would only have to initiate proceedings to the place where he is transferred, the same in the present matter would give rise to chaos inasmuch as the petitioner could have filed a petition in Udupi, Madras, Bangalore or New Delhi, merely because the employer has transferred him to so many places. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>Such a submission if accepted could also give rise to a situation which could result in exploitation of the workman inasmuch as the employer could at its whims and fancies transfer a workman to any place in the country and contend that it is in the place of transfer that the dispute has to be raised. The dispute is not as much as the transfer to a particular location but transfer from a particular location. That apart, in the present case, the dispute is as regards termination of services of the petitioner which termination, in my considered opinion, occurred in Shimoga since the notice of termination which had been issued from New Delhi would be complete only on receipt thereof by the workman at the address shown in the notice which is Shimoga. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>In view of the above, I am of the considered opinion that rest of the contentions urged need not be addressed by this Court.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>i.<span style=\"white-space:pre\">	</span>The writ petition is allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '60612b2fc5312bc8d72e797f951fc62e.JPG', 'b12dac6b46d824d7f211038a00a7d6cf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-27', 1, '', '', '2023-02-23 13:20:45', '2023-02-27 12:25:33'),
(2716, 'WcZk0PkmNUxIoxaeZ5ZwsShPy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘Mankind owes to the child the best it has to give’. An innocent child cannot be traumatised and subjected to extreme stress and tension in order to discover its paternity through DNA tests. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Aparna Ajinkya Firodia Vs Ajinkya Arun Firodia.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 1308 of 2023 decided on 20 February 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice B.V. Nagarathna and Justice V. Ramasubramanian. </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">1. While I am entirely in agreement with the opinion wellcrafted by my learned sister Hon’ble Mrs. Justice B.V. Nagarathna, I thought that two aspects of the matter require little more emphasis. Hence a separate but concurring opinion.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">21. But we do not know how a mix up of Section 112 and Section 114 is possible. Section 112 deals with something where the existence of a fact is taken to be conclusive proof, without any possibility for the disputing party to lead evidence for disproving <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the same. The only escape route or emergency exit as we may call it, available for a person to deprive another person of the benefit of Section 112, is to show that the parties to the marriage did not have access to each other at the time when the child could have been begotten. Section 114 has nothing to do with, nor is in connection with conclusive proof of legitimacy dealt with by Section 112. Both Section 112 and Section 114 fall under different compartments. The word “presumption” itself is not used in Section 112. The expression used in Section 112 is “conclusive proof”. Therefore, by virtue of Section 4, no evidence shall be allowed to be given for the purpose of disproving it.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">22. As we have indicated elsewhere, if one of the parties to the marriage shows that he had no access to the other at the time when the child could have been begotten, then Section 112 itself does not get attracted. On the contrary, if the parties have had access to each other at the relevant point of time, the fate of the question relating to legitimacy is sealed.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">23. We are not suggesting for a moment that Section 112 acts as a shield even for the alleged adulterous conduct on the part of the wife. All that we say is that anything that would destroy the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">legal effect of Section 112 cannot be used by the respondent, on the ground that the same is being done to achieve another result.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">25. The pleading of the respondent extracted above to the effect that after September 2016, he has had no physical relationship with the appellant-wife means that he has at least had access to the wife both at the time when the child was begotten and for a full period of three years even thereafter. Therefore, the conclusive proof under Section 112 has actually come into play in this case.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">26. There is another fallacy in the argument of the respondent. It is the contention of the respondent that he is seeking an <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">adverse inference to be drawn only as against the wife under Section 114(h), upon the refusal of the wife to subject the child to DNA test. But the stage at which the wife may refuse to subject the child to DNA, would arise only after the Court comes to the conclusion that a DNA test should be ordered. To put in simple terms, there are three stages in the process, namely, (i) consideration by the Court, of the question whether to order DNA test or not; (ii) passing an order directing DNA test, after such consideration; and (iii) the decision of the wife to comply or not, with the order so passed. The respondent should first cross the outer fence namely whether a DNA test can be ordered or not. It is only after he convinces the Court to order DNA test and successfully secures an order that he can move to the inner fence, regarding the willingness of the wife to abide by the order. It is only at that stage that the respondent can, if at all, seek refuge under Section 114(h). </span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">28. Coming to the presumption under Section 114(h), the contention of the respondent is obviously misplaced. An adverse inference, in law, can be drawn only against the person who refuses to answer a question. In the case on hand, the appellant has a dual role to play, namely, that of the respondent’s wife and that of Master Arjun’s mother. If the appellant does or refuses to do something, for the purpose of deriving a benefit to herself, an adverse inference can be drawn against her. But in her capacity as a mother and natural guardian if the appellant refuses to subject the child to DNA test for the protection of the interests and welfare of the child, no adverse inference of adultery can be drawn against her. By refusing to subject the child to DNA test, she is actually protecting the best interests of the child. For protecting the best interests of the child, the appellant-wife may be rewarded, but not punished with an adverse inference. By taking recourse to Section 114(h), the respondent cannot throw the appellant to a catch-22 situation.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">29. Therefore, Section 114(h) has no application to a case where a mother refuses to make the child undergo DNA test. It is to be remembered that the object of conducting a DNA test on the child is primarily to show that the respondent was not the biological <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">father. Once that fact is established, it merely follows as a corollary that the appellant was living in an adulterous relationship.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">30. What comes out of a DNA test, as the main product, is the paternity of the child, which is subjected to a test. Incidentally, the adulterous conduct of the wife also stands established, as a by-product, through the very same process. To say that the wife should allow the child to undergo the DNA test, to enable the husband to have the benefit of both the product and the byproduct or in the alternative the wife should allow the husband to have the benefit of the by-product by invoking Section 114, if she chooses not to subject the child to DNA test, is really to leave the choice between the devil and the deep sea to the wife.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">31. In fact, in cases of this nature the Court must bear in mind that Section 114 uses only the word “may” and not the word “shall”. Therefore, the constraints articulated in the exposition to Illustration (h) under Section 114 may dissuade the Court not to presume at all.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">32. Hence, we reject the contention of the respondent that what is sought to be invoked is only Section 114(h) and not Section 112.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">33. As rightly contended by Shri Huzefa Ahmadi, learned senior counsel for the appellant, the question as to whether a DNA test should be permitted on the child, is to be analysed through the prism of the child and not through the prism of the parents. The child cannot be used as a pawn to show that the mother of the child was living in adultery. It is always open to the respondenthusband to prove by other evidence, the adulterous conduct of the wife, but the child’s right to identity should not be allowed to be sacrificed.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">34. It is contended by Mr. Kapil Sibal, learned senior counsel for the respondent that after all the endeavour of every Court should be to find the truth and that every party to a litigation is entitled to produce the best evidence. Enabling the party to produce the best of evidence, is part and parcel of right to fair trial. Therefore, it is contended by learned senior counsel that the refusal to subject the child to DNA test would infringe upon the respondent’s right to fair trial. To buttress the contention that the right to privacy of an individual must yield to the right to fair trial of another, reliance is placed upon the decision of this Court in Sahara India Real Estate Corporation Limited & Ors. vs. Securities and Exchange Board of India & Anr</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">35. Attractive as it may seem at first blush, the said argument does not carry any legal weight. The lis in these cases is between the parties to a marriage. The lis is not between one of the parties to the marriage and the child whose paternity is questioned. To enable one of the parties to the marriage to have the benefit of fair trial, the Court cannot sacrifice the rights and best interests of a third party to the lis, namely, the child.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">36. Therefore, I concur wholeheartedly with my learned sister that the Family Court as well as the High Court were wrong in allowing the application of the respondent for subjecting the child to DNA test. Therefore, the appeal deserves to be allowed and accordingly it is allowed. However, this shall not preclude the respondent-husband from leading any other evidence to establish the allegations made by him against the appellant in the petition for divorce.</span></span></p>', 'e23aa9970e99d1470198909f73a346ef.jpeg', '3075e1cfc45d9992d2b45786400ae75e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-25', 1, '', '', '2023-02-22 13:14:24', '2023-02-25 12:02:16'),
(1871, '56B1pCoudopOGayj5MkxZgn4R', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Food Adulteration Act, 1954. Court cannot frame charge for ‘adulteration’ when prosecution case is ‘misbranding’. Judgement based on such charge liable to be set aside. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M. Ajithkumar Vs The State by Food Inspector, Koppa.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Revision Petition 1527 of 2016 decided on 24 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The factual matrix of the case of the prosecution is that the Food Inspector, Koppa has visited the shop belonging to the accused No.1-M. Umar on 16.02.2008 situate at Koppa and inspected the food articles and examined 20 packs each containing 200 miligrams of sungift refined cooking oil and found that there is adulteration in the said oil and noticed that the said oil was supplied by the revision petitioner and filed the complaint against the accused persons stating that they have violated Section 7(2) of the Prevision of Food Adulteration Act, 1954 (‘the Act’ for short) and thereby committed the offence punishable under Section 16(a)(i) of the said Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Based on the complaint, cognizance was taken against this revision petitioner and accused No.1 and both of them not pleaded guilty. Hence, the prosecution, in order to prove their case, examined P.Ws.1 to 4 and relied upon the documents Exs.P1 to P13(a) and two memo of objects were marked as M.Os.1 and 2 containing sungift refined cooking oil. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. The Trial Court, after considering both oral and documentary evidence placed on record, convicted both the accused and imposed sentence of fine of Rs.4,000/- each, failing which they are liable to serve the sentence of simple imprisonment for seven months. The accused No.1 paid the fine amount and the prosecution also challenged the inadequate sentence and filed appeal in Criminal Appeal No.233/2013 and the First Appellate Court reversed the judgment of the Trial Court and imposed sentence of six months vide judgment dated 09.11.2016. Hence, the revision petitioner-accused No.2 has filed this revision petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 5. Learned counsel appearing for the revision petitioner would vehemently contend that, admittedly, the charge was framed against the accused persons only to the effect that they have dealt with adulterated oil and the samples were sent to the laboratory for examination. The report do not indicate that the oil is adulterated and the same is with regard to misbranding which is also without jurisdiction and both the framing of charge as also the report is bad in law. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The counsel would also contend that the Trial Court also have totally ignored the admission of the complainant in his cross-examination that he had not sent the same for verification of the brand and that there is no notice given to the accused persons seeking for their explanation on the allegation of branding. He also contend that no opportunity was given to answer the claim/allegation and it was alleged for the first time, when the samples were received with the opinion that the same is misbranded. He would also contend that the trial Judge grossly erred in not noticing the fact that there was no misbranding and no offence was committed by the revision petitioner and the trial Judge ought to have noticed that the witnesses admittedly admit that the samples sent for analysis is not adulterated. The oil that was manufactured and distributed was soybean oil and the branding was also soybean oil. Therefore, there could not have been any offence by the revision petitioner as alleged. The allegation of the prosecution that the images of sunflower is depicted on the packet though the oil sold is soybean and that the commodity – soybean oil is written in small fonts is not correct. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. The counsel also would vehemently contend that the Court below ought to have noticed that the prosecution ought to have examined independent witnesses to establish that they were misguided by the signs and small fonts of the packets and that they purchased the soybean oil under the impression that the same is sunflower oil and instead of acquitting, erroneously convicted the revision petitioner.  The counsel would further contend that the First Appellate Court, grossly erred in not appreciating the evidence on record and has not recognized the right of appeal of the revision petitioner envisaged in law in cases where the State comes in appeal with much delay and both the Courts have committed an error in not considering the defence of the revision petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. The counsel would vehemently contend that the prosecution has not produced the notification regarding the appointment of the Food Inspector. In support of his contention, he relied upon the judgment of the Madhya Pradesh High Court in the case of SADHRAM VS. THE STATE OF M.P. in CRIMINAL REVISION NO.391 OF 1990, wherein it is held that failure on the part of the prosecution to bring the notification of the complainant as Food Inspector goes to the very root of the case. In absence of such notification on the record it cannot be said that the complainant was legally and validly appointed as a Food Inspector and therefore, they were competent to launch the prosecution against the applicants. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. The counsel also relied upon the judgment of the Allahabad High Court in the case of LALLAN PRASAD VS. STATE OF U.P. in CRIMINAL APPEAL NO.2901 OF 1977, wherein it is held that duty of the prosecution to have led evidence to show that Surendra Singh had been appointed as Food Inspector for the town of Mahmoodabad and no evidence was led on this point. Hence, he had no authority to act as Food Inspector. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>The counsel also relied upon the judgment of the Madhya Pradesh High Court in the case of HARBHAJAN SINGH VS. STATE OF M.P. AND ANOTHER in CRIMINAL REVISION NO.177 OF 1980, wherein also, the Court has held that valid appointment of a person as Food Inspector is a prerequisite to set the ball rolling for purposes of purchasing the sample, sending the same to the Public Analyst .</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. The counsel would vehemently contend that there is non-compliance of Sections 10(7), 11 and 13 of the Act by the prosecution which are mandatory in nature and goes to the root of the matter. The counsel also vehemently contend that the First Appellate Court has not reassessed the evidence and has only considered whether the Trial Court has committed an error in imposing inadequate sentence. The First Appellate Court being the final Court of finding was required to assess the evidence  and  the  same  has  not  been  done  and  instead, enhanced the sentence of simple imprisonment for a period of six months and therefore, it requires interference of this Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. Per contra, learned High Court Government Pleader for the respondent-State would vehemently contend that the Trial Court, while considering the material on record, framed appropriate points for consideration invoking Section 7(2) of the Act and sentence passed is also for misbranding and not adulteration. He would also vehemently contend that, inside the packet, soybean oil was found but, branding outside the packet is sunflower oil. Hence, the Trial Court comes to the conclusion that the same is misbranded. He would further contend that the principles laid down in the judgments referred by the learned counsel for the revision petitioner is not applicable to the facts of the case on hand and for the first time, the revision petitioner has urged the ground with regard to non-production of notification regarding appointment of Food Inspector is concerned and no such cross-examination was done during the course of cross-examination of prosecution witnesses, who have been examined as P.Ws.1 to 4.  He also further contends that notice was given to the revision petitioner and he had admitted in his reply but, the accused No.1 is no more and no sanction is required to initiate the proceedings. The charges leveled against the revision petitioner is also that he had misbranded and no charge is framed in respect of adulteration and both the Courts have taken note of the material on record and point framed is also in respect of misbranding and not in respect of adulteration. Hence, the very contention of the learned counsel for the revision petitioner cannot be accepted. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>21. In reply to the arguments of the learned High Court Government Pleader for the respondent-State, learned counsel for the revision petitioner would vehemently contend that soybean oil itself is sold and the same is also printed on the cover. He would also contend that the Food Officer cannot give any authorization and the complaint is also filed by local authority and he cannot delegate the power to file any complaint and no notification or gazette notification is placed before the Trial Court. The counsel would vehemently contend that no independent witnesses are examined and the judgments referred (supra) are aptly applicable to the case on hand, when no independent witnesses are examined. The counsel would further contend that no notice was given regarding misbranding and the same is admitted by P.W.1 in the cross-examination and the charge is framed for violation of Section 7(1) of the Act but, the conviction is in respect of 7(2) of the Act and though the prosecution contend that it is a case of misbranding, no material is placed before the Court with regard to the same. Hence, it requires interference of this Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b> 22. Having heard the respective counsel and also on perusal of the material on record, the points that would arise for consideration of this Court are:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(i)<span style=\"white-space:pre\">	</span>Whether the revision petitioner has made out a ground to exercise the revisional jurisdiction to set aside the orders passed by the Trial Court as well as the First Appellate Court?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(ii)<span style=\"white-space:pre\">	</span>What order?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>24. The first and the foremost contention of the learned counsel for the revision petitioner before this Court is that there was no adulteration and it was only a misbranding. The counsel also relied upon the document Ex.P10 i.e., the report received from the Divisional Public Analyst cum Regional Assistant Chemical Examiner, Mysuru Division, N.P.C. Hospital Compound, Nazarbad, Mysuru, wherein it is opined that the sample sent for analyst is not adulterated but, it is misbranded wide label-3(e) and the said report is given on 6th day of March, 2008. On perusal of the records of the Trial Court, it is seen that the charge was framed on 18th August, 2011 subsequent to receipt of the report. On perusal of the charges, it is seen that the trial Judge has framed the charge for the offence under Section 7 of the Act, particularly, Section 7(1) in respect of adulteration of food and Section 7(2) is in respect of misbranding food. The charge has been framed for the offence under Section 7(1) i.e., adulteration of food and that is not the case of the prosecution and the case of the prosecution is misbranding. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>25. On perusal of the complaint which is dated 8th July 2008 particularly, page No.2 in the bottom, it is stated that the information given in the packet is erroneous and also referred that the report of the analyst is misbranded and categorically mentioned in page No.3 that there is violation of Section 7(2) of the Act, punishable under Section 16(a)(i) of the Act. However, the allegation against this petitioner is that he has not issued cash bill in terms of Section 14 of the Act and he had distributed the oil packet, wherein also specifically mentioned that the petitioner has violated Section 7(2) of the Act, punishable under Section 16(a)(i) of the Act. But, the trial Judge has framed the charge for the offence under Section 7(1) of the Act and not for the offence under Section 7(2) of the Act. It is also important to note that the complaint dated 8th day of July, 2008 is subsequent to the receipt of the report from the analyst which is marked as Ex.P10 which is dated 6th day of March, 2008. Hence, it is clear that the report is received on 6th day of March, 2008 and complaint is filed in the month of July i.e., 8th day of July, 2008 and inspite of it, though allegation is in respect of Section 7(2) of the Act, the Trial Court framed the charge for the offence under Section 7(1) of the Act. Hence, very framing of the charge itself is erroneous.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>27. The other contentions of the learned counsel for the revision petitioner are that, no authorization to file any complaint and the delegatee also cannot delegate the powers. He also would contend that, no notification was produced regarding appointment of Food Inspector and the independent witnesses have not been examined. It is also his contention that non-furnishing of report of Public Analyst and misbranding of label does not require any opinion from the Public Analyst. When charge has not been properly framed and conviction and sentence is passed for in respect of violation under Section 7(2) of the Act, it is appropriate to set aside the judgments of both the Trial Court as well as the First Appellate Court by keeping open the other contentions of the learned counsel for the revision petitioner and remand the matter to the Trial Court for framing appropriate charges and consider the matter afresh. If need arises, the Trial Court shall also permit the prosecution as well as the revision petitioner to adduce evidence before the Trial Court since, proper charge has to be framed and an opportunity has to be given to the revision petitioner to meet the case of the prosecution and unless the charge is specific, meeting the case of the prosecution by the defence is also very difficult. Hence, the judgment and sentence passed by the Trial Court  as  well  as  the  First  Appellate  Court  is  not  legally sustainable in the eye of law and it requires fresh consideration.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(i)<span style=\"white-space:pre\">	</span>The criminal revision petition is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'cb1d7fda9edc0b4bf490a3ad4e252145.jpeg', '9ef0e0622edbe89d8a573cee1937f18c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-28', 1, '', '', '2022-06-27 17:33:41', '2022-06-28 10:23:27');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1872, 'rvx2Gif8fQNaWlDkBHkjrk4KK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Assessee is entitled for ‘Nil Tax Deduction at Source’ for payments made towards reimbursement of salaries of deputed expatriate employees. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Flipkart Internet Private Limited Vs The Deputy Commissioner of Income Tax and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 3619 of 2021 decided on 24 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Sunil Dutt Yadav.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The petitioner is stated to be engaged in the business of providing Information Technology Solutions and Support Services for e-commerce industry. In the course of its business, the petitioner is stated to have made payments in the nature of \"pure reimbursements\" to M/s.Walmart Inc., Delaware, USA (hereinafter referred to as \'Walmart Inc.\') for the Assessment Year 2020-2021 and in that regard had requested the Department for issuance of a \'Certificate of No Deduction of Tax at Source\'. The payment of salaries to the deputed expatriate employees were stated to have been made by \'Walmart Inc.\' for administrative convenience and the petitioner had made reimbursements to \'Walmart Inc.\' With respect to such payments, the petitioner had sought for granting of Certificate under Section 195 of the I.T. Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. \'Walmart Inc.\' and Flipkart Singapore had entered into an Inter-Company Master Services Agreement (M.S.A.) dated 28.05.2019 for secondment of employees and provision of services. In terms of the M.S.A., either of the parties or its affiliates could use the seconded employees. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. That Clause 4.2 provides that the party placing the secondees will invoice the compensation and the wage cost of secondees incurred in the Home Country. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. It is pointed out that the M.S.A. has two distinct parts -</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) relating to provision of services and</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) secondment of employees. The present petition is concerned only with the secondment of employees.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 7. It is the stand of the petitioner that in terms of the M.S.A., \'Walmart Inc.\' had seconded four employees to the petitioner and had entered into a \'Global Assignment Arrangement\' with the seconded employees, which provided that the seconded employees would work for the benefit of the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. The petitioner is stated to have issued the letters of appointment confirming the employment of seconded employees with the petitioner and in such letters of appointment, the details of responsibilities of the seconded employees has been detailed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 9. It is stated that the petitioner makes contribution to the Provident Fund Authorities as an \'employer of seconded employees\' and that the said employees are working in India on \'Employment VISA\' wherein, the petitioner is declared to be an \'employer\'. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. In response to the invoices raised by \'Walmart Inc.\' as regards the payments made towards salaries of the seconded employees, the petitioner had intended to make payments to \'Walmart Inc.\', and in that context, had made an application at Annexure-\'G\' under Section 195(2) of the I.T. Act requesting for allowing the remittance of cost-to-cost reimbursements to be made by the petitioner without deduction of tax at source. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">11. It is also submitted that \'Indo-US Double Taxation Avoidance Agreement (\'DTAA\' for brevity) would be of relevance, as double taxation at source where a non-resident earns income in India and is liable for being taxed for such income in the Country of residence, is to be avoided.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">13. The petitioner is not required to deduct tax under Section 195 on payments which are in the nature of reimbursement, as \'withholding obligations\' under Section 195 arise only when the \'sum paid\' to the non-resident is \'chargeable to tax\' under the Act. Reliance is placed on the judgment in the case of GE India Technology Centre Private Limited v. Commissioner of Income Tax  and Another.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. The \'Memorandum of Understanding\' (MoU) dated 12.09.1989 entered into between the Government of India and U.S.A. which is stated to be forming part of the \'DTAA\' provides that Fee for Included Services (hereinafter referred to as \'FIS\'), which \'make available to the person acquiring the services\', only would be amenable to tax. Accordingly, it is submitted that any service that does not make technology available to the person acquiring the service would not fall in the category of \'make available\' and accordingly, would stand excluded from the provision of Article -12 of \'DTAA.\' </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. The payments in the nature of reimbursement cannot be charged as income under the Act. In the present case, the petitioner has paid only the actual cost of salaries of the seconded employees and there is no \'mark-up\' which is retained by \'Walmart Inc.\' on such costs. Reliance is placed on the judgment of Hon\'ble Supreme Court in Director of Income Tax (IT)-I v. A.P. Moller Maersk A S2, as also the judgment in Commissioner of Income Tax v. Kalyani Steels Ltd.,. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17. It is further contended that the payment made by the petitioner to \'Walmart Inc.\' are mere reimbursement of salaries paid to the seconded employees and once such payments are salaries, the same falls outside the purview of \'FIS\' in terms of Article 12 and 16 of DTAA. In light of the law laid down by the Apex Court in Union of India and Another v. Azadi  Bachao  Andolan  and  Another4  and  Engineering Analysis  Centre  of  Excellence  Private  Limited  v. Commissioner of Income Tax & Another provisions of \'DTAA\' insofar as it is more beneficial to the assessee would prevail over the domestic law and as payments in question being in the nature of salaries under Article 16 cannot be treated as \'FIS\' by the respondent Authorities by applying Section 9 of the I.T. Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>29. The contention that provision of services rendered by the seconded employees would not fall within the ambit of \'FTS\' is to be rejected, as the services are provided by seconded employees, who were offered senior positions in the Management and such employees were assigned by \'Walmart Inc.\' to the petitioner only because of their experience in managerial and consultancy skills required by the petitioner and accordingly, the payment made ought to be construed as \'FTS\' as defined in Section 9(1)(vii) of the I.T. Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>32. In light of the above factual matrix, the following points arise for consideration:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(A)<span style=\"white-space:pre\">	</span>Whether the application of the petitioner dated 15.01.2020 filed under Section 195(2) of the Income Tax Act was not maintainable?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>It is the contention of Revenue that the application under Section 195(2) is maintainable only in the event of composite payment and that where a \'NIL Deduction Certificate\' is sought for, recourse is to be made under Section 197. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>It must be noted that the Deputy Commissioner of Income Tax (DCIT) while passing the impugned order has not dealt with such aspect and has rejected the application on its merits. In the present proceedings, wherein the petitioner has sought for setting aside of the impugned order, submission is made by the Revenue that Section 195(2) could not have been invoked. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space:pre\">	</span>If it were the stand that the application was not maintainable, the DCIT ought to have recorded such finding while rejecting the application. In the absence of any finding regarding the non-maintainability of the application, it is not open for the Revenue to canvass such point in the proceedings instituted by the petitioner. The judicial review of the order of DCIT cannot be enlarged by considering fresh contentions which would have the effect of altering the impugned order by reading into its substantive aspects which were not considered by the DCIT. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv)<span style=\"white-space:pre\">	</span>As rightly pointed out by the petitioner, such a contention as raised finds a cursory and fleeting mention in the statement of objections filed by the Revenue and cannot be raised for the first time in the present proceedings. Even otherwise, the scope of Section 197 being distinct from that of Section 195(2), as Section 197 would come into operation on an application by the recipient of an income, which is not the factual scenario in the present case.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">(B) Whether the petitioner is required to deduct TDS under Section 195(2) read with Article 12(4) of the convention between Government of United States of America and the Government of Republic of India for the avoidance of Double Taxation and the prevention of FISCAL evasion?</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">(xi)<span style=\"white-space: pre;\">	</span>The DCIT while passing the impugned order at Para-36 has concluded that payment made to \'Walmart Inc.\' will fall in the category of payments made to any person in consideration for rendering technical, consultancy services through the provision of services of technical or other personnel. It is observed that \'Walmart Inc.\' has through the seconded employees provided technical services to Flipkart Internet Private Limited (India), as technical services would also include provision of services of personnel. In the impugned order what has been lost sight of is the requirement of \"make available\" in terms of Article 12(4)(b).</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(C) Deduction under Section 195(2) of Income Tax Act on the \'sum chargeable under this Act</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>As discussed above, it is the provision of \'DTAA\' that would be of only relevance in determining the necessity of deducting tax. However, de hors the \'DTAA\', the question of deduction would only arise where the payee is seeking to make payment to the non-resident of a sum chargeable under the I.T. Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>The DCIT has grossly erred while concluding that where the payment is made for the services rendered, then whether the charge for the services rendered is equivalent to the cost or not becomes irrelevant. The finding that the services rendered fall within the description of services as in Explanation-2 in Section 9(1)(vi) and that the element of profit is not an essential ingredient of receipt, to make it taxable is erroneous.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(D)<span style=\"white-space:pre\">	</span>Whether Deduction is on gross receipts?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>The contention of learned counsel Sri. K.V.Aravind is that normally the deduction is on gross receipts as in cases of Section 194J and Section 194C of the I.T. Act and in light of the principle laid down in Associated Cement Co. Ltd. v. Commissioner of Income-Tax, in the present case also the deduction should be on the gross remittance.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>Section 194C provides for deductions \"at the time of credit of such sum to the account of the contractor or at the time of payment thereof in cash….\". Similarly, Section 194J provides for deduction \"at the time of credit of such sum to the account of the payee or at the time of payment thereof in cash…..\"</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space:pre\">	</span>In the case of Associated Cement Company Ltd. (supra), the question was as regards deduction of tax under Section 194C(1) and as to whether deduction was to be confined to the income component of that sum was under consideration. The Apex Court has observed that it was neither possible nor permissible to the payer to determine what part of the amount paid by him to the contractor constitutes income of the latter. It was further observed that permitting such ascertainment of income component would result in placing an impossible burden upon the payer and would result in \'an impractical and unworkable provision\'. This would not further the case of the Revenue as Section 194C(1) refers to deduction at the time of credit of \'such sum\', which is in contradistinction to Section 195 where the deduction is on \'any other sum chargeable under the provisions of the I.T. Act\'<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>(E) Secondment and reimbursement of costs: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(i)<span style=\"white-space:pre\">	</span>In the impugned order, the DCIT has construed the secondment where services are provided and payment made thereon as being within the ambit of tax liability. As discussed supra, the \'FIS\' in terms of the \'DTAA\' would not include any payment towards provision of mere rendering of service and there must be a sine qua non of \'make available.\' Further, the payment must be one chargeable under the provisions of I.T. Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(ii)<span style=\"white-space:pre\">	</span>The payment is pursuant to M.S.A. and the payment in the present case relates to the secondment of employees.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>33. In the present case, the stand taken on the material available is on the construction of legal position. As pointed out in the discussion earlier that the understanding of the legal position being erroneous, the only conclusion that could be arrived at is to allow the application. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>34. Though the Revenue has raised numerous contentions that further information is required to record a detailed finding, such stand is taken up for the first time in the present proceedings. A perusal of the file of the Department does not make out any instance where the Department had sought for further information which was not furnished. On the contrary, the petitioner has made out detailed representation on the legal position and record does not reflect any requisition for further information remaining unanswered<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>35. Further, it must be noticed that the finding as regards deduction of tax at source under Section 195 of the I.T. Act is tentative insofar as the Revenue is concerned. Even if the Revenue orders that there was no obligation to make deduction under Section 195, the question of liability of the recipient still remains to be decided subsequently. Accordingly, the question of prejudice to the Revenue at the stage of Section 195 order is unavailable to it. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>36. Curiously, the file contains a note by the same DCIT who has eventually passed the impugned order, which note dated 10.03.2020 addressed to the C.I.T. seeks for granting approval for granting deduction of TDS at the rate of zero per cent on cost-to-cost reimbursement. However, the opinion was directed to be reconsidered as per the endorsement found in the file and eventually an order was passed by DCIT contrary to the earlier view and has rejected the application.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>38. In light of setting aside of the impugned order in the context of legal position as noticed, the only order that can now be passed is of one granting \'nil tax deduction at source.\'</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>39. Accordingly, in light of the above discussion, the impugned order at Annexure-A dated 01.05.2020 is set aside and the respondent No.1 is directed to issue a Certificate under Section 195(2) of I.T. Act to the effect of \'Nil Tax Deduction at Source\' as regards the petitioner\'s application dated 15.01.2020. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '89a1b58f593fa2fc6f44c1d9040674f1.JPG', '0472b80061f207af85781eef5879bcff.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-28', 1, '', '', '2022-06-27 18:03:18', '2022-06-28 12:16:56'),
(1873, 'wbugP5Ts1jpQOPFD61MTkDANu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Plea of adjustment by defendant can be pressed into service only if the same was raised before the institution of the suit and not afterwards. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Southern Dredging CO Private Ltd  Vs K. Muhammed Haji.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>OP (C) 2434 of 2021 decided on 15 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A. Badharudeen.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. It is argued by the learned counsel for the petitioner that\r\nthe petitioner filed written statement in the Suit claiming\r\nRs.16,83,000/- by the respondent herein, on 21.10.2011 and\r\nthereafter additional written statement was filed on 07.10.2021\r\nwith petition to receive the same. It is submitted further that by\r\nway of additional written statement, the petitioner put up plea of\r\n`adjustment\' of the Suit amount towards the damages sustained to\r\nthe petitioner which is assessed as Rs.77,41,970/-.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The respondent herein, the plaintiff in the Suit, filed\r\nobjection and zealously opposed acceptance of additional written\r\nstatement, which was filed after a period of 10 years with plea of\r\n`adjustment\'.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. It is submitted by the learned counsel for the respondent\r\nthat there is no pleading in the original written statement regarding\r\nthe adjustment and the amount which the defendant wanted to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">adjust is yet to be decided by the trial court. Further, unilateral\r\nadjustment is not permitted in law and the defendant could not raise\r\na totally new case by way of adjustment, by filing additional\r\nwritten statement.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n6. Reply affidavit also has been filed before this Court\r\nstating that when the original written statement was filed as early as\r\non 21.10.2011, the plea of set off or counter-claim or `adjustment\'\r\nnot raised in the said original written statement and at a much\r\nbelated stage, plea of `adjustment\' being pressed into by filing\r\nadditional written statement. It is averred further that the plea of\r\n`adjustment\' is barred by limitation also.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. While crystallysing the controversy being posed,\r\nreference to relevant provisions in the Code of Civil Procedure is\r\nessential. Order 8 Rule 6A of the Code of Civil Procedure permits\r\na defendant in a Suit to plea `set off\' or `counter claim\' against the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">claim of the plaintiff in respect of any right or claim based on a\r\ncause of action accruing to the defendant against the plaintiff either\r\nbefore or after the filing of the suit but before the defendant has\r\ndelivered his defence or before the time limited for delivering his\r\ndefence has expired, whether such counter-claim is in the nature of\r\na claim for damages or not. Similarly, Order 8 Rule 9 deals with\r\nsubsequent pleadings.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. In another decision of the Apex Court reported in [2019\r\n(5) KHC 735 : 2019 (4) KLT 790 : 2020 (2) SCC 394], Ashok\r\nKumar Kalra v. Wing Cdr. Surendra Agnihotri & Ors. (3 Bench\r\ndecision), restrictions on filing counter-claim, after filing of written\r\nstatement has been discussed and it has been held that there is no\r\nabsolute right to the defendant to file counter-claim with\r\nsubstantive delay even if limitation period prescribed has not\r\nelapsed.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. The legal position is not in dispute further that when set\r\noff or counter-claim is raised in the written statement, the defendant\r\nshall pay court fee for the same and no court fee is liable to be paid\r\nif a plea of `adjustment\' is raised. Going by the ratio of the decision, plea of payment or adjustment is\r\ndefinitely and essentially different plea and can be pressed into\r\nservice only if the same was raised before the institution of the suit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Thus the legal position regarding adjustment is no more\r\nres integra on the point that a plea of adjustment by payment is\r\ndefinitely and essentially a different plea and can be pressed into\r\nservice only if the same was raised before the institution of the suit\r\nand not afterwards. To determine whether a plea raised in defence\r\nis a plea of set off or of payment by adjustment it has to be\r\nascertained as to whether a separate action could be maintained by\r\nthe defendant on the basis of his claim. If he could institute a\r\nseparate suit for realisation of the amount due to him, it is a case of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">set off. If the adjustment was made prior to the filing of the suit by\r\nthe plaintiff and a plea is taken to that effect, it would be a plea of\r\nadjustment by payment. That apart, no pecuniary liability arises till\r\nthe Court determine that the party complaining of the breach is\r\nentitled to damages. The Court in the first place must decide that\r\nthe other side is liable and then, it should proceed to assess and\r\nquantify the liability. Till the said determination, there is no\r\nliability at all upon the other side and no `adjustment\' in regard to\r\nthe damages which is not quantified is liable to sustain.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In view of the matter, the plea of `adjustment\' that has been\r\ncanvassed by filing additional written statement in the present case\r\nappears to be not tenable and, therefore, the trial court rightly\r\ndismissed the application and the same does not suffer from any\r\nperversity, illegality or irregularity and hence requires no\r\ninterference by this Court.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Accordingly, this Original Petition stands dismissed </b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '07e5b4f556e87b2e53cadc22ee77d600.jpeg', '736970a06c83c6be414c9f6c146f7b25.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-28', 1, '', '', '2022-06-27 18:39:19', '2022-06-28 06:20:44');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1877, 'kmJhJneiDuB4W5bsr50ODo7HH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Public duty is cast on the Municipal authorities to safeguard the citizens from attack of street dogs. Karnataka High Court issues exhaustive directions/guidelines. Orders Rs. 10 lakhs compensation to the father of the child killed by street dogs.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Yusub Mohamusab Sanadi Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 110352 of 2019 decided on 10 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The petitioner is engaged in masonry work. On 28.11.2018, the<span style=\"white-space: pre;\">	</span>younger son of the petitioner, Master Abbasali Yusub Sanadi, who was aged about 22 months, was attacked by 4 to 5 street dogs while he was playing behind his house after attending nature’s call and dragged him to a nearby agricultural field and mauled him, causing serious injuries to his face, head, thighs etc. Though he was immediately taken to K.L.E’S Dr.Prabhakar Kore Hospital, Belagavi, he could not be saved and he succumbed to the aforesaid injuries. The doctor had opined in the autopsy report that the death was caused due to shock and hemorrhage as a result of multiple injuries sustained. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. When the fact of this attack and death was reported in newspapers, though the respondents had offered to help, no compensation was paid to the petitioner. The petitioner addressed various communications to the respondents but in vain.  The petitioner aggrieved by the death of his minor son due to the attack of street dogs is before this Court claiming for the aforesaid reliefs more particularly compensation as detailed in the prayer. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4. Vide order dated 11.11.2020, this Court had directed for interim compensation of a sum of Rs.1,50,000/-with interest at the rate of 8% p.a from the date of death of petitioner’s son till the date of deposit. A sum of Rs.77,458/- (Rs.50,000/- with interest) has been released and withdrawn by the petitioner on 25.06.2021. The remaining 1,00,000/- and interest accrued thereon has been deposited in a fixed deposit account in a nationalized bank.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Sri.Santosh Pujari, learned counsel for the petitioner would submit that: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.1.<span style=\"white-space: pre;\">	</span>There is a duty cast on the respondents to ensure that the street and human habitation of the villages/cities etc., are free of dogs and that the humans inhabiting the areas are protected from  any  attack  by  such  street  dogs  or otherwise. This duty has not been discharged by the respondents resulting in street dogs attacking the petitioner’s minor son. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.2.<span style=\"white-space: pre;\">	</span>A statutory duty is vested with the respondents to control the population of the street dogs under the Animal Birth Control (Dogs) Rules, 2001 which has not been discharged. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.4.<span style=\"white-space:pre\">	</span>The petitioner has a public law remedy for compensation and as such, Writ Petition is maintainable. The petitioner has lost his son and also incurred hospital expenses to an extent of about Rs.80,000/- for the treatment which is required to be reimbursed by the respondents.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. Sri.Shivaraj Hiremath, learned counsel for respondent Nos.2 and 4 would further submit that: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.1.<span style=\"white-space:pre\">	</span>Respondents No.2 and 4 have taken adequate steps and measures to prevent the occurrence of such attacks despite which the attack has occurred. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.2.<span style=\"white-space:pre\">	</span> There is no negligence as such on the part of the respondents No.2 and 4 and therefore, respondents No.2 and 4 cannot be made responsible and/or liable to make payment of compensation.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 8.3.<span style=\"white-space:pre\">	</span>He submits that the child was left unattended which has resulted in the attack by the dogs. If some elders were near the child, no such attack would have occurred.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. The points that would arise for determination are:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space:pre\">	</span>Whether there is a public duty and/or statutory duty vested with the municipal authorities to safeguard the citizens residing in the area from attack by street dogs?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space:pre\">	</span>In the present case, whether respondents No.2 and 4 would be liable to make payment of compensation? If so, to what extent?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>What order?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>Answer to point No.1:  Whether there is a public duty and/or statutory duty vested with the municipal authorities to safeguard the citizens residing in the area from attack by street dogs? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.1. This Court vide its order dated 11.11.2020 has already come to a prima facie conclusion that the respondents more particularly respondents No.1, 2 and 4 are liable to make payment of compensation and directed to make payment of interim compensation of Rs.1,50,000/- along with interest.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.3. The High Court of Bombay in MARUTI SHRISHAILYA HALE AND OTHERS VS. THE COMMISSIONER,  SANGLI  MIRAJ  KUPWAD CORPORATION AND OTHERS in W.P.NO.4075/2015 has categorically held that the right guaranteed by Article 21 of the Constitution of India is not merely a right to survive but extends to right to live a dignified and meaningful life and as such, there is a corresponding obligation on the State Government and its agencies to ensure that the said rights are not violated. In that case also a child was attacked by stray dogs as a result of which large number of injuries were caused resulting in the death of the child. The Hon’ble Bombay High Court held that there was a failure on the part of the municipal corporation to perform its duties by not taking all possible steps to curb the menace of stray dogs. The Bombay High Court by referring to the decision of the Hon’ble Apex Court in SMT.NILABATI BEHERA @ LALITA BEHERA VS. STATE OF ORISSA AND OTHERS reported in 1993 (2) SCC 746 has held that the awardal of compensation in a proceeding under Article 226 of the Constitution of India is a remedy available in public law based on strict liability for contravention of fundamental rights as regards which principle of sovereign immunity would not apply and the Bombay High Court granted interim compensation in the matter.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.12.11.<span style=\"white-space:pre\">	</span>The citizens must also bear in mind that street dogs also have a right to live and therefore, must refrain from attacking these dogs by stone throwing or by beating etc. They must ensure that children do not go near the stray dogs either to play with them or to feed them.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.13. In view of the above, I answer Point No.1 that there is a public duty and/or statutory duty vested with the municipal authorities to safeguard the citizens residing in the area from attack of street dogs and that the municipal authorities are responsible and as such are required to follow the above directions. A compliance report to be filed within a period of three months from the date on which this Order is webhosted. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. Answer to Point No.2: In the present case, whether respondents No.2 and 4 would be liable to make payment of compensation? If so, to what extent?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.1. The compensation which has been sought for is a public law remedy under Article 226 of the Constitution of India and as such, the principles of Section 72 and 73 of the Indian Contract Act would not be strictly applicable, since the liability imposed is on account of default in implementation of the statutory duties on the basis of strict liability.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.5. As regards payment of the compensation caused due to the death of a child, considering that a minor child has died who would have been a support for the petitioner during his old age as also considering the loss of love and affection the mental agony caused to the petitioner and his family due to the untimely death of the minor child in such a bizarre and cruel manner I deem it fit to award a sum of Rs.10 lakhs as compensation payable by respondent No.2 to the petitioner. The said amount shall also bear interest @ 6% p.a. calculating from the date of death of the minor child till the disbursement of the amount. While doing so, deduction for the already deducted amount of Rs.1,50,000/- shall be given. The amount in deposit of Rs.1,00,000/- is directed to be released to the petitioner.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>Answer to Point No.3: What order?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space:pre\">	</span>The Writ Petition is allowed;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ii.<span style=\"white-space:pre\">	</span>Municipal authorities like Respondent No.2 to 4 are held to be liable under public law for any injury and/or death caused to any citizen on account of attack by street dogs within the jurisdiction of the said municipal authority;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>iii.<span style=\"white-space:pre\">	</span>Respondent No.2 is directed to comply with the directions issued at in the present order within a period of 4 months from today and file an affidavit of compliance, Respondent No.1 shall make necessary arrangements and provide the requisite funds for the Respondent No.2 to comply with the above directions;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">iv.<span style=\"white-space:pre\">	</span>Respondent No.2 is directed to make payment of Rs.10 lakhs as compensation to the petitioner along with interest @ 6% p.a. calculated from 29.11.2018 being the date of </font></span><font face=\"Calibri, sans-serif\">death of the minor son within a period of four weeks from the date of receipt of a copy of this order. While making payment of the said amount, due deduction for the already paid amount of Rs.1,50,000/- shall be given. The Counsel for the Petitioner is permitted to serve a copy of this order on the respondents.</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>vi.<span style=\"white-space:pre\">	</span>Respondent No.2 is also directed to make payment of Rs.20,000/- being the cost of the present proceedings within a period of four weeks from the date of receipt of copy of this order.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '28d6e5d4d495c7bd35ddc44dc8e7715c.jpeg', 'cd66c6d74e0c728e2208c8254b6768ef.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-30', 1, '', '', '2022-06-28 17:27:12', '2022-06-30 14:00:03'),
(1875, 'jDwyBCpVQut78C7ErmZL9V6GJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Vendor committing breach of agreement to sell his property and returning the advance amount to purchaser does not constitute criminal breach of trust. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Prakash Kumar Singh and others Vs Infrastructure Ltd.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 4238 of 2016 decided on 20 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The 2nd respondent lodged the FIR alleging that he had entered into an agreement of sale with the petitioners - accused for purchasing of flat in the apartment complex to be constructed by the petitioners - accused, and in lien of the same, he had paid a sum of Rs.11,27,888/- towards advance sale consideration. It is further alleged that the petitioners - accused have returned back the advance sale consideration paid by the 2nd respondent and by not executive the sale deed, which was promised under an agreement of sale, have committed the criminal breach of trust. The police registered the FIR for the offence punishable under Section 406 of IPC. Taking exception to the same, this petition is filed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. It is admitted that the accused had executed an agreement of sale in favour of the 2nd respondent to sell a flat in an apartment complex to be constructed by the petitioners -accused and in lieu of the same have received the advance sale consideration. It is undisputed that the petitioners - accused instead of executive the sale deed as specified under the agreement sale have returned the advance sale consideration with interest to the 2nd respondent. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. To constitute an offence punishable under Section 406 of IPC, a person entrusted with property must have dishonestly mis-appropriated or converted to his own use the property. In the present case, the advance sale consideration received by the petitioners - accused has been returned to the 2nd respondent after unilaterally canceling the agreement of sale, which is the subject matter of arbitration proceeding and the same is pending consideration. The dispute between the parties arises out of breach of conditions contained in the agreement of sale, which is purely civil in nature, however, given a criminal texture with ulterior motive for wrecking vengeance. In the absence of any essential ingredients so as to constitute commission of offence alleged against the petitioner, the registration of FIR against the petitioners is impermissible.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space:pre\">	</span>Criminal petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ii)<span style=\"white-space:pre\">	</span>The impugned FIR in Crime No.126/2016 registered by the Ramamurthy Nagar PS, K R Puram Sub-Division, is hereby quashed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '389c63fac367893abefec37000b6c65a.jpeg', '8590bd41f11aa9d5b555e67fcaef88cd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-28', 1, '', '', '2022-06-27 20:17:46', '2022-06-28 13:55:21');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1876, 'MERjdM8vCn4XiKaSLFzrT64MQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Delhi High Court restrains rogue websites amazonbuys.in estoreamazon.in similar to Amazon\'s websites. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Amazon Seller Services Private Limited and another Vs Amazonbuys.in and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CS(COMM) 364 of 2022 decided on 26 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Jyoti Singh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. It is averred in the plaint that Plaintiff No. 1, inter alia owns, operates and manages the India online marketplace at www.amazon.in wherein lakhs of third-party sellers and buyers interact and conduct their transactions. Plaintiff No.1’s online marketplace provides its users access to a range of approximately 170 million products listed/offered for sale by approximately 3,00,000 registered sellers across a broad range of categories. Plaintiff No.1 has lakhs of active visitors/users on its marketplace from all over the country at any given point of time.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. It is averred that Plaintiff No.2 is an affiliate of Amazon.com Inc, a company based in Seattle, Washington. Plaintiff No.2 is the owner of the ‘AMAZON’ trademarks in various classes, as also the owner of copyright in the ‘AMAZON’ logos, which are artistic works as per Section 2(c) of the Copyright Act, 1957. Plaintiff No.2 has licensed its copyrights and trademarks to Plaintiff No.1, for the purpose of promotion, publication and merchandising within the territory of India. By virtue of being the licensee of such trademarks and copyrights, Plaintiff No.1 is responsible for granting licenses for commercial exploitation of Plaintiff No.2’s copyrights and trademarks in India.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. It is further averred the trademark ‘AMAZON’ was adopted in the year 1995 and by virtue of its long, continuous and extensive use since its adoption in relation to the Plaintiffs’ business, has become immensely popular and well-known. It is submitted that the success of the Plaintiffs’ ecommerce business, which is dependent on the popularity and reach of the ‘AMAZON’ services and trademarks, is reflective of the immense recognition and fame that the ‘AMAZON’ trademarks enjoy.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. It is averred that the use of the mark ‘AMAZON’ in relation to online <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sales are synonymous with the Plaintiffs and are therefore inherently distinctive. Consumers immediately associate ‘AMAZON’ with the Plaintiffs. Apart from e-commerce, the ‘AMAZON’ name and trademarks are also associated with online streaming services such as ‘Amazon Prime Video’ and ‘Amazon Music’. The degree of association of the ‘AMAZON’ trademark or the ‘AMAZON’ series of marks with the Plaintiffs is so intense that any reference to the word ‘AMAZON’ in the context of e-commerce would lead a substantial part of members of the public to recognize, acknowledge and associate the same exclusively with the Plaintiffs. The trademark ‘AMAZON’ is also relied upon to distinguish the Plaintiffs’ services from other Companies and their services.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>29. It is pleaded that in October 2018, ‘The Guardian’ reported that the Plaintiffs, together with Apple and Google, is one of the most valuable brands in the world. Further, the Plaintiffs have maintained their position by being ranked as the top-most valuable brand in the world in the Brand Finance Global 500 report in 2019 and 2020. In fact, Amazon has been ranked third by Interbrand in global brand rankings.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>30. It is averred that the reputation and goodwill of ‘AMAZON’ trademarks is not restricted to the online marketplace but spills over into online streaming services, cloud storage, artificial intelligence, producers of consumer electronics (Kindle e-readers, Echo, Fire tablet etc.), production houses, gaming services, publishers, amongst others.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">31. It is averred that the Amazon Easy (“AE”) program is an assisted shopping program introduced by Plaintiff No.1. The ‘AE’ program is a program that allows interested parties to set up an ‘Amazon Easy Store’ by getting in touch with Amazon Easy marketing partners. Store owners </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">through AE Store provide assistance to a customer to browse selections, identify and select a product that they like and buy products on www.amazon.in marketplace. Some of the products available on Amazon.in are displayed at these stores for customers to touch and feel the product before placing an order on Amazon.in. This allows interested buyers (who would have otherwise placed orders on the amazon.in marketplace directly) to walk into the ‘Amazon Easy Stores’ and view/experience the product prior to purchasing the same on www.amazon.in. Further, ‘Amazon Easy Stores’ also assist buyers who face difficulties/impediments in navigating through the amazon.in marketplace for placing orders.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>32. It is averred that the ‘AE’ program was piloted way back in 2016 and has since expanded across States and Union Territories in India. Over the last six years, the Plaintiffs have set up a vast network of close to 100,000 AE Stores across the country. The AE program has been extremely successful in bridging the digital divide for India’s shoppers in small towns and cities. Not only does the AE program benefit potential buyers interested in placing orders on the amazon.in marketplace but is also a source of income and livelihood for many third-party store owners, who are looking to scale up their businesses.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">33. It is averred that Plaintiff No.1 is the authorized user and licensee of these registered trademarks whose proprietor is Plaintiff No. 2. Plaintiff No.1 being a Licensee, has been extensively using ‘AMAZON’ as a part of its brand campaign and for every mode of communication/correspondence. The list of Plaintiff’s registered, valid and subsisting trademarks is mentioned in para 23 of the plaint.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. It is averred that the Plaintiffs are the bona fide prior adopter, continuous and uninterrupted user and registered proprietor of the Amazon family of trademarks globally and in India. By virtue of its long and continuous use as also its immense popularity with its consumers, the Plaintiffs’ marks have achieved a status of well-known marks, not only in India but globally, as per Sections 2(1)(zg), 11(6) and 11(7) of the Trade Marks Act, 1999. The Plaintiffs enjoy both statutory rights under the Trade Marks Act, 1999 and also common law rights arising from the goodwill and reputation associated with the Plaintiffs’ Marks. Thus, the Plaintiffs’ Marks are entitled to protection against any kind of misappropriation. Accordingly, the unauthorized use of the Plaintiffs’ Marks or any other deceptive variant thereof, with respect to any goods or services whatsoever, constitutes infringement and passing off the Plaintiffs’ statutory and common law rights.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>35. It is averred that apart, from the registered trademark rights, as mentioned aforesaid, Plaintiff No.2 is the owner of the copyright in the artistic work comprised in the unique get up, lay out with respect to “Amazon” logos. The said logos constitutes an original artistic work within the meaning of Section 2(c) of the Copyright Act, 1957 and is consequently the subject matter of copyright protection under Section 13 of the Copyright Act, 1957.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>36. It is further averred that Plaintiff No.1 not only operates and manages the Plaintiffs’ Website/Domain Name (viz., www.amazon.in) but also sources all the content (literary and artistic) for the said website/domain name. The literary content (including but not limited to Contact Us, FAQs, etc.), graphical user interface, arrangement and colour scheme as contained <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">on Plaintiff No.1’s Website/Domain Name i.e., amazon.in qualifies as ‘literary work’ per Section 2 (o) of the Copyright Act, 1957. Further, the images, pictures and photographs contained on Plaintiff No.1’s Website/Domain Name qualify as ‘artistic works’ per Section 2 (c) of the Copyright Act, 1957.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>37. It is pleaded that the copyright of Plaintiff No.1 subsists in its Website/Domain Name i.e., amazon.in as well as in the overall ‘look and feel’ of the website ‘www.amazon.in’.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>38. It is averred that Defendants No.1 to 3 are the Rogue Defendants who are defrauding innocent members of the public, by inter alia requiring them to pay a fee towards registration as an ‘Amazon Easy Store’.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>39. It is averred that the Rogue Defendants have engaged in a pre-planned conspiracy to defraud and dupe innocent members of the public by unauthorizedly and illegally using the Plaintiffs’ Marks, either on the rogue websites and social media pages operated by them or as part of the domain name registered by the Rogue Defendants and are blatantly reproducing the Plaintiffs’ Website Content as well as adopting a look and feel that is identical to the Plaintiffs’ website ‘www.amazon.in’. It is averred that the Rogue Defendants have engaged in these infringing and deceptive activities to de-fraud innocent members of the public who are interested in registering as an ‘Amazon Easy Store’.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>40. It is averred that the Rogue Defendants reach out to innocent and gullible members of the public who are interested in registering as an ‘Amazon Easy Store’ and swindle money from them on the pretext that such monies are being collected as part of the registration process for setting up an ‘Amazon Easy Store’. Evidently the Rogue Defendants are attempting to lure unsuspecting members under the false pretext of offering to register them as an ‘Amazon Easy Store’, in the name of the Plaintiffs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">41. It is further averred that the entire modus operandi of the Rogue Defendants ex-facie demonstrates that their intention is to deliberately mislead the general public and scam monies under the false pretext of offering registration as an ‘Amazon Easy Store’. It is also averred that in addition to the above, there is great likelihood that the actual and potential </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">victims will be further induced into believing that the Rogue Defendants have a connection and/or association with the Plaintiffs and/or that the aforesaid fraudulent activity is being perpetuated by the Plaintiffs. Plaintiffs have come across several messages, videos, and tweets from the Plaintiffs’ customers, as to how the Rogue Defendants are reaching out to them through several modes, including but not restricted to emails and post.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>42. It is averred that due to the very nature of the Internet, these Rogue Websites/Domain Names are accessible all across the world, including, in India, i.e., within the territorial jurisdiction of this Court. Thus, any such use by the Rogue Defendants amounts to infringement of the exclusive rights owned by the Plaintiffs within the purview of the Trademarks Act, 1999.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>43. It is averred that the Rogue Defendants have also grossly misrepresented to the public that they are connected with/affiliated to the Plaintiffs. The degree of misrepresentation is so high that Defendant No.1 website provides Plaintiff No.1’s address as its own. Therefore, in light of established precedent, it is evident that the Rogue Defendant are guilty of passing off their services as those of the Plaintiffs.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>44. It is averred that the brazen and unauthorized identical reproduction of ‘AMAZON’ logo and the identical reproduction of the look and feel of the Rogue Website of Defendant No.1 to that of the Plaintiff No.1’s Website Content, amounts to an infringement of the Plaintiffs’ Copyright.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>45. It is further averred that the activities of the Rogue Defendants will undoubtedly result in diminishing the distinctiveness of Plaintiffs’ Marks from serving their basic purpose, i.e., identifying Plaintiffs’ services as emanating from the Plaintiffs alone. Thus, the Rogue Defendants’ abovementioned activities are also resulting in dilution by blurring as well as tarnishment. Learned counsel draws the attention of the Court to various documents placed on record to substantiate the arguments made.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>46. I have heard the learned counsel for the Plaintiffs and also perused the documents on record including the home page of the Plaintiffs highlighting the copying of Plaintiff No.1’s website by the Rogue Defendants; website of the Rogue Defendants using the address of the Plaintiffs; screenshot of the emails received from one of the complainants and the actual money deposited by the said complainant; registration form, legal notice issued by the complainant to the Plaintiffs, etc.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>47. Having heard the learned counsel for the Plaintiffs, this Court is of the view that Plaintiffs have made out a prima facie case for grant of ex parte <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ad-interim injunction. Balance of convenience lies in favour of the Plaintiffs and they are likely to suffer irreparable harm in case the injunction, as prayed for, is not granted. Additionally, the activities of the Rogue Defendants are leading to a financial loss to the innocent and unsuspecting members of the public.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>48. Accordingly, Defendants No.1 to 3 and their owners, partners, proprietors, officers, servants, employees and all others in capacity of principal or agent acting, for and on their behalf or anyone claiming through, by or under them are restrained from using the mark “AMAZON”, “Amazon.in” etc. and/or any deceptive variants thereof, which is identical and/or similar to the Plaintiffs’ AMAZON marks and/or any marks stated in the plaint, in any manner, amounting to infringement of Plaintiffs’ trademarks, till the next date of hearing.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>49. Defendants No.1 to 3, their owners, partners, proprietors, officers, servants, employees, and all others in capacity of principal or agent acting for and on their behalf, or anyone claiming through, by or under them are further restrained from using the mark “AMAZON”, AMAZON logos (which is used by the Plaintiffs exclusively within the Indian territory) and/or any deceptive variant thereof, which is identical and/or similar to the Plaintiffs’ AMAZON marks in respect of domain name or any other manner amounting to passing off the Plaintiffs’ goods/services, till the next date of hearing.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">50. Defendants No.1 to 3, their owners, partners, proprietors, officers, servants, employees, and all others in capacity of principal or agent acting for and on their behalf, or anyone claiming through, by or under it, are also restrained from using identical and/or similar logos as that of the Plaintiffs’</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>copyright protected artwork for the Plaintiffs’ AMAZON logos, thereby infringing the Plaintiffs’ copyright in its artistic works and the content as captured on the Plaintiffs’ Website, till the next date of hearing.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>51. Defendants No.1 to 3, their owners, partners, proprietors, officers, servants, employees, and all others in capacity of principal or agent acting for and on their behalf, or anyone claiming through, by or under it, from, in any manner are also restrained from using directly or indirectly the Plaintiffs’ Marks or any other mark identical/deceptively similar to the Plaintiffs’ Marks, amounting to dilution or tarnishment, of the Plaintiffs’ trademarks, till the next date of hearing.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>52. Defendant No.4, is directed to suspend the fake accounts of Rogue Defendants (Facebook page available at https://www.facebook.com/Amazon-franchise-102180815731934/?ref=page internal and Instagram page of Defendant No.2 available at https://l.facebook.com/l.php?u=https%3A%2F%2Fwww.instagram.com%2F  pankaj0bisen%3Ffbclid%3DIwAR2B7kg0UCXfCfy1jE_qlwp1lovdxs5o9fp8FRrAZZ2UL1UA8G9FEizZyKg&h=AT1taTJrEl14iUuysMa0llJuqo41Pqg jlHRN9fiR4SF0NJBMF_Hgf1PkPzByRZ3nQ0I2aJkE8h8wyADwvwWaQy yNL1tf1rkv4BfVTw06DsB2-cxpCEtCbl-RFbFXevxoru55qQ) and provide IP addresses/other details of the users of the fake profiles/accounts/pages of the said Defendants’ platform, as identified by the Plaintiffs now and/or at any subsequent time.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>53. Defendants No.5 and 6, their owners, partners, proprietors, officers, servants, employees, and all others in capacity of principal or agent acting for and on their behalf, or anyone claiming through, by or under them are directed to freeze the bank accounts with Account Nos. 50100452149604  <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and 75662010010628 and provide the statement of accounts pertaining to the said account numbers as well as furnish on affidavit, the identity of the bank account holder and KYC details.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>54. Defendant No. 7, its owners, partners, proprietors, officers, managers, servants, employees, and all others in capacity of principal or agent acting for and on its behalf, or anyone claiming through, by or under them are directed to furnish on Affidavit, the KYC details of the beneficiary of the PayTM account holder in respect of transactions bearing reference numbers “203930943561”, “203314433268”, “203221153244” and “203227090489”, conducted using the said PayTM account.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>55. Defendant No. 8, their directors, partners, proprietors, officers, affiliates, servants, employees, and all others in capacity of principal or agent acting for and, on their behalf, or anyone claiming through, by or under it are directed to disclose details of the Registrant of Defendant No.1’s and Defendant No. 3’s website https://amazonbuys.in. and https://estoreamazon.in, and block access to the said websites.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>56. Defendants No. 9, 10, 12, 15 and 17, their directors, partners, proprietors, officers, affiliates, servants, employees, and all others in capacity of principal or agent acting for and, on their behalf, or anyone claiming through, by or under it are directed to disclose details of Defendants No. 1 to 3’s phone numbers, details of which have been furnished in a tabular form in paragraph 67 of the Plaint.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">57. Defendants No. 9-17, their directors, partners, proprietors, officers, affiliates, servants, employees, and all others in capacity of principal or agent acting for and, on their behalf, or anyone claiming through, by or under it are directed to block access to the website identified as websites of </span><span style=\"font-size: 12pt;\">the Rogue Defendants in the plaint.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>58. Defendants No. 18 (DoT) and 19 (MEITY) are directed to issue notifications calling upon the various internet and telecom service providers registered under it to block access to the various websites/Rogue Defendants identified by the Plaintiffs in the plaint.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>59. Plaintiffs shall comply with the provisions of Order 39 Rule 3 CPC. </b></span></p>', '8a99d5e57f8ef6c8c0ccd75a72d112ae.png', '6d314a3bb9faa61c999d1f01ac049fe4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-28', 1, '', '', '2022-06-27 20:19:13', '2022-06-28 19:05:09');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1880, 'I269BdqcMLbznTP814k5WvRUl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A relief of declaration of title to immovable property is implicit in a suit for recovery of possession of immovable property based on title. The plaintiff need not claim the relief of declaration of title. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Thomas Abraham Vs Philip Abraham.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>RSA 331 of 2005 decided on 24 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Babu.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The plaintiff and defendant are siblings. The plaintiff\r\nobtained the plaint ‘A’ schedule property measuring 11 cents under\r\nExt.A1 sale deed of 1972. The plaintiff obtained the plaint ‘B’ schedule\r\nproperty measuring 53 cents under Ext.A2 settlement deed of 1984.\r\nThe defendant also acquired 29 cents of property under Ext.A2\r\nsettlement deed executed by the father of the parties.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The plaintiff had been in possession and enjoyment of the\r\nentire plaint schedule properties. He had been working in Rajasthan. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Taking advantage of the fact that the plaintiff was not in station, the\r\ndefendant trespassed upon a portion of plaint ‘B’ schedule property and\r\nconstructed a building. The plaintiff intervened with the assistance of\r\nsome relatives and the properties were measured by the Taluk\r\nSurveyor and boundary stones were erected. The defendant uprooted\r\nthe boundary stones and trespassed upon a portion of the property\r\nmeasuring about 7.90 cents marked as BONPQRS in Ext.C1 plan. The\r\nplaintiff is entitled to recover that portion of the property from the\r\ndefendant after fixing the boundary separating the two properties. The\r\nplaintiff also prayed for a prohibitory injunction against the defendant.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n5. The defendant resisted the suit. The defendant acquired\r\ntitle over 29 cents of property as per Ext.A2 settlement deed. Boundary\r\nstones were erected at the time when the father of the parties executed\r\nthe settlement deed. Based on the settlement deed, he had no reason\r\nto trespass upon the property owned by the plaintiff. The allegation that\r\nhe uprooted the survey stones planted with the Taluk Surveyor\'s\r\nassistance is incorrect. He had not constructed the compound wall\r\nencroaching upon the plaintiff\'s property. In fact, the plaintiff\r\ndemolished a portion of the boundary wall separating the properties.\r\nThe defendant is entitled to a sum of Rs.5,000/- as damages from the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">plaintiff. The defendant set up a counterclaim seeking to realise\r\ndamages from the plaintiff.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. The plaintiff and defendant, who are siblings, acquired\r\nproperties as per settlement deed No.3503/1984 (Ext.A2) in old Survey\r\nNos.582/11, 582/8B, and 582/10. The plaintiff also acquired the\r\nproperty in Survey No.582/10 as per sale deed No.1411/1972 (Ext.A1).\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Plaint ‘A’ schedule property is 11 cents of land in Survey\r\nNo.582/10 of Ezhamkulam Village. The plaintiff acquired title to this\r\nproperty as per Ext.A1 sale deed from a stranger. The plaintiff obtained\r\ntitle to 53 cents of land in Survey No.582/11 as per Ext.A2 settlement\r\ndeed. This property is described in the plaint as ‘B’ schedule. By virtue\r\nof Ext.A2 settlement deed, the defendant obtained 29 cents of land in\r\nSurvey Nos.582/10, 582/8B, and 582/11 of Ezhamkulam Village. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>14. There is no challenge on the right and possession of the\r\nplaintiff over ‘A’ schedule property. Going by the pleadings of the\r\nparties, the defendant has not set up a challenge to the title of the\r\nplaintiff over ‘A’ or ‘B’ schedule properties. No questions of fact and law\r\nrelating to title were placed before the trial Court as well as the First\r\nAppellate Court for decision.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>15. The first challenge of the appellant/defendant is that a\r\nsuit for recovery of possession and a consequential injunction will not lie\r\nin the absence of relief of declaration. The learned Senior Counsel\r\nappearing for the respondent Sri.S.V.Balakrishna Iyer submitted that\r\nthe relief of declaration as provided in Section 34 of the Specific Relief\r\nAct is a discretionary relief, and it is not a matter of absolute right to\r\nobtain a declaratory decree. The learned Senior Counsel contended that\r\nonly in cases where the “essentials” referred to in Section 34 are set\r\nup, the plaintiff might pray for relief of declaration. The learned Senior\r\nCounsel submitted that in the facts of the present case, the plaintiff was\r\nnot required to seek relief of declaration of title in respect of the\r\nproperty involved </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>One of the essentials to seeking relief of declaration is that the\r\ndefendant has denied the legal character or any right to any property or\r\nis interested in denying that character or right of the plaintiff.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>16. The learned Senior Counsel contended that as the\r\ndefendant has not denied or is not interested in denying the title of the\r\nplaintiff over the plaint schedule properties, the plaintiff need not seek\r\nthe relief of declaration. The matter involves no complicated questions\r\nof fact and law related to the title. No cloud is cast on the title of the\r\nplaintiff over the plaint schedule properties. Where the plaintiff’s title is\r\nnot in dispute or under a cloud, but he is out of possession, he has to\r\nsue for possession with a consequential injunction. In such a situation,\r\nhe need not seek relief of declaration. This view is fortified by the\r\ndecision of the Apex Court in Anathula Sudhakar v. P.Buchi Reddy\r\n(Dead) by Lrs. and Ors. (AIR 2008 SC 2033).</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>17. A relief of declaration of title to immovable property is\r\nimplicit in a suit for recovery of possession of immovable property\r\nbased on title inasmuch as without establishing title to the property, no\r\ndecree for the relief of possession can be passed. Thus, merely because\r\na plaintiff did not specifically claim the relief of declaration of title, he\r\ncannot be denied the relief of possession.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. Therefore, the first contention of the learned counsel\r\nfor the appellant/defendant that a suit for recovery of possession will\r\nnot lie without relief for declaration would not sustain.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. The dispute in the matter centres around the\r\nidentification of the properties. The defendant pleaded that as the\r\nresurvey has become final, the properties are to be identified based on\r\nthe re-survey plan finalised as per the relevant provisions of the Survey\r\nand Boundaries Act, 1961.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. Per contra, the learned Senior Counsel appearing for the\r\nrespondent/plaintiff contended that the decision of the re-survey\r\nauthorities would not affect the title acquired by the parties as per the\r\ntitle deeds in question, and therefore, the identification of the properties\r\nis to be made based on the relevant title deeds.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. The properties acquired by the parties were specifically\r\nidentified in Ext.C1, the plan prepared based on the title deeds and the\r\nold plan. In Ext.C1 KLNHIJ plot is the plaint ‘A’ schedule property that\r\nthe plaintiff acquired as per Ext.A1 sale deed, and the Commissioner\r\nidentified ABONLK as the 53 cents of the property comprised in\r\nSy.No.582/11 obtained by the plaintiff as per Ext.A2 settlement deed.\r\nAs per Ext.A2 settlement deed, the defendant was allotted 4 cents of\r\nproperty in Sy.No.582/10, 5 cents of property in Sy.No.582/11, and 20\r\ncents of property in Sy.No.582/8B (29 cents). The Commissioner\r\nidentified 4 cents of property in Sy.No.582/10 allotted to the defendant\r\nas NOFGH, and 5 cents of property in Sy.No.582/11 as BCEFO. The\r\nplot CDE measuring 12 cents of land in Sy.No.582/8B is also identified\r\nas the property acquired by the defendant as per Ext.A2. There is a\r\nshortage in the extent of land as against 20 cents as per the title deed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. The re-survey is done as per the provisions of the\r\nSurvey and Boundaries Act, 1961 (hereinafter referred to as `the Act’).\r\nAs per the Act, survey includes all operations incidental to the\r\ndetermination, measurement, and record of a boundary or boundaries\r\nor any part of a boundary and includes a resurvey. Chapter II of the\r\nAct deals with survey of lands. The various circumstances under which\r\nthe Government may direct survey of lands are dealt with in Chapter II.\r\nAs per Section 9 of the Act, a survey officer appointed under Section 3 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the Act shall have the power to determine and record as undisputed\r\nany boundary in respect of which no dispute is brought to his notice. As\r\nper Section 10 of the Act, where a boundary is disputed, the survey\r\nofficer shall, after making such inquiries as he considers necessary,\r\ndetermine the boundary and record it in accordance with his decision\r\nwith reasons in writing for arriving at that decision. Therefore,\r\nessentially, the Act empowers the survey authorities to determine the\r\nboundaries of different sub-divisions. Entries in resurvey records are\r\npredominantly based on possession as of now. They would be worthless\r\nwhen the question is whether the title is vested with the plaintiff or\r\ndefendant. It is not for the survey authorities to decide the question of\r\nthe title based on resurvey records. The title and possession are\r\nmatters to be decided by a Civil Court. Merely because a portion of the\r\nplaintiff’s property is shown in the resurvey records as with defendant’s\r\nsurvey number, it cannot lead to an inference that possession was with\r\nthe defendant. The changes in the extent of the property in the\r\nresurvey would not confer title.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. The decision of the survey authorities shall not affect\r\nthe right and title of the properties acquired by a party as per a valid\r\ntitle deed. The survey authorities are not endowed to adjudicate the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">title of the immovable property. The right and title to property have to\r\nbe determined not with reference to the survey demarcation but based\r\non other cogent materials, the primary of which is the title deed. The\r\nrecord of the survey result shall be conclusive proof that the boundaries\r\nwere determined and recorded therein correctly.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. The learned counsel for the appellant/defendant\r\nvehemently contended that as the extent of the property identified by\r\nthe Commissioner, as acquired by the defendant in Sy.No.582/8B (CDE\r\nplot in Ext.C1), is only 12 cents, the necessary inference is that the\r\nbalance property entitled to the defendant has been included in\r\nBSRQPNO portion allotted to the plaintiff. There is a shortage of 7.9\r\ncents of property with reference to Ext.A2 title deed in the property in\r\nSy.No.582/8B allotted to the defendant. It is relevant to note that a\r\ncomparison of the settled old survey plan (Ext.A6) with Ext.C1 plan\r\nmakes it evident that the DE line in Ext.C1 should have joined the point\r\n‘F’. But, it joined 10.6 metres below it. That might be a possibility for\r\nthe discrepancy in the extent. The extent of the properties identified as\r\nper Ext.C2 re-survey plan also deserves consideration. Re-survey\r\nNo.267/1 in Ext.C2 takes in the entire properties acquired by the\r\nplaintiff as per Exts.A1 and A2. The plaintiff is entitled to 64 cents of\r\nland as per the title deeds. AKJIL portion was admittedly set apart for\r\nthe road on the west. The extent, as per the re-survey plan, in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">plaintiff\'s name is only 21 Ares (51.87 cents). Whereas, re-survey\r\nNo.267/9, the sub-division allotted to the defendant, has an extent of\r\n12.40 Ares (30.628 cents). Therefore, the defendant\'s contention that\r\nproperty in Sy.No.582/8B was included in the portion allotted to the\r\nplaintiff in Ext.C1 will not stand. The portion NPQRSBO takes only the\r\nproperty allotted to the plaintiff as per the title deed. The First Appellate\r\nCourt has meticulously analyzed the pleadings, and evidence and drawn\r\nnecessary inferences and conclusions in accordance with law. The\r\nfindings of the First Appellate Court require no interference. The\r\nsubstantial questions of law are answered accordingly against the\r\nappellant.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>The appeal fails, and it is dismissed. Parties are directed to\r\nbear their respective costs. Interlocutory applications pending, if any,\r\nshall stand closed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e67e40e8e0e6e7898fa3b0879dcbb5a3.jpeg', '3f8718362358be9db5a55c3f9f0aaf2e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-29', 1, '', '', '2022-06-28 20:24:19', '2022-06-29 10:21:11'),
(1881, 'fTRRuEieWw7ezose0qCvx3fSD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Court can order attachment of the property secured under SARFAESI Act since the bar to create any lien, charge or liability on the property, after receipt of a notice under Section 13(2) of the Act, is only against the debtor. Kerala High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Axis Bank Vs Hilal Ahmed Bhat and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>F.A.O. 29 of 2019 decided on 21 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Anil K. Narendran and Justice P.G. Ajithkumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The appellant filed E.A.No.118 of 2018 in E.P.No.30\r\nof 2017 in O.S.No.32 of 2016 before the Sub Court,\r\nOttapalam, seeking to lift the attachment over the petition\r\nscheduled property. The E.A. was filled invoking the provision\r\nof Order XXI, Rule 58 and Section 151 of the Code,\r\ncontending that the order of attachment obtained by the 1st\r\nrespondent in respect of the said property on the ground that\r\nhe was entitled to realise from the said property the debt due\r\nto him from the 2nd respondent in O.S.No.32 of 2016 is not\r\nsustainable in law, since the appellant is a secured creditor.\r\nThe 2nd respondent while availing a cash credit facility of\r\nRs.45,00,000/-, he created an equitable mortgage in favour of\r\nthe appellant by deposit of title deed. The said loan amount\r\nhas become a non-performing asset, and therefore, the\r\nappellant initiated proceedings against the secured asset as <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">per the provisions of the Securitisation and Reconstruction of\r\nFinancial Assets and Enforcement of Security Interest Act,\r\n2002 (SARFAESI Act). It is contended that in that\r\ncircumstance, the court should not have attached the property\r\nand the appellant is entitled to get the attachment vacated.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. The 1st respondent resisted the application by filing\r\nan objection. It was contended that the 2nd respondent\r\ndefaulted the payment of the loan due to the appellant is\r\nincorrect. O.S.No.32 of 2016 was filed by him for realisation of\r\nthe amount legally due to him. It is a bona fide litigation. The\r\nattachment of the property in the suit was effected on\r\n28.03.2016. Only on 14.07.2017, the appellant took over\r\npossession of the property. The appellant has no absolute title\r\nto the property and therefore has no right to object the\r\nattachment. Even if the appellant has a right as a secured\r\ncreditor, the 1st respondent has every right to proceed against\r\nthe property subject to that right. O.P.No.1034 of 2018 filed\r\nby the appellant before this Court claiming the same right was\r\ndismissed. Accordingly, the 1st respondent sought to dismiss </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the application. The 2nd respondent remained ex parte.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The learned Counsel appearing for the appellant\r\nwould submit that in the light of provisions of Section 26E of\r\nthe SARFAESI Act, the appellant being the secured creditor,\r\nhas the priority over all other debts; even the debts due to\r\nthe Government to realise the debt from the secured interest.\r\nIn the light of such priority, the Sub Court, Ottapalam should\r\nnot have proceeded against the property. The learned counsel\r\nwould contend that the secured creditor in exercise of its\r\nprioritised charge over the property has the first right for\r\nrecovery and therefore any step taken by the court against\r\nthe property can be only in respect of the remainder, if any, of\r\nthe assets realised by the appellant in a proceedings under\r\nSection 13 of the SARFAESI Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. In so far as the right of a secured creditor to have\r\na priority over all other debts, including all revenue taxes,\r\ncesses and other rates payable to the Central or the State\r\nGovernment or local authority by virtue of the provision of the\r\nSection 26E of the SARFAESI Act and Section 31B of the\r\nRecovery of Debts and Bankruptcy Act, 1993, there is no\r\nscope for a debate. This Court in Travancore Devaswom\r\nBoard v. Local Fund Audit [2020 (3) KLT 296] and a Full\r\nBench of the Madras High Court in Assistant Commissioner\r\n(CT) v. Indian Overseas Bank [2017 (1) KLT SN 86] held\r\nthat the right of the secured creditor to realise the debt by\r\nsale of the security interest would take priority over all dues,\r\nincluding that in favour of the Government.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The Sub Court, in the impugned order, has in fact\r\naccepted the said position while observing that “the petitioner\r\nbeing a mortgagee will get the first charge over the property\r\nto realise the mortgage money”. The claim of the appellant is\r\nbased on the contention that in the light of the priority of the\r\nsecured creditor over all other debts, it has the right to first\r\nproceed against the property before any other creditor can\r\nhave. On that premise, the appellant would contend that the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">attachment effected by the Court on 28.03.2016, which was\r\nafter the creation of the mortgage in favour of the appellant,\r\nwould not sustain in law and liable to be lifted. One of the\r\ncontentions raised by the appellant in that context is that the\r\n2\r\nnd respondent-mortgagor was bound to keep the schedule\r\nproperties without any other lien, charge or liability until he\r\nrepays the entire secured liability and gets the property\r\nreleased from the charge. The tenor of the said contention is\r\nthat as long as the secured creditor realises the debt, either\r\nthe mortgagor or any of his creditor should not proceed\r\nagainst the secured asset in any manner; even a court cannot\r\nhave the right to proceed against such a property.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. Section 13(2) of the SARFAESI Act empowers a\r\nsecured creditor in a case where the secured debts is\r\nclassified as a non-performing asset to demand by a notice in\r\nwriting to discharge the liability of the debtor in full. If the\r\ndebtor does not oblige the demand within the stipulated time,\r\nthe secured creditor can proceed under Section 13(4) and\r\nresort to one or more of the measures mentioned therein to\r\nrecover his secured debt. The measures provided for are,-\r\ntake over possession of secured assets, take over the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">management of the business of the borrower, appoint a\r\nmanager, etc. Once the possession is taken over, the secured\r\ncreditor may initiate steps for realisation of debt by having\r\nrecourse to lease, assignment or sale of the secured asset.\r\nThe mortgagor-debtor still has the right to pay the entire debt\r\nand get the secured assets released from the liability any time\r\nbefore the date of publication of notice for public auction\r\nunder Section 13(8) of the SARFAESI Act. If the secured\r\ncreditor after taking over possession of the property as\r\nprovided in Section 13(4) of the Act, and sells it after\r\ncomplying with the conditions thereof, the purchaser gets title\r\nto the property free of all encumbrances as if it has been\r\ntransferred by its owner, by virtue of the provisions of Section\r\n13(6) of the SARFAESI Act.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. A similar question was considered by the Apex\r\nCourt in Shakeena and others v. Bank of India and\r\nothers [2019 (11) SCALE 59]. In that case, the secured\r\ncreditor has issued a sale certificate in favour of the auction\r\npurchaser and thereafter the debtor made payment of the\r\namount, which was sufficient to satisfy the debt due to the\r\nsecured creditor. The registration of the sale certificate was\r\ntaken thereafter and the purchaser had sold the property to a\r\nthird party also.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. The law laid down in the aforesaid decision is to the\r\neffect that once sale is confirmed as per the provisions of\r\nSection 13(8) of the Act, the purchaser would get title to the\r\nproperty free of all encumbrances and any attachment upon\r\nthe property will not have any consequence thereafter. The\r\nprinciple that emanates from the aforesaid decisions is that an\r\nattachment of the secured asset after creation of a mortgage\r\nin favour of the secured creditor could be effaced once the\r\nsale is confirmed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. In State Bank of Bikaner & Jaipur v. National\r\nIron & Steel Rolling Corporation and others [(1995) 2\r\nSCC 19], the Apex Court considered the priority of the debt\r\ndue to the State, vis-a-vis, a mortgage debt. The contention\r\nraised on behalf of the bank was that there was already a\r\nmortgage when the statutory first charge came into existence\r\nand therefore the debt due to the mortgagee has the priority.\r\nThe Apex Court, after referring to the provisions of Rajasthan\r\nSales Tax Act, 1954, held that where a mortgage is created in\r\nrespect of any property, an interest in the property is carved\r\nout in favour of the mortgagee. The mortgagor is entitled to\r\nredeem his property on payment of the redemption price.\r\nThat does not however, mean that the property ceases to be\r\nproperty of the mortgagor. The title of the property remains\r\nwith the mortgagor. In the light of the said position of law, the\r\nApex Court further held that when a statutory first charge is\r\ncreated on the property, the properties subjected to the first <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">charge is the entire property and the interest of the\r\nmortgagee is not excluded from the first charge. Accordingly,\r\nthe contention of the bank was negatived. The said position of\r\nlaw has given way to the provisions of Section 26E of the\r\nSARFAESI Act, which was brought into the statute by the\r\namendment with effect from 01.06.2016.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. Relying on the said observations, the learned\r\nCounsel for the appellant would canvas for the position that\r\nthe secured creditor has not only the priority to receive the\r\ndebt due to it over all others, including Government, but also\r\nthe right to first sell the property. On that premises, the\r\nlearned Counsel contended that the attachment made by the\r\nSub Court, Ottappalam, is liable to be lifted. The precise\r\ncontention raised by the appellant on that aspect as stated in\r\nits petition filed before the Sub Court is that the 2nd\r\nrespondent-mortgagor should have kept the schedule\r\nproperties without any other lien, charge or liabilities, all time\r\nafter creation of the security interest.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. Section 35 of the SARFAESI Act deals with\r\noverriding effect for the provisions of the Act above all other\r\nlaws for the time being in force. But that overriding effect is in\r\nregard to the inconsistent provisions alone. In that view of the\r\nmatter, it is not able to accept the contention of the learned\r\ncounsel for the appellant that once a security interest is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">created, the property cannot be subjected to any other\r\nliability, either voluntary or involuntary. The position of law is\r\nthat once the process of sale of a secured asset interest as\r\nprovided in Section 13(4) of the SARFAESI Act is\r\ncontemplated, all liabilities upon the property, including an\r\nattachment by a court, would extinguish. It does not mean\r\nthat a civil court loses its jurisdiction to attach a property in\r\nrespect of which a security interest has been created in favour\r\nof a bank or a financial institution.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20. In State Bank of India [2019 (5) KHC 330] it\r\nwas observed that the concept of \'First Charge\' and \'debt\r\nbeing paid in priority\' are fraternal twin provisions which\r\nvirtually means the same - both giving the holder such rights,\r\nthe benefit of selling the property and recovering their dues\r\nbefore any other. That observation cannot be understood as\r\nonce a property is subjected to mortgage thereby became a\r\nsecurity interest as defined in Section 2(zd) of the SARFAESI\r\nAct, no civil court can proceed against the same. The bar to\r\ncreate any lien, charge or liability on the property, after\r\nreceipt of a notice under Section 13(2) of the Act, is only\r\nagainst the debtor, and not applicable to a civil court. Of </span></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">course, despite there having an attachment by a civil court,\r\nthe right of the secured creditor or his authorised\r\nrepresentative to recourse to Section 13(4) of the SARFAESI\r\nAct, including sale of the security interest, is not affected.\r\nOnce sale is confirmed, the effect of the attachment over the\r\nsame by the civil court will extinguish also. We hasten to add\r\nthat equity of redemption available to the mortgagor-debtor\r\ncan certainly be attached and sold by a civil court as long as\r\nhis right to pay off under the provisions of Section 13(8) of\r\nthe SARFAESI Act subsists. In the event of sale by the civil\r\ncourt before such time, the auction purchaser, who steps into\r\nthe shoes of the mortgagor, shall have the right of redemption\r\nas regulated by Section 13(8) of the SARFAESI Act.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>In view of what are stated above, we hold that the court\r\nbelow rightly had rejected the claim of the appellant. Hence,\r\nthis appeal is devoid of any merit and is therefore dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5f34f2d4df0b63522dd0c722655278e0.jpeg', '953f431b2b50a39d8cad682577112ab1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-29', 1, '', '', '2022-06-28 20:34:41', '2022-06-29 06:33:55');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1890, 'p3TVqnO7dsDfyniMWedikjTNh', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Universities are not the notional extensions of the government departments, nor their vassals. Govt should stop poking nose in the affairs of the Universities. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The University of Agricultural Sciences Vs Digambarappa and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 100263 of 2022 decided on 24 June 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Krishna S. Dixit and Justice P. Krishna Bhat.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">3. FOUNDATIONAL FACTS OF THE CASE:-</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">a)<span style=\"white-space: pre;\">	</span>Petitioner had knocked at the doors of Writ Court for assailing the placement of 3rd respondent in the post of Director of Education and his own placement in the post of Dean. The sole factor for such a claim was that he was the senior most in the cadre of Professor. For this petitioner heavily banked upon the Government Order dated 14.11.2019 and Chancellor’s instructions dated 28.01.2022. Thus, his essential grievance is that he being the senior most and 3rd respondent admittedly being junior to him, petitioner ought to have been given the post of Director and the 3rd respondent could have been made the Dean.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">b)<span style=\"white-space: pre;\">	</span>The University and the 3rd respondent had opposed the Writ Petition mainly contending that the appointment in question is purely temporary and for a period of only six months; such appointments are to be made on rotation basis; petitioner was accordingly appointed as a Director earlier and therefore now the 3rd respondent is given that position; petitioner cannot have any grievance since he is given the post of Dean, which is equivalent to that of Director.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">c)<span style=\"white-space: pre;\">	</span>The subject letter dated 14.11.2019 issued by the Under Secretary in the Department of Agriculture, is not a Government Order. The Chancellor’s letter dated 28.01.2022 only instructs adherence to the extant norms. Mr. Jagadish Patil, learned advocate appearing for the 3rd respondent in the Writ Petition submits that the writ petitioner has not suffered any legal injury to have maintained the writ petition. Learned GA made his submissions  on  the  position  of  law  maintaining equi-distance from the warring private parties.</font><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">4. Having heard the learned counsel for the parties and having perused the appeal papers, we are inclined to grant indulgence in the matter for the following reasons:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">a)<span style=\"white-space: pre;\">	</span>Section 24 of the Universities of Agricultural Sciences Act, 2009 enlists Officers of the University which, inter alia, comprise of Directors & Deans. Section 30 empowers the Vice-Chancellor to appoint officers specified in clauses (iv) to (ix) of Section 24.</font><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\">b)<span style=\"white-space: pre;\">	</span>The substantive part in Section 30 provides for making regular appointment, whereas the proviso provides for making appointment to the said posts as a ‘temporary </font></span><font face=\"Calibri, sans-serif\">measure’, presumably because regular appointment takes long time and that posts in question cannot be kept vacant for long. It is significant to note that this Section speaks of appointment to specific posts; it specifies the Appointing Authority i.e., the Vice-Chancellor; provision to the section, however, specifies six months as the tenure of appointment; it also states that such appointments are by way of temporary measure. It is also significant to note that the Vice-Chancellor is treated as ‘Conscience Keeper’ of the University concerned, said the Apex Court in Marathawada University Vs. Seshrao Balwantrao Chavan, AIR 1989 SC 1582. In the light of all this, the regularity of the impugned proceedings has to be assumed and therefore, the writ petitioner has to make out a very strong case for interference, this being not a case of regular appointment.</font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">c)<span style=\"white-space: pre;\">	</span>The concept of ad hoc appointment is not alien to Service Jurisprudence; it is a common knowledge that civil servants are appointed on incharge or independent charge basis, in the posts only as a temporary measure, under Rule 32 of KCSRs. In such cases, ordinarily, the seniority does not much factor.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">d)<span style=\"white-space: pre;\">	</span>Ordinarily seniority has a pivotal role, while making promotions on regular & substantive basis. However, when it comes to making ad hoc appointments as the ones at hands, ordinarily seniority takes the backseat. This is not to say that the authority in making ad hoc placement can choose whomsoever it wants; even there the requirement of fairness & reasonableness cannot be dispensed with. The proviso to Section 30 does not say anything about seniority whilst making appointment as a temporary measure. The appointment process has to be normative since it is done in the exercise of statutory power, is true. There is some discretion that avails to the appointing authority even u/S 30 of the Act also, cannot be disputed. However, any discretion has to be exercised in accordance with the rules of Reason & Justice said Lord Halsbury in SHARP VS. WAKEFIELD (1891) AC 173.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">h)<span style=\"white-space: pre;\">	</span>Universities are not the notional extensions of the government departments, nor their vassals. They are autonomous bodies and therefore their autonomy should be respected. The Secretaries of the Government Departments cannot interfere in the affairs of Universities in the absence of statutory power and the justification for its exercise, both of which are absent in the case at hands.<br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">i) ..... A perusal of the letter shows that a direction is issued by the Chancellor to the University that in making appointment to posts of the kind, the norms laid down in Rules, Statutes & Regulations should be strictly followed. It has not said anything about seniority. On the other hand the Board of Management has consciously prescribed the norm of rotation, as the mode of appointment. The very idea of ‘appointment by rotation’ excludes the notion of seniority. The Vice-Chancellor in issuing the impugned appointment orders has followed the extant norms. Even this aspect of the matter has escaped due attention of the learned Single Judge. Thus, there is an added error apparent on the face of the impugned judgment.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">j)<span style=\"white-space: pre;\">	</span>Learned counsel for the Writ petitioner seeks to justify the impugned Judgment contending that the University orders that are quashed by the learned Single Judge suffered from the infirmity of discrimination inasmuch as only his client was singled out for a step motherly treatment, all others having been left untouched even when he had a very short stint of service. We fail to understand as to how others being not displaced would come to the rescue of petitioner in matters like this, which involve a host of factors that fall outside judicial evaluation. It is not that the petitioner has been left high & dry. Admittedly, he too has been given the post of Dean. The contention that the post of Dean is comparatively a bit lower compared to that of Director, does not merit deeper examination, at our hands given the fact that both the posts carry same pay scale & emoluments. Even the learned Single Judge treats the posts enlisted in Clauses (iv)  to  (ix)  of  Section  24  as  constituting  one  common cadre. Clauses 1 & 4 of Section 31 Read with Clauses (iv) </font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">to (ix) of Section 24 of the Act lend some credence to this view. If the University states that posts are equal, the one who questions it has to make out a strong case to substantiate the contra. That being the position, no prejudice is shown to have been caused to the Writ petitioner by virtue of impugned orders of the University.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><span style=\"font-weight: bolder;\">In the above circumstances, these appeals succeed. The impugned Judgment of the learned Single Judge is set at naught and as a consequence the University orders of appointment that were quashed by the said Judgment are hereby resurrected.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><span style=\"font-weight: bolder;\">Costs made easy.</span></span></p>', '009da9748ea7abc8a72c974f876fa3e1.JPG', '14777f96bd10cb347cd0e8729102b075.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-01', 1, '', '', '2022-07-01 01:58:17', '2022-07-01 06:27:11'),
(1883, 'p89aV1P1wXERsdpdOVjxALAX8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land acquisition compensation must be paid in the event of any enhancement granted to another land looser under the same notification. Karnataka High Court deprecates delay in considering applications of landowners. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Putani Ramesh Vs The Principal Secretary Department of Revenue Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 11606 of 2022 decided on 15 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The petitioner claims to be the owner of the land in Survey No.53/3 measuring 15 guntas situated at Dummigere Village, Shanthigrama Hobli, Hassan Taluk which has been acquired for the purpose of Kaamasamudra Lift Irrigation Project. The compensation which had been granted had been enhanced in respect of another land looser in LAC No.74/2016 vide judgment dated 01.02.2017. Hence, the petitioner submitted an application in terms of Annexure-E on 23.03.2017. Since no action was taken thereon, the petitioner submitted a representation on 08.03.2022 as per Annexure-H, despite which no action has been taken and the compensation is not released in favour of the petitioner, as such the petitioner is before this Court seeking for the aforesaid reliefs. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. It is rather shocking that an application submitted in the year 2017 has not been considered by the respondents. It is required that such applications are considered at the earliest and necessary compensation be released to the land looser in the event of any enhancement granted to another land looser under the same notification.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Insofar as the present case is concerned, respondent No.2 is directed to consider the application at Annexure-E and the representation at Annexure-H within a period of eight weeks from the date of receipt of a copy of this order. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. The petition stands disposed of.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '52bcf5e1eccfbcae4f031c02d524f339.jpeg', 'c1152808c233483a2aca02bffa5e190c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-01', 1, '', '', '2022-06-29 17:31:47', '2022-07-01 14:01:25'),
(1884, '60EQaB11g2ZHx0yJHWCzLkTHu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Set up e-office system and information technology tools to monitor applications/representations and to dispose them at the earliest. Karnataka High Court directs BDA. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Arunkumar D Vs The Bangalore Development Authority.  <o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 4160 of 2021 decided on 14 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The petitioner was allotted a site bearing No.45, 4th H Block, Banashankari further extension 6th stage, BDA layout measuring 9 x 12 meters through a letter dated 07.02.2004, as regards which the petitioner has made payment of entire sale consideration and sale deed also came to be executed in favour of the petitioner on 15.02.2005. subsequent thereto, it came to be realized that the said site was situate in forest land being part of Thurahalli forest Reserve and as such the petitioner could not make use of said site.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Thereafter, the petitioner has given various representations to respondent/BDA to allot alternate site, which was not acted by the respondent. The petitioner having no other alternative remedy is before this Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. It is rather shocking that BDA has acquired land, which is designated as \'forest\' and has formed sites and allotted sites to various innocent applicants like petitioner by collecting monies as also executed sale deeds. Thereafter, BDA claimed that it was by way of mistake that the site was formed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. It is only on account of mistake by the BDA and its officials that the petitioner has suffered, the Commissioner BDA is directed to look into the matter and take necessary action against all the concerned persons who have formed sites in the forest area. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Be that as it may, when the same was brought to the notice of the BDA by way of representations made by the petitioner way back on 01.07.2020 vide Annexure- M-series, it was but required for the BDA to take action on the same and redress the grievance of the petitioner. Which has not been done, which is a complete dereliction of duty on the part of the concerned authorities. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. Any representation and/or application submitted to any authority is required to be acted upon and orders passed thereon within a reasonable period of time either accepting or rejecting the application in accordance with the applicable law. If no order is passed by the concerned authorities, the same would amount to dereliction of duty, requiring initiation of disciplinary proceedings. The Commissioner BDA is also directed to enquire into the matter as regards persons who are responsible for not taking a decision on the representation and having kept it pending for over 2 years, and take necessary action against them. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The Commissioner in association with the Principal secretary e-Governance Department is also further directed to set up a system of monitoring applications and representation received by the BDA so that status of said representation and/or application can be ascertained and the persons responsible for delay be identified and action taken against them. In this connection necessary use of information technology tools which are available is also required to be made use of by the BDA including implementation of e-office software for monitoring receipt of application and/or representation and the actions taken thereon. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. A status report regarding above to be submitted by the respondent/BDA within a period of four weeks’ from today i.e., on or before 19.07.2022. Learned AGA is directed to bring to the notice of the Principal Secretary e-governance department of the above observations.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Respondent/BDA is directed to consider representation of petitioner vide Annexure-M series within a period of four weeks’ from today and allot alternate site preferably within the said layout in the said period.</b><br></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1586d594df641f79b838c4843d6f5fb8.jpeg', '8ee3b38f0c17be35cb93c191dcea1ad4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-01', 1, '', '', '2022-06-29 17:43:25', '2022-07-01 10:26:28'),
(1887, 'Jy4rDr9s2lZSwMbMYr8q4dFrE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Advocate representing a party has a right to be physically present in a Remote Point when the evidence of his client is being recorded. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K. Lakshmaiah Reddy Vs V. Anil Reddy and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 10926 of 2022 decided on 24 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sachin Shankar Magadum.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The present petitioner is a resident of Michigan, USA and is aged about 87 years and is suffering from various health issues. Therefore, the petitioner filed applications in I.A.Nos.27 and 28 under Rule 6 of the Video Conferencing Rules and also application in I.A.No.36 under Order 18 Rule 16 of CPC to examine the petitioner immediately. The said applications were allowed by the Trial Court thereby permitting the present petitioner/defendant No.2 and defendant No.5 to record their evidence through Video Conference. The Trial Court accordingly with the consent of parties to the suit, fixed the date of recording evidence through video conferencing on 06.06.2022.  The petitioner filed memo on 25.05.2022 requesting the Court to make further e-mail correspondence towards logistic support and to inform the remote point coordinator to issue 5 entry passes to enable the petitioner to have assistance of his Advocate and also attendants. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The contesting defendants filed statement of objections to the said memo. The learned Judge vide impugned order at Annexure-A has refused to permit the petitioner\'s Advocate to be present at the remote point while recording evidence of defendant No.2. It is this order which is under challenge. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Learned counsel appearing for the petitioner reiterating the grounds has raised the following questions:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>\"1) Whether an advocate representing a party who has been tendered in evidence from a Remote point can be excluded from the remote point at the time of recording evidence of the witness?</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>2)<span style=\"white-space: pre;\">	</span>Whether a party to the proceedings could be excluded from personal presence at the remote point where evidence of a witness in the case is being recorded at the Remote Point?</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><i><font face=\"Calibri, sans-serif\"><b>3)<span style=\"white-space: pre;\">	</span>What order or direction is required to be issued?\"</b></font></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><i><font face=\"Calibri, sans-serif\"><b><br></b></font></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. Learned counsel would vehemently argue and contend that Advocate plays a vital role in dispensation of justice.  Referring to the principles of the Hon\'ble Apex Court in the case of Shrimati Jamilabai Abdul Kadar vs. Shankarlal Gulabchand and Others, he would point out that the Hon\'ble Apex Court while rendering the above said judgment was of the view that the lawyer appearing in the Court is a class by himself and to compare him with an ordinary agent may be to lose sight of the lawyer as engineer of the rule of law in society. Referring to the judgment, he would  also  point  out  that  the  observations  made  by  the Hon\'ble Apex Court indicating that legal profession is a para-public institution which deserves special confidence of and owes greater responsibility to the community at large than the ordinary run of agency. He would further contend that casting aspersions on an Advocate is undesirable. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. The second limb of arguments canvassed by the learned counsel for the petitioner is in regard to interpretation of provision of Video Conferencing Rules. Referring to the Rules, he would point out that said Rules do not specifically exclude the Advocate when evidence of witness is being recorded either at the Court point or at the remote point. Referring to Rule 2(iv) of the Rules, he would contend that the said definition is an inclusive definition and therefore, interpreting the above said Rule, learned counsel would contend that both physical and virtual court are presumed to be Court for all practical purposes. Therefore, referring to Rules 2(v) and 2(x) , he would contend that Court point and remote point together constitute a Court more particularly, when evidence is being recorded through video conference. It is in this background, he would counter the defence of the contesting respondents that the remote point has to be treated as a witness box or as an arguing counsels desk or as a commissioners desk. Therefore, he would contend that such an argument is too narrow a construction. He would submit that if a coordinator is entitled to be present at the remote point and if such an argument is accepted, then it would clearly indicate that even coordinator is deemed to be present in the witness box and therefore, he would submit that such an argument would only lead to an absurd construction. Learned counsel would further contend that remote point is part of a Court and therefore, he would contend that court point is a virtual court for the persons present at the remote point. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">7. To buttress his arguments, he has placed reliance on the decision rendered by the Delhi High Court in the case of Milano Impex Pvt. Ltd. vs. Egle Footwear Pvt. Ltd. and Ors. and has also referred to the judgment rendered by the Andhra Pradesh High Court in the case of Sirangai Shoba @ Shoba Munnuri vs. Sirangi Muralidhar Rao. Referring to these two judgments, he would contend that the Delhi High Court and Andhra Pradesh High Court have permitted the counsel to be present at the time of video conferencing at the remote point with the witness. Referring to the above two judgments, he would further contend that Advocate being an officer of the Court is entitled to be present at court point and remote point and it is his prerogative right and the same cannot be deprived. He would further contend that apprehension of defendants that the presence of Advocate, at the time of recording of evidence; there is possibility of witness being hoaxed or assisted to tackle the questions that would be posed in cross-examination is unfounded.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><i><font face=\"Calibri, sans-serif\"><b><br></b></font></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b>8. Referring to Entry 9 of Schedule -I of the Rule, he would bring to the notice of this Court that all the participants are required to look into the camera and in terms of Rule 8.9 of the Video Conferencing Rules, the Court is better placed to record the demeanor of the person being examined and sufficient safeguards are provided under Rule 8.6 of the said Rules.  Therefore, the question of prompting, tutoring, etc., are taken care of under the said Rules. He would further submit that Rule 2.12 which defines \'required person\' has been given an inclusive definition to include an Advocate or a party-in-person who intends to examine the witness. Referring to Order 18 Rules 10 and 11 of CPC, he would point out that an Advocate is required to be present at the time of examination-in-chief as well as cross-examination. Therefore, he would contend that his presence is absolutely necessary. On these set of grounds, he would contend that the impugned order under challenge is not at all sustainable as the learned Judge has erroneously applied Rule 8.11. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b>9. Learned counsel would strenuously argue and contend that Rule 8.11 does not apply to a party or duly authorised Advocate and therefore, would contend that learned Judge has apparently misconstrued the statutory rules and therefore, the impugned order has virtually taken away the right of the petitioner to have effective counseling at the time of recording evidence and therefore, he would contend that denying permission to the counsel on record to be present along with defendant No.2 infringes the constitutional right to have access to justice. He would conclude his arguments by contending that the respondents\' conduct is grossly unfair and the same has caused the petitioner huge expenditure as he had already made arrangements for recording evidence through video conferencing.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b>23. On perusal of Rule 14.1, it is clearly evident that the said Rule clearly contemplates and enables all Advocates, required persons, party-in-person either to remain physically or virtually present who are collectively referred to as participants. The only rider to the said sub-rule is that the participants are required to abide by the requirement set out in Schedule-I to the Rules. Therefore, the \"Required Person\" as defined under Rule 2(xii) would not necessarily mean that it is only the witness, who has to be examined, has to be physically present at the remote point. This Court is unable to understand as to how the counsel on record can be denied a right of audience at the remote point. Rule 14 clearly contemplates and permits all Advocates including required persons or party-in-person to be physically present at the remote point. Further, Rule 14.7 also gives discretion to the Court in a given case to permit the Advocate or any other participants that Court deems necessary at the remote point or Court point.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b>25. The definition \"Required Person\" under Rule 2(xii) coupled with Rule 8.11 authorizing a coordinator at the remote point to ensure that no person is present at the remote point cannot be read in isolation.  The above said relevant rules have to be conjointly read along with Rules 14.1 and 14.7. A witness is entitled for legal assistance even when he is cross-examined. However, at the time of cross-examination, his counsel cannot prompt or tutor him. Based on mere apprehension, the above said rules cannot be narrowly interpreted so as to exclude the counsel on record who is an integral part of legal system and plays a vital role in dispensation of justice. The Advocates admittedly play a role as an Officer of the Court.  His presence at the time of cross- examination of his witness is further more essential. It is a common fact that cross-examination often involves a battle of wits between cross-examiner and witness.  At times, Advocates cross-examining the witness may have to use guile to expose the unreliability of the witness, as when the latter is lulled into a false sense of security and does not realise that he is being trapped or set up for questions which will effectively challenge him. Advocates often adopt such an approach which are essential to break the effect created by the witness in examination-in-chief or in his affidavit of the evidence in chief. Therefore, it is the counsel appearing for the witness who is subjected to cross-examination can object to the questions posed to the witness which are found to be contrary to ethical rules. In such circumstances, it is the Advocate who has to meticulously watch the proceedings of cross-examination and has to be vigilant to see that Advocate who is cross-examining does not lie or put untruths to the witness.  The essence of the principle here is that the cross- examiner must not act dishonestly. He must not mislead the Court as well as the witness who is being cross-examined. Therefore, the presence of Advocate also plays a vital role when his witness is being cross-examined at the remote point. The presence of Advocate at the remote point would create a sense of security and would help him to face test of cross-examination. That cannot be misconstrued to such an extent that it would amount to prompting or tutoring. His mere presence at the remote point will not violate the Rules. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b>26. Therefore, in the present case on hand, defendant No.2 is entitled to seek legal assistance even when he is being cross-examined by way of video conferencing. Using video conferencing, the defendant\'s rights cannot be sacrificed in the name of procedural efficiency. The adversarial model which is adopted for several decades cannot be abandoned under the garb that the Rules relating to video conferencing does not permit. Adversarialism is a cornerstone of the legal process; the  system  is  predicated  on  this  tenet. Denial of legal assistance while recording ocular evidence of a witness through video conferencing violates fundamental fairness.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b>27. Looking to the recent trend, video conferencing does have a place in the legal system. The challenge is not to exclude it but to use it responsibly. The video conferencing can produce better results, but at the same time, certain highlighted issues which may prop up down the line have to be addressed effectively. The client is entitled to seek assistance and therefore, the clients interaction with his counsel on record is quite essential to a fair trial and a person who is supposed to be cross-examined is entitled to meet his counsel ahead of time to discuss every anticipated questions, concept or a piece of evidence. The Rules that are framed by this Court governing recording of evidence through video conferencing require all participants to follow the Rules in terms of Schedule-I which is annexed to the Rules.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b> 28. It is in this background, the proposition floated by the counsel appearing for the contesting respondents cannot be acceded to. An Advocate should always be with his client. The Rules framed by this Court do not intend to support plaintiffs team or a defence team. The counsel appearing for respective clients are entitled to stand together and the same is necessary for an attorney-client relationship to function properly. A medium that interferes with the court\'s main mission should be eliminated. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b>29. The contesting parties are entitled to have a discussion with their Advocates on record as they need to discuss important decisions concerning vital documents, basic legal strategy prior to appearing in Court. Personal meetings are better for hastening out case strategies, fact gatherings and basic legal tactics. Therefore, it is in this context, if the proposition of respondents is accepted and if counsel appearing for a witness who is supposed to be cross-examined is denied a right of audience at a remote point, the apprehension that the ocular evidence recorded through video conferencing will not satisfy the prescribed requirements of a fair trial and the same would create a doubt in regard to legitimacy of a legal process may turn out to be a hard reality. Therefore, denial of right of audience to a counsel on record has its own ramifications and may result in violation of fundamental fairness and may also have impact on due process of law. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b>30. By introducing technology and by bringing in recording of ocular evidence through video conferencing, an attempt is made in all good faith to meet the standards of face-to-face trial.  By bringing in new Rules, the Courts have to meet the established standards and traditions in recording evidence physically in the open Court.  The dignity and ritual of physical presence in the Court was found to be absolutely necessary for public perception of justice. A very ceremony of trial and presence of fact finder may exert a powerful force for truth telling.  The opportunity to judge the demeanor of a witness face-to-face is accorded great value in our tradition. Now in a given case, where parties consent to record ocular evidence through video conferencing has to meet the above said standards.  There is an apprehension that non-verbal cues are unavailable or harder to read when associated with video conferencing. Therefore, the presence of counsel of a witness to be cross-examined at a remote point becomes further more essential. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b>31. In the light of the discussions made supra, now let me see whether the Court is vested with discretion to permit the counsel appearing for a witness who is supposed to be cross-examined to be present at the remote point.  The remote point has to be considered as an extended court room. A Court includes a physical court and a virtual court and if a Court can have court point at one or more place, then the Rules clearly prescribe that the counsel on record can be present at all point either in the Court physically or through a video link or at a remote point physically.  Rule 14.1 clearly contemplates persons who are entitled to participate in court proceedings.  Rule 14.1 clearly indicates that all Advocates and required persons are entitled to remain physically or virtually present. A discretion is also vested with the Court under Rule 14.7 and it is well within the discretion of the Court in a given set of facts to permit Advocate, required person or any other participants that court deems necessary at the remote point or at the court point. If at all any mischief is played during the course of recording evidence, the Court is better placed to hold an enquiry in regard to any mischief that would be complained. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b>32.<span style=\"white-space:pre\">	</span>Unlike face-to-face hearing, a Judge has a privilege of replaying the recording and find out as to whether the witness is hoaxed or tutored. The court can also examine whether counsel on record has interfered and assisted the witness under cross-examination. The guidelines set out in Schedule-I coupled with Rule 5.6.4 clearly provides adequate protection. It is in this background, this Court would find that the apprehension of the respondents and objections raised in regard to entitlement of counsel on record to be physically present at remote point appears to be misconceived. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b>33. If the order under challenge is tested in the light of the above said discussions made supra, this Court is of the view that the order under challenge is not at all sustainable. Mere bald allegations that if the counsel is permitted to be physically present at remote point, then every possibility of petitioner getting prompted, tutored or coaxed cannot be acceded to and such an objection is not at all sustainable. In fact, Rule 14 which lays down guidelines for conducting proceedings through video conferencing clearly contemplates and authorizes all Advocates to be present physically at remote point. A discretion is also vested with the Court in a given set of facts to permit the counsel or any other unconnected participants to be physically present at the remote point. It is in this background, this Court would find that  the  learned  Judge  erred  in  not  exercising  discretion judiciously. Therefore, the finding of the learned Judge that counsel appearing for the present petitioner/defendant No.2 is already present at the remote point and he can join recording of evidence by joining the link does not satisfy the requirements of a fair trial. The learned Judge erred in not exercising judicial discretion by permitting the counsel appearing for defendant No.2 to be physically present at the remote point. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b>34. If a coordinator at the remote point is already available and if the entire ocular evidence is video recorded, any slight mischief can be easily taken notice of and the consequences would follow if the counsel contravenes any of the courtesies and protocols applicable to a physical Court. Therefore, I am of the view that the counsel appearing for the defendant No.2 is entitled to be physically present at the remote point.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b>(i)<span style=\"white-space:pre\">	</span>The writ petition is allowed;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3b9f9c636e02a5c52afa74fe6c1e286a.JPG', 'ece90307e9c9b5bff8e7bb4fc9b572c2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-01', 1, '', '', '2022-06-30 16:13:06', '2022-07-01 08:31:16');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1888, 'l0APyr5QOvLYbT4oaN5KX6ECp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Intra-court appeal under the Karnataka High Court Act is not maintainable against an order passed by the Single Judge assailing an award passed by the Labour Court. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Management of Bharat Fritz Werner Ltd Vs Bharat Fritz Werner.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Appeal 497 of 2022 decided on 29 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice Ritu Raj Awasthi and Justice Ashok S. Kinagi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Brief facts leading rise to the filing of this appeal are as under :</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner/appellant is engaged in the manufacture of machine tools. The management entered into settlement with the Union i.e. the respondent for a period of three years and eight months.  One of the clauses of the settlement was that the workman should not stage any strike during the subsistence of the settlement and the management should not declare a lockout. The respondent violated the terms of settlement and staged a strike. The petitioner issued a charge sheet-cum-notice of enquiry to four workmen and conducted a departmental enquiry. The petitioner dismissed the four workmen from service. The workmen filed an application under Section 32(2)(b) under the Industrial Disputes Act, 1947 and subsequently the appropriate Government, referred the issue of dismissal of the workmen to the Labour Court, Bengaluru in Reference No.40/97. The Labour Court passed an award on 5.8.2001 and ordered reinstatement of three workmen with full backwages, continuity of service etc. The petitioner aggrieved by the order/award passed by the Labour Court, Bengaluru, filed the writ petition in W.P.No.43940/2011. The learned Single Judge dismissed the writ petition. The appellant/petitioner aggrieved by the order passed in the writ petition filed this writ appeal. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. In the course of hearing, the issue that had fallen for consideration was about the maintainability of the Intra Court appeal.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. He submits that the petitioner filed the writ petition under Article 226 of the Constitution of India seeking for the prayer of certiorari to quash the award dated 5.8.2011 passed by the Labour Court, Bengaluru and that the writ petition is not under Article 227 of the Constitution of India and therefore, the writ appeal would be maintainable.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. In order to consider the said issue, it is necessary to consider Section 4 of the Karnataka High Court Act (hereinafter referred to as \'the Act\' for brevity). Section 4 of the Act provides for appeals from a judgment, decree, order or sentence passed by a Single Judge in exercise of the original jurisdiction of the High Court. The definition of \'original jurisdiction\' in the Act is not defined. In the absence of definition, we place reliance upon the Black\'s Law dictionary with a view to interpret the phrase \'original jurisdiction\' which is found in Section 4 of the Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. Admittedly, the writ petition is filed by the appellant challenging the award/order passed by the Labour Court, Bengaluru. In catena of decisions, the Hon\'ble Supreme Court culled out the principles governing the difference between the \'writ of certiorari under Article 226 of the Constitution of India\' and the \'supervisory jurisdiction under Article 227 of the Constitution of India\'. It is no longer res integra that it is open to the Court while dealing with the petition filed under Article 226 and/or 227 of the Constitution or Intra Court Appeal under Section 4 of the Karnataka High Court\'s Act 1961 arising from the judgment in which the petition could determine whether the facts justify the party in filing the petition under Article 226 and/or 227 of the Constitution and further that nomenclature is of no consequence and it is the nature of relief sought and controversy involved which determines as to which Article, whether 226 or 227 of Constitution of India is applicable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.1. Article 227 of the Constitution of India deals with appointment and condition of office of the Judges of a High Court. The word expression \'judicial office\' used in Article 217(2)(a) of the Constitution of India must be interpreted in consonance with the scheme of Chapter V & VI of Part VI of the Constitution. It means the person who exercise only judicial functions, determines, causes inter parties and renders decisions in a judicial capacity. He must belong to the judicial service which as a class is free from executive control and is disciplined to uphold the dignity, integrity and independence of the judiciary. Going by these tests laid down so as to what constitutes judicial service under Article 236 of the Constitution. The Labour Court judge can be held to belong to judicial service. The Labour Court have also been subject to the High Court\'s power of superintendence under Article 227 of the Constitution of India.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. The Hon\'ble Apex Court in Radhey Shyam vs. Chabbi Nath and Others11 observed that a writ petition can lie only under Article 227 of the Constitution of India, orders from the Tribunals can be regarded for all purposes to be under Article 227 of the Constitution. Whether the learned Single Judge has exercised the jurisdiction under Article 226 or under Article 227 or both would depend upon the various aspects. There can be orders passed by the learned Single Judge which can be construed as an order under both Articles in a composite manner, or can co-exist and coincide. It was reiterated that it would depend upon the nature and character of the order and it will be the obligation of the Division Bench hearing the intra court appeal to discern and decide whether the order passed by the learned Single Judge in exercise of jurisdiction under Article 226 or 227 of the Constitution or both. The Bench would also require to scrutinise whether the facts of the case justifies the assertion made in the petition to invoke the jurisdiction under both the Articles and the relief prayed on that foundation<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. In the instant case, the Labour Court, Bengaluru passed an award in favour of the respondent which was assailed before the learned Single Judge invoking jurisdiction under Article 227 of the Constitution of India.  The writ petition filed by the petitioner must be held as one under Article 227 of the Constitution of India being a challenge to the judicial order of the Labour Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. Considering the law laid down by the Hon\'ble Apex Court and also facts of the present case, without going into the merits of the appeal, we are thus satisfied that the writ petition being preferred under Articles 226/227 of the Constitution of India challenging the award passed by the Labour Court Bengaluru, the present writ appeal against the order of the learned Single Judge which is an intra court appeal is not maintainable.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Writ appeal is dismissed as not maintainable.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f8702e0744d57aa43f363c3fa007ee78.jpg', '616c8fa5ea640a8d2d65c12da3785f66.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-01', 1, '', '', '2022-06-30 16:44:52', '2022-07-01 12:27:59'),
(1889, 'UvYD8pcuwgo8kvfZtUwQwE4pG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. In the matter of \'\'ad-hoc appointments\'\' and \'\'appointment by rotation\'\', rule of seniority need not be followed. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The University of Agricultural Sciences Vs Digambarappa and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 100263 of 2022 decided on 24 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit and Justice P. Krishna Bhat.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. FOUNDATIONAL FACTS OF THE CASE:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>a)<span style=\"white-space: pre;\">	</span>Petitioner had knocked at the doors of Writ Court for assailing the placement of 3rd respondent in the post of Director of Education and his own placement in the post of Dean. The sole factor for such a claim was that he was the senior most in the cadre of Professor. For this petitioner heavily banked upon the Government Order dated 14.11.2019 and Chancellor’s instructions dated 28.01.2022. Thus, his essential grievance is that he being the senior most and 3rd respondent admittedly being junior to him, petitioner ought to have been given the post of Director and the 3rd respondent could have been made the Dean.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> b)<span style=\"white-space: pre;\">	</span>The University and the 3rd respondent had opposed the Writ Petition mainly contending that the appointment in question is purely temporary and for a period of only six months; such appointments are to be made on rotation basis; petitioner was accordingly appointed as a Director earlier and therefore now the 3rd respondent is given that position; petitioner cannot have any grievance since he is given the post of Dean, which is equivalent to that of Director. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">c)<span style=\"white-space: pre;\">	</span>The subject letter dated 14.11.2019 issued by the Under Secretary in the Department of Agriculture, is not a Government Order. The Chancellor’s letter dated 28.01.2022 only instructs adherence to the extant norms. Mr. Jagadish Patil, learned advocate appearing for the 3rd respondent in the Writ Petition submits that the writ petitioner has not suffered any legal injury to have maintained the writ petition. Learned GA made his submissions  on  the  position  of  law  maintaining equi-distance from the warring private parties.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Having heard the learned counsel for the parties and having perused the appeal papers, we are inclined to grant indulgence in the matter for the following reasons:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> a)<span style=\"white-space: pre;\">	</span>Section 24 of the Universities of Agricultural Sciences Act, 2009 enlists Officers of the University which, inter alia, comprise of Directors & Deans. Section 30 empowers the Vice-Chancellor to appoint officers specified in clauses (iv) to (ix) of Section 24.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">b)<span style=\"white-space: pre;\">	</span>The substantive part in Section 30 provides for making regular appointment, whereas the proviso provides for making appointment to the said posts as a ‘temporary </font></span><font face=\"Calibri, sans-serif\">measure’, presumably because regular appointment takes long time and that posts in question cannot be kept vacant for long. It is significant to note that this Section speaks of appointment to specific posts; it specifies the Appointing Authority i.e., the Vice-Chancellor; provision to the section, however, specifies six months as the tenure of appointment; it also states that such appointments are by way of temporary measure. It is also significant to note that the Vice-Chancellor is treated as ‘Conscience Keeper’ of the University concerned, said the Apex Court in Marathawada University Vs. Seshrao Balwantrao Chavan, AIR 1989 SC 1582. In the light of all this, the regularity of the impugned proceedings has to be assumed and therefore, the writ petitioner has to make out a very strong case for interference, this being not a case of regular appointment. </font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>c)<span style=\"white-space: pre;\">	</span>The concept of ad hoc appointment is not alien to Service Jurisprudence; it is a common knowledge that civil servants are appointed on incharge or independent charge basis, in the posts only as a temporary measure, under Rule 32 of KCSRs. In such cases, ordinarily, the seniority does not much factor.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>d)<span style=\"white-space:pre\">	</span>Ordinarily seniority has a pivotal role, while making promotions on regular & substantive basis. However, when it comes to making ad hoc appointments as the ones at hands, ordinarily seniority takes the backseat. This is not to say that the authority in making ad hoc placement can choose whomsoever it wants; even there the requirement of fairness & reasonableness cannot be dispensed with. The proviso to Section 30 does not say anything about seniority whilst making appointment as a temporary measure. The appointment process has to be normative since it is done in the exercise of statutory power, is true. There is some discretion that avails to the appointing authority even u/S 30 of the Act also, cannot be disputed. However, any discretion has to be exercised in accordance with the rules of Reason & Justice said Lord Halsbury in SHARP VS. WAKEFIELD (1891) AC 173.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>h)<span style=\"white-space:pre\">	</span>Universities are not the notional extensions of the government departments, nor their vassals. They are autonomous bodies and therefore their autonomy should be respected. The Secretaries of the Government Departments cannot interfere in the affairs of Universities in the absence of statutory power and the justification for its exercise, both of which are absent in the case at hands.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>i) ..... A perusal of the letter shows that a direction is issued by the Chancellor to the University that in making appointment to posts of the kind, the norms laid down in Rules, Statutes & Regulations should be strictly followed. It has not said anything about seniority. On the other hand the Board of Management has consciously prescribed the norm of rotation, as the mode of appointment. The very idea of ‘appointment by rotation’ excludes the notion of seniority. The Vice-Chancellor in issuing the impugned appointment orders has followed the extant norms. Even this aspect of the matter has escaped due attention of the learned Single Judge. Thus, there is an added error apparent on the face of the impugned judgment.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">j)<span style=\"white-space:pre\">	</span>Learned counsel for the Writ petitioner seeks to justify the impugned Judgment contending that the University orders that are quashed by the learned Single Judge suffered from the infirmity of discrimination inasmuch as only his client was singled out for a step motherly treatment, all others having been left untouched even when he had a very short stint of service. We fail to understand as to how others being not displaced would come to the rescue of petitioner in matters like this, which involve a host of factors that fall outside judicial evaluation. It is not that the petitioner has been left high & dry. Admittedly, he too has been given the post of Dean. The contention that the post of Dean is comparatively a bit lower compared to that of Director, does not merit deeper examination, at our hands given the fact that both the posts carry same pay scale & emoluments. Even the learned Single Judge treats the posts enlisted in Clauses (iv)  to  (ix)  of  Section  24  as  constituting  one  common cadre. Clauses 1 & 4 of Section 31 Read with Clauses (iv) </font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">to (ix) of Section 24 of the Act lend some credence to this view. If the University states that posts are equal, the one who questions it has to make out a strong case to substantiate the contra. That being the position, no prejudice is shown to have been caused to the Writ petitioner by virtue of impugned orders of the University. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>In the above circumstances, these appeals succeed. The impugned Judgment of the learned Single Judge is set at naught and as a consequence the University orders of appointment that were quashed by the said Judgment are hereby resurrected.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b> Costs made easy.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9a011fa69a08add954d4adec70748bb2.JPG', '7602502ff0ca519b8ec06925fac5165d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-06-30', 1, '', '', '2022-06-30 17:01:47', '2022-06-30 23:57:58'),
(1891, 'ZKXD8ZifIuxSpuncQIW5inc2I', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SC/ST (Prevention of Atrocities) Act, 1989. \'\'Pre-existing civil disputes cannot be converted into offences under the Act\'\'. Karnataka High Court while quashing criminal proceedings under the Act. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mirle Varadaraj Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 6687 of 2019 decided on 21 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>FIR was lodged by the 2nd respondent alleging that the Sy.No.21 measuring 1 acre 5 guntas of land was acquired by him through the partition deed and he was in possession and cultivation of the subject land and the petitioner-accused by creating false documents got effected the survey sketch and podhi in his name in respect of the subject land fully knowing that the 2nd respondent belonged to scheduled caste community. It is further alleged that on 11.3.2018 at about 2.00 p.m., the accused along with the rowdy elements threatened him with dire consequences and also tried to assault him and when he tried to stab him, at that time, accused no.1 by referring to his caste, abused him in filthy language. The police registered FIR for the offences punishable under sections 3(1)(r) and 3(1)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Ordinance, 2014 and also under Sections 420, 447, 465, 468, 471, 504, 506 and 34 IPC. Taking exception of the same, this petition is filed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Sri. Ashok Haranahalli, learned senior. Counsel for Sri. Srinivas Rao S.S., appearing for the petitioner submits that the alleged incident has taken place on 11.3.2018. However the FIR was lodged after more than eight months from the date of the alleged offence without offering any plausible explanation, which clearly shows that the FIR was lodged by the 2nd respondent as an after thought with ulterior motive for wrecking vengeance against the petitioner-accused. He further submits that the dispute between the parties is purely civil in nature which is evident from the suit in O.S.No.3923/2015 filed by the sisters of the 2nd respondent for permanent injunction against the petitioner-accused in respect of the subject land. He further submits that the survey sketch and the podhi effected in the name of the petitioner-accused was challenged by the 2nd respondent before the Joint Director of Land Records, which culminated in dismissal of the petition and thereafter the present FIR was lodged by 2nd respondent. Hence he submits that the dispute between the parties is purely civil in nature and placed reliance on the decision of apex court in the case of Hitesh Verma Vs. State of Uttarakhand reported in (2020)10 Section 710. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. On the other hand, the learned counsel appearing for the State submits that the allegations made in the FIR lodged by the 2nd respondent clearly discloses the commission of the offence alleged against the petitioner–accused and at this stage the same does not warrant any interference and the allegations made in the FIR requires to be investigated.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Though notice is served on the 2nd respondent, he has remained absent. In respect of the subject land, the sisters of the 2nd respondent had filed a suit in O.S.No.3923/2015 and in the said suit the order of temporary injunction was granted against the petitioner-accused which was challenged before this court in MFA.No.2257/2016 and this court had stayed the operation of the order of temporary injunction granted in favour of the sisters of the 2nd respondent. Thereafter the 2nd respondent challenged the survey sketch and also the podhi and also the sub-division effected in favour of the petitioner-accused in respect of the subject land before the Joint Director of Land Records. The Joint Director of Land Records by order dated 29.8.2018 dismissed the petition filed by the 2nd respondent confirming the survey sketch and sub-division effected in favour of the petitioner-accused in respect of the subject land. It is only thereafter respondent no.2 lodged the FIR on 10.12.2018. Though the alleged incident has taken place on 11.3.2018, the FIR was lodged after more than eight months from the date of the alleged incident without offering plausible explanation.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Hence, the FIR was lodged as an after thought with an intention to circumvent the order passed by the Joint Director of Land Records confirming the sketch and sub division in favor of the petitioner in respect of the subject matter of the property. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. The filing of the suit by the sisters of the 2nd respondent and also the challenge to the revenue sketch and the sub-division effected in favour of the petitioner-accused which culminated in dismissal of the petition clearly establishes that the allegations made in the FIR arises out of dispute relating to the title between the parties in respect of the subject land.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. Although the offences are covered under the SC/ST Act, pre-existing dispute being civil in nature between the parties arising on account of possession over the property would not disclose an offence under the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. In view of the preceding analysis, I am of the considered view that the dispute between the parties is purely civil in nature, but however given a criminal texture and it would be an abuse of process of law if investigation is allowed<span style=\"white-space:pre\">	</span>to be continued. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space:pre\">	</span>Criminal petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '76b6894f5971a8bee3638f93f54ab274.jpeg', 'ef3aef49d22e16a01b13a89d14e7bfbf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-02', 1, '', '', '2022-07-01 17:23:41', '2022-07-02 13:59:34'),
(1894, 'bX4S4vEmzQiQpXjyFitn8731h', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Rank trespassers on public/reserved forest land, are not entitled to any equitable remedy under Article 226 of the Constitution of India. Such persons are not entitled to any prior notice before eviction. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Meenu Srivastava Vs Government of NCT of Delhi and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. (C) 9627 of 2022 decided on 29 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sanjeev Narula and Justice Neena Bansal Krishna.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">1. The present writ petition has been filed under Articles 226 and 227 of\r\nthe Constitution of India, 1950 seeking quashing/ setting aside of (i)\r\nNotification bearing no. F.10(42)-1/PA/DCF/93/2012-17(I) dated 24th May,\r\n1994 [hereinafter “Notification”] issued by Respondent No. 2 –\r\nDevelopment Department of GNCTD declaring lands mentioned under\r\nSchedule ‘A’ annexed therein [hereinafter, “petition land’’] as “reserved\r\nforest”; and (ii) Notice bearing no. F.NO. 06/DCF(S)/ENCR.PUL\r\nPEHLADPUR/2021/5734-38 dated 08th June, 2022 [hereinafter “Notice”]\r\nissued by Respondent No. 3 – office of Deputy Conservator of Forests </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(South), Department of Forest and Wildlife, GNCTD</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. Mr. Rajesh Pathak, counsel for Petitioners, submits that the petition\r\nland was initially under the control of the Revenue Department, however,\r\nwas later declared as “reserved forest” in terms of Section 4 of the Indian\r\nForest Act, 1927 by the Respondent No. 3 by way of the above Notification.\r\nThereafter, deriving authority from the same, Respondent No. 3 issued the\r\nimpugned Notice wherein Petitioners were directed to vacate the petition\r\nland within 7 days, failing which, the structures erected thereon would be\r\ndemolished and all materials found shall be seized as tools of encroachment.\r\nHowever, despite the issuance of the impugned Notice, it is submitted that\r\nthe petition land always remained residential in nature and Petitioners and\r\nother alleged encroachers, continued to reside in the petition land for more\r\nthan a decade.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. Mr. Pathak further contends that despite the petition land being\r\ndeclared as reserved forest in 1994, Respondents never acted upon the same\r\nand Petitioners were not made aware of such Notification. Petitioners are the\r\nlegal owners of the houses erected on the petition land and are duly\r\nfacilitated with electricity, water supply etc. by government agencies.\r\nFurthermore, the factum of residence of the Petitioners in the petition land\r\nhas also been endorsed by the Government as is evident from the issue of\r\nAadhar cards against the same addresses. Petitioners predominantly belong\r\nto an economically weaker stratum of society and unbeknownst of the\r\nimpugned Notification, purchased houses situated in the petition land, and\r\nhave been residing therein for a considerable period of time. Petitioners do <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not have means to secure alternative accommodations for themselves and\r\ntheir families and will be gravely prejudiced by the proposed demolition.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. On the other hand, Mr. Satyakam, Additional Standing Counsel for\r\nRespondents No. 1 to 3, argues that Petitioners are rank trespassers on\r\npublic/ reserve forest land and are not entitled to any equitable remedy under\r\nthe writ jurisdiction of this Court. By way of this petition, Petitioners are\r\nseeking to bypass the orders of the Supreme Court in M.C. Mehta v. Union\r\nof India, restraining any cultivation or construction in the Ridge Area –\r\nwhich encompasses the petition land as well. Petitioners are claiming rights\r\nto illegally occupy the petition land which vests with Respondent No. 3,\r\nmerely because they have built a structure on the petition land. Petitioners’\r\nclaims are wholly misplaced and misdirected, and as such, are liable to be\r\nrejected. Mr. Satyakam also places reliance on Section 5 of the Indian Forest\r\nAct, 1927 to state that no right could have accrued in favour of the\r\nPetitioners herein qua the petition land after the issuance of the Notification.\r\nIt is for Petitioners to establish their rights or title over the petition land,\r\nwhich has not been successfully done.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. That said, we are in agreement with Mr. Satyakam that granting a\r\nrelief to the Petitioners, as prayed for, would upset the state of affairs that\r\nhave been in operation for more than two decades. He has specifically drawn\r\nour attention to the orders of the Supreme Court dated 25th January 1996 and\r\n13th March 1996 in MC Mehta (supra). A perusal of the directions contained\r\ntherein leaves no room for any doubt that the Apex Court has clearly held\r\nthat the Ridge Area needs to be preserved, and no cultivation or any type of\r\nconstruction may be permitted thereon. The Court directed that uncultivated\r\nsurplus land of Gaon Sabha, falling in Ridge area, (which includes the\r\npetition land) be excluded from vesting in the Gaon Sabha, and be made\r\navailable for the purpose of creation of reserved forest. It also requested the\r\ncommittee established by GNCTD for consideration of matters arising from\r\nthe inclusion of the Gaon Sabha area in the Ridge, to reconsider the same\r\nand issue a Notification under Section 154 of the Delhi Land Reforms Act,\r\n1954. Accordingly, a Notification dated 2\r\nnd April, 1996 was issued under the\r\nabove-mentioned provision, placing the said land at the disposal of the\r\nForest Department for afforestation. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. The Petitioners have neither mentioned nor challenged the afore-noted\r\nNotification of 2nd April 1996. That apart, Mr. Satyakam also draws our\r\nattention to the judgment passed by this Court in Bhagat Singh v. Union of\r\nIndia,  wherein, under somewhat similar facts and circumstances, the\r\nPetitioners therein had filed a petition seeking quashing of the Notification\r\ndated 2nd April 1996. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. We have also considered the contentions of Mr. Pathak that there was\r\nno prior notice issued by the Respondents. However, we are not persuaded\r\nby such a contention. Illegal occupants/encroachers are not entitled to any\r\nprior notice, as has been held by this Court in Rajinder Kakkar v. DDA.\r\n4\r\n\r\nNonetheless, a vacation Notice (being the impugned notice dated 08th June,\r\n2022) has already been issued to the Petitioners requiring Petitioners to\r\npeacefully vacate the petition land within 7 days. Thus, this contention also\r\nfails.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Accordingly, the notification of 2nd April 1996 is still in force today\r\nand bars the Petitioners herein from utilizing the land for residential\r\npurpose. Thus, the Petitioners’ claim for protection, based on the ground that\r\nthey have purchased their houses on the petition land much after the\r\nimpugned notification dated 24th May, 1994 was notified, is unfounded,\r\nperverse in law, and barred by the view taken by this Court in Bhagat Singh\r\n(supra)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. From the facts narrated in the petition, it is apparent that the\r\nPetitioners are keenly desirous of holding on to their encroached land. They\r\ncannot legally occupy the land in question which vests with the\r\nRespondents. Merely because the Petitioners have built a structure on the\r\npetition land, it cannot give them any right to continue residing thereon\r\nwhen the land underneath the said structure does not belong to them.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. Allowing the present petition would unnecessarily hinder the process\r\nof removal of encroachers. As per the directions of the Supreme Court,\r\n5\r\nand\r\nNational Green Tribunal,\r\n6\r\nthe Forest Department is now duty bound to\r\nprotect the areas and promote forestation.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. For the grounds and reasons stated above, we do not find any merit in\r\nthe present petition.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. Dismissed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '726ec87d4a7eb13c3584c67c67037537.JPG', '0e86250f49422af802d2a50080907308.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-02', 1, '', '', '2022-07-01 18:37:12', '2022-07-02 16:58:13'),
(1895, 'yFxOwsqC5G9eiy2cZZkkGoxXM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Daksha Legal Monthly Digest - June 2022', '<p><span style=\"background-color: rgb(255, 255, 0);\"><b>Daksha Legal Monthly Digest - June 2022. </b></span></p><p><span style=\"background-color: rgb(255, 255, 0);\"><b><br>Please Download PDF and click on the link to access the judgment </b></span></p>', '4772ae4f91bb48771b4fbf3fd2c9a1d3.JPG', '468f57b7b7ac59b857671fae70123248.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-02', 1, '', '', '2022-07-02 02:40:47', '2022-07-02 12:29:02');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1896, 'Lx8lj50C1IXdryWHiZhNIaK3m', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration award. The date for quantifying the stamp duty payable on the award is the date on which the award was signed. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shriram City Union Finance Ltd Vs Donald Dayanand Donald and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 205899 of 2019 decided in 27 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2. Brief facts of the case as revealed from the records are that the petitioner - Company had initiated arbitration proceedings against the respondents herein for recovery of the overdue loan amount borrowed by them. The claim made by the petitioner was partly allowed by the arbitrator and a judgment and award was passed in favour of the petitioner herein on 23.04.2016 holding that the petitioner is entitled to recover a sum of Rs.8,10,251/- with interest at 18% per annum from the date of the award till realization with cost of Rs.5,000/-. The said award had attained finality.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The petitioner there afterwards had filed an execution petition in E.P.No.134/2016 before the Court of First Additional District and Sessions Judge at Kalaburagi claiming the award amount with interest at 18% per annum, which totally amounted to Rs.8,87,975/-. After the judgment debtors were served, the executing Court heard the matter regarding payment of stamp duty on the award which was sought to be executed and on 06.07.2019 an order was passed holding that the petitioner is required to have pay the stamp duty at 6% on the valuation of the award amount and accordingly, directed the petitioner to pay the deficit stamp duty and the matter was adjourned to 14.08.2019. On 14.08.2019, the case was finally adjourned to 31.08.2019 for payment of the deficit stamp duty. On 31.08.2019, since the deficit stamp duty was not paid, the execution petition was dismissed. Being aggrieved by the orders dated 06.07.2019 and 31.08.2019, the petitioner/decree holder is before this Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. The learned counsel for the petitioner submits that pursuant to the amendment to the Karnataka Stamp Act vide Karnataka Act No.19 of 2014, the petitioner is required to pay the stamp duty as provided under Article 11 (b) of the Schedule to the Karnataka Stamp Act. The Trial Court has failed to take note of this amendment and had erred in directing the petitioner to pay the stamp duty at 6% on the valuation of the award amount. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The learned High Court Government Pleader, who was directed to take notice for the respondents for the purpose of assisting the Court submits that the stamp duty is required to be paid, as may be applicable as on the date of drawing up of the award and not that may be applicable as on the date of initiating the proceedings to execute the said award. He submits that in spite of sufficient opportunities being given to the petitioner, it had failed to pay the deficit stamp duty and therefore, no fault can be found in the order passed by the executing Court dismissing the execution petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. The procedure for enforcement and execution of the decrees in India is governed by the Code of Civil Procedure, 1908 while that of Arbitral Award in India is primarily governed by the Arbitration an Conciliation Act, 1996 as well as the Code of Civil Procedure, 1908. Section 36(1) of the Arbitration Act provides for execution of the arbitral award. The said Act does not expressly lay down any legal requirement that mandates the parties to an arbitration agreement to pay stamp duties on an arbitral award. In the case of M.Anasuya Devi vs. M.Manik Reddy reported in 2003 (8) Scce 565, the Hon\'ble Apex Court has held that the objection as to non stamping of the arbitral award is required to be dealt with at the stage of enforcement of arbitral award and not at the stage of objections under Section 34 of the Arbitration Act, 1996.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. Therefore, it is very clear that the date for the purpose of quantifying the stamp duty payable on the instrument is the date on which the instrument was signed.  In the case of M.Anasuya Devi (Supra), the Hon\'ble Apex Court has held that at the time of enforcement of the award under Section 36 of the Arbitration and Conciliation Act, the parties can raise objection regarding its applicability on account of non registration and also for non stamping under Section 17 of the Registration Act. Therefore, it is very clear that with regard to the deficiency of stamp duty paid, an objection can be always raised at the stage of execution of the said award. In the instant case, the arbitral award has been passed on 23.04.2016 and as on the said date, the amendment to Article 11(b) of the Schedule to the Karnataka Act substituted by Act No.19 of 2014 had already come into effect. The execution petition has been filed on 18.10.2016 and the Act No.19 of 2014 had come into effect from 01.03.2014. Since the amendment to Article 11(b) by Act No.19 of 2014 was already in force as on the date of passing of the award and as well as on the date of filing of the execution petition, the stamp duty as provided under Article 11(b) of the Schedule to the Karnataka Stamp Act is required to be paid on the arbitral award which sought to be executed. The executing Court had failed to appreciate this aspect of the matter. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. As per the amendment to Article 11(b) in the Schedule, the proper stamp duty that is required to be paid on the arbitral award is 3/4% of the value of the arbitral award i.e., 0.75% of the value of the arbitral award. The executing Court had directed the petitioner to pay the deficit stamp duty at 6% on the valuation of the award amount, since no stamp duty was paid on the arbitral award which is sought to be executed and the same was drawn on a plain paper. I am of the considered view that the executing Court had failed to take note of the amendment by way of substitution of Article 11(b) of the Schedule to the Karnataka Stamp Act and thereby had erred in directing the petitioner to pay the stamp duty at 6% on the valuation of the award amount. The Executing Court had also further erred in dismissing the execution petition for non payment of stamp duty. Under the circumstances, the impugned orders passed by the executing Court in E.P.No.134/2016  dated  06.07.2019  and  31.08.2019 cannot be sustained.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The writ petition is allowed. The impugned orders passed by the First Additional District and Sessions Judge at Kalaburagi in E.P.No.134/2016 dated 06.07.2019 and 31.08.2019 vide Annexures-D and E are set aside and the executing Court is directed to collect the stamp duty from the petitioner - Company as per the observations made by this Court herein above.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1e7e40b585f357e847ec1d3b94e8a526.jpeg', '4049f6f70017b0123bc5381e183376a9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-04', 1, '', '', '2022-07-04 16:51:07', '2022-07-04 09:35:53'),
(1903, 'csgobPUoZcZNyIP99Ks4IpHHZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Accident involving overloaded auto-rickshaw. Insurance company should pay compensation even in respect excess number of passengers and recover the same from the insured. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Branch Manager Bajaj Allianz General Insurance Co. Ltd Vs M Nagappa and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>MFA 24592 of 2010 decided on 28 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P. Krishna Bhat.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Brief facts insofar as the same are relevant for the purpose of adjudicating these appeals are that on 11.09.2007, the claimant-Nagappa was traveling in a passenger Auto-rickshaw bearing registration No.KA-34/8236 from Bagewadi village to Kakkabevinahalli via Tekkalakote and at about 11 a.m., while said Auto-rickshaw was passing near K.E.B. Grid on SH-19 road, on account of rash and negligent driving of the driver of Auto-rickshaw, it capsized and fell into a ditch on the left side of the road, resulting in grievous injuries to the claimant. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. On claim petition being filed, respondent No.1 and 2 namely owner-insured of the vehicle and Insurance Company appeared through their respective counsel and respondent No.2-insurer filed its detailed statement of objections. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. After hearing the learned counsel on both sides and perusing the records, the learned Tribunal allowed the claim petition in part awarding a compensation of Rs.3,40,000/- with interest thereon at 6% per annum from the date of petition till date of payment. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Sri. R R Mane, learned counsel appearing for the appellant/Insurance Company in support of his appeal vehemently contended that the Insurance Company is not liable to pay compensation amount and the award passed by the learned Tribunal to the said extent is erroneous inasmuch as there was violation of the material terms of policy of insurance as the Auto-rickshaw in question was plying in violation of permit condition and also there was overloading of passengers in the said Auto-rickshaw at the time of the accident. He submitted that even the quantum of compensation awarded in a sum of Rs.3,40,000/- is on the higher side and therefore, appeal filed by the Insurance Company is required to be allowed by dismissing the appeal of the claimant. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. Per contra, learned counsel appearing for the appellant/claimant in support of his appeal contended that even if Auto-rickshaw is plied in violation of permit condition, the Insurance Company cannot be absolved from liability to pay compensation and therefore, effective order to be passed is for “Pay and Recover” in view of decision of the Hon’ble Apex Court in Amrit Paul Singh & Another Vs. Tata AIG General Insurance Company Ltd. & Others. He also submitted that even in cases of ‘overloading’, the Hon’ble Apex Court in United India Insurance  Company  Limited  Vs.  K.M.  Poonam  & Others has held that Auto-rickshaw being passenger auto, the insurance company is liable to pay compensation in respect of permitted number of passengers to be carried in the said vehicle and in regard to excess number of passengers, the Insurance Company is liable to pay compensation in the first instance and recover the same from the insured.  Further, learned counsel for the claimant contended that the compensation awarded is on the lower side inasmuch as the claimant had suffered comminuted condyler fracture of left humerus resulting in permanent disability. He submitted that on the heads of compensation like pain and suffering, conveyance charges, nourishing food and loss of earning capacity, the compensation awarded is on the lower side and same is required to be enhanced.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. Learned counsel for the appellant/Insurance Company has seriously contended that the insured Auto was plying beyond permit granted to it, and therefore, the insurance company is not liable to pay compensation. The said contention of the learned counsel for insurer is not sustainable in view of decision of the Hon’ble Apex Court in Amrut Paul Singh’s3 case, where the vehicle in question was not even having any permit, the Hon’ble Apex Court has held that the Insurance Company is liable to pay compensation in the first instance and recover the same from the owner of the vehicle in the same proceedings. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. Insofar as ‘overloading’ as contended by the learned counsel for the Insurance Company is concerned, the same is also no longer res-integra.  The Hon’ble Apex Court in K.M. Poonam’s4 case has made it clear that in regard to passengers covered under the policy of insurance, the insurance company is wholly liable to reimburse the compensation and insofar as those who are not covered under the policy of insurance, the insurance company is not entitled to disclaim liability and it is liable to pay compensation in the first instance and thereafter recover the same from the insured person in the same proceedings. Therefore, the said contention of the learned counsel for the insurance company is not entitled to be upheld and it is accordingly, rejected. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">13. Ex.P144 discloses that even though the accident had occurred on 11.09.2007, as on 01.10.2007, Expert in Hosmat Hospital found that the claimant was not able to close reduction of left humerus and it was left alone. Records show that the claimant had also taken treatment in VIMS Hospital, Bellary which had issued Ex.P8-Out Patient Book. Apart from the same, PW4 examined before the learned Tribunal who is one Dr. Venkateshulu, Professor of Orthopedic Surgery in VIMS Hospital, Bellary. He had issued Ex.P9-Disability Certificate. Since the fracture suffered is a comminuted one of left humerus, I am of the view that under the head of pain and suffering, Rs.40,000/- is required to be awarded. Learned Tribunal upon consideration of the medical bills has awarded a sum of Rs.1,50,000/- under the head of medical expenses and that requires to be maintained.  Since the claimant had undergone treatment in VIMS Hospital, Bellary and also Hosmat Hospital, Bengaluru, he being a resident of Bellary, he would have spent considerable amount under </font><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">the head of conveyance charges, attendant’s expenses, nourishing food as he was in hospital for about three weeks as inpatient in Bangalore. Therefore, under the head of conveyance charges, it is necessary to award a sum of Rs.20,000/- and towards nourishing food and attendant charges, a sum of Rs.20,000/- is required to be awarded. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">14.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">The next important question to be decided is, the compensation to be awarded under the head of loss of earning capacity which should take care of loss of future prospects as well in view of decisions of Hon’ble Apex Court in Jagadish Vs. Mohan & Others , Sandeep Khanuja Vs. Atul Dande, Erudhaya Priya Vs. State Express Transport Corporation Limited  and also decision of Division Bench of this Court in New India Assurance Company Ltd. Vs. Abdul M Tahasildar . The claimant was aged about 42 years at the time of the </span><font face=\"Calibri, sans-serif\">accident and therefore, appropriate multiplier applicable to his age is 14. Notional income of the claimant is fixed at Rs.4,000/- per month following the chart prepared by the Karnataka State Legal Services Authority which is generally followed in compensation cases throughout the State of Karnataka. 25% of the established income is required to be added towards loss of future prospects. Because of serious fracture suffered by the claimant to the left humerus, he would not have been able to do any gainful work at least for a period of six months. Therefore, a sum of Rs.24,000/- is required to be awarded towards loss of earning during laid up period (Rs.4,000x 6 months).</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16. Therefore, keeping in view the above observations made by the Hon’ble Apex Court, I am of the view that the functional disability of the claimant is required to be taken at 50%. In that view of the matter, loss of earning capacity is required to be recomputed as under:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Rs.4,000 + 25% x 12 x 14 x 50/100= Rs.4,20,000/-</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18. The appellant/claimant shall be entitled to total compensation of Rs.6,74,000/- as against Rs.3,40,000/-awarded by the learned Tribunal. Thus, the claimant would be entitled to enhanced compensation of Rs.3,34,000/-which shall carry interest at 6% per annum from the date of petition till date of payment.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19. ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>a)<span style=\"white-space:pre\">	</span>Both the appeals are disposed off to the above extent.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>b)<span style=\"white-space:pre\">	</span>In modification of the impugned award, the claimant shall be entitled to enhanced compensation of Rs.3,34,000/- which shall carry interest at 6% per annum from the date of petition till date of payment.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>c)<span style=\"white-space: pre;\">	</span>Appellant-Insurance Company shall deposit the enhanced compensation amount with accrued interest within a period of six weeks from today before the learned Tribunal.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>d)<span style=\"white-space: pre;\">	</span>Amount in deposit, if any, before this Court shall be transmitted to the learned Tribunal along with TCR forthwith.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>e)<span style=\"white-space: pre;\">	</span>No order as to costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '42056be38957fc2ef8bb0aa88b617822.jpg', 'ffacd59305a821e3fad77423def2bd52.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-06', 1, '', '', '2022-07-05 16:26:47', '2022-07-06 10:23:04'),
(1904, 'HVY9gbrkqTJWf8TOi5GTWrV41', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Kerala Industrial Single Window Clearance Act 1999. Establishments in notified industrial area enjoy statutory exemption from securing clearances from the local bodies and payment of property tax. Kerala High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Holmarc Opto Mechatronics (P) Ltd Vs The Secretary, Kalamassery Municipality and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WP (C) 3603 of 2016 decided on 1 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Shaji P. Chaly.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Petitioner is a private limited company and it owns a\r\nmanufacturing industrial unit in an Industrial Development Area\r\ndeclared by the State Government namely, Kalamassery Industrial\r\nDevelopment Area (HMT Industrial Estate, Kalamassery). According to\r\nthe petitioner, the company has secured all statutory permissions and\r\nlicenses from the Secretary of the Kalamassery Municipality/the first\r\nrespondent and the General Manager, District Industries Centre/the\r\nthird respondent. It is further submitted that by the end of October 2013,\r\nthe petitioner company constructed a new factory building having an\r\nextent of 724.97 sq.metres in accordance with law. The grievance\r\nhighlighted by the petitioner is in respect of an action taken by the\r\nSecretary of the Municipality as per Exts.P10 and P11. Ext.P10 is an order\r\npassed by the Secretary dated 4.1.2016 levying the property tax of\r\nRs.4,79,573/- for the period 2013-14 to 2015-16. Ext.P11 is a statutory\r\ndemand raised on 4.1.2016 to recover the tax. It is thus basically\r\nchallenging the legality and correctness of the levy and demand, the writ\r\npetition is filed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The paramount contention advanced by the petitioner is that as\r\nper Section 450(i) of the Kerala Municipality Act, 1994 as well as Section 6\r\nof the Kerala Industrial Single Window Clearance Act 1999, all industrial\r\nundertakings established or proposed to be established in industrial\r\nareas declared by Government are exempted from obtaining building\r\npermit from Local Self Government Institutions, Town Planning\r\nDepartment and other authorities. It is also the case of the petitioner\r\nthat even prior to the above enactments, the Government of Kerala as\r\nper Ext.P8 order had exempted such industrial units from obtaining\r\nclearances from local bodies. That apart the State of Kerala has clarified\r\nthe same as per Ext.P9 circular. The sum and substance of the contention\r\nof the petitioner is that the said legal aspects pointed out by the\r\npetitioner would make it clear that the petitioner, who is functioning in\r\nthe notified industrial estate is exempted from obtaining building permit\r\nto establish or to construct a factory building or any other building in the\r\nindustrial area. However, it is submitted by the learned counsel for the\r\npetitioner that the Secretary of the Kalamassery Municipality has\r\nillegally and incorrectly classified petitioner’s factory building as an\r\nunauthorized building for the purpose of levying municipal property tax\r\nand issued the demand notices. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The State Government has filed a detailed counter affidavit\r\nbasically supporting the contentions advanced by the petitioner and has\r\nalso pointed out the benefits enjoyed by an establishment like the\r\npetitioner on the basis of various Government Orders. Among other\r\ncontentions, it is submitted that land to an extent of 10.65 cents\r\ncomprised in Sy.No.1037/10 (Re.Sy.No.121/2, Block-6) of Thrikkakkara\r\nNorth Village, Ernakulam District along with B7 shed thereon was\r\nallotted in Hire purchase basis in favour of M/S Homarc slides and\r\ncontrol (P) Ltd. subject to the conditions stipulated in G.O.\r\n(MS)No.294/06/RD dated 07.10.2006 of Revenue (A) department (Ext.P1).\r\nAn extent of 13 cents in Sy.No.121/2, Part in block No.6 of Thrikkakara in\r\ncontiguous to its assigned land was also allotted in hire purchase basis to\r\nthem for expanding its existing activity as per proceedings\r\nNo.B2/1436/07 dated 26.11.2007 the GM, DIC, EKM (Ext.P2). Also an\r\nextent of 7 cents of vacant land, near to the unit comprised in\r\nSy.No.121/2 part in Thrikkakara North Village in HMT AIE, Kalamassery\r\nwas allotted on hire purchase basis as per proceedings No.B2/1436/09\r\ndated 17.1.2011 of the GM, DIC, EKM. Hence total extent of land allotted\r\nto M/S Holmarc Slides & Controls (P) Ltd. was 30.0625 cents including\r\n10.625 cents of assigned land. It is also submitted that the petitioner has <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">submitted application on 18.02.2009 for getting approval for a building\r\nproposed to be constructed in the 13 cents of land comprised in\r\nSy.No.121/2 part in Block No.6 of Thrikkakara North Village with an area\r\nof 413 Sq.m. After having some physical verification, the respondent has\r\ndirected the unit to produce a revised plan incorporating the actual\r\nutilization of the proposed build up area. Accordingly, the unit has\r\nresubmitted a revised plan with total build up area of 724.97 Sq.m. to\r\nconstruct as per the plan submitted. Later, on 27.9.2011 by considering\r\ntheir application, the submitted building plan has been approved as per\r\nExt.P3 & P4. As per G.O.(Rt)No.591/94/ID dated 05/07/1994 of Industries\r\nDept. and Section 6 of Kerala Industrial Single Window Clearance Boards\r\nand Industrial Township Area Development Act 1999 an Industrial\r\nDevelopment Area, shall be exempted from obtaining clearances from\r\nthe concerned local bodies. As per G.O.(MS)No.327/63/Ind dated\r\n09.04.1963 of Industries (C) Dept, Government have ordered that after the\r\nacquisition of the said 900 acres of land for establishing Machine Tool\r\nFactory in central sector sanction was also accorded for making the area\r\navailable to the Hindustan Machine Tools Ltd. (HMT), Bangalore, for free\r\nof cost. As per G.O.(MS)No.505/64/Ind. dated 31.07.1964 of Industries (G)\r\nDept., Government have ordered that after the acquisition of the said 900 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">acres of land for establishing Machine Tool Factory, it shall be treated as\r\nDevelopment Area as contemplated in ruled 2(d) of the Rules for the\r\nassignment of Government lands in Development areas for industrial\r\npurpose” appended to G.O.(P)No.220/Rev dated 30.3.1964 and assigned on\r\nregistry to the HMT Ltd., Bangalore. Since the lands is declared as\r\nDevelopment Area as per GO(MS)No.505/64/Ind dated 31.07.1964, the\r\nunits which are established in DA/DP/MIE are exempted from obtaining\r\nlicences/clearances from the concerned local bodies. As per\r\nGO(RT)No.591/94/ID dated 05/07/94, it is clear that the units established\r\nin DA/DP/MIE shall be exempted from obtaining licences/clearances\r\nfrom concerned local bodies, but all industrial units shall have to obtain\r\nthe same from the concerned, GM, DIC and as per GO(MS)169/69/ID\r\ndated 5.4.1969 pay any taxes, cess and other charges payable in respect of\r\nthe said properly to state or Central Government, corporation of any\r\nother legally constituted body in due time. It is also submitted that when\r\nthe petitioner has approached the office of the second respondent for\r\nintervening in the matter and requested to issue necessary direction to\r\nthe Kalamassery Municipality to treat the construction as legal and to\r\nissue direction to accept the property tax, as per Ext.P14, the office has\r\ngiven necessary direction to the Kalamassery Municipality to consider </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the matter as per the prevailing rules. As per GO(Rt)No.591/94/ID dated\r\n5.07.1994 and Section 6 of Kerala Industrial Single Window Clearance\r\nBoards and Industrial Townships Area Development Act, 1999, all\r\nindustrial undertaking being established or proposed to be established in\r\nindustrial areas shall be exempted from obtaining any type of permits\r\nfrom Municipalities or Grama Panchayat etc. for construction of building\r\nfor starting an industrial undertaking. Hence Ext.P10 & Ext.P11 notices\r\nissued by the 1st respondent are illegal and therefore liable to be set\r\naside. The classification of the petitioner\'s building as unauthorised\r\nbuilding and demand notice issued by the Kalamassery Municipality as\r\nper Ext.P10 and Ext.P11 is ultra vires and illegal as per the above\r\nmentioned Government Orders and the provision of existing law. The\r\nHMT Ancillary Industrial Estate is situated in the 900 Acres of land\r\nassigned to the HMT Ltd as per GO(MS)No.327/63/IND dated 09/04/1963\r\nand which is later declared as Industrial area as per\r\nGO(MS)No.505/64/IND dated 31/07/1964. All industrial undertakings in\r\nHMT Ancillary Industrial Estate are exempted from obtaining from local\r\nbodies permission to construct a factory building or to install\r\nmachineries therein. So the classification of the petitioner\'s building as\r\nunauthorised is illegal.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Respective counsel have advanced their arguments in\r\naccordance with the contentions recorded above. The sole question to be\r\nconsidered is whether the Municipality is entitled to levy property tax\r\nagainst the petitioner. Before going to the provisions of law, it would be\r\nworthwhile to refer to Ext.P8 order passed by the State Government\r\ndated 5.7.1994 exempting the industrial establishments from obtaining\r\nlicenses of the local bodies functioning within the industrial area\r\ndeclared by the Government. The order clearly specifies that the\r\nindustrial units located in the Industrial Estates/Development Area/Mini\r\nIndustrial Estate/a consolidated list of which are appended to the order, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">shall be exempted from obtaining clearances from local bodies as per\r\nnotifications dated 6.8.92 and 6.5.92. The appendix annexed to Ext.P8\r\nGovernment Order would clearly show that in Ernakulam District\r\nKalamassery Industrial Estate is declared as an industrial estate by the\r\nState Government. Going by the Government Order, it is clear that even\r\nprior to the introduction of the Kerala Municipality Act, 1994 with effect\r\nfrom 30th May of 1994, the Government have exempted industrial\r\nestablishments from obtaining clearances from local bodies. Anyhow,\r\nSection 450 of Act 1994 is an enabling provision granting exemption to\r\nthe industrial establishments functioning within the notified industrial\r\narea. From the provisions of Section 448 of Act 1994 it is clear that\r\nlicense is required for the construction of industry, factory or other\r\nworkplace and to use steam power or any other power therein or to\r\ninstall other machineries.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. I notice that as per Act 14/2018 Section 450 is amended by\r\nincorporating Entry (j) by including industrial units certified by the\r\nKerala State Pollution Control Board as Green and White category and\r\nmade other consequential amendments also to deal with the\r\nrequirements contained under Section 450.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. On a proper appreciation of the said provision, it is clear that\r\nthe establishments in any notified industrial area enjoy a statutory\r\nexemption from securing clearances from the local bodies. So also, the\r\nKerala Industrial Single Window Clearance Board and Industrial\r\nTownship Area Development Act, 1999 was introduced on and with\r\neffect from the year 1999.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Therefore, on a conjoint reading of Ext.P8 Government order,\r\nthe provisions of law deliberated above and the submissions made by the\r\nState in its counter affidavit, it is clear that the Panchayat was not right\r\nin levying property tax against the petitioner as per Ext.P10 and\r\ndemanding the same as per Ext.P11 and other consequential notices.\r\nTaking into account the said legal and factual aspects, I am of the\r\nundoubted opinion that when a statute exempts or grant benefits to\r\nindustrial establishments located within the notified industrial areas,\r\nthe local body is precluded from taking any action on the basis of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">provisions of law applicable to other industrial establishments. I am also\r\nof the view that exemption is granted by the statute as well as the\r\nGovernment in order to promote industries within the State and to\r\nfacilitate an easy mechanism for an industrialist to start the\r\nestablishments without being saddled by the intricacies contained\r\nunder various statutes, by resorting to the single window clearance\r\nmethodology provided under Act 1999. However, learned counsel for\r\nthe Municipality submitted that the Government Orders as well as the\r\nstarting of the industrial units in the industrial estates are not informed\r\nby the respective statutory authority to the Municipality, which is only\r\ncreating the situation like the present one and therefore, there may be a\r\ndirection to the State Government and the District Industries Centre to\r\ninform the Municipality whenever an industrial establishment is started.\r\nIn my considered opinion, when a notification/order is published by the\r\nGovernment in the gazette and when provisions are made under\r\ndifferent statutes, all are presumed to know the law and therefore, there\r\nis no much force in the said contention advanced. Anyhow, since such a\r\ncontention is advanced by the Municipality, it is for the State\r\nGovernment and its officials to consider as to whether any intimation is\r\nto be given to the local bodies in regard to the discussed aspects.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Upshot of the above discussion is that the writ petition is allowed\r\nand Ext.P10 order levying property tax on the petitioner, Ext.P11 order\r\ndemanding the same and any other consequential demands to recover\r\nthe property tax would stand quashed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '82eb5c53e9a6aa10e8ef2be0d51e1a8c.png', 'e05fda3be4b7359c238192d275a2efe7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-06', 1, '', '', '2022-07-05 17:12:47', '2022-07-06 06:26:49'),
(1905, 'WHoWFICspEWTW6pstF6BMiiz2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Directors of a company cannot be held vicariously guilty of the offence punishable under Section 138 when the company is not arrayed as an accused in the complaint. Karnataka High Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ronald Rebello and others Vs T.G. Narayan.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 10113 of 2017 decided on 29 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Respondent filed a private complaint under Section 200 of Cr.P.C. for the offence punishable under Section 138 of the Negotiable Instruments Act alleging that the cheque which was issued by the Sargam Trading and Services Pvt. Ltd., a company incorporated under the Indian Companies Act, 1956 towards legal recovery and when presented for realization was dishonoured for want of funds. The learned Magistrate after recording the sworn statement of the complainant issued summons to the petitioners-accused against which the present petition is filed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2. Learned counsel appearing for the petitioners submits that the complainant having not arrayed company as an accused, the petitioners-accused cannot be held vicariously guilty of the offence punishable under Section 138 of N.I. Act as specified under Section 141 of said Act. Hence, the complaint is not maintainable.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">5. Perusal of the subject cheque indicates that the cheque was issued by the company in favour of the complainant. The complainant has not arrayed the company as an accused and in the absence of the same, petitioners-accused who are the directors of the company cannot be held vicariously guilty of the offence punishable under Section 138 of N.I. Act as specified under Section 141 of the Act. Hence, the complaint filed by the respondent without arraying the Company as an accused is not maintainable and is hit under Section 141 of the N.I. Act.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">i)<span style=\"white-space: pre;\">	</span>Criminal petition is allowed.</font></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7c0d2bb58d766110c4a8f422d90bad74.jpg', 'cec95e6b7bdd7a1f798f5620b58250c3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-06', 1, '', '', '2022-07-05 18:17:05', '2022-07-06 13:56:00');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1906, '6OjcSJKK8Uh88flZn6rL263Sw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mahazar drawn contrary to Section 100 (4) Cr.P.C. is only irregular. Same cannot be termed as illegal if seizure can be proved upon search conducted. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kenchappa Kanchappa Vs The Karnataka State Pollution Control Board.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 5043 of 2016 decided on 6 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Respondent filed a private compliant under Section 200 of the Cr.P.C. for the offence punishable under Section 37 of the Air (Prevention and Control of Pollution) Act, 1981, (for short ‘Air Act’) alleging that, the petitioner without obtaining a consent from the Board was carrying on the crushing operation and thereby committed the offence punishable under Section 37 of the Air Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The learned Magistrate after perusal of the complaint and documents produced along with the complaint, took cognizance of the offence punishable under Section 37 of the Air Act against the petitioner-accused. Taking exception to the same, this petition is filed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Learned counsel appearing for the petitioner-accused submits that, in the absence of any material to form an opinion that the complainant has made a prima facie case to proceed against the petitioner, the taking of cognizance by the learned Magistrate is contrary to Sections 190 and 204 of Cr.P.C. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. On the other hand, learned counsel appearing for the respondent submits that the petitioner having continued with the crushing operation in the absence of a consent by the Board has committed an offence punishable under Section 37 of the Air Act and the learned Magistrate has rightly taken cognizance of the aforesaid offence against the petitioner-accused. He further submits that the Illustration-B of 106 of Indian Evidence Act, 1872, specifies that the burden of proving that he was not operating the business of crushing is on the petitioner-accused and as such, the proceedings cannot be quashed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Allegation against the petitioner-accused is that he is carrying on the crushing operation without obtaining a consent from the Board as specified under Section 21 of the Air Act. The complaint is filed on the basis of inspection alleged to have been conducted on 07.01.2013, wherein, it is alleged that, upon inspection the petitioner-accused was found to be carrying on the crushing operation and on seeing the Officials, the labourers who were carrying on the crushing operation ran away by stopping the machineries. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. Section 24(4) of the Air Act specifies that the provisions of Cr.P.C., so far as may be, apply to any search or seizure under this Section as they apply to any search or seizure or seizure made under the authority of a warrant issued under Section 94 of the said Code.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 8. Section 100(4) of Cr.P.C Specifies that before making a search, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. Section 100(5) of Cr.P.C. specifies that the search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. In the present case, mahazar has been prepared alleging that the petitioner was carrying on the crushing operation in the absence of consent order from the Board and the labourers who were carrying on the crushing operation on seeing the officials ran away by stopping the machineries used for crushing operation. The mahazar is signed by the official witnesses and not by independent witnesses as specified under Section 100(4) of Cr.P.C. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. Though the mahazar drawn is contrary to Section 100(4) of Cr.P.C., the same cannot be said to be suffering from any illegality but utmost can be said to be irregular if seizure can be proved upon search conducted. In the present case, the mahazar drawn does not disclose that upon search conducted, there was seizure of any incriminating material to substantiate the claim of the complainant that the petitioner was carrying on crushing operation in the absence of a consent order under Section 21 of the Air Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. The contention raised by the learned counsel for the respondent that the burden is on the petitioner-accused to prove the fact that the petitioner was prima facie carrying on the stone crushing operation and relies on the illustration-B of Section 106 of the Indian Evidence Act. It is pertinent to mention that there is no material produced with the learned Magistrate to form an opinion that the petitioner prima facie committed offence under Section 37 of the Air Act and hence, burden of proving the fact of running the crushing operation doesn\'t arise. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. In view of the preceding analysis in the absence of any material to form an opinion that there is a prima facie case to proceed against the petitioner, the taking cognizance of the offence by the learned Magistrate is impermissible. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">14. </font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">ORDER</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">i)</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem; white-space: pre;\">	</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Criminal petition is allowed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '164ffd6442a612ba95247a3b370ea65b.jpg', 'e1b587a406a91d5435ea915269994f58.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-06', 1, '', '', '2022-07-05 18:40:29', '2022-07-06 12:22:23'),
(1899, 'G1YxMKAGpEDyj18lW6oWZu4PX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Violation of basic human right to property. Jammu and Kashmir High Court awards present day market value compensation, rental compensation and special penalty towards illegal occupation of private property by the Government.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shabir Ahmed Yatoo Vs UT of J and K and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WP (C) 174 of 2021 decided on 30 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Javed Iqbal Wani and Chief Justice Pankaj Mithal.<o:p></o:p></b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2. The grievance of the petitioner in the present writ petition is regarding\r\n9.053 Marlas of land falling under survey No. 550 of Moza Sultanpora\r\nSumbal, Bandipora, District Baramulla.</span></span><br></b></p><p><b>3. The petitioner alleges that he is the owner of the said land and that\r\nsometime in the year 2017, the R&amp;B Department took possession of the said\r\nland for construction of the long Steel Girder Bridge at Zalpora Sultanpora\r\nSumbal, Bandipora but without acquiring the said land in accordance with\r\nany statutory provision or with the consent of the petitioner. The petitioner\r\nhas not been paid any compensation of the said land ever since then.\r\n</b></p><p><b>4. The respondents 2, 3 and 4 have filed reply to the writ petition and\r\nthey accept that for the purposes of construction of the above Steel Girder\r\nBridge, the possession of the land of the petitioner aforesaid was taken over.\r\nThe representation of the petitioner for grant of compensation is under&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">consideration and the respondents propose to pay compensation as per the\r\nstamp duty rate.\r\n</span></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>5. The aforesaid facts and circumstances clearly reveal that the private\r\nland of the petitioner has been taken over by the respondents forcibly without\r\nthe consent of the petitioner and without taking recourse to any procedure\r\nprescribed in law. It is also an admitted fact that the petitioner has not been\r\npaid any compensation in respect of the said land though the\r\ndetermination/assessment of the compensation is under way as per the stamp\r\nduty rate.\r\n</b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>6. It is well recognized that Right to Property is a basic human right\r\nwhich is akin to a fundamental right as guaranteed by Article 300 A of the\r\nConstitution of India and that no one can be deprived of his property other\r\nthan by following procedure prescribe in law.\r\n</b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. The facts as narrated above clearly reveal that the respondents have\r\nviolated the basic human right of the petitioner and has deprived him of his\r\nproperty without following any procedure of Law.\r\n</b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>8. In view of the above, the respondents are liable to be penalized for\r\nviolating the basic human right of the petitioner and at the same time to pay\r\ncompensation of the said land at the stamp duty rate prevalent today as well\r\nas the rental compensation for its use and occupation from the year 2017 till\r\ndate.\r\n</b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>9. Accordingly, the respondents are directed to assess and determine the\r\ncompensation of the aforesaid land payable to the petitioner at the stamp duty\r\nrate as prevalent today in the area within a period of 6 weeks and to make\r\npayment thereof within a further period of 3 months. The respondents at the\r\nsame time shall also pay token rental compensation for the use and\r\noccupation of the aforesaid land from the year 2017 till 2021 i.e., 05 years @\r\nRs. 1.00 lac per year within 3 months from today.</b></span></p><p><b>10. In addition to the above, on account of violation of the right to\r\nproperty of the petitioner which is guaranteed by the Constitution, the\r\nrespondents are directed to pay special penalty of Rs. 10.00 lacs to the\r\npetitioner within a period of three months.\r\n</b></p><p><b>11. In the event, the aforesaid amounts are not paid within the time\r\nstipulated, it will be open for the petitioner to move an application and to\r\nbring it to the notice of the Court whereupon the Court will swing into action\r\nand take appropriate coercive measures against the respondents for the\r\nrealization of the aforesaid amount may be as arrears of land revenue.\r\n</b></p><p><b>12. The writ petition is, accordingly, disposed of.</b></p><p><b><span style=\"background-color: rgb(255, 255, 0);\"><i>Photo Courtesy \'\'The Indian Talks\'\'</i></span>&nbsp;</b></p>', '789dd7c9a70d4a9d6b91943784230d85.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-04', 1, '', '', '2022-07-04 17:33:50', '2022-07-04 18:19:06'),
(1900, 'AERkoAiIu5cHrJdeknZSRoblJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Interference by High Court under Article 227 possible only in case of patent perversity in the orders or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K.V. Shiraz Vs Binny Emmatty.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>O.P. (RC) 72 of 2022 decided on 1 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Anil K. Narendran and Justice P.G. Ajithkumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is the respondent-tenant in\r\nR.C.P.No.97 of 2020 on the file of the Rent Control\r\nCourt (Munsiff), Thrissur, a petition filed by the\r\nrespondent herein-landlord under Section 11(2)(b) of\r\nthe Kerala Buildings (Lease and Rent Control) Act,\r\n1965, seeking eviction of the tenant from the petition\r\nschedule building on the ground of arrears of rent. In\r\nthat Rent Control Petition, the landlord filed I.A.No.2 of\r\n2021, an application under Section 12 of the Act,\r\nseeking an order directing the tenant to remit admitted\r\narrears of rent and continue to pay rent for the\r\nsubsequent period, during the pendency of that eviction\r\nproceedings. Despite receipt of notice, the tenant did\r\nnot appear before the Rent Control Court. On\r\n12.11.2021, the tenant was set exparte. Thereafter, on\r\n20.11.2021, the Rent Control Court allowed I.A.No.2 of\r\n2021, by directing the tenant to pay the admitted\r\narrears of rent within a period of four weeks from that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">order, which is one passed under Section 12(1) of the\r\nAct. On 14.12.2021, the Rent Control Court recalled\r\nthat order on noticing that the order dated 20.11.2021\r\nin I.A.No.2 of 2021 was one passed in the absence of\r\nthe respondent.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2. As borne out from the pleadings in this\r\noriginal petition, on coming to know about the order\r\ndated 20.11.2021 of the Rent Control Court in I.A.No.2\r\nof 2021, the tenant filed a copy application for obtaining\r\ncertified copy of that order. That application was not\r\nconsidered, since none has filed vakkalath for the\r\nrespondent-tenant in R.C.P.No.97 of 2020. Therefore, a\r\ncounsel filed vakkalath for the respondent-tenant. On\r\n14.12.2021 the Rent Control Court recalled the order\r\ndated 20.11.2021 in I.A.No.2 of 2021, since the same\r\nhappened to be passed in the absence of the tenant and\r\nlisted the matter to 21.12.2021, for counter. On\r\n21.12.2021 and thereafter on 03.01.2021 there was no\r\nrepresentation for the tenant. On 05.01.2022, the Rent\r\nControl Court passed Ext.P4 order, whereby I.A.No.2 of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2021 stands allowed under Section 12(1) of the Act, by\r\ndirecting the tenant to deposit admitted arrears of rent\r\nfor the period from July, 2019, with 6% interest per\r\nannum from the date of default till the date of petition,\r\nwithin a period of four weeks from the date of that\r\norder. Though the name of the counsel who filed\r\nvakkalath for the tenant is shown in the headnote of\r\nExt.P4 order, a reading of the said order would make it\r\nexplicitly clear that, on 05.01.2022 the tenant was not\r\nrepresented by counsel and the Rent Control Court\r\npassed that order after hearing the counsel for the\r\nlandlord.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The issue that arises for consideration in this\r\noriginal petition is as to whether any interference is\r\nwarranted on Ext.P4 order dated 05.01.2022 of the\r\nRent Control Court in I.A.No.2 of 2021 in R.C.P. No.97\r\nof 2020, which is one issued by the Rent Control Court\r\ninvoking the provisions under Section 12(1) of the Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Section 12 of the Act deals with payment or\r\ndeposit of rent during the pendency of proceedings for\r\neviction. As per Section 12(1), no tenant against whom\r\nan application for eviction has been made by a landlord\r\nunder Section 11, shall be entitled to contest the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">application before the Rent Control Court under that\r\nSection, or to prefer an appeal under Section 18 against\r\nany order made by the Rent Control Court on the\r\napplication, unless he has paid or pays to the landlord,\r\nor deposits with the Rent Control Court or the Appellate\r\nAuthority, as the case may be, all arrears of rent\r\nadmitted by the tenant to be due in respect of the\r\nbuilding up to the date of payment or deposit, and\r\ncontinues to pay or to deposit any rent which may\r\nsubsequently become due in respect of the building,\r\nuntil the termination of the proceedings before the Rent\r\nControl Court or the Appellate Authority, as the case\r\nmay be. As per Section 12(2), the deposit under subsection (1) shall be made within such time as the court\r\nmay fix and in such manner as may be prescribed and\r\nshall be accompanied by the fee prescribed for the\r\nservice of notice referred to in sub-section (4). As per\r\nthe proviso to Section 12(2), the time fixed by the court\r\nfor the deposit of the arrears of rent shall not be less\r\nthan four weeks from the date of the order and the time </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">fixed for the deposit of rent which subsequently accrues\r\ndue shall not be less than two weeks from the date on\r\nwhich the rent becomes due. As per Section 12(3) of\r\nthe Act, if any tenant fails to pay or to deposit the rent\r\nas aforesaid, the Rent Control Court or the Appellate\r\nAuthority, as the case may be, shall, unless the tenant\r\nshows sufficient cause to the contrary, stop all further\r\nproceedings and make an order directing the tenant to\r\nput the landlord in possession of the building. As per\r\nSection 12(4), when any deposit is made under subsection (1), the Rent Control Court or the Appellate\r\nAuthority, as the case may be, shall cause notice of the\r\ndeposit to be served on the landlord in the prescribed\r\nmanner, and the amount deposited may, subject to such\r\nconditions as may be prescribed, be withdrawn by the\r\nlandlord on application made by him to the Rent Control\r\nCourt or the Appellate Authority in that behalf.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The liability of a tenant under Section 12(1) of\r\nthe Act, against whom an application for eviction has\r\nbeen made by a landlord under Section 11, or who prefer an appeal under Section 18 of the Act, against\r\nany order made by the Rent Control Court on an\r\napplication made by a landlord under Section 11, is\r\nlimited to all arrears of rent admitted by the tenant to\r\nbe due in respect of the building, up to the date of\r\npayment or deposit, and he shall continue to pay or\r\ndeposit any rent which may subsequently become due\r\nin respect of the building, until the termination of the\r\nproceedings before the Rent Control Court or the\r\nAppellate Authority, as the case may be.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. The object of the provisions of Section 12(1)\r\nof the Act is to deny the defaulting tenant the right to\r\ncontest the application for eviction before the Rent\r\nControl Court, or to prefer an appeal under Section 18\r\nof the Act against any order made by the Rent Control\r\nCourt on an application made by a landlord under\r\nSection 11, unless he pays to the landlord, or deposits\r\nwith the Rent Control Court or the Appellate Authority,\r\nas the case may be, all arrears of rent admitted by him\r\nto be due in respect of the building, up to the date of payment or deposit, and continues to pay or to deposit\r\nany rent which may subsequently become due in\r\nrespect of the building, until the termination of the\r\nproceedings before the Rent Control Court or the\r\nAppellate Authority, as the case may be.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Section 12(2) of the Act enjoins a tenant to\r\ndeposit the admitted rent under sub-section (1), within\r\nsuch time as the court may fix and in such manner as\r\nmay be prescribed. The time fixed by the court for the\r\ndeposit of the arrears of rent and the time fixed for the\r\ndeposit of rent which subsequently accrues due shall\r\nnot be less than that specified in the proviso to Section\r\n12(2). As per the statutory mandate of Section 12(1),\r\non an application filed by the landlord under Section </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12,\r\nthe Rent Control Court or the Appellate Authority, as the\r\ncase may be, has to order payment or deposit of\r\narrears of rent admitted by the tenant to be due in\r\nrespect of the petition schedule building, up to the date\r\nof payment or deposit and the tenant shall also be\r\ndirected to continue to pay or deposit any rent which may subsequently become due in respect of the\r\nbuilding, until the termination of the proceedings before\r\nthe Rent Control Court or the Appellate Authority,\r\nregardless of the relief sought for in that application.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. In the instant case, the petitioner-tenant has\r\nnot chosen to contest the Rent Control Petition by filing\r\ncounter. The tenant has not even filed an application to\r\nset aside the order dated 11.02.2021 in R.C.P.No.97 of\r\n2020, whereby he was set exparte. On 04.12.2021, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rent Control Court recalled the order dated 12.11.2021\r\nin I.A.No.2 of 2021, since the same happened to be\r\npassed in the absence of the tenant. However, the order\r\ndated 12.11.2021 in R.C.P.No.97 of 2020, whereby the\r\ntenant was set exparte, is not yet recalled. When the\r\ntenant has not chosen to contest R.C.P.No.97 of 2020\r\nand continues to be exparte, the Rent Control Court\r\ncommitted a manifest error in passing an order in\r\nI.A.No.2 of 2021, invoking the provisions under Section\r\n12(1) of the Act.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>14. In K.V.S. Ram v. Bangalore Metropolitan\r\nTransport Corporation [(2015) 12 SCC 39] the\r\nApex Court held that, in exercise of the power of\r\nsuperintendence under Article 227 of the Constitution of\r\nIndia, the High Court can interfere with the order of the\r\ncourt or tribunal only when there has been a patent\r\nperversity in the orders of the tribunal and courts\r\nsubordinate to it or where there has been gross and\r\nmanifest failure of justice or the basic principles of\r\nnatural justice have been flouted.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. In Sobhana Nair K.N. v. Shaji S.G. Nair\r\n[2016 (1) KHC 1] a Division Bench of this Court held\r\nthat, the law is well settled by a catena of decisions of\r\nthe Apex Court that in proceedings under Article 227 of\r\nthe Constitution of India, this Court cannot sit in appeal\r\nover the findings recorded by the lower court or tribunal\r\nand the jurisdiction of this Court is only supervisory in\r\nnature and not that of an appellate court. Therefore, no\r\ninterference under Article 227 of the Constitution is\r\ncalled for, unless this Court finds that the lower court or\r\ntribunal has committed manifest error, or the reasoning\r\nis palpably perverse or patently unreasonable, or the\r\ndecision of the lower court or tribunal is in direct conflict\r\nwith settled principles of law.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. Viewed in the light of the law laid down in the\r\ndecision referred to supra, we find no reason to sustain\r\nExt.P4 order dated 05.01.2022 in I.A.No.2 of 2021 in\r\nR.C.P.No.97 of 2020, since the Rent Control Court\r\ncommitted a manifest error while passing such an order,\r\ninvoking the provisions under Section 12(1) of the Act.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In the result, this original petition is allowed by\r\nsetting aside Ext.P4 order dated 05.01.2022 in I.A.No.2\r\nof 2021 in R.C.P.No.97 of 2020.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\" style=\"background-color: rgb(255, 255, 0);\"><i style=\"\"><b>Photo Courtesy. Timestravel</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5a1e67d2518baa033fbaff42e71449fe.jpg', '7d0741de3692bc280c6753f80d2bce76.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-05', 1, '', '', '2022-07-04 18:27:18', '2022-07-05 06:25:50'),
(1901, 'qS0GCuUKFaWRbwVHN1lh1LEca', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. Doctrine of sameness does not apply when the complainants are different and there is no certainty of time and period. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Prabhunaika K.T Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 2015 of 2022 decided on 21 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is before this Court calling in question proceedings in Crime all registered for offences punishable under Section 354A of the IPC and Sections 10 and 12 of the Protection of Children from Sexual Offences Act, 2012 (‘Act’ for short) except in Criminal Petition No.1729 of 2022 where Sections 8, 10 and 12 of the Act 2008 are invoked; in Criminal Petition No.2008 of 2022 where Sections 8 and 10 of the Act are invoked and in Criminal Petition No.2113 of 2022 where Sections 8 and 10 of the Act are invoked, in addition to the IPC section. Since common facts and grounds are urged, all these petitions are clubbed together and heard.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Brief facts leading to the filing of the present petitions, as borne out from the pleadings are as follows: The petitioner who is common in all the petitions is a Physical Education Teacher in KPS School at N.R.Pura. A colleague of the petitioner who also works as a teacher in the same school submits a report against the petitioner that he has behaved in an uncivilized manner with the girl students and has sexually harassed them. This report was submitted to the BEO of N.R.Pura who in turn makes a complaint to the N.R.Pura Police Station where the crime is registered in Crime No.4 of 2022. The petitioner has not challenged the registration of this Crime No.4 of 2022 and it is pending before the jurisdictional Sessions Court with bail granted to the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Having come to know the registration of crime No.4 of 2022 against the petitioner, the parents of the students having learnt sexual assault against their children registered crimes on different dates against the petitioner which resulted in FIRs. The allegation against the petitioner is that he was indulging in sexual harassment against those students. It is for that reason crimes for offences punishable under Section 354A of the IPC and Sections 8, 10 and 12 of the Act were alleged against the petitioner. The matters are pending consideration before the Additional District and Sessions Judge, FTSC-1, Chickmagalur. After registration of the FIR in Crime No.4 of 2022 which was first in the line and on commencement of investigation, successive FIRs are registered against the petitioner for the same offence, by parents of different students. It is those FIRs that are registered against the petitioner for the same offence, by different complainants, that are called in question in these cases. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The learned counsel appearing for the petitioner, in all these cases, would contend with vehemence that on the same incident in respect of which a case has already been registered and investigation is underway, successive FIRs could not have been registered and fresh investigation would not have been ordered thereto for the same offence. It is submitted that it would violate the fundamental right of the accused. The learned counsel places reliance upon several judgments of the Apex Court to buttress his submission on that score and seeks quashment of multiple FIRs and retention of only one FIR in Crime No.4 of 2022 in which, investigation is underway. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. On the other hand, the learned High Court Government Pleader would refute the submissions to contend that the complaints registered against the petitioner are by different complainants and, therefore, different FIRs are registered and as such, no fault can be found in the action of the Police in registering different FIRs, in the peculiar facts of these cases and would submit that the matter is still in the stage of investigation and seeks dismissal of the petitions.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. The petitioner functions as a Physical Education Teacher in KPS School. Alleging that the petitioner has committed offences punishable under Sections 8, 10 and 12 of the Act and Section 354A of the IPC, a report was made by a colleague of the petitioner which ultimately becomes the basis for a FIR in Crime No.4 of 2022. This is the first of the FIRs so registered against the petitioner. After registration of the said crime, several complaints were made by parents of the respective children who have been subjected to sexual assault by the petitioner.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. To consider the submission of the learned counsel for the petitioner it is germane to notice few of the complaints registered by the parents of the children against the petitioner. On a perusal of the complaints so registered, it reveals that the incident had not happened on a single day. In one of the complaints the allegation is that, the petitioner has indulged in such sexual assault on the child for the last one month and in the other complaint for the last two months and in few of the complaints for the last three months. There is no date indicated for the alleged offence. The allegation is common but dates are different. Therefore, it cannot be said that for a solitary incident on a solitary date multiple FIRs are registered.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. The crime committed by the petitioner against each individual student is complained of by their parents and the incidents spans over one month to three months. Every fact or facet that is necessary for investigation in each case may vary, as the complainant is entitled to produce such evidence, instance of which has happened on a particular day against her by the petitioner which would become offence punishable under Sections 8, 10 and 12 of the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. It would have been an altogether different circumstance if all the complaints, though they look same would complain of an incident of a particular day. Every complaint varies in the period. As observed hereinabove, it varies from one month to three months. No complaint narrates incident of a particular day. They indicate that all the incidents have happened not on a particular day or a particular time of a particular day, though the accused in all these cases is common i.e., the petitioner. The victims in all these cases are not common but are different. The period of such offence ranges from 1-09-2021 to 3-01-2022 and first of the complaint is registered on 15-01-2022 in Crime No.4 of 2022. With no certain time and period and the complainants being different, the contention of the learned counsel appearing for the petitioner that the same is hit by doctrine of sameness is unacceptable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. The judgments relied on by the learned counsel for the petitioner to buttress his submission are all cases where on a solitary incident multiple FIRs were registered. The incidents in the cases at hand, as observed hereinabove, are not solitary. Therefore, every victim who has been subjected to such sexual assault from the hands of the petitioner has complained and the complaints are of different dates, instances vary from period to period and not of a specific date. Therefore, registration of crimes in multiple FIRs against the petitioner, in the peculiar facts of these cases, cannot be found fault with. It is for the petitioner to defend himself for the alleged acts against each of the victim. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. The further contention of the petitioner that out of spite or ill-will by people who are inimical towards him in the institution these complaints are generated or brought up by luring the parents of such harassment is required to be noticed only to be repelled, as it is, to say the least, preposterous, as no parent would come forward and without any rhyme or reason register complaint against the petitioner that too alleging that her child has been sexually abused. It is too far-fetched for this Court, at this juncture, to even consider the said submission of the learned counsel for the petitioner. Spite or ill-will against him by other teachers of the institution cannot mean that those who are inimical towards the petitioner want to shoot him from the shoulder of a child through its parents. Such arguments cannot be accepted. Therefore, the impugned actions brought before this Court, in these cases, do not warrant any interference. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">1</font></span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">4.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">For the aforesaid reasons, all these petitions lack any merit and are accordingly dismissed. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b>It is made clear that the observations made in the course of this order are only for the purpose of consideration of the case of petitioner under Section 482 of Cr.P.C. and the same shall not bind or influence the proceedings pending before learned Sessions Judge. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b>In view of dismissal of the petitions, pending applications also stand disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '41de3fd372996d4812c358d538ec6626.jpeg', '901433dfa992390b57eab3c353923bb4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-05', 1, '', '', '2022-07-05 00:48:36', '2022-07-05 13:56:41');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1902, '1LXgga8zTbdDr8H28OegK2Skm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Validity of a trademark cannot be questioned in the infringement proceedings more so when it is old and established and well-known trademark. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Glaxo Group Ltd and another Vs Sunlife Sciences Pvt Ltd<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CS (OS) 331 of 2010 decided on 6 October 2010.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V.K. Shali.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Briefly stated the facts of the case are that the plaintiff no.1 M/s Glaxo Group Ltd. & Anr. is the company incorporated <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under the laws of United Kingdom having its registered office at Glazi Wellcome House, Berkeley Avenue, Greenford, Middlesex UB6, ONN, United Kingdom. Mr.Rahul Sethi is the constituted attorney of plaintiff no.1 and is duly authorized to verify pleadings and institute the present suit.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3. Plaintiff no.2 M/s Smithkline Beecham Ltd. is a company organized and existing under the laws of United Kingdom having its registered office at 980, Great West Road, Brentford, Middlesex TW8 9GS, United Kingdom. Mr.Rahul Sethi is the constituted attorney of plaintiff no.2 and is duly authorized to verify pleadings and institute the present suit.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. Plaintiff no.3 M/s Glaxo Smithkline Pharmaceuticals Ltd. (hereinafter referred to as ‘GSK Pharma’) is a company incorporated under the Indian Companies having its registered office at Dr.Annie Besant Road, Worli, Mumbai400030. Mrs.Sree.K.Patel, Vice President, Legal and Corporate Affairs, of plaintiff no.3 is the duly authorized to sign and verify the pleadings and institute the present suit on behalf of plaintiff no.3.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. All the three plaintiffs are the members of the Glaxo Smithkline group of companies which is part of the company. They have filed the present suit for permanent injunction restraining infringement of the trademark, passing off, infringement of copyright, damages, delivery up against a company by the name of M/s Sun Life Sciences Pvt. Ltd. having its office at 104, Shanti Sadan, Serpentine Road, Kumara Park, West, Bangalore-560202.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The allegations in brief are that the plaintiff is a wellknown pharmaceutical company which has invented various trade names under which it sells its pharmaceutical formulations. In the instant case, they are claiming that they have invented three well-known trademarks known as BETNOVATE and BETNOVATE-C, CROCIN and ZINETAC/ZANTAC. It is alleged that the defendants in a deceptive manner have been getting and adopting the said trademarks and the trade dress and are marking their pharmaceutical formulations by the brand name of B-NATE-C, CORSUN and ZEETAK which is deceptively similar in not only color scheme and get up and layout but also phonetically, so as not only to violate the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">statutory rights of the plaintiff but also cause confusion in the minds of the general public by selling deceptively similar products.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. That briefly stated the arguments which were advanced on behalf of the plaintiff for grant of ad interim stay against the defendants were based on the following submissions:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) It was claimed by the plaintiff that they had invented all the three trademarks which are registered and protected for several years. Their validity during this period has remained unchallenged and consequently, the same cannot be challenged or questioned in the present infringement proceedings by the defendants.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) That while considering the application for grant of ad interim injunction, the Court has to take into account the cardinal principal that the trademark or the trade dress of the plaintiff is to be seen as a whole in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">comparison to the impugned trademark or the trade dress which is stated to be violating the statutory rights of the plaintiff.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(iii) The splitting of the trade mark in the case of infringement is not permissible except in cases where the trademark has any significance pertaining to the ailment in question for which it gives treatment or the compound or the basic element in question.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(iv) While considering the balance of equities of the respective sides, the compelling public interest will outweigh the considerations which may be set up as a defence by the defendants. If from the facts of a given case, it is shown that there is malafide adoption and no explanation for adoption is given by the defendants in an infringement case, the injunction must follow.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The learned counsel for the defendants in support of his case had refuted the contention of the plaintiffs by urging that there is no similarity between the trademarks of the plaintiff and the defendants. It was stated that the spellings as well as trade dress, visually and phonetically <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appear to be different. The second submission urged by the learned counsel was regarding the maintainability of the very suit itself.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>10. It was contended by the learned counsel that the defendant was that the suit has not been properly instituted and therefore, if the suit itself has not been properly instituted and is liable to be rejected then the very question of grant of ad interim stay in favour of the plaintiff would not arise. Reliance in this regard was placed by the plaintiff on a judgment of the Division Bench of this Court in case titled Electric Construction and EQU. Co. Ltd. Vs. Jagjit Works 30 (1986) DLT 525 wherein it has been held that the power of attorney which is relied by a company must be not only notarized but also have an authentication from the notary before a presumption under Section 85 of the Evidence Act could be drawn in favour of the validity of the power of attorney authorizing the valid institution of the suit.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. A perusal of the aforesaid provision would show that in case of registered trademark, the plaintiff, who is alleging infringement of its trademark has been given a right to institute the suit at a place where it is doing business which under normal Civil Law under Section 20 CPC is at the place where the defendant resides, works for gain or carries on business or where the cause of action in whole or in part has arisen. To that extent, the aforesaid Section is a modification or addition or can be read as a proviso to normal law conferring the jurisdiction on a Court. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. In case titled Haryana Financial Corp. & Anr. Vs. Jagdamba Oil Mills & Anr., AIR 2002 SC 834, the Supreme Court has very categorically laid down that while applying the law enunciated in the particular case, the Court should not act mathematically and the law which is laid down in the reported case should not be applied like theorems. The facts of the reported judgment in Electric Construction company case (supra) must be seen in the light of these facts. The reasons for distinguishing the facts of that case have been given herein before, which was primarily the nature of the suit as well as the fact that the said suit was being decided finally on merits while as in the instant case Court has to decide the application under Order XXXIX Rules 1 and 2 CPC only at this stage. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">23. The defendant has not raised any despite about the fact that the three trade marks namely BETNOVATE-C, CROCIN AND ZINETAC/ZANTAC are the the trade marks invented by the plaintiff at different times in the past years. These marks have, on account of their past user, attained some distinctiveness and are identified with the plaintiffs. The plaintiff in its plaint has given details of its adoption in different years over the past four decades along with the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">registration nos. from the Indian Trade Mark Registrar. It has also shown the details of couple of cases of Indian Courts to buttress its claim that these trade names have been recognized by the Courts to be associated with the plaintiff and have been duly protected by them.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">24. The trade mark CROCIN was adopted worldwide by the plaintiffs in the year 1963 and in the year 1996, in India. The trade mark ZANTAC has been adopted in India in the year 1978 and ZINETAC in 1983. The trade mark BETNOVATE-C was adopted worldwide and in India in 1963. The said trademarks are registered vide registration numbers ZINETAC/ZANTAC (382567, 441253, 340194), BETNOVATE (219258) and CROCIN (389215, 389216, 451516, 451517, 474068, 59939, 75346, 937161, 713184, 713191, 71385, 713186, 713183). The validity of the trade marks cannot be questioned in the infringement proceedings and more so when it is old and established and well known trademarks. All these trademarks are totally invented trademarks by the plaintiffs and after their persistent user for the last more than four decades, the said trademarks have become highly distinctive to be</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">identified with the plaintiff’s products. The said trade marks are enforced by this Court in various proceedings and the products bearing the said trademarks are purchased by the respective consumers as household drugs. Such kind of inherent distinctiveness in the trademarks coupled with staggering and voluminous user makes it evident that the said trademarks are highly distinctive to the plaintiffs and none else.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. Keeping in view the aforesaid facts and circumstances, I am of the view that the plaintiff has got prima facie very good case and that the balance of convenience is also in favour of the plaintiff and that irreparable loss will be caused to the plaintiff in case the defendants are not restrained by way of an ad interim injunction from using the deceptively similar trademarks/trade dress in respect of BETNOVATE, CROCIN AND ZINETAC.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. I accordingly, by virtue of the present order, restrain the defendant from manufacturing, selling, trading the three pharmaceutical preparations ZEETAK, B-NATE-C AND CORSUN and also from using deceptively similar trade dress to BETNOVATE, CROCIN and ZINETAC during the pendency of the suit. However, the expression of an opinion hereinbefore may not be treated as an expression on the merits of the case.</b></p>', 'bc62d6ff6532893c041e08bd3a6218ac.jpeg', '904be79ae73b6d6d408e063875d2378b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-05', 1, '', '', '2022-07-05 00:50:15', '2022-07-05 19:49:37'),
(1907, 'GudwNeB6sfBo2i8T71uyGNtDc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque bounce case. Directors/Chairman of a company cannot claim that they are not privy to the transaction between the accused and the complainant when the complaint clearly narrates their role in the transaction. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S OMR Investments LLP and others Vs Pardhanani Chatrabhuj Bassarmal.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 8225 of 2022 decided on 4 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioners are before this Court calling in question proceedings in C.C.No.9809 of 2022 pending before the XXI Additional Chief Metropolitan Magistrate at Bengaluru and consequently to quash the complaint that led to registration of Crime in the aforementioned criminal case instituted for offences punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘the Act’ for short). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Accused No.1/1st petitioner - OMR Investments LLP (for short ‘the Firm or Company’) is a limited liability partnership firm engaged inter alia in the business of construction and development of real estate. Accused No.3/Petitioner No.2 is a partner of petitioner No.1/Firm and accused No.7/petitioner No.3 is one of the authorized signatories of petitioner No.1/Firm. The petitioners in the companion petition i.e., W.P.No.8227 of 2022 are accused Nos. 2, 5 and 6. Therefore, accused 1, 2, 3, 5, 6 and 7 are before this Court barring accused No.4. The complainant/ respondent is common in both these petitions. Both these cases arise out of C.C.No.9809 of 2022 which arose out of the complaint in P.C.R.No.5711 of 2022 registered by the complainant. It is, therefore, both these cases are taken up together and considered in this order. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Shorn of unnecessary details, facts in brief that are germane for consideration of the lis, are as follows: The 1st petitioner/Firm is a limited liability Company and the other petitioners are connected with the affairs of the Company in the capacity of either Directors or signatories of the partnership firm or signatories to the instruments involved in the transaction. It is the case of the complainant that a proposal was given that Embassy Company would execute a memorandum of understanding and a co-development agreement in respect of property development of an immovable property belonging to Embassy Company situated in the Special Economic Zone and a request was made to the complainant to reinvest the amounts that he would receive by sale of the aforesaid equity shares in the project for which the complainant would become the absolute owner. It appears, that a meeting of the Board of Directors of the Embassy Company was held on 21.10.2016 and the proposal given by the Embassy Company to the complainant was discussed and the result of the discussion was execution of a share purchase agreement between the Company and the complainant regarding sale of equity shares of the complainant in M/s Mac Charles (I) Limited for the very amount that is arrived at in the share purchase agreement. The amount was received by the complainant to his account. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Once the amount was received from the sale of equity shares of M/s Mac Charles (I) Limited, the Embassy Company came up with the property development scheme that was evolved by the Company after the approval of the Board. A draft Memorandum of Understanding, draft construction agreement, a draft co-development agreement and a draft lease deed were all approved by the Board of Embassy Company and the said Company also represented to the complainant that the said immovable property situated in the special economic zone needed necessary approvals from the Ministry of Commerce, Government of India and further necessary approvals to co-opt the complainant as a co-developer of the said immovable property. In furtherance of this agreement, certain transactions took place between the parties and subsequently on 6-12-2016, two supplementary documents styled as loan agreements were entered into between accused No.1’s firm represented by accused Nos.2 and 3 and the complainant for a sum of Rs.490/-crores which was to be invested in the property development scheme. Accused No.2 is said to have executed a deed of guarantee in favour of the complainant guaranteeing the entire transaction and being bound by the said transaction. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The complainant claims that based on all the above assurances and promises given by the Embassy Company, the complainant transferred the amount afore-quoted in three installments. Since the amount was legally transferred by the complainant to accused No.1’s firm and later by the firm to the Embassy Company as Inter-Corporate Debt, accused No.2 before the promoter Director of the Embassy Company and Managing Partner of the Firm represented to the complainant that reversal or refund of the amount that the complainant had paid had to take place only through the 1st accused/Firm and the 2nd accused suggested drafting a fresh supplementary document styled as loan agreement which would be executed by the Firm favouring the complainant for refund of Rs.390/- crores and would also refund Rs.10/- crores in due course to the complainant in installments. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The loan agreement was executed between the Firm, the complainant and the authorized signatory accused No.7. In terms of the agreement, accused had agreed to repay the said amount with interest within 12 months and the 2nd accused also executed a fresh deed of guarantee in favour of the complainant along with post dated cheques for Rs.390/- crores favouring the complainant. The details of the post-dated cheques issued are a part of the complaint. They vary from 5-11-2021 and 31-05-2022. When time arose for presentation of these cheques and were presented, all of them were dishonoured for ‘want of sufficient funds’. The complainant took up legal proceedings by causing legal notices upon the accused, after the accused replied to the same, complainant registers a crime invoking Section 200 of the Cr.P.C. in P.C.R.No.5711 of 2022. This is the broad skeleton of transaction between the parties, as is pleaded in the complaint. Further intricate narration of details of transactions between the parties would not be necessary at this juncture, for consideration of the issues that are brought up by the accused before this Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">7. A private complaint was registered through a Special Power of Attorney holder of the complainant as the complainant resides in Dubai  and is  80 years old. The complainant was examined by the learned Magistrate on 24-03-2022 by receiving his affidavit as a sworn statement, takes note of 75 documents Exs.P1 to P75, marks them and posts the matter for orders, takes cognizance of the offence on 24-03-2022 and issues summons. It is this order of the learned Magistrate that drives the petitioners/accused to this court in both these petitions.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. I have given my anxious consideration to the submissions  made  by  the  respective  learned  counsel appearing for the parties and in furtherance whereof, the following issues would arise for my consideration:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space: pre;\">	</span>Whether the complaint filed by the special Power of Attorney holder of the complainant was maintainable in the teeth of the facts in the case at hand?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space: pre;\">	</span>Whether the order taking cognizance is vitiated on account of it not being preceded with recording of sworn statement?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space: pre;\">	</span>Whether the cheques issued as security as contended would come within the ambit of Section 138 of the Act?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv)<span style=\"white-space: pre;\">	</span>Whether the Chairman or Directors of the Company can be hauled into these proceedings involved in a transaction of mammoth proportion? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">Issue No.1: (i) Whether the complaint filed by the special Power of Attorney holder of the complainant was maintainable in the teeth of the facts in the case at hand?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. To consider the issue whether the complaint was maintainable at the hands of a Power of Attorney holder qua the contentions of the learned senior counsel that it did not contain the narration that he was completely aware of the facts, it is necessary to notice the Power of Attorney and the preamble to the complaint. Document No.1 that is appended to the complaint is the Power of Attorney. A reading of the Power of Attorney in tandem  with  the  second  paragraph  of  the  complaint (supra) would clearly indicate that the Power of Attorney holder was aware of the transaction and was fully conscious of what he was deposing and to what he is required to represent. Since the entire Power of Attorney was appended to the complaint and the complaint did mention that the Power of Attorney itself was appended, it is deemed to be treated as part and parcel of the complaint. Therefore, the contention of the learned senior counsel that the complaint itself was not maintainable, holds no water. The learned senior counsel places reliance upon the judgment in the case of A.C.NARAYANAN (supra) to contend that the complaint is in utter violation of the dictum of the Apex Court and has to be obliterated is unacceptable for the observations made hereinabove that the complaint did contain all the necessary ingredients for its maintainability.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In the light of subsequent Three Judge Bench decision, considering the case of A.C.NARAYANAN and observing as afore-quoted, the first sheet anchor of the learned senior counsel is rendered unacceptable, as the complaint does satisfy the requirements of A.C.NARAYANAN as considered in TRL KROSAKI REFRACTORIES LIMITED. I hold the first issue against the petitioners to the effect that the complaint did narrate what is noted to be narrated and accordingly the complaint was maintainable.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Issue No.2: (ii) Whether the order taking cognizance is vitiated on account of it not being preceded with recording of sworn statement? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>The learned Magistrate accepts the sworn statement of the complainant through the affidavit and that through his counsel. This was considered to be examination of PW-1 and looks at Exs.P1 to P75, marks them and passes order on the same day, as afore-quoted, taking cognizance and issuing summons. The issue now is whether the sworn statement first being taken, then cognizance and issuing summons would amount to putting the cart before the horse and resultantly vitiating the entire proceedings on account of such procedural irregularity. The learned senior counsel has placed reliance upon judgment of this Court in the case of D.P.SHARMA v. C.R.GOWDA2 to contend that if the order taking cognizance is preceded by recording of sworn statement, it is an incurable procedural irregularity.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Except jurisdictional issues, Section 460 of the Cr.P.C. renders infirmities curable, as the section deals with irregularities which do not vitiate proceedings and irregularities which vitiate proceedings. Clause (e) of Section 460 deals with taking of cognizance under clause (a) or clause (b) of Sub-section (1) of Section 190 under which cognizance is taken and summons is issued in the case at hand. The effect of Section 460 is considered by the Three Judge Bench of the Apex Court in the case of PRADEEP S. WODEYAR v. STATE OF KARNATAKA in which clause (e) of Section 460 is considered and held that such irregularities would not vitiate the proceedings.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><br></font>In the light of the very provision i.e., Section 460 of the Cr.P.C. and its interpretation by the Apex Court in the case of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">PRADEEP  </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">S. WODEYAR, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as also </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">judgments rendered by the Co-ordinate Bench of this Court, which are subsequent to the judgments relied on by the learned senior </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">counsel, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">issue </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">has </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">arisen </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">my consideration is answered against the petitioners, holding that putting the cart before the horse, in all circumstances cannot be a panacea to the accused to contend that the entire proceedings stand vitiated. At best, it is an irregularity which would not impede fair trial to the accused or to the complainant. Hyper-technicalities in the form of irregularities cannot override substantive justice. Thus, fails the second sheet anchor. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Issue No.3: (iii) </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Whether the cheques issued as security as contended would come within the ambit of Section 138 of the Act? </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">14.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; white-space: pre;\">	</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The said issue is, whether cheques issued as security, in all circumstances, can claim immunity from proceedings under Section 138 of the Act. The contention of the learned senior counsel that post-dated cheques were issued as security and the submission of the learned counsel for the respondent that they were not, is a matter for trial which would involve serious disputed questions of fact. Insofar as the argument that they are issued as a security, at this juncture, would take away the right of the </span>complainant to contend that it is not before the trial, by producing such evidence. Cheques being issued as security or otherwise are always a matter of trial.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>In the light of the judgments rendered by the Apex Court (supra), the contention of the learned senior counsel that cheques were issued only as security and they are not against any legally recoverable or enforceable debt, again does not hold water, as the Apex Court clearly holds that these are disputed questions of fact and have to be tried in a full blown trial. The question of interference under Section 482 of the Cr.P.C. would not arise at the threshold. Therefore, issue No.3 that has arisen for consideration is answered against the petitioners. Thus, tumbles the third sheet anchor. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>Issue No.4: (iv) Whether the Chairman or Directors of the Company can be hauled into these proceedings involved in a transaction of mammoth proportion? </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>16. The contention of the learned senior counsel that the petitioners are Directors or Chairman of the Company and are not aware of the transactions and the signatories to  the  cheques  are  the  only persons  responsible  also cannot be countenanced, as the transaction is of Rs.400/-crores. A mammoth transaction of this nature being executed without passing muster through the office bearers of the Company cannot be imagined at this juncture. The Directors or the Chairman cannot claim that they are not privy to the enormity of the transaction between the accused and the complainant as the complaint clearly narrates the role of persons involved in the transaction who are made accused in the case at hand. Therefore, it becomes a matter of trial for the petitioners to come out clean, if they are not involved in the transaction at all. It would have been an altogether different circumstance if the Directors of the Company had claimed that they have resigned from the Company and that their resignations were demonstrable by production of public documents before this Court. This is not the submission of the petitioners before this Court. By mere statement that the Directors were not involved in the transaction cannot at this juncture be accepted, when they are being put to trial and the contention being tested on the basis of examination or cross-examination in the trial.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>In the light of the judgment rendered by the Apex Court in the case of ASHUTOSH ASHOK PARASRAMPURIYA and as a result of disputed questions of fact being the crux of the issue, the issue No.4 that falls for my consideration is also answered against the petitioners. Thus, crashes the fourth sheet anchor. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>17. Therefore, none of the contention of the learned senior counsel appearing for the petitioners would merit any acceptance and the armory from the arsenal of the learned senior counsel by way of authorities are either inapplicable to the facts of the case or, are unacceptable. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>18. For the praefatus reasons, the Writ Petitions lack merit and consequently meet their dismissal. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0ca78442b6f7f2e9fb07510c60cd7682.jpg', 'a0aa414776873942b61934f0e08f067d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-05', 1, '', '', '2022-07-06 00:38:14', '2022-07-09 00:31:47'),
(1908, 'u2ntQqAc5HYTyzYrqEjahBZVD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Once parties acknowledge existence of arbitration clause, Court can appoint arbitrator even if stamp duty is insufficiently paid. Karnataka High Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Tanuja Sachin Gadagil and others Vs Expat Projects and Development Private Limited and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Miscellaneous Petition 268 of 2019 decided on 6 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B.M. Shyam Prasad.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioners, who have entered into agreement of sale dated 16.10.2014 for purchase of the land and property, seek appointment of a Sole Arbitrator to enter reference of the dispute between the petitioners and the respondents relying upon Clause 14 of the aforesaid agreement which provides that dispute arising out of this agreement shall be referred to a Sole Arbitrator with the proceedings being held at Bengaluru and in terms of the provisions of the Arbitration and Conciliation Act 1996 (for short, ‘the Arbitration Act’). The learned counsel for the petitioners and the learned counsel for the respondents, are heard.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The learned counsel for the petitioners submits that:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.1. The petitioners have entered into the said agreement for purchase of a plot in  the  property promoted by the first respondent in terms of an arrangement concluded by this respondent with the other respondents. The petitioners have paid all the agreed amounts except for the last payment and there is no default. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.2. The petitioners have invoked the Arbitration Clause with the issuance of notice dated 18.03.2019 calling upon the respondents to agree to the petitioners’ nominee Arbitrator to enter reference of the dispute as the Sole Arbitrator; the respondents have not responded to the same. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.3. Due to a reasonable apprehension, the petitioners have filed an application under Section 9 of the Arbitration Act before the jurisdictional Court and the original of the agreement of sale dated 16.10.2014 is filed in such proceedings which are pending even as of the date. The petitioners have thus established all the necessary ingredients for appointment of a Sole Arbitrator. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The learned counsel for the respondents, who do not dispute the execution of the agreement or the initiation of the proceedings under Section 9 of the Arbitration Act, submits that the petition must be rejected because firstly the original of the agreement is not furnished; secondly, the agreement of sale dated 16.10.2014 is not duly stamped; thirdly the notice for commencement of arbitration proceedings viz., legal notice dated 18.03.2019 is addressed only to the first respondents and not to the others. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. However, the learned counsel for the respondent cannot controvert that with the original being produced in the proceedings under Section 9 of the Arbitration Act, the petitioners have filed certified copies issued by the concerned Court. The learned counsel is also unable to controvert that the agreement of sale dated 16.10.2014 is executed by the first respondent on behalf of the other respondents and this prima facie shows that the notice to the first respondent would suffice as notice to the respondents. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Further, the question of sufficiency of the stamp duty may not deter disposal of this petition inasmuch as the question could be left open to be decided in the proceedings under Section 9 of the Arbitration Act. If the petitioners want due commencement of the arbitration proceedings, they will have to ensure that the adequate stamp duty with the necessary penalty is paid as contemplated under the Karnataka Stamp Act, 1957, if necessary after the appropriate orders in proceedings under section 9 of the Arbitration Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. It is clear from the above that the necessary ingredients for exercise of jurisdiction under Section 11 of the Arbitration Act are established and the petition could be disposed of appointing a sole arbitrator leaving open the question of sufficiency of stamp duty and the consequences, if the stamp duty paid is not sufficient, to be decided in the proceedings pending under Section 9 of the Arbitration Act. The parties have agreed for appointment of a retired District Judge as the Sole Arbitrator to enter reference of the dispute.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>[a]<span style=\"white-space:pre\">	</span>The petition is allowed;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fe6850b18a1ba1da8e69ce62b0a675c4.jpg', '520a50e3c6e502f603c120a12e0e2f39.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-07', 1, '', '', '2022-07-06 16:38:39', '2022-07-07 13:58:35');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1909, 'G2frAbFOnhDkMp4ADigT5j1mG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Application to set aside ex-parte decree. The amount of delay is not crucial but what is relevant is whether the petitioner has shown ‘sufficient cause’ for the delay and whether he was bona fide in prosecuting the suit. Telangana High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shakti Press Limited Vs Divya Paper Mills Pvt Ltd<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 772 of 2022 decided on 17 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P. Naveen Rao.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">2. Defendant filed O.S.No.287 of 2016 in the Court of the Hon’ble IX Senior Civil Judge, Ranga Reddy District, at L.B.Nagar, for recovery of Rs.14,74,118/-. Even after service of summons, petitioner failed to file a written statement within the time granted by the Court. Therefore, the Court set the petitioner Company as ex-parte on 21.10.2016. Having come to know that it was set ex-parte, petitioner filed I.A.No.73 of 2017 along with the written statement praying to set aside the ex-parte order. The said I.A., was allowed on 27.02.2018 on condition of payment of costs of Rs.200/- to the respondent. However, petitioner failed to pay the costs. Therefore, the I.A., was dismissed for default and ultimately, the suit was allowed by judgment and decree dated 20.07.2018. Petitioner contends that he came to know about the proceeding in the suit for the first time on 31.05.2019 when a person from respondent </font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">company informed that a decree has already been passed and unless the amount was paid immediately, execution proceedings would be taken up. Having realised that an ex-parte decree was passed, on 19.06.2019 petitioner filed application under Order IX Rule 13 R/w 151 of the Code of Civil Procedure (CPC). As there was delay of 303 days in filing said application, he has filed I.A.No.1264 of 2019 under Section 5 of the Limitation Act, 1963, to condone the delay in filing the said application. After detailed consideration of the matter, the trial Court declined to condone the delay and dismissed I.A.No.1264 of 2019 by order dated 08.02.2022. Hence, this revision. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">3. Learned counsel for the petitioner, sought to contend that he was not aware that his application to set aside order setting him ex-parte was rejected on the ground that costs awarded by the Court were not paid. He further asserts that his counsel has not informed about non-payment of costs and dismissal of his application. Even after the suit was decreed, the lawyer did not inform the same to petitioner and petitioner was in the dark about the proceedings going on in the trial Court and for negligence of the Lawyer, petitioner cannot suffer. He further contended that the trial Court placed reliance on an e-mail sent by the respondent counsel on 20.07.2018 informing about </span><font face=\"Calibri, sans-serif\">passing of judgment and decree. The said document could not have been relied upon by the trial Court without being marked as document in support of evidence. In support of the said contention, learned counsel also placed reliance on the circular issued by the High Court for the State of Telangana in R.O.C.No.2750/OP CELL/2021 dated 28.09.2021 and the decision of this Court in C.R.P.No.1234 of 2020. </font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. Learned counsel for the petitioner, sought to contend that liberal view has to be taken in matters of this nature and allow the parties to contest the matter on merits and the trial Court erred in not taking liberal view even though the petitioner has explained the reasons for not prosecuting the suit. In support of the said contention, learned counsel placed reliance on the decision of the Hon’ble Supreme Court in G.P.Srivastava Vs. R.K.Raizada and Others. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. Per contra, learned counsel for the respondent, submits that petitioner has to blame himself for not prosecuting the suit. From the averments in the affidavit filed in support of I.A.No.1264 of 2019 to condone delay, it is clear that petitioner has been in consistent touch with his Lawyer and therefore,</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">what is urged now is contrary to the averments said in the application. Therefore, it cannot be said that petitioner was unaware of the progress in case and he deliberately kept quiet and only after summons in execution proceedings were received, filed this application as an after thought. He also submits that even ignoring the e-mail document dated 20.07.2018, as rightly considered by the trial Court, no justification is shown by the petitioner to condone the delay. How much of delay is caused is not important but whether a person is bona fide in asserting facts before the Court is important. As noticed by the trial Court, petitioner was not bona fide in stating true facts. Therefore, the trial Court rightly refused to condone the delay. The events clearly point out that petitioner was negligent in prosecuting the suit and it is not a case where petitioner was not aware of decision in the suit. Having come to know that he was set ex-parte, he filed I.A.No.73 of 2017 and the trial Court allowed the I.A., on condition of payment of costs but petitioner failed to pay the costs and it is clear that he has to blame himself for what transpired thereafter.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The question for consideration is whether trial Court erred in dismissing the application to condone delay of 303 days in filing application to set aside ex-parte decree ?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. Scope of Section 5 of the Limitation Act and scope of power of Court to condone the delay in filing such an application was subject of consideration in plethora of precedent decisions of this Court and the Hon’ble Supreme Court. Suffice to note few land mark decisions to understand the concept of sufficient cause.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. From the precedent decisions, it is apparent that while exercising its discretion to condone delay, the Court is required to see whether delay is satisfactorily explained; there was no deliberate, wanton delay in prosecuting the litigation; litigant was not resorting to dilatory tactics; whether explanation to condone delay lacks bona fides of litigant. The Court should also keep in mind the prejudice that may be caused to decree holder. The right accrued to decree holder by lapse of time due to his own failure to prosecute legal remedy within reasonable time cannot be lightly ignored. When the delay is long, as in this case, the scrutiny is rigid and burden is heavy on the litigant to explain every aspect of his conduct and behaviour,<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>fairly and freely during the interregnum. Such assertions should not be fanciful. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>9. In matters concerning delay in filing an application to set aside ex-parte decree, the amount of delay is not crucial but what is relevant is whether the petitioner has shown ‘sufficient cause’ for the delay and whether petitioner was bona fide in prosecuting the suit. As the shadows of delay enlarge the onus to explain the reasons to the satisfaction of the Court is more rigid. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">10. Paragraph No.2 in the affidavit filed in support of I.A.No.1264 of 2019, discloses that petitioner has been in consistent touch with his Lawyer. Therefore, it is not a case where petitioner could blame the Lawyer to overcome the inordinate delay caused in prosecuting the suit and in filing the application to set aside the ex-parte decree after long lapse of time. It is only a lame excuse. It cannot be assumed that petitioner was not aware of the developments in the suit. Petitioner wants to piggyback by blaming the lawyer for all his ills.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. Petitioner also sought to take shelter by referring to discussion on the e-mail sent by respondent counsel on 20.07.2018 by contending that the trial Court ought not to have placed reliance on said correspondence without leading evidence. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. On a first blush the said contention appears formidable. But on a closer look it is seen that the trial Court referred to the e-mail only to assess whether petitioner had the knowledge of the proceedings going on before the trial Court. On going through the record, even ignoring the communication dated 20.07.2018, the chronology of events preceding to passing ex-parte decree clearly point out that petitioner himself has to blame for being negligent in not prosecuting the suit. As a litigant, it is the primary duty of petitioner to monitor the progress of the case and attend to proceedings before the Court. He wakes up leisurely at his convenience to seek to set aside ex-parte decree. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">1</font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">3. In the facts of this case, it is clear that petitioner has not shown ‘sufficient cause’ to condone the delay and that petitioner was not prosecuting the suit bonafidely. It is evident from his own averments in I.A.No.1264 of 2019 that he has been in </span><font face=\"Calibri, sans-serif\">constant touch with his Lawyer. Therefore, he cannot now try to blame the Lawyer to gain sympathy from this Court. By his own failings, he has allowed the rights crystallized in favour of the decree holder. He was negligent in prosecuting the suit and lacks bonafides in his claim for delay. </font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14. In the facts of this case, the decisions relied upon by learned counsel for petitioner. It is a well considered decision of the Court below and facts and circumstances do not warrant interference of this Court in exercise of its supervisory jurisdiction. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15. The Civil Revision Petition is accordingly dismissed Pending miscellaneous petitions, if any, shall stand closed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7d80e1ce77e0b09ca88030c28310e9c9.jpg', 'f6f9711481a176d6f3869393662d5b13.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-07', 1, '', '', '2022-07-06 17:41:49', '2022-07-07 06:25:31'),
(1910, 'DrIt7ErcVRwFnP7QmINAd03u1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Once the essential features of a registered trademark have been adopted by the defendant, the fact that the layout, packaging etc. are different is of no consequence, while this can be set up as a defence in an action for passing off. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sun Pharmaceutical Industries Ltd Vs Punam Devi.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CS (COMM) 504 of 2019 decided on 13 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Jyoti Singh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. By way of the present suit, Plaintiff seeks a decree of permanent\r\ninjunction restraining the Defendant, its proprietors, etc., from\r\nmanufacturing, selling, advertising, etc., any products/services under the\r\nimpugned tradename/mark RANBAXY LABORATORIES or any other\r\ntrademark, tradename, domain name, identical or deceptively similar to\r\nPlaintiff’s trademark RANBAXY or RANBAXY LABORATORIES,\r\namounting to infringement and passing off as well as decree for damages,\r\nrendition of accounts and delivery up.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. It is averred in the plaint that Plaintiff (the expression includes\r\npredecessors in business and title) is a Company incorporated under the\r\nCompanies Act, 2013 and started its business of marketing pharma products\r\nas a proprietary firm in the year 1978. In 1982, a partnership firm under the\r\nname and style of M/s Sun Pharmaceutical Industries was formed to\r\nmanufacture, deal in and trade into pharmaceutical goods and allied goods </span><span style=\"font-size: 12pt;\">and services. On 01.03.1993, the partnership firm was converted into a Joint\r\nStock Company and incorporated as a Company under the present name.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>3. It is averred that in the year 2014, vide a duly approved Scheme of\r\nArrangement, Plaintiff acquired all assets along with intellectual property of\r\nRanbaxy Laboratories Limited, one of the world’s largest pharmaceutical\r\nCompanies. The Scheme was duly approved and sanctioned by the High\r\nCourt of Gujarat vide order dated 24.12.2014, in Company Petition No. 219\r\nof 2014 and by the order of High Court of Punjab and Haryana vide order\r\ndated 09.03.2015 in Company Petition Nos. 132 and 165 of 2014, in a\r\nseparate litigation. Plaintiff, by virtue of the said orders, is the recorded\r\nproprietor of trademarks earlier owned by Ranbaxy Laboratories Limited.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>4. It is averred that Plaintiff markets drugs and formulations in more\r\nthan 150 countries of the world under its extensive range of well-known and\r\ndistinctive trademarks/brand names. Plaintiff has a consolidated annual\r\nturnover of over Rs. 30,000 Crores, globally and is now ranked as number\r\none pharma company in India in a total of 11 specialities and is the world’s\r\nfourth largest generic pharma company. Plaintiff can boast off having 45\r\nmanufacturing sites in six continents and ten world-class research centres.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>5. It is further averred that Plaintiff’s manufacturing operations are\r\nfocussed on producing generics, Over-the-Counter products, anti-retrovirals,\r\nActive Pharmaceutical Ingredients and intermediates in the full range of\r\ndosage forms including tablets, capsules, injectables, creams etc. Plaintiff\r\nhas a highly skilled team of regulatory affairs specialists, well-versed with\r\nregulatory policies and procedures as also a wide range of regulatory\r\nagencies who routinely conduct stringent audits of the manufacturing\r\nfacilities to ensure compliance with Current Good Manufacturing Practices. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. It is stated that Plaintiff’s predecessors, Ranbaxy Laboratories\r\nLimited adopted the tradename RANBAXY in the year 1961 and filed an\r\napplication for registration in the year 1991, claiming user since 1966 and\r\nhas been extensively and continuously using the same since then. Vide order\r\ndated 19.10.2015, the said mark was assigned to the Plaintiff. Today,\r\nPlaintiff is a proprietor of trademarks ‘RANBAXY’, ‘RANBAXY\r\nLABORATORIES LIMITED’ and its formative marks in India as well as in\r\nforeign jurisdictions, the details whereof are furnished in the plaint.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. It is further stated that Plaintiff has taken efforts to popularize its\r\ntrademark/corporate name and has expended substantial sums of money on\r\nsales promotion, advertisement and publicity of the same. Due to continuous\r\nand extensive use of the marks and large sales of goods under the trademark\r\nRANBAXY, it has acquired immense reputation and goodwill, reflected\r\nfrom the sales turnover of the predecessor-in-interest of the Plaintiff for the\r\nyear 2013-14, prior to the Scheme of Arrangement, being Rs.3,000 Crores\r\napproximately in India and approximately Rs.3,800 Crores, as export sales.\r\nEven after the merger, Plaintiff continues to use the trademark RANBAXY,\r\nprominently on several medicinal products such as AFENAK, AZAX-200,\r\nAFENAK-100, Plus NS etc. with encouraging sales figures.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. It is pleaded that Plaintiff has been vigilant and zealous in protecting\r\nits intellectual property and had filed several cases, wherein favourable\r\norders, protecting its rights have been granted by this Court, as referred to\r\nand relied upon in para 19 of the plaint.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. As per the case set up by the Plaintiff, Defendant claims to be the\r\nproprietor of M/s Ranbaxy Laboratories. In the third week of August, 2019,\r\nit is stated, that Plaintiff came across Defendant’s mark, when the</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> application for registration of the trademark RANBAXY LABORATORIES\r\nunder no. 4153272 in class 35 dated 20.04.2019, was published in Trade\r\nMarks Journal No. 1907-0 dated 24.06.2019. The application was filed on a\r\n‘proposed to be used’ basis and registration was sought without any\r\ngeographical limitation for the whole of India. Subsequently, Plaintiff\r\nconducted a search on the official website of the Trade Marks Registry and\r\ncame across another application for registration of the same mark in class 5\r\ndated 20.04.2019, on ‘proposed to be used’ basis, which was objected to\r\nunder Section 11 of the Trade Marks Act, 1999 (hereinafter referred to as\r\n‘Act’), on account of similarity/identity with marks that already existed on\r\nthe Register. Plaintiff’s registered mark RANBAXY and formative marks\r\nunder three different registration numbers were cited in the examination\r\nreport.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. It is averred that Defendant has adopted the mark RANBAXY\r\nLABORATORIES, which is a blatant and slavish imitation of Plaintiff’s\r\nwell-known trademark RANBAXY and its formative marks and a consumer\r\nwith average intelligence and imperfect recollection is bound to be confused\r\nand deceived as the goods are similar. Intent of the Defendant is to take\r\nunfair advantage of the reputation of Plaintiff’s registered trademark\r\nRANBAXY, by misrepresenting to the public and creating a belief that the\r\ngoods and services offered by the Defendant under the impugned mark have\r\nsome association or connection with the Plaintiff, while none exists and\r\nresultantly causing injury and loss to the Plaintiff. The actions of the\r\nDefendant amount to infringement and passing off and thus an injunction\r\nmust follow.<span style=\"font-size: 12pt;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. It emerges from a perusal of the pleadings and the documents that the\r\ntrademark RANBAXY was adopted by Plaintiff’s predecessor in 1961 and\r\nwas subsequently registered. Thereafter, the mark was assigned to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Plaintiff pursuant to a Scheme of Arrangement sanctioned and approved by\r\nthe High Court of Gujarat and the High Court of Punjab and Haryana in two\r\nseparate litigations, as aforementioned. Plaintiff has furnished details of\r\nregistrations with respect to the mark RANBAXY and RANBAXY\r\nLABORATORIES LIMITED in the plaint and Certificates of Registration in\r\nclasses 5, 35 and 40 have been filed. Registrations are stated to be valid and\r\nsubsisting, to which there is no rebuttal in the absence of a written statement.\r\nPlaintiff has thus proved its registrations.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>21. Perusal of the Scheme of the Trade Marks Act, 1999 indicates that a\r\nregistered trademark is infringed by a person, who not being a registered\r\nproprietor or a person using by way of permitted user, uses in the course of\r\ntrade, a mark which is likely to cause confusion on the part of the public or\r\nlikely to have an association with the registered mark, in any of the\r\neventualities mentioned in clauses (a), (b) and (c) of Section 29(2) of the\r\nsaid Act. While clause (a) envisages a situation where there is an identity of\r\nthe registered trademark and similarity of goods/services, clause (b)\r\ncontemplates a situation where the registered trademark is similar and the\r\ngoods/services covered by the mark are identical or similar. Clause (c) deals\r\nwith identity of the registered mark as well as the goods/services covered by\r\nthe said mark. Where the registered marks and the goods have an identity,\r\nLegislature provides that Courts shall presume confusion under Section\r\n29(3) of the Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">22. It is well-settled that the action for infringement is a statutory right\r\nconferred on the registered proprietor for exclusive use of its registered\r\ntrademark and its protection against third parties in relation to the goods for\r\nwhich it is registered. This is different from the common law remedy of</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>passing off which is premised on an action of deceit. In an action for\r\ninfringement once the Plaintiff is able to show that all or the essential\r\nfeatures of the registered trademark have been adopted by the Defendant, the\r\nfact that the layout, packaging etc. are different is of no consequence, while\r\nthis can be set up as a defence in an action for passing off.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. The averments are unrebutted by the Defendant, who has chosen to\r\nkeep away from the proceedings. It is clear from a comparison of the\r\ncompeting marks in the present case that Defendant’s impugned mark\r\nRANBAXY LABORATORIES is visually, phonetically, structurally and\r\nconceptually identical to the registered trademarks of the Plaintiff i.e.\r\nRANBAXY and RANBAXY LABORATORIES LIMITED and the goods\r\nbeing pharmaceutical products in class 5 are also identical. Plaintiff has\r\nregistrations in classes 35 and 40 with respect to services rendered under the  registered trademarks, which are claimed to be similar to the services of the\r\nDefendant. Therefore, in my considered view, looking at the identity\r\nbetween the impugned mark and the goods/services with respect to which\r\nthe registered trademarks are used by the Plaintiff, use of the impugned\r\nmark by the Defendant constitutes infringement under Section 29 (2)(c) of\r\nthe Act and the Court shall presume that this is likely to cause confusion on\r\nthe part of the public. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. Cause of action with respect to passing off was predicated on the fact\r\nthat Defendant had applied for registration of the trademark RANBAXY\r\nLABORATORIES and had been granted the drug license by the Central\r\nLicensing Authority for Delhi and there was imminent threat and reasonable\r\napprehension that Defendant would start its operations/sales in Delhi.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. Vide order dated 16.09.2019, this Court had by way of ex parte ad\r\ninterim injunction restrained the Defendant from manufacturing or\r\nmarketing any product or services under its trademark ‘RANBAXY\r\nLABORATORIES’ or any mark deceptively similar to Plaintiff’s registered\r\ntrademarks. Thus, there have been no sales by the Defendant and it is not the\r\ncase of the Plaintiff that the injunction order was violated. Keeping this in\r\nview and the fact that the Plaintiff has itself forgone the claim for damages,\r\nrendition of accounts and delivery up, the said reliefs are not granted.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. In view of the identity of the competing trademarks, similarity in\r\ngoods and trade channels and taking into account the fact that the\r\ngoods/services relate to pharmaceutical products, Defendant, its proprietor,\r\nassignees in business, distributors, dealers, stockists, retailers/chemists,\r\nservants and agents are permanently restrained from manufacturing, selling,\r\noffering for sale, advertising, directly or indirectly dealing in any\r\nproducts/services under the impugned trade name/mark RANBAXY\r\nLABORATORIES and/or using any other trade name/trademark as may be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">identical or deceptively similar to Plaintiff’s registered trademark\r\nRANBAXY or RANBAXY LABORATORIES LIMITED.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>28. Statement of cost incurred by the Plaintiff has been filed by way of an\r\naffidavit. Considering the affidavit, the suit is decreed with cost of\r\nRs. 6,00,000/- including the Court Fee, deposited by the Plaintiff.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">29. Decree sheet be prepared accordingly.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '73da8e557d2dc81618b5f0457c3d98a5.jpg', '7f0aeb29bc04dfb919f3accc730427af.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-07', 1, '', '', '2022-07-06 18:03:01', '2022-07-07 08:25:25'),
(1911, 'ugxmvi4X2N72sMOCE5rs0LGra', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Indian Premier League auction does not amount to International Human Sale\'\'. Delhi High Court dismisses Public Interest Litigation with costs.  ', '<p><b>Sudhir Sharma vs Union of India and others&nbsp;<br>Writ Petition (Civil) 5968 of 2019 decided on 26 July 2019<br>Chief Justice and Justice C. Hari Shankar&nbsp;<br></b></p><p><b>1. This so called public interest litigation has been preferred with the \r\nfollowing prayers:\r\n</b></p><p><b><i>“i) To pass necessary, order and directions to the respondent \r\nno.1 to 4 to look into the serious matter relating to International&nbsp;Human Auctioning, bidding and selling through respondent \r\nno.5 to 16 in the interest of justice;\r\n<br>ii) to pass necessary order and direction scraping/nullifying \r\nand declaring the system of bidding/ auctioning/ selling of \r\nInternational Human in the name of game as illegal, in the \r\ninterest of justice and to uphold the rule of law;\r\n<br>iii) to pass necessary order &amp; direction initiating an enquiry \r\nas the Hon\'ble Court may deem think fit and proper in the \r\ninterest of justice and to uphold the rule of law ;\r\n<br>iv) to take appropriate action against the guilty \r\npersons/offenders (i.e. the respondent no. 5 to 16), in \r\naccordance with law for violating the law and undermining the \r\nConstitutional provisions, and the law and the legal system;\r\n<br>v) to pass such other order or orders that may be deemed fit \r\nand proper in the facts and circumstances of the case.”\r\n &nbsp;</i></b></p><p><b>2. Having heard the counsel for petitioner and looking to the facts of the \r\ncase, it appears that this is not a public interest litigation at all. This is, in \r\nfact, a publicity interest litigation. This is not a case of auctioning of any \r\nplayer, especially in the games, which are pointed out by the counsel for \r\npetitioner like cricket or kabbadi. In fact, what is to be appreciated is the \r\nsports skills of the candidate or player. There is no question whatsoever \r\narises for the sale or purchase of the human beings. This is nothing but \r\nmisuse of several terms, for the national players, in this writ petition which \r\nis derogatory to our national players. Just to get the publicity of this matter \r\nand of the petitioner, these allegations have been levelled against the \r\nrespondents about their auctioning/selling etc. of the players. Hence, we see \r\nno reason to entertain this writ petition.&nbsp;</b></p><p><b>3. We are, therefore, dismissing this writ petition with the costs of \r\nRs.25,000/- (Rupees twenty five thousand only). This amount will be&nbsp;deposited in the Bank Account No.15530110000359, Registrar General \r\nAccount, Juvenile Justice Centre SB, UCO Bank, Delhi High Court, New \r\nDelhi either by cheque or bank draft, within a period of six weeks from \r\ntoday, towards Juvenile Justice Fund. This amount shall be utilised for the \r\nwelfare of the juveniles.\r\n</b></p><p><b>4. A copy of this order will be sent to the Member Secretary, Delhi State \r\nLegal Services Authority, Central Office, Patiala House Courts Complex, \r\nNew Delhi – 110001.\r\n</b></p><p><b>5. With the aforesaid observation, the writ petition stands disposed of. &nbsp;</b><br></p>', 'c2c5d96771cd13a138e9997c79412ec7.png', '636b7d9331a55e49c1a29a69bef5bf41.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-06', 1, '', '', '2022-07-06 18:07:52', '2022-07-06 18:07:52');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1912, 'XofYTNuB2wyfrfOQiREZWws0z', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Inordinate delay in making the motion for a writ is an adequate ground for refusing to exercise discretion in favour of the petitioner. Delhi High Court reiterates.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nardev Soni and others Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P (C) 7815 of 2022 decided on 5 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Siddharth Mridul and Justice Gaurang Kanth. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The evacuee property has been acquired by the Central\r\nGovernment under section 12 of the Displaced Persons (Compensation\r\nand Rehabilitation) Act, 1954 („the Displaced Persons Act?) and the\r\nsame accordingly vests with the Central Government in terms of\r\nSection 12(2) of the Displaced Persons Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. A public auction was held on 04.01.1959 in respect of the\r\nevacuee property in terms of Section 20 of the Displaced Persons Act.\r\nLate Dewan Kesho Dass Soni, the predecessor in interest of the\r\nPetitioner Nos. 1 & 2, who was a displaced person under the\r\nDisplaced Persons Act, emerged as the highest bidder for purchase of\r\nthe evacuee property with a bid price of Rs. 91,000/-. Late Dewan\r\nKesho Dass Soni executed an Indemnity Bond on 05.01.1959 in\r\nfavour of the President of India for an amount of Rs. 9,110/- (towards\r\n10% of the purchase price of the said evacuee property as required by\r\nthe auctioneers).\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. Vide letter dated 14.01.1959, the office of the Regional\r\nSettlement Commissioner informed Late Dewan Kesho Dass Soni\r\nabout acceptance of his bid in respect of the evacuee property with a\r\ndirection to deposit within 15 days the balance purchase price or to\r\ntake steps with regard to adjustment of the purchase price against\r\nverified claims for property left behind in West Pakistan. Late Dewan\r\nKesho Dass Soni, being a displaced person, vide letter dated\r\n28.01.1959, opted for adjusting his verified amount of Rs. 66,857/- </span><span style=\"font-size: 12pt;\">towards the balance purchase price. He also informed that he would\r\nlike to associate with his friend Mr. Radha Kishan Nagpal, who had a\r\nverified claim of Rs. 24,243/- and the said amount can also be adjusted\r\ntowards the balance purchase price. After adjusting the verified\r\namounts, Sale Certificate dated 25.08.1961 was issued in favour of\r\nLate Dewan Kesho Dass Soni and Mr. Radha Kishan Nagpal. The\r\nprovisional possession of the evacuee property was never taken over\r\nby Late Dewan Kesho Dass Soni or his associate Mr. Radha Kishan\r\nNagpal.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>5. In the meanwhile, the Delhi Administration (Respondent No. 2\r\nnow) issued impugned Notification dated 13.11.1959 under Section 4\r\nof the Land Acquisition Act, 1894 and acquired certain portions of\r\nland (including two portions of the evacuee property bearing No. 9/2/1\r\nadmeasuring 17 Biswas and No. 9/2/2 admeasuring 3 Bighas and 13\r\nBiswas) at public expense for a public purpose i.e., for the planned\r\ndevelopment of Delhi. Subsequently, vide another Notification dated\r\n18.08.1960 under Section 4 of the Land Acquisition Act, 1894, the\r\nbalance portion of the evacuee property bearing no. 9/1/1 admeasuring\r\n6 Bighas and 6 Biswas was issued by the Government of Delhi for the\r\npurpose of establishment of College of Engineering and Technology.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>6. On 25.08.1961, a Sale Certificate was issued to Late Dewan\r\nKesho Dass Soni and Late Radha Kishan Nagpal declaring them the\r\npurchasers of the evacuee property with effect from 24.08.1961 in\r\nrelation to their respective share in the evacuee property.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">7. The physical possession of the evacuee property was taken by\r\nthe Respondent No. 2 on 10.11.1961. The Land Acquisition Collector\r\nvide 3 separate Awards, i.e., Award No. 1213 dated 21.10.1961,  </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Award No. 1251 dated 01.01.1962 and Award No. 1262 dated\r\n02.02.1962, fixed the price of the land at Rs. 4000/- per Bigha.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>8. On 28.06.1962, Late Dewan Kesho Dass Soni and Late Radha\r\nKishan Nagpal preferred applications under Section 18 of the Land\r\nAcquisition Act, 1894 applying to the Land Acquisition Collector to\r\nrefer the matter for determination of the Court on the ground that\r\nproperty had been greatly undervalued and that its market value\r\nshould have been held to be not less than Rs. 50,000/- per bigha.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>9. Vide common Judgment dated 07.09.1966 passed in all three\r\ncases bearing Land Acquisition Case Nos. 354/1962, 82/1963,\r\n322/1963 the Learned. Additional District Judge, Delhi enhanced the\r\ncompensation awarded to the predecessors in interest of the Petitioners\r\nfrom Rs. 4,000/- per bigha to Rs. 12,000/- per bigha with 15%\r\nsolatium and 6% interest from the date of possession till the date of\r\npayment.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>10. In the year 1967, three Regular First Appeals bearing Nos.\r\n41/1967, 43/1967 and 44/1967 all titled “Diwan Kesho Dass &\r\nanother. vs. Union of India & another” came to be filed before this\r\nCourt inter alia challenging the Order dated 07.09.1966 passed by the\r\nLearned Additional District Judge in Land Acquisition Case Nos.\r\n354/1962, 82/1963, 322/1963 respectively.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. It has been submitted on behalf of the Petitioners that in the\r\nyear 2013, the Hon’ble Supreme Court in the matter of Saraswati Devi\r\nvs Delhi Development Authority and Others, (2013) 3 SCC 571\r\nsettled the question of law vis-à-vis the validity of the acquisition of\r\nproperties that had been auctioned under the provisions of Displaced\r\nPersons Act. It is the case of the Petitioners that they came to know\r\nabout the said Judgement of the Hon’ble Supreme Court in the year\r\n2021. The Petitioners submit that thereafter they sought certain\r\ninformation from the Respondents under the Right to Information Act,\r\n2005. Accordingly, the Petitioners came to know that the impugned\r\nNotifications are bad in law as the notices under section 4 of the Land\r\nAcquisition Act, 1894 had been issued prior to any sort of\r\nencumbrance being created on the evacuee property. In view of the\r\nsame, the Petitioners are challenging the said Notifications in the\r\npresent proceedings.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. It was further argued on behalf of the Petitioners that the\r\npredecessor in interest of the Petitioners never took provisional\r\npossession of the evacuee property and therefore, in view of the law\r\nlaid down by the Hon’ble Supreme Court in Saraswati Devi (supra),\r\nno encumbrance was created on the evacuee property prior to the date\r\nof issuance of the impugned Notifications. It is the submission of\r\nlearned Senior Counsel appearing on behalf of the Petitioners that\r\nsince no encumbrance was created on the evacuee property prior to the\r\ndate of acquisition, the evacuee property belonged to the Central\r\nGovernment and thus could not have been acquired under the Land\r\nAcquisition Act, 1894.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. The Learned Senior Counsel for the Petitioners admitted the\r\nfact that the compensation with regard to the acquisition of the\r\nevacuee property was accepted by the predecessor in interest of the\r\nPetitioners and they never challenged the land acquisition at any point\r\nin time. The Petitioners themselves were impleaded in those\r\nproceedings for the enhancement of compensation in respect of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">evacuee property. The predecessors in interest of the Petitioners were\r\naware of the acquisition proceedings since 1961, however, it is the\r\ncontention of the Learned Senior Counsel appearing on behalf of the\r\nPetitioners that the right to property is a human right and\r\nconstitutional right guaranteed under Article 300A of the Constitution\r\nof India as held by the Hon’ble Apex Court in Vidya Devi vs State of\r\nHimachal Pradesh and Others, (2020) 2 SCC 569. In view whereof,\r\nit has been argued on behalf of the Petitioners that every citizen has a\r\nright to property and by virtue of the law as evolved as on date, if it is\r\nevident that the land acquisition in itself is illegal on the date of\r\nissuance of the impugned Notifications, this Court can exercise its\r\nextraordinary jurisdiction under Article 226 of the Constitution of\r\nIndia, in order to ensure justice to the parties.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. The Learned Counsel for the Respondent No. 9/ LAC opposed\r\nthe Writ Petition on the ground of delay and laches. It is contended by\r\nthe Counsel for the Respondent No. 9 that the impugned Notifications\r\nwere issued on 13.11.1959 and 18.08.1960 and the compensation was\r\npaid and settled almost 20 years back. He further submitted that the\r\nacquisition proceedings were concluded long back and the Petitioners\r\nhave already reaped the benefits of the said proceedings by virtue of\r\nreceiving compensation and also enhanced compensation in respect of\r\nthe evacuee property. Therefore, the present Petition is barred by delay\r\nand latches. The Learned Counsel for the Respondents in support of\r\nhis contention placed reliance on the Judgement of the Hon’ble Apex\r\nCourt in Delhi Development Authority vs. Shyam Sunder Khanna,\r\n2004 (72) DRJ 356</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20. On perusal of the record and in view of the arguments advanced\r\non behalf of the parties, it emerges that the predecessor in interest of\r\nthe Petitioners successfully participated in the public auction of the\r\nevacuee property on 04.01.1959. He executed an Indemnity Bond in\r\nfavour of the President of India for the 10% of bid amount on\r\n05.01.1959. He was declared as highest bidder in the said auction and\r\nwas directed to deposit the balance purchase price on 14.01.1959.\r\nEven though, the provisional possession of the evacuee property was\r\noffered on 14.01.1959, apparently, the predecessor in interest of the\r\nPetitioners, never took the possession of the evacuee property. The\r\npredecessor in interest of the Petitioners, on 28.01.1959, accepted the\r\noffer made by the Settlement Commissioner and offered their verified\r\namount towards the balance purchase price. After adjusting the\r\nverified amounts, the sale certificate was finally issued on 25.08.1961.\r\nThe Delhi Administration (Respondent No.2 herein) issued the</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>impugned Notifications on 13.11.1959 and 18.08.1960 and\r\naccordingly acquired the evacuee property.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. The predecessor in interest of the Petitioners were well aware of\r\nthe acquisition proceedings in respect of the evacuee property. They\r\naccepted the compensation in respect of the evacuee property under\r\nprotest and sought for enhancement of compensation. The litigations\r\npertaining to the enhanced compensation came to an end in the year\r\n2003 as the execution Petitions were disposed of as satisfied. Hence\r\nthe process of impugned land acquisition and the litigations emanating\r\ntherefrom with respect to the evacuee property culminated about 20\r\nyears back.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. The legal position regarding the approach to be adopted in cases\r\nchallenging land acquisition proceedings is no more res integra<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. In the present case, there is an inordinate delay of almost 62\r\nyears in challenging the acquisition proceedings. The Petitioners\r\naccepted the enhanced compensation without reserving any right\r\nwhatsoever. The law does not permit a person to approbate and\r\nreprobate at the same time. Inordinate delay in making the motion for\r\na writ is indeed an adequate ground for refusing to exercise discretion\r\nin favour of the petitioner. Therefore, now after an inordinate delay of\r\nabout 62 years after the acquisition, the Petitioners cannot challenge\r\nthe said acquisition proceedings.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. That it is the case of the Petitioners that the Hon’ble Supreme\r\nCourt settled the legal issue in the matter of Saraswati Devi (supra)\r\nonly in the year 2013 and hence in view of the said Judgement of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Hon’ble Supreme Court, the impugned Notifications are rendered\r\nillegal. This Bench finds it difficult to agree with the submissions of\r\nthe Learned Senior Counsel for the Petitioners. The Court cannot\r\npermit the Petitioners to alter a settled position after almost six\r\ndecades, when the Petitioners have remained silent for decades and\r\nhave accepted the enhanced compensation awarded to them. It is a\r\nsettled position of law that delay and laches is one of the factors which\r\nis to be borne in mind by the High Court while exercising their\r\ndiscretionary powers under Article 226 of the Constitution. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. We are in respectful agreement with the ratio laid down by this\r\nCourt in the above-mentioned matters. The axiomatic delay disentitles\r\na party to discretionary relief under Article 226 of the Constitution of\r\nIndia. Moreover, this Court is not convinced with the explanation\r\nrendered on behalf of the Petitioners for such a substantial and\r\ninordinate delay in approaching this Court. In view of the\r\naforementioned discussion, this Court finds no merit in the present\r\nPetition and the same is dismissed accordingly. No order as to cost.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'dfca5ba69801e40bc4a13f145e83a355.jpg', '42d42b2a2816725ae47f6c2a0df90640.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-07', 1, '', '', '2022-07-06 18:29:07', '2022-07-07 10:50:21'),
(1913, 'zFzuoyw7dF4F5m727r3p2kMgP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Amendment to Motor Vehicles Act, 1988 prescribing period of six months from the date of the accident to make claim petition does not apply to accidents occurred prior to 1.4.2022. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sathy Subramanian and others Vs Dileep I.S and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>OP (MAC) 51 of 2022 decided on 1 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Amit Rawal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>inter alia alleges that the objection qua limitation is a mixed\r\nquestion of fact and law. The claim petition in respect of an\r\naccident occurred on 23.5.2019 could not have been rejected\r\nsummarily by taking the aid of amendment caused in Section\r\n166(3) of the Motor Vehicles Act, 1988 substituted by Act 32 of\r\n2019 made effective from 1.4.2022 as the said amendment would\r\nhave a prospective effect. Otherwise with the stroke of the\r\namendment the right available to the injured and the claimants of\r\nthe deceased person would be taken away.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Sri.Lal George accepts notice for the third respondent,\r\nthe contesting respondent and submits that nothing has been\r\nsaved under repealing and savings clause under Section 217 of the\r\nMotor Vehicles Act, 1988. Thus the order is perfectly legal and\r\njustified.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. Prior to the amendment caused in the Motor Vehicles\r\nAct, Act 1939 was in existence dealing with the provisions of\r\nproviding no fault liability and entertainment of claim petitions\r\nunder Section 92A and Section 110A of 1939 Act. The\r\naforementioned Act was amended by Motor Vehicles Act in 1988\r\nand the claim petition was to be filed within a period of six months. </span><span style=\"font-size: 12pt;\">The aforementioned amendment by way of amendment in 1994\r\nprescribed no limitation to file claim petitions in respect of the\r\naccident occurred at any point of time. Legislature in its wisdom\r\nintroduced the Act of 32 of 2019 effective from 1.4.2022 by\r\nbringing back the old provisions of 166(3) restricting the\r\nentertainment of the application for compensation unless it is made\r\nwithin a period of six months from the occurrence of the accident.\r\nWhile causing the amendment and reintroducing the provision\r\nwhich was in vogue at the time when Motor Vehicles Act, 1988 was\r\npromulgated, there was no amendment in Section 217 dealing with\r\nrepealing and savings clause.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">4. Learned counsel appearing on behalf of the petitioner\r\nsubmits that the accident in the present case had occurred on\r\n23.5.2019. At the relevant point of time, statutory right was\r\navailable, claimants were entitled to file the claim petition\r\nuntrammeled by any period of limitation. But, in the amendment\r\naforementioned by Act 32 of 2019 effective from 1.4.2022, the\r\nright has been taken away resulting into the impugned order dated\r\n23.4.2022 whereby the application for compensation filed on the\r\nsame date has been dismissed being barred by law of limitation.\r\nThe objection qua limitation, a mixed question of fact and law, can </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be decided only when the parties are made to lead evidence by\r\nframing the issues. The petition should not have been rejected in a\r\nsummarily manner.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>5. On the other hand, learned counsel appearing on behalf\r\nof respondent No.3 Insurance Company submitted that in the\r\nabsence of any provision in the repealing and savings clause, the\r\norder under challenge is perfectly justified as period of six months\r\nhad elapsed on 22.11.2009. Though the amendment came on\r\n1.4.2022, nothing prevented the claimants to prefer the claim\r\npetition within the parameters of law which was then in vogue and\r\nthus urge this Court for dismissal of the Original Petition.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. It is a matter of record that when the old Motor Vehicles\r\nAct 1939 was substituted and repealed by Act of 1988, the\r\nprovision of limiting the right to file claim petition was six months.\r\nThe aforementioned period of six months was omitted by way of\r\namendment in the year 1994. Thus, the affected parties had a\r\nright to file claim petition in a case of injury or death at any point\r\nof time untrammeled by the objection of limitation. Legislature in\r\nthe wisdom on due deliberation have reintroduced the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">aforementioned erstwhile provisions of sub-section (3) of Section\r\n166 limiting the right to entertain the claim petition before the\r\nconcerned court within a period of six months from the date of the\r\naccident. The accident in this case, as noticed above, had occurred\r\non 23.5.2019. The claim petition was filed on 23.4.2022. By that\r\ntime the new amendment had already come into force by Act 32 of\r\n2019 effective from 1.4.2022 resulting into the impugned order</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. It is settled law that in case there is no provision\r\nprotecting the rights of a litigant viz by causing amendment which\r\ninexplicably takes away exceptional rights, then the provisions of\r\nSection 6 of General Clauses Act, 1897 would come into play.\r\nSimilar situation had occurred when the amendment was caused in\r\nthe old Act of 1939 by introducing Act of 1988 wherein in a case of\r\nno fault liability the maximum compensation of MACT award was\r\nRs.15,000/-. The High Court while entertaining the appeal by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">taking aid of the amended provisions of Section 140 introduced by\r\nway of 1988 amendments gave the benefit of Rs.50,000/-. The\r\naforementioned objection was assailed before the Supreme Court in\r\na matter reported in State of Punjab and others v. Bhajan\r\nKaur and others [2008 (3) KHC 823]. After deliberation on the\r\nissue, it was held that when there is no introduction or omisision of\r\nthe provisions of the Act, there is no intention of the legislature to\r\nhave its prospective or retro-active applicability and in such\r\ncircumstances, the amendment caused in the new Act would have a\r\nprospective effect.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Section 6 of the General Clauses Act, 1897 postulates\r\nthe situation of a similar nature where by protecting right,\r\nprivilege, obligation or liability acquired or accrued under any\r\nrepealed enactment. It is settled law that the provisions of the new\r\nAct cannot infringe or re-ligate the right granted under the old Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Since while introducing the Act of 2019 effective from <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1.4.2022, Legislature did not cause any amendment in the\r\nrepealing and savings clause specifying its applicability in respect of\r\nthe accidents occurred prior to the introduction of the amendment,\r\nin view of the provisions of Section 6 and the observations of the\r\nSupreme Court in the judgment in State of Punjab and others v.\r\nBhajan Kaur and others (supra), I am of the view that the\r\napplicability of the Act i.e., introduction of the old provisions of subsection (3) of Section 166, would have a prospective effect and the\r\nlimitation period of six months would apply after introduction of the\r\namendment i.e., post 1st April 2022. In other words, in any\r\naccident occurred after 1.4.2022, provisions of the amendment\r\ncaused in the Act prescribing the limitation to entertain a claim\r\npetition, the parties would be governed by the same but not in\r\nrespect of the persons whom a right had already accrued and was\r\navailable if the amendment had not been caused.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">For the reasons aforementioned the impugned order is set\r\naside. Original petition is allowed. The MACT is directed to\r\nentertain the claim petition preferred and try the case on merits.\r\nSince the Insurance Company has already put in appearance, the\r\ncounsel representing the Insurance Company will be at liberty to\r\nput an appearance before the MACT as it will save the time </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">regarding service of the Insurance Company. The parties are\r\ndirected to appear before the MACT on 7.7.2022.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3bd128085c4c832e2178ab9ee1ab1368.jpg', '41b3a5a1a749f243ea9576d3750d654a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-07', 1, '', '', '2022-07-07 00:11:09', '2022-07-07 12:28:31'),
(1914, 'otEEBy216BvxWqfXCoBIfQHmh', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Employees’ Compensation Act. Once project agreement is proved, principal who paid compensation to workmen has a right to be indemnified from the contractor who has employed the workmen. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Chief Secretary Zilla Panchay Belgaum Vs Sadeepa Kareppa Harijan and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>MFA 24096 of 2010 decided on 28 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P. Krishna Bhat.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Brief facts insofar as the same are relevant for deciding the present appeals are that two persons namely Irappa Taragar and Nagappa Harijan were working as labourers under the Contractor who was executing the project for the appellant and on 15.04.2005 at about 8.15 p.m. on account of explosion of some gelatin sticks stored in the shed, Irappa Taragar and Nagappa Harijan died in the spot itself. It is stated that the project under which the said two persons along with several others were working was for implementing Jal Nirmala Yojana.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. After hearing the learned counsel on both sides and perusing the material on record, the learned Commissioner allowed both claim petitions in part by awarding compensation of Rs.3,79,120/- for the death of Irappa Taragar and Rs.3,19,600/- for the death of the Nagappa Harijan with interest thereon at the rate of 12% per annum with effect from 30 days from the date of the accident. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Learned counsel Sri Anand Ashtekar appearing for the appellants has advanced sole contention to the effect that learned Commissioner has committed a legal error in not passing a direction enabling the appellant to effect recovery of the compensation from respondent No.5-Renuka Constructions Co. Gokak, who was the contractor under whom the two deceased persons were working in the project. He took me through the provisions of Section 12 of the Employees’ Compensation Act, 1923 (for short “the Act”) in order to substantiate his contention. He accordingly, submitted that the matter is required to be remanded to the learned Commissioner to enquire into the matter by examining the project agreement between appellant and respondent No.5-Contractor and pass suitable orders in that behalf.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. There is no dispute about the basic facts that deceased were working as employees under the contractor in execution of the Jala Nirmala project for the benefit of the appellant herein and on account of explosion of some gelatin sticks preserved in the shed in the project site on 15.04.2005 at about 8.15 pm two persons, whose dependants are the claimants, had died instantaneously. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">9. The contention advanced before me in this appeal is that the deceased had died while being at the worksite of the Jala Nirmala project in which they were working for the benefit the appellant and the deceased workmen were directly employed by respondent No.5-contractor and therefore in terms of Section 12 of the Act, </font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">the appellant has a right to recover the compensation awarded from the contractor-respondent No.5 on establishing that there is such a provision in the project agreement between the appellant and respondent No.5.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. The above provision defines the persons who are treated as employers for the purpose of fastening liability to pay the compensation. For instance, in this case, the accident occurred while the project was being executed for the Jala Nirmala Yojana, which is a project for the benefit of the appellant herein. However, the appellant was not executing the project by employing workmen directly. It is the say of the appellant that it had entered into an agreement for the execution of work with respondent No.5 whose primary task was to execute the project by hiring necessary workmen as well as commanding necessary machineries. The provisions of Section 12 of the Act noted hereinabove clearly pre-supposes execution of the works either directly by the beneficiary or through the agency of a contractor and in both the events, the employees who suffered injuries in employment related accidents are entitled to proceed against the beneficiary of the project or against the contractor  commissioned  by  the  beneficiary  (Principal), who has directly employed such workmen. Sub Section 2 of Section 12 of the Act is explicit in saying that once existence of such an agreement for execution of the project through a contractor is proved, the principal who has paid compensation arising from claims pertaining to employment related accident has the right to be indemnified from a contractor who has employed such workmen. Such claims for indemnification as between the principal and contractor should be adjudicated by the Employee’s Compensation Commissioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. In these appeals, the learned counsel apologetically submits that the appellant did not care to participate in the proceedings after filing the statement of objections and therefore appellant could not press for such adjudication before the commissioner. There is no doubt that if the authorities like the appellants remain so indifferent, they do so at their peril. However taking note of the fact that appellant is a public institution and the interest of public will suffer unless an opportunity is provided to make a claim seeking indemnification on the strength of the agreement before the learned Commissioner and therefore in recognition of the public interest, appropriate direction is required to be issued to the Employees’ Compensation Commissioner while maintaining compensation awarded and primary liability to pay the same by the appellant to the claimants. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. Accordingly, the above appeals are disposed of with liberty to the appellant to produce the agreement between itself and respondent No.5 (Renuka Constructions Co. Gokak) before the learned Commissioner seeking adjudication of the rights of the appellant to claim indemnification from the respondent No.5 in regard to the compensation paid by the appellant to the claimants. In the event of such adjudication being sought by the appellant, the learned Commissioner or learned Senior Civil Judge, to whom the jurisdiction is now entrusted, shall decide the same within six months from the date of such claim being made. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. Amount in deposit before this Court shall be transmitted to the Court of learned jurisdictional Senior Civil Judge along with the records forthwith. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. In view of disposal of the appeals, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b454596cedf44289805e83c009b04db0.jpg', 'e7b6a1bdad713d53175e8c00ba0d9fcd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-08', 1, '', '', '2022-07-07 18:01:32', '2022-07-08 12:21:55');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1915, 'SGQRILm4kMHZ4IEUZEUzQNYE2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Change of entries in property register by playing fraud. Such fraudulent entry can be set aside in a Writ Petition under Article 226 of the Constitution of India. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Hanmanthappa Bandappa Tadakal Vs The Municipal Commissioner Office and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P 200378 of 2018 decided on 27 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The petitioner claims to be the absolute owner of the house property bearing CMC No.5-5-91/A (Old) and 5-5-84 (New) situated near Ashoka Lodge, Station Area, Yadgir. It is his specific case that the said property originally belonged to his ancestors and after their death, the revenue records were mutated in his name and he was paying property tax from the year 1994-95 to 1999-2000. Thereafter, in the year 2001, the petitioner had to move to Kalaburagi for the purpose of the education of his children and at the time of shifting he had asked his distant relative Smt. Annapurnamma to take care of the property in question. Taking undue advantage of the absence of the petitioner, respondent no.3 - Smt. Annapurnamma claiming herself to be the daughter of the petitioner, had created an affidavit in the name of the petitioner to the effect that he had no objection to change the revenue entries in respect of the property in question in favour of the said Annapurnamma. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The Chief Executive Officer of City Municipal Council, Yadgir, based on such an affidavit, had ordered to delete the name of the petitioner and enter the name of respondent no.3 -Smt. Annapurnamma in the revenue records of the property in question. It appears that subsequently Smt. Annapurnamma has executed another affidavit for transfer of the said property in favour of her son - respondent no.4 herein and based on such affidavit, the Chief Executive Officer of City Municipal Counsel, Yadgir, has ordered to transfer the property in the name of respondent no.4. Petitioner, after coming to know about the same, had filed a revision before respondent no.2 who has dismissed the same vide impugned order at Annexure-G on the ground that since the dispute is civil in nature, the petitioner was required to approach the Civil Court for adjudication of his dispute. Being aggrieved by such an endorsement dated 14.12.2017 issued by respondent no.2 vide Annexure-G, the petitioner is before this Court. The contesting respondents who have entered appearance have not filed their statement of objections till date. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Learned Counsel for the petitioner submits that the material on record would go to show that the revenue records of disputed property, earlier stood in the name of the petitioner herein. Only on the basis of the alleged affidavit, the revenue records of the property in question were transferred in the name of respondent no.3. He submits that respondent no.1 had no authority or jurisdiction to change the revenue records of the property in question on the basis of an affidavit produced by respondent no.3 even without issuing notice to the petitioner. He submits that the said affidavit which is at Annexure-B is a fraudulent document and the signature found in the said document is not of the petitioner. He submits that respondent no.3 is not the daughter of the petitioner herein and she is only his distant relative. However, in the affidavit, it is mentioned that she is the daughter of the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. He submits that on the basis of the affidavit, the revenue records of the property in question could not have been changed in favour of a stranger by respondent no.1. He submits that after coming to know about the fraud played by respondent no.3 and her family members, a revision petition was filed before respondent no.2. However, respondent no.2 without appreciating the fact that the entries in respect of the property in question were fraudulently changed in favour of respondent nos.3 to 5, has dismissed the said revision with an observation that the petitioner is required to approach the Civil Court for adjudication of his rights. He submits that when admittedly the property earlier stood in the name of the petitioner and the entries in respect of the said property were changed fraudulently, respondent no.2 ought to have exercised his jurisdiction and restored the entries as it stood earlier. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">6. Per contra, learned Counsel appearing for respondent nos.3 to 5 submits that the petitioner has no title over the property in question. He submits that the true owner of the property has executed a Will in the name of respondent no.3, and therefore, on the strength of such a Will, respondent no.3 is the absolute owner of the property. He submits that after the property was transferred in the name of respondent no.3, two other transactions have taken place, wherein the property was initially transferred by respondent no.3 in favour of her son respondent no.4 and respondent no.4 inturn has transferred the property in favour of respondent no.5 who is his brother. Therefore, unless the subsequent transactions are challenged, no relief can be granted to the petitioner herein. He submits that there is an inordinate delay of 17 years in filing the revision before respondent no.2 which has not been properly explained, and therefore, the revision was liable to be dismissed on the ground of delay and laches. He further submits that even if this Court is of the opinion that the Regional Commissioner is required to re-consider the matter, the impugned endorsement could be set aside and the matter may be remanded to the Regional Commissioner for considering the title of respondent nos.3 to 5.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. On the basis of the affidavit, the municipal authorities could not have changed the entries in respect of the immovable property in favour of third party who is a stranger, that too without issuing notice to the person in whose name the revenue records originally stood. It is a settled principle of law that the transfer of immovable property can be done, only by a registered  document  and  on  the  basis  of  unregistered documents, the revenue authorities cannot change the revenue entries of the immovable property. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. In the case on hand, the municipal authorities have changed the entries in respect of the property in question which originally stood in the name of the petitioner in favour of respondent no.3 on the basis of an affidavit which prima facie appears to be a fraudulent document. Respondent no.3, thereafter, has executed yet another affidavit and on the basis of the same, the entries in the revenue records of the property in question have been changed in the name of her son -respondent no.4 herein and respondent no.4 herein appears to have executed another document in favour of respondent no.5 who is also the son of respondent no.3. On the strength of the said document, the entries in respect of the property appears to have been transferred in the name of respondent no.5.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. In the case on hand, the material on record would prima facie go to show that the entries in respect of the property in question were transferred in the name of respondent no.3 on the basis of the fraudulent document produced by respondent no.3. In the said document, she claims that she is the daughter of the petitioner, but as a matter of fact, she is not the daughter of the petitioner herein. Further, in the said document, the signature of the petitioner is found in Kannada, whereas it is case of the petitioner that he signs only in English and the admitted signatures found in the affidavit and vakalath available in the file are in English. Further, as stated earlier, on the basis of the affidavit, municipal authorities could not have transferred the entries in the revenue records of the property in question in favour of respondent no.3 who is a stranger not only to the property but also to the petitioner. It is not in dispute that the petitioner was not heard prior to such a change in the revenue records and the entries were changed by the municipal authorities on the basis of the affidavit said to have been executed by the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. Respondent no.2 has failed to appreciate the aforesaid aspects of the matter and has observed that since there are two other transactions in respect of the property in question after the revenue records of the property in question was originally transferred in the name of respondent no.3 and since there is a lapse of 17 years from the date of original order passed by respondent no.1, the petitioner is required to approach the Civil Court for the purpose of adjudication of his rights. Respondent no.2 has not appreciated that the subsequent transactions are inter se within the family. Respondent no.3 has executed an affidavit and on the strength of the said affidavit, the property is transferred in the name of respondent no.4 who is her son and thereafter on the basis of another unregistered document, the said property has been now transferred in the name of respondent no.5 who is also the son of respondent no.3. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17. It appears that the said transactions are made only to create documents and deprive the petitioner of his right and title over the property in question. The petitioner is not required to challenge any of such transactions which have come into existence subsequent to the change of entries made in favour of respondent no.3 based on the fraudulent document submitted by her before respondent no.1. Respondent no.2 without appreciating this aspect of the matter, has erred in rejecting the revision petition filed by the petitioner and directing him to approach the Civil Court for adjudication of his rights. Admittedly, the petitioner is not a party to any of the alleged transactions in respect of the property in question. As observed earlier, the revenue entries in respect of the property in question have been changed on the basis of fraudulent document submitted by respondent no.3, for which the petitioner is not a party and respondent no.1 while changing the revenue records of the property in question based on such a fraudulent document, has not even issued a notice to the petitioner in whose name the revenue records of the property in question stood as on the said date. Though belated exercise of powers in revisional jurisdiction is impermissible, in a case of fraud such an exercise of power would be necessary to restore the loss suffered by the victim of fraud. The exercise of powers belatedly is normally not done so as to avoid interfering with the rights of third party which would have been created during the intervening period of delay. However, in the case on hand, the alleged transactions are all in between the family members i.e., between respondents 3 to 5 and no third party interest has been created by them in the property in question. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. The revision petition has been filed by the petitioner after he came to know about the change of the entries in the revenue records of the land in question based on the fraudulent documents by respondent Nos.3 to 5. Since the petitioner was not at all aware of the change made in the revenue records of the property in question, which originally stood in his name, the delay if any in filing the revision petition would not have come in the way of respondent no.2 in considering the revision petition on merits as the material available on record would go to show that the entries in the revenue records of the land in question were transferred in the name of respondent no.3 based on the fraudulent documents submitted by her. The Hon\'ble Supreme Court in the case of JOINT COLLECTOR, RANGA REDDY DISTRICT VS D.NARASING RAO - (2015)3 SCC 695, has held that power of revision should be exercised soon after detection and discovery of fraud and failure on the part of the authorities concerned to exercise such powers within a reasonable time after the fraud is discovered, may justify such action being interdicted by the Court. In the case of STATE OF ORISSA VS BRUNDABAN SHARMA - (1995) SUPP.(3) SCC 249, the Hon\'ble Supreme Court has held that exercise of power of revision after a lapse of 27 years after the date of alleged grant of patta, was legal and valid as its authenticity and correctness was shrouded with suspicious features.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. In a petition under Article 226 of the Constitution of India, if the material on record would go to show that there is a fraud played by any of the parties, the said parties are not entitled for any relief at the hands of this Court. In the case on hand, it is prima facie seen that the entries made in respect of the land in question were transferred in the name of respondent no.3 on the basis of the fraudulent documents submitted by her. The respondent no.3, who has got the entries in respect of the land in question changed in her name on the strength of fraudulent documents, cannot seek any equity at the hands of this Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21. Learned Counsel for respondents 3 to 5 has strenuously contended that he may be given an opportunity to produce necessary documents before respondent no.2 to prove his title. Admittedly, no statement of objection has been filed by respondents 3 to 5 before this Court to establish their title in respect of the property in question. Though the learned Counsel for the said respondents has submitted that the real owner of the property in question has executed a registered Will in favour of respondents 3 to 5, he has not produced the copy of the said document before this Court. Even if it is presumed that the Will has been executed in favour of respondents 3 to 5 in respect of the property in question, the revenue authorities cannot take the said document into consideration and change the entries in the revenue records of the land in question. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22. Admittedly, prior to the order impugned at Annexure-C, the entries in the revenue records of the property in question stood in the name of the petitioner. If respondents 3 to 5 have got documents to establish their title, it is for them to approach the jurisdictional civil court and seek necessary reliefs and it is needless to state that the entries which are restored in the name of the petitioner pursuant to this order will be subject to the outcome of such civil dispute if initiated by respondents 3 to 5. Since the entries in the revenue records have been changed based on an affidavit, which prima facie appears to be a fraudulent document, the orders passed at Annexures-C & D1 and the impugned endorsement issued at Annexure-G cannot be sustained.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23. The writ petition is allowed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The impugned orders dated 25.11.2000 and 02.09.2002 passed by respondent no.1 at Annexures-C & D1, respectively, and the endorsement dated 14.12.2017 issued by respondent no.2 at Annexure-G are quashed. The respondent no.1 is directed to restore the name of the petitioner in the revenue records of the land bearing Survey CMC No.5-5-91/A (old) and 5-5-84 (new) forthwith.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2ddf80a7f25d7767e2ec88fe4300a34d.jpg', '2f968fc02816fec4d07a6316f3d7c757.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-08', 1, '', '', '2022-07-07 18:42:43', '2022-07-11 03:35:21'),
(1916, 'Sqg4mFMN4dI2klDlpuq7owfSF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Rejection of plaint. If the Court finds the suit to be manifestly vexatious not disclosing any right to sue, it would be justified in exercising the power under Order VII Rule 11A CPC. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Krishna Wadehira and others Vs Ram Prasad and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>C.R.P 86 of 2022 decided on 5 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dinesh Kumar Sharma.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Learned senior counsel has submitted that the suit being filed by the\r\nrespondent/plaintiff bearing No. CS 341 of 2019 against the\r\npetitioners/defendants is an abuse of the process of the Court. Learned\r\nsenior counsel submits that it is an admitted case that the\r\ndefendants/petitioners are in possession of the suit property bearing\r\nHouse No. 12, Block-D, Satyawati Nagar/Colony, New Delhi110052.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n3. Learned senior counsel has submitted that it is also an admitted case\r\nthat Sh. Khushi Ram Kain, the predecessor-in-interest of the\r\nrespondent/ plaintiff had purchased the suit property from Delhi State\r\nHarijan Co-operative Association Ltd. The plea of the learned senior\r\ncounsel for the petitioner is that subsequently, late Khushi Ram Kain\r\nsold this property to Smt. Krishna Devi vide sale deed dated 19th\r\nNovember, 1968. Smt. Krishna Devi then sold this property to the\r\npetitioner (Smt. Krishna Wadhera) vide sale deed dated 21st July,\r\n1969.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Learned senior counsel submits that since then, the petitioners are in\r\npossession of the suit property and have also raised substantial\r\nconstruction.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Learned senior counsel has submitted that the civil suit filed by the\r\nrespondent is actually without any cause of action and is also barred\r\nby limitation. It has been submitted that as per Article 65 of the\r\nLimitation Act, 1963, the period of limitation is 12 years, whereas in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the present case the suit has been filed in the year 2019 i.e. after\r\naround 51 years of the execution of the sale deed.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>6. Learned senior counsel further submitted that in the prayer B of the\r\nsuit filed by the respondent / plaintiff, it has been submitted that the\r\nsale deed executed by late Sh.Khushi Ram Kain in favour of Smt.\r\nKrishna Devi be declared as null and void whereas Smt. Krishna Devi\r\nhas not been made a party.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. Learned senior counsel has further submitted that the petitioner\r\nshould not be made to undergo the agony of the Trial on the basis of\r\nbaseless suit being filed by the respondent/plaintiff. He further\r\nsubmits that the learned Trial Court has wrongly dismissed the\r\napplication under Order VII Rule 11 CPC and therefore the impugned\r\norders are liable to be set aside.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8. The civil suit being filed by respondent/plaintiff before the learned\r\nTrial Court is for permanent injunction, declaration and possession.\r\nThe respondents have submitted that they are legal heirs of late\r\nKhushi Ram Kain who had bought the suit property vide sale deed\r\ndated 28th August, 1968. Sh. Khushi Ram Kain passed away on 25th\r\nDecember, 1969 without disclosing the purchase of suit property to\r\nhis legal heirs/plaintiffs/respondents. The plea of the\r\nplaintiffs/respondents before the learned Trial Court is that on 22nd\r\nDecember, 2018 when they were searching for some missing\r\ndocuments in the suit property, they found the registered sale\r\ndeed/conveyance deed of the suit property. It has been submitted that\r\nsince they came to know about the ownership of the suit property only </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in the year 2018 they visited the suit property and found the\r\ndefendants in possession of the same.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>9. The petitioners upon the summons notice being served filed an\r\napplication under Order VII Rule 11 CPC for dismissal of the suit on\r\nthe ground that there is no cause of action to file the present suit and\r\nthe plaintiffs had no legal right over the property in question. It has\r\nbeen submitted that the defendants are residing in the suit property\r\nsince 1969 without any dispute or disturbance from any third party.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. The defendants have also taken the plea that the suit is barred by\r\nlimitation by virtue of Article 65 of the Limitation Act. The Trial\r\nCourt dismissed the application of the petitioners/respondents inter\r\nalia on the ground that the sale deed being produced before the\r\nlearned Trial Court does not even bear the signatures of Vendor and\r\ntherefore the said documents cannot be said to create any right, title or\r\ninterest.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Learned Trial Court also rejected the contention of the\r\ndefendant/petitioner that the suit of plaintiff is barred by the limitation\r\non the ground that the plaintiff has claimed the knowledge of the\r\nexistence of the suit property in the name of late Khushi Ram Kain as\r\nwell as its illegal occupation by defendant in the year 2018 itself.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Learned senior counsel during the arguments has taken a plea that\r\nsince Smt. Krishna Devi has not been made a party, therefore, the suit\r\nis liable to be rejected. However, this plea was not taken before the\r\nlearned Trial Court by the defendant/petitioner in their application\r\nunder Order VII Rule 11 CPC nor the same was argued before learned\r\nTrial Court. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. Learned senior counsel submits that the subsequent sale deeds\r\nexecuted by late Khushi Ram Kain in favour of Smt. Krishna Devi\r\nand the sale deed executed by Smt. Krishna Devi in favour of Smt.\r\nKrishna Wadhera/petitioner are in her possession and the same are in\r\nthe order.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. It is a settled proposition that while deciding such issues, the Court\r\nhas to confine itself to the pleadings made in the petition and the\r\ndocuments relied upon in the plaint as a whole and if a cause of action\r\nis prima facie disclosed, the Court is not required to further inquire\r\nabout truthfulness of allegations on fact. It is also a settled proportion\r\nthat the pleas taken by defendants in written statement are not relevant\r\nat this stage. However, if the Court finds the suit to be manifestly\r\nvexatious not disclosing any right to sue, it would be justified in\r\nexercising the power under Order VII Rule 11A CPC.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>17. The plaintiff/respondent had filed the present suit on the basis that\r\nthe property in dispute is bought by their predecessor-in-interest and\r\nthey are in possession of the same. The plaintiff’s case is that the\r\ndefendants have no right or title of interest over the suit property. Per\r\ncontra, the case of the defendants is that their predecessor-in-interest <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">have purchased the property in interest from late Sh. Khushi Ram\r\nKain.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>18. It is a settled legal position that while exercising of power under\r\nOrder VII Rule 11 CPC, the Court has only to see the averments made\r\nin the plaint and documents relied upon by the plaintiff.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>19. It is also pertinent to mention here that the Court in its revisional\r\njurisdiction can interfere into the order of learned Trial Court only if\r\nthere is manifest illegality or perversity in the order of the learned\r\nTrial Court. It is advantageous to refer Section 115 of the CPC which\r\nprovides that “the High Court may interfere into the order only if the\r\nsub-ordinate court has exercised the jurisdiction not vested in it by\r\nlaw or have failed to exercise jurisdiction so vested or have exercised\r\nof its jurisdiction illegally or with material irregularity.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>20. I consider that none of the above appears in the impugned order.\r\nHence, the revision petition along with pending application stands\r\ndismissed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f4c99f90869533fcc8a00b0860a3feb9.jpg', '62def9159dc3d8977c320a6cbf9549d6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-08', 1, '', '', '2022-07-07 19:10:49', '2022-07-08 17:35:16'),
(4518, 'XgTQOcgvtTLE6AodqVHcKBC8L', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Property purchased by father in the name of minor sons for the benefit of family can be claimed back. Bar under Section 4(1) of the Benami Transaction (Prohibition) Act, 1988 does not apply. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pushpalata Vs Vijay Kumar through LRS and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4078 of 2022 decided on 5 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Uday Umesh Lalit, Justice S. Ravindra Bhat and Justice Sudhanshu Dhulia.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The original first plaintiff – Laxmi Prasad, was the karta of a Hindu Undivided Family (HUF) consisting of his wife, Janki Bai (second plaintiff), two daughters - Sarita and Pushpalata (second and third plaintiffs), and two sons – Vijay Kumar and Rajendra Kumar (the first two defendants). The parties are hereafter referred by name, or as ‘plaintiffs’ and ‘defendants’. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Laxmi Prasad purchased a property measuring 1.6 acres at Khasra No. 44/2 (in Bandobast No. 102, Patwari Halka No. 65 in Lalipur Ward) by agreement dated 15.02.1960 (hereafter “first property”). This first property was purchased in the name of Vijay Kumar (i.e., his son and first defendant). Another piece of property measuring 2332 sq. ft (Plot No. 1/1 in Nazul Street No. 22B; hereafter “second property”) was purchased by Laxmi Prasad on 21/2.05.1966 in the names of his two sons - Vijay Kumar and Rajendra Kumar. It was alleged that Laxmi Prasad later constructed a two-storied building, with his earnings. Similarly, Laxmi Prasad purchased two more properties admeasuring 150 sq. ft. on 18.12.1972 and 453 sq. ft. on 25.05.1973, again in the names of Vijay Kumar and Rajendra Kumar. According to Laxmi Prasad, these properties were bought by him for the proper maintenance and education of his children; he was involved in the construction business.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. On 03.05.1994, Vijay Kumar sold 0.047 hectares out of the land admeasuring 1.6 acres at Khasra No. 44/2 (first property) – which forms the subject of this suit (hereafter “suit property”) – to the third defendant (hereafter “purchaser”). He allegedly further sold 0.019 hectares on 21.06.1995 and 0.049 hectares on 27.08.1996 in favour of the third defendant (despite an interim injunction).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">5. Laxmi Prasad filed a suit on behalf of himself, his wife (who passed away in 1996) and two daughters, on 30.09.1994, against his two sons (first and second defendants) and the purchasers of the property (third and fourth defendants) seeking setting aside of the sale deed dated 03.05.1994 and the relief of declaration of title. The plaintiffs urged that they and the first and second defendants, were members of a HUF, and that original first defendant (Vijay Kumar) was a benami owner who could not have alienated the suit property. It was alleged that the properties were paid for or purchased by the first plaintiff- Laxmi Prasad and that the first two defendants, minors, had no source of income. Rajendra Kumar filed written statement dated 16.02.1995, </span><span style=\"font-size: 12pt;\">and Vijay Kumar and the third defendant (subsequent purchaser) filed their respective written statements on 07.12.1999. In the meanwhile, in 1996, the trial court had restrained the defendants from alienating the suit properties, and later in 2002 from constructing over the suit property.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>6. The trial court framed 14 issues; but was predominantly faced with the issue of whether the first plaintiff was the sole owner, in possession of the properties purchased, and consequently, whether the first defendant was not entitled to sell the disputed land. The trial court by judgment dated 29.09.2004 dismissed the suit on the ground that the original plaintiff had failed to prove by cogent evidence that the suit property was purchased for the welfare of the coparceners of the HUF and declared that the first defendant had the right to sell the disputed properties in his name. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. The written statement filed by the first defendant - Vijay Kumar (now deceased), contains an explicit admission that the suit property was purchased when he was a minor. He does not however, mention how he purchased the same. It is simply claimed that the numerous properties in question, were bought by him, in his name, and his younger brother’s name.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. Laxmi Prasad, in his examination-in-chief, deposed that the suit property had been purchased in 1960 for the benefit of the HUF, in the name of his first son - Vijay Kumar who was 13-14 years old at the time. Similarly, with regards to the second property it was contended that Vijay Kumar was 17-18 years old, and Rajendra Kumar was 6-7 years old. Though facially inconsistent (with respect to the ages of the two sons, given that the two transactions are 6 years apart), the fact remained that clearly both the sons were minors, at the stage when the properties were purchased. It is put to Laxmi Prasad in the crossexamination, whether his in-laws (i.e., maternal grandparents of Vijay Kumar) had lent Vijay the money to purchase the property – which he denied. It is pertinent to note however, that no such plea (of funding by his grandparents), was averred to in Vijay Kumar’s own written pleadings.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. In the present case, the analysis of evidence and pleadings, on the record would show that the first plaintiff, Laxmi Prasad, had averred that the properties were purchased for the maintenance and education of his children; that he had constructed a two storied building at a cost of 7,00,000/- from his earnings as ? a contractor, and that he was in possession of the property. He also positively averred that the two sons (i.e., ostensible owners) were minors, with no source <span style=\"font-size: 12pt;\">of income at the time of purchase. The first defendant (Vijay Kumar) no doubt generally denied these allegations. However, he did not deny that he was a minor at the time of purchase of the properties; he set up no additional plea of any source of income, or that someone had lent the money to fund the purchase of the property. The second defendant (Rajendra Kumar), admitted to plaint allegations, and even deposed in favour of his father. He alleged that the first defendant was unemployed and had assaulted his father.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>24. The plaintiff Laxman Prasad examined himself and deposed to having bought the property in the name of his sons, and that he remained in possession throughout. He also said that the suit property was let out by him - which was supported by an independent witness, who remained unshaken during crossexamination, and said that he took the property on rent of 40 per month, in ? 1972 and that the rent was paid to Laxman Prasad.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>25. The first defendant, and those claiming through him, as subsequent purchasers, did not lead any evidence to show that the first defendant had the means or any source of income, to purchase the property, quite apart from the fact that he was a dependent of Laxmi Prasad, and minor at the time of acquisition of the properties. Furthermore, the first defendant also made inconsistent pleas- apart from asserting that he was owner of the property he alleged to have perfected title, through adverse possession, a plea which he did not support during the evidence. This was fatal to his case: further, the written statement was bereft of any details as regards the date from when he claimed hostile possession, against his father.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>26. In the light of these factors, and the law declared by this court which has elaborated the circumstances under which a claim against a benami owner can be said to be proved, under Section 4(3)(a) of the Act, the conclusions drawn by the trial court and first appellate court, are plainly erroneous, given the evidence on record. The High Court, in the opinion of this court, fell into error in not noticing the correct position in law. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. In the opinion of this court, the High Court fell into error, in ignoring that the circumstances of this case, where the first plaintiff had proved that the properties had been purchased, with his funds, and the sons were minors, with no source of income. The second defendant’s position- throughout all the proceedings, was that the properties were that of the first plaintiff; in other words, he admitted to the suit averments. The plaintiff also proved that he had possession of the property, by adducing positive evidence of tenants, who paid rent to him. In these circumstances, the elements necessary to establish benami ownership within the meaning of Section 4 (3) (a) of the Act, in terms of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">judgments in Binapani Paul and Valliammal (supra) have been satisfied by the first plaintiff.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>30. For the foregoing reasons, the appeal is allowed. The suit is consequently decreed fully. In the circumstances there shall be no order on costs.</b></span></p>', 'dc73b99ef107e524aae895a32fcc04ef.jpeg', 'bbd3997a40bee9bbdac17d61ec2f6dd5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2024-05-15', 1, '', '', '2024-05-15 18:11:11', '2024-05-15 18:13:44');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1918, 'lbgeZmAPeE4jnx8fUOVvzfvHU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mesne profits payable by tenant shall be at the same rate at which the landlord would have able to let out the premises in present and earn the profit if the tenant would have vacated the premises. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/s. Martin and Harris Private Limited and another Vs Rajendra Mehta and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4646-47 of 2022 of 2022 decided on 6 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Indira Banerjee and Justice J.K. Maheshwari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Plaintiffs/Respondents being the owners of the suit property situated at Plot No.1, Block No.D­1, Nagar Nigam No.2844 known as Khinduka  Bhawan, New Colony, Jaipur filed a suit bearing No.4/2016 (9/2002)  for eviction, possession, recovery of rent and permanent injunction. The said suit was filed in November 2002 invoking the Provisions of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred as ‘Old Act’). The suit was decreed vide judgment dated 03.06.2016 passed by Senior Civil Judge No.7, Jaipur. On filing the appeal bearing No.11/2016 before Additional District Judge No.10, Jaipur, it was dismissed on 10.01.2017 confirming the judgment of the Trial Court. The Second Appeal No.144/2017 was filed challenging both the judgments before the High Court which was admitted vide order dated 14.10.2017 granting stay on ejectment. The order of stay was extended time to time. On filing an application under Order XLI Rule 5 read with Section 151 of the Code of Civil Procedure (in short ‘CPC’) by the Plaintiffs/Respondents asking mesne profit due to continuation of stay on eviction decree it was decided vide order dated 18.05.2018. Whereby the appellants were directed to pay the mesne profit @ Rs.2,50,000/­ per month from the date of filing of the application  i.e. 20.12.2017 till disposal of  the  appeal. The directions have also been issued to deposit the arrears of mesne profits upto April 2018 by depositing the same in the bank account of the Plaintiffs within six months, with further direction to pay mesne profits from May 2018 consecutively by 15th  date of every succeeding month. Failing to deposit the amount of mesne profit in future for four months consecutively, Plaintiffs would have right to get execute the decree of eviction. The Plaintiffs were granted liberty to withdraw the amount subject to furnishing surety and undertaking to re­deposit the mesne profits so withdrawn with 9% interest in case they lose in the second appeal. The said order was challenged by filing the Special Leave Petition No.19863/2018 before this Court, which was dismissed as withdrawn with liberty to the Appellants to file review petition before the High Court. On filing the review petition bearing No.95/2018, it was dismissed vide order dated 01.04.2019 which led to file the present appeals challenging the order dated 18.05.2018 as well as the order passed in review dated 01.04.2019 questioning the grant of mesne profit.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The facts unfolded are that the Plaintiffs purchased the property through six different registered sale deeds executed on 23.12.1985. By virtue of those sale deeds, Plaintiffs became the owner of the tenanted premises. Appellants were tenant to  the erstwhile owner and after selling the premises they became tenant of Plaintiffs/Respondents by attornment. Earlier a  suit   under Section 6 of the Old Act was filed by the Plaintiffs/Respondents against the Appellants bearing No.61 of 2002 for determination of the standard rent. During the pendency of the suit an application under Section 7 of the Old Act was filed for fixing the provisional rent which was decided vide order dated   09.01.2004  fixing provisional rent @ Rs.1,00,000/­ per month. The said order was challenged, which was confirmed by the High Court vide  order dated 18.04.2007. The Appellants had filed a Special Leave Petition bearing No.9775 of 2007 wherein this Court fixed the ad hoc provisional rent  @ Rs.60,000/­ per month vide order dated 12.11.2007 with direction to the Trial Court to decide the issue of standard rent expeditiously. The Trial Court vide judgment dated 12.08.2009 decreed the said suit and fixed the standard rent @ Rs.45,000/­ per month. The appeals filed   by  both the parties against the said order are pending before the High Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. In the present appeals the order of the High Court directing to pay the mesne profits @ Rs.2,50,000/­ per month with other ancillary   directions have been questioned. It is contended by learned counsel for the Appellants that as per Section 20 of Rajasthan Rent Control Act, 2001 (hereinafter referred as ‘New Act’), the maximum amount of mesne profit may be payable three times of the standard rent in case the premises is let out for commercial purposes. It is said the mesne profit, as determined by the High Court, is excessive without looking to the year of construction of premises, location of the property which is on inside road of colony and also without taking note of the DLC rate, therefore, the order impugned may be set aside and the quantum of mesne profits may be revised to three times of the amount of rent  making it Rs.1,35,000/­ per month. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Per contra, learned counsel representing the Plaintiffs has strenuously urged that Section 20 of the New Act do not apply to the   suit   or  proceedings initiated under the Old Act and were pending on the date of applicability of the New Act i.e. 01.04.2003, notified in the official gazette. The argument of the Appellants to fix mesne profits only three time to the standard rent relying the provisions of the New Act is meritless. The High Court said that the suit property is located on the main road of New Colony, Jaipur situated in the heart of the City being commercial area rightly fixed mesne profit. It is also urged that the order passed by the High Court to fix mesne profit is equitable, just and reasonable with a direction to re­deposit of mesne profits with 9% interest in case of withdrawal by Plaintiffs or the Plaintiffs loses in the second appeal. In such circumstances, interference in these appeals is not warranted.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 6. After having heard learned counsel  appearing on  behalf of both the parties, it is not in dispute that in the previous proceedings bearing No.61 of 2002 filed under Sections 6 and 7 was under the Old Act, wherein the standard rent was fixed Rs.45,000/­ per month to the suit  property. During those proceedings, the present suit seeking decree of eviction was filed by Plaintiffs under the provisions of Old Act in November 2002 prior to commencement of the New Act. Thus, on the date of commencement of the New Act, the present suit was pending and vide judgment dated 03.06.2016 Trial Court decreed the suit, which was confirmed in appeal by Lower Appellate Court on 10.01.2017. Challenging the judgment and decree concurrently passed by the two Courts, Second Appeal No.144/2017 has been filed by the Appellants, which has been admitted on 14.10.2017 and stay of ejectment passed by the High Court which was extended quite a few times. Thereafter, on filing an application under Order XLI Rule 5 read with Section 151 of CPC asking mesne profits by Plaintiffs, it was allowed vide order dated 18.05.2018. Against which the Special Leave Petition  bearing No.19863/2018 filed by Appellants was dismissed as withdrawn with liberty to file a review petition after noting the submissions made before this Court.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>On perusal of the order, it is clear that the Appellants raised a plea that maximum payable mesne profits as per Section 20 of the New Act can be three times of the rent in case the premises let out for commercial purposes. It was said that the standard rent was fixed @ Rs.45,000/­ per month as a result of which three times would come to Rs.1,35,000/­, however, the direction of mesne profits @ Rs.2,50,000/­ per month by the High Court is unjust. This Court without expressing any opinion with respect to fixing the quantum of mesne profits directed to approach the High Court by filing the review.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. In the above said facts, the argument advanced by the Appellants in the matter of grant of mesne profit to the extent of three times to the standard rent in terms of Section 20 of the New Act is required to be addressed first. Section 20 of the New Act deals with the execution of the orders of the Rent Tribunal in the manner so prescribed. Sub­section (3) makes it clear that if the tenant does not vacate premises within three months of the date of issue of certificate for recovery of the possession, in that event he is liable to pay mesne profits at the rate of 2 times the rent in case premises let out for residential purposes; at the rate of three times the rent in case of premises let out for commercial purposes as applicable in the facts of the present case. On the said pretext, it is contended that the direction of mesne profits more than three times is contrary to the said provisions. The other side contends that the New Act has come into force on 01.04.2003 by way of notification published in the Official Gazette. As per Section 32 of the New Act, the repeal and savings of the Old Act has been specified.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>From the aforesaid for the present  case only sub­section  (3) is relevant, which has been given overriding effect to other provisions by which the applications or suit or other proceedings filed under the Old Act (Repealed Act) pending on the date of commencement of the New Act before any Court shall be continued and disposed of in accordance with the provisions of the Old Act (Repealed Act) as the Old Act had continued in force and this Act had not been enacted. Thus, it is clear that the suit or proceedings, if any, pending on the date of notification issued by the State Government for applicability of the New Act such proceedings would continue under the Old Act and New Act has no application. Therefore, in our considered view, the High Court has rightly rejected the contention while dismissing the review petition and rightly held that Section 20 of the New Act, by which three times mesne profits to the standard rent was made permissible for the suit or proceedings started under the New Act, have no application in suit or proceedings initiated under Old Act and pending on the date of commencement of New Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.  Now, reverting on the issue of determination of the amount of mesne profits @ Rs.2,50,000/­ per month is concerned, the guidance may be taken from the judgment of Marshall Sons & Co. (I) Ltd. vs. Sahi Oretrans  (P) Ltd. and Another – (1999)  2 SCC 325, in which this Court held that once a decree for possession has been passed and the execution is delayed depriving the decree holder to reap the fruits, it is necessary for the Appellate Court to pass appropriate orders fixing reasonable mesne profits which may be equivalent to the market rent required to be paid by a person who is holding over the property. In the case of Atma Ram Properties (P) Ltd.  vs.Federal  Motors (P)Ltd.  – (2005)  1  SCC 705, this Court held that Appellate Court does have jurisdiction to put reasonable terms and conditions as would in its   opinion reasonable to compensate the decree holder for loss occasioned by delay in execution of the decree while granting the stay. The Court relying upon the provisions of the Delhi Rent Control Act, observed that on passing the decree for eviction by a competent Court, the tenant is liable to pay mesne profit or compensation for use and occupation of the premises at the same rate at which the landlord would have able to let out the premises in present and earn the profit if the tenant would have vacated the premises. The Court has explained that because of pendency of the appeal, which may be in continuation of suit, the doctrine of merger does not have effect of postponing the date of termination of tenancy merely because the decree of eviction stands merged in the decree passed by the superior forum at a later date. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. Thus, after passing the decree of eviction the tenancy terminates and from the said date the landlord is entitled for mesne profits or compensation depriving him from the use of the premises. The view taken in the case of  Atma  Ram  (supra) has been reaffirmed in the case of State of  Maharashtra vs. Super Max International Pvt. Ltd. and others ­ (2009) 9 SCC 772 by three Judges Bench of this Court. Therefore, looking to the fact that the decree of eviction passed by Trial Court on 03.03.2016 has been confirmed in appeal; against which  second appeal is pending, however,  after stay on being asked the direction to pay mesne profits or compensation issued by the High Court is in consonance to the law laid down by this Court, which is just equitable and reasonable.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. The basis of determination of the amount of mesne profit, in our view, depends on the facts and circumstances of each case considering place where the property is situated i.e. village or city or metropolitan city, location, nature of premises i.e. commercial or residential are and the rate of rent precedent on which premises can be let out are the guiding factor in the facts of individual case. In the case at hand, the High Court in the impugned order observed that the tenanted property is located on the main road of New Colony near Panch Batti which is a commercial area in the heart of Jaipur City. The said finding has been arrived considering the voluminous documentary record dispelling the plea taken by the Appellants. However, the Court in the facts and circumstances found it reasonable to determine  Rs.2,50,000/­ per month as mesne profit. As per the discussion made herein above so far as the area of the tenanted premises and the location of the property is concerned, the findings of fact have been recorded by the High Court, in our considered opinion, those findings are based on the material brought on record which are neither perverse nor illegal. The amount of mesne profit as fixed @ Rs.2,50,000/­ is also just and proper looking at the span of time i.e. 10 years from the date of fixing of the standard rent and six year from the date of passing of the decree of eviction. Therefore, the amount of mesne profit has rightly been decided by the High Court while passing the order impugned. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. In view of the foregoing discussion, in our considered opinion, the order fixing the mesne profit and the order passed on the review petition, filed by the Appellants, are just and proper which do not warrant any interference. Therefore, both the appeals are dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a65ae18a45b297066377f729959ed896.png', '85aa4c09521ba63df5427eb687df6515.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-08', 1, '', '', '2022-07-07 22:06:59', '2022-07-08 08:31:03'),
(1921, 'AdH5nPfylFa0bXf9OOUa9hTBL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mere breach of a development agreement cannot be made use of by the prospective purchaser to set criminal law in motion alleging criminal breach of trust. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Smart Owner Services and others Vs State of Karnataka and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 6199 of 2020 decided on 1 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioners/accused 1 to 6 in Crime No.214 of 2020 pending before the Additional Chief Judicial Magistrate, Bangalore Rural registered for offences punishable under Sections 120B, 109, 34,422, 406, 415, 420, 471, 403, 425, 409, 405 and 463 of the IPC and Sections 66C and 66D of the Information Technology Act, 2000 are before this court calling in question registration of the aforesaid FIR and investigation in the matter.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:- On 05-09-2020 the complainant represented by his Power of Attorney Holder registered a complaint against one M/s Smart Owners Services India Private Limited, M/s Smart Asset Services India Private Limited and several other companies in respect of alleged offences committed by the Directors and employees of the Companies arising out of Master Services Agreements dated 23-08-2016, 07-03-2017 and Plot Booking Agreement dated 10-09-2016 concerning booking of 6 apartments in the apartment complexes supposed to be constructed by the companies. The complaint relates to two real estate projects viz., plotted development project named HIL and an apartment development project named PRK. The petitioner/company Smart Owners had marketed these apartments to the complainant. It is the allegation of the complainant that contractors of the 1st petitioner/company had lured the complainant for purchase of apartments in the supposed to be constructed apartment complex.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. In the year 2016 it is alleged by the complainant that advertisement, through call messages, emails, brochures were piled upon the complainant and a pre-signature agreement was also executed offering the complainant a pre-launch opportunity to book plots in an ultra-premium gated plotted development project for a discount price of 980/- per sq. feet in an area where comparable plots are being sold at Rs.2000/- to 2500/- per sq.ft. The complainant appears to have made payment towards two projects one in HIL project and the other in PRK project as described in the complaint. Further allegation in the complaint is that the petitioners with dishonest intention have misappropriated the amount that was paid by the complainant towards booking of the plots. As service fee in the Escrow account that was to be made at the time of delivery of apartments was illegally withdrawn and made use of. In all, the allegation  against  the  petitioners  was  of  misrepresentation, Pinehill owns or has acquired rights of 100 acres of HIL land and are developing flats in the said land and brochures were printed to that effect to lure customers and one such customer was the complainant who has lost his money due to the act of cheating by the petitioners.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 5. Pursuant to registration of complaint, crime is registered against the petitioners for the aforesaid offences. On registration of the crime, the petitioners have knocked the doors of this Court in the subject petition and this Court after entertaining the petition granted an interim order of stay of all further proceedings by its order dated 27-11-2020 and the same is in subsistence even as on date. In the light of the interim order being in operation, further investigation in the matter has not gone on. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The learned counsel appearing for the petitioners would vehemently argue and contend that all the allegations of the complainant  are  imaginary, there has been some delay  in execution of the project which would not give rise to a criminal liability as is sought to be projected by the complainant. There is neither cheating nor criminal breach of trust, as in terms of the brochure, the complainant on getting interested in the project enters into an agreement which is an escrow agreement and for non-delivery of plots pursuant to an agreement, criminal law cannot be set in motion.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>7. On the other hand, the learned senior counsel Sri Reuben Jacob appearing for the 2nd respondent/complainant would vehemently refute the submissions made by the learned counsel for the petitioners to contend that the petitioners are guilty of misappropriation of the property of the complainant. The property he would say is the amount that was given by the complainant towards purchase of apartments. It is on this line the learned senior counsel would submit that it is a criminal breach of trust, as the property/money was handed over to the petitioners by way of trust. The learned senior counsel would further submit that due to misrepresentation of the petitioners that they are constructing such flats and not even one flat is constructed even as on date, the complainant was induced into shelving out huge sums of money and would submit that it is a matter of trial in which the petitioners have to come out clean. The matter is still at the stage of investigation and it is only after the investigation is completed the role and intention of the petitioners would come to light.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>8. The afore-narrated facts with regard to genesis of the problem are not in dispute. One Ramachandra Muniraju Venugopal, power of attorney holder of the complainant files the complaint against four companies/accused 1 to 4. The petitioners are office bearers of the companies working in several activities. The allegation of the complainant is that he had invested Rs.2,26,38,000/- during the year 2016 on a plotted development project viz., HIL for about 10 plots and Rs.3,32,32,500/- in an apartment development project named PRK for 6 apartments during the year 2017. The said amounts were deposited in two separate escrow accounts, which according to the parties is to maintain transparency and protection of the amounts so invested. The said investment comes about on account of advertisement made by the petitioners about the purchase projected. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>9. The allegation is that at the time of making payment and booking of plots the complainant was made to believe that Pinehill, one of the accused, had acquired rights over 100 acres for HIL project and the company Imperial/accused had acquired rights over 26 acres for PRK project. The complainant alleges that on 27-12-2018 he met the 6th petitioner at the office and at that time it was made known to him that the company had acquired only 50 acres of land for HIL project and was in the process of acquiring additional 50 acres of land and hence the project was not yet completed. It was also made known to him that the company had submitted its plan for approval to Chikkaballapur Planning Authority. It is the further allegation of the complainant that in the year 2019 he had requested the petitioners several times to provide documentary evidence of ownership of land for HIL and PRK projects and the petitioners had failed to do so. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>10. The complainant further broaching with regard to the projects taken up by the petitioners comes to know that few of the projects had not yet started by the petitioners contrary to their assurance at the time when money was demanded by them. What triggered registration of the crime is that escrow account that was created and amount deposited in escrow account did contain a component of service charge of 6% of the entire amount that was deposited. The service charge deposited in the escrow account was partly withdrawn by the petitioners as part of their service fee. The moment service fee was withdrawn from escrow account, the complaint is registered by the complainant on the score that the petitioners have not handed over the apartments contrary to their assurance and have used service charge without fulfilling the terms of the agreement  and  have  thus  defrauded  the  complainant<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>11. It is not in dispute that withdrawal of service charge was also a part of the agreement. The amount invested by the petitioners still lies in the escrow account. It is only service fee that is withdrawn for day to-day operation of the petitioners that too in terms of the agreement.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>Section 405 of the IPC mandates that whoever entrusted with the property, dishonestly misappropriates or converts it to his own use, would become punishable under Section 406 of the IPC for criminal breach of trust. Here again, the service charge that the petitioners would in a way be entitled to in terms of the agreement is utilized by them. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>12. The other allegation is Section 409 of the IPC. Section 409 of the IPC deals with criminal breach of trust by a public servant or agent. Even this provision cannot be invoked in the light of the reason as to why Sections 403 and 406 of the IPC could not be invoked.  The allegation is cheating under Section 420 of the IPC. To drive home the offence of cheating under Section 420 of the IPC, the ingredients of Section 415 of the IPC will have to be satisfied.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>13. The complainant herein, on going through the brochure and other details with regard to the projects that the petitioners proposed to start, invested money with eyes wide open, pursuant to an agreement being entered into between the parties. The foundation of allegation of cheating is made in the complaint only on the ground that the petitioners had misrepresented that they would acquire 100 acres of land and had acquired only 50 acres of land and had not procured any land for PRK project and were still in the process of acquisition of these lands. However, the complainant had entered into the agreement with the developer company for delivery of flats once it is completed. Therefore, no dishonest intention right from the beginning of the transaction or inducement by the petitioners upon the complainant could be made out in the transaction between the parties. All other allegations which touch upon cheating would all be rendered unsustainable in the light of the aforesaid reason that the entire transaction between the parties arise out of an agreement entered into for delivery of flat. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>14. Section 463 of the IPC which deals with forgery is invoked, on an imaginary plea that supplementary booking agreements are false documents. It is an agreement that is entered into between the parties and the complainant or his power of attorney holder is a signatory to the said agreement. Having signed the agreement it would not lie with the complainant to allege that it was forged. Section 463 of the IPC dealing with forgery mandates that whoever creates false documents with intent to cause damage becomes liable for forgery. The agreement entered into between the parties either the main agreement or the supplemental booking agreement cannot be held to be a forged document. Section 471 of the IPC that is alleged also would be unsustainable for the reason that it is an agreement. If invocation of any provision of law afore-quoted is uninvokable, there can be no question of Section 109 of the IPC being alleged, as Section 109 of the IPC deals with abetment to a crime. In view of the afore-quoted analysis, the action arising out of an agreement cannot be held to be a crime and the question of abetment or criminal conspiracy under Section 120A of the IPC would not arise. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>15. The other allegations made are concerning Sections 66C and 66D of the Information Technology Act, 2000. Sections 66C and 66D also deal with communication made electronically to cheat by impersonating somebody else. There can be no cheating in law of a project forwarded by way of mail to the complainant with an intention to cheat. If cheating under Section 420 of the IPC cannot be driven home, Sections 66C and 66D can hardly be invoked. Therefore, none of the provisions of law are invokable in the case at hand.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>16. If the facts obtaining in the case at hand qua the judgments rendered by the Apex Court are noticed, it would become unmistakably clear that usage of service charge by the petitioners that too in terms of the agreement cannot become a subject matter of crime for the offences so alleged. The entire demand of the complainant, as could be gathered from communications made to the petitioners is, demand for refund of  6%  service  fee  as  per  Clause  6  of  the  Master  Services Agreement dated 23-08-2016. The Master Services Agreement that was entered into between the petitioners and the complainant clearly indicates usage of service charge by the petitioners. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>Clause 6 which deals with ‘fees and terms of payment’ empowers the petitioners of an agreement by the complainant that the fee shall be directly withdrawn by the company from the escrow account at the time of client’s purchase. The amount so withdrawn by the petitioners even if it were to be earlier to the client’s purchase, it would not give a cause of action to the complainant to set the criminal law in motion. The agreement also speaks of resolution of the dispute between the parties by way of arbitration in terms of clause 5.7.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>17. All these would clearly show that it is an agreement between the parties for a particular transaction and breach of such agreement cannot be made use of to set criminal law in motion. Insofar as judgments relied on by the learned senior counsel representing the 2nd respondent are concerned, they are distinguishable on facts obtaining in those cases at hand without much ado. The Apex Court in the case of INDIAN OIL CORPORATION (supra) clearly holds that if it is breach of contract, criminal law cannot be set in motion where the finding is, ingredients of mischief or criminal breach of trust were clearly made out. The Apex Court in the case of RAJESH BAJAJ (supra) also held that merely because it is a criminal transaction the offence of cheating cannot be given up if the ingredients of dishonest intention or fraudulent intention are clearly made out. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>18. In the light of the reasons rendered hereinabove, it cannot be said that there was any dishonest or fraudulent intention on the part of the petitioners. Other judgments relied on by the learned senior counsel for the complainant in the case of  AWADH  KISHORE  GUPTA  or  RAJESH  AGARWAL  (supra) were all judgments on facts of those cases and at that relevant point in time. The law laid down by the Apex Court in the later cases either by Benches of equal strength or larger Benches would become applicable to the facts of the case at hand. Therefore, in the teeth of the afore-narrated facts and the law laid down by the Apex Court in the cases of MITESH KUMAR J. SHA,  SUSHIL  SETHI  AND  VIJAY  KUMAR  GHAI  (supra), permitting further proceedings to go on against the petitioners would become an abuse of the process of law and result in miscarriage of justice. However, the obliteration of proceedings against the petitioners will not preclude the complainant to initiate such civil proceedings in accordance with law.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space: pre;\">	</span>The Criminal Petition is allowed and the proceedings in Crime No.214 of 2020 pending before the Additional Chief Judicial Magistrate, Bangalore Rural stand quashed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space: pre;\">	</span>It is made clear that the observations made in the course of this order are only for the purpose of consideration of the case at hand under Section 482 of the Cr.P.C. This would not become an impediment for the complainant to initiate any such proceedings available in accordance with law, at which point in time the observations made hereinabove would not influence or bind those proceedings.</b></font><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3dfc2cf81dcd7dace6d42f3af7e21b1e.JPG', '354cc722d9d6d6fbbddb6a8ed30a5592.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-11', 1, '', '', '2022-07-08 19:19:15', '2022-07-11 15:02:36');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1922, 'zRxqDg1x4qQaq6BlOeWoRGkFq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. When the article from which \'chance fingerprint\' was lifted is not produced, mere report of the fingerprint expert cannot be relied on. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Thippeswamy Kunta Vs State of Challakere Police.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 911 of 2012 decided on 6 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.B. Prabhakara Sastry.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The summary of the case of the prosecution in the Trial Court was that, on the date 03-06-2010, during night, the accused by removing the tiles of the roof of the house of CW-1 - Nagaraj, situated at I Cross, near Veerabhadra Lodge on Bellary Road, Challakere, entered into the said house and committed theft of silver articles and cash kept in the Almirah and that on the date 13-06-2010 at 11:00 a.m., CW-7 to CW-11, conducted a raid and apprehended the accused. The Investigating Officer recovered several of the stolen articles from the accused, including the one which were stolen in the instant case, as such,  charge sheet was filed against the accused for the offences punishable under Sections 457, 380 and 75 of the IPC. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The accused appeared in the Trial Court and contested the matter through his counsel. The accused pleaded not guilty. As such, in order to prove the alleged guilt against the accused, the prosecution got examined in all seven (7) witnesses from PW-1 to PW-7, got marked documents from Exs.P-1 to P-6 and produced Material Objects from MO-1 to MO-3.  However, neither any witness was examined nor any documents were got marked on behalf of the accused.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. The learned counsel for the revision petitioner, in his argument submitted that, he would not deny or dispute the alleged incident of theft in the house of PW-1, however, his only contention is that, the alleged recovery at the instance of the accused, is not proved. He further submitted that, mere tallying of a \'Chance Fingerprint\' cannot be the sole basis for conviction of the accused. In his support, he relied upon a judgment of the Hon’ble Apex Court in the case of Digamber Vaishnav & Anr. Vs. State of Chhattisgarh reported in Law Finder Doc Id#1385623 and a judgment of the Division Bench of this Court in the case of Mallappa Basappa Ihole Vs. The State of Karnataka reported in Indian Kanoon -http://indiankanoon.org/doc/ 141408122/. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. Learned High Court Government Pleader for the respondent, in his brief argument, submitted that, the recovery of the articles at the instance of the accused has been  established.   The  accused  has  failed  to  give  any explanation as to how come the  stolen articles at MO-1 to MO-3 came into his possession. Stating that the Fingerprints recovered from the spot would scientifically establish the involvement of the accused in the commission of the crime, learned High Court Government Pleader relied upon a judgment of the Hon’ble Apex Court in the case of B.A. Umesh Vs. Registrar General, High Court of Karnataka reported in (2011) 3 Supreme Court Cases 85.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. From the above evidence, it is clear that the evidence of PW-1 that, on the night of the date 03-06-2010, an incident of theft in his house  took place wherein the culprits are said to have stolen a silver plate, two silver cups, one silver small pitcher (\'pot\' like) has not been specifically denied or disputed. The evidence of PW-5 also goes to show that, in that regard, on the  very next  morning i.e. on the date 04-06-2010, PW-1 had lodged a complaint with them as per Ex.P-1. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. The evidence of PW-2 would further go to show that, while acting as a pancha to the scene of offence panchanama at Ex.P-2, he noticed that, in the place of offence, which was the house of the complainant, few tiles of the roof were taken away and several of the articles inside the house including the sarees were found scattered and the door of the Almirah was found opened.  Thus, the evidence of PW-1, PW-2 and PW-5 on this aspect establishes beyond doubt that, on the night of the date 03-06-2010, an incident of lurking house-trespass had taken place wherein three silver articles were found stolen. Since PW-1 has identified the alleged stolen articles, at MO-1 to MO-3 stating that, they were the silver articles stolen from his house, it also stands established that the stolen articles were MO-1 to MO-3 and they were silver articles. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. The next question would be whether it was the accused and accused alone who had committed the alleged offence of lurking House trespass and theft. Admittedly, the entire case of the prosecution is based upon the circumstantial evidence. The sole circumstance based upon which the prosecution accuses that it was the accused and accused alone who has committed the alleged offences is, the tallying of all the \'Chance Fingerprints\' with that of the accused\'s and alleged recovery of MO-1 to MO-3 at the instance of the accused.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>22. It is in this connection, the learned counsel for the revision petitioner (accused) is relying upon the Division Bench decision of this Court in Mallappa Basappa Ihole\'s case (supra), wherein a Division Bench of this Court, in a similar circumstance of alleged comparison of the \'Chance Fingerprints\' was pleased to observe that it was not proper to accept the Fingerprint expert’s report at Ex.P-14 and the annexures appended thereto for several reasons, including the reason that the evidence of the Fingerprint expert was not specific with regard to its date and time when he lifted the alleged ‘Chance Fingerprint’. Secondly, the said \'Chance Fingerprint\' was not produced before the Court. Thirdly, the Beer bottle from which the \'Chance Fingerprint\' was said to have been lifted was not seized. Lastly, the evidence of the Fingerprint expert was silent as to the manner in which he lifted the \'Chance Fingerprint\'.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>23. In the case of Digamber Vaishnav & Anr.Vs. State of  Chhattisgarh  (supra), with respect  to  offences  under Sections 302 read with Section 34 and Section 394 read with Section 34 of the IPC, wherein also, the evidence of Fingerprint expert was one of several aspects involved, the Hon’ble Apex Court was pleased to observe that, the expert who examined the articles at the place of occurrence and found some Fingerprints, was not  examined. The person who took the sample Fingerprints also was not examined. There was no explanation as to why the articles were just left at the scene after developing the Fingerprints and why they were not seized and sent for analysis on the same day. Further, no prints were found on the doors or the steel almirah to substantiate the robbery. Hence, it opined that the process of lifting the Fingerprints was suspicious. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>24. In HARI OM ALIAS HERO VS. STATE OF UTTAR PRADESH reported in (2021) 4 Supreme Court Cases 345, where the offences involved were of dacoity, killing four persons and attempt of throttling a child and the evidence collected by the Investigating Officer was said to have included Fingerprints and the opinion of the Fingerprint expert, the Hon’ble Apex Court, under Section 45 of the Indian Evidence Act, 1872, reiterated that the opinion of the Fingerprint expert is not a substantive evidence and as such, the opinion can only be used to corroborate some items of substantive evidence which are otherwise on record. It was further observed by the Hon’ble Apex Court that, the presence of Fingerprints at the scene of crime was not material, when there was no clarity in the process adopted by the investigating machinery for lifting fingerprints from the scene of crime and further analysis made thereafter.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>26. In the instant case also, as observed above, neither PW-5 - Investigating Officer nor PW-6 - Fingerprint expert, has, anywhere, stated as to from which spot or from which article the \'Chance Fingerprint\' was lifted, and by whom and in what manner. The person who is said to have lifted the Fingerprint was not examined by the prosecution for the reasons best known to it.  The alleged \'Chance Fingerprint\' and also the article from which it might have been lifted also have not been produced before the Court. In such a circumstance, it is not safe to rely upon the mere report of the Fingerprint expert that the \'Chance Fingerprint\' given to him for examination was corresponding to the fingerprint of the accused and proceeding to convict the accused. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>27. In such a circumstance, when there are several gaps in the case of the prosecution as to the description of the place and the article from which the fingerprint was lifted, as to who lifted the Fingerprint, as to the manner adopted in lifting the fingerprints and also in the absence of seizing and producing the article from which the Fingerprint was said to have been lifted, the same would make it unsafe to rely upon the report given upon the examination of such an alleged Fingerprint by the Fingerprint expert. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>28. The second major point of contention is the alleged recovery of the Material Objects at MO-1 to MO-3, at the instance of the accused. Admittedly, in the instant case, it is only PW-3 and PW-7 who have spoken about the alleged recovery of the articles at MO-1 to MO-3. PW-3 was a person working in a Bakery. He has stated that while he was going near Taluk office, the Police summoned him and requested him to be a pancha for a seizure panchanama. In his presence, the Police seized MO-1 to MO-3. Further, this witness categorically stated in his examination-in-chief that the Police had not shown him the accused stating that he was the one who had committed the theft. In his cross examination, he has stated that, he was taken to a place called Kelagalahatti near Chikka ullarti. The Police Sub-Inspector (PW-7) and himself had been there. However, this witness has not stated whether the accused had led them to the said place or whether those three articles were produced by the accused in the said place. Therefore, the evidence of PW-3 is not safe to believe.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>30. In the said circumstance, when the Fingerprint expert\'s report regarding tallying of the fingerprints does not inspire confidence to believe upon and the alleged recovery is also not established by the prosecution, the major links in the chain of events are to be held as disappearing, as such, in a criminal case, where it is purely based upon the circumstantial evidence every link of the chain of events is required to be established by the prosecution. The absence of linkage of major events like alleged recovery and matching of fingerprints leave a major lacuna in the case of the prosecution. In such a case, it is not safe to convict the accused for the alleged offences. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>31. However, both the Trial Court and the Sessions Judge\'s Court did not appreciate the evidence on the Fingerprints and the recovery in their proper perspective, on the other hand, accepting the contention of the relevant witnesses, without properly analysing them, both the Courts have hastily jumped to a conclusion, which resulted in holding the accused guilty of the alleged offences.  Since the said finding is now proved to be a perverse and erroneous one, interference by this Court in the impugned judgments of both the Courts is warranted and the prosecution has to be held that, it failed to prove the alleged guilt against the accused beyond all doubts.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>[i]<span style=\"white-space:pre\">	</span>The<span style=\"white-space:pre\">	</span>Criminal Revision Petition stands allowed;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>[ii]<span style=\"white-space:pre\">	</span>The impugned judgment of conviction and order on sentence dated 09-01-2012, passed by the Court of the Judicial Magistrate First Class, at Challakere, in C.C.No.898/2010, holding the present petitioner (accused) guilty for the offences punishable under Sections 457 and 380 of the Indian Penal Code, 1860, which was further confirmed  by  the  judgment  and order  dated 10-07-2012, passed by the Principal District and Sessions Judge at Chitradurga, in Criminal Appeal No.31/2012, are hereby set aside; </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>[iii]<span style=\"white-space:pre\">	</span>The revision petitioner (accused) -Thippeswamy @ Kunta Thippaga, S/o. Gadi Boraiah, Aged about 47 years, Chikkaullarthy, residing at Rahimnagar, Challakere Taluk, Chitradurga District. Pincode: 54401, stands acquitted of the offences punishable under Sections 457 and 380 of the Indian Penal Code, 1860;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ae382ede843fcf681d2ef37298484534.JPG', '6f97146862a39ca4ff80c64e087dabe6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-11', 1, '', '', '2022-07-09 00:42:03', '2022-07-11 08:26:20'),
(1923, '2OebM5gXMY9TxvLK6Kk2I9vAn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque bounce case. Taking sworn statement first then taking cognizance and issuing summons would not vitiate the proceedings. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">M/S OMR Investments LLP and others Vs Pardhanani Chatrabhuj Bassarmal.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 8225 of 2022 decided on 4 July 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice M. Nagaprasanna.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">The petitioners are before this Court calling in question proceedings in C.C.No.9809 of 2022 pending before the XXI Additional Chief Metropolitan Magistrate at Bengaluru and consequently to quash the complaint that led to registration of Crime in the aforementioned criminal case instituted for offences punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘the Act’ for short).</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">2. Accused No.1/1st petitioner - OMR Investments LLP (for short ‘the Firm or Company’) is a limited liability partnership firm engaged inter alia in the business of construction and development of real estate. Accused No.3/Petitioner No.2 is a partner of petitioner No.1/Firm and accused No.7/petitioner No.3 is one of the authorized signatories of petitioner No.1/Firm. The petitioners in the companion petition i.e., W.P.No.8227 of 2022 are accused Nos. 2, 5 and 6. Therefore, accused 1, 2, 3, 5, 6 and 7 are before this Court barring accused No.4. The complainant/ respondent is common in both these petitions. Both these cases arise out of C.C.No.9809 of 2022 which arose out of the complaint in P.C.R.No.5711 of 2022 registered by the complainant. It is, therefore, both these cases are taken up together and considered in this order.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">3. Shorn of unnecessary details, facts in brief that are germane for consideration of the lis, are as follows: The 1st petitioner/Firm is a limited liability Company and the other petitioners are connected with the affairs of the Company in the capacity of either Directors or signatories of the partnership firm or signatories to the instruments involved in the transaction. It is the case of the complainant that a proposal was given that Embassy Company would execute a memorandum of understanding and a co-development agreement in respect of property development of an immovable property belonging to Embassy Company situated in the Special Economic Zone and a request was made to the complainant to reinvest the amounts that he would receive by sale of the aforesaid equity shares in the project for which the complainant would become the absolute owner. It appears, that a meeting of the Board of Directors of the Embassy Company was held on 21.10.2016 and the proposal given by the Embassy Company to the complainant was discussed and the result of the discussion was execution of a share purchase agreement between the Company and the complainant regarding sale of equity shares of the complainant in M/s Mac Charles (I) Limited for the very amount that is arrived at in the share purchase agreement. The amount was received by the complainant to his account.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">4. Once the amount was received from the sale of equity shares of M/s Mac Charles (I) Limited, the Embassy Company came up with the property development scheme that was evolved by the Company after the approval of the Board. A draft Memorandum of Understanding, draft construction agreement, a draft co-development agreement and a draft lease deed were all approved by the Board of Embassy Company and the said Company also represented to the complainant that the said immovable property situated in the special economic zone needed necessary approvals from the Ministry of Commerce, Government of India and further necessary approvals to co-opt the complainant as a co-developer of the said immovable property. In furtherance of this agreement, certain transactions took place between the parties and subsequently on 6-12-2016, two supplementary documents styled as loan agreements were entered into between accused No.1’s firm represented by accused Nos.2 and 3 and the complainant for a sum of Rs.490/-crores which was to be invested in the property development scheme. Accused No.2 is said to have executed a deed of guarantee in favour of the complainant guaranteeing the entire transaction and being bound by the said transaction.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">5. The complainant claims that based on all the above assurances and promises given by the Embassy Company, the complainant transferred the amount afore-quoted in three installments. Since the amount was legally transferred by the complainant to accused No.1’s firm and later by the firm to the Embassy Company as Inter-Corporate Debt, accused No.2 before the promoter Director of the Embassy Company and Managing Partner of the Firm represented to the complainant that reversal or refund of the amount that the complainant had paid had to take place only through the 1st accused/Firm and the 2nd accused suggested drafting a fresh supplementary document styled as loan agreement which would be executed by the Firm favouring the complainant for refund of Rs.390/- crores and would also refund Rs.10/- crores in due course to the complainant in installments.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">6. The loan agreement was executed between the Firm, the complainant and the authorized signatory accused No.7. In terms of the agreement, accused had agreed to repay the said amount with interest within 12 months and the 2nd accused also executed a fresh deed of guarantee in favour of the complainant along with post dated cheques for Rs.390/- crores favouring the complainant. The details of the post-dated cheques issued are a part of the complaint. They vary from 5-11-2021 and 31-05-2022. When time arose for presentation of these cheques and were presented, all of them were dishonoured for ‘want of sufficient funds’. The complainant took up legal proceedings by causing legal notices upon the accused, after the accused replied to the same, complainant registers a crime invoking Section 200 of the Cr.P.C. in P.C.R.No.5711 of 2022. This is the broad skeleton of transaction between the parties, as is pleaded in the complaint. Further intricate narration of details of transactions between the parties would not be necessary at this juncture, for consideration of the issues that are brought up by the accused before this Court.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">7. A private complaint was registered through a Special Power of Attorney holder of the complainant as the complainant resides in Dubai&nbsp; and is&nbsp; 80 years old. The complainant was examined by the learned Magistrate on 24-03-2022 by receiving his affidavit as a sworn statement, takes note of 75 documents Exs.P1 to P75, marks them and posts the matter for orders, takes cognizance of the offence on 24-03-2022 and issues summons. It is this order of the learned Magistrate that drives the petitioners/accused to this court in both these petitions.</font><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">11. I have given my anxious consideration to the submissions&nbsp; made&nbsp; by&nbsp; the&nbsp; respective&nbsp; learned&nbsp; counsel appearing for the parties and in furtherance whereof, the following issues would arise for my consideration:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(i)<span style=\"white-space: pre;\">	</span>Whether the complaint filed by the special Power of Attorney holder of the complainant was maintainable in the teeth of the facts in the case at hand?</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(ii)<span style=\"white-space: pre;\">	</span>Whether the order taking cognizance is vitiated on account of it not being preceded with recording of sworn statement?</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(iii)<span style=\"white-space: pre;\">	</span>Whether the cheques issued as security as contended would come within the ambit of Section 138 of the Act?</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(iv)<span style=\"white-space: pre;\">	</span>Whether the Chairman or Directors of the Company can be hauled into these proceedings involved in a transaction of mammoth proportion?</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">Issue No.1: (i) Whether the complaint filed by the special Power of Attorney holder of the complainant was maintainable in the teeth of the facts in the case at hand?</font><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">12. To consider the issue whether the complaint was maintainable at the hands of a Power of Attorney holder qua the contentions of the learned senior counsel that it did not contain the narration that he was completely aware of the facts, it is necessary to notice the Power of Attorney and the preamble to the complaint.&nbsp;Document No.1 that is appended to the complaint is the Power of Attorney. A reading of the Power of Attorney in tandem&nbsp; with&nbsp; the&nbsp; second&nbsp; paragraph&nbsp; of&nbsp; the&nbsp; complaint (supra) would clearly indicate that the Power of Attorney holder was aware of the transaction and was fully conscious of what he was deposing and to what he is required to represent. Since the entire Power of Attorney was appended to the complaint and the complaint did mention that the Power of Attorney itself was appended, it is deemed to be treated as part and parcel of the complaint. Therefore, the contention of the learned senior counsel that the complaint itself was not maintainable, holds no water. The learned senior counsel places reliance upon the judgment in the case of A.C.NARAYANAN (supra) to contend that the complaint is in utter violation of the dictum of the Apex Court and has to be obliterated is unacceptable for the observations made hereinabove that the complaint did contain all the necessary ingredients for its maintainability.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">In the light of subsequent Three Judge Bench decision, considering the case of A.C.NARAYANAN and observing as afore-quoted, the first sheet anchor of the learned senior counsel is rendered unacceptable, as the complaint does satisfy the requirements of A.C.NARAYANAN as considered in TRL KROSAKI REFRACTORIES LIMITED. I hold the first issue against the petitioners to the effect that the complaint did narrate what is noted to be narrated and accordingly the complaint was maintainable.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">Issue No.2: (ii) Whether the order taking cognizance is vitiated on account of it not being preceded with recording of sworn statement?</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">13.<span style=\"white-space: pre;\">	</span>The learned Magistrate accepts the sworn statement of the complainant through the affidavit and that through his counsel. This was considered to be examination of PW-1 and looks at Exs.P1 to P75, marks them and passes order on the same day, as afore-quoted, taking cognizance and issuing summons. The issue now is whether the sworn statement first being taken, then cognizance and issuing summons would amount to putting the cart before the horse and resultantly vitiating the entire proceedings on account of such procedural irregularity. The learned senior counsel has placed reliance upon judgment of this Court in the case of D.P.SHARMA v. C.R.GOWDA2 to contend that if the order taking cognizance is preceded by recording of sworn statement, it is an incurable procedural irregularity.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">Except jurisdictional issues, Section 460 of the Cr.P.C. renders infirmities curable, as the section deals with irregularities which do not vitiate proceedings and irregularities which vitiate proceedings. Clause (e) of Section 460 deals with taking of cognizance under clause (a) or clause (b) of Sub-section (1) of Section 190 under which cognizance is taken and summons is issued in the case at hand. The effect of Section 460 is considered by the Three Judge Bench of the Apex Court in the case of PRADEEP S. WODEYAR v. STATE OF KARNATAKA in which clause (e) of Section 460 is considered and held that such irregularities would not vitiate the proceedings.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><br></font>In the light of the very provision i.e., Section 460 of the Cr.P.C. and its interpretation by the Apex Court in the case of&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">PRADEEP&nbsp;&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">S. WODEYAR,&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as also&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">judgments rendered by the Co-ordinate Bench of this Court, which are subsequent to the judgments relied on by the learned senior&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">counsel,&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">issue&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">has&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">arisen&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">my consideration is answered against the petitioners, holding that putting the cart before the horse, in all circumstances cannot be a panacea to the accused to contend that the entire proceedings stand vitiated. At best, it is an irregularity which would not impede fair trial to the accused or to the complainant. Hyper-technicalities in the form of irregularities cannot override substantive justice. Thus, fails the second sheet anchor.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Issue No.3: (iii)&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Whether the cheques issued as security as contended would come within the ambit of Section 138 of the Act?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">14.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; white-space: pre;\">	</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The said issue is, whether cheques issued as security, in all circumstances, can claim immunity from proceedings under Section 138 of the Act. The contention of the learned senior counsel that post-dated cheques were issued as security and the submission of the learned counsel for the respondent that they were not, is a matter for trial which would involve serious disputed questions of fact. Insofar as the argument that they are issued as a security, at this juncture, would take away the right of the&nbsp;</span>complainant to contend that it is not before the trial, by producing such evidence. Cheques being issued as security or otherwise are always a matter of trial.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">In the light of the judgments rendered by the Apex Court (supra), the contention of the learned senior counsel that cheques were issued only as security and they are not against any legally recoverable or enforceable debt, again does not hold water, as the Apex Court clearly holds that these are disputed questions of fact and have to be tried in a full blown trial. The question of interference under Section 482 of the Cr.P.C. would not arise at the threshold. Therefore, issue No.3 that has arisen for consideration is answered against the petitioners. Thus, tumbles the third sheet anchor.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">Issue No.4: (iv) Whether the Chairman or Directors of the Company can be hauled into these proceedings involved in a transaction of mammoth proportion?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">16. The contention of the learned senior counsel that the petitioners are Directors or Chairman of the Company and are not aware of the transactions and the signatories to&nbsp; the&nbsp; cheques&nbsp; are&nbsp; the&nbsp; only persons&nbsp; responsible&nbsp; also&nbsp;cannot be countenanced, as the transaction is of Rs.400/-crores. A mammoth transaction of this nature being executed without passing muster through the office bearers of the Company cannot be imagined at this juncture. The Directors or the Chairman cannot claim that they are not privy to the enormity of the transaction between the accused and the complainant as the complaint clearly narrates the role of persons involved in the transaction who are made accused in the case at hand. Therefore, it becomes a matter of trial for the petitioners to come out clean, if they are not involved in the transaction at all. It would have been an altogether different circumstance if the Directors of the Company had claimed that they have resigned from the Company and that their resignations were demonstrable by production of public documents before this Court. This is not the submission of the petitioners before this Court. By mere statement that the Directors were not involved in the transaction cannot at this juncture be accepted, when they are being put to trial and the contention being tested on the basis of examination or cross-examination in the trial.<br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">In the light of the judgment rendered by the Apex Court in the case of ASHUTOSH ASHOK PARASRAMPURIYA and as a result of disputed questions of fact being the crux of the issue, the issue No.4 that falls for my consideration is also answered against the petitioners. Thus, crashes the fourth sheet anchor.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">17. Therefore, none of the contention of the learned senior counsel appearing for the petitioners would merit any acceptance and the armory from the arsenal of the learned senior counsel by way of authorities are either inapplicable to the facts of the case or, are unacceptable.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">18. For the praefatus reasons, the Writ Petitions lack merit and consequently meet their dismissal.&nbsp;</span></p>', '85c27d647b197184c21e73065aae9c62.jpg', '0712bb25ed3c5ffa31e091bc84d46ced.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-08', 1, '', '', '2022-07-09 00:44:14', '2022-07-08 14:18:49');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1924, 'sqsjTZ2baQSvT0u7O2G3ztabc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Special Power of Attorney holder who is aware of the transaction can initiate proceedings under Section 138 of the Negotiable Instruments Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">M/S OMR Investments LLP and others Vs Pardhanani Chatrabhuj Bassarmal.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 8225 of 2022 decided on 4 July 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice M. Nagaprasanna.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">The petitioners are before this Court calling in question proceedings in C.C.No.9809 of 2022 pending before the XXI Additional Chief Metropolitan Magistrate at Bengaluru and consequently to quash the complaint that led to registration of Crime in the aforementioned criminal case instituted for offences punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘the Act’ for short).</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">2. Accused No.1/1st petitioner - OMR Investments LLP (for short ‘the Firm or Company’) is a limited liability partnership firm engaged inter alia in the business of construction and development of real estate. Accused No.3/Petitioner No.2 is a partner of petitioner No.1/Firm and accused No.7/petitioner No.3 is one of the authorized signatories of petitioner No.1/Firm. The petitioners in the companion petition i.e., W.P.No.8227 of 2022 are accused Nos. 2, 5 and 6. Therefore, accused 1, 2, 3, 5, 6 and 7 are before this Court barring accused No.4. The complainant/ respondent is common in both these petitions. Both these cases arise out of C.C.No.9809 of 2022 which arose out of the complaint in P.C.R.No.5711 of 2022 registered by the complainant. It is, therefore, both these cases are taken up together and considered in this order.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">3. Shorn of unnecessary details, facts in brief that are germane for consideration of the lis, are as follows: The 1st petitioner/Firm is a limited liability Company and the other petitioners are connected with the affairs of the Company in the capacity of either Directors or signatories of the partnership firm or signatories to the instruments involved in the transaction. It is the case of the complainant that a proposal was given that Embassy Company would execute a memorandum of understanding and a co-development agreement in respect of property development of an immovable property belonging to Embassy Company situated in the Special Economic Zone and a request was made to the complainant to reinvest the amounts that he would receive by sale of the aforesaid equity shares in the project for which the complainant would become the absolute owner. It appears, that a meeting of the Board of Directors of the Embassy Company was held on 21.10.2016 and the proposal given by the Embassy Company to the complainant was discussed and the result of the discussion was execution of a share purchase agreement between the Company and the complainant regarding sale of equity shares of the complainant in M/s Mac Charles (I) Limited for the very amount that is arrived at in the share purchase agreement. The amount was received by the complainant to his account.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">4. Once the amount was received from the sale of equity shares of M/s Mac Charles (I) Limited, the Embassy Company came up with the property development scheme that was evolved by the Company after the approval of the Board. A draft Memorandum of Understanding, draft construction agreement, a draft co-development agreement and a draft lease deed were all approved by the Board of Embassy Company and the said Company also represented to the complainant that the said immovable property situated in the special economic zone needed necessary approvals from the Ministry of Commerce, Government of India and further necessary approvals to co-opt the complainant as a co-developer of the said immovable property. In furtherance of this agreement, certain transactions took place between the parties and subsequently on 6-12-2016, two supplementary documents styled as loan agreements were entered into between accused No.1’s firm represented by accused Nos.2 and 3 and the complainant for a sum of Rs.490/-crores which was to be invested in the property development scheme. Accused No.2 is said to have executed a deed of guarantee in favour of the complainant guaranteeing the entire transaction and being bound by the said transaction.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">5. The complainant claims that based on all the above assurances and promises given by the Embassy Company, the complainant transferred the amount afore-quoted in three installments. Since the amount was legally transferred by the complainant to accused No.1’s firm and later by the firm to the Embassy Company as Inter-Corporate Debt, accused No.2 before the promoter Director of the Embassy Company and Managing Partner of the Firm represented to the complainant that reversal or refund of the amount that the complainant had paid had to take place only through the 1st accused/Firm and the 2nd accused suggested drafting a fresh supplementary document styled as loan agreement which would be executed by the Firm favouring the complainant for refund of Rs.390/- crores and would also refund Rs.10/- crores in due course to the complainant in installments.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">6. The loan agreement was executed between the Firm, the complainant and the authorized signatory accused No.7. In terms of the agreement, accused had agreed to repay the said amount with interest within 12 months and the 2nd accused also executed a fresh deed of guarantee in favour of the complainant along with post dated cheques for Rs.390/- crores favouring the complainant. The details of the post-dated cheques issued are a part of the complaint. They vary from 5-11-2021 and 31-05-2022. When time arose for presentation of these cheques and were presented, all of them were dishonoured for ‘want of sufficient funds’. The complainant took up legal proceedings by causing legal notices upon the accused, after the accused replied to the same, complainant registers a crime invoking Section 200 of the Cr.P.C. in P.C.R.No.5711 of 2022. This is the broad skeleton of transaction between the parties, as is pleaded in the complaint. Further intricate narration of details of transactions between the parties would not be necessary at this juncture, for consideration of the issues that are brought up by the accused before this Court.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">7. A private complaint was registered through a Special Power of Attorney holder of the complainant as the complainant resides in Dubai  and is  80 years old. The complainant was examined by the learned Magistrate on 24-03-2022 by receiving his affidavit as a sworn statement, takes note of 75 documents Exs.P1 to P75, marks them and posts the matter for orders, takes cognizance of the offence on 24-03-2022 and issues summons. It is this order of the learned Magistrate that drives the petitioners/accused to this court in both these petitions.</font><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">11. I have given my anxious consideration to the submissions  made  by  the  respective  learned  counsel appearing for the parties and in furtherance whereof, the following issues would arise for my consideration:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(i)<span style=\"white-space: pre;\">	</span>Whether the complaint filed by the special Power of Attorney holder of the complainant was maintainable in the teeth of the facts in the case at hand?</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(ii)<span style=\"white-space: pre;\">	</span>Whether the order taking cognizance is vitiated on account of it not being preceded with recording of sworn statement?</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(iii)<span style=\"white-space: pre;\">	</span>Whether the cheques issued as security as contended would come within the ambit of Section 138 of the Act?</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(iv)<span style=\"white-space: pre;\">	</span>Whether the Chairman or Directors of the Company can be hauled into these proceedings involved in a transaction of mammoth proportion?</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">Issue No.1: (i) Whether the complaint filed by the special Power of Attorney holder of the complainant was maintainable in the teeth of the facts in the case at hand?</font><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">12. To consider the issue whether the complaint was maintainable at the hands of a Power of Attorney holder qua the contentions of the learned senior counsel that it did not contain the narration that he was completely aware of the facts, it is necessary to notice the Power of Attorney and the preamble to the complaint. Document No.1 that is appended to the complaint is the Power of Attorney. A reading of the Power of Attorney in tandem  with  the  second  paragraph  of  the  complaint (supra) would clearly indicate that the Power of Attorney holder was aware of the transaction and was fully conscious of what he was deposing and to what he is required to represent. Since the entire Power of Attorney was appended to the complaint and the complaint did mention that the Power of Attorney itself was appended, it is deemed to be treated as part and parcel of the complaint. Therefore, the contention of the learned senior counsel that the complaint itself was not maintainable, holds no water. The learned senior counsel places reliance upon the judgment in the case of A.C.NARAYANAN (supra) to contend that the complaint is in utter violation of the dictum of the Apex Court and has to be obliterated is unacceptable for the observations made hereinabove that the complaint did contain all the necessary ingredients for its maintainability.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">In the light of subsequent Three Judge Bench decision, considering the case of A.C.NARAYANAN and observing as afore-quoted, the first sheet anchor of the learned senior counsel is rendered unacceptable, as the complaint does satisfy the requirements of A.C.NARAYANAN as considered in TRL KROSAKI REFRACTORIES LIMITED. I hold the first issue against the petitioners to the effect that the complaint did narrate what is noted to be narrated and accordingly the complaint was maintainable.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">Issue No.2: (ii) Whether the order taking cognizance is vitiated on account of it not being preceded with recording of sworn statement?</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">13.<span style=\"white-space: pre;\">	</span>The learned Magistrate accepts the sworn statement of the complainant through the affidavit and that through his counsel. This was considered to be examination of PW-1 and looks at Exs.P1 to P75, marks them and passes order on the same day, as afore-quoted, taking cognizance and issuing summons. The issue now is whether the sworn statement first being taken, then cognizance and issuing summons would amount to putting the cart before the horse and resultantly vitiating the entire proceedings on account of such procedural irregularity. The learned senior counsel has placed reliance upon judgment of this Court in the case of D.P.SHARMA v. C.R.GOWDA2 to contend that if the order taking cognizance is preceded by recording of sworn statement, it is an incurable procedural irregularity.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">Except jurisdictional issues, Section 460 of the Cr.P.C. renders infirmities curable, as the section deals with irregularities which do not vitiate proceedings and irregularities which vitiate proceedings. Clause (e) of Section 460 deals with taking of cognizance under clause (a) or clause (b) of Sub-section (1) of Section 190 under which cognizance is taken and summons is issued in the case at hand. The effect of Section 460 is considered by the Three Judge Bench of the Apex Court in the case of PRADEEP S. WODEYAR v. STATE OF KARNATAKA in which clause (e) of Section 460 is considered and held that such irregularities would not vitiate the proceedings.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><br></font>In the light of the very provision i.e., Section 460 of the Cr.P.C. and its interpretation by the Apex Court in the case of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">PRADEEP  </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">S. WODEYAR, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as also </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">judgments rendered by the Co-ordinate Bench of this Court, which are subsequent to the judgments relied on by the learned senior </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">counsel, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">issue </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">has </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">arisen </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">my consideration is answered against the petitioners, holding that putting the cart before the horse, in all circumstances cannot be a panacea to the accused to contend that the entire proceedings stand vitiated. At best, it is an irregularity which would not impede fair trial to the accused or to the complainant. Hyper-technicalities in the form of irregularities cannot override substantive justice. Thus, fails the second sheet anchor.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Issue No.3: (iii) </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Whether the cheques issued as security as contended would come within the ambit of Section 138 of the Act?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">14.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; white-space: pre;\">	</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The said issue is, whether cheques issued as security, in all circumstances, can claim immunity from proceedings under Section 138 of the Act. The contention of the learned senior counsel that post-dated cheques were issued as security and the submission of the learned counsel for the respondent that they were not, is a matter for trial which would involve serious disputed questions of fact. Insofar as the argument that they are issued as a security, at this juncture, would take away the right of the </span>complainant to contend that it is not before the trial, by producing such evidence. Cheques being issued as security or otherwise are always a matter of trial.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">In the light of the judgments rendered by the Apex Court (supra), the contention of the learned senior counsel that cheques were issued only as security and they are not against any legally recoverable or enforceable debt, again does not hold water, as the Apex Court clearly holds that these are disputed questions of fact and have to be tried in a full blown trial. The question of interference under Section 482 of the Cr.P.C. would not arise at the threshold. Therefore, issue No.3 that has arisen for consideration is answered against the petitioners. Thus, tumbles the third sheet anchor.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">Issue No.4: (iv) Whether the Chairman or Directors of the Company can be hauled into these proceedings involved in a transaction of mammoth proportion?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">16. The contention of the learned senior counsel that the petitioners are Directors or Chairman of the Company and are not aware of the transactions and the signatories to  the  cheques  are  the  only persons  responsible  also cannot be countenanced, as the transaction is of Rs.400/-crores. A mammoth transaction of this nature being executed without passing muster through the office bearers of the Company cannot be imagined at this juncture. The Directors or the Chairman cannot claim that they are not privy to the enormity of the transaction between the accused and the complainant as the complaint clearly narrates the role of persons involved in the transaction who are made accused in the case at hand. Therefore, it becomes a matter of trial for the petitioners to come out clean, if they are not involved in the transaction at all. It would have been an altogether different circumstance if the Directors of the Company had claimed that they have resigned from the Company and that their resignations were demonstrable by production of public documents before this Court. This is not the submission of the petitioners before this Court. By mere statement that the Directors were not involved in the transaction cannot at this juncture be accepted, when they are being put to trial and the contention being tested on the basis of examination or cross-examination in the trial.<br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">In the light of the judgment rendered by the Apex Court in the case of ASHUTOSH ASHOK PARASRAMPURIYA and as a result of disputed questions of fact being the crux of the issue, the issue No.4 that falls for my consideration is also answered against the petitioners. Thus, crashes the fourth sheet anchor.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">17. Therefore, none of the contention of the learned senior counsel appearing for the petitioners would merit any acceptance and the armory from the arsenal of the learned senior counsel by way of authorities are either inapplicable to the facts of the case or, are unacceptable.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">18. For the praefatus reasons, the Writ Petitions lack merit and consequently meet their dismissal. </span></p>', '1637556bd426ef13a17d1f14acaf8dcc.jpg', 'bf15fd3eb4ac6bb8969f23ee3757b43c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-09', 1, '', '', '2022-07-09 00:47:29', '2022-07-09 13:55:00'),
(1926, 'YnBn7AACTrhofPKf5apjx6S89', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constitutional Courts can monitor criminal investigation, especially in crimes involving corruption, in order to prevent corruption in the society. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"mso-margin-bottom-alt:auto;line-height:normal\"><b>Mahesh P S vs State of Karnataka&nbsp;<br>\r\nCriminal Petition 4909 of 2022<br>\r\nDaily Orders dated 7 July 2022.&nbsp;</b></p><p class=\"MsoNormal\" style=\"mso-margin-bottom-alt:auto;line-height:normal\"><b>Relevant portion:&nbsp;4. Having taken note of the conduct of ACB in not\r\nregistering the case against the Deputy Commissioner even though there was an\r\nample materials before ACB, this Court has observed that ACB has registered the\r\ncase only against the clerk and also the sub-ordinate&nbsp;officials&nbsp;of\r\nthe Deputy Commissioner’s&nbsp;office. The counsel appearing for ACB, instead\r\nof assisting the Court made the submission that this Court has to consider only\r\nthe bail petition and not to consider the other materials. Hence, this Court\r\nhas expressed that if the Investigating Agency failed to consider the public\r\ninterest which is sole consideration, the Constitutional Court will monitor the\r\ninvestigation only when circumstances compel to do so. 5. The Apex Court in the\r\njudgment reported in AIR 2014 SC 666 in the case of Manoharl Lal Sharma vs\r\nPrincipal Secretary and others in paragraph 68 held that if the Court notices\r\nthat if the investigation is not proceeding legally, Court can take note of the\r\npublic interest as the sole consideration and a Constitutional Court&nbsp;</b><b style=\"text-align: justify; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">monitors an\r\ninvestigation only when circumstances compel it to do so, such (illustratively)\r\na lack of enthusiasm by the Investigating Officer or agency (due to ‘pressures’\r\non it) in conducting a proper investigation, or a lack of enthusiasm by the\r\nconcerned Government in assisting the investigating authority to arrive at the\r\ntruth, or a lack of interest by the investigating authority or the concerned\r\nGovernment to take the investigation to its logical conclusion for whatever\r\nreason, or in extreme cases, to hinder the investigation. 6. The Apex Court in\r\nthe judgment reported in (2010) 1 SCC (CRI) 36 in the case of Kedar Narayan\r\nParida and others vs State of Orissa and another held that no interference is\r\ncalled for with the impugned order of the High Court. The High Courts in\r\nexercise of their inherent and plenary powers are entitled to intervene to set\r\nright the illegality and/or mala fide action on the part of the investigating\r\nauthorities when it notices such illegality and/or mala fide action on the part\r\nof the investigating authorities. While the courts should not intervene in\r\nmatters of investigation, which power, under the scheme of Cr.P.C has been\r\nvested in the police authorities, an exception has also been made that in\r\ncertain circumstances the court could intervene in order to do justice to the\r\nparties. The courts and in particular the High Courts, are the guardians of the\r\nlife and liberty of the citizens and if there is any favour of deliberate\r\nmisuse of the authority vested in the investigating authority, the High Court\r\nor the Supreme Court may certainly step in to correct such injustice or failure\r\nof justice.</b></p><p class=\"MsoNormal\" style=\"mso-margin-bottom-alt:auto;text-align:justify;\r\nline-height:normal\"><b>\r\n7. The Apex Court also in the judgment reported in AIR 2010 SC 1476 in the case\r\nof State of West Bengal and others vs Committee for Protection of Democratic\r\nRights, West Bangal and others. in Constitutional Bench even considered the\r\nscope and ambit of the powers of the High Court wherein it is held that whereas\r\nthe right guaranteed by Article 32 can be exercised only for the enforcement of\r\nfundamental rights conferred by Part III of the Constitution, the right\r\nconferred by Article 226 can be exercised not only for the enforcement of\r\nfundamental rights, but “for any other purpose” as well, i.e., for enforcement\r\nof any legal right conferred by a Statute and the same is discussed in\r\nparagraph 35 and also observed with regard to the investigation of congnizable\r\noffence, offence committed in territory of State, direction to CBI to\r\ninvestigate, can be given by writ court even in absence of consent of State,\r\ndirection not incompatible with federal structure or doctrine of separation of\r\npowers, such power to be exercised sparingly, cautiously and in extraordinary\r\nsituations.&nbsp;…The ADGP who is representing the institution and who is in\r\nhelm of affairs of ACB not exercised his powers legally and not shown any\r\nenthusiasm to protect the institution as observed by the Apex Court in the\r\njudgments referred supra and without any other alternative, this Court in the\r\ninterest of general public since general public are facing difficulties in the\r\nGovernment departments to get the work done from the below rank to the top rank\r\nwithout bribe and hence, this Court in the interest of public which is the sole\r\nconsideration and the Court can monitor the investigation only when the\r\ncircumstances compel to do so and it is compelled to do by this Court and the\r\nApex Court in the case of Manohar Lal Sharma held that monitoring by the Court\r\ndoes not mean supervision by the Court and categorically held that when the\r\npublic interest is the sole consideration and a constitutional court monitors an\r\ninvestigation only when circumstances compel it to do so, such (illustratively)\r\na lack of enthusiasm by the Investigating Officer or agency (due to ‘pressures’\r\non it) in conducting a proper investigation, or a lack of enthusiasm by the\r\nconcerned Government in assisting the investigating authority to arrive at the\r\ntruth, or a lack of interest by the investigating authority or the concerned\r\nGovernment to take the investigation to its logical conclusion for whatever\r\nreason, or in extreme cases, to hinder the investigation.</b></p><p class=\"MsoNormal\" style=\"mso-margin-bottom-alt:auto;text-align:justify;\r\nline-height:normal\"><b>9. When such being\r\nthe case, in order to prevent the corruption in the society having considered\r\nthe very object of the Special Enactment which was brought into force i.e., the\r\nSpecial Enactment of Prevention Of Corruption Act, 1988 and periodically\r\namendment was also made with regard to taking, acceptance as well as acquiring\r\ndisproportionate properties but the ADGP fails to consider the societal and\r\npublic interest and hence, this Court directed to summon the documents of\r\nB-report which is fled against accused persons who have accepted the bribe\r\namount and trapped at the time of accepting the bribe amount and in disproportionate\r\ncases, search warrants which have not been executed.<o:p></o:p></b></p><p>\r\n\r\n\r\n\r\n</p><p class=\"MsoNormal\"><o:p><b>&nbsp;</b></o:p></p>', 'ed49f3e82d4cc30ba5c6de51c7d55a00.jpg', '43ef2a80b042fe8102eb4cbdce4a5cd8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-09', 1, '', '', '2022-07-09 14:04:07', '2022-07-09 14:04:07'),
(1925, 'VZgQg02i3LeZoLsWcqdyWoM5K', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'The power of the Government to make laws determining the service conditions of its employees or amend such laws cannot confer them the power to apply such laws differently to similarly situated persons. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State of Kerala and others Vs John Panicker and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WA 288 of 2022 decided on 4 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The appeal by the State and its officials are directed against the\r\njudgment in W.P. (C ) No. 15415 of 2020 which allowed the Writ\r\nPetition filed by the first respondent herein by directing the\r\nUniversity to give approval for the promotion of the petitioner as\r\nSenior Lecturer with effect from 19-8-2000 and to grant all other\r\nconsequential promotion and benefits to which the petitioner is\r\neligible from time to time.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The brief facts necessary for the disposal of the appeal are\r\nas follows:\r\nThe first respondent/writ petitioner was initially selected as\r\nJunior Lecturer as per Ext. P3 order dated 17-8-1996 pursuant to\r\nwhich he joined on 19-8-1996. Petitioner contends that though he\r\nwas appointed as Junior Lecturer, the notification for selection was for\r\nthe post of Lecturer in Hindi. By Government Order dated 12-2-1996, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">a new cadre of teachers in the Collegiate Education Subordinate\r\nService for teaching pre-degree courses in the State was created\r\nindicating the qualifications, method of appointment etc. the\r\ndesignation was “Junior Lecturer (Pre-Degree)”. Petitioner also\r\nclaims to be fully qualified for the appointment of the post of\r\nLecturer even from that time onwards. The petitioner, consequent to\r\nthe de-linking of the pre-degree courses from the college as part of\r\nimplementation of the Pre-degree (Abolition) Act 1997, was deployed\r\nto the St. Gregorious Higher Secondary School, Kottarakkara, under\r\nthe same management as per Order dated 4-5-1998. The order\r\ndeploying the petitioner, the relieving order and the order of the\r\nDirector of Higher Secondary Education duly approving the same\r\nwere marked as Exts. P4 to P7 in the Writ Petition. Years thereafter,\r\non the arising of a vacancy, the petitioner was relieved from St.\r\nGregorious Higher Secondary School, Kottarakkara and was redeployed as Assistant Professor in Hindi in the first respondent\r\ncollege from the forenoon of 1-7-2011 as per Ext. P11 order which the\r\nUniversity has duly approved as per Ext. P12.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. Petitioner submits that as per the UGC Scheme which had\r\nby then been implemented in the State, those teachers who\r\ncompleted six years of service are entitled to be promoted as “Senior\r\nScale Lecturers” and according to him, since he is qualified, he is </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">entitled to get promotion as Senior Scale Lecturer with effect from 19-\r\n8-2000, on completion of four years of service and also entitled to\r\nget a further promotion as Senior Selection Grade Lecturer with\r\neffect from 5-09-2005. The petitioner was promoted as Lecturer,\r\nSenior Scale with effect from 18-8-2000 vide order dated 7-12-2015.\r\nThe petitioner submits that as per Clause 6.25 of the UGC Scheme\r\ndated 21-12-1999, Ext. P14, a Lecturer is eligible to be placed in\r\nSenior Scale if he has completed six years of service after a regular\r\nappointment and as per Clause 10 of the said Scheme, even parttime teachers will be entitled to the Career Advanced Scheme (for\r\nshort “CAS”) from Lecturer to Senior Scale and Selection Grade\r\nLecturer. He further relies on Ext. P15 a Government Order dated 1-\r\n6-2010 to contend that those teachers who were appointed in the\r\npre-degree vacancies would also be eligible for placement under\r\nCAS. The petitioner also cites several instances of teachers similarly\r\nsituated being granted the said benefit. The petitioner contends\r\nthat he is discriminated which forced him to file W.P.C. 3367/2019\r\nwherein the Government was directed to consider the matter\r\nadverting to the relevant Government Orders. No action was taken\r\nwithin the time granted by this Court which led to the filing of\r\nContempt of Court Proceedings. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. In the meantime, it is submitted that the earlier\r\nGovernment orders granting benefits to the similarly placed was\r\ncancelled as per Ext. P24. The petitioner\'s claim was rejected by Ext.\r\nP25 order dated 20-3-2020 holding that the conditions in the V and\r\nthe VI UGC Scheme do not provide any provision to reckon the\r\nservice rendered as Junior Lecturers for placement in the CAS.\r\nWrit Petition was filed challenging Ext. P25 order and also for a\r\ndeclaration that the petitioner was entitled to placement/promotion as\r\nSenior/Selection Grade Lecturer/Associate Professor under the CAS as\r\nper Ext. P14 UGC Scheme.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">5. The University filed a counter supporting the reasons\r\ngiven in Ext. P25 that the appointment of the petitioner as Junior\r\nLecturer (Pe-degree) is exclusively for handling of classes of\r\npre-degree, having a different selection process/qualifications and\r\nscale of pay and also that the approval has been granted by the\r\nDeputy DCE, he re-entered into the Collegiate Service only on\r\n1-7-2011. The University further states that the petitioner was in the\r\nroll of school service till 1-7-2011. His claim for promotion on 19-8-\r\n2000 as Senior School Lecturer and as Selection Grade Lecturer with\r\neffect from 5-09-2005 cannot be considered as he was not even in\r\nthe Collegiate Service. The University has also contended that the </span><span style=\"font-size: 12pt;\">petitioner cannot claim parity to those similarly placed as their\r\nillegal promotions were all directed to be cancelled. Since there is\r\nno provision in the V and VI UGC Scheme to reckon the service\r\nrendered as Junior Lecturers, it was urged that the writ petition be\r\ndismissed.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">6. The learned Single Judge who heard the matter found that\r\nthe petitioner was entitled to be promoted under the CAS on\r\ncompletion of four years of service in terms of UGC qualification and\r\nby dispensing the two years service since the petitioner had Ph.D,\r\nfour years service from 1996 added to the four years in 2010, the\r\npetitioner was entitled to get promotion from 19-8-2000. The learned\r\nSingle Judge also found that the Government was discriminating the\r\npetitioner when it promoted several persons similarly placed, after\r\n4-6 years of service as it is evident from Exts. P27 to P29. The\r\nlearned Single Judge also found that the University cannot play hide\r\nand seek or act in a discriminatory manner. The learned single\r\nJudge also was of the view that as per Ext. P14 Government Order\r\ndated 1-7-2009 which dealt with the re-appointment and redeployment of Lecturers who were posted in Higher Secondary\r\nSchools due to the de-linking of pre-degree course since there was a\r\nstipulation to give appointment in the respective space in the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">present and future vacancies by giving preference, the Lecturers who\r\nwere re-deployed ought to be given promotion, more so, when the\r\npetitioner was qualified. In that view of the matter, the Writ Petition\r\nwas allowed as aforesaid.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. It is the contention of the learned Senior Government\r\nPleader Sri. Bijoy Chandran that as per Clause 7 of Ext. P14\r\nGovernment Order, several conditions are to be fulfilled so as to\r\nreckon a persons past service for placement as Lecturers and that\r\nthe post of Junior Lecturer (Pre-degree) would not satisfy the\r\nconditions stipulated there as the post of Junior lecturers is not an\r\nequivalent grade/scale of pay as the post of Lecturer and evidently the\r\nqualifications for the post of Junior Lecturer was lower than the\r\nqualifications prescribed by the UGC for the post of Lecturer. It is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">also his contention that the conditions in the V and VI UGC Scheme\r\ndid not provide any provision to reckon the service rendered as junior\r\nLecturer for placement under CAS. It is also argued that the\r\nGovernment had already withdrew the promotions effected by the\r\nGovernment letter dated 20-09-2017 with retrospective effect and\r\nthe Director of Collegiate Education and Universities were directed\r\nto review the prior service for placement/promotion given to\r\nteachers, if any, on the basis of Government Letter dated 20-09-2017\r\nand it also cancelled the same with retrospective effect </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. In as much as the clauses in Ext. P14 Government Order,\r\nextracted above admits of no doubt and the petitioner does not meet\r\nthe criteria prescribed therein, no benefit can be claimed by the\r\npetitioner for a promotion under the CAS. The Senior counsel for the\r\nwrit petitioner relies on the judgment in Manager, St.Thomas\r\nCollege, Palai and Others v. State of Kerala and Others\r\n(MANU/KE/0517/2022) to contend that his case is squarely covered\r\nby the said Judgment. It may straightaway be noted that this Court\r\nby the judgment only upheld the right of a teacher therein to get redeployment in terms of the Government Order which was wrongly\r\nrefused by the management and the issues arising in this Writ Appeal\r\nhas no bearing, to the said decision. The learned Senior Counsel\r\nalso argues that several teachers were granted the benefits which he\r\nis seeking now and relying on the judgments in G. Sadasivan Nair <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ts Registrar and Others [MANU/SC/1173/2021], The State of\r\nKerala, represented by its Principal Secretary, Department of\r\nHigher Education v. N. Aravindakshan [W.A. No. 2579/2009] and\r\nState of Mizoram and Ors. v. Mizoram Engineering Service\r\nAssociation and Another [(2004) 6 SCC 218], it is argued that\r\nthe writ petitioner cannot be discriminated as the similarly situated\r\nteachers were given the benefit and by Ext. P24 only one such\r\ninstance was cancelled. It may be noted that since we have held\r\nthat the petitioner is not entitled under Ext. P14 Government Order,\r\nwe cannot countenance the argument that the promotions given in\r\nviolation of Ext. P14 should be followed in the case of petitioner as\r\nwell. We cannot perpetuate such illegalities and if done, it will be\r\nnothing but a case of negative equality which is not contemplated\r\nunder law. We also note the fact that the Government by passing Ext.\r\nP24 recognizes that the promotions given in violation of Ext. P14\r\norder were wrong and they have taken steps to review such\r\npromotions. Taking a cue from the Full Bench in the decision\r\nreported in State of Kerala and Others v. M.M. Thomas and\r\nOthers [2015 (1) KHC 502] that there is a purpose behind\r\ngranting increments or additional benefits and therefore, the Scheme\r\nwas to attain academic excellence, we are of the view that the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">stipulation in Ext. P14 government Order has to be construed strictly\r\nwith the objective in mind namely to improve the quality of education\r\nand to provide incentives towards the said purpose. In view of our\r\nfinding on the basis of Clause 7.1 of Ext. P14 order about the disentitlement of the petitioner, the argument based on Clause 3.3 and\r\n3.4 of the said Government Order has no relevance as it has no\r\napplication at all to the facts of the case,</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. Even as we accept the contentions on the part of the\r\nGovernment and allow its appeal, we find it disturbing that the\r\nGovernment had treated similarly situated persons differently. The\r\npower of the Government to make laws determining the service <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">conditions of its employees or amend such laws cannot confer them\r\nthe power to apply such laws differently to similarly situated persons.\r\nAllowing the Government to do so would be violative of all cannons\r\nof equality enshrined in the Constitution of India. The Government is\r\nas much bound by the rule of law as any other with an additional\r\nresponsibility of being fair and just in all their actions both in\r\ngovernance as well as in litigation. Accordingly, the Director of\r\nCollegiate Education, Thiruvananthapuram and all the Universities in\r\nKerala, are directed to implement the directions in Ext. P24\r\nGovernment Order (Rt) No. 452/2020/HEDN dated 17-3-2020 and to\r\ntake it to its logical conclusion in respect of all cases where\r\nplacement/promotion has been granted contrary to the terms of Ext.\r\nP14 Government Order, without delay.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>This Writ Appeal is allowed as above.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fc32d4f71666f82a066ea666cc6a51ef.png', '4edfc8011509cdbdc0c71e045f24d140.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-11', 1, '', '', '2022-07-09 00:57:18', '2022-07-11 06:26:46');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1928, '165iuL7p9sXmsVTIEUYQaH9l0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Compensation for actual damages in a motor vehicle accident includes value of spare parts to be repaired. Kerala High Court  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Thomas Abraham Vs R. Murugasamy and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>MACA 1805 of 2013 decided on 7 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A. Badharudeen</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This appeal arises out of common award dated 24.04.2013 in\r\nO.P(MV).No.941/2010 on the file of the Motor Accidents Claims\r\nTribunal, Ernakulam. The petitioner is the appellant and the\r\nrespondents before the Tribunal are the respondents herein.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>3. The question emerges for consideration is; whether\r\nreduction permissible towards value of spare parts incurred by the\r\nclaimant on account of repair of a vehicle got damaged in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">consequence of a motor accident?</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. The appellant herein lodged claim under Section 166 of\r\nthe Motor Vehicles Act on the allegation that Omni Van bearing\r\nReg.No.KL-12B-1118 owned by the appellant got damaged in\r\nconsequence of an accident occurred on 21.11.2009 at about 5 p.m\r\nat Koratti junction. According to the appellant, the accident was\r\nthe outcome of contribution of negligence on the part of the 2nd\r\nrespondent. Accordingly, he claimed damages to the tune of\r\nRs.1,62,000/- from respondents 1 to 3 jointly and severally.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. The 3rd respondent insurer of the Tempo van bearing\r\nReg.No.TN.38Z-7225 filed written statement and resisted the\r\ncontention. Allegation of negligence on the part of the 2nd\r\nrespondent was denied and the same was alleged against the driver\r\nof the Omni van KL-12B-1118. Policy to the Tempo van was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">admitted while disputing the quantum of compensation claimed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. Finally the Tribunal granted Rs.45,380/- along with\r\ninterest @ 8% per annum from the date of petition till realisation of\r\nthe amount.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The learned counsel for the appellant zealously argued\r\nthat the Tribunal went wrong in reducing 50% of the amount\r\nassessed by the approved surveyor towards value of spare parts.\r\nShe submitted further that though the value of the spare parts\r\nassessed by the approved surveyor is to the tune of Rs.38,649/-, the\r\nTribunal reduced 50% of the same and granted Rs.19,325/-.\r\nAccording to the learned counsel, such reduction is not permissible\r\nunder law and, therefore, the same requires revisit. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Refuting this contention, the learned counsel for the\r\ninsurer would submit that the Tribunal relied on a decision of this\r\nCourt reported in [2009(4) KLT 679 : 2009 KHC 5125], Abraham\r\nv. Johny, wherein it was held that 50% of the reduction is\r\npermissible towards value of spare parts. Therefore, the said\r\nfinding does not require any interference. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. In view of the ratio in Joseph M.M v. Venkata Rao M.\r\n& Ors.\'s case (supra), as held by the Full Bench of this Court,\r\nwithout much ado, it has to be held that the compensation for\r\ndamages, especially pecuniary damages, suffered by a claimant is\r\nnormally the `actual damages\' inclusive of `actual value of spare\r\nparts and labour charges\'. Therefore, the claimant in such a case is\r\nentitled to get compensation for actual damages inclusive of value <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of spare parts as well and no deduction is liable to be made from\r\nthe value of spare parts. In view of the said fact, the finding\r\nentered by the Tribunal reducing 50% of the amount towards value\r\nof spare parts is not legally sustainable and, therefore, the said\r\nfinding is set aside.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>In the result, the appeal stands allowed. It is ordered that the\r\nappellant is entitled to get Rs.19,324/- (Rupees Nineteen thousand\r\nthree hundred twenty four only) as enhanced compensation with\r\n8% interest granted by the Tribunal. The insurance company is\r\ndirected to deposit the same in the name of the appellant within two\r\nmonths from today and on deposit, the appellant can release the\r\nsame.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9b38811b22aa27c6cc3e8d546406bdfc.jpg', 'ad4276fb341d641b7737f0062e0e80f9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-13', 1, '', '', '2022-07-09 18:25:21', '2022-07-13 06:24:43'),
(1929, 'Spe3ctx96dRtsiCiYYY7IVDf4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Person who claims compensation for illegal dispossession of land must prove his prior possession. Mere sale deed in his favour is not enough to claim compensation. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Citicap Housing Developments Ltd Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. (C) 8312 of 2022 decided on 6 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Gaurang Kanth and Justice Siddharth Mridul.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">1. The Petitioner has filed the present Petition, inter alia, seeking a direction\r\nagainst the Respondents to hand over / restore back the vacant and peaceful\r\npossession of the land bearing Khasra No. 965 measuring (0-13) in Village\r\nBahapur, Tehsil Kalkaji, New Delhi (“land in question”). In the alternative, the\r\nPetitioner is seeking a direction against the Respondents to acquire the land in\r\nquestion under the Right to Fair Compensation and Transparency in Land\r\nAcquisition and Resettlement Act, 2013 and pay compensation to the Petitioner </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">or direct the Respondents to allot an alternative plot / residential house in the\r\nsame locality of equal size having the same price as that of the land in question.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. It is the case of the Petitioner that Khasra No. 965 situated in the revenue\r\nestate of Village Bahapur, Tehsil Mehrauli is a piece of land measuring 1 Bigha\r\n7 Biswa. Out of the said Khasra, the Government acquired a land measuring 14\r\nBiswa vide declaration under Section 3 of the Resettlement of Displaced\r\nPersons Land Acquisition Act, 1948 vide notification No.F.1(71)/48 LSG (1)\r\ndated 26.03.1949. The remaining land of 13 Biswa out of Khasra No. 965, i.e.,\r\nthe land in question, was not acquired by the Government and the same was in\r\npossession of its respective owners.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. An agreement to sell dated 11.08.1986 was entered between (i) Sh.\r\nChandgi Ram s/o Sh.Khes Chand; (ii) Sh. Jit Ram s/o Sh. Ramji Lal; (iii) Sh.\r\nSurender Singh s/o Sh. Zile Singh; (iv) Sh. Mahinder Singh s/o Sh. Zile Singh;\r\n(v) Smt. Kamlesh d/o Sh. Zile Singh; (vi) Smt. Indra d/o Sh. Medh Singh; (vii)\r\nSmt. Gulbir Verma wife of Sh. Manga Ram; (viii) Sh. Rakesh Kumar s/o Sh.\r\nManga Ram; (ix) Smt. Prem d/o Sh. ManSingh; (x) Sh. Ajit Singh s/o Sh. Medh\r\nSingh; (xi) Smt. Minakshi d/o Sh. Manga Ram; (xii) Sh. Gagan s/o Sh. Manga\r\nRam; and (xiii) Sh. Jai Bhagwan s/o Sh. Man Singh (“farmers”) as sellers and\r\nM/s Aavishkar Estates Pvt. Ltd as buyer for the sale of the said land in question.\r\nM/s Aavishkar Estates Pvt. Ltd filed a suit for specific performance being Civil\r\nSuit No.36/93 titled as M/s Aavishkar Estates Pvt. Ltd Vs Chandgi Ram &Ors\r\nbefore this Court. During the pendency of the said Civil Suit, M/s Aavishkar\r\nEstates Pvt. Ltd, with the consent of the farmers and with the permission of this\r\nCourt, assigned all its rights, title and interest in the land in question in favour\r\nof the Petitioner. The said Civil Suit was compromised in terms of IA No.\r\n4916/13. In pursuance of the order dated 15.07.1993 passed by this Court in\r\nCivil Suit No. 36/93, the Registrar of this Court executed the sale deed dated\r\n08.11.1993 in favour of the Petitioner. In terms of the said registered sale deed <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dated 08.11.1993, the Petitioner is claiming itself to be the absolute owner of\r\nthe land in question. Further, the land in question is mutated in the name of the\r\nPetitioner in the revenue records.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. It is the case of the Petitioner that the land in question was in illegal\r\npossession of the Respondent No.3 (DDA) and hence they approached the\r\nRespondent No. 3 for handing over the possession of the land in question to the\r\nPetitioner. As Respondent No.3 failed to take any action on the said request,\r\nPetitioner approached this Court in W.P(C) 5204/1997. This Court, vide order\r\ndated 01.12.1997, was pleased to direct the parties to maintain status quo with\r\nregard to the land in question.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. During the pendency of the aforesaid Writ Petition, the Petitioner applied\r\nfor demarcation of the land in question with the SDM (Kalkaji). The\r\ndemarcation was carried out on 18.03.2001 in presence of SDM Kalkaji,\r\nTehsildar (DDA), Tehsildar (Slum and JJ Dept), Patwari (MCD), Kanoongo\r\n(MCD), Area Kanoongo, Area Patwari etc. The said demarcation report <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">concluded that the land in question is the part of a developed colony, however,\r\nthe exact location of the land in question could not be identified during the\r\ndemarcation proceedings.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. That the Petitioner thereafter filed various representations with the\r\nRespondents for acquiring the land in question and to award market value of the\r\nsaid land as compensation to the Petitioner or in the alternative, to allot another\r\nplot to the Petitioner having same market value as that of the land in question.\r\nHowever, no response was received from the Respondents. The Petitioner is\r\ntherefore constrained to file the present Writ Petition.<span style=\"font-size: 12pt;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. Mr. Pawanjit Singh Bindra, Ld. Senior Counsel for the Petitioner\r\nsubmitted that the Respondents have deprived the Petitioner of its valuable\r\nrights without following the due process of law. No one can be deprived of\r\nhis/her property without payment of adequate and fair compensation. It is the\r\ncontention of the Ld. Senior Counsel for the Petitioner that it is an admitted\r\nposition that the Petitioner is the registered owner of the land in question and no\r\nacquisition has ever taken place with respect to the said land.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. It has been argued on behalf of the Petitioner that there was no bar on the\r\nerstwhile owners to sell the land in question as the same was never acquired by\r\nthe Government. He argues that the land in question has been sold to the\r\nPetitioner, who is the sole and absolute owner of the said land. He further\r\nargues that even if it is assumed that the Petitioner was never put in possession\r\nof the land in question, the Petitioner, being the owner of the land in question,\r\nhas a right to seek compensation in respect of the said land.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. Mr. Sudhir Nandrajog, Learned Senior Counsel appearing on behalf of\r\nRespondent No. 3/ DDA submitted that present Writ Petition is not\r\nmaintainable as disputed question of facts are involved in the present case and\r\nthe same can only be effectively adjudicated before a civil Court having\r\nappropriate jurisdiction. In order to support his contention, the Learned Senior\r\nCounsel has placed reliance on the Judgment dated 03.12.2018 passed in the\r\ncase of Roshina T. Versus Abdul Azeez K.T., (2019) 2 SCC 329. Learned\r\nSenior Counsel further submitted that the sale deed dated 08.11.1993 is a\r\ncollusive attempt to grab a government property. He further submitted that the\r\nland was purchased in the year 1993 and the Petitioner has not made even a\r\nsingle averment in the entire petition as to when the petitioner took possession <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the land. Learned Senior Counsel further sought dismissal of the petition on\r\nthe ground of delay and laches as the land in question was purchased in the year\r\n1993 and the present petition for grant of possession/compensation has been\r\nfiled in the year 2022.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. Considering the facts of the present case in the light of the law laid down\r\nby the Hon’ble Supreme Court in Syed Maqbool Ali (Supra), this Court is of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">considered view that the present matter involves disputed questions of fact\r\nwhich cannot be adjudicated in a writ petition. The Petitioner claims to be the\r\npurchaser of the land in question. However, it appears that the Respondents\r\nwere in possession of the land in question even before the execution of the sale\r\ndeed in respect of the said land in favour of the Petitioner. There appears to be\r\nnothing on record to show that the vacant possession of the land in question was\r\never handed over to the Petitioner. The identity of the land in question is still\r\nunder dispute and the issue as to in whose possession is the land in question is\r\nyet to be established. How, when and under what circumstances, the\r\nRespondents came into possession of the land in question is also to be\r\nascertained. All these facts, according to this Court, have to be established by\r\nleading evidence in accordance with law. The Petitioner has to establish its right\r\nunder the law to claim the substantial relief as claimed in the present Writ\r\nPetition. Merely by placing on record the Sale Deed will not absolve the\r\nPetitioner from its burden to establish its right to claim compensation in respect\r\nof the land in question when the factum of possession in favour of the\r\nPetitioners not established from the documents available on record. In view of\r\nseveral factual issues which still remain open for adjudication in the light of\r\nevidence, therefore, the Writ Petition is not the appropriate remedy for the\r\nPetitioner.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">23. The Ld. Senior Counsel for the Petitioner relied upon Vidya Devi (supra)\r\nCivil Appeal Nos. 60-61 of 2020 to substantiate that the state cannot dispossess\r\na citizen from his/her property except in accordance with the procedure\r\nestablished under the law. In the said matter, the appellant was an illiterate\r\nwidow staying in the rural area. She was the original owner of the subject\r\nproperty and the Respondent State admitted the fact that they took the land of\r\nthe appellant for construction of road without acquiring the land or paying\r\ncompensation. In addition, as per the directions of the Court, the Respondent</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">State acquired the land of the similarly situated people and paid compensation\r\nto them. The appellant, being an illiterate widow staying in the rural area, could\r\nnot take up timely measures to approach the Court. Thus, considering the\r\noverall facts of the case, with an intention to do substantial justice to the parties,\r\nthe Hon’ble Supreme Court, invoked its extra ordinary jurisdiction under\r\nArticle 136 and 142 of the Constitution and granted the relief to the appellant\r\ntherein. In the present case, the Petitioner is a subsequent purchaser who\r\npurchased the land in question from the earlier original/ recorded owners,\r\nhowever, there is nothing on record to show that the possession of the said land\r\nin question was handed over to the Petitioner. Moreover, the Petitioner is a\r\nCompany doing commercial transactions and cannot be equated with an\r\nilliterate widow residing in the rural area as was the case in Vidya Devi (supra).\r\nAdditionally, the identity of the land in question and the fact as to who is in\r\npossession of the said land in question is also under dispute. The facts of the\r\npresent case are considerately different from the facts in the case of Vidya Devi\r\n(supra). Therefore, the Petitioner cannot be extended the relief as granted to the\r\nappellant in the case of Vidya Devi (supra).\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">24. The Ld. Senior Counsel for the Petitioner also relied upon Sukh Dutt\r\nRatra (supra) to submit that the State cannot merely, on the ground of delay and\r\nlaches, evade its legal responsibility towards those from whom private property\r\nhas been expropriated. In Sukh Dutt Ratra (supra), the State admitted the fact\r\nthat they utilised the appellant’s land for the construction of road without paying\r\ncompensation. Unlike in the present case, the appellants in the case of Sukh\r\nDutt Ratra (supra) were owners in possession of the subject land in question.\r\nFurther, there was no dispute with regard to the identity of the land under\r\ndispute. The Hon’ble Supreme Court, in view of the facts and circumstances of\r\nthe said case, invoked its extra ordinary jurisdiction under Article 136 and 142\r\nof the Constitution of India and granted relief to the appellants therein. After </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">examining both the cases relied upon by the Counsel for the Petitioner, this\r\nCourt is of the considered opinion that the facts of both the cases are different\r\nand distinguishable from the facts of the present case and therefore, the ratio\r\nlaid down by the Hon’ble Supreme Court in the aforesaid two judgements are\r\nnot applicable to the facts of the present case.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>25. In view of the facts and the reasoning as discussed herein above, this\r\nCourt is not inclined to exercise its extra ordinary jurisdiction under Article 226\r\nof the Constitution of India and the present Writ Petition is accordingly\r\ndismissed. The Petitioner is however at liberty to pursue other remedies as\r\navailable under the law for establishing its rights to claim substantial reliefs as\r\nclaimed under this Petition. It is clarified that this Court has examined the\r\nmatter on the limited issue of its maintainability and no opinion has been\r\nexpressed on the merits of the Petition. The parties are left to bear their own\r\ncost.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a18fefe28d1b058325ca6eb5fb54262e.jpg', '34d2a426d2156d686f44be04af26f253.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-11', 1, '', '', '2022-07-09 18:34:40', '2022-07-11 12:21:06');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1931, 'hyzfSzOLixeBnZncL34k08D1e', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Writ Petition challenging provisional seizure order under Section 37A of the Foreign Exchange Maintenance Act cannot be entertained since it is subject to confirmation of the Competent Authority. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Xiaomi Technology India Private Limited Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 9182 of 2022 decided on 5 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.G. Pandit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">Petitioner, a company incorporated under the provisions of the Companies Act, 2013 is before this Court under Article 226 of the Constitution of India praying for a writ of certiorari to quash the order dated 29.04.2022 passed by the second respondent bearing No.F.No. T-3/BGZO/01/2022 under Section 37A[1] of Foreign Exchange Management Act, 1999 [for short “FEMA”], seizing the movable properties i.e., money in the bank account of the petitioner maintained with the petitioner’s bankers as mentioned in the schedule to the petition and for a direction to the respondents to conduct all further investigation and interrogations, if any, with respect to the petitioner through its employees or otherwise under video/audio recording and also permit the legal counsel of </font></span><font face=\"Calibri, sans-serif\">the petitioner be present during such investigations or interrogations, in order to prevent any form or harassment to the representatives of the petitioner. </font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. Petitioner claims that it operates as a re-seller and distributor of mobile phones and related products in India. Petitioner purchases locally manufactured smart phones for resale from third party Indian manufacturers and apart from the above, petitioner imports spare parts, accessories, mobile phones, televisions and certain other internet items and lifestyle products from its group entities. Petitioner claims that it regularly files its income tax returns and it has been assessed up to the assessment year 2017-18. Petitioner states that Qualcomm Inc., and Qualcomm technologies Inc., are the world’s leading wireless technology innovators including code division multiple access [CDMA] technology and manufactures semiconductors and provides software for wireless communications, especially in mobile devices. Petitioner claims that it is beneficiary of Qualcomm’s proprietary and licensed intellectual property, particularly standard essential patents (SEPs) that are used in the mobile phones sold by it and therefore pays royalty for the use of SEPs to Qualcomm. It also states that SEPs are patents which are essential for functioning of the mobile phone in a telecommunication network by implementing the technical specifications or standards and that the technology cannot be used or implemented without implant of that patent.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. Respondent No.2, Directorate of Enforcement on the basis of information from the credible sources that petitioner had made certain foreign remittances in the name of royalty to foreign based entities in violation of the provisions of FEMA, initiated investigation. Summons under the provisions of FEMA were issued to the Ex- country head and Managing Director of the petitioner and their statements were recorded. Based on the collected information, the Authorized Officer passed seizure order under Section 37A[1] of FEMA, which is impugned in this writ petition. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. Statement of objections filed by the respondent Nos.1 and 2 state that petitioner is engaged in the trading of mobile phones, electronic gadgets and other accessories under the brand name of Xiaomi. Petitioner purchases the completely manufactured, box packed ready to sell/use mobile from four manufacturers based in India and directly sells it to distributors, without adding any technology or any other value to the purchased phones. Petitioner has not received any kind of service, software/IPR/technology directly or indirectly. When there is no use of any intellectual property by the petitioner, there arises no occasion for the petitioner to pay royalty.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. Learned Additional Solicitor General Sri.M.B.Naragund for respondents on the preliminary issue of maintainability of writ petition submits that writ petition at this stage challenging the order passed under Section 37A[1] of the FEMA would not be maintainable since the petitioner is provided with alternate remedy under Section 37A of FEMA itself and further he submits that there is no order from the Competent Authority passed under Section 37A[3] of the FEMA and as such it is a premature writ petition. Learned Additional Solicitor General would submit that the writ petition at this stage would not be maintainable for one more reason that the writ petition involves disputed questions of facts.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 8. Learned Additional Solicitor General inviting attention of this Court to Section 37A of FEMA submits that under sub-Section[1], the Authorized Officer on receipt of any information or otherwise has reason to believe that any foreign exchange, foreign security, or any immovable property, situated outside India, is suspected to have been held in contravention of Section 4, he may after recording the reasons in writing, by an order, seize value equivalent, situated within India, of such foreign exchange, foreign security or immovable property. The Authorized Officer after passing the order of seizure along with relevant materials shall place before the Competent Authority within a period of 30 days from the date of such seizure. Under sub-Section [3], the Competent Authority shall dispose of the petition within a period of 180 days from the date of seizure by either confirming or by setting aside such order after giving opportunity of being heard to the representatives of the Directorate of Enforcement and the aggrieved person.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. Learned Additional Solicitor General would submit that since the petitioner has not used any technology or IPR of the Qualcomm or Beijing Xiaomi Mobile Software Company Limited, petitioner could not have paid any royalty. According to the learned Additional Solicitor General, royalty is paid only when a manufacturer uses technology or IPR patent holder.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. Learned Additional Solicitor General would contend that since the petitioner has not used any technology or IPR, could not have paid any royalty. Hence, amount transferred from the banker of the petitioner to Qualcomm or Beijing Xiaomi Mobile Software Company Limited would attract Section 4 of FEMA. Petitioner could not have transferred the amount in the guise of royalty when he has not used the technology to the accounts of Qualcomm or Beijing Xiaomi Mobile Software Company Limited. Referring to Section 4 of FEMA, he submits that no person resident in India shall transfer any foreign exchange, foreign security or any immovable property situated outside India except as provided under FEMA. Since the case of the petitioner falls under Section 4 of FEMA, petitioner cannot contend or raise the question of jurisdiction to initiate proceedings under Section 37A of FEMA.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. Learned senior counsel Sri.Sajjan Poovaiah for petitioner submits that petitioner is before this Court under Article 226 of the Constitution of India, since the Authorities under Section 37A of FEMA have no competency or jurisdiction to initiate proceedings against petitioner, as the case of the petitioner would not fall under Section 4 of FEMA. It is his submission that petitioner has not transferred or parked foreign exchange, foreign security or any immovable property situated out side India. It is submitted that petitioner has paid royalty since 2016 to the patent holder for using mobile technology i.e., SEP.   It is submitted that petitioner has indirectly paid royalty to Qualcomm. Though license is indirect, payment of royalty is direct to Qualcomm. It is submitted that petitioner has paid royalty from 2016 to 2022 and the same is recognized and accepted by the Income Tax Authorities. It is submitted that Income Tax Authorities during assessment have accepted royalty paid by the petitioner to Qualcomm and when it was within the knowledge of the Authorized Officer with regard to acceptance of royalty by the Income Tax Authorities, the Authorized Officer ought not to have proceeded with. It is his submission that the ingredients of Section 4 are not satisfied so as to initiate proceedings under Section 37A of FEMA. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. It is submitted that royalty paid to Qualcomm and Beijing Xiaomi Mobile Software Company Limited is pursuant to ordinary business transactions which have been duly disclosed and examined by the Income Tax Authorities. The conclusion of the respondents that payment of royalty in relation to Standard Essential Patent, foreign exchange has been transferred out side India by the petitioner through Qualcomm and is held out side India in contravention of Section 4 of FEMA is totally baseless and opposed to the material on record. It is submitted that Qualcomm is the owner of Standard Essential Patent Technology, without the said technology, no mobile device sold by the petitioner will have access to the mobile network interoperability. Transfer of foreign exchange by the petitioner in the form of royalty cannot be considered as transfer of foreign exchange out of India in contravention of Section 4 of FEMA.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. In the case on hand, petitioner is before this Court questioning the order passed by Authorized Officer under sub-Section[1] of Section 37A of FEMA. Sub- section[1] of Section 37A of FEMA empowers the Authorized Officer to pass seizure order if the Authorized Officer has reason to believe that foreign exchange has been transferred and is suspected to have been held in contravention of Section 4, by recording reasons in writing, seize value equivalent, situated within India, of such foreign exchange. The Authorized Officer after passing seizure order is required to place the seizure order with entire/relevant material before the Competent Authority within a period of 30 days from the date of such seizure. The Competent Authority shall dispose of the petition within a period of 180 days from the date of seizure by either confirming or by setting aside such order after giving an opportunity of being heard to the representatives of the Department as well as to the aggrieved persons. Against the order passed by the Competent Authority in the adjudication proceedings, person aggrieved is provided with remedy of appeal to the Appellate Tribunal under sub-Section [5] of Section 37A of FEMA. At the stage of seizure order under sub-Section (1) by the Authorized Officer, petitioner is not provided any opportunity and the order is passed on the basis of material available with the Authorized Officer. The Authorized Officer would be in the process of passing order on the material from which he has reason to believe and suspect the transfer of foreign exchange in contravention of Section 4 of FEMA. Only when the Competent Authority issues notice on submission of seizure order along with material by the Authorized Officer, then the person against whom seizure order is passed would get an opportunity. The appeal provided is against the order passed by ‘Competent Authority’ and not against the order passed by Authorized Officer’. Therefore, at this stage, it cannot be accepted that petitioner is provided with alternate remedy as contended by the learned Additional Solicitor General.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. The contention of learned Additional Solicitor General that writ petition is premature, since the Authorized Officer has only passed seizure order under Section 37A[1] and thereafter the Competent Officer when seizure order along with relevant material is placed before him, would necessarily issue notice to the petitioner and petitioner would have an opportunity to disprove the case of respondents with regard to violation of Section 4 of FEMA, requires to be accepted. The Authorized Officer on the material available and on the statements recorded by him during investigation would proceed to pass order, if he has reason to believe that any foreign exchange situated outside India is suspected to have been held in contravention of Section 4 of FEMA, by recording reason, order seizure of the value equivalent, situated within India of such foreign exchange. Seizure order under sub- Section (1) is in the nature of provisional order. In other words, Bank account of the petitioner is attached, but no money of the petitioner is withdrawn or forfeited. But, the petitioner would not be in a position to touch the seized amount. In the case on hand, the impugned seizure order is dated 29.04.2022. The Authorized Officer as required under sub-Section (2) has placed the seizure order along with entire material before the Competent Authority on 27.05.2022. Seizure order passed by the Authorized Officer is like a provisional decision, step in process of taking final decision by the Competent Authority. The seizure order passed by the Authorized Officer is not final and before confirming the said seizure order, petitioner would be provided with an opportunity to have his say in the matter. The petitioner could very well convince the Competent Authority that payment of royalty by the petitioner to Qualcomm and Beijing Xiaomi Mobile Software Company Limited is in the nature of running royalty and is being paid for the use of SEPs and other licensed intellectual property in respect of mobiles sold in India.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22. It is contended that jurisdiction under Article 226 of Constitution of India would be available if the petitioner establishes that the impugned order under challenge is without jurisdiction. Normally, as stated above, writ petition under Article 226 of Constitution of India would be entertained when question of jurisdiction and violation of principles of natural justice is involved. In the instant case, even though the question of jurisdiction is raised, the same involves disputed questions of fact and law. The contention of petitioner is that neither there is violation of Section 4 of FEMA, nor the ingredients of Section 4 are fulfilled to initiate action under Section 37A of FEMA. It is the case of the petitioner that petitioner has paid or transferred foreign exchange to Qualcomm and Beijing Xiaomi Mobile Software Company Limited as royalty for usage of SEPs, technology, other licensed intellectual property in respect of mobiles sold in India of Qualcomm and Beijing Xiaomi Mobile Software Company Limited. On the other hand, it is the case of the respondents that petitioner purchases completely manufactured box packed ready to sell/use mobiles from the manufacturers based in India and directly sells it to distributors without adding any technology or any other value to the purchased phones. Petitioner has not received any kind of service/software/IPR/technology directly or indirectly in order to pay royalty. Whether the payments made by the petitioner to Qualcomm and Beijing Xiaomi Mobile Software Company Limited could be considered as royalty or whether such payment in the facts of the case would attract Section 4 of FEMA is a question of fact which the Competent Authority has to decide appreciating or considering material placed by the petitioner as well as respondents. The respondents claim that there is no agreement between petitioner and the Qualcomm and royalty is being paid based on a letter dated 17.05.2016 and amended master software agreement dated 01.08.2016. Whether the petitioner has used the technology or IPR of Qualcomm and whether there was agreement for usage of technology or IPR and whether the payment made by petitioner is for usage of technology or IPR is a question of fact which the Competent Authority has to decide. Normally, royalty is a payment made for usage of technology or IPR by the manufacturer to the IPR holder. In the case on hand, it is for the petitioner to establish that apart from manufacturer of mobile phones, the petitioner who purchases manufactured mobile phones would also be liable to pay royalty. Therefore, in the facts and circumstances of the case, I am of the opinion, that question with regard to jurisdictional issue may be urged before the Competent Authority and the Competent Authority could determine the same while passing order under sub-Section [3] of Section 37A of FEMA. The Hon’ble Apex Court in the case of Management of Express Newspaper (Private) Ltd., Madras V/s. The Workers and Others [AIR 1963 SC 569], has held that normally, the questions of fact though there may be jurisdictional facts, decision of which depends upon appreciation of evidence, should be left to be tried by the Special Tribunals constituted for that purpose. In the case on hand also, based on the agreements placed on record by the petitioner, Competent Authority would have to decide whether the case of petitioner falls within four corners of Section 4 of FEMA or the payments are towards royalty.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24. Learned counsel for the petitioner placed reliance on the decision of the Hon’ble Apex Court in RADHA KRISHAN INDUSTRIES v/s STATE OF HIMACHAL PRADESH AND OTHERS reported in (2021)6 SCC 771 to contend that the provisional attachment could be termed as very drastic and has far reaching consequences. Such power could be used sparingly and only on substantive weighty grounds and reasons. The above decision arises from Himachal Pradesh Goods and Services Tax Act, 2017. The issue before the Hon’ble Apex Court was whether the orders of provisional attachment issued are in consonance with the conditions stipulated in Section 83 of the HPGST Act and whether the High Court was right in concluding that the provisional attachment could not be challenged in a petition under Article 226 of Constitution of India. The issue is answered at paragraph 66, observing that appeal is provided under HPGST Act against order passed by Adjudicating Authority and not against order passed by Commissioner. The Hon\'ble Supreme Court observed that the power of provisional attachment under Section 83 of the Act should be exercised by authority only if there is reasonable apprehension that the assessee may default the ultimate collection of demand that is likely to be raised on the completion of the assessment. The facts of the present case are entirely different. The CGST Act deals with revenue to the State whereas FEMA deals with transfer of foreign exchange in contravention of FEMA.  The scheme of CGST as well as FEMA are altogether different. The provisional attachment under CGST cannot be compared to that of seizure order under Section 37-A(1) of FEMA.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25. Section 37A of FEMA provides mechanism to decide the contravention or otherwise of Section 4 of FEMA. The case of the petitioner is at the stage of sub- Section [1] of Section 37A of FEMA which is impugned in the present writ petition. Timeline is fixed under Section 37A of FEMA for conclusion of the proceedings initiated by the Authorized Officer. The Authorized Officer has passed seizure order which is in the nature of provisional order is to be placed before the Competent Authority within 30 days from the date of such seizure order. The impugned order is dated 29.04.2022 and the learned Additional Solicitor General Sri.M.B.Naragund has submitted that within 30 days i.e., on 27.05.2022 itself the Authorized Officer has placed the seizure order along with relevant material before the Competent Authority. Since the seizure order and relevant material is already placed before the Competent Authority, it would be appropriate for this Court to direct Competent Authority to issue notice of hearing to the petitioner, hear the petitioner as well as representatives of the Directorate of Enforcement and pass appropriate orders in accordance with law. The timeline of 180 days mentioned in sub-Section [3] of Section 37A is an outer limit. In the facts and circumstances, since the petitioner contends that seizure order has affected day-to-day business of the petitioner, it would be appropriate for this Court to direct the Competent Authority to dispose of the petition expeditiously but not later than 60 days from the date of making available copy of this order.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>27. This Court, by order dated 05.05.2022 stayed the impugned order dated 29.04.2022 (Annexure-A) subject to condition that the petitioner shall operate Bank accounts which are seized under the impugned order, only for the purpose of meeting expenses for carrying out day to day activities of the Company and observed that order shall not confer any right on the petitioner to make payment in the form of royalty or in any other form to the Companies located outside India. Further, on 12.05.2022, this Court clarified that the petitioner is at liberty to take Overdraft and make payments from such Overdrafts to Foreign Entities excluding payment of royalty. Interest of justice would be met, if the above interim order is continued till orders are passed by the Competent Authority as stated above. The interim order passed by this Court on 05.05.2022 and clarified on 12.05.2022 would enure to the benefit of the petitioner, till the Competent Authority passes order under sub-Section (3) of Section 37-A of FEMA. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>With the above, writ petition stands disposed of.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b9fb469fc6ff25e02781d5a4b7517996.JPG', 'b0b3e613c7a02f43049381f201a31faf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-12', 1, '', '', '2022-07-11 14:37:04', '2022-07-12 08:33:10'),
(1932, '00Rg07Jw5jZ5AnDf2lG2sCy7l', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Non-binding arbitration agreement with an option to litigate further if the parties do not resolve the disputes pursuant to such non-binding arbitration cannot be termed an arbitration agreement. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Masters Management Consultants (India) Private Ltd Vs Nitesh Estates Limited and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 12297 of 2016 decided on 1 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sachin Shankar Magadum.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The plaintiff has instituted a suit for recovery of sum of Rs.1,66,99,728/- along with interest at the rate of 18% per annum. The plaintiff claims that it has entered into a project management and construction management agreement with defendant No.2, the owner, and defendant No.1 who appears to be the developer. The plaintiff claims that this agreement was entered into on 30.05.2012. The plaintiff claims that in terms of clause 4.1 of the agreement, he is entitled for a sum of Rs.5,05,00,000/- plus service tax as per the agreement. The plaintiff has specifically pleaded that in terms of the agreement, he has rendered service as enumerated under the agreement and accordingly invoices are raised in terms of payment schedule under clause 4.1 of the agreement. On these set of pleadings, the suit for recovery is instituted by the present plaintiff herein seeking recovery of the above said amount. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. The defendants, on receipt of summons, tendered appearance requesting the Court to refer the dispute to arbitration by invoking arbitration clause as provided in clause 12 of the agreement. The said contention was strongly resisted by the plaintiff by filing detailed objections. The present plaintiff specifically pleaded at para 5 of the objection that the arbitration contemplated under the agreement is a non-binding arbitration and contrary to the provisions of the Act. The plaintiff further claims that in absence of valid arbitration agreement between the parties, neither parties are obligated to commence arbitration under the Act in order to resolve the disputes arising out of or in connection with the agreement. Referring to clause 12.2 of the agreement, plaintiff specifically contended that the said clause clearly indicates that parties intended to refer the disputes to a non-binding arbitration. Therefore, contended that a non-binding arbitration is not a valid arbitration agreement in terms of the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The learned Judge having examined the rival contentions has proceeded to allow the application filed under Section 8 of the Act and consequently, plaint is returned. The learned Judge while allowing the application was of the view that clause 12 in the agreement clearly provides alternate dispute resolution mechanism and therefore, plaintiff has to take recourse in terms of clause 12 of the agreement. It is in this background, learned Judge was of the view that the plaintiff without invoking clause 12 of the agreement has approached this Court and therefore, the learned Judge found that it was necessary to refer the matter to the dispute resolution mechanism relegating the parties to seek redressal of their dispute in terms of agreement dated 30.05.2012. It is this order which is under challenge. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Shri Aditya Vikram Bhat, learned counsel appearing for the petitioner/plaintiff reiterating the grounds urged in the writ petition would vehemently argue and contend before this Court that the order of the learned Judge is contrary to law and also contrary to the material placed before the learned Judge.  Referring to the relevant clause 12.2 of the agreement, he would contend that the learned Judge has virtually misread the relevant clause incorporated in the agreement. Referring to clause 12.2, he would contend that agreement to refer the dispute to non-binding arbitration is not an arbitration for the purpose of Section 7 of the Act and therefore, he would contend that the defendants are not entitled to invoke Section 8 of the Act at all. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">7. To buttress his arguments, he has referred to the meaning of \"non-binding\" by referring to \'Advanced Law Lexicon\'. To demonstrate that the order under challenge is contrary to said proposition of law relating to non-binding arbitration agreement, he has placed reliance on the judgment rendered by this Court in the case of Durha Constructions Private Limited vs. Bateman Engineering (India) Private Limited1. To strengthen his hands, he has further placed reliance on the judgment rendered by the Hon\'ble Apex Court in the case of K.K.Modi vs. K.N.Modi and Others. Referring to the judgment rendered by the Co-ordinate Bench of this Court in the case of Durha Constructions (supra), he would point out that the words used in the arbitration clause should disclose a determination. He would further point out that the clause in the agreement should clearly demonstrate that the parties have agreed by way of an agreement consenting for referral of dispute to an Arbitrator and further, </font></span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">they should agree that the decision of the Tribunal in respect of the disputes will be binding on them. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">8.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">Placing reliance on the principles laid down by the Co-ordinate Bench in the above said judgment, he would further contend that mere use of words \"arbitration\" or \"arbitrator\" in the clause will not in itself make an arbitration agreement. He has also placed reliance on the judgment rendered by the Hon\'ble Apex Court in the case of Jagdish Chander vs. Ramesh Chander and Others. Placing reliance on para 8 of the said judgment, he would contend that where a clause relating to settlement of disputes, contains words which specifically exclude any of the attributes of an arbitration agreement or contains anything that detracts from an arbitration agreement, it cannot be termed as an arbitration agreement.  If the clause in the agreement gives an indication that a party who is not satisfied with the decision of the authority, may seek redressal of his grievance before </span><font face=\"Calibri, sans-serif\">the Civil Court, then it cannot be termed as an arbitration agreement. Therefore, he would contend that the judgment rendered by the Hon\'ble Apex Court in the case Jagdish Chander (supra), if applied to the present set of facts, then it is quite clear that the present plaintiff is entitled to institute a suit before the competent civil Court seeking recovery of money and clause 12.2 would come to the aid of the plaintiff and therefore, the jurisdiction of competent civil Court would not stand excluded as claimed by defendants.</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. On meticulous examination of the material on record, the following points would arise for consideration:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>1)<span style=\"white-space:pre\">	</span>Whether the impugned order passed by the learned Judge on an application filed under Section 8 of the Act can be questioned by invoking the writ jurisdiction under Article 227 of the Constitution of India? </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>2)<span style=\"white-space:pre\">	</span>Whether the finding of the learned Judge that plaintiff and defendant Nos.1 and 2 in terms of arbitration clause incorporated at clause 12 of the agreement have to seek redressal of their dispute by referring the dispute to an Arbitrator in terms of clause 12 of the agreement dated 30.05.2012 is palpably erroneous?<br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Point No.1:<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13. Insofar as maintainability of the writ petition is concerned, the law in that regard is no more res integra. Learned counsel appearing for the defendants has laid more emphasis on the operative portion of the order. The operative portion of the order under challenge indicate that plaint is returned.  The defendants claim that this order is passed under the provisions of Order 7 Rule 11(d) of CPC and plaint is returned and therefore, the plaintiff has a remedy of an appeal.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Point No.2: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17. On reading of clauses 12.1 and 12.2 coupled with definition of \'non-binding\', this Court would find that there is absolutely no intention on the parties to enter into arbitration agreement and if there is no intention on the part of the parties to the agreement to refer their disputes to Arbitrator for adjudication and if there is no willingness to be bound by a decision of such Tribunal, the present suit instituted before the Court is very much maintainable. The impugned order under challenge has to be examined in the light of the principles laid down by the Hon\'ble Apex Court in the case of Jagdish Chander (supra). The Hon\'ble Apex Court in the judgment cited supra was of the view that mere clause in an agreement will not make it an arbitration agreement where a further clause is found in the agreement indicating a further fresh consent of the parties for reference to arbitration. The Hon\'ble Apex Court was of the view that the main attribute of an arbitration agreement is consensus of the parties to refer the dispute to an arbitration. Therefore, the principles laid down by the Hon\'ble Apex Court in the case of Jagdish Chander (supra) are squarely applicable to the present case on hand.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18. Clause 12.2 clearly contemplates that dispute will be immediately submitted to non-binding arbitration under the Act. It further contemplates that if parties are unable to satisfactorily resolve the disputes pursuant to such non-binding arbitration, either party may initiate litigation. It is in the background of clause 12.2, this Court is of the view that the agreement cannot be termed as an arbitration agreement. Therefore, clause 12.2 clearly demonstrates that the parties are at liberty to ventilate their grievances by initiating litigation before the Civil Court and therefore, clause 12.2 clearly detracts from an arbitration agreement and therefore, the agreement which is the subject matter of the suit cannot be treated as an arbitration agreement. The present agreement does not impliedly either spells out or contemplates a clause providing reference of dispute to arbitration. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19. In the light of long line of authorities rendered by the Hon\'ble Apex Court, clause 12.2 clearly demonstrates that there is no arbitration agreement between the parties and the clause incorporated in the agreement does not contain the attributes that are required to be present for an agreement to be considered as an arbitration agreement. Therefore, the Court below grossly erred in returning the plaint by invoking Section 8 of the Act. Therefore, the order under challenge is not at all sustainable.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>The writ petition is allowed</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3938d173f889bd60528140a23e2bb2a2.JPG', '79f18d986c360cf1fc465ad46ff538aa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-12', 1, '', '', '2022-07-11 17:22:48', '2022-07-12 13:59:04');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1930, 'ffjuTSZwYXEaVRve9o07HhAnz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Every order or transaction pursuant to fraudulent act is void ab initio and the same cannot be allowed to stand\'\'. Karnataka High Court, while ordering restoration of khata which was fraudulently changed. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Hanmanthappa Bandappa Tadakal Vs The Municipal Commissioner Office and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">W.P 200378 of 2018 decided on 27 June 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice S. Vishwajith Shetty.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">2. The petitioner claims to be the absolute owner of the house property bearing CMC No.5-5-91/A (Old) and 5-5-84 (New) situated near Ashoka Lodge, Station Area, Yadgir. It is his specific case that the said property originally belonged to his ancestors and after their death, the revenue records were mutated in his name and he was paying property tax from the year 1994-95 to 1999-2000. Thereafter, in the year 2001, the petitioner had to move to Kalaburagi for the purpose of the education of his children and at the time of shifting he had asked his distant relative Smt. Annapurnamma to take care of the property in question. Taking undue advantage of the absence of the petitioner, respondent no.3 - Smt. Annapurnamma claiming herself to be the daughter of the petitioner, had created an affidavit in the name of the petitioner to the effect that he had no objection to change the revenue entries in respect of the property in question in favour of the said Annapurnamma.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">3. The Chief Executive Officer of City Municipal Council, Yadgir, based on such an affidavit, had ordered to delete the name of the petitioner and enter the name of respondent no.3 -Smt. Annapurnamma in the revenue records of the property in question. It appears that subsequently Smt. Annapurnamma has executed another affidavit for transfer of the said property in favour of her son - respondent no.4 herein and based on such affidavit, the Chief Executive Officer of City Municipal Counsel, Yadgir, has ordered to transfer the property in the name of respondent no.4. Petitioner, after coming to know about the same, had filed a revision before respondent no.2 who has dismissed the same vide impugned order at Annexure-G on the ground that since the dispute is civil in nature, the petitioner was required to approach the Civil Court for adjudication of his dispute. Being aggrieved by such an endorsement dated 14.12.2017 issued by respondent no.2 vide Annexure-G, the petitioner is before this Court. The contesting respondents who have entered appearance have not filed their statement of objections till date.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">4. Learned Counsel for the petitioner submits that the material on record would go to show that the revenue records of disputed property, earlier stood in the name of the petitioner herein. Only on the basis of the alleged affidavit, the revenue records of the property in question were transferred in the name of respondent no.3. He submits that respondent no.1 had no authority or jurisdiction to change the revenue records of the property in question on the basis of an affidavit produced by respondent no.3 even without issuing notice to the petitioner. He submits that the said affidavit which is at Annexure-B is a fraudulent document and the signature found in the said document is not of the petitioner. He submits that respondent no.3 is not the daughter of the petitioner herein and she is only his distant relative. However, in the affidavit, it is mentioned that she is the daughter of the petitioner.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">5. He submits that on the basis of the affidavit, the revenue records of the property in question could not have been changed in favour of a stranger by respondent no.1. He submits that after coming to know about the fraud played by respondent no.3 and her family members, a revision petition was filed before respondent no.2. However, respondent no.2 without appreciating the fact that the entries in respect of the property in question were fraudulently changed in favour of respondent nos.3 to 5, has dismissed the said revision with an observation that the petitioner is required to approach the Civil Court for adjudication of his rights. He submits that when admittedly the property earlier stood in the name of the petitioner and the entries in respect of the said property were changed fraudulently, respondent no.2 ought to have exercised his jurisdiction and restored the entries as it stood earlier.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">6. Per contra, learned Counsel appearing for respondent nos.3 to 5 submits that the petitioner has no title over the property in question. He submits that the true owner of the property has executed a Will in the name of respondent no.3, and therefore, on the strength of such a Will, respondent no.3 is the absolute owner of the property. He submits that after the property was transferred in the name of respondent no.3, two other transactions have taken place, wherein the property was initially transferred by respondent no.3 in favour of her son respondent no.4 and respondent no.4 inturn has transferred the property in favour of respondent no.5 who is his brother. Therefore, unless the subsequent transactions are challenged, no relief can be granted to the petitioner herein. He submits that there is an inordinate delay of 17 years in filing the revision before respondent no.2 which has not been properly explained, and therefore, the revision was liable to be dismissed on the ground of delay and laches. He further submits that even if this Court is of the opinion that the Regional Commissioner is required to re-consider the matter, the impugned endorsement could be set aside and the matter may be remanded to the Regional Commissioner for considering the title of respondent nos.3 to 5.</font><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">11. On the basis of the affidavit, the municipal authorities could not have changed the entries in respect of the immovable property in favour of third party who is a stranger, that too without issuing notice to the person in whose name the revenue records originally stood. It is a settled principle of law that the transfer of immovable property can be done, only by a registered  document  and  on  the  basis  of  unregistered documents, the revenue authorities cannot change the revenue entries of the immovable property.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">12. In the case on hand, the municipal authorities have changed the entries in respect of the property in question which originally stood in the name of the petitioner in favour of respondent no.3 on the basis of an affidavit which prima facie appears to be a fraudulent document. Respondent no.3, thereafter, has executed yet another affidavit and on the basis of the same, the entries in the revenue records of the property in question have been changed in the name of her son -respondent no.4 herein and respondent no.4 herein appears to have executed another document in favour of respondent no.5 who is also the son of respondent no.3. On the strength of the said document, the entries in respect of the property appears to have been transferred in the name of respondent no.5.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">15. In the case on hand, the material on record would prima facie go to show that the entries in respect of the property in question were transferred in the name of respondent no.3 on the basis of the fraudulent document produced by respondent no.3. In the said document, she claims that she is the daughter of the petitioner, but as a matter of fact, she is not the daughter of the petitioner herein. Further, in the said document, the signature of the petitioner is found in Kannada, whereas it is case of the petitioner that he signs only in English and the admitted signatures found in the affidavit and vakalath available in the file are in English. Further, as stated earlier, on the basis of the affidavit, municipal authorities could not have transferred the entries in the revenue records of the property in question in favour of respondent no.3 who is a stranger not only to the property but also to the petitioner. It is not in dispute that the petitioner was not heard prior to such a change in the revenue records and the entries were changed by the municipal authorities on the basis of the affidavit said to have been executed by the petitioner.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">16. Respondent no.2 has failed to appreciate the aforesaid aspects of the matter and has observed that since there are two other transactions in respect of the property in question after the revenue records of the property in question was originally transferred in the name of respondent no.3 and since there is a lapse of 17 years from the date of original order passed by respondent no.1, the petitioner is required to approach the Civil Court for the purpose of adjudication of his rights. Respondent no.2 has not appreciated that the subsequent transactions are inter se within the family. Respondent no.3 has executed an affidavit and on the strength of the said affidavit, the property is transferred in the name of respondent no.4 who is her son and thereafter on the basis of another unregistered document, the said property has been now transferred in the name of respondent no.5 who is also the son of respondent no.3.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">17. It appears that the said transactions are made only to create documents and deprive the petitioner of his right and title over the property in question. The petitioner is not required to challenge any of such transactions which have come into existence subsequent to the change of entries made in favour of respondent no.3 based on the fraudulent document submitted by her before respondent no.1. Respondent no.2 without appreciating this aspect of the matter, has erred in rejecting the revision petition filed by the petitioner and directing him to approach the Civil Court for adjudication of his rights. Admittedly, the petitioner is not a party to any of the alleged transactions in respect of the property in question. As observed earlier, the revenue entries in respect of the property in question have been changed on the basis of fraudulent document submitted by respondent no.3, for which the petitioner is not a party and respondent no.1 while changing the revenue records of the property in question based on such a fraudulent document, has not even issued a notice to the petitioner in whose name the revenue records of the property in question stood as on the said date. Though belated exercise of powers in revisional jurisdiction is impermissible, in a case of fraud such an exercise of power would be necessary to restore the loss suffered by the victim of fraud. The exercise of powers belatedly is normally not done so as to avoid interfering with the rights of third party which would have been created during the intervening period of delay. However, in the case on hand, the alleged transactions are all in between the family members i.e., between respondents 3 to 5 and no third party interest has been created by them in the property in question.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">18. The revision petition has been filed by the petitioner after he came to know about the change of the entries in the revenue records of the land in question based on the fraudulent documents by respondent Nos.3 to 5. Since the petitioner was not at all aware of the change made in the revenue records of the property in question, which originally stood in his name, the delay if any in filing the revision petition would not have come in the way of respondent no.2 in considering the revision petition on merits as the material available on record would go to show that the entries in the revenue records of the land in question were transferred in the name of respondent no.3 based on the fraudulent documents submitted by her. The Hon\'ble Supreme Court in the case of JOINT COLLECTOR, RANGA REDDY DISTRICT VS D.NARASING RAO - (2015)3 SCC 695, has held that power of revision should be exercised soon after detection and discovery of fraud and failure on the part of the authorities concerned to exercise such powers within a reasonable time after the fraud is discovered, may justify such action being interdicted by the Court. In the case of STATE OF ORISSA VS BRUNDABAN SHARMA - (1995) SUPP.(3) SCC 249, the Hon\'ble Supreme Court has held that exercise of power of revision after a lapse of 27 years after the date of alleged grant of patta, was legal and valid as its authenticity and correctness was shrouded with suspicious features.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">20. In a petition under Article 226 of the Constitution of India, if the material on record would go to show that there is a fraud played by any of the parties, the said parties are not entitled for any relief at the hands of this Court. In the case on hand, it is prima facie seen that the entries made in respect of the land in question were transferred in the name of respondent no.3 on the basis of the fraudulent documents submitted by her. The respondent no.3, who has got the entries in respect of the land in question changed in her name on the strength of fraudulent documents, cannot seek any equity at the hands of this Court.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">21. Learned Counsel for respondents 3 to 5 has strenuously contended that he may be given an opportunity to produce necessary documents before respondent no.2 to prove his title. Admittedly, no statement of objection has been filed by respondents 3 to 5 before this Court to establish their title in respect of the property in question. Though the learned Counsel for the said respondents has submitted that the real owner of the property in question has executed a registered Will in favour of respondents 3 to 5, he has not produced the copy of the said document before this Court. Even if it is presumed that the Will has been executed in favour of respondents 3 to 5 in respect of the property in question, the revenue authorities cannot take the said document into consideration and change the entries in the revenue records of the land in question.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">22. Admittedly, prior to the order impugned at Annexure-C, the entries in the revenue records of the property in question stood in the name of the petitioner. If respondents 3 to 5 have got documents to establish their title, it is for them to approach the jurisdictional civil court and seek necessary reliefs and it is needless to state that the entries which are restored in the name of the petitioner pursuant to this order will be subject to the outcome of such civil dispute if initiated by respondents 3 to 5. Since the entries in the revenue records have been changed based on an affidavit, which prima facie appears to be a fraudulent document, the orders passed at Annexures-C & D1 and the impugned endorsement issued at Annexure-G cannot be sustained.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">ORDER: </span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">23. The writ petition is allowed.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">The impugned orders dated 25.11.2000 and 02.09.2002 passed by respondent no.1 at Annexures-C & D1, respectively, and the endorsement dated 14.12.2017 issued by respondent no.2 at Annexure-G are quashed. The respondent no.1 is directed to restore the name of the petitioner in the revenue records of the land bearing Survey CMC No.5-5-91/A (old) and 5-5-84 (new) forthwith.</span></font></span></p>', '53d9668fc0da686894226032bccbddfe.jpg', '574c5d48eec86701f46051f5afb81175.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-12', 1, '', '', '2022-07-11 03:32:37', '2022-07-12 10:31:10'),
(1933, 'Kti3BKf1PsoxXYAtQmfJEqFtf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'The likelihood of divergence of views by different High Courts cannot be a ground for transfer of pending cases to Supreme Court under Article 139A of the Constitution of India. Supreme Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Union of India Vs The United Planters Association of Southern India etc and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Transfer Petition (Civil) 884-895 of 2016 decided on 11 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dinesh Maheshwari and Justice Vikram Nath.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. By way of these petitions under Article 139A(1) read with Order XL of the Supreme Court Rules, 2013, the petitioners, led by the Union of India, have prayed for transfer of various writ petitions, pending before different High Courts challenging the constitutional validity of the Payment of Bonus (Amendment) Act, 2015 [being Act No. 6 of 2016]1 , to this Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2. As per the record, though the first set of transfer petitions in this batch, being T.P.(C) Nos. 884-895 of 2016, was entertained on 01.07.2016 by issuing notices but, in the next set of petitions, being T.P. </font><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(C) Nos. 1456-1461 of 2016, while issuing notices on 26.09.2016, further\r\nproceedings in the related writ petitions pending before the Allahabad\r\nHigh Court were stayed. Thereafter, from time to time and until\r\n06.08.2018, other transfer petitions comprising this batch were\r\nentertained and similar interim orders were passed, staying further\r\nproceedings in the writ petitions pending before the respective High\r\nCourts. In the next two matters, being T.P.(C) No. 1954 of 2018 and T.P.\r\n(C) No. 218 of 2019, notices were issued respectively on 26.11.2018 and\r\n08.02.2019 but without any specific stay order. Thereafter, on 08.04.2019,\r\nT.P.(C) No. 683 of 2019 was entertained and while issuing notices, again,\r\nfurther proceedings in the subject writ petition before the High Court\r\nconcerned were stayed.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. It may be noticed that in T.P.(C) Nos. 1490-1491 of 2016, the\r\nrespondent No. 1 Tata Motors Ltd. has stated no objection to the transfer\r\nof its case to this Court, being W.P.(C) Nos. 11112-13 of 2016 pending\r\nbefore the High Court of Karnataka. Similarly, in T.P.(C) Nos. 590-598 of\r\n2017, one of the respondents, the State of Madhya Pradesh, has stated\r\nno objection if the subject writ petition pending before the High Court of\r\nMadhya Pradesh is transferred to this Court. Similar has been the stand\r\nof the State of Madhya Pradesh in T.P.(C) Nos. 760-789 of 2017 and of\r\nthe State of Bihar in T.P.(C) No. 856 of 2018. The State of Himachal\r\nPradesh has also not stated any specific objection in relation to the prayer\r\nfor transfer in T.P.(C) No. 1237 of 2018. Similarly, the respondent Nos. 1 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and 2 in T.P.(C) Nos. 885-886 of 2016, being Karnataka Employers\r\nAssociation and Sai Security Printers Pvt. Ltd., have also stated no\r\nobjection if W.P.(C) No. 5311 of 2016 pending before the High Court of\r\nKarnataka is transferred to this Court. However, several of the other\r\nrespondents in this batch of matters have strongly opposed the prayer for\r\ntransfer of the respective writ petitions to this Court on various grounds,\r\nas shall be noticed a little later. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>4. Shorn of unnecessary details, the aspects relevant for the present\r\npurpose are as follows:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>4.1. By the said Amendment Act of 2015, two major changes were\r\nintroduced to the Payment of Bonus Act, 19652\r\n: one being the\r\namendment of clause (13) of Section 2, raising the salary limit from Rs.\r\n10,000/- to Rs. 21,000/- per month for the purpose of coverage under the\r\nAct; and the other being raising the wage ceiling for calculating the bonus\r\nunder Section 12 from Rs. 3,500/- to Rs. 7,000/- per month or the\r\nminimum wages for the scheduled employment as fixed by the\r\nappropriate Government, whichever be the higher. Further, by way of\r\nExplanation to Section 12, it was clarified that the expression “scheduled\r\nemployment” shall have the same meaning as assigned to it in clause (g)\r\nof Section 2 of the Minimum Wages Act, 1948. These amendments were\r\ngiven retrospective effect in Section 1 of the Amendment Act of 2015 by\r\nproviding that it shall be deemed to have come into force on 01.04.2014. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>4.4. As per the facts projected before us, the petitions filed in various\r\nHigh Courts in challenge to the aforesaid Amendment Act of 2015 have\r\nbeen entertained with different interim orders in some of the petitions\r\ninasmuch as some of the High Courts have directed that the amendment\r\nshall take effect only from the financial year 2015-16 whereas one High\r\nCourt has directed to implement the same from the financial year 2016-\r\n17. Another High Court has directed that no coercive action shall be taken\r\nagainst the writ petitioners.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>6. Mr. K.M. Nataraj, the learned ASG has pointed out that the said\r\nissues, relating to the retrospective operation of the amended provisions\r\nand linkage of calculation of bonus with minimum wages for the\r\nscheduled employment, are forming the subject-matter of more than 140\r\nwrit petitions filed across the country in as many as 18 High Courts. The\r\nlearned ASG would submit that with large number of petitions involving\r\nsimilar and akin issues being taken up in different High Courts, there is\r\nevery likelihood of conflicting views being expressed by different High\r\nCourts, which may lead to an undesirable situation. In the given\r\ncircumstances, according to the learned ASG, withdrawing all such writ\r\npetitions to this Court for analogous hearing would be in the best interest\r\nof the parties as also for maintaining consistency in operation of the\r\nstatute. As regards a line of submissions by some of the parties that, if at\r\nall, the matters may be transferred to one High Court, the learned ASG <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">has submitted that such a course may not serve the best interest of the\r\nparties; and would cause hardship to the parties whose petitions are\r\npending before other High Courts and who may not be able to effectively\r\ncontest the matter before any High Court other than their jurisdictional\r\nHigh Court.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. Per contra, the learned senior counsel Mr. Abhijit Chatterjee\r\nappearing for contesting respondents, including in T.P.(C) No. 786 of\r\n2017, has submitted that if the contention regarding the possibility of\r\nconflicting decisions by different High Courts is accepted, it would\r\npractically mean that every challenge to the validity of a central statute\r\nshall have to be decided by this Court, which is not the mandate and\r\nframework of the constitutional scheme. According to the learned counsel,\r\nmere possibility of divergence of views or interpretations cannot be a\r\nground for transfer of all the proceedings to this Court. The learned\r\ncounsel has strongly relied upon a 3-Judge Bench decision of this Court\r\nin the case of Union of India v. M/s Cummins Technologies India Pvt.\r\nLtd. & Ors. Etc.: Transfer Petition (Civil) Nos. 1481-1482 of 2021,\r\ndecided on 20.09.2021, to submit that in the said case, the prayer for\r\ntransfer was declined by this Court even though it was argued on behalf\r\nof the petitioner-Union of India that the same issue pending in various\r\nHigh Courts was having implications on a large number of matters and\r\nalso ramifications of huge amount payable under a central statute.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>7.2. The learned senior counsel has also argued that the proposition of\r\nconsolidation of all the writ petitions before one High Court also deserves\r\nnot to be accepted because no one High Court would be convenient to\r\nthe writ petitioners who have filed their respective petitions in their\r\njurisdictional High Courts. The learned counsel, however, submitted in the\r\nalternative that if at all the petitions are to be consolidated before one\r\nHigh Court, the same may be transferred for analogous hearing before\r\nthe Calcutta High Court, where the related writ petitions have already\r\nappeared in the cause list for hearing and disposal. The learned counsel\r\nhas referred to the case of Institute of Chartered Accountants of India\r\nv. Southern Petrochemical Industries Corporation Limited and Anr.:\r\n(2007) 15 SCC 649 wherein this Court adopted the course of transferring\r\nvarious writ petitions pending before different High Courts, and involving\r\nsimilar issues relating to the constitutional validity of Para 33 of\r\nAccounting Standards 22 framed by the Institute of Chartered\r\nAccountants of India, to the Calcutta High Court, where the petitions were\r\nready for hearing.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>12.1. Thus, when the wage ceiling in terms of the amended Section 12\r\nhas its correlation also with the minimum wages for the scheduled\r\nemployment as fixed by the appropriate Government, the decision on the\r\nquestions being raised in the respective writ petitions, may have to be\r\naddressed with reference to the relevant decision of the appropriate\r\nGovernment, depending on the nature of establishment; and that may\r\ninclude the particular State Government too. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>14. Apart from the above, it is noticeable from the latest decision of\r\nthe 3-Judge Bench in M/s Cummins Technologies India Pvt. Ltd.\r\n(supra) that even when the cases were indicated to be pending in\r\ndifferent High Courts involving similar issues concerning constitutional\r\nvalidity of Section 16(2)(c) of the Central Goods and Services Tax Act,\r\n2017 and it was submitted that the issues might have implication on a\r\nnumber of matters pending across the country with ramification of huge\r\namount payable under the said Act, this Court expressed disinclination to\r\nentertain the transfer petitions for the reason that various High Courts\r\nwere already seized of the matter and it was also noticed that before one\r\nHigh Court, the pleadings had been exchanged. Therefore, while\r\ndeclining the prayer for transfer, this Court expected expeditious disposal\r\nof the pending petitions before the respective High Courts.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>15. We need not multiply the reference to various other orders passed\r\nby this Court relating to the prayer for transfer because, ultimately, the\r\ndecision to transfer or not, to this Court or to one High Court, has been\r\ntaken by this Court in exercise of its jurisdiction under Article 139A of the\r\nConstitution of India with reference to the given set of facts and\r\ncircumstances. No hard and fast rule or any structured formula is\r\nprovided nor appears desirable; a comprehensive view of all the facts and\r\nrelevant surrounding factors is the best guiding light for exercise of this\r\njurisdiction under Article 139A of the Constitution of India.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>16. In the present set of facts and circumstances, for what has been\r\nnoticed and discussed hereinabove, we are clearly of the view that\r\ntransfer of the pending writ petitions from the respective High Courts is\r\nnot called for. The likelihood of divergence of views, looking to the\r\nframework of the statute itself, cannot be a ground for transfer. Equally,\r\nthere appears no reason to transfer the matters to any one High Court;\r\nrather it appears just and proper that the petitions in the jurisdictional High\r\nCourts are decided with reference to their own factual background and\r\nthe law applicable. Hence, we do not consider it necessary to deal with\r\nthe cases cited in support of the proposition for transfer of the matters to\r\nany one High Court, like the decision in the case of Institute of\r\nChartered Accountants of India (supra).\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>17. Accordingly, the prayer for transfer of the subject petitions is\r\ndeclined and all the interim stay orders are vacated while providing that it <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">shall be permissible for the parties to request the respective High Courts\r\nfor expeditious hearing and disposal of the pending writ petitions. For that\r\nmatter, we would also request the respective High Courts to proceed with\r\nthe matters expeditiously, while assigning them reasonable priority</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'cb151aa65e689957219dc958b34b3bcd.png', '09a38e716d84f42b6d67951a67c7ec48.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-12', 1, '', '', '2022-07-12 01:53:53', '2022-07-13 03:50:27');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1934, 'OkcVUNfEr2JwoRxam8ksljsMo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'It is the duty of Courts to put parties in the same position they would have been but for the interim order when the writ petition is withdrawn. Karnataka High Court. ', '<p style=\"text-align: start;\"><font color=\"#212529\" face=\"Open Sans, sans-serif\" size=\"3\"><b>Lakshmikata K and others vs The State of Karnataka and others. <br>Writ Petition 24308 of 2021. Daily Order dated 19 April 2022</b></font></p><p style=\"text-align: justify; \"><font color=\"#212529\" face=\"Open Sans, sans-serif\" size=\"3\"><b>Order on I.A. No.9/2022</b></font></p><p style=\"text-align: justify; \"><font color=\"#212529\" face=\"Open Sans, sans-serif\" size=\"3\"><b>The petitioners, who are nominated as Councilors to the third respondent-Malur Town Municipal Council under Section 11 of the Karnataka Municipalities Act, have filed this writ petition challenging their exclusion from participat-ing in the election to the post of the President.</b></font></p><p style=\"text-align: justify; \"><font color=\"#212529\" face=\"Open Sans, sans-serif\" size=\"3\"><b>This court granted an interim order dated 29.12.2021, which reads thus :</b></font></p><p style=\"text-align: justify; \"><i><font color=\"#212529\" face=\"Open Sans, sans-serif\" size=\"3\"><b>“The learned Additional Government Advocate accepts notice for respondent Nos.1,2 and 4. </b></font><b style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium;\">Sri Sriranga, learned Senior Counsel for the petitioners and the learned Additional Government Advocate are heard on the grant of ad-interim order.</b></i></p><p style=\"text-align: justify; \"><font color=\"#212529\" face=\"Open Sans, sans-serif\" size=\"3\"><b><i>The learned Senior Counsel for the petitioners relies upon a decision of the Division Bench of this Court in W.A.No.1349/2021 which is disposed of on 13.12.2021 and submits as in the other case so in the present case, the question is whether, in the ab-sence of distinction between \"an elected member\" and \"a nominated member\" in the relevant Rules/law, a nominated member cannot be excluded from casting his/her vote.</i></b></font></p><p style=\"text-align: justify; \"><i><font color=\"#212529\" face=\"Open Sans, sans-serif\" size=\"3\"><b>The learned Additional Government Advocate relies upon the constitutional provisions under Article 243R(2)a(i)(iv) of the Constitution of India read with Section 11(b)(1) of the Karnataka Municipalities Act, 1964. </b></font><b style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium;\">It is seen that the Division Bench of this Court in similarly premised petition, has modified the in-terim order granted in the writ petition permitting \"the nominated members\" to participate in the elec-tion and cast their votes with a further direction to announce the result of the election and such declara-tion shall be subject to final decision.</b></i></p><p style=\"text-align: justify; \"><font color=\"#212529\" face=\"Open Sans, sans-serif\" size=\"3\"><b><i>In the light of the question that is canvassed and the interim order granted by the Division Bench, the petitioners are permitted to cast their votes in the ensuing elections to be held on 30.12.2021 for the post of the President, Malur Town Municipal Council and the declaration of result of such election shall be subject to further orders of this Court.</i></b></font></p><p style=\"text-align: justify; \"><font color=\"#212529\" face=\"Open Sans, sans-serif\" size=\"3\"><b><i>Issue emergent notice to respondent No.3.”</i></b></font></p><p style=\"text-align: justify; \"><font color=\"#212529\" face=\"Open Sans, sans-serif\" size=\"3\"><b>By virtue of the interim order, the petitioners partici-pated in the election to the post of the President and casted their votes. However, the declaration of the result of such an election was subject to further orders of this Court. The fifth respondent contested in the election, but lost the said election by one vote, since the Petitioners herein admittedly casted their votes in favor of the returned candidate .</b></font></p><p style=\"text-align: justify; \"><font color=\"#212529\" face=\"Open Sans, sans-serif\" size=\"3\"><b>The returned candidate had filed an application in I.A. No.7/2022 for impleading him as one of the petitioners. The said application was dismissed as withdrawn on 07.02.2022 on the submission made by Sri. S.S.Naganand, learned Senior Counsel, who had appeared for the said pro-posed petitioner i.e. elected candidate.</b></font></p><p style=\"text-align: justify; \"><font color=\"#212529\" face=\"Open Sans, sans-serif\" size=\"3\"><b>This writ petition was dismissed as withdrawn, reserv-ing liberty to the petitioners to file a comprehensive writ petition challenging the validity of proviso to Section 11(1)(b) of the Karnataka Municipalities Act, 1964. In view of the dismissal of the writ petition as withdrawn, the in-terim order dated 29.12.2021 automatically came to an end, and the votes casted by the petitioners in pursuance of the interim order also stands invalidated. The fifth respon-dent was reserved with liberty to file an application before this Court for restitution of his right.</b></font></p><p style=\"text-align: justify; \"><font color=\"#212529\" face=\"Open Sans, sans-serif\" size=\"3\"><b>The learned counsel for the fifth respondent has sub-mitted that the comprehensive writ petition filed by the pe-titioners in W.P. No.4457/2022 was dismissed by the Divi-sion Bench on 18th April 2022. He submits that in view of the dismissal of the writ petition, the fifth respondent is en-titled for restitution of his right by declaring him as a returned candidate in view of invalidation of the votes casted by the petitioners 1 to 4 as he has lost the election by one vote. In support, he has placed reliance on the deci-sion of the Hon’ble Apex Court in the case of Karnataka Rare Earth and Another Vs. Senior Geologist, Department of Mines & Geology and Another reported in (2004)2 SCC 783, wherein in para 10 it is held as under:</b></font></p><p style=\"text-align: justify; \"><font color=\"#212529\" face=\"Open Sans, sans-serif\" size=\"3\"><b><i>“10. In South Eastern Coalfields Ltd. (su-pra), this Court dealt with the effect on the rights of the parties who have acted bona fide, protected by interim orders of the Court and incurred rights and obligations while the interim orders stood va-cated or reversed at the end. The Court referred to the doctrine of actus curiae neminem gravabit and held that the doctrine was not confined in its application only to such acts of the Court which were erroneous; the doctrine is applicable to all such acts as to which it can be held that the Court would not have so acted had it been correctly ap-prised of the facts and the law. It is the principle of restitution which is attracted. When on account of an act of the party, persuading the Court to pass an order, which at the end is held as not sustainable, has resulted in one party gaining ad-vantage which it would not have otherwise earned, or the other party has suffered an impov-erishment which it would not have suffered but for the order of the Court and the act of such party, then the successful party finally held entitled to a relief, assessable in terms of money at the end of the litigation, is entitled to be compensated in the same manner in which the parties would have been if the interim order of the Court would not have been passed. The successful party can de-mand (a) the delivery of benefit earned by the opposite party under the interim order of the Court, or (b) to make restitution for what it has lost.”</i></b></font></p><p style=\"text-align: justify; \"><font color=\"#212529\" face=\"Open Sans, sans-serif\" size=\"3\"><b>The returned candidate had filed an application for impleading, but service of notice to the said candidate is not necessary, as she had voluntarily withdrawn the appli-cation for impleading her as one of the petitioners at her own risk.</b></font></p><p style=\"text-align: justify; \"><font color=\"#212529\" face=\"Open Sans, sans-serif\" size=\"3\"><b>The Hon’ble Apex Court in the case of State of U.P., through Secretary and Others Vs. Prem Chopra, in Civil Appeal No.2417 of 2022, disposed of on 25.03.2022, at para 24 has held as follows:</b></font></p><p style=\"text-align: justify; \"><i><font color=\"#212529\" face=\"Open Sans, sans-serif\" size=\"3\"><b>“24. From the above discussion, it is clear that imposition of a stay on the operation of an </b></font><b style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium;\">order means that the order which has been stayed would not be operative from the date </b><b style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium;\">of passing of the stay order. However, it does not mean that the stayed order is wiped </b><b style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium;\">out from the existence, unless it is quashed. Once the proceedings, wherein a stay was </b><b style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium;\">granted, are dismissed, any interim order granted earlier merges with the final order. In </b><b style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium;\">other words, the interim order comes to an end with the dismissal of the proceedings. In</b><b style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium;\">such a situation, it is the duty of the Court to put the parties in the same position they </b><b style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium;\">would have been but for the interim order of the court, unless the order granting interim </b><b style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium;\">stay or final order dismissing the proceedings speci-fies otherwise. On the dismissal of </b><b style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium;\">the proceedings or vacation of the interim order, the beneficiary of the interim order shall </b><b style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium;\">have to pay interest on the amount withheld or not paid by virtue of the interim order.”</b></i></p><p style=\"text-align: justify; \"><font color=\"#212529\" face=\"Open Sans, sans-serif\" size=\"3\"><b>The interim order that was granted by this court permitting the petitioners to cast their votes in the election to the post of president has merged with the final order dis-missing the writ petition as withdrawn. In view of the ratio laid down by the Hon’ble Apex Court in the aforesaid decisions, the respondent No.5, who was the defeated candidate having lost the election by one vote has suffered an impoverishment which he would not have suffered but for the interim order passed by this Court. It is the duty of this court to put the Respondent No.5 in the same position he would have been but for the interim order granted by this court . The returned candidate who was the beneficiary of the interim order has to relinquish the post to which he was elected by virtue of the interim order .</b></font></p><p style=\"text-align: justify; \"><font color=\"#212529\" face=\"Open Sans, sans-serif\" size=\"3\"><b>The votes casted by the petitioners in pursuance of the interim order granted by this Court having been invali-dated in view of withdrawal of the writ petition and the fifth respondent having lost the election by one vote has to be declared as a returned candidate in the light of the deci-sions of the Apex Court in the case of Karnataka Earth and State of U.P. (supra). Accordingly, I pass the following:</b></font></p><p style=\"text-align: justify; \"><font color=\"#212529\" face=\"Open Sans, sans-serif\" size=\"3\"><b>ORDER</b></font></p><p style=\"text-align: justify; \"><font color=\"#212529\" face=\"Open Sans, sans-serif\" size=\"3\"><b>I.A. No.9/2022 is allowed. The fifth respondent is de-clared as the elected president of the third respondent i.e. Malur Town Municipal Council, in the election that was held on 30.12.2021. The respondent Nos.2 to 4 are hereby di-rected to issue necessary notification declaring the fifth re-spondent as duly elected President of Malur Town Municipal Council after nullifying the election of A.Anitha Nagaraj, W/o Nagaraj, as President of the Malur Town Municipal Council. The said exercise shall be completed within two weeks from the date of uploading of the order in the High Court Website.</b></font></p>', 'f25f06637e5ae3c5adf1498c8c8ab7e3.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-13', 1, '', '', '2022-07-12 03:46:59', '2022-07-13 12:15:38'),
(1945, 'm9J93oCwUgJUQqMeLgTUQEZ1y', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Existence of debt and default by Corporate Debtor in payment of the debt would not automatically result in admission of the petition by the NCLT under Section 7 of the IBC. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vidarbha Industries Power Limited Vs Axis Bank Limited.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4633 of 2021 decided on 12 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Indira Banerjee and Justice J.K. Maheshwari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This appeal under Section 62 of the Insolvency and Bankruptcy\r\nCode 2016, hereinafter referred to as the ‘IBC’, is against a judgment\r\nand order dated 2nd March 2021 passed by the National Company Law\r\nAppellate Tribunal (NCLAT), New Delhi in Company Appeal (AT)\r\n(Insolvency) No.117 of 2021 whereby the learned Tribunal refused to\r\nstay the proceedings initiated by the Respondent, Axis Bank Limited\r\nagainst the Appellant for initiation of the Corporate Insolvency\r\nResolution Process (CIRP) under Section 7 of the IBC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The Appellant is a Generating Company within the meaning of\r\nSection 2(28) of the Electricity Act, 2003 and has set up a 600 MW <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Coal-fired Thermal Power Plant comprising of two units each of 300\r\nMW capacity, within the Butibori Industrial Area in the Nagpur District\r\nin Maharashtra.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3. Under the Electricity Act, 2003, and the Rules and Regulations\r\nframed thereunder, the business of Electricity Generating Companies\r\nis regulated and controlled by the State Electricity Regulatory\r\nCommission constituted under the said Act. Under Sections 61 to 63\r\nof the Electricity Act, the State Electricity Regulatory Commission\r\ndetermines the tariff chargeable by Electricity Generating Companies.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n4. Through an international competitive bidding process\r\nconducted by the Maharashtra Industrial Development Corporation\r\n(MIDC), the Appellant was awarded the contract for implementation of\r\na Group Power Project (GPP). The GPP was later converted into an\r\nIndependent Power Project (IPP).\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>5. The Appellant was later permitted to expand the capacity of its\r\npower plant by adding a second unit of 300 MW as an IPP. By an\r\norder dated 20th February 2013, the Maharashtra Electricity\r\nRegulatory Commission, hereinafter referred to as “MERC”, approved\r\na Power Procurement Agreement between the Appellant and Reliance\r\nIndustries Limited (RIL) subject to No Objection Certificate (NOC) of\r\nMIDC. MIDC granted its NOC to the Power Project Agreement.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. On 21st June 2013, the Cabinet Committee on Economic Affairs\r\n(CCEA) amended the New Coal Distribution Policy 2007, pursuant to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which the Ministry of Coal (MOC) issued an order on 17th July 2013\r\ndirecting Coal India Limited (CIL) to sign Fuel Supply Agreements\r\n(FSA) with Power Projects with an aggregate capacity of 78,000 MW.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. On 19th July 2013, the MERC granted approval to RIL to procure\r\npower from the Appellant’s Unit 1. Accordingly, a consolidated Power\r\nPurchase Agreement was executed on 14th August 2013 between the\r\nAppellant and RIL under which the Appellant agreed to supply and RIL\r\nagreed to purchase, power generated from both units of the\r\nAppellant’s Power Plant.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. Mr. Jaideep Gupta, Senior Advocate appearing on behalf of the\r\nAppellant submitted that the Appellant had applied for stay of the\r\nproceedings before NCLT, Mumbai in extraordinary circumstances,\r\nwhere the Appellant had not been able to pay the dues of the\r\nRespondent, only because an appeal filed by MERC, being Appeal\r\nNo.372 of 2017, against an order dated 3rd November 2016 passed by\r\nAPTEL in favour of the Appellant, was pending in this Court. Since the\r\naforesaid appeal is pending in this Court, the Appellant is unable to\r\nrealize a sum of Rs.1,730 Crores, which is due and payable to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Appellant, in terms of the order of APTEL.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>25. Mr. Gupta submitted that considering the special nature of the\r\nbusiness of the Appellant of production of electricity, tariff whereof is\r\nregulated by MERC and APTEL, the application under Section 7 of the\r\nIBC should not have been admitted against the Appellant.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>26. Mr. Gupta, referred to Section 7(5)(a) of the IBC which provides\r\nthat where the Adjudicating Authority is satisfied that a default has\r\noccurred, and the application under sub-Section (2) is complete, and\r\nthere is no disciplinary proceeding pending against the proposed\r\nResolution Professional, it may by order, admit such application.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>27. Mr. Gupta submitted that a bare perusal of the aforesaid\r\nprovision shows that the word used in Section 7(5)(a) of the IBC is\r\n‘may’, which must be interpreted to say that it is not mandatory for\r\nthe NCLT to admit an application in each and every case, where there\r\nis existence of a debt.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>28. Mr. Gupta argued that discretion conferred by Section 7(5) (a) of\r\nthe IBC enables NCLT to reject an application, even if there is\r\nexistence of debt, for any reason that the NCLT may deem fit, for\r\nmeeting the ends of justice and to achieve the overall objective of the\r\nIBC, which is revival of the company and value maximization. Mr.\r\nGupta argued that if legislature had intended that an application must\r\nbe admitted upon existence of a debt, then the terminology used in\r\nSection 7(5)(a) of IBC would have been ‘shall’ and not ‘may’.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30. Mr. Gupta submitted that a conjoint reading of Section 7(5)(a) of\r\nthe IBC with Rule 11 of the Rules makes it abundantly clear that NCLT,\r\non examining the existence of debt and its default, by a Corporate\r\nDebtor, has the discretion to admit or not admit an application for\r\ninitiation of CIRP. It cannot be said that NCLT has no power, except to\r\nexamine whether a debt exists or not and accordingly accept or reject\r\nthe application under Section 7 of the IBC.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>42. Mr. Mehta argued that in this case, there was no dispute that\r\nthe Appellant had defaulted in payment of its dues to the Respondent\r\nFinancial Creditor. The Adjudicating Authority was obliged to admit\r\nthe application under Section 7 of the IBC in terms of Section 7(5)(a)\r\nof the IBC. There are no grounds to interfere with the concurrent\r\nfindings of the NCLT and the NCLAT.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>43. Mr. Mehta also relied on the judgment of this Court in\r\nInnoventive Industries Ltd. v. ICICI Bank and Another\r\n3\r\nto argue\r\nthat the object of the IBC was to provide a framework for expeditious\r\nand time bound insolvency resolution. Section 7(5)(a) of the IBC had,\r\ntherefore, necessarily to be construed as mandatory in the light of the\r\nobjects of the IBC.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>44. The IBC has been enacted for reasonably expeditious, time\r\nbound insolvency resolution of, inter alia, corporate bodies as\r\nobserved by this Court in Swiss Ribbons (supra). As observed by\r\nthis Court in Swiss Ribbons (supra) timely resolution of a Corporate\r\nDebtor, who is in the red, by an effective legal framework and\r\nprocess, would go a long way to support the development of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">credit market</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>46. Prior to enactment of the IBC, there was no single law in India\r\nthat dealt with insolvency and bankruptcy. Provisions relating to\r\ninsolvency and bankruptcy for companies could be found in the Sick\r\nIndustrial Companies (Special Provisions) Act, 1985, the Recovery of\r\nDebts Due to Banks and Financial Institutions Act, 1993, the\r\nSecuritisation and Reconstruction of Financial Assets and Enforcement\r\nof Security Interest Act, 2002, and the Companies Act, 2013. These\r\nstatutes provided for creation of multiple fora such as Board of\r\nIndustrial and Financial Reconstruction (BIFR), Debts Recovery\r\nTribunal (DRT) and National Company Law Tribunal (NCLT) and their\r\nrespective Appellate Tribunals. Liquidation of companies was handled\r\nby the High Courts.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>47. The framework that had existed for insolvency and bankruptcy\r\nwas inadequate, ineffective and resulted in undue delay. After a lot of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">deliberation and discussion and pursuant to reports of various\r\ncommittees including, in particular, the Bankruptcy Law Reforms\r\nCommittee (BLRC), the IBC has been enacted to provide an effective\r\nlegal framework for timely resolution of insolvency and bankruptcy.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>61. In our view, the Appellate Authority (NCLAT) erred in holding\r\nthat the Adjudicating Authority (NCLT) was only required to see\r\nwhether there had been a debt and the Corporate Debtor had\r\ndefaulted in making repayment of the debt, and that these two\r\naspects, if satisfied, would trigger the CIRP. The existence of a\r\nfinancial debt and default in payment thereof only gave the financial\r\ncreditor the right to apply for initiation of CIRP. The Adjudicating\r\nAuthority (NCLT) was require to apply its mind to relevant factors\r\nincluding the feasibility of initiation of CIRP, against an electricity\r\ngenerating company operated under statutory control, the impact of\r\nMERC’s appeal, pending in this Court, order of APTEL referred to\r\nabove and the over all financial health and viability of the Corporate\r\nDebtor under its existing management. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>78. The Legislature has consciously differentiated between Financial\r\nCreditors and Operational Creditors, as there is an innate difference\r\nbetween Financial Creditors, in the business of investment and\r\nfinancing, and Operational Creditors in the business of supply of\r\ngoods and services. Financial credit is usually secured and of much\r\nlonger duration. Such credits, which are often long term credits, on\r\nwhich the operation of the Corporate Debtor depends, cannot be\r\nequated to operational debts which are usually unsecured, of a\r\nshorter duration and of lesser amount. The financial strength and\r\nnature of business of a Financial Creditor cannot be compared with <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that of an Operational Creditor, engaged in supply of goods and\r\nservices. The impact of the non-payment of admitted dues could be\r\nfar more serious on an Operational Creditor than on a financial\r\ncreditor.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>79. As observed above, the financial strength and nature of\r\nbusiness of Financial Creditors and Operational Creditors being\r\ndifferent, as also the tenor and terms of agreements/contracts with\r\nfinancial creditors and operational creditors, the provisions in the IBC\r\nrelating to commencement of CIRP at the behest of an Operational\r\nCreditor, whose dues are undisputed, are rigid and inflexible. If dues\r\nare admitted as against the Operational Creditor, the Corporate\r\nDebtor must pay the same. If it does not, CIRP must be commenced.\r\nIn the case of a financial debt, there is a little more flexibility. The\r\nAdjudicating Authority (NCLT) has been conferred the discretion to\r\nadmit the application of the Financial Creditor. If facts and\r\ncircumstances so warrant, the Adjudicating Authority can keep the\r\nadmission in abeyance or even reject the application. Of course, in\r\ncase of rejection of an application, the Financial Creditor is not\r\ndenuded of the right to apply afresh for initiation of CIRP, if its dues\r\ncontinue to remain unpaid.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">80. The IBC, as observed above, is intended to consolidate and\r\namend the laws with a view to reorganize Corporate Debtors and\r\nresolve insolvency in a time bound manner for maximization of the\r\nvalue of the assets of the Corporate Debtor.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>81. The title “Insolvency and Bankruptcy Code” makes it amply\r\nclear that the statute deals with and/or tackles insolvency and\r\nbankruptcy. It is certainly not the object of the IBC to penalize solvent\r\ncompanies, temporarily defaulting in repayment of its financial debts,\r\nby initiation of CIRP. Section 7(5)(a) of the IBC, therefore, confers\r\ndiscretionary power on the Adjudicating Authority (NCLT) to admit an\r\napplication of a Financial Creditor under Section 7 of the IBC for\r\ninitiation of CIRP.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>82. The Adjudicating Authority (NCLT) failed to appreciate that the\r\nquestion of time bound initiation and completion of CIRP could only\r\narise if the companies were bankrupt or insolvent and not otherwise.\r\nMoreover the timeline starts ticking only from the date of admission\r\nof the application for initiation of CIRP and not from the date of filing\r\nthe same.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>88. The Adjudicating Authority (NCLT) has to consider the grounds\r\nmade out by the Corporate Debtor against admission, on its own\r\nmerits. For example when admission is opposed on the ground of\r\nexistence of an award or a decree in favour of the Corporate Debtor,\r\nand the Awarded/decretal amount exceeds the amount of the debt,\r\nthe Adjudicating Authority would have to exercise its discretion under\r\nSection 7(5)(a) of the IBC to keep the admission of the application of\r\nthe Financial Creditor in abeyance, unless there is good reason not to\r\ndo so. The Adjudicating Authority may, for example, admit the\r\napplication of the Financial Creditor, notwithstanding any award or\r\ndecree, if the Award/Decretal amount is incapable of realisation. The\r\nexample is only illustrative.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>89. In this case, the Adjudicating Authority (NCLT) has simply\r\nbrushed aside the case of the Appellant that an amount of Rs.1,730\r\nCrores was realizable by the Appellant in terms of the order passed by\r\nAPTEL in favour of the Appellant, with the cursory observation that\r\ndisputes if any between the Appellant and the recipient of electricity <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">or between the Appellant and the Electricity Regulatory Commission\r\nwere inconsequential.\r\n90. We are clearly of the view that the Adjudicating Authority\r\n(NCLT) as also the Appellate Tribunal (NCLAT) fell in error in holding\r\nthat once it was found that a debt existed and a Corporate Debtor\r\nwas in default in payment of the debt there would be no option to the\r\nAdjudicating Authority (NCLT) but to admit the petition under Section\r\n7 of the IBC.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>91. For the reasons discussed above, the appeal is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ca358cc2c50cf5fe7f8ed505794b16fb.jpg', 'b29cde986782134e97a5eaa418f46139.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-14', 1, '', '', '2022-07-14 01:06:27', '2022-07-14 08:20:28');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1935, 'ziJPUxLPdfmgX8AH8izpBBrmN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'IPC. Section 304B. Wife committing suicide even after two years of leaving the matrimonial house can in certain circumstances come within the meaning of ‘soon before death’ since it would be a matter of evidence. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Niranjan Hegde Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 5657 of 2022 decided on 8 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner calls in question registration of a crime in Crime No.139 of 2022 for offences punishable under Sections 304B, 313 and 498A of the IPC.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:- The petitioner is the husband of one S.V.Raksha, who dies committing suicide. The complainant/2nd respondent is her father and father-in-law of the petitioner. Marriage between the petitioner and S.V.Raksha takes place on 11-12-2017 at Chikmagalur. The same came to be registered on a later date. It is the case of the petitioner that relationship between the wife and the husband did not go well immediately after marriage and they had serious compatibility issues between them. When incompatibility became inevitable, the daughter of the complainant appears to have left the matrimonial home and began to reside with her parents at Bangalore. All efforts of reconciliation which were on for over two years are said to have failed. On the score of irreconcilable incompatibility both the petitioner and the daughter of the complainant filed an application for divorce under Section 13B of the Hindu Marriage Act, by mutual consent, in M.C.No.2415 of 2022.  An application is also filed for waiver of 6 months period for separation by mutual consent. During the pendency of the said petition before the Family Court, it transpires, on the morning of 13-06-2022 when the petitioner was at Mysore, he received a call from his mother-in-law that their daughter had committed suicide by hanging herself in the bed room of the parental house and a report of suicide was made before the jurisdictional police. On the said incident, a complaint came to be registered by the complainant which becomes a crime in Crime No.139 of 2022 for offences punishable under Sections 304B, 313 and 498A of the IPC. It is this registration of crime that drives the petitioner/husband to this Court.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The learned counsel Sri Arun Govindaraj, appearing for the petitioner would contend with vehemence, that a strained relationship between the husband and the wife for over two years has led the daughter of the complainant to leave the matrimonial house and reside in her parents’ house. The family of the complainant also has a problem amongst themselves, as there were several communications between the deceased and brother of the deceased with regard to the behavior of the deceased towards the family of the petitioner or petitioner himself. He would submit that ingredients of Section 304B of the IPC are not satisfied even to the remotest sense, as the ingredients should be of such harassment for demand of dowry that would lead to the death of the deceased/wife. That not being in place, he would seek quashment of entire proceedings and would place reliance upon the judgment of the Apex Court in the case of SURESH KUMAR SINGH v. STATE OF UTTAR PRADESH – (2009) 17 SCC 243. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. On the other hand, the learned counsel appearing for the 2nd respondent/complainant Sri M.R.C.Manohar, would vehemently refute the submissions to contend that the death has occurred only 15 days ago and the case is registered on 13.06.2022. The investigation is still on. At this stage, what is to be looked into is only whether prima facie the complaint satisfies the ingredients of Section 304B of the IPC. He would further submit that there are other offences alleged under Sections 313 and 498A of the IPC which are all cognizable. He would place reliance upon the judgment of the Apex Court in the cases of DINESHBHAI CHANDUBHAI PATEL v. STATE OF GUJARAT AND OTHERS – (2018) 3 SCC 104, KAPTAN SINGH v. STATE OF UTTAR PRADESH AND OTHERS – (2021) 9 SCC 35 and NEEHARIKA INFRASTRUCTURE PRIVATE LIMIED v. STATE OF MAHARASHTRA AND OTHERS – 2021 SCC OnLine SC 315. On the strength of the submissions and the judgments relied on, the learned counsel seeks dismissal of the criminal petition.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. The learned High Court Government Pleader would toe the lines of the learned counsel appearing for the 2nd respondent to contend that investigation material and Section 164 Cr.P.C. statement would lead to the crime against the petitioner and, therefore it is a matter of trial for the petitioner to come out clean.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>9. The marriage between the petitioner and the daughter of the complainant who is now dead is not in dispute. The contention of strained relationship between the petitioner and the deceased is also borne out from the records. The complaint itself narrates that the deceased had left the matrimonial house and was residing at her parental house. <i>Whether this can be enough circumstance to drive home any of the allegations under Sections 304B, 498A or Section 313 of the IPC is what falls for consideration at this juncture in the case at hand?</i> The daughter of the complainant commits suicide on 12-06-2022. The complainant on 13-06-2022 registers the complaint / report of death before Sanjay Nagar Police Station, Bangalore<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>A perusal at the complaint registered on 14-06-2022 would indicate circumstances which would touch upon the ingredients of the offence, as the father narrates on 12-06-2022 the petitioner and the deceased were in long conversation and after the conversation it is the narration in the complaint that the daughter was in deep mental stress and tears. The complaint also narrates that when the daughter was pregnant in the year 2019, the petitioner husband takes her to a hospital and gets forcible abortion to her. The complaint also narrates transfer of certain money at intermittent intervals to the son-in-law. In the teeth of this complaint, it is germane to notice the allegations made qua the offences punishable under the IPC.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Section 304B of the IPC directs that when a death of a woman is caused by burns or bodily injury or otherwise occurs under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty by her husband or any relative of her husband in connection with any demand for dowry, such death shall be called ‘dowry death’ and such husband or relative shall be deemed to have caused her death.  The daughter of the complainant commits suicide on the night of 12-06-2022. The complaint narrates that on the night of 12-06-2022 just before the fateful incident she was in conversation with her husband. Whether the conversation with the husband before her death has led to commission of suicide or it was collective harassment for years that has exploded in the said commission of suicide is a matter to be necessarily tried, as prima facie the complaint narrates such instances which could become ingredients of Section 304B of the IPC.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 10. The learned counsel appearing for the respondent No.2 has placed on record the transactions between the account of the father of the deceased and the son-in-law which narrates certain amounts being transferred intermittently. So are the amounts transferred from the account of the husband/petitioner to his wife. But, nonetheless from the father-in-law, there are transfers of amounts to the son-in-law. The quantum of amount is not the issue, but the transfer of amounts would require evidence as to whether it was demand of dowry or otherwise. The phrase ‘soon before’ as obtaining under Section 304B IPC has been interpreted by the Apex Court while interpreting Section 304B of the IPC. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. The Apex Court also considers Section 113B of the Evidence Act, 1872 wherein the presumption as to dowry death is against the accused unless otherwise proved. The Apex Court also interprets the phrase ‘soon before’ as obtaining in Section 304B of the IPC. The Apex Court in a later judgment in the case of STATE OF MADHYA PRADESH v. JOGENDRA AND ANOTHER3 has again interpreted the phrase ‘soon before’ as not to be synonymous of the phrase ‘immediately before’. Any limited interpretation given to the word ‘soon before’ will defeat the very spirit of the statute itself<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>In the light of the contention of the learned counsel appearing for the petitioner that ingredients of Section 304B of the IPC are not satisfied in the case at hand is unacceptable. The contention is that it should be ‘soon before death’ and soon before death is required to be interpreted as ‘immediately before death’ and the deceased leaving matrimonial house two years ago would not mean immediately before death, are all repellable, as it is too far-fetched to be considered at this juncture. The FIR is registered for offences punishable under Section 304B of the IPC along with other offences. The complaint and the narration prima -facie indicate ingredients of Section 304B of the IPC. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">12.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">The other offence that is laid is, Section 313 of the IPC which is forcible abortion. The complaint narrates that pregnancy of the daughter was forcibly aborted by the husband in the year 2019 before she left the matrimonial house. Section 498A of the IPC is invoked on the allegation of demand for dowry </span><font face=\"Calibri, sans-serif\">and transfer of money. The complaint narrates the incidents and there are documents placed now to indicate the funds being transferred from the father-in-law to the son-in-law. Therefore, prima facie, ingredients of all offences are met for registration of the crime and conduct of investigation. </font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13. The learned High Court Government Pleader has placed on record investigation papers which would be a vindication of the stand of the learned counsel for the respondent No.2. Any observation made with regard to the statements recorded during the investigation would prejudice the case of the petitioner or his defense that he has to take in further proceedings. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">14. The submission of the learned counsel appearing for the petitioner, by producing chats of i-message, facebook or whatsapp, to buttress his submission that there was dispute in the family of the complainant itself and that might have led to commission of suicide by the daughter of the complainant, is again a matter of trial.  The matter with such serious offence as could be gathered from available documents on record cannot be interjected at this juncture, as there are undoubtedly plethora of seriously disputed questions of fact. The primary ingredient of death happening before 7 years of marriage exists in the case at hand, as the couple got married in the year 2017 and the daughter of the complainant commits suicide on 12-06-2022. What has driven the daughter to commit suicide either cruelty or demand of dowry, is to be thrashed out in a full blown trial.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>The Apex Court holds that in an offence under Section 304B of the IPC, on reading of the complaint and the materials that are available, no case was made out to quash the entire proceedings by rejecting the contention of the complainant. The case at hand is also one such, where the complainant has placed on record such material that would demand further proceedings to be continued against the petitioner and the petitioner has not placed on record any document that is so unimpeachable and of sterling quality which would entail quashment of entire proceedings at the stage of registration of FIR itself.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>16. In the light of the facts obtaining in the case at hand and existence of seriously disputed questions of fact which have to be thrashed out only in a full blown trial, finding no ground to interject or interfere with further proceedings, the Criminal Petition lacking in merit, meets its dismissal, and is consequently dismissed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of the petitioner under Section 482 of Cr.P.C. and the same shall not bind or influence the investigation or any further proceedings before any judicial fora. Consequently, I.A.No.2/2022 also stands disposed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '881a472768bf511f379837a72758b05f.JPG', 'cbb70fd0826eb16eccd74cec3ce3228e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-12', 1, '', '', '2022-07-12 17:10:11', '2022-07-13 00:07:50'),
(1936, 'hfwGdD5khxdFlfw35BxXf5ZRu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. If the complainant himself is not in possession of the property, question of criminal trespass does not arise. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shivaswamy Sombayya and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 2776 of 2022 decided on 8 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioners are before this Court calling in question proceedings in C.C.No.5835 of 2019 pending before the VII Additional Chief Metropolitan Magistrate, Bangalore arising out of Crime No.163 of 2018 registered for offences punishable under Sections 143, 427, 447, 448, 506 and 149 of the IPC.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Brief facts, as projected by the prosecution, are as follows:- The 2nd respondent is the complainant. On 01-08-2018 the complainant registers a complaint before the Kodigehalli Police Station that on 13-01-2018 at about 9-00 a.m. the petitioners/ accused have allegedly trespassed into her house, threatened her tenants to vacate the house, caused loss by disconnecting electricity. It is further alleged that the accused even have trespassed into houses belonging to others. Based upon the said complaint, a criminal case came to be registered in Crime No.163 of 2018 for offences punishable under Sections 143, 427, 447, 448, 506 and 149 of the IPC. The police, on conduct and completion of investigation, filed a charge sheet against the petitioners for the aforesaid offence in C.C.No.5835 of 2019. On filing of the charge sheet and cognizance being taken by the learned Magistrate, the petitioners have knocked the doors of this Court in the subject petition. This Court, by its order dated 19-04-2022, has granted an interim order of stay of all further proceedings against the petitioners and the proceedings have since then not proceeded further. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. The learned counsel appearing for the petitioners would contend that the issue in the case at hand is purely civil in nature, the complainant is trying to arm twist the petitioners for having lost all the litigations concerning the property. The learned counsel would further submit that the incident, according to the complaint, had taken place on 13-01-2018 but the complaint is registered after about seven months on 2-08-2018. If trespass, intimidation or any other offence that is alleged had happened on 13-01-2018 nothing stopped the complainant from registering the crime immediately, but is registered after 7 months. This fact would be enough circumstance to demonstrate mala fide action on the part of the complainant in registering the complaint. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. On the other hand, the learned counsel representing the 2nd respondent/complainant would seek to refute the submissions to contend that the complainant is in possession of the property and the petitioners had sought to trespass into the property and destroyed belongings of all the persons who are on rent in the property belonging to the complainant. However, he would accept the  fact  of  registering  the  complaint  after  seven  months  and attributes the said delay for following up in the civil proceedings that were pending between the parties. He would seek that it is a matter of trial in which the petitioners will have to come out clean.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. The allegation of the complainant in the complaint registered on 02-08-2018 is that the petitioners seven months ago trespassed into the property and created ruckus, took away the belongings and have intimidated the tenants residing in the property allegedly belonging to the complainant. It is the case of the petitioners that the land in Sy.No.11 of Kodigehalli Village Yelahanka Hobli, Bangalore North Taluk was acquired by the Bangalore Development Authority (‘BDA’ for short) by issuance of preliminary notification on 3-01-1985 and later a final notification on 25-09-1986 for the benefit of NTI Housing Co-operative Society. The  1st  petitioner  by  way  of  a  registered  sale  deed  dated 14-03-2013 purchased the said property from the Society and later got all the revenue records mutated into his name. Likewise, all the petitioners have purchased their portions of property on different dates by way of registered sale deeds and are in possession of the property and residing in the said addresses. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. It is a matter of record that the complainant along with one Channabasanagouda Polis Patil and others challenged the aforesaid acquisition made in the year 1986 before this Court in Writ Petition No.4470 of 2019. This Court by its order dated 2.02.2022 dismissed the claim of the complainant and another by clearly holding that possession was handed over to the Society on 25-10-2003 after the BDA taking over possession on 13-06-2002.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. In the teeth of the claim of the complainant, and the order passed by this Court, it is germane to notice the complaint that is registered by the complainant. The complaint is registered on 02.08.2018 for an incident that has happened seven months ago i.e., on 13-01-2018 at 9.00 a.m. The narration in the complaint clearly indicates that there are civil proceedings pending between the parties in O.S.No.403 of 2018 to 407 of 2018.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11... Section 447 which deals with criminal trespass hinges upon the complainant being in possession of the property, as one can trespass a property not belonging to the accused but belonging to the complainant and cause mischief or damage under Section 427 of the IPC. Therefore, Section 447 of the IPC which directs punishment for criminal trespass has in itself, a civil flavour. Therefore, Section 447 as defined under Section 441 of the IPC is an interplay between a civil right and a crime.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. If possession is not with the complainant, she can hardly contend that the accused have trespassed into the property of the complainant. Her possession in the case at hand is determined by this Court in the aforesaid writ petition while observing that the BDA had already acquired the property for a particular purpose in the year 1986 and the complainant being in possession was not accepted. Civil cases are also pending against each other. Therefore, if the complainant is not in possession of the property, there can be no allegation of criminal trespass into such property, in which accused themselves are in possession. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. Criminal trespass as obtaining under Section 447 of the IPC and defined under Section 441 of the IPC can be committed only when a person enters into or upon any property, which is in possession of another with intent to commit an offence or intimidate, insult or annoy any person in possession of such property. If possession itself is not with the complainant as is held by this Court (supra), there can be no offence of criminal trespass into the property not belonging to the complainant. If there is no criminal trespass into the property, causing damage under Section 427 of the IPC, by way of mischief of destruction of property also cannot be alleged, as they are inseparable, in the peculiar facts of this case.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 14. The contention of the learned counsel appearing for respondent No.2 that respondent No.2 is in possession of the property holds no water, in the light of the finding rendered by the Co-ordinate Bench of this Court albeit in a different proceeding. The other ground that the 2nd respondent would urge is that the criminal petition is preferred after 3 years after registration of the crime and the petition should be dismissed on account of delay. This statement is noted only to be repelled, as delay in every case would not disentitle the accused for a relief if it is available in law and this Court at its discretion, in exercise of its power under Section 482 of the Cr.P.C., to prevent miscarriage of justice, can interfere despite delay, in a given case. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. The judgments relied on by the learned counsel for the 2nd respondent in the case of PRITI SARAF AND ANOTHER v. STATE OF NCT OF DELHI & ANOTHER – 2021 SCC Online 206 and in the case of SAU.KAMAL SHIVAJI POKARNEKAR v. THE STATE OF MAHARASHTRA AND OTHERS – (2019) 14 SCC 350 are of no avail as they are inapplicable to the facts of the case at hand. PRITI SARAF was concerning offences punishable under Sections 406 and 420 of the IPC. The finding of the Apex Court therein was inducement and criminal breach trust was writ large in the facts of that case. The Apex Court holds that merely because the matter is civil in nature or civil proceedings are pending, the Court should not quash the proceedings. The same goes with the case of KAMAL SHIVAJI POKARNEKAR (supra) which would also direct that merely because civil proceedings are pending, the same should not be quashed if the complaint discloses prima facie offence. There again, the offences were of forgery and using a forged document to gain benefit. It is considering those offences qua the facts obtaining in those cases the Apex Court holds that jurisdiction under Section 482 of the Cr.P.C. ought not to have been exercised. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. The facts obtaining in the case at hand are clearly different from the facts obtaining before the Apex Court. The case at hand is for offence under Section 447 of the IPC, for which the most relevant factor would be exclusive possession of the property, on which the accused is alleged to have trespassed. If exclusive possession is not with the complainant, the complaint of criminal trespass into the property and damage to that property under Section  427  of  the  IPC  can  hardly  be  alleged,  as  observed hereinabove. The petitioners have also placed abundant material by way of documents that are unimpeachable and of sterling quality, which would undoubtedly overpower the documents and submissions of the learned counsel appearing for the respondent No.2. If Sections 427 and 447 of the IPC cannot be seen to be present in the case at hand, the other offences for the ones punishable under Sections 448, 506 and even 143 of the IPC can hardly be alleged, as Section 447 deals with criminal trespass into a property. Section 448 makes house trespass a punishment and Section 427 damage to the property by way of mischief. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17. If the possession of the property itself is in doubt, driving home the offences beyond all reasonable doubt, would without doubt become doubtful. On such a premise, if further proceedings are permitted to continue against the petitioners, notwithstanding the fact that charge sheet has been filed by the Police, would become an abuse of the process of law and result in miscarriage of justice.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Criminal Petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f0526a93c40d1d297b4ec8824a298f86.JPG', '10718909324fd0fd184ba8796c596d76.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-13', 1, '', '', '2022-07-12 17:37:09', '2022-07-13 03:22:41');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1937, 'L4veP5rUnsvWoCoNLlinSbyS9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Assigned copyright to remake/dub a movie in a particular language is not violated if the movie is remade in a different language and then dubbed to the particular language. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>JA Entertainment Pvt Ltd Vs Sithara Entertainment and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CS (COMM) 191 of 2022 decided on 11 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Jyoti Singh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">1. Present suit has been filed by the Plaintiff seeking permanent\r\ninjunction restraining Defendants No. 1 and 2 and all others acting on their\r\nbehalf from making, producing, exhibiting or communicating to the public </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the suit film (as described hereinafter) or any part thereof in any manner,\r\nincluding but not limited to theatres, television, OTT platforms, etc.,so as to\r\ninfringe Plaintiff’s copyright in respect of Remake and Dubbing Rights of\r\nthe Malayalam film in Hindi language.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>2. Case of the Plaintiff as set out in the plaint is that in or around March,\r\n2020, Plaintiff’s creative team came across a Malayalam film ‘Ayyappanum\r\nKozhiyum’, which was released on 07.02.2020 and was a huge success\r\ncommercially. Plaintiff decided to remake the film in Hindi language and\r\nbeing a commercially lucrative venture, Plaintiff approached the producer of\r\nthe film, i.e., Defendant No. 3 and Late Kovakattu (Defendant No. 4 herein\r\nis the wife of Late Kovakattu) and sought assignment of Hindi Remake\r\nRights in the Malayalam film.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. Pursuant to negotiations, an Assignment Agreement was executed on\r\n13.05.2020, between Plaintiff and Defendant No. 3 and Late Kovakattu,\r\nunder which Hindi Remake Rights in the Malayalam film were assigned to\r\nthe Plaintiff. It is averred that under the said Agreement, Plaintiff was\r\nassigned the exclusive, perpetual and irrevocable ‘Remake and Dubbing’\r\nrights, to be exercised in all modes, mediums and formats. The rights\r\nassigned, to the extent relevant for the present case included: (a) the sole\r\nright to make a new cinematograph film based on the Malayalam film in\r\nHindi language; (b) right to dub the Malayalam film as well as the Hindi\r\nremake in any or all languages; and (c) right to subtitle in any language for\r\nany purpose through any media. Around July, 2020 Plaintiff commenced\r\npre-production of the Hindi Remake in accordance with rights granted under\r\nthe Agreement dated 13.05.2020.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. On or around 04.03.2022, Plaintiff came across a trailer of a Telugu\r\nfilm on YouTube titled ‘Bheemla Nayak’ (hereinafter referred to as the ‘suit\r\nfilm’), dubbed in Hindi, though the release date was not announced. Since\r\nthis indicated a potential infringement of Plaintiff’s rights, Plaintiff\r\nimmediately enquired from Defendant No. 3 about the nature of rights\r\nassigned to Defendant No. 1, i.e.,the producer of the suit film. Defendant\r\nNo. 3, in response, clarified that only limited rights had been assigned to\r\nDefendant No. 1 to remake the Malayalam film in Telugu language and also\r\nsupplied a copy of Assignment Agreement dated 18.03.2020, executed\r\nbetween Defendant No. 3 and Defendant No. 1.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Plaintiff was categorically informed that Defendant No. 1 wanted to\r\nexpand the scope of rights under the Agreement dated 18.03.2020 and had\r\ncirculated an amended version of the Agreement to include clause 3, so as to\r\nacquire rights of dubbing beyond the Telugu language, but Defendant No. 3\r\nhad refused to execute an amended Agreement.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n6. However, on learning that exploitation rights of the suit film had been\r\nassigned to one Goldmine Telefilms Pvt. Ltd.,Plaintiff sent a Legal Notice\r\nhighlighting its rights and called upon Defendant No. 1 to cease and desist\r\nfrom releasing the suit film in theatres or through any other mode or\r\nmedium, as that would amount to infringement. On receiving a reply to the\r\nNotice from Defendant No. 1 stating that by virtue of being the producer of\r\nthe Telugu remake suit film, Defendant No. 1 was the copyright owner,\r\nPlaintiff had no option but to approach this Court. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The Malayalam film of which Defendants No. 3 and 4 are equal\r\nowners is a copyrighted work within the meaning of Section 13 of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Copyright Act, 1957 (hereinafter referred to as the ‘Act’) and they are thus\r\nentitled to exploit the copyright in a manner they deem fit. Exercising their\r\nrights, Defendant No. 3 and Late Kovakattu assigned certain rights in favour\r\nof the Plaintiff, which rights amongst others included the right to Remake\r\nand Dub the Malayalam film in Hindi language and were in the nature of\r\nlimited derivative/adaptation rights qua Hindi language.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>8. The rights assigned to Defendant No. 1 under the Agreement dated\r\n18.03.2020 were a separate set of limited derivative/adaptation rights in the\r\nMalayalam film which did not include Remaking and Dubbing rights in\r\nHindi language. The rights were restricted to Remaking and Dubbing the\r\nMalayalam film into Telugu language and subtitling in all languages. Thus,\r\nDefendant No. 1’s act of dubbing the suit film in Hindi language amounts to\r\ninfringement of Plaintiff’s copyright.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The suit film being a derivative work, admittedly derived from the\r\nMalayalam film and/or its underlying works will be protected by copyright\r\nonly to the extent provided under Section 14(1)(d) of the Act. Since the\r\nassignment in favour of Defendant No. 1 was only partial, Defendant No. 3\r\nremained the owner of the rights not assigned to Defendant No.1, by virtue\r\nof provisions of Section 18 of the Act. Reliance was placed on the\r\njudgments in The Wellington Cinema v. The Performing Right Society\r\nLtd., 1937 SCC OnLine Bom 14 and British Actors Film Company Ltd. &\r\nOrs. v. Glover, [1918] 1 K.B. 299. Once the rights accruing to Defendant\r\nNo. 1 are read in light of Sections 14 and 18 of the Act, it is clear that\r\nDefendant No.1 had no right to utilise the script of the Malayalam film for\r\nany purpose other than Remaking and/or Dubbing in Telugu language only.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. A bare perusal of the Assignment Agreement dated 18.03.2020,\r\nspecifically clauses 1, 2, 3 and 12, shows that the only right assigned was to\r\nRemake and Dub the film in Telugu and no other language and a\r\ncommercial understanding to a contract is the only way the effect of a\r\ncontract must be interpreted, as held in Bangalore Electricity Supply\r\nCompany Limited (BESCOM) v. E.S. Solar Power Private Limited and\r\nOthers, (2021) 6 SCC 718. The right to dub is a separate right under the\r\nbundle of rights forming a copyright in a work and it cannot be said that\r\nassignment of a right to remake a film would include right to dub the same\r\nin any language. Heavy reliance was placed on the Judgement in\r\nThiagarajan Kumararaja v. Capital Film Works (India) Pvt. Ltd. and\r\nAnother, 2017 SCC OnLine Mad 37588</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. Plaintiffs the owner of the right to remake the Malayalam film in\r\nHindi language under the Agreement dated 13.05.2020 and thus,Defendant\r\nNo.1’s act of remaking the Malayalam film into Telugu language and\r\nthereafter dubbing the same into Hindi language effectively amounts to\r\nremaking the Malayalam film into Hindi language and amounts to\r\ninfringement of Plaintiff’s copyright under the Act. Copyright is a right\r\nin rem and owner of a copyright in any work is entitled to defend the same\r\nagainst anyone who infringes that right, by virtue of provisions of Section 51\r\nof the Act.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. On a conjoint reading of Section 17 with Section 2(d)(v) and 2(f) of\r\nthe Act, it is explicit that owner of the copyright in the Telugu film will be\r\nits author i.e., the producer of the film, which is Defendant No. 1 and thus, it\r\nhas exclusive rights under Section 14(d) of the Act, which would include the\r\nright to communicate the film to the public under Section 14(d)(iii). Inherent\r\nin the right to communicate is the right to communicate by dubbing in all\r\nlanguages. This is clear from the observations of the Madras High Court in\r\nThiagarajan Kumararaja(supra). Owner of copyright in a cinematographic\r\nwork, inter alia, has a right to both subtitle and dub its work, though subject\r\nto any restrictive condition beingput by the parties concerned.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. Allegations of infringement of Plaintiff’s copyright are misplaced and\r\nbaseless. Defendant No. 1 has not dubbed the Malayalam film in Hindi\r\nlanguage and has only dubbed the remade suit film, under the exclusive right\r\nto do so by virtue of the Deed of Assignment. Under the Assignment Deed\r\ndated 13.05.2020, Plaintiff inter alia acquired the right to:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(a) remake the\r\nMalayalam film in Hindi;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(b) dub the Malayalam film or the remade Hindi\r\nfilm in any language;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(c)subtitle in any language; and</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(d) to remake as a\r\nseparate and independent work the cinematographic film as owner of\r\ncopyright by virtue of rights under Section 14(d) of the Act. Alleged\r\ninfringement would require to be tested on the anvil of these rights and when\r\nso examined it is crystal clear that dubbing the remade Telugu film in Hindi\r\ncannot even remotely amount to infringement of Plaintiff’s copyrights. The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">test of infringement is not the degree of similarity between Telugu film\r\ndubbed in Hindi and the Malayalam film dubbed in Hindi and, therefore, the\r\nquestion that is to be posed is whether dubbing the Telugu film in Hindi, in\r\norder to communicate it to the public, is an exclusive right of the Plaintiff. If\r\nthe answer is in the affirmative, Plaintiff may have a cause of action.\r\nClearly, no such right has been assigned to the Plaintiff and on the contrary,\r\nit is the exclusive right of Defendant No. 1 as producer of the Telugu film to\r\ndub the Telugu film in Hindi.In the absence of a right,Plaintiff can make no\r\nclaim of infringement against Defendant No.1.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n17. The suit film has a new name and star cast and is in a different\r\nlanguage, though the script is similar to the Malayalam film and thus the\r\ncopyrights of the respective films are distinct and constitute separate work.\r\nDeed of Assignment dated 18.03.2020sets out that the Assignors will have\r\nno rights over the remade film, produced and dubbed in Telugu language\r\nand subtitled in various languages, without geographical restrictions. There\r\nis nothing in the Agreement which prevents or restricts the right of\r\nDefendant No.1 from dubbing the suit film into a language of its choice,\r\nincluding Hindi. Defendants No. 3 and 4 cannot claim the right to dub the\r\nremade suit film into Hindi as they have expressly given up all rights in the\r\nTelugu film including the right to communicate by dubbing and Plaintiff\r\ncannot claim better rights than them. In any event, Plaintiff does not even\r\nclaim any relief for the remade Telugu film and admits in the reply to the\r\napplication being I.A. 6078/2022, filed by Defendant No. 2 that remade\r\nTelugu film has a completely new and different star cast and is based on reworked screenplay, dialogues, direction and music composition. Plaintiff has\r\nalso admitted in para 28 of the plaint that the Agreements dated 18.03.2020</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>38. Perusal of the above recitals would show that Defendant No. 3 being\r\nthe absolute owner of the original copyright of the story and producer of the\r\nMalayalam film, as an Assignor assigned to Defendant No. 1 the entire\r\nrights for Remaking and Dubbing the said film in Telugu language and\r\nsubtitling in all Indian and world languages. Additionally, Assignee was\r\ngiven the right to alter, delete, add, modify the story and screenplay of the\r\nMalayalam film in any manner to suit the convenience of the\r\nAssignee/Defendant No. 1. The Assignment Deed also reflects that the\r\nAssignors renouncedall their rights whatsoever over the film ‘produced’\r\nand dubbed in Telugu language and subtitled in all world languages, without\r\nany geographical restriction.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>40. It is explicit from a reading of the Deed of Assignment that the\r\nRemake and Dubbing rights assigned to the Plaintiff by Defendants No. 3\r\nand Late Kovakattu in the Malayalam film inter alia were to make a new\r\ncinematograph film based on the Malayalam film and the underlying works\r\nthereof (New Film) in Hindi language and the right to dub the Malayalam\r\nfilm in any and all languages known or coming into existence in the near <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">future (DubbedFilm). Plaintiff was also assigned the right to dub the New\r\nFilm in any language existing or coming into existence in future, which\r\nneedless to state included dubbing in Hindi language.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>41. As held by the Andhra Pradesh High Court in M/s. Sunder Pictures\r\n(supra) copyright in a work as envisaged in the Act consists of a number of\r\nrights and there can also be different assignees in respect of different rights.\r\nIn respect of any of the rights which may be assigned, assignee shall be\r\ntreated as owner of the copyright for the purpose of this Act. In Thiagarajan\r\nKumararaja (supra), the Division Bench held that the owner of a copyright\r\nin a cinematograph film will inter alia have the right to both subtitle and dub\r\nits work, subject to any restrictive condition being put by the parties.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>42. The primordial grievance of the Plaintiff is that Defendants No. 3 and\r\nLate Kovakattu while assigning the copyright to remake the Malayalam film\r\nin favour of Defendant No. 1, had restricted the remaking and dubbing to\r\nTelugu language and therefore this restrictive covenant prevents Defendant\r\nNo. 1 from dubbing the Telugu remake in Hindi. Therefore, according to the\r\nPlaintiff the act of dubbing the suit film in Hindi violates and infringes the\r\ncopyright of the Plaintiff </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">43. On a plain reading of the prayer clause, it is evident that Plaintiff\r\nseeks an injunction against Defendants No. 1 and 2 from making, producing,\r\nexhibiting or communicating to the public the suit film or any part thereof,\r\nin any manner, so as to infringe Plaintiff’s copyright in respect of ‘Remake\r\nand Dubbing rights’ of the Malayalam film in Hindi language as also ot her\r\nrights detailed in para 19(iv) of the plaint. Therefore, what is required to be\r\nseen is the Remake andDubbing rights that were assigned to the Plaintiff by\r\nDefendant No. 3 in the Malayalam film. The recitals of the Deed of\r\nAssignment dated 13.05.2020, as extracted above, prima facie show that the\r\n‘Remake and Dubbing rights’ inter alia included making a new\r\ncinematograph film and the underlying works thereof in Hindi language\r\nwith the right to dub the Malayalam film as well as the New Film in any and\r\nall languages known or coming into existence in the near future. Admittedly,\r\nthe Plaintiff was not assigned the right to remake the Malayalam film in\r\nTelugu language, which was a right assigned to Defendant No. 1 by\r\nDefendant No. 3. It is also not the case of the Plaintiff that Defendant No. 1\r\nis dubbing the Malayalam film in Hindi and at the cost of repetition it may\r\nbe noted that Plaintiff has no grievance with remaking of the Malayalam\r\nfilm in Telugu.Defendant No. 1, even according to the Plaintiff, is dubbing\r\nthe remade Telugu film in Hindi, which has triggered the present suit.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">44. Section 51 provides that a copyright in a work shall be deemed t o be\r\ninfringed when any person, without a license granted by the copyright owner\r\nor Registrar of Copyrights or in contravention of the licence conditions, does </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">anything, the exclusive right to do which is by the Act conferred upon the\r\nowner of the copyright. Simply put under Section 51 of the Act, a grievance\r\nwith respect to infringement of a copyright can arise only if the exclusive\r\nright to do an act conferred upon the copyright owner is infringed.\r\nTherefore, if Defendant No. 1 had remade the Malayalam film in Hindi\r\nlanguage or had dubbed the same in Hindi language, Plaintiff may have had\r\na cause of action for infringement. Beyond a doubt, the case of alleged\r\ninfringement would require to be tested within the four corners of the\r\nprovisions of Section 51 of the Act and the limited issue at this stage that\r\nrequires consideration would be the exclusive rights given to the Plaintiff\r\nunder the Deed of Assignment and to see if those rights are infringed.\r\nDubbing of the remade Telugu film into Hindi, in my prima facie view, does\r\nnot amount to infringement of the exclusive right of the Plaintiff to remake\r\nthe Malayalam film in Hindi language and to dub the New Film as well as\r\nthe Malayalam film in all languages.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>45. In light of the aforesaid, in my prima facie view, Defendants are right\r\nin their argument that the test of infringement in the present case is not the\r\ndegree of similarity between the Telugu film dubbed in Hindi and the\r\nMalayalam film dubbed in Hindi, but the test is whether dubbing the Telugu\r\nfilm in Hindi in order to communicate it to the public infringes on any\r\nexclusive right of the Plaintiff, which is not the case here. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>47. After hearing the parties extensively, in my prima facie opinion, none\r\nof the contentions raised by the Plaintiff at the time of grant of ex parte ad\r\ninterim injunction hold water in law. Plaintiff, no doubt, has a right to\r\nremake the Malayalam film in Hindi language as well as dub the same or the\r\nNew Film in any language, however, Defendant No. 1 has admittedly\r\ndubbed the remade Telugu film (suit film)in Hindi,which does not infringe\r\nthe Plaintiff’s right, applying the provisions of Section 51 of the Act. Insofar\r\nas the contention that the Deed of Assignment in favour of Defendant No. 1\r\nrestricts the right to dub the Malayalam film or its remake in Telugu\r\nlanguage only is concerned, as aforementioned, Defendant No. 1 is neither\r\nremaking nor dubbing the Malayalam film in Hindi language and Plaintiff\r\ncan have no grievance with the manner Defendant No.1 is exploiting its\r\nrights in the remade Telegu film.Even assuming for the sake of argument\r\nthat Defendant No. 1 is violating the terms of the Deed of Assignment\r\nexecuted with Defendant No. 3, in terms of dubbing the remade Telugu film\r\nin Hindi, it may at the highest give rise to a cause of action in favour of\r\nDefendant No. 3, who has not chosen to sue Defendant No. 1, but cannot be\r\nthe basis of an infringement action in favour of the Plaintiff.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>48. As far as the commercial viability of the proposed film of the Plaintiff\r\nis concerned, as rightly argued by the Defendants, this is a factor which is\r\nwholly irrelevant to the issue of alleged violations of the provisions of the\r\nCopyright Act, under which an action for infringement can only be\r\npredicated on existence of a copyright. Both sides have placed considerable\r\nreliance on the observations of the Division Bench in Thiagarajan\r\nKumararaja (supra), wherein the Court has essentially laid down that the\r\nproducer being the author of a cinematograph film has all the rights in the\r\nfilm as conferred under Section 14(d)(iii) of the Act, including the right to\r\ndub and subtitle, subject, however, to any restrictive condition(s) being put\r\nby the parties. In view of the aforesaid prima facie finding that Defendant\r\nNo. 1 is not infringing any exclusive right assigned to the Plaintiff by\r\nDefendant No. 3, this argument or the observation of the Division Bench at\r\nthis stage are wholly irrelevant and need not detain the Court, any further.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>49. This Court also prima facie finds merit in the contention of Defendant\r\nNo. 1 that the ownership of the copyright in the Telugu film vests in\r\nDefendant No. 1. As brought out above, under Section 2(uu) of the Act\r\n‘producer in relation to a cinematograph film means a person who takes\r\ninitiative and responsibility for making the ‘work’ and the producer is the\r\n‘author under Section 2(d)(v). Section 17 clearly provides that the author of\r\na work shall be the first owner of the copyright therein and therefore,\r\nDefendant No. 1 is the owner of the copyright in the Telugu film. This is\r\nfurther evident from the Assignment Deed dated 18.03.2020, whereby\r\nDefendant No. 3 has referred to Defendant No. 1 as a ‘producer’ of the\r\nTelugu film and has renounced all rights in the film so produced. Since\r\nDefendant No. 1 is the owner of the copyright in the Telugu film, it shall be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">entitled to the exclusive rights of a copyright owner under Section 14(d) of\r\nthe Act, which would include the right to communicate the film to public\r\nunder Section 14(d)(iii). As held by the Madras High Court in Thiagarajan\r\nKumararaja (supra), the right to communicate would include the right to\r\ndub. Therefore, by the operation of law, Defendant No. 1 in its own right as\r\na copyright owner has a right to dub the Telugu film in any language\r\nincluding Hindi and Plaintiff cannot assert any right to restrain Defendant\r\nNo. 1 from dubbing the Telugu film in Hindi.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>50. The judgments in The WellingtonCinema (supra) and British Actors\r\nFilm Company (supra) were relied upon by the Plaintiff for the proposition\r\nthat a copyright owner in any work may assign the right either wholly or\r\npartially and either generally or subject to limitations and may grant any\r\ninterest in the right by licence. These judgments, in my view, do not come\r\nto the aid of the Plaintiff as in the present case, the assignor under the Deed\r\nof Assignment dated 18.03.2020 has assigned the rights in the suit film in\r\nfavour of Defendant No.1, without any restrictions or limitations and\r\npertinent is it to mention that the assignor has in fact renounced all its rights\r\nin the suit film in favour of Defendant No.1,which is clearly evident from\r\nthe recitals in the Assignment Deed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"var(--bs-font-sans-serif)\"><span style=\"font-size: 1rem;\">51. The judgments in James Stewart(supra), Terry Gilliam (supra) and\r\nG. Ricordi & Co. (supra) lay down the proposition that merely because of\r\nderivative work has been created, thepre-existing rights in the original work\r\nare not extinguished. The said judgments do not apply to the facts of the\r\npresent case and cannot </span></font>ensure<font face=\"var(--bs-font-sans-serif)\"><span style=\"font-size: 1rem;\"> to the advantage of the Plaintiff. In the present\r\ncase, as aforementioned, Defendant No.3 has assigned various rights in\r\nfavour of Defendant No.1 in the suit film and after so assigning, has renounced the rights in the newly produced film.Moreover, Plaintiff cannot\r\nraise any grievance with the exploitation of the rights qua the suit film since\r\nno rights in the said film were assigned in favour of the Plaintiff and all its\r\nrights exist qua the Malayalam film or the new film made from the\r\nMalayalam film by it.\r\n</span></font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>52. For all the aforesaid reasons, the ex parte ad-interim injunction\r\ngranted vide order dated 31.03.2022 is hereby vacated.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>53. Needless to state, the observations and the views rendered in the\r\npresent judgment are only prima facie and shall not affect the final\r\nadjudication of the rights and contentions of the parties in the suit after the\r\ntrial is complete.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n54. All the above applications are disposed of in the above terms.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a2aeaacfa2731edef89a7539c0de3aa1.jpg', '6adf7a31370ebd094403c2d967e681bc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-13', 1, '', '', '2022-07-12 18:01:54', '2022-07-13 10:22:11');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1938, 'RwFRK5PO09HBX5Z0IVY2hIRGo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Rates mentioned in the Ready Reckoner, which are basically for the purpose of collection of stamp duty cannot be the basis for determination of the compensation for the lands acquired under the Land Acquisition Act. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bharat Sanchar Nigam Limited Vs Nemichand Damodardas and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3478 of 2022 decided on 11 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order passed by the High Court of Judicature at Bombay at Nagpur\r\nBench in First Appeal No.1302 of 2009 by which the High Court has\r\npartly allowed the said appeal preferred by the original owners/original\r\nclaimants and has enhanced the amount of compensation for the lands\r\nacquired mainly relying upon the prevailing Ready Reckoner rates of the\r\nland, the Bharat Sanchar Nigam Limited (BSNL) has preferred the\r\npresent appeal.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. That the lands owned by the respondents herein – original\r\nlandowners situated at Yavatmal, Maharashtra were acquired by the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">State Government under the provisions of the Land Acquisition Act for\r\nBSNL. The Land Acquisition Officer declared the award determining the\r\ntotal compensation @ Rs.14,33,703/- (at Rs.13.32 per sq. ft.). At the\r\ninstance of the landowners, a reference was made to the Reference\r\nCourt. The Reference Court enhanced the amount of compensation to\r\nRs.21/- per sq. ft.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.1. In a further appeal to the High Court at the instance of the original\r\nclaimants, by the impugned judgment and order, the High Court has\r\nenhanced the amount of compensation to Rs.174/- per sq. ft. (more than\r\n800% of the Reference Court compensation and about 1300% of the\r\ncompensation awarded by the Land Acquisition Officer). </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.1.  Learned Senior Advocate appearing on behalf of the appellant –\r\nBSNL has further submitted that in the facts and circumstances of the\r\ncase, no reliance could have been placed on the Ready Reckoner as\r\nPW3 – a Government Officer specifically admitted that the actual rates of\r\ntransaction of sales in market are different from the rates mentioned in\r\nthe Ready Reckoner and that the correct market price is not reflected\r\nfrom the Ready Reckoner. It is submitted that PW3 further specifically\r\nadmitted that the Ready Reckoner was prepared only for collecting\r\nstamp duty. It is submitted that therefore, the High Court has seriously\r\nerred in enhancing the amount of compensation solely relying upon the\r\nReady Reckoner prices of the area in question.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Present appeal is vehemently opposed by Mrs. Kiran Suri, learned\r\nSenior Advocate appearing on behalf of original claimants. Mrs. Suri,\r\nlearned Senior Advocate appearing on behalf of the original claimants\r\nhas vehemently submitted that in the present case while enhancing the\r\ncompensation amount to Rs. 174/- per sq. ft., the High Court has rightly\r\nrelied upon the Government Resolution and the Ready Reckoner. It is\r\ncontended that the value of the land mentioned in the Ready Reckoner\r\nis a statutory cost and even the Government has issued a Resolution\r\nthat while determining the amount of compensation, the price/value\r\nmentioned in the Ready Reckoner is required to be taken into\r\nconsideration.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5.1. It is submitted that in the present case, the original claimants have\r\nrelied upon the Government Resolution dated 31.10.1994 as well as the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Ready Reckoner rates by examining the Assistant Town Planner as\r\nPW-4.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>5.2. It is submitted that the Government Resolution dated 31.10.1994\r\nmakes it obligatory that on the date of the notification under Section 4 of\r\nthe Land Acquisition Act, wherever, necessary, the capitalization method\r\nand/or the valuation as per the Ready Reckoner, whichever is higher,\r\nshould be done at the time of market selection. It is submitted that the\r\naforesaid Government Resolution provided the basis for the calculation\r\nof the market value for Ready Reckoner. It is submitted that Ready\r\nReckoner is prepared after taking into consideration the geographical\r\nconditions of each area, major roads, railways, etc., as well as by\r\ninspecting the information of buying and selling transactions.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5.3. It is submitted that the Ready Reckoner is used for registering\r\ndocuments. The sale transactions cannot be for a lesser amount than\r\nthe market price. It is submitted that however, the value of the land in\r\nthe documents may be higher than the value proposed by the Ready\r\nReckoner. It is submitted that a policy decision by the Government that\r\nthe value/price mentioned in the Ready Reckoner can be considered for\r\nthe purpose of determining the compensation for the lands acquired\r\nunder the Land Acquisition Act is beyond the judicial review, more\r\nparticularly, when the same is not under challenge.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5.4. It is submitted that the prices mentioned in the Ready Reckoner\r\nare after following the procedure as required under the Maharashtra\r\nStamp (Determination of True Market Value of property) Rules, 1995.\r\nRelying upon the decision of this Court in the case of Lal Chand Vs.\r\nUnion of India and Anr., (2009) 15 SCC 769 (para 41), it is submitted\r\nthat as observed and held by this Court, the procedure adopted by the\r\nExpert Committee constituted under the Stamp Act, law is a scientific\r\nand methodical assessment of market value, and, therefore, there is no\r\nreason why such rates should not be a relevant piece of evidence for\r\ndetermination of the market value.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. At the outset, it is required to be noted that by the impugned\r\njudgment and order, the High Court relying upon the Ready Reckoner\r\nland prices of the area has enhanced the amount of compensation by\r\n800% from Rs.21/- per sq. ft. to Rs. 174/- per sq. ft. The High Court has\r\nheavily relied upon the Government Resolution dated 31.10.1994 as well\r\nas the Ready Reckoner prices and the decision of the High Court in the\r\ncase of Shalini Vaman Godbole (supra). However, when decision of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">this Court in the case of Jawajee Nagnatham (supra) and Krishi\r\nUtpadan Mandi Samiti, Sahaswan (supra), which were binding, on\r\nwhether while determining the compensation for the lands acquired\r\nunder the Land Acquisition Act, the Ready Reckoner prices, which are\r\nfor determination of the stamp duty can be considered or not, the High\r\nCourt has not followed the aforesaid decisions of this Court, which were\r\nbinding on the High Court under Article 141 of the Constitution of India.\r\nTherefore, High Court has seriously erred in not following the two\r\ndecisions of this Court in the case of Jawajee Nagnatham (supra) and\r\nKrishi Utpadan Mandi Samiti, Sahaswan (supra).\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>8. Whether the prices mentioned in the Ready Reckoner can be the\r\nbasis for determining the compensation for the lands acquired under the\r\nLand Acquisition Act has been dealt with by this Court in the two\r\ndecisions of this Court in the case of Jawajee Nagnatham (supra) and\r\nKrishi Utpadan Mandi Samiti, Sahaswan (supra). In the case of\r\nJawajee Nagnatham (supra), this Court has observed and held that the\r\namount of compensation for the lands under the Land Acquisition Act is\r\ndetermined by adopting the method of valuation namely,</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(1) opinion of\r\nexperts;</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(2) the price paid within a reasonable time in bona fide\r\ntransactions of purchase of the lands acquired or the lands adjacent to\r\nthe lands acquired and possessing similar advantages; and</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(3) a number\r\nof years purchase of the actual or immediately prospective profits of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">lands acquired. It is observed that in determining the market value, the\r\nCourt has to take into account either one or the other of the three\r\nmethods to determine market value of the lands appropriate to the facts\r\nof a given case to determine the market value. Thereafter, this Court\r\nconsidered whether the Basic Valuation Register would form the\r\nfoundation to determine the market value.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>As such, we are in complete agreement with the view taken in the\r\naforesaid two decisions that the prices mentioned in the Ready\r\nReckoner for the purpose of calculation of the stamp duty, which are\r\nfixed for the entire area, cannot be the basis for determination of the\r\ncompensation under the Land Acquisition Act. It is required to be noted\r\nthat in the present case, the Reference Court did consider the\r\nsubmission on behalf of the claimants to determine the market value on\r\nthe basis of the Ready Reckoner. The Reference Court specifically\r\nrefused to accept the same on appreciation of the deposition of PW-3.\r\nPW-3, a Government Officer specifically admitted that the Ready\r\nReckoner was prepared for recovery of the proper stamp duty and the\r\nregistration charges and that the actual rates of transaction of sales in\r\nmarket are different than the rates mentioned in the Ready Reckoner\r\nand that correct market prices cannot be reflected from the Ready\r\nReckoner. Even PW-4 also specifically admitted in his deposition that\r\nthe Ready Reckoner is prepared only for collecting stamp duty. The\r\nRefence court, therefore, rightly relied upon and followed the decisions\r\nof this Court in the case of Jawajee Nagnatham (supra) and Krishi\r\nUtpadan Mandi Samiti, Sahaswan (supra).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Why the prices mentioned in the Ready Reckoner, which is\r\nbasically for the purpose of collecting proper stamp duty and registration\r\ncharges shall not be the basis for determination of the compensation for\r\nthe lands acquired under the Land Acquisition Act is required to be\r\nconsidered from another angle also. It cannot be disputed that the rates\r\nmentioned in the Ready Reckoner are for the lands of the entire area\r\nand the uniform rates are determined with respect to different lands.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Thus, there may be various factors, which are required to be\r\nconsidered for determining the market value of the land. The market\r\nvalue of the land depends upon the location of the land; area of the land;\r\nwhether the land is in a developed area or not; whether the acquisition is\r\nof a small plot of land or a big chunk of land and number of other\r\nadvantageous and disadvantageous factors are required to be\r\nconsidered. Therefore, there cannot be the same market value for the\r\ndifferent lands while determining the compensation for the lands\r\nacquired under the Land Acquisition Act. Therefore, the rates mentioned\r\nin the Ready Reckoner, which are basically for the purpose of collection\r\nof stamp duty and as observed hereinabove, which are the uniform rates\r\nfor all the lands in the area, cannot be the basis for determination of the\r\ncompensation for the lands acquired under the Land Acquisition Act.\r\nTherefore, the High Court has committed a serious error in enhancing\r\nthe amount of compensation by 800% from Rs. 21/- per sq. ft. to Rs.\r\n174/- per sq. ft. relying upon and/or considering the rates mentioned in\r\nthe Ready Reckoner. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Now, so far as the reliance placed upon the Government\r\nResolution dated 31.10.1994 by the claimants as well as the High Court\r\nis concerned, apart from the fact that the same is contrary to the law laid\r\ndown by this Court in the aforesaid two decisions, what is mentioned in\r\nthe said Government Resolution is that the Ready Reckoner is\r\nscientifically prepared by taking into account the geographical conditions\r\nof each area, major roads, railways, etc., as well as by inspecting the\r\ninformation of buying and selling transactions and that the Ready\r\nReckoner rates are based on the talukas in rural areas and the urban\r\nareas in different parts of the city.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>As observed hereinabove, there cannot be a uniform market value\r\nof the land for the purpose of determination of the compensation for the\r\nlands acquired under the Land Acquisition Act. As observed herein\r\nabove, the market value of the different lands vary from place to place\r\nand it depends upon various factors as observed hereinabove.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. In view of the above and for the reasons stated above, present\r\nappeal succeeds. The impugned judgment and order passed by the\r\nHigh Court is hereby quashed and set aside and the judgment and order\r\npassed by the Reference Court determining the compensation @\r\nRs.21/- per sq. ft. is hereby restored.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Present Appeal is Allowed accordingly. However, in the facts and\r\ncircumstances of the case, there shall be no order as to costs. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0b65b33edd50bf3658599669ddc5e6c9.jpg', '681fd57234c36741ae880a20152bd8ae.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-13', 1, '', '', '2022-07-12 19:00:37', '2022-07-13 08:25:25'),
(1939, 'qVZBaxbiffBdsucvbuMzlw7H1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Make sure that men of integrity are posted to Anti Corruption Bureau which is established to prevent corruption. Karnataka High Court directs the Chief Secretary to Government.', '<p><span style=\"font-weight: bolder; color: rgb(51, 51, 51); font-family: &quot;Helvetica Neue&quot;, Helvetica, Arial, sans-serif; font-size: medium;\">Mahesh P S&nbsp; vs State of Karnataka<br></span><b>Criminal Petition 4909 of 2022. Daily Order dated 11 July 2022<br>Justice H P Sandesh</b></p><p><span style=\"color: rgb(51, 51, 51); font-family: &quot;Helvetica Neue&quot;, Helvetica, Arial, sans-serif; font-size: medium;\"><b>The Special Counsel appearing for ACB placed the investigation materials collected till date as directed by this Court in a sealed cover and the same is taken on record. </b></span></p><p><span style=\"color: rgb(51, 51, 51); font-family: &quot;Helvetica Neue&quot;, Helvetica, Arial, sans-serif; font-size: medium;\"><b>2. The Registrar (Judicial) also placed on record the details of B-reports, which have been received from 18 districts of the State and the same are placed on record. The Registrar (Judicial) submits that report from the remaining districts is yet to be received. </b></span></p><p><span style=\"color: rgb(51, 51, 51); font-family: &quot;Helvetica Neue&quot;, Helvetica, Arial, sans-serif; font-size: medium;\"><b>3. Sri Prasanna Kumar, the learned Standing Counsel appearing for Central Bureau of Investigation (CBI) placed the report on record in compliance with the order dated 07.07.2022 and the same is taken on record. The report discloses that the raid conducted on the residential house of ADGP. </b></span></p><p><span style=\"color: rgb(51, 51, 51); font-family: &quot;Helvetica Neue&quot;, Helvetica, Arial, sans-serif; font-size: medium;\"><b>4. This Court would like to make it clear that the learned counsel Sri Ashok Haranahalli appears and submits that SLP is filed before the Apex Court by ACB and he is not the counsel for ACB before this Court and he also states that there cannot be any attack on the judiciary while dispensing the justice and it amounts to attack on the independence of judiciary and insist for revealing the threat. When this matter was heard on 29.06.2022, this Court found inaction on the part of the ACB in arraigning the real accused inspite of the material against the Deputy Commissioner and not shown enthusiastic investigation and hence observed the same during the proceedings and the matter was adjourned to 04.07.2022. In the meanwhile, on account of superannuation of the Hon’ble Chief Justice, a dinner was arranged by this Court to bid farewell on 01.07.2022. “A Hon’ble sitting Judge came and sat by the side of me and stated that he received a call from Delhi (not disclosed the name) and said that the person who called from Delhi, enquired about me and immediately I replied that I am not affiliated to any political party and the Hon’ble Judge did not stop the same there itself and further said that ADGP is from North India and he is powerful and also gave an instance of transfer of Senior Judge of this Court to some other State and told that for no mistake on his part, he was transferred and chances of one side feeding to them” and the same is nothing but an attack on the independence of judiciary and interference in dispensation of justice. Thus, this Court when found inaction on the part of ACB in not properly investigating the matter and a threat was made to summon the Service Record (SR) of the ADGP. On perusal of the SR, for the period of assessment 2009-2010, the Reviewing Authority, a remark was made that the Officer has to give adequate attention to police image while performing his duties or supervising the duties of subordinate officers/ranks. It is further observed in column No.9 that lesser strength are loose supervision, soft going on subordinates, inability to say ‘No’. For the year 2008-2009 i.e., from 01.04.2008 to 31.03.2009, the remark is that his ability to take tough stand shall improve. It is emerged in the service record that he was working as S.P. in Bellary and he was transferred and within six days again got it transferred to Bellary and the counsel for CBI submits that the Hon’ble Supreme Court is monitoring the mining case and CBI raid was conducted on the residence of the ADGP. </b></span></p><p><span style=\"color: rgb(51, 51, 51); font-family: &quot;Helvetica Neue&quot;, Helvetica, Arial, sans-serif; font-size: medium;\"><b>5. Apart from that, the Deputy Director of DPAR submits the records regarding the CBI raid in respect of residence of ADGP, wherein found material, requires an enquiry and requested the State Government to enquire into the matter and now the CBI report is also placed on record and the learned Standing Counsel for CBI submits that not received any enquiry report from the State Government. On perusal of material it is clear that CBI conducted the raid on the residential house of ADGP on 05.04.2013 and found material to enquire the matter and the same is not reached to the logical end. When all these materials are found and also the B-reports which have been submitted by ACB, in respect of 5 matters only ACB has given the details and other 99 B-reports are dumped to the Court without giving any details like crime, offences, status of B-report. Hence, this Court summoned the details from the respective Courts through the Registrar (Judicial). Having taken note of no details are given and the way in which the officer who is in helm of affairs not assisted the Court, found that the same is not done in the interest of public as observed by this Court in the order dated 07.07.2022 wherein this Court cited the judgment of the Apex Court wherein it is held that if the investigation is not proceeding legally, Court can take note of the public interest as the sole consideration and a Constitutional Court monitors an investigation only when circumstances compel it to do so, such (illustratively) a lack of enthusiasm by the Investigating Officer or agency (due to ‘pressures’ on it) in conducting a proper investigation, or a lack of enthusiasm by the concerned Government in assisting the investigating authority to arrive at the truth, or a lack of interest by the investigating authority or the concerned Government to take the investigation to its logical conclusion for whatever reason, or in extreme cases, to hinder the investigation. </b></span></p><p><span style=\"color: rgb(51, 51, 51); font-family: &quot;Helvetica Neue&quot;, Helvetica, Arial, sans-serif; font-size: medium;\"><b>6. In the case on hand also lack of enthusiasm and the investigation not taken place legally and not assisted the Court by ACB properly and the said circumstances forced to call all the details including SR as well as B-reports which have been submitted before the Trial Courts that is only in the interest of public and the Constitutional Court monitors the investigation only when the circumstances compel it to do so. The ACB, only after this Court found the material and on observation of the Court, arraigned the Deputy Commissioner as accused and arrested him and also conducted the raid on the house of Deputy Commissioner. The B-report also discloses that the accused are let-off by making the accused to refund the bribe money and not considered the digital material regarding demand and acceptance. </b></span></p><p><span style=\"color: rgb(51, 51, 51); font-family: &quot;Helvetica Neue&quot;, Helvetica, Arial, sans-serif; font-size: medium;\"><b>7. Having discussed above, it is appropriate to direct the Chief Secretary and DPAR that while posting the officers that too in a institution which is established for prevention of corruption to take note of the public interest and should not be posted any tainted officer to the helm of affairs of the institution which is established to prevent the corruption. </b></span></p><p><span style=\"color: rgb(51, 51, 51); font-family: &quot;Helvetica Neue&quot;, Helvetica, Arial, sans-serif; font-size: medium;\"><b>8. The Chief Secretary before posting an officer for the office which is established for prevention of corruption, shall consider the officer is having credibility/integrity and also take note of antecedents while posting to take the institution to the great height. </b></span></p><p><span style=\"color: rgb(51, 51, 51); font-family: &quot;Helvetica Neue&quot;, Helvetica, Arial, sans-serif; font-size: medium;\"><b>9. The Secretary to the DPAR also shall bring it to the notice of the Chief Secretary while posting an officer in helm of affairs of prevention of corruption in ACB, to furnish all the details regarding the service records as well as the integrity of the officer. The other day, a mention was made before the Court by the Deputy Secretary of DPAR that due to the pressure, the same cannot be done and should not yield to such pressure in the interest of the public. </b></span></p><p><span style=\"color: rgb(51, 51, 51); font-family: &quot;Helvetica Neue&quot;, Helvetica, Arial, sans-serif; font-size: medium;\"><b>10. The posting should not be considered either by external influence or internal influence and the same cannot be a criteria while posting the officers to the institution. </b></span></p><p><span style=\"color: rgb(51, 51, 51); font-family: &quot;Helvetica Neue&quot;, Helvetica, Arial, sans-serif; font-size: medium;\"><b>11. The officers who have to be posted to prevent the corruption, their family members or any other persons should not be facing any investigation either by ACB or Lokayukta or otherwise, the family members or relatives who are facing the investigation by ACB or Lokayukata, may take advantage of the same. </b></span></p><p><span style=\"color: rgb(51, 51, 51); font-family: &quot;Helvetica Neue&quot;, Helvetica, Arial, sans-serif; font-size: medium;\"><b>12. While posting the officers, not to post the officers who have faced the traps or enquiry conducted by the ACB or Lokayukta. </b></span></p><p><span style=\"color: rgb(51, 51, 51); font-family: &quot;Helvetica Neue&quot;, Helvetica, Arial, sans-serif; font-size: medium;\"><b>13. The Special Counsel appearing for ACB has filed a memo stating that Special Leave Petition (SLP (Crl.) Provisional Application No.13963-2022) is filed before the Apex Court challenging the order dated 07.07.2022 and the said petition is listed on 12.07.2022 and prays this Court to adjourn the matter and the said memo is taken on record and the Special Counsel appearing for ACB is directed to furnish a copy of the said memo along with its enclosures to the learned counsel appearing for the petitioner since copy is not served. </b></span></p><p><span style=\"color: rgb(51, 51, 51); font-family: &quot;Helvetica Neue&quot;, Helvetica, Arial, sans-serif; font-size: medium;\"><b>14. The learned counsel appearing for the petitioner opposes for the adjournment sought by the Special Counsel appearing for ACB on the ground that the matter has been moved before the Apex Court against the order dated 07.07.2022 and the same is not bearing on the bail petition. The matter is listed tomorrow before the Apex Court and hence it is appropriate to grant two days time keeping in view of the contention of the learned counsel for the petitioner that the personal liberty of a person who is in custody is also involved. </b></span></p><p><span style=\"color: rgb(51, 51, 51); font-family: &quot;Helvetica Neue&quot;, Helvetica, Arial, sans-serif; font-size: medium;\"><b>15. The registry is directed to communicate this order to the Chief Secretary as well as to the Secretary to the DPAR forthwith. </b></span></p><p><span style=\"color: rgb(51, 51, 51); font-family: &quot;Helvetica Neue&quot;, Helvetica, Arial, sans-serif; font-size: medium;\"><b>16. The Registrar (Judicial) is directed to keep the further investigation materials furnished before the Court by ACB in safe custody. </b></span></p><p><span style=\"color: rgb(51, 51, 51); font-family: &quot;Helvetica Neue&quot;, Helvetica, Arial, sans-serif; font-size: medium;\"><b>17. List the matter on 13.07.2022 at 2.30 p.m., to hear the bail petition.</b></span><br></p>', 'e9747483f1c78bf81ea131905750e9fc.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-12', 1, '', '', '2022-07-12 23:10:20', '2022-07-12 23:10:20');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1940, 'hPd5prQX97AYikrf3EzAeynyK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Copyright. Author of a work is the first owner of the copyright and in relation to a cinematograph film, the producer is th e author and thus the first owner of the copyright therein. Delhi High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">JA Entertainment Pvt Ltd Vs Sithara Entertainment and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">CS (COMM) 191 of 2022 decided on 11 July 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Jyoti Singh.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">1. Present suit has been filed by the Plaintiff seeking permanent injunction restraining Defendants No. 1 and 2 and all others acting on their behalf from making, producing, exhibiting or communicating to the public </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the suit film (as described hereinafter) or any part thereof in any manner, including but not limited to theatres, television, OTT platforms, etc.,so as to infringe Plaintiff’s copyright in respect of Remake and Dubbing Rights of the Malayalam film in Hindi language.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">2. Case of the Plaintiff as set out in the plaint is that in or around March, 2020, Plaintiff’s creative team came across a Malayalam film ‘Ayyappanum Kozhiyum’, which was released on 07.02.2020 and was a huge success commercially. Plaintiff decided to remake the film in Hindi language and being a commercially lucrative venture, Plaintiff approached the producer of the film, i.e., Defendant No. 3 and Late Kovakattu (Defendant No. 4 herein is the wife of Late Kovakattu) and sought assignment of Hindi Remake Rights in the Malayalam film.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. Pursuant to negotiations, an Assignment Agreement was executed on 13.05.2020, between Plaintiff and Defendant No. 3 and Late Kovakattu, under which Hindi Remake Rights in the Malayalam film were assigned to the Plaintiff. It is averred that under the said Agreement, Plaintiff was assigned the exclusive, perpetual and irrevocable ‘Remake and Dubbing’ rights, to be exercised in all modes, mediums and formats. The rights assigned, to the extent relevant for the present case included: (a) the sole right to make a new cinematograph film based on the Malayalam film in Hindi language; (b) right to dub the Malayalam film as well as the Hindi remake in any or all languages; and (c) right to subtitle in any language for any purpose through any media. Around July, 2020 Plaintiff commenced pre-production of the Hindi Remake in accordance with rights granted under the Agreement dated 13.05.2020.</span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">4. On or around 04.03.2022, Plaintiff came across a trailer of a Telugu film on YouTube titled ‘Bheemla Nayak’ (hereinafter referred to as the ‘suit film’), dubbed in Hindi, though the release date was not announced. Since this indicated a potential infringement of Plaintiff’s rights, Plaintiff immediately enquired from Defendant No. 3 about the nature of rights assigned to Defendant No. 1, i.e.,the producer of the suit film. Defendant No. 3, in response, clarified that only limited rights had been assigned to Defendant No. 1 to remake the Malayalam film in Telugu language and also supplied a copy of Assignment Agreement dated 18.03.2020, executed between Defendant No. 3 and Defendant No. 1.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">5. Plaintiff was categorically informed that Defendant No. 1 wanted to expand the scope of rights under the Agreement dated 18.03.2020 and had circulated an amended version of the Agreement to include clause 3, so as to acquire rights of dubbing beyond the Telugu language, but Defendant No. 3 had refused to execute an amended Agreement.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">6. However, on learning that exploitation rights of the suit film had been assigned to one Goldmine Telefilms Pvt. Ltd.,Plaintiff sent a Legal Notice highlighting its rights and called upon Defendant No. 1 to cease and desist from releasing the suit film in theatres or through any other mode or medium, as that would amount to infringement. On receiving a reply to the Notice from Defendant No. 1 stating that by virtue of being the producer of the Telugu remake suit film, Defendant No. 1 was the copyright owner, Plaintiff had no option but to approach this Court. <br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">7. The Malayalam film of which Defendants No. 3 and 4 are equal owners is a copyrighted work within the meaning of Section 13 of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Copyright Act, 1957 (hereinafter referred to as the ‘Act’) and they are thus entitled to exploit the copyright in a manner they deem fit. Exercising their rights, Defendant No. 3 and Late Kovakattu assigned certain rights in favour of the Plaintiff, which rights amongst others included the right to Remake and Dub the Malayalam film in Hindi language and were in the nature of limited derivative/adaptation rights qua Hindi language.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">8. The rights assigned to Defendant No. 1 under the Agreement dated 18.03.2020 were a separate set of limited derivative/adaptation rights in the Malayalam film which did not include Remaking and Dubbing rights in Hindi language. The rights were restricted to Remaking and Dubbing the Malayalam film into Telugu language and subtitling in all languages. Thus, Defendant No. 1’s act of dubbing the suit film in Hindi language amounts to infringement of Plaintiff’s copyright.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">9. The suit film being a derivative work, admittedly derived from the Malayalam film and/or its underlying works will be protected by copyright only to the extent provided under Section 14(1)(d) of the Act. Since the assignment in favour of Defendant No. 1 was only partial, Defendant No. 3 remained the owner of the rights not assigned to Defendant No.1, by virtue of provisions of Section 18 of the Act. Reliance was placed on the judgments in The Wellington Cinema v. The Performing Right Society Ltd., 1937 SCC OnLine Bom 14 and British Actors Film Company Ltd. & Ors. v. Glover, [1918] 1 K.B. 299. Once the rights accruing to Defendant No. 1 are read in light of Sections 14 and 18 of the Act, it is clear that Defendant No.1 had no right to utilise the script of the Malayalam film for any purpose other than Remaking and/or Dubbing in Telugu language only.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">10. A bare perusal of the Assignment Agreement dated 18.03.2020, specifically clauses 1, 2, 3 and 12, shows that the only right assigned was to Remake and Dub the film in Telugu and no other language and a commercial understanding to a contract is the only way the effect of a contract must be interpreted, as held in Bangalore Electricity Supply Company Limited (BESCOM) v. E.S. Solar Power Private Limited and Others, (2021) 6 SCC 718. The right to dub is a separate right under the bundle of rights forming a copyright in a work and it cannot be said that assignment of a right to remake a film would include right to dub the same in any language. Heavy reliance was placed on the Judgement in Thiagarajan Kumararaja v. Capital Film Works (India) Pvt. Ltd. and Another, 2017 SCC OnLine Mad 37588</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">12. Plaintiffs the owner of the right to remake the Malayalam film in Hindi language under the Agreement dated 13.05.2020 and thus,Defendant No.1’s act of remaking the Malayalam film into Telugu language and thereafter dubbing the same into Hindi language effectively amounts to remaking the Malayalam film into Hindi language and amounts to infringement of Plaintiff’s copyright under the Act. Copyright is a right in rem and owner of a copyright in any work is entitled to defend the same against anyone who infringes that right, by virtue of provisions of Section 51 of the Act.<br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">15. On a conjoint reading of Section 17 with Section 2(d)(v) and 2(f) of the Act, it is explicit that owner of the copyright in the Telugu film will be its author i.e., the producer of the film, which is Defendant No. 1 and thus, it has exclusive rights under Section 14(d) of the Act, which would include the right to communicate the film to the public under Section 14(d)(iii). Inherent in the right to communicate is the right to communicate by dubbing in all languages. This is clear from the observations of the Madras High Court in Thiagarajan Kumararaja(supra). Owner of copyright in a cinematographic work, inter alia, has a right to both subtitle and dub its work, though subject to any restrictive condition beingput by the parties concerned.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">16. Allegations of infringement of Plaintiff’s copyright are misplaced and baseless. Defendant No. 1 has not dubbed the Malayalam film in Hindi language and has only dubbed the remade suit film, under the exclusive right to do so by virtue of the Deed of Assignment. Under the Assignment Deed dated 13.05.2020, Plaintiff inter alia acquired the right to:</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(a) remake the Malayalam film in Hindi;</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(b) dub the Malayalam film or the remade Hindi film in any language;</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(c)subtitle in any language; and</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(d) to remake as a separate and independent work the cinematographic film as owner of copyright by virtue of rights under Section 14(d) of the Act. Alleged infringement would require to be tested on the anvil of these rights and when so examined it is crystal clear that dubbing the remade Telugu film in Hindi cannot even remotely amount to infringement of Plaintiff’s copyrights. The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">test of infringement is not the degree of similarity between Telugu film dubbed in Hindi and the Malayalam film dubbed in Hindi and, therefore, the question that is to be posed is whether dubbing the Telugu film in Hindi, in order to communicate it to the public, is an exclusive right of the Plaintiff. If the answer is in the affirmative, Plaintiff may have a cause of action. Clearly, no such right has been assigned to the Plaintiff and on the contrary, it is the exclusive right of Defendant No. 1 as producer of the Telugu film to dub the Telugu film in Hindi.In the absence of a right,Plaintiff can make no claim of infringement against Defendant No.1.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">17. The suit film has a new name and star cast and is in a different language, though the script is similar to the Malayalam film and thus the copyrights of the respective films are distinct and constitute separate work. Deed of Assignment dated 18.03.2020sets out that the Assignors will have no rights over the remade film, produced and dubbed in Telugu language and subtitled in various languages, without geographical restrictions. There is nothing in the Agreement which prevents or restricts the right of Defendant No.1 from dubbing the suit film into a language of its choice, including Hindi. Defendants No. 3 and 4 cannot claim the right to dub the remade suit film into Hindi as they have expressly given up all rights in the Telugu film including the right to communicate by dubbing and Plaintiff cannot claim better rights than them. In any event, Plaintiff does not even claim any relief for the remade Telugu film and admits in the reply to the application being I.A. 6078/2022, filed by Defendant No. 2 that remade Telugu film has a completely new and different star cast and is based on reworked screenplay, dialogues, direction and music composition. Plaintiff has also admitted in para 28 of the plaint that the Agreements dated 18.03.2020</span><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">38. Perusal of the above recitals would show that Defendant No. 3 being the absolute owner of the original copyright of the story and producer of the Malayalam film, as an Assignor assigned to Defendant No. 1 the entire rights for Remaking and Dubbing the said film in Telugu language and subtitling in all Indian and world languages. Additionally, Assignee was given the right to alter, delete, add, modify the story and screenplay of the Malayalam film in any manner to suit the convenience of the Assignee/Defendant No. 1. The Assignment Deed also reflects that the Assignors renouncedall their rights whatsoever over the film ‘produced’ and dubbed in Telugu language and subtitled in all world languages, without any geographical restriction.<br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">40. It is explicit from a reading of the Deed of Assignment that the Remake and Dubbing rights assigned to the Plaintiff by Defendants No. 3 and Late Kovakattu in the Malayalam film inter alia were to make a new cinematograph film based on the Malayalam film and the underlying works thereof (New Film) in Hindi language and the right to dub the Malayalam film in any and all languages known or coming into existence in the near <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">future (DubbedFilm). Plaintiff was also assigned the right to dub the New Film in any language existing or coming into existence in future, which needless to state included dubbing in Hindi language.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">41. As held by the Andhra Pradesh High Court in M/s. Sunder Pictures (supra) copyright in a work as envisaged in the Act consists of a number of rights and there can also be different assignees in respect of different rights. In respect of any of the rights which may be assigned, assignee shall be treated as owner of the copyright for the purpose of this Act. In Thiagarajan Kumararaja (supra), the Division Bench held that the owner of a copyright in a cinematograph film will inter alia have the right to both subtitle and dub its work, subject to any restrictive condition being put by the parties.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">42. The primordial grievance of the Plaintiff is that Defendants No. 3 and Late Kovakattu while assigning the copyright to remake the Malayalam film in favour of Defendant No. 1, had restricted the remaking and dubbing to Telugu language and therefore this restrictive covenant prevents Defendant No. 1 from dubbing the Telugu remake in Hindi. Therefore, according to the Plaintiff the act of dubbing the suit film in Hindi violates and infringes the copyright of the Plaintiff </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">43. On a plain reading of the prayer clause, it is evident that Plaintiff seeks an injunction against Defendants No. 1 and 2 from making, producing, exhibiting or communicating to the public the suit film or any part thereof, in any manner, so as to infringe Plaintiff’s copyright in respect of ‘Remake and Dubbing rights’ of the Malayalam film in Hindi language as also ot her rights detailed in para 19(iv) of the plaint. Therefore, what is required to be seen is the Remake andDubbing rights that were assigned to the Plaintiff by Defendant No. 3 in the Malayalam film. The recitals of the Deed of Assignment dated 13.05.2020, as extracted above, prima facie show that the ‘Remake and Dubbing rights’ inter alia included making a new cinematograph film and the underlying works thereof in Hindi language with the right to dub the Malayalam film as well as the New Film in any and all languages known or coming into existence in the near future. Admittedly, the Plaintiff was not assigned the right to remake the Malayalam film in Telugu language, which was a right assigned to Defendant No. 1 by Defendant No. 3. It is also not the case of the Plaintiff that Defendant No. 1 is dubbing the Malayalam film in Hindi and at the cost of repetition it may be noted that Plaintiff has no grievance with remaking of the Malayalam film in Telugu.Defendant No. 1, even according to the Plaintiff, is dubbing the remade Telugu film in Hindi, which has triggered the present suit.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">44. Section 51 provides that a copyright in a work shall be deemed t o be infringed when any person, without a license granted by the copyright owner or Registrar of Copyrights or in contravention of the licence conditions, does </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">anything, the exclusive right to do which is by the Act conferred upon the owner of the copyright. Simply put under Section 51 of the Act, a grievance with respect to infringement of a copyright can arise only if the exclusive right to do an act conferred upon the copyright owner is infringed. Therefore, if Defendant No. 1 had remade the Malayalam film in Hindi language or had dubbed the same in Hindi language, Plaintiff may have had a cause of action for infringement. Beyond a doubt, the case of alleged infringement would require to be tested within the four corners of the provisions of Section 51 of the Act and the limited issue at this stage that requires consideration would be the exclusive rights given to the Plaintiff under the Deed of Assignment and to see if those rights are infringed. Dubbing of the remade Telugu film into Hindi, in my prima facie view, does not amount to infringement of the exclusive right of the Plaintiff to remake the Malayalam film in Hindi language and to dub the New Film as well as the Malayalam film in all languages.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">45. In light of the aforesaid, in my prima facie view, Defendants are right in their argument that the test of infringement in the present case is not the degree of similarity between the Telugu film dubbed in Hindi and the Malayalam film dubbed in Hindi, but the test is whether dubbing the Telugu film in Hindi in order to communicate it to the public infringes on any exclusive right of the Plaintiff, which is not the case here. </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">47. After hearing the parties extensively, in my prima facie opinion, none of the contentions raised by the Plaintiff at the time of grant of ex parte ad interim injunction hold water in law. Plaintiff, no doubt, has a right to remake the Malayalam film in Hindi language as well as dub the same or the New Film in any language, however, Defendant No. 1 has admittedly dubbed the remade Telugu film (suit film)in Hindi,which does not infringe the Plaintiff’s right, applying the provisions of Section 51 of the Act. Insofar as the contention that the Deed of Assignment in favour of Defendant No. 1 restricts the right to dub the Malayalam film or its remake in Telugu language only is concerned, as aforementioned, Defendant No. 1 is neither remaking nor dubbing the Malayalam film in Hindi language and Plaintiff can have no grievance with the manner Defendant No.1 is exploiting its rights in the remade Telegu film.Even assuming for the sake of argument that Defendant No. 1 is violating the terms of the Deed of Assignment executed with Defendant No. 3, in terms of dubbing the remade Telugu film in Hindi, it may at the highest give rise to a cause of action in favour of Defendant No. 3, who has not chosen to sue Defendant No. 1, but cannot be the basis of an infringement action in favour of the Plaintiff.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">48. As far as the commercial viability of the proposed film of the Plaintiff is concerned, as rightly argued by the Defendants, this is a factor which is wholly irrelevant to the issue of alleged violations of the provisions of the Copyright Act, under which an action for infringement can only be predicated on existence of a copyright. Both sides have placed considerable reliance on the observations of the Division Bench in Thiagarajan Kumararaja (supra), wherein the Court has essentially laid down that the producer being the author of a cinematograph film has all the rights in the film as conferred under Section 14(d)(iii) of the Act, including the right to dub and subtitle, subject, however, to any restrictive condition(s) being put by the parties. In view of the aforesaid prima facie finding that Defendant No. 1 is not infringing any exclusive right assigned to the Plaintiff by Defendant No. 3, this argument or the observation of the Division Bench at this stage are wholly irrelevant and need not detain the Court, any further.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">49. This Court also prima facie finds merit in the contention of Defendant No. 1 that the ownership of the copyright in the Telugu film vests in Defendant No. 1. As brought out above, under Section 2(uu) of the Act ‘producer in relation to a cinematograph film means a person who takes initiative and responsibility for making the ‘work’ and the producer is the ‘author under Section 2(d)(v). Section 17 clearly provides that the author of a work shall be the first owner of the copyright therein and therefore, Defendant No. 1 is the owner of the copyright in the Telugu film. This is further evident from the Assignment Deed dated 18.03.2020, whereby Defendant No. 3 has referred to Defendant No. 1 as a ‘producer’ of the Telugu film and has renounced all rights in the film so produced. Since Defendant No. 1 is the owner of the copyright in the Telugu film, it shall be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">entitled to the exclusive rights of a copyright owner under Section 14(d) of the Act, which would include the right to communicate the film to public under Section 14(d)(iii). As held by the Madras High Court in Thiagarajan Kumararaja (supra), the right to communicate would include the right to dub. Therefore, by the operation of law, Defendant No. 1 in its own right as a copyright owner has a right to dub the Telugu film in any language including Hindi and Plaintiff cannot assert any right to restrain Defendant No. 1 from dubbing the Telugu film in Hindi.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">50. The judgments in The WellingtonCinema (supra) and British Actors Film Company (supra) were relied upon by the Plaintiff for the proposition that a copyright owner in any work may assign the right either wholly or partially and either generally or subject to limitations and may grant any interest in the right by licence. These judgments, in my view, do not come to the aid of the Plaintiff as in the present case, the assignor under the Deed of Assignment dated 18.03.2020 has assigned the rights in the suit film in favour of Defendant No.1, without any restrictions or limitations and pertinent is it to mention that the assignor has in fact renounced all its rights in the suit film in favour of Defendant No.1,which is clearly evident from the recitals in the Assignment Deed.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><font face=\"var(--bs-font-sans-serif)\"><span style=\"font-size: 1rem;\">51. The judgments in James Stewart(supra), Terry Gilliam (supra) and G. Ricordi & Co. (supra) lay down the proposition that merely because of derivative work has been created, thepre-existing rights in the original work are not extinguished. The said judgments do not apply to the facts of the present case and cannot </span></font>ensure<font face=\"var(--bs-font-sans-serif)\"><span style=\"font-size: 1rem;\"> to the advantage of the Plaintiff. In the present case, as aforementioned, Defendant No.3 has assigned various rights in favour of Defendant No.1 in the suit film and after so assigning, has renounced the rights in the newly produced film.Moreover, Plaintiff cannot raise any grievance with the exploitation of the rights qua the suit film since no rights in the said film were assigned in favour of the Plaintiff and all its rights exist qua the Malayalam film or the new film made from the Malayalam film by it.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">52. For all the aforesaid reasons, the ex parte ad-interim injunction granted vide order dated 31.03.2022 is hereby vacated.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">53. Needless to state, the observations and the views rendered in the present judgment are only prima facie and shall not affect the final adjudication of the rights and contentions of the parties in the suit after the trial is complete.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">54. All the above applications are disposed of in the above terms.</span></span></p>', 'db6c82f3049d637d0035040149fb5b9d.jpg', '9e38634b1659b6b94c3ec41374704a1a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-14', 1, '', '', '2022-07-13 03:41:36', '2022-07-14 10:20:29');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1941, 'CUuI0Krwl1ESClPNnNqP0SQq2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Specific Relief Act. Where a certain amount has been paid in advance and the balance is required to be paid within a stipulated time, it is for the Plaintiff to show that he was in a position to pay the balance money. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>U.N. Krishnamurthy Thr LRS Vs  A.M. Krishnamurthy.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4703 of 2022 decided on 12 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Indira Banerjee and Justice Hrishikesh Roy.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. This Appeal is against a final judgment and decree dated 30th\r\nOctober 2017 passed by the High Court of Judicature at Madras,\r\ndismissing the Appeal Suit No. 262 of 2011 filed by the Appellants and\r\nconfirming a judgment and order and decree dated 30th November <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2010 passed by the Principal District Judge, Krishnagiri, hereinafter\r\nreferred to as “the Trial Court” in Original Suit No. 30 of 2005 filed by\r\nthe Respondent Plaintiff, for specific performance of an agreement for\r\nsale of the suit property.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. In the plaint, it is pleaded that the original Defendant U.N.\r\nKrishnamurthy’s father, U.R. Narasaiah had executed a will on or about\r\n9th May 1984, bequeathing the suit property to the original Defendant,\r\nU.N. Krishnamurthy (since deceased). After the death of his father,\r\nU.R. Narasaiah, on 25th April 1987, the original Defendant U. N.\r\nKrishnamurthy became the absolute owner of the suit property.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>5. It is the case of the Appellants that on 11th November 2002, while\r\nthe original Defendant was getting the suit property whitewashed, a\r\nreal estate agent Mr. N. Anjappa approached the original Defendant\r\nwith an offer to arrange the sale of the suit property at a good price.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>6. As per the pleadings in the plaint, the original Defendant agreed\r\nto sell the suit property to the Respondent Plaintiff, in the presence of\r\nMr. N. Anjappa, Mr. S.A. Muralidharan and Mr. M. Murali Reddy. The\r\nterms and conditions of the agreement for sale of the suit property\r\nwere recorded by the original Defendant U.N. Krishnamurthy in his own\r\nhandwriting in a letter dated 11th November 2002 given by the original\r\nDefendant to the Respondent Plaintiff. </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. It is the case of the Respondent Plaintiff that the original Defendant agreed to sell the suit property to the Respondent Plaintiff\r\nfor a consideration of Rs.15,10,000/-, out of which sum of Rs.10,001/-\r\nwas paid by the Respondent Plaintiff to the original Defendant in\r\nadvance. It was further agreed between the parties, that the\r\nRespondent Plaintiff would get the sale deed registered on or before\r\n15th March 2003, upon payment of the full sale consideration. The\r\nagreement was allegedly witnessed by the real estate agent, Mr. N.\r\nAnjappa.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. According to the Respondent Plaintiff, the Respondent Plaintiff\r\napproached the original Defendant with the balance consideration\r\nseveral times and requested the original Defendant to execute the sale\r\ndeed in his favour, but the original Defendant kept postponing\r\nexecution of the sale deed on one pretext or the other.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. On or about 13th February 2003, the Respondent Plaintiff issued a\r\nlegal notice to the original Defendant through his lawyer stating that\r\nthe Respondent Plaintiff is ever ready and willing to perform his part of\r\nthe contract and called upon the original Defendant to execute the sale\r\ndeed in favour of Respondent Plaintiff after receiving the balance\r\nconsideration. By a letter dated 10th March 2003 sent in response to\r\nthe aforesaid legal notice, the original Defendant denied having\r\nentered into any oral sale agreement for sale of the suit property.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. On 8th October 2005, the Respondent Plaintiff allegedly\r\napproached the original Defendant with a request to receive the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">balance consideration and to execute the sale deed in favour of the\r\nRespondent Plaintiff. It is alleged that the original Defendant went\r\nback upon his promise and refused to accede to the request made by\r\nthe Respondent Plaintiff.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11. In the circumstances, on or about 17th October 2005, the\r\nRespondent Plaintiff filed the suit. The original Defendant filed a written\r\nstatement denying the allegations in the plaint. In the written\r\nstatement, the original Defendant denied the execution of any\r\nagreement for sale of the suit property for consideration of\r\nRs.15,10,000/- as alleged.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12. The original Defendant has categorically stated that he did not\r\nagree to sell the suit property to the Respondent Plaintiff as alleged\r\nand that he did not receive any advance on 11th November 2002 as\r\nalleged or on any other date. It is the case of the Appellants that there\r\nwas no concluded contract to sell the suit property. In the written\r\nstatement it is also pleaded that in any case, the Respondent Plaintiff\r\nwas never ready or willing to perform his part of the contract. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. It is well settled that, in a suit for Specific Performance of an\r\nagreement, it is for the Plaintiff to prove his readiness and willingness\r\nto perform his obligations under the agreement. Where a certain\r\namount has been paid in advance and the balance is required to be\r\npaid within a stipulated time, it is for the Plaintiff to show that he was\r\nin a position to pay the balance money. The Plaintiff has to prove that\r\nhe has the money or has alternatively made necessary arrangements\r\nto get the money. In this case, the Original Defendant/Appellants have\r\nall along contended that the Plaintiff Respondent neither offered to pay\r\nnor was in a position to pay the balance consideration of\r\nRs.15,00,000/-.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. The primary question for determination is whether the\r\nRespondent Plaintiff has proved his readiness and willingness to\r\nperform his part of the contract or not?<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. Section 16 (c) of the Specific Relief Act, 1963 bars the relief of\r\nspecific performance of a contract in favour of a person, who fails to\r\naver and prove his readiness and willingness to perform his part of\r\ncontract. In view of Explanation (i) to clause (c) of Section 16, it may\r\nnot be essential for the plaintiff to actually tender money to the\r\ndefendant or to deposit money in Court, except when so directed by\r\nthe Court, to prove readiness and willingness to perform the essential\r\nterms of a contract, which involves payment of money. However,\r\nexplanation (ii) says the plaintiff must aver performance or readiness\r\nand willingness to perform the contract according to its true\r\nconstruction.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. To aver and prove readiness and willingness to perform an\r\nobligation to pay money, in terms of a contract, the plaintiff would\r\nhave to make specific statements in the plaint and adduce evidence\r\nto show availability of funds to make payment in terms of the\r\ncontract in time. In other words, the plaintiff would have to plead\r\nthat the plaintiff had sufficient funds or was in a position to raise\r\nfunds in time to discharge his obligation under the contract. If the\r\nplaintiff does not have sufficient funds with him to discharge his\r\nobligations in terms of a contract, which requires payment of money, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the plaintiff would have to specifically plead how the funds would be\r\navailable to him. To cite an example, the plaintiff may aver and\r\nprove, by adducing evidence, an arrangement with a financier for\r\ndisbursement of adequate funds for timely compliance with the terms\r\nand conditions of a contract involving payment of money. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>33. In a suit for Specific Performance of a contract, the Court is\r\nrequired to pose unto itself the following questions, namely:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Whether there is a valid agreement of sale binding on both\r\nthe vendor and the vendee and</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) Whether the Plaintiff has all along been and still is ready and\r\nwilling to perform his part of the contract as envisaged under\r\nSection 16(c) of the Specific Relief Act, 1963.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. There is a distinction between readiness and willingness to\r\nperform the contract and both ingredients are necessary for the relief\r\nof Specific Performance. In His Holiness Acharya Swami Ganesh\r\nDassji v. Sita Ram Thapar cited by Mr. Venugopal, this Court said\r\nthat there was a difference between readiness and willingness to\r\nperform a contract. While readiness means the capacity of the Plaintiff\r\nto perform the contract which would include his financial position,\r\nwillingness relates to the conduct of the Plaintiff. The same view was\r\ntaken by this Court in Kalawati v. Rakesh Kumar<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>38. In this case, we cannot overlook the fact that the suit property is\r\nlocated in the industrial town of Hosur located about 30/40 kms. from\r\nBengaluru. The Court is obliged to take judicial notice of the\r\nphenomenal rise in the price of real estate in Hosur. The proposition\r\nfinds support from case reported in K.S. Vidyanadam v. Vairavan\r\n(supra). To quote this Court <i>“we cannot be oblivious to reality – and\r\nthe reality is constant and continuous rise in the values of urban\r\nproperties -fuelled by large scale migration of people from rural areas\r\nto urban centres and by inflation.”</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>43. In Saradamani Kandappan (supra) this Court reiterated that</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i)\r\nwhile exercising discretion in suits for Specific Performance, the Courts\r\nshould bear in mind that when the parties prescribed a time for taking\r\ncertain steps or for completion of the transaction, that must have some\r\nsignificance and therefore time/period prescribed cannot be ignored;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) the Courts will apply greater scrutiny and strictness when\r\nconsidering whether purchaser was ready and willing to perform his\r\npart of the contract and</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) every suit for Specific Performance need\r\nnot be decreed merely because it is filed within the period of limitation,\r\nby ignoring time limits stipulated in the agreement. The courts will\r\nalso frown upon suits which are not filed immediately after the\r\nbreach/refusal. The fact that limitation is three years does not mean\r\nthat a purchaser can wait for one or two years to file a suit and obtain\r\nSpecific Performance. The three year period is intended to assist the\r\npurchaser in special cases, as for example where the major part of the\r\nconsideration has been paid to the vendor and possession has been\r\ndelivered in part performance, where equity shifts in favour of the\r\npurchaser.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>45. The Respondent Plaintiff has relied upon the notice dated\r\n13.02.2003 and evidences of PW2 & PW3 to prove that he was always\r\nready and willing to perform his part of the contract. Even though it\r\nmay be true that the Respondent Plaintiff had deposited the balance\r\nsale consideration in court on 06.04.2010, it cannot be ignored that\r\nsuch deposit was made by him seven years after 15.3.2003, being the\r\ndate by which the sale had to be concluded. No evidence has been\r\nadduced on behalf of the Respondent Plaintiff as to how the\r\nRespondent Plaintiff was in a position to pay or make arrangements for\r\npayment of the balance sale consideration within time. The Courts\r\nbelow also erred in not adjudicating upon this vital issue except to\r\nmake a sweeping observation that, given that the Respondent Plaintiff\r\nwas a businessman he had sources to arrange the balance funds.\r\nCareful study of balance sheet dated 31.03.2003 of the Respondent\r\nPlaintiff would demonstrate that he did not have sufficient funds to\r\ndischarge his part of contract.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>46. It is settled law that for relief of specific performance, the Plaintiff\r\nhas to prove that all along and till the final decision of the suit, he was\r\nready and willing to perform his part of the contract. It is the bounden\r\nduty of the Plaintiff to prove his readiness and willingness by adducing <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">evidence. This crucial facet has to be determined by considering all\r\ncircumstances including availability of funds and mere statement or\r\naverment in plaint of readiness and willingness, would not suffice.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">47. In this case, the Respondent Plaintiff has failed to discharge his\r\nduty to prove his readiness as well as willingness to perform his part of\r\nthe contract, by adducing cogent evidence. Acceptable evidence has\r\nnot been placed on record to prove his readiness and willingness.\r\nFurther, it is clear from the Respondent Plaintiff’s balance sheet that he\r\ndid not have sufficient funds to discharge his part of contract in March\r\n2003. Making subsequent deposit of balance consideration after lapse\r\nof seven years would not establish the Respondent Plaintiff’s readiness\r\nto discharge his part of contract. Reliance may be placed on Umabai\r\nv. Nilkanth Dhondiba Chavan (supra) where this Court speaking\r\nthrough Justice SB Sinha held that deposit of amount in court is not\r\nenough to arrive at conclusion that Plaintiff was ready and willing to\r\nperform his part of contract. Deposit in court would not establish\r\nPlaintiff’s readiness and willingness within meaning of section 16(c) of\r\nSpecific Relief Act</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>48. It is, therefore, patently clear that the Respondent Plaintiff has\r\nfailed to prove his readiness to perform his part of contract from the date of execution of the agreement till date of decree, which is a\r\ncondition precedent for grant of relief of specific performance. This\r\nCourt finds that the Respondent Plaintiff was not entitled to the relief of\r\nspecific performance.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>50. In Bhavyanath v. K.V. Balan\r\n21\r\n cited by Mr. Raju to contend that\r\nthe Respondent Plaintiff was entitled to relief of specific performance\r\nand the courts had rightly granted such relief, the Plaintiff had filed the\r\nsuit for specific performance three days after the last day for execution\r\nof the sale deed. In this case however, the Respondent Plaintiff waited\r\nfor nearly 3 years and filed the suit for specific performance just before\r\nexpiry of the limitation period. Furthermore, in Bhavyanath v. K.V.\r\nBalan (supra) the Plaintiff had adduced cogent evidence to prove his\r\nreadiness and willingness to discharge his part of the contract and to\r\nprove that he had sufficient funds to discharge his obligation. No such\r\nevidence has been adduced by the Respondent Plaintiff in this case\r\neither to show his readiness or to prove that sufficient funds were\r\navailable with him to enable him to discharge his part of contract.\r\nTherefore, Bhavyanath v. K.V. Balan (supra) is of no assistance to\r\nthe Respondent Plaintiff.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>51. In view of foregoing, this Court is of the considered opinion that\r\nthe Respondent Plaintiff was not entitled to the relief of specific\r\nperformance. The Trial Court and the High Court erred both in law and\r\non facts in granting such relief.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>52. The appeal is accordingly allowed. The impugned judgment of\r\nthe High Court and the judgment and decree of Trial court are\r\naccordingly set aside. The Appellants shall return the earnest money\r\nto the Respondent Plaintiff, within 4 weeks from today with interest at\r\nthe rate of 7% per annum from the date of deposit of the same, till the\r\ndate of refund. It will also be open to the Respondent Plaintiff to\r\nwithdraw the deposit if any of the balance consideration in Court.\r\nParties to bear their own costs.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'af219d120275d7b34199d153f37e12bc.jpg', '9f5485e6d62081219fa5f50a8bb7ade0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-14', 1, '', '', '2022-07-13 17:17:04', '2022-07-14 12:25:11'),
(1942, 'XhYTpELz2xeZ9VXzPM70h8atz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Demarcation of land in the Master Plan for road widening would not vest the land with the State/BDA. State/BDA cannot seek relinquishment of such land as a pre-condition for plan sanction without paying compensation. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Srivatsa Developers and others Vs The Bangalore Development Authority and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 48258 of 2022 decided on 27 May 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The petitioners No.3 to 11 claim to be the owners of the land bearing Sy.Nos.175(P) and 176(P) of the Begur Hobli, Bilekahalli, Bangalore South Taluk. The petitioners No.1 and 2 had entered into a Joint Development Agreement to develop the said lands and had applied to respondent No.1 for approval of the plan for the construction of a commercial office complex. A plan was sanctioned on 23.06.2008. However, respondent No.1 prevailed upon the petitioners to execute a relinquishment deed as a pre-condition for sanction of a plan and issuance of a commencement certificate. The petitioners being under duress and being constrained were forced to execute the relinquishment deed in pursuance of which the plan was sanctioned and the petitioners were permitted to go on with the construction.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. On 10.08.2017, respondent No.2-BBMP issued a notice calling upon the petitioners to clear the lands said to be relinquished claiming that the said land was relinquished free of cost and as such, the land now belongs to the BBMP [BDA having transferred to the BBMP]. It is aggrieved by the said notice, the petitioners are before this Court seeking the aforesaid reliefs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Sri.Manian K.B.S., learned counsel for the petitioners would submit that:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.1.<span style=\"white-space:pre\">	</span>the only manner in which a property of a citizen of the country can be taken possession of by the State or any instrumentality of the State is by acquisition or requisition of the land. Apart from the same, there is no other methodology which has been provided under law for any authority to take possession of the land belonging to a private citizen;<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.2.<span style=\"white-space:pre\">	</span>that the land though demarcated in the revised master plan for the widening of a road, the widening of the road itself is subject to acquisition of the land by making payment of compensation in terms of applicable law and it is only thereafter that the road could be formed. The petitioners as such have no objection for the widening of the road so long as the land is acquired and due compensation is paid;<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.3.<span style=\"white-space:pre\">	</span>he further relies upon the decision of this Court in DR.ARUN KUMAR B.C., VS. STATE OF KARNATAKA AND OTHERS reported in (2022) 2 KLJ 553 and submits that the issue raised in the present petition has already been decided by this Court and similar endorsement as the impugned endorsement issued by the BBMP has been quashed by this Court. He, therefore, submits that similar orders could be passed;<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>9. I am in complete agreement with the decision of Shri Hemanth Chandanagoudar J in Dr.Arun Kumar’s case supra. Only to add that the State or any instrumentality of the State cannot by holding back the sanction of the plan or the like force an owner of the property to execute a relinquishment deed or the like inasmuch as the State would be literally blackmailing the citizen of the country to execute the relinquishment deed by threatening non-sanction of the plan until a relinquishment deed is executed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>10. It cannot be contended that the present petition is barred by principles of estoppel. There cannot be estoppel against a Statute. When the Statute requires that a person can be deprived of property only in accordance with the law, the same not having been done in the present case, BBMP or BDA cannot be heard to say that the execution of a relinquishment deed estopps the petitioner from filing the present petition. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>11. It is the contention that there is an estoppel by conduct of parties, I am of the considered opinion that the conduct on part of the petitioner was forced by the BDA and was a result of duress exercised by the BDA. There is no element of fair play in the scene.  This falls foul of the decision of the Apex Court in the case of Commissioner of Income Tax, Madras vs. V.Mr.P.Firm Muar reported in 1961 SC 1216 and Union of India vs. N.Murugesan reported in 2021 (3) SLJ 401 (SC). I am further unable to accede to the contention of Smt.Sarita Kulkarni, learned counsel for respondent No.2 that the petitioner’s conduct amounts to approbation and reprobation inasmuch as it is the BDA who has acted in a manner contrary to law to coerce the petitioner to execute a relinquishment deed under a threat that without execution of the said deed, the plan sanction would not be granted depriving the petitioner and exercise of ownership right over his property. The said action on part of the BDA being in the absence of any sanction of law without legal authority or support of competent legislation as enumerated under Article 300A of the Constitution of India, the contention that the principles of estoppel applies  or  that  amounts  to  approbation  and reprobation on the part of the petitioner is liable to be rejected.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>13. In the present case, as could be seen, there is no compensation which has been paid by the State, BDA or BBMP to the petitioners for so called relinquishment inasmuch as the relinquishment has been executed as a pre-condition for the sanction of the plan which is not permissible. Such a pre-condition not being recognized under any law in force. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>14. Mere demarcation of land for widening of a road in the Revised Master Plan (RMP) would not vest the land in the state or the BDA. It only declares as intention or a proposal to widen the road at that particular location. In the event of the State or BDA wanting to widen the road or carry out any developmental activities requiring  land or property of a citizen of a country, the said State or any instrumentality of the State cannot violate the rights of the citizen of the country more particularly those guaranteed under Article 300A of the Constitution of India. In such circumstances, the only power which can be exercised by the State or any instrumentality of the State is the power of eminent domain for acquisition or requisition of the land by awarding compensation in terms of applicable law as on the date of such acquisition or requisition being made. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>15. In the present case, no acquisition having been made and no compensation having been paid, I am of the considered opinion that the relinquishment deed which has  been  obtained  on  the  condition  that  only thereafter plan would be sanctioned is not sustainable. The execution of a relinquishment deed cannot be a quid pro quo for such sanction of plan, the relinquishment not having been mandated under any law in force. No such mandate can be made since for the process of sanction of plan does not require any such relinquishment, the law contemplated that the plan has to be in terms of the building laws and the requisite fee be paid, which has been complied with by the Petitioners, there being no grievance on this aspect by the Respondents.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>ORDER:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>i.<span style=\"white-space:pre\">	</span>The Writ Petition is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>iii.<span style=\"white-space:pre\">	</span>The respondents are prevented from interfering with the right of the petitioners to enjoy the land of the petitioners.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '06bbafddcf5f4fd861dec849c741c783.JPG', '756c6bd2d8f28853c0af32fc40031087.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-14', 1, '', '', '2022-07-13 17:57:32', '2022-07-14 13:54:33');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1946, '3xDwkJtcLdVPI8ePFngvTLaf7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Specific Relief Act. Readiness. Fact that limitation is three years does not mean that purchaser can wait till the end of limitation to file a suit for specific performance. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">U.N. Krishnamurthy Thr LRS Vs  A.M. Krishnamurthy.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 4703 of 2022 decided on 12 July 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Indira Banerjee and Justice Hrishikesh Roy.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. This Appeal is against a final judgment and decree dated 30th October 2017 passed by the High Court of Judicature at Madras, dismissing the Appeal Suit No. 262 of 2011 filed by the Appellants and confirming a judgment and order and decree dated 30th November <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2010 passed by the Principal District Judge, Krishnagiri, hereinafter referred to as “the Trial Court” in Original Suit No. 30 of 2005 filed by the Respondent Plaintiff, for specific performance of an agreement for sale of the suit property.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">4. In the plaint, it is pleaded that the original Defendant U.N. Krishnamurthy’s father, U.R. Narasaiah had executed a will on or about 9th May 1984, bequeathing the suit property to the original Defendant, U.N. Krishnamurthy (since deceased). After the death of his father, U.R. Narasaiah, on 25th April 1987, the original Defendant U. N. Krishnamurthy became the absolute owner of the suit property.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">5. It is the case of the Appellants that on 11th November 2002, while the original Defendant was getting the suit property whitewashed, a real estate agent Mr. N. Anjappa approached the original Defendant with an offer to arrange the sale of the suit property at a good price.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">6. As per the pleadings in the plaint, the original Defendant agreed to sell the suit property to the Respondent Plaintiff, in the presence of Mr. N. Anjappa, Mr. S.A. Muralidharan and Mr. M. Murali Reddy. The terms and conditions of the agreement for sale of the suit property were recorded by the original Defendant U.N. Krishnamurthy in his own handwriting in a letter dated 11th November 2002 given by the original Defendant to the Respondent Plaintiff. </span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">7. It is the case of the Respondent Plaintiff that the original Defendant agreed to sell the suit property to the Respondent Plaintiff for a consideration of Rs.15,10,000/-, out of which sum of Rs.10,001/- was paid by the Respondent Plaintiff to the original Defendant in advance. It was further agreed between the parties, that the Respondent Plaintiff would get the sale deed registered on or before 15th March 2003, upon payment of the full sale consideration. The agreement was allegedly witnessed by the real estate agent, Mr. N. Anjappa.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">8. According to the Respondent Plaintiff, the Respondent Plaintiff approached the original Defendant with the balance consideration several times and requested the original Defendant to execute the sale deed in his favour, but the original Defendant kept postponing execution of the sale deed on one pretext or the other.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">9. On or about 13th February 2003, the Respondent Plaintiff issued a legal notice to the original Defendant through his lawyer stating that the Respondent Plaintiff is ever ready and willing to perform his part of the contract and called upon the original Defendant to execute the sale deed in favour of Respondent Plaintiff after receiving the balance consideration. By a letter dated 10th March 2003 sent in response to the aforesaid legal notice, the original Defendant denied having entered into any oral sale agreement for sale of the suit property.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">10. On 8th October 2005, the Respondent Plaintiff allegedly approached the original Defendant with a request to receive the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">balance consideration and to execute the sale deed in favour of the Respondent Plaintiff. It is alleged that the original Defendant went back upon his promise and refused to accede to the request made by the Respondent Plaintiff.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">11. In the circumstances, on or about 17th October 2005, the Respondent Plaintiff filed the suit. The original Defendant filed a written statement denying the allegations in the plaint. In the written statement, the original Defendant denied the execution of any agreement for sale of the suit property for consideration of Rs.15,10,000/- as alleged.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12. The original Defendant has categorically stated that he did not agree to sell the suit property to the Respondent Plaintiff as alleged and that he did not receive any advance on 11th November 2002 as alleged or on any other date. It is the case of the Appellants that there was no concluded contract to sell the suit property. In the written statement it is also pleaded that in any case, the Respondent Plaintiff was never ready or willing to perform his part of the contract. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">21. It is well settled that, in a suit for Specific Performance of an agreement, it is for the Plaintiff to prove his readiness and willingness to perform his obligations under the agreement. Where a certain amount has been paid in advance and the balance is required to be paid within a stipulated time, it is for the Plaintiff to show that he was in a position to pay the balance money. The Plaintiff has to prove that he has the money or has alternatively made necessary arrangements to get the money. In this case, the Original Defendant/Appellants have all along contended that the Plaintiff Respondent neither offered to pay nor was in a position to pay the balance consideration of Rs.15,00,000/-.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">22. The primary question for determination is whether the Respondent Plaintiff has proved his readiness and willingness to perform his part of the contract or not?<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">24. Section 16 (c) of the Specific Relief Act, 1963 bars the relief of specific performance of a contract in favour of a person, who fails to aver and prove his readiness and willingness to perform his part of contract. In view of Explanation (i) to clause (c) of Section 16, it may not be essential for the plaintiff to actually tender money to the defendant or to deposit money in Court, except when so directed by the Court, to prove readiness and willingness to perform the essential terms of a contract, which involves payment of money. However, explanation (ii) says the plaintiff must aver performance or readiness and willingness to perform the contract according to its true construction.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">25. To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money. </span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">33. In a suit for Specific Performance of a contract, the Court is required to pose unto itself the following questions, namely:-</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(i) Whether there is a valid agreement of sale binding on both the vendor and the vendee and</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(ii) Whether the Plaintiff has all along been and still is ready and willing to perform his part of the contract as envisaged under Section 16(c) of the Specific Relief Act, 1963.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">34. There is a distinction between readiness and willingness to perform the contract and both ingredients are necessary for the relief of Specific Performance. In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar cited by Mr. Venugopal, this Court said that there was a difference between readiness and willingness to perform a contract. While readiness means the capacity of the Plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the Plaintiff. The same view was taken by this Court in Kalawati v. Rakesh Kumar<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">38. In this case, we cannot overlook the fact that the suit property is located in the industrial town of Hosur located about 30/40 kms. from Bengaluru. The Court is obliged to take judicial notice of the phenomenal rise in the price of real estate in Hosur. The proposition finds support from case reported in K.S. Vidyanadam v. Vairavan (supra). To quote this Court <i>“we cannot be oblivious to reality – and the reality is constant and continuous rise in the values of urban properties -fuelled by large scale migration of people from rural areas to urban centres and by inflation.”</i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><span style=\"font-weight: bolder;\"><br></span></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">43. In Saradamani Kandappan (supra) this Court reiterated that</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(i) while exercising discretion in suits for Specific Performance, the Courts should bear in mind that when the parties prescribed a time for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored;</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(ii) the Courts will apply greater scrutiny and strictness when considering whether purchaser was ready and willing to perform his part of the contract and</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(iii) every suit for Specific Performance need not be decreed merely because it is filed within the period of limitation, by ignoring time limits stipulated in the agreement. The courts will also frown upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for one or two years to file a suit and obtain Specific Performance. The three year period is intended to assist the purchaser in special cases, as for example where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">45. The Respondent Plaintiff has relied upon the notice dated 13.02.2003 and evidences of PW2 & PW3 to prove that he was always ready and willing to perform his part of the contract. Even though it may be true that the Respondent Plaintiff had deposited the balance sale consideration in court on 06.04.2010, it cannot be ignored that such deposit was made by him seven years after 15.3.2003, being the date by which the sale had to be concluded. No evidence has been adduced on behalf of the Respondent Plaintiff as to how the Respondent Plaintiff was in a position to pay or make arrangements for payment of the balance sale consideration within time. The Courts below also erred in not adjudicating upon this vital issue except to make a sweeping observation that, given that the Respondent Plaintiff was a businessman he had sources to arrange the balance funds. Careful study of balance sheet dated 31.03.2003 of the Respondent Plaintiff would demonstrate that he did not have sufficient funds to discharge his part of contract.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">46. It is settled law that for relief of specific performance, the Plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the Plaintiff to prove his readiness and willingness by adducing <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">47. In this case, the Respondent Plaintiff has failed to discharge his duty to prove his readiness as well as willingness to perform his part of the contract, by adducing cogent evidence. Acceptable evidence has not been placed on record to prove his readiness and willingness. Further, it is clear from the Respondent Plaintiff’s balance sheet that he did not have sufficient funds to discharge his part of contract in March 2003. Making subsequent deposit of balance consideration after lapse of seven years would not establish the Respondent Plaintiff’s readiness to discharge his part of contract. Reliance may be placed on Umabai v. Nilkanth Dhondiba Chavan (supra) where this Court speaking through Justice SB Sinha held that deposit of amount in court is not enough to arrive at conclusion that Plaintiff was ready and willing to perform his part of contract. Deposit in court would not establish Plaintiff’s readiness and willingness within meaning of section 16(c) of Specific Relief Act</span><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">48. It is, therefore, patently clear that the Respondent Plaintiff has failed to prove his readiness to perform his part of contract from the date of execution of the agreement till date of decree, which is a condition precedent for grant of relief of specific performance. This Court finds that the Respondent Plaintiff was not entitled to the relief of specific performance.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">50. In Bhavyanath v. K.V. Balan 21 cited by Mr. Raju to contend that the Respondent Plaintiff was entitled to relief of specific performance and the courts had rightly granted such relief, the Plaintiff had filed the suit for specific performance three days after the last day for execution of the sale deed. In this case however, the Respondent Plaintiff waited for nearly 3 years and filed the suit for specific performance just before expiry of the limitation period. Furthermore, in Bhavyanath v. K.V. Balan (supra) the Plaintiff had adduced cogent evidence to prove his readiness and willingness to discharge his part of the contract and to prove that he had sufficient funds to discharge his obligation. No such evidence has been adduced by the Respondent Plaintiff in this case either to show his readiness or to prove that sufficient funds were available with him to enable him to discharge his part of contract. Therefore, Bhavyanath v. K.V. Balan (supra) is of no assistance to the Respondent Plaintiff.<br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">51. In view of foregoing, this Court is of the considered opinion that the Respondent Plaintiff was not entitled to the relief of specific performance. The Trial Court and the High Court erred both in law and on facts in granting such relief.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">52. The appeal is accordingly allowed. The impugned judgment of the High Court and the judgment and decree of Trial court are accordingly set aside. The Appellants shall return the earnest money to the Respondent Plaintiff, within 4 weeks from today with interest at the rate of 7% per annum from the date of deposit of the same, till the date of refund. It will also be open to the Respondent Plaintiff to withdraw the deposit if any of the balance consideration in Court. Parties to bear their own costs.</span></p>', '1d6010d31ad7dc323845605439d4da77.jpg', 'fa31d4d9163870acaf400813fa94081f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-15', 1, '', '', '2022-07-14 02:50:01', '2022-07-15 10:26:25'),
(1944, 'JmSW7R7LrI9VjVZQUGKmq0ziT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Plaintiff cannot be permitted to join any party as a defendant who may not be necessary and/or proper parties at all on the ground that the plaintiffs is the dominus litus. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Asian Hotels (North) Ltd Vs Alok Kumar Lodha and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3703-3750 of 2022 decided on 12 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.0. Feeling aggrieved and dissatisfied with the impugned common judgment and order  dated 15.09.2021 passed by the High Court of Delhi in respective applications in respective Commercial Suits under Order 1 Rule 10 and Order 6 Rule 17 of the Code of Civil Procedure, by which, all the aforesaid applications submitted on behalf of the original plaintiff, the High Court has allowed the said applications and has permitted the original plaintiff to amend the respective suits and has also ordered impleadment of mortgagees (Banks), original defendant no.1 ­Asian Hotels (North) Limited has preferred the present appeals.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.1. That the appellant herein granted licenses for individual shops at the premises from 1983 onwards to various shopkeepers including the respondent herein – original plaintiff. On 29.5.2020 the original plaintiff as a licensor served a revocation of license notice. Similar notices were also served on other licensees. Therefore, the respective licensees had instituted the respective suits before the Delhi High Court against the appellant – licensor – Asian Hotels (North) Limited seeking a decree of declaration that the license in favour of the plaintiff in respect of shop/ premises is irrevocable and perpetual and the purported revocation of the License by the defendant is illegal, void and bad in the eyes of law. A decree is also sought for a declaration declaring that the plaintiff has unfettered right to occupy and use the said premises / shop under the irrevocable license till the documents of transfer / conveyance are executed by the defendant.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>3.2. That the appellant – defendant appeared before the High Court. The defendant raised verbal objection that the suit   is   not   maintainable in view of Section 8 of   the Arbitration and Conciliation Act, 1996. The High Court vide order dated 21.07.2020 dismissed the suits with liberty to the parties to avail remedy of arbitration in view of the arbitration clause in the license agreement on the verbal plea. The order passed by the High Court dismissing the suits with the above liberty was a subject matter of appeal before the Division Bench. The Division Bench allowed the said appeal and remanded the matter. Liberty was granted to the defendant to  prefer an application under Section 8 of the Arbitration and Conciliation Act, 1996. It is reported that such an application is filed   by   the  defendant and is pending adjudication. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>3.3. During the pendency of the aforesaid suit, the plaintiff filed present IA No. 5174 of 2021 under Order 6 Rule 17 of the Code of Civil Procedure seeking amendment of the plaint, by which, the plaintiff proposed to amend the suit challenging various mortgages created by the defendant hotel, in favour of certain banks. In the said application, it is the case on behalf of the plaintiff that the mortgages created  by the defendant in favour of the Financial Institutions /Banks are illegal and void ab­initio to the extent it encumbers the interest held by the plaintiff in the said premises from 2.9.1991. Therefore, consequential amendments were sought to be made pertaining  to the rights  of the plaintiff. By the said application, prayer clause is also sought to be amended seeking a decree of declaration against the defendant that the mortgages including the mortgage deeds which have been executed in favour of the Banks is void and illegal to the extent it encumbers any right, title and interest of the plaintiff in the subject premises.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>3.5. Both the aforesaid applications were opposed by the defendant on the ground  that </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(i) the mortgage in question was in 1980’s; there is no challenge to the said mortgage in the present suit and therefore, the same cannot be permitted now;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(ii) the plaintiff has no right against the banks and financial institutions and therefore, amendment application does not lie;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(iii) that the prayer of the plaintiff for the relief of declaration and rights in the suit property have to first be adjudicated before any relief can be claimed against the proposed defendants no.2 to 7 and it is only after the plaintiff is successful in claiming any right in the property that the issue of adjudication of the rights of the third parties would arise;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(iv) that in view of the arbitration clause in the agreement between the parties, the suit is liable to be stayed for which an appropriate application has been filed by the defendant, which is pending adjudication.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>3.6. By the Impugned common judgment and order and mainly relying upon the decision of this Court in the case of  Kasturi v.  Iyyamperumal & Ors reported in (2005) 6  CC   733  and in the case of  Revajeetu Builders and Developers vs  Narayanaswamy   and Sons  &  Ors  reported   in   (2009)  10  SCC  85, the High Court has allowed both the applications i.e. application under Order 6 Rule 17 of the Code of Civil Procedure and application under Order 1 Rule 10 of the Code of Civil Procedure.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.1. It is vehemently submitted by Shri Rohatgi, learned Senior Advocate that appellant granted license for individual shops at the premises from 1983 onwards to various shopkeepers including the respondents herein. That prior thereto, on 23.09.1982 appellant created mortgages in favour of financial institutions /banks. The said mortgages were rolled over, refinanced and replaced from time to time for ensuring  the continuous development of the Hotel Projects / premises which requires consistent upkeep, renovations, upgradation from time to time. It is contended that clause 13 of the License Agreement recognizes and preserves the power of the appellant (lessor) to create and continue mortgages. It is submitted that clause 13 has been retained in every renewal (every five years) and as such respondents who are  licensees have  continuously  ratified  all mortgages from 1982 onwards by signing the License Agreement and subsequent renewals. It is submitted that licenses have been revoked on 29.5.2020 by the appellant. It is urged that at this belated stage it is not open for the respondents who are only licensees and whose licenses have been revoked to challenge the mortgages created by the appellant created in favour of various banks/ financial institutions which have been continued since 1982 onwards. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.2. It is further submitted by Shri Rohatgi, learned Senior Advocate that as such in view of the arbitration clause in the license agreement, suits are not maintainable in view of Section 8 of the Arbitration and Conciliation Act. That application filed by the appellant – original plaintiff to stay the suits are pending adjudication. Therefore, as such the said application/s under Section 8 of the Arbitration and Conciliation Act are to be decided first. It is further submitted that while pleadings were completed and Section 8 application was part­heard, respondents filed the present applications in April 2020 to implead the Banks holding mortgage over the premises and amend their plaints  seeking to challenge such mortgages. It is submitted that the learned Single Judge as such, without issuing any notice or granting an opportunity to file reply, heard arguments and reserved the judgment which has been pronounced on 15.09.2021.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.5. It is submitted that the respondents – original plaintiffs are strangers to the mortgage on the premises created by and between the appellant and its lenders. Respondents – original plaintiffs have no privity with the mortgagee banks/ financial institutions. The suits themselves are based on the License Agreement executed with the appellant and the rights contained thereunder.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.6. It is further submitted that the suits originally sought declarations that the respondents are irrevocable licenses or alternatively  owners. Thus, the suits preferred by the plaintiffs only concern the inter­se rights between the appellant and the respondent, with which the banks/ financial institutions impleaded by the impugned judgment have no concern. But the impugned judgment has resulted in mis­joinder  of parties  and causes of action which is incorrect in law.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.10. It is further submitted by Shri Rohatgi, learned Senior Advocate that challenge to mortgage / charges now is barred by limitation, delay and laches. This is because the first mortgage was created on the premises on 23.09.1982. By the amendment applications, the principal relief sought to be added by the respondents is to assail any and all charges / mortgages on the premises created since 1982 in favour of any person. It is submitted that first mortgage on the premises was registered on 23.09.1982 with the RoC as per Section 125 of the Companies Act, 1956. Subsequent charges / mortgages were also registered with the RoC. It is submitted that as per Section 126 of the Companies Act, 1956 and Section 80 of the 2013 Act, the respondents are deemed to have knowledge and constructive notice of the   said mortgage/ charges and there exists a presumption in law that the respondents had knowledge of the aforesaid charges. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.11. It is submitted that clause 13 of the License Agreements expressly records the knowledge of the respondents of the existing charges on the premises and also authorizes creation of further charges in the future. It is submitted that this understanding has been renewed and reaffirmed by the parties in the subsequent Renewal Agreements. Therefore, the respondents have knowledge of the mortgages in view of statutory presumption and express stipulation in Clause 13 of the License Agreement since 1982, which negates the assertion that respondents acquired knowledge by pleadings filed in the proceedings before the High Court. It is further submitted that considering Article 58, Schedule I of the Limitation Act, the prayer to challenge mortgages /charges would be clearly barred by law of limitation and therefore, liable to be rejected.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.1. By the impugned orders, the High Court has allowed the applications filed by the original plaintiffs under Order 6 Rule 17 and Order 1 Rule 10 of the Code of Civil Procedure permitting the original plaintiffs to amend their respective plaints so as to declare void ab­initio all the mortgages / charges on the entire premises in question and also implead mortgagee banks / financial institutions for that purpose. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">7.2. At the outset, it is required to be noted that mortgages have been created in favour of different mortgage banks/ financial institutions  since 1982 onwards  which  have been extended and / or rolled over, refinanced   and replaced from time to time. The mortgages are created not only with respect to the shops / premises occupied by the original plaintiffs, but with respect to the entire premises / Hyatt Residency Hotel. The respective original plaintiffs are granted licenses for individual shops which are part of entire premises. According to the appellant, first mortgage was created in the year 1982. At that time, none of the original plaintiffs were license holders. They have been granted license for individual shops at the premises from 1983 onwards to various shopkeepers including respondents­ original plaintiffs. The appellant, being owner – licensor, has terminated the respective licenses granted in favour of respective license holders – original plaintiffs. The revocation of the license is subject matter of respective suits. Therefore, the only controversy / issue in the respective suits is with respect to revocation of the respective licenses. By way of an amendment of the plaint the plaintiffs now want to challenge the  mortgages / charges on the entire premises created by the appellant. As such, the original plaintiffs are not at all concerned with the mortgages created by the appellant which is required for the continuous development of the hotel. By the purported amendment, the original plaintiffs have now prayed to declare that all the mortgages / charges created on the premises as void ab­initio. Even such a prayer can be said to be too vague. How the original plaintiffs can now can be permitted to challenge various mortgages /charges created from time to time. At this stage, it is required to be noted that even under the License </font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Agreement (clause 13) the Licensor shall have the right to create charges / mortgages as and by way of first charge on its land, premises and the buildings (including shops) constructed and to be constructed, in favour of financial institutions and banks as security for their terms loan advanced / to be advanced to the licensor for the  completion of its hotel project. Therefore, in fact original plaintiffs being the licensee are aware that there shall be charges / mortgages on the entire premises and the buildings including the shops. In that view of the matter, now after a number of years, plaintiffs cannot be permitted to challenge the mortgages / charges created on the entire premises including shops.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.0. From the impugned order passed by the High Court, it appears that what has weighed with the High Court is that plaintiffs, is the dominus litus and heavy reliance is placed in the case of  Kasturi (supra). However, the principle that the plaintiffs is the dominus litus shall be applicable only in a case where parties sought to be added as defendants are necessary and / or proper parties. Plaintiffs cannot be permitted to join any party as a defendant who may not be necessary and / or proper parties at all on the ground that the plaintiffs is the dominus litus.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.1. Even otherwise, High Court has materially erred in relying upon the decision in the case of Kasturi (supra). In the case of Kasturi (supra) before this Court the suit was for specific performance of the agreement to sell and the subsequent purchasers purchased the very property for which decree for specific performance was sought. Therefore, on facts said decision is not applicable to the facts of the case on hand. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. In view of the above and  for the reasons stated above, High Court has committed serious error in allowing the application under Order 6 Rule 17 and under Order 1 Rule 10 of the Code of Civil Procedure by permitting original plaintiffs to amend the plaint including prayer clause by which, the plaintiffs have now prayed to declare the charges / mortgages on the entire premises as void­ab initio and permitting the original plaintiffs to join / implead the respective banks / financial institutions as party defendant. The alleged rights of the plaintiffs as  perpetual license holders are yet to be adjudicated upon. The licenses of the original plaintiffs have been revoked. Therefore, in a suit  challenging revocation of the respective licenses, the plaintiffs cannot be permitted to challenge the respective mortgages / charges created on the entire premises as void ab­initio. It is the case on behalf of the appellant that apart from the fact that first charge was created in the year 1982, thereafter said mortgages have been rolled over, refinanced and replaced from time to time for ensuring the continuous  development of the Hotel Project / premises which requires consistent upkeep, renovation and upgradation from time to time.  Under  the circumstances, the impugned orders passed by the High Court allowing the application under Order 6 Rule 17 and under Order 1 Rule 10 of the Code of Civil Procedure are unsustainable, both on facts as well as on law. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. In view of above and for the reasons stated above, all these appeals succeed. The impugned orders passed by the High Court allowing the application under Order 6 Rule 17 and Order 1 Rule 10 of the Code of Civil Procedure in respective suits preferred by the respondents herein original plaintiffs are hereby quashed and set aside. Present appeals are allowed accordingly,<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>However, there shall be no order as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ef757c0848027f3e13c0c426ea12d761.jpg', 'bf5851aa67d396050187fed6b5a9ca16.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-15', 1, '', '', '2022-07-13 18:54:26', '2022-07-15 08:23:48');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1956, 'mOsgR6LejDZgENVSegGAIkCUv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Obtaining power of attorney from property owner and selling the property to third party does not by itself amount to cheating unless obtaining the power of attorney was with an intention to deceive the owner. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Dhanalakshmi Murali Rajan and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 2386 of 2019 decided on 4 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The charge sheet is filed for the offences punishable under Sections 420, 504, 506(B) read with Section 34 of IPC alleging that petitioner No.1/accused under the pretext of looking after the complainant got executed a power of attorney and affidavit in her favour. Subsequently without taking care of the complainant, the petitioner No.1 has entered into a sale agreement with one Mr.Ramachandraiah and received a sum of Rs.1,00,000/- and thereby has committed the aforesaid offence.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Learned counsel for the petitioners submits that as on the date of filing of the complaint, the complainant had divested herself of the subject property by executing a registered deed of cancellation in favour of the original owner.  He further submits that the allegation made in the complaint even accepting on the face of it, does not constitute the commission of the offence alleged against the petitioners-accused. He further submits that the complaint is not maintainable for not having complied with Section 154 Cr.P.C. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Learned HCGP and learned counsel appearing for respondent No.2 submit that petitioner No.1 fraudulently got executed a power of attorney on the pretext of looking after her, but has not looked after her and has executed an agreement of sale in favour of Mr.Ramachandraiah by receiving a sum of Rs.1,00,000/- as advance sale consideration, thereby committed the offences as aforesaid. The Police after investigation have rightly filed the charge sheet and the same does not warrant interference.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The perusal of the complaint discloses that the allegation against petitioner/accused No.1 is that she fraudulently got executed a power of attorney in her favour on the pretext of looking after the complainant and by misusing the power of attorney has executed an agreement of sale in favour of Mr.Ramachandraiah and received a sum of Rs.1,00,000/- and thereby committed the aforesaid offences. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. The perusal of the power of attorney indicates that the complainant had executed the power of attorney since she was not in a position to manage the property due to her old age.  There is no recital in the power of attorney that the power of attorney was executed in favour of accused No.1 only on the ground that accused No.1 was required to look after her during her old age.  In order to constitute the offence punishable under Section 420 of IPC, there must be specific allegation that from inception, there must be a dishonest intention on the part of the accused to cheat the complainant. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. In the present case, there is no specific allegation that from the date of execution of power of attorney in favour of accused No.1, there was dishonest intention on the part of petitioner No.1/accused. In the absence of essential ingredients so as to constitute the offence punishable under Section 420 of IPC, the charge sheet filed against the petitioner No.1/accused is without any substance.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 9. The perusal of the Police complaint filed under Section 200 Cr.P.C indicates that there is no compliance under Section 154 of Cr.P.C. The complainant having not complied with Section 154(1) and 154(3) of Cr.P.C., the complaint filed by the second respondent is not maintainable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">10. The complainant has executed registered cancellation deed dated 27.07.2013 divesting herself of all the rights over the subject property in favour of the original owner as on the date of filing of the suit. The complainant had no subsisting right interest over the subject property. In the absence of any loss or injury caused to the complainant, the filing of the complaint for the offences punishable under Section 420 of IPC is impermissible.<br></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space: pre;\">	</span>The Criminal petition is allowed.</b></font><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5af45d041811109605c3e5e991661c20.jpeg', '15cb248325fb85f66ed407e1a1bbe7c1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-16', 1, '', '', '2022-07-16 01:05:28', '2022-07-16 13:56:41'),
(1947, '2suT5FCS4wTGJaOwNPANxdWvi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Specific Relief Act. Payment of an insignificant advance amount as against considerable sale price, will not entitle purchaser to discretionary equitable relief of specific performance. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">U.N. Krishnamurthy Thr LRS Vs  A.M. Krishnamurthy.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 4703 of 2022 decided on 12 July 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Indira Banerjee and Justice Hrishikesh Roy.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. This Appeal is against a final judgment and decree dated 30th October 2017 passed by the High Court of Judicature at Madras, dismissing the Appeal Suit No. 262 of 2011 filed by the Appellants and confirming a judgment and order and decree dated 30th November <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2010 passed by the Principal District Judge, Krishnagiri, hereinafter referred to as “the Trial Court” in Original Suit No. 30 of 2005 filed by the Respondent Plaintiff, for specific performance of an agreement for sale of the suit property.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">4. In the plaint, it is pleaded that the original Defendant U.N. Krishnamurthy’s father, U.R. Narasaiah had executed a will on or about 9th May 1984, bequeathing the suit property to the original Defendant, U.N. Krishnamurthy (since deceased). After the death of his father, U.R. Narasaiah, on 25th April 1987, the original Defendant U. N. Krishnamurthy became the absolute owner of the suit property.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">5. It is the case of the Appellants that on 11th November 2002, while the original Defendant was getting the suit property whitewashed, a real estate agent Mr. N. Anjappa approached the original Defendant with an offer to arrange the sale of the suit property at a good price.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">6. As per the pleadings in the plaint, the original Defendant agreed to sell the suit property to the Respondent Plaintiff, in the presence of Mr. N. Anjappa, Mr. S.A. Muralidharan and Mr. M. Murali Reddy. The terms and conditions of the agreement for sale of the suit property were recorded by the original Defendant U.N. Krishnamurthy in his own handwriting in a letter dated 11th November 2002 given by the original Defendant to the Respondent Plaintiff. </span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">7. It is the case of the Respondent Plaintiff that the original Defendant agreed to sell the suit property to the Respondent Plaintiff for a consideration of Rs.15,10,000/-, out of which sum of Rs.10,001/- was paid by the Respondent Plaintiff to the original Defendant in advance. It was further agreed between the parties, that the Respondent Plaintiff would get the sale deed registered on or before 15th March 2003, upon payment of the full sale consideration. The agreement was allegedly witnessed by the real estate agent, Mr. N. Anjappa.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">8. According to the Respondent Plaintiff, the Respondent Plaintiff approached the original Defendant with the balance consideration several times and requested the original Defendant to execute the sale deed in his favour, but the original Defendant kept postponing execution of the sale deed on one pretext or the other.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">9. On or about 13th February 2003, the Respondent Plaintiff issued a legal notice to the original Defendant through his lawyer stating that the Respondent Plaintiff is ever ready and willing to perform his part of the contract and called upon the original Defendant to execute the sale deed in favour of Respondent Plaintiff after receiving the balance consideration. By a letter dated 10th March 2003 sent in response to the aforesaid legal notice, the original Defendant denied having entered into any oral sale agreement for sale of the suit property.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">10. On 8th October 2005, the Respondent Plaintiff allegedly approached the original Defendant with a request to receive the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">balance consideration and to execute the sale deed in favour of the Respondent Plaintiff. It is alleged that the original Defendant went back upon his promise and refused to accede to the request made by the Respondent Plaintiff.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">11. In the circumstances, on or about 17th October 2005, the Respondent Plaintiff filed the suit. The original Defendant filed a written statement denying the allegations in the plaint. In the written statement, the original Defendant denied the execution of any agreement for sale of the suit property for consideration of Rs.15,10,000/- as alleged.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12. The original Defendant has categorically stated that he did not agree to sell the suit property to the Respondent Plaintiff as alleged and that he did not receive any advance on 11th November 2002 as alleged or on any other date. It is the case of the Appellants that there was no concluded contract to sell the suit property. In the written statement it is also pleaded that in any case, the Respondent Plaintiff was never ready or willing to perform his part of the contract. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">21. It is well settled that, in a suit for Specific Performance of an agreement, it is for the Plaintiff to prove his readiness and willingness to perform his obligations under the agreement. Where a certain amount has been paid in advance and the balance is required to be paid within a stipulated time, it is for the Plaintiff to show that he was in a position to pay the balance money. The Plaintiff has to prove that he has the money or has alternatively made necessary arrangements to get the money. In this case, the Original Defendant/Appellants have all along contended that the Plaintiff Respondent neither offered to pay nor was in a position to pay the balance consideration of Rs.15,00,000/-.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">22. The primary question for determination is whether the Respondent Plaintiff has proved his readiness and willingness to perform his part of the contract or not?<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">24. Section 16 (c) of the Specific Relief Act, 1963 bars the relief of specific performance of a contract in favour of a person, who fails to aver and prove his readiness and willingness to perform his part of contract. In view of Explanation (i) to clause (c) of Section 16, it may not be essential for the plaintiff to actually tender money to the defendant or to deposit money in Court, except when so directed by the Court, to prove readiness and willingness to perform the essential terms of a contract, which involves payment of money. However, explanation (ii) says the plaintiff must aver performance or readiness and willingness to perform the contract according to its true construction.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">25. To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money. </span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">33. In a suit for Specific Performance of a contract, the Court is required to pose unto itself the following questions, namely:-</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(i) Whether there is a valid agreement of sale binding on both the vendor and the vendee and</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(ii) Whether the Plaintiff has all along been and still is ready and willing to perform his part of the contract as envisaged under Section 16(c) of the Specific Relief Act, 1963.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">34. There is a distinction between readiness and willingness to perform the contract and both ingredients are necessary for the relief of Specific Performance. In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar cited by Mr. Venugopal, this Court said that there was a difference between readiness and willingness to perform a contract. While readiness means the capacity of the Plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the Plaintiff. The same view was taken by this Court in Kalawati v. Rakesh Kumar<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">38. In this case, we cannot overlook the fact that the suit property is located in the industrial town of Hosur located about 30/40 kms. from Bengaluru. The Court is obliged to take judicial notice of the phenomenal rise in the price of real estate in Hosur. The proposition finds support from case reported in K.S. Vidyanadam v. Vairavan (supra). To quote this Court <i>“we cannot be oblivious to reality – and the reality is constant and continuous rise in the values of urban properties -fuelled by large scale migration of people from rural areas to urban centres and by inflation.”</i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><span style=\"font-weight: bolder;\"><br></span></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">43. In Saradamani Kandappan (supra) this Court reiterated that</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(i) while exercising discretion in suits for Specific Performance, the Courts should bear in mind that when the parties prescribed a time for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored;</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(ii) the Courts will apply greater scrutiny and strictness when considering whether purchaser was ready and willing to perform his part of the contract and</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(iii) every suit for Specific Performance need not be decreed merely because it is filed within the period of limitation, by ignoring time limits stipulated in the agreement. The courts will also frown upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for one or two years to file a suit and obtain Specific Performance. The three year period is intended to assist the purchaser in special cases, as for example where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">45. The Respondent Plaintiff has relied upon the notice dated 13.02.2003 and evidences of PW2 & PW3 to prove that he was always ready and willing to perform his part of the contract. Even though it may be true that the Respondent Plaintiff had deposited the balance sale consideration in court on 06.04.2010, it cannot be ignored that such deposit was made by him seven years after 15.3.2003, being the date by which the sale had to be concluded. No evidence has been adduced on behalf of the Respondent Plaintiff as to how the Respondent Plaintiff was in a position to pay or make arrangements for payment of the balance sale consideration within time. The Courts below also erred in not adjudicating upon this vital issue except to make a sweeping observation that, given that the Respondent Plaintiff was a businessman he had sources to arrange the balance funds. Careful study of balance sheet dated 31.03.2003 of the Respondent Plaintiff would demonstrate that he did not have sufficient funds to discharge his part of contract.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">46. It is settled law that for relief of specific performance, the Plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the Plaintiff to prove his readiness and willingness by adducing <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">47. In this case, the Respondent Plaintiff has failed to discharge his duty to prove his readiness as well as willingness to perform his part of the contract, by adducing cogent evidence. Acceptable evidence has not been placed on record to prove his readiness and willingness. Further, it is clear from the Respondent Plaintiff’s balance sheet that he did not have sufficient funds to discharge his part of contract in March 2003. Making subsequent deposit of balance consideration after lapse of seven years would not establish the Respondent Plaintiff’s readiness to discharge his part of contract. Reliance may be placed on Umabai v. Nilkanth Dhondiba Chavan (supra) where this Court speaking through Justice SB Sinha held that deposit of amount in court is not enough to arrive at conclusion that Plaintiff was ready and willing to perform his part of contract. Deposit in court would not establish Plaintiff’s readiness and willingness within meaning of section 16(c) of Specific Relief Act</span><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">48. It is, therefore, patently clear that the Respondent Plaintiff has failed to prove his readiness to perform his part of contract from the date of execution of the agreement till date of decree, which is a condition precedent for grant of relief of specific performance. This Court finds that the Respondent Plaintiff was not entitled to the relief of specific performance.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">50. In Bhavyanath v. K.V. Balan 21 cited by Mr. Raju to contend that the Respondent Plaintiff was entitled to relief of specific performance and the courts had rightly granted such relief, the Plaintiff had filed the suit for specific performance three days after the last day for execution of the sale deed. In this case however, the Respondent Plaintiff waited for nearly 3 years and filed the suit for specific performance just before expiry of the limitation period. Furthermore, in Bhavyanath v. K.V. Balan (supra) the Plaintiff had adduced cogent evidence to prove his readiness and willingness to discharge his part of the contract and to prove that he had sufficient funds to discharge his obligation. No such evidence has been adduced by the Respondent Plaintiff in this case either to show his readiness or to prove that sufficient funds were available with him to enable him to discharge his part of contract. Therefore, Bhavyanath v. K.V. Balan (supra) is of no assistance to the Respondent Plaintiff.<br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">51. In view of foregoing, this Court is of the considered opinion that the Respondent Plaintiff was not entitled to the relief of specific performance. The Trial Court and the High Court erred both in law and on facts in granting such relief.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">52. The appeal is accordingly allowed. The impugned judgment of the High Court and the judgment and decree of Trial court are accordingly set aside. The Appellants shall return the earnest money to the Respondent Plaintiff, within 4 weeks from today with interest at the rate of 7% per annum from the date of deposit of the same, till the date of refund. It will also be open to the Respondent Plaintiff to withdraw the deposit if any of the balance consideration in Court. Parties to bear their own costs.</span></p>', '964f2d122b09186adcc8b327d899fae7.jpg', 'a30b6aa0f30abda200d90343c72e0205.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-14', 1, '', '', '2022-07-14 02:59:38', '2022-07-14 06:23:20');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1948, 'exAUgiTXDZReWju0si07zYVtX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Though litigation is not gambling yet there is an element of chance in every litigation. Time spent during litigation can be excluded in some cases even in the absence of any interim order. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Swami Samarth Sugars and Agro Industires Ltd Vs Loknete Marutrao Ghule Patil Dnyaneshwar Sahakari Sakhar Karkhana Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4021 of 2022 decided on 13 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Gupta and Justice V. Ramasubramanian.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. In the writ petitions, direction was sought that the Industrial\r\nEntrepreneur Memorandum2\r\n dated 8.9.2010 be derecognised/cancelled in view of the provisions of Clause 6C of the\r\nSugarcane (Control) Order, 19663\r\n. The challenge was inter alia on the\r\nground that the time limit for a new factory to be set up was 2 years\r\nand to commence production was within 4 years (2+4), but the\r\nappellant failed to take any effective steps to set up and commence\r\nproduction within such time frame contemplated by the Control Order.\r\nAnother ground was that the State of Maharashtra had issued a circular\r\non 03.12.2011 under Clause 6A of the Control Order that no sugar\r\nfactory shall be set up within the radius of 25 kms of any existing sugar\r\nfactory or any other new factory substituting the provisions that the\r\nminimum distance was for 15 kms existing on the date of grant of IEM,\r\ntherefore, the proposed sugar factory does not meet the norm of 25\r\nkilometers. Finally, it was contended that in the absence of steps for\r\nsetting up of a sugar factory and commencement of the commercial\r\nproduction, the IEM stands de-recognised by operation of the provision\r\nof the Control Order. Therefore, the grant of extensions to set up the\r\nsugar factory issued on 14.11.2018 followed by another extension of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">time and to change the location on 17.10.2019 by the Central\r\nGovernment was contrary to the Control Order.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3. The brief facts leading to the present appeals are that the existing\r\nsugar factory was set up in the year 1974, claiming to have more than\r\n15000 members with crushing capacity as 1250 M.T. in the year 1974-\r\n75 which was increased to 7000 M.T. per day in the year 2014-15. The\r\nsaid sugar factory had also set up a Distillery Plant, Co-generation\r\nPlant, Ethanol Plant and enhanced its crushing capacity of 6000 M.T.\r\nper day after a fresh IEM was issued on 01.05.2012.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. The appellant applied for IEM on 08.09.2010, the same was\r\nacknowledged by Government of India after Commissioner of Sugar,\r\nMaharashtra issued a certificate regarding aerial distance between the\r\nexisting sugar factory and the nearby proposed sugar factory in\r\nRamdoh (Warkhed), Tehsil- Newasa, District- Ahmednagar. It was\r\nreported that aerial distance between the sites of other sugar factories\r\nadjacent to the proposed sugar factory at Ramdoh (Warkhed), TehsilNewasa, District- Ahmednagar was more than 15 kms. On the basis of\r\nsuch certificate, IEM was acknowledged after the appellant furnished a\r\nbank guarantee of the sum of Rs. 1 crore which was to remain in force\r\nup to 04.04.2016.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5. However, a writ petition was filed soon thereafter on 23.09.2010,\r\nchallenging the IEM granted to the appellant on the ground of aerial\r\ndistance of proposed sugar factory and existing sugar factory. Another </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">it petition was filed on 17.03.2011 challenging the IEM on the ground\r\nthat the proposed sugar factory was not complying with the provisions\r\nof Environmental Protection Act, 1986.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The sugar industry was deleted from the list of industries requiring\r\ncompulsory licensing under the provisions of the Industries\r\n(Development and Regulation) Act, 1951 on 31.08.1998. However, the\r\ncondition of minimum distance of 15 kms as provided by the Control\r\nOrder issued under Section 3 of the Essential Commodities Act, 19554\r\nwas ordered to continue in order to avoid unhealthy competition\r\namongst sugar factories.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. The third writ petition was filed on or about 1.10.2020 by the existing\r\nsugar factory challenging the extension granted and change of location\r\npermitted by the Central Government on 14.08.2020. It was averred in\r\nthe writ petition that the area of operation of the said existing sugar\r\nfactory is 92 villages in Newasa Taluka and 122 villages in Shevgaon\r\nTaluka. In the counter affidavit filed on behalf of the appellant, it was\r\ninter alia averred that the existing sugar factory is trying to create its\r\nmonopoly in respect of its geographical zone while there is ample\r\nsugarcane available in the said area. The existing sugar factories are\r\nnot in a position to harvest the entire sugarcane cultivated in the area\r\non account of which the helpless farmers are forced to approach other\r\nsugar factories in the district for getting their sugarcane harvested.\r\nThe existing sugar factory had even opposed the setting up of a</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gangamai Industries and Construction Limited in Taluka Shevgaon by\r\nfiling a Writ Petition No. 3063 of 2009. The writ petition was dismissed\r\non 16.11.2009. It was also pointed out that the sugarcane is being\r\ncultivated in large area in view of the back waters of Jaikwadi Major\r\nIrrigation Project and that there is a need for setting up of a unit.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. The High Court on considering the respective contentions of the parties\r\nfound that the issue involved was the interpretation of Clause 6C of the\r\nControl Order. It was observed that subsequent to the amendment in\r\nthe Control Order by the State in the year 2011, the minimum aerial\r\ndistance between the new sugar factory and the existing sugar factory\r\nis 25 kms, as cluster of sugar factories near each other would not be a\r\nviable proposition and may affect the survival of the existing sugar\r\nfactory. Therefore, if a new sugar factory is allowed to be established\r\non the terms of the IEM issued in the year 2010, it would render the\r\nexisting sugar factory unviable and both sugar factories may not be in\r\na position to survive.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. The High Court further held that the appellant had not taken any\r\neffective steps within the period of two years from the date of\r\nacknowledgment of IEM. The appellant had neither purchased the land\r\nfor four years in the name of the factory, nor placed confirmed orders\r\nfor purchase of plant and machinery and even the civil work had not\r\ncommenced. There were no effective steps even five years of IEM. The\r\nchange of location was sought on 16.06.2014 whereas the land at the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">changed location was purchased on or about the year 2017. The High\r\nCourt found that the amendment in the Sugar Control Order dated\r\n24.08.2016 would not be helpful to the appellant as the IEM stood derecognized before the said amendment was carried out. The IEM stood\r\nde-recognized on 08.09.2014 as the four years for commercial\r\nproduction had lapsed. Thereafter, the maximum one-year extension\r\nalso lapsed on 08.09.2015. Therefore, the amended provision cannot\r\nbe applied to a de-recognized IEM. The High Court further found that\r\nthe recommendation of the State Government was not on record for\r\nthe extension of IEM. In other words, it was concluded by the High\r\nCourt that the IEM stood de-recognized before the Sugar Control Order\r\nwas amended on 26.08.2016. Therefore, no right accrues to the\r\nappellant. It was further held that the judgment of this Court reported\r\nas M/s Ojas Industries (P) Ltd v. M/s Oudh Sugar Mills Ltd.\r\n5\r\nrelating to retrospective effect of the amendment in the Control Order\r\nin the year 2006 would not be applicable to the present IEM which\r\nstood de-recognized prior to the said amendment.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. With this factual background, the questions required to be examined\r\nare as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Whether in the absence of any interim order against the\r\nappellant in the first round of litigation, the period during which\r\nwrit petitions were pending are liable to be excluded?\r\nAlternatively, whether the State/ Central Government was\r\njustified in excluding such period while granting extension of IEM.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) Whether the lis initiated against the appellant is a sufficient\r\nreason to exclude the period spent in such litigation and was a\r\nreasonable ground for the State/Central Government to extend\r\nIEM.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iii) Whether the amended Control Order in terms of proviso to\r\nClause 6C as amended by the State of Maharashtra on\r\n03.12.2011 would be applicable when the High Court in the\r\nearlier writ petition has held that the issue of Aerial Distance\r\nCertificate cannot be reopened at the instance of the appellant\r\nor any other party again. Pertinently, when the order was passed\r\nby the High Court, the amended Control Order was in force.\r\nTherefore, what is the effect of the said order?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iv) Whether the IEM stands lapsed on the failure on the part of\r\nentrepreneur to set up the sugar factory and start production\r\nwithin the time specified in Clause 6C or such lapsing would be\r\nonly after an order in terms of Clause 6D of the Control Order is\r\npassed?<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. With this undisputed factual and legal background, the first three\r\nquestions, which are interrelated are taken up for discussion first. The\r\nlatin maxim ‘Actus Curiae Neminem Gravabit’ i.e., the act of the Court\r\nwill not prejudice anyone, is well known, but the applicability of the\r\nsame to the facts of the present circumstances need to be examined.\r\nWe find that the appellant was justified in not taking any effective\r\nsteps pending such lis, as contemplated under Explanation 4 to Clause\r\n6A of the Control Order. The arial distance is one of the foremost\r\nrequirements for a valid IEM. This Court in a judgment reported as\r\nSouth Eastern Coalfields Ltd. v. State of M.P. and Others  held\r\nthat injury, if any, caused by the act of the Court shall be undone and\r\nthe gain which the party would have earned, unless it was interdicted\r\nby the order of the Court would be restored to or conferred on the\r\nparty by suitably commanding the party liable to do so. The Court\r\nnoticed that the litigation may turn into a fruitful industry. Though\r\nlitigation is not gambling yet there is an element of chance in every\r\nlitigation. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. In the present appeal, the lis initiated by the writ petitioners in the first\r\nround was nothing less than gamble so as to scuttle the process of\r\ncommissioning of plant. The appellant was at the receiving end of the\r\nwrit petitions filed and was at the receiving end of such litigation and\r\nthe period spent in such lis cannot be used against the appellant.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. In another judgment reported as Beg Raj Singh v. State of U.P. and\r\nOthers\r\n7\r\n, this Court held that ordinary rule of litigation is that the rights\r\nof the parties stand crystallized on the date of commencement of\r\nlitigation and the right to relief shall be decided by reference to the\r\ndate on which the petitioner entered the portals of the Court. That was\r\na case where the appellant was granted sand mining lease for a period\r\nof one year but before the expiry of the term of lease, the appellant\r\nsought renewal of lease for another period of two years. Around the\r\ntime when the appellant was allowed the extension of two years, the\r\nGovernment had taken a decision to hold an auction of the sand\r\nmining lease. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. In the said referred case, this Court was considering an application filed\r\nby multiple sugar mills in the State of Uttar Pradesh. That was a case\r\nwhere the proliferation of IEM to block the competition was the cause\r\nof dispute. The IEM filed by the appellant for setting up of a sugar mill\r\nat Village Baisagapur, Distt. Lakhimpur was acknowledged on\r\n13.05.2004, whereas the respondent in the said appeal filed its IEM on\r\n17.05.2004 for setting up of a sugar mill at Village Saidpur, Khurd,\r\nDistt. Lakhimpur which was at a distance of 7.2 kms from the proposed\r\nsugar mill of the appellant. The Government of India had approved the\r\nIEM filed by the appellant on 30.06.2005 whereas IEM filed by the\r\nrespondent was disapproved. The respondent filed a writ petition\r\nchallenging the IEM approved in favor of the appellant and another IEM\r\nin favor of the M/s Bajaj Hindustan Ltd. for setting up of a sugar mill at\r\nVillage Khambarkhera.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>35. This Court approved the IEM filed by M/s Balrampur Chini Mills Ltd. at\r\nVillage Kumbi, where it had invested Rs.213 crores for its plant. The\r\nsaid sugar factory had also invested Rs. 152 crores at Village Guleria.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>36. We find that the said judgment is relevant only to examine the\r\nquestion as to whether the Control Orders are retrospective or not. The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">finding about the distance while granting permission to Balrampur\r\nChini Mills is in the facts of that case. In the present appeal, after the\r\nIEM was acknowledged in the year 2010, no other entrepreneur had\r\neven sought or had been granted IEM in the area in question except\r\nthe existing sugar factory was permitted to enhance its crushing\r\ncapacity.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>37. In view of the principles laid down in the aforesaid judgment, the\r\namendments carried out subsequently in the Control Order would also\r\nbe read as retrospective as they are not creating any right for the first\r\ntime. Clauses 6A to 6E were inserted by the amendment on\r\n10.12.2006 to substitute the press notes which were found to be under\r\ncloud by this Court. Subsequent amendments on 24.08.2016 and\r\n12.10.2018 would also be retrospective being amendments dealing\r\nwith procedural aspects and clarificatory in nature in lieu of the press\r\nnotes issued earlier by the Central Government. Such amendments\r\nwere necessitated to take care of situation when IEM holder is not able\r\nto take effective steps because of unforeseen circumstances.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>42. Learned counsel for the appellant argued that Clause 6C contemplates\r\nthat if the steps are not taken within the timeline stipulated under the\r\nIEM, it shall stand de-recognized and the performance guarantee shall\r\nbe forfeited. However, the performance guarantee is liable to forfeiture\r\nafter giving the concerned person a reasonable opportunity of being\r\nheard. Therefore, the use of word ‘shall’ in Clause C does not make the\r\nprovision mandatory but enables the competent authority to forfeit\r\nbank guarantee on failure to comply with the timeline.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>44. The existing sugar factory had argued that IEM stands lapsed as the\r\nappellant has failed to set up the factory and to commence the\r\ncommercial production. However, we are unable to agree with such\r\ninterpretation. Though Clause 6C as applicable on 10.11.2006 as well\r\nas on 24.08.2016 and 12.08.2018 contemplates the IEM shall stand derecognised and the performance guarantee shall be forfeited, the\r\nperformance guarantee is to be forfeited in terms of Clause 6D after\r\nproviding the reasonable opportunity of being heard. We find that twin\r\nconditions have to be fulfilled-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) failure to set up plant and to\r\ncommence production and then</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) the forfeiture of the performance\r\nguarantee. Second will not arise unless the first is satisfied and the\r\nsecond step cannot be undertaken, without complying with an\r\nopportunity of personal hearing in terms of Clause 6D of the Control\r\nOrder. Unless the performance guarantee is forfeited, there is no\r\nlapsing of IEM. Thus, unless the necessary consequences of derecognition of IEM are undertaken, there is no automatic lapsing of IEM.\r\nSuch is the language in the subsequent amended Control Orders as\r\nwell. The appellant had furnished a performance guarantee of Rs. 1\r\ncrore, however no steps were taken either by the State Government or <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by the Central Government to forfeit such performance guarantee\r\ninasmuch as not even a show cause notice was issued. Thus, a\r\nconclusion cannot be drawn that the IEM is deemed to be lapsed\r\nautomatically only on account of lapsing of time.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">45. The State Government had filed an affidavit to provide information\r\nregarding the sugarcane available and the capacity of the sugar mills\r\nin the areas. It states that during the last five crushing seasons, four\r\nsugar mills i.e., the existing sugar factory and three other mills had\r\ncrushed the entire cane available from Newasa and Shevgaon Talukas\r\nand also crushed from neighbouring districts of Aurangabad, Jalana\r\nand Beed. It also stated that in the years 2016-17 and 2019-20, the\r\ncane was used for fodder purpose as crushing was less than the\r\navailable cane. It is stated that Newasa and Shevgaon Talukas are\r\ndrought prone and there is scarcity of sugarcane with regard to the\r\ncrushing capacity of four sugar mills. It submits that since sugarcane\r\narea restrictions (zoning) are removed in Maharashtra since the year\r\n1997, the sugarcane growers are at liberty to provide sugarcane to any\r\nsugar mills as per their choice. In view of the said fact, the appellant\r\ncannot be denied the benefit of setting up of a sugar mill only on the\r\nbasis of resistance from the competitor, who had only financial interest\r\nin mind. In case of a competition, it is the consumer (farmer) who is\r\nthe beneficiary. In the present case, the farmers are not getting the\r\nadvantage of competition which could fetch them timely payment and\r\nbetter services. In view of the said fact, we find that the order of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">High Court allowing the writ petition filed by the competitors is wholly\r\nunjust and unfair and is liable to be set aside.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>50. We also note the reasoning given by the Central Government that in\r\norder to avoid unhealthy competition, the licensing under the\r\nIndustries (Development and Regulation) Act, 1951 was done away\r\nwith on 31.08.1998. Unhealthy competition has two major aspects- one\r\nrelating to the existing and new sugar factory, and second in the\r\ncontext of the farmers. On account of competition between the existing\r\nand new sugar factory, it would be the farmers who will be the\r\nbeneficiary as they would have an option to select the sugar mill which\r\nprovides better service in the manner of payment of price. Keeping in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">view the recommendations of the Rangarajan Committee and the fact\r\nthat the Central Government has exercised its jurisdiction to grant\r\nextension in time, the ultimate beneficiary would be the farmer and not\r\nthe existing or the new sugar factory.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>51. Thus, we find the order of the High Court to be unsustainable.\r\nConsequently, the appeals are allowed and the writ petitions are\r\ndismissed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a3ff20bd53e05ff0d2bf6dd8207dbf4c.jpg', '7077e5b5b2a745b6616bd62929b26b2b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-15', 1, '', '', '2022-07-14 17:28:19', '2022-07-15 06:20:52'),
(1949, 'izzbCQb8MDgGFCN4YxhHVPqNd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Income Tax Act. Sufficiency or inadequacy of the reasons cannot be gone into while considering the validity of an act of authorization to conduct search and seizure except on the ground of the Wednesbury Principle of Reasonableness. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Principal Director of Income Tax (Investigation) and others Vs Laljibhai Kanjibhai Mandalia.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4081 of 2022 decided on 13 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemat Gupta and Justice V. Ramasubramanian.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The respondent in its writ petition challenged the act of authorization\r\nfor search and seizure on the ground that it is a fishing enquiry and the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">conditions precedent as specified in Section 132 of the Act are not\r\nsatisfied. It is the stand of the assessee that he was looking for an\r\navenue to invest some money and the M/s. Goan Recreation Clubs\r\nPrivate Ltd . was in need of finance for setting up of its business and\r\nhence consequently approached the assessee herein for a loan. As a\r\nsecurity, the borrower company offered that another company would\r\ngive its property to the assessee. It may be noticed that there is no\r\nallegation of mala-fides against the officers of the Revenue.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. In the counter-affidavit filed by the Revenue, giving the history of\r\ntransaction, it was stated that the “chain of events raised credible\r\ndoubt on the transaction entered into by the petitioner (assessee) with\r\nthe company in question as it is the familiar modus operandi being\r\npracticed by the entry operators”. It was also stated that the assessee\r\nwas not expected to comply with the notice of the Revenue as the\r\nassessee would have brought the alibi of jurisdiction to evade or not\r\ncomply with the notice. It was in the interest of revenue that it was not\r\nexpected to disclose to any outside agency/body or to any of the\r\nmembers directly or indirectly involved in the cob-web of financial\r\ntransactions with the core groups, viz. Sarju Sharma and associated\r\ngroup of companies. Any inkling of action contemplated by the\r\nRevenue was likely to compromise the confidentiality and secrecy of\r\nthe case intact. It was further stated that the apparent investment </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">made by the assessee was found to be not a judicious investment\r\nchoice from the point of view of a prudent businessman as the\r\ncompany to which loan was provided by the assessee had no\r\nestablished business, no goodwill in the market, nor was it enlisted in\r\nany of the stock exchanges, nor did the assessee had any financial\r\ndealings with the company previously. The quick repayment of loan\r\nshows that the investment was not meant to earn steady interest\r\nincome. The investment and nature of transaction entered into by the\r\nassessee was akin to the familiar modus operandi employed by the\r\nentry operators to provide an accommodation entry to bring the\r\nunaccounted black money to books for brief period to run the business\r\ntill sufficient fund is generated by running the business or some fund\r\nfrom any other unaccounted source comes later on. This is the angle of\r\nthe investigative process underway in which trail of the money being\r\npaid by the assessee is being investigated.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. The undisputed facts are that the assessee during the financial year\r\n2016-17 transferred a sum of Rs. 6 crores on 01.06.2016 and Rs. 4\r\ncrores on 21.06.2016 to M/s Goan Recreation Clubs Private Ltd. The\r\nassessee secured the loan by way of a mortgage of the property\r\nforming part of Survey No. 31/1-A situated in Village Bambolim, Distt.\r\nNorth Goa. It is an admitted fact that the assessee became the Director\r\nof the Company on 18.05.2016 and then ceased to be so on </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">23.06.2016. It is also admitted that amount of Rs.10 crores was repaid\r\non different dates starting from 06.10.2016 till 31.03.2017 and after\r\nrepayment of the loan, mortgage was released on 10.07.2017. The\r\nCompany paid interest as well. It is admitted that the assessee has\r\nfiled his income-tax return showing the interest income of\r\nRs.42,51,946/- which has been taxed as well. The assessment was\r\nfinalized under Section 143(3) of the Act on 02.03.2021. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. We have heard learned counsel for the parties and find that the view of\r\nthe High Court that the authorization to search the premises of the\r\nassessee is invalid, cannot be sustained. The expression “reasons to\r\nbelieve” is a component of many statutes such as in the case of\r\nreassessment of Income under the Act or its predecessor statute, the\r\nEssential Commodities Act, 1955; the Foreign Exchange Regulation Act,\r\n1973 as well as in respect of action of the Revenue in the matter of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">search and seizure.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. Seth Brothers is referred to by both Revenue and the assessee\r\nrelating to the act of search and seizure. It was held that the exercise\r\nof power is a serious invasion upon the rights, privacy and freedom of\r\nthe tax-payer. The power must be exercised strictly in accordance with\r\nlaw and only for the purposes for which law authorizes it to be\r\nexercised. The High Court had accepted that the correctness of the\r\nopinion actually formed by the Income Tax Officer was not open to\r\nscrutiny in a writ petition, but the search and seizure of documents and\r\nbooks of accounts held to be made in excess of the powers conferred\r\nupon the Income Tax Officer was mala fide. This Court found no merit\r\nin such finding in view of the sworn affidavits by the concerned Income\r\nTax Officers that they did in fact form the requisite opinion under\r\nSection 132 of the Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. In Partap Singh (Dr) v. Director of Enforcement , this Court was\r\nconsidering the action of search and seizure under the Foreign\r\nExchange Regulation Act,1973. It was held that when an officer of the\r\nEnforcement Department proposes to act under Section 37, he must\r\nhave reason to believe that the documents useful for investigation or\r\nproceeding under the Act are secreted. It was further held that the\r\nreasons must be sufficient for a prudent man to come to the conclusion\r\nthat income escaped assessment and that the Court can examine the\r\nsufficiency or adequacy of the reasons on which the Income Tax Officer\r\nhas acted.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. In a judgment reported as Union of India v. Agarwal Iron\r\nIndustries it was noticed that it is difficult to appreciate how the\r\ndenial in the counter-affidavit filed by the Revenue could be treated as\r\nan admission by implication to come to a conclusion that no reason\r\nwas ascribed for search and seizure and, therefore, action taken under\r\nSection 132 of the Act was illegal. The relevant confidential file, if\r\nrequired and necessary, could have been called for and examined. The\r\nRevenue in the counter-affidavit was not required to elucidate and\r\nreproduce the information and details that formed the foundation of\r\nsearch. It was further held that the issuance of search and seizure on\r\nthe basis of formation of opinion which a reasonable and prudent man\r\nwould form for arriving at a conclusion to issue a warrant was done by\r\nway of an interim measure.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. In Partap Singh, the action of search and seizure was found to be\r\nvalid. Though the stand of the Enforcement Directorate was that in\r\nview of the material seized during the search, it does not wish to take\r\nany further action, it was found that there was no warrant for the\r\nassertion that every search must result in seizure of incriminating\r\nmaterial. There can be cases in which search may fail or reasonable\r\nexplanation of the documents may be forthcoming. At this stage of\r\nsearch and seizure, the Court has to examine whether the reason to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">believe are in good faith; it cannot merely be pretence. The belief\r\nrecorded must have a rational connection or a relevant bearing to the\r\nformation of the belief and should not be extraneous or irrelevant to\r\nthe purpose of the section. In view of the detailed reasons recorded in\r\nthe satisfaction note including the investment made by the assessee\r\nfor brief period and that investment is alleged to be an accommodation\r\nentry, it cannot be said to be such which does not satisfy the prerequisite conditions of Section 132(1) of the Act.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">27. As per the Revenue, Clauses (b) & (c) of Section 132 (1) were satisfied\r\nbefore the warrant of authorization was approved. The satisfaction\r\nnote was recorded in terms of an assessee whose jurisdictional\r\nassessing officer was in the State of the West Bengal. It is the cobweb\r\nof accounts of such assessee which are required to be unravelled. It is\r\nnot unreasonable for the Revenue to apprehend that the assessee\r\nwould not respond to the summons before the Assessing Officer in the\r\nState of West Bengal. It was also alleged that such summons would\r\nlead to disclosure of information collected by the Revenue against\r\nSarju Sharma and his group. Therefore, it was a reasonable belief\r\ndrawn by the Revenue that the assessee shall not produce or cause to\r\nbe produced any books of accounts or other documents which would\r\nbe useful or relevant to the proceedings under the Act. Such believe\r\nwas not based upon conjectures but on a bona-fide opinion framed in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the ordinary conduct of the affairs by the assessee generally. The\r\nnotice to the assessee to appear before the Income Tax authorities in\r\nthe State of West Bengal would have been sufficient notice of the\r\nmaterial against the Company and its group, to defeat the entire\r\nattempt to unearth the cobweb of the accounts by the Company and\r\nits associates.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">28. Even clause (c) of Section 132(1) is satisfied. The assessee was in\r\npossession of Rs.10 crores which was advanced as loan to the\r\nCompany. The Revenue wishes to find out as to whether such amount\r\nis an undisclosed income which would include the sources from which\r\nsuch amount of Rs.10 crores was advanced as loan to a totally stranger\r\nperson, unconnected with either the affairs of assessee or any other\r\nlink, to justify as to how a person in Ahmedabad has advanced Rs.10\r\ncrores to the Company situated at Kolkata in West Bengal for the\r\npurpose of investment in Goa. The Revenue may fail or succeed but\r\nthat would not be a reason to interfere with the search and seizure\r\noperations at the threshold, denying an opportunity to the Revenue to\r\nunravel the mystery surrounding the investment made by the\r\nassessee.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32. In the light of judgments referred to above, the sufficiency or\r\ninadequacy of the reasons to believe recorded cannot be gone into\r\nwhile considering the validity of an act of authorization to conduct\r\nsearch and seizure. The belief recorded alone is justiciable but only\r\nwhile keeping in view the Wednesbury Principle of Reasonableness.\r\nSuch reasonableness is not a power to act as an appellate authority\r\nover the reasons to believe recorded. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>33. We would like to restate and elaborate the principles in exercising the\r\nwrit jurisdiction in the matter of search and seizure under Section 132\r\nof the Act as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i) The formation of opinion and the reasons to believe recorded is\r\nnot a judicial or quasi-judicial function but administrative in\r\ncharacter;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ii) The information must be in possession of the authorised official\r\non the basis of the material and that the formation of opinion\r\nmust be honest and bona fide. It cannot be merely pretence.\r\nConsideration of any extraneous or irrelevant material would\r\nvitiate the belief/satisfaction;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>iii) The authority must have information in its possession on the\r\nbasis of which a reasonable belief can be founded that the\r\nperson concerned has omitted or failed to produce books of\r\naccounts or other documents for production of which summons\r\nor notice had been issued, or such person will not produce such\r\nbooks of accounts or other documents even if summons or notice\r\nis issued to him; or</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>iv) Such person is in possession of any money, bullion, jewellery or\r\nother valuable article which represents either wholly or partly <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">income or property which has not been or would not be\r\ndisclosed;</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>v) Such reasons may have to be placed before the High Court in the\r\nevent of a challenge to formation of the belief of the competent\r\nauthority in which event the Court would be entitled to examine\r\nthe reasons for the formation of the belief, though not the\r\nsufficiency or adequacy thereof. In other words, the Court will\r\nexamine whether the reasons recorded are actuated by mala\r\nfides or on a mere pretence and that no extraneous or irrelevant\r\nmaterial has been considered; </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> vii) The question as to whether such reasons are adequate or not is\r\nnot a matter for the Court to review in a writ petition. The\r\nsufficiency of the grounds which induced the competent\r\nauthority to act is not a justiciable issue;</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">viii) The relevance of the reasons for the formation of the belief is to\r\nbe tested by the judicial restraint as in administrative action as\r\nthe Court does not sit as a Court of appeal but merely reviews </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">examine the sufficiency or adequacy thereof;</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>ix) In terms of the explanation inserted by the Finance Act, 2017\r\nwith retrospective effect from 1.4.1962, such reasons to believe\r\nas recorded by income tax authorities are not required to be\r\ndisclosed to any person or any authority or the Appellate\r\nTribunal.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>34. In view of the above, we find that the High Court was not justified in\r\nsetting aside the authorization of search dated 07.08.2018.\r\nConsequently, the appeal is allowed and the order passed by the High\r\nCourt is set aside. As a consequence thereof, the Revenue would be at\r\nliberty to proceed against the assessee in accordance with law.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '34fe4f4a003ea3a92ea0f75acd0feb31.jpeg', 'b894997fa68589d539f988796d5b4305.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-15', 1, '', '', '2022-07-14 17:50:18', '2022-07-15 12:27:08');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1950, '3oMjL1hUwePHrwgQKdCuH291G', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mere inducement to invest in money doubling scheme in the absence of dishonest intention to cheat the investor from the inception does not constitute either cheating or criminal breach of trust. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Samartha Raghava Nagabhushanam Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 2904 of 2022 decided on 1 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>FIR was lodged by the second respondent-complainant alleging that the petitioner-accused No.2, who is the Managing Director of Ivoryedge Technology Services Pvt. Ltd., induced him to invest a sum of Rs.3 crores in the said Company and he would get double the amount invested by him in the said Company and in pursuance of the same, a memorandum of understanding was executed between accused No.1, complainant and the Company. However, as per the agreement, the amount was invested by the second respondent and when the accused was not giving any information with regard to the investment made by him, he requested the accused to return the amount invested by him and the accused stating that due to COVID-19 the Company is suffering from loss and on the said pretext, kept postponing the payment of the said amount. The Police registered FIR against the accused for the offences under Sections 406 and 420 of IPC. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Sri Ashok S.Haranahalli, learned Senior Counsel appearing for the petitioner’s Counsel submits that the allegations made in the FIR even accepting on the face of it, utmost would amount to breach of terms and conditions contained in the agreement which is purely civil in nature, however, given the criminal texture. He further submits that the only allegation against the petitioner-accused No.2 is that he had induced the second respondent to invest and at his instance, he invested the amount in the Company which does not satisfy the essential ingredients so as to constitute the commission of the aforesaid offences. In support, he places reliance in Vijay Kumar Ghai and Others Vs. State of West Bengal and Others reported in 2022 SCC OnLine SC 344. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. On the other hand, learned HCGP submits that the allegations made in the FIR clearly disclose the commission of the cognizable offences and as such, police have registered the FIR and the same does not warrant any interference. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The only allegation as against the petitioner-accused No.2 is that at his instance, the second respondent invested the amount in the Company believing the words of accused No.2 and another accused that the amount invested by him would be doubled. Except the said allegation, there is no other allegation. To constitute the commission of offence punishable under Section 406 of IPC, there must be entrustment of money to accused No.2 which is alleged to have been misappropriated. In the present case, there is no entrustment of money to accused no.2 so as to constitute the commission of offence punishable under Section 406 IPC. To constitute the offence punishable under Section 420 IPC, there must be a specific allegation that from inception, there must be dishonest intention on the part of accused No.2 to cheat the second respondent. In the present case, there is no specific allegation that at the time of investment of money, there was a dishonest intention on the part of accused No.2 to cheat respondent No.2. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Even otherwise, the dispute between the parties arises out of breach of terms and conditions contained in the memorandum of understanding entered into between the second respondent, accused No.1 and the Company. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. The Hon’ble Apex Court in the case of Vijay Kumar Ghai (Supra) has held that a mere breach of contract is not in itself a criminal offence and gives rise to the civil liability of damages and even in a case where allegations are made in regard to failure on the part of the accused to keep up his promise, in the absence of a culpable intention at the time of making promise being absent, no offence under Section 420 of IPC can be said to have been made out. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. Hence, placing reliance on the above decision of the Apex Court, I am of the considered opinion that the allegation made against the petitioner-accused No.2 does not satisfy the essential ingredient so as to constitute commission of the offences alleged against him and also dispute between the parties arises out of breach of memorandum of understanding which has been given a criminal texture so as to pressurize the petitioner-accused No.2.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.  ORDER: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Criminal petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1a382c729a514a51a64ca3cb2cfc70b0.jpeg', '769e7380f202c8d8ea6e56f6cf7be8cf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-15', 1, '', '', '2022-07-14 18:09:34', '2022-07-15 13:54:40'),
(1952, '4RKtYuWfzKTcsD3fYVUUKq0Ag', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Person in possession of property based on sale deed executed by judgment debtor cannot be straightaway dispossessed without following the procedure under Order 21 Rule 97 CPC. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sarvinder Singh and another Vs Vipul Tandon.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ex.P. 95 of 2018 decided on 14 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Amit Bansal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The case set up by the Objector/ Vikram Badhwar HUF is that:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i. The father of the Objector purchased the ground and first floor of the\r\nsuit property vide Sale Deed dated 6th September, 1988, from Dr.\r\nSatyendra Singh, the father of the Decree Holder, Sarvinder Singh,\r\nthrough Smt. Nirmal Satyendra Singh, the mother of the decree\r\nholder.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ii. The father of the Objector entered into an Agreement to Sell dated\r\n29th August, 1993 with the mother of the Decree Holder for the\r\npurchase of the terrace of the suit property for a total consideration of\r\nRs. 4,41,000/-. In terms of the said agreement, Smt. Nirmal Satyendra\r\nSingh accepted Rs.2,00,000/- as advance money for the purchase of\r\nthe terrace of the suit property and a receipt was executed by her in\r\nfavour of the father of the Objector. Thereafter, the possession of one\r\nroom was given to the father of the Objector.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>iii. The Judgment Debtor got the letters of administration in his favour in\r\nrespect of the will of the mother of the Decree Holders vide judgment\r\ndated 13 August, 1997 passed by the District Judge.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>iv. A Sale Deed dated 25th February, 2002 was executed by the Judgment\r\nDebtor in favour of the Objector, in respect of the terrace of the suit\r\nproperty, on payment of the requisite stamp duty and the balance\r\nconsideration of Rs. 2,41,000/-.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\nv. The Objector carried out the construction on the terrace of the second\r\nfloor of the suit property, which was purchased by him from the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">mother of the Decree Holder, and shifted to the suit property in 2002.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>vi. In January 2002, a suit for permanent injunction in respect of the\r\nentire suit property including three floors, terrace with lawn and four\r\nservant quarters, was filed by the Decree Holders against the\r\nJudgment Debtor. The said suit was dismissed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>vii. On 1st June, 2005, Sarvinder Singh, the Decree Holder, filed an\r\napplication being MPC no. 93/2006 in PC No. 182/1996 before the\r\nDistrict Court, for revocation of the letters of administration granted\r\non 13th August, 1997. The said application was dismissed by the said\r\nCourt vide judgment dated 24th April, 2007.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>viii. The Objector applied for a loan from Punjab National Bank (PNB) in\r\n2008. The said bank carried out the due diligence of the suit property\r\nand thereafter, the Objector mortgaged the second floor of the suit\r\nproperty, which continues till date.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>xi. Thereafter, the Decree Holders filed a suit, being CS(OS) No.\r\n2453/2015 before this Court in August, 2015 against the Judgement\r\nDebtor, but they did not disclose that a part of the suit property had\r\nbeen sold to the Objector by the Judgment Debtor. A site map\r\ndescribing the property was also filed and the third floor in the suit\r\nproperty was deliberately withheld.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>xii. The Decree Holder filed an application under Order XII Rule 6 of the\r\nCPC in the said suit, wherein it was stated that the Judgment Debtor\r\nhas misused the property in question for about 20 years after the death\r\nof the mother of the Decree Holders and fraudulently sold some\r\nportions of the property owned by the mother of the Decree Holders\r\nand now the Decree Holders</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. It has been vehemently urged on behalf of the Objectors that the\r\nDecree Holders wrongfully took the possession of the suit property and that\r\nthe Decree Holders should have followed the procedure laid down under\r\nOrder XXI Rule 97 of the CPC to take possession of the suit property. Since\r\nthe Decree Holders were aware of the settled position of the Objectors in the\r\nsuit property, they could not have unilaterally taken possession of the suit\r\nproperty. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In this regard reliance is placed on the judgment of the Supreme\r\nCourt in Brahmdeo Choudhary Vs. Rishikesh Prasad Jaiswal & Anr.,\r\n(1997) 3 SCC 694.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">20. In view of the legal position elucidated by the aforesaid judgments, I </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">am of the view that the Decree Holders ought to have filed an application\r\nunder Order XXI Rule 97 of the CPC, so as to be put back in possession of\r\nthe portions of the suit property in occupation of the Objectors. It is a matter\r\nof record that the Objectors have been in a settled possession of the\r\naforesaid properties on the basis of registered Sale Deeds executed as far\r\nback in 1999 and 2002. The Decree Holders could not have unilaterally\r\ndispossessed the aforesaid Objectors, while seeking to execute the decree\r\ndated 3rd May, 2016 passed by this Court in a suit, where the Objectors were\r\ndeliberately not made parties despite the Decree Holders/plaintiffs being\r\naware of their possession of the aforesaid portions of the suit property. Even\r\nafter the decree was passed, no legal notice was served on the Objectors to\r\nvacate the property, nor were they made parties in the execution proceedings\r\nand straightaway they were dispossessed from the portions of the suit\r\nproperty, of which they had been in a settled occupation for a long period of\r\ntime.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. In the present case, the letters of administration were granted in\r\nfavour of the Judgment Debtor on 13th August, 1997. Based on the aforesaid\r\nletters of administration, the Objectors purchased the portions of the suit\r\nproperty, on the basis of registered Sale Deeds. It was only in the year 2005,\r\nmuch after the Sale Deeds were executed, that the Decree Holders took steps\r\nfor revocation of the grant of letters of administration, in which they eventually succeeded. But, in light of the aforesaid observations in Crystal\r\nDevelopers (supra), the bona fide intermediate acts of the administrator for\r\nthe purpose of administration of the estate have to be protected. Merely\r\nbecause the letters of administration granted in favour of the administrator\r\nwere set aside at a later point of time, would not undo or invalidate\r\nintermediate acts performed by the administrator, while the letters of\r\nadministration granted in his favour duly existed, unless the same are shown\r\nto be fraudulent or collusive. Whether there was collusion between the\r\nJudgment Debtor and the Objectors in executing the Sale Deed in favour of\r\nthe Objectors can only be proved in a trial. On a prima facie view, there is\r\nnothing to show that there was collusion between the Objectors and the\r\nJudgment Debtor, so as to create any doubt with regard to the Sale Deeds in\r\nfavour of the Objectors by the Judgment Debtor.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">28. It is clear from the reading of the above that a plea of adverse\r\npossession could be taken in the alternative, if the plea claiming ownership\r\nand the plea with regard to adverse possession is not based on inconsistent\r\nfacts. In the present case, the main contention of the Objectors is based on\r\ntitle derived from the Judgement Debtor. However, if the title of the\r\nJudgement Debtor is held to be not valid, then the alternative plea is based\r\non adverse possession. There is no inconsistency between the two </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">submissions. Therefore, the plea of adverse possession would be available to\r\nthe Objectors, if they are able to establish their adverse possession for more\r\nthan 12 years.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30. In view of the above, the applications of the Objectors are <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">maintainable under Order XXI Rule 99 and 101 of the CPC as well as under\r\nArticle 65 of the Limitation Act, 1963, for seeking declaration of their right,\r\ntitle and interest in the suit property on the basis of adverse possession.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">31. The fact of the matter is that the Decree Holders were well aware\r\nabout the possession of the third parties in the suit property in the year 2002\r\nand this is evidenced by the fact that a suit for permanent injunction was\r\nfiled on behalf of the Decree Holders in January, 2002. However, the Decree\r\nHolders deliberately did not implead any of such Objectors in the said\r\nproceedings, nor did they challenge the Sale Deeds executed in favour of\r\nsuch Objectors. Whether the objectors were in hostile possession of the\r\nproperty and whether they have acquired right, title and interest in the\r\naforesaid portions of the suit property is a matter of trial.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. Counsel for the Decree Holders has strongly relied upon the judgment\r\nof a Co-ordinate Bench of this Court in Haji Abdul Mateen (supra) to\r\ncontend that a pendente lite transferee has no protection in terms of Section\r\n52 of the TPA. He further contends that no exception has been carved out\r\nunder Section 52 of the TPA. Therefore, there is an absolute bar against\r\npendente lite transfer of a suit property, which can defeat the right of the\r\nsuccessful plaintiff.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. Counsel for the Decree Holders places reliance on Order XXI Rule\r\n102 of the CPC to contend that nothing contained in Order XXI Rules 98\r\nand 100 of the CPC would apply to an Objector to whom the Judgment\r\nDebtor has transferred the property after the institution of the suit in which\r\nthe decree was passed. The aforesaid provision recognises the doctrine of lis\r\npendens enshrined in Section 52 of the TPA. Therefore, if a person <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">purchases the property, which is a subject matter of a suit after the\r\ninstitution of the suit, doctrine of lis pendens would apply and the said\r\npurchaser cannot approach the Court under Order XXI Rules 98 and Rules\r\n100 of the CPC.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>34. Counsel for the Objector/Vikram Badhwar has placed reliance on the\r\njudgment of the Supreme Court in Thomson Press (India) Ltd. Vs. Nanak\r\nBuilders & Investors P.Ltd. & Ors., (2013) 5 SCC 396, to contend that\r\npendente lite transfer of a property is not void ab initio. Such a transfer is\r\neffective in transferring the title to the transferee, but such title shall remain\r\nsubservient to the rights of the transferor in the pending suit and subject to\r\nany decision that the Court may eventually pass.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>35. In this regard, it may be relevant to take note of certain dates. On 13th\r\nAugust, 1997, the letters of administration were granted in favour of the\r\nJudgment Debtor. On 15th February, 1999, a Sale Deed was executed in\r\nfavour of LRs of Late Shri Udayvir Viraj and Smt. Shakuntala Srivastava\r\nand on 25th February, 2002, a Sale Deed was executed in favour of the\r\nObjector, Vikram Badhwar. A suit for injunction is stated to have been filed\r\non behalf of the Decree Holders against the Judgment Debtor in January,\r\n2002. Merely because the said suit was pending when the Sale Deed dated\r\n25th February, 2002 was executed by the Judgment Debtor, will not make\r\nthe transfer void ab initio, but it shall remain subservient to the rights of\r\nDecree Holders in the suit filed by them. However, the said suit was\r\nultimately dismissed in May, 2002. Once the suit was dismissed, the\r\ndoctrine of lis pendens would also come to an end and it would not affect the\r\nvalidity of the Sale Deed dated 25th February, 2002 executed in favour of\r\nVikram Badhwar. In the case of Objectors/ LRs of Late Shri Udayvir Viraj\r\nand Smt. Shakuntala Srivastava, the Sale Deed was executed in 1999, which\r\nwas even before the filing of the said injunction suit.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36. The application for revocation of letters of administration granted in\r\nfavour of Vipul Tandon was only filed on 1st June, 2005, much after the\r\nexecution of the Sale Deeds, and the same was dismissed by the District\r\nCourt on 24th April, 2007. Of course, the Decree Holders succeeded in the\r\nappeal filed by them and ultimately the letters of administration granted in\r\nfavour of the Judgement Debtor were revoked. However, there was no lis\r\npending when the Sale Deeds were executed in favour of the Objectors.\r\nTherefore, the doctrine of lis pendens will have no application in the facts\r\nand circumstances of the present case.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>38. Counsel for the Objectors, Shakuntala Srivastava and LRs of Late\r\nShri Udayvir Viraj, submits that they were present in Court on 6th\r\nDecember, 2018, when this Court had granted time till 27th March, 2019 for\r\nthe Objectors to file their objections. Inadvertently, the appearance of the\r\ncounsel for the Objectors did not reflect in the order sheet. The fact that the\r\nObjectors, LRs of Late Shri Udayvir Viraj and Smt. Shakuntala Srivastava,\r\nwere present in Court on 6th December, 2018, has been admitted by the\r\nDecree Holders in paragraph 2 of the EA No.258/2019 filed by them.\r\nTherefore, in the light of the aforesaid facts, the said Objectors would also\r\nbe entitled to benefit of the order passed by the court on 6\r\nth December, 2018, <span style=\"font-size: 12pt;\">giving time to file their objections till 27th March, 2019. Admittedly, the\r\nobjections were filed by the said Objectors on 19th March, 2019 vide EA No.\r\n165/2019 and 166/2019 respectively.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>39. Counsel for the Decree Holders has contended that very fact that the\r\nObjectors were in possession of certified copies of the proceedings between\r\nthe Decree Holders and the Judgment Debtor, implies that the Objectors\r\nwere aware of the said proceedings. The Objectors have placed on record\r\ncertified copies of the proceedings initiated by the Decree Holders for\r\nrevocation of the letters of administration as well as the judgment dated 14th\r\nJanuary, 2011 passed in FAO No. 242/2007, whereby the appeal filed on\r\nbehalf of the Decree Holders against the grant of letters of administration in\r\nfavour of Judgment Debtor, was allowed. The certified copies placed on\r\nrecord by the Objectors shows that the Objectors were throughout aware of\r\nthe legal proceedings and yet did not take any steps to implead themselves\r\nas parties.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>40. This submission on behalf of the Decree Holders is vehemently\r\nopposed by the Objectors by contending that just because the certified\r\ncopies of court proceedings had been placed on record, does not show that\r\nthe Objectors themselves had applied for the said certified copies and were\r\ngranted the said certified copies on the date so mentioned therein. As per the\r\nObjectors, the said certified copies of the proceedings before the District\r\nCourt were obtained from the record in FAO No. 242/2007 filed before this\r\nCourt, after the Objectors came to know of the present proceedings. In fact,\r\nif the Objectors knew about the filing of the suit in which the decree was\r\npassed, the Objectors could have straightaway approached the Executing\r\nCourt by way of an application under Order XXI Rule 97 of the CPC</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>41. I am in agreement with the submission of the Objectors that just\r\nbecause the aforesaid photocopies of the certified copies in respect of the\r\nchallenge to the probate proceedings have been placed on record by the\r\nObjectors, does not show that the Objectors were aware of the said\r\nproceedings at the relevant point of time. It could be that the certified copies\r\nwere applied by the Judgment Debtor and later photocopies of the same had\r\nbeen provided to the Objectors. There is nothing to show that the Objectors\r\nhad obtained certified copies of these proceedings at the relevant point of\r\ntime.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>42. The Decree Holders have placed reliance on the order dated 13th\r\nDecember, 2019 passed by the DRT in SA No.319/2019, which was\r\npreferred by the Decree Holders, wherein it has been observed that the\r\nJudgment Debtor has no right to sell the suit property and therefore, the\r\nObjector cannot claim any ownership over the suit property. The aforesaid\r\nobservations have been made by the DRT only at a prima facie stage and\r\nthat too in a different proceeding. Therefore, reliance placed by the Decree\r\nHolders on the same is misplaced.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-size: 12pt;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>49. In light of the aforesaid discussion, I am of the prima facie view that\r\nthe manner in which the Decree Holders took possession of the properties <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">from the Objectors was ex facie unlawful. The Decree Holders were aware\r\nof the sale in favour of the Objectors and also the possession of the\r\nObjectors in the aforesaid portions of the suit property. Despite this\r\nknowledge, the Decree Holders did not implead the Objectors in the suit\r\nfiled by them. Even after the decree was passed, no legal notice was served\r\non the Objectors to vacate the property, nor were they made parties in the\r\nexecution proceedings and straightaway they were dispossessed from the\r\nportions of the suit property, of which they had been in a settled occupation\r\nfor a long period of time. Therefore, the Objectors have made out a case for\r\ngrant of status quo ante and are entitled to the restoration of possession of\r\nthe aforesaid portions of the suit.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '105b98a6214e53d03f5b80e93ea45297.jpg', '6fae3a0397d7419272bf9c0f7176e0ac.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-16', 1, '', '', '2022-07-15 17:06:33', '2022-07-16 12:25:21');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1953, 'eT1NuZ2FNiHQ5okaoT442U7Ie', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Opinion of the authority under the phrases ‘is satisfied’ or ‘is of the opinion’ or ‘if it has reason to believe’ or ‘if it considered necessary’ when can be considered as conclusive. Supreme Court explains. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Amarendra Kumar Pandey Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 11473-11474 of 2018 decided on 14 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Surya Kant and Justice J.B. Pardiwala.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts giving rise to this appeal may be summarized as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) The appellant herein (original writ petitioner) had joined the\r\nAssam Rifles as a Rifleman in the year 1993. While he was in service,\r\nhe came to be discharged vide order dated 31.01.2004 passed by Lt.\r\nCol Offg Comdt.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Thus, the aforesaid order of discharge was passed on the basis of\r\nthe four Red­Ink entries received by him during his period of service.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The Union of India being dissatisfied with  the  judgment and order passed by the learned Single Judge referred to above challenged the same by filing the writ appeal before the Division Bench of the Guwahati High Court. The Division Bench allowed the writ appeal filed by the Union of India and thereby set aside the order passed by the learned Single Judge referred to above. The Appeal Court while allowing the writ appeal filed by the Union of India essentially took the view that neither the Assam Rifles Act, 1941 under which the decision to discharge was taken nor the Assam Rifles Act, 2006 requires the authority to record any reasons or the satisfaction in the order of discharge itself. The Appeal Court took the view having regard to the provision of Clause 5 of the ROI 1/2004 that the Commandant has the discretion to discharge a person who has four or more Red Ink entries. All that is required is to serve a notice on the individual affording an opportunity to explain. The provision of Clause 5 does not require the Commandant to record the reasons of satisfaction in the order  of discharge.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">8. The learned Counsel appearing for the appellant vehemently submitted that the High Court committed a serious error in passing the impugned order. He would submit that there was no good reason for the Appeal Court to disturb the order passed by the learned Single Judge of the High Court.</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. The learned Counsel has broadly classified his submissions as under:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(a) Discharge is not mandatory even after four Red entries.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(b) There is a difference between cases of major misconducts and minor misconducts.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(c) In the order of discharge no reasons have been assigned.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> (d) The plea of malafide raised against the authority has not been considered. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">10. The learned Counsel appearing for the appellant invited the attention of this Court to the Record Office Instruction No. 4 of 1999 which provides for the procedure for discharge/retirement from service of Assam Rifles personnel.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14. In such circumstances referred to above, the learned Counsel prays that there being merit in his appeal the same be allowed and the impugned judgment and order passed by the High Court may be set aside including the order of discharge and the appellant   may   be ordered to be reinstated in service with all Full Back Wages and all other statutory benefits. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15. On the other hand, this appeal has been vehemently opposed by the learned Counsel appearing for the respondents. The learned Counsel would submit that no error not to speak of any error of law could be said to have been committed by the High Court in passing the impugned judgment and order. She would submit that the High Court was absolutely justified in taking the view that it was not necessary for the authority concerned to assign any reasons for the purpose of passing an order of discharge. The four Red Ink entries were sufficient for the authority to arrive at the subjective satisfaction that the appellant herein was not fit to be retained in service and more particularly being a Rifleman with the Assam Rifle.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the Division Bench of the High Court committed any error in passing the impugned order? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">22. We must first look into the decision of this Court rendered in the case of Virendra Kumar Dubey (supra). In the said case, the appellant Virendra Kumar Dubey was enrolled as an operator in the corps of Artillery of Indian Army on 27.09.1980. Having served in that capacity for nearly twelve years, he received a show cause notice pointing out that he had been awarded four Red Ink entries for various offences set out in the notice and that Virendra Kumar Dubey had become a habitual offender, thereby setting a bad example of indiscipline in the army. Virendra Kumar Dubey ultimately came to be discharged from service by an order dated 14.12.1992. He preferred a departmental appeal, which failed. He, thereafter, went to the High Court of Madhya Pradesh at Jabalpur, however, the High Court declined to entertain the petition on the ground of lack of territorial jurisdiction. He, thereafter, preferred an appeal before the Appeal Court and the writ appeal was </font></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ultimately ordered to be transferred to the Armed Forces Tribunal Regional Bench, Lucknow. The Tribunal  ultimately  dismissed the transferred petition which gave rise to the appeal before this Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">24. In Vijay Shankar Mishra  (supra), the appellant therein was enrolled in the Army Medical Corps on 23.06.1984. On 03.10.1997, a notice to show cause was issued to him to explain why he should not be discharged from service under Rule 13(3) Table (III)(v) of the Army Rules, 1954 on the ground that his conduct and service had not been found satisfactory. He ultimately came to be discharged from service. By that time, he had rendered service of thirteen years and eight months. The minimum qualifying service for earning pension under Rule 132 of the Pension Regulations for the Army ,1961 is fifteen years. He filed a writ petition before the Madhya Pradesh High Court which was  dismissed on 21.11.2006. In appeal, a Division Bench directed reconsideration of the case of the appellant. Pursuant to the order of the High Court, an order was issued rejecting his claim for pension on the ground that he had not put in fifteen years of service and had been discharged for the reason that he was unlikely to become an efficient soldier. He again filed a writ petition before the Madhya Pradesh High Court which  was transferred to the Armed Forces Tribunal. The Tribunal dismissed the matter. Thereafter, Mishra came before this Court. The very same argument was canvassed before this Court on behalf of Vijay Shankar Mishra that the mere fact that he had been punished while in service on nine occasions inclusive of six Red entries was no ground to exercise the power under the relevant rule for the   purpose   of   discharge.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">25. In both the aforesaid decisions, this Court took into consideration the fact that there was no application of mind by the authority to the relevant aspects which were taken into consideration while exercising the power under Rule 13 of the Rules. In both the aforesaid cases, this Court took the view that the mere fact that the Personnel had crossed the threshold of few Red Ink entries could not have been made a ground to discharge them without considering other relevant circumstances, more particularly, the nature of the violation which led to the award of the Red Ink entries. The crux of the ratio of the decision of this Court in the case on Veerendra Kumar  Dubey (supra) is that the only safeguard against arbitrary exercise of power by the authority would be to ensure that there is an enquiry, howsoever, summary and a finding about the defence set up by the individual besides consideration of the factors made relevant under the procedure.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>28. Where an Act or the statutory rules framed thereunder left an action dependent upon the opinion of the authority concerned, by some such expression as ‘is satisfied’ or ‘is of the opinion’ or ‘if it has reason to believe’ or ‘if it considered necessary’, the opinion of the authority is conclusive,</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a) if the procedure prescribed by the Act or rules for formation of the opinion was duly followed,   </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b) if the authority acted bona fide,</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(c) if the authority itself formed the opinion and did not borrow the opinion of somebody else and </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">(d) if the authority did not proceed on a fundamental misconception of the law and the matter in regard to which the opinion had to be formed.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>29. The action based on the subjective opinion or satisfaction, in our opinion, can judicially be reviewed first to find out the existence of the facts or circumstances on the basis of which the authority is alleged to have formed the opinion. It is true that ordinarily the court should not inquire into the correctness or otherwise of the facts found except in a case where it is alleged that the facts which have been found existing were not supported by any evidence at all or that the finding in regard to circumstances or material is so perverse that no reasonable man would say that the facts and circumstances exist. The courts will not readily defer to the conclusiveness of the authority’s opinion as to the existence of matter of law or fact upon which the validity of the exercise of the power is predicated. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">30. The doctrine of reasonableness thus may be invoked. Where there are no reasonable grounds for the formation of the authority’s opinion, judicial review in such a case is permissible.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>32. It is in such a case that it is said that the authority would be deemed to have not applied its mind or it did not honestly form its opinion. The same conclusion is drawn when opinion is based on irrelevant matter. [See  Rasbihari  v.  State  of  Orissa,  AIR 1969 SC 1081]. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">33. In the case of Rohtas Industries Ltd. v. S.D. Agarwal and another AIR 1969 SC   707, it was held that the existence of circumstances is a condition precedent to form an opinion by the Government. The same view was earlier expressed in the case of Barium Chemicals Ltd. and another v. Company Law Board and others, AIR 1967 SC 295.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>34. Secondly, the court can inquire whether the facts and circumstances so found to exist have a reasonable nexus with the purpose for which the power is to be exercised. In other words, if an inference from facts does not logically accord with and flow from them, the Courts can interfere treating them as an error of law. [See Bean v. Doncaster Amalgamated Collieries,  (1944) 2 All ER 279 at p. 284]. Thus, this  Court can see whether on the basis of the facts and circumstances found, any reasonable man can say that an opinion as is  formed   can be formed by a reasonable man. That would be a question of law to be determined by the Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>35. Thirdly, this Court can interfere if the constitutional or statutory term essential for the exercise of the power has either been misapplied or misinterpreted. The Courts have always equated the jurisdictional review with the review for error of law and have shown their readiness to quash an order if the meaning of the constitutional or statutory term has been misconstrued or misapplied.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>36. Fourthly, it is permissible to interfere in a case where the power is exercised for improper purpose. If a power granted for one purpose is exercised for a different purpose, then it will be deemed that the power has not been validly exercised. If the power in this case is found to  have not been exercised genuinely or the purpose of taking immediate action but has been used only to avoid embarrassment or wreck personal vengeance, then the power will be deemed to have been exercised improperly. [See  Natesa   Asari   v.   State   of   Madras,  AIR 1954 Mad 481].</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>38. At this stage, it may be apposite to refer to the Assam Rifles Regulation, 2016. We are conscious of the fact that these regulations do not apply to the case on hand as the order of discharge is of 2004</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>39. Having regard to the nature of the misconduct alleged against the appellant we are of the view that the ends of justice would be met if we set aside the order of discharge and treat the appellant herein to have been in service till the time, he could be said to have completed the qualifying service for grant of pension. We are inclined to pass such an order with a view to do substantial justice as there is nothing on record to indicate that the nature of the misconduct leading to the award of four Red Ink entries was so unacceptable that the competent authority had no option but to direct his discharge to prevent indiscipline in the force. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>40. The order of discharge passed against the appellant herein is hereby set aside. The appellant shall be treated to have been in service till the time he would have completed the qualifying service for grant of pension. We are informed that only six months were left for the qualifying service to be completed before the appellant came to be discharged. No back wages shall, however, be admissible. The benefit of continuity of service for all other purpose shall be granted to the appellant shall be released expeditiously but not later than four months from the date of this order.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>41. The appeals are allowed in the aforesaid terms. No order as to costs. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>42.  Pending application, if any, stands disposed of</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd894d5c7aae0933b0f7d608150ad3e43.jpg', '31c39478a8f08330d94384fdabd7666c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-18', 1, '', '', '2022-07-15 17:59:43', '2022-07-18 06:27:51'),
(1958, 'c3G6hMKPLNL7zZmWwpNcNmPnG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'FIR lodged during pendency of civil suit between parties giving criminal texture to civil dispute and to wreak vengeance is liable to be quashed. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gagan V and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 10271 of 2021 decided on 4 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Charge sheet is filed for the offence punishable under Sections 341, 427, 506, 504, 447 r/w 34 of IPC alleging that the petitioners-accused demolished the compound wall and when C.W.1 enquired with the said petitioners-accused, they restrained him and had given life threat and also abused C.W.1 in filthy language.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Learned counsel appearing for the petitioners submits that in the absence of any material, the filing of the charge sheet against the petitioners-accused is without any substance. He further submits that the dispute between the parties is civil in nature which is evident from the fact that during the pendency of the suit between the parties, FIR was lodged by giving it a criminal texture so as to wreak vengeance against petitioners-accused. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. On the other hand, learned HCGP for the respondent No.1-State and learned counsel appearing for respondent No.2 submits that the charge sheet material clearly discloses the commission of the aforesaid offences alleged against the petitioners-accused and at this stage, the charge sheet cannot be interfered with and sought for dismissal of the petitions.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>7. It is undisputed that before lodging the FIR by the second respondent, a suit in O.S.No.6920/2016 was filed by petitioner No.2 against the respondent No.2 and his family members and was pending consideration and also a suit in S.C.No.1056/2014 was filed by respondent No.2 against one of the tenant of the said property. Though the spot panchanama indicates that the compound wall and the main gate have been demolished by the petitioners-accused, however no material in the form of photographs is produced along with the charge sheet material to substantiate the allegation that the petitioners-accused have demolished the main gate and the compound wall. The FIR was lodged during the pendency of the suit filed by the petitioner No.2, which clearly implies that the dispute between the parties is purely civil in nature, however, given a criminal texture so as to wreak vengeance against the petitioners-accused. In the absence of any material to constitute the commission of the aforesaid offences alleged against the petitioners-accused, the filing of the charge sheet is without any substance.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. ORDER: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space: pre;\">	</span>Criminal petitions are allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '19f7b0dc09559cd913654aaa4afec7e2.jpeg', '111d697ffe9605a8ce219ac257bec841.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-18', 1, '', '', '2022-07-16 19:19:42', '2022-07-18 10:11:57');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1954, 'mDTpjaHorwaDbBf9g39n50nfK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Habeas Corpus relating to custody of the minors. Jurisdiction of the Court is independent of any statute and is based on inherent equitable powers acting as parens patriae for the protection of its minor ward. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rajeswari Chandrasekar Ganesh Vs The State of Tamil Nadu and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition (Criminal) 402 of 2021 decided on 14 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A.M. Khanwilkar and Justice J.B. Pardiwala.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This writ petition under Article 32 of the Constitution of\r\nIndia involves a contest over the custody of children born out of\r\nthe wedlock between the petitioner-mother and the respondent\r\nno.2-father. The respondents nos.4 and 5 respectively are the\r\nbrother and father of the respondent no.2.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The marriage between the petitioner and the respondent\r\nno.2 was solemnized on 31st October 2008 as per the Hindu rites\r\nand rituals at Chennai, India. Within one month from the date of\r\nthe marriage, the parties migrated to the Bear, Delaware, USA.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The respondent no.2, at the relevant point of time, was\r\nworking with the Satyam Computers. Sometime in May 2009,\r\nthe parties were constrained to return to Chennai, India, as the\r\nproject that the respondent no.2 had been working on with the\r\nSatyam Computers got terminated on account of some internal\r\nissues in the company.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">6. On 7th October 2009, the parties were blessed with a </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">daughter named Lakshaya Ganesh. It appears from the\r\nmaterials on record that sometime in January 2012, the\r\nrespondent no.2 was able to secure a job in Kansas, USA. Since\r\n2012, the parties have been residing in the USA.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. In May 2018, the petitioner completed her Master’s in\r\nComputer and Information Science and also obtained a\r\nGraduate Certificate in Data Analytics with the GPA of 3.64. She\r\nstarted working with the G&S Metal Products. On the other\r\nhand, in April 2019, the respondent no.2-father managed to find\r\na full time job in Michigan, USA.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. It is the case of the petitioner that on 1st June 2019, the\r\nrespondent no.2 picked up the minor children and left for\r\nMichigan, USA, from Cleveland, Ohio, without informing the\r\npetitioner-mother.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. It is alleged that the respondent no.2 also took away all the\r\nlegal documents of the petitioner including her passport, State\r\nID, home keys, car keys along with the documents of the minor\r\nchildren.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. It is alleged that the petitioner was locked in her own\r\nhouse. It is also alleged that with a view to ensure that the\r\npetitioner had no recourse/redressal, the respondent no.2,\r\nbefore leaving for Michigan, USA, lodged a false complaint with\r\nthe local police that the petitioner was mentally ill and that she\r\nhad run away from a mental ward.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. In such circumstances referred to above, the petitioner was\r\nconstrained to immediately file an Emergency Motion for\r\nTemporary Custody of the minor children along with a complaint\r\nfor divorce before the Court of Common Pleas, Division of\r\nDomestic Relations, Cuyahoga County, Ohio. The court\r\nconcerned, vide order dated 17th June 2019, granted temporary\r\ncustody of the minor children to the petitioner.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. It is alleged that despite such order being passed by the\r\ncourt of Common Pleas referred to above, the respondent no.2\r\npaid no heed to such order and continued to keep the children\r\naway without allowing them to talk with their mother.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. It appears that the petitioner also filed for an Emergency\r\nMotion restraining the removal of the minor children from the  <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">jurisdiction of the Ohio Court. The court concerned passed a\r\nrestraint order in favour of the petitioner on the same date, i.e.\r\n17th June 2019.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>19. Sometime in July 2019, one Ms. Megan was appointed by\r\nthe US Court as the guardian-ad-litem. However, the order\r\ngranting the custody of the minor children to the petitioner was\r\nnot acted upon by the respondent no.2.\r\n20. In August 2019, the US Court directed supervised\r\nvisitation and referred the parties to mental evaluation experts.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>21. It is the case of the petitioner that despite the custody\r\norder dated 17th June 2019 passed in favour of her, the\r\nrespondent no.2, without seeking permission of the US Court\r\nand without informing the petitioner, removed the minor\r\nchildren from the specialized school in Ohio to Allegan,\r\nMichigan. While doing so, the respondent no.2 did not even\r\nfurnish the details of the petitioner-mother including her contact\r\nnumber, etc. so as to completely alienate the petitioner from her\r\nchildren.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">22. It is the case of the petitioner that thereafter the\r\nrespondent no.2 started administering threats that he would\r\ntake away the children to India. As a result of such threats, the\r\npetitioner was constrained to bring the necessary facts to the\r\nnotice of the Court concerned. The Court concerned directed that </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the passport of both the minor children be put in the Court’s\r\ncustody.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">23. As the respondent no.2 was not able to remove the minor\r\nchildren from the USA, he decided to alienate the children from\r\nthe petitioner-mother by refusing her unsupervised visitation. It\r\nis alleged that the respondent no.2 prevented the children from\r\nreaching out to their mother and it was only with the\r\nintervention of the expert evaluator, namely Dr.Mark Lovinger,\r\nthat the petitioner was allowed to spend time with the minor\r\nchildren.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. It is the case of the petitioner that the respondent no.2, out\r\nof spite, called upon the local police levelling false allegations\r\nthat the petitioner was causing harm to her children owing to an\r\nalleged mental illness. The local police responded to the call and\r\nafter due verification arrived at the conclusion that the children\r\nwere healthy and were well taken care of by the petitioner. The\r\ncase was accordingly closed<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32. It is the case of the petitioner that the respondent no.2\r\nclandestinely and with a view to solely removing the children\r\nfrom the USA and from the joint custody of the petitioner, left for\r\nIndia with the two minor children on 17th August 2021.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>33. On 18th August 2021, being completely unaware of the\r\nrespondent no.2 having left for India with the minor children, the\r\npetitioner immediately moved an Emergency Motion for\r\nrestraining the respondent no.2 from removing the minor\r\nchildren from the USA. The Court concerned granted the order <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as prayed for by the petitioner. It was after this order that,\r\naccording to the petitioner, she checked with the Etihad Airways\r\nto confirm the itinerary of the respondent no.2 and found that\r\nthe one submitted by the respondent no.2 was incorrect</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>49. It is the case of the respondent no.2 that the custody of the\r\nchildren with him cannot be said to be unlawful in any manner.\r\nThe custody of the minor children with the father can never be\r\ntermed as unlawful or illegal. According to the respondent no.2,\r\nthe holiday was planned with the express consent of the\r\npetitioner-mother and both the children had a talk with their\r\nmother, i.e. the petitioner, on 17th August 2021 before leaving for\r\nIndia. Thereafter also, the children spoke to the petitionermother on 22nd August 2021 on arrival in India. All throughout,\r\nthe petitioner was kept informed about the whereabouts of the\r\nminor children.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>50. According to the respondent no.2, this litigation is nothing\r\nbut an outcome of several mental health issues on the part of\r\nthe petitioner. The respondent no.2 has levelled serious\r\nallegations against the petitioner that she has been diagnosed\r\nwith several mental health issues and has been on medication\r\nfor several issues for treatment of depression, bipolar disorder,\r\nschizophrenia, obsessive compulsive disorder, etc. According to\r\nthe respondent no.2, it is the erratic behaviour of the petitioner\r\nthat has resulted in his loss of job. It is alleged that the\r\npetitioner had approached the employer of the respondent no.2,\r\nnamely Perrigo, Allegan, Michigan, USA, and created a\r\ndistressing seen, thereby resulting in termination of the </b></span><b style=\"font-size: 12pt;\">respondent no.2’s employment with immediate effect. As the\r\nrespondent no.2 is not an American citizen nor is he a Green\r\nCard holder, the loss of job means that he cannot go back to the\r\nUS without the work permit.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">51. It is the case of the respondent no.2 that it is the petitioner\r\nwho created a situation beyond repair, which ultimately led to\r\nthe cancellation of visa.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>54. In such circumstances, it is the case of the respondent\r\nno.2 that the present petition under Article 32 of the\r\nConstitution of India seeking a Writ of Habeas Corpus is not\r\nmaintainable. It is not maintainable as the father, being the\r\nnatural guardian of his children, the custody of the father\r\ncannot be termed as illegal or unlawful restrain on the minor\r\nchildren. In that context, no writ of Habeas Corpus can be\r\nissued. It is the case of the respondent no.2 that before a writ of\r\nHabeas Corpus can be issued, it has to be shown that there is\r\neither unlawful detention or custody or there is an imminent or\r\nserious danger to the person detained, particularly if he or she is\r\na minor.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">71. The Guardians and Wards Act, 1890, was primarily\r\nenacted to consolidate the various Acts then in force keeping in\r\nview the personal law of diverse communities in India. It,\r\nhowever, did not encroach upon the jurisdiction of the Courts of\r\nWards and did not take away any powers vested in the High\r\nCourts or the Supreme Court. A ‘minor’ under the Act has been\r\ndefined as a person who, under the provisions of the Indian\r\nMajority Act, 1875, is to be deemed not to have attained his\r\nmajority. A ‘guardian’ has been defined as a person having the\r\ncare of the person of a minor or of his property or of both his\r\nperson and property. Section 6 of the Act provides that no\r\nprovision in the Act shall be construed to take away or derogate\r\nfrom any power to appoint a guardian of a minor\'s person or\r\nproperty, or both, which is valid by the law to which the minor is\r\nsubject. Section 7 gives power to the Court that if it is satisfied\r\nthat it is for the welfare of a minor that an order should be\r\nmade, it may make an order appointing a guardian of his person\r\nor property, or both, or declaring a person to be such a\r\nguardian. Section 8 lays down that no order under Section 7 will\r\nbe made except on the application of the person desirous of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">being, or claiming to be, the guardian of the minor or any\r\nrelative or friend of the minor or the Collector of the district in\r\nwhich the minor ordinarily resides or in which he has property\r\nor the Collector having authority with respect to the class to\r\nwhich the minor belongs. Section 9 deals with the territorial\r\njurisdiction of the court. Section 10 lays down the manner in\r\nwhich an application is to be made and what is to be stated in\r\nthe application. Section 11 provides for the procedure on\r\nadmission of such an application. Section 12 gives power to the\r\ncourt to make interlocutory order for production of a minor and\r\ninterim protection of his person and property. Section 17 enjoins\r\nupon the court to have due regard to the personal law of the\r\nminor and specially take note of the circumstances which point\r\ntowards the welfare of the minor in either appointing a guardian\r\nor declaring a guardian. If the minor is old enough to form an\r\nintelligent preference, the court may be justified to consider that\r\npreference also in coming to the final conclusion. Further, no\r\nperson can be appointed as a guardian against his own will.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">72. The Hindu Minority and Guardianship Act, 1956 was\r\nenacted as a law complementary to the Guardians and Wards\r\nAct, 1890. This defines a ‘minor’ to be a person who has not\r\ncompleted the age of eighteen years. ‘Guardian’ has been defined\r\nas a person having the care of the person of a minor or of his</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">property or of both his person and property and includes -</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(i) a\r\nnatural guardian,</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(ii) a guardian appointed by the will of the\r\nminor\'s father or mother,</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(iii) a guardian appointed or declared\r\nby a Court, and (vi) a person empowered to act as such by or\r\nunder any enactment relating to any court of wards. ‘Natural\r\nguardian’, according to this Act, means any of the guardians\r\nmentioned in Section 6. Section 6 says that the natural\r\nguardians of a Hindu minor, in respect of the minor\'s person as\r\nwell as in respect of the minor\'s property (excluding his or her\r\nundivided interest in the joint family property) are - (a) in the\r\ncase of a boy or an unmarried girl, the father, and after him, the\r\nmother, provided that the custody of a minor who has not\r\ncompleted the age of five years shall ordinarily be with the\r\nmother. Section 8 lays down that the natural guardian of a\r\nHindu minor has power, subject to the provisions of this section,\r\nto do all acts which are necessary or reasonable and proper for\r\nthe benefit of the minor or for the realization, protection or\r\nbenefit of the minor\'s estate but the guardian can, in no case,\r\nbind the minor by a personal covenant. Sub-section (5) of\r\nSection 8 lays down that the Guardians and Wards Act, 1890,\r\nshall apply in certain circumstances. Section 13 of the Act lays\r\ndown that in the appointment or declaration of any person as\r\nguardian of Hindu minor by a Court, the welfare of the minor </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">shall be the paramount consideration. Indeed sub-section (2) of\r\nSection 13 lays down that no person shall be entitled to the\r\nguardianship by virtue of the provisions of the Act or of any law\r\nrelating to guardianship in marriage among Hindus, if the Court\r\nis of opinion that his or her guardianship will not be for the\r\nwelfare of the minor. This section is complementary to Section\r\n17 of the Guardians and Wards Act, 1890 which lays down that\r\nin appointing or declaring the guardian of a minor the Court\r\nshall be guided by what, consistently with the law to which the\r\nminor is subject, appears in the circumstances to be for the\r\nwelfare of the minor.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>73. A mere reading of the provisions of the two Acts referred to\r\nabove makes it obvious that the welfare of the minor\r\npredominates to such an extent that the legal rights of the\r\npersons claiming to be the guardians or claiming to be entitled to\r\nthe custody will play a very insignificant role in the\r\ndetermination by the court.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">74. Ms. Arora does not really contest the above proposition.\r\nWhat she contends is that the father being the natural guardian\r\nof his two minor children, the custody of the father cannot be\r\ntermed as illegal or unlawful restraint on the minor. In that\r\ncontext no writ of Habeas Corpus can issue. Her contention is </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that before a writ of Habeas Corpus can issue, it has to be\r\nshown that there is either unlawful detention or custody or there\r\nis imminent or serious danger to the person detained,\r\nparticularly if he or she is minor.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>80. The object and scope of a writ of Habeas Corpus in the\r\ncontext of a claim relating to the custody of a minor child fell for\r\nthe consideration of this Court in Nithya Anand Raghavan\r\n(supra) and it was held that the principal duty of the court in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">such matters should be to ascertain whether the custody of the\r\nchild is unlawful and illegal and whether the welfare of the child\r\nrequires that his present custody should be changed and the\r\nchild be handed over to the care and custody of any other\r\nperson.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">81. Taking a similar view in the case of Syed Saleemuddin v.\r\nDr. Rukhsana and others, (2001) 5 SCC 247, it was held by\r\nthis Court that in a Habeas Corpus petition seeking transfer of\r\ncustody of a child from one parent to the other, the principal\r\nconsideration for the court would be to ascertain whether the\r\ncustody of the child can be said to be unlawful or illegal and\r\nwhether the welfare of the child requires that the present\r\ncustody should be changed.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>82. The question of maintainability of a Habeas Corpus\r\npetition under Article 226 of the Constitution of India for the\r\ncustody of a minor was examined by this Court in Tejaswini <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Gaud and others v. Shekhar Jagdish Prasad Tewari and\r\nothers, (2019) 7 SCC 42, and it was held that the petition would\r\nbe maintainable where the detention by parents or others is\r\nfound to be illegal and without any authority of law and the\r\nextraordinary remedy of a prerogative writ of Habeas Corpus can\r\nbe availed in exceptional cases where the ordinary remedy\r\nprovided by the law is either unavailable or ineffective.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>86. In Elizabeth Dinshaw (supra), this Court has observed\r\nthat whenever a question arises before a court pertaining to the\r\ncustody of the minor child, the matter is to be decided not on\r\nconsideration of the legal rights of the parties but on the sole\r\nand predominant criterion of what would best serve the interest\r\nand welfare of the child.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>89. The question as to what would be the dominating factors\r\nwhile examining the welfare of a child was considered in Walker\r\nv. Walker & Harrison, 1981 New Ze Recent Law 257 and it was\r\nobserved that while the material considerations have their place,\r\nthey are secondary matters. More important are stability and\r\nsecurity, loving and understanding care and guidance, and\r\nwarm and compassionate relationships which are essential for\r\nthe development of the child’s character, personality and talents.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>91. Thus, it is well established that in issuing the writ of\r\nHabeas Corpus in the case of minors, the jurisdiction which the\r\nCourt exercises is an inherent jurisdiction as distinct from a\r\nstatutory jurisdiction conferred by any particular provision in\r\nany special statute. In other words, the employment of the writ\r\nof Habeas Corpus in child custody cases is not pursuant to, but\r\nindependent of any statute. The jurisdiction exercised by the\r\ncourt rests in such cases on its inherent equitable powers and\r\nexerts the force of the State, as parens patriae, for the protection <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of its minor ward, and the very nature and scope of the inquiry\r\nand the result sought to be accomplished call for the exercise of\r\nthe jurisdiction of a court of equity. The primary object of a\r\nHabeas Corpus petition, as applied to minor children, is to\r\ndetermine in whose custody the best interests of the child will\r\nprobably be advanced. In a Habeas Corpus proceeding brought\r\nby one parent against the other for the custody of their child, the\r\ncourt has before it the question of the rights of the parties as\r\nbetween themselves, and also has before it, if presented by the\r\npleadings and the evidence, the question of the interest which\r\nthe State, as parens patriae, has in promoting the best interests\r\nof the child.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>96. This Court then proceeded to consider the issue, whether\r\nthe facts of the case before it warranted an elaborate inquiry into\r\nthe question of custody of the minor and should the parties be\r\nrelegated to the said procedure before an appropriate forum in\r\nIndia. This Court concluded in its judgment that it was not\r\nnecessary to relegate the parties to an elaborate procedure in\r\nIndia.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>97. Despite the fact that the minor child Adithya had remained\r\nin India for over two years, this Court concluded that it could not\r\nbe said that the he had developed his roots in India. This Court\r\ndirected the respondent mother to take the child, of her own, to\r\nthe USA and to report before the Family Court of the State of\r\nNew York. This Court also imposed the condition on the\r\npetitioner that he shall bear all the travelling expenses of the\r\nmother and the minor child and make arrangements for their\r\nresidence in the USA till further orders are passed by the\r\ncompetent Court. He was also directed to request the authorities\r\nthat the warrants issued against the mother be dropped and he\r\nwas directed not to file or pursue any criminal charge for\r\nviolation by the mother of the consent order in USA.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">102. This Court also relied upon the judgment in V. Ravi\r\nChandran (supra) and inter alia held that the role of the High\r\nCourt in examining the cases of custody of a minor is on the\r\ntouchstone of principle of parens patriae jurisdiction, as the\r\nminor is within the jurisdiction of the court. It has held that the\r\nHigh Court while dealing with the petition for issuance of Habeas\r\nCorpus concerning a minor child in a given case, may direct\r\nreturn of the child or decline to change the custody of the child\r\nkeeping in mind all the attending facts and circumstances\r\nincluding the settled legal position discussed therein. It has\r\nfurther added that the decision of the court, in each case, must\r\ndepend on the totality of the facts and circumstances of the case\r\nbrought before it while considering the welfare of the child which\r\nis of paramount consideration and that the order of the foreign\r\ncourt must yield to the welfare of the child and the remedy of\r\nwrit of Habeas Corpus cannot be used for mere enforcement of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the directions given by the foreign court against a person within\r\nits jurisdiction and convert that jurisdiction into that of an\r\nexecuting court. It has further observed that the writ petitioner\r\ncan take recourse to such other remedy as may be permissible in\r\nlaw for enforcement of the order passed by the foreign court or\r\nresort to any other proceedings as may be permissible in law\r\nbefore the Indian Court for the custody of the child, if so advised.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>107. Keeping in mind the principles of law as explained by this\r\nCourt in Nithya Anand Raghavan (supra), we now proceed to\r\nconsider, whether it will be in the paramount interest and\r\nwelfare of both the minor children to go back to the USA ? To\r\nput it in other words, whether we should direct the respondent\r\nno.2 to go back to the USA with both the minor children and\r\nabide by the shared parenting plan as ordered by the Court of\r\nCommon Pleas, Division of Domestic Relations, Cuyahoga\r\nCounty, Ohio, or handover the custody of both the minor\r\nchildren to the petitioner-mother ?<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">114. In the overall view of the matter, we have reached to the\r\nconclusion that the respondent no.2, at the earliest, should be\r\ndirected to go back to the USA with both the minor children and\r\nabide by the shared parenting plan as ordered by the Court at\r\nOhio. Although, the shared parenting plan as ordered by the\r\nCourt at Ohio stood terminated at the instance of the petitionermother, yet the same can be revived once again by the\r\nauthorities by going before the concerned court at Ohio. It is for\r\nthe parties to take the necessary steps in this regard. The\r\nrespondent no.2 shall immediately apply for the visa on the\r\nstrength of this order. If the respondent no.2 is in a position to\r\nobtain a job in the USA on the strength of a work permit or any\r\nother document, then it is well and good. However, we are sure\r\nof one thing that it will be in the interest and welfare of both the\r\nchildren to go back to the USA for the purpose of their\r\neducation, etc. The allegations levelled by the respondent no.2 </span><span style=\"font-size: 12pt;\">that the petitioner suffers from some mental illness appears to\r\nbe absolutely wild and reckless. Even otherwise this issue is a\r\nhighly disputed question of fact.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>115. We would therefore hold that in the case at bar the\r\ndominant consideration to which all other considerations must\r\nremain subordinate must be the welfare of the child. This is not\r\nto say that the question of custody will be determined by\r\nweighing the economic circumstances of the contending parties.\r\nThe matter will not be determined solely on the basis of the\r\nphysical comfort and material advantages that may be available\r\nin the home of one contender or the other. The welfare of the\r\nchild must be decided on a consideration of these and all other\r\nrelevant factors, including the general psychological, spiritual\r\nand emotional welfare of the child. It must be the aim of the\r\nCourt, when resolving disputes between the rival claimants for\r\nthe custody of a child, to choose the course which will best\r\nprovide for the healthy growth, development and education of the\r\nchild so that he or she will be equipped to face the problems of\r\nlife as a mature adult.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>116. We allow this writ petition with the following directions :</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n(1) The respondent no.2-father shall, within one <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">week from today, apply to the authority concerned for\r\nvisa to travel to the USA with the two minor children.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(2) The concerned authority may keep the\r\nobservations made by this Court in the present\r\njudgment in mind and, in the larger interest of the\r\ntwo minor children, consider grant of visa to the\r\nrespondent no.2-father. Once the visa is granted, the\r\nrespondent no.2 shall, within one week thereafter,\r\nproceed to travel to the USA.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(3) Once the two minor children reach the USA,\r\nthereafter, it will be open for the petitioner-mother to\r\ntake care of her children.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(4) We leave it open to the respondent no.2-father\r\nto chalk out his own plan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(5) If the respondent no.2 wants to stay back in the\r\nUSA, it is always open for him to do so in accordance\r\nwith the law of the country. If the respondent no.2\r\ndecides to come back to India, then in such\r\ncircumstances, the petitioner-mother shall make both\r\nthe minor children speak to their father on-line at\r\nleast once every week.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(6) In any event, if the visa is declined to the\r\nrespondent no.2, then in such circumstances, the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner-mother shall travel to India and pick up her\r\ntwo minor children and go back to the USA. In such\r\nan eventuality, the respondent no.2 and his family\r\nmembers are directed to fully cooperate and not\r\ncreate any impediment of any nature. If it comes to\r\nthe notice of this Court that the respondent no.2 or\r\nany of his family members have created any\r\nimpediment for the petitioner-mother, then the same\r\nshall be viewed as the contempt of this Court’s order.\r\nIn addition, it will be open to the petitioner-mother to\r\ncontact the jurisdictional Commissioner/\r\nSuperintendent of Police, who shall thereafter ensure\r\nthat the custody of the children is immediately/\r\nforthwith handed over to the petitioner-mother and\r\nsubmit compliance report in that regard to this Court.\r\nIn case of any impediment despite the peremptory\r\ndirection, the petitioner-mother may apply for\r\nappropriate directions from this Court, if so advised.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>119. There will be no order as to costs. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '733b7ace89b54e496f70800fab904a26.jpg', 'e145abb0c5feaca8cb3cb3e3dda7a08c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-16', 1, '', '', '2022-07-15 18:43:09', '2022-07-16 17:09:31');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1955, 'XEh8Ccxg8HVEkBS4apgbDPXO7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Dowry Death. Court cannot apply the parameters of murder under Section 302 IPC. Evidence must be appreciated keeping in mind the requirements of Section 304B and 498A. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Devender Singh and others Vs The State of Uttarakhand.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 383 of 2018 decided on 21 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice N.V. Ramana, Justice A.S. Bopanna and Justice Hima Kohli.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The appellants have assailed the judgment dated 14th September, 2017,\r\npassed by the High Court of Uttarakhand at Nainital in Government Appeal No.57 of\r\n2010, whereby the judgment dated 17th April, 2010 passed by the learned Sessions\r\nJudge, Rudraprayag acquitting them from the charges under Section 498A, 304B\r\nand 120B of the Indian Penal Code1\r\n has been reversed and they have been\r\nsentenced to undergo rigorous imprisonment for a period of seven year with a fine\r\nof ?10,000/- (Rupees Ten thousand) and in default, to undergo simple imprisonment\r\nfor three months for the offence under Section 304B IPC. The appellants have also\r\nbeen sentenced to undergo rigorous imprisonment for one year under Section 120B\r\nIPC and two years under Section 498A IPC. Being aggrieved by the said judgment <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and order of conviction, the appellants are before this Court, in this appeal by way of\r\nspecial leave.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>2. The brief facts leading to the case are that the appellant No.1, Devender\r\nSingh, son of appellant No. 3, Smt. Kunja Devi and Bhawan Singh was married to\r\nthe deceased, Sushila, the wedding having been solemnized on 20th October, 2007.\r\nSushila is stated to have gone missing from her matrimonial home since 24th April,\r\n2008. This came to the knowledge of the mother of the deceased when the\r\nappellant No.2 herein, Jagdish Singh, brother of the appellant No. 1 called her on\r\n25th April, 2008, at 7.00 p.m. to inform her and enquire as to whether Sushila had\r\ngone to the parental home. The mother of the deceased in turn informed her son,\r\nthe complainant, who resided at Haridwar. On returning to his house, the\r\ncomplainant went to the matrimonial home of the deceased on 28th April, 2008. It\r\nhas been alleged by the complainant that keeping in view the fact that there were\r\nrepeated demands for dowry made by the appellants and the manner in which they\r\nhad behaved with him when he had gone to visit them, made him suspect that his\r\nsister had been killed by the appellants but they were feigning ignorance and acting\r\nas if his sister had gone missing.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. Based on the complaint, investigation was carried out by the local police\r\nand the body of Sushila was subsequently found in Ganga river. Having regard to\r\nthe fact that an unnatural death had taken place within about six months of the\r\nmarriage and since there was an allegation of cruelty relating to demand of dowry, a\r\ncase was registered against the appellants under Sections 498A, 304B and 120B of\r\nIPC. The appellants having denied the allegations levelled against them, trial was c</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">onducted in Sessions Trial No.18/2008 before the District and Sessions Judge,\r\nRudraprayag. In support of their case, the prosecution examined 14 witnesses\r\narrayed as PW-1 to PW-14. Besides denying their role while recording their\r\nstatements under Section 313 of the Criminal Procedure Code, the\r\nappellants/accused also examined DW-1 to DW-3 as their witnesses. On\r\nconsidering the evidence, the trial Court recorded findings in favour of the appellants\r\nand acquitted all of them vide judgment dated 17th April, 2010.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Being aggrieved by the judgment dated 17th April, 2010, State of\r\nUttarakhand preferred an appeal before the High Court of Uttarakhand at Nainital\r\nvide Government Appeal No.57 of 2010. On reappreciating the entire evidence\r\nexhaustively and on applying the legal principles, the High Court has allowed the\r\nsaid appeal. Consequently, the judgment and order dated 17th April, 2010 passed by\r\nthe Sessions Judge in Sessions Trial No.18 of 2018 was set aside. The appellants\r\nhave been convicted under Sections 498A, 304B and 120B of IPC and sentenced to\r\nundergo rigorous imprisonment for a period of seven years and pay a fine of\r\n?10,000/- (Rupees Ten thousand) and in default, to undergo three months simple\r\nimprisonment under Section 304B IPC. The appellants have also been sentenced to\r\nundergo rigorous imprisonment of one year under Section 120B IPC and two years\r\nunder Section 498A IPC. The sentence was handed down by a separate order dated\r\n05th October, 2017. Claiming to be aggrieved by the judgment of conviction and\r\nsentence handed down by the High Court, the appellants are before this Court. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Having taken note of the relevant provision and the ingredients thereof,\r\nthe facts of the instant case would disclose that the deceased and the appellant\r\nNo.1 had got married on 20th October, 2007. Sushila, wife of the appellant No.1 had\r\ngone missing from the matrimonial home from 24th April, 2008 and her dead body\r\nwas fished out on the 10th day from river Alakhnanda near Naragasu. From the\r\nbasic facts noted above, the basic ingredients of Section 304B IPC such as the\r\ndeath not being normal and such a death having occurred within 7 years from the\r\ndate of her marriage would stand fully established. The question, therefore, is as to\r\nwhether the evidence tendered by the prosecution would be sufficient to establish\r\nthe remaining ingredients of Section 304B IPC with regard to the demand for dowry\r\nand perpetration of cruelty and harassment in connection with such a demand.\r\nFurther, whether such cruelty and harassment were suffered by the deceased soon\r\nbefore her death so as to constitute a dowry death. As to the phrase ‘soon before\r\nher death’, it is well-settled that the same ought to be interpreted to mean proximate\r\nand to be linked with but not to be understood to mean immediately prior to the\r\ndeath.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. While taking note of the evidence and the other aspects of the matter,\r\nwhat is also to be borne in mind in the instant case is that the death which did not\r\ntake place in normal circumstances, had occurred within just about 6 months from\r\nthe date of the marriage. In that context, a perusal of the evidence of Smt. Thapa\r\nDevi (PW-1), mother of the deceased gains significance. She had categorically\r\nstated that when the deceased had for the first time come to the parental home from\r\nher in-laws, she had said that her in-laws and husband were demanding dowry and\r\nhad been harassing her. The nature of the demand was also specified to say that\r\nthey were seeking payment of a sum of ?2,00,000/- (Rupees Two lakhs) as dowry\r\nand in the alternative, to get a house constructed in Haridwar. PW-1 further stated\r\nthat on 10th April, 2008, when she had gone to her daughter’s house, the appellants\r\nhad at that stage quarrelled with her and placed a demand before her for\r\n?2,00,000/- (Rupees Two lakhs) or to have a house constructed for them in\r\nHaridwar. She however came back on 11th April, 2008, leaving her daughter behind.\r\nWithin 2-4 days thereafter, the deceased is stated to have called PW-1 indicating\r\nthat she was disturbed as the appellants were harassing her badly and also beating\r\nher. PW-1 stated that she had conveyed this to her brother-in-law, Mr. Rajendra\r\nSingh and shared with him about such a demand and harassment faced by the\r\ndeceased. Her brother-in-law had assured her that he would come over after 2-3\r\ndays and attempt to sort out the matter. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. A perusal of the impugned judgment would disclose that the High Court\r\nhas appreciated the evidence in the correct perspective. Though the trial Court also\r\nreferred to the very same evidence and the analysis commenced from para 27 of the\r\njudgment, it indicates that the observation made by the trial Court that there was no\r\nsuch evidence available on the file that the murder of the deceased, Sushila had\r\nbeen committed, will disclose that the trial court was appreciating the evidence from\r\nthe prism of assessing the charge under Section 302 IPC, when the evidence on\r\nrecord ought to have been analyzed and appreciated keeping in mind the\r\nrequirements of Section 304B and 498A IPC and the ingredients thereof. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. Having arrived at the above conclusion, the issue before us is as to\r\nwhether in the facts and circumstances of the instant case, the appellants No.2 and\r\n3 should also be held equally guilty as the appellant No.1. It is no doubt true that the\r\nevidence of PW-1 indicates that the deceased had informed her that the husband <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and the in-laws had been harassing her and when PW-1 had gone to drop her\r\ndaughter back to the matrimonial home on 10th April, 2008, the in-laws had raised a\r\ndowry demand. However, what has also been brought on record is that the\r\nappellants No.2 and 3 were residing separately, in a different house. In the crossexamination of PW-1, a suggestion was made to her about the distance between the\r\ntwo houses. Further, fact remains that the trial Court also referred to this aspect in\r\npara 31 of the judgment where learned counsel for the defence had brought to the\r\nnotice of the Court that there were two ration cards and the ration card of the\r\nappellants No.2 and 3 is separate from that of the appellant No.1 which mentions his\r\nname and that of the deceased. That apart, the nature of the demand made was for\r\na lumpsum amount of ?2,00,000/- (Rupees Two lakhs) or for constructing a house in\r\nHaridwar, either of which was essentially for the benefit of the appellant No.1.\r\nTherefore, there is no specific role with regard to the demand of dowry and nor has\r\nany specific instance of cruelty and harassment been ascribed to the appellants\r\nNo.2 and 3 except for the general assertion. Moreover, in a circumstance where\r\nthe charge was also under Section 120B IPC, there is no specific evidence led by\r\nthe prosecution relating to the conspiracy allegedly hatched by the appellants. In\r\nthe aforesaid circumstances, we are of the opinion that the appellants No.2 and 3\r\ndeserve to be given the benefit of doubt and their conviction would not be justified.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">24. In the above backdrop, the conviction and sentence handed down by the\r\nHigh Court to the appellant No.1 (husband of the deceased) is upheld. However, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the conviction and sentence handed down by the High Court to the appellants No.2\r\nand 3 is set aside. The judgment dated 14th September, 2017 passed in Government\r\nAppeal No.57/2010 stands modified to the said extent. It is ordered that the\r\nappellant No.2 and 3 who were released on bail on 12th March, 2018, be set free.\r\nThe bail bonds executed by the appellants No.2 and 3 are, accordingly, cancelled.\r\nAppellant No.1 shall, however, surrender within two weeks and serve the remaining\r\npart of the sentence imposed on him.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>25. The appeal is partly allowed on the above terms.\r\n26. Pending applications, if any, shall stand disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '26d0f2d9503d8d1d7237c264ca849f06.jpg', 'ee0fb4377fec5ccfc1d88c3820c5aa9d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-16', 1, '', '', '2022-07-15 19:16:48', '2022-07-16 20:00:27'),
(1957, '1PgyUD5bVHO6iU1UXhqZUAxuk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Woman who willingly stayed with man cannot lodge rape case when relationship does not workout. Supreme Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ansaar Mohammad Vs The State of Rajasthan and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 962 of 2022 decided on 14 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Gupta and Justice Vikram Nath.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The challenge in the present appeal is to an order\r\npassed by the High Court on 19.05.2022 whereby, an\r\napplication for pre-arrest bail under Section 438 of the\r\nCode of Criminal Procedure, 1973 for the offences under\r\nSections 376(2)(n), 377 and 506 IPC was dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>It is the admitted case of the complainant that she\r\nwas in a relationship with the appellant for a period of\r\nfour years. It is admitted by Mr. Himanshu Sharma, learned\r\ncounsel for the respondent No.2/complainant that when the\r\nrelationship started, she was 21 years of age.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In view of the said fact, the complainant has\r\nwillingly been staying with the appellant and had the\r\nrelationship. Therefore, now if the relationship is not </b></span><b style=\"font-size: 12pt;\"><span style=\"font-size: 12pt;\">working out, the same cannot be a ground for lodging an FIR\r\nfor the offence under Section 376(2)(n) IPC.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Consequently, we allow the present appeal and set\r\naside the order of the High Court. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>It is made clear that the observations in the present\r\norder are only for the purposes of deciding the pre-arrest\r\nbail application. The investigation shall proceed\r\nuninfluenced by the observations made in the present order.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pending application(s), if any, also stand disposed\r\nof. </b><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2d2bc0e7943be83eea9daa0f58391b5d.jpg', 'b1f2f9bf55fa7c0c143dccf58a0937c3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-16', 1, '', '', '2022-07-16 01:16:39', '2022-07-16 10:16:32'),
(1959, 'yZJbLUEItqe8gQKqumFdIspAj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bar under Article 363 of the Constitution to enquire into disputes arising out of merger agreement or instrument of accession between Ruler of an Indian State and the Government applies even to Revenue proceedings. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Secretary to Government and Commissioner Revenue Department and others Vs G.B. Yadawad through LRS and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 5827 of 2007 decided on 14 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>An agreement dated 19th day of February, 1948 was entered into between the then Governor General of India and the then Raja of Jamkhandi whereby the Raja of Jamkhandi agreed that the administration of the State should be integrated as early as possible with that of province of Bombay in such manner as the Government of Dominion of India may think fit and one of the conditions contained in Article 3 of the said agreement was that the Raja shall be entitled to the full ownership, use and enjoyment of all private properties belonging to him on the date of agreement and the Raja will furnish to the government the inventory list of all the immovable properties, securities and cash balances held by him as such private property.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The private respondents herein purchased properties in Ramthirtha village, Jamkhandi Taluk, described as “the entire gaonthan area measuring 104 acres and 5 guntas\'\' under the registered sale deeds executed by the successors of late Parashuram Patharvardhan, ex-Raja of Jamkhandi. In the sale deed, it is mentioned that the ex-Raja left the entire area of the subject property as part of his estate.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 3. Such being the case, the petitioner–State initiated proceeding under Section 67(2) read with Section 33 of the Karnataka Land Revenue Act, 1964 (for short \'the Act\') before the 3rd petitioner–Assistant Commissioner to declare gaonthan area measuring 104 acres 5 guntas of Ramathirth Village in Jamkhandi Taluka as the exclusive property of the State Government. In the said proceeding, the private respondents herein appeared and filed their written objections. The 3rd petitioner after considering the rival contentions of the parties passed an order dated 15.12.1989 declaring that the gaonthan land measuring 104 acres 5 guntas excluding ten structures with appurtenant which are demarcated by a compound is exclusively and unquestionably the property of the State Government. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Being aggrieved, the respondents No.1 to 5 preferred an appeal under Section 49(b) of the Act before the 2nd petitioner. The 2nd petitioner dismissed the appeal by order dated 25.6.1991, against which the private respondents herein filed a second appeal under Section 50(I)(b) of the Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The Karnataka Appellate Tribunal by order dated 9.11.1992 allowed the appeal and set aside the order passed by the 3rd petitioner declaring the subject property as government property and also the order passed by the 2nd petitioner confirming the order passed by the 3rd petitioner. Taking exception to the same, the State has filed this writ petition.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. After examining the rival submissions made by the learned counsel for the parties, the following points that arise for consideration in this writ petition are as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space:pre\">	</span>Whether the  proceeding under Section 67 (2) of the Karnataka Land Revenue Act is maintainable in view of the bar contained under Article 363 of the Constitution of India.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ii)<span style=\"white-space:pre\">	</span>Whether the proceeding under Section 67(2) of the Karnataka Land Revenue Act can be initiated to adjudicate the title of an immovable property between the State Government and an individual.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>iii)<span style=\"white-space:pre\">	</span>Whether the appurtenant land is also part of the inventory appended to the merger agreement.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>iv)<span style=\"white-space:pre\">	</span>Whether the writ petition is hit by delay or latches, if any, or otherwise requires to be condoned.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. Regarding point No.(i):</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>a.<span style=\"white-space:pre\">	</span>The proceeding under Section 67(2) of the Karnataka Land Revenue Act was initiated to declare that the land measuring 104 acres 5 guntas of Ramathirth Village is not the subject matter of inventory appended to the merger agreement and the said land exclusively belongs to the State Government. The 3rd petitioner by interpreting the Article 3 contained in the merger agreement and also the inventory appended, especially item No.10, has declared that the subject property exclusively belongs to the State Government. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>b.<span style=\"white-space:pre\">	</span>The Apex Court in the case of Maharaja Pravir Chandra Bhanj Deo Kakatiya (supra) has held at para-6 that any dispute arising out of merger agreement or the instrument of accession in view of Article 363 of the Constitution is beyond the competence of the Court to enquire into. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>c.<span style=\"white-space:pre\">	</span>The Apex Court in the case of Union of India (supra) relying on the decision in the case of Madhavrao Jivaji Rao Scindia –vs- Union of India reported in (1971) 1 SCC 85 has held that there would be a complete bar for the jurisdiction of all courts in any dispute arising out of any provision of a treaty agreement etc. executed before commencement of the Constitution of India. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>d.<span style=\"white-space:pre\">	</span>The Apex Court in the case of Madhya Pradesh (supra) at paras-33 and 34 has held that, whether the properties stated in the agreement are the personal properties of the Ruler or not as such question would fall under the ambit of Article 363 of the Constitution of India and hence declined to interpret the agreement and therefore the courts would be barred from interpreting the agreement that are the treaty of accession.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> e.<span style=\"white-space:pre\">	</span>In the present case, the State Government initiated proceedings under Section 67 (2) of the Act to declare that the subject property is the exclusive property of the Government. The Assistant Commissioner concerned, by interpreting the merger agreement held that only the structures listed in the inventory to the agreement are the private properties and the land appurtenant to the said structures are government properties. In view of the express bar contained in Article 363 of the Constitution of India, the Assistant Commissioner concerned has decided the rights of the party by interpreting the merger agreement which is one without authority of law<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. Regarding point No.(ii):</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">a.<span style=\"white-space:pre\">	</span>The Apex Court in the case of M. Sankaranarayanan (supra) at para 18 has held that the dispute of title of property between the State and individuals cannot be decided in terms of Section 67 of the Act and Section 67 of the Act clearly indicate that it only applies to public road, streets, lanes etc., or to such land which are not property of the individual, or an aggregate of person legally capable of holding property.<br></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. Regarding point No.(iii):</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> a.<span style=\"white-space: pre;\">	</span>A perusal of the Article 3 contained in the merger agreement and also the inventory appended to the agreement discloses that the ten structures at Ramathirth village are the personal and private properties of the then Raja of Jamkhandi. It is undisputed that these properties are enclosed by a compound wall and it is implied that the land appurtenant to these structures which is the subject property are also the exclusive property of the Raja of Jamkhandi and it cannot be said that only the structures are the private properties and the land appurtenant to the structures are the government properties. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>b.<span style=\"white-space: pre;\">	</span>The Karnataka Appellate Tribunal in its impugned judgment at para-21 after perusing the village map of Ramtheerth, which was part of the record has held that the village comprises of Gramathana Forest and Lands occupied by individuals. Further, on perusal of statement of general information of village Ramatheerth, the Tribunal has held that the total area of village is 828 acres 36 guntas and out of this, only 107 acres 26 guntas is cultivable land and out of this, only 69 acres are assessed to land revenue and remaining 606 acres 35 guntas is forest area and 105 acres 4 guntas is the Gramathana area and also the entire area of Gramathana is enclosed by loose stone compound wall and within this compound, the buildings mentioned in the inventory list are situated. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>c.<span style=\"white-space: pre;\">	</span>The Tribunal in para-22 of its judgment after perusing the plan and the topography of the 105 acres 4 guntas has come to the conclusion that the buildings such as Ramatheertha palace, Dilkhush Bungalow, Guest House, Swimming Bath, Private Secretaries Bungalow are one in area and the small buildings such as motor garage, store, dasthan koti, etc are in another area and there are roads connecting this building etc. Therefore, it is impossible to separate the building from the land and it is absurd to say that only the buildings were the private property of the king and not the appurtenant land to it.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>e.<span style=\"white-space:pre\">	</span>The Tribunal by referring to the aforesaid communication held that the government having come forward to purchase the land appurtenant to the buildings, the land appurtenant to building cannot be said to be the government land and it was the private property of Ex-Raja of Jamkhandi. The finding recorded by the Tribunal was based on the available material and the said finding cannot be said to be based on no material. This Court in exercise of its jurisdiction under Article 227 of the Constitution of India cannot act as an Appellate Tribunal and interfere with the findings of the Appellate Tribunal unless such finding is based on no material or on the face of it perverse and can only correct an error of law as held by the Hon\'ble apex court in the case of Syed Yakoob v. K.S. Radhakrishnan reported in AIR 1964 SC 477. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>f.<span style=\"white-space:pre\">	</span>Hence, the order passed by the Assistant Commissioner is not only one without authority of law, but also contrary to Article 3 contained in the merger agreement and also the inventory appended to the agreement. However, the finding recorded by the Tribunal or this Court will not come in the way of the government establishing its right over the subject property as contemplated under Article 363 of the Constitution of India. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. Regarding Point No. (iv):</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>d.<span style=\"white-space:pre\">	</span>The Government has suppressed that the impugned order passed by the Karnataka Appellate Tribunal was well within its knowledge which is evident from the communication dated 7.7.1993 and also in the absence of any plausible explanation offered for the delay in filing the writ petition, the present writ petition is hit by delay and laches and the petitioners having not approached this court with clean hands are not entitled for the discretionary relief under Articles 226 of the Constitution of India. Hence, following the observations made in the above decisions of Hon’ble apex court, the present writ petition fails on the ground of delay and laches. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. In view of the preceding analysis, the impugned order passed by the Karnataka Appellate Tribunal does not suffer from any illegality or infirmity and the petition being devoid of merits requires to be dismissed<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The writ petition is dismissed. Parties to bear their own costs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ca7ad3b50aef33abd879c20e64c976c1.jpeg', '23160d665cd9d45633a888731d4e5dfd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-18', 1, '', '', '2022-07-16 19:33:45', '2022-07-18 13:53:46'),
(1960, 'J4k3rRkxDhmyGTFdgDE25JlG6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Drugs and Cosmetics Act. Serving Government analyst report on accused after expiration of drug’s shelf life deprives valuable right of the accused to get the drug re-analysed. Criminal proceedings are liable to be quashed Karnataka High. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Stadmed Private Ltd and others Vs Union of India<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 891 of 2017 decided on 11 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Private complaint under Section 200 of Cr.P.C. was filed by the respondent for contravention of Section 18(a)(i) of the Drugs and Cosmetics Act, 1940 (for short \"Drugs Act\") punishable under Section 27(d) of the said Act, alleging that the subject drug which was manufactured by the petitioner was sent by the drug inspector concerned to the Government analyst for analysis in Form-No.13 as specified under Rule 46 of the Rules. The Government analyst submitted a report dated 22.1.2014, declaring that the subject drug manufactured by the petitioners-accused as not of the standard quality and the said report was received by the drug inspector concerned on 31.1.2014.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Learned counsel appearing for the petitioners-accused submits that the subject drug was manufactured by the petitioners-accused in the month of February 2011 and its shelf life was valid till January 2014. He further submits that the drug inspector concerned served notice to the petitioners-accused with a copy of the test report in Form No.13 after the expiry of the shelf life of the subject drug had expired, thus depriving the petitioners-accused of their valuable rights to send the subject drug for re-analysis with the Central Drugs Laboratory as specified under section 25 (4) of the Drugs Act. In support, reliance is placed on the decision of the Apex Court, in the case of Medicamen Biotech Limited and another vs. Rubina Bose, Drug Inspector, reported in (2008) 7 SCC 196. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. On the other hand, learned counsel appearing for the respondent submits that the subject drug was sent to Central Drug Laboratory and the report submitted by the said laboratory is conclusive and in the absence of any prejudice caused to the petitioners-accused, the petitioners cannot be said to have been deprived of their valuable rights for sending the subject drug for re-analysis as specified under Section 25(4) of the Drugs Act. In support, the learned counsel places reliance on the decision of the Hon\'ble High Court of Himachal Pradesh in the case of M/s Marc Laboratories Limited & others -Vs- Union of India in Cr.MMO No.43/2019, disposed of on 30.09.2019.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The subject drug was manufactured in the month of February 2011 and the shelf life was valid for a period of three years. The sample of the subject drug was drawn from the manufacturing unit of the petitioners-accused on 22.6.2012 and it was sent for analysis to the Government analyst in Form No.13. The Government analyst by report dated 22.01.2014 declared the subject drug as not of standard quality. The report was received by the Drug inspector on 31.1.2014 and by notice dated 23.06.2014, the report of the Government analyst was furnished to the petitioners-accused. The complaint was filed on 4.5.2016 by which time the shelf life of the subject drug had expired. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">7. Section 25 (4) of the Drugs Act specifies that unless the sample has already been tested or analyzed in the Central Drugs Laboratory, the learned Magistrate suo-moto or at the request of the accused, cause the sample of the drug produced before him to be sent for test or analysis to the said Laboratory which shall make the test or analysis and report in writing.<br></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. In the present case, the report of the Government analyst was served on the petitioners-accused or produced before the learned Magistrate, after the shelf life of the subject drug had expired, thus depriving the valuable rights of the petitioners-accused to send the subject drug for re-analysis since the report submitted by the Government analyst is not conclusive as specified under Section 25 (3) of the Drugs Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. Reliance placed by the learned counsel appearing for the respondent on the decision of the Hon\'ble High Court of Himachal Pradesh, in the case of M/s Marc Laboratories supra is not applicable to the fact of the case, since, the subject drug was sent to the Government analyst for analysis and not to the Central Government Drugs Laboratory which was the case on hand before the Hon\'ble High Court of Himachal Pradesh.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. ORDER: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space:pre\">	</span>Criminal petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '45a5b009779c026ccc74b51f614851da.jpeg', '2d035249b55633b8397b21d41578df1f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-18', 1, '', '', '2022-07-16 19:41:34', '2022-07-18 12:22:54');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1961, 'GmINBjpr3ly3j2ypAmN6MMhpJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Setting the criminal law in motion for recovery of disputed money is not what criminal law should be used for as it would amount to misuse of criminal law as a shortcut to seek recovery of money. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vilas Deore and State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 4346 of 2022 decided on 15 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Brief facts leading to the filing of the present petition, as borne out from the pleadings are, as follows:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petitioner is the Managing Director of one M/s Shriganesh Textiles and Infrastructure (India) Private Limited. The complainant is the Vice-President of M/s Himatsingka Company. Both M/s Shriganesh Textiles and Infrastructure (India) Private Limited and M/s Himatsingka Company are incorporated under the provisions of Companies Act, 1956. The petitioner/Company is in the business of conversion of cotton into cotton yarn and supplying it to the customers who deliver cotton bales to them. In the year 2021 the petitioner and the 2nd respondent/complainant entered into certain understanding with regard to supply of cotton and the petitioner agreed to convert such supplied cotton into yarn. It was agreed that the complainant would supply certain chunk of cotton bales for the petitioner to convert them into yarn and supply them back. This was the broad understanding between the petitioner and the complainant. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. In the month of October, 2021 certain dispute arose between the petitioner and the complainant with regard to the yarn being produced and them not being lifted from the premises of the petitioner. Several meetings were held between the parties but disputes remained with regard to payment, retention and delivery of yarn and became an issue between the two. Correspondences by way of electronic mail were also exchanged  between  the  parties  from  16-01-2022  to 14-02-2022. When no consensus was arrived at with regard to their disputes, a legal notice was caused by the complainant upon the petitioner invoking the provisions of the Insolvency and Bankruptcy Code, 2016 (‘the Code’ for short) indicating that proceedings under the Code would be initiated and a corporate resolution process would be put into force, if the amount that is indicated in the notice would not be paid. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4. For the notice that was sent on 09-03-2022, the petitioner/Company herein replied on 23.03.2022 answering to the disputed questions of fact or the amount that was sought in the notice. The matter did not attain any finality therein. The complainant on 08-04-2022 approached the Superintendent of Police, Hassan by registering a complaint against the petitioner alleging that an amount of Rs.9,01,07,640.43 with respect to 519.80 tonnes of cotton fiber was yet to be made good by the petitioner. On the same day, a complaint was made to the Officer-in-charge of the jurisdictional police station which then becomes crime in Crime No.100 of 2022 for offences punishable under Sections 406, 409, 418, 420 of the IPC. On registration of crime. The petitioner has knocked the doors of this Court in the subject petition calling in question the very registration of crime on 08-04-2022 making the petitioner an accused.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The learned senior counsel representing the petitioner would urge the following contentions:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(1)<span style=\"white-space: pre;\">	</span>The matter arises out of an understanding between the petitioner and the 2nd respondent/complainant and is purely civil in nature.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(2)<span style=\"white-space: pre;\">	</span>The complainant having invoked the provisions of the Code could not have scuttled the process and set the criminal law in motion.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(3)<span style=\"white-space: pre;\">	</span>The understanding was between the petitioner/ Company and the complainant/Company, but the crime is registered only against the petitioner who is the Managing Director of the Company, without the Company being made an accused. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. On the other hand, the learned senior counsel Sri C.V. Nagesh refuting the submissions would contend that even if the matter is purely civil in nature, if the act of the accused would amount to breach of trust or cheating, both civil and criminal proceedings are maintainable, as it is the action of the accused that requires scrutiny and trial. Since complaint is against both the petitioner and his Company, the said submission that the Company is not made an accused is untenable.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. In the teeth of the afore-narrated facts and correspondences between the parties, what is necessary to be considered at this juncture is, whether further investigation or proceedings should be permitted to be continued, as what is sought in the crime so registered and what is found in the notice issued under the Code are the same and the demand of the complainant is recovery of money.  Therefore, it becomes germane to notice the law laid down by the Apex Court from time to time with regard to complainants wanting to set the criminal law in motion in a purely civil liability, breach of agreement between the parties and for recovery of money.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13..... The afore-quoted judgments of the Apex Court were also interpreting offences punishable for criminal breach of trust as obtaining in Section 406 of the IPC, cheating as obtaining in Section 420 of the IPC and offences punishable under Sections 409 and 418 of the IPC which would be ancillary to Sections 406 and 420 of the IPC. Sections 406, 409, 418 and 420 of the IPC are the offences alleged in the case at hand.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14... On a coalesce of the afore-quoted judgments of the Apex Court what would unmistakably emerge is, for an offence punishable under Section 406 of the IPC which deals with criminal breach of trust, the ingredients as obtaining in Section 405 of the IPC should necessarily be present which are, the accused must be entrusted with the property or with any dominion over it. The person so entrusted must use that property dishonestly and dispose of that property which would result in willful suffering to the other person upon whom a legal contract is made in discharge of such trust. Entrustment or dishonest misappropriation of property which is entrusted to the accused is the soul of the said provision.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>15. The allegation against the petitioner is that he had sold the yarn which was kept in trust with the petitioner by the complainant with a dishonest intention and has misappropriated the same.  The contention of the complainant on the face of it is unacceptable, as the petitioner, not once, but twice has clearly indicated in the mails that if the yarn is not lifted and payment is not made, they would sell it in the open market to meet their contingencies. It is only after the said communication, the auction sale to meet their contingencies was taken up by the petitioner. Therefore, there can be no case of misappropriation with a dishonest intention which would result in breach of trust, as the complainant was very well aware of their default and the action that the petitioner would take if the yarn is not lifted. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>16. The other allegation is under Section 420 of the IPC which deals with cheating and for which, ingredients as found in Section 415 of the IPC is required to be present. This again, hinges upon the communications between the parties. There was absolutely no inducement with a dishonest intention by the petitioner right from the inception. It was a contract either oral or written between the parties for receipt of cotton bales for conversion into yarn and supplying it back. The sale of the yarn was also made aware to the complainant. Therefore, the ingredients of Section 415 of the IPC which are deception, fraudulent or dishonest inducement for delivery of any property to the detriment of the victim is not at all present in the case at hand. Therefore, the offence under Section 420 of the IPC also cannot be laid against the petitioner.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>18. The complainant initiated proceedings by invocation of the Code seeking recovery of money and that should have been taken to its logical end. Scuttling the said process and setting the criminal law in motion for recovery of the disputed money, is not what the criminal law should be used for, as it would amount to misuse of criminal law as a shortcut to seek recovery of money, that too without there being any ingredients of either Section 406 or 420 of the IPC existing. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>19. There has been a deluge of criminal cases brought before Courts alleging offences of criminal breach of trust or cheating, in purely commercial transactions, which arise out of breach of agreements or otherwise, without any ingredients of either of them and without taking recourse to any civil proceedings available for recovery of such money. Merely because civil proceedings would take a greater length of time for their conclusion, cannot mean the easier route of setting the criminal law in motion, for recovery of such money can be entertained or permitted to be entertained and continued. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>20. Therefore, in the light of the judgments rendered by the Apex Court and the facts obtaining in the case at hand, none of the offences that are alleged, on the bare perusal of the complaint can be laid against the petitioner. Permitting further proceedings to continue against the petitioner would amount to an abuse of the process of law and run foul of the postulates laid down by the Apex Court in the case of STATE OF HARYANA v. BHAJAN LAL – (1992) SCC (Crime) 426. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>21. Insofar as the contention of the learned senior counsel representing the 2nd respondent/complainant that both suit for recovery and registration of crime can be maintained, there can be no qualm about the said principles enunciated by the Apex Court in the case of VEENA MITTAL v. STATE OF UTTAR PRADESH AND OTHERS – Criminal Appeal No.122 of 2022 decided on 24.01.2022 and in the case of ARUN BHANDARI v. STATE OF UTTAR PRADESH AND OTHERS – (2013) 2 SCC 801. But, the finding in those cases was that ingredients of breach of trust or cheating were prima facie met. Therefore, the Apex Court holds that even if it is a matter which is purely civil in nature, criminal proceedings can be initiated in the facts obtaining in those cases. Those judgments are distinguishable without much ado, as the facts obtaining in the case at hand are entirely different than those obtaining in the case before the Apex Court and the answer qua the facts as observed hereinabove is that it does not meet the ingredients of Sections 405 or 415 of the IPC for it to become an offence under Sections 406 and 420 or even Sections 409 and 418 of the IPC. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>22. The other submission made by the learned senior counsel appearing for the petitioner need not be gone into as this Court finds that the very registration of crime is to be obliterated on the ground that it is a matter which is purely civil in nature and criminal law cannot be set in motion for recovery of money except in cases where ingredients of Section 406 and 420 of the IPC are present, which are conspicuously absent in the case at hand. Therefore, this becomes a fit case to exercise the jurisdiction of this Court under Section 482 of the Cr.P.C. to take off the Damocles sword hanging on the head of the petitioner, annihilate the very crime registered against him, in order to prevent the issue degenerating into harassment, becoming an abuse of the process of the law and eventually resulting in miscarriage of justice.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(i)<span style=\"white-space:pre\">	</span>The Criminal Petition is allowed and the FIR registered in Crime No.100 of 2022 by the Hassan Rural Police Station is quashed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0dfd3fd6caadfbc9367d7a1d18f1d701.JPG', 'eec2fd39e9f6196eafabe92099fa0762.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-18', 1, '', '', '2022-07-17 19:02:30', '2022-07-18 08:51:39'),
(1962, 'qtlw55CyevSLoCZuiHPhxte1N', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'In proceeding under Section 125 Cr.P.C, family Court must accept address provided in the petition supported by an affidavit. Technicality shall not defeat the purpose of the provision aimed at safeguarding wife and children. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sangeeta Bapu Lamani and others Vs Bapu Somappa Lamani.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>REV. PET Family Court 100043 of 2020 decided on 7 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice E.S. Indiresh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This petition is filed by the petitioners in Crl. Misc. No.145/2020 on the file of the Family Court, Dharwad, challenging the order dated 05.11.2020 on the file of the Family Court, Dharwad decline to accept the petition on the ground of territorial jurisdiction. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The Family court raised an objection with regard to the maintainability of the petition on the ground that the address shown in the cause title and the documents produced by the petitioners do not tally and therefore, the office objection was accepted by the learned Judge of the Family Court and returned the petition to the petitioner for presentation of the same before the jurisdictional Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. In this matter, though relevant documents have not been produced by the petitioners to say that they are residing at Dharwad, however, the petitioner has filed an affidavit stating that, she is residing with her Aunt Meenakshi Ritti’s House, at Dharwad. It has also come in the finding of the Family Court that the said Meenakshi Ritti is residing at Dharwad and therefore, the Family Court ought to have given an opportunity to the petitioners to have their say in the matter with regard to the proof of their residing in the house of their Aunt-Meenakshi Ritti. Since the petition is filed under Section 125 of Cr.P.C. which is a summary proceedings, the same requires immediate action by the Family court to safeguard the destitute wife and children. In the case of ABHILASH Vs. PARKASH, reported in AIR 2020 SC 4355, the Hon’ble Apex Court held that, the purpose of summary proceedings provided under Section 125 of Cr.P.C., is to provide immediate relief to the applicant. In the case of DWARIKA PRASAD SATPATHY Vs. BIDYUT PRAVA DIXIT AND ANOTHER reported in AIR 1999 SC 3348, the Hon’ble Supreme Court observed that the provision contained under Section 125 of Cr.P.C. is a measure of social justice extended to protect wife and children and to prevent vagrancy and destitution. It provides speedy remedy to deserted women. It is also well established principle in law that strict proof of marriage is not a condition precedent for providing maintenance and the reasonable period of living is sufficient [(2010) 10 Scale 602].  In the case of RAJNESH Vs. NEHA AND ANOTHER, reported in (2021) 2 SCC 324, the Hon’ble Apex Court observed that, the remedy provided under Section 125 of Cr.P.C. is a measure of social justice as envisaged under provision of the Constitution of India to prevent wife and children from falling into destitution and vagrancy. In the case of BHUWAN  MOHAN  SINGH  Vs.  MEENA  AND  OTHERS, reported in (2015) 6 SCC 353, it was held that, granting of maintenance to wife is for her sustenance. Sustenance does not mean animal existence, but signifies leading life in a similar manner, as she would have lived in the house of her husband.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. On perusal of the aforementioned finding recorded by Hon’ble Supreme Court, since Section 125 of Cr.P.C is a social measure providing immediate relief to the destitute wife and children, prima-facie, accepting the duly sworn affidavit by aggrieved parties (wife and children) that they are residing away from the matrimonial home and the address shown in the affidavit is to be accepted. Indeed the Family Court ought to have accepted the address provided in the petition supported by an affidavit by the petitioners and should have issued notice to the respondent. Raising objection with regard to residential proof of the petitioners at that juncture itself would defeat the very purpose of scope of Section 125 of Cr.P.C. Undisputably, the affidavit is supported by an application and the petition is preferred by the wife and children seeking maintenance. It is also recorded by the deponent in the said affidavit that they are residing separately from the husband/father and therefore, I am of the view that raising objection at the initial stage, directing the petitioners to provide a residential address with regard to the jurisdiction aspect, would defeat the entire legislative intention of Section 125 of Cr.P.C. May be, the jurisdictional aspect is required with regard to the competency of the Court, however, such a requirement may be an exception to the provisions under Section 125 of Cr.P.C. for the reasons mentioned above. If the applicant/petitioner filed petition along with an affidavit disclosing their residential address in the duly sworn affidavit, that itself is sufficient to continue the proceedings to provide immediate relief to the destitute wife/children.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>The petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e998296acf55f4e664ab6dad72cbbefa.JPG', '2aecd7274f5393432a23d0f2326e365c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-19', 1, '', '', '2022-07-18 16:53:07', '2022-07-19 12:06:02');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1963, 'lH7jYBhmYGl3TWI7ZWsfepBku', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'If trial court declines to frame or reframe issue despite request made by a party during pendency of suit, the same can be agitated in appeal against the final judgment. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Dharmrao Sharanappa Shabdi and others Vs Syed Arifa Praveen.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular First Appeal 200204 of 2019 decided on 6 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar and Justice S. Rachaiah.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The respondent herein initially filed the suit for declaration of title in respect of 24 acres 28 guntas of land in Sy.No.107 of village Kusnoor, taluk and district Kalaburagi (for short, `suit property\') and perpetual injunction to restrain the defendants from disturbing her peaceful possession over the suit property. By amending the plaint, she claimed further declaration that three sale deeds dated 25.02.1995 executed by Abdul Basit in favour of the defendants did not bind her interest and that they were null and void.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 2. For the sake of clarity and convenience, the parties are referred with respect to their ranks in the suit. Khudija Bee, the mother of the plaintiff became the owner of the suit property by virtue of a decree passed in O.S.No.68/1973. The plea put forward by the plaintiff was that her mother made oral gift of 10 acres of land out of the suit property in her favour on 05.12.1985 by delivering its possession to her and then on 05.01.1989, she executed a memorandum of gift evidencing the past oral gift. After the gift, there remained 14 acres 28 guntas in the possession of Khudija Bee. The plaintiff succeeded to the remaining extent of land of 14 acres 28 guntas after the death of Khudija Bee and thereby she became the owner of entire suit property. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The allegation against the defendants in the plaint is that on 14.10.2013, the defendants came near the suit property and tried to dispossess her on the strength of sale deeds said to have been executed on 25.02.1995 in favour of defendants 1 to 5 by one Abdul Bas who was not the owner of the suit land. The name of the plaintiff\'s father was Abdul Basit Saheb. Neither the plaintiff\'s mother nor the father executed any sale deed in favour of the defendants and therefore the sale deeds might have been created. Defendants asserted their right on the property and asked the plaintiff to hand over the possession to them. In these circumstances, the plaintiff was constrained to file the suit. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4. The defendants 1 to<span style=\"white-space: pre;\">	</span>5 in<span style=\"white-space: pre;\">	</span>their written statement, admitted that Khudija Bee was the original owner of the suit property. They denied the gift made by Khudija Bee in favour of the plaintiff and delivery of possession of 10 acres of land consequent to the gift. They also denied that the plaintiff succeeded to the remaining extent of 14 acres 28 guntas after the death of Khudija Bee. Their specific case is that they are the bonafide purchasers of suit land for valid consideration from one Abdul Bas @ Abdul Basit S/o Syed Hussain Saheb. They stated that the three names Abdul Bas, Abdul Basit and Syed Abdul Basit referred to the same person who was the husband of Khudija Bee. They denied the relationship of the plaintiff with Khudija Bee as according to them, the couple did not have issues. After the death of Khudija Bee, revenue records were mutated in the name of Abdul Basit and ascertaining the fact that Abdul Basit was the absolute owner, all the defendants individually purchased certain extent of land in Sy.No.107. In fact in the year 1981, Abdul Bas @ Abdul Basit sold them a house property. The plaintiff being the stranger cannot claim declaration of title over the suit property. There was no valid gift in her favour and therefore suit is to be dismissed.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>The trial court framed the following issues and additional issues based on the pleadings.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ISSUES</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space: pre;\">	</span>Whether the plaintiff proves that, she is having right, title and ownership over the suit schedule property? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Whether the plaintiff further proves that, she is in lawful possession and enjoyment over the suit schedule property as on the date of filing of this suit? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Whether the plaintiff further proves that, defendants have interfered in the peaceful possession and enjoyment of suit schedule property as alleged in the plaint? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>What order or decree?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ADDITIONAL ISSUES</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 1.<span style=\"white-space:pre\">	</span>Whether suit of plaintiff is barred by limitation? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space:pre\">	</span>Whether suit of the plaintiff in present form is maintainable?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. POINT NO.1: Sri Deepak V. Barad, learned counsel for the appellants/defendants argued that the plaintiff founded the relief of declaration of title on an oral gift said to have been made by Khudija Bee. The defendants denied the plaintiff to be the daughter of Khudija Bee. Therefore the trial court ought to have framed an issue regarding relationship. In the absence of an issue, the judgment of the trial court is not sustainable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. He further argued that according to the plaintiff herself, she studied upto 10th standard, and for that reason, she could have produced her SSLC marks card or any document obtained from the school to prove that she is the daughter of Khudija Bee and Abdul Basit. His argument was that the evidence of P.Ws.2 and 3 should not have been believed by the court and he emphasized that the trial court should have framed an issue regarding relationship. The defendants were thus deprived of an opportunity to rebut the case of the plaintiff that she is the daughter of Khudija Bee and Abdul Basit.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. It is true that the trial court has not framed an issue regarding relationship. Since the defendants denied the relationship with Khudija Bee and Abdul Basit and since she claimed declaration of title over the suit property, issue regarding relationship could have been raised by the trial court. That issue would have been an ancillary issue to the main issue of proving the title. Anyway the evidence on record shows that the plaintiff adduced evidence as P.W.1 and stated in her evidence affidavit that she was the daughter of Khudija Bee and Abdul Basit. Her cross-examination discloses a suggestion being given to her that she was not the daughter of Khudija Bee and Abdul Basit. P.W.2, Mohammad Khaya Mulla and P.W.3, Maqbool Ahmed have given evidence that the plaintiff is the daughter of Khudija Bee.  P.W.2 has stated that his mother and Khudija Bee\'s mother were first cousins. P.W.3 has stated that Syeda Arifa Parveen i.e., the plaintiff is the daughter of Syed Abdul Basit and he (P.W.3) married one Siraj Fatima who is the sister of Syed Abdul Basit. Evidence of these two witnesses is believed by the trial court to hold that the plaintiff is the daughter of Khudija Bee and Syed Abdul Basit. The trial court has referred to section 50 of the Indian Evidence Act to hold that the testimonies of P.Ws.2 and 3 are relevant in this context. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. We do not think that the trial court has given a wrong finding with regard to relationship. It is true that plaintiff could have produced a school document having studied upto 10th standard. Mere non-production of a school document does not take away the evidentiary value of P.Ws.2 and 3 in support of evidence of P.W.1 for establishing the relationship. The two witnesses have clearly stated how they are related to the plaintiff. The close relationship with the plaintiff\'s family makes their testimony believable.  Section 50 of the Indian Evidence Act states that whenever the court has to form an opinion regarding relationship of one person with the other, the opinion of any person, who, as a member of the family or otherwise, has a special means of knowledge is relevant. If the evidence of P.Ws.2 and 3 is assessed in the light of scope of section 50, they being close relatives of the plaintiff are in a better position to speak whether the plaintiff is the daughter of Khudija Bee and Abdul Basit or not. We do not see any reason to discard their evidence. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">14. Regarding issue being not framed, it may be stated that once the defendants came to know that relevant issue had not been framed by the court and if in their opinion an issue was very much essential, nothing prevented them from applying to the court under Order 14 Rule 5 of CPC for raising an issue regarding relationship. Order 14 Rule 5 of CPC is meant for the purpose of drawing the attention of the court of first instance to frame or reframe an issue so that the party on whom burden is cast can adduce evidence. Having failed to draw the attention of the court that an issue regarding relationship was necessary, the defendants cannot, in the appeal, complain of non-framing of an issue. It is not as though non-framing of an issue cannot be urged in the appellate court; it can be very much urged before the appellate court if the trial court declined to frame the issue or reframe the issue in spite of request made by a party during pendency of the suit. Otherwise, in our opinion, a party to the suit cannot complain of the same in the appeal.<br></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. POINT NO.2: The plaintiff has founded her title on the suit property referring to a hiba or an oral gift made by her mother. Ex.P.8 is the memorandum of gift deed. The trial court has held that Khudija Bee did execute Ex.P.8 evidencing the oral gift made by her on 05.12.1988, but has given a further finding that the gift was not acted upon as there was no delivery of possession of the property. Sri Deepak V. Barad argued that Ex.P.8 is actually a gift deed and not a memorandum of oral gift. It required registration. The second point of argument was that delivery of possession is the essential ingredient of gift made by a Mohammadan and since the evidence shows that there was no delivery of possession, the trial court has rightly come to conclusion that the gift was not acted upon.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21. It is true that the plaintiff did not apply for mutation on the basis of gift deed. The trial court has held that this cannot be a reason for disbelieving the gift but it has held that gift was not acted upon because the identity of gifted property does not get established because of  discrepancy in the evidence with regard to boundaries. The finding is to the effect that if a part of 24 acres 28 guntas was gifted to plaintiff, one of the four boundaries of the gifted property should have been indicated as remaining land in Sy.No.107. But the boundaries given in Ex.P.8 show that remaining land in Sy.No.107 is not mentioned on any of the four sides and in this view question of handing over possession would not arise as the identity of the gifted property is not established.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22.. If the boundaries are seen, it appears that they are not correctly mentioned as opined by the trial court. If 10 acres of land was a part of 24 acres 28 guntas in Sy.No.107, obviously one of the boundaries should have been shown as remaining land in Sy.No.107.  It is not written like that.<span style=\"white-space:pre\">	</span>Whether this could be a reason for holding that gift was not acted upon is the question. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23. While cross-examining P.W.1, she was questioned with regard to the boundaries and she gave the boundaries as mentioned in Ex.P.8. Merely because the boundaries appear to be not correctly written in Ex.P.8 and that P.W.1 asserts the same, taking a view that there was no delivery of possession consequent to oral gift is incorrect. All attending circumstances must be gathered. For this purpose reference may be made to Ex.D3 to D7, the sale deeds which the defendants rely upon for asserting their right and title. The sale deeds pertain to land in Sy.No.107 and if the boundaries mentioned in these sale deeds are seen, the Government road exists on the western side whereas in Ex.P.8 the road is shown to be in existence on the eastern side. Therefore there is discrepancy with regard to mentioning of the road in all these deeds. Moreover, P.W.1 has not been questioned in the cross-examination as to why one of the boundaries is not shown as remaining part of land in Sy.No.107. If she had been questioned, probably she would have given an explanation. In this view, the oral testimonies of P.Ws.2 and 4 can be given weightage as lending support to the testimony of P.W.1 that she took over possession of 10 acres of gifted land. The oral testimonies of these witnesses has not been impeached in the cross-examination. Therefore the finding of the trial court that the gift deed has not been acted upon cannot be accepted. We hold that the evidence on record discloses delivery of possession and thereby the gift became complete and that the plaintiff held its possession.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24. POINT NO.3: This is a question of law. The accepted principle is that if the plaintiff is not in possession of the immovable property, he must seek relief of possession. Many a time the plaintiff files a suit for declaration of title and injunction by pleading possession being with him. The evidence brought on record negatives plaintiff\'s possession and in that event the suit will have to be dismissed invariably. It was in this background, Sri Deepak V. Barad argued that possession of the plaintiff is not forthcoming in respect of the entire extent of 24 acres 28 guntas. The defendants purchased the entire land from Abdul Basit. Their names were entered in the revenue records. If really there was a gift in favour of the plaintiff in respect of 10 acres of land and that she succeeded to remaining extent of land after the death of Khudija Bee, she should have obtained revenue records to her name in order to presume possession being with her. She has admitted in her cross-examination that she did not apply for mutation; and Exs.D.9 to 16 clearly show that mutation was accepted in the name of the defendants based on the sale deeds, Exs.D.3 to 7. He also refers to Ex.D8 regarding sale of the property by Abdul Basit, which the plaintiff did not question. Therefore he argued that the plaintiff did not have actual possession and that the trial court should not have decreed the suit even applying the Mohammadan law of succession.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>27. While answering point No.2, we have already held that there is proof for delivery of possession of 10 acres of land by Khudija Bee to the plaintiff. It is not only on the basis of evidence of P.Ws.2 and 4 that we have come to this conclusion, but as argued by Sri Ameet Kumar Deshpande, particularly in the background of the relationship of mother and daughter between Khudija Bee and the plaintiff, the delivery of possession can be inferred. It is not necessary to discuss the same aspect once again. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>28 . The possession of the plaintiff can be said to have continued on the remaining extent of her share in the suit property after the death of her mother. The plaintiff and her father simultaneously succeeded to the property to the extent of their respective shares according to their personal law. So the joint possession of the plaintiff with her father can be inferred. It is not the case of the defendants that there had taken place a division of property between the plaintiff and her father. Plaintiff\'s father could not have sold the entire land of 24 acres 28 guntas as he had no right over the entire extent. That means the defendants purchased undivided share of plaintiff\'s father and therefore it was necessary for them to file a suit for partition and possession. This kind of a suit having not been filed by the defendants, it can be said that the plaintiff continued to be in possession of the suit property with her father and after the death of her father, the possession of entire land remained with her. She  continues  to  hold  the possession of entire land until the defendants seek partition and possession of whatever the share they are entitled to as per discussion on point No.4. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>29. Here is a case where the transfer was from mother to daughter. As we are of the opinion that not only delivery of possession by Khudija Bee in favour of the plaintiff could be inferred, but also there is evidence which shows that there was actual delivery of possession. For this reason, the argument of Sri Deepak V. Barad does not stand. We do not find any error in the decision of the trial court to grant declaratory relief.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>30. POINT NO.4: The trial court, as stated above, has moulded the relief to grant declaration in respect of 18 acres 21 guntas of land out of 24 acres 28 guntas in Sy.No.107 applying Mohammadal law of succession. As we have held that Khudija Bee made a gift of 10 acres of land and it was accepted by the plaintiff taking over possession of the land, we may state that the plaintiff would become entitled to more extent of land than what the trial court has held. Despite the fact that the plaintiff has not questioned the finding of the trial court, here is a case for further moulding the relief notwithstanding no cross-objection being filed by the plaintiff. In fact, cross-objection was not necessary to be filed because the plaintiff claimed declaration of title in respect of entire extent of land basing her claim on the gift deed to the extent of 10 acres and succession to the remaining land after the death of her mother. But the plaintiff\'s father executed sale deeds in favour of defendants in respect of entire extent of land. The trial court has rightly held that Abdul Basit could not have executed the sale deeds for the entire 24 acres 28 guntas and that those sale deeds can be sustained only to the extent of his share. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">31. According to Mohammadan law of inheritance, the plaintiff and Abdul Basit being the daughter and husband of Khudija Bee respectively are sharers. After the death of Khudija Bee, in the property left behind by her, the plaintiff succeeded to ½ share and Abdul Basit to 1/4th share. Still there remained 1/4th residue, and if the Rule of Return or Radd, is applied, the plaintiff became entitled to 1/4th residue and thus her total entitlement in the property left behind her mother enlarged to 3/4th. Therefore the sale deeds executed by Abdul Basit in favour of the defendants was valid and enforceable only to the extent of his 1/4th share in the properties that remained with Khudija Bee after she made oral gift of 10 acres in favour of the plaintiff. The plaintiff succeeded to 3/4th in the remaining property of her mother in addition to 10 acres of land that she got by gift. This is how the reliefs can be moulded in accordance with Order 41 Rule 33 of the Code of Civil Proc</font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">edure.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>32. POINT NO.5: The trial court has held that suit is not time barred.  According to Sri Deepak V. Barad, the plaintiff challenged the sale deeds by amending the plaint and by that time, the limitation period for seeking the relief of declaration had expired. But this argument of Sri Deepak V. Barad cannot be accepted because the principle is that whenever amendment of pleading is permitted, it relates back to the date of suit unless the order granting amendment specifies the day on which amendment comes into effect. In this case, it is not the argument of Sri Deepak V. Barad that the amendment came into effect from the date of granting of application for amendment. Moreover, the plaintiff could have just averred in the body of the plaint that the sale deeds did not bind her interest without specifically claiming declaration as regards the validity of the sale deeds. Merely because the plaint was amended at a later stage, the suit did not become time barred. In the plaint, the plaintiff has stated that it was on 14.10.2013, the defendants tried to dispossess her on the strength of the sale deeds and that the limitation should be reckoned from the first date of invasion on the right and title of the plaintiff. The suit was filed on 20.08.2013. Therefore suit was filed within time. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>From the above discussion, we come to conclusion to dismiss the appeal with a modification in the judgment to the effect that the plaintiff is declared to be the absolute owner of 10 acres of land gifted by her mother and 3/4th of 14 acres 28 guntas in Sy.No.107 of village Kusnoor, taluk and district Kalaburagi. Till the defendants carve out their share in accordance with law, they shall not disturb the possession of plaintiff in respect of entire land. There is no order as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '30d3d08afc3b1243fb644a017df3b96d.JPG', '85ed696ec6c2ebe1b9c75c0844b57af8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-19', 1, '', '', '2022-07-18 17:31:52', '2022-07-19 15:15:35'),
(1967, 'HWF0i0p1kk3zLISSyCTqYGLoD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Stay of execution proceedings under Order 21 Rule 29 during pendency of suit does not apply when the suit if filed after initiation of the execution proceedings. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rohit Rajkumar Kukreja and others Vs G. Ramaiya Reddy and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>COMAP 36 of 2022 decided on 8 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P.S. Dinesh Kumar and Justice C.M. Poonacha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Brief facts of the case are, respondents No.1 to 4 are the owners of properties bearing Municipal Nos.15, 16 and 17 on Cunningham road, Bengaluru. They entered into an agreement with M/s IDEB Projects1 and a Mall named as \'Sigma Mall\' was constructed on the land. Appellants are sub-lessees in respect of their respective shops in the Sigma Mall. IDEB did not fulfill it\'s terms of lease. In substance, it did not pay any money to the land owners and they initiated arbitration proceedings and obtained an award for delivery of possession and payment of arrears of rent. In the Commercial Execution Case No.4305/2018 filed by the land owners, appellants filed an application under Order 21 Rule 97 CPC for dismissal of Execution proceedings and to declare that appellants had independent right over the property and the arbitral award was void. The same has been dismissed by the Commercial Court. Hence, these appeals.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10. Undisputed facts of the case are, land owners have executed first lease deed dated March 13, 2006 in favour of M/s IDEB.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. Thus, the lease deed provides for sub-lease for a period co-terminus with the date of expiry of the lease deed and land owners have been protected against any claim by the sub-lessees. Further, M/s IDEB has covenanted to secure vacant possession from the sub-lessees and deliver it to land owners on expiry of lease.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13. Thus, in case the first lease is terminated or determined, then the second lease shall automatically and forthwith come to an end and stand cancelled. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14. Land owners have filed statement of objections and produced sub-lease agreement dated July 27, 2006 as per Annexure-R5. Shri Nayak, on instructions submitted that all sub-leases have been executed by M/s IDEB for periods beyond 30 years. Adverting to Annexure-R5, he pointed out that sub-lease in this case between M/s IDEB and Mr.Raju Swamy is for a period of 56 years. The first lease deed would expire by efflux of time on March 26, 2026. The same has been determined by the land owners and the arbitral award has been passed on November 3, 2014. Therefore, according to Shri Nayak, second lease deeds have automatically come to end. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15. It is also not in dispute that only M/s IDEB is the sole respondent in the arbitration proceedings. In response to Shri Basavaraj\'s contention that the award is not binding on the appellants because they were not parties in the arbitration proceedings, Shri Nayak, placing reliance on  Roopchand  Gupta  Vs.  Raghuvanshi(Private)  Ltd.  and another submitted that sub-lessee need not be made as party. Roopchand Gupta has been followed consistently in Burma Shell Oil Distributing now known as Bharat Petroleum Corporation Ltd. Vs. Khaja Midhat Noor and others and Balvant N. Viswamitra & others Vs. Yadav Sadashiv Mule (dead) through LRs. & others4  Therefore, the contention that appellants were not parties before the Arbitral Tribunal is untenable.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17. It was argued by Shri Nayak that this provision is applicable where holder of a decree and land owners in this case is resisted by any person during the course of execution. He contended, appellants have filed their application under Order 21 Rule 97 CPC even before issuance of delivery warrants. Therefore the said application is not maintainable. He also contended that O.S.No.4488/2021 was filed after execution petition was filed. Therefore, no proceeding was pending as on the date of filing of the execution petition. Therefore, appellants\' application under Order 21 Rule 29 CPC was not maintainable at all.  Shri Basavaraj fairly submitted that suit was indeed filed after filing the application under Order 21 Rule 29 CPC. In our view, Shri Nayak is right in contending that appellants\' application under Order 21 Rule 29 CPC was not maintainable because, suit was filed subsequently. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18. The Executing Court has held that appellants have failed to establish their independent right in the Mall and therefore not entitled for any enquiry under Order 21 Rule 101 CPC. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19. In view of Roopchand and other subsequent decisions referred to above, sub-lessees need not be made as parties. By the arbitral award, lessee has been directed to hand over possession of the properties. M/s IDEB is facing liquidation proceedings. Appellants have entered into sub-leases after execution of second lease deed between owners and M/s IDEB and the same has been recorded in the sub-lease (Annexure-R5). Thus, the finding recorded by the Executing Court that appellants have failed to establish their independent right and therefore, not entitled for an enquiry under Order 21 Rule 101 CPC, does not call for interference. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20. Resultantly, these appeals fail and they are accordingly dismissed. No Cost. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8f204f4288f5b73fba3458ffb5aacfbe.jpg', '1ad3a46832f9951fd6c6a1c1bf6be505.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-21', 1, '', '', '2022-07-19 16:56:35', '2022-07-21 12:25:58'),
(1968, 'pE5eH3EBU8Aratztd4CH3CsL3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Imposition of costs under Section 35 CPC shall be realistic and practical based on sound judicial principles and reasonings, and in proportion to the success and failure and not in a fanciful and whimsical manner. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Precious Blood Missionaries and others Vs Nishanth Luize.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>OP(C) 2995 of 2018 decided on 6 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice C.S. Dias.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The petitioners’ case, in a nutshell, relevant for\r\nthe determination of the original petition is that they are\r\nthe defendants in O.S.No.35/2014, filed by the\r\nrespondent, before the Court of the Additional\r\nSubordinate Judge, North Paravur, for a decree to direct\r\nthe petitioners to execute the registered sale deed in\r\nrespect of the plaint schedule properties or alternatively\r\nto permit the respondent to recover from the petitioners\r\nan amount of Rs.6,36,00,000/- with interest. The\r\nrespondent had filed Ext.P1 plaint, inter alia, contending\r\nthat the petitioners had agreed to sell their properties\r\nhaving an extent of 285.13 ares of land in Alangad <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">village, elaborately described in the schedule appended\r\nto the plaint, to the respondent for an amount for\r\nRs.1,75,000/- per cent. Pursuant to the agreement of\r\nsale dated 15.04.2011 entered into between the parties,\r\nthe respondent had paid the petitioners an advance sale\r\nconsideration of Rs.1,00,00,000/- on different dates.\r\nAlbeit the requests made by the respondent to the\r\npetitioners, they willfully refused to execute the sale\r\ndeed. Hence, Ext.P-1 was instituted. The petitioners had\r\nfiled Ext.P2 written statement refuting the allegations in\r\nthe plaint. The court below, by Ext.P2 judgment, partly\r\ndecreed the suit by Ext.P.3 decree, permitting the\r\nrespondent to recover from the first petitioner the\r\nadvance sale consideration of Rs.1,00,00,000/- with\r\ninterest and costs. As per Ext.P3 decree, the petitioners\r\nare directed to pay the respondent an amount of\r\nRs.1,11,94,848/- as costs. The costs awarded by the\r\ncourt below are contrary to the provisions of the Code of\r\nCivil Procedure, 1908 (in short, ‘Code’) and the Rules </span></span><span style=\"font-size: 12pt;\">framed thereunder. Hence, the petitioners had filed\r\nExt.P4 application to correct the decree. The respondent\r\nhad objected to the application by filing Ext.P5 counter\r\nobjection. The court below, on an erroneous appreciation\r\nof the facts and the law, by the impugned Ext.P6 order,\r\nhas dismissed Ext.P4 application. Ext.P6 is ex-facie\r\nillegal and unsustainable in law. Hence, the original\r\npetition.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. In the case on hand, the respondent had sought\r\na decree to direct the petitioners to execute the registered sale deed in respect of the plaint schedule\r\nproperty or, alternatively, to permit the respondent to\r\nrealise from the petitioners an amount of\r\nRs.6,36,00,000/- (i.e., to recover Rs.1,00,00,000/- (the\r\nadvance sale consideration paid), Rs.5,00,00,000/-\r\n(damages for breach of agreement) and Rs.36,00,000/-\r\n(interest on the said amount)). The valuation in the plaint\r\nfor relief ‘A’ is Rs.12,32,93,100/- and for relief ‘B’ is\r\nRs.6,36,00,000/-. The respondent has paid the court fee\r\non relief ‘A’ as provided under Section 42 of the Kerala\r\nCourt Fees and Suits Valuation Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. A literal interpretation of Ext.P2 judgment leads\r\none to only one inference that the court below has\r\ndirected the 1st petitioner to pay the respondent an\r\namount of Rs.1,00,00,000/- with interest and costs. The\r\nword ‘and’ has to be read conjunctively with\r\nRs.1,00,00,000/- and not distinctively, to mean that costs\r\nare on the whole plaint claim of Rs.12,32,93,100/-, as\r\ninterpreted by the respondent in the statement of costs.\r\nIf that was the case, the court below was bound to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">expressly state, in unambiguous terms, that the suit is\r\ndecreed for Rs.1,00,00,000/-, but interest and costs on\r\nthe plaint amount. It would be absurd and ridiculous to\r\nstate so because, although the respondent had sought a\r\ndecree of Rs.12,32,93,100/- in respect of relief ‘A’ and\r\nRs.6,36,00,000/- in respect of relief ‘B’, the court below,\r\nafter a full-fledged trial, arrived at a conclusion that the\r\nrespondent is only entitled to a decree of\r\nRs.1,00,00,000/-. So, therefore, the respondent\'s\r\nentitlment is found to be only Rs.1,00,000/- and not\r\nanything more. It is trite, costs should follow the event,\r\nand should be in proportion to the success or failure of\r\nthe parties. By stating that the suit is decreed for\r\nRs.1,00,00,000/- with interest and costs, it can only\r\nmean that the costs are only for Rs.1,00,00,000/-;\r\notherwise, it would lead to unrealistic and\r\ndisproportionate costs, i.e., where the costs exceed the\r\ndecree amount. Also, if such an irrational interpretation\r\nis given, it can also be argued that the interest quotient </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is on the plaint valuation and not on the decree amount.\r\nTherefore, I am of the definite view that the court below\r\nin Ext.P2 judgment has only allowed costs on the decree\r\namount of Rs.1,00,00,000/- and not on the plaint claim of\r\nRs.12,32,93,100/-. Unfortunately, the court below has\r\nfailed to interpret the judgment as per the mandate\r\nunder sub-rule (2) of Rule 196 of the Civil Rules of\r\nPractice, Kerala.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. On a consideration of Section 35 of the Code of\r\nCivil Procedure and the law laid down in the afore-cited\r\ndecisions, it is beyond any pale of doubt that awarding\r\nof cost is the absolute discretion and power of the court,\r\nthat too in a realistic and practical manner based on\r\nsound judicial principles and reasonings, and in\r\nproportion to the success and failure and not in a\r\nfanciful and whimsical manner, except in exceptional\r\ncircumstances.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. As already discussed, notwithstanding the court\r\nbelow partly decreeing the suit for Rs.1,00,00,000/- with\r\ninterest and costs, the court below has not considered\r\nthe statement of costs filed by the respondents in its <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">proper perspective, instead has accepted the same in a\r\nmechanical and casual manner, without any application\r\nof mind, and has drawn the particulars of costs in Ext.P3\r\ndecree on the plaint valuation, which is erroneous and\r\nunsustainable in law. I hold that the amount ordered as\r\ncosts in Ext.P3 is unconscionable, unrealistic and\r\ndisproportionate. I am of the definite view that Ext.P2\r\njudgment has been wrongly interpreted by the court\r\nbelow. There is a clerical error in Ext.P3 decree as\r\nregards the particulars of cost, which is liable to be\r\ncorrected under Section 152 of the Code of Civil\r\nProcedure and Article 227 of the Constitution of India.\r\nHence the original petition is to be allowed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In the result, the original petition is allowed in the\r\nfollowing manner<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iii) Ext.P.3 decree is modified by directing the 1st\r\ndefendant to pay the plaintiff an amount of\r\nRs.1,00,00,000/- with interest on the said amount at the\r\nrate of 9.5.% per annum from 15.04.2011 till the date of\r\ndecree and thereafter at the rate of 6% per annum till\r\nrealisation and proportionate cost on Rs.1,00,00,000/-.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iv) The Court of the Additional Subordinate Judge,\r\nNorth Paravur is directed to correct and redraw Ext.P.3\r\ndecree, as directed in relief No.(iii) of this judgment and\r\nissue the corrected decree to the parties.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(v) The parties shall bear their respective costs of\r\nthis proceeding.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f1f12bb2263cba2f3d5385772ab1b259.jpg', 'a41a9fd8d3bcd9a42fe0095638bfbee7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-20', 1, '', '', '2022-07-19 18:12:55', '2022-07-20 10:21:48');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1965, 'JmA2QzzmUUGhgGgoFXI3VGb27', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Share application money given for allotment of shares prior to 1 April 2014 cannot be treated as “deposit” and hence penal interest cannot be levied on the Company under the Companies (Acceptance of Deposits) Rules, 2014. Delhi High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nitin Rekhan Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. (Crl.) 559 of 2020 decided on 15 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Chandra Dhari Singh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The matter has arisen out of the facts as detailed hereunder:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>a. The Petitioner is a businessman by profession whereas\r\nthe Respondent No.3 is a private limited company\r\nengaged in the business of Real Estate.\r\nb. The Petitioner had paid Rs. 40,00,000/- (hereinafter\r\nreferred to as the “amount in question”) to the Directors\r\nof Respondent No. 3 Company for issuance of shares in\r\nthe said company on 27th December 2010 by depositing\r\nthe share application money in A/C No.\r\n5582000100022401 maintained with Karnataka Bank\r\nLimited, Karol Bagh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>c. The Respondent No.3 Company failed to allot the shares\r\nas promised to the Petitioner and returned the money on\r\n9\r\nth February 2018 through RTGS. It is alleged that\r\nhowever, the said Company failed to repay the interest\r\naccrued on the amount in question as per Companies\r\n(Acceptance of Deposits) Rules, 2014 and Rule 17 of the\r\nCompanies (Acceptance of Deposits) Rules, 2014.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>d. The Petitioner approached the Registrar of Companies\r\n(Respondent No.2) by filing an online complaint on 11th\r\nDecember 2018 for non-compliance of the Companies\r\n(Acceptance of Deposit) Rules, 2014 by Respondent\r\nNo.3 Company and for the recovery of the Interest <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Amount. The Deputy Registrar of Companies, Delhi\r\nissued a Show Cause Notice dated 14th May 2019 to the\r\nRespondent No.3 Company.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>e. Despite the issuance of Show Cause Notice, it is alleged\r\nthat no action was taken by the Respondent Company on\r\nthe complaint filed by the Petitioner. The status of the\r\nsame is currently reflected as “under examination” on the\r\nwebsite of the Ministry of Corporate Affairs.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> f. The Petitioner has also preferred a private complaint\r\nunder Section 200 of the Code before the Special Judge,\r\nDwarka Courts, Delhi against Respondent No.3 and\r\nothers including the Respondents No.1 and 2 for not\r\nhaving taken any action against Respondents No. 3 to 7\r\nas per the law under Section 73 and 76A of the\r\nCompanies Act, 2013.\r\ng. By way of the instant writ petition, the Petitioner has\r\nprayed for passing appropriate orders and direction to the\r\nrespondent No. 2 to do their duty in accordance with law\r\nand to prosecute Respondents No.3 to 7 under Section 73\r\nand 76A of the Companies Act, 2013 and to take\r\nappropriate action on the complaint filed by the\r\npetitioner.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Learned counsel appearing on behalf of the Petitioner submitted\r\nthat the Petitioner had paid amount in question to the Directors of\r\nRespondent No.3 Company for issuance of shares in the said company on\r\n27th December 2010 by depositing the share application money in A/C\r\nNo. 5582000100022401 maintained with Karnataka Bank Limited, Karol\r\nBagh. It is submitted that the petitioner has filed a copy of the Bank\r\nStatement of February 2018 and that the Petitioner was further issued an\r\nIncome Tax Notice dated 24th September 2018 thereby confirming the\r\ndeposit of the said amount as share application money. It is further\r\nsubmitted that despite this, the shares were never allotted.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. It is further submitted that the Respondent No.7 M/s PVRN & Co.,\r\nthe auditors of Respondent No. 3 Company acting in connivance with the\r\nRespondent No. 3 Company and other key managerial persons have been\r\ninvolved in a well-calculated fraud carrying activities in violation of the\r\nprovisions of the Companies Act, 2013. It is stated that as an illustration\r\nand specimen of the fraudulent practices of the Respondent No. 3\r\nCompany, the Petitioner has annexed the Balance Sheet of the year 2016-\r\n17 of the Respondent No. 3 Company to show the acceptance of\r\nunsecured deposit of Rs. 60,00,000/- from one Jakesh Kumar Sagar.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">5</span><span style=\"font-size: 12pt;\">. The learned counsel for Petitioner submitted that the petitioner is\r\naggrieved due to inaction on behalf of the Respondent No. 2 in dealing\r\nwith the complaint of the Petitioner seeking enquiry into the financial\r\nirregularities, serious economic offences and illegal conduct of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Respondent No. 3 Company in accepting the deposits in contravention of\r\nprovisions of Companies Act, 2013 and for repayment of the interest as\r\nper the provisions of law.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>6. The learned counsel for the Petitioner has contended that\r\nRespondent No. 2 has failed to register the case against the Respondent\r\nNo. 3 and to carry out their statutory duty, which is in blatant violation of\r\nprovisions of the Companies Act, 2013 and Companies (Acceptance of\r\nDeposits) Rules, 2014. It is submitted that the delay in enquiry and\r\ninvestigation on part of the Respondent No. 2 is acting as a shield for the\r\nRespondent No. 3 Company.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. Learned counsel for the Petitioner further submitted that the\r\nSection 2(31) of the Companies Act, 2013 defines the term “deposit” as\r\nincluding any receipt of money by way of deposit or loan or in any other\r\nform by a company. Further, it is submitted that Rule 2(1)(c) of\r\nCompanies (Acceptance of Deposit) Rules, 2014, defines the term\r\n“deposit” and excludes various amounts received by a Company from the\r\nambit of Deposit which shall not be considered as deposits.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>8. It is also submitted that as per the provisions of Rule 2(1)(c)(vii) of\r\nCompanies (Acceptance of Deposit) Rules, 2014, it is clear that the\r\nmoney paid towards the share application for allotment shall be treated as\r\ndeposits if the said money is not refunded within 60 days from\r\nacceptance. Accordingly, it is submitted that the money paid by the\r\npetitioner to the Respondent No.3 was hence qualified to be treated as\r\ndeposits since no shares were allotted to him.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. A mere perusal of the petition makes it evident that the crux of the\r\nentire matter lies in adjudicating whether the penal interest as being\r\nclaimed by the petitioner is applicable on the amount in question paid to\r\nthe Respondent No. 3 Company. This can be decided by answering the\r\nfollowing questions:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>a. Whether the Companies Act 2013 and the Companies\r\n(Acceptance of Deposit) Rules, 2014 is applicable on the\r\namount in question?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>b. Whether the amount in question can be treated as\r\n“deposit”?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. It is pertinent to note that the provisions of Companies Act 2013\r\ndid not come into force on a single date, rather they have come into\r\noperation in phases. In the first phase, the Ministry of Corporate Affairs\r\nvide its notification dated 12th September 2013 notified 12th September\r\n2013 as the date on which certain provisions of the Companies Act, 2013\r\nwould come into force. It was followed up by a notification dated 27th\r\nFebruary 2014, notifying Section 135 of the Companies Act, 2013 and\r\nSchedule VII, to be effective from 1st April 2014. Subsequently, in the\r\nthird phase, by notification dated 26th March 2014, the Ministry notified\r\n1\r\nst April 2014 as the date on which certain provisions and all remaining\r\nschedules of the Companies Act, 2013 would come into force.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. Section 2(31) of the Companies Act, 2013 that defines “deposit”,\r\ncame into force from 1st April 2014 and as such, it cannot be applied\r\nretrospectively for the share-purchase agreement between the Company\r\nand Petitioner that was entered into between the parties back in the year\r\n2010, way back in time before the commencement of the 2013 Act and its\r\nprovisions.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. Furthermore, the Companies (Acceptance of Deposits) Rules, 2014\r\nas notified by MCA vide notification No. G.S.R 256(E) dated 31st March\r\n2014 came into force on 1st April 2014. Therefore, the said Rules of 2014\r\ncan also not be applied on the amount in question. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. It is evident that amount in question was given by the Petitioner in\r\nthe year 2010 and was returned to him by the Respondent Company in\r\nthe year 2018. Hence, the same shall be governed by the provisions of the\r\nCompanies Act, 1956 read with Companies (Acceptance of Deposits)\r\nRules, 1975 and the Companies Act, 2013 and Companies (Acceptance of\r\nDeposits) Rules, 2014 does not apply.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. As per this circular, the amount received by the private companies\r\nprior to 1st April 2014 shall not be treated as “deposits” under the\r\nCompanies Act, 2013 and Companies (Acceptance of Deposits) Rules,\r\n2014 provided that the same was disclosed in financial statement for the\r\nfinancial year commencing on or after 1st April 2014.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>35. Therefore, as per Rule 2(b)(vii) of Companies (Acceptance of\r\nDeposits) Rules, 1975 read with General Circular No. 15/2015, the share\r\napplication money given by the Petitioner for allotment of shares cannot\r\nbe treated as “deposits”. Therefore, as such, the question of applicability\r\nof penal interest does not arise.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>36. Having considered the entirety of facts and circumstances of this\r\ncase, as well as the provisions of law as applicable, this Court has come\r\nto the conclusion that the amount in question cannot be treated as\r\n“deposit” and as such does not attract the penal interest that would have\r\notherwise applied, for the following reasons:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>a. firstly, the money was given by the Petitioner in the year\r\n2010, and was returned by the Respondent Company to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Petitioner in the year 2018, and hence the same shall\r\nbe governed by the provisions of The Companies Act,\r\n1956 read with Companies (Acceptance of Deposits)\r\nRules, 1975;</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">b. secondly, as per the General Circular No. 05/2015 dated\r\n20th March 2015 released by the Ministry of Corporate\r\nAffairs in consultation with RBI, the amount received by\r\nthe private companies prior to 1st April 2014 shall not be\r\ntreated as deposits under the Companies Act, 2013 and\r\nCompanies (Acceptance of Deposits) Rules, 2014\r\nprovided that the same was disclosed by in financial\r\nstatement for the financial year commencing on or after\r\n1\r\nst April, 2014; and</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>c. thirdly, as rightly contended by the learned counsel for\r\nthe Respondents No. 1 & 2, the inaction of the Office on\r\nthe said letters dated 11th December 2018 and 31st\r\nOctober 2019 was by virtue of the fact that the prayers\r\ncontained therein were outside the purview of jurisdiction\r\nof Respondents No. 1 & 2.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">37. Therefore, for the reasons as aforestated, this Court is of the\r\nopinion that no case for exercise of writ jurisdiction is made out. In any\r\ncase, the contractual relations or other obligations arising therefrom\r\nbetween the Petitioner and the Respondent No. 3 are outside the scope of\r\nthe instant writ petition. It is open for the Petitioner to explore and pursue </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">part of Respondent No. 3 Company. As such, no cause of action has\r\narisen against the Respondents No. 1 & 2, Ministry of Corporate Affairs\r\nand Registrar of Companies, for adjudication between a matter pertaining\r\nto the private contract between two individual parties.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">38. Hence, in light of the foregoing discussion and analysis, there are\r\nno cogent reasons to entertain the petition and allow the prayers sought\r\ntherein. In the aforesaid terms, the instant petition stands dismissed.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0038f7e209eb362281ce0ce49f2df7c4.jpg', 'bf6dfce49d2c627a2d700d3119010fbb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-19', 1, '', '', '2022-07-18 18:03:43', '2022-07-19 08:30:43'),
(1966, 'u56bBLdzlXkMEwRkXTaKGpqYk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Once layout plan is sanctioned after verifying water course, pathway etc, Planning Authority must inspect formation of layout as per the sanctioned plan. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><o:p> </o:p><span style=\"font-size: 12pt;\">Saagam Realty Private Limited Vs State of Karnataka and others.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Writ Petition 17005 of 2021 decided on 4 July 2022.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Justice R. Nataraj.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The petitioner has sought for a writ in the nature of mandamus to the respondent No.2 to issue requisite direction for release of 40% of the sites that were withheld at the time of sanction of the plan to the petitioner. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The petitioner claims that he had applied for sanction of a plan to form a residential layout named “Sindhu Nagar” in the land comprised in Sy. Nos.51, 55/1 and 63 and situate at Muskam village, Robertsonpet Hobli, K.G.F. Taluk, Kolar District, which will henceforth be referred to as ‘the layout’. The respondent No.2 being the competent authority had granted sanction of a layout plan on  06.03.2010.   As  provided  under  Section  17  of  the Karnataka Town and Country Planning Act, 1961, the respondent No.2 had not released 40% of the sites and had withheld them in anticipation of the petitioner completing the layout in all respects. The petitioner contends that even after the layout was completed in all respects, the respondent No.2 failed to release 40% of the sites withheld. Consequently, the petitioner submitted a representation on 03.09.2020 requesting the respondent No.2 to release the sites. The respondent No.2 in terms of a letter dated 01.10.2020, requested the petitioner to submit Work Completion Certificate/s from the concerned Authorities/Departments in proof of the completion of the work in the layout. The petitioner in terms of the letter dated 04.12.2020 (Annexure ‘K’ to the petition) replied that it had applied to the concerned Authorities/Departments for issue of Work Completion Certificates and had enclosed therewith the Work Completion Certificate dated 27.11.2020 issued by the Bangalore Electricity Supply Company Limited. However, the  respondent  No.2  slept  over  the  matter  despite unending visits of the petitioner to the office of the respondent No.2 which prompted the petitioner to cause a notice dated 21.08.2021. Since the respondent No.2 has not budged from its position, the petitioner is before this Court seeking for an appropriate direction. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. The learned Senior Counsel who represented the petitioner submitted that the layout is formed as per the plan sanctioned which is based on the Master plan approved by the State Government. Therefore, he submits that the respondent No.2 is bound to inspect the layout in the presence of the petitioner and thereafter release the sites that are withheld. He further submitted that the assertions now made by the respondent No.2 in the statement of objections are not found in the impugned Order and therefore, the same cannot be considered. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. The learned counsel for the respondent No.2 submits that the petitioner was granted a commencement certificate on 15.10.2011 requiring it to complete the layout in all respects by 2015.  It is claimed that the petitioner had failed to adhere to the Government Order and other notifications and hence, the petitioner is not entitled for any relief at the hands of this Court.  He further submitted that the State Government had issued an Order to impose penalty at the rate of 3% of the guidance value if the layout was not developed as agreed, hence he claimed that in view of the Government Order dated 22.11.2018, the petitioner is liable to pay 3% of the prevailing guidance value as penalty for not forming the layout in time.  He further submitted that the petitioner has encroached into the public road, Kalyani, storm water drain (rajakaluve) and destroyed temples that were in existence since several decades and had encroached upon a tank that is in existence in the land bearing Sy. No.64 and had diverted a rajakaluve according to the convenience of the petitioner. He further submitted that when the lands in question were converted for non-agricultural residential use on 09.03.2009, the respondent No.2 had imposed five conditions which were also violated by the petitioner with impunity. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">5. The learned counsel further submits that the land in Sy. No.51 of Mashikam was shown a ‘Halla’ in the second re-classification as per akarband. It was found that the petitioner had encroached into the land in Sy. No.51 and had changed the course of nala as per the sketch dated 04.02.1962 and the actual survey dated 14.01.2017 which indicated that the nala commenced from the land in Sy. No.64 and ran along Sy. Nos.63 and 51 which terminated at the end of Sy. No.55/1. He further contended that in Sy. No.55/1, a public road measuring 8 feet was in existence where the petitioner had formed site No.3. He also claimed that a pathway running from Sy. No.55 to reach Suvernampet is closed by the petitioner. In so far as the land bearing Sy. No.63 is concerned, he contended that 10 guntas of land was qualified as ‘B’ kharab and a canal ran through the survey number which led to Sy. No.53. He claimed that the water course that ran through the land in the said survey number was destroyed and diverted. He claimed that a suit in O.S. No.10/2020 was filed by the general public against the petitioner and others. The respondent No.2 was also arrayed as a party in the said suit. With this and other contentions, the learned counsel for the respondent No.2 contended that the petitioner is not entitled to release of 40% of the sites that are withheld unless they bring the layout in line with the plan sanctioned by the respondent No.2.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. If the petitioner has completed the layout work in all respects, it is the bounden duty of the respondent No.2 to conduct an inspection to ascertain whether the layout is completed as per the plan. In that view of the matter, the respondent No.2 shall now inspect the layout formed by the petitioner and ascertain whether the same is complete in all respects as per the plan sanctioned by the  respondent  No.2  and  consider  the  request  of  the petitioner as per the representation dated 03.09.2020 (Annexure ‘H’ to the petition). Since the commencement certificate is issued in the year 2011, it is appropriate that the respondent No.2 is directed to expedite the process, lest, the commercial interest of the petitioner would be adversely affected. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. In that view of the matter, this Writ Petition is allowed in part.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p></o:p></p>', '7047f58bbc3a2b48aa0c082421b88038.JPG', '13f5c1a3eac61f4f6f79491f082c12e3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-19', 1, '', '', '2022-07-18 18:46:57', '2022-07-19 06:27:11');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1969, '1x2bCYxRtIdntIZVRGul4i0YL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Dedication of property as religious endowment does not require an express dedication or document, and can be inferred from the circumstances, especially the uninterrupted and long possession of the property by the Temple. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R.M. Sundaram Vs Kayarohanasamy and Neelayadhakshi Amman Temple.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3964- 3965 of 2009 decided on 11 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ajay Rastogi and Justice Sanjiv Khanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The dispute in the present appeals arises from two separate\r\nsuits in relation to</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) the dedication of 26 items of jewellery, some\r\nof which are embedded with diamonds and precious stones, to the\r\ndeity Sri Neelayadhakshi Amman of the Sri Kayarohanasamy and\r\nNeelayadhakshi Amman Temple;\r\n2 and</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) the exclusive possession\r\nof the ‘Kudavarai’ (safe vaults) of the Temple which houses the suit\r\njewellery.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2</span><span style=\"font-size: 12pt;\">. It is the case of the appellant, R.M. Sundaram, that the suit jewellery\r\nwas inherited by him as his personal property being the adopted\r\nson of Muthuthandapani Chettiar and his wife, M. Thangammal. On\r\n6\r\nth November 1985, the appellant had instituted a civil suit (O.S. No.\r\n156/1986) before the court of the District Munsiff of Nagapattinam\r\nseeking, inter alia, a mandatory injunction directing the Temple to\r\ncomply with the undertaking given in the letter dated 4th October\r\n1962 and thereby permit the appellant to “maintain independent\r\nand exclusive possession and enjoyment of the Kudavarai” of the\r\nTemple. It was pleaded that during the lifetime of his father,\r\nMuthuthandapani Chettiar, the suit jewellery known as ‘Abaranam’,\r\nthat was owned and possessed by Muthuthandapani Chettiar, was\r\nlicensed to be kept in the Kudavarai of the Temple. The proprietary\r\nright, title and interest in the suit jewellery continued to vest with\r\nMuthuthandapani Chettiar, who had retained possession and\r\nremained the exclusive owner of the suit jewellery throughout his\r\nlifetime. By way of gratitude, Muthuthandapani Chettiar, in terms of\r\na letter of undertaking dated 4th October 1962, had given the keys\r\nof two external locks of the Kudavarai to the Executive Officer of\r\nthe Temple to temporarily store the Temple jewellery, which is\r\ndifferent from the suit jewellery, in the Kudavarai. This was a\r\ntemporary arrangement, as expressly stated in the undertaking, </span><span style=\"font-size: 12pt;\">and the Temple jewellery would be shifted back to the treasury\r\nroom of the Temple after it was renovated. The plaint also refers to\r\na civil suit filed by the respondent/Temple in the year 1981 (O.S.\r\nNo. 99/1981) before the Subordinate Judge of Nagapattinam, an\r\naspect which we would advert to in some detail later on.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">3. The respondent/Temple contested the suit on several grounds\r\nincluding, inter alia, the appellant’s right to file such a suit, the\r\nmaintainability of the suit filed, the appellant’s status as the adopted\r\nson on Muthuthandapani Chettiar, the appellant’s lack of title over\r\nthe suit jewellery, and the custody over the keys of the Kudavarai\r\nby Muthuthandapani Chettiar being merely an honorary\r\nresponsibility. On merits, it was contended by the Temple that the\r\nsuit jewellery, namely Abaranams, and the Temple jewellery were\r\nacquired from time to time over the past few centuries by way of\r\ndonations or endowments made by unknown donors. The suit\r\njewellery as well as the other Temple jewels have always been in\r\nthe custody, use, enjoyment and possession of the idol/deity, Sri\r\nNeelayadhakshi Amman, only through the functionaries of the\r\nTemple and no other person. The suit jewellery was donated by the\r\nancestors of Muthuthandapani Chettiar absolutely to the idol/deity\r\nand constitutes a specific endowment attached to the Temple. The\r\ndonations have been recorded as Sri Adipoora Amman </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(Neelayadhakshi Amman) Thiruvabaranam Endownment. The suit\r\njewellery is adorned by Sri Neelayadhakshi Amman deity for ten\r\ndays in the month of Adi every year marking the festival of\r\nadolescence and puberty in a celestial and mythological sense. On\r\nthis occasion, many people, particularly women, celebrate the\r\nfestival with great enthusiasm by distributing all sorts of ‘Mangala\r\nSamans’ to all women devotees and worshippers thronging the\r\nTemple. During this festival time, the ‘Utsava’ deity of Sri\r\nNeelayadhakshi Amman (popularly known as Sri Adipoora Amman)\r\nand the deity idol (Sri Neelayadhakshi Amman) used to be/are\r\ndecked and decorated in all glory and grandeur with gold and silver\r\njewellery studded with precious stones from ‘Kireedam to Thiruvadi’\r\nand then taken out in a Temple car and ratham in grand procession\r\naround the four streets on all ten days of the festival. The Kudavarai\r\nis located inside the Temple and is the innermost and integral\r\nportion of the Temple. It is guarded in terms of security and\r\noperated on a system of ‘Multiple Lock and Keys and Joint Control,\r\nOperation and Maintenance’ (MLKJCOM), to ensure safe custody\r\nof jewellery and valuable articles. Therefore, the suit jewellery was\r\nonly used on the occasion of the Adipooram festival and could not\r\nbe taken out of the Kudavarai frequently or at will. While admitting\r\nthat two keys of the external door-way of the Kudavarai as well as </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the keys of the iron safe, wherein the suit jewellery was kept, were\r\nwith the appellant, it is stated that the management of the\r\nrespondent/Temple was in possession of several keys, including\r\nkeys of the external door-way of the Kudavarai. Apart from the\r\nwooden jewellery boxes inside the iron safe, the Kudavarai also\r\nhouses the two steel almirahs wherein the Temple jewellery and\r\nother Thiruvabaranams are kept. These articles and the suit\r\njewellery do not belong to any person or private individual and\r\nwere/are for the use of the deity.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. With reference to the letter of undertaking dated 4th October 1962,\r\nit is stated that the undertaking is a dead letter as it creates no right\r\nor privilege in favour of the appellant and in any event,\r\nMuthuthandapani Chettiar and his wife, M. Thangammal, had\r\nneither sought to enforce this letter-undertaking nor sought return\r\nof the two keys during their lifetime. The appellant had, nearly 23\r\nyears thereafter, raised a claim in respect of the suit jewellery.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. The suit filed by the appellant was dismissed by the trial court, vide\r\njudgment dated 26th November 1990, primarily on the ground that\r\nthe suit was not maintainable and that the undertaking was not\r\nacted upon by the appellant’s adoptive father, Muthuthandapani\r\nChettiar. The respondent/Temple being a religious institution under <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Tamil Nadu Hindu Religious and Charitable Endowments Act,\r\n1959,\r\n3\r\nthe Government can frame rules regarding the custody of\r\njewels, other valuables and documents of religious institutions\r\nunder Section 116(2)(xii) of the 1959 Act, which would also apply\r\nto the suit jewellery in the Kudavarai. The appellant, instead of\r\napplying to the Commissioner, had filed the civil suit which was not\r\nmaintainable under Section 108 of the 1959 Act. The claim for\r\npossession of Kudavarai was also barred as it interfered with the\r\ninternal administration of the Temple.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. In relation to the undertaking dated 4th October 1962, the trial court\r\nobserved that it was never acted upon by Muthuthandapani Chettiar\r\nprior to his death in 1969 and that the relief sought by the appellant\r\nwas barred by limitation as it was instituted beyond the period of\r\nthree years as stipulated in Article 113 of the Limitation Act, 1963<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The impugned common judgment, however, allowed the second\r\nappeal (S.A. No. 829/2000) preferred by the respondent/Temple\r\nwhich had arisen from a separate independent suit (O.S. No.\r\n87/1990, renumbered as O.S. No. 56/1996) instituted by the\r\nTemple on 11th June 1990 before the Subordinate Judge of\r\nNagapattinam seeking, inter alia, a declaration of existence of\r\nspecific endowment in respect of the suit jewellery in favour of the\r\ndeity, Sri Neelayadhakshi Amman, and for a decree of permanent\r\ninjunction restraining the appellant from interfering with the right of\r\nthe deity to take out the suit jewellery from the Kudavarai.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. It is clear from the aforesaid discussion that, as far as endowment\r\nof the suit jewellery is concerned, there are concurrent findings of\r\nfact by the three courts in favour of the respondent/Temple and\r\nagainst the appellant. As per the said findings, the suit jewellery, 26\r\nin number, had been gifted by the ancestors of Muthuthandapani\r\nChettiar for the specific purpose of adorning the deity, Sri\r\nNeelayadhakshi Amman, during the Adipooram festival. No doubt,\r\nthe keys of the Kudavarai were in the custody of Muthuthandapani\r\nChettiar and thereafter, his widow, M. Thangammal. However, this\r\nwas more out of deference and honour, as the ancestors of\r\nMuthuthandapani Chettiar had donated the jewellery, and not on\r\naccount of personal ownership of Muthuthandapani Chettiar or his\r\nancestors. The administration of the Temple was originally vested\r\nwith Nagai District Devasthanam Committee. Pursuant to Order No.\r\nG.O. 135 dated 16th January 1942, a revised scheme of Hindu\r\nReligious and Charitable Endowment was implemented and the\r\nrespondent/Temple came under direct administration of the Hindu <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Religious and Charitable Endowments under the Madras Hindu\r\nReligious Endowments Act, 1926 enforced with effect from 19th\r\nJanuary 1927. Subsequently, on enforcement of the 1959 Act, the\r\nmanagement was taken over by the Executive Officer and Trustees\r\nappointed under the 1959 Act. It is to be noted that two important\r\nfestivals are celebrated at the Temple, namely Adipooram and\r\nPanchakrosam. Adipooram is a unique festival spread over ten\r\ndays celebrating the coming of age of the goddess. On the tenth\r\nday, after sacred bath, the idol of goddess Sri Neelayadhakshi\r\nAmman is taken in procession in a Temple car. During the\r\nAdipooram festival, the goddess Sri Neelayadhakshi Amman is\r\nadorned with the suit jewellery. The High Court rereferred to the\r\nevidence on record, including testimony of the witnesses, who, it is\r\nobvious, could not have deposed as to the donation of the ‘suit\r\njewellery’ which had taken place in or before 1894, but what was\r\nseen and noticed by the witnesses during their lifetime. PW-3,\r\nAbadhthothranam Chettiar5\r\n, the son of an erstwhile trustee of the\r\nTemple, had testified that the ancestors of Muthuthandapani\r\nChettiar gave the suit jewellery to the Temple which was used\r\nduring the ten days of the Adipooram festival to adorn the idol/deity,\r\nSri Neelayadhakshi Amman, and could not be used by members of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the family of Muthuthandapani Chettiar. The jewellery was never\r\ntaken out of the Temple and Muthuthandapani Chettiar had the\r\nhonour of taking and giving out the suit jewellery at the Adipooram\r\nfestival. Members of the family of Muthuthandapani Chettiar had\r\nnever claimed rights over the suit jewellery. PW-4, Sundarajan 6\r\n,\r\nanother erstwhile trustee of the Temple during the period 1972-\r\n1977, had similarly deposed that the jewellery was only adorned by\r\nthe idol/ deity, Sri Neelayadhakshi Amman, and neither\r\nMuthuthandapani Chettiar nor the members of his family claimed\r\nany right over the suit jewellery. There was no custom to take the\r\nsuit jewellery by the family of Muthuthandapani Chettiar outside the\r\nTemple. PW-5, Kalimuthu7\r\n, who had been closely associated with\r\nMuthuthandapani Chettiar, had affirmatively stated that the suit\r\njewellery was gifted by ancestors of Muthuthandapani Chettiar to\r\nbe adorned by the idol/ deity during the Adipooram festival. On this\r\nfestive occasion, Muthuthandapani Chettiar would be happy to\r\nopen the Kudavarai and take out the suit jewellery for being\r\nadorned by the deity. In doing so, Muthuthandapani Chettiar would\r\nfollow the practice of his ancestors and had never claimed any right\r\nover the suit jewellery</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. This decision has referred to an earlier decision in M.J.\r\nThulasiraman and Another v. Commissioner, Hindu Religious\r\nand Charitable Endowment Administration and Another, which had examined and elucidated on the words ‘endow’ and\r\n‘endowment’ to state that they relate to idea of giving, bequeathing\r\nor dedicating something, whether property or otherwise, for some\r\npurpose. The purpose should be with respect to religion or charity.\r\nIn our opinion, the said tests are satisfied in the present case and\r\nthe specific endowment of the suit jewellery as religious charity is\r\nestablished beyond doubt.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. Therefore, in view of the judgments quoted above and the aforesaid\r\nstatutory provisions, it must be held that the case of the appellant\r\nthat there was no endowment or specific endowment must fail and\r\nhas no legs to stand on. The dedication of the suit jewellery does\r\nnot require an express dedication or document, and can be inferred\r\nfrom the circumstances, especially the uninterrupted and long\r\npossession of the suit jewellery by the respondent/Temple. The\r\nprivate character of the jewels had extinguished long back and the\r\nappellant has no basis to claim that the suit jewellery was inherited\r\nby him from his adoptive parents. The endowment is clearly public\r\nin nature and for the purposes of performing religious ceremonies.\r\nAs confirmed by three courts, with which we are in agreement, the\r\nsuit jewellery was dedicated for a specific purpose and can only be\r\nused during the performance of the religious ceremony during the\r\nAdipooram festival.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. General principle of res judicata under Section 11 of the Code\r\ncontains rules of conclusiveness of judgment, but for res judicata to\r\napply, the matter directly and substantially in issue in the\r\nsubsequent suit must be the same matter which was directly and\r\nsubstantially in issue in the former suit. Further, the suit should have\r\nbeen decided on merits and the decision should have attained\r\nfinality. Where the former suit is dismissed by the trial court for want\r\nof jurisdiction, or for default of the plaintiff’s appearance, or on the\r\nground of non-joinder or mis-joinder of parties or multifariousness,\r\nor on the ground that the suit was badly framed, or on the ground\r\nof a technical mistake, or for failure on the part of the plaintiff to\r\nproduce probate or letter of administration or succession certificate\r\nwhen the same is required by law to entitle the plaintiff to a decree,\r\nor for failure to furnish security for costs, or on the ground of\r\nimproper valuation, or for failure to pay additional court fee on a\r\nplaint which was undervalued, or for want of cause of action, or on\r\nthe ground that it is premature and the dismissal is confirmed in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appeal (if any), the decision, not being on the merits, would not be\r\nres judicata in a subsequent suit.16 The reason is that the first suit is\r\nnot decided on merits.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">32. In the present case, the suit filed in 1981 for appointment of the\r\nreceiver for preparing an inventory of the suit jewellery was not\r\ndecided on merits but was dismissed on the ground that the\r\nrespondent had prayed for mandatory injunction and had not made\r\na prayer for declaration of title. Thus, the suit was dismissed for\r\ntechnical reasons, which decision is not an adjudication on merits\r\nof the dispute that would operate as res judicata on the merits of\r\nthe matter. Further, to succeed and establish a prayer for res\r\njudicata, the party taking the said prayer must place on record a\r\ncopy of the pleadings and the judgments passed, including the\r\nappellate judgment which has attained finality. In the present case,\r\nthe appellant did not place on record a copy of the appellate\r\njudgment and it is accepted that the second appeal filed by the\r\nrespondent was dismissed, giving liberty to the respondent to file a\r\nfresh suit with a prayer of declaration of title/endowment in respect\r\nof the suit jewellery. The liberty granted was not challenged by the\r\nappellant. The right to file a fresh suit to the Temple, therefore,</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">should not be denied. The bar of constructive res judicata/ Order II\r\nRule 2 of the Code is not attracted.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>37. In fact, to be fair to the High Court, the impugned judgment also\r\nrecords that the decree for permanent injunction as prayed for is\r\ngranted to the respondent/Temple. Accordingly, we clarify and pass <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">a decree restraining the appellant from interfering in any manner\r\nwith the right of the Temple authorities to take out the suit jewellery\r\nfrom the Kudavarai whenever the occasion demands. In other\r\nwords, the appellant would cooperate with the request(s) made by\r\nthe Executive Officer and Trustees of the respondent/Temple to\r\nopen the Kudavarai doors and take out the suit jewellery from the\r\niron-safe whenever required.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">38. Accordingly, the final order and directions issued by the trial court\r\nin its decision dated 17th October 1996 in the respondent’s suit\r\n(Original Suit No.56/96) and the first appellate court rejecting the\r\nTemple’s prayer for injunction is set aside, and a decree of\r\ninjunction is passed in the aforesaid terms. The respondent/Temple\r\nwould be entitled to file an application for execution of the decree\r\nof injunction in case of non-compliance and violation of the decree.\r\nFurther, and in case the appellant fails to honour the commitment\r\nmade and followed, that is, to open the doors of the Kudavarai and\r\nthe safe to take out the suit jewellery whenever required by the\r\nTemple, it will be open to the respondent to take steps and initiate\r\nproceedings under the 1959 Act or by way of a civil suit as permitted\r\nin law, in which event the authorities/court would consider passing\r\nan order directing the appellant to hand over the keys of the door of\r\nthe Kudavarai and the iron safe; As any failure to abide by the</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">convention and ‘the charge’, which forms the basis of this order,\r\nwould be a fresh or recurring cause of action, and the plea of\r\nlimitation or Order II Rule 2 of the Code would not apply.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>39. It is to be noted in the impugned judgment that one of the items in\r\nthe suit jewellery (item no. 14) is missing, and a review of the\r\nevidence on record reflects that it is with the appellant. The\r\nappellant must surrender and give physical possession of the said\r\nitem to the respondent/ Temple within 30 days from the date of\r\npronouncement of this judgment. In case, the appellant does not\r\ngive possession of the said item, it would be open for the\r\nrespondent/ Temple to initiate civil as well as criminal proceedings\r\nin accordance with law. In case any such proceeding is initiated,\r\nthe same would be examined on merits, though the findings\r\nrecorded herein would be binding. The appellant would have the\r\nright to raise all defences as are available with him under law.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">40. Accordingly, we dismiss the appeals and uphold the judgment of\r\nthe High Court affirming the decree of declaration passed by trial\r\ncourt in Suit No. 56/96, which was also upheld by the first appellate\r\ncourt, and thereby confirm existence of specific endowment known\r\nas Adipooram Thiruvabaranam comprising of the 26 items of\r\njewellery mentioned in the plaint, as endowed in favour of Sri </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Neelayadhakshi Amman, the presiding deity of the Temple. The\r\ndecree of injunction as passed by the High Court, it is clarified, is in\r\nthe terms of the prayer made in the suit (OS No.56/96) and also is\r\nin terms of this judgment. There would be no order as to costs</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ea81ee8023c93e06969c4903c4f9a2ea.jpg', '0aaad89b7cc47e96d14746e9e74c1caf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-20', 1, '', '', '2022-07-19 18:54:11', '2022-07-20 08:29:19'),
(1970, '7FpeSPnUC4jEZsJxh6iilEtym', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Manager of a joint Mitakshara family is under a legal obligation to maintain all male members of the family, their wives and their children, and on death of one of the male members he is bound to maintain his widow and his children.Chhattisgarh High Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nand Kishore Lal Vs Shrimati Chanchala Lal.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>FAM 200 of 2015 decided on 4 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Goutam Bhaduri and Justice Deepak Kumar Tiwari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts, in brief, are that the respondent was married to the son of\r\nthe appellant namely;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ashwani Kumar Lal on 11-7-2008. The\r\n2\r\nFAM No.200 o<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">husband of the respondent died on 21-6-2012. According to the\r\nrespondent, after the death of her husband there was a considerable\r\nchange in the behaviour of in-laws towards her and she was almost\r\ndeserted in the family. Having reported the facts to her father, she\r\nwas taken to her parental home. The respondent further pleaded\r\nthat the bank passbook and ATM card, which belong to her husband\r\nwere kept by the in-laws. The respondent also pleaded that at\r\nvillage Haretikala, Tahsil Jaijaipur ancestral property of 11.78 acres\r\nand at village Jaijaipur 3.97 acres of agricultural land are held by\r\nthe appellant. In addition, three shops and house situated at\r\ndifferent places of Korba wherein right of late husband of the\r\nrespondent is also vested. According to the respondent, she has no\r\nsource of income to maintain herself, as such, an amount of\r\nRs.7,000/- per month was claimed towards maintenance.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3. In reply to the averments made by the respondent, the appellant\r\ncontended that the respondent herself left the matrimonial home and\r\nshe was never deserted by his family members. He further contends\r\nthat in order to treat the ailment of his son (husband of the\r\nrespondent), considerable amount was spent, as such, the appellant\r\ndoes not have any source of income and, therefore, he is unable to\r\npay the maintenance.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Mr. Sanjay Patel, learned counsel appearing for the appellant,\r\nwould submit that in order to get the maintenance from the fatherin-law, the daughter-in-law is required to plead and prove that she\r\ndoes not have any source of income and she is unable to get the\r\nmaintenance from the estate of her husband. According to him,\r\nthese facts have not been proved by the respondent by placing\r\nreliable and cogent evidence. He would further submit that the\r\ndocument filed under Order 41 Rule 27 of the Code of Civil\r\nProcedure (henceforth ‘the CPC’) before this Court would show\r\nthat certain lands have already been recorded in the name of\r\ndaughter-in-law, therefore, she can earn her livelihood from such\r\nproperties and consequently the father-in-law cannot be forced to\r\npay the maintenance. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Mr. Sourabh Sahu, learned counsel for the respondent, per contra,\r\nwould submit that the respondent has pleaded that she is unable to\r\nmaintain herself and the property, which was held by the appellant\r\nas a Manager, is a coparcenary property, wherein the right of the\r\ndeceased husband of the respondent was vested. He would further\r\nsubmit that since the amount of maintenance was not paid from the\r\nestate of her husband as such the respondent (daughter-in-law) was\r\nentitled to get maintenance from the appellant (father-in-law).<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. In the application filed by the respondent, it has been pleaded that\r\nafter the death of her husband on account of ill treatment of her inlaws she left the matrimonial home. She stated that the bank\r\npassbook and ATM of her deceased husband were also kept by inlaws and therefore, she was forced to be rescued by her father at her parental home at village Birra. With respect to property, specific\r\npleading is made that at village Haretikala, Tahsil Jaijaipur\r\nancestral property of 11.78 acres and at village Jaijaipur 3.97 acres\r\nof agricultural land are held by the appellant. In addition, three\r\nshops and house situated at different places of Korba are in\r\npossession of the appellant. She also pleaded that she has no\r\nsource of income to maintain herself and her father is also a poor\r\nperson as such he is unable to maintain her. The respondent\r\npleaded that neither she received any property from the estate of her\r\nhusband nor from her father or mother. The entire property is in\r\npossession of the father-in-law, therefore, she, being not re-married,\r\nis entitled for maintenance.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. With regard to allegation of misbehaviour, it was vehemently\r\ndenied by the appellant and stated that the father of the respondent\r\nis a rich person and he is running a crusher, therefore, he can\r\nmaintain the respondent. Thus, the in-laws would not be liable to\r\npay maintenance to the daughter-in-law. Except these facts no\r\nspecific denial was made.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Before this Court an application under Order 41 Rule 27 of the CPC\r\nwas filed to show that the respondent is in possession of certain\r\nlands. Specific query when was made by the Court as to whether\r\nthese properties are joint property, it was stated by the appellant that\r\nin respect of the property a partition suit was filed and after the\r\ndecree mutation has been made in the revenue records. Learned counsel would submit that the said partition decree is subject of\r\nappeal, which is pending consideration before this Court. When\r\nspecific query was made as to whether the respondent is in\r\npossession of the said property no plausible answer was given on\r\nthe ground that certain litigation are pending, which may have\r\neffect on that. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. This Court in Parwati (supra) has considered the scheme of\r\nmaintenance to be granted to the daughter-in-law wherein it was\r\nheld that the daughter-in-law is required to specifically plead and\r\nprove by leading cogent, reliable and clinching evidence that all\r\nother sources of income as stated in sub-section (1) of Section 19\r\nare not available to her, then only the subsequent provisions of subsection (2) of Section 19 can be pressed into.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. This necessarily leads us to go back to sub-section (1) of Section 19\r\nof the Act, 1956. It purport that a Hindu wife shall be entitled to be\r\nmaintained after the death of her husband by her father-in-law if she\r\nis unable to maintain herself out of her own earnings or other\r\nproperty or, where she has no property of her own, is unable to\r\nobtain maintenance;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(a) from the estate of her husband or her father\r\nor mother, or</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(b) from her son or daughter, if any, or his or her\r\nestate.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. The respondent examined herself as PW-1 wherein she deposed that\r\nbecause of ill treatment meted out to her by the family members of\r\nher in-laws she is constrained to stay at her parental home. In\r\nrespect of holding of immovable properties, the respondent further\r\nadduced evidence that at village Haretikala, Tahsil Jaijaipur\r\nancestral property of 11.78 acres and at village Jaijaipur 3.97 acres\r\nof agricultural land are available with superstructure. She also\r\ndeposed that House No.MIG-40 situated at Korba is a two storied\r\nbuilding and the ground floor has been rented out and another house\r\nis at Jaminipal, which is also rented out. Shop situated at\r\nGhantaghar, Korba, has also been given on rent. In her crossexamination, nothing has been rebutted. Instead suggestion was\r\ngiven that on account of medical treatment of her husband hefty\r\namount was spent as such she is not entitled to get the estate of her\r\nhusband. The revenue record (Ex.P/1, P/2 & P/3) is placed before\r\nthis Court to show that the mutation has presumptive value of\r\ncorrectness unless rebutted, which would show that the lands are\r\nrecorded in the name of Nand Kishore, S/o Pyarelal. The statement\r\nof plaintiff is unrebutted that it was an ancestral property.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. As per the provisions enumerated under Section 19 of the Act, 1956\r\nthe widowed daughter-in-law can claim maintenance only if she is\r\nunable to maintain herself out of her own earnings or out of estate <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of her husband or her father or mother, or from her son or daughter,\r\nif any, or his or her estate. The right to claim maintenance by\r\nwidowed daughter-in-law is conditional. The father-in-law having\r\nin possession of coparcenary property out of which widowed\r\ndaughter-in-law has not obtained any share, therefore, the right to\r\nreceive maintenance from the father-in-law would be limited to the\r\nshare of coparcenary property held by the father-in-law in his hand\r\nin which the widowed daughter-in-law has not taken any share.\r\nThe preferential right when is considered under sub-section (1) (a)\r\nof Section 19 would show that the widowed daughter-in-law would\r\nbe entitled to claim maintenance firstly from the estate of her\r\nhusband and thereafter claim can be made from her father or\r\nmother. Though the word in Section ‘or’ is used, which gives the\r\nright to a widow to claim from either of the people enumerated in\r\nSection, yet the Section is sub divided into part (a) & (b). So the\r\npreferential precedents exists giving an option to widow. Thus, it\r\nis crystal clear that the estate of husband comes first to claim\r\nmaintenance by widow.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>20. It is the well settled proposition of law that the manager of a joint\r\nMitakshara family is under a legal obligation to maintain all male\r\nmembers of the family, their wives and their children, and on the\r\ndeath of one of the male members he is bound to maintain his\r\nwidow and his children.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. In view of the above stated facts and circumstances, when the estate\r\nof the husband is held in the hands of the father-in-law, the\r\ndaughter-in-law cannot be forced to leave the estate of her husband\r\nand to follow the estate of her father or mother. Thus, we are of the\r\nconsidered view that the estate of husband can be preferred to claim\r\nover the father or mother of the daughter-in-law. Consequently, we\r\nhold that the daughter-in-law (respondent herein) would be entitled\r\nto claim maintenance from the father-in-law. Thus, the impugned\r\norder is just and proper and there is no illegality or infirmity.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n22. Section 23 (2) of the Act, 1956 prescribes power of the adjudicator\r\nfor fixation of maintenance. Considering the benevolent object of\r\nthe Act, which is meant for removal of disabilities of Hindu women\r\nand also considering the evidence of the respondent that the\r\nappellant has a considerable income apart from the properties, as\r\nthe properties have been diverted to two sons excluding the\r\ndeceased husband of the respondent, we deem it appropriate to\r\nenhance the maintenance amount from Rs.2,500/- to Rs.4,000/- per\r\nmonth taking into the consolidated share in the property and\r\nestimated proposed income. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. Accordingly, the appellant is directed to pay Rs.4,000/- per month\r\nin favour of the respondent from the date of this judgment.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. In the result, the appeal is dismissed with the aforesaid observations\r\nand directions, leaving the parties to bear their own cost(s).\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. A decree be drawn accordingly.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '271d220b135cbe2fe02fc887e96cbcf3.jpg', '64a23caa45f9ff0281dad378dfa12479.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-20', 1, '', '', '2022-07-19 20:08:27', '2022-07-20 12:26:05');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1971, 'PL9bFAGFAzMReUPs55bWjrPDy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Ailment/disability of a soldier not noted at the recruitment time but detected/diagnosed later would not automatically entitle him to disability pension on the presumption that the disability was attributable to military service. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Union of India and others Vs Ex. Sep.R. Munusamy.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6536 of 2021 decided on 19 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Indira Banerjee and Justice V. Ramasubramanian.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This appeal is against a judgment and order dated 18th February\r\n2020 passed by the Chennai Regional Bench of the Armed Forces\r\nTribunal allowing the application being O.A. No. 53 of 2018 filed by\r\nthe Respondent about 20 years after he was discharged from the\r\nIndian Army, and holding that the Respondent was entitled to\r\ndisability pension. The arrears were restricted to a period of three\r\nyears prior to the date of application before the Tribunal.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The Respondent was enrolled in the Army on 26th March 1987.\r\nBy an order dated 5th April 1997, the Respondent was discharged from\r\nservice on administrative grounds, as an undesirable Soldier under\r\nRule 13(3) III(v) of the Army Rules, 1954. The Respondent had <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">rendered service for nine years seven months and one day excluding\r\n161 days of non-qualifying service. Annexed to the appeal is a copy\r\nof the Order/Certificate of the Commandant dated 12th October 1996\r\nregarding the proposal to discharge the Respondent. As per the\r\ncertificate of the Commandant, service of the Respondent was no\r\nlonger required. The cause of discharge was shown in paragraph 20\r\nas “Undesirable Soldier under Rule 13 III(V) of Army Rules, 1954”.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3. At the time of discharge, the Respondent was in low medical\r\ncategory. A meeting of the Release Medical Board held on 30th\r\nJanuary 1997 found “Right Partial Seizure with Secondary\r\nGeneralization 345” neither attributable to nor aggravated (NANA) by\r\nmilitary service. The disability was assessed @ 20% for two years.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. For over 20 years from the date of the discharge, the\r\nRespondent did not challenge his discharge on the administrative\r\nground of being an undesirable soldier. His discharge on\r\nadministrative grounds could not have been challenged after two\r\ndecades.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. In the considered opinion of this Court, the Tribunal fell in error\r\nin passing its order dated 2nd November 2018 directing the Appellants\r\nto convene a Resurvey/Review Medical Board at the Military Hospital,\r\nChennai or a designated hospital for the purpose of examining the\r\napplicant and assessing the degree of disability due to “Right Partial\r\nSeizure with Secondary Generalisation 345” and the probable\r\nduration of disability. The tenor of the order itself shows that even\r\nthe Tribunal realized that accurate medical opinion could not have <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">been obtained after lapse of 30 years from the date of recruitment of\r\nthe Respondent and after 20 years from the date of his discharge.\r\nThe Tribunal, therefore, sought assessment of ‘probable duration of\r\ndisability’.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. The Tribunal relied on the judgment of this Court dated 13th\r\nFebruary 2015 in Civil Appeal No.2904 of 2011 (Union of India v.\r\nRajbir Singh\r\n1\r\n) heard and disposed of along with 23 other appeals.\r\nIn the aforesaid case, this Court dismissed appeals arising out of\r\norders passed by the Armed Forces Tribunal and upheld directions for\r\ngrant of disability pension to the concerned ex-soldiers.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. In Rajbir Singh (supra), it was not in dispute that the\r\nRespondents in all the appeals had been invalidated out of service on\r\naccount of medical disability as shown in the chart set out in the\r\njudgment. The judgment in Rajbir Singh (supra) was rendered in\r\nthe context of invalidation from service on medical grounds, having\r\nregard to the provisions of the Entitlement Rules for Casualty\r\nPensionary Awards, 1982, hereinafter referred to as “the Entitlement\r\nRules”. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. In the instant case, as observed above, the discharge of the\r\nRespondent was not on account of any disability or disease but on\r\nadministrative grounds and such discharge was not questioned for\r\ntwo decades. The judgment in Rajbir Singh (supra) or the judgments\r\nrelied upon in Rajbir Singh (supra) have no application in the facts\r\nand circumstances of this case. The learned Tribunal noted red ink\r\nentries in the service records of the Respondent on the ground of\r\nunauthorized absence, but arrived at the purported finding in effect\r\nthat the absence of the Respondent was only on account of his\r\nailment/disability. Such finding is patently conjectural, and not based\r\non any materials on record.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. Moreover, even in the case of discharge on account of any\r\ndisability or disease, the authorities might dispute that such disability\r\nor disease was caused or aggravated by military service. The Medical\r\nBoard might, for reasons to be stated, give an opinion that the disease\r\ncould not have been detected on medical examination prior to\r\nappointment, in which case the disease/disability would not be\r\ndeemed to have arisen during service. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. Even though, the Tribunal accepted that there might be cases,\r\nwhere an ailment/disease could be wholly unrelated to military\r\nservice and the denial of disability pension could be justified on that\r\nground, the Tribunal overlooked the mandate of Rule 14(c) of the\r\nEntitlement Rules. From the Report of the Resurvey Medical Board, as\r\nextracted in the impugned judgment and order, it does not appear\r\nthat the Review Medical Board gave any opinion as contemplated in\r\nRule 14(b) or 14(c) of the Entitlement Rules. There were no materials\r\nbefore the Tribunal, on the basis of which the Tribunal could have\r\nbeen satisfied that, the conditions of service of the Respondent\r\ncontributed to his disability and/or ailment. The Review Medical\r\nBoard only assessed the extent of the disability of the Respondent\r\nand the approximate duration of the disability, but not the cause\r\nthereof.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. What exactly is the reason for a disability or ailment may not be\r\npossible for anyone to establish. Many ailments may not be\r\ndetectable at the time of medical check-up, particularly where\r\nsymptoms occur at intervals. Reliance would necessarily have to be\r\nplaced on expert medical opinion based on an in depth study of the\r\ncause and nature of an ailment/disability including the symptoms\r\nthereof, the conditions of service to which the soldier was exposed <span style=\"font-size: 12pt;\">and the connection between the cause/aggravation of the\r\nailment/disability and the conditions and/or requirements of service.\r\nThe Tribunal patently erred in law in proceeding on the basis of a\r\nmisconceived notion that any ailment or disability of a soldier, not\r\nnoted at the time of recruitment but detected or diagnosed at the\r\ntime of his discharge or earlier, would entitle the soldier to disability\r\npension on the presumption that the disability was attributable to\r\nmilitary service, whether or not the disability led to his discharge, and\r\nthe onus was on the employer to prove otherwise, which the\r\nAppellants in this case had failed to do.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">26. In this case, since the discharge was on administrative grounds\r\nand not medical grounds, there was no occasion for the Release\r\nMedical Board or for that matter, the Resurvey Medical Board to give\r\nany opinion as to cause and nature of the ailment of the Respondent\r\nof “Right Partial Seizure with Secondary Generalisation 345” as\r\ndiagnosed, whether such disability/ailment could reasonably have\r\ngone undetected at the time of appointment of the Respondent, in\r\nterms of Rule 14(b) of the Entitlement Rules. The Appellants did not\r\nget the opportunity to show that the ailment was not caused or\r\naggravated by military service in terms of Rule 14(b) and 14(c) of the\r\nEntitlement Rules referred to above. The claim of the Respondent for\r\ndisability pension should not have been entertained and that too, 20\r\nyears after his discharge.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. The appeal is, therefore, allowed. The impugned judgment and\r\norder is set aside. There shall be no order as to costs.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'dc53904c3956fa2055af709166e0fe38.jpg', '658a06a5b9f730bc68420a730d767ca4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-20', 1, '', '', '2022-07-20 00:37:58', '2022-07-20 06:27:07'),
(1972, 'ILh8GtkO4hA7IEoFpjKnVRvuI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'In a suit for partition, defendant can seek direction to plaintiff to include certain properties in the plaint schedule and seek partition of the same. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>S Shivakumar Vs Shiva Shankar S.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 12177 of 2022 decided on 1 July 2022<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sachin Shankar Magadum.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2. Respondent No.1/plaintiff has instituted a suit for partition and separate possession in O.S.No.9190/2014. The present petitioner, on receipt of summons, has tendered appearance and contested the suit by filing written statement. In the written statement, more particularly at paragraph Nos.17 and 18, petitioner has taken the specific defence that the properties standing in the name of the plaintiff are also joint family ancestral properties and therefore, the present petitioner has claimed share in the said properties also.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Respondent No.1/plaintiff, however, contested this application by contending that he was employed in Singapore and he is a permanent resident of Singapore, therefore, the entire sale consideration was paid by Respondent No.1/plaintiff. Respondent No.1/plaintiff  contended  that  though  the  properties were purchased in parents name, the entire sale consideration was paid by the plaintiff and therefore he claims that these properties are his self acquired properties and are not purchased with the aid of joint family corpus.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 5. The learned Trial Judge has rejected the application. While rejecting the application, the learned Trial Judge was of the view that plaintiff being a dominant litigant, he is entitled to prosecute the suit by seeking appropriate relief. Therefore, the present petitioner cannot insist to include the particular properties and such a direction cannot be issued. This finding is palpably erroneous and contrary to settled proposition of law. The present petitioner has taken the specific defence that the properties standing in the name of plaintiff are also joint family ancestral properties. Respondent No.1/plaintiff cannot proceed with the suit without including those properties. However, it is always open for plaintiff to contend and prove that these properties are self acquired properties of plaintiff and therefore, they are not available for partition. These disputed question of facts needs adjudication and have to be tested during the full-fledged trial.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 6. In the light of rival claims made in the written statement and also in view of specific stand taken in the application and objection to the application, relevant issue would also arise for consideration. Therefore, the Court is also bound to frame appropriate issues insofar as these properties are concerned. It is in this background, this Court is of the view that the finding recorded by the learned Trial Judge that it is a plaintiff who is a dominant litigant and he cannot be dictated to include additional properties is palpably erroneous. In a partition suit, even though family  members  are  arrayed  as defendants, strictly speaking they cannot be termed as defendants. More particularly, when a relief of partition is sought in the written statement, every party to a partition suit has to be deemed to be a plaintiff.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '61d53ba7e0edb01c7f9854d012cd999d.JPG', '528c6a55602e29804e1fdd1953d84b49.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-20', 1, '', '', '2022-07-20 00:48:00', '2022-07-20 13:54:21'),
(1973, 'o6j5vxZbba8KO7DFrRIhrAYGe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Owner/driver of private vehicle from which ganja was seized cannot plead absence of \'\'conscious possession\'\' since the standard of ‘conscious possession’ is different in case of private vehicle with few persons known to one another. Karnataka High Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Zakir Hussain Vs State.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Criminal Petition 2612 of 2022 decided on 15 July 2022.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Justice Mohammad Nawaz.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>This is a successive bail petition filed by accused No.2 praying to enlarge him on bail in relation to a case registered by respondent/NCB in NCB F.No.48/1/5/2021/ BZU for offences punishable under Sections 8(c) read with Section 20(b)(ii)(C), 23, 27(A), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [hereinafter referred to as ‘NDPS Act’ for short].</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. The learned senior counsel contends that the alleged ganja was concealed underneath the coconut bags and therefore it cannot be said that the petitioner was in conscious possession of ganja. He contends that the petitioner was only the owner-cum-driver of the truck which was transporting the load of coconuts and he was not aware that there was ganja in the truck. He contends that there is non-compliance of Section 42 of the NDPS Act, as the secret information said to be received by the complainant was not reduced into writing and reported to his superior officer. He further contends that no quantitative analysis of the seized material has been carried out and in the absence of quantitative analysis, prosecution must fail. He contends that the search and seizure has been carried out during night hours on a private vehicle, which is in violation of the mandatory provisions of Sections 42 and 43 of the NDPS Act. He has also contended that the samples were drawn on 12.04.2021 and the FSL report was received on 11.06.2021, which is not within 15 days and it is in violation of Standing Instructions 1/88, hence on this ground also the petitioner is entitled for bail. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. The learned senior counsel has also contended that no analysis by separation of the seeds, stems, buds and flowers etc, has been carried out and therefore it cannot be said that the quantity of the ganja seized is commercial quantity. It is further contended that the prosecution has nowhere alleged that the petitioner was engaged in financing illicit traffic or harbouring the offenders, hence Section 27A of the NDPS Act also does not attract. He therefore submits that there are reasonable grounds for believing that the petitioner is not guilty of the alleged offences and therefore seeks to allow the petition and release the petitioner on bail.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. The learned senior counsel has relied on a decision of the Hon’ble Apex Court in Abdul Rashid Ibrahim Mansuri vs. State of Gujarat reported in (2000)2 SCC 513 to contend that it is imperative on the Officer who receives a credible information that any narcotic drug or psychotropic substance has been concealed in any building, conveyance or enclosed place, to take it down in writing and he shall forthwith send a copy thereof to his immediate official superior. He contends that the action of the officer, who claims to have exercised it on the strength of such unrecorded information, would become suspect.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. The material on record would disclose that an information report under Section 42 of the NDPS Act was prepared on receiving the secret information and it was sent to the Assistant Director, NCB. The Assistant Director, NCB has authorized to search under sub-Section (2) of Section 41 of the NDPS Act. Further, sample of the suspected material was collected from the gunny bag and it was tested with the field drug detection kit, which gave positive result for ganja. The contraband was seized which weighed 93.8 kgs. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12. The material on record would further disclose that the prosecution sought permission from the Court to draw samples under Section 52A of the NDPS Act, so that the seized narcotic drugs could be thereafter be disposed of as per sub-Section (1) of Section 52A of the Act, after retaining the certificate, photographs and samples and also to forward the original sample to the Government laboratory for chemical analysis. The samples were drawn accordingly with certification by the learned Magistrate under Section 52A(3) of the NDPS Act, who certified that the inventory is as per the seizure documents etc, and thus certifying the correctness of the inventory. After the samples were sent for chemical analysis, a test report was received confirming the contraband as ganja.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15. The Hon’ble Apex Court in the case of Union of India vs. Bal Mukund and others reported in (2009)12 SCC 161 which was relied on by this Court in the above referred Judgment has not held that infraction of Standing Instruction No.1/88 is a ground for releasing the accused on bail. In the case on hand, there is a report of the FSL confirming that the contraband is ganja. Hence, merely because the report is not received within 15 days is not a ground to release the accused on bail. There is no inordinate delay in receiving the FSL Report.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20. Under Section 35 of the NDPS Act, in any prosecution for an offence under the Act, which requires a culpable mental state of the accused, the Court shall presume the existence of such a mental state but, it shall be a defence of the accused to prove the fact that he had no such mental state with respect to the act charged as an offence. In the case on hand, at this stage, this Court finds that the petitioner had real knowledge of the nature of the substance concealed in the jute gunny bags.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>22... In so far as quantity of ganja seized, this Court has already considered in the earlier petition that the same is much more than the commercial quantity. Further, the accused has been found transporting ganja in his vehicle and at this stage, the material collected is sufficient to show that he had real knowledge of the nature of substance concealed in the jute gunny bags beneath the load of coconuts. Hence, taking into consideration all the above, this Court is of the considered view that, a prima facie case is made out against the petitioner and it cannot be said at this stage that there are reasonable grounds for believing that the petitioner is not guilty of the offence alleged against him.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> Criminal Petition is dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p></o:p></p>', 'c47854927353e804d6df1f2af06f4c26.JPG', '88b2d11ee66279f51395280effb08d51.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-21', 1, '', '', '2022-07-20 16:49:56', '2022-07-21 10:20:53'),
(1974, 'BTnGA03wYX2oD6qRmngdeBORw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When sole plaintiff dies and application is filed by persons claiming to be legal representatives, it is the duty of the Court to consider whether the right to sue survives. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shobha Laxman Patil and others Vs Karewwa Basappa Pujeri and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 146130 of 2020 decided on 12 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice R. Devdas.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioners are all daughters of Sri Yallappa B.Patil, who was the sole plaintiff in O.S.No.418/2019. Sri Yallappa B.Patil had filed O.S.No.418/2019 seeking a declaration to declare him as the absolute owner of suit property in RS No.99/1 measuring 4 acres, by virtue of a registered Will dated 04.09.2018 executed by his daughter Smt.Sumithra. It was contended that Smt.Sumithra who had executed a registered Will dated 04.09.2018 bequeathing her rights in respect of the land in question in favour of her father, died subsequent to the execution of the Will. On the strength of the registered Will, Sri Yallappa B.Patil sought for such a declaration at the hands of the Principal Senior Civil Judge, Gokak. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. However, during the course of the suit, the sole plaintiff Sri Yallappa B.Patil died on 09.02.2020. Therefore the petitioners herein filed I.A.No.2 under Order 22 Rule 3 of CPC with a prayer to permit them as legal representatives  of  the  deceased  plaintiff  Sri  Yallappa B.Patil to be brought on record. The said application has been dismissed by the trial court on the ground that Smt.Sumithra acquired the property under the alleged Will towards her maintenance in the suit filed by her and the beneficiary under the Will left behind Smt. Sumithra also died without proving the Will and therefore it was held that the legal representatives of Sri Yallappa B.Patil have no locustandi to prosecute the suit. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3. Learned counsel would drawn the attention of this Court to a judgment of the Hon’ble Supreme Court in the case of Jaladi Suguna (Dead) through L.Rs. /vs./ Satya Sai Central Trust & Ors. – AIR 2008 SC 2866. Learned counsel would submit that the Hon’ble Apex Court has held that having regard to provisions contained in Rules 4 and 5 of Order 22 they are mandatory.  It was held that Court cannot simply say that it will hear all rival claimants to the estate of the deceased respondent and proceed to hear the appeal, nor can it implead all persons claiming to be the  legal representatives, as parties to the appeal without deciding who will represent the estate of the deceased, and proceed to hear the appeal on merits. It was held that the Court cannot postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. The code clearly provides that where a question arises as to whether any persons is or is not the legal representative of a deceased respondent, such question shall be determined by the Court. It was also held that though Rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, nevertheless, Rule 4 read with Rule 11 make it clear the appeal can be heard only after the legal representatives are brought on record.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Having heard the learned counsels and on perusing the petition papers, this Court finds that in the present set of factual matrix, wherein the sole plaintiff died during the course of the suit and when application is made  by  his  legal  representatives  seeking  to  come  on record as legal representatives of the plaintiff, what the trial court was required to first consider is whether the right to sue survives, as provided in Rule 1 of Order 22. Rule 1 of Order 22 provides that the death of plaintiff/defendant shall not cause to suit to abate if the right to sue survives. Therefore, the trial court was required to consider as to whether the right to sue survives on the legal representatives of the deceased sole plaintiff.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. In<span style=\"white-space:pre\">	</span>MELEPURATH SANKUNNI EZHUTHASSAN (supra), while noticing Rule 1 of Order 22, it was held, if the right to sue does not survive the suit will abate on the death of the sole plaintiff. Under Rule 3 of Order 22 where a sole plaintiff dies and the right to sue survives, the court, on an application made in that behalf, will cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. If, no application in that behalf is made within the time prescribed by law, the suit will abate. However, under Rule 9(2), the Court may set aside the abatement of the suit on the application of the person claiming to be the legal representative of the deceased plaintiff if he proves that he was prevented by any sufficient cause from continuing the suit. It was also noticed that Clause (11) of Section 2 of the Code defines “legal representative” as meaning inter alia “a person who in law represents the estate of a deceased person”.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. It was further held that under the Common Law, the general rule was that death of either party extinguished any cause of a action in tort by one against the other. This was expressed by the maxim actio personalis moritur cum persona (a personal action dies with the person). However, by the Law Reform (Miscellaneous Provisions) Act, 1934, all causes of action vested in a person survive for the benefit of his estate except causes of action for defamation or seduction which abate on the death of such person.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. The Apex Court also held that though Section 306 speaks only of executors and administrators but on principle, the same position must necessarily prevail in the case of other legal representatives, for such legal representatives cannot in law be in a better or worse position than executors and administrators and what applies to executors and administrators will apply to other legal representatives also.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. In M.VEERAPPA (supra), since it was contended on behalf of the defendant that the entire suit filed at the hands of the sole deceased plaintiff was founded on torts, and it was contended otherwise by the legal representatives of the deceased sole plaintiff that the action was founded on a contract, the Hon’ble Apex Court held that this aspect of the matter has to be considered by the Trial Court or the High Court. Therefore, without expressing any opinion in one way or the other as to whether the cause of action in that case was founded on torts or a contract, the matter was remanded back to the trial court for disposal while answering the question as to whether the suit was abated or not can be answered only after the nature of suit is determined.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. In PRABHAKARA ADIGA (supra) while noticing a catena of judgments, including that of Smt.Girijanandini Devi /vs./ Bijendra Narain Choudhary – AIR 1967 SC 1124, it was held that the maxim “action personalis moritur cum persona” meaning, a personal action dies with the person, has a limited application. It operates in a limited class of actions ex-delicto such as actions for damages, for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or if granting it would be nugatory. An action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory. Death of the person liable to render an account for property received by him does not therefore affect the liability of his estate. It was noticed that this question was not raised in the trial court and in the High Court. Nevertheless, even in a suit for bare injunction, it was held that the decree sought for grant of injunction is to the disputed property which is heritable and partible which will enure not only to the benefit of the legal heir of the decree holders but also would bind the legal representatives of the judgment debtor.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">11. In the light of the said principles of law laid down by the Hon’ble Apex Court, it is clear that the Trial Court could not have rejected the application filed at the hands of the legal representatives of the sole deceased plaintiff Sri Yallappa B.Patil. The Trial Court  could not have rejected the application without considering the fact as to whether the right to sue survives on the legal representatives of the deceased plaintiff. Moreover, the plaintiff had filed a suit seeking a declaration that as legatee under the Will dated 04.09.2018, he would get all the rights to enjoy the property bequeathed under the Will. It is another matter that it is sought to be contended at the hands of the defendant that Smt. Sumithra herself had been given only to right to maintenance and therefore she could not have further bequeathed the said right in favour of Sri Yallappa B.Patil. These are all questions that are required to be considered by the Trial Court in a full fledged trial. At any rate, the impugned order dated 02.03.2020 passed by the trial court on I.A.No.2, rejecting the same and thereafter proceeding to hold that the suit itself stands abated by virtue of the death of the sole plaintiff, cannot be sustained.<br></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. Consequently, the writ petition is allowed</b></font><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8975f5991a35961261635ecd81b67ae0.JPG', '6dffb9f45a74781ee4d4dd1b4d4e9426.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-21', 1, '', '', '2022-07-20 17:17:00', '2022-07-21 14:25:29');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1975, '061N1uQuPUsnn1XIWdnpqsmNI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Ordinarily in matters of recruitment, only aggrieved candidate can complain against illegalities in the process. Association of employees cannot espouse individual/personal cause of its members. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The University of Agricultural Sciences and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Appeal 100030 of 2022 decided on 14 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit and Justice P. Krishna Bhat.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The intra court Appeal in W.A. No.100030/2022 (S-RES) inter alia by the University and the companion appeal with request for leave by the aspiring candidates in W.A. No.100076/2022 (S-RES), call in question a learned Single Judge’s order dated 04.12.2021, whereby private Respondents’ W.P.No.104236/2021 (S-RES) having been favoured, the subject recruitment process has been set at naught reserving liberty to the University to initiate a fresh one.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>II. FOUNDATIONAL FACTS OF THE CASE: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>The Appellant – Farm University initiated recruitment process for selection & appointment to the posts of officers enlisted under section 24(iv) to (ix) of the University of Agricultural Sciences Act, 2009 (hereinafter ‘2009 Act’) vide Recruitment Notification dated 15.07.2019. Certain qualifications & conditions as recommended by the High Level Committee (hereinafter ‘HLC’) and in terms of G.O. dated 23.11.2018 were incorporated in the said notification.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space:pre\">	</span>A learned Single Judge of this Court quashed the entire recruitment process finding fault with the alleged governmental interference in the affairs of university, reserving liberty to initiate the recruitment process de novo. The Board of Management (hereinafter BOM) Proceedings which prescribed the qualifications/conditions arguably stipulated at the instance of govt. vide G.O. dated 23.11.2018 have also been voided by the learned Single Judge. Hence, this appeal by the University. The aspirants/participants in the subject recruitment process are also before this Court in the companion appeal against the same order, of course craving leave, contending that though they were not parties eo nominee to the subject Writ Petition, they too are aggrieved. Leave needs to be and accordingly is granted, since prima facie they have a litigable interest, and no prejudice will be occasioned to any of the parties, by such grant.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>IV. OUR EXAMINATION OF THE MATTER:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>1. AS TO AUTONOMY OF THE UNIVERSITIES & GOVERNMENTAL INTEREFERENCE:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(c) Learned Senior Advocate, Mr. Khatawi appearing for the Appellant – University contended that the impugned judgment is faultsome, there being no demonstrable interference as such. Learned GA appearing for the State submitted that all these universities have taken huge lands & funds from the State, and therefore, the Government too is justified in having its say at least in some matters and to an extent. They both take the Court through certain provisions of 2009 Act, in support of their submissions. The question whether the Govt. can interfere in the affairs of universities need not much detain us any longer in view of our latest pronouncement in THE UNIVERSITY OF AGRICULTURAL SCIENCES  vs.  SRI. DR. DIGAMBARAPPA & OTHERS, wherein a deep anguish has been expressed against the unjustified interference of Govt. Secretaries in the affairs of Universities, as if they are notional extension of Govt. Departments. However, we hasten to add that what has been stated therein is only a general principle of autonomy, in the specific fact matrix of the case, which aspect we discuss infra.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>2. AS TO WHO SHOULD PRESCRIBE ELIGIBILITY & QUALIFICATIONS FOR THE OFFICERS OF THE UNIVERSITY:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(a) The question whether government can prescribe conditions & qualifications for the university’s recruitment process of the kind, need not retard us much, the answer being a firm ‘NO’. Reasons for this are not far to seek: Firstly, the universities by their very nature are autonomous bodies and therefore, government, even when it gives property & funds has to stay away from their internal affairs, as a matter of general policy enacted in the subject legislation. Secondly, it is the university who is the employer and therefore, ordinarily it is employers’ prerogative to prescribe eligibility conditions & qualifications for appointment to the posts/offices and others unless authorised cannot intervene. Thirdly, the posts enlisted in section 24(iv) to (ix) of the 2009 Act are predominantly academic in nature and therefore, in the very fitness of things, such matters should be deferentially left to the wisdom of University who is aided & advised by its statutory authorities, as rightly contended by learned counsel appearing for the Writ Petitioners.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>3. AS TO POWER OF THE GOVERNMENT TO HAVE ITS SAY IN MATTERS RELATING TO AFFAIRS OF THE UNIVERSITY: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(a)<span style=\"white-space:pre\">	</span>Now, let us scan the provisions of 2009 Act, which indicate some role to the Government as such, and permits participation of its high functionaries in the affairs of Farm Universities. Section 5(2) of the Act empowers the State Govt. to direct the Universities to reserve seats for women, SC & ST, agriculturists, children of agriculturists, candidates from other States, foreign students, defence personnel, Ex.-Servicemen & their children, etc. It also states that the University shall abide by the direction of the State Govt, issued in this regard. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(b) Section 8(1) of the Act gives a right to the Govt. to request the Chancellor to cause inspection or enquiry into several activities of the University and its institutions. Sub-Section (5) of Section 8 empowers the Govt. to direct the Vice-Chancellor to comply with the instructions of the Chancellor and sub-Section (7) straight way vests power in the Government to issue directions in the interest of the University. Sub-section (10) of Section 8 vests a wide power in the Govt. to annul  any  order,  notifications,  resolutions  or  any proceedings of the University that are not in conformity with the Act, the Statutes, Regulations or Ordinances or the policy of the State Govt. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(c) Clause (e) of Section 9 empowers the Govt. to transfer excess teachers & other employees of certain Farm Universities, inter se; this provision being exercised in consultation with the Vice-Chancellors. Section 10 gives power to the State Govt. to recommend to the Chancellor to issue directions to the Universities in the interest of their administration & academic function, etc. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(d) Section 41 provides for institution of pension, gratuity, insurance, provident fund, etc., by the University with the prior approval of the Govt. Section 42 directs the State Govt. to make annual grants to the Universities, subject to they being accountable to the Govt. Section 43 provides for the formation of Finance Committee which inter alia comprises of Principal Secretary to the Finance Department and the Principal Secretary to the Agricultural Departments or their nominees, as its Members. Section 47 empowers the Govt to permit the closure of any affiliated colleges or any course in such colleges. In addition to these, there are other provisions as well, which recognise some role for the Govt. to play.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>4. AS TO MEDIATE INTERFERENCE OF GOVERNMENT THROUGH ITS OFFICERS:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\">(a) Under this Act, half a dozen farm universities have been established in the State, is not in dispute. Chapter III of the Act enlists five principal authorities of whom three are relevant viz, (i) Board of Management, (ii) Academic Council, & (iii) Research Council. These are statutory bodies. Section 12(1) speaks of composition of BOM: four Principal Secretaries each heading their respective departments, i.e., Agriculture, Finance, Environment & Forest  and  Horticulture  happen  to  be  Members; </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Commissioner of Agriculture, Govt. of Karnataka is another Member. Section 13 specifies powers & functions of the BOM and makes it responsible inter alia for the conduct of all administrative affairs of the university. It also has power to create teaching & non – teaching posts with the approval of State Govt. It is the BOM which has to consider and approve the recommendations of Academic Council, Research Council and Extension Education Council.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(d) More importantly, Section 67(1) of 2009 Act creates the  State  Co-ordination  Committee  for  Agricultural Education, Research & Extension, inter alia comprising of Minister for Agriculture as its Chairperson, & Secretary to Agriculture Department as its Member Secretary. The functions of this body are mentioned in sub-Section (3). A duty is also cast upon this committee; in so many words, to ensure autonomy of the universities is also true. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(e) Section 26 of the Act makes the Minister of Agriculture for the State of Karnataka, the Pro-Chancellor of the University, ex officio. Section 27(2) empowers the Government to constitute a Search Committee for the selection of candidates for the post of Vice Chancellors. This Committee comprises of four Members of whom a nominee of the Government shall be one; it is the Government which appoints one of such Members to be the Chairman of the Committee. It also provides that the Secretary to the Department of Agriculture or his nominee shall be its Convener. Sub-sections (3) & (4) provide for the appointment of Vice-Chancellors by the Chancellor with the concurrence of State Govt. Section 38 empowers the Govt. to cause audit of the accounts of the University; Section 40 imposes the duty on the Vice-Chancellor and the Board of Management of the University to submit accounts and reports to the Govt.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>5. PERMISSIBLE LIMITS OF GOVERNMENTAL INTERVENTION IN CAMPUS AFFAIRS AND DR.DIGAMBARAPPA CASE: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(a) A conjoint reading of the aforesaid provisions of 2009 Act shows that the statutory policy does not erect an impregnable wall between the Govt. on the one side and these Universities on the other. Therefore, the obligation imposed vide Section 67(3)(a) on the State Co-ordination Committee for “Ensuring Autonomy of Agricultural Universities in the state” has to be construed in the light of other provisions of the Act which specifically assign to the State Govt. and its functionaries some role to play in certain affairs of the University as already discussed above. A holistic & meaningful reading of the provisions of the Act makes it abundantly clear that the roles envisaged for the State and University in effectuating the purpose of the enactment is not distinct, separate & independent but on most of the significant aspects of the activities of the University, a collaborative & participative one involving both these players.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(d) The decision in DR. DIGAMBARAPPA, supra heavily relied upon by the writ petitioners was essentially framed in the light of fact matrix of the case which plainly fell into the precincts of the proviso to Section 30 of the Act, which provided for appointment “as a temporary measure” when the recruitment process for regular appointments, was in the air. This decision referred to a ruling of a learned Single Judge in DR. PARAPPA SHANKARAPPA vs. THE SECRETARY TO GOVERNMENT5 whereby an examination of the provisions of the erstwhile Karnataka State Universities Act, 1976, gave least power to the Govt. in the matter of University affairs. It hardly needs to be stated that a decision is an authority for the proposition laid down in the conspectus of the facts of a case and that it cannot be mechanically invoked disregarding the differentials involved in the case at hands.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>6.<span style=\"white-space:pre\">	</span>AS TO CONSTRUING<span style=\"white-space:pre\">	</span>THE GOVERNMENT ORDER DATED 28.11.2018:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(a) The Co-ordination Committee formed under section 67(1) of the Act in its Proceedings dated 11.02.2015 had resolved to constitute a Committee of Directors of Education & Registrars of all farm universities in the State for suggesting ‘Common Guidelines & Score Card’ for the purpose of recruitment of officers & teachers. Apparently, the HLC comprises of experts & academicians. The Co-ordination Committee in the subject Resolution had given a broad mandate as to what exercise this HLC should undertake in genus, Item No. 7 thereof being in species. The HLC accomplished the task & submitted its report both to the govt. and to the university, which fact Mr. Kathavi passionately draws our attention to, from the record. True it is, that the Govt. vide G.O dated 23.11.2018 had ‘directed’ all the farm & allied universities in the State to incorporate certain recommendations as the common ‘yardsticks’ for recruitment to the posts in question. It is not the case of Writ Petitioners that what has been contained in this G.O. is not substantially similar to what is recommended by the HLC, as discussed and approved by the BOM of the university that too after obtaining views of the Academic Council.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(d) The G.O. could have been structured in a different textual form so that there was no scope for the complaint of ‘governmental interference’ in the affairs of the University is beside the point. The said G.O. is issued by an Under Secretary in the Department of Agriculture, Government of Karnataka. It does not mention any provision of any Act or Rules. The intent & purport of this G.O. is to make the recruitment process in all the farm Universities uniformly normative. Therefore, keeping that in view, it has asked these Universities to follow the common guidelines & scorecard method. What is suggested by the G.O. through the enclosures is substantially similar to the HLC recommendations that have been duly considered by the Academic Council, the BOM and by the Vice Chancellors. The contra is not the case of Writ Petitioners. Therefore, the argument of Governmental interference in the affairs of the University cannot be countenanced.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(f) All the above is reflected in the face page of the recruitment notification itself. It is not that something new and alien is prescribed by the G.O. It is not that either the Vice Chancellor, the BOM, the Academic Council or the Extension Education Council or such other statutory body had raised eyebrows on the contents of the G.O. Mr. Kathavi is more than justified in saying that the substance of G.O. is treated as a worthy input material which the University in its autonomy and accumulated wisdom has made use of in framing the recruitment notification and therefore, writ petitioners are not correct in raising hue & cry over the same. How the arguable invalidity of the G.O. of the kind can infect the proceedings of the BOM and the recruitment process in a wholesale way, eminently remains unanswered.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>7. NOTHING OBJECTIONABLE IN THE RECRUITMENT NOTIFICATION & NO PREJUDICE TO THE PARTICIPANTS & ASPIRANTS: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(a) The BOM, which is a body similar to Syndicate that obtains in other conventional Universities, has considered the recommendations of the HLC along with the views of Academic Council, in the backdrop of subject Government Order. It is also a matter of common knowledge that in several universities the general guidelines of the kind and the score card methods are employed for adjudging the comparative merits of candidates in the selection fray. What eligibility conditions & qualifications should be prescribed for the recruitment of officers is for the university to decide and accordingly it has deliberated, and decided too. It is not the case of Writ Petitioners that something weird & obnoxious has been prescribed in the recruitment notification or in the G.O. dated 23.11.2018 and that all they have been put to prejudice, thereby.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>8. AS TO APPROBATION & REPROBATION OF IN THE CONDUCT OF FIRST PETITIONER: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(a) The very Recruitment Notification, at it’s first page mentions the G.O. dated 23.11.2018, BOM proceedings, recommendation of the Academic Council, and Vice Chancellor’s order. The said G.O. was the outcome of deliberations of the government functionaries, all the Vice Chancellors & Registrars of six farm universities who had discussed the issue on 12.10.2018 & 23.10.2018. It is not a case of university acting under dictation of the Govt, abdicating its role. We have already held above that the subject G.O. does not amount to an unjustifiable interference with the affairs of university. There is nothing that vitiated the recruitment process. The 1st Writ Petitioner – Prof. Ramanagouda Patil has participated in the selection process unconditionally with full knowledge of the Recruitment Notification. In such a fact matrix, the Writ Petitioners could not have pressed into service the decision of the Apex Court in DR. (MAJOR) MEETA SAHAI vs. STATE OF BIHAR7 to contend that even the participants can put in challenge the recruitment process. They were as yet not called for the interview does not much matter.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>9. AS TO LOCUS STANDII OF 2ND PETITIONER –TEACHERS’ ASSOCIATION TO COMPLAIN AGAINST RECRUITMENT PROCESS:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(a) 2nd Petitioner is only an association of teachers. Ordinarily, in matters of recruitment, it is only the aggrieved candidate, who can complain against arguable illegalities in the process. Others cannot. Teachers’ Association of the kind cannot espouse the individual/personal cause of its members. Espousal of such causes is not shown to have been authorised by any statute like the Trade Unions Act, 1926 & Industrial Disputes Act, 1947, which provide for collective bargaining & espousal of individual causes of workmen. It is not that the Member Teachers of the Association are a vulnerable section of the society, who on their own could not come before the Court to lay a challenge to the recruitment process. Nor are they poor & disabled and therefore espousal was warranted. Added, what right of the association as such, is infringed is also not forthcoming from the pleadings of the writ petitioners or the submissions made on their behalf.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>In the above circumstances, these Appeals being meritorious, succeed, costs having been made easy. The impugned order of the learned Single Judge is set at naught. The University to accomplish the recruitment process, from the stage it was interdicted by the impugned order, on a war footing.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5285a63aa7b55fafae0549bcea6e8bb7.jpg', '08c518c477a102d1c1fff19d421ec3e6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-21', 1, '', '', '2022-07-20 18:12:18', '2022-07-21 08:26:37');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1976, 'v91ubyOLFysNzWkK3dp0pjY2M', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Supreme Court explains power and jurisdiction of the Appellate Tribunal under SEBI (Substantial Acquisition of Shares and Takeovers) Regulations and that of the Appellate Tribunal under the Securities and Exchange Board of India Act.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Securities and Exchange Board of India Vs Sunil Krishna Khaitan and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8249 of 2013 decided on 11 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sanjiv Khanna and Justice Bela M. Trivedi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Primary questions of law raised in these appeals relates to the\r\ninterpretation of Regulation 10 of the SEBI (Substantial Acquisition\r\nof Shares and Takeovers) Regulations, 1997;3\r\nthe power and\r\nexercise of the power by the Board under Regulations 44 read with\r\n45 of the Takeover Regulations, 1997; and the power and\r\njurisdiction of the Appellate Tribunal under Section 15T of the\r\nSecurities and Exchange Board of India Act, 1992.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>A. Background facts:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Khaitan Electrical Limited,5 a company incorporated in 1975, listed\r\non BSE Limited and National Stock Exchange Limited, is engaged\r\nin the business of manufacturing and marketing of electrical goods.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n4. KEL was founded by late Shri Krishna Khaitan (R12 in the appeal),\r\nwho had passed away on 04th November 2012 and is represented\r\nby his legal representatives. The promoter group consists of his\r\nfamily member/relative and associate entities, which include other\r\nrespondents in the appeal, namely Sunil Krishna Khaitan, M/s. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Khaitan Lefin Limited and M/s. The Oriental Mercantile Company\r\nLimited (R11\r\nst, R13\r\nrd and R14\r\nth respectively).\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>5. In the Extraordinary General Meeting held on 23rd March 2006, the\r\nshareholders of KEL had approved issuance of 10,00,000 equity\r\nshare warrants with the face value of Rs. 10/- each at a premium of\r\nRs. 50/- each on preferential basis to the respondents. The\r\nwarrants were to be converted into equity shares within a period of\r\neighteen months from the date of allotment.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. In the Extraordinary General Meeting held on 29th November 2006,\r\nthe shareholders had approved issuance of 10,00,000 warrants\r\nwith face value of Rs. 10/- each with premium of Rs. 121/- each on\r\npreferential basis to M/s. Khaitan Lefin Limited (R13),6 an identified\r\nmember of the promoter group, to be converted into equity shares\r\nwithin a period of eighteen months. This Extraordinary General\r\nMeeting had also approved issuance of 25,00,000 equity shares of\r\nface value of Rs. 10/- each at a premium of Rs. 125/- each on\r\npreferential basis to strategic investors. However, in this appeal, we\r\nare not concerned with the issue of shares to the strategic\r\ninvestors.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The respondents were served with the show-cause notice dated\r\n26th March 2012 issued by the Board with respect to violation of\r\nRegulations 10 and 11(1) of the Takeover Regulations 1997, calling\r\nupon them to show cause why suitable directions under Sections\r\n11 and 11B of the Act and Regulations 44 and 45 of the Takeover\r\nRegulations 1997 read with corresponding provisions of\r\nRegulations 33 and 35 of the SEBI (Substantial Acquisition of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Shares and Takeover) Regulations, 20117 should not be issued\r\nagainst them. Violation of Regulation 10 was predicated on the\r\nground that on 12th March 2007, shareholding of KLL (R13) had\r\nindividually increased from 10.52% to 17.16% and thereby it was\r\nmandatory for KLL to make a public announcement in accordance\r\nwith the provisions of Regulation 10 read with Regulation 14(1) of\r\nthe Takeover Regulations 1997 within four working days from 12th\r\nMarch 2007. Further, on 12th March 2007, the collective\r\nshareholding of the promoter group, including the acquirers, had\r\nincreased from 25.83% to 34.21% and, therefore, the acquirers\r\ncollectively were required to make a public announcement in\r\naccordance with the provisions of Regulation 11(1) read with\r\nRegulations 14(1) of the Takeover Regulations 1997 within four\r\nworking days from 12th March 2007.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>B. Contentions of the appellant/Board:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. The objective of the Takeover Regulations 1997 is to bring to the\r\nknowledge of the shareholders of the company any change in\r\nsubstantial ownership of the company and to provide an exit\r\nopportunity through an open offer in case of such substantial\r\nchange.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">24. Regulations 10, 11 and 12 operate in three distinct fields in which\r\nthe acquirer of shares or voting rights of the company is required to\r\nmake a public announcement and make an open offer to acquire\r\nshares of existing shareholders. These Regulations may overlap in\r\nsome cases as in the present case, but are not mutually exclusive, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as has been held by this Court in Swedish Match AB and Another\r\nv. Securities & Exchange Board of India and Another.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. Impugned judgment and reasoning given by the Appellate Tribunal\r\nis contrary to the objective of Regulation 10, which is to ensure that\r\nan exit option is provided to the existing shareholders once any\r\nperson, whether individually, and or along with any another person\r\nacting in concert with each other, acquires shares that cross the\r\n15% threshold. Such acquirer or group, as the case may be, would\r\nbe able to exercise sufficient degree of control over the\r\nmanagement of the company, which may not be in the interest of\r\nthe company and, therefore, exit option should be given to the\r\nexisting shareholders.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. In contrast, the objective of Regulation 11 is to provide an\r\nopportunity to the shareholders to exit in case an acquirer of shares,\r\nhaving 15% or more but less than 55% of the shares or voting\r\nrights, either individually or with persons acting in concert,\r\nincreases their shareholding or voting rights over 5% at any given\r\npoint in a financial year. As such acquisition enables the individual\r\nor the person acting in concert with others to yield greater influence\r\nover management of the company, and Regulations 11(1) of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Takeover Regulations 1997 provides for an exit option to the\r\nexisting shareholders.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">27. Regulation 3(3) of the Takeover Regulations 2011 makes explicit\r\nwhat was already implicit in the Takeover Regulations 1997, that in\r\na case an individual within the group crosses the stipulated\r\nminimum shareholding threshold, such an individual shall make a\r\npublic offer even when there is no change in aggregate\r\nshareholdings of the group, that is, persons acting in concert.\r\nReference is made to the report of the Takeover Regulation\r\nAdvisory Committee headed by Mr. C. Achuthan, which exhibits\r\nthat Regulation 3(3) is to clarify the requirement that was already\r\nexisting in the Takeover Regulations 1997.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>28. There is no estoppel against a statute and, therefore, the\r\nrespondents in appeals herein cannot take any advantage and\r\nplead that the Board is deviating from its earlier stance. Reference\r\nis made to Sanjiv Coke Manufacturing Company v. M/s. Bharat\r\nCoking Coal Limited and Another.\r\n13 In fact, the interpretation\r\ngiven by the Board in these appeals has been accepted by the\r\nAppellate Tribunal in certain cases.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. The Board has been conferred with powers under the Act in terms\r\nof Section 11 thereof to issue appropriate direction for protection of\r\ninterest of the shareholders; under Section 15-H read with Section\r\n15-I to impose monetary penalty on the defaulter; and under\r\nSection 24 to criminally prosecute the defaulter for contravention of\r\nthe provisions of the Act or regulations thereunder. These are\r\nseparate powers vested with the Board with distinct objectives,\r\nwhich can sometimes be overlapping but are not identical, as has\r\nbeen held by this Court in Prakash Gupta v. Securities &\r\nExchange Board of India.\r\n14 The Board being an expert body is\r\nentitled to exercise the aforesaid powers to subserve the interest of\r\nthe investors as well as to promote orderly and healthy growth of\r\nthe securities market.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. The Appellate Tribunal should not have interfered with the\r\ndirections to make an open offer, which are in line with the objective\r\nof Sections 11 and 11-B of the Act read with Regulation 44 of the\r\nTakeover Regulations 1997. The order passed by the Whole Time\r\nMember directing making of public announcement for open offer\r\nalong with paying interest to the shareholders of the target\r\ncompany, was made with the larger objective of protecting interests <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the shareholders who have a right and expectation to be provided\r\nwith the opportunity to exit the company in case the\r\nshareholding/voting rights of a person and/or persons acting in\r\nconcert crosses the stipulated threshold at any point of time.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>D: Interpretation of Regulation 10 of the Takeover Regulations,\r\n1997:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>36. Regulation 6, a transitional provision, states that any person who\r\nholds more than 5% shares or voting rights in a company shall,\r\nwithin two months of the notification of the Takeover Regulations\r\n1997, disclose the aggregate shareholding to the company.19 Every\r\ncompany is required to, within three months of the notification of the\r\nTakeover Regulations 1997, disclose, to all stock exchanges in\r\nwhich the shares of the company are listed, the aggregate number\r\nof shares held by such person.20 A promoter or person having\r\ncontrol over the company is required to, within two months, disclose\r\nthe number and percentage of voting rights held by him and the\r\npersons acting in concert with him to the company.21 In turn, the\r\ncompany is, within three months, required to disclose to all stock\r\nexchanges in which the shares of the company are listed, the\r\nnames and addresses of the promoters or the persons having <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">control of the company, the number and percentage of shares or\r\nvoting rights held by each such person.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 37. Regulation 7 states that any acquirer who acquires shares or voting\r\nrights, taken together with the shares or voting rights already held\r\nby him, which would entitle him to more than 5% or 10% or 14% or\r\n54% or 74% shares or voting rights of the company in any manner\r\nwhatsoever, disclose at every stage, aggregate of his shareholding\r\nor voting rights to the company and to the stock exchanges where\r\nthe shares are listed.23 Sub-regulation 1A to Regulation 7 states that\r\nany acquirer who has acquired shares or voting rights of the\r\ncompany, under sub-regulation 1 to Regulation 11 or under second\r\nproviso to sub-regulation 2 to Regulation 11, shall disclose the\r\npurchase or sale aggregating 2% or more of the share capital of the\r\ntarget company to the target company, and to the stock exchanges\r\nwhere the shares of the target company are listed within two days\r\nof such purchase or sale along with aggregate of shareholding after\r\nsuch acquisition or sale. The explanation to Regulation 7(1) and\r\n(1A) states that the term ‘acquirer’ for sub-regulation (1) and (1A)\r\nshall include a pledgee, other than a bank or financial institution.\r\nSuch pledgee shall make a disclosure to the target company and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">he stock exchange within two days of creation of the pledge. Subregulation (2A) to Regulation 7 states that the stock exchange shall\r\nimmediately display the information received from the acquirer\r\nunder sub-regulation (1) and (1A) on the trading screen, the notice\r\nboard and also on its website. Sub-regulation (3) requires every\r\ncompany whose shares are acquired in the manner referred to in\r\nsub-regulation (1) and (1A) to disclose to all stock exchanges, on\r\nwhich the shares of the said company are listed, the aggregate\r\nnumber of shares held by such persons referred above, within\r\nseven days of receipt of information under sub-regulation (1) and\r\n(1A) of Regulation 7 of the Takeover Regulations 1997.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">38. Regulation 6 exposits transparency and openness which is required\r\nin the form of disclosure to be made by the shareholders, promoters\r\nor a person having control over the company, as well as the\r\ncompany in which they hold the shares. The information is not only\r\ngiven to the stock exchanges where the shares of the company are\r\nlisted but are also put in the public domain so as to inform the\r\nshareholders and others. Similar transparency and openness is\r\nmandated by Regulation 7 which uses the expression ‘acquirer’,\r\nand applies when the ‘acquirer’ acquires shares or voting rights of\r\nthe specified percentage in the company. Regulation 6 consciously\r\nuses the terms ‘person’, ‘promoter’, or ‘a person having control over </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the company’, and does not use the term ‘acquirer’, as the term\r\n‘acquirer’ has been given, as noticed below, a specific legal\r\nmeaning by the Takeover Regulations 1997. Regulation 7, on the\r\nother hand, expressly uses the term ‘acquirer’.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">39. When we turn to Regulation 8 which deals with ‘continuous\r\ndisclosures’, the regulation uses the term ‘person’, ‘promoter’, and\r\n‘every person having control over the company’, which are the\r\nterms used in Regulation 6. Regulation 8 stipulates every person,\r\nwhich includes the person mentioned in Regulation 6, who hold\r\nmore than 15% shares of voting rights as on 31st March shall make\r\na disclosure to the company within 21 days from the end of the\r\nfinancial year. There is a similar stipulation in sub-regulation (2) to\r\nregulation 8 which requires a promoter or every person having\r\ncontrol over a company to make a disclosure within 21 days from\r\nthe end of the financial year, as well as the record date of the\r\ncompany for declaration of dividend, to make a disclosure of the\r\nnumber and percentage of shares or voting rights held by him and\r\nby persons acting in concert with him in that company to the\r\ncompany. The expression ‘person acting in concert’ has been\r\ndefined in clause (e) to Section 2(1) of the Regulation, which clause\r\nhas been examined and interpreted by us subsequently, also finds\r\nreference in the expression ‘acquirer’ defined by clause (b) in</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regulation 2 to the Takeover Regulations 1997. Every company\r\nwhose shares are listed in the stock exchange is mandated by\r\nRegulation 8(3) to make a disclosure to all stock exchanges where\r\ntheir shares are listed, within 30 days of the end of the financial year\r\nas well as the record date for the purpose of declaration of dividend\r\nas to the holdings of the persons covered by sub-regulations (1)\r\nand (2) of Regulation 8. Regulation 8(4) states that every company,\r\nwhose shares are listed, shall maintain a register in the specified\r\nformat to record the information received under sub-regulation (3)\r\nto Regulation 6, sub-regulation (1) to Regulation 7 and subregulation (2) to Regulation 8.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>42. The object of the aforesaid wide definitions is to ensure that no one\r\nis able to dribble past and defeat the Takeover Regulations 1997\r\nby resorting to camouflage and subterfuge.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">44. We agree with the interpretation. Regulation 10 states that no\r\n‘acquirer’ shall acquire voting rights, which taken together with the\r\nshares or voting rights held by him or by a ‘person acting in concert’\r\nwould entitle the ‘acquirer’ to exercise 15% or more of the voting\r\nrights in the company, unless such ‘acquirer’ makes public\r\nannouncement to acquire shares in accordance with the\r\nregulations. The word ‘acquirer’ used in Regulation 10 takes its\r\nmeaning from the definition clause (b) to Regulation 2(1), which\r\nrefers to the shareholder as an individual and also ‘person acting in\r\nconcert’ with the him, which expression has been very widely\r\ndefined vide clause (e) to Regulation 2(1) of the Takeover\r\nRegulations 1997. The Appellate Tribunal has, therefore, rightly\r\nheld that the word ‘acquirer’, which is a term of art,25 should not be\r\nrestricted to shares or voting rights of the individual shareholder as\r\nthe term as defined includes the ‘person acting in concert’ with the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">hareholder. The shareholding/voting rights of the ‘acquirer’, that is\r\nthe individual shareholder together with the ‘person acting in\r\nconcert’ decides whether the ‘acquirer’ is required to make a public\r\noffer/announcement in terms of Regulation 10, which applies when\r\nthe voting rights of the ‘acquirer’ before acquisition were less than\r\n15 %, but on fresh acquisition exceed 15% of the voting rights in\r\nthe company. Regulation 10 does not apply when the collective\r\nvoting rights of the individual shareholder and the ‘person acting in\r\nconcert’, taken together is 15% or more on the date when fresh\r\nshares or voting rights are acquired. The bracketed portion of\r\nRegulation 10, namely “taken together with shares or voting rights,\r\nif any, held by him or by persons acting in concert with him” affirms\r\nand endorses this interpretation.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>46. In the context of Regulation 10, we do not think that the draftsmen\r\nhad committed a mistake or had forgotten the definition clauses\r\nwhile wording Regulation 10, wherein they have consciously used\r\nthe expression ‘acquirer’, after having defined the same, instead of\r\nthe word a ‘person’, which word has been used in Regulations 6\r\nand 8 of the Takeover Regulations 1997. To accept the\r\ninterpretation given by the Board, we would have to stretch the\r\nlanguage of Regulation 10 and not read it as it reads, by assuming\r\nthat the intent is to apply Regulation 10 in two situations (i) when\r\nthe acquirer as a single entity, without taking into consideration the\r\nshareholding or voting rights of the person(s) acting in concert; as\r\nwell as (ii) when the single entity together with the person(s) acting <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in concert, acquire voting rights, and in either case to cross the\r\nstipulation of 15% of the voting rights. But this would require us to\r\nignore or rewrite the word ‘acquirer’ which as defined includes the\r\n‘person(s) acting in concert’. It defeats the object and purpose\r\nbehind the ‘term of art’ definition. Regulation 10 applies to the\r\n‘acquirer’ acquiring voting rights, with reference to the existing\r\nholding as a person and in concert with other persons, because the\r\nacquisition is to be “taken together with shares or voting rights held\r\nby the acquirer himself or by person acting in concert with him”. The\r\ncombined holding of the person and the ‘person acting in concert’\r\ndetermines application of Regulation 10. If an ‘acquirer’ already\r\nholds more than 15 % shares or voting rights in concert with other\r\npersons, such holding is not be fragmented to calculate the shares\r\nor voting rights of the ‘acquirer’ in his personal capacity under\r\nRegulation 10.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>54. In the context of the present case, it is to be noted that the Board is\r\nthe draftsman of the legislation having enacted the Takeover\r\nRegulations 1997 and hence, their interpretation and\r\nunderstanding of the Regulations is of importance and relevance.\r\nIn the context of the present case, the Board, nearly five years after\r\nthe transactions, had issued the show-cause notice and then\r\npassed an order taking a view on interpretation of Regulation 10,\r\nwhich was contrary to the view expressed by it in several <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">communications as also orders passed by the adjudicating\r\nauthority.Past is passe and not present, and by giving ‘retroactive’\r\noperation without good reason and ground, the direction violates\r\nfundamental notions of predictability and legal stability</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">55. We also feel that the principle of doubtful penalisation would be\r\napplicable in the present case. Way back in 1955, this Court in\r\nTolaram Relumal and Another v. State of Bombay had held\r\nthat it is a well settled rule of construction of penal statutes that if\r\ntwo views and reasonable constructions can be put on a provision,\r\nthe court must lean in favour of construction which exempts the\r\nsubject from penalty rather than one which imposes penalty. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Reference was thereafter made to Francis Bennion’s\r\nStatutory Interpretation which observes that the principle of doubtful\r\npenalisation, often limited to criminal statutes, in fact, extends to\r\nany form of detriment. The jurist has opined that it is a principle of\r\nlegal policy that a person should not be penalised except under\r\nclear law. We, when considering in relation to the facts of the instant\r\ncase, wherein the opposing constructions of the enactment is\r\npossible, should presume that the legislature intended to observe\r\nthis principle. The courts, therefore, try to avoid adopting a </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">construction which penalises a person where the legislature’s\r\nintention to do so is doubtful.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>72. In the context of Regulations 44 and 45, it implies that the Board\r\nhas the power to make a choice between different courses of action\r\nor inaction. This choice is not unfettered but is always held subject\r\nto implied limitations inherent in every statute, limitations set by the\r\ncommon law and the constitutional mandate of rule of law. The\r\nunderlying rationale of giving discretion is to ensure that the Board\r\nexercises the discretion in consonance with legitimate values of\r\npublic law, which include need to maintain legal certainty and\r\nconsistency which are at the heart of the principle of rule of law. These have to be balanced with other equally legitimate public law <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">value, which is the object and purpose of the enactment. The need\r\nfor the said flexibility is given and is necessary to meet unusual and\r\npractical situations and to do justice in a particular case.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>79. We entirely agree with the reasoning given by the Appellate\r\nTribunal for setting aside the directions given in the penultimate\r\nparagraph of the orders passed by the Whole Time Member. As\r\nnoticed above, the violation alleged in Appeal No. 23 of 2013 in the\r\ncase of Sunil Krishna Khaitan relates to the years 2006-2007. The\r\norder issuing the directions was passed on 31st December 2012,\r\nnearly eight years after the alleged violation. The direction given is\r\nthat the shareholders should be given an option to sell the shares\r\nheld by them on 16th June 2007 by directing the respondents to\r\nmake a public announcement to acquire the shares. Direction has\r\nalso been given to pay interest @ 10% per annum from 16th June\r\n2007 till shares have been accepted in the open offer. The dividend\r\npaid, if any, would be adjusted. We are not stating that this direction\r\ncan never be issued, but the exercise of discretion to issue the said\r\ndirections has to be predicated and based upon good grounds and\r\nreasons. The directions of this nature are not automatic and are to\r\nbe issued only when they are warranted and justified. The\r\nincongruities and absurdities of the directions issued have been <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>highlighted and noticed in the order passed by the Appellate\r\nTribunal.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>80. The direction given by the Board vide letter dated 17th December\r\n2012 in the case of Madhuri S. Pitti in the form of direction to modify\r\nthe draft letter of offer submitted to the Board for approval on 19th\r\nSeptember 2011 pursuant to the public announcement made by\r\nPLL on 9th September 2011, it must be stated, is rather odd and\r\ndefies objectivity and logic. The Appellate Tribunal is right in\r\nnoticing that there was lack of clarity on the part of the Board as to\r\nthe provision under which the power has been exercised, as the\r\nBoard’s power under Regulation 18 of the Takeover Regulations\r\n1997 is to specify changes, if any, in the letter of offer, without there\r\nbeing any obligation on the part of the Board to do so, and\r\nthereupon the merchant banker and the ‘acquirer’ are required to\r\ncarry out such changes before the letter of offer is despatched to\r\nthe shareholders. As per sub-regulation (2), the letter of offer is to\r\nbe despatched to the shareholder not earlier than 21 days from the\r\ndate of submission of the letter of offer to the Board in terms of subregulation (1). In this case, directions of the Board for amendment\r\nof the letter of offer was issued after a lapse of more than one year\r\nas the draft letter of offer was submitted on 19th September 2011\r\nand the directions were issued vide letter dated 17th December <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2012. Further, these directions were for the reason that the acquirer\r\nhad failed to comply with Regulation 10 of the Takeover\r\nRegulations 1997 in the remote past, that is, in the year 2006 and\r\n2007. Clearly, this is whimsical and arbitrary exercise of discretion\r\nby the Board which would have led to chaos and confusion.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>81. This Court in the judgment authored by one of us (Sanjiv Khanna,\r\nJ.) in Bhavesh Pabari (supra) had examined the question of delay\r\nand laches in initiating proceedings under Chapter VI-A of the Act\r\nand the principle of law that when no limitation period is prescribed\r\nproceedings should be initiated within a reasonable time and what\r\nwould be reasonable time would depend upon facts and\r\ncircumstances of each case.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>83. We have already referred to Regulations 6, 7 and 8 of Takeover\r\nRegulations 1997 which requires the acquirer/shareholders to\r\nmake disclosures to the company as well as to the stock exchange\r\nwhere the shares are listed. Violation of Regulations 6, 7 and 8 is\r\nnot alleged. While it is true that the said disclosures and public\r\nnotice of the disclosures cannot be treated as disclosure to the\r\nBoard or authorities under the Act, the Board and the authorities,\r\nas a good regulator, cannot also claim complete ignorance.\r\nSignificantly, in the present case, the investors of the target\r\ncompany have not raised any objection. The impugned order\r\npassed by the Whole Time Member does not refer to any market\r\nmanipulation or fluctuation in share price, which was detrimental to\r\nthe interests of the investors. It is not the case of the Board that any\r\nwindfall gains or profits have been made by the respondents on\r\naccount of violation of Regulation 11(1) of Takeover Regulations <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">market in case the investors/shareholders in the target company as\r\non 16th June 2007 are given an option to sell their shares on or after\r\n31st December 2012, possibity of distruption on the functioning\r\nmarket place, detrimental impact on the market place/investor\r\nconfidence, qualitative impact of the retroactive directions on the\r\nlaw’s santity predicated on predicibilty and legal stability, as well as\r\nundermining of the people’s faith and trust on the Board as the\r\nprotector of law. The directions, therefore, cannot be sustained.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">84. There is, as noticed and held below, some merit in the contention\r\nof the Board that the Appellate Tribunal could not have imposed\r\npenalty under Section 15-H when proceedings under the said\r\nSection had not been invoked by the Board and there is no order\r\npassed by the adjudicating authority imposing penalty under\r\nSection 15-H of the Act. However, the effect of the argument raised\r\nby the Board would be that the order passed by the Whole Time\r\nMember under Regulation 44 giving directions would be quashed\r\nand set aside. The respondents would have, therefore, escaped\r\nwithout having to pay any penalty for violation of Regulation 11(1)\r\nof the Takeover Regulations 1997. It is in this factual background\r\nwe have to decide the present appeals. As noticed above, the</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>F. Power of the Appellate Tribunal under section 15T of the Act:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">90. We have also referred to Regulation 45 which in sub-regulation (6)\r\nrefers to different types of penalties which can be imposed on a\r\nperson violating any of the provisions of the Regulations. The\r\nAppellate Tribunal does not have the power for the first time to\r\ninitiate and thereupon, impose penalty for non-compliance of the\r\nprovisions of the Regulations under Chapter VI-A of the Act while\r\ndeciding an appeal against directions issued under Regulation 44\r\nof the Takeover Regulations, 1997. That power is vested with the\r\nauthority specified in the Act or the Regulations. The Appellate\r\nTribunal is an appellate forum and not the authority empowered to\r\ninitiate penalty proceedings under Section 15-H or suo moto issue\r\ndirections under Section 11, 11B or 11(4)(d) of the Act. It can uphold\r\nor set aside the direction issued, or modify and substitute the\r\ndirection issued under Regulation 44 of the Takeover Regulations\r\n1997 read with Sections 11, 11B and 11(4)(d) of the Act. Similarly,\r\nAppellate Tribunal can uphold, set aside, modify and even\r\nsubstitute the order of penalty under Chapter VI-A of the Act. The\r\npower to initiate and levy penalty in terms of Section 15-I\r\n73 is vested </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">with an officer to be appointed by the Board, not below the rank of\r\nDivisional Commissioner, to act as an adjudicating officer. The\r\nadjudicating officer is required to hold an inquiry in the prescribed\r\nmanner after giving the person a reasonable opportunity of being\r\nheard for the purpose of imposing any penalty. Powers are vested\r\nwith the adjudicating officer to summon and enforce attendance of\r\nany person acquainted with the facts and circumstances of the case\r\nto give evidence or to produce any document.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">91. Thus, the Appellate Tribunal in Appeal No. 23 of 2013 in the case\r\nof Sunil Krishna Khaitan, could not have substituted the penalty\r\nimposed by the Board under Regulation 44 with that of penalty\r\nunder Section 15-H. An appropriate view, in our opinion, would be\r\nthat when the Appellate Tribunal holds that the order passed by the\r\nWhole Time member on violation of Regulations 10, 11 and 12 is\r\nsustainable, but the directions given in the order under Regulation </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">44 are not sustainable, it should leave it open to the Board to initiate\r\nproceedings and pass an order under Chapter VI-A of the Act.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>92. However, as held above, in the absence of any cross-appeal or\r\ncross-objection by the respondent in Appeal No. 23 of 2013 (Sunil\r\nKrishna Khaitan’s case), we are not interfering with the order\r\nimposing penalty of Rs.25,00,000/- for the violation of Regulation\r\n11(1) of the Takeover Regulations 1997. The said direction has\r\nattained finality. At the same time, we are inclined to direct that the\r\nBoard would give quietus to the matter and should not initiate\r\nproceedings under Chapter VI-A of the Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>93. For the aforesaid reasons and grounds, the Civil Appeals preferred\r\nby the Board are dismissed with the clarification as to the power of\r\nthe Appellate Tribunal under Section 15-T of Chapter VI-A of the\r\nAct, which is confined to examination of correctness and legality of\r\nthe order under challenge.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>94. There will be no order as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '787948ab4534297d3f41a7289e43941f.jpg', 'a4069fc932de293673e0d7910336b1e9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-21', 1, '', '', '2022-07-20 19:05:23', '2022-07-21 06:27:05');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1977, 'eXKaC5L8wOOdncTtV0n52Vqke', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land acquisition cannot be frowned upon for lack of detailed consideration in Section 5-A report unless it is shown to be violative of provisions of the Act or in colourable exercise of power. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gopal Govind Karjol and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Appeal 100139 of 2022 decided on 20 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit and Justice P. Krishna Bhat.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Under the impugned notifications, about 1275 acres of lands were acquired in Muchakandi & Bagalakote villages of Bagalkot District for the purpose of implementing Unit-III of Upper Krishna Project (for short “UKP“). It is stated that ever since 1985, lands were being acquired for implementing UKP which was for the avowed “Public Purpose” of irrigating large tracts of land in various districts of North Karnataka extending upto Yadagiri. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. There is no dispute about the fact that an award dated 30.12.2010 was passed by the Krishna Water Dispute Tribunal–II permitting the increase of height of Dam from 523 mtrs to 525 mtrs which in its wake would have submerged large extents of lands in Bagalkot. The impugned notifications were issued for establishing township in order to rehabilitate and resettle people who were going to be displaced on account of such submergence.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. On the first question, by taking note of the relevant dates and the provisions of the Land Acquisition Act, 1894 (for short, ‘Act’), the learned Single Judge recorded a finding in the negative. The discussions in this behalf are at paragraphs 29 to 43 of the impugned judgment. The correctness of the said finding has not been seriously contested before us by the learned Senior Counsel Sri. Ashok Haranahalli, appearing for the appellants. In any case, the relevant dates noticed by the learned Single Judge having not been disputed before us, we are satisfied that no other conclusion on the said point for consideration in the facts of the case is possible.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. As we have already noticed, under the impugned notifications, large extent of lands has been acquired for rehabilitation of people displaced on account of implementing Unit-III of UKP. There is no dispute about the fact that the said project was meant to be implemented in various stages in order to quench the needs of large tracts of parched lands which the experts assessed as arable with scientific irrigation. There is also no dispute that a Dam has been built several decades ago benefiting tens and thousands of hectares of land in various districts of North-Karnataka region and the comprehensive plan envisaged implementation of what was called as “Unit-III”. There was also a subsequent development sometime in 2010 by which State Government was permitted to utilize more volumes of water (303 TMC) for satisfying its local needs arising in the adjoining districts of Dam area. Therefore, there was also an urgent need to utilize the benefits emanating from the award passed by the Krishna Water Dispute Tribunal-II to promote public weal.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>22. To sum-up, when a measure taken by the Government is for implementing a Mega Infrastructural Project pursuant to a policy framed embedded with the opinion of experts, Court should refrain from acting like a super-accountant and interference with the same should be extremely rare where it is inevitable. It is primarily the task of the Government to govern and in the guise of judicial review, Courts should not seek to run the governments. Smelling foul-play in the action of the government at a mere whiff of suggestion would make running the administration an impossibility and elected governments which are accountable to the people will be hamstrung in implementing projects for promoting public weal. Where two options are possible, it is not for the Court to act as an expert and substitute its own view for the view of the executive. In matters of such nature, an appeal is essentially to the ballot and not to the Courts. Courts do not have the expertise nor the political mandate for deciding the comparative merits of two options. It is relevant to notice that in Ramniklal even goes to the extent of suggesting that moulding the relief in a suitable manner should be the preferred choice with the Court rather than striking down the acquisition.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>25. The Hon’ble Supreme Court has further struck a note of caution that though the Courts are generally not entitled to go behind the declaration of the Government to the effect that the acquisition is for “public purpose”, an exercise of judicial review is permissible where power of acquisition is exercised in a colourable manner or if it is a fraud on power.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>35. We have carefully perused the above observations of the learned Single Judge and we are in respectful agreement with the proposition of law stated by him. Perusal of the statement of objections filed by the petitioners before the competent authority raising various objections to the acquisition shows that they are extremely bald and general in nature and lacking in specificity, and incapable of being dealt with by the competent authority. As in N. Somashekar, so in these cases while the petitioners have taken the contention that other non-agricultural suitable lands are available, they have given no particulars thereof for being considered by the competent authority. Insofar as the need, the suitability and advantages arising from acquisition of subject lands notwithstanding they being agricultural lands for the purpose of rehabilitating project displaced persons on account of submergence is concerned, that essentially is a matter of policy and therefore, so long as the acquisition itself is not shown to be violative of provisions of the Act or essentially in colourable exercise of power, it cannot be frowned upon for lack of detailed consideration of the same in the 5-A report. That, the project proposal was backed up by vision document of considerable vintage and further subject acquisition is supported by report from Experts is demonstrated before the Court by producing the same. It is also evident that this vision document and the opinion of the experts were prepared long anterior to the subject  acquisition  and  they  are  not  the  outcome  of  the subsequent efforts by the State to justify and substantiate what has already been done by it. In view of the same, we have no hesitation in rejecting the contention of Sri. Ashok Haranahalli in this behalf.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>37. We notice that the document relied by the learned Senior Counsel to support his contention is the vision document prepared before the acquisition of 4544 acres during 1985-86 showing the extent of land required for implementation of each of the project namely Unit-I, Unit-II and Unit-III. The subject acquisition is for implementing Unit-III of the Project.  However, learned Senior Counsel does not dispute the fact that the legality of the earlier acquisition is not in challenge now and that the lands required for the implementation of Unit-III is simply not available as of now except a measly extent of slightly more than 100 acres which is much less than the land required for the execution of the current project and therefore, the existence of the “public purpose” for the subject acquisition to meet the current needs cannot be gainsaid. And what are the reasons advanced by the learned Senior Counsel to demonstrate  his  legal  contention  that  on  account  of, according to him, the State frittering away the lands earlier acquired, again according to him, by utilizing the lands so acquired for unauthorized purposes, foul-play should be smelled regarding the present acquisition also so as to conclude that there is demonstrable lack of public purpose? It needs to be noticed that he seeks to substantiate his contention by pointing out that the lands acquired during 1985-86 were allotted to Karnataka Industrial Areas Development Board; for establishing various other public institutions; and also for establishing Agri-techno-park etc.. It was also suggested during submission that some parcels of lands earlier acquired found their way through to the hands of some private parties which had a characteristic of “shady deals”. We agree with the submission of learned Senior Counsel Sri. M.R. Naik that this last submission is not supported by any specific pleading before the learned Single Judge thereby depriving the respondents of an opportunity of meeting them and rightly, as a result thereof, was not dealt with by the learned Single Judge as well. In that view of the matter, it is not prudent on our part to go into the factual merits of the said contention. However, in light of limitations on exercise of judicial review in matters of this nature as adumbrated by the Hon’ble Supreme Court in various decisions referred to supra, it needs to be observed with reference to the objections of this nature taken by the learned Senior Counsel for the appellants both in regard to the past acquisition as a ground to doubt the bonafides of the current one emanating from the alleged mis-utilization of the lands so acquired and concerning the subject acquisition as to the possible mis-utilization of the extent of lands acquired in comparison with the alleged need to sub-serve the purpose of rehabilitation of the displaced persons, we only need to be guided by the sage advice of Chief Justice Neely39 that our intervention is called for in this jurisdiction only when violation of the constitutional right of a citizen is demonstrated or as cautioned in Somawanti40, only when colourable  exercise of power or fraud on power is demonstrated. We are not satisfied that the learned Senior Counsel could make out any such case before us.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>40. After hearing the elaborate submissions of both sides, we are completely satisfied that the subject acquisition has to be seen as in fulfillment of the requirement of execution of ongoing project of rehabilitating the project displaced  families  as  part  of  integral  development  of Bagalkot Town under BTDA which, perforce, should fulfill overlapping requirements and overlapping objectives. In that view of the matter, the purpose being demonstrably one to promote public welfare, we are not in a position to agree with the contention of the learned Senior Counsel that there is no public purpose in the acquisition. We cannot don the hat of a town planner or that of an Accountant to minutely examine whether a slightly lesser extent of land would have fulfilled the objective or whether the project could have been implemented satisfactorily at another location. Such an exercise by us would tantamount to substituting our views to that of the State which has the advantage of expert advice. There is absolutely no material to support the contention that the acquisition is colourable exercise of power and therefore, illegal. Once that is not demonstrated, no case is made out for our interference under the writ jurisdiction. As held in Ramaniklal N Bhutta quashing of acquisition of lands made for a project of such public importance as in the current  one  should  be a rare one and only  when  it  is inevitable. We are not satisfied that this is not one such instance where such a case is made out.  There may be some error here or some minor infractions there, but then in any human endeavour, infractions and violations of minor nature are inevitable; but, we are conscious that it is not for us to do nit picking and smell foul-play at mere whiff of a suggestion.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>41. Learned Senior Counsel Sri. Ashok Haranahalli contended that the acquisition of large extent of fertile agricultural lands for rehabilitation purpose amounts to depriving livelihood of affected parties including the present appellants and the same has been frowned upon by the Hon’ble Supreme Court. In this behalf, he invited our attention to the decision of the Hon’ble Supreme Court in Raghbir Singh Sehrawat Vs. State of Haryana & Others. We have carefully perused the said decision rendered by a two-judge bench of the Hon’ble Supreme Court. The Hon’ble Supreme Court in the said case was considering 4(1) notification dated 22.06.2022 issued by the Government of Haryana for acquisition of 3183 Kanals 17 marlas (476 acres 5 kanals 17 marlas) in Sonepath District fo development of Industrial Sector-28. In the facts and circumstances of the said case, certain observations were made regarding massive acquisition of agricultural lands for the purpose of industry. Observations made therein were particular to the facts of the said case and no law was laid down to the effect that no agricultural property should be acquired for rehabilitation purpose. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>42. As already noticed, subject acquisition and the purpose sought to be achieved therefrom has to be seen in the overall circumstances of ongoing project of implementation of various phases of UKP and rehabilitation of displaced persons as a part of integral development of Bagalkot town. In that view of the matter, this contention of Sri. Ashok Haranahalli also does not assist him. We are not satisfied that merely because the properties acquired are agricultural in nature, there is no “public purpose” sought to be sub-served or that there was otherwise fraud on power or colourable  exercise  of  power  which  alone  provide  us  an occasion to interdict the acquisition. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Accordingly, the appeals are devoid of merits and they are dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd54cf8ff799e5a618e50369c9df65676.jpeg', 'd9c81ea89b276f4c8f76d8ee8aacbcc6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-22', 1, '', '', '2022-07-21 17:26:19', '2022-07-22 14:32:07'),
(1982, 'ysGWMbEYYTcNT7kJHCPSJ4KCa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Courts cannot don the hat of a town planner or that of an Accountant to minutely examine a lesser extent of land would have fulfilled the objective or whether the project could have been implemented satisfactorily at another location. Karnataka High Court', '<p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>Gopal Govind Karjol and others Vs The State of Karnataka and others.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><b style=\"color: rgb(34, 34, 34); font-family: mainFontOP; font-size: 1rem;\">Writ Appeal 100139 of 2022 decided on 20 July 2022.</b></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>Justice Krishna S. Dixit and Justice P. Krishna Bhat.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><br></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>2. Under the impugned notifications, about 1275 acres of lands were acquired in Muchakandi &amp; Bagalakote villages of Bagalkot District for the purpose of implementing Unit-III of Upper Krishna Project (for short “UKP“). It is stated that ever since 1985, lands were being acquired for implementing UKP which was for the avowed “Public Purpose” of irrigating large tracts of land in various districts of North Karnataka extending upto Yadagiri.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><br></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>3. There is no dispute about the fact that an award dated 30.12.2010 was passed by the Krishna Water Dispute Tribunal–II permitting the increase of height of Dam from 523 mtrs to 525 mtrs which in its wake would have submerged large extents of lands in Bagalkot. The impugned notifications were issued for establishing township in order to rehabilitate and resettle people who were going to be displaced on account of such submergence.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><br></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>5. On the first question, by taking note of the relevant dates and the provisions of the Land Acquisition Act, 1894 (for short, ‘Act’), the learned Single Judge recorded a finding in the negative. The discussions in this behalf are at paragraphs 29 to 43 of the impugned judgment. The correctness of the said finding has not been seriously contested before us by the learned Senior Counsel Sri. Ashok Haranahalli, appearing for the appellants. In any case, the relevant dates noticed by the learned Single Judge having not been disputed before us, we are satisfied that no other conclusion on the said point for consideration in the facts of the case is possible.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><br></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>10. As we have already noticed, under the impugned notifications, large extent of lands has been acquired for rehabilitation of people displaced on account of implementing Unit-III of UKP. There is no dispute about the fact that the said project was meant to be implemented in various stages in order to quench the needs of large tracts of parched lands which the experts assessed as arable with scientific irrigation. There is also no dispute that a Dam has been built several decades ago benefiting tens and thousands of hectares of land in various districts of North-Karnataka region and the comprehensive plan envisaged implementation of what was called as “Unit-III”. There was also a subsequent development sometime in 2010 by which State Government was permitted to utilize more volumes of water (303 TMC) for satisfying its local needs arising in the adjoining districts of Dam area. Therefore, there was also an urgent need to utilize the benefits emanating from the award passed by the Krishna Water Dispute Tribunal-II to promote public weal.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>22. To sum-up, when a measure taken by the Government is for implementing a Mega Infrastructural Project pursuant to a policy framed embedded with the opinion of experts, Court should refrain from acting like a super-accountant and interference with the same should be extremely rare where it is inevitable. It is primarily the task of the Government to govern and in the guise of judicial review, Courts should not seek to run the governments. Smelling foul-play in the action of the government at a mere whiff of suggestion would make running the administration an impossibility and elected governments which are accountable to the people will be hamstrung in implementing projects for promoting public weal. Where two options are possible, it is not for the Court to act as an expert and substitute its own view for the view of the executive. In matters of such nature, an appeal is essentially to the ballot and not to the Courts. Courts do not have the expertise nor the political mandate for deciding the comparative merits of two options. It is relevant to notice that in Ramniklal even goes to the extent of suggesting that moulding the relief in a suitable manner should be the preferred choice with the Court rather than striking down the acquisition.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><br></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>25. The Hon’ble Supreme Court has further struck a note of caution that though the Courts are generally not entitled to go behind the declaration of the Government to the effect that the acquisition is for “public purpose”, an exercise of judicial review is permissible where power of acquisition is exercised in a colourable manner or if it is a fraud on power.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>35. We have carefully perused the above observations of the learned Single Judge and we are in respectful agreement with the proposition of law stated by him. Perusal of the statement of objections filed by the petitioners before the competent authority raising various objections to the acquisition shows that they are extremely bald and general in nature and lacking in specificity, and incapable of being dealt with by the competent authority. As in N. Somashekar, so in these cases while the petitioners have taken the contention that other non-agricultural suitable lands are available, they have given no particulars thereof for being considered by the competent authority. Insofar as the need, the suitability and advantages arising from acquisition of subject lands notwithstanding they being agricultural lands for the purpose of rehabilitating project displaced persons on account of submergence is concerned, that essentially is a matter of policy and therefore, so long as the acquisition itself is not shown to be violative of provisions of the Act or essentially in colourable exercise of power, it cannot be frowned upon for lack of detailed consideration of the same in the 5-A report. That, the project proposal was backed up by vision document of considerable vintage and further subject acquisition is supported by report from Experts is demonstrated before the Court by producing the same. It is also evident that this vision document and the opinion of the experts were prepared long anterior to the subject&nbsp; acquisition&nbsp; and&nbsp; they&nbsp; are&nbsp; not&nbsp; the&nbsp; outcome&nbsp; of&nbsp; the subsequent efforts by the State to justify and substantiate what has already been done by it. In view of the same, we have no hesitation in rejecting the contention of Sri. Ashok Haranahalli in this behalf.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>37. We notice that the document relied by the learned Senior Counsel to support his contention is the vision document prepared before the acquisition of 4544 acres during 1985-86 showing the extent of land required for implementation of each of the project namely Unit-I, Unit-II and Unit-III. The subject acquisition is for implementing Unit-III of the Project.&nbsp; However, learned Senior Counsel does not dispute the fact that the legality of the earlier acquisition is not in challenge now and that the lands required for the implementation of Unit-III is simply not available as of now except a measly extent of slightly more than 100 acres which is much less than the land required for the execution of the current project and therefore, the existence of the “public purpose” for the subject acquisition to meet the current needs cannot be gainsaid. And what are the reasons advanced by the learned Senior Counsel to demonstrate&nbsp; his&nbsp; legal&nbsp; contention&nbsp; that&nbsp; on&nbsp; account&nbsp; of, according to him, the State frittering away the lands earlier acquired, again according to him, by utilizing the lands so acquired for unauthorized purposes, foul-play should be smelled regarding the present acquisition also so as to conclude that there is demonstrable lack of public purpose? It needs to be noticed that he seeks to substantiate his contention by pointing out that the lands acquired during 1985-86 were allotted to Karnataka Industrial Areas Development Board; for establishing various other public institutions; and also for establishing Agri-techno-park etc.. It was also suggested during submission that some parcels of lands earlier acquired found their way through to the hands of some private parties which had a characteristic of “shady deals”. We agree with the submission of learned Senior Counsel Sri. M.R. Naik that this last submission is not supported by any specific pleading before the learned Single Judge thereby depriving the respondents of an opportunity of meeting them and rightly, as a result thereof, was not dealt with by the learned Single Judge as well. In that view of the matter, it is not prudent on our part to go into the factual merits of the said contention. However, in light of limitations on exercise of judicial review in matters of this nature as adumbrated by the Hon’ble Supreme Court in various decisions referred to supra, it needs to be observed with reference to the objections of this nature taken by the learned Senior Counsel for the appellants both in regard to the past acquisition as a ground to doubt the bonafides of the current one emanating from the alleged mis-utilization of the lands so acquired and concerning the subject acquisition as to the possible mis-utilization of the extent of lands acquired in comparison with the alleged need to sub-serve the purpose of rehabilitation of the displaced persons, we only need to be guided by the sage advice of Chief Justice Neely39 that our intervention is called for in this jurisdiction only when violation of the constitutional right of a citizen is demonstrated or as cautioned in Somawanti40, only when colourable&nbsp; exercise of power or fraud on power is demonstrated. We are not satisfied that the learned Senior Counsel could make out any such case before us.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>40. After hearing the elaborate submissions of both sides, we are completely satisfied that the subject acquisition has to be seen as in fulfillment of the requirement of execution of ongoing project of rehabilitating the project displaced&nbsp; families&nbsp; as&nbsp; part&nbsp; of&nbsp; integral&nbsp; development&nbsp; of Bagalkot Town under BTDA which, perforce, should fulfill overlapping requirements and overlapping objectives. In that view of the matter, the purpose being demonstrably one to promote public welfare, we are not in a position to agree with the contention of the learned Senior Counsel that there is no public purpose in the acquisition. We cannot don the hat of a town planner or that of an Accountant to minutely examine whether a slightly lesser extent of land would have fulfilled the objective or whether the project could have been implemented satisfactorily at another location. Such an exercise by us would tantamount to substituting our views to that of the State which has the advantage of expert advice. There is absolutely no material to support the contention that the acquisition is colourable exercise of power and therefore, illegal. Once that is not demonstrated, no case is made out for our interference under the writ jurisdiction. As held in Ramaniklal N Bhutta quashing of acquisition of lands made for a project of such public importance as in the current&nbsp; one&nbsp; should&nbsp; be a rare one and only&nbsp; when&nbsp; it&nbsp; is inevitable. We are not satisfied that this is not one such instance where such a case is made out.&nbsp; There may be some error here or some minor infractions there, but then in any human endeavour, infractions and violations of minor nature are inevitable; but, we are conscious that it is not for us to do nit picking and smell foul-play at mere whiff of a suggestion.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>41. Learned Senior Counsel Sri. Ashok Haranahalli contended that the acquisition of large extent of fertile agricultural lands for rehabilitation purpose amounts to depriving livelihood of affected parties including the present appellants and the same has been frowned upon by the Hon’ble Supreme Court. In this behalf, he invited our attention to the decision of the Hon’ble Supreme Court in Raghbir Singh Sehrawat Vs. State of Haryana &amp; Others. We have carefully perused the said decision rendered by a two-judge bench of the Hon’ble Supreme Court. The Hon’ble Supreme Court in the said case was considering 4(1) notification dated 22.06.2022 issued by the Government of Haryana for acquisition of 3183 Kanals 17 marlas (476 acres 5 kanals 17 marlas) in Sonepath District fo development of Industrial Sector-28. In the facts and circumstances of the said case, certain observations were made regarding massive acquisition of agricultural lands for the purpose of industry. Observations made therein were particular to the facts of the said case and no law was laid down to the effect that no agricultural property should be acquired for rehabilitation purpose.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><br></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>42. As already noticed, subject acquisition and the purpose sought to be achieved therefrom has to be seen in the overall circumstances of ongoing project of implementation of various phases of UKP and rehabilitation of displaced persons as a part of integral development of Bagalkot town. In that view of the matter, this contention of Sri. Ashok Haranahalli also does not assist him. We are not satisfied that merely because the properties acquired are agricultural in nature, there is no “public purpose” sought to be sub-served or that there was otherwise fraud on power or colourable&nbsp; exercise&nbsp; of&nbsp; power&nbsp; which&nbsp; alone&nbsp; provide&nbsp; us&nbsp; an occasion to interdict the acquisition.</b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><br></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"text-align: left; margin: 0cm; line-height: 20px;\"><font color=\"#222222\" face=\"mainFontOP\"><b>Accordingly, the appeals are devoid of merits and they are dismissed.</b></font></p>', 'deba8b8de810fb6af5df5cd846a43e7e.jpg', 'fd40daa50f3bac710a86c86fc042398e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-22', 1, '', '', '2022-07-22 14:41:36', '2022-07-22 14:41:36');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1978, 'mDSRCm9R2Pj3fUsGKh5KtuP7R', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Substantial question of law under Section  260A of the Income Tax Act need not necessarily be a question of law of general importance. Karnataka High Court explains the meaning and scope of Section 260A. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Commissioner of Income Tax and others Vs M/S Ennoble Construction.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Income Tax Appeal 383 of 2016 decided on 20 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit and Justice P. Krishna Bhat.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This appeal by the Revenue seeks to lay a challenge to the order dated 27.11.2015 made by the Income Tax Appellate Tribunal, ‘B’ Bench, Bangalore (hereinafter ‘ITAT’), whereby the statutory appeal of the Assessee in ITA No.449/BANG/2014 having been favoured the addition made by the Assessment Officer on account of transport creditors, is set at naught, and to that extent the Assessee has been relieved of tax liability.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a) The Assessee, a partnership firm was engaged in the business of construction & transport operations during the relevant period. It had filed IT Return for the Assessment Year 2009-10 claiming an expenditure of Rupees 70,68,28,574/- allegedly paid to ‘Transport Creditors’. During the course of Scrutiny Assessment Proceedings, the Assessment Officer (hereinafter ‘AO’) had asked the Assessee to furnish details of Transport Creditors to whom the payment was made. The Assessee expressed his inability to produce any documents contending that his entire business office having been raided all books files, registers, etc have been seized by the CBI. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b) The AO rejected the explanation offered by the Assessee as above observing that for the Assessment Year 2008 – 2009, a similar addition was made based on the declaration of excessive trade liability by the Assessee which worked out to 8.39% and therefore, the same should be taken as the ratio for the Assessment Year in question as well; on that basis, he worked out the sum at Rupees 5,89,49,503/- and added it to the income of the Assessee, for the purpose of levy. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(c) The Assessee had called in question the said addition in the subject appeal inter alia contending that unless the books of accounts were rejected under Section 145 of the 1961 Act, the AO acting under Section 143(3) could not have made the ad hoc disallowance; the fact that for the Assessment Year 2008 – 09 some addition was made under the said head, cannot be the sole basis for making such an addition for the subsequent Assessment Year, each assessment being an independent compact. He also pleaded about CBI raid & seizure of all documents, not even a piece of paper being in his custody or power.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(d) The ITAT substantially upheld the version of Assessee and granted relief by setting aside the addition made by the AO. Aggrieved thereby, the Revenue has preferred this appeal under the provisions of the 260A of the 1961 Act with the substantial questions of law hereinabove mentioned.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>III. Having heard the learned counsel for the parties and having perused the appeal paper–book, we decline indulgence in the matter for the following reasons: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>A.<span style=\"white-space:pre\">	</span>THE RIGHT OF APPEAL U/S 260A; ITS SCOPE & CONTENT: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) The Kerala High Court in CIT vs. WOONDUR JUPITAR CHITS (P) LIMITED had pointed out that the provisions of 1961 Act providing for reference on a question of law arising out of an order of the Tribunal were ‘Archaic’ and therefore there was an eminent need for rationalisation of the same. Accordingly, the Parliament vide Finance (2) Act, 1998 inserted inter alia Sections 260A & 260B in Chapter – XX of the 1961 Act to provide for an appeal against the orders of Tribunal directly to the High Court, within whose jurisdiction, Office of the AO is situate Appeal lies only if the case involves a substantial question of law, which the memorandum of appeal, ideally speaking, has to precisely state. However, if the High Court is satisfied that a substantial question of law is otherwise involved, it may itself formulate such question and admit the appeal. Appeal shall be ordinarily heard on the question so formulated. However, there is nothing, in the Act which would abridge the power of Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, in addition to or substitution of the one framed in the appeal memo, if it is satisfied that the case involves such other question.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) The appeal, be it of the Revenue or the Assessee, lies only “… if the High Court is satisfied that the case involves a substantial question of law …” Sub-Section (7) of Section 260A states that the provisions of Code of Civil Procedure, 1908 relating to appeals to the High Court, as far as may be, apply to these appeals. This Section is analogous to Section 100 of CPC. Noticeably, both these Sections i.e., Section 260A of 1961 Act and Section 100 of CPC do not define the expression ‘substantial question of law’. The Apex Court vide SANTOSH HAZARI vs. PURUSHOTTAM is of the view that the word ‘substantial’ qualifies the term ‘question of law’; it means a question having substance, essential, real, of sound worth, important or considerable. The substantial question of law on which an appeal shall be heard need not necessarily be a question of law of general importance. To be ‘substantial’, a question of law must be debatable and it must have a material bearing on the decision of the case in the sense that if answered either way insofar as the rights of the parties are concerned.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>B.<span style=\"white-space:pre\">	</span>AS TO SUBSTANTIAL QUESTION OF LAW IN THIS CASE:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) The AO appears to have proceeded on the premise that the payment made towards transport has not been established by producing the evidentiary material. What he failed to see that the business premises of the assessee having been admittedly raided by the CBI, all books of accounts, registers & files were not in his custody or power. The question of failing to produce evidence would have arisen only if the assessee with due diligence could produce some evidence that was in his custody or power and still failed to, sans any plausible explanation therefor; in a case where, he is disabled from producing any such evidentiary material because of raid & seizure by the statutory body like CBI, no blame can be laid at his door step. There is another related aspect touching the duty of the AO, which we would advert to, a bit later.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv) The question on which the appeal is admitted involves, in the first place, the ascertainment of facts as to the business expenditure in question, and in the second, the application of the correct principle of law to the fact so ascertained. Therefore, essentially such a question is only a mixed question of fact & law as observed by the Apex Court in COMMISSIONER OF INCOME TAX vs. GREAVES COTTON. Therefore, we are not sure if the Revenue could maintain this appeal on the subject question. Added, there is a certain difference between an ordinary question of law on the one hand and a mixed question of fact & law, on the other vide JANARDHANA RAO vs. JCIT Ordinarily, to answer a question of law of the kind, there is no need to consult the statute book; such a question can be answered just by turning the pages of evidentiary record of the Assessment Proceedings concerned. Therefore, the said question is miles away from the precincts of Section 260A which employs the expression ‘substantial question of law’. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>C.<span style=\"white-space: pre;\">	</span>AS TO BURDEN OF PROOF AND IMPOSSIBILITY OF ITS DISCHARGE:<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) As already mentioned above, the burden of proving the expenditure incurred ‘wholly and exclusively’ for the purpose of business, is on the Assessee. This burden needs to be discharged by the preponderance of probability. What should be the quantum & quality of evidentiary material to discharge such a burden is a matter lieing in the discretion of AO and that the said discretion, as any, has to be exercised in accordance with the rules of reason & justice. It was the specific case of Assessee that his business premises having been raided, the CBI had seized & taken into custody all the registers, files, record & documents concerning the business in question and therefore he was disabled from producing any material to prove the payment towards transport credit. The factum of CBI raid & seizure are not in dispute. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) Section 131 of the 1961 Act vests powers of Civil Court in the AO inter alia for compelling the production of books of account & other documents; for this purpose the section, in so, many words equates  him  with  the  Civil  Court.  The  arguable enormity of this power can be seen in the observations of a learned Single Judge of this Court in SAI RAMAKRISHNA KATURIA vs. UNION OF INDIA that it avails even against a Consular Head of a foreign country who otherwise enjoys diplomatic immunity under the Diplomatic Relations (Vienna Convention) Act, 1962. Exercising the powers of a Civil Court under the provisions of O. XIII of CPC, the AO can send for the books of accounts & documents that are seized (by a Magistrate) in other proceedings vide UNION OF INDIA vs. STATE. Courts have held that this power is coupled with a public duty, to call for the Assessee’s books of accounts which are in the custody of a public authority vide EMC vs. INCOME TAX OFFICER. There is absolutely no explanation as to why the AO did not choose to invoke this provision in the fitness of things. Nothing prevented him from summoning the books of accounts/documents or at least copies thereof from the custody of CBI. The AO having not done his duty, could not have recorded a finding that the claim of Assessee as to transport expenditure was not substantiated. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii) There is yet another aspect, which merits a bit deliberation. The books of accounts & documents being in the exclusive custody of the CBI Police, the Assessee except pleading this could not have done anything beyond. Arguably, in a sense, the case of Assessee was one of lack of evidence for proving the expenditure. Absence of evidence at hands is not the evidence of absence. If the Assessee fails to produce cogent evidence to prove the entirety of the claim, it is the duty of the AO to assess the allowable part of the expenditure to the best of his judgment vide CIT vs. S.P. NAIK<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In the above circumstances, this Appeal being devoid of merits, is liable to be rejected and accordingly it is, costs having been made easy.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1cc03f8d939da4f343ea9479391c4e69.jpeg', 'dffbffe1f37b3a5481b9462f1ca7cb60.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-23', 1, '', '', '2022-07-21 17:40:30', '2022-07-23 12:26:04'),
(1979, 'UuMNTUrB5ZsSTXC7DE2t82tMz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When correction of arbitration award is sought, limitation to challenge award commences from the date on which request for correction of award has been disposed of by arbitrator and not from the date of the original award. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S M.B. Patil Constructions Ltd Vs The Executive Engineer PWP and IWTD Division and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. 223253 of 2020 decided on15 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2. Brief facts of the case that would be relevant for the purpose of disposal of these writ petitions are, the petitioner herein was awarded four different contracts pursuant to the tender notification published by respondent no.1 and agreements were also executed by respondent no.1 in favour of the petitioner for the project - \'Improvements to Basavakalyan-Raichur Road\' from KM 67 to 99.80 in Chittapur of Gulbarga District. Since there were certain disputes between the parties arising out of the contract, petitioner had approached this Court in CMP Nos.20005- 20009/2014 which was disposed of by this Court on 19.01.2015 appointing respondent no.2 as the Sole Arbitrator.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The learned Arbitrator had thereafter entered appearance and pursuant to the notices issued by him, parties have filed claim petition, statement of objections and also counter claim. The learned Arbitrator partly allowed the claim petition vide his common award dated 30.10.2018 and as against the said common award, respondent no.1 herein had filed four separate arbitration suits before the Principal District & Sessions Judge, Kalaburagi (hereinafter referred to as \'the Commercial Court\') under Section 34 of the Arbitration and Conciliation Act, 1996 (for short, \'the Act of 1996\'). Along with the suit, respondent no.1 had also filed an application under Section 5 of the Limitation Act for condonation of delay, if any, caused in filing the arbitration suit. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. The learned Judge of the Commercial Court vide the impugned order dated 30.01.2020 has allowed the said applications and the delay caused in filing the arbitration suit was condoned. Being aggrieved by the same, the petitioner is before this Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Sri Ameet Kumar Deshpande, learned Senior Counsel appearing for the petitioner submits that the arbitration suits under Section 34 of the Act of 1996 were filed by respondent no.1 before the Commercial Court beyond the period of limitation and the Commercial Court has got jurisdiction to condone the delay only as provided under Section 34(3) of the Act of 1996. He submits that the arbitration suit is required to be filed within three months from the date the applicant has received the copy of the award and the Commercial Court can condone a maximum of 30 days delay thereafter, and if the delay is more than that, the same cannot be condoned. He submits that in the case on hand, the delay is much more than 30 days after expiry of three months period and therefore, the Commercial Court could not have condoned the same. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">6. He submits that the application for correction of award is required to be filed within 30 days from the date of receipt of award as provided under Section 33 of the Act of 1996. In the case on hand, the award is passed on 30.10.2018 and the application is filed on 06.02.2019 which is much beyond the period provided under Section 33 of the Act of 1996. He submits that the learned arbitrator has no power to consider the application under Section 33 of the Act of 1996 if the same is filed after expiry of thirty days and therefore the order passed by him is a nullity and nonest in the eye of law. He submits that since the order under Section 33 of the Act of 1996 is passed without jurisdiction the limitation for filing application under Section 34(1) of the Act of 1996 commences from the date of receipt of award by applicant and not from the date the learned arbitrator has disposed of Section 33 application.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. The undisputed facts of the case are that the award was pronounced by the learned Arbitrator on 30.10.2018 and the copy of the award was handed over to the parties on the very same date. Request under Section 33 of the Act of 1996 was made on 06.02.2019 for correction of the CMP numbers in the award and the learned Arbitrator had allowed the said application and had issued a corrected copy of the award on 08.03.2019. Arbitration suit before the Commercial Court was filed under Section 34 of the Act of 1996 on 06.07.2019 and the application IA No.II was also filed along with the suit to condone the delay, if any, caused in filing the suit. The Commercial Court vide the order impugned has held that the limitation to file the application/suit under Section 34 of the Act of 1996 has commenced in this case from 08.03.2019 onwards in view of the order passed under Section 33 of the Act of 1996 by the learned arbitrator and has exercised its jurisdiction to condone the delay of thirty days caused beyond the limitation period of three months provided under Section 34(3) of the Act of 1996 and accordingly allowed IA No.II filed for condonation of the delay. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. The question that would arise for consideration in these petitions is –</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><i><font face=\"Calibri, sans-serif\"><b>\"Whether the Commercial Court was justified in holding that the period of limitation to file an application/suit under Section 34 of the Act of 1996 commences from the date of the order passed under Section 33 of the Act of 1996 having regard to the facts and circumstances of the present case ?</b></font></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><i><font face=\"Calibri, sans-serif\"><b><br></b></font></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12. Chapter VII of the Arbitration and Conciliation Act of 1996 provides for recourse against arbitral award. Section 34(1) of the Act of 1996 provides that recourse to a Court against the arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">13. Sub-section (2) of Section 34 of the Act of 1996 provides the ground on which the arbitral award may be set-aside by the Court and sub-section 3 of Section 34 of the Act of 1996 provides for the period of limitation for filing an application under Section 34 of the Act of 1996.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><i><font face=\"Calibri, sans-serif\"><b><br></b></font></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>15. The limitation prescribed under Section 34(3) of the Act of 1996 for filing an application challenging the arbitral award is three months from the date on which the party making application has received the copy of award and the proviso to Section 34(3) of the Act of 1996 provides that if the Court is satisfied that the applicant was prevented by sufficient cause from making an application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. Therefore, it is clear that the Court before which, an application is filed under Section 34 of the Act of 1996 can entertain the application by condoning the delay of a maximum period of thirty days after expiry of three months period provided for filing the application and said Court has no power to condone any further delay beyond thirty days. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>16. Reading of Section 34(3) of the Act of 1996 also makes it clear that if a request has been made under Section 33 of the Act of 1996 then the period of limitation is required to be considered from the date on which the request has been disposed of by the Arbitral Tribunal.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\" style=\"font-style: italic;\"><br></font>18. From a reading of Section 33 of the Act of 1996, it is clear that an application for correction of any computation errors, clerical or typographical errors or any other errors of similar nature occurred in the award is required to be made within thirty days from the date of receipt of arbitral award, unless another period of time as agreed upon by the parties and the application under this provision is required to be made with notice to the other party. In view of Section 33(7) of the Act of 1996 any correction or interpretation under Section 33 of the Act of 1996 made to the arbitral award, will form part of the original award.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>23. In the case of D.M.Jawhar Merican vs Engineers India Limited3, the Delhi High Court was considering the question whether a party is entitled for extension of limitation under Section 34(3) of the Act of 1996, if the application filed under Section 33 of the Act of 1996, does not in fact constitute an application under Section 33 of the Act of 1996. In the said case an application was filed under Section 33 of the Act of 1996 contending that he was entitled for higher amount of compensation than that was awarded by the learned Arbitrator<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>24. In D.M.Jawhar Merican\'s case (supra) the Delhi High Court having found that the application under Section 33 of the Act of 1996 was not for correction of any typographical and clerical errors but for modification on the merits of the case had held that the starting point of limitation for filing application under Section 34 of the Act of 1996 was from the date of receipt of copy of the award by the applicant and has further held that even if the starting point of limitation would have been taken from the date of the order passed under Section 33 of the Act of 1996, even then the application under Section 34 of the Act of 1996 was not filed within the period of limitation as provided under Section 34(3) of the Act of 1996 and therefore the High Court of Delhi has held that the Court trying the application under Section 34 of the Act of 1996 cannot entertain such an application which is filed beyond the period of thirty days after expiry of three months period from the date of award.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>28. In the present case though the application under Section 33 of the Act of 1996 was filed by the respondent herein after expiry of period of thirty days from the date of award, the Tribunal has entertained the same and carried out necessary typographical errors in the body of the award. It is not in dispute the correction made is with regard to the typographical error in mentioning the CMP numbers and this correction would enure to the benefit of all the parties to the award and though the respondent has filed the application before the Commercial Court under Section 34 of the Act of 1996 contending that the period of limitation starts from the date of the order passed under Section 33 of the Act of 1996, the petitioner herein has not challenged the said order passed under Section 33 of the Act of 1996 by the learned Arbitrator.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b> 29. Admittedly, the application/suit under Section 34 of the Act of 1996 was filed before the Commercial Court on 06.07.2019 and the order impugned has been passed on 30.01.2020. During the intervening period no challenge has been made by the petitioner to the order passed under Section 33 of the Act of 1996 and therefore it has to be presumed that it has impliedly agreed for such an order which also enures to its benefit and admittedly the petitioner has filed execution proceedings before the Commercial Court mentioning the corrected CMP numbers.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>31. From the reading of the various judgments referred to herein above, it is clear that-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b> a)<span style=\"white-space:pre\">	</span>The period of limitation for filing an application under Section 34 of the Act of 1996 commences from the date the applicant receives the copy of the arbitral award and the period of limitation provided under Section 34(3) of the Act of 1996 is three months from the date of the award;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(b)<span style=\"white-space:pre\">	</span>The Court before whom the application under Section 34 is filed, can condone the further delay of thirty days beyond the period of three months, if the applicant shows that it was prevented by sufficient cause from making application within the said period of three months but the court has no power to condone the delay beyond thirty days having regard to the word used in the proviso to Section 34(3) of the Act, `but not thereafter\'.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(c)<span style=\"white-space:pre\">	</span>If a request is made under Section 33 of the Act, 1996 before the Tribunal, then the limitation under Section 34(3) for filing an application under Section 34 would commence from the date on which such request has been disposed of by the arbitral Tribunal/arbitrator.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>34. Even in the present case, though the respondents herein had disclosed before the Commercial Court at the time of filing the application under Section 34 of the Act of 1996 about the order dated 08.03.2019 passed by the learned Arbitrator under Section 33 of the Act of 1996, till date no steps have been taken by the petitioner herein to challenge the said order. Section 34(3) of the Act 1996 specifically states that if any order is passed under Section 33 of the Act, 1996 by the learned Arbitrator then the period of limitation commences from the date of the said order for filing an application under Section 34(1) of the Act of 1996. Therefore, if the petitioner had any grievance as against the order passed by learned arbitrator under Section 33 of the Act of 1996 it ought to have challenged the same before the appropriate forum. In the absence of any such challenge and having regard to the fact that the petitioner has filed an execution petition with the corrected CMP numbers, it virtually amounts to an acquiescence and implied agreement for the order passed by the learned Arbitrator under Section 33 of the Act of 1996. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">35. It is a settled principle of law that if a party has any grievance against any order passed by a Competent Authority or Court, the said order is required to be challenged before an appropriate forum in the manner known to law and if the same is not done, party would be bound by such an order. If the order is passed illegally or without following the procedure provided under law the said order cannot be brushed aside or ignored by the party who is adversely affected by the same. An illegal or irregular order passed without compliance of the procedure of law cannot be termed as an order passed without jurisdiction, and therefore not binding on the parties.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>37. A plain reading of Section 33 of the Act of 1996 makes it clear that the learned arbitrator has jurisdiction to receive an application/request from a party to the award to correct computation, clerical and typographical errors and thereafter pass appropriate orders as provided under the said provision of law. If the Court which has jurisdiction fails to correctly exercise the same while passing an order, such order cannot be considered as one without jurisdiction. The existence of jurisdiction does not depend on the correctness of its exercise. The application under Section 33 of the Act of 1996 is filed before the learned arbitrator who has passed the award and therefore it cannot be said that he had no jurisdiction to receive it for consideration. If that is so, he also has jurisdiction to entertain the same.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>39. The order passed under Section 33 of the Act of 1996 in the present case cannot be said to be one without jurisdiction on the face of the record because, though Section 33 of the Act of 1996 provides for a period of thirty days to file an application for correction of the award on computation, clerical or typographical errors etc., if the parties are agreeable the said period can be extended. In the case on hand, admittedly after the order was passed by the learned Arbitrator under Section 33 of the Act of 1996 the petitioner has not challenged the same. Though it has stated that it had no notice of the proceedings before the learned Arbitrator under Section 33 of the Act of 1996 , even after the order was brought to its notice by the respondents at the time of filing the application under Section 34 of the Act of 1996 before the Commercial Act, the petitioner has not taken any steps to challenge the said order. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>40. The learned arbitrator undoubtedly has jurisdiction to entertain an application under Section 33 of the Act of 1996, and if he has passed an illegal or erroneous order it cannot be said that the same is without jurisdiction and if that is so, then in view of the judgment of the Hon\'ble Supreme Court in the case of Rafique Bibi (supra) the petitioner is required to challenge the order passed by the learned Arbitrator under Section 33 of the Act of 1996 before the competent forum. Unless the petitioner successfully challenges the said order passed by the learned Arbitrator under Section 33 of the Act of 1996 it is not open for it to raise a contention in the proceedings under Section 34 of the Act of 1996 that the limitation for filing an application under Section 34 of the Act of 1996 should be taken into consideration from the original date of award and not from the date of the order passed under Section 33 of the Act of 1996. Undisputedly the learned arbitrator has allowed the application made under Section 33 of the Act of 1996 and consequently the error in the award has been corrected and therefore the correction made becomes the part of original award.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>42. In the case on hand, the original award was passed on 30.10.2018, the application under Section 33 of the Act of 1996 was filed on 06.02.2019 and the order under Section 33 of the Act of 1996 was passed by the learned Arbitrator on 08.03.2009. If the limitation for filing application under Section 34 of the Act of 1996 before the Commercial Court is taken into consideration from the date of the order passed by the learned Arbitrator under Section 33 of the Act of 1996, the period of three months should be calculated from 09.03.2019 and the same would expire on 08.06.2019. The period of thirty days under the proviso to Section 34(3) of the Act of 1996 is required to be calculated from 09.03.2019 and it would expire on 08.07.2019. The application under Section 34 of the Act of 1996 was filed before the Commercial Court on 06.07.2019 and therefore the said application is within the period of limitation as provided under Section 34(3) of the Act of 1996 and the Commercial Court in its discretion has exercised its power under Section 34(3) of the Act of 1996 and has condoned the delay in filing the application which was beyond the period of three months from the date of order passed under Section 33 of the Act of 1996, but was within the thirty days after the expiry of the three months period. This order passed by a Commercial Court having regard to the facts and circumstances of this case cannot be therefore held to be bad in law and accordingly, I answer the question for consideration in the affirmative. Under the circumstances, I do not find any good ground to interfere with the order\'s passed by the Commercial Court, which are impugned in these writ petitions. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Accordingly, the writ petitions are dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f1c950031b3ccdd54f874acf4498f65c.jpeg', '7a0708e524ed93d6e16f7222069666b5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-22', 1, '', '', '2022-07-21 18:16:39', '2022-07-22 19:20:25');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1980, 'ws3z2HGEekG2nXnKDiEGBbtwx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration. At the stage of deciding Section 11 application, the Court may prima facie consider even the aspect with regard to ‘accord and satisfaction’ of the claims. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Indian Oil Corporation Limited Vs NCC Limited<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 341 of 2022 decided o. 20 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. Feeling aggrieved and dissatisfied with the impugned judgment and orders passed by the High Court of Delhi, New Delhi in respect to Arbitration Petitions by which, in exercise of powers under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “Arbitration Act”), the High Court has allowed the said petitions and has appointed the learned Arbitrator by referring the dispute between the parties for arbitration, the Indian Oil Corporation Limited has preferred the present appeals.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. The facts leading to the present appeal in a nut­shell are as under:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4.1. That, the appellant, Indian Oil Corporation Limited (hereinafter referred to as “IOCL”) floated a tender in respect of the works described as “Civil, Structural & Associated UG piping works of VGOHDT, DHDT & HCDS Units (EPCM­2) for Paradip Refinery Project”. The respondent herein – NCC Ltd. (hereinafter referred to as “NCCL”) was declared the successful bidder. After issuance of the Letter of Acceptance dated 17.03.2010, a formal agreement was executed between the parties dated 28.04.2010.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">4.2. As per the contract entered into between the parties, the designated date for commencement of the project was the date of issuance of FOA i.e. 03.03.2010, and that the scheduled date of completion was 02.10.2011. It appears that the execution of the project was delayed, as a result of which the project was completed only on 28.12.2015. The NCCL was issued a completion certificate by the IOCL indicating the date of completion of the project as 28.12.2015. In view of the delay in completion of the project beyond the scheduled date, the NCCL made a request for extension of time vide the communication dated 23.05.2016. While the EOT requests were pending with the IOCL, the NCCL submitted its final bill dated 05.08.2016 to the Engineer­In­Charge appointed under the contract between the parties.  </font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">According to the NCCL, the NCCL in its final bill dated 05.08.2016 made a specific reference to the Notified Claims. There were correspondences between the Engineer­In­Charge and Thyssenkrupp Industrial Solutions India (P) Ltd. (hereinafter referred to as “TKIS”) pending settlement of the final bill and the request for Extension of Time (EOT). The NCCL responded to the communication dated 01.11.2016 by the TKIS, vide its response dated 02.11.2016. It appears that the NCCL conveyed to TKIS that if its request for EOT were considered favorably and if price adjustment does not exceed 4%, then, all its extra/additional claims including Notified Claims submitted by it through various communications and the final bill should be treated as withdrawn.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4.3. The TKIS having received the aforesaid communication from the NCCL, made its recommendations vis­à­vis the request for EOT made by the NCCL. It appears that thereafter, TKIS in its communication dated 13.01.2017, informed NCCL that it had approved EOT for the period between 03.10.2011 to 03.11.2015, however, without price discount as per Clause 4.4.0.0 of the General Conditions of Contract (hereinafter referred to as “GCC”) and that for the period falling between 04.11.2015 to 28.12.2015 which covered the period of 55 days, it had concluded that the delay was attributable to NCCL. Accordingly, TKIS conveyed to NCCL that for the later period, as per Clause 4.4.2.0 of the GCC, a price adjustment discount of 4% would be applicable.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4.4. It is the case on behalf of NCCL that being aggrieved, it wrote to the IOCL on 23.01.2017 to reconsider its decision and accord EOT upto the date of completion i.e. 28.12.2015 without making any adjustment towards price as indicated in the communication dated 13.01.2017. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4.6. It appears that subsequently and after a period of 6&1/2 months (after the settlement of the claim) and after receiving the final bill payment 8 days earlier, on 08.05.2017, vide communication dated 16.05.2017, NCCL reneged on the letter of 02.11.2016 and alleged that it was made to withdraw its claim under coercion and it had withdrawn its Notified Claims as TKIS vide its communication dated 01.11.2016, had indicated</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.1 By the impugned orders the High Court in exercise of powers under Section 11(6) of the Arbitration Act has appointed the Arbitrators to adjudicate and resolve the disputes between the parties arising out of the respective contracts. The respective orders passed by the High Court appointing the Arbitrator in applications under Section 11(6) of the Arbitration Act are the subject matter of present appeals. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.3 In the case of Narbheram Power & Steel (P) Ltd. (supra), it is observed and held that the parties are bound by the Clauses enumerated in the policy and the Court does not transplant any equity to the same by rewriting a clause. It is further observed and held that an arbitration clause is required to be strictly construed. Any expression in the clause must unequivocally express the intent of arbitration. It can also lay the postulate in which situations the arbitration clause cannot be given effect to. It is further observed that if a clause stipulates that under certain circumstances there can be no arbitration and they are demonstrably clear then the controversy pertaining to appointment of Arbitrator has to be put to rest (Paras 10­23). </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.4 In the case of Centrotrade Minerals & Metal Inc. (supra), this Court had an occasion to consider the concept of party autonomy and it is observed and held that party autonomy is virtually the backbone of arbitration. It is further observed and held that party autonomy being the brooding and guiding spirit in arbitration, the parties are free to agree on the application of three different laws governing their entire contract – (1) proper law of contract; (2) proper law of arbitration agreement and (3) proper law of the conduct of arbitration. It is further observed in the said decision that the parties to an arbitration agreement have the autonomy to decide not only on the procedural law to be followed but also the substantive law. The choice of jurisdiction is also left to the contracting parties. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.10 On the question, who decides on non­arbitrability of the dispute, after referring to and considering the earlier decisions on the point, more particularly, the decisions in the case of Garware Wall Ropes Ltd. (supra); Hyundai Engg. & Construction Co. Ltd. (supra) and Narbheram Power & Steel (P) Ltd. (supra), it is observed and held that the question of nonarbitrability relating to the inquiry, whether the dispute was governed by the arbitration clause, can be examined by the Courts at the reference stage itself and may not be left unanswered, to be examined and decided by the Arbitral Tribunal. Thereafter, in para 153, it is observed and held that the expression, “existence of arbitration agreement” in Section 11 of the Arbitration Act, would include aspect of validity of an arbitration agreement, albeit the Court at the reference stage would apply the prima facie test. It is further observed that in cases of debatable and disputable facts and, good reasonably arguable case etc., the Court would force the parties to abide by the arbitration Agreement as the Arbitral Tribunal has the primary jurisdiction and authority to decide the disputes including the question of jurisdiction and non­arbitrability</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12. It is the case on behalf of the petitioner IOCL that the IOCL had settled the claim of respondent – NCCL accepting NCCL’s offer to grant extension of time; not to give price adjustment of over 4% of the total contract value and consequently IOCL condoned the delay of 1493 days and granted extension of time without applying any price discount. Further for the delay of 65 days, IOCL applied the price discount of Rs.6,44,40,021 i.e. 4% of the total value of contract and thereafter IOCL released the payment of Rs.4,53,04,021/­ against NCCL’s final bill (adjusting price discount of Rs.6.4 Crores as against Rs.14.8 Crores) and also returned NCCL’s Bank Guarantee which came to be fully accepted by the respondent NCCL. It is the case of IOCL that thereafter, it was not open for the respondent to raise any further claim. Therefore, it is the case on behalf of the petitioner that, there being ‘accord and satisfaction’ for the claim, being an ‘excepted claim’, it was not open for the respondent to invoke the arbitration agreement and request for appointment of an Arbitrator. It is also the case on behalf of the petitioner IOCL that in view of the specific decisions by the General Manager, on “Notified Claims”, in view of Clause 9.0.2.0, for the same claims which are not held to be ‘Notified Claims’ by the General Manager, the matter cannot be referred to the Arbitrator in view of the clause pertaining to excluded matters. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>On the other hand, it is the case on behalf of the respondent that acceptance of the amount of Rs.4,53,04,021/­ was under duress and coercion. It is also the case on behalf of the respondent that earlier offer dated 02.11.2016 was a conditional one and was in the nature of an offer and subsequently when the offer was partially allowed, the respondent without any delay communicated that the decision to partially allow its application for EOT is unacceptable as the same is not in accordance with the conditional offer given by the respondent.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13. Having heard learned Counsel appearing for the respective parties and in the facts and circumstances of the case, the issue / aspect with regard to ‘accord and satisfaction’ of claims is seriously disputed and is debatable. Whether, in view of the acceptance of Rs.4,53,04,021/­ by the respondent NCCL which was released by IOCL on the offer / letter made by the respondent NCCL dated 02.11.2016 there is an instance of ‘accord and satisfaction’ of the claims is a good and reasonably arguable case. It cannot be said to be an open and shut case. Therefore, even when it is observed and held that such an aspect with regard to ‘accord and satisfaction’ of the claims may/can be considered by the Court at the stage of deciding Section 11 application, it is always advisable and appropriate that in cases of debatable and disputable facts, good reasonably arguable case, the same should be left to the Arbitral Tribunal. Similar view is expressed by this Court in the case of Vidya Drolia (supra). Therefore, in the facts and circumstances of the case, though it is specifically observed and held that aspects with regard to ‘accord and satisfaction’ of the claims can be considered by the Court at the stage of deciding Section 11(6) application, in the facts and circumstances of the case, the High Court has not committed any error in observing that aspects with regard to ‘accord and satisfaction’ of the claims or where there is a serious dispute will have to be left to the Arbitral Tribunal. However, at the same time, we do not agree with the conclusion arrived at by the High Court that after the insertion of Sub­Section (6­A) in Section 11 of the Arbitration Act, scope of inquiry by the Court in Section 11 petition is confined only to ascertain as to whether or not a binding arbitration agreement exists qua the parties before it, which is relatable to the disputes at hand. We are of the opinion that though the Arbitral Tribunal may have jurisdiction and authority to decide the disputes including the question of jurisdiction and non­arbitrability, the same can also be considered by the Court at the stage of deciding Section 11 application if the facts are very clear and glaring and in view of the specific clauses in the agreement binding between the parties, whether the dispute is non­arbitrable and/or it falls within the excepted clause. Even at the stage of deciding Section 11 application, the Court may prima facie consider even the aspect with regard to ‘accord and satisfaction’ of the claims. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.3 As observed hereinabove, parties to the contract are free to agree on applicability of (1) proper law of contract, (2) proper law of arbitration agreement and (3) proper law of the conduct of arbitration. Parties to the contract also may agree for matters excluded from the purview of arbitration. As observed by this Court in a catena of decisions, unless the effect of agreement results in performance of an unlawful act, an agreement, which is otherwise legal, cannot be held to be void and is binding between the parties. At this stage, the decision of this Court in the case of Sreekanth Transport (supra) is required to be referred to. In the case before this Court, the contract provided for exclusion of some matters from the purview of arbitration. A senior officer of the department was given the authority and power to adjudicate the same. One of the clauses provided that the decision of the Senior Officer, being the Adjudicator, shall be final and binding between the parties. This Court considered the same as ‘excepted matters</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.4 In that view of the matter, the High Court has misread and misinterpreted the clauses 9.0.1.0 and 9.0.2.0 and has seriously erred in holding that where there is contestation or the decision rendered by the General Manager leaves scope for argument as to whether the claims alleged by the contractor can be categorized as Notified Claim is best left to the Arbitral Tribunal. The dispute whether the claim is a Notified Claim or not is specifically excluded from the scope, purview and ambit of the arbitration agreement. Therefore, once such a dispute falls within the ‘excepted matters’, any decision by the General Manager on the issue of Notified Claims cannot be the subject matter of arbitration proceeding. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.5 Therefore, the High Court has erred in referring the dispute to arbitration and appointing a sole Arbitrator to adjudicate on the dispute with respect to the claims which as such are held to be not Notified Claims by the General Manager. Therefore, the Civil Appeal No.342/2022 arising out of SLP (C) No.13408/2019 as well as Civil Appeal Nos.343/2022 and 345/2022 arising out of SLP (C) Nos.13813/2019 and 13816/2019 respectively deserve to be allowed and the impugned judgment and orders passed by the High Court in respective arbitration petitions deserve to be quashed and set aside. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.6 So far as the Civil Appeal No.344/2022 arising out of SLP (C) No.13815/2019 arising out of the impugned judgment and order passed by the High Court in Arbitration Petition No.407/2018 is concerned, as the General Manager himself has declared that only one claim of the respondent was / is a Notified Claim, the said appeal is to be allowed partly by observing that the claim which is declared by the General Manager as a Notified Claim only shall have to be referred to arbitration and the learned Arbitrator shall have no jurisdiction to adjudicate the disputes with respect to other claims which as such are not declared as Notified Claims by the General Manager. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>In the facts and circumstances of the case, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">there shall be no order as to costs.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a046da1c3fdfdb9b22ffe741cb2b5623.jpeg', '842f7a0b221ec115c8faf874b98e61bb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-23', 1, '', '', '2022-07-21 19:08:00', '2022-07-23 09:26:04'),
(1981, 'a5qoTsGYUQj7iAJLLCTx32o4P', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Police officers have no powers to suspend a driving licence since such powers are given only to Licensing Authority under the  Motor Vehicles Act, 1988. Calcutta High Court  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Priyasha Bhattacharyya Vs The State of West Bengal and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P.A 14318 of 2022 decided on 19 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Moushumi Bhattacharya.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner prays for quashing of an order dated\r\n20.5.2022 passed by the Assistant Commissioner of\r\nPolice, Traffic Department, Kolkata. By the impugned\r\norder, the Driving Licence of the petitioner was suspended\r\nfor 90 days from the date of interception. The petitioner\r\nprayed for release of the Driving Licence by a mail of\r\n21.5.2022 by which the petitioner also attached copies of\r\nproof of payment of the penalty.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The documents on record show that the petitioner’s\r\ncar was intercepted on 19.5.2022 while the petitioner was\r\ndriving from South City Mall to her residence in New\r\nAlipore. The petitioner’s car was intercepted by the Traffic\r\nSergeant (respondent no. 6) at the Southern Avenue-Lake\r\nGardens interception. The photograph of the car with the\r\nregistration number gives the particulars of violation and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">shows that the petitioner was driving at a speed of 62.1\r\nkm/hr whereas the speed limit on the particular road was\r\n30 km/hr.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Learned counsel appearing for the petitioner and\r\nthe State have made their arguments on the legality of the\r\naction of the police to suspend the Driving Licence of the\r\npetitioner based on the relevant provisions of The Motor\r\nVehicles Act, 1988 and the Notification issued by the\r\nTransport Department of the Government of West Bengal.\r\nCounsel appearing for the petitioner also places an order\r\nof a Coordinate Bench dated 4.7.2019 in WP No.11780(W)\r\nof 2019 where, on similar facts, the Court gave interim\r\nrelief to the petitioner. Counsel also relies on a judgment\r\nof the Delhi High Court reported in AIR 2016 Delhi 162 in\r\nsupport of the contention that the police does not have\r\nthe authority to suspend a driving licence.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">Section 2(20) of the Motor Vehicles Act, 1988\r\ndefines a “licensing authority” to mean an authority\r\nempowered to issue licences under Chapter II or Chapter\r\nIII, as the case may be. Chapter II deals with licensing of\r\ndrivers of motor vehicles and Chapter III deals with\r\nlicensing of conductors of stage carriages. Chapter II is\r\nrelevant for the present proceeding. Section 3 of the Act\r\ndebars a person from driving a motor vehicle in any\r\npublic place unless the person holds an effective driving\r\nlicence issued for the purpose of authorising the person t</span><span style=\"font-size: 12pt;\">o drive the vehicle. Section 19 entitles the licensing\r\nauthority to disqualify from holding a driving licence or\r\nrevoking a driving licence. Section 19 lists 8 conditions (ah) for disqualification or revocation of licence upon\r\nsatisfaction of the licensing authority and after giving the\r\nholder of the driving licence an opportunity of being\r\nheard. The order passed by the licensing authority must\r\nalso contain reasons and be given in writing. Section\r\n19(1A) which was brought into effect from 2019 provides\r\nfor a situation where a licence has been forwarded to the\r\nlicensing authority under section 206(4) whereupon the\r\nlicensing authority may either discharge the holder of a\r\ndriving licence or disqualify such person from holding or\r\nobtaining any licence after giving him an opportunity of\r\nbeing heard.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Chapter VIII provides for limits of speed in relation to\r\ncontrol of traffic. Section 112 empowers the State\r\nGovernment to issue appropriate notifications for\r\nrestricting the speed of motor vehicles in the interest of\r\npublic safety and for fixing maximum or minimum speed\r\nlimits as it may think fit. Section 206 empowers a police\r\nofficer to impound document. Sub-section (4) of section\r\n206 empowers the police officer to seize the driving\r\nlicence held by the driver if the officer has reason to\r\nbelieve that the driver of a motor vehicle has committed\r\nan offence under section 183, 184 and other sections </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">mentioned in 206(4). Sections 183 and 184 relate to\r\ndriving at excessive speed and driving dangerously\r\nrespectively. The police officer shall then forward the\r\nseized licence to the licensing authority for\r\ndisqualification or revocation under section 19. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The above provisions of the Motor Vehicles Act,\r\n1988 show that only a licensing authority can disqualify a\r\nperson from holding or obtaining a driving licence or\r\nrevoke such licence [19(1)(i) and (ii)]. The order of\r\ndisqualification may also be given by the licensing\r\nauthority under 19(1A) of the Act. Licensing authority has\r\nbeen defined in section 2(20) and does not include any\r\nauthority other than an authority empowered to issue\r\nlicences. Section 206 refers to the power of the licensing\r\nauthority to disqualify or revoke under section 19 and\r\nlimits the power of a police officer to impound a\r\ndocument; this is by restricting the power of the police\r\nonly to seize the driving licence and forward it to the\r\nlicensing authority for disqualification or revocation\r\nunder section 19. The Notification dated 23.11.2016\r\nrelied upon by the State empowers the Deputy\r\nCommissioner of Police (Traffic) and Superintendent of\r\nPolice of the Districts to act in terms of section 19 for\r\ndisqualifying offending drivers or revoking their licences if\r\nit is found necessary for the purpose of ensuring effective\r\ncontrol of traffic under Chapter VIII of the Act. This </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Notification also finds mention in the order of the Deputy\r\nCommissioner of Police, Traffic dated 15.12.2016.\r\nAlthough, this Notification refers to section 19 of the Act,\r\nthere is no evidence whether the relevant provisions of the\r\nWest Bengal Motor Vehicles Rules, 1989 have been\r\namended to reflect the authorization given to the Police.\r\nThe Notification in fact mentions that the Rules will be\r\nsuitably amended in due course.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Since the Motor Vehicles Act gives the power, in no\r\nuncertain terms, to the licensing authority and limits the\r\npower of the police to disqualify a person or revoke his\r\nlicence under the Act, this Court is of the view that a later\r\nNotification issued by the State Transport Department\r\ncannot override the provisions of the parent Act. This is\r\nparticularly so where the effect of the subsequent\r\nNotification alters and modifies the power of the licensing\r\nauthority under the Act, particularly under sections 19\r\nand 206 thereof. The directions given to the State / U.Ts\r\nby the Supreme Court Committee on Road Safety dated\r\n18.08.2015 is by way of a recommendation and for the\r\nobject of road safety. The communication does not seek to\r\nalter the provisions of the Motor Vehicles Act. Notification\r\nunder a provision of any statute must be in aid of and in\r\nsync with the statutory scheme. The Notification in the\r\npresent case results in confusion as to the licenceimpounding powers of the authority mentioned in the Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Although relief has been given to the petitioner in\r\nthe present case strictly on the basis of the relevant\r\nstatutory provisions, this Court is however of the view\r\nthat the reason given in paragraph 3 of the writ petition\r\nfor violating the speed-limit of the road trivializes the\r\nissue of road safety. The petitioner has admitted to overspeeding and has also come before this Court almost after\r\n2 months from the date of the impugned order. The\r\nexcuse for over speeding is no ground at all since the\r\npetitioner should have a sufficient eco-system in place\r\nand not become a risk to other travelers on the road</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WPA No. 14318 of 2022 is disposed of with the\r\nabove directions and observations. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '649b1e006aa42fafe16200226a35fd77.jpg', '8e4802e333a722ae792a7b902ccef6a3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-23', 1, '', '', '2022-07-21 20:03:54', '2022-07-23 06:27:02'),
(1983, 'XUTa3lwcoAkb2owbO8TCznbAz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'In respect of lands notified prior to 1 January 2014 under the KIAD Act, if awards were not passed as on that date, awards are required to be passed only under the 2013 Act. Karnataka High Court. ', '<p><b>S. Sheenappa and others vs The State of Karnataka and others<br>Writ Petition 108802 of 2016 and connected matters decided on 18 July 2022.<br>Justice N.S.Sanjay Gowda</b></p><p><b><br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1. On 05.02.2010, the State Government issued a notification under Section 28(1) of the Karnataka Industrial Area Development Act, 1966 (hereinafter referred to as “KIAD Act”) giving notice of its intention to acquire about 5368-83 acres for the benefit of M/s. Arcelor Mittal India Company Limited, a private limited company.</b><b><br></b></p><p><b>2. After hearing the land owners, the State Government proceeded to pass an order for acquiring the said lands.</b></p><p><b>7. The petitioners, basically, demanded payment of compensation in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, “the 2013 Act”) as is evident by Annexure-C to W.P.Nos.107748- 50/2014.</b></p><p><b>8. The Karnataka Industrial Areas Development Board (for short, “the Board”), however, refused the claim of the petitioners for determination of compensation under the provisions of the 2013 Act by issuing an endorsement dated 07.05.2014 as per Annexure-D. Therefore, one set of petitioners approached this Court by way of a writ petition, in W.P.Nos.107748-50/2014.</b></p><p><b>12. The principal contention advanced by all the petitioners in these batch of writ petitions is that, notwithstanding the fact that the notifications issued under Section 28(1) & 28(4) of the KIAD Act had been issued prior to the enactment of the 2013 Act, since awards were not passed till 01.01.2014, by virtue of the repeal of the 1894 Act and the enactment of the 2013 Act, compensation was required to be determined under the provisions of the 2013 Act as envisaged under Section 24(1) of the 2013 Act.</b></p><p><b>14. It is contended that Section 30 of the KIAD Act was a piece of legislation by reference and not a legislation by incorporation, and therefore, all subsequent amendments, and reenactments of the 1894 Act would have to be applied and the provisions of the 1894 Act could not survive on its repeal and reenactment of the 2013 Act and the 2013 Act would have to be made applicable to determine the award amount under the KIAD Act.</b></p><p><b>19. Thus, from the above contentions, the principal question that is required to be decided in these writ petitions is:</b></p><p><b>“Whether in respect of lands notified prior to 01.01.2014 under the KIAD Act, in respect of which an award had not been passed as on 01.01.2014, awards are required to be passed under the 1894 Act or the 2013 Act as envisaged in Section 24 (1) of the 2013 Act?”</b></p><p><b>23.<span style=\"white-space:pre\">	</span>In essence, the KIAD Act is designed to ensure that industrial areas are established by the Board by acquiring lands, developing them into an industrial area and allotting premises either by sale or by lease-cum-sale to persons and entities and thereby ensuring the orderly establishment and development of industries in the State.</b></p><p><b>26.<span style=\"white-space:pre\">	</span>Section 28 of the KIAD Act, which provides for acquisition of land, states that whenever Government forms an opinion that any land is required for the purpose of development by the Board or any other purposes to further the objects of the Act, the State is obliged to issue a notification and notify its intention to acquire lands. The State is thereafter required to serve notice on the landowners to show cause as to why their lands should not be acquired and on considering the cause shown by the land owners or the interested persons and after giving them an opportunity of being heard, the State is required to pass such orders, as it deems fit.</b></p><p><b>30.<span style=\"white-space:pre\">	</span>Under the 1894 Act, lands which have been notified for acquisition and declared to be needed for the public purpose would stand vested in the State Government free from all encumbrances only on taking possession of the land (under Section 16 of the 1894 Act) after an award is passed (under Section 11 of the 1894 Act).</b></p><p><b>32.<span style=\"white-space:pre\">	</span>Thus, from the reading of Section 28 of the KIAD Act, it is clear that the notified lands stand vested with the State on a declaration being published in the gazette and the State is also empowered to take possession of the land and transfer it to the Board even before the compensation is determined and paid to the land owner.</b></p><p><b>37.<span style=\"white-space:pre\">	</span>The admitted factual position, in this case, is that though the declaration under Section 28(4) of the KIAD Act was issued on 04.05.2010, in respect of petitioners herein, the compensation was admittedly neither determined by agreement nor was an award made by the Deputy Commissioner till 01.01.2014. Thus, though a declaration had been issued in 2010 and the land stood vested in 2010 itself, the compensation was not paid to the petitioners, either by way of an agreement or by way of an award made by the Deputy Commissioner under the provisions of the 1894 Act.</b></p><p><b>40.<span style=\"white-space:pre\">	</span>The question that is raised in this case is, on and after 01.01.2014, whether an award could be passed under the 1894 Act, despite its repeal or whether the award is to be passed under the reenacted statute i.e., the 2013 Act. This controversy, in the present case, has arisen because of the intervening legislative event i.e., the repeal of the 1894 Act and the coming into force of the 2013 Act.</b></p><p><b>45.<span style=\"white-space:pre\">	</span>Section 6 of the GC Act deals with the effect of repeal of the Act. It states that the repeal of an Act would not in any way affect anything that had been done under the repealed Act. In other words, the repeal of an enactment would not result in invalidating or rendering ineffective anything done under the repealed Act, unless a different intention is made known while repealing the Act.</b></p><p><b>59.<span style=\"white-space:pre\">	</span>In other words, on the 1894 Act being repealed and the 2013 Act coming into force, any reference to the provisions of the 1894 Act in Section 30 of the KIAD Act, would have to be necessarily construed as a reference to the provisions relating to enquiry and award in the 2013 Act, by virtue of the rule of construction envisaged under Section 8 of the GC Act.</b></p><p><b>60.<span style=\"white-space:pre\">	</span>Thus, on the coming into force of the 2013 Act, whenever an award is required to be passed in respect of a land notified under the provisions of the KIAD Act, by the mandate of Section 8 of the GC Act, an award can be passed only under the provisions relating to the passing of an award under the 2013 Act and an award cannot be passed in accordance with the repealed provisions relating to award in the 1894 Act.</b></p><p><b>72.<span style=\"white-space:pre\">	</span>In my view, this contention is without any merit. In the aforementioned cases, upon which strong reliance has been placed, it is to be stated here that the Apex Court, as well as this Court, were dealing with the contention that acquisition proceedings would lapse, if an award had not been passed within the time stipulated under Section 11A of the 1894 Act or by the situation contemplated under Section 24(2) of the 2013 Act. Both the Apex Court as well as this Court were not dealing with a situation contemplated under Section 24 (1) (a) of the 2013 Act i.e., where an award had been passed as on 01.01.2014 or with a situation contemplated under Section 24 (1) (b) of the 2013 Act i.e., where an award had not passed as on 01.01.2014.</b></p><p><b>80.<span style=\"white-space:pre\">	</span>If, on the other hand, an award is not passed as on the date of the commencement of the 2013 Act, i.e., 01.01.2014, by virtue of the mandate of Section 24 (1) (a) of the Act, the award would have to be passed as provided under the more beneficial provisions of the 2013 Act. Thus, in both the scenarios prescribed in Section 24 (1) of the 2013 Act, the question of lapsing would not arise at all.</b></p><p><b>95.<span style=\"white-space:pre\">	</span>The controversy, as stated above, has arisen only because of the 1894 Act being replaced by the 2013 Act. Admittedly, the KIAD Act only refers to certain aspects of the 1894 Act which are to be applied for acquisition under the KIAD Act. The reference made in Section 30 of the KIAD Act is a general reference relating to enquiry and award, reference to Court, apportionment and payment of compensation, etc and no specific provisions of the 1894 Act is specified in Section 30 of the KIAD Act. It will, therefore, have to be held that Section 30 of KIAD Act, whereby certain provisions of the 1894 Act are made applicable would only be a case of legislation by reference and not a legislation by incorporation.</b></p><p><b>122.<span style=\"white-space:pre\">	</span>As a result, it is hereby held that in respect of lands notified prior to 01.01.2014 under the KIAD Act and in respect of which, an award has not been passed as on 01.01.2014, the awards are required to be passed under Section 24 (1) (a) of the 2013 Act only.</b></p><p><b>123.<span style=\"white-space:pre\">	</span>The question framed in these petitions are accordingly answered</b></p><p><b>124.<span style=\"white-space:pre\">	</span>The awards, if any, passed under the 1894 Act are hereby declared to be void and shall not be acted upon. If, however, the petitioners have withdrawn any sums deposited pursuant to the awards passed under the 1894 Act, the amounts withdrawn by them shall be adjusted as against the award that is required to be passed under the 2013 Act as ordered above.</b></p><p><b>125.<span style=\"white-space:pre\">	</span>Accordingly, the writ petitions are allowed. The impugned endorsements by which the Board had stated that awards will have to be made only under the 1894 Act are quashed and the Board shall now pass an award in respect of lands which are the subject matter of these writ petitions as provided under the 2013 Act.</b></p><div><br></div>', 'c489d0840bdffd55be4a7d79a2bff7af.jpg', '272661927286d891c853d0853943bc0a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-22', 1, '', '', '2022-07-22 15:52:19', '2022-07-22 16:09:03');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1984, 'dcje4BfRHhnQXqCEbr8pKokg6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When a cross objection is not maintainable independently, then there is no question of maintaining two separate order sheets as per Rule 155 of the Civil Rules of Practice. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shivananjegowda Vs R. Muralidhar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 50709 of 2019 decided on 15 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sachin Shankar Magadum.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The facts leading to the case are as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The present petitioner is the appellant in R.A.No.10035/2015. The present petitioner instituted a suit for specific performance of contract by alleging that the respondent/defendant has executed an agreement to sell on 01.02.2004 in respect of Sy.No.57 measuring 4 acres and Sy.No.157 measuring 4 acres. The present petitioner alleged that respondent/defendant while executing suit agreements have jointly received a sum of Rs.1,00,000/- i.e., Rs.50,000/-on each agreement with a condition that sale transaction would be completed within a period of six months. The suit is decreed in part. The Trial Court has declined to grant specific performance of contract and defendant is directed to repay the advance sale consideration amount of Rs.25,000/- along with 12% interest. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Against the dismissal of the suit insofar as main relief of specific performance of contract is concerned, the present petitioner has preferred an appeal in R.A.No.10035/2015. The respondent/defendant feeling aggrieved by the findings recorded by the Trial Court on issue No.1 and additional issue No.1 has preferred a cross appeal. The Appellate Court while entertaining the cross appeal has proceeded to condone the delay of 210 days in filing the cross appeal and the cross appeal is taken on record. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4. The present petitioner is questioning the order dated 11.10.2019 feeling aggrieved by the order passed on I.A.No.5 filed under Section 5 of the Limitation Act. The grievance of the petitioner before this Court is that there is a procedural error committed by the Appellate Court. The contention of the petitioner is that without registering the cross appeal and assigning a separate number, the appeal is entertained. The petitioner\'s contention before this Court is that a separate order sheet needs to be maintained insofar as cross appeal is concerned. Therefore, the petitioner contend that the Appellate Court had no jurisdiction to entertain the application under Section 5 of the Limitation Act without registering the cross appeal and therefore, it is contended that the order passed on I.A.No.5 filed under Section 5 of the Limitation Act is one without jurisdiction and therefore, the same is not maintainable.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. The petitioner has instituted a suit for specific performance of contract. The larger relief of specific performance of contract is declined by the Trial Court and the present petitioner has preferred appeal before the Appellate Court which is pending consideration in R.A.No.10035/2015. It is quite interesting to note that the petitioner has stated in unequivocal terms at para 17 of the writ petition wherein petitioner\'s claim that he has no objection to condone the delay in filing the cross appeal. However, interestingly petitioner is objecting the authority of the Appellate Court in entertaining cross appeal without registering the same and assigning a separate number. Reliance is placed on Rule 155 of the Rules</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. On perusal of the above said Rule, this Court would find that Rule 155 prescribes that the Courts entertaining appeals or suits are required to maintain order sheet in terms of Form No.14. The petitioners intend to place reliance on the above said Rule and contend that once cross appeal is filed, the concerned Registry of the Court has to register the said cross appeal separately and has to assign a separate number and consequently, maintain a separate order sheet pertaining to cross appeal. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">1</font></span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">0.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">The difference between an appeal and a cross appeal/cross objection depends upon who approaches first questioning the judgment and decree of the court of first instance.  It is the first party who approaches the Court is always referred as appellant and the respondent in the appeal who also intends to question the decision of the court below is always referred as respondent during the pendency of appeal and if the cross objection is filed, the same is referred as a cross appeal. The expression \"cross objection\" is not defined under the Code. Therefore, what can be inferred is that a cross objection can be filed only when there is an appeal. The stage of filing a cross objection arises only when appeal is admitted and court directs notice to be issued to the respondent. The appeal and cross objection should be heard together and they should be disposed of by a common judgment incorporating the decision on both appeal as well as cross objection. The Court is also required to decide and dispose of the appeal and cross objection together by one judgment and such a decision should be incorporated in one decree. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">11.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">If the judgment on appeal and cross objection has to be incorporated in one decree, then it presupposes that there is no need to maintain a separate order sheet. The word \"cross objection\" is neither defined in the Code nor in the Rules. This approach seeks to avoid a contradictory and inconsistent decisions on the same questions in one and the same suit. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">12.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">In the instant cross objection, the respondent/defendant intends to question the findings recorded by the Court below on issue No.1 and additional issue No.1. Rule 22(1) of Order 41 of CPC does enable the defendant who intends to support the decree may question the findings against him in the Court below in respect of any issue which has gone against him and by way of cross-appeal may question those findings. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">13.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">Rule 22 of Order 41 allows a respondent in an appeal to support the decree of the Court below by asserting that the points decided against him should have been decided in his favour and this recourse is available to the respondent even without filing cross objection. In the present case on hand, by way of cross objection, the respondent intends to question the finding on issue No.1 and additional issue No.1. The respondent in the present case do not have a right to file an appeal against the finding that was recorded against him, though the ultimate decree is in his favour. Therefore, it is only on an appeal filed by the opposite party questioning the decree, the respondent who has the benefit of decree is entitled to challenge the finding given in the judgment. Therefore, there is a distinction between an appeal against a decree and cross objection in an appeal questioning the findings of the Court below. Thus, right to file a cross objection when an appeal is already pending is entirely different from a party having right by itself to file an appeal against the decree.  When a cross objection is not maintainable independently, then there is no question of maintaining two separate order sheets. The cross objection questioning  the  finding, forms part and parcel of the appeal and therefore, the Appellate Court in such circumstances renders only one judgment and consequently, only one decree is drawn. It is in this background, the argument canvassed by the learned counsel for the petitioner cannot be acceded to. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">14.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">If these significant details are taken into consideration, then the contention of the petitioner that in terms of Rule 155 of the Rules, the Registry was required to maintain a separate order sheet is misconceived and cannot be acceded to. Rule 155 of the Rules contemplates that the order sheet in terms of Form No.14 has to be maintained in respect of each suit, appeal or other proceedings in all Courts. That does not include cross objection. The Appellate Court, on cross objection, has to render only one judgment and consequently has to draw one decree which necessarily presupposes that there is no need to maintain a separate order sheet and Rule 155 does not include cross appeals.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. ORDER: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The writ petition is dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '07dd11cebd3c212d45779a589bc8b906.JPG', 'c4d48564d7114897b57b8dbc1b9ccfe0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-23', 1, '', '', '2022-07-22 18:48:49', '2022-07-23 13:55:44');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1985, 'e7wFMn7MPpuQSEtRNfgeEjdUI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Supreme Court holds Khasgi (Devi Ahilyabai Holkar Charities) Trust, Indore as Public Trust under the Madhya Pradesh Public Trusts Act, 1951. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Khasgi Trust, Indore and another Vs Vipin Dhanaitkar and other.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4839 of 2022 decided on 21 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A.M. Khanwilkar, Justice Abhay S. Oka and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The controversy revolves around the properties claimed by\r\nthe Khasgi Trust as the Trust Properties. On 30th October 1948, an\r\ninstrument called as “The Covenant” was executed by the erstwhile\r\nRulers of Gwalior, Indore and certain other States in Central India </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for the formation of the United State of Gwalior, Indore and Malwa\r\n(Madhya Bharat). Late Yashwantrao Holkar, the Maharaja of\r\nIndore (for short “the Maharaja”) was a party to the said Covenant\r\nwho agreed to unite and integrate the territory of Indore into one\r\nState with a common executive, legislature and judiciary, by the\r\nname of the United State of Gwalior, Indore and Malwa (Madhya\r\nBharat). Article XII provided that the Ruler of each covenanting\r\nState shall be entitled to the full ownership, use and enjoyment of\r\nall private properties (as distinct from the State Properties)\r\nbelonging to them on the date of their making over the\r\nadministration of their respective States to Raj Pramukh (the Head\r\nof the State of the United State of Gwalior, Indore and Malwa).\r\nArticle XII further provided that the Ruler of each covenanting\r\nState shall furnish to Raj Pramukh, before the first day of August\r\n1948, an inventory of all immovable properties, securities and cash\r\nbalance held by him. The Convention further provided that if any\r\ndispute arises as to whether any item of property is a private\r\nproperty of the Ruler or a State Property, it shall be referred to such\r\nperson as the Government of India may nominate in consultation\r\nwith the Raj Pramukh. It is further provided that the decision of\r\nthat person shall be final and binding on all parties concerned. It </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appears that Maharaja Yashwantrao Holkar submitted two\r\ninventories in terms of Article XII. The first inventory was\r\nconcerning his alleged private properties. The second inventory\r\nsubmitted by the Maharaja was of the properties known as the\r\nKhasgi Properties. In terms of Clause (3) of Article XII, the\r\nGovernment of India appointed Shri V.P. Menon, the Secretary of\r\nthe Ministry of States as the authority to decide the claims. By the\r\nletter dated 7th May 1949, Shri V.P. Menon informed the Maharaja\r\nthat the claim made by him in respect of his private properties as\r\nlisted in Annexure ‘A’ to the said letter has been finally approved,\r\naccepted and signed in pursuance of Article XII of the Covenant.\r\nAnnexure ‘A’ contains a detailed description of the private\r\nproperties of the Maharaja, which are accepted as per Article XII of\r\nthe Covenant to be his private properties. By another letter dated\r\n6th May 1949, Shri V.P. Menon informed the Maharaja that his\r\nclaim in respect of the properties described as the Khasgi\r\nproperties has been finally settled on the basis of the enclosure to\r\nthe said letter. In the enclosure to the letter, it was mentioned that\r\nthe Khasgi properties and income received from the Khasgi\r\nproperties shall be treated as lapsed for all the time to the Madhya\r\nBharat Government. In lieu thereof, certain guarantees were given. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The enclosure provided that the Madhya Bharat Government shall\r\nin perpetuity set aside a sum of Rs.2,91,952/- (Rupees Two Lakh\r\nNinety-One Thousand Nine Hundred and Fifty-Two only) for the\r\ncharities. The amount shall be put under a permanent Trust for\r\nthe said charities, including the charities of Maharani Ahilya Bai\r\nHolkar. It provided that the Trust shall consist of the Ruler of\r\nerstwhile Indore State, who will be the President. There will be two\r\nnominees of the Ruler. One nominee shall be of the Central\r\nGovernment, and two nominees shall be of the Madhya Bharat\r\nGovernment. However, it was stated that the trustees nominated\r\nby the Government of India and the Madhya Bharat State shall be\r\nappointed in consultation with the Ruler. It provided that powers\r\nand functions of the Trust shall be subject to such legislation as\r\nthe Central Government or the Madhya Bharat Government may\r\nenact generally to regulate such Trusts. However, the composition\r\nof the Trust and the manner of its formation shall not be liable to\r\nany modification or change by such legislation.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. It must be noted here that the State Government enacted the\r\nMadhya Pradesh Public Trusts Act, 1951 (for short, ‘the Public\r\nTrusts Act’). On 26th May 1959, the Ministry of Home Affairs of the\r\nGovernment of India addressed a letter to the Maharaja, which <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">refers to the settlement of Khasgi Property. By the said letter, the\r\nCentral Government nominated one Shri S.V. Kanungo as its\r\nnominee. The letter records that Shri Kanungo was already a\r\ntrustee nominated by the Central Government on two other family\r\nTrusts of the Holkar family. Before that, on 6th January 1959, by\r\naddressing a letter, the General Administration Department of the\r\nState Government informed the Private Secretary to the Maharaja\r\nthat the State Government was proposing to nominate the\r\nCommissioner, Indore Division and the Superintending Engineer\r\n(B & R), Public Works Department, Indore Circle as the trustees.\r\nThe State Government requested the Secretary to the Maharaja to\r\ncommunicate the concurrence of the Maharaja to the said\r\nnominations. By another letter dated 1st April 1959, the General\r\nAdministration Department of Madhya Pradesh communicated to\r\nthe Secretary to the Maharaja requesting him that representatives\r\nof the Ruler on the Trust be nominated. The letter records that the\r\nState Government has prepared a draft of the Trust Deed which\r\nwill be finalised without any delay. The letter dated 14th November\r\n1959 of the State Government addressed to the Secretary of\r\nMaharaja which is by way of reminder to the Maharaja to nominate\r\nhis two representatives. The said letter also records that the draft </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the Khasgi Trust Deed will be finalised and sent for approval of\r\nthe Maharaja. The letter dated 14th April 1961 addressed by the\r\nState Government to the Secretary to Maharaja records that the\r\ndraft of the Deed of Khasgi Trust is under examination and will be\r\nsent soon. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. Ultimately, in terms of the draft provided by the State\r\nGovernment, the Deed of Trust of the Khasgi Trust (for short, “the\r\nTrust Deed”) was executed on 27th June 1962 by and between Her\r\nHighness Maharani Usha Devi of Indore, the daughter and\r\nsuccessor of Maharaja Yashwantrao Holkar, described therein as\r\nthe Settlor, Shri K.A. Chitale, Senior Advocate and Shri S.C.\r\nMalhotra as the nominees of the Settlor and Shri S.V. Kanungo,\r\nthe nominee of the President of India. The Trust Deed was also\r\nsigned by the Commissioner, Indore Division and Superintending\r\nEngineer (B & R), Public Works Department, Indore who were\r\nnominated as trustees by the State Government. In the recitals, it\r\nis mentioned that the Trust was being created of the annuity of\r\nRs.2,91,952/- in perpetuity for maintenance, upkeep and\r\npreservation of charities and religious endowments provided in the\r\nbudget of the Holkar State for the year 1947-48 inclusive of the\r\ncharities founded by Maharani Devi Ahilaya Bai Holkar. The said <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">endowments were described in part ‘A’ of the Schedule. Further,\r\nit is provided that the Trust will be for the management and\r\nmaintenance of the properties described as the Trust Properties,\r\nmore particularly described in Part ‘B’ of the Schedule to the Deed\r\nof Trust. Part ‘B’ of the Schedule contains a list of a large number\r\nof properties in various States.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. There was a notification issued by the State of Madhya\r\nPradesh on 27th July 1962. It was mentioned therein that on the\r\nformation of the Madhya Bharat State, institutions, factories,\r\nreligious places, chhatries, etc. fell under the supervision and\r\nmanagement of the Commissioner, Pardon Office. It was further\r\nstated in the notification that the State Government while granting\r\npermission for the formation of the Khasgi Trust and the Alampur\r\nTrust (the Holkar Chhatries Trust), has granted\r\nrecognition/approval to the transfer of the areas, and institutions\r\netc. included in the Trust Deeds of the aforesaid Trusts. It is\r\nfurther mentioned that accordingly, the areas, institutions,\r\nfactories, religious places, chhatries etc. were transferred to the\r\nrespective Trusts on 16th July 1962. A report of making over and\r\ntaking over charge of the properties described as the Alampur and\r\nKhasgi trust properties was recorded on 16th July 1962. For the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sake of completion, it must be mentioned here that on 8th March\r\n1972, a Supplementary Deed of Trust was executed by and\r\nbetween the Trustees for incorporating a clause that the Trustees\r\nhave always had and shall have the power to alienate not only the\r\nincome but any other item of the corpus of Trust Property for the\r\nnecessity or for the benefit to the objects of the Trusts.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. Alienations were made by the Trustees in relation to at least\r\nsix properties. On 18th April 2012, a letter was addressed by Smt.\r\nSumitra Mahajan, a Member of the Parliament to the Chief\r\nMinister of the Government of Madhya Pradesh. She contended in\r\nthe said letter that the property mentioned in the Trust Deed was\r\nvesting in the erstwhile State of Madhya Bharat. It is mentioned\r\nthat a valuable property shown in the Trust Deed at Haridwar was\r\nsold by the trustees without the permission of the Registrar under\r\nthe Public Trusts Act. Therefore, she requested the Chief Minister\r\nto order an inquiry. Along with the notice dated 23rd May 2012, a\r\ncopy of the said complaint was forwarded to the trustees of the\r\nKhasgi Trust by the Registrar of Public Trusts, District Indore. The\r\nTrustees replied on 20th June 2012 contending that the Public\r\nTrusts Act was not applicable to the Khasgi Trust and it is for the\r\nbenefit of the Trust that the alienations have been made. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Thereafter, the Collector of District Indore passed an order dated\r\n5th November 2012 holding that the properties mentioned in the\r\nTrust Deed were the properties of the State Government. He held\r\nthat the trustees have made illegal alienations without prior\r\npermission from the Government. Therefore, the alienations were\r\nheld to be invalid. Hence, the Collector directed that the name of\r\nthe State Government be entered in revenue records/land records\r\nto prevent further alienations.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. After considering the submissions made across the Bar,\r\nbroadly the following main questions arise for our consideration:-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\na. Whether the properties incorporated in Part ‘B’ of the\r\nSchedule to the Trust Deed are the properties of the Khasgi\r\nTrust?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\nb. Whether the Khasgi Trust is a Public Trust within the\r\nmeaning of the Madhya Pradesh Public Trusts Act, 1951\r\nand whether its provisions are applicable to the Trust?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>c. Whether the Supplementary Trust Deed dated 08th May\r\n1972 is legal and valid?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>d. Whether the Trustees of the Khasgi Trust were under an\r\nobligation to obtain the previous sanction of the Registrar\r\nin accordance with Section 14 of the Public Trusts Act,\r\n1951 for alienating the Trust property?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>e. Whether the Division Bench of the High Court was right in\r\nholding that the impugned order dated 5th November 2012\r\npassed by the Collector was lawful and correct? </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>f. Whether the High Court was justified in directing the\r\ninvestigation into the allegations of misappropriation\r\nagainst the Trustees by the Economic Offences Wing of the\r\nState Government? and</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>g. Whether the writ petitions filed by only one Trustee of the\r\nKhasgi Trust before the learned Single Judge were\r\nmaintainable? <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>THE STATUS OF THE PROPERTIES IN PART ‘B’ OF THE\r\nSCHEDULE TO THE TRUST DEED (Question – a)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. Perusal of the Trust Deed shows that 246 immovable\r\nproperties are listed in Part ‘B’ of its Schedule. In one of the recitals\r\nof the Trust Deed, the properties in Part ‘B’ have been described as\r\n“the Trust Properties”. It is necessary to consider the relevant\r\nprovisions of the Covenant to which the Maharaja is a party </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. It appears that the Maharaja made an inventory of all the\r\nimmovable properties, securities and cash balance held by him.\r\nThe Maharaja made claims in terms of clause (3) of Article XII. Shri\r\nV.P. Menon, the Secretary to the Government of India was\r\nnominated by the Government of India to make an adjudication on\r\nthe dispute in terms of clause (3) of Article XII. By the letter dated\r\n6th May 1949 addressed by Shri V.P. Menon, the Maharaja was\r\ninformed that the inventory of private properties of Maharaja\r\nsubmitted pursuant to Article XII has been approved and accepted.\r\nIt is mentioned in the said letter that Annexure ‘A’ contains a list\r\nof properties which are approved as private properties of the\r\nMaharaja. Annexure ‘A’ contains several properties. Admittedly,\r\nnone of these properties has been included in Part ‘B’ of Schedule\r\nto the Trust Deed. Shri V.P. Menon addressed another letter dated <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7th May 1949 to the Maharaja informing him that the claim\r\nsubmitted by him in respect of the Khasgi properties in the\r\ninventory has been also settled as per the enclosure to the said\r\nletter.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. Thus, the Government of India held that the Khasgi\r\nproperties and the income from Khasgi should be treated as lapsed\r\nfor all time to the Madhya Bharat Government. This shows that\r\nthe claim made by the Maharaja in respect of the Khasgi properties\r\nwas not accepted and that a decision was taken that the said\r\nproperties shall vest in the State Government. In lieu thereof,\r\ncertain guarantees were given by the Government of India, which\r\nincluded that an autonomous Trust would be created for the said\r\ncharities (the Khasgi properties and the charities of Maharani\r\nAhilyadevi Holkar). The Trust was to be headed by the Ruler of\r\nIndore as its President. Out of five other Trustees, two were to be\r\nthe nominees of the Ruler, two were to be the nominees of the State\r\nGovernment, and one was to be the nominee of the Government of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">India. The government nominees were to be appointed after\r\nconsultation with the Ruler. The powers and functions of the Trust\r\nwere made subject to the State or Central legislation, which may\r\nbe enacted in future. However, it was clarified that the legislation\r\nshall not change the manner of formation of the autonomous Trust\r\nand the composition of the Trust. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. Under the report dated 16th July 1962, Muafi Officer of the\r\nState Government handed over the possession of properties of the\r\nKhasgi Trust as well as of the Alampur Trust to the Secretary of\r\nthe Trusts. In terms of the handing over of the properties as\r\naforesaid, a notification was issued by the State Government on\r\n27th July 1962. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Thus, the properties described in Part ‘B’ of the schedule to the\r\nTrust Deed which were vested in the State Government were\r\ntransferred to the autonomous Khasgi Trust on its incorporation.\r\nIn fact, till 2012, the State Government never disputed that the\r\nKhasgi properties listed in Part ‘B’ of the Schedule to the Trust\r\nDeed were the Trust properties of the Khasgi Trust. Therefore, to\r\nthat extent, the Division Bench of the High Court is not right when\r\nit concluded that the properties incorporated in Part ‘B’ of the\r\nSchedule to the Trust Deed continue to be the Government\r\nproperties even after 16th July 1962. The said properties are\r\nvesting in the Khasgi Trust.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>APPLICABILITY OF THE PROVISIONS OF THE PUBLIC TRUSTS\r\nACT (Question – b)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>35. Coming back to the Trust Deed, the object of the Trust is to\r\nmaintain up-keep and preserve the Trust properties and the\r\ncharities as well as religious endowments. Part ‘A’ of Schedule to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Trust Deed contains details about the endowments to various\r\nplaces of religion, such as, temples, anna chattras, peersthans,\r\ndonations to dharmshalas and chhatris. Some of the properties in\r\nPart ‘B’ of the Schedule are temples and religious places. The trust\r\nwas created with the object of preservation and maintenance of the\r\nTrust properties which are charities and endowments. Thus, it can\r\nbe said that the Khasgi Trust, is an express Trust for public,\r\nreligious and charitable purposes. Under Section 4(1) of the Public\r\nTrusts Act, every such Trust requires compulsory registration. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>38. The order of the Registrar proceeds on the footing that even if\r\nClause (a) of Sub-Section (1) of Section 36 is applicable, Section 14\r\nof the Public Trusts Act will apply. Obviously, if Clause (a) is\r\nattracted, nothing contained in the Public Trusts Act shall apply to\r\nsuch a Trust, which will include Section 14 as well. The powers of\r\nthe Registrar under the Public Trusts Act are found in Chapter V.\r\nNone of the provisions of the Public Trusts Act confer any power on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Registrar to decide the question whether an exemption under\r\nClause (a) of Sub-Section (1) of Section 36 is applicable to a\r\nparticular public Trust. Therefore, we have independently\r\nexamined whether Clause (a) of sub-Section (1) of Section 36 will\r\nhave application. It is not the case that the Khasgi Trust is being\r\nadministered by any local authority as such. The question is\r\nwhether it is being administered by any agency acting under the\r\ncontrol of the State Government. There are six Trustees of the\r\nKhasgi Trust, out of which, one is the Ruler, who is the ex-officio\r\nPresident. Two Trustees are the nominees of the Ruler. The\r\nremaining three are the nominees of the State Government and\r\nCentral Government. Neither in the order of the Government of\r\nIndia dated 6th May 1949 nor in the Trust Deed, there is anything\r\nto indicate that the Khasgi Trust is administered by any agency\r\nacting under the control of the State Government. Even the power\r\nto nominate two Trustees vested in the State Government and\r\nsimilar power vested in the Central Government to nominate one\r\nTrustee has to be exercised in consultation with the Ruler. The\r\nthree Trustees nominated by the Government do not have a\r\nmajority in decision making. The State Government has no effective\r\ncontrol over the functioning of the Khasgi Trust. In one sense, it is </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">an autonomous public Trust. Therefore, on the face of it, Clause\r\n(a) of Sub-Section (1) of Section 36 has no application. The Khasgi\r\nTrust cannot claim to be covered under the excepted category in\r\nclause (a) of sub-section (1) of Section 36.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">39. We may note here that the High Court has proceeded on the\r\nerroneous footing that as there was no notification issued under\r\nsub-Section (2) of Section 36, Clause (a) of Sub-Section (1) of\r\nSection 36 will not apply. Sub-Sections (1) and (2) of Section 36\r\noperate in different fields. When sub-Section (1) is applicable to a\r\nPublic Trust, none of the provisions of the Public Trusts Act is\r\napplicable to the Trust. Sub-Section (2) is an independent power of\r\nthe State Government to issue a notification exempting certain\r\nPublic Trusts from all or any of the provisions of the Public Trusts\r\nAct. Thus, we have no manner of doubt that the Khasgi Trust will\r\nbe governed by the Public Trusts Act and that the same is required\r\nto be registered accordingly.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">VALIDITY OF THE SUPPLEMENTARY TRUST DEED (Question –\r\nc) AND OBLIGATION TO OBTAIN A PERMISSION UNDER\r\nSECTION 14 (Question – d)</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>41. The Trustees relied upon the Supplementary Trust Deed\r\ndated 08th March 1972 for contending that they are empowered to\r\nalienate trust property without taking recourse to Section 14 of the\r\nPublic Trusts Act. This document was not challenged in the\r\nproceedings before the High Court. But, the issue of legality thereof\r\nhas been gone into by the High Court. As noted earlier, the Khasgi\r\nTrust has been created on the basis of the adjudication made under\r\nclause (3) of Article XII of the Covenant. The Khasgi properties\r\nvested in the State Government by virtue of the said adjudication.\r\nHowever, the Khasgi properties were transferred to the Khasgi\r\nTrust on its establishment. Therefore, we have already held that\r\nthe Khasgi properties vested in the Khasgi Trust which is a public\r\nTrust under the Public Trusts Act. The Public Trusts Act itself\r\npermits the Trustees of a Public Trust to alienate the Trust Property\r\nsubject to constraints imposed by Section 14. Therefore, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Supplementary Trust Deed which enables the Trustees to alienate\r\nthe Trust Property cannot be illegal. However, alienation of the\r\nTrust property can be made only in accordance with Section 14.\r\nThe Trustees by executing such a document cannot overcome the\r\nmandate of Section 14. Therefore, the power to alienate under the\r\nSupplementary Trust Deed is subject to the constraints imposed\r\nby Section 14 of the Public Trusts Act. To that extent, the Division\r\nBench of the High Court was not right.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">42. Before we discuss Section 14 of the Public Trusts Act, even if\r\nwe assume that the exemption under Clause (a) of Sub-Section (1)\r\nof Section 36 was applicable to the Khasgi Trust, it must be noted\r\nthat the Trustees held the property in a fiduciary capacity for the\r\nbenefit of the beneficiaries, which in the present case are the\r\nmembers of the public as the Trust properties include a large\r\nnumber of temples, ghats, etc. The property of the Khasgi Trust\r\ncould not have been sold without following a fair and transparent\r\nprocess. The view consistently taken by this Court, as regards the\r\nalienation of public property, right from the case of Akhil Bhartiya\r\nUpbhokta Congress v. State of Madhya Pradesh and Ors.2, will\r\nsubstantially apply to the alienation of the property of a public </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Trust and therefore, the Trustees are bound to dispose of the Trust\r\nproperty only for the benefit of the Trust or its beneficiaries, and\r\nnot as a private venture. This can be achieved only by following a\r\nfair and transparent process. The process must be such that the\r\nTrust property fetches the best possible price. Only if alienations\r\nare made in such a manner, the same will be in the interests of the\r\nbeneficiaries.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>44. In the case of Parsi Zoroastrian Anjuman, Mhow1, a Coordinate Bench of this Court had an occasion to deal with the scope <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of Section 14. The Co-ordinate Bench compared Section 14 with a\r\nsimilar provision of Section 36 under the Maharashtra Public\r\nTrusts Act, 1950, putting an embargo on the powers of the Trustees\r\nof a Public Trust of alienating the trust property. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">This Court proceeded to permit the Trustees to alienate the Trust\r\nProperty, subject to fresh valuation of the property and subject to\r\nselling the property to the highest bidder through a public tender</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>45. Section 14 is applicable to immovable property of a Public\r\nTrust. Section 13 governs the investment of public trust money.\r\nThe State’s control of charities and religious endowments in some\r\nform is not foreign to our jurisprudence. A Public Trust invariably\r\ndepends on charity done by individuals by donating immovable\r\nproperty or by making cash donations. Though in law, the assets\r\nand properties of a Public Trust vest in its Trustees, they hold the\r\nTrust property in a fiduciary capacity for the benefit of the\r\nbeneficiaries of the Trust. They hold the property for giving effect to\r\nthe objects of the Public Trust. A Trust property cannot be alienated <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">unless it is for the benefit of the Trust and/or its beneficiaries. The\r\nTrustees are not expected to deal with the Trust property, as if it is\r\ntheir private property. It is the legal obligation of the Trustees to\r\nadminister the Trust and to give effect to the objects of the Trust.\r\nTherefore, the statutes dealing with the Public Trusts which are\r\noperating in various States, provide for limited control of the\r\nactivities of a Public Trust. The control is exercised by providing for\r\nthe submission of the annual accounts by the Trustees and filing\r\nof returns with the concerned charity organization or other\r\nauthority under the law. There are statutory constraints on the\r\npower of the Trustees to alienate the property of a Public Charitable\r\nTrust. There are provisions in such statutes for penalizing the\r\nTrustees for misappropriation of the property of the Trust. Many\r\nsuch Statutes empower the authorities under the Statutes to\r\nremove a Trustee of a Public Trust, on account of misbehaviour or\r\nacts of misappropriation, etc. The Trustees are the custodians of\r\nTrust properties. The Trustees have a duty to safeguard the\r\ninterests of the beneficiaries of the Public Trust. That is how, a\r\nprovision in Public Trust Law, like Section 14 of the Public Trusts\r\nAct, is of importance. This provision seeks to protect the Trust\r\nproperty in the hands of the Trustees from unwarranted </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">alienations. In the present case, the transactions of sale in favour\r\nof the appellant in Civil Appeal arising out of Special Leave Petition\r\n19063 of 2021, have been effected admittedly without obtaining\r\nprior permission under Section 14. The Division Bench of the High\r\nCourt has gone into the question whether the alienations were null\r\nand void. However, the purchasers were not parties to the\r\nproceedings before the High Court. Hence, final adjudication could\r\nnot have been made on the issue of nullity of the alienations made\r\nby the Trustees of the Khasgi Trust in absence of the necessary\r\nparties. However, there is no manner of doubt that the alienations\r\ncould not have been made without prior sanction of the Registrar.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>47. When a Trust property is transferred without prior sanction\r\nof the Registrar under Section 14 and/or without following a fair\r\nand transparent process, it can be always said that the Trust\r\nproperty is not being properly managed or administered. In such a\r\ncase, apart from exercising the power under Section 23, the\r\nRegistrar can make an application under sub-Section (1) of Section\r\n26 inviting the attention of the Court to the mismanagement of the\r\nTrust.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>48. In the present case, all the alienations made by the Trustees\r\nof Khasgi Trust except alienation made in favour of the appellant in\r\nCivil Appeal arising out of Special Leave Petition (C) No.19063 of\r\n2021, have been made without complying with the mandatory\r\nrequirement of obtaining the previous sanction as required by subSection (1) of Section 14. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>VALIDITY OF THE DIRECTION TO HOLD INQUIRY THROUGH\r\nECONOMIC OFFENCES WING (Question – f)</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>51. There was no warrant to direct inquiry through the Economic\r\nOffences Wing of the State Government as there is no finding that\r\nthere was mens rea on the part of the Trustees. No finding has\r\nbeen recorded by the High Court based on material that the\r\nalienation made by the Trustees has resulted in causing loss to the\r\nTrust and that the entire sale consideration being diverted for\r\npersonal use. It is noticed from the record placed before us that\r\nthe entire consideration received from the purchasers has been\r\ncredited to the account of the Trust. The allegation of\r\nmisappropriation can be gone into only by the Authorities under <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Public Trusts Act. Moreover, the direction issued by the High\r\nCourt proceeds on the erroneous assumption that the Trustees\r\nhave made misappropriation of the Government properties. There\r\nis no offence registered against the Trustees. Hence, Economic\r\nOffences Wing cannot be directed to hold an inquiry or investigation\r\nin connection with the subject matter of this proceeding. In other\r\nwords, the direction given by the High Court vide the impugned\r\nJudgment in that regard will have to be held to be non est in law.\r\nThough the said direction is unwarranted, as observed earlier, the\r\nRegistrar will have to initiate necessary proceedings under the\r\nPublic Trusts Act and carry them to a logical conclusion.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>MAINTAINABILITY OF WRIT PETITIONS (Question – g)\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>52. A contention was raised that only one Trustee had filed writ\r\npetitions before the Learned Single Judge for challenging the\r\nimpugned order of the Collector and seeking other reliefs. The\r\ncontention is that he was not authorized by the other Trustees to\r\nfile the proceedings of writ petitions. The impugned order of the\r\nCollector purports to decide the issue of Title of the Trust properties\r\nby holding that the properties in Part ‘B’ of the Schedule to the\r\nTrust Deed are vested in the State Government. Even assuming\r\nthat there was no express authority given to the writ petitioner in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the form of a resolution of the Board of Trustees to file the writ\r\npetitions, even an individual Trustee was entitled to take\r\nproceedings for questioning such orders, which adversely affect the\r\nTrust and /or its beneficiaries. On the contrary, it is the duty of\r\nevery Trustee to take such action of challenging an order holding\r\nthat the properties held by the Trust are not the Trust properties.\r\nMoreover, none of the Trustees has come forward to challenge the\r\nauthority of Trustee Shri S.C. Malhotra who had filed writ petitions\r\nand further proceedings. There was also a direction issued to the\r\nEconomic Offences Wing to hold an inquiry about the\r\nmisappropriation of the Trust property by the Trustees. Every\r\nTrustee was affected by the said direction. Therefore, in the facts\r\nof the case, the objection raised to the maintainability of the\r\npetition filed by one of the Trustees cannot be sustained.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>53. In view of the discussions made above, the impugned\r\njudgment of the Division Bench cannot be sustained in toto.\r\nHowever, the view taken by the Division Bench that the Khasgi\r\nTrust is governed by the Public Trusts Act and no alienation of the\r\nTrust properties could be made without complying with Section 14\r\nthereof, will have to be affirmed. Even the order of the learned <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Single Judge cannot be sustained as he has virtually directed the\r\nrewriting of the Trust Deed</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>56. Therefore, the appeals must succeed in part and we pass the\r\nfollowing order:-\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>a. We hold that the Khasgi (Devi Ahilyabai Holkar Charities)\r\nTrust, Indore, is a Public Trust governed by the provisions\r\nof the Madhya Pradesh Public Trusts Act, 1951;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>c. We hold that the properties described in Part ‘B’ of the\r\nSchedule to the Trust Deed, are properties of the said\r\nPublic Trust. However, alienation of the said properties can\r\nbe made only by taking recourse to Section 14 of the Public\r\nTrusts Act;\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>d. We hold that the Supplementary Trust Deed dated 08th\r\nMarch 1972 is valid. But, the Trustees of the Khasgi Trust\r\nshall be entitled to alienate the Trust Property only after\r\ncomplying with Section 14 of the Public Trusts Act;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c9344e91a62cd0ea8a491e6b464c56ee.jpg', '640cb7ccc6ad69d442ceb0f1b8acdd6a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-22', 1, '', '', '2022-07-22 19:43:33', '2022-07-25 10:40:28');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1986, 'D60QNRQxnywb4GnP8I7pjM93s', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'The expression ‘transfer’ used in Rameshwar vs State of Haryana is not confined to sale, lease or other encumbrance and includes development and/or collaboration agreements, licenses issued during the suspect period. Supreme Court clarifies. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">Rameshwar and others Vs State of Haryana and others.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Miscellaneous Application 50 of 2019 decided on 21 June 2022.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Justice Uday Umesh Lalit, Justice S. Ravindra Bhat and Justice Pamidighantam Sri Narasimha.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. The main judgment of this Court had, after duly considering the sequence\r\nof facts and developments which occurred after publication of the notification\r\nunder Section 4 of the (now repealed) Land Acquisition Act, 1894 (hereinafter,\r\n“Acquisition Act”) on 27.08.2004, read with the final decision of the State of\r\nHaryana (hereinafter, “State”) dated 29.01.2010 to not proceed with the said\r\nacquisition, declared as mala fide and inoperative the decision dated 29.01.2010.\r\nThe Court’s reasoning was that the State, in principle, had decided to withdraw\r\nfrom the acquisition after the notification under Section 4, which was followed\r\nby the declaration under Section 6 and the receipt of objections from the\r\nconcerned lands owners etc., even when the matter was posted for publication of\r\nthe award on 26.08.2007. In the interim period, land owners, alarmed by the\r\nprospect of losing their holdings, were induced to sell or otherwise transfer their\r\nlands to colonizers / developers at significantly lower rates of compensation. <span style=\"font-size: 12pt;\">Most of such colonizers / developers had entered into collaboration agreements\r\nafter the notification under Section 4, sought (and were granted) licenses by the\r\nDepartment of Town and Country Planning of the State of Haryana (hereinafter,\r\n“DTCP”). This Court found that upon an overall consideration of the materials\r\n(which included relevant official notings in government files, ministerial\r\ndecisions and notifications), the state machinery was used to further private ends.\r\nThe Court held that such a decision to withdraw from acquisition was a fraud on\r\npower under the Acquisition Act. Therefore, the judgment invalidated all\r\ntransfers effected from the date of publication of the notification under Section 4,\r\nto the date of publication of the State’s decision to revoke the acquisition i.e.,\r\nfrom 27.08.2004 to 29.01.2010 (hereinafter, “suspect period”). </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. The colonizers / developers and license holders on the one hand submitted\r\nthat so long as the lands were not ‘transferred’ by their owners (who continued to\r\nhold title), mere grant of developmental rights or other associated rights by\r\ninstruments such as builder development agreements, collaboration agreements,\r\nand other contracts would not amount to ‘transfer’ within the meaning of the main\r\njudgment. The stand of HSIIDC and the State (based upon the opinion of the\r\nlearned Advocate General of Haryana) on the other hand was that entering into\r\nsuch development agreements or contracts was in fact a ‘transfer’ as it impeded\r\nthe enjoyment of title by the owners. It was further submitted that such\r\nagreements led to issuance of licenses, which were the basis for ultimately\r\ndeciding not to acquire such lands. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\"> </span><span style=\"font-size: 1rem; font-family: var(--bs-font-sans-serif);\">I. Applications filed by (a) M/s. Paradise Systems Pvt. Ltd.; (b) M/s. Karma\r\nLakelands Pvt. Ltd. and (c) Frontier Home Developers Pvt. Ltd.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 1rem; font-family: var(--bs-font-sans-serif);\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 1rem; font-family: var(--bs-font-sans-serif);\">a. M/s. Paradise Systems Pvt. Ltd. and Green Heights Projects Pvt. Ltd.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. Paradise Systems Pvt. Ltd., (hereinafter, “Paradise”) purchased 2.681 acres\r\nof land in village Lakhnaula on 06 - 07.04.2004, by registered sale deeds.\r\n2 On\r\n09.09.2007, Paradise entered into a collaboration agreement with M/s. Sunshine\r\nTelecom Services Pvt. Ltd. (hereinafter, “Sunshine”). The consideration for that\r\nagreement was ? 75 lakhs -received by Paradise. In addition, Paradise was\r\nentitled to 35% share in the built-up commercial office space with proportionate\r\nland rights and common area rights of the developed property. Paradise granted\r\nthe ‘absolute developmental right’ of land for construction of commercial office\r\nspace. The agreement also recorded that the period for completion of the project\r\nwas to be sixty months</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. HSIIDC and the State urged that though there was no ‘transfer’ or\r\nconveyance of the title in the strict sense, what was apparent was that in terms of\r\nthe collaboration agreements, though the original landowner held nominal title,\r\neffective control of the lands was parted to the colonizer / developer. In the case\r\nof Sunshine, the consideration was ? 75 lakhs, which was in excess by more than\r\ntwice the value of compensation offered under the Acquisition Act in adjacent\r\nlands. In the case of Green Heights, Paradise received ? 28.40 crores. It was\r\nsubmitted that under the collaboration agreement, the colonizer / developer was\r\nentitled to develop the lands, build upon it, and allot the residential or commercial\r\nunit, as the case was, to those who entered into agreements and paid valuable\r\nmonies. Crucial rights such as possession, the right to construct as per one’s\r\nchoice, and the right to sell, all devolved on the colonizer / developer, who would\r\nbe entitled to a share of the proceeds. Therefore, it was urged that the real purpose\r\nbehind the transactions ought to be viewed holistically, and not only one facet of\r\nit, i.e., retention of the title by the landowners. HSIIDC and the State therefore</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>b. Karma Lakelands Pvt. Ltd. and Unitech Ltd</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Karma Lakelands Pvt. Ltd. (hereinafter, “Karma”) had purchased lands in\r\nvillages Manesar, Naurangpur and Lakhnaula, between 1996 and 2004. In respect\r\nof the total 207.11 acres it had acquired, Karma was granted a conversion of land\r\nuse (hereinafter, “CLU”) certificate by the State on 13.03.1996.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. The notification issued under Section 4 had included these 207.11 acres, as\r\nwell as another lot of 25.95 acres in villages Naurangpur and Lakhnaula, owned\r\nby companies whose dominant shareholder (to the extent of 90%) was also the\r\nmajority shareholder in Karma. When the declaration under Section 6 was\r\npublished on 25.08.2005, Karma’s lands, which were the subject of the CLU\r\n(207.11 acres), were dropped from acquisition. This was apparently in tune with\r\nthe existing policy of not acquiring lands whose use had been converted. There is\r\nno controversy about those lands at present.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. In these proceedings, it is the smaller parcel of 25.95 acres of land, which\r\nis the subject matter of consideration. Unlike the lands for which CLU had been\r\nobtained, these 25.95 acres were included in the acquisition proceedings, in the\r\ndeclaration under Section 6. In respect of these lands, Karma had entered into a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">collaboration agreement on 16.02.2004, and a supplementary agreement on\r\n24.12.2006, after the publication of the declaration under Section 6 i.e., after\r\n25.08.2005. The collaboration agreement envisaged development of these lands\r\nby M/s Unitech Ltd. (hereinafter, “Unitech”). According to the arrangement, a\r\nlarge number of golf villas were to be built and given out on long-lease basis.\r\nDuring the proceedings before this Court, Unitech stated that it had paid ? 15\r\ncrores to Karma as consideration for the same.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18. It was also urged by the State and HSIIDC that unlike in other cases, there\r\nhad been no development on the land. Further, interests like those of third party\r\nallottees was not involved. In these circumstances, the lands which were\r\ndeliberately excluded from acquisition, after they formed part of the final\r\ndeclaration, by non-publication of the award, clearly fell within the mischief of\r\nwhat could be termed as ‘transfer’ in the main judgment.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>c. Frontier Home Developers Pvt. Ltd., Balbir Singh, Ram Pyari, M/s Earl\r\nInfotech Pvt. Ltd., and Godrej Properties Ltd.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. Frontier Home Developers Pvt. Ltd. (hereinafter, “Frontier”) had originally\r\npurchased 8.568 acres of land at village Naurangpur on 16.08.2004 under its\r\nerstwhile name Conway Developers Pvt. Ltd. (hereinafter, “Lot 1”). The\r\nconsideration paid was ? 5.62 crores. Another parcel, i.e., 5.175 acres of land was\r\njointly owned by one Balbir Singh and Ram Pyari (hereinafter, “Lot 2”). Both\r\nlots were included in the notification under Section 4, as well as the declaration <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under Section 6. During this period, Balbir Singh and Ram Pyari entered into a\r\ncollaboration agreement with M/s Earl Infotech Pvt. Ltd. (hereinafter, “Earl”) on\r\n24.08.2006 for its development. Soon thereafter, Earl entered into a development\r\ncollaboration agreement with Frontier in respect of Lot 2 on 11.12.2006. Frontier\r\nagreed to jointly develop both lots. This agreement was followed up with a\r\nsupplementary agreement between Balbir Singh, Ram Pyari, and Earl under\r\nwhich further amounts were given to the owners as consideration.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. In this agreement, Balbir Singh and Ram Pyari were to receive 55,328.60\r\nsq. ft. of built-up area. The agreement (by clause 2.11) showed exact areas -\r\nincluding built up areas - which were to come up; what was allocable for\r\namenities, common facilities, etc. The consideration was that Frontier was to have\r\na 30% right in the gross share of revenue, and Godrej the remaining 70%. Godrej\r\npaid Frontier an interest-free deposit equal to ? 16 crores of which ? 5.5 crores <span style=\"font-size: 12pt;\">was non-refundable; in addition, Frontier’s expenses till then were reimbursed.\r\nThe prior commitments of Frontier, including allotment of land to owners\r\n(55,328.60 sq. ft.) and additional 1,00,000 sq. ft. for 50 residential flats in favor\r\nof the Jammu & Kashmir All India Service Officers Society was also agreed to.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. In the present case, Balbir Singh and Ram Pyari owned Lot 2 much before\r\nthe notification under Section 4, and these landowners continued to hold title of\r\nthe land as on the date of filing their affidavits before this Court. The only\r\ndifference was that the flats developed on the land had been sold to bona fide\r\nconsumers and conveyance deeds had been executed in their favour by the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">landowners and the colonizers / developers. Out of the entire flats developed on\r\nthe said land, some had been allocated to respective stakeholders including the\r\nlandowners. The original landowner in the case of Lot 1 was always Frontier,\r\nwhich had also purchased the lands before the notification under Section 4. In\r\nthese circumstances, the project should not be covered by the deemed award as\r\nstipulated in the main judgment.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. It was urged that entering into collaboration agreements, applying for\r\nlicenses and issuing licenses could not be construed as ‘transfers’, or a burden on\r\nthe title. It was submitted that these were legitimate activities that landowners\r\nwith valid title could perform. It was also urged that Godrej in fact took over\r\ndevelopment five months after the lands were released from the cloud of\r\nacquisition (the collaboration agreement was dated 24.06.2010, whereas the\r\ndecision of the State to drop the acquisition proceedings was taken on\r\n29.01.2010). Godrej therefore could not be accused of any wrongdoing, because\r\nit entered into agreement with bona fide land owners after any kind of impediment\r\non collaboration had ceased. Furthermore, it developed the property by beginning\r\nconstruction only in 2011, after obtaining all permissions.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. It was lastly urged that in case the interpretation of the main judgment were\r\nso as to include the present lands within the ambit of the deemed award, then the\r\npurpose of carving out an exception in para 42.2 would be defeated. Moreover,\r\nthe main judgment was meant to protect the interests of farmers, and in this case, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">any alternate interpretation would end up harming their interests. Likewise, the\r\ngenuine interests of bona fide third-party consumers would be jeopardized.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>d. Analysis and conclusion of I (a) (b) and (c):</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. The common refrain of the colonizers / developers was that while the\r\ncollaboration agreements were entered into during the suspect period, the title to\r\nthe lands had never passed onto them. Further, (in some cases) licenses were\r\nobtained only after the time for announcing the award had expired.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3<span style=\"font-size: 12pt;\">0. The question then revolves around the true nature of these development\r\nrights, and whether the directions issued in the main judgment were applicable to\r\ntheir ‘transfer’. In these cases, undoubtedly transfer of such rights was done after\r\nthe lands were notified under Section 4 (except in the case of Karma where apart\r\nfrom the original development agreement dated 16.02.2004, a supplementary\r\nagreement was entered later into on 24.12.2006). Additionally, soon after the\r\ncollaboration agreements were executed, licenses were applied for and issued\r\n(License Nos. 88 of 2008, 59 of 2009 and 206 of 2008) after the declaration under </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 6 but before the State’s final decision to not acquire the lands on\r\n29.01.2010</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. The nature of collaboration agreements has been discussed by this Court in\r\nFaqir Chand Gulati vs Uppal Agencies Pvt. Ltd. & Anr.\r\n6\r\nIn this case, the parties\r\nhad entered into a collaboration agreement for the construction of a residential\r\nbuilding. The usual conditions, such as handing over possession, non-interference\r\nin the project, handing over title documents to enable sale of constructed units to\r\nthird parties, etc. were agreed to. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. The above judgment, while clarifying the purpose of collaboration\r\nagreements, falls short of delving into the legal effects of the transfer of such\r\ndevelopment rights. Parting with rights which are fundamental to ownership, for\r\nvaluable consideration (in cash or by handing over constructed units), leaving\r\nonly the nominal ‘title’ with the landowner, is a common feature of such\r\ncollaboration agreements. Given the evolution in complexity of real estate\r\ncontracts, and the absence of the definition of collaboration agreements in\r\nlegislation, their interpretation by various High Courts assumes significance<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34. Thus, collaboration agreements which enable the colonizer / developer to\r\nretain a significant portion of the constructed area as consideration, are not in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">nature of pure construction contracts. An analysis of these agreements depicts the\r\ntransfer of crucial rights and interests in the property, which otherwise are\r\nenjoyed only by the landowner, falling short only in respect of the ‘title’.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>41. The above observations are dispositive of the issue. However, this Court\r\ncannot be oblivious to the existing state of affairs. The collaboration agreement\r\nentered into between Paradise and Green Heights and Frontier and Balbir Singh\r\nand Ram Pyari with Godrej have led to construction of units. This Court has been\r\nshown materials which establish that in the case of Green Heights, the number of\r\nconstructed units is 438 (of which 371 have been sold) and in the case of Godrej,\r\nthe constructed units is 567. It is also on record that Green Heights has received\r\n? 70.92 crores as against sale value of agreements. Likewise, there is no denial of\r\nthe fact that Godrej has also received substantial amounts in the range of ? 300\r\ncrores towards its residential units sold. In these circumstances, the Court would\r\nhave to strike a proper balance and protect the interests of such third-party\r\nconsumers to ensure that they do not suffer on account of the past sins of the\r\ncolonizers / developers or land owners, as the case may be.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>43. As far as Karma’s lands are concerned, the materials on record disclose\r\nthat no development has taken place, and there is no allotment in respect of their\r\nlands. Karma had in fact entered into a collaboration agreement with M/s Unitech\r\nLtd., and based on that, it applied for license on 15.01.2007. The license was\r\nultimately granted before the date of the decision of the State not to acquire its\r\nland. In these circumstances, this Court holds that the collaboration agreement –\r\nespecially the supplementary agreement which was entered into after even the\r\ndeclaration under Section 6 was published – the application for license and the\r\ngrant of license constituted an irreversible clog in the ownership of the lands.\r\nKarma received substantial amounts to the tune of ? 15 crores, and in terms of\r\nthe agreement placed on record, was entitled to far more substantial amounts had\r\nthe development in fact been completed. In these circumstances, it is held that the\r\ncollaboration agreement and the grant of license amounted to ‘transfer’ within the\r\nmeaning of the expression in para 42.6 of the main judgment. Such land will <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">therefore, form part of the deemed award. The State shall take appropriate steps\r\nand issue the supplementary award in respect of these lands within six months\r\nfrom the date of this judgment.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">44. It is also clarified that Karma would be entitled to compensation in\r\naccordance with the Acquisition Act as on the date of the notification under\r\nSection 4. The compensation in such case shall be determined within the same\r\ntime-frame as indicated in the award. Karma shall be entitled to statutory benefits\r\nsuch as interest, solatium etc. on such determined compensation. In the event\r\nKarma is aggrieved, it is open to it to seek such recourse or redress in law as is\r\navailable.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>III. Express Greens / DLF Home Developer Ltd.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>51. Express Greens was a project of DLF Home Developers Ltd. (hereinafter,\r\n“DLF”). The main judgment of this Court had dealt with the manner in which\r\nthe land for this project was acquired from the original landowners in the village\r\nManesar by a group of companies and entities owned or wholly controlled by\r\nABW Infrastructure Ltd. (hereinafter, “ABW”). These lands, in aggregate,\r\nmeasured 33.536 acres. ABW and its group of companies obtained License No.\r\n283 and 284 for their development. These lands were part of the 235 acres which\r\nABW had purchased during the subsistence of the acquisition proceedings <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Eventually, before the final decision to drop the acquisition was taken by the State\r\non 29.01.2010, the lands and licenses were transferred to DLF for a consideration\r\nof ?150.95 crores.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>63. Having regard to the above discussion, it is held that the request of the\r\nExpress Green Home Owners Association and DLF to exclude the project from\r\ndeemed award is not tenable. It is accordingly rejected. It is further declared that\r\nall unconstructed and unallotted portions as well as construction rights (such as <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">FAR) in respect of unconstructed, unallotted plots etc., including two school sites,\r\nshall vest absolutely with HSIIDC. HSIIDC shall be entitled to develop these\r\nareas in accordance with its policies within the frame work of the applicable\r\nMaster Plan development laws. DLF is therefore, entitled to collect amounts, if\r\nany, in terms of the main judgment of this Court. It shall hand over all records\r\nrelating to the allottees, and technical data, pertaining to the entire project to\r\nHSIIDC within one month from the date of this judgment</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>IV. M/s Kalinga Realtors Pvt. Ltd.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>65. An application (MA No. 50/2019) was filed by Kalinga Realtors Pvt. Ltd.\r\nthe first applicant, a wholly-owned subsidiary of the second applicant, Anant Raj\r\nLtd. Both applicants are cumulatively referred to as “Kalinga”. The claim in this\r\napplication is for a direction for proper calculation of amounts payable by\r\nHSIIDC to Kalinga, in terms of the main judgment. It is a matter of record, that\r\nKalinga sought NOC from DTCP to purchase the land in October 2009. The same\r\nwas granted in January, 2010 and sale deed executed shortly thereafter on 23.04.2010. ABW and its group of companies had acquired License No. 67 of\r\n2009 dated 19.11.2009, which was transferred to Kalinga pursuant to the sale\r\ndeed on 12.07.2010. Thus, Kalinga’s attempt to purchase the land and rights\r\ngranted by the license clearly fell within the mischief of the main judgment of\r\nthis Court.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>70. From the above discussion, it is evident that Kalinga’s grievance is\r\nregarding the amounts it claims it is entitled to. The gap between its claim (?308\r\ncrore) and what HSIIDC offered at one time (? 11.68 crores) is too excessive.\r\nThe materials placed on record show that HSIIDC in fact, did put up the entire <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">land, with the construction for auction15 on an ‘as is where is’ basis. The date of\r\ne-auction was 21.09.2021, with a reserve price of ? 309 crores. The advertisement\r\nalso states that 12 towers were constructed with finishing remaining; other works\r\n(EWS, community centre, etc.) were yet to be constructed. The advertisement\r\nfurther states that the successful bidder was to step into Kalinga’s shoes and\r\ncomplete the project.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>V. ABW Infrastructure Ltd.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>76. ABW was earlier known as M/s. Aditya Buildwell Pvt. Ltd. ABW and its\r\nassociated companies had purchased maximum land measuring over 235 acres.\r\n‘ABW Aditya Niketen’ was floated by ABW in M-I, M-I(A) and M-I(C)\r\nadjoining HSIIDC Residential Sector-1, Manesar, Gurgaon, Haryana. That\r\nproject was the subject matter of the proceedings throughout culminating in the\r\nmain judgment of this Court. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>87. The main judgment expressly stated that it is only in cases where\r\nconstruction is completed or nearing completion that the interests of third party\r\nallottees were protected. However, such is not the situation in the case of 104.682\r\nacres of land that belonged to ABW. There is no denial that such lands have now\r\nbeen vested in HSIIDC as a consequence of the main judgment of this Court and\r\nare to be included as part of the deemed award. It is apparent that the when the\r\nCourt delivered the main judgment, it was unaware of the true nature of acts in\r\nrelation to each project, especially in relation to ABW, i.e., that no development\r\nhad taken place and that allottees had merely paid certain instalments to the\r\ncolonizer / developer. Furthermore, the materials on record disclose that a large\r\nnumber of claims have been made for refund. Having regard to these facts and\r\nbeing aware of the practical reality that were HSIIDC mandated to now proceed <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">with the project, it would not be reasonable to expect completion of such project\r\nin the foreseeable future, at least for the next 5-7 years, it would be in the fitness\r\nof things that HSIIDC refunds the amounts payable to the allottees of the entire\r\nproject, i.e., allottees of residential units/plots and commercial or shop space.\r\nHSIIDC shall take up this process as expeditiously as possible and facilitate the\r\nverification and payment of these amounts at the earliest, so that the process is\r\ncompleted within the next twelve months from the date of this judgment. In case,\r\nthe HSIIDC is unable to refund the amounts, by that date, the sums shall carry\r\ninterest at 6% p.a</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>VI. Speed Town Planners Pvt. Ltd.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n89. Eleven applications were preferred in relation to lands that were inter alia,\r\nsubject of license No. 175 of 2008 dated 30.09.2008 pertaining to 2.443 acres of\r\nland in village Naurangpur acquired by Girnar Infrastructure Pvt. Ltd. (hereafter\r\n“Girnar”) and License No. 76 in favour of one Navin Rao to the extent of 11.519\r\nacres). Girnar was a wholly owned subsidiary of Unitech, and Navin Rao too was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">an affiliate of Unitech. Applications were preferred by Unitech, and one Speed\r\nTown Planners Pvt. Ltd. (hereafter “Speed Town”) which claimed to be entitled\r\nto rights to 19.56 acres.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>100. This Court’s main judgment, has noted in more than one place, from paras\r\n26.1 to 26.9, and traced the sequence of events which led to the notification of\r\n912 acres for acquisition, the resultant panic and scramble on the part of\r\nlandowners to get rid of their holdings, the purchase of these lands, and in many\r\nplaces, their entering into agreements of sale or development agreements, by\r\nbuilders, which made no mention of the impending acquisition, leading to a\r\ndemand to drop acquisition, which was ultimately done at two points of time, i.e.\r\n24.08.2007 and 29.01.2010. The transactions relating to lands owned by Girnar,\r\nand Unitech’s associates, squarely fall within the suspect period. In these given\r\ncircumstances, Unitech’s plea, or that of Speed Town, that the collaboration\r\nagreement with the latter- and the agreement to sell, - were executed after the\r\nsuspect period, are untenable. The taint that attaches with the initial transaction\r\n(i.e., Girnar acquiring the lands during the acquisition process) attaches equally,\r\nto Speed Town’s transaction, because the entire premise, which persuaded the\r\nvendor to sell the lands, was that the acquisition proceedings would go through,\r\ndivesting their title. However, the vendee and its holding company appeared to\r\nhave full knowledge of the nature of future events, in which they probably had a\r\nhand. Thus, the request for exclusion of these lands, from the deemed award, is\r\nuntenable and is accordingly rejected. Speed Town shall be entitled to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">compensation to be decided, in respect of the land, on the same basis as in the\r\ncase of all others entitled to it.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>VII. Innovative Infradevelopers Pvt. Ltd.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>a. Legend Height Owners Welfare Association\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>102. <span style=\"font-size: 12pt;\">3.35 acres of agricultural land in Naurangpur was purchased by two\r\nindividuals, i.e., Shri Ashok Kumar Lakhotia and Shri Subhash Chand Goyal by\r\nsale deeds dated 26.02.2004 and 08.03.2004. It was claimed that these two also\r\nobtained possession. The lands became the subject matter of acquisition in the\r\nnotification under Section 4. The original owners sought for release of land and\r\nthereafter objected under Section 5A of the Acquisition Act. Some lands were\r\nreleased from acquisition, however, the major portion was included in the\r\ndeclaration under Section 6. Request for release of these lands for acquisition\r\nwas made. This was followed up by an order dated 31.07.2007 releasing the land\r\nfrom acquisition. M/s. Innovative Infradevelopers Pvt. Ltd. (hereinafter,\r\n“Innovative”) thereafter entered the scene on 15.10.2007. Subsequently, they</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>b. Paramveer Distributors Pvt. Ltd.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>105. Another set of applications has been preferred by Paramveer Distributors\r\nPvt. Ltd., (hereinafter, “Paramveer”) a non-banking financial institution. It\r\nalleges having entered into an agreement with Innovative on 08.06.2017, whereby\r\nan area measuring 96,216.03 sq. ft. was agreed to be purchased by it for a total\r\nconsideration of ? 16 crores. The areas sold was for a hotel block. The relevant\r\ncondition stipulated that out of ? 16 crores payable by the buyer, ? 8.05 crores,\r\nby way of outstanding dues of one Ms. Saraswati Devi was agreed to be adjusted.\r\nAnother sum of ? 4.24 crores by way of outstanding dues of Paramveer, was\r\nagreed to be adjusted. The balance amount was to be paid in the ratio of 55:45\r\nrespectively. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>c. Analysis of VII (a) and (b)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>109. At the same time, this Court is cognizant of the fact that a number of\r\nallottees appear to have invested substantial amounts (in respect of the\r\ncommercial building of Legend Heights, and not the hotel building of\r\nParamveer). Although HSIIDC is silent as to whether the occupation certificates\r\nhave been granted, there is some material on record (by way of averments in the\r\nspecial leave petition as well as in the application by the Legend Heights\r\nAssociation) that several sale deeds/conveyance were executed and registered.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>110. The larger interest of justice would lie in ensuring that such of the allottees\r\nwho are either granted occupation, and /or in whose favour conveyance has been\r\nexecuted, should be handed over the commercial units that they had originally <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">booked. As far as others are concerned, HSIIDC should first verify the claims of\r\nall persons/entities who claim to have paid substantial amounts and have not been\r\nallotted their spaces, and shall, depending on the stage and nature of construction\r\nand the extent of amount paid (it is more than 75 per cent of the total\r\nconsideration) hand over possession of the units, after due completion.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>111. In case any allottee seeks refund, HSIIDC should ensure that the amounts\r\nare duly verified and repaid within six months of the date of this judgment. In the\r\ncase of default, HSIIDC shall pay 6% per annum as interest. In respect of all\r\nunallotted units and areas which can be constructed upon, title shall vest\r\nexclusively with HSIIDC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>112. So far as Paramveer is concerned, this Court is of the opinion that the\r\nagreement entered into with Innovative records that certain amounts (over ? 12\r\ncrores) were due and payable to the allottees, which was subsequently adjusted\r\nin the builder buyer agreement for the hotel. The details of those transactions have\r\nnowhere been verified or placed on record. In addition, Innovative has stated that\r\nconstruction of the hotel block has not taken place. In the circumstances, all\r\nrights, title and interest in those portions of Innovatives’ properties shall vest in\r\nHSIIDC and be part of the deemed award.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>VIII. Dharamvir & Ors.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>114. 105 individuals approached the Punjab & Haryana High Court, through a\r\ncommon writ petition, claiming directions that they were residents of village\r\nManesar.18 The claim put forth by them was that they were bona fide and innocent\r\npurchasers who had acquired the lands which were included in the notification\r\nunder Section 4. They acquired rights in respect of lands – presently under their\r\noccupation during the suspect period, i.e., between 27.08.2004 and 29.01.2010.\r\nIt is alleged that assuming the transactions to be free from any cloud on the title,\r\nthese petitioners had even proceeded to construct upon lands. The claim made to\r\nthe Punjab & Haryana High Court was that their lands should be excluded from\r\nthe deemed award. The High Court declined the claim, reasoning that the\r\npurchases were made by them during the suspect period and this court’s judgment\r\nprovided relief only to the original land owners who had not transferred, alienated\r\nor in any manner sold or parted with rights in respect of the land. Since these\r\npetitioners admittedly claimed to have purchased the land when they were facing <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">acquisition, no relief could be granted to them. It was argued on behalf of these\r\npetitioners by Mr. Rathi that all the petitioners invested their hard-earned money\r\nand had built houses in which they have been living all this while. It was urged\r\nthat many of those dwellers are ex-army personnel.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>117. Wherever development agreements were entered into and licenses issued,\r\nand no activity took place in the form of construction or development, land was\r\nto vest in HSIIDC. If the above thread of reasoning were to be considered, it is\r\napparent that third-party bona fide purchasers who secured allotment by paying\r\nvaluable considerations which is verifiable as a matter of fact (by independent\r\nmaterial) was protected. In the case of all other transactions, however, such\r\nprotection was not extended for the simple reason that there is no manner for\r\nverifying whether in fact a bona fide transaction of the kind alleged took place.\r\nFor these reasons, this Court is of the opinion that there is no infirmity with the\r\njudgment and order of the Punjab and Haryana High Court.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>118. As a result of the above, the right and title in respect of lands under\r\noccupation of these petitioners is vested with HSIIDC. It is up to the HSIIDC to\r\nframe such scheme as is permissible in accordance with its parent enactment and\r\na non-discriminatory manner by a scheme, in regard to such land (i.e. the 27 acres\r\nto which the petitioners and others like them may claim relief) as it may deem\r\nappropriate. In case the HSIIDC chooses to do so, it shall be bound by all <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>IX. Other issues\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>119. During the hearing, it was submitted that out of the 688 acres finally\r\nnotified under Section 6, 420 acres were finally included as part of the deemed\r\naward. Learned counsel urged that HSIIDC has sought to grant benefit to\r\ndevelopers who made colossal profits and have sought to wriggle out from the\r\nimpact of the judgment to various stratagem, including by filing applications for\r\nextension/clarification etc. During the course of hearing, all these applications,\r\nthe submissions of all parties and that of HSIIDC (which has also preferred this\r\napplication for directions and clarifications) were considered. Out of the 912\r\nacres originally notified under Section 4 of the deemed consideration of\r\nobjections under Section 5A, 688 acres were apparently notified under Section 6.\r\nThe entire acquisition was abandoned on 29.01.2010. This Court, in its main\r\njudgment has, in many places - held, in the that the state’s decision to not to go\r\nahead with the acquisition was mala fide and amounting to a fraud under the\r\nAcquisition Act. The HSIIDC through its applications sought clarifications about\r\nwhether the term ‘transfer’, includes only conveyance or formal transfer of lands\r\nor would it include parting with valuable developmental rights. In an earlier\r\nportion of this judgment, this aspect has been elaborately dealt with, and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">concluded that the expression ‘transfer’ has to be interpreted widely and not in a\r\nnarrow or technical manner. Thus, in all cases where collaboration agreements\r\nwere entered into or developmental rights were parted for valuable consideration\r\nor where licenses were applied for during the suspect period whether in favor of\r\nthe original land owner who might have entered into collaboration agreement and\r\nreceived monies, the transactions would fall within the mischief of transfer.\r\nHaving regard to these conclusions, the applicants’ apprehensions are unfounded.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Conclusions and Directions:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>121. In the light of the above discussion, this Court’s findings are summarized\r\nas follows:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>a. The expression ‘transfer’ used in the main judgment, especially in light of para\r\n42.6, is not confined to sale, lease or other encumbrance. It includes\r\ndevelopment and/or collaboration agreements, as well as licenses issued (for\r\ndevelopment) during the suspect period, whether or not in favour of the\r\ndeveloper.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>b. As a corollary to the above, the lands covered by licenses issued to Paradise\r\n(ultimately transferred to Green Heights); Karma (for which collaboration was\r\nentered into with Unitech); Ram Pyari, Balbir Singh, Earl and Frontier\r\n(ultimately used by Godrej); Express Greens (DLF); Kalinga and Innovative\r\namount to transfer.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>c. With respect to Green Heights, a sum of ? 5 crores per acre is payable by\r\nGreen Heights to HSIIDC. Therefore, the final amount payable is 2.681 acres\r\nx ? 5 crores = ? 13,40,50,000 /- (rupees thirteen crores, forty lakhs, and fifty\r\nthousand only) within six months from the date of this judgment, failing which\r\ninterest at the rate of 6% per annum shall be levied from the date of default.\r\nGreen Heights is entitled to recover from Paradise such proportionate sums it\r\nmay be entitled to claim having regard to the terms of their agreement. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>d. With respect to Godrej, a sum of ? 5 crores per acre is payable by Godrej to\r\nHSIIDC. Therefore, final amount payable is 13.743 acres x ? 5 crores = ?\r\n67,36,30,000 /- (rupees sixty-seven crores, thirty-six lakhs and thirty thousand\r\nonly) within six months from the date of this judgment, failing which interest\r\nat the rate of 6% per annum shall be levied from the date of default. Godrej is\r\nentitled to claim such proportionate sums as it may be entitled to in terms of\r\nits agreement with Frontier, Earl, Balbir Singh and Ram Pyari in accordance\r\nwith law.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>f. With respect to Karma, the 25.95 acres of land subject of License No. 206 of\r\n2008 forms part of the deemed award. The State shall take appropriate steps\r\nand issue the supplementary award in respect of these lands within six months\r\nfrom the date of this judgment. Karma is entitled to compensation in\r\naccordance with the Acquisition Act as on the date of the notification under\r\nSection 4, and is entitled to statutory benefits such as interest, solatium etc. on\r\nsuch determined compensation.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>g. Lands measuring 2.9875 acres and 10.881 acres respectively belonging to R.P.\r\nEstates and Subros, are excluded from the deemed award.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\nh. With respect to Express Greens (DLF), contentions to exclude the project from\r\nthe deemed award are rejected. It is directed that:<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>(iii) All rights, title and interest in respect of the unsold 39 townhouses\r\nin the independent floors vests with the HSIIDC, which shall deal\r\nwith them in accordance with its policies and applicable laws.\r\nLikewise, in case of unsold apartments, all rights, title and interest\r\nshall vest with HSIIDC.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iv) With respect to 96 apartments on the 15th tower which have been\r\ncompleted but no occupation certificate has yet been issued, the\r\nDTCP shall ensure due inspection and decision on the pending\r\noccupation certificates. HSIIDC to complete any deficiency that has\r\nto be rectified.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>complete the same with eighteen months from the date of this\r\njudgment.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(vi) All unconstructed and unallotted portions as well as construction\r\nrights (such as FAR) in respect of unconstructed, unallotted plots\r\netc., including two school sites, shall vest absolutely with HSIIDC.\r\nHSIIDC is entitled to develop these areas in accordance with its\r\npolicies within the frame work of the applicable Master Plan\r\ndevelopment laws. DLF is entitled to collect amounts, if any, in\r\nterms of the main judgment of this Court. It shall hand over all\r\nrecords relating to the allottees, and technical data, pertaining to the\r\nentire project to HSIIDC within one month from the date of this\r\njudgment. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>j. With respect to ABW, it is directed that HSIIDC to refund the amounts\r\npayable to the allottees of the entire project, i.e., allottees of residential\r\nunits/plots and commercial or shop space, within the next twelve months from\r\nthe date of this judgment, failing which interest at the rate of 6% per annum\r\nshall be levied from date of default. The lands of ABW shall form part of the\r\ndeemed award.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\nk. With respect to Speed Town, the contentions to exclude the land from the\r\ndeemed award are rejected. It is held that Speed Town shall be entitled to the\r\ncompensation to be decided, in respect of the land, on the same basis as in the\r\ncase of all others entitled to it.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\nl. With respect Paramveer, the contentions to exclude the hotel block from the\r\ndeemed award are rejected. All rights, title and interest in those portions of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Innovative’s properties shall vest in HSIIDC and be part of the deemed award.\r\nInnovative shall be entitled to amounts like in the case of all other\r\ndevelopers/owners in accordance with the main judgment. HSIIDC shall\r\nverify its claims. In the event of any dispute in this regard, Innovative is at\r\nliberty to press its claim in substantiative legal proceedings and not their\r\nmiscellaneous applications before this Court</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>m. With respect to Legend Heights, HSIIDC is directed to:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n(i) Hand over commercial units to allottees who were either granted\r\noccupation, and /or in whose favour conveyance was executed. As far\r\nas others are concerned, HSIIDC to first verify the claims of all\r\npersons/entities who claim to have paid substantial amounts and have\r\nnot been allotted their spaces, and shall, depending on the stage and\r\nnature of construction and the extent of amount paid (it is more than 75\r\nper cent of the total consideration) hand over possession of the units,\r\nafter due completion.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) Duly verify and pay refunds sought by any allottee within six months\r\nof the date of this judgment, failing which interest at the rate of 6% per\r\nannum shall be levied from date of default.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) In respect of all unallotted units and areas which can be constructed\r\nupon, title shall vest exclusively with HSIIDC.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">n. With respect to Dharamveer and other petitioners, as well as similarly placed\r\nindividuals the rights and title in respect of lands under their occupation is vested with HSIIDC. It is up to the HSIIDC to frame such scheme as is\r\npermissible in accordance with its parent enactment and a non-discriminatory\r\nmanner by a scheme, in regard to such land (i.e., the 27 acres to which the\r\npetitioners and others like them may claim relief) as it may deem appropriate.\r\nIn case the HSIIDC chooses to do so, it shall be bound by all provisions of the\r\nMaster Plan and Zoning and such other rules and regulations as are applicable,\r\nin the area and shall strictly enforce them.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>p. It is clarified that wherever the allottees have not paid the full amounts\r\n(payable in terms of the agreements) HSIIDC shall be entitled to the same\r\nrights in law as in the case of the original builder/developer, which include,\r\nbut are not limited to, insisting full payment before handing over possession\r\nto the allottees. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p></o:p></p>', '26637d0508f29fff2763e6f3e846d9b5.JPG', '041cfd308f24b37bb77db6b0ce516287.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-25', 1, '', '', '2022-07-22 22:08:46', '2022-07-25 08:24:37');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1987, 'ftBEuUrvqx3sHe2V7cFsYvxKY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Where property is sold under the Partition Act 1893, provisions of Order 21 Rules 84 & 85 CPC regarding mandatory deposit of entire balance sale price within 15 days do not apply. Court can extend time for such payment. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rajasekhar Andanuru and others Vs A. Mohan and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 12119 of 2022 decided on 19 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sachin Shankar Magadum.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The Coordinate Bench of this Court in Civil Revision Petition No.383/2015 directed the final decree Court to draw final decree by bringing in suit schedule property for sale as contemplated under law. The respondent Nos.9 to 11 before this Court who are arrayed as defendant Nos.4(a) to 4(c) filed application in I.A.No.12 under Section 2 read with Section 8 of the Partition Act, 1893 (for short \'the Act of 1893\') requesting the Court to sell the suit schedule property by way of auction and distribute the proceeds. The said application was allowed by the final decree Court by order dated 23.11.2021 and the Court called upon the parties to submit their written willingness to bid the property under court auction in terms of Section 3 of the Act of 1893. The respondent No.1 who is the petitioner in FDP Court, respondent Nos.4 and 5 who are arrayed as respondent Nos.1(c) and 1(d) respectively, husband of respondent No.9 namely Dayanand who was arrayed as respondent No.4 and present respondent No.15 who is arrayed as defendant No.8 expressed their willingness to participate in the bid. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The matter was adjourned on three occasions to enable the present petitioners an opportunity to participate in the proceedings. The present petitioners did not submit their willingness to purchase the property under the bid. On 13.12.2021, court auction was conducted and bid was held in court premises between 4.00 p.m. to 5.00 p.m. In terms of court auction held on 14.12.2021, the above said respondents participated in the auction bid and the present respondent No.15 was declared to be the successful bidder.  The FDP Court directed the respondent No.15 to deposit the bid amount by 17.01.2022.  The respondent No.15 filed a memo along with Demand Drafts bearing Nos.172109 and 172110 dated 14.01.2022 and deposited Rs.1 Crore each. Thereafter respondent No.15 filed I.A.No.15 seeking extension of time to deposit remaining sale consideration. The respondent No.15 subsequently has deposited the entire amount. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. The petitioners contended that respondent No.15 has not deposited the bid amount as per the provisions of Order 21 Rules 84 and 85 of CPC and therefore, sought for setting aside the bid and order for resale. The petitioners relied on judgment rendered by this Court in the case of Harnath Rao vs. Parvathamma and Others1 and also judgment in Mudragada Suryanarayanamurthi vs. Southern Agencies, Rajahmundry2. The said contention was countered by respondent No.15 by specifically contending that the auction is held in terms of Section 3 of the Act of 1893 and therefore, the provisions of Order 21 Rule 84 of CPC are not applicable.  The respondent No.15 also placed reliance 1 ILR 1998 Kar 3974 2 AIR 1962 AP 271 on the judgment rendered by the Andhra Pradesh High Court reported in AIR 1989 AP 320. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The learned Judge, however, declined to entertain the objections raised by the petitioners herein. The contention of the petitioners that they were not aware of auction sale till 14.12.2021 was not accepted by the FDP Court. The FDP Court was of the view that if petitioners had come to know about the auction sale on 14.12.2021, nothing prevented petitioners from seeking advancement of the matter. It is in this background, FDP Court declined to entertain the objections having regard to the fact that bid amount is huge and since respondent No.15 has deposited the entire bid amount in the Court, the FDP Court was of the view that the Partition Act does not prescribe any time limit for deposit of bid amount. The FDP Court was also of the view that the amount was deposited within reasonable time. Therefore, applying the principles laid down by the Andhra Pradesh High Court  in  the  judgment  cited  supra,  the  learned  Judge proceeded to allow the application filed in I.A.No.15 by respondent No.15 seeking extension of time. Consequently, application filed in I.A.No.16 under the provisions of Order 21 Rules 89 and 90 and I.A.No.17 under Order 21 Rules 84 and 85 by the present petitioners herein were rejected. It is these common orders which are questioned before this Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. Heard learned counsel appearing for the petitioners and learned counsel appearing for the respondent No.15. Perused the order under challenge. The following points would arise for consideration:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1)<span style=\"white-space:pre\">	</span>Whether the provisions of Order 21 Rule 84 of CPC are applicable to the auction conducted under Section 3 of the Partition Act, 1893? 2)<span style=\"white-space:pre\">	</span>Whether the petitioners have made out a case to set aside the auction on the ground that they were not afforded an opportunity to participate in the auction?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Re: Point No.1: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. The present petitioners objection is that respondent No.15 has failed to deposit 25% of the bid amount as on the date of auction. Therefore, petitioners contend that it is mandatory  to  deposit  25%  of  the  amount  on  the  date  of auction and the successful bidder has to pay entire amount within 15 days from the date of auction i.e., 14.12.2021.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. The material on record clearly indicates that three co-sharers have applied for leave to buy and it is in this background, court has ordered for sale of the suit schedule property to the shareholder who offers to pay highest price. Therefore, in view of Section 3(2) of the Act of 1893, the court has proceeded to hold an auction among the co-sharers and sell it to co-sharers who offers to pay highest price. The Legislature has used the word \"shareholder\" which otherwise means and connotes a person who has a share in a property. The sale of joint property under Sections 2 and 3 of the Act of 1893 is different from a property sold in a public auction as per the provisions of CPC, where a condition for deposit and resale in case of default are provided.  Therefore, when auction is conducted among co-sharers i.e., within the family members, the requisite deposit of 25% and thereafter the balance amount to be deposited within a period of 15 days cannot be made applicable insofar as in case of an auction conducted under the provisions of Partition Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. The provision regarding deposit of 25% by the purchaser other than the decree holder is mandatory and non-compliance with it will make the sale a nullity. Therefore, this Court is of the view that the provisions of Order 21 Rules 84 and 85 of CPC would apply when there is a public sale of the property. Where property is sold under the provisions of the Partition Act, Rules do not apply and the court can extend the time for payment of deposit in exercise of its inherent powers. The strict compliance of the order 21 Rules 84 and 85 cannot be extended to the auction conducted under the provisions of Partition Act. The reason is that, where a stranger purchaser participates in a public auction, if the bid is accepted by the officer conducting sale is not accompanied by deposit of 25% of the purchase amount, it cannot be placed before the Court for formal acceptance and declaration of the purchaser. Another reason imposed for the requirement of initial deposit is immediately after bid is accepted, it safeguards against reckless and collusive bids.  Therefore, the requisite initial 25% deposit is to ensure that the participant in a public auction demonstrate his bonafides. The initial deposit of 25% is only to see that the auction purchaser is really interested in purchasing the property put in auction which ultimately leads to satisfaction of the decree under execution proceedings. The strict compliance of order 21 cannot be applied to the co-sharers who have invoked the provisions of Partition Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. Unlike a stranger purchaser in a public auction, a co-sharer himself has a pre-existing right in the suit schedule property. The parties are given an option to go for auction to see that the intrinsic value of the suit schedule property which is the subject matter of the partition suit does not get destroyed. Therefore, the intent of Legislature was to see that the joint family property is not lost to a stranger when one of the co-sharer who is willing to buy the share of other co-sharers and is able to retain the ancestral property by paying the money to the other co-sharers. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. The principle underlining Section 2 is that, partition cannot be allowed, if by such partition, the intrinsic value of the property sought to be partitioned would be destroyed. In such case, money compensation should be given in lieu of share to which a shareholder may be entitled.  Therefore, if the sale is directed under the provisions of Section 2 of Partition Act, then it presupposes that the said sale is not by a public auction. In such event, it is to be presumed that sale is confined only to co-sharers and therefore, it is not warranted by the provisions of CPC. The present auction is conducted under Section 3 of the Act of 1893, therefore, the incidents of ancestral property, unity of possession have to be taken into consideration. Ordinarily, the incidents of joint property and the rights of co-sharers in the joint family property are given a right in terms of Section 3 of the Act of 1893. Therefore, when a co-sharer or co-sharers apply for leave to buy at a value the share or shares of other co-sharers, the Court proceeds under Section 3 of the Act of 1893 thereby ordering for sale of share or shares to the shareholder who offers to pay the highest price.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Distinction between auction among joint family members and public auction under Partition Act</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. It is in this background, this Court is of the view that the provisions of Order 21 are held to be applicable to the auction conducted under the provisions of Section 3 of the Act of 1893 and they are to be deemed as directory and not mandatory. Therefore, the contention of the petitioners that the Court is not vested with discretion to extend time enabling respondent No.15 to deposit the balance amount cannot be acceded to. Respondent No.15 has deposited a sum of Rs.12,28,50,000/-. At this stage, if auction of the suit schedule property is set at naught, that would cause immense loss  and  prejudice  to  the  rights  of  respondent  No.15. Therefore, point No.1 formulated by this Court is answered in the negative.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Re: Point No.2: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. The petitioners\' grievance is that they were never afforded an opportunity to participate in the auction. The petitioners contention is that they were not aware of the auction till 14.12.2021. The learned Judge has examined the order sheet and also the materials placed on record. This contention is rightly negatived by the FDP Court. The FDP Court was justified in holding that nothing prevented the present petitioners from filing appropriate application to the FDP Court by filing a memo seeking advancement of the matter. The respondent No.15 has deposited the sum of Rs.12,28,50,000/-. The conduct of the petitioners has to be meticulously examined not only in the pending final decree proceedings but also before this Court. The matter was listed on 29.06.2022 and it was adjourned to 01.07.2022 at the request of the petitioners.  The petitioners voluntarily made a submission that they are willing to deposit the bid amount proportionate to the share of respondent No.15. The matter was again adjourned to 05.07.2022. On 05.07.2022, this Court heard the matter on merits<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22. The Courts approach involves expansion of conventional understanding of fairness so as to encompass not only fairness between the parties to the case, but also the need to deal with the case expeditiously and without disproportionate expense. The Court must consider whether it is in the interest of administration of justice the frivolous writ petition can be kept pending for consideration. This Court is also required to examine the petitioners conduct by reference to overall interest of justice. It is high time that this Court should not be unduly reluctant to dismiss the petitions where it appears to the Court that litigant is determined to subvert the adjudicative process by dragging on the matter. The Court should be slow to make decisions more particularly those who set out to use the court process as an instrument to keep the litigation pending and thereby try to derive advantage. The petitioners have clearly demonstrated in the present case that their object is to prevent that the matter does not attain finality and they are merely not purporting to invoke their right to access to the Court but their real object to see that the lis is not put to rest once for all. Therefore, this Court can reasonably draw a conclusion that petitioners on bald allegations have tried to see that the bid process does not attain finality and they are not ready to accept the bid and by filing the present writ petition are actually seeking to abuse the process of law. Therefore, this Court is of the view that they have not made out a case and no grounds are forthcoming to set aside the auction on the ground that petitioners were not afforded any opportunity to participate in the auction. The auction is concluded in the month of December, 2021 and we are in July, 2022. Till this date, petitioners have failed to quote their bid amount nor they are ready to deposit the amount proportionate to the share of respondent No.15 in terms of the preliminary decree i.e., 1/9th share out of the amount deposited of Rs.12,28,50,000/-. Therefore, no ground is made out. Accordingly, point No.2 is answered in the negative.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23. ORDER:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The writ petition is dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'cf0a8883a8cd7b7f147c601bd0eec5dd.JPG', '2655e7450b38ae112bc84aad19c99b90.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-25', 1, '', '', '2022-07-23 17:54:15', '2022-07-25 13:56:43'),
(1988, 'kymaUTX6bIcghtFpkU8xtiQFd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Range Forest Officer cannot register FIR in respect non-cognizable offences under the Karnataka Forest Act without obtaining prior permission from the Magistrate. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sri Panchakshari Vs State of Karnataka and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 6117 of 2017 decided on 6 July 2022.<br>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">FIR was lodged by the Range Forest Officer, Nelamangala, alleging that the petitioners have unloaded the unused stone pieces in the Forest Area of Adarangi reserve forest and destroyed the forest boundary and the same was registered for the offences punishable under Section 24(g) and (h) and Section 73 (d) of the Karnataka Forest Act, 1963 and Rule 25(1), (2)<span style=\"white-space: pre;\">	</span>and (3) along with Rule 41 (2) of the Karnataka Forest Rules, 1969 r/w Section2 (2) of the Karnataka Forest Act, 1963.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The learned counsel appearing for the petitioner submits that the offences alleged in the FIR registered against the petitioner and also the offences alleged against the petitioner in the chargesheet filed by the Nelamangala Range Forest Officer before the learned Magistrate are non cognizable and the registration of the FIR culminating in filing of the chargesheet without obtaining prior permission, as specified under Section 155 (2) of Cr.P.C., is impermissible. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4. Learned High Court Government Pleader appearing for the State submits that the petitioner having carried on mining activity on the forest boundary, has committed the aforesaid offences and the learned Magistrate has rightly taken cognizance of the said offences and sought for dismissal of the petition.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Section 105(B) of the Forest Act, 1963 specifies that all offences under Chapter - 10 and Section 104-A and Rules made there under shall be cognizable. The offences alleged against the petitioner -accused does not fall under Chapter 10 and Section 104-A of the Act. Hence, the offences alleged against the petitioner are non-cognizable.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 7. The Range Forest Officer before registering the FIR was required to obtain prior permission from the learned Magistrate as specified under Section 155 (2) of Cr.P.C.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 8. In the present case, the Range Forest Officer, concerned, without obtaining prior permission from the learned Magistrate as specified under Section 155 (2) of Cr.P.C., has registered the FIR and investigated the case and the same is held to be one without authority of law.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The criminal petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c0f3e460a56bc6ed181ab6e1ba600559.jpeg', 'c500c4f4ee204592e9613c056acc0aa4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-25', 1, '', '', '2022-07-23 18:13:51', '2022-07-25 12:27:50'),
(1989, 'hP2uNRcOWRR00pLzAlmlxxJel', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Director of a company who resigned by submitting required Form before the Registrar of Companies cannot be held liable for bouncing of cheque issued after his retirement. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sanjay Prabhu and others Vs Anushree Unikat.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 5795 of 2018 decided on 5 July 2022.<br>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>A private complaint is filed under Section 200 of Cr.PC for the offence punishable under Section 138 of N.I. Act alleging that the subject cheque dated 5.10.2014, which was issued by the accused - Company, represented by its Chairman, in favour of the complainant towards legally enforceable debt when presented for realization was dishonoured for want of fund. The learned Magistrate took the cognizance and issued summons to the petitioners. Taking exception to the same, the petitioners -accused No.3 and 5 are before this Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The learned counsel for the petitioners submits that the petitioner No.1 - accused No.3 ceased to be the director of the company on 31.7.2014 and petitioner No.2 - accused No.5 ceased to be the director of the company on 11.8.2014, when the subject cheque was issued in favour of the complainant. Hence, the complaint filed against the petitioners - accused Nos.3 and 5 is not maintainable.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. A perusal of Form No.DIR-11 submitted before the Registrar of Companies indicates that petitioner No.1 - accused No.3 ceased to be the director of the company on 31.7.2014 and petitioner No.2 - accused No.5 ceased to be the director of the company on 11.8.2014.  The cheque was issued on 5.10.2014 i.e<span style=\"white-space:pre\">	</span>after the petitioners ceased to be the directors of the company. Hence, as on the date of the cheque was issued, the petitioners - accused No.3 and 5 were not actively involved in the  affairs  of  the  company  so as to  implicate  them for the offence punishable under Section 138 of N.I. Act as specified under Section 141 of N.I. Act. Accordingly,<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i) Criminal petition is allowed</b><br></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a03a13f336735ec81794a7007b229c02.jpeg', '8978c6811c2c3587d5874743e452e548.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-26', 1, '', '', '2022-07-23 18:21:09', '2022-07-26 13:54:29'),
(1990, 'ORvcHiMN312tgRSCqGZQsuo9f', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Private complaint in respect of a cognizable offence without complying with Sections 154(1) and 154(3) of Cr.P.C is not maintainable. Karnataka High Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R.V. Nathan Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 1951 of 2018 decided on 5 July 2022. <br>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>A private complaint was filed under Section 200 of Cr.PC by the 2nd respondent for the offence punishable under Section 420 of IPC alleging that the petitioner executed an agreement of sale agreeing to sell a flat constructed by him in favour of the 2nd respondent and in pursuance of the said agreement, a registered sale deed was executed on 27.5.2013 in favour of the 2nd respondent. The petitioner refused to handover the vacant possession of the flat in question and also not returned the sale consideration received by him. The learned Magistrate referred the complaint under Section 156(3) of Cr.PC for investigation. The police after investigation submitted the charge sheet for the offence  punishable  under  Section  420  of  IPC.  The  learned Magistrate after accepting the charge sheet took cognizance and issued summons to the petitioner - accused. Taking exception to the same, this petition is filed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The learned counsel appearing for the petitioner submits that the offence alleged against the petitioner - accused is cognizable and the private complaint filed by the deceased respondent No.2 was not accompanied by an affidavit for having complied with Sections 154(1) and 154(3) of Cr.PC and as such the complaint was not sustainable in view of the decision of the Hon\'ble Apex Court in the case of Priyanka Srivastava and Ors. vs. State of U.P. and Ors. reported in (2015)6 SCC 287. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3. On the other hand, the learned High Court Government Pleader appearing for the respondent No.1 - State and the learned counsel for the 2nd respondent submit that the charge sheet material discloses the commission of offences alleged against the petitioner - accused and the learned Magistrate has rightly taken the cognizance for the aforesaid offence and the same does not call for interference and sought for dismissal of the petition.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. A perusal of the private complaint filed by the deceased respondent No.2 indicates that the allegation against the petitioner - accused by not handing over the possession of the flat in question and also by not returning the sale consideration has committed the offence of cheating. The offence punishable under Section 420 of IPC is cognizable offence. The private complaint filed by the deceased respondent No.2 was not accompanied by an affidavit for having complied with Sections 154(1) and 154(3) of Cr.PC and there is no averments in the complaint for having complied with the said provisions. The complaint filed by the deceased respondent No.2 is one held to be not maintainable in view of the decision of the Hon\'ble Apex Court in the case of Priyanka Srivastava and Ors (supra).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space:pre\">	</span>Criminal petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'dd5e09a0cbcd63218892f54c4868bbfa.jpeg', '534c08da23f1b640f11021c87289b933.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-25', 1, '', '', '2022-07-23 18:28:28', '2022-07-25 06:25:45'),
(1991, 'KDnRz6Szeb48LDAfRsTAS1E4g', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When a party to arbitration agreement approaches district Court of a State under Section 9, application under Section 11 can be filed only before the High Court of that State. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>General Manager East Coast Railway Rail Sadan and another Vs Hindustan Construction Co. Ltd<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4747 of 2022 decided on 22 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Orissa at Cuttack in Arbitration Petition No.10 of 2021 by which the High Court in exercise of powers under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’) has appointed an Arbitrator to adjudicate the dispute between the parties, the original informant – General Manager, East Coast Railway Rail Sadan and Anr., have preferred the present appeal. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. That thereafter the respondent vide letter dated 01.12.2019 requested the appellant to constitute the Arbitral Tribunal raising five claims. It appears that in terms of the Arbitration Agreement, arbitration proceedings were initiated by the appellants by appointing an arbitrator to adjudicate the dispute between the parties. That the Arbitrator issued notices calling upon the parties to submit their respective claims. The respondent herein sought time vide letter dated 02.04.2020 for filing the claim in view of Covid­19 Pandemic. The Arbitrator adjourned the proceedings to 03.04.2020. Instead of submitting the claim, vide letter dated 01.09.2020 the respondent questioned the validity of arbitral tribunal. Thereafter the respondent filed the Arbitration Petition No.10 of 2021 before the High Court of Orissa at Cuttack under Section 11(6) of the Act seeking appointment of an Arbitrator. The said application was opposed by the appellants relying upon Section 42 of the Arbitration Act and it was the case on behalf of the appellants that in view of Section 42 of the Arbitration Act, the application under Section 11(6) of the Act shall lie before the High Court of Andhra Pradesh at Amaravati as the respondent itself earlier filed Section 9 application before the Court at Vishakhapatnam. It was also submitted on behalf of the appellants that procedure dated 16.11.2016 upon which reliance has been placed by the respondent was superseded by GCC issued by Railway Board in November, 2018. Despite the above jurisdictional issue raised and without addressing on the jurisdiction of the Orissa High Court, by the impugned judgment and order the High Court of Orissa at Cuttack has appointed the Arbitrator solely by observing that since the appellant, East Coast Railways in principle, is not opposing the appointment of an Arbitrator there is little purpose served in relegating the respondent (original petitioner) to the appropriate High Court as that will only delay the adjudication of the disputes.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. We have heard Shri K.M. Natraj, learned ASG appearing on behalf of the appellants and Shri Amit Dubey, learned Counsel appearing on behalf of the respondent. We have gone through the impugned judgment and order passed by the High Court. A specific objection was raised by the appellant herein before the High Court on the entertainability and/or maintainability of the application under Section 11(6) of the Arbitration Act before the Orissa High Court. Reliance was placed on Section 42 of the Arbitration Act and it was submitted on behalf of the appellants that as the respondent ­ claimant had initiated proceedings under Section 9 of the Arbitration Act in the Court at Vishakhapatnam, only the High Court of Andhra Pradesh at Amaravati would have jurisdiction to entertain the application under Section 11(6) of the Act. Without deciding the said issue which goes to the root of the jurisdiction of the High Court of Orissa at Cuttack, the said High Court by the impugned order has entertained the application under Section 11(6) of the Act and has appointed the sole arbitrator by observing that since the appellants – East Coast Railway, in principle, has not opposed the appointment of an arbitrator, there is little purpose served in relegating the original petitioner to the concerned High Court as that will only delay the adjudication of the disputes. The appellants might not have opposed the appointment of an arbitrator (though the fresh appointment of an Arbitrator was also opposed by the appellants herein) by that itself it will not confer the jurisdiction upon the High Court if otherwise, the High Court had no jurisdiction.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7.1 It is not in dispute that before filing an application under Section 11(6) of the Act before the High Court of Orissa at Cuttack, the respondent – claimant moved an application before the Court at Visakhapatnam under Section 9 of the Arbitration Act. In that view of the matter considering Section 42 of the Arbitration Act, the High Court of Andhra Pradesh at Hyderabad alone would have jurisdiction to decide the subsequent applications arising out of the Contract Agreement and the further arbitral proceedings shall have to be made in the High court of Andhra Pradesh at Amaravati alone and in no other court. In that view of the matter the High Court of Orissa at Cuttack has committed a serious error in entertaining the application under Section 11(6) of the Act before it and appointing the sole arbitrator.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. In view of the above and for the reason stated above, the present Appeal Succeeds. The impugned judgment and order passed by the High Court of Orissa at Cuttack in Arbitration Petition No.10 of 2021 and appointing the sole arbitrator is hereby quashed and set aside solely on the ground that the High Court of Orissa at Cuttack would have no jurisdiction to entertain the application under Section 11(6) of the Act with respect to the contract agreement for which the respondent claimant earlier initiated the arbitration proceedings under Section 9 of the Arbitration Act in the Court at Vishakhapatnam. Present Appeal is accordingly Allowed. However, it is observed that it will be open for the respondent claimant to submit/move an application under Section 11(6) of the Act before the competent High Court having jurisdiction namely the High Court of Andhra Pradesh at Amaravati and if such an application is made before the High Court of Andhra Pradesh at Amaravati within a period of four weeks from today, the same be dealt with and considered in accordance with law and on its own merits at the earliest</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The Present Appeal is Allowed to the aforesaid extent. However, in the facts and circumstances of the case, there shall be no order as to costs</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2bfa33e484c5b568c0d1598476526ddf.jpeg', '384aa1522757616abcad4f13980ccc14.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-26', 1, '', '', '2022-07-25 17:45:40', '2022-07-26 12:37:24');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2005, 'uxMOlwyuFDL8TX3IuKi5PrOdL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'In the matter of grant of exemptions in tax matters, latitude has to be given to the decision making\'. Supreme Court while upholding denial of Service Tax exemption to Haj Group Organizers/Private Tour Operators.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>All India Haj Umar Tour Organizer Association Mumbai Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 755 of 2020 decided on 26 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A.M. Khanwilkar, Justice Abhay S. Oka and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The broad question involved in this group of writ petitions\r\nis about the liability of Haj Group Organizers (HGOs) or Private\r\nTour Operators (PTOs) to pay service tax on the service rendered\r\nby them to Haj pilgrims for the Haj pilgrimage.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>FACTUAL ASPECTS</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The Haj pilgrimage is undertaken by thousands of pilgrims\r\nfrom India, either through the Haj Committee of India (for short,\r\n‘the Haj Committee’) or HGOs. There is a bilateral treaty between\r\nIndia and the Kingdom of Saudi Arabia. As per the said bilateral\r\narrangement, the Haj pilgrimage can be undertaken from India\r\nonly through the Haj Committee or HGOs.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The service tax regime was introduced in India in the year\r\n1994 under the provisions of the Finance Act, 1994 (for short\r\n‘the Finance Act’). Initially, very few services were made subject\r\nto payment of service tax. However, by subsequent Finance Acts,\r\na large number of services were added to the list from time to\r\ntime. The total number of services subjected to service tax\r\nexceeded 100. A negative list regime was introduced by Act No.23\r\nof 2012 with effect from 1st July 2012. By Act No.23 of 2012,  <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Sections 66-B and 66-C were added. Section 66-B is the charging\r\nSection which provided that there shall be a levy of service tax at\r\nthe rate of 12% on the value of all services other than those\r\nspecified in the negative list. By amending Section 66-B, the\r\npercentage of service tax was enhanced to 14%. Section 66-C\r\nconfers power on the Central Government to frame rules for\r\ndetermining the place where such services are provided or\r\ndeemed to have been provided or agreed to be provided or\r\ndeemed to have been agreed to be provided. Accordingly, the\r\nPlace of Provision of Services Rules, 2012 (for short, ‘the 2012\r\nRules’) were framed which came into force with effect from 1st\r\nJuly 2012. On 20th June 2012, Mega Exemption Notification\r\nno.25 of 2012–ST (for short, ‘the Mega Exemption Notification’)\r\nwas issued containing several exemptions. Paragraph 5(b) of the\r\nMega Exemption Notification provided for the exemption on\r\nservices by a person by way of conduct of any religious ceremony.\r\nParagraph 5A of the Mega Exemption Notification provided for\r\nthe exemption to services by specified organisations in respect of\r\na religious pilgrimage facilitated by the Ministry of External\r\nAffairs of the Government of India, under bilateral arrangement.\r\nThe Mega Exemption Notification defines specified organisations </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as Kumaon Mandal Vikas Nigam Limited, a Government of\r\nUttarakhand Undertaking and the Committee or State\r\nCommittee as defined in Section 2 of the Haj Committee Act,\r\n2002 (for short, ‘the 2002 Act’). With effect from 1st July 2017,\r\nunder the provisions of the Integrated Goods and Services Tax\r\nAct, 2017 (for short, ‘the IGST Act’), the same service tax regime\r\nwas continued. Identical exemption notification dated 28th June\r\n2017 (for short, ‘the IGST Exemption Notification’) was issued by\r\nexercising the powers under the IGST Act. Identical Exemption\r\nNotification was also issued on the same date (for short, ‘the GST\r\nExemption Notification’) under the Central Goods and Services\r\nTax Act, 2017 (for short, ‘the GST Act’).</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Most of the writ petitions in the current batch of petitions\r\nhave been filed by various organisations representing\r\nHGOs/PTOs. Only one petition, i.e. Writ Petition (C) No.1329 of\r\n2020, has been filed by an individual petitioner who desires to\r\nundertake the Haj pilgrimage. Most of the petitions challenge the\r\naforesaid orders rejecting representations. In some of the\r\npetitions, a declaration has been claimed that the provisions of\r\nthe laws relating to service tax are not applicable to services\r\nrendered by HGOs and PTOs to Hajis for performing the religious\r\nactivity of Haj/Umrah. In some of the petitions, there is a\r\nchallenge to the validity of Rules 8 and 14 of the 2012 Rules.\r\nHowever, submissions have not been canvassed on the issue of\r\nvalidity. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>APPLICABILITY OF EXEMPTION NOTIFICATION\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>46. The question is whether the exemption granted under the\r\nMega Exemption Notification will apply in this case. As\r\nmentioned earlier, the Exemption Notifications under the IGST\r\nand the GST Acts so far as the Haj pilgrimage is concerned, are\r\npari materia with the Mega Exemption Notification. It is,\r\ntherefore, necessary to advert to the Mega Exemption\r\nNotification. The Mega Exemption Notification contains a list of\r\nservices which are exempted from service tax leviable under\r\nSection 66B</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">47. Ex facie, Clause 5A will have no application as it is\r\napplicable to services by specified organisations in respect of a\r\nreligious pilgrimage facilitated by the Ministry of External\r\naffairs of the Government of India under bilateral arrangement.\r\nThe specified organisations have been defined in paragraph\r\n1(1)(a)(zfa) of the Mega Exemption Notification. Specified\r\norganisations, as stated therein, are only two categories of\r\norganisations. The first one is Kumaon Mandal Vikas Nigam\r\nLimited, a Government of Uttarakhand Undertaking and Haj </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Committee or State Committee under the said Act of 2002. The\r\nHaj Committee renders services in relation to the Haj pilgrimage\r\nwhich is facilitated by the Ministry of External Affairs of the\r\nGovernment of India under the bilateral arrangement with the\r\nKingdom of Saudi Arabia.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>51. Now, adverting to sub-clause (b) of Section 5, we find that\r\nthe exemption has been granted in respect of services by a\r\nperson by way of conduct of any religious ceremony. Thus, it\r\nrefers to a person who is naturally the service provider. The subClause (b) applies when the service provider renders service by\r\nway of conduct of any religious ceremony. The notification does\r\nnot say that service provided to the service receiver to enable\r\nhim to conduct religious ceremony, has been exempted. It only\r\nexempts service provided by way of conduct of any religious\r\nceremony.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>52. It must be noted here that Clause 5A of the same Mega\r\nExemption Notification grants exemption to the service <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">rendered by Haj Committees in respect of a religious pilgrimage.\r\nThus, the same Mega Exemption Notification makes a clear\r\ndistinction between ‘religious ceremony’ and ‘religious\r\npilgrimage’. As Haj Committees render services only in respect\r\nof Haj pilgrimage, the religious pilgrimage referred to in Clause\r\n5A as regards the Haj Committee, is Haj pilgrimage. Thus, the\r\nMega Exemption Notification exempts the two specified\r\norganisations that render services in respect of a religious\r\npilgrimage. This exemption under Clause 5A is not applicable\r\nto HGOs as the HGOs are not the specified organizations. If the\r\nintention and object was to provide service tax exemption to\r\nservices provided by HGOs in respect of religious pilgrimage,\r\nthe notification would have specifically provided so. However,\r\nthe exemption as regards religious pilgrimage has been confined\r\nonly to the services rendered by the specified organisations in\r\nrespect of a religious pilgrimage facilitated by the Ministry of\r\nExternal Affairs of the Government of India under a bilateral\r\narrangement. An exemption has not been provided to any other\r\nservice provider rendering service in respect of a religious\r\npilgrimage. Whereas, sub-Clause (b) of Clause 5 is applicable to\r\nservices rendered by way of conduct of any religious </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“ceremony”. A clear distinction has been made between a\r\nservice provided in respect of religious pilgrimage and a service\r\nrendered by way of conduct of any religious ceremony. We may\r\ngive an example of a person engaging a priest to perform certain\r\nreligious ceremonies or ritual or puja on his behalf. In such a\r\ncase, the priest renders service by way of conducting a religious\r\nceremony. The service rendered by HGOs to Haj pilgrims is to\r\nfacilitate them to reach at the destination to perform\r\nrituals/religious ceremonies. No religious ceremony is\r\nperformed or conducted by the HGOs. The religious ceremony\r\nis conducted by Haj pilgrims or by someone else in the Kingdom\r\nof Saudi Arabia. According to us, there is absolutely no\r\nambiguity in sub-clause (b) of clause 5 and therefore, there is\r\nno occasion to apply the test laid down by this Court in the case\r\nof Mother Superior Adoration Convent.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>53. The submission of Shri Datar, learned senior counsel was\r\nthat in Haj pilgrimage there are six entities involved which\r\ninclude concerned Ministry of the Kingdom of Saudi Arabia, the\r\nGovernment of India, Tawafa establishments, Molliums,\r\napproved HGOs and Haj pilgrims. His submission is that the\r\nword ‘person’ used in sub-clause (b) of clause 5 of the exemption <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">notification will also include the plural of the term ‘person’. The\r\nsubmission is that a Haj pilgrim will fall in the category of\r\n‘person’. According to us, this submission is completely\r\nfallacious. The word ‘person’ used in Clause 5 refers to a service\r\nprovider and not to the receiver of service. Even assuming that\r\nsome services are provided by the Kingdom of Saudi Arabia, the\r\nGovernment of India, Tawafa establishments or Maollims to Haj\r\npilgrims from India, it may be noted here that they are not\r\nsubjected to payment of service tax. The service tax is levied on\r\nHGOs being service providers. The real question is whether\r\nHGOs are rendering service by way of conduct of any religious\r\nceremony. As held earlier, HGOs have no role to play in actual\r\nconduct of religious ceremonies which are a part of Haj\r\npilgrimage. The service rendered by HGOs is by way of providing\r\nair bookings, arranging for the stay of Haj pilgrims in Saudi\r\nArabia, arranging for food while they are in Saudi Arabia,\r\narranging for foreign exchange and arranging registration with\r\nTawafa establishment in the Kingdom of Saudi Arabia.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>CONSIDERATION OF THE ISSUE OF DISCRIMINATION\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>56. The other issue which arises for consideration is about the\r\nsubmissions based on discrimination made under the Mega\r\nExemption Notification between the services rendered by\r\nspecified organisations and the services rendered by other\r\nservice providers in respect of religious pilgrimage. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>58. Under Section 27 of the 2002 Act, it is the duty of the State\r\nCommittees to implement the policies and directions of the Haj\r\nCommittee and perform prescribed duties. The functions and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">duties assigned to the Haj Committee need to be considered in\r\nthe context of the preamble of the 2002 Act. The object is to\r\nestablish Committees for making arrangements for the Muslims\r\nfor the pilgrimage of Haj. The HGOs are otherwise the tour\r\noperators carrying on business of arranging tours. They get\r\nthemselves registered as HGOs. As can be noticed from Section\r\n9, the functions of the Haj Committee are not confined only to\r\nmaking arrangements for enabling the pilgrims to undertake the\r\nHaj pilgrimage. Its first duty is to collect and disseminate the\r\ninformation useful to the pilgrims and to arrange orientation and\r\ntraining programmes for the pilgrims. It is the duty of the Haj\r\nCommittee to give relief to pilgrims and visitors. It is its duty to\r\ngenerally look after the welfare of the pilgrims. The Haj\r\nCommittee has an important duty to assist the pilgrims in\r\ndistress. One of the duties is to finalize the Annual Haj Plan with\r\nthe approval of the Central Government and to execute the\r\nsame. The Haj Committee is under an obligation to publish\r\nproceedings of the Committee. Under Section 30, it is the duty\r\nof the Committee to create Central Haj Fund. Similarly, under\r\nSection 32, the State Committees are under an obligation to\r\ncreate State Haj Funds. The Central Government has the power </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to reconstitute the Haj Committee and to remove the\r\nChairperson, the Vice-Chairperson and the Members of the\r\nCommittee. There is a similar power vesting in the State\r\nGovernment in respect of the State Committees. Thus, the Haj\r\nCommittees are statutory bodies working under the control and\r\nsupervision of the Government. The Haj Committees are the\r\nagencies and instrumentalities of the State. Apart from\r\narranging visits of Haj pilgrims for the purposes of Haj\r\npilgrimage, there are important statutory duties assigned to the\r\nHaj Committee which we have set out above. As per clause (b) of\r\nSection 30, money collected from pilgrims for the performance\r\nof the Haj pilgrimage becomes a part of the Central Haj Fund,\r\nwhich can be utilized only for the purposes specified under\r\nSection 31. The funds can be used only for the purposes of\r\npaying salary and allowances to the officers and employees of\r\nthe Committee and for payment of charges and expenses\r\nincidental to the objects specified in Section 9. Other\r\nexpenditure can be made only with the approval of the Central\r\nGovernment. Therefore, when the Haj Committee facilitates the\r\nHaj pilgrims by making arrangements for their visit to the\r\nKingdom of Saudi Arabia for undertaking the Haj pilgrimage, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">there is a complete absence of profit motive. On the contrary, the\r\nmoney received by the Haj Committee from the Haj pilgrims goes\r\nto the statutory fund, which in turn, has to be used inter alia for\r\nthe benefit of Haj pilgrims. Even the budget of the Haj Committee\r\nis required to be submitted to the Central Government. Thus,\r\nthe Central Government has all pervasive control over the Haj\r\nCommittee. The State Governments have the same control over\r\nthe State Committee. On the other hand, there are no onerous\r\nduties attached to HGOs. They earn profit by rendering service\r\nto Haj pilgrims. Except for the stringent conditions for the\r\nregistration, the Government has no control over HGOs.</span><span style=\"font-size: 12pt;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>59.... <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In fact, what is observed in paragraph 12 is in the context\r\nof the controversy before this Court. It can be seen from\r\nparagraph 17 of the said decision that the controversy was about\r\nthe stringent conditions imposed for the registration of PTOs.\r\nThe observations in paragraph 12 are in that context. This Court\r\nheld that the object of putting such stringent conditions is to\r\nensure that proper service is rendered to the Haj pilgrims. In this\r\ncontext, the aforesaid observation has been made that the\r\nreasonable profit to PTOs is incidental. It is not the case of the\r\nHGOs in these petitions that they are doing any kind of\r\ncharitable work by providing service to Haj pilgrims. It is not\r\ntheir case that they are not earning any profit while providing a\r\npackage to Haj pilgrims. They are rendering the services with the\r\nobject of earning profit.\r\n60. Thus, the Haj Committee is a statutory committee which is\r\nentrusted with various functions for the welfare of Haj pilgrims.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">60. Moreover, the profit motive is completely absent in the case of\r\nthe Haj Committee. The money received by the Haj Committee\r\nfrom the pilgrims for rendering service goes to a statutory fund\r\ncreated under the 2002 Act which is to be used only for the\r\npurposes specified in the 2002 Act. That is the reason why the\r\nHaj Committee constitutes a class in itself when it comes to\r\nrendering service to Haj pilgrims. It is a separate class as\r\ndistinguished from HGOs. There is an intelligible differentia for\r\nthis classification. The object of exemption in paragraph 5A of\r\nthe Mega Exemption Notification is to promote the activity of the\r\nspecified organisations of rendering service for the religious\r\npilgrimage. Both the organisations which are specified in the\r\nnotification are statutory organisations over which the\r\nGovernment has an effective control. Moreover, the service\r\nrendered by the specified organisations to the devotees is not\r\nwith the object of making profit. Therefore, there is a nexus\r\nbetween the classification made and the object sought to be\r\nachieved by granting exemptions.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>63. Strong reliance was placed by the Revenue on the decision\r\nof this Court in the Case of M. Jhangir Bhatusha & Ors. The\r\nsubject of this petition was an order passed by the Government\r\nunder sub-Section (2) of Section 25 of the Customs Act, 1962.\r\nBy the said order, import of the specified oils by the State\r\nTrading Corporation was made liable to customs duty at the rate\r\nof 5% only and total exemption from auxiliary and additional\r\nduty was granted. On the other hand, import of the same\r\nspecified oils by private importers was made liable to customs\r\nduty at the rate of 12.5% ad velorem. Discrimination was alleged\r\nin this case by contending that there is no rational basis for\r\ntreating State Trading Corporation differently.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the matter of grant of exemptions in tax matters, latitude has\r\nto be given to the decision making. Ultimately, it is also a matter\r\nof policy. We have already held that there is a rational basis for\r\nclassifying specified organisations as a class and keeping out the\r\nPrivate Tour Operators from exemption under Clause 5A. We will\r\nhave to show judicial self-restraint in this case.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>65. Hence, we are of the considered view that the arguments\r\nbased on discrimination have no substance at all, as HGOs and\r\nthe Haj Committees do not stand on par and in fact, the Haj\r\nCommittees constitute a separate class by themselves, which is\r\nbased on a rational classification which has a nexus with the\r\nobject sought to be achieved.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>66. Therefore, there is no merit in the challenge in the\r\npetitions. We have already clarified that we have not dealt with\r\nthe issue of extra-territorial operation of the service tax regime\r\nwhich is kept open to be decided in appropriate proceedings, as\r\nrequested by the parties.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>67. We are, therefore, of the view that the petitions are devoid\r\nof merit and the same are, accordingly, dismissed. No order as\r\nto costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4cc56d8cae29855c26138f946438769a.jpeg', 'f85b0ba6d12e4364ab15d7610ba403ce.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-28', 1, '', '', '2022-07-27 17:46:28', '2022-07-28 10:28:59'),
(1993, 'OVYTp17KVyMdzte3syiyuYFNe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'After taking benefit under alternate monetary scheme offered by the Government, legal representatives of the deceased employee cannot seek compassionate appointment. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Manju Devi Vs Hindustan Petroleum Corporation Ltd.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. (C) 5538 of 2015 decided on 14 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Chandra Dhari Singh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The brief facts of the case are that:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Petitioner is the wife of Sh. Mahinder Paswan, who was an\r\nemployee of Hindustan Petroleum Corporation Ltd,\r\nMarketing Division and expired on 5th April 2008, while in\r\nservice due to a Road accident.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. On 5th May 2008, the Petitioner gave an option letter to the\r\nRespondent Corporation, wherein out of three options\r\navailable, she took an option under Rule 7(b) (ii)/ 8A of the\r\n“Hindustan Petroleum Corporation Ltd. Employee\'s\r\nSuperannuation Benefit Fund Scheme” (hereinafter „the\r\nScheme?) wherein she was entitled to the benefits as her\r\ndeceased husband would have received had he\r\nsuperannuated.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. Vide letter dated 22nd July 2008, the Respondent Corporation\r\ninformed the Petitioner that since 1998, they have not been\r\noffering employment to dependants of any of the deceased\r\nemployees for compassionate employment.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. On 9th September 2008, the Respondent Corporation issued a\r\nletter to the petitioner advising her to change her Scheme\r\nOption from 7(b) (ii)/ 8A to either 7(a) or 7 (b)(i).<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">5. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">On 11th December 2013, the Respondent Corporation in their\r\nreply informed the petitioner that she was given hundred\r\npercent of last drawn salary as per the option taken by her\r\nunder the Scheme and hence, her son is not entitled to the\r\nbenefit for the compassionate employment.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. In the instant case, the petitioner is seeking compassionate\r\nemployment for her son under the Rule 7(b)(ii)/8A of the Scheme.\r\nThe petitioner sought the benefits of the scheme in the year 2008,\r\nafter her husband expired, however, the scheme was withdrawn and\r\ndiscontinued by the respondent corporation in the year 2004. The fact\r\nof the discontinuation of the scheme was duly intimated to the\r\npetitioner vide letters dated 7th August 2008 and 29th June 2012.\r\nDespite the communications, the petitioner sought to avail the\r\nbenefits of the scheme which in fact did not exist at that time.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n26. Moreover, the petitioner was given an option to choose from\r\nthe three Schemes of the Respondent Corporation when she first <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">approached it after her husband expired and she, with her own will\r\nand volition, opted for the benefits under Rule 7(b)(ii)/8A of the\r\nScheme. By virtue of the Scheme opted by her, she was entitled to\r\n100 per cent benefit as her husband would have received, had he\r\nsuperannuated. Accordingly, the petitioner had received a sum of\r\nover Rs. 58 lakhs. It was only after having opted for benefits under\r\nRule 7(b)(ii)/8A of the Scheme, that she approached Respondent\r\nCorporation seeking compassionate employment for her son. It is\r\nfound that after waiving the other options as given to her by the\r\nRespondent Corporation, she could not have sought to avail the\r\nbenefit at a later stage.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>27. The whole object behind granting compassionate employment\r\nis to enable the family to tide over the sudden crisis. Appointment on\r\ncompassionate ground offered to a dependant of a deceased employee\r\nis an exception to the said rule. It is a concession and not a right. The\r\npetitioner had availed the monetary benefits, under the scheme opted\r\nby her, to the tune of Rs. 58 lakhs. Having received such benefits, the\r\nfamily of the deceased service man would have survived and revived\r\nfrom the crisis that took upon them by surprise. After the effects of\r\nsuch crisis mitigated by the reason of her opting the scheme under\r\nRule 7(b)(ii)/8A, the petitioner did not have the entitlement to\r\napproach under the Scheme of compassionate employment since the\r\nvery purpose of the scheme was surpassed.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">29. In light of the arguments advanced, material perused as well as\r\nthe fact that the respondent has withdrawn the scheme under which the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner is seeking benefit and that she, with her own free will, chose\r\nto avail benefits of another scheme, by which she has received a sum\r\nof over Rs. 58 lakhs, this Court does not find any cogent reason or\r\nground to allow the instant petition and grant the relief as prayed for\r\nby the petitioner. The Respondent Corporation after computation has\r\nalready paid the petitioner Rs. 58,88,990/-, including last drawn salary\r\nfrom May 2008 to January 2014, EPF, Gratuity, Annuity, Pension\r\nGPAI etc., and no further benefit remains to be reaped by the\r\npetitioner from the Respondent Corporation.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>30. Keeping in view the aforesaid discussions, the instant petition is\r\ndismissed for being devoid of any merit.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>31. Pending application, if any, also stands disposed of.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5ede53602c7d0b44e8a90d782600a13a.jpeg', 'd94c06e5c57811f17ecfd5c776b97965.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-26', 1, '', '', '2022-07-25 19:08:37', '2022-07-26 10:17:45'),
(1994, 'lku35ACXSwOrmAsXXvg8TpJG8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘’Our Constitution and the constitutional Courts will protect the new age ‘Karnas’ so they can live like any other citizen with dignity and pride\'\'. Kerala High Court while upholding right to mention only mother’s name in birth certificate. ', '<p class=\"MsoNormal\"><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Xxxx Vs The Register\r\nof Births and Deaths Pathanamthitta Municipality.</b><br></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: Calibri, sans-serif;\">WP (C) 4262 of 2022\r\ndecided on 19 July 2022.<br></span></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: Calibri, sans-serif;\">Justice P.V.\r\nKunhikrishnan.</span></b></p><p class=\"MsoNormal\"><span style=\"font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: Calibri, sans-serif;\">4. In the light of\r\nthe above decisions, the facts of the present case are to be considered. To\r\nkeep the anonymity of the son and the mother, who are the petitioners in this\r\nwrit petition, the 1st petitioner son is referred to as \"X\" and the\r\n2nd petitioner mother is referred to as \"Y\". The name of the father\r\nof the 1st petitioner is given differently in three different documents, and\r\ntherefore, the father\'s name is referred as \"Z\", \"Z1\" and\r\n\"Z2\".</span></b></p><p class=\"MsoNormal\"><span style=\"font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: Calibri, sans-serif;\">5. The 1st petitioner\r\nwas conceived by the 2nd petitioner, the mother of the 1st petitioner, while\r\nshe was a minor under mysterious circumstance by an unidentified </span></b><b><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">person. Therefore the father\'s name of\r\nthe 1st petitioner happened to be recorded differently in different documents.\r\nThe name of the mother of the 1st petitioner is correctly recorded in all\r\nidentification and education certificates. In the birth registration\r\ncertificate of the 1st petitioner before the Registrar of Births and Deaths,\r\nPathanamthitta, the father\'s name is recorded as \"Z\". Ext.P1 is the\r\ncopy of the birth certificate. In the Secondary School Leaving Certificate\r\n(SSLC), the name of the father of the 1st petitioner is recorded as\r\n\"Z1\". Ext.P1(2) is the copy of the certificate(SSLC). In the Higher\r\nSecondary Examination (HSE) Certificate, the parents\' names are not recorded on\r\nthe face. Ext.P1(3) is the copy of the HSE certificate. In the Election ID,\r\nmother\'s name is recorded on the face. Ext.P1(4) is the copy of the Election ID\r\ncard of the 1st petitioner. In AADHAR card, name of the father of the 1st\r\npetitioner is recorded as \"Z2\". Ext.P1(5) is the copy of the AADHAR\r\ncard. In the driving licence, the name of the mother alone is recorded on the\r\nface. Ext.P1(6) is the copy of the driving licence of the 1st petitioner.\r\nIn the card showing the Permanent Account Number (PAN), name of the mother,\r\n\"Y\" alone is recorded on the face. In the Passport, the name of the\r\nfather is recorded as \"Z3\". The same is produced as Ext.P1(8).</span></b></p><p class=\"MsoNormal\"><span style=\"font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">6. Since the paternal name of the 1st\r\npetitioner appears differently in different documents and the name is\r\nuncertain, the petitioner did not want the father\'s name to be recorded in any\r\nof the documents and certificates. Hence the 1 st petitioner sent a request to\r\nthe 1st respondent as well as respondents 2 to 8 requesting to delete the name\r\nof the father of the petitioner appears in all identity certificates, records,\r\nand databases concerning the 1st petitioner and after deleting the name of the\r\nfather, to issue new corrected identity cards and certificates. Ext.P1 is the\r\nrequest submitted by the petitioner.</span></b></p><p class=\"MsoNormal\"><span style=\"font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">7. The 1st respondent is the statutory\r\nauthority under the Central Act, namely The Registration of Births and Deaths\r\nAct, 1969 (for short, the Act 1969). The 1st respondent is chronologically the\r\nfirst authority to record the name of the parents. Section 15 of the Act\r\n1969 gives power to the 1st respondent to correct the entries. The State of\r\nKerala framed Rules as per the Act, which enables such correction and deletion\r\nof errors that are wrongly or improperly made. Moreover, the Government of\r\nIndia, as per Ext.P3 letter, circulated to all Chief Registrar of Births and\r\nDeaths in the country directing that the name of the single parent will be\r\nwritten in the birth record, and the name of the other parent must be left\r\nblank if such requests are made. This letter was issued in the light of the\r\njudgment of the Apex Court in ABC v. State (NCT of Delhi) [2015 (10) SCC 1]. In\r\nthe light of the law declared by the Apex Court and clarified by the direction\r\nin Ext.P3, it is the case of the petitioner that the 1st respondent is bound to\r\nexpunge the name of the father from the Birth Register and based on which the\r\nother respondents are also bound to correct the records in tune with the same.</span></b></p><p class=\"MsoNormal\"><span style=\"font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\"><b><span style=\"font-size: 12pt; font-family: Calibri, sans-serif;\">12. As per Rule 11(2), if any person asserts that any entry in the\r\nregister of births and deaths is erroneous in substance, the Registrar may\r\ncorrect the entry in the manner prescribed under Section 15 upon production by\r\nthat person, a declaration setting forth the nature of the error and true facts\r\nof the case made by two credible persons having knowledge of the facts of the\r\ncase. It is also stated that notwithstanding anything contained in sub-rule (1)\r\nand subrule (2) of Rule 11, the Registrar shall make report of any correction\r\nof the kind referred to therein, giving necessary details to the State\r\nGovernment or the officer specified in this behalf. Therefore, on a combined\r\nreading of Section 15 of the Act 1969 and Rule 11 of the Rules 1999, it is\r\nclear that a correction of an entry in the Register of Births and Deaths is\r\npossible in certain circumstances mentioned in it.</span></b></p><p class=\"MsoNormal\"><b><span style=\"font-size: 12pt; font-family: Calibri, sans-serif;\">13. The Apex Court in ABC’s case (supra) also considered a similar\r\nissue. The apex court was considering </span></b><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">the legal\r\nconundrum as to whether it is imperative for an unwed mother to specifically\r\nnotify that the putative father of the child to whom she has given birth to in\r\nher petition for appointment as the guardian of her child</span></b></p><p class=\"MsoNormal\"><span style=\"font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\"><b><span style=\"font-size: 12pt; font-family: Calibri, sans-serif;\">14. Similarly, in XXXX’s case (supra), this Court was considering the\r\nsituation of a single parent/ unwed mother getting conceived by Assisted\r\nReproductive Technology (ART). In that case, this Court directed the Government\r\nto bring out a separate form, which does not contain a field requiring the name\r\nand other details of the father.</span></b></p><p class=\"MsoNormal\"><b><span style=\"font-size: 12pt; font-family: Calibri, sans-serif;\">18. From the above discussions, it is clear that it is the right of a\r\nperson to include his mother\'s name alone in the birth certificate, identity\r\ncertificates and other documents. As I observed earlier, there are children of\r\nrape victims and children of unwed mothers in this country. Their right of\r\nprivacy, dignity and liberty cannot be curtailed by any authority. The mental\r\nagony of such person is to be imagined by every citizen of this country while\r\nintruding into their privacy. In some cases it will be a deliberate act and in\r\nother cases it may be by mistake. But the State should protect citizens of all\r\nsuch kind as equal to other citizens without disclosing their identity and\r\nprivacy. Otherwise, they will face unimaginable mental agonies.</span></b></p><p class=\"MsoNormal\"><b><span style=\"font-size: 12pt; font-family: Calibri, sans-serif;\">19. The mental agony faced by a person, who does not know their parents\r\nis picturised by the character of “Karna” in the ancient epic “Maharabharatha”.\r\n“Karna\" was not aware of his parents till his mother \"Kunthi\r\nDevi\" told him about the truth. The mental agony and insult faced by\r\n\"Karna\" is </span></b><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">picturised way back in the ancient time itself by \"Vedavyasa\"\r\nin \"Mahabharatha\". In tune with the above story, Mali Madhavan Nair\r\nwrote a story (Aattakadha) in \"Kathakali\" which is popularly known as\r\n\"Karnashapadham\". The mental agony and insult faced by \"Karna\"\r\nis picturised in a \"Padham\" (verse) of \"Karnashapadham\".</span></b></p><p class=\"MsoNormal\"><span style=\"font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\"><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">21. When\r\nthe above “Padham” was sung by the legends like Late Kalamandalam Hyderali and\r\nKalamandalam Gopi (who was honoured by Padmasree by the country) on stage to\r\nact the scene, even a person who is not a lover of “Kathakali\" would find\r\ntears in their eyes. We want a society with no such characters like\r\n\"Karna,\" who curses his life because of the insult he faced for not\r\nknowing the whereabouts of his parents. We want the real brave\r\n\"Karnas\' who was the real hero and fighter in \"Mahabharatha\".\r\nOur Constitution and the constitutional Courts will protect all of them and the\r\nnew age “Karnas” can live like any other citizen with dignity and pride.</span></b></p><p class=\"MsoNormal\"><span style=\"font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\"><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">21. In the\r\nlight of the above discussions, the prayers in this writ petition are to be\r\nallowed. </span></b><span style=\"font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p></o:p></span></p><p>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n</p><p class=\"MsoNormal\"><span lang=\"EN-US\"> Photo Courtesy. FreeFlow</span></p>', '27f3412894688d49d77b54fe1fdbaf18.JPG', '98d075ccf217a1244f641929f3dc31e2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-26', 1, '', '', '2022-07-25 21:51:22', '2022-07-26 06:24:53');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1995, 'CuPGg6yP5qtesj9XAPR9paLcB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'If a particular procedure in filling up application form is prescribed, the application should be filled up as per that procedure alone. Using different languages in application form and OMR sheet results in disqualification. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Union of India and others Vs Mahendra Singh.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4807 of 2022 decided on 25 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Gupta and Justice Vikram Nath.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The Employment Notice No. 1/2011 was published to fill up 11952\r\nposts of Constables in the Railway Protection Force2\r\n. The process of\r\nselection comprised of written examination consisting of 120\r\nmultiple choice objection type questions of one mark each and of 90\r\nminutes duration. The candidates had to obtain at least 35% marks <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(30% in the case of Scheduled Caste and Scheduled Tribe\r\ncandidates) in the written examination for being considered for\r\nother Test such as Physical Efficiency Test3\r\n. Para 8 Clause B of the\r\nAdvertisement gives the requirement of an application form and\r\nalso that the said application should be filled up by the candidates in\r\ntheir own handwriting, in Hindi or English only. The applications\r\nwere required to be accompanied by a self-attested matriculation\r\ncertificate as proof of educational qualification and age.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The writ petitioner belongs to Other Backward Class category and\r\nhas filled up his application form along with Indian Postal Order\r\ndated 5.3.2011 in English. His signatures are in English consisting of\r\ntwo letters “M” and “S”. Such application form is accompanied with\r\na self-attested marksheet of high school examination and other\r\ncertificates. All such documents are self-attested and signed in\r\nHindi.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The writ petitioner appeared for the written test on 23.6.2013 where\r\nhe wrote the paragraph in Hindi on the OMR sheet, though in the\r\napplication form, he had written it in English. He signed in Hindi\r\nthen. Subsequently, when the writ petitioner appeared for the PET\r\non 7.3.2014, he again signed as “M S”.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The appellants obtained the opinion of the Government Examiner of\r\nQuestioned Documents4\r\n on 2.9.2014. The expert\'s opinion was that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the signatures on the OMR sheet and on the xerox copies of the\r\ncertificates are by one and the same person. It was also opined that\r\nit is not possible to express any opinion in respect of para written in\r\nHindi in the OMR sheet and in English in the application form.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. Since the writ petitioner was not appointed, though he had obtained\r\n73.32 marks against the cut-off of 58.5 marks in the OBC category,\r\nhe filed a writ petition before the High Court of Allahabad. An order\r\nwas passed by the High Court on 19.10.2016 wherein the matter\r\nwas remitted to the appellants to reconsider the entire issue,\r\nincluding thumb impression and finger prints that have taken place\r\nat various stages of the examination. An opportunity was given to\r\nthe writ petitioner to make a fresh application which shall be heard\r\nby the Chief Security Commissioner</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The question required to be examined herein is to the effect of\r\nviolation of the condition provided in the advertisement that the\r\napplication has to be in the language for which the candidates want\r\nto attempt the question paper, and what is the effect of using\r\ndifferent language in the application form than the OMR sheet.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. We have heard learned counsel for the parties and find the\r\njudgments referred to by Ms. Divan and Mr. Bhushan are not\r\napplicable to the facts of the present case. In G. Hemalathaa, the\r\ncondition that usage of whitener, sketch pens, pencil, colour pencils,\r\nmulti-colour pens would lead to invalidation of the answer book. In\r\nthese circumstances, it was held that violation of such mandatory\r\nconditions by the candidate disentitles for declaration of her result\r\nfor appointment to the post of Civil Judge. The judgment in Ajay\r\nKumar Mishra of the Delhi High Court arises out of the fact of\r\ncancellation of the candidature on account of furnishing incorrect\r\ninformation about the actual date of birth of the writ petitioner. In\r\nRam Kumar Gijroya, the candidate had submitted his certificate of\r\nbeing belonging to Other Backward Class after the last date of\r\nsubmission of the application. Avtar Singh is a case where there\r\nwas suppression of material information regarding the criminal\r\ncases in which the candidate may be involved. Thus, all these cases\r\nare on their own facts, not involving similar issue as arising in the\r\npresent appeal.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. In the present case, more than 11,000 posts were advertised for\r\nfilling up of the posts of Constables in the RPF. Though the number\r\nof candidates who appeared in response to such advertisement is\r\nnot available, but generally, it is a matter of common experience\r\nthat candidates much more than the posts advertised are the\r\naspirants for such posts. The condition that language in the\r\napplication form shall be used for the purposes of OMR examination <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is for the reason that in case any dispute arises in respect of identity\r\nof the candidate, the same can be verified from the two\r\nhandwritings. Still further, the question papers are required to be set\r\nup in the languages other than Hindi and English as well. The\r\napplications in different languages were to be sent to different Nodal\r\nOfficers in Gorakhpur, Kolkata, Bhubaneshwar and Chennai. Still\r\nfurther, the OMR answer sheet is bilingual, in Hindi and English, but\r\nit would be in some other language if a candidate has chosen a\r\nlanguage other than English or Hindi.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. The sole reasoning given by the Division Bench of the High Court of\r\ntime gap between the filling up of the application form and the\r\nexamination, and hence inadvertent filling up of OMR sheet in Hindi\r\nby the writ petitioner is based on surmises and conjectures. Once\r\nthe writ petitioner has filled the application form in English, having\r\nalso signed in English, it cannot be said to be an inadvertent\r\nmistake when he has written the para in Hindi. Such writing in\r\ndifferent language violates the instruction clearly mentioned in the\r\nadvertisement.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. The argument of Mr. Bhushan that use of different language is not\r\nfollowed by any consequence and, therefore, cannot be said to be\r\nmandatory is not tenable. The language chosen is relevant to\r\nensure that the candidate who has filled up the application form\r\nalone appears in the written examination to maintain probity. The\r\nanswer sheets have to be in the language chosen by the candidate <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in the application form. It is well settled that if a particular\r\nprocedure in filling up the application form is prescribed, the\r\napplication form should be filled up following that procedure alone.\r\nThis was enunciated by Privy Council in the Nazir Ahmad v. KingEmperor, wherein it was held that “that where a power is given to\r\ndo a certain thing in a certain way the thing must be done in that\r\nway or not at all. Other methods of performance are necessarily\r\nforbidden.”</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. Similarly, this Court in Municipal Corporation of Greater\r\nMumbai (MCGM) v. Abhilash Lal & Ors. and OPTO Circuit\r\nIndia Limited v. Axis Bank & Ors. has followed the said\r\nprinciple. Since the advertisement contemplated the manner of\r\nfilling up of the application form and also the attempting of the\r\nanswer sheets, it has to be done in the manner so prescribed.\r\nTherefore, the reasoning given by the Division Bench of the High\r\nCourt that on account of lapse of time, the writ petitioner might\r\nhave attempted the answer sheet in a different language is not\r\njustified as the use of different language itself disentitles the writ\r\npetitioner from any indulgence in exercise of the power of judicial\r\nreview.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. Since the writ petitioner has used different language for filling up of\r\nthe application form and the OMR answer book, therefore, his\r\ncandidature was rightly rejected by the appellants.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. Therefore, the order passed by the High Court cannot be sustained\r\nin law, the same is set aside. The writ petition is dismissed.\r\nConsequently, the appeal is allowed. </b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c2d75e363abfe6305027e0f44adaa644.jpg', '498c4a32f3470a46cf467fdb3d16d63d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-26', 1, '', '', '2022-07-25 23:41:18', '2022-07-26 08:24:32'),
(1996, 'LRuLLzFwNONqG4BNWN5GpNeNF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Plaint in a suit for a primary relief of partition and separate possession cannot be rejected on the ground of limitation though the secondary prayer is barred by time especially when both the prayers are interconnected. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Khirasa Krishna Kathare and others Vs Shanta Alias Geeta and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 100095 of 2021 decided on 21 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice R. Devdas.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. I.A. No. III was filed by the defendants under Order VII Rule 11(a) and (d) read with Sec. 151 of CPC praying the trial Court to reject the plaint on the ground that the suit is barred by limitation by reason of Sec. 27 of the Limitation Act, 1963. The said application having been rejected, the defendants are before this Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Learned Senior Counsel Sri Shreevatsa, appearing for the defendants would submit that the plaintiffs are the full sisters of defendants No.2 and 3 and they filed the instant suit seeking partition and separate possession of the share of each of the plaintiffs in the suit property. The plaintiffs have also sought for a declaration  that  the  registered  relinquishment  deed  dated 29.12.2004 executed by the plaintiffs in favour of defendants No.1 to 3 is not binding on the share of the plaintiffs. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">4. Learned Senior Counsel submits that earlier the linear descendents of Sri Narayansa had filed O.S. No. 178/2005 wherein all the parties herein were arrayed as defendants, including the plaintiffs. Although the present suit schedule property bearing CTS No. 470/1 situated at Ward No.3 ad-measuring 3 acres 15 guntas, 5 sq.yards situated at Marian Timmasagar village, Karwar Road, Hubballi, was also part of the suit schedule properties in O.S. No. 178/2005, nevertheless the claim in respect of that property was given up. The plaintiffs herein were placed exparte and they did not contest the suit. However, after the judgment dated 16.02.2016 was rendered in O.S. No. 178/2005, original plaintiffs in O.S. No. 178/2005 filed R.F.A. No. 100186/2016 before this Court. In the said appeal the plaintiffs sought to file cross-objections. It was sought to be contended at the hands of the plaintiffs that they came to know about the fraud that was played upon them by defendants No. 5, 10 and 11, i.e., their full brothers and uncle in getting a relinquishment deed executed in their favour on misrepresenting that they were called to the Sub-Registrar’s office stating that they </font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">had to execute a power of attorney. However, objections were filed to the cross objections, mainly contending that Court fee was required to be paid as was paid on the plaint. The plaintiffs were directed to pay Court fee. Aggrieved, the plaintiffs approached the Hon’ble Supreme Court in SLP No. 33257/2017. Observations were made by the Hon’ble Apex Court and liberty was granted to the plaintiffs to file a fresh suit and get their rights adjudicated. Taking note of the said orders passed by the apex Court, this Court also permitted the plaintiffs to file a fresh suit. Consequently, O.S. No. 17/2020 was filed at the hands of the plaintiffs. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. Having heard the learned counsels and on perusing the petition papers, this Court finds that the question that arises for consideration in this writ petition is, whether in a suit for partition between the family members, the suit could be rejected on the ground that it is time barred, more so, when a declaration is sought by the plaintiffs against a registered instrument? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">8. It would be relevant to notice that it is a settled position of law that when a document is valid, no question arises of its cancellation. However, when a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non est in the eye of law, as it would be a nullity. This position has been reiterated in Prem Singh & Ors. Vs. Birbal & Ors. (2006) 5 SCC 353 and it was further held that Sec. 31 of the Specific Relief Act, 1963 refers to both void and voidable documents. It provides for a discretionary relief. It was further held that Article 59 of the Limitation Act applies specially when a relief is claimed on the ground or fraud or mistake. It only encompasses within its fold fraudulent transactions which are voidable transaction. Article 59 would be attracted when coercion, undue influence, misappropriation or fraud which the plaintiff asserts is required to be proved. Article 59 would apply to the case of such instruments. It would, therefore, apply where a document is prima facie valid. It would not apply only to instruments which are presumptively invalid.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. In Ranganayakamma and another Vs. K.S.Prakash and others reported in (2008) 15 SCC 673 it was held that illegality of a contract need not be pleaded, but, when a contract is stated to be voidable by reason of any coercion, misrepresentation or fraud, the particulars thereto are required to be pleaded. It is a well settled principle of law that a void document is not required to be avoided whereas a voidable document must be. It was held that a deed of release for a consideration is a transaction. When, thus, a release is made for consideration, the particulars of consideration and other particulars which are required to be awarded in the deed are essential elements thereto. Relinquishment of a property by a sister in favour of her brother for a consideration or absence of it, stands on a different footing. Section 25 of the Contract Act must be read and construed having regard to the fact situation obtaining in the cases. It was held that even in proceeding on the basis that the consideration of Re.1/- is shown in the deed of partition is no consideration in the eye of law, the question remains is as to whether a partition deed would be violative of Section 25 of the Contract Act for want of consideration. It was held that in a suit for partition, one of the question is as to whether a document had been executed out of love and affection or not. It was held that consideration even in the Indian context would mean reasonably equivalent or other valuable benefit passed on by the promisor to the promise or by the transferor to the transferee. Applicability of Article 65 or 110 of the Limitation Act, on the one hand and Article 59 thereto, on the other, was held to be depending upon the factual situation involved in a case. A decree for setting aside the document may be sought for in terms of Section 31 of the Specific Relief Act. Applicability of Article 59 would depend upon the question as to whether deed was required to be set aside or not. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. As noticed in the beginning, the petitioners/ defendants have sought to contend that in view of the fact that the plaintiffs knew about the deed of relinquishment as far back as 2016, in the proceedings before this Court in R.F.A. No. 100186/2016 and the suit is filed after lapse of more than three years, the prayer seeking a declaration regarding the deed of relinquishment is time barred. However, it is noticeable that Order VII Rule 11 CPC provides for rejection of the plaint and not rejection of one of the prayers made in the plaint or rejection of the plaint partly. This is the reason why the petitioners / defendants have sought for two prayers in their application, that is, the rejection of the plaint under Rule 11(a) –that there is no cause of action and under Rule 11(d) – that the suit is barred by law of limitation.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. However, one of the defences that a defendant could raise in a suit for partition is that there has already been a prior partition or that the plaintiff has already relinquished his/ her rights in the suit schedule properties. Since, technically, rejection of the plaint in a suit for partition could not be sought by the defendants by targeting a prayer seeking declaration against the deed of relinquishment, the defendants have resorted to making two prayers in the instant application. Thereto, the trial Court could have rejected the application by considering the objections raised at the hands of the plaintiffs that since two different reliefs are sought, the application was required to be rejected in view of Section 23 of the Karnataka Civil Rules of Practice. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. The trial Court is however, right in holding that having regard to the averments made in the plaint that the deed of relinquishment was obtained fraudulently, on the premise that a power of attorney was required for the brothers and since no consideration is passed on under the deed of relinquishment, many questions would arise in the present suit. Questions as to whether the deed of relinquishment is a void document or a voidable document; whether there was a need to seek a declaration in respect of the deed of relinquishment, if document is a void document; etc. would arise for decision making. Therefore, the trial Court has rightly held that the question regarding the law of limitation raised at the hands of the defendants would be a mixed question of law and facts, having regard to the averments made in the plaint. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. In that view of the matter, this Court is in agreement with the trial Court in coming to a conclusion that the issue of limitation raised at the hands of the defendants is a mixed question of law and facts and therefore the same is required to be considered after looking into the evidence that could be adduced by the parties in a full dressed trial. At any rate, suit for a primary relief of partition and separate possession cannot be rejected at the threshold on the ground that law of limitation would apply insofar as the deed of relinquishment is concerned. The two prayers made by the plaintiffs are inter connected. There cannot be rejection of the plaint partly. The plaint also cannot be rejected on the ground that there is no cause of action, since the plaint does disclose cause of action for seeking partition of the suit schedule property. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Consequently, the writ petition stands dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '25fb1294c4a81fc5af84cdcc45f9227f.JPG', '5d8a6439b60077ca902d0e76144fa873.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-27', 1, '', '', '2022-07-26 17:32:26', '2022-07-27 10:21:50');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2010, 'LnaQXLGhAWji5TrBHvtqQJbDN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Lapse of scheme under the BDA Act. Dismissal of earlier writ petition for want of particulars does not preclude fresh writ petition with additional material/grounds. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ravindra. T and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 55159 of 2014 decided on 19 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The petitioners claim to be the owners of Sy.No.80/1 measuring 2 acres 4 guntas situated at Hulimavu Village, Bannerghatta Road, Bangalore South Taluk, Bangalore. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The petitioners contend that the said land was one among various lands acquired for the formation of Byrasandra, Tavarekere and Madivala Layout (BTM Layout) under the Preliminary Notification dated 08.09.1987 and Final Notification dated 28.07.1990. The petitioners are before this Court seeking for the aforesaid reliefs on the ground that the Scheme for which the lands have been acquired has lapsed and therefore, the aforesaid reliefs are required to be granted. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. It is stated that the Preliminary Notification was issued to an extent of 805 acres 21 guntas of land consisting  of  524  acres  9  guntas  from  Hulimavu Village and 231 acres 21 guntas from Arekere Village. Whereas the Final Notification was issued for 388 acres 9 guntas from Hulimavu Village and 174 acres 25 guntas from Arekere Village. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The petitioners’ forefathers had filed W.P.No.19277/1990 challenging the acquisition which came to be disposed on 19.09.1996 reserving liberty to approach Bangalore Development Authority (BDA) by submitting a suitable representation. In the event of any constructions having been made in the land belonging to them, which was acquired, the BDA was directed to consider the application for allotment of the area in favour of the petitioners on the basis of price fixed in respect of other similar sites or lands.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 6. The BDA was directed not to take steps to demolish the existing buildings till it considers and disposes of the representations of the land owners. Though such representation was made, it was not considered.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. The BDA initiated proceedings under Section 33(2) of Bangalore Development Authority Act (for short, ‘BDA Act’) and an order was passed by the Executive Engineer of the BDA directing the demolition of construction on the land in question on the ground that the construction is unauthorized which is contrary to the order passed by this Court in W.P.No.19277/1990. Hence, the petitioners filed another W.P.No.19877/2007 contending that since for more than 17 years, the petitioners having been in possession, occupation and enjoyment of the property, the land not having been utilized by the BDA, the scheme for which the above land was acquired had lapsed. Further, a direction was sought to restrain the BDA and its officers from interfering with the possession of the petitioners.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. This Court taking into account the Mahazar dated 06.11.1990 and also the notification issued under Section 16(2) of the Land Acquisition Act, 1984 (for short, ‘L.A Act’) dated 31.05.1994 dismissed the Writ Petition vide order dated 16.08.2010 on the ground that there are no relevant materials produced by the petitioners to point out substantial lapse of the scheme.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. On the basis of the submissions made, the points that would arise for determination by this Court are: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. Whether a Writ Petition earlier filed contending that the Scheme had lapsed in terms of Section 27 of the BDA Act having been dismissed, can petitioner file another Writ Petition on similar as also on additional grounds? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Whether a finding that the Scheme is lapsed in a proceeding would be restricted to the petitioner therein or would it be a declaration in rem? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Whether lapsing of the Scheme in respect of the land of the petitioner would also invalidate the acquisition made of the land of the petitioner? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Whether lapsing of the Scheme would invalidate the designation of the property as a civic amenity and all further actions taken in connection thereto?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 5. Whether in the facts of this case, the Scheme has lapsed insofar as the land of the petitioner is concerned? 6.<span style=\"white-space:pre\">	</span>What order?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>Answer to Point No.1: Whether a Writ Petition earlier filed contending that the Scheme had lapsed in terms of Section 27 of the BDA Act having been dismissed, can petitioner file another Writ Petition on similar as also on additional grounds?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.2. Whether a Scheme has lapsed or not, in my considered opinion, is a continuing cause of action inasmuch as if a petition is filed for declaration that the Scheme has lapsed, at the end of 10 years, which came to be dismissed and another petition is filed at the end of 15 years placing on record that there is no substantial compliance with the Scheme, then this Court would be well within its powers to exercise jurisdiction to declare the Scheme has lapsed in terms of Section 27 of BDA Act. If however, the court were to come to a positive conclusion that the scheme has been implemented the same would constitute res judicata, since once a scheme is stated to have been substantially implemented no further proceeding could be filed stating that the scheme has not been substantially implemented. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.3. Merely because a Writ Petition was dismissed on an earlier occasion for lack of relevant material, in my considered opinion cannot amount to a decision having been rendered on merits, there being no finding as regards whether the scheme has been implemented or not, if implemented whether it is substantially implemented or not and as such the same would not disentitle the petitioners to raise the same issue once again since until and unless there is a substantial compliance of the Scheme, the petitioners would have a continuing cause of action to agitate the issue as regards the non-compliance with the Scheme. The situation is akin to a suit for injunction whenever there is any fresh cause of action to file a suit for injunction, the dismissal of an earlier suit would not come in the way of a fresh suit so long as the fresh suit is based on a fresh cause of action<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.4. Hence, I answer Point No.1 by holding that the earlier Writ Petition filed in W.P.No.19877/2007 which came to be dismissed on 16.08.2010 on the ground that there are no relevant materials placed on record would not act as a res judicata and/or bar the petitioners from filing the present Writ Petition. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space: pre;\">	</span>Answer to Point No.2: Whether a finding that the Scheme is lapsed in a proceeding would be restricted to the petitioner therein or would it be a declaration in rem?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.2. If there is a substantial compliance of the Scheme, then there would be no requirement to go into the facts as to whether the particular land of the petitioners has been utilized or not since the same would be utilized in future in terms of the Scheme. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.3. However, if there is no substantial compliance with the Scheme, then there would be no purpose in the Court extending the time for the BDA to implement the Scheme by refusing to exercise the powers under Section 27 of the BDA Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.4. This would however not affect the areas where the Scheme had already been implemented, a layout already formed and allotted to the intending allottees since the work done by the BDA ought not to be disturbed by exercising powers under Section 27 of the BDA Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.6. The finding of facts unless shown that there is a change in circumstances and/or that the BDA has implemented the Scheme more than what was stated in the earlier judgment, the finding in the said judgment as regards the implementation of the Scheme would hold valid in any subsequent proceedings. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.7. Thus, in all the matters which have been cited by the learned counsel for the petitioners, this Court has specifically restricted the lapsing of the Scheme to the land of the petitioners in that particular matter and there is no declaration as such that the Scheme has lapsed for the entire land acquired. In view thereof, I am of the considered opinion that the petitioners cannot by relying on those judgments contend that the Scheme as a whole has lapsed. It would always be open for the petitioner in a particular matter to establish as regards both substantial non-compliance of the Scheme in its entirety as also non-implementation of the Scheme in respect of the lands of the petitioners concerned. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.8. Hence, I answer Point No.2 by holding that the finding that the Scheme has lapsed in a Writ Petition would be restricted to the petitioner/s to that petition and would not amount to a declaration in rem.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>17.<span style=\"white-space:pre\">	</span>Answer to Point No.3: Whether lapsing of the Scheme in respect of the land of the petitioner would also invalidate the acquisition made of the land of the petitioner?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>17.3. A reading of Section 27 of the BDA Act would indicate that if there is a substantial non-compliance of the Scheme for a period of 5 years and thereafter, a Scheme would be lapsed, and the provision of Section 36 of the BDA Act would become inoperable.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>17.4. The contention urged by the learned counsel for the petitioners is that in the present case, the Scheme would be required to be held to be lapsed and in view thereof since Section 36 of the BDA Act is made inoperable, then the very acquisition would be negated and as such, the acquisition notification would have to be quashed.<br></b></span></p><p class=\"MsoBodyText\" style=\"margin: 13.3pt 63.35pt 0.0001pt 158.15pt; font-size: 12pt; font-family: Verdana, sans-serif; text-align: justify; line-height: 32.32px;\"><span lang=\"EN-US\"><b><o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>17.7. This aspect has been considered by this Court in Anthony Reddy’s case supra wherein it has been categorically held that once a Scheme is held to have lapsed, there is no provision in law to enable the State or the BDA to retain the land where the Scheme is declared to have been abandoned. This Court went on to hold that once a Scheme is held to have lapsed neither BDA nor the State can propound another Scheme by holding on to the land since the same would result in a never ending process and as such, while declaring the Scheme to have lapsed, quashed the acquisition as well. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>17.8. In the above circumstances, when the acquisition proceedings are not completed, in that the possession has not been taken and vested in the State, I am of the considered opinion that the lapsing of the Scheme would entail the quashing of the acquisition since on a declaration under Section 27 of the BDA Act, Section 36 of the BDA Act is made inoperative. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>17.9. Thus, I answer Point No.3 by holding that the lapsing of the Scheme in respect of the land of the petitioners would also invalidate the acquisition in the event of possession not having been taken over and vested with the State. The lapsing of the Scheme in respect of the land of the petitioners would not invalidate the acquisition if possession is taken over and vested with the State.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space: pre;\">	</span>Answer to Point No.4: Whether lapsing of the Scheme would invalidate the designation of the property as a civic amenity and all further actions taken in connection thereto?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.6. In the present case, admittedly, the designation of a civic amenity has not been implemented. Even though it is contended that the civic amenity site has been allotted to the police department, I am of the considered opinion that the requirements under Section 3 of the Bangalore Development Authority (Allotment of Civic Amenity Sites) Rules, 1989 (for short, ‘Rules 1989’) have not been followed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.7. Though there is no restriction to allot a civic amenity site to a governmental authority, the requirement of Section 3 of Rules, 1989 not having been followed, the allotment is non-est.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.9. In the present case, the allotment as claimed by the respondents without even designation under Section 3 of Rules of 1989 is for the construction of a police station and police quarters which as aforesaid does not meet the legal requirements and as such, even the allotment is bad in law. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.10. Thus, lapsing of the Scheme in my considered opinion would invalidate the designation of the property as a civic amenity and all further actions taken in connection thereto, if the Scheme is not implemented in respect of that particular land. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.11. I answer point no. 4 by holding that lapsing of the Scheme in respect of a particular property would invalidate the designation of the property as a civic amenity and all further actions taken in connection thereto.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>Answer to Point No.5: Whether in the facts of this case, the Scheme has lapsed insofar as the land of the petitioner is concerned?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19.6. The only question that is required to be answered by this Court in the present matter is as regards whether possession of the land of the petitioners has been taken and if the same has taken possession of, has it vested with the State government and whether the Scheme has been implemented insofar as the land of the petitioners are concerned. This Court having already come to a conclusion that there is no substantial compliance of the Scheme as such.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19.8. It is claimed that the possession notice was issued to Chikkapapaiah. However, in terms of Annexure-W11, Chikkapapaiah had expired on 27.05.1983 and hence, the question of Chikkapapaiah refusing the notice would not at all arise, more so, when the successors in interest of the said Chikkapapaiah viz., Sri.Thimmaiah and Sri.Ventappa had filed Writ Petitions before this Court in W.P.No.19277/1990, which have been disposed of on 19.09.1996. Hence, the question of issuing an award notice addressed to a dead person and claiming that the noticee had refused to accept service of notice is a clear falsehood on the part of the respondents, which now they cannot take advantage of. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19.9. In the above background, I am of the considered opinion that there is no possession which has been taken by the respondent-BDA.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19.10. In the year 2007, the engineering officer of the BDA directed for demolition of the structure constructed on the land vide Annexure-F on 21.11.2007, which came to be challenged by the petitioners in W.P.No.19877/2007. Thus, even as on the year 2007, the petitioners were in possession of the property in the construction that they have put up by themselves. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19.11. It is only thereafter in the year 2008, that the Director General and Inspector General of Police made a request for allotment of the land which was so decided to be allotted vide resolution dated 24.04.2008 and allotment letter dated 10.09.2013 issued. Subsequent thereto, a lease agreement dated 24.01.2014 was executed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19.12. In the above circumstances, the award notice and the endorsement thereon not being believable and being demonstrated to be false, the construction being in existence till the year 2007 and the petitioners being in possession till the year 2007, as per the order by the Engineering Officer of the BDA dated 21.11.2007, it is clear that the BDA has not taken possession of the land in the year 1993 as claimed and the possession continued to be with the petitioners. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19.13. Thus, the land not having been taken possession of and vested with the State and handed over to the BDA, I am of the considered opinion that the case of the petitioners would come under exception to Offshore Holdings’s case which has been detailed out in Anthony’s case requiring the Scheme having been lapsed and the acquisition to be quashed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19.14. Hence, I answer point no.5 by holding that in the facts of this case, the Scheme has lapsed insofar as the land of the petitioner is concerned, possession not having been taken, acquisition would also have to be quashed.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>Answer to Point No.6: What order?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space:pre\">	</span>The Writ Petition is allowed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>iii.<span style=\"white-space:pre\">	</span>Possession of the property not having been taken, Section 36 of the BDA Act is declared inapplicable to the land of the Petitioner.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '10ac5e11536fafe09678096665591bf3.JPG', 'f475a77bed6e70cf108d3b856b61236d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-29', 1, '', '', '2022-07-28 17:02:51', '2022-07-29 08:28:34'),
(1998, 'HHSZLUlfi8fvzYQzOofxbSggS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Compensation and resettlement methodology as determinable under the land acquisition Act of 2013 is applicable to the acquisition made under National Highways Act. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Manohar Patil and others Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 10103 of 2020 decided on 19 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Petitioners are brothers claiming to be the owners of land in Sy.No.144/3, 144/4 and 145/3, 145/4, 145/5, 145/6, 145/7 measuring 1.482 Acres and Sy.No.146 measuring 3 acres 10 guntas </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>Petitioners claim to be the owners of land in Sy.No.141/1 measuring 2 acres, 52/5A measuring 20 guntas, 52/5A measuring 15.08 guntas, 52/5B measuring 7.08 guntas and sy.No.143 measuring 3 acres, situated at Bairanayakanahalli village, Tiptur taluk, Tumkur District</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">9. In all the above matters it is contended that the land of the petitioners was being acquired for widening of the road without complying with the mandatory provisions of The Right to Fair Compensation And Transparency in Land Acquisition, Rehabilitation And Resettlement Act, 2013 [for short ‘LARR Act’]. Hence, the petitioners are before this Court seeking for the abovesaid reliefs.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>On the basis of the submissions which have been made, the points that arise for determination are:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space: pre;\">	</span>Whether the entire LARR Act is applicable to the acquisition under the N.H. Act or it is only the schedules which are applicable?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2.<span style=\"white-space: pre;\">	</span>If it is only schedules which are applicable, can any claim of the land loser be determined by the Arbitrator under Section 3-G(5)?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Whether in the present case, the petitioners have an alternative and efficacious remedy?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>What order?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>ANSWER TO POINT NO.1: Whether the entire LARR Act is applicable to the acquisition under the N.H. Act or it is only the schedules which are applicable?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.4. The restriction under Subsection (1) of Section 105 is subject to Subsection (3) thereof. In terms of Subsection (3), the Central Government may by notification within one year from the date of commencement of LARR Act of 2013 direct the applicability of the provisions of the LARR Act of 2013 relating to determination of compensation in accordance with Schedule-I and rehabilitation and resettlement specified in the Schedules-II and III, being beneficial to the affected families apply to cases of land acquisition under the enactments specified in Schedule-IV, or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.6. Juxtaposing Subsection (3) of Section 105 with the operative portion of S.O. No.2368(E), it is clear that the Central Government could by notification only direct that the provision of the LARR Act relating to the determination of compensation in accordance with Schedule-I and Rehabilitation and Resettlement specified in Schedule-II and III could be made applicable to acquisitions under the Acts listed in the Schedule-IV. Subsection (3) of Section 105 does  not  provide  for  the  entire  LARR  Act  of 2013 to be made applicable to Schedule-IV. The legislature in its wisdom was of the opinion that it is only the Schedules-I, II and III which would be made applicable to acquisitions made under the Acts listed in Schedule-IV. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.7. Thus, S.O. No.2368(E) which has been issued also restricts the application of the LARR Act of 2013 to the said Schedules in respect of the acquisition under the enactments listed under Schedule-IV. Suffice it to state that Sub-section (3) of Section 105 and S.O. No.2368(E) are in tandem with each other and the S.O. is neither lesser than the benefit provided under Subsection (3) of Section 105 nor greater than it.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.9. Hence, I answer Point No.1 by holding that the LARR Act of 2013 in its entirety is not applicable to the Acts listed in Schedule-IV, but it is only compensation as determinable under Schedule-I the benefits of rehabilitation as listed in Schedule-II and the resettlement methodology as detailed in Schedule-III which should be applicable to the acquisition made under the enactments listed under the Schedule-IV which includes the N. H. Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>ANSWER TO POINT No.2: If it is only schedules which are applicable, can any claim of the land loser be determined by the Arbitrator under Section 3-G(5)?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.9. Schedule-II deals with the elements like provision of housing units in case of displacement, land for land, offer for developed land, choice of Annuity of employment, Subsistence grant for displaced families for displaced families for a period of one year, Transportation cost for displaced families, Cattle shed/petty shops cost, One-time grant to artisans, small traders and certain others, Fishing rights, One-time Resettlement allowance, Stamp duty and registration fee. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.10. Thus, providing of the benefits in Schedule-II is only as regards the aforesaid elements which have been detailed in Schedule-II. The entitlements have been detailed out in the Schedule-II corresponding to the above elements. Thus, for example while laying a highway or while widening an existing highway, if a house of the land owner is lost, then a constructed house is required to be provided as per the Indira Awas Yojana if in the rural area. If in the urban area, a constructed house having a plinth area not less than 50 sq.mtrs is to be provided.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.16. In the case of an acquisition under N.H. Act, normally there is no large scale resettlement, since the acquisition is of linear extent of lands which may be about 300 ft. wide, whereunder few  houses  would  be  demolished  requiring resettlement, as also the benefits for such resettlement are covered under Schedule-II. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.17. In the event of any acquisition under the N.H. Act requiring large scale resettlement of population to a new village or colony, the components of infrastructure as detailed under Schedule-III would have to be made available to the resettled village or colony. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.18. In such a case it was required for the competent authority to assess the same and put up a proposal having all the facilities described in Schedule-III. This again would not require social impact assessment report or Rehabilitation and Resettlement Scheme.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.20. I am of the considered opinion that whenever there is a acquisition under the N.H. Act, it is required that in terms of Section 3-G, the competent authority make applicable Schedules-I, II and III and determine the compensation which is liable to be paid both in monetary terms, as also in terms of the elements identified under Schedule-II and before determining the same, the competent authority shall have to give a public notice in two local newspapers, one of which being in vernacular language inviting claims from all persons who are interested in terms of Section 3-G of the N.H.Act and thereafter follow the procedure prescribed under Subsection (4) of Section 3-G and determine the amount as stated hereinabove.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.21. In the event of same not being determined, the land loser would be entitled to a enhanced claim before the Arbitrator appointed by the Central Government in respect of all items and elements detailed in Schedule-I, II and III of the LARR Act of 2013. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.22. The contention of Sri.Cliffton Rozario, learned counsel for the petitioners, that jurisdiction cannot be conferred on the Arbitrator to decide the elements under LARR Act of 2013 by relying upon the Chiranjilal’s case and the jurisdiction of the Arbitrator cannot be enlarged by relying upon A.R.Antulay case would not be applicable to the present situation for the reason that as held in answer to Point No.1, it is only the Schedules which are applicable to the acquisition under the Act listed in Schedule -IV and not the entire enactments. The determination of compensation as also the elements would not require the Commissioner or the Committee or the like officers. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.23. Thus, I am of the considered opinion that firstly it is for the competent authority to follow the procedure as stated under Section 3-G by taking into consideration the applicability of Schedule-I, II and III of the LARR Act of 2013 and secondly, if the competent authority has not taken those facts into consideration, the land loser can approach the Arbitrator for determining the compensation in terms of Schedules-I, II and III.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.25. I answer point no. 2 by holding that since it is only the schedules which are applicable, any claim of the land loser as regards the determination of compensation in terms of Schedule I, II, III can be made by the Arbitrator under Section 3-G(5).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>ANSWER TO POINT NO.3: Whether in the present case, the petitioners have an alternative and efficacious remedy?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.1. In view of answer to Points No.1 and 2, answer to this question is rendered academic, inasmuch as the petitioners in the present case being aggrieved by the determination of compensation by the competent authority, the petitioners would have an alternative and efficacious remedy to approach the Arbitrator in terms of Section 3-G(5) of the N.H. Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.2. However, in the present case the competent authority not having performed his/her obligation of determining compensation in terms of Schedule I, II and III, it is required that the competent authority redoes the same and passes an award.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 20.<span style=\"white-space:pre\">	</span>ANSWER TO POINT NO.4: What Order<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.1. The writ petitions are allowed;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4775ce04adaab207872201f05d9ab6e6.JPG', '83d9eba00eef754b993d25f357983f68.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-27', 1, '', '', '2022-07-26 18:22:51', '2022-07-27 13:55:44');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(1999, '6nEargUJ2UiWsl7gwjmBTrKY2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Lands covered by special orders issued under the Punjab Land Preservation Act, 1900 are forest lands within the meaning of the Forest (Conservation) Act, 1980. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Narinder Singh and others Vs Divesh Bhutani and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 10294 of 2013 decided on 21 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A.M. Khanwilkar, Justice Abhay S. Oka and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Civil Appeal No.10294 of 2013 takes exception to the order\r\ndated 03rd May 2013 passed by the NGT in Original Application\r\nNo.42 of 2013. The said application was filed for inviting the\r\nattention of the NGT to the illegal non-forest activities of the\r\nencroachers on the lands bearing Khasra Nos.1359, 1374 and\r\n1378 of Village Anangpur Tehsil Ballabhgarh, District Faridabad\r\nin the State of Haryana. The NGT passed the impugned order\r\nrestraining the carrying on of any non-forest activities on the\r\nsubject lands. The NGT proceeded on the footing that the lands\r\nat village Anangpur covered by the order dated 18th August 1992\r\nissued under Section 4 of PLPA were forest lands within the\r\nmeaning of the 1980 Forest Act. Before the said order dated 18th\r\nAugust 1992 was passed, a notification dated 10th April 1992 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under Section 3 of PLPA was issued notifying the entire area\r\ncovered by Ballabhgarh Tehsil of Faridabad District. The\r\nappellants are running marriage halls on the land subject matter\r\nof the said order dated 18th August 1992, issued under Section\r\n4 of PLPA.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. While interpreting the laws relating to forests, the Courts\r\nwill be guided by the following considerations:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\ni. Under clause (a) Article 48A forming a part of Chapter IV\r\ncontaining the Directive Principles of State Policy, it is the\r\nobligation of the State to protect and improve the\r\nenvironment and to safeguard the forests;\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ii. Under clause (g) of Article 51A of the Constitution, it is a\r\nfundamental duty of every citizen to protect and preserve the\r\nnatural environment, including forests, rivers, lakes and\r\nwildlife etc.;\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>iii. Article 21 of the Constitution confers a fundamental right on\r\nthe individuals to live in a pollution-free environment. Forests\r\nare, in a sense, lungs which generate oxygen for the survival\r\nof human beings. The forests play a very important role in\r\nour ecosystem to prevent pollution. The presence of forests\r\nis necessary for enabling the citizens to enjoy their right to\r\nlive in a pollution-free environment;\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>iv. It is well settled that the Public Trust Doctrine is a part of our\r\njurisprudence. Under the said doctrine, the State is a trustee <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of natural resources, such as sea shores, running waters,\r\nforests etc. The public at large is the beneficiary of these\r\nnatural resources. The State being a trustee of natural\r\nresources is under a legal duty to protect the natural\r\nresources. The public trust doctrine is a tool for exerting\r\nlong-established public rights over short-term public rights\r\nand private gains;\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>v. Precautionary principle has been accepted as a part of the\r\nlaw of the land. A conjoint reading of Articles 21, 48A and\r\n51-A(g) of the Constitution of India will show that the State is\r\nunder a mandate to protect and improve the environment and\r\nsafeguard the forests. The precautionary principle requires\r\nthe Government to anticipate, prevent and remedy or\r\neradicate the causes of environmental degradation including\r\nto act sternly against the violators;\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">vi. While interpreting and applying the laws relating to the\r\nenvironment, the principle of sustainable development must\r\nbe borne in mind. In the case of Rajeev Suri v. Delhi\r\nDevelopment Authority and Others , a Bench of this Court\r\nto which one of us is a party (A.M. Khanwilkar, J.) has very  </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">succinctly dealt with the concept of sustainable development.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. The 1927 Forest Act deals with reserved forests (Chapter\r\nII), village forests (Chapter III) and protected forests (Chapter IV).\r\nChapter V contains provisions which apply to forests which are\r\nnot vested in the State Government. First three categories of\r\nforests are on the lands vesting in the State. Under the 1927\r\nForest Act, every forest does not ipso facto become a reserved\r\nforest or a protected forest. Chapter II contains an elaborate\r\nprocedure for declaring any land vested in the State Government\r\nas a reserved forest. Only after following an elaborate process\r\nlaid down in Chapter II that a land vesting in the State\r\nGovernment can be declared as a reserved forest. Once a\r\nnotification is issued under Section 20 in the official gazette\r\ndeclaring a particular land as a reserved forest, prohibitions\r\ncontained in Sections 26 of the 1927 Forest Act apply.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. There is a power vested in the State Government under\r\nSection 28 to assign to any village community the rights of the\r\nState Government over any land which has been constituted as\r\na reserved forest. Once this power is exercised in respect of a\r\nreserved forest, it becomes a village forest.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. Under Chapter IV of the 1927 Forest Act, there is a power\r\nvested in the State Government to declare any forest land or\r\nwaste-land vested in it, which is not included in a reserved\r\nforest, as a protected forest. The consequences of a land being\r\ndeclared as a protected forest are not as stringent as the\r\nconsequences of the declaration of a land as a reserved forest. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CONCEPT OF FORESTS UNDER THE 1980 FOREST ACT</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">35. Section 2 overrides all the laws applicable to a particular\r\nState which will include not only the laws of that particular State\r\nbut also the relevant Central laws applicable to that particular\r\nState. Clause (i) of Section 2 applies to a reserved forest within\r\nthe meaning of any law for the time being in force in that State.\r\nClauses (ii), (iii) and (iv) of Section 2 apply to “any forest land”.\r\nAs clause (i) specifically refers to a reserved forest within the\r\nmeaning of any law in force, it is obvious that clauses (ii), (iii)\r\nand (iv) apply to any other forest, whether or not recognized or\r\ndeclared as such under any law in force in that State. Hence,\r\nclauses (ii), (iii) and (iv) of Section 2 apply to any forest land </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which may not be necessarily a reserved forest or a protected\r\nforest or a private forest governed by Chapter V under the 1927\r\nForest Act. Restrictions imposed by Section 2 (except clause (i)\r\nthereof) apply to every forest land in respect of which no\r\ndeclarations have been made either under the 1927 Forest Act\r\nor any other law relating to the forests in force in that State.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">36. Before we deal with the concept of a forest under the 1980\r\nForest Act, we must note here that this enactment does not\r\nprovide for an absolute prohibition on the use of any forest land\r\nor a part thereof for any non-forest purposes. The State\r\nGovernment or any other authority can always permit the use of\r\nany forest land or any portion thereof for non-forest purposes\r\nonly with the prior approval of the Central Government. In a\r\nsense, this enactment provides for permissive use of forest land\r\nfor non-forest activities with the prior approval of the Central\r\nGovernment. Therefore, the owner of a private land which is a\r\nforest within the meaning of Section 2 can convert its use for\r\nnon-forest purposes only after obtaining requisite permission of\r\nthe State Government or concerned competent authority.\r\nHowever, the State Government or the competent authority, as\r\nthe case may be, cannot permit such use for non-forest activities</span><span style=\"font-size: 12pt;\">  </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">without obtaining prior approval from the Central Government.\r\nThis provision has been made to check further depletion of\r\nalready depleted green cover and to ensure that only such nonforest activities are permitted by the Central Government which\r\nwill not cause ecological imbalance leading to environmental\r\ndegradation. Considering the scheme of the 1980 Forest Act, the\r\ntitle holder of a private land which is a forest within the meaning\r\nof Section 2 is not divested of his right, title or interest in the\r\nland. But there is an embargo on using his forest land for any\r\nnon-forest activity.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">37. The object of the embargo on permitting non-forest use of\r\nforest land without prior permission of the Central Government\r\nis not to completely prevent the conduct of non-forest activities.\r\nThis provision enables the Central Government to regulate nonforest use of forest lands. While exercising the power to approve\r\nnon-forest use, the Central Government is under a mandate to\r\nkeep in mind the principles of sustainable development as\r\nevolved by this Court including in its decision in the case of\r\nRajeev Suri8\r\n. The embargo imposed by Section 2 ensures that\r\nthe development and use of a forest land for non-forest use is\r\ngoverned by the principle of sustainable development. In a </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sense, Section 2 promotes the development work on forest land\r\nonly to the extent it can be sustained while alleviating\r\nenvironmental concerns. The power given to the Central\r\nGovernment under Section 2 must be exercised by adopting\r\nscientific and consistent yardsticks for applying the principles of\r\nsustainable development.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>38.. . Thus, according to the aforesaid decision, Section 2 applies to\r\nthree categories of forests:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. Statutorily recognized forests such as reserved or protected\r\nforests to which clause (i) of Section 2 is applicable;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ii. The forests as understood in accordance with dictionary\r\nsense and</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\niii. Any area recorded as a forest in Government records.\r\nSo far as the first category of forests is concerned, it poses\r\nno difficulty as the forests under the said category covered by\r\nClause (i) of Section 2 are statutorily recognized forests.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>39. It is the second category which poses some difficulty. As\r\nthe object of Section 2 of the 1980 Forest Act is to ensure that\r\nonly sustainable growth/development takes place on forest\r\nlands. The need for giving a wider meaning to “forest” or “forest\r\nland” contemplated by the 1980 Forest Act can be well\r\nunderstood and justified. Moreover, the object of the 1980 Forest\r\nAct is to prevent ecological imbalance resulting from\r\ndeforestation. The provision is aimed at protecting inter-<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dependence between the right to development of an individual\r\nand the right to the natural environment of the public at large.\r\nThe Legislature has used the words “any forest” in Clauses (ii) to\r\n(iv) of Section 2 after referring to the reserved forests in Clause\r\n(i) of Section 2. The intention is to bring all the forests, whether\r\ncovered by the 1927 Forest Act or not, within the sweep of the\r\n1980 Forest Act. A dictionary always contains the meaning of\r\nthe words as they are understood by people for generations. It\r\ncontains the meaning of a word which is already legitimized.\r\nLexicographers include a word in the dictionary when it is used\r\nby many in the same way. Therefore, forest as understood by its\r\ndictionary meaning is covered by Section 2.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>41. If a land is shown as a forest in Government records, it will\r\nbe governed by Section 2. A Government record is a record\r\nmaintained by its various departments. A Government record is\r\nalways made after following a certain process. Only the entries\r\nmade after following due process can be a part of any\r\nGovernment record. Government records will include land or\r\nrevenue records, being statutory documents. For the same\r\nreason, it will also include the record of the forest department.\r\nAfter all, the forest department is the custodian of forests. It is\r\nthis department of the State which is under an obligation to\r\nprotect the forests for upholding the constitutional mandate.\r\nFurther, it is this department which identifies the forest lands\r\nand maintains a record. Therefore, the record maintained by the\r\nForest Department of forest lands after duly identifying the forest\r\nlands will necessarily be a Government record.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>42. Whether a particular land is a ‘forest land’ within the\r\nmeaning of Clauses (ii) to (iv) of Section 2 of the 1980 Forest Act,\r\nis a question which is required to be decided in the facts of each\r\ncase in the light of the aforesaid parameters.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>43. Clause (i) of Section 2 mandates that no reserved or\r\ndeclared forest should be divested of its status by the State\r\nGovernment without prior approval of the Central Government.\r\nThe effect of Clause (i) is that the State Government cannot\r\nexercise the power under Section 27 of the 1927 Forest Act of\r\ndeclaring that a particular land will cease to be a reserved forest\r\nunless there is prior approval from the Central Government. The\r\ntest for the grant of prior approval which we have laid down\r\nabove will also apply to such prior approval. In this background,\r\nwe proceed to discuss the issue which we have been called upon\r\nto decide in this group of cases<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>THE IMPACT OF THE NOTIFICATIONS/ORDERS ISSUED\r\nUNDER PLPA<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>45. The Preamble specifically refers to the deboisement of the\r\nforests. The dictionary meaning of the word “deboisement” is\r\n“deforestation”. Thus, the object of PLPA is also to protect the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">territories likely to be affected by deforestation. It is argued\r\nthat PLPA has been enacted essentially for the conservation of\r\nsub-soil water or the prevention of erosion and it has nothing\r\nto do with forests. Deforestation is one of the accepted and\r\nrecognized causes of erosion of soil. There is an article\r\npublished on the website of the World Wildlife Fund. The article\r\ndeals with deforestation and recognizes it as a cause of soil\r\nerosion.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">46. The material Sections in PLPA are Sections 3 to 7. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 3 enables the State Government to notify an area\r\nsubject to erosion or likely to become liable to erosion. When it\r\nappears to the State Government that it is desirable to provide\r\nfor the conservation of sub-soil water or the prevention of\r\nerosion in any area subject to erosion or likely to become liable\r\nto erosion, the State Government may by a notification issue a\r\ndirection accordingly. By the inclusion of any area in a\r\nnotification under Section 3, per se, there are no constraints\r\nor restrictions imposed on the use of the lands. There is\r\nnothing in Section 3 to suggest that the power to issue\r\nnotification can be exercised necessarily in respect of forest\r\nlands. The lands covered by the notification may also include\r\nnon-forest lands. However, in respect of the areas notified\r\nunder Section 3, the State Government can exercise the powers\r\nunder Section 5A.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>47. Though in this group of cases, wider submissions have\r\nbeen canvassed, we find that the entire challenge concerns\r\nonly the three separate Government orders dated 18th August\r\n1992 issued under Section 4 of PLPA in relation to the specific\r\nlands in the said three villages. There is no challenge in any of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Writ Petitions to any order issued under Section 5 of PLPA.\r\nEven the NGT in the impugned orders has relied upon only the\r\nspecial orders under Section 4. Therefore, we are confining our\r\ndiscussion to the question whether the lands covered by\r\nspecial orders issued under Section 4 of PLPA are forest lands\r\nwithin the meaning of the 1980 Forest Act. When an order is\r\nissued under Section 4 in respect of a specifically identified\r\narea which is a part of a larger area notified under Section 3\r\nfor imposing any of the specific prohibitions or restrictions\r\nprovided in Section 4, such an order can be termed as a special\r\norder under Section 4. Section 3 of PLPA contemplates the\r\nissuance of a notification in respect of a larger area when it is\r\ndesirable to provide for the conservation of sub-soil water or\r\nprevention of erosion. When the State Government is satisfied\r\nthat deforestation of a forest area forming part of a larger area\r\nnotified under Section 3 is likely to lead to erosion of soil, the\r\npower under Section 4 can be exercised. Various clauses of\r\nsub-section (4) refer to trees, timber, forest produce and cattle.\r\nClause (c) of Section 2 of PLPA specifically provides that the\r\nsaid words shall have the meaning severally assigned to these\r\nexpressions in Section 2 of the 1927 Forest Act. Clause (a) of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 4 empowers the State Government to restrict or\r\nprohibit clearing or breaking up or cultivating of land not\r\nordinarily under cultivation prior to the publication of the\r\nnotification under Section 3. In the context of Clause (a) of\r\nSection 4, we may note here that Clause (a) of sub-section (1)\r\nof Section 26 read with Section 5 of the 1927 Forest Act\r\nprohibits clearing of a reserved forest for cultivation. Subsection (1) of Section 35 of the 1927 Forest Act empowers the\r\nState Government to prohibit breaking up or clearing private\r\nforest land, pasturing of cattle or clearing vegetation on forest\r\nlands not vested in the Government. Such prohibition can be\r\nimposed in respect of privately owned forest lands for various\r\nreasons set out in the provision. One of the specified reasons\r\nis the protection of lands from erosion. Even clause (h) of subsection (1) of Section 26 of the 1927 Forest Act prohibits\r\nbreaking up or clearing any land forming a part of a reserved\r\nforest for cultivation or for any other purpose. Clause (g) of\r\nSection 4 of PLPA empowers the State Government to prohibit\r\nor prevent quarrying of stones or burning of lime at places\r\nwhere such stones or lime had not ordinarily been so quarried\r\nor burnt prior to the notification issued under Section 3. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Similar are the restrictions imposed by clause (g) of subsection (1) of Section 26 of the 1927 Forest Act in respect of\r\nthe lands forming part of a reserved forest. clause (c) of Section\r\n4 of PLPA which empowers the Government to impose\r\nrestrictions on the cutting of trees or timber is also a pointer\r\nwhich indicates that a special order under Section 4 has to be\r\nnecessarily in respect of a forest land. A similar restriction is\r\napplicable to a reserved forest as provided in clause (f) of subsection (1) of Section 26 of the 1927 Forest Act. Clause (d) of\r\nSection 4 of PLPA empowers the State Government to prohibit\r\nthe setting on fire of trees, timber or forest produce. Such\r\nrestriction is also found in clauses (b) and (f) of sub-section (1)\r\nof Section 26 in respect of a reserved forest. Clause (f) of\r\nSection 4 empowers the State Government to regulate, restrict\r\nor prohibit the admission, herding, pasturing or retention of\r\nsheep, goats or camels. Clause (d) of sub-section (1) of Section\r\n26 of the 1927 Forest Act imposes a similar restriction on the\r\nlands forming a part of a reserved forest. Clauses (f) and (g) of\r\nSection 4 of PLPA refer to forest produce generated out of any\r\nsuch area notified under Section 4. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Thus, it appears to us that various restrictions, regulations\r\nand prohibitions in different clauses in Section 4 of PLPA can be\r\ninvoked necessarily in respect of forest lands. Whereas, Section\r\n3 of PLPA contemplates the issuance of a general notification in\r\nrespect of any area subject to erosion or likely to become liable\r\nto erosion when it appears to the State Government that it is\r\ndesirable to provide for the conservation of sub-soil water or the\r\nprevention of erosion. As noted earlier, one of the objectives of\r\nPLPA is to prevent erosion of land which may be caused due to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">deforestation. When the State Government is satisfied that as a\r\nresult of deforestation or impending deforestation, erosion of a\r\nparticular area out of the area notified under Section 3 is likely\r\nto take place, the State Government may exercise the power\r\nunder Section 4 by issuing a special order. The reason is that\r\nthe measures provided in Section 4 are intended to prevent\r\ndeforestation of a forest area. Section 3 of PLPA contemplates\r\nthe issuance of a notification in respect of a larger area when it\r\nis desirable to provide for the conservation of sub-soil water or\r\nprevention of erosion. When the State Government is satisfied\r\nthat deforestation of a forest area forming part of a larger area\r\nnotified under Section 3 is likely to lead to erosion of soil, the\r\npower under Section 4 can be exercised. Therefore, it follows that\r\nthe specific land in respect of which a special order under section\r\n4 of PLPA has been issued will have all the trappings of a forest\r\ngoverned by clauses (ii) to (iv) of Section 2 of the 1980 Forest Act.\r\nTherefore, in respect of the lands covered by special orders under\r\nSection 4 of PLPA, the State Government or authorities of the\r\nState can permit diversion to non-forest use only after prior\r\napproval of the Central Government is granted in accordance\r\nwith Section 2 of the 1980 Forest Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>48. Clause (a) of Section 5 of PLPA provides for restricting or\r\nprohibiting the cultivation of any land ordinarily under\r\ncultivation prior to the publication of the notification under\r\nSection 3. However, the power under Section 5 to restrict or\r\nprohibit can be exercised in a case where prior to the publication\r\nof the notification under Section 3, quarrying of any stone or the\r\nburning of any lime was being made. Thus, there is a marked\r\ndifference between the language used in Section 4 and that in\r\nSection 5 of PLPA. However, as noted earlier, it is not necessary\r\nfor us to decide the issue whether a land forming a part of a\r\nspecial notification under Section 5 of PLPA ipso facto becomes\r\na forest under the 1980 Forest Act.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>THE EFFECT OF THE STAND TAKEN BY THE STATE\r\nGOVERNMENT IN PLEADINGS / AFFIDAVITS AND\r\nCORRESPONDENCE. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>50. The Division Bench of the Punjab and Haryana High\r\nCourt by the order dated 04th December 2009 accepted the\r\naforesaid prayer and held that those lands which are covered\r\nby notifications imposing restrictions/prohibitions under\r\nclause (a) of Section 4 and clause (a) of Section 5 of PLPA are\r\ndeclared as ‘forest lands’ for the purposes of 1980 Forest Act.\r\nThus, this was the categorical stand taken by the State\r\nGovernment in the pending proceedings on oath.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n51. We may note here that the statements made on behalf of\r\nthe State Government in the letters, affidavits and pleadings\r\ncannot be conclusive to decide the issue of the status of the\r\nlands covered by a special notification under Section 4 of PLPA.\r\nThe finding on the issue cannot be based only on the stand taken <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">earlier by the State Government in the correspondence and\r\naffidavits. Independently of the stand taken as aforesaid, on a\r\ncareful analysis of Section 4 of PLPA, we have come to a\r\nconclusion that the lands covered by the special orders under\r\nSection 4 of PLPA have all the trappings of a forest within the\r\nmeaning of Section 2 of the 1980 Forest Act. Therefore, we have\r\nheld that the lands covered by the special notification under\r\nSection 4 will be forest lands within the meaning of Section 2 of\r\nthe 1980 Forest Act.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>THE 2019 AMENDMENT ACT</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>62. By the 2019 Amendment Act, Section 3 has been\r\nsubstituted from the date of publication of the Amendment Act\r\nin the Government Gazette. Substituted Section 3\r\ncontemplates the State Government issuing a preliminary\r\nnotification before issuing a final notification under Section 3.\r\nIt also provides for inviting objections to the preliminary\r\nnotification and giving a hearing to the objectors. Section 3A\r\nwas added which provides that the provisions of PLPA shall not\r\napply, amongst others, to the lands included in the final\r\ndevelopment plans or any other town improvement plans or\r\nschemes published under the provisions of the said Act of\r\n1971, the Haryana Development and Regulation of Urban\r\nAreas Act, 1975 etc. A proviso has been added to Section 4\r\nlaying down that the period of validity of any order issued\r\nunder Section 4 shall not exceed the period of validity of the\r\ncorresponding notification under Section 3. Section 23 was\r\nincorporated in the principal Act by the 2019 Amendment Act.\r\nIt provides that the orders and notifications issued under PLPA\r\nshall be deemed to have been amended so as to exclude the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">categories of land covered under Section 3A with effect from\r\nthe date of issuance or publication of such orders or\r\nnotification. Moreover, clause (c) of sub-section (2) of Section\r\n23 provides that after the expiry of the period stated in such\r\norders or notifications, the regulations, restrictions or\r\nprohibitions imposed shall cease to exist. Another important\r\nfeature of the 2019 Amendment Act is that Section 4A has been\r\nincorporated. It provides that in respect of the areas notified\r\nunder Section 3, the State Government may, in the whole or\r\nany part of such areas, by general order temporarily regulate,\r\nrestrict or prohibit the cutting of trees and timber. Sub-section\r\n(3) of Section 4A provides that all subsisting general orders\r\nissued under Section 4 prior to the date of commencement of\r\n2019 Amendment Act shall be deemed to have been issued\r\nunder Section 4A. A note appended to Section 4A clarifies that\r\nall the subsisting general orders issued under Section 4 or\r\nnotifications made thereunder prior to the publication of the\r\n2019 Amendment Act shall be solely for the purpose of\r\ntemporarily regulating, restricting or prohibiting felling of trees\r\nand not for regulating any other activity or imposing\r\nrestrictions or change in the permissible land use for such </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">area. Sub-section (2) of Section 1 of 2019 Amendment Act is\r\nof some importance. It lays down that the said Amendment Act\r\nshall be deemed to have come into force from 01st November\r\n1966 except unless expressly provided otherwise.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>63. In this group of petitions, we are concerned with three\r\nspecial orders under Section 4 issued on 18th August 1992 in\r\nrespect of the said three villages. The effect of the said orders\r\nis that the lands referred to therein are forest lands within the\r\nmeaning of Section 2 of the 1980 Forest Act. Even if such\r\norders are cancelled or amended or rescinded or their duration\r\ncomes to an end, the status of the lands covered by the same\r\nas forest lands governed by Section 2 of the 1980 Forest Act\r\ncannot be altered without following the due process provided\r\ntherein. Once a land is found to be a ‘forest’ within the\r\nmeaning of the 1980 Forest Act, its user for non-forest\r\npurposes will be always governed by Section 2 of the 1980\r\nForest Act. Secondly, clause (i) of Section 2 provides that even\r\nin the case of a reserved forest under the 1927 Forest Act, the\r\nState Government cannot pass an order declaring that the\r\nsame shall cease to be a reserved forest, without the prior\r\napproval of the Central Government. Thirdly, Section 2 starts <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">with a non obstante clause which overrides anything contained\r\nin any other law for the time being in force in a State which\r\nwill include all State and Central legislations applicable to the\r\nState. Therefore, prima facie, the 2019 Amendment Act enacted\r\nby the State Legislature would be repugnant to and violative of\r\nSection 2 of the 1980 Forest Act, if construed otherwise. Hence,\r\nwhether the 2019 Amendment Act is given effect or not, it will\r\nnot change the status of the lands covered by the special orders\r\nunder Section 4 of PLPA as the said lands possess all the\r\ntrappings of a forest with effect from 25th October 1980 within\r\nthe meaning of the 1980 Forest Act. Therefore, it is not\r\nnecessary for us in these petitions to deal with the issue\r\nwhether the order dated 01st March 2019 passed in Writ\r\nPetition (Civil) No.4677 of 1985 should be modified. The said\r\nprayer will have to be considered by the Bench dealing with the\r\nsaid writ petition</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>CONCLUSIONS AND OPERATIVE PART</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>64. Thus, we hold that the lands covered by the special orders\r\nissued under Section 4 of PLPA have all the trappings of forest\r\nlands within the meaning of Section 2 of the 1980 Forest Act\r\nand, therefore, the State Government or competent authority <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cannot permit its use for non-forest activities without the prior\r\napproval of the Central Government with effect from 25th\r\nOctober 1980. Prior permission of the Central Government is\r\nthe quintessence to allow any change of user of forest or so to\r\nsay deemed forest land. We may add here that even during the\r\nsubsistence of the special orders under Section 4 of PLPA, with\r\nthe approval of the Central Government, the State or a\r\ncompetent authority can grant permission for non-forest use.\r\nIf such non-forest use is permitted in accordance with Section\r\n2 of the 1980 Forest Act, to that extent, the restrictions\r\nimposed by the special orders under Section 4 of PLPA will not\r\napply in view of the language used in the opening part of\r\nSection 2 of the 1980 Forest Act. We also clarify that only\r\nbecause there is a notification issued under Section 3 of PLPA,\r\nthe land which is subject matter of such notification, will not\r\nipso facto become a forest land within the meaning of the 1980\r\nForest Act.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">65. Therefore, the lands covered by the special orders dated\r\n18th August 1992 issued under Section 4 of PLPA will be\r\ngoverned by the orders passed by this Court in the Petition for\r\nSpecial Leave to Appeal (Civil) Nos.7220-7221 of 2017. Hence </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">all the concerned authorities shall take action to remove the\r\nremaining illegal structures standing on land covered by the\r\nspecial orders and used for non-forest activities on the said\r\nlands erected after 25th October 1980, without prior approval\r\nof the Central Government, and further to restore status quo\r\nante including to undertake reforestation/afforestation\r\nprogrammes in right earnest. As far as the lands covered by\r\nspecial orders under Section 5 are concerned, we are not\r\nmaking any adjudication. Therefore, the authorities will have\r\nto decide the status of the lands covered by the said orders\r\nunder Section 5 on case to case basis.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">66. To avoid any prejudice to the affected persons, we direct\r\nthat before the action of removal of the illegal structures\r\nand/or action of stopping non-forest activities is taken in\r\nrespect of the lands covered by the special orders dated 18th\r\nAugust 1992 issued under Section 4 of PLPA, the concerned\r\ncompetent authority shall afford an opportunity of being heard\r\nto the affected persons and conclude such proceedings finally\r\nnot later than three months from today and submit compliance\r\nreport in that regard within the same time.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>69. There will be no order as to costs</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b1bdb2e536bb3c96f952cac7926d8ce8.jpeg', '50ee6c13f1b0b9cebf491c29c34f0acc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-27', 1, '', '', '2022-07-26 18:54:05', '2022-07-27 08:37:19');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2000, 'plHGcOxcT075y5XgWqx9mWM12', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contempt jurisdiction is aimed at maintaining the Court’s dignity and majesty of law. Simply because High Court order is executable, the same cannot be ground not to exercise contempt jurisdiction. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>HSBC PI Holdings (Mauritius) Limited Vs Pradeep Shantipershad Jain and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Contempt Petition (Civil) 624 of 2020 decided on 11 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice Aniruddha Bose.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. Present contempt petition has been preferred by the petitioner herein, alleging wilful, intentional and deliberate disobedience of the directions issued by this Court by the alleged contemnors – respondents herein in not depositing the shortfall amount so as to maintain a balance of USD 60 million in the Corporation Bank account maintained by Avitel Post Studioz Limited (hereinafter referred to as the “Avitel”), a company owned by the alleged contemnors. It is alleged that the alleged contemnors are in wilful breach of two orders of this Court dated 19.08.2020 and 06.05.2021.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The facts leading to the present contempt proceedings in a nutshell are as under: ­</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.1 A Share Subscription Agreement (SSA) was entered into on 21.04.2011 between HSBC – petitioner herein and Avitel and others (original appellant(s) before this Court in Civil Appeal No. 5145/2016). HSBC made an investment in the equity capital of Avitel India for a consideration of USD 60 million in order to acquire 7.8% of its paid­up capital. That the said SSA contained an arbitration clause. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.2 That thereafter, both the parties entered into a Shareholders Agreement (SHA) on 06.05.2011, which defined the relationship between the parties after SSA dated 21.04.2011 had been entered into. The said SHA also contained an arbitration clause. As disputes arose between the parties, on 11.05.2012, notices of arbitration were issued by HSBC to the Singapore International Arbitration Centre (SIAC) to commence arbitral proceedings. The SIAC appointed an Emergency Arbitrator. The Emergency Arbitrator passed two interim awards dated 28.05.2012 and 29.05.2012, in the SSA and SHA, respectively, in favour of HSBC, directing the alleged contemnors – Avitel Dubai to refrain from disposing of or dealing with or diminishing the value of their assets up to USD 50 million, and permitting HSBC to deliver a copy of the interim awards to financial institutions in India and the UAE with which any of them hold or may hold or be signatory to accounts, together with a request that the financial institutions freeze such accounts consistent with the interim awards. On 27.07.2012, the Emergency Arbitrator made an amendment to interim awards granting further relief to HSBC. That thereafter on 30.07.2012, HSBC filed Arbitration Petition No. 1062/2012 under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act, 1996) in the Bombay High Court, inter­alia, seeking directions to call upon the alleged contemnors to deposit a security amount to the extent of HSBC’s claim in the arbitration proceedings that had begun under both the SSA and SHA. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.6. At this stage, it is required to be noted that in the meanwhile the Arbitral Tribunal in Singapore had passed a final award dated 27.09.2014, awarding USD 60 million as damages in favour of the HSBC and against the respondents herein. The same foreign award was challenged by the respondents herein – alleged contemnors in Section 34 proceedings before the Bombay High Court. By a judgment and order dated 28.09.2015, the learned Single Judge dismissed Section 34 application/proceedings and an appeal under Section 37 of the Act, 1996 also came to be dismissed on 05.05.2017. Meanwhile, HSBC had moved the Bombay High Court to enforce the foreign final award dated 27.09.2014 in the SSA, of which enforcement proceedings were reported to be pending.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">6. Heard. In the present contempt proceedings, the petitioner has alleged that the respondents herein – alleged contemnors have committed the contempt of court for wilful disobedience of two orders passed by this Court dated 19.08.2020 passed in Civil Appeal No. 5158/2016 and subsequent order dated 06.05.2021 passed in the present proceedings. At this stage, it is required to be noted that in the present case the learned Single Judge passed an order as far as back on 22.01.2014 in a petition under Section 9 of the Act, 1996, directing the respondents herein – alleged contemnors to deposit the shortfall amount in their account with the Corporation Bank so as to maintain a balance of USD 60 million. The order passed by the learned Single Judge came to be modified by the Division Bench of the High Court and the alleged contemnors were directed to deposit an additional amount equivalent to USD 20 million in the Corporation Bank account, so that the total deposit in the said account is maintained at half the said figure of USD 60 million, i.e., at USD 30 million (instead of USD 60 million as ordered by the learned Single Judge). By detailed judgment and order dated 19.08.2020, this Court in Civil Appeal No. 5158/2016 has restored the order passed by the learned Single Judge dated 22.01.2014. Thus, the respondents herein – alleged contemnors are directed to deposit the shortfall in their account with the Corporation Bank so as to maintain a balance of USD 60 million. The said order has not been complied with till date and the respondents have failed to maintain a balance of USD 60 million in their bank account with the Corporation Bank. At this stage, it is required to be noted that in the meanwhile the Arbitral Tribunal in Singapore had also passed a Final Award dated 27.09.2014 awarding USD 60 million as damages in favour of the HSBC – petitioner herein and against the respondents. The applications under Section 34 and 37 of the Act, 1996 against the Award passed by the Arbitral Tribunal in Singapore had been dismissed and the execution proceedings moved by the HSBC in the Bombay High Court to enforce Foreign Final Award dated 27.09.2014 are reported to be pending. By a notice dated 04.09.2020, the petitioner had served a legal notice upon the alleged contemnors – respondents and Avitel calling upon them to, inter­alia, deposit the shortfall amount in the Corporation Bank account to maintain a balance of USD 60 million. Despite the above, the respondents have failed to deposit and/or to maintain a balance of USD 60 million in their Corporation Bank account. That thereafter, the present contempt proceedings have been initiated/filed on 25.09.2020 alleging wilful, intentional and deliberate </font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">disobedience of judgment and order passed by this Court dated 19.08.2020. This Court had issued a notice in the present contempt proceedings on 06.11.2020. That thereafter by a further order dated 06.05.2021 this Court had directed the respondents to deposit the shortfall amount within a period of six weeks in the Corporation Bank account as per prayer (b) of the present application.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. The present contempt proceedings are opposed by the respondents – alleged contemnors on the grounds, interalia, that (i) the order passed by the learned Single Judge dated 22.01.2014, which has been confirmed by this Court vide order dated 19.08.2020 in Civil Appeal No. 5158/2016, is an order executable and therefore, the present contempt proceedings may not be entertained; (ii) that there is no wilful disobedience on the part of the respondents – alleged contemnors in not depositing the shortfall amount in their Corporation Bank account to maintain a balance of USD 60 million as they have no sufficient funds and therefore, non­compliance is beyond their control and therefore, their inability to comply with the order despite their best efforts does not warrant any punishment under the Contempt of Courts Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. Now so far as the first contention resisting the present contempt proceedings, namely, the order passed by the learned Single Judge by the High Court by which the respondents were directed to maintain a balance of USD 60 million in their Corporation Bank account is executable is concerned, at the outset, it is required to be noted that in the present proceedings it is not the case of noncompliance of the order passed by the learned Single Judge confirmed by this Court alone. There is a further specific direction issued by this Court vide order dated 06.05.2021. Therefore, there is a non­compliance of direction issued by this Court dated 06.05.2021 by which the respondents were directed to deposit the shortfall amount so as to maintain a balance of USD 60 million. That thereafter, a further application for exemption from depositing the shortfall amount pursuant to order dated 06.05.2021 has also been dismissed by this Court. Therefore, thereafter it shall not be open for the respondents to submit that as order dated 22.01.2014 passed by the learned Single Judge is executable, the present contempt proceedings may not be entertained.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8.2. Apart from the fact that the facts in the case of R.N. Dey (supra) is distinguishable in as much as in the present case, there is further specific directions issued by this Court vide order dated 06.05.2021 even in the said decision also it is observed and held by this Court that discretion given to the court is to be exercised for maintenance of the court’s dignity and majesty of law. It is further observed that the contempt is between a contemnor and the court and that an aggrieved party has no right to insist that the court should not exercise such jurisdiction. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8.3. In the case of Welset Engineers and Anr. (supra), it is observed and held by this Court that a party in breach of any order of court whether interlocutory or final is subject to being proceeded against in contempt. Orders are meant to be obeyed and a person, acting in breach of the order does so at that person’s peril. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8.4. In the case of SEBI (supra), it is observed and held by this Court that non­compliance with the orders passed by this Court shakes the very foundation of our judicial system and undermines the rule of law, which we are bound to honour and protect. This is essential to maintain faith and confidence of the people of this country in the judiciary. It is further observed that there is a need of iron hand to enforce rule of law, punish contemnors and maintain faith and confidence of the people in judiciary. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and the subsequent specific directions issued by this Court in its order dated 06.05.2021, the objection on behalf of the respondents that as the order passed by the learned Single Judge of the High Court is executable and therefore, the present contempt proceedings may not be entertained is overruled. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">11. Sufficient opportunities have been given to the respondents to deposit the shortfall amount so as to maintain a sum of USD 60 million in their Corporation Bank account. The first order passed by the learned Single Judge in their application under Section 9 of the Act, 1996 is passed in the year 2014 and even the same has been restored by this Court vide judgment and order dated 19.08.2020 and thereafter, further directions have been issued specifically directing the respondents to deposit the shortfall vide order </font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">dated 06.05.2021 and thereafter their application for exemption from depositing the shortfall amount has been dismissed by this Court. Despite the above, the respondents have failed to deposit the shortfall amount and therefore, they have rendered themselves liable for suitable punishment under the provisions of the Contempt of Courts Act for wilful disobedience of not only the judgment and order passed by this Court dated 19.08.2020 in Civil Appeal No. 5158/2016 but also for wilful disobedience and non­compliance of order passed by this Court dated 06.05.2021 in the present application. The defence on behalf of the respondents lack bona fides. To maintain the rule of law and majesty of justice and so as to see that the faith and confidence of the people in judiciary is maintained, this is a fit case to entertain the present contempt proceedings and to punish the respondents under the provisions of the Contempt of Courts Act. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12. In view of the above and for the reasons stated above, we hold the respondents guilty for deliberate and wilful disobedience of judgment and order dated 19.08.2020 passed by this Court in Civil Appeal No. 5158/2016 as well as order dated 06.05.2021 passed by this Court in the present petition. The respondents have rendered themselves liable for suitable punishment under the provisions of the Contempt of Courts Act for such deliberate and wilful disobedience. However, before we pass any further order of punishment/conviction, we still give an additional opportunity to the respondents to comply with order dated 06.05.2021 passed in the present petition as well as judgment and order dated 19.08.2020 passed by this Court in Civil Appeal No. 5158/2016 to deposit the shortfall amount so as to maintain a balance of USD 60 million in their Corporation Bank account within a period of four weeks from today.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9db9a4ff57706e6725a00a45f3fd4742.jpg', '74aa18033b1a0749ed6ac9c8e3982b68.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-27', 1, '', '', '2022-07-26 20:46:35', '2022-07-27 06:25:23'),
(2001, 'YL4v2GXhEHGmpl5cbTfo1O9hP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Unlike matrimonial proceedings where strict proof of marriage is essential, in proceedings under Section 125 Cr.P.C strict standard of proof is not necessary when a man and woman cohabit continuously for a number of years. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Rajnesh Vs Neha and another.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Criminal Appeal 730 of 2020 decided on 4 November 2020.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Indu Malhotra and Justice R. Subhash Reddy.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The present Criminal Appeal arises out of an application for Interim Maintenance filed in a petition u/S. 125 Cr.P.C. by the Respondent-wife and minor son. The Respondent No.1-wife left the matrimonial home in January 2013, shortly after the birth of the son-Respondent No.2. On 02.09.2013, the wife filed an application for interim maintenance u/S. 125 Cr.P.C. on behalf of herself and the minor son. The Family Court vide a detailed Order dated 24.08.2015 awarded interim maintenance of Rs.15,000 per month to the Respondent No.1- wife from 01.09.2013; and Rs.5,000 per month as interim maintenance for the Respondent No.2-son from 01.09.2013 to 31.08.2015; and @ Rs. 10,000 per month from 01.09.2015 onwards till further orders were passed in the main petition.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">The issue whether presumption of marriage arises when parties are in a live-in relationship for a long period of time, which would give rise to a claim u/S. 125 Cr.P.C. came up for consideration in Chanmuniya v Virendra Kumar Singh Kushwaha & Anr. 9 before the Supreme Court. It was held that where a man and a woman have cohabited for a long period of time, in the absence of legal necessities of a valid marriage, such a woman would be entitled to maintenance. A man should not be allowed to benefit from legal loopholes, by enjoying the advantages of a de facto marriage, without undertaking the duties and obligations of such marriage. A broad and expansive interpretation must be given to the term “wife,” to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time. Strict proof of marriage should not be a pre-condition for grant of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">maintenance u/S. 125 Cr.P.C. The Court relied on the Malimath Committee Report on Reforms of Criminal Justice System published in 2003, which recommended that evidence regarding a man and woman living together for a reasonably long period, should be sufficient to draw the presumption of marriage.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">The law presumes in favour of marriage, and against concubinage, when a man and woman cohabit continuously for a number of years. Unlike matrimonial proceedings where strict proof of marriage is essential, in proceedings u/S. 125 Cr.P.C. such strict standard of proof is not necessary<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Directions on overlapping jurisdictions</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Payment of Interim Maintenance</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(i) The proviso to Section 24 of the HMA (inserted vide Act 49 of 2001 w.e.f. 24.09.2001), and the third proviso to Section 125 Cr.P.C. (inserted vide Act 50 of 2001 w.e.f. 24.09.2001) provide that the proceedings for interim maintenance, shall as far as possible, be disposed of within 60 days’ from the date of service of notice on the contesting spouse. Despite the statutory provisions granting a time-bound period for disposal of proceedings for interim maintenance, we find that applications remain pending for several years in most of the cases. The delays are caused by various factors, such as tremendous docket pressure on the Family Courts, repetitive adjournments sought by parties, enormous time taken for completion of pleadings at the interim stage itself, etc. Pendency of applications for maintenance at the interim stage for several years defeats the very object of the legislation.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(ii) At present, the issue of interim maintenance is decided on the basis of pleadings, where some amount of guess-work or rough estimation takes place, so as to make a prima facie assessment of the amount to be awarded. It is often seen that both parties submit scanty material, do not disclose the correct details, and suppress vital information, which makes it difficult for the Family Courts to make an objective assessment for grant of interim maintenance. While there is a tendency on the part of the wife to exaggerate her needs, there is a corresponding tendency by the husband to conceal his actual income.<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">It has therefore become necessary to lay down a procedure to streamline the proceedings, since a dependant wife, who has no other source of income, has to take recourse to borrowings from her parents / relatives during the interregnum to sustain herself and the minor children, till she begins receiving interim maintenance.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(vi) </span>The Delhi High Court in a series of judgments beginning with Puneet Kaur v Inderjit Singh Sawhney26 and followed in Kusum Sharma v Mahinder Kumar Sharma27 (“Kusum Sharma I”) directed that applications for maintenance under the HMA, HAMA, D.V. Act, and the Cr.P.C. be accompanied with an Affidavit of assets, income and expenditure as prescribed. In Kusum Sharma II,the Court framed a format of Affidavit of assets, income and expenditure to be filed by both parties at the threshold of a matrimonial litigation. This procedure was extended to maintenance proceedings under the Special Marriage Act and the Indian Divorce Act, 1869. In Kusum Sharma III,29 the Delhi High Court modified the format of the Affidavit, and extended it to maintenance proceedings under the Guardians & Wards Act, 1890 and the Hindu Minority & Guardianship Act, 1956. In Kusum Sharma IV30 the Court took notice that the filing of Affidavits alongwith pleadings gave an unfair advantage to the party who files <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the affidavit subsequently. In this judgment, it was clarified that the Affidavit must be filed simultaneously by both parties. In Kusum Sharma V31 the Court consolidated the format of the Affidavits in the previous judgments, and directed that the same be filed in maintenance proceedings.</span><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Criteria for determining quantum of maintenance</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(i) The objective of granting interim / permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependant children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife.<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">I</span><span style=\"font-size: 12pt;\">n Manish Jain v Akanksha Jain34 this Court held that the financial position of the parents of the applicant-wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Discussion and Directions on Enforcement of Orders of Maintenance</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The order or decree of maintenance may be enforced like a decree of a civil court, through the provisions which are available for enforcing a money decree, including civil detention, attachment of property, etc. as provided by various provisions of the CPC, more particularly Sections 51, 55, 58, 60 read with Order XXI.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Final Directions</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">In view of the foregoing discussion as contained in Part B – I to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India :</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(a) Issue of overlapping jurisdiction To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(i) where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or setoff, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding;</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(ii) it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(iii) if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding. <br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(b) Payment of Interim Maintenance</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court, as the case may be, throughout the country.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(c) Criteria for determining the quantum of maintenance</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">For determining the quantum of maintenance payable to an applicant, the Court shall take into account the criteria enumerated in Part B – III of the judgment. </span><span style=\"font-size: 12pt;\">The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\">(d) Date from which maintenance is to be awarded</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\">We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B – IV above.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\">(e) Enforcement / Execution of orders of maintenance</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\">For enforcement / execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 r.w. Order XXI.</span></span></p>', '0176e6157c743a52acb41a46408db950.png', '3a3a3720b10b87e657bfda7f281c8101.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-28', 1, '', '', '2022-07-26 20:51:09', '2022-07-28 12:11:55');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2007, 'crzInx4FWzrylyayxB4X58QYI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Trademark. Where the infringing product is visually and phonetically similar having same consumer base, the test in such a matter is not that of absolute confusion. Even likelihood of confusion is sufficient. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mondelez India Foods Pvt Ltd and others Vs Neeraj Food Products.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CS (COMM) 393 of 2018 decided on 26 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Prathiba M. Singh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The present suit has been filed seeking permanent and mandatory\r\ninjunction and damages for infringement of trademark and copyright,\r\npassing off, unfair competition and other reliefs. The Plaintiff No.1 -\r\nMondelez India Foods Private Limited (formerly Cadbury India Ltd.) and\r\nPlaintiff No.2 - Cadbury Schweppes Overseas Limited claim ownership in\r\nthe mark ‘CADBURY GEMS’/‘GEMS’ which is the subject matter of the\r\npresent suit.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The Plaintiff No. 1 began its operations as a trading company in the\r\nyear 1947 and is stated to be the market leader in the field of confectionary\r\nchocolate products worldwide, including in India. Some of the leading\r\nbrands of the Plaintiffs include ‘CADBURY DAIRY MILK’, ‘CADBURY\r\nGEMS’, ‘CADBURY 5 STAR’, ‘BOURNVITA’ and ‘CADBURY PERK’\r\nand brands of newer products like, ‘CADBURY BYTES’, ‘CADBURY <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">CHOCKI’, ‘CADBURY DELITE’, and ‘CADBURY TEMPTATIONS’.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3. The suit was filed in August, 2005 against M/s. Neeraj Food Products\r\nwhich is a sole proprietary concern of Mr. Charan Das. The case of the\r\nPlaintiffs is that the Defendant launched a chocolate product under the mark\r\n‘JAMES BOND’ with an identical colour scheme, layout, and arrangement\r\nas that of the Plaintiffs’ ‘CADBURY GEMS’/‘GEMS’ products.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. This Court has perused the ex parte evidence led on behalf of the\r\nPlaintiffs. The witness, who had appeared, has been duly authorised by\r\nPower of Attorney dated 17th July, 2012, and exhibited as Ex.PW-1/1. The\r\ndocument dated 3rd March, 2011 assigning the trademark from Cadbury\r\nSchweppes Overseas Limited to Cadbury U.K. Limited, has been exhibited\r\nas Ex.PW-1/2. A perusal of the schedule to the assignment shows that two\r\nof the marks, in which rights have been assigned, are ‘CADBURY’S MILK\r\nCHOCOLATE GEMS’ bearing registration No.249360 dated 20th May,\r\n1968 and ‘CADBURY’S GEMS’ bearing registration No.582896 dated 14th\r\nOctober, 1992. The assignment specifically records that these marks had\r\nbeen applied for by Cadbury Schweppes Overseas Limited and all the\r\nbeneficial rights, title and interest in the said marks have been assigned to\r\nCadbury U.K. Limited. The legal proceeding certificates and various\r\ntrademark registrations for the mark ‘GEMS’ have also been placed on\r\nrecord, and exhibited as Ex.PW 1/3 (Colly). The details of the said\r\ntrademark registrations have been tabulated hereinabove.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. Some of the global registrations for the marks related to the ‘GEMS’\r\nproduct have been exhibited as Ex.PW-1/4 along with a declaration of Mr.\r\nMark Jonathan Hodgin on behalf of Cadbury Schweppes Overseas Limited.\r\nThe same shows registration of the mark GEMS in several countries\r\nincluding Australia, Bahrain, Kuwait, Morocco, Nigeria, Oman, Pakistan,\r\nQatar, Sri Lanka, United Arab Emirates, and United Kingdom.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. The License Agreement between Cadbury India Limited and Cadbury <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Schweppes Overseas Limited, permitting the use of the mark ‘GEMS’ by\r\nCadbury India Limited for the exclusive use in the territory of India, Nepal,\r\nBangladesh (Ex.PW-1/5).\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">17. The copyright registrations granted to Cadbury India Limited, in its\r\nformer name being ‘M/s. Hindustan Cocoa Products Ltd.’, bearing\r\nregistration Nos.A-50680/90 and A-49975/89, which depicts a label with a\r\ncharacter portrayed in a western suit carrying a gun along with the ‘GEMS’\r\nchocolate products, have been exhibited as Ex.PW-1/6 (Colly). The said\r\nartistic works have been extracted hereinabove.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. This Court has heard ld. Counsel for the Plaintiff and perused the\r\nrecord. The Defendant is ex-parte. A perusal of the pleadings shows that the\r\ncase of the Plaintiffs is that the use of the impugned mark ‘JAMES\r\nBOND’/‘JAMEY BOND’ and the product packaging bearing the said mark,\r\nis infringing its registered trademark ‘CADBURY GEMS’/’GEMS’, its\r\ncopyright registrations featuring the character ‘GEMS BOND’ as set out\r\nhereinabove, and also constitutes passing off.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. The Plaintiff No.1 – Mondelez India Foods Pvt. Ltd. (formerly known\r\nas Cadbury India Limited) began its operations in India in the 1947 and has\r\nthousands of employees and lakhs of outlets across India. The earliest\r\ntrademark registration for the ‘GEMS’ product in India is for the word mark\r\n‘CADBURY’S MILK CHOCOLATE GEMS’, vide Trademark Application\r\nNo.249360 dated 20th May, 1968 in Class 30 used in respect of goods being\r\n‘Milk Chocolate’. Its gross sales value, as depicted above, is more than Rs.\r\n1487.56 millions, as in the year 2010.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. The Plaintiff’s product branded as ‘CADBURY GEMS’/‘GEMS’ and\r\nthe packaging thereof is known to the young and old alike. The packaging of\r\nthe Plaintiffs’ ‘GEMS’ product is very unique with illustrations of colourful\r\nbutton chocolates, on a blue/purple base with the mark ‘GEMS’ depicted in\r\na number of colours and a splash in the middle. The Plaintiff’s GEMS\r\nproduct is one of the most popular and well-recognized chocolate products\r\nin India. Almost everyone’s childhood is associated with the consumption of\r\nthe Plaintiff’s ‘CADBURY GEMS’/‘GEMS’.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. The Plaintiffs have obtained copyright registrations in respect of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">artistic works set out hereinabove, involving a character referred to as\r\n‘GEMS BOND’ and used as an advertisement/promotion. Various\r\nadvertisements of ‘GEMS’ bear the image of ‘GEMS BOND’ and some\r\nsamples of the same have also been placed on record. The Defendant’s\r\npackaging uses the mark ‘JAMES BOND’/ ‘JAMEY BOND’ with the same\r\nblue/purple base and colourful button chocolates. The mark ‘GEMS’ is\r\ndepicted in a brown background in the Plaintiff’s product, so also, in the\r\nDefendant’s products. The entire colour scheme of the Defendant’s product\r\nis identical to that of the Plaintiffs’ label and packaging. The marks are also\r\nconfusingly and deceptively similar.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>31. Similar is the view taken by the ld. Single Judge of this Court in ITC\r\nLtd. v. Brittania Industries Ltd. [233 (2016) DLT 259], wherein the\r\nPlaintiff sought to restrain the Defendant from violating its rights in the\r\nPlaintiff’s packaging/trade dress of ‘Sunfeast Farmlite Digestive – All\r\nGood’ biscuit by using a deceptively and confusingly similar trade dress for\r\nits ‘Nutri Choice Digestive Zero’ biscuit</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32. In the background of the legal position captured above, it is to be\r\nnoted that in the present case, the products in question are chocolates which\r\nmay be consumed by young and old alike. The ‘GEMS’ product is also\r\nusually consumed by small children, both in urban and rural areas. The test\r\nin such a matter is not that of absolute confusion. Even likelihood of\r\nconfusion is sufficient. A comparison of the Defendant’s infringing product\r\nand the packaging thereof leaves no manner of doubt that the same is a\r\ncomplete knock-off, of the Plaintiffs’ ‘CADBURY GEMS’. The significant\r\nfact is that these products are sold not only in bigger packs, but also in\r\nsmaller pillow packs, due to which the mark may not even be fully visible.\r\nThe smallest selling unit of the Plaintiffs’ product i.e., the pillow pack, is\r\neven available for 1 rupee to 5 rupees. Hence, the product’s get up, layout,\r\nas also, the colour combination of the packaging plays a significant role at\r\nthe point of purchase. Moreover, chocolates are sold not merely in big retail\r\nstores or outlets, but also, in road side shacks, paan shops, patri vendors,\r\nkirana stores and stalls outside schools, etc. Thus, there is an immense\r\nlikelihood of confusion, particularly considering the class of consumers that\r\nthe product is targeted at, that is, children</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>33. In view of the foregoing factors and the resemblance in the product\r\npackaging, as also, the phonetic similarity between the marks used in respect\r\nof the Plaintiffs’ and Defendant’s products, the issues framed by the Court in\r\nthe present suit are answered as below:<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Issue No.1. Whether the Plaintiffs are entitled to the relief of permanent\r\ninjunction as prayed in prayer clause ‘A’ of the Plaint? (OPP)</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\nIssue No.2. Whether the Plaintiffs are entitled to the relief of mandatory\r\ninjunction as prayed in prayer clause ‘B’ of the Plaint? (OPP)<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Issue Nos.1 and 2 are taken together. In view of the evidence led by\r\nthe Plaintiffs and the foregoing discussion as to the blatant infringement of\r\nthe Plaintiffs’ trademark and copyright, the present two issues are answered\r\nin the affirmative. Accordingly, Issue Nos.1 and 2 are decided in favour of\r\nthe Plaintiffs and against the Defendant.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Issue No.3. Whether the Plaintiffs are entitled to damages? If yes, to what\r\nextent? (OPP)</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In view of the contumacious conduct of the Defendant in infringing\r\nthe well-known mark, label and packaging of the Plaintiffs, this Court is\r\nconvinced that the present is a fit case for the award of damages.\r\nAccordingly, Issue No.3 is decided in favour of the Plaintiffs and against the\r\nDefendant.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Issue No.4. Whether the Plaintiffs are the registered proprietor of the\r\ntrademarks as mentioned in paragraph 6 of the Plaint in India? (OPP)\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Plaintiffs have placed on record the certified copies of the legal\r\nproceeding certificates relating to the trade mark registrations in respect of\r\nits ‘GEMS’ product obtained in India. The same are exhibited as Ex.PW 1/3\r\n(Colly). A perusal of the same establishes that the Plaintiffs are the\r\nregistered proprietor of the marks as mentioned in paragraph 6 of the Plaint.\r\nAccordingly, Issue No.4 is decided in favour of the Plaintiffs and against the\r\nDefendant.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Issue No.5. Whether the Plaintiffs are the copyright owners of the artistic\r\nwork with respect to a character known as “GEMS BOND”? (OPP)\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Plaintiffs have placed on record the certified copies of the\r\ncopyright registration certificates for its artistic works in respect of the\r\ncharacter ‘GEMS BOND’. The same is exhibited as Ex.PW 1/6 (Colly).\r\nAfter perusing the said copyright registrations, the present issue is answered\r\nin the affirmative. Accordingly, Issue No.5 is decided in favour of the\r\nPlaintiffs and against the Defendant.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Issue No.6. Whether the acts of the Defendant constitute infringement of\r\nthe registered trademarks of the Plaintiffs? (OPP)\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Issue No.7. Whether the acts of the Defendant constitute passing off its\r\ngoods as and for the goods of the Plaintiffs? (OPP)\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Issue Nos.6 and 7 are taken together. This Court has perused the ex\r\nparte evidence filed on behalf of the Plaintiffs. The discussion above clearly\r\nshows that the acts of the Defendant constitute infringement of registered\r\ntrademarks of the Plaintiffs, as also, passing off. Accordingly, Issue Nos.6\r\nand 7 is decided in favour of the Plaintiffs and against the Defendant.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Issue No.8. Whether the trademark/label of the Defendant, annexed as\r\nAnnexure B to the Plaint is different and not deceptively similar to the\r\nPlaintiff’s trademark/label attached as Annexure A to the Plaint? (OPD)\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The packaging/mark/label of the Defendant are a substantial imitation\r\nand similar to the Plaintiffs’ mark/label/packaging. The onus to prove the\r\ndifferences is on the Defendant. As discussed above, no substantial defence\r\nhas been taken by the Defendant in its written statement, except for claiming\r\nthat the Defendant’s products are different from the Plaintiffs’ product. No\r\nadvertisement or other documents have been placed on record and no <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">evidence has been led by the Defendant. Accordingly, Issue No.8 is decided\r\nin favour of the Plaintiffs and against the Defendant.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Issue No.9. Whether the impugned trademark annexed as Annexure A to\r\nthe unamended Plaint is common to trade? (OPD)</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Defendant has failed to establish that the Plaintiffs’ mark\r\n‘CADBURY GEMS’/‘GEMS’ is common to trade. The present issue is\r\nanswered in the negative. Accordingly, Issue No.9 is decided in favour of\r\nthe Plaintiffs and against the Defendant.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. The present is a commercial suit, which has remained pending since\r\nthe year 2005. The Defendant has been irregular in its appearance before the\r\nCourt and has contributed to the delay. Even otherwise, the Defendant has\r\nbeen proceeded against ex parte and has not led any evidence. The defence\r\nof the Defendant did not stand proved, especially in view of the competing\r\npackagings which have been exhibited and placed on record. The Defendant\r\nhas also not denied having sold chocolates under the infringing packaging.\r\nThe search report of the Defendant placed on record shows that the\r\nDefendant had adopted a packaging with the same illustrations and\r\nblue/purple colour as that of the Plaintiffs’ product. Therefore, the impugned\r\npackaging of the Defendant’s product sold under the mark ‘JAMES\r\nBOND’/‘JAMEY BOND’ has clearly infringed the Plaintiffs’ rights in the\r\nmark ‘CADBURY GEMS’, as also, the copyright in respect of the products\r\nsold under the said mark.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">35. An interim injunction has been operating in the present suit since 25th\r\nMay, 2007. For some time, contempt was alleged by the Plaintiff and an\r\napplication under Order XXXIX Rule 2A CPC was sought to be filed.\r\nHowever, at the time of final arguments, no submission has been made to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the effect that the Defendant’s products continued to be available in the\r\nmarket. Accordingly, the reliefs sought in respect of delivery up and for\r\nrecall of the Defendant’s products are not granted at this stage. However, if\r\nthe Plaintiffs finds any infringing products in the market, they are free to\r\nseek execution of the decree, seeking delivery up, at that stage.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>36. The Plaintiffs have further spent a substantial amount of money\r\ntowards litigation costs, including court fee, counsels’ fees and\r\nmiscellaneous expenses. Therefore, considering the observations of the\r\nSupreme Court on the issue of costs to be awarded in commercial matters in\r\nUflex Ltd. v. Government of Tamil Nadu & Ors. [Civil Appeal Nos.4862-\r\n4863 of 2021, decided on 17th September, 2021], as also, in terms of the\r\nCommercial Courts Act, 2015 and the Delhi High Court (Original Side)\r\nRules, 2018 read with Delhi High Court Intellectual Property Division\r\nRules, 2022, this is a fit case for grant of actual costs.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>37. In view of the above findings, the present suit is decreed in terms of\r\nthe reliefs of permanent and mandatory injunction as sought in paragraphs\r\n(A) and (B) of the prayer clause as set out in the Plaint.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>38. Insofar as the relief of damages as sought in paragraph (C) of the\r\nprayer clause is concerned, the present is a fit case for award of damages.\r\nAccordingly, in view of the flagrant violation of the Plaintiffs’ rights,\r\ndamages to the tune of Rs.10 lakhs are awarded in favour of the Plaintiffs.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>39. Accordingly, actual costs of Rs.15,86,928/- are awarded in favour of\r\nthe Plaintiffs, in terms of the relief as sought in paragraph (D) of the prayer\r\nclause as set out in the Plaint. Let the statement of costs filed by the\r\nPlaintiffs be taken on record.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">40. The Defendant shall pay the costs and damages to the Plaintiffs,</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">within three months, failing which, the Plaintiffs shall be permitted to seek\r\nexecution of the decree or avail of its remedies, in accordance with law.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n41. Decree sheet be drawn accordingly. All pending applications are also\r\ndisposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a696e06dc073168c762a3d44f7c5398e.jpg', '570928beec10bd309b87b6a3b975eb9f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-28', 1, '', '', '2022-07-27 18:33:03', '2022-07-28 06:39:53'),
(2003, 'fUlQ1xGpTOtsXeKZ5qvAg46p0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘’ACB blissfully ignored the ABC of procedure’’. Karnataka High Court quashes criminal proceedings initiated pursuant to casual act of drawing up source information report, registering FIR and conducting the search by the Anti Corruption Bureau. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K.R. Kumar Naik Vs The State by Anti Corruption Bureau.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 7911 of 2022 decided on 26 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is before this Court calling in question registration of crime in Crime No.24 of 2022 for offences punishable under Section 13(1)(b) read with 13(2) of the Prevention of Corruption Act, 1988 (‘the Act’ for short). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Succinctly stated, facts germane for a decision are as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is a public servant working as an Executive Engineer in the Karnataka Power Transmission Corporation  Limited.  This  case  brings  out  a  strange circumstance where the petitioner is hauled into the impugned proceedings. A little background for such hauling of the petitioner into the web of the provisions of the Act is that, a crime in Crime No.23 of 2022 was registered against one Sri J.Jnanendra Kumar, Additional Commissioner for Transport by the respondent/Anti-Corruption Bureau. The crime against one Sri J.Jnanendra Kumar was registered on 15-03-2022 on an allegation that he possessed disproportionate assets to the known source of income. In connection with the case registered against one Sri J.Jnanendra Kumar the house of one Sri Munavar Pasha was searched on 16.03.2022, the next day of registration of crime against Sri J.Jnanendra Kumar in Crime No.23 of 2022. During the search two travel bags and one carton box were found which were said to be belonging to the petitioner. Based on the search conducted in Crime No.23 of 2022 a source report was immediately prepared against the petitioner alleging that the petitioner had amassed wealth disproportionate to his known source of income on the very day i.e., 16-03-2022 and based upon the said source report a fresh crime came to be registered in Crime No.24 of 2022, also on the very day i.e., 16-03-2022 for offences punishable under Section 13(1)(b) and 13(2) of the Act against the petitioner. Pursuant to registration of FIR on 16-03-2022 the respondent/ACB conduct a raid/search on the house and office of the petitioner. It is the registration of crime in Crime No.24 of 2022 that drives the petitioner to this Court in the subject petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. It is not in dispute that the employer of the petitioner is the Karnataka Power Transmission Corporation Limited to whom assets and liabilities statement is to be submitted by the petitioner and the claim is it has been submitted. It is further not in dispute that a crime in Crime No.23 of 2022 was registered against one Sri J.Jnanendra Kumar on 15-03-2022. In connection with Crime No.23 of 2022 house of one Munavar Pasha was searched which was a product of preliminary enquiry conducted by the ACB against Sri J.Jnanendra Kumar, who allegedly had links with Sri Munavar Pasha. While searching the house of Sri Munavar Pasha two travel bags and one carton box, neither belonging to Sri Munavar Pasha nor Sri J.Jnanendra Kumar were  found.  They  were  allegedly  belonging  to  the petitioner. This fact is told by the lady in the house of Sri Munavar Pasha at the time of search that they belong to the owner of Flat No.21, which flat belonged to the petitioner, in the apartment complex. The ACB immediately went back, prepared a source report, registered a FIR and conducted search in the house and office of the petitioner on 17-03-2022.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. The house of the petitioner was searched on the basis of FIR registered on 16-03-2022 after drawing up a source information report which also was prepared on 16-03-2022. Therefore, the dates assume significance. On 15-03-2022 in connection with Crime No.23 of 2022 of some other person, the house of a person connected with the said crime was searched and articles belonging to the petitioner who was the neighbour of the said flat were found and immediately thereafter on the very same day a source information report was prepared and FIR was registered for offences punishable under Section 13(1)(b) and 13(2) of the Act against the petitioner. Thus, it becomes necessary to notice Section 13(1)(b) and 13(2) of the Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Section 13(1) deals with a public servant who is said to have committed an offence of criminal misconduct. Criminal misconduct would be, if he intentionally enriches himself illicitly during the period of his office. Explanation offered to Section 13(1)(b) is that the person is presumed to have intentionally enriched himself illicitly, if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income, which the public servant cannot satisfactorily account for. Known source of income is also explained.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. Therefore, to charge a public servant with Section 13(1) which deals with criminal misconduct, and being in possession of assets disproportionate to his known source of income, there must be a basis. The basis emanates from a report. The report in corruption parlance is a source information report. A source information report cannot be generated at the drop of the hat. It is a responsible work of a responsible officer i.e., Inspector of Police, under the guidance and supervision of a superior police officer, a Deputy Superintendent of Police and it has to be drawn up after calculating entire period of service of a public servant and arrive at a conclusion albeit, prima facie, that he has amassed wealth disproportionate to his known source of income. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. These are the broad contours of generation of a source information report which can become criminal misconduct as obtaining under Section 13(1) of the Act which would become punishable under Section 13(2) of the Act. An allegation of criminal misconduct on a public servant is serious one. Therefore, it cannot be a casual or a frolicsome act of the ACB in preparing the source information report at the drop of the hat. The importance of the source report being thus, it is germane to notice the source information report generated in the case at hand, which on the face of it, depicts it being prepared in a hottest haste.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. The law also contemplates conduct of a preliminary inquiry in cases of corruption alleged as against public servants. The Apex Court right from the judgment in the case of P.SIRAJUDDIN v. STATE OF MADRAS1 has clearly held that before a public servant, whatever be his status, is publicly charged with acts of dishonesty,  some  suitable  preliminary  inquiry  into  the allegations by a responsible officer should be made. It could be in the nature of source information report or otherwise.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>On the bedrock of the principles laid down by the Apex Court in the cases of P.SIRAJUDDIN, LALITA KUMARI and CHARANSINGH, if the case at hand is considered, what would unmistakably emerge is that the entire proceedings instituted by the ACB against the petitioner cannot but be termed to be a mockery of the procedure. The very perusal of the source information report which had to contain all the particulars would indicate that it does not contain any particulars. It was no source information report in the eye of law. In cases where a public servant is charged with offences punishable under Section 13 of the Act to become punishable under Section 13(2) of the Act, as they deal with amassing wealth disproportionate to the known sources of income, every ingredient that is required to be assessed in the source report must be present. The check period, the period of service of the accused Government servant and the sources of income should be assessed albeit, by a preliminary inquiry to arrive at a prima facie conclusion that the officer is liable to be proceeded against for criminal misconduct.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. The afore-quoted incident of discovery of certain material allegedly belonging to the petitioner could at best have triggered the conduct of a preliminary enquiry and could not become the basis for registration of an FIR, as has been done. There is no preliminary inquiry worth the name that is even conducted by the ACB in the case of the petitioner as every act of the ACB i.e., preparation of the source information report, registration of FIR and conduct of search on the house of the petitioner have all happened on one single day – 24 hours. A source information report, according to the norm or procedure what is followed by the ACB, requires an Inspector of Police to conduct such enquiry and collect those documents which would become a part of a source information report and such source information report is to be placed before the Deputy Superintendent of Police who would then give his nod for registration of the crime. These procedures and the time required for these procedures are thrown to the winds. A perusal at the original records that were placed before the Court would also indicate no collection of any material, in the nature of preliminary inquiry or a source information report taking place prior to registration of the FIR. All that the file contains is the search conducted in Crime No.23 of 2022 concerning some other officer and that material being used against the petitioner to register the crime in Crime No.24 of 2022. Every record is sought to be built up subsequent to the said date i.e., the date of registration of the crime against the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. Therefore, it becomes a fit case, where this Court cannot turn a blind eye to the plea of petitioner for exercise of jurisdiction of this Court under Section 482 of the Cr.P.C. and obliterate registration of crime against the petitioner, failing which, it would become a classic illustration of a case becoming an abuse of process of law and resulting in miscarriage of justice and above all, putting a premium on the action of the ACB, notwithstanding the fact that \'the ACB blissfully ignored the ABC of procedure\'.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. O R D E R</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Writ Petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '41e6654af956dd675a241dbd91336d5e.JPG', 'eef118b5c630a982d0bcd264233769ea.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-27', 1, '', '', '2022-07-27 16:35:47', '2022-07-27 11:40:21');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2006, 'FEjEzDbKmdsotx6BgVIHmuX62', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Repugnancy may arise between two enactments even though obedience to each of them is possible without disobeying the other. Test of two legislations containing contradictory provisions cannot be the determining criterion. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>All Kerala Distributors Association Kottayam Unit Vs The State of Kerala and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4502 of 2009 decided on 27 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A.M. Khanwilkar, Justice Abhay S. Oka and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">1. These appeals involve challenge to the constitutional validity of\r\nsub-sections (7) and (8) of Section 4 [introduced by way of the Kerala\r\nMotor Vehicles Taxation (Amendment) Act, 2005 1\r\nin the Kerala </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Motor Vehicles Taxation Act, 19762\r\n], Section 15 of the 1976 Act and\r\nSection 8A of the Kerala Motor Transport Workers’ Welfare Fund Act,\r\n19853\r\ninserted by Act 23 of 2005.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2. The thrust of the challenge is on the ground that the State\r\nLegislature by way of stated amendments to the welfare legislation\r\nhas effectively bootstrapped the obligation to make contribution to\r\nthe workers’ welfare fund with the obligation to pay tax for operating\r\nmotor vehicles. In other words, the welfare legislation is intertwined\r\nwith the compensatory legislation by the impugned Amendment Act\r\nof 2005 and together they substantially encroach and override the\r\nrelevant provisions of the Central legislation i.e., the Motor Vehicles\r\nAct, 19884\r\nto paralyse the Stage and Goods Carriage Operation or to\r\nundermine the effectiveness of the transport permit provided under\r\nthe 1988 Act.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. The 1976 Act was enacted by the State Legislature when the\r\nerstwhile Motor Vehicles Act, 19395 was in force. It was so enacted\r\nunder Entry 56 (Taxes on goods and passengers carried by road or\r\non inland waterways) and Entry 57 (Taxes on vehicles, whether\r\nmechanically propelled or not, suitable for use on roads, including\r\ntramcars subject to the provisions of entry 35 of List III) of List II of\r\nthe Seventh Schedule to the Constitution. Section 15 of the 1976\r\nAct postulates that non-payment of tax due in respect of a transport\r\nvehicle within the prescribed period would render the transport\r\npermit for such vehicle ineffective from the date of expiry of the said\r\nperiod until such time as the tax is actually paid. The State of Kerala\r\nhad sought Presidential assent for the 1976 Act and the same was\r\ngranted on 25.3.1976. However, in due course, the 1939 Act was\r\nrepealed by the Parliament and it was replaced by the 1988 Act,\r\nintroducing a new regime to consolidate and amend the law related\r\nto motor vehicles. This Act (the 1988 Act) was enacted by the\r\nParliament under Entry 35 of List III (Mechanically propelled <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">vehicles including the principles on which taxes on such vehicles are\r\nto be levied). Chapter V of the 1988 Act deals with control of\r\ntransport vehicles, including the procedure of Regional Transport\r\nAuthority in considering application for stage carriage permit and\r\nthe duration and renewal of permits. According to the appellants,\r\nthe 1988 Act exhaustively covered all aspects of grant, control and\r\nvalidity of transport permits. Further, the State of Kerala did not\r\nseek Presidential assent in respect of the State Act i.e., 1976 Act,\r\nafter coming into force of the Central Act, despite the repugnancy\r\nbetween the existing State Act and the newly introduced the 1988\r\nAct.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. It is urged that the amendments to the 1976 Act as also to the\r\n1985 Act, including Section 15 of the 1976 Act, are unconstitutional\r\nas the entire field is already occupied by the Central Act of 1988,\r\nwith respect to permits to be issued for operating transport vehicles.\r\nThus, the provisions of the State Act(s) referred to above are\r\nrepugnant to the Central Act and that no Presidential assent had\r\nbeen obtained by the State of Kerala despite the repugnancy with\r\nthe Central Act. Further, even if there is no direct conflict, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">impugned provisions in the State Act(s) are ultra vires for want of\r\nlegislative competence.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Dealing with the challenge to the validity of the stated\r\nprovisions in the State enactments, the Division Bench of the High\r\nCourt plainly opined that there was no lack of legislative competence\r\nin the State Legislature and that the 1976 Act as well as the 1985\r\nAct, fall substantially within the powers expressly conferred upon\r\nthe State Legislature which had enacted both the legislations,\r\nincluding the Amendment Act of 2005. It further held that merely\r\nbecause the 1976 Act had also dealt with a subject which falls under\r\nEntries 23 and 24 of List III of the Concurrent List, it cannot be held\r\nthat the provisions of the 1976 Act are bad in law. To buttress the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">view taken by it, the High Court relied upon the exposition in\r\nA.L.S.P.P.L. Subrahmanyan Chettiar vs. Muttuswami\r\nGoundan ; Prafulla Kumar Mukherjee & Ors. vs. Bank of\r\nCommerce Ltd., Khulna; The State of Bombay & Anr. vs. F.N.\r\nBalsara; and M. Karunanidhi vs. Union of India. The High\r\nCourt opined that the State enactments and the impugned\r\namendments substantially fall within the powers expressly conferred\r\nupon the State Legislature and cannot be held to be invalid solely\r\nbecause it incidentally touches upon another legislation. The\r\ndoctrine of pith and substance would clearly get attracted in the fact\r\nsituation of the present case.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. In substance, the High Court has noted that the permit holders\r\nwere neither disputing their obligation to pay vehicle tax under the\r\n1976 Act nor are they denying the obligation to pay contribution\r\ntowards the welfare fund under the 1985 Act. The purport of the\r\nimpugned amendments, including Section 15, was merely to ensure\r\nthat both these obligations are duly discharged so as to permit the\r\ntransport operators to continue with their business uninterrupted.\r\nIt is neither a case of levy of tax not permitted under the 1988 Act\r\nnor deviating from the spirit of the said Act, which clearly predicates\r\nthat for grant of stage carriage permit, the Regional Transport\r\nAuthority is obliged to consider the satisfactory performance of the\r\napplicant as a stage carriage operator, including payment of tax by\r\nthe applicant. The provision(s) in the State Legislation is not to\r\nsuspend the permit issued under the 1988 Act, but the expression\r\n“ineffective” ought to be construed as enabling the permit holder to\r\navail of the permit only upon payment of vehicle tax under the 1976 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Act, as amended from time to time. On this analysis, the High Court\r\nrejected the challenge and dismissed the writ petitions and writ\r\nappeals vide impugned judgment.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. After cogitating over the oral arguments and perusing the\r\nwritten submissions, it needs to be noted at the outset that there is\r\nno challenge on the ground of legislative competence in respect of\r\nthe 1976 Act and amendments thereto as well as the 1985 Act as\r\namended. The argument is essentially about repugnancy owing to\r\nthe application of the State laws to the vehicle permit issued under\r\nthe law made by Parliament.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34. Keeping in mind the exposition of this Court in the\r\naforementioned decisions, we would immediately turn to the Act\r\nenacted by the Parliament in 1988. This Act had repealed the\r\nerstwhile Motor Vehicles Act, 1939. The Parliament has obviously\r\nenacted the 1988 Act in reference to Entry 35 in List III – Concurrent\r\nList which concerns the mechanically propelled vehicles including\r\nthe principles on which taxes on such vehicles are to be levied.\r\nNotably, the 1988 Act provides for procedure of Regional Transport <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Authority in considering application for stage carriage permit as\r\npredicated in Section 7150 of the 1988 Act. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Authority while </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">considering an application for grant of a stage carriage permit is\r\nobliged to have regard to the objects of the 1988 Act including about\r\nthe satisfactory performance of the applicant as a stage carriage\r\noperator and payment of tax [Section 71(3)(d)(ii)]. The other relevant\r\nprovision for considering the subject-matter of this appeal is Section\r\n81 dealing with duration and renewal of permits. It postulates that\r\nthe permit issued by the Authority under the Act shall be effective\r\nfrom the date of issuance or renewal thereof for a period of five years.\r\nThe proviso to sub-section (1) envisages that where the permit is\r\ncountersigned under sub-section (1) of Section 88, such\r\ncountersignature shall remain effective without renewal for such\r\nperiod so as to synchronise with the validity of the primary permit.\r\nWe are not concerned with the effect of the proviso in the present\r\ncase. The relevant sub-section dealing with the power of the\r\nAuthority to reject an application for the renewal of a permit is subsection (4) of Section 81. It provides for the grounds on which the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">renewal of a permit can be rejected. The same includes plying any\r\nvehicle without payment of tax due on such vehicle; and on any\r\nunauthorised route. Besides these provisions, there is nothing in\r\nthe 1988 Act to deal with the manner of levy of vehicle tax or the\r\ncollection thereof. In other words, the law made by the Parliament\r\ndoes not occupy the field of manner of levy of vehicle tax and\r\ncollection thereof. If so, it is not possible to hold that there is direct\r\nconflict between the two provisions, namely, in the law made by the\r\nParliament and by the State Legislature. Furthermore, on analysing\r\nthe legislative intent and the efficacy of the impugned provisions\r\nenacted by the State Legislature concerning the manner of levy of\r\nvehicle tax and collection thereof, it will be amply clear that\r\nobedience to each of the laws (made by the Parliament and State\r\nLegislature) is possible without disobeying the other. We shall\r\nelaborate on this aspect while dealing with efficacy of the law made\r\nby the State Legislature a little later. Suffice it to observe that the\r\nargument regarding repugnancy is devoid of merit.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>35. As regards the 1976 Act enacted by the State Legislature, the\r\nsame is ascribable to Entries 56 and 57 of List II – State List. Entry\r\n56 deals with taxes on goods and passengers carried by road or on\r\ninland waterways. Entry 57 deals with taxes on vehicles, whether\r\nmechanically propelled or not, suitable for use on roads, including\r\ntramcars subject to the provisions of Entry 35 of List III. In one\r\nsense, the law made by the State Legislature is also ascribable to\r\nEntry 35 of List III under which the Parliament has already enacted\r\n1988 Act. However, as aforementioned, the law made by the\r\nParliament, being 1988 Act, does not touch upon or deal with the\r\nfield of manner of levy of vehicle tax and collection thereof. Whereas,\r\nthe 1976 Act enacted by the State Legislature is to consolidate and\r\namend the laws relating to the levy of tax on motor vehicles and on\r\npassengers and goods carried by such vehicles in the State of Kerala.\r\nThe levy of tax is spelt out in Section 3 of this Act. Section 4 deals\r\nwith payment of tax and issue of licence. The writ petitioners have\r\nchallenged the amendment made to this provision vide Act 24 of\r\n2005 inserting sub-sections (7) and (8) therein. By this amendment,\r\nit is provided that every registered owner or person having <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">possession or control of a motor vehicle in respect of a motor\r\ntransport undertaking liable to pay contribution under the 1985 Act\r\nshall, before effecting payment of vehicle tax under the 1976 Act,\r\nproduce before the Taxation Officer the receipt of remittance of the\r\ncontribution towards welfare fund due upto the preceding month\r\nand failure to do so, would entail in refusal to collect the vehicle tax\r\nunder the 1976 Act. In the context of this provision, it has been\r\nurged that such a provision is in the nature of bootstrapping of two\r\ndifferent liabilities. Section 851 mandates production of certificate of\r\ninsurance by every registered owner or person having possession or\r\ncontrol of a motor vehicle. Section 952 fastens liability to pay vehicle </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">tax by person succeeding to the ownership, possession or control of\r\nmotor vehicles. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36. From the scheme of the 1976 Act, it is amply clear that it is\r\nspecific to levy of tax on motor vehicle and passengers and goods\r\ncarried by such vehicle in the State of Kerala. It is not a law\r\nregulating the issuance of a permit by the Authority under the 1988\r\nAct as such. Indisputably, the permit issued by the Authority is\r\nhedged with conditions including the condition of regular payment\r\nof vehicle tax. Section 15 provides for the consequences for nonpayment of tax consistent with Sections 10 and 11 of the 1976 Act.\r\nThus understood, there is no occasion for conflict between the two\r\nprovisions much less repugnancy.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>37. As regards the argument regarding bootstrapping of liabilities\r\nof permit-holder under two different State legislations, it is to say <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the least tenuous. It is open to the Legislature to combine levies for\r\nother purposes, such as education cess, etc., for collection of tax due\r\nand payable by the same tax-payer. It is one thing to say that the\r\nperson is being compelled to discharge liability under two different\r\nState enactments, although he is not liable under one of the two.\r\nThat is not the argument of these writ petitioners. The petitioners\r\nare not disputing their liability under both the State Enactments.\r\nThe argument, however, is that the writ petitioners may intend to\r\ninvoke remedy of appeal and revision in respect of liability fastened\r\nunder the 1985 Act. This argument has been rightly negatived by\r\nthe High Court in paragraph 18 of the impugned judgment by\r\nobserving that sufficient safeguard has been provided under the\r\nrelevant enactment to file appeal/revision by remitting 50 per cent\r\nof the amount demanded. The High Court issued directions in that\r\nregard in paragraph 19 of the impugned judgment. A circular has\r\nbeen issued on 16.6.2007, clarifying that the aggrieved person, who\r\nprefers appeal on payment of 50 per cent of the contribution under\r\nthe Welfare Fund Act, is entitled to get a certificate to that effect and\r\non production of that certificate before the Taxing Authorities, the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">vehicle tax could be received by the Authority without payment of\r\nthe entire Welfare Fund of contributions. The High Court has\r\nalready issued directions to extend similar benefit even in cases\r\nwhere review petition is filed within the prescribed time. The fact\r\nremains that no prejudice whatsoever is caused to the permit-holder\r\nwho intends to pursue remedy under the 1985 Act against the\r\ndemand received by him relating to the contribution of the Welfare\r\nFund.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>38. Reverting to the 1985 Act enacted by the State Legislature,\r\nindisputably, it is a welfare legislation constituting a fund to promote\r\nthe welfare of motor transport workers in the State of Kerala. This\r\nAct is ascribable to Entries 23 and 24 of List III – Concurrent List.\r\nEntry 23 deals with social security and social insurance;\r\nemployment and unemployment and Entry 24 deals with welfare of\r\nlabour including conditions of work, provident funds, employers’\r\nliability, workmen’s compensation, invalidity and old age pensions\r\nand maternity benefits. Ostensibly, it may appear that the liability\r\narising from the obligations under the 1985 Act have nothing to do <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">with the subject of vehicle tax. However, the 1985 Act has been\r\nenacted with the objects and reasons noted. As a vast number of\r\nemployees were being engaged in Motor Transport Industry in the\r\nState in the private sector, the Government thought it necessary to\r\nprovide for the constitution of a Fund to promote the welfare of such\r\nof the motor transport workers in the private sector who are not\r\ncovered by the Employees’ Provident Funds and Miscellaneous\r\nProvisions Act, 1952 and the Payment of Gratuity Act, 1972. In\r\nother words, this Act came into being to ameliorate the difficulties\r\nencountered by the motor transport workers in the State of Kerala.\r\nIn due course, it came to the notice of the Government that the\r\nsystem of determination and assessment of contribution from\r\nemployers and adjudication of disputes, etc., as provided for in the\r\n1985 Act had certain loopholes resulting in loss of welfare fund\r\ncontribution. In that, the bus operators set forth a defence by\r\ncreating bogus partnerships and showing relatives as employees to\r\nevade payment of contribution. Another device was to keep on\r\nchanging the employees frequently. Thus, to check this mischief, an\r\namendment was effected to the 1985 Act vide Act 23 of 2005 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">including to reduce the arbitrariness in fixing the contribution. The\r\nactivities of motor transport workers are directly linked to the use\r\nand operation of the motor transport vehicles having permit issued\r\nunder the 1988 Act in that regard. Under the said Act, the permitholder is obliged to ensure that the vehicle tax is paid regularly. The\r\nlaw clearly provides for action to be taken against the motor\r\ntransport vehicle for failure to pay vehicle tax including to reject\r\nrenewal of the permit. The stipulation in the 1985 Act is in the\r\nnature of ensuring that the vehicle owner/permit-holder discharges\r\nboth the liabilities and does not commit default in contributing to\r\nthe welfare fund as also pay vehicle tax on time. Non-payment of\r\nvehicle tax may entail in stopping of motor vehicle by the Officers of\r\nPolice or Motor Vehicles Department in exercise of power under\r\nSection 10 of the 1976 Act including to seize and detain the same\r\npending production of proof remittance of tax as predicated in\r\nSection 11 of the Act. Additionally, the vehicle owner may have to\r\nsuffer penalty under Section 16 53 and face prosecution under </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 1754, besides the permit being rendered ineffective if tax is\r\nnot paid by virtue of Section 15.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>40. Concededly, the appellants have not disputed their liability to\r\npay the vehicle tax levied under the 1976 Act as well as to pay\r\ncontribution towards the workers’ welfare fund under the 1985 Act.\r\nSo understood, the real grievance in these appeals by the motor\r\ntransport vehicle owners/permit-holders is about compelling them\r\nto pay the welfare contribution dues as a precondition for collection\r\nof vehicle tax. We have no hesitation in taking the view that such\r\ndispensation cannot be construed as unconstitutional. Further,\r\nsuch a plea cannot be countenanced at the instance of someone who\r\notherwise concedes liability to pay both the dues towards welfare\r\nfund contribution and vehicle tax. It is beyond comprehension that\r\nthe vehicle owner/permit-holder can be heard to argue that he would <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not pay the dues under the 1985 Act and, yet, would continue with\r\nthe business of motor transport as usual in the State of Kerala by\r\nexploiting the workers on the specious plea that the validity of the\r\npermit to operate transport vehicle cannot be interdicted under a\r\nState legislation. The provision in the form of Section 15 of the 1976\r\nAct is in the nature of restating the consequences flowing from\r\nSections 10 and 11 of the same Act to stop motor vehicle and to seize\r\nand detain the same if being used or operated without payment of\r\nvehicle tax. When action is taken by the competent authority under\r\nSections 10 and 11 of the Act, inevitably, the transport vehicle in\r\nquestion for which permit has been taken is rendered unusable due\r\nto non-payment of vehicle tax. The liability of the vehicle\r\nowner/permit-holder to pay welfare fund contribution as well as to\r\npay vehicle tax arises under the legislation enacted by the State\r\nLegislature. As such, there is nothing wrong in State Legislature\r\nmaking it compulsory to pay outstanding welfare fund contribution\r\nfirst before accepting the vehicle tax which had become due and\r\npayable. In this view of the matter, it would be unnecessary to dilate\r\non the argument regarding validity of Section 15 of the 1976 Act </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">because of lack of Presidential assent after coming into effect of the\r\n1988 Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n41. We cannot be oblivious about the legislative intent for enacting\r\nthe 1985 Act and the amendment effected thereto in 2005. The same\r\nis a beneficial legislation with avowed objective to ensure strict\r\ncompliance of payment of welfare fund contribution to protect the\r\nworkers of the commercial operations undertaken by the vehicle\r\nowners/permit-holders pursuant to a permit issued under the 1988\r\nAct, and is to reach out to such workers who are typically\r\nunorganised and a part of informal workforce. Neither the\r\nprovisions of the 1985 Act or the 1976 Act have the effect of\r\ninterdicting the permit issued under the 1988 Act. The real intent\r\nand purpose behind these provisions is to restate the mandate\r\nstated in the 1988 Act that the vehicle cannot be used on road\r\nwithout a valid permit and payment of vehicle tax up to date.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>42. A priori, we have no hesitation in concluding that the provisions\r\nof the 1976 Act and the 1985 Act, enacted by the State Legislature, are only intended to ensure that the vehicle owner/permit-holder\r\ndoes not remain in arrears of either the welfare fund contribution or\r\nthe vehicle tax both payable under the State enactments. These\r\nprovisions are in no way in conflict with the law made by the\r\nParliament (1988 Act). The State enactments do not create any new\r\nliability or obligation in relation to the permit issued under the 1988\r\nAct (Central legislation), but it provides for dispensation to ensure\r\ntimely collection of the welfare fund contribution as well as vehicle\r\ntax payable by the same vehicle owner/permit-holder. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>44. In view of the above, these appeals must fail and the same are\r\ndismissed with costs.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Pending application(s), if any, stands disposed of</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '064e02adbfecd2e52cc8db6efcaf5f6e.jpeg', '372ea0bb7b1c7259fbbde00a028a8737.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-28', 1, '', '', '2022-07-27 17:59:09', '2022-07-28 08:38:45'),
(2008, 'HNf1t1OfMM3pnBk7zT0s3J2ic', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service  Law. Wherever horizontal reservation of eligible candidates are not found, it is the duty of the authorities concerned to then have a vertical reservation. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Dyavappa Marivenkatappa and others Vs Bangalore University and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 6426 of 2021 decided on 20 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Sunil Dutt Yadav.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner has sought for issuance of writ in the nature of mandamus directing respondent nos.1 and 2 to consider the representation at Annexure-\'J\' and \'J1\' and direct respondent nos.1 and 2 to issue an order of appointment to the post of Assistant Professor, Department of Architecture in Bangalore University as regards the vacant post under the category ST (Women). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. It is submitted that the respondent University had invited applications for recruitment as per the Notification at Annexure-\'C\' dated 21.03.2018. Insofar as the specific post which is the subject matter of the present writ petition ie., Assistant Professor, Department of Architecture, the appropriate reservation as indicated in the notification was two posts for Scheduled Tribe (Other Candidate) and (Women) [ST (O) & (W) for brevity]. It is submitted that insofar as recruitment to the Open category is concerned, recruitment was completed however, the recruitment for the category of ST (W) could not be concluded as no candidates has applied for the post earmarked for the particular category. It is further submitted that in the event recruitment could not be concluded, respondent-authority ought to have taken note of the Government Order at Annexure-\'H\' which provides at Clause (7) that in the event as regards to the post, eligible women are not available, such reserved post could be filled up by eligible male candidates of the same category.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. It must be noted that as per Recruitment Notification at Annexure-\'C\' the post of Assistant Professor of Department of Architecture is to be filled up under the main Category of vertical reservation of Scheduled Tribe (ST) and horizontal reservation as regards one post with respect to women and the other post is reserved \'Open\' for the same category. It is accordingly to be construed that the vertical reservation is of ST while horizontal reservation is as regards category of women. The Government Order at Annexure-\'H\' as rightly contended by the learned Senior Counsel appearing for the petitioner is to be treated to be a direction of the State Government under Section 53 (8) of the Karnataka STate Universities Act, 2000</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. It must be noted that reliance is placed also on a letter dated 09.01.2021 whereby the Government as regards the matter pending in W.P.No.21973/2019 had referred to the same Government Order and observed that the said Government Order was applicable even with respect to recruitment in the case of Karnataka State Civil Services (Unfilled Vacancies Reserved for the Persons belonging to the Scheduled Castes and the Scheduled Tribes) (Special Recruitment) Rules, 2001. The said submission and reference requires to be accepted which is also the same stand of the State Government. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. Though the learned counsel for the University has contended that the Government Order at Annexure-\'H\' is not applicable insofar as recruitment under the Special Recruitment Rules is concerned, we find that such submission deserves to be rejected as the Government Order at Annexure-\'H\' does not make any such distinction and would be applicable whether it is recruitment under the General Recruitment Rules or Recruitment as regards backlog vacancies under the Special Recruitment Rules. The direction under the notification at Annexure-\'H\' being a direction under Section 53 (8) requires to be accepted by the University. The reliance on the judgment in Dr.Parappa Shankarappa & Others (supra) is misplaced as the present direction by the State finds its origin in the relevant recruitment rules referred to in Para 12. It must also be noted that recruitment to other post having been completed and as contended by the petitioner a subsequent notification for recruitment also having been made, there is no notification for recruitment as regards category of ST (Women). If that being so, non-filling of the post for ST under the vertical reservation of ST by other eligible women or in the absence by men would prejudice the rights of those under ST Category. Wherever the horizontal reservation of eligible candidates are not found and as provided under the recruitment Rule 9 (b) referred to above as well as Government Order at Annexure-\'H\', it is the duty of the authorities concerned to then have a vertical reservation filled in terms of the Government Order by ST (Women). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17. Accordingly, the respondent No.1 University is directed to take note of the Government Order at Annexure-\'H\' and proceed forthwith to make an order of appointment. The said process is to be completed within a period of three months from the date of receipt of certified copy of this order. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space: pre;\">	</span>Accordingly, the petition is disposed off.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '85d533bf500173f502b388e47503a212.JPG', '8dcc4965085f5ee59dccf0b13bf84aa1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-30', 1, '', '', '2022-07-28 16:29:18', '2022-07-30 08:31:22'),
(2009, 'EMrHipUboM2c8NmaIE1zsnWcI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Fee Revision Committee being quasi-judicial authority must hear the school managements before passing orders revising the fee structure in the private educational institutions. Gujarat High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Namrata B Maheshwari Vs KM Antani<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">R/Special Civil Application 4312 of 2019 decided on 22 July 2022<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Bhargav D. Karia.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">3. Brief facts of the case are that the petitioner no.1 school is run by petitioner no.2 trust. Petitioner no.1 submitted the proposal before the FRC under Rule 6 of the the Gujarat Self Financed Schools (Regulation of Fees) Rules, 2017(for short “Rules,2017”) stating that the petitioner no.1-school was offering education from Pre-Primary school to Class-V and there was no student in Class-VI to Class-VIII. The said proposal was submitted for a period of block of three years from 2018-2019 to 2020-2021. The petitioners also sought permission for commencing education in Class-VI to Class- VIII and accordingly, the petitioners also submitted the proposal on 19.7.2018 for the year 2019-2020 for fixation of the fees for Class-VI to Class-VIII as well.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">8. It is the case of the petitioners that during the course of hearing on 16.1.2019 before the Fee Revision Committee, the Committee was of the view that petitioner-school could not have submitted its proposal for Class-VI to Class-VIII since it did not have the permission for the said classes. According to the petitioners, the petitioners brought to the notice of the Committee the fact that the petitioner no.1 did not commence education in the said classes and further it had no intention to commence classes without due permission and since the fees were to be fixed for block of three years i.e. 2018- 2019, 2019-2020 and 2020-2021 and during the year 2019-2020, the petitioner would have received the permission for Class-VI to Class-VIII, it submitted its proposal for the same. It was also clarified by the petitioners before the Committee that petitioner no.1 school could not be assumed to have any other intention as even proposal for Class-VI to Class-VIII was accepted since there were no students in the year 2018-2019 which would not result into loss to any parent or benefit to the petitioners. Hearing thereafter was concluded.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">9. According to the petitioners on the next date, representative of the petitioners appeared before the office of the Fee Revision Committee and desired to submit its affidavit in reference to the hearing held on 16.01.2019. However, the same was not accepted and at the request of the petitioners, the petitioners were permitted to represent before the Chairperson of the Committee. The petitioners were informed that its representation was understood during the hearing and therefore, the Committee did not deem it necessary to take the affidavit on record. The petitioners however, with an intention of ensuring that affidavit is taken on record, sent the same vide post on 23.1.2019.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">23. With regard to the contention raised by the petitioners that the Fee Revision Committee ought to have considered the revision application on merits, it was submitted by learned Senior Advocate that it was the Fee Revision Committee while considering the matter on merits and during scrutiny and verification of the record came to the conclusion that the petitioners have misled not only the Fee Revision Committee but also the FRC by furnishing inconsistent record and in light of such facts, the Fee Revision Committee has rightly not considered the question of determining the fees in absence of true and correct information. </span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">26. Therefore, without entering into the merits of the case as to whether there was a simple mistake as explained on behalf of the petitioners or there was a deliberate attempt to mislead the FRC as well as the Fee Revision Committee while considering the revision application filed by the petitioners with regard to the factum of mentioning of the proposed fees for Class-VI to Class-X, though application for recognition and permission to start such classes was yet to be made.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">27. The Fee Revision Committee has therefore, passed the impugned order by making assumption and presumption that the petitioner-school would have collected the fees even for Upper Primary and Secondary section by illegally running such section without permission and that there was no mistake on part of the petitioner but it was an intentional act on part of the petitioner to mislead the FRC and Fee Revision Committee and no such proposal was made to start Upper Primary and Secondary classes. The Fee Revision Committee ought to have considered the affidavit of the petitioners and ought to have granted an opportunity of hearing to the petitioners before invoking the provisions of section 14 of the Act, 2017 read with Rule 17 of the Rules, 2017 for levy of fine and directing the petitioners to refund twice the fees collected by it. The Fee Revision Committee ought to have also considered the revision application on merits without being swayed away by the alleged action on part of the petitioners for submitting the fee proposal for Upper Primary and Secondary sections for subsequent two years.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">28. Therefore, without entering into the merits of the case, the impugned order passed by the Fee Revision Committee is hereby quashed and set aside and the matter is remanded back to decide afresh after giving an opportunity of hearing to the petitioners in the interest of justice.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">29. Rule is made absolute to the aforesaid extent. No order as to costs.</span></font></span></p>', '9b18114ab83fd7021dd3eea14a4c1f3f.jpeg', 'dd895e8940ecd51f30ce8bc48cccb694.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-29', 1, '', '', '2022-07-28 16:30:41', '2022-07-29 12:11:37');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2015, 'oPE9nGMGy0XtCIDF6EhyUNR1W', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Though ordinarily, a later enactment may not be a safe external aid for interpreting the preceding enactment, a series of legislative exercises towards the same subject can be referred to while construing the earlier legislation. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nemai Chandra Kumar Thr Lrs and others Vs Mani Square Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2402 of 2015 decided on 27 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A.M. Khanwilkar and Justice Dinesh Maheshwari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1.1. By the orders aforesaid, the Controller and the Tribunal had\r\nconcluded that the present appellants were thika tenants in respect of the\r\nproperty involved in this litigation and the landlord’s interest therein stood\r\nvested in the State under the statutes governing thika tenancies. However,\r\nin the impugned judgment and order dated 10.03.2014, the High Court\r\nconcluded to the opposite and held that the Controller and the Tribunal\r\nwere not justified in accepting the present appellants as thika tenants in\r\nrespect of the property in question.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Put in a nutshell, the issues involved in this appeal revolve around\r\nthika tenancy enactments, as applicable to the property and the tenancy in\r\nquestion. The nature of tenancy created in favour of the appellants and/or\r\ntheir predecessors and impact/implication of the structure put up by them\r\non the property in question form the core of the typical and peculiar\r\nquestions involved in this matter.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. As regards the factual matrix of the present case, a brief chronology\r\nof events could be noticed as follows</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.1. One Laxmi Narayan Ghosh was owner of the land involved herein\r\nadmeasuring 2 Bighas, 10 Kottahs and 3 Chhitacks, more or less, being\r\nHolding No. 196, Picnic Garden, Tiljala . The said Laxmi Narayan Ghosh\r\ndied intestate on or about 23.07.1950 leaving behind his wife Smt. Nilu\r\nBala Ghosh and his son Jitendra Nath Ghosh. Thereafter, Smt. Nilu Bala\r\nGhosh died intestate on 07.12.1970 and Jitendra Nath Ghosh became the\r\nabsolute owner of the subject property.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.2. On 15.12.1973, by a registered deed of lease, Jitendra Nath Ghosh\r\nleased out the subject property to Badri Narayan Kumar and Nemai\r\nChandra Kumar, being the partners of M/s. Kumar Industries, for a period\r\nof 20 years commencing from 01.12.1973 and expiring on 30.11.1993 at\r\nthe rent and on the terms and conditions contained in the said registered\r\ndeed of lease.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.3. By the said deed of lease, the lessees were also given the right to\r\nraise construction on the subject property and to use and enjoy the same\r\nduring the tenure of the lease with a condition that on expiry of the lease\r\non 30.11.1993, the lessees will have to deliver vacant and peaceful\r\npossession of the said property in the same position as it was at the time\r\nof execution of lease to the lessor, by removing the construction thereon.\r\nAdmittedly, the lessees raised some structure over the subject property.\r\nThe nature of this structure, and its use, have also formed a part of&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contentions in this appeal. Hence, we shall elaborate on the same at the\r\nappropriate juncture.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.6. After the Act of 2001 came into force, the said M/s. Kumar\r\nIndustries represented by its partners filed an application before the\r\nlearned Controller on or about 10.04.2003, being Return No. 67/234, for a\r\ndeclaration that they were thika tenants of the subject property and claimed\r\nthat they had deposited rent with interest with the Controller for the period\r\nfrom 18.01.1982 till 2007. The proceedings on this application filed by the\r\nlessees have ultimately led to the present appeal.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22.1 A long length of arguments has been advanced before us by the\r\ncontesting parties, particularly in view of the peculiarities associated with\r\nthe three enactments and their amendments from time to time. Having\r\nregard to the subject matter, it appears appropriate only to deal with the\r\nmaterial propositions and factors while analysing the submissions. This\r\nanalysis could be broadly sub-divided into four parts namely, the nature of\r\nthe structure in question; the statutory scheme and import of three\r\nenactments with their amendments; the relevant decisions; and other\r\nmiscellaneous but relevant factors.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Structure in question\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23.1. The fact that the structure in question was pucca in nature could not\r\nhave been put to any issue by the appellants. As noticed, the learned\r\nController, in paragraph 3 of his findings in the order dated 01.08.2012,\r\ncategorically recorded the facts that even from the assessment register of\r\nthe Corporation, it was clearly shown that at all material times, there were\r\nplaced such structures at the subject property which fell within the meaning\r\nof “pucca structures”. The Controller also found with reference to the\r\nenquiry report that there were structures having pucca foundation, pucca\r\nfloors and pucca walls as also brick walls with tin shed. The Tribunal, in its\r\nfindings, made rather strange observations that the structure in question\r\nwas a “semi-pucca” one and for that purpose, referred only to tin shed and\r\nnot the other structures as noticed and mentioned by the Controller. In fact,\r\nthe Tribunal diverted its attention more to its proposition that after the\r\nAmendment Act of 1993, all types of structures were included within the\r\nmeaning of “any structure”. In any case, the Tribunal also could not return\r\na specific finding that it had been a kutcha structure. The classification of\r\nsemi-pucca, as attempted to be carved out by the Tribunal, was neither&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">envisaged by the statute nor could have been countenanced in view of the\r\nspecific facts noticed by the Controller.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23.2. The High Court has, obviously, taken into comprehension the\r\nfindings of the Controller which were never challenged by the appellants\r\nand hence, made the observations that the lessees had admittedly raised\r\npucca structure. Even if the appellants seek to dispute such findings, such\r\na dispute is required to be rejected, particularly with reference to\r\nindisputable findings of the Controller. The structure in question had been\r\na pucca structure. Its implication shall unfold hereafter.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The statutory scheme and the import of three enactment with their\r\namendments</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. A quick but comprehensive recap of the entire environment\r\nsurrounding the enactments in question would make it clear that by the Act\r\nof 1949, essentially the thika tenancies were sought to be regulated, more\r\nparticularly against arbitrary eviction and enhancement of rent. Therein, by\r\nthe Amendment Act No. XXIX of 1969, the thika tenant was given the right\r\nto erect pucca structure in case the land comprised in the holding was\r\nbeing used for residential purposes, of course, with previous permission of\r\nthe Controller. Bharatias, being essentially the persons paying rent in\r\nrespect of the structure erected by the thika tenant, were also given\r\nprotection so that thika tenant would not eject them for erecting a pucca\r\nstructure. The legislature duly took note of the requirements of giving\r\nprotection to thika tenants and bharatias against ejectment and thus, the\r\nCalcutta Thika Tenancy Stay of Proceedings (Temporary Provisions) Act&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1978, was enacted, whose life was extended upto 18.07.1981. As specified\r\nin the Statement of Objects and Reasons for the Act of 1981, the object of\r\nthe said Act of 1978 was to provide temporary protection against ejectment\r\nuntil a comprehensive legislation was enacted to deal with the public\r\ngrievances.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. Then, in the Act of 1981, the State Legislature introduced the\r\nprovisions for acquisition of the rights of landlords in the land comprised in\r\nthika tenancies by payment of certain amount on the lines of the then\r\noperating Urban Land Ceiling (Ceiling and Regulation) Act, 1976. This\r\nacquisition was to result in vesting of all the rights in the land comprised in\r\nthika tenancies in the State free from all encumbrances; and the thika\r\ntenants were to hold the land under the State on prescribed terms and\r\nconditions. Protection against ejectment was also granted to bharatias.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25.3. We are essentially concerned with the sub-paragraph (b) aforesaid\r\nas regards the construction of Section 5 of the Act of 1981. Interestingly,\r\nwhile the said decision in Lakshmimoni Das (supra) was challenged in\r\nthis Court but, even during the pendency of such challenge, the legislature\r\nmade amendments to the Act of 1981 by virtue of the Amendment Act of\r\n1993 which was intended to remove the practical difficulties in operation of\r\nthe Act of 1981. By this Amendment, even the Title and the Preamble of\r\nthe Act of 1981 as originally enacted were amended. In fact, such\r\namendment of title etc. had its foundation in the observations occurring in\r\nLakshmimoni Das (supra) wherein the Full Bench of the High Court, inter\r\nalia, took into consideration the original title of the enactment, i.e., the\r\nCalcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 while\r\nconstruing its provisions where the expression “other land” was not there.&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25.4. However, it could be readily seen that the amendment of Section 5\r\nby the Amendment Act of 1993, rather than removing the difficulties and\r\nclarifying the position of law as also rather than removing the basis of the\r\ndecision in Lakshmimoni Das (supra), only created more complexities and\r\nunworkable situation where the effect of newly inserted clause (c) of\r\nSection 5 was going to be as if any land given on lease in any manner was\r\nto result in vesting of the interest of the landlord in the State. If we could\r\nsay so, the shortcomings in the originally enacted Section 5 of the Act of\r\n1981, which were indicated in Lakshmimoni Das (supra) by the Full Bench\r\nof the Calcutta High Court, rather than being removed, became more\r\nprominent with complexities because of the Amendment Act of 1993.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. The object and purpose of these enactments and text of the\r\nrelevant provisions, when examined with reference to their texture and\r\ncontext, the provisions of vesting as evolved by way of originally enacted\r\nSection 5 of the Act of 1981 and as provided for in Section 4 of the Act of\r\n2001 read with the Amendment Act of 2010 put it beyond the pale of doubt\r\nthat until the advent of the Amendment Act of 2010 w.e.f. 01.11.2010,\r\nerection of pucca structure on the leased land did not bring the tenant within&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the definition of thika tenant and thus, there could not have been any\r\nvesting in the State under Section 5 of the Act of 1981 (whether originally\r\nenacted or amended) or under Section 4 of the Act of 2001, as originally\r\nenacted.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">27. We may also observe that ordinarily, a later enactment may not be a\r\nsafe external aid for interpreting the preceding enactment on the same\r\nsubject but the object and purport of the enactments dealing with thika\r\ntenancies commencing from the year 1949 and continuing with successive\r\nenactments of 1981, its amendment in 1993, then the enactment of 2001 and\r\nits amendment in the year 2010, formed a series of legislative exercises\r\ntowards the same subject, i.e., protection of thika tenants. Hence, the later\r\npromulgation of the Act of 2001 and its amendments could have been\r\nreferred to, and have rightly been referred to, by the High Court in the\r\nimpugned judgment while construing the Act of 1981</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27.1. There are other strong reasons for which too, the successor\r\nenactment is required to be taken in aid for construing the provisions of the\r\npreceding enactment in the present case. It is a fact that even when the Act\r\nof 2001 came into force from 01.03.2003, the vesting of the land comprised\r\nin thika tenancies and other land etc. was deemed to have occurred w.e.f.\r\n18.01.1982; that being the very date of enforcement of the Act of 1981.\r\nLearned counsel for the respondent No. 1 appears right in his submissions\r\nthat the Act of 1981 having been simultaneously enacted while repealing the\r\nAct of 1949, it had to be read in conjunction with the preceding enactment&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and the legislature would be deemed to be aware of the judicial\r\npronouncements as regards the material terms of the Act of 1949 which were,\r\nwith same frame and phraseology, retained in the new enactment. The\r\ndecisions referred to by the learned counsel for the respondent No. 1 in the\r\ncases of Bengal Immunity Co. Ltd. and Gammon India Ltd. (supra)\r\nprovide enough guide on the principle that repeal and simultaneous reenactment is to be considered as reaffirmation of the old law. The submission\r\non behalf of the appellants and the State, that the interpretations put to the\r\nexpression “any structure”, as occurring in relation to the Act of 1949, cannot\r\nbe imported for the purpose of the interpretation of the same expression in\r\nsimilar enactment with similar phraseology, which was made in replacement\r\nof the earlier one, is required to be rejected. The exclusion aspects of the Act\r\nof 1949 had, of course, not been continued in the Act of 1981 but the basic\r\nelements for a tenancy to become thika tenancy remained the same namely,\r\nrequirement of payment of rent and construction/acquisition of any structure\r\nthereat by the tenant. There is nothing in the Act of 1981 for which the\r\ninterpretation of the expression “any structure” could have been made\r\ndifferent than the interpretation of the same expression in regard to the Act\r\nof 1949.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28.1. In the Act of 1949 as originally enacted, even though the\r\nexpression “any structure” had been used but, it was consistently\r\nmaintained by the Calcutta High Court with reference to the object and\r\npurpose of Act of 1949 and its frame that, the definition of “thika tenant”\r\nwould not include pucca structure because the enactment was otherwise\r\nnot dealing with the rights and liabilities of the tenant, for which the\r\nprovisions of Transfer of Property Act were required to be referred to; and\r\nsuch a proposition was also in accord with Section 2(6) of the Act of 1949;\r\nand per Section 108(p) of the Transfer of Property Act, a pucca structure\r\nwas not permissible. In Jatadhari Daw &amp; Grandsons (supra), the Division\r\nBench of the High Court, even while construing the Act of 1981, proceeded\r\non the same lines and held that the expression “structure” in the statute did\r\nnot include permanent structure<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28.4. Of course, by amendment of Section 5 by the Amendment Act of\r\n1993, it was introduced that even “other land” under lease could be\r\nacquired but, the purpose and object of the enactment did not provide for\r\nsuch a broad and all-pervading legislative fiat. This aspect of the matter\r\ndoes not require any further elaboration in the present case for the\r\nfundamental reason that claim of the appellants had only been of thika\r\ntenancy and when they do not answer to the description of thika tenant,\r\nthere would arise no question of operation of Section 5 of the Act of 1981,\r\nwhether in its unamended form or in its amended form.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28.5. Significant it is to notice that even in the Act of 2001, as originally\r\nenacted, the definition of thika tenancy in clause (14) of Section 2 thereof\r\nretained more or less the same expressions as were there in the Act of 1981;\r\nand the expression “any structure including pucca structure” came to be\r\ninserted to this clause only by the Amendment Act of 2010. Moreover, the\r\nAmendment Act of 2010 was given only prospective effect from 01.11.2010\r\nand not the retrospective effect, as was earlier given to the original Section 4\r\nof the Act of 2001. Thus, acquisition of the land comprising thika tenancy with\r\neven erection or acquisition of pucca structure by the thika tenant came to be\r\nprovided for in specific terms by the legislature only from 01.11.2010 and not\r\nbefore. As noticed, before 01.11.2010, so far as the lease in question was&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">concerned, the same had ceased to subsist and there was no existing lease\r\nwhich could have taken the appellants within the frame of thika tenancy on\r\n01.11.2010.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The relevant decisions of Calcutta High Court</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29.1. In the passing, we may also observe that the suggestions made on\r\nbehalf of the appellants and the State that the decision of Jatadhari Daw &amp;\r\nGrandsons (supra) has been set aside by this Court by its order dated\r\n27.10.2004 is not correct as such. By the said order dated 27.10.2004, the\r\nmatters were remitted to the High Court, particularly in view of subsequent\r\nlegislations in the form of Amendment Act of 1993 as also the Act of 2001,\r\nwithout this Court having pronounced on the question of law either way.\r\nSimilarly, the decision in Lakshmimoni Das (supra) has also not been\r\nexamined on its ratio and merits by this Court earlier.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30. Apart that we have no hesitation in giving our imprimatur to the\r\nenunciation aforesaid, we are also at one with the observations of the High\r\nCourt in the impugned order that even after amendment of the Act of 1981\r\nby the Amendment Act of 1993, vesting indiscriminately of every parcel of let\r\nout land, in the broad expression “other land”, could not have been bought\r\nabout and hence, ultimately this enactment, as such, was given up and was\r\nsubstituted by the Act of 2001.&nbsp;<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Other miscellaneous but relevant factors</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. Apart from the aforesaid view taken by us, so far as the present\r\nmatter is concerned, a fundamental reason operates against the\r\napplicability of the Act of 1981. As noticed, after coming into force of the\r\nAct of 1981, the same was indeed challenged by the landlord in the High\r\nCourt and indisputably, operation of the enactment qua the subject\r\nproperty was stayed by the High Court. The correctness or otherwise of the\r\norder so passed by the High Court is not a matter of question before us.\r\nThe fact of the matter remains that the said Act was under total eclipse qua\r\nthe subject property pursuant to the binding order of the High Court.\r\nTherefore, any suggestion about the operation of the said enactment and\r\nthereby vesting of the subject property in the State pursuant to Section 5\r\nof the Act of 1981 is rather redundant.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. Then, the lease in question came to an end on 30.11.1993.\r\nThereafter, the appellants ceased to be persons liable to pay rent at\r\nmonthly or in any other periodical rate. In that position, they ceased to\r\nanswer to the definition of thika tenant within the meaning of Section 3(8)\r\nof the Act of 1981. Similarly, they did not answer to the description of thika\r\ntenant within the meaning of Section 2(14) of the Act of 2001. As a\r\nnecessary corollary, neither Section 5 of the Act of 1981 applied to the\r\ntenancy in question nor Section 4 of the Act of 2001. The application made\r\nbefore the Controller in the month of April, 2003 for accepting the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appellants and/or their predecessors as thika tenants was, therefore,\r\nfundamentally misconceived and could have only been rejected.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>33. It is also significant to notice that the Controller, in his detailed order\r\ndated 01.08.2012, even after examining all the facts of the case and also\r\nthe provisions of law applicable, repeatedly held that the appellants could\r\nnot have been treated as thika tenants under the Act of 1949 or under the\r\nAct of 1981. It was only in the last part of the impugned order dated\r\n01.08.2012, the learned Controller abruptly picked up the decision in\r\nPurushottam Das Murarka (supra) and held on that basis that since\r\nconstruction of pucca structure was not prohibited, therefore, the applicants\r\ncould be taken as thika tenants. Such a proposition was not compatible\r\nwith the findings in the earlier part of the same order and with the statute\r\nas also with the purport and effect of the decision in Purushottam Das\r\nMurarka.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">33.1. In the case of Purushottam Das Murarka (supra), the two major\r\nquestions had been about the period of lease with reference to the initial\r\nperiod of five years and renewal of seven years; and about the effect of\r\nthika tenant constructing or attempting to construct pucca structure on the\r\ndemised land. The period of tenancy is not relevant for the present\r\npurpose. As regards the aspect relating to the structure, the Court noticed\r\nthe decisions in Monmatha Nath Mukherjee and Annapurna Seal (supra)\r\nbut then, observed that if during pendency of lease, a thika tenant\r\nconstructs or attempts to construct pucca structure on demised land&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">without permission of landlord, he does not cease to be the thika tenant.\r\nThus, the lessee being a thika tenant was an existing fact in said case. The\r\nHigh Court has rightly observed that it was never held in Purushottam Das\r\nMurarka (supra) that if tenant of a land would raise pucca structure, he\r\nwould automatically become a thika tenant. The conclusion drawn on the\r\nbasis of the said decision by the Controller could have only been\r\ndisapproved.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b>&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b>34. In the aforesaid view of the matter, we do not consider it necessary\r\nto enter into any further or finer analysis of other contentions urged and\r\ndecisions cited by the learned counsel for the respective parties. In our\r\nview, the impugned order deserves to be upheld because neither the\r\nappellants became thika tenants under the enactments aforesaid nor there\r\nhad been any vesting of the subject property thereunder.&nbsp;<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b>Conclusion</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b>2. The structure, as put up by the appellants and/or their\r\npredecessors, had been pucca structure on the property in question.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b>3. For the structure being pucca in character and the term of lease\r\nbeing 20 years, the appellants and/or their predecessors were not\r\nthika tenants within the meaning of Section 2(5) of the Act of 1949.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b>4. The appellants and/or their predecessors were not thika tenants\r\nwithin the meaning of the Act of 1981 for two major reasons:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b>\r\na. that the structure in question was a pucca structure; and</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b>b. that the Act of 1981 was not operative in relation to the property\r\nin question because of the stay order passed by the High Court.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b>5. On the date when lease expired in the month of November, 1993,\r\nthe appellants and/or their predecessors were not thika tenants and,\r\ntherefore, the Act of 2001 does not enure to their benefit.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b>6. The impugned decision of the High Court, therefore, calls for no\r\ninterference.&nbsp;<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b>36. Before closing, we may also take note of the fact that by way of\r\ninterim orders dated 15.04.2014 and 22.07.2014, the appellants were\r\ndirected to make payment towards occupancy charges. The appellants\r\nhave made certain deposits and by the order dated 27.08.2021, we had\r\ndirected the appellants to deposit further an amount of Rs. 20,00,000/-\r\n(Rupees twenty lakhs) in the Registry of this Court of which, the contesting&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respondents were held entitled to withdraw an amount of Rs. 16,50,000/-\r\n(Rupees sixteen lakhs fifty thousand) by way of the occupancy charges;\r\nand the remaining amount was ordered to be invested in a fixed deposit\r\nwith periodical renewal, to be disbursed subject to the outcome of this\r\nappeal. The said deposited amount together with accrued interest is\r\nordered to be disbursed to the respondent No. 1 while we otherwise leave\r\nit open for the said respondent in taking recourse to appropriate remedies,\r\nstrictly in accordance with law, in relation to any other claim/relief.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">37. Accordingly and in view of the above, this appeal fails and is,\r\ntherefore, dismissed subject to the observations foregoing. All pending\r\napplications also stand disposed of. No order as to costs.</span><span style=\"font-size: 12pt; font-family: var(--bs-font-sans-serif);\">&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '846b899696d7542e7f840a93bc3c3400.jpg', '55fa3bb12f9c805964e8e62d48499d43.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-29', 1, '', '', '2022-07-29 18:06:58', '2022-07-29 10:27:28'),
(2013, 'WN1Hhit1xKGKAfgESsIuA3SP6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SC/ST(Prevention of Atrocities) Act,1989. Victim need not be physically present when he accesses the offensive content already uploaded to the internet. The victim of the abuse can be deemed to be present each time he accesses it online.Kerala High Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sooraj V. Sukumar Vs State of Kerala and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bail Application 4966 of 2022 decided on 26 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Bechu Kurian Thomas.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Be that as it may, petitioner is facing an indictment for\r\noffences punishable under sections 354A(1)(iv), 509, 294(b) of the\r\nIndian Penal Code, 1860, sections 66E and 67A of the Information\r\nTechnology Act 2000, apart from sections 3(1)(r), 3(1)(s) and\r\n3(1)(w)(ii) of the Act in Crime No.744 of 2022 of the Ernakulam Town\r\nSouth Police Station. He has invoked the jurisdiction of this Court for\r\nobtaining pre-arrest bail.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Petitioner is the Managing Director of an online news channel\r\ncalled “True T.V.”, which is professed to have a viewership of more\r\nthan five lakhs. The present crime has a background; without\r\nnarrating which, the sequence will not be complete.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The victim had filed a complaint against her employer -\r\nanother media person, alleging that he was compelling her to\r\nvideograph her nudity to create a morphed video of a lady minister of\r\nthe State. The employer of the victim was arrested after registering a\r\ncrime. Provoked by the arrest of a friend and fellow media person,\r\npetitioner telecasted an interview through his online channel. The\r\ncontent shows the petitioner interviewing the husband and father-inlaw of the victim. The interview which was aired through petitioner\'s\r\nonline media was uploaded on YouTube and circulated through\r\nFacebook as well. Alleging that the interview shown by the petitioner\r\nis spewing insult, hatred and ill-will against the members of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Scheduled Tribe community, apart from abusing and ridiculing the\r\nvictim, crime No.744 of 2022 was registered. The said crime has\r\ncreated an apprehension of arrest in the petitioner\'s mind, and thus\r\nthis application for pre-arrest bail.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. There are three ingredients that are required to be satisfied\r\nto make out an offence under section 3(1)(r) and section 3(1)(s) of\r\nthe Act. They are:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(i) The accused must not be a member of the scheduled\r\ncaste or scheduled tribe.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) The insult or intimidation or abuse must be made with\r\nintent to humiliate a member of the particular\r\ncommunity, and</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iii) The act must have been committed within public view.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. The written text of the interview, which was published\r\nthrough YouTube, Facebook and other social media, was made\r\navailable to the court as Annexure R3(b) and Annexure R3(d).\r\nSimilarly, the compact disc containing the interview, as downloaded\r\nfrom YouTube, was produced as Annexure R3(c) and Annexure R3(e).\r\nPetitioner is admittedly not a member of the Scheduled Caste or\r\nScheduled Tribe. On a perusal of the statements and observations\r\nmade in the interview, it is noticed that \'words\' of a demeaning nature\r\nhave been used by the petitioner at several stages of the interview.\r\nHe has also referred to the petitioner as an ‘ST’ on more than one\r\noccasion, indicative of knowledge that the victim is a member of the\r\nScheduled Tribe. Thus, the words used by the petitioner in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">interview are prima facie insulting, humiliating and abusive, made with\r\nthe knowledge that the victim belongs to a Scheduled Tribe\r\ncommunity. The interview uploaded by the petitioner is an affront to\r\nwomen and the victim in particular. Therefore, the content of the\r\nuploaded interview satisfies the first two ingredients mentioned above.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. As mentioned earlier, the contention of Adv. Babu S.Nair is\r\nthat the victim was not present when the alleged interview was taken,\r\nand hence the offences under sections 3(1)(r), 3(1)(s) and both subclauses of section 3(1)(w) of the Act can have no application in view of\r\nthe decision in E.Krishnan Nayanar v. Dr. M.A.Kuttappan,\r\nMember, Kerala Legislative Assembly and Others (1997 CRL L.J.\r\n2036). The contention was, no doubt, impressive at first blush. If the\r\ncontention of the petitioner is accepted, then, despite the interview\r\nbeing laced with disgraceful or degrading words against the victim,\r\nstill, an offence under the Act will not be made out since the third\r\ningredient mentioned above is not satisfied.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. In the judgment in E.Krishnan Nayanar’s case, a learned\r\nsingle Judge of this Court opined that the words within ‘public view’ in\r\nsection 3(1)(x) of the Act (prior to amendment) are referable only to\r\nthe person insulted and not to the person who insulted him and that\r\nat the time of the alleged insult, the person insulted must be present\r\n(emphasis supplied).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. If the interpretation in E.Krishnan Nayanar’s case is\r\napplicable to the instant case, would an offence under the Act be\r\nmade out? The answer to this question would decide the question of\r\nthe maintainability of this bail application.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. The Supreme Court had noticed in Prathvi Raj Chauhan’s\r\ncase (supra) that even after the commencement of the Act, instances\r\nof socially reprehensible practices against members of the Scheduled\r\nCaste and Scheduled Tribe communities are increasing. In such\r\ncircumstances, adopting an interpretation which defeats the intent and\r\npurpose of the Act must be avoided. The Act was enacted to curb the\r\nmenace of crimes, including insults and humiliation targeted against\r\nScheduled Caste and Scheduled Tribe communities. A remedial statute\r\nof this nature must be able to adapt to the circumstances. For that\r\npurpose, the statute must be read as “always speaking” and with life.\r\nThe statute can achieve its objective only if it applies even in the\r\ntechnologically advanced social milieu.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. The digital presence of persons through the internet has <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">brought a change to the concept, purport and meaning of the word\r\n\'public view\' in sections 3(1)(r) and 3(1)(s). When the victim accesses\r\nthe content already uploaded to the internet, she becomes directly\r\nand constructively present for the purpose of applying the penal\r\nprovisions of the Act. Thus, when insulting or abusive content is\r\nuploaded to the internet, the victim of the abuse or insult can be\r\ndeemed to be present each time she accesses it. The third ingredient\r\nof sections 3(1)(r) and 3(1)(s) of the Act is also thus satisfied.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. Section 3(1)(w)(ii) of the Act is also alleged against the\r\npetitioner. The said provision contemplates words, acts or gestures of\r\na sexual nature towards a woman belonging to a Scheduled Caste or a\r\nScheduled Tribe. Though arguments were advanced on the\r\ninapplicability of section 3(1)(w)(ii) of the Act, I do not propose to\r\nconsider the said question in view of my finding in the preceding\r\nparagraphs on the applicability of sections 3(1)(r) and 3(1)(s).\r\nTherefore the question whether an offence under section 3(1)(w)(ii) of\r\nthe Act is prima facie made out or not is therefore left open.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 31. In the light of the above circumstances, I am of the view\r\nthat though bailable offences alone are alleged against the petitioner\r\nunder the Indian Penal Code, 1860 and non-bailable offence under the\r\nInformation Technology Act, 2000, since the offences alleged under\r\nsection 3(1)(r) and section 3(1)(s) of the Scheduled Castes and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Scheduled Tribes (Prevention of Atrocities) Act, 1989 cannot be said to\r\nbe not made out, this application for anticipatory bail is not\r\nmaintainable.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This bail application is therefore dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b53cb6c21cde6c813990711aaa2bd830.jpg', 'e5fef66e82cd19f90589ee4591caf591.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-30', 1, '', '', '2022-07-29 16:34:06', '2022-07-30 10:28:12');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2014, 'mauuVxGRtOgk7EMWTUvVNM73f', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SARFAESI Act. Taking possession of secured asset under Section 14 does not involve an adjudicatory process. District Magistrate and the Chief Metropolitan Magistrate not a persona designate. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">R.D. Jain and Co Vs Capital First Ltd and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 175 of 2022 decided on 27 July 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice M.R. Shah and Justice B.V. Nagarathna.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 22.12.2017 passed by the High Court of Judicature at Bombay in Writ Petition No. 1961/2017, by which, the Division Bench of the High Court while interpreting Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement Security Interest Act, 2002 (hereinafter referred to as the “SARFAESI Act”) has held that</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(i) the District Magistrate, Chief Metropolitan Magistrate is not a persona designata for the purposes of Section 14 of the SARFAESI Act;</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(ii) the expression “District Magistrate” and the “Chief Metropolitan Magistrate” as appearing in Section 14 of the SARFAESI Act shall deem to mean and include Additional District Magistrate and Additional Chief Metropolitan Magistrate for the purposes of Section 14 of the SARFAESI Act, the borrower has preferred the present appeal. </span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">2. The facts leading to the present appeal in a nutshell are as under: ­</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">2.1. That respondent No. 1 herein – Financial Institution – Capital First Limited is the secured creditor (hereinafter referred to as the “secured creditor”) within the meaning of Section 2(1)(zd) of the SARFAESI Act. That the secured creditor instituted proceedings under the SARFAESI Act for recovery of the amount due and payable by the appellant herein – borrower. The said proceedings initiated under Section 13(4) of the SARFAESI Act, the secured creditor proceeded to take possession of the secured asset. However, the borrowers refused to handover the physical possession of the secured asset. The secured creditor took symbolic possession of the secured asset on 21.01.2017 and affixed the possession notice at the said secured asset. That on 17.03.2017, the secured creditor filed an application under Section 14 of the SARFAESI Act with the learned Chief Metropolitan Magistrate Court, Esplanade, Mumbai, interalia, praying for assistance from the learned Chief Metropolitan Magistrate in taking physical possession of the secured asset. The matter was adjourned from time to time and lastly, it was adjourned to 29.07.2017. As mandated by second proviso to sub­section (1) of Section 14 of the SARFAESI Act, the application was required to be disposed of within a period of 30 days and as the application was not decided within the period mandated by the statute, the secured creditor moved an application for advancement. The said application came to be dismissed by the learned Chief Metropolitan Magistrate, inter­alia, on the ground that the said application is a fresh application and many old applications are pending. Therefore, the secured creditor approached the High Court by way of the present writ petition for an appropriate direction and order directing the learned Chief Metropolitan Magistrate to dispose of their cases/applications under Section 14 of the SARFAESI Act in a time bound manner.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">7... Thus, the underlying purpose of the SARFAESI Act is to empower the financial institutions in India to have similar powers as enjoyed by their counterparts, namely, international banks in other countries. One such feature is to empower the financial institutions to take possession of securities and sell them. The same has been translated into provisions falling under Chapter III of the SARFAESI Act. Section 13 deals with enforcement of security interest. SubSection (4) thereof envisages that in the event a default is committed by the borrower in discharging his liability in full within the period specified in sub­section (2), the secured creditor may take recourse to one or more of the measures provided in sub­section (4). One of the measures is to take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset. That, they could do through their “authorised officer” as defined in Rule 2(a) of the Security Interest (Enforcement) Rules, 2002.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">7.1 After taking over possession of the secured assets, further steps to lease, assign or sale the same could also be taken by the secured creditor. However, Section 14 of the SARFAESI Act predicates that if the secured creditor intends to take possession of the secured assets, must approach the CMM/DM by way of an application in writing, and on receipt of such request, the CMM/DM must move into action in right earnest. After passing an order thereon, he/she (CMM/DM) must proceed to take possession of the secured assets and documents relating thereto for being forwarded to the secured creditor in terms of Section 14(1) read with Section 14(2) of the SARFAESI Act. As noted earlier, Section 14(2) is an enabling provision and permits the CMM/DM to take such steps and use force, as may, in his opinion, be necessary.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">7.2 At this stage, it is required to be noted that along with insertion of sub­section (1A), a proviso has also been inserted in sub­section (1) of Section 14 of the SARFAESI Act whereby the secured creditor is now required to comply certain conditions and to disclose that by way of an application accompanied by affidavit duly affirmed by its authorised officer in that regard. Sub­Section (1A) is in the nature of an explanatory provision and it merely restates the implicit power of the CMM/DM in taking services of any officer subordinate to him. As observed and held by this Court in the case of NKGSB Cooperative Bank Ltd supra), the insertion of sub­section (1A) is not to invest a new power for the first time in the CMM/DM as such. </span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">8. Thus, considering the scheme of the SARFAESI Act, it is explicit and crystal clear that possession of the secured assets can be taken by the secured creditor before confirmation of sale of the secured assets as well as postconfirmation of sale. For taking possession of the secured assets, it could be done by the “authorised officer” of the Bank as noted in Rule 8 of the Security Interest (Enforcement) Rules, 2002. </span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">8.1 However, for taking physical possession of the secured assets in terms of Section 14(1) of the SARFAESI Act, the secured creditor is obliged to approach the CMM/DM by way of a written application requesting for taking possession of the secured assets and documents relating thereto and for being forwarded to it (secured creditor) for further action. The statutory obligation enjoined upon the CMM/DM is to immediately move into action after receipt of a written application under Section 14(1) of the SARFAESI Act from the secured creditor for that purpose. As soon as such an application is received, the CMM/DM is expected to pass an order after verification of compliance of all formalities by the secured creditor referred to in the proviso in Section 14(1) of the SARFAESI Act and after being satisfied in that regard, to take possession of the secured assets and documents relating thereto and to forward the same to the secured creditor at the earliest opportunity. As mandated by Section 14 of the SARFAESI Act, the CMM/DM has to act within the stipulated time limit and pass a suitable order for the purpose of taking possession of the secured assets within a period of 30 days from the date of application which can be extended for such further period but not exceeding in the aggregate, sixty days. Thus, the powers exercised by the CMM/DM is a ministerial act. He cannot brook delay. Time is of the essence. This is the spirit of the special enactment. As observed and held by this Court in the case of NKGSB Cooperative Bank Ltd. (supra), the step taken by the CMM/DM while taking possession of the secured assets and documents relating thereto is a ministerial step. It could be taken by the CMM/DM himself/herself or through any officer subordinate to him/her, including the advocate commissioner who is considered as an officer of his/her </font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">court. Section 14 does not oblige the CMM/DM to go personally and take possession of the secured assets and documents relating thereto. Thus, we reiterate that the step to be taken by the CMM/DM under Section 14 of the SARFAESI Act, is a ministerial step. While disposing of the application under Section 14 of the SARFAESI Act, no element of quasi­judicial function or application of mind would require. The Magistrate has to adjudicate and decide the correctness of the information given in the application and nothing more. Therefore, Section 14 does not involve an adjudicatory process qua points raised by the borrower against the secured creditor taking possession of secured assets. </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">9. Thus, in view of the scheme of the SARFAESI Act, more particularly, Section 14 of the SARFAESI Act and the nature of the powers to be exercised by learned Chief Metropolitan Magistrate/learned District Magistrate, the High Court in the impugned judgment and order has rightly observed and held that the power vested in the learned Chief Metropolitan Magistrate/learned District Magistrate is not by way of persona designata. </span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">10.2 In view of the above discussion and as observed hereinabove when the powers to be exercised by the Additional Chief Metropolitan Magistrate are at par with the powers to be exercised by the Chief Metropolitan Magistrate [Section 17(2) of Cr.PC] and the Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate shall be subordinate to the Sessions Judge (Section 19 of the Cr.PC) and the steps to be taken by the Chief Metropolitan Magistrate under Section 14 of the SARFAESI Act as observed hereinabove are ministerial in nature and does not involve any adjudicatory process and there is no element of any quasi­judicial function, we see no reason to take a different view than the view taken by the Bombay High Court in the impugned judgment. We hold that the expression “Chief Metropolitan Magistrate” as appearing in Section 14 of the SARFAESI Act shall deem to mean and include Additional Chief Metropolitan Magistrate for the purposes of Section 14 of the SARFAESI Act. </span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">10.3 Similarly, when the Additional District Magistrates are conferred with the powers to be exercised by the District Magistrates either by delegation and/or by special orders and the Additional District Magistrates are exercising the same powers which are being exercised by the District Magistrates, the same analogy can be applied, more particularly, when the powers exercisable under Section 14 of the SARFAESI Act, are ministerial steps. </span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">11. The issue/question may also be considered from another angle. It cannot be disputed and even judicial notice can be taken of the fact that the CMMs and/or even the DMs are required to perform so many other duties under different statutes. They have to perform many administrative duties also. District Magisters are in overall administrative control of their jurisdiction/district. Similarly, CMMs are also required to perform administrative duties and they have also to deal with the other cases/criminal trials and many trials under special statutes also. It cannot be disputed that the litigations under the SARFAESI Act and proceedings and/or applications under Section 14 of the SARFAESI Act are increasing. Even as noticed by the High Court in the impugned judgment and order, as on 09.08.2017, 926 cases were pending under Section 14 of the SARFAESI Act before only one CMM. Therefore, a number of applications under Section 14 are pending. It also cannot be disputed that the SARFAESI Act provides for expeditious disposal of the applications filed under Section 14 of the SARFAESI Act. As per, second proviso to Section 14, suitable orders for the purpose of taking possession of the secured assets are required to be passed within a maximum period of sixty days from the date of the application. Therefore, if the submission on behalf of the appellants that only the concerned CMM/DM alone would have jurisdiction to decide the applications under Section 14 of the SARFAESI Act is accepted, in that case, it will be practically impossible for the concerned CMM/DM to decide the application under Section 14 of the SARFAESI Act expeditiously and within the time stipulated under second proviso to Section 14 of the SARFAESI Act. If the interpretation which we propose that, the District Magistrate/Chief Metropolitan Magistrate under Section 14 of the SARFAESI Act includes the Additional District Magistrate/Additional Chief Metropolitan Magistrate, the same can be said to be a purposive interpretation to achieve the object and purpose of proceedings under the SARFAESI Act, more particularly when as observed hereinabove, the orders to be passed under Section 14 of the SARFAESI Act are ministerial steps and to assist the secured creditor in getting/obtaining the possession of the secured property. Thus, there is no element of exercise of adjudicatory powers under Section 14 of the SARFAESI Act. All these aspects have been considered in detail by the High Court in the impugned judgment and order. </span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">12. We are in complete agreement with the view taken by the High Court that (i) the District Magistrate, Chief Metropolitan Magistrate is not a persona designata for the purposes of Section 14 of the SARFAESI Act; (ii) the expression “District Magistrate” and the “Chief Metropolitan Magistrate” as appearing in Section 14 of the SARFAESI Act shall deem to mean and include Additional District Magistrate and Additional Chief Metropolitan Magistrate for the purposes of Section 14 of the SARFAESI Act. </span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">13. The contrary view taken by the other High Courts, namely, Gujarat High Court in the case of Pushpa Devi B Jain W/o Bhawarlal M Jain Vs. Indian Overseas Bank in Special Civil Application No. 19102/2015; Calcutta High Court in the case of Shri Chellaperumal & Anr. Vs. The Authorised Officer & Ors. in M.A. No. 26/2014 and Kerala High Court in the case of Aseena Vs. Sub­Divisional Magistrate and </font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Ors. in W.P. (C) No. 3331/2007, is not a good law and are specifically overruled. </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">14. In view of the above and for the reasons stated above, the present appeal fails and the same deserves to be dismissed and is accordingly dismissed. We hold that the powers under Section 14 of the SARFAESI Act can be exercised by the concerned Additional Chief Metropolitan Magistrates of the area having jurisdiction and also by the Additional District Magistrates, who otherwise are exercising the powers at par with the concerned District Magistrates either by delegation and/or special order. The present appeal is accordingly dismissed. No costs. </span></font></p>', 'dae2e58105c8c0dd6e9274e45b5357ce.jpeg', '93665b74ad907580744ff80a14003b9a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-30', 1, '', '', '2022-07-29 17:49:40', '2022-07-30 06:36:32');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2025, 'oF7iSmagQ0G5shP1WhT6axTit', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Lapse of Scheme under the Bangalore Development Authority Act would invalidate designation of property as a civic amenity and all further actions taken in connection thereto. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">Ravindra. T and\r\nothers Vs The State of Karnataka and others.</span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">Writ Petition\r\n55159 of 2014 decided on 19 July 2022.</span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">Justice Suraj\r\nGovindaraj.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">2. The\r\npetitioners claim to be the owners of Sy.No.80/1 measuring 2 acres 4 guntas\r\nsituated at Hulimavu Village, Bannerghatta Road, Bangalore South Taluk,\r\nBangalore.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">3. The\r\npetitioners contend that the said land was one among various lands acquired for\r\nthe formation of Byrasandra, Tavarekere and Madivala Layout (BTM Layout) under\r\nthe Preliminary Notification dated 08.09.1987 and Final Notification dated\r\n28.07.1990. The petitioners are before this Court seeking for the aforesaid\r\nreliefs on the ground that the Scheme for which the lands have been acquired\r\nhas lapsed and therefore, the aforesaid reliefs are required to be granted.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">4. It is stated\r\nthat the Preliminary Notification was issued to an extent of 805 acres 21\r\nguntas of land consisting  of  524  acres  9 \r\nguntas  from  Hulimavu Village and 231 acres 21 guntas from\r\nArekere Village. Whereas the Final Notification was issued for 388 acres 9\r\nguntas from Hulimavu Village and 174 acres 25 guntas from Arekere Village.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">5. The\r\npetitioners’ forefathers had filed W.P.No.19277/1990 challenging the\r\nacquisition which came to be disposed on 19.09.1996 reserving liberty to\r\napproach Bangalore Development Authority (BDA) by submitting a suitable\r\nrepresentation. In the event of any constructions having been made in the land\r\nbelonging to them, which was acquired, the BDA was directed to consider the\r\napplication for allotment of the area in favour of the petitioners on the basis\r\nof price fixed in respect of other similar sites or lands.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">6. The BDA was\r\ndirected not to take steps to demolish the existing buildings till it considers\r\nand disposes of the representations of the land owners. Though such\r\nrepresentation was made, it was not considered.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">7. The BDA\r\ninitiated proceedings under Section 33(2) of Bangalore Development Authority\r\nAct (for short, ‘BDA Act’) and an order was passed by the Executive Engineer of\r\nthe BDA directing the demolition of construction on the land in question on the\r\nground that the construction is unauthorized which is contrary to the order\r\npassed by this Court in W.P.No.19277/1990. Hence, the petitioners filed another\r\nW.P.No.19877/2007 contending that since for more than 17 years, the petitioners\r\nhaving been in possession, occupation and enjoyment of the property, the land\r\nnot having been utilized by the BDA, the scheme for which the above land was\r\nacquired had lapsed. Further, a direction was sought to restrain the BDA and\r\nits officers from interfering with the possession of the petitioners.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">8. This Court\r\ntaking into account the Mahazar dated 06.11.1990 and also the notification\r\nissued under Section 16(2) of the Land Acquisition Act, 1984 (for short,\r\n‘L.A Act’) dated 31.05.1994 dismissed the Writ Petition vide order dated 16.08.2010 on the ground that there are no relevant materials produced by the\r\npetitioners to point out substantial lapse of the scheme.<br></span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">13. On the\r\nbasis of the submissions made, the points that would arise for determination by\r\nthis Court are:</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">1. Whether a\r\nWrit Petition earlier filed contending that the Scheme had lapsed in terms of\r\nSection 27 of the BDA Act having been dismissed, can petitioner file another\r\nWrit Petition on similar as also on additional grounds?</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">2. Whether a\r\nfinding that the Scheme is lapsed in a proceeding would be restricted to the\r\npetitioner therein or would it be a declaration in rem?</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">3. Whether\r\nlapsing of the Scheme in respect of the land of the petitioner would also\r\ninvalidate the acquisition made of the land of the petitioner?</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">4. Whether\r\nlapsing of the Scheme would invalidate the designation of the property as a\r\ncivic amenity and all further actions taken in connection thereto?</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">5. Whether in\r\nthe facts of this case, the Scheme has lapsed insofar as the land of the\r\npetitioner is concerned? 6. What order?</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">15. Answer to Point No.1: Whether a Writ\r\nPetition earlier filed contending that the Scheme had lapsed in terms of\r\nSection 27 of the BDA Act having been dismissed, can petitioner file another\r\nWrit Petition on similar as also on additional grounds?</span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"> </span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">15.2. Whether a\r\nScheme has lapsed or not, in my considered opinion, is a continuing cause of\r\naction inasmuch as if a petition is filed for declaration that the Scheme has\r\nlapsed, at the end of 10 years, which came to be dismissed and another petition\r\nis filed at the end of 15 years placing on record that there is no substantial\r\ncompliance with the Scheme, then this Court would be well within its powers\r\nto exercise jurisdiction to declare the Scheme has lapsed in terms of\r\nSection 27 of BDA Act. If however, the court were to come to a positive\r\nconclusion that the scheme has been implemented the same would constitute res\r\njudicata, since once a scheme is stated to have been substantially implemented\r\nno further proceeding could be filed stating that the scheme has not been\r\nsubstantially implemented.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">15.3. Merely\r\nbecause a Writ Petition was dismissed on an earlier occasion for lack of\r\nrelevant material, in my considered opinion cannot amount to a decision having\r\nbeen rendered on merits, there being no finding as regards whether the scheme\r\nhas been implemented or not, if implemented whether it is substantially\r\nimplemented or not and as such the same would not disentitle the petitioners to\r\nraise the same issue once again since until and unless there is a\r\nsubstantial compliance of the Scheme, the petitioners would have a continuing\r\ncause of action to agitate the issue as regards the non-compliance with the\r\nScheme. The situation is akin to a suit for injunction whenever there is any\r\nfresh cause of action to file a suit for injunction, the dismissal of an\r\nearlier suit would not come in the way of a fresh suit so long as the fresh\r\nsuit is based on a fresh cause of action<br></span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">15.4. Hence, I\r\nanswer Point No.1 by holding that the earlier Writ Petition filed in\r\nW.P.No.19877/2007 which came to be dismissed on 16.08.2010 on the ground\r\nthat there are no relevant materials placed on record would not act as a res\r\njudicata and/or bar the petitioners from filing the present Writ Petition.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">16.  Answer to Point No.2: Whether a finding\r\nthat the Scheme is lapsed in a proceeding would be restricted to the petitioner\r\ntherein or would it be a declaration in rem?</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">16.2. If there\r\nis a substantial compliance of the Scheme, then there would be no requirement\r\nto go into the facts as to whether the particular land of the petitioners has\r\nbeen utilized or not since the same would be utilized in future in terms of the\r\nScheme.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">16.3. However,\r\nif there is no substantial compliance with the Scheme, then there would be no\r\npurpose in the Court extending the time for the BDA to implement the Scheme by\r\nrefusing to exercise the powers under Section 27 of the BDA Act.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">16.4. This\r\nwould however not affect the areas where the Scheme had already been\r\nimplemented, a layout already formed and allotted to the intending allottees\r\nsince the work done by the BDA ought not to be disturbed by exercising powers\r\nunder Section 27 of the BDA Act.<br></span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">16.6. The\r\nfinding of facts unless shown that there is a change in circumstances and/or\r\nthat the BDA has implemented the Scheme more than what was stated in the\r\nearlier judgment, the finding in the said judgment as regards the\r\nimplementation of the Scheme would hold valid in any subsequent proceedings.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">16.7. Thus, in\r\nall the matters which have been cited by the learned counsel for the\r\npetitioners, this Court has specifically restricted the lapsing of the Scheme\r\nto the land of the petitioners in that particular matter and there is no\r\ndeclaration as such that the Scheme has lapsed for the entire land acquired. In\r\nview thereof, I am of the considered opinion that the petitioners cannot by\r\nrelying on those judgments contend that the Scheme as a whole has lapsed. It\r\nwould always be open for the petitioner in a particular matter to establish as\r\nregards both substantial non-compliance of the Scheme in its entirety as\r\nalso non-implementation of the Scheme in respect of the lands of the\r\npetitioners concerned.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">16.8. Hence, I\r\nanswer Point No.2 by holding that the finding that the Scheme has lapsed in a\r\nWrit Petition would be restricted to the petitioner/s to that petition and\r\nwould not amount to a declaration in rem.<br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\"><br>\r\n</span></b><b><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\">17.  Answer\r\nto Point No.3: Whether lapsing of the Scheme in respect of the land of the\r\npetitioner would also invalidate the acquisition made of the land of the\r\npetitioner?</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\">17.3. A reading of Section 27 of the BDA Act would\r\nindicate that if there is a substantial non-compliance of the Scheme for a\r\nperiod of 5 years and thereafter, a Scheme would be lapsed, and the provision\r\nof Section 36 of the BDA Act would become inoperable.<br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\">17.4. The contention urged by the learned counsel\r\nfor the petitioners is that in the present case, the Scheme would be required\r\nto be held to be lapsed and in view thereof since Section 36 of the BDA Act is\r\nmade inoperable, then the very acquisition would be negated and as such,\r\nthe acquisition notification would have to be quashed.<br>\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\">17.7. This aspect has been considered by this Court\r\nin Anthony Reddy’s case supra wherein it has been categorically held that once\r\na Scheme is held to have lapsed, there is no provision in law to enable the\r\nState or the BDA to retain the land where the Scheme is declared to have been\r\nabandoned. This Court went on to hold that once a Scheme is held to have lapsed\r\nneither BDA nor the State can propound another Scheme by holding on to the land\r\nsince the same would result in a never ending process and as such, while\r\ndeclaring the Scheme to have lapsed, quashed the acquisition as well.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\">17.8. In the above circumstances, when the\r\nacquisition proceedings are not completed, in that the possession has not\r\nbeen taken and vested in the State, I am of the considered opinion that the\r\nlapsing of the Scheme would entail the quashing of the acquisition since on a\r\ndeclaration under Section 27 of the BDA Act, Section 36 of the BDA Act is made\r\ninoperative.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\">17.9. Thus, I answer Point No.3 by holding that the\r\nlapsing of the Scheme in respect of the land of the petitioners would also\r\ninvalidate the acquisition in the event of possession not having been taken\r\nover and vested with the State. The lapsing of the Scheme in respect of the\r\nland of the petitioners would not invalidate the acquisition if possession is\r\ntaken over and vested with the State.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>18. Answer to Point No.4: Whether lapsing of\r\nthe Scheme would invalidate the designation of the property as a civic amenity\r\nand all further actions taken in connection thereto?</b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"> </span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>18.6. In the\r\npresent case, admittedly, the designation of a civic amenity has not been\r\nimplemented. Even though it is contended that the civic amenity site has been\r\nallotted to the police department, I am of the considered opinion that the\r\nrequirements under Section 3 of the Bangalore Development Authority (Allotment\r\nof Civic Amenity Sites) Rules, 1989 (for short, ‘Rules 1989’) have not been\r\nfollowed.</b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"> </span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>18.7. Though\r\nthere is no restriction to allot a civic amenity site to a governmental\r\nauthority, the requirement of Section 3 of Rules, 1989 not having been\r\nfollowed, the allotment is non-est.</b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"> </span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>18.9. In the\r\npresent case, the allotment as claimed by the respondents without even\r\ndesignation under Section 3 of Rules of 1989 is for the construction of a\r\npolice station and police quarters which as aforesaid does not meet\r\nthe legal requirements and as such, even the allotment is bad in law.</b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"> </span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>18.10. Thus,\r\nlapsing of the Scheme in my considered opinion would invalidate the designation\r\nof the property as a civic amenity and all further actions taken in connection\r\nthereto, if the Scheme is not implemented in respect of that particular land.</b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"> </span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>18.11. I answer\r\npoint no. 4 by holding that lapsing of the Scheme in respect of a particular\r\nproperty would invalidate the designation of the property as a civic amenity\r\nand all further actions taken in connection thereto.</b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"> </span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>19. Answer to\r\nPoint No.5: Whether in the facts of this case, the Scheme has lapsed insofar as\r\nthe land of the petitioner is concerned?</b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"> </span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>19.6. The only\r\nquestion that is required to be answered by this Court in the present matter is\r\nas regards whether possession of the land of the petitioners has been taken and\r\nif the same has taken possession of, has it vested with the State government\r\nand whether the Scheme has been implemented insofar as the land of the\r\npetitioners are concerned. This Court having already come to a conclusion that\r\nthere is no substantial compliance of the Scheme as such.</b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"> </span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>19.8. It is\r\nclaimed that the possession notice was issued to Chikkapapaiah. However, in\r\nterms of Annexure-W11, Chikkapapaiah had expired on 27.05.1983 and hence,\r\nthe question of Chikkapapaiah refusing the notice would not at all arise, more\r\nso, when the successors in interest of the said Chikkapapaiah viz.,\r\nSri.Thimmaiah and Sri.Ventappa had filed Writ Petitions before this Court in\r\nW.P.No.19277/1990, which have been disposed of on 19.09.1996. Hence, the\r\nquestion of issuing an award notice addressed to a dead person and claiming\r\nthat the noticee had refused to accept service of notice is a clear falsehood\r\non the part of the respondents, which now they cannot take advantage of.</b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"> </span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>19.9. In the\r\nabove background, I am of the considered opinion that there is no possession\r\nwhich has been taken by the respondent-BDA.</b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"> </span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>19.10. In the\r\nyear 2007, the engineering officer of the BDA directed for demolition of the\r\nstructure constructed on the land vide Annexure-F on 21.11.2007, which\r\ncame to be challenged by the petitioners in W.P.No.19877/2007. Thus, even as on\r\nthe year 2007, the petitioners were in possession of the property in the\r\nconstruction that they have put up by themselves.</b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"> </span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>19.11. It is\r\nonly thereafter in the year 2008, that the Director General and Inspector\r\nGeneral of Police made a request for allotment of the land which was so decided\r\nto be allotted vide resolution dated 24.04.2008 and allotment letter dated\r\n10.09.2013 issued. Subsequent thereto, a lease agreement dated 24.01.2014 was\r\nexecuted.</b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"> </span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>19.12. In the\r\nabove circumstances, the award notice and the endorsement thereon not being\r\nbelievable and being demonstrated to be false, the construction being in\r\nexistence till the year 2007 and the petitioners being in possession\r\ntill the year 2007, as per the order by the Engineering Officer of the BDA\r\ndated 21.11.2007, it is clear that the BDA has not taken possession of the land\r\nin the year 1993 as claimed and the possession continued to be with the\r\npetitioners.</b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"> </span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>19.13. Thus,\r\nthe land not having been taken possession of and vested with the State and\r\nhanded over to the BDA, I am of the considered opinion that the case of the\r\npetitioners would come under exception to Offshore Holdings’s case which has\r\nbeen detailed out in Anthony’s case requiring the Scheme having been lapsed and\r\nthe acquisition to be quashed.</b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"> </span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>19.14. Hence, I\r\nanswer point no.5 by holding that in the facts of this case, the Scheme has\r\nlapsed insofar as the land of the petitioner is concerned, possession not\r\nhaving been taken, acquisition would also have to be quashed.</b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"> </span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>20. Answer to Point No.6: What order?</b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>i.  The Writ Petition is allowed.</b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>iii. Possession of the property not having\r\nbeen taken, Section 36 of the BDA Act is declared inapplicable to the land of\r\nthe Petitioner.</b><span style=\"font-size: 12pt; font-family: \"Segoe UI\", sans-serif;\"><o:p></o:p></span></p><p>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n</p><p class=\"MsoNormal\"><span lang=\"EN-IN\"> </span></p>', 'e0e4c830e5869a0ec9dc844cf37f1887.jpg', 'c8ea9d9ef479a800b27dc1c3bb8bf19b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-01', 1, '', '', '2022-08-01 03:37:16', '2022-08-01 13:55:46');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2021, 'La9zT29a440YlyftsXvsh7n5l', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Child custody. The question ‘what is the wish/desire of the child’ is different from the question ‘what would be in the best interest of the child’. Latter issue is to be decided taking into account all the relevant circumstances.  Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rohith Thammana Gowda Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4987 of 2022 decided on 29 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A.M. Khanwilkar and Justice C.T. Ravikumar</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.  This appeal is directed against the Judgment and Order dated 07.09.2021 passed by the High Court of Karnataka at Bengaluru in Writ Petition (Habeas Corpus) No.76 of 2020. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3.   As per the impugned judgment, the High Court rejected the writ petition, but subject to the visitation rights provided, thereunder, to the appellant. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4.      Conflicts   and   confrontation   occurred   in   the   connubial relationship and they ultimately culminated in the incident which is the genesis of this proceeding. According to the appellant, on 03.03.2020, Respondent No.3 came to Bengaluru in India with the child, without his consent. At that time, the appellant was already in India to attend his ailing mother viz., from 27.02.2020 till 09.03.2020. Upon reaching USA he realized that the child was missing from the matrimonial home. He made initial enquiries at the school, in vain, and thereupon lodged a complaint with the Office   of   Children’s   Issues,   USA,   alleging   that   the   child   was kidnapped by respondent No.3­wife.   Later, in the evening he could contact his father­in­law in India and on being informed of the availability of his wife and minor child at home in Bengaluru he withdrew the said complaint on 11.03.2020. Subsequently, he filed the Habeas Corpus writ petition before High Court of Karnataka at Bengaluru in September, 2020.  He has also filed a Custody Petition in the Superior Court of Washington, County of King,   on   22.1.2020 and   obtained   an  ex­parte  order   dated 26.10.2020. The respondent was directed to return the child to the United States. On 29.10.2020 respondent No.3 participated in the proceedings before the US Court and moved a motion for vacating the ex­parte order.  Consequently, the ex­parte order to return   the   child   was   vacated.   Later,   respondent   No.3   filed   a petition challenging the jurisdiction of the US Court and as per order dated 15.01.2020 the US Court upheld its jurisdiction over the minor child. Still later, she herself invoked the jurisdiction of the Superior Court of the State of Washington In and For King County, seeking temporary orders of child support and spousal support as also for appointment of a parenting evaluator. The US Court   passed   an   order   on   09.03.2021   granting   her   spousal support of $5000 USD per month subject to conditions. The US Court also passed an order directing her to return the child to US. Earlier, respondent No.3 filed a custody petition bearing G & W   No.246/2020   before   the   Family   Court   Bengaluru.   It   was dismissed   as   being   not   maintainable   for   want   of   jurisdiction under Section 9 of the Guardians and Wards Act, 1890. (Now, the matter is pending before the High Court of Karnataka in Civil Revision Petition No. 318/2021). According to the appellant, in the circumstances only the US Courts got jurisdiction to decide the question of custody of the minor child. The contention of the appellant is that the High Court had ignored the orders of the US Court and also failed to take a proper decision on the question as to what would be in the best interest of the child.  The appellant has taken up contentions and also produced documents in a bid to establish the affinity and affection of the child towards him, in this proceeding.  Obviously, his attempt is to establish that for the interest of the child, the child should return to US.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. Respondent No.3 resisted the contentions of the appellant. Before the High Court she contended that though the child was brought to India without the appellant’s consent subsequently she   was   permitted   to   have   the   custody   of   the   child   by   the appellant himself as also by the US Courts. In support of the contention that the appellant had given consent for keeping the child in her custody she relied on an e­mail sent by the appellant herein on 15.03.2020. The fact is that the child is now, admitted in a school in Bengaluru and he is now pursuing his studies there. Obviously, respondent No.3 had raised the contentions before the High Court to establish that the child was not in illegal or unlawful custody and therefore, the appellant is not entitled to the prayer sought for and on the contrary, she is entitled to continue with the custody of the minor child.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. A bare perusal of the impugned order would reveal that the High Court, as per the impugned order, rejected the contentions of   the   appellant   that   the   child   is   in   unlawful   custody   and respondent No.3 has been continuing with the custody of child in derogation of the orders of the US Courts to return the child   to USA. The impugned judgment would reveal that the court had whether   he   was   staying   with   the   mother   under   compulsion. Paragraph 85 of the impugned judgment would reflect what had transpired during such interaction. It would reveal that the child had expressed his desire to stay with his mother and further informed that he was comfortable in the school and studying in the school for the past one year. He had also divulged the fact that he was not facing any difficulty in his schooling as also in his stay at Bengaluru. On an analysis of the rival contentions and the facts mentioned in paragraph 85 the High Court came to the conclusion that the child is comfortable and feels secured in the custody of his mother in Bengaluru. Ultimately, the High Court   rejected   the   writ   petition,   but   subject   to   the   visitation rights, specifically mentioned in paragraphs 89 to 93 therein. In this circumstances, present appeal has been preferred assailing the judgment of the High Court dated 07.09.2021. interacted with the child in the chambers and ascertained as to whether   he   was   staying   with   the   mother   under   compulsion. Paragraph 85 of the impugned judgment would reflect what had transpired during such interaction. It would reveal that the child had expressed his desire to stay with his mother and further informed that he was comfortable in the school and studying in the school for the past one year. He had also divulged the fact that he was not facing any difficulty in his schooling as also in his stay at Bengaluru. On an analysis of the rival contentions and the facts mentioned in paragraph 85 the High Court came to the conclusion that the child is comfortable and feels secured in the custody of his mother in Bengaluru. Ultimately, the High Court   rejected   the   writ   petition,   but   subject   to   the   visitation rights, specifically mentioned in paragraphs 89 to 93 therein. In this circumstances, present appeal has been preferred assailing the judgment of the High Court dated 07.09.2021.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. At the outset we may state that in a matter involving the question of custody of a child it has to be borne in mind that the question ‘what is the wish/desire of the child’ is different and distinct from the question ‘what would be in the best interest of the   child’.   Certainly,   the   wish/desire   of   the   child   can   be ascertained   through   interaction   but   then,   the   question   as   to ‘what would be in the best interest of the child’ is a matter to be decided   by   the   court   taking   into   account   all   the   relevant circumstances.  When couples are at loggerheads and wanted to part   their   ways   as   parthian   shot   they   may   level   extreme allegations against each other so as to depict the other unworthy to have the custody of the child.  In the circumstances, we are of the view that for considering the claim for custody of a minor child, unless very serious, proven conduct which should make one   of   them   unworthy   to   claim   for   custody   of   the   child concerned, the question can and shall be decided solely looking into the question as to, ‘what would be the best interest of the child concerned’. In other words, welfare of the child should be the paramount consideration. In that view of the matter we think it   absolutely   unnecessary   to   discuss   and   deal   with   all   the contentions   and   allegations   in   their   respective   pleadings   and affidavits. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. Having taken note of the position thus settled in the said decisions we will now consider the question whether such an exercise   had   been   undertaken   properly   in   this   case.   This   is because in this case foreign Court, as noted above, passed orders for the return of the child to USA. There is nothing on record to show that such an order passed on the second occasion was also vacated  subsequently. True  that  the  first  order  to  that  effect passed on 26.10.2020 was subsequently vacated at the instance of the third respondent on 30.10.2020. However, going by the records the subsequent order passed in March 2021 Superior Court of Washington, County of King for the return of the child owing to non­compliance led to further order       for contempt on 29.4.2021. The High Court, obviously, observed that though the U.S Court subsequently suspended the order of spousal support did not pass any order regarding the custody of the child and hence, custody of the child is continuing with respondent No.3. We   have   referred   to   those   aspects   solely   for   the   purpose   of pointing out that the High Court was aware of the existence of order for the return of the child by the US Court</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15. Considering   the   fact   that   the   marriage   between   the appellant and respondent No.3 was conducted in Bengaluru in accordance with Hindu rites and ceremonies, the High Court held that the US Courts got no jurisdiction to entertain any dispute arising   out   of   the   marriage.   This   conclusion   was   arrived   at without taking into account the efficacy of the order passed by the US Court.   It was not strictly for the return of respondent No.3 but was an order intending to facilitate the return of a naturalised   citizen   of   America   holding   an   American   Passport. Paragraph 85 of the impugned judgment would reveal that the High Court had enquired about the desire and comfort of the child   with   respect   to   his   schooling   and   stay   during   the interaction. The court found that the child expressed no difficulty in his schooling or his stay in Bengaluru and ultimately satisfied that the child is comfortable and secure with staying with his mother</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17.  In this case during the course of the arguments the learned counsel for the appellant on behalf of the appellant submitted that in case respondent No.3 wants to return and stay in US with her parents so as to have proximity to and opportunity to take care of the child the appellant is prepared to do the needful, if the respondent   No.3   so   desires.   It   is   further   submitted   that   the appellant is also prepared to find suitable accommodation for them in that regard.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18. In the light of the above discussion, we allow the appeal and the   impugned   judgment   passed   by   the   High   Court   in   Writ Petition (Habeas Corpus) No.76/2020 is set aside. Consequently, the writ petition stands allowed and we issue following further directions:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i) Respondent No.3 shall ensure that the child returns back to United States of America forthwith. In that regard respondent No.3 as well as the appellant, whoever is in possession of the American passport of the child in question, shall do the needful in accordance with the law to enable the child’s return to his native country viz., USA;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii) Respondent No.3 and the appellant shall take necessary action to get the child relieved from the present school and also to get him admitted in any school in USA where the appellant is presently   residing,   without   causing   much   interruption   to   his studies;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iii) Respondent No.3, if she wants to accompany the child and stay back in USA will be at liberty to do so. If she requires arrangement of accommodation for herself and her parents in USA she may intimate her desire in that regard to the appellant. Upon such intimation in writing the appellant shall forthwith do the needful to honour the assurance given to this Court, as noted above, so as to enable respondent No.3 and her parents, as the case may be, to accompany the child and also to stay back in USA provided they fulfil the necessary legal formalities for their travel and stay in USA</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20. There will be no order as to costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>21. The appeal is disposed of as above.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e3d8999d074ba23ece9c6362a6870a3f.png', '70b5949c327316a10dbc6d0d9438bae6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-02', 1, '', '', '2022-07-30 19:00:23', '2022-08-02 09:26:20'),
(2017, 'bwFgvddASUjFIF26ozqurzjJt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When construction of building is unauthorised and without license, action of the Municipal authorities to remove the same cannot be found fault with. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>S. Sowmya Vs The Bruhath Bangalore Mahanagara Palike and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 45170 of 2015 decided on 11 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice R. Nataraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner has challenged the order dated 29.09.2015 passed by the Karnataka Appellate Tribunal in Appeal No.212/2015 rejecting the appeal filed by her under Section 443-A of the Karnataka Municipal Corporation Act, 1976 (hereinafter referred to as \'KMC Act, 1976\' for short). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2. The petitioner claims that she is the owner of 14 1/2 guntas of land in Sy.No.9, Katha No.416/9, Chunchagatta Village Road, Chunchagatta Village, Bengaluru - 560 062, she having purchased it in terms of a sale deed dated 15.07.2009. She claimed that the aforesaid land was converted for non-agricultural residential purpose. The petitioner claimed that the entire land in Sy.No.9 was assigned Khatha No.416/9 and the property purchased by her could not be bifurcated and separately assessed in view of a circular issued by the State Government. She contended that without bifurcation, the plan applied by her could not be sanctioned. Hence, for the sake of watch and ward, she had constructed a shed. The respondent No.2 found that the petitioner had constructed a building without a plan and hence, issued a provisional order under Section 321(1) of the KMC Act, 1976 on 05.02.2015 and called upon the petitioner to show cause why action should not be initiated. Since the petition did not reply a confirmation order was passed under Section 321)3) of the KMC Act, 1976. The petitioner challenged it before the Tribunal in an appeal under Section 443-A of the Act, 1976. The Tribunal rejected the appeal as admittedly, the construction was put up without a plan and license.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. The respondents issued a notice under Section 321(1) of the Karnataka Municipal Corporations Act, 1976 (for short \'the Act, 1976) on 05.02.2015. Since the petitioner did not reply to the said notice, a confirmation order under Section 321(3) of the Act, 1976 was passed on 11.02.2015. This was challenged before the Karnataka Appellate Tribunal in Appeal No.212/2015. The Tribunal noticed that the provisional and final order was served on the petitioner and that after the confirmation order was passed, the petitioner had submitted a reply claiming that she had sought for bifurcation of the property and that the respondents had failed to consider the same. The Tribunal noticed that the petitioner had not filed any reply and therefore, held that the construction put up by the petitioner was without obtaining any plan or license in accordance with law and hence, dismissed the appeal. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. The document at Annexure-F is a letter dated 18.02.2015 addressed by the petitioner to the respondent No.2 herein, wherein the petitioner has categorically stated that he has constructed a shed measuring 400 Sq.ft. and also a house measuring 600 Sq.ft. The photographs placed on record by the petitioner indicates that the construction was not a mere shed or a house but a row of 6 shops facing the main road. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. Since the petitioner has admittedly not obtained the sanction of a plan or license to construct these 6 shops, the provisional order or confirmation order is unexceptionable and therefore, the respondent Nos.1 and 2 was justified in initiating action under Sections 321(1) and 321(3) of the Act, 1976. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. Since the petitioner did not reply to the provisional order under Section 321(1) of the Act, 1976, the respondents were justified in passing the confirmation order as observed by the Tribunal. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. In that view of the matter, there is no merit in this writ petition and hence, the same is dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3fc953b380e9d44dc10c14566811f66b.JPG', '8b33693bcc1e555f4882901baba89d09.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-30', 1, '', '', '2022-07-29 19:05:50', '2022-07-30 12:59:15'),
(2018, 'gjzJfi5gISPGZDmGlqp1T2vGH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Land Revenue Act. When grant of lands is held to be valid, embarking upon a fresh enquiry regarding the revenue entries is impermissible. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>D.S. Veeranjaneya and others Vs The Tahsildar Anekal Taluk and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. 6123 of 2021 decided on 15 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. It is the admitted case of all the parties in this petition that proceedings under Section 136(3) of the Karnataka Land Revenue Act (for short ‘the Act’) had been initiated by the Deputy Commissioner in relation to the entries in respect of Sy.Nos.24 and 26 of Tigalachowdanahalli Village, Sarjapur Hobli, Anekal Taluk in RR(2)CR/1033-04. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2. It is contended by counsel for respondent No.3 that in the said proceedings, the Deputy Commissioner had observed that there was a grant in favour of several persons, but nevertheless, the matter was required to be remitted to the Tahsildar for fresh enquiry and disposal, in accordance with law.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. In the light of the admitted fact that the revenue entries in favour of the predecessor’s in interest of the petitioners were examined by the Deputy Commissioner in detail in a proceeding under Section 136(3) of the Act in RRT(A)/CR/195/2010-11, and it was concluded that they were valid grants on the basis of which the revenue entries were made, it is clearly impermissible to the Tahsildar to have embarked upon a fresh enquiry and pass the impugned order holding that the revenue entries were illegal. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. The impugned order, being in direct conflict with the earlier order passed by the Deputy Commissioner in RRT(A)/CR/195/2010-11, cannot be sustained and the same is accordingly quashed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. The writ petition is accordingly allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '337d29634177e8c335027a4bef51fe8b.JPG', '57a329495762660751485b356edc2953.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-07-30', 1, '', '', '2022-07-29 19:50:11', '2022-07-30 13:59:37'),
(2019, 'xQxUVXGsWbLUDhnf4Vq2DMsvL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Conscious possession of live cartridges fully knowing the consequences is essential to constitute offence under Sections 3 and 25(1)(a) of the Arms Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>John Joseph Fernandez Vs Sunil Dutt Sharma and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 8575 of 2018 decided on 12 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The Police after investigation submitted the charge sheet for the offence punishable under Sections 3 and 25(1)(a) of the Indian Arms Act, 1959, alleging that on screening of the bag belonging to the petitioner-accused, it was deleted that he was in possession of two live cartridges when he was travelling from Mangaluru Airport to Mumbai. The learned Magistrate took cognizance of the aforesaid offences and issued summons. Taking exception of the same, this petition is filed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. The allegation in the charge sheet is that the petitioner-accused was in possession of the two live cartridges which was detected while screening the bag belonging to the petitioner-accused when he was travelling from Mangaluru Airport to Mumbai. To constitute the commission of an offence punishable under Sections 3 and 25(1)(a) of the Arms Act, the Hon\'ble High Court of Delhi, in the case Jaswinder Singh supra, by following decision of the Hon\'ble Supreme Court in the case of Sanjay dutt -vs- State Through C.B.I. Bombay(II) has held that merely because the petitioner was found to be carrying two live cartridges which was detected during screening of her belonging, the same cannot be considered as conscious possession in order to establish the guilt for commission of an offence under Sections 3 and 25 (1) (a) of the Arms Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. In the present case, the charge sheet does not discloses that the petitioner-accused was in constructive possession of the two live cartridges fully knowing the consequences and also the petitioner-accused has not carried any pistol or revolver, except the subject two live cartridges and has not committed an offence punishable under Sections 3 and 25(1)(a) of the Arms Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. The Hon\'ble High Court of Delhi, in the case of SH Gaganjot surpa at para 16 has held that, A single whole cartridge is not a part of an ammunition nor it can it be called a minor ammunition and the Court is of the opinion that the interpretation placed upon the expression \"ammunition\" that the whole live cartridge is a minor ammunition falling within Section 45(d), is plainly contrary to the Act and erroneous. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. Section 45 (d) of the Arms Act, specifies that, the Act shall not apply to the acquisition, possession or carrying by a person of minor parts of arms or ammunition which are not intended to be used along with complementary parts acquired or possessed by that or any other person. Hence, Section 45(d) clearly specifies that in the absence of complementary parts i.e., pistol or revolver, mere possession of the live cartridges will not attract the provision contained in the Arms Act, 1959. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. In the present case, the petitioner-accused was only found to be in possession of the two live cartridges without any complementary parts i.e., pistol or revolver and as such the prosecution of the petitioner-accused under the provision of the Arms Act is not permissible. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10. In view of the preceding analysis, I am of the considered view that the petitioner-accused has made out a prime facie case for quashing the impugned proceeding initiated against him.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. ORDER:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space:pre\">	</span>Criminal Petition is allowed</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8a520669919b677b334b484e607e9b91.jpeg', 'd600bac5f95eee597a0d6fa1cc757732.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-02', 1, '', '', '2022-07-29 19:55:11', '2022-08-02 12:06:46');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2022, 'fEy5S0lOame5iJnrKATE0TvAB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SARFAESI Act. Whether action can be taken in relation to security interest created in an agricultural property can also be dealt with by the Debt Recovery Tribunal. Writ petition cannot be entertained on this ground alone. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Talampally Venture Pvt Ltd Vs Anant Kumar Sakhare and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Appeal 200178 of 2021 decided on 22 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar and Justice S. Rachaiah.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The defauIt committed by the borrower in repaying the Ioan that he had obtained from the bank resuIted in coIIatera I security created in Iand bearing Sy. No. 77 measuring 17 acres 39 guntas situated at the viIIage MaIagatti, TaIuk Aurad, District KaIaburagi (\'property\' for short) being brought to auction by the bank under Section 13(4 ) of The Securitization And Reconstruction Of Financia I Assets And Enforcement Of Security Interest Act, 2002 (`SARFAESI ACT\' for short). The borrower fiIed the writ petition seeking a writ of certiorari to quash the sa Ie notice dated 03.06.2021 pubIished in the news paper on 11.06.2021 as per Annexure-H and e-maiI communication dated 23. 07 .2021 issued by the bank as per Annexure-L. He aIso sought a writ of mandamus to the bank to consider his representation dated 20.07.2021.  The Iearned SingIe Judge by order dated 15.11.2021 , aIIowed the writ petition canceIing the saIe deed executed by the bank in favour of the auction purchaser and directed the bank as a Iso the auction purchaser to execute such documents as are required to annuI the saIe deed in respect of aforementioned property.  The Iearned SingIe Judge a Iso gave other directions as may be necessary for appropriating the amount that the borrower owed to the bank from the deposit made by him in the High Court and to take such other steps for compIeting the process of re-transfer of the property from the auction purchaser to the borrower.  Aggrieved by the order of Iearned Sing Ie Judge, these two writ appeaIs are fiIed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. The case posited by the borrower in the writ  court  was  that  he  avai Ied  Ioan  of Rs.59,75, 000/- from the bank on 26.10.2007 for construction of a godown in the property referred to above. The property was offered as coIIateraI security for the Ioan by executing a mortgage by deposit of tit Ie deeds. It was agreed between him and the bank that the Ioan shouId be repaid in 132 month Iy insta IIments spread over for a span of 11 years. He was paying the instaIIments reguIarIy. Without issuing any notice to him, the property was brought to saIe. The bank cIaimed to have taken symboIic possession of the property in the year 2015 itse If. In fact on 05.11.2018, he made payment of Rs.9,00 ,000/- and on 19.11.2018, he made payment of Rs. 6,50, 000/-. All these payments were subsequent to notice said to have been given in the year 2015 itself for taking possession. All of a sudden in the year 2021, without issuing fresh demand notice, the bank issued a letter to him intimating that the property was  sold  in  auction  on  29.06 .2021  for Rs.3 ,30, 00,000 /- to M/s Talampalli Venture Private Limited i.e., the auction purchaser. This letter dated 05. 07.2021 was served on him personally on 20.07.2021 .  In the said letter it was mentioned that the sale notice had been issued on 02.06.2021 . </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>The borrower alleged in the writ petition that in-fact he was not issued with any notice before taking over possession and before conducting the auction. His main contention was that the property could not have been sold in auction under the provisions of SARFAESI Act as no action under its Section 13( 4) could be taken in respect of an agricultural land.  On 20.07.2021, the borrower wrote a letter to the bank expressing his desire to clear entire outstanding dues. He had made ready Rs.80,00 ,000 /- for clearing the dues. But he received a reply from the bank that the auction purchaser had already paid Rs.3 ,30, 00,000 /- to it and thereby his loan account had been closed appropriating his dues from the sale proceeds and he should come over to bank and collect the balance of the sale proceedings. The borrower stated that if really auction was to be held, it was not required to sell entire 17 acre 39 guntas of land. The value of the godown itself was Rs.1,65, 00,000/-.  Any part of the land could have been sold for realizing the actual dues to the bank. In this view, the auction was bad. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Placing the facts as stated above before the writ court, the borrower took up the grounds in the writ petition that - SARFAESI Act prohibited sale of agricultural land, that the bank managed to sell the property without issuing any notice, that the bank should not have initiated sale based on alleged possession notice of the year 2015 having received more than 25% of the loan amount, that the possession notice was invalid since the amount due from him had been reduced to a great extent and in this view, a fresh notice should have been issued to him, that the letter dated 05.07.2021 issued by the bank only stated that highest bid was for Rs.3.30 crore and therefore the sale was not complete on that day, that if the godown constructed in an area of 25,740 Sq.Ft. had been sold, it would have cleared the entire loan and also the penal interest if any, that the bank having approached the Debt Recovery Tribunal (`Tribunal\' for short) by making an application for recovering the dues and having obtained an order from the Tribunal should not have invoked the provisions of SARFAESI Act, etc.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. The conspectus of the above decisions is this: It is not as though High Court cannot entertain a writ petition under Article 226 of the Constitution whenever alternative remedy is available.  Writ jurisdiction can certainly be invoked where fundamental rights are sought to be enforced or their violation is complained of, or where there is failure of principles of natural justice or when the order impugned in the writ petition was passed by an authority having no jurisdiction or vires of an Act is questioned.  But the question is not only the availability of alternative remedy, but if it pertains to availability of efficacious remedy, the High Court should not ordinarily entertain the writ petition. The judgments that Sri Ameet Kumar Deshpande and Sri S.S.Aspalli have relied upon directly deal with availability of efficacious remedy under Section 17 of the Act. Though in those cases the order of granting interim orders in relation to action under Section 13 of the Act were questioned, the issue whether writ petition can be entertained when efficacious remedy under Section 17 of the Act is available, is discussed at length. But the judgment of the Supreme Court in Uttar Pradesh Power Transmission Corporation Ltd. (supra), does not discuss applicability of Section 17 of the Act. What the Supreme Court has reiterated is the settled principle as to when the High Court can entertain writ petition inspite of availability of alternative remedy. Therefore we are of the opinion that Uttar Pradesh Power Transmission Corporation Ltd. (supra), does not countenance the argument of Smt. Sandhya U Prabhu that the writ petition is maintainable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. Even if we analyze the scope of Section 17, it can be very well said that it relates to questioning the measures taken under Section 13(4 ) of the Act. The word `measure\' includes enforcing a security interest for recovery of the dues to the bank or financial institution.  If by virtue of Section 31, no action can be taken in relation  to  security  interest  created  in  an agricultural property, there is no bar for questioning the same under Section 17 of the Act. The Debt Recovery Tribunal can decide whether a secured creditor can proceed under Section 13(4) in respect of security interests as enumerated in Section 31 of the Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>17.<span style=\"white-space:pre\">	</span>Other points<span style=\"white-space:pre\">	</span>of argument<span style=\"white-space:pre\">	</span>of Smt. Sandhya U Prabhu were that the borrower has disputed the service of notice under Section 13(2) of the Act and the possession notice and that the Commissioner appointed by the writ court has given a report that the property is an agricultural land and there is nothing more to be ascertained even if an enquiry is held.  Moreover even if it is to be ascertained once again, the DRT cannot record evidence while deciding an application under Section 17 and therefore writ petition is maintainable.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>19. Sub-section (2 ) makes it very clear that the DRT can examine whether the measures taken under Section 13(4) are in accordance with the provisions of the Act. According to Sub-section(3), the DRT can examine the facts and circumstances of the case and also evidence produced by the parties. After examining the facts, circumstances and evidence, DRT can declare any of the measures taken under Section 13(4) as invalid; it can restore the possession of secured assets or the management to the borrower or other aggrieved persons and it can also issue any other directions as found to be appropriate.  This being the scope of Section 17, the borrower could have urged all the grounds that he had taken in the writ petition before the DRT by making an application under Section 17 of the Act. It is an unacceptable argument that DRT cannot record evidence in a proceeding under Section 17, in our opinion it can. Therefore we are of the clear opinion that the writ petition filed by the borrower was not maintainable. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>20. If we peruse the impugned order, what we find is, infact the learned Single Judge has too opined that writ petitioner i.e., the borrower ought to have approached the DRT.  But the learned judge appears to have taken a decision to entertain the writ petitioner for some other reasons,  namely,  entire  property  measuring  17 acre 39 guntas was auctioned for a consideration of Rs.3, 30,00,000/-.  When the actual due was very less, it was not necessary to auction the entire land. The learned Single Judge has taken note of the fact that the borrower had already deposited Rs. 3,41,00 ,000 /- before this Court on 19.10.2021 to show his bonafides and therefore the case appears to be exceptional one for entertaining the writ petition. We may state that the learned Single Judge appears to have entertained the writ petition showing sympathy towards the petitioner.  Of course we do not deny the fact that sympathy can be shown if genuine grounds are made out by the borrower for not being able to repay the loan. The enforcement action taken under the SARFAESI Act or Order XXI of the Code of Civil Procedure relating to sale of movables or immovables, is to see that money owed by the borrower is repaid.  It is not with a view  to  bringing  the  property  for  auction  and especially if Rules 55 (a) and 83 of Order XXI CPC are read, it can be said that opportunities are given to the judgment debtor for repaying the money at various stages. Looked in this view, it cannot be said that the bank cannot resort to action under Section 13 of the Act if the borrower does not show promptness in repaying the loan borrowed by him. Bank is a Trustee of public money.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>22. Then with regard to agricultural nature of the property, Smt. Sandhya U Prabhu argued that the record of rights produced by the borrower and the commissioner\'s report clearly indicate that it is an agricultural land and Section 31(i) is a clear bar. The argument of Sri Ameet Kumar Deshpande was that merely for the reason that in the revenue records the property is shown as agricultural land, it cannot be said that Section 31(i) is applicable to exclude the property from the purview of enforcement under Section 13 (4) of the Act. The property may be agricultural, but did the parties intend to use the property for agricultural purpose or not is the determining factor to apply bar under Section 31</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>25. Another point argued by Smt. Sandhya U Prabhu was that the bank having obtained an order by making an application under Section 19 of the Recovery of Debts and Bankruptcy Act should have proceeded to take action under the said Act. Though she submitted that the action under Section 13 of the Act is parallely available, her emphasis of argument was, once an order on the application under Section 19 of the DRT Act was obtained, there was no bar as such to proceed against the agricultural property. Sri Ameet Kumar Deshpande replied to this argument by placing reliance on the judgment of the Supreme Court in the case of M/S. TRANSCORE V. UNION OF  INDIA  AND  ANOTHER  [AIR  2007  SC  712], that  the  remedy  available  under  the  Act  is independent, and just because the bank approached the DRT by making an application under Section 19, it cannot be said that the bank lost its right to take action under the Act.  He argued that doctrine of election is not applicable. Sri S.S.Aspalli also argued that both actions are independent</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>26. Therefore we have to state that the action taken by the bank under Section 13 (4) of the Act, despite an order having been already passed by the DRT deciding an application under Section 19 of the DRT Act, cannot be said to be improper.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>27.<span style=\"white-space:pre\">	</span>Smt. Sandhya U Prabhu while arguing emphasized the fact that there was no service of notice on the borrower. On this point, she placed reliance of the judgment of Supreme Court in the case  of  OASIS  DEALCOM  PRIVATE  LIMITED  V. KHAZANA DEALCOMM PRIVATE LIMITED AND OTHERS [(2016)10 SCC 214]. She also urged another point that there was no need to bring entire property for sale when a part of it could have fetched the actual dues to the bank and in this regard she referred to the judgment in the case of RAM KISHUN AND OTHERS V. STATE OF UTTAR  PRADESH  AND  OTHERS  [(2012)11  SCC 511]. We agree with her argument that service of notice as envisaged under Section 13(2) of the Act and Security Interest Enforcement Rules are mandatory and any infraction in issuance and publication of notice vitiates the whole action. But the bank disputes the contention of the borrower and according to it there was service of notice and publication in news papers.  Again this is a disputed question of fact on which evidence is necessary and therefore, this can be decided only in a proceeding under Section 17 of the Act. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>28. So also whether sale of part of the property would have fetched the entire dues, is a question of fact. Sri Ameet Kumar Deshpande and Sri S.S.Aspalli argued that the bank was not in a position to auction a part of the property because of the reason that the part of the property to be sold was required to be demarked first, and certain revenue documents were required to be produced. The bank could not have obtained the revenue documents without the consent and co¬operation of the borrower.  This submission indicates that the bank may be having a reason as to why it did not opt to sell a part of the property, but in our opinion this issue can be decided by the DRT as it is also a question of fact. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>29. It is very important to mention here that actually the writ court has not considered all the points that Smt. Sandhya U Prabhu argued before us. The learned Single Judge has allowed the writ petition  on  some  other  grounds.  But  from  the foregoing discussion we come to conclusion that the order of the learned Single Judge is not sustainable.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b> Both writ appeals are allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8acf930da4bed12302edea1b035ac93c.jpg', '7a34c9885ac271418bfd758ca57b7397.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-02', 1, '', '', '2022-07-31 23:39:21', '2022-08-02 13:55:07'),
(2023, 'KYeZrS0XnBjpFOymbIbWuvXoA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Limitation Act has no application to claims under the Carriage by Air Act 1972. Period of two years for enforcing the right would be extinguished if no action is brought within the said period. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bhagwandas B. Ramchandani Vs British Airways.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4978 of 2022 decided on 29 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.M. Joseph and Justice Pamidighantam Sri Narasimha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. </span>The Appellant is a sole proprietary concern engaged in the business of\r\nimports and exports. The Appellant sent a cargo containing fruits and\r\nvegetables from Mumbai to Canada via London by employing services of\r\nBritish Airways1 on 04.01.2010. However, on 06.01.2010 due to bad weather\r\nconditions in London the flight could not depart to Canada, as a result the\r\nfruits and vegetables were damaged and were consequently destroyed. The\r\nAppellant lodged a claim for ?1,70,221.56/- with the Respondent. On\r\n30.06.2010, the Appellant once again sent a similar cargo containing fruits\r\nand vegetables from Mumbai to Canada. Yet again, the cargo could not be\r\nsent due to packaging and other issues and, as a consequence, the cargo had\r\nto be destroyed. The Appellant raised a claim dated 20.07.2010 for\r\n?4,27,922/-. Acknowledging the receipt of the notice, the Respondent sent a\r\nmail on 02.11.2010 offering to settle the matter at 50% of the claim amount. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The Trial Court framed a preliminary issue on the ground of limitation\r\nand by its judgment dated 05.02.2014 held that the suit is not barred by\r\nlimitation as the period prescribed in Rule 30 of the Second Schedule to the\r\nCarriage by Air Act, 19723\r\ncould be calculated from 28.10.2010, that is, the\r\ndate when the Respondent had acknowledged a proposed settlement of the\r\nclaim at 50% of the demand. For this purpose, the Trial Court relied on\r\nSection 18 of the Limitation Act by taking it for granted that the said Act is\r\napplicable to proceedings under the Air Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Issues:\r\n9. In view of the rival submissions, the following issues arise for\r\nconsideration:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Does Limitation Act, 1963 apply to the period specified in Rule 30\r\nof the Second Schedule of the Carriage by Air Act, 1972?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Whether the Air Act, 1972, particularly Rule 30 of the Second\r\nSchedule expressly excludes the applicability of the Limitation Act,\r\n1963?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Issue No.1:\r\nDoes Limitation Act, 1963 apply to the period specified in Rule 30 of the\r\nSecond Schedule of the Carriage by Air Act, 1972?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>43. In the ultimate analysis, keeping in view the legislative history of the\r\nConvention and in view of the consistent interpretation of Article 29 of the\r\nConvention adopted in different jurisdictions, for the purpose of uniformity\r\nand also to subserve the purpose and object of the Convention, we are of the\r\nview that Rule 30 (2) does not enable applicability of exclusion of periods\r\nfor the purpose of reckoning the period of two years.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Issue No. 2\r\nWhether the Air Act, 1972, particularly Rule 30 of the Second Schedule\r\nexpressly excludes the applicability of the Limitation Act, 1963?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>45. While dealing with Issue No.1, we have held that the right to damages\r\nitself is extinguished after the expiry of the period of two years and therefore\r\nthe provisions of the Limitation Act have no application as there is no right\r\nsubsisting for enforcement. In this context we have referred to Section 3 of\r\nthe Limitation Act which merely bars the remedy and not the right itself, but\r\nwhen the statute extinguishes the right itself the position is very different. We\r\nwill however consider the present argument of Shri Navare as an alternative\r\nplea and proceed forthwith to deal with the same<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>46. Where a period of Limitation is prescribed in a special law, by virtue of\r\nSection 29 of the Limitation Act, such period will apply as if it was provided\r\nin the Schedule of the Limitation Act. Consequently, the provisions of\r\nSections 4 to 24 will apply for the purpose of computation of period of\r\nlimitation. This provision is subject to a bright exception that the Limitation\r\nAct will not apply if it is “expressly excluded” by the Special Act</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>51. The International Conventions incorporated in the Act are the</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i)\r\nWarsaw Convention, 1929;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) The Warsaw Convention, 1929 as amended\r\nby the Hague Protocol on 28.09.1955 and</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iii) the Montréal Convention,\r\n1999. Section 3 of the Act incorporates the Warsaw Convention into the Act\r\nas the First Schedule and specifically provides it the status of law in India.\r\nSection 4 incorporates the Hague Protocol and provisions it in The Second\r\nSchedule. Section 4A for giving effect to Montréal convention, provides The\r\nThird Schedule to the Act and specifically provides the status of law to these\r\nprovisions.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>52. The Warsaw Convention as amended by the Hague Protocol is a\r\ncomplete code within itself for all questions relating to carriage by air by\r\ninternational carriages. Rule 1(1) provides that the Hague Protocol shall <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">apply to “all international carriage of persons, baggage or cargo performed\r\nby aircraft for reward”. Rule 2 provides that the Convention will apply to\r\ncarriage performed by the State or by legally constituted public bodies.\r\nChapter II of the Convention (Rules 3 to 16) is entitled “Documents of\r\nCarriage”. Rule 3 relates to the documents that a carriage of passengers must\r\ndeliver. Rule 4 prescribes a mechanism for baggage check. Rule 5 to 11\r\nrelates to the air waybill in cases of cargo carriages. Rule 12 relates to the\r\nright of the consignor to dispose of the goods in a manner that is not\r\nprejudicial to the carrier. Rule 13 pertains to the rights of the consignee upon\r\nthe arrival of the goods. Rule 13(3) provides that where there is a loss of\r\ngoods, the consignee shall be entitled to enforce the rights which ‘flow from\r\nthe contract of carriage’. Rule 14 provides for the consequences of noncompliance of Rule 12 and 13.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">53. The Chapter with which we are presently concerned with is Chapter III\r\nwhich is titled ‘Liability of the Carrier’. Rule 17 provides for the liability of\r\na carrier for damages in the event of death or wounding or other injuries\r\ncaused to a passenger while onboard the aircraft. Rule 18 envisages the\r\nliability of a carrier in the event of destruction, loss, damage etc. of cargo.\r\nSimilarly, Rule 19 concerns the liability of a carrier upon delay in the carriage\r\nof passengers, baggage or cargo. Rule 20 provides for an equitable exemption\r\nto the carrier if he proves that he had taken all necessary measures to negate\r\nthe delay or damage. Rule 21 is yet another equitable provision that protects </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the carrier in cases of contributory negligence. Rule 22 specifies the\r\nminimum liability of the carrier. Rule 23 nullifies all limits which are lower\r\nthan those provided in Rule 22.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>57. The Convention certainly incorporated two variables in the context of\r\nreckoning the period specified in Rule 30 (1) of limitation. The first event\r\nrelates to the time, which is a fixed period of two years. The second event\r\nrelates to the commencement of cause of action which has been specified as\r\nany of the three events being (i) arrival at the destination; or (ii) date on which\r\nthe aircraft ought to have arrived; or (iii) the date on which the carriage\r\nstopped. Now, the only event that remains is the date on which the action for\r\ndamages is initiated as this would depend upon the law of the Court seized of\r\nthe case. Rule 30(2) specifically provides that “the method of calculating the\r\nperiod will be determined by the law of the Court seized of the case.” This\r\nshould necessarily follow for the reason that the period of two years for\r\nenforcing the right would be extinguished if an action is not brought within\r\nthe said period.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>58. We may also note that giving effect to the meaning of the words the\r\n‘law of the court seized of the case’ would lead to an anomalous situation\r\nwhere the law of every country would be incorporated into the Convention,\r\nthereby defeating the purpose of an International Convention which is to\r\nbring about uniformity across the globe in the laws applicable to carriage by\r\nair</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>59. Sub-Rule (2) must therefore be interpreted harmoniously keeping in\r\nmind not only the content of Sub-Rule (1) but also the purpose and object of\r\nthe Convention which is to bring about the unification of Rules relating to\r\nInternational Carriage by Air. The intention behind Article 35(2) was merely\r\nto fix the date on which the suit (or action) has ‘begun’ and the date on which\r\nlimitation expires, as per the laws of the country. The example given by the\r\nFrench Delegation makes this position clear as it was to accommodate\r\nprovisions such as pre-trial conferences. As stated above, in India, such a\r\nposition could possibly arise if the legislature envisages mandatory pre-trial\r\nmediation. It is in order to accommodate for this eventuality that the lawmakers left some room for the domestic law to operate.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>60. Having considered the matter in detail, we are of the opinion that Rule\r\n30 of the Carriage by Air Act 1972, expressly excludes the applicability of\r\nthe Limitation Act,1963. Issue No.2 is answered accordingly.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">61. For the reasons stated above, the Appeal arising out of SLP No. 16767\r\nof 2018, from the judgment of the High Court of Judicature at Bombay in WP </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">No. 6647 of 2014 is accordingly dismissed. The parties shall bear their own\r\ncost.\r\n</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0e7c7ab1235831b0077abd59ab6901c1.jpg', 'd7900ba8df92c6db83e30995bcfadf12.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-01', 1, '', '', '2022-08-01 00:10:23', '2022-08-01 08:29:16'),
(2024, '9aG4cQkVlyxZi56ReWF8AyKPy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When there is no clause prescribing minimum quantity of electricity to be purchased by Govt Electricity Company under Power Purchase Agreement, licensee cannot be restrained from injecting power generator into the grid. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Antharagange Power Private Limited Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 11333 of 2022 decided on 12 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner on grant approval by the Government of Karnataka set up a Small Hydro Power project in the private sector and entered into the Power Purchase Agreement (PPA) with the second respondent on 15.06.2017 for a period of 20 years. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The second respondent sent the Power Purchase Agreement to the third respondent (KERC) for approval on 17.07.2017 and the third respondent (KERC) returned the Power Purchase  Agreement  to  the  second  respondent-Gulbarga Electricity Supply Company Limited (for short \"GESCOM\") stating that the GESCOM has not provided any justification to purchase power over and above the Renewable Purchase Obligation (RPO) of GESCOM and in the meanwhile, the petitioner\'s plant was commissioned and the petitioner started supplying power to the second respondent-GESCOM. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The second respondent-GESCOM on 25.11.2019 again sent a proposal for approval of the Power Purchase Agreement to the third respondent-KERC and the third respondent-KERC by communication dated 11.12.2019 returned the Power Purchase Agreement stating that the second respondent-GESCOM has not provided satisfactory justification to procure power from the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Such being the case, though the petitioner was permitted to generate power and inject the same into the grid by the second respondent-GESCOM from the month of August 2019 to May 2022, the second respondent-GESCOM discontinued with the supply of power to the petitioner\'s plant and also restrained the petitioner from injecting the power generator into the grid. Hence, this petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. The only point that arise for consideration in this petition is, whether the third respondent-KERC is justified in issuing the impugned communication refusing to grant approval of Power Purchase Agreement stating that the second respondent-GESCOM has not furnished any justification for procurement of power from the petitioner over and above Renewable Energy Purchase Obligation target. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. Clause 4(1) of the Regulations, 2011 specifies that, every distribution licensee shall purchase a minimum quantity of electricity from renewable source of energy expressed as a percentage of its total procurement during that particular year. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. In terms of the said clause, the minimum quantity of the electricity to be purchased by the licensee was fixed at 7% for the period 2018-19 and 8% for the period 2019-2020.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 12. Clause 4(i) of the regulation does not specify that G & S Company cannot process power from the petition our and abuse (<i>SIC over and above) </i>the Renewable Energy Purchase Obligation Target. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. Hence, the impugned communication issued by the third respondent-KERC is contrary to Clause 4 of the said Regulations and also Section 86(1)(e) of the Electricity Act, 2003 which specifies that KERC shall promote cogeneration and generation of electricity from renewable sources is not sustainable in law.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>14. Accordingly, I pass the following order:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b> i)<span style=\"white-space:pre\">	</span>Writ petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>iv)<span style=\"white-space:pre\">	</span>Pending consideration of the grant of approval of Power Purchase Agreement by the third respondent-KERC, the second respondent-GESCOM is hereby directed to restore power connection to the petitioner\'s plant.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ffc22761b99cd7322ddd42599be51e92.jpeg', '91c9b0dc4940aa79d08b6dca308c96cd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-02', 1, '', '', '2022-08-01 00:33:22', '2022-08-02 06:21:20'),
(2027, 'sadebFR7IJ1FZY4JMm96uqeRX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Acquisition under the BDA Act. Land loser can choose compensation in the form of land or site instead of cash anytime before he actually withdraws the cash compensation. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bairamma Balaiah Vs The Commissioner Bengaluru Development Authority and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 5849 of 2022 decided on 12 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Petitioner is the absolute owner of the land bearing Sy. No.46 measuring 26 guntas situated at Bheemanakuppe village, Kengeri Hobli, Bengaluru South Taluk. The said property was acquired by the respondent-BDA for formation of Nada Pradbhu Kempegowda Layout by final notification dated 18.02.2010. The petitioner claims that she is an illiterate person and an agriculturist having no worldly knowledge and as instructed by the respondent BDA, put her signature to the consent award. Furthermore, the petitioner was not aware that there were more options to receive compensation in terms of land which she came to know subsequently. Hence, she submitted a representation dated 19.01.2022 to award land/site instead of cash, since she has not withdrawn the cash compensation which has been deposited in Court. However, the respondent-BDA has not taken any action on the said representation.  Hence, the petitioner is before this Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. When the cash compensation is not withdrawn, it would be for the land looser to chose compensation by way of cash or land.  Such choice may be exercised at any time before the actual payment is received by the respondent-BDA.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 4. Order:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) The writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8f22b19f81f074555e9f24ce12131ae9.JPG', '99fdb6f31e3eca0d389700c894870224.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-04', 1, '', '', '2022-08-01 18:59:00', '2022-08-04 13:59:29'),
(2026, 'CXtFn9TbcXQQ2hP8mLkDl9UVv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Daksha Legal Monthly Digest - July 2022', '<p><b style=\"background-color: rgb(255, 255, 0);\">Daksha Legal Monthly Digest - July 2022</b></p><p><b style=\"background-color: rgb(255, 255, 0);\">Please download PDF and click on the link to access the post/judgement. <br></b><br></p>', '8d8f8c19a80441fd15ab539ea6ce0e45.JPG', '0d3cf24c9ec5dd9800fc104f9de5f763.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-01', 1, '', '', '2022-08-01 03:47:37', '2022-08-01 15:57:37');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2028, 'mZUpgeGYTeOmehaWrp2Biuydi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'To constitute offence under Section 3(1)(j) of the SC & ST (Prevention of Atrocities) Act, the accused must have employed the person for manual scavenging knowing fully well that he belongs to SC & ST community. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>C. Somashekar Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 2441 of 2018 decided on 13 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><font face=\"Calibri, sans-serif\">The FIR&nbsp; was lodged by respondent No.1 alleging that on 15.02.2018 at about 8.30 a.m., seven persons who belong to Scheduled Caste were employed to clean the underground sewage pipe-line manually without providing any safety measures, within the City limits of Kolar City despite knowing fully-well that manual sewage cleaning is prohibited under the provisions of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 (for short ‘the Act, 2013’). Hence, the petitioner along with other accused have committed the offences under Section 8 and 9 of the Act.</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The FIR was registered in Crime No.95/2018 for the offences punishable under sections 201, 34 of IPC and under Sections 3(1)(j) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the SC &amp; ST Act’) and under Section 8 and 9 of the Act, 2013. Taking exception of the same, this petition is filed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The allegation against the petitioner/accused and other accused is that they have employed the persons belonging to the SC and ST community to clean the sewage pipe-line manually and have committed the aforesaid offences under the Act, 2013. Section 10 of the Act, 2013 prescribes that the learned Magistrate can take cognizance of the offence only on complaint filed by the officer specified under the Act. Hence the registration of the FIR filed by the first respondent against the petitioner is contrary to section 10 of the Act, 2013 and the same is without authority of law. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. To constitute the offence under Section 3(1)(j) of the SC &amp; ST Act, a person must be employed for manual scavenging knowing fully well that he belongs to SC &amp; ST community.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. In the present case, there is no allegation against the petitioner-accused No.2 that he had knowledge that the persons who were employed to do manual scavenging belong to the SC and ST community. In the absence of essential ingredients so as to constitute the commission of the offence under Section 3(1)(j) of the SC and ST Act, the registration of the<span style=\"white-space:pre\">	</span>FIR<span style=\"white-space:pre\">	</span>is also impermissible. Accordingly, I pass the following: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space:pre\">	</span>Criminal Petition is allowed.</b></font></span></p>', '45c80d5e1fcbb379198cba610cd86cd0.jpeg', '651f1fcffc36027785cd52cf64be22a7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-03', 1, '', '', '2022-08-01 19:15:05', '2022-08-03 12:52:28'),
(2029, 'GgSR0z6iSSTq78PsYqzvYWWvS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Decree holder can decide in which of the several modes mentioned in Section 51 of the Civil Procedure Code, he will execute his decree. The judgment debtor cannot invoke the Section. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>C. Nagaveni Vs Ramadevi B.M and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 13212 of 2022 decided on 14 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sachin Shankar Magadum.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The facts leading to the case are as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The father of respondent Nos.1 to 4/decree holders namely Babu Reddy entered into an agreement to sell in respect of land bearing Sy.No.15 as well as the present suit schedule property bearing Sy.No.68/1 measuring 34 guntas. The father of respondent Nos.1 to 4 was compelled to institute a suit for specific performance in O.S.No.1748/2004 seeking relief of specific performance against the respondent Nos.5 to 14. The present petitioner and respondent No.15 entered into a compromise with Babu Reddy, the original decree holder in respect of site Nos.5, 18, 6 and 17 respectively. In terms of compromise petition, a decree was drawn in O.S.No.1748/2004. In the said compromise,  the  original decree holder and the owners of the land in question admitted the sale deeds in favour of the present petitioner/judgment debtor No.10 as well as judgment debtor No.11. In terms of compromise decree, the father of respondent Nos.1 to 3 filed execution proceedings in Ex.No.2903/2011 and sought for execution of sale deed in terms of the agreement to sell dated 05.12.1993.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. The respondents/decree holders entered into compromise with the present petitioner and judgment debtor No.11. In terms of compromise decree, the respondent Nos.1 to 4 and the present petitioner and other respondents have entered into compromise and the decree holders have admitted the title of the present petitioner herein.  At clauses (1) and (2), the decree holders have admitted in unequivocal terms admitting the title in respect of properties covered under the sale deeds. At clause (3), the present petitioner has also admitted that excluding his property and judgment debtor No.11 property, the petitioner will not assert any right in the remaining property. In terms of the compromise petition, the suit filed by the original decree holder was decreed in part against the present petitioner and other contesting defendants.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. Based on the decree passed in the above said suit, the original decree holder i.e., father of the respondent Nos.1 to 4 filed execution petition seeking direction against the vendors to execute registered sale deed and thereby convey the suit schedule property excluding the sites sold in favour of the present petitioner and judgment debtor No.11. At the instance of the present petitioner, Court Commissioner was appointed. The Court Commissioner having verified the title documents and on spot inspection has prepared sketch and sketch is furnished along with Commissioner report. I have also given my anxious consideration to the sketch which is produced at page 144 to the writ petition. The property purchased by the petitioner and judgment debtor No.11 is clearly demarcated in the sketch. Excluding the properties owned by the present petitioner and judgment debtor No.11, the Court having accepted the commissioner report has called upon the decree holders to furnish a draft sale deed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. On perusal of the sketch, this Court would find that the Commissioner on spot inspection found that there is no road on the Northern side of petitioner\'s property as alleged. In fact, he has specifically observed in the sketch that except the Southern side road abutting to petitioner\'s property, no such road exists on the Northern side of petitioner\'s property. He has also observed that none of the parties have placed on record any authentic document or an approved layout by competent authority. There is no dispute that petitioner\'s property is bounded by a road on the Southern side. The petitioner\'s claim is that on Northern side there is a road and therefore, Court Commissioner ought to have carved out the road portion while preparing the sketch<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. On perusal of the schedule, this Court would find that the road is abutting only on the Northern side, while to the Southern side of the petitioner\'s property, it is shown as bounded by private property and not road. The present execution petition is filed seeking direction against the vendors to execute registered sale deed in favour of respondent Nos.1 to 4/decree holders excluding properties of petitioner and judgment debtor No.11. Therefore, the execution is confined only to secure sale deed from the original owners excluding the petitioner\'s property. It is in this background, this Court would find that question of providing an opportunity to the petitioner to cross-examine the Commissioner in the present set of facts is found to be unwarranted. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. The petitioner is asserting right over the Northern side road and if such a road emanates from the covenants in the sale deed dated 07.09.1992, then the petitioner has to seek redressal of his right in an independent suit. The nature of right has to be also determined and petitioner has to seek relief of declaration in that regard. The present execution petition is filed for limited purpose wherein a direction is sought against the decree holders\' vendor to come forward and execute sale deed excluding the petitioner\'s property. On spot inspection, commissioner has stated that there is factually no road  in  existence. In such a situation, the petitioner cannot expand the scope of enquiry in the present execution proceedings and seek adjudication of his right over the Northern side road. The boundaries shown in the sale deed do not tally with the commissioner report. Therefore, these disputed questions of facts cannot be adjudicated in the present execution petition. In terms of the compromise petition, the property owned by the petitioner is carved out and by excluding the petitioner\'s property, the decree holders are called upon to submit a draft sale deed. In the process, the Executing Court has accepted the commissioner report. The question of cross-examining the Commissioner in the present set of facts is a futile exercise and even if permitted, will not assist the petitioner in any manner having regard to the scope of the execution petition.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17. If all these significant details are taken into consideration, then I am of the view that the grounds urged in the present writ petition cannot be entertained. If such recourse is adopted, it would virtually expand the scope of enquiry in pending execution proceedings which is impermissible. The existence of road and petitioner\'s right over the Northern road on the basis of registered sale deed are all disputed questions of facts which cannot be decided in the present execution proceedings. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. Though learned Senior Counsel for petitioner has placed reliance on Section 51 of CPC, the same has no application to the present case. This Section defines the jurisdiction and power of the Executing Court, the manner in which decree has to be executed. Section enumerates in general terms the various mode in which the Executing Court may order the execution of decree. It is for the decree holder to decide in which of the several modes mentioned in the Section, he will execute his decree. The judgment debtor cannot invoke Section 51 of CPC.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The writ petition is dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'cc2d1150b20010e0b65f6b180d6d11da.JPG', '56e907ba3ec8bc3a10f94fcc25eeb82d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-03', 1, '', '', '2022-08-02 16:18:32', '2022-08-03 13:56:49'),
(2030, 'GpTG7aFQm2jUbeHTGoKgX3JyD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Winding up proceedings can continue even after payment of principal amount if contractual, crystallized and admitted interest on the principal amount is not paid. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Anil Singhal and others Vs M/S Alliance Infrastructure Projects Private Limited.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Company Petition 79 of 2010 decided on 14 July 2022.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Justice Suraj Govindaraj. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. The petitioners contended that they have executed agreements, for purchase of plots and for construction of villas, with respondent and its group of companies. The said plots were situated at Andhra Pradesh and Karnataka. The petitioners claiming that they have a joint action against the respondent have filed a common petition. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. The respondent is a private limited company having its registered office at the address shown in the cause title carrying on a business of real estate, development, and construction of residential properties and condominiums. M/s Alliance Springs Constructions Pvt. Ltd., a subsidiary company of Respondent and M/s Amoga Projects, a partnership firm is said to be part of the respondent’s group. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. It is contended that the M/s Amoga Projects is the owner of land in various survey Nos. in Lalgudi Maripet, Shamirpet Mandal, Rangareddy District, Near Biotech Park, Andhra Pradesh. The said land was developed by M/s Alliance Springs Constructions Pvt. Ltd. which as stated is a part of the respondent’s group. It is also stated to have developed certain lands in Kannamangala Village, Bidarahalli Hobli, Bangalore East Taluk. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. The Petitioners No.1 to 5 had entered into agreements to sell as well as construction agreements with M/s Amoga Projects represented by its GPA holder M/s Alliance Springs Constructions Pvt. Ltd. for purchase of plot and construction of villas. In this regard there were certain payments made by the petitioners to the respondent. Petitioners No.6, 7 and 8 had entered into agreements of sale with respondent as the vendor therein. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. There is a “buy back offer” which is contemplated in the agreements, which essentially is a resale option where under said M/s Amoga Projects and M/s Alliance Springs Constructions Pvt. Ltd., agreed to buy back the plots within a period of 30 days after expiry of the period prescribed in the agreement. In order to enable the buyback, post dated cheques were also issued to each of the petitioners. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. The petitioners exercised their right to resale/buy back of plots and presented the respective cheques which came to be dishonored with an endorsement funds insufficient”, though certain payments were made thereon by the respondent, it is contended that it was towards principal amount and further amounts due to be paid to the petitioners amounts to Rs.3,76,27,753/-. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. The points that would arise for determination are:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>1. Whether on the payment of the principal amount can the proceeding under Section 433 (e) and (f) of the Companies Act, 1956 be continued on account of non-payment of interest?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. When can non-payment of interest said to be a debt due and liable to be paid?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. Whether in the present case the petitioners have made out any debt due and liable to be paid by the respondent and respondent not having paid, would power under Section 433 (e) and (f) be required to be exercised by this Court?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4.  What order? </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. Answer to point No.1:- Whether on the payment of the principal amount can the proceeding under Section 433 (e) and (f) of the Companies Act, 1956 be continued on account of non-payment of interest? </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17.2. Thus, from the said decision in Jyothi Limited case (supra) which has also been considered and approved by the Apex Court in Vijay Industries Case (Supra), it is clear that whenever there is a contract to make payment of interest, mere payment of principal amount in a proceedings under Section 433 (e) and (f) would not put a stop to those proceedings and can be continued, even insofor as the interest amounts is concerned. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17.3. I answer point No.1 by holding that even on the payment of the principal amount the proceedings under Section 433 (e) and (f) of the Companies Act, 1956 can be continued on account of non-payment of interest, if the same is contractual, crystallised and/or admitted, if not it cannot be continued. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18.  Answer to point No.2: When can non-payment of interest said to be debt due and liable to be paid? </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18.1. Again as held by this Court in Jyothi Limited Case (Supra) and confirmed by the Apex Court in Vijay Industries Case (supra) the interest component can be regarded as a debt due and liable to be paid, that the said interest is a contractual interest. The contract envisages payment of such interest or if the same is determined in an appropriate proceedings by a competent court. Thus, in such cases interest also forms and constitutes debt within the meaning of Section 433 (e) and (f) of the Companies Act, 1956 and in the event of a company not paying the debt or is unable to pay the debt, the company could be wound-up for the said reasons</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">19.   Answer to point No.3: Whether in the present case the petitioners have made out any debt due and liable to be paid by the respondent and respondent not having paid, would power under Section 433 (e) and (f) be required to be exercised by this Court?</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19.1. In the present case though in the buyback agreement there is an interest clause quantified at 24% p.a. the notice which has been issued by the petitioners makes a demand of a sum of Rs.3,76,27,753/- without even making any reference to the interest component or quantification of the interest. The demand raised is for a composite amount of Rs.3,76,27,753/- with interest.  After the filing of the present proceedings, the petitioners have filed a memo dated 07.02.2015 claiming interest at 12% p.a. and the statement produced along with the said memo is a different calculation with a different amount due.  Thereafter an amendment was made to the petition introducing para 16B and in the said paragraph the calculation has been made of interest from the date on which amount has been paid by the respondent company, thus there is no calculation of interest for the previous period i.e., prior to issuance of notice. Thus, even though there is a contractual interest liable to be paid, the claim of the petitioners themselves is dehors the contact and contrary to the contact. The initial legal notice as stated above does not even refer to or distinguish the contractual interest. Thereafter the petitioners have reduced the claim of interest and subsequently have raised the claim of interest from the date of payment which is during the pendency of this proceedings. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19.3. In the present case there is no such ascertainment made nor is there any crystallized debt, the petitioners themselves are not clear as to what the principal amount is and what the interest amount is or even the rate of interest. The petitioners having received the principal amount and the interest amount not having been quantified or crystallized. I’am of the considered opinion that, in the present case the petitioners have not made out any debt due and liable to be paid by the respondents for exercise of powers under Section 433 (e) and (f) of the Companies Act, 1956. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. Answer to point No.4: What order?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>For all the aforesaid reasons, the petition stand dismissed.</b><o:p></o:p></p>', '84b17cb14658c0891f4405a44d542bfe.JPG', '61e88ce0277cd3b0b1636e262d923cbd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-04', 1, '', '', '2022-08-02 16:32:26', '2022-08-04 07:23:30'),
(2031, 'vFRZ8u6AvFjahB7ei7SeudGh5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'West Bengal Premises Tenancy Act. Municipal tax payable by tenant cannot be included within the expression ‘rent’ for the purpose of protection under the Act. Supreme Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Eih Limited Vs Nadia A Virji</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Civil Appeal 4797-4799 of 2022 decided on 1 August 2022</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Justice M.R. Shah and Justice B.V. Nagarathna. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The facts leading to the present appeals in a nutshell are as under: That by a Tenancy Agreement dated 6.5.1993, the appellant – original plaintiff – landlord inducted the respondent/defendant as tenant in respect of a showroom admeasuring 1700 sq. ft. on the ground floor of a prime location of Kolkata being the arcade of the Hotel Oberoi Grand at Premises No. 15/2, Jawaharlal Nehru Road, Kolkata. Under the Tenancy Agreement, the rent was fixed at Rs. 10,000/- per month. Under the Tenancy Agreement, the liability to pay the taxes including surcharge and water tax/fees was upon the respondent – tenant. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.1 The appellant – original plaintiff – landlord terminated the tenancy by issuing notice under Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as the ‘TP Act’). Upon expiry of the notice period, the appellant – original plaintiff – landlord filed a suit before the learned Single Judge (Original Side) of the Calcutta High Court being Civil Suit No. 354/2012, seeking eviction of the respondent – tenant from the tenanted premises. According to the appellant – original plaintiff, as the liability to pay the tax payable to the Calcutta Municipal Corporation was upon the respondent – tenant and in view of Section 5(8) of the Act 1997 r/w Section 3(f), the total rent payable by the tenant inclusive of monthly rent and taxes would exceed the ceiling limit of Rs.10,000/- per month specified in Section 3(f)(i) of the Act 1997 for commercial premises, hence the Act 1997 is not applicable and therefore the original plaintiff – landlord terminated the tenancy by issuing notice under Section 106 of the TP Act. The original plaintiff also prayed for the summary judgment. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.2 The original defendant – tenant after appearing in the suit filed an application before the learned Single Judge under Order 7 Rule 11 CPC for rejection of the plaint, inter alia, on the ground that the suit was barred by reasons of the provisions of the Act 1997 being applicable because the rent of the said premises was Rs. 10,000/- per month and the tenancy being for commercial purpose is not exempted under Section 3(f)(i) of the Act 1997. The learned Single Judge allowed the said application and rejected the plaint vide order dated 22.03.2016 by holding that the rent payable by the tenant is Rs. 10,000/- per month which is below the ceiling limit mentioned in Section 3(f)(i) of the Act 1997 and therefore the Act 1997 is applicable and therefore the suit under Section 106 of the TP Act is impliedly barred by the provisions of the Act 1997. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.4 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court and confirming the judgment and order passed by the learned Single Judge that as the rent payable by the tenant is Rs. 10,000/- per month (excluding the liability to pay the municipal taxes) and therefore the Act 1997 shall be applicable and therefore the suit under Section 106 of the TP Act would be impliedly barred, the original plaintiff – appellant – landlord has preferred the present appeals. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5.1 The short question which is posed for the consideration of this Court is, “whether, share of municipal tax due and payable by the tenant under Section 230 of the Act 1980 and Section 5(8) of the Act 1997 shall be included within the expression ‘rent’ or in other words, the share of municipal tax due and payable by the tenant can be said to be a part of the rent of the premises let out?” </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5.2 At the outset, it is required to be noted that in the present case, under the tenancy agreement under consideration the rent payable by the tenant would be Rs. 10,000/- per month. Over and above the rent, the tenant has also agreed to pay the municipal taxes payable to the Calcutta Municipal Corporation. However, it is required to be noted that the tenancy agreement does not provide that the parties have agreed that the rent would be inclusive of municipal taxes payable and that as and when such taxes are enhanced, rent would be proportionately raised. Under the tenancy agreement, the rent payable would be Rs. 10,000/- per month and the liability to pay municipal taxes is separate and distinct on the tenant. On a fair reading of Section 3(f) of the Act 1997, which provides that any premises let out for non-residential purpose, which carries more than ten thousand rupees as monthly rent, nothing contained in the West Bengal Premises Tenancy Act, 1997 shall apply. The word used is “monthly rent”. As observed hereinabove, the term “rent” is not defined.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 6. It is the case on behalf of the landlord that as under Section 5(8) of the Act 1997, every tenant is under an obligation to pay his share of municipal tax as an occupier of the premises in accordance with the provisions of the Kolkata Municipal Corporation Act, 1980 and as per Section 230 of the Act 1980, 50% of the municipal tax shall have to be paid by every tenant and as per Section 231 of the Act 1980 the same shall be recoverable as arrears of rent and as per the decision of this Court in the case of Calcutta Gujarati Education Society (supra) the arrears of municipal tax can be recovered as arrears of rent and therefore the share of municipal tax payable by the tenant will be part of the rent. Heavy reliance is placed on para 45 in the case of Calcutta Gujarati Education Society (supra) and the subsequent decision in the case of Popat and Kotecha Property (supra) </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. Now so far as reliance being placed upon the subsequent decision of this Court in the case of Popat and Kotecha Property (supra) is concerned, at the outset, it is required to be noted that in the said decision, para 45 of the decision in the case of Calcutta Gujarati Education Society (supra) has been considered and not para 46, reproduced hereinabove. Even on facts, the said decision is not applicable. In the said decision, under the agreement the parties agreed that the rent would include all municipal taxes payable and that as and when such taxes are enhanced rent should be proportionately raised. In the present case, under the tenancy agreement, the rent payable would be Rs. 10,000/- per month which does not include the municipal taxes payable. The liability to pay the taxes under the agreement would be over and above the amount of rent, i.e., Rs. 10,000/- per month. Therefore, on facts, the decision of this Court in the case of Popat and Kotecha Property (supra) is not applicable to the facts of the case on hand. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10. Now so far as reliance being placed upon Section 18 of the Act 1997 and the submission that under Section 18 of the Act 1997 the rent shall be automatically increased by revision of 5% every three years and therefore by giving the increase by revision of 5% every three years, the rent payable would be more than rupees ten thousand per month is concerned, the aforesaid contention has no substance. Section 18 of the Act 1997 shall be applicable in a case where the fair rent is determined and fixed by the Controller under Section 17 of the Act 1997. That is not the case here. Therefore, Section 18 of the Act 1997 is not applicable at all to the facts and circumstances of the case. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. In view of the above discussion and for the reasons stated above and as the monthly rent due and payable would be Rs. 10,000/- per month which cannot be said to be more than ten thousand rupees as monthly rent, the High Court has rightly observed and held that the Act 1997 shall be applicable and therefore the civil suit filed by invoking Section 106 of the TP Act is impliedly barred. Therefore, the High Court has rightly rejected the plaint in exercise of powers under Order 7 Rule 11 CPC. No interference of this Court is called for. Accordingly, the present appeals stand dismissed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>However, in the facts and circumstances of the case, there shall be no order as to costs.</b></font><br></p>', '3d4b1e257f1aec7cb11a2e9da2a58a5b.jpeg', '499dc48b347408b1c99a9b71c4119597.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-03', 1, '', '', '2022-08-02 16:38:19', '2022-08-03 08:23:23');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2032, 'JvKPzKheeO4eCxP1N5UhZ7N3o', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque bounce case. Merely being a Director of the company is not sufficient to make him liable. Person sought to be made liable should be in charge of and responsible for the conduct of the business of the company. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Sunita Palita and others Vs Panchami Stone Quarry.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Criminal Appeal 1105 of 2022 decided on 1 August 1, 2022</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Justice Indira Banerjee and Justice J.K. Maheshwari. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. In the petition of complaint, PSQ impleaded M/s MBL Infrastructure Limited, a public limited company, within the meaning of the Companies Act 2013 (hereinafter referred to as “the Accused Company”), as Accused No.1. One Mr. Anjanee Kumar Lakhotia, Managing Director of the Accused Company was impleaded as the Accused No.2 and the Appellants were impleaded as Accused Nos. 3, 4 and 5. The Appellant No.1 was the fourth accused, Appellant No.2 was the fifth accused and Appellant No.3 was the third accused. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. On 10th April 2017, PSQ deposited the cheque in its bank for encashment, but the cheque was dishonoured, with the endorsement ‘account closed’. On 3rd May 2017, PSQ received intimation of dishonour of the cheque from its banker. Thereafter, PSQ sent a demand notice dated 29th May 2017 by speed post, calling upon the Accused to make payment of the amount of the dishonoured cheque, as per the provisions of Section 138 of the NI Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12. Alleging that the Accused Company had not paid the amount of the dishonoured cheque, that is, Rs.1,71,08,512/- (Rupees One Crore, Seventy One Lakhs, Eight Thousand, Five Hundred and Twelve only) to PSQ within the time stipulated, PSQ filed the aforesaid complaint under Section 138 read with Section 141 of the NI Act, through its proprietor. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>30. As held in K.K. Ahuja v. V.K. Vora (supra) when the accused is the Managing Director or a Joint Managing Director of a company, it is not necessary to make an averment in the complaint that he is in charge of, and is responsible to the company for the conduct of the business of the company. This is because the prefix “Managing” to the word “Director” makes it clear that the Director was in charge of and responsible to the company, for the conduct of the business of the company. A Director or an Officer of the company who signed the cheque renders himself liable in case of dishonour. Other officers of a company can be made liable only under sub-section (2) of Section 141 of the NI Act by averring in the complaint, their position and duties in the company, and their role in regard to the issue and dishonour of the cheque, disclosing consent, connivance or negligence. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>33. It is stated that PSQ had availed the remedy under the IBC and filed its claim before the IRP, which now forms part of an Approved Resolution Plan of the Accused Company. PSQ would, therefore, be paid in terms of the Approved Resolution Plan. Mr. Luthra submitted that the Resolution Plan of the Accused Company had been upheld by the National Company Law Appellate Tribunal (NCLAT). All appeals against the Resolution Plan had been dismissed by the NCLAT. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>36. The High Court rightly held that when a complaint was filed against the Director of a company, a specific averment that such person was in charge of and responsible for the conduct of business of the company was an essential requirement of Section 141 of the NI Act. The High Court also rightly held that merely being a Director of the company is not sufficient to make the person liable under Section 141 of the NI Act. The requirement of Section 141 of the NI Act was that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company. This has to be averred as a fact. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>37. The High Court also rightly held that the Managing Director or Joint Managing Director would admittedly be in charge of the company and responsible to the company for the conduct of its business by virtue of the office they hold as Managing Director or Joint Manging Director. These persons are in charge of and responsible for the conduct of the business of the company and they get covered under Section 141 of the NI Act. A signatory of a cheque is clearly liable under Section 138/141 of the NI Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>38. The High Court, however, failed to appreciate that none of these Appellants were Managing Director or Joint Managing Director of the Accused Company. Nor were they signatories of the cheque which was dishonoured. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>39. The High Court proceeded to hold that, in construing a complaint, a hyper technical approach should not be adopted, to quash the same. The High Court observed rightly that the laudable object of preventing bouncing of cheques and sustaining the credibility of commercial transactions, resulting in enactment of Sections 138 and 141 of the NI Act has to be borne in mind. A complaint should also not be read with a pedantically hyper technical approach to deny relief under Section 482 of the Cr.P.C. to those impleaded as accused, who do not have any criminal liability in respect of the offence alleged in the complaint. As observed by the High Court, the provisions of Section 138/141 of the NI Act create a statutory presumption of dishonesty, against those covered by Section 138/141 of the NI Act and expose them to criminal liability, if payment is not made within the statutory period, even after issue of notice. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>40. The High Court further held that the power of quashing is required to be exercised sparingly. The High Court, in effect, found that even though, on perusal of the complaint, it appeared that the exact words used in Section 141 of the NI Act had not been used in the complaint, the essential pleadings were there in the complaint. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>42. A Director of a company who was not in charge or responsible for the conduct of the business of the company at the relevant time, will not be liable under those provisions. As held by this Court in, inter alia, S.M.S. Pharmaceuticals Ltd. (supra), the liability under Section 138/141 of the NI Act arises from being in charge of and responsible for the conduct of the business of the company at the relevant time when the offence was committed, and not on the basis of merely holding a designation or office in a company. It would be a travesty of justice to drag Directors, who may not even be connected with the issuance of a cheque or dishonour thereof, such as Director (Personnel), Director (Human Resources Development) etc. into criminal proceedings under the NI Act, only because of their designation. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>43. Liability depends on the role one plays in the affairs of a company and not on designation or status alone as held by this Court in S.M.S. Pharmaceuticals Ltd. (supra). The materials on record clearly show that these Appellants were independent, non-executive Directors of the company. As held by this Court in Pooja Ravinder Devidasani v. State of Maharashtra and Anr. (supra) a non-Executive Director is not involved in the day-to-day affairs of the company or in the running of its business. Such Director is in no way responsible for the day-to-day running of the Accused Company. Moreover, when a complaint is filed against a Director of the company, who is not the signatory of the dishonoured cheque, specific averments have to be made in the pleadings to substantiate the contention in the complaint, that such Director was in charge of and responsible for conduct of the business of the Company or the Company, unless such Director is the designated Managing Director or Joint Managing Director who would obviously be responsible for the company and/or its business and affairs. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>44. The High Court correctly observed that three categories of persons were covered by Section 141 of the NI Act – the company who committed the offence as alleged; everyone who was in-charge of or was responsible for the business of the company and any other person who was a Director or a Manager or a Secretary or Officer of the Company with whose connivance or due to whose neglect the company had committed the offence </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>45. Even though the High Court deprecated the adoption of a hyper technical approach in construing pleadings, to quash criminal proceedings, the High Court adopted a hyper technical approach in rejecting the application under Section 482 of the Cr.P.C., on a cursory reading of the formalistic pleadings in the complaint, endorsing the contents of Section 141 of the NI Act, without any particulars. What the High Court overlooked was, the contention of these Appellants that they were non-Executive Independent Directors of the Accused Company, based on unimpeachable materials on record. The High Court observed that in the petition it had specifically been averred that all the accused persons were responsible and liable for the whole business management of the Accused Company, and took the view that the averments in the complaint were sufficient to meet the requirements of Section 141 of the NI Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>47. In any event there could be no justification for not dispensing with the personal appearance of the Appellants, when the Company had entered appearance through an authorized officer. As held by this Court in Pepsi Foods Ltd. v. Special Judicial Magistrate and Ors. 5 summoning an accused person cannot be resorted to as a matter of course and the order must show application of mind. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>48. In our considered view, the High Court erred in law in not exercising its jurisdiction under Section 482 of the Cr.P.C in the facts and circumstances of this case to grant relief to the Appellants. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>49. For the reasons discussed above, the appeal is allowed.</b></font><br></p>', 'f5f511d0987a3b94bd222808abb0822e.jpeg', 'b0622ece7c04594db07c1b0cfaf40ead.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-03', 1, '', '', '2022-08-02 16:48:05', '2022-08-03 06:23:13'),
(2033, 'XWXEHhOrVMIRusO5AIToghnzX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘Arresting Officer Must Ascertain Identity of the person’. Karnataka High Court orders Rs. 5 lakhs compensation to man wrongly arrested. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ningaraju N Vs Official Liquidator of India Holiday Pvt Ltd.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Company Application 96 of 2022 decided on 7 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. This application has been filed for dropping the proceedings against Sri N.G.N. Raju S/o. Ningegowda on the ground that he is not the Ex-Director of the Company in liquidation as mentioned in CA.No.1382/2011. This Court in its earlier order dated 26.05.2022 dealt with the said issue and on verification it has been found that the applicant in C.A.No.96/2022 is not Raju N.G.N., who is the Ex-Director of the Company in liquidation. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. It is rather shocking that a person has been arrested without ascertaining whether he was the person who was required to be arrested and that the warrant had been issued against him. Though the arrestee had disputed that he was the person named in the warrant and the applicability of the warrant to him, his identification was not cross-checked and verified resulting an innocent person being arrested.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The Right to Life and Liberty Guaranteed under Article 21 of the Constitution of India is of paramount importance. By arresting a person whose arrest was not authorized there is a violation of the fundamental rights guaranteed under Article 21 of the Constitution of India. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. The only reason why the applicant had been arrested is that the name of his father was similar to the name of the person named in the warrant. I’am unable to comprehend as to how the name of the father being similar or even identical would have any role to play in the arrest, extrapolating the same logic if the arrest warrant has been issued for one brother, another brother or maybe even the sister could be arrested, merely, because the father name is identical.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. What is of primary importance is the identity of the person who is to be arrested and not any other aspect like the name of the father, though the same may have a corroborative role. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Whenever any warrant is issued bailable or non-bailable, it is but required for the arresting officer to ascertain the identity of the person proposed to be arrested and be satisfied that the person proposed to be arrested is the same person as against whom a warrant has been issued. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. In the present case though the arrestee had categorically stated that he was not the person named in the warrant, the arresting officer has not verified the same instead the arrestee has been arrested and produced before this Court, thereby causing harm and injury not only to the liberty of the arrestee but also to the reputation of the arrestee which are in violation of the fundamental rights guaranteed under Article 21 of the Constitution.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. If Guidelines or Standard Operating Procedure are already issued to cater to this situation, training in this regard to be provided to all arresting officers. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. If not issued the Director General of Police is directed to issue suitable Guidelines and/or Standard Operating Procedure as to what are the steps to be taken by the arresting officer before arresting a person including the verification of identity. The same to be issued within 4 weeks from the date of receipt of the copy of this order. Registrar (Judicial) is directed to forward a copy of this order to the Director General of Police, Government of Karnataka, immediately. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. In the present case, the arrestee having been put to loss of liberty as also loss of reputation, I’am of the considered opinion that the State would be liable to compensate the arrestee for the same. The compensation is fixed at Rs.5,00,000/- (Rupees 5 Lakhs only), the said payment to be made within a period of eight weeks from today. The State is at liberty to recover the same from the Police Officers who had arrested the applicant.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7ccf33475d9bb650ed8ec5e99a4b8fdf.JPG', '083382536076e86d1f04a8fba3b14793.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-03', 1, '', '', '2022-08-02 17:29:19', '2022-08-03 10:28:20'),
(2034, '4wZc659KoqNzFkvG2HcH54RW3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Ordinarily, in civilized jurisdictions functionaries of the constitutional bodies are not subjected to subpoena\'\'. Karnataka High Court, while setting aside summons issued to the Election Commissioner of India in election petition. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Election Commission of India Vs Ravishivappa Padasalagi and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>OSA 100001 of 20222 decided on 29 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit and Justice P. Krishna Bhat.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. BRIEF FACTS OF THE CASE:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (a)<span style=\"white-space: pre;\">	</span>The general elections to constitute 15th Karnataka Legislative Assembly were held in May 2018. However the Speaker had disqualified 17 members of Legislative Assembly vide Orders dated 25.07.2019 & 28.07.2019. This was put in challenge before the Hon’ble Supreme Court in W.P. (C) No.922/2019 & connected cases. To fill the vacancies accruing because of aforesaid disqualification, the appellant ECI vide Press Note dated 21.09.2019 had announced the schedule for Bye-Elections in respect of 15 Constituencies. This was followed by the Election Notification dated 23.09.2019. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b)<span style=\"white-space: pre;\">	</span>The Apex Court whilst examining the legality of the Disqualification Orders is said to have orally observed that the postponement of the Bye-Elections was desirable till after the final orders are passed on the pending challenge.  This was on 26.09.2019. On 27.09.2019, the extension Notification was issued by the appellant-ECI by rescheduling the time lines prescribed under the aforesaid Election Notification dated 23.09.2019. The Apex Court vide Order dated 13.11.2019 dismissed W.P.No.992/2019 & connected matters and thereby upheld Speaker’s Orders that had disqualified 17 MLAs, however curtailing the duration of their disqualification.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (c)<span style=\"white-space: pre;\">	</span>The appellant-ECI conducted the elections on 09.12.2019 in terms of amended notification dated 27.09.2019. The 2nd respondent herein was elected to the Legislative Assembly from 03-Athani Assembly Constituency. His election has been challenged by the 1st respondent in the subject Election Petition. One of the issues framed in the E.P. relates to power of the ECI to postpone the elections, once the same were notified. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Having heard the learned counsel for the parties and having perused the appeal papers, we are inclined to grant indulgence in the matter for the following reasons:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>A.<span style=\"white-space:pre\">	</span>AS TO MAINTAINABILITY OF INTRA-COURT APPEAL:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) The entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. Concepts familiar to common law and equity must remain strangers to Election Law unless statutorily embodied. An election petition is a strict statutory proceeding. The legal position emerging from a catena of decisions of the Apex Court is that outside the statutory provisions, there is no right to dispute an election.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) Section 80 of the 1951 Act provides that an election inter alia to the State Legislature can be called in question only by filing an election petition in accordance with its provisions.  Such a petition has to be presented to the High Court on one or more of the grounds specified in sub-section (1) of Sec.100 & Sec.101 of the said Act within 45 days reckoned from the date of election of the Returned Candidate.   In  HARI  SHANKER  JAIN  vs.  SONIA  GANDHI, (2001) 8 SCC 233, the Apex Court observed that the designated Election Judge functions as a High Court and not as a Special Tribunal or as a Special Court or as persona designata. When power to hear a dispute under a statute is conferred on the High Court then the dispute has to be determined according to rules of practice and procedure of this Court and in accordance with the provisions of the Charter under which that Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction vide NATIONAL SEWING THREAD CO. LTD. Vs. JAMES CHADWAICK AND BROS LTD., AIR 1953 SC 357.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv) The person subpoenaed has no discretion to disobey the requisition. Whether subpoena of the kind falls within the term ‘order’ employed in Section 4 of the 1961 Act, needs to be examined, from that view of the matter. In matters like this, the word ‘order’ employed in the above provision has to be liberally construed consistent with the requirement of doing justice to the aggrieved.  An argument to the contrary, would defeat the very object of such a provision the same proving to be only a dead letter of law in black print and therefore, cannot be countenanced.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>B.<span style=\"white-space:pre\">	</span>AS TO LEAVE TO APPEAL:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) The appellant happens to be the Election Commission of India which is a creature of the Constitution vide Article 324. The Apex Court in JYOTI BASU vs. DEBI GOSHAL (1982) 1 SCC 691 has held that the election disputes are not cases at common law or equity and the proceedings are conducted in a special jurisdiction created by statute and therefore, persons other than who are contemplated under Section 82 of the 1951 Act cannot be joined as parties. There is a catena of decisions wherein arraying of the Election Commission as a party to the election disputes is deprecated by the Apex Court. Therefore, the Commission has justifiably sought for leave to file this appeal, it being not a party to the E.P. Denial of leave would cause a great injustice to the Commission and enormous hardship to the Ex-Chief Election Commissioner i.e., against whom subpoena has been issued. Therefore, leave needs to be and accordingly, is granted in terms of subject application accompanying the appeal.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>C.<span style=\"white-space:pre\">	</span>AS TO WHETHER CHIEF ELECTION COMMISSIONER OR EX-CHIEF ELECTION COMMISSIONER CAN BE CALLED AS WITNESS:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (i) As already mentioned above, an election petition is tried by the High Courts substantially in accordance with the provisions of CPC, 1908 vide Section 87(1) and the provisions of the Indian Evidence Act, 1872 are deemed to apply to these proceedings vide 87(2) of the 1951 Act. After pleadings are completed, issues have been framed in the EP; additional issue relating to validity of postponement of the election is also there.  Section 5 of the 1872 Act deals with the right to produce evidence, in any suit or proceedings, relating to the existence of non-existence of every fact in issue, and also to prove such other facts which may be declared relevant to the fact in issue, by virtue of the provisions contained in sections 6 to 55. The object of this section is to restrict the investigation made by Courts within the bounds prescribed by general convenience.  Of no fact can evidence be given unless it be either a fact in issue or one declared under other sections. Thus, evidence of all collateral facts, which are incapable of affording any reasonable presumption as to the principal matters in dispute, is precluded from production to save public time. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) The subject application for subpoena has been moved by the contesting respondent herein in the light of additional issue. What were the facts & circumstances that lead to issuance of the notification postponing the elections cannot be the subject matter of oral evidence of the Commissioners of the Election Commission of India which is a multi-member body, and which takes institutional decisions inter alia under the provisions of the Constitution, the RP Act, 1950 & RP Act, 1951. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii) Ordinarily, in civilized jurisdictions functionaries of the constitutional bodies are not subjected to subpoena. Since they have to act and take significant decisions in the discharge of duties fearlessly. Otherwise, they run the fear of being called as witnesses and that may push them to defensive mode affecting public interest. The circumstances that resulted into issuance of the subject notification has to be gathered from the official records of the Commission. A very strong case has to be made out for summoning the members or ex-members of constitutional bodies. The reason as to why the Election Commission of India cannot be made a party to the election petitions gives sufficient indication as to why its members or ex-members cannot be summoned as witnesses.  As already mentioned above, the proviso to Section 87 of the 1951 Act has vested discretion in the High Court hearing the election petitions in this respect. A perusal of the records drives us to a conclusion that there is absolutely no justification for the contesting respondent herein for seeking subpoena against the Ex-Chief Election Commissioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv) It hardly needs to be stated that subpoening an official as witness is one thing and summoning of official records, is another. In the former, the exercise of power is circumscribed depending upon the constitutional status and function of the person concerned and in the latter, it is not. It is all a matter of discretion and prudence of the Court. Of course, any discretion has to be exercised in accordance with the rules of reason & justice, said Lord Halsbury more than a century ago vide SHARP v. WAKEFIELD (1891 AC 173). Constitutional functionaries or ex-functionaries cannot be summoned as witnesses just for askance. The contention that these functionaries do not figure in the “Exemption Class” earmarked by CPC is too feeble a ground for issuing subpoena to them.  Ordinarily the provisions of law that carve out an “Exempted Class of Subpoena” do not intend to make such class exhaustive in the sense that all those de hors the class can be summoned as witness at askance. In matters like these a host of factors figure for consideration.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (v) The above having been said, we hasten to add that it is always open to parties to the election petition to seek an order at the hands of learned judge trying the election dispute to summon the records or copies thereof even from the Election Commission of India, by making out a case therefor. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In the above circumstances, this appeal succeeds; the impugned  order  of  subpoena  qua  the  Ex-Chief  Election Commissioner, i.e., Sri Sunil Arora is set at naught, costs having been made easy.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9ffe475b9a935fa2d71f6b53b2c7a903.jpeg', '9e5db4371b6a4286c4766ef690c0f029.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-11', 1, '', '', '2022-08-03 16:38:58', '2022-08-11 15:20:22'),
(2052, 'LxXFWBAdCdYgW1f3qoD4zKqA2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Rejection of tenancy claim under the Karnataka (Personal & Miscellaneous) Inams Abolition Act 1954 will not bar claim of tenancy under the Karnataka Land Reforms Act 1961. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pillamma and others Vs M. Ramaiah Reddy through LRS and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 10299 of 2011 decided on 8 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ajay Rastogi and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. The instant appeal is directed against the judgment dated 15th September, 2008 passed by the High Court of Karnataka at Bangalore affirming the finding recorded by the Land Tribunal, Anekal, in conferring occupancy rights in respect of the land bearing Sy. No. 184 to an extent of 10 acres 34 guntas and Survey No. 17 to an extent of 1 acre 12 guntas of Halasahalli Village, Anekal Taluk, in favour of the first respondent.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. Brief facts relevant for the purpose of this appeal are that first respondent had filed an application in Form No. 7 on 3rd December, 1974 under Rule 19(1) of Karnataka Land Reforms Rules requesting for registration of occupancy rights in his favour under Section 45(A) of the Karnataka Land Reforms Act, 1961(hereinafter referred to as the “Act 1961”).</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. The case of the first respondent was that lands measuring Sy. No. 184, measuring 10 acres and 34 guntas and Sy. No. 17, measuring 01 acre 12 guntas both situated at Halasahally, Thippasandra Village were vested with the Government as on 1st March, 1974 in terms of Section 44 of the Act, 1961 and he being the tenant in respect of the aforesaid lands was entitled to be registered as an occupant of these lands under Section 45 of the Act 1961.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10. Taking into consideration the rival claims of the parties, the Land Tribunal recorded a finding that on 1st March 1974, i.e., the vesting day, the subject land was in possession of the first respondent and his father and that was the admission of the appellants in the earlier proceedings initiated under the Act 1954(O.S. No. 210 of 1967) and later in subsequent suit filed by the appellants in O.S. No. 1054 of 1974 on the file of the Addl. Second Munsiff at Bangalore and was persuaded that the respondent’s father was in possession as on 1st March, 1974 and has lawfully cultivated the subject land in question and became a deemed tenant as contemplated under Section 4 of the Act, 1961 and finally disposed of the application after assigning detailed and cogent reasons under its Order dated 16th December 2002</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17. Under the scheme of the Act 1954, all lands in Inam villages vested in the State Government. But under the Act 1961, not all agricultural lands vest in the State; only lands held by or in possession of tenants immediately prior to 1st March, 1974 vest in the State Government. The claim of the tenant or tenants for registration of occupancy rights under the Act, 1961 has to be decided with reference to the date of vesting under Section 44, viz., 1 st March 1974. Under the Act 1954, the rights of the Inamdars and tenants were decided with reference to the date of vesting, viz, 1 st February, 1959 under the said Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18. The scope and purport of the two Acts being different, termination of the proceedings under the Act, 1954 in regard to grant of occupancy rights cannot bar an enquiry to establish the claim under Section 45 of the Act, 1961 by the Land Tribunal. What the Tribunal, under the Act, has to inquire into, is whether the lands claimed by the applicant before it, have vested in the State Government under Section 44 of the Act 1961. For that purpose, it has to decide whether the lands were held by or in the possession of any tenant immediately prior to 1st March, 1974(the date of vesting).</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19. This is what has been examined by the Tribunal in extenso and thereafter finding was recorded that the first respondent was in possession and was cultivating the subject land in question immediately prior to 1st March, 1974 (the vesting date) under Section 44 of the Act, 1961 and accordingly declared to confer the occupancy rights to the first respondent under its order dated 16th December 2002. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20. The appellants challenged the finding of the Tribunal before the High Court in writ petition under Article 226 of the Constitution and further in writ appeal and after due deliberation and revisiting the records, both the Courts affirmed the Order of the Land Tribunal upholding occupancy rights to the first respondent.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>21. After we have heard learned counsel for the parties, find no manifest error been committed in the findings recorded by the Tribunal in conferring the occupancy rights in favour of the first respondent and needs no further interference of this Court.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>22. Consequently, the appeal fails and accordingly dismissed. No costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23. Pending application(s), if any, shall stand disposed of.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '08dc3b2060c56940e0e3098566c66e0a.jpg', '11ae29e641ca0246e32c05bcdafe05e8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-12', 1, '', '', '2022-08-09 17:41:14', '2022-08-12 12:51:14');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2053, 'gewKZWg7R17drJn6EOm6NvZyD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque bounce case. Person being director of a company will not make him liable for prosecution unless it is shown that he is in-charge of or responsible for conduct of the company business. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Javahar Lal Vs OVT India Pvt. Limited and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL. MC 1255 of 2020 decided on 8 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Asha Menon.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The petitions are disposed of through this common order as they\r\nare between the same parties and in respect of connected complaint cases\r\nfiled under Section 138 read with Section 141 of the Negotiable\r\nInstruments Act, 1881(for short ‘N.I. Act’) for dishonor of cheques issued\r\nin respect of the same transaction.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Since Section 141 of the N.I. Act raises a legal fiction creating\r\nvicarious liability, strict compliance with statutory requirements was\r\ncalled for. A joint liability to pay a debt will not be sufficient to make a\r\nperson vicariously liable under Section 148 N.I. Act as observed in Alka\r\nKhandu Avhad vs. Amar Syamprasad Mishra & Anr. (2021) 4 SCC 675.\r\nA civil liability cannot be confused with the criminal liability under\r\nSection 138 read with Section 141 N.I. Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">7. S.M.S. Pharmaceuticals Ltd. versus Neeta Bhalla & Anr. (2005)\r\n8 SCC 89, followed in several cases thereafter, including\r\nRamrajsingh(supra) leaves no manner of doubt that the complaint must\r\ncontain specific averments explaining the role of the Director, particularly\r\nthat at the time of the commission of the offence, he was in-charge of and\r\nresponsible for the conduct of the business of the company to attach\r\nvicarious liability upon a Director. Mere designation as Director will not </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">suffice.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. While it is correct that there can be no deemed liability of\r\nDirectors, there is a simultaneous requirement that when the petitioner\r\nseeks the quashing of a complaint, there is an onus on the petitioner to\r\nfurnish some kind of sterling and incontrovertible material or other\r\nreasonable circumstances to substantiate his contention that he was not\r\nin-charge of and responsible for the conduct of the business of the\r\naccused company. A complaint cannot be quashed merely on the ground\r\nthat no particulars are given in the complaint about his role if the basic\r\naverment was sufficient to make out a case in the complaint. (Gunmala\r\nSales Pvt. Ltd vs. Anu Mehta and Ors (2015) 1 SCC 103)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. There are averments that both the Directors had acted on behalf of\r\nthe accused No.1 for the manufacture and supply by the\r\ncomplainant/respondent of 12,000 STBs Units at a particular price. The\r\ncomplainant has averred that it had entered into an MoU on 14th June,\r\n2018 and had executed to Tripartite Agreement dated 18th September,\r\n2018 and 2nd December, 2018 with the accused No.1 in this regard,\r\nwhereafter the post dated cheques drawn in favour of the complainant\r\nwere issued. The complaint further sets out how when the accused No.1\r\ncompany failed to make timely payments, a demand notice was\r\nspecifically issued for the payment of outstanding dues to the tune of\r\nRs.27,13,10,296/-. The 15 cheques were presented which were then\r\ndishonored leading to the filing of the complaints. The dishonour of the\r\ncheques was brought to the notice of accused No.2 and 3 but no payments\r\nwere made by any of the accused. Then the complaints were filed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. It would be useful to turn to the documents at this juncture. This\r\nCourt had permitted the respondent to place on record the DIR-12. A\r\nperusal of this document would show that the petitioner was appointed <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Additional Director of the accused company on 3\r\nrd April, 2019. This\r\nwould mean that the petitioner was indeed the Director of the company at\r\nthe time when the offence was committed. The petitioner has not placed\r\non record any document of sterling quality to show that he was either not\r\na Director of the accused company or had been in a non-executive role.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>13. But again, that will not suffice. The MoU, the Tripartite and Sale\r\nAgreements placed on the record as P-2 and P-3 dated 18th September,\r\n2018 and 2nd December, 2018 have been executed between M/s Pantel\r\nTechnologies Private Ltd., M/s OVT India Pvt. Ltd. and Independent TV\r\nLtd. The petitioner claims that he has not signed these agreements, which\r\nis substantiated from the very documents. The first Tripartite Agreement\r\nhas been signed by Mr. Vijender Singh for and on behalf of. M/s Pantel\r\nTechnologies Private Ltd., and the second agreement has been signed by\r\nMr. Vivek Prakash i.e., accused No.3 in the complaint. In other words,\r\nthe document relied upon by the respondents does not reflect the fact that\r\nthe petitioner while being a Director of the accused company was\r\nparticipating in the conduct of the business by entering into trade\r\nagreements on behalf of the company. The averments do not find support\r\nfrom the very documents relied upon by the complainant/respondent.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">14. Thus the petitioner is not responsible for and in-charge of the\r\nbusiness of the accused company. It is not pleaded in the complaints that\r\nthe dishonoured cheques had been signed by the petitioner. Nor has it\r\nbeen so urged before this Court. Thus, the averments made in the\r\ncomplaints even if be fully accepted, the documents annexed thereto ex\r\nfacie show that the petitioner though a Director of the accused company\r\nwas not in-charge of or responsible for the conduct of its business. Thus,</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">an essential ingredient of Section 141 N.I. Act based on which vicarious\r\nliability could be attached to the petitioner is missing.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>15. The position of law being what it, is no two views can be taken in\r\nthe present matters. The complaint cases qua the petitioner are required to\r\nbe and are quashed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2d53754eec9c96e0940b5fe958269d0b.jpg', '2a26d44bf89f001d65e9fbc58f479e64.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-12', 1, '', '', '2022-08-09 18:12:37', '2022-08-12 06:03:22'),
(2036, '3qQFSqmguEefwPkheKteQcu9k', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Ratification presupposes knowledge of the act sought to be ratified. Assignment of tenancy by tenant cannot be said to be ratified if the assignment is not within the knowledge of the landlord. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shabbir Mohammad Sayed Vs Noor Jehan Mushter Shaikh and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5039-5040 of 2022 decided on 2 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.M Joseph and Justice Hrishikesh Roy.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. By the impugned order, the High Court in a revision\r\npetition filed by the appellant has upheld the order\r\npassed by the Appellate Bench of the Court of Small\r\nCauses at Bombay which in turn affirmed the order\r\npassed in Execution Application No.386/2016 that is\r\nOrder dated 16.11.2016, rejecting the application filed\r\nby the appellant under Order XXI Rule 97 of the Code\r\nof Civil Procedure. The application for recall has been </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">rejected by the order which is also impugned. The\r\nfirst respondent filed a civil suit against respondent\r\nNos.2-4. Respondent Nos.2-4 are, in other words,\r\ndefendants 1, 2 and 3 in the suit. The claim of the\r\nfirst respondent in the suit was that defendant Nos. 1\r\nand 2 were tenants of the property in question who were\r\nready to transfer their tenancy rights on the agreed\r\nconsideration of Rs. 85,000/- which was paid to them\r\nby the first respondent. The parties are referred to\r\nby their status in the Trial Court. The matter was\r\nbeing delayed on the basis of the property being\r\nillegally sublet to two persons. The plaintiff is\r\nalleged to have contacted the landlord namely defendant\r\nNo.3. The 3\r\nrd defendant transferred tenancy rights by\r\nrent receipt dated 01.12.2006. Possession was not\r\nhanded over. PW2, the 3rd defendant, was examined where\r\nhe admitted the letters dated 03.1.2004 and 19.05.2007.\r\nThe Trial Court dismissed the suit by Judgment dated\r\n09.04.2013. The plaintiff appealed the judgment by\r\nfiling Appeal No.23 of 2013. The Appellate Court\r\ndecreed the suit</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. It is the case of the appellant that the tenant\r\nwho was actually in possession of the property assigned\r\nhis rights in favour of the appellant by an agreement\r\ndated 24th January 2014. The appellant claims ignorance\r\nof the litigation.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. In other words, one Akhtar Habibullah Shaikh\r\nclaiming to be the lawful tenant of the premises\r\ntransferred his rights in favour of the appellant upon <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">receiving of ‘total cost and consideration’ of\r\nRs.9,40,000. What is more important is the 3rd defendant\r\n(landlord) by agreement of the same date i.e. 24th\r\nJanuary 2014 assigned leasehold right in favour of the\r\nappellant. The appellant came by possession of the\r\npremises. When he came to know of the decree obtained\r\nby the plaintiff and it being put to execution, he\r\nfiled application purporting to be under Order 21 Rule\r\n97 of the Code of Civil Procedure. It was this\r\napplication which was dismissed by the Execution Court,\r\nthe Appellate Court and the High Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. Thus, the law giver has provided that,\r\nnotwithstanding, the aforesaid provision it will not\r\nbe lawful for a tenant to sublet or to give on license\r\nthe whole or any part of the premises let to him or to\r\nassign or transfer in any other manner his interest <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">therein. This in turn is, however, made subject to any\r\ncontract to the contrary. In other words, while under\r\nthe general law, subject to there being no contract to\r\nthe contrary, a tenant can assign, sublease or mortgage\r\nhis rights as lessee, on the other hand, in regard to\r\na tenancy governed by the Act, the ordinary rule is\r\nthat a tenant cannot sublet, give on licence or assign\r\nor transfer in any other manner. This is made subject\r\nto a contract to the contrary. The assignment relied\r\nupon by the appellant namely by alleged lessee on\r\n24.01.2014 would be illegal on the face of it unless a\r\ncontract to the contrary is established. It is in this\r\nregard that learned counsel for the appellant would\r\ndraw support from the action of the admitted landlord\r\nnamely, the defendant no.3 who has purported to enter\r\ninto the assignment in favour of the appellant on the\r\nvery same day. In this regard, our attention is drawn\r\nto the Judgment of the full bench of the Bombay High\r\nCourt.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. It is the case of the appellant that the premises\r\nin dispute is located within the scope of the amended\r\nlaw. In view of the same, it is contended that the bar\r\nof Section 52 will not apply. When questioned as to\r\nwhether the appellant had a case that the plaintiff had\r\nnot given a notice and got it registered under Section\r\n52, the answer is that the plaintiff does not have a\r\ncase of having given any notice. It is actually a\r\nquestion of fact whether the premises is located in the\r\narea covered by the Amendment to Section 52. It is\r\nfurther a question of fact as to whether a notice was\r\ngiven.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. As regards the lease not being registered, the\r\ncontention of the appellant is premised on Section 55\r\nof the Tenancy Act. In other words, it is contended\r\nthat Section 55(2) of the Act clearly places the\r\nresponsibility of getting the lease registered on the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">landlord. The failure of the landlord to get the lease\r\nregistered would entitle the tenant to establish the\r\ntenancy with the document even if it is not registered.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. In the Indian Contract Act, 1872, Chapter X deals\r\nwith Agency. In Chapter X, Sections 196 to 200 provide\r\nfor ratification. Apparently, the Sections embody\r\ngeneral principles relating to ratification and we can\r\nsafely apply the principles embodied in the Sections\r\nessentially dealing with relationship between a\r\nPrincipal and his Agent.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. Thus, an assignment by the tenant can be ratified\r\nby the landlord. In this case however there is no\r\nratification in the alleged agreement executed by the\r\n3\r\nrd defendant landlord. He does not even refer to the\r\nalleged agreement executed by the tenant in favour of\r\nthe appellant. Ratification is an act which presupposes\r\nknowledge of the act of the person whose act is sought\r\nto be ratified. A perusal of the alleged agreement\r\nexecuted by the landlord would reveal that it makes no\r\nreference to the alleged agreement executed by the\r\ntenant in favour of the appellant. The third defendant <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">had proceeded to allegedly execute the agreement\r\npurporting to create interest in his own right.\r\nTherefore, we are of the view that even proceeding on\r\nthe basis of the principle laid down by the full bench\r\nof the High Court of Bombay, in the facts of this case,\r\nthere is no ratification. Sans any ratification and in\r\nthe absence of any contract to the contrary within the\r\nmeaning of Section 26, the alleged transfer by the\r\n‘lawful tenant’ cannot pass muster.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. As far as the case based on the alleged Tenancy\r\nAgreement dated 24.01.2014 between the third respondent\r\nand the appellant, we may notice certain features. As\r\nalready noticed, agreement by the so-called tenant in\r\nfavour of the appellant was also executed on the same\r\nday. In the Agreement executed by the tenant on\r\n24.01.2014, the tenant states that he is the lawful\r\ntenant and that he is staying in the said premises and\r\nthe tenancy is created in consideration of\r\nRs.9,40,000/- being paid. In Clause (3) of the\r\nAgreement, the tenant has purported to hand over vacant\r\npossession of the premises to the appellant. In fact,\r\nit is stated that the assignment will be “forever”. In <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the alleged tenancy agreement between the third\r\nrespondent and the appellant executed allegedly on the\r\nsame day it is recited that the premises is in the\r\nactual physical possession of the landlord and on a\r\nconsideration of Rs.175/- per month, tenancy was\r\ncreated in his favour. The case of the appellant which\r\nis based essentially on the appellant having paid\r\nRs.9,40,000/- to the ‘lawful’ tenant having found to\r\nbe untenable being illegal as violative of Section 26\r\nof the Act is in direct conflict with the case set up\r\nby the appellant regarding the tenancy with the third\r\nrespondent. We have already found that the case of the\r\nlandlord having ratified the tenancy of the appellant\r\nwith the tenant cannot stand scrutiny of the Court.\r\nThe acceptance of the case by the appellant involves\r\nharmonizing of an irreconcilable contradiction as\r\nregards the principal recital, namely, the case as to\r\nthe emanation of possession. If the case of the\r\nappellant is accepted it is the tenant who was in\r\npossession and who handed it over having received a sum\r\nof Rs.9,40,000/- which is essentially the case set up\r\nin the Execution Court. Noticing no doubt, that the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">documents have not yet been proved and taking the\r\ndocuments on their face value, yet the conclusion is\r\ninevitable that the case set up by the appellant on the\r\nbasis that the landlord was in possession is in the\r\nteeth of agreement of the same day with the tenant who\r\nclaims that he was in possession and it does not appeal\r\nto us as anything but incongruous to say the least. In\r\nfact, in his application, before the Execution Court\r\nthe specific case set up by the appellant is that he\r\nwas put in possession by the alleged lawful monthly\r\ntenant. The case set up by the appellant based on the\r\ntenancy agreement by the landlord cannot be acted upon.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">26. The matter can be looked at from a different\r\nperspective as well. The appellant lays store by a\r\ntenancy or assignment by the ‘lawful tenant’ on\r\n24.01.2014. This involves the assumption that the\r\ntenancy in favour of the lawful tenant was intact. If\r\nso, how can the landlord create a tenancy in favour of\r\nthe appellant without extinguishing the existing\r\ntenancy with the ‘lawful tenant’? The case of the\r\nappellant defies both logic and is legally untenable.\r\nIt becomes unnecessary to even explore the argument of</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the appellant that the suit being collusive, the courts\r\nquery as to the impact of the transfer in favour of the\r\nappellant being later in point of time must stand\r\noverwhelmed would stand answered.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>27. We would therefore think that the appellant has\r\nnot made out a case for interfering with the impugned\r\njudgments. The appeals are dismissed. No order as to\r\ncosts.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5de34f60c46097e3bc5e01aff15ac8f0.jpg', 'a4de388233f1e2354f99c155687fb44f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-10', 1, '', '', '2022-08-03 17:54:20', '2022-08-10 10:18:36'),
(4587, 'NhjVrdErPmqg1Fccc0KCAIqLv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Limitation Act. Suit for possession based on title can be non-suited only if defendant establishes adverse possession. When adverse possession is not proved, suit cannot be dismissed on the ground of limitation. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Revanna Thr LRS and others Vs A. Ramaiah Thr LRS and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R.F.A 806 of 2006 decided on 8 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sachin Shankar Magadum.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The captioned Regular First Appeal is filed by the legal representatives of deceased plaintiff questioning the judgment and decree passed in O.S.No.6341/1993 wherein suit filed by the plaintiff in respect of 27 guntas in Sy.No.380/2 is dismissed on the ground that the relief claimed is barred by limitation.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The facts leading to the case are as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The original plaintiff Revanna filed a suit seeking relief of declaration to declare that he is the absolute owner in respect <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of suit schedule property bearing Sy.No.380/2 measuring 2 acres 14 guntas and sought for consequential relief of injunction and in the alternative prayed for delivery of encroached portion of 27 guntas which is the subject matter of the suit.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. Heard learned Senior Counsel appearing for the plaintiffs and learned Senior Counsel appearing for the defendants. Perused the pleadings, oral and documentary evidence. The following points would arise for consideration:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span lang=\"EN-US\">1) Whether the Trial Court erred in dismissing the suit by answering issue No.5 in the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">affirmative by holding that the suit is barred by limitation?</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2) Whether plaintiff has made out a case to admit the additional evidence on record?</span><span style=\"font-size: 12pt;\"> </span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Re: Point No.2:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. By way of additional evidence, the plaintiffs have produced the re-grant order in favour of defendants granting 2 acres 14 guntas by order dated 27.12.1964. The said application is not at all resisted by the defendants. On the contrary, learned Senior Counsel appearing for defendants submits that he has no objection to admit the additional evidence on record. In the light of submission made by learned Senior Counsel appearing for defendants, this Court is of the view that the additional evidence has to be taken on record in the interest of justice. The additional evidence is very much essential for effective adjudication of the claim and rival claim made by the parties to the suit. Accordingly, I.A.No.1/2019 is allowed and the re-grant in favour of defendants in Sy.No.380/2 measuring 2 acres 14 guntas is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">taken on record. Accordingly, point No.2 is answered in the affirmative.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Re: Point No.1:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. In the background of the above factual matrix, this Court has to examine whether the Trial Court was justified in dismissing the suit by holding that suit is barred by limitation. The question that needs to be examined is as to whether learned Judge having answered issue No.4 in the negative was justified in non-suiting the plaintiffs by holding that suit is barred by limitation by invoking Section 27 of the Limitation Act. In the present case on hand, the learned Judge has held <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that defendants have failed to prove that they have perfected their title. Having answered issue No.4 in the negative, this Court has to examine whether learned Judge was justified in dismissing the suit as barred by limitation by invoking Section 27 of the Limitation Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>25. Before I proceed, it would be useful for this Court to examine the principles laid down by the Hon\'ble Apex Court in the case of Indira vs. Arumugam (supra). The Apex Court while examining Article 65 of Limitation Act has held that once title is established, unless defendant proves adverse possession, plaintiff cannot be non-suited. It would be useful for this Court to cull out paragraphs 4 and 5 which reads as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\"4. The aforesaid reasoning of the learned Judge, with respect, cannot be sustained as it proceeds on the assumption as if old Article 142 of the earlier Limitation Act was in force wherein the plaintiff who based his case on title had to prove not only title but also possession within 12 years of the date of the suit. The said provision of law has undergone a</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">metamorphic sea change as we find under the Limitation Act, 1963 Article 65 which reads as under: </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">65. For possession of immovable property or any interest therein based on title. Twelve years When the possession of the defendant becomes adverse to the plaintiff.</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>5. It is, therefore, obvious that when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. Unfortunately, this aspect of the matter was missed by the learned Judge and, therefore, the entire reasoning for disposing of the second appeal has got vitiated. Only on that short ground and without expressing any opinion on the merits of the question of law framed by the learned Judge for disposing of the second appeal, this appeal is allowed. The impugned decision rendered is set aside and the second appeal is restored to the file of the High Court with a request to proceed further with the hearing of the appeal with respect to the substantial question aforementioned in accordance with law. No costs.\"</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. If the principles laid down by the Hon\'ble Apex Court in the aforesaid judgment is meticulously examined, this Court is of the view that a suit for possession based on title can be non-suited only if defendant succeeds in establishing that he has perfected his title by way of adverse possession. Therefore, it is more than a trite that in a suit for possession based on title, the entire burden is on the defendant to prove that he has perfected his title by way of adverse possession. Section 27 of Limitation Act would come into play only if Article 65 of the Limitation act is applicable to the facts of the case. Thereby it necessarily means that only if defendant succeeds in proving that he has perfected his title by way of adverse possession, the right, if any, of a true owner stands extinguished under Section 27 of Limitation Act. Therefore, it is only in those cases where plaintiff does not take any action for recovery of possession of land within a period of 12 years as provided under Article 65 in Schedule I of Limitation Act, 1963, his rights gets extinguished and the land is left in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">abeyance. Therefore, to bring in the application of Section 27, defendant has to establish that he has perfected his title by way of adverse possession. The law of adverse possession based upon the principle that a land cannot be left in abeyance for a long time.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. The underlining principle governing the doctrine of adverse possession is when rightful owner has lost his rights, the person in adverse possession becomes in rightful possession and absolute owner of land under Article 65. But Article 65 will come into play and the limitation period of 12 years starts only when possession has become adverse to the true owner and not otherwise. If defendants have failed to establish that they have perfected their title by way of adverse possession, Article 65 is not at all applicable. Consequently, there is no extinguishment of right and title of plaintiff over the suit schedule property under Section 27 of Limitation Act. If there is no extinguishment of right under Section 27 of Limitation Act, the provisions of Article 65 are not at all <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">applicable. If the possession is based on title and if the provisions of Article 65 are not applicable, plaintiff is entitled to seek possession in respect of encroached portion of 27 guntas which is in possession of the defendants.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. The material on record vide Ex.P-34 (which is settlement Akarbandh) coupled with Ex.P-35 which is a certified copy of the sketch would clearly establish that defendants have encroached 27 guntas and they are in possession without any semblance of right and title. Therefore, it is in this background, this Court is of the view that the learned Judge having answered issue No.4 in the negative by holding that defendants have failed to establish their title by way of adverse possession erred in dismissing the suit as barred by limitation. If defendants have failed to prove that they have perfected their title, the Trial Court was not justified in non-suiting the plaintiffs by applying the provisions of Limitation Act. The provisions of Article 65 of Limitation Act have to be read conjointly with Section 27 of Limitation Act <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Having regard to the facts and circumstances of the case, if defendants have not succeeded in proving adverse possession, plaintiffs claim has to succeed and therefore, this Court is of the view that plaintiffs are entitled to recover possession. Accordingly, point No.1 is answered in the affirmative.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i) The appeal is allowed.</b></p>', '96c8998fd3917443d19a6fc07562a313.JPG', 'af8633a51d7aa661cc62766d0429f35a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2024-06-06', 1, '', '', '2024-06-05 12:51:52', '2024-06-06 03:22:27'),
(4584, 'V1yHBSc6rkNy252BgghuGo6pk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Municipalities Act. Advance notice to Municipality is not required in a suit for permanent injunction if the very object of filing the suit is defeated by delay. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Abdul Majeed Vs The Commissioner.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 34721 of 2015 decided on 21 January 2021.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.R. Krishna Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This petition is directed against the impugned order dated 25.07.2015 passed in O.S.No.318/2015 on the file of the First Additional Senior Civil Judge and JMFC, Chikmagalur, whereby the trial Court had rejected I.A.No.I filed by the petitioner/plaintiff under Section 80(2) of CPC read with Section 284(2) of the Karnataka Municipalities Act, 1964 (for short ‘the Act’) and consequently, directed return of the plaint to re-present the same after compliance with Section 80 of CPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The material on record indicates that the petitioner-plaintiff instituted the aforesaid suit in O.S.No.318/2015 for permanent injunction and for other reliefs in respect of the suit schedule immovable property. Having regard to the fact that the said suit was instituted against the respondent before the City Civil Court, Chikmagalur, the petitioner filed an application under </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 284(2) of the Act seeking dispensation of notice to the respondent and for permission to institute the suit. By the impugned order dated 25.07.2015, the trial Court rejected the said application and consequently, directed return of the plaint, aggrieved by which, the petitioner is before this Court by way of the present petition.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. Before adverting to the contentions urged by the learned counsel for the parties and impugned order, it is relevant to extract Section 284 of the Act, which reads as under:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>“284. Previous notice for suits, etc </b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>(1) No suit shall be instituted against any municipal council, officer, servant or any person acting under the order or direction of such municipal council, officer or servant in respect of any act done or purporting to have been done in pursuance of this Act or any rule or bye-law made thereunder until the expiration of sixty days next after notice in writing, stating the cause of action, the nature of the relief sought, the amount of compensation claimed, the name and place of residence of the intending plaintiff and the relief which he claims, has been in the case of a municipal council delivered or left at <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">its office, and in the case of such officer, servant, or person, delivered to him or left at his office or place of residence and unless the plaint contains a statement that such notice has been so delivered or left.</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>(2) Nothing in this section shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit.”</i></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. A perusal of Clause 2 of Section 284 will clearly indicate that the mandatory notice envisaged in Section 284(1) would not apply to a suit for permanent injunction if the relief claimed is permanent injunction and the very object of filing will be defeated if giving of notice or institution of the suit is postponed after issuance of notice. In other words, a suit for permanent injunction along with an application for dispensation of notice under Section 284(2) would be maintainable having regard to the reliefs claimed in the suit.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. Under these circumstances, a perusal of the plaint averments will clearly indicate that the suit was filed <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">only for permanent injunction as contemplated under Section 284(2) of the Act to which Section 284(1) would not apply.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i) Petition is allowed.</b></p>', '21f3398b301b79b81bf44c88dbdf5bae.JPG', '3e5890a6c8d42d5cfd24b740055a823f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2024-06-05', 1, '', '', '2024-06-04 12:22:02', '2024-06-05 06:23:12');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2038, 'Ef5eQWlBoGWlu5dtbLI85OC2l', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sale of explosive substance being \'res extra commercium\' like the liquor, poison, etc., no citizen can claim an unrestricted fundamental right. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Madhi Trading Co and others Vs The Joint Chief Controller of Explosives and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 46677 of 2013 decided on 29 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">Petitioners are engaged in the business of crackers & fireworks items, with the special permissions and Trade Licenses obtained at the hands of competent authorities. They claim to have been in the business since years. They are grieving before the Writ Court against the order dated 27.09.2013 whereby, the second respondent-Director General of Police has negatived their statutory appeals and thereby upheld the order dated 12.04.2012 made by the third respondent-Commissioner of Police withdrawing ‘No Objection Certificates’. The net effect of the impugned order is that the petitioners cannot run the said business in the subject congested area of Bangalore city.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court declines indulgence in the matter for the following reasons:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(b) AS TO FACT MATRIX: With the above, let me come to the foundational facts of this case. All the petitioners have been running the business in crackers & fireworks items with the licenses granted by the competent authorities under the provisions of the Explosives Act, 1884 & the Rules promulgated thereunder. They also possess the Trade Licenses granted, and renewed periodically by the City Corporation, is not in dispute. Now these licenses have been put to peril by the impugned orders on the ground that the shops of the petitioners are situate in congested areas of the city, and that any fire mishap arising from the crackers & fireworks cannot be easily handled & abatsed, because of difficulty of fire engines moving in the narrow lanes that are thickly congested & over populated. Any fire mishap in these areas would transcend the locality and will have chain reaction, cannot be disputed. It is on this premise the impugned orders have been founded. The Commissioner of Police having looked into the matter, has taken the decision way back in April 2012 i.e., a little more than  a  decade  ago.  The  Director  General  &  Inspector General of Police who happens to be Head of Police Wing in the State, too having considered the matter, has negatived the appeals of petitioners with the participation of stakeholders. The impugned orders accord with the policy considerations of the State as promulgated in the Government Orders dated 11.04.1980 and 23.09.1981</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(d) AS TO VIOLATION OF FUNDAMENTAL RIGHT: It hardly needs to be stated that the explosive substances being ‘res extra commercium’ like the liquor, poison, etc., no citizen can claim an unrestricted fundamental right under Article 19(1)(g) of the Constitution to carry on trade & business of the kind, vide KHODAY DISTILLEREIS vs. STATE OF KARNATAKA7. It is difficult to countenance the vehement submission  of  learned  Sr.  Advocate  Smt.Pramila  Nesargi appearing for the petitioners that her clients are discriminated qua others similarly circumstanced in general and private respondents herein in particular. If the petitioners have to shift their ‘apple carts’ to safer areas, quitting the lanes in question, other similarly circumstanced businessmen cannot be permitted to cling on to the same area. What applies to goose applies to gander, as rightly contended by the counsel for the State. Even otherwise, in matters like this, the doctrine of equality enshrined in Article 14 cannot be readily pressed into service, unmindful of enormous hazards that would possibly put the public at large to, should a section of traders be permitted to continue their firecracker business in the areas in question. The interest of the public would be more served by petitioners & other traders shifting their said business to safer areas than being permitted to continue in the same areas in question.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(e) There is yet another aspect of the matter, i.e., burning of firecrackers as part of ‘Diwali’ celebrations and the right to do business in such substances being constitutionally guaranteed under Article 19(1)(g) which is stressed by the counsel for the petitioners<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>In the above circumstances, this Writ Petition being devoid of merits, is liable to be dismissed and accordingly, it is, costs having been made easy. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The apprehension of the petitioners that with this judgment, their other business in the same premises may be disturbed by the official respondents stands allayed by the State Counsel’s submission that the impugned orders that are now upheld being confined to the business of firecrackers, have nothing to do with other business being carried on by the petitioners.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9c161e3c5343bf87f4b459d9f6238f63.JPG', '508d4538b67a32185a64f40991408f65.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-05', 1, '', '', '2022-08-04 16:47:00', '2022-08-06 16:02:43'),
(2039, 'd0Zo5Wk8hS6I8H2nHnINyMPsO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Company need not be arrayed as an accused for initiating criminal proceedings under the Factories Act 1948. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Patrick George Yadauga Vs The State of Karnataka<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Revision Petition 2225 of 2012 decided on 22 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P.N. Desai.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Factual matrix of the case for consideration is that the petitioner is one of the Director of M/s. Hindustan Coco-Cola Beverages Pvt. Ltd., Gurgaon, a company registered under the Companies Act, 1956 having its registered  office  at  New  Delhi.  The  said  company  is engaged in the business of manufacturing, distribution and selling of various kinds of beverages, fruit- drinks and packaged drinking water under the brand names inter alia-Thumps Up, Fanta, Maaza, Limca, Sprite, Coca-Cola, Kinley Water and Soda. The petitioner functions entirely from his corporate office at Gurgaon, (Haryana) Office. There are more than 20 manufacturing units country wide and two of its units are in Karnataka. One is at Bidadi and the other at Koppal managed by Factory Managers. The petitioner visits the units whenever need arises. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. It is further contended that the company gave a contract work order on 8th March 2012 to M/s. COTMAC Pvt. Limited, Hospet to carry out repairs and rectification of Air conditioners installed in the factory situated at Koppal. Earlier on many occasions said M/s. COTMAC Pvt. Ltd., Hospet, had carried out similar activity in the said factory.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. It is contended that on 04.04.2012, prior to issuance of work permit system and before briefing about safety instructions to the contractor\'s supervisor, without the knowledge of the Factory Manager, the contract workmen of M/s. COTMAC Pvt. Ltd., namely \"Dadapeer\" and \"Yaseen\" on their own went over the false ceiling of PET Bottle Filling Hall of the petitioner company. When they were in the process of visual inspection of Air-conditioner fixed to the eastern side wall of the production office, in that process, one of the workmen viz., \"Mr. Yaseen\" lost balance and stepped onto the false ceiling and thereby fell into PET production filling hall. He sustained grievous injury and was taken to the hospital. Mr.Dadapeer who was the Mechanic/Supervisor of M/s. COTMAC Pvt. Ltd., had bought Yaseen to work under him. The negligent act of the contract workmen of M/s. COTMAC Pvt. Ltd., was purely and solely responsible for the said accident. The company has absolutely no direct role in either allocation or control of workman Yaseen\'s work.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The company informed the accident to the Police Sub-Inspector, Munirabad, Koppal on 07.04.2012. The respondent- Factory Inspector visited the spot and gave a show-cause notice to the company on 13.06.2012 alleging contravention of Rule 79-A(b) of The Karnataka Factories Rules, 1969(for short hereinafter referred as \'Rules\', 1969) and called upon the petitioner as to why legal action should not be instituted against them. The petitioner submitted detailed reply to the show-cause notice. But the respondent instituted the criminal prosecution against the petitioner(Occupier) and Manager by filing a complaint under section 200 of The Code of Criminal Procedure, 1973 (for short hereinafter referred as \'Cr.P.C\'). before the Jurisdictional Magistrate on 30.06.2012 for the offences punishable under section 92 of the Factories Act, 1948(for short hereinafter referred as \'Act, 1948\'). The learned Magistrate by order dated 02.07.2012 issued summons to the petitioner. It is further contended that on 03.08.2012, learned counsel for the petitioner submitted an application under section 205 Cr.P.C. seeking permanent exemption from the proceedings. The said application was allowed and subsequently, accused No.2 was released on bail. Then on 01.09.2012, learned counsel for the petitioner brought to the notice of court about the exemption already granted to the petitioner on 03.08.2012, but the learned Magistrate issued non-bailable warrant against the petitioner. Hence, this petition is filed with a prayer to quash the impugned proceedings.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1948.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. From the above, the points that arise for consideration of this court are:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space:pre\">	</span>Whether the company shall be arrayed as an accused for initiating criminal proceedings in this case?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space:pre\">	</span>Whether the cognizance taken by the learned JMFC is bad in law?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>Whether the petitioner-accused who is exempted from appearance before the trial court only on the first day of appearance is deemed to have been exempted permanently during subsequent stages of the proceedings?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>Whether the complainant before instituting a criminal case against the occupier for contravention of sections 7-A(1), 32(c) of Factories Act, 1948 and provisions of Rule 84 and  79-A(b) of Karnataka Factories Rules, 1969, is required to pass an order on the reply submitted to show-cause notice so as to enable the occupier to file an appeal under section 107 of the Factories Act, 1948?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Point No.1- Whether the company shall be arrayed as an accused for initiating criminal proceedings?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. This contention need not detain me any longer in view of the judgment of the Hon\'ble Supreme Court in J.K. Industries Ltd. and others v. Chief Inspector Of Factories and Boilers and Others, (1996) 6 SCC 665, wherein it is held that the company under the Factories Act need not be made as an accused as there is no provision under the Factories Act akin to Negotiable Instruments Act, Equal Remuneration Act, Payment of Gratuity Act, Payment of Wages Act and Minimum Wages Act. Here the Director is the Occupier and occupier is the representative of the company. The Co-ordinate Bench of this Court in W.P.No.11451/2018(GM-RES),  dated  06.12.2021  in  the case of Mr. Yashihirao Horinouchi v. The Deputy Director Of Factories, Department Of Factories and Boilers, by referring to section 2(n) of the Act, 1948 held that the Director of the company would be responsible for proper implication of the Act and the Occupier would be responsible for all such acts of the factory, when it is not disputed that the petitioner is the occupier of the Factory and as some allegations are made against the company for violation of the provisions of the Act and the petitioner who has the ultimate control of the affairs of the company, in view of the principles stated in J.K. Industries Pvt. Ltd., case supra, the company is not necessary to be impleaded as party for initiating the proceedings against the Manager along with Occupier. The learned Single Judge has referred to the decision rendered by the Hon\'ble Supreme Court in the case of Aneeta Hada v. M/s. Godfather Travels & Tours Pvt. Ltd., AIR 2012 Supreme Court 2795 and discussed in detail as to how it is not applicable to the case instituted under the Act, 1948 in view of decision in J.K Industries supra. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In view of the above discussion, the argument of the petitioner\'s counsel that not arraying the company as party is fatal, is not tenable. Accordingly, point No.1 is answered in the negative.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Point No.2: Whether the cognizance taken by the learned Magistrate is bad in law.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. On perusing the above order, it is evident that the learned magistrate stated that the said complainant is a public servant. There is no need to examine the complainant or record his sworn statement. The trial court has clearly mentioned that it has perused the documents filed by the complainant. The Court has further stated the allegation in the complaint shows cognisable offence. The order sheet shows that after going through the complaint documents, as there are sufficient grounds to proceed against the accused, the trial court directed to register the case against the accused in Criminal Case Register and issued summons. The trial court stated that as the complainant alleges that an accident has occurred in the factory of the accused, it is cognizable under section 92 of the Factories Act. Hence, the trial court order shows that only after satisfying itself that there is sufficient ground to proceed against the accused under section 92 of the Factories Act and issued summons. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. Therefore, it is evident from the said order that the learned Magistrate after going through the complaint and perusing the documents is satisfied that there is contravention of provisions of Act, 1948 and Rules, 1969 and found that there are sufficient grounds to proceed for the offence, which is a cognizable offence and he has registered  the  case.  Therefore,  the  contention  of  the petitioner that the learned magistrate has not at all applied his mind before proceeding further has no basis at all.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. The proposition of law stated in the decision relied by learned counsel for the petitioner in the case of Mehmood Ul Rehman V. Khazir Mohammad Tunda and Others, (2015) 12 SCC 420 is very well settled, but it will not help the petitioner. In that case, there was examination of the complainant on oath and other witnesses. It was a defamation case. But, here in this case, the complainant is a Government Official and he need not be examined under section 200 Cr.P.C. The learned magistrate has perused the complaint and other documents and taken cognizance. The Hon\'ble Supreme Court in the above said case held that only when the complaint is dismissed, speaking order with proved reasons are required,<span style=\"white-space:pre\">	</span>but no formal or speaking order or reasoned orders are required at the stage of Sections 190/204 Cr.P.C., as evidenced from para 20.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21. In the light of touchstone of the principles stated in the above referred decisions, the order of the magistrate taking  cognizance  is  tested, it is evident that, the cognizance taken by the learned magistrate is proper and legal. Accordingly, the point No.2 in answered in the negative.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Point No.3: Whether the petitioner-accused who is exempted from appearance before the trial court only on the first day of appearance is deemed to have been exempted permanently during subsequent stages of the proceedings?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23. It is evident from the said section that the said provision empowers a magistrate issuing summons, may dispense with personal attendance of the accused. It also shows that the magistrate may direct the personal attendance of the accused at any stage of the proceedings. The personal appearance of the accused is the general rule and exemption from personal appearance may be granted in suitable cases depending upon the nature of case, the person required to appear and the stage of the case. Therefore, exemption from personal appearance under section 205 Cr.P.C. cannot be claimed by the accused as a matter of right. The said section gives discretion to the court to exempt a person, from personal appearance till such time his personal appearance was necessary for the trial of the case. Therefore the said power to grant exemption is a discretionary power depending upon the facts and circumstances of each case. The initial dispensation of the presence of the accused on valid reasons is not a ground for the accused to contend that he cannot be summoned subsequently during trial.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26. Therefore from the above orders, it is crystal clear that no order is forthcoming as to the total exemption of the petitioner throughout the proceedings. On the other hand, the order-sheet indicates that only on a particular day, petitioner\'s presence was dispensed with and he was directed to appear on the next date of hearing. Therefore, the contention taken in this petition that the proceedings needs to be set-aside as it has culminated in passing an illegal order on 01.09.2012 is not tenable. The order of issuing NBW is perfectly legal. Accordingly, I answer point No.3 in the negative.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Point No.4: Whether the complainant before instituting a criminal case against the occupier for contravention of sections 7-A(1), 32(c) of Factories Act, 1948 and provisions of Rule 84 and 79-A(b) of Karnataka Factories Rules, 1969, is required to pass an order on the reply submitted to show-cause notice so as to enable the occupier to file an appeal under section 107 of the Factories Act, 1948?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>47. There cannot be any dispute about the proposition stated in the above decisions. In the case on hand, the question involved is whether an order is required to be passed for contravention of provisions of sections and rules under the Factories Act as alleged by the complainant. No such discussion was there in the earlier decisions relied by learned counsel for the petitioner. They are writ petitions and criminal petitions filed under section 482 Cr.P.C. seeking quashing of the proceedings. In those cases, the contravention of provisions are totally different when compared to this case. No such principles on requirement of passing an order for contravention of any provisions of Factories Act and Rules was enunciated or discussed. Only relying on the Judgment of the Madras High Court, subsequent orders are passed. They have no direct bearing on the issues raised in this case. No such authoritative pronouncement on question of law on this point, so as to term it as a binding precedent is forthcoming in the said decisions. They are all very recent judgments based on the facts and point argued in that case. Therefore, the question of either disagreeing with those decisions or not following those decisions does not arise. In criminal cases, there are broad and general principles of law enunciated by the courts for appreciation of evidence, but the court has to decide the case based on facts of that case and the relevant provisions and the principles of law applicable to the case on hand. There cannot be any generality of following a particular decision which is not based on the facts and circumstances and the provisions of law involved in the case on hand. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>48. Therefore, I find that when there is no requirement of law to pass an order under section 107 for contravention of the provisions under the Factories Act and Rules as alleged in this case. Therefore, the contention of learned counsel for petitioner to quash the proceedings does not hold good. Accordingly, I answer this point in the negative. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>49. In view of the above discussions to point No.1 to 4, the revision petition being devoid of merits is liable to be dismissed.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space:pre\">	</span>The revision petition is dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '57ac3566ee944893d3c152fe99a70726.jpg', 'f2c8775162b371b27fda6f3d9336088d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-10', 1, '', '', '2022-08-04 17:35:12', '2022-08-10 13:56:17'),
(2041, '1mwzg66hyNX6sDZb25otRJ07d', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Re-determination of property tax by the Corporation under the KMC Act without prior consultation with Property Tax Board is impermissible. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Asian Paints Limited Vs The Commissioner Bhruhath Bengaluru Mahanagara Palike and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. 14241 of 2013 decided on 14 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>II.<span style=\"white-space: pre;\">	</span>FACTS IN BRIEF:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a) Petitioner is a public limited company incorporated under the provisions of erstwhile Indian Companies Act, 1913 and now governed under the provisions of Companies Act, 2013. It is engaged in the business of manufacturing selling & distributing of paints, lacquers & varnishes; for the purposes of carrying out its business it operates through a series of sales depots or godowns. On 24.12.2011, 2nd Respondent – ARO issued a Demand Notice under section 147 read with section 108 – A(3) & (11) of Karnataka Municipal Corporations Act, 1976 (hereinafter ‘1976 Act’). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b) Petitioner sent two request letters dated 11.04.2012 & 10.05.2012 to the 2nd Respondent – ARO requesting for the extension of time for replying to the demand notice. Subsequently, a Show Cause Notice came to be issued on 05.08.2012 under section 147 read with Rule 21, Schedule III of the Taxation Rules promulgated under the 1976 Act, demanding differential amount of property tax along with fine in all amounting to Rs.31,01,937/- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">(c) On 20.09.2012 a reply to the Show Cause Notice was sent by the Petitioner inter alia contending that the 1976 Act did not empower the 2nd Respondent to enhance the property tax. Subsequently, another Show Cause Notice came to be issued by the 2nd Respondent – ARO on 23.02.2013 demanding a sum of Rs. 20,84,635/- which excluded the penalty & 2% interest per mensum. Aggrieved thereby petitioner has approached the Writ Court.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>IV. (C). </b></font><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">A bare perusal of the 2011 Amendment Act shows that this new chapter, i.e., Chapter IX-A added to the 1976 Act is a complete code in & of itself and that Section 102-B of the 1976 Act, which is reproduced above gives overriding effect qua any law for the time being in force and makes consultation with the Board a sine qua non for determining the rate of any zone, area, nature or class of building for the purpose of taxation. Thus, the reliance of the learned panel counsel appearing for Respondent No. 1 & 2 on the provisions of Section 108-A of the 1976 Act does not come to their rescue, given the exclusionary provision, i.e., section 102-B. Re-determination of tax sans mandatory consultation with the Property Tax Board falls short of the principle intent of Chapter IX – A.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(d) Learned counsel appearing for the petitioner, Mr. Shridhar Prabhu, is more than justified in submitting that the Division Bench decision of the Bombay High Court in W.P. No.2592/2013 between PROPERTY OWNERS’ ASSOCIATION vs. STATE OF MAHARASHTRA disposed off on 24.04.2019 relied upon by the Respondents does not come to their aid inasmuch as section 129(2)(A) of the Maharashtra Municipal Corporation Act, 1949 contains a transitory provision whereby, the competent authorities are empowered to determine and levy property tax pending formation of the Property Tax Board. However, such a transitory provision  is conspicuously absent in the 1976 Act as amended. As to why no such transitory provision is enacted, is a matter of legislative wisdom, and Courts have to show due deference to Co-ordinate branches of Government. It has been well settled that where a statute provides for a thing to be done in a particular manner, it has to be done in that particular manner, and in no other manner vide CHANDRA KISHORE JHA VS. MAHAVIR PRASAD. Therefore, the contention of  the  Respondents that such  an  interpretation would result into loss to the Exchequer does not come to rescue of respondents, the right not to be taxed otherwise than by law being a constitutional guarantee under Article 265. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(e) There is also a lot of force in the contention of learned counsel appearing for the petitioner, that in view of the 2011 Amendment Act, the power to re-determine the property tax also withers away inasmuch as that very power sans consultation with the Board is rendered nonexistent, consultation of the Board being a sine qua non to the re-determination. Added, the power to re-determine tax arguably is an offshoot of the original power to levy tax. What emanates from the text & context of Chapter IX – A is that any re-determination of tax is nothing but a kind of ‘periodical review’ of the taxability, stopping short of re-determination of quantum. In view of principle intent & policy content of the 2011 Amendment Act, it cannot be gainsaid that re-determination is a facet to ‘periodic review’ of taxability. As already mentioned above, once the original power to tax is taken away, logically the power to re-determine also. In light of this reasoning, the impugned demand notices for the subject assessment years preceding the Amendment Act too cannot be sustained.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>In the above circumstances, this petition is allowed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '631038026cfeaea3afdb646f519fb340.JPG', '3a13fbbfd3657af8727311bbb9dc2f7a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-08', 1, '', '', '2022-08-05 16:50:44', '2022-08-08 12:20:04'),
(2042, 'D9lXfgi4nQ5IfWE2yKMlululc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Persons who had ceased to be directors of company cannot be arrayed as accused in proceedings under the NI Act in respect of cheque issued by the Company. Karnataka High Court reiterates.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rosemary Ratnam and others Vs Anam Hussain<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 3002 of 2019 decided on 18 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Private complaint under Section 200 of Cr.P.C. was filed by the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act, 188, alleging that, a cheque which was issued by M/s Mehna Plantations Pvt. Ltd., in favour of the complainant when presented for realization was dishonored for want of funds.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. Perusal of the complaint indicates that there is no allegations against the petitioners-accused that they were actively involved in the affairs of the company as on the date of the commission of the aforesaid offence. In the absence of any specific allegation so as to hold the petitioners-accused as vicariously guilty of the offence along with the company, the registration of the private complaint against the petitioners-accused is impermissible. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. Perusal of the Form No.32 submitted by the petitioners with the Registrar\'s of Companies indicates that the petitioners-accused No.4 and 8 ceased to be the directors of the Company with effect from 25.03.1995. This document has remained un-controverted by the complainant. Hence, it implies that the petitioners-accused No.4 and 8 ceased to be the directors of the company as on the date of the commission of the alleged offence. Insofar petitioner-accused No.6 is concerned, a copy of the annual returns submitted with the Registrar\'s of Companies indicates that the petitioner-accused No.6 was not a director of the company at any point of time or as on the date of the commission of the aforesaid offence. Hence, the registration of the case against the petitioner-accused No.6 who was not the director of the company as on the date of the commission of the offence is also impermissible. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. In view of the preceding analysis, I am of the considered opinion that, the continuation of the criminal proceedings against the petitioners-accused Nos.4, 6 and 8 will be an abuse of process of law<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Criminal petitions are allowed</b><br></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'baf4f2472dd89b4cfe438d7b338398bd.jpg', '6f095d20381e32f795424551b0c530d7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-08', 1, '', '', '2022-08-05 17:01:21', '2022-08-08 08:19:05');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2048, 'V0eSFA2ZRb0WQf2BjdW3ApaLl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Kerala Municipality Act 1994. Building owned by charitable institutions are not entitled to exemption even if the entire income from the buildings is used for charitable purposes. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Panayappilly Sree Narayana Guruswami Trust Vs The Corporation of Kochi and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WP (C) 10147 of 2014 decided on 29 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Shaji P. Chaly.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Petitioner is a trust, having registration No.402, allegedly registered with the\r\noffice of the Sub Registry, Ernakulam. The said trust is the owner of buildings\r\nbearing Nos.CC 14/143A, 14/143B (U/A) & 14/143C (U/A) within the limits of the\r\nCorporation of Kochi – the 1st respondent. Admittedly two of the buildings specified\r\nabove are unauthorised constructions and that\'s why the buildings are numbered\r\nas \'UA\' in accordance with the requirement under Section 242 of the Kerala\r\nMunicipality Act 1994. According to the petitioner, among the said buildings,\r\nbuilding bearing No.CC 14/143A was given exemption from the payment of\r\nproperty tax by the Corporation of Kochi from 24.8.1990 onwards. The case\r\nprojected by the petitioner is that the trust is working for the betterment of the\r\nlower strata of the society and it was taking into account the said aspect that\r\nexemption from payment of property tax to the building was given to the trust.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. While so, a complaint was filed by one Prabhakaran before the Regional\r\nJoint Director of Municipalities, Kochi against the property tax exemption granted to\r\nthe building of the petitioner trust. It is the contention of the petitioner that the\r\nsaid person approached the petitioner trust and sought for Rs.1,50,000/- to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">compromise the said matter and when the petitioner refused to budge to the\r\ndemand made by the said person, he filed the complaint before the authority.\r\nThereafter, a letter was received by the petitioner from the Corporation of Kochi\r\ninforming that the exemption granted to the buildings of the trust is proposed to be\r\ncancelled. Thereupon, the trust filed a petition before the Corporation requesting to\r\nreview the order cancelling exemption granted to the trust.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. The sole question emerging for consideration is whether the petitioner is\r\nentitled to get property tax exemption under Section 235 of Act 1994, if the\r\nbuilding in question is given on rent and the rent received is utilised for charity\r\npurposes ?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. Therefore, it can be seen that exemption can only be granted to those\r\nbuildings which are utilised for the purposes mentioned, under section 235 of Act, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1994. To put it otherwise, no other buildings are entitled to get exemption from\r\npayment of property tax. That apart, the explanation to section 235 extracted\r\nabove, clearly specifies that the exemption granted under this section shall not\r\nextend to buildings for which rent is realised by the owners and to residential\r\nhouses not being hostels attached to educational institutions and to residential\r\nhouses attached to libraries</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. Paragraph 9 of the reply affidavit extracted above, makes it clear that\r\npetitioner is realising rent from the buildings in question but it is stated that the\r\nentire amount is utilised for charity purposes. In my considered opinion, first of all\r\nthe building of the trust is not entitled to get exemption since it will not come under\r\nany of the categories mentioned under section 235 of the Act, 1994. This I say also\r\nbecause nowhere in the writ petition, petitioner has a case that the building as\r\nsuch is used for charitable purposes. Moreover, when it is admitted that rent is\r\nreceived for the building which alone is being utilised for charity purpose, it is\r\nspecific and clear that the building is not entitled to get any exemption, even\r\nassuming that the building is given free of rent to some, as stated in the reply\r\naffidavit. It is significant to note that what is exempted under section 235 of Act,\r\n1994 is the building and not the rent received to the building, which is allegedly\r\nused for charitable purposes. Which thus means merely because a trust is the\r\nowner of the building, that by itself is not an enabling circumstance for the trust to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">secure exemption from property tax under section 235 of the Act, 1994, even if it is\r\nundertaking charity work from the income generated from the building or buildings\r\nowned by it.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. This question was considered by a learned single Judge of this Court in\r\nS.N.V.Sadanam Trust v. Corporation of Kochi [(2006(3), KLT 663] and held\r\nthat exemption from property tax in respect of the building is subject to restrictions\r\nand limitations and the criteria is whether there is collection of rent or not; a very\r\nimportant aspect is that exemption is with respect to the nature of purpose to\r\nwhich the building is put and in other words, the building owned by charitable\r\ninstitutions are not entitled to exemption even if the entire income from the\r\nbuildings is used for charitable purposes as understood under the Income Tax Act;\r\nand only such of the buildings, which are used for the purposes referred to in\r\nvarious sub-sections to section 235 only, are entitled to exemption.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. Above all these aspects, petitioner has produced not even a single\r\ndocument to establish before this Court that the building is used for any of the\r\npurposes mentioned under section 235 of Act, 1994. I would also like to observe\r\nthat grant of exemption from the payment of property tax is not an empty\r\nformality; but on the other hand such an exemption can be granted only on the\r\nowner of the building establishing before the authority that the building is used\r\ncompletely for charitable or such other purposes in contemplation of law prescribed <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under the Act 1994. Therefore, I have no hesitation to say that even if any\r\nexemption was granted to the building, that will not detain the Corporation from\r\ncancelling the same if the truth otherwise is detected. To top up the other adverse\r\nfactors, petitioner has also not produced any order to show that exemption was\r\never granted to the building. That being the situation, I do not think the petitioner\r\nis entitled to get the benefits of section 235 of Act, 1994. It is also evident and\r\nclear that by virtue of the directions issued by this Court in Exhibit P2 judgement,\r\nthe subject matter was considered by the Corporation after securing a report from\r\nthe Standing Committee and the Revenue Officer of the Corporation.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Upshot of the above factual and legal deliberation is that the petitioner has\r\nnot made out a case for exercising the power of judicial review conferred under\r\narticle 226 of the Constitution of India there being no arbitrariness or illegality on\r\nthe part of the respondent corporation in raising the demands as per the notices\r\nimpugned.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Needless to say, the writ petition fails and accordingly it is dismisseda</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '54121ae27981f5899c56ad9ab85d20c3.jpg', 'b7a5378ff99ae083edc1dc9c17b20132.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-10', 1, '', '', '2022-08-08 16:46:56', '2022-08-10 08:19:13'),
(2044, 'kuM158pUmRWVVoIwCcc01PAK5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When plausible version of accused¬ in his Section 313 statement is not satisfactorily responded to by the prosecution, case against the accused¬ cannot be sustained. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jai Prakash Tiwari Vs State of Madhya Pradesh.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 704 of 2018 decided on 4 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice N.V. Ramana, Justice Krishna Murari and Justice Hima Kohli.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. The present appeal arises from the judgment dated 26.05.2017 passed by the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal No. 1870/2005. The High Court dismissed the appellant’s appeal against judgment dated 18.08.2005 passed by the First Additional Sessions Judge, Sidhi in Sessions Trial No. 119/2003, confirming his conviction under Section 307 of the Indian Penal Code, 1860 (‘IPC’) and Sections 25 and 27 of the Arms Act, 1959 (‘Arms Act’). </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. The factual matrix as per the prosecution is that, on 14.02.2003 at about 10:30 p.m., the appellant and co accused went to the complainant’s house and called him outside. When the complainant came out, the appellant fired at him with a country ­made pistol. The complainant (PW2) is stated to have run into the house and escaped injury while the appellant and co­ accused fled from the spot on their motorcycle. The complainant’s mother (PW3) was allegedly present in the house at the time of the incident and the complainant’s neighbours (PW1, PW10, PW11) arrived upon hearing the sound of gunfire. The firearm used in the alleged incident is stated to have been recovered from the appellant, along with an empty cartridge.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. From the evidence on record, it is clear that, apart from the complainant and his mother, the other independent witnesses namely Rajat Shukla (PW1), Amit Bhasin (PW10) and Vikas Shukla (PW11) have denied witnessing the incident. Even, the Sub­Inspector­Rahul Sharma (PW9), in his cross examination, has stated that the above mentioned witnesses during their police statements under Section 161 of the Cr.P.C, had indicated that they had not seen the accused­ appellant firing the shot. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10. Under the above circumstances, the only evidence available to prove the presence of the accused at the scene, apart from the testimony of the complainant himself, is that of PW3, his mother. Although, the counsel on behalf of the accused has argued that the testimony of the aforesaid witness should not be taken into consideration as she is an “interested” witness, it is an established principle of law that a close relative cannot automatically be characterized as an “interested” witness.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17. It also needs to be noted that there has been no recovery of any pellet, empty cartridge, or any remains of the gunpowder from the spot. In the absence of a ballistic report, there is no clear connection between the seized weapon and the alleged incident. Moreover, even the complainant had given a vague description of the motorcycle. Neither the license number nor the colour or any other distinguishing features have been indicated by the complainant. Even here, there is no linking factor between the seized vehicle and the alleged incident.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19. In the case at hand, the alternate version put forth by the appellant­ accused could not be ignored. Section 313 CrPC confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right, as a constitutional right to a fair trial under Article 21 of the Constitution.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>25. In the present case, the courts below failed to scrutinize the defence version put forward by the appellant­ accused in his Section 313 statement. The object of Section 313 of the Code is to establish a direct dialogue between the court and the accused.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>26. The purpose of Section 313 CrPC is to provide the accused a reasonable opportunity to explain the adverse circumstances which have emerged against him during the course of trial. A reasonable opportunity entails putting all the adverse evidences in the form of questions so as to give an opportunity to the accused to articulate his defence and give his explanation. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>27. If all the circumstances are bundled together and a single opportunity is provided to the accused to explain himself, he may not able to put forth a rational and intelligible explanation. Such, exercises which defeats fair opportunity are nothing but empty formality. Non­fulfilment of the true spirit of Section 313 may ultimately cause grave prejudice to the accused and the Court may not have the benefit of all the necessary facts and circumstances to arrive at a fair conclusion. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>28. Such an omission does not ipso facto vitiate the trial, unless the accused fails to prove that grave prejudice has been caused to him. Although the counsel on behalf the accused has not proved any serious prejudice caused to him due to failure of the Court in framing individual circumstances; however, considering the long pendency of the matter and the right of the accused to have a fair and expeditious trial, we propose to proceed and decide the matter on its own merit.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>29. It is an established principle of criminal law that the burden of proving the guilt of the accused beyond reasonable doubt is upon the prosecution. Where an accused sets up a defence or offers an explanation, it is well­ settled that he is not required to prove his defence beyond a reasonable doubt but only by preponderance of probabilities. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>31. In the above circumstances, when there is absence of independent evidence corroborating the statements made by complainant, serious doubts regarding the recovery of the alleged motorcycle and the country made pistol, no connection proved between the alleged recovered items and the alleged incident, and the plausible version put forward by the accused­ appellant in his Section 313 statement has not been satisfactorily responded to by the prosecution, the case against the accused­ appellant cannot be sustained.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>32. It is the duty of the Court to separate the grain from the chaff and to extract the truth from the mass of evidence. In our opinion, the case of the prosecution is based on mere conjectures and surmises. The High Court and the trial Court failed to consider the above mentioned circumstances while rendering the judgment convicting the accused. The evidence brought on record by the prosecution is insufficient to prove the case against the appellant beyond reasonable doubt. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>33. For these reasons, the appeal is, therefore, allowed. The conviction and sentence passed against the appellant are set aside. The appellant is on bail. The appellant stands discharged from the bail bonds.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f602e02f44b91ce3b9870827505926dd.jpg', 'f911019243b4bbe04db4359a23e74ea9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-05', 1, '', '', '2022-08-05 18:07:52', '2022-08-06 05:36:33'),
(2045, 'P2Cnto63516zy5WOrIVrM3I65', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Initiating frivolous criminal actions against large corporations would give rise to adverse economic consequences for the country in the long run. Supreme Court urges SEBI to be cautious in initiating such actions.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Reliance Industries Limited Vs Securities and Exchange Board of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1167 of 2022 decided on 5 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice N.V. Ramana, Justice J.K. Maheshwari and Justice Hima Kohli.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Brief facts necessary for disposal of this appeal are that a complaint was filed on 21.01.2002 by one Shri S. Gurumurthy, with the Securities and Exchange Board of India [for short ‘the SEBI’] against Reliance Industries Ltd. [for short ‘RIL’], its associate companies and its directors, alleging that they fraudulently allotted 12 crore equity shares of RIL to entities purportedly connected with the promoters of RIL, which were funded by RIL and other group companies in 1994. It was alleged that the company and its directors were in violation of Section 77 of the Companies Act, 1956. Based on the aforesaid complaint, the SEBI appointed an investigating officer to inquire into the aforesaid complaint. Accordingly, a report was submitted by the said investigating officer on 04.02.2005. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. It may be necessary to note that SEBI chose not to take any action with respect to the aforesaid letter. The appellant alleged that a note was prepared by the Legal Affairs Department of the SEBI on 17.05.2006, wherein it was noted that the report had not brought out any specific violation of any legal provision by RIL. However, the note was said to have observed that there was requirement of an opinion by an external expert inter alia on the possibility of initiating appropriate criminal proceedings against RIL. In this context, a retired Judge of this Court, Justice (Retd.) B.N. Srikrishna was approached by SEBI for the same. The learned retired Judge is stated to have given his first opinion to SEBI, which was divulged by SEBI in parts, to the appellant herein. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. In any case, the Adjudicating Officer of SEBI issued a show cause notice to the promoters of RIL under Rule 4 of the Securities and Exchange Board of India (Procedure for Holding Inquiry and Imposing Penalties by Adjudicating Officer) Rules, 1995 alleging violation of Regulation 11(1) of the SEBI Takeover Regulations (as it then stood). </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. It is borne out from the records that an Office Memorandum dated 18.7.2011 was issued by the Ministry of Corporate Affairs wherein it was noted that provisions under Section 77 of the Companies Act, 1956 was not attracted. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23. Having heard the parties at length and perusing the records, the following questions arise for consideration: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>i. Whether this appeal is maintainable?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ii. Whether SEBI is required to disclose documents in the present set of proceedings?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ISSUE I</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>25. The present dispute pertains to certain facts which took place in 1992­1994, when the initial complaint was instituted before SEBI in the year 2002, which is alleged to be closed by the note of the Legal Affairs Department of SEBI dated 17.05.2006. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>27. Coming to the point of delay, inter alia the contention of SEBI is that the Court should have considered Section 473 of CrPC to condone delay having considered the facts and circumstances in proper perspective. The aforesaid provision is categorical in stating that any limitation prescribed under Section 468 of CrPC can be overlooked if sufficient cause is made out in the facts and circumstances of the individual case in the interest of justice. The said provision, while trying to balance public interest in initiating criminal prosecutions, has been restricted to peculiarities of individual case while clothing the Court with discretionary power. Such a discretion vested in the Court ought to be a principled exercise, wherein the facts and circumstances portrayed justify such an exercise. The intention of the aforesaid provision is to make the inquiry a question of fact and not of untrammelled discretion as to whether in a particular case, the Court should condone the delay. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>30. In ordinary course, this Court would have remanded the matter for adjudication by the High Court on the interim application moved by the appellant seeking such disclosure. However, arguments have been extensively advanced before this Court touching upon important aspects of criminal jurisprudence which require consideration. Moreover, the facts stated above, clearly indicate that the acts which are sought to be prosecuted go back to the year 1992­1994, and over three decades have passed without there being any end to the litigation. In this regard, the Court intends to examine this important issue and pass appropriate orders to ensure that the adjudication is not delayed unnecessarily, ad infinitum.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ISSUE II</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>45. There is no doubt that the set of facts portrayed herein are unique. The impugned action of the appellant hails back to the year 1994, and almost three decades have gone by without there being any light at the end of the tunnel. The investigation report by SEBI in 2005 was inconclusive about the alleged offence. There is even a communique by the Minister of Corporate Affairs, Union of India recommending closure of the case as they found nothing to further the prosecution under Section 77 of the Companies Act, 1956. In this light, SEBI’s action to initiate a criminal complaint without providing the appellant an adequate opportunity to defend itself by releasing necessary Reports and other documents, cannot be appreciated by this Court as it is in gross violation of the appellant’s right to natural justice. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>53. Indian position seems to be different from England. Section 126 to 129 of the Evidence Act do not draw any distinction between adversarial and investigative litigation as such, and privilege is applicable all through. This aspect is crucial, as it touches on the foundations of the legal profession at large in India. This Court does not want to express any opinion in this regard as the case at hand is different and such an issue does not arise, for the following reasons:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>i. The investigation report was inconclusive, as admitted by SEBI itself.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ii. Instead of SEBI referring the issue to an expert, it could have undertaken the exercise of further investigation by itself, which was not done.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>54. The simple test in this case is whether SEBI has launched the prosecution on the basis of the investigation report alone. The answer seems to be ‘No’ by SEBI’s own admission in its reply where it states that the investigation report was inconclusive and hence further scrutiny of the transactions by experts was called for. That being the case, further Reports and opinions obtained, from whomsoever it may be, are only an extension of the investigation to help SEBI as a Regulator to ascertain the facts and reach conclusions for prosecution or otherwise</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>57. Before we part with the present appeal, another disconcerting aspect of this case that comes to the fore is SEBI’s attempt to cherry­pick the documents it proposes to disclose. There is a dispute about the fact that certain excerpts of the opinion of Justice (Retd.) B. N. Srikrishna, were disclosed to the appellant herein. It is the allegation of the appellant that while the parts which were disclosed, vaguely point to the culpability of the appellant, SEBI is refusing to divulge the information which exonerate it. Such cherry­picking by SEBI only derogates the commitment to a fair trial.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The aforesaid principle is often referred to as the ‘Cherrypicking’ principle. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>58. In the case at hand, SEBI could not have claimed privilege over certain parts of the documents and at the same time, agreeing to disclose some part. Such selective disclosure cannot be countenanced in law as it clearly amounts to cherry­picking.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>59. In view of the aforesaid discussion, we allow the present appeal. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fdb1b6e7ef1966ef87e7b0226fdae881.jpg', '24999d6efd73d3c4cc4f7ab16b5ba0ed.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-09', 1, '', '', '2022-08-08 00:16:57', '2022-08-10 01:33:50');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2046, 'xUWd0Mh92OlMA3JFgW0u3ThPs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Section 7(5)(b) of the IBC of notifying Financial Creditor before rejection of a claim applies even to appeals. NCLAT cannot close CIRP proceedings without giving Financial Creditor opportunity to explain the delay in approaching the NCLT. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kotak Mahindra Bank Limited Vs Kew Precision Parts Private Limited and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2176 of 2020 decided on 5 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Indira Banerjee and Justice J.K. Maheshwari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This appeal filed by the Appellant Financial Creditor, Kotak\r\nMahindra Bank Limited under Section 62 of the Insolvency and\r\nBankruptcy Code, 2016, hereinafter referred to as the ‘IBC’, is\r\nagainst the judgment and order dated 8th January, 2020 of the\r\nNational Company Law Appellate Tribunal, New Delhi (NCLAT)\r\nallowing Company Appeal (AT) Insolvency No. 1349 of 2019 filed\r\nby the Respondent-Corporate Debtor, against an order dated 6th\r\nSeptember, 2019 passed by the Adjudicating Authority/National\r\nCompany Law Tribunal (NCLT) admitting the application being\r\nCompany Petition No.(IB) 672/ND/2019 filed by the Appellant <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Financial Creditor under Section 7 of the IBC for initiation of the\r\nCorporate Insolvency Resolution Process (CIRP) against the\r\nCorporator Debtor.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The Corporate Debtor carries on business of manufacture of\r\ntempo and tractor components. In or about 2012-2013, the\r\nCorporate Debtor decided to expand its business and operations\r\nand entered into negotiations with bankers for finance for the\r\nproposed expansion.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. According to the Corporate Debtor, some-time in JulyAugust 2012, some employees of the Appellant Financial Creditor\r\napproached the Corporate Debtor, offering financial assistance at\r\nlesser rate of interest than the then existing bankers of the\r\nCorporate Debtor, and better facilities and business support. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. According to the Appellant Financial Creditor, the Corporate\r\nDebtor defaulted in making repayment of its dues to the Financial\r\nCreditor. The Appellant Financial Creditor, therefore, declared the\r\nAccount of the Corporate Debtor as “non-performing asset” (NPA)\r\non 30th September 2015. On 9th October, 2015, the loan was\r\nrecalled by the Appellant Financial Creditor.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. On 19th November 2017, the Appellant Financial Creditor\r\nissued statutory notice under Section 13(2) of the Securitisation\r\nand Reconstruction of Financial Assets and Enforcement of\r\nSecurity Interest Act 2002, hereinafter referred to as the\r\nSARFAESI Act.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. The Corporate Debtor alleges that there were deficiencies in\r\nthe banking services rendered by the Appellant Financier. Be that\r\nas it may, the Corporate Debtor availed credit facilities from the\r\nAppellant Financial Creditor, defaulted in repayment thereof and\r\nacknowledged liability to the Appellant Financial Creditor by\r\nmaking offers of one time settlement. When an application is\r\nfiled by a Financial Creditor under Section 7 of the IBC for\r\ninitiation of CIRP, all that the Adjudicating Authority is required to\r\nsee is, whether there is a financial debt owed by the Corporate\r\nDebtor to the Financial Creditor and whether the amount of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">debt exceeded Rs.1,00,000/- (Rupees one lac only) on the date of\r\nfiling of the company petition, the said amount being the\r\nthreshold limit for initiation of CIRP at the material time. The\r\nAdjudicating Authority also has to examine if the application is\r\nbarred by limitation.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. The proceedings initiated by the Appellant Financial Creditor\r\nunder the SARFAESI Act are not material to the issue in this\r\nappeal, of whether the application of the Appellant Financial\r\nCreditor before the NCLT was barred by limitation. Suffice it to\r\nmention that in computing the period of limitation for initiation of\r\nCIRP proceedings, the time spent in pursuing remedy under the\r\nSARFAESI Act or any other recovery law cannot be excluded. It is\r\nalso well settled that initiation of proceedings under SARFEASI or\r\nany other recovery law does not affect the right of a Financial\r\nCreditor to initiate CIRP unless its debt is repaid.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. It is the case of the Appellant Financial Creditor that on 12th\r\nDecember 2018 the Corporate Debtor made an offer of one time\r\nsettlement at Rs.15 Crores. This offer was not accepted. On 19th\r\nDecember 2018, the Corporate Debtor revised its offer to Rs.20\r\nCrores for one time settlement. This offer was also not accepted.\r\nOn 20th December 2018, the Corporate Debtor again revised its\r\noffer for one time settlement. This time the Corporate Debtor\r\noffered to settle the outstanding dues of the Financial Creditor\r\nupon payment of Rs. 24,55,00,000/- to be paid within 31st\r\nDecember 2018. This offer was accepted, and terms of\r\nsettlement were signed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. From the above, it is clear that any agreement to pay a time\r\nbarred debt, would be enforceable in law, within three years from\r\nthe due date of payment, in terms of such agreement. It appears\r\nthat Section 25(3) of the Indian Contract Act was not brought to\r\nthe notice of the NCLAT. The NCLAT also did not consider the\r\naforesaid Section.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32. Section 25(3) applies only where the debt is one which\r\nwould be enforceable against the defendants, but for the law of\r\nlimitation. Where a debt is not binding on the defendant for\r\nother reasons, and consequentially not enforceable against him,\r\nthere is no question of applicability of Section 25(3). </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>33. There is a distinction between acknowledgment under\r\nSection 18 of the Limitation Act, 1963 and a promise within the\r\nmeaning of Section 25 of the Contract Act. Both promise and\r\nacknowledgment in writing, signed by a party or its agent\r\nauthorised in that behalf, have the effect of creating a fresh\r\nstarting of limitation. The difference is that an acknowledgment\r\nunder Section 18 of the Limitation Act has to be made within the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">period of limitation and need not be accompanied by any promise\r\nto pay. If an acknowledgment shows existence of jural\r\nrelationship, it may extend limitation even though there may be a\r\ndenial to pay. On the other hand, Section 25(3) is only attracted\r\nwhen there is an express promise to pay a debt that is time\r\nbarred or any part thereof. Promise to pay can be inferred on\r\nscrutinising the document. Only the promise should be clear and\r\nunconditional</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>60. It is well settled proposition of law, as laid down in the\r\njudgment of this Court in Babulal Vardharji Gurjar v. Veer\r\nGurjar Aluminium Industries (P) Ltd.\r\n10\r\n, that limitation is\r\nessentially a mixed question of law and facts and when a party\r\nseeks application of any particular provision for extension in\r\nenlargement of the period of limitation, the relevant facts are\r\nrequired to be pleaded and requisite evidence is required to be\r\nadduced.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n61. The judgment in Babulal Vardharji Gurjar (supra) was\r\nrendered in the facts and circumstances of that case where there\r\nwere no pleadings at all. As held by this Court in Dena Bank\r\n(supra), an application under Section 7 of the IBC in statutory\r\nform which requires filling in of particulars cannot be judged by\r\nthe same standards as a plaint or other pleadings in a court of\r\nlaw. Additional affidavits filed subsequent to the filing of the\r\napplication, by way of additional affidavits or applications would\r\nhave to be construed as pleadings, as also the documents\r\nenclosed with or relied upon in the application made in the\r\nstatutory format. Furthermore, pleadings can be amended at any\r\ntime during the pendency of the proceedings.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>62. As per Section 18 of Limitation Act, an acknowledgement of\r\npresent subsisting liability, made in writing in respect of any right <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">claimed by the opposite party and signed by the party against whom\r\nthe right is claimed, has the effect of commencing a fresh period of\r\nlimitation from the date on which the acknowledgement is signed.\r\nSuch acknowledgement need not be accompanied by a promise to pay\r\nexpressly or even by implication. However, the acknowledgement must\r\nbe made before the relevant period of limitation has expired.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>64. It is well settled that even entries in books of accounts and/or\r\nbalance sheets of a Corporate Debtor would amount to an\r\nacknowledgment under Section 18 of the Limitation Act. In Asset\r\nReconstruction Company (India) Limited v. Bishal Jaiswal and\r\nAnr.\r\n12\r\n(supra) authored by Nariman, J. this Court quoted with approval\r\nthe judgments, inter alia, of Bengal Silk Mills Co. v. Ismail Golam\r\nHossain Arif,\r\n13 and in Re Pandem Tea Co.\r\n14 Ltd., the judgment of\r\nthe Delhi High Court in South Asia Industries (P) Ltd. v. General\r\nKrishna Shamsher Jung Bahadur Rana\r\n15\r\n and the judgment of\r\nKarnataka High Court in Hegde Golay Ltd. v. State Bank of India\r\n16\r\nand held that an acknowledgement of liability that is made in a\r\nbalance sheet can amount to an acknowledgement of debt. In this\r\nCase, the Appellant Financial Creditor has not relied on any books of\r\naccounts or Balance Sheets of the Corporate Debtor.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n65. Section 18 of the Limitation Act speaks of an acknowledgment in\r\nwriting of liability, signed by the party against whom such property or\r\nright is claimed. Even if the writing containing the acknowledgment is\r\nundated, evidence might be given of the time when it was signed. The\r\nexplanation clarifies that an acknowledgment may be sufficient even\r\nthough it is accompanied by refusal to pay, deliver, perform or permit\r\nto enjoy or is coupled with claim to set off, or is addressed to a person <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">other than a person entitled to the property or right. “Signed” is to be\r\nconstrued to mean signed personally or by an authorised agent.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>66. An acknowledgement made in writing within the period of\r\nlimitation extends the period of limitation. In this case, there was no\r\nacknowledgement of debt within three years from the period on which\r\nthe account of the Corporate Debtor was declared NPA or within three\r\nyears from the date on which the loan facilities were recalled.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">67. The Adjudicating Authority proceeded on the basis that the offer\r\nof settlement made by the Corporate Debtor on 12th December 2018\r\nand rejection thereof by the appellate showed the Corporate Debtor\r\nhad conceded that there was a continuous cause of action. It is,\r\nhowever, the case of the Appellant Financial Creditor in this appeal\r\nthat terms of settlement were executed on 20th December 2018\r\nwhereby the Corporate Debtor agreed to repay the amount of\r\nRs.24,55,00,000/- within 31st December 2018. The Adjudicating\r\nAuthority, however, did not refer to any settlement. Nor did it address\r\nthe question of whether any agreement for repayment of debt came\r\ninto existence in December 2018 and, if so, whether the agreement\r\nwould attract Section 25(3) of the Contract Act.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>68. The Appellate Tribunal (NCLAT) found that there was no\r\nacknowledgement of debt within the period of limitation of three years.\r\nHolding the application of the Appellant Financial Creditor, under\r\nSection 7 of the IBC, to be barred by limitation, the Appellate Authority\r\n(NCLAT) allowed the appeal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>69. The Appellate Tribunal (NCLAT) also did not notice the terms of\r\nsettlement stated to have been executed on 20th December 2018,\r\npossibly because the attention of the NCLAT was not drawn to any\r\nterms of the settlement. The Appellate Tribunal (NCLAT) did not,\r\ntherefore, have the occasion to consider whether Section 25(3) of the\r\nContract Act would be attracted. The Appellate Tribunal (NCLAT), as\r\nobserved above, proceeded on the basis that the CIRP proceedings\r\nwere barred by limitation in the absence of any acknowledgement of\r\ndebt within the period of limitation, and closed the CIRP proceedings in\r\nthe NCLT, without considering the question of applicability of Section 5\r\nof the Limitation Act for condonation of delay, to proceedings under\r\nSection 7 of the IBC.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>70. This Court is of the view that the Appellate Tribunal (NCLAT) erred\r\nin closing the CIRP proceedings without giving the Appellant Financial\r\nCreditor the opportunity to explain if there was sufficient cause for the\r\ndelay in approaching the NCLT. An appeal being the continuation of\r\noriginal proceedings, the provision of Section 7(5)(b) of the IBC, of\r\nnotifying the Financial Creditor before rejection of a claim, would be\r\nattracted. If notified of the proposal to close the proceedings, the\r\nAppellant Financial Creditor might have got the opportunity to rectify\r\nthe defects in its application under Section 7 by filing additional\r\npleadings and/or documents. As held in Dena Bank (supra),\r\ndocuments can be filed at any time until the application for CIRP is\r\nfinally dismissed. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">71. The appeal is, therefore, allowed. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1e0dd2d7d6f5c75bb7d2efee61c3f7d4.jpeg', 'b22840de04b35e58285834fd1cf7debe.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-08', 1, '', '', '2022-08-08 00:33:24', '2022-08-08 10:52:30'),
(2047, 'IDAgNSZnSnCUAj93Xy8oTKM3d', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sale of software in CD/DVD format is a sale of goods and once sales tax has been paid on the sale consideration, service tax can’t be levied on the same transaction on the ground that updates are being provided to the customer. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Commissioner of Service Tax Delhi Vs Quick Heal Technologies Limited.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5168-5169 of 2022 decided on 5 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Abhay S. Oka and Justice J.B. Pardiwala.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4.  For the sake of convenience, the appellant herein shall be referred to as the “revenue” and the respondent herein shall be referred to as the “assessee”.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">5. The assessee is registered with the Service Tax Commissioner, Pune­III for providing taxable services, inter alia, under the category of “Information Technology Software Service”. The assessee is engaged in the development of Quick Heal brand Antivirus Software which is supplied along with the license code/product code either online or on the replicated CDs/DVDs to the end­customers in India.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6.  It appears from the materials on record that it came to the notice of the Directorate General of Central Excise Intelligence (Headquarters) that the assessee engaged in the development of Quick Heal brand Antivirus Software had not been paying service tax prior to 01.07.2012 on the services covered under the category of “Information Technology Software Service” falling under Item No. (vi) of clause (zzzze) of sub­section (105) of Section 65 of the Act 1994 w.e.f  01.07.2012 on the services covered under the category of “Information Technology Software Service” under Section 66E(d) of the Act 1994 for providing Quick Heal brand Antivirus Software license key/code supplied along with the CD/DVD replicated with the Quick Heal brand Antivirus Software through the dealers/distributors to the endcustomers in India. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. In the aforesaid context, an inquiry was initiated against the assessee and at the end of the same, the revenue reached to the conclusion that the assessee is liable to pay service tax on the transactions with the end­customers to supply the license codes/keys of Quick Heal brand Antivirus Software in the retail packs. The revenue reached to the conclusion that the assessee had failed to pay the service tax on the consideration received for the supply of the license codes/keys of Antivirus Software to the end­customers in retail packs during the period between 01.03.2011 and 31.03.2014.  </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. In such circumstances referred to above, a show cause notice dated 02.02.2015 came to be issued to the assessee by the   Additional   Director  General, DGCEI (Hqrs.), New Delhi proposing a demand/recovery of service tax amounting to Rs. 62,73,05,953.36p. (Rupees Sixty Two Crore Seventy Three Lakh Five Thousand Nine Hundred Three and paise Thirty Six Only) on the taxable value of Rs. 5,30,94,66,783/­ (Rupees Five Arab Thirty Crore Ninety Four Lakh Sixty Six Thousand Seven Hundred Eighty Three Only) for supplying Quick Heal Antivirus Software replicated CDs/DVDs in the retail packs (i.e. Information Technology Software Service) through its dealers/distributors to the end­customers in India for the period between 01.03.2011 and 31.03.2014 under the proviso to Section 73(1) of the Act 1994 by invoking the extended period of limitation with interest and penalty. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. The show cause notice referred to above was adjudicated by the Additional Director General (Adjudication), DGCEI, Delhi, who, in turn, confirmed the demand of service tax amount to Rs. 56,07,05,595/­ (Rupees Fifty Six Crore Seven Lakh Five Thousand Five Hundred Ninety Five Only) alleged to have been not paid by the assessee on the service of Information Technology Software Service vide its Order in Original dated 28.01.2016. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">34. Thus, from the aforesaid, it is evident that the Tribunal laid much emphasis on the fact that in accordance with the agreement the licensee has the right to use the software subject to the terms and the conditions laid therein. The Tribunal took notice of the fact that in accordance with the agreement the licensee is entitled to use the software/RDM service from the date of the activation of the license till the date of its expiry. The Tribunal also took into consideration the fact that the licensee is also entitled for the updates and the technical support. In view of the Tribunal, the right to use the software would amount to the “deemed sale”. The Tribunal rejected the contention of the revenue that the transaction would not be covered under sub­clause (d) of the Article 366(29A) of the Constitution.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>POSITION OF LAW</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>42. TATA Consultancy Services (supra) was a case in which the specific issue of computer software packages   was considered as is the concern in the present case also. There was, however, a distinction drawn insofar as the \'uncanned software\' and \'canned software\' alternatively   termed   as \'unbranded\' and \'branded\' is concerned. The distinction is in that a \'canned software\' contains programmes which can be used as such by any person purchasing it, while an \'uncanned software\' is one prepared for a particular purchaser\'s requirements by tweaking the original software to adapt to the specific requirements of a particular entity. While a \'canned software\' could be sold over the shelf, an \'uncanned software\' is programmed to specific and particular needs and requirements. This Court held that in India the test to determine whether a property is “goods”, for the purpose of sales tax, is not confined to whether the goods are tangible or intangible or incorporeal. The  correct  test  would   be  to  determine  whether  an  item is capable of abstraction, consumption and use and whether it can be transmitted, transferred, delivered, stored, possessed, etc. It was held that both in the case of \'canned\' and \'uncanned\' software all these are possible (sic para 16).</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">46. In BSNL (supra) this Court took the view that a telephone service is nothing but a “service”. However, the nature of the transaction involved in providing the telephone connection may be a composite contract of “service” and “sale”. There may be a transfer of right to use the “goods” as defined in the providing of access or telephone connection by the telephone service provider to a subscriber. Justice Ruma Pal, speaking for the Bench in her separate judgment, took the view that a subscriber to a telephone service could not reasonably be taken to have intended to purchase or obtain any right to use electromagnetic waves or radio frequencies when a telephone connection is given. Nor does the subscriber intend to use any portion of the wiring, the cable, the satellite, the telephone exchange, etc. At the most, the concept of the sale in a subscriber\'s mind would be limited to the handset that might have been purchased for the purposes of getting a telephone connection. As far as the subscriber is concerned, no right to the use of any other goods, incorporeal or corporeal, is given to him with the telephone connection. In such circumstances, it was held that the electromagnetic waves or radio frequencies are not “goods” within the meaning of the word “either in Article 366(12) or for the purpose of Article 366(29A)(b)”. Emphasis was laid on the fact, whether there are any deliverable goods or not. If there are no deliverable goods in existence, like the one in BSNL (supra), there is no transfer of user under Article 366(29A)(b) at all.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>51.  The following principles to the extent relevant may be summed up:­</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(a) The Constitution (Forty­sixth) Amendment Act intends to rope in various economic activities by enlarging the scope of “tax on sale or purchase of goods” so that it may include within its scope, the transfer, delivery or supply of goods that may take place under any of the transactions referred to in sub­clauses (a) to (f) of Clause (29A) of Article 366. The works contracts, hire purchase contracts, supply of food   for   human   consumption,   supply   of   goods   by association and clubs, contract for transfer of the right to use any goods are some such economic activities.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(b) The transfer of the right to use goods, as distinct from the transfer of goods, is yet another economic activity intended to be exigible to State tax.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(c) There are clear distinguishing features between ordinary sales and deemed sales.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(d) Article 366(29A)(d) of the Constitution implies tax not on the delivery of the goods for use, but implies tax on the transfer of the right to use goods. The transfer of the right to use the goods contemplated in sub­clause (d) of clause (29A) cannot be equated with that category of bailment where goods are left with the bailee to be used by him for hire.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">(e) In the case of Article 366(29A)(d) the goods are not required to be left with the transferee. All that is required is that there is a transfer of the right to use goods. In such a case taxable event occurs regardless of when or whether the goods are delivered for use. What is required is that the goods should be in existence so that they may be used.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(f) The levy of tax under Article 366(29A)(d) is not on the use of goods. It is on the transfer of the right to use goods which accrues only on account of the transfer of the right. In other words, the right to use goods arises only on the transfer of such right to use goods.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(g) The transfer of right is the sine qua non for the right to use any goods, and such transfer takes place when the contract is executed under which the right is vested in the lessee. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(h) The agreement or the contract between the parties would determine the nature of the contract. Such agreement has to be read as a whole to determine the nature of the transaction. If the consensus ad idem as to the identity of the good is shown the transaction is exigible to tax.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i) The locus of the deemed sale, by transfer of the right to use goods, is the place where the relevant right to use the goods is transferred. The place where the goods are situated or where the goods are delivered or used is not relevant.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>55. The sum and substance of the ratio of the case of BSNL (supra) as discernible is that the contract cannot be vivisected or split into two. Once a lumpsum has been charged for the sale of CD (as in the case on hand) and sale tax has been paid thereon, the revenue thereafter cannot levy service tax on the entire sale consideration once again on the ground that the updates are being provided. We are of the view that the artificial segregation of the transaction, as in the case on hand, into two parts is not tenable in law. It is, in substance, one transaction of sale of software and once it is accepted that the software put in the CD is “goods”, then there cannot be any separate service element in the transaction. We are saying so because even otherwise the user is put in possession and full control of the software. It amounts to “deemed sale” which would not attract service tax.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>56. In view of the aforesaid, we have reached to the conclusion that the impugned order of the Tribunal suffers from no jurisdictional or any other legal infirmity warranting any interference at our end in the present appeal. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>57. In the result, the appeal fails and it is hereby dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>58.  There shall be no order as to costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>59. Pending application(s), if any, also stands disposed of.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '491eda91fe9a478cf54f4344f2f69128.jpg', 'ab1d8dfb08ac8c5c013a9e723fc525f1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-08', 1, '', '', '2022-08-08 00:51:34', '2022-08-08 06:20:18');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2049, '1lTK542sSZdN8ioHTHc4ZjbLE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Employee of Karnataka Milk Federation is \'public servant\' under the Prevention of Corruption Act, 1998. Karnataka High Court upholds criminal prosecution against General Manager of Nandini Milk Products.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>V. Krishnareddy Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 685 of 2022 decided on 2 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner in the subject petition calls in question registration of crime against him in crime No.7/2021, for offences punishable under Sections 13(1)(b) read with 13(2) of the Prevention of Corruption Act, 1998 (‘the Act’ for short) pending before the Principal District and Sessions Judge at Chikkaballapura.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Shorn of unnecessary details, facts in brief, are as follows:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner at the relevant point in time was working as a General Manager of Nandini Milk Products, a unit of Karnataka Cooperative Milk Producers’ Federation Limited (‘KMF’), the apex body for cooperative movement in Karnataka. The petitioner joins the service of KMF in the year 1997, as a Technical Officer and from time to time had been promoted to higher echelons of office. The issue in the case at hand is not with regard to the service condition of the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. A Police Inspector of Anti-Corruption Bureau, Central Zone, Bangalore (‘ACB’) submits a source report to the Superintendent of Police on 20-11-2021. After thorough scrutiny of the documents of the petitioner with regard to assets, liabilities and annual returns, he holds that disproportionate assets of the petitioner were to the tune of 107.70%. Based upon the said source information report, a crime comes to be registered against the petitioner on 23-11-2021 for offences punishable under Section 13(1)(b) read with 13(2) of the Act. The house and the property of the petitioner were searched and investigation is continued and is said to be in progress.  At that point in time, the petitioner knocks the doors of this Court in the subject petition seeking quashing of registration of crime itself in Crime No.7 of 2021. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. This Court by its order dated 09-03-2022 had granted an interim order of stay on a preliminary submission made by the learned counsel representing the petitioner that employees of KMF would not be public servants within its meaning as obtaining under the Act and therefore, further investigation in the case of the petitioner has been stalled.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record. In furtherance whereof, the only issue that falls for my consideration is: <i>“Whether the petitioner being a General Manager of Nandini Milk Products, which is a unit of KMF would become a ‘public servant’ within the Prevention of Corruption Act, 1998, for the ACB to register a crime.”</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. The afore-narrated facts are not in dispute. A legally drawn source information report containing all the materials pursuant to a preliminary inquiry done by the Police Inspector is submitted to the Deputy Superintendent of Police, who in turn approves registration of a crime against the petitioner. Therefore, the procedure that is necessary to be followed for registering a crime has in fact been followed in the case at hand, the source information report is also in accordance with law in the form of a report. The disproportionate assets drawn by the ACB against the petitioner is to the tune of 107.70%. The figures shown in the assets and liabilities statement run to several crores. The aforesaid facts are a matter of record though they are figures prima facie.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. It now becomes germane to refer to the judgment of the coordinate Bench on which reliance is placed by the learned  counsel  appearing  for  the  ACB  in  the  case  of G.KRISHNE GOWDA (supra). The learned Judge of this Court (Hon’ble Sri.Justice Vishwajith Shetty) in his judgment rendered with erudition considers the entire spectrum of the Act and follows the judgment of the Apex Court in the case of MANUSUKHBHAI KANJIBHAI SHAH (supra) and holds that the petitioner being an employee of ‘Nirmithi Kendra’, which undertakes civil construction for the Government and has been receiving funds from the State and the Central Governments, he is to be termed as a public servant under the Act, more so, in the light of the fact that he was performing public duty. I am in respectful agreement with the reasons rendered by the coordinate Bench in the case of KRISHNEGOWDA (supra). The present case on hand is an amplification of the phrase ‘public servant’ qua the public duty that one performs.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">14. Insofar as the judgments relied on by the learned senior counsel for the petitioner in the case of KMF & DISTRICT MILK UNIONS RETIRED EMPLOYEES KSHEMABHIVRIDHI VEDIKE AND ANOTHER v. STATE OF  KARNATAKA  AND  OTHERS  –  W.P.No.11224  of 2016 decided on 9th March, 2020, wherein the coordinate Bench of this Court holds that the employees of KMF would not be entitled to the benefits on par with the government or civil servants. This would become distinguishable on facts of the case at hand without much ado. What fell for interpretation before the coordinate Bench was not the provision under the Act, but the claim on parity and an argument of it being violative of Article 14 of the Constitution of India. A Full Bench of this Court in the case of K.V.PANDURANGA RAO v KARNATAKA DAIRY  DEVELOPMENT  CORPORATION  –  1993  SCC OnLine Kar.243, has held that a writ petition would be maintainable before the constitutional Court challenging his or her order of dismissal as KMF is a State within the meaning of Article 12 of the Constitution of India. While saying so, the Full Bench observes that the functions performed by the Government earlier to the creation of the Federation were public obligations of the State, and therefore, the Federation was an agent or instrumentality of the State within the meaning of Article 12 of the Constitution of India. Therefore, the submission of the learned senior counsel for the petitioner that an employee of the federation i.e., KMF would not come within the ambit of the phrase ‘public servant’ under the Act, is rendered unacceptable.<br></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. What can be gathered from the source information report albeit prima facie is that, the petitioner has amassed wealth beyond the known source of income. The source information report sketches graphic details about such acquisitions by the petitioner. Therefore, it is a case where further proceedings are necessary for the issue to be taken to its logical end.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. It is beyond any cavil of doubt that corruption has percolated to every nook and corner of public life in the country and has become an issue in all walks of life posing a grave danger to the concept of constitutional governance, corruption emerges in various hues and forms and it is therefore, unfathomable. Reference being made to a paragraph of the judgment of the Apex Court in the case of Mansukhbhai Kanjibhai Shah (supra) in the circumstances is apposite<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17. For all the aforesaid reasons, I, therefore, hold that the petitioner being a General Manager of Nandini Milk Products, which is a unit of the Federation i.e., KMF undoubtedly performs public duty and the Government obligations of such public duty was transferred to the Federation, when the Federation was created and therefore, the inescapable conclusion would be that the petitioner would be a public servant within the meaning of Section 2(c) of the Act. If the petitioner is a public servant under the Act, the registration of crime against him for offence punishable under Section 13(1)(b) r/w 13(2) of the Act, cannot be found fault with as it cannot be said, that it is, de hors jurisdiction. No other contention is urged in the case at hand. The solitary contention urged, for the aforesaid reasons, deserves to be repelled and is therefore rejected. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. In the result, the writ petition lacks merit and is accordingly dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a0cf0b3a815740843f4fb0978f8f67bc.JPG', 'c1cfca9af74b19d057d821acc21e2987.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-08', 1, '', '', '2022-08-09 00:27:21', '2022-08-08 14:14:49'),
(2050, 'sSkncCY5fpFjmQPdbCOe18ulu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Second petition under Section 482 Cr.P.C. is maintainable after the Magistrate takes cognizance and issues summons on the final report/charge sheet.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Latha Rajanikanth Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 10145 of 2021 decided on 2 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is before this Court calling in question proceedings in C.C.No.8355 of 2021 pending before I Additional Chief Metropolitan Magistrate, Bengaluru arising out of Crime No.217 of 2015 registered for offences punishable under Sections 196, 199, 420 and 463 read with Section 34 of the IPC. The order of taking cognizance dated 27-03-2021, for the aforesaid offences, is what drives the petitioner to this Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Shorn of unnecessary details, facts in brief for consideration of the lis, are as follows:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The 2nd respondent M/s Ad Bureau Advertising Private Limited is the complainant. Financial transactions between the complainant and M/s Mediaone Global Entertainment Limited which was represented by its Director one J.Murali Manohar generated disputes with regard to finances in connection with a Tamil cinema titled Kochadian. The Director of the said film was the petitioner’s daughter and the petitioner’s husband was the lead protagonist. The said financial dispute generated into wide publicity as it was in respect of a cinema that had its lead protagonist, a popular star in the Tamil cinema. All the electronic media wanted to publish the dispute between the Mediaone Global Entertainment Limited on the ground that the petitioner-wife of the said protagonist had executed a guarantee on behalf of Mediaone Global Entertainment Limited in favour of the complainant and had failed to honour it as the film went into losses.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3. It is contended that in order to capitalize the image of the star various media outlets both print and electronic began to get in touch with the petitioner, her family members, her managers etc. seeking her comments on the allegations so made by the complainant. The petitioner made a call to all the media not to publish anything without proper verification. Despite the request of the petitioner, it is contended that the media both electronic and print, began to publish and broadcast information of allegations made by the 2nd respondent/complainant, which according to the petitioner affected her dignity and defamed the name of her family. At that juncture, the petitioner knocked the doors of the civil Court at Bangalore against all the news agencies – 70 in number – seeking a restraint against all the 70 channels in publishing news with regard to allegations made by the complainant upon the petitioner or her family. A suit in O.S.No.9312 of 2014 was filed on 01-12-2014 and a detailed order of injunction was granted in favour of the petitioner on 02-12-2014. The Court again hearing the parties on 13-02-2015 returned the plaint for want of territorial jurisdiction and consequently, dissolved the order of injunction that was in operation. The petitioner called in question the said order before this Court in M.F.A.No.2879 of 2015 which also came to be dismissed on 24-02-2016 for default. Both these orders have become final.</font></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. The allegation in the complaint made by the complainant was that a particular document which was not in existence in a media house and which also does not exist was produced before the civil Court at Bangalore in order to get jurisdiction to entertain the suit and take an order of injunction. The said document was forged and the petitioner had initiated proceedings under the aforesaid provision of law by producing a document which is forged before a court of law and thereby cheated the complainant and the Court. The petitioner called in question registration of the said complaint and consequent direction to investigate before this Court in Criminal Petition No.4291 of 2015. This Court by its order dated 10-03-2016 holding it to be pure civil dispute quashed the entire proceedings and gave liberty to the petitioner to either seek damages or action under Section 138 of the Negotiable Instruments Act. This was called in question by the complainant before the Apex Court in Criminal Appeal No.854 of 2018. A three Judge Bench of the Apex Court set aside the order passed by this Court and held that it was a triable case and the Court ought not to have quashed the entire complaint. It is after the order of the Apex Court, the proceedings continued before the learned Magistrate. The Police after investigation filed a charge sheet in the matter on 27.02.2021 for the aforesaid offences and the learned Magistrate takes cognizance thereto by his order dated 27-03-2021 and issued summons to the petitioner, accused therein. It is this action of the learned Magistrate that drives the petitioner again to this Court in the subject petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record. In furtherance whereof, the following points arise for my consideration:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Whether the present petition, second in line, under Section 482 of the Cr.P.C. would be maintainable?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>Whether the order taking cognizance dated 27.03.2021 by the learned Magistrate suffers from want of jurisdiction?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. Point No.(i): Whether the present petition, second in line, under Section 482 of the Cr.P.C. would be maintainable?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. The petitioner had earlier called in question registration of crime in Crime No.217 of 2015 which went up to the Apex Court resulting in an order being passed by the Apex Court as afore-quoted. The petitioner did not knock the doors of this Court immediately again. The petitioner after the learned Magistrate taking cognizance of the offences on the final report being filed by the police again knocks the doors of this Court. Therefore, the circumstances that lead the petitioner to the doors of this Court is taking of cognizance and issuance of summons on the final report/charge sheet. On this changed circumstance, the second petition under Section 482 of the Cr.P.C., notwithstanding the earlier one, even it were to be dismissed, is maintainable.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. The petitioner has filed the present petition on the score that the order of taking cognizance runs counter to the statute and, therefore, cognizance could not have been taken. In the light of the submission being made that it is contrary to the statute, I deem it appropriate to consider the petition on its merit despite the order of the Apex Court, as quoted hereinabove, wherein the Apex Court holds that it was a case for trial. The Apex Court at the time it rendered its order, the present case was at the stage of registration of crime and was pending. In the light of other judgments rendered by the Apex Court on the point, this petition would be maintainable and the hearing of the contentions on their merit would become available. The first point is thus answered against the 2nd respondent/complainant holding that the second petition under Section 482 of the Cr.P.C. was maintainable.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. Point No.(ii): Whether the order taking cognizance dated 27.03.2021 by the learned Magistrate suffers from want of jurisdiction?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. In the light of the judgment rendered by the Five Judge Bench in IQBAL SINGH MARWAH being considered in the subsequent judgments in BANDEKAR BROTHERS and BHIMA RAZU PRASAD, if the document that is produced in the case at hand is considered, it does not have a reasonable nexus with the issue that was put forth before the concerned Court, notwithstanding the fact that the document was allegedly created outside the Court proceeding and was produced before the Court in the civil proceeding instituted by the present petitioner. Taking of cognizance for offences quoted supra would be a bar under Section 195(1)(b)(i) of the Cr.P.C. Section 195(1)(b)(i) clearly refers to offences punishable under Sections 193 to 196, 199, 200, 205 to 211 said to have been committed in or in relation to any proceeding in any Court. Therefore, the offences so alleged under Sections 196 or 199 would stand barred from the learned Magistrate taking cognizance, unless the procedure under Section 340 of the Cr.P.C. is followed by the concerned Court, where the evidence or the document is said to be placed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21. The other offences alleged against the petitioner are the ones punishable under Sections 420 and 463 read with 34 of the IPC. Section 420 of the IPC requires the ingredients as obtaining in Section 415 of the IPC to be present. Section 415 of the IPC mandates that there should be inducement from the hands of the accused to the victim to part with any property and the transaction should be tainted with dishonest intention right from its outset. No such ingredient as is needed has even a mention in the allegation. Therefore, the allegation for the offence punishable under Section 420 of the IPC has been recklessly included without there being any foundation laid in the complaint.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22. The next offence is with regard to Section 463 of the IPC. Section 463 of the IPC though has its mention in Section 195(1)(b)(ii), in the light of the document forged and created outside when the matter was not custodia legis, the issue would stand covered by the judgment rendered in the case of IQBAL  SINGH  MARWAH  (supra). As  held  by  the Apex Court in the case of BANDEKAR BROTHERS (supra), it cannot be said that offences alleged under Section 193 to 196 as found in 195(1)(b)(i) are so inseparable that it would take within its sweep the offence as indicated under Section 195(1)(b)(ii) as well. If it is not so inseparable, IQBAL SINGH MARWAH is what would occupy the field. In the considered view of this Court Section 463 of the IPC as is alleged is not so inseparable that would bar the Magistrate from taking cognizance of the offence except on a proceeding initiated under Section 340 of the Cr.P.C. Therefore, the allegation under Section 463 of the IPC so made against the petitioner and the cognizance so taken by the learned Magistrate only insofar as it concerns Section 463 of the IPC cannot be interfered with. But, cognizance being taken for offences under Sections 196 and 199 of the IPC warrant appropriate interference.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Criminal Petition is allowed in part.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c331e13732682c7c15dde545909fa1fe.JPG', 'ab1759094534bc595f6baca873b3bd70.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-13', 1, '', '', '2022-08-09 00:39:51', '2022-08-13 09:23:15'),
(2069, '4CExPc8YIBN335LU0E237yFVb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Independence did not mean mere freedom from British Rule by breaking the bonds of slavery but it meant more than that. It meant justice to all citizens of India, irrespective of religion, caste, creed or language, each getting his legitimate due.\'\'', '<p class=\"MsoNormal\" style=\"margin-bottom: 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial; word-break: break-all;\"><b><i><span style=\"font-size: 10pt; font-family: Verdana, sans-serif;\">Panchayat\r\nVarga Sharmajivi Samudaik Sahakari Khedut Coop. Society v. Haribhai Mevabhai</span></i><span style=\"font-size: 10pt; font-family: Verdana, sans-serif;\">, (1996) 10 SCC 320&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial; word-break: break-all;\"><b><span style=\"font-size: 10pt; font-family: Verdana, sans-serif;\"><br></span><span style=\"text-indent: 18pt; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-size: 12pt; font-family: \" open=\"\" sans\",=\"\" sans-serif;\"=\"\">11.</span></span><span style=\"text-indent: 18pt; font-size: 12pt; font-family: \" open=\"\" sans\",=\"\" sans-serif;\"=\"\">&nbsp;Gandhiji, the Father of the\r\nNation, on the eve of independence had stated that “independence did not mean\r\nmere freedom from British Rule by breaking the bonds of slavery but it meant\r\nmore than that. It meant justice to all citizens of India, irrespective of\r\nreligion, caste, creed or language, each getting his legitimate due”.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial; word-break: break-all;\"><b><span style=\"text-indent: 18pt; font-size: 12pt; font-family: \" open=\"\" sans\",=\"\" sans-serif;\"=\"\"><br></span><span style=\"text-indent: 18pt; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-size: 12pt; font-family: \" open=\"\" sans\",=\"\" sans-serif;\"=\"\">12.</span></span><span style=\"text-indent: 18pt; font-size: 12pt; font-family: \" open=\"\" sans\",=\"\" sans-serif;\"=\"\">&nbsp;It was held in&nbsp;<i>Dalmia\r\ncase</i>&nbsp;[(1996) 10 SCC 104 : JT (1996) 4 SC 555] that social and economic\r\njustice to the agriculturists is a fundamental right. It was further held that\r\nsocial justice forms the basis of stability in society. Economic justice means\r\nthe abolition of those economic conditions which ultimately result in the\r\ninequality of economic values among men. It means to establish a democratic way\r\nof life built upon socio-economic structure of the society to make the rule of\r\nlaw dynamic.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial; word-break: break-all;\"><b><span style=\"text-indent: 18pt; font-size: 12pt; font-family: \" open=\"\" sans\",=\"\" sans-serif;\"=\"\"><br></span><span style=\"text-indent: 18pt; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-size: 12pt; font-family: \" open=\"\" sans\",=\"\" sans-serif;\"=\"\">13.</span></span><span style=\"text-indent: 18pt; font-size: 12pt; font-family: \" open=\"\" sans\",=\"\" sans-serif;\"=\"\">&nbsp;In&nbsp;<i>Murlidhar Dayandeo\r\nKesekar</i>&nbsp;v.&nbsp;<i>Vishwanath Pandu Barde</i>&nbsp;[1995 Supp (2) SCC\r\n549 : JT (1995) 3 SC 563] it was held that welfare is actually a form of\r\nliberty inasmuch as it liberates men from social conditions which narrow their\r\nchoices and brighten their self-development. In para 17, it was held that\r\n“providing adequate means of livelihood for all the citizens and distribution\r\nof the material resources of the community for common welfare, enable the poor,\r\nthe Dalits and tribes, to fulfil the basic needs to bring about a fundamental\r\nchange in the Indian structure. Therefore, with a view to make political\r\ndemocracy stable, the State should see that socio-economic democracy takes\r\nstrong roots and becomes a way of life. The State, therefore, is enjoined to\r\nprovide adequate means of livelihood to the poor, weaker sections of the\r\nsociety, the Dalits and tribes and to distribute material resources of the\r\ncommunity among them for common welfare etc. The socio-economic justice was\r\nheld to be fundamental right of the poor. Economic empowerment was, therefore,\r\nheld to be basic human right and the fundamental right as a part of right to\r\nlive with equality of status and of dignity.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial; word-break: break-all;\"><b><span style=\"text-indent: 18pt; font-size: 12pt; font-family: \" open=\"\" sans\",=\"\" sans-serif;\"=\"\"><br></span><span style=\"text-indent: 18pt; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-size: 12pt; font-family: \" open=\"\" sans\",=\"\" sans-serif;\"=\"\">14.</span></span><span style=\"text-indent: 18pt; font-size: 12pt; font-family: \" open=\"\" sans\",=\"\" sans-serif;\"=\"\">&nbsp;Economic empowerment of the poor,\r\nin particular the Scheduled Castes and Scheduled Tribes, as is enjoined under\r\nArticle 46, is a constitutional objective as basic human and fundamental right\r\nto enable the labourer, Scheduled Castes and Scheduled Tribes to raise their\r\neconomic empowerment. When the appellant-Society had requested for assignment\r\nof the wasteland vested in the Gram Panchayat, the Gram Panchayat undoubtedly\r\npassed a unanimous resolution requesting the Collector to resume the land for\r\nassignment to the appellant-Society. Since, the Gram Panchayat as a\r\nrepresentative body passed the resolution, it would be obvious that the elected\r\nmembers represent the interest of the Gram Panchayat for effecting the\r\nconstitutional goal. When the Gram Panchayat in turn passed the resolution for\r\nthe said purpose, there was no obligation to issue notice to the villagers.\r\nThat apart, the scheme of Section 96 is clear. The legislature is cognizant of\r\nthe fact that when public road or street is sought to be discontinued or\r\nclosed, public is likely to be affected the Sarpanch or Chairman acting on\r\nbehalf of Gram Panchayat etc. is enjoined by the proviso to sub-section (2) of\r\nSection 96 to issue notice to them. It specifically enjoins the Sarpanch or the\r\nChairman, as the case may be, to cause a notice to be issued in the prescribed\r\nmanner, before passing a resolution so that the affected users would have an\r\nopportunity to put in their objections for consideration by the Gram Panchayat.\r\nBut when the wasteland or open site or vacant land or grazing land vested in\r\nthe State was sought to be resumed from the Gram Panchayat by the Collector for\r\nanother laudable public purpose, then the silence of issuance of notice is\r\neloquent. Requirement of hearing the villagers is not insisted. The legislature\r\ndid not intend issuance of notice to the villagers. It is contended for the State\r\nthat in a case where the Gram Panchayat sought to pass a resolution requesting\r\nthe Collector to resume the land in the possession and enjoyment of a person\r\nand when the resumption affects such a person, the issuance of prior notice to\r\nsuch affected person should be implicit. We need not go into that question\r\nsince that question does not arise in this case. Under these circumstances, the\r\nview of the Government, the learned Single Judge and the Division Bench of the\r\nHigh Court for issuance of a notice to the villagers is clearly not warranted\r\nby the scheme of Section 96(4) of the Act.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial; word-break: break-all;\"><b><span style=\"text-indent: 18pt; font-size: 12pt; font-family: \" open=\"\" sans\",=\"\" sans-serif;\"=\"\"><br></span><span style=\"text-indent: 18pt; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-size: 12pt; font-family: \" open=\"\" sans\",=\"\" sans-serif;\"=\"\">10.</span></span><span style=\"text-indent: 18pt; font-size: 12pt; font-family: \" open=\"\" sans\",=\"\" sans-serif;\"=\"\">&nbsp;Social democracy means a way of\r\nlife which recognises liberty, equality and fraternity as principles of life.\r\nThey are the trinity. One cannot diverse one from the other. Without equality,\r\nliberty would produce supremacy of the few over the many. Equality without\r\nliberty would denude the individual of his initiative to improve excellence.\r\nWithout fraternity, liberty and equality would not nurture as their natural\r\nhabitat. Social and economic justice is a constitutional right enshrined for\r\nthe protection of the society. The right to socio-economic justice in the\r\ntrinity, the Preamble, Fundamental Rights and Directives is to make the quality\r\nof life of the disadvantaged people meaningful. Equal protection in Article 14,\r\ntherefore, requires affirmative action by the State to those unequals by\r\nproviding facilities and opportunities.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial; word-break: break-all;\"><b><span style=\"text-indent: 18pt; font-size: 12pt; font-family: \" open=\"\" sans\",=\"\" sans-serif;\"=\"\"><br></span><span style=\"text-indent: 18pt; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-size: 12pt; font-family: \" open=\"\" sans\",=\"\" sans-serif;\"=\"\">9.</span></span><span style=\"text-indent: 18pt; font-size: 12pt; font-family: \" open=\"\" sans\",=\"\" sans-serif;\"=\"\">&nbsp;A Bench of three Judges of this\r\nCourt in&nbsp;<i>Consumer Education &amp; Research Centre</i>&nbsp;v.&nbsp;<i>Union\r\nof India</i>&nbsp;[(1995) 3 SCC 42 : 1995 SCC (L&amp;S) 604] held that social\r\njustice is the arch of the Constitution to ensure life to everyone to be\r\nmeaningful and liveable with human dignity. Jurisprudence is the eye of law\r\ngiving an insight into the environment of which it is the expression. It\r\nrelates the law to the spirit of the time and makes it richer. Law is the\r\nultimate aim of every civilised society, as a key system in a given era, to\r\nmeet the needs and demands of its time. Justice, according to law, comprehends\r\nsocial urge and commitment. Justice, liberty, equality and fraternity are\r\nsupreme constitutional values to establish the egalitarian social, economic and\r\npolitical democracy. Social justice, equality and dignity of person are\r\ncornerstones of social democracy. Social justice consists of diverse principles\r\nessential for the orderly growth and development of personality of every\r\ncitizen. Justice is the generic term and social justice is its facet, a dynamic\r\ndevice to mitigate the sufferings of the disadvantaged and to eliminate\r\nhandicaps so as to elevate them to the level of equality to live life with\r\ndignity of person. Social justice is not a simple or single idea of a society\r\nbut is an essential part of complex social change to relieve the poor etc. from\r\nhandicaps, penury, to ward them off from distress and to make their lives\r\nliveable for greater good of the society at large. Social justice, therefore,\r\ngives substantial degree of social, economic and political equality, which is\r\nthe constitutional right of every citizen. In para 19, it was further\r\nelaborated that social justice is one of the disciplines of justice which\r\nrelates to the society. What is due cannot be ascertained by an absolute\r\nstandard which keeps changing depending upon the time, place and circumstances.\r\nThe constitutional concern of social justice, as an elastic continuous process,\r\nis to transform and accord justice to all sections of the society by providing\r\nfacilities and opportunities to remove handicaps and disabilities with which\r\nthe poor etc. are languishing. It aims to secure dignity of their person. It is\r\nthe duty of the State to accord justice to all members of the society in all\r\nfacets of human activity. The concept of social justice embeds equality to flavour\r\nand enliven practical content of life. Social justice and equality are\r\ncomplementary to each other so that both should maintain their vitality. Rule\r\nof law, therefore, is a potent instrument of social justice to bring about\r\nequality in result. Article 1 of the Universal Declaration of Human Rights\r\nenvisions that all human beings are born free and equal in dignity and rights\r\nand each should act towards one another in a spirit of brotherhood. In that\r\ncase the question was whether right to social security is a fundamental right\r\nof a workman? To make the life of the workman worth living with health, right\r\nto health was held to be a fundamental right and it is the duty of the State\r\nand the employer to provide facilities and opportunities for ensuring sustained\r\ngood health and leisure to the workman as a facet of right to life under\r\nArticle 21.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial; word-break: break-all;\"><b><span style=\"text-indent: 18pt; font-size: 12pt; font-family: \" open=\"\" sans\",=\"\" sans-serif;\"=\"\"><br></span><span style=\"text-indent: 18pt; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-size: 12pt; font-family: \" open=\"\" sans\",=\"\" sans-serif;\"=\"\">8.</span></span><span style=\"text-indent: 18pt; font-size: 12pt; font-family: \" open=\"\" sans\",=\"\" sans-serif;\"=\"\">&nbsp;In&nbsp;<i>Dalmia Cement (Bharat)\r\nLtd.</i>&nbsp;v.&nbsp;<i>Union of India</i>&nbsp;[(1996) 10 SCC 104 : JT (1996)\r\n4 SC 555] a Bench of three Judges to which we were members had held that: (SCC\r\np. 116, para 13)</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial; word-break: break-all;\"><b><span style=\"text-indent: 18pt; font-size: 12pt; font-family: \" open=\"\" sans\",=\"\" sans-serif;\"=\"\"><br></span><span style=\"font-family: \" open=\"\" sans\",=\"\" sans-serif;=\"\" font-size:=\"\" 12pt;=\"\" text-indent:=\"\" 18pt;\"=\"\"><i>“Social justice is the comprehensive\r\nform to remove social imbalances by law harmonising the rival claims or the\r\ninterests of different groups and/or sections in the social structure or\r\nindividuals by means of which alone it would be possible to build up a welfare\r\nState. The ideal of economic justice is to make equality of status meaningful\r\nand the life worth living at its best removing inequality of opportunity and of\r\nstatus — social, economic and political.”</i></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial; word-break: break-all;\"><span style=\"font-size: 12pt; font-family: \" open=\"\" sans\",=\"\" sans-serif;\"=\"\"><b>Right to cultivation of agricultural land was held to be a\r\nsocio-economic justice to an agriculturist as fundamental right.</b></span></p>', 'bb1ed13410329e8418975d76e1720fa2.png', 'd2742889ca710fb622d2122d0f03a24a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-15', 1, '', '', '2022-08-15 03:13:09', '2022-08-15 15:43:43');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2051, '5DkcrxnxztZgexZrEPSOO20x3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Compromise decree creating rights/title or interest for the first time, as distinguished from recognition of an existing right, would require registration. Supreme Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">S. Kuldeep Singh and another Vs S. Prithpal Singh.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 81 of 2011 decided on 2 August 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice K.M Joseph and Justice Hrishikesh Roy.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">1. The present appeal is against the judgment and order dated 28.10.2009 in LPA No.174/2008 where under the Division Bench of the High Court of Jammu & Kashmir at Srinagar upheld the decree in favour of the respondent-plaintiff rendered on 31.07.2003 by the learned District Judge, Anantnag. The suit was filed seeking declaration and possession in respect of the land measuring 11 Kanals and 15 marlas falling within the survey nos.1829 and 1838 situated at Ranbirpora, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Anantnag. The appellants are the natural son and daughter of late S. Sucha Singh whereas the respondent/plaintiff S. Prithpal Singh claimed to be the adopted son of Sucha Singh.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2. In the suit, Prithpal Singh as the plaintiff claimed that he received gifts of land in his favour from Sucha Singh. But although the suit schedule properties were more, the plaintiff confined his relief to the land measuring 11 kanals and 15 marlas mentioned above and not any other lands of his adoptive father Sucha Singh. In the plaint, Prithpal Singh enclosed certified copy of a compromise deed in between himself and one Abdul Jalil Khan and the claim of the plaintiff centers around the said compromise deed dated 18.12.1975.</span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Findings</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">A. Whether the compromise dated 18.12.1975 confers title? <span style=\"font-size: 12pt;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">20. The power under the 1973 Rules confers limited power to the circle officer’s and it is confined to verifying, amending, and authenticating revenue records as they existed on the cutoff date i.e., 1st September, 1971. Thus, it is clear that a mere affirmation in the context of revenue records and personal cultivation rights cannot be interpreted as an intention of Sucha Singh to confer title upon the Plaintiff. With his endorsement on the compromise, Sucha Singh perhaps intended to give the right of personal cultivation but <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the same does not in any manner suggest that Sucha Singh had intended to confer title on the plaintiff.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">21. It is also important to note that Plaintiff in his own testimony (led before Trial Court, and recorded in the Trial Court judgment) had stated that Sucha Singh prepared “orchards”. Albeit, by using the salary of Plaintiff. The land is therefore of the orchard category. In this situation, the land which is the subject matter of the Compromise being an Orchard stood excluded from the definition of land under S. 2(4) of the 1972 Act. As such, the title for such category of land could not vest with the Plaintiff. This determination of fact is essential to adjudicate the title and the issue was definitely raised in the LPA proceeding before the High Court, apart from being raised in the lower court also. In such a situation this Court is required to keep the ‘orchard’ aspect in mind and also address the implication of the same on the contesting parties. The upshot of the above </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">persuade us to hold that the compromise (18.12.1975) does not convey any lawful title on the Plaintiff.</span><span style=\"font-size: 12pt;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">B. Did the compromise require registration?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">26. In the present case, the Appeal filed by the tenant – Jalil Khan arose from the change of the entry in the records during the process of verification under the 1972 Act. It was in this Appeal that the compromise was recorded and endorsed by the DC’s Order, recognizing the possession of the Plaintiff for the very first time, as was also admitted by plaintiff in paragraph 6 of the Suit. In circumstances of this kind, we are quite certain that the compromise was required to be registered, under Section 49 of the Registration Act, 1977 and also under Section 138 of the J&K Transfer of Property Act. Without such registration no title can fructify for the plaintiff from the documents in question.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">27. Furthermore, the compromise and the DC’s consequent Order, was passed in a revenue proceeding and this was definitely not a part of a Court proceeding. That being the case, the compromise did not fall under the exception category under Section 17(2)(vi) of Registration Act, 1977 (as applicable to then State of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">J&K). The above makes it abundantly clear that the compromise in order to have legal effect needed registration under the Registration Act, 1977.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">28. Significantly, the DC’s 24.12.1975 order based on the Compromise, also dealt with 6 Kanals land forming part of Survey No. 1829 & 1838 which went to the ownership of the tenant - Jalil Khan. The subject compromise or the DC’s order was not restricted only to 11 Kanals and 15 Marlas as claimed by the Plaintiff. These circumstances would imply that the compromise required registration for it to be of any legal effect. Since title is claimed, and the plaintiff founded his entire case on the compromise, it would necessarily require registration. Accordingly, question B is answered in affirmative.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">29. The defendants have also unsuccessfully argued before the High Court that the jurisdiction of the Deputy Commissioner to exercise powers under the J&K Agrarian Reforms Act, 1972 stood suspended on the date of passing the Compromise Decree. Such a question of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">law has a material bearing on this litigation and the same needs to be considered. The 1972 Act as noted earlier, was suspended during 25.03.1975 to 30.03.1976 and during this period the Compromise was recorded on 18.12.1975 and the 24.12.1975 Order was passed by the DC. The power exercised for these orders are traceable to the suspended provisions of the Act. Of course, the J&K Agrarian Reforms (Suspension of Operations) Act, 1975 did have a proviso which created exceptions for certain sections of the 1972 Act.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">30. The above makes it clear that this case is outside the ambit of any of the exempted sections such as <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 15 (Prohibition on transfer of land), 25 (levy of annual tax), 27 (collection of tax), 28 (Determination of ques-levy of tax related), 51 (repeal & savings) of the 1972 Act. Only such provisions of Chapter V which were relatable to the aforesaid provisions were relevant, and not all sections were within the ambit of exception. Section 31 of the 1972 Act which provided for Appeals and Revisions, was not protected by Section 4 of the Suspension Act, 1975. Thus, the DC, in our mind lacked inherent jurisdiction to either entertain the appeal or endorse the compromise during the suspended phase. In cases where the authority lacked jurisdiction under a special Act and yet exercises powers, without authority of law, any order or decree so passed through such unlawful exercise of power, will be a legal nullity. The deficiency of jurisdiction of the authority cannot be cured by the consent of the parties. The challenge to such an incompetent order could be set up wherever it is sought to be enforced or relied upon, even in</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">execution or in collateral proceedings17. Accordingly answering in favour of the defendants, the DC’s order in our opinion can have no legal effect as the same was passed during the operation of Suspension Act, 1975. We have found that the compromise being unregistered cannot confer title on the respondent.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">31. The final issue for our consideration is whether estoppel principle would apply against the defendants in their challenge to DCs order. Equity as we know follows the law, and whenever there is a conflict between law and equity, it is the law which must prevail. Here the Latin maxim “dura lex sed lex”, which means “the law is hard, but it is the law” would apply. Equity can only supplement the law, but it cannot supplant or override it18, and this would have a bearing against the respondent.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">32. The records in the case show that Sucha Singh, during his life time, had cancelled the two Wills in favour of the plaintiff. This indicates that Sucha </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Singh was not interested to give any part of his property to the plaintiff. Even otherwise, the suit property is self-acquired property of Sucha Singh, and a donee cannot claim equity in respect of the disposal of self-acquired properties, by a donor. Equity is all about balancing the competing interests and due weightage must be given to the fact that the appellants have been in possession and was nurturing their father’s land for over four decades and the estoppel principle propounded against them by the respondent must give way to the law set out by the statute19.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">33. Notwithstanding the concurrent finding against them, in a case like this, where the law leans in appellant’s favour, the Court has to exercise corrective jurisdiction as the circumstances justify. As such, taking a cue from Haryana State Industrial Development Corporation vs. Cork Manufacturing Co20., the exercise of extraordinary jurisdiction under Article 136 is found to be merited in this matter.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">34. Proceeding accordingly, the decree in favour of the respondent (Plaintiff) in respect of the land measuring 11 Kanals and 15 Marlas falling within the survey nos.1829 and 1838 situated at Ranbirpora, Anantnag, are set aside. The Appeal stands allowed by leaving the parties to bear their own cost.</span></p>', 'f15756051be51e5ade9ef8d83a5c64ac.jpeg', 'e0257538d5b6407a9026824615d612fa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-10', 1, '', '', '2022-08-09 01:20:48', '2022-08-10 06:21:42'),
(2054, 'o3PCEQhmSoi0kL362ZY8e7rTT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Blacklisting of tenderer. Allegation of false declaration would not sustain where the stipulations are either ambiguous or open to more than one plausible interpretation. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S JBM Electric Vehicles Private Limited Vs Union of India and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. (C) 804 of 2022 decided on 8 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Yashwant Varma.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">1. The petitioner, JBM Electric Vehicles Private Limited has\r\npetitioned this Court impugning the letter dated 25 April and 29 April 2022 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">issued by the Ministry of Heavy Industries1\r\nand IFCI Limited. The\r\ncommunication essentially debars the petitioner and its group companies\r\nfrom all future tenders and for the period of the Production Linked\r\nIncentive Scheme2\r\nupto 31 March 2027. The aforesaid action is stated to\r\nhave been taken upon it being found that the petitioner had furnished\r\nincorrect information for the purposes of claiming benefits under the PLI\r\nScheme. The second letter impugned in the writ petition is a\r\ncommunication from IFCI holding that the petitioner had submitted an\r\napplication for extension of benefits under the PLI Scheme basing its\r\nGlobal Group Revenue to be Rs. 10,590.74 crores. IFCI contends that on\r\nscrutiny it has been found that the aforesaid declaration is incorrect since it\r\nalso includes revenue of Rs. 910.50 crores from intra-group sales. IFCI\r\ngoes on to hold that the inclusion of that revenue enabled the petitioner to\r\nproject that it met the eligibility criteria. This action according to the\r\nrespondents clearly amounted to a violation of the Integrity Pact\r\nUndertaking submitted by the petitioner and consequently warranted its\r\ndebarment from all tenders of MHI that may be issued during the pendency\r\nof the PLI Scheme and up to 31 March 2027. This communication also\r\nrefers to the letter of the MHI dated 25 April 2022 referred to above. In\r\norder to appreciate the challenge which is raised in the writ petition it\r\nwould be apposite to notice the following essential facts.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. On 23 September 2021 the Union Government announced the PLI\r\nScheme for the automobile and auto component industry. The PLI Scheme\r\nproposed financial incentives to boost domestic manufacturing of advanced\r\nautomotive technology products and to attract investment in the automotive\r\nmanufacturing value chain. The Basic Eligibility Criteria was specified as\r\nbeing companies or group companies with an existing presence in India or\r\nglobally in the automotive vehicle and components manufacturing business\r\nhaving a Global Group Revenue of a minimum of Rs.10,000 crores</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. On 11 February 2022 a Press Release came to be issued which set\r\nforth the details of the 20 applicants who had been approved under the PLI\r\nScheme. The name of the petitioner did not stand included in that list\r\nwhich was published. The petitioner is stated to have then met with the\r\nofficers of IFCI on 14 February 2022. It is alleged that in the course of that\r\ninteraction with the representatives of IFCI the petitioner was apprised of a\r\ncomplaint having been received alleging that the Global Group Revenue, as <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">disclosed by the petitioner had been inflated and that it did not meet the\r\nbenchmark of Rs.10,000 crores as stipulated under the PLI Scheme. After\r\nthe aforesaid meeting, the petitioner addressed two emails dated 15 and 17\r\nFebruary 2022 explaining that the complaint which essentially alleged that\r\nintra-group sales and revenues were liable to be excluded while calculating\r\nthe global group turnover, was incorrect and that the turnover of each group\r\ncompany was liable to be taken into account for the purposes of evaluating\r\neligibility of an applicant under the PLI Scheme. The petitioner also\r\nprovided details with respect to the manufacturing processes and\r\ntransactions between the intra group companies and asserted that all of\r\nthem were engaged in independent manufacturing activities of automotive\r\ncomponents and consequently it would be incorrect for the respondents to\r\nhold that it did not meet the qualifying criteria. It specifically asserted that\r\nthe determination of group revenue is in accordance with the PLI Scheme\r\nand the Guidelines for the Production Linked Incentive Scheme for\r\nAutomobile and Auto Component Industry4\r\nframed and therefore the\r\ncomplaint was wholly unfounded. In these two emails the petitioner further\r\nasserted that although related party transactions are not liable to be\r\nexcluded for the purposes calculating the Global Group Revenue, even if\r\none were to assume that the said principle applied to its determination, a\r\nsum of Rs.81.39 crores between a holding company and its subsidiaries\r\ncould at best be considered for elimination. It would be pertinent to note\r\nhere that even if the aforesaid sum were to be excluded from the global </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">group turnover as declared by the petitioner, it would have still met the\r\nqualifying criteria prescribed under the PLI Scheme.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. The petitioner by a subsequent communication of 18 February 2022\r\nsubmitted further material and data for the consideration of the respondents.\r\nOn 28 February 2022 the petitioner offered the turnover of two other\r\ncompanies to be added to the total group turnover and contended that if the\r\nsame were taken into consideration, it would still meet the benchmarks\r\nplaced under the PLI Scheme. The petitioner asserted that in fact if the\r\nturnover of these two companies were to be taken into account, it would\r\nraise the group turnover to Rs.12,026 crores. The dispute essentially\r\nappears to have arisen with the respondents taking the position that\r\nrevenues generated on account of intra group transactions was liable to be\r\nexcluded while computing global group turnover. The respondents assert\r\nthat if intra group sales were to be excluded, the group turnover of JEVPL\r\nwould stand reduced by Rs.910 crores and thus take it below the threshold\r\nof Rs.10,000 crores.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. IFCI, which was the PMA for the purposes of the PLI Scheme,\r\nthereafter and on 29 April 2022 passed an order holding that the competent\r\nauthority on 25 April 2022 had decided to reject the application of the\r\npetitioner under the Scheme and to debar it as well as its group companies <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">from all future schemes and tenders of the MHI for the entire period of the\r\nPLI Scheme and upto 31 March 2027. That order records that the petitioner\r\nhad disclosed its Global Group Revenue to be Rs.10,590.74 crores while\r\nsubmitting financials in respect of its 16 group companies. It asserts that\r\nout of the aforesaid Global Group Revenue as disclosed, an amount of\r\nRs.910.54 crores constituted revenues from intra group sales of goods.\r\nIFCI accordingly held that these intra group sales had been taken into\r\nconsideration for the purposes of inflating the group revenue in order to\r\nenable the petitioner to meet the Basic Eligibility Criteria under the PLI\r\nScheme. This impugned communication further noted that if the aforesaid\r\namount were to be deducted from the declarations made, the Global Group\r\nRevenue would stand reduced to Rs.9680.20 crores and thus clearly fall\r\nbelow the minimum threshold stipulated in terms of the PLI Guidelines.\r\nIFCI concluded that the aforesaid action of the petitioner constituted a\r\nviolation of the Integrity Pact Undertaking and therefore justified the\r\ndebarment of the petitioner. It is these communications which are impugned\r\nby the petitioner in the instant writ petition.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>38. The principal ground of challenge to the impugned orders was based\r\non the assertion that there was a singular lack of notice to the petitioner\r\nwith respect to the proposed blacklisting and an opportunity to represent\r\nagainst the impending action. It must at the outset be noticed that the facts\r\nnarrated hereinabove, unerringly point towards a principled decision having\r\nbeen taken by MHI that the petitioner was ineligible to be extended the\r\nbenefits under the PLI Scheme. However, and undisputedly, MHI never\r\nplaced the petitioner on notice of its intention to hold that it was disentitled\r\nunder the PLI Scheme. The petitioner was neither placed on notice by MHI\r\nnor asked to represent against its proposed decision to hold the petitioner as\r\nbeing disqualified under the Scheme. In fact, MHI appears to have taken a\r\ndecision not only to hold the petitioner as being ineligible for benefits under <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the PLI Scheme, but also to debar the petitioner and its group companies\r\nfrom all tenders to be invited by it on account of a perceived submission of\r\nincorrect information. The decision of the MHI to the above effect is stated\r\nto be embodied in its communication to CESL dated 25 April 2022. That\r\ncommunication refers to a complaint having been received and the\r\neligibility of the petitioner having been “re-examined”. Upon reexamination, the Ministry appears to have come to conclude that incorrect\r\ninformation had been tendered by the petitioner and it had thus violated the\r\nIntegrity Pact Undertaking. That communication, as has been noticed\r\nabove, was addressed to CESL and appears to have been aimed at\r\npreempting the consideration of the tender of JBM Ecolife submitted in\r\nconnection with the procurement of e-buses. The disqualification\r\ncommunication with respect to JBM Ecolife is dated 26 April 2022.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>43. The Court then proceeds to deal with the “prejudice” argument as\r\ncanvassed by the respondents. As this Court had held in JBM Ecolife, the\r\nprecept of prejudice was expounded by our Courts bearing in mind that the\r\nprinciples of natural justice are not liable to be viewed in a “straitjacket”.\r\nOur Courts have consistently held that the rules of natural justice are not\r\ntools meant to find fault with State action even if the ultimate result be an <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">inescapable or irrefutable conclusion. The rules of natural justice fulfill the\r\nfundamental constitutional imperative of subserving justice. It is in that\r\ncontext that S.L. Kapoor linked it with the issuance of a “futile writ”. This\r\nCourt invoked that doctrine in JBM Ecolife in a situation where the\r\nconclusion was inevitable, and the invocation of its requirements would\r\nhave been an empty formality. The Court noted that the disqualification of\r\nJBM Ecolife was on account of a provision which was “self-activating”\r\nand where the issuance of a notice asking that party to proffer an\r\nexplanation would have been a futile exercise. It is to that extent and in\r\nsuch situations alone that the useless formality operates.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">44. To evaluate whether those principles would apply in the facts of the\r\npresent case, the Court would have to essentially come to the conclusion\r\nthat the Basic Eligibility Criteria as set forth under the PLI Scheme clearly\r\nrequired the petitioner to exclude revenue represented by intra-group\r\ntransactions. As would be evident from a perusal of the PLI Scheme as well\r\nas the PLI Guidelines framed in connection therewith, there was no\r\nunambiguous or unequivocal stipulation which required applicants to make\r\nthose deductions or adjustments while computing Gross Group Revenue.\r\nNeither the PLI Scheme as notified, nor the PLI Guidelines mandated the\r\nexclusion of that revenue for the purposes of computing total turnover in\r\nclear and unequivocal terms. The Court comes to this conclusion since\r\nneither Clause 3.2 of the PLI Scheme nor Clause 4 of the PLI Guidelines\r\nwhile defining Global Group Revenue explicitly mandate the exclusion of\r\nintra group sales. Similarly, para 2.16 of the PLI Guidelines while defining</span><span style=\"font-size: 12pt;\">  </span><span style=\"font-size: 12pt;\">“Global Group Revenue” also merely defines it to be the total revenue of\r\ngroup companies from automotive and auto component manufacturing\r\nactivity in a given year. The Court thus finds that the definition of Basic\r\nEligibility Criteria as well as the other stipulations of the PLI Scheme\r\nreferred to above woefully failed to place applicants on notice of a\r\nrequirement to keep out or deduct that income while quantifying group\r\nrevenue.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>45. The Court also takes into consideration the fact that the respondents\r\nhave failed to place for its consideration any principles formulated by an\r\nauthoritative body which mandates the exclusion of that revenue while\r\ndetermining group revenue. The attention of the Court has not been drawn\r\nto any industry recognised norm or accounting standard formulated by a\r\ncompetent and statutorily recognised authority which mandated the\r\nexclusion of intra group revenue. The applicants were thus left to evaluate\r\nfor themselves whether the terms of the policy did require an appropriate\r\ndeduction being made in that respect.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>46. The Court also bears in mind the unstinting stand of the petitioner\r\nthat it was lawfully entitled to take into consideration the revenues\r\ngenerated from sales between companies forming part of the group. It was\r\nits consistent stand that the aforesaid revenue was liable to be taken into\r\nconsideration for the purposes of computation of group revenue. It was\r\nspecifically asserted that the revenues generated by companies of the group\r\nwere in connection with independent manufacturing activity which was\r\nundertaken by each constituent of the group. It was on the aforesaid basis </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>that the petitioner asserted that the intra-group sales were not liable to be\r\nexcluded. The respondents while passing the impugned orders have failed\r\nto assign or record any reasons why this assertion was found to be wholly\r\nuntenable. It becomes pertinent to observe that the test in such a situation,\r\nand especially where blacklisting may be an inevitable fallout, cannot be\r\none which rests on a plausible view that may be possibly taken. In a case of\r\ndebarment or blacklisting and which in turn is based on an allegation of a\r\nfalse or misleading declaration, the decision of the State must meet a more\r\nstringent test. In such a situation it must be found that there was a deliberate\r\nconcealment or a misleading statement made which merited the power of\r\nblacklisting being exercised. In order for it to qualify as a deliberate\r\nmisstatement or misleading declaration it would have to be established that\r\nthe applicant knowingly and willfully made a false declaration in order to\r\nderive benefit. An allegation of a false declaration would not sustain where\r\nthe stipulations be either ambiguous or open to more than one plausible\r\ninterpretation. As this Court views the provisions contained in the PLI\r\nScheme and the PLI Guidelines which accompanied that Scheme, it comes\r\nto the firm conclusion that there was a singular lack of clarity on this\r\naspect. There was no clear and explicit stipulation which mandated\r\nexclusion of intra group sales from the computation of group revenue. In\r\nthe absence of such a prescription, the Court finds itself unable to hold that\r\nthe power to blacklist was justified</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>47. As observed hereinabove, the argument of the useless formality\r\ntheory being applicable would have been justified, if it were established that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">it was incumbent upon the respondents to exclude sales between entities\r\nforming part of a group based on some well recognised and established\r\nindustry norm or standard. It was imperative for the respondents to have\r\nproven that the same was an acknowledged and settled accounting principle\r\nwhich brook no doubt. However, it is significant to note that the impugned\r\norders do not rest on any such standards or principles that may have been\r\nformulated by a competent authority. The respondents in the course of their\r\noral submissions also did not rest their case on a normative or well established principle which required the exclusion of that revenue.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>48. It may be lastly observed that the fact that some applicants did\r\nexclude such revenue while computing group revenue cannot constitute a\r\nfactor, which may be considered germane or relevant for the purposes of\r\nanswering the issue which stands posited. The perception or understanding\r\nof a particular applicant, in the absence of a well-accepted norm, would be\r\na wholly unsound principle to adopt while framing an answer to this\r\nquestion. Consequently, and for all the aforesaid reasons it must be held\r\nthat the useless formality theory has no application in the facts of the\r\npresent case.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>49. Accordingly, the present writ petition is allowed</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '67cbb96f074b9e80e1ec10f49316fec8.jpg', '34d4d6439c7ae32588f11c9e79a6f388.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-11', 1, '', '', '2022-08-10 18:05:49', '2022-08-11 10:18:39');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2055, '4QlCbLZ3vJ9PqOmfAwRxA6Jq3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Financial dependency is not the Ark of The Covenant\'\'. Even the married sons and daughters are also entitled to compensation under the MVC Act. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Reliance General Insurance Company Limited Vs Gangappa Chinnappa Saunshi and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Miscellaneous First Appeal 102868 of 2014 decided on 4 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3. Factual matrix of the case of the claimants before the Tribunal is that on 12.04.2012 the Smt. Renuka W/o Gangappa Saunshi was travelling in tempo towards Hubballi to attend a marriage function and when the said vehicle reached near Yamanur, at that time a lorry bearing Reg.No.KA-25/C-19 came and dashed to the tempo from opposite direction. As a result, the Renuka sustained grievous injuries and immediately she was taken to PHC,</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Factual matrix of the case of the claimants before the Tribunal is that on 12.04.2012 the Smt. Renuka W/o Gangappa Saunshi was travelling in tempo towards Hubballi to attend a marriage function and when the said vehicle reached near Yamanur, at that time a lorry bearing Reg.No.KA-25/C-19 came and dashed to the tempo from opposite direction. As a result, the Renuka sustained grievous injuries and immediately she was taken to PHC, </b></font></span><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Navalgund, thereafter to KIMS Hospital, Hubballi and she succumbed during the course of treatment on account of accidental injuries. Hence, the claimants being the dependants, laid a claim before the Tribunal.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>Having heard the learned counsel for the parties and on perusal of the material on record, the following points would arise for consideration:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> i.<span style=\"white-space:pre\">	</span>Whether the Tribunal has committed error in not considering contributory negligence as contended by the insurance company?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> ii.<span style=\"white-space:pre\">	</span>Whether the Tribunal has committed error in considering the major and married daughters of the deceased as dependants?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>iii.<span style=\"white-space:pre\">	</span>Whether the Tribunal has committed any error in awarding higher compensation as contended in the appeal?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>iv.<span style=\"white-space:pre\">	</span>What order?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17. Regarding Point No.1: The main contention of the insurance company is that the tempo in which the deceased was travelling is a goods vehicle and she had been to attend the marriage and while returning to her native the accident has occurred in the curve and hence, contends that there is contributory negligence on the part of the driver of the tempo in which the deceased was travelling and hence the Tribunal ought to have taken contributory negligence aspect into consideration. In order to substantiate this contention first of all insurance company has not examined the driver of the offending vehicle, who is the right person to speak with regard to negligence and insurance company also not even examined the official witness of the insurance company to substantiate the said contention.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. Apart from that, the claimants have relied upon the FIR which is marked as Ex.P.1, wherein specific allegation is made against the driver of the offending vehicle and charge sheet is also filed against him which is marked as Ex.P.3 and both oral and documentary evidence is against the diver of the offending vehicle. When such being the case and in the absence of any contra evidence against the driver of the vehicle in which the deceased was travelling, I do not find any force in the contention of the learned counsel for insurance company and the contention that the deceased was travelling in a goods tempo cannot be a ground to fasten the liability on the other vehicle owner and insurance company since there is no material to invoke contributory negligence. The Court has to see whether the driver has contributed to an accident and the same is not found in the case on hand. Hence, I answer point No.1 in negative.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. Regarding point Nos.2 & 3: Now coming to the other two grounds which have been urged by the insurance company are that the married daughters of the deceased are not the dependants while claiming loss of dependency and other contention is that in the cross-examination of PW.1 it is elicited that the age difference between claimant No.1-husband and deceased-wife is only six years and he categorically admits that he was 64 years when he was examined in the year 2013.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25. Having considered the principles laid down in the judgements referred to supra, this Court has taken note of recent judgement of the Apex Court in Birender, wherein it is held that even married sons are entitled for compensation not only on conventional heads but also on loss of dependency. Hence, the very contention of the appellant-insurance company cannot be accepted. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26. This Court also would like to rely upon the judgement of the Division Bench of this Court in MFA No.118/2018 dated 26.03.2021, wherein also this Court by relying upon the judgement in Birender, held that even married sons are also entitled for compensation not only on conventional head but also on loss of dependency. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">27. The other contention of the insurance company is that 13 multiplier adopted by the Tribunal is erroneous and in order to substantiate the said contention except </font></span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">eliciting answers from cross-examination of PW.1 that deceased might have six years younger to him, nothing is on record and the Court has to take note of the age of the deceased based on documentary evidence. On perusal of material on record, the claimants have relied on Ex.P.4-postmortem report, wherein age of the deceased is mentioned as 48 years and in order to controvert the said age, respondents have not placed any material before the Tribunal and also not even examined any witnesses. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">28.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">No doubt I have already pointed out that an answer is elicited from the mouth of PW.1 regarding age difference and when the documentary evidence is available before the Court, the documentary evidence prevails against oral evidence and doctor who conducted postmortem has categorically mentioned the age of deceased as 48 years and hence, very contention of insurance company that Tribunal ought to have taken 9 multiplier and not 13 cannot be accepted.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>29. The Tribunal based on the Ex.P.4-postmortem report and while giving reasons also in the order it is mentioned that in order to prove the age of the deceased, the claimants have produced Ex.P.4 which shows the age as 48 years and also taken note of charge sheet which is marked as Ex.P.3, wherein also age of the deceased is mentioned as 48 years as on the date of accident. Hence, the Tribunal has taken the age of deceased as 48 years as on the date of accident and to rebut the said material, no other evidence has been placed before the Tribunal by the respondents. Hence, the said contention also cannot be accepted. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>30. It is also important to note that while assessing loss of dependency, the Tribunal has taken note of Ex.P.6 which is warranty card regarding purchase of durby sewing machine. The Tribunal has taken the income of the deceased as Rs.4,500/- and deducted 1/5th of the income towards personal expenses considering husband, daughters and also sons as dependants and the very contention that the Tribunal ought to have deducted 1/4th of the income cannot be accepted. Apart from that future prospects also has not been considered by the Tribunal while calculating loss of dependency and no appeal is filed by the claimants as against the quantum of compensation and having taken note of this aspect into consideration, I do not find any force in the contention of learned counsel for insurance company that exorbitant compensation has been awarded by the Tribunal. Hence, I answer point Nos.2 and 3 in the negative. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">31. Regarding point No.4:  </font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">ORDER</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>Appeal is dismissed. No cost.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6c2a54ca5f51b0aa4d9ca6a750536e52.JPG', 'e8081952c00c3a2d4e86af3a1a3c930b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-11', 1, '', '', '2022-08-10 18:34:37', '2022-08-11 08:27:20'),
(2057, 'Lh1fOpHJnslZhLaDWb0JJjjax', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Tenderer can show revenues from sales between companies forming part of group for the purposes of computation of the group revenue unless the tender conditions prescribe otherwise. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">M/S JBM\r\nElectric Vehicles Private Limited Vs Union of India and another.</span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">W.P. (C) 804 of\r\n2022 decided on 8 August 2022.</span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">Justice\r\nYashwant Varma.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">1. The\r\npetitioner, JBM Electric Vehicles Private Limited has petitioned this Court\r\nimpugning the letter dated 25 April and 29 April 2022 </span></b><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">issued by the Ministry of Heavy\r\nIndustries1 and IFCI Limited. The communication essentially debars the\r\npetitioner and its group companies from all future tenders and for the period\r\nof the Production Linked Incentive Scheme2 upto 31 March 2027. The aforesaid\r\naction is stated to have been taken upon it being found that the petitioner had\r\nfurnished incorrect information for the purposes of claiming benefits under the\r\nPLI Scheme. The second letter impugned in the writ petition is a communication\r\nfrom IFCI holding that the petitioner had submitted an application for\r\nextension of benefits under the PLI Scheme basing its Global Group Revenue to\r\nbe Rs. 10,590.74 crores. IFCI contends that on scrutiny it has been found that\r\nthe aforesaid declaration is incorrect since it also includes revenue of Rs.\r\n910.50 crores from intra-group sales. IFCI goes on to hold that the inclusion\r\nof that revenue enabled the petitioner to project that it met the eligibility\r\ncriteria. This action according to the respondents clearly amounted to a\r\nviolation of the Integrity Pact Undertaking submitted by the petitioner and\r\nconsequently warranted its debarment from all tenders of MHI that may be issued\r\nduring the pendency of the PLI Scheme and up to 31 March 2027. This\r\ncommunication also refers to the letter of the MHI dated 25 April 2022 referred\r\nto above. In order to appreciate the challenge which is raised in the writ\r\npetition it would be apposite to notice the following essential facts.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>2. On 23 September 2021 the Union\r\nGovernment announced the PLI Scheme for the automobile and auto component\r\nindustry. The PLI Scheme proposed financial incentives to boost domestic\r\nmanufacturing of advanced automotive technology products and to attract\r\ninvestment in the automotive manufacturing value chain. The Basic Eligibility\r\nCriteria was specified as being companies or group companies with an existing\r\npresence in India or globally in the automotive vehicle and components\r\nmanufacturing business having a Global Group Revenue of a minimum of Rs.10,000\r\ncrores</b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span style=\"font-size: 12pt;\"> </span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>4. On 11 February 2022 a Press Release\r\ncame to be issued which set forth the details of the 20 applicants who had been\r\napproved under the PLI Scheme. The name of the petitioner did not stand\r\nincluded in that list which was published. The petitioner is stated to have\r\nthen met with the officers of IFCI on 14 February 2022. It is alleged that in\r\nthe course of that interaction with the representatives of IFCI the petitioner\r\nwas apprised of a complaint having been received alleging that the Global Group\r\nRevenue, as </b><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">disclosed by the petitioner had been\r\ninflated and that it did not meet the benchmark of Rs.10,000 crores as stipulated\r\nunder the PLI Scheme. After the aforesaid meeting, the petitioner addressed two\r\nemails dated 15 and 17 February 2022 explaining that the complaint which\r\nessentially alleged that intra-group sales and revenues were liable to be\r\nexcluded while calculating the global group turnover, was incorrect and that\r\nthe turnover of each group company was liable to be taken into account for the\r\npurposes of evaluating eligibility of an applicant under the PLI Scheme. The\r\npetitioner also provided details with respect to the manufacturing processes\r\nand transactions between the intra group companies and asserted that all of\r\nthem were engaged in independent manufacturing activities of automotive\r\ncomponents and consequently it would be incorrect for the respondents to hold\r\nthat it did not meet the qualifying criteria. It specifically asserted that the\r\ndetermination of group revenue is in accordance with the PLI Scheme and the\r\nGuidelines for the Production Linked Incentive Scheme for Automobile and Auto\r\nComponent Industry4 framed and therefore the complaint was wholly unfounded. In\r\nthese two emails the petitioner further asserted that although related party\r\ntransactions are not liable to be excluded for the purposes calculating the\r\nGlobal Group Revenue, even if one were to assume that the said principle\r\napplied to its determination, a sum of Rs.81.39 crores between a holding\r\ncompany and its subsidiaries could at best be considered for elimination. It\r\nwould be pertinent to note here that even if the aforesaid sum were to be excluded\r\nfrom the global group turnover as declared by the petitioner, it would\r\nhave still met the qualifying criteria prescribed under the PLI Scheme.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>5. The petitioner by a subsequent\r\ncommunication of 18 February 2022 submitted further material and data for the\r\nconsideration of the respondents. On 28 February 2022 the petitioner offered\r\nthe turnover of two other companies to be added to the total group turnover and\r\ncontended that if the same were taken into consideration, it would still meet\r\nthe benchmarks placed under the PLI Scheme. The petitioner asserted that in\r\nfact if the turnover of these two companies were to be taken into account, it\r\nwould raise the group turnover to Rs.12,026 crores. The dispute essentially\r\nappears to have arisen with the respondents taking the position that revenues\r\ngenerated on account of intra group transactions was liable to be excluded\r\nwhile computing global group turnover. The respondents assert that if intra\r\ngroup sales were to be excluded, the group turnover of JEVPL would stand\r\nreduced by Rs.910 crores and thus take it below the threshold of Rs.10,000\r\ncrores.</b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span style=\"font-size: 12pt;\"> </span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>7. IFCI, which was the PMA for the\r\npurposes of the PLI Scheme, thereafter and on 29 April 2022 passed an order\r\nholding that the competent authority on 25 April 2022 had decided to reject the\r\napplication of the petitioner under the Scheme and to debar it as well as its\r\ngroup companies </b><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">from all\r\nfuture schemes and tenders of the MHI for the entire period of the PLI Scheme\r\nand upto 31 March 2027. That order records that the petitioner had disclosed\r\nits Global Group Revenue to be Rs.10,590.74 crores while submitting financials\r\nin respect of its 16 group companies. It asserts that out of the aforesaid\r\nGlobal Group Revenue as disclosed, an amount of Rs.910.54 crores constituted\r\nrevenues from intra group sales of goods. IFCI accordingly held that these\r\nintra group sales had been taken into consideration for the purposes of\r\ninflating the group revenue in order to enable the petitioner to meet the Basic\r\nEligibility Criteria under the PLI Scheme. This impugned communication further\r\nnoted that if the aforesaid amount were to be deducted from the declarations\r\nmade, the Global Group Revenue would stand reduced to Rs.9680.20 crores and\r\nthus clearly fall below the minimum threshold stipulated in terms of the PLI\r\nGuidelines. IFCI concluded that the aforesaid action of the petitioner\r\nconstituted a violation of the Integrity Pact Undertaking and therefore\r\njustified the debarment of the petitioner. It is these communications which are\r\nimpugned by the petitioner in the instant writ petition.</span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\"><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>38. The principal ground of challenge\r\nto the impugned orders was based on the assertion that there was a singular\r\nlack of notice to the petitioner with respect to the proposed blacklisting and\r\nan opportunity to represent against the impending action. It must at the outset\r\nbe noticed that the facts narrated hereinabove, unerringly point towards a\r\nprincipled decision having been taken by MHI that the petitioner was ineligible\r\nto be extended the benefits under the PLI Scheme. However, and undisputedly,\r\nMHI never placed the petitioner on notice of its intention to hold that it was\r\ndisentitled under the PLI Scheme. The petitioner was neither placed on notice\r\nby MHI nor asked to represent against its proposed decision to hold the\r\npetitioner as being disqualified under the Scheme. In fact, MHI appears to have\r\ntaken a decision not only to hold the petitioner as being ineligible for\r\nbenefits under </b><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">the PLI\r\nScheme, but also to debar the petitioner and its group companies from all\r\ntenders to be invited by it on account of a perceived submission of incorrect\r\ninformation. The decision of the MHI to the above effect is stated to be\r\nembodied in its communication to CESL dated 25 April 2022. That communication\r\nrefers to a complaint having been received and the eligibility of the\r\npetitioner having been “re-examined”. Upon reexamination, the Ministry appears\r\nto have come to conclude that incorrect information had been tendered by the\r\npetitioner and it had thus violated the Integrity Pact Undertaking. That\r\ncommunication, as has been noticed above, was addressed to CESL and appears to\r\nhave been aimed at preempting the consideration of the tender of JBM Ecolife\r\nsubmitted in connection with the procurement of e-buses. The disqualification\r\ncommunication with respect to JBM Ecolife is dated 26 April 2022.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>43. The Court then proceeds to deal\r\nwith the “prejudice” argument as canvassed by the respondents. As this Court\r\nhad held in JBM Ecolife, the precept of prejudice was expounded by our Courts\r\nbearing in mind that the principles of natural justice are not liable to be\r\nviewed in a “straitjacket”. Our Courts have consistently held that the rules of\r\nnatural justice are not tools meant to find fault with State action even if the\r\nultimate result be an </b><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">inescapable\r\nor irrefutable conclusion. The rules of natural justice fulfill the fundamental\r\nconstitutional imperative of subserving justice. It is in that context that\r\nS.L. Kapoor linked it with the issuance of a “futile writ”. This Court invoked\r\nthat doctrine in JBM Ecolife in a situation where the conclusion was inevitable,\r\nand the invocation of its requirements would have been an empty formality. The\r\nCourt noted that the disqualification of JBM Ecolife was on account of a\r\nprovision which was “self-activating” and where the issuance of a notice asking\r\nthat party to proffer an explanation would have been a futile exercise. It is\r\nto that extent and in such situations alone that the useless formality\r\noperates.</span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\"><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">44. To evaluate whether those\r\nprinciples would apply in the facts of the present case, the Court would have\r\nto essentially come to the conclusion that the Basic Eligibility Criteria as\r\nset forth under the PLI Scheme clearly required the petitioner to exclude\r\nrevenue represented by intra-group transactions. As would be evident from a\r\nperusal of the PLI Scheme as well as the PLI Guidelines framed in connection\r\ntherewith, there was no unambiguous or unequivocal stipulation which required\r\napplicants to make those deductions or adjustments while computing Gross Group\r\nRevenue. Neither the PLI Scheme as notified, nor the PLI Guidelines mandated\r\nthe exclusion of that revenue for the purposes of computing total turnover in\r\nclear and unequivocal terms. The Court comes to this conclusion since neither\r\nClause 3.2 of the PLI Scheme nor Clause 4 of the PLI Guidelines while defining\r\nGlobal Group Revenue explicitly mandate the exclusion of intra group sales.\r\nSimilarly, para 2.16 of the PLI Guidelines while defining</span></b><b>  “Global Group Revenue” also\r\nmerely defines it to be the total revenue of group companies from automotive\r\nand auto component manufacturing activity in a given year. The Court thus finds\r\nthat the definition of Basic Eligibility Criteria as well as the other\r\nstipulations of the PLI Scheme referred to above woefully failed to place\r\napplicants on notice of a requirement to keep out or deduct that income while\r\nquantifying group revenue.</b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>45. The Court also takes into\r\nconsideration the fact that the respondents have failed to place for its\r\nconsideration any principles formulated by an authoritative body which mandates\r\nthe exclusion of that revenue while determining group revenue. The attention of\r\nthe Court has not been drawn to any industry recognised norm or accounting\r\nstandard formulated by a competent and statutorily recognised authority which\r\nmandated the exclusion of intra group revenue. The applicants were thus left to\r\nevaluate for themselves whether the terms of the policy did require an\r\nappropriate deduction being made in that respect.</b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>46. The Court also bears in mind the\r\nunstinting stand of the petitioner that it was lawfully entitled to take into\r\nconsideration the revenues generated from sales between companies forming part\r\nof the group. It was its consistent stand that the aforesaid revenue was liable\r\nto be taken into consideration for the purposes of computation of group\r\nrevenue. It was specifically asserted that the revenues generated by companies\r\nof the group were in connection with independent manufacturing activity which\r\nwas undertaken by each constituent of the group. It was on the aforesaid\r\nbasis </b> <b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that the petitioner asserted that the\r\nintra-group sales were not liable to be excluded. The respondents while passing\r\nthe impugned orders have failed to assign or record any reasons why this\r\nassertion was found to be wholly untenable. It becomes pertinent to observe that\r\nthe test in such a situation, and especially where blacklisting may be an\r\ninevitable fallout, cannot be one which rests on a plausible view that may be\r\npossibly taken. In a case of debarment or blacklisting and which in turn is\r\nbased on an allegation of a false or misleading declaration, the decision of\r\nthe State must meet a more stringent test. In such a situation it must be found\r\nthat there was a deliberate concealment or a misleading statement made which\r\nmerited the power of blacklisting being exercised. In order for it to qualify\r\nas a deliberate misstatement or misleading declaration it would have to be\r\nestablished that the applicant knowingly and willfully made a false declaration\r\nin order to derive benefit. An allegation of a false declaration would not\r\nsustain where the stipulations be either ambiguous or open to more than one\r\nplausible interpretation. As this Court views the provisions contained in the\r\nPLI Scheme and the PLI Guidelines which accompanied that Scheme, it comes to\r\nthe firm conclusion that there was a singular lack of clarity on this aspect.\r\nThere was no clear and explicit stipulation which mandated exclusion of intra\r\ngroup sales from the computation of group revenue. In the absence of such a\r\nprescription, the Court finds itself unable to hold that the power to blacklist\r\nwas justified</b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span style=\"font-size: 12pt;\"> </span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>47. As observed hereinabove, the\r\nargument of the useless formality theory being applicable would have been\r\njustified, if it were established that </b><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">it was incumbent upon the respondents\r\nto exclude sales between entities forming part of a group based on some well\r\nrecognised and established industry norm or standard. It was imperative for the\r\nrespondents to have proven that the same was an acknowledged and settled\r\naccounting principle which brook no doubt. However, it is significant to note\r\nthat the impugned orders do not rest on any such standards or principles that\r\nmay have been formulated by a competent authority. The respondents in the\r\ncourse of their oral submissions also did not rest their case on a normative or\r\nwell established principle which required the exclusion of that revenue.</span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span style=\"font-size: 12pt;\"> </span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">48. It may be lastly observed that the\r\nfact that some applicants did exclude such revenue while computing group\r\nrevenue cannot constitute a factor, which may be considered germane or relevant\r\nfor the purposes of answering the issue which stands posited. The perception or\r\nunderstanding of a particular applicant, in the absence of a well-accepted\r\nnorm, would be a wholly unsound principle to adopt while framing an answer to\r\nthis question. Consequently, and for all the aforesaid reasons it must be held\r\nthat the useless formality theory has no application in the facts of the\r\npresent case.</span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\"><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">49. Accordingly, the present writ\r\npetition is allowed</span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n</p><p class=\"MsoNormal\"><o:p> </o:p></p>', 'bd46076743eec8a6d578e93274d356d8.jpg', '5cfd505159e8de049addbf62aa161922.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-11', 1, '', '', '2022-08-11 16:50:54', '2022-08-11 12:34:38'),
(2056, 'JvtUL4j05aWie9dJZkEJak4NL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Pendency of dispute regarding ownership of land is not a ground to deny electricity connection. Gujarat High Court  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Yogesh Lakhmanbhai Chovatiya Vs PGVCL.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R/Special Civil Application 6281 of 2021 decided on 2 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A.S. Supehia.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The electricity connection to the petitioners\r\nis denied only for the reason that the land, which\r\nis occupied by the petitioners, is in the name of\r\nthe Government and the Mamlatdar has initiated\r\nproceedings under Section 61 of the Gujarat Land\r\nRevenue Code, 1879 for removal of encroachment on\r\nthe land in question.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Learned advocate Mr.Raval appearing for the\r\npetitioners has placed reliance on the order dated\r\n27.01.2010 passed in Letters Patent Appeal No.91 of\r\n2010 and also relied upon provision of Section 43\r\nof the Electricity Act, 2003 (for short “the Act”) <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and has submitted that the provision refers for\r\nsupply of electricity to any owner or occupier of\r\nany premises. It is submitted that the petitioners\r\ncan be said to be “occupier” of the land in\r\nquestion and the respondents cannot deny the\r\nelectricity connection to them.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5. In the present writ petition, the petitioners\r\nhave stated that they are the owners of the\r\nconcerned agricultural land, on which the\r\nelectricity is sought however, the same has been\r\ndenied by the respondent authorities for the reason\r\nthat the petitioners have illegally occupied the\r\nGovernment land.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Section 43 of the Act specifically stipulates\r\nthat licensee, shall, on an application filed by\r\nthe owner or occupier of any premises, can supply\r\nof electricity to such premises.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Thus, the petitioners, who are the occupiers\r\nof the land, cannot be denied the electricity\r\nconnection only because dispute with regard to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">decision of the land in question is pending. The\r\nDivision Bench has observed that the company cannot\r\ndecide the disputed question of right and title and\r\nthe ownership or right of occupancy has no nexus\r\nwith grant of electrical connection to a consumer.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>10. Under the circumstances, the respondentCompany is directed to supply electricity\r\nconnection to the petitioners in the premises or in\r\nthe property, where they are presently staying and\r\noccupying the same.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11. After the order was dictated, learned advocate\r\nMr.Joshi has submitted that the petitioners will be\r\nsupplied electricity connection as per seriatim and\r\nall the names of the consumers, who are seeking\r\nelectricity connection are displayed on the\r\nwebsite.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. Under the circumstances, the respondent\r\nauthority shall include the names of the\r\npetitioners in such list and provide electricity\r\nconnection to the petitioners at the earliest in\r\naccordance with the list maintained by them.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>13. The present writ petition stands allowed. Rule\r\nmade absolute.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a2767be1384866e38e47cec71d7d2ff3.jpg', 'c996e8225d28f1d138ea7280772ec2bb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-11', 1, '', '', '2022-08-10 18:48:58', '2022-08-11 06:25:39'),
(2061, 'lNoCjEnpODYsV9A3ZmnPaOSz7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court declares creation of the Anti Corruption Bureau unconstitutional. ', '<p><b style=\"background-color: rgb(255, 255, 0);\">Judgment enclosed&nbsp;</b></p>', 'e9343e31272e5253c797914badc32731.JPG', 'f07d66d579197b678e233594d45004f1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-11', 1, '', '', '2022-08-12 01:49:17', '2022-08-11 15:19:48');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2058, 'WmOacLLD8LqKSmQlOOpWPU3cR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'In special drive to fill up backlog vacancies meant for reserved category candidates, creation of DPC becomes redundant since candidates considered for promotion invariably belong to the same reserved category. Supreme Court clarifies. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Union of India and others Vs Gopal Meena and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3314 of 2010 decided on 10 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Gupta and Justice Vikram Nath.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The present three appeals have been preferred by the Union of\r\nIndia; two appeals viz. Civil Appeal No. 3314 of 2010 and Civil\r\nAppeal No. 5933 of 2010 arise out of an order passed by the Central\r\nAdministrative Tribunal1\r\n, affirmed by the High Court of Delhi and\r\nHigh Court of Punjab & Haryana, directing separate zone of\r\nconsideration for promotion of Scheduled Caste/Scheduled Tribe\r\ncandidates to the post of Superintendent in the Customs and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Central Excise Commissionerate from the post of Inspector, whereas\r\nthe Civil Appeal No. 9436 of 2010 is directed against a similar\r\ndirection by the High Court of Delhi but in respect of Indo-Tibetan\r\nBorder Police for promotion to the post of Assistant Commandant\r\nfrom the post of Subedar Major Stenographer.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. For the sake of brevity, the facts are quoted from the Civil Appeal\r\nNo. 3314 of 2010. The grievance of the applicants2\r\n, belonging to the\r\nScheduled Tribes, was that there is backlog of vacancies for the post\r\nof Superintendent which have not been filled up for the reason that\r\nthe candidates are not available within the zone of consideration.\r\nTherefore, to fill up the 29 posts of Superintendent, it was prayed\r\nthat a separate zone of consideration be created for the Scheduled\r\nTribe candidates so that the vacancies in the cadre of\r\nSuperintendent meant for them could be filled up.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. It has been further contended that there cannot be a separate zone\r\nof consideration for each category of the officials. The zone of\r\nconsideration is in respect of the candidates falling in the seniority\r\nlist. The candidates belonging to Scheduled Caste and Scheduled\r\nTribe were given relaxation to extend zone of consideration up to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">five times of the vacancies. It is argued that the effect of the order\r\npassed by the High Court would be that all eligible candidates, at\r\nwhatever position in the seniority list, would fall within the zone of\r\nconsideration, though they may be lowest in the list. Such creation\r\nof zone of consideration is not in consonance with the efficiency in\r\nthe service. Still further, enlarging the zone of consideration for\r\nScheduled Caste and Scheduled Tribe to five times cannot be said to\r\nbe arbitrary, irrational or illegal, which could be struck down in\r\nexercise of power of judicial review.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. We find that the Tribunal and the High Courts have missed the real\r\ncontroversy. The Government of India had issued an Office\r\nMemorandum dated 26.8.2004 to fill backlog vacancies reserved for\r\nScheduled Caste and Scheduled Tribe in promotion quota as a\r\nspecial drive. Such Office Memorandum was not relating to the\r\nCustoms and Central Excise Commissionerate or the Indo Tibetan\r\nBorder Police but to all the employees of the Central Government.\r\nThe candidates in the Office of Customs and Central Excise\r\nCommissionerate submitted representations for consideration for\r\npromotion to the grade of Superintendents. Such representations\r\nwere rejected on 4.2.2005. The reason for rejection of the\r\nrepresentation was that the officers had joined Central Excise Delhi\r\nZone as Inspectors on inter-Commissionerate on transfer basis in\r\n2003. Therefore, they are too juniors to be included even in the\r\nextended zone of consideration.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. The order impugned in the Original Application was the order dated\r\n4.2.2005 rejecting the representations of some of the candidates for\r\npromotion that the candidates have joined Central Excise (Delhi\r\nZone) as Inspector on Inter Commissionerate transfer basis in the\r\nyear 2003. The Tribunal has not examined the question of seniority\r\non account of Inter Commissionerate transfer. The order dated\r\n4.2.2005 was set aside and a direction was issued to grant same\r\ntreatment to SC/ST candidates in ad hoc promotions as well as in\r\nregular promotions.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. We find that there are three situation of promotion which are\r\nrequired to be examined. One is backlog vacancies for which an\r\nOffice Memorandum dated 26.8.2004 was issued. Second is ad hoc\r\npromotions for which an Office Memorandum dated 30.4.1983 was\r\nissued followed by 30.9.1983 and 7.9.2000. Clause 7 of the Office\r\nMemorandum of 30.4.1983, as reproduced above, specifically states\r\nthat, for regular promotions, procedures and instructions laid down\r\nin the Brochure will continue to apply. For regular promotions, Office\r\nMemorandum has been issued on 24.12.1980, 22.4.1992 and\r\n6.1.2006 wherein zone of consideration was prescribed keeping in\r\nview the number of vacancies which are to be filled up.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. In the Original Application later filed, the candidates challenged the\r\nOffice Memorandum dated 6.1.2006 which is in relation to regular\r\npromotions. There is no parity between backlog vacancies covered\r\nin Office Memorandum dated 26.8.2004 and the regular promotion\r\ncovered in Office Memorandum dated 24.12.1980 and/or 6.1.2006.\r\nTherefore, the Tribunal as well as the High Court have completely\r\nmissed the issue involved in the subsequent applications filed by\r\nthe candidates. The grievance of the candidates, first in Original\r\nApplication No. 688 of 2005 was only filling up of backlog vacancies\r\nand not regular or ad hoc promotions. The Tribunal and the High\r\nCourt had missed the distinction between ad hoc promotions and<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. The validity of Office Memorandum dated 24.12.1980 has been\r\nupheld by this Court in P. Sheshadri. Since the validity of the\r\nOffice Memorandum has been upheld, the validity cannot be put to\r\ntest again on the basis of Office Memorandum for filling up the\r\nbacklog vacancies or ad hoc promotion.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. The distinction between a special drive for filling up backlog\r\nvacancies and regular promotion to candidates both from the\r\nreserved and the unreserved categories, is too obvious. While filling\r\nup vacancies by way of promotion on regular basis, a DPC is\r\nconstituted and the profile of the candidates coming within the zone\r\nof consideration is prepared. But in a special drive for filling up the\r\nbacklog vacancies meant for reserved category candidates, such an\r\nexercise become redundant. This is because all candidates who will\r\nbe considered for promotion, in a special drive, will invariably belong\r\nto the same reserved category, as otherwise it will cease to be a\r\nspecial drive.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. Similarly, the exercise undertaken for filling up vacancies on ad hoc\r\nbasis, stands on a different footing from the exercise undertaken for\r\nthe grant of regular promotions. The High Court as well as the\r\nTribunal fell into error on two aspects namely: -</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">(i) They did not address the issue whether there was a special\r\nrecruitment drive for filling up of backlog vacancies and\r\nwhether there was a failure to consider the case of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respondents; and</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(ii)</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">They applied the yardstick meant for ad hoc promotions to the\r\ncase of regular promotions, though the case of the candidates\r\nwas for unfilled backlog vacancies. This fundamental error of\r\nfocus has resulted in the Tribunal and the High Court\r\nanswering a question that did not arise.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n1. Therefore, we find the orders of the High Courts are clearly\r\nerroneous and not sustainable in law. Consequently, the orders\r\npassed for regular promotion by extending the zone of consideration\r\ndo not arise. The same are set aside and the appeals are allowed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9e39f4b4a9a2eaf0b01d603d0b266ad5.jpeg', '1987a15dcb60c1388033b58af5750d6a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-12', 1, '', '', '2022-08-11 16:54:02', '2022-08-12 10:11:38'),
(2059, 'fgXousTwzrWj7wfkWm8Z5Si3r', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Trial. ‘’Just like mythological Hamsa, (swan) Courts separate milk and water from a mixture of the two’’. Supreme Court replaces the old idiom ‘’sifting the chaff from the grain’’. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ramabora and another Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1697 of 2011 decided on 10 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Indira Banerjee and Justice V. Ramasubramanian.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. Aggrieved by the conviction for an offence under Section 302 IPC and the sentence of imprisonment for life handed over to them by the High Court of Karnataka, reversing the order of acquittal passed by the Sessions Court, accused Nos.1 and 2 have come up with the above appeal.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">3. The appellants herein were prosecuted along with 20 other persons, before the II Additional District and Sessions Judge, Bangalore, for alleged offences under Sections 143, 144, 148, 147, 448 and 302 read with Section 149 IPC. By a judgment dated 8.8.2001, all the accused </font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">except those against whom the prosecution abated, were acquitted by the Sessions Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17. But the above findings of the High Court appear to be illogical. The primary charge of the prosecution was that all the 22 accused, formed themselves into an unlawful assembly with the common object of committing the murder of the deceased and that all of them being members of the unlawful assembly were armed with deadly weapons like clubs, bettu kudli, kodli etc. and that they committed the offence of rioting, trespass and murder. All these charges have now been held not proved against all the accused including A­1 and A­2 and the only offence held proved against A­1 and A­2 is the one under Section 302 IPC. We do not know how, in the facts and circumstances of the case, the conviction of only 2 out of the 22 accused can be sustained and that too only for the offence under Section 302 when the allegation of unlawful assembly, common object, trespass, rioting etc. are held not proved against all of them. The State has not come up with any appeal against the acquittal of all the other accused.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>22. It is true that the principle “falsus in uno falsus in omnibus” may not have unadulterated application to criminal jurisprudence. The Courts have always preferred to do what Hamsa, the mythological Swan, is believed to do, namely, to separate milk and water from a mixture of the two </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23. Therefore, the High Court was right on first principles that the evidence of PW­1 and PW­4 cannot be rejected by invoking the theory of falsus in uno falsus in omnibus.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>24. But when there are glaring contradictions between the testimony of even these two witnesses on the type of material object used and even on the role of A­2, the very foundation of the case of the prosecution stood shaken.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>25. As a matter of fact, the Trial Court took note of the absence of evidence relating to the injuries suffered by PW­1. Nothing was stated by PW­1 in the FIR, about the injuries on her body, but she spoke about it in her evidence. Even the same was not corroborated by medical evidence. This is why the Trial Court disbelieved the evidence of PW­1 and PW­4.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>26. To overturn such a verdict of acquittal, handed over by the Sessions Court after disbelieving PW­1 and PW­4, the High Court should have come up with more stronger and cogent reasons than what has been recorded. The law on the scope of Section 378 of the Cr.P.C., is too well settled. Very recently this Court traced the law in Ravi Sharma vs. State (Government of NCT of Delhi) & Another3 . The impugned judgment of the High Court is not in accordance with the law on the point.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>27. In such circumstances, we are of the considered view that the conviction of the appellants herein by the High Court cannot be sustained. Therefore, the appeal is allowed and the impugned judgment of the High Court insofar as it relates to the conviction of appellants is set aside. The appellants shall be released forthwith, unless they are suffering incarceration in connection with any other case. No costs. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'deac56e0fdb9657034ea01379ff345d2.jpg', 'aa300f354e047c842de1854e7714ec9a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-12', 1, '', '', '2022-08-11 17:57:29', '2022-08-12 08:30:03'),
(2060, 'W09ZCxoPYBdT60EDwLGPLpBp5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'False recital made in a sale deed cannot be construed as a ‘statement made before the Sub-Registrar’ to attract penal provision of Section 82 of the Registration Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pushpavalli Vs The Sub Register Gandhinagar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Revision Petition 453 of 2013 decided on 19 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.B. Prabhakara Sastry.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The present petitioner was tried as accused by the Court of learned IX Addl.Chief Metropolitan Magistrate, Bengaluru, (hereinafter for brevity referred to as the `trial Court\') in C.C.No.28802/2005, for the offence punishable under Section 82 of the Registration Act, 1908, (hereinafter for brevity referred to as the `Registration Act\') and was convicted by its judgment of conviction and order on sentence dated 19.10.2012 and was sentenced accordingly. Aggrieved by the same, the accused preferred an appeal in Criminal Appeal No.697/2012, before the learned Presiding Officer, Fast Track Sessions Court XVII, Bengaluru City, (hereinafter for brevity referred to as the `Sessions Judge’s Court\'), which after hearing both side, dismissed the appeal filed by the accused by its judgment dated 17.04.2013. Being aggrieved by the same, the accused has preferred the present revision petition.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The respondent herein was the complainant in C.C.No.28802/2005, which was filed under Section 200 of Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as `Cr.P.C.), as a private complaint. It was the summary of the allegations made in the complaint by the respondent that on 10.11.2003, the present petitioner (accused in the trial Court) presented a Sale Deed for its registration before him (the complainant) who was discharging his duty as the Sub-Registrar of the office of the Sub-Registrar, Gandhinagar, Bengaluru, requesting for its registration in accordance with law.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Subsequently, on 23.06.2003, one Sri S.Swatantra Rao filed a complaint under Section 82 of the Registration Act claiming that the averment made as above with respect to the alleged loss of original Sale Deed was a false statement and that the original documents have been deposited by the accused with him for securing a loan amount of ?30 lakhs, out of which loan amount, a sum of ?20 lakhs is still due to be paid to him.  In that connection, said Sri S.Swatantra Rao was also said to have filed civil suit in O.S.No.4528/2005, before the City Civil Court, at Bengaluru. It is with these contentions, the complainant is said to have claimed permission under Section 83 of the Registration Act to commence prosecution and had filed a private complaint in the trial Court, which subsequently was tried in C.C.No.28802/2005. The trial Court by its impugned judgment dated 19.10.2012, convicted the accused for the offence punishable under Section 82 of the Registration act and sentenced her to undergo simple imprisonment for a period of two years and to pay a fine of ?5,000/- and in default of payment of fine, to further undergo simple imprisonment for a period of two months.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. In the light of the above, the points that arise for my consideration in this revision petition are:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Whether a recital made in a document submitted for registration, particularly in a Deed of Conveyance, be considered as a statement made before the Sub-Registrar in an enquiry or proceeding enabling exercise of power under Section 82 of the Registration Act, 1908? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>Whether the concurrent finding recorded by the trial Court, as well as the Sessions Judge’s Court that the accused committed the alleged offence punishable under 82 of the Registration Act, 1908, warrants any interference at the hands of this Court?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>13. It is not in dispute that the alleged recital about alleged loss of the original title deeds has been made by the accused in the Sale Deed presented by her before the Sub-Registrar on 10.11.2003. To that effect, the evidence of PW-1 is on record, which is further corroborated by the copy of the alleged Sale Deed tendered for registration on 10.11.2003, which is marked as Ex.P-5. It is based upon the said recital in the said Sale Deed, PW-2 Sri S.Swatantra Rao, who claims himself to be a retired IAS Officer, has filed a complaint under Section 82 of the Registration Act before PW-1, which complaint is marked as Ex.P-2. According to PW-2, the alleged documents which accused has shown as lost in her Sale Deed at Ex.P-5, was a false statement and those original documents were given to his custody as a security towards loan of ?30 lakhs said to have been given by him. However, after repayment of ?10 lakhs by the father of the borrower, still, a balance of ?20 lakhs is due to him, with respect to which, he has instituted a civil case in O.S.No.4528/2005 before the City Civil Court, at Bengaluru.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>17. A reading of Section 34 of the Registration Act with Rule 73 of the Registration Rules does not show that the Sub-Registrar has got any power to hold an elaborate enquiry into the validity of a document brought to him for registration. He is only expected to go through the contents of the same before registering the same and no more.  Though a Sub-Registrar cannot act mechanically and proceed to register every document that is presented before him for registration, however, he has to satisfy that the document produced before him are lawful in nature and parties before him are the Executant or his representatives, assignee or an authorised person of the Executant and he admits the execution of the document and the other party admits the document in his favour. If the Sub-Registrar comes to know by a reading of the document presented before him for registration that the Executant of the document has no right or manner to execute the said document or prima facie it is convinced to him that Executant is neither the owner nor the Power of Attorney Holder of the owner nor even an agent or authorised representative of the owner of the property, which is the subject matter of the registration, then, he may take further step of declining to register the said document.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>18. Even though Rule 41 of the Registration Rules provides for examination of a document by the Registering Officer, but, the said examination is only to ensure that the requirements prescribed in the Act and in the Rules have been complied with. If there is any informality in presentation of a nature which can be remedied, the Registering Officer has authority to give the party such information as may be necessary and return the fees and the document with a view to the document being presented again in due form. However, Rule 41 of the Registration Rules also does not empower the Registering Officer to probe into truthfulness of the recital made in a Deed presented before him for its registration. The Sub-Registrar cannot exercise the power of a Civil Court and decide any matter on truthfulness and the truth or falsity in the recital made in a Deed and hold a trial in that regard.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>20.... In the instant case, admittedly the accused has not made any statement before the Sub-Registrar/ complainant, but, the alleged statement is only a recital in a Deed of Conveyance presented by the accused for its registration, which is at Ex.P-5. Therefore, it cannot be held that there was any statement made by the accused, much less, before any Officer under the Act. Even if it is assumed  that  the  said  recital  was  a  false  recital, it cannot be taken that it was a statement made before the Sub-Registrar in any enquiry or proceeding. If at all PW-2 Sri  S.Swatrntra  Rao,  the  complainant  before  the Sub-Registrar, who filed his complaint as per Ex.P-2, was aggrieved by the recital made in Ex.P-5, then, it was open for him to initiate appropriate legal action against the present accused/petitioner in a manner known to law and in a competent Court by instituting either civil action or a criminal action. Admittedly, he has initiated a civil action against the present petitioner/accused by instituting a civil suit in O.S.No.4528/2005 before the City Civil Court at Bengaluru.  Therefore, the suitable action for the alleged false recital said to have been made in Ex.P-5 has already been initiated by the alleged aggrieved person by instituting O.S.No.4528/2005.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>23. In the instant case, as observed above, it is only after the present complainant received a complaint by PW-2 Sri S.Swatantra Rao as per Ex.P-2, he proceeded to secure permission from his higher authority under Section 83 of the Registration Act and proceeded to file a private complaint against the present petitioner (accused). However, since it is shown that the alleged falsity in the representation made by the accused was not in the form of any statement made before any Officer acting in execution of the Act or in any proceeding or enquiry initiated under the Act, but, it was only in a recital in a Deed of Conveyance, which recital also has not prima facie and on its face shown that it was false or unlawful or impossible, then, Section 82(a) of the Registration Act ought not to have been invoked by the complainant. However, without noticing these aspects, both the trial Court and the Sessions Judge\'s Court have proceeded to record the evidence led before them and pronounced the judgment of conviction and the Sessions Judge\'s Court further confirmed it respectively. Thus, when the very complaint itself was not maintainable, the trial Court ought not to have proceeded further in the matter or at least framed a question to decide regarding the maintainability of the complaint for the alleged offence under Section 82(a) of the Registration Act. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>24. In addition to the above, on the merits of the case also, when the evidence of PW-1 and PW-2 is seen, the evidence of PW-1 would only go to show that the accused has presented Ex.P-5 for its registration on 10.11.2003, however, the recital mentioned therein, which is extracted as above, later was objected to be not a true statement by PW-2, who filed his complaint before him (PW-1)  under  Section  82(a) of  the  Registration  Act, as such, the role of PW-1 is very very limited in instituting a proceeding against the accused.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>25. PW-2 though has led a detailed evidence and relied upon several of the documents, however, the sum and substance of his evidence is that the originals of the documents were with him and that he was exercising a lien against those documents, as such, the recital made by the Executant in Ex.P-5 that those documents were lost, was a false statement.  His alleged contention that the originals of those documents were with him and were entrusted to him as a security for the repayment of the alleged loan amount of ?30 lakhs was beyond the scope of the enquiry or the proceeding either to be held by the registering authority or under any action initiated under Section 82(a) of the Registration Act.  In the circumstances of the case, it was for him to establish the same through an appropriate legal action, in which direction, he has already instituted a civil suit against the present petitioner in O.S.No.4528/2005  before  the  City  Civil  Court,  at Bengaluru. This aspect, the trial Court did not consider in its proper perspective. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>On the other hand, the trial Court expected the accused before it to prove her innocence and also to disprove that the alleged original documents were not entrusted to PW-2 as a security.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>26. Thus, as rightly submitted by the learned Amicus Curiae, the trial Court ignored the principle that generally in a criminal proceeding, the burden of proving the guilt of the accused is upon the prosecution, but, it has shifted the said burden and expected the accused to prove her innocence and to disprove the allegation made against her. For the said reasons also, the impugned judgments do not sustain. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>ORDER:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>[i]<span style=\"white-space:pre\">	</span>The Criminal Revision Petition stands allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '997a91e69d39a0ea591a81c951adc9ec.JPG', '04da47006a769f7e2b980439e62cbff0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-12', 1, '', '', '2022-08-11 18:32:20', '2022-08-12 13:55:45');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2062, 'xyAOmSfXhBfoHFx3OGNG2iYVw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transactions between banker and borrower are purely contractual. Private lending agency/Bank does not fit into the term ‘other authorities’ within the meaning of Article 12 of the Constitution. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Nitesh Residency Hotels Private Ltd Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 2004 of 2022 decided on 8 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>BRIEF FACTS OF THE CASE:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a) Petitioner, a Private Limited Company is incorporated under the provisions of Companies Act, 1956, with the sole purpose of developing a hotel namely, ‘The Ritz-Carlton-Bangalore’, for providing accommodation and worldly services. The Hotel was sought to be established on a property which petitioner had obtained by a registered lease deed dated 11.01.2007 with ARCHDIOCEASE of Bangalore.  On the assurances & representations of the petitioner, the third respondent – Bank sanctioned the credit facilities which would include a Term Loan of Rs.291, 00, 00, 000/-, granted in March, 2016. The leasehold rights were furnished by way of security for the repayment coupled with certain personal guarantees & hypothecations. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b) The Loan Agreement was entered into on 31.03.2016 and the petitioner had executed a Deed of Undertaking on the same date. Petitioner had specifically declared that it has a clear & marketable title and, transferable interest over the Hotel Ritz-Carlton which was free from any prior charge, lien, encumbrance or litigations. However, the said lease was terminated way back in the year 2014 itself and the dispute was in the arbitration proceedings, a retired judge of this Court being the sole arbitrator. The lender – Bank states that it was not given any inkling of the same. Petitioner was also granted an additional Temporary Overdraft facility of Rs.100,00,00,000/- during the Covid-19 Pandemic pursuant its Letter dated 25.11.2020, the lender-Bank being kept in complete darkness as to the arbitral proceedings. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(c) The lesser vide Letter dated 08.01.2021 informed the lender-Bank about the arbitral award passed on 07.11.2020 upholding the termination of lease and rejecting petitioner’s Counter claim for a sum of about Rs. 600 Crores. A challenge to the same before the Commercial Court in COM.AP No. 4/2021, having been rejected the matter is now pending in appeal before a Division Bench of this Court. Petitioner having remained in default, its debt came to be classified as NPA. By the impugned Letters, the entire credit facilities have been recalled on the ground of fraud, misrepresentation & default. A Demand Notice u/s 13(2) of the SARFAESI Act, 2002 has also been issued. Aggrieved by all this, petitioner is before this Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">(d) The respondent – Bank has filed the Statement of Objections resisting the writ petition contending that: the third respondent is not an instrumentality of the State under Article 12 of the Constitution and therefore, Writ jurisdiction cannot be invoked against its actions; petitioner has got an alternate & equally efficacious remedy against the impugned action and therefore, it should be relegated to the same; petitioner has defrauded the lender-Bank and therefore, the prudent decision to recall the credit facilities cannot be faltered; petitioner having remained in outstanding debts disregarding demand notices, it’s Loan Account has been classified as NPA and therefore, the impugned SARFAESI Notice cannot be voided. It is also contended that the petitioner has not approached the Court with clean hands and he has secured reprieve ex parte, without disclosing the true facts.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Having heard the learned Counsel for the parties and having perused the petition papers, this Court declines indulgence in the matter for the following reasons:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">A.<span style=\"white-space: pre;\">	</span>AS TO RESPONDENT BANK NOT BEING ‘STATE’ UNDER ARTICLE 12 :</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">(i) The respondent – Bank, being a private lending agency, apparently does not fit into the term ‘other authorities’ within the meaning of Article 12 of the Constitution in the light of Apex Court decision in R.D SHETTY  vs.  INTERNATIONAL  AIRPORTS  AUTHORITY  OF INDIA1, as rightly contended by its learned Senior Advocate, Mr. Dhyan Chinnappa. Its business is regulated by the RBI Norms does not ipso facto establish a pervasive  control by the RBI or the Central Government, in every activity of business. The response of the Bank to arguably detrimental acts of its borrower, made in the course of its commercial dealings cannot be approximated to an order of a statutory authority, justifying the invocation of remedy at the hands of Writ Court. The principles on which a Bank’s response to its customers have to be examined lie in the realm of private law as contradistinguished from judicial review ordinarily undertaken under Articles 226 & 227. A perusal of Bank’s Letters dated 05.02.2021 (Annexure-F) & 07.04.2021 (Annexure-J) whereby credit facilities have been recalled at once reveals that the transaction has the overtones of commercial elements; despite vociferous submissions made on behalf of the petitioner, sufficient public law elements warranting invocation of writ jurisdiction are not demonstrated. Therefore, in matters like this, a Writ Court cannot undertake examination of the same, as if it is an administrative action amenable to judicial review.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii) When the preliminary issue as to maintainability of the Writ Petition is raised, what needs to be examined is not invariably the status of answering respondent as ‘State’ or its ‘instrumentality’ but the ‘essential nature’ of its action called in question. Since the enactment of the Constitution, our system has moved from the formality of ‘status’ of an entity to the substance of its ‘function’, while adjudging the claim for writ remedies. In other words, even if the respondent Bank answers the description of ‘other authorities’ under article 12, that per se may not justify invocation of constitutional jurisdiction. Conversely, even if the respondent does not answer the said description, its action may still be susceptible to judicial review should it be animated  by  sufficient  public  law elements vide LIC OF INDIA v. ESCORTS INDIA LTD6, which is not the case here. Heavy reliance placed by the petitioner on Central Government’s Guidelines Emergency Credit Line Guarantee Scheme (hereinafter ‘ECLGS’) does not much come to its aid, regardless of its arguable statutory origin, to complain before the Writ Court about the impugned action of the Bank. Reasons are not far to seek: Firstly, the Scheme does not exclude the exercise of Bankers Prudence which as of necessity avails in a reasonable measure while making commercial decisions of the kind. Banks handle public money as trustees and therefore, consistent with ‘public trust norms’ they should be allowed to take certain decisions as would prove prudent in the given circumstances. Secondly, though petitioner may be right in saying that the ECLGS Loan Scheme answers the generic definition of ‘law’ given under Article 13(3) of the Constitution still that does not advance his case inasmuch as the same is not put in challenge as being repugnant to Part III Rights. On the contrary, petitioner wants to found right to relief on the basis of said scheme.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>C.<span style=\"white-space:pre\">	</span>AS TO CULPABLE CONDUCT OF BORROWER QUA THE BANK:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) Even after suffering an arbitral award of enormous liability, petitioner on 03.12.2020 secured additional credit facility for rupees 100 crore under GECL Scheme without giving any inkling about the said arbitral award which upheld the termination of lease in question rejecting petitioner’s counter claim for hundreds of crores of rupees. Petitioner’s challenge to the arbitral award at the hands of Commercial Court having been negatived, presently a further challenge is said to have been pending before a Division Bench of this court, is beside the point. There was a duty owed by the petitioner to the respondent-Bank to disclose about the notice of termination of lease when it had first applied for a huge loan furnishing the said lease deed as one of the securities for repayment; it also owed the duty to disclose this when it was availing the said additional credit facility when already there was an arbitral award.<span style=\"white-space:pre\">	</span>However<span style=\"white-space:pre\">	</span>clandestinely<span style=\"white-space:pre\">	</span>withheld<span style=\"white-space:pre\">	</span>that<span style=\"white-space:pre\">	</span>crucial information from the bank.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>D. AS TO<span style=\"white-space:pre\">	</span>BANKER’S PRUDENCE AND HUSBANDING ITS FUNDS:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) Petitioner is not a peasant or a petty farmer who has availed some frugal loans for mitigating the hardships of life. It is an incorporated company purporting to be worth crores of rupees. Its Managing Director & other Directors have participated in contracting the loans in hundreds of crores of rupees. A customer owes to the Bank a duty to disclose all facts and circumstances that would in the ordinary course of business figure in the decision making process as to the intended loan transaction. This duty becomes more pronounced when such transactions involve huge loans & liabilities. A perusal of the petition papers leaves no manner of doubt as to clandestine failure on the part of borrower in discharging this duty, to say the least. ‘Thou art weighed in the balance and found wanting’ aptly applies to the case of petitioner</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Therefore, impugned action of the lender Bank cannot be said to be vulnerable for challenge in writ jurisdiction.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>E.<span style=\"white-space:pre\">	</span>AS TO EMERGENCY CREDIT LOAN GUARANTEE SCHEME AND BANKER’S PREROGATIVE:<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) The ECLG scheme promulgated by the Central Government which the petitioner’s counsel heavily banked upon in support of his case, at its guideline 18 (xiv) imposes an obligation on the lender bank to secure its interest by taking all reasonable measures. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>When the lender Banks in given facts & circumstances of the case take a decision as dictated by the prudence, for abruptly recalling the credit facilities, it is not for the courts to sit in appeal over their wisdom. Writ Courts neither have means nor the expertise to re-evaluate the “prudential decisions” of the Banks that are made in the ordinary course of their commercial transactions with accumulated wisdom in the trade.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>F.<span style=\"white-space:pre\">	</span>AS TO CULPABLE CONDUCT OF PETITIONER QUA THE COURT:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) Petitioner had secured an ex parte interim order without disclosing certain material and relevant facts. Had the petitioner averred in the petition about his not disclosing to the bank about the termination of lease in question followed by arbitral proceedings, when he was borrowing from the bank a huge sum of Rs. 323 crore in March 2016 initially & whilst availing additional loan of Rs.100 crore in December 2020, i.e., after suffering the arbitral award, this Court would not have favoured him with reprieve of the kind. Just mentioning about the termination of lease & arbitral award, in the petition averments would not do, to say the least. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) The Apex Court time and again has warned that the cases of unscrupulous litigants should be thrown out at the threshold vide S.P.CHENGALVARAYA NAIDU (DEAD) BY LRS vs. JAGANNATH (DEAD) BY LRS11.Petitioner has suppressed about the availability of alternate remedy in law. The petitioner seeks to call in question the Notice issued u/s 13(2) of the SARFAESI Act, 2002. There is an alternate and more efficacious relief availing to the borrower/noticee for doing this, by invoking remedial provisions of the Act. Writ remedy is not the panacea for all such arguable legal injuries vide Apex Court decision in PHOENIX ARC PRIVATE LIMITED VS. VISHWA BHARATI VIDYA MANDIR. No extraordinary circumstances are demonstrated from the records despite vociferous submissions of petitioners’ counsel warranting grant of relief in constitutional jurisdiction.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In the above circumstances, the Writ Petition being devoid of merits, is liable to be dismissed and accordingly, it is, costs having been reluctantly made easy.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0bfcb6203fee73f5f279aaf817d29a6a.JPG', 'f0d32fa29ef6303a960fa53e988c53cc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-13', 1, '', '', '2022-08-12 18:04:13', '2022-08-13 13:55:14'),
(2066, '8xZNGnAVPWW8CpqYRFHKmGmIG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Intra-Court appeal is maintainable against an interlocutory order passed in an Election Petition under the Representation of the People Act, 1951. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Election Commission of India Vs Ravishivappa Padasalagi and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">OSA 100001 of 20222 decided on 29 July 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Krishna S. Dixit and Justice P. Krishna Bhat.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">3. BRIEF FACTS OF THE CASE:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(a)<span style=\"white-space: pre;\">	</span>The general elections to constitute 15th Karnataka Legislative Assembly were held in May 2018. However the Speaker had disqualified 17 members of Legislative Assembly vide Orders dated 25.07.2019 & 28.07.2019. This was put in challenge before the Hon’ble Supreme Court in W.P. (C) No.922/2019 & connected cases. To fill the vacancies accruing because of aforesaid disqualification, the appellant ECI vide Press Note dated 21.09.2019 had announced the schedule for Bye-Elections in respect of 15 Constituencies. This was followed by the Election Notification dated 23.09.2019.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(b)<span style=\"white-space: pre;\">	</span>The Apex Court whilst examining the legality of the Disqualification Orders is said to have orally observed that the postponement of the Bye-Elections was desirable till after the final orders are passed on the pending challenge.  This was on 26.09.2019. On 27.09.2019, the extension Notification was issued by the appellant-ECI by rescheduling the time lines prescribed under the aforesaid Election Notification dated 23.09.2019. The Apex Court vide Order dated 13.11.2019 dismissed W.P.No.992/2019 & connected matters and thereby upheld Speaker’s Orders that had disqualified 17 MLAs, however curtailing the duration of their disqualification.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(c)<span style=\"white-space: pre;\">	</span>The appellant-ECI conducted the elections on 09.12.2019 in terms of amended notification dated 27.09.2019. The 2nd respondent herein was elected to the Legislative Assembly from 03-Athani Assembly Constituency. His election has been challenged by the 1st respondent in the subject Election Petition. One of the issues framed in the E.P. relates to power of the ECI to postpone the elections, once the same were notified. </span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">4. Having heard the learned counsel for the parties and having perused the appeal papers, we are inclined to grant indulgence in the matter for the following reasons:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">A.<span style=\"white-space: pre;\">	</span>AS TO MAINTAINABILITY OF INTRA-COURT APPEAL:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(i) The entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. Concepts familiar to common law and equity must remain strangers to Election Law unless statutorily embodied. An election petition is a strict statutory proceeding. The legal position emerging from a catena of decisions of the Apex Court is that outside the statutory provisions, there is no right to dispute an election.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(ii) Section 80 of the 1951 Act provides that an election inter alia to the State Legislature can be called in question only by filing an election petition in accordance with its provisions.  Such a petition has to be presented to the High Court on one or more of the grounds specified in sub-section (1) of Sec.100 & Sec.101 of the said Act within 45 days reckoned from the date of election of the Returned Candidate.   In  HARI  SHANKER  JAIN  vs.  SONIA  GANDHI, (2001) 8 SCC 233, the Apex Court observed that the designated Election Judge functions as a High Court and not as a Special Tribunal or as a Special Court or as persona designata. When power to hear a dispute under a statute is conferred on the High Court then the dispute has to be determined according to rules of practice and procedure of this Court and in accordance with the provisions of the Charter under which that Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction vide NATIONAL SEWING THREAD CO. LTD. Vs. JAMES CHADWAICK AND BROS LTD., AIR 1953 SC 357.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(iv) The person subpoenaed has no discretion to disobey the requisition. Whether subpoena of the kind falls within the term ‘order’ employed in Section 4 of the 1961 Act, needs to be examined, from that view of the matter. In matters like this, the word ‘order’ employed in the above provision has to be liberally construed consistent with the requirement of doing justice to the aggrieved.  An argument to the contrary, would defeat the very object of such a provision the same proving to be only a dead letter of law in black print and therefore, cannot be countenanced.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">B.<span style=\"white-space: pre;\">	</span>AS TO LEAVE TO APPEAL:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(i) The appellant happens to be the Election Commission of India which is a creature of the Constitution vide Article 324. The Apex Court in JYOTI BASU vs. DEBI GOSHAL (1982) 1 SCC 691 has held that the election disputes are not cases at common law or equity and the proceedings are conducted in a special jurisdiction created by statute and therefore, persons other than who are contemplated under Section 82 of the 1951 Act cannot be joined as parties. There is a catena of decisions wherein arraying of the Election Commission as a party to the election disputes is deprecated by the Apex Court. Therefore, the Commission has justifiably sought for leave to file this appeal, it being not a party to the E.P. Denial of leave would cause a great injustice to the Commission and enormous hardship to the Ex-Chief Election Commissioner i.e., against whom subpoena has been issued. Therefore, leave needs to be and accordingly, is granted in terms of subject application accompanying the appeal.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">C.<span style=\"white-space: pre;\">	</span>AS TO WHETHER CHIEF ELECTION COMMISSIONER OR EX-CHIEF ELECTION COMMISSIONER CAN BE CALLED AS WITNESS:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(i) As already mentioned above, an election petition is tried by the High Courts substantially in accordance with the provisions of CPC, 1908 vide Section 87(1) and the provisions of the Indian Evidence Act, 1872 are deemed to apply to these proceedings vide 87(2) of the 1951 Act. After pleadings are completed, issues have been framed in the EP; additional issue relating to validity of postponement of the election is also there.  Section 5 of the 1872 Act deals with the right to produce evidence, in any suit or proceedings, relating to the existence of non-existence of every fact in issue, and also to prove such other facts which may be declared relevant to the fact in issue, by virtue of the provisions contained in sections 6 to 55. The object of this section is to restrict the investigation made by Courts within the bounds prescribed by general convenience.  Of no fact can evidence be given unless it be either a fact in issue or one declared under other sections. Thus, evidence of all collateral facts, which are incapable of affording any reasonable presumption as to the principal matters in dispute, is precluded from production to save public time.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(ii) The subject application for subpoena has been moved by the contesting respondent herein in the light of additional issue. What were the facts & circumstances that lead to issuance of the notification postponing the elections cannot be the subject matter of oral evidence of the Commissioners of the Election Commission of India which is a multi-member body, and which takes institutional decisions inter alia under the provisions of the Constitution, the RP Act, 1950 & RP Act, 1951. </span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(iii) Ordinarily, in civilized jurisdictions functionaries of the constitutional bodies are not subjected to subpoena. Since they have to act and take significant decisions in the discharge of duties fearlessly. Otherwise, they run the fear of being called as witnesses and that may push them to defensive mode affecting public interest. The circumstances that resulted into issuance of the subject notification has to be gathered from the official records of the Commission. A very strong case has to be made out for summoning the members or ex-members of constitutional bodies. The reason as to why the Election Commission of India cannot be made a party to the election petitions gives sufficient indication as to why its members or ex-members cannot be summoned as witnesses.  As already mentioned above, the proviso to Section 87 of the 1951 Act has vested discretion in the High Court hearing the election petitions in this respect. A perusal of the records drives us to a conclusion that there is absolutely no justification for the contesting respondent herein for seeking subpoena against the Ex-Chief Election Commissioner.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(iv) It hardly needs to be stated that subpoening an official as witness is one thing and summoning of official records, is another. In the former, the exercise of power is circumscribed depending upon the constitutional status and function of the person concerned and in the latter, it is not. It is all a matter of discretion and prudence of the Court. Of course, any discretion has to be exercised in accordance with the rules of reason & justice, said Lord Halsbury more than a century ago vide SHARP v. WAKEFIELD (1891 AC 173). Constitutional functionaries or ex-functionaries cannot be summoned as witnesses just for askance. The contention that these functionaries do not figure in the “Exemption Class” earmarked by CPC is too feeble a ground for issuing subpoena to them.  Ordinarily the provisions of law that carve out an “Exempted Class of Subpoena” do not intend to make such class exhaustive in the sense that all those de hors the class can be summoned as witness at askance. In matters like these a host of factors figure for consideration.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(v) The above having been said, we hasten to add that it is always open to parties to the election petition to seek an order at the hands of learned judge trying the election dispute to summon the records or copies thereof even from the Election Commission of India, by making out a case therefor.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">In the above circumstances, this appeal succeeds; the impugned  order  of  subpoena  qua  the  Ex-Chief  Election Commissioner, i.e., Sri Sunil Arora is set at naught, costs having been made easy.</span></font></span></p>', '11966d0ad1391c4943813496b18fe11f.jpeg', 'c174e52295794d8c538d063d57469a77.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-17', 1, '', '', '2022-08-12 23:47:34', '2022-08-17 12:19:11');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2064, 'SoiEXIOys6PLqDMgmF6B9hsLA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Severance of land due to acquisition for railway line. Unacquired portion, the value of which is diminished cannot be awarded the same compensation as that of the acquired portion. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Union Of India Vs Ramchandra and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5006-50010 of 20211 decided on 11 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Gupta and Justice Vikram Nath.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">1. These appeals arising out of judgment dated 29.6.2017 are being\r\ntaken up for decision together. Civil Appeal Nos. 5006-5010 of 2022 are\r\nfiled by the Union of India to reduce the amount of compensation from\r\nRs.19 per square feet and also challenging the grant of compensation\r\nfor the entire land owned by the Company - Sagar Maize Products Ltd.1\r\n,\r\nwho is owner of 2.038 hectares in Village Maksi. Civil Appeal No. 5031 </span><span style=\"font-size: 12pt;\">of 2022 is preferred by the Company claiming enhancement of\r\ncompensation of the acquired land to Rs.40/- per square feet.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>\r\n2. The Company purchased an area of 0.361 hectares of Survey\r\nNos.1927/2, 1928/2 and an area of 1.317 hectares of Survey No. 1929\r\non Ujjain Road in Village Maksi in the year 1986-87. After purchase of\r\nthe land, the Company got permission to convert the agricultural land\r\nto use for industrial purposes and has also started civil work for\r\ninstallation of the factory for which certain pillars were raised.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Aggrieved by the determination of the market value of the land\r\nacquired, the land owners including the Company sought reference\r\nunder Section 18 of the Act. The Reference Court awarded a\r\ncompensation of Rs.40/- per square feet for the land acquired and also\r\nfor the entire land of the Company admeasuring 2.038 hectares on the\r\nground that the unacquired land cannot be utilized for the purpose\r\nintended to be used by the Company.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. In respect of 26,325 square feet land for laying of the railway line, the\r\nReference Court awarded compensation of Rs.10,53,000/-. For the\r\nremaining land of 1,93,077 square feet, the Reference Court held that\r\nit is not possible to establish the industry as the railway line passes\r\nthrough Survey Nos. 1928 and 1929. It was held that the distance of 30\r\nmeters is required from the railway line for development work, hence\r\nas no construction work could be carried out, therefore, the entire land\r\ncannot be utilized for any purpose. Thus, compensation @ Rs.40/- per\r\nsquare feet was awarded for the entire land purchased by the\r\nCompany, apart from the statutory benefits awarded to the Company\r\nand to the other land owners. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. As per the map produced by the Company, on the left side of the\r\nrailway line (East), the land measures 42940 + 10497 = 53437 square\r\nfeet, whereas the remaining land measures 58892 + 80271 = 139163\r\nsquare feet on the right side of the railway line (west). This is a\r\ncompact piece of land abutting the road from Maksi to Ujjain. The first\r\nquestion which is required to be determined is as to what extent, land\r\non both sides of the railway line would be part of acquisition. As per\r\nthe Company, the land of 30 meters on both sides of railway line is the\r\nland required by the railways as a part of the acquisition after leaving\r\n15 feet area on both sides of railway track. Such argument is based\r\nupon a communication dated 19.12.1991 from the Urban & Rural <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Investment Department, Madhya Pradesh that it is necessary to leave\r\na minimum distance of 30 meters as regard to any other development\r\nworks from demarcation of railway line. Learned counsel for the\r\nCompany relies upon Para 3718 of the Indian Railways Way and Works\r\nManual wherein the fencing is to be provided on 30 meters of actual\r\nbusy station yards on either side. As per the Company, the\r\ndemarcation of railway line is after 15 meters of the railway line,\r\nmeaning thereby 45 meters from the railway track.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. Thus, the entire process of determination of the market value by the\r\nReference Court is contrary to the established principles of\r\ndetermination of the market value of the acquired land as the sale of\r\ndeveloped land for the purpose of residential plots cannot be made\r\nbasis for acquisition of undeveloped agricultural land. Still further, the\r\nacquired land can be said to be 41,771.32 square feet but the\r\ncompensation has been awarded for the entire land of the Company as\r\nagainst the small area which was acquired for the railway line, though\r\nthe balance land is owned and is in possession of the Company.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. The market value of Rs.25/- per square feet by the High Court has been\r\narrived at on the basis of statements of some of the witnesses. No sale\r\ninstance of the acquired land has been produced, not even the sale\r\ndeed by which the Company has purchased the land almost 3 years\r\nprior to the acquisition. Such sale instance would have been the best\r\nyardstick to arrive at the market value of the acquired land. The High\r\nCourt awarded Rs.19/- per square feet as the compensation of the\r\nentire land acquired. Though we are unable to agree with the\r\nreasoning, but in the absence of any other alternative to determine\r\nmarket value, we do not wish to interfere with the market value <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">assessed by the High Court.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. Now we shall deal with the amount of compensation for the land\r\nsituated on the eastern side of the railway track on account of\r\nseverance of the same from the rest of the land. Section 23 of the Act\r\nspecifies the factors to determine the amount of compensation to be\r\nawarded for the land acquired. Clause thirdly is for determining\r\ndamages sustained by the person interested at the time of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Collector’s taking possession of the land by reason of severing such\r\nland from other land.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. A reading of the abovesaid judgment shows that there was an option\r\nwith the appropriate Government to acquire the entire land without\r\npublication of any fresh notification if the appropriate Government was\r\nof the opinion that the claim of compensation on account of severing of\r\nthe land is unreasonable or excessive. The Union has not exercised\r\nsuch option. Therefore, the compensation has to be determined\r\nkeeping in view of the fact that the land is continued to be owned by\r\nthe Company but its effective use stands diminished to large extent.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. As discussed above, we have found that the land situated on the\r\nwestern side is 139163 square feet (1.29 Hectare), which is not a small\r\narea from any angle, therefore, the appropriate Government was\r\njustified in not acquiring the said land and for the reason that the claim\r\nof compensation of such land is unreasonable or excessive. In fact, the\r\nCompany had no claim in respect of the land situated on the western\r\nplank of the railway line.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. In respect of the land situated on the eastern side, the first impression\r\nis that the land is severed but if the plan produced by the Company is\r\nexamined, there is land of other land owners as well. Therefore, it is\r\nnot the entire land which has become unapproachable or land locked.\r\nBecause of the railway line, may be the Company has to take a detour <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to approach such land but not that the substantial portion of the land\r\ncannot be used for any of the ancillary works of the Company. On\r\naccount of the fact that the Company can approach the land on the\r\neastern side by taking a detour, the Company will incur an additional\r\ncost, therefore, the Company is entitled to such additional cost.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. The process of determining compensation by the Reference Court is\r\nwholly fallacious. Thus, the appeal of the Company claiming <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">enhancement of the compensation @ Rs.40/- per square feet is\r\nuntenable. Even the compensation determined by the High Court is\r\nquestionable but we do not find any reason to interfere in the present\r\nappeal under Article 136 of the Constitution. Furthermore, the\r\nCompany shall be entitled to Rs.9.5 per square feet in respect of land\r\nsituated on the eastern side after leaving 30 meters of the buffer zone\r\nbut without any benefits under Section 23(1-A) and Section 23(2) of\r\nthe Act.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>30. The reference court determined compensation on account of\r\nconstruction in the shape of pillars raised now forming part of\r\nunacquired land situated on the western side of railway track as Rs.\r\n14,34,300/- is not in dispute. Thus, the said amount is maintained.\r\nConsequently, Civil Appeal No. 5031 of 2022 filed by the Company is\r\ndismissed whereas Civil Appeal Nos. 5006-5010 of 2022 filed by the\r\nUnion are allowed in the following manner:\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(i) The land owners including the Company shall be entitled to\r\ncompensation of their land situated within 30 meters from the\r\nmiddle of the railway track on both sides @ Rs.19 per square\r\nfeet. The Company shall be entitled to compensation on\r\naccount of pillars raised amounting to Rs. 14,34,300/- as well.\r\nThe land owners including the Company shall be entitled to\r\nstatutory benefits under Section 23(1-A) and Section 23(2) of\r\nthe Act on such land.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) In respect of land after the extent of 30 meters on the western\r\nside of the railway track and abutting the road from Maksi to\r\nUjjain, no compensation would be payable.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iii) In respect of remaining land after the extent of 30 meters on\r\nthe eastern side of the railway track, the Company shall be\r\nentitled to compensation on account of severance of land\r\n@Rs.9.5 per square feet but such compensation shall be\r\nwithout any benefits under Section 23(1-A) and Section 23(2)\r\nof the Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '62317ac69ce88936ae0ca6a768eb3291.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-16', 1, '', '', '2022-08-12 19:13:19', '2022-08-16 10:26:45'),
(2065, 'BpE6YVaOS7GORnLIckud8LxTK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. Accused ‘must be’ and not merely ‘may be’ guilty before a Court can convict. Supreme Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ram Niwas Vs State of Haryana<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 25 of 2012 decided on 11 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B.R. Gavai and Justice Pamidighantam Sri Narasimha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. This appeal challenges the judgment and order passed by the High Court of Punjab & Haryana at Chandigarh dated 16th March 2009, thereby dismissing the appeal filed by the accused/appellant­Ram Niwas, which was filed challenging the judgment and order dated 11th/12th January 2005 passed by the learned Sessions Judge, Sonepat, thereby convicting the appellant for the offences punishable under Section 302 and 201 of the Indian Penal Code, 1860 (“IPC” for short) and sentencing him to suffer rigorous imprisonment for life and to a fine of Rs.5,000/­, in default of payment of fine to further undergo rigorous imprisonment for two years under Section 302 IPC and to suffer imprisonment for three years and to a fine of Rs.2,000/­ in default of payment of fine to further undergo rigorous imprisonment for one year. Both the sentences are directed to run concurrently</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The prosecution case, in brief, is thus:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.1 Deceased Dalip Singh, Bhim Singh (P.W.10), and the complainant Deep Chand (P.W.9) are brothers. Pale, son of Bhim Singh (P.W.10), was married to Sunita, daughter of Chander Singh and the sister of the accused/appellantRam Niwas. After the death of Pale, his wife Sunita along with her minor son went to her parental house in village Rewli. Deceased Dalip Singh, Bhim Singh (P.W.10), and complainant ­Deep Chand (P.W.9) wanted Sunita to be married to Rampal son of deceased Dalip Singh. As such, on 7th March 2003, all three of them had gone to the house of Chander Singh, father of the accused/appellant ­Ram Niwas with the proposal of remarriage of Sunita with Rampal son of deceased Dalip Singh. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.2 It is the prosecution case that all three of them reached village Rewli and went to the house of Chander Singh, father of the accused/appellant­ Ram Niwas at around 5.00 p.m. on 7th March 2003. At around 7.30 p.m., deceased Dalip Singh and accused/appellant­ Ram Niwas started taking liquor and at that time the proposal of marrying Sunita with Rampal was mentioned. On such mention being made, accused/appellant ­Ram Niwas got angry and started abusing deceased Dalip Singh. However, complainant­Deep Chand (P.W.9) and Bhim Singh (P.W.10) intervened and pacified the accused/appellant­ Ram Niwas. Thereafter, both of them after having their meals went to the first floor to sleep.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.4 It is further the prosecution case that after the complainant ­Deep Chand (P.W.9) and Bhim Singh (P.W.10) came to the courtyard, they felt the smell of the burnt human body. The complainant ­Deep Chand (P.W.9) again enquired from the accused/appellant­ Ram Niwas about deceased Dalip Singh. Then the accused/appellant­ Ram Niwas became nervous and replied that when deceased Dalip Singh had proposed to marry Sunita with his son Rampal then he had pressed the throat of deceased Dalip Singh and strangulated him to death. In order to destroy the evidence, the dead ­body of the deceased Dalip Singh was burnt, but the same could not be burnt completely. The dead body of deceased Dalip Singh was concealed in Paraal (Paddy Fodder). Thereafter, the complainant­ Deep Chand (P.W.9) and Bhim Singh (P.W.10) after removing the Paddy straw found the partially burnt dead body of deceased Dalip Singh wrapped in a piece of Plastic palli. Thereafter, the complainant­ Deep Chand (P.W.9) and Bhim Singh (P.W.10) expressed their resentment towards the accused/appellant­ Ram Niwas, and on hearing their resentment, the accused/appellant­ Ram Niwas fled away from the spot. The complainant ­Deep Chand (P.W.9) and Bhim Singh (P.W.10) went to their village Bhawar and returned back with other family members to village Rewli in the evening. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17. The only other circumstance on which the prosecution relies is the seizure of ‘ash’ kept in the plastic bag on the memorandum of the accused/appellant­Ram Niwas under Section 27 of the Evidence Act. Satish Kumar (P.W.11), the Investigating Officer (I.O.), in his deposition has clearly admitted that the disclosure statement made by the accused/appellant Ram Niwas was made in the lock­up of the police station. He has further admitted that though independent witnesses were available, inasmuch as the Police Station is in the heart of the city, he had not called any independent witness as ‘Panch’ of the said memorandum. As such, the reliance on the said seizure also is of no help to the prosecution case. It is further to be noted that Dr. Sanjeev Malhotra (P.W.5), in his evidence, has admitted that it was difficult to recognize the face of the dead body. From the postmortem, it is also not established that the death was homicidal. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18. The prosecution case rests on circumstantial evidence. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19. This Court has held that there has to be a chain of evidence so complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It has been held that the circumstances should be of a conclusive nature and tendency. This Court has held that the circumstances should exclude every possible hypothesis except the one to be proved. It has been held that the accused ‘must be’ and not merely ‘may be’ guilty before a Court can convict. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>21. In the present case, we find that the prosecution has utterly failed to establish the chain of events which can be said to exclusively lead to the one and only conclusion, i.e., the guilt of the accused. In that view of the matter, we find that the judgment and order of the learned Sessions Judge and that of the High Court are not sustainable. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>22. The appeal is therefore allowed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23. Pending applications, if any, shall stand disposed of. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '50324b1b2d4cc98279b639d6998add1b.jpg', '61c18b7740af2fd20ba7916d4ef70826.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-16', 1, '', '', '2022-08-12 20:10:04', '2022-08-16 06:29:29'),
(2067, 'YhevCqTOX3IIuaUuBCBOcrpMT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Reference and incorporation in a contract. Mere reference to another document in a contract will not incorporate terms of the document into the contract. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">State of Karnataka and others Vs Prestige Estates Projects Limited and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">W.A. 6845 of 2017 decided on 29 July 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Acting Chief Justice Alok Aradhe and Justice J.M. Khazi.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">2. Facts leading to filing of these appeals in nutshell are that M/s Joy Ice creams (Bangalore) Pvt. Ltd., (hereinafter referred to as \'the Joy Ice Creams\' for short) is the owner of land bearing Sy.No.160 and Sy.No.157(P) of Pattandooru, Agrahara Village, where it had established a factory for manufacture of ice creams. In the middle of the aforesaid land held by the Joy Ice Creams, land measuring 3 acres and 23 guntas in Sy.No.42 of Pattandooru, Agrahara Village (hereinafter referred to as \'the schedule land’ for short) is situate. GOK issued a notification dated 16.09.1981 under Section 3 of Karnataka Industrial Areas Development Act, 1966 (hereinafter referred to as \'the 1966 Act\' for short) declaring the schedule land as an industrial  area  for  the  purposes  of  the  1966  Act. Thereafter, GOK leased out the schedule land on 20.10.1989 to Joy Ice Creams and executed a lease deed in its favour.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">22. Thus it is evident that in the sale deed, reference only has been made to the memorandum dated 31.03.2006 and the same has not been incorporated in the sale deed. Therefore, the sale is an absolute sale. Even otherwise, no sanctity can be attached to the condition incorporated in the memo dated 31.03.2006 issued by Deputy Commissioner as the same is contrary to Rule 28(2) of the Rules.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">24. Thus it has been held that transfer of Schedule land in favour of Prestige Estates has not been made in violation of any condition of grant. The aforesaid order has been passed by a quasi judicial authority viz., Deputy Commissioner in exercise of statutory powers under Section 136 of the Act. The aforesaid order has attained finality and therefore, binds the parties. The aforesaid order cannot be set at naught by a party to the lis viz., GOK by an order dated 06.08.2015.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">26. Thus a grant of land made under the Rules is liable to be cancelled, when the same has been obtained by making false and fraudulent representations and has been made in contravention of the Rules. The land in question was allotted to KIADB and its not the case of either the GOK or the Association that the grant of land in favour of KIADB was made by playing fraud or was made in contravention of the Rules. Therefore, there is no justifiable reason in law to cancel the grant of land in question.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">27. In view of the findings recorded in order dated 15.06.2012 passed by the Deputy Commissioner, in exercise of powers under Section 136(3) of the Act, the contention of Additional Government Advocate that the schedule land could not have been granted in favor of Joy Ice creams does not deserve acceptance.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">28. In the instant case, the land has been allotted to KIADB with the prior approval of the GOK. The contention of the learned Additional Government Advocate that the grant has been made in contravention of Rule 20(1)(c) of the Rules does not deserve acceptance. Similarly, the contention that KIADB had not authority to execute the sale deed in favour of Joy Ice Creams is misconceived as the same is contrary to Rules. Similarly the contention that the order of grant was made in favour of Joy Ice creams for an unauthorized purpose is misconceived. There is no material on record to hold that the land has been either allotted or conveyed in contravention of the Rules and therefore, the contention that Joy Ice creams and Prestige Estates have played fraud with the GOK does not deserve acceptance.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">29. So far as the submission that the construction of residential apartments has been made unauthorizedly, suffice it to say, that the construction has been raised after approval of the building plan by the Bangalore Development Authority and after the work order was issued on 19.01.2010 and 20.10.2010 respectively. The aforesaid building plan and the work order issued by the Bangalore Development Authority, which is the planning authority has not been questioned by anyone. Therefore, the contention that the residential apartments have been constructed unauthorizedly does not deserve acceptance. The same is therefore repelled.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">In view of preceding analysis, we do not find any merit in these appeals, the same fail and are hereby dismissed.</span></font></span></p>', '1bc19c0c1961226b56edeef7d934cdcc.JPG', '7069f54010e2720da8a4a1e1f6f3bfe7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-13', 1, '', '', '2022-08-13 17:28:14', '2022-08-13 07:04:35'),
(2068, 'OjhAut7rHOC8fUfAzJXm3pEPL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Foreign award in respect of parties situated outside India can be executed in India if property of the award debtor is situated within India Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Citi Future Corporation Vs Ducgiang Chemical and Detergent Powder Joint Stock Company.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>AP-EFA 1 of 2022 decided on 18 February 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice Ritu Raj Awasthi and Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The international commercial arbitral award dated 18.08.2021 has been delivered by the Sole Arbitrator in international arbitration proceedings held in Singapore, the final award being registered with the Singapore International Arbitration Centre (SIAC) Registry of Awards as Award No.87 of 2021. It is the said award that is sought to be enforced in these proceedings. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. A perusal of the award as also cause title of the present proceedings indicates that both the petitioner and respondent are body corporates which are incorporated outside India, the petitioner having its registered office at Korea and the respondent having its registered office at Vietnam. It is in this background that a question has arisen as to whether an international commercial arbitral award rendered outside India between the parties who have no connection to India can be enforced in India by filing proceedings under Sections 47, 48 and 49 of the Arbitration and Conciliation Act, 1996 (for short, “the Act of 1996”). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Part II of the Act of 1996 deals with New York Convention Awards, under which Sections 44 to 52 find place. Section 44 of the Act of 1996 deals with foreign awards and defines the same as an arbitral award on differences between persons arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India. Section 44(b) contemplates a situation of an award being delivered in one of such territories as the Central Government, being satisfied that reciprocal provisions have been made may, by notification declare to be territories to which the Convention applies. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Thus, for an award to be recognised as a foreign award, it has to be as regards a commercial relationship as per the laws in India and rendered in a territory where the Convention has been made applicable by a suitable notification by the Central Government. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Section 46 of the Act of 1996 makes any foreign award enforceable under the Act within India. Section 47 of the Act of 1996 requires the original award or a copy thereof, duly authenticated in the manner required by the law in the country it is made, the original agreement for arbitration or a duly certified copy thereof and such evidence as may be necessary to prove that the award is a foreign award.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. The explanation to Section 47 provides for the definition of `Court\' under which means the High Court having original jurisdiction to decide the questions forming the subject-matter of the arbitral award if the same had been the subject-matter of a suit in its ordinary original civil jurisdiction and in other cases, in the High Court having jurisdiction to hear appeals from decrees of courts subordinate to such High Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. The arbitral award being an international commercial arbitral award is not in dispute, the award being rendered in Singapore is not in dispute, the enforceability of the said award in India is not in dispute in view of the notification issued by the Central Government. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. In the peculiar facts and circumstances of the case, would this Court exercise its jurisdiction when both the parties are not connected to India and they are not corporate bodies established within the territorial limits of the Republic of India, more particularly within the territorial limits of this Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. A foreign award under a New York Convention has been given a special status. India being a signatory to the said New York Convention it is required that all countries which are signatories to the New York Convention enable execution of a foreign arbitral award rendered in a reciprocating country in the event of a property against which the arbitral award is sought to be enforced is situated within the jurisdiction of that particular country. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17. In this background considering that the above application which is filed under Sections 44 to 52 of the Act of 1996 which deals with New York Convention awards under Chapter I of Part II of the Act of 1996 and the obligations of the Republic of India in terms of Article 51 (c) of the Constitution of India, we are of the considered opinion that this Court could exercise jurisdiction to enforce a foreign award in the event the properties of the respondent against which the enforcement is sought for is situated within the territorial limits of this Court in view of later part of Section 2 (e) (ii) of the Act of 1996 as also later part of the explanation to Section 47(2) of the Act of 1996.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> Hence, the above petition is taken on record.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e573ed6490a70bcca833fe09ec518471.JPG', '3fab047d410908c085f3af11b17a83d9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-16', 1, '', '', '2022-08-13 18:02:33', '2022-08-19 02:48:51');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2070, 'byjURSsWQHzUAGIRI2ApBXppu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Instigating Police personnel to go on mass leave and to participate in the strike seeking redressal of grievances do not constitute the offence of Sedition. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>V. Shahsidhar Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 6376 of 2019 decided on 28 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Charge sheet has been laid for the offence punishable under Sections 124A, 166 r/w 120(B) and 109 of IPC, Section 5 of the Karnataka Essential Services Maintenance Act, 2013, Section 3 of the Police (Incitement to Disaffection) Act, 1922 and Section 4 of the Police Forces (Restriction of Rights) Act, 1966, alleging that the accused No.1 who is a dismissed Police Constable formed a Police Association namely Akhila Karnataka Police Maha Sangha (Welfare Body) and stated to be spearheading a movement to instigate the lower rung of the Police force to act against the present elected Government, and that he along with other accused conspired to instigate the Police force to bring hatred and disaffection against the State Government and amongst the general public, with an intention to destabilize and bring down the present Government. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. It is further submitted that the petitioners had made public speeches, and used electronic social media such as, Facebook, WhatsApp, to create hatred and disaffection against the State Government among the Police force and the public at large. The petitioner-accused No.1 is said to have a Facebook account, on which he had posted provocative photographs with captions like \'Sippayee Dungay\' and said to have addressed messages to the rank and file of the Karnataka Police force to go on a mass leave on 4.6.2016, throughout Karnataka State and to join hands in their war against the Government and the Police Department. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4. Thereafter, the Government to control the situation issued a notification dated 31.05.2016, declaring that the Karnataka State Police Force as an essential service under the Karnataka Essential Services Maintenance Act, 2013.  However, it is claimed that this did not deter the petitioners to continue with their onslaught through the various media to instigate the members of the Police force not to buckle.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. To constitute the commission of offence punishable under Section 124A of IPC, a person must bring or attempts to bring into hatred or contempt to excite disaffection towards the Government  established  by  law  in  India.   The  charge  sheet material does not disclose that the petitioners-accused by words or spoken or written were trying to instigate the lower rung of the Police and were only agitating the appalling conditions services under which they function. In the absence of any corroborative material that the petitioners-accused by words, either spoken or written brought or attempted to bring excite disaffection towards the Government, the filing of the charge sheet is without any substance. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. To constitute the commission of an offence punishable under Section 120A and B of IPC, two or more persons must have agreed to do or cause to be done an illegal act. In the present case, the charge sheet material does not disclose that the petitioners-accused have conspired with each other to do an illegal act, except the allegation that the petitioners instigated the Police personnel to go on a mass leave and to participate in the strike to be held on 4.6.2016. In the absence of any essential ingredients so as to constitute the commission of the offence of criminal conspiracy, the filing of the charge sheet for the offence punishable under Sections 120A and B of IPC is also held to be without any substance. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. To constitute the commission of an offence punishable under Section 166 of IPC, a public servant must have intentionally disobeyed any direction of the law. In the present case, there is no material placed along with the charge sheet that the petitioners-accused have deliberately disobeyed any direction of the law. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. To constitute the commission of an offence punishable under Section 5 of the Karnataka Essential Services Maintenance Act, 2013, any person must instigate or incite any other person to take part in, or otherwise acts in furtherance of strike which is illegal under this Act. In the present case, the alleged strike which was called by the petitioner-accused did not take place in view of the notification dated 31.05.2016, declaring that the Karnataka State Police Force as an essential services under the Act, 2013 and in view of the notification dated 31.05.2016, the registration of the FIR against the petitioner-accused on 2.6.2016 for the strike alleged to have been called by the petitioner-accused which did not take place is imperssible. Hence, the charge sheet filed against the petitioner-accused for the offence punishable under Section 5 of the Act is also without any substance.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 12. To constitute the commission of offence punishable under Section 3 of the Police (Incitement to Disaffection) Act, 1922, a person must have intentionally caused or attempted to cause any act which he knows is likely to cause disaffection towards the Government establishment by law. In the present case, the charge sheet material does not disclose that the act of the petitioner has resulted in disaffection towards the Government establishment by law. However, the petitioner-accused have only acted in promoting the welfare of the Police personnel and furtherance   of members of the Police force.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 13. In view of the functioning clause contained in Section 4 of the Police Forces (Restriction of Rights) Act, 1966, charge sheet filed against petitioner-accused for the offence punishable under Section 3 of the Police (Incitement to Disaffection) Act, 1922 is also impermissible. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. The Commission has recommended to repeal the Police Act 1922 since this was a colonial Act introduced to curb nationalist activities making it an offence to spread disaffection among the police and also the Act does not describe what amounts to disaffection, and as a significant curb on the freedom of speech. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. In the absence of any essential ingredients so as to constitute the commission of the offence punishable under section 3 of the said act, filing of the charge sheet for the aforesaid offence against the petitioner-accused is also impermissible. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">16. To constitute the commission of offence punishable under Section 109 of IPC, a person must have abated an offence.In the present case, in the absence of any abatement of commission of offence punishable under the provisions of 109 of IPC, the filing of the charge sheet for the aforesaid offence is also held to be one without any substance.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17. ORDER:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petitions are allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7d17bd21d84a47d9bd8a73a0aa1e39da.jpeg', '669ac114bce2cfefc2334409a7f35c9d.docx', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-17', 1, '', '', '2022-08-15 16:46:33', '2022-08-17 10:24:29'),
(2071, '5XcAFTLPlT6xs7I8raG5PDfPo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Employee working under contractor sustaining injuries does not fall under the definition of ‘worker’ as defined under Section 2(l) of the Factory Act. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vineet Agarwal and others Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 7688 of 2019 decided on 13 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Private complaint was filed under Section 200 of Cr.P.C for the offence punishable under Section 92 of the Factories Act, 1948 for having contravened section 7A(2)(d) alleging that the 1st petitioner is the occupier of the factory premises and the 2nd petitioner is the Manager of the 1st petitioner\'s company and they had entered into a memorandum of understanding with M/s A.I. Potia and Company for dismantling the Glycerin Plant. In pursuance of the said memorandum of understanding, the contractor commenced the work of dismantling of the existing structures and roof of Glycerin plant in the month of October 2016 and on 31.12.2016. One of the worker under the contractor namely Nirmal was carrying out gas cutting operation for sheets and the chequered plate connected between the two steel pillars, after cutting the chequered plate, all the contract workers including the injured Nirmal came down to the Ground floor. The chequered plate which was cut earlier was not fully separated from the pillar and did not fall down as it was struck between the steel pillars. To release the chequered plate from the pillar, the contract workers made an attempt by tying the chequered plate by manila rope and started pulling it down to the ground floor. They could not pull down the chequered plate as it was struck firmly between steel pillars and as per the advice of the supervisor, Nirmal, the injured contract worker started cutting the base plate of the steel pillar thinking that if they shake the steel pillar, the chequered plate gets released from the pillar and falls down. While he was cutting the pillar base plate bolts, it started leaning down and when he tried to move away from the spot, the said steel pillar fell down towards south direction and bounced back and one edge of the pillar hit the left leg of the Nirmal and injured the thigh portion sustaining severe injury. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. It is further alleged that, the said accident occurred due to the inaction on the part of the petitioners-accused in not taking safety measures. The learned Magistrate took cognizance of the aforesaid offences and issued summons. Taking exception of the same, this petition is filed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. It is undisputed that the injured had sustained injuries while he was carrying out work as an employee under the contractor who was entrusted with the work of dismantling of the Glycerin plant. The co-ordinate bench of this Court in Crl.No.100117/2019 relying on the decision of the Hon\'ble Kerala High Court in the case of State of Kerala -Vs- V.M. Patel, reported in 1960 KLJ 1524 and also decision of the Hon\'ble Supreme Court in the case of M/S Rohtas Industries Ltd. -vs-Shri Ramlakhan Singh & Others reported in 1978 (2) SCC 140 has held that when a person was not employed and employer had no control and supervision over the manner in which work was to be done, the occupier and manager of the factory cannot be made liable to the accident in question. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. In the present case, injured was working under the control of the contractor and the petitioners had no control and supervision in the work to be carried out by the injured. Hence, the employee working under the contractor sustaining injuries does not fall under the definition of \"worker\" as defined under Section 2(l) of the Factory Act and as such the cognizance taken by the learned Magistrate for the offence punishable under Sections 92 of the Act, for contravening section 7A 2(d) of the Act is impermissible.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i) Criminal Petition is allowed. </b><br></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '18e8a847086f13c74c3b5622754174da.jpeg', 'f38d7e0a250f0f1e415072ecfc053010.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-16', 1, '', '', '2022-08-15 16:51:29', '2022-08-16 08:46:23'),
(2074, 'YI1rLKHQ2jjMja35dUJSnXOQG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque bounce cases. Standard of proof for accused to rebut presumption is that of \'preponderance of probabilities\'. Jharkhand High Court  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mohammad Sayeed Vs The State of Jharkhand and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Revision 178 of 2014 decided on 10 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Deepak Roshan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The prosecution case in short is that a complaint\r\ncase was filed by Opposite Party No.2 on 01.07.2009\r\nmainly stating therein that the parties are known to each\r\nother and out of acquaintance, in order to help the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner in his business, Opposite Party No.2 had given\r\nRs.7,20,000/- during the period March, 2007 till July,\r\n2007 through several account payee cheques from time to\r\ntime as well as cash also and the account payee cheques\r\nwere encashed by the accused/petitioner and accordingly\r\nthe petitioner received Rs.7,20,000/-. It has been further\r\nstated that the petitioner undertook to repay the said\r\namount within two years from the date of receipt and in\r\nlieu thereof had issued post-dated account payee cheque\r\nbearing No.891585 dated 27.12.2008 drawn upon Canara\r\nbank, Mango Branch, Jamshedpur. As the accused did not\r\npay the said amount within two years, the complainant\r\n(Opposite Party No.2) firstly presented the cheque on\r\n27.12.2008 in Bank but the same was dishonoured and\r\nlater on, on the assurance of the petitioner, he claimed to\r\nhave re-presented the cheque on 18.05.2009, but the same\r\nwas dishonoured and a Cheque Return Memo dated\r\n19.05.2009 was issued intimating Opposite Party No.2\r\nregarding the dishonor of the said cheque bearing No.\r\n891585 due to insufficient fund. The complainant claims to\r\nhave thereafter given a notice to the petitioner on\r\n10.06.2009 requesting the petitioner to make payment of\r\nthe aforesaid amounting of Rs.7,20,000/- to the\r\ncomplainant within 15 days, but despite service of notice\r\nthe accused did not repay the amount, rather submitted a\r\nreply through his lawyer on 19.06.2009 wherein it has\r\nbeen alleged that complainant never paid the sum of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rs.7,20,000/- to the petitioner but the said cheque was\r\nissued by the petitioner in favour of complainant as a\r\nsecurity for investment in real estate business with the\r\ncomplainant which did not materialize and the complainant\r\ndid not return the said cheque saying that the same was\r\nmisplaced and now the complainant wants to utilize the\r\nsaid cheque in illegal manner and the petitioner disowned\r\nto have received any amount as claimed in the legal notice.\r\nAccordingly, the complaint was filed</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. Having heard learned counsel for the parties and\r\nafter going through the LCR; it appears that C.W.-1 in his\r\nevidence in chief has fully supported his contention which\r\nhe has mentioned in the complaint petition. He has said\r\nthat he has given a friendly loan of Rs.7,20,000/- to the\r\naccused with an assurance that it will be returned by him\r\nwithin two years. Accused also issued a cheque bearing\r\nno.891585 of Rs.7,20,000/- in his favour. Twice the cheque <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was presented in the bank but it was dishonoured.\r\nThereafter, he has sent a legal notice. On behalf of the\r\ncomplainant Ext. 1 has been brought on record which is\r\ncheque bearing No.891585 of Rs.7,20,000/- issued in\r\nfavour of the complainant. Ext.-2 series are the cheque\r\nreturn memo which shows that on presentation of the said\r\ncheque in the bank it was dishonored. Thereafter vide Ext.-\r\n3 legal notice was sent. The postal receipt and the\r\nacknowledgement has been brought on record marked\r\nExt.4 and Ext.5 respectively and the reply of the legal\r\nnotice has been marked as Ext.6. All these documents\r\nbrought on record shows that the cheque was issued by the\r\naccused in favour of the complainant and on its\r\npresentation in the bank it was dishonoured due to\r\n“insufficient fund”.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. Considering the submission made on behalf of\r\nthe petitioner and after perusing the LCR it appears that in\r\nthe legal notice which is marked as Ext.3, cheque bearing\r\nno.891585 has been mentioned. However, it appears that\r\nin the last digit of the cheque number over writing has been <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">done. D.W.1 is the petitioner himself and in his evidence in\r\ncross examination he has said that Ext.1 is in his\r\nhandwriting and signature. By this way he has admitted\r\nhis signature and writing in the Ext.1 which shows that the\r\ncheque book serial number 891581 to 891590 was issued\r\nin favour of the petitioner on 11.11.2008. Ext. 1 which is\r\ncheque bearing no.891585 shows that it was issued on\r\n27.12.2008 in favour of the complainant/O.P.No.2 which\r\nshows that it was issued after issuance of the cheque book.\r\nAll these factual aspect has been critically examined by the\r\ntrial court before arriving at the conclusion.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8. Section 139 of Negotiable Instruments Act clearly\r\nstates that \"It shall be presumed, unless the contrary is\r\nproved, that the holder of a cheque received the cheque of\r\nthe nature referred to in section 138 for the discharge, in\r\nwhole or in part, of any debt or other liability.\"</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Section 118 (g) of Negotiable Instruments Act\r\nclearly states that \"(g) that holder is a holder in due\r\ncourse:— that the holder of a negotiable instrument is a\r\nholder in due course : provided that, where the instrument\r\nhas been obtained from its lawful owner, or from any\r\nperson in lawful custody thereof, by means of an offence or\r\nfraud, or has been obtained from the maker or acceptor\r\nthereof by means of an offence or fraud, or for unlawful\r\nconsideration, the burden of proving that the holder is a\r\nholder in due course lies upon him.\"</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. In the case in hand, the petitioner has not\r\ndisputed cheque in question and signatures found therein. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The petitioner admitted that cheque in question belongs to\r\nhim and they bear his signature. When the drawer has\r\nadmitted the issuance of cheque as well as the signature\r\npresent therein, the presumption envisaged under Section\r\n118 read with Section 139 of NI Act would operate in favour\r\nof the complainant. The said provisions lays down a special\r\nrule of evidence applicable to negotiable instruments. The\r\npresumption is one of law and there under the court shall\r\npresume that the instrument was endorsed for\r\nconsideration.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. There is also no assertion in the complaint\r\npetition that the date when accused received Rs.7,20,000/-\r\nfrom the complainant on the same day itself accused issued\r\nthe cheque; rather it appears that in lieu of the aforesaid\r\nloan amount the accused issued a postdated cheque\r\nbearing no.891585 in favour of the complainant. The\r\nevidence of D.W.1 itself shows regarding his admission with\r\nregard to the issuance of the cheque in favour of the\r\ncomplainant.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The trial court after examining all the evidences,\r\nboth oral and documentary, concluded that on behalf of the\r\ncomplainant/O.P.No.2 sufficient material has been brought\r\non record to prove that the complainant gave loan amount <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to the accused and in lieu of the loan amount accused\r\nissued cheque Ext.1 in favour of the complainant/O.P.No.2\r\nand on presentation of the said cheque in the bank, it was\r\ndishonoured. Thereafter, legal notice was sent.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>These factual findings goes to show that all the\r\nrequirements to establish a case under Section 138 of the\r\nN.I. Act has been fulfilled by the complainant.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. Before parting, it would be relevant to clarify that\r\na wrong cheque number, as alleged in the instant case by\r\nthe petitioner, mentioned in the complaint petition and/or\r\nthe legal notice may not be the end-all and be-all of the\r\ncase. The other factors are also required to be seen to\r\ndecide as to whether the complainant has been able to\r\nprove his case.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>At the cost of repetition, the original cheque was\r\nplaced before the trial court and the same was exhibited.\r\nThe cheque as well as the signature has been accepted by\r\nthe petitioner. Thus, the presumption under Section 139\r\nwould operate and the wrong number of the cheque in the\r\ncomplaint and/or in the legal notice would not make any\r\ndifference and has to be taken as typographical error.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. Having regard to the facts of the case and\r\nlooking to the continuity of litigation, since the case is of\r\nthe year 2009 and 13 years have elapsed; interest of justice\r\nwould be sufficed if the sentence part is modified in lieu of\r\ncompensation itself. Thus, the sentence of one year is\r\nhereby modified to the extent that the petitioner shall pay\r\nan amount of Rs.1 lakh over and above 9 lakhs\r\ncompensation and after paying Rs.10 lakhs in total shall be\r\ndischarged from his liability of bail bond. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. With the aforesaid observations, directions and\r\nmodification, the instant criminal revision application is\r\ndisposed of.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '75856d37760b72ec45ae0ff78e2dae20.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-17', 1, '', '', '2022-08-16 16:48:52', '2022-08-17 08:23:34'),
(2073, 'y63XUX4diqm1NFMhmy9fJjiBs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bank cannot initiate criminal proceedings alleging loan fraud when borrower\'s declaration as \'willful defaulter\' is stayed by Court. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Steel Hypermarket India Pvt Ltd and others Vs Central Bureau of Investigation and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 919 of 2021 decided on 2 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Brief facts that led the petitioners to this Court in the\r\nsubject petition are as follows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The 1st petitioner - M/s Steel Hypermart Indian Private\r\nLimited (‘the Company’ for short) was established by one Mahendra\r\nKumar Singhi, the 2nd petitioner herein with the objective of trading\r\nin various iron and steel products like hot rolled, cold rolled, coated\r\ncolour roofing sheets, colls and angles. The company was\r\nsanctioned an open cash credit limit of Rs.137.50 crores by the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Indian Bank against an already sanctioned limit of Rs.125/- crores\r\nby the State Bank of India. On 08-02-2018 when the Bank of\r\nBaroda joined the consortium with a cash credit limit of Rs.24.50\r\ncrores, joint documentation of Rs.162/- crores which was the outer\r\nlimit was done in favour of Directors of the Company. By 30-06-\r\n2018 the Company closed the loan by paying it in full to the Indian\r\nBank and as on 01.10.2018 it had excess ad hoc limit of Rs.13.75\r\ncrores.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. When things stood thus, on 09-01-2019 a GST raid was\r\nconducted against the 1st petitioner/Company and all the records\r\nwere seized and directions were issued to the Banks not to interact\r\nwith the Company. Due to this problem, the loans of the 1st\r\npetitioner insofar as they pertain to the Banks i.e., Indian Bank and\r\nBank of Baroda slipped into becoming a Non-Performing Asset\r\n(NPA) and having waited for another year, the consortium of Banks\r\nwhich was consisting State Bank of India, Indian Bank headed by\r\nBank of Baroda caused a legal notice upon the Company under\r\nSection 13(2) of the SARFAESI Act. On 29.05.2019 one of the\r\nmember of the consortium i.e., Bank of Baroda declared the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">accounts of the Company with them as NPA. The petitioners replied\r\nto the legal notice issued by the Indian Bank and the Indian Bank\r\non consideration of the reply notice went on to exercise its powers\r\nunder Section 13(4) of the SARFAESI Act and sought to mortgage\r\nimmovable properties of the petitioners. This came about on\r\n22-07-2019.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. The afore-quoted facts are not in dispute. To consider the\r\ncontentions so advanced of the petitioner/Company to be a willful\r\ndefaulter or otherwise, it is germane to notice master circulars\r\nissued by the Reserve Bank of India which is binding upon\r\nconsortium of Banks. The Reserve Bank has issued a master\r\ncircular on ‘willful defaulter’. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The application of the said circular is to all scheduled commercial\r\nbanks and All India notified financial institutions. Its applicability to\r\nthe consortium of Banks or to the 2nd respondent/Bank is not in\r\ndispute. Whether it is applicable to the case at hand is the dispute.\r\nClause 2 of the said circular deals with willful defaulters.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. In the light of the afore-quoted framework, if the facts\r\nnarrated, in the case at hand are considered, the unmistakable\r\ninference would be that the entire proceedings having been initiated\r\nagainst the petitioners in terms of the afore-quoted circulars, the\r\nsubmission that the circulars are not applicable to the facts of the\r\ncase at hand is rendered unsustainable, as it is fundamentally\r\nflawed. The issue with regard to applicability of the circular or\r\notherwise, will have to be placed to the background, in the light of\r\nthe other submission made by the learned senior counsel for the\r\npetitioners with regard to the act of the respondents in\r\noverreaching the order, albeit, interim, passed by this Court.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. The entire issue of declaration of the petitioner as willful\r\ndefaulter and subsequent action of registration of a crime was on\r\nthe basis of the declaration of the petitioner to be a willful defaulter\r\nor a fraudulent borrower. That having been stayed by this Court\r\nand the stay being in operation up to 15-04-2021, the 2nd\r\nrespondent concealing the said fact of pendency of the case, could\r\nnot have registered the crime, as the basis for registration of crime\r\nwas the account being slipped into NPA on whatever score it would\r\nbe, and the declaration of the petitioner as willful defaulter having\r\nbeen stayed, it could not have appeared before the Court without\r\ndivulging the fact that a complaint had already been registered\r\nbefore the CBI, get the matter disposed of, to re-consider the very\r\nroot that led to registration of the crime. If the very root is to be\r\nreconsidered according to the Bank, it can hardly be justified as to\r\nhow a crime could be registered in the teeth of subsistence of\r\ninterim order during the pendency of the writ petition and\r\nsubsistence of reconsideration at the hands of the 2nd <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respondent/Bank. It is not the merit of the matter that needs\r\nconsideration at the hands of this Court, but it is the act of the 2nd\r\nrespondent/Bank in trying to overreach the interim order of this\r\nCourt by registering the crime.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16. As a matter of fact even disposal of the writ petition did\r\nnot obliterate the interim order. The petition was disposed of by\r\nremitting the matter to the Review Committee to consider the same\r\nafresh, that too on the submission made by the senior counsel\r\nrepresenting the 2nd respondent/Bank. Therefore, the very act of\r\nthe Bank in registering the crime during subsistence of the interim\r\norder and getting the matter closed where interim order was\r\nsubsisting on the ground that it would reconsider the very\r\ndeclaration of the petitioner to be a willful defaulter was flawed.\r\nWithout arriving at the said decision even as on date, the 2nd\r\nrespondent cannot now justify that the proceedings have to go on\r\npursuant to registration of crime. The meat in the merit of the\r\nmatter need not be gone into at this juncture, as it is on the\r\nsubmission of the 2nd respondent/Bank itself, in the earlier </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">proceedings, the matter is required to be reconsidered from the\r\nissue of declaring the petitioner to be willful defaulter.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>17. The submission of the learned senior counsel representing\r\nthe 2nd respondent/Bank that master circulars are not even\r\napplicable to the case at hand is to be repelled as it is\r\nfundamentally flawed, as every action against the petitioner is\r\ntaken under the master circulars. Since the matter is pending\r\nconsideration before the Review Committee of the Indian Bank even\r\nas on date, it would be highly inappropriate to permit the 1st\r\nrespondent/CBI to continue with the proceedings which were\r\nregistered in the teeth and contrary to the interim order passed by\r\nthis Court.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 18. The other submissions made by the learned senior\r\ncounsel with regard to the declaration of willful defaulter or a fraud\r\nwould have to be placed behind the curtains, albeit, for the present,\r\nas it would depend upon the outcome of the decision of the Review\r\nCommittee, before whom all the issues of declaration of the\r\npetitioner to be a willful defaulter are pending consideration. All </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">further actions of the respondents would depend upon the outcome\r\nof the decision of the Review Committee. Permitting further\r\nproceedings to continue in the teeth of the aforesaid facts would\r\nbecome an abuse of the process of law and result in permitting an\r\naction which is initiated in an attempt to overreach the orders of\r\nthis Court, which action sans countenance.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">19. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ORDER</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(i) Criminal Petition is allowed</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '11db59e2f0d7889c2a33010caf8305a1.JPG', '498f5dac3a38dffb6182ec69a9e42f1a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-16', 1, '', '', '2022-08-15 17:23:36', '2022-08-16 13:59:28');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2075, 'JDI95FWSKigms8pAkBC6oyIWg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Though a minor can be beneficiary/recipient under a contract, he cannot be subjected to any obligation or burden of performance of any reciprocal promise. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Veeranna Vs Basanagouda.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>RSA 1978 of 2007 decided on 4 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.G.S. Kamal</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Brief facts of the case of the plaintiff are that; defendant is the uncle of the plaintiff, as the mother of the plaintiff is elder sister of the wife of defendant. That the suit properties originally belonged to the defendant. That the plaintiff purchased Item No.1 and 3 of the suit properties for a valuable consideration of Rs.38,000/- under a registered deed of sale dated 24.10.1988. That Item No.2 of the suit properties had been earlier sold by the defendant to one Veerasangayya Kuchbal, S/o. Mahadevaiah Kuchbal of Hullur village and that the plaintiff purchased the same from the said Veerasangayya Kuchbal under a registered deed of sale dated 25.10.1988 for a sale consideration of Rs.15,500/-. That the plaintiff had entrusted the suit properties to the defendant to look after and cultivate the same as the plaintiff was residing in Domnal village. That in the year 1994, defendant in collusion with the revenue officials got his name entered in the revenue records in respect of the suit properties vide Diary No.3723 and denied his title. Being aggrieved by the same, plaintiff filed the suit seeking declaration of his ownership and for permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the plaintiff over the suit properties and also for possession, if the court finds him not to be in possession of the suit properties.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Defendant in his written statement admitted that the suit properties earlier belonged to him but denied that the ownership and possession of the plaintiff over the same. It is specifically contended by the defendant that he had borrowed an amount of Rs.40,000/- from Veerasangayya Kuchbal of Hullur village by executing a deed of sale in respect of Item No.2 of the suit properties as a security against the said loan. That the plaintiff and his father had represented that they would repay the loan of the defendant on his behalf to Veerasangayya in lieu of he executing a nominal deed of sale in respect of suit properties in their favour with an assurance of reconveying the same on he repaying their dues. Accordingly, the defendant executed deed of sale dated 24.10.1988 in favour of plaintiff in respect of item Nos.1 and 2 of suit properties and the plaintiff paid Rs.40,000/- to Veerasangayya Kuchbal on behalf of the defendant and got the Item No.2 of the suit schedule property conveyed in his name from Veerasangayya Kuchbal under deed of sale dated 25.10.1988. That the possession of suit properties was not delivered and plaintiff has never been in possession of the suit properties.   That in the year 1993 the defendant had repaid the loan amount to the plaintiff. Since reconveyance of the property would involve huge expenses, in order to save the same the plaintiff released the suit properties in favour of the defendant on the basis of a Wardi to the Village Accountant, Hullur and pursuant to which, Diary No.3723 was effected in the name of the defendant in respect of the suit properties. That all these transactions were made in good faith and in consideration of relationship between the parties. That the plaintiff has filed the present suit with malafide intention of knocking of his properties. Hence, sought for dismissal of the suit.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. This Court by order dated 22.03.2011, while admitting the aforesaid appeal framed the following substantial questions of law for its consideration.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i. Whether the Trial Court as well as the First Appellate Court were not justified in holding that the plaintiff who purchased the suit lands, under the sale deeds Ex.P.1 executed by the defendant on dated 24.10.1988 and under Ex.P.2 executed by DW.4 Veerasangayya on dated 25.10.1988 was minor as on the said dates and therefore both the said sale transactions are void?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ii. Whether both the Courts were not justified in placing reliance on Ex.D12, the Transfer Certificate, issued by the school concerned in recording their findings that the plaintiff was minor, as on the relevant dates of the sale deeds at Exs.P.1 and P.2?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>iii. Whether both the Courts were not justified in placing reliance on the oral evidence of DW.4 in recording their findings that the transactions between the plaintiff on the one side and the defendant and DW.4 Veeransangayya on the other, under Exs.P.1 and P.2 sale deeds were loan transactions but not the sale transactions in respect of the suit properties?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>15. Heard the learned counsel for the<span style=\"white-space:pre\">	</span>parties. Perused the records. The undisputed facts of the case are that the defendant was the absolute owner of suit properties. That the plaintiff has repaid the loan of the defendant to Veerasangayya. That defendant had earlier executed a deed of sale in respect of Item No.2 of the suit properties in favour of one Veerasangayya. That defendant along with his wife executed a deed of sale dated 24.10.1988-Ex.P1 in favour of the plaintiff in respect of Item Nos.1 and 3 of the suit properties. That the said Veerasangayya had executed a deed of sale dated 25.10.1988-Ex.P2 in respect of Item No.2 of the suit properties in favour of plaintiff. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>Regarding Substantial Questions of Law Nos.1 and 2:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>26. In the instant case, as already noted above plaintiff is the purchaser/transferee. He is the beneficiary under the deeds of sale. The defendant has consciously executed deeds of sale in favour of the plaintiff, albeit contending the same to be nominal deeds of sale. Thus, there is no dispute or denial of the execution of deeds of sale. There is also no denial of plaintiff paying the money, though the defendant contend the same to be towards repayment of his loan to Veerasangayya. In this fact situation, the reliance placed on by the learned counsel on the aforesaid Judgments is of no avail.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>27. From the aforesaid discussion and the proposition of law laid down in the Judgments referred to above, it becomes clear that the policy behind prescribing age of majority under Section 11 of the Indian Contract Act is to safeguard/protect the rights of a minor. While there cannot be any impediment in a minor being beneficiary/recipient under a contract. Transaction/ contracts involving reciprocal promises require both the parties or transferor and transferee to be competent to a contract. A minor cannot be subjected to any obligation or burden of performance of any reciprocal promises. It is in this inherent requirement of protecting the interest of minor, age of majority being component of competency to enter into contract is mandated under Section 11 of the Indian Contract Act. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>28. Thus, in the instant case, the execution of deeds of sale at Ex.P1 and Ex.P2 by defendant along with his wife and Veerasangayya respectively conveying the suit properties in favour of the plaintiff who was apparently a minor at the time of transaction cannot be faulted with. They are just, valid and subsisting having created ownership and title in favour of the plaintiff in respect of suit properties. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>29. It is equally necessary note that the defendant even according to his pleading in the written statement was in need of funds to repay his loan to Veerasangayya in whose favour he had already executed a deed of sale. The said loan was admittedly paid by the plaintiff on behalf of the defendant to said Veerasangayya. The defendant who was \"competent to transfer\" having derived the benefit of the transaction cannot now seek to avoid the effect of the same by pleading plaintiff being minor rendering the transaction void. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>30. Though there is no specific pleading in the written statement by the defendant with regard to transaction being void on account of minority of the plaintiff, in the evidence the defendant has raised this issue and has relied upon Ex.D12-transfer certificate issued by the school concerned. The plaintiff in the absence a specific plea had no opportunity to rebut the said contention raised by the defendant. Nevertheless in view of answer to the substantial question of law No.1 being sale in favour of a minor is valid, this requirement pales into insignificance. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In that view of the matter, the substantial questions of law Nos.1 and 2 are answered accordingly.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>Regarding Substantial Question of Law No.3: </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>31. It is the specific case of the defendant that the deeds of sale executed in favour of the plaintiff are nominal only to secure the loan paid by the plaintiff. That the defendant has repaid the entire loan amount to the plaintiff in the year 1993 and since the reconveyance of the property in his name would involve huge expenditure and in order to save the same, the suit properties were reconveyed in his favour by the plaintiff merely by reporting a Wardi.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>34. Perusal of aforesaid provisions of the Transfer of Property Act reveal that the defendant\'s case would not fall in any of the types of the mortgages referred to hereinabove.  Though it is contended by the defendant that the plaintiff and his father had assured to reconvey the suit properties on repayment of loan by the defendant, admittedly no written agreement has been entered into in this regard. Assuming that there was any such agreement between the defendant and the plaintiff the same stands excluded in terms of Proviso to Section 58(c) of the Transfer of Property Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>40. Another aspect of the matter is that defendant has claimed that in order to save the cost and expenses, he obtained the re-conveyance only on the basis of a report/Wardi to the Revenue Officer. In this regard, perusal of Ex.P3 and mutation entry at No.3723 refers to a purported partition having taken place on 31.12.1993 between the plaintiff and the defendant based on which name of the defendant has been entered into in the revenue records in respect of the suit properties. The plaintiff has seriously disputed the same. At the outset, it is to be noticed that there cannot be a partition between the plaintiff and the defendant in respect of the suit properties as sought to be contended by the defendant. Secondly, re-conveyance of immovable property can be effected only by a document to be registered under the provisions of the Indian Registration Act. In the absence of such a document, any oral evidence to the contrary cannot be accepted. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>41. As regards the contention of the defendant of he not delivering the possession of the property to the plaintiff, it is necessary to refer to contents of deeds of sale at Exs.P1 and P2 which in categoric terms provide for delivery of physical possession of the suit properties to the plaintiff. Plaintiff himself has pleaded that since he is residing in Domnal village he had asked the defendant to look after the same. Further admittedly name of the defendant was re-entered in the revenue records in the year 1994 pursuant to Wardi at Ex.P3, which postulates existence of name of the plaintiff in the revenue records prior to Ex.P3. According to plaintiff soon after learning about the illegal entry he initiated the proceeding before the revenue authorities seeking its cancellation. It is also relevant to note that any unlawful entry into the revenue records would not create substantive rights in favour of the party claiming such rights. Therefore, the contention of the defendant of non-delivery of possession of the suit properties to the plaintiff and his further claim regarding his name being entered into in the revenue records based on the Wardi cannot be countenanced. The plaintiff is thus, required to be held to be in possession of the suit properties. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>42. As already noted execution and registration of deeds of sale at Exs.P1 and P2 have not been disputed or denied. Validity and subsistence of Exs.P1 and P2 cannot be ignored in the absence of any decree to the contrary by a competent court of law. There is no ambiguity in the contents of Exs.P1 and P2 with regard to same being simple out and out deeds of sale. There is no reference in the said documents even to remotely suggest anything with regard to the loan transaction between the plaintiff and the defendant and plaintiff agreeing to reconvey the property to the defendant. The language employed in EXs.P1 and P2 is plain and unambiguous. No other intentions are emanating from the contents thereof warranting any extrinsic evidence. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>43. In terms of Section 92 of the Indian Evidence Act, no oral evidence is permissible for the purpose of contradicting, varying, adding to or subtracting from terms of the agreement. The defendant has not made out any grounds to bring his case within the Proviso 1 to 6 of Section 92. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>44. The learned counsel for the respondent strenuously submitted that the transaction was done based on good faith and consideration of proximate relationship between the parties and the value of the suit properties even as on the date of execution Exs.P1 and P2 was far higher than the payment made, plaintiff ought not to be allowed to use the same as means for undue enrichment. Though the said submission appears to be plausible, but, the defendant alone is responsible for entering into such a transaction without securing his interest in the manner known to law purportedly to save the expenses involved in obtaining registered deed of re-conveyance. The defendant is not only expected to know the law but also expected to be vigilant about exercise of his rights. Defendant has not initiated any independent proceedings seeking any appropriate relief as per law. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>45. In view of the aforesaid discussion, this Court is of the considered view that the Trial Court and the First Appellate Court are not justified in concluding that Exs.P1 and P2 are not the sale transaction but were loan transactions. Substantial question of law No.3 is answered accordingly.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>ORDER:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>i) The appeal in RSA.No.1978/2007 is allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ed18c750453866f12644ed6d57c1a4f2.JPG', '78d8db63e2d5d1d5c8d6c60e473bc432.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-17', 1, '', '', '2022-08-17 00:00:33', '2022-08-17 13:55:01'),
(2077, 'QaDqJ7w1Tz7OkVvJr3jff10jc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'The House Committees are an extension of the legislature itself and do informed work\'. Karnataka High Court upholds constitution of Special House Committee to examine irregularities in Nursing Colleges in Karnataka. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Hyderabad Karnataka Nursing Management Association Vs The Chairman Karnataka Legislative Council and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 9438 of 2022 decided on 11 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.I. Arun. &nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2. There was a question raised in the Karnataka Legislative Council regarding permission being granted to new Nursing Colleges and Allied Heath Sciences Institutions for the academic year 2020-21 in spite of they not having the necessary infrastructure and violating the directions of Indian Nursing Council and it had resulted in discussions pertaining to Nursing Colleges in general and it was suggested that a Legislative Committee has to be constituted to examine the irregularities. Accordingly, a Special House Committee was constituted as per Clause (1) of Rule 242A of Rules of Procedure and Conduct of Business in the Karnataka Legislative Council.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. Taking into consideration the rival contentions urged by the parties, the questions that arises for consideration in the instant writ petitions are:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>1.<span style=\"white-space: pre;\">	</span>Whether a Special House Committee can be constituted as per the Rules of Procedure and Conduct of Business in the Karnataka Legislative Council to look into the terms of reference as detailed in the publication at Annexure-‘B’ to the writ petitions.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><i><b><font face=\"Calibri, sans-serif\">2.<span style=\"white-space: pre;\">	</span>Whether the issuance of the order dated 04.05.2022 constituting the sub-committees regarding the same is justified.</font><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. Clause (3) of Article 105 of the Constitution of India states about the powers, privileges and immunities of the Members of the Committee of each house of the Parliament&nbsp; and&nbsp; Clause&nbsp; (3)&nbsp; of&nbsp; Article&nbsp; 194&nbsp; of&nbsp; the Constitution of India speaks about powers, privileges and immunities of the Members and the Committees of a House of the Legislature of a State and they are similar to each other.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14. Both the petitioners and respondents do not dispute the power of the Committee to record evidence. However, the petitioners contend that in the process the members of the committee cannot visit their premises. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15. Education, including technical education, medical education and Universities is part of item No.25 of the Concurrent List in Schedule-VII of the Constitution of India and the Nursing Colleges are governed by the Indian Nursing Council Act, 1947, which is Central Enactment and also the Karnataka Nurses, Midwives and Health Visitors Act, 1961 and Rajiv Gandhi University of Health Sciences Act, 1994, which are Enactments of the Karnataka State. Thus, Karnataka State Legislature is empowered to legislate in respect of the Nursing Colleges and a committee can always be constituted by legislative council to study the performance of Nursing Colleges in the State of Karnataka. Further, the material placed before the Court shows that though initially the debate in the house pertained to Nursing Colleges established in the Academic Year 2020-21, it later on covered all the Nursing Colleges.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18. In the instant case, there are alleged irregularities said to have been committed by the various Nursing Colleges, they are said to be operating and imparting education pertaining to various nursing courses even though, they are not meeting the standards prescribed by various authorities, more particularly the Indian Nursing Council and the authorities in charge of scrutinizing&nbsp; the&nbsp; functioning&nbsp; of&nbsp; various&nbsp; colleges&nbsp; are turning a deliberate blind eye to the said irregularities. The legislature intends to verify the same and recommend suitable reforms for which the committee has been constituted to study the functioning of various nursing colleges in the State. No fault can be found in constitution of the same. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">19. It is not in dispute that the committee has the power to record evidence and verify documents in the process of its study. It implies that the committee has power to do such acts or employing such means as reasonably necessary to conduct the study for which it is constituted.<br></font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. Thus, the committee having power to take evidence or call for papers, records or documents for the purposes of its study, it has to be held the committee has the power to visit the Nursing Colleges to study whether they are functioning in accordance with law or not.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 21. However, in the process of studying the functioning of Nursing Colleges, the committee members cannot be permitted to harass the institutions and their visit should be strictly limited to study/collect evidence as to whether the colleges are subscribing to the prescribed standards and it does not empower the committee members to threaten any legal action or issue any type of directions to the Nursing Colleges. Further, the visit should be during office hours and with due prior intimation to the colleges about the visit. The committee is constituted only to study the functioning of the colleges and not to supervise or perform the function of authorities under various laws, which govern the functioning of Nursing Colleges. Further, various authorities created under Indian Nursing Council Act, 1947, Karnataka Nurses , Midwives and Health Visitors Act, 1961, Rajiv Gandhi University of Health Sciences Act, 1994 and the like which are empowered with regulating the conduct of Nursing Colleges in the State of Karnataka, if wants to initiate any action against any erring colleges, will have to do so in accordance with the respective enactments under which they function and not merely based on the findings of the committee constituted by Karnataka Legislative Council. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>For the reasons aforementioned subject to the restrictions mentioned in paragraph 21 supra, the writ petitions are dismissed.</b></font><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '206138a8806428c4a78edab406dee81b.JPG', '2d8fc1a7facd4c26b8335244891d6d6e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-18', 1, '', '', '2022-08-17 16:11:37', '2022-08-18 12:24:05'),
(2076, '9fIVl1tMrfGBR8jusLi0Mc4fM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Writ Petition under Article 226 is maintainable to enforce public duties imposed by common charter, common law, custom or even contract. Supreme Court reiterates.', '<p><b>Union of India and others vs Bharat Forge Ltd and another. <br>Civil Appeal 5294 of 2022 decided on 16 August 2022<br>Justice K.M.Joseph and Justice Hrishikesh Roy </b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>18. Therefore, it is clear that a Writ of Mandamus or\r\na direction, in the nature of a Writ of Mandamus, is\r\nnot to be withheld, in the exercise of powers of Article\r\n226 on any technicalities. This is subject only to the\r\nindispensable requirements being fulfilled. There must\r\nbe a public duty. While the duty may, indeed, arise\r\nform a Statute ordinarily, the duty can be imposed by\r\ncommon charter, common law, custom or even contract.\r\nThe fact that a duty may have to be unravelled and the\r\nmist around it cleared before its shape is unfolded may\r\nnot relieve the Court of its duty to cull out a public duty in a Statute or otherwise, if in substance, it\r\nexists. Equally, Mandamus would lie if the Authority,\r\nwhich had a discretion, fails to exercise it and\r\nprefers to act under dictation of another Authority. A\r\nWrit of Mandamus or a direction in the nature thereof\r\nhad been given a very wide scope in the conditions\r\nprevailing in this country and it is to be issued\r\nwherever there is a public duty and there is a failure\r\nto perform and the courts will not be bound by\r\ntechnicalities and its chief concern should be to reach\r\njustice to the wronged. We are not dilating on or\r\ndiluting other requirements, which would ordinarily\r\ninclude the need for making a demand unless a demand\r\nis found to be futile in circumstances, which have\r\nalready been catalogued in the earlier decisions of\r\nthis Court.</b></span></p><p><b>19. Having cleared the air with regard to the\r\njurisdiction of the High Court in the matter of a Writ\r\nof Mandamus or a direction in the nature thereof, we\r\nmay proceed next to the law relating to the ambit of\r\nthe Court’s jurisdiction in judicial review in\r\ncontractual matters. It is, undoubtedly, too late in the day to countenance the contention that the mandate\r\nof fairness in State action does not extend to the\r\nrealm of contract entered into by the State. We would\r\nnot burden our judgment chronicling the catena of\r\ndecisions, which have expounded the law in this regard.  </b><br></p>', 'c9d730da3f0554ab78684840d2bd7255.jpeg', 'c4d3313fc5409430a42b6d2fd6b8a8e8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-17', 1, '', '', '2022-08-17 00:16:44', '2022-08-17 06:26:01'),
(2078, 'Do5AN0KsXwZ2oreIptxPhzShq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Information Technology Act. ‘Safe harbour’ under Section 79 to an intermediary qua civil liability is available even in respect of criminal prosecution unless an active role is disclosed in the commission of the offences complained. Delhi High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Flipkart Internet Private Ltd Vs State of NCT of Delhi and another<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P (CRL) 1376 of 2020 decided on 17 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Asha Menon.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioner, Flipkart, is an online e-commerce entity, which, as\r\nstated in the petition, provides its portal for sale of products to other\r\nsellers and thus is an “intermediary” as defined under Section 2(1)(w) of\r\nthe Information Technology Act, 2000 (for short, “I.T. Act”).\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The respondent No.1 is the State of NCT of Delhi and the\r\nrespondent No.2/Ashish Girdhar, is the Managing Director of „Sanash\r\nImpex Pvt. Ltd.?. The respondent No.2 had complained to the police that\r\nunauthorized persons were selling products by the name DC\r\nDERMACOL, including on the portal of the petitioner. It was stated that\r\nDC DERMACOL was the product of an international brand (Czech\r\nBrand) and DC DERMACOL had gained high repute as a brand all over\r\nthe world in respect of skin makeup. DC DERMACOL had authorized\r\nthe Sanash Impex Pvt. Ltd. and had granted it absolute and exclusive\r\nright to sell DC DERMACOL cosmetic products in India, both online and\r\noff-line. However, fake products were being sold through Flipkart and\r\nAmazon India. It was alleged in the complaint that this was in connivance\r\nwith the fake/unauthorized re-sellers. Thus, the respondent\r\nNo.2/Mr.Ashish Girdhar, on behalf of its company, accused the petitioner\r\nof cheating and illegal selling of products of DC DERMACOL cosmetics.\r\nOn the basis of this complaint, FIR No.103/2020 was registered for the\r\ncommission of offences under Sections 103/104 of the T.M. Act and\r\nSection 63 of the Copyright Act. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. Under Section 2(1)(za) of the I.T. Act, an originator does not\r\ninclude an “intermediary”. That the e-market portals, like the petitioner,\r\nare intermediaries has been recognized by the courts. For the present\r\npetition, no different view is called for. [See - Google India Private\r\nLimited v. Visaka Industries, (2020) 4 SCC 162].</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">18. Chapter XI of the I.T. Act provides for offences and penalties.\r\nSection 66A of the I.T. Act originally provided for punishment for </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sending offensive messages through communication service, etc., but the\r\nSupreme Court struck it down in Shreya Singhal (supra). Comments on\r\nsocial networking sites would now be punishable only if they are covered\r\nby the provisions of the Indian Penal Code.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. The I.T. Act does not provide for infringement of trademark or\r\ncopyright as an offence thereunder. Therefore, reference will have to be\r\nmade to the respective Acts for this purpose. The only obligation of an\r\n?intermediary? is provided under Section 79 of the I.T. Act, which\r\nincidentally falls under Chapter XII under the title ?Intermediaries Not\r\nTo Be Liable In Certain Case</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. Therefore, a question that would arise is whether the FIR could\r\nhave been registered at all against the petitioner for offences under the\r\nCopyright Act and the T.M. Act? Section 63 of the Copyright Act\r\ndeclares that infringement of copyright is an offence punishable with\r\nimprisonment for a term which shall not be less than six months, but\r\nwhich may extend to three years, and with fine, which shall not be less\r\nthan fifty thousand rupees, but which may extend to two lakh rupees. An <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">„abettor? would also be liable. Possibly because the petitioner being an emarket portal allowing the infringers to sell their alleged fake products on\r\nthe sites hosted by them could appear to have “abetted” the commission\r\nof the offence under Section 63 of the Copyright Act.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">23. Chapter XII of the T.M. Act provides for „Offences, Penalties and\r\nProcedures?. Under Section 103 of the T.M. Act, any person, who\r\nfalsifies any trade mark or applies it to goods etc., or causes any of these\r\nfalsification to be done, would commit an offence punishable with\r\nimprisonment for a term which shall not be less than six months, but\r\nwhich may extend to three years and with fine which shall not be less\r\nthan fifty thousand rupees, but which may extend to two lakh rupees.\r\nUnder Section 104 of the T.M. Act, penalty has been provided for selling\r\ngoods or providing services to which false trade mark or false trade\r\ndescription is applied. Thus, on a similar analogy that the petitioner is\r\npermitting unauthorized sale of the DC DERMACOL products, may\r\nappear to have committed the alleged offence</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. The next question then is whether the information provided by the\r\ncomplainant would suffice to obligate the petitioner to take down the\r\nallegedly offending information/sites/products. The onerous nature of\r\nsuch an obligation is evident when the number of transactions of all\r\nnature on the e-market portal were to be considered. To say that „actual\r\nknowledge? requiring the removal of access, etc., under Rule 3(2)(d) of\r\nthe I.T. Guidelines can be derived on the complaint submitted by a party,\r\nwithout a court order, would be problematic. The claim to a trade mark or\r\ncopyright is often a stoutly contested affair even before a civil court. The\r\nintermediaries are certainly not situated to determine the correctness of a\r\nclaim by a complainant to a trade mark or copyright. For instance, it\r\ncould be a violater/infringer, who may complain to the intermediary\r\nagainst the registered owner of a trade mark or copyright to prevent use\r\nby such registered owner. If such a complaint, per se, was sufficient to\r\ntake down the infringing material, etc., the havoc that can be caused to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">e-commerce is beyond imagination.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. The present case goes a step ahead as the FIR has been lodged only\r\nagainst the petitioner and another platform, as none of the other sites or\r\nentities, allegedly selling the products which are either fake or\r\nunauthorized, are even named. Without determining the rights of those\r\nother sites to sell the products, prima facie, the petitioner has not\r\ncommitted any offence, leave alone under the Copyright Act or the T.M.\r\nAct.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30. As laid down in Bhajan Lal (supra), when a case is not disclosed\r\non the face of the FIR/complaint, the courts would not hesitate in\r\nquashing the same. No doubt, the judgments in Neeharika Infrastructure\r\nPvt. Ltd. (supra) and Asian Resurfacing of Road Agency (P) Ltd. v.\r\nCBI, (2018) 16 SCC 299 had deprecated interlocutory orders and stay of\r\ncriminal proceedings by the High Courts, and in particular, investigations,\r\nbut in those cases too, it has been reiterated that the inherent powers of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the High Court can be exercised to prevent the miscarriage of justice\r\nand/or to prevent the abuse of the process of law.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>31. This is one such case where the registration of an FIR against an\r\nintermediary would lead to miscarriage of justice. Therefore, this Court\r\nfinds itself justified in allowing the present petition and quashing the FIR\r\nqua the petitioner. However, further investigations are not barred in order\r\nto ascertain the identity of those who are infringers and/or unauthorized\r\nsellers of the products of the Czech company.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>32. This petition is accordingly allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. The petition is disposed of along with the pending applications. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f51cbda3836252fdfbcaf2d7fb3f657b.jpeg', '5fa9646be19e2ee3428c44e5f6ff940d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-18', 1, '', '', '2022-08-17 16:55:37', '2022-08-18 07:48:46');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2079, 'xfInHltpvxXNPejhnb7TqVipE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Counter criminal proceeding instituted with an ulterior motive to wreak vengeance on the complainant in the first complaint and with a view to spite him due to private and personal grudge must be quashed. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ravi Vansha Narayan Mathur and another Vs State and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P (CRL) 2488 of 2016 decided on 17 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Asha Menon.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The facts as are relevant for the disposal of the present petition are\r\nthat the petitioners and respondent No.2 entered into a commercial\r\ntransaction where under the petitioners had leased out a property at\r\nJaisalmer. The petitioner No.1 was a partner in the partnership firm by the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">name of M/s SRM Heritage Jaisalmer having its registered office at\r\nMumbai. The petitioner No.2 was working as the Chief Development\r\nOfficer of the partnership firm at the relevant time. The respondent No.2 is\r\nthe Director of M/s JAH Developers Pvt. Ltd. („company?) alongwith two\r\nother Directors, Mrs. Jaswanti Panwar (wife of respondent No.2) and their\r\nson Mr. Anuj Panwar. This company had constructed a hotel situated at\r\nPlot Nos.14, 15 & 16, Barmer Road, Jaisalmer known as Hotel Jaisal\r\nVillas in the year 2009, apparently taking a huge loan from the State Bank\r\nof India. It is this property that was taken on lease by the petitioners\r\nthrough Lease Deed dated 6th September, 2013.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. It is the contention of the petitioner that this Lease Deed was\r\nexecuted on 6th September, 2013 by the respondent No.2 despite being\r\naware of a restraint order upon them issued by the Debt Recovery Tribunal\r\n(„DRT?) on a plea of the State Bank of India („Bank?) from whom the\r\ncompany had borrowed a heavy amount and after its account had become a\r\nNon Performing Asset (NPA). Apparently, the loan was taken on a\r\nmortgage of the land on which the hotel premises were constructed. Thus,\r\naccording to the petitioners, it was with malafide intentions that the Lease\r\nDeed (Annexure P-1) was executed by the respondent no.2 and his\r\ncompany, for a period of 9 years, with a „lock-in period? of three years.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. As the account of the company had become NPA, the Bank issued a\r\nnotice on 17th December, 2013 alongwith the legal notice dated 20th May,\r\n2013 setting out these facts, as also that the company had borrowed Rs.17\r\nCrores from the Bank and the hotel was on a mortgage with it. A notice\r\nunder Section 13(2) of the Securitisation and Reconstruction of Financial\r\nAssets and Enforcement of Security Interest Act (for short, „SARFAESI <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Act?), 2002 had also been issued. When a clarification was sought from\r\nMr. Anuj Panwar, the petitioner was assured that the matter would be\r\nsettled with the Bank.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. Taking the first issue of maintainability, the Supreme Court in\r\nPrabhu Chawla (supra) held that the availability of an alternate remedy in\r\nthe form of a revision would not limit or effect the inherent powers of the\r\nHigh Court under Section 482 Cr.P.C. In fact, the Supreme Court has held\r\nin Krishnan v. Krishnaveni, (1997) 4 SCC 241 which has been followed\r\nin other cases subsequently, that even if a second revision before the High\r\nCourt was barred under Section 397(3) Cr.P.C. after the dismissal of the\r\nfirst one by the Court of Sessions, the inherent powers of the High Court\r\nwould still be available under Section 482 Cr.P.C. The reason being that\r\nunder Section 401 Cr.P.C., every High Court has suo moto powers of\r\nrevision which was in addition and apart from the express power under\r\nSection 397(1) Cr.P.C. The court recognized that the High Court was\r\ninvested with continuous supervisory jurisdiction to prevent miscarriage of\r\njustice or to correct irregularities of procedure or to meet out the justice or\r\nto prevent abuse of process, to be exercised either under Section 401 read\r\nwith Section 397 Cr.P.C. or under Section 482 Cr.P.C.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. Thus, it is clear that the present petition is maintainable whether\r\ntitled as one under Section 482 Cr.P.C. or whether treated to be one under\r\nSection 401 Cr.P.C. Therefore, there is no reason to reject the present\r\npetition on this ground. The decision of a Coordinate Bench of this Court\r\nin Nishu Wadhwa (supra) has no applicability as it has only held that a\r\nrevision petition against an order of the Magistrate under Section 156(3)\r\nCr.P.C. was maintainable before the Additional Sessions Judge. It nowhere <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">provides that apart from a revision no remedy could be availed of before\r\nthe High Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. The next question is whether the impugned order suffers from\r\nirregularity or illegality or perversity, which calls for intervention by this\r\nCourt. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. The FIR also records that the petitioners had paid the security\r\ndeposit by way of different cheques of the partners of SRM Heritage\r\nJaisalmer, instead of making RTGS transfer. But the 36 PDCs demanded\r\nby the complainant/respondent No.2 were not agreed to by the petitioner\r\nNo.2 on the assurance that they would set up an ECS system with the bank.\r\nIt was thereafter the possession of the hotel was handed over at Jaisalmer.\r\nThe Lease Deed was registered with the Sub-Registrar, Jaisalmer on 6th\r\nSeptember, 2013. The alleged accused petitioners started operating and\r\nrunning the said hotel and paid the rent for the first seven months.\r\nThereafter, the rent become erratic and irregular.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30. The allegation is that the accused never intended to set up any ECS\r\nand eventually never did so and therefore there was mal intention from\r\nvery first day and thus, the offence of cheating had been committed. It is\r\nclear from these averments that apart from discussions taking place in\r\nDelhi, no part of the offence has occurred in Delhi as the lease was\r\nregistered in Jaisalmer and there is no clarity regarding the place where the\r\nLease Deed was signed. The possession was handed over at Jaisalmer of\r\nproperty located there. An argument was advanced on behalf of the respondent No.2 that since the money i.e., the security deposit and seven\r\nmonths? rent had been received at Delhi, the Delhi courts would have\r\njurisdiction and moreover the Lease Deed had subjected the disputes to the\r\njurisdiction of New Delhi. This argument does not hold water. The terms\r\nof a contract cannot confer a criminal court with jurisdiction as no contract\r\nis for the purposes of violating the law, or for the commission of offences.\r\nThe criminal courts would be bound by the vesting of jurisdiction in\r\naccordance with the Criminal Procedure Code and not the Civil Procedure\r\nCode. It is to be noted that even in respect of the civil courts jurisdiction,\r\nthe respondent No.2 has initiated action in Jaisalmer and Delhi as per\r\nconvenience.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. More importantly however, is the consideration whether the\r\naverments in the FIR disclose the necessary ingredients of the offences\r\nalleged to have been committed. The contents of the FIR have been\r\nreferred to in the foregoing paragraphs. The offence of cheating would\r\noccur only when it is prima facie shown that there was mal intention from\r\nthe very beginning. Admittedly, the petitioner had paid Rs.90 lacs as\r\nsecurity to the respondent No.2. Furthermore, 7 months? rent has also\r\nadmittedly been paid. The non-payment that occurred subsequently was\r\nsubject matter of arbitration and rent control proceedings. Thereafter,\r\npossession was handed over to the Bank and subsequently to the\r\nrespondent No.2 in the year 2018 during civil litigation before the High\r\nCourts of Delhi and Rajasthan. It is more than apparent that the nonpayment of rent does not disclose a mal intent from the time the lease was\r\nentered into by the petitioners with the company of the respondent No.2\r\nnor does it disclose the offence of mis-appropriation. The FIR itself has\r\nmade a grievance of non-adherence by the petitioner to promises of\r\npayment and the filing of “false and frivolous case against the\r\ncomplainant/company” and the criminal complaint at Mumbai. These\r\naverments on the face of it do not disclose either criminal breach of trust,\r\ncriminal mis-appropriation, criminal conspiracy, criminal intimidation or\r\ncheating.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. As observed in Satvinder Kaur (supra) and in Neeharika\r\nInfrastructure (P) Ltd. (supra), ordinarily the High Court would not stop\r\ninvestigation as that would trench upon the lawful power of the police to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">investigate into cognizable offences as the police have a statutory right and\r\nduty to investigate commission of a cognizable offence and the court\r\nwould not thwart any investigation into such cognizable offences. Yet,\r\nwhere no cognizable offence or offence of any kind is disclosed in the FIR,\r\nthe court would not permit an investigation to go on. In other words, while\r\nthe High Court would be loathe to interfere in the investigations, especially\r\nat a nascent stage, where it becomes one of paramount necessity the court\r\nwould not hesitate to use its inherent powers to quash the FIR and even\r\nrestrain investigation in appropriate cases.\r\n34. The powers of quashing would no doubt be exercised sparingly but\r\nwhere the continuance of investigation would result in complete\r\nmiscarriage of justice and appears to be only an exercise in pressure\r\ntactics, the court should not hesitate to nip such an exercise in the bud. The\r\npresent case is clearly covered in clause 7, as set forth in para 102 of\r\nBhajan Lal (supra) whereby if a criminal proceeding is manifestly\r\nattended with malafide and/or where the proceeding is maliciously\r\ninstituted with an ulterior motive for wreaking vengeance on the accused\r\nand with a view to spite him due to private and personal grudge, the FIR\r\nmust be quashed. In the present case, the respondent No.2 has been\r\ninvolving the petitioners in multifarious litigation, both civil and criminal,\r\nand as borne out from the fact that the present complaint alongwith the\r\napplication under Section 156(3) Cr.P.C. was filed by the respondent No.2\r\nonly after the FIR was registered at instance of the petitioners at Amboli\r\nPolice Station, Mumbai, the connection cannot be ignored.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">35. In the light of the foregoing discussion therefore, the petitioners are\r\nentitled to the relief sought. Accordingly, the petition is allowed and the </span></b><b style=\"font-size: 12pt;\">impugned order dated 14th March, 2016 stands quashed and as a result\r\nthereof the FIR No. 270/2016 and all proceedings including investigations\r\narising therefrom shall also stand quashed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b96e5cfcc41f6d73008857c60ce875ef.jpeg', 'a0d6b2741c0fba9e1740486f5a7896aa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-22', 1, '', '', '2022-08-17 17:17:36', '2022-08-22 12:22:04'),
(2080, 'XIJGt0eQgx2m1OUNiqIX8DVMW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'RERA Act prevails over the Arbitration and Conciliation Act. When proceedings are already initiated before the RERA Authority, application for appointment of Arbitrator to decide the same dispute cannot be entertained. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Raffles Residency Private Limited Vs ANS Connectors Private Limited.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Misc. Petition 504 of 2021 decided on 13 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The contention of the petitioner in CMP No.504/2021 is that the petitioner and respondent had entered into an Agreement to Sell dated 27.02.2017 at Annexure-A which contains an arbitration clause, in terms of clause 23 thereof</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">6. There being certain disputes between the petitioner and respondent, petitioner invoked the arbitration clause and issued a notice on 10.06.2020 nominating its arbitrator. The same came to be replied by the respondent vide reply notice dated 7.07.2020 calling upon the petitioner to withdraw the aforesaid notice. Vide rejoinder dated 31.10.2020 again the petitioner </font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">invoked arbitration clause and appointed its nominee arbitrator. The same was not acceptable to the respondent. As such, the petitioner is before this Court seeking for the aforesaid reliefs.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. On notice having been served, objections having been filed in CMP No.494/2021 contending that the respondents have already approached the adjudicating Officer, Karnataka Real Estate Regulatory Authority, Bangalore [RERA] in CMP/UR/201117/0007075 where the very same disputes are pending consideration before the Adjudicating Authority and it is in that background that the respondents have filed objections stating that the claims of petitioner are totally false and further that it is the Adjudicating Authority who has to adjudicate the disputes. As such, the present proceedings are not maintainable.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. A perusal of the legal notices which have been issued by the petitioners would indicate that the petitioner had called upon the respondents to come forward, make payment of the dues and execute a sale deed and construction agreement. The claim made by the respondents before the RERA is also regarding execution of a sale deed, but of course the respondents have claimed certain other reliefs including compliance with the terms and conditions of the agreement of sale, as also claim for damages, compensation, etc., which is required to be adjudicated by the Authority. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">13. Be that as it may, the claim of the petitioner in the legal notice being already pending before the RERA and RERA being a special authority created under the RERA Act of 2016, and a separate Adjudicatory mechanization having been provided under the said Act in terms of Section 89 thereof having over riding </font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">effect over any other law in force notwithstanding anything inconsistent therewith, I am of the considered opinion that RERA Act of 2016 will have a effect irrespective of the contents of the Arbitration and Conciliation Act, 1996. As such the proceedings now pending before the RERA Authority, it would be required for the said Authority to decide the disputes. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">14.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">The submission of Sri.Christopher, learned counsel for the petitioner is that insofar as the disputes between the petitioner and respondents is concerned, the RERA would not have jurisdiction. If that be so, it is for the petitioner to make submissions regarding the same before the said Authority.  In the event of the said Authority holding in favour of the petitioner, liberty would have to be reserved to the petitioner to revive the above petition.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>15. ORDER: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>i.      The petitions stand dismissed reserving liberty to the petitioners to approach this Court in the event of the claim of the petitioner that the RERA Authority has no jurisdiction being upheld.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5c2a73268287970b33cf43f7619c21fa.JPG', '901ac07158df18faa732619f59b490aa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-18', 1, '', '', '2022-08-17 17:29:57', '2022-08-18 13:54:47'),
(2081, 'zgvUxnIcO6lWbnxEbJJ3XXOeX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When a special penal statute does not provide for separate procedure to prosecute, proceedings under Section 154 of Cr.PC and the other relevant provisions of Cr.PC are to be followed to prosecute the accused. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vasanthan. B Vs The Sub Inspector of Police<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL. MC 6348 of 2021 decided on 1 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ziyad Rahman A.A</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is the accused in C.C.No.267/2020 on the file of the Chief Judicial Magistrate Court, Thodupuzha. The aforesaid case arises from Crime No.154/2019 of Cumbammettu Police Station which was registered for the offences punishable under Section 7(a) of the Kerala Land Conservancy Act, 1957 (hereinafter referred to as ‘the Act’).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>2. The allegation against the petitioner is\r\nthat, with the intention to make unlawful gains,\r\nhe encroached upon Government poramboke land\r\ncomprised in Survey No.67/1 (Re-Survey No.334/1,\r\nBlock No.52) having an extent of 0.4720 hectares\r\nand constructed a compound wall, gate and a room\r\nfor the watchman. The aforesaid crime was\r\nregistered based on a complaint submitted by the\r\nTahsildar(LR) Udumbanchola. Annexure-A1 is the\r\nF.I.R and after completing the investigation, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Police filed Annexure-A2 final report. This\r\nCrl.M.C. is filed for quashing all further\r\nproceedings pursuant to Annexure-A2 final report. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>6. I have perused the records and taken into\r\nconsideration the rival contentions raised from\r\neither side. The specific case of the learned\r\ncounsel for the petitioner is that Section 15 of\r\nthe Act provides that, unless the Government, by\r\nnotification in the Gazette, authorize any other\r\nofficer to exercise powers conferred on the\r\nDistrict Collector, no other officer can perform\r\nthe functions of the District Collector. He also\r\nplaces reliance upon the rules under the Kerala\r\nLand Conservancy Rules, 1958 to contend that, as\r\nper the procedure contemplated therein, the only <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">person competent to initiate prosecution for\r\nencroachment of Government land is the District\r\nCollector. Therefore, in the absence of\r\nnotification authorising the 2nd respondent herein\r\nto initiate prosecution, the proceedings initiated\r\nin this case based on a complaint submitted by the\r\n2\r\nnd respondent are not legally sustainable,\r\ncontends the learned counsel for the petitioner.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>8. In my view, the contention put forward by\r\nthe learned counsel for the petitioner is not\r\nlegally sustainable. Section 4(2) of the Cr.PC is\r\napplicable only in a situation where the special\r\nstatute specifically provides a separate specific\r\nprocedure for initiation of prosecution. As far as the rules referred to by the learned counsel for\r\nthe petitioner are concerned, under no\r\ncircumstances can those provisions be treated as\r\nprovisions contemplating a specific or separate\r\nprocedure for the institution of prosecution of\r\nthe offences under the Act by deviating from the\r\nprocedure contemplated under the Cr.P.C. It is\r\ntrue that Rule 7 refers to the prosecution under\r\nSection 7 of the Act. However, in my view, the\r\naforesaid provision is not an exclusive provision\r\nwhich prohibits the normal procedure under Cr.P.C,\r\nfor initiation of prosecution. A careful reading\r\nof the same would indicate that the aforesaid Rule\r\nis only directory in nature, and it does not in\r\nany manner prevent the Police from investigating\r\nand filing charge sheet for the offences\r\npunishable under the Act based on the information\r\nfurnished by the Tahsildar concerned. To be\r\nprecise, nothing in the said provision excludes\r\nthe application of the procedure contemplated in the Cr.PC for the said purpose. Moreover, it is\r\nalso not specifically mentioned in any of the\r\nprovisions of the Land Conservancy Act or Rules\r\nthereunder that the prosecution has to be\r\ninitiated by the Collector himself.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>10. At this juncture, it is relevant to\r\nnotice that, as per Section 9(2) of the Act, the\r\noffences specified under Section 7 of the Act have\r\nbeen made cognizable. Since the offences are\r\nspecifically made cognizable as per the statute,\r\nthe Police are competent and bound to conduct an\r\ninvestigation by following the procedure\r\ncontemplated under Section 154 of Cr.PC, which\r\nmandates the registration of F.I.R upon receiving\r\ninformation of commission of a cognizable offence.\r\nNone of the provisions in the Land Conservancy Act\r\nor the Rules framed thereunder makes it necessary\r\nto file a complaint in any particular form, for\r\ninitiating the prosecution. It is also not\r\nspecified that such complaint or information shall\r\nbe submitted by any particular officer. In other\r\nwords, no statutory implications emerge from provisions of the Land Conservancy Act <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and the\r\nRules framed thereunder, necessitating any\r\ndeviation from the procedure for registration of\r\nthe crime, investigation of the same and\r\nprosecuting the accused as per the provisions of\r\nCr.PC. Therefore, I do not find any reason to\r\naccept the contention of the learned counsel for\r\nthe petitioner.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>12. I have carefully gone through the\r\nobservations made in the aforesaid judgments. In\r\nEbha Arjun Jadeja’s case (supra), the question\r\nconsidered was relating to the offence under the Terrorist and Disruptive Activities (Prevention)\r\nAct, 1987 (‘TADA Act’). The aforesaid decision\r\ndealt with the registration of a crime by\r\nfollowing the procedure contemplated under Section\r\n154 of Cr.PC without obtaining sanction as\r\ncontemplated under TADA Act. However, it is to be\r\nnoted that Section 20(A) of the TADA Act\r\nspecifically provided the manner in which\r\ncognizance of an offence under the Act has to be\r\ntaken. The aforesaid provision starts with a\r\nnon-obstante clause which states that no court\r\nshall take cognizance of any offence under that\r\nAct without the previous sanction of the\r\nInspector-General of Police or as the case may be,\r\nthe Commissioner of Police. Thus, it is evident\r\nthat there was a specific prohibition in taking\r\ncognizance of the offence otherwise than in the\r\nmanner contemplated in the said Act<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>14. In Md.Israil’s case (supra), the High\r\nCourt of Patna was dealing with the offences under\r\nthe provisions of the Mines and\r\nMinerals(Development and Regulation) Act, 1957\r\n(‘MMDR Act’). In that decision also, the special\r\nprocedure contemplated under the said Act was\r\nupheld as against the general provisions in the\r\nCode of Criminal Procedure. It is to be noted that\r\nSection 22 of the MMDR Act specifically provides\r\nthat no court shall take cognizance of any offence\r\nunder the said Act except on a complaint made by a\r\nperson authorized by the Central Government or <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">State Government. Therefore, in that enactment\r\nalso, a separate procedure was contemplated. In\r\nBablu’s case (supra), the High Court of Patna\r\ndealt with the offences under the Drugs and\r\nCosmetics Act, 1940. There also, Section 32 of the\r\nDrugs and Cosmetics Act provided that no\r\nprosecution shall be instituted except by the\r\nofficers specifically mentioned in the said\r\nprovision.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>15. Thus, when all the aforesaid decisions\r\nrelied on by the learned counsel for the\r\npetitioner are examined, it can be seen that, the\r\nprinciples laid down in those decisions were in\r\nrespect of enactments, where a separate and\r\nspecific procedure was contemplated for initiation\r\nof prosecution. On the other hand, when coming to\r\nthe provisions of the Land Conservancy Act, I am\r\nunable to find any provision which excludes the\r\noperation of Section 154 of Cr.PC and contemplates\r\nany separate specific procedure for initiation of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the prosecution. Therefore, I am of the view that,\r\nin the absence of such procedure, the proceedings\r\nas contemplated under Section 154 of Cr.PC and the\r\nother relevant provisions of Cr.PC are to be\r\nfollowed to prosecute the accused for the offence\r\nunder Section 7 of the Land Conservancy Act. The\r\nfact that Section 9(2) of the Land Conservancy Act\r\nspecifically made the offence under Section 7 of\r\nthe Act ‘cognizable’ fortifies the above view.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>In such circumstances, I do not find any\r\nmerits in the contentions put forward by the\r\nlearned counsel for the petitioner. In the result,\r\nthis Crl.M.C. is dismissed, without prejudice to\r\nthe other contentions of the petitioner. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3c728fad5429d42ea46bbd0f73920de4.jpg', '93abc59e5bedb37b3031248dbea7d567.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-20', 1, '', '', '2022-08-17 18:01:50', '2022-08-20 11:22:02'),
(2082, 'VQ55CZ3d82zTAsdpgbBE0wjz3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Complaint under Section 138 of the Negotiable Instruments Act is not maintainable only against Director of Company unless the Company is also made party to the proceedings. Karnataka High Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Raghavendra Vs M/S National Steel Tubes.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Revision Petition 770 of 2017 decided on 18 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.G. Uma.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Brief facts of the case are that, the respondent- complainant filed the private complaint in PCR No.38853 of 2010 against the revision petitioner - Director of M/s Aqua Flow Engineering Co., Pvt. Ltd., alleging commission of offence punishable under Section 138 of NI Act. It is stated that the complainant is dealing with G.I. Pipes and G.S. Fittings on wholesale and retail basis and it is represented by its Power of Attorney holder. In the course of business, the accused purchased G.I pipes on credit basis. Accordingly, the complainant dispatched the materials, totally worth Rs.20,98,133/-, under different order dated 30.09.2008, 03.10.2008 and 07.10.2008. Various invoices were issued for supply of materials. Under the credit note dated 03.10.2008, the invoice amount was adjusted and an amount of Rs.16,81,565/- was due to be paid by the accused. Towards repayment of the said amount, the accused issued the cheques Exs.P2 to 6, totaling to Rs.16,79,397/-. When the cheques were presented for encashment, they were dishonored as there was insufficient funds in the account of the accused. In spite of issuance of legal notice, the accused has not repaid the cheque amount. Thereby, he has committed the offence punishable under Section 138 of NI Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3. The Trial Court took cognizance of the offence and registered C.C.No.2597 of 2011. The accused appeared before the Trial Court and pleaded not guilty and claimed to be tried. Accordingly, the complainant examined himself as PW1 and got marked Exs.P1 to 19 in support of his contention. The accused denied all the  incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C and examined himself as DW1. The Trial Court after taking into consideration all these materials on record came to the conclusion that the complainant is successful in proving the guilt of the accused beyond reasonable doubt. But the accused has not rebutted the presumption and not probablised his defence. Therefore, he is liable for conviction. Accordingly, the impugned judgment and conviction and order of sentence was passed</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. In view of the rival contentions urged by the learned counsel for the parties, the point that would arise for my consideration is: <i>\"Whether the revision petitioner has made out any grounds to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court and which was confirmed by the First Appellate Court?\"</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>My answer to the above point is in \'Affirmative for:</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. The specific contention taken by the learned counsel for the revision petitioner is that, the legally recoverable debt was not proved by the complainant as the transaction between the accused and the complainant was only upto 2008 and that Exs.P2 to 6 are the old blank cheques which were issued as security prior to 2008. The contention of the learned counsel for the petitioner was considered in the light of the evidence of PW1 and Exs.P1 to 19. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. PW1 has categorically stated regarding the transaction between the accused and the complainant and also spoke about the invoices - Exs.P12, 13 and 19 and also about issuance of legal notice after dishonour of cheques. Even though PW1 was cross examined at length, nothing has been elicited from him to disbelieve his version. When the complainant is successful in placing material and deposing before the Court regarding the issuance of cheque, dishonor of the same for want of insufficient fund, the presumption under Sections 118 and 139 of the NI Act comes into operation and it is for the accused to rebut the same by taking defence and probalising the same. Even though the accused has taken a defence that Exs.P2 to 6 - old cheques issued blank as security, the same is not probablised.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>15. Section 141  of NI Act deals  with offences by Company.  As per the Sub Section (1) of the Section 141 of NI Act, if the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>16. The Hon’ble Apex Court in Aneeta Hada (supra) considered the question as to whether the authorised signatory of the Company would be liable for prosecution under Section 138 of NI Act without the Company being arrayed as accused. It also considered the position of law as to whether Section 85 of the Information Technology Act, 2000 which is para materia with Section 131 of NI Act and when the Director of Company was prosecuted under Section 292 of IPC and under Section 67 of the IT Act, without impleading the Company as the accused and whether the prosecution against such Director alone is liable to be quashed under Section 482 of Cr.P.C.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>17. Thus, it is clear that when the Company itself is not arrayed as accused, as required under Section 141 of NI Act, the criminal proceedings against the Director or authorised signatory of the cheque alone cannot be prosecuted. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>18. In the present case, admittedly the Company is not arrayed as accused. The accused is the Director of M/s Aqua Flow Engineering Co. Pvt. Ltd., who is the signatory to the cheques Exs.P2 to 6. In view of the settled proposition of law as held in Aneeta Hada (supra), the prosecution against the accused being the Director of Company in question is liable to be quashed. Since the proceedings was liable to be quashed, even when the trial is completed and the accused was convicted, the said conviction is not liable to be upheld. Even though the learned counsel for the complainant contended that the name of the Company is mentioned in the cause title and therefore, the Company is arraigned as an accused, the said submission is liable to be rejected outrightly as the petitioner herein is arraigned as accused being the Director of the Company. The Company is never prosecuted along with the petitioner.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>20. The facts and circumstances of the said case is entirely different as the Company was arrayed as accused No.1 and the Managing Director as accused No.2. But in the present case, the Company is not a party, whereas, the only accused is the Director of the Company who signed the cheque on behalf of the Company i.e., M/s Aqua Flow Engineering Co., Pvt. Ltd., Therefore, this decision is not applicable to the facts and circumstances of the case. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>21. In view of Section 141 of NI Act and the settled proposition of law in Aneeta Hada (supra),, I am of the opinion that the accused is entitled for acquittal in the absence of Company being prosecuted for the offence under Section 138 of NI Act.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>The Criminal Revision Petition is allowed.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6b3f9cc413a5515c1baa6391c7bb7d86.JPG', '1d22f241f87138f40313e905a2d8c444.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-19', 1, '', '', '2022-08-17 18:13:57', '2022-08-19 13:55:27');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2083, 'BeDHhtClpXCo7L1sFgql1coz6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Every seasoned advocate trains the witnesses before they are examined in the court. Such training cannot be branded as \'tutoring the witness\'. Karnataka High Court.   ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Immu Imran Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1739 of 2018 decided on 2 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This appeal is filed by the accused. The I Additional District and Sessions Judge and Special Judge under Protection of Children from Sexual Offences Act, Shivamogga, by her judgment dated 29.6.2018 held the appellant guilty of the offences punishable under sections 366, 506, 354A of IPC and sections 9( l) and (m) read with section 10 of Protection of Children from Sexual Offences Act (‘POCSO’ for short) and sentenced him to rigorous imprisonment for seven years and fine of Rs.50,000 /- with default sentence of eight months for the offence under section 366; rigorous imprisonment for two years for the offence under section 506 ; and rigorous imprisonment for seven years and fine of Rs.50,000/- with a default sentence  of  eight  months  for  the  offence  under section 9( l)and (m) read with section 10 of POCSO Act. All the sentences were made to run concurrently. Out of the fine amount, Rs.90,000/-was ordered to be paid to the victim as compensation.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. I have perused the entire evidence and considered the arguments. If the evidence is re-appreciated, it may be stated that the trial court has not fallen in error in appreciating the evidence. The evidence of PW2, the victim girl, shows that, she being a girl of tender age gave evidence in her own words. Her evidence clearly discloses as to how she used to be lured by the accused whenever she went to a shop situated nearby her uncle’ s house and what he did by taking her to a dilapidated house.  She did not reveal  the  incident  for  about  a  month  because  of threat given to her by the accused. Of course she might have stated that she used to fall down every day during prayer time and the same is not corroborated by PW6. According to PW6, it was on 6.11.2014 that she saw PW2 having fallen down due to giddiness during prayer time.  The discrepancy pointed out by the appellant’ s counsel is not so significant.  The fact remains that only when PW2 fell down in the school, the teacher could notice and send a word to the mother of PW2.  It was in the presence of PW1, PW6 and other teachers that PW2 revealed as to how she was subjected to sexual assault by the accused. Therefore to this extent there is corroboration to the testimony of PW2 by PW1 and 6.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. It was much argued by learned counsel for the appellant that PW2 had been tutored as is evident from her admission in the cross-examination. Indeed her one answer in the cross-examination gives an impression that probably she might have been tutored before she was asked to depose in the court. But, if a tender aged girl is trained to depose in the court about the incident to which she was the victim, it is not tutoring rather it is aiding a witness to recollect the facts. It is a ground reality that every witness who is conversant with the facts requires a certain degree of training before he is put to witness box. Training is necessary irrespective of age, and it is more required  when the witnesses are illiterates. In fact every seasoned advocate trains the witnesses before they are examined in the court. Tutoring takes a different meaning, it means training a witness to speak to the facts which he does not know, or sometimes training a witness to speak more than what he actually knows. Planted witnesses are tutored. But training a witness to recollect what he is aware of relating to the facts of a particular case does not amount to tutoring.</b><br></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. Defence is that there existed enmity between the family of PW1 and the accused. This is just a defence without any basis.  Moreover on the basis of confession statement given by accused, the investigation officer was able to recover a knife and handkerchief by drawing mahazar as per Ex.P3.  Ex.P13 is a part of confession statement leading to discovery of MO1 and MO2.  Seizure of MO1 and MO 2 is proved by PW3 and he has not been impeached in the cross-examination. In this view, the inconsistency in evidence that the learned counsel pointed out during  arguments  does  not  shake  the  prosecution case in any way.  The witnesses cannot be expected to have a photographic memory. Discrepancy is bound to occur. Minor discrepancies cannot be given importance. Therefore I do not find any infirmity in the findings of the trial court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. In the light of the medical evidence and the testimony of PW2, the trial court’ s conclusion to convict the accused for the offences  under section 9 ( l) and (m) read with section 10 of POCSO Act instead of the offence under sections 4 and 5( l) and ( m) read with section 6 of POCSO Act,  along  with  offences  under  sections  366  and 506 IPC is proper in all respects.   I do not find any ground to reverse the judgment of conviction. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. However, I find a case to reduce the sentence. Learned counsel for the appellant argued that in case this court would come to conclusion that the judgment of the trial  court cannot be set aside, the imprisonment period imposed on him be reduced to the minimum prescribed under the statute.  On the date of incident his age was 25 years and he was earning livelihood for the family.  Still he is young.  His family needs his support and therefore the sentence is required to be modified.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. I am of the opinion that having regard to the circumstances pleaded by the learned counsel for the appellant, the sentence may be modified. The trial court has imposed imprisonment for seven years for each of the offences under section 366 IPC and sections 9( l) and (m) read with section 10 of POCSO Act. For the offence under section 366 IPC, the maximum sentence of imprisonment may extend up to ten years, and according to section 10 of POCSO Act, the minimum sentence of imprisonment should not be less  than  five  years. In view  of  the  sentencing structures found in these two sections, as the appellant has already spent more than five years in the jail, for the offences under section 366 IPC and section 9 ( l) and (m) of POCSO Act, the sentence of imprisonment is reduced to five years by retaining the fine imposed by the trial court for these two offences. The sentence imposed by the trial court for the offence under section 506 IPC is not altered,  it remains the same.  The sentence for all these offences is made to run concurrently. Sentence of fine imposed by the trial court for all the offences and default sentence periods are also not modified.  As directed by the trial court, PW2 is entitled to be compensated from the fine amount. The accused shall be set at liberty in connection with this case if he has already served sentence of five years including the period of pre-conviction imprisonment period and if he has also served  default  sentence  imprisonment  for  all  the offences in case of his failure to pay<span style=\"white-space:pre\">	</span>the fine amount.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e85a5d4be73c7645a96dde3ef36de7be.JPG', 'd62a7a216e8b19ee31e5c927434d74a0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-18', 1, '', '', '2022-08-18 18:53:21', '2022-08-18 08:30:12'),
(2084, '2gJ3gvv6U6E0BRPtMKgasNGJr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Though there is no bar for appointment of former employee as an arbitrator, if there are justifiable doubts regarding his impartiality, Court can refuse to appoint him as arbitrator. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>J M Swamy Vs Government of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Misc Petition 168 of 2021 decided on 11 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3. There being certain disputes that arose between the parties, the petitioner had written a letter dated 22.05.2020 for settlement of claim/disputes as per the aforesaid Clause 25 of the conditions of the contract. Respondent No.1 rejected this vide letter dated 12.06.2020. The petitioner thereafter referred the disputes to Superintending Engineer vide letter dated 12.06.2020, but there was no reply from the Superintending Engineer, as such referred the claims/disputes to the respondent No.2 for settlement. Respondent  No.2  also  rejected  the claims of the petitioner vide letter dated 14.07.2020. The petitioner thereafter, vide letter dated 17.07.2020, wrote to respondent No.2 for appointment of DRC Member not connected with the respondents. Respondent No.2 referred the disputes/claims to the Dispute Redressal Committee vide its letter dated 12.08.2020. The petitioner had filed proceedings in Commercial A.A. No.75/2020 under Section 9 of the Arbitration and Conciliation Act, 1996 [‘A&C Act’ for short] seeking interim protection. Thereafter, the claims made by the petitioner to the DRC were rejected on 11.01.2021. Hence, the petitioner had approached respondent No.2 on 18.01.2021 for the appointment of an impartial independent arbitrator. Thus from the time dispute arose, it took nearly 8 months for the petitioner to even seek for appointment of an Arbitrator.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Respondent No.2 in its letter dated 01.02.2021 appointed respondent No.3 as an Arbitrator for settlement of disputes.  Immediately on receipt of the said communication, respondent No.3 vide a letter dated 12.02.2021 had called upon the parties to submit their claims and counter-claims, claiming that this was done without following the procedure under Section 12(1)(b) of the A&C Act, the petitioner is before this Court seeking for the aforesaid reliefs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. A short point that would arise for determination is: <i>“Whether the bar under Section 12(5) of the A&C Act would apply to a former employee or not?”</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. In terms of Section 12(1)(a), a person when approached in connection with his possible appointment, is required to disclose, in writing, any circumstances either direct or indirect of any past or present relationship which would give rise to justifiable doubts as to his independence or impartiality. Explanation (1) to Section 12 of the A&C Act provides that the grounds stated in the Fifth Schedule shall guide in determining  the circumstances whether gives rise to independence or impartiality of an arbitrator<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. In the present case, Sri.B.N.Nagaraja, Chief Engineer (Retired) was appointed as an Arbitrator. Sri.B.N.Nagaraja had on 04.02.2021 submitted a disclosure statement to the respondent-Appointing Authority vide Annexure-R3 giving his details wherein he has declared that there are no circumstances which exist, which give rise to justifiable doubts as to his ability to act independently or impartially in the case, however such a disclosure does not refer to each and every entry in the Fifth and Seventh Schedule.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17. Thereafter, the petitioner has raised his objection on 02.03.2021 contending that Sri.B.N.Nagaraja is not an independent Arbitrator since he was the former Chief Engineer of CPWD and as such, does not satisfy the requirement of amended A&C Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. From the above facts, it is clear that firstly there is a disclosure which has been made by Sri.B.N.Nagaraja in the format prescribed in Sixth schedule and in the said disclosure, he has stated that there is no justifiable reason to affect his impartiality, but however, he has stated that he at present is handling four arbitrations for CPWD. The said disclosure is not a complete disclosure in as much the Arbitrator when approached ought to have referred to each of the entries of the Fifth schedule and Seventh Schedule and answered each item in the affirmative or negative. It is not the subjective satisfaction or self certification of the Arbitrator but the justifiability of doubt which would have to be considered by the Section 11 court while appointing an Arbitrator.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. The contention of Sri.M.N.Kumar, learned counsel for the respondents by relying on GF Toll Road case (supra) is that A&C Act, 1996 does not disqualify a former employee from acting as an Arbitrator.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 21. There is no such categorical statement made by the Hon’ble Apex Court, the Hon’ble Apex Court being mindful of the fact that there cannot be a straight jacket formula prescribed in such cases has qualified the statement by stating that the same is provided there are no justifiable doubts as to his independence and impartiality. Thus, the Hon’ble Apex Court in the said decision did not categorically state that there is no bar for a former employee to act as an Arbitrator, but qualified it by stating that the same is so provided if there are no justifiable doubts as to his independence.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>22. What this Court in the present matter would have to look into and decide is whether there are any justifiable doubts as to the independence or impartiality of the Arbitrator appointed or not in the light of the grievance raised by the petitioner and the petitioner not being acceptable to the said Arbitrator arbitrating the disputes between the parties.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>24. A perusal of the disclosure statement indicates that major work that the said arbitrator has done post his retirement is for the CPWD inasmuch as he has done two cases with PWD, Andaman and Nicobar, four case CPWD CE (SZ)-3, Bangalore. This being more relevant for the fact that the respondent is CPWD CE (SZ)-3, Bangalore. Thus, the only work done of significance by the arbitrator is that with the respondent. Though the same may not amount to business relationship, I cannot absolutely accept the independence of the said Arbitrator, since he has done four arbitrations for the respondent and his appointment for further matters would probably be on the basis of the award that he may pass in the matters that he has been appointed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>28. The requirement of A&C Act is for an independent Arbitrator to be appointed, so that he/she would be in a position to decide the matter impartially and as such, reducing the possibility of a challenge to an arbitral award being passed by such an Arbitrator. While considering the question of appointment of an Arbitrator or otherwise, it would be required of this Court to take into consideration the possibility of conflict of interest, so that time spent on the arbitration is not wasted and or is not set at nought.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>31. In the present case, I am of the considered opinion that there are justifiable grounds about the Arbitrator being independent or impartial and therefore, would come within the mischief of Section 12(5) of the A&C Act. Therefore, whether the appointment is made prior to amendment or post amendment, I am of the considered opinion that the disqualification on account of possible conflict of interest and justifiable grounds of impartiality and independence would apply to the Arbitrator appointed by the respondent. When such a disqualification is exfacie evident, I am of the considered opinion that there would be no purpose served by this Court permitting the petitioner  to  raise  the  issue  by  filing  necessary challenge before the Arbitrator in terms of Section 13 of the A&C Act. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>32. Having come to a conclusion that there being a justifiable doubt as to the independence or impartiality of the Arbitrator. As such, I am of the considered opinion that the above petition would be required to be allowed and an independent and impartial third party Arbitrator be appointed in the place of the Arbitrator already appointed by respondent.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>33. ORDER: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>i.      Sri. H. M. Nanjundaswamy., a retired District Judge of the District Judiciary of the State of Karnataka is appointed as a sole arbitrator to arbitrate the dispute between the parties.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>ii.<span style=\"white-space:pre\">	</span>The arbitration to be carried out under the aegis of the Bangalore Arbitration Centre.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0d64c9f8685d6cf1cee05ac459438d68.JPG', 'e05cf47b572fd6a059f0ecebd846d733.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-22', 1, '', '', '2022-08-18 19:55:30', '2022-08-22 13:55:36'),
(2085, 'ri0DGBScVJG1imzlLwxHt9XyA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When an arbitration agreement binds only one of the several persons who are parties to a dispute, the cause of action cannot be split. Arbitrator cannot be appointed in such circumstances. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Minions Ventures Private Limited Vs Hardik Shah and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Misc Petition 290 of 2021 decided on 11 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The petitioner is a Company incorporated under the Companies Act, 2013 engaged in the business of operating an Online Technology Platform. The platform is an online marketplace for three kinds of parties viz., the sellers who have sold goods or provided services against an invoice to the customer, the second being the customer who has availed the goods/services from the sellers and is liable to pay the invoice amount to the sellers and the third being the financiers or the purchasers, who wish to purchase the right to receivables under the invoice from the sellers.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. The points that would arise for consideration are as under:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1)<span style=\"white-space:pre\">	</span>Whether there is an arbitration agreement in existence between the petitioner and each of the respondents?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2)<span style=\"white-space:pre\">	</span>Whether respondent Nos.3 and 4 would be governed by the arbitration clause allegedly contained in the employment agreement executed between the petitioner, respondent No.1 and respondent No.2?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3)<span style=\"white-space:pre\">	</span>Whether the matter is required to be referred to arbitration?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4)<span style=\"white-space:pre\">	</span>What order?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22.   Answer to Point No.1: Whether there is an arbitration agreement in existence between the petitioner and each of the respondents? And Answer to Point No.2: Whether respondent Nos.3 and 4 would be governed by the arbitration clause allegedly contained in the employment agreement executed between the petitioner, respondent No.1 and respondent No.2?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22.5. In the present case, the Employment Agreement produced by the petitioner does indeed have an arbitration clause, but has not been signed. However, despite opportunities having been granted to the petitioner, the petitioner has been unable to produce any document to establish exchange of Employment Agreement between the petitioner and respondent No.1 which could signify and/or indicate the consent on part of respondent No.1 to the arbitration clause during the course of exchange. Thus, I am of the considered opinion that the existence of an Arbitration agreement between the petitioner and respondent No.1 under the Employment Agreement has not been established.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22.10.  As I have come to a conclusion that there is no Arbitration Agreement between Petitioner and Respondent No.1, the question of by implication the same binding Respondent No.4 and then Respondent No.3 would not arise.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 22.11. I Answer point no.1 by holding that there is an arbitration agreement in existence between the petitioner and respondent No.2, there is no arbitration agreement in existence between the petitioner on the one hand and respondents No.1, 3 or 4 either jointly or severally<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space:pre\">	</span>Answer to Point No.3: Whether the matter is required to be referred to arbitration?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">23.1. The dispute between the petitioner on the one hand and Respondents on the other is one and the same. The cause of action for the petitioner </font></span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">is also one and the same in as much as the allegation is that Respondent no.3 company has been created to do the same business as that of the petitioner by using the confidential information of the Petitioner. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">23.2.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">The dispute in the present case is as regards breach and not as regards performance and that the breach has been committed through a third party. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">23.3.</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">In the present case, the arbitration agreement between the petitioner and respondent No.1 not having been proven, the question of referring the dispute between Petitioner and Respondent No.1 to arbitration would not at all arise. It is not that the petitioner is remediless, the petitioner can initiate any other action against respondent No.1 as available. Similar would be the situation as regards Respondents no.3 and 4.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23.4. In the above background I’am of the considered opinion that the cause of action in so far as Respondent No2 which is governed by an Arbitration clause cannot be split and there would be no purpose served by only referring the dispute of the Petitioner with Respondent No.2 to Arbitration, by taking into consideration the dicta of the Hon’ble Apex court in Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya and Ors., (2003) 5 SCC 351.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24.<span style=\"white-space:pre\">	</span>Answer to Point No.4: What Order?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24.1. Applying the decision of the Hon\'ble Apex Court in the case of Sukanya Holdings (P) Ltd. vs. Jayesh H. Pandya & Anr reported in (2003) 5 SCC 531, there cannot be splitting of causes of action one between the civil suit and the other arbitral proceedings. Hence, the dispute alleged by the petitioner against the respondents cannot be split and referred to arbitration under these proceedings. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24.2. It is not that the petitioner is remediless. If the arbitration clause would not apply, the petitioner would be entitled to initiate civil proceedings and/or criminal proceedings as against the respondents. Thus, the arbitration being a special remedy which can be created only under a contract, the same not having been created and come into being the remedy of the petitioner is only by way of ordinary civil and/or criminal remedies<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petition stands dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e6a595306b011f0c662a8a537eee5092.JPG', '959982e77776d6bd3288dc461e2b247c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-19', 1, '', '', '2022-08-18 20:23:03', '2022-08-19 12:20:06'),
(2091, 'MqUfKlFORNfPn9L0FKXdGoj4d', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘’The dead have no rights and can suffer no wrongs’’ (G W Paton). Section 394 Cr.P.C. providing for abatement of proceedings on the death of the accused is not unconstitutional. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>G. Varadaraju Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 13145 of 2022 decided on 12 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. BRIEF FACTS OF THE CASE: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a) Petitioner was the complainant in a Cheque Bounce case in C.C.No.13156/2016 for an offence punishable u/s 138 of the Negotiable Instruments Act, 1881. After the trial, the same came to be dismissed by the learned XIX ACMM Court at Bangalore vide acquittal order dated 2.8.2017. Petitioner had filed Criminal Appeal No.1453/2017 against the said order. A Co-ordinate Bench of this Court disposed off the said appeal as having abated, the respondent-accused having died pendente lite. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">(b) Petitioner submits that the provisions of section 394 of Cr.P.C. which provide for abatement of criminal appeals on the death of accused, firstly, do not apply to the Cheque Bounce cases which are governed by the Negotiable Instruments Act, 1881 (for short ‘NI Act’ hereafterwards) which is as a complete Code in itself; secondly, if the said provisions are held to be applicable, the same are liable to be voided on the ground of being discriminatory & arbitrary. Petitioner argues that to the extent the Parliament has not enacted an appropriate provision for continuing the criminal proceedings in general and criminal appeals in particular, despite the death of accused, who has left the persons representing his estate, Court should step in and provide a remedy to the aggrieved.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Having heard the petitioner-party-in-person and the learned advocates appearing for the respondents, this Court declines indulgence in the matter for the following reasons: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a) The grievance of the petitioner is essentially against the provisions of section 394 of Cr.P.C. which cause the final abatement of criminal proceedings on the death of accused, subject to certain exceptions into which his case does not fit.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b) The focal point of all actions at criminal law is the person offending so that as long as he is alive, he avails for trial &  punishment, if found guilty. Ordinarily, this punishment concerns life, liberty or status of the convict. Legislature if it chooses, may provide for levy of fine or forfeiture of property of the deceased, is beside the point. The proceedings for criminal prosecution of offenders involve personal elements such as mens rea which pertain to the domain of mind; if commission of offence is proved, the person of the offender as such, is required for undergoing the punishment for purging the guilt. Therefore, ordinarily, the criminal proceedings abate on the death of accused. On the death of the complainant, the legal heirs of the deceased complainant can move an application under section 302 of the 1973 Code to prosecute the cheque bounce case vide CHAND DEVI DAGA v. MANJU K.HUMATANI, does not come to the aid of the petitioner inasmuch as, the prosecution is of the offender and therefore, it can continue despite the death of the complainant.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b>(d) It is pertinent to refer to a decision of US Supreme Court in DURHAM vs. UNITED STATES which recognizes the doctrine of abatement ab initio on the death of accused or convict pendente criminal proceedings including appeals. Thus, the provisions of law such as section 394 of Code of Criminal Procedure, 1973 providing for abatement of proceedings are universal and time tested. The policy of the State as enacted in statutes which provide for the final abatement of appeals on the death of accused are animated with legislative wisdom & logic. It is a matter of pure legislative policy that death of the accused should put an end to criminal proceedings. Therefore, the said provision cannot be voided.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b>(f) The petitioner’s Criminal Appeal No.1453/2017 having already been disposed off as having abated on 29.03.2022, what benefit would accrue to him should relief as sought for in this petition be granted, remains inscrutable, as rightly contended by learned CGC who is also justified in pointing out the defect in the petition which has not arrayed L.Rs of the deceased accused, against whom petitioner intends to proceed. No explanation is offered by him as to why the said  L.Rs  have  not  been  made  respondents  to  the petition, though they answer the description of proper parties in the light of decision of Apex Court in RAZIA BEGUM Vs. SAHEBZADI  ANWAR  BEGUM,  if  not necessary parties to the adjudication of lis at hands. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b>(g) The vehement submission of petitioner that the provisions of 1973 Code do not apply to the trial of cheque bounce cases and therefore, the appeal against the acquittal entered therein, could not have been disposed off as having abated on the death of the accused, does not merit acceptance. Section 4 of the Code r/w Sec. 143 of NI Act makes its provisions applicable to the trial of offences punishable under law other than IPC, 1862 as well. Some of the provisions of the Code are excluded from application does not mean other relevant provisions do not govern the criminal proceedings under the NI Act.</b><br></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b>In the above circumstances, this petition being devoid of merits, is liable to be dismissed and accordingly, it is. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\" style=\"\"><b>Costs made easy.</b><br></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd853b0aa7554f8e5a563afb32371b812.JPG', 'f7e72acdfb143ea522af678de5fe7e49.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-20', 1, '', '', '2022-08-19 16:40:39', '2022-08-20 13:56:35');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2092, 'cb5PUCUa226Vjf1yLda4x5zJ5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Dispute arising out of non-renewal of the lease is arbitrable and the arbitration clause cannot be rendered otiose by refusal of the landlord to renew the lease. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Birji Raj Oberoi Vs The Secretary, Tourism and Civil Aviation Department and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5509-5510 of 2022 decided on 18 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Indira Banerjee and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. These appeals are against a common judgment and final order\r\ndated 18th November 2021 passed by the High Court of Sikkim at Gangtok\r\nallowing Arbitration Appeal No.02 of 2021 filed by the Respondents,\r\nsetting aside the impugned order dated 31st May 2021 passed by the\r\nCommercial Court on an application of the Appellant under Section 9 of\r\nthe Arbitration and Conciliation Act, 1996, hereinafter referred to as “the\r\n1996 Act”, and also dismissing Arbitration Petition No. 02 of 2021 filed by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Appellant under Section 11 of the 1996 Act for appointment of an\r\nArbitrator.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3. The State of Sikkim, impleaded as Respondent No.2 in this appeal,\r\nis the absolute owner of the property bearing Plot No.309, Paljor Stadium\r\nRoad, Gangtok, East Sikkim, known as Norkhill Hotel, hereinafter referred\r\nto as the ‘said property’ along with its land, buildings, annexe, servants\r\nquarters and garages.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. By a registered deed of lease dated 9th December 1997, the\r\nRespondent State leased out the said property to the Appellant on terms\r\nand conditions stipulated in the said deed of lease.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The lease was due to expire by efflux of time on 31st May 2021. By\r\na letter dated 12th November 2020 addressed to the Respondent State,\r\nthrough the Secretary, Tourism Department, the Appellant offered its <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">terms and conditions for renewal of the lease of the said property, for a\r\nfurther period of 30 years, at an annual rent of Rs.64,30,766.43 per year,\r\nthat is, 10% more than annual rent being paid then, with escalation of\r\n10% every three years.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. In our considered opinion, the Division Bench fell in error in arriving\r\nat the finding that the arbitration clause could only be invoked if the\r\nproposal for renewal was accepted by the lessor, but there was dispute\r\nwith regard to the period of renewal or there was dispute with regard to\r\nthe quantum of rent proposed to be paid by the lessee to the lessor.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. It is well settled that clauses in a lease deed cannot be read and\r\nconstrued in isolation. The lease deed is to be construed as a whole.\r\nClause 4(xiii) has to be read with Clause 3 which clearly provides that the\r\ninitial term of the lease under the deed shall be a period of 24 years from\r\n1\r\nst June 1997 to 31st May 2021 and shall be renewable for such acceptance\r\nof the lessee’s offer in terms of Clause 4(xiii). Clause 4(xiii) has wrongly\r\nbeen printed as Clause 4(xii). It is not in dispute that it is to be read as\r\nClause 4(xiii) and all concerned have proceeded on the basis that the offer\r\nis to be in terms of Clause 4(xiii). <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. Prima facie, the parties to the lease deed have used the expression\r\n“shall” which connotes a command. If the lessee offered its terms for\r\nrenewal or extension of the lease within the time stipulated in the lease,\r\nprima facie the same would have to be accepted. However, if the\r\nquantum of rent or the period of lease could not be mutually agreed upon,\r\nthe same would necessarily have to be referred to arbitration by an\r\nArbitrator to be appointed by the Chief Justice of the Sikkim High Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. Clause 4(xiii) provides that the Appellant-lessee shall, in the last\r\nyear of the lease tenure and not later than six months prior to the expiry\r\nof the present lease, communicate in writing to the lessor, his terms and\r\nconditions for the renewal of the present lease and if the same is accepted\r\nby the lessor, then the present lease may be renewed for such further\r\nperiod and on such rent as may be mutually agreed. The arbitration\r\nclause cannot be rendered otiose by refusal of the Respondent State to\r\nrenew the lease. The Respondent State may have formulated a policy for\r\nencouraging self-employment of local youth who are duly qualified and\r\ncompetent to run the hotel. Such policy decision cannot impact an\r\nexisting agreement with a renewal clause. All disputes between the\r\nparties to the lease with regard to renewal and/or non-renewal, the period\r\nof renewal and the quantum of rent would have be decided by the\r\nArbitrator, as observed above. The issue of arbitrability of the dipsute\r\nover non-renewal of the lease is within the realm of the Arbitral\r\nTribunal/Arbitrator.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. The appeals are allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b161290bddcd4ec0aca1edb2649f542b.jpg', 'e4a52c132210ccce16737c37fd90ab60.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-20', 1, '', '', '2022-08-19 17:21:12', '2022-08-20 09:06:58'),
(2093, 'dUsT3D2i0mTr0DC9MxnNHzTXl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Under the garb of filing a review petition, a party cannot be permitted to repeat old and overruled arguments for reopening the conclusions arrived at in a judgment. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>S. Madhusudhan Reddy Vs V. Narayana Reddy and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5505 of 2022 decided on 18 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice N.V. Ramana, Justice Krishna Murari and Justice Hima Kohli.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The appeals have a chequered history that dates back to the year 1967. The\r\nfacts relevant for deciding the present appeals are as follows:-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.1. Late Shri Chandra Reddy and late Shri Chenna Reddy, both sons of Buchi\r\nReddy, were protected tenants in respect of separate parcels of land situated in different\r\nsurvey numbers of Kammadanam Village, Shadnagar Mandal, Mahabubnagar District .\r\nThe recorded landlord of the protected tenants was late Venkat Anantha Reddy, who\r\nwas the Karta of a joint family comprising of himself and his brother, late Laxma Reddy.\r\nOn the basis of an oral partition of the land that took place between the two brothers, the\r\nsubject land fell to the share of late L. Harshavardhan Reddy (respondent No.6), son of\r\nlate Laxma Reddy. Pertinently, L. Harshavardhan Reddy expired during the pendency of\r\nthe review petitions and L. Sameera Reddy was brought on record as his legal heir. As <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">per the respondents, late Shri Chandra Reddy, who was a protected tenant in respect of\r\nthe subject land measuring 57 acres and 16 guntas, had surrendered his protected\r\ntenancy rights on submitting a written application dated 6th August, 1966 to the\r\nTehsildar. A similar application was submitted by the three legal heirs of Late Chenna\r\nReddy (Ram Reddy, Chandra Reddy and Laxma Reddy) in respect of land measuring\r\n98 acres 18 guntas. The respondents claim that on receiving the said applications, the\r\nTehsildar, Shadnagar, recorded the statements of the applicants and after confirming the\r\nidentity of the parties, issued a public notice and thereafter, accepted the surrender on\r\nsatisfying the requirements prescribed in the A.P. (Telangana Area) Tenancy and\r\nAgricultural Lands Act, 19502\r\n. After accepting the surrender applications, the names of\r\nthe protected tenants were struck off from the final records of tenancy, vide order dated\r\n31st March, 1967.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3.2. It is also the version of the respondents that the protected tenants had\r\nsurrendered their tenancy rights in favour of late Venkat Anantha Reddy pursuant to an\r\nunderstanding that the latter would not oppose the 38-B Certificate issued by the\r\nTenancy Tribunal in favour of Chandra Reddy and the sons of late Chenna Reddy in\r\nrespect of the parcel of land measuring 85 acres 23 guntas situated in Kammadanam\r\nVillage. In other words, there was a reciprocity between the protected tenants and the\r\nlandlord based on which, the landlord relinquished his rights in respect of land </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">measuring 85 acrs 23 guntas in exchange of the surrender of the subject land by\r\nChandra Reddy and the legal heirs of late Chenna Reddy.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.3. On the other hand, the appellant, who is the legal heir of the original tenants,\r\nclaims that his ancestors were dispossessed from the subject land in the year 1975\r\nwhen they were trying to obtain 38-E Certificate from the authorities. Only in the year\r\n2001 when the legal heirs of the protected tenants had applied for the final record of\r\ntenancy, did they discover that the names of the protected tenants had been struck off\r\non the basis of the purported surrender proceedings conducted by the Tehsildar in the\r\nyear 1967. Challenging the said surrender proceedings, the predecessors-in-interest of\r\nthe appellant being the protected tenants, preferred appeals before the Joint Collector in\r\nFebruary, 2002 along with an application seeking condonation of delay. The said\r\nappeals were allowed by the Joint Collector, Mahabubnagar, being the Appellate\r\nAuthority, vide order dated 2nd April, 2005. Aggrieved by the said order, the\r\nrespondents approached the High Court of Andhra Pradesh3\r\n raising a plea that it was an\r\nex-parte order and filed two Civil Revision Petitions (CRP No. 4620/2005 and CRP No.\r\n4988/2005), which were allowed, vide order dated 19th September, 2006 and the matters\r\nwere remanded back for fresh disposal. On a re-hearing, the Appellate Authority passed\r\nan order on 23rd March, 2013 whereby, the order dated 31st March, 1967 passed by the\r\nTehsildar, Shadnagar accepting the surrender of the protected tenancy rights by the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ancestors of the appellant, was set aside and the original entries in respect of the land in\r\nthe final record of tenancy as existing prior to 1967, were restored.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. In the light of the legal position crystalized above, let us now\r\nexamine the grievance raised by the appellant. The learned Single Judge of\r\nthe High Court has taken great pains to discuss the three circumstances\r\navailable under Order XLVII CPC for maintaining a review application and observed that in the instant case, the respondents had stated before this\r\nCourt that they had in their possession, genuine documents relating to\r\nsurrender of the protected tenancy rights in respect of the subject land and in\r\nview of the said submission, the petitions for Special Leave to Appeal were\r\ndisposed of with an observation that if the respondents were able to obtain\r\nsuch documents, it would be open to them to file a review petition before the\r\nHigh Court. What is relevant is that this Court had even then declined to\r\ninterfere with the findings on merits returned by the High Court vide\r\nJudgment dated 09th July, 2013; nor was the review order dated 20th\r\nFebruary, 2014, interfered with. Under the garb of the liberty granted to them\r\nto approach the High Court again, all that the respondents have done is to\r\nobtain certified copies of the revenue records in respect of the subject land\r\nand enclosed them with the second set of review petitions. This is so when\r\nphotocopies of the said documents had been filed by them earlier.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. In other words, nothing has been stated on affidavit to substantiate\r\nthe plea taken by the respondents at such a belated stage that the documents <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sought to be filed by them with the second set of review petitions had come\r\nto light after passing of the judgment and order dated 9th July, 2013. Under\r\nthe garb of the liberty granted to them, the respondents have tried to fill in the\r\nglaring loopholes and introduce evidence in the review proceedings that was\r\nall along in their power and possession and ought to have seen the light of\r\nthe day much earlier. In fact, it appears that the Civil Revision Petitions were\r\noriginally argued to the hilt on several other grounds, not limited just to the\r\nrevenue record, which were all considered and turned down as meritless.\r\nTherefore, we have no hesitation in holding that non-production of the\r\nrelevant documents on the part of the respondents at the appropriate stage\r\ncannot be a ground for seeking review of the judgment and order dated 9th\r\nJuly, 2013 particularly, when five opportunities enumerated in para 31 above,\r\nwere available to them for production of the said documents, which were all\r\nfrittered away, one by one.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">35. In our opinion, even otherwise, recourse to successive review\r\npetitions against the same order is impermissible more so, when the\r\nrespondents have miserably failed to draw the attention of this Court to any\r\ncircumstances that would entitle them to invoke review jurisdiction within the\r\nambit of the Rules. Under the rules, the respondents were not required to\r\nproduce “genuine” documents but new documents/evidence that was not\r\nwithin their knowledge and could not have been so even after exercise of due </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">diligence, which could have turned the tables in their favour. Nor has any\r\nerror apparent on the face of the record been brought out by them.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>36. Given the above facts and circumstances, we are of the firm view\r\nthat the second set of review petitions were nothing short of an abuse of the\r\nprocess of the court and ought to have been rejected by the High Court as not\r\nmaintainable, without having gone into the merits of the matter. In the result,\r\nthe present appeals are allowed. The impugned judgment dated 29th April,\r\n2022, is set aside and the common judgment and order dated 9th July, 2013\r\npassed in CRP No.2786/2013 and CRP No. 2787 of 2013, is restored.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>37. Parties are left to bear their own expenses.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '95b332647c89bd444de401bfe48cdd39.jpeg', '79d0104e4f66b252e50478903706ac8c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-19', 1, '', '', '2022-08-19 18:08:08', '2022-08-19 10:31:45'),
(2088, 'CYsZwXJprkNU7iIDFOo0VLlo8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'In the State of Haryana, a court in second appeal is not required to formulate a substantial question of law since the law applicable in Haryana is Section 41 of the Punjab Courts Act, 1918 and not Section 100 of CPC. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Satyender and others Vs Saroj and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4833 of 2022 decided on 17 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Uday Umesh Lalit, Justice S. Ravindra Bhat and Justice Sudhanshu Shulia.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The case arises out of the proceedings initiated by the\r\nplaintiffs (respondents herein) for declaration and possession on\r\nan agricultural land. Suit was filed by the plaintiffs, claiming to be\r\nowners of the property, which in total measured 80 Kanals, 19\r\nMarlas. The property is in the revenue village Gagarwas, Tehsil\r\nLoharu, District Bhiwani (Haryana). Their case was that defendant\r\nNo. 2 was their tenant who had sub-let the land to his son <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(defendant No.1), without the consent of the plaintiffs/landlords\r\nand hence, the two defendants were liable to be evicted and the\r\npossession of the land was to be handed over to the plaintiffs. The\r\nplaintiffs additionally had built their case on an assertion that the\r\nland was earlier in possession of one Ram Kaur on which Ganpat\r\nRai, the father of defendant No. 2 was the tenant. Ganpat Rai\r\nsurrendered his tenancy of the disputed land to Ram Kaur in the\r\nyear 1976. Later in the year 1994, the plaintiffs had won a suit\r\nagainst Ms. Ram Kaur and the land which is the subject matter of\r\nthe present dispute now belongs to them, hence they have\r\nstepped into the shoes of Ms. Ram Kaur and are now the owners\r\nof the property.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. Defendant No. 1 (Satyender) is the son of defendant No.2\r\n(Ishwar Singh). The stand taken by defendant No.1 was that he\r\nhad no concern with the land in question. The defence set up by\r\nhim was that he was born in the year 1966 and hence, he was only\r\ntwelve years of age in the year 1978 when the sub-tenancy is\r\nalleged to have been created in his favour, as per the revenue\r\nrecords. He never cultivated the land and the cultivation was\r\ndone by his father and his two uncles, and the entries made in the\r\nrevenue record showing him to be a tenant or a sub-tenant are </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">wrong and have been made by the plaintiffs, in collusion with the\r\nrevenue officials.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. Defendant No.2 filed a separate written statement.\r\nAccording to defendant No. 2, one Indraj was the original owner\r\nof the property, who had given this land in tenancy to defendant\r\nNo. 2’s father Ganpat Rai. Indraj died in the year 1976 and was\r\nsucceeded by Ms. Ram Kaur. Meanwhile, the father of the\r\ndefendant No. 2, Ganpat Rai died in the year 1978 and\r\nconsequently he and his two other brothers namely, Sombit and\r\nOm Prakash had jointly inherited the tenancy. Thereafter, all the\r\nthree brothers became tenants under Ms. Ram Kaur and they\r\ncontinued to be in possession of the suit property. They denied\r\nthat they were ever tenant of the plaintiffs.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">5. In addition to their written statement, a counter claim was\r\nalso set up by defendant No. 2. The defendant No.2 claimed in his\r\nwritten statement that in addition to the Khasra and Killa numbers\r\ngiven in the plaint, he was also in possession of two other Killa\r\nnos. i.e., 6//18 and 23. In other words, their counter claim on the\r\nabove two mentioned plot numbers was in addition to the claim\r\non the plots as mentioned by the plaintiffs. The suit was ultimately </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dismissed by the Trial Court on the findings that the plaintiffs\r\ncould neither prove their right on the property, nor could they\r\nprove the fact that the defendant No.2 had created a sub-tenancy\r\nin favour of his son, i.e., defendant No.1. The counter claim set up\r\nby the defendant No. 2 was decreed</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Initially, it was held by this Court (in Kulwant Kaur v.\r\nGurdial Singh Mann3\r\n) that after the 1976 Amendment, Section\r\n100 of the CPC would be applicable in Punjab & Haryana and not\r\nSection 41 of the Punjab Courts Act, 1918 and a second appeal has\r\nto be decided only on a “substantial question of law”. It was held\r\nthat after the 1976 Amendment Act, Section 41 of the Punjab\r\nCourts Act, stood repealed. Additionally, it was also held that\r\nSection 41 of the Punjab Courts Act was repugnant to Section 100\r\nCPC in view of Article 254 of the Constitution of India.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. Be that as it may, though the requirement of formulation of a\r\nsubstantial question of law was not necessary, yet Section 41 of\r\nthe Punjab Courts Act, requires that only such decisions are to be\r\nconsidered in second appeal which are contrary to law or to some\r\ncustom or usage having the force of law or the court below have\r\nfailed to determine some material issue of law or custom or usage\r\nhaving the force of law. Therefore, what is important is still a\r\n“question of law”. In other words, second appeal is not a forum <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">where court has to re-examine or re-appreciate questions of fact\r\nsettled by the Trial Court and the Appellate Court. The plaintiffs\r\nhad claimed right over certain agricultural land and their case\r\nwas that they have the right to be declared the owner of this\r\nproperty and the possession be handed over to the them, for the\r\nreasons that on this particular property defendants and their\r\npredecessors-in-interest were the tenants of the plaintiffs. Their\r\ncase was that defendant No. 2 was their tenant who had sub-let the\r\nproperty in favour of his son, that is defendant No. 1 and therefore,\r\nthe property should be reverted back to the plaintiffs and they\r\nshould be declared the owner and should be given the possession\r\nof the property as well. Both the Trial Court as well as the First\r\nAppellate Court had held after evaluating the evidence placed by\r\nthe plaintiffs that the defendant No. 2 and his brothers (who were\r\nnot even made a party by the plaintiffs) were the tenants on the\r\nproperty and defendant No.2 had not sub-let the property in\r\nfavour of his son that is defendant No. 1 and the revenue entries\r\nbeing made in this regard in the year 1978 are wrong and without\r\nany basis as there was no order of any revenue authority for\r\nmaking such an entry. In short, the plaintiffs had failed to prove\r\ntheir case as owner of the land in dispute. Hence their case of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">declaration and possession was dismissed. The Second Appellate\r\nCourt however, quite erroneously, and without any justification,\r\ngave an entirely new finding regarding two Killa Nos. 21//3/2 and\r\n7//13 on which the plaintiffs claimed relief of declaration and\r\npossession, on the same grounds as raised by them for the other\r\nKilla Nos. The pleadings also show that the defendants had made\r\na general denial of the plaintiffs’ claim for all the plots. Yet, the\r\nHigh Court held that since the defendants had not made any claim\r\nfor plot nos. 21//3/2 and 7//13 and therefore by logic a decree of\r\ndeclaration of possession ought to have been given to the\r\nplaintiffs for these plots! This reasoning of the second Appellate\r\nCourt is erroneous for the simple reason that the burden of proof\r\nwas on the plaintiffs to prove their case, which they had failed.\r\nThey have not been able to prove to the satisfaction of the Trial\r\nCourt as well as the First Appellate Court about their claim of any\r\nkind over this property. Merely because the defendant did not\r\nraise a counter claim on this property it would not ipso facto mean\r\nthat a decree ought to have been granted in favour of the\r\nplaintiffs. Plaintiffs have to prove their case on the strength of\r\ntheir evidence. For this reason, the reasoning given by the\r\nSecond Appellate Court for decreeing the claim of the plaintiff for </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">plot nos. 21//3/2 and 7//13 is incorrect and to that extent is liable\r\nto be set aside.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16. The other finding of Second Appellate Court regarding the\r\ncounter claim of the defendants on Killa Nos. 6//18 and 23 is,\r\nhowever, correct and is based on right interpretation of Order\r\nVIII, Rule 6A of CPC. From the pleadings of the plaintiffs, it is clear\r\nthat they had never raised any claim on Killa No. 6//18 or Killa No.\r\n23. The defendants in their written statement while denying the\r\nrights of the plaintiffs on the land of which particulars had been\r\ngiven by the plaintiffs, quite ingeniously inserted the two Killa\r\nNos.6//18 and 23, setting a counter-claim on these plots. The Trial\r\nCourt and the First Appellate Court while dismissing the plaintiffs’\r\nsuit had allowed this claim for without assigning any reasons. In\r\nfact, this counter claim which was raised by the defendant is\r\nbarred under Order VIII, Rule 6A of the CPC.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>A counter claim can be set up only “against the claim of the\r\nplaintiffs”. Since there was no claim of the plaintiffs regarding\r\nKilla No. 6//8 and 23, the defendants were barred to raise any\r\ncounter claim on these Killa numbers in view of Order VIII, Rule\r\n6A of the CPC as it has nothing to do with the plaintiffs. It is true\r\nthat a counter claim can be made by the defendant, even on a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">separate or independent cause of action</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Legislature permits the institution of a counter claim, in\r\norder to avoid multiplicity of litigation. But then it has certain\r\nlimitations such as that the counter claim cannot exceed the\r\npecuniary limits of the jurisdiction of the court, and that such\r\ncounter claim must be instituted before the defendant has\r\ndelivered his defence or before the time limit for delivering his\r\ndefence has expired. More importantly, such a counter claim\r\nmust be against the plaintiff! Evidently, in the present case the\r\ncounter claim was not against the plaintiffs. Moreover, as the\r\nplaintiffs had not claimed any right over the property and the Killa\r\nNos. 6//8 and 23 are not even a part of the suit property described\r\nin the plaint by the plaintiffs. Despite the same, such a claim has\r\nbeen allowed against the plaintiffs. In fact, we do not find on\r\nrecord any reply submitted by the plaintiffs against the counter\r\nclaim. To be fair, such a counter claim should have been\r\nexcluded in terms of Order VIII, Rule 6C of the CPC. Suffice it\r\nto state here that the counter claim set up by the defendants has <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">been rightly rejected by the High Court.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">17. The judgment and order dated 19.07.2017 passed by the\r\nHigh Court to the extent that it has decreed the claim of the\r\nplaintiffs on Killa Nos. 21//3/2 and 7//13 is hereby set aside. This\r\nappeal hence stands disposed of on the aforesaid terms.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9a8dd6576e5475536212474dab3e0d3c.jpg', 'cd927e67e9740511d81b6117a6df4cab.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-22', 1, '', '', '2022-08-19 00:58:32', '2022-08-22 06:30:13');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2089, 'NYMUR6b0fBXx5rQKStnX0RGdj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Commercial suit filed without following the mandatory pre-Institution mediation under Section 12A of the Commercial Courts Act is liable to be rejected. Supreme Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Patil Automation Private Limited and others Vs Rakheja Engineers Private Limited.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5333 of 2022 decided on 17 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.M Joseph and Justice Hrishikesh Roy.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The seminal question which arises for consideration is\r\nwhether the statutory pre-litigation mediation contemplated\r\nunder Section 12A of the Commercial Courts Act, 2015 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(hereinafter referred to as ‘Act’) as amended by the\r\nAmendment Act of 2018 is mandatory and whether the Courts\r\nbelow have erred in not allowing the applications filed\r\nunder Order VII Rule 11 of the Code of Civil Procedure,\r\n1908 (hereinafter referred to as ‘CPC’), to reject the\r\nplaints filed by the respondents in these appeals without\r\ncomplying with the procedure under Section 12A of the Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. The appellant is the defendant in the said suit. It\r\nfiled an application on 05.02.2021 under Order VII Rules\r\n10 and 11 read with Sections 9 and 20 of the CPC, inter\r\nalia contending that the suit was filed without adhering\r\nto Section 12A of the Act. The respondent filed its reply\r\non 23.03.2021. It contested the matter contending that the\r\nsuit was not barred for non-compliance of Section 12A of\r\nthe Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. In the course of three years, noticing certain\r\nfeatures, Parliament has decided to amend the Act.\r\nTherefore, in the year 2018, the Act came to be amended by\r\nthe Commercial Courts, Commercial Division and Commercial\r\nAppellate Division of High Courts (Amendment) Act, 2018\r\n(Act 28 of 2018) (hereinafter referred to as the “Amending\r\nAct”).<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>69. Another area of debate has been about the distinction\r\nbetween the presentation of a plaint and institution of a\r\nsuit. Section 3(2) of the Limitation Act, 1963, provides\r\nthat for the purpose of the Limitation Act, a suit is\r\ninstituted in the ordinary case, when the plaint is\r\npresented to the proper Officer. In the case of a pauper,\r\nthe suit is instituted when his application to leave to sue\r\nas a pauper is made.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>70. Sub-Rule (3) of Order IV Rule 1 was inserted by Act 46\r\nof 1999 w.e.f. 01.07.2002. Shri Sharath Chandran has drawn\r\nour attention to the Judgment of the High Court of Madras\r\nreported in Olympic Cards Limited v. Standard Chartered\r\nBank29. In the said case, the question, which arose was,\r\nwhether there was an abandonment or withdrawal of suit\r\nwithin the meaning of Order XXIII Rule 1 of the CPC, which\r\nwould operate as a bar to file a fresh suit.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>71. The contention appears to be that it may be a fair view\r\nto take that there is no institution of the suit within the\r\nmeaning of Section 12A, until the Court admits the plaint\r\nand registers it in the suit register. In other words,\r\npresentation of the plaint may not amount to institution\r\nof the suit for the purpose of Order IV Rule 1 of the CPC\r\nand Section 12A of the Act. If this view is adopted, it is\r\npointed out that before the plaint is registered after\r\npresentation and there is non-compliance with Section 12A,\r\nthe plaintiffs can, then and there, be told off the gates\r\nto first comply with the mandate of Section 12A. This\r\nprocess would not involve the Courts actually spending time\r\non such matters. In the facts, this question does not arise\r\nand, it may not be necessary to explore this matter further. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">72. We may sum-up our reasoning as follows:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Act did not originally contain Section 12A. It\r\nis by amendment in the year 2018 that Section 12A was\r\ninserted. The Statement of Objects and Reasons are </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">explicit that Section 12A was contemplated as\r\ncompulsory. The object of the Act and the Amending Act\r\nof 2018, unerringly point to at least partly foisting\r\ncompulsory mediation on a plaintiff who does not\r\ncontemplate urgent interim relief. The provision has\r\nbeen contemplated only with reference to plaintiffs who\r\ndo not contemplate urgent interim relief. The\r\nLegislature has taken care to expressly exclude the\r\nperiod undergone during mediation for reckoning\r\nlimitation under the Limitation Act, 1963. The object\r\nis clear. It is an undeniable reality that Courts in\r\nIndia are reeling under an extraordinary docket\r\nexplosion. Mediation, as an Alternative Dispute\r\nMechanism, has been identified as a workable solution\r\nin commercial matters. In other words, the cases under\r\nthe Act lend themselves to be resolved through\r\nmediation. Nobody has an absolute right to file a civil\r\nsuit. A civil suit can be barred absolutely or the bar\r\nmay operate unless certain conditions are fulfilled.\r\nCases in point, which amply illustrate this principle,\r\nare Section 80 of the CPC and Section 69 of the Indian\r\nPartnership Act. The language used in Section 12A, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which includes the word ‘shall’, certainly, go a long\r\nway to assist the Court to hold that the provision is\r\nmandatory. The entire procedure for carrying out the\r\nmediation, has been spelt out in the Rules. The parties\r\nare free to engage Counsel during mediation. The\r\nexpenses, as far as the fee payable to the Mediator,\r\nis concerned, is limited to a one-time fee, which\r\nappears to be reasonable, particularly, having regard\r\nto the fact that it is to be shared equally. A trained\r\nMediator can work wonders. Mediation must be perceived\r\nas a new mechanism of access to justice. We have already\r\nhighlighted its benefits. Any reluctance on the part\r\nof the Court to give Section 12A, a mandatory\r\ninterpretation, would result in defeating the object\r\nand intention of the Parliament. The fact that the\r\nmediation can become a non-starter, cannot be a reason\r\nto hold the provision not mandatory. Apparently, the\r\nvalue judgement of the Law-giver is to give the\r\nprovision, a modicum of voluntariness for the\r\ndefendant, whereas, the plaintiff, who approaches the\r\nCourt, must, necessarily, resort to it. Section 12A\r\nelevates the settlement under the Act and the Rules to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">an award within the meaning of Section 30(4) of the\r\nArbitration Act, giving it meaningful enforceability.\r\nThe period spent in mediation is excluded for the\r\npurpose of limitation. The Act confers power to order\r\ncosts based on conduct of the parties.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>73. In the cases before us, the suits do not contemplate\r\nurgent interim relief. As to what should happen in suits\r\nwhich do contemplate urgent interim relief or rather the\r\nmeaning of the word ‘contemplate’ or urgent interim relief,\r\nwe need not dwell upon it. The other aspect raised about\r\nthe word ‘contemplate’ is that there can be attempts to\r\nbypass the statutory mediation under Section 12A by\r\ncontending that the plaintiff is contemplating urgent\r\ninterim relief, which in reality, it is found to be without\r\nany basis. Section 80(2) of the CPC permits the suit to\r\nbe filed where urgent interim relief is sought by seeking\r\nthe leave of the court. The proviso to Section 80 (2)\r\ncontemplates that the court shall, if, after hearing the\r\nparties, is satisfied that no urgent or immediate relief\r\nneed be granted in the suit, return the plaint for\r\npresentation to the court after compliance. Our attention\r\nis drawn to the fact that Section 12A does not contemplate <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">such a procedure. This is a matter which may engage\r\nattention of the lawmaker. Again, we reiterate that these\r\nare not issues which arise for our consideration. In the\r\nfact of the cases admittedly there is no urgent interim\r\nrelief contemplated in the plaints in question.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>76. On the findings we have entered, the impugned orders\r\nmust be set aside and the applications under Order VII Rule\r\n11 allowed. This would mean that the plaints must be\r\nrejected. Necessarily, this would involve the loss of the\r\ncourt fee paid by the plaintiffs in these cases. They would\r\nhave to bring a fresh suit, no doubt after complying with\r\nSection 12A, as permitted under Order VII Rule 13.\r\nMoreover, the declaration of law by this Court would relate\r\nback to the date of the Amending Act of 2018. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>77. There is a plea by Shri Saket Sikri, that if this\r\nCourt holds that Section 12A is mandatory it may be done\r\nwith only prospective effect.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>78. The Doctrine of prospective overruling began its\r\ninnings with the decision of this Court in L.C. Golak Nath\r\nand Others v. State of Punjab and Another31. This Court in\r\nthe said case relied upon Articles 32, 141 and 142 of the\r\nConstitution and extended this doctrine which was in vogue\r\nin the United States. The principle involves giving effect\r\nto the law laid down by this Court, from a prospective\r\ndate, ordinarily the date of the judgment. There is no\r\ndispute that while initially the doctrine was confined to\r\nmatters arising under the Constitution, later on it has\r\nbeen applied to other areas of law as well.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>81. We may next notice the judgment of this Court in, P.V.\r\nGeorge & Ors. v. State of Kerala & Ors.\r\n34 In the said case,\r\nthe doctrine was sought to be invoked in a service matter.\r\nThe Full Bench of the High Court overruled a Division Bench\r\nwhich had declared a rule unconstitutional. On the strength\r\nof the Full Bench decision the employees were sought to be\r\nreverted.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>82. This is not a case where this Court is overruling its\r\nprevious decision, which was the case in the decision\r\nreported in 2005 8 SCC 618. This is also not a case where\r\nthis Court is pronouncing a law under which various\r\ntransactions have been affected void. It may be true that\r\nthe doctrine of prospective overruling may not be confined\r\nto either of the above circumstances as such and its ambit\r\nis co-extensive with the equity of a situation whereunder\r\non the law being pronounced it is likely to intrude into\r\nor reopen settled transactions. This is not a matter where\r\nthe court is overruling a decision of the High Court which\r\nhas held the field for a long period.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>83. The statute which has generated the controversy is the\r\nAmending Act of year 2018. We have noticed that there is\r\nundoubtedly a certain amount of cleavage of opinion among\r\nthe High Courts. The other feature which is to be noticed\r\nis that, this is a case where the law in question, the\r\nAmending Act containing certain Section 12A is a toddler.\r\nThe law necessarily would have teething problems at the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">nascent stage. The specified value has been lowered\r\ndrastically from Rs.1 crore to Rs.3 lakhs. The imperative\r\nneed to comply with the mandate of Section 12A which we\r\nhave unravelled if it has not been shared by the parties\r\non the advice they received or on the view prevailing in\r\nthe High Courts would necessarily mean that unless we hold\r\nthat the law, we declare is prospective such suits must\r\nperish. The court fee paid would have to be written off.\r\nIn a fresh suit which would be otherwise barred by\r\nlimitation, shelter can be taken only under Section 14 of\r\nthe Limitation Act. The availability of the power under\r\nSection 14 itself may have to be decided by the court.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">84. Having regard to all these circumstances, we would\r\ndispose of the matters in the following manner. We declare\r\nthat Section 12A of the Act is mandatory and hold that any\r\nsuit instituted violating the mandate of Section 12A must\r\nbe visited with rejection of the plaint under Order VII\r\nRule 11. This power can be exercised even suo moto by the\r\ncourt as explained earlier in the judgment. We, however,\r\nmake this declaration effective from 20.08.2022 so that\r\nconcerned stakeholders become sufficiently informed. Still\r\nfurther, we however direct that in case</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">plaints have been already rejected and no steps have been\r\ntaken within the period of limitation, the matter cannot\r\nbe reopened on the basis of this declaration. Still further,\r\nif the order of rejection of the plaint has been acted upon\r\nby filing a fresh suit, the declaration of prospective\r\neffect will not avail the plaintiff. Finally, if the plaint\r\nis filed violating Section 12A after the jurisdictional\r\nHigh Court has declared Section 12A mandatory also, the\r\nplaintiff will not be entitled to the relief.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>85. In Civil Appeal arising out of SLP (C) No. 14697 of\r\n2021 taking note of the fact that it is a case where the\r\nappellant would have succeeded and the plaint rejected, it\r\nis also necessary to order the following. The written\r\nstatement filed by the appellant shall be treated as the\r\napplication for leave to defend filed within time within\r\nthe meaning of Order XXXVII and the matter considered on\r\nthe said basis. While we disapprove of the reasoning in the\r\nimpugned orders we decline to otherwise interfere with the\r\norders and the two appeals shall stand disposed of\r\naccordingly. In Civil Appeal arising out of SLP (C)No.5737\r\nof 2022, we set aside the order directing payment of costs <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of Rs.10,000/-. The petition for permission to file SLP\r\nin SLP (C) Diary No. 29458 of 2021 and the said SLP shall\r\nstand disposed of as already indicated in the judgment.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '43d8aa8ed132d2682d96b1f304b1c5a1.jpeg', '581463b18d88bc566bd910b89ad43a46.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-19', 1, '', '', '2022-08-19 01:17:44', '2022-08-19 06:18:29'),
(2090, 'uSrkWLUQoMCvUXp80r9XE8jAW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A counter claim can be made only against the plaintiff and only in respect of the claim of the plaintiff. Defendant cannot make counter claim for a property not claimed by the plaintiff in the suit. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">Satyender and\r\nothers Vs Saroj and others</span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">Civil Appeal\r\n4833 of 2022 decided on 17 August 2022.</span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span lang=\"EN-US\" style=\"font-size: 12pt;\"><b>Justice Uday\r\nUmesh Lalit, Justice S. Ravindra Bhat and Justice Sudhanshu Shulia.</b></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">2. The case\r\narises out of the proceedings initiated by the plaintiffs (respondents herein)\r\nfor declaration and possession on an agricultural land. Suit was filed by the\r\nplaintiffs, claiming to be owners of the property, which in total measured 80\r\nKanals, 19 Marlas. The property is in the revenue village Gagarwas, Tehsil\r\nLoharu, District Bhiwani (Haryana). Their case was that defendant No. 2 was\r\ntheir tenant who had sub-let the land to his son </span></b><b><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">(defendant\r\nNo.1), without the consent of the plaintiffs/landlords and hence, the two\r\ndefendants were liable to be evicted and the possession of the land was to be\r\nhanded over to the plaintiffs. The plaintiffs additionally had built their case\r\non an assertion that the land was earlier in possession of one Ram Kaur on\r\nwhich Ganpat Rai, the father of defendant No. 2 was the tenant. Ganpat Rai\r\nsurrendered his tenancy of the disputed land to Ram Kaur in the year 1976. Later\r\nin the year 1994, the plaintiffs had won a suit against Ms. Ram Kaur and the\r\nland which is the subject matter of the present dispute now belongs to them,\r\nhence they have stepped into the shoes of Ms. Ram Kaur and are now the owners\r\nof the property.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">3. Defendant\r\nNo. 1 (Satyender) is the son of defendant No.2 (Ishwar Singh). The stand taken\r\nby defendant No.1 was that he had no concern with the land in question. The\r\ndefence set up by him was that he was born in the year 1966 and hence, he was\r\nonly twelve years of age in the year 1978 when the sub-tenancy is alleged to\r\nhave been created in his favour, as per the revenue records. He never\r\ncultivated the land and the cultivation was done by his father and his two\r\nuncles, and the entries made in the revenue record showing him to be a tenant\r\nor a sub-tenant are wrong and have been made by the plaintiffs, in\r\ncollusion with the revenue officials.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">4. Defendant\r\nNo.2 filed a separate written statement. According to defendant No. 2, one\r\nIndraj was the original owner of the property, who had given this land in\r\ntenancy to defendant No. 2’s father Ganpat Rai. Indraj died in the year 1976\r\nand was succeeded by Ms. Ram Kaur. Meanwhile, the father of the defendant No.\r\n2, Ganpat Rai died in the year 1978 and consequently he and his two other\r\nbrothers namely, Sombit and Om Prakash had jointly inherited the tenancy.\r\nThereafter, all the three brothers became tenants under Ms. Ram Kaur and they\r\ncontinued to be in possession of the suit property. They denied that they were\r\never tenant of the plaintiffs.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span lang=\"EN-US\" style=\"font-size: 12pt;\">5. In addition\r\nto their written statement, a counter claim was also set up by defendant No. 2.\r\nThe defendant No.2 claimed in his written statement that in addition to the\r\nKhasra and Killa numbers given in the plaint, he was also in possession of two\r\nother Killa nos. i.e., 6//18 and 23. In other words, their counter claim on the\r\nabove two mentioned plot numbers was in addition to the claim on the plots as\r\nmentioned by the plaintiffs. The suit was ultimately </span></b><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">dismissed by the Trial Court on the\r\nfindings that the plaintiffs could neither prove their right on the property,\r\nnor could they prove the fact that the defendant No.2 had created a sub-tenancy\r\nin favour of his son, i.e., defendant No.1. The counter claim set up by the\r\ndefendant No. 2 was decreed</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>11. Initially, it was held by this\r\nCourt (in Kulwant Kaur v. Gurdial Singh Mann3 ) that after the 1976 Amendment,\r\nSection 100 of the CPC would be applicable in Punjab & Haryana and not\r\nSection 41 of the Punjab Courts Act, 1918 and a second appeal has to be decided\r\nonly on a “substantial question of law”. It was held that after the 1976\r\nAmendment Act, Section 41 of the Punjab Courts Act, stood repealed.\r\nAdditionally, it was also held that Section 41 of the Punjab Courts Act was\r\nrepugnant to Section 100 CPC in view of Article 254 of the Constitution of\r\nIndia.</b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><span style=\"font-size: 12pt;\"> </span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>15. Be that as it may, though the\r\nrequirement of formulation of a substantial question of law was not necessary,\r\nyet Section 41 of the Punjab Courts Act, requires that only such decisions are\r\nto be considered in second appeal which are contrary to law or to some custom\r\nor usage having the force of law or the court below have failed to determine\r\nsome material issue of law or custom or usage having the force of law.\r\nTherefore, what is important is still a “question of law”. In other words,\r\nsecond appeal is not a forum </b><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">where\r\ncourt has to re-examine or re-appreciate questions of fact settled by the Trial\r\nCourt and the Appellate Court. The plaintiffs had claimed right over certain\r\nagricultural land and their case was that they have the right to be declared\r\nthe owner of this property and the possession be handed over to the them, for\r\nthe reasons that on this particular property defendants and their\r\npredecessors-in-interest were the tenants of the plaintiffs. Their case was\r\nthat defendant No. 2 was their tenant who had sub-let the property in favour of\r\nhis son, that is defendant No. 1 and therefore, the property should be reverted\r\nback to the plaintiffs and they should be declared the owner and should be\r\ngiven the possession of the property as well. Both the Trial Court as well as\r\nthe First Appellate Court had held after evaluating the evidence placed by the\r\nplaintiffs that the defendant No. 2 and his brothers (who were not even made a\r\nparty by the plaintiffs) were the tenants on the property and defendant No.2\r\nhad not sub-let the property in favour of his son that is defendant No. 1 and\r\nthe revenue entries being made in this regard in the year 1978 are wrong and\r\nwithout any basis as there was no order of any revenue authority for making\r\nsuch an entry. In short, the plaintiffs had failed to prove their case as owner\r\nof the land in dispute. Hence their case of declaration and possession was\r\ndismissed. The Second Appellate Court however, quite erroneously, and without\r\nany justification, gave an entirely new finding regarding two Killa Nos.\r\n21//3/2 and 7//13 on which the plaintiffs claimed relief of declaration and\r\npossession, on the same grounds as raised by them for the other Killa Nos. The\r\npleadings also show that the defendants had made a general denial of the\r\nplaintiffs’ claim for all the plots. Yet, the High Court held that since the\r\ndefendants had not made any claim for plot nos. 21//3/2 and 7//13 and therefore\r\nby logic a decree of declaration of possession ought to have been given to the\r\nplaintiffs for these plots! This reasoning of the second Appellate Court is\r\nerroneous for the simple reason that the burden of proof was on the plaintiffs\r\nto prove their case, which they had failed. They have not been able to prove to\r\nthe satisfaction of the Trial Court as well as the First Appellate Court about\r\ntheir claim of any kind over this property. Merely because the defendant did\r\nnot raise a counter claim on this property it would not ipso facto mean that a\r\ndecree ought to have been granted in favour of the plaintiffs. Plaintiffs have\r\nto prove their case on the strength of their evidence. For this reason, the\r\nreasoning given by the Second Appellate Court for decreeing the claim of the\r\nplaintiff for plot nos. 21//3/2 and 7//13 is incorrect and to that extent\r\nis liable to be set aside.</span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\"><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">16. The other finding of Second\r\nAppellate Court regarding the counter claim of the defendants on Killa Nos.\r\n6//18 and 23 is, however, correct and is based on right interpretation of Order\r\nVIII, Rule 6A of CPC. From the pleadings of the plaintiffs, it is clear that\r\nthey had never raised any claim on Killa No. 6//18 or Killa No. 23. The\r\ndefendants in their written statement while denying the rights of the\r\nplaintiffs on the land of which particulars had been given by the plaintiffs,\r\nquite ingeniously inserted the two Killa Nos.6//18 and 23, setting a\r\ncounter-claim on these plots. The Trial Court and the First Appellate Court\r\nwhile dismissing the plaintiffs’ suit had allowed this claim for without\r\nassigning any reasons. In fact, this counter claim which was raised by the\r\ndefendant is barred under Order VIII, Rule 6A of the CPC.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>A counter claim can be set up only\r\n“against the claim of the plaintiffs”. Since there was no claim of the\r\nplaintiffs regarding Killa No. 6//8 and 23, the defendants were barred to raise\r\nany counter claim on these Killa numbers in view of Order VIII, Rule 6A of the\r\nCPC as it has nothing to do with the plaintiffs. It is true that a counter\r\nclaim can be made by the defendant, even on a </b><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">separate or independent cause of action</span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\"><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b>The Legislature permits the institution\r\nof a counter claim, in order to avoid multiplicity of litigation. But then it\r\nhas certain limitations such as that the counter claim cannot exceed the\r\npecuniary limits of the jurisdiction of the court, and that such counter claim\r\nmust be instituted before the defendant has delivered his defence or before the\r\ntime limit for delivering his defence has expired. More importantly, such a\r\ncounter claim must be against the plaintiff! Evidently, in the present case the\r\ncounter claim was not against the plaintiffs. Moreover, as the plaintiffs had\r\nnot claimed any right over the property and the Killa Nos. 6//8 and 23 are not\r\neven a part of the suit property described in the plaint by the plaintiffs.\r\nDespite the same, such a claim has been allowed against the plaintiffs. In\r\nfact, we do not find on record any reply submitted by the plaintiffs against\r\nthe counter claim. To be fair, such a counter claim should have been excluded\r\nin terms of Order VIII, Rule 6C of the CPC. Suffice it to state here that the\r\ncounter claim set up by the defendants has </b><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">been rightly rejected by the High\r\nCourt.</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">\r\n<!--[if !supportLineBreakNewLine]--><br>\r\n<!--[endif]--></span></b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span style=\"font-size: 12pt; font-family: \"var(--bs-font-sans-serif)\", serif;\">17. The judgment and order dated\r\n19.07.2017 passed by the High Court to the extent that it has decreed the claim\r\nof the plaintiffs on Killa Nos. 21//3/2 and 7//13 is hereby set aside. This\r\nappeal hence stands disposed of on the aforesaid terms.</span></b><b> </b><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n</p><p class=\"MsoNormal\"><o:p> </o:p></p>', '5f0aef899f9f9bea4e786e42200e2288.jpg', '21f29662a92f1fcb62f721a91e21cdfe.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-19', 1, '', '', '2022-08-19 01:57:38', '2022-08-19 08:16:41');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2094, 'ynKjVDV8VlwSuUwyPsP0gsiYI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Inconsistency test between laws made by Parliament and laws made by the Legislatures of States under Article 254 applies only to the laws made after the implementation of the Constitution of India. Supreme Court reiterates.', '<p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\" style=\"font-size: 12pt;\">Satyender and others Vs Saroj and others</span></span><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\" style=\"font-size: 12pt;\">Civil Appeal 4833 of 2022 decided on 17 August 2022.</span></span><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span lang=\"EN-US\" style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\">Justice Uday Umesh Lalit, Justice S. Ravindra Bhat and Justice Sudhanshu Dhulia.</span></span></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\" style=\"font-size: 12pt;\"><br></span></span><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\" style=\"font-size: 12pt;\">2. The case arises out of the proceedings initiated by the plaintiffs (respondents herein) for declaration and possession on an agricultural land. Suit was filed by the plaintiffs, claiming to be owners of the property, which in total measured 80 Kanals, 19 Marlas. The property is in the revenue village Gagarwas, Tehsil Loharu, District Bhiwani (Haryana). Their case was that defendant No. 2 was their tenant who had sub-let the land to his son&nbsp;</span></span><span style=\"font-weight: bolder;\"><span lang=\"EN-US\" var(--bs-font-sans-serif)\",=\"\" serif;\"=\"\" style=\"font-size: 12pt;\">(defendant No.1), without the consent of the plaintiffs/landlords and hence, the two defendants were liable to be evicted and the possession of the land was to be handed over to the plaintiffs. The plaintiffs additionally had built their case on an assertion that the land was earlier in possession of one Ram Kaur on which Ganpat Rai, the father of defendant No. 2 was the tenant. Ganpat Rai surrendered his tenancy of the disputed land to Ram Kaur in the year 1976. Later in the year 1994, the plaintiffs had won a suit against Ms. Ram Kaur and the land which is the subject matter of the present dispute now belongs to them, hence they have stepped into the shoes of Ms. Ram Kaur and are now the owners of the property.</span></span></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\" var(--bs-font-sans-serif)\",=\"\" serif;\"=\"\" style=\"font-size: 12pt;\"><br></span></span><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\" var(--bs-font-sans-serif)\",=\"\" serif;\"=\"\" style=\"font-size: 12pt;\">3. Defendant No. 1 (Satyender) is the son of defendant No.2 (Ishwar Singh). The stand taken by defendant No.1 was that he had no concern with the land in question. The defence set up by him was that he was born in the year 1966 and hence, he was only twelve years of age in the year 1978 when the sub-tenancy is alleged to have been created in his favour, as per the revenue records. He never cultivated the land and the cultivation was done by his father and his two uncles, and the entries made in the revenue record showing him to be a tenant or a sub-tenant are&nbsp;wrong and have been made by the plaintiffs, in collusion with the revenue officials.</span></span></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\" var(--bs-font-sans-serif)\",=\"\" serif;\"=\"\" style=\"font-size: 12pt;\"><br></span></span><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\" var(--bs-font-sans-serif)\",=\"\" serif;\"=\"\" style=\"font-size: 12pt;\">4. Defendant No.2 filed a separate written statement. According to defendant No. 2, one Indraj was the original owner of the property, who had given this land in tenancy to defendant No. 2’s father Ganpat Rai. Indraj died in the year 1976 and was succeeded by Ms. Ram Kaur. Meanwhile, the father of the defendant No. 2, Ganpat Rai died in the year 1978 and consequently he and his two other brothers namely, Sombit and Om Prakash had jointly inherited the tenancy. Thereafter, all the three brothers became tenants under Ms. Ram Kaur and they continued to be in possession of the suit property. They denied that they were ever tenant of the plaintiffs.</span></span></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\" var(--bs-font-sans-serif)\",=\"\" serif;\"=\"\" style=\"font-size: 12pt;\"><br></span></span><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\" style=\"font-size: 12pt;\">5. In addition to their written statement, a counter claim was also set up by defendant No. 2. The defendant No.2 claimed in his written statement that in addition to the Khasra and Killa numbers given in the plaint, he was also in possession of two other Killa nos. i.e., 6//18 and 23. In other words, their counter claim on the above two mentioned plot numbers was in addition to the claim on the plots as mentioned by the plaintiffs. The suit was ultimately&nbsp;</span></span><span style=\"font-weight: bolder;\">dismissed by the Trial Court on the findings that the plaintiffs could neither prove their right on the property, nor could they prove the fact that the defendant No.2 had created a sub-tenancy in favour of his son, i.e., defendant No.1. The counter claim set up by the defendant No. 2 was decreed</span></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><b>13. It was further held [in Pankajakshi] that the question of\r\nrepugnancy and its application was also not correctly decided in\r\nKulwant Kaur as Article 254 of the Constitution of India, was not\r\napplicable in that case. Section 254 would be applicable only to\r\nthe laws made after the implementation of the Constitution of\r\nIndia and Section 41 of the Punjab Courts Act is of 1918 vintage&nbsp;and it was not made by a Legislature of the State after the\r\nConstitution of India had come into force. The Punjab Courts Act,\r\n1918 was enacted under the provisions of the Government of India\r\nAct, 1935 and although by Article 3954 of the Constitution of India,\r\nthe Government of India Act, 1935 stood repealed yet by virtue of\r\nprovisions of Article 372(1)5 of Constitution of India all the laws in\r\nforce in the territory of India immediately before the\r\ncommencement of the Constitution were to continue in force until\r\naltered or repealed or amended by a competent legislature or\r\nother competent authority. Since Section 41 of the Punjab Courts\r\nAct has not been altered, repealed or amended by State\r\nLegislature of Punjab or Haryana, it will continue to be in force.</b>&nbsp;</p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span style=\"font-weight: bolder;\"><br></span><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span style=\"font-weight: bolder;\">11. Initially, it was held by this Court (in Kulwant Kaur v. Gurdial Singh Mann3 ) that after the 1976 Amendment, Section 100 of the CPC would be applicable in Punjab &amp; Haryana and not Section 41 of the Punjab Courts Act, 1918 and a second appeal has to be decided only on a “substantial question of law”. It was held that after the 1976 Amendment Act, Section 41 of the Punjab Courts Act, stood repealed. Additionally, it was also held that Section 41 of the Punjab Courts Act was repugnant to Section 100 CPC in view of Article 254 of the Constitution of India.</span><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span style=\"font-size: 12pt;\">&nbsp;</span></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span style=\"font-weight: bolder;\">15. Be that as it may, though the requirement of formulation of a substantial question of law was not necessary, yet Section 41 of the Punjab Courts Act, requires that only such decisions are to be considered in second appeal which are contrary to law or to some custom or usage having the force of law or the court below have failed to determine some material issue of law or custom or usage having the force of law. Therefore, what is important is still a “question of law”. In other words, second appeal is not a forum&nbsp;</span><span style=\"font-weight: bolder;\">where court has to re-examine or re-appreciate questions of fact settled by the Trial Court and the Appellate Court. The plaintiffs had claimed right over certain agricultural land and their case was that they have the right to be declared the owner of this property and the possession be handed over to the them, for the reasons that on this particular property defendants and their predecessors-in-interest were the tenants of the plaintiffs. Their case was that defendant No. 2 was their tenant who had sub-let the property in favour of his son, that is defendant No. 1 and therefore, the property should be reverted back to the plaintiffs and they should be declared the owner and should be given the possession of the property as well. Both the Trial Court as well as the First Appellate Court had held after evaluating the evidence placed by the plaintiffs that the defendant No. 2 and his brothers (who were not even made a party by the plaintiffs) were the tenants on the property and defendant No.2 had not sub-let the property in favour of his son that is defendant No. 1 and the revenue entries being made in this regard in the year 1978 are wrong and without any basis as there was no order of any revenue authority for making such an entry. In short, the plaintiffs had failed to prove their case as owner of the land in dispute. Hence their case of&nbsp;declaration and possession was dismissed. The Second Appellate Court however, quite erroneously, and without any justification, gave an entirely new finding regarding two Killa Nos. 21//3/2 and 7//13 on which the plaintiffs claimed relief of declaration and possession, on the same grounds as raised by them for the other Killa Nos. The pleadings also show that the defendants had made a general denial of the plaintiffs’ claim for all the plots. Yet, the High Court held that since the defendants had not made any claim for plot nos. 21//3/2 and 7//13 and therefore by logic a decree of declaration of possession ought to have been given to the plaintiffs for these plots! This reasoning of the second Appellate Court is erroneous for the simple reason that the burden of proof was on the plaintiffs to prove their case, which they had failed. They have not been able to prove to the satisfaction of the Trial Court as well as the First Appellate Court about their claim of any kind over this property. Merely because the defendant did not raise a counter claim on this property it would not ipso facto mean that a decree ought to have been granted in favour of the plaintiffs. Plaintiffs have to prove their case on the strength of their evidence. For this reason, the reasoning given by the Second Appellate Court for decreeing the claim of the plaintiff for&nbsp;plot nos. 21//3/2 and 7//13 is incorrect and to that extent is liable to be set aside.</span><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span style=\"font-weight: bolder;\"><br></span><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span style=\"font-weight: bolder;\">16. The other finding of Second Appellate Court regarding the counter claim of the defendants on Killa Nos. 6//18 and 23 is, however, correct and is based on right interpretation of Order VIII, Rule 6A of CPC. From the pleadings of the plaintiffs, it is clear that they had never raised any claim on Killa No. 6//18 or Killa No. 23. The defendants in their written statement while denying the rights of the plaintiffs on the land of which particulars had been given by the plaintiffs, quite ingeniously inserted the two Killa Nos.6//18 and 23, setting a counter-claim on these plots. The Trial Court and the First Appellate Court while dismissing the plaintiffs’ suit had allowed this claim for without assigning any reasons. In fact, this counter claim which was raised by the defendant is barred under Order VIII, Rule 6A of the CPC.</span></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span style=\"font-weight: bolder;\"><br></span><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span style=\"font-weight: bolder;\">A counter claim can be set up only “against the claim of the plaintiffs”. Since there was no claim of the plaintiffs regarding Killa No. 6//8 and 23, the defendants were barred to raise any counter claim on these Killa numbers in view of Order VIII, Rule 6A of the CPC as it has nothing to do with the plaintiffs. It is true that a counter claim can be made by the defendant, even on a&nbsp;</span><span style=\"font-weight: bolder;\">separate or independent cause of action</span><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span style=\"font-weight: bolder;\"><br></span><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span style=\"font-weight: bolder;\">The Legislature permits the institution of a counter claim, in order to avoid multiplicity of litigation. But then it has certain limitations such as that the counter claim cannot exceed the pecuniary limits of the jurisdiction of the court, and that such counter claim must be instituted before the defendant has delivered his defence or before the time limit for delivering his defence has expired. More importantly, such a counter claim must be against the plaintiff! Evidently, in the present case the counter claim was not against the plaintiffs. Moreover, as the plaintiffs had not claimed any right over the property and the Killa Nos. 6//8 and 23 are not even a part of the suit property described in the plaint by the plaintiffs. Despite the same, such a claim has been allowed against the plaintiffs. In fact, we do not find on record any reply submitted by the plaintiffs against the counter claim. To be fair, such a counter claim should have been excluded in terms of Order VIII, Rule 6C of the CPC. Suffice it to state here that the counter claim set up by the defendants has&nbsp;</span><span style=\"font-weight: bolder;\">been rightly rejected by the High Court.</span></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span style=\"font-weight: bolder;\"><br></span><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin-bottom: 0cm; line-height: normal;\"><span style=\"font-weight: bolder;\">17. The judgment and order dated 19.07.2017 passed by the High Court to the extent that it has decreed the claim of the plaintiffs on Killa Nos. 21//3/2 and 7//13 is hereby set aside. This appeal hence stands disposed of on the aforesaid terms.</span><span style=\"font-weight: bolder;\">&nbsp;</span><span style=\"font-size: 12pt;\"><o:p></o:p></span></p><p></p><p class=\"MsoNormal\"><o:p>&nbsp;</o:p></p>', '4b272999153b4f4b27a94508a93e106f.jpg', '394aa354d95386a2b7268284d15eb4ba.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-22', 1, '', '', '2022-08-19 18:21:10', '2022-08-26 18:59:20'),
(2100, 'lH8UX2ApuNy7StVQeKgv4g366', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Acceptance of lesser share by father in ancestral properties in family partition will not prevent his son from claiming actual/correct share in the properties. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Thimmegowda and others Vs Harsha Virupaksha and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>RSA 50 of 2014 decided on 1 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sachin Shankar Magadum.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The captioned Second Appeal is filed by the unsuccessful defendants who are questioning the concurrent judgment of the Courts below in granting share in the suit schedule property.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Plaintiff claims to be the son of defendant No.2 namely, Sri.S.T.Veerupaksha @ Thimmegowda. His grievance is that after marriage his mother i.e., G.N.Lathamani led in marital life only for a period of one year. On account of ill treatment, she driven out of marital home and she was compelled to reside at her parental house. The cause of action to file the present suit is on account of the collusive partition effected between his father and his brothers as well as his grand father who is arrayed as defendant No.1. Plaintiff alleged that his father i.e., defendant No.2 in collusion with his grand father and uncles have deliberately allotted lesser share in family properties which totally measures 7 acres 32 guntas.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. The defendants having set up a plea of prior partition however, did not choose to substantiate the said defence by producing documents indicating that there is a partition in the family. Even if defendants were to place reliance on the partition deed and claim that there is already severance in the family, this Court has to examine the said defence in the context of the relationship between the plaintiff and his father i.e., defendant No.2 in the present case on hand. The cause of action and the consequent actions by the litigants has to be gathered from the pleadings on record. It is not in dispute that plaintiff\'s mother is residing at her parental house and the marital relationship between defendant No.2 and the present plaintiffs next friend i.e., G.N.Lathamani are not cordial. The defence set up by defendants indicate that defendant No.2 who is the father of plaintiff is allotted 38 guntas in the total extent measuring 7 acres 32 guntas. The conduct of the defendants clearly reflects with the other coparceners taking undue advantage of disturbed relationship of defendant No.2 have conveniently chosen to allot a lesser share to the defendant No.2, who has also conveniently agreed to accept a lesser share. Therefore, the question that needs to be examined is whether by voluntarily accepting a lesser share by defendant No.2, would affect the rights of plaintiff who is a coparcener and has got independent right over the suit schedule properties. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. If all these significant details are taken into consideration, the concurrent findings recorded by the Courts below that the plea of prior partition is not proved by the defendants is in accordance with law. What is noticed by this court is that defendants having set up a plea of prior partition have conveniently given a go by to the said defence. During trial, a feeble attempt is made by the defendants and it is claimed that all the suit schedule properties are self acquired properties of defendant no.1. This stand taken by the defendants during trial will not come to the aid of defendants insofar as a plea of prior partition is concerned. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. The Appellate Court has rightly rejected the application filed under the provision of Order 41 Rule 27 of CPC. The unregistered document cannot be admitted in evidence on two counts. The unregistered partition deed is not required for effective adjudication of controversy between the parties. Even if defendant No.2 has voluntarily accepted a lesser share in the properties, that will not bind the plaintiff who is a coparcener. The plaintiff has got independent right by birth. Therefore, the additional evidence which was sought to be produced before the Appellate Court is not at all relevant and not necessary for effective adjudication. The averments made in the affidavit filed in support of application even otherwise does not satisfy the ingredients enumerated under the provisions of Order 41 Rule 27 of CPC. Therefore, if the said document is not taken on record, no prejudice is caused to defendants.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 10. Therefore, no substantial question of law arises. The judgment and decree rendered by the Courts below is based on legal evidence led in by the plaintiff and in absence of rebuttal evidence led in by the defendants. Judgment cited by counsel for appellants in Civil Appeal No.2413/2006 is not at all applicable to the present case on hand. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Accordingly, the regular second appeal is devoid of merits and stands dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '50f126f77a9598e2c90dc6c1b37b8861.JPG', 'caa585d29826eb69fe239db2eee9b2dc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-23', 1, '', '', '2022-08-22 20:09:26', '2022-08-23 13:55:53'),
(2095, 'SyI7CzS7tWOIvYzMpemGC8K73', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transfer of case under Section 127 of the Income Tax Act from one State to another. High Court within whose jurisdiction the Assessing Officer has passed the order will continue to exercise the jurisdiction of appeal. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>PR. Commissioner of Income Tax Vs M/S ABC Papers Limited.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4252 of 2022 decided on 18 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Uday Umesh Lalit, Justice S. Ravindra Bhat and Justice Pamidighantam Sri Narasimha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. These appeals give rise to an important question concerning appellate\r\njurisdiction of the High Courts under Section 260A of the Income Tax Act, 19611\r\nagainst judgments of Income Tax Appellate Tribunals . As Benches of the ITAT\r\nare constituted to exercise jurisdiction over more than one state, each state having\r\na separate High Court, question arose as to which of the High Court is the\r\nappropriate Court for filing appeals under Section 260A. The question arose <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">because Section 260A is open-textual and does not specify the High Court before\r\nwhich an appeal would lie in cases where Tribunals operated for plurality of\r\nStates. This question came to be conclusively answered by the High Court of\r\nDelhi in the case of Seth Banarsi Dass Gupta v. Commissioner of Income Tax ,\r\nwherein it was held that the appropriate High Court would be the one where the\r\nAssessing Authority is situated. This judgment continuous to hold the field.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. The Appellant herein, M/s. ABC Papers Ltd.6\r\nis a company engaged in the\r\nmanufacture of writing and printing paper. For the assessment year 2008-09, the\r\nAssessee filed its income tax returns before the Assessing Officer, New Delhi, on\r\n30.09.2008. The Deputy Commissioner of Income Tax, Circle-1(1), New Delhi,\r\nissued a notice under Section 143 (2) of the Act and followed it up by an order of\r\nassessment dated 30.12.2010. Aggrieved by that order, the Assessee preferred an\r\nappeal to the Commissioner of Income Tax (Appeals) - IV, New Delhi, and by\r\nhis order dated 16.02.2012, the Commissioner allowed the appeal. Against this\r\nappellate order, the Revenue carried the matter to ITAT, New Delhi. The ITAT,\r\nNew Delhi, by its order dated 11.05.2017, upheld the order of the CIT\r\n(Appeals) - IV, New Delhi, and dismissed the appeal filed by the Revenue.\r\nAgainst this order of the ITAT, the Revenue filed ITA No. 517 of 2017 before\r\nthe High Court of Punjab & Haryana.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. It is important to note certain events that overtook the above-referred\r\nproceedings. While the matter was pending appeal before the CIT (Appeals) - IV,\r\nNew Delhi, as indicated above, a search operation under Section 132(1) of the\r\nAct was carried out on 04.05.2011 at the office and factory of the Assessee in\r\nChandigarh and certain places in the State of Punjab, by the Directorate of Income\r\nTax (Investigation), Ludhiana. Yet another development that took place after the\r\nsearch operation was that, by an order dated 26.06.2013 passed under Section 127\r\nof the Act, the Commissioner of Income Tax (Central), Ludhiana, centralized the\r\ncases of the Assessee for the assessment years 2006-07 to 2013-14 and transferred\r\nthe same to Central Circle, Ghaziabad.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. The decision in the case of Sahara is followed by a subsequent Bench of\r\nthe High Court of Delhi in Aar Bee. In this case, the assessment order was passed\r\nin Jammu, an appeal against that order was decided by CIT (Appeals), Jammu,\r\nand thereafter, an appeal came to be decided by ITAT, Amritsar. Immediately\r\nafter the ITAT order, the records of the assessee came to be transferred from\r\nJammu to New Delhi by an order under Section 127 of the Act. Hence, an appeal\r\nagainst the ITAT order was filed before the High Court of Delhi. When the matter\r\ncame up before the High Court of Delhi, it was contended that the High Court of\r\nDelhi did not have jurisdiction to entertain the appeal in as much as the situs of\r\nthe Assessing Officer was in Jammu. In support, the decision of the High Court <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of Punjab & Haryana in Motorola, was relied upon</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. The reasoning adopted by the High Court of Delhi in Sahara is based only\r\non the meaning that it attributed to the expression ‘cases’ in the Explanation to\r\nSection 127(4) of the Act. The High Court of Delhi was of the view that ‘cases’\r\nmust include within its sweep, not only the cases pending before the Authorities\r\nenlisted under Section 116 of the Act, but also the proceedings before the ITAT\r\nas well as a High Court. We are of the opinion that the High Court of Delhi has\r\nmisread the scope and ambit of Section 127.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. We will explain this in detail. Section 127 occurs in Chapter XIII of the\r\nAct which relates to Income Tax Authorities. In the same chapter, Section 116\r\nenlists the Income Tax Authorities and Section 120 specifies the jurisdiction of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">such Authorities. While Section 124 specifically speaks of the jurisdiction of\r\nAssessing Officers, Section 127 enables a higher authority to transfer a ‘case’\r\nfrom one Assessing Officer to another Assessing Officer. All these provisions in\r\nChapter XIII only relate to the executive or administrative powers of Income Tax\r\nAuthorities. We have no hesitation in our mind that the vesting of appellate\r\njurisdiction has no bearing on judicial remedies provided in Chapter XX of the\r\nAct before the ITAT and the High Court. The mistake committed by the High\r\nCourt was in assuming that the expression “case” in the Explanation to SubSection 4 of Section 127 has an overarching effect and would include the\r\nproceedings pending before the ITAT as well as a High Court. This fundamental\r\nerror has led the Division Bench of the High Court of Delhi to come to a\r\nconclusion that an order of transfer made under Section 127 would have the effect\r\nof transferring the case “lock, stock and barrel” not only from the jurisdiction of\r\nthe ITAT, but also from that of the High Court in which the Assessing Officer\r\nwas located, and vest it in the High Court having jurisdiction over the transferee\r\nAssessing Officer.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. Returning to the analyses in the decision in Sahara, we have noticed that\r\nthe Division Bench of the High Court of Delhi sought to distinguish the two\r\ndecisions of the very same High Court in Suresh Desai and Digvijay Chemicals\r\non the ground that those cases did not involve the transfer of cases of the very\r\nsame assessment year. We will reformulate this as a proposition of law. If it is the\r\naccepted principle to determine the jurisdiction of a High Court under Section\r\n260A of the Act on the basis of the location of the Assessing Officer who assessed\r\nthe case, then, by the strength of the very same logic, upon transfer of a case to\r\nanother Assessing Officer under Section 127, the jurisdiction under Section 260A\r\nmust be with the High Court in whose jurisdiction the new Assessing Officer is\r\nlocated. A logical extension of this argument is that, once the case is transferred <span style=\"font-size: 12pt;\">to an Assessing Officer situated outside the jurisdiction of the existing High\r\nCourt, the entire files relating to the case should now be in the possession and\r\ncustody of the new Assessing Officer. It could be argued that the Assessing\r\nOfficer who exercised the jurisdiction before its transfer will not be in a position\r\nto assist the High Court, further, he cannot implement the decision of that High\r\nCourt, after it decides the question of law as he is no more the Assessing Officer.\r\nWe will now proceed to deal with these arguments.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. The binding nature of decisions of an appellate court established under a\r\nstatute on subordinate courts and tribunals within the territorial jurisdiction of the\r\nState, is a larger principle involving consistency, certainty and judicial discipline,\r\nand it has a direct bearing on the rule of law. This ‘need for order’ and consistency\r\nin decision making must inform our interpretation of judicial remedies. An\r\nimportant reason adopted in the case of Seth Banarasi Dass Gupta, further\r\nhighlighted by Justice Lahoti in Suresh Desai, is that a decision of a High Court\r\nis binding on subordinate courts as well as tribunals operating within its territorial\r\njurisdiction. It is for this very reason that the Assessing Officer, Commissioner of\r\nAppeals and the ITAT operate under the concerned High Court as one unit, for\r\nconsistency and systematic development of the law. It is also important to note\r\nthat the decisions of the High Court in whose jurisdiction the transferee Assessing\r\nOfficer is situated do not bind the Authorities or the ITAT which had passed\r\norders before the transfer of the case has taken place. This creates an anomalous\r\nsituation, as the erroneous principle adopted by the authority or the ITAT, even <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">if corrected by the High Court outside its jurisdiction, would not be binding on\r\nthem.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>30. The legal structure under the Income Tax Act commencing with Assessing\r\nOfficer, the Commissioner of Appeals, ITAT and finally the High Court under\r\nSection 260A must be seen as a lineal progression of judicial remedies.\r\nCulmination of all these proceedings in question of law jurisdiction of the High\r\nCourt under Section 260A of the Act is of special significance as it depicts the\r\noverarching judicial superintendence of the High Court over Tribunals and other\r\nAuthorities operating within its territorial jurisdiction.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">31. The power of transfer exercisable under Section 127 is relatable only to the\r\njurisdiction of the Income Tax Authorities. It has no bearing on the ITAT, much\r\nless on a High Court. If we accept the submission, it will have the effect of the\r\nexecutive having the power to determine the jurisdiction of a High Court. This\r\ncan never be the intention of the Parliament. The jurisdiction of a High Court\r\nstands on its own footing by virtue of Section 260A read with Section 269 of the\r\nAct. While interpreting a judicial remedy, a Constitutional Court should not adopt\r\nan approach where the identity of the appellate forum would be contingent upon\r\nor vacillates subject to the exercise of some other power. Such an interpretation\r\nwill clearly be against the interest of justice. Under Section 127, the authorities\r\nhave the power to transfer a case either upon the request of an assessee or for their\r\nown reasons. Though the decision under Section 127 is subject to judicial review</span><span style=\"font-size: 12pt;\">  </span><span style=\"font-size: 12pt;\">or even an appellate scrutiny, this Court for larger reasons would avoid an\r\ninterpretation that would render the appellate jurisdiction of a High Court\r\ndependent upon the executive power. As a matter of principle, transfer of a case\r\nfrom one judicial forum to another judicial forum, without the intervention of a\r\nCourt of law is against the independence of judiciary. This is true, particularly,\r\nwhen such a transfer can occur in exercise of pure executive power. This is a yet\r\nanother reason for rejecting the interpretation adopted in the case of Sahara.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>32. For the reasons stated above, we hold that the decision of the High Court\r\nof Delhi in Sahara and Aar Bee do not lay down the correct law and therefore,\r\nwe overrule these judgments.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>33. In conclusion, we hold that appeals against every decision of the ITAT\r\nshall lie only before the High Court within whose jurisdiction the Assessing\r\nOfficer who passed the assessment order is situated. Even if the case or cases of\r\nan assessee are transferred in exercise of power under Section 127 of the Act, the\r\nHigh Court within whose jurisdiction the Assessing Officer has passed the order,\r\nshall continue to exercise the jurisdiction of appeal. This principle is applicable\r\neven if the transfer is under Section 127 for the same assessment year(s).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '102d921847d242b7e5a22bb112fb3215.jpg', 'dc47304f4e49a2ab22b8a9d2d864d5a9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-20', 1, '', '', '2022-08-19 18:41:56', '2022-08-20 06:00:41');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2116, 'KFiuf8pd01qPgm8OglE9Cjz2V', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Writ petition under Article 226 of the Constitution against a private educational institution is not maintainable unless the act complained has direct nexus with the discharge of public duty. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>St. Mary’s Education Society and another Vs Rajendra Prasad Bhargava and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5789 of 2022 decided on 24 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Aniruddha Bose and Justice J.B. Pardiwala.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. In the present appeal, two pivotal issues fall for consideration of this Court:­</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(a) Whether a writ petition under Article 226 of the Constitution of India is maintainable against a private unaided minority institution?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(b) Whether a service dispute in the private realm involving a private educational institution and its employee can be adjudicated in a writ petition filed under Article 226 of the Constitution? In other words, even if a body performing public duty is amenable to writ jurisdiction, are all its decisions subject to judicial review or only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>FACTUAL MATRIX</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. The appellant No. 1­Society runs a private unaided educational institution. The appellant No. 2 is the disciplinary committee constituted by the appellant No. 1­Society for the purpose of its internal management. The respondent No. 1 herein (original writ applicant before the learned single Judge) was serving as an office employee of the appellant No. 1. It appears from the materials on record that a show cause noticecum­suspension order dated 08.09.2014 was issued by the appellant No. 1 herein to the respondent No.1 for the various alleged misconduct in service. The respondent No. 1 herein was thereafter issued a departmental chargesheet dated 08.12.2014 essentially on six grounds. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>27. The respondent No. 1 herein has laid much emphasis on the fact that at the time of his appointment in the school, the same was affiliated to the Madhya Pradesh State Board. It is his case that at the relevant point of time the school used to receive the grant­in­aid from the State Government of Madhya Pradesh. Later in point of time, the school came to be affiliated to the CBSE. The argument of the respondent No. 1 seems to be that as the school is affiliated to the Central Board i.e. the CBSE, it falls within the ambit of “State” under Article 12 of the Constitution. The school is affiliated to the CBSE for the purpose of imparting elementary education under the Right of Children to Free and Compulsory Education Act, 2009 (for short, “Act 2009”). As the appellant No. 1 is engaged in imparting of education, it could be said to be performing public functions. To put it in other words, the appellant No. 1 could be said to be performing public duty. Even if a body performing public duty is amenable to the writ jurisdiction, all its decisions are not subject to judicial review. Only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction. If the action challenged does not have the public element, a writ of mandamus cannot be issued as the action could be said to be essentially of a private character.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>28. We may at the outset state that the CBSE is only a society registered under the Societies Registration Act, 1860 and the school affiliated to it is not a creature of the statute and hence not a statutory body. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>49. In the case on hand, the facts are similar. Rule 26(1) of the Affiliation Byelaws, framed by the CBSE, provides that each school affiliated with the Board shall frame Service Rules. Subrule (2) of it provides that a service contract will be entered with each employee as per the provision in the Education Act of the State/U.T. or as given in the Appendix III, if not obligatory as per the State Education Act. These rules also provide procedures for appointments, probation, confirmation, recruitment, attendance representations, grant of leave, code of conduct, disciplinary procedure, penalties, etc. The model form of contract of service, to be executed by an employee, given in Appendix III, lays down that the service, under this agreement, will be liable to disciplinary action in accordance with the Rules and Regulations framed by the school from time to time. Only in case where the post is abolished or an employee intends to resign, Rule 31 of Affiliation Byelaws of the Board will apply. It may be noted that the above byelaws do not provide for any particular procedure for dismissal or removal of a teacher for being incorporated in the contract. Nor does the model form of contract given in the Appendix III lays down any particular procedure for that purpose. On the contrary, the disciplinary action is to be taken in accordance with the Rules and Regulations framed by the school from time to time.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>50. On a plain reading of these provisions, it becomes clear that the terms and conditions mentioned in the Affiliation Byelaws may be incorporated in the contract to be entered into between the school and the employee concerned. It does not say that the terms and conditions have any legal force, until and unless they are embodied in an agreement. To put it in other words, the terms and conditions of service mentioned in the Chapter VII of the Affiliation Byelaws have no force of law. They become terms and conditions of service only by virtue of their being incorporated in the contract. Without the contract they have no vitality and can confer no legal rights. The terms and conditions mentioned in the Affiliation Byelaws have no efficacy, unless they are incorporated in a contract. In the absence of any statutory provisions governing the services of the employees of the school, the service of the respondent no. 1 was purely contractual. A contract of personal service cannot be enforced specifically. Therefore, the respondent no. 1 cannot find a cause of action on any breach of the law, but only on the breach of the contract. That being so, the appellant’s remedy lies elsewhere and in no case the writ is maintainable.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>51. Thus, the aforesaid order passed by this Court makes it very clear that in a case of retirement and in case of termination, no public law element is involved. This Court has held that a writ under Article 226 of the Constitution against a private educational institution shall be maintainable only if a public law element is involved and if there is no public law element is involved, no writ lies. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>60. In Trigun Chand Thakur (supra), the appellant therein was appointed as a Sanskrit teacher and a show cause notice was issued upon him on the ground that he was absent on the eve of the Independence day and the Teachers day which resulted into a dismissal order passed by the Managing Committee of the private school. The challenge was made by filing a writ petition before the High Court which was dismissed on the ground that the writ petition is not maintainable against an order terminating the service by the Managing Committee of the private school. This Court held that even if the private school was receiving a financial aid from the Government, it does not make the said Managing Committee of the school a “State” within the meaning of Article 12 of the Constitution of India.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>61. Merely because a writ petition can be maintained against the private individuals discharging the public duties and/or public functions, the same should not be entertained if the enforcement is sought to be secured under the realm of a private law. It would not be safe to say that the moment the private institution is amenable to writ jurisdiction then every dispute concerning the said private institution is amenable to writ jurisdiction. It largely depends upon the nature of the dispute and the enforcement of the right by an individual against such institution. The right which purely originates from a private law cannot be enforced taking aid of the writ jurisdiction irrespective of the fact that such institution is discharging the public duties and/or public functions. The scope of the mandamus is basically limited to an enforcement of the public duty and, therefore, it is an ardent duty of the court to find out whether the nature of the duty comes within the peripheral of the public duty. There must be a public law element in any action.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>62. Our present judgment would remain incomplete if we fail to refer to the decision of this Court in the case of Ramakrishnan Mission v. Kago Kunya, (2019) 16 SCC 303. In the said case this Court considered all its earlier judgments on the issue. The writ petition was not found maintainable against the Mission merely for the reason that it was found running a hospital, thus discharging public functions/public duty. This Court considered the issue in reference to the element of public function which should be akin to the work performed by the State in its sovereign capacity. This Court took the view that every public function/public duty would not make a writ petition to be maintainable against an “authority” or a “person” referred under Article 226 of the Constitution of India unless the functions are such which are akin to the functions of the State or are sovereign in nature</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>65. We owe a duty to consider one relevant aspect of the matter. Although this aspect which we want to take notice of has not been highlighted by the respondent No.1, yet we must look into the same. We have referred to the CBSE Affiliation Byelaws in the earlier part of our judgment. Appendix­IV of the Affiliation Byelaws is with respect to the minority institutions. Clause 6 of Appendix­IV is with respect to the disciplinary control over the staff in a minority educational institution. We take notice of the fact that in Clause 6, the State has the regulatory power to safeguard the interests of their employees and their service conditions including the procedure for punishment to be imposed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>67. In the aforesaid context, we may only say that merely because the State Government has the regulatory power, the same, by itself, would not confer any such status upon the institution (school) nor put any such obligations upon it which may be enforced through issue of a Writ under Article 226 of the Constitution</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>68. We may sum up our final conclusions as under:­</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(a) An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(b) Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty. It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition under Article 226. Wherever Courts have intervened in their exercise of jurisdiction under Article 226, either the service conditions were regulated by the statutory provisions or the employer had the status of “State” within the expansive definition under Article 12 or it was found that the action complained of has public law element.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(c) It must be consequently held that while a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a Constitutional Court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions. An educational institution may perform myriad functions touching various facets of public life and in the societal sphere. While such of those functions as would fall within the domain of a \"public function\" or \"public duty\" be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, the actions or decisions taken solely within the confines of an ordinary contract of service, having no statutory force or backing, cannot be recognised as being amenable to challenge under Article 226 of the Constitution. In the absence of the service conditions being controlled or governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(d) Even if it be perceived that imparting education by private unaided the school is a public duty within the expanded expression of the term, an employee of a non­teaching staff engaged by the school for the purpose of its administration or internal management is only an agency created by it. It is immaterial whether “A” or “B” is employed by school to discharge that duty. In any case, the terms of employment of contract between a school and non­teaching staff cannot and should not be construed to be an inseparable part of the obligation to impart education. This is particularly in respect to the disciplinary proceedings that may be initiated against a particular employee. It is only where the removal of an employee of non­teaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered by the court. But such interference will be on the ground of breach of law and not on the basis of interference in discharge of public duty.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(e) From the pleadings in the original writ petition, it is apparent that no element of any public law is agitated or otherwise made out. In other words, the action challenged has no public element and writ of mandamus cannot be issued as the action was essentially of a private character. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>69. In view of the aforesaid discussion, we hold that the learned single Judge of the High Court was justified in taking the view that the original writ application filed by the respondent No. 1 herein under Article 226 of the Constitution is not maintainable. The Appeal Court could be said to have committed an error in taking a contrary view.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>70. In view of the aforesaid, this appeal succeeds and is hereby allowed. The impugned judgment and order passed by the Division Bench of the High Court in the Writ Appeal No. 485 of 2017 is set aside. The writ application accordingly stands rejected on the ground of its maintainability. It is needless to clarify that it shall be open to the respondent No. 1 herein to take up the issue with the CBSE itself or the State or may avail any other legal remedy available to him in accordance with law. We clarify that we have otherwise not expressed any opinion on the merits of the case.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>71. There shall be no order as to costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>72. Pending application, if any, also stands disposed of.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '49a3ffaadd50b274a45d9bc5d6a85b20.jpeg', '501f658f5dfb4174a8369367b928a699.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-29', 1, '', '', '2022-08-25 16:24:08', '2022-08-29 14:50:07'),
(2112, 'rjUWKppk5Jz9Crx4A9DRrYfhx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Even an earlier registered sale deed does not confer right over property declared subsequently as Wakf property as long as the declaration is not set aside. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shahirabi Ibrahinsab Vs Tanzeem Committee and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WP 60337-60341 of 2009 decided on 1 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ashok S. Kinagi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Brief facts leading to filing of this writ petition are as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner’s husband purchased property bearing CCB No.69 of Khasbag under a registered sale deed from Belgaum Muslim Co-operative Credit Bank Ltd., Belgaum on 21.05.1965. The husband of the petitioner died on 18.06.1971 leaving behind the petitioner as his legal representative. 1st respondent falsely claims that the property bearing CCB No.69 is registered as a Wakf property on 22.06.1984. It is the 1st respondent, filed the eviction petition against the respondent Nos.2 to 9 and the predecessors of the respondent Nos.10 to 12 in the year 1994. The eviction petition filed in the HRC No.137/1990 and the said petition came to be allowed by the Trial Court. The respondent Nos.2 to 12 challenged the said eviction order in HRCRP Nos.73/1994 to 77/1994 before the I Additional District Judge, Belgaum. The learned District Judge allowed the revision petition and set-aside the order passed by the Trial Court and consequently dismissed the eviction petition. In the said revision petition, the learned I Additional District Judge has recorded an adverse finding against the respondent Nos.2 to 12. The respondent Nos.2 to 12 aggrieved by the findings recorded in HRCRP Nos.73/1994 to 77/1994 preferred the revision petition before this Court in HRRP Nos.968/1999 to 971/1999. This Court allowed the petition vide order dated 21.06.2000. Thereafter the 1st respondent filed the suit for eviction for mense profits and arrears of rent against the respondent Nos.2 to 9 & 13 and predecessors of respondent Nos.10 to 12. The petitioner filed an impleading application in all the five matters before the Wakf Tribunal. The Wakf Tribunal allowed the impleading application. The petitioner filed the written statement. The tribunal after recording the evidence of the parties, decreed the suit filed by the respondent No.1. The petitioner aggrieved by the judgment and decree passed by the Wakf Tribunal, has filed this writ petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. The petitioner subsequently filed this suit for ejectment possession. It is the case of the petitioner that the petitioner’s husband had purchased a property under a registered sale deed in the year 1965. The suit scheduled property was notified as a Wakf property under the notification dated 22.06.1984. Neither the petitioner nor her husband has challenged the said notification declaring the suit scheduled property as a Wafk property. The Wakf Tribunal considering the contention of the petitioner has recorded the findings that the suit property is the Wakf property, she has not challenged the notification and also not sought for relief of declaration of title in the suit and further, as long as the suit property is the Wakf Property and as long as the registration certificate of the suit property is a Wakf property is not set-aside, the petitioner cannot seek any right whatsoever over the suit property on the basis of the execution of the registered sale deed in the year 1965. The Wakf Tribunal after considering the entire material on record was justified in passing the impugned judgment and decree.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Accordingly, the writ petitions are dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ef94bd8ecd54b59f69e25e0b39863305.JPG', '11db53973b4114f9a6194097f4345423.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-25', 1, '', '', '2022-08-24 19:44:27', '2022-08-25 10:13:37'),
(2097, '2zDS5WJ3sbVdv3zuKrPOjyEuz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'The test to be applied for judging the claim of infringement and passing off is of an unwary consumer with average intelligence and imperfect recollection.\'\' Delhi High Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Austin Nichols & Co INC and another Vs Gwalior Distilleries Private Ltd.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CS(OS) 250 of 2010 decided on 18 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Navin Chawla.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">1. The plaintiffs have filed the present suit praying inter-alia for a\r\ndecree of permanent injunction restraining the defendant, its directors,\r\nassigns in business, distributors, licensees and dealers from\r\nmanufacturing, selling, offering for sale, advertising, directly or\r\nindirectly dealing in whiskey or any other alcoholic beverages under the\r\nimpugned trade mark/logo/label SEAGRAM’S and/or ROYAL\r\nCHAMP or any other trade mark/logo/label as may be deceptively\r\nsimilar to the trade marks of the plaintiffs that is SEAGRAM’S or\r\nSEAGRAM’S logo or ROYAL STAG or its label amounting to\r\ninfringement of trade marks registrations of the plaintiffs, passing off,\r\nunfair competition, as also infringement of copyright of the plaintiffs.\r\nThe plaintiffs also pray for rendition of accounts of profits earned by the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">defendant or in the alternative, a decree of Rs. 20 Lakh (Rupees Twenty\r\nLakh only) and the costs of the suit.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. The plaintiff no. 2 was originally known as ‘Seagram India Pvt.\r\nLtd.’ before the change of name to the present one with effect from\r\n23.04.2007. (Exh. PW-1/4).\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. The plaintiffs assert that their predecessor in the business was ‘The\r\nSeagram Company Ltd.’, a company incorporated under the laws of\r\nCanada, and was the ultimate holding company of the Seagram Group\r\nthrough its various subsidiaries and group companies, having presence in\r\nmany countries of the world.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. It is asserted that ‘Pernod Ricard S.A.’ (the parent company of the\r\nplaintiffs) acquired a part of the Seagram Group in December 2001. The\r\nSeagram Company Ltd. assigned their various trade marks, service\r\nmarks, trade names and logos along with the goodwill of the business to\r\n‘Pernod Ricard S.A.’ Alcoholic beverages under various brands of\r\nPernod Ricard Group continue to use the trade mark ‘SEAGRAM’S’ and\r\n‘SEAGRAM’S CREST DESIGN’ (hereinafter referred to as ‘the\r\nSEAGRAM Marks’) along with the respective brands, such as\r\n‘Seagram’s Blenders Pride’, ‘Seagram’s Imperial Blue’ etc.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. The plaintiffs assert that the plaintiff nos. 1 and 3 and their\r\npredecessors have been carrying on the business of bottling and\r\nmarketing of alcoholic beverages in India through the plaintiff no. 2\r\nunder the name of ‘Seagram India Pvt. Ltd.’ since the year 1995 with the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">trade mark SEAGRAM being the key and distinguishing feature. Though\r\nthe name of plaintiff no. 2 changed in 2007, however, it continued to use\r\nthe SEAGRAM Marks.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. It is asserted that the plaintiff no. 3 is the proprietor of the\r\nSEAGRAM Marks and the plaintiff no. 2 is the licensed user of the\r\nSEAGRAM Marks under the name of ‘Seagram India Pvt. Ltd.’ since\r\nthe year 1995. The SEAGRAM Marks have been used by the plaintiffs\r\ninternationally since 1940 and in India since 1995.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. It is the case of the plaintiffs that the SEAGRAM Marks have\r\nacquired worldwide goodwill and reputation, including in India, on\r\naccount of sale and marketing of varieties of alcoholic beverages in\r\nseveral countries worldwide as also in India.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. It is asserted that one of the whiskies manufactured and marketed\r\nby the plaintiff no. 2 since the year 1995 is under the trade mark ROYAL\r\nSTAG. The trade mark ROYAL STAG is a coined trade mark, having\r\nno significance or meaning in common parlance, and no correlation to the\r\ncharacter or quality of whiskey marketed there under.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. I have considered the submissions made by the learned counsel for\r\nthe plaintiffs.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Issue No. (i) </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. The plaintiffs have asserted that the plaintiff no. 1 started selling\r\nthe whiskey under the trade mark ROYAL STAG since the year 1995.\r\nThe plaintiffs have filed Certificates for Use in Legal Proceedings for the\r\ntrade mark registrations granted in favour of the plaintiff no. 1, including\r\nunder Class 33, and thereafter assigned to the plaintiff no. 2. They state\r\nthat the said registrations remain valid and subsisting. As no evidence to\r\nthe contrary has been produced by the defendant, the Issue No. (i) is\r\ndecided in favour of the plaintiffs and against the defendants. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Issue No. (ii)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34. The plaintiffs have proved on record that the name of the plaintiff\r\nno. 2, prior to the change thereof on 23.04.2007, was ‘Seagram India Pvt.\r\nLtd.’. The plaintiffs have also filed on record the Certificates for Use in\r\nLegal Proceedings for trade mark registrations obtained by the plaintiff\r\nno. 2 in trade mark SEAGRAM under Class 33. As no evidence to the\r\ncontrary has been produced by the defendant, the Issue No. (ii) is decided\r\nin favour of the plaintiffs and against the defendants. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Issue No. <span style=\"font-size: 12pt;\">(iii)</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>35. The plaintiffs have claimed that the plaintiff no. 1 is the owner of\r\nthe copyright in the ROYAL STAG label. This assertion remains\r\nunrebutted in evidence. Issue No. (iii) is therefore, decided in favour of\r\nthe plaintiffs and against the defendant. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Issue Nos. (iv) to (vii)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36. From the above narration of facts, it is proved that the plaintiffs are\r\nthe registered proprietors of the mark ROYAL STAG and the\r\nSEAGRAM Marks, including in Class 33. The defendant is using the\r\nmark ROYAL CHAMP along with the logo that is deceptively similar to\r\nthe SEAGRAM Marks of the plaintiffs. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">38. In the present case, the goods of the plaintiffs and defendant are\r\nidentical, that is whiskey. The mark of the defendant is deceptively\r\nsimilar to that of the plaintiffs. The test to be applied for judging the\r\nclaim of infringement and passing off is of an unwary consumer with\r\naverage intelligence and imperfect recollection.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>39. Applying the above test, it is seen that mere use of the word\r\n‘CHAMP’ instead of ‘STAG’ is not sufficient to distinguish the two\r\nmarks, especially when combined with the overall get up of the label.\r\nThe goods are sold over the counter and an unwary consumer is likely to\r\nconfuse one for the other.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>40. The plaintiffs have also been able to establish a long, continuous\r\nuse of its trade marks. As held herein above, the mark of the defendant is\r\ndeceptively similar to that of the plaintiffs. In fact, it is clearly intended to\r\ndeceive the unwary consumer. The defendant is, therefore, guilty of\r\npassing off its goods as that of the plaintiffs. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>41. The use of the offending marks by the defendant shall also cause\r\ndilution of the marks of the plaintiffs. This Court, in Tata Sons Ltd. v.\r\nManoj Dodia & Ors., CS(OS) 264 of 2008, held that a well-known trade\r\nmark is a mark which is widely known to the relevant general public and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">enjoys a comparatively high reputation amongst them. It further held that\r\nwhen a person uses another person’s ‘well-known trade mark’, he tries to\r\ntake advantage of the goodwill that such a ‘well-known trade mark’\r\nenjoys. Such an act constitutes as unfair competition. It also causes\r\ndilution of a ‘well-known trade mark’ as it loses its ability to be unique\r\nand distinctively identified and distinguish as one source and consequent\r\nchange in perception which reduces the market value or selling power of\r\nthe product bearing the well-known trade mark.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>42. The label of the defendant is a colourable and slavish imitation of\r\nthe plaintiffs’ ROYAL STAG label and also amounts to copyright\r\ninfringement under Section 51 read with Section 55 of the Copyright Act.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>43. The issue nos. (iv) to (vii) are accordingly decided in favour of the\r\nplaintiffs and against the defendant. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Issue Nos. (viii) to (x) and (xii)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>44. The onus of proving these issues was on the defendant. As noted\r\nherein above, the defendant has not led any evidence in the suit. The\r\nabove issues are therefore, decided against the defendant. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Issue No. (xi)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>45. In the present case, the adoption by the defendant of the trade\r\nmarks ROYAL CHAMP and the deceptively-similar logo to the\r\nSEAGRAM logo of the plaintiffs was clearly intended to deceive the\r\nunwary consumer and to ride on the reputation and goodwill of the\r\nplaintiffs. As held herein above, the same was intended to cause dilution\r\nof the marks of the plaintiffs.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>46. At one point of time, the defendant had agreed to give up use of\r\nthe impugned label and trade mark in offer of settlement of disputes. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">However, the settlement could not materialise and the suit continued. The\r\ndefendant thereafter stopped appearing, however, the plaintiffs have\r\nspent further amount of money towards litigation costs, including court\r\nfee, counsels’ fees and miscellaneous expenses.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">47. Therefore, considering the observations of the Supreme Court on\r\nthe issue of costs to be awarded in commercial matters in Uflex Ltd. v.\r\nGovernment of Tamil Nadu & Ors. [Civil Appeal Nos.4862- 4863 of\r\n2021, decided on 17th September, 2021] and of this Court in Intel\r\nCorporation v. Dinakaran Nair & Ors., 2006 SCC OnLine Del 459, as\r\nalso, in terms of the Commercial Courts Act, 2015 and the Delhi High\r\nCourt (Original Side) Rules, 2018 read with Delhi High Court Intellectual\r\nProperty Division Rules, 2022, the plaintiffs are held entitled to damages\r\nand costs quantified at Rs. 20 Lakh.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Issue No. (xiii)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>48. In view of the above, the suit is decreed in terms of prayers 39(i) to\r\n(iv) of the plaint. The defendant shall also pay to the plaintiff a sum of\r\nRs. 20 Lakh as damages and costs of the suit.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>49. The decree-sheet be drawn up accordingly. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ade0f8f574d2dda06d876350cd93c6e0.jpg', '804afa8a4afef6942ed72d104877cb5a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-23', 1, '', '', '2022-08-22 18:14:03', '2022-08-23 10:14:02');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2098, 'ItaRwx2J6dWKm95WWZygws6qz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Companies Act. Proceedings under Section 630, penalty for wrongful withholding of property, cannot be resorted to when there is bonafide dispute regarding the right of the company over the property in question. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>D.K. Modi Vs Modi Rubber Limited<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Miscellaneous Case 4153 of 2012 decided on 18 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Purushaindra Kumar Kaurav.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This petition under Section 482 of Code of Criminal Procedure,\r\n1973 (Cr.P.C.) seeks quashment of the order dated 19.10.2012 passed by\r\nthe learned ACMM in complaint case No. 215/01/2011 and quashment of\r\nthe complaint case itself for the alleged offence committed under Section\r\n630 of the Companies Act, 1956 (hereinafter referred as ‘Companies\r\nAct’) pending before the Court of Additional Chief Metropolitan\r\nMagistrate, Tis Hazari Courts, Delhi.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The respondent/complainant M/s Modi Rubber Limited\r\n(hereinafter referred as ‘complainant’) filed a complaint on 02.08.2011\r\nagainst Shri D.K. Modi (hereinafter referred as ‘petitioner’) for\r\ncommission of an offence under Section 630 of the Companies Act and\r\nfor prosecution/punishment of the petitioner for wrongfully withholding\r\nthe companies’ property. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. The brief facts of the case are that on 27.02.1971, the complainant\r\nwas incorporated as a Public Limited Company and was registered in the\r\nrecords of Registrar of Companies, Kanpur. The father of the petitioner,\r\nnamely, Shri K.N. Modi, was the Chairperson and one of the Managing\r\nDirectors of the complainant company, with approximately 14,000 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">shareholders. On 04.02.1984 an Agreement to Sell for the purchase of\r\nproperty, bearing No. 15, Friends Colony (West), New Delhi–110065\r\nadmeasuring 2800 square yards, with an old structure built thereon\r\n(property in dispute) was entered into between the complainant and one\r\nArun Kumar Kapur. As per the sale agreement dated 04.02.1984, a sale\r\nconsideration of Rs.55,00,000/- was agreed. The property in dispute\r\ncontinued to be in possession of Shri K.N. Modi, the father of the\r\npetitioner. On 24.01.1989, due to differences amongst the family\r\nmembers of the Modi family, a Memorandum of Understanding (MoU)\r\nwas executed between them, where two groups were created. Group ‘A’\r\ncomprised of K.N. Modi and sons, i.e., the petitioner and his father and\r\nGroup ‘B’ comprised of K.K. Modi and brothers, which includes the\r\ncomplainant company. As per one of the terms and conditions of the\r\nMoU, Shri K.N. Modi (father of the petitioner) resigned from the\r\ncomplainant company as Chairperson. According to Clause-4 of the\r\nMoU, it was stated that the houses occupied by each Modi will continue\r\nwith them. The terms and conditions of the concerned MoU have been\r\nupheld by the Hon’ble Supreme Court in the case of K.K. Modi v. K.N.\r\nModi </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. The Hon’ble Supreme Court in the matter of Pepsi Foods Ltd.\r\n(supra) while considering the scope of the High Court’s power to quash\r\ncriminal proceedings in exercise of power under Articles 226/227 of the\r\nConstitution of India or of Section 482 of Cr.P.C., has held that\r\nsummoning of an accused in a criminal case is a serious matter. Criminal\r\nlaw cannot be set into motion as a matter of course. It is not that the\r\ncomplainant has to bring only two witnesses to support his allegations in\r\nthe complaint to have the criminal law set into motion. The order of the\r\nMagistrate summoning the accused must reflect that he has applied his\r\nmind to the facts of the case and the law applicable thereto. He has to\r\nexamine the nature of allegations made in the complaint and the\r\nevidence, both oral and documentary, in support thereof and consider if <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that be sufficient for the complainant to succeed in bringing home the\r\ncharge against the accused. The Magistrate is not a silent spectator. The\r\nMagistrate may even himself put questions to the complainant and his\r\nwitnesses to elicit answers to find out the truthfulness of the allegations\r\nor otherwise and then examine if any offence is prima facie committed\r\nby all or any of the accused. It has also been held that the accused can\r\napproach the High Court under Section 482 of the Code or Article 227 of\r\nthe Constitution to have the proceeding quashed against him when the\r\ncomplaint does not make out any case against him. It is also a settled\r\nlaw that if the High Court finds that invoking a criminal jurisdiction is an\r\nabuse of the process of law, the High Court should not hesitate to\r\nexercise its power under Section 482 of Cr.P.C. or 226 of the\r\nConstitution of India.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. It is thus seen that Section 630 of the Companies Act can be\r\ninvoked when there is no dispute or in any event, no bonafide dispute\r\nwith respect to the property in question exists. If there is any dispute\r\ninvolving title to the property, the same would be adjudicated by the\r\nconcerned civil court and not by Magistrate under Section 630 of the\r\nCompanies Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. In the matter of Gopika Chandrabhushan Saran and Anr.\r\n(supra), the Hon’ble Supreme Court was considering the scope and\r\nambit of the provisions of Section 630 of the Companies Act, as to\r\nwhether the proceedings under the said provision would cover within its\r\npurview only the employee of the company or also the persons claiming\r\na right through him or under him. The respondent in that case instituted a\r\nproceeding under Section 630 of the Companies Act against the appellant\r\ntherein. The Additional Chief Metropolitan Magistrate found the\r\nappellant guilty under Section 630 of the Act and sentenced him for\r\nRs.500/- with a default stipulation of simple imprisonment for 15 days.\r\nThe appellant therein was also directed to vacate the suit premises within\r\nfour months from the date of the said order. The appellant filed an appeal\r\nbefore the Court of Sessions which was dismissed. The matter was taken\r\nup in revision before the High Court of Bombay. The High Court\r\ndismissed the revision upholding the order of the courts below. The\r\nHon’ble Supreme Court while placing reliance on an earlier decision in\r\nthe case of Abhilash Vinod Kumar Jain v. Cox & Kings (India) Ltd.\r\nOrs, Lalita Jalan and Anr. v. Bombay Gas Co. Ltd. And Ors , held\r\nthat a company is within its jurisdiction to get suit premises vacated even\r\nfrom the legal heirs of its employees. Both the parties placed reliance on\r\na decision of the Hon’ble Supreme Court in the case of Atul Mathur <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(Supra), Rajiv Thapar & Ors vs Madan Lal Kapoor and Hooghly\r\nMills Company Limited (supra). While referring to different paragraphs\r\nof the said decisions, the learned Senior Counsel appearing on behalf of\r\nthe petitioner submitted that this court in the exercise of its inherent\r\npower should interfere in the impugned order of summoning and on the\r\nother hand, the learned Senior Counsel appearing for the complainant\r\nsubmitted that at this stage, it is premature to examine the sufficiency of\r\nmaterial available before the Court concerned for passing the summoning\r\norder.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. The Hon’ble Supreme Court in Damodar Dass Jain (Supra)\r\nconsidered the aforesaid aspect and while affirming the judgment of\r\nBombay High Court has held that even a question of implied licence in\r\nfavour of the company is also a question, which requires to be\r\nconsidered by the civil court and cannot be determined by a Magistrate\r\nin proceedings under Section 630 of the Companies Act. It is true that\r\nevery dispute would not become a bonafide dispute because the\r\ncompany’s claim is refuted by employees or ex-employees of the\r\ncompany. As to when a dispute would amount to the bonafide dispute,\r\nwould depend upon the facts of each case as has been held in Atul\r\nMathur v. Atul Kalra and Anr</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. In view of the aforesaid legal position, if the facts of the present\r\ncase are analyzed, the same would demonstrate that on 24.01.1989, a\r\nMoU was executed between Group ‘A’ & Group ‘B’ consisting of\r\nfamily members of Modi family. As can be seen from the MoU, Modi\r\nRubber Limited came into the share of Group ‘B’. In terms of Clause-4\r\nof the MoU, it is stated that the houses occupied by each Modi will\r\ncontinue with them. It is also stated in Clause-6 that Shri K.N. Modi\r\n(father of the petitioner) and his sons would resign from\r\nChairman/Managing Director/Directorship of various companies\r\nincluding Modi Rubber Limited. It is in pursuance of Clause 4, the father\r\nof the petitioner resigned from Modi Rubber Limited. Clause-9 of the\r\nMoU specifically mentioned that implementation of the terms of the\r\nMoU would be done in consultation with the financial institutions. For\r\nall disputes, classification etc., the dispute would be referred to the\r\nChairman, IFCI or his nominee whose decision would be final and\r\nbinding on both the groups. The Hon’ble Supreme Court in K.K. Modi\r\n(Supra) has clearly held in para-No. 52 that the MoU is a complete <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">settlement, providing how assets are to be valued; how they are to be\r\ndivided, and how a scheme for dividing some of the specified companies\r\nhas to be prepared and who has to do this work. It has also been noted\r\nthat in order to obviate any dispute, the parties had agreed that the entire\r\nworking out of the agreement would be subject to such directions as the\r\nChairman, IFCI may give pertaining to the implementation of the MoU.\r\nSuch authority has also been empowered to give clarifications and\r\ndecide any differences relating to the implementation of the MoU. It has\r\nbeen held that such a family settlement, which settled disputes within the\r\nfamily, should not be lightly interfered with, especially when the\r\nsettlement has been already acted upon by some members of the family.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. This court is not oblivious of the fact that in various cases,\r\ncriminal law is set into motion to settle the civil dispute. In the instant\r\ncase, the MoU clearly stipulates which company would go to which\r\ngroup. The company itself, in the present case, falls into the share of the\r\nrival group of the present petitioner. The MoU was entered on\r\n24.01.1989. Much before the MoU, the Agreement to Sell the property in\r\ndispute was entered into on 04.02.1984. There have been various cases\r\nbetween the parties on account of their differences. On 04.02.1998, the\r\nHon’ble Supreme Court in the case of K.K. Modi (supra) held that the\r\nMoU has a binding effect. The complaint in question came to be filed\r\nonly on 02.08.2001, i.e., almost after 22 years from the execution of the\r\nMoU. Before the filing of the complaint, even according to the\r\ncomplainant itself, there are various cases filed by them, particularly with\r\nrespect to the property in dispute. In a nutshell, the present dispute relates  <span style=\"font-size: 12pt;\">to a property, in respect of which, there are bonafide disputes between\r\nthe parties.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">26. On the basis of the aforesaid facts and circumstances of the case,\r\nthis court finds that the learned Magistrate has committed a palpable\r\nerror while summoning the petitioner for offence punishable under\r\nSection 630 of the Companies Act. A perusal of the impugned order\r\ndated 19.10.2012 does not reflect any application of mind with respect to\r\nthe facts as stated in paragraph 19 of the complaint regarding the\r\npendency of the civil suit between the parties. The impugned order\r\nsimply refers to the fact that the complainant examined himself as (CW1), who reiterated that Shri K.N. Modi was the Chairman and one of the\r\nManaging Directors of the company and who was allowed to occupy the\r\nproperty in question. Since Shri Modi ceased to be the CMD of the office\r\nw.e.f. 24.01.1989, by tendering the resignation letter on that date,\r\ntherefore, the learned ACMM was of the view that with effect from the\r\ndate of resignation, the occupation of the property in dispute has become\r\nunauthorized. There is no application of mind as to what would be the\r\neffect of the MoU and the pendency of the civil suit between the parties\r\nas mentioned in paragraph Nos. 19 & 20 of the complaint. The\r\nproceedings under Section 630 of the Companies Act are summary in\r\nnature and as has been held by the Hon’ble Supreme Court, the same\r\ncannot be resorted to, to bypass the other civil remedies. It is true that the\r\ncriminal process, at a pre-trial stage, normally should not be scuttled.\r\nThe same has a grave and irreparable consequence. Normally based on a\r\nprima-facie impression, an element of criminality cannot entirely be\r\nruled out. However, if under the facts of a given case, the High Court\r\nfinds that the criminal proceedings are absolutely an abuse of the process </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of law, the High Court must exercise its power under Section 482 of\r\nCr.P.C. As it can be seen from the facts that the fate of the property in\r\ndispute is not yet determined, the rival parties are claiming rights over\r\nthe property in dispute on the basis of the MoU. Till date, neither the\r\npetitioner nor the respondent/complainant has the clear title or ownership\r\nover the subject property. There is no sale deed in their favour. The suit\r\nfor specific performance of contract filed by them against original\r\nvendee is still pending. This court is, therefore, of the considered opinion\r\nthat the order of summoning of the petitioner, at this stage, is illegal and\r\nthe same deserves to be quashed.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>27. Accordingly, the complaint case No.215/01/2011; order of\r\nsummoning dated 19.10.2012 and all proceedings emanating therefrom\r\nare hereby quashed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>28. In view of the above, the petition is accordingly allowed and\r\ndisposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1e0cd3efe4dcdff26403454960aff988.png', '392b8228c05fdfcd28d6aa346227056d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-23', 1, '', '', '2022-08-22 18:43:05', '2022-08-23 06:26:05'),
(2099, 'szjAwK3zozzdZxy49eUSZX0Sw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Post-acquisition allottee has no locus standi to challenge de-notification of lands under acquisition relying on the doctrine of promissory estoppel. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>August Ventures P Ltd Vs Karnataka Udyoga Mitra and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 19622 of 2011 decided on 1 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.R. Krishna Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2.1 The petitioner is a Company incorporated under the Companies Act,1956, intending to put up a \"Software Development and ITES Park\" as a Single Unit Complex in the total extent of 16 acres 8 guntas at Survey Nos.117, 118, 138, 139, 140, 141 and 142 of Bellandur Ammanikane Village, Varthur Hobli, Bangalore East Taluk, Bangalore, for which, the petitioner had submitted an application on 15.10.2003 along with a processing fee of Rs.25,000 to the respondent No.1 for allotment of said land to put up the aforementioned Project.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.2 Upon submission of the application by the petitioner, the respondent No.1 vide letter dated 30.10.2003 informed the petitioner about the approval granted by the State Level Single Window Clearance Committee (SLSWCC) in its 234th Meeting held on 20.10.2003 and resolved to recommend the KIADB for acquiring the total extent of 16 acres 8 guntas of land and allot the same to the petitioner for implementation of the project. Pursuant to approval of the Project of the petitioner by the State Committee, the petitioner had submitted an application to the respondent No.2 on 07.11.2003 for allotment of the said land. Since there was no response from the 2nd respondent, the petitioner wrote a letter on 10.07.2004 to the 1st respondent and similarly to the respondent Nos. 2 and 4.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 2.3 Petitioner vide its letter dated 19.07.2005 informed the respondent Nos.2 and 4 about the Bangalore Development Authority(BDA) being the local Planning Authority under the Karnataka Town and Country Planning Act, 1961 had issued a Preliminary Notification during June 2005 calling for objections to the Notification of Revised Master Plan 2015. The petitioner vide letter dated 05.09.2005 addressed to the 1st respondent sought for immediate acquisition of land and hand over to the petitioner and also has asked for renewal of the project approval up to the period till the petitioner gets land and all other infrastructural assistance as approved by the State Level Single Window Agency. By way of reply, the 1st respondent vide letter dated 29.10.2005 informed that the State Committee has approved for extension of time by a period of one year.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 2.4 The Government of Karnataka through its notification dated 10.12.2001 bearing reference No.CI 255 SPQ 2001 issued under Section 3(1) of the Karnataka Industrial Areas Development Act (KIADB Act), declared the said land including the schedule property as ‘Industrial Area’ and in view of the Section 47 of the KIADB Act, the same shall supersede the Karnataka Town and Country Planning Act, 1961. Subsequently, the 3rd respondent as per its Preliminary Notification under Section 28(1) of the KIADB Act issued a Notification dated 09.02.2004 for acquisition of the schedule property. Upon hearing the objections from the landowners, the 3rd respondent issued a Final Notification dated 19.12.2005 under Section 28(4) of the KIADB Act for acquisition of the schedule property. Pursuant to the Final Notification, the petition schedule property has vested with the State Government free from all encumbrances as per the provisions of Section 28(5) of the KIADB Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.5 The petitioner vide its letter dated 24.02.2006 addressed to the 2nd respondent has brought to the notice of the KIADB officials that there is an issue of shortage of lands notified by the KIADB leaving the extent of 4 acres 15 guntas out of the approved land of16 acres 8 guntas for the project. Further, on 15.03.2006, petitioner addressed a letter to the 1st respondent to pursue the matter with KIADB on leaving out few lands which are essential for the implementation of the project. Further, the petitioner vide its letter dated 26.12.2006 addressed to the 2nd respondent requesting them to allot the approved land and issue a allotment letter for implementation of the Project and also reminded that the allotment letters have been issued to similarly situated projects in the vicinity. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.6 The respondent No.1 vide its letters dated 26.03.2007 and 04.04.2007 requested the petitioner to inform the status of the implementation of approved project. By way of reply, the petitioner vide letters dated 03.04.2007 and 02.05.2007 provided the status of the project and requested the aforesaid respondents to hand over the approved land expeditiously to the petitioner. The petitioner vide letters dated 14.11.2007 and 10.03.2008 addressed to respondent Nos.2 and 3 and requested them to allot the approved land and issue the allotment letter, so that the petitioner can start the project at the earliest and also requested to fix the boundaries of the land allotted. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.7 The petitioner once again vide its letter dated 26.04.2008 requested the 2nd respondent to allot the land already notified by the KIADB and available for allotment in lieu of the shortage of land allotted out of the approved land. The petitioner also vide letter dated 23.05.2008 addressed to the 3rd respondent informed that the 2nd respondent has directed the surveyor to survey and fix the boundary for only 12 acres 7 guntas of land, which is available for the petitioner. In this regard, the petitioner requested the 2nd respondent to approve the same and issue an allotment letter at the earliest. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.8 The 2nd respondent by way of letter dated 18.02.2010 directed the petitioner to pay a sum of Rs.1,05,00,000/- towards 40% cost of land at the tentative rate of Rs.150/-lakhs per acre in respect of 1 acre 30 guntas of the subject land in Survey Nos.138/5, 138/6, 139/2,139/3 and 139/4 of Bellandur Ammanikane Village, Varthur Hobli, Bangalore East Taluk, Bangalore. The petitioner vide letter dated 17.03.2010 has informed about the payment of aforesaid amount to the 2nd respondent. Thereafter, the 2nd respondent issued the allotment letter in favour of the petitioner to an extent of 1 acre 30 guntas by way of their letter dated 03.04.2010. However, the subject lands have not been included in the said allotment letter. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.9 The respondents 5 to 54 have filed W.P.No.3514/2008 before this Court challenging the acquisition proceedings in respect of the notified lands including the subject lands, but the petitioner was not a party to the said proceedings. In the said petition, the Chief Secretary filed a detailed Affidavit on 18.09.2010 supporting the acquisition proceedings. It is contended that despite the said Affidavit, the KIADB passed a Board Resolution on 27.09.2010 not to proceed with the acquisition which is contrary to the said Affidavit. It is contended that the petitioner was deliberately not impleaded as a party to the said petition and the impugned de-notification which is contrary to the Affidavit is illegal and arbitrary on this ground also and that therefore, the petitioner sought for impleadment in the said petition. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.19. It is contended that the petitioner has not approached this Court with clean hands and has made factually incorrect averments and that the petition is liable to be dismissed. The State Committee has no legal sanctity and statutory force and cannot make any recommendation in matter of land acquisition. Even assuming there is power to make recommendation, there cannot be acquisition for the land, which are earmarked as valley and residential zone. All statutory powers especially the power to compulsorily acquire the property of a citizen vests in public domain and any violation of the statutory provisions resulting in rights of citizen to hold property is defeated is not only illegal but also breach of trust and abuse of the statutory powers vested with the State.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. The material on record discloses that several contentions have been urged by both sides in support of their respective claims. One such specific contention urged on behalf of the respondents is with regard to lack / want of locus standi on the part of the petitioner to file, maintain and prosecute the present petition. In this context, it is contended by the petitioner that by virtue of the provisions of the Facilitation Act, 2002, under which, the project of the petitioner which included the subject land was approved, created a vested right in favour of the petitioner. It is also contended that apart from the subject land, another extent of land measuring 8 acres 4 guntas has been allotted to the petitioner who has invested more than Rs.13.5 crores for the project and has sufficient means to invest the total cost of the project, which was about Rs.40 crores. It is also contended that the petitioner is the ultimate beneficiary of the acquisition in respect of the subject lands and its rights are protected by the principles of legitimate expectation and promissory estoppel and consequently, it cannot be said that the petitioner did not have locus standi or that the petition was not maintainable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. Per contra, it is contended by the respondents that the petitioner is merely a prospective/proposed allottee of the subject lands, over which he had / has acquired no right whatsoever, particularly when the notification under Section 3(1) of the KIAD Act declaring the subject lands and other lands as an industrial area was issued on 10.12.2001, much prior to the petitioner submitting his project proposal to the respondent No.1-Karnataka Udyog Mitra in the year 2003. So also, there is no reference to the petitioner in the notifications issued under Section 3(1), Section 28(1) or Section 28(4) of the KIAD Act and the total extent of lands notified was about 97 acres, out of which, the subject lands measure only about 3 Acres 13 Guntas and as such, petitioner cannot claim to be the beneficiary of the subject acquisition.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. It is contended that no portion or part of the subject land had been allotted in favour of the petitioner prior to issuance of the impugned notification dated 02.11.2010, under which, the subject lands have been de-notified / withdrawn from acquisition. It is also contended that the petitioner is not the beneficiary or allottee of the subject lands and it is the KIADB which is the beneficiary and consequently, petitioner does not have locus standi to maintain the present petition. It is contended that no vested right had accrued in favour of the petitioner prior to issuance of the impugned notification and consequently, since the petitioner had not acquired any manner of right, title, interest or possession over the subject lands, which were de-notified / withdrawn from acquisition by virtue of the impugned notification, the petitioner does not have locus standi to file, maintain or prosecute the present petition which is not maintainable and liable to be dismissed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. As stated supra, though several contentions have been urged by both sides, having regard to the fact that the issue/question of locus standi of the petitioner touches the very maintainability of the present petition and goes to the root of the matter, I deem it just and appropriate to examine and deal with the said issue before proceeding further.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. As can be seen from the aforesaid judgment, the Apex Court has held that a post-acquisition allottee does not have any locus standi to be heard in the matter of determination of compensation towards acquisition by the KIADB under the KIAD Act<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15. As stated supra, the aforesaid judgments clearly indicate that a post-acquisition allottee does not have any locus standi to be heard in the matter of determination of compensation towards acquisition by the KIADB under the KIAD Act. In this context, it is relevant to state that the petitioner seeks to distinguish the aforesaid decisions by contending that the same were rendered in the context of the locus standi of a post acquisition allottee with reference to proceedings relating to compensation, whereas the petitioner has filed the present petition assailing the impugned notification under which, the subject lands have been de-notified and withdrawn from acquisition and that the rights of the petitioner are protected by the principles of legitimate expectation and promissory estoppel and as such, the aforesaid judgments are not applicable to the facts of the instant case. Even these contentions of the petitioner cannot be accepted in the light of the recent judgment of the Hon’ble Division Bench of this Court in the case of Ms.Nooraine Fazal vs. Base Corporation Limited & others – W.A.No.15210/2011 & connected matter Dated 22.04.2022, wherein this Court has held that a post acquisition allottee has no locus standi to challenge de-notification and that the protection under the doctrine of promissory estoppel and legitimate expectation is not available to a post acquisition allottee. <br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. It is also significant to note that no portion or part of the subject land had been allotted in favour of the petitioner prior to issuance of the impugned notification dated 02.11.2010 under which, the subject lands have been de-notified / withdrawn from acquisition; further, the petitioner is not the beneficiary or allottee of the subject lands and it is the KIADB which is the beneficiary and consequently, petitioner does not have locus standi to maintain the present petition; so also, no vested right had / has accrued in favour of the petitioner prior to issuance of the impugned notification and consequently, since the petitioner had not acquired any manner of right, title, interest or possession over the subject lands, which were de-notified / withdrawn from acquisition by virtue of the impugned notification, the petitioner does not have locus standi to file, maintain or prosecute the present petition which is not maintainable and liable to be dismissed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. The aforesaid facts and circumstances clearly indicate that the petitioner is merely / simply a prospective / proposed post acquisition allottee simpliciter, who is not a beneficiary of the subject acquisition and consequently, does not have locus standi to prefer, maintain or prosecute the present petition which is not maintainable in law or on facts and the same is liable to be dismissed. Under these circumstances, though several contentions have been urged by both sides in support of their respective claims, in view of my finding above that the petitioner does not have locus standi to prefer, maintain and prosecute the present petition, I am of the view that the other contentions are not required to be gone into for the purpose of disposal of the present petition. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21. Accordingly, I do not find any merit in the petition and the same is hereby dismissed. </b><br></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '48cc8122ba9b8e2a94bf550ea8371113.JPG', '3ad8d873d0829e15070e18b213e542c4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-23', 1, '', '', '2022-08-22 19:03:10', '2022-08-23 08:23:54'),
(2101, 'lUmzMP6rHGFukATdyMH33l106', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When grievance is against Company for dishonest misappropriation of property, it is necessary to make the Company accused in the criminal proceedings under Section 403 IPC. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Puttaraju P. Gowda and others Vs The Station Officer Vijayanagar and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 8954 of 2016 decided on 1 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The respondent No.2 had filed a complaint on 24.05.2016 with the respondent No.1-Vijayanagar Police Station, Mysore alleging that there was an agreement entered into between the petitioner and respondent No.2 stating that respondent No.2 separated from business of Varsha Cables Private Limited which was to be run by the petitioners in pursuance of which a Deed of Agreement dated 09.10.2009 came to be executed between the petitioner and respondent No.2.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 3. In terms thereof, there was an agreement arrived at between parties that</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.1.<span style=\"white-space: pre;\">	</span>the amount required to be refunded by the Assistant Commissioner of Central Excise on account of certain contingent liability would be handed over to respondent No.2. It is alleged that though the said amount has to be refunded, the said amount was not paid to respondent No.2. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.2. it had been agreed that club facility enjoyed by both the parties would continue to be enjoyed till the expiry of the membership term which has been violated. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.3. Allegations are made as regards running of the Company-Varsha Cables Private Limited being done in a manner which is detrimental to the interest of respondent No.2. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.4. Certain licences were required to be transferred to respondent No.2 have not been transferred and as such, a complaint was filed for initiation of action against the petitioners for the offences under Sections 403, 408, 420, 468 and 471 of IPC.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. The offences of which have been alleged against the petitioners are that under Sections 403, 406 read with 120B and 34 of IPC. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. Section 403 of IPC speaks of dishonest misappropriation of property. In the present case, the alleged misappropriation of property is contended to be that of non-payment of the contingent amount refunded by the Excise Department. A perusal of the agreement indicates that the amount would be refunded to the Company and it is for the Company to refund the amount. If at all the respondent No.2 has any grievance, it was required of respondent No.2 to have made the Company a party to the criminal proceedings or to file a suit for recovery of money. The said Company not having been made a party, the question of making a petitioners responsible for the alleged offence committed by the Company would not at all arise. Admittedly, the amount is with the Company and there is no misappropriation per se committed by the petitioners. In view of the decisions of the Hon’ble Apex Court in SHARAD KUMAR SANGHI and SUSHIL SETHI supra, the relevant paragraphs of which have been extracted hereinabove, it is clear that the Company would be required to be made a party, if the offence is stated to have been committed by the Company. As such, the proceedings under Section 403 of IPC could not have be initiated only against the petitioners. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. The offence under Section 406 of IPC would be attracted in the event of there being a criminal breach of trust. The breach of trust in the present matter is connected to or adverted to prevention of usage of the club facility and/or transfer of licence. The breach of trust insofar as the club facility is concerned would require entrustment which in this case is not there inasmuch as the club membership is not entrusted for there to be an offence of breach of trust.  As such, this offence is also not made out.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. Insofar as the transfer of licence, the same is to be made by the Company and not by the petitioners. Though the petitioners may be the Directors of the Company, it was required of the complainant-respondent No.2 to have arrayed the Company as a party to the criminal complaint. Not having done so would come in the mischief as enumerated by the Hon’ble Apex Court in SHARAD KUMAR SANGHI and SUSHIL SETHI supra. As such, this offence is also not made out. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. Such being the situation, I am of the considered opinion that the continuation of the proceedings insofar as petitioners is concerned would not serve any purpose when the ingredients of offence have not been made out as also when the concerned Company has not been arrayed as an accused. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The Criminal Petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'bbe310d82b4b30b34cf6a7b768e8659b.JPG', 'e96c622430b0693b57ef71f8eddd3467.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-23', 1, '', '', '2022-08-22 20:29:11', '2022-08-23 12:38:32');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2102, 'v31k58NbPd1OsBFhKu1XYaiy0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Production of additional evidence under Order 41 Rule 27, CPC cannot be as a matter of right. Party must explain why evidence could not be produced in trial court despite due diligence. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Commissioner BBMP Vs Rajendren K.M.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R.F.A 1240 of 2019 decided on 1 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.R. Krishna Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This appeal by the defendant / BBMP in O.S.No.4759/2010 is directed against the impugned judgment and decree dated 01.07.2013 passed by the XVI Addl. City Civil & Sessions Judge, Bengaluru City, whereby the said suit for declaration, mandatory injunction and other reliefs filed by the respondent / plaintiff against the appellant / defendant in respect of the suit schedule immovable properties was decreed by the trial Court in favour of the respondent / plaintiff against the appellant / defendant.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The material on record indicates that the respondent / plaintiff instituted the aforesaid suit for declaration that he was the owner of the portion of the schedule property upon which road is constructed, for mandatory injunction directing the appellant / defendant to remove the road laid upon the schedule property and restore the schedule property to its original condition and consequently, for possession of a portion of the schedule property upon which the said road is laid and for other reliefs. The suit schedule property comprised of three items of lands bearing Survey No.18/9 measuring 21 guntas, Survey No.18/10 measuring 1 acre 1 gunta and Survey No.19/6 measuring 24 guntas, all situated at Basavanapura Village, K.R.Puram Hobli, Bengaluru East Taluk. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. It was specifically contended that the plaintiff purchased the schedule property vide registered Sale Deed dated 18.01.2005 pursuant to which the revenue records / khatha were mutated into his name and he has been in lawful and peaceful possession and enjoyment of the property since the date of purchase. It was contended that in March 2009, the defendant / BBMP illegally, highhandedly and unauthorisedly trespassed over all the three items of the schedule property and laid a road 30 feet wide and 630 feet long which passes through all the three survey numbers. It was also contended that the defendant / BBMP did not acquire the schedule property and no layout was formed in the property and that the formation of the road by the BBMP is in contravention of Sections 280 and 281 of the Karnataka Municipal Corporations Act, 1976 and by the said formation of the road, the BBMP has encroached upon the schedule property and dispossessed the plaintiff from the portion of the same upon which the road was formed. It was further contended that the plaintiff got issued a legal notice dated 21.04.2010 under Section 482 of the KMC Act calling upon the defendant to restore the schedule property to its original condition and to deliver the said property to him and since the defendant did not comply with the demands of the plaintiff, he instituted the aforesaid suit before the trial Court.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>The following points arise for consideration:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space:pre\">	</span>Whether the application – I.A.2/2022 filed by the appellant under Order 41 Rule 27 CPC for permission to produce additional evidence deserves to be allowed?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ii)<span style=\"white-space:pre\">	</span>Whether the impugned judgment and decree passed by the trial Court warrants interference in the present appeal?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Reg: Point No.(i):</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. A perusal of the material on record including the impugned judgment and decree will indicate that the trial Court has considered and appreciated the material on record and has come to the conclusion that while the plaintiff had established his title and possession over the suit schedule property, the defendant had not substantiated its specific defence that a private layout was formed about 15 years ago, that the site owners and general public are using the subject road and that the same was not developed / improved by the BBMP despite representation by the Residents Welfare Association due to lack of funds. In this context, the trial Court noted that the defendant had not adduced any legal or acceptable evidence to prove its defence and contentions. A perusal of the documents sought to be produced along with I.A.2/2022 will indicate that the said documents are neither relevant nor material for the purpose of disposal of the present appeal nor to enable the defendant to establish its defence. Further, neither valid nor sufficient grounds have been made out by the appellant to enable it to seek the indulgence of this Court and produce additional evidence particularly when nothing is placed on record as to why the said documents could not be produced despite exercise of due diligence by the appellant. It is also significant to note that the necessary ingredients / parameters contemplated under Order 41 Rule 27 CPC are conspicuously missing and absent in the application and affidavit and consequently, the contention of the appellant that the additional documents deserve to be received on record cannot be accepted.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.2. In view of the aforesaid facts and circumstances, I am of the considered opinion that neither valid nor sufficient ground has been made out by the appellant to enable it to seek the indulgence / permission of this Court to adduce additional evidence and consequently, there is no merit in the application and the same is liable to be rejected. Accordingly, I answer point No.(i) against the appellant by holding that I.A.2/2022 is liable to be rejected and consequently, the same is hereby rejected.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Reg. Point No.(ii):</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. A perusal of the material on record will indicate that in order to establish his title and possession over the suit schedule property as well as the identity and location of the road formed in the property, the plaintiff has produced Ex.P1 – registered Sale Deed dated 18.01.2005, RTCs at Ex.P2 to Ex.P16 and the Sketch at Ex.P20, all of which have remained unimpeached, unchallenged and uncontroverted in the cross- examination. As against this, the defendant has not adduced any oral or documentary evidence to establish its defence, in this context, it is relevant to note that it is the specific defence of the appellant / defendant that a layout was formed on the suit schedule property 15 years back, that the subject road was formed at the time of formation of layout and is being used by local residents and that despite the Residents Welfare Association making representation to the defendant to improve the subject road with better facilities, the BBMP could not do so due to lack of funds. It is needless to state that this defence is essentially a question of fact which would necessarily have to be established by the defendant by adducing legal and acceptable evidence; however, the material on record discloses that except giving suggestions to PW.1 in his cross-examination who has denied the same, absolutely no evidence has been adduced by the defendant in support of its specific defence referred to supra. Further, the contention that Ex.D1 (confronted and marked in the cross- examination of PW.1), i.e., Legal Notice dated 07.05.2010 issued on behalf of the plaintiff to the BBMP and its officials establishes that he has admitted formation of layout and road in the suit schedule property is misconceived and untenable inasmuch as a perusal of the said notice will clearly establish that there is no such admission anywhere by the plaintiff who has on the other hand made several other allegations against BBMP and private parties including alleging fraud, forgery, etc., Under these circumstances, even this contention urged on behalf of the appellant cannot be accepted.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.2. Upon re-appreciation and re-evaluation of the entire material on record, I am of the considered opinion that the impugned judgment and decree passed by the trial Court does not suffer from any illegality or infirmity nor can the same be said to be perverse or capricious warranting interference by this Court in the present appeal. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.3. Accordingly, point No.(ii) is also answered against the appellant.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space:pre\">	</span>Appeal is hereby dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2be0e54817e6b6aae0ff74e9637fa8f2.JPG', '42ff5510a7e9501387c073837ee6cdbe.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-24', 1, '', '', '2022-08-22 20:48:18', '2022-08-24 12:16:46'),
(2103, 'GWNDti9eHnjVABS4ie5D6RlYd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'BBMP Act 2020. Whenever transfer of property comes to the knowledge of the Chief Commissioner through notice under Section 149, he is bound to enter the name of the transferee in the property tax register. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Santhosha Kumar M Vs The State of Karnataka and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 12275 of 2022 decided on 1 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The land measuring 2 acres in survey No.88 (new No.216) situated in Laggere Village was granted to one Sri. Muniyappa vide order dated 21.12.1952 and in turn Muniyappa executed a registered sale deed in favour of Freedom Fighter House Building Society. The original grantee filed an application under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as \'PTCL Act\' for short) and the Assistant Commissioner by order dated 11.07.2017 declared the sale deed executed in favour of the Society as null and void since the same was in contravention of Section 4 of the PTCL Act and restored the subject land in favour of the original grantee. The original grantee sold one of the site No.248 bearing khata No.350 in favour of the petitioner by executing a registered sale deed. In pursuance of the same, the petitioner submitted an application with respondents-BBMP for registering the khata in his favour in respect of the subject site. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2. Respondents-BBMP rejected the application submitted by the petitioner by issuing an endorsement dated 05.05.2002 stating that the khata in respect of the subject site is registered in favour of Marimallaiah. Taking exception of the same, this petition is filed.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">7. The sale deed executed in favour of the Freedom Fighter House Building Society has been annulled by the Assistant Commissioner under Section 5 of the PTCL Act and in pursuance of the same, the legal heir of the deceased original grantee has sold the subject site in favour of the petitioner through a registered sale deed dated 21.04.2022. Section 149(3) of the Act specifies that<i> \'whenever such transfer comes to the knowledge of the Chief Commissioner or authorised officer through such notice, the name of the transferee shall be entered in the property tax register\'. </i>Respondent No.3 instead of considering the application submitted by the petitioner, in the light of Section 149 of the Act has issued impugned endorsement and the same is contrary to Section 149 of the Act and is not sustainable.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i. The writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'aba6c3fd4532e214ce8884d95e572a0a.jpeg', 'afbb2df269dd703cba7bd0646d4a4092.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-24', 1, '', '', '2022-08-22 20:57:03', '2022-08-24 13:55:02'),
(2109, 'MNbWfjAQRW7Kjm8Nq81JgD5en', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal prosecution or confiscation proceedings for benami transactions entered into prior to the coming into force of the 2016 Act are unconstitutional. Supreme Court.', '<p><b>Union of India and another vs M/s. Ganpati Dealcom Pvt Ltd<br>Civil Appeal 5783 of 2022 decided on 23 August 2022<br></b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Chief Justice N.V. Ramana, Justice Krishna Murari and Justice Hima Kohli.&nbsp;</b></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p><b>18. Conclusion <br>18.1 In view of the above discussion, we hold as under:&nbsp; <br></b></p><p><b>a) Section 3(2) of the unamended 1988 Act is declared as unconstitutional for being manifestly arbitrary. Accordingly, Section 3(2) of the 2016 Act is also unconstitutional as it is violative of Article 20(1) of the Constitution. <br>b) In rem forfeiture provision under Section 5 of the unamended Act of 1988, prior to the 2016 Amendment Act, was unconstitutional for being manifestly arbitrary.&nbsp; <br>c) The 2016 Amendment Act was not merely procedural, rather, prescribed substantive provisions.&nbsp;<br>d) In rem&nbsp; forfeiture provision under Section 5 of the 2016 Act, being punitive in nature, can only be applied prospectively and not retroactively. <br>e) Concerned authorities cannot initiate or continue criminal prosecution or confiscation&nbsp; proceedings for transactions entered into prior to the coming into force of the 2016 Act, viz., 25.10.2016. As a consequence of the above declaration, all such prosecutions or confiscation proceedings shall stand quashed.&nbsp; <br>f) As this Court is not concerned with the constitutionality of such independent forfeiture proceedings contemplated under the 2016 Amendment Act on the other grounds, the aforesaid questions are left open to be adjudicated in appropriate proceedings.&nbsp; <br></b></p><p><b>18.2 The appeal is disposed of in the above terms</b></p>', 'fbe5a7b84f2334e20cb60889158a7b43.JPG', '1e3635b3f80bc5981ff970748ce3b35a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-23', 1, '', '', '2022-08-24 03:37:43', '2022-08-24 16:42:11'),
(2105, 'GWRN3m8HB4M89NNAVybOQDMay', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When there is no lapse of acquisition proceedings under Section 24(2) of the 2013 Act, compensation can be determined only under the Land Acquisition Act, 1894. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Union of India and another Vs Subhash Chander Sehgal and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5439 of 2022 decided on 22 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 01.03.2016 passed by the High Court of Delhi at New Delhi in Writ Petition (C) No.1648 of 2015 whereby the High Court has declared that the acquisition proceedings with respect to the subject land had lapsed in terms of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as ‘the Act 2013’), the Union of India through Land Acquisition Collector and Another have preferred the present appeal.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. The undisputed facts are that in the present case, the possession of the land in question was already taken over by the appropriate authority in the year 1987. It is also an admitted position that the subject land has been utilized way back in the year 1987 for a park by East Delhi Municipal Corporation. However, despite the above and relying upon the decisions of this Court in the case of Pune Municipal Corporation and another versus Harakchand Misirimal Solanki and others reported in (2014) 3 SCC 183 and Sree Balaji Nagar Residential Association vs. State of Tamil Nadu, (2015) 3 SCC 353, the High Court has declared that the acquisition proceedings in respect of the subject land had lapsed in terms of Section 24(2) of the Act, 2013.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3.2 In such a situation no relief of lapse of acquisition proceedings can be countenanced in this case in view of the law laid down by this Court in the case of Indore Development Authority (supra). Once it is held that there is no lapse of acquisition proceedings under Section 24(2) of the 2013 Act, the land which has stood vested with the appellant continues to do. Also, there is no question of payment of any compensation to the writ petitioners in respect of the suit land as per the Act, 2013.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>However, the original writ petitioners shall be entitled to compensation under the Land Acquisition Act, 1894 as per Award No.102/1986­87 dated 19.09.1986 as referred to by the High Court in para 3 of the impugned judgment and order or in the event any enhancement is sought by the original writ petitioners in accordance with law.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3.3 In view of the above and for the reason stated above, the impugned judgment and order passed by the High Court declaring that the acquisition proceedings in respect of the subject land has lapsed in terms of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and directing the authorities to pay the compensation to the writ petitioners in respect of the suit land as per Act 2013 deserves to be quashed and set aside and is accordingly quashed and set aside. Consequently, the writ petition filed by the private respondents before the High Court stands dismissed. Present Appeal is accordingly allowed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>However, in the facts and circumstances of the case, there shall be no order as to costs. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '22fac472d1bcd7c302d4853b9abac939.jpeg', '67413c1afb8bc5249b10681c35c7dce4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-24', 1, '', '', '2022-08-23 16:33:43', '2022-08-24 06:23:41'),
(2106, 'VReS6QpSkTIY6B6pgoGoPZgHU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque bounce case. Dishonor of cheque due to stop payment, account closed and signature mismatch would attract the penal provision. High Court of Jammu and Kashmir. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mohammad Shafi Wani Vs Noor Mohammad Khan<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRM (M) 308 of 2021 decided on 17 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sanjay Dhar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1) Petitioner has challenged the complaint filed by the respondent\r\nagainst him for offence under Section 138 of Negotiable Instruments Act\r\n(hereinafter for short “the NI Act”) pending before the Court of Judicial\r\nMagistrate, 1st Class (1st Additional Munsiff), Srinagar. Petitioner has also\r\nchallenged order dated 26.07.2019, whereby the learned Magistrate has,\r\nafter taking cognizance of the offence, issued process against the\r\npetitioner</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2) It appears from the record that respondent has filed a complaint\r\nagainst the petitioner alleging that a cheque bearing No.406696 dated\r\n01.03.2019 for an amount of Rs.5.00 lacs, issued by petitioner in his\r\nfavour which was drawn on J&K Bank Branch unit Habbak Crossing, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Srinagar, was returned unpaid by the concerned bank with the remarks\r\n“funds insufficient and drawer’s signature differs”. The respondent is\r\nstated to have served a legal notice of demand upon the petitioner and\r\nwhen the petitionerfailed to make the payment within the statutory period,\r\nthe complaint, which is subject matter of this petition, came to be filed\r\nbefore the trial Magistrate. The learned Magistrate, after recording the\r\npreliminary evidence, took cognizance of the offence and issued process\r\nagainst the petitioner in terms of its order dated 26.07.2019. The\r\ncomplaint and the order issuing process against the petitioner is under\r\nchallenge before this Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5) The first question that falls for determination in the instant petition\r\nis as to whether dishonor of a cheque for the reason that there was\r\ndifference of signatures appearing on the cheque constitutes an offence\r\nunder Section 138 of the NI Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6) From a perusal of the aforesaid provision, it is clear that an offence\r\nunder Section 138 of the NI Act is constituted when a cheque drawn by a\r\nperson on an account maintained by him with a banker for payment of any\r\namount of money to another person from out of that account for the\r\ndischarge of any debt, is returned by the bank unpaid either because the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">amount of money standing to the credit of that account is insufficient to\r\nhonour the cheque or that it exceeds the amount arranged to be paid from\r\nthat account by an agreement made with that bank. At first blush, it\r\nappears that it is only in two situations that Section 138 of the NI Act is\r\nattracted, firstly when there are insufficient funds available in the bank\r\naccount of the person who is drawing the cheque and secondly where it\r\nexceeds the arrangement. However, the provision has been interpreted by\r\nthe Supreme Court in a number of judgments in a manner so as to include\r\nwithin its ambit even the cases where the dishonor of cheque has taken\r\nplace for the reasons other than the aforesaid two reasons.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10) In the face of foregoing discussion, it is clear that the Supreme\r\nCourt has interpreted the provisions contained in Section 138 of the NI\r\nAct in a liberal manner so as to achieve the object for which the said\r\nprovision has been enacted. Not only the cases of dishonour of cheques on\r\naccount of insufficiency of funds or on account of exceeding of\r\narrangement but the cases involving dishonour of cheques on account of\r\n“stop payment” and “account closed” have also been brought within the\r\nambit of offence under the aforesaid provision.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14) The Supreme Court on the basis of the aforesaid observations and\r\nthe ratio, while dealing with a case in which the cheques were\r\ndishonoured by the bank on the ground that drawer’s signatures were\r\nincomplete and that no image was found or that the signatures did not\r\nmatch, came to the conclusion that criminal prosecution against the\r\naccused in such cases should be allowed to proceed and the judgment\r\nand orders passed by the High Court quashing the criminal proceedings\r\nwere set aside.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15) Both the judgments of the Supreme Court in Vinod Tanna’s case\r\nas well as in Laxmi Dyechem’s case (supra) have been rendered by the\r\nBenches of co-equivalent strength. The judgment rendered in Laxmi\r\nDyechem’s case is latest in point of time, wherein the ratio laid down in\r\nVinod Tanna’s case has been termed as per incuriam. Therefore, as per\r\nlaw of precedents, the ratio laid down in Laxmi Dyechem’s case has to be\r\nfollowed. Accordingly, as per the ratio laid down in Laxmi <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Dyechem’s case, the contention of the petitioner that in the instant case\r\noffence under Section 138 of the NI Act is not constituted because the\r\ncheque was dishonoured on account of difference in signatures and not for\r\nthe reason of insufficiency of funds or exceeding the arrangement,\r\ndeserves to be rejected.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19) In view of the foregoing enunciation of law on the subject, it is\r\nclear that even if it is assumed that the petitioner had issued the cheque in\r\nfavour of respondent as a security, still then it cannot be stated that no\r\noffence is made out, once the cheque issued by him has been dishonoured\r\nby the banker.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n20) Even otherwise, the questions whether the petitioner had issued the\r\ncheque as a security pursuant to the memorandum of understanding\r\nexecuted between the parties and whether at the time when the cheque <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was presented for its payment, it was not for discharge of any debt or any\r\nother liability cannot be determined either by the trial Magistrate at the\r\ntime of taking of cognizance or by this Court in these proceedings. These\r\nare defences available to the accused/petitioner, veracity whereof can be\r\ndetermined during the trial of the case.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21) For the foregoing reasons, the petition is found to be devoid of\r\nmerit and the same is, accordingly, dismissed. Interim order dated\r\n29.09.2021 is vacated. The trial Magistrate is directed to proceed further\r\nin the matter in accordance with law.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2595d8b76ccc77fa7b742aa317951fc3.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-24', 1, '', '', '2022-08-23 16:54:52', '2022-08-24 08:44:40'),
(2107, 'tdVVDZKUYVjQBNBGON7u10j37', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When physical relationship between a man and a woman is purely consensual, criminal proceedings under Section 376 IPC are liable to be quashed. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Shambhu Kharwar Vs State of Uttar Pradesh and another.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Criminal Appeal 1231 of 2022 decided on 12 August 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Dhananjaya Y Chandrachud and Justice A S Bopanna.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. The appeal arises from a judgment dated 5 October 2018 of a Single Judge of the High Court of Judicature at Allahabad. The High Court dismissed an application instituted by the appellant under Section 482 of the Code of Criminal Procedure 19731 for quashing Criminal Case No 785 of 2018 in the Court of the Addl. Chief Judicial Magistrate (First), Ballia arising out of Case Crime No 11 of 2018 registered at Police Station Rasra, District Ballia for an offence punishable under Section 376 of the Indian <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Penal Code 18602 . The appellant had also sought the quashing of a charge-sheet bearing charge-sheet No 94 of 2018 dated 23 April 2018 submitted under Section 173 of CrPC and the order taking cognizance dated 24 May 2018.</span><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">5. The statement of the second respondent was recorded under Section 161 of CrPC during investigation. Her statement was recorded under Section 164. In the statement under Section 164, the second respondent stated that during the course of training at a Teachers’ Training College, she came in contact with the appellant in 2013 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and they got into a relationship. On 12 June 2014, the marriage of the second respondent was solemnized with someone else in spite of which the relationship with the appellant continued. The second respondent stated that the appellant had compelled her to break away from the marriage and her matrimonial relationship had come to an end since March 2015, barely three months after she stayed in the matrimonial home. The second respondent states that she thereafter returned to the parental home and then started living with the appellant. After the completion of her training in 2016, the second respondent continued to live with the appellant until December 2017. The grievance of the second respondent was that the appellant got engaged to someone else on 10 December 2017. Though the appellant is alleged to have agreed to break off his engagement, he failed to abide by his assurance.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">12. In the present case, the issue which had to be addressed by the High Court was whether, assuming all the allegations in the charge-sheet are correct as they stand, an offence punishable under Section 376 IPC was made out. Admittedly, the appellant and the second respondent were in a consensual relationship from 2013 until December 2017. They are both educated adults. The second respondent, during the course of this period, got married on 12 June 2014 to someone else. The marriage ended in a decree of divorce by mutual consent on 17 September 2017. The allegations of the second respondent indicate that her relationship with the appellant continued prior to her marriage, during the subsistence of the marriage and after the grant of divorce by mutual consent.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">13. In this backdrop and taking the allegations in the complaint as they stand, it is impossible to find in the FIR or in the charge-sheet, the essential ingredients of an offence under Section 376 IPC. The crucial issue which is to be considered is whether the allegations indicate that the appellant had given a promise to the second respondent to marry which at the inception was false and on the basis of which the second respondent was induced into a sexual relationship. Taking the allegations in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">FIR and the charge-sheet as they stand, the crucial ingredients of the offence under Section 375 IPC are absent. The relationship between the parties was purely of a consensual nature. The relationship, as noted above, was in existence prior to the marriage of the second respondent and continued to subsist during the term of the marriage and after the second respondent was granted a divorce by mutual consent.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">14. The High Court, in the course of its judgment, has merely observed that the dispute raises a question of fact which cannot be considered in an application under Section 482 of CrPC. As demonstrated in the above analysis, the facts as they stand, which are not in dispute, would indicate that the ingredients of the offence under Section 376 IPC were not established. The High Court has, therefore, proceeded to dismiss the application under Section 482 of CrPC on a completely misconceived basis.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. We, accordingly allow the appeal and set aside the impugned judgment and order of the High Court dated 5 October 2018 in application u/s 482 No 33999 of 2018. The application under Section 482 of CrPC shall accordingly stand allowed. The Case Crime No 11 of 2018 registered at Police Station Rasra, District Ballia, charge-sheet dated 23 April 2018 in the aforementioned case and the order dated 24 May 2018 in Criminal Case No 785 of 2018 in the Court of the Addl. Chief Judicial Magistrate (First), Ballia taking cognizance of the charge-sheet shall accordingly stand quashed.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">16. Pending application, if any, stands disposed of.</span></span></p>', 'cbfa32e3347e453b39b86562998d607c.jpg', '1f8619345d0eb50df6d3bb7963f88bbe.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-24', 1, '', '', '2022-08-23 17:19:59', '2022-08-24 10:35:32');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2108, 'psTVjM3mREHnw9OEgrRm7Fpqf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prospective allottee of an industrial plot has no right to challenge denotification of lands from the acquisition proceedings. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nooraine Fazal and others Vs Base Corporation Limited and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Appeal 15210 of 2011 decided on 22 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P.S. Dinesh Kumar and Justice M.G. Uma.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Petitioner’s case is, BASE Corporation is a public limited company in the business of manufacturing batteries.  It had entered into a joint venture agreement with Matsushita Panasonic, Japan, to set up an industry in Bengaluru to manufacture power back up banks. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. BASE Corporation had entered into agreements with the owners of land bearing Survey No.29/2, measuring 1 acre 17 guntas, in Kariyammana Agraghara, Bengaluru South Taluk. Land owners did not perform their part of the obligation.  BASE Corporation filed a suit2 for specific performance. It had also entered into an ‘oral agreement’ to purchase 4 acres in Survey Nos.28/1 and 28/2. A Preliminary Notification under Section 28(3) of the KIADB Act was issued on December 1, 2001 to acquire several lands including the aforementioned lands.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 7. BASE Corporation submitted a representation dated July 8, 2002 to the Chief Minister, Government of Karnataka, requesting him to direct KIADB to complete the acquisition formalities with regard to lands bearing Survey No.29/1 and 28/2, together measuring 5 acres. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">8. On August, 19, 2002, KIADB wrote to BASE Corporation that an area of 5 acres would be acquired in survey No.28 and 29/2 subject to BASE Corporation obtaining ‘no objection’ from M/s Royal Fragrances Pvt. Ltd. and making an application in the format prescribed by the KIADB for acquisition and allotment. Subsequently, KIADB also called upon the BASE Corporation to deposit Rs.22,50,000/- and the said payment was made.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. On August 22, 2003, third respondent in the writ petition, who was a Minister of State for Science and Technology, wrote to the Chief Minister stating that her daughter(sixth respondent) had paid advance sale consideration to purchase lands in Survey No.27, 28/1, 28/2 & 29/2 to start a business school and requested for dropping the said lands from acquisition proceedings. On November 29, 2003, the Pollution Control Board wrote a letter to the Special Deputy Commissioner, KIADB, stating that lands proposed for establishment of power back up system was not ideal as the process involved use of lead.  On December 01, 2003, BASE Corporation wrote a letter to the KIADB, stating that the allotment of land should not be delayed as it was causing huge revenue loss. The KIADB  offered  to  allot  equivalent  area  of  land elsewhere, but the BASE Corporation did not agree to shift the project site.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. In the light of rival submissions, the following points arise for consideration of this Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>a) Whether findings with regard to malafides and colourable exercise of power are sustainable? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>b) Whether subsequent events can be considered in an intra-court appeal? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>c) Whether writ petitioner’s cause of action has been rendered redundant? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>d) Whether BASE Corporation is entitled for allotment in pursuance of doctrine of Promissory Estoppel?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Re: point (a):</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 20. Undisputed facts of the case are, on July 8, 2002, BASE Corporation Ltd., submitted a representation to the Chief Minister of Karnataka with a request to direct the KIADB to complete the acquisition  formalities  and  give  the  land  under ‘Single Unit Complex Scheme’. According to the writ petitioner, the third respondent, who was a Minister, had written a letter to the Chief Minister to drop the said lands from acquisition, on the ground that her daughter had paid advance sale consideration to the land owners and had desired to start a business school; and based on that letter, the acquisition proceedings<br></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>33. Viewed from other angle, the facts of this case disclose that one thing is common. Both BASE Corporation and the third respondent’s daughter claim to have entered into Agreements with the land owners to purchase the property in question. Both of them have submitted their representations to the Chief Minister at different points of time. BASE Corporation is a Corporate entity. It was desirous of getting the Industrial site allotted by the KIADB. Under Regulations 5 to 10, a person desirous of acquiring Industrial site from KIADB is required to make an application to the KIADB. It is relevant to note that in its letter to the Chief Minister, BASE Corporation has stated that Sy. No.28 & 29/2 had been earmarked for some other Company by name M/s Royal Fragrance and a portion of the land was also earmarked for Global Tech Park Pvt. Ltd. It has also stated that it was willing to surrender 25 guntas of land in Sy. No. 29/2 and sought for allotment of the lands proposed for acquisition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>36. But there is a classic difference in the approach by both. BASE Corporation, having failed in attempt to get the land from the land owners approached the Chief Minister in violation of Regulations. Third respondent approached with a request to drop the acquisition and there is no violation of statutory procedure except allegation of malafide exercise of power. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>37. Hence this is a case in which, BASE Corporation, having approached the Chief Minister circumventing the Regulations is making allegation of malafide exercise of power. It is settled that a person who does not approach with clean hands, is not entitled for any relief under the extra ordinary and discretionary jurisdiction under Article 226 of the Constitution of India. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>38. Accordingly point (a) is answered in the ‘negative’.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>Re: point (b):</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>39. It was argued on behalf of the appellants and the land owners that proceedings have been initiated under The Insolvency and Bankruptcy Code, 2016 against BASE Corporation and Resolution Professional has been appointed. It was urged by Shri. Ravishankar that BASE Corporation owes about Rs. 1,500 crores to its creditors. A copy of the order dated August 2, 2019 passed by the NCLT has also been placed on record. It was urged that in view of the subsequent events, BASE Corporation is not entitled for any relief.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b> 40. In Laxmi & Co. v. Anant R. Deshpande, it is held that where the Court finds that because of the altered circumstances, the original relief has become inappropriate by subsequent events, the Court can take notice of such changes.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>42. In view of the above authorities, this Court can take cognizance of the subsequent events and accordingly point (b) is answered in the affirmative.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>Re: point (c):</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>44. Liquidation proceedings have been initiated against BASE Corporation. It is alleged that it owes about Rs.1,500 Crores to its creditors. KIADB had offered an alternative land and the same was refused by the BASE Corporation on the ground that its Japanese Collaborator would not agree for change in the location. Therefore, BASE Corporation’s cause of action has been rendered redundant and accordingly, Point (c) is answered in the affirmative.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>Re: point (d):</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>45. It was argued by Shri. Ravishankar that BASE Corporation has no vested right in the land. Therefore, the Doctrine of Promissory Estoppel could not have been invoked and the KIADB could not have been directed to allot land to the appellant.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>47. In view of the above legal position, BASE Corporation has no vested right in the land in question and therefore, the Doctrine of Promissory Estoppel could not have been invoked. Accordingly, point (d) is answered in the negative.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>51. Placing reliance on Shri Ramtanu Coop. Housing Society Ltd. Vs. State of Maharashtra ,it was also argued that special procedure has been designed under the Land Acquisition Act for acquisition of land for the Companies and there is no such provision in the KIADB Act. KIADB Act has its own procedure and there is no provision in the Act for acquisition of land for a Company.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>53. In view of the subsequent events, particularly, appointment of resolution professional by the NCLT in the liquidation proceedings of BASE Corporation, and the passage of more than 18 years from the date of denotification, we are of the view that the relief sought for by BASE Corporation in the writ petition has become redundant.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(a)<span style=\"white-space:pre\">	</span>Writ appeals No.15210/2011, 15417/2011 and 15418/2011 are allowed; </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(b)<span style=\"white-space:pre\">	</span>Order dated June 9/10, 2011 in W.P. No.19579/2004 is set-aside and the said writ petition is dismissed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>No costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a1272528f9d44a73888fadc71b1c22be.jpg', '8fc9fb33016021a05414ae3dce1f609f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-25', 1, '', '', '2022-08-23 17:47:57', '2022-08-25 13:54:48'),
(2113, 'zlFzikw5TNr024mhpReL9oDFn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When suit for specific performance is dismissed and in the absence of prayer against dispossession, defendant/owner has a right to get back possession of the property in accordance with law. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Suryakant Baburao Patil and others Vs Anandrao through Lrs and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>RSA 100967 of 2022 decided on 1 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ravi V. Hosamani.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Appellant herein was original plaintiff, while respondents herein were defendants no. 1 to 4 respectively in suit. For sake of convenience, parties to this appeal will hereinafter be referred to by their rankings before trial Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 3. O.S. No. 764/1994 was filed seeking specific performance of agreement of sale dated 14. 5.1982. It was stated that father of defendants Tukaram Yerudkar executed an agreement agreeing to sell northern  2  acres  30  guntas  of  land  in  Survey No. 95/ 1 of Yamagarni for total sale consideration of Rs.27, 500 by receiving advance sale consideration of Rs.25, 000/-. It was stipulated that plaintiff was required to pay balance sale consideration of Rs.2, 500/- at the time of registration of sale deed which was agreed to be within three years from date of agreement of sale. It was further stated that plaintiff was put in possession of suit property on date of agreement and as such he continued in possession without obstruction. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. In the light of above, she submitted following substantial questions of law for consideration:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space:pre\">	</span>Whether both courts were justified in dismissing suit merely for failure to produce original agreement of sale dated 14. 5. 1982 ?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> ii)<span style=\"white-space:pre\">	</span>Whether by rejecting IA no. 3 to lead secondary evidence, there was denial of opportunity?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>iii)<span style=\"white-space:pre\">	</span>Whether both courts erred in over looking evidence on record while non- suiting plaintiff?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>18. From above submission, it is evident that very execution of agreement of sale based on which plaintiff filed suit for specific performance is in dispute. While plaintiff contends that father of defendants namely, Tukaram Yerudkar executed agreement of sale on 14.5. 1982 agreeing to sell northern extent of 2 acres 30 guntas of land bearing Sy. No.95/ 1, by receiving advance of Rs. 25 ,000/- out of total sale consideration of Rs. 27, 500/-, with condition to execute sale deed within three years, it is case of defendants that their father was not owner of suit land as it was standing in name of their mother Krishnabai. They also denied execution of any  agreement  of  sale  by  their  father,  receipt  of advance amount and putting plaintiff in possession of suit property.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>21. It observed that when entire case of plaintiff was based on written agreement, without producing original agreement, no amount of oral evidence would be useful in establishing agreement. Without establishing material fact of agreement of sale, plaintiff’ s suit for specific performance would not be tenable. It also observed that plaintiff failed to establish sufficient basis or justification for seeking permission to lead secondary evidence and therefore dismissed suit holding that plaintiff would not be entitled to any relief.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>23. Above material would reveal that initially plaintiff asserted his claim for specific performance based on written agreement of sale. However, he failed to produce the original agreement of sale. He also failed to give sufficient explanation about circumstances under which it was lost.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>24. Even evidence led by plaintiff and deposition of scribe and witness was also to the effect that agreement of sale was in writing. Such being case, upon rejection of permission to lead secondary evidence, very contention of plaintiff that agreement of sale was oral contradict entire pleading and evidence of plaintiff. Infact, such contentions would be mutually destructive. Hon’ble Supreme Court in Devasahayam (dead) by LRs. Vs.  P.  Savitramma  and  others  reported  in  2005 (7) SCC 653 has held that though parties are permitted to take inconsistent pleas, they are barred from taking mutually destructive pleas.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>25. Both Courts upon due appreciation of evidence arrived at a conclusion that plaintiff failed to establish agreement of sale and consequently dismissed suit. The conclusions arrived at are neither perverse nor suffer from capriciousness. Therefore, no substantial question of law as proposed arises for consideration. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>26. At this juncture, learned counsel for appellant- plaintiff submitted that plaintiff had claimed to be in possession  of suit property from date of agreement of sale and neither Courts took same into account while passing impugned judgment and decree. She sought liberty to protect plaintiff’ s possession against forcible dispossession especially as plaintiff had spent money on improvements and had also constructed residential house which were substantiated by Exs.P 10 to P 25. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>27. While passing impugned judgment and decree, trial Court has held plaintiff failed to prove agreement of sale and also that possession of suit land was delivered. But it has not considered contents of Exs. P10 to P25 while arriving such conclusions. Only reason assigned was plaintiff’s failure to establish sale. First appellate Court affirmed reasoning of trial Court without any specific discussion regarding plaintiff’s possession or improvements made. Indeed there was no prayer by plaintiff for protection of his possession. Therefore, failure to give specific findings about possession cannot be considered as material irregularity as dispute was examined primarily from point of view of agreement of sale. Failure to prove agreement of sale has led to dismissal of suit. Such dismissal would only entitle defendant from dispossessing plaintiff by adhering to procedure established by law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>Appeal is dismissed. No order as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '52e956d424cc176a3911f00a65e48148.JPG', 'a553c29eb763264c0aab97e94e726ce8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-26', 1, '', '', '2022-08-24 20:01:16', '2022-08-26 08:31:27'),
(2114, 'AOdkcKXBUQgtAtH3QBQjYI8f1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Rejection of claim for regularisation on an earlier occasion will not be an impediment for fresh consideration. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ashwiniraj R Vs The Secretary Social Welfare Department of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WP 8442 of 2020 and connected matters decided on 4 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Cluster of these petitions seek to challenge an order dated 4-04-2018 by which the claim of the petitioners in all these petitions for regularization of their services is turned down and have sought a writ in the nature of mandamus directing the respondents to regularize the services of the applicants by declaring the appointments of the petitioners as valid and further seek that their services should be continued till their cases are considered for regularization.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. Brief facts leading to the filing of the present petitions, as borne out from the pleadings are, as follows:-</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Till the year 1977-78 private educational institutions and religious mutts were running residential schools in the State of Karnataka. In the year 1977 the Social Welfare Department started residential schools to the children of tribal community under the name Ashrama schools. In these schools tribal children aged 5 to 10 years were given free education and hostel facilities including food. In the year 1986 Government of India started residential schools in every District in the country in the name and style of ‘Navodaya Model Residential Schools’ for encouraging talented and meritorious children belonging to Scheduled Castes, Scheduled Tribes, Minorities and other Backward Classes residing in rural areas.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. In the year 1994-95 Government of Karnataka also started residential schools in rural areas to tap and encourage the talent and identify meritorious children by providing free and quality education. These residential schools were imparting education under different names such as Navodaya Model Residential Schools, Morarji Desai Model Residential Schools, Ekalavya Residential Schools, Kittoor Rani Chennamma Residential Schools and Minority Residential Schools. These residential schools came under the control of the Social Welfare Department, Backward Class Department, Tribal Welfare Department and Education Department. In all these residential schools free education, boarding, lodging, medical facilities and all necessary concomitants for the purpose of imparting education were provided.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. The recruitment of teachers into these schools was yet to come about as the Cadre and Recruitment Rules to the aforesaid different residential schools in the matter of recruitment of teaching and non-teaching staff had not been notified. Therefore, the Government from time to time had issued Government orders, circulars and guidelines for appointment of teachers and non-teaching staff on temporary and contract basis. Owing to the purpose for which the schools were established, temporary and contract teachers were appointed from time to time.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. In order to bring these residential schools under one entity with regard to control, supervision and management, Government of Karnataka on 06-10-1999 registered a society called the Karnataka Residential Educational Institutions Society (‘the Society’ for short) under the provisions of the Karnataka Societies Registration Act, 1960. All the residential schools aforesaid in different names were brought under the Society. Bye-laws of the Society were framed for management of existing schools and also new schools that were to be set up. It is the Society which later starts new residential schools in addition to existing schools. Even in new residential schools teaching and non-teaching staff were appointed either on temporary or contract basis.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18. The afore-narrated facts of establishment of Society, approach of the petitioners to this Court earlier and those proceedings as narrated hereinabove not being in dispute need not be reiterated. The issue in the case at hand is whether the petitioners are entitled to the benefit of weightage between the earlier examination and the date on which the Regulations of weightage came to be deleted and further, whether the petitioners are not entitled to regularization.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20. Insofar as the claim of regularization is concerned, the respondent-Society has placed on record certain orders of appointments appointing several of the petitioners in those petitions. For the remainder of the petitioners who are not appointed, the learned Senior Counsel would again rely on the earlier judgment of the learned single Judge wherein, a specific point was formulated for consideration, whether the petitioners were entitled to absorption and the absorption of others was discriminatory. This Court (supra) while declining to answer the said point in favour of the petitioners had clearly held that having regard to the nature of appointments, length of service and their age, they constitute a different class and the Government did not extend the benefit of absorption of principals and other teachers appointed subsequent to 2004 and 2005 and held that it is for the legislature to determine what categories it would embrace within the scope of legislation.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>22. The judgment in the case of UMADEVI was rendered on 10-04-2006. By then, the petitioners in the case at hand were all appointed albeit through outsourced agencies. Much water has flown after the judgment of the Apex Court in the case of UMADEVI. The subsequent judgments that are rendered would clearly indicate that employees who are appointed on contract basis were entitled to be considered for regularization, if they have worked uninterruptedly for 10 years and the appointment not being litigious. Therefore, it is for the State Government to decide the cases of the petitioners exercising its discretion, if the petitioners are entitled for regularization in the light of subsequent judgments rendered in the aftermath of UMADEVI.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23. Insofar as it pertains to the submissions of the learned Senior Counsel that the petitioners are not paid salary despite them working, the petitioners would be at liberty to give such representations to the respondents, giving out details of their work performed and on verification of the records, it is for the respondents, the Society or the State to consider those representations in accordance with law, as, if the petitioners are made to work without payment of salary, as is alleged, it would amount to begar and violative of Article 23 of the Constitution of India. Therefore, the State shall consider those grievances of the petitioners.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>26.... It is to be noted that the afore-said was prevalent prior to the recruitment notification dated 27-05-2017. Presently, the recruitment notification is issued on 27-05-2017 and the process of recruitment is handed over to the KPSC. Several posts have been notified and the final select list is also out as is indicated by the KPSC. Therefore, the State shall endeavour to continue its effort of recruitment of teachers in terms of the Cadre and Recruitment Rules and not resort to appointment on contract basis through outsourced agencies by a process of inviting tender.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>27. Insofar as the issue of the regularization of the petitioners as is sought, it is for the State to take a decision on exercise of its discretion with regard to the service of the petitioners in the event they are continuing to work till the notification came to be issued on 27-5-2017. No mandamus can be issued to the Society or the State to consider the cases of the petitioners for regularization of their services, as it involves examination of manifold facts, documents and service particulars of the petitioners. What the petitioners are entitled to, is only an observation for exercise of such discretion by the State.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Writ Petitions are disposed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>The claim of the petitioners for grant of weightage between 2011 and 2013 till the date on which Regulations with regard to  weightage  stood deleted stands dismissed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space:pre\">	</span>The petitioners are not entitled to issuance of any mandamus for regularization of their services.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>In view of disposal of the petitions, all pending applications also stand disposed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e6be17d7265ce91ec982c569cc04c79d.JPG', '842d2eaab44bd4598a7b575a2538a9b3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-25', 1, '', '', '2022-08-24 23:58:41', '2022-08-25 06:30:23');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2115, 'KWuq7E4Zgk6fb2IS9RgvRLg0f', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A teacher is the lamp of knowledge who moulds the life of children. State must stop appointing teachers on contract basis through outsourced agencies by process of inviting tender. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Ashwiniraj R Vs The Secretary Social Welfare Department of Karnataka and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">WP 8442 of 2020 and connected matters decided on 4 July 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice M. Nagaprasanna.  </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">Cluster of these petitions seek to challenge an order dated 4-04-2018 by which the claim of the petitioners in all these petitions for regularization of their services is turned down and have sought a writ in the nature of mandamus directing the respondents to regularize the services of the applicants by declaring the appointments of the petitioners as valid and further seek that their services should be continued till their cases are considered for regularization.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">3. Brief facts leading to the filing of the present petitions, as borne out from the pleadings are, as follows:-</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">Till the year 1977-78 private educational institutions and religious mutts were running residential schools in the State of Karnataka. In the year 1977 the Social Welfare Department started residential schools to the children of tribal community under the name Ashrama schools. In these schools tribal children aged 5 to 10 years were given free education and hostel facilities including food. In the year 1986 Government of India started residential schools in every District in the country in the name and style of ‘Navodaya Model Residential Schools’ for encouraging talented and meritorious children belonging to Scheduled Castes, Scheduled Tribes, Minorities and other Backward Classes residing in rural areas.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">4. In the year 1994-95 Government of Karnataka also started residential schools in rural areas to tap and encourage the talent and identify meritorious children by providing free and quality education. These residential schools were imparting education under different names such as Navodaya Model Residential Schools, Morarji Desai Model Residential Schools, Ekalavya Residential Schools, Kittoor Rani Chennamma Residential Schools and Minority Residential Schools. These residential schools came under the control of the Social Welfare Department, Backward Class Department, Tribal Welfare Department and Education Department. In all these residential schools free education, boarding, lodging, medical facilities and all necessary concomitants for the purpose of imparting education were provided.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">5. The recruitment of teachers into these schools was yet to come about as the Cadre and Recruitment Rules to the aforesaid different residential schools in the matter of recruitment of teaching and non-teaching staff had not been notified. Therefore, the Government from time to time had issued Government orders, circulars and guidelines for appointment of teachers and non-teaching staff on temporary and contract basis. Owing to the purpose for which the schools were established, temporary and contract teachers were appointed from time to time.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">6. In order to bring these residential schools under one entity with regard to control, supervision and management, Government of Karnataka on 06-10-1999 registered a society called the Karnataka Residential Educational Institutions Society (‘the Society’ for short) under the provisions of the Karnataka Societies Registration Act, 1960. All the residential schools aforesaid in different names were brought under the Society. Bye-laws of the Society were framed for management of existing schools and also new schools that were to be set up. It is the Society which later starts new residential schools in addition to existing schools. Even in new residential schools teaching and non-teaching staff were appointed either on temporary or contract basis.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">18. The afore-narrated facts of establishment of Society, approach of the petitioners to this Court earlier and those proceedings as narrated hereinabove not being in dispute need not be reiterated. The issue in the case at hand is whether the petitioners are entitled to the benefit of weightage between the earlier examination and the date on which the Regulations of weightage came to be deleted and further, whether the petitioners are not entitled to regularization.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">20. Insofar as the claim of regularization is concerned, the respondent-Society has placed on record certain orders of appointments appointing several of the petitioners in those petitions. For the remainder of the petitioners who are not appointed, the learned Senior Counsel would again rely on the earlier judgment of the learned single Judge wherein, a specific point was formulated for consideration, whether the petitioners were entitled to absorption and the absorption of others was discriminatory. This Court (supra) while declining to answer the said point in favour of the petitioners had clearly held that having regard to the nature of appointments, length of service and their age, they constitute a different class and the Government did not extend the benefit of absorption of principals and other teachers appointed subsequent to 2004 and 2005 and held that it is for the legislature to determine what categories it would embrace within the scope of legislation.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">22. The judgment in the case of UMADEVI was rendered on 10-04-2006. By then, the petitioners in the case at hand were all appointed albeit through outsourced agencies. Much water has flown after the judgment of the Apex Court in the case of UMADEVI. The subsequent judgments that are rendered would clearly indicate that employees who are appointed on contract basis were entitled to be considered for regularization, if they have worked uninterruptedly for 10 years and the appointment not being litigious. Therefore, it is for the State Government to decide the cases of the petitioners exercising its discretion, if the petitioners are entitled for regularization in the light of subsequent judgments rendered in the aftermath of UMADEVI.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">23. Insofar as it pertains to the submissions of the learned Senior Counsel that the petitioners are not paid salary despite them working, the petitioners would be at liberty to give such representations to the respondents, giving out details of their work performed and on verification of the records, it is for the respondents, the Society or the State to consider those representations in accordance with law, as, if the petitioners are made to work without payment of salary, as is alleged, it would amount to begar and violative of Article 23 of the Constitution of India. Therefore, the State shall consider those grievances of the petitioners.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">26.... It is to be noted that the afore-said was prevalent prior to the recruitment notification dated 27-05-2017. Presently, the recruitment notification is issued on 27-05-2017 and the process of recruitment is handed over to the KPSC. Several posts have been notified and the final select list is also out as is indicated by the KPSC. Therefore, the State shall endeavour to continue its effort of recruitment of teachers in terms of the Cadre and Recruitment Rules and not resort to appointment on contract basis through outsourced agencies by a process of inviting tender.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">27. Insofar as the issue of the regularization of the petitioners as is sought, it is for the State to take a decision on exercise of its discretion with regard to the service of the petitioners in the event they are continuing to work till the notification came to be issued on 27-5-2017. No mandamus can be issued to the Society or the State to consider the cases of the petitioners for regularization of their services, as it involves examination of manifold facts, documents and service particulars of the petitioners. What the petitioners are entitled to, is only an observation for exercise of such discretion by the State.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">ORDER</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(i) Writ Petitions are disposed.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(ii)<span style=\"white-space: pre;\">	</span>The claim of the petitioners for grant of weightage between 2011 and 2013 till the date on which Regulations with regard to  weightage  stood deleted stands dismissed.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(iii)<span style=\"white-space: pre;\">	</span>The petitioners are not entitled to issuance of any mandamus for regularization of their services.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">In view of disposal of the petitions, all pending applications also stand disposed.</span></p>', '9c4d495b1f03f79e7a6e2cab1fab4a2a.jpg', '8560d0627739bd10d95ac0b05030a034.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-26', 1, '', '', '2022-08-25 01:06:12', '2022-08-26 13:52:14'),
(2117, 'aQfbAWjXzxlqzZvt6ms7S70qw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'MCOC Act. Confessions made before the Superintendent of Police shall not be construed as the approval of the contents or voluntary nature of the alleged confessions. Supreme Court directs.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Zakir Abdul Mirajkar Vs The State of Maharashtra and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1125 of 2002 decided on 24 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dhananjaya Y Chandrachud and Justice Surya Kant.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The prosecution alleges that the appellants are members of an organized\r\ncrime syndicate which has engaged in a systematic course of activities for\r\ncheating members of the public by conducting the ?Mumbai Matka‘. To\r\nexplain ?matkas‘ in simple terms, those who wish to gamble place bets on\r\nnumbers / playing cards. At the end of the cycle, the results are to be\r\ndeclared based on a random draw of numbers / playing cards and those\r\nwho correctly guess the winning digits / playing cards win while the others\r\nlose. Instead of declaring the winning digits on the basis of a random draw,\r\nthe organizers of the Mumbai Matka are alleged to identify the number on\r\nwhich the least bets are placed and declare that to be the winning digit. This\r\nis allegedly done in order to ensure that the pay-out is minimal and the profit\r\nis as large as possible.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Salim Mulla is alleged to be a bookie who accepts bets for the Mumbai\r\nMatka. It is the prosecution‘s case that he would transfer the money he\r\nreceived through the Mumbai Matka to Rakesh Agarwal and Manish\r\nAgarwal if he anticipated that he would be unable to repay in the event that\r\nthe number on which he accepted the highest number of bets was declared\r\nthe winning number. Rakesh Agarwal and Manish Agarwal would allegedly\r\naccept the risk and discharge the obligation to pay the gamblers if that\r\nparticular number was indeed declared the winning number. Further, they\r\nwould in turn allegedly transfer the money they received from Salim Mulla to\r\nSamrat Korane, the appellant in SLP (Criminal) No. 3722 of 2020, and Zakir <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Mirajkar, the appellant in SLP (Criminal) No. 3213 of 2020. The latter two,\r\nalong with Sharad Korane, the appellant in SLP (Criminal) No. 3629 of 2020\r\nwould assume the risk and transfer the money once again to Viral Savla, the\r\nappellant in SLP (Criminal) No. 3915 of 2020 and Jayesh Savla, the\r\nappellant in SLP (Criminal) No. 4170 of 2020, amongst others. It is alleged\r\nthat in this fashion, the petitioners and various others are members of an\r\norganized crime syndicate, of which the lynchpin is Salim Mulla. The main\r\norganizers of the Mumbai Matka are alleged to be Prakash Savla, the\r\nappellant in SLP (Criminal) No. 3943 of 2020, his son Viral Savla and his\r\nbrother Jayesh Savla. Finally, Rajendra Dave, the appellant in SLP\r\n(Criminal) No. 6034 of 2022 is alleged to assist Salim Mulla and the Savla\r\nfamily by distributing protection money to various gangsters and purchasing\r\nproperty from the proceeds of the illegal gambling business. According to\r\nthe prosecution, the proceeds from the matka business are used to finance\r\ncriminal gangs and underworld dons.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Based on the submissions which have been canvassed on behalf of the\r\nappellants, two questions arise for determination:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>a. Whether a confession recorded by an Addl. SP under Section 18\r\nMCOCA can be proved as against the accused; and\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>b. Whether the provisions of MCOCA have been validly invoked. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. The outcome of these appeals depends on the construction of the expression\r\n?before a police officer not below the rank of the Superintendent of Police?. The\r\nprovisions contained in Section 18(1) are an exception to the general principle\r\nembodied in Section 25 of the Evidence Act and must be strictly construed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. The issue as to whether a confession recorded by an Addl. SP is a confession\r\nmade ?before a police officer not below the rank of the Superintendent of\r\nPolice? was raised before the High Court. The submission of the appellants was\r\nthat since Section 18 contemplates the recording of confessions by a police\r\nofficer not below the rank of SP, almost all the confessions in connection with\r\nthe present FIR were inadmissible, having been recorded by an Addl. SP. It\r\nappears from the judgment of the High Court that the Special Public\r\nProsecutor, while responding to this submission, placed reliance on para 25(2) <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the Police Manual to urge that the Addl. SP (as the High Court noted the\r\nsubmission) ?is in the same position as the SP in the area for which he is\r\nappointed?. The High Court rejected the appellants‘ submission in the absence\r\nof a challenge to para 25(2) of the Police Manual</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">32. The reliance on para 25(2) of the Police Manual by the Special Public\r\nProsecutor was misconceived for more than one reason. The High Court and\r\nthis Court, in appeal, have been called upon to interpret the provisions of a\r\nspecial Act, the MCOCA. Section 18(1) MCOCA does not envisage a specific\r\ndelegation of authority to a police officer ?not below the rank of the SP? for the\r\npurpose of recording a confession. The admissibility of the confession is\r\ndetermined by whether it has been recorded by a police officer ?not below the\r\nrank of the SP? and by whether the statutory safeguards have been complied </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">with. Section 25 MCOCA gives overriding effect to the provisions of the Act and\r\nto any rules made under it as well as to orders issued under a rule\r\nnotwithstanding anything inconsistent contained in any other law for the time\r\nbeing in force or any instrument having the force of law.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. Section 18(1) does not interpose an additional requirement of a specific\r\nauthorization by the state government for recording a confession under the\r\nMCOCA, the requirement of the statute being that the police officer who\r\nrecords such confession is not below the rank of SP. The effort on the part of\r\nthe Special Public Prosecutor to justify the authority of the Addl. SP to record a\r\nconfession under Section 18(1) on the basis of the provisions of para 25(2) of\r\nthe Police Manual was therefore fraught with error. As a matter of fact, Mr\r\nThakare, learned senior counsel appearing on behalf of the state is therefore\r\nright in submitting that there is no question of importing the requirement of an\r\nauthorization into Section 18(1) by reading it together with para 25(2) of the\r\nPolice Manual. The High Court was led into relying on the Police Manual by the\r\nsubmission of the public prosecutor. A submission which is made on a question\r\nof law by counsel appearing for a party (in this case, the state) cannot bind that\r\nparty or for that matter, preclude this Court from correctly interpreting the law.\r\nDuring the course of the submissions, the provisions of Section 8 of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Maharashtra Police Act 1951 have been adverted to</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>35. The argument of the appellants is that the enabling power in sub-section (2) of\r\nSection 8 has not been exercised by the State government by empowering the\r\nAddl. SP to exercise the power conferred on an SP under Section 18(1) of the\r\nMCOCA misses the crux of the matter. The MCOCA is a special Act enacted\r\nwith an overriding provision in Section 25. The tenability of the submission that\r\nan Addl. SP does not fit the description of an officer not below the rank of SP\r\ncannot be determined by reading into the MCOCA provisions for authorization\r\ncontained either in the Police Manual (para 25(2) as noticed above) or in\r\nanother statute (Section 8(2) of the Police Act). The answer to the challenge\r\nwhich was raised before the High Court and on behalf of the appellants before\r\nthis Court must turn on the interpretation of the provisions of Section 18(1)\r\nMCOCA itself. Section 18(1) renders admissible a confession made by a\r\nperson before a police officer ?not below the rank? of the SP.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36. Mr Amit Desai, learned senior counsel placed reliance on a judgment of a\r\nSingle Judge of the Bombay High Court dated 1 September 1977 in State of\r\nMaharashtra v. Keshav Bhaurao Mulik,\r\n20 where the respondent had been\r\nacquitted by the JMFC Solapur on the charge of having committed offences\r\npunishable under Sections 4 and 5 of the Gambling Act. The prosecution was\r\nbased on the allegation that one of the accused was using a house in Solapur\r\nas a common gaming house for accepting matka bets. This house was raided\r\nby certain officers led by the Addl. SP of that area; no warrant was obtained\r\nbefore the raid was effected. The prosecution argued that a warrant was not <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">necessary as the Addl. SP was empowered to conduct the raid. In exercise of\r\nthe power conferred by Section 8(2) of the Police Act, the Government of\r\nMaharashtra issued a notification on 24 November 1971 empowering the Addl.\r\nSP, Solapur to exercise and perform in Solapur district ?all the powers,\r\nfunctions and duties to be exercised and performed by a District\r\nSuperintendent of Police under said Act?. The Single Judge of the High Court\r\nheld that by virtue of this order, the Addl. SP was only empowered to exercise\r\nthe powers, functions and duties of an SP under the Police Act and not under\r\nany other law for the time being in force. Section 6 of the Gambling Act\r\nstipulated that it shall be lawful for a police officer not below the rank of a SubInspector and either empowered by general order in writing or authorized in\r\neach case by a special warrant issued by the Commissioner of Police to enter\r\nany house, room, or place which he has reason to suspect was being used as a\r\ncommon gaming house, to conduct a search. A similar provision was contained\r\nfor areas other than those within the jurisdiction of a Commissioner of Police.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>56. We have already noted earlier that Section 18(1) MCOCA does not\r\ncontemplate any specific authorisation of a police officer not below the rank\r\nof SP for the purpose of recording confessions. The stand of the State\r\nGovernment with reference to the provisions of clause 25(2) of the Police\r\nManual and Section 8 of the Maharashtra Police Act would therefore have to\r\nbe read subject to the analysis in the earlier part of this judgment.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>69. Rule 7(1) of the SC/ST Rules indicates that other than the State\r\nGovernment, only those persons designated as the Director General of\r\nPolice or as the SP may appoint an investigating officer. Unlike Section\r\n18(1) MCOCA, Rule 7(1) does not provide for officers of a rank equivalent to\r\nthe Director General of Police or to the SP to appoint investigating officers.\r\nIn contrast, Section 18(1) MCOCA clearly vests those officers who are of the\r\nsame rank as the SP with the power to record confessions, in addition to\r\nvesting that power with the SP. This is clearly evident from the use of the\r\nexpression ?not below the rank of Superintendent of Police?. The SC/ST <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rules are concerned with the designation of the competent authority while\r\nMCOCA is concerned with the rank of the relevant officer. Hence, the\r\nappellants cannot rely on Hardial Singh (supra) to argue that an Addl. SP is\r\nnot the same rank as an SP.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>70. It is the appellants‘ case that the provisions of the MCOCA have not been\r\nvalidly invoked. Their arguments (which have been noted in the segment on\r\nsubmissions) are addressed below.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>a. The approval order under Section 23(1)(a) MCOCA is with respect to\r\nthe offence and not with respect to the offender.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>72. The order of approval under Section 23(1)(a) MCOCA need not name every\r\naccused person at the outset. Often, limited information is available to the\r\ninvestigating authorities at the time of recording information about the\r\ncommission of an offence. The involvement of persons other than those\r\nnamed initially may come to light during the course of investigation by the\r\npolice. In fact, the very purpose of an investigation is to determine whether a\r\ncrime has been committed and if so, to shed light on the details of the crime\r\nincluding the identity of the perpetrators. This is true of every crime but\r\nespecially true in the case of organized crime, where an organized crime\r\nsyndicate may consist of scores of persons involved in unlawful activities in\r\ndifferent capacities. Section 23(1)(a) MCOCA speaks of recording\r\ninformation about the commission of an offence of organized crime, and not\r\nof recording information about the offender. The competent authority may\r\nrecord information under Section 23(1)(a) once it is satisfied that an\r\norganized crime has been committed by an organized crime syndicate.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>b. The appellants may be charged with some offences punishable under\r\nMCOCA in relation to the charge of illegal gambling</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>76. The appellants argued that gambling is punishable with a maximum\r\nsentence of 2 years and does not, therefore, fall within the scope of MCOCA\r\n(which requires the commission of a crime punishable with imprisonment of\r\n3 years or more). However, not all the offences punishable under MCOCA\r\nhave this requirement</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>77. From the analysis above, the appellants‘ submission that the allegation of\r\nengaging in illegal gambling would not sustain the invocation of the penal\r\nprovisions of Section 3(2) MCOCA is simplistic. Although gambling may\r\nnot, by itself, constitute an organized crime, it may be the route through\r\nwhich the accused are abetting the commission of organized crime. The\r\nquestion of whether the appellants are in fact abetting organized crime in\r\nthis manner, is to be determined at the stage of trial. Similarly, the question\r\nof whether offences under the IPC would attract MCOCA in the present\r\ncase is to be determined at the stage of trial and depends on the facts and\r\ncircumstances of each case. The observation in Lalit Somdatta Nagpal\r\n(supra) that some degree of coercion or violence is required to charge an\r\naccused under provisions of MCOCA must be read together with Section\r\n2(1)(e) which recognizes that ?other unlawful means? may be used while\r\ncommitting organized crime, in addition to coercion and violence.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>c. More than one charge-sheet is not required to be filed with respect to\r\neach accused person</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The appellants have argued that in the preceding ten years, more than one\r\ncharge-sheet has not been filed in respect of each of them. This submission\r\ndoes not hold water. It is settled law that more than one charge sheet is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">required to be filed in respect of the organized crime syndicate and not in\r\nrespect of each person who is alleged to be a member of such a syndicate.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>79. Other courts, too, have held that persons who are alleged to be members of\r\nan organized crime syndicate need not have more than one charge-sheet\r\nfiled against them in an individual capacity. Rather, charge-sheets with <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respect to the organized crime syndicate are sufficient to fulfil the condition\r\nin Section 2(1)(d).\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>80. For the above reasons, we find no merit in the appeals. The appeals shall\r\nstand dismissed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 81. Pending application(s), if any, stand disposed of</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6868c3df59b73c42c458fac2f7bb8563.png', '63d9b690204828431177a42233473a5f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-01', 1, '', '', '2022-08-25 17:38:30', '2022-09-01 06:51:24'),
(2118, 'Fgnnsl7mwADkLZ0deCfAMvDWd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Principle that when compound interest is not specified in a Statute, interest payable ought to be construed on simple interest basis and not on compound interest basis does not apply in case of Change in Law events. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Uttar Haryana Bijli Vitran Nigam Ltd and another Vs Adani Power (Mundra) Limited and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 7129 of 2021 decided on 24 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice N.V. Ramana, Justice Krishna Murari and Justice Hima Kohli.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. It may be stated at the outset that the scope of the present appeal\r\nis restricted to the decision of the Appellate Tribunal of granting carrying\r\ncost interest on compounding basis in favour of the respondent No. 1 –\r\nAdani Power from the date on which the Change in Law event took\r\nplace i.e. 29th January, 2014, till the date of actual payment of the\r\namount determined by the Central Commission. Stated differently, while\r\nthe appellants are not disputing grant of interest to the respondent No. 1\r\n– Adani Power by way of carrying cost from the date on which the\r\nChange of Law event took place till the actual payment of the amount\r\ndetermined by the Central Commission, their grievance is that the\r\nAppellate Tribunal has not just permitted carrying cost on simple interest\r\nbasis, but has imposed interest on carrying cost or what is commonly\r\nknown as interest on interest (compound interest) on carrying cost.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. To contextualize the aforesaid dispute, a brief conspectus of the\r\nrelevant facts of the case may be outlined. The respondent No. 1 –\r\nAdani Power is a power generating company that has set up a 4620 MW\r\n(comprising of four units of 330 MW and five units of 660 MW), coal fired\r\npower plant in Mundra, Gujarat. The appellants are the distribution\r\nlicensees that are supplying electricity to the consumers in the State of\r\nHaryana. On 07th August, 2008 the appellants entered into two Power\r\nPurchase Agreements4\r\n with the respondent No. 1 – Adani Power for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">procurement of contracted capacity of 1424 MW from the generating\r\nunits 7, 8 and 9 established at Mundra, Gujarat. In the year 2010, on\r\naccount of Environment Clearance dated 20th May, 2010, given by the\r\nMinistry of Environment and Forests, Union of India, a Change in Law\r\nevent took place as the respondent No. 1 – Adani Power had to incur\r\nadditional costs on installing Flue Gas Desulfurization5\r\n unit. On 17th\r\nJuly, 2014, the respondent No. 1 – Adani Power filed a petition before\r\nthe Central Commission for adjudication of compensation on account of\r\ncertain Change in Law events including installation of the FGD. By order\r\ndated 06th February, 2017, the Central Commission allowed\r\ncompensation only for certain Change in Law events but disallowed the\r\nclaim for carrying cost raised by the respondent No. 1 – Adani Power.\r\nLiberty was however granted to the respondent No. 1 – Adani Power to\r\nfile a separate petition before the Central Commission for the FGD claim\r\nalong with requisite information and documents.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. We have heard the arguments advanced by the counsel for the\r\nparties and perused the relevant provisions of the PPAs. As noted\r\nabove, the appellants have not raised any dispute with regard to grant of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">interest to the respondent No. 1 – Adani Power by way of carrying cost\r\nfrom the date on which the Change in Law event took place till the date\r\nthe amount was determined as payable to respondent No. 1 – Adani\r\nPower in terms of the order dated 28th March, 2018, passed by the\r\nCentral Commission. The only issue that has arisen for our consideration\r\nis whether the appellants are liable to pay simple interest or compound\r\ninterest on the carrying cost.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. The relevant Articles of the PPAs cited before us are Article 11,\r\nthat deals with billing and payment and Article 13, that deals with\r\nChange in Law. We are more specifically concerned with Articles 11.3.4,\r\n11.8.1 and 11.8.3 that have been cited by learned counsel for the\r\nappellants to urge that only Late Payment Surcharge (LPS) is payable\r\nby the appellants (procurer) to the respondent No. 1 – Adani Power\r\n(seller) at the rate mentioned in Article 11.3.4, but not beyond that.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">16. It is clear that the restitutionary principles encapsulated in Article\r\n13.2 would take effect for computing the impact of Change in Law. We\r\nsee no reason to interfere with the impugned judgment, wherein it has\r\nbeen held by the Appellate Tribunal that the respondent No. 1 – Adani\r\nPower had started claiming Change in Law event compensation in\r\nrespect of installation of FGD along with carrying cost, right from the\r\nyear 2012 and that it has approached several fora to get this claim\r\nsettled. The respondent No. 1 – Adani Power finally succeeded in getting\r\ncompensation towards FGD only on 28th March, 2018, but the carrying\r\ncost claim was denied. The relief relating to carrying cost was granted to\r\nthe respondent No. 1 – Adani Power by the Appellate Tribunal vide order\r\ndated 13th April, 2018 which was duly tested by this Court and upheld on\r\n25th February, 20196\r\n. Once carrying cost has been granted in favour of\r\nthe respondent No. 1 – Adani Power, it cannot be urged by the\r\nappellants that interest on carrying cost should be calculated on simple </span><span style=\"font-size: 12pt;\">interest basis instead of compound interest basis. Grant of compound\r\ninterest on carrying cost and that too from the date of the occurrence of\r\nthe Change in Law event is based on sound logic. The idea behind\r\ngranting interest on carrying cost is not far to see, it is aimed at\r\nrestituting a party that is adversely affected by a Change in Law event\r\nand restore it to its original economic position as if such a Change in\r\nLaw event had not taken place.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">17. In the instant case, the respondent No. 1 – Adani Power had to\r\nincur expenses to purchase the FGD and install it in view of the terms\r\nand conditions of the Environment Clearance given by the Ministry of\r\nEnvironment and Forests, Union of India, in the year 2010. For this, it\r\nhad to arrange finances by borrowing from banks. The interest rate\r\nframework followed by Scheduled Commercial banks and regulated by\r\nthe Reserve Bank of India mandates that interest shall be charged on all\r\nadvances at monthly rests. In this view of the matter, the respondent No.\r\n1 – Adani Power is justified in stating that if the banks have charged it\r\ninterest on monthly rest basis for giving loans to purchase the FGD, any\r\nrestitution will be incomplete, if it is not fully compensated for the interest\r\npaid by it to the banks on compounding basis. We are of the opinion that\r\ninterest on carrying cost is nothing but time value for money and the only\r\nmanner in which a party can be afforded the benefit of restitution in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">every which way. In the facts of the instant case, the Appellate Tribunal\r\nwas justified in allowing interest on carrying cost in favour of the\r\nrespondent No. 1 – Adani Power for the period between the year 2014,\r\nwhen the FGD was installed, till the year 2021. There was no justification\r\nfor the Central Commission to have excluded the period between 2014\r\nand 2018 and grant relief from the date of the passing of the order i.e.,\r\nfrom 28th March, 2018 to 2021; nor is there any logic to such a\r\nsegregation of time lines, particularly when the respondent No. 1 – Adani\r\nPower was prompt in raising a claim on the appellants and pursuing its\r\nlegal remedies.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>18. We are not persuaded by the submission made on behalf of the\r\nappellants that since no fault is attributable to them for the delay caused\r\nin determination of the amount, they cannot be saddled with the liability\r\nto pay interest on carrying cost; nor is there any substance in the\r\nargument sought to be advanced that there is no provision in the PPAs\r\nfor payment of compound interest from the date when the Change in\r\nLaw event had occurred.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">19. The entire concept of restitutionary principles engrained in Article\r\n13 of the PPAs has to be read in the correct perspective. The said\r\nprinciple that governs compensating a party for the time value for money,\r\nis the very same principle that would be invoked and applied for grant of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">interest on carrying cost on account of a Change in Law event.\r\nTherefore, reliance on Articles 11.3.4 r/w 11.8.3 on the part of the\r\nappellants cannot take their case further. Nor does the decision in Priya\r\nVart’S Case have any application to the facts of the present case as the\r\nsaid case relates to payment of compensation under the Land\r\nAcquisition Act and the interest that would be payable in case of delayed\r\npayment of compensation.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>20. In view of the aforesaid discussion, the impugned judgment and\r\norder dated 12th August, 2021 passed by the Appellate Tribunal is upheld\r\nand the present appeal is accordingly dismissed as meritless.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e1eed7aaa4e22d867a0c610586a75e2f.jpeg', '0e1c53ac4c2bc42af7d87c81fca4faf6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-26', 1, '', '', '2022-08-25 18:03:22', '2022-08-26 06:30:28');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2119, 'i7tjBKmKtzQt0PvQ9zMSKPNK7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Award passed by the arbitrator under the NHAI Act cannot be enforced by way of writ under Article 226 of the Constitution without resorting to execution proceedings. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>National Highways Authority of India Vs Sheetal Jaidev Vade and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5256 of 2022 decided on 24 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 01.04.2022 passed by the High Court of Judicature of Bombay at Aurangabad in Writ Petition No.144 of 2021 by which in a writ petition filed by the respondents herein – original land owners, in exercise of powers under Article 226 of the Constitution of India, the High Court has directed the appellant – NHAI to deposit the entire compensation amount as awarded by the learned Arbitrator and thereafter permitting the original land owners – original writ petitioners to withdraw the amount as mentioned in paragraph 4, the NHAI has preferred the present appeal.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. That the land of the respondents herein – original land owners – original writ petitioners came to be acquired by the NHAI under the provisions of the NHAI Act. That the amount of compensation came to be enhanced by the learned Arbitrator. The award passed by the learned Arbitrator has been challenged by the NHAI by availing the statutory remedy under Section 34 of the Arbitration Act to the extent of the enhanced amount. That as there was no stay of the award passed by the learned Arbitrator in a proceedings under Section 34 of the Arbitration Act, the respondent herein – original land owners instead of filing the execution petition to execute the award declared by the learned Arbitrator enhancing the amount of compensation, filed the writ petition before the High Court and prayed for a Writ of Mandamus and/or appropriate directions/orders directing the NHAI to deposit the amount with the Competent Authority, Land Acquisition and Sub­Divisional Officer in pursuance of the award dated 12.06.2018. By the impugned judgment and order the High Court has disposed of the said writ petition by directing the appellant – NHAI to deposit the entire amount along with interest with the Land Acquisition Authority and thereafter has directed the original writ petitioners – land owners to withdraw 50% of the amount along with interest on filing an affidavit of undertaking that if in the litigation journey, an adverse order is passed against them and they are found to have withdrawn excess amount, the said amount would be re­deposited with the authority. So far as the remaining 50% of the amount with interest is concerned, the High Court has permitted the original writ petitioners – original land owners to withdraw 25% of the amount by tendering a solvent surety and the remaining 25% of the 4 amount to be deposited with the competent authority with a liberty to invest the said amount in a fixed deposit account in any Nationalized Bank. Feeling aggrieved and dissatisfied with the impugned order passed by the High Court, the NHAI has preferred the present appeal.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6.2 Apart from the fact that the award dated 12.06.2018 has been challenged by the NHAI by initiating proceedings under Section 34 of the Arbitration Act which are reported to be pending, the High Court ought not to have entertained the writ petition under Article 226 of the Constitution of India seeking the reliefs to execute the award passed by the learned Arbitral Tribunal/Court, when the award passed by the learned Arbitral Tribunal/Court is to be executed by initiating an execution proceeding before the concerned Executing Court. But, by passing the impugned order/directions the High Court has virtually converted itself into Executing Court. Therefore, once the original writ petitioner was having an efficacious, alternative remedy to execute the award passed by the learned Arbitral Tribunal/Court, by initiating an appropriate execution proceeding before the competent Executing Court, the High Court ought to have relegated the original writ petitioners to avail the said remedy instead of entertaining the writ petition under Article 226 of the Constitution of India which was filed to execute the award passed by the Arbitral Tribunal/Court. If the High Courts convert itself to the Executing Court and entertain the writ petitions under Article 226 of the Constitution of India to execute the award passed by the Arbitral Tribunal/Court, the High Courts would be flooded with the writ petitions to execute awards passed by the learned Arbitrator/Arbitral Tribunal/Arbitral Court.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. We disapprove the entertaining of such writ petitions under Article 226 of the Constitution of India to execute the award passed by the learned Arbitral Tribunal/Court, without relegating the judgment creditor in whose favour the award is passed to file an execution proceeding before the competent Executing Court.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">7.1 In view of the above discussion, we would have set aside the impugned judgment and order passed by the High Court on the aforesaid ground alone. However, taking into consideration the similar order passed by this Court in the case of Saraswatibai Chandrakant Shinde (supra), we deem it appropriate to dispose of the present proceedings/appeal with the following directions:</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i) The NHAI shall deposit 50 per cent of the compensation amount, as awarded by the Arbitral Court, with the Executing Court within a period of four weeks. The said amount shall be released to the land owners unconditionally. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii) The learned District Court, before whom the proceedings under Section­34 of the Arbitration Act are pending, shall make an endeavour to decide such proceedings within a period of six months from the next date of hearing before the said court.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iii) The balance amount of compensation as per the Award to be passed under Section 34 of the Arbitration Act shall be deposited by the NHAI with the Executing Court within four weeks after such determination. The said amount shall also be released by the Executing Court in favour of the land owners subject to the rights and remedies available to the parties in law.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>With these observations and directions, the Appeal is disposed of. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Pending application(s), if any, shall stand disposed of </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4c1989fdf77ec4a6e9f59eba668dbf61.jpeg', 'f1ddd2e708f7b3f9c2674ab043a8e935.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-26', 1, '', '', '2022-08-25 18:21:10', '2022-08-26 10:28:11'),
(2120, 'EVqM3RT2gyDv7WkxmrF2nOIff', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Provisional release of perishable goods under the Customs Act is permissible even during pendency of appeal and not confined to proceedings pending before the adjudicating officer. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pavan Enterprises Vs The Chief Commissioner of Customs Bengaluru and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Wirt Petition 15906 of 2022 decided on 18 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.R. Krishna Kumar.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned Senior counsel for the petitioner submits that pursuant to the order dated 10.03.2021 passed by the 2nd respondent, the petitioner preferred a statutory appeal before the appellate authority, which allowed the same vide order dated 24.08.2021 as can be seen from Annexure-R. It is contended that subsequently, since the oral requests made by the petitioner seeking release of the seized goods were not complied with by the respondents, petitioner submitted a representation dated 03.03.2022 to the respondents calling upon them to release the goods in terms  of  the  order  dated  24.08.2021  passed  by  the appellate authority. Since the respondents did not take necessary steps in this regard, even thereafter, the petitioner approached this Court in W.P.No.6016/2022, which was disposed of by this Court vide order dated 05.04.2022.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 3.1 It is the grievance of the petitioner that subsequent to disposal of the aforesaid petition by this Court, the petitioner submitted an application dated 06.04.2022 and one more representation dated 22.04.2022 calling upon the respondents to pass an order of provisional release of goods under Section 110A of the Customs Act, 1962 and the same having been rejected by the respondents by passing the impugned order at Annexure-A dated 08.06.2022, the petitioner is before this Court by way of the present petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 4. Per contra, learned counsel for the respondents –revenue would support the impugned order and submits that there is no merit in the petition and the same is liable to be dismissed. It is also submitted that as noticed by this Court  in  W.P.No.6016/2022,  the  respondents  have preferred an appeal before the Tribunal and since the same is pending, the question of adjudicating authority directing provisional release of the goods does not arise.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. As can be seen from the aforesaid order passed by this Court, this Court has categorically granted liberty in favour of the petitioner to file an application for provisional release of the imported goods and by directing expedited decision on such application, since the subject goods are perishable in nature.  In the light of the specific direction issued by this Court and liberty reserved in favour of the petitioner to file an application under Section 110A of the Customs Act, the respondents clearly misdirected itself in refusing to pass an order of release on the ground that the adjudicating authority had already passed an order against the petitioner by relying upon the order dated 31.12.2021 referred to in paragraph-3 of the impugned order, without appreciating that the same does not pertain to the adjudication proceedings in relation to the petitioner, since the same had already culminated in the order at Annexure-P dated 10.03.2021 itself, much prior to 31.12.2021. The respondents also failed to consider and appreciate that aggrieved by the aforesaid order at Annexure-P dated 10.03.2021, petitioner had preferred an appeal before the appellate authority, which had allowed the same vide final order dated 24.08.2021. Further, as noticed by this Court, aggrieved by the said order at Annexure-R dated 24.08.2021, the respondents – revenue had preferred an appeal before the Tribunal; however, there was no interim order passed by the Tribunal in the said appeal preferred by the revenue. Under these circumstances, I am of the considered opinion that the respondents clearly erred in rejecting the application filed by the petitioner under Section 110A of the Customs Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 8. It is also relevant to state that though Section 110A of the Act refers to the proceedings before the adjudicating officer, in the light of the undisputed fact that the appeal had been preferred by the petitioner and a further appeal preferred by the respondents are merely continuation of the original adjudication proceedings, the respondents clearly erred in coming to the conclusion that the provisional release under Section 110A of the Act is permissible only when the proceedings are pending before the adjudicating officer and as such, the impugned order deserves to be quashed by this Court also.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space:pre\">	</span>Petition is hereby allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space: pre;\">	</span>The respondents are directed to release the subject goods in favour of the petitioner within a period of one week from the date of receipt of a copy of this order, subject to the petitioner complying with the requirement of Section 110A of the Customs Act, 1962. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv)<span style=\"white-space: pre;\">	</span>It is made clear that the release of the subject goods in favour of the petitioner pursuant to this order, would be without prejudice to the rights and contentions of the parties in the appeal preferred by the revenue and the same would be subject to final outcome of the appeal. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(v)<span style=\"white-space: pre;\">	</span>All rival contentions urged by the parties in the appeal are kept open and no opinion is expressed on the same.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4ae8666f8a01a72d4c4aa028a649d1fb.JPG', 'a9771a8e2e28ef06ebc84482394fcab3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-27', 1, '', '', '2022-08-26 00:30:13', '2022-08-27 13:54:54'),
(2121, 'jro3AotRQqjnlaHP7rkYvpR9i', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Transfer order, after the period of general transfers without showing place of posting, is not permissible. Place of transfer must be to a vacant post. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Murthy Halaiah Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 14860 of 2022 decided on 18 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Sunil Dutt Yadav.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The only point that requires to be considered is as to whether the order of transfer after the period of general transfers could be upheld where no order of posting has been shown as regards the petitioner. The legal position insofar as not showing order of posting of an employee in whose place another employee has been placed, has been considered in detail by the Division Bench of this Court in M.Arun Prasad Vs. The Commissioner of Excise and Others. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. It is clear that the position of law is settled that passing an order of transfer without showing place of posting would suffer from legal malafide. This position is reiterated by the Division Bench of this Court in the latest decision in Mahiboob Sab Vs. The State of Karnataka and Others2. It is also to be noticed that this is the stand of  the  Government  as  is  noticed  from  the  Circulars of 18.01.2017 and 27.03.2017. In fact, the Circular of 27.03.2017 further stipulates that reasons must be recorded in writing for not showing posting to any Government Servant and such reasons should be \"compelling administrative reasons like non availability of post due to abolishment/up-gradation/down-gradation, shifting in lieu of suspension, requirement of Government Servant to perform urgent confidential work in a post, unsuitability or inefficiency to work in the existing vacancy or for being utilized against temporary and leave vacancy etc., which are only illustrative but not exhaustive\". Procedure is also shown to review orders of transfer by the Head of the Department where person displaced is not shown posting recording reasons in writing. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. Admittedly, in the present case, none of the procedures are followed. Despite the observations by the Division Bench  of this Court  in  M.Arun Prasad\'s case (supra) and also the Government Circulars referred to above, time and again orders of transfer are being passed without showing places for posting. In terms of the order in M.Arun Prasad\'s case (supra), vacancy will not arise until an employee in whose place another employee has been transferred, is shown a place of posting. The Government to ensure that such instances should not repeat and strict compliance of Circular dated 27.03.2017 as well as directions of the Division Bench of this Court in M.Arun Prasad\'s case (supra).<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. It is also necessary to note that transfer is made in the month of December. Even as per the records submitted by the Government, as per note on 01.10.2021 it is observed that if transfers are made after the period of general transfers, no request for transfers should be entertained or orders made unless there is a vacant place. In the present case, as stated earlier, there was no vacant place while considering the representation of the respondent No.6 to be transferred and posted in the place of the petitioner. It is also noticed that the case of respondent No.6 is on the basis of the letter of the Member of the Legislative Assembly. Nevertheless, procedure requires to be followed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. Accordingly, on two grounds i.e., not showing an order of posting for a period of more than six [6] months and on the ground that no transfer must be made except to a vacant post after the period of general transfers, while noticing that the transfer is made in December 2021 as noticed in the proceedings of transfer, the petition is allowed. The impugned order dated 23.12.2021 at Annexure - A is set aside. The parties are directed to be placed in the position prior to the impugned order. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>It is only expected that the State will ensure strict compliance with its own Circular of 27.03.2017 as well as directions of the Division Bench passed in M.Arun Prasad\'s case (supra) and the observations in Mahiboob Sab\'s case (supra).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a0667f73dd85935f640edd3163c2602e.JPG', '47900f4cdaa9ce962d2fc49f2f5f7ef9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-26', 1, '', '', '2022-08-26 16:26:40', '2022-08-27 17:09:09'),
(2122, 'Vka6Eem0119oYUTM8ALw2wvLS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Mere possibility of \'grave consequences\' is no ground to quash proceedings under Section 26 of the Competition Act, 2002\'\'. Karnataka High Court imposes cost of Rs. 10 lakhs on Intel for abusing process of Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Intel Technology India Pvt Ltd and others Vs Competition Commission of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 50727 of 2019 decided on 23 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petitioners are knocking at the doors of Writ Court for assailing the order dated 09.08.2019 made by the Competition Commission of India (hereafter ‘Commission’) whereby in exercise of powers under Section 26(1) of the Competition Act, 2002 (hereafter ‘2002 Act’) an investigation as to whether their warranty policy has (i) potentially resulted in denial of market access to parallel importers & resellers of Boxed Micro-Processors for Desktop and Laptop PCs & (ii) the risk of higher pricing for the said articles in India</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>BRIEF FACTS OF THE CASE:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (A)<span style=\"white-space:pre\">	</span>CASE OF THE PETITIONERS: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) The 1st petitioner is a private limited company incorporated in 1997 under the provisions of erstwhile Companies Act, 1956. It is stated to be an ‘indirectly held, wholly owned subsidiary of 2nd petitioner’ which is based in the United States of America. They are inter alia engaged in the business of manufacturing integrated circuits for computing & communications. Their products include microprocessors, chipsets, motherboards, wireless components and a range of software products. 1st Petitioner states that it does not manufacture or sell any microprocessors or other products in India but only provides certain ‘marketing support services’ for such products as well as for the research & development (R&D) activities. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) The 1st Petitioner-Intel on 25.04.2016 restructured its ‘warranty policy’ for boxed microprocessors in India to the effect that “…only Intel products sold by Intel Authorized Distributors in India and purchased in India are eligible for warranty sale within India…For Intel products purchased from other sources, please contact your purchases for warranty services…”. This, it claims to have done in the light of Hon’ble Delhi High Court decision in KAPIL WADHWA vs. SAMSUNG ELECTRONICS CO. LTD1 and Commission’s decision in ASHISH AHUJA vs. SNAPDEAL. It is the case of the petitioners that consistent with their new policy, no warranty is given for Intel Products that are not sold by Intel Authorized Distributors in India.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(B)<span style=\"white-space:pre\">	</span>CASE OF THE RESPONDENTS:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) The case of 2nd Respondent: The 2nd Respondent is a company (Matrix Info Systems Pvt. Ltd.) incorporated in 2015 under the provisions of the Companies Act, 2013. It is also engaged in the import & sale of information technology products namely storage solutions (RAM & hard disks), security hardware (CCTV cameras), computers (desktops & laptops) & display solutions (TFT, computer monitors). Between March 2017 and January 2018, it imported about 4000 ‘boxed’ microprocessors of Intel claiming warranty in five instances for as many as 34 units of microprocessors. In three of the five instances, claims for warranty were stated to have been ‘raised in Dubai, UAE and the same were honored’. However, in so far as the claim for warranty in India is concerned, the 1st petitioner informed the respondent to contact the point of purchase, in view of its revised ‘warranty policy’ of April 2016. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) The 2nd Respondent lodged the information with the Commission on 11.02.2019 u/s 19(1)(a) of the 2002 Act alleging that petitioner’s ‘warranty policy’ is in contravention of Section 3 & 4 of the 2002 Act in as much as they were refusing to provide the warranty in India for boxed microprocessors which are imported from authorized sources abroad but not those sourced from the Intel authorized dealers in India. This came to be registered by the Commission as Case No.5/2019 between  MATRIX  INFO  SYSTEMS  PVT.  LTD  vs.  INTEL CORPORATION. On preliminary inquiry done u/s 26(1) of 2002 Act, the Commission having been satisfied as to prima facie case, instructed the Director General to cause an investigation into the matter and submit report thereof within a period of 150 days. The same is put in challenge in this petition.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>6. Having heard the learned counsel appearing for the parties and having perused the Petition Papers & relevant of the Rulings cited at the bar, this court declines indulgence for the following reasons:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>A.<span style=\"white-space:pre\">	</span>A SKELETAL DESCRIPTION OF SCHEME OF THE COMPETITION ACT, 2002:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b> (i) Prior to the present competition law regime, the Monopolistic and Restrictive Trade Practices Act, 1969 (hereinafter ‘1969 Act’) was the primary instrument that dealt with competition, in the light of Directive Principles of State Policy enshrined in the Constitution.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(vi) Under the scheme of 2002 Act, the Commission is vested with enormous powers to perform different kinds of functions such as: inquisitorial, investigative, regulatory, adjudicatory and to a limited extent, even advisory. Vast powers have been given to the Commission to deal with the complaints or information leading to invocation of the provisions of sections 3 & 4 read with section 19 of the 2002 Act. It has power to award compensation and impose penalty. It can also make interim orders. The Commission being a statutory expert body takes institutional decisions. Regard being had to high stature of the Commission and the qualification & expertise of its constituent members, a strong presumption as to regularity of its proceedings arises; the persons assailing the same have an onerous task of rebuttal. Courts exercising writ jurisdiction under Articles 226 & 227 of the Constitution ordinarily do not have the expertise in matters like this and therefore, should loathe to interfere, subject to all just exceptions.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>B.<span style=\"white-space:pre\">	</span>AS TO CONTENTION OF PRECEDENT & LEGAL CERTAINTY IN VIEW OF DECISION IN ASHISH AHUJA CASE AND KAPIL WADHWA CASE: </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>Learned Sr. Advocates appearing for the petitioners submitted that the impugned order made under section 26(1) of 2002 Act directing investigation runs counter to what the Commission had said & done in Case No.17/2014 between ASHISH AHUJA vs. SNAPDEAL.COM decided on 19.05.2014 and the Delhi High Court decision in KAPIL WADHWA, supra. They argued that the petitioners had reframed their ‘warranty service policy’ as a part of their normal business practice consistent with the observations made in the said cases, which have since attained finality and therefore, the impugned order being repugnant to principles of precedent & legal certainty, is liable to be voided. This is controverted by the learned ASG appearing for the Commission<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>C.<span style=\"white-space:pre\">	</span>AS TO CONTENTION OF RES JUDICATA IN VIEW OF ASHISH AHUJA AND KAPIL WADHWA CASES:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(ii) The above decisions which the petitioners heavily banked upon had different fact matrices and years have rolled since they were decided. They are not justified in contending for the progressive transformation of questions of fact involved in those cases into propositions of law favorable to them. The decisions in ASHISH AHUJA & KAPIL WADHWA are not the evidence of any matter which come collaterally within the jurisdiction of Commission, nor of any matter incidentally cognizable or can be inferred by the arguments from the said decisions. Added, in ever changing matters of commerce & industry of the kind, the doctrine of res judicata ill suits<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(iii) The purpose of filing information before the Commission is only to set the ball rolling as per the provisions of 2002 Act. As already mentioned above, the scheme of section 26 envisages layered proceedings and the impugned order is only a step in aid of that. The scope of inquiry is much broader and not restricted to the material placed on record by the parties only. The directions issued by the Commission in its order under section 26(1) of the Act are not parties specific but address the alleged ‘anti – competitive practices’ in the industry in general, the punitive or corrective action being confined only to the parties, notwithstanding.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>D.<span style=\"white-space:pre\">	</span>AS TO PROCEEDINGS UNDER 2002 ACT BEING ‘IN REM’:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(vii)<span style=\"white-space:pre\">	</span>As already discussed above, the argument of petitioners’ that what has been observed in ASHISH AHUJA by the Commission and KAPIL WADHWA by the Delhi High Court do operate as res judicata and they have precedential value, supportive of their case, is not convincing to say the least: In matters like this, that too at the preliminary stage, the doctrine of res judicata or of precedent, cannot be invoked, no ‘case’ having been decided by the Commission in virtue of impugned order. What is observed in BALDEVDAS SHIVLAL VS. FILMISTAN DISTRIBUTORS  (INDIA)  PVT<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>E.<span style=\"white-space:pre\">	</span>AS TO SECTION 26 BEING ‘DRACONIAN’ AND DAMAGE TO PETITIONERS’ REPUATTION:<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(ii) The argument of learned Senior Advocate Dr. A.M.Singhvi that the investigation now ordered under section 26(1) of the 2002 Act may have a ‘detrimental effect’ on the business reputation of the petitioners, may be arguably true, to some extent. He also contended that the investigation to be undertaken by the Director General in terms of order under section 26(1) of the 2002 Act, (which he termed ‘draconian law’) involves an intrusive and free ranging inquiry into every aspect of his clients’ business. Hon’ble Delhi High Court in GOOGLE vs. COMPETITION COMMISSION OF INDIA19 although did not use the word ‘draconian’ observed that the powers of Director General to investigate under section 26(2) are far wider than the powers of the police under the Code of Criminal Procedure, 1973, is also true. However, similar contentions taken up by the very same counsel in FLIPKART supra were repelled by the Division Bench of this Court and the same has attained finality.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(iv) Even otherwise, there are several checks & balances against the abuse of power vested in the Commission which comprises of experts and qualified persons as its constituent members. Commission’s stature and track record as can be ascertained from several rulings of the Apex Court and various High Courts,  is  also  a  fair  assurance  against  the  abuse  of power. An opportunity of hearing is also provided to the stakeholders at the stage of investigation and thereafter whilst punitive or corrective action are being considered. This apart, a right of appeal is provided under section 53 A of the Act, as amended in 2007, once the report of investigation is submitted by the Director General. The adverse consequences of proceedings taken in accordance with law ordinarily fall under the maxim, ‘damnum sine injuria’. There may be damage to person, property or reputation but there is no legal injury to complain of. If petitioners’ contention of ‘grave consequences’ is accepted, then almost invariably, no preliminary inquiry at the hands of Commission or the investigation at the hands of Director General can be undertaken and that would render the very scheme of section 26 would be rendered virtually otiose.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(vi) It is not that in no case in which Commission directs investigation under section 26(1) of the Act arbitrarily and unreasonably, the aggrieved cannot invoke writ jurisdiction. Such cases warranting indulgence of Court ordinarily involve ‘manifest arbitrariness’ as discussed in SHAYARA BANO vs. UNION OF INDIA and therefore, even in respect of proceedings at the preliminary stage, remedy can be had by the aggrieved. However, in this petition no such case is made out, despite lengthy arguments and bulky pleadings of the petitioners that justified indulgence of this Court. The petitioners hastily rushed to this Court and unjustifiably secured an interim order that interdicted an inquiry of preliminary nature, for all these years, to the enormous prejudice of public interest. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>This Writ Petition, besides being premature and absolutely devoid of merits, is an abortive attempt by the petitioners to scuttle the innocuous statutory proceedings of the Commission. Therefore, this is a fit case for dismissal with exemplary costs. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>In the above circumstances, this petition is liable to be dismissed and accordingly it is, with a cost of Rs.10,00,000/- (Rupees Ten Lakh) only, payable to the 1st respondent – Competition Commission of India within six weeks.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f29f73354d509d6faa6e4400effc59e2.JPG', '1ab8ac70a00368ac61bf206e65eec151.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-30', 1, '', '', '2022-08-26 16:53:25', '2022-08-31 00:54:36');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2123, 'X2alMyZTPQAJXVINs63zx2ExY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Test', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; font-weight: bolder;\">Considering the dominant position occupied by WhatsApp, the investigation proposed to be conducted by CCI does not warrant interference, and res judicata would, thus, not be applicable in the instant case.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; font-weight: bolder;\"><br></span><b>Whatsapp LLC Vs Competition Commission of India and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>LPA 163 of 2021 decided on 25 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts, in brief, leading to the instant Appeals are as under:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i. Prior to 25.08.2016, WhatsApp (the Appellant in LPA\r\n163/2021), a messaging platform, was governed by its Terms of\r\nService and Privacy Policy of July 2012. In the year 2014,\r\nWhatsApp was acquired by Facebook (the Appellant in LPA\r\n164/2021). Facebook Inc. is now known as “Meta Platforms”,\r\nhowever, for ease of comprehension, this Court shall refer to the\r\nAppellant in LPA 164/2021 by its former nomenclature.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ii. On 25.08.2016, the Terms and Services and the Privacy Policy\r\nof WhatsApp (hereinafter referred to as “2016 Policy”) was\r\nupdated, and WhatsApp users were informed of Facebook\'s\r\nacquisition of WhatsApp and how Facebook would use\r\nWhatsApp’s information for its advertisement and products. A\r\none-time opportunity was given to WhatsApp users to opt out of\r\nFacebook using their information that was shared over\r\nWhatsApp. However, users who joined WhatsApp after the\r\n2016 Policy, were not offered this option<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. At the outset, it becomes pertinent to delineate the objective of the\r\nCompetition Act, 2002, and the role of the CCI. The objective of the Act is\r\nset out in the Preamble itself, i.e. to establish a Commission to prevent\r\npractices having adverse effect on competition, to promote and sustain\r\ncompetition in markets, to protect the interests of consumers, and to ensure\r\nthe freedom of trade carried on by other participants in markets, in India, and\r\nfor matters connected therewith or incidental thereto. Chapter II of the\r\nCompetition Act prohibits certain agreements, abuse of dominant position,\r\nand regulation of combinations, with Section 4 specifically prohibiting the\r\nabuse of dominant position. Chapter IV of the Act deals with provisions\r\nwhich set out the duties, powers and functions of the CCI, with Section 18\r\nstating that it shall be the duty of the Commission to eliminate practices\r\nrelating to the principles set down in the Preamble itself [Refer to\r\nCompetition Commission of India v. State of Mizoram and Ors., 2022 SCC\r\nOnLine SC 63].<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. The primary issue that has been submitted before this Court is with\r\nregard to the overlapping jurisdiction of the CCI and the Constitutional\r\nCourts, and whether CCI should abstain from exercising its jurisdiction to\r\nmaintain comity between decisions of different authorities on the same\r\nissues. In this context, the Appellants have placed heavy reliance on\r\nCompetition Commission of India v. Bharti Airtel (supra) to submit that\r\ntherein the sectoral regulator, i.e. TRAI, had been given leeway by the\r\nSupreme Court to conduct its inquiry, over CCI.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">30. A reading of the aforesaid paragraphs of the Judgement indicates that\r\nthe sole issue therein was a conflict between the jurisdiction of a sectoral\r\nregulator and the market regulator. The Supreme Court came to a finding\r\nthat the matter pertained to the telecom sector, which was specifically\r\nregulated by the TRAI Act. However, it noted that the jurisdiction of TRAI\r\nwould not oust that of CCI to deal with violations of Competition Act and\r\nviolations thereunder. Moreover, Paragraph 100 of the Judgement states that&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in the case therein, the dispute pertained to how Incumbent Dominant\r\nOperators (IDOs) had not given Points of Interconnect (POIs) as per the\r\nlicense conditions, and Reliance Jio Infocomm Ltd. (RJIL) had specifically\r\napproached TRAI for the settlement of this dispute. TRAI, being the\r\nauthority that would mandate the adherence to licensing conditions, was,\r\ntherefore, deemed fit to be seized of the matter before the charge of\r\ninvestigation could be given to the CCI.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. It is the contention of the Appellants that since the underlying issues\r\narising before the Apex Court and this Court, and the investigation that is\r\nsought to be conducted by the CCI are common, this can potentially lead to\r\nconflicting opinions. This contention of the Appellants is not acceptable. It is\r\nthe case of the Appellants that while the Apex Court is looking into whether\r\nthe 2021 Policy is violative of the right to privacy under Article 21 of the\r\nConstitution of India or not, the investigation by CCI is confined to whether\r\nthe 2021 Policy is in furtherance of the dominant position occupied by\r\nWhatsApp and institutes anti-competitive practices. The sphere of operation\r\nof both are vastly different. Neither this Court nor the Supreme Court are\r\nanalysing the 2021 Policy through the prism of competition law.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36. Moreover, the contention of the Appellants that the CCI in Vinod\r\nKumar Gupta (supra) has already assessed the 2016 Policy, and has come to&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">conclusion that the breach of the IT Act, 2000, does not fall within the\r\npurview of the CCI, is irrelevant on the ground that, as has been stated in the\r\nCCI Order as well, the CCI is only concerned with data accumulation that\r\nmay result in exploitative and exclusionary competitive practices as well as\r\nthe effect of data sharing on market capture and competitors’ offerings.\r\nFurthermore, it is pertinent to note that the 2021 Policy is a substantially\r\nmodified version of the 2016 Policy inasmuch as the 2016 Policy had an\r\n“opt-out” option, which is absent from the 2021 Policy that places its users\r\nin a “take-it-or-leave-it” situation. It is the “opt-out” option that primarily led\r\nto CCI rendering its conclusion that the 2016 Policy did not violate the\r\nCompetition Act, 2002. However, in the face of changed circumstances,\r\nconsidering the dominant position occupied by WhatsApp, the investigation\r\nproposed to be conducted by CCI does not warrant interference, and res\r\njudicata would, thus, not be applicable in the instant case. In view of this,\r\nthe fact that the Order of the CCI in Vinod Kumar Gupta (supra) has been\r\nupheld by the NCLAT vide Order dated 02.08.2022 is of no relevance and\r\ndoes not sway the opinion of this Court. Similarly, the emphasis placed by\r\nthe Appellants on the letter dated 18.05.2021 is wholly irrelevant as the mere\r\nmentioning of the Competition Act does not denote that MeiTY is seized of\r\nthe violations that may be incited by the 2021 Policy. The sphere of\r\njurisdiction occupied by MeiTY is different from that of the CCI, and solely\r\nbecause the said letter alludes to possible violations of the Act does not oust\r\nthe jurisdiction of the CCI. Per contra, the letter only strengthens the\r\ncontention of Respondent No.1 that there does exist a prima facie violation\r\nof the provisions of Competition Act, 2002. It is further a matter of public\r\nknowledge that the Personal Data Protection Bill, as of date, has been withdrawn.&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>40. The learned Single Judge, after a careful consideration of the CCI\r\nOrder dated 24.03.2021, has also arrived at the same conclusion that\r\nWhatsApp assumes a dominant position in the relevant product market and\r\nthe relevant geographical market.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Therefore, as can be discerned from the foregoing, WhatsApp occupies a\r\ndominant position in a market for OTT messaging apps through smartphones\r\nin India.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>44. It is not in dispute that WhatsApp occupies a dominant position in the\r\nrelevant product market and that there exists a strong lock-in effect which\r\nrenders its users incapable of shifting to another platform despite\r\ndissatisfaction with the product – as is exemplified by how, despite an\r\nincrease in the downloads of Telegram and Signal when the 2021 Policy was\r\nannounced, the number of users of WhatsApp have remained unchanged. By\r\nand large, to ensure retention of its user base and to prevent any other\r\ndisruptive technology from entering the market, data is utilised by tech\r\ncompanies to customise and personalise their own platforms so that its\r\nuserbase remains hooked. When data concentration is seen through this\r\nprism, it does give meaning to the new adage that “data is the new oil”, and,\r\nas noted in the CCI Order dated 24.03.2021, it raises competition concerns\r\nbecause it prima facie amounts to imposition of unfair terms and conditions\r\nupon its users, thereby violating Section 4(2)(a)(i) of the Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n45. Furthermore, as Paragraph 33 of the CCI Order dated 24.03.2021\r\n(which has been reproduced hereinabove) states, accumulation and\r\nprocessing of personal data from WhatsApp, in addition to its own direct\r\ndata collection, can be done by Facebook for the purposes of consumer\r\nprofiling that allows for targeted ads, inter alia, which in turn has the\r\npotential to undermine competitive processes and create further barriers to\r\nmarket entry in stark violation of Section 4(2)(c) and (e) of the Act. In view\r\nof these observations, it is evident that CCI has, after due consideration,\r\narrived at its decision that a prima facie case of violation of provisions of the\r\nCompetition Act, 2002, has been made out against the Appellants herein that\r\nwould require an investigation to be initiated by the DG. The learned Single\r\nJudge has taken into consideration all these factors before observing that&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">concentration of data in the hands of WhatsApp may raise competition\r\nconcerns, thereby resulting in the violation of Section 4 of the Act.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>46. Additionally, the reliance of the Appellants on CCI’s Order in Vinod\r\nKumar Gupta (supra) is misplaced for the simple reason that 2016 Policy\r\nprovided its users the option to “opt-out” of sharing user account\r\ninformation with Facebook within 30 days of agreeing to the updated Terms\r\nof Service and Privacy Policy. The 2021 Policy, however, places its users in\r\na “take-it-or-leave-it” situation, virtually forcing its users into agreement by\r\nproviding a mirage of choice, and then sharing their sensitive data with\r\nFacebook Companies envisaged in the policy. Therefore, it cannot be said\r\nthat the CCI is bound by its own findings in Vinod Kumar Gupta (supra)\r\nwhen the issue at hand as well as the circumstances are different.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">47. Apart from the aforesaid two issues, it is also the contention of the\r\nAppellant in LPA 164/2021 that it is a separate and distinct legal entity from\r\nWhatsApp, and therefore, it should not be subjected to an intensive and\r\nintrusive investigation by the DG in pursuance of the findings of the CCI\r\nunder Section 26(1) of the Act. In this regard, the Court finds merit in the\r\nsubmission of the learned ASGs that one of the key issues with the 2021\r\nPolicy is its propensity to share the data of its users with Facebook Inc., the\r\nparent company of WhatsApp. Solely for the reason that the policies itself\r\ndo not emanate out of Facebook Inc., the Appellant cannot hide behind the\r\nfact that it is the direct and immediate beneficiary of the data sharing\r\nmechanism envisaged by the policies. These circumstances necessitate the\r\npresence of the Appellant in LPA 164/2021 as a proper party in the\r\ninvestigation pertaining to the 2021 Policy and the alleged anti-competitive\r\npractices they trigger.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>48. With regard to the submissions on behalf of Facebook India Online\r\nServices Pvt. Ltd., this Court does not find any merit on the aspect of\r\nimpleading the said party on account of the fact that the decision of the DG\r\nto issue notice to the Applicant, designating it as an “Opposite Party”, stems\r\nfrom the information it has secured from Internet Freedom Foundation in\r\nCase No. 30 of 2021 regarding its relevance in the investigation. The\r\ndecision taken by the DG lies in the fact that a thorough investigation can\r\nonly be conducted if the Applicant cooperates in the same.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>49. Furthermore, it is not contemplated in law that a party should be\r\nimpleaded at the stage of an appeal when it has not been a party to the matter\r\nat the stage when the decision from which the appeal arises has been given,\r\nand the remedy of the Applicant only lies by way of a writ against the Order\r\nby which it is aggrieved. The contention of Mr. Tripathi that the Applicant\r\nhas chosen to implead itself in the appeal filed by Facebook cannot be\r\naccepted by this Court. The Applicant will have to first make out a prima\r\nfacie case before the learned Single Judge that there is no allegation against\r\nit in the Order of the CCI. The case of the Applicant would involve\r\nindependent application of mind by the learned Single Judge. The instant\r\nappeals are primarily on the issue as to whether the CCI ought to wait till\r\nfinal adjudication of the issues which are pending before the Apex Court.\r\nThe Impleadment Application cannot be entertained in the instant appeals\r\nwhich have been filed by Facebook Inc. and WhatsApp. This Court,\r\ntherefore, does not deem it fit to scuttle the investigation at a nascent stage\r\nand defers to the wisdom of the DG and the CCI, and rejects the\r\nImpleadment Application. However, the Applicant is granted the liberty to\r\ntake all such steps as required by it, in accordance with law, to impugn the\r\nCCI Order.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>50. In light of the aforesaid observations, this Court is of the opinion that\r\nthe impugned Judgement dated 22.04.2021, passed by the learned Single\r\nJudge in W.P.(C) 4378/2021 &amp; W.P.(C) 4407/2021, is well reasoned, and\r\nthat the appeals filed by the Appellants are devoid of merit and substance\r\nthat would warrant the interference of this Court.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>51. Accordingly, the instant appeals are dismissed, along with pending\r\napplication(s), if any.&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '15bd42d8ccf2f54003140dfb4a9064d4.jpg', '428dd5b75caf6fd572150d843378b839.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-26', 0, '', '', '2022-08-26 17:26:27', '2022-09-05 19:09:10'),
(4521, 'D9y93OJ8Olzcl09n95ZfJxnKb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A coparcener can NOT seek injunction against Karta from entering into a transaction for sale of the joint Hindu family property, although post alienation he has a right to challenge the alienation if the same is not for legal necessity. Supreme Court. ', '<p><b>Beereddy Dasaratharami Reddy vs V. Manjunath and another.<br>Civil Appeal 7037 of 2021 decided on 13 December 2021<br>Justice M.R. Shaj and Justice Sanjiv Khanna&nbsp;<br>Judgment Link:&nbsp;<a href=\"https://main.sci.gov.in/supremecourt/2021/18913/18913_2021_46_1502_32097_Judgement_13-Dec-2021.pdf\" target=\"_blank\">https://main.sci.gov.in/supremecourt/2021/18913/18913_2021_46_1502_32097_Judgement_13-Dec-2021.pdf</a></b></p><p><b>The legal issue which arises for consideration in the present appeal is whether K. Veluswamy, as a Karta, has legal authority to execute agreement to sell dated 8th December 2006 for sale of the suit land, being agricultural land – (i) Sy.No. 7/1P1, measuring 4 acres, 21 guntas of land; (ii) Sy.No. 7/1P2 measuring 5 acres of land; and (iii) Sy.No. 8/3P3 measuring 2 acres of land, in all 11 acres 21 guntas of wet land, situated in Bagganadu Kaval Village, J.G. Hally Hobli, Hiriyur Taluk, Chitradurga District, Karnataka.</b></p>', 'de32b7cf8730c07dcf281fb6d8161bb4.jpeg', '1103a91d30cdfd686dfef191e977ab8c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2024-05-22', 1, '', '', '2024-05-22 13:10:17', '2024-05-22 13:10:17'),
(4523, 'nSUg3jmXKpk0iUGqVeNJNO1q9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Delay in reporting seizure of property under Section 102(3) Cr.P.C to the jurisdictional Magistrate does not vitiate the seizure order altogether. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shento Varghese Vs Julfikar Husen and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 2531-2532 of 2024 decided on 13 May 2024.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Pamidighantam Sri Narasimha and Justice Aravind Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. These appeals have been preferred at the instance of the first\r\ninformant in Crime No.318 of 2022. By the impugned order dated\r\n09.08.2023, passed in Crl. O.P. Nos.14029 & 14031 of 2023 and Crl. M.P.\r\nNos.8658 of 2023, the High Court of Madras has allowed the claim of the\r\nRespondents-accused for de-freezing of their bank accounts. The High\r\nCourt has ordered for de-freezing on the specific ground that there was delay\r\non part of the police in reporting the seizure to the jurisdictional Magistrate. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The facts in the instant case, which we shall advert to later below, have given\r\nrise to following question of law:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>What is the implication of non-reporting of the seizure\r\nforthwith to the jurisdictional Magistrate as provided\r\nunder Section 102(3) Cr.P.C.? </i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>more specifically;</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>Does delayed reporting of the seizure to the Magistrate\r\nvitiate the seizure order altogether?<br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i> </i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>That is the question which needs to be answered in these appeals.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. In our view, the answer to this question can be derived by referring\r\nto the provisions in Chapter XXXIV of the 1973 Code which is titled as\r\n‘Disposal of Property’. Section 457 Cr.P.C. sets out the procedure to be\r\nfollowed by police upon seizure of the property. Sub section (1) begin with\r\nthe words: ‘Whenever the seizure of property by any police officer is\r\nreported to a Magistrate under the provisions of this Code, and such\r\nproperty is not produced before a Criminal Court during an inquiry or\r\ntrial…..”. Similarly, we may refer to Section 459 Cr.P.C. which empowers\r\nthe Magistrate with the power to auction/sell seized property in certain\r\nsituations. It begins with the words: ‘If the person entitled to the possession <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of such property is unknown or absent and the property is subject to speedy\r\nand natural decay, or if the Magistrate to whom its seizure is reported is of\r\nopinion that……”.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Both, Section 457 Cr.P.C. and Section 459 Cr.P.C. contemplates the\r\nact of seizure by police to be reported to the Magistrate so that necessary\r\nsteps could be taken for its custody and disposal. However, the provision\r\n[Section 102(1) Cr.P.C.] which conferred substantive power on the police to\r\nseize property linked to a crime, did not impose on such officers a\r\nconsequent duty to report the seizures made to the Magistrate. Section 523\r\nin the 1882 Code had coupled the power to seize property linked to the crime\r\nand the duty to report forthwith the seizure to the Magistrate in the same\r\nprovision. Since the relevant provisions in the 1898 Code and the 1973 Code\r\nprovided only for the substantive power to seize and did not impose any duty\r\non such seizing officer to report to the Magistrate, there arose a need for\r\namendment. That appears to us to be the lacuna in the law which was sought\r\nto be overcome. In fact, there are several decisions which indicate that the\r\npurpose of reporting to the Magistrate is to ensure an order of the disposal\r\nof the seized property either on superdari, or otherwise, during the pendency\r\nof the case/investigations under Section 457 Cr.P.C. This further reinforces\r\nour view regarding the lacuna which was sought to be fixed. Therefore, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">main object underlying the amendment appears to be a mere gap-filling\r\nexercise and an attempt to fix a basic omission in legislative drafting.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. We find that there are certain other provisions19 in the 1973 Code\r\nwhich place similar obligation(s) on the police officer to report their actions <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to the jurisdictional Magistrate. For example, Section 157 Cr.P.C. provides\r\nthat ‘if, from information received or otherwise, an officer in charge of a\r\npolice station has reason to suspect the commission of an offence……he\r\nshall forthwith send a report of the same to a Magistrate’. As in the case of\r\nSection 102(3) Cr.P.C., Section 157 Cr.P.C. does not provide for any\r\nconsequence in the event there is failure to promptly comply with the\r\nreporting obligation. It would be helpful to understand how this Court has\r\nelucidated on the effect of such non-compliance in the context of Section\r\n157 Cr.P.C. since the provision is nearly pari materia with Section 102(3)</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. Merely because we have held that non reporting of the seizure\r\nforthwith by the police officer to the jurisdictional court would not vitiate\r\nthe seizure order, it would not mean that there would be no consequence\r\nwhatsoever as regards the police officer, upon whom the law has enjoined a\r\nduty to act in a certain way. Since there is an obligation cast on the officer\r\nto report the seizure forthwith, it becomes necessary to understand the\r\nmeaning of the expression forthwith as used in Section 102(3) CrPC. For,\r\nwithout a clear understanding of the said expression, the Magistrate would\r\nnot be in a position to determine whether the obligation cast on the police\r\nofficer has been properly complied with. In this background, the expression\r\n‘shall forthwith report the seizure to the Magistrate’ occurring in subsection (3) of the Section 102 requires to be examined.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. Therefore, in deciding whether the police officer has properly\r\ndischarged his obligation under Section 102(3) Cr.P.C., the Magistrate would\r\nhave to, firstly, examine whether the seizure was reported forthwith. In doing\r\nso, it ought to have regard to the interpretation of the expression, ‘forthwith’\r\nas discussed above. If it finds that the report was not sent forthwith, then it\r\nmust examine whether there is any explanation offered in support of the delay. <span style=\"font-size: 12pt;\">If the Magistrate finds that the delay has been properly explained, it would\r\nleave the matter at that. However, if it finds that there is no reasonable\r\nexplanation for the delay or that the official has acted with deliberate\r\ndisregard/ wanton negligence, then it may direct for appropriate departmental\r\naction to be initiated against such erring official. We once again reiterate that\r\nthe act of seizure would not get vitiated by virtue of such delay, as discussed\r\nin detail herein above.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. With these observations, appeals are allowed in part.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7cbf5a5ac75491684edefb536b10b692.jpg', '22a6673964776e8c1e9565c2b5cbefcc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2024-05-27', 1, '', '', '2024-05-26 20:09:57', '2024-05-27 12:17:22');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2137, 'zivTtHqyL9rYmcrPg9zEalits', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Urban Planning. Description of a land as a pond/water-body in the revenue records, when no pond exists on site, can be corrected after conducting a spot inspection. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State of Rajasthan and another Vs Ultratech Cement Ltd.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5841 of 2022 decided on 26 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice N.V Ramana, Justice Hima Kohli and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. A brief overview of the facts of the case is necessary.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.1. With the idea of setting up a Cement plant having the capacity of 3 million tons of\r\ncement per annum in four villages situated in Tehsil Nawalgarh, District Jhunjhunu,\r\nspreading over 1000 hectares of land, the respondent–Company purchased/acquired\r\n400 hectares of land through direct negotiations and took steps to acquire the remaining\r\npart of land through private negotiations, as also by way of allotment through RIICO. For\r\nexecuting the project of cement manufacturing, the respondent–Company applied to the\r\nappellant–State Government in the year 2000 – 2001 for grant of adjoining mining\r\nleases for mineral lime stone (cement grade) in Tehsil Nawalgarh, District Jhunjhunu. A\r\nletter of intent was issued by the appellant–State Government on 16th March, 2002 in\r\nrespect of two mining leases, but due to non-availability of environment clearance within\r\nthe stipulated time, the said LOI was cancelled by the State Government by order dated\r\n07th February, 2005. The said order was challenged by the respondent–Company by\r\npreferring a revision petition before the Mines Tribunal which was allowed vide order\r\ndated 19th July, 2007 and the matter was remitted back to the State Government for\r\nfresh examination in accordance with law. The appellant–State Government vide order d<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ated 22nd November, 2007, restored the LOI subject to compliance of certain conditions\r\nand on an undertaking to be furnished by the respondent–Company. The said LOI was\r\nhowever, cancelled by the Mines Tribunal vide order dated 29th July, 2009. Aggrieved by\r\nthe said cancellation order, the respondent–Company approached the High Court by\r\nfiling a writ petition which was allowed vide order dated 19th August, 2010 and the\r\nappellant–State Government finally issued a LOI on 28th October, 2010</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.5 . In compliance of the aforesaid order, the appellant–State Government passed an\r\norder dated 25th January, 2016, holding inter alia that the subject land having been\r\nrecorded in the revenue record as ‘Johad’, no allotment could be made in favour of the\r\nrespondent–Company. In view of the aforesaid stand taken by the appellant–State\r\nGovernment, the Division Bench proceeded to hear the respondent’s appeal on merits\r\nand allowed the same by virtue of the impugned judgment whereunder the appellant–\r\nState Government has been directed to allot the subject land in question to the\r\nrespondent–Company and take consequential steps in the matter.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.6. The High Court has specifically recorded in the impugned judgment that learned\r\ncounsel for the appellant–State Government did not dispute the fact even before the\r\nCourt that though the subject land in question was classified as ‘Johad’, it neither fell\r\nwithin any catchment area, nor did water ever collect there and there was no natural <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">water reservoir on the subject land. The court opined that looking at the topography of\r\nthe area, the site in question did not have use for any other purpose at all. In fact, the\r\nsaid site selected for mining, had commercially viable lime stone deposits and the\r\nselection was made after due consultation with the Gram Panchayat, Baswa. Thus,\r\nthere was no justification for turning down the fact-finding Reports filed by the Tehsildar,\r\nLand Records, Nawalgarh, regarding the status of the land. In fact, the said Reports had\r\nbeen duly accepted by the appellant–State Government. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. We have heard the arguments advanced by the learned counsel for the parties,\r\nperused the impugned judgment and the documents placed on record. The only issue\r\nthat arises for the consideration of this Court is that once an in-principle consent has\r\nalready been accorded by the appellant–State Government for reservation and\r\nallocation of the subject land under the mining lease in favour of the respondent–\r\nCompany for it to set up a cement plant and the condition inserted in the approval letter\r\ndated 23rd February, 2012 that the respondent–Company should produce a No <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Objection Certificate / order from the High Court permitting allocation of ‘Gair–Mumkin\r\nJohad’ land stands satisfied by virtue of the impugned judgment, would a challenge still\r\nlie against the same at the instance of the appellant–State Government?</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. The aforesaid material has been examined at length in the impugned judgment.\r\nThe High Court has also taken note of the Resolution passed by the Gram Panchayat,\r\nvillage Baswa and the certificate issued by the Gram Panchayat which records that no\r\nwater had ever accumulated on the subject land and the Gram Panchayat did not have\r\nany objection to the said land being granted to the respondent–Company for mining\r\nlease purpose subject to the condition that it would be receiving an equal measure of\r\ndeveloped land in the same village from the respondent–Company in view of the land\r\nbeing consumed for mining lease purpose. The respondent–Company has also given\r\nundertakings to the High Court that the environment of the village will not be adversely impacted and the ecological balance shall be maintained. One of the undertakings given\r\nby the respondent–Company is that the site identified for development of an alternate\r\n‘Johad’ would be identified and developed in a planned manner, so as to create a\r\ncatchment area, water harvesting structure and cattle grazing land.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">12. Given the above background, reliance placed by learned counsel for the\r\nappellant–State Government on the judgments cited by him, is found to be misplaced. In\r\nVellore Citizens’ Welfare Forum6\r\nand A.P Pollution Control Board7\r\n, this Court\r\nrecognized the requirement of reconciliation between the concept of development and\r\necology as a facet of sustainable development. The relevant Articles of the Constitution\r\nof India including Articles 21, 47, 48-A, 51-A (g) that protect and improve the\r\nenvironment have been highlighted and the Precautionary Principle and Polluter-Pays\r\nPrinciple have been declared to be a part of the environmental law of the country. It has\r\nalso been accepted that the burden of proof should lie on the entity proposing an activity\r\nthat is potentially harmful to the environment. There can be no quarrel with the above\r\nposition, but neither of the aforesaid judgments are relevant in the facts and\r\ncircumstances of the instant case, inasmuch as no burden has been placed on the\r\nrespondent–Company to demonstrate that the industry proposed to be set up by it, shall\r\nnot cause any serious and/or irreversible harm to the ecology of the area. On the\r\ncontrary, it is the stand of the Revenue Department of the appellant–State Government </span><span style=\"font-size: 12pt;\">itself that there is no likelihood of any damage to the ecology of the area as the spot\r\ninspections reveal that there is no pond existing on the subject land that may be\r\nimpacted adversely.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>13. In Narmada Bachao Andolan v. Union of India , this Court had the occasion to\r\ndiscuss the Precautionary Principle and it was held that the said principle and the\r\ncorresponding burden of proof on the person who wants to change the status quo, will\r\nordinarily apply in the case of polluting or other projects or industry where the extent of\r\ndamage likely to be inflicted, is not known. But when the effect of the project is known,\r\nthen the principles of sustainable development would come into play which will ensure\r\nthat mitigative steps can be taken to preserve the ecological balance. In the present\r\ncase, there is no such uncertainty due to lack of availability of data or scientific material\r\nabout the damage if any, likely to be caused to the ecological balance of the area.\r\nInstead, detailed spot inspections have been conducted by the revenue authorities from\r\ntime to time that establish that there is no ‘Johad’ existing on the subject land. Despite\r\nthat, the respondent–Company has been directed to develop an alternate ‘Johad’ in a\r\nplanned manner at the same area, as a mitigative step which it has undertaken to\r\nexecute. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. The focus in the case of Electrotherm (India) Limited9 was on conducting public\r\nhearings as a mandatory requirement of the environmental clearance process and the\r\nCourt has frowned upon doing away with public hearings in the course of the decisionmaking process. In the case of Common Cause10\r\n, this Court was seized of the aspect\r\nof illegal/unlawful mining in the State of Odisha and it was observed that Courts cannot\r\ninterfere with the Mining Policy or lay down limits on the extent of mining activity that\r\nshould be permitted by the State/Central Government. The said decision does not have\r\nany application to the facts of the instant case where the appellant–State Government\r\nhas already given an in-principle consent for setting up a cement plant in favour of the\r\nrespondent–Company and the High Court was only required to examine the aspect of\r\ncorrection in the revenue records in relation to the subject land where a ‘Johad’ was\r\nmentioned, but none existed at site.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17.  In Alembic Pharmaceuticals’ case , the issue before this Court was with\r\nrespect to the operation of industries without obtaining prior environmental clearance for\r\na long time and their liability on account of such non-compliance. Noting that the\r\nindustries had evaded the legally binding regime of obtaining environment clearance, it\r\nwas held that penalty must be imposed on them for disobedience and non-compliance <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the rules and regulations. Here, the respondent–Company has admittedly received\r\nenvironmental clearances and in spite of the same, its project has not taken off due to\r\nvarious hurdles created by the appellant–State Government. Clearly, the present case is\r\nnot one of breach of any norms for imposition of penalty on the respondent–Company.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18. Even the judgment of the Division Bench of the Rajasthan High Court in the case\r\nof Abdul Rehman4\r\nis being completely misread by the appellant–State Government.\r\nThe focus in the said judgment was on the restoration of the catchment area to its\r\noriginal shape for which a plan was directed to be drawn up which included demarcation\r\nof the catchment areas, demarcation of drainage channels etc. Nowhere in the said\r\njudgment has it been observed that the description of a land as a pond in the revenue\r\nrecords, when no pond exists on site, cannot be corrected after conducting a spot\r\ninspection. We are inclined to accept the submission made by learned counsel for the\r\nrespondent–Company that in the absence of any pond at the spot, the decision\r\nrendered in the case of Abdul Rehman4\r\n cannot be an impediment for processing the\r\napplication of the respondent–Company for allocation of the subject land, for setting up\r\na cement plant. The High Court has rightly referred to the decision of this Court in\r\nDirector General, Research and Development , where noting the fact that there was\r\nno ‘Gair-Mumkin’ Nadi existing on the spot, it was observed that the decision of the High\r\nCourt in Abdul Rahman4 will not come in the way of allotting the land to the petitioner</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>19. For the aforesaid reasons, we concur with the findings returned in the impugned\r\njudgment which is upheld. The appellant–State Government is directed to take\r\nnecessary steps to process the allotment of the subject land in favour of the\r\nrespondent–Company within four weeks from today. The respondent–Company shall file\r\na fresh undertaking with the State Government, within the same timeline, as was filed by\r\nit before the High Court, for initiating time bound activities for the benefit of the\r\nsurrounding villages, as compensatory measures for the allocation of the subject land.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>The appeal is dismissed while leaving the parties to bear their own expenses.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '88173838fe4c4911696577d35ca8cdfb.png', 'a45ec007b0d39aa8f1e06e6c487d62e1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-07', 1, '', '', '2022-08-30 15:22:04', '2022-09-07 06:42:49'),
(2159, '13oTYlLcu3CUuSK7rGkhk8Hsp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When disciplinary inquiry is found to be defective, the proper remedy is to set aside the order and allow enquiry to continue from the stage of defect. Supreme Court  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State of Uttar Pradesh and others Vs Prabhat Kumar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1567 of 2019 decided on 1 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Gupta and Justice Sudhanshu Dhulia.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The challenge in the present appeal is to an order dated 25­8­2017 passed by the High Court of Judicature at Allahabad, Lucknow Bench, whereby the Writ Petition filed by the State against the order of the State Public Service Tribunal dated 19­11­2014 was dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. The respondent was imposed the punishment of dismissal from service vide order dated 23­12­2006. The departmental appeal against the said order was dismissed on 22­11­2007 and the revision was dismissed vide order dated 31­12­2008. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. The appeal preferred by the respondent before the State Public Service Tribunal was allowed on the ground that no inquiry was conducted after the employee was charge­sheeted. Thus, it is a case of no evidence of misconduct. The order of punishment was passed for the reason that the delinquent has chosen not to appear in the departmental proceedings.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. It is not disputed that no evidence was led by the department to prove the misconduct against the respondent. In the absence of any proof of misconduct, the order of punishment of dismissal from service was rightly interfered with by the Tribunal as affirmed by the High Court. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. The allegation against the respondent is of absence from duty for more than 327 days which was made the basis for issuing the charge­sheet. Even after the charge­sheet was served, the respondent failed to participate in the departmental proceedings or to join duties. This Court in Anant R. Kulkarni v. Y.P. Education Society, (2013) 6 SCC 515 held that once the Court set aside an order of punishment on the ground that the enquiry was not properly conducted, the Court should not preclude the employer from holding the inquiry in accordance with law. It must remit the case concerned to the disciplinary authority to conduct the enquiry from the point that it stood vitiated, and to conclude the same in accordance with law.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. This Court in a Constitution Bench judgment reported as ECIL v. B. Karunakar, (1993) 4 SCC 727 held that if the Court finds that furnishing of the enquiry report would have made a difference to the result, in such case it should set aside the order of punishment. Where the Court sets aside the order of punishment, the proper relief which should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to back­ wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. Therefore, the matter is remitted back to the disciplinary authority to conduct the departmental proceedings from the stage prior to the order of punishment. The period from the date of the order of punishment till the consequent action after the fresh proceedings shall be decided after the disciplinary proceedings are concluded. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. The appeal is accordingly allowed with the direction to the disciplinary authority to complete the inquiry from the stage prior to the order of punishment passed against the respondent.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '818278fcba74a26f74a946f062572661.jpg', '9f0346940f17a24b40f3ea06567a181d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-07', 1, '', '', '2022-09-06 23:58:06', '2022-09-07 10:44:26'),
(2160, 's6yxAVGsz58ZZ8m6eFstglu4E', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Permission to demolish dilapidated building. Though issuance of notice to adjacent owner is not necessary, it is incumbent to notify when demolition poses threat. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Indumathi Vs Mangalore City Corporation and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 9479 of 2022 decided on 18 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The 2nd respondent, the co-owner of the subject property filed an application with the 1st respondent for a permission to demolish the subject property stating that the subject property is in a dilapidated condition. The 1st respondent by communication dated 28.10.2021 granted permission to the 2nd respondent to demolish the subject property subject to certain terms and conditions and one of the condition imposed was that the 2nd respondent should take consent of the petitioner since there is common stair case and common corridor to the building. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2. Since the petitioner objected to the demolition of building by the 2nd respondent, the 2nd respondent filed an application with the 1st respondent for taking action under Section 322 (2) of the Karnataka Municipal Corporation Act. The 1st respondent exercising power conferred under Section 322 (2) of the KMC Act, passed an order to evacuate the building and to remove any person by Police force, against which the present petition is filed.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. The 2nd respondent was granted with permission to demolish the subject property subject to the condition that the 2nd respondent should obtain prior consent of the petitioner before demolishing the subject property. Though Section 322(2) and (3) of the Act does not contemplate issuance of notice to any person, however, in the present case, the condition was imposed that the 2nd respondent should obtain prior consent of the petitioner before demolishing the subject property. Hence, it was incumbent upon the 1st respondent to issue notice before exercising the power under Section 322 (2) and (3) of the Act since the subject property is in a dilapidated condition and dangerous to human life. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Writ petition is allowed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e91712428fb52b086dedc964ed70a934.jpeg', '5caff52c62a60696abd4cced6bbb2b1f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-08', 1, '', '', '2022-09-07 00:23:43', '2022-09-08 12:42:02'),
(2127, 'jy1SEvMzvOsECv7eWYvgP9qft', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Look Out Notice. An accused who is enlarged on bail should be made known as to why his travel is being interrupted. He must be served with copy of Look Out Notice. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Harshavardhana Rao Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 12185 of 2022 decided on 24 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is before this Court in the subject petition seeking a direction by issuance of a writ in the nature of mandamus directing the 4th respondent/Deputy Commissioner of Police to recall the Lookout Circular (hereinafter referred to as ‘the LOC’ for short) issued in connection with Crime No.145 of 2021 and consequently permit him to travel beyond the shores of this nation on consideration of the representation so given for its recall.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. The issue in the case at hand is not with regard to merit of cases pending between the petitioner and his wife. The issue is with regard to restriction on travel of the petitioner beyond the shores of this nation on the strength of a LOC. LOC issued by Government of India is required to be noticed for a resolution of the lis. Before considering the issue, it is germane to notice the protagonist that would come about in the execution of LOC. LOC is issued by the Police or the Court in some circumstances. Therefore, they are referred as the originator. LOC is transmitted to the Bureau of Immigration to execute the said LOC and the person against whom LOC is issued is the subject of the LOC. Therefore, originator, originates LOC against the subject and transmits the same to the executant viz., Bureau of Immigration. This is the broad framework and how the LOCs are executed. The manner of execution  as  quoted hereinabove is not in dispute. Once LOC is issued, the Immigration Authorities are bound by the mandates of the said circular to stop the subject, from travelling beyond the shores  of  the nation for whatever purpose it would be and the Bureau of Immigration would continue to stop every time he seeks to travel,  till subsistence of LOC, as it has to be recalled or withdrawn by the originator, the State Police. It is thus a  powerful tool at the hands  of the State to direct Bureau of Immigration to stall the march of travel of a subject of LOC beyond the shores of the nation.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. In effect, right to travel, which is a vested right of Article  21 of the Constitution of India, would be taken away by the act of issuance of LOC. Therefore, it is germane to notice the genesis and progress of LOC issued from time to time. The LOC has no specific legal definition. Statutory sanction for issuance of LOC can  be  traced to Section 10A and 10B of the Passports Act, 1967. It is this stand that is being taken by Government of India in all the constitutional courts where LOCs have been questioned. The object for issuance of LOC is to ensure that the subject of LOC becomes available for interrogation, trial or any inquiry</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">In terms of paragraph-7(a) of the Official Memorandum recourse to LOC can be taken by </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">the investigating</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">agency</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">in cognizable </span><font face=\"Calibri, sans-serif\">offences under the IPC or any other penal laws where the accused was deliberately evading arrest or not appearing before the trial Court despite issuance of non-bailable warrant and other coercive measures and there was likelihood of the accused leaving the country to evade trial/arrest. The Investigating Officer who investigates into a crime would make a written request for issuance of LOC to the officer notified in the circular giving details  and reasons for seeking LOC. The competent officer alone has  the  power to give directions for opening LOC by passing an order in   that respect. The subject against whom the LOC is issued must join investigation by appearing before the investigating officer or should surrender before the Court concerned or to satisfy the Court that LOC was wrongly issued against him. LOC may be withdrawn by the authority that issued and also can be rescinded by the trial Court where the case is pending or having jurisdiction over the concerned police station on an application by the subject. This is the broad frame work as to how LOC generates. </font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10. After issuance of the aforesaid official memorandum several official memoranda have been issued by Union Government. The latest that is said to be in operation is the one issued on 22-02-2021 which is in furtherance of the judgment rendered by   the High Court of Delhi in various cases On a coalesce of the afore-quoted clauses of guidelines of  the official memorandum of 2010 read with the one issued in 2021,   LOC against a subject can be issued in cognizable offences where  the accused is deliberately avoiding arrest and not appearing before the trial Court despite non-bailable warrant and other coercive measures being taken; despite all of which there was likelihood of the accused leaving the country to evade trial or his arrest. The guidelines also indicate that in exceptional cases LOC can be issued even in cases where the guidelines do not cover whereby the departure of a person from India may be declined if such a person   is detrimental to the sovereignty or security or integrity of India or detrimental to the bilateral relations with any country or economic interest of India, if such person is allowed to leave the shores of the nation. The guidelines cover all the circumstances for issuance, subsistence and deletion of LOC. The guidelines also indicate certain duties to be performed by the originator. The originator has to inform the Bureau of Immigration if the LOC is challenged, stayed  by a concerned Court or a Court issues any directive with regard to the LOC whereby the LOC must be sought to be amended  or  deleted by the originator. Therefore, issuance of LOC in terms of   the official memorandum does take away the right of a person to travel. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">11. The contention of the learned counsel appearing for the petitioner, that the petitioner should  be afforded an  opportunity or a prior notice pursuant to issuance of LOC is unacceptable, as the frame work of LOC itself bars such notice to be issued.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Therefore, the contention of the learned counsel for the petitioner that a notice ought to be issued to the subject of the LOC prior to issuance of LOC deserves to be rejected. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>Even if it is construed that procedure established by law  by way of official memorandum, right to travel being curtailed against the subject of the LOC, he would at least become entitled to a copy of the LOC, not at any time prior to his being stopped from travelling abroad, but only at the time when he is stopped from travelling out the shores of this nation. The subject of the LOC  would then become aware as to why his liberty to travel, which is a facet of fundamental right is being taken away. The contention of Government of India that a copy of the LOC need not be furnished  to the subject at any time before getting apprehended is acceptable only upto the point that he gets apprehended. At the time when he  is stopped and handed over to the originator, he is, in the  considered view of this Court, entitled to know why his travel is being stopped with a copy of the LOC handed over to his hands.  This becomes the only requirement of principles of natural justice in the cases that emanate from the LOC. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. If the facts of the case are considered on the bedrock of what is considered hereinabove, it would depict that, the petitioner wants to travel on account of his official duty. The case registered against him no doubt is for offences punishable under the POCSO  Act and the case is not stayed or  quashed by any competent court of law, since the impugned crime is neither eclipsed nor extinguished, by any competent judicial fora, the prayer of the petitioner for a direction to recall the LOC cannot be granted. All  that the petitioner would be entitled to, in such a case,  would be  the knowledge of the reason for stalling his travel i.e., a copy of the LOC issued against him<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>There is no condition restricting his travel. An accused who is enlarged on bail should be made known as to  why his travel is  being interrupted. Therefore, the supply of the copy of LOC along with request from the originator is sine qua non for execution of  the LOC. Therefore, it is for the originator to furnish the copy and the reasons to the executant and the executant shall furnish the same to the subject of the LOC, not at any time earlier, but at the  time when the subject of the LOC would be subjected to rigors of  the LOC. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14. O R D E R</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>The Criminal Petition is disposed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3048cad68ebdead62c37563ab6fa4d68.JPG', 'd238aa4db0e6a64debb15b4bc64a8064.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-29', 1, '', '', '2022-08-30 00:10:09', '2022-08-29 14:42:51'),
(2128, 'DglsOCIv5BU1WOXdbmr1phEUG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\"Bhang is a traditional drink and the same is neither a narcotic drug nor a psychotropic substance unless it is prepared out of the substance of Ganja\'. - Karnataka High Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Roshan Kumar Mishra Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 6611 of 2022 decided on 26 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Natarajan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">This petition is filed by the petitioner-accused under Section 439 of Cr.P.C. for granting regular bail in Crime No.143/2022 registered by Begur Police Station, Bengaluru for the offence punishable under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short \'NDPS Act\').</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Having heard the arguments and on perusal of the records, which reveals, the petitioner was arrested by the Police and seized cannabis i.e., ganja weighing 400 grams which is not a commercial quantity. However, the learned High Court Government Pleader submitted that the Bhang is prepared out of the ganja leaves which comes under the definition 2(iii)(c) of NDPS Act. The learned counsel for the petitioner has relied upon the judgment of the Bombay High Court in the case of Madhukar vs. The State of Maharashtra reported in 2002 SCC OnLine Bombay 1271, whereas, the Bombay High Court while considering with regard to Bhang has stated that it is not covered under the NDPS Act, therefore, acquitted the accused for possessing the Bhang, but, convicted for the possession of ganja. Similarly, the petitioner counsel has relied upon the another judgment of Punjab and Haryana High Court in the case of Arjun Singh vs. State of Haryana reported in 2004 SCC Online P&H 828, wherein, the Punjab and Haryana High Court has also acquitted the accused persons in the appeal as the Bhang is not covered under the definition of NDPS Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. On bare reading of the provision under Section 2(iii)(a) and (b) that charas and ganja or (c) i.e., any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom, there is no scientific evidence before this Court to show that the Bhang is prepared out of either charas or ganja or ganja leaves. Since ganja leaves and seeds are excluded from the definition of ganja and no where in the NDPS Act the Bhang is referred as a prohibited drink or prohibited drug. Even the State Government has not made any rules under the NDPS and mentioned about the Bhang as prohibitory drug or issued any notifications in respect of Bhang. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. It is worth to mention that the Bhang is a traditional drink, most of the people used to drink in North India especially near the Shiva temples and it is also available in Lassi shops like all other drinks. That apart, the said Bhang were sold in the market with branded names. Therefore, until the receipt of forensic science lab report, in order to confirm that this bhang is prepared out of the by the charas or ganja, the Court cannot come to any conclusion that the bhang is prepared out of the substance of ganja. Therefore, at present, I am agreeing with the judgments of the Bombay High Court as well as Punjab and Haryana High Court in the above said decisions that bhang is not covered under the NDPS Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. Therefore, I am of the view that the petitioner is in custody for more than two months and FSL report is still awaited and though the investigation is pending, but the ganja in possession was only 400 grams, therefore, by imposing certain conditions, if bail is granted to the petitioner, no prejudice would be caused to the prosecution case. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Accordingly, criminal petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '80fafcee9661f436603988f7ab66eb4a.JPG', 'f4641a3ca282f937277717597e674b85.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-30', 1, '', '', '2022-08-30 00:30:01', '2022-08-30 07:19:23');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2130, 'b4IYcpZrAkRa8KXMcfFl0aVcp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Payment of land acquisition compensation cannot be delayed on the ground that there is a dispute pending between the acquiring body and the Income Tax Department. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Hegde and Golay Pvt Ltd Vs Special Land Acquisition Authority and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 22773 of 2021 decided on 2 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The petitioner claims to be a lease cum sale agreement holder for 7 acres 1 gunta of land in Sy.Nos.81/1, 81/2A, 81/2B 82/4A and 82/2P situated at Doddakallasandra Village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore Urban District. The said lease cum sale agreement has been executed by respondent No.3-KIADB in favour of the petitioner on 13.01.2014. One other survey number in Sy.No.82/4B(P) being omitted in the lease cum sale agreement, a rectification deed came to be executed on 10.12.2014. Both the lease cum sale agreement as well as rectification deed has been registered before the jurisdictional Sub Registrar.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. A portion of the property was sought to be acquired for the project of Bengaluru Metro established by the Bengaluru Metro Rail Corporation Limited under the provision of The Karnataka Industrial Areas Development Act (KIADB Act). The final notification under Section 28(4) of KIADB Act came to be issued acquiring 13.40 sq.mtrs in Sy.No.81/1, 171.40 sq.mtrs in Sy.No.81/2B, 921.84 sq.mtrs in Sy.No.81/2A and 1049.82 sq.mtrs in Sy.No.8/1. Certain errors having been crept in the said errors were rectified in another final notification dated 16.06.2015. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. The respondent No.1-Special Land Acquisition Officer has determined the compensation payable towards the above acquisition at Rs.13,68,60,419/- and made payment of the same to respondent No.3-KIADB on account of the fact that KIADB was shown as owner of the land being the lessor of the said property in favour of the petitioner.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. Based on the averments made, the points that would arise for consideration are:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. Whether the amount deducted under Section 194-LA of the Income Tax Act and remitted to the account of the respondent would constitute the income of the respondent?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 2. Whether the respondent can delay payment of the amounts due to the petitioner on the ground that there is a dispute pending between the respondent and the Income tax department? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. What order?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>ANSWER TO POINT NO.1: Whether the amount deducted under Section 194-LA of the Income tax Act and remitted to the account of the respondent would constitute the income of the respondent?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.1. In the present case, the land belonging to the petitioner was acquired under the KIAD Act for BMRCL as a beneficiary, the acquisition being complete and award being passed, BMRCL having been called upon to remit the award, the BMRCL remitted the amount with the SLAO. Thus, insofar as BMRCL is concerned all that BMRCL was required to do was completed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.5. The amount which has been remitted with the income tax department could be adjusted towards any income tax dues of the KIADB and in the event of amount remitted being more than any income tax dues, the assessee can claim for refund of that excess amount. Needless to say that if there is no income tax payable, then the entire amount which has been remitted could be sought for as refund by the assessee. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">15.6. In view of the above, not only is the amount remitted as part of the income but the assessee could always seek for refund of the amounts if </font></span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">in excess of income tax dues. Thus, I am of the considered opinion that the amount though remitted to the income tax department, the amount stands to the credit of KIADB and as such, would form part of income of the KIADB. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">16.</span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif; white-space: pre;\">	</span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">ANSWER</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">TO</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">POINT</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">NO.2:</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">Whether</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">the respondent can delay payment of the amounts due to the petitioner on the ground that there is a dispute pending between the respondent and the Income tax  department?</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>16.9. I am unable to accept the ‘out of pocket’ argument since the amount already stands to the credit of the KIADB and there would be no question of being ‘out of pocket’. If the KIADB is right in its submission, the amount standing to its credit will be refunded. If the KIADB is wrong in its submission, the amount standing to its credit will be appropriated for income tax dues. Thus, the concept of ‘pay when paid’ is alien to the transaction at hand and is unacceptable or sustainable.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b> 16.10. Hence, I answer point No.2 by holding that the respondent KIADB cannot delay payment of the amounts due to the petitioner on the ground that there is a dispute pending between the respondent and the Income Tax Department.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b> 17.<span style=\"white-space:pre\">	</span>POINT NO.3: What Order ?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b> 17.1. In view of the above, the petition is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e29d29789fea92e6e671d4c68ac51d05.JPG', 'bfdaee11f902cebf6301720d6c7056b9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-30', 1, '', '', '2022-08-30 00:55:10', '2022-08-30 13:00:03'),
(2129, 'LnMKavEzAkGJhLev3BpB2WiXL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'MVC claim. \'Pay and recovery\' principle applies even when  owner of vehicle contests claim petition or has preferred appeal against award. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shivanna Vs Nunuyappa Muniswamy.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Misc. First Appeal 6334 of 2014 decided on 1 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. However, learned counsel for the Insurer submits that the principle of pay and recovery cannot be applied if the owner has entered appearance or the owner has preferred an appeal. The contention sought to be advanced is that the principle of pay and recovery will have to be applied only when there is no contest by the Insured or the Insured has accepted the award and has not preferred any appeal. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">9. In my view, this argument is completely misconceived. The Supreme Court in more than one case has held that the principle of pay and recovery is applicable in cases where the vehicle was insured and there was a breach of the policy conditions. It is settled law that the Insurer is bound to indemnify the insured in the event of an accident occurred out of the use of the motor vehicle even if it establishes its defence that there was a breach of the policy conditions.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. It has also been held that whenever the Insurer puts- forth a defence that it is not liable by successfully proving its defence, the Apex Court has held that they would still be liable to pay the compensation to the claimant and they would be at liberty to recover the compensation that they have paid by proceeding against the insured who had contravened the policy conditions. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. This, basically means that whenever an accident occurs out of the use of a motor vehicle, which is insured, the Insurer would have to pay the compensation to the victim of the motor vehicle accident, even if it is entitled to avoid the liability and it would thereafter be at liberty to recover the same from the owner of the offending vehicle. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. In the light of this settled legal proposition, the argument that if the owner has entered appearance, the principle of pay and recovery would not apply cannot be advanced at all.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '722473d028040361109576ce79f455fd.JPG', '00a75c3ae8f15f8132980ee5781a5125.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-31', 1, '', '', '2022-08-30 00:39:51', '2022-08-31 04:22:42'),
(2131, 'NGpz5YHCO8W3EyNxPAYs9Ze0p', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Workmen’s Compensation Act. There is no bar to enhance compensation invoking Order XLI Rule 33 of the CPC even in the absence of an appeal by the claimants. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Branch Manager Oriental Insurance Co Ltd Vs Tahaseentaj and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.F.A 23205 of 2011 decided on 26 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The factual matrix of the case of the claimants before the Commissioner is that deceased Shamiulla, on 26.05.2009 when the husband of the Tahaseentaj (claimant/respondent No.1) was travelling in a lorry bearing registration No.KA-05/B-7009 as a second driver along with his son Irfan and the said vehicle was driven by his another son Majju @ Majjumeerpasha and the said vehicle met with an accident as a result of which Shamiulla and Irfan both sustained grievous injuries and succumbed to the injuries on the spot. Hence, wife of Shamiulla, son and daughter of Shamiulla filed two claim petitions before the Commissioner seeking for compensation for the death of Shamiulla and Irfan.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. Having heard the learned counsel appearing for the parties and also on perusal of the material available on record and keeping in mind the grounds urged in the appeal memo as well as the oral submissions of respective counsels, the points that arise for consideration of this Court are:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> i) Whether the Commissioner has committed an error in fastening the liability on the Insurance Company as contended by the Insurance Company in both the appeals? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ii) Whether the Commissioner has committed an error in holding that there exists relationship of employer and employee between the respective deceased and the owner of the vehicle? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>iii) Whether the Commissioner has committed an error in granting compensation in respect of the claim for the death of Irfan?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> iv)<span style=\"white-space: pre;\">	</span>Whether the claimants/respondents have made out a ground to invoke Order XLI Rule 33 of the CPC to enhance the compensation in the appeals filed by the Insurance Company? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>v)<span style=\"white-space: pre;\">	</span>What order?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Reg:Point Nos.1 to 3 </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. Having considered both oral and documentary evidence available on record and also the finding of the Commissioner that relationship of employer and employee has been established and that both the deceased were travelling in the vehicle as spare driver and cleaner, I do not find any error in the judgment and award.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 21. The main contention of the Insurance Company that both of them were unauthorized passengers, to substantiate the said defence no material is placed before the Court except examining the Administrative Officer RW-1 and hence I do not find any error in the order of the Commissioner for Workmen’s Compensation. Hence, I answer points Nos.1 to 3 in the negative.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Reg:Point No.4:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23. Having considered the submissions and material on record, there is no dispute with regard to invoking of Order XLI Rule 33 of the CPC to enhance the compensation even in the absence of an appeal by the claimants. But the same is applicable only if the claim of the claimants is not considered and not awarded just and reasonable compensation and if there is any error on the record, then only the Court can exercise the power under Order XLI Rule 33 of the CPC to meet the ends of justice. In the case of death of Shamiulla, an income of Rs.4,000/- p.m. has been taken into consideration as he was working as a driver and the same is based on the statutory provisions of the wages fixed. Hence, question of invoking Order XLI Rule 33 of the CPC does not arise. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24. In case of death of Irfan, it is the claim of the claimants that he was working as cleaner and the Court has to take note of the age of the deceased as 18 years. In terms of the PM report, he was aged about 15 years and this Court while considering the same has taken note of the age assessed by the doctor during the course of conducting the post morten and found the difference as per the records in terms of Ex.P.12 pertaining to Shamiulla there was a difference of 3 years and this Court taking note of the said fact the age of the deceased Irfan would be 18 years. The Insurance Company has not placed any documentary evidence except relying upon the post mortem. Having considered the said age and his avocation as a cleaner, the Commissioner has rightly taken the income of Rs.3,500/- and hence question of invoking Order XLI Rule 33 of the CPC does not arise, Hence, I do not find any force in the contention of the claimants’ counsel and I answer point No.4 as negative. Accordingly, I do not find any merit in the both the appeals. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i) The appeals are dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0b942a23aa1b913f3a348b72b991198f.JPG', 'da33a4a35e339b7d1054780fb984c441.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-01', 1, '', '', '2022-08-30 01:04:21', '2022-09-01 18:26:39'),
(2132, 'zyeuXUpEgO4m3aDRddkkf663g', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Residents in a housing project are entitled light and air, adherence to fire safety norms, privacy and basic civic amenities, access to well-ventilated areas which are not blocked by the presence of close towering constructions. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Supertech Limited Vs Emerald Court Owner Resident Welfare Association and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5041 of 2021 decided on 31 August 2021.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dhananjaya Y Chandrachud and Justice M.R. Shah. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>156 To summarize our findings, the documentary materials referred to and \r\nanalyzed in this judgment indicate that:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(i) The land allotted to appellant under the original lease agreement and the \r\nsupplementary lease deed constitute one plot; </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(ii) The land which was allotted through the supplementary lease deed forms a \r\npart of original Plot No 4, and would be governed by the same terms and \r\nconditions as the original lease deed; </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(iii) The sanction given by NOIDA on 26 November 2009 and 2 March 2012 for \r\nthe construction of T-16 and T-17 is violative of the minimum distance \r\nrequirement under the NBR 2006, NBR 2010 and NBC 2005;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(iv) An effort was made to get around the violation of the minimum distance \r\nrequirement by representing that T-1 together with T-16 and T-17 form one \r\ncluster of buildings in the same block. This representation was sought to be \r\nbolstered by providing a space frame between T-1 and T-17. The case that T1, T-16 and T-17 are part of one block is directly contrary to the appellant’s\r\nstated position in its representations to the flat buyers as well as in the \r\ncounter affidavit before the High Court. The suggestion that T-1, T-16 and T17 are part of one block is an after-thought and contrary to the record;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(v) After realizing that the building block argument would not pass muster,\r\nanother false case was sought to be set up with the argument that T-1 and T17 are dead end sides, thereby obviating the need to comply with the minimum distance requirements. This argument is belied by the \r\ncomprehensive report submitted by NBCC. The sides of T-1 and T-17 facing \r\neach other are not dead end sides since both the sides have vents/egresses \r\nfacing the other building;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(vi) By constructing T-16 and T-17 without complying with the Building \r\nRegulations, the fire safety norms have also been violated;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>\r\n<br>(vii) The first revised plan of 29 December 2006 contained a clear provision for a \r\ngarden area adjacent to T-1. In the second revised plan of 26 November \r\n2009, the provision for garden area was obliterated to make way for the \r\nconstruction of Apex and Ceyane (T- 16 and T – 17). The common garden \r\narea in front of T-1 was eliminated by the construction of T-16 and T-17. This\r\nis violative of the UP Apartments Act 2010 since the consent of the flat \r\nowners was not sought before modifying the plan promised to the flat owners; \r\nand</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(viii) T-16 and T-17 are not part of a separate and distinct phase (Phase–II) with \r\nseparate amenities and infrastructure. The supplementary lease deed \r\nstipulates that the they are part of the original project. Hence, the consent of \r\nthe individual flat owners of the original fifteen towers, individually or through \r\nthe RWA, was a necessary requirement under the UP Apartments Act 2010 \r\nand UP 1975 Act before T-16 and T-17 could have been constructed, since \r\nthey necessarily reduced the undivided interest of the individual flat owners in \r\nthe common area by adding new flats and increasing the number from 650 to \r\n1500; and </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(ix) The illegal construction of T-16 and T-17 has been achieved through acts of \r\ncollusion between the officers of NOIDA and the appellant and its \r\nmanagement.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>157 For the reasons which we have indicated above, we have come to the \r\nconclusion that:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(i) The order passed by the High Court for the demolition of Apex and Ceyane \r\n(T-16 and T-17) does not warrant interference and the direction for demolition \r\nissued by the High Court is affirmed;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>\r\n<br>(ii) The work of demolition shall be carried out within a period of three months \r\nfrom the date of this judgment;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>\r\n<br>(iii) The work of demolition shall be carried out by the appellant at its own cost\r\nunder the supervision of the officials of NOIDA. In order to ensure that the \r\nwork of demolition is carried out in a safe manner without affecting the \r\nexisting pleadings, NOIDA shall consult its own experts and experts from\r\nCentral Building Research Institute Roorkee</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(iv) The work of demolition shall be carried out under the overall supervision of \r\nCBRI. In the event that CBRI expresses its inability to do so, another expert \r\nagency shall be nominated by NOIDA;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>\r\n<br>(v) The cost of demolition and all incidental expenses including the fees payable \r\nto the experts shall be borne by the appellant;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(vi) The appellant shall within a period of two months refund to all existing flat \r\npurchasers in Apex and Ceyane (T-16 and T -17), other than those to whom \r\nrefunds have already been made, all the amounts invested for the allotted \r\nflats together with interest at the rate of twelve per cent per annum payable \r\nwith effect from the date of the respective deposits until the date of refund in \r\nterms of Part H of this judgment; and</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>\r\n<br>(vii) The appellant shall pay to the RWA costs quantified at Rs 2 crore, to be paid \r\nin one month from the receipt of this judgment.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b7cf1534111ea985317adb31a4cea550.jpg', '2830f0b9ed1ae90b01c442f5cc560ce3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-30', 1, '', '', '2022-08-30 01:33:08', '2022-08-30 16:02:09');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2133, 'ihutKtBc6KozRr27GhsJf1oXR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'The 2018 amendment to the Specific Relief Act is prospective in operation and cannot apply to those transactions that took place prior to its coming into force. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Katta Sujatha Reddy and another Vs Siddamsetty Infra Projects Pvt. Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5822 of 2022 decided on 25 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice N.V. Ramana, Justice Krishna Murari and Justice Hima Kohli.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. A conspectus of the facts necessary for the disposal of the appeals is as follows: One late D Narayana, predecessor­in­interest of the respondent no. 2 and 3, was the owner of an agricultural land bearing Sy. No. 300­309, admeasuring 141.05 acres, situated in Budvel Village, Rajendra Nagar Mandal, Ranga Reddy District, Hyderabad. The appellants herein acquired certain extent of the land from the aforesaid predecessor­in­interest through an agreement dated 19.03.1994. In pursuance to this agreement, two registered Joint GPA’S dated 28.03.1994 were executed in the name of the defendant Nos. 5 and 6 from the above­mentioned owners, for an extent of Acs. 127.27 gts. of land. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. The total suit scheduled property thus consists of Acs. 40.08 gts of land situated in Sy No. 301 (part), 302, 303, 304 (part) of Budvel Village, Rajendranagar Mandal, R.R. District for which a total consideration of Rs.40,20,000/­ was agreed upon between the parties. Out of the total agreed consideration, Rs.34,80,850/­ was paid by the purchaser to the vendors by way of cash and cheques, which fact is not disputed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>24. We have heard the learned Senior counsel appearing on either side and perused the entire material available on record. In the light of the arguments advanced, the following issues fall for consideration. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>A. Whether the suit for specific performance is barred by limitation? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>B. Whether the amended Section 10 of the Specific Relief Act is prospective or retrospective in operation? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>C. Whether the purchaser is entitled to the relief of specific performance? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>D. In any case, whether the purchaser is entitled to take benefit of Section 12 of the Specific Relief Act in view of the part payment made in respect of the contract?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> Issue A </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>35. In view of the aforesaid provisions, the vendors were entitled to rescind the contract as there was a breach of condition, i.e, ‘time was the essence’. Coming back to the point of limitation, it is clear that Article 54 of the Limitation Act mandates that in this case at hand, the date fixed for payment of consideration was three months from the date of the agreements (i.e. 26.03.1997 and 27.03.1997). In any case, the time period for filing the suit had commenced from 26/27.6.1997 and would have expired after three years, i.e., in the end of June 2000. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>37. In this context, we may note that Article 54 of the Limitation Act provides for two consequences based on the presence of fixed time period of performance. It is only in a case where the time period for performance is not fixed that the purchaser can take recourse to the notices issued and the vendors’ reply thereto. In the case at hand, the aforesaid circumstances do not come into play as a fixed time period was clearly mandated by Clause 3 read with Clause 23 of the agreements to sell, as explained above. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>38. In light of the above, we may note that the suit filed by the purchaser was clearly barred by limitation in view of the first part of Article 54 of the Limitation Act and no amount of payment of advance could have remedied such a breach of condition. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>39. Having come to the aforesaid conclusion, there would not have been any reason for this Court to continue the analysis on merits. However, we feel that even on merits, the purchaser’s case cannot be countenanced in law and we accordingly adumbrate on the following aspects </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Issue B </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>53. From the aforesaid decision, it is clear that when a substantive law is brought about by amendment, there is no assumption that the same ought to be given retrospective effect. Rather, there is a requirement for the legislature to expressly clarify whether the aforesaid amendments ought to be retrospective or not.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 54. In the light of the aforesaid discussion, it is clear that ordinarily, the effect of amendment by substitution would be that the earlier provisions would be repealed, and amended provisions would be enacted in place of the earlier provisions from the date of inception of that enactment. However, if the substituted provisions contain any substantive provisions which create new rights, obligations, or take away any vested rights, then such substitution cannot automatically be assumed to have come into force retrospectively. In such cases, the legislature has to expressly provide as to whether such substitution is to be construed retrospectively or not. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>55. In the case at hand, the amendment act contemplates that the said substituted provisions would come into force on such date as the Central Government may appoint, by notification in the Official Gazette, or different dates may be appointed for different provisions of the Act. It may be noted that 01.10.2018 was the appointed date on which the amended provisions would come into effect. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>56. In view of the above discussion, we do not have any hesitation in holding that the 2018 amendment to the Specific Relief Act is prospective and cannot apply to those transactions that took place prior to its coming into force. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ISSUE C </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>57. From the above, it is clear that the 2018 Amendment Act is prospective and cannot be applied to the present set of facts. Under the earlier law, grant of specific performance was discretionary. However, it was mandated that such discretion ought to be used in a principled manner without leaving scope for any arbitrary application. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>58. From the aforesaid, it is clear that the purchaser ought to have been vigilant in the case at hand to enforce his right and could not have been lackadaisical in his approach. From the facts, it is clear that the purchaser had entered into an agreement way back on 26/27.03.1997, which had a clause mandating completion of the contract by payment of the remaining consideration within three months. The aforesaid clause was drafted, as alluded to earlier, for providing one last opportunity for the purchaser to make good their lapse which had happened on the earlier occasion. In this context, the time for performance of the contract including the payment lasted till the month of June 1997.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>65. From the above it is clear that the purchaser did not voluntarily adhere to the time stipulation under the contract. In order to by­pass the condition of time being the essence, the purchaser invoked the standard of good faith. Aforesaid standard prescribes a higher duty of care for parties entering into a contract. Unless such duty is expressly stipulated, good faith standard cannot be implicitly read into any contract. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>68. In the light of the above, it is clear that Section 16(c) of the Specific Relief Act would only come into force if the purchaser was ready and willing to perform the contract within the three month period prescribed under Clause 3 of the agreements. The aforesaid conclusion is also bolstered by the fact that specific performance can only be granted when essential terms of contract are not violated in terms of Section 16(b). </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>69. From the above, we can safely conclude that the purchaser was not ready or willing to perform his part of the contract within the time stipulated and accordingly, specific performance cannot be granted for the entire contract. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>70. The last aspect which we need to consider in this matter is whether possession was with the purchaser after entering into agreements to sell in 1997. On this aspect, the High Court has decided in favour of the purchaser by relying upon the evidence of PW1 and the proceedings before the Revenue Authorities. However, we are of the opinion that the High Court has not duly considered the statement of PW1 in its proper perspective. PW1 during the course of cross­examination, has not specifically pointed out as to when was the purchaser put into possession of the property. PW1 has not further proved that there was any development cost incurred by him for developing the aforesaid land. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>73. If the agreement of sale is coupled with possession, it requires stamp duty and stamp duty has to be paid as per Schedule 1A of Article 47A of the Stamp Act. Further, asking for the relief of recovery of possession also shows that the plaintiff was not in possession of the property. The trial Court has rightly answered this point against the plaintiff and the Appellate Court, on an erroneous appreciation of the facts and law, reversed the said findings. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ISSUE D­ </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>74. The last aspect which has been argued before us concerns application of Section 12 of the Specific Relief Act, 1963. This issue arises from the fact that the purchaser is said to have paid 90 percent of the sale consideration and in lieu thereof, the High Court has held that the purchaser is entitled to ninety percent of the scheduled land. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>77. From the above, it is clear that there was no inability on part of the parties to perform the rest of the contract or the remaining part was waived. In this case, the purchaser breached the essential condition of the contract, which altogether disentitles him to claim specific performance. There is no doubt that the claim of purchaser is hit by delay and laches on their part as they did not take appropriate measures within the stipulated time and filing of the suit was delayed by almost five years. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>78. Therefore, we do not think that it is an appropriate case for granting relief to the purchaser in terms of Section 12 of the Specific Relief Act, 1963 as the claim of the purchaser is barred by delay, laches and limitation. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>79. We are of the firm opinion that the contract was breached due to the conduct of the plaintiff/purchaser, who were not willing to perform the contract after entering into a time sensitive agreement. In any case, it is an admitted fact that plaintiff had paid only part consideration. Though there is a forfeiture clause in the agreement, this Court with a view of rendering complete justice between the parties, deems it appropriate to direct the vendors/appellants to repay the said amount with interest @ 7.5% p.a. from the date such payment was made by the purchaser to the vendors, till the entire amount is paid back. We further direct the vendors to pay the entire amount to the credit of the suit account within six months from the date of receipt of a copy of the order. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>80. The appeal is allowed on the above terms and the parties are left to bear their own costs.</b></font><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '03f4de9f07fe028050fc4e2982decf6e.png', '8f10c32962cdd123d508af75708f9498.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-30', 1, '', '', '2022-08-30 01:50:20', '2022-08-30 09:01:15'),
(2134, 'Xjxc3ipbs3iU8UMEOPKgpw5sh', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Amount deducted under Section 194-LA of the Income Tax Act from and out of land acquisition compensation also forms part of compensation payable to owner. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">M/S Hegde and Golay Pvt Ltd Vs Special Land Acquisition Authority and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 22773 of 2021 decided on 2 August 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Suraj Govindaraj.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">2. The petitioner claims to be a lease cum sale agreement holder for 7 acres 1 gunta of land in Sy.Nos.81/1, 81/2A, 81/2B 82/4A and 82/2P situated at Doddakallasandra Village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore Urban District. The said lease cum sale agreement has been executed by respondent No.3-KIADB in favour of the petitioner on 13.01.2014. One other survey number in Sy.No.82/4B(P) being omitted in the lease cum sale agreement, a rectification deed came to be executed on 10.12.2014. Both the lease cum sale agreement as well as rectification deed has been registered before the jurisdictional Sub Registrar.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">3. A portion of the property was sought to be acquired for the project of Bengaluru Metro established by the Bengaluru Metro Rail Corporation Limited under the provision of The Karnataka Industrial Areas Development Act (KIADB Act). The final notification under Section 28(4) of KIADB Act came to be issued acquiring 13.40 sq.mtrs in Sy.No.81/1, 171.40 sq.mtrs in Sy.No.81/2B, 921.84 sq.mtrs in Sy.No.81/2A and 1049.82 sq.mtrs in Sy.No.8/1. Certain errors having been crept in the said errors were rectified in another final notification dated 16.06.2015.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">4. The respondent No.1-Special Land Acquisition Officer has determined the compensation payable towards the above acquisition at Rs.13,68,60,419/- and made payment of the same to respondent No.3-KIADB on account of the fact that KIADB was shown as owner of the land being the lessor of the said property in favour of the petitioner.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">13. Based on the averments made, the points that would arise for consideration are:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">1. Whether the amount deducted under Section 194-LA of the Income Tax Act and remitted to the account of the respondent would constitute the income of the respondent?</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">2. Whether the respondent can delay payment of the amounts due to the petitioner on the ground that there is a dispute pending between the respondent and the Income tax department?</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">3. What order?</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">15.<span style=\"white-space: pre;\">	</span>ANSWER TO POINT NO.1: Whether the amount deducted under Section 194-LA of the Income tax Act and remitted to the account of the respondent would constitute the income of the respondent?<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">15.1. In the present case, the land belonging to the petitioner was acquired under the KIAD Act for BMRCL as a beneficiary, the acquisition being complete and award being passed, BMRCL having been called upon to remit the award, the BMRCL remitted the amount with the SLAO. Thus, insofar as BMRCL is concerned all that BMRCL was required to do was completed.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">15.5. The amount which has been remitted with the income tax department could be adjusted towards any income tax dues of the KIADB and in the event of amount remitted being more than any income tax dues, the assessee can claim for refund of that excess amount. Needless to say that if there is no income tax payable, then the entire amount which has been remitted could be sought for as refund by the assessee.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\">15.6. In view of the above, not only is the amount remitted as part of the income but the assessee could always seek for refund of the amounts if </font></span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">in excess of income tax dues. Thus, I am of the considered opinion that the amount though remitted to the income tax department, the amount stands to the credit of KIADB and as such, would form part of income of the KIADB.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">16.</span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif; white-space: pre;\">	</span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">ANSWER</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">TO</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">POINT</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">NO.2:</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">Whether</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">the respondent can delay payment of the amounts due to the petitioner on the ground that there is a dispute pending between the respondent and the Income tax  department?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\"><br></font>16.9. I am unable to accept the ‘out of pocket’ argument since the amount already stands to the credit of the KIADB and there would be no question of being ‘out of pocket’. If the KIADB is right in its submission, the amount standing to its credit will be refunded. If the KIADB is wrong in its submission, the amount standing to its credit will be appropriated for income tax dues. Thus, the concept of ‘pay when paid’ is alien to the transaction at hand and is unacceptable or sustainable.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">16.10. Hence, I answer point No.2 by holding that the respondent KIADB cannot delay payment of the amounts due to the petitioner on the ground that there is a dispute pending between the respondent and the Income Tax Department.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">17.<span style=\"white-space: pre;\">	</span>POINT NO.3: What Order ?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">17.1. In view of the above, the petition is allowed.</span></span></p>', 'fe53a8ea944d5fc0362aa58ad117208f.jpg', '8b48e7f25f2605d591166f08f9f7c47f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-01', 1, '', '', '2022-08-30 02:41:04', '2022-09-01 12:55:35'),
(2135, 'bI0qEBRsmRlY7F8f1O09pQcXB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Punctuation marks are minor elements in the interpretation of statute and by themselves do not control meaning of statute when the meaning is otherwise obvious. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b style=\"font-size: 12pt;\">Barun Kumar and others Vs State of Jharkhand and others</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5812 of 2022 decided on 25 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ajay Rastogi and Justice C.T. Ravikimar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b>4. That in terms of the Bihar Re­Organisation Act, 2000, Bihar Civil Services (Executive Branch) and Bihar Junior Civil Services (Recruitment) Rules, 1951(hereinafter referred to as the “Rules 1951”) was adopted by the State of Jharkhand vide notification no.6184 dated 9th November, 2002 and accordingly, the State of Jharkhand held its Combined Civil Service Examination in terms of the Rules 1951. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b>28. The undisputed facts which may be noticed for completion of facts referred to supra clearly manifest that the 6th Combined Civil Services Examination was notified by the Commission on 6th October, 2016 for filling up of 326 posts of different services under the State of Jharkhand and recruitment is to be made in terms of the Bihar Civil Service (Executive Branch) and Rules, 1951 which were adopted by the State of Jharkhand by notification dated 9th November 2002. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b>29. Before the 6th Combined Civil Services Examination came to be initiated, there was lot of discussion prior thereto, and after the acceptance of Dubey Committee’s report with certain modifications by the Commission, finally came to be approved by the State Government vide its notification dated 25th September, 2013 and after going through the process of selection followed with the recommendations made by the Commission, appointments are made by order dated 29th July, 2020 and after completing field training, they have been posted to their respective places of posting. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b>30. It may be apposite to note that the State of Jharkhand has now notified the rules framed in exercise of power conferred under proviso to the Article 309 of the Constitution, namely, the Jharkhand Combined Civil Services Examination Rules, 2021(hereinafter being referred to as the “Rules 2021”) and apart from the other provisions of the scheme of Rules, Rule 17 lays down the criteria of prescribing the minimum qualifying/aggregate marks to be obtained by the candidate in the main examination for preparing the merit list for the purpose of interview and in furtherance to the Rules 2021, selection process has been initiated by respondent no. 3 holding 7th Combined Civil Services Examination, 2016 vide advertisement no. 1/2021 dated 8th February 2021. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b>37. So far as Rule 16 of Rules, 1951 is concerned, it is true that if we go through the bare punctuation marks which have been highlighted by the counsel for the respondents, it certainly makes a distinction between clause (a) and clause (b) but for proper interpretation and to make the scheme of rules workable, sometimes punctuation marks may give a different impression and that cannot be taken in isolation for the interpretation of the scheme of rules. If we read clause (a) and (b) of Rule 16 conjointly, it clearly manifests that clause (a) is general and precise for the candidates who are participating in the written examination whereas clause (b) refers to the candidates who belong to Scheduled Castes and Scheduled Tribes leaving the discretion of the Commission to fix qualifying marks for Scheduled Castes/Scheduled Tribes but with restriction that shall not be higher than 35% in Bihar Civil Services(Executive Branch). </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b>38. The proviso added thereto relates to the stage for determining the suitability of the candidate, total marks obtained in the written examination has to be counted and not the marks obtained in any particular subject for preparing the list of candidates who qualify the written examination and this can be made further clear by taking note of Rule 17 of the Rules which casts an obligation upon the Commission to collate the marks obtained by the candidate in the written examination and the Commission shall arrange for vivavoce the candidates who have qualified the written examination according to Rule 16(a) or 16(b), as the case may be, and at this stage the Commission keeps a discretion and in exceptional circumstances may admit a member from the Scheduled Castes or Scheduled Tribes to the viva voce test, even if they have failed to qualify the minimum qualifying marks with the prior approval of the Government and this being the scheme of Rules, proviso to Rule 16 has to be read for both the clause (a) and (b) to Rule 16 and cannot be read in reference to clause (b) alone as held by the High Court under the impugned judgment. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b>39. So far as the two questions which have been answered by the High Court in reference to whether the marks obtained in Paper­I would be added in total marks or whether the merit list is to be prepared based on the total marks at the written examination or minimum qualifying marks in each of the subject papers of written examination are concerned, after examining clause 12 and 13 of the advertisement in particular, read with Rule 16 of Rules 1951, we are of the view that there is certainly an ambiguity in the advertisement itself. 43. In the instant case, the view which has been adopted by the Commission and that has been considered and held by the High Court in the impugned judgment may be better circumscribed but both are equally possible views and either of the one could not be ruled out or outrightly negated. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b>44. In the given situation, when one possible view has been acted upon by the Commission and pursuant to which the recommendations were made and after approval of the State Government, candidates have been appointed and are working for almost 2 years by this time, it will be unjust for this Court to now permit the Government to take a U­Turn in compliance of the impugned judgment, and non­suit the candidates who are working for sufficiently long time. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b>45. Though it has been observed by the High Court that equity may not be claimed by the candidates but this Court cannot be oblivious of the fact that such of the candidates who are working for sufficiently two years by this time and have completed their period of probation were not at fault at any point of time but because the interpretation acted upon by the Commission was not acceptable to the High Court, they became a victim and that apart, we are also of the view that what is being observed by the High Court may only be confined to 6th Combined Civil Services Examination, 2016 for the reason that the State has now introduced the scheme of Rules, 2021 and fresh process has been initiated under 7th Combined Civil Services Examination 2016. In the given circumstances, what has been observed by the High Court may be one of the propositions in interpreting clause 12 and 13 of the advertisement but what is being considered by the Commission in its right earnest also cannot be ruled out. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b>46. It is well known that punctuation marks by themselves do not control the meaning of the statute when its meaning is otherwise obvious. The ordinary rule is that punctuation mark is a minor element in the interpretation of statute, more so, when it is a case of subordinate legislation. If we go through the scheme of the Rules 1951, we are clear that proviso to Rule 16 has to be read in conjunction to both Clause (a) and (b) and not to clause (b) in particular as being observed by the High Court in the impugned judgment. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b>47. It may be noticed that the judgment in Joy Guria and others(supra) referred to by the High Court is in reference to the preliminary examination and the Division Bench under the impugned judgment was influenced by those observations while examining the scheme of the main examination held by the Commission pursuant to 6th Combined Civil Services Examination, 2016. To the contrary, it was to be interpreted independently on the basis of the scheme of Rules 1951 read with Clause 12 and 13 of the advertisement. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b>48. Consequently, the appeals deserve to succeed and accordingly allowed. The impugned judgment of the High Court dated 23rd February, 2022 is hereby quashed and set aside. No costs. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Nunito, sans-serif; font-size: medium;\"><b>49. Pending application(s), if any, shall stand disposed of.</b></span><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '56fcd0e5a2326e29116aa32203fc95bf.jpg', 'cca30d409c37c27053fa6eb94adeb8ba.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-06', 1, '', '', '2022-08-30 02:49:50', '2022-09-06 14:54:56');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2136, 'aS7vnFU9ph6ohahcBFJHNMgx6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Income Tax Act. Merely stating a bad and doubtful debt as an irrecoverable write off without appropriate treatment in accounts, as well as non-compliance with conditions in Section 36 would not entitle the assessee to claim a deduction. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b style=\"font-size: 12pt;\">PR. Commissioner of Income Tax Vs Khyati Realtors Pvt Ltd.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5804 of 2022 decided on 25 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Uday Umesh Lalit, Justice S. Ravindra Bhat and Justice Sudhanshu Dhulia.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The assessee carries on real estate development business, trading in\r\ntransferable development rights (TDR) and finance. In respect of its return for the\r\nassessment year 2009-2010, the Assessment Officer (hereinafter, “AO”) issued a </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">notice under Section 143(2) of the Income Tax Act 1961 (hereinafter “Act” or “IT\r\nAct”) on 18.08.2010, and also under Section 142(1) of the Act, calling for various\r\ndetails. The assessee filed its response thereto. The scrutiny assessment was\r\ncompleted by the AO under Section 143(3) on 30.12.2011, determining the total\r\nincome of the assessee at ? 87,880/-. The assessee contended that an amount of ? 10\r\ncrores was deposited with one M/s C. Bhansali Developers Pvt. Ltd. towards\r\nacquisition of commercial premises two years prior to the assessment year in\r\nquestion (i.e., in 2007). It was contended that the project did not appear to make any\r\nprogress, and consequently, the assessee sought return of the amounts from the\r\nbuilder. However, the latter did not respond. As a result, the assessee’s Board of\r\nDirectors resolved to write off the amount as a bad debt in 2009. It was also\r\ncontended that the amount could also be construed as a loan, since the assessee had\r\n‘financing’ as one of its objects.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. The CIT(A) confirmed the disallowance on account of bad debts and interest.\r\nA further appeal was preferred to the ITAT, which allowed the assessee’s plea. The\r\nRevenue sought an appeal to the Bombay High Court under Section 260A of the IT\r\nAct. The Bombay High Court ruled that no question of law requiring a decision arose\r\nin the appeal and consequently declined to entertain the Revenue’s plea.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. The Revenue contended that Section 36(1)(vii) of the Act gives benefit to the\r\nassessee to claim a deduction on any bad debt or part thereof, which is written off as\r\nirrecoverable in the accounts of the assessee for the previous year. This benefit is\r\nsubject to Section 36(2) of the Act. It is obligatory upon the assessee to prove to the\r\nAO that the case satisfies the ingredients of both Section 36(1)(vii) and Section 36(2)\r\nof the Act. It was urged that the ITAT and the High Court erred in accepting the\r\nassessee’s contentions, which were not supported by any material or document. It\r\nwas submitted that the assessee’s claim of giving ? 10 crores to M/s C. Bhansali\r\nDevelopers Pvt. Ltd. for the alleged project was not substantiated by any material.\r\nAdditionally, the assessee had also pleaded that the amount was given as a ‘loan’ to\r\nthe developer, which was a different plea altogether. This plea was bereft of any\r\nmaterial as to the terms of the loan, or the conditions of repayment, including\r\ninterest. It was submitted that by virtue of Section 36(2) of the Act, the AO has to\r\nbe satisfied that the action of writing off is on sound and reasonable basis, and not a\r\ndevice. Reliance was placed on Catholic Syrian Bank Ltd. v. Commissioner of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Income Tax, Thrissur3\r\nto urge that the assessee is obligated to prove to the AO that\r\nthe claim satisfies the ingredients of both Section 36(1)(vii) on the one hand and\r\nSection 36(2) of the Act as well.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. In the present case, the record shows that the accounts of the assessee nowhere\r\nshowed that the advance was made by it to M/s C. Bhansali Developers Pvt. Ltd. in\r\nthe ordinary course of business. Its primary argument was that the amount of ? 10\r\ncrores was given for the purpose of purchasing constructed premises. However, the\r\namount was written-off on 28.03.2009. As noted by the CIT(A), there was no\r\nmaterial to substantiate this submission, in respect of payment of the amount, the\r\ntime by which the constructed unit was to be given to it, the area agreed to be\r\npurchased, etc. Equally, in support of its other argument that the amount was given\r\nas a loan, the assessee nowhere established the duration of the advance, the terms\r\nand conditions applicable to it, interest payable, etc. The assessee conceded that it\r\nhad received interest income for the relevant assessment year. However, it could not\r\nestablish that any interest was paid (or shown to be payable in its accounts) for the\r\nsum of ? 10 crores. Furthermore, there is nothing on record to suggest that the\r\nrequirement of the law that the bad debt was written-off as irrecoverable in the\r\nassessee’s accounts for the previous year had been satisfied. Another reason why the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">amount could not have been written-off, is that the assessee’s claim was that it was\r\ngiven to M/s Bhansali Developers Pvt. Ltd. for acquiring immovable property – it\r\ntherefore, was in the nature of a capital expenditure.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. In view of the above discussion, it is held that the assessee’s claim for\r\ndeduction of ? 10 crore as a bad and doubtful debt could not have been allowed. The\r\nfindings of the ITAT and the High Court, to the contrary, are therefore, insubstantial\r\nand have to be set aside.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. The second issue relates to the admissibility of an expenditure as a deduction,\r\nwhich does not fall within the provisions of Sections 28 to 43, and is not capital in\r\nnature, but is laid out or spent exclusively for the purpose of business, under Section\r\n37 of the Act. A similar provision existed under the old Income Tax Act, 1922 as in\r\nthe case of provision for bad debts, by Section 10(2)11. This aspect was considered <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by this court in The Commissioner of Income Tax v. The Mysore Sugar Co., Ltd.\r\n12\r\nThe assessee there was engaged in production of sugar. It used to advance monies\r\nto cane growers in consideration of supply of sugarcane. Due to drought, the cane\r\ngrowers could not repay amounts advanced. The assessee claimed the outstanding\r\nto be bad debts, and sought to write them off. This was not allowed; the Income Tax\r\nOfficer held the expenditure to be capital in nature. The High Court however, set\r\naside that determination. This court confirmed the view of the High Court. However,\r\nthe court also examined the argument whether in such eventualities, the expenditure\r\ncould be claimed to be exclusively laid out for the purpose of business (under the\r\nprovision corresponding to Section 37(1) of the Act).</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. It is apparent that this court was satisfied that the disallowance of the amount,\r\non account of bad and doubtful debt, did not preclude a claim for deduction, on the\r\nground that the expenditure was exclusively laid out for the purpose of business. The\r\ncourt applied the test of whether the expense was incurred for business, or whether\r\nit fell into the capital stream. In the facts of the case, the tests were satisfied – the\r\nexpenditure was for the purpose of business, and did not fall in the capital stream.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. The assessee had relied on a few High Court judgments which have ruled that\r\neven if a claim for deduction under Section 36(1) is not allowed, the possibility of\r\nits exclusion under Section 37 cannot be ruled out. This court is of the opinion that\r\nas a proposition of law, that enunciation is unexceptional, since the heads of\r\nexpenditure that can be claimed as deduction are not exhaustive – which is the\r\nprecise reason for the existence of Section 37. Therefore, in a given case, if the\r\nexpenditure relates to business, and the claim for its treatment under other provisions\r\nare unsuccessful, application of Section 37 is per se not excluded.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. In view of the foregoing discussion, the Revenue’s appeal has to succeed. The\r\nimpugned judgment of the High Court and the order of ITAT are hereby set aside.\r\nThe appeal is allowed, in the above terms, without order on costs. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4f227251e6170998b2a3f1674cede34a.jpg', '11e676d8455a327220928fcf20ecb512.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-06', 1, '', '', '2022-08-30 03:03:45', '2022-09-06 10:47:25'),
(2138, 'QIL4evUyHonQ2fCKxkPr4raxs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'IBC prevails over Customs Act, 1961. Once moratorium is imposed, customs authority can only assess quantum of customs duty. It cannot initiate recovery of dues by means of sale/confiscation. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sundaresh Bhatt Vs Central Board of Indirect Taxes and Customs.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 7667 of 2021 decided on 26 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice N.V. Ramana, Justice J.K. Maheshwari, Justice Hima Kohli.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. A conspectus of the facts necessary for the disposal of the present appeal is as follows: ABG Shipyard (“Corporate Debtor”) was in the business of shipbuilding prior to the initiation of corporate insolvency proceedings against it. As a part of its business enterprise, it used to regularly import various materials for the purpose of constructing ships which were to be exported on completion. Some of these goods were stored by the Corporate Debtor in Custom Bonded Warehouses in Gujarat and Container Freight Stations in Maharashtra. Bills of entry for warehousing were submitted at the relevant time. The Corporate Debtor also took the benefit of an Export Promotion Capital Goods Scheme (“EPCG Scheme”) and was granted a license under the said scheme (“EPCG License”) with respect to the said warehoused goods. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. On 01.08.2017, the National Company Law Tribunal, Ahmedabad (“NCLT”) passed an order commencing the Corporate Insolvency Resolution Process (“CIRP”) against the Corporate Debtor, and the appellant was appointed as the Interim Resolution Professional. In the same order, the NCLT also declared a moratorium under Section 13(1)(a) of the IBC.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. Thereafter, the respondent filed claims before the appellant for goods warehoused in both Gujarat and Maharashtra on 20.05.2019, 27.05.2019 and 29.05.2019 under the IBC. On 27.06.2019, the appellant informed the respondent through its officers that liquidation proceedings had commenced against the Corporate Debtor and that the goods were to be released to the appellant</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10. The NCLT considered Section 238 of the IBC and held that the non­obstante clause in the IBC, being part of a subsequent law, shall have overriding effect on proceedings under the Customs Act. Further, looking to the waterfall mechanism under Section 53 of the IBC, the NCLT held that distribution of proceedings from sale of liquidation of assets shall also prevail over the Customs Act provisions. The NCLT held that, as Government dues, the claims by the respondent would have to be dealt with in accordance with Section 53 of the IBC. Apart from the above, the NCLT also placed reliance on a circular issued by the Central Board of Excise and Custom, being Circular No. 1053/02/2017­ CX dated 10.03.2017 relating to Section 11E of the Central Excise Act, 1944. The abovementioned circular clarifies that dues under the Central Excise Act would have first charge only after the dues under the provisions of the IBC are recovered. As Section 142A of the Customs Act is pari materia with Section 11E of the Central Excise Act,1944, the NCLT applied the same rationale to interpret the said section in holding that the provisions of the IBC have priority. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15. The NCLAT held that the Customs Act is a complete Code which provides that warehoused goods cannot be released until the import duties are paid. Mere filing of claims under ‘Form C’ by the respondent before the appellant cannot be taken to signify the relinquishment of the right of the respondent over the warehoused goods.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16. On the issue of priority of IBC over the Customs Act, the NCLAT held that the issue did not arise in the present case, as the goods in question were imported prior in time to the initiation of the CIRP. While the containers were imported between 2012 to 2015, the CIRP was initiated only in 2017 and the Corporate Debtor went into liquidation in 2019. By not paying the import duties, the Corporate Debtor had lost the right to the warehoused goods prior to the initiation of the CIRP. The NCLAT held that these warehoused goods stand on a different footing and cannot be considered assets of the Corporate Debtor which were subject to the IBC provisions</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20. In light of the arguments advanced and the documents submitted before this Court, we are called upon to answer two important questions which arise for our consideration: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>a) Whether the provisions of the IBC would prevail over the Customs Act, and if so, to what extent?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>b) Whether the respondent could claim title over the goods and issue notice to sell the goods in terms of the Customs Act when the liquidation process has been initiated?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>21. It must be noted that this question assumes significance as the warehoused goods belonging to the Corporate Debtor which is under liquidation, are sought to be sold by the Customs Authorities in lieu of custom dues. The respondent has relied on certain provisions of the Customs Act to assume such power. This has been vehemently opposed by the appellant herein, who has argued that once the insolvency process has been initiated against the Corporate Debtor, the IBC becomes squarely applicable and overrides any other enactment giving priority to the charges on the property. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>26. When a person chooses to warehouse the goods, he ought to execute a bond in terms of Section 59 of the Customs Act. Such warehoused goods can subsequently be either cleared for home consumption or can be exported.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>27. Section 61 of the Customs Act mandates the time period allowed for warehousing. For example, in the case of capital goods intended for a 100% export­oriented undertaking, warehousing is permitted till such goods are cleared from the warehouse. In case of goods not intended for such export­oriented purpose, a time period of one year is prescribed in terms of Section 61(1)(c) of the Customs Act. The provision also provides for an extension which could be granted by the appropriate authority, for a period of not more than one year. Under Section 61(2) of the Customs Act, provision is made to charge interest on those goods which are warehoused beyond the period granted.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>28. Section 71 of the Customs Act provides that no warehoused goods shall be taken out of the warehouse, except on clearance for home consumption or export or for removal to another warehouse, or as provided by the Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>31.  In the present case, the Corporate Debtor as part of its business used to regularly import and warehoused goods in the custom bonded warehouses from at least 2011. As has already been mentioned above, the CIRP process commenced against the Corporate Debtor on 01.08.2017 by the order of the NCLT. It appears from the record that no notices were issued by the respondent against the Corporate Debtor with respect to the warehoused goods prior to initiation of the CIRP. In fact, all the duty demand notices issued by the respondent were from March 2019 onwards. It is in this context that it is necessary for us to ascertain whether the IBC overrides the Customs Act or viceversa</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>36. Section 14 of the IBC prescribes a moratorium on the initiation of CIRP proceedings and its effects. One of the purposes of the moratorium is to keep the assets of the Corporate Debtor together during the insolvency resolution process and to facilitate orderly</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">completion of the processes envisaged under the statute. Such measures ensure the curtailing of parallel proceedings and reduce the possibility of conflicting outcomes in the process.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">From the above, it can be seen that one of the motivations of imposing a moratorium is for Section 14(1)(a), (b), and (c) of the IBC to form a shield that protects pecuniary attacks against the Corporate Debtor. This is done in order to provide the Corporate Debtor with breathing space, to allow it to continue as a going concern and rehabilitate itself. Any contrary interpretation would crack this shield and would have adverse consequences on the objective sought to be achieved. </b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>44. Therefore, this Court held that the authorities can only take steps to determine the tax, interest, fines or any penalty which is due. However, the authority cannot enforce a claim for recovery or levy of interest on the tax due during the period of moratorium. We are of the opinion that the above ratio squarely applies to the interplay between the IBC and the Customs Act in this context. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>45. From the above discussion, we hold that the respondent could only initiate assessment or re­assessment of the duties and other levies. They cannot transgress such boundary and proceed to initiate recovery in violation of Sections 14 or 33(5) of the IBC. The interim resolution professional, resolution professional or the liquidator, as the case may be, has an obligation to ensure that assessment is legal and he has been provided with sufficient power to question any assessment, if he finds the same to be excessive. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>46. There is another aspect of this case that needs to be highlighted to portray the inconsistency of the Customs Act vis­à­vis the IBC during the moratorium period. In the present case, the demand notice dated 11.07.2019 was issued by the respondent under Section 72 of the Customs Act, in clear breach of the moratorium imposed under Section 33(5) of the IBC. Issuing a notice under Section 72 of the Customs Act for non­payment of customs duty falls squarely within the ambit of initiating legal proceedings against a Corporate Debtor. Even under the liquidation process, the liquidator is given the responsibility to secure assets and goods of the Corporate Debtor under Section 35(1)(b) of IBC.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>47. As laid down earlier, the Customs Act and IBC can be read in a harmonious manner wherein authorities under the Customs Act have a limited jurisdiction to determine the quantum of operational debt – in this case, the customs duty – in order to stake claim in terms of Section 53 of the IBC before the liquidator. However, the respondent does not have the power to execute its claim beyond the ambit of Section 53 of the IBC. Such harmonious construction would be in line with the ruling in Gujarat Urja Vikas Nigam Ltd. v. Amit Gupta, (2021) 7 SCC 209, wherein a balance was struck by this Court between the jurisdiction of the NCLT under the IBC and the potential encroachment on the legitimate jurisdiction of other authorities. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>49. Such interpretation clearly ignores the fact that there was no “abandonment of goods” which would authorize the Customs Authorities to initiate the adjudicatory process to transfer title to themselves. Before any goods can be declared to have been “abandoned”, the same must be adjudged by some authority after due notice. The position cannot be assumed or deemed. In the case at hand, no such adjudication or notice has been placed on record to suggest that such abandonment of the warehoused goods had taken place prior to the imposition of the moratorium.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>50. The NCLAT, by deciding the question of passing of title from the Corporate Debtor to the respondent authority, has clearly ignored the mandate of Section 72(2) of the Customs Act relating to sale. This interpretation of the NCLAT clearly ignores the effects of the moratorium under Sections 14 and 33(5) of the IBC. The fact is that the duty demand notice and notice under Section 72(2) of the Customs Act, were issued during the moratorium period, which has been completely ignored by NCLAT and has resulted in rendering the moratorium otiose.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>52. Interestingly, in the present case, on 20.05.2019, 27.05.2019, 29.05.2019 & 18.09.2019 the Customs Authorities filed Form C under Regulation 17 of IBBI Liquidation Process Regulation 2016 before the appellant/liquidator in order to stake claims for distribution of proceeds of sale in consonance with Section 53 of the IBC. The respondent authority, does a U­turn on filing such claims and instead, unilaterally decides to initiate recovery proceedings under Section 72(2) of the Customs Act. Further, the Customs Authority bypasses even the notice and adjudicatory requirements contemplated under Section 72(2) of the Customs Act and takes the position that there is a deemed transfer of title with respect to the assets as customs duty and other levies were not duly paid. Such a change in stance is clearly an afterthought, without there being any basis in law to by­pass the specialized procedure laid down under the IBC.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>53. For the sake of clarity following questions, may be answered as under:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>a) Whether the provisions of the IBC would prevail over the Customs Act, and if so, to what extent?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The IBC would prevail over The Customs Act, to the extent that once moratorium is imposed in terms of Sections 14 or 33(5) of the IBC as the case may be, the respondent authority only has a limited jurisdiction to assess/determine the quantum of customs duty and other levies. The respondent authority does not have the power to initiate recovery of dues by means of sale/confiscation, as provided under the Customs Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>b) Whether the respondent could claim title over the goods and issue notice to sell the goods in terms of the Customs Act when the liquidation process has been initiated?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>answered in negative.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>54 On the basis of the above discussions, following are our conclusions:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>i) Once moratorium is imposed in terms of Sections 14 or 33(5) of the IBC as the case may be, the respondent authority only has a limited jurisdiction to assess/determine the quantum of customs duty and other levies. The respondent authority does not have the power to initiate recovery of dues by means of sale/confiscation, as provided under the Customs Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ii) After such assessment, the respondent authority has to submit its claims (concerning customs dues/operational debt) in terms of the procedure laid down, in strict compliance of the time periods prescribed under the IBC, before the adjudicating authority.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>iii) In any case, the IRP/RP/liquidator can immediately secure goods from the respondent authority to be dealt with appropriately, in terms of the IBC. 55 Resultantly, we allow the appeal and set aside the impugned order and judgment of the NCLAT. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>There shall be no orders as to costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '44f331abd4db8ab16fcc4e67d5ed428e.jpg', '66e7e08f49bfcb05087dec7ccacfec1d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-02', 1, '', '', '2022-08-30 15:59:16', '2022-09-02 10:39:12');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2139, 'yijkzUfvymqpHkQk2K4gDwq38', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Including Teachers within Payment of Gratuity Act. Supreme Court upholds retrospective operation of the 2009 amendment from 3rd April 1997. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Independent Schools Federation of India Vs Union of India and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8162 of 2012 decided on 29 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sanjiv Khanna and Justice Bela M. Trivedi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The civil appeals by way of special leave, which impugn the\r\njudgements of the High Court of Allahabad- Lucknow Bench , the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">High Court of Gujarat , the High Court of Delhi , the High Court of\r\nBombay- Aurangabad Bench , the High Court of Punjab and\r\nHaryana , the High Court of Chhattisgarh- Bilaspur Bench and the\r\nHigh Court of Madhya Pradesh,-Indore Bench , as well as a batch\r\nof writ petitions under Article 32 of the Constitution of India, were\r\nheard together as they involve a common question – constitutional\r\nvalidity of the amendment to Section 2(e) and insertion of Section\r\n13A to the Payment of Gratuity Act, 19728\r\n, with retrospective effect\r\nfrom 3rd April 1997 vide the Payment of Gratuity (Amendment) Act,\r\n2009</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The PAG Act enacted and enforced with effect from 16th September\r\n1972, requires payment of gratuity to an employee after he has\r\nrendered continuous service for not less than 5 years, on his </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">superannuation, retirement or resignation or on his death or\r\ndisablement due to accident or disease. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the present case, we are only concerned with clause (c)\r\nand not clauses (a) and (b) to sub-section (3) to Section 1 of the\r\nPAG Act. As per clause (c), the PAG Act applies to an\r\nestablishment or a class of establishments in which ten or more\r\nemployees are employed, as the Central Government may, by\r\nnotification, specify on this behalf. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. In exercise of powers conferred by clause (c) to Section 1(3) of PAG\r\nAct vide notification No. S.O. 239, the provisions of the PAG Act\r\nwere made applicable to the “local bodies” in which ten or more\r\npersons are employed, as a class of establishments, with effect\r\nfrom 8th January 1982. As a result, the schools under the local\r\nbodies with ten or more employees became liable to pay gratuity to\r\ntheir employees. However, the notification did not apply to private\r\nschools.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. By Notification No. S-42013/1/95-SS.(II) issued by the Ministry of\r\nLabour and Employment, Government of India on 3rd April, 1997,\r\nthe provisions of the PAG Act have been made applicable to the\r\neducational institutions with ten or more employees. The private\r\nschools being educational institutions, in which ten or more persons\r\nare employed, became liable to pay gratuity to their employees as\r\nper the provisions of the PAG Act.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. However, some private schools raised a dispute claiming that the\r\nteachers in educational institutions or schools are not “employee”\r\nas defined in Section 2(e) of the PAG Act. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The contention that the teachers did not fulfil the description\r\nof the employees, who are skilled, semi-skilled or unskilled persons\r\nemployed on wages, was accepted by the Full Bench of the High\r\nCourt of Gujarat vide judgment dated 4th May 200112. Thus, the\r\nteachers were denied the benefit of gratuity, but other employees\r\nof the private schools, were entitled to the benefit of gratuity.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. The first ground should not hold us for long, as the legislation in\r\nquestion rectifies the infirmities and defects pointed out by the\r\nCourt, and the amended clause (e) to Section 2, defining the word\r\n“employee” and the newly inserted Section 13A with retrospective\r\neffect from 3rd April 1997, effectuate and catalyse the object and\r\npurpose of the Notification No. S-42013/1/95-SS.(II). This power to\r\nlegislate with retrospective effect, which vests in every sovereign\r\nlegislature, is not taken away by a court decision. However, a court\r\ndecision cannot be overruled by the legislature. The legislature can\r\namend the language of the provision that was the subject matter of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the court decision, and such an amendment does not overrule the\r\ncourt decision. Overruling assumes a decision based on the same\r\nlaw. Where the law, as in the present case, has been amended,\r\nand the defects have been removed or cured, the law changes, and\r\ntherefore, the earlier interpretation is no longer applicable and\r\nbecomes irrelevant. Doctrine of separation of powers demarcates\r\nthe exclusive domains of the legislature, which enacts the laws, and\r\nthe courts’, which interpret the law as enacted. The earlier decision\r\nin Ahmedabad Private Primary Teachers’ Association (supra)\r\nby this Court had interpreted the law, that is, Section 2(e) of the\r\nPAG Act, as it then existed in the statute. The judgment even\r\nacknowledged and prompted the legislature to enact a legislation\r\ngranting the benefit of gratuity to teachers, who had been excluded\r\nbecause of the legal flaw. When the legislature acts within its power\r\nto usher in a valid law and rectify a legal error, even after a court\r\nruling, the legislature exercises its constitutional power to enact the\r\nlaw and does not overrule an earlier court decision. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. The second ground is again devoid of any merit and substance.\r\nThe legislature, vide the Amendment Act, 2009, has given\r\nretrospective effect to the amended provision of Section 2(e) and\r\nthe newly inserted Section 13A with effect from 3rd April 1997, which\r\nis also the date of the notification issued by the Government under\r\nSection 1(3)(c), making the PAG Act applicable to the educational\r\ninstitutions with ten or more employees. The amendment enforces\r\nand gives effect to what was intended by the notification, but could\r\nnot be achieved on account of the technical and legal defect. The\r\nlacuna, a distortion in the language that had the unwitting effect of\r\nleaving out teachers, has been rectified so as to achieve the object\r\nand purpose behind the issuance of the notification, making the\r\nPAG Act applicable to all educational institutions. The argument of\r\nthe educational institutions that they have been taken by surprise is\r\nincorrect and unacceptable as the legislation had cured the\r\ninadvertent defect in a statute, as pointed out by this Court, through\r\nlegislative repair. Private schools, when they claim a vested right <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">arising from the reason of defect, should not succeed, for\r\nacceptance would be at the expense of teachers who were denied\r\nand deprived of the intended benefit. Marginal inconvenience in the\r\nform of financial outgo or difficulty is of little weight, when curing of\r\nan inadvertent defect is made retrospectively in greater public\r\ninterest, which consideration will overrule the interest of one or\r\nsome institutions.\r\n23 We find little merit in this argument also for the\r\nreason, that the observations of this Court in Ahmedabad Private\r\nPrimary Teachers’ Association (supra) in paragraph 26 were\r\nsufficient to indicate that a legislation should intervene to grant the\r\nbenefit of gratuity to teachers. The contention that the private\r\nschools were sure to succeed as to deny the teachers the benefit\r\nof the Notification No. S-42013/1/95-SS.(II) dated 3rd April 1997, is\r\nquestionable and farfetched to be accepted. The challenge was\r\ncontested and had remained pending before the High Courts and\r\nthen this Court. The private schools had relied on some judgments\r\nof this Court, but these judgments have interpreted the word\r\n“employee” under other enactments. The law is subject to\r\nuncertainty ex-ante when two or more views are possible, but there\r\nmay be certainty ex-post litigation in view of the law of precedents,\r\nwhich reduces uncertainty.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 1<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. The provisions of the PAG Act, even post the retrospective\r\namendments, will apply only to those teachers who were in service\r\nas on 3rd April 1997, and at the time of termination have rendered\r\nservice of not less than 5 years. The period of 5 years may be partly\r\nbefore 3rd April 1997, as the date on which the person was\r\nemployed does not determine the applicability of the PAG Act. The\r\ndate of termination of service, in the form of superannuation, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">retirement, or resignation, or death or disablement due to accident\r\nor disease, should be post the enforcement date, which in the\r\npresent case is 3rd April 1997. The entire length of service, including\r\nthe service period prior to 3rd April 1997, is to be counted for the\r\npurpose of computing the entitlement condition of 5 years of\r\nservice. This is the correct effect of the ratio and decision in\r\nManagement of Goodyear India Limited. (supra) and the\r\ndecisions explaining retroactive effect of a statute. This legal\r\nposition would be equally true and correct when the PAG Act was\r\nfirst enforced with effect from 16th September 1972, and when\r\nNotification No. S-42013/1/95-SS.(II) under Section 1(3)(c) of the\r\nPAG Act was issued and enforced with effect from 3rd April, 1997.\r\nIt would be the position in case of all notifications issued under\r\nSection 1(3)(c) of the PAG Act, unless a contrary intention is\r\nexpressed, which is not the situation in the present case and thus\r\nneed not be examined.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20. The schools have claimed violation of Articles 14, 19(1)(g), 21 and\r\n300-A of the Constitution of India which, in our opinion, are not\r\nviolated as, to deny gratuity benefits to the teachers upon\r\nenforcement of the notification No. S-42013/1/95-SS.(II) dated 3rd\r\nApril 1997 was itself an anomaly which mandated correction. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The\r\neffect of the decision in Ahmedabad Private Primary Teachers’ </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Association (supra) was that although private educational\r\ninstitutions were covered under the PAG Act, gratuity benefits could\r\nnot be extended to teachers in view of the legal flaw in the definition,\r\nconsequent to which they were not treated as employees. The\r\nteachers were discriminated to be denied benefit of gratuity, a\r\nterminal benefit, which was payable to other employees of the\r\nprivate schools/educational institutions, including those engaged in\r\nadministrative and managerial work. The amendment with\r\nretrospective effect remedies the injustice and discrimination\r\nsuffered by the teachers on account of a legislative mistake, which\r\nwas understood after the pronouncement of the judgment in\r\nAhmedabad Private Primary Teachers’ Association (supra).\r\nThe amendment was necessary to ensure that something which\r\nwas due and payable to the teachers is not denied to them due to\r\na defect in the statute. Payment of gratuity cannot be categorized\r\nas a windfall or a bounty payable by the private schools as it is one\r\nof the minimal conditions of service. In this background, the\r\nargument of the private schools that they do not have capacity and\r\nability to pay gratuity to the teachers is unapt and parsimonious. All\r\nestablishments are bound to follow the law, including the PAG Act.\r\nAs observed earlier, the private schools were certainly aware of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">intent of the Government that the educational institutions, as an\r\nestablishment, would be covered and must pay gratuity upon issue\r\nof notification No. S-42013/1/95-SS.(II) dated 3rd April 1997. Some\r\nschools have raised an argument relying upon decision of this Court\r\nin T.M.A. Pai Foundation and Others v. State of Karnataka and\r\nOthers31, which observes that as a matter of principle, charging of\r\ncapitation fee or profiteering by educational institutions is\r\nimpermissible. However, the judgment does not state that the\r\nteachers should not be paid gratuity. In fact, the judgment holds that\r\nthe educational institutions are entitled to reasonable surplus to\r\nmeet the cost of expansion and augmentation of the facilities and\r\nthis does not amount to profiteering. It is possible that in some\r\nStates there are fee fixation laws which will have to be complied\r\nwith. But compliance with these laws does not mean that the\r\nteachers should be deprived and denied gratuity, which they were/\r\nare entitled to receive as other employees of an educational\r\ninstitution. Regulation of fee is to ensure that there is no\r\ncommercialisation and profiteering, and the effect is not to prohibit\r\na school from fixing and collecting “just and permissible school fee”,\r\nas has been held by this Court in Indian School, Jodhpur and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Another v. State of Rajasthan and Others.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. Reliance placed on the dissenting opinion of Amarendra Nath Sen,\r\nJ. in Lohia Machines Ltd. and Another v. Union of India and\r\nOthers33 is misplaced. The majority opinion of the Constitution\r\nBench Judgment of Five Judges, authored by P.N. Bhagwati, J.,\r\nhad upheld the constitutional validity of Rule 19-A of the Income\r\nTax Rules, 1962, enacted vide Finance Act (No.2 of 1980) with\r\nretrospective effect from 1st April 1972, thereby restricting the\r\ndeduction available under Section 80-J of the Income Tax Act,\r\n1961. In paragraph 78, Amarendra Nath Sen, J., in his dissenting\r\nopinion, has observed that a validating act validating any fiscal\r\nprovision with retrospective operation is usually held not to be\r\nunreasonable and arbitrary, as they are generally made to clarify\r\nan ambiguity or rectify some flaw or defect. Such validating act\r\nshould not be construed as having the effect to impose fresh tax\r\nwith retrospective effect. Thereafter, Amarendra Nath Sen, J., in the\r\ncontext of the amendment, observed that it had the effect of\r\nwithdrawal of benefit, unequivocally granted by the main provision,\r\nwhich reason has not been accepted and did not find favour with\r\nthe majority judgment. In the present case, there is no withdrawal <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of benefit unequivocally granted.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. A supplementary submission of the private schools was that the\r\njudgments of this Court upholding retrospective amendments are\r\nvalid only when there is a tax implication as the Government has to\r\nrefund the paid taxes, is unfounded and irrational. The power to\r\namend, which includes the power to amend the statute with\r\nretrospective effect, is a constitutional power vested with the\r\nlegislature, which is not confined and restricted to any particular\r\ntype of statutes, namely, tax statutes. We would not accept any\r\nattempt to circumscribe and limit the power vested with the\r\nsovereign legislature, thereby putting fetters when such fetters are\r\nnot prescribed by the Constitution. When and which cases to\r\nexercise the power has to be left to the legislature. In case the\r\nconstitutional validity of the amendment act is challenged, the court\r\nis entitled to examine the relevant circumstances which prompted\r\nthe legislature to make retrospective amendment. Judicial review,\r\nwhen validity of an amendment act is challenged, is decided on the\r\ngrounds of lack of legislative competence, violation of the\r\nfundamental rights or any other provisions of the Constitution of\r\nIndia. In the present case, the notification No. S-42013/1/95-SS.(II)\r\ndated 3rd April 1997 had ensured that the benevolent provisions\r\nrequiring payment of gratuity should be extended to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“employees” of the educational institutions. The amendment with\r\nretrospective effect is to make the benevolent provisions equally\r\napplicable to teachers. The amendment seeks to bring equality and\r\ngive fair treatment to the teachers. It can hardly be categorised as\r\nan arbitrary and high-handed exercise.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. Section 4 of the Repealing and Amendment Act states that the\r\nrepeal shall not affect any of the enactment in which the repealed\r\nenactment has been applied, incorporated or referred to. It also\r\nstates that the Repealing Act shall not affect the validity, invalidity,\r\neffect or consequences of anything already done or suffered, or any\r\nright, title, obligation or liability already acquired, accrued or\r\nincurred etc. This Court in Jethanand Betab v. State of Delhi35\r\nhad examined a similar provision of the Repealing and Amendment\r\nAct, 1952, whereby the Indian Wireless Telegraph (Amendment)\r\nAct, 1949 was repealed in its entirety.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. In most cases, the prayer for stay, as in Civil Appeal No. 8162 of\r\n2012, was not accepted, albeit in some cases, stay has been\r\ngranted for payment of gratuity for the period prior to 3rd April 1997.\r\nAs explained above and applying the principle of retroactivity and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as also following the judgment of this Court in Management of\r\nGoodyear India Limited. (supra), this argument raised on behalf\r\nof the private schools should fail and is rejected. The partial stay\r\norder dated 31st January 2020 passed in SLP (C) No. 2235 of 2020,\r\ntitled Saint Xaviers High School v. Jayashree Shamal Ghosh, or\r\nin any other case, is vacated.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>26. For the reasons mentioned above, the aforesaid appeals, transfer\r\ncase and the writ petitions are dismissed. The stay orders, as stated\r\nabove, are vacated. The private schools would make payment to\r\nthe employees/teachers along with the interest in accordance with\r\nthe provisions of the PAG Act within a period of 6 weeks from today\r\nand in case of default, the employees/teachers may move the\r\nappropriate forum to enforce payment in accordance with the\r\nprovisions of the PAG Act. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the facts of the case, there will be no\r\norders as to costs.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1d37dcf9c7636cd9497c25e0ea3f1ec0.png', '39b085943ef2ed2520ea236fbcadb29b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-08-31', 1, '', '', '2022-08-30 16:46:52', '2022-08-31 16:55:47'),
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INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2146, 'w3mtIu3kSygkgJ3nOPNh5uPjn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Merely because a law operates on certain circumstances which are antecedent to its passing does not mean that it is retrospective. Supreme Court discusses about \'retrospective\' and \'retroactive\' laws. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Securities and Exchange Board of India Vs Rajkumar and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5247 of 2022 decided on 30 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dhananjaya Y Chandrachud, Justice Surya Kant and Justice A.S. Bopanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>1. Reliance Commercial Finance Limited issued Non-Convertible Debentures\r\nto various persons. Vistra ITCL (India) Limited was the Debenture Trustee under three Debenture Trust Deeds dated 3 May 2017, 23 May 2017 and 5\r\nFebruary 2018. RCFL committed its first default under the Debenture Trust\r\nDeeds in March 2019.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. On 7 June 2019, RBI issued the Reserve Bank of India (Prudential\r\nFramework for the Resolution of Stressed Assets) Directions 2019, with ?a\r\nview to providing a framework for early recognition, reporting and time\r\nbound resolution of stressed assets. The RBI Circular provided that certain\r\nlenders may opt for a resolution strategy available to them under the\r\nexisting legal framework, including entering into a resolution plan or\r\ninitiating legal proceedings for recovery or insolvency. If the lenders chose\r\nto implement a Resolution Plan, they were required to enter into an inter creditor agreement. Bank of Baroda and other lenders of RCFL entered into\r\nan ICA on 6 July 2019, pursuant to the RBI Circular. Bank of Baroda was\r\nlater appointed as the lead bank under the ICA. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The RBI Circular applied to banks and specified categories of lenders. Other\r\ninvestors were outside its purview. SEBI issued a circular on 13 October\r\n2020. The subject was the ?Standardisation of procedure to be followed by\r\nDebenture Trustee(s) in case of ?default‘ by issuers of listed debt\r\nsecurities‘. On 11 March 2021, RCFL and Vistra amended the Debenture\r\nTrust Deeds by executing a Supplementary Debenture Trust Deed which\r\ntook note of the SEBI circular. On 15 July 2021, the Resolution Plan\r\nsubmitted by Authum Investment and Infrastructure Limited was approved\r\nby RCFL‘s lenders.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. Based on the submissions which have been canvassed by the parties, the\r\nissues which arise for determination are:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>a. Whether the debenture holders and other parties in the present case\r\nwere required to follow the procedure under the SEBI Circular; and\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>b. Whether the civil court had the jurisdiction to entertain the lis in this\r\ncase.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>63. It is RCFL‘s case that the SEBI Circular is applicable only if the debenture\r\nholders choose to enter into an ICA under the RBI Circular. According to\r\nRCFL, it is open to debenture holders to choose not to enter into an ICA.\r\nInstead, they may approve of a Resolution Plan that the lenders have\r\nformulated independent of the modalities prescribed in the SEBI Circular. It\r\nis argued that this route permits debenture holders to approve or reject\r\nResolution Plans based on whether their interests are properly accounted\r\nfor. It has been urged that this may be preferable to entering into an ICA,\r\nwhere the debenture holders may find themselves at the mercy of the\r\nlenders (who may wield greater power while formulating the Resolution\r\nPlan, either due to their number or due to the value of the debt owed to\r\nthem or both). Debenture holders would, it has been argued, consequently\r\nbe forced to abide by a Resolution Plan which does not properly account for\r\ntheir interests. Hence, according the submission, they may opt out of an ICA\r\nand instead approve or reject the restructuring of debt at the stage of\r\nimplementation of a Resolution Plan. While this argument may seem\r\nattractive at first blush, it gives way on closer inspection. The reasons why\r\nwe are not inclined to accept the submission are formulated below: <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i. There is no bar to the civil court’s jurisdiction</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>65. Section 15Y of the SEBI Act stipulates that no civil court shall have the\r\njurisdiction to entertain any suit in respect of any matter which an\r\nadjudicating officer appointed under the SEBI Act is empowered to\r\ndetermine. Section 15-I of the SEBI Act provides that an adjudicating officer\r\nmay be appointed to adjudge cases under Sections 15A, 15B, 15C, 15D,\r\n15E, 15EA, 15EB, 15F, 15G, 15H, 15HA, 15HB. None of the sections\r\nmentioned in Section 15-I of the SEBI Act would confer jurisdiction on the\r\nadjudicating officer to grant the relief sought by the plaintiffs in the first\r\ninstance. Hence, the bar in Section 15Y would not operate as against the\r\nsuit in the present case.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n66. Similarly, Section 430 of the Companies Act provides that no civil court shall\r\nhave the jurisdiction to entertain any suit in respect of any matter which the\r\nNational Company Law Tribunal or the National Company Law Appellate\r\nTribunal is empowered to determine. Nothing in the Companies Act 2013 or\r\nany other law for the time being in force vests either the National Company\r\nLaw Tribunal or the National Company Law Appellate Tribunal with the\r\njurisdiction to adjudicate upon a challenge to the RBI Circular. Hence, the\r\nbar in Section 430 is not attracted.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ii. The SEBI Circular is applicable if debenture holders wish to implement\r\na Resolution Plan to which the lenders are a party<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>68. It is undoubtedly true that the SEBI Circular does not stipulate that the\r\nsigning of an ICA is the only route to entering into a compromise with the\r\nissuer company. Besides the absence of a clause mandating an ICA\r\npursuant to an event of default, Clause 6.5.3 of the SEBI Circular\r\nrecognizes that the debenture holders (through the Debenture Trustees)\r\nmay undertake actions besides those contemplated in the SEBI Circular.\r\nHowever, if debenture holders choose to implement a Resolution Plan to\r\nwhich the lenders are party, they must do so in compliance with the\r\nconditions laid down in the SEBI Circular.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>69. Clause 9 of the RBI Circular stipulates that the lenders are to undertake a\r\nreview of the borrower‘s accounts within 30 days from the date of default,\r\nduring which they may decide on the resolution strategy. The lenders may\r\nopt for any resolution strategy available to them under the existing legal\r\nframework, including (i) entering into a Resolution Plan; or (ii) initiating legal\r\nproceedings for recovery; or (iii) insolvency. If the lenders choose to\r\nimplement a Resolution Plan, they are required to enter into an ICA in terms\r\nof Clause 10 of the RBI Circular. The existence of an ICA which is in\r\ncompliance with the RBI Circular is a sine qua non for the implementation of\r\na Resolution Plan. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>72. The SEBI Circular was issued with reference to the RBI Circular; it does not\r\nspecify the conditions for the execution of an independent ICA or Resolution\r\nPlan which is separate from the ICA and Resolution Plan under the RBI\r\nCircular. Both the RBI Circular and the SEBI Circular refer to one and the\r\nsame ICA and Resolution Plan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>76. We agree that the language in Regulation 15(7) of the 1993 Regulations\r\nand the SEBI Circular is facilitative and not mandatory. This is in recognition\r\nof the fact that debenture holders may opt to exercise their rights through\r\nmechanisms other than the execution of a Resolution Plan. The language\r\ncannot be construed to be facilitative in the sense of providing debenture\r\nholders with the option of by-passing the modalities prescribed by the SEBI\r\nCircular while accepting a Resolution Plan. The ICA continues to be the\r\nfoundation or mother document for the Resolution Plan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>iii. Dissenting ISIN level debenture holders are bound by the ICA /\r\nResolution Plan</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">77. Clause 6.6 of the SEBI Circular inter alia requires the ?approval of not less\r\nthan 60% of the investors by number at the ISIN level? for entering into an\r\nICA. RCFL has argued that the ISIN level voting could potentially frustrate a </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Resolution Plan. The concern is that a single debenture holder who holds an\r\nentire ISIN (or more than one ISIN) can prevent the creditors from arriving at\r\nan ICA / a Resolution Plan, especially in the absence of a provision for their\r\n?exit? from this process. In response, SEBI has argued that the issuer\r\ncompany can ?adjust? the size of the security by proportionally reducing it\r\nand releasing it to the extent that debenture holders agree to the ICA /\r\nResolution Plan. Both these arguments miss the crux of the matter.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>78. Dissenting creditors do not have the option of ?exiting? the compromise or\r\narrangement arrived at in terms of Section 230 Companies Act.24 Similarly,\r\ndissenting lenders do not have the option of ?exiting? the ICA / Resolution\r\nPlan under the RBI Circular.25 The respective majorities provided for in each\r\nof these laws bind dissenting creditors. It is along these lines that the SEBI\r\nCircular binds dissenting debenture holders. Indeed, the SEBI Circular could\r\nbind dissenting debenture holders even in the absence of similar provisions\r\nin other laws.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">79. The argument that the SEBI Circular is not applicable because a single\r\ndebenture holder will be able to frustrate the Resolution Plan is a\r\nconsequential one. The applicability of a circular cannot be determined on\r\nthe basis of such a concern. We need not comment upon this aspect in the\r\nabsence of a challenge to the SEBI Circular. We also note that it is open to\r\nthe relevant stakeholders to approach SEBI with any concerns, commercial\r\nor otherwise, and request an amendment to the SEBI Circular. SEBI as a</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">statutory regulator can always look at such concerns and has the power to\r\nfactor them in if it deems fit to do so in public interest and for the orderly\r\nfunctioning of the securities‘ market</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>iv. The SEBI Circular has retroactive application</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>84. In the present case, RCFL issued the debentures and defaulted on the\r\npayments to the debenture holders prior to the issuance of the SEBI\r\nCircular. However, as of 13 October 2020 (the date on which the SEBI\r\nCircular came into force), a compromise or agreement on the restructuring\r\nof the debt owed by RCFL did not exist. The debenture holders were not\r\nvested with any rights with respect to the resolution of RCFL‘s debt. The\r\nexistence of the debt and the subsequent default by RCFL was the status of\r\nevents, which existed prior to 13 October 2020. Once it came into force, the\r\nSEBI Circular applied to the manner of resolution of debt, as specified\r\ntherein.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>85. Even assuming that debenture holders were vested with the right to\r\nsanction a compromise or arrangement in terms of the special majority in\r\nClause 23 to the Fifth Schedule of the Debenture Trust Deed, they were\r\ndivested of such a right upon the issuance of the SEBI Circular. Clause 59\r\nof the Debenture Trust Deed stipulates that any provision in the Debenture\r\nTrust Deed which is in conflict with the 1993 Regulations is null and void. In <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">so doing, it lays down a trigger for the divestment of rights under the\r\nDebenture Trust Deed. A contractually vested right may be taken away by\r\nthe operation of a statutory instrument. A fortiori, in the present case, the\r\nSEBI Circular owes its existence to statutory powers conferred by a special\r\nlegislation enacted with a view to protect the interests of investors and to\r\nensure the stable and orderly growth and development of the market for\r\nsecurities.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>86. The SEBI Circular was issued partly in exercise of the powers under the\r\n1993 Regulations.28 Further, Regulation 15(7) of the 1993 Regulations lays\r\nthe foundation for the conditions specified in the SEBI Circular. As such, the\r\nphrase ?provisions of the [1993 Regulations]? in Clause 59 must be read to\r\ninclude the SEBI Circular. Clauses 22 and 23 of the Fifth Schedule to the\r\nDebenture Trust Deed are evidently in conflict with the SEBI Circular as they\r\neach provide for different voting mechanisms. Therefore, Clauses 22 and 23\r\nmust give way to the SEBI Circular, which will take precedence.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>v. Exercise of this Court’s power under Article 142 of the Constitution</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>88. The above table highlights that small investors, especially those whose\r\nexposure is up to INR 10 lakhs, are benefiting to the extent of 100% of their\r\nprincipal amount. Even debenture holders whose exposure is more than 10\r\nlakhs are receiving 29.96% of their principal amount. In comparison, the\r\nsecured ICA lenders would receive 24.96% of their principal amount, which\r\nis lower than the recovery made by the debenture holders. It is also\r\nimportant to highlight that none of the debenture holders have raised any\r\ngrievance with regard to the proposed compromise. In such a situation,\r\napplication of the SEBI Circular, though right in law, may lead to unjust\r\noutcomes for the retail debenture holders if this court were to reverse the\r\nentire course of action which has occurred in the present case.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>93. The compromise presently arrived at, which is in the interests of all the\r\nparties, will be disturbed if a new process is directed to be commenced in\r\naccordance with the SEBI Circular at the present stage.\r\n94. Pertinently, the SEBI Circular only contemplates two situations where ISINwise voting is mandated: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) non-enforcement of security; and</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) entering\r\ninto an ICA.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Although it applies retroactively, it admittedly does not <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contemplate a scenario where the debenture holders could give ex post\r\nfacto consent to ICAs agreed prior to the commencement of the SEBI\r\nCircular, that is 13 October 2020. In the present case, the application of the\r\nSEBI Circular will lead to a scenario where a Resolution Plan validly agreed\r\nupon by the ICA lenders under the RBI Framework will have to be\r\nunscrambled. For this reason, we consider it necessary to extend the benefit\r\nunder Article 142 to the retail debenture holders by allowing the Resolution\r\nPlan to pass muster. We would like to reiterate that this Court is issuing the\r\ndirections to mould the relief under Article 142 in view of the peculiar facts\r\nand circumstances of the present case noted above.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>vi. Dissenting debenture holders in the present case\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">9</span><span style=\"font-size: 12pt;\">5. As stated in the above sections, after 13 October 2020, there are two\r\nmechanisms in situations where a compromise or resolution is sought:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>a. A compromise under the SEBI Circular, which lies outside the process\r\nof the NCLT, to restructure the debt, binding both dissenting and\r\nabstaining debenture holders;\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>b. A compromise under Section 230 of the Companies Act by\r\napproaching the NCLT, binding dissenting/abstaining debenture\r\nholders. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">96. It is clear that a compromise arrived under the SEBI Circular or Section 230\r\nof the Companies Act effectively assimilates the rights of the dissenting </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">creditors. The SEBI Circular adopts a higher voting threshold of 60% by\r\nnumber and 75% to bind dissenting/ abstaining debenture holders.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>97. SEBI submits that debenture holders are entitled to full outstanding amounts\r\ndue (principal plus interest) if their debt cannot be resolved under the\r\ncompromise/ resolution mechanism. However, it has been argued that the\r\ncompromised arrived at in terms of the direction of the Division Bench will\r\nalso bind all the other debenture holders, who were not a party to the\r\noriginal suit before the High Court. This will prejudice the dissenting\r\ndebenture holders as they have to settle for a lesser amount – 24.96% of\r\nthe principal among with a further 5% of the principal outstanding. We agree\r\nwith SEBI‘s submission that the compromise arrived at the Debenture Trust\r\nDeed level among the consenting debenture holders should not bind the\r\ndissenting debenture holders.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>98. The dissenting debenture holders would have been bound by the Resolution\r\nPlan if it had been approved in accordance with the Insolvency and\r\nBankruptcy Code, 2016 or under an ICA as acceded to under the SEBI\r\nCircular. We accordingly deem it appropriate that dissenting debenture\r\nholders should be provided an option to accept the terms of the Resolution\r\nPlan. Alternatively, the dissenting debenture holders have a right to stand\r\noutside the proposed Resolution Plan framed under the lender‘s ICA and\r\npursue other legal means to recover their entitled dues.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>99. For the reasons indicated in the text of the judgment, we accept the\r\nsubmissions which have been urged by SEBI and disapprove of the</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>interpretation placed by the Division Bench of the Bombay High Court on the\r\nSEBI Circular. The appeal is allowed in part, subject to the directions issued\r\nabove under Article 142 of the Constitution.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>100. Pending applications, if any, stand disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a3a0f9fa908004ff100336a29eacc04b.png', 'da527847769e6e594d0040293a336d0e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-02', 1, '', '', '2022-09-02 01:04:10', '2022-09-02 06:20:09'),
(2141, 'O9HMqO2wIJGCtnqIpWNYPa53h', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque bounce case. Unless accused introduces a specific defence questioning financial capacity of complainant, Court cannot go into this question on its own and give a finding. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Udayakumar Vs Ningappa<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1313 of 2010 decided on 16 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. As the cheques issued by the respondent for Rs.1 ,25,000/- and Rs. 1,00,000/-, ( totally Rs.2 ,25,000/-) for discharging the loan that he had taken from the complainant were dishonoured, the latter initiated action for the offence under section 138 of the Negotiable Instruments Act. The learned Magistrate, having found that the evidence adduced by the complainant established that the respondent had borrowed money and for discharging same, he issued the cheques which were dishonoured for insufficiency of funds in his bank account, convicted him and sentenced to fine of Rs.4 ,000/- and directed him to undergo simple imprisonment for two months in case he failed to pay the fine amount. The learned Magistrate directed the respondent to pay Rs.2, 60 ,000/- towards compensation. Aggrieved by judgment of conviction, the respondent preferred an appeal to the Court of II Additional District and Sessions Judge, Davanagere. The appellate court allowed the appeal and reversed the judgment of the Magistrate and thereby acquitted the respondent. Hence, this appeal under section 378 ( 4) of the Code of Criminal Procedure.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. According to the appellate court, the presumption available under section 139 of the Negotiable Instruments Act is only to the extent that the cheque was drawn for discharge of full or part of the debt or liability, and the presumption is not available for the existence of legally enforceable debt or liability. The complainant has to prove the transaction which has given rise to the liability. Another reason given by the appellate court is that complainant did not prove his capacity to lend huge amount of Rs.2, 25 ,000/- to the respondent and neither in the complaint nor in his examination- in- chief, he stated a single word about his capacity or source of income to advance money of Rs.2 ,25 ,000/-. Then the appellate court followed the judgment of this court in Shiva Murthy vs Amruthraj [ILR 2008 KAR 4629] to come to conclusion that the complainant’s capacity to lend money to the respondent was doubtful and it was not proved. Therefore the appeal came to be allowed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10. I have perused the entire evidence. The evidence on record discloses that the respondent does not dispute to have issued cheques to the appellant, and he also admits his signature on the cheques. In the complaint as also in the examination- in- chief, the appellant stated that the respondent obtained hand loan of Rs.2,25,000/- in the month of December 2006 assuring to repay the same within two months. For discharging this loan the respondent issued two cheques as per Exs.P1 and P2. This was the case projected by the appellant. There is no cross- examination of the appellant on this aspect of the matter. Directly defence was introduced in the cross-examination. Appellant admitted that the respondent had sent a proposal to the Block Education Officer for approving his (appellant’s) appointment in the school and there was delay in processing of the recommendation for approval. Appellant has also admitted that he asked the respondent for giving security for regularizing his appointment, but he denied the suggestion that the respondent gave two cheques at that time by way of security. Same was the evidence given by respondent when he adduced evidence as DW1.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. In the light of the evidence available on record, if the findings of the courts below are examined, it may be stated that the trial court is justified in coming to conclusion that the respondent issued the cheques Exs.P1 and P2 for repaying the hand loan that he had obtained from the appellant. When the evidence of PW1 to this effect has not at all been questioned in the cross- examination, it remains unassailed. The appellant got issued legal notice before initiating action for the offence under section 138 of the Negotiable Instruments Act. Respondent admits to have received the notice, but did not reply. If really the transaction between him and the appellant was that he issued the cheques as a security as demanded by the appellant, he could have taken that contention by issuing reply to the legal notice, Ex.P5. If reply notice is issued, it strengthens the defence projected during cross- examination. Now if the questions posed to PW1 in the cross-examination are seen, unhesitatingly it can be stated that the defence is improbable to be accepted. It is highly impossible to believe that the respondent being part of the management would give cheques by way of security to a teacher whose appointment was to be confirmed by the education department. This defence is against the practical phenomenon that usually the management demands money from the teachers for confirmation of their appointment in the private schools.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12. The first appellate court has followed the judgment of this court in the case of Shiva Murthy. The accused therein contended that the complainant had no financial capacity to lend a sum of Rs.75,000/- to him and in that connection he produced many documents to prove the financial condition of the complainant. Therefore in that view, the coordinate Bench of this court held that complainant had to prove his financial capacity. In the case on hand, it is not the defence of the respondent that the appellant had no capacity to lend Rs.2,25,000/- to him. When such a defence was not taken by the respondent, it was impermissible for the appellate court to give a finding to that effect for upsetting the judgment of the Magistrate. Indeed it is incumbent on the part of the complainant to prove that the dishonoured cheque was issued by the accused for discharging in full or part of legally enforceable debt. If according to the accused, the complainant had no capacity to lend money, he must introduce a specific defence to that effect. Unless such a defence is introduced, the court is not expected to give a finding regarding financial capacity. Therefore it may be stated that the first appellate court has erred in giving its own reason going beyond the materials available on record for reversing the judgment of the Magistrate. The appeal thus deserves to be allowed and ordered accordingly. The judgment of the appellate court is set aside and the judgment of conviction passed by the Magistrate is restored.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fe1182507e1edc5ceaffd4b8c7a54159.JPG', '4aa8642f31d5cb4412adfc91607818ab.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-02', 1, '', '', '2022-09-01 17:15:57', '2022-09-02 12:54:45'),
(2142, 'Vau54IxDF81BKpQE2MXKSVuBq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for partition. Défense of prior partition becomes weak when revenue entries do not stand separately and exclusively in the name of the family members. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mallappa Shankrappa and others Vs Maruthi Shankrappa<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 5115 of 2013 decided on 2 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ravi V. Hosmani.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Appellants herein  were  defendants  no. 1 and 2 in  original suit while respondent no. 1 herein was the plaintiff. Respondents No.2 to 8 herein were defendants no. 5 to 11. For sake  of convenience, parties to this appeal will hereinafter be referred to by their ranks in original suit. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">3. O.S. no. 25/ 2009 was filed seeking for partition and separate possession of plaintiff’ s 1/8th share in suit schedule properties. In plaint, it was stated that  plaintiff and  defendants constituted Hindu undivided joint family which owned 06 </font></span><font face=\"Calibri, sans-serif\">agricultural properties and 04 house properties originally belonging to propositus Shankreppa Vaggannavar. Plaintiff  and  defendants  no.1  to  6 were brothers and sisters. Apart from them, another sister Smt.Parawwa W/ o. Shivappa  Koti  died.  Her legal  representatives  were  arrayed  as defendants no. 7 to 11. It was  further  stated  that  propositus died on 23.03. 1987 while his wife Neelawwa also expired. Upon death of parents, plaintiff and defendants inherited suit properties. There was no partition among  them.  After  plaintiff got appointment as Cook in  B. C.M.  Hostel and  residing at Hanagal, with intention to grab his share in suit properties, defendants cut the trees grown on suit properties and sold them away. Though, plaintiff requested Forest authorities not to grant  permission for cutting of trees, same was not considered.</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>From above submission, relationship between parties and nature of suit properties as ancestral joint family properties is not in dispute.   While it is the case of plaintiff that there was no prior partition between parties and thereafter plaintiff was entitled for share in suit properties, it is the case of defendants no.1 to 4 that there was severance of joint family status due to prior partition during year 1988.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17. In a suit for partition, plaintiff is required to establish that there exists joint family between himself and defendants. He is also required to establish that properties held by said joint family were ancestral joint family properties and there was no prior partition. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18. In instant case, plaintiff has clearly pleaded about existence of joint family and suit properties being joint family properties. Plaintiff has also examined himself as P.W.1. He produced record of rights and Khata certificates of suit properties. He also produced tax paid receipts, mutation extract No.2036, mutation register extract in respect of R.S.No.86/2B, R.S.No.7/2 and 62/1 marked as Ex.P.1 to 18. Letter addressed to Forest Officer not to issue tree felling permission to defendants and a letter issued to Tahashildar Hanagal not to effect mutation in revenue entries as Ex.P.19 and 20. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">21. It observed that there was no reasonable explanation offered by defendants for not getting registered the deed of partition executed in the year 1988. There was no explanation for not producing any records to corroborate their claim of prior partition. Though, D.W.4 deposed that he was one of the panchas before whom partition was effected in the year 1988, during cross-examination he admitted that he did not know the extent or particulars of properties belonging to joint family. He further deposed that no share was allotted to defendant No.6 as she did not demand her share which was contrary to pleading in written statement </font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">that she was given 10 tolas of gold. Said contradiction would cast serious doubt about presence of D.W.4. Therefore it held that defendants failed to establish that defendant No.6 was given gold and income derived from sugarcane grown on 3 acres of land. On said findings, trial Court proceeded to decree suit.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>22. First appellate Court upon re-examination of evidence on record and reasons assigned by trial Court proceeded to confirm findings and dismissed appeal. It observed that though defendants no.1 to 4 contended in the written statement that there was prior partition in the year 1988, no evidence was led to substantiate the same. Ex.P.1 to 13 record of rights clearly establish that names of plaintiff and defendants were entered jointly in respect of suit properties upto filing of suit. None of suit properties were standing in exclusive name of any of parties and specific extent were not mentioned against their names, which indicated that there was no prior partition. It also referred to contradiction in deposition of defendant-witnesses with written statement averments. In view of same, it proceeded to concur with the findings of trial Court. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23. Though, learned counsel for defendants no.1 to 4 strained himself to contend that judgment and decree passed by both courts was contrary to evidence on records, he was unable to point to any evidence to establish prior partition in the year 1988 despite prior partition being there main ground for opposing suit claim. Both Courts after due consideration of the evidence on record have arrived at finding that there was no prior partition between the parties. Admittedly, propositus-Shankreppa had eight children i.e., plaintiff, defendants no.1 to 6 and mother of defendants no.7 to 11. In view of amended Section 6 of Hindu Succession Act, all of them would be entitled to equal share in suit properties. Therefore, neither of the Courts committed any error in decreeing 1/8th share to plaintiff. There is neither any perversity nor capriciousness in the findings. Hence, no substantial question of law as proposed would arise for consideration.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Appeal is dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '64ec13a051299f7964a1d0a7b823b4c6.JPG', '6d20927f9e82c537dead43dbf4489e5c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-03', 1, '', '', '2022-09-01 17:47:22', '2022-09-03 04:47:46');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2143, 'cGVqkssa20AK5SfuWyGEQyTPd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Court cannot take cognizance of any offence under the Factories Act, 1948 unless a complaint is made within three months from the date on which the alleged commission of the offence came to the knowledge of Inspector. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ravindrakumar Goyal and others Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 101440 of 2022 decided on 2 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.I. Arun.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. Aggrieved by the registration of the complaint by the State in PCR No.418/2021, pending on the file of the learned Additional Civil Judge and JMFC Court, Koppal for an offence punishable under Section 92 of the Factories Act, 1948 (for short “the Act, 1948”), the instant criminal petition is filed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. As per the complaint filed by the respondent –State, a complaint was received by the Assistant Director of Factories, Koppal Division, Koppal on 21.04.2021 about an incident that had taken place in the factory premises of M/s. Kalyani Steels ltd., situated at Hospete Road,  Ginigera, Koppal at about 1:40 a.m. on 24.09.2020, which resulted in injury to one of its employees. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3. Upon investigation, it was found that the incident constitute an offence punishable under Section 92 of the Act, 1948 and accordingly PCR No.418/2021 has been lodged before the learned Additional Civil Judge and JMFC Court, Koppal on 25.09.2021. The trial Court has ordered for issuance of steps to the accused therein, who are the petitioners herein. On the ground that lodging of a complaint is barred by limitation as per the provisions of Section 106 of the Act, 1948, the instant criminal petition has been filed.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. Admittedly, in the instant case, the complaint has been received in the office of the Assistant Director of Factories, Koppal Division, Koppal on 21.04.2021 and though the incident had taken place on 24.09.2020, the date that has to be considered is, when the offence came to the knowledge of the jurisdictional Inspector and as the complaint having been filed on 25.09.2021 i.e., after the period of limitation as stipulated under Section 106 of the Act, 1948, the same is liable to be set aside.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>O R D E R</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The criminal petition is allowed</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '75d00cdb22480f70605455c38aa0b52c.JPG', '0b9f34610083046259a518ad4f4195aa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-02', 1, '', '', '2022-09-01 18:37:51', '2022-09-02 12:12:16'),
(2144, '73kx5Zc4h9vdD128rjDT2YDhz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Death of one respondent will not result in abatement of second appeal when right to sue survives against surviving respondent. Supreme Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sakharam Through LRS and another Vs Kishanrao.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5067-5068 of 2022 decided on 3 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Indira Banerjee and Justice V. Subramanian.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. These appeals arise out of the judgment and decree of\r\nthe High Court of Judicature at Bombay, Aurangabad Bench,\r\ndismissing a Second Appeal as having abated due to the\r\ndeath of one of the respondents and dismissing an\r\napplication to set aside abatement.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Sans unnecessary details, the facts leading to the\r\naforesaid appeals can be summarized as follows:-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Two sons of one Tukaram Rodge filed a civil suit\r\nfor declaration and possession against the two sons\r\nof one Gangaram Rodge impleading the mother of the\r\nplaintiffs as a proforma Defendant No.3.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) The suit was dismissed by a judgment and\r\ndecree dated 30.06.1982.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iii) The unsuccessful plaintiffs filed a Regular\r\nFirst Appeal in C.A.No.134 of 1982. The First\r\nAppellate Court decreed the suit as prayed for, by a\r\njudgment and decree dated 30.12.1992.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iv) The Defendant Nos. 1 and 2 namely sons of\r\nGangaram filed a Second Appeal in S.A. No. 67 of\r\n1993, on the file of the High Court.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(v) The original plaintiffs, namely, the two sons\r\nof Tukaram, were Respondent Nos. 1 and 2 in the\r\nSecond Appeal and the 3rd Defendant, who was only a\r\nproforma defendant, was Respondent No.3 in the Second\r\nAppeal.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(vi) During the pendency of the second appeal, the\r\nproforma Defendant No.3, who was Respondent No.3,\r\ndied on 30.03.1994. Since, her sons were already\r\nparties as Respondent Nos. 1 and 2 in the Second\r\nAppeal, the appeal did not abate on account <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the death of the proforma Respondent No.3.\r\nHowever, one of the two successful plaintiffs, who </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was the second Respondent in the Second Appeal, died\r\non 02.02.1996.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(vii) In view of the above, the High Court thought\r\nthe appeal had abated on account of the failure of\r\nthe appellant to bring on record the legal\r\nrepresentatives of the deceased second Plaintiff who\r\nwas Respondent No.2 in the Second Appeal.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(viii) The application filed for setting aside\r\nabatement was also dismissed by the High Court. This\r\nis why, the Defendant Nos. 1 and 2, who were the\r\nappellants in the second Appeal, have come up with\r\nthe above Civil Appeals.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Fundamentally, the High Court fell into an error in\r\nthinking that the Second Appeal abated upon the death of\r\nRespondent No.2 (second Plaintiff).\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. When two plaintiffs joined together and secured a\r\ndecree of declaration and possession of an immovable\r\nproperty, the death of one of the decree holders will not\r\nmake the second appeal abate. As against the surviving\r\nsuccessful plaintiff, the cause of action\r\nsurvived. Abatement occurs only when the cause of action\r\ndoes not survive upon or against the surviving party.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The above Rule makes it clear that where there are\r\nmore defendants than one and any of them dies and where\r\nthe right to sue survives against the surviving\r\ndefendant, the suit shall proceed against the surviving\r\ndefendant. Order XXII Rule 11 states that in the\r\napplication of Order XXII to appeals, the word\r\n“plaintiff” shall be held to include an appellant, the\r\nword “defendant” a respondent, and the word “suit” an\r\nappeal.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Therefore, if the word “defendant” appearing in Order\r\nXXII Rule 2 is replaced by the word “respondent”, it will\r\nbe clear that the second appeal did not abate and the\r\nright to sue survives against the surviving respondent.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. In view of the above, the dismissal of the Second\r\nAppeal by the High Court on the ground that the appeal\r\nstood abated, without going into the merits of the case\r\nis not in accordance with law. Consequently the dismissal\r\nof the application was also contrary to law.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Therefore, the appeals are allowed. The judgment and\r\ndecree of the High Court dismissing the Second Appeal as\r\nwell as the order dismissing the application to set aside\r\nabatement are set aside and the Second Appeal is remanded\r\nback to the High Court for a fresh consideration on\r\nmerits.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd5ee9f95e8782d34aaa991ca5d4857eb.JPG', '431875d9f78533a240674a4431fa3a4d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-02', 1, '', '', '2022-09-01 18:55:46', '2022-09-02 08:58:06'),
(2147, 'wVXfvURg9BXu3Q5U551UVOfC1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Compensation towards drawing high-tension electricity lines. Karnataka High Court approves fixation of 50% of the land value as compensation. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Chief Engineer Electricity Transmission Zone and others Vs Gangappa.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 113268 of 2019 decided on 11 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The II Additional District and Sessions Judge, Ballari in Miscellaneous No.6/2017, Misc. Petition No.7/2017, Misc. Petition No.8/2017, Misc. Petition No.9/2017, Misc. Petition No.10/2017, Misc. Petition No.11/2017, Misc. Petition No.12/2017, Misc. Petition No.13/2017, Misc. Petition No.14/2017, Misc. Petition No.15/2017, Misc. Petition No.16/2017, Misc. Petition No.17/2017 has passed different orders dated 27.02.2019 awarding certain compensation on the ground of the erection of the electricity towers and drawing of the transmission lines across the lands of various land owners under two headings, i.e. one as regards the fact of erection of the towers on the land of the land owners and second, on account of the diminution of land value due to diminution in the yield grown on the said lands. Various amounts having been awarded under different petitions. The petitioners are before this Court challenging the same.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. This Court cannot lose sight of the context of the Act, since without context, there can be no meaning which can be attributed to any particular litigation or enactment. The Indian Telegraph Act, was promulgated in the year 1885 i.e. it is a pre- independence Act. The said Act was promulgated when the country was sub-judicated, and generally no citizen of the country had any right fundamental or otherwise. It is in those circumstances that the British in India had given certain authorities right and/or authority to virtually ride roughshod over the rights of a citizen, enter into the property of the citizen and put up either a railway line or telegraph lines on those lands without seeking for any permission from such land owner. The contention of Sri. Gurudev Gachchinamath is that, since the towers are established for public purpose and the power lines are drawn for the public purpose in terms of providing electricity to the general public no compensation need to be paid. The said argument cannot come in the way of granting compensation. If the said argument is adopted or accepted, there would be no requirement to award compensation even for the highways formed, since highways are also for public purpose and public importance. Once a land is utilized by any authority for any purpose whatsoever, without the consent of such person by way of purchase, it would be but required for the authority, Central, State or otherwise, whether exercising powers under the Indian Telegraph Act, or any other Act to compensate the land loser.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. Admittedly, there are towers which have been established on the properties of the respondents in these batch of matters and there are power lines which have been drawn. Admittedly, there are warning signs put up that nobody can cultivate anything under the tower or near abouts. This Court can also take judicial notice of the fact, that whenever there are petitions which are filed seeking for compensation on account of destruction of the crop due to the power line falling into the agricultural fields, many a time the defence taken is that the farmer ought not to have cultivated under the power lines. Such being the case, the authorities cannot be permitted to take advantage in both these situations.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 10. Merely because the authorities are permitted to enter upon a land under an enactment that is traceable to colonial times, it cannot be said that the said authority is not required to grant compensation. In fact, Clause-D to Proviso to Section 10, makes it clear that while entering the land, the authority shall do as little damage as possible and shall also pay full compensation to all persons interested for any damage sustained by them, by the reason of exercising those powers. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. Thus, for all the aforesaid reasons, there is a loss which is caused to the owners of the land on account of the erection of the towers which is required to be compensated which would also come within Clause-D to the Proviso to Section 10 of the Act. As regards the diminution, the contention of Sri. Gurudev Gachchinamath is that there is no particular document which has been placed on record to establish any diminution and the calculation made by the trial Court is not proper. On enquiry as to whether the authorities have carried out any such study and or come up with the formula to be adopted in such circumstances, he submits that there is no such formula which the authorities have arrived at nor any study caused or conducted by the petitioners as regards diminution on account of a tower or drawing up of the power lines.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18. In the present case the trial Court has taken into consideration a sale deed said to be executed for land covered under Survey No.21/A measuring 5 acres 40 cents of Hallagundi village and arrived at a calculation of Rs.2,50,000/- per acre to be the value of the land. Thus, this calculation being on the basis of the document cannot now be challenged by the petitioners without producing any document contradicting the said valuation. Mere submission that, such valuation cannot be taken into consideration is not sufficient. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19. As regards the diminution, as afore observed on account of a tower being set up and or the power lines being drawn, the former/land-owner would be deprived of using the land under the tower as also the crops are adversely effected on account of the electromagnetic radiation, etc., which the trial court has taken into consideration and arrived at the diminution at 50% of the value of the property below the power line.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20. In the absence of any other methodology of calculation which has not been put forth by the petitioners, I am of the considered opinion that the said methodology cannot be disputed. It is one thing to say that the methodology is bad and another to establish how it is bad. The petitioner has not been able to establish as to how the methodology adopted by the trial Court to arrive at a value of diminution of land value is bad. Hence, this submission is also required to be rejected. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21. Since the only arguments which have been advanced in all these matters are the aforesaid two arguments which are on law and not on facts, there is no requirement for this Court to go through the facts of each matter. These two arguments being rejected, the order passed by the trial Court in all the matters would have to be confirmed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitions stand dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a5084f94faaed1ea927cf8545e3e3333.JPG', '9759f5b637136789d0737e5c29445e63.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-05', 1, '', '', '2022-09-02 18:16:14', '2022-09-05 08:27:29');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2148, 'EM1ivWh5WHNg7BUO9c35M8u3t', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constructive resjudicata under Order II Rule 2 CPC does not apply to amendment of pleadings in a pending suit. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b style=\"font-size: 12pt;\">Life Insurance Corporation of India Vs Sanjeev Builders Private Limited and another.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5909 of 2022 decided on 1 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Aniruddha Bose and J.B. Pardiwala.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>HELD: </b></span><span lang=\"EN-US\" style=\"font-size: 12pt;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; font-weight: bolder;\">Where an amendment under </span></span><span style=\"font-size: 1rem; font-weight: bolder;\">the provisions of Order II Rule 2 CPC </span><span style=\"font-size: 1rem; font-family: var(--bs-font-sans-serif); font-weight: bolder;\">is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. It appears from the materials on record that the respondents\r\nherein are the original plaintiffs and the appellant herein is the\r\noriginal defendant in the Suit No. 894 of 1986, pending as on date in\r\nthe High Court of Judicature at Bombay on its original side. The said\r\nsuit has been instituted seeking specific performance of the\r\nagreement dated 08.06.1979. In the alternative, the plaintiffs have\r\nalso prayed for damages. The plaintiffs moved the Chamber <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Summons No. 854 of 2017, inter alia, seeking enhancement of the\r\namount towards damages on the grounds, more particularly, set out\r\nin the affidavit filed in support of the said chamber summons.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. Having heard the learned counsel appearing for the parties and\r\nhaving gone through the materials on record, the following questions\r\nof law fall for the consideration of this Court:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Whether the High Court committed any material\r\nirregularity or jurisdictional error going to the root of the\r\nmatter in passing the impugned order?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Whether the provisions of Order II Rule 2 CPC can be\r\nmade applicable to an amendment application?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Whether the amendment of plaint for the purpose of\r\nenhancing the amount towards damages could be said to\r\nbe hit by the doctrine of constructive res judicata?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Whether the judgment and order passed by a coordinate\r\nBench of this Court in the case of Life Insurance\r\nCorporation of India (supra) between the same parties has\r\nany bearing on the present appeal?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Whether the present appeal is covered by the proviso to\r\nSection 21(5) and Section 22(2) resply of the Specific Relief\r\nAct, 1963 (47 of 1963) (for short, ‘the Act 1963’)?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>49. So far as, Gurbux Singh (supra) is concerned, we may clarify\r\nthat the entire consideration in the said case by this Court was to\r\nthe fact that there was a relinquishment of a claim by the plaintiff\r\ntherein, but the relevant point which was considered by this Court\r\nwas that the relief had become time barred. The ratio of the said\r\njudgment is that the relief being barred by limitation, the Order II\r\nRule 2 of the CPC only came in as an adjunct. However, Gurbux\r\nSingh (supra) makes it clear that the bar of Order II Rule 2 of the\r\nCPC applies only to the subsequent suits.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">50. In the light of the principles discussed and the law laid down by\r\nthe Constitution Bench as also the other decisions discussed above,\r\nwe are of the view that if the two suits and the relief claimed therein\r\nare based on the same cause of action then the subsequent suit will\r\nbecome barred under Order II Rule 2 of the CPC. However, we do not\r\nfind any merit in the contention raised on behalf of the appellant\r\nherein that the amendment application is liable to be rejected by\r\napplying the bar under Order II Rule 2 of the CPC. Order II Rule 2 of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the CPC cannot apply to an amendment which is sought on an\r\nexisting suit.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>52. We are also not impressed by the contention raised on behalf of\r\nthe appellant herein that the amendment application is hit by the\r\nprinciple of constructive res judicata. The principle of constructive\r\nres judicata has no application in the instant case, since there was\r\nno formal adjudication between the parties after full hearing. The\r\nlitigation before this Court has come up at the stage when the courts\r\nbelow allowed the amendment of plaint for the purpose of enhancing\r\nthe amount towards damages in the alternative to the main relief of\r\nspecific performance of the contract.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>64. The plaintiffs in the original plaint claimed for compensation in\r\naddition to a decree for specific performance of the agreement to sell.\r\nTherefore, strictly speaking the provisions of Section 21 of the Act\r\n1963 are not attracted to the facts of the present case. The intention\r\nof the plaintiffs in seeking for amendment of the plaint appears to be\r\nto get an enhanced amount of compensation than what was originally\r\nclaimed in the original plaint which was restricted only to Rs.\r\n1,01,00,000/-. The aforesaid intention becomes apparent when the\r\naverments made in the application praying for amendment are looked\r\ninto inasmuch as, the plaintiffs have stated that in view of the fact\r\nthat in last 30 years there had been a tremendous escalation of the\r\nvalue of the suit property which has an adverse effect on the quantum\r\nof damages, compensation, relief sought for the breach of contract by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the appellant/defendant. According to the plaintiffs the raising of the\r\namount of compensation to Rs. 400,01,00,000/- from Rs.\r\n1,01,00,000/- as claimed in the original plaint has been necessitated\r\nin view of undue delay in the prosecution of the suit which was not\r\nearlier foreseen, which in turn has caused more damage to the\r\nplaintiffs through the years and therefore, they have sought to raise\r\nthe amount of compensation to the present value as stated above\r\nfrom Rs. 1,01,00,000/-.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>66. The two provisos referred to above, deal with the question of\r\npermitting the plaintiff to amend his plaint. It is not, as if, in the\r\nabsence of these two provisos, it is not permissible in law for the\r\nplaintiff to carry out an amendment in his pleading by introducing a\r\nrelief for enhanced compensation. Rule 17 of Order VI of the CPC\r\ndoes confer power on a Court to allow a party to alter or amend his\r\npleading in such manner and on such terms as may be just. This\r\nrule does not stop at that, but it further says that all such\r\namendments should be made as may be necessary for the purpose of\r\ndetermining the real question in controversy between the parties. It\r\nis pertinent to note that this provision which empowers the court in\r\nits discretion to permit a party to amend his pleadings, was already\r\non the statute book, when the Specific Relief Act, 1963 was enacted.\r\nIt can, therefore, be presumed that when the latter legislation was on\r\nthe anvil, the Parliament was aware of this power of the court to\r\npermit amendment of pleadings. Therefore, it cannot be successfully <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">urged that a suit for specific performance falling under the provisions\r\nof the Act, 1963 would not be governed by the provisions of the CPC.\r\nIt is, therefore, clear that to such a suit the provisions contained in\r\nOrder VI Rule 17 of the CPC would apply and a plaintiff who has\r\nearlier failed to incorporate the reliefs for compensation or who has\r\nincorporated the reliefs for compensation but seeks amendment in\r\nthe same, could seek the permission of the court to introduce these\r\nreliefs by way of amendment.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>67. It is important to note that sub-section (5) of Section 21 of the\r\nAct 1963 was originally introduced to resolve the confusion over\r\nwhether the court had the power to grant compensation in a claim\r\nfor specific performance in absence of any pleading to that effect\r\nunder the provisions of the Act 1963. Prior to the enactment of the\r\nAct 1963 the Law Commission in its 9th Law Commission Report\r\nwhile referring to the diverse opinions expressed by the High Courts\r\nrecommended that in no case should compensation be decreed\r\nunless it is claimed by a proper pleading.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>68. In The Arya Pradeshak Pritinidhi Sabha, Sindh, Punjab &\r\nBilochistan v. Lahori Mal & Ors., (1924) 6 Lah LJ 286 : AIR 1924 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Lah 713, the Lahore High Court had held that the court has the\r\npower to award damages in substitution of or in addition to specific\r\nperformance even though the plaintiff has not specifically claimed the\r\nsame in its plaint and written submissions. As against, the Madras\r\nHigh Court in Somasundaram Chettiar v. Chidambaram\r\nChettiar, AIR 1951 Mad 282 held that the court could not award\r\ndamages in absence of a specific claim for damages.\r\n69. In Somasundaram Chettiar (supra), the Madras High Court\r\nheld that the rationale for not allowing a claim for damages in a suit\r\nfor specific performance without a specific pleading is based on the\r\nprinciple that the plaintiff must establish its claim for damages and\r\nthe defendant must be put on notice and correspondingly have an\r\nopportunity to adduce evidence that the damages claimed are\r\nexcessive or that the plaintiff has not suffered any damages.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>70. Our final conclusions may be summed up thus:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(i) Order II Rule 2 CPC operates as a bar against a\r\nsubsequent suit if the requisite conditions for\r\napplication thereof are satisfied and the field of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">amendment of pleadings falls far beyond its purview.\r\nThe plea of amendment being barred under Order II\r\nRule 2 CPC is, thus, misconceived and hence\r\nnegatived.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(ii) All amendments are to be allowed which are\r\nnecessary for determining the real question in\r\ncontroversy provided it does not cause injustice or\r\nprejudice to the other side. This is mandatory, as is\r\napparent from the use of the word “shall”, in the latter\r\npart of Order VI Rule 17 of the CPC.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) The prayer for amendment is to be allowed\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) if the amendment is required for effective\r\nand proper adjudication of the controversy\r\nbetween the parties, and</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) to avoid multiplicity of proceedings, provided</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(a) the amendment does not result in injustice\r\nto the other side,</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(b) by the amendment, the parties seeking\r\namendment does not seek to withdraw any clear <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">admission made by the party which confers a right\r\non the other side and</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(c) the amendment does not raise a time barred\r\nclaim, resulting in divesting of the other side of a\r\nvaluable accrued right (in certain situations).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iv) A prayer for amendment is generally required to be\r\nallowed unless</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) by the amendment, a time barred claim is\r\nsought to be introduced, in which case the fact\r\nthat the claim would be time barred becomes a\r\nrelevant factor for consideration,</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) the amendment changes the nature of the suit,</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) the prayer for amendment is malafide, or</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iv) by the amendment, the other side loses a valid\r\ndefence.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>v) In dealing with a prayer for amendment of\r\npleadings, the court should avoid a hypertechnical\r\napproach, and is ordinarily required to be liberal\r\nespecially where the opposite party can be\r\ncompensated by costs.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>vi) Where the amendment would enable the court to\r\npin-pointedly consider the dispute and would aid in\r\nrendering a more satisfactory decision, the prayer for\r\namendment should be allowed.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(vii) Where the amendment merely sought to introduce\r\nan additional or a new approach without introducing\r\na time barred cause of action, the amendment is liable\r\nto be allowed even after expiry of limitation.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(viii) Amendment may be justifiably allowed where it is\r\nintended to rectify the absence of material particulars\r\nin the plaint.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ix) Delay in applying for amendment alone is not a\r\nground to disallow the prayer. Where the aspect of\r\ndelay is arguable, the prayer for amendment could be\r\nallowed and the issue of limitation framed separately\r\nfor decision.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(x) Where the amendment changes the nature of the\r\nsuit or the cause of action, so as to set up an entirely\r\nnew case, foreign to the case set up in the plaint, the\r\namendment must be disallowed. Where, however, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">amendment sought is only with respect to the relief in\r\nthe plaint, and is predicated on facts which are already\r\npleaded in the plaint, ordinarily the amendment is\r\nrequired to be allowed.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(xi) Where the amendment is sought before\r\ncommencement of trial, the court is required to be\r\nliberal in its approach. The court is required to bear in\r\nmind the fact that the opposite party would have a\r\nchance to meet the case set up in amendment. As\r\nsuch, where the amendment does not result in\r\nirreparable prejudice to the opposite party, or divest\r\nthe opposite party of an advantage which it had\r\nsecured as a result of an admission by the party\r\nseeking amendment, the amendment is required to be\r\nallowed. Equally, where the amendment is necessary\r\nfor the court to effectively adjudicate on the main\r\nissues in controversy between the parties, the\r\namendment should be allowed.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">71. In the overall view of the matter, we are convinced that we\r\nshould not disturb the impugned order passed by the Division Bench\r\nof the High Court, affirming the order passed by the learned Single\r\nJudge allowing the amendment application filed at the instance of\r\nthe plaintiffs.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>72. In the result, this appeal fails and is hereby dismissed with no\r\norder as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n73. Pending application, if any, stands disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '395f4b799a445290727f2037a2b3ce06.png', 'f67b54c43420a08cbf447d8720b28b68.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-05', 1, '', '', '2022-09-02 23:37:22', '2022-09-05 06:29:28'),
(2149, 'cP8HtyTdPplabH59xiXsNTRWH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act, 1996. Section 31(7)(b) does not bar discretion of the arbitrator to grant post-award interest which discretion shall be exercised reasonably and in good faith, taking into account all relevant circumstances. Supreme Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b style=\"font-size: 12pt;\">Morgan Securities and Credits Pvt Ltd Vs Videocon Industries Ltd.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5437 of 2022 decided on 1 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dhananjaya Y Chandrachud and Justice AS Bopanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This appeal arises from a judgment dated 26 February 2020 of the High\r\nCourt of Delhi by which the appeal under Section 37 of the Arbitration and\r\nConciliation Act 19961 against a judgment of the Single Judge dated 7 February\r\n2019 has been dismissed. At the core, the issue is whether the arbitrator has the\r\ndiscretion to grant post-award interest only on the principal sum due under\r\nSection 31(7)(b) of the Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. On 27 January 2003, the appellant and the respondent entered into an\r\nagreement under which the respondent availed of bill discounting facilities from\r\nthe appellant. The appellant disbursed Rs. 5,00,32,656 pursuant to the\r\nagreement. The dues remained unpaid. The appellant issued a notice to the\r\nrespondent on 10 January 2006 demanding the payment of the principal amount\r\nof Rs. 5,00,32,656 as on 17 April 2003, which is the date of default, along with an\r\noverdue interest. Since the respondent did not pay the amount as demanded, the\r\nappellant issued a notice on 31 January 2006, invoking the arbitration clause of\r\nthe agreement.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n3. The sole arbitrator rendered an arbitral award in favour of the appellant on\r\n1 March 2013. The award was corrected on 29 April 2013 and decrees the claim\r\nof the appellant in the amount of Rs. 5,00,32,656. Interest at the rate of (i) twenty\r\none percent per annum has been granted from the date of default to the date of\r\nthe demand notice; (ii) thirty six percent per annum with monthly rests from the\r\ndate of the demand notice to the date of award (“pre-award interest”); and (iii)\r\neighteen percent per annum on the principal amount of Rs. 5,00,32,656 from the\r\ndate of award to the date of payment (“post-award interest”). </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Section 31 provides for the “form and content of arbitral award”. Subsection 7 of Section 31 deals with pre-award and post-award interest. Section\r\n31(7)(a) provides for pre-award interest, that is for the period between the date\r\non which the cause of action arose and the date on which the award is made.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. The contention of the respondent is that Section 31(7)(b) could be invoked\r\nonly when the arbitration award is silent on post-award interest. That is, if the\r\naward does not make a specific provision for post-award interest, then in view of\r\nSection 31(7)(b) of the Act, post-award interest of eighteen percent shall be paid\r\non the ‘sum’, for which purpose the ‘sum’ shall be the aggregate of the principal\r\nand pre-award interest. The argument of Mr Nakul Dewan is that the arbitral\r\ntribunal has the discretion to determine- a) whether post-award interest should be\r\ngranted; b) the ‘sum’ on which the post-award interest is to be granted; and c) the\r\nrate of such interest.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. The interpretation of Section 31(7)(b) has to focus on the meaning of two\r\nphrases - first, the expression “sum”; and second, “unless the award otherwise\r\ndirects”. The phrase ‘sum’ has been interpreted in the opinion of Justice Bobde\r\nand in the concurring opinion of Justice Sapre in Hyder Consulting (supra) to\r\nmean the amount directed to be paid by an arbitral award as arrived in Section\r\n31(7)(a), which would include the aggregate of the principal and the pre-award\r\ninterest. While Justice Sapre was of the view that the arbitrator only has the\r\ndiscretion to determine the rate of post-award interest, Justice Bobde did not <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">expressly discuss the ambit of discretion of the arbitrator while granting postaward interest. In Justice Bobde’s opinion, there was no discussion on whether\r\nthe arbitrator had the discretion to order post-award interest on a part of the ‘sum’\r\nthat was arrived under Section 31(7)(a).</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. The issue before us is whether the phrase ‘unless the award otherwise\r\ndirects’ in Section 31(7)(b) of the Act only provides the arbitrator the discretion to\r\ndetermine the rate of interest or both the rate of interest and the ‘sum’ it must be\r\npaid against. At this juncture, it is crucial to note that both clauses (a) and (b) are\r\nqualified. While, clause (a) is qualified by the arbitration agreement, clause (b) is\r\nqualified by the arbitration award. However, the placement of the phrases is\r\ncrucial to their interpretation. The words, “unless otherwise agreed by the parties”\r\noccurs at the beginning of clause (a) qualifying the entire provision. However, in\r\nclause (b), the words, “unless the award otherwise directs” occurs after the words\r\n‘a sum directed to be paid by an arbitral award shall’ and before the words ‘carry\r\ninterest at the rate of eighteen per cent”. Thereby, those words only qualify the\r\nrate of post-award interest.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. Section 31(7)(a) confers a wide discretion upon the arbitrator in regard to\r\nthe grant of pre-award interest. The arbitrator has the discretion to determine the\r\nrate of reasonable interest, the sum on which the interest is to be paid, that is\r\nwhether on the whole or any part of the principal amount, and the period for\r\nwhich payment of interest is to be made - whether it should be for the whole or\r\nany part of the period between the date on which the cause of action arose and\r\nthe date of the award. When a discretion has been conferred on the arbitrator in\r\nregard to the grant of pre-award interest, it would be against the grain of statutory\r\ninterpretation to presuppose that the legislative intent was to reduce the\r\ndiscretionary power of the arbitrator for the grant of post-award interest under\r\nclause (b). Clause (b) only contemplates a situation where the arbitration award <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is silent on post-award interest, in which event the award-holder is entitled to a\r\npost-award interest of eighteen percent.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. The arbitrator has the discretion to grant post-award interest. Clause (b)\r\ndoes not fetter the discretion of the arbitrator to grant post-award interest. It only\r\ncontemplates a situation in which the discretion is not exercised by the arbitrator.\r\nTherefore, the observations Hyder Consulting (supra) on the meaning of ‘sum’\r\nwill not restrict the discretion of the arbitrator to grant post-award interest. There\r\nis nothing in the provision which restricts the discretion of the arbitrator for the\r\ngrant of post-award interest which the arbitrator otherwise holds inherent to their\r\nauthority.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. The purpose of granting post-award interest is to ensure that the awarddebtor does not delay the payment of the award. With the proliferation of\r\narbitration, issues involving both high and low financial implications are referred\r\nto arbitration. The arbitrator takes note of various factors such as the financial\r\nstanding of the award-debtor and the circumstances of the parties in dispute\r\nbefore awarding interest. The discretion of the arbitrator can only be restricted by\r\nan express provision to that effect. Clause (a) subjects the exercise of discretion\r\nby the arbitrator on the grant of pre-award interest to the arbitral award. However,\r\nthere is no provision in the Act which restricts the exercise of discretion to grant\r\npost-award interest by the arbitrator. The arbitrator must exercise the discretion in\r\ngood faith, must take into account relevant and not irrelevant considerations, and\r\nmust act reasonably and rationally taking cognizance of the surrounding\r\ncircumstances<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. In view of the discussion above, we summarise our findings below:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) The judgment of the two-Judge Bench in SL Arora (supra) was referred\r\nto a three-Judge Bench in Hyder Consulting (supra) on the question of\r\nwhether post-award interest could be granted on the aggregate of the\r\nprincipal and the pre-award interest arrived at under Section 31(7)(a) of\r\nthe Act;\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) Justice Bobde’s opinion in Hyder Consulting (supra) held that the\r\narbitrator may grant post-award interest on the aggregate of the\r\nprincipal and the pre-award interest. The opinion did not discuss the\r\nissue of whether the arbitrator could use their discretion to award postaward interest on a part of the ‘sum’ awarded under Section 31(7)(a);\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iii) The phrase ‘unless the award otherwise directs’ in Section 31(7)(b) only\r\nqualifies the rate of interest;\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iv) According to Section 31(7)(b), if the arbitrator does not grant postaward interest, the award holder is entitled to post-award interest at\r\neighteen percent;\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(v) Section 31(7)(b) does not fetter or restrict the discretion that the\r\narbitrator holds in granting post-award interest. The arbitrator has the\r\ndiscretion to award post-award interest on a part of the sum;\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(vi) The arbitrator must exercise the discretionary power to grant postaward interest reasonably and in good faith, taking into account all\r\nrelevant circumstances; and\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">(vii) By the arbitral award dated 29 April 2013, a post-award interest of\r\neighteen percent was awarded on the principal amount in view of the </span><span style=\"font-size: 12pt;\">judgment of this Court in SL Arora (supra). In view of the above\r\ndiscussion, the arbitrator has the discretion to award post-award\r\ninterest on a part of the ‘sum’; the ‘sum’ as interpreted in Hyder\r\nConsulting (supra). Thus, the award of the arbitrator granting post\r\naward interest on the principal amount does not suffer from an error\r\napparent.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>23. For the reasons indicated above, the appeal against the judgment of the\r\nDelhi High Court dated 26 February 2020 is dismissed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>24. All pending application(s), if any, are disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2b1412d1161ef7c91b2aca3234d0b779.png', 'af6ba830c47c8ba4cdde65604984b90d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-05', 1, '', '', '2022-09-02 23:50:06', '2022-09-05 10:39:34');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2150, 'wqu9tOn0gxlYPG5VOuYOGtAaA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Determining CET rankings of 2021-22 batch students by taking only CET marks is illegal. Karnataka High Court orders fresh ranking for admission to Engineering and Technology courses for the academic year 2022-23 by taking both PUC and CET marks. ', '<p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Ewhwar R and others vs Karnataka Examination Authority <br></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Writ Petition 15429 of 2022 and connected matters decided on 3 September 2022<br></span></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice S.R. Krishna Kumar </span></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Petitioners in all the petitions are students who completed their II PUC /XII standard from the Karnataka State PU Board /CBSE /ICSE/ Equivalent in the year 2021 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and intend to take admission into professional undergraduate Engineering and Technical courses for the academic year 2022-23</span></b></p><p><b>10. Upon perusal of the entire material on record and\r\non consideration of the rival submissions, I am of the view\r\nthat the impugned note dated 30.07.2022 issued by the\r\nKEA to the effect that the II PUC / XII standard marks\r\nobtained by the petitioners in 2021 would not be considered for the purpose of CET ranking for the academic year 2022-\r\n23 deserves to be quashed for the following reasons:-<br></b></p><p><b>? A plain reading of the aforesaid proviso to Rule 4 of\r\nthe said Rules of 2006 makes it explicitly clear that\r\nthe said proviso was applicable for determination of\r\nmerit with respect to marks obtained in the Entrance\r\nTest (CET) for the academic year 2021-22 only and\r\nthe same is restricted / limited only to the said period\r\nonly and not applicable/extended to any other period;\r\nany attempt to extend the applicability of the proviso\r\nto admissions for the academic year 2022-23 would\r\nprove irrational, illogical and unreasonable, since the\r\nproviso is restricted to the Entrance Test (CET)\r\nconducted for the academic year 2021-22; in other\r\nwords, in view of the express language employed in\r\nthe proviso, which was inserted in 2021 and is\r\nrestricted and limited in its applicability only to the\r\nCET 2021 for the academic year 2021-22, the said\r\nproviso cannot be extended to the academic year\r\n2022-23 as sought to be done in the impugned note,\r\nwhich is clearly contrary to the proviso and consequently, the said proviso stood exhausted\r\ncompletely and had spent itself during 2021 itself and\r\nthe same was clearly inapplicable to CET, 2022 for\r\nthe academic year 2022-23. <br></b></p><p><b>? The proviso inserted to Rule 4 of the said Rules of\r\n2006 on 01.09.2021 was restricted / limited to\r\nadmissions to Engineering and Technology courses\r\nfor the academic year 2021-22 and the same cannot\r\nbe made applicable to the academic year 2022-23,\r\nespecially when the said proviso stood exhausted\r\nand spent in 2021 itself and no further amendment\r\nwas made in the year 2022 to Rule 4 in any manner,\r\neither by way of a new proviso or any other\r\namendment to the extant Rules.</b></p><p><b>? The proviso to Rule 4 inserted in 2021 clearly\r\nindicates that its operation and applicability is\r\nrestricted and limited to determination of merit with\r\nreference to the marks obtained in CET conducted\r\nfor 2021-22 and the said CET having already been\r\nconducted, the said proviso does not survive any\r\nlonger and is not applicable to CET conducted in the academic year 2022-23 and the impugned note is\r\ncontrary to the Rules and deserves to be quashed on\r\nthis ground also. </b></p><p><b>? The bulletin issued by the KEA clearly\r\nprescribes/provides for eligibility to gain admission by\r\ntaking both II PUC / XII standard marks and CET\r\nmarks in equal proportion and in the entire bulletin,\r\nthere is absolutely no mention as regards not\r\nconsidering the II PUC / XII standard marks for\r\nCET ranking for the academic year 2022-23 and\r\nconsequently, the impugned note is contrary to the\r\nbulletin and other documents of the KEA in relation to\r\nCET, 2022 and the same deserves to be quashed on\r\nthis ground as well. <br></b></p><p><b>? The KEA having unequivocally and unambiguously\r\nrepresented and held out that eligibility for admission\r\nto Engineering and Technology courses for the\r\nacademic year 2022-23 would be based on taking\r\nboth II PUC / XII standard marks and CET marks in\r\nequal proportion, is estopped from issuing the\r\nimpugned note directing the said marks not to be considered for the purpose of CET rankings for 2022-\r\n23 and as such, the impugned note is contrary to the\r\nprinciples of legitimate expectation and promissory\r\nestoppel and the same deserves to be quashed on\r\nthis ground also. <br></b></p><p><b>? The conduct of the respondents in applying the\r\nproviso to Rule 4 dated 01.09.2021 to all candidates,\r\nby taking only their CET marks for the academic year\r\n2021-22, irrespective of when they completed II\r\nPUC / XII standard, including students of the earlier\r\nyears i.e., 2018, 2019, 2020 etc., clearly indicates\r\nthat the respondents were not entitled to apply the\r\nproviso only to the students, who completed II PUC /\r\nXII standard in 2021 and not to other students of\r\nother years and on this score also, the impugned\r\nnote deserves to be quashed. <br></b></p><p><b>? A perusal of the impugned note indicates that the\r\nsame is neither an executive order as contemplated\r\nunder Article 162 of the Constitution of India nor a\r\nsubordinate legislation and since the impugned note\r\ndoes not even purport to amend Rule 4 of the said Rules of 2006, the impugned note has no legal\r\nsanctity or validity and deserves to be quashed. <br></b></p><p><b>? The respondents have not placed any material in\r\nsupport of the impugned note which is unreasoned,\r\nlaconic, non-speaking, cryptic and does not disclose\r\nany application of mind and in the absence of any\r\nfoundation / background shown / established by the\r\nrespondents prior to the issuance of the impugned\r\nnote, the same is violative of principles of natural\r\njustice and the same deserves to be quashed.\r\n</b></p><p><b>? The marks obtained by the petitioners in II PUC / XII\r\nstandard in the year 2021 are undisputedly taken into\r\nconsideration for admission to other undergraduate\r\ncourses for the academic year 2022-23 and\r\nconsequently, non-consideration of the same only for\r\nEngineering and Technology courses is\r\ndiscriminatory and arbitrary apart from being\r\nirrational, unreasonable and unfair and the same\r\ndeserves to be quashed.  </b></p><p><b>? The impugned note dated 30.07.2022 issued\r\nsimultaneously along with the CET rankings which were also issued on the same day is also contrary to\r\nthe well settled principle of law that “the rules of the\r\ngame/eligibility criteria cannot be changed after it has\r\nbegun and/or the selection process is nearing\r\ncompletion”. In this context, it is contended that the\r\nimpugned note dated 30.07.2022 which seeks to\r\nalter the extant selection criteria after the selection\r\nprocess on 18.04.2022 and at the time of its\r\ncompletion on 30.07.2022 is illegal and contrary to\r\nthe aforesaid principle and the same deserves to be\r\nquashed on this ground as well.\r\n</b></p><p><b>? The bulletin issued by the KEA and other documents\r\npertaining to CET 2022, including eligibility,\r\nqualifications, merit, etc., which provide taking of\r\nboth II PUC / XII standard marks and CET marks in\r\nequal proportion do not either explicitly or implicitly\r\nexclude the marks obtained by petitioners and other\r\nstudents in 2021 and in the absence of any such\r\nexclusion, the impugned note is contrary to the\r\naforesaid documents issued by the KEA as well as the said Rules of 2006 and the same deserves to be\r\nquashed.<br></b></p><p><b>? The conduct of the KEA in not intimating/informing\r\npetitioners and other students who completed II\r\nPUC / XII standard in 2021 that their marks would\r\nnot be considered for the purpose of CET rankings in\r\nthe academic year 2022-23 until they issued the\r\nimpugned note on 30.07.2022, has resulted in\r\ndenying an opportunity to the petitioners and other\r\nstudents to surrender their previous year’s II PUC /\r\nXII standard marks and retake the II PUC / XII\r\nstandard Examinations once again is yet another\r\nfactor/circumstance that would vitiate the impugned\r\norder.\r\n</b></p><p><b>? Insofar as the contention urged by the respondents\r\nwith regard to applicability of the proviso to Rule 4 for\r\nthe academic year 2022-23 insofar as the petitioners\r\nand other students who have completed their II PUC\r\n/ XII standard in the year 2021 is concerned, as\r\nstated supra, a plain and literal reading of the said\r\nproviso and the provisions contained in Rules 3 and 4 will clearly indicate that while both II PUC / XII\r\nstandard marks and CET marks would be taken in\r\nequal proportion for the purpose of admission to\r\nEngineering and Technology in terms of Rules 3 and\r\n4, only insofar as CET for the academic year 2021–\r\n22 is concerned, the proviso carves out an exception\r\nby reckoning / taking only the CET marks by\r\nrestricting and limiting the operation of the proviso\r\nonly to 2021-22 and not for admissions for the\r\nacademic year 2022-23 and consequently, the said\r\ncontention urged by the respondents cannot be\r\naccepted.\r\n</b></p><p><b>? Insofar as the reliance placed upon the statistics as\r\nregards the number of students, who took CET in\r\n2021 who are repeating the same in 2022, as against\r\nstudents who took CET for the first time in 2022 is\r\nconcerned, the said statistics cannot be made the\r\nbasis to either interpret the proviso to Rule 4 nor\r\ncome to the conclusion that the impugned note is\r\nlegal, valid and proper and consequently, even this\r\n35\r\ncontention urged by the respondents cannot be\r\naccepted.\r\n</b></p><p><b>? Insofar as the contention urged by the respondents\r\nthat since the petitioners and other students who\r\npassed II PUC / XII standard in the year 2021 did\r\nnot take the qualifying examinations, the marks\r\nreceived by them for the purpose of admission to\r\nEngineering and Technology courses in CET, 2022\r\ncannot be taken at all is concerned, accepting the\r\nsaid contention and taking their II PUC / XII standard\r\nmarks obtained by them through internal assessment\r\nas “Nil”, would lead to and result in absurd\r\nconsequences which cannot be countenanced in the\r\nfacts and circumstances of the instant case and as\r\nsuch, even this contention urged by the respondents\r\ncannot be accepted.<br></b></p><p><b>11. Though both sides have placed reliance upon\r\ndecisions in support of their respective contentions, having\r\nregard to the fact that the present petitions deserve to be\r\ndisposed of in the peculiar / special facts andcircumstances obtaining in the instant case, I do not deem\r\nit necessary to refer to the said decisions / judgments for\r\nthe purpose of disposal of the present petitions.\r\n</b></p><p><b>12. In the result, I pass the following:-\r\nORDER\r\n</b></p><p><b>(i) All the petitions are hereby allowed.\r\n</b></p><p><b>(ii) The impugned note dated 30.07.2022 passed by\r\nthe Karnataka Examinations Authority and the CET\r\nRanking issued by the KEA on 30.07.2022 for admission to\r\nundergraduate courses in Engineering and Technology are\r\nhereby quashed.\r\n</b></p><p><b>(iii) The respondents are directed to redo the CET\r\nrankings for admission to undergraduate courses in\r\nEngineering and Technology for the academic year 2022-\r\n23 strictly in accordance with Rules 3 and 4 of the\r\nKarnataka Selection of Candidates for Admission to\r\nGovernment Seats in Professional Educational Institutions\r\nRules, 2006 and without reference to proviso to Rule 4\r\ninserted vide Government Order No.ED147TEC2020 dated 01.09.2021 as expeditiously as possible, bearing in mind\r\nthe observations made in this order. </b><br></p>', 'f89d065b3d1a43c5b700216d76f9558a.jpg', '573bb247fb59224636621c230f7ae874.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-05', 1, '', '', '2022-09-05 02:36:40', '2022-09-05 12:53:12'),
(2151, 'L3EFVolIbR4Tnz2RcQknNpsJP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'No income tax can be levied or deductible on compensation for acquiring lands under the Karnataka Industrial Areas Development Act in view of 2013 land acquisition Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sri Balaji Corporate Services and others Vs Union of India Ministry and Finance and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 4306 of 2018 decided on 21 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.R. Krishna Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The petitioners in W.P.No.43206/2018 claim to be the owners of subject properties bearing property identification No.R1E-235 and R1E-235A situated at Sadaramangala Village (now under BBMP) White Field Main Road, Bengaluru. The subject properties have been developed by the petitioners into a business complex and a luxury boutique hotel. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2.1 Petitioners contend that the subject properties were acquired by the respondents for the purpose of Bangalore Metro Rail Project – Phase-II. Among the properties, subject property bearing property identification No.R1E-235 was acquired vide preliminary notification under Section 28(1) of the Karnataka Industrial Areas Development Act, 1966 (for short ‘the KIAD Act’) issued on 22.09.2015 and the final notification dated 04.04.2016 was issued under Section 28(4) of the KIAD Act, pursuant to which, the impugned General Award at Annexure-AC was passed on 25.10.2018. Similarly, subject property bearing identification No.R1E-235A was acquired vide preliminary notification dated 16.12.2017 and final notification dated 25.05.2018, pursuant to which, the impugned General Award at Annexure-AD was passed on 25.10.2018.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The petitioners in W.P.No.53718/2017 claim to be the  owners  of  subject  properties  bearing  property identification No.R1-171 and R1E-171 situated at Hoodi Village, K.R.Puram-3 Hobli, Bangalore East Taluk, Bangalore Urban District. It is contended that the subject properties were acquired by the respondents for the purpose of Bangalore Metro Rail Project – Phase-II. Among the properties, subject property bearing property identification No.R1-171 was acquired vide preliminary notification issued on 27.04.2015 and final notification dated 29.12.2015, while subject property bearing property identification No.R1-E-171 was acquired vide preliminary notification issued on 03.07.2017 and final notification dated 25.05.2017. But, no award has been passed so far; however, the KIADB has issued an Official Memorandum dated 06.07.2017 directing payment of compensation in favour of the petitioner under the Land Acquisition Act, 1894. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. The writ petitioners in both the petitions are aggrieved by the impugned awards, official memorandums, endorsements, communications, correspondence etc., by and between the State Government, KIADB and BMRCL, the respondents herein insofar as the same relate to payment of compensation for acquisition of the subject properties viz., in relation to the quantum of compensation, deduction of income tax at source(TDS) on the compensation and non-grant of exemption from payment of income tax on the compensation.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. The following points arise for consideration in the present petitions:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space:pre\">	</span>Whether the writ petitions are maintainable in view of the remedy of seeking enhancement of compensation before the reference court being available to the petitioners, who have already sought for such reference? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>Whether the petitioners are entitled to compensation under the Land Acquisition Act, 1894 OR under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, in respect of their lands acquired pursuant to preliminary notification issued after 01.01.2014 under Section 28(1) of the Karnataka Industrial Areas Development Act, 1966? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space:pre\">	</span>Whether the compensation payable in favour of the petitioners is exempt from payment of tax deduction at source(TDS) and also from payment of income tax in view of Section 96 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and Section 194-LA of the Income Tax Act amended vide Finance Act 67 of 2017 w.e.f 01.04.2017 as well as the CBDT Circular dated 25.10.2016?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Re. Point No.1:- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. The respondents have contended that by claiming compensation under the said Act of 2013, petitioners are actually claiming higher compensation than the compensation awarded in their favour under the said Act of 1894 and since there exists an equally efficacious and alternative remedy of seeking enhancement of compensation by way of reference to the reference court, the present petitions are not maintainable particularly, when the petitioners have already sought for reference seeking enhancement of compensation. In this context, it is relevant to state that there is no nexus or connection between the claim of the petitioners that they are entitled to compensation under the said Act of 2013 and their claim to seek enhancement of compensation before the reference court; both claims/contentions are distinct, different and mutually exclusive and independent of each other and merely because petitioners are entitled to seek / have sought for reference, the said circumstance cannot be made the basis to come to the conclusion that the present petitions are not maintainable as held in Union of India vs. Pushpavathi & others - (2018)3 SCC 28, Smt.Channarajammanni vs. Union of India & others -AIR 1988 KAR 49 (DB) and the LAO Hanmakonda vs. Pittala Saranga Pani- 1998 +(2) APLJ 20.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.1 As held in the aforesaid decisions, merely because the remedy to seek enhancement before the reference court is available to the petitioners and they have sought for reference, there is no bar/prohibition for the petitioners to contend that they are entitled to compensation under the said Act of 2013 and not under the said Act of 1894; in other words, the right to seek compensation under the said Act of 2013 on the ground that the same was applicable and not the said Act of 1894 is completely different, distinct and mutually exclusive and independent from the right to seek reference on the ground that the compensation awarded under either of the enactments is meager and inadequate and deserves to be enhanced. Under these circumstances, I am of the considered opinion that notwithstanding the availability of the remedy in favour of the petitioners to seek enhancement before the reference court which they had already sought for, the present petitions seeking awarding of compensation under the said Act of 2013 and not under the said of 1894 under which the impugned awards have been passed are maintainable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Point No.1 is accordingly answered in favour of the petitioners by holding that the present petitions are maintainable.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Re: Point No.2: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. Petitioners have contended that they are entitled to compensation under the said Act of 2013 and the impugned awards and the decisions taken by the respondents awarding compensation under the said Act of 1894 are illegal, arbitrary and deserve to be quashed and that the respondents are to be directed to pass awards in favour of the petitioners under the said Act of 2013.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.13 The cumulative effect of the aforesaid facts and circumstances make it unmistakably clear that not only the respondents have unequivocally and unambiguously decided, resolved, accepted and acquiesced to the fact that the land losers were entitled to payment of compensation under the said Act of 2013 in respect of KIADB acquisitions initiated pursuant to notification issued under Section 28(1) of the KIAD Act after 01.01.2014, but the respondents have also passed awards and paid compensation to such land losers under the said Act of 2013. Further, as stated supra, the entitlement of the land losers to receive compensation under the said Act of 2013 and the liability of the respondents to pass awards and pay the same has same has been recognised, accepted, confirmed and affirmed by this Court in the aforesaid litigations which have has attained finality and become conclusive and binding upon the State and KIADB. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.14 Under these circumstances, I am of the considered opinion that in the light of the undisputed fact that the subject lands of the petitioners have been acquired pursuant to notification issued under Section 28(1) of the KIAD Act after 01.01.2014 when the said Act of 2013 came into force, petitioners would be entitled to compensation under the said Act of 2013 and not under the said Act of 1894 which was clearly not applicable for the purpose of payment of compensation in favour of the petitioners. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.15 Insofar as the other contentions urged by the petitioners with regard to payment of compensation under the said Act of 2013 are concerned, viz., parity in payment of compensation under different enactments, Section 30 of the KIAD Act (prior to amendment) being legislation by reference and not legislation by incorporation, amendment to Section 30 of the KIAD Act by the Karnataka Industrial Areas Development (Amendment) Act, 2022 (Karnataka Act No. 20 of 2022) being retrospective in nature and operation etc., are concerned, in view of the aforesaid facts and circumstances and my findings above that since the subject lands were notified for acquisition under Section 28(1) of the KIAD Act subsequent to 01.01.2014 when the said Act of 2014 came into force and the petitioners are entitled to compensation from the respondents under the said Act of 2013, the other contentions urged by both sides need not be gone into in the fact situation obtaining in the instant case, in particular the undisputed fact that the lands have been notified for acquisition under Section 28(1) of the KIAD Act subsequent to 01.01.2014. Under these circumstances, the aforesaid other contentions urged by both sides with regard to applicability of the said Act of 2013 in relation to compensation payable to the land losers are not gone into and the same are left / kept open to be decided in an appropriate case.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> Point No.2 is answered in favour of the petitioners by holding that they are entitled to compensation under the said Act of 2013 and not under the said Act of 1894 and consequently, the impugned awards, endorsements, orders, communications, official memorandums etc., issued/passed by the respondents deserve to be quashed and the respondents are to be directed to pass fresh awards and do all such necessary acts, deeds and things etc., for the purpose of paying compensation to the petitioners towards acquisition of the subject lands under the said Act of 2013.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>Re. Point No.3:- </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>11. The next question that arises for consideration is, whether the compensation payable in favour of the petitioners is exempt from payment of tax deduction at source(TDS) and also from payment of income tax<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.4<span style=\"white-space:pre\">	</span>Under these circumstances, having regard to Article 265 of the Constitution of India, I am of the considered opinion that compensation payable in favour of the petitioners, whose lands were notified for acquisition subsequent to 01.01.2014 would be exempt from payment of income tax as well as exempt from deduction of tax deduction at source(TDS) and the impugned endorsements, communications, orders, actions, etc., issued/passed by the revenue are illegal, arbitrary and without jurisdiction or authority of law and liable to be quashed.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.5<span style=\"white-space:pre\">	</span>Under similar circumstances in relation to lands acquired for Metro Railways, a Learned Single Judge of the Kerala High Court in the case of Viswanathan M vs. The Chief Commissioner and others - 2020 (2) KLJ 309 and a Division Bench of the Andhra Pradesh High Court in the case of C.Nanda Kumar v. Union of India and others -2017 SCC Online Hyd 55 have held that compensation payable to land losers would be exempt from payment of income tax.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.7<span style=\"white-space:pre\">	</span>Viewed from this angle also, though the question as to whether the said amendment to Section 30 is prospective or retrospective has not been gone into in the present order and the same is left open to be decided in an appropriate case, in the light of the undisputed fact that the respondents would necessarily have to pass fresh/modified awards and do all such necessary acts, deeds and things etc., in favour of the petitioners under the said Act of 2013, Section 96 of the said Act of 2013, CBDT Circular dated 25.10.2016, Section 194-LA and Section 10(37) of the I.T.Act would become applicable to the petitioners who would be entitled to the benefit of exemption from payment of income tax and from tax deduction at source(TDS) in respect of the awards and compensation in their favour. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.8<span style=\"white-space:pre\">	</span>In view of the aforesaid facts and circumstances, the contentions urged on behalf of the revenue cannot be accepted. I am therefore of the considered view that all awards and compensation payable / paid subsequent to 01.01.2014 when the said Act of 2013 came into force would be exempt from payment of income tax and also exempt from tax deduction at source (TDS) and the land losers would not be liable to pay income tax in respect of the said awards and compensation. Point No.3 is also answered in favour of the petitioners by holding that the impugned awards, endorsements, orders, communications, actions etc., of the respondents directing payment of income tax and tax deduction at source(TDS) on the subject compensation amounts are illegal, arbitrary and without jurisdiction or authority of law and that the same deserve to be quashed and the respondents are to be directed to pass fresh/modified awards and do all such necessary acts, deeds and things etc., in favour of the petitioners under the said Act of 2013 by exempting the petitioners from payment of income tax and tax deduction at source(TDS) on the compensation amounts paid/payable in their favour.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. On overall consideration of the entire material on record, the legal principles that emerge from the aforesaid discussion can be summarised as under:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>All awards passed and compensation payable / paid in favour of land losers pursuant to preliminary notification under Section 28(1) of the Karnataka Industrial Areas Development Act, 1966, issued subsequent to 01.01.2014 would have to be under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and not under the Land Acquisition Act, 1894. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>All awards passed and compensation payable / paid in favour of land losers under the awards or by way of agreement subsequent to 01.01.2014 in respect of KIADB acquisitions would be exempt from payment of income tax. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space:pre\">	</span>All awards passed and compensation payable / paid in favour of land losers under the awards or by way of agreement subsequent to 01.01.2014 in respect of KIADB acquisitions would also be exempt from tax deduction at source (TDS). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>W.P.No.43206/2018 and W.P.No.53718/2017 are hereby allowed;</b></font><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4c9dbd206505b2389ed00585bd51d7ef.jpg', '9b182686b322a1e77befa051c66a393e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-05', 1, '', '', '2022-09-05 03:10:19', '2022-09-05 12:08:06');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2157, 'pao2KphhVIRrkJ0rmRfIbo4EG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘’Known sources of income’’ under Section 13(1)e) of the Prevention of Corruption Act, 1988 means the sources known to the prosecution and not the sources known to the accused and within the knowledge of the accused. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>State Vs R. Soundirarasu.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1452-1453 of 2022 decided on 5 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dinesh Maheshwari and Justice J.B. Pardiwala.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. These appeals are at the instance of the State of Tamil Nadu\r\nthrough the Deputy Superintendent of Police, Vigilance and\r\nAnti-Corruption, Salem District, Tamil Nadu and are directed against </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the two judgments and orders passed by the High Court of Madras\r\ndated 27.04.2017 allowing the criminal revision applications\r\npreferred by the respondents herein (original accused persons)\r\ndischarging them from the prosecution under Section 13(2) read with\r\n13(1)(e) of the Prevention of Corruption Act, 1988 (for short, “Act\r\n1988”) read with Section 109 of the Indian Penal Code (for short, “the\r\nIPC”).</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. The Respondents in these appeals are husband and wife. The\r\nRespondent No.1 - R. Soundirarasu at the relevant point of time was\r\nserving as a Motor Vehicle Inspector (Grade 1) at Namakkal during\r\nthe check period, i.e., from 01.01.2002 to 31.03.2004. The\r\nRespondent No. 2, namely, Suguna is the wife of the Respondent\r\nNo. 1.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. The Respondent No. 2 is a commerce graduate and claims to be\r\nhaving a separate source of income. She was a partner in a\r\npartnership firm running in the name of S.K. Mat Industries along\r\nwith one R. Kumar w.e.f. 23.10.1993. The partnership came to be\r\ndissolved on 31.03.2003, and, thereafter she continued as a sole\r\nproprietor.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. It is the case of the Respondent No. 2 that she has been paying\r\nthe income tax from 1990 onwards and her IT Returns are being\r\nscrutinized by the appropriate authorities.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. It appears from the materials on record that a First Information\r\nReport (FIR) came to be registered against the Respondent No. 1\r\nherein dated 19.09.2005 at the Police Station, Vigilance and\r\nAnti-Corruption, District Salem for the offences under the Act 1988\r\nas enumerated above<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>47. Now, the reason why we say that the impugned orders passed\r\nby the High Court are utterly incomprehensible is because the High\r\nCourt has not been able to comprehend the true scope and ambit of\r\nSection 239 of the CrPC. The High Court has also not been able to\r\ncomprehend in what set of circumstances the revisional powers\r\nunder Section 397 read with Section 401 of the CrPC are to be\r\nexercised.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>52. The provisions which deal with the question of framing of charge\r\nor discharge, relatable to: (i) a sessions trial or, (ii) a trial of warrant\r\ncase, or (iii) a summons case, are contained in three pairs of Sections\r\nunder the CrPC. These are Sections 227 and 228 resply in so far as,\r\nthe sessions trial is concerned; Sections 239 and 240 resply relatable\r\nto the trial of warrant cases; and Sections 245(1) and 245(2) resply\r\nin respect of summons case.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>59. In the context of trial of a warrant case, instituted on a police\r\nreport, the provisions for discharge are to be governed as per the\r\nterms of Section 239 which provide that a direction for discharge can\r\nbe made only for reasons to be recorded by the court where it\r\nconsiders the charge against the accused to be groundless. It would,\r\ntherefore, follow that as per the provisions under Section 239 what <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">needs to be considered is whether there is a ground for presuming\r\nthat the offence has been committed and not that a ground for\r\nconvicting the accused has been made out. At that stage, even strong\r\nsuspicion founded on material which leads the Court to form a\r\npresumptive opinion as to the existence of the factual ingredients\r\nconstituting the offences alleged would justify the framing of charge\r\nagainst the accused in respect of that offence, and it is only in a case\r\nwhere the Magistrate considers the charge to be groundless, he is to\r\ndischarge the accused after recording his reasons for doing so.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">60. Section 239 envisages a careful and objective consideration of\r\nthe question whether the charge against the accused is groundless\r\nor whether there is ground for presuming that he has committed an\r\noffence. What Section 239 prescribes is not, therefore, an empty or\r\nroutine formality. It is a valuable provision to the advantage of the\r\naccused, and its breach is not permissible under the law. But if the\r\nJudge, upon considering the record, including the examination, if\r\nany, and the hearing, is of the opinion that there is \"ground for\r\npresuming\" that the accused has committed the offence triable under\r\nthe chapter, he is required by Section 240 to frame in writing a\r\ncharge against the accused. The order for the framing of the charge </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is also not an empty or routine formality. It is of a far-reaching\r\nnature, and it amounts to a decision that the accused is not entitled\r\nto discharge under Section 239, that there is, on the other hand,\r\nground for presuming that he has committed an offence triable under\r\nChapter XIX and that he should be called upon to plead guilty to it\r\nand be convicted and sentenced on that plea, or face the trial.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>68. Section 239 has to be read along with Section 240 of the CrPC.\r\nIf the Magistrate finds that there is prima facie evidence or the\r\nmaterial against the accused in support of the charge (allegations),\r\nhe may frame charge in accordance with Section 240 of the CrPC.\r\nBut if he finds that the charge (the allegations or imputations) made\r\nagainst the accused does not make out a prima facie case and does\r\nnot furnish basis for framing charge, it will be a case of charge being\r\ngroundless, so he has no option but to discharge the accused. Where\r\nthe Magistrate finds that taking cognizance of the offence itself was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contrary to any provision of law, like Section 468 of the CrPC, the\r\ncomplaint being barred by limitation, so he cannot frame the charge,\r\nhe has to discharge the accused. Indeed, in a case where the\r\nMagistrate takes cognizance of an offence without taking note of\r\nSection 468 of the CrPC, the most appropriate stage at which the\r\naccused can plead for his discharge is the stage of framing the\r\ncharge. He need not wait till completion of trial. The Magistrate will\r\nbe committing no illegality in considering that question and\r\ndischarging the accused at the stage of framing charge if the facts so\r\njustify.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>72. The ambit and scope of exercise of power under Sections 239\r\nand 240 of the CrPC, are therefore fairly well settled. The obligation\r\nto discharge the accused under Section 239 arises when the\r\nMagistrate considers the charge against the accused to be\r\n\"groundless\". The Section mandates that the Magistrate shall\r\ndischarge the accused recording reasons, if after (i) considering the\r\npolice report and the documents sent with it under Section 173, (ii)\r\nexamining the accused, if necessary, and (iii) giving the prosecution\r\nand the accused an opportunity of being heard, he considers the\r\ncharge against the accused to be groundless, i.e., either there is no\r\nlegal evidence or that the facts are such that no offence is made out\r\nat all. No detailed evaluation of the materials or meticulous\r\nconsideration of the possible defences need be undertaken at this\r\nstage nor any exercise of weighing materials in golden scales is to be\r\nundertaken at this stage - the only consideration at the stage of\r\nSection 239/240 is as to whether the allegation/charge is\r\ngroundless.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>73. This would not be the stage for weighing the pros and cons of\r\nall the implications of the materials, nor for sifting the materials\r\nplaced by the prosecution- the exercise at this stage is to be confined <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to considering the police report and the documents to decide whether\r\nthe allegations against the accused can be said to be “groundless”.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>76. Thus, the revisional power cannot be exercised in a casual or\r\nmechanical manner. It can only be exercised to correct manifest error\r\nof law or procedure which would occasion injustice, if it is not\r\ncorrected. The revisional power cannot be equated with appellate\r\npower. A revisional court cannot undertake meticulous examination\r\nof the material on record as it is undertaken by the trial court or the\r\nappellate court. This power can only be exercised if there is any legal\r\nbar to the continuance of the proceedings or if the facts as stated in\r\nthe charge-sheet are taken to be true on their face value and accepted\r\nin their entirety do not constitute the offence for which the accused\r\nhas been charged. It is conferred to check grave error of law or\r\nprocedure.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>78. The High Court has acted completely beyond the settled\r\nparameters, as discussed above, which govern the power to discharge\r\nthe accused from the prosecution. The High Court could be said to\r\nhave donned the role of a chartered accountant. This is exactly what\r\nthis Court observed in the case of Thommandru Hannah\r\nVijayalakshmi @ T.H. Vijayalakshmi (supra). The High Court has\r\ncompletely ignored that it was not at the stage of trial or considering\r\nan appeal against a verdict in a trial. The High Court has enquired\r\ninto the materials produced by the accused persons, compared with\r\nthe information complied by the investigation agency and\r\npronounced a verdict saying that the explanation offered by the\r\naccused persons deserves to be accepted applying the doctrine of\r\npreponderance of probability. This entire exercise has been justified\r\non account of the investigating officer not taking into the explanation\r\noffered by the public servant and also not taking into consideration\r\nthe lawful acquired assets of the wife of the public servant i.e. the\r\nRespondent No. 2 herein.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>79. By accepting the entire evidence put forward by the accused\r\npersons applying the doctrine of preponderance of probability, the\r\ncase put up by the prosecution cannot be termed as “groundless”. As <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">observed by this Court in C.D.S. Swami (supra) that the accused\r\nmight have made statements before the investigating officer as to his\r\nalleged sources of income, but the same, strictly, would not be\r\nevidence in the case.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">80. Section 13(1)(e) of the Act 1988 makes a departure from the\r\nprinciple of criminal jurisprudence that the burden will always lie on\r\nthe prosecution to prove the ingredients of the offences charged and\r\nnever shifts on the accused to disprove the charge framed against\r\nhim. The legal effect of Section 13(1)(e) is that it is for the prosecution\r\nto establish that the accused was in possession of properties\r\ndisproportionate to his known sources of income but the term\r\n“known sources of income” would mean the sources known to the\r\nprosecution and not the sources known to the accused and within\r\nthe knowledge of the accused. It is for the accused to account\r\nsatisfactorily for the money/assets in his hands. The onus in this\r\nregard is on the accused to give satisfactory explanation. The accused\r\ncannot make an attempt to discharge this onus upon him at the stage\r\nof Section 239 of the CrPC. At the stage of Section 239 of the CrPC,\r\nthe Court has to only look into the prima facie case and decide\r\nwhether the case put up by the prosecution is groundless.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>81. In the overall view of the matter, we are convinced that the\r\nimpugned orders passed by the High Court are not sustainable in\r\nlaw and deserve to be set aside. The circumstances emerging from\r\nthe record of the case, prima facie, indicate the involvement of the\r\naccused persons in the alleged offence. Having regard to the\r\nmaterials on record, it cannot be said that the charge against the\r\naccused persons is groundless. There are triable issues in the matter.\r\nIf there are triable issues, the Court is not expected to go into the\r\nveracity of the rival versions.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>82. In the result, both the appeals succeed and are hereby allowed.\r\nThe impugned orders passed by the High Court discharging the\r\naccused persons from the prosecution are hereby set aside.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>84. Pending application, if any, also stands disposed of.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '276e91ab8200bfd73971faa658fccd8d.jpg', '6c2757a5ee7443d22e5346485e05e186.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-07', 1, '', '', '2022-09-06 19:32:06', '2022-09-07 18:06:24'),
(2153, 'nj2HZT3uElE4ZQzzoGrYu072H', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'It is up to the legislature to determine the amount of discretion that is accorded to the relevant authorities under each statute.  Courts should not unduly erode the powers vested in authorities to carry out their statutory duties. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b style=\"font-size: 12pt;\">Abraham Patani of Mumbai and Another Vs The State of Maharashtra and others</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5929 of 2022 decided on 2 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Surya Kant and Justice Abhay S. Oka.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. The genesis and course of the present dispute spans several decades and includes one prior round of litigation before this Court. The crux of the matter arises from the opposition by Appellants to the construction of a road through their property by Respondent No. 2, the Municipal Corporation of Mumbai. The property in question was acquired by the Appellants in 1959, and a building known as the “INGA Building” was constructed on it in 1965. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. The possibility of having a road through the Appellants’ land was floated initially in a Development Plan (“DP”) of 1976. After this, the road was realigned in 1984 in order to secure smooth passage through Appellants’ land. Appellants raised objections in this regard in 1992 and the planned road was deleted from the DP via notification dated 12.11.1992 issued by Respondent No. 1. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. During this period, various complaints were allegedly received from residents in surrounding areas regarding the need for a road in order to connect the Mahakali Caves with the Central Industrial District. Respondent No. 1 issued a directive under Section 37(1) of the Maharashtra Regional Town Planning Act, 1966 (“MRTP Act”) on 07.06.1993, acknowledging the need for a connecting road but stating that it was “not feasible” to pursue construction of an 18.30 metre road through the Appellants’ land. Thus, Respondent No. 2 was instructed to analyse the legal and technical aspects of the project before submitting a proposal for setting up the road with minor modifications in the DP under Section 37 of the MRTP Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. Meanwhile, Appellants completed construction of a bungalow on their land in 1994. However, subsequent sanctions sought by the Appellants for further buildings were rejected by the Municipal Corporation on the ground that a proposal for creation of a link road through the property was under consideration. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23. Under the MCC Act, the power to make a new public street is derived from Section 291. For the purpose of making a new street, Section 296 of the Act empowers the Commissioner to acquire land, subject to fulfilment of the conditions stipulated in Sections 90­92. For our purposes, Section 91 is the consequential provision since Appellants’ land could not, evidently, be acquired by agreement and had to be procured under the terms of the procedure provided therein.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>24. The entire scheme of land acquisition for the purpose of laying a new road line is provided within the contours of Sections 91, 291(a) and 296. There is undoubtedly a certain degree of overlap between these provisions, and Section 37 of the MRTP Act as they deal with procurement of land. However, the latter is relevant in the context of a DP whereas the MCC Act regulates the manner in which the Mumbai Municipal Corporation operates. Moreover, merely because both statutes are concerned with land acquisition, may not necessarily result in conflict between them. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>35. Upon a close examination of these judgments, we fail to see how they assist the Appellants’ case. In both instances, the concern was regarding frustration of the DP by either importation of Section 11A of the LAA into the scheme of the MRTP Act (Girnar Traders 2011), or due to a conflict between the DP and the town planning scheme (Manohar Joshi). Neither of these eventualities have arisen in the present case. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>36. Even apart from that, the principle on which this Court proceeded in the cases cited above is that external statutes or alternate schemes/plans under the MRTP Act or otherwise, should not be allowed to frustrate the DP or the overall objective of planned development under the MRTP Act. As the DP is the primary means of achieving the purpose of the MRTP Act, any violence done to the former would necessarily affect the latter. Conversely, if the former is left essentially undisturbed then it cannot be said that the spirit and scheme of the MRTP Act has not been honoured. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>37. The construction of the link road in the present case does not, in any way, frustrate the DP or defeat the overall objective of the statute. The motivation for building the connector is to alleviate traffic congestion in the area caused due to the need for commuters to take a protracted detour around the boundaries of Appellants’ property. It is only in instances where a requirement of the DP is being abrogated that a conflict arises and the observations in Girnar Traders 2011 (Supra) and Manohar Joshi (Supra) become relevant</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>40. This Court should not, therefore, unduly erode the powers vested in Respondent No. 2 to carry out its statutory duties under Section 61. This is especially true in a case where the object and purpose of the MRTP Act is left unaffected by the actions taken by the Municipal Corporation. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>41. In this background, we find significant merit in learned Counsel, Mr. Godbole’s argument, that the MRTP Act and the MMC Act exist in separate spheres without any preconceived hierarchy. There may be instances where there is overlap, such as when a DP is formulated for a municipal area where the municipal corporation also exercises jurisdiction. However, even in such a scenario the two statutes would exist side­by­side and supplement each other.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>43. For these reasons, we reject the contention of the Appellants that the only means by which the link road through their property could have been constructed was through an amendment to the DP under Section 37 of the MRTP Act. Respondent No. 2 had the option to either follow the procedure under the MRTP Act, or to invoke the parallel process provided under Sections 91, 291(a) and 296 of the MMC Act. Respondent No. 2’s recourse to the latter cannot be said to defeat any provision of the DP or be contrary to the scheme of the MRTP Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>45. Once we have ascertained that the two legislations in question, the MRTP Act and the MMC Act, exist in separate spheres with only incidental overlap, the possibility of a colourable exercise of power by Respondent No. 2 falls away. As elaborated above, there is no direct or indirect bar on the exercise of powers under Sections 91, 291(a), and 296 of the MMC Act which are all in furtherance of Respondent No. 2’s responsibilities under Section 61. The only exception to this would be in those cases where a provision of the DP itself is being abrogated. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>47. In our considered opinion, this does not advance Appellants’ case either. Merely because a right to object to a modification of a DP exists under Section 37 of the MRTP Act does not automatically give it an ascendant position in the hierarchy that Appellants seek to create between the MRTP Act and the MMC Act. It is up to the legislature to determine the amount of discretion that is accorded to the relevant authorities under each statute. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>74. Thus, there are two important distinguishing factors between Girnar Traders 2007 (Supra) and our scenario. The first is the mandate and purpose of Sections 126 & 127 which are meant to ensure the DP is acted upon swiftly and efficiently. The prejudice caused to a private citizen if his land is reserved for a public purpose under the MRTP Act but then not acquired for years afterwards was eloquently elaborated upon by the majority. The individual would be deprived of the usage of his land due to the reservation, while not receiving compensation for it under the LAA. It was to safeguard against such an eventuality that strict adherence to Sections 126 & 127 of the MRTP Act was necessary. This rationale cannot be transplanted to Section 91 of the MMC Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>85. Based on the discussion above, we are satisfied that Section 91 of the MMC Act has been substantially complied with in this case. We now turn our attention to the second contention by the Appellants on the issue of compliance with procedural requirements, which is the purported absence of an order by the State Govt. for initiating land acquisition proceedings under the LAA. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>100. For the reasons detailed above, we find that Respondent No. 2 validly exercised its powers under the MMC Act to direct the acquisition of the Appellants’ land. The argument by the Appellants that the MRTP Act maintains supremacy over the MMC Act is not the correct position of law, in our opinion, and the two statutes exist sideby­side with some degree of overlap. The powers under the MMC Act remain intact even in cases where they cover a subject that is also provided for in the MRTP Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>101. The procedure contemplated under Section 91 of the MMC Act to commence proceedings under the LAA for procuring land was substantially complied with. The part of the provision relied upon by the Appellants is directory in nature and requires substantial compliance rather than strict compliance. The objections raised by the Appellants regarding certain aspects of the process are unfounded as no prejudice was caused to them, and the purported defects are not nearly grave enough to cause an annulment of the entire process. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>102. In light of these findings, we do not consider it necessary to comment upon the submissions by learned Senior Counsel, Mr. Naphade, regarding the bona fides of the Appellants and their entitlement to relief on the grounds of equity. Considering the other issues which have been answered in favour of the Respondents, this point becomes moot.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>103. In the final outcome, we dismiss the present appeal as being devoid of merit. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>104. Pending applications, if any, are also disposed of. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8fab312993b567c737ccbf3c78142d76.JPG', '2c4b3153b0a4ff1620ec83c260d6a3ba.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-06', 1, '', '', '2022-09-05 17:23:04', '2022-09-06 08:29:41'),
(2156, 'FSsU3b4KDZ1Yqaj7Clxq9J3F1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Unless there is a \'true dispute\' between the parties, arbitration clause in government contracts cannot be invoked on the basis of a \'make believe dispute\' to withhold bills. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chiranjeevi M Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 46302 of 2018 decided on 3 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petitioner, a registered Class-I Contractor is grieving before the Writ Court against the respondent-Government and its Tourism Development Corporation for not honouring his final bills despite certification of completion of the tender work. Learned counsel appearing for the petitioner vehemently argues that there is absolutely no reason for not honouring the bills and that, in the fitness of things, “he leaves certain things to the wild imagination of the Court”. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2. After service of notice, the respondent Government & the director of Tourism Department have entered appearance through the learned AGA. Similarly, the second respondent – Tourism Corporation is represented by its Sr. Panel Counsel. The respondents resist the writ petition contending that: disputed facts are involved and therefore, writ remedy is not suitable; matter is contractual in nature and therefore, petitioner should be relegated to civil remedy; there is an Arbitration Clause and therefore, Writ Court cannot interfere. So contending, they seek dismissal of the writ petition.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(h) The vehement contention of learned AGA appearing for the Government and the learned Panel Counsel appearing for the Corporation that there is an Arbitration Clause and therefore, petitioner should be relegated to arbitration, cannot be countenanced for obvious reasons: firstly, question of invoking arbitration clause arises when there is a “true dispute” between the parties. There being no contentious issue about the completion of the tender work and there being specific reports about satisfactory completion of the work, petitioner cannot be compelled to go for arbitration on the basis of a “make believe dispute”. Secondly, several representations of the petitioner resulted into a fully positive response from the side of respondent –Corporation, its Managing Director specifically asking the Government to release the fund to enable him to honour the long pending bills of petitioner. Never the Government took the pains even to reply to the Corporation, let alone to the poor petitioner. Thirdly, the so called complaint about unsatisfactory completion of the work is concerned, it is apparently time barred since such complaints were raised for the first time, more than a year having lapsed since the structure was handed over to the Corporation and on being inaugurated, it was put to routine use.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(j) The last contention of the Panel Counsel for the Corporation that the petition involves disputed questions of fact and therefore, a Writ Court cannot undertake the adjudication, again is difficult to agree with. It is not that every disputed question of fact should deter Writ Court from examining the matter. A dispute which otherwise can be fairly adjudged on the basis of pleadings of the parties accompanied by the evidentiary material on record, cannot be relegated to adjudication elsewhere, more particularly when the respondents happen to be the governmental bodies answering the definition of ‘State’ under Article 12. It is not that the so called dispute squarely falls within the realm of private law, either; there is Karnataka Transparency in Public Procurements Act, 1999 and Rules promulgated thereunder. There are sufficient elements of public law. A contract to which State is a party, does not create an island completely immune from judicial review under Article 226 & 227. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(k) This is a fit case for levy of exemplary costs for the ill-treatment meted out to the scrupulous citizen who had done the work for the State entities. A message should loudly go to the quarters that be, that the courts would not tolerate indolence on the part of public bodies when interest of the citizen is put to peril. Both the sides having been heard even on this aspect of the matter, this court  is  of  the  considered  opinion  that  the  second respondent-Corporation should be saddled with a cost of Rs.2,00,000/- payable to the petitioner in addition to interest at a reasonable rate for the delay in making payment in terms of undisputed bills, that are already authenticated by the concerned. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>In the above circumstances, this Writ Petition succeeds; a Writ of Mandamus issues to the second respondent to pay to the petitioner a sum of Rs.34,85,179/- plus the retention amount, if any, with interest at the rate of 12% per annum along with a cost of Rs.2,00,000/-, and report compliance to the Registrar General of this Court within six weeks. Delay if brooked would attract an additional interest of 1% per mensem. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>It is open to the second respondent to recover the cost and interest from its erring officials including the Managing Director(s), in accordance with law.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '19e20a9d0be4653500247a79dec36ace.JPG', 'c1bd7d49a48ecfff8ac50960fe8de4d1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-07', 1, '', '', '2022-09-06 18:53:32', '2022-09-07 12:55:18');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2154, 'jKQM7wu99fAfQ1KHp0tTMC2yZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Right to property, though not a fundamental right, is still a constitutional right under Article 300A of the Constitution of India. A person can be deprived of the rights of the property only in a manner known to law. Supreme Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b style=\"font-size: 12pt;\">Jagan Singh and Co Vs Ludhiana Improvement Trust and others.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 371 of 2022 decided on 2 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sanjay Kishan Kaul, Justice S. Ravindra Bhat and Justice M.M. Sundresh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The dispute about the non-payment of acquired land under the\r\nLand Acquisition Act, 1984 (hereinafter referred to as the ‘LA Act’) has\r\nspanned over more than three decades.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Respondents no. 2 to 5 were the original owners of the land,\r\nmeasuring 8 Kanals and 11 ½ Marlas, which was acquired by Ludhiana\r\nImprovement Trust, Respondent no.1 (hereinafter referred to as “the\r\nRespondent Trust”).<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The compensation determined by the Respondent Trust was not\r\nacceptable to the land owners, thus, reference was sought in terms of\r\nSection 18 of the LA Act. The Land Acquisition Tribunal made an award\r\nenhancing the compensation to the owners by determining the\r\ncompensation as Rs.4,27,068/- along with future interest at 9%, per\r\nannum, from the date of the application. The Respondent Trust,\r\nhowever, did not pay the amount while it continued to enjoy the land.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. A perusal of the proceedings shows that Respondent Trust, as <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">objector, produced no evidence despite repeated opportunities nor even\r\nfiled the list of witnesses. This is recorded in the proceedings on\r\n17.04.1993, 08.05.1993, 29.05.1993 (and was called on more than one\r\noccasion). The Executing Court noticed that no specific fraud or\r\nmisrepresentation has been mentioned in the objections by the objector\r\nnor any substantial irregularities have been pointed out. The objector has\r\nneither deposited the decreetal amount nor the amount equal to 5% of the\r\npurchase amount for payment to the auction purchaser as is required\r\nunder Order XXI Rule 89 of the said Code. Thus, the objections were\r\nnot even maintainable. In view of the said provision, no sale could be set\r\naside unless the Court is satisfied that the applicant has sustained\r\nsubstantial injury by reason of irregularity or fraud in completing or\r\nconducting the sale.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. We have given thought to the matter and the submissions of the\r\nlearned counsel and have no doubt whatsoever that the dragging of the\r\nproceedings for three decades have been a grave injustice to the\r\nAppellant, who have been deprived of the enjoyment of the property\r\ndespite having paid the full auction price 30 years back. Merely because\r\nthe Respondent No. 1 is an Improvement Trust does not give it a licence\r\nto take a citizen’s right for a ride.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. We may notice at the threshold itself that though the right in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">property is not a fundamental right, it is still a constitutional right under\r\nArticle 300A of the Constitution of India. Thus, a person can be deprived\r\nof the rights of the property only in a manner known to law. The\r\nacquisition proceedings in respect of the land in question sought to\r\ndeprive the owners of their land which had to be paid for in terms of the\r\nprovisions of the LA Act. The amount of compensation was determined\r\nby the reference court under Section 18 of the LA Act and the matter was\r\nnot taken further. Thus, both the owner and acquiring beneficiary agreed\r\nto the compensation as determined by the Tribunal. The next step should\r\nhave been to immediately pay the amount to the owners which did not\r\nhappen. On the other hand, the owners were made to run from pillar to\r\npost and ultimately the execution proceedings were filed six years after\r\nthe amount had been so determined. This conduct of the Respondent\r\nTrust itself is not condonable and this is what resulted in the proceedings\r\nfor execution, the auction and the matter being dragged on for decades.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32. In our view, there is no irregularity or discrepancy in identification\r\nof the property when the site plan was filed with it. We have reproduced\r\nthe site plan so as to make it explicitly clear how the bounded property\r\nwas clearly described. No doubt originally Khasra No.271 was not\r\nmentioned and only Khasra No.272 was mentioned but that would have\r\nbeen relevant if there was a problem in identification of the property and\r\nthe ownership of the property. This was not so.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>33. We may also notice that when the objections were filed by the\r\nRespondent Trust, issues were framed. On the basis of the issues framed\r\nevidence had to be led. Despite various opportunities the Respondent\r\nTrust did not lead any evidence and we have dealt with this aspect\r\nfactually in detail while referring to the proceedings before the Executing\r\nCourt in the first round. The second round arose only on account of the\r\nbenefit given by this Court in the first round of proceedings that the\r\nRespondent Trust should be able to assist the Court. In fact, the\r\nmaximum indulgence which could be shown was shown to them <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">predicated largely on the fact that Respondent No.1 was an Improvement\r\nTrust. It is a fact that in the various stages of execution proceedings what\r\nwas required to be done by the Respondent Trust was never done. It is\r\nnot one single failure. In the execution petition itself the amount to be\r\nrealised and the value of the property were both mentioned. There was\r\nno objection by the Respondent Trust that the property was far more\r\nvaluable and, thus, only a part of the property should be sold. If one may\r\nsay, the Respondent Trust would have saved the day even at that time by\r\ndepositing the amount due to the owners. It did not do so. The fact that\r\nultimately the property fetched a larger price cannot be held against the\r\nAppellant who participated in the process and offered the appropriate\r\nprice, which was accepted. The Respondent Trust did not even comply\r\nwith the requirement of Order XXI Rule 89 by depositing the decretal\r\namount along with 5 per cent of the auction amount. The Respondent\r\nTrust behaved as if it had some superior right to appropriate the property\r\nof the owners without paying for it contrary to the mandate of the LA\r\nAct. That would be hardly called a case of fraud in such a situation</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. We also fail to understand how the dual test of material irregularity\r\nof fraud and substantial injury is satisfied in the present case. In fact, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">neither part of the dual test is satisfied. The Respondent Trust cannot be\r\npermitted to say that merely because the property was auctioned there is\r\nsome substantial injury. No doubt there were some structures shown in\r\nthe site plan itself, however, they were merely basic structures of a\r\ngodown and a quarter</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>39. We must note in the end that Order XXI of the said Code is\r\nexhaustive and in the nature of a complete Code as to how the execution\r\nproceedings should take place. This is the second stage after the success\r\nof the party in the civil proceedings. It is often said in our country that\r\nanother legal battle, more prolonged, starts in execution proceedings\r\ndefeating the right of the party which has succeeded in establishing its\r\nclaim in civil proceedings. This is exactly what has happened in the\r\npresent case. The various stages of Order XXI of the said Code when\r\nviolated cannot given right to some extra indulgence merely because the\r\nRespondent Trust is an Improvement Trust. There cannot be a licence to\r\nprolong the litigation ad infinitum.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>40. We have, thus, no hesitation in setting aside the impugned judgment of the High Court dated 06.03.2018 and sustain the view taken\r\nby the Executing Court in the order dated 10.11.2012 as sustained by the\r\nAppellate Court in its order dated 14.09.2015. We also grant costs to the\r\nAppellant against Respondent No.1 quantified at Rs.1 lakh. We only\r\nhope that, at least, now the Appellant would be able to get the benefit of\r\nusing the land they purchased three decades ago.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>41. The appeal is accordingly allowed. </b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '17a8aa82f8498be195f4555e7ac517ec.png', 'aed1544e328fe75f9d0e0b940fc61ea5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-06', 1, '', '', '2022-09-05 17:56:24', '2022-09-06 06:14:36'),
(2155, 'UTv5BowxRs9w5OSH6sBpDSzSj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land-owners whose lands were acquired for KIADB after 1 January 2014 are entitled to compensation under the Right to Fair Compensation and Resettlement Act, 2013. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Sri Balaji Corporate Services and others Vs Union of India Ministry and Finance and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 4306 of 2018 decided on 21 April 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice S.R. Krishna Kumar.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">2. The petitioners in W.P.No.43206/2018 claim to be the owners of subject properties bearing property identification No.R1E-235 and R1E-235A situated at Sadaramangala Village (now under BBMP) White Field Main Road, Bengaluru. The subject properties have been developed by the petitioners into a business complex and a luxury boutique hotel.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">2.1 Petitioners contend that the subject properties were acquired by the respondents for the purpose of Bangalore Metro Rail Project – Phase-II. Among the properties, subject property bearing property identification No.R1E-235 was acquired vide preliminary notification under Section 28(1) of the Karnataka Industrial Areas Development Act, 1966 (for short ‘the KIAD Act’) issued on 22.09.2015 and the final notification dated 04.04.2016 was issued under Section 28(4) of the KIAD Act, pursuant to which, the impugned General Award at Annexure-AC was passed on 25.10.2018. Similarly, subject property bearing identification No.R1E-235A was acquired vide preliminary notification dated 16.12.2017 and final notification dated 25.05.2018, pursuant to which, the impugned General Award at Annexure-AD was passed on 25.10.2018.</font><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">3. The petitioners in W.P.No.53718/2017 claim to be the  owners  of  subject  properties  bearing  property identification No.R1-171 and R1E-171 situated at Hoodi Village, K.R.Puram-3 Hobli, Bangalore East Taluk, Bangalore Urban District. It is contended that the subject properties were acquired by the respondents for the purpose of Bangalore Metro Rail Project – Phase-II. Among the properties, subject property bearing property identification No.R1-171 was acquired vide preliminary notification issued on 27.04.2015 and final notification dated 29.12.2015, while subject property bearing property identification No.R1-E-171 was acquired vide preliminary notification issued on 03.07.2017 and final notification dated 25.05.2017. But, no award has been passed so far; however, the KIADB has issued an Official Memorandum dated 06.07.2017 directing payment of compensation in favour of the petitioner under the Land Acquisition Act, 1894.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">4. The writ petitioners in both the petitions are aggrieved by the impugned awards, official memorandums, endorsements, communications, correspondence etc., by and between the State Government, KIADB and BMRCL, the respondents herein insofar as the same relate to payment of compensation for acquisition of the subject properties viz., in relation to the quantum of compensation, deduction of income tax at source(TDS) on the compensation and non-grant of exemption from payment of income tax on the compensation.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">8. The following points arise for consideration in the present petitions:-</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(i)<span style=\"white-space: pre;\">	</span>Whether the writ petitions are maintainable in view of the remedy of seeking enhancement of compensation before the reference court being available to the petitioners, who have already sought for such reference?</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(ii)<span style=\"white-space: pre;\">	</span>Whether the petitioners are entitled to compensation under the Land Acquisition Act, 1894 OR under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, in respect of their lands acquired pursuant to preliminary notification issued after 01.01.2014 under Section 28(1) of the Karnataka Industrial Areas Development Act, 1966?</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(iii)<span style=\"white-space: pre;\">	</span>Whether the compensation payable in favour of the petitioners is exempt from payment of tax deduction at source(TDS) and also from payment of income tax in view of Section 96 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and Section 194-LA of the Income Tax Act amended vide Finance Act 67 of 2017 w.e.f 01.04.2017 as well as the CBDT Circular dated 25.10.2016?<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">Re. Point No.1:-</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">9. The respondents have contended that by claiming compensation under the said Act of 2013, petitioners are actually claiming higher compensation than the compensation awarded in their favour under the said Act of 1894 and since there exists an equally efficacious and alternative remedy of seeking enhancement of compensation by way of reference to the reference court, the present petitions are not maintainable particularly, when the petitioners have already sought for reference seeking enhancement of compensation. In this context, it is relevant to state that there is no nexus or connection between the claim of the petitioners that they are entitled to compensation under the said Act of 2013 and their claim to seek enhancement of compensation before the reference court; both claims/contentions are distinct, different and mutually exclusive and independent of each other and merely because petitioners are entitled to seek / have sought for reference, the said circumstance cannot be made the basis to come to the conclusion that the present petitions are not maintainable as held in Union of India vs. Pushpavathi & others - (2018)3 SCC 28, Smt.Channarajammanni vs. Union of India & others -AIR 1988 KAR 49 (DB) and the LAO Hanmakonda vs. Pittala Saranga Pani- 1998 +(2) APLJ 20.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">9.1 As held in the aforesaid decisions, merely because the remedy to seek enhancement before the reference court is available to the petitioners and they have sought for reference, there is no bar/prohibition for the petitioners to contend that they are entitled to compensation under the said Act of 2013 and not under the said Act of 1894; in other words, the right to seek compensation under the said Act of 2013 on the ground that the same was applicable and not the said Act of 1894 is completely different, distinct and mutually exclusive and independent from the right to seek reference on the ground that the compensation awarded under either of the enactments is meager and inadequate and deserves to be enhanced. Under these circumstances, I am of the considered opinion that notwithstanding the availability of the remedy in favour of the petitioners to seek enhancement before the reference court which they had already sought for, the present petitions seeking awarding of compensation under the said Act of 2013 and not under the said of 1894 under which the impugned awards have been passed are maintainable.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">Point No.1 is accordingly answered in favour of the petitioners by holding that the present petitions are maintainable.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">Re: Point No.2:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">10. Petitioners have contended that they are entitled to compensation under the said Act of 2013 and the impugned awards and the decisions taken by the respondents awarding compensation under the said Act of 1894 are illegal, arbitrary and deserve to be quashed and that the respondents are to be directed to pass awards in favour of the petitioners under the said Act of 2013.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">10.13 The cumulative effect of the aforesaid facts and circumstances make it unmistakably clear that not only the respondents have unequivocally and unambiguously decided, resolved, accepted and acquiesced to the fact that the land losers were entitled to payment of compensation under the said Act of 2013 in respect of KIADB acquisitions initiated pursuant to notification issued under Section 28(1) of the KIAD Act after 01.01.2014, but the respondents have also passed awards and paid compensation to such land losers under the said Act of 2013. Further, as stated supra, the entitlement of the land losers to receive compensation under the said Act of 2013 and the liability of the respondents to pass awards and pay the same has same has been recognised, accepted, confirmed and affirmed by this Court in the aforesaid litigations which have has attained finality and become conclusive and binding upon the State and KIADB.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">10.14 Under these circumstances, I am of the considered opinion that in the light of the undisputed fact that the subject lands of the petitioners have been acquired pursuant to notification issued under Section 28(1) of the KIAD Act after 01.01.2014 when the said Act of 2013 came into force, petitioners would be entitled to compensation under the said Act of 2013 and not under the said Act of 1894 which was clearly not applicable for the purpose of payment of compensation in favour of the petitioners.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">10.15 Insofar as the other contentions urged by the petitioners with regard to payment of compensation under the said Act of 2013 are concerned, viz., parity in payment of compensation under different enactments, Section 30 of the KIAD Act (prior to amendment) being legislation by reference and not legislation by incorporation, amendment to Section 30 of the KIAD Act by the Karnataka Industrial Areas Development (Amendment) Act, 2022 (Karnataka Act No. 20 of 2022) being retrospective in nature and operation etc., are concerned, in view of the aforesaid facts and circumstances and my findings above that since the subject lands were notified for acquisition under Section 28(1) of the KIAD Act subsequent to 01.01.2014 when the said Act of 2014 came into force and the petitioners are entitled to compensation from the respondents under the said Act of 2013, the other contentions urged by both sides need not be gone into in the fact situation obtaining in the instant case, in particular the undisputed fact that the lands have been notified for acquisition under Section 28(1) of the KIAD Act subsequent to 01.01.2014. Under these circumstances, the aforesaid other contentions urged by both sides with regard to applicability of the said Act of 2013 in relation to compensation payable to the land losers are not gone into and the same are left / kept open to be decided in an appropriate case.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">Point No.2 is answered in favour of the petitioners by holding that they are entitled to compensation under the said Act of 2013 and not under the said Act of 1894 and consequently, the impugned awards, endorsements, orders, communications, official memorandums etc., issued/passed by the respondents deserve to be quashed and the respondents are to be directed to pass fresh awards and do all such necessary acts, deeds and things etc., for the purpose of paying compensation to the petitioners towards acquisition of the subject lands under the said Act of 2013.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">Re. Point No.3:-</span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">11. The next question that arises for consideration is, whether the compensation payable in favour of the petitioners is exempt from payment of tax deduction at source(TDS) and also from payment of income tax<br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">11.4<span style=\"white-space: pre;\">	</span>Under these circumstances, having regard to Article 265 of the Constitution of India, I am of the considered opinion that compensation payable in favour of the petitioners, whose lands were notified for acquisition subsequent to 01.01.2014 would be exempt from payment of income tax as well as exempt from deduction of tax deduction at source(TDS) and the impugned endorsements, communications, orders, actions, etc., issued/passed by the revenue are illegal, arbitrary and without jurisdiction or authority of law and liable to be quashed.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">11.5<span style=\"white-space: pre;\">	</span>Under similar circumstances in relation to lands acquired for Metro Railways, a Learned Single Judge of the Kerala High Court in the case of Viswanathan M vs. The Chief Commissioner and others - 2020 (2) KLJ 309 and a Division Bench of the Andhra Pradesh High Court in the case of C.Nanda Kumar v. Union of India and others -2017 SCC Online Hyd 55 have held that compensation payable to land losers would be exempt from payment of income tax.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">11.7<span style=\"white-space: pre;\">	</span>Viewed from this angle also, though the question as to whether the said amendment to Section 30 is prospective or retrospective has not been gone into in the present order and the same is left open to be decided in an appropriate case, in the light of the undisputed fact that the respondents would necessarily have to pass fresh/modified awards and do all such necessary acts, deeds and things etc., in favour of the petitioners under the said Act of 2013, Section 96 of the said Act of 2013, CBDT Circular dated 25.10.2016, Section 194-LA and Section 10(37) of the I.T.Act would become applicable to the petitioners who would be entitled to the benefit of exemption from payment of income tax and from tax deduction at source(TDS) in respect of the awards and compensation in their favour.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">11.8<span style=\"white-space: pre;\">	</span>In view of the aforesaid facts and circumstances, the contentions urged on behalf of the revenue cannot be accepted. I am therefore of the considered view that all awards and compensation payable / paid subsequent to 01.01.2014 when the said Act of 2013 came into force would be exempt from payment of income tax and also exempt from tax deduction at source (TDS) and the land losers would not be liable to pay income tax in respect of the said awards and compensation. Point No.3 is also answered in favour of the petitioners by holding that the impugned awards, endorsements, orders, communications, actions etc., of the respondents directing payment of income tax and tax deduction at source(TDS) on the subject compensation amounts are illegal, arbitrary and without jurisdiction or authority of law and that the same deserve to be quashed and the respondents are to be directed to pass fresh/modified awards and do all such necessary acts, deeds and things etc., in favour of the petitioners under the said Act of 2013 by exempting the petitioners from payment of income tax and tax deduction at source(TDS) on the compensation amounts paid/payable in their favour.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">12. On overall consideration of the entire material on record, the legal principles that emerge from the aforesaid discussion can be summarised as under:-</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(i)<span style=\"white-space: pre;\">	</span>All awards passed and compensation payable / paid in favour of land losers pursuant to preliminary notification under Section 28(1) of the Karnataka Industrial Areas Development Act, 1966, issued subsequent to 01.01.2014 would have to be under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and not under the Land Acquisition Act, 1894.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(ii)<span style=\"white-space: pre;\">	</span>All awards passed and compensation payable / paid in favour of land losers under the awards or by way of agreement subsequent to 01.01.2014 in respect of KIADB acquisitions would be exempt from payment of income tax.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(iii)<span style=\"white-space: pre;\">	</span>All awards passed and compensation payable / paid in favour of land losers under the awards or by way of agreement subsequent to 01.01.2014 in respect of KIADB acquisitions would also be exempt from tax deduction at source (TDS).</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">ORDER</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(i)<span style=\"white-space: pre;\">	</span>W.P.No.43206/2018 and W.P.No.53718/2017 are hereby allowed;</span></font></span></p>', 'a096b6de114ba7b98dd08b66a02da82d.jpg', '4218ce8113e1815641ba61825648f402.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-06', 1, '', '', '2022-09-06 01:08:21', '2022-09-06 12:53:25');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2161, 'L7XLhdApLuS8vZ2kWY9NAooye', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Test. whatsapppppp', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; font-weight: bolder;\">Considering the dominant position occupied by WhatsApp, the investigation proposed to be conducted by CCI does not warrant interference, and res judicata would, thus, not be applicable in the instant case.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Whatsapp LLC Vs Competition Commission of India and another.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">LPA 163 of 2021 decided on 25 August 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. The facts, in brief, leading to the instant Appeals are as under:-</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">i. Prior to 25.08.2016, WhatsApp (the Appellant in LPA 163/2021), a messaging platform, was governed by its Terms of Service and Privacy Policy of July 2012. In the year 2014, WhatsApp was acquired by Facebook (the Appellant in LPA 164/2021). Facebook Inc. is now known as “Meta Platforms”, however, for ease of comprehension, this Court shall refer to the Appellant in LPA 164/2021 by its former nomenclature.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">ii. On 25.08.2016, the Terms and Services and the Privacy Policy of WhatsApp (hereinafter referred to as “2016 Policy”) was updated, and WhatsApp users were informed of Facebook\'s acquisition of WhatsApp and how Facebook would use WhatsApp’s information for its advertisement and products. A one-time opportunity was given to WhatsApp users to opt out of Facebook using their information that was shared over WhatsApp. However, users who joined WhatsApp after the 2016 Policy, were not offered this option<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">26. At the outset, it becomes pertinent to delineate the objective of the Competition Act, 2002, and the role of the CCI. The objective of the Act is set out in the Preamble itself, i.e. to establish a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers, and to ensure the freedom of trade carried on by other participants in markets, in India, and for matters connected therewith or incidental thereto. Chapter II of the Competition Act prohibits certain agreements, abuse of dominant position, and regulation of combinations, with Section 4 specifically prohibiting the abuse of dominant position. Chapter IV of the Act deals with provisions which set out the duties, powers and functions of the CCI, with Section 18 stating that it shall be the duty of the Commission to eliminate practices relating to the principles set down in the Preamble itself [Refer to Competition Commission of India v. State of Mizoram and Ors., 2022 SCC OnLine SC 63].<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">28. The primary issue that has been submitted before this Court is with regard to the overlapping jurisdiction of the CCI and the Constitutional Courts, and whether CCI should abstain from exercising its jurisdiction to maintain comity between decisions of different authorities on the same issues. In this context, the Appellants have placed heavy reliance on Competition Commission of India v. Bharti Airtel (supra) to submit that therein the sectoral regulator, i.e. TRAI, had been given leeway by the Supreme Court to conduct its inquiry, over CCI.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">30. A reading of the aforesaid paragraphs of the Judgement indicates that the sole issue therein was a conflict between the jurisdiction of a sectoral regulator and the market regulator. The Supreme Court came to a finding that the matter pertained to the telecom sector, which was specifically regulated by the TRAI Act. However, it noted that the jurisdiction of TRAI would not oust that of CCI to deal with violations of Competition Act and violations thereunder. Moreover, Paragraph 100 of the Judgement states that </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in the case therein, the dispute pertained to how Incumbent Dominant Operators (IDOs) had not given Points of Interconnect (POIs) as per the license conditions, and Reliance Jio Infocomm Ltd. (RJIL) had specifically approached TRAI for the settlement of this dispute. TRAI, being the authority that would mandate the adherence to licensing conditions, was, therefore, deemed fit to be seized of the matter before the charge of investigation could be given to the CCI.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">31. It is the contention of the Appellants that since the underlying issues arising before the Apex Court and this Court, and the investigation that is sought to be conducted by the CCI are common, this can potentially lead to conflicting opinions. This contention of the Appellants is not acceptable. It is the case of the Appellants that while the Apex Court is looking into whether the 2021 Policy is violative of the right to privacy under Article 21 of the Constitution of India or not, the investigation by CCI is confined to whether the 2021 Policy is in furtherance of the dominant position occupied by WhatsApp and institutes anti-competitive practices. The sphere of operation of both are vastly different. Neither this Court nor the Supreme Court are analysing the 2021 Policy through the prism of competition law.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">36. Moreover, the contention of the Appellants that the CCI in Vinod Kumar Gupta (supra) has already assessed the 2016 Policy, and has come to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">conclusion that the breach of the IT Act, 2000, does not fall within the purview of the CCI, is irrelevant on the ground that, as has been stated in the CCI Order as well, the CCI is only concerned with data accumulation that may result in exploitative and exclusionary competitive practices as well as the effect of data sharing on market capture and competitors’ offerings. Furthermore, it is pertinent to note that the 2021 Policy is a substantially modified version of the 2016 Policy inasmuch as the 2016 Policy had an “opt-out” option, which is absent from the 2021 Policy that places its users in a “take-it-or-leave-it” situation. It is the “opt-out” option that primarily led to CCI rendering its conclusion that the 2016 Policy did not violate the Competition Act, 2002. However, in the face of changed circumstances, considering the dominant position occupied by WhatsApp, the investigation proposed to be conducted by CCI does not warrant interference, and res judicata would, thus, not be applicable in the instant case. In view of this, the fact that the Order of the CCI in Vinod Kumar Gupta (supra) has been upheld by the NCLAT vide Order dated 02.08.2022 is of no relevance and does not sway the opinion of this Court. Similarly, the emphasis placed by the Appellants on the letter dated 18.05.2021 is wholly irrelevant as the mere mentioning of the Competition Act does not denote that MeiTY is seized of the violations that may be incited by the 2021 Policy. The sphere of jurisdiction occupied by MeiTY is different from that of the CCI, and solely because the said letter alludes to possible violations of the Act does not oust the jurisdiction of the CCI. Per contra, the letter only strengthens the contention of Respondent No.1 that there does exist a prima facie violation of the provisions of Competition Act, 2002. It is further a matter of public knowledge that the Personal Data Protection Bill, as of date, has been withdrawn. </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">40. The learned Single Judge, after a careful consideration of the CCI Order dated 24.03.2021, has also arrived at the same conclusion that WhatsApp assumes a dominant position in the relevant product market and the relevant geographical market. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Therefore, as can be discerned from the foregoing, WhatsApp occupies a dominant position in a market for OTT messaging apps through smartphones in India.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">44. It is not in dispute that WhatsApp occupies a dominant position in the relevant product market and that there exists a strong lock-in effect which renders its users incapable of shifting to another platform despite dissatisfaction with the product – as is exemplified by how, despite an increase in the downloads of Telegram and Signal when the 2021 Policy was announced, the number of users of WhatsApp have remained unchanged. By and large, to ensure retention of its user base and to prevent any other disruptive technology from entering the market, data is utilised by tech companies to customise and personalise their own platforms so that its userbase remains hooked. When data concentration is seen through this prism, it does give meaning to the new adage that “data is the new oil”, and, as noted in the CCI Order dated 24.03.2021, it raises competition concerns because it prima facie amounts to imposition of unfair terms and conditions upon its users, thereby violating Section 4(2)(a)(i) of the Act.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">45. Furthermore, as Paragraph 33 of the CCI Order dated 24.03.2021 (which has been reproduced hereinabove) states, accumulation and processing of personal data from WhatsApp, in addition to its own direct data collection, can be done by Facebook for the purposes of consumer profiling that allows for targeted ads, inter alia, which in turn has the potential to undermine competitive processes and create further barriers to market entry in stark violation of Section 4(2)(c) and (e) of the Act. In view of these observations, it is evident that CCI has, after due consideration, arrived at its decision that a prima facie case of violation of provisions of the Competition Act, 2002, has been made out against the Appellants herein that would require an investigation to be initiated by the DG. The learned Single Judge has taken into consideration all these factors before observing that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">concentration of data in the hands of WhatsApp may raise competition concerns, thereby resulting in the violation of Section 4 of the Act.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">46. Additionally, the reliance of the Appellants on CCI’s Order in Vinod Kumar Gupta (supra) is misplaced for the simple reason that 2016 Policy provided its users the option to “opt-out” of sharing user account information with Facebook within 30 days of agreeing to the updated Terms of Service and Privacy Policy. The 2021 Policy, however, places its users in a “take-it-or-leave-it” situation, virtually forcing its users into agreement by providing a mirage of choice, and then sharing their sensitive data with Facebook Companies envisaged in the policy. Therefore, it cannot be said that the CCI is bound by its own findings in Vinod Kumar Gupta (supra) when the issue at hand as well as the circumstances are different.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">47. Apart from the aforesaid two issues, it is also the contention of the Appellant in LPA 164/2021 that it is a separate and distinct legal entity from WhatsApp, and therefore, it should not be subjected to an intensive and intrusive investigation by the DG in pursuance of the findings of the CCI under Section 26(1) of the Act. In this regard, the Court finds merit in the submission of the learned ASGs that one of the key issues with the 2021 Policy is its propensity to share the data of its users with Facebook Inc., the parent company of WhatsApp. Solely for the reason that the policies itself do not emanate out of Facebook Inc., the Appellant cannot hide behind the fact that it is the direct and immediate beneficiary of the data sharing mechanism envisaged by the policies. These circumstances necessitate the presence of the Appellant in LPA 164/2021 as a proper party in the investigation pertaining to the 2021 Policy and the alleged anti-competitive practices they trigger.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">48. With regard to the submissions on behalf of Facebook India Online Services Pvt. Ltd., this Court does not find any merit on the aspect of impleading the said party on account of the fact that the decision of the DG to issue notice to the Applicant, designating it as an “Opposite Party”, stems from the information it has secured from Internet Freedom Foundation in Case No. 30 of 2021 regarding its relevance in the investigation. The decision taken by the DG lies in the fact that a thorough investigation can only be conducted if the Applicant cooperates in the same.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">49. Furthermore, it is not contemplated in law that a party should be impleaded at the stage of an appeal when it has not been a party to the matter at the stage when the decision from which the appeal arises has been given, and the remedy of the Applicant only lies by way of a writ against the Order by which it is aggrieved. The contention of Mr. Tripathi that the Applicant has chosen to implead itself in the appeal filed by Facebook cannot be accepted by this Court. The Applicant will have to first make out a prima facie case before the learned Single Judge that there is no allegation against it in the Order of the CCI. The case of the Applicant would involve independent application of mind by the learned Single Judge. The instant appeals are primarily on the issue as to whether the CCI ought to wait till final adjudication of the issues which are pending before the Apex Court. The Impleadment Application cannot be entertained in the instant appeals which have been filed by Facebook Inc. and WhatsApp. This Court, therefore, does not deem it fit to scuttle the investigation at a nascent stage and defers to the wisdom of the DG and the CCI, and rejects the Impleadment Application. However, the Applicant is granted the liberty to take all such steps as required by it, in accordance with law, to impugn the CCI Order. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">50. In light of the aforesaid observations, this Court is of the opinion that the impugned Judgement dated 22.04.2021, passed by the learned Single Judge in W.P.(C) 4378/2021 & W.P.(C) 4407/2021, is well reasoned, and that the appeals filed by the Appellants are devoid of merit and substance that would warrant the interference of this Court.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">51. Accordingly, the instant appeals are dismissed, along with pending application(s), if any. </span></p>', '22490f6dc99a7f5b6a2fe4d0d88136db.png', '4095017e88d4b29d5cac992f24ebaf2c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-06', 0, '', '', '2022-09-07 00:37:11', '2022-09-07 00:48:35'),
(2162, 'Xg9uIUUbrfKkpwo0xjfCuLH66', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘’Fair trial includes fair investigation which is part of Article 20 and 21 of the Constitution of India.’’  Taking note of utter failure of the Police to deal with powerful accused, Karnataka High Court refers murder case to CBI for further investigation', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Manjula M and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 7784 of 2022 decided on 3 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows: The 1st petitioner is the wife of one K.Raghunath and the 2nd petitioner is the son of the 1st petitioner. K.Raghunath during his life time is claimed to have owned many immovable properties in different places in the District of Bangalore – a few of them in Devanahalli Taluk, K.R.Puram Taluk and in several other places. It is averred that K.Raghunath was closely related to one D.K.Adikeshavalu, a Member of Parliament who was active in politics in his life time. D.K.Adikeshavalu died on 24-04-2013 and then began the scouting of the properties held by D.K. Adikeshavalu. The children of D.K.Adikeshavalu, in particular respondent No.10 and other close associates of 10th respondent started pressurizing K.Raghunath for transfer of some of the immovable properties owned by him alleging that the source of income of the properties in his name is of their father. It is the case of  the  petitioners that  K.Raghunath  resisted  their  pressure  and asserted that he is the absolute owner of the properties acquired from his own source of income coming from real estate and had thus become owner of those properties. The difference between K.Raghunath and the children of the deceased D.K.Adikeshavalu became irreconcilable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. In the year 2016, it transpires that an income tax raid took place in the premises of late D.K.Adikeshavalu and the raid and the seizure was attributed to K.Raghunath. It is contended that K.Raghunath executed a Will on 28-01-2016 and got it registered and as per the Will the 1st petitioner was to succeed to all the properties owned by K.Raghunath. K.Raghunath had not disclosed the fact of execution of the Will to any of the private respondents herein during his life time. It appears that when K.Raghunath wanted to sell one of the properties and was about to execute a sale deed on 4-05-2019, the private respondents herein got to know of the same and the 10th respondent and his sister, the 14th respondent herein summoned K.Raghunath to the place of the 14th respondent. The 14th respondent always used to be in the hospital “Vydehi Institute of Medical Sciences and Research Centre” located in Whitefield. On being summoned K.Raghunath leaves the house on the afternoon of 02-05-2019 informing the petitioners herein that he was going to meet 10th and 14th respondents.  For about two days there was no news about K.Raghunath. On 04-05-2019 two days after he had left the house, at 7.00 a.m., it is contended, that a call comes from K.Raghunath that his life was not safe. Since K.Raghunath had expressed threat to his life, the 1st petitioner sends the 2nd petitioner/son to the house of the 10th respondent to verify about K.Raghunath. The 2nd petitioner goes to the guest house of respondent No.10 situated in Whitefield and enters the guest house and sees his father hanging to a ceiling fan. This was at about 8.30 a.m. On this incident, the entire episode of crime unleashed. A statement of the 2nd petitioner/son, was recorded on the very day, who at that point of time did not suspect anyone and thought that it was an act of suicide by his father and gave a statement accordingly to the Police that he was not suspecting anyone. Based upon the said statement of the son, an unnatural death report was generated in U.D.R.No.28 of 2019 by the H.A.L.Police and the case was closed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. In furtherance whereof, the following issues arise for my consideration: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(1)<span style=\"white-space:pre\">	</span>Whether the learned Magistrate was justified in directing further investigation to a different Investigating Officer other than the one who had investigated the crime? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(2)<span style=\"white-space:pre\">	</span>Whether the accused will have to be heard in a case where a direction is issued for further investigation, either by the concerned Court under Section 173(8) of the Cr.P.C. or by this Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C.? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(3)<span style=\"white-space:pre\">	</span>Whether the prayer of the petitioners to entrust the investigation to the hands of the CBI merits any acceptance?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Issue No.1: (1) Whether the learned Magistrate was justified in directing further investigation to a different Investigating Officer other than the one who had investigated the crime?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>14. In the light of the judgment rendered by the Apex Court in the aforesaid case, the part of the order where the learned Magistrate directs further investigation to be conducted by the HAL Police Station is rendered without jurisdiction and requires to be obliterated, as power of superior Court cannot be exercised by the learned Magistrate. Therefore, issue No.1 is answered in favour of the petitioners, only to the extent of it directing further investigation to be carried out by a different agency</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>Issue No.2: (2) Whether the accused will have to be heard in a case where a direction is issued for further investigation, either by the concerned Court under Section 173(8) of the Cr.P.C. or by this Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C.?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>15. The Complainant was before this Court. Based upon the order in Writ Petition No.4333 of 2021, SIT was constituted. SIT conducted investigation and has filed a ‘B’ report in the matter. The learned Magistrate has not accepted or rejected the ‘B’ report, but has directed further investigation under Section 173(8) of the Cr.P.C. When the learned Magistrate directs further investigation under Section 173(8) of the Cr.P.C., or this Court would direct further investigation in exercise of its power under Section 482 of the Cr.P.C., hearing of the accused is not contemplated in law.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>In the light of the judgment of the Apex Court (supra), hearing of the accused, particularly at the stage where the Court would direct further investigation is not a procedure contemplated in law, as the case would be still at a pre-process stage.  Therefore, the contention of the learned counsel appearing for the 10th respondent that he is to be heard in the matter prior to a direction for further investigation sans substance and is, therefore rejected. The issue that has arisen is answered holding that the accused has no right to contend that he should be heard in a matter at a pre-process stage.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>Issue No.3: (3) Whether the prayer of the petitioners to entrust the investigation to the hands of the CBI merits any acceptance?<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>17. These are the judgments where in the facts and circumstances as obtaining in those cases before the Apex Court directs investigation to be conducted by the CBI, be it, further, de novo or re. The judgments quoted hereinabove also caution the Court exercising jurisdiction under Section 482 of the Cr.P.C. that direction of entrustment of investigation to the CBI should be made sparingly and only in extraordinary circumstances. The Apex Court found those extraordinary circumstances existing in those cases before it and, therefore, directed the CBI to take over the investigation, as the investigation conducted by the Investigating Agencies were so shoddy that the Apex Court had to do so.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>19. In the case at hand, the investigation at the outset, was sought to be conducted by the jurisdictional police. For over a year nothing had happened. It is then the petitioner had knocked the doors of this Court alleging that the accused who are in a position to influence the jurisdictional police are not permitting investigation to be held into the crime. It is then, this Court directed constitution of a Special Investigating Team. The report submitted by the team is not found favour at the hands of the learned Magistrate. Therefore, what becomes necessary is, consideration of the prayer of the petitioner for reference of the matter to the CBI bearing in mind, the observations made by the Apex Court in the afore-quoted judgments and on their touchstone, considering the facts obtaining in the case at hand or the allegations of lacunae in the investigation.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21. In the light of the aforesaid facts and the lacunae, glaring enough they are, and the judgments rendered by the Apex Court (supra), it becomes a case where the issue will have to be thrashed out by conduct of a further investigation, not from the hands of the very Special Investigation Team or direction to constitute a second Special Investigation Team, but to be conducted by an independent agency – The Central Bureau of Investigation, as constitution of another Special Investigating Team would be of no avail, since there is already a report of the Special Investigating Team, which is not found favour even with the learned Magistrate, on the presence of the aforesaid lacunae in investigation<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22. This Court is cautious of the fact that extraordinary power to hand over investigation to the CBI is to be exercised sparingly, cautiously and in exceptional circumstances where it becomes necessary to provide credibility and instill confidence in investigation or whether such an order would become necessary for doing complete justice. Therefore, in the contextual facts and the attendant circumstances as analyzed hereinabove, further investigation to unravel the truth is necessary, as the prime concern and endeavour of a Court of law is to secure justice, on the basis of true facts, which ought to be unearthed through a competent investigating agency. One chance was rendered to the Investigating Team of the State which has filed a ‘B’ report even on a FIR being filed for offence punishable under Section 302 of the IPC – murder. It is, therefore, the learned Magistrate has directed further investigation into the matter. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23. It is not for the victim to claim or choose the investigating agency he wants to get it investigated and that is not the tenor of the prayer in the case at hand. The prayer is that on two occasions – one by the Police and one by the Special Investigating Team, there has been shoddy investigation which did sound acceptance in the light of the aforesaid circumstances and the contextual facts, as narrated hereinabove. Merely because a party has levelled some allegations against the local Police of conduct of shoddy investigation would not by itself constitute a sufficient ground for transfer of investigation to the CBI.  But, the case at hand is not the one that brings about such circumstance. Elaborate lacunae are pointed out by the learned senior counsel with regard to the investigation conducted by the Special Investigating Team. There cannot be Special Investigating Team-1 which has already conducted an investigation to again to move to another Special Investigating Team to make it Special Investigating Team-2 as they form part of the local police. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24. It is trite law that Article 21 embraces both the life and liberty of the accused as well as the interest of the victim, his or her near and dear ones, as well as of the community at large. A life is lost in the case at hand, it is therefore the victim who have lost their breadwinner are fighting for justice and conduct of a fair trial. It is by now a well settled principle of law, judicially recognized, that fair trial includes,  fair investigation and these form facets, inter alia of Article 20 and 21 of the Constitution of India. If on these contours the facts in a given case demands transfer of investigation, to the hands of an impartial agency, it should be considered, in furtherance of a call to render complete justice and protection of human rights, such reference would become imperative particularly in the wake of ever overwhelming cause of justice. The contention of the petitioner is that the status of the accused being so powerful, are in a position to wield abundant influence upon any investigating team of the State, this submission would further wane out the Courts faith in directing further investigation by SIT-1 or by constitution of a SIT-2. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25. Being guided by the parameters laid down by the Apex Court in the afore-quoted judgments to transfer the case to the CBI, I deem it necessary and expedient to direct further investigation by handing over such investigation to the hands of the Central Bureau of Investigation-the 9th respondent herein.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Writ Petition is allowed in part.</b><br></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6aed7579725ccf69cece1156173184aa.JPG', '397db22176efde4d338c0c57a5163371.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-07', 1, '', '', '2022-09-07 16:49:24', '2022-09-08 00:46:24');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2163, 'ViCJ7o1P0tR83l53NtZPv0Hyr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Damages payable by tenant to landlord based on the rate at which landlord could have let out the premises cannot be equated to the profit the tenant might have received with ordinary diligence. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Indian Oil Corporation Ltd Vs Sudera Realty Private Limited<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 6199 of 2022 decided on 6 September 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice K.M. Joseph and Pamidighantam Sri Narasimha.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">The appellant is the defendant in the suit. By the impugned judgment, the division bench of the High </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court has partly allowed the appeal filed by the appellant and modified the decree granted by the learned Single Judge in a suit filed by the respondent seeking mesne profits.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2. The respondent-plaintiff instituted the suit on the following basis. The respondent demised the centrally air-conditioned 2 nd, 3 rd and 4th floors of premise no. 1, Shakespeare Sarani, Kolkata and a nonair-conditioned guest house on the 9th floor. The lease was to subsist for a term of 21 years commencing from the date when the said floors were handed over to the appellant lessee. The respondent further claimed that there is a supplementary agreement which is also duly registered on 12.09.1969, which had brought about certain modifications in the original lease dated 21.11.1968. It was further the case set up by the respondent that the 2 nd and 3 rd floors came to handed over on 12.09.1969 and the possession of the 4th floor was made over to the appellant on 18.12.1969. It was alleged that there was failure on the part of the appellant to join and cooperate with the respondent</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in the matter of finalisation, execution, and registration of an appropriate document of lease in regard to the 2 nd, 3rd and 4 th floors. There is reference to an earlier suit which was filed in the year 1978, and which was not followed to its logical culmination but ended in a compromise. More of it later. Suffice it to notice at this stage that the proximate cause for the litigation was the failure of the appellant to hand over vacant possession of the 2 nd, 3rd and 4 th floors, upon the expiry of the lease. Possession was handed over to the respondent only on 31.05.1994. Resultantly, the respondent alleged that the appellant was in wrongful possession of the 2 nd, 3 rd and 4 th floors after the expiry of the lease on 11.09.1990 i.e., for the 2 nd and 3 rd floors and for the 4 th floor on 17th December, 1990 or alternatively on the expiry of the 3 rd or 4th of November, 1991 till 31.05.1994. Even in terms of the computation of the period of 21 years by the appellant, this illegal possession continued till 31.05.1994. The respondent claimed mesne profits in respect of 57105 sq. feet at the rate of Rs.31 per sq. feet per month.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">3. In the written statement filed by the appellant the case inter alia set up was that the period of lease was to be computed from the date of delivery of possession. The document dated 21st November, 1968 constituted the actual demise of the property. By notice dated 7th December, 1977, the respondent had determined the lease and there was a suit filed by the respondent which was dismissed as not pressed and appellant had constructed a new office building. It took some time to vacate. There was a clause for premature termination of the lease at the option of the appellant. Appellant was entitled to the protection of the West Bengal Tenancy Act, 1956 (hereinafter referred to as the ‘Tenancy Act’). The case of wrongful possession was denied. In the alternative, it was contended that respondent accepted monthly rent after the determination of the tenancy by notice dated 7th December, 1977. The tenancy is also protected therefore under the Tenancy Act.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">The following points arise:</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Point No.01: - Whether the documents styled as agreement dated 21.11.1968 and the supplementary agreement for lease dated 12th September, 1969 constituted a lease?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Point No.02: - Whether the possession of 2nd and 3rd floors were handed over on 17.09.1969 and 4th floor stood handed over on 04.11.1970?<br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">14. Thus, we find that there was indeed a written agreement of lease dated 21.11.1968. The term of the lease was 21 years which was to begin from the date on which demised premises was handed over to the lessee. The rent for the demised premises was also fixed.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">15. The next question which would arise is, as to when the possession was handed over? As we have noticed, the dispute which is raised pertains to the 2 nd, 3rd and 4th floors of the building in question. As already noticed by us, the Division Bench has found in modification of the judgment of the learned Single Judge that as there are no documents to show the exact date, the appellant was put in possession of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the 2nd and 3rd floors and fixed 17.09.1969 as the starting point.</span><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">19. In other words, under the said agreement, in regard to the 2nd floor, the respondent-Lessor undertook to hand over possession to the Lessee upon the passage of six months from the date of the agreement. It was also obliged to make space for parking. Likewise, in Clause 18, the possession was to be handed over immediately upon the expiration of eight and half months.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">20. Clause 19 provided for making available the 4 th floor immediately after expiration of eleven months from the date of agreement dated 17.11.1968. Clause 21 provided for complying with the schedule for handing over possession and resultantly, making the respondent liable for penalty or damage settled at 10% of the monthly rent inter alia. Clause 22 makes it clear that the respondent was to complete the construction of the entire building (multi storey building) within 3 years from 17.11.1968<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">21. In the Supplemental Agreement, there were certain changes by way of additional rights being created in favour of the appellant. Clause 8 of the original agreement stood modified, in that, in place of the liability of the lessee for Rs.1,68,300/-, as already noticed, it is provided that a sum of Rs.1,64,462.40 was to be paid in three equal instalments. The first of such instalment was to be paid when the possession of the 2nd floor was given. Second instalment was to be paid when possession of the 3rd floor was given. The third instalment was to be paid when possession of the 4th floor was given. Rs.9900/- was payable in connection with guest house. It is in light of this clause that the Exhibit 2 letter dated 16.9.1969 must be appreciated. In other words, the said letter would indicate that in terms of the agreement, as 2 nd and 3rd floors stood handed over, the respondent was insisting for payment of the security deposit, the appellant was obliged under the agreement (clause 8) as modified in the supplementary agreement to pay to the respondent. No doubt, the case of the appellant would appear to be that the possession was not handed <span style=\"font-size: 12pt;\">over in total compliance of the agreement and the attendant facilities were not still made available.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\">22. We would think that the findings rendered by the High Court is a plausible view and we would, therefore, take the view that possession of 2nd and 3rd floors was handed over on 17.09.1969 and 4th floor stood handed over on 04.11.1970. </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Point No. 3: - Whether the appellant is a monthly tenant from November, 1969?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">23. The next question which would arise is whether the appellant should be treated as a monthly tenant for the reason that a formal registered deed was contemplated. The agreement dated 17.11.1968 as also the construction of the premises was not completed </span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">25. The agreement dated 12.9.1969 is admittedly a registered document. We do not find any force in law or on facts to permit the appellant to contend that the appellant be treated as a monthly tenant since 1968. We have noticed the stand taken by the appellant that neither the appellant nor the respondent insisted upon execution of a formal deed of lease. The requisite stamp was paid. Thus, the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">lease for 21 years came into being. The period of the lease is to be calculated from the date when the possession was handed over. We have although found that possession, in fact, was handed over on the dates when it is handed over as found in the impugned judgment. The cases of the appellant is also in the teeth of the correspondence dated 21.08.1990 and 03.11.1990, inter alia.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Point No. 04: - Whether there was a prior determination of the lease of 21 years by the respondent, if so, whether the appellant is entitled to protection of the Tenancy Act?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">26. The next contention raised by the appellant is that in the development in the year 1977, the respondent put an end to the lease dated 17.11.1968 and transformed the appellant into a monthly tenant and what is more relevant, it entitled it to the benefits under the West Bengal Tenancy Act. This argument is based on the notice dated 12.12.1977 issued by the respondent by which according to the appellant, the lease was terminated. According to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appellant, the matter did not stop with the mere issuance of the notice. Parties went to court. The respondent filed O.S. No. 20/1978. The appellant also filed a Suit.</span><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">57. In this case it is no doubt true that there is pre-determination clause which gave an option to the appellant to determine the lease after a period of 8 years. From the evidence and the stand taken by the appellant as emerging from the documents, it is clear that the appellant continued for the full length of 21 years in terms of the lease. Its possession was never ruffled. The appellant also filed a suit. During the entire period after the execution of the deed in 1968 and the supplementary lease deed in 1969, it would appear that till the period of 21 years ran out, appellant never took up the case based on its right under the West Bengal <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Premises Tenancy Act in view of the option it had to determine the lease under Clause 9. The presence of the clause in question is not to be confused with the issue relating to the effect of the notice dated 07.12.1977 purported to have been sent to the respondent which we have separately dealt with. Therefore, in terms of Pabitra Kumar Roy (supra), the appellant may not succeed on the strength of the option it claimed under the agreement to lease.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">MESNE PROFITS: WAS THE POSSESSION OF THE APPELLANT WRONGFUL ON THE EXPIRY OF THE LEASE?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">60. A tenant continuing in possession after the expiry of the lease may be treated as a tenant at sufferance, which status is a shade higher than that of a mere trespasser, as in the case of a tenant <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">continuing after the expiry of the lease, his original entry was lawful. But a tenant at sufferance is not a tenant by holding over. While a tenant at sufferance cannot be forcibly dispossessed, that does not detract from the possession of the erstwhile tenant turning unlawful on the expiry of the lease. Thus, the appellant while continuing in possession after the expiry of the lease became liable to pay mesne profits.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">LIMITATION: WHETHER THE SUIT IS BARRED IN RELATION TO MESNE PROFITS BEYOND 3 YEARS OF THE SUIT?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">83. Once the lease comes to an end, the erstwhile tenant becomes a tenant at sufferance. He cannot be dispossessed, except in accordance with law. But he cannot, in law, have any right or interest anymore. Even though, under Section 108 of the Transfer of Property Act, if there is no contract to the contrary, the tenant may have the right, under Section 108(j), to transfer his interest absolutely or even by sub-lease or mortgage, when the lease expires by afflux of time, his interest as lessee would come to an end.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Thus, on the expiry of a lease, the erstwhile tenant, who remains a tenant at sufferance, would have no right to transfer.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">84. In this regard, we would have to hold that there is a new lease by holding over. The acceptance of the amount after the expiration of the lease by the respondent was without prejudice to its case. We do not think that the appellants can persuade us to hold that there is a lease by holding over.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">85. Therefore, it may not be appropriate to allow the appellant to raise the contention of limitation or to allow him to succeed on the same, based on the case falling under Article 51. This is, no doubt, despite noticing the averment in the plaint which appears to have been made with reference to Section 2(12) of the CPC. We would have to, however, bear in mind the principle laid down in Atmaram (supra) and the principles we have already considered. We are of the view that landlord by the suit seeks to realise, what in law is described as damages for unauthorised occupation by the tenant after the expiry of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">lease. It is not to be conflated to the profits received within the meaning of Article 51 of the Limitation Act, as it involves finding out the rate at which the landlord could have let out the premises. It would be the residuary Article, namely, Article 113, which should apply.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">86. The result would be that, in the factual context, it may not be possible to hold that the suit filed by the respondent, should still be found to fall under Article 51 of the Limitation Act and barred as regards part of the cause of action.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">87. The upshot of the above discussion is that, we find no merit in the appeals. The appeals shall stand dismissed. The parties to bear the respective costs.</span></span></p>', 'ffd55958a0a039d754648a11217cefa2.jpg', 'aaeb17a6306389969f3f270b44b36d31.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-08', 1, '', '', '2022-09-07 17:18:28', '2022-09-08 06:38:36'),
(2164, 'Xsx9Id8BcTL3QwZqSA9ZGvVNt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A resolution plan which does not meet the requirements of Section 30 (2) of IBC is invalid and not binding on the Central Government, State Government, statutory or other authority, creditor, financial creditor to whom a debt is owed. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>State Tax Officer Vs Rainbow Papers Limited<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1661 of 2020 decided on 4 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Indira Banerjee and Justice A.S. Bopanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>These appeals under Section 62 of the Insolvency and\r\nBankruptcy Code, 2016, hereinafter referred to as ‘IBC’, is against a\r\njudgment and order dated 19th December, 2019, passed by the\r\nNational Company Law Appellate Tribunal (NCLAT) dismissing\r\nCompany Appeal (AT)(Insolvency) No. 404 of 2019 filed by the\r\nAppellant, against an order dated 27th February 2019 of the\r\nAdjudicating Authority, rejecting the application being I.A <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">No.224/271/272/337 of 2018 and P-01 of 2019 in C.P. No. (IB)\r\n88/9/NCLT/AHM/2017 filed by the appellants and holding that the\r\nGovernment cannot claim first charge over the property of the\r\nCorporate Debtor, as Section 48 of the Gujarat Value Added Tax,\r\n2003, hereinafter referred to as the “GVAT Act”, which provides for\r\nfirst charge on the property of a dealer in respect of any amount\r\npayable by the dealer on account of tax, interest, penalty etc. under\r\nthe said GVAT Act, cannot prevail over Section 53 of the IBC.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. In this case, claims were invited well before the 5th October, 2017\r\nwhich was the last date for submission of claims. Under the\r\nunamended provisions of Regulation 12(1), the Appellant was not\r\nrequired to file any claim. Read with Regulation 10, the appellant would\r\nonly be required to substantiate the claim by production of such\r\nmaterials as might be called for. The time stipulations are not\r\nmandatory as is obvious from Sub-Regulation (2) of Regulation 14 which\r\nenables the Interim Resolution Professional or the Resolution\r\nProfessional, as the case may be, to revise the amounts of claims\r\nadmitted, including the estimates of claims made under Sub-Regulation\r\n(1) of the said Regulation as soon as might be practicable, when he\r\ncame across additional information warranting such revision.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. In this case, at the cost of repetition, it may be noted that there\r\nwas no obligation on the part of the State to lodge a claim in respect of\r\ndues which are statutory dues for which recovery proceedings have also\r\nbeen initiated. The appellants were never called upon to produce\r\nmaterials in connection with the claim raised by the Appellants towards\r\nstatutory dues. The Adjudicating Authority as well as the Appellate\r\nAuthority/NCLAT misconstrued the Regulations.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>43. The learned Solicitor General rightly argued that when a\r\ngrievance was made before the Adjudicating Authority with regard to a\r\nResolution Plan, the Adjudicating Authority was required to examine if\r\nthe Resolution Plan met the requirements of Section 30(2) of the IBC.\r\nThe word “satisfied” used in Section 31(1) contemplates a duty on the\r\nAdjudicating Authority to examine the Resolution Plan – The Resolution\r\nPlan cannot be approved by way of an empty formality.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>45. As rightly argued by the learned Solicitor General, there can be no\r\nquestion of acceptance of a Resolution Plan that is not in conformity <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">with the statutory provisions of Section 31(2) of the IBC. Section 30(2)\r\n(b) of the IBC, casts an obligation on the Resolution Professional to\r\nexamine each resolution plan received by him and to confirm that such\r\nresolution plan provides for the payment of dues of operational\r\ncreditors, as specified by the Board, which shall not be less than the\r\namount to be paid to such creditors, in the event of liquidation of the\r\nCorporate Debtor under Section 53, or the amount that would have\r\nbeen paid to such operational creditors, if the amount to be distributed\r\nunder the resolution plan had been distributed in accordance with the\r\norder of priority in Sub-section 2 of Section 53, whichever was higher,\r\nand provided for the payment of debts of financial creditors, who did\r\nnot vote in favour of the resolution plan, in such manner as might be\r\nspecified by the Board.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>46. Under Section 31 of the IBC, a resolution plan as approved by the\r\nCommittee of Creditors under Sub-Section (4) of Section 30 might be\r\napproved by the Adjudicating Authority only if the Adjudicating\r\nAuthority is satisfied that the resolution plan as approved by the\r\nCommittee of Creditors meets the requirements as referred to in Sub-Section (2) of Section 30 of the IBC. The condition precedent for\r\napproval of a resolution plan is that the resolution plan should meet the\r\nrequirements of Sub-Section (2) of Section 30 of the IBC. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>48. A resolution plan which does not meet the requirements of Sub-Section (2) of Section 30 of the IBC, would be invalid and not binding on\r\nthe Central Government, any State Government, any statutory or other\r\nauthority, any financial creditor, or other creditor to whom a debt in\r\nrespect of dues arising under any law for the time being in force\r\nis owed. Such a resolution plan would not bind the State when there\r\nare outstanding statutory dues of a Corporate Debtor.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>51. If the established facts and circumstances require discretion to be\r\nexercised in a particular way, discretion has to be exercised in that way.\r\nIf a Resolution Plan is ex facie not in conformity with law and/or the\r\nprovisions of IBC and/or the Rules and Regulations framed thereunder,\r\nthe Resolution would have to be rejected. It is also a well settled\r\nprinciple of interpretation that the expression “may”, if circumstances\r\nso demand can be construed as “Shall”.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n52. If the Resolution Plan ignores the statutory demands payable to\r\nany State Government or a legal authority, altogether, the Adjudicating\r\nAuthority is bound to reject the Resolution Plan.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>53. In other words, if a company is unable to pay its debts, which\r\nshould include its statutory dues to the Government and/or other\r\nauthorities and there is no plan which contemplates dissipation of those\r\ndebts in a phased manner, uniform proportional reduction, the company\r\nwould necessarily have to be liquidated and its assets sold and\r\ndistributed in the manner stipulated in Section 53 of the IBC.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>54. In our considered view, the Committee of Creditors, which might\r\ninclude financial institutions and other financial creditors, cannot secure\r\ntheir own dues at the cost of statutory dues owed to any Government or\r\nGovernmental Authority or for that matter, any other dues. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>57. As observed above, the State is a secured creditor under the GVAT\r\nAct. Section 3(30) of the IBC defines secured creditor to mean a\r\ncreditor in favour of whom security interest is credited. Such security\r\ninterest could be created by operation of law. The definition of secured\r\ncreditor in the IBC does not exclude any Government or Governmental\r\nAuthority.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>58. We are constrained to hold that the Appellate Authority (NCLAT)\r\nand the Adjudicating Authority erred in law in rejecting the\r\napplication/appeal of the appellant. As observed above, delay in filing a\r\nclaim cannot be the sole ground for rejecting the claim.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n59. The appeals are allowed. The impugned orders are set aside. The\r\nResolution plan approved by the CoC is also set aside. The Resolution\r\nProfessional may consider a fresh Resolution Plan in the light of the\r\nobservations made above. However, this judgment and order will not,\r\nprevent the Resolution Applicant from submitting a plan in the light of\r\nthe observations made above, making provisions for the dues of the\r\nstatutory creditors like the appellant.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n60. There shall be no order as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8f606933026ef25f0b5d3e851d674d37.jpg', 'de552ea53806a2d06e8df7a3cd509322.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-08', 1, '', '', '2022-09-07 20:13:29', '2022-09-08 10:23:51'),
(2165, 'WaX16qLZcp7ZZyh7eFPqYGnDa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '  Court can allow amendment of pleadings even after commencement of trial if it is satisfied that inspite of due diligence the party “could not have raised” the issue before commencement of the trial. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Hamsa Vs Papamma Alias Ammani and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 16397 of 2018 decided on 18 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.S. Hemalekha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">The present writ petition is preferred by the\r\nplaintiff assailing the Order dated 26.03.2018 passed\r\non I.A. No.VIII in O.S. No.69/2015 on the file of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Principle Senior Civil Judge and JMFC, Belthangady,\r\nDakshina Kannada (hereinafter referred to as ‘the\r\nTrial Court’ for short), whereby the application filed by\r\nthe plaintiff under Order VI Rule 17 of CPC seeking\r\npermission to amend the plaint has been dismissed by\r\nthe Trial Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The suit in OS No.69/2015 is filed for\r\npartition and separate possession and for other\r\nconsequential reliefs against the defendants in respect\r\nof suit schedule properties. Defendant Nos.2 and 3\r\nappeared and filed their written statement denying the\r\nplaint averments. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. When the matter was set in for further\r\nevidence of plaintiff, plaintiff filed I.A. No.VIII under <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Order VI Rule 17 of CPC seeking to amend the plaint\r\nby adding facts at paragraph Nos.8 (a) and (b) after\r\nparagraph No.8 and prayer (a) seeking equal share in\r\nBank guarantee and 12 FDR amount of\r\nRs.18,00,000/- and allot 1/6th share with interest at\r\n15% p.a. from 20.08.2011 till realization, stating that\r\nearlier suit OS No.32/2013 filed by plaintiff seeking\r\nshare in respect of FDR amount of Rs.18,00,000/- was\r\ndismissed as not maintainable with liberty to include\r\nthe schedule property of OS No.32/2013 in the\r\npresent OS No.69/2015.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. It is relevant to note that the Trial Court by\r\norder dated 26.03.2018 has rejected the applicationI.A. No.VIII on the ground that the present application\r\ndoes not survive for consideration either in law or on\r\nfacts, without considering the judgment and decree\r\ndated 14.12.2017 passed in OS No.32/2013, whereby,\r\nthe Court has dismissed the suit of the plaintiff with a\r\nliberty to include the properties by way of amendment\r\nin the present suit.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><font face=\"Calibri, sans-serif\">12. The bare perusal of this provision, it is translucently clear that order VI Rule 17 of CPC consists of two parts.</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> (1)<span style=\"white-space: pre;\">	</span>That the Court may at any stage of proceeding allow either party to amend his pleadings. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(2)<span style=\"white-space: pre;\">	</span>That such amendment shall be made for the purpose of determining the real controversies between the parties. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13. Therefore, in view of the provisions under Order VI Rule 17 of CPC, it cannot be doubted that wide power and unfettered discretion has been conferred on the Court to allow amendment of the pleadings to a party in such manner and on such terms as it appears to the Court just and proper. By way of amendment to CPC, Act 2002 to Order VI Rule 17, which restricts the Court from permitting an amendment to be allowed in pleading either to the parties, if at the time of filing application for amendment, the trial has already commenced. However, Court can allow amendment, if it is satisfied that in spite of due diligence, the party could have raised the matter before the commencement of trial. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14. In the present case, though the application is filed after commencement of evidence, the amendment sought is in view of the liberty granted in OS No.32/2013 vide order dated 14.12.2017 and I.A. No.VIII for amendment was filed on 09.02.2018 and in view of the proviso to Order VI Rule 17, the amendment sought for could not be availed at the earliest as the liberty was granted only on 14.12.2017. Thus the reasoning of the trial Court that application for amendment after commencement of evidence cannot be considered and thus rejecting the application is not sustainable, as inspite of due diligence the defendant could not have raised the matter before the commencement of trial. Moreover the application does not change the nature of the pleadings or introduce new cause of action, it is only addition of certain properties in the plaint schedule properties nor any serious prejudice will be caused to the defendants if proposed amendment is allowed and it is always open for the defendants to file additional written statement. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15. In the light of the reasons stated supra, this Court is of the considered view that I.A. No.VIII seeking amendment of plaint needs to be allowed in the facts and circumstances of the case and rejection of I.A. No.VIII under Order VI Rule 17 of CPC is without any justifiable reasons.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>ORDER:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>i.<span style=\"white-space: pre;\">	</span>The writ petition is allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b30c9a479e0ec10c280335c066bd85f9.JPG', 'cd4b59bea031d66139726ec975e5be37.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-08', 1, '', '', '2022-09-08 00:54:35', '2022-09-08 12:54:18');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2166, '40EvHLN4hmDCBj2kFpqG1YAFp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'An accused who secures anticipatory bail with condition to co-operate in the investigation cannot normally seek quashment of the criminal proceedings. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vijaykumar Vs The State and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 3163 of 2021 decided on 1 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In W.P.No.3217/2021, petitioner seeks a direction to the jurisdictional police to undertake and accomplish investigation in respect of his F.I.R. No.32/2020 dated 03.03.2020. Learned counsel for the petitioner vehemently argues that an F.I.R. of the kind cannot be kept in a limbo indefinitely, especially in the light of Apex Court decision in LALITHA KUMARI vs. STATE OF U.P. (2014) 2 SCC 1. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. Crl.P.No.3163/2021 and Crl.P.No.4322/2021 both filed u/s.482 of Cr.P.C. 1973, seek quashment of the criminal proceedings on the ground that there is no prima facie case to undertake investigation and that criminal law cannot be set in motion casually as held by the Apex Court in PEPSI FOODS LTD. Vs. SPECIAL JUDICIAL MAGISTRATE,  1998 SC 120.  So contending learned counsel appearing for the petitioners seeks quashment of the said proceedings. This is opposed by the petitioner in the writ petition who has lodged the F.I.R., contending that criminal proceedings should not ordinarily be interfered with in writ jurisdiction</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4. I have heard the learned counsel for the parties and I have perused the petition papers. I have adverted to the ruling cited at the Bar.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a) Quashment of criminal proceedings is a serious matter vide PEPSI FOODS supra. Similarly setting the criminal law in motion is also a serious matter vide CH. BHAJAN LAL supra. Court has to strike a golden balance between these two competing principles of criminal jurisprudence. A bare perusal of the F.I.R. in question brings about cognizable offences punishable under several sections of IPC. What one has to look at is the prima facie offence arising from the contents of the F.I.R., taken with face value.  This court cannot weigh the evidentiary material justifying investigation, which essentially belongs to the domain of Investigating Officer vide LALITHA KUMARI supra.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (b) The learned HCGP is more than justified in contending that an F.I.R. is a skeletal instrument that sets the criminal law in motion and that this court need not bother about the bone, blood & flesh of such an instrument, the same having been left to the wisdom of Investigating Agency. Therefore, this Court exercising a limited jurisdiction u/s.482 of Cr.P.C. cannot undertake a roving enquiry in the matter.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (c) Learned counsel appearing for the petitioner-complainant and learned HCGP appearing for the respondent-police are also justified in notifying to the court that petitioners have secured anticipatory bail orders at the hands of jurisdictional Sessions Judge wherein a condition is stipulated for the accused to co-operate in the investigation process. That being the position, petitioners cannot readily come before this Court seeking quashment of the criminal proceedings.  It is for the Investigating Agency to look into the matter and take a call as to its investigation worthiness. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(d) The above having been said, this Court hastens to add that the respondent police cannot keep the F.I.R. unacted upon for an indefinite period of time. It hardly needs to be stated that a decision as to investigation worthiness has to be taken at the earliest keeping in view the observations in LALITHA KUMARI supra. Delay, if any, brooked in such a decision making would facilitate vanishing away of the evidentiary material which would affect the administration of criminal justice, as rightly contended by learned counsel appearing for the complainant. In the above circumstances, </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Crl.P.No. 3163/2021 and Crl.P.No.4322/2021 being devoid of merits are liable to be dismissed and accordingly they are.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'cf58e85f99e7d8e76d29e91495002cac.JPG', 'b0c31de3b035bbcdf7a80dae07047fb5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-09', 1, '', '', '2022-09-08 01:12:35', '2022-09-09 12:56:27'),
(2167, 'JIs91dYeor88ThAziI0SGtanc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Once lease comes to an end, lessee’s interest would come to an end. Such lessee who remains a ‘tenant at sufferance’ has no right to transfer the lease. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Indian Oil Corporation Ltd Vs Sudera Realty Private Limited<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 6199 of 2022 decided on 6 September 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice K.M. Joseph and Pamidighantam Sri Narasimha.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">The appellant is the defendant in the suit. By the impugned judgment, the division bench of the High </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court has partly allowed the appeal filed by the appellant and modified the decree granted by the learned Single Judge in a suit filed by the respondent seeking mesne profits.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2. The respondent-plaintiff instituted the suit on the following basis. The respondent demised the centrally air-conditioned 2 nd, 3 rd and 4th floors of premise no. 1, Shakespeare Sarani, Kolkata and a nonair-conditioned guest house on the 9th floor. The lease was to subsist for a term of 21 years commencing from the date when the said floors were handed over to the appellant lessee. The respondent further claimed that there is a supplementary agreement which is also duly registered on 12.09.1969, which had brought about certain modifications in the original lease dated 21.11.1968. It was further the case set up by the respondent that the 2 nd and 3 rd floors came to handed over on 12.09.1969 and the possession of the 4th floor was made over to the appellant on 18.12.1969. It was alleged that there was failure on the part of the appellant to join and cooperate with the respondent</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in the matter of finalisation, execution, and registration of an appropriate document of lease in regard to the 2 nd, 3rd and 4 th floors. There is reference to an earlier suit which was filed in the year 1978, and which was not followed to its logical culmination but ended in a compromise. More of it later. Suffice it to notice at this stage that the proximate cause for the litigation was the failure of the appellant to hand over vacant possession of the 2 nd, 3rd and 4 th floors, upon the expiry of the lease. Possession was handed over to the respondent only on 31.05.1994. Resultantly, the respondent alleged that the appellant was in wrongful possession of the 2 nd, 3 rd and 4 th floors after the expiry of the lease on 11.09.1990 i.e., for the 2 nd and 3 rd floors and for the 4 th floor on 17th December, 1990 or alternatively on the expiry of the 3 rd or 4th of November, 1991 till 31.05.1994. Even in terms of the computation of the period of 21 years by the appellant, this illegal possession continued till 31.05.1994. The respondent claimed mesne profits in respect of 57105 sq. feet at the rate of Rs.31 per sq. feet per month.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">3. In the written statement filed by the appellant the case inter alia set up was that the period of lease was to be computed from the date of delivery of possession. The document dated 21st November, 1968 constituted the actual demise of the property. By notice dated 7th December, 1977, the respondent had determined the lease and there was a suit filed by the respondent which was dismissed as not pressed and appellant had constructed a new office building. It took some time to vacate. There was a clause for premature termination of the lease at the option of the appellant. Appellant was entitled to the protection of the West Bengal Tenancy Act, 1956 (hereinafter referred to as the ‘Tenancy Act’). The case of wrongful possession was denied. In the alternative, it was contended that respondent accepted monthly rent after the determination of the tenancy by notice dated 7th December, 1977. The tenancy is also protected therefore under the Tenancy Act.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">The following points arise:</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Point No.01: - Whether the documents styled as agreement dated 21.11.1968 and the supplementary agreement for lease dated 12th September, 1969 constituted a lease?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Point No.02: - Whether the possession of 2nd and 3rd floors were handed over on 17.09.1969 and 4th floor stood handed over on 04.11.1970?<br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">14. Thus, we find that there was indeed a written agreement of lease dated 21.11.1968. The term of the lease was 21 years which was to begin from the date on which demised premises was handed over to the lessee. The rent for the demised premises was also fixed.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">15. The next question which would arise is, as to when the possession was handed over? As we have noticed, the dispute which is raised pertains to the 2 nd, 3rd and 4th floors of the building in question. As already noticed by us, the Division Bench has found in modification of the judgment of the learned Single Judge that as there are no documents to show the exact date, the appellant was put in possession of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the 2nd and 3rd floors and fixed 17.09.1969 as the starting point.</span><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">19. In other words, under the said agreement, in regard to the 2nd floor, the respondent-Lessor undertook to hand over possession to the Lessee upon the passage of six months from the date of the agreement. It was also obliged to make space for parking. Likewise, in Clause 18, the possession was to be handed over immediately upon the expiration of eight and half months.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">20. Clause 19 provided for making available the 4 th floor immediately after expiration of eleven months from the date of agreement dated 17.11.1968. Clause 21 provided for complying with the schedule for handing over possession and resultantly, making the respondent liable for penalty or damage settled at 10% of the monthly rent inter alia. Clause 22 makes it clear that the respondent was to complete the construction of the entire building (multi storey building) within 3 years from 17.11.1968<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">21. In the Supplemental Agreement, there were certain changes by way of additional rights being created in favour of the appellant. Clause 8 of the original agreement stood modified, in that, in place of the liability of the lessee for Rs.1,68,300/-, as already noticed, it is provided that a sum of Rs.1,64,462.40 was to be paid in three equal instalments. The first of such instalment was to be paid when the possession of the 2nd floor was given. Second instalment was to be paid when possession of the 3rd floor was given. The third instalment was to be paid when possession of the 4th floor was given. Rs.9900/- was payable in connection with guest house. It is in light of this clause that the Exhibit 2 letter dated 16.9.1969 must be appreciated. In other words, the said letter would indicate that in terms of the agreement, as 2 nd and 3rd floors stood handed over, the respondent was insisting for payment of the security deposit, the appellant was obliged under the agreement (clause 8) as modified in the supplementary agreement to pay to the respondent. No doubt, the case of the appellant would appear to be that the possession was not handed <span style=\"font-size: 12pt;\">over in total compliance of the agreement and the attendant facilities were not still made available.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\">22. We would think that the findings rendered by the High Court is a plausible view and we would, therefore, take the view that possession of 2nd and 3rd floors was handed over on 17.09.1969 and 4th floor stood handed over on 04.11.1970. </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Point No. 3: - Whether the appellant is a monthly tenant from November, 1969?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">23. The next question which would arise is whether the appellant should be treated as a monthly tenant for the reason that a formal registered deed was contemplated. The agreement dated 17.11.1968 as also the construction of the premises was not completed </span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">25. The agreement dated 12.9.1969 is admittedly a registered document. We do not find any force in law or on facts to permit the appellant to contend that the appellant be treated as a monthly tenant since 1968. We have noticed the stand taken by the appellant that neither the appellant nor the respondent insisted upon execution of a formal deed of lease. The requisite stamp was paid. Thus, the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">lease for 21 years came into being. The period of the lease is to be calculated from the date when the possession was handed over. We have although found that possession, in fact, was handed over on the dates when it is handed over as found in the impugned judgment. The cases of the appellant is also in the teeth of the correspondence dated 21.08.1990 and 03.11.1990, inter alia.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Point No. 04: - Whether there was a prior determination of the lease of 21 years by the respondent, if so, whether the appellant is entitled to protection of the Tenancy Act?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">26. The next contention raised by the appellant is that in the development in the year 1977, the respondent put an end to the lease dated 17.11.1968 and transformed the appellant into a monthly tenant and what is more relevant, it entitled it to the benefits under the West Bengal Tenancy Act. This argument is based on the notice dated 12.12.1977 issued by the respondent by which according to the appellant, the lease was terminated. According to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appellant, the matter did not stop with the mere issuance of the notice. Parties went to court. The respondent filed O.S. No. 20/1978. The appellant also filed a Suit.</span><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">57. In this case it is no doubt true that there is pre-determination clause which gave an option to the appellant to determine the lease after a period of 8 years. From the evidence and the stand taken by the appellant as emerging from the documents, it is clear that the appellant continued for the full length of 21 years in terms of the lease. Its possession was never ruffled. The appellant also filed a suit. During the entire period after the execution of the deed in 1968 and the supplementary lease deed in 1969, it would appear that till the period of 21 years ran out, appellant never took up the case based on its right under the West Bengal <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Premises Tenancy Act in view of the option it had to determine the lease under Clause 9. The presence of the clause in question is not to be confused with the issue relating to the effect of the notice dated 07.12.1977 purported to have been sent to the respondent which we have separately dealt with. Therefore, in terms of Pabitra Kumar Roy (supra), the appellant may not succeed on the strength of the option it claimed under the agreement to lease.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">MESNE PROFITS: WAS THE POSSESSION OF THE APPELLANT WRONGFUL ON THE EXPIRY OF THE LEASE?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">60. A tenant continuing in possession after the expiry of the lease may be treated as a tenant at sufferance, which status is a shade higher than that of a mere trespasser, as in the case of a tenant <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">continuing after the expiry of the lease, his original entry was lawful. But a tenant at sufferance is not a tenant by holding over. While a tenant at sufferance cannot be forcibly dispossessed, that does not detract from the possession of the erstwhile tenant turning unlawful on the expiry of the lease. Thus, the appellant while continuing in possession after the expiry of the lease became liable to pay mesne profits.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">LIMITATION: WHETHER THE SUIT IS BARRED IN RELATION TO MESNE PROFITS BEYOND 3 YEARS OF THE SUIT?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">83. Once the lease comes to an end, the erstwhile tenant becomes a tenant at sufferance. He cannot be dispossessed, except in accordance with law. But he cannot, in law, have any right or interest anymore. Even though, under Section 108 of the Transfer of Property Act, if there is no contract to the contrary, the tenant may have the right, under Section 108(j), to transfer his interest absolutely or even by sub-lease or mortgage, when the lease expires by afflux of time, his interest as lessee would come to an end.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Thus, on the expiry of a lease, the erstwhile tenant, who remains a tenant at sufferance, would have no right to transfer.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">84. In this regard, we would have to hold that there is a new lease by holding over. The acceptance of the amount after the expiration of the lease by the respondent was without prejudice to its case. We do not think that the appellants can persuade us to hold that there is a lease by holding over.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">85. Therefore, it may not be appropriate to allow the appellant to raise the contention of limitation or to allow him to succeed on the same, based on the case falling under Article 51. This is, no doubt, despite noticing the averment in the plaint which appears to have been made with reference to Section 2(12) of the CPC. We would have to, however, bear in mind the principle laid down in Atmaram (supra) and the principles we have already considered. We are of the view that landlord by the suit seeks to realise, what in law is described as damages for unauthorised occupation by the tenant after the expiry of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">lease. It is not to be conflated to the profits received within the meaning of Article 51 of the Limitation Act, as it involves finding out the rate at which the landlord could have let out the premises. It would be the residuary Article, namely, Article 113, which should apply.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">86. The result would be that, in the factual context, it may not be possible to hold that the suit filed by the respondent, should still be found to fall under Article 51 of the Limitation Act and barred as regards part of the cause of action.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">87. The upshot of the above discussion is that, we find no merit in the appeals. The appeals shall stand dismissed. The parties to bear the respective costs.</span></span></p>', '91e449e65cfef4ef39d393f577539c29.jpg', 'a48fbba0c291cf1791a2008aa227811f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-09', 1, '', '', '2022-09-08 01:13:50', '2022-09-09 13:05:09');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2168, '0CEafxCpaKZqQCTOaeWh3UMt3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Limitation to claim for mesne profits from tenant falls under Article 113 and not under Article 51 of the Limitation Act since the cause of action is a continuing one. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Indian Oil Corporation Ltd Vs Sudera Realty Private Limited<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 6199 of 2022 decided on 6 September 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice K.M. Joseph and Pamidighantam Sri Narasimha.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">The appellant is the defendant in the suit. By the impugned judgment, the division bench of the High </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court has partly allowed the appeal filed by the appellant and modified the decree granted by the learned Single Judge in a suit filed by the respondent seeking mesne profits.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2. The respondent-plaintiff instituted the suit on the following basis. The respondent demised the centrally air-conditioned 2 nd, 3 rd and 4th floors of premise no. 1, Shakespeare Sarani, Kolkata and a nonair-conditioned guest house on the 9th floor. The lease was to subsist for a term of 21 years commencing from the date when the said floors were handed over to the appellant lessee. The respondent further claimed that there is a supplementary agreement which is also duly registered on 12.09.1969, which had brought about certain modifications in the original lease dated 21.11.1968. It was further the case set up by the respondent that the 2 nd and 3 rd floors came to handed over on 12.09.1969 and the possession of the 4th floor was made over to the appellant on 18.12.1969. It was alleged that there was failure on the part of the appellant to join and cooperate with the respondent</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in the matter of finalisation, execution, and registration of an appropriate document of lease in regard to the 2 nd, 3rd and 4 th floors. There is reference to an earlier suit which was filed in the year 1978, and which was not followed to its logical culmination but ended in a compromise. More of it later. Suffice it to notice at this stage that the proximate cause for the litigation was the failure of the appellant to hand over vacant possession of the 2 nd, 3rd and 4 th floors, upon the expiry of the lease. Possession was handed over to the respondent only on 31.05.1994. Resultantly, the respondent alleged that the appellant was in wrongful possession of the 2 nd, 3 rd and 4 th floors after the expiry of the lease on 11.09.1990 i.e., for the 2 nd and 3 rd floors and for the 4 th floor on 17th December, 1990 or alternatively on the expiry of the 3 rd or 4th of November, 1991 till 31.05.1994. Even in terms of the computation of the period of 21 years by the appellant, this illegal possession continued till 31.05.1994. The respondent claimed mesne profits in respect of 57105 sq. feet at the rate of Rs.31 per sq. feet per month.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">3. In the written statement filed by the appellant the case inter alia set up was that the period of lease was to be computed from the date of delivery of possession. The document dated 21st November, 1968 constituted the actual demise of the property. By notice dated 7th December, 1977, the respondent had determined the lease and there was a suit filed by the respondent which was dismissed as not pressed and appellant had constructed a new office building. It took some time to vacate. There was a clause for premature termination of the lease at the option of the appellant. Appellant was entitled to the protection of the West Bengal Tenancy Act, 1956 (hereinafter referred to as the ‘Tenancy Act’). The case of wrongful possession was denied. In the alternative, it was contended that respondent accepted monthly rent after the determination of the tenancy by notice dated 7th December, 1977. The tenancy is also protected therefore under the Tenancy Act.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">The following points arise:</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Point No.01: - Whether the documents styled as agreement dated 21.11.1968 and the supplementary agreement for lease dated 12th September, 1969 constituted a lease?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Point No.02: - Whether the possession of 2nd and 3rd floors were handed over on 17.09.1969 and 4th floor stood handed over on 04.11.1970?<br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">14. Thus, we find that there was indeed a written agreement of lease dated 21.11.1968. The term of the lease was 21 years which was to begin from the date on which demised premises was handed over to the lessee. The rent for the demised premises was also fixed.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">15. The next question which would arise is, as to when the possession was handed over? As we have noticed, the dispute which is raised pertains to the 2 nd, 3rd and 4th floors of the building in question. As already noticed by us, the Division Bench has found in modification of the judgment of the learned Single Judge that as there are no documents to show the exact date, the appellant was put in possession of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the 2nd and 3rd floors and fixed 17.09.1969 as the starting point.</span><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">19. In other words, under the said agreement, in regard to the 2nd floor, the respondent-Lessor undertook to hand over possession to the Lessee upon the passage of six months from the date of the agreement. It was also obliged to make space for parking. Likewise, in Clause 18, the possession was to be handed over immediately upon the expiration of eight and half months.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">20. Clause 19 provided for making available the 4 th floor immediately after expiration of eleven months from the date of agreement dated 17.11.1968. Clause 21 provided for complying with the schedule for handing over possession and resultantly, making the respondent liable for penalty or damage settled at 10% of the monthly rent inter alia. Clause 22 makes it clear that the respondent was to complete the construction of the entire building (multi storey building) within 3 years from 17.11.1968<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">21. In the Supplemental Agreement, there were certain changes by way of additional rights being created in favour of the appellant. Clause 8 of the original agreement stood modified, in that, in place of the liability of the lessee for Rs.1,68,300/-, as already noticed, it is provided that a sum of Rs.1,64,462.40 was to be paid in three equal instalments. The first of such instalment was to be paid when the possession of the 2nd floor was given. Second instalment was to be paid when possession of the 3rd floor was given. The third instalment was to be paid when possession of the 4th floor was given. Rs.9900/- was payable in connection with guest house. It is in light of this clause that the Exhibit 2 letter dated 16.9.1969 must be appreciated. In other words, the said letter would indicate that in terms of the agreement, as 2 nd and 3rd floors stood handed over, the respondent was insisting for payment of the security deposit, the appellant was obliged under the agreement (clause 8) as modified in the supplementary agreement to pay to the respondent. No doubt, the case of the appellant would appear to be that the possession was not handed <span style=\"font-size: 12pt;\">over in total compliance of the agreement and the attendant facilities were not still made available.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\">22. We would think that the findings rendered by the High Court is a plausible view and we would, therefore, take the view that possession of 2nd and 3rd floors was handed over on 17.09.1969 and 4th floor stood handed over on 04.11.1970. </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Point No. 3: - Whether the appellant is a monthly tenant from November, 1969?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">23. The next question which would arise is whether the appellant should be treated as a monthly tenant for the reason that a formal registered deed was contemplated. The agreement dated 17.11.1968 as also the construction of the premises was not completed </span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">25. The agreement dated 12.9.1969 is admittedly a registered document. We do not find any force in law or on facts to permit the appellant to contend that the appellant be treated as a monthly tenant since 1968. We have noticed the stand taken by the appellant that neither the appellant nor the respondent insisted upon execution of a formal deed of lease. The requisite stamp was paid. Thus, the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">lease for 21 years came into being. The period of the lease is to be calculated from the date when the possession was handed over. We have although found that possession, in fact, was handed over on the dates when it is handed over as found in the impugned judgment. The cases of the appellant is also in the teeth of the correspondence dated 21.08.1990 and 03.11.1990, inter alia.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Point No. 04: - Whether there was a prior determination of the lease of 21 years by the respondent, if so, whether the appellant is entitled to protection of the Tenancy Act?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">26. The next contention raised by the appellant is that in the development in the year 1977, the respondent put an end to the lease dated 17.11.1968 and transformed the appellant into a monthly tenant and what is more relevant, it entitled it to the benefits under the West Bengal Tenancy Act. This argument is based on the notice dated 12.12.1977 issued by the respondent by which according to the appellant, the lease was terminated. According to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appellant, the matter did not stop with the mere issuance of the notice. Parties went to court. The respondent filed O.S. No. 20/1978. The appellant also filed a Suit.</span><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">57. In this case it is no doubt true that there is pre-determination clause which gave an option to the appellant to determine the lease after a period of 8 years. From the evidence and the stand taken by the appellant as emerging from the documents, it is clear that the appellant continued for the full length of 21 years in terms of the lease. Its possession was never ruffled. The appellant also filed a suit. During the entire period after the execution of the deed in 1968 and the supplementary lease deed in 1969, it would appear that till the period of 21 years ran out, appellant never took up the case based on its right under the West Bengal <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Premises Tenancy Act in view of the option it had to determine the lease under Clause 9. The presence of the clause in question is not to be confused with the issue relating to the effect of the notice dated 07.12.1977 purported to have been sent to the respondent which we have separately dealt with. Therefore, in terms of Pabitra Kumar Roy (supra), the appellant may not succeed on the strength of the option it claimed under the agreement to lease.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">MESNE PROFITS: WAS THE POSSESSION OF THE APPELLANT WRONGFUL ON THE EXPIRY OF THE LEASE?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">60. A tenant continuing in possession after the expiry of the lease may be treated as a tenant at sufferance, which status is a shade higher than that of a mere trespasser, as in the case of a tenant <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">continuing after the expiry of the lease, his original entry was lawful. But a tenant at sufferance is not a tenant by holding over. While a tenant at sufferance cannot be forcibly dispossessed, that does not detract from the possession of the erstwhile tenant turning unlawful on the expiry of the lease. Thus, the appellant while continuing in possession after the expiry of the lease became liable to pay mesne profits.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">LIMITATION: WHETHER THE SUIT IS BARRED IN RELATION TO MESNE PROFITS BEYOND 3 YEARS OF THE SUIT?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">83. Once the lease comes to an end, the erstwhile tenant becomes a tenant at sufferance. He cannot be dispossessed, except in accordance with law. But he cannot, in law, have any right or interest anymore. Even though, under Section 108 of the Transfer of Property Act, if there is no contract to the contrary, the tenant may have the right, under Section 108(j), to transfer his interest absolutely or even by sub-lease or mortgage, when the lease expires by afflux of time, his interest as lessee would come to an end.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Thus, on the expiry of a lease, the erstwhile tenant, who remains a tenant at sufferance, would have no right to transfer.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">84. In this regard, we would have to hold that there is a new lease by holding over. The acceptance of the amount after the expiration of the lease by the respondent was without prejudice to its case. We do not think that the appellants can persuade us to hold that there is a lease by holding over.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">85. Therefore, it may not be appropriate to allow the appellant to raise the contention of limitation or to allow him to succeed on the same, based on the case falling under Article 51. This is, no doubt, despite noticing the averment in the plaint which appears to have been made with reference to Section 2(12) of the CPC. We would have to, however, bear in mind the principle laid down in Atmaram (supra) and the principles we have already considered. We are of the view that landlord by the suit seeks to realise, what in law is described as damages for unauthorised occupation by the tenant after the expiry of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">lease. It is not to be conflated to the profits received within the meaning of Article 51 of the Limitation Act, as it involves finding out the rate at which the landlord could have let out the premises. It would be the residuary Article, namely, Article 113, which should apply.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">86. The result would be that, in the factual context, it may not be possible to hold that the suit filed by the respondent, should still be found to fall under Article 51 of the Limitation Act and barred as regards part of the cause of action.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">87. The upshot of the above discussion is that, we find no merit in the appeals. The appeals shall stand dismissed. The parties to bear the respective costs.</span></span></p>', '4ef1f5a1523f8a75324a571506d2cbbb.jpg', '49abb78add67d0040efb5bb55e1086a1.jpg', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-08', 1, '', '', '2022-09-08 01:23:13', '2022-09-08 08:37:47'),
(2169, 'uMC11qcCsyqqORWjpQYj6y6NI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prevention of Corruption Act. Previous sanction is not required before passing an order for investigation under Section 156(3) of Cr.P.C. Authoritative pronouncement of the Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Abhraham T.J Vs B.S. Yediyurappa and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 5659 of 2021 decided on 7 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Sunil Dutt Yadav.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner has called in question the validity of the order dated 08.07.2021 passed by the Court of LXXXI Addl. City Civil and Sessions Judge, Bengaluru (CCH-82) in PCR No.40/2021, whereby the Private Complaint filed under Section 200 of the Code of Criminal Procedure, 1973 (\'Cr.P.C.\' for brevity) and the interim application filed by the Complainant under Section 156(3) of Cr.P.C. have been found to be not maintainable in the absence of valid sanction and accordingly, the complaint and the application have been dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The Complainant has sought for restoration of the complaint and to register the First information Report (\'FIR\') against the accused for the offences punishable under Sections 7, 8, 9, 10 and 13 of the Prevention of Corruption Act, 1988 (\'P.C. Act\' for brevity) and under Sections 383, 384, 415, 418, 420 read with Section 34 and Section 120B of the Indian Penal Code, 1860 (\'IPC\' for brevity).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17. In the present case, the following questions arise for consideration of this Court:- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(A)<span style=\"white-space:pre\">	</span>WHETHER SANCTION OF THE COMPETENT AUTHORITY IS REQUIRED BEFORE PASSING AN ORDER  FOR  INVESTIGATION  UNDER  SECTION 156(3) OF CR.P.C.? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(B)<span style=\"white-space:pre\">	</span>WHETHER REQUIREMENT OF PREVIOUS APPROVAL FROM THE   REQUISITE   AUTHORITY   BEFORE CONDUCTING ANY ENQUIRY, INQUIRY OR INVESTIGATION INTO AN OFFENCE UNDER SECTION 17A OF P.C. ACT, WOULD ACT AS A BAR ON THE SPECIAL JUDGE FOR PASSING AN ORDER UNDER SECTION 156(3) OF CR.P.C. VIS-À-VIS THE PUBLIC SERVANTS, i.e., ACCUSED NOS.1, 6 AND 7? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(C)<span style=\"white-space:pre\">	</span>WHETHER IN THE ABSENCE OF ANY RESPONSE FROM THE COMPETENT AUTHORITY REGARDING GRANT OF SANCTION SOUGHT AGAINST ACCUSED NOS. 6 AND 7, OUGHT THE SPECIAL JUDGE HAVE PROCEEDED ON THE PREMISE OF DEEMED SANCTION AS CONTENDED? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(D)<span style=\"white-space:pre\">	</span>WHETHER THE SPECIAL JUDGE HAS ERRED IN DISMISSING THE COMPLAINT IN ITS ENTIRETY EVEN AS AGAINST THE ACCUSED OTHER THAN PUBLIC SERVANTS, VIZ., ACCUSED NOS. 2, 3, 4, 5, 8 AND 9 ONLY ON THE GROUND OF REJECTION OF SANCTION AGAINST  ACCUSED  NO.1  AND  ABSENCE  OF SANCTION  FOR  PROSECUTION OF ACCUSED  NOS.6 AND 7?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(A) WHETHER SANCTION OF THE COMPETENT AUTHORITY IS REQUIRED BEFORE PASSING AN ORDER  FOR  INVESTIGATION  UNDER  SECTION 156(3) OF CR.P.C.?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>30.10. Thus a proper reading of the order of reference would reveal the following:- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>While passing an order at the stage of 156(3) of Cr.P.C., there would be consequences, more so, where a Magistrate may act in a mechanical and mindless manner. However, that cannot be a test as noted in para-32.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>The aspect of prior sanction to prosecute a public servant for the offences under the P.C. Act is a provision under Chapter XIV of Cr.P.C. (see para-33). Accordingly, the Court has voiced its opinion that for the purposes of Section 19 of the P.C. Act the question of sanction would arise only as regards stage at Chapter XIV of Cr.P.C.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space:pre\">	</span>Reference is made only to decide whether requirement of prior sanction required as regards the stage at Chapter XIV can be imported even as regards the stage at Chapter-XII [where order directing investigation is passed under Section 156(3) of Cr.P.C.] merely because a public servant is involved. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>30.11. Accordingly, it is very clear and is an accepted position that, prior sanction contemplated under Section 19(1) of P.C. Act is at the stage of Chapter XIV, i.e. cognizance under Section 190 of Cr.P.C. Whether it could be extended to order under Section  156(3)  of  Cr.P.C.  is  the  question  that  is referred to be decided by the larger Bench. Accordingly, there is no ambiguity that prior sanction is required only at the stage of taking cognizance in terms of Section 190 of Cr.P.C. for the purpose of Section 19(1) of P.C. Act. This is however subject to the caveat that the Amendment in 2018 to the P.C. Act subsequent to Manju Surana (supra) would prescribe that sanction is required where the Special Judge proceeds under Chapter XV as regards a Private Complaint only at the stage of issuance of notice under Section 204 of Cr.P.C. in terms of proviso to Section 19 of the P.C. Act introduced by way of amendment.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>30.12. Thus the Court has clarified that the order of reference would not come in the way of ordering investigation under Section 156(3) of Cr.P.C. i.e., the question of sanction for passing an order under Section 156 would not arise, as it is that very question that has been referred to the larger Bench and is still to be determined. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>30.13. Accordingly, the order of reference<span style=\"white-space:pre\">	</span>is clear as to the purpose and scope of the reference.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>31.19. Insofar as offences under Sections 8, 9 and 10 of P.C. Act, in light of the Amendment in 2018 to Section 19(1) of the P.C. Act, no previous sanction is required and if the Special Judge were to proceed against the accused as regards such offence, the question of previous sanction will not arise. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>31.20. If that were to be so, the question of insisting sanction for prosecution at the stage of passing the order under Section 156(3) of Cr.P.C. would not arise. Accordingly, the bar as noticed in Aiyappa (supra) as regards such stage cannot be read in as a restriction on the power of the Court.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>31.22. Accordingly, the question of insisting on sanction while passing orders on reference for investigation under Section 156(3) of Cr.P.C. would not arise and accordingly, the dismissal of complaint itself on such ground is impermissible.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>33.3. At the outset, it must be noted that in all the above judgments, the Courts have failed to take note of the express and plain reading of the order of reference as noted in the discussion supra at paras - 30.10 to 30.13.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>III(B). WHETHER REQUIREMENT OF PREVIOUS APPROVAL FROM THE REQUISITE AUTHORITY BEFORE CONDUCTING ANY ENQUIRY, INQUIRY OR INVESTIGATION INTO AN OFFENCE UNDER SECTION 17A OF P.C. ACT, WOULD ACT AS A BAR ON THE SPECIAL JUDGE FOR PASSING AN ORDER UNDER SECTION 156(3) OF CR.P.C.  VIS-À-VIS THE PUBLIC SERVANTS, i.e. ACCUSED NOS.1, 6 AND 7?<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>38. In the present case, the private Complainant is before the Court and not before the Police Authorities. When the Special Judge has already entertained the opinion at para-18 of the impugned order that there are \"some material to refer the complaint for investigation\", there is no reason for bar under Section 17A of P.C. Act to prohibit the Court from referring the matter for investigation. Upon such direction and order, if passed under Section 156(3) of Cr.P.C., the Police Authorities are obligated to register FIR which is the commencing point of investigation. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>39. Once FIR is registered, the Police Authorities however cannot move forward for conducting enquiry, inquiry or investigation without previous approval as mandated under Section 17A of P.C. Act. An important aspect that requires to be noticed is that Section 17A of P.C. Act comes into play as an embargo on the Police Authorities only where the alleged offence is relatable to any recommendation made or decision taken by the public servant in discharge of his official functions or duties. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>40. In the present case, the relevant facts to determine as to whether the alleged offence is relatable to recommendation made or decision taken in discharge of official functions or duties are to be seen by the Special Judge to whom the Court proposes to remand the matter. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>41. Hence, the impugned order cannot be supported by the contention that lack of approval under Section 17A of P.C. Act would also prohibit the Special Judge from passing order under Section 156(3) of Cr.P.C.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>42. It is however clarified that once FIR is registered and the Police Authorities entertain any doubt as to the bar of 17A of P.C. Act to commence investigation, it is always open to the Investigating Authorities to obtain clarification from the Special Judge in that regard.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>43.<span style=\"white-space:pre\">	</span>It is also clarified that, if the Special Judge upon remand decides to proceed as regards the Private Complaint under Chapter XV of Cr.P.C., the bar under Section 17A being a bar only on the Police Authorities will not operate.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>III(C). WHETHER IN THE ABSENCE OF ANY RESPONSE FROM THE COMPETENT AUTHORITY REGARDING GRANT OF SANCTION SOUGHT AGAINST ACCUSED NOS. 6 AND 7 OUGHT THE SPECIAL JUDGE HAVE PROCEEDED ON THE PREMISE OF DEEMED SANCTION AS CONTENDED?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>51. In the event of decision not being taken within a reasonable period of time, the only remedy open would be to obtain appropriate direction in exercise of writ jurisdiction. Needless to state that where the request for sanction is pending consideration, the proceedings before the Special Court is to be kept in abeyance. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>52. Accordingly, the contention that the Special Court ought to have continued the proceedings against Accused Nos.6 and 7 on the premise of deemed sanction, cannot be accepted. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>53. Further, in light of the discussion at para-61.3 infra, the Complainant could not have approached the Authorities on his own seeking for sanction in light of stipulation under Section 19 of the P.C. Act.  Accordingly, the question of deemed sanction even otherwise does not arise in the present case.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>III(D). WHETHER THE SPECIAL JUDGE HAS ERRED IN DISMISSING THE COMPLAINT IN ITS ENTIRETY EVEN AS AGAINST THE ACCUSED OTHER THAN PUBLIC SERVANTS, VIZ., ACCUSED NOS. 2, 3, 4, 5, 8 AND 9 ONLY ON THE GROUND OF REJECTION OF SANCTION AGAINST ACCUSED NO.1 AND ABSENCE OF SANCTION FOR PROSECUTION OF ACCUSED NOS.6 AND 7?<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>54. It is the contention of the Complainant that the dismissal of complaint for lack of sanction against Accused No.1 should not have any consequence as regards the complaint against Accused Nos.2, 3, 4, 5, 8 and 9, who are non-public servants who are alleged to have committed offences under Sections 7, 8, 9 and 10 of the P.C. Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>55. It must be noted that the Apex Court in State through Central Bureau of Investigation, New Delhi v. Jitender Kumar Singh29 [\'Jitender Kumar Singh\'] in the discussion from para-26 onwards has opined that the offences under Sections 8, 9, 12 of P.C. Act can be committed by a public servant or by a private person or by combination of both.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>57. In the present case, considering that the allegation made in the complaint is also as regards the offences under Sections 8, 9 and 10 of P.C. Act (see prayer of PCR No.40/2021), the dismissal of complaint against the public servants ought not to have resulted in closure of complaint as against non-public servants accused. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>58.Accordingly, in light of the discussion holding that order under Section 156(3) of Cr.P.C. could be passed without previous sanction under Section 19 of P.C. Act, even if cognizance is not taken against a public servant, i.e. Accused Nos. 6 and 7 due to lack of sanction or even where sanction is rejected as regards Accused No.1, there is no embargo on the Special Court to take cognizance and continue the proceedings as against non-public servants accused as regards the offences alleged to have been committed by them under the provisions of the P.C. Act. and IPC.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>59.2. In the present case, the offences being cognizable and the Police Authorities having failed to take action regarding the offences, the complainant has approached the Court by way of a Private Complaint requesting registration of FIR against the Accused and to proceed further to investigate. Accordingly, the complainant\'s grievance as also regarding non-registration of FIR is sought to be redressed by calling upon the Court to order for registration of FIR on the basis of the Private Complaint. In such a scenario, the appropriate course of action wherein once the Special Judge is of the view that cognizable offences are made out, would be to pass order under Section 156(3) of Cr.P.C. rather than following the procedure under Chapter XV of Cr.P.C. Though Section 156(3) of Cr.P.C. uses the word \"may\", which would imply that the Magistrate has discretion to order for investigation, such power must be exercised judiciously and where the Magistrate finds the commission of a cognizable offence which would indicate the need for Police investigation, Magistrate ought to exercise jurisdiction under Section 156(3) of Cr.P.C. to direct the Police to investigate.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>61. REJECTION OF SANCTION AS REGARDS ACCUSED NO.1</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>61.3. It must be noted that in terms of Section 19 of the P.C. Act, no request can be made for sanction by a person other than \"Police Officer or an Officer of an Investigation Agency or other law enforcement authorities, ....\", which is however subject to the further rider that such person other than the Police Officer may be called upon to obtain sanction from the appropriate Authority by the Court where complaint filed by him has not been dismissed under Section 203 of Cr.P.C. and the Court intends to continue proceedings against the Accused (this would arise where the Magistrate decides to follow the procedure under Chapter XV of Cr.P.C. as regards to the Private Complaint). </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>61.4. In light of the above, the Complainant approaching the Governor for sanction is of no legal significance, as he was not competent to seek for sanction. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>61.5. Accordingly, the rejection of such request is liable to be ignored, as such request was not made either by the Police Officer or an Officer of Investigation Agency or other law enforcement Authorities; nor pursuant to the order of Court as contemplated under First Proviso to Section 19 of the P.C. Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>61.6. Thus, the rejection of sanction for prosecution would not come in the way of continuance of proceedings against Accused No.1 upon restoration of the complaint. Sanction as regards Accused No.1 would be an aspect for consideration at the appropriate stage as per law as has been made out in terms of the discussion above.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>62.1. Accordingly, the petition is allowed in part.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7f2fbc07f648605710a3bd7f04564fa1.JPG', '2415d9fe0c1cee8313755b9c89167536.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-08', 1, '', '', '2022-09-08 16:01:46', '2022-09-09 00:35:15');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2170, 'vaa2ivxNIAAwYW5tCksgbSAQE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Dishonestly receiving stolen property. Initial possession of stolen goods may not be illegal but retaining those with the knowledge that it was stolen property, makes it culpable. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shiv Kumar Vs The State of Madhya Pradesh.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1503 of 2022 decided on 7 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.M. Joseph and Hrishikesh Roy.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The challenge in this appeal is to the judgment\r\ndated 12.03.2019 in the Criminal Appeal No. 1261 of\r\n2006 whereunder the appellant’s conviction by the trial\r\nCourt under Section 411 of the Indian Penal Code, 1860\r\n(for short “IPC”), was sustained by the High Court.  </span><span style=\"font-size: 12pt;\">For such conviction, the appellant was sentenced to\r\nrigorous imprisonment (for short “R.I.”) for 2 years\r\nand fine of Rs. 1,000 and in default of fine payment,\r\nadditional R.I. for 3 months was ordered.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. In this case, although recovery of items was made,\r\nthe prosecution must further establish the essential\r\ningredient of knowledge of the appellant that such\r\ngoods are stolen property. Reliance solely upon the\r\ndisclosure statement of accused Raju alias Rajendra and\r\nSadhu alias Vijaybhan Singh will not otherwise be\r\nclinching, for the conviction under Section 411 of the\r\nIPC.<span style=\"font-size: 12pt;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">13. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The penal Section extracted above can be broken\r\ndown into four segments namely: Whoever, I.\r\nDishonestly; II. Receives or retains any stolen\r\nproperty; III. Knowing; or IV. Having reason to believe\r\nthe same to be stolen property, shall be punished with\r\nimprisonment of either description for a term which may\r\nextend to three years, or with fine, or with both.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. When we apply the legal proposition as propounded\r\nto the present circumstances, the inevitable conclusion\r\nis that the prosecution has failed to establish that\r\nthe appellant had the knowledge that articles seized\r\nfrom his possession are stolen goods. This essential\r\nelement was not established against the appellant to\r\nbring home the charge under Section 411 of the IPC\r\nagainst him.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. That apart, the disclosure statement of one accused\r\ncannot be accepted as a proof of the appellant having\r\nknowledge of utensils being stolen goods. The\r\nprosecution has also failed to establish any basis for\r\nthe appellant to believe that the utensils seized from\r\nhim were stolen articles. The factum of selling\r\nutensils at a lower price cannot, by itself, lead to\r\nthe conclusion that the appellant was aware of the\r\ntheft of those articles. The essential ingredient of\r\nmens Rea is clearly not established for the charge\r\nunder Section 411 of IPC. The Prosecution’s evidence\r\non this aspect, as they would speak of the character\r\nGratiano in Merchant of Venice, can be appropriately\r\ndescribed as, “you speak an infinite deal of nothing.\"</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. In a case like this, where the fundamental evidence\r\nis not available and the law leans in appellant’s\r\nfavour, notwithstanding the concurrent finding, the\r\nCourt has to exercise corrective jurisdiction as the\r\ncircumstances justify. As such, taking a cue from\r\nHaryana State Industrial Development Corporation vs. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Cork Manufacturing Co., the exercise of extraordinary\r\njurisdiction under Article 136 is found to be merited\r\nto do justice to the appellant who was held to be\r\nguilty, without the requisite evidence to establish his\r\nmens rea in the crime.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>25. In these circumstances where it is not established\r\nthat the appellant dishonestly received stolen property\r\nwith the knowledge and belief that the goods found in\r\nhis possession were stolen, the conviction of the\r\nappellant under Section 411 IPC, in our view, cannot\r\nbe sustained. Therefore, applying the test in Trimbak\r\n[supra], it must be held that the appellant was\r\nerroneously convicted. Therefore, we order the\r\nacquittal of the appellant. The appeal stands allowed\r\nwith this order.</b></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f5d07cf674a0e562cd86764c78e9bba2.jpg', '5cb5b0ab12ca6e9d4e9458ac7e813316.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-09', 1, '', '', '2022-09-08 16:32:08', '2022-09-09 06:25:28'),
(2171, 'j18wUUjc3pc4YGRHaBInpQuGH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Corruption is an offence against the State and the society at large. Criminal cases involving corruption by a public servant cannot be quashed on the basis of a settlement reached between the parties. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>P. Dharmaraj Vs Shanmugam and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1514 of 2022 decided on 8 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Abdul Nazeer and Justice V. Ramasubramanian.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. There are three Special Leave Petitions on hand, two of which challenge an Order passed by the High Court of Judicature at Madras in a Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C”), quashing a criminal complaint in CC No.25 of 2021 pending on the file of the Additional Special Court for trial of cases related to Members of Parliament and Members of Legislative Assembly of Tamil Nadu, on the ground that all the victims have compromised their claims with the accused. The third Special Leave Petition arises out of an order of dismissal passed by the High Court in a Criminal Miscellaneous Petition filed by a third party by name Anti Corruption Movement, seeking the recall of the order dated 30.07.2021 in the quash petition.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. The brief facts sufficient for the disposal of these special leave petitions are as follows</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii) The FIR was for alleged offences under Sections 405, 420 and 506(1) of the Indian Penal Code (for short “IPC”). Four persons by name Shri Senthil Balaji (the then Transport Minister), Shri Ashok Kumar (the brother of the Minister), Shri Shanmugam (Personal Assistant to the Minister) and Shri Raj Kumar were cited as the accused in the FIR.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iii) After investigation, the police filed a final report dated 12.04.2019 under Section 173(2)(i) of Cr.P.C., against all the four accused named in the First Information Report. The final report indicted the persons named as accused, for alleged offences under Sections 406, 409, 420, 506(1) read with Section 34 IPC. The Special Court for trial of cases related to Members of Parliament and Members of Legislative Assembly of Tamil Nadu took the final report on file in CC No.25 of 2021.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iv) Shri Shanmugam, named as accused No.3 then filed a criminal original petition in Criminal O.P. No.13374 of 2021 on the file of the High Court of Judicature at Madras under Section 482 of the Cr.P.C. praying for quashing the criminal complaint CC No.25 of 2021.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(vi) The victims who originally claimed to have paid money for procuring employment, also filed individual affidavits supporting the accused.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(vii) A joint compromise memo dated 28.7.2021 containing the signatures of 13 victims (who had paid money) on the one hand and accused No.3 on the other hand was also filed before the High Court.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(x) In the light of what had transpired after the filing of the final report, the High Court passed an order dated 30.07.2021 quashing the criminal complaint on the ground that “by passage of time, the parties have decided to bury their hatchet and that no useful purpose would be achieved by keeping the criminal case pending”. After noticing that the offences are not compoundable in nature, the High Court recorded in one sentence that it had taken note of the guidelines issued by this Court in Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Ors. vs. State of Gujarat1 and The State of Madhya Pradesh vs. Dhruv Gurjar and Another2 and concluded that the complaint could be quashed. (xi) Upon coming to know of the quashing of the complaint, a person by name Shri P.Dharamaraj, who participated in the process of selection for appointment to the post of drivers/conductors in the Metropolitan Transport Corporation, but who did not get selected, has come up with one special leave petition contending that what happened was a cash­for­job scam and that he would have got selected if the scam had not taken place. Since he was not a party to the quash proceedings before the High Court, his special leave petition was accompanied by an application for leave to file Special Leave Petition. The said application was allowed by this Court on 11.02.2022</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14. In a nutshell, the rival contentions revolve around three important issues. They are: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i) the locus standi of the appellants;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii) the effect of the compromise entered into between the de facto complainant and 13 named victims on the one hand and the four accused on the other hand; and</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iii) the non­inclusion in the charge­sheet of the offences under the P.C. Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Locus standi</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">16. From what is extracted above from the counter affidavit of the Investigation Officer filed in a connected writ petition, it is clear that even according to the Investigating Officer, persons who claim to have paid money, but did not receive orders of appointment, were not the only victims. Persons who were more meritorious, but who did not get selected, on account of being edged out by candidates who paid money and got selected, are also victims of the alleged corrupt practices, if those allegations are eventually proved. Shri P. Dharamaraj, who is the appellant in one of these appeals, claims to be a candidate who participated in the selection, but could not make it. There is also an intervenor by name Shri Prithivirajan who was the petitioner in WP No.9061 of 2021, in which the counter affidavit referred to in the preceding paragraph was filed by the Investigation Officer. This candidate was not selected and according to him, he would have got selected, had there been no corrupt practices on the part of the concerned.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18. We cannot shy away from the fact that candidates, who are selected and appointed to posts in the Government/public corporations by adopting corrupt practices, are eventually called upon to render public service. It is needless to say that the quality of public service rendered by such persons will be inversely proportionate to the corrupt practices adopted by them. Therefore, the public, who are recipients of these services, also become victims, though indirectly, because the consequences of such appointments get reflected sooner or later in the work performed by the appointees. Hence, to say that the appellants have no locus standi, is to deny the existence of what is obvious.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>24. In fact, long before the aforesaid amendment, the question of locus standi was considered by this Court in P.S.R. Sadhanantham vs. Arunachalam and Another5 . The said case arose under peculiar circumstances. A person who was convicted by the Sessions Court for an offence under Section 302 and whose conviction was set aside by the High Court, was convicted by this Court in a criminal appeal, filed not by the State, but by the brother of the victim, though he was neither the complainant nor the first informant. Thereafter, the accused filed a writ petition under Article 32 contending that this Court had no power to grant special leave to the brother of the victim to file an appeal against the judgment of the High Court. Therefore, the objection about the locus standi of the appellants is without any merit. In any case, the appellant in one of these appeals, is a victim, as he could not get selected on account of the alleged corrupt practices. Therefore, the contention regarding the locus standi of the appellants is to be rejected.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>26. The stand taken by Arulmani before the High Court is deplorable for one more reason. It is seen from an entry in the FIR out of which the present case arises, that Arulmani filed a criminal original petition in Crl. O.P.No. 24029 of 2017 on the file of the High Court, complaining that he lodged a complaint against these 4 accused way back on 21.09.2017 and that no action was taken. On 16.11.2017, the High Court passed an order directing the Police to act in accordance with the law laid down by this Court in Lalita Kumari vs. Government of Uttar Pradeshand Others . It is only thereafter that the Police registered the FIR in Crime No. 344 of 2018 on 13.08.2018. Therefore, we would have hardly expected Shri Arulmani to say that the allegations against the Minister were added up later by the Police and that it was a simple money dispute. His present stand supporting the accused and questioning the locus standi of the appellants, is, to say the least, shocking and warrants something more than mere condemnation. We leave it at that in the hope that the employer and the State would take notice of his conduct. Suffice it to say for our present purpose that the objection relating to the locus standi of the appellants is liable to be rejected. Accordingly, it is rejected.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The Effect of the compromise and the non­inclusion of the offences under the P.C. Act</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>27. The second issue arising for consideration is about the effect of the compromise entered into between the de facto complainant and 13 named victims on the one hand and the 4 accused on the other hand.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>42. Thus it is clear from the march of law that the Court has to go slow even while exercising jurisdiction under Section 482 Cr.PC or Article 226 of the Constitution in the matter of quashing of criminal proceedings on the basis of a settlement reached between the parties, when the offences are capable of having an impact not merely on the complainant and the accused but also on others. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>43. As seen from the final report filed in this case and the counter affidavit filed by the I.O., persons who have adopted corrupt practices to secure employment in the Transport Corporation fall under two categories namely, </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i) those who paid money and got orders of appointment; and </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii) those who paid money but failed to secure employment. If persons belonging to the 2nd category are allowed to settle their dispute by taking refund of money, the same would affix a seal of approval on the appointment of persons belonging to the 1st category. Therefore, the High Court ought not to have quashed the criminal proceedings on the basis of the compromise.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>50. In the light of what is stated above, the impugned order of the High Court is wholly unsustainable. Therefore the appeals are allowed and the impugned order of the High Court is set aside. The criminal complaint is restored to file. The I.O. shall now proceed under Section 173(8) of the Code to file a further report, based on the observations made in the preceding paragraphs. Additionally/alternatively, the Special Court before which the CC is pending, shall exercise power under Section 216 of the Cr.P.C., if there is any reluctance on the part of the State/I.O. If two other cases where offences under the P.C. Act are included, are under the orders of stay passed by the High Court, the State should take appropriate steps to have the stay vacated. The Court dealing with those two cases should also keep in mind the disastrous effect of putting on hold the prosecution under the P.C. Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>51. At present we are not passing any orders on the prayer made by the intervenors either to constitute a Special Investigation Team or to appoint Special Public Prosecutor, since we do hope that based on the observations made above, the State itself may do the needful. We also make it clear that at the time of trial, the Special Court may not be swayed by the observations contained herein, but proceed on the merits of the case and the law on the points.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The appeals are allowed. I.As stand closed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'db018a0c89742ab74e154239eb5840e0.jpg', 'f0bd4b9b0892a00a2c175c7fd4b10066.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-08', 1, '', '', '2022-09-09 00:28:58', '2022-09-09 09:26:05'),
(2180, 'Y43XaBvVfRiisuhcLhrmcKyBy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Existence of a competing co-operative society in the area is only a guiding factor and not a restriction to permit new co-operative society under the Karnataka Co-operative Societies Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Prathamik Krushi Pattin Sahakari Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 101731 of 2022 decided on 3 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.I. Arun.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">Aggrieved by the permission being granted for\r\nestablishment and registration of a Co-operative Society of\r\nwhich respondent No.6 is the Chief Promoter in Siruguppa </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Tq, Tekkalkote Village, in spite of the petitioner Cooperative Society being registered and operating in the\r\nsame place, the instant writ petition is filed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. The case of the petitioner is that, it is a society\r\nregistered under the provision of the Karnataka CoOperative Societies Act, 1959 and it is operating for the\r\nbenefits of the farmers in the villages of Tekkalkote and\r\nDevi Nagar. When this is the position, respondent No.6\r\nhas sought to register another Co-operative Society in the\r\nvillage Tekkalkote and respondent No.2 has accorded\r\npermission for the same in violation of Rule 3-B(iii) and\r\ncontends that the same is liable to be set aside.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. Thus, respondent No.2 while according\r\npermission for a new society, has to consider the effect of\r\nan existing Co-operative Society in the area and decide\r\nwhether it is advisable to accord permission for the\r\ncommencement of a new Co-operative Society. In the\r\ninstant case, reading of the impugned order reveals that\r\nthe respondent No.2 has considered the existence of the\r\npetitioner society operating in the same area and has\r\nrecorded that, as the petitioner society is unable to cater\r\nto the needs of all the farmers in the area in which it is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">operating, it is desirable to accord permission for starting\r\nof a new Co-operative Society as requested by respondent\r\nNo.6. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Thus, under the provisions of the Karnataka CoOperative Societies Act, 1959, there is no bar on the\r\nnumber of Co-operative Society that can be registered in\r\nan area. However, the registering authority at the time of\r\naccording permission for registration of a new Cooperative Society has to consider certain factors as stated\r\nin the Karnataka Co-operative Societies Act and Rules\r\nmade thereunder, which includes overlapping of the\r\nexisting similar Co-operative Societies as per Rule 3-B(iii)\r\nof the Rules, so that the Co-operative Society to be\r\nregistered or a competing Co-operative Society, which is in\r\nexistence will not become a failure and the Co-operative\r\nmovement is not thwarted and that the registration of a\r\nnew Society should benefit the persons in the area. In the\r\ninstant case, respondent No.2 has considered the\r\nexistence of the petitioner – Co-operative Society in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">area where respondent No.6 is desirous of establishing\r\nanother Co-operative Society and the impugned order also\r\nrecords that the petitioner – Society has not been able to\r\ncater to the requirement of all the farmers in the area and\r\ngiven the population of the area, registration of another\r\nCo-operative Society is only going to benefit the Cooperative movement in the said area and help the people\r\ntherein. As held by this Court in W.P. No.104197/2021,\r\nthe rival Co-operative Society will always contend that\r\nthere is no need for establishment of another Co-operative\r\nSociety. What has to be looked into is whether the fact of\r\nanother competing Co-operative Society being already in\r\nexistence in the area and the requirement for a new Cooperative Society has been examined by the registering\r\nauthority or not.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. In the instant case, as already been stated\r\nabove, the registering authority has considered the\r\nexistence of the petitioner – Society and after satisfying\r\nhimself has accorded permission to collect share capital for </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">establishment of a new Society in accordance with the\r\nprovisions of Karnataka Co-operative Societies Act and\r\nRules made therein and I do not find any error in the\r\nsame.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>For the aforementioned reasons, the writ petition is\r\nhereby dismissed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>In view of the dismissal of the main petition, pending\r\napplications, if any, shall stand disposed off</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b5f08d0083e6a88266ab7aba889999d3.JPG', '312f934fa26c4c1ec57b959170f88b4e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-14', 1, '', '', '2022-09-13 18:14:37', '2022-09-14 12:54:14'),
(2173, 'Gt5pub1C2BQK2p19CYOuSfKHM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Person who relinquishes land in favour of Corporation is entitled to maximum Transferable Development Rights as per the amendment to KTCP Act. Karnataka High Court.   ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vijayashree Builders and Developers and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 10388 of 2022 decided on 26 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioners relinquished an area of 20,800.09 Sq. meters i.e. 5 acres 14 cents of land in favour of respondent No.3 under Section 14-B of Karnataka Town and Country Planning Act 1961 (for short `Act\'). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. In turn, respondent No.3 granted Development Right Certificate in favor of petitioners in the form of Notional Land equalling 1.5 times of the area of land surrendered. However, the development right certificate issued in favour of petitioners was subject to amendment to be effected to Section 14-B of the Act. Thereafter, Section 14-B of the Karnataka Town and Country Planning Act was amended, wherein the development right certificate to be granted in the form of notional land was equal to two times of the land surrendered. In view of the said amendment, the petitioners submitted a representation with the respondent No.3 to issue development right certificate in the form of notional land to an extent of two times of the total area of land surrendered.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 3. However, the said application was rejected on the ground that there is no provision under the Act to grant development right certificate in favour of petitioners to the extent of two times of the area of the land surrendered. The application submitted by the petitioners was not considered by the 2nd respondent, which constrained the petitioners to approach this Court in WP No.20329/2021 challenging the rejection of the application for grant of development right certificate. This Court by order dated 24.1.2022 quashed the communication dated 4.9.2021 issued by the 2nd respondent and further directed the 2nd respondent to reconsider the application dated 26.7.2021 in the light of amendment to Section 14-B of the Act and pass appropriate order in accordance with law. Thereafter the 2nd respondent has issued the impugned communication stating that the application submitted by the petitioners for grant of additional Transferable Development Right (for short `TDR\') in terms of the amendment to Section 14B of the Act cannot be considered since the proviso to Clause-10 of Section 14-B of the amended Act specifies that only those land owners shall be eligible for benefit of development right certificate as per the amendment to Section 14B of the Act who have not been issued with development right certificate five years or prior to the commencement of the amendment Act, 2021. Taking exception to the same, this writ petition is filed.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. Section 14-B of the Act was substituted by Act No.38 of 2015 with effect from 10.9.2015, which specifies that if any Public Authority requires any area for the public purpose, it shall notify the same in such manner as may be prescribed and the owner of such area hands over possession of such area free from all encumbrances to such Public Authority in lieu of any compensation he is entitled for grant of development right certificate as specified in the table.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 8. A reading of the table indicates that the development right certificate in the form of notional land shall be equal to two times of the total area surrendered for the purpose of parks and playgrounds. Hence, prior to amendment, the land owners were entitled for grant of development right certificate in the form of notional land equal to one and half times of the area of land surrendered, which were granted to the petitioners, however, was subject to amendment to Section 14-B of the Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">9. Section 14-B of the Act was substituted by Act No.38 of 2015 w.e.f. 10.9.2015. Hence, in view of substitution of Section 14B of the Act, the petitioners are entitled for development rights in the form of notional land equal to two times of the total area of land surrendered. The proviso to Clause-10 of Section 14B of the Act was inserted so as to grant development right certificate to owners who were not issued with development right certificate five years or prior to the commencement of amendment Act, 2021. Hence, the said provision has not taken away the rights of the petitioners for grant of development right certificate equal to two times of the total area of land surrendered as specified in the Table read with sub-section 1 of Section 14B of the Act. Hence, the impugned communication issued by the 2nd respondent is contrary to amended Section 14B of the Act and the same is not sustainable.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space: pre;\">	</span>Writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '102c6548158d8de92c195d8524267e22.jpeg', '3108a3eb531bd29bc41cc2289de22996.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-13', 1, '', '', '2022-09-10 23:08:37', '2022-09-13 22:22:15'),
(2174, 'O1BsywYVMpGoNBB8QaiNwyZqS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil court cannot enhance compensation under the Indian Telegraph Act towards diminution value if the Deputy Commissioner has already awarded under a particular head. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Executive Engineer Manjor Works, KPTCL and others Vs Yogeshwara.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 10330 of 2022 decided on 26 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Jyoti Mulimani</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The facts are stated as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner filed a petition under Section 16 (3) of the Indian Telegraphic Act, 1885 in Civil.Misc.No.282/2020 on the file of I Additional District and Sessions Judge, at Chitradurga, claiming compensation along with interest contending that he is the land owner of the land bearing Sy.No.683/1 of Doddasiddavvanahalli Village,  Kasaba Hobli, Chitradurga Taluk. It is said that the land is red fertile dry land. It is also contended that prior to the date  of drawing of High Tension Power Line, he was growing Sunflower, great Millet, Finger Millet, Maize, Groundnut, Bengal Gram, Onion, Cotton, Vegetables etc. and intended to dig Borewell and grow Arecanut,  Coconut,  Banana, Tega, Jack Fruit, Lemon, Sweet Lemon, Sapota and other Crops. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">He has specifically contended that the land is worth Rs.50,00,000/- (Rupees Fifty Lakh only) per acre and the respondents have drawn 220 KV Power Line/ Tower by destroying Onion and Chickpea Crops in the land to an extent of 2 acres and respondents have paid compensation of Rs.3,28,000/- (Rupees Three Lakh Twenty Eight Thousand only) towards damages and in view of  installation of Power Line/ Tower across the land, the fertility and value of the Land are decreased and has  prayed for to award compensation of Rs.1,59,00,000/- (Rupees One Crore Fifty Nine Lakh only).</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>After service of summons, the KPTCL filed statement of objections. They pleaded that the respondents have paid the compensation towards diminution value of the land as per the order of the Deputy Commissioner dated 04.12.2018 to the tune of Rs.3,28,206/- (Rupees Three Lakh Twenty Eight Thousand Two Hundred and Six only) towards Corridor Area to the claimant as full and final settlement of compensation, wherein the claimant acknowledged the same without demur and as such there  is no need to award any further  compensation.  Accordingly, they prayed for the dismissal of the petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Heard the contentions urged on of the petitioners and perused the Writ papers with care. The principal ground on which the Court is asked to quash the impugned order is that the Trial Court has erroneously proceeded to award which is nothing but a double the additional amount of compensation.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Suffice it to note that on 04.12.2018, the Deputy Commissioner, after considering as to the erection of Lines of 220 KV DC Line from existing 220/66 KV Station, Hiriyur at Chitradurga Station and on the existing Corridor partly on Multi Circuit Line in between LILO Point of Guttur- Hiriyur Line to 220 KV Chitradurga Sub-Station, assessed the diminution value of the Land per Acre Rs.2,30,000/- (Rupees Two Lakh Thirty Thousand) towards  Corridor  Area.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>On 17.06.2019, the claimant received a sum of Rs.3,28,206/- (Rupees Three Lakh Twenty Eight Thousand Two Hundred and Six only) towards Corridor Area by way  of cheque dated:17.06.2019 and same has been acknowledged by the claimant. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>However, the Trial Court without noticing the said factual aspects, re-determines the compensation with regard to Corridor Area and awarded a sum of Rs.2,14,050/- (Rupees Two Lakh Fourteen Thousand and Fifty only) solely on the ground that the compensation awarded is towards crops.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In my view, the said reasoning and the finding is untenable since what is required to be considered is the diminution value of the land. The Deputy  Commissioner has considered the same and has rightly awarded compensation. If the order is sustained it amount double payment of compensation. I may venture to say that the Trial Court has failed to have regard to relevant considerations and disregarded relevant matters. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In my considered opinion, the order passed by the Trial Court is unsustainable in law. Resultantly, order of Certiorari is granted<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Accordingly, the Writ Petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7f99f4e0bdd610671d37a8c5f520677f.JPG', 'b44097cbccb72dc4ab023c6367380af2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-12', 1, '', '', '2022-09-10 23:21:58', '2022-09-12 09:22:51');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2175, 'Znlxcx7AtjlQeU4bsqKdw4NyP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Defendant cannot be placed exparte merely on process server report unless the court is satisfied that each one of the steps contemplated for service of notice is complied with. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Channaveerayya Vs Fakiravva.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Misc. Second Appeal 100057 of 2015 decided on 26 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ravi V Hosmani.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Brief facts as are relevant for disposal of\r\nthis appeal are that suit was filed by appellant\r\nseeking relief of declaration of his title and for\r\npermanent in junction restraining defendant from\r\ninterfering with his peaceful possession over suit\r\nproperties.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Upon service of summons, defendants did\r\nnot enter appearance and contest suit. Suit against\r\ndefendant no.3 was dismissed as abated while\r\nremaining defendants were placed ex-parte. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. On consideration, first appellate Court\r\nframed following points:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(1) Whether trial Court impugned\r\njudgment and decree is ex-parte\r\ndecree and same deserves to be set\r\naside? </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(2) Whether trial Court committed error\r\nholding the court notice issued to\r\nappellant-defendant no.5 as served\r\nand thereby placing ex-parte to her?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(3) What order? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. After summoning records and on perusal\r\nthereof, it held that service of notice upon\r\ndefendant no.5 was not effected and therefore\r\ndefendant no.5 was deprived of opportunity of\r\nparticipating in suit. In view of said finding without\r\nexpressing any opinion on point no.1, it remanded\r\nmatter back to trial Court with direction to trial\r\nCourt to provide opportunity to defendants to lead\r\nevidence and thereafter to dispose of suit in\r\naccordance with law. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. In view of above submission, substantial\r\nissue that arises for consideration in this appeal\r\nis:\r\n<i>“Whether there was proper service of\r\nnotice upon defendant no.5 and whether\r\nfirst appellate Court was justified in\r\nremanding matter back to trial Court?” <br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Records in this case reveal that on\r\nperusal of records, O.S.no.17/2004 though initially\r\nfiled and pending on file of I Additional Civil Judge\r\nand C.J.M., Dharwad stood transfer to Court of\r\nSenior Civil Judge, Navalgund (Itinerary Court) by\r\norder dated 13.11.2007. Thereafter, matter was\r\ntaken up on board on 22.11.2007 and Court <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">notices were ordered to be served on parties.\r\nService o f notice on plaintiff and other defendants\r\nis not in issue.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. Based on said report and since other\r\ndefendants were served and had not entered\r\nappearance, trial Court proceeded to place them\r\nex-parte and after considering evidence led by\r\nplaintiff, decreed suit. Rule 17 clearly mandates\r\nthat manner of service of summons.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. It shall firstly have to be on person to\r\nwhom it is addressed and if he is an authorized\r\nagent on such agent. The rule also provides for an\r\nalternative mode of affixture. But same is subject\r\nto process server submitting a report stating\r\ncircumstances under which he resorted to\r\naffixture, name and address of person who\r\nidentified house and in whose presence copy was\r\naffixed. Records do not contain any report of\r\nprocess server or name or signature of person who\r\nidentified house and in whose presence affixture\r\nwas effected. Necessity of mandating such\r\nrequirement cannot be lost to reason. Admittedly,\r\nthere is defect in service of summons upon\r\ndefendant no.5. Taking same into consideration,\r\nfirst appellate Court has rightly set aside judgment\r\nand decree passed by trial Court and remanded\r\nmatter back for providing opportunity to\r\ndefendants.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. While passing said judgment, first\r\nappellate Court also took note of fact that suit of\r\nplaintiff was abated against defendant no.3. In my\r\nopinion, remand would also aid plaintiff to take\r\nsteps against defendant no.3 and seek for proper\r\ndisposal of suit. Hence, no substantial issue arises\r\nfor consideration in this appeal. Impugned\r\njudgment passed by first appellate Court is fully\r\njustified.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. It is seen that proceedings originated in\r\nthe year 2004, they were transmitted to Court of\r\nSenior Civil Judge, Navalgund during year 2009. It\r\nwas decreed. Thereafter, defendant no.5 filed\r\nappeal which was initially dismissed on ground of\r\nlimitation. However, order was set aside in writ\r\npetition and thereafter first appellate Court\r\ndecided appeal on merits by passing impugned\r\njudgment. Appellant herein being plaintiff has thus\r\nlost many years in proceedings. Under\r\ncircumstances, I deem it appropriate to issue <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">directions to trial Court for expeditious conclusion\r\nof proceedings.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Appeal is dismissed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a517bf609447f234f6fe7efba3f99cb3.JPG', 'acf260fc7f99840eb8b41e2684ffde41.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-12', 1, '', '', '2022-09-10 23:45:37', '2022-09-12 16:06:01'),
(2176, '9zaOmZw9ankAXXtA0x90LYmcE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Administrator under Section 27A of the Societies Registration Act cannot be appointed on vague allegations of irregularities in conducting election. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Nadavara Sangha Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 101735 of 2022 decided on 17 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.I. Arun.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. Petitioner is a Society registered under the provisions\r\nof Karnataka Societies Registration Act, 1960 and it is for\r\nthe welfare of Nadavara Community. Any person above\r\nthe age of 18 years belonging to the Nadavara community\r\ncan become member of the petitioner-Society. The term of\r\noffice bearers of the petitioner-Society came to an end on\r\n23.12.2020. However, there was inordinate delay in\r\nconducting the election for new office bearers of the\r\nsociety. This gave rise to certain disputes between the\r\nmembers of the society and it culminated in some of the\r\nmembers approaching the respondent No.2. Respondent\r\nNo.2 gave a report in this regard to 1st respondent which\r\nwas challenged by the petitioner herein by way of writ </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petition No.101382/2021 in which the said report was set\r\naside reserving the liberty to any aggrieved person to\r\nmake fresh representation to the authorities in respect of\r\nconduct of petitioner-Society. In the meanwhile, election\r\nwas conducted to the petitioner-Society on 28.02.2021\r\nand new committee got elected. However, respondent\r\nNos.3 to 7 who are also the members of petitioner-Society\r\nwere not happy with the elections and on the allegation\r\nthat the election was not conducted in the manner known\r\nto law and the office bearers of the petitioner-Society with\r\nan ulterior motive of winning the election have enrolled\r\nnew members in violation of the law, approached\r\nrespondent No.1 for superseding the elected body and\r\nappoint an administrator. Respondent No.1 heard both\r\nrespondent Nos.3 to 7 and the petitioner-Society and by\r\nexercising the powers under Section 27A(1)(c) of\r\nKarnataka Societies Registration Act, 1960 has passed the\r\nimpugned order, wherein, the elected office bearers of\r\npetitioner-Society have been superseded and an </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">administrator has been appointed. Aggrieved by the same,\r\nthe instant writ petition is filed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. In the given facts and circumstances of the case, it is\r\nrequired for the first respondent to satisfy himself as to\r\nthe illegality committed in the election to the petitionerSociety and only thereafter, he can supersede the elected\r\nbody and appoint an administrator. The contentions of\r\nrespondent Nos.3 to 7 is that election to the petitioner Society are not conducted in the manner known to law and\r\nthat office bearers have been elected in contravention of\r\nthe provisions of the bye-laws and law of the land. To\r\ncome to such a conclusion, first respondent in his order\r\nhas to state what is the bye-law or the law of land that has\r\nbeen violated by petitioner-Society and what is the\r\nillegality in constitution or election of the present office\r\nbearers. The reason given by the first respondent in the\r\nimpugned order is that the term of the governing body of\r\npetitioner-Society came to an end on 23.12.2020 and after\r\nthat, the office bearers will only be care takers and they\r\nare not entitled to take any major decisions. However, the\r\nsaid observation is in contravention of bye-law 27 of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner-Society which permits the previous office\r\nbearers to function till new body is constituted. Based on\r\nthe erroneous conclusion that they cannot take any major\r\ndecision, he found fault with the manner in which election\r\nhas been conducted and enrollment of new members.\r\nThough, he has come to the conclusion that enrollment of\r\nmembers has taken place keeping in view of the election,\r\nit is not mentioned which provision of law has been\r\ncontravened. Further, the advocate appearing for the\r\nrespondent Nos.1 and 2 or respondent Nos.3 to 7 in the\r\ncourse of the argument are not able to point out what is\r\nerroneous in enrollment of the said new members. No\r\nother ground has been assigned in the impugned order for\r\nappointing of the administrator. However, the counsel\r\nappearing for respondent Nos.3 to 7 during the course of\r\narguments submitted that election as per bye-laws of\r\npetitioner-Society has to be conducted in annual general\r\nbody and the same has not been done in the instant case\r\nand if given an opportunity, they would establish the same </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">before the authorities. However, the same is disputed by\r\nthe petitioner contending that election has been conducted\r\nin the manner known to law. Whether the election is\r\nconducted in the general body or not as contemplated in\r\nthe bye-law of the petitioner-Society is a question of fact\r\nand cannot be gone into by this Court by exercising its\r\npowers under Article 226 of Constitution of India. Both the\r\npetitioner and respondent Nos.3 to 7 submits that if given\r\nan opportunity before first respondent, they would be able\r\nto establish their respective cases. This aspect has not\r\nbeen examined by the first respondent in his order.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8. For the aforementioned reasons, as there is no\r\njustifiable reason assigned by the first respondent in the\r\nimpugned order for superseding elected body of the\r\npetitioner-Society and appointing an administrator, the\r\nwrit petition deserves to be allowed. However, as the fact\r\npertaining as to whether the election has been conducted\r\nin accordance with the bye-law of petitioner-Society has\r\nnot been examined by the first respondent, liberty has to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be reserved to the parties to approach the first respondent\r\nin this regard. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Impugned order bearing No.SA.E/36/\r\nCS.R/2021 under Section 27-A of the\r\nKarnataka Societies Registration Act, 1960,\r\ndated 19.04.2022 by respondent No.1 vide\r\nAnnexure-V to the writ petition is hereby set\r\naside.\r\n Respondent Nos.3 to 7 are given an\r\nopportunity to approach respondent No.1 if\r\nthey are so advised to redress their grievances.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> No orders as to cost.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> Pending IAs are disposed of. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5de3e0cc7d8e0b7ec05e17222ddb14f1.JPG', '6a54a42fbe2c08e0b84a63945021d10f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-12', 1, '', '', '2022-09-11 00:30:49', '2022-09-12 13:15:20'),
(2177, 'PSR1baDjD6CKoRU4yYCdNmLMd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'President of a Gram Panchayat has no power under the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 to cancel khata registered in favour of a person. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Putta Thayamma and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 11764 of 2021 decided on 1 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The katha registered in favour of the petitioners in respect of the subject properties by the 4th respondent - Gram Panchayat was challenged by the 5th respondent by filing an appeal under Section 237 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (for short `Act\') before the 2nd respondent. The 2nd respondent by order  dated  6.3.2021 directed the 4th respondent to cancel the katha registered in favour of the petitioners in respect of the subject properties, against which, the petitioners have filed this petition.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5. Against the order passed by the Gram Panchayat registering the katha in favour of the petitioners, a remedy of appeal is provided before the Executive Officer, Taluk Panchayat as specified under Section 269 of the Act.  Section 237 of the Act specifies that the President of the Gram Panchayath can suspend the execution of unlawful order or resolution, but however, the power is not vested with the President of the Panchayath to cancel the katha registered in favour of the petitioners. Hence, the impugned order passed by the 2nd respondent is one without authority of law</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i) Writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'eb82f01e71932fad0146f9f725d49c81.jpeg', '8ac0205a96a8411d74dd658fbaac81d3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-13', 1, '', '', '2022-09-12 15:41:11', '2022-09-13 13:00:10'),
(2178, 'KooLWSvq6kyoJEmAcbvCpjHmq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\"The right to dignity and fair treatment under Article 21 of the Constitution is not only available to a living man but also to his body after his death\". Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mohammad Latifef Magrey Vs The Union Territory of Jammu and Kashmir and other.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6544 of 2022 decided on 12 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Surya Kant and Justice J.B. Pardiwala.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. It appears from the materials on record that on 15.11.2021, there was an encounter between the militants and police at the Hyderpora area of Budgam in Kashmir. Four militants were shot dead including the son of the appellant herein. In connection with the said incident, a First Information Report No. 193/2021 was registered at the Saddar Police Station for the offences punishable under Sections 307/120­B IPC, 7/27 of the Arms Act and 16, 18, 20 resply of the ULA (P) Act. During the course of the investigation, the Investigating Officer recovered four bullet ridden unidentified dead bodies at the site of the encounter. The dead bodies were shifted to the Police Hospital at Srinagar for the medico­legal formalities. After conducting the post­mortem etc., the dead bodies were identified as that of a foreign terrorist viz. Bilal Bhai @ Hyder @ Saqlain R/O Pakistan, Aamir Latief Magrey S/O Mohammad Latief Magrey R/O Seeripora Tehsil Gool Ramban, Altaf Ahmad Bhat S/O Abdul Rehman Bhat R/O Old Barzulla Srinagar and Dr. Mudasir Gull S/O Ghulam Mohammad Rather R/O Parraypora Srinagar. All the four dead bodies were shifted to the Handwara Zachaldara for burial. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. The material on record further reveals that the bodies of the two out of the four persons killed in the encounter were later exhumed and handed over to their relatives for performing their last rites at the place of their choice. The bodies of the other two persons killed in the encounter i.e. Bilal Bhai @ Hyder and the son of the appellant herein buried through the Auqaf Committee, Wadder Payeen were not disinterred and handed over to their respective family members. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. It appears that so far as the deceased, namely, Bilal Bhai, a resident of Pakistan is concerned, nobody claimed his body nor was there any demand for handing over of the dead body from any quarter. However, it is the case of the appellant herein that so far as the dead body of his son Amir is concerned, he had approached various authorities with a request to hand over the body but none listened to him and ultimately the body of his son (deceased) was buried at the Wadder Payeen Graveyard. It is his case that he was informed by the Police Station at Gool on 16.11.2021 that his son Amir had been killed in an encounter in Kashmir and that he should proceed to Kashmir to identify the body. On 16.11.2021, the appellant along with his family members reached the Police Station at Saddar, where he was told that his son Amir Magrey was a militant and was killed along with three other associates at the Hyderpora and the dead body of Amir had been buried. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>26. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the following questions of law fall for the consideration of this Court: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>a. Whether the appellant (father of the deceased) can pray for exhumation of the dead body of his son from the graveyard asserting that it is his fundamental right as enshrined under Article 21 of the Constitution to perform the last rites of his slained son?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>b. Will it be in the fitness of the things, more particularly, having regard to the fact that the body is now buried past more than eight months to order, exhumation so as to enable the appellant and his family members to perform the rituals as followed in Islam?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>c. Assuming for a moment that it is the fundamental right of the father under Article 21 of the Constitution to perform the last rites and rituals of his son with dignity before being buried in a graveyard, should this Court in exercise of its jurisdiction under Article 136 (1) of the Constitution disturb the impugned order passed by the High Court at the risk & peril of public order, health etc. and grant the relief of exhumation after almost nine months?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>d. Whether the High Court in appeal committed any substantial error in passing the impugned order?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>30. In the instant case, after the deceased was killed in the Hyderpora encounter, the authorities performed the last rites of the deceased with all dignity with the aid of the Auqaf Committee as per the religious beliefs and practices and buried him in J&K on 15.11.2021.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>50. Thus, the principles of law discernible from the aforesaid are that unless, it is shown that exceptional and special circumstances exist; that substantial and grave injustice has been done and the case and question presents features of sufficient gravity to warrant a review of the decision appealed against, this Court would not exercise its overriding powers under Article 136 (1) of the Constitution. The wide discretionary power with which this Court is invested under Article 136 is to be exercised sparingly and in exceptional cases only. Keeping these principles in mind, we need to decide whether the relief prayed for by the appellant should be granted or not?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">54. It goes without saying that the right to live a dignified life as enshrined under Article 21 of the Constitution is not only available to a living person but also to the “dead”. Even a dead person has the right of treatment to his body with respect and dignity which he would have deserved had he been alive, subject to his tradition, culture and religion which he professed. These rights are not only for the deceased but, his family members also have a right to perform the last rites in accordance with the religious traditions. We are of the view that it would have been appropriate and in fitness of things to hand over the dead body of the deceased to the family members, more particularly, when a fervent request was made for the same. It is of course true that for any compelling reasons or circumstances or issues relating to public order etc. more particularly in cases of encounter with the militants the agency concerned may decline to part with the body. These are all very sensitive matters involving security of nation and as far as possible the court should not interfere unless substantial & grave injustice has been done. Although, for some reason or the other, the body of the deceased was not handed over to the family members yet the same was buried with respect & dignity, with the help of the Auqaf Committee at the Wadder Payeen Graveyard. We are convinced of one thing that the body was buried with dignity. There is nothing on record to indicate that the dead body was dealt with in any manner insulting or hurting the religious feelings of the family members. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>56. After a body has been buried, it is considered to be in the custody of the law; therefore, disinterment is not a matter of right. The disturbance or removal of an interred body is subject to the control and direction of the court. The law does not favour disinterment, based on the public policy that the sanctity of the grave should be maintained. Once buried, a body should not be disturbed. A court will not ordinarily order or permit a body to be disinterred unless there is a strong showing of necessity that disinterment is within the interests of justice. Each case is individually decided, based on its own particular facts and circumstances. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>57. The respondents have stated on oath that the body of the deceased was buried with all honour. The body was first washed and thereafter wrapped in a fresh white cloth. The prayers were also performed at the time of the burial. There is nothing to indicate that the deceased was not given a decent burial as enshrined under Article 21 of the Constitution. The right to dignity and fair treatment under Article 21 of the Constitution is not only available to a living man but also to his body after his death. We, as a court of law, respect the emotions and sentiments expressed by the appellant as the father of the deceased. However, the court of law should not decide the rights of the parties considering their sentiments. The court of law has to decide the matter in accordance with law, more particularly, keeping in mind the doctrine of Rule of Law.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>58. We take notice of the fact that India has no legislation relating to exhumation except Section 176(3) of the CrPC. As noticed by the Madras High Court in the case of Anandhi Simon (supra), very few countries are having a legislation in regard to exhumation. One such legislation available is in Ireland under Section 46 of the Local Government (Sanitary Services) Act, 1948 as amended by Section 4 (2) and the Second Schedule of the Local Government Act, 1994. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">60. We are of the view that the relief granted by the High Court as contained in para 21 of the impugned judgment can be termed as just, proper and equitable. We direct the respondents to comply with the directions issued by the High Court, as contained in para 21 of the impugned judgment and order. </b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">61. In the result, this appeal fails and is hereby dismissed with no order as to costs. </b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">62. Pending application, if any, also stands disposed of.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c83ff1123c8a62c2b414b38efe850395.png', 'ec2e3fcb21083140569fe353ea29d454.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-13', 1, '', '', '2022-09-12 22:07:08', '2022-09-13 06:46:51'),
(2179, 'idFWBqpZpVnkCNsDw3oUEqrGC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Ossification Test at an advanced age cannot be applied to determine the age for the purposes of Juvenile Justice (Care and Protection of Children) Act, 2000. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vinod Katara Vs State of Uttar Pradesh.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition (Criminal) 121 of 2022 decided on 12 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dinesh Maheshwari and Justice J.B. Pardiwala.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. The facts giving rise to this litigation may be summarized as under</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(a) The writ applicant along with other co­accused persons was put to trial for the offence punishable under Section 302 r/w 34 of the IPC;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(b) The 5th Additional Sessions Judge, Agra in the sessions trial No. 535 of 1983 arising from the case crime no. 126 of 1982 registered with the Fatehpur Sikri District, Agra held the writ applicant herein and the co­accused persons guilty of the offence of murder and sentenced them to life imprisonment;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. It appears that sometime later, the writ applicant was in a position to obtain a document in the form of Family Register dated 02.03.2021 issued under the U.P. Panchayat Raj (Maintenance of Family Registers) Rules, 1970. In the Family Register certificate, the year of birth of the writ applicant herein is shown as 1968. If 1968 is the correct birth year of the writ applicant herein, then in 1982 he was about 14 years of age.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. In such circumstances referred to above, the writ applicant is here before this Court. He claims that as he was a juvenile on the date of the commission of the alleged offence sometime in the year 1982, he could not have been put to trial along with other coaccused and should have been dealt with under the provisions of the Juvenile Justice Act as prevailing at the relevant point of time. It is the prayer of the writ applicant that the respondent State be directed to get the claim of the writ applicant in regard to the juvenility verified through the concerned Sessions Court or the Juvenile Justice Board.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is that whether we should ask the Sessions Court to examine the authenticity and genuineness of the documents sought to be relied upon by the writ applicant in support of his plea of being a juvenile on the date of the commission of the alleged offence in the year 1982 and also subject the convict to further ossification test?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18. The first and the foremost issue that arises for our consideration in this writ petition is in regard to the applicability of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, “the 2000 Act”). </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>25. It is thus well settled that in terms of Section 20 of the 2000 Act, in all cases where the accused was above 16 years but below 18 years of age on the date of occurrence, the proceedings pending in the Court would continue and be taken to the logical end subject to an exception that upon finding the juvenile to be guilty, the Court would not pass an order of sentence against him but the juvenile would be referred to the Board for appropriate orders under the 2000 Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>26. Thus, in view of the aforesaid discussion, we now proceed to consider the matter further keeping in view the 2000 Act</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">32. Sub­clause (3) of the aforesaid Rule clearly mandates that while conducting an inquiry about the juvenility of an accused, the Juvenile Justice Board would seek evidence by obtaining the matriculation or equivalent certificates and in the absence whereof the date of birth certificate from the school first attended and in absence whereof the birth certificate given by a corporation or a Municipal authority or a Panchayat. It is made clear by sub­clause (b) that only in the absence of the aforesaid three documents, medical information would be sought from a duly constituted Medical Board which will declare the age of the juvenile or child. Thus, it is only in the absence of the aforesaid documents that the Juvenile Justice Board could have asked for medical information/ossification test.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>33. The 2000 Act stands repealed by the 2015 Act. The procedure for determining the age is now part of Section 94 of the 2015 Act which was earlier provided under the abovementioned Rule 12 of the Rules.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>39. Thus, Section 7A(1) of the 2000 Act and the proviso thereto provided that a claim of juvenility might be raised before any court and it shall be recognized at any stage, even after the final disposal of the case, and such claim shall be determined in terms of the provisions contained in the 2000 Act and the Rules made thereunder, even if the juvenile has ceased to be so, on or before the date of commencement of the 2000 Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>40. Sub­section (2) of Section 7A mandates that if the Court finds a person to be a juvenile on the date of the commission of offence under sub­section (1), it shall forward the juvenile to the Juvenile Justice Board for passing an appropriate order, and the sentence, if any, passed by a Court shall be deemed to have no effect. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>43. In view of Section 7A of the 2000 Act referred to hereinabove, applicable to the writ applicant herein, the plea of juvenility could be raised in any court, at any stage even after the final disposal of the Special Leave Petition under Article 136 of the Constitution. In the case of the writ applicant herein, his Special Leave Petition had also been dismissed by this Court. However, this Court is still obliged to consider the plea of juvenility taken by the writ applicant and grant him appropriate relief. The fact that the 2000 Act has later been replaced by the 2015 Act would make no difference. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>63. We are conscious of the fact that in the case on hand the convict was subjected to medical examination after being referred to the Medical Board. However, the report on record does not inspire much confidence. Over and above the same, the decision in the case of Ram Vijay Singh (supra) makes it very clear that in the absence of a reliable and trustworthy medical evidence to find out the age of the appellant herein, the ossification test conducted in the year 2021 when the appellant was above 50 years of age cannot be conclusive to declare him as a juvenile on the date of the incident. This Court observed that when a person is around 18 years of age, the ossification test can be said to be relevant for determining the approximate age of a person in conflict with law. However, when the person is around 40­ 55 years of age, the structure of bones cannot be helpful in determining the age. In such circumstances, it will be a matter of debate as to what extent the new ossification test report that may come on record can be relied upon and to what extent the same would be helpful to the appellant herein.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>64. Despite all the odds against the writ applicant, we would still like to look into the matter in the larger interest of justice. It will be in fitness of things if the writ applicant convict is once again subjected to the ossification test at the Civil Hospital, Allahabad or any other latest medical age determination test and such test shall be carried out by a team of three doctors, one of whom should be the head of the Department of Radiology. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>65. In view of the aforesaid, we issue the following directions:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i) We direct the Sessions Court, Agra to examine the claim of the writ applicant to juvenility in regard with law within one month from the date of communication of this order;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii) The concerned Sessions Court shall also examine the authenticity and genuineness of the Family Register sought to be relied upon by writ applicant convict considering that the document does not appear to be contemporaneous. This document assumes importance, more particularly in the light of the fact that the ossification test report may not be absolutely helpful in determining the exact age of the writ applicant on the date of incident. If the Family Register on record is ultimately found to be authentic and genuine, then we may not have to fall upon the ossification test report. In such circumstances, the Presiding Officer concerned shall pay adequate attention towards this document and try to ascertain the authenticity and genuineness of the same. If need be, the statements of the persons concerned i.e. from the concerned government department may also be recorded;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>66. Notify this matter after a period of four weeks along with the report that may be received from the Sessions Court, Agra. The final order shall be passed after perusal of the report upon receipt from the Sessions Court, Agra. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '807c48d251f60e52f86cc775de002296.png', 'db9fdc0081347db8e929a3c78a9aaabe.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-13', 1, '', '', '2022-09-13 00:15:19', '2022-09-13 10:09:33');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2182, '1L4O35o2oAFcopKPfsgQUXh45', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Right to administer under Article 30(1) accorded to a minority-run aided educational institution does not extend to its non-minority students. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>St Stephens College Vs University of Delhi and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WP (C) 8814 of 2022 decided on 12 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The facts leading to the instant petitions have been stated as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>a) On 09.06.1980, a circular had been issued by Respondent No.1\r\ndirecting all its Affiliated/Constituent colleges to admit students\r\nfor UG courses solely on the basis of the marks obtained in the\r\nqualifying examination. Aggrieved by this circular, a writ\r\npetition under Article 32 of the Constitution had been filed by\r\nthe Petitioner-College stating that, being a minority-run\r\ninstitution, it was entitled under Article 30(1) of the Constitution\r\nto devise its own admission procedure.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>b) In 1992, by way of a judgement in St. Stephen’s College v.\r\nUniversity of Delhi, (1992) 1 SCC 558, a 5-Judge Constitution\r\nBench of the Supreme Court held that, being a minority-run\r\ninstitution, not only would the circulars of Respondent No.1 not\r\nbe applicable to the Petitioner-College, but the\r\nPetitioner-College would be entitled to a free run when it comes <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to admitting students in order to maintain the minority character\r\nof the institution. Accordingly, the Petitioner-College’s unique\r\nprocedure of conducting an interview for both General category\r\nand minority category after shortlisting candidates who had\r\nachieved the cut-off marks in the qualifying examination was\r\nheld to be valid.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">c) It is stated that due to the different evaluation methods of various\r\nState Boards, a decision was taken by Respondent No.1 to\r\nconduct a single umbrella examination, either formulated by\r\nRespondent No.1 or by an independent agency, at the national\r\nlevel to ascertain the merit of the candidates. Accordingly, vide\r\nNotification dated 20.12.2021, Respondent No.1 stated that\r\nadmissions in UG courses for the Academic Session 2022-2023\r\nand onwards, would be made through the Central University\r\nCommon Entrance Test (CUCET) or Delhi University Common\r\nEntrance Test (DUCET). Thereafter, by way of Public Notice\r\ndated 21.03.2022, Respondent No.2 announced the details of the\r\nCUET which was to be conducted by the National Testing\r\nAgency (NTA).</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">d) The Petitioner-College, on being made aware of CUET,\r\ncommunicated to Respondent No.1, via email dated 21.03.2022,\r\nthat while CUET was an acceptable procedure for ascertaining\r\nmerit, the Petitioner-College being a minority Christian\r\ninstitution, would be entitled to continue ?with its\r\ntime-honoured and proven admission process involving an\r\ninterview to select candidates?. Further, the email noted that the\r\ninterview process would be offered with a weightage of 15%, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and the final selection to the College would be based on both\r\nCUET (85%) and the interview (15%).</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. At the outset, this Court observes that three-broad questions arise for\r\nconsideration in the instant matter:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\ni. Whether the right to administer under Article 30(1)\r\naccorded to a minority-run aided educational institution extends\r\nto its non-minority students?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ii. Whether the admission policies of Respondent No.1, i.e.\r\nthe University of Delhi, pertaining to the matter at hand, would <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be applicable to the Petitioner-College, being a minority\r\ninstitution?\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">iii. Whether a minority-run institution under Article 30 has\r\nthe right to sub-classify the reservation accorded to the minority\r\ncategory?</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32. In order for a minority community to effectively conserve its language,\r\nscript or culture by and through educational institutions, a necessary\r\nconcomitant would be its right to establish and maintain educational\r\ninstitutions of its choice which is conferred on all minorities by virtue of\r\nArticle 30(1). The object of conferring the special protection by way of a right\r\non minorities under Article 30 is to ensure that there will be equality between\r\nthe majority and the minorities. This right, however, is subject to Article\r\n29(2) which provides that no citizen shall be denied admission into any\r\neducational institution maintained by the State or receiving aid out of State\r\nfunds on grounds only of religion, race, caste, language or any of them. These\r\ntwo fundamental rights have been reconciled by the Supreme Court by noting\r\nthat an aided minority educational institution would not lose its minority\r\ncharacter if it admits non-minority students, and therefore, would manage to\r\npreserve both Article 29(2) and Article 30(1). <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>38. A perusal of the abovementioned paragraphs demonstrate that the\r\nApex Court has noticed that one of the compelling reasons as to why the\r\nPetitioner-College had been permitted to devise their own admission\r\nprogramme was that numerous applications were received from students who\r\ncame from various State Boards as well as the Central Board of Secondary\r\nEducation (CBSE). The process of conducting an interview had, therefore,\r\nbeen allowed on the basis of the fact that merit could not be adjudged solely\r\non the basis of the marks obtained in the qualifying examination.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">41. In P.A. Inamdar (supra), it was reiterated that merely because Article\r\n30(1) has been enacted, minority educational institutions would not become\r\nimmune from the operation of regulatory measures. Moreover, once aided,\r\nthe autonomy conferred by the protection of Article 30(1) on the minority </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">educational institution would be diluted as provisions of Article 29(2) are\r\nattracted.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>45. Flowing from the aforementioned landmark judgements on the scope\r\nand ambit of Article 30(1), the understanding that is developed is that Article\r\n30, though couched in absolute terms, is subject to reasonable regulations by\r\nthe State. However, such regulations cannot be proposed to be for the\r\nbetterment of society at large or in the interest of the State, and must first and\r\nforemost be for the purposes of ensuring that the standards of excellence of\r\nthe minority institution are maintained and that the interests of the minority\r\ncommunity are advanced. Furthermore, the degree of interference that can be\r\nexercised by the State depends on the basic foundation of an institution. For\r\ninstance, an unaided minority institution has a greater leeway in devising its\r\nadministrative processes than an aided minority institution. Moreover, an\r\nunaided professional minority institution would have lesser liberty to follow\r\nits own rules and regulations than an unaided minority institution imparting\r\nhigher secondary education. An educational institution seeking recognition or <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">affiliation can also not claim total immunity from regulations of legislature or\r\nthe university. In all these circumstances, the one thread that runs through is\r\nthat the State’s ability to institute regulations circumscribing the right to\r\nadminister of a minority institution under Article 30(1) is maintained, but the\r\nvalidity of the same depends on the purpose of the said regulations.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">46. In this regard, the first question that arises is whether Article 30(1)\r\nsubsumes the right of an aided minority institution to prescribe a procedure\r\nfor admission for its non-minority students. To answer this question, it is\r\nnecessary to discuss the constitutional intent of Article 30, which is to bring\r\nminorities at par or equality with majority as well as to give them the right to\r\nestablish, administer and run minority educational institutions In Sindhi\r\nEducation Society v. Govt. (NCT of Delhi), (2010) 8 SCC 49, the Supreme\r\nCourt was discussing whether the Delhi School Education Act, 1973, and the\r\nRules framed thereunder, were intended to make inroads into the character\r\nand privileges of the minority community.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>47. In the aforementioned Judgement, it was observed that the Court is\r\nduty-bound to advance the cause or the purpose for which the law is\r\nimplemented and, therefore, these laws must be construed purposively. In the\r\ninstant case, the object underlying Article 30(1) is to see the desire of\r\nminorities being fulfilled that their children should be brought up properly\r\nand efficiently, and that they should acquire eligibility for higher university\r\neducation and go out in the world fully equipped with such intellectual\r\nattainments that will make them fit for entering public services, educational\r\ninstitutions imparting higher instructions, including general secular\r\neducation. In this context, the dual intent that is sought to be achieved by\r\nArticle 30(1) in the interest of minorities are: (i) to enable such minority to\r\nconserve its religion and language, and (ii) to give a thorough, good, general\r\neducation to children belonging to such a minority [Refer to In Re Kerala\r\nEducation Bill (supra)]</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>49. A reading of the foregoing judicial pronouncements holding the field\r\nalso demonstrates that no categorical judicial assertion has been rendered\r\nwith regard to a minority institution’s right to administer an institution of its\r\nchoice under Article 30(1) being extended to its non-minority members. In\r\nthe absence of such an assertion and from a plain reading of Article 30(1), it\r\ncan only be discerned that the right enumerated therein did not encompass the\r\nnon-minority community.The golden rule of interpretation clearly denotes\r\nthat words must be read in its ordinary, natural and grammatical meaning.\r\nAssuming that the non-minority community would also be subjected to a\r\nspecialised process of admission would entail reading into the constitutional\r\nprovision an aspect that does not exist. This line of interpretation can also be\r\nculled out from the aforesaid Judgements which have set conditions for the\r\nkind of State regulations that can be effectuated upon a minority educational\r\ninstitution, and how the same may only be permissible if they are in\r\nfurtherance of the minority interest, not non-minority interest, and conducive\r\nto those who resort to it.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>51. Consequently, this Court is of the opinion that while the\r\nPetitioner-College retains its authority to conduct interviews in addition to the\r\nCUET for the admission of students belonging to the minority community, it\r\ncannot devise a policy that forces the non-minority community to undergo an\r\ninterview as well. Therefore, the right of the Petitioner-College to conduct\r\ninterviews and accord to them 15% weightage for the purposes of admitting\r\nstudents does not extend to non-minority students, and solely pertains to its\r\nminority students.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>52. Having answered the first question, it becomes important to ascertain\r\nthe second question, i.e. whether the admission policy of Respondent No.1, as\r\nstated in its Bulletin of Information for Undergraduate Admissions 2022,\r\nwould be applicable to the Petitioner-College or would it pierce its minority\r\ncharacter by impinging upon its right to administer under Article 30(1).</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>57. This Court does not find weight in the learned Senior Counsel’s\r\nsubmissions. The reason why CUET was imposed was because of the varying\r\nstandards of evaluation and teaching of different State Boards in allocation of\r\nmarks that placed students of one Board at a disadvantage than the other.\r\nCUET was meant to be a method to standardise and uniformalise the process\r\nof evaluation by providing all applicants a level playground for proving their\r\nmerit. It was in the context of varying standards of different State Boards and\r\nin the absence of reservation for the minority community that the Supreme\r\nCourt had noted in its Para 65 of St. Stephen’s College v. University of Delhi\r\n(supra) that there were compelling reasons for the Petitioner-College to\r\nfollow its own admission programme. There is reason in the submissions of\r\nMr. Arun Bhardwaj and both the learned ASGs that now that CUET has been\r\nimplemented which takes away the aspect of having to select students on the\r\nbasis of marks obtained in qualifying examinations of different institutions\r\nwith different standards, the basis of the Judgement also goes away and\r\ntherefore, no compelling reason exists anymore for an interview to be\r\nconducted.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>60. In the instant case, with the advent of CUET, it cannot be said that inter\r\nse merit will not be observed. The concept of merit itself is contentious and\r\nconvoluted, and is premised on the philosophy that “we get what we deserve”.\r\nMichael Sandel, an American political philosopher, in his book titled, “The\r\nTyranny of Merit: What’s Become of the Common Good?”, has observed\r\nhow embedded in the principle of merit lies the dark side of the promise of\r\nmastery and self-making, which fails to take into consideration the\r\nsurrounding factors, such as generational wealth, social capital, access to\r\nbetter educational resources, etc. When we perceive merit as a standalone\r\nconcept premised on an individual’s capabilities, we fail to delve into the\r\nbackground of the individual which goes beyond merit and choice into the\r\nrealm of luck and chance. The CUET implemented by the Respondents is an\r\nattempt to level the playing field and remove aberrations that have arisen due\r\nto the varying standards of evaluation of different State Boards. In view of\r\nthis, this Court is of the opinion that the conduct of an interview over and\r\nabove the CUET has the potential of introducing subjectivity and bias into the\r\nadmission process, thereby eroding the very purpose for which CUET is\r\nbeing brought into play. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>62. Therefore, even though there exist limitations to the regulations of the\r\nState when it comes to interfering in the admission process instituted by the\r\nPetitioner-College under its fundamental right as per Article 30(1) for the\r\nminority community, it emerges before this Court that the Respondent No.1 is\r\nwell within its right to formulate policies regulating the right of the\r\nPetitioner-College, which is an aided educational institution, to admit\r\nstudents if it is of the opinion that the admission policies of the\r\nPetitioner-College may potentially lead to maladministration and lower the\r\nstandard of excellence of the institution. Accordingly, the policies of\r\nRespondent No.1 that is under consideration in the instant matter do not\r\ntraverse beyond reasonability and do not impinge upon the rights of the\r\nPetitioner-College under Article 30(1).</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>66. This Court is not in agreement with the rationale expounded in the\r\ndecision of the Kerala High Court. The judgements that have been\r\npropounded on this topic demonstrate that the minority community\r\ninstitutions have a right to establish and administer institutions of their choice <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as per Article 30(1). Though this fundamental right under Article 30 is not\r\nabsolute and there are limitations that can be implemented by the State, the\r\nsaid limitations are only for the furtherance of the interest of minority\r\ncommunities and to prevent any instances of maladministration. Once that\r\nright has been given to a minority institution, then the seats which are to be\r\nfilled in by the minority students cannot be curbed/restricted by directing the\r\ninstitutions as to how to fill those seats, provided the method adopted by the\r\ninstitution is fair and transparent. In fact, the very purpose of Article 30(1)\r\nwould be defeated if it is done so. Therefore, any exercise undertaken by the\r\nState that would whittle down the protection that is granted to a minority\r\ncommunity can only be said to be detrimental to the community as a whole\r\nand, therefore, cannot be sustained. The contention of Mr. Sibal that any\r\ninterference in the right of admission to the minority candidates would\r\nseriously impede the \"freedom of choice\" granted to the various minority\r\ninstitutions under Article 30 which would, in the opinion of this Court,\r\ninclude the right to give preference/reservation to members of the religious\r\ndenomination who have founded and are administering the educational\r\ninstitution for the purpose of admission, is, therefore, accepted.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>67. Flowing from the above, this Court respectfully disagrees with the\r\ncontention of the learned ASG that a single merit list for the candidates\r\nbelonging to the Christian community, regardless of any\r\ndenominations/sub-sects/sub-categories within the Christian minority\r\ncommunity must be given. Any such protection would fall foul of the judicial\r\npronouncements on the instant subject and would not be within the four\r\ncorners of reasonableness and would not be furthering the right of the\r\nminority community itself as it would alter the right of a minority institution\r\nunder Article 30(1).<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>68. In view of the above, this Court has arrived at the following\r\nconclusions:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\ni. The fundamental right under Article 30(1) accorded to a minority\r\ninstitution cannot be extended to non-minority members.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ii. Article 30(1) is not absolute and the State has the right to formulate\r\nregulations concerning the administration of a minority institution\r\nto the extent that it is for the furtherance of the interest of the\r\nminority community and is in a bid to prevent maladministration of\r\nthe minority institution. Aided minority educational institutions that\r\nare affiliated with a University must follow the norms and\r\nprocedure of the said University.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>iii. Protection under Article 30(1) can be extended to the extent that it\r\nallows a minority institution to sub-classify the reservation\r\naccorded to the minority community.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>70. Accordingly, the writ petitions are partly allowed and disposed of,\r\nalong with the pending applications, if any.</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ac44761a8e4f181e13c70c554fdc58ee.png', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-14', 1, '', '', '2022-09-13 19:08:16', '2022-09-14 06:26:19'),
(2183, '0V92jtKEIg6MVcMf1bOVqOVpF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Occupancy rights cannot be claimed or granted under the Karnataka Land Reforms Act in respect of garden land (bagayat land). Karnataka High Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Anitha Valleesh and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 13663 of 2012 decided on 22 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice R Devdas.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">Sri.Rachaiah S/o Madaiah filed an application in Form\r\nNo.7 seeking grant of occupancy rights in respect of 39\r\nguntas of land in Sy.Nos.15/1, 2 and 3, Sy.Nos.16 and\r\n18/1 situated at Nanjanagudu Village, Nanjanagudu Taluk.\r\nThe Land Tribunal had passed an order dated 22.07.1976\r\nand this Court by order dated 15.04.1985 set aside the\r\norder of the Land Tribunal and remanded the matter back\r\nto the Land Tribunal. The Land Tribunal on </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reconsideration, passed an order dated 24.12.1993\r\nreiterating its earlier order granting occupancy rights to\r\nthe applicant. This was once again challenged by the\r\ndaughter of the original owner viz., Smt.H.R.Padma D/o\r\nSri.Ramachandra Rao before this Court in\r\nW.P.No.7878/1994. This Court by order dated\r\n03.08.1999, once again set aside the order of the Land\r\nTribunal and remanded the matter back to the Land\r\nTribunal while specifically directed that the Land Tribunal\r\nshould record statements of each witnesses separately and\r\nalso receive documentary evidence from the parties. The\r\nLand Tribunal was directed to ignore the statements\r\nrecorded by it earlier on 15.04.1985. The Land Tribunal\r\nwas directed to frame a preliminary issue as to the nature\r\nof the land as directed by this Court even in the earlier\r\nround of litigation. The impugned order dated 19.10.2011\r\nhas passed by the Land Tribunal consequent to the order\r\nof remand passed on 03.08.1999.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. Having heard the learned counsel for the\r\npetitioner, learned counsel for the contesting respondents, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the learned High Court Government Pleader and on\r\nperusing the petition papers, this Court finds that on two\r\nearlier occasions this Court had specifically remanded the\r\nmatter back to the Land Tribunal to give its finding on the\r\nnature of the land, since it was contended at the hands of\r\nthe land owner that the land in question are garden land\r\n(bagayat land) and garden land are excluded from the\r\npurview of Karnataka Land Reforms Act. This Court finds\r\nthat although the directions given by this Court was\r\nnoticed by the Land Tribunal, nevertheless no finding has\r\nbeen given by the Land Tribunal in this regard.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. In the case of Racha Naika /vs./ State of\r\nKarnataka - ILR 1992 KAR 2930, which was noticed by\r\nthe Land Tribunal, this Court has held that where the\r\ngarden land (though agricultural lands) was agreed to be\r\ngiven to the person for gathering the fruits on payment to\r\nthe owner, the very possession of such land cannot make\r\nit an agricultural lease, and the person cannot be treated\r\nas deemed tenant. It was held that under Section 2 (34),\r\na tenant means an agriculturist who cultivates personally\r\nthe land he holds on lease from a landlord and includes a\r\nperson who is deemed to be a tenant under Section 4. In\r\nthe explanation to Section 2(34), it was made clear that a\r\nperson who takes up a contract to cut grass, or to gather\r\nfruits or other produce of any land, shall not on that\r\naccount only be deemed to be a tenant.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 6. Moreover, this Court finds that Land Tribunal\r\nhad indeed come to a conclusion that the original applicant <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and his legal heirs belong to Nayana Kshatriya community\r\nand by profession they were carrying on business as\r\ntonsurer (barber) at Shree Sreekanteswara Temple,\r\nNanjangud, in terms of the trade of the community and\r\ntherefore it was one more reason for the Land Tribunal to\r\nreject the application seeking grant of occupancy rights. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. Having regard to these two important aspects\r\nand the finding of the Land Tribunal, this Court is of the\r\nconsidered opinion that the impugned order passed by the\r\nLand Tribunal is contrary to its own findings. On the basis\r\nof the evidence on record, the Tribunal was required to\r\nreject the application. On the contrary, the impugned\r\norder has been passed by the Land Tribunal granting\r\noccupancy rights, although the finding of the Land Tribunal\r\ndo not support the conclusions drawn by the Tribunal.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 8. For the reasons stated above, this Court is of\r\nthe considered opinion that the impugned order passed by\r\nthe Land Tribunal cannot be sustained. Consequently, this\r\nCourt proceeds to pass the following</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n(i) The writ petition is allowed. </b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'bfc2fa941cd128d74895feca57f2abe5.JPG', 'a4f12cfeac88cc1c955fbb7ed8e5f15a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-14', 1, '', '', '2022-09-13 19:34:37', '2022-09-14 12:22:49'),
(2184, 'oG7lWotQ6kfAjQfiaAEwQSCgH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Award of compensation in land acquisition is not as a matter of right and the same is dependent on the persons establishing their title over the property. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shivanna Vs Bangalore Development Authority and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 11276 of 2014 decided on 26 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice E.S. Indiresh</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In these writ petitions, petitioners are seeking allotment\r\nof alternative land by the respondent-BDA and as such, the\r\npetitioners seeking writ of mandamus directing the respondentBDA to allot 100% of the land in lieu of utilization of their land,\r\nin terms of the order dated 26th July, 2012 in Writ petition\r\nNo.45695 of 2011.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. In the light of the submission made by the learned\r\ncounsel appearing for the parties, the relevant question to be\r\nanswered in this writ petitions is, whether the petitioners are\r\nentitled for allotment of developed land equivalent to the area\r\nof land lost by them?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 7. In the backdrop of the arguments advanced by the\r\nlearned counsel appearing for the parties, it is not in dispute\r\nthat the land losers are entitled for compensation from the\r\nrespondent-BDA. In some of the petitions, the land owners\r\nhave received compensation and in some of the writ petitions\r\nthe respondent-BDA has disputed the title of the petitioners. In\r\nthis connection, I have carefully considered the judgment of\r\nthis Court in Writ petition No.45695 of 2011 decided on 26th\r\nJuly, 2012 (ARUNACHALAM’s case). Following the judgment <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">rendered in the said case, this Court disposed of several writ\r\npetitions and one among them was Writ Petition No.16952 of\r\n2014 (SUNANDA’s case). In the case of SUNANDA (supra), this\r\nCourt, following the order passed in ARUNACHALAM’s case,\r\ndisposed of the writ petition with certain directions and the said\r\njudgment rendered in the case of SUNANDA was taken up in\r\nappeal by respondent-BDA in Writ Appeal No.1382 of 2016 and\r\nthe Division Bench of this Court, by order dated 27th\r\nSeptember, 2016, dismissed the appeal preferred by the\r\nrespondent-BDA and same was confirmed by the Hon\'ble Apex\r\nCourt in SLP No.849 of 2017 decided on 06th January, 2017. In\r\nthat view of the matter, though the learned Senior Counsel\r\nappearing for respondent-BDA would contend that the petition\r\ndeserves to be dismissed as the petitioners are not entitled for\r\n100 developed area, I am of the view that the said submission\r\ncannot be accepted in its entirety, however, the directions\r\nissued by this court in ARUNACHALAM’s case (supra) referred to\r\nat paragraph 8 is applicable to the facts of the present writ\r\npetitioners.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">8. Having taken note of the fact that the grievance of the\r\npetitioners have to be considered in the light of the judgment\r\nrendered in the case of ARUNACHALAM’s (supra), the next\r\nquestion to be answered in these writ petitions is in respect of\r\ndispute raised by the respondent-BDA with regard to title of the\r\npetitioners. In this regard, it is well settled principle in law that\r\nthe respondent-BDA is bound to grant compensation to the\r\npetitioners or their legal representatives or nominees, only after\r\nsuch petitioners establishing their right over the schedule\r\nproperties mentioned in the writ petitions. It is also made clear\r\nthat unless the petitioners establish their right over the petition\r\nschedule property, such petitioners are not entitled for the relief\r\ngranted by this Court in the case of ARUNACHALAM (supra). In </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the course of arguments, learned Senior Counsel representing\r\nrespondent-BDA disputed the title relating to the respective\r\npetition schedule properties and accordingly, in such cases\r\nwherever title is disputed by the respondent-BDA, liberty is\r\nreserved to the petitioners to approach the respondent-BDA by\r\nmaking necessary representation along with the relevant\r\ndocuments to establish their right having regard to the factual\r\naspects of the case and after considering the material on\r\nrecord, as the writ petitions are squarely covered by the\r\njudgment of this Court in the case of ARUNACHALAM (supra),\r\nthe respondent-BDA shall complete the entire exercise within\r\nsix months from the date of receipt of certified copy of this\r\norder and convey the outcome of the same to the writ\r\npetitioners.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 9. In some of the writ petitions, the petitioners have\r\nstated that the land belonging to the petitioners have been\r\nutilised, however, same has been denied by the respondentBDA that they have not utilised such lands as contended by the\r\ncounsel for the petitioners. In such cases, the respondent-BDA\r\nshall consider the grievance of such petitioners and if it arrives\r\nat a conclusion that the land belonging to the petitioners has</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">been utilized for the purpose of formation of road, such\r\npetitioners are entitled for the benefit granted by this Court in\r\ncase of ARUNACHALAM (supra). Needless to say that liberty is\r\nreserved to such writ petitioners also to establish their right\r\nand to approach the respondent-BDA with regard to clarification\r\nregarding utilization of their lands. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Subject to these\r\nobservations, petitions are disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'adccf7b19670a495d30d630f9be0c8d3.JPG', '91c48f94a63d62509ad4e659dcc59a93.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-14', 1, '', '', '2022-09-13 19:52:46', '2022-09-14 11:19:56');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2185, 'WaHqrNhZLpaJ39MG2hZVpZxqi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Conduct of party in participating in arbitral proceedings and then blaming the arbitrator is against the basic notion of justice”. Karnataka High Court imposes cost of Rs. 5 lakhs on ITI Limited. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ITI Limited Vs Alphion Corporation and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Commercial Suit 1 of 2022 decided on 9 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Alphion Corporation who is the Respondent herein\r\nwas the Claimant before the arbitral Tribunal and is\r\nhereinafter referred to as Alphion and/or Claimant;\r\nITI Limited who is the plaintiff in this proceeding was\r\nthe respondent before the Arbitral Tribunal and is\r\nhereinafter referred to as ITI Limited and/or\r\nrespondent.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Alphion claims to be a leading provider of Broadband\r\nsolutions for business and communities supporting\r\nlarge Network Operators, Small and medium\r\nEnterprises and community Networks with latest fiber\r\nOptic and Broadband Access technologies which\r\ndevelops, manufactures and sells Telecommunication\r\nproducts and provides after-sale services. It is stated\r\nthat Alphion and ITI had entered into a Technical\r\nCollaboration Agreement dated 26.10.2007\r\n[hereinafter for brevity referred to as ‘TCA’]\r\nwhereunder the parties wanted to explore the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">various business opportunities available in India to\r\nsupply the products listed in the TCA.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>5. Alphion and ITI being interested in jointly pursuing\r\nsuch business opportunities with a view to\r\nmanufacture, market and/or sell, install, commission\r\nand maintain contract projects for Bharat Sanchar\r\nNigam Limited [BSNL], Mahanagar Telecom Nigam\r\nLimited [MTNL] and other mutually agreeable\r\ntelecom services providers worldwide.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. In terms of the TCA, Alphion and ITI were to\r\ncooperate and coordinate with each other to market\r\nthe products, the term of the TCA being seven years.\r\nIt was the responsibility of Alphion to ensure that the\r\ncontract products complied with the applicable\r\ntender/specification and it was the obligation of ITI\r\nto assemble and manufacture the contracted projects\r\nfor the purpose of marketing and supplying the\r\nsame, as regards which a non-exclusive, nontransferable, non-sublicensable license was issued by </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Alphion to ITI. Apart therefrom there are various\r\nterms and conditions which were agreed upon in the\r\nTCA for the purpose of achieving the aforesaid\r\nobject.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n7. The purpose of execution of the TCA apparently was\r\nfor the reason that ITI being a public sector\r\nundertaking would have a Reservation Quota (RQ)\r\nand a Tender Quantity (TQ) in respect of tenders\r\nwhich are issued by other public sector undertakings\r\nwithin the country.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. In furtherance of the contract entered into between\r\nBSNL and ITI for the RQ and TQ, BSNL issued\r\nadvance purchase orders on 23.02.2009 and\r\n8.04.2009 which were subsequently confirmed vide\r\nPurchase Orders dated 11.50.2009 and 3.07.2009.\r\nAt this stage, a tripartite agreement came to be\r\nentered into between Alphion, ITI and BSNL\r\nwhereunder TCA has acknowledged and Alphion and\r\nITI had agreed to comply with the Purchase Orders.\r\nApart therefrom, opening of an ESCROW account was\r\ncontemplated to which the amounts due from BSNL\r\nwas to be paid and thereafter to Alphion and ITI.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">14. ITI though agreed for the said appointment of an\r\narbitrator had stated that unfortunately ITI was\r\nunable to make payment of the dues on account of\r\nBSNL not making payment of monies. There is no\r\ndispute between Alphion and ITI and the dispute is\r\nwith BSNL and as such recommended that the\r\ndispute cannot be resolved without BSNL being a\r\nparty in the arbitration proceedings and had called\r\nupon Alphion to appoint a sole arbitrator from the list\r\nprovided by Alphion as a joint nominee of Alphion </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and ITI with no financial burden to ITI making BSNL,\r\na party to the arbitration proceedings.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. The Tribunal came to the conclusion that BSNL is not\r\na party to the arbitration agreement, merely because\r\nITI had indicated that bringing on record BSNL would\r\nhelp the Tribunal in arriving at a more\r\ncomprehensive decision was not a reason to bring on\r\nrecord the said BSNL which is a third party who does\r\nnot have any beneficial interest in the underlying\r\ncommercial transaction and there being no privity of\r\ncontract between Alphion and ITI, as such the\r\napplication came to be rejected.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. The points that would arise for determination of this\r\nCourt are:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Whether the award comes under the\r\nmischief of Section 34(2)(A)(iv) of the\r\nA&C Act on account of the order dealing\r\nwith disputes not contemplated or not\r\nfalling within the terms of submissions?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Whether the award in question comes\r\nwithin the mischief of Section 32(2)(B)(ii)\r\nof the A&C Act on account of the award <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">being in conflict with the Public Policy of\r\nIndia?\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3. Whether the impugned award is in\r\nviolation of the fundamental Public Policy\r\nof India and is required to be set-aside\r\nunder Section 34(2)(b)(ii) Explanation\r\n(1)(ii) of the A&C Act?\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. Whether the award falls foul of Section\r\n34(2)(a)(v) of the A&C Act on account of\r\nthe composition of the arbitral Tribunal\r\nand or arbitral procedure not being in\r\naccordance with terms of the Arbitration\r\nAgreement?\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>5. Whether the arbitral award is in\r\ncontravention of Section 34(2)(a)(iii) of\r\nthe A&C Act?\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>6. Whether the arbitral award suffers from\r\nlack of reasons and is in violation of\r\nSection 31 of the A&C Act?\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. Whether the arbitral award is in violation\r\nof Section 28(2) of A&C Act on the ground\r\nthat the arbitral Tribunal has applied\r\nprinciples of equity?\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>8. Whether the arbitral award falls foul of\r\nSection 28(1)(b) of A&C Act requiring it to\r\nbe set-aside?\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. What order?</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">32. ANSWER TO POINT NO.1: Whether the award\r\ncomes under the mischief of Section\r\n34(2)(a)(iv) of the A&C Act on account of the\r\norder dealing with disputes not contemplated\r\nor not falling within the terms of submissions?</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">32.14. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The contention that because BSNL is not made\r\na party, the award would fall foul of Section\r\n34(2)(a)(iv) is not appreciable inasmuch as\r\nthere is no serious attempt made by ITI to\r\nmake BSNL a party, the arbitration proceeded\r\nwith on the basis of the consent given by ITI.\r\nThough Sri. C.K.Nanda Kumar, learned Senior\r\ncounsel submits that the consent was\r\nconditional, I am of the considered opinion that\r\nthere is no conditional consent as alleged or\r\notherwise. The consent for arbitration is\r\ncomplete. The recommendation to make BSNL\r\na party cannot make the consent conditional.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32.16. The contention that fundamental principles of\r\njustice is breached in the award since the\r\ncontract has been altered by relying upon the\r\ndecision in Ssangyong Engg’s case (supra)\r\nand as such, the basic notion of justice have\r\nbeen breached, in my considered opinion does\r\nnot stand a test of reason since firstly there has\r\nto be a unilateral addition or alteration. The\r\nalteration being claimed is as regards BSNL not\r\nbeing made a party. There being no unilateral\r\naddition or alteration, there cannot be a\r\ncontention raised that there is breach of\r\nfundamental notion of justice as contended by Sri.C.K.Nanda Kumar, learned Senior counsel.\r\nSimilar is the situation as regards the decision\r\nin Sical Terminals Private Limited’s case.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32.21. The reference to Chloro Control’s case (supra)\r\nand contending that there is direct relationship\r\nof BSNL to the signatory of arbitration clause is\r\nalso bereft of merits inasmuch as in Chloro\r\nControl’s case, a person who is not a party to\r\nthe arbitration agreement was sought to be\r\nmade a party on the ground of group of\r\ncompanies doctrine inasmuch as the said\r\nperson would also be bound by any order that\r\nmay be passed in the arbitral proceedings. In\r\nthe present case BSNL does not come within\r\nthe purview of ‘Group of companies’ doctrine\r\ninasmuch as BSNL is not a part of ITI or\r\nAlphion. BSNL has a completely independent\r\nexistence. Apart therefrom even according to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ITI, BSNL was required to be made party\r\nrespondent with ITI and Alphion being the\r\nclaimants, so as to impose the liability on BSNL\r\nknowing fully well that the order passed against\r\nITI would not bind BSNL. Thus, looked at from\r\nany angle, BSNL not coming within the purview\r\nof ‘Group of companies’ and or not being bound\r\nby any award which may be passed, the\r\nprinciples laid down in Chloro Control’s case,\r\nin my considered opinion would not be\r\napplicable to the present facts.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32.26. In the acceptance letter though contended to\r\nbe conditional acceptance, there was no dispute\r\nraised as regards the arbitration clause not\r\nbeing applicable to the claim of Alphion as\r\nregards the amounts due under the AMC.\r\nInfact, it was suggested that the claim made by\r\nAlphion could be made against BSNL with\r\nAlphion and ITI being the claimants, such a\r\nsuggestion made by ITI to my mind would\r\nindicate that even according to ITI the disputes\r\nwere governed by and could be resolved by\r\nway of Arbitration. Thus, the argument now\r\nbeing advanced for the first time in Section 34\r\nproceedings cannot be countenanced either in\r\nlaw or fact.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">32.27. Hence, I answer Point No.1 by holding that\r\nthe arbitral award does not deal with a\r\ndispute not contemplated by or not falling\r\nwithin the terms of submission to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">arbitration nor does it contain decisions on\r\nmatters beyond the scope of submission to\r\narbitration.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. ANSWER TO POINT NO.2: Whether the award in\r\nquestion comes within the mischief of Section\r\n32(2)(B)(ii) of the A&C Act on account of the\r\naward being in conflict with the Public Policy of\r\nIndia?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>AND</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Whether the impugned award is in violation of\r\nthe fundamental Public Policy of India and is\r\nrequired to be set-aside under Section\r\n34(2)(b)(ii) Explanation (1)(ii) of the A&C\r\nAct? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33.11. Having participated in the proceedings and\r\nhaving submitted arguments on the main\r\nmatter, ITI cannot be heard to say that the\r\nrights of ITI under Section 37 of A&C Act have\r\nbeen deprived on account of the arbitral\r\nTribunal not having passed an order on the said <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">application making the award fall foul of Section\r\n34(2)(B)(ii) of the A&C Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33.13. The decisions which have been relied upon by\r\nthe counsel for ITI lay down the principles of\r\nlaw as regards which there can be no quarrel, it\r\nis the applicability which has to be seen in the\r\nfacts and circumstances.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33.14. As aforesaid the grounds which have been\r\nraised to invoke Section 34(2)(b)(ii) of the A&C\r\nAct not being sustainable.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33.15. Hence, I answer Point Nos.2 and 3 holding\r\nthat the award in question does not come\r\nwithin the mischief of Section 32(2)(b)(ii) <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and Explanation (1)(ii) thereof nor is the\r\naward in conflict with the Public Policy of\r\nIndia.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34. ANSWER TO POINT No.4: Whether the award\r\nfalls foul of Section 34(2)(a)(v) of the A&C Act\r\non account of the composition of the arbitral\r\nTribunal and or arbitral procedure not being in\r\naccordance with terms of the Arbitration\r\nAgreement? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34.3. Section 34(2)(a)(v) of A&C Act will be\r\napplicable only in the event of composition of\r\narbitral Tribunal or arbitral procedure not being\r\nin accordance with the agreement.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34.6. The contention that since BSNL was not made a\r\nparty, the composition of arbitral Tribunal is not\r\nin accordance with the agreement between the\r\nparties is not sustainable, since there is no\r\nagreement between the parties to make BSNL\r\nas a party to the arbitral proceedings. The\r\naspect of impleadment of BSNL has been dealt\r\nwith in the answer to the above point and is not\r\nrequired to be repeated once again. Suffice it to\r\nsay that Section 34(2)(a)(v) of A&C Act deals\r\nwith the composition of arbitral Tribunal and\r\nnot as regards the parties to the arbitration.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34.13. There is also no allegation and/or averment\r\nmade as regards procedure followed by the\r\nTribunal not being in accordance with the\r\nagreement of the parties, as such, Section\r\n34(2)(a)(v) of the A&C Act dealing with only\r\ncomposition of arbitral Tribunal and/or arbitral\r\nprocedure, there being no grounds which have\r\nbeen raised by ITI which come within the\r\npurview of the said provision, I am of the\r\nconsidered opinion that no grounds have been\r\nmade out by the petitioner so as to invoke\r\n34(2)(a)(v) of the A&C Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34.14. The arbitral procedure is basically a procedure\r\nwhich is required to be followed by the arbitral\r\nTribunal. The procedure to be followed is\r\ndetailed in CHAPTER-V of the A&C Act which\r\ndeals with conduct of arbitral proceedings.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34.15. Learned Senior counsel for ITI has not been\r\nable to place on record or establish any\r\nviolation of the procedure under Section 19,\r\nwhich would bring into effect Section\r\n34(2)(a)(v) of the A&C Act. None of the other\r\nprovisions under Chapter-V viz., Section 20\r\nrelating to Place of arbitration, Section 21-\r\nCommencement of arbitral proceedings, Section\r\n22 relating to Language, Section 23 relating to\r\nStatement of claim and defence, Section 24\r\nrelating to hearings and written proceedings,\r\nSection 26 relating to Expert appointment by\r\narbitral Tribunal and Section 27 relating to\r\nCourt assistance in taking evidence, are\r\ncontended to be violated. Hence, the question\r\nof any arbitral procedure followed by arbitral\r\nTribunal being not in accordance with the\r\nagreement of the parties is only an hogwash\r\nand a convoluted argument sought to be\r\naddressed before this Court which also is liable <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to be deprecated and as such deprecated and\r\nrejected.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">34.16. I answer point No 4 by holding that the\r\naward does not fall foul of Section\r\n34(2)(A)(v) of the A&C Act, there is\r\nnothing wrong in the composition of the\r\narbitral Tribunal nor is the arbitral\r\nprocedure followed by the arbitrator in\r\nviolation of the terms of the Arbitration\r\nAgreement</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>35. ANSWER TO POINT NO.5: Whether the arbitral\r\naward is in contravention of Section\r\n34(2)(a)(iii) of the A&C Act? <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">35.2. The contention of the learned Senior counsel for\r\nITI is that the deferment of the order on the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">impleading application would bring the award\r\nunder the mischief of Section 34(2)(a)(iii) of\r\nthe A&C Act. A perusal of 34(2)(a)(iii) of the\r\nA&C Act extracted hereinabove would only\r\nindicate that the same would apply when a\r\nparty making the application was not given\r\nproper notice of the appointment of an\r\narbitrator or of the arbitral proceedings or\r\notherwise unable to present his case.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>35.3. It is not the contention of ITI that it did not\r\nreceive any notice of appointment, it is also not\r\nthe case of ITI that it did not receive any notice\r\nof the arbitral proceedings nor is it the case of\r\nITI that it was unable to present its case.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>35.4. In fact, ITI has consented to the appointment\r\nof Arbitrator, participated in the arbitral\r\nproceedings, filed its defence statement and\r\naddressed arguments, thus, the contention\r\nwhich is now sought to be addressed before this <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court placing reliance on Section 34(2)(a)(iii) is\r\ncompletely malafide and as such, is rejected.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>35.5. I answer point no.5 by holding that the\r\naward is not in contravention of section\r\n34(2)(a)(iii) of A&C Act. The petitioner\r\nhas been given proper notice of the\r\nappointment of an arbitrator as also the\r\narbitral proceedings and has in fact\r\nparticipated in the proceedings.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">36. ANSWER TO POINT NO.6: Whether the arbitral\r\naward suffers from lack of reasons and is in\r\nviolation of Section 31 of the A&C Act?</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36.4. In my considered opinion that rejection of\r\nimpleadment application was not required to be\r\nmentioned in the award, since the same was a\r\nseparate application which is dealt with\r\nseparately. It is only if the application had been\r\nallowed that it had to find place in the award.\r\nRejection of impleading application would have\r\nno effect on the award as such. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36.5. As regards the quantification of the amounts\r\ndue, there was never any dispute raised by ITI\r\nas regards quantification of the amounts. The\r\nonly contention raised being that BSNL was to\r\nmake payment of the monies. The agreement,\r\nservices rendered under the agreement and the\r\namounts due under the agreement had not\r\nbeen disputed. Thus, in my opinion, there was\r\nno need for the Tribunal to deal with the\r\nquantification of the amounts in detail when\r\nthere is an admission on part of ITI that the\r\namounts are due. As regards the contention\r\nthat the claim of Alphion was based on tort, the\r\nsame has been dealt hereinabove and I have\r\ncome to the conclusion that the amount is\r\ncontractual and not tortious, thus, this would\r\nnot have any bearing.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36.6. I answer point No.6 by holding that the\r\nlearned arbitrator has considered all <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">relevant points, appreciated the evidence\r\non record and has given reasons for each\r\nof his findings. Hence, the award does not\r\nfall foul of section 31 of the A&C Act.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">37. ANSWER TO POINT NO.7: Whether the arbitral\r\naward is in violation of Section 28(2) of A&C\r\nAct on the ground that the arbitral Tribunal has\r\napplied principles of equity?</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>37.5. Thus, the restriction which has been imposed\r\nunder Section 28(2) of A&C Act would depend\r\non the kind of proceedings which are filed\r\nbefore the arbitral Tribunal since the A&C Act\r\nalso mandates that the law applicable to such\r\nproceedings as in force in India is required to\r\nbe applied. In the example above, the Specific\r\nRelief Act, 1963 contemplating consideration of\r\nequity while granting or refusing specific\r\nperformance, such consideration of equity\r\nwould not fall foul of Section 28(2) of the A& C\r\nAct. In my considered opinion there is no\r\nblanket embargo under Section 28(2) of A&C\r\nAct so as to prevent the arbitral Tribunal to\r\nconsider matters in equity.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>37.6. Be that as it may, in the present matter, the\r\nTribunal has not considered or applied any\r\nprinciples of equity. The Tribunal has\r\nconsidered the amount which was claimed by\r\nAlphion to be due by ITI which had been\r\nadmitted by ITI and as such, the Tribunal\r\ndirected ITI to make payment of such amounts.\r\nThe same being completely contractual and no\r\nprinciples of equity having been applied even\r\nthis argument raised by learned Senior counsel\r\nfor ITI under Section 28(2) of A&C Act will have\r\nto be rejected and as such, is rejected.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>37.7. I answer point no.7 by holding that the\r\narbitral award is not in violation of Section\r\n28(2) of the A&C Act. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>38. ANSWER TO POINT NO.8: Whether the arbitral\r\naward fall foul of Section 28(1)(b) of A&C Act\r\nrequiring it to be set-aside ?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>38.11. In my considered opinion reliance placed by the\r\nlearned Arbitrator on the said decisions per se\r\nwould not amount to applying the American\r\nlaw. The principles having been expounded by\r\nthe Hon’ble Delhi High Court in Harvinder\r\nSingh’s case (supra), the reference to the\r\nAmerican Judgments is also in furtherance of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the decision of the Judgment of the High Court\r\nof Delhi. It is not that a particular statute in\r\nforce in America is applied in India. It is only\r\nthe principles which have been explained by\r\nAmerican Courts which have been relied upon\r\nby the learned Arbitrator and therefore, the\r\nsame would not fall foul of Section 28(1)(b) of\r\nthe A&C Act.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">38.12. I answer point no.8 by holding that\r\nArbitral Tribunal has decided the matter in\r\naccordance with Rules designated and as\r\nper the Indian law applicable. The\r\nTribunal has not applied any substantial\r\nlaw of any other country to the present\r\nmatter and as such the award does not fall\r\nfoul of section 28(1)(b) of the A&C Act.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>41. ANSWER TO POINT NO.9: What order?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>No grounds have been made out under section\r\n34 of the A&C Act, the suit stands dismissed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n\r\nii. ITI is directed to make payment of cost of\r\nRs.5,00,000/- [Rupees Five lakhs only] to\r\nAlphion within a period of four weeks from\r\ntoday i.e., on or before 7.10.2022, the order\r\nhaving been pronounced in the presence of\r\nlearned Senior counsel for ITI. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0fc5875227305a6a1224b984e5c6e42e.JPG', 'd507e60b8d11fd50fcf750d63cd21f47.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-15', 1, '', '', '2022-09-14 16:30:23', '2022-09-15 18:37:38'),
(2190, 'g8EUlgRXYwWMWqigVJf0EnB59', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Death of driver due to heart attack while taking rest in parked vehicle shall also be construed as death during the course of employment. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Divisional Manager Vs Shankaramma and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.F.A 20003 of 2010 decided on 9 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. Factual matrix of the case of the claimants\r\nbefore the Workmen’s Commissioner (for short,\r\n‘Commissioner’) is that deceased Eranna was working\r\nas driver with respondent No.1 in respect of lorry\r\nbearing No.KA-19/B-1126 and he was taking rest near\r\nIdya village, Suratkal by halting in the said vehicle. He\r\ndied due to cardiac arrest and hence the claimants\r\nbeing the legal representatives of said Eranna laid a\r\nclaim before the Commissioner. Respondent No.1,\r\nwho is the owner of the vehicle admitted his\r\nemployment and also admitted that during the course\r\nof employment Eranna died. Insurance Company has\r\nfiled written statement denying the contents of the\r\nclaim petition and contended that the deceased was\r\nnot a workmen within the meaning of Section 2(1)(n)\r\nof Workmen’s Compensation Act and also denied his\r\navocation, income and contended that it is clear that\r\nhe died due to cardiac failure. Subsequently, </span><span style=\"font-size: 12pt;\">Insurance Company got amended the written\r\nstatement contending that he has died due to cardiac\r\nfailure and not due to accidental death and he was\r\ntaking intoxicated drugs, which is not covered under\r\nthe policy and hence, Insurance Company is not liable\r\nto pay the compensation.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. In view of the rival contentions of the\r\nparties, the following points would arise for\r\nconsideration:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">i. Whether in the case of death of driver of\r\na insured vehicle in non usage of vehicle </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">at the time of his death due to heart\r\nattack, it absolves liability of the\r\nInsurance Company?\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>ii. What order?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">14. It is also important to note that owner of\r\nthe vehicle has not been examined and the very\r\nallegation in the complaint as well in the charge sheet\r\nhas not been corroborated by examining the owner.\r\nThe owner did not step into the witness box, except\r\ntaking the defence. No doubt, the postmortem report\r\nalso discloses that the cause of death is due to cardiac\r\nfailure and the same is also not disputed and it is also\r\nclaim of the claimants that he died due to heart\r\nattack. The fact that he was working as driver is not in\r\ndispute. The fact that vehicle was parked near the\r\npetrol bunk and he was taking rest is also not in\r\ndispute and whether it is a case of exonerating the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">liability of Insurance Company on the ground of nonusage of the vehicle at the time of death is a question.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. The contention raised in this case that\r\nthere is no usage of vehicle but the fact that he died\r\nin the vehicle itself is not in dispute and the fact that\r\non that day he attended his duty is also not in dispute.\r\nI have already pointed out that he died during the\r\ncourse of employment and admitted fact need not to\r\nbe proved. Insured admitted the same and Insurance\r\nCompany cannot dispute the same and only to\r\nindemnify the insured I have pointed out that there\r\nneed not necessarily the vehicle must be in usage at\r\nthe time of his death and Court has to take note of\r\ncasual connection with employment and death and the\r\npolicy is taken to cover the risk of the driver. The very\r\ncontention of Insurance Company that it was only a\r\nnatural death and company is not liable to pay the\r\ncompensation cannot be accepted. I have already <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">pointed out with regard to fact of allegation that he\r\nwas consuming alcohol regularly that no material is\r\nplaced before the Court and when such being the\r\ncase, the very contention of the Insurance Company\r\ncannot be accepted. No doubt, Insurance Company\r\nrelied upon order passed in MFA 5142/2010, wherein\r\nthe factual matrix of that case is restricted in the\r\norder except referring the contention of the Insurance\r\nCompany. In MFA No.21749/2010, the factual matrix\r\nof the case is that driver of the lorry while sleeping on\r\nthe load, died because of fall therefrom to the ground\r\nand the said facts are not applicable to the present\r\ncase.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. I have already pointed out that it is specific\r\nclaim of the claimants before the Commissioner that\r\non account of stress involved in the employment he\r\ndied due to heart attack and nothing is placed before\r\nthe Court that there is no casual connection with\r\ncause of death and also his employment and taking of\r\nnotional extension is to be considered while\r\nappreciating each facts and circumstances. I have\r\nalready pointed out that he died while he was sleeping\r\nin the vehicle itself and the fact that he was working\r\nin the very same day with respondent No.1 is not in\r\ndispute and the owner has also admitted that he was\r\ndied during the course of employment. I have already\r\npointed out that usage of vehicle does not mean that\r\nat the time of his death he need not necessarily drive\r\nthe vehicle but in casual connection of his <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">employment only he was sleeping in the lorry and\r\nwhile taking rest he suffered heart attack and hence\r\nvery contention of Insurance Company cannot be\r\naccepted that it is not liable to pay the compensation.\r\nHence point No.1 is answered in negative.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">21. Regarding point No.2</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Appeal is dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5b8b46016bd5d1445c46b799eaf9c130.JPG', '6453fcafa9572c0f14deb0cbc384fc1c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-16', 1, '', '', '2022-09-15 18:47:22', '2022-09-16 12:28:03');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2186, '2qLLNKXeimyGPX2HXzACMrgkW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mere pendency of writ petition or writ appeal or SLP will not extend time to pass award under the Land Acquisition Act unless interim orders prevented passing of the award. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M. Suresh Kumar and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 11551 of 2019 decided on 6 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. A preliminary notification under Section 4(1) of the\r\nLand Acquisition Act, 1894 (for short, ‘L.A.Act’) came\r\nto be published on 20.05.2002 seeking to acquire the\r\nvarious lands including the lands subject matter of\r\nthe above writ petitions. A final notification came to\r\nbe published on 02.08.2003.\r\n7. Alleging that the final notification was published one\r\nyear after the publication of the preliminary\r\nnotification. Several writ petitions were filed in WP <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">No.11298/2005, WP No.11832/2005, WP\r\nNo.10876/2005, WP No.11300/2005, WP\r\nNo.11302/2005 and WP No.11299/2005. All of which\r\ncame to be disposed of by common judgment dated\r\n22.11.2010. This Court taking into consideration that\r\nthe acquisition was for a public purpose in order to\r\nsave the acquisition came to a conclusion that if an\r\naward is passed on the current valuation of the\r\nproperty, the interest of the land owners would be\r\nsafeguarded</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The said order came to be challenged by the\r\npetitioners-land losers by way of writ appeal in WA\r\nNos.33-34/11.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The beneficiary of the land acquisition namely the\r\nAgricultural Produce Marketing Committee (APMC)\r\nhad also filed writ appeals in WA Nos.45/2011,\r\n47/2011 and 52/2011 challenging the quashing of\r\nthe award passed. All the above Writ Appeals were\r\ntaken up for consideration together and disposed by\r\na common order dated 5.9.2011</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. The Hon’ble Apex Court however while adverting to\r\nsome of the contentions raised as regards the Right\r\nto Fair Compensation and Transparency in Land\r\nAcquisition, Rehabilitation and Resettlement Act,\r\n2013 (“LARR Act” for short) observed that the said\r\ncontentions would require examination of facts and\r\ndue opportunity. As such, it was left open to the\r\naggrieved to pursue their remedies in accordance\r\nwith law before the appropriate forum. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. The points that would arise for consideration are</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Whether once a direction has been issued\r\nin a Writ Petition for an award to be\r\npassed, would the time period prescribed\r\nunder Section 11A of the Land Acquisition\r\nAct, 1894 be applicable or would it get\r\nextended merely on the ground that a Writ\r\nAppeal had been filed and pending?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Whether the time for passing of an award\r\nwould get extended since the proceedings\r\nwere pending before the Hon’ble Apex\r\nCourt in a SLP?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. What is the reference point of time for\r\nconsidering the period prescribed under\r\nSection 11A of the Land Acquisition Act,\r\n1894?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. What is the reference point of time for\r\ncalculating the time period prescribed\r\nunder Section 25 of Right to Fair\r\nCompensation and Transparency in Land\r\nAcquisition, Rehabilitation and\r\nResettlement Act, 2013?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n5. Whether in the given facts and\r\ncircumstances, the acquisition proceedings\r\nin the present matter has lapsed?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n6. Whether the beneficiary can claim that the\r\ndelay in acquisition is by the State and/or\r\nSLAO and as such, the acquisition needs to\r\nbe upheld to protect the interest of the\r\nbeneficiary? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. What order? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>21. Answer to Point No.1: Whether once a direction\r\nhas been issued in a Writ Petition for an award\r\nto be passed, would the time period prescribed\r\nunder Section 11A of the Land Acquisition Act,\r\n1894 be applicable or would it get extended\r\nmerely on the ground that a Writ Appeal had\r\nbeen filed and pending?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>and</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\nAnswer to Point No.2: Whether the time for\r\npassing of an award would get extended since\r\nthe proceedings were pending before the\r\nHon’ble Apex Court in a SLP?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21.3.A perusal of the above provision would indicate\r\nthat the Collector is required to make an award\r\nunder Section 11 of L.A.Act within a period of\r\ntwo years from the date of publication of the\r\ndeclaration under Section 6 of L.A.Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21.6. In terms of Section 6 of L.A.Act, a declaration\r\nmade therein is required to be published in the\r\nOfficial Gazette and in two daily newspapers\r\ncirculating in the locality in which the land is\r\nsituated and the said declaration is stated to be\r\na conclusive evidence that the land is required\r\nfor public purpose.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21.11. For the Explanation to come into effect and/or\r\nextension of time to take place, it is required\r\nthat a positive order of stay be granted by the\r\nCourt insofar as any action/proceedings to be\r\ntaken in pursuance of the declaration. This in\r\nmy considered opinion will also have to be such\r\nthat the same would come in the way of\r\npassing an award under Section 11 of L.A.Act\r\nsince if the order of stay does not come in the\r\nway of passing of an award, there is nothing\r\nwhich could be said to have prevented the\r\nCollector from passing such an award.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">21.12. Thus, I answer point Nos.1 and 2 by holding\r\nthat mere filing of a Writ Petition, Writ Appeal\r\nor Special Leave Petition would not extend the\r\nperiod fixed under Section 11A of L.A.Act for\r\nmaking an award. The award would continue to\r\nrequire to be made within a period of two years\r\nfrom the date on which the final declaration </span><span style=\"font-size: 12pt;\">was published. It is only in the event of an\r\norder of stay being granted by any Court which\r\nhad an effect of staying any action or\r\nproceeding to be taken in pursuance of the\r\ndeclaration that the period during which the\r\nstay order was in operation would be excluded\r\nor as a corollary, the period fixed under Section\r\n11A of L.A.Act would be extended by the time\r\nperiod during which the stay was operational.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>22. Answer to Point No.3: What is the reference\r\npoint of time for considering the period\r\nprescribed under Section 11A of the Land\r\nAcquisition Act, 1894?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22.1.This aspect has already been adverted to in\r\nanswer to Points No.1 and 2 above. A perusal\r\nof Sub-Section (2) of Section 6 of L.A.Act which\r\nhas been reproduced hereinabove, indicates\r\nthat the last date of publication and giving of\r\nsuch public notice, shall be the date of\r\npublication of the declaration.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22.2.Thus, there could be two situations which could\r\narise viz., there could be one final declaration\r\nwhich is published. If that be so, then the date\r\non which the said final declaration was\r\npublished would be the date of the declaration.\r\nHowever, if there are multiple final declarations\r\npublished, for example, if there are five final\r\ndeclarations published, then it is the date on\r\nwhich the last declaration i.e., 5th declaration\r\nwas published, which would be the reference\r\npoint of time for considering the period fixed\r\nunder Section 11A of L.A.Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. Answer to Point No.4: What is the reference\r\npoint of time for calculating the time period\r\nprescribed under Section 25 of Right to Fair\r\nCompensation and Transparency in Land\r\nAcquisition, Rehabilitation and Resettlement\r\nAct, 2013?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">23.3. In terms of Section 24(1) of LARR Act where\r\nthe land acquisition proceedings are initiated\r\nunder the Land Acquisition Act, 1894, if no\r\naward under Section 11 of the L.A.Act has been\r\nmade, then the provision of LARR Act for\r\ndetermination of compensation would apply</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>23.5.Thus, if no award under Section 11 of L.A.Act\r\nhas been passed prior to LARR Act coming into\r\nforce, then by applying the provision of LARR\r\nAct, the compensation would be required to be\r\ndetermined by the Collector that is to say that\r\nthe enquiry in terms of Section 23 of LARR Act\r\nwould have to be made by the Collector and the\r\naward rendered.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">23.6.The time period in such a situation would have\r\nto be calculated in terms of Section 25 of LARR\r\nAct by deeming the final declaration to have\r\nbeen published on the date on which the LARR\r\nAct came into force i.e., on 01.01.2014 and the\r\nperiod prescribed under Section 25 of LARR Act\r\nwould be applicable thereto requiring the award\r\nto be passed within the period of 12 months</span> </span><span style=\"font-size: 12pt;\">from the date of publication of the declaration\r\nin such case being the deeming fiction of the\r\npublication of the declaration being 01.01.2014.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>23.7.The said period could be extended by a period\r\nof 12 months by the Appropriate Government if\r\nthe circumstances exist justifying the same by\r\nrecording reasons. In the event of the award\r\nnot being rendered within the said period, then\r\nthe land acquisition would lapse.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>23.8. Hence, I answer Point No.4 by holding that\r\nreference point of time for calculating time\r\nperiod prescribed under Section 25 of LARR Act\r\nfor an acquisition initiated prior to LARR act\r\ncoming into force would be the date on which\r\nthe LARR Act came into force being on\r\n01.01.2014. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">24. Answer to Point No.5: Whether in the given\r\nfacts and circumstances, the acquisition\r\nproceedings in the present matter has lapsed?</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">24.12. Admittedly, the preliminary notification had\r\nbeen published on 20.05.2002 and the final\r\ndeclaration had been published on 02.08.2003.\r\nToday we are in the year 2022. I am of the\r\nconsidered opinion that the authorities have a\r\nduty to act within the time frame prescribed\r\neither under the Land Acquisition Act, 1894 till\r\nthe time that it was in force or under the Right </span><span style=\"font-size: 12pt;\">to Fair Compensation and Transparency in Land\r\nAcquisition, Rehabilitation and Resettlement\r\nAct, 2013 from the date on which it came into\r\nforce. If the authorities do not comply with the\r\nsaid time period, then the natural consequences\r\nthat flows is that the acquisition would have to\r\nbe declared to have lapsed.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>24.13. As such I answer Point No.5 by holding that in\r\nthe given facts and circumstances, the\r\nacquisition proceedings have lapsed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>25. Answer to point No.6: Whether the beneficiary\r\ncan claim that the delay in acquisition is by the\r\nState and/or SLAO and as such, the acquisition\r\nneeds to be upheld to protect the interest of the\r\nbeneficiary? </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25.2.Though in some acquisitions, an ascertained\r\nperson or entity could be the beneficiary, in\r\nmost acquisition, it could be in the general\r\ninterest for formation of layouts etc., where the\r\nbeneficiary is not ascertained. Even in case\r\nwhere the beneficiary is ascertained, the\r\nacquisition proceedings are required to be\r\ninitiated and completed by exercise of powers\r\nof eminent domain by the State. No\r\ncompulsory acquisition can happen or resorted\r\nto by a beneficiary on its own. Thus, from the\r\ntime of issuance of the preliminary notification,\r\nconduct of enquiry, issuance of final\r\ndeclaration, passing of an award, taking\r\npossession of the property etc., all these <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">aspects have to be performed by the State or\r\nSLAO.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>25.3.The timelines which have been prescribed\r\nunder the Act are clear and it is for the State\r\nand/or SLAO to adhere to such timelines\r\nwithout default. If there is a default, the\r\nacquisition would have to be struck down as\r\nlapsed since the interest of the land loser would\r\nsuffer on account of State or SLAO not\r\ndischarging its functions in a time bound\r\nmanner.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">25.4.The beneficiary cannot on the basis of its\r\ninterest being harmed contend that the\r\nacquisition is required to be saved and/or that\r\non account of default by the State or SLAO, the\r\nbeneficiary cannot be deprived of usufructs of\r\nthe acquisition.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">25.5.The remedy in such a case would only be for\r\nthe beneficiary to lay a claim against the State\r\nclaiming any damages that might have been\r\ncaused to the beneficiary, which civil remedy\r\nthe beneficiary would always have. Hence, I\r\nanswer Point No.6 by holding that the\r\nbeneficiary cannot claim that if there is delay in\r\nacquisition by the State and/or SLAO, the\r\nacquisition needs to be upheld to protect the\r\ninterest of the beneficiary. In the event of\r\nthere being any violation of time period\r\nprescribed, irrespective of what was the cause\r\nfor the delay, the acquisition would lapse</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. Answer to Point No.7: What order<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i. The Writ Petitions are allowed. </b><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ed91972e26ff720c0280e2409807f6dd.JPG', '6a0bef1a1c1dc0a4aa20534ed6ca3337.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-15', 1, '', '', '2022-09-14 16:55:21', '2022-09-15 12:55:18'),
(2187, 'XJAbatDKISgp9NXqABAwoc9RI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mere falling of agricultural land within the urban agglomeration or municipal limits or Zonal Development Plan does not automatically make the land non-agricultural. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gulf Oil Corporation Ltd Vs The State of Telangana and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 7759-7760 of 2014 decided on 13 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Gupta and Justice Vikram Nath.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The challenge in Civil Appeal Nos. 7759-7760 of 2014 is to an order\r\ndated 7.3.2013 passed by the Andhra Pradesh High Court in Writ\r\nPetition No. 31893 of 2011 whereby the appellant herein i.e., Gulf\r\nOil Corporation Limited1\r\n was ordered to be evicted under the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">provisions of The Telangana Charitable and Hindu Religious\r\nInstitutions and Endowments Act, 19872\r\n. The lessee claimed\r\nleasehold rights on the land admeasuring 540 acres and 30 guntas\r\nsituated at village Kukatpally, Hyderabad.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>2. Civil Appeal No. 7761 of 2014 has been preferred by Sri Udasin\r\nMutt3\r\n, the lessor of the said land, arising out of Writ Petition No.\r\n8005 of 2012. The said writ petition was decided along with the writ\r\npetition filed by the lessee. The Mutt has claimed mesne profits in\r\nterms of Section 83(6) of the 1987 Act. However, the writ petition\r\nwas disposed of with a direction to consider the request of the\r\nlessee under Rule 15 of the Telangana Charitable and Hindu\r\nReligious Institutions and Endowments Immovable Properties and\r\nother Rights (Other than Agricultural Land) Leases and Licenses\r\nRules, 20034\r\n, published vide Government Order Memo No. 866\r\ndated 8.8.2003.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. The dry soil land measuring more than 540 acres and 30 guntas was\r\ngranted as inam land by the Nizam of Hyderabad to the Mutt\r\nsomewhere in the year 1873. The Mutt entered into an agreement\r\nof lease with M/s Indian Detonators, predecessor of the lessee, on\r\n23.07.1964 in respect of 143 acres of inam lands, bearing survey\r\nno. 1010/8 to 1010/10. The lessee, claiming to be the successor-ininterest of M/s Indian Detonators, relies on the permission said to be\r\ngranted by the Government to enter into lease of the inam land on </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">24.02.1964.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. The lessor thereafter entered into an agreement with M/s Indian\r\nDetonators on 14.9.1966 to take on lease 257 acres and 19 guntas\r\nof the inam land. The supplementary lease deed dated 21.03.1969\r\nwas also executed for an area of 2 acres and 32 guntas of land.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>44. We have heard learned counsel for the parties at length. The\r\nquestion required to be examined is whether in terms of Section 82\r\nof the 1987 Act, lease of agricultural land stands statutorily\r\ncancelled. It is not required to be examined at this stage as to\r\nwhether the lessee is the present lessee on account of change of\r\nthe name of original lessee M/s Indian Detonators Limited or IDL\r\nChemicals Limited. To determine the primary question, the following\r\naspects need to be examined:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(a) What is the effect of the order dated 25.8.2007 passed by the\r\nJoint Collector under the Inams Abolition Act?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(b) Whether the land in question is agricultural land to which the\r\nTelangana Charitable and Hindu Religious Institutions and\r\nEndowments Act, 1987 is applicable and the lease in favor of\r\nthe lessee stands cancelled in terms of Section 82(1) of the\r\nAct?\r\n(c) Whether the parties went to trial with the knowledge that the\r\nland in question was agricultural land in the proceedings\r\nbefore the Endowments Tribunal?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(c) Whether the parties went to trial with the knowledge that the land\r\nin question was agricultural land in the proceedings between the\r\nparties before the Endowments Tribunal?<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>45. The Inams Abolition Act abolished all inams (grants) by the Nizam.\r\nThe Act contemplates adjudication of matters in relation to grant of\r\noccupancy rights and certificates in respect of inam lands covered <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by the Act and vested with the Government, inquiry into the nature\r\nand history of such lands, determination of compensation payable\r\nto the Inamdar and apportionment thereto. Sections 4 to 8 of the\r\nInams Abolition Act came into force on 1.11.1973 i.e., the date of\r\ngrant of occupancy rights under the Inams Act. It appears that the\r\nMutt entered into an agreement with one Kalyani Narsing Rao. He\r\nfiled an application for grant of occupancy rights. Such application\r\nwas allowed by the Revenue Divisional Commissioner on\r\n27.11.2004. The Revenue Divisional Officer was considering an\r\napplication for issuance of occupancy rights certificate to the\r\ngeneral power of attorney holder of the Mutt</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>49. The proceedings under the Inams Abolition Act were initiated by a\r\nPower of Attorney holder claiming occupancy rights on the basis of\r\nan agreement to sell. The Mutt was represented by a Power of\r\nAttorney holder who was claiming independent rights, therefore, the\r\nprevious proceedings were not between the same parties as the\r\nMutt was not a party in its own rights but through an attorney who\r\nwas claiming independent right in himself. Therefore, the findings\r\nrecorded therein are not relevant or binding in respect of\r\nproceedings under another statute, enacted for different objective<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>to protect the inam land given to the charitable and religious\r\ninstitutions.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>50. The Inams Abolition Act is not applicable to the Mutt for the reason\r\nthat the Act itself is not applicable to charitable and the religious\r\ninstitutions in terms of Section 1(2)(i) up to 26.12.1985 and\r\nthereafter in terms of first proviso to Section 4(1) of the Inams\r\nAbolition Act. Thus, any finding recorded by the Joint Collector is\r\nonly for the purposes of negating the claim of Power of Attorney\r\nholder claiming occupancy rights. It has been categorically held by\r\nthe Joint Collector that the Act is not applicable to the Mutt.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>(b) Whether the land in question is agricultural land to which the\r\nTelangana Charitable and Hindu Religious Institutions and\r\nEndowments Act, 1987 is applicable and the lease in favor of the\r\nlessee stands cancelled in terms of Section 82(1) of the Act?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>57. A perusal of the written arguments, as reproduced above, shows\r\nthat the lessees have submitted that the land is being used for nonagricultural purposes. The entire argument is based upon use of the\r\nland for non-agricultural purposes. The nature of land is distinct\r\nfrom the use of the land. Since the land is agricultural land, its use\r\nfor non-agricultural purposes would not alter the nature of the land\r\nas an agricultural land. Section 82 of the 1987 Act mentions “any\r\nlease of agricultural land….”, therefore, the lease has to be of\r\nagricultural land irrespective of the use to which the lessee may put\r\nsuch agricultural land to. The language of the statute refers to\r\nnature of the land and not the use thereof. Therefore, even in terms <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the written arguments raised by the lessee before the Tribunal,\r\nthe use of land for non-agricultural purposes would be irrelevant for\r\nstatutory cancellation of the lease of agricultural lands under\r\nSection 82 of the 1987 Act.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">58. The distinction between agricultural and non-agricultural land\r\nsought to be drawn from the reading of Section 3 of the Andhra\r\nPradesh Non-Agricultural Assessments Act, 1963 repealed by the\r\nA.P Agricultural Land (Conversion for Non-Agricultural Purposes) Act,\r\n2006, is not tenable. The distinction between the categories of land\r\nleads to consequence of higher assessment in the case of nonagricultural land. The lessee has not led any evidence that they are\r\npaying levy as per the rates fixed under this statute as that of nonagricultural land.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>59. A learned Single Judge of the Andhra Pradesh High Court in a\r\njudgment reported as A.P. Punjabi Sabha, Hyderabad v. Joint\r\nCollector, Hyderabad\r\n25\r\n while considering the provisions of Inams\r\nAbolition Act held that for the purpose of this Act, if the land is put\r\nto non-agricultural purposes, it is not covered by the Act in\r\nquestion. The Collector would assume jurisdiction to decide the\r\nclaims under Section 10 only if the lands were put to agricultural\r\nuse.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>60. On the other hand, in respect of the 1987 Act, the Division Bench of\r\nthe High Court in Siddhartha Academy held that use of land for\r\nnon-agricultural purpose is immaterial for the purpose of statutory\r\ncancellation of lease deed, as provided under Section 82(1) of the\r\nsaid Act.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(c) Whether the parties went to trial with the knowledge that the land\r\nin question was agricultural land in the proceedings between the\r\nparties before the Endowments Tribunal?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>65. In Swamy Atmananda, it was held that if the parties went to the\r\ntrial knowing fully well the real issues involved and adduced\r\nevidence in such a case, without establishing prejudice, it would not\r\nbe open to a party to raise the question of non-framing of a\r\nparticular issue.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>66. Therefore, the parties were aware of the controversy about the\r\nnature of the land. Thus, the lessee cannot be permitted to turn <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">around to dispute the nature of land leased to them.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">67. We find merit in the argument raised by the lessees that the lease\r\nexecuted prior to the commencement of 1987 Act would not be\r\nannulled for the reason that there was no prior approval. The leases\r\nwere granted prior to the commencement of the 1987 Act but even\r\nunder the 1966 Act, Section 70 prohibited lease of the inam land if\r\nits term exceeded six years. The lease of land measuring 143 acres\r\nvide lease deed dated 23.7.1964; 257 acres 19 guntas vide lease\r\ndeed dated 14.9.1966 and 2 acres 32 guntas vide lease deed dated\r\n21.3.1969 were not preceded with any prior approval of the\r\ncompetent authority. Reliance is placed upon the note dated\r\n24.2.1964 but such note is part of the decision-making process as\r\nno approval was communicated to either the lessee or the lessor or\r\nto any person. In fact, the said communication is a note of Second\r\nSecretary to Government Home (Endowments-III) Department that\r\nlease for a term of 99 years cannot be construed as a transfer of\r\nownership of the endowed lands by outright sale and is prohibited\r\nunder Rule 331 of Hyderabad State Endowment Rules and\r\nRegulations. It is not a communication addressed either to the\r\nlessee or to the lessor or to any other person or institution. The\r\nregulation 331 prohibits the possession over and transfer of the\r\nnuzli lands (tax bearing lands) from generation to generation in\r\nfuture.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>69. The only approval of land measuring 173 acres and 19 guntas is\r\ndated 10.5.1976. Though there is a reference to the communication\r\nof the Commissioner Endowment dated 29.4.1975 in respect of\r\nthree previous lease deeds, but there is no communication to the\r\nMutt either of the letter dated 10.5.1976 or of 29.4.1975. Section\r\n82 does not make any exception of the lease granted with approval.\r\nThe approval is mentioned only in Section 75 of the 1987 Act. Even\r\nif such approval is treated to have been granted in respect of the\r\nentire land, the lease granted with approval is relevant only for the\r\npurposes of Section 75 of the 1987 Act and not for the purposes of\r\nSection 82 of the said Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>70. Similarly, the argument that the land now falls within the urban\r\nagglomeration in view of the enactment of the Urban Land (Ceiling\r\nand Regulation) Act, 1976 is again not tenable. Firstly, the said Act\r\nstands repealed on 22.3.1999. Still further, the mere fact that the\r\nland has come within the municipal limits would not make the land <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as non-agricultural land. It only means that the land within the\r\nmunicipal limits can be utilized or the buildings be constructed in\r\nterms of the provisions of the Municipal Laws applicable thereto.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>71. Similarly, the argument that the land in question falls with the Zonal\r\nDevelopment Plan for Kukatpally as per the communication of the\r\nHyderabad Urban Development Authority is again not tenable. The\r\nZonal Development Plan is future planning of the development of\r\nthe area. Thus, in future, the land can be used only according to\r\nZonal Development Plan but that does not mean that the\r\nagricultural nature of the land has ceased to exist. Therefore, the\r\nsaid communication is also not tenable.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n72. In Civil Appeal No. 7761 of 2014, there is a direction to consider the\r\nrequest of the lessee. However, Rule 15 of the Telangana Charitable\r\nand Hindu Religious Institutions and Endowments Immovable\r\nProperties and other Rights (Other than Agricultural Land) Leases\r\nand Licenses Rules, 2003 will have no application to the agricultural\r\nland in view of the fact that Section 82(3) and (4) is applicable only\r\nto the land and property which is not agricultural. Since the land\r\nhas been found to be agricultural, therefore, 2003 Rules would not\r\nbe applicable to the land in question. Thus, the direction to consider\r\nthe request of the lessee to consider the grant of lease under Rule\r\n15 is untenable.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">73. Consequently, Civil Appeal Nos. 7759-7760 of 2014 are dismissed\r\nwhereas Civil Appeal No. 7761 of 2014 is allowed, setting aside the\r\ndirection to consider the request of the lessee under Rule 15 of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Telangana Charitable and Hindu Religious Institutions and\r\nEndowments Immovable Properties and other Rights (Other than\r\nAgricultural Land) Leases and Licenses Rules, 2003.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3ec9c6c2d0a988093aed4114ff19bc93.jpg', 'db99f16f3b4bd445f352b994754b5deb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-15', 1, '', '', '2022-09-14 17:32:21', '2022-09-15 07:12:25');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2188, 'qwvgn5CTjUF6EZafJTYHy01YZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Concurrent findings can be interfered in second appeal only when the findings are vitiated on wrong test and on the basis of assumptions and conjectures and resultantly, there is an element of perversity. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shivali Enterprises Vs Godawari Thr LRS and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8904-8907 of 2010 decided on 12 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B.R. Gavai and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. Facts in brief giving rise to the present appeals are as under:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The appellant­ plaintiff through its partner Raj Kumar, entered into an agreement to sell dated 29th October 1983 with the respondents­defendants No. 1 to 4 with regard to the suit property, which was situated in the revenue estate of Chak Salarpur, Tehsil Dadri, District Ghaziabad (U.P.), at the rate of Rs. 2900/­ per Bigha. Though the suit property initially was in the State of U.P., vide notification of the Central Government dated 15th September 1983, it became a part of the State of Haryana. At the time of agreement to sell dated 29th October 1983, earnest amount of Rs.50,000/­ was paid by the appellant­ plaintiff to the respondents­ defendants.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. Due to a dispute between the State of U.P. and Haryana, the aforesaid sale deed could not be executed in favour of the appellant­ plaintiff. Therefore, another agreement to sell was executed between the parties on 23rd August 1985. At the time of execution of the said agreement, an additional amount of Rs.1,00,000/­ was paid by the appellant ­plaintiff to the respondents­ defendants. It is not in dispute that the total amount payable as per the terms of the agreement to sell dated 29th October 1983 was Rs. 1,65,000/­ out of which, an amount of Rs. 1,50,000/­ was duly received by the respondents ­defendants on or before 23rd August 1985. As per the terms of the agreement(s) to sell, the remaining sale price was to be paid before the SubRegistrar at the time of execution and registration of sale deed. It is not in dispute that the physical possession of the suit property was also delivered to the appellant ­plaintiff by the respondents­ defendants at the time of execution of the agreement(s) to sell. It is also not in dispute that the appellant ­plaintiff is thereafter in continuous possession of the suit property.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. As per the terms of the agreement(s) to sell, the respondents ­defendants were required to obtain Income­Tax Clearance (for short “ITC”) Certificate and to also get the revenue records mutated to show them as the owners inasmuch as the Central Government was shown as the owner mistakenly. The agreement to sell further stipulated that, in case of default by the respondents­ defendants, the appellant­ plaintiff was at liberty to get the sale deed executed and registered.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17. It would thus be clear that this Court has held that, though it is not necessary to formulate a substantial question of law, the jurisdiction under Section 41 of the Punjab Act would permit only such decisions to be considered in second appeal which are contrary to law or to some custom or usage having the force of law, or when the courts below have failed to determine some material issue of law or custom or usage having the force of law. The Court held that second appeal is not a forum where the court is to re­examine or re­appreciate the question of fact settled by the trial court or the Appellate Court. It could thus clearly be seen that though in view of Section 41 of the Punjab Act, it is not necessary to frame a substantial question of law, the jurisdiction of the High Court under second appeal cannot be exercised for re­appreciation of evidence.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18. A perusal of the plaint filed by the appellant­ plaintiff would reveal that the appellant­ plaintiff has specifically referred to the terms of the agreement(s) to sell. He has specifically stated that the respondents­ defendants have received an amount of Rs.1,50,000/­. He has further specifically stated that the respondents­ defendants have delivered the actual possession of the suit property to him. It is averred that after the respondents­ defendants obtained the requisite ITC Certificate and got the revenue records corrected, they were required to serve a notice upon the appellant ­plaintiff informing him about the same having been done. After the receipt of such notice, the appellant ­plaintiff was required to make the balance payment and get the sale deed executed. The appellant­ plaintiff was also given liberty to use the suit property in any manner so as to plant trees, raise construction, install tubewells etc.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>26. We find that the learned Single Judge of the High Court has erred in interfering with the concurrent findings of fact recorded by the trial court as well as by the Appellate Court. The trial court as well as the Appellate Court had specifically found on the basis of the evidence that, though as per the terms and conditions of the agreement(s) to sell, the sale deed was to be executed only after the respondents defendants obtained the ITC Certificate and got the revenue records corrected, the appellant ­plaintiff was compelled to file the suit since the respondents ­defendants were trying to alienate the suit property.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>27. It is pertinent to note that the appellant­ plaintiff has specifically averred that, though the respondents­ defendants had neither obtained the ITC Certificate nor had the revenue records corrected, they were threatening to dispossess him and create 3rd party rights over the suit property. In these circumstances, the appellant­ plaintiff was constrained to file the suit. In the written statement, the respondents defendants have specifically stated that they were entitled to create 3rd party rights. In this factual situation, the concurrent findings of the trial court and the Appellate Court that the appellant­ plaintiff was justified in filing the suit could not have been faulted with.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>28. The respondents­ defendants cannot be permitted to blow hot and cold at the same time. On one hand, they contended that the suit could not have been filed without getting the ITC Certificate and correction of revenue records, whereas on the other hand, they assert their right to alienate the suit property.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>30. In the present case, apart from there being no perversity in the concurrent findings of fact, there is not even an observation in the judgment of the High Court to that effect. The judgment of the learned Single Judge of the High Court also does not discuss the issue of perversity vis-­à-­vis the concept of justice. As such, the said judgment, in our view, is not applicable to the facts of the present case.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>32. In the present case, it would be seen that out of an agreed amount of Rs.1,65,000/­, the appellant­ plaintiff has already paid an amount of Rs.1,50,000/­ on or before 23rd August 1985. He was already put in possession at the time of execution of the agreement(s) to sell. The balance sale consideration that was to be paid was only about 10% of the total agreed amount. Though the sale deed was to be executed upon the respondents­ defendants getting the ITC Certificate and getting the revenue records corrected in the year 1986, in view of their greed since the prices were escalating, the respondents­ defendants had tried to create 3rd party rights. In these circumstances, the appellant­ plaintiff was required to file the suit. The respondents ­defendants have also asserted in their written statement that they were entitled to alienate the suit property. Having accepted the agreement(s) to sell and the receipt of an amount of Rs. 1,50,000/­ out of the total amount of Rs.1,65,000/­, the respondents­ defendants could not have been permitted to take a contrary stand that on one hand, the suit could not be filed before the ITC Certificate was obtained and the revenue records were corrected, and on the other hand that they were entitled to alienate the suit property.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>33. We are of the considered view that the learned Single Judge of the High Court has erred in interfering with the concurrent findings of fact arrived at by the trial court and the Appellate Court upon correct appreciation of documentary as well as oral evidence.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>34. In the result, we pass the following order:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The appeals are allowed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5798e2cfc2b8385805efa5a7855975af.jpg', 'bcf573dace3c75a6b0c1ec94c13b5c75.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-15', 1, '', '', '2022-09-14 18:10:28', '2022-09-15 10:39:24'),
(2189, '8pkE61P31rwljmmYbMvoDs8eV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When specific performance of contract is dependent on performance of another contract by a person who is not party to the suit, Court cannot decree the suit. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Raman by LRS Vs R. Natarajan.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6554 of 2022 decided on 13 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Indira Banerjee and Justice V. Ramasubramanian.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The suit for specific performance of an Agreement of Sale of an immovable property, filed by the respondent herein, was decreed by the Trial Court but the said decree was reversed by the First Appellate Court. However, the High Court reversed the Judgment and decree of the First Appellate Court and restored the decree for specific performance granted by the Trial Court. Aggrieved by the same, the legal representatives of the original defendant are on appeal.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10. What was recorded as above was not actually an answer to the substantial question of law, even if we construe what was framed, to be a substantial question of law. The above finding is actually a finding of fact. Apart from that, the High Court also went beyond the substantial question of law framed by it and proceeded to hold that the suit was not barred by limitation. The High Court opined that the time for performance of the obligations under the Agreement was fixed as 11 months from the date on which the defendant entered into an agreement with his brother’s wife for the purchase of a land to be used as pathway. However, the defendant did not enter into any agreement with his brother’s wife. On the other hand, the defendant chose to deny the very execution of Agreement of Sale in his reply notice dated 04.04.2007. Therefore, the High Court held that limitation started running from the date of refusal and that the suit filed in November, 2007 was within the period of limitation.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. The mistakes committed by the High Court were manifold. First, the High Court framed a question which was actually a question of fact which involved appreciation of evidence and not a substantial question of law. As a consequence, the answer given by the High Court was only a finding of fact. Next, the High Court reversed the finding of the First Appellate Court on the question of limitation, without framing a substantial question of law and without even referring to the statutory provisions</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13. The defendant raised the question of limitation, on the basis of the fact that the fourth endorsement was made beyond a period of three years from the date of the third endorsement. Such a defence was based upon Section 18(1) of the Limitation Act, 1963.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15. But in the entire memorandum of grounds of second appeal filed by the respondent­herein before the High Court, there was no whisper or reference to Article 54 of the Schedule to the Limitation Act, 1963. The only substantial question of law framed by the High Court at the time of entertaining the second appeal was not about limitation revolving around Article 54 of the Schedule to the Limitation Act. Therefore, the High Court could not have answered the question of limitation in favour of the respondent herein, (i) without framing any substantial question of law; and (ii) without even a reference to Article 54.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17. The High Court ought to have seen that the specific performance of the Agreement in question comprised of two parts namely, (i) the defendant entering into an agreement with his brother’s wife for the purchase of a land for providing access to the land agreed to be sold under the suit Agreement of Sale; and (ii) the defendant thereafter executing a sale deed conveying the property covered by the suit Agreement of Sale.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18. Since the defendant’s brother’s wife was not a party to the suit agreement of sale, the Court cannot compel her to enter into an agreement with the defendant. In other words, the performance of the first part of the obligation, which we have indicated in the preceding paragraph, cannot be compelled by the Court, as it depended upon the will of a third party</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19. From the pleadings on record, it appears that the case on hand will not even be covered by sub­sections (2), (3) & (4) of Section 12 of the Specific Relief Act. Since it is stated very clearly in the suit Agreement of Sale that the land covered by the Agreement will not have any access, unless the defendant entered into an agreement with his brother’s wife, it is clear that none of the exceptions contained in sub­sections (2), (3) and (4) of Section 12 will apply.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20. Even the limited rights conferred by Section 13(1)(b) of the Specific Relief Act are not available to the respondent, as there was no legal right in the defendant to compel 3rd parties to convey their land to him for the purpose of providing a pathway to the land agreed to be sold to the respondent herein. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>21. Therefore, the High Court committed a grave error in law in granting a decree for specific performance. Hence the appeal is allowed, the impugned judgment of the High Court is set aside and the relief of specific performance claimed by the respondent is rejected. However, there will be a decree directing the appellants to pay to the respondent, the amount of Rs.1,44,400/­ paid by the respondent, with interest @ 9% p.a. from the date of filing of the suit, till the date of repayment. The parties shall bear their respective costs throughout.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6799385363dbfdc2fab85bd492bb4d89.jpg', '9d4c068cc7300960d253102b34103f17.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-15', 1, '', '', '2022-09-14 23:52:03', '2022-09-15 12:37:23'),
(2191, 'Q2uw7IaSqdK2fROn3UZm2nTPK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sale deed executed in violation of an order of injunction passed by a competent Court is unlawful under Section 23 of the Contract Act and the purchaser cannot claim any right or equity under the sale transaction. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Hinduja Renewables Two Private Limited Vs Kum Rahul Patil and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.F.A 201501 of 2022 decided on 6 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice C.M. Poonacha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. It is the case of the Plaintiffs that the\r\nDefendant No.1 was their grand father and had\r\nacquired ancestral properties as mentioned in the\r\nschedule to the plaint through a partition amongst his\r\ntwo brothers and that they are the joint family\r\nproperties of the Plaintiffs and Defendant Nos.1 to 5.\r\nThe Defendant No.1 being the Kartha of the family\r\nwas managing the suit properties even during the\r\nlifetime of the father of the Plaintiffs and no legal\r\npartition took place between the father of the Plaintiffs\r\nand Defendants 1 to 5. Hence, the suit properties are <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the joint family properties having common ownership\r\nand common possession. The Plaintiffs also state that\r\nthe revenue records pertaining to the suit schedule\r\nproperties are in the name of the Defendant Nos.1\r\nand 2 and the wife of the Defendant No.1; that the\r\nDefendant Nos.1 and 2, without the knowledge of the\r\nPlaintiffs or their mother have entered into an\r\nagreement to alienate the first item of the suit\r\nschedule properties to Defendant No.6 (hereinafter\r\nreferred to as the \'Company/Defendant No.6\') and\r\nthat the said agreement was made without the\r\nknowledge of the Plaintiffs. After coming to know of\r\nthe agreement, the mother of the Plaintiffs demanded\r\npartition and since the same was refused, the suit was\r\nfiled.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">7. Upon service of notices, the Defendant\r\nNos.1 to 5 entered appearance before the Trial Court\r\nthrough their Counsel and filed written statement,\r\nwherein, while admitting that the suit schedule\r\nproperties were the ancestral properties of the\r\nDefendant No.1, they contend that there was an oral\r\nfamily partition between the Defendant Nos.1 to 5 and\r\nthe father of the Plaintiffs in the year 2015; that in the\r\nsaid oral partition, an extent of 35 acres 25 guntas of\r\nland in Sy.No.176 of Mallat village, Manvi Taluk (now\r\nSirwar), Raichur District, fell to the share of the father\r\nof the Plaintiffs and the said property was deliberately\r\nnot included in the schedule to the plaint; it is </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">pursuant to the said oral partition that the said\r\nproperty has been mutated in the name of the father\r\nof the Plaintiffs; the father of the Plaintiffs had also\r\navailed a loan of a sum of `80,00,000/-; the first item\r\nof the suit schedule properties fell to the share of the\r\nDefendant No.2 and therefore, the said property was\r\nmutated in the name of the Defendant No.2 and\r\nhence, he sold the said property vide registered\r\nAgreement of Sale dated 18.6.2021 in favour of the\r\nCompany, whereunder, he also parted with\r\npossession. Various other contentions were also\r\ntaken in the written statement, which are not referred\r\nto herein since the same is not relevant for the\r\npurpose of adjudication of the present appeal.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. I have given my anxious consideration to\r\nthe contentions put forth by both the parties and have <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">perused the entire material available on record. The\r\nquestions that arise for consideration are:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>i) Whether IA.No.2/2022 filed by the Appellant\r\nunder Order XLI Rule 27 of CPC is required to be\r\nallowed?</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>\r\nii) Whether the order dated 14.1.2022 passed on\r\nIA.No.5 by the Trial Court is liable to be interfered\r\nwith?</i></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. Admittedly, the suit schedule properties\r\nhave been inherited by the Defendant No.1. The\r\nDefendant Nos.1 to 5 also do not dispute the fact that\r\nthe Plaintiffs have a right in the suit schedule\r\nproperties. It is their categorical case that there was\r\nan oral partition in the year 2015 and pursuant to the\r\nsame, the father of the Plaintiffs was allotted an\r\nextent of 35 acres 25 guntas of land in Sy.No.176 of\r\nMallat village, Manvi Taluk (now Sirwar), Raichur\r\nDistrict; the revenue records of the said property were\r\ntransferred in his name; he had also mortgaged the\r\nsaid property and availed a loan. It is their further\r\ncase that the Defendant No.2 is solely entitled to the\r\nfirst item of the suit schedule properties and the\r\nrevenue records stand in his name and he was thus\r\nentitled to deal with the same in any manner.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. It is clear from the aforementioned that by\r\nvirtue of the registered Agreement of Sale dated\r\n18.6.2021, the Company cannot claim any right, title\r\nor interest in the first item of the suit schedule\r\nproperties. It is forthcoming from the sequence of\r\nevents, as noticed above, that although Company was\r\naware of the right asserted by the Plaintiffs in respect\r\nof the first item of the suit schedule properties, the\r\nCompany proceeded to transact further with the land\r\nin question and proceeded with various acts in\r\nimplementing the project undertaken by it. The\r\nCompany having noticed the rights asserted ought to\r\nhave taken sufficient steps to mitigate the risk.\r\nHowever, it has failed to do so. Various circumstances <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sought to be complained of by the Company, has been\r\ncreated by its own acts and it is now not open to the\r\nCompany to rely on the said circumstances to seek for\r\nsetting aside of the order dated 14.1.2022 passed on\r\nIA.No.5.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30. In the case of Jehal Tanti (supra), the\r\nHon\'ble Supreme Court noticing Section 23 of the\r\nIndia Contract Act, 1872, has held that a Sale Deed\r\nexecuted in the teeth of an order of injunction passed\r\nby the Trial Court is unlawful thereby being violative\r\nof Section 23.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. In view of the law as laid down in the case\r\nof Jehal Tanti (supra) and Surjit Singh (supra) and\r\nthe Sale Deed having been registered when the order\r\nof injunction was in force, as well as the manner in\r\nwhich the Sale Deed was registered on 4.4.2022 as\r\nnoticed in para 22 hereinabove, the Company cannot\r\nderive any benefit from the Sale Deed dated 4.4.2022</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34. The Trial Court after noticing the case of\r\nthe parties, has recorded a categorical finding of fact\r\nthat the Plaintiffs have made out a prima facie case\r\nand also held that it is Plaintiffs who will be put to loss\r\nand hardship in getting their share, if the Defendant\r\nNo.6 proceeds with the construction work and the\r\nbalance of convenience lies more in favour of the\r\nPlaintiffs as compared to Defendant No.6 – Company.\r\nThe Appellant – Defendant No.6 has failed in\r\ndemonstrating as to how the finding recorded by the\r\nTrial Court is illegal or perverse and requires\r\ninterference in this appeal. No case is made out to\r\nwarrant interference with the exercise of discretion by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Trial Court in its order dated 14.1.2022 passed on\r\nIA.No.5.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 35. Having regard to the foregoing, the second\r\nquestion framed at para 17 above is answered in the\r\nnegative.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">36. Under the circumstances, the appeal fails\r\nand is accordingly, dismissed</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In view of the dismissal of the main appeal,\r\nIA.No.3/2022 does not survive for consdieration.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>No costs. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '47e7a05b81de4bcea99cbf6ab721de87.JPG', '20b7cb76b2f77630509fa43c2bad1c73.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-16', 1, '', '', '2022-09-15 18:56:29', '2022-09-16 12:54:06'),
(2192, 'aau5SJayOJxXOcVzDCZS0hPKs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Supreme Court upholds levy of Rs. one crore penalty on DKG Buildcon Private Ltd under Section 15A of the Securities and Exchange Board of India Act, 1992 for adopting escapist tactics to frustrate the investigations of SEBI. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>DKG Buildcon Private Ltd Vs The Adjudicating and Enquiry Officer S.E.B.I.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1742 of 2009 decided on 14 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ajay Rastogi and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. An investigation was carried out by Securities and Exchange\r\nBoard of India (‘SEBI’, for short) in the matter of purchase and sale of\r\nscrip and manipulation of share prices of M/s Shonkh Technology\r\nInternational Ltd. (‘STIL’ for the sake of convenience), a Company in\r\nwhich both the appellants had previously held shares. On noticing\r\nunusual price movement in the shares of STIL, SEBI conducted an\r\ninvestigation into the buying, selling and dealings in the shares of the\r\nCompanies under the provisions of SEBI (Prohibition of Fraudulent\r\nand Unfair Trade Practices relating to Securities Market) Regulations,\r\n1995 (hereinafter referred to as ‘Regulations’). Investigations revealed\r\nthat one M/s Shreejee Yatayat India Limited (for short, ‘SYIL’), a listed\r\ncompany had acquired the entire Undertaking of STIL and in turn SYIL\r\nhad allotted its shares to the shareholders of STIL. The appellant in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Civil Appeal No. 1742 of 2009 was allotted 10,00,000 shares of SYIL\r\nwhile the appellant in Civil Appeal No. 5833 of 2009 was allotted\r\n1,43,000 shares. Having taken over the business activities of STIL,\r\nSYIL changed its name to STIL with effect from 27.07.2000.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Investigations further revealed that the appellants had\r\ntransferred the shares of STIL to a Company under the name and style\r\nof Sai Mangal Investrade Pvt. Ltd. (for short, ‘SMIPL’). Similarly,\r\nentities like Classic Credit Limited, Goldfish Computers Ltd. and\r\nLuminant Investment Private Ltd. had also received shares of STIL from\r\nvarious entities which had been allotted shares by SYIL. SMIPL and the\r\nother entities referred to above were all controlled and managed by a\r\nperson named, Ketan Parekh, who had rigged the securities market in\r\nthe years 2000 and 2001.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. In view of the aforesaid investigations, SEBI initiated proceedings\r\nagainst several entities including the appellants herein. By a separate\r\nOrder dated 16.10.2007, SEBI found that large quantities of shares of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">STIL were made available to entities associated with Ketan Parekh\r\nduring the period between October, 2000 and April, 2001 and that\r\nfacilitated them to create artificial volumes in the said scrip in the\r\nsecurities market. SEBI also found that the entities associated with\r\nKetan Parekh had sold a large number of shares of STIL in the\r\nsecurities market in a synchronized manner with a view to create an\r\nartificial market in the said shares. SEBI came to the conclusion that\r\nthe appellants and other entities had facilitated Ketan Parekh and his\r\ncompanies in manipulating the securities market and had thereby\r\nviolated Regulation 4 of the Regulations. SEBI restrained them from\r\naccessing the securities market for a period of five years and also\r\nprohibited them from buying, selling or dealing in securities either\r\ndirectly or indirectly for the same period. SEBI found that a series of\r\nunauthorized activities starting from the allotment of shares of STIL to\r\nvarious people including Ketan Parekh entities through a web of\r\ntransfers virtually wrecked the integrity of the securities market with a\r\nview to make unfair gains.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. Having heard the learned counsel for the respective parties, it is\r\nnoted that the appellants herein are challenging the Orders dated\r\n07.01.2009 of the SAT, Mumbai in Appeal No. 106 of 2006 and Appeal\r\nNo. 133 of 2006 respectively upholding the Orders dated 28.11.2003\r\nand 31.12.2003 passed by the AO respectively in each case, imposing\r\na monetary penalty of rupees one crore on each appellant under <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 15A(a) of the 1992 Act for failing to comply with the summons\r\nissued to the appellants for the production of documents and\r\nfurnishing of information during the course of certain investigations\r\nbeing carried out by SEBI during the period of 2000-2007 in relation\r\nto suspicious purchase and sale of scrip and manipulation of share\r\nprices of STIL.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">32. On a perusal of the facts and circumstances of the case, it is\r\nevident that the appellants had first violated the summons in August,\r\n2001 and in June, 2002 respectively. Thereafter, SEBI issued </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">numerous summons, giving the appellants opportunities to appear and\r\nproduce the documents and furnish the information as required. But,\r\nthe appellants failed to respond to any of the summons issued during\r\nthe period of 2001-2002, during the course of the investigation.\r\nThereafter, SEBI issued fresh summons on 1.04.2003 in respect of the\r\nappellant in Civil Appeal No. 1742 of 2009 and on 09.04.2003 in\r\nrespect to the appellant in Civil Appeal No. 5833 of 2009 for the\r\nappellants to cooperate with the investigation. The non-compliance of\r\nthe fresh summons dated 01.04.2003 and 09.04.2003 respectively, in\r\nour view, constituted a fresh offence committed by the appellants.\r\nThus, the amended provisions of Section 15A(a) of the 1992 Act as\r\namended w.e.f. 29.10.2002 would apply when levying the penalty on\r\nthe appellants in respect of the summons issued subsequent to the\r\naforesaid amendment.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. Section l5A(a) of the 1992 Act provides that if any person who is\r\nrequired under the Act or any Rules or Regulations made thereunder\r\nfails to furnish any document, return or report to the SEBI, he shall be\r\nliable to a penalty of rupees one lakh for each day of failure, and, if\r\nsuch failure continues it would be rupees one lakh per day of failure or\r\nrupees one crore, whichever is less. Thus, rupees one crore is the\r\nmaximum penalty that can be levied if the failure as contemplated <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under the aforesaid provision crosses one hundred days; otherwise, it\r\nis as per the number of days of failure upto one hundred days.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34. Thus, the penalty of rupees one crore as levied by the AO and\r\nupheld by the SAT is justified and within the precincts of the relevant\r\nprovision. Applying the said provision to the facts for the present cases,\r\nit is clear that the appellants had failed to comply with the summons\r\ndated 01.04.2003 and 09.04.2003 respectively. Thereafter, the AO had\r\npassed its order levying penalty on the appellants on 28.11.2003 and\r\non 31.12.2003 respectively. Since, the duration of the default of noncompliance committed by both the appellants was over a period of 100\r\ndays from the date of issue of the summons in each case, the AO had\r\nrightly applied Section 15A(a) of the 1992 Act, more specifically in\r\nregard to the maximum limit of penalty that could be imposed under\r\nthe provision, i.e. rupees one crore</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>40. Taking into consideration the severity of offences found to have\r\nbeen committed by the appellants and other entities, and the noncooperative attitude of the appellants during the course of the\r\ninvestigation in attempting to obstruct the same, the quantum of\r\npenalty imposed under Section 15A(a) of the 1992 Act is justified and\r\nwith effective consideration of the factors listed in Section 15J of the\r\n1992 Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>44. The learned counsel for the respondent has also rightly placed\r\nreliance on the decision of this Court in MBL and Company Limited\r\nvs. Securities and Exchange Board of India (2022) SCC OnLine SC\r\n754 to submit that the quantum of penalty of rupees one crore levied\r\nby the AO under Section 15A(a) of the 1992 Act was justified, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">proportionate and in conformity with the omissions on the part of the\r\nappellants inasmuch as the appellants had repeatedly adopted\r\nescapist tactics to effectively frustrate the investigations of SEBI, and\r\nthus requires no interference by this Court in exercise of its powers\r\nunder Section 15Z of the 1992 Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Thus, based on the aforesaid judgements relied on by the learned\r\ncounsel for the respondent, it is clear that the quantum of penalty\r\nimposed by the AO is proportionate and within the confines of the\r\nprovisions of Section 15A(a) read with Section 15J of the 1992 Act, and\r\nrequires no interference by this Court.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>45. Furthermore, a bare reading of Section 11C (3) of the 1992 Act\r\nmakes it clear that an Investigating Authority appointed by SEBI to\r\ninvestigate the affairs of any persons may require such person <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>“associated with the securities market in any manner to furnish such\r\ninformation to, or produce such books, or registers, or other documents,\r\nor record before him or any person authorized by it, in this behalf as it\r\nmay consider necessary, if the furnishing of such information or the\r\nproduction of such books, or registers, or other documents, or record is\r\nrelevant or necessary for the purposes of its investigation”. </i></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the\r\npresent case, the appellants were under investigation by SEBI for its\r\nalleged involvement in aiding and abetting Ketan Parekh and his\r\ncompanies in manipulating the securities market. In view of the same,\r\nthe appellants would squarely fall under the scope of “persons\r\nassociated with the securities market in any manner” under Section\r\n11C(3) of the 1992 Act. The authority of the Investigating Authority to\r\ndirect such persons to appear before him and furnish information or\r\nproduce documents as is required for an investigation is provided in\r\nSection 11C (3) of the 1992 Act.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">46. It is also pertinent to mention that Section 19 of the 1992 Act\r\nprovides that the SEBI may delegate to any member, officer of the SEBI\r\nor any other person, such of its powers and functions under this Act\r\n(except the powers under Section 29) as it may deem necessary. Thus,\r\nwhen the appellants failed to comply with the directions issued under\r\nSection 11C (3) of the 1992 Act and failed to produce the required\r\ndocuments and information, the Investigating Authority, being a </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">delegated Authority of SEBI, was empowered to levy the penalty as\r\nprovided in Section 15A(a) of the 1992 Act. Hence, we find no merit in\r\nthese appeals. The appeals are dismissed.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>47. Parties to bear their respective costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '65679c9d493df379ad7c4ed18b4c7653.jpg', '61c1ccc140fd75037d61626281980bdd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-16', 1, '', '', '2022-09-15 19:31:36', '2022-09-16 09:00:42');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2193, '7Rd3zhRZXVbF74MV0JdzPiFr6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'False declaration with regard to the assets of a candidate, his/her spouse or dependents, constitutes corrupt practice irrespective of the impact of such a false declaration on the election of the candidate. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rukmini Madegowda Vs The State Election Commission and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6576 of 2022 decided on 14 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Uday Umesh Lalit, Justice Indira Banerjee and Justice Ajay Rastogi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. This Special Leave Petition under Article 136 of the Constitution\r\nof India is against a judgment and order dated 26th May 2021 passed\r\nby the Hon’ble High Court of Karnataka at Bengaluru, upholding the\r\njudgment and order dated 14th December 2020 of the Principal District\r\nand Sessions Judge, Mysuru, allowing Election Petition No.4 of 2018\r\nand setting aside the election of the Appellant to the Mysore Municipal\r\nCorporation as Councillor from Ward No.36-Yeraganahalli, Karnataka. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Sometime in 2018, the Appellant filed her nomination for election\r\nto the Mysore Municipal Corporation, as Councillor from Ward No.36-\r\nYeraganahalli in Karnataka, which was reserved for Backward Class-B\r\n(Women), along with a declaration by way of an affidavit, furnishing\r\ndetails of the movable and immovable properties held by the Appellant\r\nas well as her spouse and dependents, which is hereinafter referred to\r\nas the “Affidavit of Assets”.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. In August 2018, elections to the Mysore Municipal Corporation\r\nwere held. On 3rd September 2018, the results of said elections were\r\ndeclared. The Appellant was declared as successfully elected\r\nCouncillor from the said Ward No.36, that is Yeraganahalli.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The Respondent No.4, an unsuccessful candidate, filed Election\r\nPetition No.4 of 2018 in the Court of Principal District and Sessions\r\nJudge, Mysuru under Sections 33 and 34 of the Karnataka Municipal\r\nCorporations Act, 1976, hereinafter referred to as the “KMC Act”.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n6. In the said Election Petition, the Respondent No.4 alleged that\r\nthe Appellant had, in her Affidavit of Assets, falsely declared that her\r\nhusband did not possess any immovable property, and that by giving\r\nsuch false declaration, the Appellant had indulged in corrupt practices\r\nto get the benefit of reservation under the Category of Backward ClassB (Women)<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>38. In our considered view, a false declaration with regard to the\r\nassets of a candidate, his/her spouse or dependents, constitutes\r\ncorrupt practice irrespective of the impact of such a false declaration\r\non the election of the candidate. It may be presumed that a false\r\ndeclaration impacts the election.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>45. Under Section 39 of the KMC Act, corrupt practices include undue\r\ninfluence. The definition of undue influence in Clause 2 of Section 123\r\nof the Representation of the People Act 1951, (hereinafter referred to\r\nas “the 1951 RP Act”) has been incorporated in Section 39(2) of the\r\nKMC Act.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>49. In compliance with the requirements of the said Notifications\r\ndated 14th July 2003 and 19th June 2018, the Appellant filed an affidavit.\r\nIt is admitted by the Appellant that she has made incorrect statements\r\nin the said affidavit in that</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) she falsely stated that her husband’s\r\nname was ‘Nanjegowda’ instead of stating his real name ‘Madegowda’,</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) she has stated that her husband did not own any movable or <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">immovable properties although he owned large number of movable\r\nproperties.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>55. Corrupt Practices have been defined in Section 39(2) of the KMC\r\nAct to include ‘undue influence’ as defined in Section 123(2) of the\r\n1951 RP Act. Section 123(2) of the 1951 RP Act came up for\r\ninterpretation by this Court in Lok Prahari (supra), where this Court\r\nheld that the non-disclosure would amount to ‘undue influence’ as\r\ndefined under the Representation of People Act. The definition of\r\n‘undue influence’ as used in Section 123(2) of 1951 RP Act is also\r\nadopted by Section 39(2) of the KMC Act. Therefore, the nondisclosure of assets in the municipal elections would also amount to\r\n‘undue influence’ and consequently to ‘corrupt practice’.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>63. The question of whether the Election Commission had power to\r\nissue directions to the candidates to file affidavits disclosing the assets\r\nof their spouses, in the absence of any specific provision under the\r\nKMC Act or the Rules framed thereunder is no longer res integra. The\r\nquestion is squarely covered by the law laid down by this Court in\r\nUnion of India v. Association for Democratic Reforms and Ors.\r\n(supra), where this Court had directed the Election Commission to\r\nsecure to voters, inter alia, information pertaining to assets not only of\r\nthe candidates but also of their spouse and dependents.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>67. This Court has interpreted Article 324(1) to confer wide powers\r\non the Election Commission relating to superintendence, direction and\r\ncontrol of preparation of electoral roles and/or the conduct of elections <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to Parliament and to the legislature of every State provided, of course,\r\nthat the directions are not contrary to law. The interpretation of Article\r\n324(1) to confer wide powers on the Election Commission to issue\r\ndirections in respect of elections to Parliament and State legislatures\r\nwould apply to Article 243-ZA(1). Article 243-ZA(1) has to be\r\nconstrued to confer powers on the State Election Commission to issue\r\ndirections related to superintendence, direction and control of the\r\npreparation of electoral roles or for conduct of elections to\r\nmunicipalities.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>70. However, in light of the law declared by this Court in\r\nAssociation for Democratic Reforms (supra), we do not see any\r\nlegal or normative impediment for the State Election Commission to\r\nissue directions requiring disclosure of assets of the candidate, his/her\r\nspouse and dependent associates by way of affidavit. In issuing the\r\nnotification dated 14th July 2003, the Election Commission has not\r\nencroached into the legislative domain of the Karnataka State\r\nLegislature. The direction, as contained in the notification dated 14th\r\nJuly 2003 had been accepted by the Appellant. Having affirmed a false\r\naffidavit, it does not lie in the mouth of the Appellant to contend that\r\nher election should not be set aside on the ground of corrupt practice\r\nunder Section 35(1) of the KMC Act.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>72. There can be no doubt that the Parliament and the respective\r\nState legislatures are supreme and not bound by any advice of the\r\nElection Commission. It is equally true that the Election Commission\r\nhas to act within the four corners of law made by the Parliament and/or\r\nthe concerned State Legislature, as the case may be. However, in our\r\nconsidered opinion, the Election Commission has issued the notification\r\ndated 14th July 2003 within the contours of law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>74. Purity of election at all levels, be it election to the Union\r\nParliament or a State Legislature or a Municipal Corporation or a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Panchayat is a matter of national importance in which a uniform policy\r\nis desirable in the interest of all the States. A hypertechnical view of\r\nthe omission to incorporate any specific provision in the KMC Election\r\nRules, similar to the 1961 Rules, expressly requiring disclosure of\r\nassets, to condone dishonesty and corrupt practice would be against\r\nthe spirit of the Constitution and public interest.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n75. This Court is of the view that there are no grounds to interfere\r\nwith or set aside the impugned judgment and order of the High Court,\r\naffirming the judgment and order of the Principal District and Sessions\r\nJudge, Mysuru, allowing Election Petition No. 4 of 2018 and setting\r\naside the election of the Appellant.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>76. The appeal is, therefore, dismissed. All pending applications are,\r\naccordingly, disposed of</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0c84f46b6f59f7c31cfda48c50fa61c6.jpg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-16', 1, '', '', '2022-09-15 20:05:57', '2022-09-16 10:00:34'),
(2194, 'uHBx0r2Tp8X2VNW42nFNMJyqW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Merely because an institution has a right to establish an educational institution does not mean that such an application has to be allowed. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pharmacy Council of India Vs Rajeev College of Pharmacy and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6681 of 2022 decided on 15 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B.R. Gavai and Justice Pamidighantam Sri Narasimha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. By the said judgments and orders, the aforesaid three High Courts of Karnataka, Delhi and Chhattisgarh had allowed the writ petitions filed by the respondents­ institutions, which were, in turn, filed challenging the Resolutions communications of the appellant­PCI dated 17 July 2019 and 9th September 2019 and dismissed the Writ Appeals filed by the PCI. Vide Resolution/Communication dated 17th July 2019, the appellant­PCI had resolved to put a moratorium on the opening of new pharmacy colleges for running Diploma as well as Degree courses in pharmacy for a period of five years beginning from the Academic Year 2020­ 2021. Vide Resolution/communication dated 9th September 2019, the aforesaid moratorium was modified, thereby exempting its application to </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i) Government Institutions; </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii) Institutions in North Eastern region; and </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iii) States/Union Territories where the number of institutions offering D. Pharm and B. Pharm courses (both combined) is less than 50. Additionally, vide the said Resolution/communication dated 9th September 2019, the institutions which had applied for opening colleges offering D.Pharm and/or B. Pharm courses for 2019­ 2020 academic session were allowed to apply for conducting diploma as well as degree courses in Academic Session 2020­ 2021 and existing approved pharmacy institutions were allowed to increase the intake capacity as per PCI norms and/or to start additional pharmacy course(s). </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>32. It is thus clear, and in all fairness, not even disputed by the appellant­PCI, that the moratorium was issued by the Central Council of the appellant­PCI in its executive powers and not by framing any regulation, as provided under Sections 10 and 18 of the said Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>33. The moot question, therefore, that requires consideration, is as to whether the moratorium, as imposed by the Central Council of the appellant­PCI, could have been imposed by the said Resolution, which is in the nature of an executive instruction of the Central Council.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>35. It could thus clearly be seen that the Constitution Bench of this Court in the aforesaid case, in unequivocal terms, holds that in view of Article 19(1)(g) and Article 26 of the Constitution of India, all citizens and religious denominations are conferred with a right to establish and maintain educational institutions.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>37. It could thus be seen that the Constitution Bench in Islamic Academy of Education (supra) holds that the State would be entitled to impose restrictions and make regulations both in terms of Article 19(1)(g) and Article 30 of the Constitution of India for maintaining excellence in the standard of education. It has been held that regulatory measures are necessary for ensuring orderly, efficient and sound administration.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>41. It is thus clear that though there is a fundamental right to establish educational institutions, the same can be subject to reasonable restrictions, which are found necessary in the general public interest. However, the question that requires to be answered is as to whether the same can be done by executive instructions or not</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>43. It could thus be seen that this Court has categorically held that a citizen cannot be deprived of the said right except in accordance with law. It has further been held that the requirement of law for the purpose of clause (6) of Article 19 of the Constitution can by no stretch of imagination be achieved by issuing a circular or a policy decision in terms of Article 162 of the Constitution or otherwise. It has been held that such a law must be one enacted by the legislature.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>52. It could thus be seen that this Court has approved paragraph 1326 and 1333 (pp. 775 and 779) of Halsbury\'s Laws of England, 4th Edition, to the effect that a statutory corporation can do only such acts as are authorised by the statute creating it and that the powers of such a corporation cannot extend beyond what the statute provides expressly or by necessary implication. Though in the said case, this Court held that the said principle is not applicable inasmuch as the Central Board has the power to frame regulations relating to the conditions of service of the Bank\'s staff, the said principle will indeed be applicable to the case at hand.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>53. Shri Maninder Singh, learned Senior Counsel, further submitted that the preamble of the said Act itself used the word “regulate” and the word “regulate” would include within its ambit the power to “prohibit”. Strong reliance is placed on the judgment of this Court in the case of Star India Private Limited (supra). However, it is to be noted that in the said case, certain clauses of the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017 notified on 3­3­2017, made under Section 36 of the Telecom Regulatory Authority of India Act, 1997, together with the Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff Order, 2017 notified on the same date were under challenge. In the present case, what is being sought to be done was done by a Resolution of the Central Council of the appellant­PCI and not by any Regulation framed under the provisions of the said Act. As such, the judgment of this Court in the case of Star India Private Limited (supra) is not applicable to the facts of the present case. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>55. Since we have held that the Resolutions/communications dated 17th July 2019 and 9th September 2019 of the Central Council of the appellant­PCI, which are in the nature of executive instructions, could not impose restrictions on the fundamental right to establish educational institutions under Article 19(1)(g) of the Constitution of India, we do not find it necessary to consider the submissions advanced on other issues. We find that the Resolutions/communications dated 17th July 2019 and 9th September 2019 of the Central Council of the appellant­PCI are liable to be struck down on this short ground. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>57. It is further to be noted that the applications seeking approval for D. Pharm and B. Pharm courses are required to be accompanied by a “No Objection Certificate” (“NOC”) from the State Government and consent of affiliation from the affiliating bodies. While scrutinizing such applications, the Council can always take into consideration various factors before deciding to allow or reject such applications. Merely because an institution has a right to establish an educational institution does not mean that such an application has to be allowed. In a particular area, if there are more than sufficient number of institutions already existing, the Central Council can always take into consideration as to whether it is necessary or not to increase the number of institutions in such an area. However, a blanket prohibition on the establishment of pharmacy colleges cannot be imposed by an executive resolution. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>58. In the result, the appeals filed by the Pharmacy Council of India are dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>59. The writ petitions filed by the institutions shall stand disposed of in terms of the above. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>60. Pending application(s), if any, shall also stand disposed of.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9f21b1138c5663c3ddf91e025e7b9499.jpg', '1a2daf8e5f70d2285d66b89ff68f6906.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-19', 1, '', '', '2022-09-16 16:28:02', '2022-09-19 06:38:08'),
(2201, 'Bq2eEYxLrpiIyWo2tsXmuWMN0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Second petition under Section 482 Cr.P.C is maintainable where the first petition was dismissed as withdrawn. Madhya Pradesh High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Munni Devi Vs Devendra.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.CR.C 675 of 2012 decided on 6 September 2012.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Anil Sharma.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">The petitioner has filed this second petition under Section 482 of Cr. P.C. against the order dated 20.6.2011 passed by learned 3 Additional Sessions Judge, Bhind in Criminal Revision No. 77/2011 reversing the order dated 18.3.2011 passed by learned Judicial Magistrate First Class, Lahar, District Bhind, sending the complaint for its investigation to the police under Section 156(3) of Cr. P.C. on the ground that the complaint has been filed for offence under Sections 467, 468/34 and 120-B of IPC, out of which, the offence punishable under Sections 467 and 468 are triable by the court of Sessions, therefore, the learned Judicial Magistrate First Class had no jurisdiction to send the complaint for its investigation to the police under Section 156(3) of Cr. P.C. The complainant has filed the present petition for quashing the order of learned lower revisional court on the ground that the order of learned trial court has been reversed on the basis of judgment reported in ILR 2008 MP-2337.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>It has been held by the Apex Court in the matter of Devarapalli Lakshminarayana Reddy v. Narayana Reddy, AIR 1976 SC 1672, power to order the police under section 156(3) is different from powers to take cognizance conferred by section 200(1). The two operate in distinct spheres at different stages. The first is exercisable at the precognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. The power under section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under section 190(1)(a).&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In view of foregoing and considering the legal propositions held by Hon\'ble the Apex Court that proceeding under Section 156(3) of Cr. P.C. is different, one is applicable at the pre-cognizance stage while second is applicable at the post-cognizance stage, therefore, the order of learned Magistrate sending the complaint for inquiry/investigation to the police concerned is not against the provisions of law. Hence, the learned revisional court has committed error in reversing the order passed by the learned Judicial Magistrate First Class, by the impugned order. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petition is allowed and the order impugned dated 20.6.2011 is hereby quashed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7e70356407382de642887a575942be13.jpeg', '95ac4e872fd46786157523d88de2ea1e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-19', 1, '', '', '2022-09-19 16:51:20', '2022-09-19 19:54:20');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2195, 'LWFyfWtpqioljQfXRjyc1JT7R', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque bounce case. Offence by Companies. If the accused proves that the offence was committed without his knowledge or that he had exercised due diligence to prevent commission of such offence, he will not be liable for punishment. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>S.P. Mani and Mohan Dairy Vs Snehalatha Elangovan<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1586 of 2022 decided on 16 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Surya Kant and Justice J.B. Pardiwala.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. The facts of this case are plain and simple. The appellant herein (original complainant) is engaged in the business of milk and milk products. The respondent herein is one of the partners of a Partnership Firm running in the name of Sira Marketing Services. The firm used to purchase milk and milk products from the appellant/complainant on credit basis. The appellant has to recover an amount of Rs. 10,71,434.60/­ (Rs. Ten Lakh Seventy One Thousand Four Hundred Thirty Four and Sixty paise) from the partnership firm. The firm issued a cheque duly signed by the original accused No. 02 (partner/authorised signatory) in favour of the appellant for the amount of Rs. 10,00,000/­ (Rs. Ten Lakh only) dated 05.05.2017. The cheque came to be dishonoured as there was no sufficient balance in the account maintained by the firm. No sooner, the bank intimated the appellant herein that the cheque could not be cleared due to insufficient funds than the appellant herein issued a statutory notice dated 14­08­2017 to the firm and the two partners of the firm. Despite service of notice to the firm as well as the two partners (accused persons) the amount was not paid to the appellant and therefore, the appellant was left with no other option but to file the complaint in the Judicial Magistrate Fast Track Court No. II, Erode for the offence punishable under Section 138 r/w 141 of the NI Act which came to registered as the STC No. 583 of 2017.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. The respondent herein (original accused No. 03/partner) preferred an application under 482 of the Code in the High Court and prayed that the criminal proceedings instituted against her may be quashed as she has no liability under the law. The principal argument of the respondent herein before the High Court was that much before the cheque came to be issued, the firm had been dissolved. The accounts of the firm were also settled on 13­02­2017 following the dissolution. The High Court quashed the proceedings against the respondent herein mainly on the ground that there was nothing to indicate as to how and in what manner the respondent at the relevant point of time was in­charge and responsible for the conduct of the business of the firm. The High Court took the view that the complaint can be prosecuted as against the respondent herein only if the allegations made in the complaint fulfils the requirements of Section 141 of the NI Act. The High Court took the view that merely by reciting the words used under Section 141 of the NI Act in the complaint no vicarious liability can be fastened on the partner of the firm.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15. Having heard the learned counsel appearing for the parties and having gone through the materials on record the only question that falls for our consideration is whether the High Court committed any error in passing the impugned order?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19. Thus, from the aforesaid the following averments in the complaint are evident:­</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(a) Accused No.1 is a Partnership Firm, the accused Nos. 2 and 3 resply are the partners and in charge and responsible for the day­to­day affairs of the firm, the accused Nos. 2 and 3 are regularly looking after and actively taking part in the day­to­day business of the firm;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(b) In order to discharge the part liability, the accused No. 2 on behalf of the firm and with the consent and knowledge of the accused No. 3 issued the cheque drawn on the Tamilnad Mercantile Bank Ltd., Thiruvanmiyur Branch, Chennai­.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>22. Thus, the plain reading of the impugned order passed by the High Court as aforesaid would indicate that the proceedings came to be quashed essentially on the ground that there was nothing to indicate that in what manner the respondent herein was in­charge and responsible for the day­to­day affairs of the firm so as to make her vicariously liable for the alleged offence with the aid of Section 141 of the NI Act. To put it in other words, the High Court proceeded on the footing that mere averments in the complaint as regards the role of the respondent as a partner in the firm is not sufficient.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>24. Evidently, the gist of Section 138 is that the drawer of the cheque shall be deemed to have committed an offence when the cheque drawn by him is returned unpaid on the prescribed grounds. The conditions precedent and the conditions subsequent to constitute the offence are drawing of a cheque on the account maintained by the drawer with a banker, presentation of the cheque within the prescribed period, making of a demand by the payee by giving a notice in writing within the prescribed period and failure of the drawer to pay within the prescribed period. Upon fulfilment of these requirements, the commission of the offence which may be called the offence of ‘dishonour of cheque’ is complete. If the drawer is a company, the offence is primarily committed by the company. By virtue of the provisions of sub­section (1) of Section 141, the guilt for the offence and the liability to be prosecuted and punished shall be extended to every person who, at the time the offence was committed, was in charge of and was responsible to the company for the conduct of its business; irrespective of whether such person is a director, manager, secretary or other officer of the company. It would be for such responsible person, in order to be exonerated in terms of the first proviso, to prove that the offence was committed without his knowledge or despite his due diligence. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>33. Thus, the legal principles discernible from the aforesaid decision of this Court may be summarised as under:­ </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(a) Vicarious liability can be fastened on those who are incharge of and responsible to the company or firm for the conduct of its business. For the purpose of Section 141, the firm comes within the ambit of a company;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(b) It is not necessary to reproduce the language of Section 141 verbatim in the complaint since the complaint is required to be read as a whole;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(c) If the substance of the allegations made in the complaint fulfil the requirements of Section 141, the complaint has to proceed in regards the law.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(d) In construing a complaint a hyper­technical approach should not be adopted so as to quash the same.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(e) The laudable object of preventing bouncing of cheques and sustaining the credibility of commercial transactions resulting in the enactment of Sections 138 and 141 respectively should be kept in mind by the Court concerned.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(f) These provisions create a statutory presumption of dishonesty exposing a person to criminal liability if payment is not made within the statutory period even after the issue of notice.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(g) The power of quashing should be exercised very sparingly and where, read as a whole, the factual foundation for the offence has been laid in the complaint, it should not be quashed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(h) The Court concerned would owe a duty to discharge the accused if taking everything stated in the complaint is correct and construing the allegations made therein liberally </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>36. Now, the logical question that would follow is who would be liable through the company for this offence? Can the company itself be prosecuted for this offence? Answering this question, the Section 141 says, ‘every person who was in charge of’ and ‘was responsible to the company for the conduct of the business’ shall be deemed to be guilty of the offence. This concept of vicarious liability has been explained by this Court in Sabhitha Ramamurthy v. RBS Channabasavaradhya,</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>40. The principles discernible from the aforesaid decision of this Court in the case of Ashutosh Ashok Parasrampuriya (supra) is that the High Court should not interfere under Section 482 of the Code at the instance of an accused unless it comes across some unimpeachable and incontrovertible evidence to indicate that the Director/partner of a firm could not have been concerned with the issuance of cheques. This Court clarified that in a given case despite the presence of basic averments, the High Court may conclude that no case is made out against the particular Director/ partner provided the Director/partner is able to adduce some unimpeachable and incontrovertible evidence beyond suspicion and doubt.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>43. In the case on hand, we find clear and specific averments not only in the complaint but also in the statutory notice issued to the respondent. There are specific averments that the cheque was issued with the consent of the respondent herein and within her knowledge. In our view, this was sufficient to put the respondent herein to trial for the alleged offence. We are saying so because the case of the respondent that at the time of issuance of the cheque or at the time of the commission of the offence, she was in no manner concerned with the firm or she was not in­charge or responsible for day­-to-­day affairs of the firm cannot be on the basis of mere bald assertion in this regard. The same is not sufficient. To make good her case, the respondent herein is expected to lead unimpeachable and incontrovertible evidence. Nothing of the sort was adduced by the respondent before the High Court to get the proceedings quashed. The High Court had practically no legal basis to say that the averments made in the complaint are not sufficient to fasten the vicarious liability upon the respondent by virtue of Section 141 of the NI Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>44. We may also examine this appeal from a different angle. It is not in dispute, as noted above, that no reply was given by the respondent to the statutory notice served upon her by the appellant. In the proceedings of the present type, it is essential for the person to whom statutory notice is issued under Section 138 of the NI Act to give an appropriate reply. The person concerned is expected to clarify his or her stance. If the person concerned has some unimpeachable and incontrovertible material to establish that he or she has no role to play in the affairs of the company/firm, then such material should be highlighted in the reply to the notice as a foundation. If any such foundation is laid, the picture would be more clear before the eyes of the complainant. The complainant would come to know as to why the person to whom he has issued notice says that he is not responsible for the dishonour of the cheque. Had the respondent herein given appropriate reply highlighting whatever she has sought to highlight before us then probably the complainant would have undertaken further enquiry and would have tried to find out what was the legal status of the firm on the date of the commission of the offence and what was the status of the respondent in the firm. The object of notice before the filing of the complaint is not just to give a chance to the drawer of the cheque to rectify his omission to make his stance clear so far as his liability under Section 138 of the NI Act is concerned.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>46. When in view of the basic averment process is issued the complaint must proceed against the Directors or partners as the case may be. But, if any Director or Partner wants the process to be quashed by filing a petition under Section 482 of the Code on the ground that only a bald averment is made in the complaint and that he is really not concerned with the issuance of the cheque, he must in order to persuade the High Court to quash the process either furnish some sterling incontrovertible material or acceptable circumstances to substantiate his contention. He must make out a case that making him stand the trial would be an abuse of process of court. He cannot get the complaint quashed merely on the ground that apart from the basic averment no particulars are given in the complaint about his role, because ordinarily the basic averment would be sufficient to send him to trial and it could be argued that his further role could be brought out in the trial. Quashing of a complaint is a serious matter. Complaint cannot be quashed for the asking. For quashing of a complaint, it must be shown that no offence is made out at all against the Director or Partner.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>47. Our final conclusions may be summarised as under:­</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>a.) The primary responsibility of the complainant is to make specific averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no legal requirement for the complainant to show that the accused partner of the firm was aware about each and every transaction. On the other hand, the first proviso to sub­section (1) of Section 141 of the Act clearly lays down that if the accused is able to prove to the satisfaction of the Court that the offence was committed without his/her knowledge or he/she had exercised due diligence to prevent the commission of such offence, he/she will not be liable of punishment.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>b.) The complainant is supposed to know only generally as to who were in charge of the affairs of the company or firm, as the case may be. The other administrative matters would be within the special knowledge of the company or the firm and those who are in charge of it. In such circumstances, the complainant is expected to allege that the persons named in the complaint are in charge of the affairs of the company/firm. It is only the Directors of the company or the partners of the firm, as the case may be, who have the special knowledge about the role they had played in the company or the partners in a firm to show before the court that at the relevant point of time they were not in charge of the affairs of the company. Advertence to Sections 138 and Section 141 respectively of the NI Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the officers in charge of the affairs of the company/partners of a firm to show that they were not liable to be convicted. The existence of any special circumstance that makes them not liable is something that is peculiarly within their knowledge and it is for them to establish at the trial to show that at the relevant time they were not in charge of the affairs of the company or the firm.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>c.) Needless to say, the final judgement and order would depend on the evidence adduced. Criminal liability is attracted only on those, who at the time of commission of the offence, were in charge of and were responsible for the conduct of the business of the firm. But vicarious criminal liability can be inferred against the partners of a firm when it is specifically averred in the complaint about the status of the partners ‘qua’ the firm. This would make them liable to face the prosecution but it does not lead to automatic conviction. Hence, they are not adversely prejudiced if they are eventually found to be not guilty, as a necessary consequence thereof would be acquittal.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>d.) If any Director wants the process to be quashed by filing a petition under Section 482 of the Code on the ground that only a bald averment is made in the complaint and that he/she is really not concerned with the issuance of the cheque, he/she must in order to persuade the High Court to quash the process either furnish some sterling incontrovertible material or acceptable circumstances to substantiate his/her contention. He/she must make out a case that making him/her stand the trial would be an abuse of process of Court.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>49. In the result, this appeal succeeds and is hereby allowed with no order as to costs. The impugned order passed by the High Court is hereby set aside.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>50. Pending application, if any, also stands disposed of.</b></font></p>', 'c25fb812fa96e2c63cb778b1ec46d53a.jpg', 'cd3893d9e7034c520fe20035bc2af830.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-17', 1, '', '', '2022-09-17 01:16:17', '2022-09-17 06:41:59'),
(2196, 'D5duzNQrPyzPl0AqfedpSdej6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'If a document having direct nexus with Court proceeding is fabricated outside Court and produced later in Court proceeding, inquiry under Section 340 Cr.P.C can be initiated for the offence punishable under Section 195 IPC. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\">Latha Rajanikanth Vs State of Karnataka and others.</span></b><span style=\"font-family: Verdana, sans-serif; color: rgb(102, 102, 102);\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\">Criminal Petition 10145 of 2021 decided on 2 August 2022.</span></b><span style=\"font-family: Verdana, sans-serif; color: rgb(102, 102, 102);\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\">Justice M. Nagaprasanna.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\"><br></span></b><span style=\"font-family: Verdana, sans-serif; color: rgb(102, 102, 102);\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\">The petitioner is before this Court calling in question proceedings in C.C.No.8355 of 2021 pending before I Additional Chief Metropolitan Magistrate, Bengaluru arising out of Crime No.217 of 2015 registered for offences punishable under Sections 196, 199, 420 and 463 read with Section 34 of the IPC. The order of taking cognizance dated 27-03-2021, for the aforesaid offences, is what drives the petitioner to this Court.</span></b><span style=\"font-size: 10.5pt; font-family: Verdana, sans-serif; color: rgb(102, 102, 102);\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\">2. Shorn of unnecessary details, facts in brief for consideration of the lis, are as follows:-</span></b><span style=\"font-size: 10.5pt; font-family: Verdana, sans-serif; color: rgb(102, 102, 102);\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\">The 2nd respondent M/s Ad Bureau Advertising Private Limited is the complainant. Financial transactions between the complainant and M/s Mediaone Global Entertainment Limited which was represented by its Director one J.Murali Manohar generated disputes with regard to finances in connection with a Tamil cinema titled Kochadian. The Director of the said film was the petitioner’s daughter and the petitioner’s husband was the lead protagonist. The said financial dispute generated into wide publicity as it was in respect of a cinema that had its lead protagonist, a popular star in the Tamil cinema. All the electronic media wanted to publish the dispute between the Mediaone Global Entertainment Limited on the ground that the petitioner-wife of the said protagonist had executed a guarantee on behalf of Mediaone Global Entertainment Limited in favour of the complainant and had failed to honour it as the film went into losses.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\">3. It is contended that in order to capitalize the image of the star various media outlets both print and electronic began to get in touch with the petitioner, her family members, her managers etc. seeking her comments on the allegations so made by the complainant. The petitioner made a call to all the media not to publish anything without proper verification. Despite the request of the petitioner, it is contended that the media both electronic and print, began to publish and broadcast information of allegations made by the 2nd respondent/complainant, which according to the petitioner affected her dignity and defamed the name of her family. At that juncture, the petitioner knocked the doors of the civil Court at Bangalore against all the news agencies – 70 in number – seeking a restraint against all the 70 channels in publishing news with regard to allegations made by the complainant upon the petitioner or her family. A suit in O.S.No.9312 of 2014 was filed on 01-12-2014 and a detailed order of injunction was granted in favour of the petitioner on 02-12-2014. The Court again hearing the parties on 13-02-2015 returned the plaint for want of territorial jurisdiction and consequently, dissolved the order of injunction that was in operation. The petitioner called in question the said order before this Court in M.F.A.No.2879 of 2015 which also came to be dismissed on 24-02-2016 for default. Both these orders have become final.</span></b><span style=\"font-size: 10.5pt; font-family: Verdana, sans-serif; color: rgb(102, 102, 102);\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\">5. The allegation in the complaint made by the complainant was that a particular document which was not in existence in a media house and which also does not exist was produced before the civil Court at Bangalore in order to get jurisdiction to entertain the suit and take an order of injunction. The said document was forged and the petitioner had initiated proceedings under the aforesaid provision of law by producing a document which is forged before a court of law and thereby cheated the complainant and the Court. The petitioner called in question registration of the said complaint and consequent direction to investigate before this Court in Criminal Petition No.4291 of 2015. This Court by its order dated 10-03-2016 holding it to be pure civil dispute quashed the entire proceedings and gave liberty to the petitioner to either seek damages or action under Section 138 of the Negotiable Instruments Act. This was called in question by the complainant before the Apex Court in Criminal Appeal No.854 of 2018. A three Judge Bench of the Apex Court set aside the order passed by this Court and held that it was a triable case and the Court ought not to have quashed the entire complaint. It is after the order of the Apex Court, the proceedings continued before the learned Magistrate. The Police after investigation filed a charge sheet in the matter on 27.02.2021 for the aforesaid offences and the learned Magistrate takes cognizance thereto by his order dated 27-03-2021 and issued summons to the petitioner, accused therein. It is this action of the learned Magistrate that drives the petitioner again to this Court in the subject petition.</span></b><span style=\"font-size: 10.5pt; font-family: Verdana, sans-serif; color: rgb(102, 102, 102);\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\">9. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record. In furtherance whereof, the following points arise for my consideration:</span></b><span style=\"font-size: 10.5pt; font-family: Verdana, sans-serif; color: rgb(102, 102, 102);\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\">(i) Whether the present petition, second in line, under Section 482 of the Cr.P.C. would be maintainable?</span></b><span style=\"font-size: 10.5pt; font-family: Verdana, sans-serif; color: rgb(102, 102, 102);\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\">(ii) Whether the order taking cognizance dated 27.03.2021 by the learned Magistrate suffers from want of jurisdiction?</span></b><span style=\"font-size: 10.5pt; font-family: Verdana, sans-serif; color: rgb(102, 102, 102);\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\">10. Point No.(i): Whether the present petition, second in line, under Section 482 of the Cr.P.C. would be maintainable?</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\">12. The petitioner had earlier called in question registration of crime in Crime No.217 of 2015 which went up to the Apex Court resulting in an order being passed by the Apex Court as afore-quoted. The petitioner did not knock the doors of this Court immediately again. The petitioner after the learned Magistrate taking cognizance of the offences on the final report being filed by the police again knocks the doors of this Court. Therefore, the circumstances that lead the petitioner to the doors of this Court is taking of cognizance and issuance of summons on the final report/charge sheet. On this changed circumstance, the second petition under Section 482 of the Cr.P.C., notwithstanding the earlier one, even it were to be dismissed, is maintainable.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\">13. The petitioner has filed the present petition on the score that the order of taking cognizance runs counter to the statute and, therefore, cognizance could not have been taken. In the light of the submission being made that it is contrary to the statute, I deem it appropriate to consider the petition on its merit despite the order of the Apex Court, as quoted hereinabove, wherein the Apex Court holds that it was a case for trial. The Apex Court at the time it rendered its order, the present case was at the stage of registration of crime and was pending. In the light of other judgments rendered by the Apex Court on the point, this petition would be maintainable and the hearing of the contentions on their merit would become available. The first point is thus answered against the 2nd respondent/complainant holding that the second petition under Section 482 of the Cr.P.C. was maintainable.<br><br><o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\">14. Point No.(ii): Whether the order taking cognizance dated 27.03.2021 by the learned Magistrate suffers from want of jurisdiction?</span></b><span style=\"font-size: 10.5pt; font-family: Verdana, sans-serif; color: rgb(102, 102, 102);\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\"><br></span></b><span style=\"font-size: 10.5pt; font-family: Verdana, sans-serif; color: rgb(102, 102, 102);\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\">20. In the light of the judgment rendered by the Five Judge Bench in IQBAL SINGH MARWAH being considered in the subsequent judgments in BANDEKAR BROTHERS and BHIMA RAZU PRASAD, if the document that is produced in the case at hand is considered, it does not have a reasonable nexus with the issue that was put forth before the concerned Court, notwithstanding the fact that the document was allegedly created outside the Court proceeding and was produced before the Court in the civil proceeding instituted by the present petitioner. Taking of cognizance for offences quoted supra would be a bar under Section 195(1)(b)(i) of the Cr.P.C. Section 195(1)(b)(i) clearly refers to offences punishable under Sections 193 to 196, 199, 200, 205 to 211 said to have been committed in or in relation to any proceeding in any Court. Therefore, the offences so alleged under Sections 196 or 199 would stand barred from the learned Magistrate taking cognizance, unless the procedure under Section 340 of the Cr.P.C. is followed by the concerned Court, where the evidence or the document is said to be placed.</span></b><span style=\"font-size: 10.5pt; font-family: Verdana, sans-serif; color: rgb(102, 102, 102);\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\"><br></span></b><span style=\"font-size: 10.5pt; font-family: Verdana, sans-serif; color: rgb(102, 102, 102);\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\">21. The other offences alleged against the petitioner are the ones punishable under Sections 420 and 463 read with 34 of the IPC. Section 420 of the IPC requires the ingredients as obtaining in Section 415 of the IPC to be present. Section 415 of the IPC mandates that there should be inducement from the hands of the accused to the victim to part with any property and the transaction should be tainted with dishonest intention right from its outset. No such ingredient as is needed has even a mention in the allegation. Therefore, the allegation for the offence punishable under Section 420 of the IPC has been recklessly included without there being any foundation laid in the complaint.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\"><br></span></b><span style=\"font-size: 10.5pt; font-family: Verdana, sans-serif; color: rgb(102, 102, 102);\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\">22. The next offence is with regard to Section 463 of the IPC. Section 463 of the IPC though has its mention in Section 195(1)(b)(ii), in the light of the document forged and created outside when the matter was not custodia legis, the issue would stand covered by the judgment rendered in the case of IQBAL  SINGH  MARWAH  (supra). As  held  by  the Apex Court in the case of BANDEKAR BROTHERS (supra), it cannot be said that offences alleged under Section 193 to 196 as found in 195(1)(b)(i) are so inseparable that it would take within its sweep the offence as indicated under Section 195(1)(b)(ii) as well. If it is not so inseparable, IQBAL SINGH MARWAH is what would occupy the field. In the considered view of this Court Section 463 of the IPC as is alleged is not so inseparable that would bar the Magistrate from taking cognizance of the offence except on a proceeding initiated under Section 340 of the Cr.P.C. Therefore, the allegation under Section 463 of the IPC so made against the petitioner and the cognizance so taken by the learned Magistrate only insofar as it concerns Section 463 of the IPC cannot be interfered with. But, cognizance being taken for offences under Sections 196 and 199 of the IPC warrant appropriate interference.<br><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><span style=\"font-size: 10.5pt; font-family: Verdana, sans-serif; color: rgb(102, 102, 102);\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\">ORDER</span></b><span style=\"font-size: 10.5pt; font-family: Verdana, sans-serif; color: rgb(102, 102, 102);\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span lang=\"EN-US\" style=\"font-family: Verdana, sans-serif; color: rgb(34, 34, 34);\">Criminal Petition is allowed in part.</span></b><span style=\"font-size: 10.5pt; font-family: Verdana, sans-serif; color: rgb(102, 102, 102);\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Verdana, sans-serif;\"> </span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: Verdana, sans-serif;\"> </span></p>', 'b7c55da1cf452d9708db2f8b0b9e4745.jpeg', '339d0d45a5ed99ed8a8dd8efa67a88a4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-17', 1, '', '', '2022-09-17 01:35:38', '2022-09-17 12:53:47');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2198, 'Xa1JMcqnGI4O7oEEA1qZz25Vk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Guide Car used for transporting Hot Coke after it is processed in the Coke Oven Battery cannot be considered to be a part of the Coke Oven Battery for the purpose of availing Modvat credit. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Steel Authority of India Limited Vs Commissioner, Central Excise and Customs Bhubaneswar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 7269 of 2009 decided on 16 September 2022<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice Krishna Murari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The facts leading to the present appeal for the purpose of issue\r\ninvolved in the present appeal in a nutshell are as under:\r\nA show cause notice dated 9.5.2000 was issued to the appellant\r\nseeking to deny Modvat credit amounting to Rs.3,09,78,465/- availed by\r\nthe appellant on capital goods, i.e., ‘Guide Car’ during the month of\r\nMarch, 2000. As per the show cause notice, the Modvat credit on ‘Guide\r\nCar’ was not available since it was classifiable under Chapter subheading 8603.00 of the Central Excise Tariff Act, 1985 (hereinafter\r\nreferred to as the ‘Tariff’).<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.2 Considering the fact that in the case of supplier, the ‘Guide Car’\r\nwas classified under Chapter sub-heading 8603.00, the Adjudicating\r\nAuthority was of the opinion that the appellant shall not be entitled to the\r\nModvat credit on ‘Guide Car’ considering Rule 57Q of the Central Excise\r\nRules, 1944 (hereinafter referred to as the ‘Rules 1944’). The\r\nAdjudicating Authority disallowed the credit amounting to Rs.\r\n1,71,60,376/- wrongly availed by the appellant during the month of\r\nMarch, 2000 which included the Modvat credit availed by the appellant\r\non ‘Guide Car’. The Adjudicating Authority – Commissioner also\r\nimposed the penalty of Rs. 5,00,000/- under Rule 173Q of the Rules\r\n1944. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.3 Feeling aggrieved and dissatisfied with the Order-in-original\r\npassed by the Commissioner – Adjudicating Authority, disallowing the\r\ncredit amounting to Rs. 1,71,60,376/- and imposing penalty of Rs.\r\n5,00,000/-, the appellant preferred an appeal before the learned\r\nTribunal. By the impugned judgment and order, the learned Tribunal has\r\nconfirmed/upheld the demand of Rs. 45,86,664/- being the Modvat credit\r\navailed by the appellant on ‘Guide Car’. The learned Tribunal has\r\nreduced the penalty to Rs. 1,00,000/-.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.4 Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order passed by the learned Tribunal upholding the demand of Rs.\r\n45,86,664/- being the Modvat credit availed by the appellant on ‘Guide <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Car’ and penalty to the extent of Rs. 1,00,000/-, the assessee has\r\npreferred the present appeal.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. We have heard learned counsel for the respective parties at\r\nlength. At the outset, it is required to be noted that in the case of\r\nsupplier, ‘Guide Car’ was classified under Chapter sub-heading 8603.00.\r\nAs per the settled position of law, classification of a product done at the\r\nconsignor’s end shall be final and that cannot be changed/questioned at\r\nthe consignee’s end. Therefore, ‘Guide Car’ shall be treated and/or\r\nconsidered as classifiable under Chapter sub-heading 8603.00 of the\r\ntariff.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6.1 The short question which is posed for the consideration of this\r\nCourt is, whether the appellant is entitled to Modvat credit under Rule\r\n57Q of the Rules 1944 on ‘Guide Cars’ treating the same as\r\n‘components’ of Coke Oven Battery, as claimed?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The appellant has claimed the Modvat credit under Rule 57Q of\r\nthe Rules 1944 on ‘Guide Car’. As per Rule 57Q with respect to goods\r\nfalling under Chapter 84 as mentioned at serial No. 2 in the Table\r\nattached with the Schedule to the Tariff, there shall be credit of duty paid\r\non capital goods used by the manufacturer. As observed hereinabove,\r\n‘Guide Car’ shall not fall under Chapter 84. Therefore, it is the case on\r\nbehalf of the appellant that it will fall at serial No. 5 of the Table, namely,\r\n‘components’.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Therefore, the short question which is posed for the consideration\r\nof this Court is, whether ‘Guide Car’ can be said to be ‘component’ of\r\nCoke Oven Battery as claimed by the appellant?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Considering the process and the manner in which and/or for the\r\npurpose for which the ‘Guide Car’ is used, by no stretch of imagination, it\r\ncan be said to be a ‘component’ of Coke Oven Battery. It cannot be said\r\nthat without the ‘Guide Car’ the Coke Oven Battery shall not be\r\nfunctional. The ‘Guide Car’ is being used for the purpose of transporting\r\nthe hot coke after it is processed in the Coke Oven Battery. Therefore,\r\n‘Guide Car’ can be said to be a different equipment distinct from the\r\nCoke Oven Battery and cannot be considered to be a part of the Coke\r\nOven Battery. In that view of the matter, the appellant shall not be\r\nentitled to the Modvat credit on ‘Guide Car’ as ‘component’ and/or part of\r\nCoke Oven Battery as claimed by the appellant. The Adjudicating\r\nAuthority as well as the learned Tribunal have rightly confirmed the\r\ndemand of Modvat credit availed by the appellant on ‘Guide Cars’. We\r\nare in complete agreement with the view taken by the Adjudicating\r\nAuthority as well as the learned Tribunal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. However, at the same time and in the facts and circumstances of\r\nthe case, the penalty was not justified at all. The appellant bonafidely\r\nbelieved that the goods would fall under Chapter sub-heading 8428.90\r\nand/or that the ‘Guide Car’ can be said to be a ‘component’ of the Coke\r\nOven Battery. Therefore, the order of penalty of Rs.1,00,000/- imposed\r\nby the Tribunal is required to be quashed and set aside.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Now so far as the submission on behalf of the appellant that the\r\nclassification of the ‘Guide Car’ under Chapter sub-heading 8603.00\r\nshall be applicable prospectively and shall not be applicable\r\nretrospectively with respect to supply in the month of November, 1999\r\nand the reliance placed upon the decision of this Court in the case if\r\nCotspun Limited (supra) is concerned, the aforesaid has no substance.\r\nIt is required to be noted that it was a case of self-assessment by the\r\nsupplier and the supplier classified the ’Guide Car’ under Chapter subheading 8428.90, though it was classifiable under Chapter sub-heading\r\n8603.00. That thereafter the appropriate authority classified the ‘Guide\r\nCar’ under Chapter sub-heading 8603.00. Therefore, it will relate back to\r\nthe original claim and/or relate back to the date of supply/selfassessment.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11.1 Now so far as the reliance placed upon the decision of this Court in\r\nthe case of Cotspun Limited (supra) is concerned, the same shall not\r\nbe applicable to the facts of the case on hand. In the case before this\r\nCourt, it was a case of an approved classification list sought to be\r\ncorrected subsequently and to that it is observed that the levy of excise\r\nduty on the basis of an approved classification list is the correct levy, at\r\nleast until the correctness of the approval is questioned by the issuance\r\nof a show cause notice to the assessee. Therefore, on facts, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">aforesaid decision shall not be applicable to the facts of the case on\r\nhand.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. In view of the above and for the reasons stated above, the present\r\nappeal with respect to Modvat credit claimed by the appellant on ‘Guide\r\nCar’ is hereby dismissed. The Adjudicating Authority as well as the\r\nlearned Tribunal have rightly denied the Modvat credit to the appellant on\r\n‘Guide Car’. The learned Tribunal has rightly confirmed the demand of\r\nRs. 45,86,664/- being the Modvat credit availed by the appellant on\r\n‘Guide Car’. The present appeal is dismissed so far as the confirmation\r\nof demand of Modvat credit availed by the appellant on ‘Guide Car’.\r\nHowever, the order of penalty imposed by the Adjudicating Authority,\r\nmodified by the learned Tribunal to Rs. 1,00,000/- is hereby quashed and\r\nset aside. To that extent, the present appeal is partly allowed. In the\r\nfacts and circumstances of the case, there shall be no order as to costs</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'aaae62be0de6c7c07ed6a09edee3c5c8.jpeg', '1b93d9ca13cd73c2833c4e015d77e48a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-19', 1, '', '', '2022-09-17 01:51:37', '2022-09-19 10:24:53'),
(2199, 'aaREDjwUlMjGmIDPC2suIRX0c', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'If a document has been fabricated for the purposes of usage in a Court and thereafter used in a Court, Section 195 of Cr.P.C. would come into play and only the Court can initiate the proceedings against the offender. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Lakshmidevi and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 5075 of 2020 decided on 24 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. The petitioners are before this Court seeking for</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.1.<span style=\"white-space: pre;\">	</span>Quashing the<span style=\"white-space: pre;\">	</span>complaint dated 27.01.2020 (Annexure-B) filed by the respondent No.2 before the respondent No.1 for offences punishable under Section 417, 419, 420, 468, 471, 193, 120B read with Section 34 of the Indian Penal Code, 1860.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><br></font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">1.2.</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem; white-space: pre;\">	</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Quashing the FIR in crime No.8/2020 (Annexure - A) registered by the respondent No.1 against the petitioners herein for offences punishable under Sections 417, 419, 420, 468, 471, 193, 120B read with Section 34 of the Indian Penal Code, 1860.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>In the complaint, it is alleged that</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.1.<span style=\"white-space: pre;\">	</span>Smt.Sita Ramaswamy was the owner of Sy.No.37, New Sy.No.141/1 and Sy.No.141/B situated in Pattanduru Agrahara Village. She formed a layout comprising of sites and sold the same in favour of various persons by way of registered sale deeds in the year 1994-95, who in turn sold the same under registered sale deeds to the vendors of the Complainant, and the Complainant purchased the said sites in the year 2003 from his vendors under registered sale deeds. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.2.<span style=\"white-space: pre;\">	</span>The petitioners, in collusion with one Vinod Kumar, fabricated the family tree and death certificate of deceased Smt. Sita Ramaswamy to show petitioner No.1 as her only legal heir and in collusion with the Assistant Commissioner, Bangalore North Sub-Division, petitioners and Vinod Kumar got the aforesaid properties mutated in the name of petitioner No.1 in order to claim property rights in the said survey number and deprive the Complainant of his title.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 3.3.<span style=\"white-space: pre;\">	</span>Petitioner No.1 is not the legal heir of Smt.Sita Ramaswamy. She is not even connected or related to Smt.Sita Ramaswamy. The documents have been fabricated only to usurp the property, the actual legal heirs of Smt. Sita Ramaswamy have all executed declaration in favour of vendors of the complainant way back in the year 2003. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.4.<span style=\"white-space: pre;\">	</span>There is an impersonation made by petitioner No.1 to be the daughter of late Smt.Sita Ramaswamy. Conspiracy has been hatched with Assistant Commissioner to fabricate the documents and create revenue records. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.5.<span style=\"white-space: pre;\">	</span>Apart from the petitioners, Vinod Kumar and the  Assistant  Commissioner  one  another person, viz., Sri. Manjunath, is involved in the aforesaid act of fabrication. They have, in a systematic manner, fabricated the documents. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.6.<span style=\"white-space: pre;\">	</span>The petitioners are habitual offenders, experts in creating and fabricating the documents in and around Pattanduru Agrahara Village. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.7.<span style=\"white-space: pre;\">	</span>The petitioners have made use of fabricated documents made use of the same before the Tehsildar to get the land mutated in the name of the Petitioner No.1, having failed to get the same done, they have used the forged fabricated documents in the proceedings filed by them before the Assistant Commissioner in judicial proceedings to obtain an illegal order. It is on the basis of the above allegations, the above complaint came to be filed for the aforesaid offences and action was sought to be taken against the petitioners and others.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. Based on the submission made by both the counsel and the pleadings filed, citations referred to, the points that would arise for determination are:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1. Whether it can be stated in the present facts that the dispute between the Complainant and the petitioners is entirely civil in nature, thereby making the criminal complaint not maintainable?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 2. Whether once a complaint had been filed before the jurisdictional police station, could it be transferred to the Central Crime Branch for the purpose of the investigation? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Whether merely because a document is used in a Court proceeding, the bar under Section 195 of Cr.P.C., would come into operation or could a complaint be filed before the police station alleging fabrication and forgery of documents, or could both the remedies be availed of by the aggrieved party?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 4. What order?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10. Answer to Point No.1: Whether it can be stated in the present facts that the dispute between the Complainant and the Petitioners is entirely civil in nature, thereby making the criminal complaint not maintainable?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.3. In the present case, there are serious allegations made by the Complainant against the  petitioners  as  regards  they  having fabricated the family tree, death certificate, revenue documents to usurp the property which allegedly does not even belong to or that the petitioners have no right, title or interest in relation thereto more particularly petitioner No.1. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.4. It is categorically alleged that Laxmi Devi –Petitioner. No.1 is not at all related to Smt.Sita Ramaswamy. There is impersonation resorted to by Petitioner No.1-Laxmi Devi in conspiracy with Petitioner Nos.2 and 3 and others to knock off the property belonging to the Complainant. Such an allegation cannot be said to be civil in nature.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.9. Sri. Aravind Kamath, learned Senior counsel by relying upon Chandran Ratnaswamy’s case supra, has contended that if a complainant had manipulated or misused the process of Court, criminal proceedings are to be quashed. Facts in the said decision and facts in the present decision are materially different. In that matter, there were proceedings pending before the Company Law Board between the parties. In this case, there is no Civil proceedings pending. Therefore, the said decision is not applicable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.10. The decision of the Hon’ble Apex Court in Rama Devi’s case supra was also relied upon by the learned Senior counsel. That was a case where the vendor had executed two sale deeds as regards the same property and hence, the Court was of the opinion that a civil suit ought to be filed. Here the allegation made is as regards the impersonation and fabrication of documents by a person, who does not have any interest in the property. Therefore, the said decision is also not applicable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.11. The decision in Sagar Suri’s case has been relied upon by the petitioners. That was a case where all the family members were made parties to criminal proceedings. Hence, the Hon’ble Apex Court held that those proceedings were only for browbeating the parties and quashed the same. Again the said decision is not applicable to these proceedings. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.12. The decision of the Hon’ble Apex Court in Hridaya Ranjan’s case was relied upon. The said decision is not applicable here for the reason that that was one relating to the breach of contract as distinguished from that of cheating. Here there is no contract between the parties. They are not related to each other. Hence, that decision is also not applicable to the present facts. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.13. As such, I answer Point No.1 by holding that in the present facts, the dispute between the Complainant and the petitioners cannot be said to be entirely civil in nature or as a corollary; it cannot be said that there is no criminal offence made out against the petitioners thereby rendering the criminal complaint filed by the Complainant an abuse of the process of law. As such, I am of the considered opinion that the investigation ought to go on.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. Answer to Point No.2: Whether once a complaint had been filed before the jurisdictional police station, could it be transferred to the Central Crime Branch for the purpose of the investigation?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.4. In the present case, it is not that the investigation has been transferred to an inferior officer. The investigation has been transferred from one Police Inspector to another Police Inspector in the CCB. Therefore, the person who has been nominated by the Assistant Commissioner of Police is of the same rank as that of the Investigating Officer in the Seshadripuram Police Station. Hence, in my considered view, the decision of Magadi Shankar Rao’s case supra would not be applicable to the present case. More so, in the said decision, the matter was referred to the concerned Police Station by a Magistrate under Section 156(3) of Cr.P.C. whereas in the present case, there is a complaint filed by the Complainant with the jurisdictional police.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>11.7. In the present case, there is no allegation of malafides against the Assistant Commissioner of Police while transferring the matter. Be that as it may, the investigation has been transferred to a specialised agency viz., CCB, which cannot be said to be malafide or contrary to the applicable statutes.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>11.17. Thus, looked at from any angle, in terms of Section 154 (3) of Cr.P.C., the Additional Commissioner of Police is a superior officer to the Police Inspector - respondent No.1 Police Station. The Additional Commissioner of Police is a superior officer to the inspector of police at the police station. In exercise of superintendence under Section 36 of Cr.P.C., the Additional Commissioner of Police has handed over the matter for investigation to Respondent No.3 – CCB, which officer is of the same rank as that of the police inspector –Respondent No.1. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>11.18. This apparently has been done since Respondent No.1 has not carried out any investigation and/or has not taken any steps. Be that as it may, looked at from another angle, the Complainant on account of inaction on the part of respondent No.1, in terms of Section 154(3) of Cr.P.C.<span style=\"white-space:pre\">	</span>has<span style=\"white-space:pre\">	</span>approached<span style=\"white-space:pre\">	</span>the Additional Commissioner of Police, who is a superior officer of the Respondent No.1 who had exercised his powers to redress the grievance of the Complainant and transferred the matter for the purpose of the investigation to the CCB. Though it may be that the Complainant had sought for transfer of the matter to CCB, it is not only because of the request of the Complainant; the investigation has been handed over to CCB. The matter is transferred to CCB since the CCB is the competent specialised organisation in the investigation. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>11.19. These aspects cannot be faulted with by the petitioners who would have no role to play in the choice of the investigator or investigation agency. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>11.20. Hence, I answer Point No.2 by holding that whenever a complaint is filed before a jurisdictional police station, the same could be transferred to the Central Crime Branch for the purpose of the investigation by the State or by an officer who has superintendence power over the said police station. However, the Investigating Officer of the CCB named has to be of the same or higher rank as that of the Investigating Officer in the police station.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>11.21. Upon investigation, the CCB can submit the investigation report along with a recommendation to the police station. If there is a recommendation for filing of charge sheet, the sam would be filed by the concerned police station. CCB not being a police station cannot file a charge sheet. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>11.22. This vexed contention has been raised in several matters. The State may consider designating the CCB as a police station so as to avoid these kinds of issues being raised in future.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b> 12. Answer to Point No.3: Whether merely because a document is used in a Court proceeding, Section 195 of Cr. P.C., would come into operation or could a complaint be filed before the police station alleging fabrication and forgery of documents, or could both the remedies be availed of by the aggrieved party?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>12.3. In the present case, the family tree is alleged to have been made with the intention of causing it to be believed by third parties, including the revenue officer, Tehsildar etc., that it was true. Petitioner No.1 is also alleged to have impersonated the daughter of late Sita Ramaswamy before the revenue officer, Tehsildar etc.,. These offences are alleged to have commenced much prior to the proceedings before the Court inasmuch as the death certificate and family tree are alleged to have been fabricated for submission before the Tehsildar and impersonation of petitioner No.1 to be the daughter of Smt. Sita Ramaswamy was also made before the Tehsildar. Such being the case, those offences having occurred outside the Court are distinct and separate offences. Merely because subsequently, the same was used in a judicial proceedings cannot deprive the Complainant of his right to file a private complaint. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>12.4. In the present case, the sequence of dates of events is important inasmuch as the petitioners are said to have fabricated a death certificate of Smt. Sita Ramaswamy, they have also fabricated a family tree of Smt. Sita Ramaswamy, and on that basis, had approached the Tehsildar for a change of katha in the name of petitioner No.1. It is only because the Tehsildar rejected the documents and refused to change the Katha and mutate the name of petitioner No.1 that they had approached the Assistant Commissioner. The usage of the so-called fabricated documents was made before the Tehsildar by the petitioners for the benefit of getting the name of petitioner No.1 to be recognised as the owner of the lands in question.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.8. In the present case, crime is actually alleged to have been committed prior to the documents being used in a Court of law, be it a Revenue Court. Since the documents have been fabricated outside the Court when they were no Court proceedings going on between the parties.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.10. Thus, there are four instances that would arise for the purpose of consideration: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.10.1. A document that is forged or fabricated and has not been used in a court proceeding; </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.10.2. A document has been fabricated for the exclusive purpose of usage in a court proceeding that is pending; </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.10.3. A document in the custody of the Court is tampered with so as to change the contents, thereby forging the said document. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.10.4. A document that is forged or fabricated outside the Court but subsequently used in Court proceedings. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.11. In the first case, when a document is fabricated or forged and has not been used in a court proceeding, it cannot be said that Section 195 would be applicable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.12. In the second case, if a document has been fabricated for the purposes of usage in a Court and thereafter, used in a Court and not elsewhere, then Section 195 of Cr.P.C. would come into play as against the private Complainant. In such a situation, it is only the Court which could initiate the proceedings against the offender. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.13. In the third case, if a document is tampered with and/or fabricated while in the custody of the Court, then, it would be the Court alone, which could have to be the Complainant and Section 195 would come into play. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.14. In the fourth case, as held in the first case scenario, if the document has been fabricated and not used in a Court proceeding, then the aggrieved party can always file a criminal complaint, and the same could be proceeded with by the jurisdictional police. The situation gets complicated when after the fabrication, the same is used in a Court proceedings. What would be the remedy of the aggrieved party or rather who is the aggrieved party, is Court also an aggrieved party. Though it can be said that it is the person against whom the offence has been committed both outside Court and inside the Court who is the aggrieved party, if the offence is committed inside the Court, the Court could also be said to be an aggrieved party on behalf of the society at alarge since the same interferes with the course of justice, is an abuse of the process of law and violates rule of law, all of which the Court is duty bound to protect and preserve<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.15. Having considered all situations as stated above, I am of the considered opinion that the offences which have been committed are distinct in nature. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.16. The distinct statutory provisions give rise to separate offences and are therefore required to be treated distinctly, each of those offences are required to be proved by proving the necessary and applicable ingredients thereto.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.31. As aforesaid, the distinction that is required to be drawn to invoke the bar under Section 195 of Cr.P.C. is that primarily the Court is to be the aggrieved party requiring the Court to initiate criminal proceedings. If the aggrieved party is a third party private citizen then the third party private citizen would essentially have a right to file a complaint either in a police station or a private complaint before the Court of law under Section 200 of Cr. P.C, which right cannot be taken away. A private party cannot file a complaint before the police for abuse of process of law, giving false evidence before a court of law or using forged documents in a court, that would have to be done only by a court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.32. In view of the above discussion, I answer Point No.3 by holding that in the present case, the aggrieved party is the Complainant whose right in an immovable property is sought to be usurped by the petitioners by allegedly having fabricated or forged the documents. An aggrieved party’s right in such a situation to file a complaint cannot be taken away and as such, the complaint filed by the Complainant in the present matter is proper and valid. There is no bar under Section 195 (1)(b)(ii) Cr.P.C. for such prosecution as regards offences committed against such private Complainant, it is, however, made clear that the said complaint cannot relate to the offences committed in a Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 12.33. In view of the discussion above, the Court could also initiate necessary proceedings against the accused for the offence under Section 340 of Cr.P.C. Both the prosecution would be concurrently maintainable, there is no bar under Section 195 (1)(b)(ii) Cr.P.C. for such prosecution and the prosecution for offences under Sections 463, 471, 475 and 476 of IPC cannot amount to double jeopardy. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13. Answer to Point No.4: What order?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.1. In view of the above discussion, the Criminal Petition is dismissed.</b></font><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ea19a47ca9281971eaf96de3297591dc.JPG', '9af2b53dfd6ad5d638735def1b2f04d5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-19', 1, '', '', '2022-09-18 23:43:26', '2022-09-19 12:56:42'),
(2200, 'GRvQcQs5JzLsYDAUjLFJ9O4qX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Maximum period seized gold bullion/gold ornaments could be held is 15 days or one month and later interim custody should be handed over to the victim/complainant/applicant. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Namboor Jewelleres Vs State<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 7105 of 2022 decided on 2 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is before this Court calling in question an order dated 19.01.2022, passed in Crl.R.P.No.32/2020, by the VI Additional District and Sessions Judge, Mysuru, whereby, confirming the order dated 10.11.2020, passed in Crime No.34/2020, by the IV Additional Senior Civil Judge and JMFC, Mysuru, registered for offences punishable under Sections 406 and 420 of the IPC, whereby, the learned Magistrate turns down the application filed by the petitioner under Sections 451 and 457 of the Cr.P.C. seeking interim custody of gold bullion seized in P.F.No.31/2020.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. The afore-narrated facts are not in dispute and therefore are not required to be reiterated. The application filed by the petitioner for interim custody of gold bullion on the reason so stated in the application, ought to have been entertained by the learned Magistrate as the Apex Court considering the very provision of law in the case of SUNDERBHAI AMBALAL DESAI.  </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">In the light of the judgment of the Apex Court in the afore-quoted case, that the gold bullion or gold ornaments if seized, the maximum period that it could be held is 15 days or one month and later, it should be released and interim custody should be handed over to the victim/complainant/applicant.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. If the order passed by the learned Magistrate is considered on the bedrock of principles laid down by the Apex Court in the aforesaid judgment, it would on the face of it, run foul, as the Court holds that there are no sufficient grounds made out by the petitioner for interim custody of the gold bullion.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Criminal petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd0d04881913642ec94180c6f8430d9f7.JPG', '297b5717e85dbc561e71c26e98d2089b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-20', 1, '', '', '2022-09-18 23:51:13', '2022-09-20 19:47:26');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2202, 'IBbsozoUk6JgVrNyCvJ49mXK8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Writ petition is maintainable against banks like Punjab National Bank functioning under the umbrella of the National Housing Bank Act, 1987. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mudit Saxena Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 17696 of 2021 decided on 14 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">All these petitions broadly having common questions\r\nof law & facts inter alia seek to lay a challenge the\r\ncoercive recovery measures of Housing Loans by the\r\nRespondent – lending agency i.e., Punjab National Bank\r\nHousing Finance Limited (hereafter ‘PNBHFL’). They\r\nhave also sought for a Writ of Mandamus directing the\r\nsaid Bank to refund the payments already made by them </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in terms of orders made by the Adjudicating Officer of\r\nRERA and to issue a ‘No Due Certificate / No Objection\r\nCertificate’, by rectifying their individual CIBIL Scores\r\nand removing the entries in the loan records which show\r\noutstanding amounts of money against their names.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. BRIEF FACTS OF THE CASE:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>All the petitioners had booked their apartment\r\nunits with the Respondent – Developer i.e., M/S Mantri\r\nDevelopers Private Limited, in terms of “Pre-EMI\r\nScheme” i.e., Pre-Sanctioned loans vide Tripartite Loan\r\nAgreements entered into by & between the Petitioners,\r\nDeveloper & the PNBHFL. Not being happy with the\r\npace of construction, they withdrew their bookings with\r\nintimation to PNBHFL and the same came to be endorsed\r\nby the Developer. However, in terms of arrangement,\r\nthe PNBHFL had disbursed the loan amount directly to\r\nthe Developer allegedly without ascertaining the stages\r\nof construction, though the extant RBI Circulars mandate\r\nsuch ascertainment.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> (ii) Petitioners too had made certain payments to\r\nthe Developer towards their contribution which included\r\nthe remittance of ‘margin monies’. Despite withdrawal\r\nfrom the project, they did not get their monies back from\r\nthe Developer and therefore had complained to the RERA\r\nunder Section 31 of the Real Estate (Regulation and\r\nDevelopment) Act, 2016. Obviously PNBHFL was not a\r\nparty to these proceedings. The RERA directed the\r\nDeveloper “to return the own contribution amount to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">complainant within 30 days…if not, it will carry interest\r\nat 10.25%.” It also directed the Developer “to discharge\r\nthe loan raised in the name of the complainant with all\r\nits EMI and interest if any.”\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> (iii) The Developer having not obeyed the orders of\r\nthe RERA, coercive proceedings for the recovery of\r\nhousing loans were taken up by the PNBHFL and this\r\ngave the ‘base cause of action’ for the petitioners to\r\nstructure these Writ Petitions for restraining the same\r\nand for seeking allied directions in the Writ jurisdiction.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 4. Having heard the learned counsel for the\r\nparties and having perused the petition papers, this\r\nCourt is inclined to grant indulgence in the matter as\r\nunder and for the following reasons:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> (a) There have been Tripartite Housing Loan\r\nArrangements between the Petitioners, the Developer &\r\nPNBHFL, is not in dispute. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">There is a lot of force in the vehement submission of\r\nlearned Senior Advocate Mr. C.K. Nandakumar appearing\r\nfor the petitioners that where “the borrower desires to\r\nwithdraw and/or fails to pay” the differential of the\r\namount as mentioned in the above clause, the entire\r\nloan amount advanced by the PNBHFL, has to be repaid\r\nexclusively by the Developer only. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Clause (f) is borrower specific, whereas clause (l)\r\nincludes both the borrower and the PNBHFL who as the\r\nagent of borrower may cancel the allotment or booking. Further, this clause imposes an obligation on the\r\nDeveloper to refund the amount received from the\r\nborrower in the event of cancellation.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> (b) The vehement contention of learned Senior\r\nAdvocate Mr. Udaya Holla appearing for Respondent -\r\nPNBHFL that under clauses (a) & (b) in the Tripartite\r\nagreement, both the borrower and the Developer are\r\njointly & severally liable to repay the loans, is bit difficult\r\nto countenance. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">These clauses read together impose an obligation on the\r\npart of both the borrower and Developer, is true.\r\nHowever, it is only when the transaction as intended is\r\naccomplished, and not when it proves abortive in the\r\ncircumstances envisaged under clause (f). Even clause </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(c) which provides for holding of the property by the\r\nDeveloper in trust for the PNBHFL, at the pre-sale stage\r\nsupports such a view. Clause (d) which also gives a right\r\nto the PNBHFL to retain the title deeds of apartment\r\nunits by way of security for the repayment of loan, also\r\nlends credence to this.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(c) A conjoint reading of various clauses in the\r\nTripartite Agreement makes it very clear that even when\r\nthe booking/allotment is cancelled and as a consequence\r\nthereof, borrowers’ obligation to serve the debt\r\nevaporates into thin air, the interest of lending agency is\r\nprotected, provided that the sanctioned housing loan was\r\nreleased to the Developer only after ascertaining\r\nstagewar construction of the apartments, in terms of\r\nextant RBI Guidelines and Circulars issued by National\r\nHousing Bank.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>However, the non fruition of such protective clauses,\r\nbecause of reckless release of sanctioned loan even in\r\nthe absence of any construction on the site cannot put\r\nthe borrowers to peril, such a release being made with\r\nthe consent of borrowers concerned, notwithstanding.\r\nAfter all, what PNBHFL has to follow is the instructions\r\nissued by the National Housing Bank since they have\r\nstatutory force, under section 14 (k) of the 1987 Act,\r\nwhich enables <i>“providing guidelines to the housing\r\nfinancing institutions to ensure their growth on sound\r\nlines.”</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(d) The contention of learned advanced on\r\nbehalf of PNBHFL that clause (h) that occurs next in line\r\nto clause (f) in the agreement imposes a joint\r\nresponsibility on both the borrower and Developer in any\r\ncircumstance and therefore by the ‘rule of last <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">antecedent’, what is arguably stated in clause</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(f) pales\r\ninto insignificance, lacks acceptability and reasons are\r\nnot far to seek: Firstly, juristic opinion as to ready\r\ninvokability of such a rule in matters of loan agreements\r\nis in a fluid state; secondly even otherwise it cannot be\r\ninvoked as a thumb rule; thirdly clause (h) by its very\r\nterms engrafts the rule of indemnity for the lapses\r\nattributable to the Developer and not to the borrower;\r\nand lastly, even in non-testamentary instruments where\r\nthere is a conflict between the earlier clause and the\r\nlater, and it is not possible to give effect to all of them by\r\na harmonious construction, then ordinarily it is the\r\nearlier clause that overrides the later vide RAMA\r\nKISHORELAL Vs. KAMAL NARAIAN1\r\n. If construction of the\r\nkind advanced on behalf of PNBHFL is accepted, the\r\nclause specifically engrafted for protecting the interest of\r\nborrowers would be rendered nugatory</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(l) Mr.Holla lastly pressed into service a latest\r\ndecision of this court in M/S NITESH RESIDENCY HOTELS\r\nPVT.LTD vs. UNION OF INDIA14 in support of his\r\ncontention that where disputed facts are involved in a\r\ncase of banking transaction, resort to writ remedy is\r\nmisconceived. That was a case involving a private bank\r\nwhose impugned action did not have any public law\r\nindicia and that the matter was perfectly in the realm of\r\nloan contract that did not have any statutory flavour\r\nunlike the case of petitioners herein. This court made it\r\none of the grounds to deny relief to the litigant therein.\r\nHowever, the facts of this case are miles away from it, as\r\nalready discussed above. Therefore, much milk cannot\r\nbe derived from the said decision. Added, much of the so\r\ncalled ‘disputed questions of facts’ has withered away\r\nbecause of orders of the RERA though PNBHFL was not a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">party eo nomine thereto.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n(i) A Writ of Mandamus issues restraining the\r\nRespondent-PNB Housing Finance Limited from taking\r\nany coercive measures against the petitioners for\r\nrecovering any amount comprised in the Loan\r\nAgreements and Tripartite Agreements in question;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) a Writ of Mandamus issues directing the\r\nrespondents i.e., Reserve Bank of India, National\r\nHousing Bank, Punjab National Bank Housing Finance\r\nLimited & TransUnion CIBIL Limited, to process\r\npetitioners’ claim for reframing the CIBIL scores and for\r\nissuing No Due Certificates in accordance with law, within\r\nsixty days; and</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n(iii) a Writ of Mandamus issues to the respondent –\r\nM/S. Mantri Developers Private Limited, to comply with\r\nthe subject orders made by the Adjudicating Officer,\r\nRERA within sixty days. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Nothing observed herein above shall be constructed\r\nas constricting the respondent-Punjab National Bank\r\nHousing Finance Limited from taking up any proceedings\r\nfor recovering the outstanding loans in question from\r\nrespondent-M/S. Mantri Developers Private Limited.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Costs made easy</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f4cba1ff6e3a749b539ec71f14dd90be.JPG', '7519c7bc08bc15834a46dc25e5fa9d50.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-20', 1, '', '', '2022-09-19 17:17:58', '2022-09-20 12:28:37'),
(2223, 'eDLv8LtzhawyagaqTLUT5zHSD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Conversion of granted land for non-agricultural purposes and construction of residential building in industrial zone cannot be a ground to cancel the grant. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Shreno Limited Vs The State of Karnataka and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 17761 of 2022 decided on 7 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice R Devdas.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioner, a Company incorporated under the\r\nprovisions of Companies Act, 1956, is aggrieved of the\r\nimpugned notice dated 22.08.2022 at Annexure-A, issued\r\nby the third respondent-Tahsildar, Bengaluru East Taluk.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">7. Having regard to the submissions made by the\r\nlearned Counsel for the petitioner and on hearing the\r\nlearned Additional Government Advocate and on perusing\r\nthe petition papers, this Court finds that the impugned\r\nnotice issued by the Tahsildar, purportedly invoking\r\nsections 94 and 104 of the Act, could not have been\r\nissued, since it is not the Tahsildar, who is vested with the\r\npowers to initiate action under both the provisions. Though\r\nunder Section 104, a Tahsildar is empowered to proceed\r\nagainst any violation, it is confined to the cases where </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">there is violation of any condition attached to the tenure.\r\nThat is not the case found on hand. On the contrary,\r\nallegations are sought to be made on the petitionercompany that the petitioner-company has violated the\r\nconditions imposed in the order of conversion issued by\r\nthe Deputy Commissioner, who had permitted the\r\nconversion from agricultural purpose to industrial purpose\r\nand it is alleged that the petitioner has put up a residential\r\nbuilding. In the considered opinion of this Court, when\r\nprovision is made under the Karnataka Town and Country\r\nPlanning Act, which is a special Statute insofar as the\r\nplanning of the area is concerned and powers are vested in\r\nthe Town Planning Authority and specific provisions are\r\nmade making it permissible for a person to put up a\r\nresidential building even in a area reserved for industrial\r\npurposes or commercial purposes, the Tahsildar could not\r\nhave issued the impugned notice on that premise. It is\r\nalso noticeable that sub-section (3) of Section 14A of the\r\nKarnataka Town and Country Planning Act has been </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">deleted from the Statute Book w.e.f. 10.09.2015 and the\r\npermission taken by the petitioner-company was much\r\nprior to 10.09.2015 i.e., on 11.09.2014. Even otherwise,\r\nthe Zonal Regulations of the BDA, would permit\r\nconstruction of a residential building in an area reserved\r\nfor industrial purpose and/or commercial purpose. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. Even otherwise, if there is violation of any\r\ncondition imposed by the Deputy Commissioner while\r\ngranting an order of conversion under Section 95, it is the\r\nDeputy Commissioner alone who is empowered to initiate\r\naction.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Insofar as, the action sought to be initiated action\r\nunder Section 94 is concerned, it is once again the Deputy\r\nCommissioner, who is empowered to initiate action. In the\r\npresent context, when the Special Deputy Commissioner is\r\nseized the matter, in dispute bearing No. RRT(2)CR\r\n23/2006-07 to go into question as to whether the grant\r\nsaid to have been made in favour of the petitioner’s <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">vendor is genuine or not and unless the proceedings are\r\nconcluded finally, the authorities could not have initiated\r\naction against the petitioner and more particularly the\r\nTahsildar. For the reasons stated above, this Court is\r\nconvinced that the respondent-Tahsildar, Bengaluru East\r\nTaluk, K.R.Puram has no authority to issue the impugned\r\nnotice under Sections 94 and 104 of the Act, 1964, against\r\nthe petitioner-company.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Consequently, the writ petition is allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd5b50e279f9c729eb57c36cfe9d32e83.JPG', '9aed50a19e26f196a6ff2ddd4996c331.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-23', 1, '', '', '2022-09-22 19:08:42', '2022-09-23 12:54:18'),
(2224, 'TI8gACZRF16kkk9a1R9wtCbSz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contempt court can pass consequential sequestration orders to secure properties which the contemnor had put beyond the reach of the court or which were acquired for himself or for any other person or entity by his wrongful acts. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Daichi Sankyo Company Limited Vs Oscar Investments Limited and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Special Leave Petition (C) 20417 of 2017 decided on 22 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice Uday Umesh Lalit, Justice Indira Banerjee and Justice K.M. Joseph</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The present proceedings arise out of an action initiated by Daiichi Sankyo\r\nCompany Limited (hereinafter referred to as “Daiichi”) for enforcing a\r\nForeign Arbitral Award dated 29.04.2016 made in Singapore and passed\r\nin favour of Daiichi and against 20 Respondents i.e. Respondent 1: <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Malvinder Mohan Singh, Respondent 2: Malvinder Mohan Singh as\r\nKarta of HUF, Respondent No.3: Malvinder Mohan Singh as Trustee of\r\nBhai Hospital Trust, Respondent No.4: Japna M. Singh, Respondent 5:\r\nNimrita Singh, Respondent 6: Shivinder Mohan Singh, Respondent 7:\r\nShivinder Mohan Singh as Karta of HUF, Respondent 8: Aditi Singh,\r\nRespondent 9: Anhad Parvinder Singh, Respondent 10: Kabir Parvinder\r\nSingh, Respondent 11: Udayveer Singh, Respondent 12: Vivan Singh,\r\nRespondent 13: Nimmi Singh, Respondent 14: Oscar Investments Ltd.,\r\nRespondent 15: Malav Holdings Pvt. Ltd., Respondent 16: Modland Wear\r\nPvt. Ltd., Respondent 17: Fern Healthcare Pvt. Ltd., Respondent 18: ANR\r\nSecurities Pvt. Ltd., Respondent 19: RHC Holdings Pvt. Ltd., Respondent\r\n20: Oscar Traders (Partnership Firm) (“Respondents/ Judgment\r\nDebtors\"), directing them to jointly and severally pay a sum of\r\napproximately INR 2562 crores with further additional pre-award interest\r\n(4.44%) and post-award interest (5.33%), in Arbitration Case\r\nNo.19074/CYK. The Award was challenged in Singapore as well as in\r\nIndia but the objections were dismissed and the Award became final. In\r\nthe proceedings initiated for enforcement of said Award in the High\r\nCourt , an objection was raised under Section 48 of the Arbitration and\r\nConciliation Act, 1996 (for short, ‘the Act’). However, said objection\r\nwas dismissed except insofar as original respondents No. 5 and 9 to 12, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">who were minors when the award was declared. The further challenge in\r\nthis Court to the rejection of the objection did not succeed and Special\r\nLeave Petition (Civil) No. 4276 of 2018 preferred therefrom was\r\ndismissed by this Court on 16.02.2018</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. In the enforcement proceedings being OMP (EFA) (Comm.) No. 6 of\r\n2016 initiated by Daiichi, an apprehension was expressed that the\r\nRespondents were engaging in designs to move the assets outside the\r\nreach of Daiichi. It was submitted that Fortis Healthcare Holdings\r\nPrivate Limited (“FHHPL”) was a holding company under the control of\r\nthe Respondents and the value of its shares was derived solely from the\r\nvalue of the downstream operating company- Fortis Healthcare Limited\r\n(“FHL”); and that FHL shares held by FHHPL were being sold/\r\nencumbered by the Respondents.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. In the backdrop of these submissions, following questions arise for our\r\nconsideration: -</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(a) Whether the acts of commission or omission on part of Contemnor\r\nNos.9 and 10 and the entities controlled by them, were calculated\r\nto put the assets of the companies under their control beyond the\r\nreach of Daiichi?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(b) Having given clear assurances to the High Court and this Court,\r\nwhether such acts of commission and omission on part of\r\nContemnor Nos.9 and 10 amount to contempt of the orders passed\r\nby the High Court and this Court?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(c) Whether the banks and financial institutions sold the shares which\r\nwere pledged with them, purely as a matter of commercial\r\nexpediency or whether there was any deliberate act of defiance to\r\ndefeat the rigour and width of the orders passed by the High Court\r\nand this Court?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(d) Whether the acts committed by them were in connivance with\r\nContemnor Nos.9 and 10?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(e) Whether the transactions entered into by or with IHH/ NTK were\r\nbona fide or whether there was a deliberate attempt to defeat the\r\nprocesses of Court and thereby keep the assets beyond the reach of\r\nDaiichi?</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. The first two questions raised hereinabove need no further elaboration as\r\nthe conduct of contemnor Nos.9 and 10 was considered and they were\r\nheld guilty of having committed contempt of the orders passed by the\r\nHigh Court and this Court. While holding them guilty, by its judgment\r\nand order dated 15.11.2019 this Court had given them an opportunity to\r\npurge themselves of contempt. Therefore, insofar as the role played by\r\nContemnor Nos.9 and 10 is concerned, the matter rests in a narrow\r\ncompass i.e., whether they have purged themselves of contempt or not?\r\nThe kind of assets that have been offered by said Contemnor Nos.9 and\r\n10 in their affidavit are so inadequate that it is impossible to satisfy the\r\namount awarded in favour of Daiichi in the foreign arbitral award. We\r\nare, thus, left with no alternative but to hold that said Contemnor Nos.9\r\nand 10 have failed to purge themselves of contempt. As a matter of fact,\r\nthere is no genuine attempt on their part. The question then comes up is\r\nabout the quantum of sentence. Considering the enormity of their actions,\r\nin our view, the maximum sentence that can be awarded, must be\r\nimposed. We, therefore, sentence them to suffer six months <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">imprisonment and impose fine of Rs.5,000/- for having committed\r\ncontempt of court with default sentence of two months.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. It is true that it is possible for a court, while exercising jurisdiction in\r\ncontempt, to pass consequential orders in the nature of sequestration\r\norders to secure the properties which the contemnor had put beyond the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reach of the court or which were acquired by the contemnor for himself or\r\nfor any other person or entity by his wrongful acts. But there are two\r\ndifficulties to undertake such exercise in contempt jurisdiction in the\r\npresent matter. First, these noticees were not parties to the initial\r\nproceedings in this Court. Secondly, they have come up with a defence\r\nthat all their acts were purely commercial in nature and it was the\r\nexpediency of the situation which demanded such actions on their part.\r\nThese issues need to be gone into at the appropriate stage(s). But before\r\nreacting that level, a factual analysis in the form of forensic audit as\r\nsuggested by Daiichi is also required to be undertaken. Such exercise\r\nwill certainly help the court in arriving at an appropriate conclusion and\r\nin passing appropriate orders or directions. We, therefore, refrain from\r\npassing any directions against said banks and financial institutions for the\r\npresent but observe that the executing court or any other authority\r\ncompetent to exercise such power shall do well to appoint forensic\r\nauditor(s) to undertake proper exercise to unravel the truth</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. Insofar as the issues concerning the acquisition of proprietary interests in\r\nhospitals and diagnostics centers at a price of Rs.4,666 crores by FHL is\r\nconcerned, facts on record are not quite adequate to enter into such arena.\r\nPrima facie, it appears to be acquisition of proprietary interest to subserve\r\nthe business structure of FHL as suggested by IHH/NTK. But again, that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is a matter to be enquired into and facts to be assessed in the light of any\r\nforensic analysis, if the court so deems appropriate.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. In the premises we pass following directions:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(a) Contemnor Nos. 9 and 10 are sentenced to suffer six months\r\nimprisonment and pay fine in the sum of Rs.5,000/- each within four\r\nweeks from today. In case of default of payment of fine, the contemnors\r\nshall undergo further imprisonment of two months.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(b) Special Leave Petition (Civil) No.20417 of 2019, Contempt\r\nPetition No.2120 of 2018 in SLP (C) No.20417 of 2019 and Suo Motu\r\nContempt Petition (C) No.4 of 2019 are disposed of with a direction to\r\nthe High Court, before whom the proceedings in execution are pending,\r\nto consider appointment of forensic auditor(s) to analyse the transactions\r\nentered into by the noticee banks and financial institutions and to look\r\ninto whether such transactions were bona fide and entered into in\r\ncommercial expediency.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(c) The executing court may also consider issuing appropriate process\r\nand appointing forensic auditor(s) to analyse the transactions entered into\r\nbetween FHL and RHT and other related transactions.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(d) The amount of Rs.17,93,40,000/- which stands deposited in the\r\nRegistry of this Court shall be transmitted to the executing court along <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">with interest accrued thereon. The said amount shall be available to the\r\nexecuting court while considering execution of the instant foreign arbitral\r\naward.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(e) Certain shares which are still lying with the noticee banks and\r\nfinancial institutions, for example, the shares of FHL pledged with and\r\ncontinued to be held by RBL Bank which were dealt with in the order\r\ndated 15.04.2021 passed by this Court, shall be available to the executing\r\ncourt and shall abide by such order as the executing court may deem\r\nappropriate to pass.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(f) All the properties offered by Contemnor Nos.9 and 10 in their\r\nattempt to partially purge themselves of contempt shall also be available\r\nto the executing court and shall abide by such directions as the executing\r\ncourt may deem appropriate to pass. Consequently, there shall be\r\nattachment of all those assets which may await the decision or direction\r\nto be passed by the executing court in due course of time which may also\r\ninclude the questions whether the assets in question apparently in the\r\nnames of certain persons/ entities can be proceeded against.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(g) Needless to say that it shall be open to the executing court to pass\r\nsuch directions as the facts and circumstances presented before it may\r\njustify</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(h) All pending proceedings before the concerned courts, including the\r\nFirst Information Reports and proceedings before NCLT shall be taken to\r\nlogical conclusion in accordance with law. </b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '88f28c16e5d44ba91d13b8a80be0ebe4.jpg', '9f70ae7e8f358cfd1a1f2560cb1ecd7d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-23', 1, '', '', '2022-09-23 16:36:30', '2022-09-23 09:23:48'),
(2204, 'ZI0mx9VIEwRO0MYLFex9gs26d', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka State Commission for Scheduled Castes and Scheduled Tribes has no power to direct the Government to withhold grants being made to an educational institution. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vasavi Education Society Vs Karnataka State Commission for the SC/ST.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 101248 of 2022 decided on 13 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.I. Arun.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Respondent No.2 was an employee of the petitioner\r\ninstitution and was serving as a Head Master of the school.\r\nOn allegations of certain misconduct, disciplinary\r\nproceedings were initiated against him and he was\r\ndemoted to the post of a teacher. Respondent No.2\r\nbelongs to a scheduled caste category. He has not\r\nchallenged the disciplinary proceedings against him before\r\nthe competent authority. However, he has filed a\r\ncomplaint before respondent No.1 – The Karnataka State\r\nCommission of Scheduled Castes and Scheduled Tribes\r\nagainst the action of the petitioner. Based on the\r\ncomplaint of respondent No.2, respondent No.1 has\r\npassed an interim order, wherein it has directed the\r\ngovernment to withhold the grants being made to the\r\npetitioner institution. Aggrieved by the same, the instant\r\nwrit petition is filed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Respondent No.1 is constituted under the\r\nKarnataka State Commission for the Scheduled Castes and\r\nScheduled Tribes Act, 2002 Section 8 of the enactment\r\ndeals with functions of the commission and Section 10\r\ndeals with powers of the commission.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">But the said clause does not empower the commission to\r\ndirect the authorities concerned to withhold grants made\r\nin favour of an institution as in the instant case. The\r\nimpugned order is in the nature of an interim order which\r\nhas been passed without enquiring into whether the\r\npetitioner has been discriminated against because he\r\nbelongs to a Scheduled Caste category. Even otherwise if </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respondent No.1 were to come to a conclusion the\r\npetitioner has been discriminated against because he\r\nbelongs to the Scheduled Caste category, it can only make\r\nsuggestion by taking up the matter with the appropriate\r\nauthorities and cannot issue direction as issued in the\r\ninstant case.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> For the aforementioned reasons, the writ petition is\r\ndeserves to be allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4f0599cc9ab53ebf712ccca4082056c0.JPG', 'b7779657d890a6210de65ed9f7ede1e3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-20', 1, '', '', '2022-09-19 17:50:26', '2022-09-20 13:39:50'),
(2205, '8whmYCmm9eXG2jWJ68RAZFAr4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Where the Statute does not prescribe the minimum fine amount, but, only prescribes the maximum, the authority levying substantial amount as fine has to give cogent reasons in support thereof. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Manju Shree Vs Commissioner State Information Commission and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 16606 of 2015 decided on 5 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner being a Public Information Officer is\r\nknocking at the doors of Writ Court for assailing the order\r\ndated 06.03.2015, passed by the 1st respondentCommissioner for State Information, whereby, a fine of\r\nRs.10,000/- has been levied for the delay crept in furnishing\r\nthe subject information.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. Having heard the learned counsel for the parties and\r\nhaving perused the petition papers, this Court is inclined to\r\ngrant a limited indulgence in the matter, inasmuch as, in\r\nsimilar circumstances, a Co-ordinate Bench of this Court in\r\nWrit Petition No.16605/2015 (GM-RES) between Smt.N\r\nManju Shree Vs. Commissioner and others, disposed of on </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">22.10.2020, has reduced the fine amount to Rs.5,000/-.\r\nThere is no reason for this Court to take a different view.\r\nThe facts of the case being substantially similar, similar\r\ntreatment is the norm as enacted under Article 14 of the\r\nConstitution.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 5. Even otherwise, it has now been settled that the\r\norder made under Section 20 of RTI Act has quasi criminal\r\nnature. Where the Statute does not prescribe the minimum\r\nfine amount, but, only prescribes the maximum, the\r\nauthority levying substantial amount as fine has to give\r\ncogent reasons in support thereof. Even this norm has not\r\nanimated the impugned order as rightly pointed out by the\r\nlearned counsel appearing for the petitioner. Added, the\r\npetitioner is a high ranking official who has offered plausible\r\nexplanation for the delay brooked in furnishing the\r\ninformation officers of the kind do have tremendous\r\nworkload, can not be much disputed.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In the above circumstances, the Writ Petition is allowed\r\nin part, although the impugned order cannot be invalidated in\r\nits entirety, the fine amount needs to be and is reduced to\r\nRs.5,000/-, which the petitioner shall remit within four\r\nweeks, failing which, the fine amount as awarded by the\r\nRespondent-Commissioner shall stand revived.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>It hardly needs to be stated that this levying of fine\r\nshall not be treated as an adverse entry in the Service\r\nRegister of the petitioner</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2406105d44cda8f1a983dd027c59b9da.JPG', 'f1abba355a7d1c52f85233a5f1859274.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-20', 1, '', '', '2022-09-19 17:59:24', '2022-09-20 19:41:31');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2206, 'w4ThkSrxNE4DwSQrqzxVjvlBQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When temporary injunction sought in an appeal preferred against decree, the appellate court can look into the evidence and findings of the trial court to form an opinion regarding the nature or status of the property. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shadakshari C.L and others Vs Santhosha C.A.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>MFA 667 of 2022 decided on 5 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This is an appeal filed under Order 43 Rule\r\n1(r) of the Code of Civil Procedure. The events\r\nthat have led to this appeal are as follows:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Original Suit 246/2014 was instituted by\r\nthe respondent in the court of Additional Civil\r\nJudge, Tarikere. It was a title suit based on a\r\nregistered will dated 19/10/2011 executed by C.C\r\nLaxmanappa. In the suit, an order of temporary\r\nin junction was in force till its disposal restraining\r\nthe appellant from interfering with respondent’s\r\npossession of suit property. The appellant herein\r\nchallenged the order of grant o f temporary\r\nin junction by preferring an appeal and it was\r\ndismissed. Then on conclusion of trial the suit\r\ncame to be dismissed . Therefore, the respondent\r\npreferred an appeal under section 96 read with\r\nOrder 41 Rule 1 CPC to the court of Senior Civil\r\nJudge, Tarikere. In the appeal respondent filed an <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">application for temporary injunction and since by\r\norder dated 13/12/2021 , the application came to\r\nbe allowed, the appellants have preferred this\r\nappeal</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Therefore, from the arguments advanced\r\nby the learned counsel, the following two points\r\nmay be formulated for discussion:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) When an application for temporary\r\ninjunction is filed in an appeal\r\npreferred under section 96 read\r\nwith Order 41 Rule 1 o f CPC\r\nagainst the decree of the trial\r\ncourt, is it necessary for the\r\nappellate court to consider the\r\nevidence on record for deciding the\r\napplication?<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) Can the appellate court allow the\r\napplication for temporary\r\ninjunction merely for the reason\r\nthat order of temporary in junction\r\nwas in force till disposal of the\r\nsuit? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">6. The above points can be discussed\r\ntogether. In the beginning itself a fine distinction\r\nbetween an appeal preferred under Order 43 Rule\r\n1 of CPC against an order either granting or\r\nrefusing to grant injunction, and an application for\r\ntemporary injunction preferred in an appeal under\r\nsection 96 read with Order 41 Rule 1 of CPC\r\nagainst judgment and decree of trial court, can be\r\nmade . The points that Sri Vijay Kumar argued\r\npertain to the power of the appellate court which\r\ndecides an appeal filed under Order 43 Rule 1 of\r\nCPC. The court of first instance while deciding an\r\napplication for temporary injunction should </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">preferred an appeal against the decree. I f he\r\nseeks temporary injunction pending disposal of the\r\nappeal, in my opinion , the appellate court need\r\nnot decide such an application in the manner the\r\nappellate court decides the appeal preferred under\r\nOrder 43 Rule 1 of CPC. Whether to grant\r\nin junction or not pending disposal of the appeal\r\nlies within the prudence of the appellate court\r\nhaving regard to the facts and circumstances of\r\nthe case on hand. The purpose of granting\r\ntemporary injunction is to preserve the status and\r\nnature of the property until the dispute is decided\r\non merits.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Here in this case, it is not in dispute that\r\norder of temporary injunction was in force till\r\ndisposal of the suit and it had been confirmed in\r\nthe appeal also. This aspect has been noticed by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the appellate court. In addition to this, the\r\nappellate court has also held the testamentary\r\ncapacity of the testator has not been objected by\r\nthe appellant and what requires to be examined is\r\nfindings of the trial court about the execution of\r\nthe will under suspicious circumstances. As\r\nregards possession , the trial court has held that\r\nbecause PW1 has failed to prove the title , it is not\r\npossible to accept his plea of possessing the suit\r\nproperty. It is held that Ex.P3 and Ex.P5 are not\r\nenough to infer the plaintiff’s possession . But, the\r\ntrial court has also observed that question of\r\ndispossessing the plaintiff does not arise because\r\nDW1 has stated that each of them, including the\r\nplaintiff is in possession of 15½ guntas of land.\r\nThis finding is not clear. The first appellate court\r\nhas to give a clear finding as to possession also,\r\nbut till then there is no good reason to disturb the\r\nstatus that was ordered to be maintained till\r\ndisposal of the suit. There are no grounds to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">interfere with the impugned order. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Hence, appeal\r\nis dismissed.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1a792a1d7d89502787f739520b5418a7.JPG', 'f3e7fec6b07b9528606447e20a9512a2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-19', 1, '', '', '2022-09-19 18:11:55', '2022-09-19 13:00:44'),
(2207, 'mKaVg1ZSlU8WdCiGY8MwkT9yr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Judges cannot maintain angelic silence when the court orders are violated with impunity. Karnataka High Court convicts husband who failed to pay maintenance to wife despite repeated court orders. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>G.C. Deepa and others Vs J. Keshava Murthy.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Contempt Petition 1789 of 2019 decided on 23 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B. Veerappa and Justice K.S. Hemalekha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. It is the case of the complainant that she is the wife of\r\nthe accused and due to the harassment from the accused, she\r\nfiled Crl.M.C. No.44/2011 against the accused under the\r\nprovisions of the Protection of Women from Domestic Violence\r\nAct, 2005 (\'Domestic Violence Act\' for short). In the said\r\nmatter, Metropolitan Magistrate, Traffic Court-III, Bengaluru by\r\nthe order dated 19.1.2012 directed the present\r\naccused/husband to pay maintenance of Rs.24,000/- per month\r\nto the complainant/wife and also a sum of Rs.1,000/- per\r\nmonth towards the medical expenses.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. It is further case of the complainant that the accused\r\nfiled Matrimonial Case against the complainant in M.C.\r\nNo.914/2015, which was pending on the file of the IV Addl. Prl.\r\nJudge, Family Court, Bengaluru. In the said petition, the\r\ncomplainant filed an application under Section 24 of the Hindu\r\nMarriage Act for maintenance. The Family Court by the order <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dated 1.6.2017 allowed the application and granted\r\nmaintenance of Rs.30,000/- per month to the present\r\ncomplainant/wife. While passing the said order, the learned\r\nJudge also observed that maintenance awarded by the learned\r\nMagistrate in the Domestic Violence Case in Crl.M.C.\r\nNo.44/2021 shall be adjusted.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>37. Being the husband of the complainant, it is bounden\r\nduty not only to maintain his old age parents, but also to\r\nmaintain his wife as there is a specific order passed by the\r\nMetropolitan Magistrate as long back as 19/01/2012 passed in\r\nCrl.M.C.No.44/2011 directing the accused to pay maintenance\r\nof Rs.24,000/- and the same was enhanced by the IV Addl. Prl.\r\nJudge Family Court on 01/06/2017 in M.C.No.914/2015. In Writ\r\nPetition No.55090/2018 came to be filed by the accused before\r\nthe learned single Judge of this Court, vide order dated\r\n18/02/2019, the complainant confined to maintenance of\r\nRs.24,000/- per month.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Thereby, the accused not only disrespected the order\r\npassed by this Court, but abused of process of law from 2011\r\ntill 2022 which culminated in filing the present contempt\r\npetition. This clearly indicates that the accused has\r\ndeliberately violated the above mentioned orders passed by\r\nthree Courts, thereby the accused is liable to be punished\r\nunder the provisions of Section 12 of the Contempt of Courts\r\nAct, 1971. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">38. On meticulous perusal of the entire material on\r\nrecord and for the reasons stated above, we answer the point\r\nframed in the affirmative holding that the complainant has\r\nmade out a case to punish the accused and the charge leveled\r\nagainst the accused is proved beyond reasonable doubt as the\r\naccused himself has accepted the guilt when the charge and\r\nplea were recorded by this Court on 23/06/2022, thereby the\r\naccused has committed contempt of Court within the meaning </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of Section 2(b) of the Act punishable under the provisions of\r\nSection 12 of the Contempt of Courts Act in the peculiar facts\r\nand circumstances of the present case.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>39. It is true that the judges should not be hyper\r\nsensitive in discharging judicial functions, but that does not\r\nmean and imply that they ought to maintain angelic silence\r\nalso. Immaterial it is as to the person but it is the seat of\r\njustice which needs protection; it is the image of judicial\r\nsystem which needs protection. Nobody can be permitted to\r\ntarnish the image of the temple of justice. The majesty of the\r\nCourt shall have to be maintained and there ought not to be\r\nany compromise or leniency in that regard.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>40. The experience of this Court depicts that in recent\r\nyears there has emerged a trend of filing speculative litigations\r\nbefore various Courts of law, not just in the Court of first\r\ninstance, but also in the High Court as well as before the\r\nHon\'ble Supreme Court. It is the duty of the Courts to ensure\r\nthat such litigations shall be weeded out at the first instance\r\nrather than allowing to be festered and thereby coming in the\r\nway of genuine litigants seeking justice treating the Court as\r\n\"Temple of Justice\" and to protect precious public and judicial <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">time of the court. \"This augurs ill for the health of our judicial\r\nsystem”.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">41. It is high time for the Court to protect not only the\r\nmajesty of the court, but also ensure judicial discipline of the\r\nCourt, since it is the repository of public faith and trustee of the\r\npeople.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>ORDER:</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) The contempt petition is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '29352bf752fd1f4c39cab72c00dfdcdc.png', '13738fd14900a2568b9644e842068510.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-19', 1, '', '', '2022-09-19 19:16:21', '2022-09-19 11:45:36'),
(2208, 'uxfPpO5NbKzlgJJNkXJeDDXOq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Preventive detention. Detaining authority cannot plead ignorance of representation by detainee. Non-consideration of the representation renders the detention illegal. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shivaraja and others Vs Commissioner of Police and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 39 of 2022 decided on 19 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B. Veerappa and Justice K.S. Hemalekha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The facts leading to the filing of the present\r\nwrit petition are as under:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> (a) Petitioner No.1 is aged 32 years, son of\r\nRavikumar and Bhagyamma and married to one\r\nKamala and he has studied up to IX standard in\r\nprimary and secondary education, Gangardeshwara\r\nSchool, Kamalanagar. Petitioner No.2 is the wife of\r\npetitioner No.1.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(b) One Jagadeesh, Inspector of the Karnataka\r\nState Police, who was later posted at Tavarekere\r\nPolice Station as a Circle Inspector and since 2021 he\r\nhas been constantly harassing the petitioner and his\r\nfamily members and the said inspector would often\r\ncome near the house and workplace of petitioners and\r\nthreatened to eliminate petitioner No.1 in an\r\nencounter and further threatened petitioner No.1 with\r\ndire consequences if he did not vacate his residential\r\nhouse and move out of Bengaluru City and being\r\naggrieved by the said Act of the inspector, the\r\npetitioner complained with the Karnataka State\r\nHuman Rights Commission on 20/04/2021. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">(c) The lodging of a complaint by petitioner\r\nNo.1 with the State Human Rights Commission came\r\nto the knowledge of said inspector Jagadish, who\r\nsummoned petitioner No.1 and his family members on\r\n21/04/2021 and abused them in filthy language and\r\nobtained the identification marks of petitioner No.1. It </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is stated that in the presence of the petitioners, the\r\nsaid inspector Jagadish telephoned to the police at\r\nByadarahalli Police Station and directed them to\r\nimplicate petitioners in 2 to 3 false cases. Further, in\r\nblatant abuse of his power, on 23/04/2021, the said\r\ninspector coaxed his fellow policemen to seek\r\npermission from the higher police authorities for the\r\nopening of “A” Rowdy Sheet against the petitioners\r\nand on 06/05/2021 permission was granted and apart\r\nfrom this, several false cases came to be registered\r\nagainst petitioner No.1.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(h) Without considering the said representation\r\ndated 04/01/2022 submitted by petitioner No.1,\r\nrespondent No.2 confirmed the order dated\r\n28/12/2021 (Annexure – A) passed by respondent\r\nNo.1 under Section 3(3) of the Goonda Act vide order\r\nNo.HD 1 SST 2022 dated 06/01/2022, respondent\r\nNo.2 recorded its subjective satisfaction inter\r\nalia observed that there were seven criminal cases\r\nagainst petitioner No.1; petitioner No.1 habitually\r\ncommitted offences under Sections XVI, XVII and XXII <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the IPC and therefore qualified as a “goonda” under\r\nthe Goonda Act; thirdly, the petitioner carried\r\nweapons intending to create fear in the general public\r\nand that the general public were allegedly fearful of\r\nlodging complaints against him and giving evidence in\r\nCourt; there are two “A” rowdy sheets against\r\npetitioner No.1; petitioner No.1 constantly violated the\r\nbail conditions imposed by the Courts and that\r\nordinary laws of the land are not sufficient to contain\r\npetitioner No.1’s activities.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. It is the case of the petitioner that the\r\nrepresentation submitted to the Advisory Board on\r\n04/01/2022 as stated in his writ petition at para No.10\r\nand the corresponding Annexure – E wherein the\r\nrepresentation dated 04/02/2022 is addressed to the\r\nAdvisory Board. On a reading of the representation, it\r\nis evident that the petitioner has furnished a detailed\r\nrepresentation stating that the main reason for\r\nmaking false charges and arraying the petitioner as\r\naccused by the Tavarekere Police Station in Cr.\r\nNo.479/2015 is due to the complaint lodged by\r\npetitioner No.1 against Inspector Jagadeesh on\r\n23/04/2021 and on that basis having an act of\r\nvengeance on petitioner No.1 the said police inspector <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">instructed the Byadarahalli Police Station to open a\r\nrowdy sheet and accordingly, without examining the\r\nfalse claims and recommendations made by the said\r\nJagadeesh and approval were given on 06/05/2021.\r\nThe detailed representation of the petitioner could be\r\nfound in Annexure – E, which depicts that the\r\ndetention of the petitioner under the Goonda Act is\r\nfalse and the representation was submitted on\r\n04/01/2022 itself. This contention of the learned\r\ncounsel for the petitioner, though was stated in the\r\nwrit petition in paragraph No.10 was denied by the\r\nlearned SPP-II by way of an additional statement of\r\nobjections contending that the petitioner has not\r\npleaded or proved by way of producing documents\r\nconcerning the dates and the respondents having\r\nfactually received the representation dated\r\n04/01/2022 addressed to the Advisory Board.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>This disproves the contention of the State that\r\nthey had no knowledge of the representation\r\nsubmitted by petitioner No.1. Therefore, from the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">facts of the present case what can be gathered is that\r\nthere was a representation given by the petitioner on\r\n04/01/2022 and was within the knowledge of the\r\nrespondent from 10/01/2022 and the consideration on\r\n28/06/2022 after lapse of 168 days is in violation of\r\nArticle 22(5) of the Constitution of India.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. Our view is also fortified by the dictum of\r\nthe Co-ordinate Bench of this Court in the case of\r\nLeelavathi stated supra, wherein it is held that any\r\ndelay in considering the representation of the detenue\r\nis fatal to the detention order and the detention itself\r\nbecomes illegal. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. Thus, the representation of petitioner No.1\r\ndated 04/01/2022 being within the knowledge of the\r\nState Government as early as 10/01/2022 itself and\r\nthe representation being considered by the State\r\nGovernment on 28/06/2022 would show that much\r\ntime has been lost to consider the representation\r\nand thus non-consideration of the representation\r\nhad adversely affected the right of petitioner\r\nNo.1 due to the failure on the part of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">State Government to consider the representation as\r\nnearly six months from the date of representation the\r\norder at Annexure – R9 has been passed by the State\r\nGovernment. Though the learned SPP-II sought to\r\ncontend that the same was not within the knowledge\r\nof the Government as on the date of passing of the\r\norder dated 14/02/2022 which was the confirmation of\r\nthe detention by respondent No.2, the same cannot be\r\naccepted as the endorsement addressed to the detune\r\ndepicts that the same was within the knowledge of the\r\npetitioner at the earliest point of time i.e., on\r\n10/01/2022. It is also evident that the petitioner was\r\nnot given adequate time to submit his representation\r\nas respondent No.1 sought confirmation of the order\r\nof detention dated 28/12/2021 on 03/01/2022 i.e.,\r\nwithin five days of passing the order of detention\r\ndated 28/12/2021, and the representation submitted\r\non 04/01/2022, though was within the knowledge of\r\nthe State as early as on 10/01/2022, while confirming </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the order of detention on 14/2/2022 by respondent\r\nNo.2 State, is contrary to the guidelines laid down by\r\nthe Co-Ordinate Bench of this Court, thus the order of\r\nthe detention passed by the respondent against the\r\npetitioner stands vitiated.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. Thus, in light of the judgment of the Apex\r\nCourt in the case of Smt. Gracy and the judgment of\r\nthe Co-ordinate Bench in the case of Makuko\r\nChukwuka Moulowo stated supra wherein the\r\njudgment of Smt. Gracy and R.Keshava were\r\ndistinguished and is squarely applicable to the facts of\r\nthe present case and the representation dated\r\n04/01/2022 was very well within the knowledge of the\r\nState Government and the non-consideration of the\r\nsaid representation which was received by the State <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">on 10/01/2022, the detaining authority cannot plead\r\nignorance of the representation and accordingly, the\r\nprinciples laid down in the judgment of the Apex court\r\nin the case of Smt. Gracy is squarely applicable to\r\nthe present facts and circumstances of the case and\r\ntherefore, the rights of the detenue has been violated\r\nas conferred upon the petitioner under clause 5 of\r\nArticle 22 of the Constitution and hence, the order of\r\ndetention to be continued is rendered illegal and the\r\npoint framed for consideration is answered in favour\r\nof the petitioner</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The writ petition is allowed</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '65adc77c284a84ab6187985bd30da427.png', 'c16ba04783185b2bf48ec056b64e5b7c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-21', 1, '', '', '2022-09-20 17:05:10', '2022-09-21 03:23:14'),
(2209, 'lx8o3Ww0bFiYCIEVy6t4DcAXn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Licitation process under the Portuguese Civil Procedure Code. Rights conferred upon a successful bidder are heritable by heirs and legal representatives. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ethel Lourdes D’Souza Lobo Vs Lucio Neville Jude De Souza and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 9202 of 2019 decided on 19 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Ravindra Bhat and Justice Sudhanshu Dhulia.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The present appeals arises from a judgment rendered by the Bombay High\r\nCourt, Goa Bench1\r\n. The dispute arises out of inventory proceedings under Chapter\r\nXVII by Articles 1369 to 1447 of the Portuguese Civil Procedure Code (hereafter\r\n“the Code”).\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. Inventory proceedings in the present case arose and were initiated on account\r\nof the death of Lt. Guilherme Caetano Souza and his wife, Maria Guilhermina\r\nAugusta Lourdes Aguiar Souza. These proceedings were initiated in 1985 for\r\npartition of the estate of the said deceased.3 There were six heirs of the deceased\r\n(hereafter referred to by their names) - i.e., Pedro (survived by the petitioner, Ethel </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Lourdes; and Respondent Nos. 23-26); Hermano (survived by the first four\r\nrespondents); Maria Emila Pulqueria Natividade (fifth respondent, deceased and\r\nsurvived by her heirs – Respondent Nos. 6 to 11); Maria Patricia Lucia (deceased,\r\nsurvived by Respondent Nos. 12 to 21); Maria Emilia Julieta (deceased); and\r\nEdwin (deceased). The estate in question comprised, inter alia, three items of\r\nimmovable property. Lt. Edwin, one of the heirs, succeeded to two items (Nos. 2\r\n& 3) of the properties, having bid highest among the heirs in an auction (licitation)\r\nheld on 28.02.2001. The property in dispute is Item No. 1.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3. It is an undisputed fact that the Code is a comprehensive law, incorporating\r\nboth substantive and procedural elements, regarding various matters, including\r\nthose relating to personal laws, with elements of inheritance and succession to\r\nestates. The Code was initially framed in 1867; it became applicable as “law in\r\nforce” upon assimilation of Goa into the Indian Union by virtue of Section 5 (1) of\r\nthe Goa, Daman and Diu Administration Act, 1962.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. When succession opens up to an estate, the properties (both movable and\r\nimmovable) and liabilities of the deceased are inventorized. In the inventory\r\nproceedings, an elder member of the family is appointed as Cabeca de Casal\r\n(administrator). The administrator has to prepare an inventory of all the properties\r\nof the deceased. The deceased’s properties are inventorized and evaluated, after\r\nwhich they are to be distributed in accordance with the shares laid down in the\r\nCode</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Reverting to the facts of this case, on 28.02.2001, Item No. 1 too was part of\r\nthe licitation; Late Maria Emilia Souza was the highest bidder. Since she defaulted\r\nin the payment of the owelty amount, a fresh bid was ordered. On 17.12.2004, the\r\nbidding in the second licitation commenced, and continued on to 03.01.2005\r\ninvolving Item No. 1. Hermano (represented by the first four respondents in this\r\ncourt) was successful, with the highest bid for ?34,15,100/-. Hermano had been\r\nconstituted as the Cabeca de Casal. He died on 11.07.2008. By then, he had not\r\ndeposited any amount towards the bid offered by him. At that stage, the final\r\npartition chart had not been drawn. This fact was reported to the concerned court\r\nseized of the inventory proceedings. At the same time, an application was moved\r\nby Adelaide M. De Souza (Pedro’s heir, Respondent No. 26) for being impleaded\r\nas a party to the proceedings. The present appellant also moved an application for\r\nthe appointment of a fresh Cabeca de Casal and reauction of Item No.1.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. It is recognized that, unlike partition suits, inventory proceedings under the\r\nCode are not essentially adversarial. In these proceedings, initiated upon the death\r\nof one governed by the Code, that event is reported to the Court. A Cabeca de\r\nCasal (administrator or head of the household) is appointed by the Court, from\r\namongst senior members of the family, to manage the properties of the deceased.\r\nWhen the proceedings culminate after the apportionment of shares, there is no\r\ndecree.7 The Cabeca de Casal is enjoined to report all items of the deceased’s estate\r\n- if there are bequests in testamentary instruments, their description. Thereupon the\r\nitems are sought to be divided: for that purpose, each item is valued. Those\r\nproperties which cannot be divided, are then the subject of licitation proceedings,\r\nwhere heirs are allowed to bid for each item of those properties. The chart of\r\npartition is then prepared, listing out the share and the value of shares of each heir.\r\nThose who secure properties (through licitation, etc.) in excess of such share have <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to pay owelty amounts</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">20. It is, thus, obvious that upon successfully bidding in an auction, the amount\r\nto be paid in by the concerned heir is payable upon a demand by any other heir to\r\nsuch bidder, asking for the amount to be deposited. The limitation period, so to say,\r\nis dependent upon the demand so made. The rationale for this rule is that till the\r\namount in excess of such bidder’s share is not computed, they remain in the dark\r\nabout the sum to be paid. In the present case, it is not disputed by the appellant that\r\nsuch a demand was not made; the parties were not notified as to the amounts they </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">were entitled to; or that the respondent did not make the demand. For this reason,\r\nthis court is not persuaded by the submissions of the appellant.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n21. As far as the rights of Hermano’s heirs to succeed to his entitlement to the\r\nitem bid for is concerned, the appellant’s argument was that the right to receive\r\nsuch property was conditional or contingent upon his depositing the entire bid\r\namount; since he did not do so, the heirs cannot inherit some vague inchoate right.\r\nA perusal of Article 1737 of the Code reveals that it is cast in wide terms; it declares\r\nthat the “inheritance” covers “all properties, rights and obligations of the author,\r\nwhich are not merely personal or which are otherwise excepted by the\r\ndisposition…” Concededly Hermano was an heir, entitled to a share in the estate\r\nof the deceased. Upon his death, that share would devolve on the heirs. The\r\nquestion then is whether Hermano’s entitlement to claim a particular item upon\r\npayment of owelty, when demanded, is “property” or a “mere personal right.”</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. In the present case, it cannot be said that Hermano’s right to participate, and\r\nclaim the specific item of property, at the appropriate stage - when owelty was to\r\nbe demanded, was a mere personal right, which extinguished upon his death. The\r\nentitlement to bid in the licitation process was not a personal right, but in his\r\ncapacity as a member of the family, of which he had been constituted as the Cabeca\r\nde Casal. If all other items are heritable by his heirs and legal representatives (as\r\nthere is no dispute that they are, because they step into his shoes) an entirely\r\ndifferent conclusion is unsupportable in regard to the item of property for which he\r\nbid successfully, but for which no demand was made, for payment of any amount.\r\nThis was because, the final chart of partition containing the excess payments to be\r\nmade, by one or other members of the family had not been prepared; no demand\r\nfor payment or deposit of owelty was concededly made by any member of the\r\nfamily. However, that did not mean that the highest bid by Hermano was, in some\r\ninexplicable manner, effaced. His position and right as a successful bidder, and his <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">obligation to pay the concerned amount, when called upon to do so, were heritable\r\nby his heirs and legal representatives.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>25. For the foregoing reasons, the impugned judgment of the High Court is\r\nsound. The appeals are therefore, without merit, and, consequently, dismissed\r\nwithout an order on costs</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '649637ca011db52de3e057753422fcb1.jpg', '66009bc723e8282d4f54c9eeb6209e94.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-21', 1, '', '', '2022-09-20 17:27:16', '2022-09-21 10:24:34');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2210, 'M7uCODwQ6JLyU1kyrWnyA81Dw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Procedure. There is no hard and fast rule that an application made earlier in point of time must be heard before an application made later in point of time. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sepco Electric Power Construction Corporation Vs Power Mech Projects Ltd<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6789 of 2022 decided on 19 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Indira Banerjee and Justice Krishna Murari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The Appellant, an entity incorporated in China was awarded contracts in relation to various coal based power projects in India and the Respondent, a company incorporated in India was engaged as a subcontractor of the Appellant. Disputes and differences between the Respondent and the Appellant were referred to Arbitration. Suffice it to mention that the Arbitration culminated in an Award dated 17th October 2017 of approximately Rs. 1,42,00,00,000/­ (Rupees One Hundred and Forty Two Crores) in favour of the Respondent. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>22. Both the applications under Section 9 filed by the Respondent and the application for stay under Section 36(2) filed by the Appellant relate to the same impugned award.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23. Even though, the applications may be independent applications, there are common factors required to be considered for both the applications of the Respondent under Section 9 and the application of the Appellant under Section 36(2). The jurisdiction of this Court under Section 9 is wide. A party may apply to a Court for interim measures before the commencement of Arbitral proceedings, during Arbitral proceedings or at any time after the making of the Arbitral Award, but before it is enforced in accordance with Section 36 of the Arbitration Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>25. For grant of interim relief under Section 9, the Court would have to consider the prima facie case. In this case, prima facie there is an award for a huge amount of Rs. 142 Crores against the Appellant. The Respondent has a strong case for interim relief.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>27. Under Section 36, where the time for making an application to set aside arbitral award has expired, the award might be enforced in accordance with the provisions of the CPC in the same manner as it were a decree of the Court. Section 36(2) makes it clear that filing an application for setting aside of an award under Section 34 is not to render the award unenforceable, unless the Court expressly grants an order of stay of operation of the arbitral award in accordance with the provisions of subsection (3) of Section 36, on a separate application made for that purpose.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>29. The proviso to Section 36(3) of the Arbitration Act, makes it clear that while considering an application for grant of stay in the case of an arbitral award for payment of money, due regard has to be given to the provisions for grant of stay of a money decree under the provisions of the CPC.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>30. The proviso to Section 36(3) further stipulates that where the Court is satisfied that a prima facie case is made out that (a) the arbitration agreement or contract which is the basis of the award or, (b) the making of the award was induced or effected by fraud or corruption, it shall stay the award unconditionally pending disposal of the challenge under Section 34 of the award.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>34. Section 9 of the Arbitration Act confers wide power on the Court to pass orders securing the amount in dispute in arbitration, whether before the commencement of the Arbitral proceedings, during the Arbitral proceedings or at any time after making of the arbitral award, but before its enforcement in accordance with Section 36 of the Arbitration Act. All that the Court is required to see is, whether the applicant for interim measure has a good prima facie case, whether the balance of convenience is in favour of interim relief as prayed for being granted and whether the applicant has approached the court with reasonable expedition.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>35. It is not in dispute that there is an award of Rs. 142 Crores in favour of the Respondent. No cogent ground has been made out even prima facie, for interference with the impugned award.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>36. Order 41 Rule 5 of the CPC provides for stay of decree upon furnishing of cash security. The High Court acted within the scope of its powers under Section 9 in passing the impugned judgment and order.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>37. We find no ground at all to interfere. The Appeals are dismissed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '05385c13636490e6c6c2cdb8612495db.jpg', '8c58bc5aa7f1c81eae67d59fcb83b2d2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-21', 1, '', '', '2022-09-20 18:05:49', '2022-09-21 12:27:41'),
(2211, '88ggrpJY9jzajgtSp17Vt0IIj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Insider Trading. If a person enters into a transaction which is surely likely to result in loss, he cannot be accused of insider trading. The actual gain or loss is immaterial, but the motive for making a gain is essential. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Securities and Exchange Board of India Vs Abhijit Rajan.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 563 of 2020 decided on 19 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Indira Banerjee and Justice V. Ramasubramanian</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. The Securities and Exchange Board of India has come up with the above appeal, challenging an Order of the Securities Appellate Tribunal, by which the Order of its Whole Time Member (for short “WTM”) directing the respondent to disgorge the amount of unlawful gains made by him, was set aside.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. The background facts leading to the above appeal are as follows:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i) The respondent herein was the Chairman and Managing Director of a company by name Gammon Infrastructure Projects Limited (hereinafter referred to as “GIPL”) till September 20, 2013. Thereafter, he ceased to be the Chairman Managing Director, but continued to be a Director of the Company.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii) In the year 2012 GIPL was awarded a contract by National Highways Authority of India. The total cost of the project was Rs.1648 crores. For the execution of the project, GIPL set up a special purpose vehicle called Vijayawada Gundugolanu Road Project Private Limited (“VGRPPL”).</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iii) Similarly, another company by name Simplex Infrastructure Limited (SIL) was awarded a contract by NHAI in Jharkhand and West Bengal and the total cost of the project was Rs.940 crores. For the execution of the project, SIL set up a special purpose vehicle called Maa Durga Expressways Private Limited (MDEPL).</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iv) GIPL entered into two shareholders agreements with SIL. Under these agreements, GIPL was to invest in MDEPL and SIL was to invest in VGRPPL for their respective projects. The mutual investments were to be tuned in such a manner that GIPL and SIL would hold 49% equity interest in each other’s projects.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(x) In the interregnum, SEBI completed the investigation and issued certain directions on 21.03.2016, followed by a show cause notice dated 29.03.2016. The show cause notice was addressed not only to the respondent herein, but also to another Company by name Consolidated Infrastructure Company Private Limited and two of its Directors. The noticees filed their replies and after giving an opportunity of hearing to the noticees, the WTM passed an Order dated 13.07.2016. By the said order the WTM held the respondent herein guilty of insider trading and hence liable to disgorge the amount of unlawful gains made by him to the tune of Rs.1.09 crores. The show cause notices issued to the others, namely, Consolidated Infrastructure Company Private Limited and its Directors were closed without any directions, on the ground that no case was made out against them.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. From the rival contentions, we think that the questions arising for our determination can be formulated as follows:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i) whether the information regarding the decision of the Board of Directors of GIPL to terminate the aforesaid two contracts can be characterized as “price sensitive information” within the meaning of Section 2(ha) of the Securities and Exchange Board of India (Prohibition of Insider Trading) Regulations 1992, (hereinafter referred to as the ‘Regulations’);</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii) whether the sale by the respondent of the equity shares held by him in GIPL, under peculiar and compelling circumstances in which he was placed, would fall within the mischief of ‘insider trading’ in terms of Regulation 3(i) read with Regulation 4 of the Regulations;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iii) whether SEBI should have taken into account the last trade price of the day on which information was disclosed instead of the trade price of the next day</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Question Nos.1 & 2</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>27. Therefore, while dealing with a case falling under Explanation (vii) of Regulation 2(ha), one may have to see whether there was any likelihood of the said information materially affecting the price of the securities of the company. Additionally, the activity in which the insider was involved also determines his culpability for violation of Regulation 3. For instance, the sale by a person in possession of price sensitive information, at a time when the price is likely to take a plunge, will certainly be an attempt at taking advantage of or encashing the information. Similarly the purchase by a person in possession of UPSI at a time when the price of the security is about to skyrocket, will certainly be an attempt to take advantage</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>32. In arithmetical terms, the acquisition by GIPL, of an equity interest in SIL’s project was worth Rs. 460 crores approximately. Similarly, the acquisition by SIL, of the equity interest in GIPL\'s project was worth Rs. 807.52 crores. Therefore, the cancellation of the shareholders Agreements resulted in GIPL gaining very hugely in terms of order book value. In such circumstances an ordinary man of prudence would expect an increase in the value of the shares of GIPL and would wait for the market trend to show itself up, if he actually desired to indulge in insider trading. But the respondent did not wait for the information about the market trend, after the information became public. The reason given by him, which is also accepted by the WTM and the Tribunal is that he had to dispose of his shares as well as certain other properties for the purpose of honouring a CDR package. It is on record that if the CDR package had not gone through successfully, the parent company of GIPL namely, Gammon India Ltd., could have gone for bankruptcy.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>33. Therefore, the Tribunal was right in thinking that the respondent had no motive or intention to make undeserved gains by encashing on the unpublished price sensitive information that he possessed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>34. As a matter of fact, the Tribunal found that the closing price of shares rose, after the disclosure of the information. This shows that the unpublished price sensitive information was such that it was likely to be more beneficial to the shareholders, after the disclosure was made. Any person desirous of indulging in insider trading, would have waited till the information went public, to sell his holdings. The respondent did not do this, obviously on account of a pressing necessity.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>35. We agree with the contention of Shri Arvind P. Datar, learned senior counsel for the appellant, that the allegation of insider trading cannot be measured in terms of the value of the contracts terminated and the percentage of shares sold and that the theory of proportionality cannot be applied in such cases. The magnitude of what an insider did, in relation to the size of the company, may not have a bearing upon the question whether someone indulged in insider trading or not. But what is sought to be encashed by the insider should be an information which if published is likely to materially affect the price of the securities of the company.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>37. It is true that the de minimis Rule has no application to insider trading, as it introduces an element of subjectivity. This is why we have not gone on the basis that GIPL’s investments in the project of SIL represented 0.05% of GIPL’s order book value and 0.7% of its turnover. We have gone on the basis that the termination of both the contracts put GIPL in a more advantageous position, in which one would have expected the price of the securities to soar. The normal human conduct would be to wait for this event to happen. This event could have happened only after the publication of the information in question. The fact that the respondent did not wait to take advantage of the situation, convinces us that his intention was not to indulge in insider trading. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>41. While dealing with yet another case arising out of allegations of violation of SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003, this Court held in Kanaiyalal Baldevbhai Patel (Supra) (para­58) that the volume, the nature of the trading and the timing of the transactions may have to be taken into account to find out whether there was an attempt at encashing the benefit of the information that the insider was in possession. It is no doubt true that the Court clarified in paragraph 62 of its decision in Kanaiyalal Baldevbhai Patel (supra) that mens rea is not an indispensable requirement to attract the rigor of FUTP Regulations, 2003. This Court held that the correct test is one of preponderance of probabilities. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>42. But an attempt by the insider to encash the benefit of the information is not exactly the same as mens rea. Therefore, the Court can always test whether the act of the insider in dealing with the securities, was an attempt to take advantage of or encash the benefit of the information in his possession. This is the test we have applied to the case on hand.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>43. In Chintalapati Srinivasa Raju (supra), this Court approved the minority judgment of the Securities Appellate Tribunal (in para 20), which took note of the compelling circumstances under which the individual was selling shares. The fact that this has been taken note of by WTM as a mitigating factor, while passing a mere restitutionary order, does not take away the validity of the defence taken by the respondent.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>44. Therefore, we are of the view on Question No.1 that the information regarding the termination of the two contracts can be characterised as price sensitive information, in that it was likely to place the existing shareholders in an advantageous position, once the information came into the public domain. In such circumstances, our answer to Question No.2 would be that the sale by the respondent, of the shares held by him in GIPL would not fall within the mischief of insider trading, as it was somewhat similar to a distress sale, made before the information could have a positive impact on the price of the shares.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>45. In view of our answers to Question Nos. 1 and 2, we are of the view that there is no necessity to go into Question No.3. Our answers to Question Nos. 1 and 2 are sufficient to hold that the impugned order of the Tribunal does not call for any interference. Therefore, the appeal is dismissed. There will be no order as to costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6f19b0669934738022bc65640b6b843a.jpg', '939fee754ebbd82d8f4b213a1cc91a49.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-21', 1, '', '', '2022-09-20 20:00:27', '2022-09-21 08:31:29'),
(2212, '3SIZJ51op1bmdZSizkHuThRqn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transfer of immovable property prior to assessment proceedings cannot be branded as transactions aimed at defrauding tax or other dues. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Commissioner, Trade Tax, U.P. Vs M/s Radico Khetan Ltd<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6396-6397 of 2009 decided on 19 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice Krishna Murari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The facts leading to the present appeals in a nutshell are as under: ­ </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.1 That the original assessee – M/s. Shaw Scott Distillery (P) Ltd., Rampur was in arrear of Rs. 11,28,877/­ and Rs. 53,89,035/­ of trade tax for the year 1980­81 and 1981­ 82, respectively. The recovery proceedings were initiated against the original assessee. The recovery certificate was issued. The plant, machinery and the goods belonging to the original assessee came to be purchased by respondent herein – purchaser on 12.12.1985 and 01.01.1986 for a total consideration of Rs. 12,12,000/­. The Assessing Officer (AO) found that the transfer of aforesaid property was effected by the original assessee at the time when the assessment proceedings were pending and the Assessing Officer found that the said transactions in favour of the purchaser were for the purpose to defraud the Revenue. Therefore, in exercise of powers under Section 34 of the U.P. Trade Tax Act (hereinafter referred to as the Act), the recovery certificate issued in the name of original assessee was endorsed by the Assessing Officer treating the aforesaid transfers void to be recovered the amount from the purchaser in same way as it had to be recovered from the original assessee. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">2.2 The purchaser – respondent herein ­ M/s. Rampur Distillery & Chemicals Ltd. (subsequently renamed as M/s. Radico Khaitan Ltd.) challenged the endorsement of recovery certificate against it before the First Appellate Authority. The First Appellate Authority dismissed the appeals preferred by the purchaser. Feeling aggrieved with the order of the First Appellate Authority, the purchaser challenged the same before the Trade Tax Tribunal. The Tribunal allowed the said appeals and held that the endorsement of recovery certificate against the purchaser is bad in law by observing that (i) no assessment proceedings/proceedings under the Act were pending when the purchaser – M/s. Rampur Distillery & Chemicals Ltd. purchased the goods, plant and machinery from the </font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">original assessee and (ii) that the transactions of sale of goods, plant and machinery between the original assessee and the purchaser cannot be said to be with the intention of defrauding tax or any other dues and (iii) that the purchaser was the bona fide purchaser. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. At the outset, it is required to be noted that the dispute is with respect to the amount of tax due and payable by the original assessee – M/s. Shaw Scott Distillery (P) Ltd. for the assessment years 1980­81. It has come on record that the assessment proceedings were concluded in the year 1984. The assessment was reopened in the year 1988. The transfer of goods, plant and machinery belonging to the original assessee ­ M/s. Shaw Scott Distillery (P) Ltd. took place on 12.12.1986 and 01.01.1986 for a total sale consideration of Rs. 12,12,000/­ which were much prior to the initiation of reassessment proceedings. It is not in dispute that the recovery certificate against original assessee came to be issued on 15.04.1990 and the endorsement for recovery against the purchaser was on 26.03.1993. It is also required to be noted that the sale consideration of Rs. 12,12,000/­ has not be disputed by the Revenue. The endorsement to recover the amount due and payable by the original assessee against the purchaser is sought to be made in exercise of powers under Section 34 of the Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. Section 34 of the Act shall be applicable only in a case where there is a transfer of immovable property belonging to the original assesee, during the pendency of any proceedings under the Act with the intention of defrauding any such tax or other dues. As per proviso to Section 34, nothing in Section 34 shall impair the rights of a transferee in good faith and for consideration. Thus, the power of Section 34 can be exercised only in a case where the transfer of immoveable property belonging to the original assessee is made during the pendency of any proceedings under the Act and such transfer is found to be with the intention to defraud any such tax and other dues.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>In the present case, the transfer of goods, plant, and machinery (may be treated as immoveable property) had taken place on 12.12.1985 and 01.01.1986 for a sale consideration of Rs. 12,12,000/­. On that day, no assessment proceedings and/or any proceedings under the Act and/or recovery proceedings were pending. As observed hereinabove, the assessment proceedings were concluded in the year 1984 and the same was reopened in the year 1988. The recovery certificate was issued against the original assessee on 15.04.1990. Thus, at the time of transfer of immoveable property of the assessee which was for value/consideration, no proceedings under the Act were pending, Section 34 of the Act shall not be applicable. Under the circumstances, the endorsement against the purchaser dated 26.03.1993, which was in exercise of powers under Section 34 of the Act has rightly been set aside by the Tribunal. At the cost of repetition, it is observed that in the facts and circumstances of the case narrated hereinabove, Section 34 of the Act shall not be applicable at all. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. Under the circumstances, no error has been committed by the High Court in dismissing the revision applications confirming the orders passed by the Trade Tax Tribunal setting aside the endorsement of recovery certificate issued in favour of original assessee against the purchaser. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. In view of the above and for the reasons stated above, both the appeals fail and the same deserve to be dismissed and are accordingly dismissed. No costs. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8378492f076dd9cceaf73ec2d7da3865.jpeg', '615e3593378f3063f7dc0a2a07892793.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-21', 1, '', '', '2022-09-20 20:19:23', '2022-09-21 06:28:06'),
(2213, 'S60xxuRFfnjnT5wFgt6WJzZtB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Exclusion of women from inheriting agricultural lands under Section 50(a) of the Delhi Land Reforms Act, 1954 is not unconstitutional. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Har Narini Devi and another Vs Union of India and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 22957 of 2017 decided on 20 September 2022<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Gupta and Justice Vikram Nath</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This civil appeal by the original writ petitioners before the\r\nHigh Court, assails the correctness of the judgment and order\r\ndated 11.09.2009 passed by the Division Bench of the Delhi High\r\nCourt dismissing Writ Petition (Civil) No. 2887 of 2008 whereby\r\nchallenge was made to declare Section 50(a) of the Delhi Land\r\nReforms Act, 19541 unconstitutional being ultra vires Articles 14,\r\n15, 254 and 21 of the Constitution of India.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">From the above pedigree it is clear that the appellants are the\r\nwidow and daughter of Ishwar Singh whereas the contesting\r\nrespondent nos. 3 and 4 are the sons of Ishwar Singh. The dispute\r\nrelates to the agricultural property held by Mukhtiar Singh. He had\r\nthree sons viz Mahinder Singh, Jagdish Singh and Ishwar Singh.\r\nAll of them pre-deceased him. Mukhtiar Singh died on 06.06.1997\r\nand his inheritance relating to the branch of Ishwar Singh was\r\nsucceeded by his grandsons (sons of Ishwar Singh i.e. Jaidev and\r\nAmit - respondent nos. 3 and 4) under Section 50(a) of the 1954\r\nAct. Revenue records were corrected accordingly</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. The appellants by way of a petition under Article 226 of the\r\nConstitution of India challenged the validity of Section 50(a) of the\r\n1954 Act as they were denied any rights in the inheritance along\r\nwith respondent Nos.3 and 4.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. Apart from the fact that a bare reading of Article 254 reflects\r\nthat it refers to repugnancy in law made with respect to matters\r\nenumerated in the Concurrent list (List III), this Court has also\r\nlaid down that question of repugnancy would not come into\r\nexistence unless it is first established that both enactments are\r\nunder the Concurrent list (List III). In this respect it would be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appropriate to refer to the law laid down by this Hon’ble Court in\r\nthe case of M/s. Innoventive Industries Ltd. vs. ICICI Bank and\r\nOrs.8\r\n. It is held therein that the question of examining repugnancy\r\nwould not apply at all unless it is first established that both\r\nenactments under the Central and the State are with respect to\r\nmatters enumerated under the Concurrent list (List III).\r\nConsequently, it is submitted that Article 254 would have no\r\napplication to the present case at all. Paragraph 51 lays down the\r\npropositions after discussing in detail the law on the point</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the present case, 1954 Act is not referable to any matter\r\nenumerated in List III but it is referable to Entry 18 of List II. Thus,\r\nno question of repugnancy would arise in view of Article 254 of\r\nthe Constitution.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. Till 2005, to be specific 09.09.2005, when the Hindu\r\nSuccession (Amendment) Act of 2005 was enacted, the aforesaid\r\nprovision remained on the statute. It is not in dispute that the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">property in question is agricultural property, and therefore, in\r\n1997 at the time when Mukhtiyar Singh died, the devolution of\r\ninterest (inheritance) would be determinable on the said date, in\r\naccordance with the law existing at that time. In 1997 Section 4(2)\r\nof the 1956 Act, was very much on the statute, its subsequent\r\ndeletion would not have any impact on the rights of inheritance,\r\nwhich had already accrued and crystallised, prior to the\r\namendment. Therefore, on facts deletion of Section 4(2) of the\r\n1956 Act would not help the appellants.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">25. The deletion of Section 4(2) took place w.e.f 09.09.2005.\r\nTherefore, the effect of the deletion can only be in respect of\r\nsuccessions which opened on or after 09.09.2005. This is because\r\nunder Section 6(b) and 6(c) of the General Clauses Act repeal\r\ncannot affect the previous operation of any enactment so repealed\r\nand cannot affect the previous operation of any enactment so\r\nrepealed and cannot affect any right which may have been\r\nacquired or accrued. In the present case, it is to be held that\r\nsuccession has opened prior to 09.09.2005, the rights of the\r\ndescendants in terms of Section 50 became crystallized on account\r\nof the said Section read with Section 4(2) of the 1956 Act.\r\nTherefore, the deletion of Section 4(2) cannot have retrospective\r\neffect.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. There is one more reason, why the existence of Section 4(2)\r\nin the 1956 Act and its deletion will not have any impact in the\r\npresent case. The reason is that the 1954 Act, as held above is a\r\nspecial law, dealing with fragmentation, ceiling, and devolution of\r\ntenancy rights over agricultural holdings only, whereas the 1956\r\nAct is a general law, providing for succession to a Hindu by religion\r\nas stated in Section 2 thereof. The existence or absence of Section\r\n4(2) in the 1956 Act would be immaterial.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. The argument advanced by the learned counsel for the\r\nappellants is that the applicability of amendment in Section 6 and\r\nthe deletion of Section 4(2) from the 1956 Act would have\r\nretrospective effect, which is also of no help to the appellants. Once\r\nwe are holding that succession in the present case with respect to\r\nthe property in question is governed by the 1954 Act, any\r\namendment even if it has a retrospective effect in the 1956 Act will\r\nhave no bearing or impact on the provisions of succession\r\ngoverned by the 1954 Act. Moreover, this Court in the judgment\r\nof Vineeta Sharma has given retrospective application only to\r\nSection 6 of the 1956 Act as amended in 2005. There is no\r\ndeclaration regarding deletion of Section 4(2) being retrospective.\r\nThis argument, therefore, also fails.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. Reliance placed upon the judgment in the case of Babu Ram\r\nis of no help to the appellant. The case of Babu Ram related to\r\nState of Himachal Pradesh where there is no State enactment\r\nlegislated covering the matters mentioned in Entry 18 of List II that\r\nis to say that the State of Himachal Pradesh has no local\r\nenactment covering agricultural land tenures. It was in such\r\ncircumstances that this Court held that succession of agricultural\r\nland would be governed by the 1956 Act. It would be worthwhile to\r\nmention that in the judgment of Babu Ram itself this Court\r\nclarified that had there been a state enactment covering the field\r\nof Entry 18 List II of Seventh Schedule, the rights over agricultural\r\nland would have been governed by the same.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30. For all the reasons recorded above, the appeal fails and is\r\naccordingly dismissed. No order as to costs.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c1ae504be1613a464cacb095d9faa4ab.jpg', '3a3c8d44a0afaa1a54eb1c8fc4ca04cf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-22', 1, '', '', '2022-09-21 17:28:01', '2022-09-22 06:30:00'),
(2214, 'xzK49ErmvvlYVvjkbh2SrSRe4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When there is alternative remedy, the question is not about the maintainability of the writ petition, but the question is about the entertainability of the writ petition by-passing the statutory remedy. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State of Maharashtra and others Vs Greatship (India) Limited<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4956 of 2022 decided on 20 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order dated 30.04.2021 passed by the High Court of Judicature at\r\nBombay in Writ Petition (Stamp) No. 92630 of 2020, by which the High\r\nCourt has, in exercise of powers under Article 226 of the Constitution of\r\nIndia, set aside the assessment order passed by the assessing authority <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and also the belated notice of demand, the State of Maharashtra and\r\nothers have preferred the present appeal.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2. That the respondent – original writ petitioner was subjected to\r\nproceedings under the Maharashtra Value Added Tax, 2002 (hereinafter\r\nreferred to as the ‘MVAT Act’) and Central Sales Tax Act, 1956\r\n(hereinafter referred to as the ‘CST Act’). The Assessing Officer issued\r\nnotice of assessment dated 01.02.2018 calling upon the assessee to\r\nproduce relevant documents and also to show cause as to why it should\r\nnot be assessed under the relevant provisions of Section 23 of the MVAT\r\nAct.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. We have heard the learned counsel for the respective parties at\r\nlength.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>At the outset, it is required to be noted that against the assessment\r\norder passed by the Assessing Officer under the provisions of the MVAT\r\nAct and CST Act, the assessee straightway preferred writ petition under\r\nArticle 226 of the Constitution of India. It is not in dispute that the\r\nstatutes provide for the right of appeal against the assessment order\r\npassed by the Assessing Officer and against the order passed by the\r\nfirst appellate authority, an appeal/revision before the Tribunal. In that\r\nview of the matter, the High Court ought not to have entertained the writ\r\npetition under Article 226 of the Constitution of India challenging the\r\nassessment order in view of the availability of statutory remedy under\r\nthe Act. At this stage, the decision of this Court in the case of Satyawati\r\nTondon (supra) in which this Court had an occasion to consider the\r\nentertainability of a writ petition under Article 226 of the Constitution of\r\nIndia by by-passing the statutory remedies, is required to be referred to.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">8. Now so far as the reliance placed upon the decisions of this Court\r\nby the learned Senior Advocate appearing on behalf of the respondent,\r\nreferred to hereinabove, are concerned, the question is not about the\r\nmaintainability of the writ petition under Article 226 of the Constitution,\r\nbut the question is about the entertainability of the writ petition against\r\nthe order of assessment by-passing the statutory remedy of appeal.\r\nThere are serious disputes on facts as to whether the assessment order\r\nwas passed on 20.03.2020 or 14.07.2020 (as alleged by the assessee). </span><span style=\"font-size: 12pt;\">No valid reasons have been shown by the assessee to by-pass the\r\nstatutory remedy of appeal. This Court has consistently taken the view\r\nthat when there is an alternate remedy available, judicial prudence\r\ndemands that the court refrains from exercising its jurisdiction under\r\nconstitutional provisions.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>9. In view of the above and in the facts and circumstances of the\r\ncase, the High Court has seriously erred in entertaining the writ petition\r\nagainst the assessment order. The High Court ought to have relegated\r\nthe writ petitioner – assessee to avail the statutory remedy of appeal and\r\nthereafter to avail other remedies provided under the statute.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">10. Under the circumstances, the impugned judgment and order\r\npassed by the High Court is hereby quashed and set aside. The writ\r\npetition filed before the High Court challenging the assessment order\r\nand consequential notice of demand of tax is hereby dismissed. The\r\nrespondent – assessee is relegated to avail the statutory remedy of\r\nappeal and other remedies available under the MVAT Act and CST Act.\r\nIt is directed that if such a remedy is availed within a period of four\r\nweeks from today, the appellate authority shall decide and dispose of the\r\nsame on its own merits in accordance with law without raising any\r\nquestion of limitation, however, subject to fulfilling the other conditions, if\r\nany, under the statute. It is made clear that we have not expressed an </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">opinion on the merits of the case in favour of either of the parties and it is\r\nfor the appellate authority and/or appropriate authority to consider the\r\nappeal/proceedings on its/their own merits and without being influenced\r\nin any way by any of the observations made by the High Court which\r\notherwise have been set aside by the present order. The present appeal\r\nis allowed in the aforesaid terms. However, in the facts and\r\ncircumstances of the case, there shall be no order as to costs</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a0761c347eed3a3281ffef0beb685b03.jpg', '56b967aea8031b6d873a78d6d9ceeed2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-22', 1, '', '', '2022-09-21 17:42:34', '2022-09-22 08:29:14');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2215, 'GusrhKjlemq39wfIpx4rF3knr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Creation of a separate juristic entity for the management of historical Gurdwaras does not violate Article 25 or 26 of the Constitution of India. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Harbhajan Singh Vs State of Haryana and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition (Civil) 735 of 2014 decided on 20 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Gupta and Justice Vikram Nath.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The above writ petitions are preferred challenging the Haryana Sikh\r\nGurdwara (Management) Act, 20141\r\n, creating a separate juristic entity\r\nfor the management of historical Gurdwaras in the State of Haryana\r\nmentioned in Schedule I; Gurdwaras having income of more than Rs.20 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">lakhs in Schedule II and the Gurdwaras having income of less than\r\nRs.20 lakhs in Schedule III.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>2. The Statement of Objects and Reasons of the Haryana Sikh Gurdwara\r\nManagement Bill, 2014 (Bill No. 28-III A of 2014) provides that the Bill\r\nis an earnest effort to provide a legal procedure by which the\r\nGurdwaras, owing to their origin and habitual use, regarded by the\r\nHaryana Sikhs as essentially pious places of worship, may be brought\r\neffectively and permanently under the exclusive control of the Sikhs of\r\nHaryana for their proper use, administration, control and financial\r\nmanagement reforms to make it consistent with the religious views of\r\nthe said community. It was pointed out that the Sikh Gurdwaras in the\r\nState are being governed by the provisions of the Sikh Gurdwaras Act,\r\n19252\r\n and the rules and regulations made thereunder, but in view of\r\nthe demands of the Sikhs in the State of Haryana which were\r\nexamined by two committees, it was decided to introduce the Bill in\r\nterms of powers conferred under Article 246 read with Schedule VII,\r\nList II, Entry 32 of the Constitution of India, as also in pursuance of\r\nSection 72 of the Punjab Reorganisation Act, 19663\r\n. It is thereafter, the\r\nHaryana Act was enacted which came into force on 14.7.2014.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. In the light of arguments addressed and/or submitted, we find the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">following questions arise for consideration:</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n(i) Whether any fundamental rights of the petitioners under\r\nArticles 25 and 26 of the Constitution of India are violated, so\r\nas to entitle the petitioners to invoke the jurisdiction of this\r\nCourt under Article 32 of the Constitution?\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(ii) Whether Section 72 of the Punjab Reorganisation Act, 1966\r\nand Sections 3 and 4 of the Inter-State Corporation Act, 1957\r\nwere transitional provisions to meet the immediate\r\nrequirement of the issues arising out of creation of separate\r\nStates?\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(iii) Whether the impugned enactment (Haryana Act) falls within\r\nthe legislative competence of the Haryana State Legislature or\r\ndoes it fall under Entry 44 of List I of the Seventh Schedule of\r\nthe Constitution?\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(iv) Whether the Impugned Act falls in List-III (Concurrent List) of\r\nSchedule VII, which required the assent of the President of\r\nIndia as per Article 254(2) of the Constitution of India, and in\r\nthe absence of such assent, void?</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Question No. (ii) - Whether Section 72 of the Punjab\r\nReorganisation Act, 1966 and Sections 3 and 4 of the Inter-state\r\nCorporation Act, 1957 were transitional provisions to meet the\r\nimmediate requirement of the issues arising out of creation of\r\nseparate States?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. The writ petitioners, SGPC and the Union have taken one line of\r\nargument that the Haryana State Legislature does not have any power\r\nto legislate in respect of an inter-state corporation which is evident\r\nfrom the reading of sub-section (3) of Section 72 of the 1966 Act. In\r\nrespect of such inter-state body, it is averred that the Central\r\nGovernment alone is the competent authority to issue directions in\r\nterms of sub-section (1) of Section 72 of the 1966 Act. Alternatively,\r\nthe right of the State of Haryana is to frame a scheme in terms of the\r\nprovisions of Section 3 of the 1957 Act and forward it to the Central\r\nGovernment for its consideration and approval, with or without\r\nmodifications. Mr. Nataraj pointed out that Section 3, as referred to by\r\nthe learned counsel for the parties, is not factually correct. If an interState corporation is required to be reconstituted and reorganized as\r\none or more ‘intra-State corporations’, or that it has to be dissolved,\r\nthe State of Haryana was expected to frame a scheme for the\r\nreconstitution and reorganization to have intra-State management of\r\nGurdwaras in the State of Haryana.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">45. A perusal of the judgments in Kashmir Singh-I and Kashmir SinghII would show that the successor States might adopt, modify or repeal\r\nthe 1925 Act. The Board, an inter-State body corporate, shall then no\r\nlonger remain an inter-State body corporate and the position was to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">revert to what it was under the 1925 Act i.e., body corporate\r\nsimplicitor. It was held that Section 72(1) is not intended to be a\r\nmeasure for all times to come and that successor States are competent\r\nto make other provisions by law in respect of such body corporates.\r\nThe object of the 1966 Act was to make necessary, supplemental,\r\nincidental and consequential provisions in relation to reorganisation of\r\nthe State of Punjab. It was also held that the competent legislature,\r\nwhich necessarily means legislature of the successor State would be\r\nwell within its power and competence to provide otherwise than the\r\nexisting laws. Therefore, the successor State may, in its wisdom, could\r\nsay that the 1925 Act would not apply to the said State.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n46. The consistent view of the three Full Benches of the High Court and of\r\nthis Court is that the power of the Centre to issue directions under\r\nSection 72 of the 1966 Act is a transitional provision. Therefore, we\r\nhave no hesitation to hold that the power of the Centre to issue\r\ndirections under Section 72 of the 1966 Act is indeed a transitional\r\nprovision to ensure smooth and continuous functioning of a body\r\ncorporate so that it is not paralyzed on becoming an inter-State body\r\ncorporate due to reorganisation of the erstwhile State of Punjab. The\r\ndirections contemplated by Section 72 relates to functioning and\r\noperation of such body corporate. A competent State legislature is not\r\ndeprived of its power to legislate on the subjects falling within its\r\njurisdiction in terms of List II of the Seventh Schedule. The 1966 Act </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">does not bar the State Legislature to legislate on the fields of its\r\nlegislative competence falling under List II of the Seventh Schedule or\r\neven in List III of the Seventh Schedule, subject to the limitations as\r\nare prescribed in the Constitution.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Question No. (iii) - Whether the impugned enactment (Haryana\r\nAct) falls within the legislative competence of the Haryana State\r\nLegislature or it falls in Entry 44 of List I of the Seventh Schedule\r\nof the Constitution?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>47. The primary reliance of the writ petitioner is on the judgment of this\r\nCourt reported as Rajendra N. Shah. The issue before this Court in\r\nthe said judgment was whether the Constitution 97th Amendment\r\nintroducing Part IX-B, which was found to be non est by the Gujarat\r\nHigh Court for want of ratification by half of the States under the\r\nproviso to Article 368(2), is sustainable. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">48. The said judgment is not applicable to the facts of the present case\r\nthough it deals with Entry 44 of List I and Entry 32 of List II. The Court\r\nwas dealing with the legality of the Constitutional Amendment and\r\nfound that it is entirely for the States to legislate in respect of\r\ncooperative societies falling in Entry 32 of List II. It is only multi-State\r\ncooperative societies which fall within the power of the Parliament to\r\nlegislate in terms of Entry 44. The amendment made by Parliament in\r\nrespect of co-operative societies was not with the approval of half of\r\nthe States. The said judgment has no applicability to the facts of the\r\npresent case as the Haryana Act does not have any extra-territorial\r\njurisdiction that it is not applicable to more than one State. The SGPC\r\nwas a Board which was intra-State body corporate prior to\r\nreorganisation of the State in the year 1966. The reorganisation has\r\nrendered the SGPC as an inter-State body corporate but the legislative\r\npower to legislate on the subject of incorporation of the Corporations\r\nwould be within the jurisdiction of the Haryana State Legislature. Entry\r\n32 deals with unincorporated trading, literary, scientific, religious and\r\nother societies and associations. In respect of such unincorporated\r\ntrading, literary, scientific, religious and other societies and\r\nassociations, the competent legislature is the State. In terms of Entry\r\n44 of List I, the Parliament will have jurisdiction only if the SGPC under </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the 1925 Act continues to be an inter-State entity. The jurisdiction of\r\nthe successor States either to repeal, modify or enact a new law has\r\nnot been restricted by the 1966 Act, though it is a special law within\r\nthe meaning of Articles 2, 3 and 4 of the Constitution. The SGPC\r\nbecame inter-State body corporate not because of Entry 44 List I but\r\nbecause of reorganisation of the territories of the erstwhile State of\r\nPunjab. Therefore, Entry 44 would have no applicability in respect of\r\nlegislative competence of the State of Haryana to enact the Haryana\r\nAct.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>51. The 1966 Act as well as the 1957 Act confer power on the Central\r\nGovernment for smooth transition of new States coming into existence\r\nas a consequence of the reorganization. There is no provision in the\r\n1966 Act which confers legislative power upon the Parliament in\r\nrespect of the subjects over which the State has legislative\r\ncompetence in terms of List II. Therefore, the transitional provisions\r\ni.e., the 1966 Act or the 1957 Act do not impinge upon the legislative\r\ncompetence of the State legislature to enact a law on the subjects\r\nmentioned in the List II.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Question No. (iv)- Whether, the impugned Act falls in List-III\r\n(Concurrent List) Schedule VII, which required the assent of the\r\nPresident of India as per Article 254(2) of the Constitution of\r\nIndia, and in the absence of such assent, void?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>53. In view of such Entry being in the concurrent list, the State can\r\nlegislate in respect of charities, charitable institutions, charitable and\r\nreligious endowments and religious institutions. The assent of the\r\nPresident would be necessary if there is an existing statute and the\r\nState law is contrary to some of the provisions of the Central law. The\r\nHaryana Committee is the incorporation of a juristic entity which more\r\nappropriately falls within the domain of Entry 32 of List II. Though the\r\nHaryana Committee is in respect of religious purpose, but the prime\r\nintention is of an incorporation of a juristic entity to manage the affairs\r\nof the Sikhs in the State. Thus, Entry 32 is wide enough to include\r\nincorporation of such statutory entity.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>54. Alternatively, even if it is assumed that the Haryana Act is in\r\nfurtherance of Entry 28 of List III, the same cannot be said to be void\r\nfor the reason that it has not been kept reserved for the assent of the\r\nPresident. Such an argument is based upon the reason that the 1925\r\nAct is an inter-State legislation, therefore, the assent of the President is\r\nnecessary. As stated before, the 1925 Act was originally an intra-State\r\nlegislation enacted by the State legislature. It subsequently became an\r\ninter-State body only by virtue of the 1966 Act. Since the power to\r\nlegislate conferred on the State legislature has not been affected in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">any manner, therefore, the State would have power to legislate both\r\nunder Entry 28 of List III or Entry 32 of List II for the reason that the\r\n1925 Act is not an inter-State body corporate in respect of which the\r\nParliament incorporated such Board. Therefore, we do not find any\r\nmerit in the said argument.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Question No. (i) - Whether any fundamental rights of the\r\npetitioners under Articles 25 and 26 of the Constitution of India\r\nare violated, so as to entitle the petitioners to invoke the\r\njurisdiction of this Court under Article 32 of the Constitution?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>55. It is not disputed that the Haryana Act is similar to the 1925 Act having\r\nsimilar provisions of constituting a committee to manage the affairs\r\nunder the Act. The Haryana Committee is the Committee constituted\r\nunder Section 3 of the Haryana Act for the management and control of\r\nthe Gurdwaras and Gurdwara properties within the State of Haryana.\r\nThe Gurdwara property in terms of Section 2(f) of the Haryana Act\r\nmeans all movable and immovable properties of a Gurdwara or any\r\ninstitution which, immediately before the appointed day, vested or was\r\nkept in deposit in the name of any Board, Trust, Committee, Gurdwara\r\nManagement or was being regulated under the provisions of the 1925\r\nAct. The members of the Committee have to be elected from the\r\neligible voters who is Amritdhari Sikh, a Sikh, and who is eighteen years\r\nof age, but not a Patit Sikh and is not an insolvent, mentally retarded or\r\nan insane person. The co-option is from the members of the\r\ncommunity alone. Therefore, the affairs of the religious minority in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">State i.e., Sikhs is left in the hands of the Sikhs alone in the same\r\nmanner as was under the 1925 Act. The Haryana Act also provides for\r\nHaryana Sikh Gurdwara Judicial Commission in the same manner as is\r\nprovided under the 1925 Act. The affairs of the Gurdwara are again\r\nrequired to be managed by local Gurdwara Committee. Since the\r\naffairs of the Sikh minority in the State are to be managed by the Sikhs\r\nalone, therefore, it cannot be said to be violative of any of the\r\nfundamental rights conferred under Articles 25 and 26 of the\r\nConstitution.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>56. The question as to whether the writ petition is maintainable is\r\nanswered in the affirmative, inter-alia on the ground that the said writ\r\npetitions have been pending before this Court for almost 8 years\r\nwherein an interim order has been in operation throughout.\r\nAdditionally, the questions, being purely legal, have been examined to\r\ngive finality to the issues arising in the two matters.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>57. In view of the above, we do not find any merit in the writ petitions.\r\nThe same are dismissed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '00a348ba4e63e99613ab949f9e5798c6.jpg', 'd99233cb63149d3efc70ddc693f4e110.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-22', 1, '', '', '2022-09-21 18:33:13', '2022-09-22 10:54:31'),
(2216, 'QTgcf5lwWpofmCefQ446pAcJL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Factories Act. Manufacture being per se hazardous does not make the establishment hazardous. The process of manufacture being hazardous for workmen of a particular age group is the relevant test. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Management of M/s Mersen India Pvt Ltd Vs The Deputy Labour Commissioner and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 4114 of 2021 decided on 6 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioner is stated to be a Company engaged in\r\nthe business of manufacture of Industrial Carbon and\r\nCarbon Brushes, which is allegedly classified as\r\nhazardous industry as defined under Section 2(cb) of\r\nthe Factories Act, 1948<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The service conditions of the workmen are stated to\r\nbe governed by the Certified Standing Orders of the\r\nCompany as also the Memorandum of Settlement\r\nentered into between the recognized Union and the\r\nemployer from time to time.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The Standing Orders were last certified by the\r\nCertifying Officer on 18.03.2000 where the age of\r\nretirement was enhanced from 55 years to 58 years\r\nwhich is also confirmed by the Appellate Authority by\r\norder dated 14.11.2002 and by this Court in\r\nW.P.No.45985/2002 on 10.07.2007.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n5. A Tripartite Wage Settlement came to be entered\r\ninto with the respondent No.3 on 13.02.2017. It is\r\ncontended that the said settlement is a package deal\r\nand as such, there cannot be any claim made\r\ncontrary to the settlement arrived at in the year\r\n2017. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The petitioner contends that despite the settlement,\r\nthe respondent No.3-Union had submitted an\r\namendment to the existing Standing Orders seeking\r\nfor enhancement of the retirement age to 60 years\r\nand if need be upto 62 years on satisfaction of\r\ncertain conditions.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. The points that would arise for consideration by this\r\nCourt are:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Whether any amendment to the Model\r\nStanding Orders would automatically make\r\nthe same applicable to the Certified\r\nStanding Orders, certified for Industrial\r\nEstablishments?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. What are the aspects that are required to\r\nbe considered by the Certifying Authority\r\nwhile approving an amendment to the\r\nCertified Standing Orders?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. For an establishment to claim itself to be\r\nhazardous, would there be a requirement\r\nfor registration under the Factories Act,\r\n1948 as an hazardous industry?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n4. Whether the order passed by the\r\nCertifying Authority and the Appellate\r\nAuthority suffers any legal infirmities\r\nrequiring interference at the hands of this\r\nCourt?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. What order? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. Answer to Point No.1: Whether any amendment\r\nto the Model Standing Orders would\r\nautomatically make the same applicable to the\r\nCertified Standing Orders, certified for\r\nIndustrial Establishments?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17.1. I have in an earlier judgment in the case of\r\nMANAGEMENT OF ULTRATECH CEMENT LTD.,\r\nVS. RAJASHREE CEMENT GENERAL WORKERS\r\n& STAFF UNION & OTHERS\r\n[W.P.NO.204077/2018 DATED 16.03.2021]\r\nalready held that any amendment to the Model\r\nStanding Orders scheduled to the Rules would\r\nnot be automatically applicable. In the event of\r\neither the employer or the trade union or the\r\nworkman wanting to make any change or\r\nmodification in the Standing Orders applicable,\r\nnecessary application has to be made in terms\r\nof Section 10 of the Industrial Employment\r\n(Standing Orders) Act, 1946 (for short, ‘IESO\r\nAct’) and it is up to the Certifying Officer to,\r\nafter considering all relevant aspects, allow the\r\namendment and certify the same.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. Answer to Point No.2: What are the aspects\r\nthat are required to be considered by the\r\nCertifying Authority while approving an\r\namendment to the Certified Standing Orders?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18.2. A perusal of above provision would indicate that\r\nwithin 6 months from the date on which the Act\r\nbecomes applicable to an industrial\r\nestablishment, an employer should prepare the\r\nStanding Orders proposed by him for adoption\r\nin its Industrial Establishments.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">18.8. In terms of Section 4 of IESO Act, the Standing\r\nOrders would be certifiable only if provisions are\r\nmade thereunder for all matters set out in the\r\nSchedule, which is applicable to that particular\r\nindustrial establishment and the Standing </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">orders are otherwise in conformity with the\r\nprovisions of the Act. It is also made a function\r\nof the Certifying Officer or the Appellate\r\nAuthority to adjudicate upon the fairness or\r\nreasonableness of the provisions of any\r\nStanding Orders. This being for the reason that\r\nthe schedule only provides a broad basis\r\nitemized list as regards what is required to be\r\nincluded, it is on that basis that the detailed\r\ndraft of the Standing Orders would have to be\r\nappreciated and adjudicated by the Certifying\r\nOfficer. One of the important aspects to be\r\ntaken into consideration is fairness and\r\nreasonableness of the provisions made in the\r\nsaid Standing Orders.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18.16.In the event of an agreement being arrived at\r\nbetween the employer or the trade union or\r\nrepresentative body of the workmen as regards\r\nthe modification to be carried out, the said\r\nagreed clauses can be submitted to the\r\nCertifying Officer, who would then permit the\r\nmodification and certify the Model Standing\r\nOrders. In the event of only one of the parties\r\nseeking for modification i.e., either the\r\nemployer, the trade union or the\r\nrepresentatives body of the workmen or\r\nworkman seeking for a modification, then an\r\napplication along with 5 copies of such\r\nmodification sought for would have to be filed. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18.17.The Certifying Officer would issue necessary\r\nnotices to all other stakeholders and thereafter\r\nupon hearing the parties and following the\r\nprocedure as prescribed under Sections 4 and 5\r\nof IESO Act extracted hereinabove could certify\r\nthe modification, of course, there being an\r\nappellate remedy provided under Section 6 of\r\nIESO Act. Thus, the Certifying Authority or the\r\nAppellate Authority would have to consider all\r\naspects relating to the modification either by\r\naddition, deletion or substitution by applying\r\nthe principles of fairness and reasonableness as\r\nalso considering that the said modifications are\r\ncovered by the Act or the Rules and/or not\r\nviolative of any of the provisions applicable\r\nthereto, as held in Guest Keen Williams’s\r\nCase, Wipro Infrastructure Engineering’s\r\nCase, Barauni Refinery’s Case, Jeewanlal’s\r\nCase supra. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">19. Answer to Point No.3: For an establishment to\r\nclaim itself to be hazardous, would there be a\r\nrequirement for registration under the\r\nFactories Act, 1948 as an hazardous industry?</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19.4. Thus, what is required to be determined is not\r\nwhether the process of manufacture per se is\r\nhazardous but as to whether the process of\r\nmanufacture is hazardous for a workman of a\r\nparticular age group. Therefore, in my <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">considered opinion obviously in the event of an\r\nindustry being designated as hazardous under\r\nthe Factories Act, the same would be\r\nconsidered to be hazardous. However, in\r\nrespect of the aspect of determining of age of\r\nretirement, it would be required that the\r\nprocess of manufacture be determined as\r\nhazardous or not on the basis of age of the\r\nworkman after visiting the industrial\r\nestablishment and ascertaining the process of\r\nmanufacturing.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. Answer to Point No.4: Whether the order\r\npassed by the Certifying Authority and the\r\nAppellate Authority suffers any legal infirmities\r\nrequiring interference at the hands of this\r\nCourt?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">20.1. In the present matter, the Certifying Authority\r\nhas referred to certain decisions and has\r\nallowed the application for modification filed by\r\nthe Trade Union under Section 10 of IESO Act.\r\nSimilar is the situation with the Appellate </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Authority when the employer went on appeal\r\nunder Section 6 of IESO Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20.7. In view of the above, both the orders passed by\r\nCertifying Authority and the Appellate Authority\r\nwould be required to be set aside and the\r\nmatter remitted back to the Certifying Authority\r\nfor fresh consideration as per the principles\r\nenunciated hereinabove and the decision of the\r\nvarious Courts more so in Guest Keen\r\nWilliams’s Case, Wipro Infrastructure <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Engineering’s Case, Barauni Refinery’s\r\nCase, Jeewanlal’s Case.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20.8. The certifying authority is directed to inspect\r\nthe industrial establishment of the petitioner,\r\nascertain if a workman between the age group\r\nof 58 years and 60 years can be involved in the\r\nmanufacturing process without any harm being\r\ncaused to him/her after ascertaining the\r\nmanufacturing process and the age and health\r\nrequirements of the workmen. If it is\r\npermissible and possible for persons above 58\r\nyears and within 60 years to discharge such\r\nmanufacturing functions, to approve the same,\r\nif not to reject the modification sought for.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. Answer to Point No.6: What order?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. The Writ Petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '021558359cc7fcb72b8947d309e48f50.JPG', 'd2e05d9f3338e559a40e00b4b7ce898b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-23', 1, '', '', '2022-09-21 18:56:25', '2022-09-23 06:43:46'),
(2217, 'bp7Vg4eMNuXU1Z29XokihcLq2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Grama Swaraj and Panchayat Raj Act. Chief Executive Officer cannot terminate employees of the Grama Panchayat since the competent authority is the Gram Panchayat. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Devaraju D Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 56037 of 2018 decided on 9 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S Sunil Dutt Yadav.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The Chief Executive Officer in the impugned\r\norder at Annexure-A has noticed that the reply given by the\r\npetitioner to the show cause notice issued by the Office of\r\nthe Zilla Panchayat and concluded that explanation was not </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">fit for acceptance and has recorded a finding that there was\r\nmisconduct on the part of the petitioner.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. It is noticed that as per Section 113(3) of the\r\nKarnataka Grama Swaraj and Panchayat Raj Act (for short\r\n\'the Act\'), it is the Grama Panchayat that may reduce in\r\nrank, remove or dismiss any employee appointed by it.\r\nClearly, the order is one without jurisdiction. Even\r\notherwise, the procedure followed in termination does not\r\ntake note of the principles natural justice. On such short\r\nground, the impugned order is liable to be set aside.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. Insofar as the payment of backwages is\r\nconcerned, it is contended by the learned counsel appearing\r\nfor the Grama Panchayat that the backwages requires to be\r\nwaived as even after the Government Circular of\r\n29.09.2020, the petitioner has not approached for redoing\r\nof the enquiry.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n7. It must be noted that when the matter is\r\npending before the Court, it is for the respondent -\r\nemployer to move the Court for disposal of the matter while\r\nseeking liberty to initiate fresh proceedings.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. Even otherwise, it is noted that the impugned\r\norders are wholly without jurisdiction and in complete\r\ndisregard to Section 113(3) of the Act and are set aside.\r\nThe petitioner is entitled to be re-instated with continuity in\r\nservice. Accordingly, as an equitable measure, taking note\r\nof the public character of the respondent - Authority,\r\nbackwages are limited to 50% from the date of circular. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">Liberty is reserved to initiate fresh enquiry as per law if the\r\nauthority considers appropriate.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n9. Accordingly, the writ petition is disposed off. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e32c2e0c9aac4e8a125ac6a3b48edd89.JPG', '3bca4dc24b203eeca123b0b8b31db31c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-22', 1, '', '', '2022-09-21 20:11:25', '2022-09-22 12:20:49');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2218, 'Du4mkyoGs5wDhfpQri29YPagV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Collision in high seas. Provisions of the IPC apply even when the ship is flagged outside India and the flag ship does not come within the territory of India so long as the accident takes place within Exclusive Economic Zone. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CMA CGM Asia Shipping Pte Ltd Vs Union of India.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 5895 of 2022 decided on 16 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Brief facts that lead the petitioner to this Court in the\r\nsubject petition, as borne out from the pleadings, are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The petitioner is a company incorporated under the laws of\r\nSingapore, having its registered office at Singapore. The petitioner\r\nwas the demise charterer of the vessel and is engaged in the\r\nbusiness of shipping and logistics and also involved in containerized\r\ncargo transportation around the world through its fleet vessels. The\r\npetitioner claims that it has no office or any other presence in India.\r\nThe respondent/Union of India in the Mercantile Marine\r\nDepartment, Mangalore communicates on 17-08-2021 granting\r\nauthorization to the Department at Bangalore for conduct of a\r\npreliminary enquiry of marine casualty involving an Indian fishing\r\nvessel ‘Rabah’. The background that led to the said authorization is\r\nan incident that took place on 13-04-2021. The vessel owned by\r\nthe petitioner went on sail on 08-04-2021 from the port of\r\nSingapore to Nhava Sheva with draft 15.0 m fore and 15.0 m aft.\r\nThe vessel was loaded with cargo of 102888 tons in 4693 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">containers which according to the petitioner was properly stowed.\r\nThe vessel had 25 seamen and was fully and properly manned and\r\nfurnished with everything necessary for the vessel and the intended\r\nvoyage. The claim of the petitioner is that the vessel was seaworthy\r\nin all respects with the main engine and machinery, bridge\r\napparatus, aids to navigation and mooring equipment in good\r\norder.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 3. A fishing boat named ‘Rabah’ containing 14 fishermen\r\nincluding its captain, which according to the petitioner, did not have\r\nlights, navigational aids, and did not even have an insurance,\r\ncollided with the vessel at 12.15 a.m. when the vessel was sailing\r\nas per planned sea passage at a distance of about 49 Nautical Miles\r\nin the international waters of the coast of Mangalore. The weather\r\nconditions were rough and the visibility was relatively low at the\r\ntime when the fishing boat was plying around the vicinity that\r\ncaused the accident. When the accident took place, the vessel\r\nimmediately turned back to return to the post where the contact\r\nwas made and the Master of the vessel, was spoken to, and\r\ninformed about the incident. A message was also broadcasted for </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">assistance of nearby vessels and also Indian coast guards. On\r\nreturning to the place of incident, the fishing boat was located in an\r\ninverted position and two fishermen who were sitting on the top of\r\nthe fishing boat were rescued by the vessel and provided necessary\r\nfirst aid and the allegation is that none of the fishing boats in the\r\nvicinity cooperated despite request from the vessel. Based upon\r\nthe said incident, a nomination comes about from the hands of the\r\nrespondent for surveying the place. An order was passed\r\nnominating a Nautical Surveyor-cum-Deputy Director to carry out\r\npreliminary enquiry into the marine incident/casualties between the\r\nvessel and the fishing boat in terms of Section 359 of the Act.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. The claim of the petitioner is that the preliminary enquiry\r\nunder Section 359 embodies the principles of casualty investigation\r\nundertaken by each administration at coastal state under Article 94\r\nof the United Nations Convention on the law of the Sea (‘UNCLOS’\r\nfor short). On conduct of a preliminary enquiry it was opined that\r\nvessel was responsible for rash and negligent act which killed 12\r\nfishermen including the captain of the fishing boat, and thereafter\r\non the report of the preliminary enquiry, a crime comes to be </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">registered against all the accused including the present\r\naccused/accused No.3. The crime is registered on 21.08.2021.\r\nCognizance is taken by the learned Magistrate in the light of the\r\nfact that crime is registered by a public servant in C.C.No.2328 of\r\n2021 and summons were issued to all the three accused, accused 1\r\nand 2 being Singapore nationals and accused No.3 is the shipping\r\ncompany that owns the vessel. It is accused No.3 that has knocked\r\nthe doors of this Court in the subject petition</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. I have given my anxious consideration to the submissions\r\nmade by respective learned counsel and perused the material on\r\nrecord. In furtherance whereof, the following issues arise for my\r\nconsideration:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Whether the Merchant Shipping Act insofar as it\r\npenalizes action under Sections 285 and 286 of the Act\r\nis applicable to the petitioner?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) Whether the penal provisions of the IPC or the Cr.P.C.\r\nare applicable to the petitioner whose ship is flagged\r\noutside India and the flag ship does not come within the\r\nterritory of India?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) Whether the Company/petitioner/accused No.3 could be\r\nmade a party to the proceedings?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n(iv) Whether non-conduct of inquiry under Section 202 of\r\nthe Cr.P.C. on a complaint registered by a public\r\nservant vitiates entire proceedings? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(v) Whether the respondent did have the authority to file\r\nthe complaint?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Issues No.1 and 2 are intertwined, therefore are taken\r\nup together:\r\n (i) Whether the Merchant Shipping Act insofar as it\r\npenalizes action under Sections 285 and 286 of\r\nthe Act is applicable to the petitioner?\r\n(ii) Whether the penal provisions of the IPC or the\r\nCr.P.C. are applicable to the petitioner whose ship\r\nis flagged outside India and the flag ship does not\r\ncome within the territory of India? <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The afore-narrated facts are not in dispute. The crime is at\r\nthe stage of issuance of summons. On summons being issued to\r\nthe petitioner, along with two others, has knocked the doors of this\r\nCourt with the afore-quoted contentions. To consider the respective\r\ncontentions of both the petitioner and the respondent, it is germane\r\nto notice the statutory frame work of the Merchant Shipping Act,\r\n1958, Maritime Zones Act, 1976, the provisions of the Indian Penal\r\nCode, 1860, Code of Criminal Procedure, 1973 and the Articles of\r\nthe United Nations Convention on the law of the Sea. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. Reference being made to the judgment of the Apex Court\r\nin the case of REPUBLIC OF ITALY (supra) in the circumstances\r\nbecomes apposite. The Apex Court considers entire spectrum of\r\nthe provisions that have fallen for interpretation in the case at\r\nhand. The Apex Court was considering an act of crime by Italian\r\nnationals which would become offences punishable under the IPC.\r\nThe Republic of Italy had enacted Government decree which was\r\nlater converted into Law of Parliament of Italy to protect Italian\r\nships from piracy in international seas. When the vessel had\r\nproceeded about 38 nautical miles on the high seas towards\r\nDjibouti, an incident happens where two Indian fishermen were\r\nshot leading to their death. Proceedings were instituted against\r\nthose Italian nationals for having committed an act that would\r\nbecome punishable under the IPC. The argument was that the act\r\nhaving taken place in the high seas at 38 nautical miles, the Italian\r\nnationals being tried within the territory of India was without\r\njurisdiction. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the light of the said judgment of the Apex Court, the contention\r\nof the learned counsel for the petitioner that the very proceedings\r\ninstituted are without jurisdiction is rendered unacceptable, as the\r\nApex Court, as observed hereinabove, takes note of all the\r\nprovisions that are now urged in support of the contention that the\r\nsame are not applicable. The Apex Court, in the aforesaid\r\njudgment, considers every aspect of Maritime Zone Act, EEZ, the\r\nconcept of nautical miles from a standard point and holds that the\r\nlimit of 220 nautical miles as indicated in Article 27 of the UNCLOS\r\nis internationally recognized. Sub-section (1) of Section 7 of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Maritime Zones Act stipulates the limit of EEZ to be perfectly in\r\ntune with the terms of UNCLOS. The Apex Court, therefore, holds\r\nthat Article 97 of the UNCLOS has no application to the EEZ. The\r\nunmistakable inference that could be drawn from a conjoint reading\r\nof the afore-quoted provisions and the judgment of the Apex Court\r\nis that Article 97 of UNCLOS would be applicable to the “High Seas”\r\nand not to the ‘EEZ’. Therefore, the point so arisen for\r\nconsideration with regard to applicability of the Act or the\r\nprovisions of the IPC or Cr.P.C. are held against the petitioner for\r\nthe reasons aforesaid and the conclusion reached that the penal\r\nprovisions under the IPC and the procedural provisions under the\r\nCr.P.C. are applicable to the petitioner and can be tried for the said\r\noffences, as the notification issued in the year 1981 under the\r\nMaritime Zones Act which the Government is empowered even\r\nunder Article 297 of the Constitution, would make provisions of the\r\nIPC and Cr.P.C. applicable to the petitioner in the case at hand.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n 16. Insofar as the issue with regard to whether the entire\r\nproceedings are contrary to Article 97 of UNCLOS is concerned, is\r\nheld in the negative and against the petitioner for the very</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">same reasons indicated hereinabove, as the Articles which bear\r\nconsideration at the hands of the Apex Court in the case of\r\nREPUBLIC OF ITALY (supra) considers this very issue of whether\r\nArticle 97 bars a trial of a foreign national in the Courts of India has\r\nheld against the contentions of the Republic of Italy and, therefore,\r\nthe unmistakable inference would be that the proceedings so\r\ninstituted against the petitioner is not contrary to Article 97 of the\r\nUNCLOS. Both the issues that have arisen for consideration are\r\nanswered against the petitioner.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Issue No.3:\r\n(iii) Whether the Company/petitioner/accused No.3 could be\r\nmade a party to the proceedings? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. To consider this point, it is germane to notice Section 441\r\nof the Act. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 441 makes every person who at the time of the offences\r\ncommitted in-charge of, or was responsible to the Company for the\r\nconduct of business of the Company, as well as the Company, to be\r\ndeemed to be guilty of the offences. Therefore, there is no\r\ngainsaying that the Company cannot be made a party to the\r\nproceedings as only the Master or Captain of the ship is responsible\r\nfor what happens in the ship. In the light of the Act and the\r\nincident being covered by Maritime Zones Act and the vessel being </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">engaged by the Company, if the Company is not a party to these\r\nproceedings, there could not have been any vicarious liability\r\nfastened upon the Company. Therefore, being owner of the\r\nCompany to which the ship belongs, the master of the ship was a\r\nservant of, ought to be hauled into the proceedings in terms of\r\nSection 441 of the Act. Therefore, the submission of the learned\r\ncounsel for the petitioner that there is no allegation against the\r\nCompany and it is not directly involved in the mishap that\r\nhappened is unacceptable, as Section 441 depicts vicarious liability\r\non the Company as a whole. Therefore, issue No.3 is also answered\r\nagainst the petitioner.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Issue No.4:\r\n(iv) Whether non-conduct of inquiry under Section 202 of\r\nthe Cr.P.C. on a complaint registered by a public\r\nservant vitiates entire proceedings?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. A subsequent development, is that the judgment in\r\nCHEMINOVA INDIA LIMITED (supra) was tossed before the Apex\r\nCourt. The Apex Court reversed the judgment rendered by the\r\nPunjab and Haryana High Court by holding that if the complaint is\r\npreferred by a public servant both obligations – one of recording of\r\nsworn statement of the complainant and the other an inquiry being\r\nconducted by postponing the process under Section 202 would\r\nstand exempted. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Apex Court while reversing the judgment of the learned single\r\nJudge of Punjab and Haryana holds that the procedure\r\ncontemplated under Section 202 of the Cr.P.C. is to be viewed\r\nkeeping in mind the complainant is a public servant who has filed\r\nthe complaint in the discharge of his official duty and the\r\nLegislature in its wisdom has itself placed the public servant on a\r\ndifferent pedestal. The Apex Court further holds that the object of\r\nholding an inquiry/ investigation before taking cognizance in cases\r\nwhere accused resides outside the territorial jurisdiction of the\r\nMagistrate is to ensure that innocents are not harassed\r\nunnecessarily. Since the Code itself provides for exemption, if the\r\ncomplaint is filed by a public servant, the rigour of Section 202 of\r\nthe Cr.P.C. is also diluted. Therefore, submission of the learned\r\ncounsel for the petitioner that non-conduct of an inquiry by the\r\nlearned Magistrate under Section 202 of the Cr.P.C. has vitiated the\r\nproceedings is rendered unsustainable and is, therefore, rejected.\r\nIssue No.4 that arose for consideration is also answered against the\r\npetitioner.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Issue No.5:\r\n(v) Whether the respondent did have the authority to file\r\nthe complaint?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. Learned counsel for the petitioner also places reliance\r\nupon the judgment of the Apex Court in the case of CAPTAIN\r\nSUBASH KUMAR V. PRINCIPAL OFFICER, MERCANTILE\r\nMARINE DEPARTMENT to contend that the issue with regard to\r\ncompetence of registering the crime stands covered and the\r\npetition could be allowed even on this score. This submission is\r\nunacceptable, as the very judgment permits continuance of action\r\nto be taken under Section 363 of the Act, in accordance with law.\r\nEven otherwise, the facts in that case was that a shipping casualty\r\nhad occurred at a distance 232 nautical miles, which was not even\r\nwithin the Exclusive Economic Zone. Therefore, the Apex Court\r\nheld that an officer who had conducted formal investigation into\r\nsuch casualty was not empowered. It is therefore, the Apex Court\r\nfurther observes that the Government could take action under <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 363 of the Act. The said judgment is inapplicable to the\r\nfacts in issue. In the other judgment in the case of STATE OF U.P.\r\nV. SINGHARA SINGH – AIR 1964 SC 358, the Apex Court was\r\nonly considering that if a particular thing has to be done in a\r\nparticular manner or a statute prescribing a particular mode of\r\nexecution, it shall be done by that mode and none else. There can\r\nbe no qualm about the principles so laid down by the Apex Court\r\nand other High Courts in the respective cases relied on by the\r\nlearned counsel for the petitioner. They are judgments which have\r\nbeen rendered prior to the judgment of the Apex Court in the case\r\nof REPUBLIC OF ITALY (supra). All the earlier judgments, so\r\nrendered, would get subsumed into the judgment of the Apex Court\r\nin the case of REPUBLIC OF ITALY, as the Apex Court considers\r\nevery contention that is urged by the petitioner herein with regard\r\nto applicability of the IPC and CrPC and applicability of exclusive\r\neconomic zone. Therefore, none of the judgments relied on by the\r\nlearned counsel representing the petitioner would merit any\r\nacceptance, as they are such armory in his arsenal that would not\r\nlend any support or assist him in any of the contentions advanced\r\nby him.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. For the aforesaid reasons, the Writ Petition lacking merit,\r\nstands dismissed</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '72641519d14337614efc9f126c41f508.JPG', '6e3d51334851a6d1cb7a7171085d8ae6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-22', 1, '', '', '2022-09-22 00:35:40', '2022-09-22 12:54:30'),
(4520, 'UWA9I0AfPh6cREH0zUKvQ7svj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Property of grandfather directly inherited by grandson, when his father had predeceased the grandfather, becomes the self-acquired property of the grandson. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sri Bhimasi Fakirapaa Bjjjur and others Vs Nagesh Bhimappa Waddar and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular First Appeal 23 of 2022 decided on 22 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.R. Krishna Kumar and Justice K.S. Hemalekha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Both these appeals arise out of the impugned judgment and decree dated 10.09.2001 passed in O.S.No.155/2001 by the Civil Judge, Senior Division, Muddebihal (for short the trial Court’), whereby the suit for partition and separate possession in respect of the suit schedule immovable properties filed by the plaintiffs (respondent Nos.1 to 6 in both the appeals) against the appellants-defendant Nos.2 to 11 and respondent No.7-defendant No.1 was decreed by the trial Court in favour of the plaintiffs against the defendants.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The fact leading to the present appeals may be briefly stated as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Respondent Nos.1 to 6 – plaintiffs presented the plaint claiming partition and separate possession of their alleged 8/9th share in the suit schedule immovable properties and for other reliefs. Plaintiff Nos.1 to 3 and 5 and 6 claimed to be the children of defendant No.1 - Bhimappa Nagappa Waddar, while plaintiff No.4 – Smt.Janaki Bai was his wife. Defendant No.1 remained ex-parte in the suit and did not contest the same. Defendant Nos.2 to 11 were alienees in respect of portions of the suit schedule properties and they contested the suit. It is relevant to state that undisputedly, the suit schedule properties had been alienated and sold in favour of defendant Nos.2 to 11 during the period 1980-85 under various sale deeds executed by defendant No.1 in favour of defendant Nos.2 to 11. It is relevant to state that while plaint ‘A’ schedule properties are landed properties comprising of six items, plaint ‘B’ schedule property is a residential house.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Based on the above pleadings, the following points arise for my consideration in the present appeals:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Whether the application, I.A.No.1/2021 filed by the appellants in RFA No.23/2002 under Order 41 Rule 27 CPC for permission to produce additional evidence deserves to be allowed?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) Whether the trial Court was justified in coming to the conclusion that the suit schedule properties were the ancestral joint family properties in the hands of defendant No.1, Bhimappa Nagappa Waddar?&nbsp;<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iii) Whether the impugned judgment and decree passed by the trial Court warrants interference by this Court in the present appeal?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Re- Point No.(i):-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. As stated supra, the trial Court recorded a finding that the suit schedule properties were the ancestral joint family properties of defendant No.1, in which the plaintiffs were entitled to a share and that the alienations made by defendant No.1 in favour of defendant Nos.2 to 11 were not for legal necessity or benefit of the estate and accordingly, the same were not binding upon the plaintiffs or their share in the suit schedule properties.&nbsp;<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12.3 A perusal of I.A.No.1/2021, the documents sought to be produced and the Statement of Objections filed by respondent Nos.1 to 6 is sufficient to show that the documents sought to be produced relate to item Nos.1 and 2 of the suit schedule properties bearing Sy.No.112 and consequently, I am of the considered opinion that the said documents are relevant, material and essential for adjudication of the issues in controversy involved in the present appeals and for its disposal. It is no doubt true that the documents sought to be produced are post litem documents, which have come into existence during the pendency of the appeal; nevertheless, so long as the documents are not disputed by respondent Nos.1 to 6 and they relate to the suit schedule properties coupled with the fact that the suit is one for partition and separate possession of the plaintiffs’ alleged share, it cannot be said that the documents are not to be permitted to be produced by way of additional evidence and I.A.No.1/2021 deserves to be allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Accordingly, I.A.No.1/2021 is hereby allowed and Point No.1 is answered accordingly.&nbsp;<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Re- Point No.(ii):-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. A perusal of the impugned judgment and decree will indicate that the trial Court has come to the conclusion that though the suit schedule properties were the separate and self acquired properties of the propositus - Shettappa Waddar, grand father of defendant No.1, upon his demise in 1975 and since his son, Nagappa Bhimappa Waddar (father of defendant No.1) had predeceased him in 1965, the suit schedule properties were ancestral joint family properties in the hands of defendant No.1. In this regard, it is significant to note that the question, whether the self acquired and separate properties inherited by a male Hindu from his father/grand father, who expired after 1956 when the said Act of 1956 came into force is no longer res integra in the light of the judgment of the Apex Court in Uttam’s case<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13.7 In the instant case, it is an undisputed fact that except seeking for a decree for partition simpliciter, the plaintiffs have not sought for any declaration that the alienations made by defendant No.1 prior to the suit during the years 1980-1985 are not binding upon them. It is well settled that Kartha of a Hindu undivided family is empowered to alienate joint family/ancestral properties for legal necessity or benefit of the estate of the joint family and the validity of such an alienation would have to be adjudicated depending on the facts of the case. In other words, there was no bar for defendant No.1 to alienate the suit schedule properties in favour of defendant Nos.2 to 11 including the alleged share of&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the plaintiffs and so long as the said alienations were affected prior to institution of the suit, it was incumbent upon the plaintiffs to seek a declaration that the said alienations by defendant No.1 were not binding upon the plaintiffs or their alleged share in the suit schedule properties</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">13.10 A perusal of the aforesaid order of this Court will clearly indicate that no categorical or conclusive finding has been recorded by this Court to the effect that the suit schedule properties are ancestral joint family properties of defendant No.1. On the other hand, the said order contains mutual contradictions, ambiguities and inconsistencies, which are sufficient to show that it was an open remand by this Court to the trial Court for reconsideration afresh including the question as to, whether the suit schedule properties were the ancestral&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">joint family properties of defendant No.1 or whether the same were his separate self acquired properties. Under these circumstances, we are of the view that the trial Court committed an error in coming to the conclusion that the suit schedule properties are the joint family properties by wrongly placing reliance upon the aforesaid remand order of this Court and consequently, even this finding recorded by the trial court deserves to be set aside.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Accordingly, we answer Point No.2 by holding that the suit schedule properties were the separate and self acquired properties of defendant No.1 – Bhimappa Nagappa Waddar and not his joint family / ancestral properties and that the alienations made by him in favour of defendants 2 to 11 are perfectly legal, valid and proper and that the plaintiffs are not entitled to any share in the said properties.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Re-Point No.(iii):-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. As stated supra, while dealing with Point No.1, we have already come to the conclusion that the documents sought to be produced by way of additional evidence are&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">relevant and material for the purpose of adjudication / disposal of the present appeals and that the same are required for the purpose of pronouncing judgment in the appeals. The sale deed sought to be produced by way of additional evidence also indicates that the plaintiffs having signed as witnesses to the documents have categorically and unequivocally admitted that the defendant No.1 was the sole and absolute owner of the properties conveyed under the said sale deed, thereby falsifying their claim that the suit schedule properties were joint family ancestral properties, particularly when all the suit schedule properties including the properties alienated in favour of defendants 2 to 11 prior to the suit and the properties alienated by defendant No.1 during the pendency of the appeals were all acquired by the defendant No.1 by succession and there were his separate and self acquired properties.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14.2 Insofar as the judgments relied upon by the respondents and the other judgments relied upon by the appellants are concerned, in view of our findings above and the legal principles enunciated in the judgments extracted above, we are of the view that the said judgments are not applicable to the facts of the instant case.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>We accordingly, answer Point No.3 by holding that the impugned judgment and decree passed by the trial court is illegal, unjust, unfair and opposed to the facts and probabilities of the case and the same deserves to be set aside and the suit of the plaintiffs is liable to be dismissed.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Both the appeals in RFA No.1012/2001 and RFA No. 23/2002 are hereby allowed</b></p>', 'af0bccf73a28f33e94a673d1ac65f0d2.jpeg', 'e37c230c14a00ef31953aa915caaf1aa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2024-05-21', 1, '', '', '2024-05-21 14:07:58', '2024-05-21 14:07:58'),
(2221, 'WhQX68DGI8oAFXryN2UWMQQQs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Gram Panchayat preventing licensed persons from carrying on business by introducing public auction without authority of law violates fundamental right under Article 19. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Farooq S.F and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 15593 of 2019 decided on 6 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Petitioners are running a Chicken meat stall at Huluguli\r\nVillage which comes under the jurisdiction of the respondent\r\nNo.2 and for running the same, the petitioners have obtained\r\ntrade license for the year 2018-19 by paying requisite license\r\nfee. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The respondent No.2 passed the impugned resolution\r\ndated 29.01.2019, whereby there was a prohibition for selling\r\nchicken meat, fish, sheep meat in shops alongside the highway\r\nand it was resolved to grant license to vend the above mentioned\r\nitems in the shops belonging to the panchayat through auction.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Petitioners were granted with trade licenses by the\r\nrespondent No.2 for carrying on the business of selling of fish,\r\nchicken meat etc., in their shops alongside the highway.\r\nHowever, by the impugned resolution, the respondent No.2\r\nresolved to grant license for selling meat through public auction\r\nthus depriving the petitioners of their rights to carry on the\r\nbusiness of selling meat in their shops alongside highway. In the\r\nabsence of any source of power, the impugned resolution passed\r\nby the respondent No.2 prohibiting sale of meat alongside\r\nhighway is one without authority of law and also violates\r\nfundamental right to trade, guaranteed under Article 19(1)(g) of\r\nthe Constitution of India and also contrary to Section 69 of the\r\nKarnataka Gram Swaraj and Panchayat Raj Act, 1993.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i) The writ petition is allowed </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c14ac4757fddbe2a9e8e0847e431541f.jpeg', '0948f56bdc822c0fc4841b9562164cd4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-23', 1, '', '', '2022-09-22 18:46:49', '2022-09-23 12:08:52');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2229, 'WmUseOC2gpXhqcSmelA0R7iYt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Failure to produce accused before the Court at the time of consideration of application for extension of time to file chargesheet violates Article 21 of the Constitution. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jigar Vs State of Gujarat.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1656 of 2022 decided on 23 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ajay Rastogi and Justice Abhay S. Oka.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The appellants are the accused in FIR No.112020082021862020 registered with Jamnagar City ‘A’ Division Police Station in Gujarat for the offences under Sections 3(1), 3(2), 3(3), 3(4), 3(5), and 4 of The Gujarat Control of Terrorism and Organised Crime Act, 2015 (for short ‘the 2015 Act’). Section 167 of the Code of Criminal Procedure, 1973 (for short ‘CrPC’) has been amended in relation to the cases involving offences punishable under the 2015 Act. By virtue of sub­section (2) of Section 20 of the 2015 Act, a proviso has been added in addition to the existing proviso to sub­section (2) of Section 167 of CrPC which permits the Special Court established under the 2015 Act to extend the period of 90 days provided to complete the investigation up to 180 days. The Special Court is empowered to extend the period up to 180 days on a report of the Public Prosecutor setting out the progress of the investigation and the specific reasons for continuing detention of the accused beyond the period of 90 days</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. The aforesaid First Information Report was registered on 15th October 2020. The accused were arrested on different dates. Reports were submitted by the Public Prosecutor seeking extension of time up to 180 days to complete the investigation. In three cases, the reports were submitted on 8 th January 2021, and in one case, it was submitted on 21st January 2021. The prayer for extending the time up to 180 days was allowed by the Special Court on the very day on which the applications were filed. Being aggrieved by the said orders of the Special Court, separate applications under Section 482 of CrPC were preferred by the appellants. By the impugned common Judgment dated 15th September 2021, the learned Single Judge of Gujarat High Court rejected the applications made by the appellants under Section 482 of CrPC.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>33. In the facts of the cases in hand, when the Special Court considered the reports submitted by the Public Prosecutor for grant of extension of time, the presence of the appellants was admittedly not procured before the Special Court either personally or through video conference. It is also an admitted position that information about the filing of such reports by the Public Prosecutor was not provided to the accused. It is mentioned in the impugned judgment that due to COVID – 19, it was not permissible to physically produce the accused before the Special Court. Moreover, the accused were in different prisons and, therefore, the production through video conference would have been very slow. Assuming that the process of production would have been slow, that is no excuse for not procuring the presence of the accused through video conference. Nothing is placed on record either before this Court or High Court to show that as per the Standard Operating Procedure applicable to the concerned Court in January 2021 when the impugned orders were passed granting the extension, it was not permissible to physically produce the accused before the Special Court. There is no material placed on record to show that technical reasons/difficulties prevented the prosecution from producing the accused before the Special Court through video conference. It is not possible to accept that in January 2021 in the Court at Rajkot in the State of Gujarat, there was any connectivity issue. In fact, admittedly, no such case was pleaded before the High Court in the pleadings of the respondents.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>34. We must note here that the reports were submitted by the Public Prosecutor nearly a week before the expiry of the period of 90 days. In every case, period of seven days or more was available for completion of the period of ninety days. The orders were passed by the Special Court on the reports of the Public Prosecutor on the very day on which reports were submitted. There was no reason for such hurry. The Special Court could have always granted time of a couple of days to the prosecution to procure the presence of the accused either physically or through video conference. The accused may not be entitled to know the contents of the report but he is entitled to oppose the grant of extension of time on the grounds available to him in law. In the facts of the present case, the grant of extension of time without complying with the requirements laid down by the Constitution Bench has deprived the accused of their right to seek default bail. It has resulted in the failure of justice.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>36. Once we hold that the orders granting extension to complete investigation are illegal and stand vitiated, it follows that the appellants are entitled to default bail. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>37. When they applied for bail, the appellants had no notice of the extension of time granted by the Court. Moreover, the applications were made before the filing of charge sheet. Hence, the appellants are entitled to default bail. At this stage, we may note here that in the case of Sanjay Dutt as well as in the case of Bikramjit Singh , this Court held that grant of default bail does not prevent re-arrest of the petitioners on cogent grounds after filing of charge­sheet. Thereafter, the accused can always apply for regular bail. However, as held by this Court in the case of Mohamed Iqbal Madar Sheikh & Ors. v. State of Maharashtra, re­-arrest cannot be made only on the ground of filing of charge sheet. It all depends on the facts of each case.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>38. Accordingly, the impugned orders passed by the Special Court granting extension to complete investigation and impugned judgment of the High Court are hereby quashed and set aside. The appellants shall be enlarged on default bail under sub­section (2) of Section 167 of CrPC on following conditions : </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(a) The appellants shall furnish a bail bond of Rs.2,00,000/­ with appropriate sureties as may be decided by the Special Court;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(b) The appellants shall surrender their passports to the Special Court at the time of furnishing security;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(c) The appellants shall not interfere in any manner with the further investigation, if any and shall not make any effort to influence the prosecution witnesses; and</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(d) The appellants shall mark regular attendance with such police station and at such periodical intervals, as may be determined by the Special Court; and </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(e) The appellants shall cooperate with the Special Court for early conclusion of the trial.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>39. The appeals are allowed on the above terms.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ad32804358462cddc6cd6fc0bdbe78e9.jpg', '05c1c78489f5bc4f45ab75aa3e8e6502.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-27', 1, '', '', '2022-09-26 01:07:58', '2022-09-27 10:40:04'),
(2230, 'cKsDIlLBsWJMZvEBCQbbKekkr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When suit for specific performance is not maintainable due to non-registration of the agreement, the agreement holder cannot seek injunction restraining the owner from disturbing the possession. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Balram Singh Vs Kelo Devi<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6733 of 2022 decided on 23 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice Krishna Murari</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts leading to the present appeal in a nutshell are as under:\r\nThat the respondent herein – original plaintiff (hereinafter referred\r\nto as the ‘original plaintiff’) instituted Original Suit No. 696 of 1997 before\r\nthe learned trial Court for permanent injunction only. The said suit was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">filed on the basis of an unregistered agreement to sell dated 23.03.1996.\r\nThe original plaintiff sought permanent injunction restraining the\r\ndefendant from disturbing her possession in the suit property.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.2 The learned trial Court dismissed the suit filed by the original\r\nplaintiff and refused to grant permanent injunction and allowed the\r\ncounter-claim of the defendant on the ground that original plaintiff could\r\nnot prove the agreement to sell dated 23.03.1996 and that the original\r\nplaintiff is in unauthorised possession of the suit property since\r\n08.07.1997. The learned trial Court also held that the original plaintiff\r\ncould not prove the agreement to sell for a sale consideration of Rs.\r\n14,000/- and also could not prove that she was put in possession of the\r\nsuit property on 23.03.1996.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. We have heard the learned counsel for the respective parties at\r\nlength.\r\nAt the outset, it is required to be noted that the original plaintiff\r\ninstituted a suit praying for a decree of permanent injunction only, which\r\nwas claimed on the basis of the agreement to sell dated 23.03.1996.\r\nHowever, it is required to be noted that the agreement to sell dated\r\n23.03.1996 was an unregistered document/agreement to sell on ten\r\nrupees stamp paper. Therefore, as such, such an unregistered\r\ndocument/agreement to sell shall not be admissible in evidence.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">6. Having conscious of the fact that the plaintiff might not succeed in\r\ngetting the relief of specific performance of such agreement to sell as the\r\nsame was unregistered, the plaintiff filed a suit simplicitor for permanent\r\ninjunction only. It may be true that in a given case, an unregistered\r\ndocument can be used and/or considered for collateral purpose.\r\nHowever, at the same time, the plaintiff cannot get the relief indirectly\r\nwhich otherwise he/she cannot get in a suit for substantive relief,\r\nnamely, in the present case the relief for specific performance. </span><span style=\"font-size: 12pt;\">Therefore, the plaintiff cannot get the relief even for permanent injunction\r\non the basis of such an unregistered document/agreement to sell, more\r\nparticularly when the defendant specifically filed the counter-claim for\r\ngetting back the possession which was allowed by the learned trial\r\nCourt. The plaintiff cleverly prayed for a relief of permanent injunction\r\nonly and did not seek for the substantive relief of specific performance of\r\nthe agreement to sell as the agreement to sell was an unregistered\r\ndocument and therefore on such unregistered document/agreement to\r\nsell, no decree for specific performance could have been passed. The\r\nplaintiff cannot get the relief by clever drafting.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">7. In view of the above and for the reasons stated above, both, the\r\nlearned first appellate Court and the High Court have committed a grave\r\nerror in passing a decree for permanent injunction in favour of the\r\nplaintiff as against the defendant and dismissing the counter-claim filed\r\nby the original defendant. The impugned judgment and order passed by\r\nthe High Court, confirming the judgment and decree passed by the first\r\nappellate Court and the judgment and decree passed by the first\r\nappellate Court decreeing the suit for permanent injunction and\r\ndismissing the counter-claim of the defendant are unsustainable and the\r\nsame deserve to be quashed and set aside and the judgment and\r\ndecree passed by the learned trial Court dismissing the suit filed by the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">plaintiff for permanent injunction and allowing the counter-claim of the\r\ndefendant deserves to be restored.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8. Accordingly, the present appeal is allowed. The impugned\r\njudgment and order dated 10.12.2019 passed by the High Court\r\ndismissing Second Appeal No. 330/2001, confirming the judgment and\r\ndecree passed by the first appellate Court and the judgment and decree\r\ndated 29.01.2001 passed by the first appellate Court decreeing the suit\r\nfor permanent injunction in favour of the original plaintiff and dismissing\r\nthe counter-claim of the defendant are hereby quashed and set aside.\r\nConsequently, the suit instituted by the original plaintiff for permanent\r\ninjunction on the basis of an unregistered agreement to sell is hereby\r\ndismissed and the counter-claim filed by the original defendant is hereby\r\nallowed. The judgment and decree passed by the learned trial Court\r\ndismissing the suit and allowing the counter-claim is hereby restored.\r\nThere shall be no order as to costs.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '79aa12630a11f8ca07fbd91a0fa20dba.jpeg', '08952583a27e66e9c6b29100f6e498ba.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-27', 1, '', '', '2022-09-26 01:23:02', '2022-09-27 12:54:24'),
(2231, '3A3LpsKm7efkmgYOJZNs8HRts', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'No appeal lies to the Commercial Appellate Division of the High Court from an order of the Commercial Division (Single Bench) of the same High Court for addition of a party in an admiralty suit governed by the Admiralty Act. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Owners and Parties interested in Vessel M.V. Polaris Galaxy Vs Banque Cantonale De Geneve.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6897-6898 of 2022 decided on 23 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Indira Banerjee and Justice A.S. Bopanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. These appeals are against a judgment and order dated 28th October\r\n2021 passed by the Commercial Appellate Division of the High Court of\r\nJudicature at Madras allowing Commercial Appeal being O.S.A (CAD) No.88\r\nof 2021 filed by the Respondent, and setting aside an order dated 24th\r\nSeptember 2021 passed by the Commercial Division (Single Bench) of the\r\nHigh Court, adding Gulf Petroleum FZC as defendant in the Admiralty Suit\r\nfiled by the Respondent, Banque Nationale De Geneve being CS\r\n(Commercial Division) No.96 of 2021.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The Appellant, M/s Galaxy Marine Services Limited is the registered\r\nowner of the Vessel, M. V. Polaris Galaxy, a sea-going oil tanker, flying the\r\nflag of Liberia, which is hereinafter referred to as, “the Vessel”.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. M/s Polaris Marine Services, acting as Commercial Managers of M/s\r\nGalaxy Marine Services, entered into a charterparty agreement with\r\nProfitable Wealth Inc., a company registered in the British Virgin Islands\r\nand operated by Wirana Shipping Corporation Private Limited, a wellknown maritime company based in Singapore, for charter of the vessel to\r\nProfitable Wealth Inc. Profitable Wealth Inc. in turn sub-chartered the\r\nvessel to Gulf Petroleum FZC for carriage of cargo of Marine Fuel Oil.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. On 6th May 2020, Gulf Petroleum FZC entered into a contract for\r\npurchase of 27-28,000 Metric Tons (MT) of Marine Fuel from Indian Oil\r\nCorporation Limited (IOC) which was to be loaded at the Kandla Port, for\r\ndischarge at Fujairah.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Gulf Petroleum FZC requested the Respondent, Banque Cantonale\r\nde Geneve, hereinafter referred to as the Respondent Bank, to finance\r\nthe purchase of the said 27-28,000 MT of Marine Fuel Oil from IOC. Gulf\r\nPetroleum FZC informed the Respondent that the Marine Fuel Oil had\r\nbeen sold to Aramaco for delivery at Fujairah, on open credit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. There is no doubt that in international trade, documents are of\r\nimmense value and that Courts must proceed on the basis of the\r\ndocuments as held by the Division Bench. It is, however, difficult to\r\naccept that the Court is not required to ascertain the nature of the\r\nunderlying transaction. The Division Bench rightly noted that when a\r\ncarrier notifies the party indicated as the ‘notify party’, what it implies is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that notice of the arrival of the vessel or notice of readiness to discharge\r\ncargo must be given to such party, whereupon such party would produce\r\nthe Bill of Lading and obtain the discharge of the cargo.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>31. The International Convention for the Unification of Certain Rules of\r\nLaw relating to Bills of Lading framed in 1924, and known as the Hague\r\nRules, govern the liability of carriers in respect of cargo, covered by bills of\r\nlading. The Hague Rules, which are mandatory, impose certain nonderogable obligations on the shipowner, but in return, confer an extensive\r\nlist of immunities, a defence of limitation of liability and a short time limit\r\nfor the bringing of claims. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>49. On a reading of averments made in the plaint and, in particular,\r\nparagraphs 10 to 12 to which reference has been made in the impugned\r\njudgment and order, it cannot be said that Gulf Petrochem, the owner of\r\nthe cargo financed by the Respondent Bank, and the notify party who had\r\nadmittedly been communicating with the Respondent Bank as also the\r\ncarrier and others, was a complete stranger to the proceedings.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>50. The consignee named in the Bill of Lading, need not necessarily be\r\nthe owner of the cargo. Whether the Respondent Bank had anything to\r\ndo with any instruction that Gulf Petrochem might have given is to be\r\ndecided in the suit. It is perhaps preposterous to equate the instructions\r\nthat might be given by Gulf Petrochem, to instructions that might be given\r\nby the fictitious Maharaja of Gaipajama<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>52. In our view, the Division Bench erred in holding that Gulf Petrochem\r\nwas neither a necessary nor a proper party to the admiralty suit. Gulf\r\nPetrochem was a proper party, whose presence, as observed above, was\r\nnecessary for effective adjudication of the issue in the suit.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>53. An important question of law involved in these appeals is, whether\r\nan appeal lies to the Commercial Appellate Division of the High Court\r\nfrom an order of the Commercial Division (Single Bench) of the same High\r\nCourt for addition of a party, in an Admiralty Suit governed by the\r\nAdmiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017,\r\nhereinafter referred to as “the Admiralty Act”. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>54. If it is held that, an order in an Admiralty Suit, for addition of party,\r\npassed by the Commercial Division of the High Court, is appealable to the\r\nCommercial Appellate Division, the question which would follow is,\r\nwhether the Commercial Appellate Division of the High Court (Division\r\nBench) should have allowed the appeal and set aside the order of the\r\nCommercial Division (Single Bench) adding Gulf Petroleum FZC as\r\ndefendant in the suit?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>69. The rule that a non-obstante clause in a later statute prevails over\r\nthe non-obstante clause in an earlier statute is not an absolute rule. The\r\nquestion of which provision prevails, would necessarily depend on the\r\nobject of the enactment and, in particular, the object of giving overriding\r\neffect to the enactment or any specific provision thereof.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>70. When two or more enactments operating in the same field contain a\r\nnon obstante clause stating that its provisions will have effect\r\nnotwithstanding anything inconsistent therewith contained in any other\r\nlaw, the conflict has to be resolved upon consideration of the purpose and\r\npolicy underlying the enactments. Mr. Vishwanathan, learned Senior\r\nCounsel appearing for the Appellant, argued that Section 14 provides for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appeals from an interim order of a Single Judge of a High Court under the\r\nAdmiralty Act which means an interim order in relation to an action in rem.\r\nOnce the owner of the Vessel enters appearance and submits to the\r\njurisdiction and provides security for release of the Vessel, the Admiralty\r\nAction proceeds to trial as an action in personam as in any other suit. This\r\nview finds support from the judgment of this court in MV Elizabeth v.\r\nHarwan Investment and Trading Pvt. Ltd</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>87. We are unable to accept Mr. Barucha’s argument that Section 14\r\nread with Section 12 of the Admiralty Act, 2017 demonstrates legislative\r\nintent to permit appeals from any interim order passed by the Single\r\nJudge of a High Court exercising admiralty jurisdiction to a Division Bench\r\nof that High Court without any restriction or limitation. The judgments of\r\nthe High Courts referred to by Mr. Barucha rendered in the facts and\r\ncircumstances of those cases, in respect of orders under the Admiralty Act\r\nhas specifically been made appealable under Section 14 of the Admiralty\r\nAct. The mere dismissal of a special leave petition does not operate as a\r\nprecedent of the Supreme Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n88. It could not possibly have been the legislative intent of the\r\nAdmiralty Act to make all interim orders appealable. Such a wide\r\ninterpretation of the expression “interim order” would mean that any\r\nparty would be able to delay the trial and final disposal by filing appeals\r\neven from inconsequential orders calling for affidavits and the like. We,\r\ntherefore, hold that an appeal does not lie to the Commercial Appellate\r\nDivision of the High Court from an order of the Commercial Division\r\n(Single Bench) of the same High Court for addition of a party in an\r\nadmiralty suit governed by the Admiralty Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n89. Even otherwise, we are of the view that the Division Bench erred in\r\nlaw in allowing the appeal from the order of the Commercial Division\r\n(Single Judge) adding Gulf Petroleum as party defendant to the suit. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>90. For the reasons discussed above, the appeals are allowed. The\r\nimpugned judgment and order of the Division Bench is set aside. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1c6ec137664148d981a49f98d708ae0a.jpeg', '596ed5733dfa767af5aad1c059169315.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-28', 1, '', '', '2022-09-26 01:35:24', '2022-09-28 07:38:01'),
(2225, 'C0vJ907LHq86M7A6dvxAkwG4v', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A future event does not constitute cause of action to file civil suit. A suit can only be entertained when the cause of action has arisen and not otherwise. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Hindustan Petroleum Corporation Ltd Vs Ajay Bhatia.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6859 of 2022 decided on 22 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Indira Banerjee and Justice A.S. Bopanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The Appellant is a Government Company within the meaning of\r\nSection 2(45) of the Companies Act, 2013 and carries on business, inter\r\nalia, of refining, distributing and marketing petroleum products all over\r\nIndia.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The Appellant operated two separate retail outlets/petrol pumps\r\nnamely M/s Azadpur Service Station and M/s Tej Service Station, through\r\ntwo different dealers, at two different sites at Azadpur in Delhi. M/s\r\nAzadpur Service Station was located on a plot of land admeasuring\r\n9700 sq. ft. at 4/4 Azadpur, G.T. Road, Delhi, hereinafter referred to as\r\n“Plot No. 4/4” and M/s Tej Service Station on two plots of land\r\nadmeasuring 15336 sq. ft. located at 4/5, Azadpur, G.T. Road, Delhi\r\nhereinafter referred to as “Plot No.4/5”.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. By an indenture of lease dated 15th October 1970, Shadi Lal\r\nBhatia, since deceased, son of Late Chaman Lal Bhatia, resident of 39,\r\nSecurity Police Flats, near Ashoka Hotel, New Delhi, leased out land\r\nsituated at Mile 4/4, G.T. Karnal Road, Azadpur, Delhi more specifically\r\ndescribed in the Schedule to the said indenture of lease, that is, Plot\r\nNo.4/4 to M/s CALTEX (India) Ltd., hereinafter referred to as “CALTEX”,\r\nfor a period of ten years, to operate the retail outlet/petrol pump\r\nAzadpur Service Station. CALTEX has since merged with the Appellant,\r\nHindustan Petroleum Corporation Limited. After the death of Shadi Lal\r\nBhatia, Plot No. 4/4 was inherited by Mrs. Rajeshwari Devi, widow of the\r\nsaid Shadi Lal Bhatia. Mrs. Rajeshwari Devi extended the said lease for\r\na period of ten years.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Plot No. 4/4 later devolved on the Respondent No, Shri Ajay\r\nBhatia, son of Shri Anil Bhatia, who is the owner thereof. On or about\r\n18th January 2001, the Respondent applied for mutation of Plot No. 4/4\r\nbeing the site of the retail outlet/petrol pump known as M/s Azadpur\r\nService Station.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>14. From the averments in the plaint, it is patently clear that there\r\nwere two plots of land, Plot No. 4/4 being the suit property which was\r\ninherited by the Respondent from his grandmother Smt. Rajeshwari\r\nBhatia and Plot No. 4/5, an adjacent Plot, which fell in the share of other\r\nlegal representatives of Smt. Rajeshwari Bhatia, namely, Shri Anil\r\nBhatia, Smt. Renu Bhatia and Smt. Anuradha Kapoor. It is alleged that\r\nthe said adjacent plot of land is also in the unauthorised occupation of\r\nthe Appellant.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">15. The existence of a cause of action and/or, in other words, the\r\nexistence of circumstances giving cause for initiation of action is\r\nimperative for initiation of a suit. A suit can only be entertained when\r\nthe cause of action has arisen and not otherwise. Any future event does\r\nnot constitute cause of action. The cause of action is the fact or bundle\r\nof facts which would be necessary for the plaintiff to plead and prove, in\r\norder to get a judgment of the Court in his favour. </span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. In a nutshell, the cause of action is the expiry of the lease of the\r\nsuit property, that is Plot No.4/4 and refusal of the Appellant to vacate\r\nthe suit property in spite of request, and the consequential liability of\r\nthe Appellant to the Respondent, to pay damages for wrongful\r\noccupation and/or mesne profits for wrongful occupation.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>44. With the greatest of respect, there is no finding by any Court that\r\n4/4 or 4/5 are only landmarks. Rather, there is a plethora of documents\r\non record to show that two separate petrol pumps/retail outlets were\r\nbeing run on two contiguous plots, one of which was initially run by\r\nCALTEX, which later merged into the Appellant and the other by ESSO,\r\nwhich later merged into the Appellant. There was no connection\r\nbetween CALTEX and ESSO. It is also admitted that one of the plots\r\nhave gone to the share of some other descendants of the original\r\nowner, Shadi Lal Bhatia.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>48. The question is whether the Respondent can take possession of\r\nany part of Plot No. 4/5 or any other plot in execution of the decree in\r\nsuit being C.S.(O.S.) No.1828 of 2006 which is only in respect of Plot No.\r\n4/4. The answer to the aforesaid question is obviously in the negative.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>49. Order 7 Rule 3 of the Code of Civil Procedure mandates that where\r\nthe subject matter of the suit is immovable property, the plaint shall\r\ncontain a description of the property sufficient to identify it, and in case\r\nsuch property can be identified by boundaries or numbers in a record of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">settlement or survey, the plaint shall specify such boundaries or\r\nnumbers.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n50. In Pratibha Singh (supra), this Court held that when a suit for\r\nimmovable property had been decreed but the property not definitely\r\nidentified, the defect in the Court record caused by overlooking of\r\nprovisions contained in Order 7 Rule 3 and Order 20 Rule 3 could be\r\ncured. The Court which passed the decree could supply the omission.\r\nAlternatively, exact description of the decretal property might be\r\nascertained by the Executing Court, as a question relating to execution,\r\ndischarge or satisfaction of decree within the meaning of Section 47.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">51. There could be no doubt that a decree should not to the extent\r\npracticable be allowed to be defeated. At the same time, a decree can\r\nonly be executed in respect of the suit property if the suit property is\r\neasily identifiable. The extent of the suit property would have to be\r\ndetermined by the Executing Court, as a question relating to execution,\r\ndischarge or satisfaction of the decree.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>54. The contention of the Intervener that M/s Tej Service Station is\r\nlocated over two adjacent plots, Plot No.4/5 admeasuring 112x60 sq. ft.\r\nbeing part of Khasra No. 403/90 leased by Smt. Rajeshwari Bhatia and\r\nanother plot admeasuring 142x60 sq. ft. being part of Khasra No. 66 of\r\nVillage Azadpur belonging to the Delhi Government requires\r\nconsideration.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n55. This Court cannot shut its eyes to the fact that part of the land\r\nbelongs to the Delhi Government for which Appellant is paying Revenue\r\nto the Delhi Government. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>56. The Appeal relating to the SLP (C) No.20718 of 2021 and the\r\nAppeal relating to SLP (C) No.20737 of 2021 are allowed. The impugned\r\njudgment and order is set aside. The Executing Court shall decide the\r\nExecution Applications and all related applications afresh, in the light of\r\nthe observations made above by appointing a Revenue Officer as Local\r\nCommissioner to demarcate Plot No. 4/4 and make over possession of\r\nthe said plot to the Respondent. Any excess land of which possession\r\nmay have been taken, whether of Plot No.4/5 or any land belonging to\r\nthe Delhi Government shall be restored to the Appellant. The mesne\r\nprofits as directed by the Trial Court shall be computed in terms of the\r\ndecree of the Trial Court, as modified by the High Court, i.e., with effect\r\nfrom 1st March 2006 till relinquishment by the Appellant of possession of\r\nthe suit property.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9c57bfca45f2ecd1b942dfe3645806c0.jpg', 'f4eae483d608e59bdd83ae542d0839ee.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-24', 1, '', '', '2022-09-23 16:56:49', '2022-09-24 12:55:59');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2226, '7n6ebRAaQlIEU703PCglIwMFB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'There is no need of attornment by the lessee for the transfer of the property leased out to him. Transfer of property itself creates jural relationship of landlord and tenancy. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gopi Goverdhannath by LRs and others Vs Sri Ballabh Vyas.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6827 of 2022 decided on 22 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Indira Banerjee and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. In this appeal by Special Leave the appellants\r\nassail the judgment and order dated 10.07.2018 in Civil\r\nRevision Petition No. 2752 of 2018 of the High Court\r\nof Judicature at Hyderabad for the State of Telangana\r\nand the State of Andhra Pradesh. It arises out of R.C.\r\nNo. 262 of 2008 brought by the respondent herein under\r\nSection 10(2)(i), 10(2)(vi) and 10(3)(a) of the Andhra\r\nPradesh Buildings (Lease, Rent and Eviction) Control\r\nAct, 1960 (for short “the Act”), for the eviction of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appellant Nos. 2 & 3 herein and the other respondents\r\ntherein, who are all the successors-in-interest of the\r\noriginal tenant Shri Balraj, being his wife and\r\nchildren, from the petition schedule property. The\r\npetition schedule property is a Mulgi (small shop),\r\nadmeasuring 29 square yards, abutting main road of\r\nMangalhat, Hyderabad. They were sought to be evicted\r\non three-fold grounds viz., non-payment/default in\r\npayment of rent, [(S.10(2)(i)], tenant’s denial of the\r\ntitle of the landlord not being bonafide [(S.10(2)(vi)]\r\nand landlord’s right to be put in the possession of\r\nproperty for his own business use</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. As per the order in R.C. No.262 of 2008 dated\r\n07.11.2015, it was allowed and the respondents therein\r\nwere directed to vacate the petition schedule property\r\nand to handover its vacant physical possession to the\r\npetitioner therein (the respondent herein) within 3\r\nmonths from the date of the order. The unsuccessful\r\nrespondents therein took up the matter before the\r\nAppellate Authority, viz., Court of Chief Judge, City\r\nSmall Causes Court at Hyderabad, as Rent Appeal No.57\r\nof 2016. The Appellate Authority considered the grounds <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of attack and found them meritless and consequently,\r\ndismissed the appeal. It is aggrieved by the same that\r\nthe stated Civil Revision Petition was filed before the\r\nHigh Court, which ultimately culminated in the impugned\r\njudgment.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. We have already referred to the pleadings of the\r\nparties taken up before the Rent Controller. When the\r\npetitioner (the respondent herein), as landlord,\r\nclaimed eviction on the ground of tenants’ denial of\r\nhis title over the petition schedule property and to\r\nestablish such denial as not being bonafide produced\r\nits registered sale deed, whether the appellants and\r\ntheir predecessors—in-interest could justify the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">denial merely by asserting that Shri Balraj, their\r\npredecessor-in-interest, had purchased it for a valid\r\nconsideration of Rs.15,000/- in the year 1985, without\r\nproducing any supporting material(s) admissible in\r\nevidence? Certainly, the answer can only be in the\r\nnegative. This is because in respect of the sale of\r\nan immovable property, worth value which makes the sale\r\ndeed compulsorily registrable, the genuineness of the\r\ndenial of title cannot be decided based on presumptions\r\nand oral assertations ignoring a valid registered\r\ndocument. In the aforesaid context, it is only\r\nworthwhile to refer to the decision of the Bombay High\r\nCourt in Mohanlal Sohanlal v. Pannalal Jankidas2 and\r\nalso Sections 9 and 54 of the Transfer of Property Act,\r\n1882 (hereinafter for short, ‘the TP Act’) and Section\r\n17 of the Indian Registration Act, 1908.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. In this case the oral evidence adduced by the\r\nrespondent is to the effect that his father had\r\npurchased the petition schedule property from Smt.\r\nPhool Kumari under Ext. P3, registered sale deed dated\r\n27.06.1985, in his name when he was aged 10 years. Per\r\ncontra, on behalf of the appellants what is pleaded and\r\nargued is that the petition schedule property was\r\npurchased by their predecessors-in-interest, Shri <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Balraj from the very same vendor viz., Smt. Phool\r\nKumari in the year 1985, for a valid consideration of\r\nRs. 15,000/-. It is in this context that Ext. P3 would\r\nact as a sure and clear pointer to where the truth\r\nlies.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. It is to be noted that the Rent Controller observed\r\nthat no evidence to establish the factum of dismantling\r\nof the petition schedule property was produced and\r\nproved before it. That apart, the Appellate Authority\r\nobserved that no document revealing obtainment of\r\nnecessary permission for demolition and construction\r\nof the petition schedule property was brought on\r\nevidence on behalf of the appellants. Obviously, the\r\nappellants took up a contention that the petition\r\nschedule property being a very small shop does not\r\nrequire any such permission. At the same time, the\r\nfact is that they had not brought out any provision\r\nunder any law in support of the said contention.\r\nExplanation 1 to Section 32 (b) of the Act would reveal\r\nthat in order to hold that a building was substantially\r\nrenovated not less than 75 per cent of the premises was\r\nto be built new in accordance with the criteria\r\nprescribed for determining the extent of renovation.\r\nNo evidence to establish such requirement is available <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">on record. According to us, the hollowness of the said\r\ncontention would be revealed if a reference is made to\r\nthe definition of the term “building” given under\r\nSection 2 of the Act, which is an inclusive definition.\r\nGoing by its definition it takes in its fold any house\r\nor hut or part of a house or hut. For the purposes of\r\nthe Act when a hut or even part of a hut falls within\r\nthe definition of building, in the absence of any\r\nprovision under any law supporting the said contention\r\nof the appellants that the petition schedule property\r\nbeing a small shop will not attract the provisions of\r\nthe Act, is only to be rejected. In fact, it was\r\nrightly rejected by the Courts below</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. In the light of the finding on the issue whether\r\nthe respondents in R.C. No.262 of 2008 were malafidely\r\ndenying the title of the petitioner therein over the\r\npetition schedule property, Section 109 of the Transfer\r\nof Property Act would assume relevance in regard to the\r\nright of the petitioner in R.C. No.262 of 2008 to seek\r\neviction of the respondents therein, from the petition\r\nschedule property. Admittedly, the predecessor-ininterest of the appellants viz., late Shri Balraj, was\r\nthe tenant in respect of the petition schedule property\r\nunder its original owner Smt. Phool Kumari. A bare\r\nperusal of Section 109 of the Transfer of Property Act\r\nwould reveal that if a landlord transfers the property\r\nleased out or any part of it, the transferee, in the\r\nabsence of any contract to the contrary, shall possess\r\nall the rights of the landlord. Hence, the impact of\r\nExt.P3, in the absence of any contract to the contrary,\r\nis that the respondent herein has stepped into the\r\nshoes of Smt. Phool Kumari. In terms of Section 109 of\r\nthe Transfer of Property Act it is clear that <span style=\"font-size: 12pt;\">attornment by the lessee is not necessary for the\r\ntransfer of the property leased out to him. Thus, the\r\ninevitable consequence of transfer of a leased-out\r\nproperty by the landlord in accordance with law to a\r\nthird party, in the absence of a contract to the\r\ncontrary, is that the third party concerned would not\r\nonly become its owner having title but also would step\r\ninto the shoes of the vendor as the landlord in relation\r\nto the lease holder at the relevant point of time. In\r\nsuch circumstances, the findings of the courts below\r\nthat there exists jural relationship of landlord and\r\ntenant between the respondent and the appellants can\r\nonly be held as the correct and lawful conclusion in\r\nthe light of the evidence on record based on the legal\r\nposition.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. Now, we will move on to consider the next question\r\nas to whether the direction for eviction of the\r\nappellants from the petition schedule property calls\r\nfor interference on the ground of perversity in\r\nfinding. The Rent Controller, the Appellate Authority\r\nand the High Court considered the question whether the\r\nrequirement of the respondent to get vacant possession <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the petition schedule property is bonafide and\r\nacceptable as a ground for eviction. The pleadings and\r\nthe evidence of the respondent herein as PW-1 is to the\r\neffect that he is unemployed and requires the petition\r\nschedule property for establishing his own business to\r\neke out his livelihood. Though, the respondent herein\r\nwas cross-examined nothing could be elicited to\r\nestablish that his requirement for personal occupation\r\nfor the aforesaid purpose is not genuine and that it\r\nis only a ruse for evicting the appellants. So also,\r\nnothing could be elicited to establish that the\r\nrespondent possesses other vacant premises of his own\r\nto establish his business. RW1, who was the original\r\nfirst petitioner in the SLP from which this appeal\r\narises, while being examined-in-chief in R.C. No. 262\r\nof 2008 would say that he did not file any document to\r\nshow that the petitioner therein viz., the respondent\r\nherein got other non-residential building(s) or mulgies\r\nin Feelkhana. Nothing was brought to our attention\r\nthat would establish non-consideration of any material\r\nor consideration of irrelevant material, to arrive at\r\nthe finding that the requirement to get vacant </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">possession of the petition schedule property of the\r\nrespondent is malafide. In short, on a careful\r\nscanning of the concurrent findings on all issues, as\r\nabove, we find no reason to hold that such findings are\r\ninfected with perversity or manifest injustice. In the\r\nsaid case, this appeal must fail. Accordingly, it is\r\ndismissed. No order as to costs.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30. The appeal stands dismissed subject to the above.\r\nAll pending applications are disposed of.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5b24f804f4c88d512d6ffca9224c27ef.jpg', '86f6a58ad1bfa9511b562314abbb9a1f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-26', 1, '', '', '2022-09-23 17:27:18', '2022-09-26 16:56:56'),
(2227, 'f94YNi3RyXscwc9jxCxFbuiU6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Owner of the vehicle who bonafide believed the fake driving licence of the driver as a genuine one is not liable to restitute the compensation amount paid by the Insurance Company. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Aisha Khader Vs Xavier Lonappan and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>MACA 1524 of 2012 decided on 16 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sophy Thomas.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Is the owner of the offending vehicle, who bonafide believed\r\nthe driving licence of the driver as a genuine one, liable to\r\nrestitute the compensation amount paid by the Insurance\r\nCompany, is the question mooted in this appeal.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. As per the impugned award, the learned Tribunal\r\nawarded compensation of Rs.5,66,061/- to the injured, and\r\ndirected the Insurance Company to deposit the amount with\r\ninterest. As the driving licence of the 2nd respondent was found\r\nfake, the Insurance Company was permitted to recover the\r\ncompensation amount deposited by them from respondents 1 and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2 i.e. the owner and driver of the offending vehicle. That order is\r\nchallenged by the 1st respondent/owner in this appeal.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. As per Section 15 (6) of the Motor Vehciles Act, 1988,\r\nwhere the authority renewing the driving licence is not the\r\nauthority which issued the driving licence, it shall intimate the fact\r\nof renewal to the authority which issued the driving licence. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Learned counsel Sri.P.Deepak appearing for the appellant\r\ncontended that, if Section 15(6) was duly complied with by the\r\nrenewing authority, the fake licence in the name of the 2nd\r\nrespondent could have been brought to light. So, according to\r\nhim, the appellant may not be found fault with, for not enquiring\r\ninto the genuineness of the licence, allegedly issued from the\r\nChennai RTO office, which was subsequently renewed from RTO\r\nOffice, Perumbavoor. According to him, there was no scope for any\r\nenquiry, as the driving licence produced before the appellant, was\r\none renewed from a local authority.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. In the case on hand, even the insurer does not have a\r\ncase that the owner was aware of the fact that the driving licence\r\nof the 2nd respondent was a fake one. From the available\r\nevidence, there is every reason to think that the owner believed\r\nthe renewed licence of the 2nd respondent as a genuine one, as it\r\nwas from a local RTO. She was not expected to enquire into the\r\ngenuineness of that document from the original place of its\r\nissuance. So, this Court is inclined to accept the submission of\r\nthe appellant that she bonafide believed the renewed licence of\r\nthe 2nd respondent as a genuine one and there would be no\r\nbreach of Section 150(2)(a)(ii) of the amended Act 32 of 2019. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">So, the Insurance Company cannot be absolved of its liability\r\ntowards an innocent third party, as the offending vehicle was duly\r\ninsured with them.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. Since the appellant/owner was not aware of the fact\r\nthat the 2nd respondent was having a fake driving licence, she\r\ncannot be mulcted with the liability to restitute the Insurance\r\nCompany. According to her, the accident itself was caused due to\r\nthe rash and negligent driving of the offending vehicle by the 2nd\r\nrespondent, and he is the person primarily responsible to\r\ncompensate the victim.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. Learned counsel for the insurer submitted that, there is\r\nno privity of contract between the insurer and the driver and so,\r\nthey cannot recover the amount from the driver. In Oriental\r\nInsurance Company Ltd. vs. Sivan (2014 (1) KLT 1), a Division\r\nBench of this Court held that, when the driver of a vehicle\r\ncommits a fraudulent and criminal act by driving the vehicle with\r\na forged licence without the knowledge of the owner, such driver\r\ncannot escape the liability towards the Insurance Company on\r\naccount of breach of contract. The driver is not a stranger to the\r\ncontract of insurance between the Insurance Company and the\r\nowner of the vehicle and there is a quasi contract between the driver and the insurer. The person liable in the first instance is\r\nthe driver himself. The owner becomes liable for the negligence\r\non the part of the driver by applying the principles of vicarious\r\nliability in an action for tort. The Insurance Company becomes\r\nliable to indemnify the owner of the vehicle because of the\r\ncontract of insurance entered into between the owner of the\r\nvehicle and the Insurance Company. In fact, ultimately what the\r\nInsurance Company takes upon themselves by virtue of the\r\ncontract of insurance is the primary liability of the driver for\r\npaying compensation for his negligent act to the party, who\r\nsuffered because of his negligence. Therefore, it cannot be said\r\nthat the driver is not a stranger to the contract of insurance\r\nbetween the Insurance Company and the owner of the vehicle.\r\nSo, the contention put forward by the learned counsel for the\r\ninsurer that they cannot recover the amount from the driver, as\r\nthere was no contract between the insurer with the driver is not\r\nacceptable. Since the owner was not aware of the fact that the\r\ndriving licence produced by the driver was a fake one, she is not\r\nliable to compensate the victim and so, the insurer cannot\r\nproceed against the owner. But, since the accident occurred due\r\nto the negligence of the driver and he was aware of the fact that his driving licence was a fake one, he is the person liable to\r\ncompensate the victim. Since the offending vehicle was duly\r\ninsured with the 3rd respondent/insurer, as far as an innocent third\r\nparty is concerned, primarily, the insurer has to compensate him\r\nand they can recover the sum from the driver, as there is quasi\r\ncontract between the driver and the insurer</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In the result, the appeal is allowed setting aside the\r\nimpugned award to the extent it permitted recovery of the\r\ncompensation amount from the appellant/1st respondent-owner.\r\nNo order as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2245233b383a2095eb5503a0c117dd48.jpg', '76232423349c6aee3fa3c24e804b82bf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-26', 1, '', '', '2022-09-23 17:50:27', '2022-09-26 12:54:57'),
(2232, 'L8DRHctXGGjodcrVVIsld0whg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Renewable energy. Licensing authority must take appropriate measures at the time of granting license to see that huge projects are not imperilled by avoidable litigations. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>SRK Energy Private Limited Vs The State of Karnataka and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 9174 of 2022 decided on 21 September 2022<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In W.P.No.18941/2021 & W.P.No.9174/2022,\r\npetitioner companies carrying on business in Wind\r\nEnergy Projects, are knocking at the doors of Writ Court\r\nseeking invalidation of the Government Order dated\r\n04.09.2021 whereby the Wind Energy Project allotted to\r\none M/S SML Electricals India Private Limited has been\r\ntransferred to the 6th Respondent (hereafter ‘Ayana\r\nLimited’) and further, the then obtaining Project\r\nCapacity of 10 MW has been enhanced to 300 MW. This\r\nproject, according to them, comprises of land ad\r\nmeasuring 44 acres out of the earmarked vast area of\r\n6500 acres in all. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. In the companion case i.e., in W.P.\r\nNo.17244/2022 filed by one of these petitioners namely\r\nM/s. SJP Builders & Developers Pvt. Ltd., a Writ of\r\nMandamus is sought for to the respondent-authorities to\r\nissue Facilitation Letter in furtherance of Allotment\r\napproved by the Allotment Committee vide Order dated\r\n23.01.2019 for 5 MW Wind Power Project.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. After service of notice, the State has entered\r\nappearance through the learned HCGP; the respondent –\r\nKarnataka Renewable Energy Development Ltd.,\r\n(hereafter ‘KREDL’) & its officials are represented by their\r\nlearned Panel Counsel. The 6th respondent – Ayana\r\nLimited is represented by a private advocate. The KREDL\r\nand Ayana Limited have filed their Statements of\r\nObjections opposing the writ petitions. Learned HCGP,\r\nlearned Panel Counsel & the learned private advocate\r\nmake submission in justification of the impugned order\r\nand the reasons on which it is structured, and seek\r\ndismissal of all the writ petitions. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Having heard the learned counsel for the\r\nparties and having perused the Petition Papers, this\r\nCourt is inclined to grant a limited indulgence in the\r\nmatter as under and for the following reasons:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">(a) The fulcrum of petitioners’ case is that the land\r\narea in respect of which they have staked their claim is\r\nsubsumed in the project area allotted to the 6th\r\nrespondent – Ayana Limited and therefore, the impugned\r\norder is liable to be voided. Learned counsel for the\r\npetitioners takes the Court through the pages of petition\r\nbooks to substantiate the same. However, both the\r\nlearned HCGP appearing for the State & the Panel\r\nCounsel appearing for the KREDL repel this contention\r\ncontending that the entire area earmarked for the Wind\r\nEnergy Project is as vast as 6500 acres and what has\r\nbeen allocated to the 6th respondent is an area of mere\r\n544 acres and therefore, petitioners’ claim is in no way\r\nprejudiced by the impugned order, even if they are in\r\nfuture to seek enhancement of the area or the MW  </span><span style=\"font-size: 12pt;\">capacity and therefore, they are not justified in\r\ncomplaining against the allocation made in favour of 6th\r\nrespondent-Ayana Limited. A perusal of the records\r\nlends abundant support to the case of respondents\r\ninasmuch as, the claim of both the petitioners put\r\ntogether works out to a small extent of 66 acres only i.e.,\r\n16 acres claimed by the petitioner in\r\nW.P.No.18941/2021 and 50 acres claimed by the\r\npetitioner in W.P. No.9174/2022. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(b) There is force in the contention of contesting\r\nrespondents that the petitioners whose claims have not\r\nyet become concrete & choate, cannot seek to stick on to\r\na particular piece of earth, especially when as assured by\r\nKREDL, they can be accommodated in any other piece of\r\nland comprised in the vast area of 6,500 acres, if at all it\r\nbecomes necessary. What one cannot lose sight of is: the\r\nGovernment & its authorities have been exploring the\r\ntapping potential of non-conventional/renewable energy\r\nresources like wind power, more particularly by engaging <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">private agencies who are in a position to avail the latest\r\nscience & technology, to fructify the same. It needs no\r\nresearch to show that our society is starving of electrical\r\npower which is the lifeblood of any business & industry,\r\nand which also generate abundant employment\r\nopportunities. Invalidation of the impugned order on the\r\npleaded grounds that are not much substantiated would\r\ndampen the spirit of large – scale investors and their\r\nentrepreneurship</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(d) A cogent reason emanates from the above as\r\nto why the 10 MW capacity has been enhanced to 300\r\nMW and such decisions partaking the character of policy\r\ncontent do not merit a deeper examination at the hands\r\nof Writ Court. After all, as a concomitant of doctrine of\r\nseparation of powers which is held to be a basic feature\r\nof the Constitution <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">vide INDIRA NEHRU GANDHI vs. RAJ\r\nNARAIN2\r\n, the judicial organs have to show due deference </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to the decisions of the co-ordinate organs of governance.\r\nAdded, Courts cannot claim to have expertise in technical\r\nmatters like this and therefore, undertake evaluation of a\r\nhost of factors that enter the fray of decision making. An\r\nargument to the contrary would put this Court in a race\r\nof opinions with the Executive.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(h) The observations hereinabove made are to be\r\nread in light of renewable energy infrastructure at\r\npresent and the daunting climate change & energy crises\r\nfaced by the world. Renewable energy currently has a\r\nshare of 26.53% in the total installed generation capacity\r\nin the country, the installed capacity having been <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">increased 286% in the last 7.5 years5\r\n. At present,\r\ndevelopment & transition to renewable modes of energy\r\nare categorically imperative and thus, all efforts must be\r\nmade to aid the process of this transition, especially in\r\nlight of crippling climate crises being faced nationally and\r\ninternationally . The role of justice, reason & fair play in\r\nsuch situations morph into ‘environmental rule of law’ of\r\nwhich development and sustainability are foundational\r\npillars.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">(i) All the above having been said, this Court is\r\nbroadly in agreement with the submission of learned\r\ncounsel for the petitioner in W.P. No. 17244/2022 that a\r\ndirection needs to be given to the government for issuing\r\nFacilitation Letter in furtherance of Allotment Committee\r\nOrder dated 23.01.2019, subject to petitioner complying\r\nwith all requisites including the payment of fees if any,\r\nprescribed therefor. This has to happen in accordance\r\nwith law and in a time bound manner. Otherwise,\r\nwhatever benefit the said petitioner is entitled to derive\r\nfrom the order in question, may be lost by sheer lapse of\r\ntime and consequent change of circumstances, and that\r\nagain would imperil the public interest. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the above circumstances, Writ Petition Nos.\r\n18941/2021 & 9174/2022 are disposed off with the\r\nobservations hereinabove made. W.P. No. 17244/2022 is\r\nfavoured and a writ of Mandamus issues to Respondent\r\nNos. 1 & 2 to consider petitioner’s claim for grant of\r\nFacilitation Letter within an outer limit of three months,\r\nsubject to all usual terms & conditions.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Costs made easy. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f5e1350ef8bd758631f35d2502ef2d40.JPG', 'a1e7a22c249292c5f0cb0862e9efb8fc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-27', 1, '', '', '2022-09-26 17:38:56', '2022-09-27 06:55:17'),
(2236, '8FSysCrnASfkaFoikx4UOigJG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Election petition cannot be dismissed for making the Returning Officer also a party to the petition. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Devandrappa Vs Huligemma and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 200133 of 2022 decided on 15 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.T. Narendra Prasad.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The brief facts of the case are that the\r\npetitioner and respondent No.1 herein have contested\r\nfor Grama Panchayat election from Nagarhal-3\r\nConstituency which comes under Nagarhal Grama\r\nPanchayat, Lingasugur Taluk, Raichur District.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 3. The further case of the petitioner is that in the\r\nelection the petitioner has been declared as a winning\r\ncandidate for Nagarhala-3 Constituency. The\r\nrespondent No.1 was defeated in the election. Hence,\r\nhe has filed Election Petition under Section 15 of the\r\n1993 Act before the Court of Senior Civil Judge and\r\nJMFC, Lingasugur on the ground that counting of votes\r\nwere not held properly and there was dereliction of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">duty on the part of respondent No.2 – returning officer\r\nand sought for recounting of the votes.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n4. After service of notice, the petitioner herein\r\nappeared through the counsel and has filed objection\r\nto the main petition and filed IA No.6 under Order 7\r\nRule 11 r/w. Section 151 of CPC and Section 17(1) of\r\nthe 1993 Act for dismissal of the Election Petition on\r\nthe ground that the Election Petition is not presented\r\nby the first respondent himself and second ground\r\nthey have raised is mis-joinder of parties. Pursuant to\r\nthe application, respondent No.1 herein has filed\r\nobjections. After considering the contention of both\r\nthe parties, by impugned order dated 03.01.2022,\r\nvide Annexure-E, the application filed by the petitioner\r\nhas been dismissed. Being aggrieved, petitioner is\r\nbefore this Court.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">12. It is not in dispute that the petitioner and\r\nrespondent No.1 herein have contested for Grama\r\nPandhayat election from Nagarhale-3 Constituency\r\nwhich is coming under the Nagarhale Grama </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Panchayat. The returning officer has declared the\r\npetitioner as winning candidate from the said\r\nConstituency. The respondent No.1, who is\r\nunsuccessful in the election filed Election Petition\r\nbefore the designated court under Section 15 of the\r\n1993 Act on 27.01.2021. The Election petition has\r\nbeen produced as Annexure-A.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">15. In the case on hand, as can be seen from\r\nthe Election Petition produced at Annexure-A, as per\r\nthe notings of the officer Election petition has been\r\npresented by the advocate for respondent No.1 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">herein. The order sheet of 27.01.2021 speaks that\r\nrespondent No.1 herein was present before the Court.\r\nIn the impugned order there is no reference or finding\r\nof the Court that when the Election Petition has been\r\npresented, whether respondent No.1 was present or\r\nnot. In view of the above, the matter requires to be\r\nremitted back to the Senior Civil Judge and JMFC,\r\nLingasugur for reconsideration of the matter as to\r\nwhether the respondent No.1 herein was present\r\nwhen the Election Petition was presented by the\r\nadvocate for respondent No.1?</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. This Court in the case of\r\nB.S.YEDIYURAPPA (supra) has dismissed the\r\nElection Petition for mis-joinder of parties, i.e., the\r\nreturning officer. The Hon\'ble Apex Court in Civil\r\nappeal has held that if the returning officer is not a\r\nnecessary party, the Court can delete but it cannot be\r\ndismissed on that ground.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">Therefore, it is clear that those who are mentioned in\r\nSection 15(2) of the said Act must be made parties to\r\nan election petition and if they are not made a party,\r\nthe election petition does not comply with the\r\nprovisions of Section 15 of the Act. The Election\r\nPetition has to be dismissed under Section 17(1) of\r\nthe 1993 Act. If other than the parties mentioned in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 15(2) were made as parties, the Election\r\nPetition cannot be dismissed on that ground. Such a\r\npetition can be amended by striking out the names\r\nfrom array of parties.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 18. In view of the above, the matter requires to\r\nbe remitted back to the trial Court to consider these\r\ntwo grounds which have been urged by the petitioner\r\nherein and pass a fresh order in accordance with law.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>19. Accordingly, writ petition is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '35f6d0154418c1e564b5b5989fadee47.JPG', 'd9e773a3702709bb4952fc463c320def.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-28', 1, '', '', '2022-09-27 16:19:33', '2022-09-28 12:55:20');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2234, 'VteQwRJj6U6UpIZFdP7X8ZzLd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Teachers working in private educational institutions. Salary includes leave encashment. Supreme Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jagdish Prasad Saini and others Vs State of Rajasthan and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 16813 of 2022 decided on 26 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice Uday Umesh Lalit and Justice S. Ravindra Bhat.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The appellants were appointed against sanctioned posts by the fourth\r\nrespondent (a senior secondary school, established and controlled by the fifth\r\nrespondent trust, hereafter referred to collectively as the “establishment”) in\r\n1993. They continued to work uninterruptedly in that establishment on a regular\r\nbasis. The establishment was recipient of grant-in-aid from the State of Rajasthan\r\n(hereafter, “State”). By a unilateral resolution dated 5\r\nth November 2008, the\r\nmanaging committee of the establishment decided to discontinue receipt of grantin-aid from the State with effect from 1st April 2008. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. In the meanwhile, the State had framed and brought into force the\r\nRajasthan Voluntary Rural Education Service Rules, 2010 (hereafter, “2010\r\nRules”) with the objective of providing security to the employees working in\r\naided institutions, and to absorb them in the State’sservice. The appellants sought\r\ntheir absorption with the State in accordance with the rules, by unavailingly\r\nrepresenting in this regard. Finally, they were driven to file writ petitions before\r\nthe High Court. The State had, pursuant to the rules framed by it, absorbed other\r\nemployees and teachers from aided institutions, but denied this benefit to the\r\nappellants.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. In the present case, the appellants had to fight for their entitlements. The\r\nState initially refused them the benefit of regularization. Their petitions for relief\r\nwere unsuccessful. Ultimately, this court, by its order, dated 19th July 2016,\r\ndirected their regularization. The court even initiated suo motu contempt\r\nproceedings, after which the appellants were paid their salaries and arrears\r\naccording to the recommendations of the Pay Commission. However, the\r\nappellants’ complaint of non-compliance with the respondent’s obligation to pay\r\nleave encashment and gratuity for the period they were in the aided establishment\r\nwas not gone into. They were permitted to agitate that grievance before the High\r\nCourt. Upon their doing so, the High Court, by its impugned order, gave short\r\nshrift to their argument, holding that since arrears of salary had been paid, nothing\r\nmore was needed to be done.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. This court is of the opinion that the aforementioned reasoning is binding,\r\nand conclusive as regards entitlement of the appellants to claim leave encashment\r\nbenefits. However, the State had urged that by virtue of Rule 5 of the 2010 Rules,\r\nthe employees who were regularized could not claim these benefits.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. This court had categorically ruled, in Senior Higher Secondary School\r\n(supra) that leave encashment is part of salary. In the scheme of the 1993 Rules,\r\nthe assessment of, and determination of the extent of, aid to be granted to any\r\ninstitution, is provided by Rule 13. What forms part of the approved expenditure\r\nthat would be the content of aid, is provided by Rule 14. In the present case, the\r\nmanagement establishment was recipient of 70% aid, in the form of grant. In these\r\ncircumstances, the State cannot shrug its responsibility to shoulder its part of the\r\nresponsibility to pay the appellants the share of leave encashment benefits, and\r\nhide behind either Rule 5 (viii) or the undertaking executed by them. The\r\nappellants are held entitled to privilege leave entitlement benefits. Such benefit\r\nshall be calculated from the date they entered the service of the establishment till\r\nthe date of their absorption, by the State, in 2016. The State shall pay the benefits\r\ndue to the extent of 70%, and the balance 30% shall be payable by the\r\nmanagement establishment.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. On the issue of gratuity, again, the question of liability has been\r\nconclusively settled. Although the management relied on a Chhattisgarh High\r\nCourt decision Ambika Mission Boys Model School (supra), this court is of the\r\nopinion that it cannot be construed as an authority, because the court in that case\r\nanalysed the provisions of the Payment of Gratuity Act, 1972, as amended in\r\n2009. However, in the present case, the scheme of the 1993 Rules, which\r\ncontained the conditions of grant, categorically cast the liability to pay gratuity\r\non the employer, i.e., the aided establishment, i.e., the fourth, fifth and sixth\r\nrespondents in this case.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Neither has Rule 82 changed, nor has any other material been brought to the\r\nnotice of the court, to say that the management, i.e., respondent nos. 3-7 are\r\nabsolved of their liability to pay gratuity, upon termination of their relationship\r\nwith the appellants as their employers. Rule 82 is a condition of grant, which\r\nmeant that the management establishment was conscious and aware of its liability\r\nwhen it applied and was granted aid, under the 1993 Rules. Therefore, it cannot\r\nescape its liability on that score.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. In view of the above discussion, it is held that with respect to leave\r\nencashment, the State and the respondent nos. 3 to 7 are liable to pay the\r\nappellants, in the ratio of 70:30 respectively. The respondent State shall, within <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">four weeks from today, determine the extent of entitlement of each appellant, and\r\ncommunicate the extent of amount payable by the management establishment\r\n(respondent nos. 3 to 7), to the appellants. These amounts shall be paid by all the\r\nrespondents, within six weeks from today. The respondent nos. 3 to 7 shall also\r\ncalculate and pay the amount of gratuity, to the appellants (on the basis of their\r\ninitial date of entry in the school, till the date of order of absorption, by the\r\nrespondent State), within six weeks from today. Since both sets of respondents\r\ncontested their liability and denied them to the appellants, the amounts payable\r\nto the appellants shall also carry interest, at the rate of 10% from the date(s) of\r\ntheir entitlement, till the date of payment.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>24. The impugned order is therefore set aside. The appeal is allowed in terms\r\nof the above directions. There shall be no order on costs.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '675dfec2a376554aeed7998170372761.jpg', '016fcef6fae9d58999e72e8fd8951f9e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-26', 1, '', '', '2022-09-26 19:01:22', '2022-09-29 09:27:35'),
(2235, 'SwZdZNFa1xGO9jEF5qbCBT3dI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Rejection of restoration application under the PTCL Act filed after 32 years. Remand of the proceedings on the ground of procedural irregularity cannot be ordered when fresh consideration is a futile exercise. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>A.K. Shivamurthy and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 1617 of 2020 decided on 13 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The land bearing Sy.No.139, (old No.79/3) measuring 5\r\nacres, situated at Daginakatte Village, Channagiri Taluk,\r\nDavanagere District, is alleged to have been granted in favour of\r\none Durgappa S/o Sigadi Ranganna who is the grand father of\r\nthe petitioners vide order dated 20.05.1950.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The original grantee sold the subject land in favour of\r\none Shivalingappa by executing the registered sale deed dated\r\n22.08.1957. He in turn sold the subject land in favour of\r\nDasharathappa by executing the registered sale deed dated\r\n12.04.1997 and respondent No.7 in turn purchased the subject\r\nproperty through the registered sale deed 4.7.2011.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Petitioners who are claiming to be the legal\r\nrepresentatives of the deceased grantee filed an application\r\nunder Section 5 of the Karnataka Scheduled Castes and\r\nScheduled Tribes (Prohibition of Transfer of Certain Lands) Act,\r\n1978 (for short \"PTCL Act\") before the Assistant Commissioner\r\nconcerned for resumption and restoration of the subject land\r\nalleging that the sale deed executed in favour of the respondent\r\nNo.7 was in contravention of Section 4(1) of the PTCL act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The Assistant Commissioner concerned rejected the\r\napplication on the ground that there is no material to\r\nsubstantiate the claim of the petitioners that the subject land\r\nwas a granted land as defined under Section 3 (1) (b) of the\r\nPTCL Act, against which the petitioners filed an appeal before the\r\nDeputy Commissioner concerned under Section 5(A) of the PTCL\r\nAct.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The Deputy Commissioner concerned dismissed the\r\nappeal reiterating the reasons assigned by the Assistant\r\nCommissioner concerned and also on the ground that the\r\napplication filed by the petitioners after an inordinate delay of\r\nmore than 32 years from the date of commencement of the PTCL\r\nAct, against which, the present petition is filed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. The first sale deed was executed on 22.08.1957.\r\nThe PTCL act came into effect on 01.01.1979. The application\r\nunder Section 5 of the PTCL Act was admittedly filed in the year\r\n2011 after an inordinate delay of more than 32 years from the\r\ndate of commencement of the PTCL Act and the Hon\'ble Apex\r\nCourt in the case of Nekkanti Rama Lakshmi -vs- State of\r\nKarnataka and another reported in ILR 2018 Kar. 1352 has held\r\nthat the grantees are not entitled for restoration of the land if an\r\napplication for restoration is not field within a reasonable time\r\nfrom the date of commencement of the PTCL Act. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. The Deputy Commissioner who has passed the\r\nimpugned order in the capacity of the Assistant Commissioner\r\nhad passed the order rejecting the application under Section 5 of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the PTCL Act, and he was under an obligation to transfer the\r\nappeal filed the petitioners to the competent officer instead of\r\npassing impugned order. However, that the petitioners are not\r\nentitled for restoration of the subject land as the application was\r\nfiled after an inordinate delay of more than 32 years, and it\r\nwould be an futile exercise, if the matter is remitted to the\r\nrespondent No.2 for reconsideration of the appeal afresh filed by\r\nthe petitioners.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13. In view of the above, I do not find any illegality or\r\ninfirmity in the impugned order passed by the respondent No.2.\r\nAccordingly, the petition stands dismissed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3091ac85266ec15411b74ea73d9763e9.jpeg', 'e1e7df2b290c2290c75f94d6feec57fb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-27', 1, '', '', '2022-09-26 19:22:05', '2022-09-27 12:08:18'),
(2237, 'zvipRa8JbuGYcclb7n1LuIlL1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Action taken pursuant to and upon an insufficiently stamped document cannot be termed as illegal, null and void and nonest in the eye of law in the absence of any specific provisions thereof. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Hiranappa and others Vs M/S Sriram Finance Co. Ltd.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>RFA 200058 of 2020 decided on 19 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.G.S. Kamal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Brief facts of the case leading up to filing of the\r\nappeal are as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>a) The aforesaid execution case in E.P.No.54/2015\r\nhas been filed by decree-holder seeking to execute the\r\naward dated 30.08.2013 passed in Arbitration Case\r\nNo.259/2013 for an amount of Rs.4,40,743/- together with\r\ninterest at 18% p.a. from 29.03.2013 to 29.05.2015 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">mounting to Rs.2,51,221/- with further interest at the\r\nrate of 18% p.a., till the date of payment against\r\nrespondents No.2 and 3/Judgment Debtors. That along\r\nwith the aforesaid Execution Petition, an application was\r\nfiled by the respondent No.1/Decree Holder under Order 21\r\nRule 13 read with Section 151 of CPC seeking attachment\r\nof immovable property bearing Survey No.72/1 measuring\r\n3 acres 10 guntas situated at Revanoor village, Jewargi.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\nb) The appellants/petitioners in their aforesaid\r\napplication contended that the appellant No.1/Petitioner\r\nNo.1 is the father of respondent No.2/Judgment Debtor\r\nNo.1. Appellant Nos.2 to 5/Petitioners No.2 to 5 are the\r\nsons and daughters of the respondent No.2/Judgment\r\nDebtor No.1. The appellant Nos.2 and 3/Petitioners No.2\r\nand 3 are minors and are under care and custody of their\r\ngrandfather, appellant No.1/Petitioner No.1. That their\r\nfather Siddaramappa - Judgment Debtor No.1, was not\r\ntaking care of the interest of appellant Nos.2 and\r\n3/Petitioners 2 and 3. As such, they were represented by </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appellant No.1/Petitioner No.1. Appellants/Petitioners and\r\nthe respondent No.2/Judgment Debtor No.1 constituted a\r\nHindu Undivided Family and there was no partition of the\r\njoint family property amongst them. That the aforesaid\r\nland in Survey No.72/1 measuring 3 acres 10 guntas is the\r\nancestral property. That on 16.02.2019, the\r\nappellants/petitioners learnt that a bailiff was to come to\r\ndeliver possession of the same to one Mahesh, son of\r\nSiddaramappa Patil of Jewargi, who claims to be a\r\npurchaser of the said land in the Court auction. That\r\nrespondent No.2/Judgment Debtor No.1 is not the\r\nexclusive owner of the said property and the\r\nappellants/petitioners have got 1/5th share each therein.\r\nThat the decree-holder had no right to auction the said\r\nland to recover the alleged dues. The auction conducted\r\nwas thus not binding on the appellants/petitioners. That\r\nthere were irregularities in conducting the auction. That\r\nthe appellants/petitioners are not the parties to the loan\r\ntransaction. They cannot be dispossessed of from the land.\r\nIt is also contended that since proper stamp duty on the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">above award has not been paid by the decree-holder, the\r\nsaid award could not be executed without collecting proper\r\nstamp duty thereon.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">c) Objections were filed to the said application by\r\nthe Respondent No.4/auction purchaser denying the\r\naverments made in the above application. It is contended\r\nthat as per records of rights for the year 2004-05, land in\r\nSurvey No.72/A was measuring 14 acres 27 guntas. That\r\nafter partition an extent measuring 3 acres 10 guntas had\r\nbeen allotted to the share of respondent No.2/Judgment\r\nDebtor No.1 and the said fact is evident from the records of\r\nright pertaining to the year 2008-09. Therefore, the claim\r\nof the appellants/petitioners of property being joint family\r\nproperty and no partition having taken place between the\r\nfamily members is incorrect. Further it is also contended\r\nthat respondent No.2/Judgment Debtor No.1 had obtained\r\nloan from the decree-holder to meet his family necessity by\r\noffering aforesaid land as security and since he failed to\r\nrepay the loan, proceedings were initiated, award was </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">accordingly passed. In the proceeding for recovery of\r\naward amount sufficient opportunity was provided to the\r\nrespondent No.2/Judgment Debtor No.1, as there was no\r\nresponse from him, the property was put to auction in\r\nwhich the Respondent No.4/auction purchaser emerged as\r\nthe highest bidder for the bid amount of Rs.17,50,000/-. A\r\nsale certificate has been issued in favour of the auction\r\npurchaser. Thereafter, the Respondent No.4/auction\r\npurchaser has moved an application for delivery of vacant\r\npossession of the subject land. That in order to defeat the\r\nrights of the Respondent No.4/auction purchaser, the\r\npresent application has been filed in collusion between the\r\nrespondent No.2/Judgment Debtor No.1 and the\r\nappellants/petitioners.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. The point that arises for consideration in this\r\nappeal is that:\r\n <i>\"Whether the executing court on\r\nthe facts and circumstances is\r\njustified in rejecting the application\r\nfiled by the appellant/petitioners under\r\nOrder 21 Rule 97, 98 and 101 of CPC?\" </i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. Perusal of aforesaid provisions, of Chapter IV\r\nof the Stamp Act, makes it clear the entire object of the\r\nStamp Act is to ensure payment of stamp duty and\r\nrecovery of duty and penalty payable on the instrument\r\nrequired to be stamped under the Act. Though, non\r\npayment of stamp duty would result in instrument\r\nbecoming inadmissible, no where in the said Act, is there\r\nany provision rendering any Act done or purported to be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">done upon an insufficiently stamped instrument an illegal\r\nact. On the other hand, all the provisions would only insist\r\nand provide for manner of payment and mode of recovery\r\nof stamp duty. Sections 36 and 41 of the Stamp Act\r\nclarifies the position wherein upon payment of duty and\r\npenalty an endorsement be made and on such endorsement\r\nit shall be acted upon and authenticated as if it has been\r\nduly stamped. Thereby validating all acts done or cause to\r\nbe done based on insufficiently stamped instrument.</span><i><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. Thus, making it clear insufficiency of stamp\r\nduty cannot be a ground for invalidating any act or action\r\ntaken thereupon. Further, if any action is to be held or\r\nconsidered to be an illegal act the same ought to be\r\nexpressly provided under the provisions of the Act and in\r\nthe absence of any such provision it cannot be presumed to\r\nbe so. If no consequence is provided for breach of a\r\nprovision despite the usage of the term \"Shall\" normally it\r\nhas to be construed as directory and not mandatory.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. In the light of aforesaid settled principles of law,\r\nas seen from the provisions of the Stamp Act no\r\nconsequences for insufficiency of stamp duty in the nature\r\nof rendering the act a nullity is provided for. It only\r\nprovides for modes and methods of imposition and recovery\r\nof duty and penalty. Thus, it could not be inferred that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">action taken pursuant to and upon an insufficiently stamped\r\ndocument would be illegal, null and void and non est in the\r\neye of law in the absence of any specific provisions thereof.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30. The document in question, namely award has\r\nbeen impounded by the Executing Court by its order dated\r\n10.01.2020 and has directed the office to send the original\r\naward to the district registrar for adjudication keeping the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">certified copy of the award on the file. The Registrar by his\r\nletter dated 13.02.2020 has issued a calculation memo\r\ncalculating the stamp duty payable at Rs.3,405/-. In the\r\nmeanwhile, the order rejecting the application filed by the\r\nappellants/petitioners have been stayed by this Court and\r\nrecords from Executing Court have been called for including\r\nthe original award. The Stamp Duty has not been paid in\r\nview of the pendency of this matter and interim order\r\ngranted by this Court. In view of the provisions of the\r\nStamp Act and the principles of law, that on the payment\r\nof stamp duty, interest and penalty if any, the documents\r\nbecome admissible and it relates back to the date of\r\nexecution, therefore, the contention of the learned counsel\r\nfor the appellant that the entire process and the action\r\ntaken by the executing court have been rendered illegal\r\nand without jurisdiction cannot be countenanced.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. It is seen that for the purpose of proceedings\r\nunder Section 34 of the Arbitration and Conciliation Act, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1996, payment of stamp duty would not be a ground. A\r\nclear exception is carved out in this regard. Though, a\r\nquestion with regard to payment of stamp duty and\r\nadmissibility of the document may be raised at the time of\r\nenforcement of the award under Section 36 and same\r\nwould not in any case be read to render non-enforceability\r\nof the award in itself. The holistic reading of the provisions\r\nof the Stamp Act, 1957 with the object and purport of\r\nArbitration and Conciliation Act, 1996, which is to achieve\r\nthe expeditious disposal of the disputes by way of alternate\r\ndispute resolution mechanism, it cannot be held that nonpayment of stamp duty on the instrument or any action\r\ntaken thereof would render the entire process illegal and\r\nwithout jurisdiction.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. As regards the objections to the territorial\r\njurisdiction of the executing Court to entertain the\r\nexecution petition, learned counsel relied upon the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">judgment in the case of L and T Finance Ltd., Mumbai,\r\n(Supra), wherein, the learned judge of the Jarkhand High\r\nCourt relying upon the judgment of the Apex Court in the\r\ncase of Bharat Aluminum Company vs. Kaiser\r\nAluminum Technical Service Incorporation and\r\nOthers reported in (2012) 9 SCC 552 dealing with\r\ndistinction between subject matter of arbitration and\r\nsubject matter of suit with reference to Section 2 (1) (e) of\r\nthe Arbitration and Conciliation Act, 1996, has held that the\r\njurisdiction of the executing Court would be the place of\r\nthe arbitration proceedings as the subject matter in the\r\narbitration was the amount claimed with interest and not\r\nthe immovable property. That merely because the\r\nimmovable property which sought to be sold for satisfying\r\nthe award is situated within the jurisdiction of the\r\nexecuting court it cannot be filed there, but can be\r\ntransferred for execution.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>35. Thus, objection to the territorial jurisdiction\r\nneeds to be raised at the first instance and the same\r\ncannot be raised thereafter.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36. For the aforesaid reasons and analysis, this\r\nCourt is of the considered view that no grounds are made <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">out warranting interference with the judgment and order\r\npassed by the executing Court. Points raised above are\r\nanswered accordingly.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(a) The appeal in RFA No.200058/2020 is\r\ndismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1d610057478438e818b4d25cf52d0bd2.JPG', 'a9401a069c39b6d32cda4fd1d2b30a72.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-28', 1, '', '', '2022-09-27 16:48:56', '2022-09-28 12:16:10'),
(2343, 'FvwDAUhvvr21fdTqcRQcRVFwZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicle Act. Karnataka High Court exercises power under Order 41 Rule 33 CPC to enhance compensation from 11 lakhs to 44 lakhs in the appeal filed by the Insurance Company. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>National Insurance Co Ltd Vs Alwin Lobo and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.F.A. 8449 of 2015 decided on 19 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The factual matrix of the case of the claimant before\r\nthe Tribunal is that on 23.05.2009, the petitioner and his brother\r\nwere proceeding in the motorcycle and auto rickshaw which\r\ncame from Iruvali side in a rash and negligent manner dashed\r\nagainst the motorcycle. As a result, the injured sustained\r\ngrievous injuries and immediately, he was taken to Alva’s\r\nHospital, Moodabidri and after first aid treatment, shifted to A.J.\r\nHospital, Mangalore and was admitted as an inpatient from\r\n23.05.2009 to 17.07.2009 and again admitted to Mangala\r\nHospital, Mangalore from 02.06.2010 to 04.06.2010 and in\r\nManjunatha Hospital, Kundapura from 14.06.2011 to 15.06.2011\r\nand in Mangala Hospital, Mangalore from 15.06.2013 to\r\n16.06.2013. Thus, he spent an amount of Rs.5,24,139.37\r\ntowards medical expenses.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Having heard the respective counsel and also on\r\nperusal of the material available on record, the points that would\r\narise for consideration of this Court are:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Whether the Tribunal has committed an error\r\nin entertaining the claim petition in a case of\r\nfraud as contended by the appellantInsurance Company?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) Whether the claimant has made out a ground\r\nto invoke Order 41, Rule 33 of C.P.C. to\r\nenhance the compensation?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iii) Whether the interest awarded by the Tribunal\r\nat the rate of 8% per annum is just and\r\nreasonable and it requires interference of this\r\nCourt?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iv) What order? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Point No.(i)</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">16. I have already pointed out that the complaint was\r\ngiven on the very next day of the accident and accident has\r\noccurred on 23.05.2009 at 8.30 p.m. and immediately, the\r\ninjured was taken to the hospital in the night itself and complaint\r\nwas given on the next day. When the driver of the auto\r\nrickshaw has come and deposed before the Court that auto\r\nrickshaw has involved in the accident and apart from that, he\r\nalso pleaded guilty and order sheet is also produced before the\r\nCourt with regard to the same. In order to counter the same,\r\nexcept the oral evidence of R.Ws.1 to 3, who have not supported\r\nthe case of the Insurance Company, nothing is placed on record.\r\nNo doubt, it is settled principle of law that fraud and justice\r\nshould not dwell together, in order to come to a conclusion that </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">it was a case of fraud and implication of the vehicle, no ample\r\nmaterial is placed before the Court. When such being the case, I\r\ndo not find any ground to reverse the findings of the Tribunal\r\nwith regard to the involvement of the vehicle and causing of an\r\naccident. Hence, I answer point No.(i) as ‘negative’.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(ii)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. In view of the judgment of the Apex Court in\r\nERUDHAYA PRIYA v. STATE EXPRESS TRANSPORT\r\nCORPORATION LTD. reported in 2020 SCC Online SC 601, in\r\na case of more than 31% disability, future prospects has to be\r\nadded. Hence, if future prospects at 40% is added, the income\r\nof the claimant comes to Rs.28,000/- per month. Therefore,\r\ntaking note of the passport which is marked as Ex.P18, wherein\r\nthe date of birth of the claimant is mentioned as 30.07.1980, he\r\nwas aged about 29 years at the time of the accident, though in\r\nthe claim petition it is mentioned as 34 years. Hence,\r\nconsidering the year of the accident 2009, the relevant multiplier\r\napplicable is ‘17’. Having taken the income at Rs.28,000/- per\r\nmonth, disability at 65% and the relevant multiplier ‘17’, the loss\r\nof future income works out to Rs.37,12,800/-. Hence, in all, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">claimant is entitled for compensation of Rs.44,92,140/- as\r\nagainst Rs.11,39,340/- awarded by the Tribunal.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(iii)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. Learned counsel appearing for the appellantInsurance Company would vehemently contend that the interest\r\nawarded at 8% by the Tribunal is on higher side and it was the\r\naccident of the year 2009. Having taken note of the accident of\r\nthe year 2009 and also bank interest prevailing in the\r\nnationalized bank, it is appropriate to reduce the interest at 8%\r\nper annum to 6%.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(iv)<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n(i) The appeal is allowed in part. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>(ii) The impugned judgment and award of the\r\nTribunal dated 20.06.2015 passed in\r\nM.V.C.No.596/2014 is modified granting\r\ncompensation of Rs.44,92,140/- as against\r\nRs.11,39,340/- with interest at 6% per annum <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">from the date of petition till deposit invoking\r\nOrder 41, Rule 33 of C.P.C.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '552e95fcdf7db0202b1b3abeaaf4748b.JPG', '0390ac918139bb52fbfd29a19b810757.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-29', 1, '', '', '2022-10-28 13:16:43', '2022-10-29 06:36:08');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2344, 'yYoD3YlUODtHxWYw0ay4VJtmq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land Acquisition Act. In respect of the awards passed after 2013 Act, appeal is maintainable only under Section 74 of the 2013 Act and not under Section 54 of the 1894 Act. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Deputy Commissioner and Special land acquisition officer Vs M/S S.V. Global Mill Limited.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Review Petition 328 of 2021 decided on 21 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B. Veerappa and Justice K. Natarajan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. On 7.2.2013, the review petitioner being the Special Land\r\nAcquisition Officer issued a preliminary notification under the\r\nprovisions of Sections 17(2) and 17(4) r/w Section 4(1) of the 1894\r\nAct to acquire 3.16 acres of land out of 24 acres 4 guntas in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">property bearing No.59/1 sitauted at Binny Mill Road, Bengaluru\r\nNorth taluk, within the BBMP limits, invoking special powers in\r\ncases of urgency and same was published in the official gazette on\r\n14.2.2013 and was affixed at convenient places near the land\r\nindicating the possession being taken without hearing the\r\nobjections as contemplated under Section 5A of the 1894 Act and\r\nalso given wide publications in the newspapers. Accordingly on\r\n18.11.2013 final notification under section 6(1) r/w Section 17(2) of\r\nthe 1894 Act was issued and possession of the land was secured.\r\nOn 1.1.2014, the Right to Fair Compensation and Transparency in\r\nLand Acquisition, Rehabilitation and Resettlement Act, 2013 (\'2013\r\nAct\' for short) came into force. On 8.10.2014 the award came to\r\nbe passed under the provisions of the 2013 Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 4. On 29.4.2015, the respondent objected the award passed\r\nby the present review petitioner and thereby filed an application for\r\nreference. The Special Land Acquisition officer (\'SLAO\' for short)\r\nafter receipt of the said application, has made a reference under\r\nSection 64(1) of the 2013 Act and the reference authority\r\nregistered the same in LAC No.33/2017. The reference authority <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">considering both the oral and documentary evidence on record by\r\nthe judgment and award dated 29.10.2018 allowed the reference in\r\npart holding that the respondent is entitled for market value of the\r\nacquired land at the rate of Rs.8624/- per square feet and also\r\ncompensation under Section 29 of the 2013 Act with all statutory\r\nbenefits.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. In view of the aforesaid rival contentions urged by the\r\nlearned counsel for the parties, the only point that would arise for\r\nour consideration in the present Review Petition is:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>\"Whether the Miscellaneous First Appeal\r\nNo.3806/2019 filed by the review petitioner before\r\nthis Court under Section 54 of the 1894 Act is\r\nmaintainable, when the award came to be passed on\r\n8.10.2014 i.e., after 2013 Act came into force w.e.f\r\n1.1.2014, in the facts and circumstances of the\r\npresent case ?\" <br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. It is not in dispute that the review petitioner/Special\r\nLand Acquisition Officer (\'SLAO\' for short) has proposed for\r\nacquisition of land measuring 3 acres 16 guntas in property bearing\r\nNo.59/1, Ward No.29, within the limits of Bruhat Bengaluru\r\nMahangara Palike, out of the larger extent of 24 acres 4 guntas,\r\nbelonging to the respondent, situated on Binny Mill Road, Bengaluru\r\nNorth taluk. Accordingly, the Deputy Commissioner issued\r\npreliminary notification on 7.12.2013 under the provisions of\r\nSection 17(2) and 17(4) r/w Section 4(1) of the 1894 Act, invoking\r\nspecial powers in cases of urgency and the same was published in\r\nofficial gazette on 14.2.2013. Subsequently, final notification under\r\nSection 6(1) r/w 17(2) of the 1894 Act came to issued on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18.11..2013 and possession of the land was secured on the same\r\nday.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. It is also not in dispute that 2013 Act came into force\r\nw.e.f 1.1.2014. Thereafter, the SLAO proceeded to pass the award\r\non 8.10.2014 fixing the market value of the acquired land at\r\nRs.4,620/- per square feet with all statutory benefits. The\r\nrespondent being not satisfied with the market value fixed by the\r\nSLAO in respect of the acquired land, has filed an application\r\n(protest petition) to make reference to the authority contemplated\r\nunder Section 64 of the 2013 Act for determination of the market\r\nvalue for the acquired land. The SLAO on receipt of the\r\napplication, has made reference under Section 64(1) of the 2013\r\nAct and the reference authority registered the same in L.A.C.\r\nNo.33/2017. Before the reference authority, the landlord examined\r\nas PW.1 and got marked the documents as per Ex.P1 to Ex.P34 and\r\nthe present review petitioner/respondent has not adduced any\r\nevidence nor produced any documents. The reference authority\r\nconsidering the oral and documentary evidence on record, has\r\nallowed the reference and fixed the market value of the acquired <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">property at the rate of Rs.8624/- per square feet instead of\r\nRs.4,620/- per square feet, awarded by the Special LAO with all\r\nstatutory benefits.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>39. Learned AAG while arguing with regard to the extent to\r\nwhich 2013 Act applies to the acquisitions that have been started\r\nunder the 1894 Act, but where award is not made when the 2013\r\nAct came into force, has mainly contended that the provisions of\r\nthe 2013 Act which can be applied are only Sections 25 to 30 and\r\nall other provisions of the 1894 Act will continue to apply relating to\r\nmaking of an award, request to make reference, award by the\r\nreference Court/authority and challenge thereto etc., According to\r\nthe learned AAG, in the present case, though award passed after\r\nthe 2013 Act came into force, the reference has to be made only\r\nunder Section 18(1) of the 1894 Act and after passing of the award\r\nby the reference Court, the aggrieved party may file an appeal\r\nbefore this Court under Section 54 of the 1894 Act and the\r\nprovisions of Section 5 of the Limitation Act are applicable. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>41. As stated supra, once the provisions of Section 24(1)(a)\r\nof the 2013 Act applies to the case on hand, then the provisions of\r\n2013 Act to pass award, request to make a reference, award by the\r\nreference authority and challenge thereto, automatically applies.\r\nAdmittedly in the present case, the Special Land Acquisition Officer\r\nhas made reference under Section 64(1) of the 2013 Act and the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reference authority passed the award as contemplated under\r\nSection 69 of the 2013 Act and therefore, automatically the\r\nprovisions of Section 74 of the 2013 Act applies for filing the appeal\r\nbefore this Court. Thereby, the contention of the learned AAG\r\nthat 1894 Act is applicable for all other purposes, is without any\r\nbasis and cannot be accepted.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>43. The said proposition of law has no application to the facts\r\nand circumstances of the present case. In the present case, the\r\nquestion that arose for consideration is as to whether the appeal\r\nlies under Section 74 of the 2013 Act or Section 54 of the 1894 Act.\r\n2013 Act came into force w.e.f 1.1.2014. Admittedly, in the\r\npresent case, the award came to be passed on 8.10.2014 under the\r\nprovisions of 2013 Act i.e., after the new Act came into force.\r\nTherefore, the provisions of Section 24 (1)(a) of the 2013 Act are\r\napplicable and the reference has to be made only under Section 64\r\nof the 2013 Act to the reference authority and the reference\r\nauthority has to determine the compensation under Section 69 of\r\nthe 2013 Act. Then the appeal lies to this Court under section 74 of\r\nthe 2013 Act. Therefore, the said judgment is no way helpful to the\r\nreview petitioner. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>82. It is an undisputed fact that the respondent - M/S S.V.\r\nGlobal Mill Limited is originally owner of larger extent of land\r\nmeasuring 110 acres as admitted by the impleading applicant in\r\nparagraph-11 of the application. It is also not in dispute that the\r\nrespondent has alienated some of its properties and as on the date\r\nof the notification issued to acquire the land of the respondent, 24\r\nacres 4 guntas belong to the respondent - M/s S.V. Global Mill\r\nLimited. The preliminary notification issued by the SLAO on\r\n7.2.2013 for acquisition of 3 acres 16 guntas out of 24 acres 4\r\nguntas in Sy.No.59/1 invoking urgency clause followed by the final\r\nnotification dated 18.11.2013 and subsequently the award came to\r\nbe passed on 8.10.2014 i.e., after the 2013 Act came into force\r\nw.e.f. 1.1.2014 and the SLAO awarded the compensation at the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">rate of Rs.4,620/- per square feet. Admittedly, the present\r\napplicant, who is holding one share together with his wife in the\r\nrespondent company has not challenged the acquisition proceedings\r\ninitiated by the State Government admitting the ownership of the\r\nrespondent in respect of the property in question nor challenged the\r\naward passed by the SLAO under the provisions of 2013 Act. It is\r\nalso not in dispute that the respondent being aggrieved by the\r\naward, has filed the protest petition to make reference to the\r\nauthority contemplated under Section 64 of the 2013 Act for\r\ndetermination of the higher market value for the acquired land.\r\nThe SLAO on receipt of the application, has made reference under\r\nSection 64(1) of the 2013 Act and the reference authority\r\nregistered the same in L.A.C. No.33/2017. The applicant if really\r\ninterested in the property, he should have filed an application for\r\nimpleading before the reference authority. Admittedly, the\r\nreference authority considering the oral and documentary evidence\r\non record, has proceeded to award compensation at the rate of\r\nRs.8624/- per square feet. The said award passed by the reference\r\nauthority has not been challenged by the applicant. The SLAO\r\nbeing aggrieved by the judgment & award passed by the reference </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">authority, has filed MFA No.3806/2019 before this Court. This\r\nCourt by the judgment & award dated 25.9.2019, has dismissed\r\nthe appeal filed by the present review petitioner on the ground of\r\nlimitation. From the date of initiation of acquisition proceedings in\r\nthe year 2013 till the proceedings ended in MFA No.3806/2019 at\r\nthe instance of the State Government/DC & SLAO, the applicant\r\nwas fence-sitter. On that ground also, the present application is\r\nliable to be dismissed with exemplary costs.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>84. Throughout it is the case of the State Government\r\nbefore the Hon\'ble Supreme Court that appeal lies under section 54\r\nof the 1894 Act before this Court against the order passed by the\r\nreference Court/authority and not under Section 74 of the 2013 Act.\r\nThe applicant except stating that the present application filed in\r\npublic interest, has not stated what is the locus standi to question\r\nthe acquisition proceedings when the payment of the compensation\r\namount as per the award having been allowed and the proceedings\r\nunder the 1894 Act and 2013 Act attained finality. As stated supra,\r\nthe applicant is a fence-sitter till disposal of the MFA before this\r\nCourt and when the matter reached the Hon\'ble Supreme Court, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">applicant sought for permission to file an application for\r\nimpleadment/intervention in the review petition. Accordingly,\r\nwhile dismissing the SLP as withdrawn, applicant is given liberty to\r\nfile an application for impleadment/intervention before this Court\r\nwhich shall be considered subject to objections that may be raised\r\nby the respondent.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>87. It is well settled that the applicant who is a share holder\r\nof the company does not have any interest in the property of the\r\ncompany while the company is going a concern and hence he\r\ncannot be termed to be necessary and proper party or interested\r\nparty in the proceedings, at this stage of the review petition filed\r\nby the petitioner under Order 47 Rule 1 of the Code of Civil\r\nProcedure.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>91. Learned counsel for the impleading applicant relied upon\r\nthe dictum of the Hon\'ble Supreme Court in the case of Smriti\r\nMadan Kansagra -vs- Perry Kansagra reported in 2021 SCC\r\nOnLine 909 with regard to \'fraud vitiates everything\'. Admittedly <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in the present case, the State has admitted the ownership of the\r\nrespondent in respect of the property in question and the\r\nimpleading applicant has not made out any fraud on the part of the\r\nState Government in its action to initiate the acquisition\r\nproceedings in respect of the property belonging to the respondent,\r\nthereby the said judgment has no application to the facts and\r\ncircumstances of the present case.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>92. Learned counsel for the impleading applicant also relied\r\nupon the judgment of the learned Single Judge of this Court in the\r\ncase of Ramaiah -vs- Shivalingaiah reported in 2016 SCC OnLine\r\nkar 4501 with regard to scope of intervention. In the said\r\njudgment, the learned Single Judge of this Court dealt with power\r\nof the Court to permit a person or body of persons to present\r\nopinion or to take part in the proceedings. The said judgment has\r\nonly persuasive value and not applicable to the facts and\r\ncircumstance of the present case.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>94. The present application is filed by the impleading\r\napplicant, who all along the fence-sitter only to harass the\r\nrespondent and wasted precious time of the Court. The experience\r\nof this Court depicts that in recent years there has emerged a trend\r\nof filing speculative litigations before various Courts of law, not just\r\nin the Court of first instance, but also in the High Court as well as\r\nbefore the Hon\'ble Supreme Court. It is the duty of the Courts to\r\nensure that such litigations shall be weeded out at the first instance\r\nrather than allowing to be festered and thereby coming in the way\r\nof genuine litigants seeking justice treating the Court as \"Temple of\r\nJustice\" and to protect precious public & judicial time of the court.\r\n\"This augurs ill for the health of our judicial system\". <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>95. Like any other organ of the State, the Judiciary is also\r\nmanned by human beings - but the function of the judiciary is\r\ndistinctly different from other organs of the State - in the sense its\r\nfunction is divine. Today, the judiciary is the repository of public\r\nfaith. It is the trustee of the people. It is the last hope of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">people. After every knock at all the doors fail, people approach the\r\njudiciary as the last resort. It is the only temple worshipped by\r\nevery citizen of this nation, regardless of religion, caste, sex or\r\nplace of birth. It is high time the judiciary must take utmost care\r\nto see that the temple of justice does not crack from inside, which\r\nwill lead to a catastrophe in the justice-delivery system resulting in\r\nthe failure of public confidence in the system. We must remember\r\nthat woodpeckers inside pose a larger threat than the storm\r\noutside.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 96. Viewed from any angle, the applicant has no locus standi\r\nto come on record in the present Review Petition. Thereby, the\r\napplication is liable to dismissed with costs.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>97. For the reasons stated above, the point raised is\r\nanswered in the negative holding that the impleading application\r\nfiled by the impleading applicant under Order 1 Rule 10 r/w 151\r\nCPC is not maintainable and the applicant has not made out any\r\ncase to implead him in the present Review Petition, in the peculiar\r\nfacts and circumstances of the present case. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The Review Petition is dismissed as devoid of any\r\nmerit. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c223616c13a84a3b7459e9cc7cec8a16.JPG', '43697079b338aa4c45d47485ec235a9b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-31', 1, '', '', '2022-10-28 13:59:29', '2022-10-31 08:45:19'),
(2239, 'k9w4Dub6AoIoDRwaPNuGL2Byz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Once all the requirements under Section 14 of the SARFAESI Act are complied with by the secured creditor, it is the duty of the CMM/DM to assist the secured creditor in obtaining the possession. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Balkrishna Rama Tarle Thr LRS and another Vs Phoenix ARC Private Limited and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Special Leave Petition 16013 of 2022 decided on 26 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice Krishna Murari.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 03.08.2022 passed by the High Court of Judicature at Bombay in Writ Petition No. 9749/2021, by which the Division Bench of the High Court has allowed the said writ petition preferred by the respondent No. 1 herein – secured creditor and has set aside order dated 27.08.2021 passed by the designated authority under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the SARFAESI Act, 2002) and directed the designated authority under Section 14 of the SARFAESI Act to dispose of the application under Section 14 of the SARFAESI Act afresh, legal heirs of original respondent No. 2 claiming to be the tenant of the mortgaged property, have preferred the present Special Leave Petition. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The Religare Finvest Ltd. (hereinafter referred to as the Religare) sanctioned a loan of Rs. 6 crores in favour of the borrowers. The said loan was secured by a registered mortgage created by borrowers in favour of Religare in respect of the property ­ secured assets. The borrowers committed defaults in repayment of the said loan which led to Religare classifying borrowers’ account as a NonPerforming Asset (NPA). The Religare thereafter, issued a notice dated 13.04.2018 under Section 13(2) of the SARFAESI Act calling upon borrowers to pay the amount then outstanding under the said facility. That thereafter, by a Deed of Assignment dated 29.09.2018, Religare assigned all its right, title, interest, and benefit under the said loan agreement to respondent No. 1 herein – original petitioner No. 1 before the High Court. Thus, respondent No. 1 – original petitioner No. 1 stepped into the shoes of Religare and became the secured creditor and in that capacity issued a notice dated 21.05.2019 under Section 13(2) of the SARFAESI Act to borrowers calling upon borrowers to make payment of a sum of Rs. 5,83,22,866/­. That thereafter, the secured creditor took symbolic possession of the secured assets under Section 13(4) of the SARFAESI Act. On 21.09.2019, the same was intimated to the borrowers vide their letter dated 21.09.2019. A public notice was also issued by the secured creditor in two newspapers in compliance with the provisions of the Security Interest (Enforcement) Rules, 2002. That thereafter, the secured creditor filed an application under Section 14 of the SARFAESI Act seeking assistance of designated authority – respondent No. 3 herein – District Magistrate, Nashik, for taking physical possession of the secured assets. The petitioner herein – original respondent No. 2 claiming to be a tenant in respect of the ground floor plus first floor showroom along with service station on a part of the secured assets bearing Nos. 465 and 463 sought to intervene in the said proceedings filed under Section 14 of the SARFAESI Act. The petitioner placed reliance upon an order dated 20.04.2018 passed in Regular Civil Suit No. 58/2018 filed by him against one of the borrowers, whereby one of the borrowers was restrained from dis­possessing him from the said premises. At this stage, it is required to be noted that neither the borrower(s) nor the petitioner(s) instituted any proceedings before the Debt Recovery Tribunal (DRT) under Section 17 of the SARFAESI Act against the steps taken under Section 13 of the SARFAESI Act. That thereafter, the designated authority passed the following order dated 27.08.2021 and declined to assist the secured creditor in taking possession of the secured assets and kept the said application pending by observing that after termination of the tenancy rights of the petitioner by the Finance Company by following due procedure of law the further orders regarding possession of the mortgage property will be decided.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. Therefore, the short question which is posed for consideration of this Court is whether while exercising the powers under Section 14 of the SARFAESI Act, the District Magistrate/designated authority could have passed such an order that unless and until the secured creditor terminates the tenancy rights of the third person by following due procedure of law and further orders regarding possession of the mortgaged property then and then only an application under Section 14 of the SARFAESI Act will be decided?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. Now so far as the reliance placed upon the decision of this Court in the case of Harshad Govardhan Sondagar (supra) by the learned counsel appearing on behalf of the petitioner is concerned, the same shall not be applicable to the facts of the case on hand, what is observed by this Court in the aforesaid case is the DM/CMM has to give a notice and opportunity of hearing to the person in possession of the secured assets claiming to be a “Class (1) or (2)” lessee of mortgagor/borrower, as well as to secured creditor, consistent with principles of natural justice, and then take a decision. In the said decision, it is not observed that the DM/CMM has to adjudicate the rights between the parties.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. Now so far as the reliance placed upon the decision of this Court in the case of Vishal N. Kalsaria (supra) by the learned counsel appearing on behalf of the petitioner is concerned, the said decision shall also not be applicable to the facts of the case on hand. In the said decision, the question before this Court was of conflict of claim under the Maharashtra Rent Control Act, 1999 and the provisions of the SARFAESI Act, and which law will prevail. The scope and ambit of the powers to be exercised under Section 14 of the SARFAESI Act were not directly in question before this Court. Even as observed and held by this Court in the aforesaid decision, a judgment cannot be interpreted and applied to fact situations by reading it as a statute. One cannot pick up a word or sentence from a judgment to construe that it is the ratio decidendi on the relevant aspects of the case (para 33). </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. In view of the above and for the reasons stated above, we are of the opinion that the High Court has not committed any error in passing the judgment and order and directing the designated authority to dispose of the application under Section 14 of the SARFAESI Act. We are in complete agreement with the view taken by the High Court. The Special Leave Petition stands dismissed. </b></font></p>', '263d8eda65fcbf05a9758352a4467111.jpeg', '3a20644e8c910316d12c5b7169da1647.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-27', 1, '', '', '2022-09-27 17:45:19', '2022-09-28 09:35:57');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2240, 'lax95sE4eScH4Fh5Ke83ICIPe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When the right to sue for specific performance of the contract is extinguished by lapse of time, purchaser cannot resist suit for possession by the owner. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Azmathulla Khan Vs Thankamma Mathews<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ILR 1994  KAR 1665 decided on 20 April 1994<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">Justice </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Navadgi </span><span style=\"font-size: 12pt;\"><span lang=\"EN-US\">and Justice Krishnan. </span></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The case of the plaintiff in brief is as follows:\r\nThe plaintiff had agreed to sell and defendant had agreed to purchase the premises bearing No. 102,\r\nsituate at Wheeler Road, Civil Station, Bangalore more fully described in the plaint schedule, for a\r\nsum of Rs. 90,000/- and had executed an agreement to sell on 12-11-1974. She had received a sum\r\nof Rs. 3,000/- only on the date of the said agreement. As per the terms of the agreement, the sale\r\ntransaction had to be completed on or before 11-1-1975. As per the terms and conditions of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">agreement, plaintiff had agreed to obtain a declaration from one Mohanambal who had not joined in\r\nthe execution of the Sale Deed dated 29-6-1972 in favour of the plaintiff and if for any reason he was\r\nunable to obtain any such declaration from her, it had been agreed that she and her husband should\r\nfurnish security indemnifying the possible loss and damages to the extent of Rs. 5,000/-. On\r\n25-11-1974, the defendant paid a further sum of Rs. 15,000/- to the plaintiff and on that date the\r\ndefendant was put in possession of the suit property. The agreement also provided that if the\r\npurchaser failed to perform his part of the contract, the advance amount paid by him would stand\r\nforfeited. There was exchange of correspondence including notices between the parties and plaintiff\r\ngot issued a notice dated 10-1-1975 informing the defendant that the agreement entered into\r\nbetween them stood cancelled and that the advance amount of Rs. 18,000/- paid, stood forfeited\r\nand the defendant was also called upon to pay damages for use and occupation of the suit premises\r\nat Rs. 500/- per month. He was also called upon to deliver possession of the suit premises. It was\r\nfurther pleaded that the plaintiff was always willing and ready to perform her part of the contract\r\nand the breach of contract was on the part of the defendant. Therefore, plaintiff sought for\r\ndeclaration and possession and recovery of damages at Rs. 1,870/-.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. On these contentions the Points that arise for Consideration in this Appeal are:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Whether the defendant-appellant entered into possession of the suit house in part performance of\r\nthe agreement to sell in his favour?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n2. Whether the defendant has performed or is willing to perform his part of the contract?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Whether the defendant has done some act in furtherance of the contract?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Whether the plaintiff was entitled to rescind the contract and whether therefore the agreement to\r\nsell stood cancelled?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5(a). Whether it is open to the appellant-defendant to challenge the finding of the Hon\'ble Supreme\r\nCourt in Civil Appeal No. 6076 of 1990 that the remedy of the defendant appellant to sue for specific\r\nperformance of agreement to sell in his favour is barred by limitation?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5(b). If yes, whether the remedy of the defendant-appellant to sue for specific performance of the\r\nagreement to sell in his favour is not barred by limitation?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Whether the two Decisions of the Division Bench of this Court reported in I.LR.1988 Kar.631 and\r\n1992 Kar.429 are Decisions rendered per incuriam and whether a second look is necessary in\r\nrespect of this aspect of the matter.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. If the finding on Point No. 4 is against the appellant-defendant and if the finding on point 5(a) is\r\nagainst the defendant-appellant, whether irrespective of any finding on any other aspect, the\r\nplaintiff is entitled to recover possession of the property?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n8. Whether there is any scope to interfere with the judgment and decree of the learned Civil Judge?<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. POINT No. 1: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Therefore this statement impliedly connects the parting of further advance of Rs. 15,000/- by the\r\ndefendant and parting of possession by the plaintiff. If the plaintiff had not parted with possession\r\nof the suit house in favour of the defendant, in furtherance of the agreement to sell executed by her\r\nin her favour and it was only by way of temporary accommodation for a period of eight days, her\r\nconduct would have been altogether different if after expiry of the period of eight days she was not\r\nput back in possession of the suit house. The plaintiff has not demanded possession, prior to the\r\ninstitution of the suit, putting forth the case that the defendant had entered into possession of the\r\nsuit house only by way of temporary accommodation and that he had not kept up his word and that\r\nhe should give back possession of the suit house. The learned City Civil Judge held that there was no\r\nreliable evidence on the side of the defendant to show that he was put in possession of the suit house\r\nin part performance of the agreement to sell in his favour and he was unable to hold that defendant\r\nwas put in possession in pursuance of the suit agreement. Having given our anxious consideration to\r\nthe conduct of the parties and also exchange of notices and in particular about the plaintiff having\r\nnot denied this case of the defendant in the notice or in the course of the plaint, it appears that the\r\nprobabilities are very much in favour of the defendant that he was put in possession of the suit\r\nhouse in furtherance of the agreement to sell in his favour and the learned Civil Judge was not right\r\nin recording a finding on this aspect of the matter against the defendant. Therefore, the first Point\r\nshould be answered in favour of the appellant-defendant and is answered accordingly.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. POINT NOS. 2 & 3:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>There is nothing in the contract relating to possession of the properly being given except it be that it\r\nwas expected to be given at the time of registration of the document. Therefore, the acts alleged to\r\nhave been done by the defendant-appellant viz., carrying out repairs of the building in question,\r\ncannot in any way be referable to the pre-existing contract and there is absolutely no nexus between\r\nthe contract and the alleged act of the defendant of effecting repairs to the suit house. Apart from\r\nthe alleged repairs stated to have been carried out by the defendant, no other act has been done by\r\nhim in furtherance of the contract. Therefore, it has to be held that the defendant-appellant has\r\nfailed to establish that he has done some act in furtherance of the contract to claim the benefit under\r\nSection 53-A of the Transfer of Property Act. Therefore, it is clear that both, Points 2 and 3 must be\r\nanswered against the defendant-appellant and accordingly they are so answered.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. POINT No. 4:<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>When our findings on Points 2 and 3 are against the appellant, it must necessarily be held that\r\nplaintiff was entitled to repudiate the contract and subsequently the Agreement to sell stood\r\ncancelled. Therefore, Point No. 4 is answered against the appellant and in favour of\r\nplaintiff-respondent.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. POINT No. 5(a):-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The contention advanced on behalf of the appellant that the finding of the Supreme Court on the\r\nquestion of limitation is one rendered per incuriam is on the supposed assumption that the Decision\r\nof the Supreme Court relied upon by the plaintiff is on the Doctrine of Precedent. It must be noted\r\nthat the Decision of the Supreme Court in Civil Appeal No. 6076 of 1990 wherein the finding is\r\nrecorded on the question of limitation against the appellant-defendant herein, is rendered\r\ninter-parties and that Decision is not pressed into service either on the Doctrine of Precedents or by\r\nvirtue of Article 141 of the Constitution. If that be so, there could hardly be any scope for the\r\nappellant to get over the finding of the Hon\'ble Supreme Court of India on the question of limitation\r\non the principle of Doctrine of per incuriam. When this aspect of the matter was specifically brought\r\nto the notice of the learned Advocate for the appellant he could not give any answer to justify his\r\ncontention in this regard. Therefore, it has to be held that it is not open to the defendant-appellant\r\nto challenge in this Appeal the finding of the Supreme Court on the question of limitation.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. POINT No. 5(b)</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>31. It may be seen that if the obligation cast on the plaintiff to obtain the declaration from\r\nMohanambal and also giving of indemnity cannot be construed as a condition precedent to make the\r\ndate fixed for performance of the contract as per the agreement viz., 11-1-1975 effective, if we are to\r\ntake that date as the date fixed for performance of the contract, then the appellant-defendant would\r\nbe in a more disadvantageous position than the case where the period of limitation is counted from\r\nthe time when he has notice that the performance is refused within the meaning of second clause in\r\nthe third column of Article 54 of the Limitation Act, The remedy of the appellant for suing for\r\nspecific performance would stand barred much earlier than the date as per the finding of the\r\nHon\'ble Supreme Court of India. In LAKSHMINARAYANA REDDIAR v. S.NAICKER AND\r\nANOTHER , it has been held that despite a date having been fixed in the contract for purpose of\r\ncause of action to sue arose from the date of setting aside of the sale was based upon the finding that\r\nboth the parties in that case had understood that a conveyance could be executed only after the\r\nexecution sale was set aside by the Court and till then the party who had executed the agreement\r\nhad no valid title to convey and the cause of action commenced from the date of setting aside of the\r\nsame, though the date also had been fixed for performance of the contract. That was a case where\r\nthe vendor had no title to the property as on the date of execution of the agreement and having\r\nregard to the facts and circumstances of that case and also the understanding between the parties it\r\nwas held that the date fixed for performance of the agreement was of no consequence. No\r\nproposition of law as canvassed by the learned Advocate for the appellant has been laid down in this <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Decision.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">32. Hence, even if we are to hold that it is open to the appellants to canvas before this Court in this\r\nAppeal that the remedy of suing for specific performance is not barred, it has to be held that he has\r\nfailed to establish the same and on the other hand the finding is that, the remedy stands barred by\r\nlimitation as more than three years have elapsed both from the date fixed for performance as also\r\nfrom the time when the appellant had notice that performance was refused. Therefore, the finding\r\non Point No. 5(b) is against the appellant.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>33. POINT No. 6:-<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>35. It is no doubt true that in the Decision of the learned Single Judges of the Punjab and Harayana\r\nHigh Court, Hyderabad High Court and Bombay High Court reported respectively in Chaman Lal vs.\r\nSmt. Surinder Kumari, A.I.R. 1955 Hyderabad 101 Jahangir Begum v. Gullam Ali Ahmed and Maruti\r\nGurappa and Anr. v. Krishna Balla and Anr. and the Division Bench Decisions of the Bombay and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Assam High Court in Nanasaheb Gujaba Banker v. Appa Ganu Banker and Ors. and A.I.R 1949\r\nAssam 8 Bholai Phukan v. Lakhi Kanta Ahom and Ors., it has been held that though the relief to\r\nobtain specific performance of the contract is barred by limitation, the vendee who has obtained\r\npossession of the property could resist the suit filed by the vendor by virtue of the Doctrine of Part\r\nPerformance under Section 53-A of the Transfer of Property Act. After having gone through these\r\nDecisions, we are not, with all respect to the learned Judges of these Courts persuaded to accept\r\ntheir view point in this regard for more than one reason. It may be noticed that in none of these\r\nDecisions the impact of Doctrine delay defeats equity has been considered. Further, for fulfilment of\r\nthe essential ingredient of this Section viz., that the transferee is willing to perform his part of the\r\ncontract, cannot be satisfied if the right of transferee to get specific performance of the contract is\r\nextinguished by lapse of time prescribed under the Law of Limitation. Therefore, we are in\r\nrespectful disagreement with the proposition propounded in these Decisions relied upon by the\r\nlearned Advocate for the appellant. Therefore we are not persuaded by the argument of the learned\r\nAdvocate for the appellant that the proposition enunciated in the two Decisions and require a\r\nsecond look or reconsideration. On the other hand, we respectfully agree with everyone of the\r\nreasons given in the two Decisions for the proposition that a transferee who has obtained possession\r\nof immoveable property in part performance of the contract cannot resist the suit for possession\r\nfiled by the vendor if his right to obtain specific performance is barred by limitation and we reiterate\r\nthe said principle. Hence, Point No. 6 is answered against the appellant.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>36. POINT No. 7:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\nWhen we have answered Points 2 to 4 against the appellant and in favour of respondent-plaintiff, it\r\nis clear that irrespective of the finding on the point of limitation, the plaintiff is entitled to succeed.\r\nIn addition to that when issues 4, 5 and 6 are also answered against the appellant-defendant, it is\r\nclear that there could be absolutely no doubt that plaintiff-respondent is entitled to recover\r\npossession of the property. Even, if the findings on Points 2 to 4 were against the\r\nplaintiff-respondent and in favour of the appellant, in view of the findings on Points 5 and 6, there is\r\nabsolutely no scope for the appellant-defendant to resist the suit for recovery of possession.\r\nTherefore, in any view of the matter there is absolutely no scope for the appellant-defendant to resist\r\nthe suit for recovery of possession filed by the plaintiff. On the other hand, having regard to all the\r\ncircumstances of the case, it should be held that the lower Court was justified in ordering the\r\ndefendant-appellant to deliver possession of the property to the plaintiff. No argument could be\r\nadvanced that despite the findings on the several Points as above, still there is scope to deny the\r\nrelief of possession to the plaintiff. Hence, Point No. 7 is answered in favour of the\r\nplaintiff-respondent and against the appellant.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>37. POINT No. 8:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>When our findings on several Points are as above, it is crystal clear that there is absolutely no scope\r\nto interfere with the judgment and decree of the learned Civil Judge and the Appeal is liable to be\r\ndismissed. Therefore, Point No. 8 is answered against the appellant.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>40. In the result, the Appeal is dismissed. In the facts and circumstances of the case, we direct the\r\nparties to bear their own costs throughout.</b></span></p>', 'f67fb364be15dce5d3a12833edd2b4c0.jpeg', 'a83e57fa045356d1cb539add2803181c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-27', 1, '', '', '2022-09-27 18:17:09', '2022-09-27 18:26:54'),
(2241, 'zw5qPIxq4EFHJE8ZSrUVVPqRw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Employee who gives false information bearing on his fitness or suitability to the post can be terminated from service during the probation period without holding any inquiry. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Satish Chandra Yadav Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6955 of 2022 decided on 26 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Surya Kant and Justice J.B. Pardiwala.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The facts giving rise to this appeal may be summarised as\r\nunder:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5.1 The appellant herein was serving as a Constable (General\r\nDuty) with the CRPF. He was recruited as a temporary employee of\r\nthe post of Constable (GD) in the CRPF on 28.07.2014. After\r\nundergoing the basic training, he reported at the 179th Battalion\r\non 17.12.2015. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>5.2 While filling up the requisite verification Form–25 at the time\r\nof his recruitment in the CRPF in Column 12 in response to the\r\nquestion whether any case was pending against him, the appellant\r\nanswered in the negative.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5.3 Thereafter, under Rule 14 of the CRPF Rules, the Character\r\nand Antecedents verification Form of the appellant was sent to the\r\nCollector, District Sant Kabir Nagar, Uttar Pradesh. The Collector,\r\nvide his letter dated 25.02.2015, informed the Deputy Inspector\r\nGeneral of Police (DIGP), Group Centre, CRPF Rampur that the\r\nCriminal Case No. 1015 of 2008 had been registered against the\r\nappellant herein at the P.S. Khalilabad Sant Kabir Nagar, Police\r\nStation for the offences punishable under Sections 147, 323, 324,\r\n504 and 506 resply of the Indian Penal Code (for short, “IPC”).\r\nUpon receipt of the information as aforesaid, the services of the\r\nappellant herein came to be terminated in exercise of the powers\r\nconferred under Rule 5(1) of the Central Civil Services (Temporary\r\nService) Rules, 1965 vide the order dated 11.03.2016 on the\r\nground that he had concealed the information as aforesaid while\r\nfilling up the Form–25.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. Having heard the learned counsel appearing for the parties and\r\nhaving gone through the materials on record, the only question\r\nthat falls for our consideration is whether the High Court\r\ncommitted any error in passing the impugned order?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>41. In the aforesaid case, this Court held that the purpose of\r\nrequiring an employee to furnish information regarding\r\nprosecution/conviction, etc. in the verification Form was to assess\r\nhis character and antecedents for the purpose of employment and\r\ncontinuation in service; that suppression of material information <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and making a false statement in reply to queries relating to\r\nprosecution and conviction had a clear bearing on the character,\r\nconduct and antecedents of the employee; and that where it is\r\nfound that the employee had suppressed or given false information\r\nin regard to matters which had a bearing on his fitness or\r\nsuitability to the post, he could be terminated from service during\r\nthe period of probation without holding any inquiry. This Court\r\nalso made it clear that neither the gravity of the criminal offence\r\nnor the ultimate acquittal therein was relevant when considering\r\nwhether a probationer who suppresses a material fact (of his being\r\ninvolved in a criminal case, in the personal information furnished\r\nto the employer), is fit to be continued as a probationer.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>47. Thus, it was held that even if what transpired may technically\r\namount to arrest, the benefit of a mistaken impression rather than\r\nthe consequences of a deliberate andwillful misrepresentation and\r\nconcealment of facts, should be extended to the employee.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>65. Thus, this Court took the view that irrespective of the fact\r\nwhether the dispute is of a trivial nature or not, it is the credibility/\r\ntrustworthiness of a particular employee which matters the most\r\nwhen it comes to public employment. This Court took the view that\r\nif a particular employee supresses something important or makes\r\nany false declaration with a view to secure public employment then\r\nsuch employee could be said to have exhibited a tendency which is\r\nlikely to shake the confidence of the employer. In such\r\ncircumstances, it would be within the discretion of the employer\r\nwhether to continue or not to continue such an employee who has\r\nexhibited a tendency which reflects on his overall character or\r\ncredibility<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>75. Thus, the principles of law discernible from the aforesaid are\r\nthat unless, it is shown that exceptional and special circumstances\r\nexist; that substantial and grave injustice have been done and the\r\ncase and question present features of sufficient gravity to warrant\r\na review of the decision appealed against, this Court would not\r\nexercise its overriding powers under Article 136(1) of the\r\nConstitution. The wide discretionary power with which this Court\r\nis invested under Article 136 is to be exercised sparingly and in\r\nexceptional cases only.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>76. In so far as the Appeal arising out of the Special Leave Petition\r\n(C) No. 20860 of 2019 filed by Satish Chandra Yadav is concerned,\r\nthe same should fail. We are not at all convinced with the case put\r\nforward by Satish Chandra Yadav for informing the respondent\r\nherein that there was no criminal case pending against him on the\r\ndate he filled up the verification form. The explanation offered by\r\nSatish Chandra Yadav is nothing but his own understanding of\r\nwhat is prosecution and pendency of a criminal case. If he knows\r\nthat trial is deemed to have commenced with the framing of charge,\r\nthen we are sure he knows and understands what is criminal\r\nprosecution</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>77. Indisputably, Satish Chandra Yadav was still under probation\r\nat the time, his services had been terminated. It is also apparent\r\nfrom the record that Satish Chandra Yadav had been given\r\nappointment on probation subject to the verification of facts given\r\nin the verification Form. To our mind, therefore, if an enquiry\r\nrevealed that the facts given were wrong, the respondent herein\r\nwas at liberty to dispense with the services of the appellant Satish\r\nChandra Yadav as the question of any stigma and penal\r\nconsequences at this stage would not arise. It bears repetition that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">what has led to the termination of the services of the appellant\r\nSatish Chandra Yadav is not his involvement in the criminal case\r\nwhich was then pending, and in which he had been acquitted\r\nsubsequently but the fact that he had withheld relevant\r\ninformation while filling in the verification Form. He could be said\r\nto have exhibited or displayed such a tendency which shook the\r\nconfidence of the respondent</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">79. Ms. Madhavi Divan, the learned ASG has rightly relied on\r\nKendriya Vidyalaya Sangathan (supra) in which this Court held\r\nthat the purpose of requiring an employee to furnish information\r\nregarding prosecution/conviction, etc. in the verification Form was\r\nto assess his character and antecedents for the purpose of\r\nemployment and continuation in service; that suppression of\r\nmaterial information and making a false statement in reply to the\r\nqueries relating to prosecution and conviction had a clear bearing\r\non the character, conduct and antecedents of the employee; and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that where it is found that the employee had suppressed or given\r\nfalse information in regard to the matters which had a bearing on\r\nhis fitness or suitability to the post, he could be terminated from\r\nservice during the period of probation without holding any inquiry.\r\nThis Court also made it clear that neither the gravity of the criminal\r\noffence nor the ultimate acquittal therein was relevant when\r\nconsidering whether a probationer who suppresses a material fact\r\n(of his being involved in a criminal case, in the personal information\r\nfurnished to the employer), is fit to be continued as a probationer.\r\n80. We find that the observations in the aforesaid case are fully\r\napplicable to the appeal filed by Satish Chandra Yadav. We are of\r\nthe opinion that it was a deliberate attempt on the part of the\r\nappellant Satish Chandra Yadav to withhold the relevant\r\ninformation and it is this omission which has led to the termination\r\nof his service during the probation period.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>81. In view of the aforesaid, the Appeal arising out of the Special\r\nLeave Petition (C) No. 20860 of 2019 filed by Satish Chandra Yadav\r\nfails and is hereby dismissed.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>82. So far as the connected Appeal arising out of the Special Leave\r\nPetition (C) No. 5170 of 2021 filed by Pushpendra Kumar Yadav is concerned, the same also fails on the very same line of reasoning\r\nadopted by us. The only difference in the case of the appellant\r\nPushpendra Kumar Yadav is that he had put in about four years\r\nof service before he came to be terminated.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>83. In the result, both the appeals fail and are hereby dismissed\r\nwith no order as to costs.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>84. Pending application, if any, stands disposed of.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c3548f7b609787f8dd47af83f25e2a60.PNG', 'bd7d2c8b737c8989580f09e581afea37.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-27', 1, '', '', '2022-09-27 19:11:46', '2022-09-28 11:06:56'),
(2242, '3jXrTWV5ByJuRcDy1KAdz4GP6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for specific performance. When the property is jointly owned by several persons, all of them must be made parties to the suit failing which the suit is liable to be dismissed. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Moreshar Yadaorao Mahajan Vs Vyankatesh Sitaram Bhedi Thr Lrs and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5755-5756 of 2011 decided on 27 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B.R. Gavai and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The plaintiff is a doctor who was working in a\r\nGovernment Hospital. The plaintiff was also in private\r\npractice. The plaintiff, for starting his private practice, took\r\non rent a part of the house of the defendant. It is the case of\r\nthe plaintiff that subsequently, the defendant was in financial\r\nneed for his agricultural cultivation and household expenses\r\nand therefore, he suggested to the plaintiff that he should\r\npurchase the said part of the house which the plaintiff was\r\noccupying, together with an added portion. The plaintiff\r\naccepted the said suggestion and an agreement to sell was\r\nentered into on 24th July 1984. As per the terms of the said\r\nagreement to sell, the defendant agreed to sell and the plaintiff\r\nagreed to purchase the suit property for Rs.50,000/-. The\r\nplaintiff paid an amount of Rs.24,000/- on the date of the\r\nagreement and the defendant executed an earnest note in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">favour of the plaintiff. As per the terms of the agreement to\r\nsell, the sale deed was to be executed before 31st March 1985.\r\nIt is the case of the plaintiff that on 31st July 1984, the\r\ndefendant again requested for money and on such request, the\r\nplaintiff paid him an amount of Rs.6,000/-. It is also the case\r\nof the plaintiff that pursuant to the aforesaid payment, he was\r\nput in possession of the suit property on 31st July 1984</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. It is further the case of the plaintiff that he was always\r\nready and willing to perform his part of the agreement and\r\ntherefore, he informed the defendant by registered letter that\r\nhe was willing to complete his part of the transaction before\r\n31st March 1985. However, the defendant replied to the said\r\nnotice by alleging that the transaction was of money lending\r\nand denied the execution of the sale deed. In this background,\r\nthe plaintiff filed a suit for specific performance before the trial\r\ncourt. The trial court, vide judgment and decree dated 28th\r\nMarch 1990, decreed the suit and directed the defendant to\r\nexecute the sale deed by accepting the balance sale\r\nconsideration as per the terms of the agreement to sell. It\r\nfurther directed that if the defendant failed to execute the sale\r\ndeed, the same should be executed through the court. Being <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">aggrieved thereby, the defendant preferred an appeal before\r\nthe Appellate Court which was also dismissed vide judgment\r\ndated 13th June 1996.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The defendant thereafter preferred a second appeal\r\nbefore the High Court which came to be partly allowed vide the\r\nimpugned judgment. Though the High Court denied the\r\nspecific performance, it directed the defendant to refund the\r\namount of Rs.30,000/- along with an interest at the rate of 9%\r\nper annum from the date of the institution of the suit till its\r\nrealization. Hence, the present appeal is at the instance of the\r\nplaintiff.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. As already discussed hereinabove, the plaintiff\r\nhimself has admitted in the plaint that the suit property is\r\njointly owned by the defendant, his wife and three sons. A\r\nspecific objection was also taken by the defendant in his\r\nwritten statement with regard to non-joinder of necessary\r\nparties. Since the suit property was jointly owned by the\r\ndefendant along with his wife and three sons, an effective\r\ndecree could not have been passed affecting the rights of the\r\ndefendant’s wife and three sons without impleading them.\r\nEven in spite of the defendant taking an objection in that\r\nregard, the plaintiff has chosen not to implead the defendant’s\r\nwife and three sons as party defendants. Insofar as the\r\nreliance placed by Shri Chitnis on the judgment of this Court\r\nin the case of Kasturi (supra) is concerned, the question\r\ntherein was as to whether a person who claims independent\r\ntitle and possession adversely to the title of a vendor could be\r\na necessary party or not.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. It can thus be seen that what has been held by this\r\nCourt is that for being a necessary party, the twin test has to\r\nbe satisfied. The first one is that there must be a right to some\r\nrelief against such party in respect of the controversies\r\ninvolved in the proceedings. The second one is that no effective\r\ndecree can be passed in the absence of such a party.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. In that view of the matter, we find that no error can\r\nbe noticed in the judgment of the High Court. The appeals are\r\ntherefore liable to be dismissed.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. In the result, the appeals are dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4270e3f1d469186871aedeb2942e1e56.JPG', 'acb00633fda973ec1d52591e2b87393f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-29', 1, '', '', '2022-09-28 16:38:13', '2024-03-07 15:14:46');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2243, 'E3ogq1f8YtQVO6izwCQA0TRtx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Delimitation of wards based on the population is flexible clothing the Government with power to meet difficult situation since scale of representation may not be always uniform. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>B.Z.  Zameer Ahmed Khan and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 16321 of 2022 decided on 16 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The notification dated 14.7.2022 issued by the State of\r\nKarnataka represented by its Under Secretary to the Department of\r\nUrban Development (BBMP-2) in exercise of the power conferred\r\nunder Section 7 of the Bruhat Bengaluru Mahanagara Palike Act,\r\n2020 (for short `Act, 2020\') finalizing the delimitation of the wards\r\nfor the purpose of holding elections of councilors to Bruhat\r\nBengaluru Mahanagara Palike (for short `BBMP\') is impugned in all\r\nthese writ petitions.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. The BBMP is the body constituted and was established\r\nunder the provisions of Karnataka Municipal Corporations Act, 1976.\r\nThe Bengaluru City originally comprised 198 wards, which was\r\ndetermined under the Act, 1976. The election to the councilors of\r\nthe BBMP was held in September, 2020 and term of the councilors\r\nwas for a period of five years which expired on 10.9.2020. For\r\neffective administration of the BBMP, the state government enacted\r\nthe Bruhat Bengaluru Mahanagara Palike Act, 2020, which came\r\ninto effect from 11.1.2020. Section 7(3)(a) of the Act, 2020\r\nspecifies that the Government shall by order determine the wards\r\ninto which the Corporation shall for the purpose of its election, be\r\ndivided into not less than 225 but more than 250 wards. Section 13\r\nof the Act, 2020 specifies that the general election shall be held for\r\nthe purpose of constitution of new Corporation before the expiry of\r\nduration of existing Corporation or on dissolution. Since the election\r\nwas not held as specified under Section 13 of the Act, 2020, the\r\nDivision Bench of this Court in WP No.10216/2020 directed the\r\nState Government to publish the final notification of reservation\r\nwithin two weeks from 22.9.2020 and the State Election\r\nCommission was directed to hold election for councillors of BBMP <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">within the maximum period of six weeks from the date on which\r\nfinal notification is published.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. The points that arise for consideration are as follows:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 1) Whether there is a constitutional bar contained in\r\n Article 243ZG of the Constitution of India to challenge the\r\n delimitation of wards for holding elections of councilors of\r\n BBMP ?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 2) Whether the delimitation of wards is in\r\n conformity with Section 7 of the BBMP Act, 2020? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Reg:Point No.1:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. The Hon’ble Supreme Court in the case of State of Goa\r\n(supra) has held that the constitutional bar operates only from the\r\ndate of notification of election till the date of result of the election\r\nand it is the matter of discretion exercisable by writ Court as to\r\nwhether an interference is called for when the electoral process is\r\nimminent and therefore orders made under statutory provisions <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dealing with delimitation can be questioned in Courts provided the\r\nstatute concerned does not give such orders the status of statutory\r\nprovision. It was further held that if the assistance of writ Court will\r\nbe required in subserving the progress of the election and\r\nfacilitating its completion, the writ Court may issue orders provided\r\nthat the election process, once begun, cannot be postponed or\r\nprotracted in any manner.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. In view of the ratio enunciated by the Hon’ble Supreme\r\nCourt in the case of State of Goa (supra), the challenge to the\r\ndelimitation of wards is held to be maintainable.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Reg. Point No.2:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. In the instant case, the respondent-State has\r\ncontended that the wards have been delimited in the Bengaluru City\r\nin conformity with the guidelines issued by the State Government\r\nand also Section 7 of the Act, 2020.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. That one of the smallest geographical areas of the\r\nassembly constituency is that of Chamarajpet constituency, the\r\ntotal area of which is 4.32 sq. kilometers and the geographical area\r\nof Mahadevapura constituency which has the largest geographical\r\narea of 115.18 sq. kilometers. Earlier there existed seven wards in\r\nChamarajpet constituency and eight wards in Mahadevapura\r\nconstituency. The population of Chamarajpet constituency as per\r\n2011 census was 2,37,460 and that of Mahadevapura constituency\r\nwas 4,31,976. The Delimitation Commission by considering the\r\naforesaid salient factor has reduced the number of wards from\r\nseven to six in Chamarajpet constituency and increased the number\r\nof wards in Mahadevapura constituency from eight wards to\r\nthirteen wards. Similar exercise has been carried out in respect of\r\nother constituencies and in the absence of any material that the\r\nwards have been increased deliberately in constituencies held by\r\nthe ruling party and the boundaries of the wards have been\r\nmanipulated to give unfair advantage to the ruling party, the\r\nsubmission of the learned counsel for the petitioners that the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">impugned notification is actuated by malafides and illegalities is not\r\nacceptable.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36. Sub-section 2 of Section 21 of KMC Act specifies ratio\r\nbetween the number of councilors to be elected from each ward and\r\nthe population of that ward as far as practicable be the same\r\nthroughout the city. The term \'population\' is defined in Section\r\n2(26-A) of the Act, 1976 which specifies that the population was\r\nascertained at the last preceding census of which relevant\r\nfigures have been published. Hence, the submission of the learned\r\ncounsel for the petitioners that the delimitation of the wards under\r\nthe Act, 1976 was not on the basis of population ascertained by\r\npreceding census and as such, the guidelines issued by the State <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Government are not applicable for delimitation of wards under the\r\nAct, 2020 is not acceptable.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>40. In exercise of the power conferred under section 7(2) of\r\nthe Act, 2020, the government constituted the committee for\r\ndelimitation of wards initially for a period of 6 months. Due to\r\nCovid-19 pandemic, the commission could not complete the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">delimitation of wards and the state government by notification\r\ndated 06.08.2022 extended the term of the commission for a period\r\nof 2 months from 28.01.2022. Since the commission could not\r\ncomplete the process of delimitation of wards due to COVID-19\r\npandemic, the government by notification dated 22.08.2022\r\nextended the term of commission from 28.03.2022 to 30.06.2022,\r\nand during the said period the delimitation committee submitted\r\nthe report.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>42. Therefore even assuming that the aforesaid notification\r\ncould not revive a commission which was already dead, it can be\r\ncertainly held that a new committee was constituted on that date\r\nand even then the report submitted by it would be a valid report.\r\nThe government has ratified the action of the commission in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">submitting the report by issuing the aforesaid notification. Hence, it\r\ncannot be said that the impugned notification which is issued on the\r\nbasis of the report submitted by the delimitation commission is\r\nvitiated.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 43. In view of the preceding analysis, I am of the\r\nconsidered opinion that the impugned notification issued by the\r\nState Government is in conformity with Section 7 of the BBMP Act,\r\n2020.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>Writ petitions stand dismissed. </b></span></p>', '0dfb3fe4a7b9d515c5d126279eb5fc84.jpeg', '75a33b07434eaec09f63c437cb84e7b4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-29', 1, '', '', '2022-09-28 17:25:55', '2022-09-29 14:28:38'),
(2244, 'sMarBhAdVKojnF0UufQjj3BcG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Application for amendment of pleadings cannot be entertained after the commencement of trial, unless the party could not raise the issue before commencement of trial. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mallappa and others Vs Girijadevi and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 103752 of 2021 decided on 1 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ashok S. Kinagi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Brief facts leading rise to filing of this writ\r\npetition are as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Petitioners have filed a suit in O.S.No.52/2016 for the\r\nrelief of permanent injunction. Respondents herein have\r\nfiled written statement denying the averments made in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">plaint. The Trial Court framed the issues. Thereafter, the\r\nTrial Court recorded the evidence of the parties and posted\r\nthe matter for argument. The respondents filed an\r\napplication for amendment of written statement. The said\r\napplication was opposed by the petitioners by filing\r\nobjections. The Trial Court after hearing the parties,\r\nallowed the application filed by the respondents. Hence,\r\nthis writ petition.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Petitioners filed a suit in O.S.No.52/2016 for the\r\nrelief of permanent injunction. The respondents filed\r\nwritten statement. The Trial Court framed the issues. The\r\nparties have led the evidence. When the matter was posted\r\nfor argument, the respondents have filed an application for\r\namendment of the pleadings on the ground that, PW.1\r\nduring the course of cross-examination has admitted that\r\nthe market value of the suit property is more than\r\nRs.80,00,000/- hence for the said reason, the respondents\r\nhave filed application for amendment of written statement. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. In view of the law laid down by the Hon’ble\r\nApex Court in Pandit Malhari Mahale’s (supra) case, the\r\napplication for amendment of pleadings cannot be\r\nentertained after the commencement of trial, unless the\r\nparty could not raise the issue before commencement of\r\ntrial. The Trial Court has committed an error without\r\nconsidering the proviso to Order VI Rule 17 of CPC and\r\nproceeded to pass the impugned order. The impugned\r\norder passed by the Trial Court is contrary and erroneous.\r\nHence, on these grounds, the impugned order is liable to\r\nbe set aside</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The writ petition is hereby allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0c9a4d1850ba8fa533604dc46e1d0962.JPG', '5bbd6cbb02a42731d39d597dd54dde36.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-29', 1, '', '', '2022-09-28 18:10:11', '2022-09-29 12:53:50'),
(2245, 'ONEImVpFkuwTE0O7NE93h8sWK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal trial. In a case resting on circumstantial evidence, motive plays a crucial role. Motive is a double-edged weapon, which will cut either side of the case. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Durugappa Vs State.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 800 of 2016 decided on 16 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Somashekar and Justice T.G Shivashankare Gowda.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This Appeal is directed against the judgment of\r\nconviction and order of sentence dated 20.10.2015\r\nrendered by the Trial Court in Sessions Case\r\nNo.102/2014, sentencing the appellant / accused to\r\nundergo imprisonment for life and to pay a fine of\r\nRs.10,000/-, in default, to undergo simple\r\nimprisonment for six months for an offence under\r\nSection 302 of the Indian Penal Code, 1860 (in short\r\n\'IPC\') and simple imprisonment for one year and to pay\r\na fine of Rs.1,000/-, in default, to undergo simple\r\nimprisonment for one month for the offence under\r\nSection 201 of IPC. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>33. Having heard the arguments of learned\r\ncounsel Sri.Javeed S., for the appellant and the learned\r\nHCGP for the State and on consideration of the\r\nevidence, as the case of the prosecution rests on the\r\ncircumstantial evidence, the chain of circumstances that\r\nhas been pointed out by the evidence to hold that the\r\naccused is guilty of the charges, is as follows:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> (1) Homicidal death of the deceased;\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> (2) On the date of incident, the deceased, at 6.00\r\np.m. going near the canal of tank bund to attend the\r\nnature call;\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> (3) The accused was found following the deceased\r\nin a shortest span of time;\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> (4) The accused returning back from tank bund\r\ncanal with bloodstains on his cloths;\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> (5) Visit of the accused to Renuka Bar and\r\nRestaurant for purchasing of liquor with bloodstained\r\ncloths and \'Thali\' of the deceased in his pocket; <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(6) Visit of the accused to Hotel to have tea on the\r\nnext day morning of the alleged incident along with\r\n\'Thali\' of his deceased wife in his pocket;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n (7) Tracing of the dead body of the deceased in\r\nthe morning of 03.04.2014 at Tank canal bund;\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> (8) Seizure of M.O.3/blade at the instance of\r\naccused and presence of \'O\' group human blood on the\r\ncloths of the accused, broken bangle of the deceased\r\nand the weapon of offence i.e., M.O.3; and\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> (9) The accused purchasing M.O.3/blade from the\r\nshop of PW-16 on the date of incident soon before the\r\nincident. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Reg: Point No.1:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">35. It is the specific case of the prosecution that\r\nthe death of the deceased was homicidal in nature. The\r\ndefence did not deny the death of the deceased wherein\r\nthe defence of the accused did point out that somebody </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">might have committed the murder of the deceased and\r\nhe was not responsible. As found from the material\r\nwitnesses, on 02.04.2014 at about 7.00 p.m., deceased\r\nwas last seen by PW-13/Nagappa Chandrappa, whose\r\ncross-examination did not demonstrate anything to\r\ndoubt his veracity. As seen from the evidence of the\r\ncomplainant and other witnesses, the dead body of the\r\ndeceased was traced on the next day morning and it\r\nhas been subjected to autopsy. PW-20/Dr.Tulasi Naik is\r\nthe Medical Officer of Chigateri Hospital, Davanagere,\r\nwho conducted the Postmortem and his evidence did\r\npoint out the injuries found on the neck of the deceased\r\nmeasuring 12x5x3 cm and issuing of\r\nEx.P13/Postmortem report with an opinion as per\r\nEx.P12 that the deceased has died due to the injury\r\nthat has been caused by means of M.O.3/blade on the\r\nneck of the deceased and the deceased has suffered\r\nneck injury 16 to 24 hours before her death and the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cause of her death was due to hemorrhage with shock\r\nas a result of the cut injury on the throat of the\r\ndeceased. The Postmortem examination was conducted\r\nat 5.30 p.m. on 03.04.2014 wherein the alleged\r\nincident is said to have taken place at 7.00 p.m. on\r\n02.04.2014. Hence, the period of 16 to 24 hours of the\r\ndeath of the deceased take back to the alleged time of\r\nincident. During the course of cross-examination, there\r\nwas no denial by PW-20 that the deceased was not died\r\ndue to injury caused on her neck by means of M.O.3,\r\nexcept suggesting that, a sharp-edged knife can also\r\ncause such injuries. Such a suggestion makes no\r\ndifference as the inquest mahazar as per Ex.P3 and\r\nevidence of PW-3/Basavaraja did point out the neck\r\ninjury on the dead body of the deceased. Hence, the\r\ntotality of the medical evidence and also the panch\r\nwitnesses, who have seen the dead body, point out that\r\nthere are no other chances of the deceased </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">circumventing to the death other than the injury that\r\nshe has suffered. Hence, the material on record did\r\npoint out that the deceased has suffered homicidal\r\ndeath on account of the neck injury.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Reg: Point No.2:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>38. PW-10/Shasappa, the father of the deceased\r\ndid depose before the court that he came to know that\r\nwhile his daughter had gone towards bypass canal to\r\nattend the nature call at 6.00 p.m. did suffer death on\r\nthe alleged date of incident. Hence, the information so\r\nreceived by PW-10 stands corroborated from the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">evidence of PW-7 and PW-13 and therefore, the\r\nprosecution is able to explain its version that on the\r\ndate of alleged incident at about 7.00 p.m., the\r\ndeceased had gone towards canal of Hiremegalagere\r\nlake.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Reg: Point No.3:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>40. PW-7 has deposed that, while he was sitting\r\nnear the canal at 6.00 p.m., had seen the deceased\r\ngoing to attend the nature call, he had also witnessed <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">one minute later, the accused following the deceased.\r\nFurther, PW-7 had an interaction with the accused, at\r\nthat time, accused told him that he is going towards\r\ncleaning yard. On the next day morning, both PW-7 and\r\nPW-13 came to know about the death of the deceased.\r\nThe cross-examination of PWs-7 and 13 did point out\r\nanything as to why they are deposing false against the\r\naccused. They are not the relatives of either the\r\ndeceased or the accused nor enemies of the accused.\r\nPWs-7 and 13 are the fellow villagers, independent\r\npersons and it is quite natural that in a village, people\r\nlike PW-7 and PW-13 going for nature call in the\r\nevening towards canal. Hence, their presence at that\r\nplace is very natural. Hence, their evidence clearly\r\nexplains that PWs-7 and 13 have witnessed the accused\r\nfollowing the deceased towards canal on the evening of\r\nthe alleged date of incident.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Reg: Point No.4:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>42. As seen from the prosecution evidence, the\r\nbloodstained cloths of the accused, which were seen by\r\nPW-12, has been seized under Ex.P14/mahazar, which\r\nare marked as M.Os.8 and 9. PW-8/Jayappa is the\r\npanch witness to the seizure of the bloodstained cloths\r\nof the deceased, who did depose on oath about the\r\nseizure of cloths from the person of the accused under\r\nEx.P5/mahazar. Thus, the evidence of PW-12 takes\r\ncorroboration from the evidence of PW-8 and M.Os.8\r\nand 9, which are the said cloths. Hence, the factum of\r\nthe accused returning from canal bund towards\r\nHiremegalagere village with bloodstained cloths in the\r\nevening of the alleged incident has been explained by\r\nthe prosecution.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Reg. Point No.5:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>43. An another chain of link is, the accused\r\nvisiting Renuka Bar and Restaurant for purchase of the\r\nliquor on the very same night and in this regard, PW14/Ninganagouda Patil, the Manager of Renuka Bar and\r\nRestaurant at Hiremegalagere village, on oath, deposed\r\nthat on 02.04.2014 at about 9.00 p.m., he has sold\r\nBrandy bottle to the accused in his Bar and at that time,\r\nthe cloth of the accused was stained with water and\r\nmud. At the time of giving bill amount, the accused\r\nwhile removing money from his shirt pocket, he saw\r\n\'Thali\'. PW-14 had an interaction asking whether the\r\naccused had quarreled and came to Bar, but the\r\naccused did not respond and left along with Brandy\r\nbottle from the Renuka Bar. Later PW-14 came to know\r\nin the morning about the death of the deceased. The\r\ncross-examination of PW-14 did not point out anything\r\nwhy he is deposing against the accused and nothing is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">shown that PW-14 is an interested person and his\r\nevidence is untruthful.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Reg: Point No.6</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>44. An another link that the prosecution proposed\r\nis, the visit of the accused to the Tea shop of PW15/Veerabhadrappa at 5.30 a.m. on the next day. In\r\nthis regard, PW-15 has deposed that at 5.30 a.m., on\r\nthe next day, he saw the accused coming to his Tea\r\nshop, at that time, PW-15 observed the mud on the\r\nshirt of the accused. At that time, he had seen \'Thali\' in\r\nthe shirt pocket of the accused. PW-15 by 7.30 a.m.,\r\nhe came to know that somebody came enquiring about\r\nthe accused on the ground of murder of the wife of the\r\naccused near bypass canal. Therefore, he had visited\r\nthe spot, seen neck injury and the dead body was in the\r\nweeds. PW-15 identified M.O.10 is the \'Thali\' which he\r\nhad seen in the shirt pocket of the accused, which came\r\nout while the accused removing money from his pocket <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to pay Tea bill and M.Os.8 and 9 are the cloths which\r\nwere stained with mud. The cross-examination of PW15 did not point out anything except the accused\r\nvisiting his shop at 5.30 a.m. on the next day of the\r\nincident. Hence, visit of the accused to the Tea shop of\r\nPW-15 with \'Thali\' in his shirt pocket with mud-stained\r\ncloths has been explained by the prosecution.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Reg. Point No.7:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">46. PW-18/Gururaja, PSI, on 03.04.2014 received\r\nEx.P2/complaint from PW-10 and registered Ex.P8/FIR\r\nand at about 10.00 a.m., he visited the spot and\r\nconducted Ex.P1/mahazar in the presence of PWs-1 and\r\n2 and prepared the Ex.P9/sketch and also drawn\r\nEx.P6/panchanama in the presence of PW-10. At that\r\ntime, he had collected bloodstained bangle pieces, limebox used by the accused and bloodstained soil as per\r\nM.Os.4 to 6. The evidence of the panch witnesses and\r\nalso PWs-3, 7, 10, 12, 13, 14 and 15 did point out that\r\non 03.04.2014, in the morning, the dead body of the\r\ndeceased was retrieved from the spot. The defence did\r\nnot suggest any secondary hypothesis about tracing of\r\ndead body except that the accused was not responsible </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for death of the deceased. Hence, there is no dispute in\r\nthis regard, as such, the prosecution is able to explain\r\nthe retrieval of the dead body of the deceased on the\r\nmorning of 03.04.2014.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Reg. Point No.8:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>47. An another chain of link is, the seizure of\r\nblade at the instance of the accused. In this regard,\r\nPW-23/R.Hanumanthappa, PSI deposed that on\r\n04.04.2014, he has arrested the accused and he has\r\nobserved bloodstained cloths as per M.Os.8 and 9 on\r\nthe person of the accused, who was also holding\r\nM.O.10/Thali in his possession. Hence, the same is\r\nseized under Ex.P14/mahazar in the presence of PW8/Jayappa. The evidence of PW-8/Jayappa stands in\r\nsupport of the prosecution that he has seen the accused\r\nin the presence of PW-23/PSI at Harapanahalli Police\r\nStation where the accused took him and the Police to\r\nthe place of incident where he saw the blade as per <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">M.O.3 and sample of the soil with bloodstains at M.O.1\r\nand the same was seized under Ex.P5/mahazar. The\r\ncross-examination of PW-8 and PW-23 did not point out\r\nanything which gives room to any doubt on the version\r\nof the prosecution. Ex.P16 is the voluntary statement\r\nof the accused recorded by PW-23 and it is the accused,\r\nwho led PWs-8 and 23 as per Ex.P16/his voluntary\r\nstatement and shown the place of incident and\r\nproduced M.O.1/bloodstained soil and also M.O.3/blade.\r\nThe same has been seized under Ex.P14. Hence, the\r\nseizure of the blade at the instance of the accused\r\nunder Ex.P5/mahazar and seizure of the bloodstained\r\ncloths of the accused under Ex.P14/mahazar did explain\r\nby the evidence.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Reg. Point No.9:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>49. Hence, the links that has been pointed out by\r\nthe prosecution do have support from the prosecution\r\nevidence. Now the court has to consider, whether these\r\nlinks can form part of the chain of link leading the chain\r\nof circumstances towards the accused and pointing him\r\nand him alone excluding any secondary hypothesis.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>61. Thus, on total consideration of the material\r\non record, having regard to the submission made by\r\nthe learned counsel for the accused and also the\r\nlearned HCGP, the prosecution is able to explain the\r\noffence against the accused under Part II of Section\r\n304 and Section 201 of IPC. Hence, the order of\r\nimposing sentence of life imprisonment needs to be\r\nmodified.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>62. Having regard to the age of the accused,\r\nwho is having two children to look after and the\r\naccused is in incarceration since 05.04.2014 and he has <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">already undergone sentence from more than 8 years 5\r\nmonths 12 days, which is sufficient sentence for the\r\noffence under Part II of Section 304 and the sentence\r\nof imprisonment awarded by the trial court for the\r\noffence punishable under Section 201 of IPC is\r\nsufficient and calls for no interference, therefore, the\r\nperiod already undergone is sufficient sentence for the\r\naccused to undergo and more so, shall be held to run\r\nconcurrently. Accordingly, the appeal deserves to be\r\nallowed in part.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>ORDER: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The appeal filed by the accused under Section\r\n374(2) of Cr.P.C., 1973, is partly allowed.</b></p>', '7012e62d36166ee3906a5d336fbdaa89.jpeg', '443275a0773ad12818d9aa193ea9db1c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-30', 1, '', '', '2022-09-29 16:25:09', '2022-09-30 08:15:40');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2246, 'bzKnZ5IOekWAjffAPiAYxoFzN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal trial. Insistence of plurality of witnesses in proof of any fact will indirectly encourage subornation of witnesses. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kiran Sebastiyan Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1249 of 2017 decided on 20 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Somashekar and Justice T.G. Shivashankare Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This appeal is directed against the judgment of\r\nconviction and order of sentence rendered by the II\r\nAddl. District and Sessions Judge at Tumkuru in\r\nSC.No.16/2016 dated 11.01.2017 whereby convicted\r\nthe accused for the offence punishable under section\r\n302 IPC, 1860 and sentenced to pay fine of Rs.10,000/-\r\nwhich is reflected in the operative portion of the order.\r\nWhereas the appellant is seeking to consider the\r\ngrounds urged in this appeal and to set aside the\r\njudgment of conviction rendered by the trial court in so\r\nfar as the offence under Section 302 IPC and\r\nconsequently, to acquit the accused.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The factual matrix of the appeal are as\r\nunder:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> On 17.08.2015 complainant namely Jayashankar\r\nfiled a complaint before the New Extension Police\r\nStation, Tumakuru alleging that his daughter –\r\nThejaswini was suffering from mental ill health and\r\naccused had come to his house and said that, he had\r\nfallen in love with her and was interested to marry his\r\ndaughter. But complainant refused to get his daughter\r\nmarried with the accused as she was of unsound mind\r\nin terms of mental ill health. Deceased – Thejaswini\r\nforced the accused to marry her and gave the mobile\r\nphone to the accused. In view of that complainant –<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Jayashankar made altercations with the accused. It is\r\nfurther stated that on 12.08.2015 accused had come to\r\nthe house of complainant at around 10.00 p.m. and\r\nextended life threat to him and deceased and also\r\nabused them in filthy language. Further, it is alleged\r\nthat, accused decided to take away life of his daughter –\r\nThejaswini. On 16.08.2015 at about 2.30 p.m. accused\r\ntook the deceased to a dilapidated condition house and\r\nmurdered her by strangulating her neck with means of\r\nveil.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. In the instant case, the matter thus must\r\ndepend upon the circumstances of each case and the\r\nquality of the evidence of the single witness whose\r\ntestimony has to be either accepted or rejected. If such\r\na testimony is found by the court to be entirely reliable,\r\nthere is no legal impediment to the conviction of the\r\naccused person on such proof. Even as the guilt of an\r\naccused person may be proved by the testimony of a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">single witness, the innocence of an accused person may\r\nbe established on the testimony of a single witness, even\r\nthough a considerable number of witnesses may be\r\nforthcoming to testify to the truth of the case for the\r\nprosecution. Hence, as opined that, it is a sound and\r\nwell-established rule of law that the court is concerned\r\nwith the quality and not with the quantity of the\r\nevidence necessary for proving or disproving a fact.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">24. In the instant case, the prosecution has\r\nsubjected to examination in all PWs.1 to 12 but has\r\ngiven more credentiality to the evidence of PWs.1 and 2\r\nas they are the parents of deceased – Thejaswini and\r\nPW.3 who is none other than the brother and he is not\r\nhaving specific information about the incident and even\r\nthough he has given statement before the investigating\r\nofficer during the course of investigation. These are all </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the evidence which is coming forth on the part of the\r\nprosecution. But the evidence of PWs.1, 2, 3 inclusive\r\nof PW.4 wherein she had given an information relating\r\nto a dead body of woman was lying in a dilapidated\r\nconditional house i.e. the scene of crime and then only\r\nPW.1 – Jaishankar who accompanied with PW.4 –\r\nAnitha to the scene of crime found the dead body of his\r\ndaughter - Thejaswini was lying and there were ants on\r\nher body. Subsequently, he had given complaint as per\r\nEx.P1 and based upon his complaint, criminal law was\r\nset into motion and PW.12 being the investigating officer\r\nwho took up the case for investigation and done the\r\ninvestigation thoroughly and laid the charge sheet\r\nagainst the accused and the charge sheet consisting the\r\nspot mahazar, seizure mahazar and also seized certain\r\nmaterial which got marked on the part of the\r\nprosecution. But the entire case rests upon the\r\ncircumstantial evidence and there are no direct eye </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">witnesses and there is no direct evidence relating to\r\nproven the guilt of the accused.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. In the instant case there are discrepancies\r\nrelating to the medical evidence coupled with the\r\nevidence of PWs.1, 2, 3 and 4. Even deceased –\r\nThejaswini was suffering with mental ill-health and as\r\nsuch she had taken treatment in NIMHANS hospital and\r\nSridhar Hospital at Shimoga. But Exs.P18 and P19\r\nhave been produced relating to deceased suffering with\r\nmental ill-health. These are all the evidence put forth\r\non behalf of the prosecution, but it is the domain vested\r\nwith the prosecution to prove the guilt against the\r\naccused beyond reasonable doubt and equally domain <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">vested with the trial Court to appreciate the evidence in\r\na proper perspective manner.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">32. In this classic case whereby challenging the\r\njudgment of conviction rendered by the trial Court but\r\nthe entire case rests upon circumstantial evidence. It is\r\nrelevant to refer the concept of ‘mensrea’ means guilty\r\nmind. The term used to describe mental element require\r\nto constitute a crime. Generally, it requires that the\r\naccused meant or intended to do wrong or atleast knew\r\nwas doing wrong. However, the precise mental element\r\nvaries from crime to crime. Insofar as motive factor even\r\nto prove the guilty mind of an accused, individual\r\nmotive of person plays an important role. But in the\r\ninstant case even at a cursory glance of evidence PWs.1,\r\n2, 3 and 4 inclusive of evidence of PW.12 a prudent man\r\ncan infer that it is the case which rests upon the\r\ncircumstantial evidence. In case of the circumstantial\r\nevidence motive factor bears the important significance.</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-size: 12pt;\">Motive always locks-up in the mind of the accused and\r\nsometime it is difficult to unlock. People do not act\r\nwholly without motive. The failure to discover the\r\nmotive of an offence does not signify its non-existence.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>33. But the law regarding circumstantial evidence\r\nis well-settled. When a case rests upon the\r\ncircumstantial evidence, such evidence must satisfy\r\nthree tests:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>\r\n1) the circumstance from which an inference of\r\nguilt sought to be drawn, must be cogently and firmly\r\nestablished\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>2) those circumstances should be of definite\r\ntendency unerringly pointing towards guilt of the\r\naccused.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>\r\n3) circumstances taken cumulatively should form\r\nthe chain complete that there is no escape from the\r\nconclusion that within all human probability the crime\r\nwas committed by the accused and none else. These\r\ncircumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any\r\nother hypothesis than that of the guilt of the accused.\r\nThe circumstantial evidence should not only be\r\nconsistent with guilt of the accused but should be\r\ninconsistent with his innocence.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36. But in the instant case, the prosecution even\r\nthough subjected to examination of PWs.1 to 12 but has\r\ngiven more credentiality to the evidence of PWs.1, 2, 3\r\nand also 4. But PW.4 has partially supported the case\r\nof the prosecution but her evidence has not been\r\nsupported absolutely by any other independent witness.\r\nPW.4 in her evidence has noticed that deceased and\r\naccused were frequently visiting and meeting in the\r\nscene of crime. But it is not possible to uphold the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">conviction of the appellant on wholly unreliable and\r\nlimping evidence. But the evidence is clinching and\r\nclearly implicates the accused person is causing for\r\ninfliction of injuries around her neck and even\r\nstrangulating her neck. But the evidence on the part of\r\nthe prosecution must corroborate with the medical\r\nevidence that is the Doctor who conducted autopsy over\r\nthe dead body of the deceased. Unless the medical\r\nevidence has been corroborated with the evidence of\r\nother independent witness on the part of the\r\nprosecution it cannot be arrived at a conclusion that the\r\nprosecution has proved the guilt of the accused beyond\r\nreasonable doubt. In the instant case, the trial Court\r\nhas given more credentiality to the evidence of PWs.1, 2,\r\n3 and 4. Even on a close scrutiny of their evidence and\r\nin totality of circumstances of the case, their evidence\r\nare found to be inconsistent. But it is the domain\r\nvested with the Court to appreciate the evidence in a\r\nproper perspective manner, if not, accused being the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">gravamen of the accusation shall be the sufferer and\r\nthere shall be some absolute miscarriage of justice.\r\nTherefore, in this appeal it requires for re-appreciation\r\nof evidence and also analytically and closely the\r\nevidence let in by the prosecution has to be looked into.\r\nEven on careful scrutiny of the evidence adduced by the\r\nprosecution as stated supra, even though the case rests\r\nupon the circumstantial evidence, but in view of the\r\naforesaid reasons and findings, we are of the considered\r\nopinion that the prosecution has failed to establish the\r\nguilt of the accused beyond all reasonable doubt. There\r\nis a glaring error in the conclusion arrived by the trial\r\nCourt and it requires intervention, if not, certainly there\r\nshall be miscarriage of justice to the accused being the\r\ngravamen of accusation. Therefore, the judgment of\r\nconviction and order of sentence rendered by the trial\r\nCourt requires interference, as there is no cogent,\r\ncorroborative and positive evidence to probabalise that\r\nthe accused has committed the murder of the deceased </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">consequently, the accused is deserving for acquittal.\r\nHowever, Section 304 of IPC is classified into Part I and\r\nII relating to intention or knowledge and vice-versa. In\r\nthe said part of the provision and even taken into\r\nconsideration the aforesaid provision, it is very remote\r\nchance to consider whether it will come under provision\r\nof either Part I or Part II of the said provision of IPC.\r\nBut in the given peculiar facts and circumstances of the\r\ncase, this accused was in incarceration for almost 7\r\nyears and the same can be seen in the materials\r\navailable on record. Therefore, the period of\r\nincarceration would suffice to hold even to the extent of\r\naforesaid intendment of Section 304 of IPC. But this\r\naccused is in judicial custody since from the date of his\r\narrest and even after held conviction by the trial Court.\r\nHe is in incarceration for almost all seven years. Even\r\ntaking into consideration the period of incarceration\r\nundergone, it would be suffice to hold that the service of\r\nsentence would meet the ends of justice. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The appeal preferred by the appellant / accused\r\nunder Section 374(2) of Cr.P.C. is hereby allowed.\r\nConsequently, the judgment of conviction and order of\r\nsentence rendered by the trial Court in S.C.No.16/2016\r\ndated 11.01.2017 is hereby set-aside. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c1a96f766c56216792144c8874464080.jpeg', 'c9759936d96e677d856860895c83ce5c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-30', 1, '', '', '2022-09-29 16:33:57', '2022-09-30 12:53:50'),
(2247, 'IXrpl8ldUPKmwEyZqeCSCFlQy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“The prosecution has done injustice to the family of the victim.”  Shabby investigation compels the Supreme Court to acquit the accused in rape and murder of a six year old child. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chotkau Vs State of Uttar Pradesh.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 361-362 of 2018 decided on 28 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Abdul Nazeer, Justice A.S. Bopanna and Justice V. Ramasubramanian.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. Convicted for the offences punishable under Sections 302 and 376 of the Indian Penal Code, 1860 (for short “IPC”) and sentenced to death by the Sessions Court, which was also confirmed by the High Court on a reference and an appeal, the sole accused has come up with the above appeals.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13. We have carefully considered the rival contentions. In our view, the questions that crop up for our consideration revolve around –</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i) the trustworthiness of the testimonies of PWs 1 to 3, in the light of certain contradictions; </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii) the consequences of the delay on the part of the Police in forwarding the FIR to the Court; </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iii) the failure of the prosecution to produce forensic/medical evidence and its effect and </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iv) the manner in which the questioning under Section 313 of the Code was undertaken and its effect upon the findings recorded.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>I. Trustworthiness of the testimonies of PWs 1 to 3</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>57. Thus there were very serious contradictions, both mutual and otherwise, in the evidence tendered by PWs 1 to 3, on crucial aspects such as,</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">(i) the mode of Lodging of the FIR;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii) the place where the dead body was first seen by the police, persons took the body from the place of occurrence and where it was taken to; </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iii) the Place, Date and Time of conduct of the inquest; and </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iv) the clothes on the body of the victim, recovered by the police. These contradictions make the evidence of PWs 1 to 3 completely untrustworthy. Unfortunately, the Sessions Court as well as the High Court have trivialized these major contradictions to hold that the chain of circumstances have been established unbroken. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>II. Delay in transmitting the FIR to court</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>61. It is clear from the aforesaid decisions that the delay in forwarding the FIR may certainly indicate the failure of one of the external checks to determine whether the FIR was manipulated later or whether it was registered either to fix someone other than the real culprit or to allow the real culprit to escape. While every delay in forwarding the FIR may not necessarily be fatal to the case of the prosecution, Courts may be duty bound to see the effect of such delay on the investigation and even the creditworthiness of the investigation.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>67. In the present case, it is not even known as to who took the first information report from P.W.6 or P.W.4 and submitted before the jurisdictional court. Neither PW­4 nor PW­6 spoke about the person who took the FIR to the court. They did not say that they took it to the court. It is not a case of mere delay in sending the first information report, but one involving the contradictory evidence by the prosecution witnesses on the manner in which the first information report is written.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>68... Therefore, we hold that the delay of 5 days in transmitting the FIR to the jurisdictional court, especially in the facts and circumstances of this case was fatal.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>III. Failure to conduct medical examination</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>80. In cases where the victim of rape is alive and is in a position to testify in court, it may be possible for the prosecution to take a chance by not medically examining the accused. But in cases where the victim is dead and the offence is sought to be established only by circumstantial evidence, medical evidence assumes great importance. The failure of the prosecution to produce such evidence, despite there being no obstacle from the accused or anyone, will certainly create a gaping hole in the case of the prosecution and give rise to a serious doubt on the case of the prosecution. We do not wish to go into the question whether Section 53A is mandatory or not. Section 53A enables the prosecution to obtain a significant piece of evidence to prove the charge. The failure of the prosecution in this case to subject the appellant to medical examination is certainly fatal to the prosecution case especially when the ocular evidence is found to be not trustworthy.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>81. Their failure to obtain the report of the Forensic Sciences Laboratory on the blood/semen stain on the salwar worn by the victim, compounds the failure of the prosecution.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>IV. Argument revolving around section 313 of the Code</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>82. Though arguments were advanced even on </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i) the manner in which the statement of the accused was recorded under Section 313 of the Code;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">(ii) the failure of the Court to comply with the mandate of Section 313(1)(b) of the Code in letter and spirit; and</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">(iii) the consequences of such failure, we do not think it necessary to go into the said question. This is for the reason that we have found in Part­I of this order that the evidence of P.Ws 1 to 3 are not trustworthy and in Part­III of this order that the failure of the prosecution to subject the appellant to medical examination was fatal. These findings are sufficient to overturn the verdict of conviction and penalty.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>85. In fact this is a case where the appellant is so poor that he could not afford to engage a lawyer even in the Sessions Court. After his repeated requests to the Court of District and Sessions Judge, the service of an advocate was provided as amicus. In cases of such nature, the responsibility of the Court becomes more onerous. When we analyse the evidence with such a sense of responsibility, we are not convinced that the guilt of the appellant stood established beyond reasonable doubt. Therefore, the appeals are allowed and the conviction and penalty are set aside. The appellant shall be released forthwith if not wanted in connection with any other case</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '476483a7318c161ff272780742856dfc.jpg', 'fc3a23a869655092591ea9fb126d136d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-30', 1, '', '', '2022-09-29 17:08:58', '2022-09-30 06:30:51'),
(2248, 'F6HU9nIbvjrPpdW8MODukc77I', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'In the absence of restraint order, mere pendency of a civil dispute cannot be a ground to refuse sanction of layout plan. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K.S. Shivakumar and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 56870 of 2015 decided on 6 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The first petitioner claiming to be the absolute\r\nowner of the land bearing Sy.No.43/3 measuring to an\r\nextent of 20 guntas (converted land) situated at\r\nChamalapura Village, Kasaba Hobli, Nanjangud Taluk\r\nsubmitted an application with the second respondent\r\nfor sanction of single layout plan as specified under\r\nSection 17 of the Karnataka Town and Country\r\nPlanning Act, 1961. The second respondent approved\r\nthe single layout plan subject to certain terms and\r\nconditions and one of the condition imposed was that\r\nthe land which was designated for road in the Master\r\nPlan and which was incorporated in the single layout\r\nplan was required to be relinquished free of cost to\r\nthe second respondent.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Such being the case, the fifth respondent\r\nfiled a complaint with the second respondent stating\r\nthat the relinquishment deed was executed by the first\r\npetitioner after he has conveyed the subject property\r\nby executing a registered gift deed in favour of the\r\nsecond petitioner and also the subject property\r\nbelongs to him. The second respondent issued a show\r\ncause notice to the first petitioner calling upon him to\r\nshow cause as to why the sanctioned plan should not\r\nbe cancelled for having suppressed the execution of\r\nthe registered gift deed in favour of the second\r\npetitioner. The petitioners replied to the show cause\r\nnotice and in the reply, the second petitioner has\r\ncategorically stated that he is willing to execute the\r\nrelinquishment deed in favour of the second\r\nrespondent.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The second respondent by order dated\r\n01.12.2015 cancelled the single layout plan\r\nsanctioned in favour of the first petitioner stating that\r\nthe petitioner has violated the terms and conditions\r\ncontained in the sanctioned layout plan. Taking\r\nexception of the same, this petition is filed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. It is undisputed that the first petitioner\r\nexecuted the registered gift deed dated 11.10.2012\r\nconveying the subject property in favour of the second\r\npetitioner. The first petitioner without disclosing the\r\nexecution of the registered gift deed executed the\r\nrelinquishment deed in favour of the second\r\nrespondent as specified in the terms and conditions\r\ncontained in the sanctioned building plan. The second\r\npetitioner in the reply to the show cause notice issued\r\nby the second respondent has categorically stated that\r\nhe is willing to execute the relinquishment deed afresh\r\nin favour of the second respondent if required.\r\nHowever, the second respondent without considering\r\nthe same has cancelled the sanctioned single layout\r\nplan granted in favour of the first petitioner and the\r\nsame is not sustainable, since no prejudice would be\r\ncaused to the second respondent when the second\r\npetitioner is willing to execute the relinquishment\r\ndeed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. It is also undisputed that there is no order\r\nof restraint passed against the petitioners in the\r\npending dispute between the parties and in absence of\r\nany order of restraint, the petitioners cannot be\r\ndeprived of the sanctioning of single layout plan and\r\nthe sanctioned layout plan is subject to the outcome\r\nof pending dispute between the parties.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> i. Writ petition is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '65a4bff48f466c0990c838dcf788f675.jpeg', 'a44feec677375292c0b8f199876799a4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-30', 1, '', '', '2022-09-29 17:24:03', '2022-09-30 10:18:56'),
(2249, 'iPmyEjO62jHJSYJMlhDobhicD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka SC-ST - PTCL Act. Delay of seven years in applying for restoration of the granted land without any explanation for the delay. Application is liable to be rejected. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Thippaiah Vs The Special Deputy Commissioner Bengaluru District and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 24438 of 2009 decided on 7 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">Old Survey No.57, New Survey No.209\r\nmeasuring 1 acre of land situated at Shingena\r\nAgrahara, Sarjapura, Anekal Taluk was granted in\r\nfavour of Venkatamma i.e. the mother of respondent\r\nNo.4 vide order dated 30.01.1982. The grantee\r\nconveyed the subject property in favour of respondent </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">No.5 through a registered Sale Deed dated\r\n16.11.1996 which was registered on 15.06.1998.\r\nDuring the interregnum, the permission was obtained\r\nunder Section 4 of the Karnataka Scheduled Castes\r\nand Scheduled Tribes (Prohibition of Transfer of\r\nCertain Lands) Act, 1978 (‘the Act’ for short) for\r\nconveying the property. Respondent No.5 inturn sold\r\nthe subject property in favour of the petitioner by\r\nexecuting a registered Sale Deed dated 15.03.2004.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. The mother of respondent No.4 filed a\r\npetition under Section 5 of the Act before respondent\r\nNo.2 in the year 2005. Respondent No.2, Assistant\r\nCommissioner by order dated 25.07.2007 rejected the\r\npetition filed by the mother of the respondent No.4.\r\nAgainst which, respondent No.4 filed an appeal under\r\nSection 5 of the Act before respondent No.1. The\r\nrespondent No.1 by order dated 03.07.2009 set-aside\r\nthe order passed by respondent No.2 and allowed the\r\napplication filed by the mother of respondent No.4 for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">resumption and restoration of the subject land.\r\nAgainst which, the present petition is filed.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. It is undisputed that the Sale Deed which\r\nwas executed in favour of respondent No.5 was\r\npresented before the Sub-registrar concerned on\r\n15.11.1996. The sale deed was not registered in view\r\nof the objection raised by the Sub-registrar stating\r\nthat the sale deed cannot be registered in the absence\r\nof permission granted by the Competent Authority\r\nunder Section 4 of the Act. Thereafter, on an\r\napplication submitted by respondent Nos.4 and 5\r\njointly, the Competent Authority passed an order\r\ngranting the permission to respondent No.4 to convey\r\nthe subject property in favour of respondent No.5.\r\nThereafter, the sale deed was registered in favour of\r\nrespondent No.5 on 15.06.1998. Respondent No.5\r\ninturn conveyed subject land in favour of the\r\npetitioner through a registered sale deed on\r\n15.03.2004. The mother of respondent No.4 filed an application under Section 5 of the Act for resumption\r\nand restoration of the subject land alleging that the\r\nsale deed executed in favour of respondent No.5 was\r\nin contravention of Section 4(2) of the Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. The Apex Court in the aforesaid case has\r\ncategorically held that any interest nor did the title will\r\npass upon the execution of such document, but it was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">only after the registration that the title shall pass to\r\nthe transferee.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. In the present case, the sale deed was\r\nexecuted on 16.11.1996 and in view of the objections\r\nraised by the Sub-Registrar concerned, the parties\r\napproached the competent authority seeking\r\npermission to convey the land as specified under\r\nSection 4 of the Act. After obtaining the permission,\r\nthe sale deed was registered in favour of respondent\r\nNo.5 on 15.06.1998.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 10. In view of the ratio enunciated by the\r\nHon’ble Apex Court in the case of ‘GHANSHYAM’\r\n(supra), it is held that the subject property was\r\nconveyed to respondent No.5 on 15.06.1998 and in\r\nview of the same, the sale deed which was registered\r\nin favour of respondent No.5 after obtaining\r\npermission cannot be held to be in contravention of\r\nSection 4(2) of the Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. In the present case, there was an\r\nunexplained delay of nearly 7 years in filing the\r\napplication and the respondent No.4 having sought\r\npermission to alienate the land in respect of\r\nrespondent No.5 was fully aware that the subject land <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was conveyed to respondent No.5 and thereafter filed\r\nthe application. Hence, in the absence of any\r\nplausible explanation for the delay in filing the\r\napplication nearly 7 years from the date of execution\r\nof sale deed, respondent No.4 is not entitled for the\r\nresumption and restoration of the subject land.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. For the aforesaid discussions, the\r\nimpugned order passed by the Deputy Commissioner\r\nconcerned, is not sustainable in law<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>ORDER:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>1. The writ petition is allowed. </b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '24c346f4750bea30846a8253bf2e180c.jpeg', '4204fea1acf9b6b3bcc7a9bb9b7805b6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-30', 1, '', '', '2022-09-29 17:48:24', '2022-09-30 12:57:21');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2250, 'ZV9puTxElmo0VJIVliPcS659J', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mining irregularities. Karnataka High Court upholds discharge of the accused involved in alleged illegal mining. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>State Vs Ritesh Milapchand Jain<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 1475 of 2016 decided on 23 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Somashekar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The factual matrix of the petitions are as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>It transpires that pursuant to the order dated 23rd\r\nSeptember 2011 passed by the Hon’ble Apex Court in\r\nSpecial Leave to Appeal (Civil) No.7366-7367/2010, the\r\npetitioner/CBI (ACB), Bengaluru registered a criminal\r\ncase in R.C.No.19(A)/2011 on 01.10.2011 against the\r\nDirector of M/s. Deccan Mining Syndicate Pvt. Ltd., (A-2),\r\nunknown officials of M/s. National Mineral Development\r\nCorporation Limited (hereinafter referred to as ‘NMDC’ for\r\nShort) and unknown public servants & others for the\r\noffences under Sections 120B, 379, 411, 420, 427, 444,\r\n468, 447 of IPC, Sec. 13(1)(d) r/w Sec. 13(2) of Prevention\r\nof Corruption Act, 1988, Sec. 26 of Indian Forest Act, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1927, Sec. 21 r/w Sec. 4(1), 4(1)(A) & Sec. 23 of Mines and\r\nMinerals (Development & Regulation) Act, 1957 in respect\r\nof illegal mining for the period from 1994 till the date of\r\nfiling of the FIR.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>109. It is in the nutshell of the submission made by\r\nlearned Senior counsel for accused Nos.1 to 4 and also\r\nlearned counsel for accused Nos.5, 6 and 7 in Spl.CC.\r\nNo.165/2013 arising out R.C.No.19(A)/2011, initiated by\r\nthe complainant – CBI/ACB, Bangalore against Accused\r\nNo.1 – Rajendra Kumar Jain, Accused No.2 – M/s.Deccan\r\nMining Syndicate Pvt. Ltd represented by its Managing\r\nDirector, Rajendra Kumar Jain, Accused No.3 – Ritesh\r\nMilapchand Jain filed applications I.A.No.13 and\r\nI.A.No.14 respectively, under Section 239 of Cr.P.C.\r\nrelating to the offence punishable under Sections 120-B\r\nr/w 379, 420, 427 and 447 of IPC and under Sections\r\n13(1)(d) of the P.C.Act, 1988. Whereas learned Senior\r\ncounsel Sri Hasmath Pasha has taken through the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">materials collected by the investigating agency during the\r\ncourse of investigation and role of accused Nos.1 to 3\r\nand similarly, learned Senior counsel Sri Uday Holla for\r\nAccused No.4 and learned counsel for Accused Nos.5 to 7\r\nbeing public servants.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">110. With regard to the contention taken by the\r\nlearned counsel respectively it is relevant to refer the\r\noffence under Section 120-B of IPC. It is the settled\r\nposition of law in order to attract the offence of\r\nconspiracy, two or more persons agreed to do an act\r\nwhich is illegal by illegal means or an act which is legal\r\nby illegal means. Since no illegality is committed either\r\nby the Company or by accused No.3 and only because\r\ncertain procedural delay in issue of permits, which\r\nnormally occurs in discharge of official duties cannot be\r\nconsidered as a product of conspiracy. Therefore, offence\r\nalleged under Section 120-B of IPC is not attracted. Even\r\nwith regard to offences under Sections 379, 420, 427 and\r\n447 of IPC, accused No.3 is totally innocent of the alleged offence. But there was no theft of iron ore material and\r\nthe entire iron ore material was produced from the\r\nleasehold area of M/s.DMSPL and since mining operation\r\nwas done in the demarcated mining area of M/s.DMPSL\r\noffence of trespass under Section 447 of IPC and offence\r\nof mischief under Section 427 of IPC and offence of\r\ncheating under Section 420 of IPC does not attract.\r\nTherefore, there is no material to frame charge against\r\naccused No.3. It is also relevant to notice that accused\r\nNo.2 company has not at all committed any offence and it\r\nis also entitled for discharge and if the company has not\r\ninvolved in the commission of any offence, accused No.3\r\nis no way liable for any offence in any manner and hence,\r\nat this stage itself entitled for discharge from the\r\nproceedings. Further, insofar as, accused No.3 is\r\nconcerned, he joined the service only in 2003-2004 and\r\nhe joined company of Accused No.2 as Manager,\r\nsubsequently, he was promoted as General Manager and\r\nhe served in that capacity till 2011. In order to attribute\r\ncase against accused No.3, being representative of\r\nAccused No.2, prosecution must show that accused No.3 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was in actual business and in control of accused No.2\r\nCompany as according to Section 23 of the MMDR Act.\r\nTherefore, in view of the above said provision, accused\r\nNo.3 being the General Manager of accused No.2\r\nCompany from 2004-2011 does not in any way comes\r\nwithin the purview of person continued business of\r\nAccused No.2 and as such the trial Court has rightly held\r\nthat the prosecution case as alleged against accused No.3\r\nis not at all sustainable.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>114. In the above background, the factual matrix to\r\nbe noticed are that on 19-05-1966 the Government leased\r\n50 acres of land in Kammatharu Village, Kumaraswamy\r\nRange, Sandur Taluk, Bellary District in favour of M/s\r\nM.J. Boal for extracting iron ore for a period of 20 years in\r\nterms of the provision contained under the MM (D and R\r\nAct). During the subsistence of the same, it was\r\ntransferred in the year 1980 in favour of DMS with the\r\nconcurrence of the Government. Out of the said 50 acres,\r\nthree acres of forest land was given up and the extent\r\nretained was 47 acres. Though the initial period was 20\r\nyears and subsequent renewal was to be for 20 years, the\r\nsame was done in two installments, the second of which\r\nwas with effect from 20.5.1996. The said mining lease is\r\nnumbered as 2080 and 2080A. Thereafter the same is\r\nrenewed for a period of 20 years with effect from 20-5-\r\n2006. This lease in favour of DMS was the one questioned\r\nby NMDC. The other mining lease is in M.L.No.1111 in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">favour of NMDC which was granted on 18.10.1972 for a\r\nperiod of 30 years. The extent of land leased is 1600\r\nacres mainly in Sandur State Forest which is in\r\nKumaraswamy and Subbarayanahalli Ranges. Though\r\nthe said land was leased in the year 1972, admittedly the\r\nNMDC started mining operations only in the year 1991.\r\nThough two different extents of 47 acres and 1600 acres\r\nof land are leased to DMS and NMDC respectively, the\r\ndispute really is that NMDC contends that the extent of 47\r\nacres is encircled by the land leased to them while DMS\r\ncontends that the said 47 acres is one of the southern\r\nboundaries for the area leased to NMDC and does not\r\nencircle the same. DMS further contends that the extent\r\nof 1600 acres of NMDC stops short of the area leased to\r\nthem and as such an extent of 188 acres of Government\r\nrevenue land which surrounds the said 47 acres leased to\r\nthem is available for grant of lease and as such DMS has\r\napplied for the same. In this scenario, the grievance of\r\nNMDC is also that DMS have mined outside the original\r\nextent of 47 acres leased to them and while renewing the\r\nlease, that mined extent is treated as the 47 acres of DMS </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by shifting the same and as such according to NMDC\r\nwhat is renewed is a portion of the land leased to them.\r\nTherefore, renewal of lease in favour of DMS is questioned\r\non all grounds. On the other hand, DMS has questioned\r\nthe entire renewal in favour of NMDC since the claim of\r\nNMDC that the lease granted earlier and renewal would\r\nencircle the extent of 47 acres would effect their interest.\r\nThe consideration of the factual aspect of encircling or\r\notherwise would reduce the intensity of the challenge on\r\nother aspects.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>116. But, in the instant case, the attached plan is\r\npurportedly drawn for the area of 1600 acres and the\r\nboundaries are shown and obviously while surveying, the\r\ntri-junction point should have started from M/s. SM & IO\r\nand Harishankar temple since the Southern boundary in\r\nthe agreement was indicated as SM & IO, M.K.\r\nNarayanachar, V.S. Lad and M.L. of M/s M.J. Boal was\r\nalso shown as one of the boundaries and therefore the\r\nextent of 1600 acres must have been marked within that\r\narea. But, despite showing the said boundaries in the\r\nmap and the extent leased being 1600 acres, admittedly,\r\neven as per NMDC even though they claim beyond the\r\narea of DMS, the area enclosed therein was 1705 acres\r\nwhich itself indicates that the map cannot be relied on as <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">being accurate. Even though NMDC have thereafter relied\r\non the revised map after excluding 105 acres on the\r\nwestern side, the same is made on 8.7.1992 in respect of\r\na lease of 18.10.1972 and by such time already a decade\r\nhad passed after DMS had made its application on\r\n2.12.1981 seeking for lease of the land surrounding its 47\r\nacres.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>117. In this regard, the main aspect which is to be\r\nnoticed at the outset is that as per the admitted case of\r\nNMDC itself, it is not the surrender of any portion of the\r\nleased area of 1600 acres, but it is the excess land over\r\nthe area of 1600 acres. Therefore, the sketch indicating\r\nthe boundaries to an area which was more than the extent\r\nleased was not only defective, but if that area which was\r\nfound to be excessive was to be reduced, the choice of\r\neither the location or the extent could not have been at\r\nthe option of NMDC. Though Rule 29 of the MC Rules\r\nprovides the manner of surrender to be made and even\r\nthough the option of the area to be surrendered is\r\navailable to lesseee for the reasons stated therein that is a\r\nsituation wherein the leased area is surrendered and even <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in such event the state Government should permit such\r\nsurrender. In the instant case, when the Senior Geologist\r\nnoticed excess land, the proper procedure to bring the\r\nsketch in conformity with the lease should have been\r\nfollowed by making appropriate orders, instead NMDC has\r\nwritten letters surrendering the area at its convenience\r\nbut the further procedure has not been effected by the\r\nState Government. But the Additional Director (Mines) by\r\nletter dated 8.7.1992 has accepted the change and\r\nenclosed plan by stating it as per Rule 27(1)(g) of MC\r\nRules which provides for the demarcation in the plan\r\nannexed to the lease. The said plan dated 8.7.1992 would\r\nindicate deletion of a portion to detach the area from M.L.\r\narea of SM & IO and Hari Shankar temple on the western\r\nportion and in the key to the boundaries written in the\r\nmap and to describe the eastern boundary an insertion is\r\nmade which is not even legible. But the resultant effect of\r\nsuch alteration of the sketch alone would be that even\r\nthough the said alteration is made in the sketch, the\r\nboundaries indicated in indenture of lease continued to be\r\nthe same and as such the western boundary has </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">remained unaltered as M.L. area of SM & IO and Hari\r\nShankar Temple when it would not be so if a portion is\r\nsurrendered as claimed. That being the position, the said\r\nchange could have been done only by the State\r\nGovernment by making the said change in the same\r\nmanner and procedure adapted while granting the lease\r\nand at least at the stage of renewal, the procedure was\r\nrequired to be followed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>125. In the instant case, it is necessary to examine\r\n+the scope of such exercise made by the Special Judge\r\nand even under Section 227 of Cr.P.C. part of Chapter 18\r\nwhich applies to trial before the sessions court. But in\r\nthe instant case, the Special Judge is of the rank of\r\nDistrict and Sessions Judge. Discharge - If upon\r\nconsideration of the record of the case and the\r\ndocuments submitted therewith, and after hearing the\r\nsubmissions of the accused and the prosecution in this\r\nbehalf, the Judge considers that there is no sufficient\r\nground for proceeding against the accused, he shall\r\ndischarge the accused and record his reasons for so\r\ndoing. The language of Sections 239 and 227 are\r\ndifferent. The scope of power exercisable to grant\r\ndischarge under Section 227 is less compared to the\r\npower of discharge conferred on the Magistrate under <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 239. But in the instant case, the Magisterial\r\npower is conferred to the Special Judge being rank of\r\nDistrict and Sessions Judge. It is for this reason Sessions\r\nJudge is required to examine only the record of the case\r\nand documents submitted therewith for ascertainment as\r\nto whether a case is made out for framing charge or\r\ndischarge. But under Section 239, the requirement is\r\ndifferent. It envisages \' If upon consideration the police\r\nreport i.e., CBI report and the documents sent with it\r\nunder Section 173 and making such examination, if any,\r\nof the accused as the Magistrate thinks necessary and\r\nafter giving the prosecution and the accused an\r\nopportunity of being heard, the Magistrate considers the\r\ncharge against the accused to be groundless, he shall\r\ndischarge the accused, and record his reasons for so\r\ndoing.\' But in the instant case, the applications filed by\r\nAccused Nos.1 to 7 were allowed by considering all oral\r\nand material documents secured by the investigating\r\nagency by laying the charge sheet as against the accused\r\nas contemplated under Section 173(2) of Cr.P.C.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>127. But in the instant case, the charge sheet is\r\nlaid by the investigating agency – CBI/ACB under Section\r\n173(2) of Cr.P.C. Mere because of laying of charge sheet\r\nagainst the accused by the investigating agency for the\r\noffences which lugged in the charge sheet, but the\r\naccused are having right of recourse to file an application\r\nunder Section 239/227 of Cr.P.C. seeking discharge if\r\nthere are no sufficient evidence or materials secured by\r\nthe IO to framing of a charge. If there are no strong <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">materials find place in the charge sheet case, then the\r\ntrial Judge has to apply its mind to consider the\r\napplication filed by the accused seeking discharge. But\r\nin the instant case, Accused Nos.1 to 7 have filed\r\napplications under Section 227/239 of Cr.P.C. seeking\r\ndischarge. Subsequent to filing of applications, the\r\nSpecial Public Prosecutor has filed objections to the said\r\napplications in detail by referring the statement of\r\nwitnesses and so also referring the material documents\r\nsecured by the IO and ultimately accepting the\r\narguments of learned counsel for Accused Nos.1 to 7\r\nallowed the applications seeking discharge. Therefore, the\r\nXLVI Additional City Civil and Sessions Judge and\r\nSpecial Judge for CBI Case, Bangalore has rightly come\r\nto the conclusion that there are no sufficient\r\nmaterials/evidence against the accused persons to\r\nproceed in further for framing of charge and\r\nconsequently, they were discharged from the case.\r\nTherefore, in these petitions, there are no merits or\r\notherwise to say there is no substance to call for\r\ninterference of this Court and no warranting </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">circumstances has arised for intervention of the\r\nimpugned order passed by the trial court in\r\nSpl.C.C.No.165/2013 dated 30.01.2016.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Criminal Revision Petitions filed by the\r\nPetitioner – CBI/ACB, Bengaluru under Sections 397\r\nr/w 401 of Cr.P.C. are hereby rejected. </b></p>', '71e8689d4ad5f39b0651a69d44563a97.JPG', '47f9119b10287052c1970f9a24d1a51f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-01', 1, '', '', '2022-09-30 16:47:09', '2022-10-01 12:55:33'),
(2251, 'YrnKn7VdWvQFhElFTgQPvAMzs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Issue of limitation can be framed and determined as a preliminary issue under Order XIV, Rule 2(2)(b), CPC in a case where it can be decided on admitted facts. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sukhbiri Devi and others Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 10834 of 2010 decided on 29 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ajay Rastogi and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This appeal by Special Leave is directed against\r\nthe judgment and order in RSA No.79/2007 dated\r\n25.08.2009 passed by the High Court of Delhi. The\r\nappellants were plaintiffs in Suit No.410 of 2000 on\r\nthe file of the Court presided over by Shri Vidya\r\nPrakash, Civil Judge, Delhi, (hereinafter referred to\r\nas ‘the Trial Court’), filed seeking reliefs mainly\r\nagainst the 5th Respondent. The Trial Court framed a\r\npreliminary issue on the question of limitation,\r\nevidently, upon forming the opinion that case may be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">disposed of on an issue of law and that it warrants\r\npostponement of settlement of other issues until\r\nafter that issue has been determined and to deal with\r\nthe suit in accordance with the decision on that\r\nissue. Accordingly, the Trial Court framed a\r\npreliminary question as to “whether the Suit is\r\nwithin the limitation”. Upon answering the same in\r\nthe negative, in accordance with the said decision,\r\nthe suit was dismissed as per judgment dated\r\n13.05.2005. The defendants challenged the said\r\njudgment and decree before the Court presided over by\r\nShri Sukhdev Singh, Additional District Judge, Delhi,\r\n(hereinafter referred to as the ‘First Appellate\r\nCourt’) in Civil Appeal No.99/2005 and it dismissed\r\nthe appeal and confirmed the judgment and decree of\r\nthe Trial Court, as per judgment dated 08.12.2006.\r\nThereupon, they took up the matter in second appeal\r\nbefore the High Court. As per the impugned judgment\r\ndated 25.08.2009 the High Court concurred with the\r\nfindings and dismissed the appeal answering the\r\nquestion of law against the appellants. Leave was\r\ngranted in Special Leave Petition No.34648 of 2009 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">filed against the stated judgment of the High Court\r\nand in this civil appeal, the respondents were\r\ngranted liberty to file counter affidavits.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Based on the impugned judgment, the rival\r\npleadings and the arguments advanced before us,\r\nfollowing substantial questions call for\r\nconsideration:-\r\n(a) Whether the issue of limitation can be\r\ndetermined as a preliminary issue under Order XIV,\r\nRule 2(2) of the Code of Civil Procedure (for short\r\n‘CPC’)?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(b) Whether a larger period of limitation of 12\r\nyears would be available to the plaintiffs to bring in\r\na suit by virtue of application of Article 136 of the\r\nLimitation Act, 1968 (for short ‘The Act’), as\r\ncontended by the appellant and in the facts and\r\ncircumstances obtained in this case?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(c) Whether Article 17 or Article 65 of the Act\r\ngot any application, as contended by the appellants,\r\nin view of the plaint averments, in case Article 136\r\nof the Act is found inapplicable?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. Now, we will consider the first question:\r\n‘whether the issue of limitation can be determined as\r\na preliminary issue under Order XIV, Rule 2, CPC’. It\r\nis no longer res integra. In the decision in Mongin\r\nRealty and Build Well Private Limited vs. Manik\r\nSethi7\r\n, even while holding that the course of action\r\nfollowed by the learned Trial Judge of directing the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">parties to address arguments on the issue of\r\nlimitation as irregular since it being a case where\r\nadduction of evidence was required, a two-Judge Bench\r\nof this Court referred to a three-Judge Bench decision\r\nof this Court in Nusli Neville Wadia Vs. Ivory\r\nProperties8 observing that the issue therein was\r\nwhether the issue of limitation could be determined as\r\na preliminary issue under Order XIV, Rule 2, CPC.\r\nAfter taking note of the fact that going by the\r\ndecision in Nusli Neville Wadia’s case8\r\n, in a case\r\nwhere question of limitation could be decided based on\r\nadmitted facts it could be decided as a preliminary\r\nissue under Order XIV, Rule 2(2)(b), CPC., the twoJudge Bench held that in the case before their\r\nLordships the question of limitation could not have\r\nbeen decided as a preliminary issue under Order XIV,\r\nRule 2 of CPC as determination of the issue of\r\nlimitation in that case was not a pure question of\r\nlaw. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. We referred to the said provisions and decisions\r\nonly to stress upon the point that the appellants\r\ncannot legally have any dispute or grievance in taking\r\ntheir statements in the plaint capable of determining\r\nthe starting point of limitation for the purpose of\r\napplication of Order XIV, Rule 2(2)(b) of the CPC.\r\nThough, limitation is a mixed question of law and\r\nfacts it will shed the said character and would get\r\nconfined to one of question of law when the\r\nfoundational fact(s), determining the starting point\r\nof limitation is vividly and specifically made in the\r\nplaint averments. In such a circumstance, if the\r\nCourt concerned is of the opinion that limitation\r\ncould be framed as a preliminary point and it warrants\r\npostponement of settlement of other issues till <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">determination of that issue, it may frame the same as\r\na preliminary issue and may deal with the suit only in\r\naccordance with the decision on that issue. It cannot\r\nbe said that such an approach is impermissible in law\r\nand in fact, it is perfectly permissible under Order\r\nXIV, Rule 2(2)(b), CPC and legal in such\r\ncircumstances. In short, in view of the decisions and\r\nthe provisions, referred above, it is clear that the\r\nissue limitation can be framed and determined as a\r\npreliminary issue under Order XIV, Rule 2(2)(b), CPC\r\nin a case where it can be decided on admitted facts.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. In the instant such a stage for application of\r\nArticle 136 of the Limitation Act had not reached\r\nand, in troth, the question involved is relatable\r\nonly to the time restriction for initiating legal\r\nproceedings to seek the alleged legal right. In the\r\nsaid circumstances, the inevitable conclusion can\r\nonly be that Article 136 got no application in the\r\ncase on hand and as such the Appellants could not\r\nclaim for a larger period of limitation of 12 years.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. The challenge against the impugned judgment of\r\nthe High Court is that it wrongly applied Article 58\r\nof the Limitation Act while confirming the concurrent\r\ndecisions of the First Appellate Court and the Trial\r\nCourt. In this context, it is relevant to note the\r\nprayers made in the suit by the plaintiffs which were\r\nextracted hereinbefore. Undoubtedly, the plaintiffs\r\nsought for declarations in the manner referred above\r\nand thereby, made the nature of the suit as\r\ndeclaratory. This position is indisputable. It is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">true that the Trial Court though found the period of\r\nlimitation as three years taking into account the\r\nnature of the reliefs it did not specifically mention\r\nthe relevant provision in its judgment. There can be\r\nlittle doubt with respect to the position that\r\nmisquoting or non-quoting of a provision by itself\r\nwill not make an order bad so long as the relevant\r\nenabling provision is in existence and it was\r\ncorrectly applied though without specifically\r\nmentioning it. The High Court had only referred to\r\nthe relevant, applicable provision under the\r\nLimitation Act upon considering the nature of the\r\nsuit and the reliefs sought for, in the plaint. We do\r\nnot find any perversity or illegality in the finding\r\nof the High Court for sustaining the concurrent\r\nfindings with respect to the issue whether the suit\r\nwas barred by limitation.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. The relief sought for, in suit No.410/2000 would\r\nreveal that the first prayer, which is the main\r\nprayer, is declaratory in nature. Even according to\r\nthe plaintiffs, as revealed from the plaint the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">second prayer (extracted hereinbefore) is only\r\nconsequential relief. A perusal of the same would\r\nundoubtedly show that it is consequential and not an\r\nindependent one and therefore the courts below are\r\nright in holding that the said prayer is grantable\r\nonly if the first prayer is granted. In this case\r\nbased on the determination on the preliminary issue\r\nof limitation and in accordance with the decision on\r\nthat preliminary issue the suit was dismissed. As\r\nheld by the three-judge Bench in the decision in\r\nNusli Neville Wadia’s case (supra) the provisions\r\nunder Order XIV Rule 2(1) and Rule 2(2)(b) permit to\r\ndeal with and dispose of a suit in accordance with\r\nthe decision on the preliminary issue. In the case on\r\nhand in view of the nature of the finding on the\r\npreliminary issue and the consequential consideration\r\nof the suit in terms of Order XIV Rule 2(2)(b) and\r\ntaking note of the fact that the suit do not survive\r\nafter such consideration we find no reason to\r\nconsider the contention of the appellants with\r\nreference to Order VII Rule 11 based on the decisions\r\nrelied on by them and referred hereinbefore. So also, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the contentions of the appellants based on Articles\r\n17 and 65 also would pale into insignificance and\r\nwarrant no consideration at all, in the\r\ncircumstances.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. The upshot of the above discussion is that there\r\nis absolutely no perversity or illegality in the\r\nconcurrent findings of the courts below warranting\r\ninterference in invocation of the power under Article\r\n136 of the Constitution of India. In the result, the\r\nappeal stands dismissed with costs.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. All pending applications are disposed of. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9f4fd0d5ee3311993c0c6cfff32aa669.jpeg', '47fa713932b68269bf7b50635e34ec1a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-01', 1, '', '', '2022-09-30 17:12:29', '2022-10-01 09:22:34'),
(2252, 'bM5LWrU9PsK9X9cNOBFj38WCM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Test Electricty ?', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/s. Jindal Steel and Power Limited Vs The Chhattisgarh State Electricity Regulatory Commission and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3607-3610 of 2008 decided on 29 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ajay Rastogi and Justice B.V. Naragathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. These Civil Appeals filed under Section 125 of the Electricity Act, 2003 arise out of common impugned Judgment dated 07.05.2008 passed by the Appellate Tribunal for Electricity, New Delhi (‘Appellate Tribunal’, for short). By the said judgment, the Appellate Tribunal has set aside the order of respondent No.1 dated 29.11.2005 and cancelled the distribution licence granted to the appellant in C.A. Nos.3607­3610 of 2008. Hence, these appeals.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>26. Having heard learned senior counsel and counsel for the respective parties, it is noted that the appellants in both the appeals are challenging the order dated 07.05.2008 whereby the Appellate Tribunal allowed the appeals filed by the respondents herein and setaside the order passed by the Commission dated 29.05.2005, thereby, canceling the distribution licence granted in favour of the appellant for supply of power by the appellant from its captive power plant to the industrial units in Jindal Industrial Park</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>32. On a reading of Section 14 of the 2003 Act, it is clear that the appropriate Commission may, on an application made to it under Section 15 grant a licence to any person</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(a) to transmit electricity as a transmission licensee; or</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(b) to distribute electricity as a distribution licensee; or</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(c) to undertake trading in electricity as an electricity trader, in any area as may be specified in the licence</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>33. The first three provisos to Section 14 of the 2003 Act are in the nature of saving clauses. The fourth and fifth provisions are not relevant to these cases. The sixth proviso which is under consideration states that the appropriate Commission may grant a licence to two or more persons for distribution of electricity through their own distribution system within the same area, subject to the conditions that the applicant for grant of licence within the same area, shall, without prejudice to the other conditions or requirement under the Act comply with the additional requirements relating to the capital adequacy, creditworthiness, or code of conduct as may be prescribed by the Central Government, and no such applicant, who complies with all the requirements for grant of licence, shall be refused grant of licence on the ground that there already exists a licensee in the same area for the same purpose.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>35. The controversy in these cases surrounds the interpretation to be given to the Explanation to Rule 3. As already noted, the 2005 Rules, under consideration have been prescribed having regard to the sixth proviso to Section 14 of the Act. The said proviso would apply only when the appropriate Commission considers it necessary to grant a licence to two or more persons for distribution of electricity through their own distribution system within the same area, in which case, there are certain additional requirements which the applicant must fulfil relating to capital adequacy, creditworthiness or code of conduct. It is only with regard to the aforesaid three aspects that the 2005 Rules have been prescribed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>40. Thus, on a conjoint reading of the aforesaid provisions, it is clear that the ‘minimum area of supply” would fall ‘within the area’ which is comprising of a Municipal Council or a Municipal Corporation or a Revenue District but it does not imply that the licence to supply electricity for an area or an ‘area of supply which is the ‘minimum area of supply’ must extend to the ‘entire area falling within’ a Municipal Council or a Municipal Corporation or a Revenue District.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>41. But if the interpretation as suggested by the respondent No.2 is to be accepted, then the expression ‘area falling within’ in the Explanation would become otiose or redundant. The object of providing a Municipal Council or a Municipal Corporation or a Revenue District as an area is to provide a standard area, within which area, two or more persons could distribute electricity. It does not mean that the licensee must distribute electricity in the entire standard area. The words used are ‘the area falling within’ a Municipal Council or a Municipal Corporation or a Revenue District. The same does not mean that the area comprising of or an area equivalent to a Municipal Council or a Municipal Corporation or a Revenue District. It is only in an ‘area falling within’ a Municipal Council or a Municipal Corporation or a Revenue District that two or more persons could be granted licence for distribution of electricity which interpretation is supported by the use of the expressions ‘within the same area’ used twice in the sixth proviso to Section 14 of the 2003 Act. Also, the use of the expression ‘within the same area’ in the sixth proviso as well as in the Explanation to Rule 3 have to carry the same meaning.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>43. Hence, the contention of respondent No.2 that the ‘minimum area of supply’ must comprise of the ‘entire’ Municipal Council or a Municipal Corporation or a Revenue District is not correct. The argument in the instant case is that the appellant­JSPL, not complying with the prescription in Explanation to Rule 3 of the 2005 Rules as per the terms of the licence cannot be permitted to supply electricity and therefore, the licence was rightly cancelled by the Appellate Tribunal also cannot be accepted</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>44. On the other hand, on a reading of the licence granted to the appellant, it is clear that the respondent No.1 was conscious of the fact that it was granting licence to the appellant­JSPL having regard to the fact that the said appellant had established an industrial park for which it had the responsibility for distribution of electricity and in addition, two more villages were added to the area comprised in the industrial park for the purpose of distribution of electricity. The area in respect of which the licence was granted and thereby authorisation provided to supply electricity is the minimum area of supply. The ‘area of supply’ is ‘an area falling within’ a Municipal Council or a Municipal Corporation or a Revenue District and in the instant case, it is a Revenue District. Since, the ‘area of supply’ authorised in the licence granted to the appellant­JSPL in the instant case is the ‘minimum area of supply’, the said appellant is bound to supply electricity in the said area of supply. The licensee cannot resile from the condition of supplying electricity as per the authorisation of the area of supply indicated in the license. This would also mean that the licensee cannot supply electricity in an area beyond the area of supply authorised under the license. This is because in respect of an area falling within a Municipal Council or a Municipal Corporation or a Revenue District, there could be two or more persons who could be granted licence and authorisation to distribute electricity in terms of the respective area of supply specified.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>45. In view of the aforesaid interpretation, we find no substance in the contentions advanced on behalf of the respondent No.2. On the other hand, on a reading of the order passed by the respondent No.1­ Commission in C.A. Nos. 3607­3610 of 2008, we find that there has been an application of mind to the licence that was granted to the appellant for distribution of the electricity.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>46. In view of the aforesaid discussion, we find that the Appellate Tribunal was not right in cancelling/setting aside the licence granted to the appellant­JSPL and hence, the impugned judgment is liable to be set aside.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>47. In the result, the appeals are allowed and the impugned common judgment of the Appellate Tribunal is hereby set aside.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>48. Consequently, pending applications stand disposed by reserving liberty to the applicants seeking impleadment to seek remedies in accordance with law, if so advised.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>49. Parties to bear their respective costs. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '11b835d92213b4aac9be0eae932d4495.jpeg', '0f47381b632ac1dfbeea47157ed8b03d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-09-30', 0, '', '', '2022-09-30 17:27:33', '2022-10-01 01:02:08');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2253, 'SLlFsTbsq1S5GxmIHQZAczYNc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Unmarried women have right to access safe and legal abortions if they face a change in their material circumstances, similar to married women. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>X Vs The Principal Secretary Health and Family Welfare Department, Govt of NCT of Delhi and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5802 of 2022 decided on 29 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dhananjaya Y Chandrachud, Justice A.S. Bopanna and Justice J.B. Pardiwala.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. This appeal arises out of the judgment of a Division Bench of the High Court\r\nof Delhi dated 15 July 2022. The appellant invoked the writ jurisdiction of the\r\nHigh Court seeking its permission to terminate her pregnancy before the\r\ncompletion of twenty-four weeks on 15 July 2022. Other ancillary reliefs were\r\nsought.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The appellant sought permission to terminate her pregnancy in terms of\r\nSection 3(2)(b) of the Medical Termination of Pregnancy Act 19712 and Rule 3B(c)\r\nof the Medical Termination of Pregnancy Rules 20033 (as amended on 12 October\r\n2021). The appellant instituted a Criminal Miscellaneous Application4 for grant of\r\ninterim relief to terminate her pregnancy during the pendency of the Writ Petition.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>116. In the context of abortion, the right to dignity entails recognising the\r\ncompetence and authority of every woman to take reproductive decisions,\r\nincluding the decision to terminate the pregnancy. Although human dignity inheres\r\nin every individual, it is susceptible to violation by external conditions and treatment\r\nimposed by the state. The right of every woman to make reproductive choices\r\nwithout undue interference from the state is central to the idea of human dignity.\r\nDeprivation of access to reproductive healthcare or emotional and physical wellbeing also injures the dignity of women.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>118. It seems to us that to give Rule 3B a restrictive and narrow interpretation\r\nwould render it perilously close to holding it unconstitutional, for it would deprive\r\nunmarried women of the right to access safe and legal abortions between twenty\r\nand twenty-four weeks if they face a change in their material circumstances, similar\r\nto married women.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">121. The object of Section 3(2)(b) of the MTP Act read with Rule 3B is to provide\r\nfor abortions between twenty and twenty-four weeks, rendered unwanted due to a\r\nchange in the material circumstances of women. In view of the object, there is no\r\nrationale for excluding unmarried or single women (who face a change in their\r\nmaterial circumstances) from the ambit of Rule 3B. A narrow interpretation of Rule\r\n3B, limited only to married women, would render the provision discriminatory\r\ntowards unmarried women and violative of Article 14 of the Constitution. Article 14\r\nrequires the state to refrain from denying to any person equality before the law or\r\nequal protection of laws. Prohibiting unmarried or single pregnant women (whose\r\npregnancies are between twenty and twenty-four weeks) from accessing abortion\r\nwhile allowing married women to access them during the same period would fall\r\nfoul of the spirit guiding Article 14. The law should not decide the beneficiaries of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">a statute based on narrow patriarchal principles about what constitutes\r\n“permissible sex”, which create invidious classifications and excludes groups\r\nbased on their personal circumstances. The rights of reproductive autonomy,\r\ndignity, and privacy under Article 21 give an unmarried woman the right of choice\r\non whether or not to bear a child, on a similar footing of a married woman.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">122. In view of the purposive interpretation accorded to Rule 3B, we are not\r\nrequired to adjudicate upon its constitutional validity.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">133. In Devika Biswas v. Union of India,\r\n114 the petitioners challenged the mass\r\nsterilisation program that was implemented by the government in highly unsanitary\r\nconditions. This Court recognized the need to respect and protect different facets\r\nof reproductive health as delineated in international human rights law. It noted that\r\ngovernment policies affecting reproductive freedoms must be aimed at remedying\r\nthe systemic discrimination prevailing in society and ensuring substantive equality.\r\nIn Paschim Banga Khet Mazdoor Samiti v. State of West Bengal,\r\n115 this Court\r\nobserved that Article 21 imposes an obligation on the state to safeguard the right\r\nto health and the right to life of every person. It was held that this constitutional\r\nobligation exhorts the state to provide adequate medical services to the people and\r\nto ensure timely medical treatment to everyone. The above conspectus of cases </span><span style=\"font-size: 12pt;\">reveals that the state has a positive obligation under Article 21 to protect the right\r\nto health, and particularly reproductive health of individuals. In terms of\r\nreproductive rights and autonomy, the state has to undertake active steps to help\r\nincrease access to healthcare (including reproductive healthcare such as\r\nabortion).\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>134. The state must ensure that information regarding reproduction and safe\r\nsexual practices is disseminated to all parts of the population. Further, it must see\r\nto it that all segments of society are able to access contraceptives to avoid\r\nunintended pregnancies and plan their families. Medical facilities and RMPs must\r\nbe present in each district and must be affordable to all. The government must\r\nensure that RMPs treat all patients equally and sensitively. Treatment must not be\r\ndenied on the basis of one’s caste or due to other social or economic factors. It is\r\nonly when these recommendations become a reality that we can say that the right\r\nto bodily autonomy and the right to dignity are capable of being realized.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>135. We clarify that nothing in this judgment must be construed as diluting the\r\nprovisions of the Pre-Conception and Pre-Natal Diagnostic Techniques\r\n(Prohibition of Sex Selection) Act 1994. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>136. We dispose of the present appeal in terms of the reasons stated above. The\r\nwrit petition before the High Court shall accordingly stand disposed of.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>137. Pending applications, if any, stand disposed of.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1da5d202ebc1b929f2144cf6274c0a7f.JPG', '19bddfc823cd87d625fd18228867883d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-03', 1, '', '', '2022-09-30 17:41:37', '2022-10-03 08:12:57'),
(2254, 'aISaX1xgto5GR4Nqz2DZOFOr0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\"Transformative constitutionalism promotes and engenders societal change by ensuring that every individual is capable of enjoying the life and liberties guaranteed under the Constitution\". Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">X Vs The Principal Secretary Health and Family Welfare Department, Govt of NCT of Delhi and another.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 5802 of 2022 decided on 29 September 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Dhananjaya Y Chandrachud, Justice A.S. Bopanna and Justice J.B. Pardiwala.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. This appeal arises out of the judgment of a Division Bench of the High Court of Delhi dated 15 July 2022. The appellant invoked the writ jurisdiction of the High Court seeking its permission to terminate her pregnancy before the completion of twenty-four weeks on 15 July 2022. Other ancillary reliefs were sought.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">4. The appellant sought permission to terminate her pregnancy in terms of Section 3(2)(b) of the Medical Termination of Pregnancy Act 19712 and Rule 3B(c) of the Medical Termination of Pregnancy Rules 20033 (as amended on 12 October 2021). The appellant instituted a Criminal Miscellaneous Application4 for grant of interim relief to terminate her pregnancy during the pendency of the Writ Petition.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">116. In the context of abortion, the right to dignity entails recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate the pregnancy. Although human dignity inheres in every individual, it is susceptible to violation by external conditions and treatment imposed by the state. The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical wellbeing also injures the dignity of women.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">118. It seems to us that to give Rule 3B a restrictive and narrow interpretation would render it perilously close to holding it unconstitutional, for it would deprive unmarried women of the right to access safe and legal abortions between twenty and twenty-four weeks if they face a change in their material circumstances, similar to married women.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">121. The object of Section 3(2)(b) of the MTP Act read with Rule 3B is to provide for abortions between twenty and twenty-four weeks, rendered unwanted due to a change in the material circumstances of women. In view of the object, there is no rationale for excluding unmarried or single women (who face a change in their material circumstances) from the ambit of Rule 3B. A narrow interpretation of Rule 3B, limited only to married women, would render the provision discriminatory towards unmarried women and violative of Article 14 of the Constitution. Article 14 requires the state to refrain from denying to any person equality before the law or equal protection of laws. Prohibiting unmarried or single pregnant women (whose pregnancies are between twenty and twenty-four weeks) from accessing abortion while allowing married women to access them during the same period would fall foul of the spirit guiding Article 14. The law should not decide the beneficiaries of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">a statute based on narrow patriarchal principles about what constitutes “permissible sex”, which create invidious classifications and excludes groups based on their personal circumstances. The rights of reproductive autonomy, dignity, and privacy under Article 21 give an unmarried woman the right of choice on whether or not to bear a child, on a similar footing of a married woman.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">122. In view of the purposive interpretation accorded to Rule 3B, we are not required to adjudicate upon its constitutional validity.</span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">133. In Devika Biswas v. Union of India, 114 the petitioners challenged the mass sterilisation program that was implemented by the government in highly unsanitary conditions. This Court recognized the need to respect and protect different facets of reproductive health as delineated in international human rights law. It noted that government policies affecting reproductive freedoms must be aimed at remedying the systemic discrimination prevailing in society and ensuring substantive equality. In Paschim Banga Khet Mazdoor Samiti v. State of West Bengal, 115 this Court observed that Article 21 imposes an obligation on the state to safeguard the right to health and the right to life of every person. It was held that this constitutional obligation exhorts the state to provide adequate medical services to the people and to ensure timely medical treatment to everyone. The above conspectus of cases </span><span style=\"font-size: 12pt;\">reveals that the state has a positive obligation under Article 21 to protect the right to health, and particularly reproductive health of individuals. In terms of reproductive rights and autonomy, the state has to undertake active steps to help increase access to healthcare (including reproductive healthcare such as abortion).</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\">134. The state must ensure that information regarding reproduction and safe sexual practices is disseminated to all parts of the population. Further, it must see to it that all segments of society are able to access contraceptives to avoid unintended pregnancies and plan their families. Medical facilities and RMPs must be present in each district and must be affordable to all. The government must ensure that RMPs treat all patients equally and sensitively. Treatment must not be denied on the basis of one’s caste or due to other social or economic factors. It is only when these recommendations become a reality that we can say that the right to bodily autonomy and the right to dignity are capable of being realized.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\">135. We clarify that nothing in this judgment must be construed as diluting the provisions of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994. </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">136. We dispose of the present appeal in terms of the reasons stated above. The writ petition before the High Court shall accordingly stand disposed of.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">137. Pending applications, if any, stand disposed of.</span></span></span></p>', '537c2ec14d0f01c2c22977264d12e472.jpg', '940a61d5abf0fcd90a5c7f8398521083.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-03', 1, '', '', '2022-09-30 23:59:30', '2022-10-03 13:00:25'),
(2255, 'VJhI2pDtPSRlofUdVtzIcvSv5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'The meaning of rape must be understood as including marital rape for the purposes of the Medical Termination of Pregnancy Act 1971 and any rules and regulations framed thereunder. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">X Vs The Principal Secretary Health and Family Welfare Department, Govt of NCT of Delhi and another.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 5802 of 2022 decided on 29 September 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Dhananjaya Y Chandrachud, Justice A.S. Bopanna and Justice J.B. Pardiwala.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. This appeal arises out of the judgment of a Division Bench of the High Court of Delhi dated 15 July 2022. The appellant invoked the writ jurisdiction of the High Court seeking its permission to terminate her pregnancy before the completion of twenty-four weeks on 15 July 2022. Other ancillary reliefs were sought.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">4. The appellant sought permission to terminate her pregnancy in terms of Section 3(2)(b) of the Medical Termination of Pregnancy Act 19712 and Rule 3B(c) of the Medical Termination of Pregnancy Rules 20033 (as amended on 12 October 2021). The appellant instituted a Criminal Miscellaneous Application4 for grant of interim relief to terminate her pregnancy during the pendency of the Writ Petition.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">116. In the context of abortion, the right to dignity entails recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate the pregnancy. Although human dignity inheres in every individual, it is susceptible to violation by external conditions and treatment imposed by the state. The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical wellbeing also injures the dignity of women.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">118. It seems to us that to give Rule 3B a restrictive and narrow interpretation would render it perilously close to holding it unconstitutional, for it would deprive unmarried women of the right to access safe and legal abortions between twenty and twenty-four weeks if they face a change in their material circumstances, similar to married women.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">121. The object of Section 3(2)(b) of the MTP Act read with Rule 3B is to provide for abortions between twenty and twenty-four weeks, rendered unwanted due to a change in the material circumstances of women. In view of the object, there is no rationale for excluding unmarried or single women (who face a change in their material circumstances) from the ambit of Rule 3B. A narrow interpretation of Rule 3B, limited only to married women, would render the provision discriminatory towards unmarried women and violative of Article 14 of the Constitution. Article 14 requires the state to refrain from denying to any person equality before the law or equal protection of laws. Prohibiting unmarried or single pregnant women (whose pregnancies are between twenty and twenty-four weeks) from accessing abortion while allowing married women to access them during the same period would fall foul of the spirit guiding Article 14. The law should not decide the beneficiaries of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">a statute based on narrow patriarchal principles about what constitutes “permissible sex”, which create invidious classifications and excludes groups based on their personal circumstances. The rights of reproductive autonomy, dignity, and privacy under Article 21 give an unmarried woman the right of choice on whether or not to bear a child, on a similar footing of a married woman.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">122. In view of the purposive interpretation accorded to Rule 3B, we are not required to adjudicate upon its constitutional validity.</span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">133. In Devika Biswas v. Union of India, 114 the petitioners challenged the mass sterilisation program that was implemented by the government in highly unsanitary conditions. This Court recognized the need to respect and protect different facets of reproductive health as delineated in international human rights law. It noted that government policies affecting reproductive freedoms must be aimed at remedying the systemic discrimination prevailing in society and ensuring substantive equality. In Paschim Banga Khet Mazdoor Samiti v. State of West Bengal, 115 this Court observed that Article 21 imposes an obligation on the state to safeguard the right to health and the right to life of every person. It was held that this constitutional obligation exhorts the state to provide adequate medical services to the people and to ensure timely medical treatment to everyone. The above conspectus of cases </span><span style=\"font-size: 12pt;\">reveals that the state has a positive obligation under Article 21 to protect the right to health, and particularly reproductive health of individuals. In terms of reproductive rights and autonomy, the state has to undertake active steps to help increase access to healthcare (including reproductive healthcare such as abortion).</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\">134. The state must ensure that information regarding reproduction and safe sexual practices is disseminated to all parts of the population. Further, it must see to it that all segments of society are able to access contraceptives to avoid unintended pregnancies and plan their families. Medical facilities and RMPs must be present in each district and must be affordable to all. The government must ensure that RMPs treat all patients equally and sensitively. Treatment must not be denied on the basis of one’s caste or due to other social or economic factors. It is only when these recommendations become a reality that we can say that the right to bodily autonomy and the right to dignity are capable of being realized.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\">135. We clarify that nothing in this judgment must be construed as diluting the provisions of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994. </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">136. We dispose of the present appeal in terms of the reasons stated above. The writ petition before the High Court shall accordingly stand disposed of.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">137. Pending applications, if any, stand disposed of.</span></span></span></p>', '08ab4527b86f02aa769c9db5f8def56a.jpg', '29bcb66a04c2be4c1469193b9fb6f9e3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-03', 1, '', '', '2022-10-01 00:04:02', '2022-10-03 15:27:46'),
(2256, 'mzJscZOVCU7ki3r26VM9GW5Vu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Woman who becomes pregnant as a result of non-consensual sexual intercourse performed upon her by her husband has a right of abortion under the Medical Termination of Pregnancy Act 1971. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">X Vs The Principal Secretary Health and Family Welfare Department, Govt of NCT of Delhi and another.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 5802 of 2022 decided on 29 September 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Dhananjaya Y Chandrachud, Justice A.S. Bopanna and Justice J.B. Pardiwala.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. This appeal arises out of the judgment of a Division Bench of the High Court of Delhi dated 15 July 2022. The appellant invoked the writ jurisdiction of the High Court seeking its permission to terminate her pregnancy before the completion of twenty-four weeks on 15 July 2022. Other ancillary reliefs were sought.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">4. The appellant sought permission to terminate her pregnancy in terms of Section 3(2)(b) of the Medical Termination of Pregnancy Act 19712 and Rule 3B(c) of the Medical Termination of Pregnancy Rules 20033 (as amended on 12 October 2021). The appellant instituted a Criminal Miscellaneous Application4 for grant of interim relief to terminate her pregnancy during the pendency of the Writ Petition.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">116. In the context of abortion, the right to dignity entails recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate the pregnancy. Although human dignity inheres in every individual, it is susceptible to violation by external conditions and treatment imposed by the state. The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical wellbeing also injures the dignity of women.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">118. It seems to us that to give Rule 3B a restrictive and narrow interpretation would render it perilously close to holding it unconstitutional, for it would deprive unmarried women of the right to access safe and legal abortions between twenty and twenty-four weeks if they face a change in their material circumstances, similar to married women.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">121. The object of Section 3(2)(b) of the MTP Act read with Rule 3B is to provide for abortions between twenty and twenty-four weeks, rendered unwanted due to a change in the material circumstances of women. In view of the object, there is no rationale for excluding unmarried or single women (who face a change in their material circumstances) from the ambit of Rule 3B. A narrow interpretation of Rule 3B, limited only to married women, would render the provision discriminatory towards unmarried women and violative of Article 14 of the Constitution. Article 14 requires the state to refrain from denying to any person equality before the law or equal protection of laws. Prohibiting unmarried or single pregnant women (whose pregnancies are between twenty and twenty-four weeks) from accessing abortion while allowing married women to access them during the same period would fall foul of the spirit guiding Article 14. The law should not decide the beneficiaries of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">a statute based on narrow patriarchal principles about what constitutes “permissible sex”, which create invidious classifications and excludes groups based on their personal circumstances. The rights of reproductive autonomy, dignity, and privacy under Article 21 give an unmarried woman the right of choice on whether or not to bear a child, on a similar footing of a married woman.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">122. In view of the purposive interpretation accorded to Rule 3B, we are not required to adjudicate upon its constitutional validity.</span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">133. In Devika Biswas v. Union of India, 114 the petitioners challenged the mass sterilisation program that was implemented by the government in highly unsanitary conditions. This Court recognized the need to respect and protect different facets of reproductive health as delineated in international human rights law. It noted that government policies affecting reproductive freedoms must be aimed at remedying the systemic discrimination prevailing in society and ensuring substantive equality. In Paschim Banga Khet Mazdoor Samiti v. State of West Bengal, 115 this Court observed that Article 21 imposes an obligation on the state to safeguard the right to health and the right to life of every person. It was held that this constitutional obligation exhorts the state to provide adequate medical services to the people and to ensure timely medical treatment to everyone. The above conspectus of cases </span><span style=\"font-size: 12pt;\">reveals that the state has a positive obligation under Article 21 to protect the right to health, and particularly reproductive health of individuals. In terms of reproductive rights and autonomy, the state has to undertake active steps to help increase access to healthcare (including reproductive healthcare such as abortion).</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\">134. The state must ensure that information regarding reproduction and safe sexual practices is disseminated to all parts of the population. Further, it must see to it that all segments of society are able to access contraceptives to avoid unintended pregnancies and plan their families. Medical facilities and RMPs must be present in each district and must be affordable to all. The government must ensure that RMPs treat all patients equally and sensitively. Treatment must not be denied on the basis of one’s caste or due to other social or economic factors. It is only when these recommendations become a reality that we can say that the right to bodily autonomy and the right to dignity are capable of being realized.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\">135. We clarify that nothing in this judgment must be construed as diluting the provisions of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994. </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">136. We dispose of the present appeal in terms of the reasons stated above. The writ petition before the High Court shall accordingly stand disposed of.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">137. Pending applications, if any, stand disposed of.</span></span></span></p>', '8fe93904d329752906ac854cea377055.jpg', 'c7cc5e17b79089ffdb174a386151ef2a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-03', 1, '', '', '2022-10-01 00:12:56', '2022-10-03 12:40:01');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2257, 'JqELyaUV45vWO6n8sT7DwGb5x', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Misquoting or non-quoting of a provision by itself will not make an order bad so long as the relevant enabling provision is in existence and it was correctly applied though without specifically mentioning it. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Sukhbiri Devi and others Vs Union of India and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 10834 of 2010 decided on 29 September 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Ajay Rastogi and Justice C.T. Ravikumar.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">1. This appeal by Special Leave is directed against the judgment and order in RSA No.79/2007 dated 25.08.2009 passed by the High Court of Delhi. The appellants were plaintiffs in Suit No.410 of 2000 on the file of the Court presided over by Shri Vidya Prakash, Civil Judge, Delhi, (hereinafter referred to as ‘the Trial Court’), filed seeking reliefs mainly against the 5th Respondent. The Trial Court framed a preliminary issue on the question of limitation, evidently, upon forming the opinion that case may be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">disposed of on an issue of law and that it warrants postponement of settlement of other issues until after that issue has been determined and to deal with the suit in accordance with the decision on that issue. Accordingly, the Trial Court framed a preliminary question as to “whether the Suit is within the limitation”. Upon answering the same in the negative, in accordance with the said decision, the suit was dismissed as per judgment dated 13.05.2005. The defendants challenged the said judgment and decree before the Court presided over by Shri Sukhdev Singh, Additional District Judge, Delhi, (hereinafter referred to as the ‘First Appellate Court’) in Civil Appeal No.99/2005 and it dismissed the appeal and confirmed the judgment and decree of the Trial Court, as per judgment dated 08.12.2006. Thereupon, they took up the matter in second appeal before the High Court. As per the impugned judgment dated 25.08.2009 the High Court concurred with the findings and dismissed the appeal answering the question of law against the appellants. Leave was granted in Special Leave Petition No.34648 of 2009 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">filed against the stated judgment of the High Court and in this civil appeal, the respondents were granted liberty to file counter affidavits.</span><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">8. Based on the impugned judgment, the rival pleadings and the arguments advanced before us, following substantial questions call for consideration:- (a) Whether the issue of limitation can be determined as a preliminary issue under Order XIV, Rule 2(2) of the Code of Civil Procedure (for short ‘CPC’)?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(b) Whether a larger period of limitation of 12 years would be available to the plaintiffs to bring in a suit by virtue of application of Article 136 of the Limitation Act, 1968 (for short ‘The Act’), as contended by the appellant and in the facts and circumstances obtained in this case?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(c) Whether Article 17 or Article 65 of the Act got any application, as contended by the appellants, in view of the plaint averments, in case Article 136 of the Act is found inapplicable?<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">15. Now, we will consider the first question: ‘whether the issue of limitation can be determined as a preliminary issue under Order XIV, Rule 2, CPC’. It is no longer res integra. In the decision in Mongin Realty and Build Well Private Limited vs. Manik Sethi7 , even while holding that the course of action followed by the learned Trial Judge of directing the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">parties to address arguments on the issue of limitation as irregular since it being a case where adduction of evidence was required, a two-Judge Bench of this Court referred to a three-Judge Bench decision of this Court in Nusli Neville Wadia Vs. Ivory Properties8 observing that the issue therein was whether the issue of limitation could be determined as a preliminary issue under Order XIV, Rule 2, CPC. After taking note of the fact that going by the decision in Nusli Neville Wadia’s case8 , in a case where question of limitation could be decided based on admitted facts it could be decided as a preliminary issue under Order XIV, Rule 2(2)(b), CPC., the twoJudge Bench held that in the case before their Lordships the question of limitation could not have been decided as a preliminary issue under Order XIV, Rule 2 of CPC as determination of the issue of limitation in that case was not a pure question of law. </span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">18. We referred to the said provisions and decisions only to stress upon the point that the appellants cannot legally have any dispute or grievance in taking their statements in the plaint capable of determining the starting point of limitation for the purpose of application of Order XIV, Rule 2(2)(b) of the CPC. Though, limitation is a mixed question of law and facts it will shed the said character and would get confined to one of question of law when the foundational fact(s), determining the starting point of limitation is vividly and specifically made in the plaint averments. In such a circumstance, if the Court concerned is of the opinion that limitation could be framed as a preliminary point and it warrants postponement of settlement of other issues till <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">determination of that issue, it may frame the same as a preliminary issue and may deal with the suit only in accordance with the decision on that issue. It cannot be said that such an approach is impermissible in law and in fact, it is perfectly permissible under Order XIV, Rule 2(2)(b), CPC and legal in such circumstances. In short, in view of the decisions and the provisions, referred above, it is clear that the issue limitation can be framed and determined as a preliminary issue under Order XIV, Rule 2(2)(b), CPC in a case where it can be decided on admitted facts.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">21. In the instant such a stage for application of Article 136 of the Limitation Act had not reached and, in troth, the question involved is relatable only to the time restriction for initiating legal proceedings to seek the alleged legal right. In the said circumstances, the inevitable conclusion can only be that Article 136 got no application in the case on hand and as such the Appellants could not claim for a larger period of limitation of 12 years.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">25. The challenge against the impugned judgment of the High Court is that it wrongly applied Article 58 of the Limitation Act while confirming the concurrent decisions of the First Appellate Court and the Trial Court. In this context, it is relevant to note the prayers made in the suit by the plaintiffs which were extracted hereinbefore. Undoubtedly, the plaintiffs sought for declarations in the manner referred above and thereby, made the nature of the suit as declaratory. This position is indisputable. It is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">true that the Trial Court though found the period of limitation as three years taking into account the nature of the reliefs it did not specifically mention the relevant provision in its judgment. There can be little doubt with respect to the position that misquoting or non-quoting of a provision by itself will not make an order bad so long as the relevant enabling provision is in existence and it was correctly applied though without specifically mentioning it. The High Court had only referred to the relevant, applicable provision under the Limitation Act upon considering the nature of the suit and the reliefs sought for, in the plaint. We do not find any perversity or illegality in the finding of the High Court for sustaining the concurrent findings with respect to the issue whether the suit was barred by limitation.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">26. The relief sought for, in suit No.410/2000 would reveal that the first prayer, which is the main prayer, is declaratory in nature. Even according to the plaintiffs, as revealed from the plaint the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">second prayer (extracted hereinbefore) is only consequential relief. A perusal of the same would undoubtedly show that it is consequential and not an independent one and therefore the courts below are right in holding that the said prayer is grantable only if the first prayer is granted. In this case based on the determination on the preliminary issue of limitation and in accordance with the decision on that preliminary issue the suit was dismissed. As held by the three-judge Bench in the decision in Nusli Neville Wadia’s case (supra) the provisions under Order XIV Rule 2(1) and Rule 2(2)(b) permit to deal with and dispose of a suit in accordance with the decision on the preliminary issue. In the case on hand in view of the nature of the finding on the preliminary issue and the consequential consideration of the suit in terms of Order XIV Rule 2(2)(b) and taking note of the fact that the suit do not survive after such consideration we find no reason to consider the contention of the appellants with reference to Order VII Rule 11 based on the decisions relied on by them and referred hereinbefore. So also, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the contentions of the appellants based on Articles 17 and 65 also would pale into insignificance and warrant no consideration at all, in the circumstances.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">27. The upshot of the above discussion is that there is absolutely no perversity or illegality in the concurrent findings of the courts below warranting interference in invocation of the power under Article 136 of the Constitution of India. In the result, the appeal stands dismissed with costs.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">28. All pending applications are disposed of. </span></span></p>', '8b0c4a3a34bc8df9aba6e910aceb6f80.jpeg', '0382419ea666981c50f6e4600fa71134.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-01', 1, '', '', '2022-10-01 01:33:16', '2022-10-01 06:52:17'),
(2258, 'cOkww7Zd9JsMjqTa6Y2RPBalm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Offence of criminal conspiracy can be a standalone offence in certain circumstances particularly in financial transaction cases. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Associate Lumbers Private Limited Vs State by CBI and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 7325 of 2022 decided on 30 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioners in these petitions call in question First\r\nInformation Report registered on 17-02-022 by the Central Bureau\r\nInvestigation in No. RC0782022E0001 for offences punishable\r\nunder Sections 13(2) read with 13(1)(d) of the Prevention of\r\nCorruption Act, 1988 (hereinafter referred to as ‘the Act’ for short)\r\nand Section 120B read with Section 420 of the IPC. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The petitioner in Criminal Petition No.7325 of 2022 is\r\n‘Associate Lumbers Private Limited’ (hereinafter referred to as ‘the\r\nCompany’ for short). The Company, one incorporated under the\r\nCompanies Act, 1956, is engaged in the business of trading timber,\r\nteakwood, packing cases, plywood and other wood products. It is </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the claim of the Company that the Company had been a customer\r\nof the then Corporation Bank (‘the Bank’ for short) presently\r\nmerged with the 2nd respondent/Union Bank of India since 1988.\r\nOn 05-03-2003, on an application made by the Company, a loan\r\nfacility was extended by Poonja Arcade Branch, Mangalore of the\r\nBank. The same was sanctioned and a credit limit of Rs.23/- crores\r\nwas granted on 05-03-2003. The credit limit was\r\nextended/enhanced from time to time at the request of the\r\npetitioner and on 21-09-2015 loan account was renewed and\r\nenhanced to Rs.60/- crores. The date 21-09-2015 was the last of\r\nthe renewal made for a credit limit of Rs.60/- crores. It is the claim\r\nof the petitioner/Company that due to economic slowdown in the\r\ndomestic market there was severe cash crunch generated and the\r\nCompany was not in a position to pay the debt in time.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. On account of the account becoming a non-performing\r\nasset, the Bank took several actions against the petitioner/\r\nCompany by initiating proceedings under the SARFAESI Act,\r\nthrough which a portion of the outstanding dues to the credit facility\r\nwas recovered. Not stopping at that, the Bank in terms of Reserve <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Bank of India guidelines declared the account of the Company to be\r\na fraud, and account holders to be willful defaulters and initiated\r\nseveral proceedings to recover the amount. Those proceedings are\r\nnot the one that is the issue in the case at hand. After initiation of\r\nproceedings under the SARFAESI Act and also getting in possession\r\nof the recovery certificate from, the hands of the competent fora,\r\nthe Bank registered a complaint against the petitioner/Company on\r\n15-02-2022 terming the account to be a fraud and alleging offences\r\nof cheating, criminal conspiracy by the petitioner and its Directors.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. The afore-narrated facts are not in dispute as they are all\r\na matter of record, but they would require reiteration with little\r\nelaboration. The Company and the Directors of the Company are\r\nthe petitioners in the cases at hand. The business of the Company\r\nis not in dispute. The loan that was sanctioned to the petitioners’\r\nright from 2003 is also not in dispute. Last of the renewal and\r\nsanction of the enhanced capital is on 21.09.2015 is an undisputed\r\nfact.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. It is also not in dispute that the Bank has exercised its\r\nright and has instituted proceedings before the Debt Recovery\r\nTribunal invoking the provisions of the SARFAESI Act and are also\r\nin possession of the recovery certificate with regard to immovable\r\nthat was the subject matter of security and certain movables are <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">also sold, but the issue is the sale of movables i.e., the\r\nhypothecated stock by the petitioners is what forms the crux of the\r\ncomplaint. This Court again in plethora of cases has clearly held\r\nthat when the jurisdiction of the Tribunal is invoked by the Bank,\r\nunless such an action is declared to be a fraud, they cannot\r\nmaintain two proceedings – one before the Debt Recovery Tribunal\r\nand the other setting the criminal law in motion. If the account is\r\ndeclared to be a fraud and the account holders to be willful\r\ndefaulters, then it would become open to initiate such proceedings\r\nin terms of the Master Circular. Therefore, having initiated\r\nrecovery proceedings before the Debt Recovery Tribunal and having\r\na recovery certificate in their hand would not mean that the\r\nproceedings cannot be initiated against these petitioners, to iterate\r\nthe matter is still at the state of investigation. In the peculiar facts\r\nof this case, it is too premature for this Court to interfere in the\r\nallegations of the nature that is made in the case at hand. The\r\npetitioners always have remedies in law at a later stage of the\r\nproceedings.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. The other contention that criminal conspiracy as obtaining\r\nunder Section 120B of the IPC is not a standalone offence and what\r\nis alleged is criminal conspiracy read with cheating cannot mean\r\nthat there is any offence even as contended by the learned senior\r\ncounsel Sri Hashmath Pasha is again unacceptable. The Apex Court\r\nin plethora of cases has held that offence of criminal conspiracy can\r\nbe a standalone offence in certain circumstances particularly in\r\ncases where money is borrowed from the Banks. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the light of the said judgment rendered by the Apex Court, the\r\ncontention of the learned senior counsel as also the judgment\r\nrendered by the Apex Court in the case of LEO ROY FREY v. THE\r\nSUPERINTENDENT, DISTRICT JAIL – AIR 1958 SC 119 to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contend that Section 120B of the IPC cannot be laid as a main\r\noffence again is rendered unacceptable.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 24. Plethora of judgments relied on by the respective learned\r\nsenior counsel representing the petitioners other than what is\r\nconsidered hereinabove would all be inapplicable to the facts of the\r\ncase at hand and would not merit any consideration at this stage of\r\nthe proceedings.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 25. In view of the preceding analysis, I do not find any merit\r\nto entertain the petitions. Accordingly, the petitions stand\r\ndismissed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>It is made clear that the observations made in the course of\r\nthis order are only for the purpose of consideration of the case of\r\nthe petitioners under Section 482 of the Cr.P.C.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e173de1730e59472d9275a009252cc0b.JPG', 'f4642f65851132d1201a2e669fbb674b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-04', 1, '', '', '2022-10-03 15:58:35', '2022-10-04 04:41:01'),
(2260, '1KJP1mlYyzFvMoRvBW50FriAm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Avoid technicalities in payment of compensation to land losers. If two views are possible, the view that advances the cause of justice must be preferred. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kazi Moinuddin Kazi Bashiroddin and others Vs The Maharashtra Tourism Development Corporation and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 7062 of 2022 decided on 30 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dinesh Maheshwari and Justice Sudhanshu Dhulia.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The appellants herein are respondents in First Appeal No. 1673 of\r\n2017 (First Appeal St. No. 37304 of 2016) pending in the High Court of\r\nJudicature at Bombay, Bench at Aurangabad. They have preferred this\r\nappeal for being aggrieved of the order dated 03.12.2018, as passed in\r\nCivil Application No. 7037 of 2018 moved in the said appeal, whereby the\r\nHigh Court has allowed the applicant-Maharashtra Tourism Development <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Corporation (‘MTDC’-respondent No.1)1\r\n to withdraw an amount of\r\nRs. 1,37,50,547/-, which was deposited by them on 20.03.2018 towards\r\nenhanced amount of compensation.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. Put in a nutshell, the case of the applicant-MTDC before the High\r\nCourt had been that 50% of the amount of compensation awarded by the\r\nReference Court had already been deposited by them on 20.01.2017 in\r\nterms of the order passed by the High Court on 14.12.2016; and the said\r\norder dated 14.12.2016 having not been altered by any Court, they had\r\nmistakenly deposited further an amount of Rs. 1,37,50,547/- and were\r\nentitled to withdraw the same.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. A somewhat peculiar situation of the present case has its genesis\r\nin the fact that on 14.12.2016, the High Court had ordered stay over\r\nexecution of the award dated 19.03.2016 on the condition of the\r\napplicant-MTDC depositing 50% of the amount of compensation along\r\nwith interest accrued. On 01.02.2017 the applicant-MTDC indeed\r\ndeposited the said 50% of the amount of compensation but, by the order\r\ndated 07.06.2017, the High Court permitted withdrawal only of 50% of the\r\nsaid deposited amount (which itself was 50% of the compensation\r\namount) on an undertaking and the remaining amount was ordered to be\r\nplaced in fixed deposit. This order was in challenge in this Court in Civil\r\nAppeal No. 1348 of 2018 wherein this Court passed the order dated\r\n29.01.2018, as reproduced hereinbefore</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Apart from the above, fact of the matter remains that in the\r\npresent case, specific order has been passed by this Court in terms of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">order passed in the case of Wajidmiya Abdul Raheman Shaikh (supra).\r\nThe order passed by this Court had been explicit that the order of the\r\nHigh Court staying the payment of enhanced compensation stood\r\nmodified to the effect that 50% of the enhanced amount of compensation\r\nwas to be released without security and the balance 50% on furnishing\r\nsecurity. Even if the initial stay order dated 14.12.2016 had not, as such,\r\nbeen challenged before this Court, the disbursal order dated 07.06.2017\r\nhad essentially been in continuity thereof and while considering challenge\r\nto the disbursal order, nothing prevented this Court from modifying the\r\nprincipal stay order itself.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13. In our view, the order dated 29.01.2018 passed by this Court in\r\nCivil Appeal No. 1348 of 2018 is required to be interpreted and applied on\r\nits substance rather than technicalities. The intent of this Court in\r\nWajidmiya Abdul Raheman Shaikh (supra) had been clear that the\r\nentire amount of enhanced compensation should reach the claimants\r\nwhile they would be obliged to furnish security to the extent of 50%\r\nthereof. When the same terms were applied to the present case, the\r\nattempt on the part of the applicant-MTDC to fall back again and again on\r\nthe order dated 14.12.2016 could not have been countenanced.\r\nUnfortunately, the High Court has fallen in such an error by accepting the\r\nhyper technical submissions on behalf of the applicant-MTDC. In fact, the\r\napplicant-MTDC had correctly understood the meaning, purport and effect\r\nof the order dated 29.01.2018 in the first instance when the remaining </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">50% of the amount of compensation was deposited on 20.03.2018. Their\r\nsecond thought and late attempt to withdraw the said amount, was\r\nrequired to be rejected.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>14. Before closing this matter, we are impelled to observe that the\r\norders passed by the Courts, and particularly by this Court, are required\r\nto be understood on their pith and substance while avoiding an approach\r\nof technicalities. Moreover, when the matter relates to the payment of\r\namount of compensation to the land losers, if at all two views are\r\npossible, the view that advances the cause of justice is always to be\r\npreferred rather than the other view, which may draw its strength only\r\nfrom technicalities. We say no more for the present.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>15. Accordingly and in view of the above, this appeal succeeds and is\r\nallowed; the impugned order dated 03.12.2018 is set aside and the\r\napplication filed by the applicant-MTDC for withdrawal of deposited\r\namount of compensation stands rejected. No costs. </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e6530fac01df154eae726267fc5e3574.jpeg', 'acaa9118eb15c8ffad528531ce316289.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-06', 1, '', '', '2022-10-03 18:04:08', '2022-10-06 08:35:58'),
(2261, 'iJPgH8HD14AH6l062qPamZRfy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Can RBI issue directions to Banks to disclose customers information adversely affecting the individuals’ fundamental right to privacy? Supreme Court takes up the issue.   ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>HDFC Bank Ltd and others Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition (Civil) 1159 of 2019 decided on 30 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B.R. Gavai and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. This batch of writ petitions has been filed by various Banks including private banks, inter alia, challenging the action of the respondent­Reserve Bank of India (hereinafter referred to as “RBI”) in directing disclosure of confidential and sensitive information pertaining to their affairs, their employees and their customers under the Right to Information Act, 2005 (hereinafter referred to as “the RTI Act”), which, in their submission, is otherwise exempt under Section 8 thereof. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>32. It could thus be seen that the principle of ex debito justitiae has been emphasized. This Court held that no man should suffer because of the mistake of the court. No man should suffer a wrong by technical procedure of irregularities. It has been held that the rules of procedure are the handmaidens of justice and not the mistress of justice. It has further been held that if a man has been wronged, so long as the wrong lies within the human machinery of administration of justice, that wrong must be remedied</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>36. After referring to the judgment of this Court in the case of Rupa Ashok Hurra (supra), this Court has held that it does not lay down a proposition that the ratio decidendi of an earlier decision cannot be examined or differed with in another case. It has been held that if the Court is satisfied that the issue raised in the later petition requires consideration and in that context, the earlier decision requires re­examination, the Court can certainly proceed to examine the matter or refer the matter to a larger Bench, if the earlier decision is not of a smaller Bench. This Court, therefore, specifically rejected the contention that a writ petition under Article 32 of the Constitution was barred or not maintainable with reference to an issue which was the subject matter of an earlier decision.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>37. In the present case, admittedly, the writ petitioners/Banks were not parties in the case of Jayantilal N. Mistry (supra). Though the Miscellaneous Applications filed by HDFC Bank and others for recall of the judgment and order in the case of Jayantilal N. Mistry (supra) were rejected by this Court vide order dated 28th April 2021</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>38. It is thus clear that this Court did not foreclose the right of the petitioners/Banks to pursue other remedies available to them in law. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>39. In view of the judgment of this Court in the case of Jayantilal N. Mistry (supra), the RBI is entitled to issue directions to the petitioners/Banks to disclose information even with regard to the individual customers of the Bank. In effect, it may adversely affect the individuals’ fundamental right to privacy. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>42. Without expressing any final opinion, prima facie, we find that the judgment of this Court in the case of Jayantilal N. Mistry (supra) did not take into consideration the aspect of balancing the right to information and the right to privacy. The petitioners have challenged the action of the respondent­RBI, vide which the RBI issued directions to the petitioners/Banks to disclose certain information, which according to the petitioners is not only contrary to the provisions as contained in the RTI Act, the RBI Act and the Banking Regulation Act, 1949, but also adversely affects the right to privacy of such Banks and their consumers. The RBI has issued such directions in view of the decision of this Court in the case of Jayantilal N. Mistry (supra) and Girish Mittal (supra). As such, the petitioners would have no other remedy than to approach this Court. As observed by Ranganath Misra, J. in the case of A.R. Antulay (supra) that, this being the Apex Court, no litigant has any opportunity of approaching any higher forum to question its decision. The only remedy available to the petitioners would be to approach this Court by way of writ petition under Article 32 of the Constitution of India for protection of the fundamental rights of their customers, who are citizens of India. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>43. We, therefore, hold that the preliminary objection as raised is not sustainable. The same is rejected. I.A. No.51632 of 2022 in Writ Petition (Civil) No.1159 of 2019 and I.A. No.54521 of 2022 in Writ Petition (Civil) No.683 of 2021 are accordingly dismissed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '23a461e1fd6031d3a948ab1393730fa2.jpeg', '01ead5b85fc3a646b1baa926616488fa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-04', 1, '', '', '2022-10-03 18:13:23', '2022-10-04 12:54:24');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2262, '3c4rJU3Q7avvAumIHgYScQK1a', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Direction to give compassionate appointment after a period of 14/24 years will be against the object and purpose for which the appointment on compassionate ground is provided. Supreme Court, while reversing the High Court Judgment. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Fertilizers and Chemicals Travancore Ltd and others Vs Anusree K.B.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6958 of 2022 decided on 30 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice Krishna Murari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. The facts leading to the present appeal in nutshell are as under:-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2.1. That father of the respondent was employed as a loading helper\r\nwith the appellant No. 1 and expired while on duty on 19.04.1995. At the\r\ntime of death of the employee, the wife of the deceased employee was\r\nserving and therefore, was not eligible for appointment on\r\ncompassionate ground considering the scheme for employment of\r\ndependents of the employees dying in harness. After a period of 14\r\nyears, after the death of the deceased employee, the respondent\r\ndaughter of the deceased employee made a representation seeking\r\nappointment on compassionate basis. That her application for\r\ncompassionate appointment was rejected on 12.02.2018 on the grounds\r\nthat her name was not in the list of dependents submitted by the\r\ndeceased employee and that the policy was to give employment to\r\nwidow or son or unmarried daughter of the deceased employee.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2.3. That on 12.12.2019, after reconsideration, the appellants again\r\nrejected the application of the respondent for appointment on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">compassionate ground on the grounds that it did not meet the primary\r\ntest of scheme that the deceased employee should be the “sole bread\r\nwinner of his family”, since his wife was gainfully employed with the\r\nKerala State Health Services Department at the time of his death and\r\nalso on the ground that 24 years have lapsed since the date of death of\r\nthe deceased employee</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. The respondent’s father was serving as a loading helper. He died\r\nin the year 1995. At the relevant time, the widow of the deceased\r\nemployee – mother of the respondent was serving in the Kerala State <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Health Services Department and, therefore, as such was not eligible\r\nand/or entitled for appointment on compassionate ground. After a period\r\nof approximately 14 years, the respondent being a daughter of the\r\ndeceased employee submitted an application for appointment on\r\ncompassionate ground, which has been rejected by the appellants. At\r\nthis stage, it is required to be noted that in the meantime, the respondent\r\ngot married in the year 2013. It is also required to be noted that by the\r\ntime, the learned Single Judge passed the order, which has been\r\nconfirmed by the Division Bench, more than 24 years have passed after\r\nthe death of the deceased employee. In light of the aforesaid facts and\r\ncircumstances, it is required to be considered whether still the\r\nrespondent shall be entitled to appointment on compassionate ground\r\non the death of her father, who died in the year 1995?</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. As per the law laid down by this Court in catena of decisions on\r\nthe appointment on compassionate ground, for all the government\r\nvacancies equal opportunity should be provided to all aspirants as\r\nmandated under Articles 14 and 16 of the Constitution. However,\r\nappointment on compassionate ground offered to a dependent of a\r\ndeceased employee is an exception to the said norms. The\r\ncompassionate ground is a concession and not a right. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Thus, as per the law laid down by this Court in the aforesaid\r\ndecisions, compassionate appointment is an exception to the general\r\nrule of appointment in the public services and is in favour of the\r\ndependents of a deceased dying in harness and leaving his family in\r\npenury and without any means of livelihood, and in such cases, out of\r\npure humanitarian consideration taking into consideration the fact that\r\nunless some source of livelihood is provided, the family would not be\r\nable to make both ends meet, a provision is made in the rules to provide\r\ngainful employment to one of the dependants of the deceased who may\r\nbe eligible for such employment. The whole object of granting\r\ncompassionate employment is, thus, to enable the family to tide over the\r\nsudden crisis. The object is not to give such family a post much less a\r\npost held by the deceased.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n9.1. Applying the law laid down by this Court in the aforesaid decisions\r\nto the facts of the case on hand and considering the observations made\r\nhereinabove and the object and purpose for which the appointment on\r\ncompassionate ground is provided, the respondent shall not be entitled\r\nto the appointment on compassionate ground on the death of her father <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">who died in the year 1995. After a period of 24 years from the death of\r\nthe deceased employee, the respondent shall not be entitled to the\r\nappointment on compassionate ground. If such an appointment is made\r\nnow and/or after a period of 14/24 years, the same shall be against the\r\nobject and purpose for which the appointment on compassionate ground\r\nis provided.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>9.2. Under the circumstances, both, the learned Single Judge as well\r\nas the Division Bench of the High Court have committed a serious error\r\nin directing the appellants to reconsider the case of the respondent for\r\nappointment on compassionate ground. The impugned judgment and\r\norder passed by the High Court is unsustainable.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>10. In view of the above and for the reasons stated above, the present\r\nappeal succeeds. The judgment and order passed by the learned Single\r\nJudge as well as the Division Bench of the High Court are hereby\r\nquashed and set aside.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Present appeal is accordingly allowed. No costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ad7aa16fab31a6fddb7b5ec41b8c3f1e.jpeg', 'ee2251c667540f2197b854bddb1292e3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-03', 1, '', '', '2022-10-03 18:19:48', '2022-10-04 09:43:59'),
(2263, 'kABYJL1Lh1HfqPtUFhuzO6bRM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘Who   decides Arbitrability?’.  High Court must hold primary inquiry/review and prima facie come to conclusion on whether the dispute falls under the agreement and whether the dispute is arbitrable or not. Supreme Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/s. Emaar India Ltd Vs Tarun Aggarwal Projects LLP and another<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6774 of 2022 decided on 30 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice Krishna Murari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 24.12.2021 passed by the High Court of Delhi at New Delhi in Arbitration Petition No. 637 of 2021, by which, the High Court in exercise of powers under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Arbitration Act) has appointed arbitrators to resolve the dispute between the parties, the original respondent – M/s EMMAR India Limited has preferred the present appeal.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. That the original petitioners – respondents herein entered into a Collaboration Agreement dated 07.05.2009 for development of a residential colony in Sector 62 and 65, Gurugram. That thereafter, a further Addendum Agreement dated 19.04.2011 was executed between the parties. The dispute arose between the parties and it was the case on behalf of the original applicants – respondents herein that the appellant herein did not comply with the obligations under the Addendum Agreement dated 19.04.2011. The respondents – original applicants/petitioners issued a legal notice dated 20.11.2019 raising demand for physical possession of 5 plots measuring 2160 sq. yds. and claiming a sum of Rs. 10 crores for the losses/damages suffered by them. As according to the original petitioners – respondents herein the dispute between the parties were arbitrable, the original petitioners appointed a former judge of the High Court as their arbitrator. The appellant herein denied appointment of the arbitrator. Therefore, the respondents herein approached the High Court for appointment of the arbitrators in terms of Clause 37 of the Addendum Agreement by submitting an application under Section 11(5) & (6) of the Arbitration Act seeking appointment of arbitrators by the Court.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. The short question which is posed for consideration of this Court is whether in the facts and circumstances of the case, the High Court is justified in appointing the arbitrators in an application under Section 11(5) and (6) of the Arbitration Act without holding any preliminary inquiry or inquiry on whether the dispute is arbitrable or not?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. Applying the law laid down by this Court in the aforesaid decisions and considering Clauses 36 and 37 of the Agreement and when a specific plea was taken that the dispute falls within Clause 36 and not under Clause 37 and therefore, the dispute is not arbitrable, the High Court was at least required to hold a primary inquiry/review and prima facie come to conclusion on whether the dispute falls under Clause 36 or not and whether the dispute is arbitrable or not. Without holding such primary inquiry and despite having observed that a party does have a right to seek enforcement of agreement before the Court of law as per Clause 36, thereafter, has appointed the arbitrators by solely observing that the same does not bar settlement of disputes through Arbitration and Conciliation Act, 1996. However, the High Court has not appreciated and considered the fact that in case of dispute as mentioned in Clauses 3, 6 and 9 for enforcement of the Agreement, the dispute is not arbitrable at all. In that view of the matter, the impugned judgment and order passed by the High Court appointing the arbitrators is unsustainable and the same deserves to be quashed and set aside. However, at the same time, as the High Court has not held any preliminary inquiry on whether the dispute is arbitrable or not and/or whether the dispute falls under Clause 36 or not, we deem it proper to remit the matter to the High Court to hold a preliminary inquiry on the aforesaid in light of the observations made by this Court in the case of Vidya Drolia (supra) and in the case of Indian Oil Corporation Limited (supra) and the observations made hereinabove and thereafter, pass an appropriate order.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. In view of the above and for the reasons stated above the present appeal succeeds. The impugned judgment and order passed by the High Court appointing the arbitrators in terms of Clause 37 of the Addendum Agreement dated 19.04.2011 is hereby quashed and set aside. The matter is remitted to the High Court to decide the application under Section 11(5) and (6) of the Arbitration Act afresh and to pass an appropriate order after holding a preliminary inquiry/review on whether the dispute is arbitrable or not and/or whether the dispute falls within Clause 36 of the Addendum Agreement or not. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The present appeal is accordingly allowed. No costs. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9c223afa55cff5a8f2b5a60e4dcb76ca.jpeg', '858f464e816f7b2faaaa736799f9883a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-05', 1, '', '', '2022-10-03 18:38:45', '2022-10-05 13:00:31'),
(2264, 'tOxwbVN1xwR8aEu2o4Lfx5h1D', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Invocation of SARFAESI is not a bar for Bank to initiate criminal action if account is declared fraud. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Associate Lumbers Private Limited Vs State by CBI and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Criminal Petition 7325 of 2022 decided on 30 September 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice M. Nagaprasanna.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The petitioners in these petitions call in question First Information Report registered on 17-02-022 by the Central Bureau Investigation in No. RC0782022E0001 for offences punishable under Sections 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the Act’ for short) and Section 120B read with Section 420 of the IPC.&nbsp;<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">3. The petitioner in Criminal Petition No.7325 of 2022 is ‘Associate Lumbers Private Limited’ (hereinafter referred to as ‘the Company’ for short). The Company, one incorporated under the Companies Act, 1956, is engaged in the business of trading timber, teakwood, packing cases, plywood and other wood products. It is&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the claim of the Company that the Company had been a customer of the then Corporation Bank (‘the Bank’ for short) presently merged with the 2nd respondent/Union Bank of India since 1988. On 05-03-2003, on an application made by the Company, a loan facility was extended by Poonja Arcade Branch, Mangalore of the Bank. The same was sanctioned and a credit limit of Rs.23/- crores was granted on 05-03-2003. The credit limit was extended/enhanced from time to time at the request of the petitioner and on 21-09-2015 loan account was renewed and enhanced to Rs.60/- crores. The date 21-09-2015 was the last of the renewal made for a credit limit of Rs.60/- crores. It is the claim of the petitioner/Company that due to economic slowdown in the domestic market there was severe cash crunch generated and the Company was not in a position to pay the debt in time.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">4. On account of the account becoming a non-performing asset, the Bank took several actions against the petitioner/ Company by initiating proceedings under the SARFAESI Act, through which a portion of the outstanding dues to the credit facility was recovered. Not stopping at that, the Bank in terms of Reserve&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Bank of India guidelines declared the account of the Company to be a fraud, and account holders to be willful defaulters and initiated several proceedings to recover the amount. Those proceedings are not the one that is the issue in the case at hand. After initiation of proceedings under the SARFAESI Act and also getting in possession of the recovery certificate from, the hands of the competent fora, the Bank registered a complaint against the petitioner/Company on 15-02-2022 terming the account to be a fraud and alleging offences of cheating, criminal conspiracy by the petitioner and its Directors.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">13. The afore-narrated facts are not in dispute as they are all a matter of record, but they would require reiteration with little elaboration. The Company and the Directors of the Company are the petitioners in the cases at hand. The business of the Company is not in dispute. The loan that was sanctioned to the petitioners’ right from 2003 is also not in dispute. Last of the renewal and sanction of the enhanced capital is on 21.09.2015 is an undisputed fact.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">22. It is also not in dispute that the Bank has exercised its right and has instituted proceedings before the Debt Recovery Tribunal invoking the provisions of the SARFAESI Act and are also in possession of the recovery certificate with regard to immovable that was the subject matter of security and certain movables are&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">also sold, but the issue is the sale of movables i.e., the hypothecated stock by the petitioners is what forms the crux of the complaint. This Court again in plethora of cases has clearly held that when the jurisdiction of the Tribunal is invoked by the Bank, unless such an action is declared to be a fraud, they cannot maintain two proceedings – one before the Debt Recovery Tribunal and the other setting the criminal law in motion. If the account is declared to be a fraud and the account holders to be willful defaulters, then it would become open to initiate such proceedings in terms of the Master Circular. Therefore, having initiated recovery proceedings before the Debt Recovery Tribunal and having a recovery certificate in their hand would not mean that the proceedings cannot be initiated against these petitioners, to iterate the matter is still at the state of investigation. In the peculiar facts of this case, it is too premature for this Court to interfere in the allegations of the nature that is made in the case at hand. The petitioners always have remedies in law at a later stage of the proceedings.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">23. The other contention that criminal conspiracy as obtaining under Section 120B of the IPC is not a standalone offence and what is alleged is criminal conspiracy read with cheating cannot mean that there is any offence even as contended by the learned senior counsel Sri Hashmath Pasha is again unacceptable. The Apex Court in plethora of cases has held that offence of criminal conspiracy can be a standalone offence in certain circumstances particularly in cases where money is borrowed from the Banks.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the light of the said judgment rendered by the Apex Court, the contention of the learned senior counsel as also the judgment rendered by the Apex Court in the case of LEO ROY FREY v. THE SUPERINTENDENT, DISTRICT JAIL – AIR 1958 SC 119 to&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contend that Section 120B of the IPC cannot be laid as a main offence again is rendered unacceptable.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">24. Plethora of judgments relied on by the respective learned senior counsel representing the petitioners other than what is considered hereinabove would all be inapplicable to the facts of the case at hand and would not merit any consideration at this stage of the proceedings.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">25. In view of the preceding analysis, I do not find any merit to entertain the petitions. Accordingly, the petitions stand dismissed.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">It is made clear that the observations made in the course of this order are only for the purpose of consideration of the case of the petitioners under Section 482 of the Cr.P.C.</span></span></p>', '38975c6dbb1fd648ee4a723ff6520977.jpg', 'b643487455f0693aefacf99d60345f88.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-03', 1, '', '', '2022-10-04 00:02:58', '2022-10-04 00:02:58'),
(2265, 'BBKnHT6iDbqrgf76yoGR8IkEo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Advocate avoids execution of decree passed in 1966 by adopting unprofessional tactics. Karnataka High Court imposes cost of Rs. 5 lakhs, initiates contempt proceedings and refers the matter to Bar Council.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Champlal Vs Kantilal and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 131 of 2011 decided on 2 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice R. Nataraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The case on hand has a chequered history and\r\nin order to ward off any confusion regarding the array of\r\nparties, they shall be referred by their names. The\r\npetitioner herein is Sri. Champalal, who is since deceased\r\nand was initially represented by his wife, Smt.Keli Bai, and\r\nafter her death, was represented by his children. The facts\r\nthat can be gathered from proceedings till date are\r\nrecorded below:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. A suit in O.S.No.544/1959 was filed by Smt.\r\nA.V.Venkatamma against Smt. Lakshmamma, Sri\r\nSeethappa, Sri Sampangi, Sri Muniveerappa, Sri Phailwan <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Muniswamappa and Smt. Rukminibai before the Additional\r\nSecond Munsiff, Bangalore, for declaration of title and for\r\nmandatory injunction directing the defendant Nos.1 and 2\r\nto demolish the unauthorized construction put up by them\r\nand permanent injunction against defendant Nos.3, 5 and\r\n6 restraining them from putting up any construction on the\r\nplaint schedule land and for delivery of possession of the\r\nvacant sites to the plaintiff. Subsequently, plaint was\r\namended and prayer (e) of the plaint was substituted by\r\nseeking mandatory injunction against the defendant No.3\r\nalso directing him to demolish the unauthorized\r\nconstruction put up by him. The suit property bearing site\r\nNos.33 and 40 situate in Sy.No.8 of Jodiranganathapura\r\nvillage, Bangalore North Taluk, which were adjoining to\r\neach other and measured 45 feet x 60 feet and were\r\nbound on the East, West and South by road/s and on the\r\nNorth by Site Nos.34 and 39. The said Smt.\r\nA.V.Venkatamma claimed that the suit schedule property\r\nwas purchased by her from Sri M.Muniveerappa in terms of\r\na sale deed dated 15.12.1951. It was claimed that </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Smt.Lakshmamma and Sri Seethappa in the said suit,\r\nthough having no right, had put up structures in two\r\ndifferent portions of the suit property overnight and\r\ntherefore, the relief of declaration and other reliefs were\r\nsought for. The plaintiff further alleged that subsequent to\r\nthe filing of the suit, Sri Phailwan Muniswamappa and Smt.\r\nRukmini Bai encroached upon the suit land by putting up\r\nconstruction in the portions demarcated as \'NBPN\' and\r\n\'NPGO\' in the plaint sketch .</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The aforesaid Smt.Lakshmamma, Sri\r\nSeethappa and Smt.Rukmini Bai contested the suit and\r\ncontended that they did not know that\r\nSmt.A.V.Venkatamma was either the owner or in\r\npossession of the property demarcated as \'ABCD\' in the\r\nsketch attached to the plaint. They contended that the suit\r\nsketch was not correct. Smt.Lakshmamma claimed that\r\nshe was the owner of the vacant site bearing No.1/1\r\nsituate at Jodiranganathapura village having purchased it\r\nfrom Sri M. Muniveerappa in terms of a sale deed dated <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12.11.1953. Mr.Seethappa claimed that he purchased the\r\nsite bearing No.42 in terms of a sale deed dated\r\n27.02.1954 from Sri Nanjappa, while Smt.Rukmini Bai\r\nclaimed that she had purchased site No.3 from Sri\r\nMuniveerappa in terms of a sale deed dated 18.05.1953.\r\nThey all claimed that they had constructed respective\r\nhouses and were residing therein. Alternatively, they\r\nclaimed that they were all bona fide purchasers for value\r\nwithout notice of the sale in favour of Smt.\r\nA.V.Venkatamma. They contended that the boundaries and\r\nmeasurement of the suit schedule property differed from\r\nthe properties which were in their possession.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">27. This Court is shocked that a decree granted on\r\n18.07.1966 in R.A. No.108/1965 is not executed till date,\r\nwhich is patently due to the incessant attempts by the\r\nlearned counsel for Sri Champalal since deceased and\r\nrepresented by his legal representatives. Sri Champalal\r\nwas a purchaser pendente lite from Smt.Lakshmamma,\r\nwho was the defendant No.1 in O.S.No.544/1959, which\r\nwas filed for declaration and recovery of possession. The\r\nsaid Sri Champalal deposed in the suit as DW.4. He made\r\nno attempt to implead himself in the suit, if he had any\r\ninchoate interest. However, the suit was dismissed and\r\nlater an appeal in R.A. No.108/1965 was filed. During the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">endency of this appeal, Sri.Champalal purchased the\r\nproperty from Smt.Lakshmamma (defendant No.1 in the\r\nsuit). Even after such purchase, he made no attempt to\r\nget impleaded in the appeal. The appeal preferred in R.A.\r\nNo.108/1965 was allowed in terms of the judgment and\r\ndecree dated 18.07.1966 passed by the First Appellate\r\nCourt and consequently, the suit in O.S.No.544/1959 was\r\ndecreed. Neither Smt.Lakshmamma nor Sri Champalal\r\nfiled any Second appeal challenging the decree passed by\r\nthe First Appellate Court in R.A. No.108/1965. Though Sri\r\nChampalal filed a suit in O.S.No.2322/1983 challenging the\r\nidentity of the property claimed by the decree holder and\r\nfor perpetual injunction restraining the execution of the\r\ndecree granted in O.S.No.544/1959 and R.A.\r\nNo.108/1965, the same was dismissed in terms of the\r\njudgment dated 01.04.1987 and an appeal filed there\r\nagainst in R.F.A. No.519/87 was dismissed by this Court in\r\nterms of the judgment dated 21.09.1999. Despite this, an\r\napplication was filed by Smt.Keli Bai, the wife of deceased\r\nSri Champalal under Order XXI Rule 97 of the CPC </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">bstructing the decree was rejected in terms of the Order\r\ndated 31.08.2001 and R.F.A. No.792/2001 filed by the wife\r\nof deceased Sri Champalal was also rejected by this Court\r\non 14.03.2002. Later an avalanche of applications were\r\nfiled before the Executing Court by the wife of deceased\r\nSri Champalal, which ended in CRP No.1148/2003. By that\r\ntime, Smt. Lakshmamma had sold her property to Sri\r\nChampalal and pendente lite purchasers, namely,\r\nSmt.Lakshmamma, wife of Sri K.Papanna filed\r\nO.S.No.6353/2000 and Smt.Yellamma filed\r\nO.S.No.7616/2000 which were compromised before the\r\nCity Civil Court, Bangalore and the legal representatives of\r\nthe decree holder agreed not to execute the delivery\r\nwarrant in Ex.No.132/1980 in respect of the suit schedule\r\nproperty. This Court noticed a memo dated 12.04.1982\r\nfiled in Execution case No.132/1980 where the decree\r\nholder had pointed out the names of the persons who were\r\nin occupation of the decreed premises. Amongst them, i)\r\nSri Champalal, (ii) Sri Moahmed, (iii) Sri Chidambaram,\r\n(iv) Sri Gururaj, (v) Sri Lakkappa, (vi) Sri Purava Gowda, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(vii) Sri Balasubramanyam were claiming through\r\nSmt.Lakshmamma and Sri Govindaraj (ii) Sri Siddoji Rao\r\nKhade (iii) Sri Anand were claiming through Sri Phailwan\r\nMuniswamappa who was occupying two portions and (i) Sri\r\nRangaiah (ii) Sri Venugopal (iii) Sri Nair (iv) Sri V.Rama\r\nRao were claiming through Smt.Rukmini Bai, who was\r\noccupying two portions. Therefore, a memo was filed to\r\ndelete (i) Smt.Lakshmamma since deceased represented\r\nby legal representative, Sri Markandeya, (ii) Sri Sampangi\r\nand (iii) Sri Phailwan Muniswamappa since deceased and\r\nrepresented by his legal representative, Sri Dasappa, from\r\nthe array of parties in CRP No.1148/2003, which was\r\nallowed by this Court in terms of the Order dated\r\n13.01.2003. In the meanwhile contempt proceedings were\r\ntaken out against the wife of deceased Sri Champalal and\r\nhis Advocate, Mr.Paras Jain, for obstructing the course of\r\njustice. Smt. Keli Bai, the wife of deceased Sri Champalal\r\nwas punished while Mr. Paras Jain, learned consel,\r\nsubmitted an unconditional apology before the Division\r\nBench of this Court in CCC (Criminal) No.79/2002 owning </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">up his mistake in advising the party to file repeated\r\napplications in the Execution Petition. Notwithstanding the\r\nabove apology, Mr. Paras Jain represented legal\r\nrepresentative of deceased Smt.Rukmini Bai before the\r\nHon\'ble Supreme Court of India in Special Leave to Appeal\r\n(Civil) No.7701/2004, where he challenged the Order\r\ndated 08.01.2004 passed by this Court in CRP\r\nNo.1148/2003, on precisely the same grounds that he had\r\nunsuccessfully urged in O.S.No.2322/1983, RFA\r\nNo.519/1987 and RFA No.792/2001. The Hon’ble\r\nSupreme Court in Civil Appeal No.3060/2006 in terms of\r\nits order dated 19.07.2006, set aside the Order dated\r\n08.01.2004 passed in CRP No.1148/2003 and directed the\r\nExecuting Court to decide the question that arose before it.\r\nSri Suresh Babu R., the son of Sri Raja Rao and grandson\r\nof Smt.Rukmini Bai, conceded to the claim of the legal\r\nrepresentatives of the decree holder and withdrew the\r\nobjections raised against the executability of the decree.\r\nThus, the differences between the legal representatives of\r\nthe decree holder and judgment debtors were completely </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">addressed in as much as Smt.Lakshmamma and Sri\r\nPhailwan Muniswamappa did not challenge the decree in\r\nR.A.No.108/1965 while Sri Sampangi did not contest the\r\nsuit in O.S.No.544/1959 and Sri Muniveerappa was a\r\nformal party and the suit against Sri Seethappa was given\r\nup in R.A. No.108/1965. The legal representative of\r\ndeceased Smt. Rukmini Bai, namely, Sri Suresh Babu R.,\r\naccepted the title of the legal representatives of the decree\r\nholder and conceded to their claim, thus drawing a curtain\r\nover a protracted litigation. Following this, the Executing\r\nCourt issued a delivery warrant to deliver possession of the\r\ndecreed property with police help. Smt. Keli Bai, the wife\r\nof deceased Sri Champalal again attempted to resurrect\r\nher claim by challenging the order issuing delivery warrant\r\nby filing this revision petition. The grounds urged in\r\nsupport of the petition were either considered by the\r\nCourts in the earlier rounds of litigation or are such that\r\nthey do not deserve any consideration. Nonetheless, the\r\nsame are considered to avoid being categorized as a nonspeaking order.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. Thus, the Revision Petition is liable to be\r\nrejected on all counts and is accordingly rejected.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. The role of the learned counsel for the\r\npetitioners, Mr. Paras Jain, in protracting the litigation is\r\nwrit large on the record and he has pushed the case this\r\nfar by setting up legal representatives of deceased\r\nSmt.Rukmini Bai to challenge the executability of the\r\ndecree passed in R.A. No.108/1965 on the grounds that he\r\nhad unsucessfully urged while he represented Sri\r\nChampalal. This is gross violation of his apology submitted\r\nbefore the Division Bench of this Court in CCC (Criminal)\r\nNo.79/2002. The apology tendered before this Court is\r\nclearly not honest but was designed to escape from being\r\nhauled up for contempt. Mr. Paras Jain, by his egregious\r\nacts has ensured that the fruits of the decree in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">R.A.No.108/1965 is not reaped from the year 1966 till date\r\nand has deprived the rent that the property would have\r\nearned over the years. Hence, he deserves to be penalised\r\nwith exemplary costs payable to the legal heirs of the\r\ndecree holder. This apart, notwithstanding his apology\r\ntendered before the Division Bench of this Court in CCC\r\n(Criminal) No.79/2002, he has continued his contumacious\r\nacts by representing the legal representative/s of deceased\r\nSmt.Rukmini Bai before the Hon’ble Supreme Court in Civil\r\nAppeal No.3060/2006, that too after tendering an apology\r\nbefore the Division Bench of this Court in CCC (Criminal)\r\nNo.79/2002 and despite stating that he had realized his\r\nmistake and despite undertaking that he would henceforth\r\nnot abuse the process of Court or hinder the flow of justice\r\nin future in any manner in any proceedings. The conduct of\r\nthe learned counsel for petitioners therefore not only\r\namounts to misconduct under the Advocates Act, 1961,\r\nbut also is liable to be prosecuted for contempt of this\r\nCourt for violating the undertaking given before a Division\r\nBench of this Court in CCC (Criminal) No.79/2002 and the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cognizance of such contempt is taken by this Court in\r\nexercise of the power vested in it under Article 215 of the\r\nConstitution of India.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The Revision Petition is dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5b7d8983981cd1950dc61ce11d441af9.JPG', 'c9bb7b12025184643aa3d33b8b99702e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-04', 1, '', '', '2022-10-04 23:13:40', '2022-10-05 15:51:01');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2266, 'oX1BbykGxh0fOqwDVvm5BFxww', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Writ Court cannot direct the Government to frame scheme under Article 162 of the Constitution especially when the parties have alternative remedy for the redressal of their grievances. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Edurkala Ishwara Bhat and others Vs Raghaveshwara Bharathi Swamiji and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. 25124 of 2016 decided on 29 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice Alok Aradhe and Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. Facts giving rise to filing of these petitions\r\nin nutshell are that the Math was established in 8th\r\nCentury and was known as Raghottama Math and is\r\ninvolved in propagation of tenets of Sanathan Dharma\r\nand Indian Philosophy and is an institution\r\npropagating social, religious philosophical and\r\ncharitable issues. The Math is headed by a </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Mathadhipathi viz., respondent No.2 who is the head\r\nof spiritual fraternity and has to perform religious of a\r\nreligious teacher. It is his duty to practice and\r\npropagate the religious tenets. The affairs of Math /\r\nReligious institutions were being regulated by Mysore\r\nReligious and Charitable Institutions Act, 1927. The\r\nsaid Act was repealed by Karnataka Hindu Religious\r\nInstitutions and Charitable Endowments Act, 1997\r\n(hereinafter referred to as \'the 1997 Act\' for short). The\r\n1997 Act was enacted in view of long standing public\r\ndemand to bring about a uniform law to provide for\r\nregulation of charitable endowments and Hindu\r\nreligious institutions in the State</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. Thus, the 1997 Act does not apply to a\r\nMath or Temple attached to or managed by Math. The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respondent No.1 took over as Matadhipathi of the\r\nMath from 18.04.1999. A division bench of this court\r\nvide judgment in SRI.SAHASRA LINGESHWARA\r\nTEMPLE v. STATE OF KARNATAKA AND\r\nANOTHER1, struck down the Act as unconstitutional.\r\nAgainst the said judgment of Division Bench of this\r\ncourt, a Special Leave Petition has been filed before\r\nHon\'ble Supreme Court in which judgment rendered\r\nby a division bench of this court has been stayed. The\r\nAct therefore, has revived.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The petitioners thereafter claiming to be the\r\ndevotees of the Math have filed this petition on\r\n25.04.2016, inter alia on the ground that respondent\r\nNo.1 has committed malpractices and has rendered\r\nhimself ineligible to continue as Peetadhipathi /\r\nMahant.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. We have considered the submissions made\r\nby learned counsel for the parties and have perused\r\nthe records. The 1997 Act was struck down by a\r\ndivision bench of this Court in W.A. No.3440/2005.\r\nIn Civil Appeal No.5924/2008, the Hon\'ble Supreme\r\nCourt of India has stayed the operation of the\r\njudgment of the Division Bench of this Court and has\r\npermitted to enforce the provisions of the Act, except\r\nprovision of Section 25 of 1997. The State\r\nGovernment thereafter constituted a High Level <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Committee to examine the implementation of the\r\njudgment and the issue in detail. The said High Level\r\nCommittee submitted its report and on consideration\r\nof the report, the State Government amended the\r\n1997 Act by an Act No.27 of 2011. The 1997 Act does\r\nnot apply to the provisions of the Maths. There is a\r\nconscious omission on the part of the Legislature in\r\nkeeping the Maths out of the purview of the Act,\r\nwhich is also evident from statement of objects and\r\nreasons of Karnataka Act No.27 of 2011 namely the\r\nAmendment Act. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Thus, the legislative intention to exclude the\r\nMaths is manifest from the statement of objects and\r\nreasons of the Amendment Act<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. The hall mark of our Constitution is to\r\nbuild a society to attain justice and erase inequities\r\nflowing from religion, gender, caste and privileges. In\r\nthis background, Articles 25 to 30 are incorporated in\r\nthe Constitution. Article 25(1) of the Constitution\r\nguarantees the freedom of conscience, the right to\r\nfreely profess, practice and propagate religion subject <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The scope and ambit of Article 26 was\r\nconsidered by a seven Judge Bench of Supreme Court\r\nin THE COMMISSIONER, HINDU RELIGIOUS\r\nENDOWMENTS MADRAS v. SRI LAKSHMINDRA\r\nTHIRTHA SWAMIAR OF SRI SHIRUR MUTT16 and it\r\nhas been held that Article 26 contemplates not merely\r\na religious denomination but also a section thereof,\r\nthe Math or the spiritual fraternity represented by it\r\ncan legitimate the come within the purview of Article\r\n26. Therefore, a Math is entitled to protection of\r\nArticle 26 of the Constitution of India.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. Now, we proceed to examine whether in the\r\nobtaining factual matrix, a case has been made out in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">exercise of extraordinary discretionary jurisdiction\r\nunder Article 226 of the Constitution of India, to issue\r\na writ of mandamus to direct the State Government to\r\nframe a scheme to regulate the affairs of respondent\r\nNo.2 Math.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. In the peculiar fact situation of the case,\r\nthis Court is not inclined to exercise the extraordinary\r\njurisdiction under Article 226 of the Constitution of\r\nIndia and to issue a writ of mandamus to direct the\r\nState Government to exercise its power under Article\r\n162 of the Constitution of India, to frame a scheme for\r\nadministration of the Maths. The Legislature has\r\nexpressly excluded the Maths and Temples attached <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to the Maths, as they are headed and managed by\r\nmathadipathis. In any case, the petitioners have an\r\nalternative efficacious remedy under Section 92 of the\r\nCode of Civil Procedure. Therefore, we are not\r\ninclined to exercise the extraordinary discretionary\r\njurisdiction under Article 226 of the Constitution of\r\nIndia, and therefore, writ petition is held to be not\r\nmaintainable.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 27. In view of aforesaid conclusion recorded by\r\nus, no orders are necessary to be passed on\r\nI.A.No.2/2016, an application seeking recall of the\r\norder dated 24.04.2003, by which the petitioner was\r\npermitted to submit a representation to Chief\r\nSecretary, Government of Karnataka.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> In view of preceding analysis, we do not find any\r\nmerit in the writ petition. However, liberty is reserved\r\nto the petitioners to take recourse to the remedy\r\nprovided under Section 92 of the Code.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In view of disposal of the main petition itself,\r\npending I.As do not survive for consideration, the\r\nsame stand disposed of. The interim order stands\r\nvacated.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n With the aforesaid liberty, the petition is\r\ndisposed of. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '73fc5029d0047debda9495769a05838c.jpg', 'dac7aac54b6d5e3437173ed4a7103b16.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-07', 1, '', '', '2022-10-04 23:25:31', '2022-10-07 03:31:54'),
(2267, '3zs4tUOWDlpeVTpf6SIOheK9y', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Land Grant Rules,1969. When temporary lease of land is confirmed upon expiry of the lease period and on payment of fixed price, the Deputy Commissioner cannot impose condition of non-alienation. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shalinig B Hegde Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 37404 of 2013 decided on 19 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N S Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. In the year 1958, the Tahsildar, in exercise of his\r\npowers under Rule 2(5) of the South Canara District Lease\r\nof Land for Cashew Cultivation Rules, 1957, granted the\r\nlands bearing Sy.No.296/A measuring 8.46 acres and\r\nSy.No.279/2 measuring 0.64 acres in Shiriyar Village and\r\nthe land bearing Sy.No.145/A measuring 0.05 acres in\r\nYedthady Village of Udupi Taluk on a lease.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Thus, as per the terms of the grant, the grantee had\r\nthe option of acquiring permanent ownership of the land\r\non the expiry of 30 years on payment of the value of the\r\nland fixed at the time of the grant itself which was in fact\r\nfixed at Rs.100/- per acre.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n5. However, by an order dated 10.05.1999, the\r\nRevenue Authorities demanded a sum of Rs.35,000/- per\r\nacre for the grant of permanent ownership and this\r\nresulted in filing of WP No.20975/1999 before this Court\r\nand this Court by order dated 02.07.2003 quashed the\r\ndemand of Rs.35,000/- per acre and remitted the matter\r\nto the Deputy Commissioner to reconsider the same after\r\naffording an opportunity to the petitioner and also with a\r\ndirection to determine the market value in accordance with <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the order already ended in WP No.5796/1995 and the\r\nconnected matters.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. The petitioner accepted the determination of the\r\nmarket value and has also remitted the sum determined\r\nby the Deputy Commissioner and also produced a receipt\r\nat Annexure-G. The petitioner, however, aggrieved by the\r\nimposition of the condition that the lands should not be\r\nalienated for a period of 25 years has preferred this writ\r\npetition.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">14. It is not in dispute that when the land was granted\r\non the basis of a lease in the year 1958, a clear term was\r\nstipulated that the grantee had an option to acquire\r\npermanent ownership on the expiry of 30 years by paying\r\na sum of Rs.100/- per acre. Once, the term of the grant\r\nitself stipulated that after a period of 30 years, the grantee\r\ncould become the permanent owner of the land, it is quite, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">but, obvious that no further period of non alienation could\r\nbe imposed. The period of 30 years as a lessee by the\r\ngrant order, was by itself designed to ensure that the\r\nlands were utilized for the purpose of which it was being\r\nleased and if that term was fulfilled, the grantee was\r\nentitled to permanent ownership. This term by itself\r\nindicates that the only intention of the grant was to confer\r\nthe ownership, if the condition imposed in the grant had\r\nbeen fulfilled.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. As could be seen from the said Rule, a specific\r\nprovision is made for confirmation of the land which were\r\nleased temporarily before coming into force and the said\r\nRule clearly stipulates that if all the conditions of the lease\r\nhave been complied with, the lands would be granted by\r\nthe Deputy Commissioner on payment of the price fixed by\r\nhim, in accordance with Rule 12. The said rule only\r\nprovides for fixation of the price and does not provide the\r\nDeputy Commissioner to impose any further conditions.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. It is also to be kept in mind that when a person is\r\nbeing conferred with permanent ownership as promised to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">him in the order of grant made 30 years ago, that promise\r\ncannot be diluted by imposing a condition that he shall not\r\nalienate the land for a further period of 25 years. This\r\nvirtually amounts to altering the terms of the grant 30\r\nyears after it was accepted by both parties, which is\r\nclearly impermissible.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>19. I am therefore of the view that the imposition of the\r\ncondition prohibiting the lands to be alienated for a period\r\nof 25 years as per the Clause 4 of Annexure-C and\r\nClause 7 of the Saguvali Chit - Annexure-H are wholly\r\nillegal and they are accordingly quashed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n20. The writ petition is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'dbdd60671fd62f8a69dff73e15227372.JPG', '1adcec97556f18a4cdfbb1fdb5988da5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-10', 1, '', '', '2022-10-04 23:39:03', '2022-10-10 12:51:40'),
(2268, 'xFLQ3NyVoLpXm3txgLujb0HhR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Merely because a client does not succeed in the matter and favourable orders were not passed in his favour, the client cannot make out a case that fraud and offence under Sections 406 and 420 of IPC has been committed by his Advocate. Karnataka High Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K S Mahadevan Vs Cyprian Menezes and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 54069 of 2017 decided on 9 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. A private complaint in PCR No.30/2017 has been filed by\r\nthe first respondent - complainant alleging that the\r\npetitioner has held out himself to be a very Senior\r\nAdvocate in Bangalore and having connections with <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Senior Advocate of the Supreme Court and had\r\nrepresented that he could put across the complainant to\r\nsuch Senior Advocates who could represent the matter\r\nand obtain favourable orders. It is on that basis, various\r\namounts were paid to the petitioner to be paid to the\r\nAdvocate appearing before the Supreme Court as also to\r\nenable the petitioner to travel to Supreme Court and\r\nappear in the said matter.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. It is alleged that on 18.04.2016, when the matter was\r\ntaken up for hearing before the Apex Court and at the\r\nend of the day when the complainant called the\r\npetitioner enquiring about the status of the matter, the\r\npetitioner did not inform him properly and as such, the\r\ncomplainant suspected the bonafides of the petitioner and\r\nit is on that basis a criminal complaint came to filed in the\r\naforesaid PCR seeking for action to be taken against the\r\npetitioner.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">8. In the present matter, allegations have been made by a\r\nclient against an Advocate alleging that since he did not\r\nobtain favourbale orders as contended by him, offences\r\nunder Sections 406 and 420 of IPC have been committed.\r\nA perusal of the complaint would indicate that the\r\nstatement attributed to the petitioner is that the\r\npetitioner would introduce and or refer the matter to an\r\nAdvocate in Delhi and also that the petitioner would\r\nappear before the Apex Court in a matter of the\r\ncomplainant. An advocate can only appear and make his\r\nbest efforts in the matter. No advocate can either state </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">or hold out that he would obtain favourable orders nor\r\ncould a client believe that an Advocate will definitely\r\nobtain favourable orders just because he has made\r\npayment of the fees to the Advocate.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. Merely because a client were not to succeed in the matter\r\nand favourable orders were not passed in favour of that\r\nparticular client, the said client cannot make out a case\r\nthat there is a fraud which has been committed by the\r\nAdvocate and offence under Sections 406 and 420 of IPC\r\nwhich has been committed by an Advocate. That would\r\nlead to disastrous consequences. It is for all litigants to\r\nunderstand that an Advocate can only make best efforts\r\nin the matter and the case would be decided on the basis\r\nof merits. In a Adversarial system like that in our Country\r\nwere one party initiates a litigation against the other it is\r\nbound to happen that one will win and other will lose\r\nwhich is on the basis of the facts of the case and the law\r\napplicable.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Whoever the Advocate may be, the outcome depends on\r\nthe facts and the law applicable thereto. Hence, the\r\npayment of fees, the amount of fees is also not relevant\r\nfor the outcome of the matter that is a private matter\r\nbetween the client and the Advocate.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. In the above background, the allegations now being made\r\nthat since the huge amount of money has been paid as\r\nfees to the Advocate, the Advocate had to obtain\r\nfavourable orders, it is not sustainable nor it would\r\namount to an offence under Section 406 and 420 of IPC.\r\nNo grounds have been made out in the compliant. The\r\ncriminal proceedings being an abuse in the process of the\r\nCourt. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i. The petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '95807f09a95293ade6c450619f53779c.JPG', '6fa593e7bb8642b2f8c345d05747e97f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-06', 1, '', '', '2022-10-05 15:23:28', '2022-10-06 13:13:08'),
(2269, 'qLfvuiN3dyJsV8kOwPrk4aoGj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Elections are the essence of democracy\'\'. Karnataka High Court directs the Govt to provide reservation for women in the wards having greater women population and to hold elections at the earliest.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>V. Srinivas Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 17191 of 2022 decided on 30 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The BBMP is the body constituted and was\r\nestablished under the provisions of Karnataka Municipal\r\nCorporations Act, 1976. The Bengaluru City originally comprised\r\n198 wards, which was determined under the KMC Act, 1976. The\r\nelection to the councilors of the BBMP was held in September,\r\n2020 and term of the councilors was for a period of five years </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which expired on 10.9.2020. Since the Government did not\r\nconduct elections after expiry of terms of the councilors, the\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 3. For effective administration of the BBMP, the state\r\ngovernment enacted the Bruhat Bengaluru Mahanagara Palike\r\nAct, 2020, which came into effect from 11.1.2021. Section\r\n7(3)(a) of the Act, 2020 specifies that the Government shall by\r\norder determine the wards into which the Corporation shall for\r\nthe purpose of its election, be divided into not less than 225 but\r\nmore than 250 wards. Section 8(2) to 8(4) of the Act, 2020\r\nprovide for reservation of seats for SC/ST, backward classes and\r\nwomen.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The State Government constituted Dr.Justice K\r\nBhaktavatsala Commission of Enquiry for Reservation to Other\r\nBackward Classes in Local Bodies across the State of Karnataka.\r\nThe Commission after conducted an enquiry submitted a report\r\ndated 21.7.2022 that the reservation of 1/3rd of total seat in\r\nfavour of OBCs in local body elections in the State of Karnataka\r\nis justifiable and the persons belonging to the minority\r\ncommunity other than the Muslim community are not able to\r\navail the benefit of political reservation in the local body\r\nelections. Thereafter, the State Government carried out the\r\nexercise of ward reservation on the basis of the report submitted\r\nby the Commission of Enquiry and issued the impugned\r\nnotification notifying the ward wise reservation for 243 wards of\r\nBBMP out of which, 81 wards are reserved for backward classes\r\nand 120 wards are reserved for women randomly. Taking\r\nexception to the same, these writ petitions have been filed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. The points that arise for consideration are follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i) Whether the impugned notification issued by the\r\n State Government on the basis of the report submitted by\r\n the Commission of Enquiry reserving 81 wards for other\r\n backward classes satisfies the triple test enumerated in the\r\n case of K Krishnamurthy (supra)?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\nii) Whether the reservation of majority of the wards for\r\n women in the assembly constituencies held by the\r\n opposition parties is smacked with malafides? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Reg. point No.(i):<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. The conclusion arrived by the Commission of Enquiry\r\nthat 44.40% of the total population of the State of Karnataka\r\nincluding minorities belong to other backward classes is not\r\nbased on any empirical data. The Commission was required to\r\nconduct a rigorous investigation into the pattern of the\r\nbackwardness that acts as a barrier to political participation\r\nwhich are indeed quite different from patterns of disadvantages\r\nin the matter of access to education or employment. Such an\r\nexercise is not forthcoming from the report submitted by the\r\nCommission of Enquiry nor any material is placed by the State\r\nGovernment that the Commission of Enquiry had conducted\r\nsuch an enquiry or the report was based on the empirical date\r\nfurnished by the State Government . The Commission was\r\nrequired to find out which of the communities are backward in\r\nthe local bodies across State of Karnataka on the basis of\r\nempirical data and thereafter opine that providing reservation of\r\n33% of total seats in favour of OBCs including the minorities in\r\nthe local bodies is justifiable. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">23. The conclusion that large numbers of castes and\r\ncommunities come under the category of A and B of other\r\nbackward classes and that they are still socially and politically </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">backward is alleged to be based on the data pertaining to urban\r\nand local body elections held in the State of Karnataka in the\r\nyear 1996, 2001, 2010 and 2015. The conclusion that 44% of\r\nthe state population consists of backward class including\r\nminorities is imaginary and the same is contrary to the triple\r\ntest enumerated in the case of K Krishnamurthy (supra). Hence,\r\nI am of the view that the notification issued by the State\r\nGovernment providing reservation for backward classes on the\r\nbasis of the report submitted by the Commission of Enquiry is\r\ncontrary to the triple test set down by the Hon\'ble Supreme\r\nCourt.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Reg. point No.(ii)<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36. Section 8(3) of the Act specifies that as nearly as\r\nmay be 1/3rd of the total seats to be filled by a direct election to\r\nthe corporation shall be reserved for persons belonging to\r\nbackward classes. Though it is not a constitutional mandate ,\r\nallocating of seats to backward classes is a statutory requirement\r\nand the same cannot be dispensed on the grounds of imminence\r\nof elections which would otherwise deprive them of participating\r\nin the decision making process of the BBMP. It is a settled law,\r\nthat if a statute requires a thing to be done in a particular\r\nmanner , the same shall be done in that particular manner and\r\nnot otherwise.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>37. The Hon’ble Supreme Court in SLP No.15181/2020 (\r\nState of Karnataka -vs- M Shivaraju and others) is monitoring\r\nthe election process to councilors of BBMP and has not issued\r\nany direction to the state government to dispense with\r\nallocation of seats to backward classes on the ground of\r\nimminence of elections.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>40. The elections are the essence of democracy and the\r\nelections which are long over due has deprived the voters of\r\nBengaluru City in electing their representatives, thus causing\r\ninconvenience and hardship.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>For the foregoing discussion, the impugned notification\r\nissued is in contravention of the triple test enumerated by the\r\nHon’ble Supreme Court in the case of K.Krishnamurthy and\r\nreiterated in the case of Kishan Gawali (supra), and imminence <span style=\"font-size: 1rem; font-family: var(--bs-font-sans-serif);\">of elections cannot be a ground to dispense with allocating seats\r\nto backward classes which is a statutory requirement.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 1rem; font-family: var(--bs-font-sans-serif);\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 1rem; font-family: var(--bs-font-sans-serif);\"><b> i) Writ petitions are allowed;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f4d54ee69996bf01dc07b217bf7c991a.jpeg', 'abb35fdbad92962f56a521c3d01c79a4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-10', 1, '', '', '2022-10-07 01:17:02', '2022-10-10 06:50:32'),
(2270, 'IUQft60iqriThmmz0viU4iXNM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Standing Counsel of a statutory body cannot be booked for cheating for the adverse Court orders. Karnataka High Court admonishes the Registrar of RGUHS.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shivakumar Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 7422 of 2022 decided on 16 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts that have driven the petitioner to this Court\r\ncalling in question the registration of crime, as borne out from the\r\npleadings, in brief, are as follows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">The petitioner, a practicing Advocate put in a service in the\r\nprofession for 27 years has been representing the 2nd respondent\r\n/Rajiv Gandhi University of Health Sciences, Karnataka (‘the\r\nUniversity’ for short), the complainant herein for over 15 years. The\r\npetition narrates that there has been no blemish whatsoever\r\nagainst the petitioner in his appearances for the University before\r\nthis Court. Criminal Petition Nos. 101638 of 2021, 100998 of 2022,\r\n101172 of 2022, 101186 of 2022, 101228 of 2022, 101258 of\r\n2022, 101368 of 2022, 101369 of 2022, 101370 of 2022, 101374\r\nof 2022 and 101384 of 2022 were either filed or pending before the\r\nDharwad Bench of this Court seeking quashment of proceedings in\r\nSpl.C.No.126 of 2012 registered against several accused alleging\r\ntheir involvement of malpractice in the conduct of Post Graduate\r\nEntrance Test (‘PGET-2010). Those accused against whom criminal\r\ncases were registered were also proceeded departmentally. In the\r\ndepartmental enquiry, it appears, that those accused were all\r\nexonerated after a full blown enquiry. The issue in the enquiry is\r\nwhat concerns this Court in the case at hand. Based upon the said\r\nexoneration in the enquiry, the afore-quoted criminal petitions were\r\nfiled before the Dharwad Bench of this Court. A Co-ordinate Bench </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of this Court allowed those petitions and quashed criminal\r\nproceedings that were pending, relying upon a judgment rendered\r\nby a Co-ordinate Bench of this Court in Writ Petition No.19700 of\r\n2018 decided on 27.07.2021. In those cases, the accused were\r\ndifferent. The State of Karnataka was represented by the learned\r\nHigh Court Government Pleader. The 2nd respondent who was\r\narrayed as Vice-Chancellor of Rajiv Gandhi University of Health\r\nSciences, Karnataka had either been represented or the Court\r\ndirected the petitioner herein to accept notice for the University. It\r\nis averred in the petition that owing to the fact that the petitioner\r\nwas representing the University in the cases before this Court for\r\nlong, the said direction was issued and accepted by the petitioner.\r\nOrders were passed on 7th, 18th, 20th and 21st April, 2022 allowing\r\nthose petitions following the judgment rendered by a Co-ordinate\r\nBench in Writ Petition No.19700 of 2018.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. It now becomes necessary to notice the offences alleged\r\nagainst the petitioner, with reference to the sections of the IPC.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Section 415 directs whoever by deceiving any person,\r\nfraudulently or dishonestly induces the person so deceived to\r\ndeliver any property to any person becomes open for such\r\npunishment under Section 417. Who has deceived whom in the\r\ncase at hand is not even known and likewise who has induced\r\nwhom is not even alleged. Section 417 of the IPC is alleged in thin\r\nair.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Section 420 of the IPC deals with cheating and dishonestly\r\ninducing delivery of property and has its roots in Section 415\r\n(supra) and would also get subsumed for the reasons rendered in\r\nSection 417.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The other offence alleged is Section 196 of the IPC. Section\r\n196 of the IPC deals with using evidence known to be false and\r\ndirects whoever corruptly uses or attempts to use as true or <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">genuine evidence which he known to be false or fabricated. What\r\nthe petitioner has done in the case at hand is accepting or\r\nappearing in cases where the issue in those cases stood covered by\r\na judgment rendered by this Court which had become final.\r\nTherefore, Section 196 of the IPC cannot even be seen to be\r\nalleged against the petitioner.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Section 201 of the IPC deals with causing disappearance of\r\nevidence of offence or giving false information to screen the\r\noffender. It is beyond comprehension as to how this offence is\r\nalleged against the petitioner who has appeared before Court of law\r\nand the Court recorded his name in a matter that stood covered by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the earlier judgment</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>This section deals with false personation for purpose of act or\r\nproceeding in suit or prosecution. The Section directs that whoever\r\nfalsely personates another. The petitioner has not impersonated\r\nanybody. His name does figure as appearing for the 2nd\r\nrespondent on it being recorded by the Court. Therefore, all these\r\noffences that are alleged are alleged without any basis and it is on\r\nthe face of it mischievous and preposterous act of the University to\r\nsay the least.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. It becomes germane to notice the action of the\r\nUniversity, which is a State under Article 12 of the Constitution of\r\nIndia, in registering such complaint against its panel counsel\r\nwithout conduct of any preliminary enquiry to get to know the\r\nveracity of the truth in the allegations and make reckless\r\nallegations against the petitioner. The University cannot indulge in\r\nsuch acts of registering crime against the counsel who appears\r\nbefore the Court on its behalf and when the result in the suit or\r\npetition goes against the University. Merely because cases are lost, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the counsel cannot be alleged of fraud, cheating, impersonation or\r\nof other reckless allegations that are made.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18. As observed hereinabove, the allegations in the complaint\r\nsans complete substance. Therefore, the University is hereby\r\ncautioned not to indulge in such acts by registering complaints in a\r\nhottest haste and maligning the names of Advocates who appear\r\nfor them, after appointing them to its panel to represent the Courts,\r\nunless the University has adequate information or substance which\r\ncan prima facie demonstrate that there has been fraud played by its\r\npanel counsel or the University has been cheated by the panel\r\ncounsel. The act of the petitioner in representing the University\r\nbefore the Court and the Court allowing the petitions following an\r\nearlier judgment holding it to be covered can never lead to\r\nregistration of the crime for the aforesaid offences. The University\r\nor the Registrar who has now sought to explain out the\r\ncircumstances, is admonished and is directed to exercise caution\r\nwhile registering such reckless complaints in hottest haste. Any\r\nsuch iteration of the kind of haste, as seen in the case at hand,\r\nwould be viewed seriously.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The Criminal Petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5def87e00301e18fcb1bd0ebcb08734a.JPG', '534b033e93c9a759279f5cc2c2e4b218.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-07', 1, '', '', '2022-10-07 15:28:34', '2022-10-07 07:34:37');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2271, 'KYCWDYXsNzaq7ho2WoEqDkHNH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Female foeticide by polyclinics/diagnostic centres. Karnataka High Court directs Govt to notify Appropriate Authorities to register the crimes committed under the Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Arundathi Poly and others Vs The State Appropriate Authority<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 3069 of 2022 decided on 15 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasana.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Both these petitions call in question proceedings in\r\nC.C.No.3917 of 2021 pending before the JMFC, Mandya instituted\r\nby the respondent/State on registration of a private complaint\r\ninvoking Section 200 of the Cr.P.C. for offences punishable under\r\nSections 23, 23(1), 23(2), 20(1), 20(2) and 20(3) of the Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex\r\nSelection) Act, 1994 (‘the Act’ for short). <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Brief facts leading to the filing of the present petitions, as\r\nborne out from the pleadings, are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> M/s Arundathi Poly Clinic & Diagnostics is the 1st petitioner\r\nand its staff are other petitioners in Criminal Petition No.3069 of\r\n2022 and M/s.Namma Mane Poly Clinic is the 1st petitioner and its\r\nproprietor and Manager are petitioners 2 and 3 in Writ Petition\r\nNo.7573 of 2022. The 1st petitioner in both the petitions are private\r\npolyclinics claiming to be doing medical services to its patients who\r\ncome to them. On 11-10-2021 the State Cell constituted under the\r\nAct, its Deputy Director received a complaint from the District\r\nHealth and Family Welfare Officer, Mandya District that victim by\r\nname Mrs. Sulochana had complained that an illegal Medical\r\nTermination of Pregnancy (‘MTP’) was conducted on a pregnant\r\nwoman by name Mrs. Mangala in order to conduct sex selection <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">abortion. Later it transpires that the respondent-Nodal Officer\r\nunder the Act visited the premises and found several instances of\r\nsuch abortion taking place with the connivance of the petitioners in\r\nthese petitions. On registration of the private complaint and\r\ncognizance being taken by the learned Magistrate, the petitioners\r\nhave knocked the doors of this Court in the subject petitions.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The only issue that drives these petitions to this Court is\r\nthat the search conducted or the proceedings instituted are not by\r\nthe competent authority or the appropriate authority under the Act.\r\nTherefore, it becomes germane to notice certain provisions of the\r\nAct which empower constitution of appropriate authority or\r\ndelegation of power to such authority</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">10. The petitioners in Criminal Petition No.3069 of 2022 are\r\nDiagnostics centre or clinic registered under the Act at Bannur and\r\nK.R.Pete in Mysore and Mandya Districts and the 1st petitioner in\r\nWrit Petition No.7573 of 2022 is a Polyclinic situated in Mandya\r\nCity. Therefore, both these would come under the delegated\r\npowers as ascribed in the Official Memorandum (supra). Insofar as\r\nit pertains to Criminal Petition No.3069 of 2022, an information is\r\nreceived that accused No.3 is conducting illegal termination of\r\npregnancy on a woman and immediate action is to be taken against\r\naccused No.3. Therefore, a team comprising of persons who were\r\nempowered to search, searched the premises of accused No.3 and\r\nseized all MTP related materials. On 11-10-2021 again information\r\nwas received that termination of pregnancy is being conducted on\r\npregnant woman by the staff of the clinic. Search being conducted\r\nleads to registration of crime against those clinics by the State\r\nNodal Officer and Deputy Director appointed under the Act in terms </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of Official Memorandum above mentioned. The date of registration\r\nof crime is 24-11-2021.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>If the allegations against the petitioners are noticed, it becomes\r\nunmistakably clear that the acts performed by the petitioners or its\r\ncohorts are so abhorrent which would defeat the very object of the\r\nAct. Merely because the illegal determination has resulted in, it\r\nbeing a girl, illegal termination of pregnancy being carried out by\r\nthe petitioners, is the allegation against them, in both these cases.\r\nThe appropriate authority empowered to register the complaint has\r\nin fact registered the complaint against the petitioners.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. The other submission of the learned counsel for the\r\npetitioners that they are covered by the judgment rendered by this\r\nCourt in DHONDIBA ANNA JADHAV MEMORIAL HOSPITAL\r\nAND ANOTHER v. STATE OF KARNATAKA in Criminal Petition\r\nNo.101392 of 2019 decided on 21st February 2022, is\r\ninapplicable to the facts of the case as there is a clear delegation of\r\npower under the Act in favour of the authority who has now\r\nregistered the crime. The delegation is specifically for the Districts <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of Mysore and Mandya. The case in Criminal Petition No.101392 of\r\n2019 was concerning a hospital which is alleged to have violated\r\nthe provisions of the Act at Dharwad District and for the District of\r\nDharwad, there was no official memorandum or notification issued.\r\nIt is in that light the order was passed by this Court on 21st\r\nFebruary 2022 annulling the proceedings therein holding that the\r\nTaluk Health Officer who had registered the crime therein was not\r\nthe competent officer who could have registered the crime without\r\nthere being any notification or delegation of power under the Act.\r\nThe case was rendered on admitted facts therein. The facts\r\nobtaining in the case at hand are clearly distinguishable without\r\nmuch ado as they are entirely different. Therefore, the solitary\r\nsubmission of registration of crime by the incompetent authority is\r\nrendered unacceptable. The allegations made in the complaint as\r\nobserved hereinabove are so grave that the alleged offenders\r\ncannot be permitted to get away with the technicalities. It is the\r\nduty of the State Government to bring out such notifications in\r\nfurtherance of the Act to every District of the State or bringing\r\nabout a comprehensive notification under the Act depicting </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appropriate authorities or Advisory Committees as offenders of this\r\nnature should not be permitted to get away on technical lines.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 13. Since the issue concerned has now become a burning\r\none, as also the fact of mushrooming of polyclinics or diagnostic\r\ncentres, is not only restricted to the metropolis but have percolated\r\ninto the cities as well, and them being engaged in doing acts\r\ncontrary to law, is now in public domain. It is high time for the\r\nState to take swift action and bring about appropriate notifications\r\nwithout any loss of time, as the perpetrators of such alleged\r\nillegalities should not be permitted to get over penal action on such\r\npleas. It is time now for the Government to act under the Act.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 1rem; font-family: var(--bs-font-sans-serif);\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 1rem; font-family: var(--bs-font-sans-serif);\"><b>(i) The Criminal Petition 3069 of 2022 stands dismissed\r\nand Writ Petition 7573 of 2022 also stands\r\ndismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'dd5d240e66d6450f495b8fb5b34d8c2a.JPG', '244ae1639ade8c1c2a8f0ef1fbe8a59c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-08', 1, '', '', '2022-10-07 15:36:39', '2022-10-08 15:17:47'),
(2272, 'D5j65rrHCNvOax89RbrsDTn7x', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheating in the name of online wellness therapy. Karnataka High Court refuses to quash criminal proceedings against ‘Tinder Lurer’.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sanjana Fernandes Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 8929 of 2021 decided on 2 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court calling in question\r\nproceedings in C.C.No.22955 of 2021 pending on the file of the\r\nI Additional Chief Metropolitan Magistrate, Bangalore arising\r\nout of crime in Crime No.245 of 2021 registered for offences\r\npunishable under Sections 66(C), 66(D) and 67(A) of the\r\nInformation Technology Act, 2000 and Sections 419 and 420 of\r\nthe IPC<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Brief facts, as projected by the prosecution, are as\r\nfollows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The complainant is an information technology\r\nprofessional. The petitioner and the complainant come in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contact with each other with a dating app ‘Tinder’. Both of\r\nthem get acquainted to each other and it appears that on a\r\nparticular night when they were on chat, the complainant\r\nclaims to be completely stressed and expresses such stress to\r\nthe petitioner. The petitioner then represents that she has an\r\ninstagram page “positivity-for-a-360-life” and she is a Wellness\r\nTherapist who would advocate and promote general well being\r\nof mind, body and soul. The complainant on the representation\r\nbeing made by the petitioner with regard to her qualification in\r\nthe therapist goes on transferring amounts on class to class\r\nbasis. After the end of the class, the complainant claims to be\r\nsatisfied of the class and then transferred the money.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. This goes on throughout the period the country was\r\nengulfed with Covid-19 and intermittent lock-down being in\r\nplace. The classes of wellness therapy goes little wrong when\r\nthe complainant begins to get interested in meeting the\r\nwellness therapist, the petitioner, as they had never met each\r\nother. The transaction or the classes had happened through\r\ninstagram. The complainant getting interested in the petitioner\r\nstarted sending lewd messages and started to post indecent\r\ncontents containing pornography and other material on the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">inbox of the petitioner. Then the petitioner blocks the account\r\nof the complainant. It is then the complainant begins to dig at\r\nthe veracity of the therapy that the petitioner claimed and\r\ncomes to know that the petitioner had 15 such profiles of\r\ninstagram or other social media and then registers a complaint\r\nagainst the petitioner for offence of cheating and the offence\r\nunder the Information Technology Act in Crime No.245 of 2021.\r\nThe Police after investigation file a charge sheet for the very\r\noffences so alleged earlier on 4-08-2021 in C.C.No.22955 of\r\n2021. It is the filing of the charge sheet that drives the\r\npetitioner to this Court in the subject petition.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. The afore-narrated facts though not in dispute a\r\nlittle elaboration of the charge sheet materials which are <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appended to the petition clearly demonstrate that the petitioner\r\ninitially sent a message to the complainant on Tinder and later\r\nbegan to chat with the complainant or the complainant with the\r\npetitioner on instagram. The chats would reveal that on a\r\nparticular night when the complainant came to be stressed out,\r\nthe petitioner represents that she is a wellness therapist and\r\nhas a team of wellness therapists and her team would take care\r\nof the well being of the petitioner. It is from this date the\r\nwellness therapy on the complainant began. Wellness classes\r\nwere administered upon the complainant and the complainant\r\non being satisfied with those classes had sent several amounts\r\nintermittently totaling to Rs.3,15,000/- to the petitioner for the\r\nsaid therapy.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. A perusal at the chats that are appended clearly\r\ndemonstrate that it is the petitioner who has lured the\r\ncomplainant getting into the said wellness therapy and the\r\ndiscovery as also the charge sheet material is that the\r\npetitioner has several such web pages in different names. In\r\nfact the name of the petitioner is not even divulged in the\r\ntherapy that she has administered upon the complainant in the\r\nsubject petition. Therefore, it becomes necessary for a trial for\r\nthe petitioner to come out clean. It is also germane to notice\r\nthat over the lewd messages, a crime is registered by the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner against the complainant and the same is pending\r\nadjudication. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 420 has its ingredients in Section 415. Section\r\n415 mandates that if the accused has induced the victim or\r\nlured the victim into parting with any property with a dishonest\r\nintention at the inception, it becomes an ingredient for the\r\noffence of cheating. The chats would reveal that the petitioner\r\nhad initially represented that she is a wellness therapist and\r\nher team would take care of the complainant. Therefore, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">without having any team or any qualification whatsoever, it was\r\nthe web page prima facie created to lure the complainant and\r\nthe like. It is therefore, the offence of cheating comes clearly\r\nmade out against the petitioner. The other offences alleged are\r\nthe one punishable under the Information Technology Act. An\r\nentry in the complaint or the summary of the charge sheet\r\nclearly makes out an offence that would become ingredients of\r\nSections 66(C) & (D) and 67(A) of the Information Technology\r\nAct and these are in the realm of seriously disputed questions\r\nof fact.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the light of the aforesaid facts and the judgment of the\r\nApex Court in the case of Kaptan Singh, I do not find any\r\nwarrant to interfere with the case on hand as the petitioner has\r\nnot demonstrated by production of such unimpeachable\r\nevidence of sterling character for this Court to interfere or\r\ninterject the proceedings in exercise of its jurisdiction under\r\nSection 482 of the CrPC.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. A parting observation in the case may not be inapt.\r\nIt is in public domain that there are huge mushrooming of so\r\ncalled therapies and therapists on social media i.e., instagram,\r\ntwitter or facebook as the case would be, wherein therapists <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">pose themselves to be in the field of any therapy. It is also in\r\npublic domain that they are all pseudo-therapists who are\r\n“instagram influencers”. The present case concerns\r\npsychosomatic therapy or the wellness therapy. Therapists of\r\nthe kind, are many in number on social media, in reality, they\r\nare not bound by any ethics or not regulated by any norms.\r\nCases of this nature have begun to emerge in large proportions\r\nwhere people wanting to get some therapy fall prey to such\r\npseudo-therapists. Therefore, it is time that the Government\r\ncomes up with some regulatory measure to check the growth of\r\nsuch therapists.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Since the wellness therapy has generated such\r\nillness as is complained of by the complainant and finding no\r\nmerit in the petition, the petition stands dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '562294f9d5a928f988e3d62e459612bf.JPG', '597a88a43447af0a9a98e286ad1016f3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-08', 1, '', '', '2022-10-08 12:44:31', '2022-10-08 03:34:57'),
(2273, 'chDp7EHHktQJrBHPqaH7qWlhg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'DNA test result is only a corroborative evidence and cannot be conclusive in crimes involving sexual assault on children. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Swamy B Vs State and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 6789 of 2022 decided on 15 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court calling in question\r\nproceedings in Special C.C.No.188 of 2022 arising out of crime\r\nNo.70 of 2021 registered for offences punishable under Section\r\n376(2)(i)(n) of the IPC and Sections 5(j)(ii), 5(l) and 6 of the\r\nProtection of Children from Sexual Offences Act, 2012 (for short\r\n‘POCSO Act’).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Facts that lead the petitioner to this Court, succinctly\r\nstated, are as follows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> Petitioner is the accused, a man of 45 years working as a\r\nConductor with the KSRTC. A crime comes to be registered on\r\n19-02-2021 by the 2nd respondent, father of the victim. The\r\nallegation against the petitioner is that the daughter of the\r\ncomplainant who was 12 years old had become pregnant. The\r\nreason for pregnancy is the act of the petitioner/accused who is\r\na relative of the family of the complainant. It is the allegation\r\nthat on the night of 05-01-2021 the petitioner had indulged in\r\nsexual act with the victim and on 17-02-2021 the victim had\r\ndeveloped nausea which necessitated the complainant to take\r\nher to the doctor and then comes to know that his daughter is\r\npregnant and the reason for pregnancy is the petitioner. The\r\ncrime then comes to be registered on the complaint of the 2nd\r\nrespondent in crime No.70 of 2021 for the afore-quoted\r\noffences. Since the victim was 12 years old, foetus had to be\r\nremoved and sent for DNA analysis. The blood sample of the\r\npetitioner was also sent along for the analysis. The report of\r\nthe DNA sample that was sent for analysis was yet to come <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">about. The police, however, after investigation filed a charge\r\nsheet in the matter pending receipt of the report of the DNA\r\nsample.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n4. When the proceedings in terms of the charge sheet\r\nfiled in Special C.C.No.188 of 2022 was in progress, the report\r\nof DNA comes about and the report of the DNA was in favour of\r\nthe petitioner, opining that the DNA sample of the foetus did\r\nnot match with the blood sample of the petitioner. The\r\npetitioner on receipt of DNA report rushes to this Court with the\r\nsubject petition, contending that he was not responsible for the\r\ndaughter of the complainant becoming pregnant.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">8. The afore-narrated facts are not in dispute. The\r\nincident is alleged to have happened at 12.30 a.m. on\r\n05-01-2021. It is the said incident that becomes the fulcrum of\r\nallegations against the petitioner. The incident narrated in the\r\ncomplaint is that when all the members of the family were\r\nasleep in the house of the victim where the petitioner was also\r\nsleeping, the aunt of the victim walks out and goes to use the\r\nwashroom for a considerable time. Between the time the aunt\r\nof the victim going to the wash room and coming back, the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner is alleged to have indulged in sexual assault on the\r\n12 year old victim. This fact was known to none.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. It is no doubt true that DNA analysis has emerged in\r\nfavour of the petitioner, for him not being the biological father.\r\nThat would not, in the considered view of this Court, absolve\r\nthe petitioner in entirety for the offences so alleged. Paternity <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">may have been in doubt due to the analysis. The alleged act\r\nhas not at all happened cannot be the inference that can be\r\ndrawn due to a DNA sample coming in favour of the petitioner.\r\nEven otherwise, the DNA sample report that is given by the\r\nanalyst is also to be confirmed by way of evidence. Mere\r\nproduction of DNA sample report before this Court would not\r\nmean that it has to be taken as gospel truth without\r\nexamination or cross-examination of the doctor who has\r\nrendered such opinion.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. It is germane to notice the statement of the victim\r\ngirl as recorded under Section 164 of the Cr.P.C. The victim\r\nnarrates the horrendous acts of the petitioner, a 45 year old\r\nman on a 12 year old child. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">If what the 12 year old child narrates before the learned\r\nMagistrate, as quoted hereinabove, is taken note of, they are\r\nall unpardonable acts on the part of the petitioner unless\r\nproved otherwise. The DNA test would exclude the petitioner as\r\nfather of the child, but cannot discredit what the victim has\r\nnarrated in her 164 Cr.P.C. statement that the petitioner had\r\nforcibly committed sexual acts on her. There is no reason to\r\ndisbelieve the testimony of the victim as narrated in the said\r\nstatement. The DNA test cannot be said to be a conclusive\r\nevidence with regard to the allegations made against the\r\npetitioner. The DNA test can at best be used as a corroborative\r\nevidence. Reference being made to the judgment of the Apex </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court in the case of SUNIL V. STATE OF MADHYA\r\nPRADESH in the circumstances would be apposite.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the light of the judgment rendered by the Apex Court in the\r\ncase of SUNIL (supra), the unmistakable inference would be, if\r\na positive result of the DNA comes about against the accused,\r\nit would constitute a clinching evidence against him for further\r\nproceeding. If the result is negative i.e., favouring the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">accused, then the weight of other materials and evidence on\r\nrecord will still have to be considered for corroboration.\r\nTherefore, it does not form such a clinching evidence that\r\nwould result in termination of proceedings against the accused,\r\nthe petitioner in the case at hand.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. Finding no merit, the Criminal Petition is dismissed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '02e56f62cd1fee131a088b462cd575e0.JPG', '164846dd9da7166fc836684c43f91549.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-10', 1, '', '', '2022-10-09 22:48:43', '2022-10-10 09:20:17'),
(2274, 'zoJbIEphD6T7KJeQA5X1apIjZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Drugs and Cosmetics Act, 1940. No prior sanction required for registration of crime or taking cognizance by court in respect of allopathic drugs. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Emcure Pharmaceuticals Ltd and others Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 6919 of 2022 decided on 22 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioners are before this Court calling in question\r\nentire proceedings in Criminal Miscellaneous No.01 of 2018\r\nwhich later become C.C.No.39 of 2018 registered for an offence\r\npunishable under Section 27(d) of the Drugs and Cosmetics\r\nAct, 1940 (‘the Act’ for short). <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Shorn of unnecessary details, facts in brief that are\r\ngermane for consideration of the issue in the lis, are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n The 1st petitioner is M/s Emcure Pharmaceuticals Limited,\r\na drug manufacturing company engaged in the manufacture\r\nand sale of drugs (hereinafter referred to as ‘the Company’ for\r\nshort). Petitioner Nos.2 and 3 who are accused Nos.2 ad 3 are\r\nthe Managing Director and Director respectively of the said\r\nCompany. The petitioners are in C.C.No.39 of 2018. The facts\r\nthat led to the registration of crime are that on 5-01-2012, the\r\nDrugs Inspector, Bangalore visits M/s Tulasi Pharma and takes\r\na legal sample of the drug manufactured by the Company,\r\nprepares Form No.17, issues it to the proprietor of M/s Tulasi\r\nPharma and sends the sample so collected for test/analysis\r\nunder the acknowledgment of the proprietor as required under\r\nSection 23 of the Act. On 6.01.2012, the sealed portion of the\r\ndrug reaches Government Analyst at the Drugs Testing\r\nLaboratory, Bengaluru. The procedure stipulated under the Act\r\nwas followed for drawing up and sending the sample. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. I have given my anxious consideration to the\r\nsubmissions made by the respective learned counsel and\r\nperused the material on record. In furtherance whereof, the\r\nonly issue that falls for my consideration is whether the\r\nimpugned proceedings are hit by Section 468 of the Cr.P.C.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 12. The afore-narrated facts are not in dispute. The link\r\nin the chain of events, narrated hereinbefore, are also not in\r\ndispute and are, therefore, not reiterated. To begin with, the\r\nreceipt of report of sample from the Drugs Testing Laboratory\r\nwould suffice. The sample was sent to the Laboratory by the\r\nDrugs Inspector on 5-01-2012. 6 months thereafter i.e., on\r\n21.07.2012 the report of the Laboratory is received at the\r\nhands of the Drugs Inspector terming it to be “not of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">standard quality” for “Assay for Folic Acid”. On receipt of\r\nthe report, the complaint ought to have been registered by the\r\nDrugs Inspector, but he chose to seek sanction/permission for\r\nregistration of crime that too after about a year of receipt of\r\nsample i.e., on 8-10-2013. The authority which was competent\r\nto sanction i.e., the Drugs Controller accorded such\r\nsanction/permission on 8-12-2017. By then it was 5 years and\r\n5 months after receipt of the sample from the hands of the\r\nLaboratory. The Drugs Inspector registers the crime invoking\r\nSection 200 of Cr.P.C. on 2-01-2018 which is 5 years and 6\r\nmonths after receipt of the sample for offence punishable under\r\nSection 27(d) of the Act.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. The ground on which condonation of delay was\r\nsought was that that the Drugs Inspector who was to register\r\nthe complaint was awaiting sanction/permission from the hands\r\nof the Drugs Controller for registration of the crime and it is in\r\nthe process of seeking sanction/permission 5 years and 7\r\nmonths had passed by and, therefore, the delay was\r\ncondonable. While submitting justification for condonation of\r\ndelay, the learned High Court Government Pleader seeks to\r\ntake support of Section 33M of the Act. It therefore becomes\r\ngermane to notice Section 33M of the Act. Section 33M of the\r\nAct forms a part of Chapter IV-A of the Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">Section 33B of the Act makes Chapter IV-A applicable to certain\r\ndrugs which are Ayurvedic, Siddha or Unani. Section 33M of\r\nthe Act deals with taking of cognizance of offences which\r\nmandates that no prosecution under this Chapter shall be\r\ninstituted except by an Inspector with the previous sanction of\r\nthe authority specified under sub-section (4) of Section 33G of\r\nthe Act. Section 33M of the Act comes under Chapter-IVA.\r\nChapter IVA exclusively deals with the provisions relating to\r\nAyurvedic, Siddha and Unani drugs. Section 33M of the Act\r\nforms part of Chapter IVA which deals with the aforesaid drugs.\r\nTherefore, Section 33M of the Act cannot but be read to be for\r\nthe purpose of those drugs enumerated in the said Chapter. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Sanction under Section 33G of the Act for registration of the\r\ncrime or cognizance by the concerned court under Section 33M\r\nof the Act would only be for enumerated drugs in Chapter IVA.\r\nSection 33B of the Act makes entire Chapter IVA to become\r\napplicable only to Ayurvedic, Siddha and Unani drugs. An\r\nunmistakable inference that would flow from a perusal of the\r\nprovisions extracted hereinabove would be that for a\r\nprosecution to be initiated under Section 27(d) of the Act,\r\nsanction would be required only if the drugs would be either\r\nAyurvedic, Siddha or Unani. Section 33M of the Act mandates\r\nso only if the drugs are those which come within the Chapter.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. The drugs in the case at hand are not the ones which\r\nare either Ayurvedic, Siddha or Unani. They are allopathic\r\ndrugs and therefore, Section 33M of the Act on the face of it, is\r\ninapplicable to the fact situation. The sheet anchor of the\r\nlearned High Court Government Pleader to lend support to the\r\nenormous delay in registering the complaint taking recourse of\r\nSection 33M of the Act would thus tumble down. There was\r\nabsolutely no necessity to await sanction/permission from the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Drugs Controller to register the complaint as the legal sample\r\nof the drug that was drawn was not of either Ayurvedic, Siddha\r\nor Unani. If the Drugs Inspector has by taking recourse to a\r\nwrong provision of law sought sanction from the hands of the\r\nDrugs Controller to register prosecution, it cannot be said to be\r\ncondonable as it was a question of jurisdiction. The statutory\r\nbar that kicks in terms of Section 468 of the Cr.P.C. could not\r\nhave been condoned by both the Courts as it gets at the root of\r\nthe matter.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16. It is not the date on which the Court takes cognizance\r\nof the offence, that would become applicable for the rigours of\r\nSection 468 of the Cr.P.C. to operate, but the date on which\r\nthe crime comes to be registered. In the case at hand, the\r\ncrime itself is registered after 5 years and 7 months of receipt\r\nof report of the sample from the hands of the Laboratory.\r\nTherefore, such delay which generates statutory bar could not\r\nhave been condoned on the specious plea of the prosecution\r\nawaiting unnecessary sanction or permission on a misreading of\r\nthe statute. Therefore, the entire proceedings right from\r\nregistration of the crime are rendered unsustainable for they </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">are all without jurisdiction, only in the teeth of Section 468 of\r\nthe Cr.PC.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>17. In so far as the judgments relied on by the learned\r\nHigh Court Government Pleader are concerned, they are all\r\ndistinguishable on facts of those cases without much ado. The\r\nApex Court in the case of Udai Shankar Awasthi (supra) has\r\nno doubt held that in exceptional circumstances, the Court can\r\ncondone the delay. The Apex Court was not considering or\r\ninterpreting the statutory provision akin to or even Section 468\r\nCr.P.C. The other judgment also follows suit. The issue in the\r\ncase at hand is to be considered on the bedrock of the statutes\r\nwhich have not been interpreted by the Apex Court in the\r\naforesaid judgments. Therefore, those judgments would lend\r\nno assistance to the learned High Court Government Pleader.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18. For the reasons rendered supra, it becomes\r\nnecessary to direct the competent authority to register the\r\ncrime in such cases, in quick succession and not resort to red\r\ntapism and let the alleged guilty go scot-free on the plea of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">limitation. The Authority should also necessarily peruse and\r\nunderstand the statute for registration of crimes in such\r\nmatters, as delay will defeat the very object of penal action\r\nunder the statute and it is always said that “procrastination\r\nis the thief of time”</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>I. The Criminal Petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'cc38a2ac61b6ce8d7d0bc5f7f4d65a12.JPG', '9515d90dc80d2acd29ded39381154f85.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-10', 1, '', '', '2022-10-09 22:58:54', '2022-10-10 10:38:51'),
(2275, '1CD0yWugXJAtYwxUO5fQW1RNd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When a statutory appeal is rejected as not maintainable, the appellate authority cannot make observations on merits touching the rights of the parties. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.D. Rajanna Vs The Executive Officer and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 51123 of 2016 decided on 16 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner submitted an application to register\r\nthe Khata in respect of property bearing No.82/343,\r\nsituated at Melukote, Pandavapura Taluk, Mandya\r\nDistrict with the second respondent. The third\r\nrespondent filed objections to the said application and\r\nthe second respondent in turn issued notice to the\r\npetitioner calling upon him to produce the relevant\r\ndocuments and also stating that spot inspection will be\r\nconducted in respect of the property.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The first respondent after holding that the\r\nappeal is not maintainable recorded categorical findings\r\nthat there is no illegality in registration of the Khata in\r\nfavour of the third respondent. Hence, this petition.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">5. The first respondent after holding that the\r\nappeal is not maintainable ought not to have recorded\r\nfindings that there is no illegality in registration of Khata </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in favour of the third respondent and should have\r\nrelegated the parties to agitate the same before the\r\nsecond respondent.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 6. Hence, impugned order passed by the first\r\nrespondent insofar it relates to categorically holding that\r\nthe registration of the Khata in favour of the third\r\nrespondent is in accordance law is not sustainable</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>ORDER</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">i. Writ petition is allowed in part.</span> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '49684d4dcff015c21c600072a9349e72.jpeg', 'd0ffb8f300c00836dd65c371290b67a7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-11', 1, '', '', '2022-10-09 23:11:01', '2022-10-11 13:01:12');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2314, 'e66BRxeHwkda3cRTpaVBQyuGB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court deprecates speculative litigation by colleges harming educational prospects of the students. Imposes exemplary costs. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Sri Venkateshwara Dental College and Hospital and others Vs The State of Karnataka and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 12902 of 2022 decided on 7 September 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice B. Veerappa and Justice K.S. Hemalekha.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">3. The case of the petitioners is that, the petitioner No.1 College in W.P.No.12902/2022 is one of the oldest educational institution which was initially started by Nehru Smaraka Vidya Kendra and later taken over by Dr.Kurunji Venkataramana Gowda, popularly known as KVG, who was a Gandhian in his spirit and action. The petitioner No.1-college in W.P.No.12946/2022 is also an oldest educational Institution in Sullia Taluk, established by aforesaid Dr.Kurunji Venkataramana Gowda, and he was responsible for making Sullia Taluk as Vidya Kashi. The petitioner No.1-institutions obtained the requisite permission from the Government and affiliation from the respondents viz., The Dental Council of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">India-respondent No.4, Rajiv Gandhi University of Health Sciences-respondent No.7. The National Eligibility Entrance Test (NEET) is the qualifying test for MBBS and BDS programmes and it is conducted by the National Testing Agency (NTA).</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">5. It is further contended that, as could be seen from the aforesaid schedule, the students who get qualified in the NEET, have to register with the Karnataka Examination Authorityrespondent No.3, between 2nd May and 3rd May for Mop-up round 2 counselling for BDS 2021. Unfortunately, the website/portal of the Karnataka Examination Authorityrespondent No.3 which facilitates the registration was not at all open due to the reasons best known to respondent No.3 and therefore, petitioner-students could not register themselves in terms of the schedule announced by the Medical Counselling Committee for Mop-up round 2 counselling for BDS 2021. As per the note issued by the Karnataka Examination Authority, the last date for admission to BDS i.e., Dental Courses for the academic year 2021-22 was 15.05.2022 and in view of the non availability of the website/portal of the Karnataka Examination <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Authority-respondent No.3 for registration, petitioner-students were deprived of getting admission to BDS course for the academic year 2021-22. It is further case of the petitioners that the permitted intake of students to petitioner No.1-college in W.P.No.12902/2022 was 40 and only 34 students were admitted and 6 seats are still vacant. In W.P.No.12946/2022, the petitioner No.1-institution has permitted intake of 100 students and only 96 students have been admitted and 4 seats are still vacant. Therefore, the petitioner No.1-institutions addressed a letter to the respondent No.3-Karnataka Examination Authority, on 12.05.2022, as per Annexure-G requesting the authority to permit the petitioner-students to register in the Karnataka Examination Authority website to facilitate their admission. However, since the respondent No.3 did not make their website/ portal available for the petitionerstudents to register on 2nd and 3rd of May for Mop-up round 2 counselling for BDS 2021, they could not register and get the admission to the Dental course. Therefore, the petitioner No.1- institutions and the petitioner-students are before this Court for the relief sought for.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">22. It is undisputed fact that petitioners No.1-institutions in both the writ petitions are two different colleges/institutions managed by a single Management and the petitioner-students who are said to be the aspirants to BDS course have filed the present writ petitions.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">23. It is well settled that any person who approaches the Court for a writ of mandamus should first convince the Court as to what is the statutorily enforceable right available to him. A careful reading of the pleadings in the writ petitions make it clear that the petitioners have not made out any statutorily enforceable right to issue a writ in the nature of mandamus. In the absence of the same, petitioners are not entitled to any relief before this Court in exercise of powers under Articles 226 and 227 of the Constitution of India. <br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">37. The contention of Sri Krishna, learned counsel for the petitioners that Sri Venkateshwara Dental College and Hospital i.e., petitioner No.1 in W.P.No.12902/2022, the total intake for the academic year 2021 is 40 and the admissions done is 34 and still 6 seats are vacant and that KVG Dental College and Hospital-petitioner No.1 in W.P.No.12946/2022, the total intake for the academic year 2021 is 100 and the admission done is 96 and still 4 seats are vacant, is of no consequence. That is how the colleges have approached the Court to get an order to fill up the vacant post and thus, the exercise of the Colleges is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for its personal benefit and not for the benefit of the students. Thereby, the petitioners have not made out any case to grant the relief sought for in the present writ petitions.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">39. For the reasons stated above, the first point raised for consideration is answered in the negative holding that the petitioners have not made out any ground to direct the Karnataka Examination Authority to admit the petitionerstudents to petitioners No.1-college to the BDS course for the Academic Year 2021-22. Accordingly, the 2nd point is also answered in the negative holding that the petitioners have not made out a case to direct the respondent No.4-Dental Council <span style=\"font-size: 12pt;\">of India and respondent No.7-Rajiv Gandhi University of Health Sciences to approve admissions of petitioner-students to the BDS course for the Academic Year 2021-22.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-size: 12pt;\">40. It is relevant to state at this stage that, because of petitioners No.1-college the petitioner-students approached the Court believing that they get the relief before this Court and they will get admission in the college. Thereby, the precious time of the petitioner-students has been wasted. So also, the petitioners have wasted the Court time for more than half a day, depriving the other genuine litigants. The experience of this Court is that in recent years there has emerged a trend of filing speculative litigations before various Courts of law, not just in the Court of first instance, but also in the High Court as well as before the Hon\'ble Supreme Court. It is the duty of the Courts to ensure that such litigations shall be weeded out at the first instance rather than allowing to be festered and thereby coming in the way of genuine litigants seeking justice treating the Court as \"Temple of Justice\" and to protect precious public & judicial time of the court. Therefore, the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioners No.1-colleges are liable to pay cost for wasting precious Court time.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">XI. ORDER/RESULT</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(i) The Writ petitions are hereby dismissed as devoid of merits with costs of `2,00,000/- (Rupees two lakhs), i.e., `1,00,000/- (Rupees one lakh) payable by Sri Venkateshwara Dental College and Hospital-petitioner No.1 in W.P.No.12902/2022 and `1,00,000/- (Rupees one lakh) payable by KVG Dental College & Hospital-petitioner No.1 in W.P.No.12946/2022. </span></p>', '670cecdc9d2d8ef3c2db3b3b7b34067f.jpeg', 'a89bcdbcc7afd654641a2017c38e2f65.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-22', 1, '', '', '2022-10-18 15:05:00', '2022-10-22 07:10:51'),
(2321, 'fQznldqpgTXA8s8VKegHh2UpC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Income Tax exemption to educational institutions. The institution must engage itself in education or educational activities, and not engage in any activity of profit. Such institutions cannot have objects which are unrelated to education. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S New Noble Educational Society Vs The Chief Commissioner of Income Tax and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3795 of 2014 decided on 19 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice Uday Umesh Lalit, Justice S. Ravindra Bhat and Justice Pamidighantam Sri Narasimha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The subject matter of these appeals is the rejection of the appellants’ claim\r\nfor registration as a fund or trust or institution or any university or other educational\r\ninstitution (hereinafter collectively referred to as “institution / trust”) set up for the\r\ncharitable purpose of education, under the Income Tax Act, 1961 (hereinafter, “IT\r\nAct”). The Andhra Pradesh High Court, by its detailed impugned judgment4\r\n, held\r\nthat the appellant trusts which claimed benefit of exemption under Section 10 (23C)\r\nof the IT Act were not created ‘solely’ for the purpose of education, and that to\r\ndetermine that issue, the court had to consider the memorandum of association or\r\nthe rules or the constitution of the concerned trust. Additionally, the appellants were\r\ndenied registration on the ground that they were not registered under the Andhra\r\nPradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987\r\n(hereinafter, “A.P. Charities Act”) as condition precedent for grant of approval. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. It was urged that there was no bar or restriction imposed by law on trusts\r\ninvolved or engaged in activities other than education, from claiming exemption\r\nunder Section 10(23C)(vi), provided their motive was not-for-profit. It was\r\nsubmitted that in the present case, the assesses had other objects apart from education\r\nwhich were charitable. Consequently, the denial of registration by the Commissioner\r\nwas contrary to law. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>60. In the light of the above discussion, this court is of the opinion that the\r\ninterpretation adopted by the judgments in American Hotel (supra) as well as Queens\r\nEducation Society (supra) as to the meaning of the expression ‘solely’ are erroneous.\r\nThe trust or educational institution, which seeks approval or exemption, should\r\nsolely be concerned with education, or education related activities. If, incidentally,\r\nwhile carrying on those objectives, the trust earns profits, it has to maintain separate\r\nbooks of account. It is only in those circumstances that ‘business’ income can be\r\npermitted- provided, as stated earlier, that the activity is education, or relating to\r\neducation. The judgment in American Hotel (supra) as well as Queens Education\r\nSociety (supra) do not state the correct law, and are accordingly overruled.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>61. The second question which this court has to address is whether the PA\r\n(Commissioner or any other designated authority) is in any manner enjoined to\r\nconfine the nature of inquiry to discern the object of a society, trust or other\r\ninstitution at the stage when it approaches the authority for approval under Section\r\n10 (23C).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">63. Having regard to the plain terms of the second proviso to Section 10(23C),\r\nwhich refers to the procedure for approval of applications including those made by\r\ntrusts and institutions imparting education, one can discern no such restrictions.\r\nFrom the pointed reference to ‘audited annual accounts’ as one of the heads of\r\ninformation which can be legitimately called or requisitioned for consideration at\r\nthe stage of approval of an application, the inference is clear: the Commissioner or\r\nthe concerned authority’s hands are not tied in any manner whatsoever. The\r\nobservations to the contrary in American Hotel (supra) appear to have overlooked\r\nthe discretion vested in the Commissioner or the relevant authority to look into past\r\nhistory of accounts, and to discern whether the applicant was engaged in fact,\r\n‘solely’ in education. American Hotel (supra) excluded altogether inquiry into the\r\naccounts by stating that such accounts may not be available. Those observations in\r\nthe opinion of the court assume that only newly set up societies, trusts, or institutions\r\nmay apply for exemption. Whilst the statute potentially applies to newly created\r\norganizations, institutions or trusts, it equally applies to existing institutions,\r\nsocieties or trust, which may seek exemption at a later point. At the same time, this\r\ncourt is also of the opinion that the Commissioner or the concerned authority, while\r\nconsidering an application for approval and the further material called for (including\r\naudited statements),should confine the inquiry ordinarily to the nature of the income\r\nearned and whether it is for education or education related objects of the society (or\r\ntrust). If the surplus or profits are generated in the hands of the assessee applicant\r\nin the imparting of education or related activities, disproportionate weight ought not\r\nbe given to surpluses or profits, provided they are incidental. At the stage of\r\nregistration or approval therefore focus is on the activity and not the proportion of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">income. If the income generating activity is intrinsically part of education, the\r\nCommissioner or other authority may not on that basis alone reject the application.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>67. In the event of failure to comply with Section 43(1), or failure to intimate\r\nchanges in the trust, or for supplying false information, the trustee or other person in\r\ncharge, can be penalized by Section 43 (11). Section 44 empowers the Commissioner\r\nto direct charitable organizations and trusts to comply and register under the Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>68. The assessees had argued that since they were registered under the Andhra\r\nPradesh Societies Registration Act, 2001 or were trusts duly registered, they could\r\nnot be compelled to comply with state laws as a condition for consideration of their\r\napplication as charitable institutions, under Section 10 (23C).\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>69. This court is of the opinion that the findings in the impugned judgment on this\r\naspect are sound. The requirement of registration of every charitable institution is\r\nnot optional. Aside from the fact that the consequences of non-registration are penal,\r\nwhich indicates the mandatory nature of the provisions of the A.P. Charities Act,\r\nsuch local laws provide the regulatory framework by which annual accounts, manner\r\nof choosing the governing body (in terms of the founding instrument: trust, society,\r\netc.), acquisition and disposal of properties, etc. are constantly monitored.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>The A.P. Charities Act provides a statutory regulatory framework in regard to\r\nactivities of charitable institutions in the state. Sections 72-74 deal with surplus\r\nfunds and their treatment; Sections 75-77 deal with properties of trusts and charitable\r\ninstitutions and restrictions on transfers. These and other provisions enable the State,\r\nwhich is concerned in the proper administration of such organizations, to ensure that\r\nthey are managed efficiently without misfeasance. They also contain provisions to\r\nprotect the interests of trusts, especially funds and properties.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">70. In view of the above discussion, it is held that charitable institutions and\r\nsocieties, which may be regulated by other state laws, have to comply with themjust as in the case of laws regulating education (at all levels). Compliance with or\r\nregistration under those laws, are also a relevant consideration which can\r\nlegitimately weigh with the Commissioner or other concerned authority, while\r\ndeciding applications for approval under Section 10 (23C). </span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>76. The conclusions of this court are summarized as follows:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>a. It is held that the requirement of the charitable institution, society or trust\r\netc., to ‘solely’ engage itself in education or educational activities, and not\r\nengage in any activity of profit, means that such institutions cannot have\r\nobjects which are unrelated to education. In other words, all objects of the\r\nsociety, trust etc., must relate to imparting education or be in relation to\r\neducational activities.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>b. Where the objective of the institution appears to be profit-oriented, such\r\ninstitutions would not be entitled to approval under Section 10(23C) of the\r\nIT Act. At the same time, where surplus accrues in a given year or set of\r\nyears per se, it is not a bar, provided such surplus is generated in the course\r\nof providing education or educational activities.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>c. The seventh proviso to Section 10(23C), as well as Section 11(4A) refer to\r\nprofits which may be ‘incidentally’ generated or earned by the charitable\r\ninstitution. In the present case, the same is applicable only to those\r\ninstitutions which impart education or are engaged in activities connected\r\nto education.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>d. The reference to ‘business’ and ‘profits’ in the seventh proviso to Section\r\n10(23C) and Section 11(4A) merely means that the profits of business\r\nwhich is ‘incidental’ to educational activity – as explained in the earlier\r\npart of the judgment i.e., relating to education such as sale of text books,\r\nproviding school bus facilities, hostel facilities, etc.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>e. The reasoning and conclusions in American Hotel (supra) and Queen’s\r\nEducation Society (supra) so far as they pertain to the interpretation of\r\nexpression ‘solely’ are hereby disapproved. The judgments are\r\naccordingly overruled to that extent.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>f. While considering applications for approval under Section 10(23C), the\r\nCommissioner or the concerned authority as the case may be under the\r\nsecond proviso is not bound to examine only the objects of the institution.\r\nTo ascertain the genuineness of the institution and the manner of its\r\nfunctioning, the Commissioner or other authority is free to call for the\r\naudited accounts or other such documents for recording satisfaction where\r\nthe society, trust or institution genuinely seeks to achieve the objects which\r\nit professes. The observations made in American Hotel (supra) suggest\r\nthat the Commissioner could not call for the records and that the\r\nexamination of such accounts would be at the stage of assessment. Whilst\r\nthat reasoning undoubtedly applies to newly set up charities, trusts etc. the\r\nproviso under Section 10(23C) is not confined to newly set up trusts – it\r\nalso applies to existing ones. The Commissioner or other authority is not <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in any manner constrained from examining accounts and other related\r\ndocuments to see the pattern of income and expenditure.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">g. It is held that wherever registration of trust or charities is obligatory under\r\nstate or local laws, the concerned trust, society, other institution etc.\r\nseeking approval under Section 10(23C) should also comply with\r\nprovisions of such state laws. This would enable the Commissioner or\r\nconcerned authority to ascertain the genuineness of the trust, society etc.\r\nThis reasoning is reinforced by the recent insertion of another proviso of\r\nSection 10(23C) with effect from 01.04.2021.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>77. In a knowledge based, information driven society, true wealth is education –\r\nand access to it. Every social order accommodates, and even cherishes, charitable\r\nendeavour, since it is impelled by the desire to give back, what one has taken or\r\nbenefitted from society. Our Constitution reflects a value which equates education\r\nwith charity. That it is to be treated as neither business, trade, nor commerce, has\r\nbeen declared by one of the most authoritative pronouncements of this court in T.M.A\r\nPai Foundation (supra). The interpretation of education being the ‘sole’ object of\r\nevery trust or organization which seeks to propagate it, through this decision, accords\r\nwith the constitutional understanding and, what is more, maintains its pristine and\r\nunsullied nature.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>78. In the light of the foregoing discussion, the assessees’ appeals fail. It is\r\nhowever clarified that their claim for approval or registration would have to be\r\nconsidered in the light of subsequent events, if any, disclosed in fresh applications\r\nmade in that regard. This court is further of the opinion that since the present\r\njudgment has departed from the previous rulings regarding the meaning of the term\r\n‘solely’, in order to avoid disruption, and to give time to institutions likely to be\r\naffected to make appropriate changes and adjustments, it would be in the larger <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">interests of society that the present judgment operates hereafter. As a result, it is\r\nhereby directed that the law declared in the present judgment shall operate\r\nprospectively. The appeals are hereby dismissed, without order on costs.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '84b9bc97ee7a0dfe73999c51289c04b0.jpeg', '8a7484ac5874a665709dcb55972e5c4c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-21', 1, '', '', '2022-10-20 13:16:16', '2022-10-21 10:37:11'),
(2324, '7e7dwYqBTENTpmAt4bFbc66IA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque bounce case. Payment of interim compensation applies only in respect of offences committed after Section 143(A) of N.I.Act came into force in the statutory book. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Shashikumar Vs Rajkumar.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Criminal Petition 200994 of 2022 decided on 23 September 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice P.N. Desai.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. Learned counsel for the petitioner argued that respondent herein is the complainant and he has filed a complaint under Section 138 of Negotiable Instruments Act, 1881, (for short hereinafter referred to as \'N.I.Act\') against this petitioner before the Trial Court on 15.05.2018. Thereafter, the respondent/complainant also filed an application on 10.01.2019 under Section 143(A) of N.I. Act seeking to grant interim compensation.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">5. Learned counsel for the petitioner argued that amendment to Section 143(A) of the N.I. Act, is not applicable to this case as the said amendment came into effect on 01.09.2018. The complaint was filed on 15.05.2018 i.e., prior to coming into force of the said act. Therefore, the learned counsel for the petitioner argued that the learned Sessions judge without taking into consideration said aspect held that the application filed under Section 143(A) of N.I. Act, seeking interim compensation was filed on 10.01.2019 which is subsequent to the Amendment Act, 2018 which came into force on 01.09.2018 and erred in rejecting the petition. Therefore, he prayed to allow the petition.<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">7. The Hon’ble Supreme Court in the case of G.J.Raja Vs. Tejraj Surana reported in 2019 (19) SCC 469 considered the scheme of Section 143(A) of N.I.Act and at paragraph No.23 it is observed that the said provision is prospective in nature and it is to be applied only in respect of offense under Section 138 of N.I.Act stated to have been committed after the provision of Section 143(A) of N.I.Act, came into force in the statutory book. Further the Hon’ble Supreme Court referring to its earlier decision in the case of Surinder Singh Deswal Vs. Virender Gandhi – (2019) 11 SCC 341 and at paragraph Nos.22 observed with regard to distinction between Section 148 and Section 143-A of the N.I.Act and held that Section 148 depends upon the existing machinery and principles already in existence and does not create any fresh disability of the nature similar to that created by Section 143-A of the Act.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">8. In this case, admittedly according to the complainant, he has filed the complaint on 15.05.2018, before the Amendment Act, 2018 came into force with effect&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">from 01.09.2018. Therefore, in view of the principles stated in the case of G.J.Raja Vs. Tejraj Surana1 referred supra, the order of the learned Sessions Judge and the order passed by the learned JMFC is also not tenable.</span><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">ORDER</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">(i) The revision petition is allowed.</span></span></span></p>', 'a6cf3aa6989699e1ea23c483c4584a2d.jpeg', '9fab13a3e108154fba8fdf30039f8ae2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-20', 1, '', '', '2022-10-20 15:44:15', '2022-10-20 15:44:15'),
(2322, '9qSPUTlU0gY5iBHSYnwY819tF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Commercial Courts can deal with applications under Section 9, 14 and 34 of the Arbitration and Conciliation Act, 1996 though they are subordinate to Principal Civil Judge. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jaycee Housing Pvt Ltd and others Vs Registrar, Orissa High Court, Cuttack and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6876 of 2022 decided on 19 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice Krishna Murari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. In exercise of powers conferred by Section 3 and subsection (1) of Section 9 read with Section 10 of the Odisha Civil Courts Act, 1984 and Section 30 of the Commercial Courts Act, 2015 (hereinafter referred to as the Act, 2015), the State Government on the recommendation of and after consultation with the High Court of Orissa has established the Courts of Civil Judge (Senior Division) as Commercial Courts for the purposes of exercising the jurisdiction and powers under the Act, 2015. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.1 The original writ petitioners – appellants herein initially filed the proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Arbitration Act, 1996) in the Court of learned District Judge. However, on establishment of the Commercial Courts under the aforesaid notification, the said proceedings were transferred to the Commercial Court i.e., the Court of Civil Judge (Senior Division) [designated as Commercial Court]. Therefore, the appellants herein challenged the aforesaid notification and designating the Courts of Civil Judge (Senior Division) as Commercial Courts under the Act, 2015 before the High Court by way of present writ petitions. It was the case on behalf of the appellants – original writ petitioners that constituting and/or designating the Courts of Civil Judge (Senior Division) as Commercial Courts and to exercise the powers under the Commercial Courts Act would be in conflict with the provisions of Section 2(1)(e) of the Arbitration Act, 1996. It was the case on behalf of the appellants herein that under Section 2(1)(e) of the Arbitration Act, 1996, only the Principal Civil Court of original jurisdiction in a district (Court of Principal District Judge) shall be the “Court” for the purpose of deciding the disputes under the Arbitration Act, 1996 and in case of an arbitration it does not include any Civil Court of a grade inferior to such Principal District Judge. Therefore, it was the case on behalf of the appellants that to confer the jurisdiction upon the Court of Civil Judge (Senior Division) to exercise the powers under the Commercial Courts Act including the proceedings under the Arbitration Act, 1996 would be contrary to Section 2(1)(e) of the Arbitration Act, 1996, which is the Special Act. By the impugned common judgment and order the High Court has dismissed the said writ petitions which has given rise to the present appeals. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. The question of law arising for consideration in the present appeal is, whether in exercise of powers under Section 3 of the Commercial Courts Act, 2015, the State Government can confer jurisdiction to hear applications under Sections 9, 14 and 34 of the Arbitration and Conciliation Act, 1996, upon Commercial Courts which are subordinate to the rank of the Principal Civil Judge in the District, contrary to the provisions of Section 2(1)(e) of the Arbitration Act?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. It is the case on behalf of the appellants, relying upon Section 2(1)(e) of the Act, 1996 that in case of arbitration other than the international commercial arbitration, the principal Civil Court of original jurisdiction in a district only have the jurisdiction to decide the questions forming the subject­matter of the arbitration, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes. Therefore, it is the case on behalf of the appellants that therefore conferring the jurisdiction upon the Court of learned Civil Judge (Senior Division) as Commercial Court to hear applications under Section 9, 14 and 34 of the Act, 1996 shall be directly in conflict with Section 2(1)(e) of the Act, 1996 and therefore the notification of the State Government conferring such powers upon the Court of learned Civil Judge (Senior Division) which is subordinate to the rank of Principal Civil Judge in a district shall be bad in law.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. Therefore, considering the afore­stated provisions of the Act, 2015 and the Objects and Reasons for which the Act, 2015 has been enacted and the Commercial Courts, Commercial Division and Commercial Appellate Division in the High Courts are established for speedy disposal of the commercial disputes including the arbitration disputes, Sections 3 & 10 of the Act, 2015 shall prevail and all applications or appeals arising out of arbitration under the provisions of Act, 1996, other than international commercial arbitration, shall be filed in and heard and disposed of by the Commercial Courts, exercising the territorial jurisdiction over such arbitration where such commercial courts have been constituted. If the submission on behalf of the appellants that all applications/appeals arising out of arbitration under the provisions of Act, 1996, other than the international commercial arbitration, shall lie before the principal civil Court of a district, in that case, not only the Objects and Reasons of enactment of Act, 2015 and establishment of commercial courts shall be frustrated, even Sections 3, 10 & 15 shall become otiose and nugatory. If the submission on behalf of the appellants is accepted, in that case, though with respect to other commercial disputes, the applications or appeals shall lie before the commercial courts established and constituted under Section 3 of Act, 2015, with respect to arbitration proceedings, the applications or appeals shall lie before the principal civil Court of a district. There cannot be two fora with respect to different commercial disputes. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Under the circumstances, notification issued by the State of Odisha issued in consultation with the High Court of Orissa to confer jurisdiction upon the court of learned Civil Judge (Senior Division) designated as Commercial Court to decide the applications or appeals arising out of arbitration under the provisions of Act, 1996 cannot be said to be illegal and bad in law. On the contrary, the same can be said to be absolutely in consonance with Sections 3 & 10 of Act, 2015. We are in complete agreement with the view taken by the High Court holding so.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12. In view of the above and for the reasons stated above, all these appeals fail and the same deserve to be dismissed and are accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '014748a32fcbec445a695c45ca06a137.jpeg', 'e40c23d45abf7ada5e5c37db456ab2aa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-21', 1, '', '', '2022-10-20 13:37:44', '2022-10-21 12:02:13');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2323, 'RtGlPOgLvZKKHalRu31ho8kHY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'If the predominant object of an educational institution is not profit, but advancement of general public utility, that some profits were earned would not debar it from claiming to be a charitable organization. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Assistant Commissioner of Income Tax(Exemptions) Vs Ahmedabad Urban Development Authority.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 21762 of 2017 decided on 19 October 2022.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Chief Justice Uday Umesh Lalit, Justice S. Ravindra Bhat and Justice Pamidighantam Sri Narasimha.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. In these batch of appeals and special leave petitions, the primary question\r\nwhich falls for consideration is the correct interpretation of the proviso to Section <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2(15) of the IT Act introduced by amendment w.e.f. 01.04.2009. It is necessary,\r\nat this stage, to notice that the IT Act visualized three kinds of charitable\r\npurposes: medical relief, education, and relief for the poor – which are described\r\nhereafter as “per se purposes”. To this list, Parliament has, by amendments,\r\nadded other categories, such as preservation of environment (including\r\nwatersheds, forests, and wildlife) and preservation of monuments or places or\r\nobjects of artistic or historic interest, and yoga. The last – or the residual purpose\r\nincluded by the definition - is “advancement of any other object of general public\r\nutility” (hereafter referred to as “GPU category”), which is the subject of\r\ninterpretation in the present case.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. The Director General of Income Tax for exemptions, Commissioner of\r\nIncome Tax (“CIT”) in various states, and other officials of the Income tax\r\ndepartment (hereafter compendiously referred to as “the revenue”) have appealed\r\nthe decisions of various High Courts, which have held that the carrying on of any\r\ntrade, commerce, or business, is not a per se bar or disqualification for a GPU\r\ncategory charitable trust to claim to be such, precluding its tax-exempt status\r\nunder the IT Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>92. The history of the statute and the evolving interpretation of “charitable\r\npurpose” reveals that in - P. Krishna Warriar (supra), this court extensively\r\nconsidered the previous jurisprudence on the subject (in light of the pre-existing\r\nSection 4(3) of the old law), as well as the amendment introduced in 1953. At\r\nthat time, income of a charitable organization, earned from business was subject\r\nto limitations. The limitations were that (i) the business was to be carried on in\r\nthe course of the actual carrying out of a primary purpose of the trust or\r\ninstitution; or (ii) the work in connection with the business was to be mainly\r\ncarried on by beneficiaries of the institution. These expressions were considered\r\nin Krishna Warriar (supra), where the court held that the term “property” (of a\r\ntrust) was of widest amplitude, which included business. The following decision,\r\nin Andhra Chamber of Commerce (supra) where the chamber of commerce had\r\namong its objects, one enabling it to advocate policies or legislation, or oppose\r\nthem, in addition to the object of promoting business, held that the incidental\r\ninclusion of such objects, involving espousing a political purpose, did not\r\nundermine its essential or main purpose, of advancing objects of general public\r\nutility. The new provision, i.e., Section 2(15) of the IT Act, defined “charitable\r\npurpose” restrictively: to deny tax exemption to activities for profit which were\r\ncarried on by a trust for the advancement of an object of general public utility.\r\nThe reason for this change (discussed previously) was that the advantage of tax\r\nexemption was not intended to charitable trusts that were commercial concerns,\r\nwhich while ostensibly serving a public purpose, were fully paid for the benefits\r\nprovided by them</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>105. It is therefore clear that after 1 April, 1984, the statute did not contain any\r\nrestriction as to the nature of activity that could be carried on by GPU category\r\ncharity. Furthermore, the condition in Section 13(1)(bb) - which applied to other\r\nkinds of trusts, i.e., that their incomes could be exempt under Section 11 to the\r\nextent they arose out of business, if the business was “in the course of the actual\r\ncarrying out of a primary purpose of the trust”- was deleted. On the other hand,\r\nthe wording of Section 11(4A) did seem to indicate that business activity was\r\npermissible if the objects of the trust were wholly charitable, and such business\r\nwere to be carried on by its beneficiaries. This legal position continued, till the\r\namendments in question were carried out, in relation to Section 2(15) in 2008.\r\n106. Section 2 begins with the expression “unless the context otherwise\r\nrequires”- as a preface to every expression which is sought to be defined, under\r\nthe IT Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>158. The question whether Section 11(4A) applies where a business is held\r\nunder trust was answered in the negative in earlier High Court judgments. The\r\ngeneral provision under Section 4(3)(i) of the old Act exempted income derived\r\nfrom property held under trust from taxation. Section 4(3)(ia) however, enacted\r\nthat any income derived from a business carried on behalf of a religious or <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">charitable trust would be entitled to exemption only if the business was carried\r\non in the course of carrying out of a primary purpose of the trust or the work in\r\nconnection with the business is mainly carried on by the beneficiaries of the trust.\r\nThe revenue contended there that since clause (ia) was a special provision dealing\r\nwith exemption in respect of a business carried on for and on behalf of a trust,\r\nany claim for exemption as regards the profits of such business can be made only\r\nunder that provision, and if conditions laid down therein are not satisfied, the\r\nassessee cannot rely upon the general provision contained in Section 4(3)(i) to\r\nclaim exemption thereunder on the ground that business is property. In Gadodia\r\nSwadeshi Stores v. Commissioner of Income Tax, Punjab , the Lahore High\r\nCourt held that the fact that the business carried on behalf of the trust failed to\r\nsatisfy the two conditions in Section 4(3)(ia) was no reason for it be denied\r\nexemption if it fell within Section 4(3)(i). The court held that that the two\r\ncategories mentioned in the two clauses did not exclude each other.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>160. Therefore, to summarise on the legal position on this - if a property is held\r\nunder trust, and such property is a business, the case would fall under Section\r\n11(4) and not under Section 11(4A) of the Act. Section 11(4A) of the Act, would\r\napply only to a case where the business is not held under trust. There is a\r\ndifference between a property or business held under trust and a business carried\r\non by or on behalf of the trust. This distinction was recognized in Surat Art Silk\r\n(supra), which observed that if a business undertaking is held under trust for a\r\ncharitable purpose, the income from it would be entitled to exemption under\r\nSection 11(1) of the Act. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>161. The interface between Sections 11(1) and (4) is of some importance.\r\nFirstly, under Section 11(4), it is only the business which is held under the trust\r\nthat would enjoy exemption in respect of its income under Section 11(1).\r\nSecondly, there is a distinction between the objects of a trust and the powers given\r\nto the trustees to effectuate the purposes of the trust. In this regard, the\r\nobservations of this court, in J.K. Trust (supra) assume relevance. There, one of\r\nthe questions which arose was whether the office of managing agency, which was\r\nan office of profit, was in fact settled upon trust and, therefore, could be\r\nconsidered to be business held under trust. The court held that for the purposes of\r\nSection 4(3)(i) of the 1922 Act, the office of managing agency was property\r\nwhich could be held under trust. The revenue pointed out that on the terms of the\r\ntrust deed previously executed by the settlors (on 15.06.1945), the properties\r\nwhich the trustees are to hold and stand possessed of, were only the sum of\r\n?1,00,000/-, any donations and contribution received by the trustees and all\r\naccretions thereto, and investment in securities made from time to time\r\nrepresenting the accretions. It was contended that on the terms of the trust deed,\r\nthe managing agency which was acquired on 10.09.1945 for a period of 20 years, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cannot be said to be property held under trust since no part of the initial amount\r\nof ?1,00,000/-, which was settled upon the trust, was utilised in the acquisition\r\nof the managing agency, so as to impress it with the character of accretion</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>175. In the opinion of this court, the change intended by Parliament through the\r\namendment of Section 2(15) was sought to be emphasised and clarified by the\r\namendment of Section 10(23C) and the insertion of Section 13(8). This was\r\nParliaments’ emphatic way of saying that generally no commercial or business or\r\ntrading activity ought to be engaged by GPU charities but that in the course of\r\ntheir functioning of carrying out activities of general public utility, they can in a\r\nlimited manner do so, provided the receipts are within the limit spelt out in Clause\r\n(ii) of the proviso to Section 2(15).</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>241. Apparently, the trust was continuously treated as a GPU category charity\r\nand exempted under Section 10(23C)(iv) from 1984-85 onwards. For AY 2009-\r\n10, after considering the revised return of the trust, the Revenue was of the\r\nopinion that it was not entitled to claim exemption under Section 10(23C). The\r\nPunjab and Haryana High Court which dealt with the Trust’s present appeal was\r\nof the opinion that in Surat Art Silk (supra), this court had considered the\r\njudgment of the Privy Council. In that judgment, this Court had made some\r\nobservations that even though the activity of the publication of newspaper was\r\ncarried on commercial lines with the object of earning profit, it was an activity\r\nengaged by the Trust for the purposes of carrying out its charitable objects. The\r\nHigh Court upheld the revenue’s contention and based upon its analysis of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 2(15) concluded that the Trust’s income derived from its activities were\r\nbased on profit motive. In doing so, it was noticed that 85% of the trust’s revenue\r\nwas from advertisements and interest. The total revenue was ?161 crores out of\r\nwhich ?124.87 crores was received from advertisements and ?11.38 crores from\r\ninterest on FDRs; ?17.49 crores was from sale of newspapers and ?3.74 crores\r\nfrom subscriptions of the dailies.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>244. The question then is whether the nature of receipts and income garnered by\r\nthe Trust, in the course of actually carrying out its activity of publishing\r\nnewspaper, can be characterized as<i> “in the nature of trade, commerce or\r\nbusiness” or “service in relation to trade, commerce or business”</i>, for any\r\nconsideration. During the course of submissions, it was urged that advertisement\r\nrevenue should not be treated as business or commercial receipts since that\r\nvirtually is the lifeblood which sustains the activity of publication of newspapers.\r\nIt was highlighted that the object of maintaining the activity of publishing and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">distribution of newspaper remains the advancement of general public utility, as it\r\nhas the effect of both notifying and educating the general public about the current\r\naffairs and developments. The inclusion of advertisements also serves as\r\ninformation to the general public, especially in areas of employment, availability\r\nof resources, etc. Therefore, publication of advertisement is intrinsically\r\nconnected with the activity of printing and publishing of newspapers. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>245. The publication of advertisements for consideration, in the opinion of the\r\ncourt, by the newspaper, cannot but be termed as an activity in the nature of\r\ncarrying on business, trade or commerce for a fee or consideration. That the\r\nnewspaper published by the trust (“the Tribune”) in this case is funded mainly\r\nthrough advertisement is no basis for holding that publishing such advertisements\r\nby the Trust does not constitute business. The object of the trust to involve or\r\nengage in publication of newspapers. Publishing advertisements is obviously to\r\ngarner receipts which are in the nature of profit. Now, by virtue of the amended\r\ndefinition of Section 2(15), GPU charities can engage themselves in business or\r\ncommercial activity or profit, only if the receipts from such activities do not\r\nexceed the quantitative limit of the overall receipts earned in a given year. While\r\nthe assessee’s contention that publication of advertisement is intrinsically linked\r\nwith newspaper activity (thereby fulfilling sub-clause (i) of the proviso to Section\r\n2(15), i.e. an activity in the course of actual carrying on of the activity towards\r\nadvancement of the object) is acceptable, nevertheless, the condition imposed by\r\nsub-clause (ii) of the proviso to Section 2(15) has to also be fulfilled. In the\r\npresent case, that percentage had been exceeded, as evident from the record.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n246. In the light of the foregoing discussion, this court is of the opinion that the\r\nimpugned judgment and order of the Punjab and Haryana High Court cannot be\r\nsustained, to the extent it holds that the Tribune trust is not a GPU charity.\r\nHowever, having regard to the factual analysis, the judgment needs no\r\ninterference. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>250. This court is of the opinion that there is no clarity with respect to whether\r\nthe activity of supplying mid-day meals falls within the objects clause of the\r\nassessee society. The order of the ITAT as well as the High Court disclosed that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the assessee’s objects involved maintenance of health clubs, Arogya Kendra,\r\npromotion of moral values and provision of emergency relief. These do not\r\nhowever include the activity which it actually performed, i.e., entering into\r\ncontracts for supply of mid-day meals and the activity of cooking and supply of\r\nmid-day meals. In the absence of fuller material, it would not be possible for the\r\ncourt to assess the activity with which the assessee was engaged, and determine\r\nwhether it could be said to legitimately fall within the description of GPU. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>251. The first consideration would be whether the activity concerned was or is\r\nin any manner covered by the objects clause. Secondly, the revenue authorities\r\nshould also consider the express terms of the contract or contracts entered into by\r\nthe assessee with the State or its agencies. If on the basis of such contracts, the\r\naccounts disclose that the amounts paid are nominal mark-up over and above the\r\ncost incurred towards supplying the services, the activity may fall within the\r\ndescription of one advancing the general public utility. If on the other hand, there\r\nis a significant mark-up over the actual cost of service, the next step would be\r\nascertain whether the quantitative limit in the proviso to Section 2(15) is adhered\r\nto. It is only in the event of the trust actually carrying on an activity in the course\r\nof achieving one of its objects, and earning income which should not exceed the\r\nquantitative limit prescribed at the relevant time, that it can be said to be driven\r\nby charitable purpose.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>252. This court, in the normal circumstances, having regard to the above\r\ndiscussion, would have remitted the matter for consideration. However, it is\r\napparent from the records that the tax effect is less than Rs.10 lakhs. It is apparent\r\nthat the receipt from the activities in the present case did not exceed the\r\nquantitative limit of Rs.10 lakhs prescribed at the relevant time. In the\r\ncircumstances, the impugned order of the High Court does not call for\r\ninterference. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>253. In view of the foregoing discussion and analysis, the following conclusions\r\nare recorded regarding the interpretation of the changed definition of “charitable\r\npurpose” (w.e.f. 01.04.2009), as well as the later amendments, and other related\r\nprovisions of the IT Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>A. General test under Section 2(15)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>A.4. Section 11(4A) must be interpreted harmoniously with Section 2(15), with\r\nwhich there is no conflict. Carrying out activity in the nature of trade, commerce\r\nor business, or service in relation to such activities, should be conducted in the\r\ncourse of achieving the GPU object, and the income, profit or surplus or gains\r\nmust, therefore, be incidental. The requirement in Section 11(4A) of maintaining\r\nseparate books of account is also in line with the necessity of demonstrating that\r\nthe quantitative limit prescribed in the proviso to Section 2(15), has not been\r\nbreached. Similarly, the insertion of Section 13(8), seventeenth proviso to Section\r\n10(23C) and third proviso to Section 143(3) (all w.r.e.f. 01.04.2009), reaffirm this\r\ninterpretation and bring uniformity across the statutory provisions.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>B. Authorities, corporations, or bodies established by statute<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>B.2. However, at the same time, in every case, the assessing authorities would\r\nhave to apply their minds and scrutinize the records, to determine if, and to what\r\nextent, the consideration or amounts charged are significantly higher than the cost\r\nand a nominal mark-up. If such is the case, then the receipts would indicate that\r\nthe activities are in fact in the nature of “trade, commerce or business” and as a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">result, would have to comply with the quantified limit (as amended from time to\r\ntime) in the proviso to Section 2(15) of the IT Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\nB.3. In clause (b) of Section 10(46) of the IT Act, “commercial” has the same\r\nmeaning as “trade, commerce, business” in Section 2(15) of the IT Act.\r\nTherefore, sums charged by such notified body, authority, Board, Trust or\r\nCommission (by whatever name called) will require similar consideration – i.e.,\r\nwhether it is at cost with a nominal mark-up or significantly higher, to determine\r\nif it falls within the mischief of “commercial activity”. However, in the case of\r\nsuch notified bodies, there is no quantified limit in Section 10(46). Therefore, the\r\nCentral Government would have to decide on a case-by-case basis whether and\r\nto what extent, exemption can be awarded to bodies that are notified under\r\nSection 10(46).\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">B.4. For the period 01.04.2003 to 01.04.2011, a statutory corporation could\r\nclaim the benefit of Section 2(15) having regard to the judgment of this Court in\r\nthe Gujarat Maritime Board case (supra). Likewise, the denial of benefit under\r\nSection 10(46) after 01.04.2011 does not preclude a statutory corporation, board,\r\nor whatever such body may be called, from claiming that it is set up for a\r\ncharitable purpose and seeking exemption under Section 10(23C) or other\r\nprovisions of the Act.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>C. Statutory regulators</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>C.1. The income and receipts of statutory regulatory bodies which are for\r\ninstance, tasked with exclusive duties of prescribing curriculum, disciplining\r\nprofessionals and prescribing standards of professional conduct, are prima facie\r\nnot business or commercial receipts. However, this is subject to the caveat that if\r\nthe assessing authorities discern that certain kinds of activities carried out by such\r\nregulatory body involved charging of fees that are significantly higher than the\r\ncost incurred (with a nominal mark-up) or providing other facilities or services\r\nsuch as admission forms, coaching classes, registration processing fees, etc., at <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">markedly higher prices, those would constitute commercial or business receipts.\r\nIn that event, the overall quantitative limit prescribed in the proviso to Section\r\n2(15) (as amended from time to time) has to be complied with, if the regulatory\r\nbody is to be considered as one with ‘charitable purpose’ eligible for exemption\r\nunder the IT Act.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">C.2. Like statutory authorities which regulate professions, statutory bodies\r\nwhich certify products (such as seeds) based on standards for qualification, etc.\r\nwill also be treated similarly.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>D. Trade promotion bodies\r\nBodies</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>involved in trade promotion (such as AEPC), or set up with the objects of\r\npurely advocating for, coordinating and assisting trading organisations, can be\r\nsaid to be involved in advancement of objects of general public utility. However,\r\nif such organisations provide additional services such as courses meant to skill\r\npersonnel, providing private rental spaces in fairs or trade shows, consulting\r\nservices, etc. then income or receipts from such activities, would be business or\r\ncommercial in nature. In that event, the claim for tax exemption would have to\r\nbe again subjected to the rigors of the proviso to Section 2(15) of the IT Act. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">E. Non-statutory bodies</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>E.1. In the present batch of cases, non-statutory bodies performing public\r\nfunctions, such as ERNET and NIXI are engaged in important public purposes.\r\nThe materials on record show that fees or consideration charged by them for the\r\npurposes provided are nominal. In the circumstances, it is held that the said two\r\nassessees are driven by charitable purposes. However, the claims of such nonstatutory organisations performing public functions, will have to be ascertained\r\non a yearly basis, and the tax authorities must discern from the records, whether\r\nthe fees charged are nominally above the cost, or have been increased to much\r\nhigher levels. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>G. Private Trusts</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>So far as the appeal by assessee-Tribune Trust is concerned, it has been held that\r\ndespite advancing general public utility, the Trust cannot benefit from exemption\r\noffered to entities covered by Section 2(15) as the records reveal that income\r\nreceived from advertisements, constituted business or commercial receipts.\r\nConsequently, the limit prescribed in the proviso to Section 2(15) has to be\r\nadhered to for the Trust’s claim of being as a charity eligible for exemption, to\r\nsucceed. Therefore, despite differing reasoning, this court has held that the\r\nimpugned judgment of the High Court does not call for interference.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>H. Application of interpretation</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>H. At the cost of repetition, it may be noted that the conclusions arrived at by\r\nway of this judgment, neither precludes any of the assessees (whether statutory,\r\nor non-statutory) advancing objects of general public utility, from claiming\r\nexemption, nor the taxing authorities from denying exemption, in the future, if\r\nthe receipts of the relevant year exceed the quantitative limit. The assessing\r\nauthorities must on a yearly basis, scrutinize the record to discern whether the\r\nnature of the assessee’s activities amount to “trade, commerce or business” based\r\non its receipts and income (i.e., whether the amounts charged are on cost-basis,\r\nor significantly higher). If it is found that they are in the nature of “trade,\r\ncommerce or business”, then it must be examined whether the quantified limit (as\r\namended from time to time) in proviso to Section 2(15), has been breached, thus\r\ndisentitling them to exemption. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>255. This batch of matters is disposed of, in the above terms. Pending\r\napplications, if any, are dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2a0c1a0f5520c6115b1e442f96666c0f.JPG', '9676e417cc7c20be45026458202fe9ab.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-21', 1, '', '', '2022-10-20 14:07:28', '2022-10-21 12:06:47'),
(2320, 'hgJPVdTYBoN4sJFB7JO37BxK6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Gratuity is paid to safeguard financial security of a person at the time of retirement. Bank cannot adjust gratuity amount payable to its employee towards outstanding loan account. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Canara Bank Vs Shantha Kumari.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 11463 of 2020 decided on 13 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioner is a nationalised Bank constituted\r\nunder the Banking Companies (Acquisition & Transfer\r\nof Undertakings) Act, 1970. One Mr. Srimantha D,\r\nhusband of the respondent joined the service of the\r\npetitioner-Bank on 13.3.1975 as a Peon and\r\nsubsequently was promoted as a Clerk with effect\r\nfrom 24.8.1987. During his service, the petitioner\r\nhad availed Housing Loan which was being repaid by\r\nhim from time to time. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. In the year 2005, alleging that there is gross\r\nmisconduct on the part of the husband of the\r\nrespondent, disciplinary proceedings were taken up\r\nagainst him and a charge sheet was issued on\r\n14.12.2005. The Enquiry Officer submitted its\r\nfinding on 20.5.2006, holding the charge to be\r\nproved and thereafter, punishment of compulsory\r\nretirement was imposed on 27.7.2006 by the\r\ndisciplinary authority.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Appeal preferred by the husband of the respondent\r\nwas dismissed on 3.8.2007. An industrial dispute was\r\nfiled. In the meanwhile, the said husband expired.\r\nOn his expiry, his legal heirs, i.e. the wife and\r\nchildren, were impleaded in the said industrial\r\ndispute, which came to be withdrawn on 11.12.2018.\r\nIn the meanwhile, an application filed by the husband\r\nin the year 2017 for release of the gratuity amount\r\ncame to be rejected. Hence, the employee had <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">approached the Controlling Authority for a direction\r\nto make payment of the said amounts.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. The short question that would arise in the\r\npresent matter is whether the loan account of\r\nan employee can be adjusted towards the\r\ngratuity amounts?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. There is a special treatment for payment of gratuity\r\nboth under the Payment of Gratuity Act and also\r\nunder the Code of Civil Procedure, 1908. Gratuity\r\nhas been given a special protection and special <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">treatment inasmuch as it is made absolutely clear\r\nthat the gratuity amounts can neither be attached\r\nnor can any garnishee order be passed</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">14. In the present case, admittedly, there is no demand\r\nmade for repayment of Housing loan interest by the\r\nBank on the employee and/or after his expiry on his\r\nlegal heirs/legal representatives. The Bank has\r\nunilaterally on the basis of an alleged authorization, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">determined the amount due on its own and\r\nrecovered the same from gratuity amount payable by\r\nit, there being no dispute about the requirement of\r\npayment of gratuity amount.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. Home loan is governed by the agreement of loan. It\r\nis for the Bank to act in terms of the said agreement\r\nand exercise all rights under the said agreement as\r\nagainst the debtor. The Bank could not have\r\nadjusted the same from and out of gratuity amount,\r\nwhich are protected under Section 7 of The Payment\r\nof Gratuity Act, 1972. It is this factor which has\r\nbeen taken into consideration by the Appellate\r\nAuthority and the action of the Bank in adjusting the\r\nsaid amount has been set aside.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">18. From the facts, it is seen that the retirement order\r\ndated 27.07.2006 was challenged before the\r\nAppellate Authority and thereafter industrial dispute\r\nwas raised in CR No.72/2008 before the CGIT,\r\nLabour Court in the event of the employee having\r\napplied for payment of gratuity that would amount to\r\ngiving up the employment in the proceedings before\r\nthe CGIT/Labour Court since the employee could only\r\nbe paid after the person accepts his retirement. In\r\nthe present case, compulsory retirement order was\r\nunder challenge there is no scope for the employee </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to have made a claim for gratuity, it is only in the\r\nyear 2017 that upon he attaining the age of\r\nsuperannuation, that application for release of\r\ngratuity amount has been filed and consequently, the\r\nproceedings before the Labour Court were also\r\nwithdrawn.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">19. Therefore, I am of the considered opinion that there\r\nis no delay in filing the application for payment of\r\ngratuity amounts. Be that as it may, even otherwise\r\nin terms of the proviso to sub clause (iii) of sub Rule\r\n(1) of Rule 10, the Authority is also authorised to\r\ncondone the delay if any. There is neither restriction\r\non the period which could be condoned nor there is\r\nan embargo imposed under the said Rules which\r\nwould disentitle the applicant to receive any interest.\r\nHence, on this ground also the writ petition will have\r\nto be rejected.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n i) Writ petition stands dismissed.</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p>', '97f01291821c0b0865c3a3d5747dbdec.JPG', '535d762dabcf8f2c0f833aece417bcb0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-21', 1, '', '', '2022-10-19 19:53:42', '2022-10-21 03:22:08');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2282, 'w8OKzSagZSr25UtjhQzQN5qsf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Federation of Karnataka Chambers of Commerce and Industry is not ‘State’ within the meaning of Article 12 of the Constitution of India. Karnataka High Court. ', '<p class=\"MsoNormal\"><strong><span lang=\"EN-US\" style=\"mso-ansi-language: EN-US;\">B.L. Shankarappa Vs Federation of Karnataka Chambers and others. </span></strong></p>\r\n<p class=\"MsoNormal\"><strong><span lang=\"EN-US\" style=\"mso-ansi-language: EN-US;\">Writ Petition 7123 of 2022 decided on 30 September 2022. </span></strong></p>\r\n<p class=\"MsoNormal\"><strong><span lang=\"EN-US\" style=\"mso-ansi-language: EN-US;\">Justice Krishna S. Dixit. </span></strong></p>\r\n<p class=\"MsoNormal\"><strong>Petitioner, an elected member of 1st Respondent – Federation of Karnataka Chambers of Commerce and Industry (hereafter ‘FKCCI’) is knocking at the doors of Writ Court grieving against the alleged mismanagement of and undemocratic practices perpetrated in the FKCCI.</strong></p>\r\n<p class=\"MsoNormal\"><strong>2. After service of notice, the Respondents entered appearance through their advocates and opposed the Writ Petition. The contesting Respondents have filed their Statements of Objections. Learned counsel appearing for the respondents resisted the petition contending that: the FKCCI not being an instrumentality<span style=\"mso-ansi-language: EN-US;\"> </span>of ‘State’ under Article 12 of the Constitution of India and its actions/inactions not animated with public law elements, writ petition is misconceived; petitioner does not have a justiciable right and therefore, he cannot litigate; prayers of the kind cannot be granted in constitutional jurisdiction; petitioner is liable to be nonsuited on the grounds of suppresio veri; even otherwise, he can work out alternate remedies availing under the 2013 Act. So contending, they seek dismissal of the writ petition.</strong></p>\r\n<p class=\"MsoNormal\"><strong>3. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines indulgence in the matter for the following reasons</strong></p>\r\n<p class=\"MsoListParagraph\" style=\"text-indent: -18.0pt; mso-list: l0 level1 lfo1;\"><strong><!-- [if !supportLists]--><span style=\"mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;\"><span style=\"mso-list: Ignore;\">      A.<span style=\"font-style: normal; font-variant: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: \'Times New Roman\';\">    </span></span></span><!--[endif]-->AS TO FKCCI BEING ‘INSTRUMENTALITY OF STATE’ UNDER ARTCILE 12 OF THE CONSTITUTION:</strong></p>\r\n<p class=\"MsoNormal\"><strong>(v) An association of persons incorporated or not, may undertake activities very much in public interest; say for example, it may profess to protect the sovereignty & integrity of nation; laudable it is, undoubtedly; however thereby, it does not become a ‘State Agency’ for the purpose of Part III of the Constitution. Similarly, if an entity is formed with the sole object of giving effect to Part IV Directives that per se does not take it to the precincts of Article 12, inasmuch as the public as such, is not entitled to demand for the implementation of professed objects of the said entity. What is to be seen is, whether the functions of such a body are pregnant with sufficient public law elements as to justify invocation of writ jurisdiction; in the case at hands, the answer to this question is a plain ‘NO’. The ingenuity of arguments advanced at the Bar, cannot catapult a private entity like FKCCI into the ever expanding orbit of Article 12.</strong></p>\r\n<p class=\"MsoNormal\"><strong>(vii) The offshoot argument of the petitioner that regardless of status of FKCCI as an instrumentality of the State, petitioner can invoke the writ jurisdiction in matters like this, at a first blush appears attractive. However, a deeper examination shows its hollowness. True it is that our Constitution Makers have widely phrased Articles 226 & 227 qua Article 32 so that the traditional shackles of English Law of Writs would not come in the way of doing justice. This court hastens to add that here again, relaxation of the rigor and not its removal, is brought about. The law of writs has marched from ‘status to function’. Jurisdiction under these Articles extends to adjudging causes of action not necessarily founded on the violation of fundamental rights, is true. However, it is conditioned by another factor namely such causes should be predominantly animated with public law elements.; the Respondent need not be a ‘State’ or its ‘instrumentality’ for the purpose of subjecting its actions to judicial review if, public law elements galore in them. Conversely, writ remedy does not avail even against a State or its instrumentality, should its actions lack required amount of public law elements vide LIFE INSURANCE COMPANY vs. ESCORTS LTD4 , as rightly contended by Sr. Advocates appearing for the contesting respondents.</strong></p>\r\n<p class=\"MsoListParagraph\" style=\"text-indent: -18.0pt; mso-list: l0 level1 lfo1;\"><strong><!-- [if !supportLists]--><span style=\"mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;\"><span style=\"mso-list: Ignore;\">     B.<span style=\"font-style: normal; font-variant: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: \'Times New Roman\';\">    </span></span></span><!--[endif]-->AS TO CONTRACTUAL NATURE OF MEMBERSHIP QUA THE COMPANY:</strong></p>\r\n<p class=\"MsoNormal\"><strong>(ii) Article 11 of AOA provides for composition of Managing Committee of FKCCI which comprises inter alia of 48 Members from various segments i.e., trade, business, industry, profession, services, etc. The consenting past Presidents also happen to be the members, subject to certain compliances. Voting rights are given to the members vide Art.12.9 of AOA. Art. 13 defines the powers & functions of the Committee. Art. 12.1 prescribes the procedure for the Committee Meetings; If the petitioner seeks a structural change in the Management at the hands of this Court (assuming maintainability of the petition), he has to demonstrate a right inhering in him and a corresponding public duty resting on the shoulders of FKCCI, ubi jus ibi remedium being the baseline. However, despite vociferous submissions, the same remains unsubstantiated, to say the least.</strong></p>\r\n<p class=\"MsoListParagraph\" style=\"text-indent: -18.0pt; mso-list: l0 level1 lfo1;\"><strong><!-- [if !supportLists]--><span style=\"mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;\"><span style=\"mso-list: Ignore;\">       C.<span style=\"font-style: normal; font-variant: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: \'Times New Roman\';\">     </span></span></span><!--[endif]-->DESIREABILITY OF HAVING PAST PRESIDENTS IN THE MANAGERIAL BODIES:</strong></p>\r\n<p class=\"MsoNormal\"><strong><span lang=\"EN-US\" style=\"mso-ansi-language: EN-US;\"> </span>(ii) Such ideas are enacted even in the campus laws such as university legislations which provide for the appointment of ‘Old Guards’ as professors emeritus and their inclusion in the Senate/Syndicate. For instance, section 6.2 of the Visva Bharati Act, 1951 relating to Tagore’s ‘Santiniketana’ provides for such arrangements. Pari materia provisions that are aimed at maximizing the utilization of ‘human capital of age’, i.e., accumulated wisdom, do obtain across the globe in some form or the other. After all, ‘grey hair has to be respected’ as of necessity, if not because of virtue. This Committee scrutinizes the application for membership. It hardly needs to be stated that this is not a solitary instance. Statutes as such, in so many words may not say this explicitly; however there is nothing in them that repels doing of gainful things like this. These things are internalized by making suitable provisions in the corporate policies. This is how the extant MOA/AOA appear to have been structured in the FKCCI.</strong></p>\r\n<p class=\"MsoNormal\"><strong>(iii) The above having been said, it cannot be denied that there is some sense & logic in the submission made on behalf of the petitioner that the inclusion of too many Past Presidents may jeopardize the flow of fresh blood into the Management Committee and that the FKCCI should not be rendered into a “gymkhana club like thing” wherein the scope for induction of new members becomes too much restrictive, the views of Past Presidents predominating the decision making process. It is desirable that there shall be no scope for grievance of the kind. However, it is for the wisdom of managerial section of the FKCCI to take a call on this.</strong></p>\r\n<p class=\"MsoListParagraph\" style=\"text-indent: -18.0pt; mso-list: l0 level1 lfo1;\"><strong><!-- [if !supportLists]--><span style=\"mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;\"><span style=\"mso-list: Ignore;\">      D.<span style=\"font-style: normal; font-variant: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: \'Times New Roman\';\">    </span></span></span><!--[endif]-->AS TO SUB-COMMITTEE RECOMMENDATIONS AND THEIR JUSTICIABILITY:</strong></p>\r\n<p class=\"MsoNormal\"><strong>(iii) There is yet another aspect of law: that once the recommendation of the Bye-law Committee is tabled, deliberated & accepted, that would not proprio vigor bring about change in the structure of management of the FKCCI. The companies incorporated u/s 8 of the 2013 Act cannot amend or alter their Memorandum of Association and Articles of Association sans prior approval of Central Government. Section 14(1) provides that subject to the provisions of this Act and the conditions contained in the Memorandum, if any, a company may, by a special resolution, alter its Articles. The altered Articles are required to be filed with the Registrar of Companies u/s 14(2). The manner of passing a special resolution is provided u/s 114(2). Thus, the Act prescribes a specific procedure for amending the Articles of Association of a company u/s 14, in addition to other requirements u/s 8. Any grievance in respect of Articles of Association of FKCCI is remediable in the manner provided u/s 14 read with Section 114(2) of the Act. Section 100 permits any member of the company to request its Managing Committee to call for an Extraordinary General Meeting to consider grievances raised by him; if the Committee does not agree, he himself can requisition a meeting of course, after complying with the requirement under this provision. If his request does not materialize, a member can also approach the National Company Law Tribunal (NCLT) for the redressal of his grievance. This is stated to have been done by a few past Presidents/office bearers, earlier. That being the position, petitioner could not have hastened to complain to the Writ Court, bypassing all these avenues.</strong></p>\r\n<p class=\"MsoListParagraph\" style=\"text-indent: -18.0pt; mso-list: l0 level1 lfo1;\"><strong><!-- [if !supportLists]--><span style=\"mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;\"><span style=\"mso-list: Ignore;\">      E. <span style=\"font-style: normal; font-variant: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: \'Times New Roman\';\">  </span></span></span><!--[endif]-->AS TO APPOINTMENT OF OBSERVERS FROM OUTSIDE THE MEMBERSHIP:</strong></p>\r\n<p class=\"MsoNormal\"><strong>(iii) Lastly, the submission made on behalf of the petitioner for termination of illegal/ineligible members including Trusts such as, ‘Vasavi Vidyanikethan Trust’, again cannot be subjected to judicial review. Who should be members and who should not be, are all matters of private policy as incorporated in the MOA/AOA/Byelaws and the decision making in matters like this is left to the Managing Committee of FKCCI, for the reasons already discussed supra. An argument to the contrary would render the Writ Court the Managing Body. That is not the object with which writ jurisdiction is constitutionally conferred on this Court.</strong></p>\r\n<p class=\"MsoNormal\"><strong>In the above circumstances, this writ petition being thoroughly devoid of merits, is liable to be dismissed and accordingly it is costs having been made easy.</strong></p>', '32fa07fcf8fea12bcfb3ee5d8208e126.JPG', '6e1bbaa97fcbe41e9ca1d8893c260fab.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-18', 1, '', '', '2022-10-11 21:02:44', '2022-10-18 12:28:40'),
(2301, 'YXTeSKKyxWsJZ7tAMOv8LhRWT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Section 319 Cr.P.C is applicable to proceedings under Section 138 of the Negotiable Instruments Act and the Court can add other person as accused at a later stage. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>MPP Technologies Pvt Ltd Vs Rupa Banerji Proproetrix RNB Design ARC Systems.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 4600 of 2022 decided on 30 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Facts adumbrated are as follows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The petitioner/complainant claims to be a leading name in the\r\nmanufacture of sheet metal fabricated products and transformer\r\ntanks for overseas and domestic market to meet specific needs of\r\ncustomers and claims to have spread all over the world. The\r\npetitioner and one R.N.Banerji and Son entered into a Memorandum\r\nof Understanding (‘MoU’ for short) on 2-02-2006, in terms of which\r\nR.N.Banerji and Son were appointed as marketing associates of the\r\npetitioner and were required to market and install resistant doors –\r\n‘System Schroders’ door and clean room and duct door <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">manufactured by the complainant. It is the claim of the petitioner\r\nthat in terms of MoU, R.N.Banerji and Son became responsible for\r\nmarketing, promotion, after service installation etc. Subsequent to\r\nsigning of MoU, one Mr. Jolly Banerji began placing purchase orders\r\nin the name of ‘RNB Design Arc Systems’ (‘RNB’ for short) and due\r\nto the long standing business relationship between the petitioner\r\nand R.N.Banerji and Son, the petitioner claims to have immediately\r\nagreed to the arrangement and continued to make supplies despite\r\nthe change of name of the concern and claimed that all transactions\r\nand correspondences were exchanged between the petitioner and\r\nJolly Banerji.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. It is the further claim of the petitioner that despite the\r\nchange of name of the proprietary concern Jolly Banerji continued\r\nto represent himself as the proprietor of RNB. Since all\r\ncorrespondences happened between Jolly Banerji and the\r\npetitioner, the petitioner claims to have bona fide believed that Jolly\r\nBanerji was the proprietor of RNB and at no point in time Jolly\r\nBanerji disclosed that he was not the proprietor but his wife Rupa <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Banerji was the proprietrix of RNB and he was only representing\r\nRupa Banerji.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The cheques having been presented were dishonoured or\r\nunpaid by the banker with an endorsement “payment stopped by\r\nthe drawer”. Pursuant to such endorsement, a notice came to be\r\nissued to the proprietary concern and a reply was also given by the\r\nRNB, after which, the petitioner in all these cases invoked Section\r\n200 of the CrPC and registered private complaints for offences\r\npunishable under Sections 138 and 141 of the Negotiable <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Instruments Act 1881 (‘the Act’ for short). Cognizance was taken\r\non the offences and the matter was set for trial. It is what happens\r\nduring the trial that concerns these petitions.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. I have given my anxious consideration to the submissions\r\nmade by the respective learned counsel and perused the material\r\non record. In furtherance whereof, the only issue that falls for my\r\nconsideration is:\r\n<i>“Whether the application under Section 319 of the CrPC\r\nthat was allowed by the learned Magistrate in permitting\r\nMrs. Rupa Banerji and Mr. P.K.Majumdar to be arrayed as\r\naccused along with the Company and the order of the\r\nlearned Sessions Judge in Criminal Revision Petition in\r\nsetting aside the said order are tenable in law?” </i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">12. The afore-narrated facts are not in dispute. The\r\nrelationship of business between the parties is not in dispute. In\r\nthe year 2006 R.N.Banerji and Son entered into a MoU with the\r\npetitioner for generation of business. It is in furtherance of the said </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">business which went on years, cheques were given by the\r\nproprietorship concern. A legal notice was caused upon the\r\nproprietorship concern on 1-08-2016. The notice was replied by the\r\nproprietorship concern on 12-08-2016. A perusal at the notice\r\nwould indicate that the notice was sent to the proprietorship\r\nconcern and replied by the proprietorship concern. The narration in\r\nthe notice or reply thereto would not indicate that on behalf of an\r\nindividual that the notice is sent or an individual has replied to the\r\nsaid notice. It was to a proprietorship concern and from the\r\nproprietorship concern to the petitioner/complainant. Legal\r\nproceedings were instituted by the petitioner against the firm\r\ninvoking Section 200 of the Cr.P.C. The proceedings go on before\r\nthe concerned Court. The reply of an employee of the complainant\r\none Mr.L.G.Satish in response to a question put by the counsel for\r\nthe accused as to who was the proprietor of RNB, was Mrs. Rupa\r\nBanerji. Owing to the said answer in the cross-examination of the\r\ncomplainant witness, an application is filed immediately by the\r\ncomplainant under Section 142(b) of the Act read with Section 473\r\nof the Cr.P.C. and Section 5 of the Limitation Act. The learned </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Magistrate issued notice to the accused on the said application so\r\nfiled by the complainant.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. The reason to arrive at this conclusion is that the\r\npetitioner had business with the proprietorship concern. Cheques\r\nare issued by the proprietorship concern. The proceedings are\r\ninstituted against the proprietorship concern added with person\r\nwhom the petitioner was in contact to be the proprietor. The plea\r\nnow put up is that the complainant has, shot an arrow to a wrong\r\ntarget is untenable. If it were to be a Company, then the Managing\r\nDirector or the Directors would have been responsible if they had\r\nany role to play in the transaction. If it were to be a partnership <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">concern, it would have been a circumstance altogether different, as\r\nthere would be more than one person in a partnership concern, but\r\nthe case at hand is a proprietorship concern. There can only be one\r\nproprietor or proprietrix, as the case would be. The accused is the\r\nproprietorship concern but who the proprietor or proprietrix would\r\nbecome immaterial, more so, in the light of the fact that at no point\r\nin time no person divulged that either Jolly Banerji is the proprietor\r\nor Mrs. Rupa Banerji is the proprietrix. It is in certain civil\r\nproceedings the complainant comes across both Jolly Benerji and\r\nMrs. Rupa Banerji claiming to be proprietor or proprietrix of RNB. It\r\nis then the application is filed. The evidence though was by the\r\ncomplainant’s witness that proprietrix is Mrs. Rupa Banerji and on\r\nthat score holding that the petitioner was always aware that it was\r\nMrs. Rupa Banerji who is the proprietrix is contrary to records.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. The contention of the learned senior counsel representing\r\nthe respondent/Mrs.Rupa Banerji that at this juncture they cannot\r\nbe arrayed as parties is unacceptable. The reliance placed on the\r\njudgment in the case of N.HARIHARA KRISHNAN V. J.THOMAS\r\n– (2018) 13 SCC 663 would be inapplicable to the facts of the\r\ncase at hand, as the accused there was a partnership firm and not a\r\nproprietorship concern. It was a transaction between one M/s\r\nNorton Granites & Spinners (P) Ltd. and one M/s Srivari Exports, a\r\npartnership firm. In the case at hand, the transaction is between\r\nthe petitioner/Company and the proprietorship concern. Therefore,\r\nthe principles on which the Apex Court renders its judgment in\r\nN.HARIHARA KRISHNAN is entirely different from the facts\r\nobtaining in the case at hand. The contention that offence under <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 138 of the Act being offender centric and not offence centric\r\nis a reference made by the Apex court while rendering its judgment\r\nconcerning the partnership firm which again would not become\r\napplicable to the case at hand. The case at hand is concerning\r\nproprietorship concern in which only one person is responsible\r\neither the proprietor or the proprietrix. The accused have handed\r\nover cheques in furtherance of the transaction to the\r\npetitioner/Company and those transactions are close to 42 in\r\nnumber and the amount involved is close to Rs.66.00 lakhs. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Having issued cheques for the aforesaid amount in all the\r\ntransactions, the accused cannot now wash of their liability on a\r\ntechnical plea that notice is not issued to Mrs. Rupa Banerji and the\r\nplea of Mr.Jolly Banerji that he is not the signatory to the cheques\r\nor any other hypertechnical plea cannot be taken to escape the\r\nclutches of law. As observed hereinabove, the proprietorship\r\nconcern is answerable through the proprietor or the proprietrix, be\r\nit Mr.Jolly Banerji or Mrs.Rupa Banerji. It is an admitted fact that\r\nMrs. Rupa Banerji is the proprietrix. Therefore, the learned\r\nMagistrate was right in allowing the application filed under Section\r\n319 of the Cr.P.C. and permitting Mrs. Rupa Banerji and\r\nMr.P.K.Majumdar to be arrayed as accused along with\r\nproprietorship concern and they will have to meet the accusation.\r\nMr.P.K.Majumdar is roped in on the ground that he is signatory to\r\nseveral cheques. A caveat, this principle would not become\r\napplicable to a Company or a partnership firm. These observations </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and finding are limited only to a proprietorship concern, as there\r\ncannot be more than one proprietor or proprietrix.\r\n 19. In the light of the preceding analysis, I find that the order\r\nof the learned Sessions Judge upturning the order passed by the\r\nlearned Magistrate is fundamentally flawed, requiring appropriate\r\ninterference.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> (i) The Criminal Petitions are allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '00858b7d5affd23ecf49d7d261a726bd.JPG', '84cac57219daf6e07a2c4ffcea55c414.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-18', 1, '', '', '2022-10-16 18:52:13', '2022-10-18 08:46:52'),
(2352, 'f6IOwhPKW9tKHd5AIywVCmAEj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Social impact assessment prior to issuance of preliminary notification under the 2013 land acquisition Act must be by mandatory publication of the notification in the official gazette. Else the acquisition proceedings becomes illegal. Karnataka High Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>A.A. Attar through LRS and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 147109 of 2020 decided on 19 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.R. Krishna Kumar</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioners in all the petitions claim to be the\r\nresidents residing at Byadagi Taluk, Haveri district, and\r\nhave been carrying on business in the market area in the\r\nsaid town. Pursuant to the request dated 20.02.2019 made\r\nby the Deputy Commissioner, Haveri, the State of\r\nKarnataka granted approval on 18.09.2019 for acquisition\r\nof lands including the lands of the petitioners for the\r\npurpose of widening Gajendragad – Sorab State Highway -\r\n136 between Kilometres 237.05 to 237.90 in Byadagi town.\r\nAggrieved by the same, some of the petitioners\r\napproached this Court in W.P.No.116151/2019 and\r\nW.P.No.108344/2020. By final order dated 12.03.2020, this\r\nCourt disposed of the said petitions that the respondents –\r\nauthorities shall initiate acquisition proceedings for\r\nacquisition of the land of petitioners and other land owners\r\nby providing an opportunity to them and proceeding further\r\nin accordance with law</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The Right to Fair Compensation and\r\nTransparency in Land Acquisition, Rehabilitation and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Resettlement Act, 2013 (for short ‘the said Act of 2013’)\r\ncame into force w.e.f. 01.01.2014. Section 109 of the said\r\nAct of 2013 empowers the Central Government and State\r\nGovernments to frame Rules. The procedure empowering\r\nthe respective State Government to frame Rules is\r\nprovided under Sections 111 and 112 of the said Act of\r\n2013. Exercising powers under the aforesaid provisions,\r\nthe respondents – State of Karnataka framed the Right to\r\nFair Compensation and Transparency in Land Acquisition,\r\nRehabilitation and Resettlement (Karnataka) Rules, 2015,\r\nwhich came into force w.e.f. 17.10.2015. On 16.07.2019,\r\nthe respondents – State amended the said Act of 2013 by\r\nenacting the Right to Fair Compensation and Transparency\r\nin Land Acquisition, Rehabilitation and Resettlement\r\n(Karnataka Amendment) Act, 2019 vide Karnataka Act\r\nNo.16 of 2019 w.e.f. 16.07.2019 (for short ‘the said\r\nAmendment Act, 2019’). As per the said amendment, subclause(u) was inserted to sub-section (2) of Section 109 of\r\nthe said Act of 2013 empowering the State Government to\r\nframe Rules to give effect to the said Amendment Act of\r\n2019.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">6. A perusal of the order sheet maintained in the\r\naforesaid petitions will indicate that in view of the specific </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contention of the petitioners that the respondents – State\r\nwere attempting to demolish the existing shops for the\r\npurpose of road widening for State Highway – 136 even\r\nbefore issuing the final notification, this Court directed the\r\nrespondents not to demolish the shops. The said interim\r\norder was subsequently continued and remained in force\r\nduring the hearing of the petitions.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. During the pendency of the present petitions, the\r\nState Government amended the said Rules of 2015 vide\r\nGazette notification dated 28.03.2022, thereby bringing into\r\nforce the Right to Fair Compensation and Transparency in\r\nLand Acquisition, Rehabilitation and Resettlement\r\n(Karnataka) (Amendment) Rules, 2020 (for short ‘the said\r\nAmendment Rules, 2020’). As per the said amendment,\r\nproviso was inserted to Rule 34 by stating that the\r\nprovisions of Rules 21 to 27 and Rules 30 to 34 shall not\r\napply while implementing Government projects and public\r\nprivate partnership projects which are in public interest\r\nnotified under Section 10-A of the said of Act 2013</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. After having given my anxious consideration to\r\nthe rival submissions and on perusal of the material on\r\nrecord, the following points arise for consideration in the\r\npresent petitions:-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Whether the impugned notification dated\r\n16.05.2020 issued by the State under Section 10-A of the\r\nsaid Act of 2013 (Karnataka Amendment) is legal, valid and\r\nproper?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> (ii) Whether the impugned preliminary notification\r\ndated 05.06.2020 issued under Section 11(1) of the said\r\nAct of 2013 is valid and proper?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> (iii) Whether the impugned final notification dated\r\n26.07.2021 issued under Section 19(1) of the said Act of\r\n2013 is valid and proper?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> (iv) Whether the Amendment to Rule 34 of the said\r\nRules of 2015 (Karnataka) vide notification dated\r\n28.03.2022 is applicable to the instant case?<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Re-Point No.1:-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13.7 A conjoint reading of Section 10-A r/w 3(v) of\r\nthe said Act of 2013, will indicate in unmistakable terms\r\nthat the requirement of publication of the notification in the\r\nofficial gazette is extremely strict, stringent and rigid and\r\nthere cannot be any relaxation of the said mandatory\r\nrequirement; to put it differently, so long as the notification\r\nhas not been gazetted or published in the official gazette,\r\nthe same cannot be construed or treated as a valid\r\nnotification under Section 10-A of the said Act of 2013 and\r\nthe same deserves to be declared and held as illegal,\r\ninvalid, inoperative, unlawful and non-est in the eye of law\r\nand consequently, no reliance can be placed upon the\r\nimpugned notification dated 16.05.2020 by the respondents\r\n– State for proceeding further in the acquisition\r\nproceedings and from taking any steps in this regard\r\nincluding issuance of the preliminary notification and all\r\nacts, deeds and things done by the respondents, pursuant <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to the aforesaid illegal and invalid impugned notification\r\ndated 16.05.2020 would also be rendered illegal and invalid\r\nin the eye of law. At any rate, even assuming that the\r\nrespondents – State are entitled to publish the impugned\r\nnotification dated 16.05.2020 in the official gazette today or\r\nsubsequently, the said publication would not cure the initial\r\ndefect of non-publication prior to issuance of the\r\npreliminary notification and post – facto publication cannot\r\nbe made the basis to validate or legalise the subject\r\nacquisition proceedings initiated pursuant to the impugned\r\nnotification.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 13.8 To reiterate, the impugned notification dated\r\n16.05.2020 purported to have been issued under Section\r\n10-A (Karnataka Amendment) of the said Act of 2013\r\nhaving not been gazetted or published in the State official\r\ngazette as mandatorily required under the said provision,\r\nthe impugned notification is invalid, inoperative, void,\r\nunlawful and non-est in the eye of law and consequently,\r\nthe subject acquisition proceedings initiated pursuant to the\r\nimpugned notification are also clearly illegal, invalid and\r\nunenforceable in law.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.1 is answered accordingly by declaring and\r\nholding that the impugned Notification dated 16.05.2020 is\r\nillegal, invalid, inoperative, void, unlawful and non-est in the\r\neye of law and consequently, the subject acquisition\r\nproceedings initiated pursuant to the impugned notification\r\nare also clearly illegal, invalid and unenforceable in law.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Re-Point No.2:-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14.2 Insofar as the contention urged on behalf of the\r\nState that the subject acquisition proceedings are in the\r\nnature of an infrastructure project as defined in Section 10- <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">A(b) of the said Act of 2013, which exempts following the\r\nprocedure under Sections 4 to 8 of Chapter II, thereby\r\nrendering the preliminary notification valid and legal is\r\nconcerned, needless to state that in view of my finding\r\nabove that the impugned notification dated 16.05.2020 is\r\nillegal and invalid, there is no exemption whatsoever\r\navailable to the respondents – State to bypass the said\r\nprocedure and consequently, the impugned preliminary\r\nnotification issued without either following the mandatory\r\nprocedure or without obtaining valid and legal exemption is\r\nalso illegal and invalid and the said contention cannot be\r\naccepted.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">14.3 In view of the aforesaid facts and\r\ncircumstances, Point No.2 is also answered by holding that\r\nthe impugned notification dated 16.05.2020 is illegal and\r\ninvalid and that the same deserves to be quashed.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Re-Point No.3:-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15.5 As is clear from the aforesaid Affidavit, the\r\nrespondents – State have admitted in unequivocal, definite\r\nand unambiguous terms that there has not been\r\ncompliance of Rule 22 of the said Rules of 2022, which\r\nmandates an opportunity of public hearing in favour of the\r\nland owners as provided in the said Rules. In fact, the\r\nrespondents – State have also requested two months time\r\nto complete the proceedings. The said Affidavit is sufficient\r\nto establish that there has not been compliance of the\r\nmandatory requirements contained in Sections 16 to 18 r/w\r\nRules 21 to 27 referred to supra and consequently, the\r\nimpugned final notification / declaration without complying\r\nwith the said mandatory requirements is clearly illegal and\r\ninvalid and not sustainable in law.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 15.6 In this context, it was contended that on behalf\r\nof the respondents – State that if an opportunity was given,\r\nthe respondents would comply with the said lacunae as <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">admitted in paragraph-7 of the Affidavit referred to supra\r\nand complete the proceedings. This contention cannot be\r\naccepted, since for the purpose of enabling the\r\nrespondents – State to comply with the Sections 16 to 18\r\nr/w Rules 21 to 27 afresh, it would be necessary and\r\nessential to set aside the impugned final notification /\r\ndeclaration dated 14.07.2021, which was gazetted on\r\n26.07.2021; that would be impermissible in law, since the\r\nperiod of one year prescribed in Section 19(1) of the said\r\nAct of 2013 to issue the final notification / declaration from\r\nthe date of issuance of the preliminary notification dated\r\n05.06.2020 had already stood expired on 27.08.2021 /\r\n01.09.2021 when the Affidavits were filed. In other words,\r\neven assuming that the final notification had been set\r\naside, liberty to issue a fresh final notification after\r\ncomplying with Sections 16 to 18 r/w Rules 21 to 27 was\r\nnot permissible in law, since this Court does not have\r\njurisdiction or authority of law to extend the period of\r\nlimitation of one year to issue the final notification, which\r\nexpired on 05.06.2020 itself as held by the Constitution\r\nBench of the Apex Court in the case of Padma Sundara </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rao vs. State of T.N. & Others – (2002) 3 SCC 533.\r\nUnder these circumstances, in view of the undisputed fact\r\nthat the mandatory requirements of Sections 16 to 18 of the\r\nsaid Act of 2013 r/w Rules 21 to 27 of the said Rules of\r\n2015 (Karnataka) had not been complied with by the\r\nrespondents prior to issuance of the final notification /\r\ndeclaration dated 14.07.2021 as admitted by the\r\nrespondents – State itself, I am of the considered opinion\r\nthat even the impugned final notification is illegal and\r\ninvalid and the same deserves to be quashed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Point No.3 is also answered by holding and\r\ndeclaring that the impugned final declaration / notification\r\ndated 14.07.2021 gazetted on 26.07.2021 is also illegal\r\nand invalid and that the same deserves to be quashed.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Re-Point No.4:-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16.2 In view of the aforesaid facts and\r\ncircumstances, Point No.4 is also answered in favour of\r\nthe petitioners by holding that the amendment to Rule 34 of\r\nthe said Rules of 2015 (Karnataka) is not applicable to the\r\nsubject acquisition proceedings or the impugned\r\nnotifications.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. Insofar the judgments relied upon by the\r\nrespondents – State, including the judgments in relation to\r\nthe contention with regard to the amendment to Rule 34 of\r\nthe said Rules of 2015 (Karnataka) being retrospective is\r\nconcerned, having regard to the special / peculiar facts and\r\ncircumstances obtaining in the instant case, which are\r\ndifferent and distinguishable from the facts obtaining in the\r\nsaid judgments, the same are not applicable to the facts of\r\nthe case on hand and no reliance can be placed upon the\r\nsame by the respondents in support of their contention. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The petitions are hereby allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2cdfc015a6d230968c3ec922fcbd33ee.JPG', '135bc65b59fc492c32ebfdf824a1d7f6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-03', 1, '', '', '2022-10-31 12:28:50', '2022-11-03 06:36:14');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2284, 'ls2xoQe158EfjdSBGKEL8Tj7P', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for specific performance. Merely because the agreement does not stipulate any time, the same cannot be expected remain unperformed for all the time to come. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ashok Tukaram and others Vs Shivappagouda and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>RSA 7332 of 2011 decided on 20 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.G.S. Kamal.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. Brief facts of the case are that the plaintiffs who are represented by their mother and natural guardian Smt.Danabai filed the above suit contending that the defendant is the owner of the land bearing Survey No.158 of Kudari Salawadagi village. That the defendant offered to sell the land to one Subhash Rathod and to the father of plaintiffs-Tukaram. That the said Subhash Rathod agreed to purchase the eastern portion of the said land measuring 11 acres 3 guntas of land while the father of the plaintiffs agreed to purchase the western side of the said land measuring 13 acres of land. That on 20.07.1985 defendant executed an agreement to sell in favour of plaintiffs agreeing to sell the suit land being the western portion measuring 13 acres out of Survey No.158 for a total sale consideration of Rs.50,500/-. That the plaintiffs paid a sum of Rs.40,000/- towards advance sale consideration at the time of entering into the agreement. The defendant had delivered the physical possession of the suit land to the father of the plaintiffs and ever since then the plaintiffs have been in possession of the suit land till the date of filing of the suit. That it was agreed that the defendant would execute and register the deed of sale in terms of the aforesaid agreement dated 20.07.1985 after clearing all encumbrances on the suit land. Since the defendant has not cleared the encumbrances, the plaintiffs requested the defendant to receive the balance amount and execute the deed of sale but the defendant went on postponing the same. The plaintiffs caused issue of legal notice dated 04.05.1994 to the defendant for which the defendant issued a false evasive reply. That the plaintiffs were ready and willing to perform their part of contract and they were ready to pay balance amount of Rs.10,500/- and obtain registered deed of sale. Alternatively, the plaintiffs also prayed to refund of earnest money with damages of Rs.10,500/- with future interest at 12% per annum from the date of the suit till realization.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. In reply to the suit summons, the defendant appeared through their counsel and filed written statement denying the case of the plaintiffs. The defendant contended that there was no agreement of sale on 20.07.1985 and also denied the receipt of Rs.40,000/- towards earnest money as claimed by the plaintiffs. It is contended that the suit land is in possession of the defendant till date and all the revenue records standing in the name of the defendant. That the plaintiffs have filed the suit based on a concocted document. That there are encumbrances on the suit land and the plaintiffs are not entitled for any relief. Hence, sought for dismissal of the suit.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. This Court by order dated 04.12.2015, admitted the appeal for consideration of the following substantial questions of law;<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> (a) Whether the Courts below have kept in view, while deciding the matters, the provisions of Sections 10, 16 and 20 of the Specific Relief Act?<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(b) Whether the impugned judgment and decree is perverse?<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. Thus merely because the agreement did not stipulate any time, the same cannot be expected remain unperformed for all the time to come. The duty of the plaintiffs to have performed their part of contract within a reasonable time is not exempted. Though it is contended that substantial part of the sale consideration is paid requiring payment of a small balance of sale consideration, that itself cannot be a ground to overlook inordinate delay in plaintiffs initiating the action. The finding of the First Appellate Court in this regard do not warrants any interference.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. As regards, the finding of the First Appellate Court on points Nos.3 and 4, though the agreement refers to the possession having been delivered, except the agreement no other material is produced by the plaintiffs. As rightly taken note of by the First Appellate Court the tax paid receipt for only one year is produced. Even PW.1 in her crossexamination stated that except for one year, for all the years tax has been paid by the defendant. Besides an application for mutation of entries was purportedly made by the plaintiffs only in the year 1994 just about 3 months prior to the suit, which was objected by the defendant and name of plaintiffs were not entered into record of rights. The said finding of the First Appellate Court is based on the evidence of the parties.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. The relief of specific performance is discretionary relief. The plaintiffs are not entitled for the relief of specific performance as a matter of right merely because there is an agreement and that there is element of part performance unless the plaintiffs plead prove and establish their readiness and willingness in obtaining the performance of the same. In the instant case, these factors are neither pleaded nor proved and established. The plaintiffs are required to be diligent on their rights. That apart, grant of equitable relief in the facts situation of the case that to after inordinate delay of almost 10 years would give undue advantage to the plaintiffs and would cause hardship to the defendant. In that view of the matter the reasoning and conclusion arrived at by the First Appellate Court in the considered opinion of this Court is just and proper and no infirmity or illegality can be attributed to the same. The substantial questions of law are answered accordingly.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(a) The appeal in RSA No.7332/2011 is dismissed.</b><o:p></o:p></p>', '37836e663aae2d6e15c72e6021fa3638.JPG', 'df0236fe75193cbe9f32c28db65f7ec7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-17', 1, '', '', '2022-10-12 13:38:54', '2022-10-17 10:48:27'),
(2285, 'uFQX1cP0kouUytzJDxeG92Oi3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Issuance of fifteen days notice for moving no confidence motion under the Karnataka Panchayat Raj Act and the Rules is mandatory. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Meenakshi T. Babu and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 202337 of 2022 decided on 23 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.T. Narendra Prasad.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In this writ petition the petitioner called in question the notice issued by the Assistant Commissioner under Rule 3(2) of the Karnataka Panchayatraj (Motion of No Confidence against Adhyaksha and Upadhyaksha of Grama Panchayat) Rules, 1994 (for short, \'1994 Rules\'), fixing the date for moving \'No-confidence Motion\' against the petitioner No. 1<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. The brief facts of the case are that petitioner No.1 is the Adhyaksha of the Linganakhana Doddi Grama Panchayat and the second petitioner is the member of the said Grama Panchayat. There are 21 members representing the said Grama Panchayat. Out of 21 members, 19 members have given representation to the Assistant Commissioner under Rule 3(1) of the 1994 Rules with an intention to move \'No-confidence Motion\' against petitioner No.1 as per Annexure-B dated 07.09.2022. Pursuant to the said representation submitted by respondent Nos. 6 to 23, the Assistant Commissioner has issued a notice as per Annexure-C dated 09.09.2022, fixing the date of the meeting as 27.09.2022 for moving \'No-confidence Motion\' against the Adhyaksha, i.e., the petitioner No.1. Being aggrieved by the same, petitioners are before this Court.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. It is not in dispute that the first petitioner is the Adhyaksha of the Linganakhana Doddi Grama Panchayat. There are 21 members representing the said Grama Panchayat. Out of 21 members, 19 members have given representation to the Assistant Commissioner as per Annexure-B dated 07.09.2022 under Rule 3(1) of the 1994 Rules with an intention to move \'No-confidence Motion\' against the first petitioner as per Section 49 of the Karnataka Panchayatraj Act, 1993 (for short, \'1993 Act\'). Pursuant to that, the Assistant Commissioner has issued a notice under Rule 3(2) of the 1994 Rules on 09.09.2022, fixing the date of meeting as 27.09.2022.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. As per the aforesaid Rule, it is very clear that the Assistant Commissioner has to give a notice under Form No.II to each members of not less than fifteen clear days. Even A Full Bench of this Court in C.PUTTASWAY (supra) has held that Section 47(3) requires the Assistant Commissioner to give the members notice of a meeting for consideration of a motion of No-Confidence against the Adhyaksha of not less than fifteen clear days of such meeting which was mandatory. In the case on hand, even though notice has been issued on 09.09.2022, fixing the date of meeting on 27.09.2022 as per Annexure-C, the impugned notice has been served on the petitioner on 15.09.2022, there is no clear fifteen days notice given to the first petitioner. The impugned notice is contrary to Section 49 of the 1993 Act and Rule 3(2) of the 1994 Rules. Hence, the impugned notice Annexure-C is unsustainable and it requires to be quashed.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. Accordingly, writ petition is allowed. </b></p>', '5fb39b31f721b29366e25f1858b73860.JPG', '744bd69ddc5b0cd876acf71f3cc0f4dc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-17', 1, '', '', '2022-10-12 13:41:05', '2022-10-17 03:22:11'),
(2286, 'RK1tWgpbzRJ8W20fMI68zH1RQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Corporation cannot demand tax in respect of an industrial plot unless the industrial area is included within the Corporation limits. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Agril. Engineers Vs The Hubli Dharwad Municipal Corporation and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 103719 of 2014 decided on 13 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ashok S. Kinagi.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. Brief facts leading to the filing of this writ petition are as under:<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Petitioner-firm applied for allotment of industrial site formed in Tarihal Industrial Area situated in Sy.No.87/2B of Tarihal village, Hubballi Taluk, Dharwad District. Respondent No.3 executed lease-cum-sale agreement dated 07.10.1988 and thereafter, respondent No.3 executed registered sale deed dated 28.08.2008 in respect of plot No.52/A in Sy.No.87/2B. It is submitted that the said area has not been handed over to respondent No.1 for the purpose of maintenance and collection of tax by respondent No.3 and the said area has not been declared as a municipal area, so as to apply the provisions of the Karnataka Municipal Corporation Act, 1976. Respondent No.2 issued impugned order vide Annexure-E. It is contended that impugned order issued by respondent No.2 is without jurisdiction. Hence, it is prayed to allow the writ petition.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. It is not in dispute that respondent No.3 allotted plot No.52/A situated in Sy.No.87/2B of Tarihal village, Hubballi Taluk, Dharwad District. Respondent No.3 executed lease-cum-sale agreement in favour of the petitioner on 07.10.1988 and subsequently respondent No.3 executed registered sale deed dated 28.08.2008. Respondent No.2 relying upon Annexure-R1 has issued Annexure-E taking into consideration that Sy.No.87/2B was declared as municipal area. Though respondent No.2 produced notification dated 12.10.1995 declaring the said area as municipal area, however, from perusal of Annexure-R1, land bearing Sy.No.87/2B has not been included in the notification and it is clear that Sy.No.87/2B has not been included within the corporation limit and it is still within the limit of respondent No.3. Respondent No.2 without examining Annexure-R1 has issued warrant notice vide Annexure-E. When Sy.No.87/2B does not fall within the corporation limit, respondent No.2 has no jurisdiction to issue Annexure-E. Hence, on this ground alone itself, the impugned warrant notice is liable to be set aside. Learned counsel for the respondents submits that petitioner has got alternative remedy under Rule 19 of the Karnataka Municipal Corporation Taxation Rules.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>As observed above, the said property does not fall within the corporation. Hence, the said rules are not applicable to the case in hand. Hence, the contention of the respondents that petitioner has got alternative remedy cannot be accepted.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The writ petition is allowed.</b><o:p></o:p></p>', '446f166bbc04b19a9971bd2f99c7f0d1.JPG', '90fd10add4ac20fc85266f6e207f28d5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-14', 1, '', '', '2022-10-12 13:43:38', '2022-10-14 03:21:56'),
(2287, 'Kjni3zORSBUNhtUMCggBFFKuI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Passing of second award for lands acquired under the National Highways Act, 1956 is without jurisdiction which can be quashed by a Writ despite the availability of alternate remedy under the Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Valerial Sequeria and others Vs Special Land Acquisition Officer and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 10525 of 2021 decided on 26 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice E.S. Indiresh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. In writ petition No.10525 of 2021, it is the contention\r\nof the petitioners that the petitioners are the owners in\r\npossession of the subject land and the respondent-authorities\r\nhave issued Preliminary and Final notifications dated 09th\r\nJanuary, 2020 and 10th July, 2020 under Section 3-A and 3-D of\r\nNational Highways Act, 1956 respectively (for short hereinafter\r\nreferred to as the “the Act”) and as such, acquired the land\r\nbelonging to the petitioners for the purpose of widening of fourlane road in Dakshina Kannada District. The Union Govt has\r\nissued Notification dated 27th June, 2014 under Section 3(a) of\r\nthe Act authorising the competent authority to perform the\r\nfunctions with regard to the National Highway No.13 between\r\nShivamogga and Mangaluru (Annexure-C). Pursuant to the\r\nsame, the competent authority-respondent No.1, has passed\r\nGeneral Award dated 17th December, 2020 under Section 3-G of\r\nthe Act read with Section 29 of the Right to Fair. Compensation\r\nand Transparency in Land Acquisition, Rehabilitation and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Resettlement Act, 2013 (for short hereinafter referred to as\r\n“2013 Act”) , awarding Rs.19,49,25,561/- in respect of Puttige\r\nvillage Annexure-D. The case of the petitioners is that the first\r\nrespondent, without giving effect to the first award, has passed\r\nthe second award dated 22nd January, 2021 and being aggrieved\r\nby the same, the petitioners have alleged that the officers of the\r\nNational Highways have influenced respondent No.1 to pass\r\nsecond award by reducing the compensation from\r\nRs.19,49,25,561/- to Rs.7,39,16,505/- and being aggrieved by\r\nthe same, the present writ petition is filed. The respondent\r\nentered appearance and filed detailed statement of objection\r\ndenying the averments made in the writ petition. It is the case\r\nof the respondent that the petitioners having alternative and\r\nefficacious remedy to challenge the impugned award passed by\r\nthe respondent No.1 before the Arbitrator under Section 3-G(5)\r\nof the Act and hence sought for dismissal of the petition on the\r\nground of alternative remedy. It is the specific defence of the\r\nrespondent-authorities that there are two awards as alleged by\r\nthe petitioners is not correct and the award dated 17th\r\nDecember, 2020 is only a draft award and the General Award </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was passed under Section 3-G of the Act on 22nd January, 2021\r\nand accordingly, sought for dismissal of the writ petition.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. In the light of the submission made by the learned\r\ncounsel appearing for the parties, questions that arise for\r\nconsideration in these writ petitions are as follows:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> (1) Whether the respondent-authorities are\r\njustified in issuing award dated 22.01.2021\r\n(Annexure-A)?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> (2) Whether the writ petitions deserve to be\r\ndismissed on the ground of alternative and\r\nefficacious remedy available under National\r\nHighways Act? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">12. That apart, the letter dated 22nd January, 2021\r\n(Annexure-S) issued by the first respondent to the Project\r\nDirector, National Highways Authority of India, whereby the first\r\nrespondent has revised the award under Section 3-G of the Act\r\nin respect of the land situate in Puttige village of Mudabidri taluk\r\nwhich would clearly substantiate the arguments advanced by the\r\nlearned Senior Counsel appearing for the petitioners that the\r\naward dated 22nd January, 2021 (Annexure-A) is a second award\r\nmade by the respondent-authorities in the absence of specific\r\nprovision under the National Highways Act, providing for making\r\nsecond award with respect to the land acquired pursuant to\r\nNotifications under 3-A and 3-D of the Act. It is also pertinent to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">take note of the similar contents in Annexure-R dated 21st\r\nJanuary, 2021 whereby the Regional Officer of NHAI addressed\r\nletter to Project Director of NHAI, referring to the award dated\r\n22nd January, 2021 as Review 3-G Award and in that view of the\r\nmatter, I am of the view that the writ petitions deserve to be\r\nallowed by setting aside the award dated 22nd January, 2021\r\npassed by the respondent-authority as one without jurisdiction\r\nand contrary to law.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. Though the learned senior counsel Sri Udaya Holla,\r\nargued on the premise that the petitioners have to exhaust the\r\nalternative remedy provided under the Act, and judgment of the\r\nHon\'ble Apex Court in the case of SAYEDABAD TEA COMPANY\r\nLIMITED (supra), the said submission cannot be accepted for the\r\nreason the impugned award dated 22nd January, 2021 said to\r\nhave been issued by the respondent-authorities under section 3-\r\nG of the Act upon issuing the earlier award dated 17\r\nth December,\r\n2020 (Annexure-D), which creates rights in favour of the\r\npetitioners claiming compensation under the Act, and in that\r\nview of the matter, reviewing the very same award by way of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">impugned award dated 22nd January, 2021 (Annexure-A) does\r\nnot arise at all and the same is without jurisdiction and\r\ntherefore, this Court is having jurisdiction to exercise powers\r\nunder Article 226 of the Constitution of India to set right the\r\njurisdictional error on the part of the respondent-authority while\r\nissuing second award. Therefore, I am of the view that the\r\nimpugned award dated 22nd January, 2021 (Annexure-A) is liable\r\nto be quashed in these writ petitions. If the instrumentality of\r\nthe State, acted in contravention of the statutory provisions\r\nwhich affect the rights of the parties concerned, such illegal and\r\narbitrary action, on the part of authorities, has to be nipped in\r\nthe bud and cannot be perpetuated since the very action of such\r\nauthorities is not only an irregularity in nature but also amounts\r\nto illegality which cannot be accepted under Article 14 of the\r\nConstitution of India. In that view of the matter, even if the\r\nalternative remedy is available for the petitioners to approach\r\nthe competent authority under the provisions of the Act,\r\nhowever, the same cannot be said to be an efficacious remedy to\r\nnullify such erroneous decision on the part of the respondentauthorities.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. Though the learned Senior Counsel appearing for the\r\nrespondents urged about the existence of alternative remedy, I\r\ndo not find acceptable ground to disallow these petitions as it is\r\ntrite law that this Court is having jurisdiction to entertain writ\r\npetition, if the impugned orders are passed in derogation of\r\nprinciples of natural justice and the action taken by the\r\nrespondent-Authority is contrary to the law declared by the\r\nHon\'ble Apex Court. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. Following the aforementioned law declared by this\r\nCourt and the Hon\'ble Supreme Court referred to above, I am of\r\nthe view that the impugned awards dated 22nd January, 2021\r\n(Annexure-A) impugned in Writ Petitions No.10525, 13547 and\r\n8458 of 2021 and Order dated 27th January, 2021 (Annexure-A)\r\npassed in Writ Petition No.10780 of 2021 are liable to be\r\nquashed, accordingly quashed. In the result, writ petitions are\r\nallowed. </b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1b8fe352792d8d6f71f3235681ac2413.JPG', '5f03991a2d504cf58db75e9c70b744cd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-17', 1, '', '', '2022-10-12 13:56:59', '2022-10-17 08:54:46'),
(2288, 'd9UvCQ78agpSgKW0UWzT2XTfE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A proprietary concern is not required to be arrayed as a separate party in a proceeding under Section 138 of the Negotiable Instruments Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>H.N. Nagaraj Vs Suresh Lal Hira Lal.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 8257 of 2019 decided on 21 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">6. In all the above matters, a private complaint under\r\nSection 200 Cr.P.C., read with Section 138 and 141\r\nof Negotiable Instruments Act, 1881 (for short,\r\n‘N.I.Act’) came to be filed against the petitioner </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">herein on the allegation that the petitioner had\r\nborrowed certain money from the complainant, which\r\nwas not repaid and the cheque which had been\r\nissued thereto had got dishonoured with a remark\r\n‘account blocked’. It is aggrieved by the same that\r\nthe petitioner is before this Court.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. The points that would arise for determination by this\r\nCourt are:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1) Whether a proprietary concern is required to\r\nbe arrayed as a separate party in a proceeding\r\nunder Section 138 of N.I.Act?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2) Whether the sworn statement of the Special\r\nPower of Attorney holder could be recorded in\r\na proceeding under Section 138 of N.I.Act?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3) What order? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Answer to Point No.1: Whether a proprietary\r\nconcern is required to be arrayed as a separate\r\nparty in a proceeding under Section 138 of N.I.Act?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11.5. Insofar as a proprietary concern is concerned,\r\nas the name indicates there can only be one\r\nproprietor and it is the said proprietor who\r\nwould be incharge of the affairs of the\r\nproprietary concern. Thus, it is not required for\r\nany pleading to be made as regards who is the\r\nperson in charge of a proprietary concern when\r\nthere is only one proprietor. I am unable to\r\nagree with the decision of the Hon’ble Panjab\r\nand Haryana High Court in the case of SARDAR\r\nBUPENDER SINGH1 where the definition of a\r\ncompany has been extended to a proprietary <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">concern to contend that the proprietary concern\r\nhas a separate and independent existence. In\r\nmy considered opinion a proprietary concern\r\ncannot have any independent or separate\r\nexistence dehors the proprietor thereof.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11.6. In view thereof, I answer point no.1 by holding\r\nthat in a proceeding under Section 138 of\r\nN.I.Act, the arraying of a proprietor as an\r\naccused or a proprietary concern represented\r\nby the proprietor would be sufficient compliance\r\nwith the requirements under Section 138 of\r\nN.I.Act, the proprietor and the proprietary\r\nconcern is not required to be separately\r\narrayed as a party accused.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Answer to Point No.2: Whether the sworn\r\nstatement of the Special Power of Attorney holder\r\ncould be recorded in a proceeding under Section\r\n138 of N.I.Act?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12.5. In terms of para 33.3 of A.C.Narayanan’s2\r\ncase, what is required is for a specific assertion\r\nto be made that the power of attorney is aware\r\nof the transactions. In the present case, such\r\nan assertion has been made. Be that as it may,\r\nduring the course of cross-examination if it is  </b></span><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">established that the power of attorney holder\r\nhas no knowledge regarding the transaction,\r\nthen the complaint itself would fail and it is the\r\nrisk which has been taken by the complainant by\r\nappointing power of attorney holder.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12.6. In view of the above, I answer Point No.2 by\r\nholding that a power of attorney could file a\r\ncomplaint, could depose to an affidavit as also\r\nrecord his sworn statement in a proceedings under\r\nSection 138 of N.I.Act.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>13. Answer to Point No.3: What order?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">13.1. The two contentions which have been addressed\r\nby Sri.Venkat Subbarao, learned counsel for the\r\npetitioner being dealt with hereinabove, those two\r\ngrounds not being sufficient for exercise of powers\r\nunder Section 482 Cr.P.C. I am of the considered\r\nopinion that the petitions not making any grounds </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">are required to be dismissed and as such Criminal\r\nPetitions are dismissed.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7ed32cf702e856973277c638506c05cd.JPG', '5278c022ea9d191e0ae6aae42d0612b0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-13', 1, '', '', '2022-10-12 14:15:39', '2022-10-13 03:07:38'),
(2289, 'EKJxQLXfYocU7PWovWOPzFsQN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Merely because a person is a director of a company, it is not necessary that he is aware about the day today functioning of the company to make him liable for criminal prosecution under the Drugs  & Cosmetics Act,  1940. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Lalankumar Singh and others Vs State of Maharashtra.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1757 of 2022 decided on 11 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B.R Gavai and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. The facts, in brief, giving rise to the present appeal are as under: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3.1 The Appellants are the Directors of M/s Cachet Pharmaceuticals Private Ltd. (hereinafter referred to as “CPPL”). CPPL was granted permission to manufacture ‘Hemfer Syrup’ which falls under Schedule C & C(1) to the Drugs & Cosmetics Rules, 1945 (hereinafter referred to as “the said Rules”).</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3.8 The learned CJM, Beed issued Summons to all the accused, including the Appellants herein vide Order dated 30th March 2009. The Appellants filed a Criminal Revision Petition against the summoning order before the learned Sessions Judge, Beed on the ground that there are no specific averments in terms of Section 34 of the said Act as to the role played by the Directors and thus sought for the Summoning Order to be quashed. However, the learned Sessions Judge, Beed rejected the said Criminal Revision Petition noting that there is a specific averment in the complaint that the appellants are concerned with the manufacture, distribution and sale of ‘Hemfer Drug’. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14. It could thus be seen that this Court had held that simply because a person is a director of the company, it does not necessarily mean that he fulfils the twin requirements of Section 34(1) of the said Act so as to make him liable. It has been held that a person cannot be made liable unless, at the material time, he was in­charge of and was also responsible to the company for the conduct of its business. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">15. In the case of S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla and another , this Court was considering the question as to whether it was sufficient to make the person liable for being a director of a company under Section 141 of the Negotiable Instruments Act, 1881. This Court considered the definition of the word “director” as defined in Section 2(13) of the Companies Act, 1956. </span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23. It can thus be seen that there are no specific averments insofar as the present appellants are concerned. It is further to be noted that the present appellants are neither the managing director nor the whole­time directors of the accused company. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>24. It is further to be noted that, in accordance with the provisions of Rule 76 of the said Rules read with Form 28, the Accused Nos. 9 and 10 have specifically been approved by the licensing authority in Form 28. Accused No.9 was approved as a person under whose active direction and personal supervision the manufacture would be conducted as required under sub­rule (1) of Rule 76 of the said Rules. Similarly, Accused No.10, who was approved as a head of the testing unit, was to be in­charge for carrying out the test of the strength, quality and purity of the substances as may be required under the provisions of Part X of the said Rules. We are therefore of the considered view that the complaint is totally lacking the requirement of Section 34 of the said Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>25. The impugned orders are liable to be quashed and set aside on another ground also. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>30. In the present case, leaving aside there being no reasons in support of the order of the issuance of process, as a matter of fact, it is clear from the order of the learned Single Judge of the High Court, that there was no such order passed at all. The learned Single Judge of the High Court, based on the record, has presumed that there was an order of issuance of process. We find that such an approach is unsustainable in law. The appeal therefore deserves to be allowed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>31. In the result, the appeal is allowed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '152c56009e964e17f7130044719c56c3.jpeg', 'd1988dd41b8e9a16941d263ac4f8e503.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-13', 1, '', '', '2022-10-12 14:30:24', '2022-10-13 06:31:14');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2290, 'zeyPKsSq9q5iIT4JBD6HcwseN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Acquisition for a single company can be made and notifications under Sections 1(3), 3(1) and 28(1) can be issued simultaneously under the Karnataka Industrial Areas Development Act, 1966. Supreme Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. M.S.P.L. Limited Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4678 of 2021 decided on 11 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Gupta and Justice Vikram Nath.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The State of Karnataka (Civil Appeal No. 4745­4747 of 2021), the Karnataka Industrial Area Development Board (Civil Appeal No. 4699­4719 of 2021), M/S MSPL Limited (Civil Appeal No. 4678 of 2021) and AARESS Iron & Steel Limited (Civil Appeal No. 4679­4698 of 2021) have jointly assailed the correctness of the judgement and order dated 22.03.2012 passed by the Division Bench of the Karnataka High Court, Circuit Bench at Dharwad in a group of writ appeals filed by the land owners. By the said judgment, the Division Bench allowed the writ appeals, set aside the order of the learned Single Judge dated 17.03.2009 and the writ petitions were allowed. The notifications under Sections 3(1), 1(3) and 28(1) of the Karnataka Industrial Areas Development Act, 19661 were quashed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. Two State Acts legislated in the State of Karnataka are relevant for determination of issues in the present case. Karnataka Industrial Areas Development Act, 1966 and the Karnataka Industries (Facilitation) Act, 2002 5. The acquisition is for two companies viz. M/s MSPL Ltd.3 and M/s AARESS Iron and Steel Ltd.4 , for setting up an iron ore palletisation plant and an integrated steel plant respectively.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. Based on the above conclusion, the Division Bench allowed the bunch of appeals and quashed the notifications issued under Sections 1(3), 3(1) and 28(1) of the 1966 Act. Aggrieved by the same, the appeals have been preferred by not only the companies for whose benefits the land was acquired but also by the KIADB and the State of Karnataka. At the cost of repetition, it is pointed out that Civil Appeal @ SLP (C) No. 23351 of 2012 has been preferred by a land owner aggrieved by judgment dated 14.12.2011, whereby the writ appeal of the said petitioner was dismissed, confirming the dismissal of the writ petition by the learned Single Judge with respect to a challenge relating to similar acquisition for a company BMM Ispat Ltd. on similar grounds.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>24. Based upon the arguments advanced by the learned counsels, the following issues arise in these appeals for our consideration:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">(I) Whether in the absence of environmental clearance, the acquisition in question could have taken place?</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">(II) Whether the acquisition was vitiated in view of the undue haste and non­application of mind by the competent authorities?</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">(III) Whether the procedure prescribed under the 1966 Act was duly followed?</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">(IV) Whether the acquisition for a single company could be said to be for public purpose and could be made under the 1966 Act? </b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">(V) Whether acquisition could be made for a non­applicant AISL under the 1966 Act without its application being routed through SHLCC.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">(VI) Whether the comparison with the Maharashtra Industrial Development Act, 1962, placing reliance on the judgment of this Court in the case of Shri Ramtanu Coop.Housing Society Ltd. Vs. State of Maharashtra, reported in (197) 3 SCC 323 in the impugned judgment is correct?</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">(VII) Whether the conclusions arrived at in the impugned judgment are vitiated on account of inclusion of value judgments of policy views by the High Court?</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">(VIII) Whether the entire acquisition could be quashed upon a petition by a fraction of landowners holding a fraction of acquired land which is only 10 % or less of the total acquired land?</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">A. Environmental Clearance.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">25. On record environmental clearance has been given on 23.09.2016 by the Ministry of Environment and Forests, Government of India, copy of which has been filed along with I.A. No.118035 of 2017 in the appeal of MSPL. Prior to it, the Ministry itself vide paragraph­2 of the Notification dated 14.09.2006 provided that no Environment Clearance from MOEF was required for securing land. It may also be relevant to note here that KSPCB had given its clearance and no objection much earlier for setting up the plant vide communication dated 02.08.2008. Further, the Ecology and Environmental Department of Government of Karnataka had given clearance on 01.10.2010. Further, the Ministry of MOEF had issued an order dated 08.09.2014 providing that the plant may be continued to operate. Thereafter, the KSPCB issued an order dated 16.10.2014 requiring MSPL to apply for Terms of Reference by 07.12.2014 and to obtain environment clearance from MOEF within one year. The MSPL accordingly applied as per the Terms of Reference and was granted the environment clearance by MOEF vide communication dated 23.09.2016. In view of the above facts, as of date, no objection can be raised that there is no environmental clearance certificate from the Ministry of Environment and Forest as the same has already been issued on 23.09.2016.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">B. Non­application of mind and undue haste.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">33. Insofar as the notifications under Section 1(3), 3(1) and 28(1) of 1966 Act being issued on the same date, it may be noted that there is no embargo on the same. The statutes do not prohibit the same.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>C. Procedure Prescribed under the 1966 Act duly followed:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">36. Pursuant to the notification under Section 28(1) of the 1966 Act, further steps were taken and after inviting objections and disposing of the same, final declaration was made, compensation was determined and thereafter possession taken. It would be also relevant to state here that from the material on record, it is apparent that the land was acquired in the name of the State, thereafter transferred to the KIADB, which proceeded to allot the same to MSPL and AISL respectively and, accordingly, lease deeds were executed. The entire process as provided under the Act has been strictly followed. The Division Bench in the impugned judgment apparently was swayed by its own personal views based on assumptions and having no material backing which led to the quashing of the notifications</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">D. Acquisition for a Single Company</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">38. Under the above regulations, the Board is empowered to allot any plot or area to any individual or company for establishment of an industry in consultation with the State Government. This provision also contemplates acquiring land for the purpose of allotment to a single company to set up an industry. In the present case, the allotment by the Board is duly approved by the State Government.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">40. Therefore, the view expressed by the Division Bench that no acquisition could be made for a single company cannot be sustained. </b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">E­ Acquisition for a non­applicant (AISL)</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>41. It is not disputed that AISL (non­applicant) is fully owned subsidiary of MSPL (applicant). In effect, AISL is a new Company promoted by the same promoters. The State Government examined the request of MSPL and also AISL for modification of its Government Order dated 22.12.2005. It examined the bifurcation under various heads. State Government issued Government Order dated 22.03.2006 splitting the infrastructures required with further stipulation that all other terms and conditions mentioned in the Government Order dated 22.12.2005 would apply as it is to both the Companies. The only change sought by MSPL was the integrated steel plant be set up by AISL which was its own subsidiary. These are commercial matters and the State after examining the proposal for change in its wisdom accepted the same. There was no change in the project, as such, regarding the finance, employment and other infrastructures. The objection raised by Mr. Naphade to the aforesaid effect does not merit consideration.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">F. Relevance of Shri Ramtanu judgment:</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">43. Thus, it is to be noticed that the purpose in 1962 Act was for establishment of industrial areas whereas in the other statute i.e 1966 Act, it was for promotion of the establishment and orderly development of industries. Thus, the reliance by the Division Bench in the impugned judgment on the case of Shri Ramtanu (supra) is misplaced.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">G. Value judgments of policy views.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">45. A perusal of the above makes it amply clear that the Division Bench introduced several value judgments and policy views in order to interpret the provisions of the 1966 Act and the 2002 Act. It is only as a measure of caution that the said aspect is being taken note of. Such value judgments and policy views are beyond the domain of the Courts. The Courts should refrain itself from expressing value judgments and policy views in order to interpret statutes. Statutes are to be read in their plain language and not otherwise.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">H. Challenge to acquisition by a minority (10%) of land owners.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">46. It is admitted position that the challenge to the acquisition of more than a thousand acres was made by a small fraction of land owners having land less than 10% of the total acquisition. Compensation for rest of the 90% land acquired had been accepted by their respective land owners. The Division Bench has quashed the entire acquisition of more than a thousand acres at the instance of such a small fraction. This aspect has been dealt with by this Court in the case of Amarjit Singh Vs. State of Punjab reported in (2010) 10 SCC 43 and Om Prakash Vs. State of U.P. reported in (1998) 6 SCC 1. The learned Single Judge had placed reliance on the judgment of Om Prakash (supra). It is also worthwhile to mention that out of approx 110 acres of land acquires for MSPL, only one land owner possessing only 4.34 acres of land, had filed the writ appeal before the Division Bench. Quashing the entire acquisition at the instance of one land owner having 4.34 acres of land out of total acquisition for MSPL of 110 acres, would be against the public policy and public interest. The MSPL alone provides employment to 292 persons with a substantial investment of Rs.200 crores. The employment to approximately 300 persons by MSPL is also alleged to be double of the number of employees as projected in the proposal. Further, in the case of AISL acquisition of 914 acres is challenged by a fraction of less than 10% land owners. The estimated project of AISL is approx Rs.2092 crores and would employment to at least one thousand persons. </b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">47. In view of the above analysis, we are of the view that the Division Bench committed an error in quashing the acquisition proceedings. Accordingly, the appeals filed by MSPL, AISL, KIADB and State of Karnataka are allowed. </b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">49. Insofar as the claim of Syed Ahmed is concerned, which is in respect of similar acquisition for M/S BMM Ispat Ltd. on similar grounds based upon the judgment of the Division Bench dated 22.03.2012 impugned in the other appeals, deserves to be dismissed as we have already set aside the said judgment. Relevant to state here that Syed Ahmed was owner of 14.35 acres out of total land measuring 705.99 acres acquired for M/S BMM Ispat Ltd., which is less than 2%. The appeal of Syed Ahmed is accordingly dismissed.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">50. There shall be no order as to costs.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e77b87766b049bb93f0827fb55fb3c87.jpeg', '8f9d397f0e4c8ebaa68b9b16faa39546.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-13', 1, '', '', '2022-10-12 14:52:45', '2022-10-13 12:29:29'),
(2291, 'V3sBK9sDIsuCq3QQ9d3oXebyC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Interpretation of statutes. ‘Removal of difficulty clause’ cannot be used to change the scheme and essential provisions of a legislation. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>State of West Bengal Vs Anindya Sundar Das and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6706 of 2022 decided on 11 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dhananjaya Y Chandrachud and Justice Hima Kohli.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. By its judgment dated 13 September 2022, a Division Bench of the High\r\nCourt at Calcutta allowed a petition under Article 226 of the Constitution seeking a\r\nwrit of quo warranto against the Vice-Chancellor1 of Calcutta University. The High\r\nCourt held that the State government had no authority to appoint or re-appoint the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">VC under Section 8 of the Calcutta University Act 19792 or by taking recourse to\r\nthe residuary provisions of Section 60 of the Act. As a consequence, the order\r\nissued by the Special Secretary to the Government of West Bengal on 27 August\r\n2021 re-appointing the incumbent VC of Calcutta University was set aside. The\r\nHigh Court has held that the VC had no authority to hold that office on the basis of\r\nthe order of appointment. Both the State of West Bengal and Dr Sonali Chakravarti\r\nBanerjee, the VC whose appointment has been set aside, are in appeal.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2. By a notification dated 28 August 2017, the Chancellor of Calcutta University\r\nappointed Professor Dr Sonali Chakravarti Banerjee as the VC of Calcutta\r\nUniversity. The notification was in exercise of the powers conferred by Section\r\n8(1)(a) read with Section 8(2)(a) of the Act. The term of appointment was for a\r\nperiod of four years with effect from the date on which she joined office or until she\r\nattained the age of sixty-five or until further orders, whichever is the earliest.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>38. The Chancellor has been described in Section 7(1) as the head of the\r\nUniversity. The power of appointing a VC is vested by Section 8(1)(b) in the\r\nChancellor. That provision stipulates that “the VC shall be appointed by the\r\nChancellor”. Section 8(2)(b) empowers the Chancellor to allow a VC to continue,\r\nnotwithstanding the expiration of its term, for a period of not more than two years\r\nat a time in consultation with the Minister. Here again, the continuation is “subject\r\nto the satisfaction of the State government and on the basis of his past academic\r\nexcellence and administrative success” established during the term of office in the\r\ncapacity of VC. These words are in terms identical to those contained in Section\r\n8(2)(a). Section 8(5) entrusts to the Chancellor the power to appoint the VC as a\r\nresult of the temporary inability of the VC to perform the duties of the office or\r\npending the appointment of the VC when a vacancy has arisen in the office.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>39. The issue is whether the deletion of the expression “subject to the provisions\r\nof this section” in the amended provisions of Section 8(2)(a) would lead to the\r\ninference that the power of reappointment has been taken away from the\r\nChancellor and entrusted to the State government. The submission to that effect\r\nwhich has been urged on behalf of the appellants cannot be accepted.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>43. Moreover, in the present case, the State government itself made a reference\r\nto the Chancellor when the issue as regards the reappointment of the VC came up.\r\nEvidently as the State government stated before the High Court, the Chancellor\r\nwas in disagreement with the State government. Therefore, it is clear that the State\r\ngovernment was in agreement with the interpretation of the Act as laid out above.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>48. Section 60 contemplates a situation where inter alia any difficulty arises in\r\ngiving effect to the provisions of the Act “on account of any lacunae or omission” in\r\nits provisions or for any other reason whatsoever. In such cases, the State\r\ngovernment is empowered, as the occasion may require, to do anything which\r\nappears to it to be necessary for removing the difficulty notwithstanding anything\r\nto the contrary contained elsewhere in the Act or any other law. Where there is a\r\nspecific provision, as in the present case Section 8(2)(a), it was not open to the\r\nState government to conjure up a lacunae or omission and purportedly exercise\r\nthe power to remove difficulties.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>49. The State government chose the incorrect path under Section 60 by\r\nmisusing the “removal of difficulty clause” to usurp the power of the Chancellor to\r\nmake the appointment. A government cannot misuse the “removal of difficulty\r\nclause” to remove all obstacles in its path which arise due to statutory restrictions.\r\nAllowing such actions would be antithetical to the rule of law. Misusing the limited\r\npower granted to make minor adaptations and peripheral adjustments in a statute\r\nfor making its implementation effective, to side-step the provisions of the statute\r\naltogether would defeat the purpose of the legislation.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>50. Accordingly, the High Court in our view was justified in coming to the\r\nconclusion that “in the guise of removing the difficulties, the State cannot change\r\nthe scheme and essential provisions of the Act<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>55. In Gambhirdan K Gadhvi v State of Gujarat,\r\n17 the Sardar Patel University\r\nAct 1955, expressly vested the power of appointment of the Vice Chancellor in the\r\nState government (instead of the Chancellor). Despite the appointment being in\r\nterms of the statutory provisions of the Sardar Patel University Act 1955, the Court\r\nissued a writ of quo warranto setting aside the appointment of the Vice Chancellor <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by relying upon the UGC Regulations 2018</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>56. In view of the decision in Gambhirdan K Gadhvi,\r\n18 even if the provisions of\r\nthe Act allowed the appointment of the Vice Chancellor by the State government,\r\nit would be in violation of the UGC Regulations. The Regulations become part of\r\nthe statute framed by Parliament and will prevail.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n57. For the above reasons, we hold that the judgment of the High Court is correct\r\nin law and on fact and does not warrant interference in appeal. The State\r\ngovernment could not have issued the order re-appointing the VC. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>58. The appeals are dismissed. No order as to costs.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>59. Pending application(s), if any, stand disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8e869757bcdaa4e0e0f95612d6604b5d.jpeg', '61ac427a0bae87106d14696295d1637a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-13', 1, '', '', '2022-10-12 16:19:28', '2022-10-13 10:26:13'),
(2292, 'a3RhBoRqMz9jXNoXEoKaTRD9n', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When part payment of cheque amount is made before presentation, such payment must be endorsed on the cheque. Otherwise complaint under Section 138, NI Act is not maintainable. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Dashrathbhai Trikambhai Patel Vs Hitesh Mahendrabhai Patel and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1497 of 2022 decided on 11 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dhananjaya Y Chandrachud and Justice Hima Kohli.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This appeal arises from a judgment dated 12 January 2022 of the High Court\r\nof Gujarat. The High Court dismissed an appeal against the judgment of the\r\nAdditional Chief Judicial Magistrate dated 30 August 2016 by which the first\r\nrespondent was acquitted of the offence under Section 138 of the Negotiable\r\nInstruments Act 18811\r\n. At the core, the issue is whether the offence under Section\r\n138 of the Act would deem to be committed if the cheque that is dishonoured does\r\nnot represent the enforceable debt at the time of encashment.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. On 10 April 2014, the appellant issued a statutory notice under Section 138\r\nof the Act to the first respondent-accused. It was alleged that the first respondent\r\nborrowed a sum of rupees twenty lakhs from the appellant on 16 January 2012 and\r\nto discharge the liability, issued a cheque dated 17 March 2014 bearing cheque\r\nNo. 877828 for the said sum. It was further alleged that the cheque when presented\r\non 2 April 2014 was dishonoured due to insufficient funds</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. The primary contention of the first respondent is that the offence under\r\nSection 138 was not committed since the amount that was payable to the appellant,\r\nas on the date the cheque was presented for encashment, was less than the\r\namount that was represented in the cheque. The question before this Court is\r\nwhether Section 138 of the Act would still be attracted when the drawer of the\r\ncheque makes a part payment towards the debt or liability after the cheque is drawn\r\nbut before the cheque is encashed, for the dishonour of the cheque which\r\nrepresents the full sum.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. Section 138 creates a deeming offence. The provisos prescribe stipulations\r\nto safeguard the drawer of the cheque by providing them the opportunity of\r\nresponding to the notice and an opportunity to repay the cheque amount. The\r\nconditions stipulated in the provisos need to be fulfilled in addition to the ingredients\r\nin the main provision of Section 138. It has already been concluded above that the\r\noffence under Section 138 arises only when a cheque that represents a part or\r\nwhole of the legally enforceable debt at the time of encashment is returned by the\r\nbank unpaid. Since the cheque did not represent the legally enforceable debt at\r\nthe time of encashment, the offence under Section 138 is not made out.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n26. The appellant contends that the purpose of Section 138 of the Act would be\r\ndefeated if the dishonour of the cheque issued for security is not included within\r\nthe purview of Section 138 where the payment of a part of the cheque amount is\r\nmade. It was contended that it would lead to a possibility where the drawer of the\r\ncheque could evade prosecution under Section 138 by paying a small amount of\r\nthe debt while defaulting on the remaining payment. Section 56 stipulates that if\r\nthere is an endorsement on a negotiable instrument that a part of the sum\r\nmentioned in the cheque has been paid, then the instrument may be negotiated for\r\nthe balance.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. A Division Bench of the Kerala High Court has held in Joseph Sartho v.\r\nGopinathan12 that since the representation in the cheque was for a sum higher\r\nthan the amount that was due on the date that it was presented for encashment,\r\nthe drawer of the cheque cannot be convicted for the offence under Section 138 of\r\nthe Act. The High Court of Delhi addressed the same issue in Alliance\r\nInfrastructure Project Ltd. v. Vinay Mittal. The High Court observed that when\r\npart payment is made after the cheque is drawn, the payee has the option of either\r\ntaking a new cheque for the reduced amount or by making an endorsement on the\r\ncheque acknowledging that a part payment was made according to the provisions\r\nof Section 56 of the Act. It was also held that the notice of demand which requires\r\nthe drawer of the cheque to make payment of the whole amount represented in the\r\ncheque despite receiving part repayment against the sum, before the issue of\r\nnotice, cannot be valid under Section 138(b) of the Act. A similar view was taken\r\nby the High Court of Gujarat in Shree Corporation v. Anilbhai Puranbhai\r\nBansal<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">29. Under Section 56 read with Section 15 of the Act, an endorsement may be\r\nmade by recording the part-payment of the debt in the cheque or in a note </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appended to the cheque. When such an endorsement is made, the instrument\r\ncould still be used to negotiate the balance amount. If the endorsed cheque when\r\npresented for encashment of the balance amount is dishonoured, then the drawee\r\ncan take recourse to the provisions of Section 138. Thus, when a part- payment of\r\nthe debt is made after the cheque was drawn but before the cheque is encashed,\r\nsuch payment must be endorsed on the cheque under Section 56 of the Act. The\r\ncheque cannot be presented for encashment without recording the part payment.\r\nIf the unendorsed cheque is dishonoured on presentation, the offence under\r\nSection 138 would not be attracted since the cheque does not represent a legally\r\nenforceable debt at the time of encashment.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30. In view of the discussion above, we summarise our findings below:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n(i) For the commission of an offence under Section 138, the cheque that is\r\ndishonoured must represent a legally enforceable debt on the date of\r\nmaturity or presentation;\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) If the drawer of the cheque pays a part or whole of the sum between the\r\nperiod when the cheque is drawn and when it is encashed upon maturity,\r\nthen the legally enforceable debt on the date of maturity would not be the\r\nsum represented on the cheque;\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) When a part or whole of the sum represented on the cheque is paid by\r\nthe drawer of the cheque, it must be endorsed on the cheque as\r\nprescribed in Section 56 of the Act. The cheque endorsed with the\r\npayment made may be used to negotiate the balance, if any. If the\r\ncheque that is endorsed is dishonoured when it is sought to be encashed\r\nupon maturity, then the offence under Section 138 will stand attracted; </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iv) The first respondent has made part-payments after the debt was incurred\r\nand before the cheque was encashed upon maturity. The sum of rupees\r\ntwenty lakhs represented on the cheque was not the ‘legally enforceable\r\ndebt’ on the date of maturity. Thus, the first respondent cannot be\r\ndeemed to have committed an offence under Section 138 of the Act when\r\nthe cheque was dishonoured for insufficient funds; and\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(v) The notice demanding the payment of the ‘said amount of money’ has\r\nbeen interpreted by judgments of this Court to mean the cheque amount.\r\nThe conditions stipulated in the provisos to Section 138 need to be\r\nfulfilled in addition to the ingredients in the substantive part of Section\r\n138. Since in this case, the first respondent has not committed an offence\r\nunder Section 138, the validity of the form of the notice need not be\r\ndecided.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. For the reasons indicated above, the appeal against the judgment of the\r\nHigh Court of Gujarat dated 12 January 2022 is dismissed.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. Pending application(s), if any, stand disposed of. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2443213c43cea9ad6039f5675b0f0331.jpeg', '6290049d8b3d65bfc02e9050cfad8692.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-13', 1, '', '', '2022-10-12 16:26:38', '2022-10-13 08:11:44');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2293, 'OelAleFM34NnMYatkGkUaxgQq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Income Tax Act. When employer deposits employees contribution towards the EPF and ESI belatedly such sums received by the employer constitutes income. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Checkmate Services P. Ltd Vs Commissioner of Income Tax-1<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2833 of 2016 decided on 12 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice Uday Umesh Lalit, Justice S. Ravindra Bhat and Justice Sudhanshu Dhulia.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Leave granted. Berger Paints India Ltd. v Commissioner of Income Tax,\r\nKolkata-IV &amp; Anr.1 was the lead matter while hearing this batch of appeals.\r\nHowever, the parties agreed to treat Checkmate Services Pvt. Ltd. v\r\nCommissioner of Income Tax-I\r\n2\r\nas the lead appeal, for convenience. In all these\r\nappeals, the common question involved is with respect to the interpretation of\r\nSection 36(1)(va) and Section 43B of the Income Tax Act, 1961 (hereinafter, “IT\r\nAct”), and whether the appellant assessees are entitled to deduction of amounts\r\ndeposited by them towards contribution in terms of The Employees’ Provident\r\nFunds and Miscellaneous Provisions Act, 1952 (hereinafter, “EPF Act”), The\r\nEmployees’ Provident Funds Scheme, 1952 (hereinafter, “EPF Scheme”), The\r\nEmployees’ State Insurance Act, 1948 (hereinafter, “ESI Act”), The Employees’\r\nState Insurance (Central) Regulations, 1950 (hereinafter, “ESI Regulations”) or\r\nany other provident or superannuation fund.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. In the years under consideration, the Assessing Officers (hereinafter,\r\n“AO”) had ruled that the appellants had belatedly deposited their employees’\r\ncontribution towards the EPF and ESI, considering the due dates under the\r\nrelevant acts and regulations. Consequently, the AO ruled that by virtue of\r\nSection 36(1)(va) read with Section 2(24)(x) of the IT Act, such sums received\r\nby the appellants constituted “income”. Those amounts could not have been\r\nallowed as deductions under Section 36(1)(va) of the IT Act when the payment\r\nwas made beyond the relevant due date under the respective acts. In other words,\r\nas per the AO, as such sums were paid beyond the due dates as prescribed under\r\nthe respective acts, the right to claim such sums as allowable deduction while computing the income was lost forever. The assesseess pleas were unsuccessful before the Income Tax Appellate. Ultimate, in the case of the impugned judgment, the Gujarat High Court too rejected its pleas.</b><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. The factual narration reveals two diametrically opposed views in regard to\r\nthe interpretation of Section 36(1)(va) on the one hand and proviso to Section\r\n43(b) on the other. If one goes by the legislative history of these provisions, what\r\nis discernible is that Parliament’s endeavour in introducing Section 43B [which\r\nopens with its non-obstante clause] was to primarily ensure that deductions\r\notherwise permissible and hitherto claimed on mercantile basis, were expressly\r\nconditioned, in certain cases upon payment. In other words, a mere claim of\r\nexpenditure in the books was insufficient to entitle deduction. The assessee had\r\nto, before the prescribed date, actually pay the amounts – be it towards tax\r\nliability, interest or other similar liability spelt out by the provision.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>37. It is evident that the intent of the lawmakers was clear that sums referred\r\nto in clause (b) of Section 43B, i.e., “sum payable as an employer, by way of\r\ncontribution” refers to the contribution by the employer. The reference to “due\r\ndate” in the second proviso to Section 43B was to have the same meaning as\r\nprovided in the explanation to Section 36(1)(va). Parliament therefore, through\r\nthis amendment, sought to provide for identity in treatment of the two kinds of\r\npayments: those made as contributions, by the employers, and those amounts\r\ncredited by the employers, into the provident fund account of employees, received\r\nfrom the latter, as their contribution. Both these contributions had to necessarily\r\nbe made on or before the due date.&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>51. The analysis of the various judgments cited on behalf of the assessee i.e.,\r\nCommissioner of Income-Tax v. Aimil Ltd.\r\n24; Commissioner of Income-Tax and\r\nanother v. Sabari Enterprises25; Commissioner of Income Tax v. Pamwi Tissues\r\nLtd.\r\n26; Commissioner of Income-Tax, Udaipur v. Udaipur Dugdh Utpadak\r\nSahakari Sandh Ltd.\r\n27 and Nipso Polyfabriks (supra) would reveal that in all these\r\ncases, the High Courts principally relied upon omission of second proviso to\r\nSection 43B (b). No doubt, many of these decisions also dealt with Section 36(va)\r\nwith its explanation. However, the primary consideration in all the judgments,\r\ncited by the assessee, was that they adopted the approach indicated in the ruling\r\nin Alom Extrusions. As noticed previously, Alom Extrutions did not consider the\r\nfact of the introduction of Section 2(24)(x) or in fact the other provisions of the\r\nAct.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">53. The distinction between an employer’s contribution which is its primary\r\nliability under law – in terms of Section 36(1)(iv), and its liability to deposit\r\namounts received by it or deducted by it (Section 36(1)(va)) is, thus crucial. The\r\nformer forms part of the employers’ income, and the later retains its character as\r\nan income (albeit deemed), by virtue of Section 2(24)(x) - unless the conditions\r\nspelt by Explanation to Section 36(1)(va) are satisfied i.e., depositing such&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">amount received or deducted from the employee on or before the due date. In\r\nother words, there is a marked distinction between the nature and character of the\r\ntwo amounts – the employer’s liability is to be paid out of its income whereas the\r\nsecond is deemed an income, by definition, since it is the deduction from the\r\nemployees’ income and held in trust by the employer. This marked distinction\r\nhas to be borne while interpreting the obligation of every assessee under Section\r\n43B.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">54. In the opinion of this Court, the reasoning in the impugned judgment that\r\nthe non-obstante clause would not in any manner dilute or override the\r\nemployer’s obligation to deposit the amounts retained by it or deducted by it from\r\nthe employee’s income, unless the condition that it is deposited on or before the\r\ndue date, is correct and justified. The non-obstante clause has to be understood\r\nin the context of the entire provision of Section 43B which is to ensure timely\r\npayment before the returns are filed, of certain liabilities which are to be borne\r\nby the assessee in the form of tax, interest payment and other statutory liability.\r\nIn the case of these liabilities, what constitutes the due date is defined by the\r\nstatute. Nevertheless, the assessees are given some leeway in that as long as\r\ndeposits are made beyond the due date, but before the date of filing the return, the\r\ndeduction is allowed. That, however, cannot apply in the case of amounts which\r\nare held in trust, as it is in the case of employees’ contributions- which are\r\ndeducted from their income. They are not part of the assessee employer’s\r\nincome, nor are they heads of deduction per se in the form of statutory pay out.\r\nThey are others’ income, monies, only deemed to be income, with the object of\r\nensuring that they are paid within the due date specified in the particular law.\r\nThey have to be deposited in terms of such welfare enactments. It is upon deposit,\r\nin terms of those enactments and on or before the due dates mandated by such\r\nconcerned law, that the amount which is otherwise retained, and deemed an\r\nincome, is treated as a deduction. Thus, it is an essential condition for the\r\ndeduction that such amounts are deposited on or before the due date. If such</span><span style=\"font-size: 12pt;\">&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">interpretation were to be adopted, the non-obstante clause under Section 43B or\r\nanything contained in that provision would not absolve the assessee from its\r\nliability to deposit the employee’s contribution on or before the due date as a\r\ncondition for deduction.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>55. In the light of the above reasoning, this court is of the opinion that there is\r\nno infirmity in the approach of the impugned judgment. The decisions of the\r\nother High Courts, holding to the contrary, do not lay down the correct law. For\r\nthese reasons, this court does not find any reason to interfere with the impugned\r\njudgment. The appeals are accordingly dismissed.&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '81fa78a3dabda83cea7dd317202daa0c.jpeg', '153a75fd588436509a7ec7442963f8e0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-17', 1, '', '', '2022-10-13 12:47:07', '2022-10-17 19:38:49'),
(2294, 'DTZdoJNxbakCAGBG1zbz8Frmg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Landowners who obtained statusquo order cannot contend that as the award has not been declared, they shall be entitled to the enhanced amount of compensation under the provisions of the Act, 2013. Supreme Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bharat Petroleum Corporation Ltd and others Vs Nisar Ahmed Ganai and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6778 -6780 of 2022 decided on 12 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice Krishna Murari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The facts leading to the present appeals in a nut­shell are as under:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.1 That, the lands in question were sought to be acquired under the provisions of the State Land Acquisition Act, 1990 (hereinafter referred to as “State Act of 1990”). The notification under Section 4 of the State Act of 1990 was issued on 15.11.2016. The lands in question were sought to be acquired for the appellants – beneficiary. That thereafter declaration under Section 6 of the State Act of 1990 was issued on 12.11.2018. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.5 By the impugned judgment and order the Division Bench of the High Court has allowed the said writ petitions and has directed the appellants – original respondents to determine the compensation of the acquired lands in accordance with the provisions of the Act, 2013.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5.1 Having gone through the impugned common judgment and order passed by the High Court, the High Court has directed the appellants herein to determine and pay to the original owners the compensation under the Act, 2013 on the ground that no award under the State Act of 1990 has been published and/or declared. On fair reading of Section 24(1)(a) of the Act, 2013, it provides that notwithstanding anything contained in Act, 2013, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where no award under Section 11 of the said Land Acquisition Act has been made, then, all provisions of Act, 2013 relating to the determination of the compensation shall apply. Section 24(1) of the Act, 2013 speaks about the land acquisition proceedings initiated under the Land Acquisition Act, 1894. In the present case, the lands in question have been acquired under the provisions of the State Land Acquisition Act, 1990. Therefore, the acquisition of the lands in question is not under the Land Acquisition Act, 1894. It cannot be disputed that prior to the enactment of the Jammu & Kashmir Reorganization Act, 2019 and promulgation of the Jammu & Kashmir (Removal of Difficulties) Order, 2019, the Land Acquisition Act, 1894 was not applicable at all so as far as the State of Jammu & Kashmir is concerned. It is only on the enactment of the Jammu & Kashmir Reorganization Act, 2019, Act, 2013 shall be made applicable. It is the case on behalf of the original writ petitioners that as the provisions of the State Act of 1990 are pari materia to the Land Acquisition Act, 1894 and therefore, Section 24(1)(a) of the Act, 2013 shall be applicable. The aforesaid cannot be accepted. The language of Section 24(1)(a) of the Act, 2013 is very clear and unambiguous. It talks about the land acquisition under the provisions of the Land Acquisition Act, 1894 only and it does not speak about any other pari materia provision of different statutes. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. In view of the above and for the reasons stated above and our specific finding that with respect to the lands acquired under the provisions of the J & K Act, 1990 Section 24(1)(a) of the Act, 2013 shall not be applicable and even otherwise as observed hereinabove on merits also as the award could not be declared due to the pendency of the writ petitions before the High Court and the order of status quo, the High Court has committed a serious error in directing the appellants to pay the amount of compensation under the Act, 2013. To that extent the impugned common judgment and order passed by the High Court is unsustainable, both on facts as well as on law. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6.1 However, at the same time, as it is reported that the acquisition proceedings were challenged on other grounds also and the prayer to pay the compensation under the Act, 2013 was an alternative prayer, which has been granted by the High Court and therefore, the High Court did not go into the merits of the submissions made on behalf of the original land owners with respect to the quashing of the land acquisition proceedings on other grounds, the matters are to be remanded to the High Court to decide the writ petitions afresh in accordance with law and on its own merits on the other grounds if any, challenging the land acquisition proceedings under the State Act of 1990.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. In view of the above and for the reasons stated above, all these appeals succeed. The impugned common judgment and order dated 06.10.2021 passed by the High Court allowing the writ petitions and directing the appellants to pay to the original writ petitioners / original land owners the compensation as per the Act, 2013 is hereby quashed and set aside. As the High Court has not decided the writ petitions on merits on other grounds with respect to quashing of the land acquisition proceedings, all the writ petitions are remitted back to the High Court to decide and dispose of the said writ petitions afresh in accordance with law and on its own merits so far as other grounds with respect to the quashing of the land acquisition proceedings, which shall be dealt with by the High Court in accordance with law and on its own merits. However, the issue with respect to the applicability of the Act, 2013 is concluded and shall not be reopened by the High Court and it is observed and clarified that the High Court shall consider on merits other submissions, if any raised in the writ petitions, with respect to quashing of the land acquisition proceedings only.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Present appeals are allowed accordingly to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e73526f20e757f3b2d9e35589d1d700b.jpeg', 'b3dcdf2bf2729d9857f3d1967b8fe0bb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-14', 1, '', '', '2022-10-13 13:14:07', '2022-10-14 10:06:17'),
(2295, '7d64koQaaDfmGnjxojWlrSfBS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Specific performance. So long as a suit for specific performance is filed within the period of limitation, delay cannot be a ground to refuse the relief of specific performance to the plaintiff. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>P. Daivasigamani Vs S. Sambandan.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 9006 of 20211 decided on 12 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sanjiv Khanna and Justice Bella M. Trivedi</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The present appeal is directed against the judgment and order dated\r\n15.06.2010 passed by the High Court of Judicature at Madras in\r\nAppeal Suit No. 196 of 2002, whereby the High Court has allowed the\r\nsaid appeal, modified the decree passed by the Subordinate Judge,\r\nPoonamallee (hereinafter referred to as the “Trial Court”) in O.S. 212\r\nof 1993, and decreed the said suit by granting the prayer for specific\r\nperformance and also for permanent injunction against the present\r\nappellant (original defendant) in respect of the suit property.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The short facts given rise to the present appeal are that the appellant\r\nMr. P. Daivasigamani was the owner of the suit land i.e., the land to\r\nan extent of 1 acre out of 1.80 acre of wetland comprised in survey\r\nnos. 287 and 288, situated in No. 85 Ayanambakkam, District\r\nAmbattur. He had entered into an agreement to sell the suit land with\r\nthe respondent Shri S. Sambandan on 05.10.1989. The appellant had\r\nagreed to sell the said land for a sum of Rs. 6,50,000/-. On the date of\r\nexecution of the agreement, the respondent had paid a sum of Rs.\r\n50,000/- by way of earnest money as part of sale consideration. The\r\ntime for completion of sale transaction was stipulated to be 6 months\r\nin the said agreement. As per the case of the respondent, though he\r\nhad periodically contacted the appellant requesting him to execute the\r\nsale deed, and had shown his readiness and willingness to perform his <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">part of the contract, the appellant failed to respond or to perform his\r\npart of the contract. The respondent thereafter vide the letter dated\r\n17.03.1990 sent by registered post, called upon the appellant to\r\nexecute a deed of power of attorney and to conclude the said\r\ntransaction, however there was no response from the appellant to the\r\nsaid letter. The respondent thereafter again sent a notice through his\r\nlawyer on 26.03.1990, to the appellant which was returned with an\r\nendorsement “refused”. The respondent thereafter caused a public\r\nnotice published in the Tamil daily “Dhina Thanthi” on 02.05.1990\r\nand in English daily “Indian Express” on 06.05.1990, informing the\r\npublic at large not to enter into any sale transaction with the appellant\r\nin respect of the suit property. Despite the said efforts having been\r\nmade by the respondent, the appellant failed to fulfill his obligation\r\nunder the agreement. The respondent-plaintiff thereafter filed the suit\r\nseeking specific performance of the said agreement.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Now, adverting to the first contention raised by the learned counsel for\r\nthe appellant that the respondent – plaintiff having filed the suit for\r\nspecific performance of the agreement after the expiry of three years\r\nof the agreement, it may be noted that as per Article 54 of the\r\nLimitation Act, 1963, the suit for the specific performance of contract\r\ncould be filed within three years from the date fixed for the\r\nperformance, or when no such date has been fixed, from the date when\r\nthe plaintiff has noticed that performance is refused. In the instant\r\ncase, the execution of the agreement on 05.10.1989 has not been\r\ndisputed. It was also proved by the respondent by leading the evidence\r\nthat the respondent had sent a notice dated 17.03.1990 by registered\r\npost and called upon the appellant to execute the power of attorney\r\nand to conclude the sale transaction in view of Clause 10 of the\r\nagreement. However, there was no response from the appellant to the\r\nsaid letter. The respondent thereafter had again sent a notice through\r\nhis lawyer on 26.03.1990, which had come back with the endorsement\r\n“refused”. Thereafter, again the respondent caused a public notice\r\npublished in the Tamil daily “Dhina Thanthti” on 02.05.1990 and in\r\nthe English daily “Indian Express\" on 06.05.1990. The appellant\r\nhaving not responded to any of the said notices, the suit was filed on\r\n26.03.1993. Since the sale had to be completed within a period of six\r\nmonths from the date of the execution of the agreement dated <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">05.10.1989, the respondent had called upon the appellant to perform\r\nhis part of the contract by issuing the notices within six months of the\r\nsaid agreement. However, the appellant having failed to respond to\r\nany of the said notices, it was deemed that the appellant had refused\r\nto perform his part of contract. The period of limitation had started\r\nrunning from the date the respondent noticed that the performance was\r\nrefused by the appellant and not from the date of the execution of\r\nagreement in question.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. This takes us to the next question as to whether the High Court was\r\njustified in granting the relief of specific performance in favour of the\r\nrespondent – plaintiff? Now, before answering the said question, it may\r\nbe noted that some of the relevant provisions contained in the Specific\r\nRelief Act, 1963 (hereinafter referred to as the “Said Act”) have\r\nundergone a substantive change by way of amendments made by the\r\nAct 18 of 2018, which came into force with effect from 01.10.2018. As\r\nper the recent decision of the three-judge bench of this Court, in case of\r\nSmt. Katta Sujatha Reddy v. Siddamsetty Infra Projects Ltd., Civil\r\nAppeal No. 5822 of 2022 decided on 25th August, 2022, the said Act\r\n18/2018 amending the Specific Relief Act is prospective in nature and\r\ncannot apply to those transactions that took place prior to its coming\r\ninto force. In the instant case, the subject agreement having taken place\r\nprior to the said Amendment, we will have to take into consideration\r\nthe legal position as it stood prior to the 2018 amendment</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. Having said that, let us examine the facts of this case. As discussed\r\nearlier, the respondent – plaintiff had not only averred in the plaint\r\nabout his issuing notices within the period of six months of the\r\nagreement in question, calling upon the appellant – defendant to\r\nperform his part of contract and conclude the sale transaction, also\r\nshowing his readiness and willingness to perform his part of the\r\ncontract, but the respondent had also proved the same by stepping into\r\nthe witness box. Though much reliance was placed by the learned\r\ncounsel for the appellant on the decisions of this Court in case of Ritu\r\nSaxena vs. J.S. Grover & Another (2019) 9 SCC 132, in case of\r\nAbdullakoya Haji Vs. Rubis Tharayil (2019) 17 SCC 216, and other\r\ncases, to submit that the respondent had failed to establish his financial\r\ncapacity to pay the balance amount of consideration at the relevant time\r\nand had also failed to deposit the said amount in the court at the time of\r\nfiling of the suit, he was not entitled to the discretionary relief of\r\nSpecific Performance as granted by the Court, we do not find any\r\nsubstance in any of the said submissions. As per the ratio of judgment\r\nlaid down by the three-judge bench in case of Syed Dastagir (supra),\r\nthe compliance of “readiness and willingness” has to be in spirit and\r\nsubstance and not in letter and form, while making averments in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">plaint. As per the Explanation (i) to Section 16(c), he need not tender\r\nto the defendant or deposit the amount in the court, but he must aver\r\nperformance of, or readiness and willingness to perform the contract\r\naccording to its true construction.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>22. Having regard to the facts and circumstances of the case and to the\r\nconduct of the parties, we have no hesitation in holding that there was\r\ndue compliance of Section 16(c) read with its Explanation on the part\r\nof the respondent and that it was the appellant who had failed to perform\r\nas per the terms of the agreement, though called upon by the respondent\r\nto perform. The High Court also had rightly held that the plaintiff had\r\ncomplied with the requirements of Section 16(c) of the said Act by\r\nmaking a specific pleading with regard to his readiness and willingness\r\nand also proving the same by reliable evidence. This Court does not\r\nfind any illegality or infirmity in the impugned judgment passed by the\r\nHigh Court. We, therefore confirm the same, so far as granting of\r\ndecree for specific performance of the agreement in question is\r\nconcerned </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">23. At this juncture, the Court cannot be oblivion to the fact that there has\r\nbeen a steep rise in the price of immovable properties since last few\r\ndecades. Before the final hearing of the appeal, the parties were sent to\r\nthe Mediation Centre for exploring the possibility of settlement,\r\nhowever, the mediation remained unsuccessful. Having regard to the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">fact that the agreement in question was entered into between the parties\r\nin October 1989, and considering the steep rise in the prices of land, we\r\nare of the opinion that interest of justice would be met if the respondent\r\nis directed to pay some more amount. It is also noted that the appellant\r\nhad enjoyed the possession of the suit land all through out. Hence in the\r\nfacts and circumstances of the case, the respondent is directed to deposit\r\na sum of Rupees One Crore in the Trial Court towards the sale\r\nconsideration, over and above the amount that might have been\r\ndeposited by him, within a period of eight weeks from today. On such\r\ndeposit being made, the appellant shall execute the sale deed in favour\r\nof the respondent and shall also be at liberty to withdraw the said\r\namount deposited by the respondent.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>24. The appeal is dismissed subject to the aforesaid directions.</b></span><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a3a9130210a710a4f14625a4b68017ae.jpeg', 'e3bcacba095731a0de2c16fc4e05c9c3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-14', 1, '', '', '2022-10-13 13:28:28', '2022-10-14 06:36:11'),
(2296, 'SnEc1JapHcp64lj8j5EHqwYWM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Wealth Tax Act, 1957. Equity shares under the lock-in period and not quoted in any recognised stock exchange with regularity from time to time cannot be considered as “quoted shares”. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Deputy Commissioner of Gift Tax Vs M/S BPL Limited<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3265 of 2016 decided on 13 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sanjiv Khanna and Justice J.K. Maheshwari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The issue raised in these appeals relates to the valuation of\r\n29,46,500 shares of M/s. BPL Sanyo Technologies Limited and\r\n69,49,900 shares of M/s. BPL Sanyo Utilities and Appliances\r\nLimited, which were gifted by the respondent-assessee, M/s. BPL\r\nLimited, to M/s. Celestial Finance Limited on 2nd March 1993. The\r\nshares of M/s. BPL Sanyo Technologies Limited and M/s. BPL\r\nSanyo Utilities and Appliances Limited, both public limited\r\ncompanies, were listed and quoted on the stock exchanges.\r\nHowever, these gifted shares, being promoter quota shares <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">allotted to the assessee on 17th November 1990 and 10th July 1991,\r\nwere under a lock-in period up to 16th November 1993 and 25th May\r\n19941\r\n, respectively.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2. As per the provisions of the Gift Tax Act, 19582\r\n, as it was applicable\r\non the date on which the gift was made, gift tax at the applicable\r\nrate is chargeable on the value of the taxable gift. Sub-section (1)(a)\r\nto Section 43 of the G.T. Act states that where a property is\r\ntransferred otherwise than for adequate consideration, the amount\r\nby which the market value of the property, at the date of the transfer,\r\nexceeds the value of the consideration, shall be deemed to be a gift\r\nmade by the transferor. Sub-section (1) to Section 64 of the G.T. Act\r\nstates that the value of any property, other than cash, which is\r\ntransferred by way of gift, shall be its value on the date on which </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the gift was made and shall be determined in the manner as laid\r\ndown in Schedule II of the G.T. Act. Sub-section (1) to Section 6 is\r\nsubject to the provisions of sub-section (2) to Section 6 of the G.T.\r\nAct, which sub-section need not be elucidated as it is not applicable\r\nin the context of the present case. It is an accepted position that the\r\nmachinery provision relating to the method of valuation in Schedule\r\nII of the G.T. Act is mandatory and cannot be deviated</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">13. Read in this manner, Rule 21 of Part H of Schedule III of the W.T.\r\nAct is a rule which has been enacted to clarify and remove doubts.\r\nIt has reiterated and affirmed the dictum in Ahmed G.H. Ariff\r\n(supra) and Purshottam N. Amarsay (supra) that notwithstanding </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the negative covenants prohibiting or restricting transfer, the\r\nproperty should be valued for the purpose of the W.T. Act and the\r\nG.T. Act, but the valuation is not by overlooking or ignoring the\r\nrestrictive conditions. The shares in the lock-in period have market\r\nvalue, which would be the value that they would fetch if sold in the\r\nopen market. Rule 21 of Part H of Schedule III of the W.T. Act\r\npermits valuation of the property even when the right to transfer the\r\nproperty is forbidden, restricted or contingent. Rights and limitations\r\nattached to the property form the ingredients in its value. The\r\npurpose is to assume that the property which is being valued is\r\nbeing sold, and not to ignore the limitations for the purpose of\r\nvaluation. This is clear from the wording of Rule 21 of Part H of\r\nSchedule III of the W.T. Act, which when read carefully expresses\r\nthe legislative intent by using the words “hereby declared”. The\r\nRule declares that the price or other consideration for which any\r\nproperty may be acquired by, or transferred, to any person under\r\nthe terms of a deed of trust or through any other restrictive\r\ncovenant, in any instrument of transfer, is to be ignored as per the\r\nprovisions of the Schedule III of the W.T. Act. However, the price of\r\nsuch property is the price of the property with the restrictions if sold\r\nin the open market on the valuation date. In other words,\r\nnotwithstanding the restrictions, hypothetically the property would </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be assumed to be saleable, but the valuation as per the Schedule\r\nIII of the W.T. Act would be made accounting and taking the\r\nlimitation and restrictions, and such valuation would be treated as\r\nthe market value. The rules do not postulate a charge in the nature\r\nand character of the property. Therefore, the property has to be\r\nvalued as per the restrictions and not by ignoring them.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. Thus, Rule 21 of Part H of Schedule III of the W.T. Act permits\r\nvaluation and ascertainment of the market value as per the\r\nprovisions of Schedule III of the W.T. Act, but does not state that\r\nthe valuation will be done by disregarding the restrictions, or by\r\nenhancing the rights which have been transferred, or by revaluation\r\nof the asset when provisions of Schedule III are invoked for the\r\npurpose of valuation of an asset under the W.T. Act.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. However, one aspect is required to be clarified, viz. explanation to\r\nRule 2(9) of Part A, Schedule III of the W.T. Act. The certificate from\r\nthe concerned stock exchange is only to state whether an equity\r\nshare, preference share or debenture, as the case may be, was\r\nquoted with the regularity from time to time and whether the\r\nquotations of such shares or debentures are based on current\r\ntransactions made in the ordinary course of business. The\r\nexplanation does not prohibit the authority, tribunal or the court from <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">examining whether a particular share, be it equity or preference\r\nshare, is a “quoted share” or an “unquoted share” in terms of subrules (9) and (11) of Rule 2 of Part A of Schedule III of the W.T. Act.\r\nThis right which is conferred on the authorities under the W.T. Act\r\nor the G.T. Act is not delegated to the stock exchange. A decision\r\nof the authority is amenable and can be examined when challenged\r\nin an appeal.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>16. In view of the aforesaid discussion, and for the reasons stated\r\nabove, the present appeal by the Revenue is to be dismissed. We\r\nmust record that the assessee has not pressed the ground raised\r\nin its appeal challenging the impugned order, which is to be\r\ndismissed as not pressed. We order accordingly. There shall be no\r\norder as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ff7f45fede1748f21a22b1102bc7a256.jpeg', 'f1470dc3d8941dd1dbd31ca2ccd2f23d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-15', 1, '', '', '2022-10-14 13:18:33', '2022-10-15 09:20:00');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2297, 'FphUBytT2gGrz9D9c0biIQQM6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cooling machine capable of producing hot water cannot be considered as ‘heat pump’ to gain concessional tariff benefits under the Central Excise Tariff Act, 1985. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Thermax Ltd Vs Commissioner of Central Excise.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6048-6050 of 2009 decided on 13 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.M. Joseph and Justice Hrishikesh Roy.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. This appeal is filed under Section 35L of the\r\nCentral Excise Act, 1944 and the issue to be considered\r\nhere is whether the product manufactured by the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appellant is classifiable as heat pump under the\r\nheading 84.18 of the Schedule to the Central Excise\r\nTariff Act, 1985. The question is important for the\r\nappellant because under notification 155/86-CE dated\r\n1.3.1986, heat pumps falling under Chapter 8418,\r\nenjoyed a limited exemption from the levy of excise\r\nduty.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The appellant had sold their manufactured product\r\nby describing them as heat pumps but the Assistant\r\nCommissioner of Central Excise negated such\r\ndescription. On appeal by the assessee, the\r\nCommissioner of Central Excise (Appeals) however agreed\r\nwith the manufacturer’s claim. But in the appeal by\r\nthe Revenue, the Customs, Excise and Service Tax\r\nAppellate Tribunal, Mumbai (for short “CESTAT”) has\r\nreversed the decision. The conclusion in the impugned\r\norder dated 22.1.2009, is that the product is not heat\r\npump and therefore, ineligible for concessional rate of\r\nduty under Sl. No. 2 of Notification No. 155/86-CE\r\ndated 1.3.1986. It was also held that the product is a\r\ncomplete machine and cannot be treated as part of a\r\nmachine. It was accordingly declared that the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">manufacturer is disentitled to the concessional rate of\r\nduty in terms of the notification, for their product.\r\nIncidentally, the CESTAT also held that the value of\r\nLithium Bromide is not to be calculated in the\r\nassessable value of the machine. However, to facilitate\r\ncomputation of the payable sum of duty by the\r\nmanufacturer, the matter has been remanded to the\r\nadjudicating authority. Earlier, the appellant had\r\npreferred a writ petition before the Bombay High Court\r\nto challenge the decision of the CESTAT but because the\r\nstatutory remedy of appeal to this Court is available,\r\nthe High Court dismissed the writ petition on 26.3.2009\r\nresulting in the present appeal.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. If the Principal Purpose Test is applied for the\r\nmachine manufactured by the appellant, it is quite\r\napparent that the product MVAC is intended to produce\r\nchilled water. Moreover, even if the option of availing\r\nhot water is available, significantly, the production\r\nof chilled water never ceases, while the machine is\r\noperating. Therefore, the principal purpose of the\r\nmachine is undoubtedly to produce chilled water.\r\nTherefore, taking help from Chapter Note 7, producing\r\nchilled water is to be taken as the sole purpose of the\r\nModified Vapour Absorption Chillers manufactured by the\r\nappellants. The CESTAT by applying the ratio laid down\r\nin Commissioner of Central Excise, Delhi Vs. Carrier\r\nAircon Ltd.5 has therefore concluded that the function <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the machine is only to chill water or bring it to a\r\nvery low temperature.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. The above conclusion is supported by the ratio in\r\nXerox India Ltd. Vs. Commissioner of Customs6, where\r\nJustice H.L. Dattu while adverting to functional\r\nclassification of multi-functional machines opined that\r\nin case of machines capable of performing two or more\r\nsupplementary/alternative functions, the appropriate\r\nclassification should be in reference to its principal\r\nfunction.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n20. The principles enunciated in DL Steels (Supra) qua\r\nsignificance of HSN and the manner in which the\r\nappellant’s product have been treated on the earlier\r\noccasions by the Revenue, together with the fact that\r\nit had been treated as a chiller and the customers have\r\nbeen purchasing MVAC primarily for the purpose of\r\nchilling, should have a definite bearing on the\r\nclassification issue under consideration. The MVAC\r\nmanufactured by the Appellant should normally be not\r\nclassified as a heat pump, notwithstanding the fact\r\nthat the manufacturer has modified the vapour <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">absorption chiller, using additional components.\r\nMoreover, the definition provided in the HSN must have\r\nan overriding influence over any other definition for\r\nthe purpose of Classification of the product.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">21. The end use of MVAC is to produce Chilled Water.\r\nThe use of heat as one of the sources in the airconditioning system would not take away the primary or\r\nbasic function of the MVAC, which is to cool and not\r\nheat water. The additional heating capability of the\r\nmachine thus raises a peculiar dilemma, but then one\r\ncan be guided by the market parlance test which shows\r\nthat the machine is perceived and purchased only as a\r\ncooling device. The circumstances here remind us of the\r\nsomewhat similar predicament of Lord Illingworth, the\r\ncharacter in A Women of No Importance. In this classic\r\nplay of Oscar Wilde, in the context of observing all\r\nkinds of human capabilities, the dramatis personae made\r\nthat classic remark on those, “who do the improbable.”\r\nThe uncharacteristic capability of the cooling machine\r\nto also produce hot water, should not however deflect\r\nus and it would be appropriate to observe in this case </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that a chiller machine is attempting to masquerade as a\r\nheat pump, to gain concessional tariff benefits. The\r\nconclusion therefore is inevitable that the MVAC\r\nmachine must not be categorized as a Heat Pump.\r\nConsequently, it is declared that the product\r\nmanufactured by the appellants merit classification\r\nunder Sub-heading 8418.10 of the central excise Tariff\r\nAct, 1985, in the category of refrigerating equipment.\r\nThe view of the CESTAT is thus affirmed. The appeals\r\nare accordingly dismissed leaving the parties to bear\r\ntheir own cost.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '01f98cdda92d51050726b52e3bafaa42.jpeg', 'f4bb8ee068ea7b5a09e4a22cb96cef36.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-17', 1, '', '', '2022-10-14 14:09:33', '2022-10-17 06:56:27'),
(2372, '8fzCFHYbEBLQXe7w62Jv7vSNP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Even the delay of 25 years cannot be a ground to reject application for restoration of deleted entry in revenue records when the applicant acquired the title by registered sale deed which remains unchallenged. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Dattatraya Appa Khot by LRS Vs The Deputy Commissioner and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 68659 of 2010 decided on 13 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Petitioner claims that his father-in-law namely late Appa\r\nKhot purchased land bearing Sy. No.280/1+2B measuring 3\r\nacres 16 guntas from the original owners namely BANDU @\r\nAllappa Appu Desai, Mahadev Appanna Latte and Ravsaheb\r\nAppanna Latte through a registered sale deed dated\r\n19.06.1963 for valuable consideration and in pursuance of the\r\nsaid sale deed, his name was mutated in the revenue records\r\nvide M.E. No.1971.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The respondent No.3 directed the petitioner to get\r\ntheir shares measured and thereafter apply for correction of the\r\nentry. Against which the petitioner filed an appeal under\r\nSection 136(2) of the Karnataka Land Revenue Act, 1964 (for </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">short, “the Act”) before the respondent No.2. The respondent\r\nNo.2 dismissed the appeal on the ground of delay, since the\r\nappeal was filed after 25 years from the date of deletion of the\r\nname of the father-in-law of the petitioner. Against which the\r\npetitioner filed a revision petition under Section 136(3) of the\r\nAct. The respondent No.1 dismissed the revision petition,\r\nagainst which the present petition is filed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. The name of the deceased father-in-law of the\r\npetitioner was mutated in the revenue records in respect of the\r\nsubject land on the basis of a registered sale deed dated\r\n19.06.1963, as specified under Section 128 of the Act. At the\r\ntime of survey resettlement, the name of the deceased fatherin-law of the petitioner was deleted without issuing notice. The\r\ndeceased father-in-law of the petitioner having acquired title\r\nbeing the subject land by virtue of the registered sale deed, the\r\nrespondent revenue authorities are under an obligation to enter\r\nthe name of the deceased father-in-law of the petitioner after\r\nsurvey resettlement, as specified under Section 128 of the Act.\r\nInstead, the Revenue Authorities on technical ground has\r\nrejected the request which is contrary to Section 128 of the\r\nAct.\r\n8. For the foregoing discussion, I am of the opinion\r\nthat the name of the father-in-law of the petitioner requires to\r\nbe restored in the revenue records in pursuance of the sale\r\ndeed dated 19.06.1963 which has attained finality.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The writ petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5a0de82f29db0fc31347d841a824f9d0.jpeg', '9d1c0959bf3612902d49bdc7a45a973a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-07', 1, '', '', '2022-11-04 15:38:35', '2022-11-07 03:21:49'),
(2373, 'WOnpyIgR5DeiiSNmxl7z5m6Wl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Income Tax Act. Leave Travel Concession (LTC) is not for foreign travel and is meant for travel within India. Tax at source must be deducted while releasing payments to employees as LTC. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>State Bank of India Vs Assistant Commissioner of Income Tax.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8181 of 2022 decided on 4 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice Uday Umesh Lalit, Justice S Ravindra Bhat and Justice Sudhanshu Dhulia.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Leave granted. The appellant (State Bank of India) has\r\nchallenged the judgement dated 13.01.2020 passed by a\r\nDivision Bench of the Delhi High Court in ITA No. 05/2020\r\nwhich has dismissed the appeal filed by the appellant and\r\nupheld the order passed by the Income Tax Appellate\r\nTribunal (ITAT) dated 09.07.2019, holding the appellant as\r\nan assessee in default for the Assessment Year (AY) 2013-\r\n14, for not deducting TDS of its employees.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The question which has fallen for our consideration is\r\nwhether the appellant was in default for not deducting tax\r\nat source while releasing payments to its employees as\r\nLeave Travel Concession (LTC)</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. LTC is a payment made to an employee which is\r\nexempted as ‘income’ and hence under normal\r\ncircumstances, there should be no question of TDS on this\r\npayment. All the same, LTC has to be availed by an\r\nemployee within certain limitations, prescribed by the law.\r\nFirstly, the travel must be done from one designated place\r\nin India to another designated place within India. In other\r\nwords, LTC is not for a foreign travel. Secondly, LTC is\r\ngiven for the shortest route between these two places.\r\nAdmittedly, the employees of SBI in the present case, had\r\ndone their travel not just within India but their journey\r\ninvolved a foreign leg as well. It was also not the shortest\r\nroute, consequently, according to the Revenue this was\r\nnot a travel from a designated place within India to\r\nanother designated place in India and thus it was in\r\nviolation of the statutory provisions and hence the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">payment made to its employees by the Bank could not be\r\nexempted, and the Bank ought to have deducted Tax at\r\nsource, while making this payment. To give an example of\r\none of the employees of the appellant who availed LTC\r\ntaking a circuitous route of Delhi- Madurai- ColumboKuala Lampur- Singapore- Columbo- Delhi and his claim\r\nwas fully reimbursed by the appellant and no tax was\r\ndeducted under Section 192(1) for the same.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The above reasons given by the appellant-bank\r\nhowever, has not found favour either with the Assistant\r\nCommissioner of Income Tax or with the Commissioner of\r\nIncome Tax (Appeals) or even the High Court. After\r\nexamining the matter our considered opinion is that the\r\nview taken by the Delhi High Court and the Tribunal and\r\neven by the revenue in its initiation of proceedings cannot\r\nbe faulted. The appellant whom we shall refer to as the\r\n‘assessee-employer’ ought to have deducted tax at\r\nsource</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. The provisions of law discussed above prescribe\r\nthat the air fare between the two points, within India\r\nwill be given and the LTC which will be given will be of\r\nthe shortest route between these two places, which\r\nhave to be within India. A conjoint reading of the\r\nprovisions discussed herein with the facts of this case\r\ncannot sustain the argument of the appellant that the\r\ntravel of its employees was within India and no\r\npayments were made for any foreign leg involved.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. We do not want to get into the role of the travel\r\nagencies and the present dynamics of air fare, but it\r\nis difficult for us to accept that a person will avail\r\nforeign tour without paying any price for it. We leave\r\nit at that. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. The contention of the Appellant that there is no\r\nspecific bar under Section 10(5) for a foreign travel\r\nand therefore a foreign journey can be availed as long\r\nas the starting and destination points remain within\r\nIndia is also without merits. LTC is for travel within\r\nIndia, from one place in India to another place in\r\nIndia. There should be no ambiguity on this.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. The second argument urged by the appellant that\r\npayments made to these employees was of the\r\nshortest route of their actual travel cannot be\r\naccepted either. It has already been clarified above,\r\nthat in view of the provisions of the Act, the moment\r\nemployees undertake travel with a foreign leg, it is\r\nnot a travel within India and hence not covered under\r\nthe provisions of Section 10(5) of the Act<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16.The aforementioned order passed by the CIT(A) has\r\nrightly held that the obligation of deducting tax is\r\ndistinct from payment of tax. The appellant cannot\r\nclaim ignorance about the travel plans of its\r\nemployees as during settlement of LTC Bills the\r\ncomplete facts are available before the assessee\r\nabout the details of their employees’ travels.\r\nTherefore, it cannot be a case of bonafide mistake, as\r\nall the relevant facts were before the Assessee\r\nemployer and he was therefore fully in a position to\r\ncalculate the ‘estimated income’ of its employees.\r\nThe contention of Shri K.V. Vishwanathan, learned <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">senior advocate that there may be a bonafide\r\nmistake by the assessee-employer in calculating the\r\n‘estimated income’ cannot be accepted since all the\r\nrelevant documents and material were before the\r\nassessee- employer at the relevant time and the\r\nassessee employer therefore ought to have applied\r\nhis mind and deducted tax at source as it was his\r\nstatutory duty, under Section 192(1) of the Act.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>17. In conclusion we do not find any reason to interfere\r\nwith the order passed by the Delhi High Court. The\r\nappeal is dismissed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'acdb673e80a846f62eb4d2e4ba0b48bb.jpeg', '81ea73152a64f2ef20ff52ef3dbe631c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-09', 1, '', '', '2022-11-05 13:51:18', '2022-11-09 08:31:18'),
(2374, 'PHw6mc2yhwATyGaoXEewZdBMN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Income Tax Returns cannot be relied as accurate guide to determine real income of parties in matrimonial disputes. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kiran Tomar and others Vs State of Uttar Pradesh and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1865 of 2022 decided on 31 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dhananjaya Y Chandrachud and Justice Hima Kohli.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The Additional Principal Judge of the Family Court at District Gautambudh Nagar,\r\nby an order dated 11 March 2022, allowed Miscellaneous Case No 197 of 2016\r\ninstituted by the appellants under Section 125 of the Code of Criminal Procedure\r\n1973 and directed the second respondent to pay maintenance at the rate of Rs\r\n20,000 per month to the first appellant and Rs 15,000 each to the second and\r\nthird appellants, who are daughters of the first appellant and the second\r\nrespondent.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. On the first aspect, it is well-settled that income tax returns do not necessarily\r\nfurnish an accurate guide of the real income. Particularly, when parties are\r\nengaged in a matrimonial conflict, there is a tendency to underestimate income.\r\nHence, it is for the Family Court to determine on a holistic assessment of the\r\nevidence what would be the real income of the second respondent so as to\r\nenable the appellants to live in a condition commensurate with the status to\r\nwhich they were accustomed during the time when they were staying together.\r\nThe two children are aged 17 and 15 years, respectively, and their needs have\r\nto be duly met.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. In this view of the matter, the High Court was not justified in setting aside the\r\norder of the Family Court on the basis of the reasoning which has been extracted\r\nabove in the earlier part of this order.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. At the same time, having heard submissions of both the parties, we are of the\r\nview that it would be appropriate to restore the Criminal Revision, namely,\r\nCriminal Revision No 1670 of 2022 to the file of the High Court of Judicature at\r\nAllahabad for consideration afresh. In order to facilitate this exercise, the\r\nimpugned order of the High Court dated 10 August 2022 is set aside and the\r\nCriminal Revision is restored to the file of the High Court, conditional with the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">directions issued hereafter.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>13. By the interim order of this Court dated 30 September 2022, this Court, while\r\nissuing notice, directed the second respondent to pay the arrears of\r\nmaintenance computed in accordance with the order of 11 March 2022 of the\r\nFamily Court to the appellants before the next date of listing. The petition was\r\ndirected to be listed on 31 October 2022.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>14. During the course of the hearing, Mr Ravi Prakash Mehrotra, senior counsel, has\r\nsubmitted a statement indicating that the second respondent has paid an\r\namount of Rs 1,00,000 to the first appellant, Rs 1,50,000 to the second appellant\r\nand an amount of Rs 1,00,000 to the third respondent on 21 October 2022, 26\r\nOctober 2022 and 27 October 2022 towards arrears of maintenance. The\r\nstatement tendered to this Court indicates that from 5 July 2016 until 31 October\r\n2022, an amount of Rs 14.20 lakhs, Rs 10.40 lakhs and Rs 9.90 lakhs is due and\r\noutstanding to the three appellants respectively.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. The second respondent has shown scant regard to the order of this Court by\r\nfailing to comply with the interim direction. Ordinarily, we would have been\r\ninclined to pass a coercive order against the second respondent, but, in order to\r\nfurnish a further opportunity to him to comply, we are passing a conditional\r\norder.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16 The order is as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) The second respondent shall, in compliance with the interim order dated <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">30 September 2022, pay the entire arrears of maintenance payable to the\r\nappellants in terms of the order dated 11 March 2022 of the Additional\r\nPrincipal Judge, Family Court, District Gautambudh Nagar in Miscellaneous\r\nCase No 196 of 2016 on or before 31 December 2022;\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(ii) Conditional on compliance with (i) above, the impugned order of the High\r\nCourt dated 10 August 2022 is set aside and Criminal Revision No 1670 of\r\n2022 is restored to the file of the High Court;\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(iii) In the event that the second respondent fails to comply with the above\r\ndirection for the payment of the arrears of maintenance by 31 December\r\n2022, the Criminal Revision Instituted by the second respondent before\r\nthe High Court of Judicature at Allahabad, being Criminal Revision No 1670\r\nof 2022, shall stand dismissed;\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(iv) The payments which the second respondent has been directed to make to\r\nthe appellants shall abide by the final orders as may be passed by the\r\nHigh Court in the pending revisional proceedings; and\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(v) During the pendency of the proceedings before the High Court, the second\r\nrespondent shall continue to pay the amount, as directed by the Family\r\nCourt, from month to month on or before the seventh day of each\r\nsucceeding month commencing from 7 November 2022, subject to such\r\nfurther orders as may be passed by the High Court. </span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. The appeal is allowed in the above terms.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. Pending application, if any, stands disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5c409db06433f4808b44c46c6e59e980.jpeg', '9acd60629fdc69c7844c2edfbb5f4d03.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-07', 1, '', '', '2022-11-06 18:15:32', '2022-11-07 06:54:55'),
(2299, 'AhkthU9MlEK2mrVUhdcckKe1Y', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A stockbroker has to obtain a certificate of registration from SEBI for each of the stock exchanges where he operates by paying ad valorem fee. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Securities and Exchange Board of India Vs National Stock Exchange Members Association and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 435 of 2007 decided on 13 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ajay Rastogi and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. SEBI has been established under provisions of the Act,\r\n1992 with an object to protect the interest of investors in the\r\nsecurities market and to promote the development of, and to\r\nregulate the securities market. SEBI was created as a regulator\r\nto regulate the securities’ market which includes dealing in\r\nshares, debentures, derivates, etc. in recognised stock\r\nexchanges. It may be relevant to note that before SEBI was </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">formed, each stock exchange admitted members and the\r\nbrokers/sub-brokers could deal in securities in accordance\r\nwith bye-laws of each of such stock exchanges. The law that\r\ngoverned prior to the Act, 1992 was the Securities Contracts\r\n(Regulation) Act, 1956 read with Securities Contracts\r\n(Regulation) Rules, 1957. The Act and the Rules provide for\r\nrecognition of the stock exchange and qualifications of members\r\nof the stock exchange.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. From the arguments advanced before us, the following two\r\nquestions arise for our consideration:-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Whether under the Act 1992, a stock broker has to\r\nobtain a certificate of registration from SEBI for each of\r\nthe stock exchanges where he operates or whether a\r\nsingle certificate of registration from SEBI is sufficient\r\nand the same would enable him to trade in all other\r\nstock exchanges?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(1)Whether the ad valorem fee to be paid for an initial\r\nperiod of five years will recur with every such\r\nregistration?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">42. The High Court, in our view, appears to be influenced by\r\nthe expression ‘a certificate of registration’ referred to under\r\nSection 12(1) of the Act, 1992 but has failed to notice that the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">expression ‘a certificate’ is not in reference to any number and\r\nit can be considered that the words in the singular shall include\r\nplural as well, and has failed to notice that certificate of\r\nregistration has to be obtained from the Board in accordance\r\nwith the regulations framed in exercise of power under Section\r\n30 of the Act 1992. In this context, the very scheme of rules\r\nframed by the Central Government in exercise of power under\r\nSection 29 and regulations framed by the Board under Section\r\n30 of the Act, 1992 has been completely misplaced which indeed\r\nhas a statutory force. Although the scheme may be in the\r\nnature of subordinate legislation, the same has superior force\r\nand supplements a mechanism/ procedure according to which\r\nthe member (stock broker) of the stock exchange has to obtain\r\ncertificate of registration from the Board and issuance of\r\ncertificate of registration from SEBI remain co-terminus with\r\nthe stock exchange to which the stock broker is a member and\r\nthat being the reason, Reg. 10 read with Schedule III lays down\r\nthe procedure according to which the fees has to be\r\npaid/deposited by the stock broker in obtaining certificate of\r\nregistration from SEBI in reference to the stock exchange and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for its renewal at a later stage for keeping its registration in\r\nforce.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>47. Thus, in our considered view, the conjoint reading of the\r\nexpression “a certificate” as referred to in Section 12(1) of the\r\nAct read with the scheme of Rules, 1992 and Regulations 1992,\r\nleads to an inevitable conclusion that the stock broker not only\r\nhas to obtain a certificate of registration from SEBI for each of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the stock exchange where he operates, at the same time, has to\r\npay ad valorem fee prescribed in terms of Part III annexed to\r\nRegulation 10 of the Regulations, 1992 in reference to each\r\ncertificate of registration from SEBI in terms of the computation\r\nprescribed under Circular dated 28th March, 2002 and fee is to\r\nbe paid as a guiding principle by the stock broker which is in\r\nconformity with the scheme of Regulations 1992.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>48. So far as the emphasis which was made to the expression\r\n‘date of initial registration’ as referred to in Schedule III(I)(1)(c)\r\nis concerned, it is in relation to a certificate of registration which\r\nhas been obtained by the stock broker from SEBI, which in turn\r\nis in relation to the stock exchange of which he is a member.\r\nAfter the expiry of five financial years from the date of initial\r\nregistration, in reference to the stock exchange, the fee has to\r\nbe deposited for the purpose of sixth financial year to keep his\r\nregistration in force.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>49. Insofar as the procedure of charging fees as prescribed\r\nunder Schedule III annexed to Regulation 10 of the Regulations,\r\n1992 is concerned, it has already been examined by this Court, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in B.S.E. Brokers’ Forum, Bombay and Others(supra) and\r\nneeds no further deliberation of this Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n50. During the course of arguments, and for our own\r\nclarification, we put a query to the learned counsel for the\r\nappellant that in consequence of refusal to grant certificate of\r\nregistration to a stock broker in relation to one stock exchange,\r\nwhether this disqualification will give adverse impact on\r\nregistrations granted to the stock broker in other stock\r\nexchanges for the reason that the certificate of registration was\r\ngranted based on membership of different stock exchanges, it\r\nhas been contended by the appellant that certificate of\r\nregistration was granted based on membership of different\r\nstock exchanges, and the applicant was to be admitted as\r\nmember of different stock exchanges as per their own bye-laws,\r\nrules and regulations. However, in the case where stock broker\r\nis declared defaulter or disqualified to continue as a stock\r\nbroker in reference to one of the stock exchanges, in terms of\r\nSEBI Circular SEBI/MIRSD/Master Cir-04/2010 dated 17th\r\nMarch, 2010, it has been notified that such stock exchange\r\nshall immediately inform all other stock exchange(s) the details </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the defaulter member such as name of the member, the\r\nnames of the proprietors/partners/ promoters/dominant\r\nshareholders, as applicable. This may be a mechanism\r\naccording to which if the stock broker who is a member of the\r\nstock exchange commits default, or on being disqualified to\r\ncontinue as a member, consequential actions could be taken\r\nagainst him pursuant to the circular to which a reference has\r\nbeen made. However, this is not a question to be examined by\r\nthis Court in the instant proceedings.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n51. Consequently, the appeal deserves to succeed and is\r\naccordingly allowed and the judgment and order passed by the\r\nDivision Bench of the High Court is hereby quashed and set\r\naside. No costs.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>52. Pending application(s), if any, shall stand disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ad218f0cf93735a9c6810d99fecd3a72.jpeg', '906c2a514a9ff5af9f370e4cfafd9664.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-15', 1, '', '', '2022-10-14 15:14:47', '2022-10-15 06:23:35');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2300, 'jcYPNcWA1OnAsTgzfsjt5n1FA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bulk allotment of lands in favour of house building co-operative societies by BDA is valid and the society can seek permanent injunction on the basis of such bulk allotment. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Telecon Employees Co-Operative Housing Society Limited Vs D Ramdas Through Lrs and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R.F.A. 964 of 2006 decided on 30 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V. Srishananda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Brief facts of the case are as under:\r\nPlaintiff filed a suit seeking judgment and decree of\r\npermanent injunction restraining the defendants from\r\ninterfering with the peaceful possession and enjoyment of\r\nthe landed property comprising of old Survey No.130 of\r\nKempapura Agrahara village, Bengaluru North Taluk,\r\nwherein sites are formed partly bounded. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Plaintiff claim that it is a House Building Cooperative Society registered under the provisions of\r\nSection 7 of the Karnataka Co-operative Societies Act <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1959, with an intention to cater to the needs of its\r\nmembers, who are employees of Telecom Department of\r\nthe Central Government. Plaintiff applied to Bengaluru\r\nDevelopment Authority [hereinafter referred to as the\r\n\"BDA\" for short] for allotment of sites to its employees.\r\nOut of the acquired land, the Plaintiff Society is entitled to\r\nform a lay out and allot the individual sites to its members\r\nunder the prevailing Twenty Point program of the Union\r\nGovernment in the year 1980.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. This Court perused materials on record. On\r\nsuch perusal, following points would arise for\r\nconsideration:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Whether the plaintiff society has made out a case\r\nthat they are in lawful possession of the suit property?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(ii) Whether the plaintiff makes out a case that there\r\nwas an illegal interference by the respondents who are\r\ndefendants in the court below?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iii) Whether the impugned judgment suffers from\r\nlegal infirmity and thus calls for interference?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iv) What order? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. On bare perusal of the above provision, it is\r\ncrystal clear that the Act came to be amended with\r\nretrospective operation from 20.12.1975.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. Therefore, the ground on which the Trial Court\r\ndoubted the possession of plaintiff about the society by\r\nvirtue of the sale deed executed by the BDA, in pursuance\r\nof its resolution dated 3.7.1987 is to be held as incorrect.\r\nIn other words, the sale deed executed by the BDA in\r\nfavour of the Society is to be held as valid.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. When the BDA having become the owner of the\r\nentire extent of the land in Survey No.130 which is the\r\nsubject matter of the suit, had the power to make a bulk\r\nallotment in favour of the Plaintiff Society. In view of the\r\nspecific amendment made to the legislature of the BDA Act\r\nas referred to supra and the said amendment having been\r\ngiven effect to and from 20.12.1975, the argument put\r\nforth on behalf of the defendant that bulk allotment by\r\nBDA in favour of the society being bad in law, plaintiff\'s\r\npossession is illegal and cannot be countenanced in law.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34. There cannot be any dispute as to the\r\nPrinciples of law as to the aforesaid decision before\r\namendment to the BDA Act as referred to supra. However,\r\nin view of amended Section 38 of the BDA Act, the\r\nprinciples of law enunciated and relied on by the learned <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">counsel for the respondents cannot be countenanced in\r\nlaw.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">35. In view of the above discussion, this court is of\r\nthe considered opinion that the plaintiffs having become\r\nthe owner of the land by virtue of the sale deed executed\r\nby the BDA and put in possession of the suit property.\r\nTherefore, their possession will have to be considered as\r\nlawful possession. Therefore, the order passed by the\r\nlearned Trial Judge holding that possession of the property\r\nby the plaintiff cannot be held as lawful possession, thus\r\nrequires interference by this court in this appeal.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>41. In the case on hand, since the Bengaluru\r\nDevelopment Authority Act has been amended by inserting\r\nSection 38(B) of the Act making it applicable on and from\r\n20.12.1975, the intention of the legislature is clear that\r\nthe amendment came to be enacted only with an intention\r\nto regularise the bulk allotment of the land to the Housing\r\nSociety. The Section commences with non-obstante clause\r\nmakes the intention of the legislature clear in giving effect\r\nto the resolutions passed by the Bengaluru Development\r\nAuthority in making a bulk allotment of the land in favour\r\nof the Co-operative Society for the purpose of catering to\r\nthe needs of its members.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">42. Therefore, the bulk allotment of land made by\r\nthe Bengaluru Development Authority to the extent of 25\r\nacres in favour of the Plaintiff Society and plaintiff formed </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">layout therein after making payment of necessary fees in\r\nfavour of the Plaintiff Society is thus valid and cannot be\r\nfound fault with.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">43. In view of the foregoing discussion as to the\r\neffect of enacting Section 38(B) of the Bengaluru\r\nDevelopment Authority Act referred to supra, the finding\r\nrecorded by the Trial Court that plaintiff is not in lawful\r\npossession of the property cannot be countenanced in law\r\nand therefore, needs to be set aside. Consequently, the\r\nPlaintiff Society is held to be in lawful possession of the\r\nsuit property. The rights if any possessed by the individual\r\nsite owners who have purchased the land from the Power\r\nof Attorney of the original holder namely Ramdas have all\r\nmerged into the acquisition and therefore, their possession\r\nif any cannot be held as lawful possession. Interference to\r\nsuit property is established by plaintiff by placing\r\nnecessary material evidence on record. Therefore, suit of\r\nthe Plaintiff Society needs to be decreed.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The appeal is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8edc10aedf6e5063f06947dfd3488925.JPG', 'bbc8b4ccb49bf87f70031069ba4a77bd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-15', 1, '', '', '2022-10-14 16:16:27', '2022-10-15 03:19:34'),
(2302, 'TwWL5g6eNaNJFIjuMO4TfKxtX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land Acquisition Act, 1894. Taking possession of land invoking Section 17 without tendering and paying eighty per cent  of the estimated compensation cannot be considered as legal and the vesting is not absolute. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/s Delhi Airtech Services Pvt Ltd and another Vs State of U.P and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 24 of 2009 decided on 14 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Abdul Nazeer, Justice A.S. Bopanna and Justice V. Ramasubramanian.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. This appeal has a chequered history. The appeal was heard by a Bench consisting of two Hon’ble Judges (Justice A.K. Ganguly and Justice Swatanter Kumar) and was decided by the Judgment dated 18.08.2011 with divergent opinion. In the process, after consideration, Hon’ble Justice A.K. Ganguly arrived at the conclusion that taking over possession of the land without complying the requirement under Section 17(3A) of the Land Acquisition Act, 1894 (for short ‘Act, 1894’) is clearly illegal and in violation of the statutory provision which automatically violates the constitutional guarantee under Article 300A of the Constitution. However, on taking note that the land had been utilised and developed by the beneficiary of the acquisition, had allowed the retention of the land by directing to pass an award by construing the date of filing the writ petition i.e. 01.03.2006 as the date of Section 4 notification to reckon the market value as against the actual date of notification. Hence allowed the appeal in those terms.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. On the other hand, Hon’ble Justice Swatanter Kumar, however, disagreed with the said conclusion and for the separate reasons assigned by the learned Judge, arrived at the conclusion that Section 11A of Act, 1894 has no application to acquisition under Section 17 of Act, 1894. It was further held that the default in complying with Section 17(3A) of Act, 1894 does not invalidate or vitiate the entire acquisition proceedings. The learned Judge while deciding so had however misconstrued that 80% of the estimated value in terms of sub­section (3A) of Section 17 had been paid to the land loser and in that context held that the interest provided in terms of Section 34 will be payable. In that view, the learned Judge ordered dismissal of the appeal in terms of the directions issued</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">8. In the light of the contentions urged, the following questions arise for our consideration.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">a. Is the requirement to tender payment of 80% of the estimated compensation as contemplated under sub­section(3A) to Section 17 of Act, 1894, mandatory to ensure absolute vesting of the notified land.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">b. Whether the requirement to pass the award within the time frame contemplated under Section 11A applicable to the acquisition notified under Section 17 of Act, 1894.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">c. Can the case in Satendra Prasad Jain (supra) be considered as a decision laying down ratio decidendi on the above questions?</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">14. Hence, insofar as payment of compensation for the acquired land even if it is acquired under Section 17 of Act, 1894, it is evident that an award as contemplated under Section 11 of Act, 1894 is required to be passed so as to determine the compensation payable. Since sub­section (3A) to Section 17 mandates payment of 80% of the estimated compensation, such amount paid would get included in the amount to be determined and offered through the award. In that context it is clear that Section 17(4) contemplates, that the declaration is to be made under Section 6 even when an urgency provision is invoked and an award under Section 11 is to be passed to determine the compensation. </b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">17. Therefore, we are of the considered view that Section 11A though applicable to the cases of acquisition initiated under Section 17(1) of Act, 1894 the consequence of it will not affect the case where the land has absolutely vested on compliance of sub­section (3A) to Section 17 of Act, 1894 and 80% of estimated compensation is tendered and paid. Hence, when there is a challenge by the land loser, each case will have to be considered on its own merits to determine whether the pre­requisite condition to tender and pay as contemplated under sub­section (3A) is made before possession is taken. If in the case concerned the mandatory prerequisite is not complied, such acquisition will loose its character as being under Section 17 and if the award is not passed within two years from the date of the declaration, it will lapse and not otherwise. The benefit of said provision is available only to be invoked by the land loser and cannot be invoked by the acquiring authority to claim lapse by pointing to noncompliance since the ‘vice’ of non­compliance cannot be permitted to be converted into a ‘virtue’. </b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">21. In the above background it is noted that in the instant acquisition from which this case arises, an extent in al measuring 63.540 acres (101­15­17, 5/6 Bighas) was acquired through the declaration under Section 6 of Act, 1894 for which a sum of Rs. 7,48,67,857.73 being 80% is stated to have been deposited by Respondent No.2 – Beneficiary, with Respondent No.1 and the balance amount is also deposited on 21.12.2002 so as to enable the collector to enter into an agreement with the landowners and pay compensation. Insofar as the extent of land belonging to the appellant, it is stated by Respondent No.1 that a letter dated 01.01.2003 was issued calling upon the appellant to come forward and execute an agreement. Thereafter there is no effort to tender and pay 80% of the estimated compensation or to pass an award, which prompted the appellant to file the writ petition before the High Court.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">23. In the normal circumstance, the acquisition would lapse insofar as the appellant’s land in view of our conclusion on the legal aspect. However, in the fact situation, the relief is required to be moulded. This is for the reason that the land belonging to the appellant is not a stand­alone extent. As noted, the acquisition was for a planned industrial layout and the total extent acquired and possession taken was 101­15­ 17, 5/6 bighas of which, the land belonging to the appellant is only 2­06­1/3­0 bighas. In the planned layout, the land has been utilized for various purposes and amenities. A ‘Mandi’ has been constructed over a larger extent of land of which the smaller extent of land belonging to the appellant also forms a part. Hence reversion of the land does not arise. Further, the course as suggested in Laxmi Devi (supra) to issue a fresh notification also would not be appropriate, since the very scheme of acquisition and determination of compensation under the old regime has undergone a sea change. As such it would be unjust not only to the state exchequer but also the other land losers under the same notification if the present prevailing process is applied in determining the compensation. Further, though after being nudged by the High Court, the award in any event was passed on 09.06.2008 under the old regime which is now to be substituted with adequate compensation.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">24. On weighing all aspects of the matter, we deem it appropriate that it will serve the ends of justice to direct the respondents to determine the market value insofar as the appellant’s land is concerned by reckoning the relevant date as 09.06.2008 (i.e. the date on which the award was ultimately passed), by applying the yardstick under Act, 1894. It is made clear that only the market value be determined as on that date but for awarding the statutory benefits, it shall be calculated from the date of the original notification since admittedly the appellant has been dispossessed on 04.02.2003 pursuant to the notification dated 17.04.2002. Further, from the date on which the fresh award is passed pursuant to this judgment, the appellant would get the cause of action for seeking reference if dissatisfied with the quantum of compensation awarded. It is made clear that the determination of compensation, in this case, shall not give rise to any right in favour of any other land loser whose land was acquired under the same notification, to seek for redetermination of compensation where the same has already attained finality.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">25. The decision in this case based on the principle of law settled herein, if it arises for consideration in any other case under Act, 1894 or any other enactment relating to land acquisition containing pari materia provisions shall be applied only prospectively and cases which have attained finality shall not be reopened. </b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">26. In the result, we pass the following order:</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">(i) The provision contained in Section 11A of Act, 1894 shall be applicable to cases in which the acquiring authority has not complied with the requirement of sub­section (3A) to Section 17 of Act, 1894 by tendering and paying eighty per centum of the estimated compensation before taking possession since possession in such cases cannot be considered to be taken in accordance with law and the vesting is not absolute.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">(ii) If the requirement is complied and possession is taken after tendering and paying eighty per centum, though there is need to pass an award and pay the balance compensation within a reasonable time, the rigour of Section 11A of Act, 1894 will not apply so as to render the entire proceedings for acquisition to lapse in the context of absolute vesting. The right of land loser in such case is to enforce passing of the award and recover the compensation.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">(iii) In the instant case though Section 11A of Act, 1894 has become applicable, in the changed circumstance we deem it proper to mould the relief instead of holding the acquisition to have lapsed. Hence for the reasons stated above, we direct as follows:</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">(a) The respondents shall construe 09.06.2008 as the relevant date and determine the market value prevailing as on that date applying the yardstick under Act, 1894 in respect of the acquired land</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">(d) The compensation determined in this case shall not give the cause of action to any other land loser whose land is acquired under the same notification to seek re­determination of compensation.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">(e) The appellant shall be entitled to the cost incurred in these proceedings.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>27. The appeal is disposed of accordingly. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">28. Pending application, if any, stands disposed of.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'dd69ccbefcc39e3d700a68982243ae58.jpeg', '672715a9b0c9bec5877db862192a6038.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-18', 1, '', '', '2022-10-17 13:09:04', '2022-10-18 05:48:48'),
(2308, 'v9gtDlnxLYW0zmfQciCvvoMyB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land Acquisition Act, 1894. It is not safe to determine the compensation relying upon those sale deeds which are nearer to Section 4 notification. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Radhey Sham Vs The State of Haryana and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 7391 of 2022 decided on 17 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice C.T. Ravikumar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved and dissatisfied with the impugned common\r\njudgment and order dated 04.03.2022 passed by the High Court of\r\nPunjab & Haryana at Chandigarh in R.F.A. No. 2016/2021 and other\r\nallied First Appeals, by which the High Court has allowed the said First\r\nAppeals preferred by the respondents herein – State of Haryana and\r\nothers and has quashed and set aside the judgment and order dated\r\n31.05.2014 passed by the Reference Court and has restored the awards\r\ndeclared by the Land Acquisition Collector determining the amount of\r\ncompensation with respect to the lands acquired at village Hansi and\r\nDhana, District Hisar, Haryana, the original landowners have preferred\r\nthe present appeals.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts leading to the present appeals in a nutshell are as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>That the land situated at village Hansi and Dhana, District Hisar,\r\nHaryana admeasuring 229.13 acres and 20.77 acres respectively came\r\nto be acquired under the provisions of the Land Acquisition Act, 1894\r\n(hereinafter referred to as the ‘Act 1894’) for development of the\r\nresidential and commercial sectors – Sectors 3, 5 & 6 at Hansi. A\r\ncommon notification under Section 4 of the Act 1894 was issued on\r\n29.08.2005. That declaration under Section 6 of the Act 1894 was\r\nissued on 29.08.2006. The land Acquisition Collector declared the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">award under Section 11 of the Act 1894 on 3.8.2007, vide award Nos. 1\r\n& 2 for both villages, Hansi & Dhana, by adopting the belting\r\nmethod/system and assessed the market value of the land abutting the\r\nG.T. Road (Delhi-Hisar Road) at Rs. 12,00,000/- per acre up to the depth\r\nof 2 acres and for the land abutting the Jind By-pass Road, at Rs.\r\n10,00,000/- per acre up to the depth of 2 acres and for the remaining\r\nland, the market value was assessed at Rs. 8,00,000/- per acre.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.5 That thereafter on remand, the Reference Court assessed the\r\namount of compensation at Rs. 750/- per square yard. The common\r\njudgment and order passed by the Reference Court on remand\r\nassessing the compensation/market value at Rs. 750/- per square yard\r\nwas the subject matter before the High Court at the instance of the\r\nlandowners as well as the State. By the impugned common judgment\r\nand order, the High Court has dismissed the appeals preferred by the\r\nlandowners and allowed the appeals preferred by the State and has\r\nrestored the award passed by the Land Acquisition Collector. By the\r\nimpugned common judgment and order passed by the High Court, the\r\namount of compensation is reduced between Rs. 166/- per square yard\r\nto Rs. 200/- per square yard.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Having heard learned counsel for the respective parties at length\r\nand considering the facts and circumstances narrated hereinabove, we\r\nare of the firm opinion that the landowners shall be entitled to the\r\ncompensation considering the market value of the acquired land at least\r\nat Rs. 1,000/- per square yard as per the earlier judgment and order\r\ndated 31.05.2014 passed by the Reference Court. It is required to be\r\nnoted and it is not in dispute that so far as the State Government is\r\nconcerned, the State did not challenge the common judgment and order\r\ndated 31.05.2014 passed by the Reference Court assessing the market\r\nvalue of the acquired land at Rs. 1,000/- per square yard and it was the\r\nlandowners who preferred appeals before the High Court for\r\nenhancement of the amount of compensation. It is also required to be\r\nnoted that non-filing of the appeals by the State against the common\r\njudgment and order dated 31.05.2014 was also taken note of by this\r\nCourt while disposing of the appeals vide common judgment and order\r\ndated 16.05.2018</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Even otherwise, on a fair reading of the judgment and order dated\r\n16.05.2018 passed by this Court and the subsequent order dated\r\n28.08.2019 passed by the High Court, the matter was remanded to the\r\nReference Court to consider the sale deeds for the purpose of\r\nenhancement of the amount of compensation, while considering the sale\r\ndeeds relied upon by the landowners. In any case, once the judgment\r\nand order passed by the Reference Court dated 31.05.2014 determining\r\nthe compensation at Rs. 1,000/- per square yard attained finality so far\r\nas the State is concerned, the landowners shall be entitled to the\r\ncompensation at least at Rs. 1,000/- per square yard.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Now so far as the submission on behalf of the original landowners\r\nto enhance the amount of compensation beyond Rs. 1,000/- per square\r\nyard is concerned, we have gone through and considered the sale\r\ndeeds relied upon on behalf of the landowners. Most of the sale deeds\r\nrelied upon by the landowners are much prior to the date of Section 4\r\nnotification (ranging between 1992 to 1994). Some of the sale deeds\r\nare post Section 4 notification. Only three to four sale deeds are nearer\r\nto Section 4 notification. However, all those sale deeds are with respect\r\nto small area of lands and even the price is also at variance. Therefore,\r\nit is not safe to determine the compensation relying upon those sale\r\ndeeds which are nearer to Section 4 notification.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. In view of the above and for the reasons state above, we are of the\r\nfirm opinion that the claimants/landowners shall be entitled to\r\ncompensation of the acquired land at least at Rs. 1,000/- per square\r\nyard. It is reported that the State has already deposited/paid the\r\ncompensation at the rate of Rs. 1,000/- per square yard which is now\r\nsought to be recovered pursuant to the impugned common judgment\r\nand order passed by the High Court restoring the awards passed by the\r\nLand Acquisition Collector determining the compensation/market value\r\nranging from Rs. 166/- per square yard to Rs. 200/- per square yard.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. In view of the above and for the reasons stated above, all these\r\nappeals succeed in part. The impugned common judgment and order\r\ndated 4.3.2022 restoring the awards passed by the Land Acquisition\r\nCollector dated 3.8.2007 is hereby quashed and set aside. It is held that\r\nthe original landowners/claimants shall be entitled to the compensation\r\nconsidering the market value of the acquired land at Rs. 1,000/- per\r\nsquare yard.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. All these appeals are allowed to the aforesaid extent. No costs.</b></span></p>', 'dcaf9405aea1ee408e8ef662a082570b.jpeg', 'ff678e81709cacec56943a5336f33e33.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-21', 1, '', '', '2022-10-18 13:09:24', '2022-10-21 08:26:44'),
(2304, 'UZ9NoJpaTHwvIIKfgnnQTyWBw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'NDPS Act. Owner of logistic company cannot be prosecuted if he was not aware of transportation of contraband in his vehicle. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sunil Kumar Koushik and others Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 201054 of 2022 decided on 21 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P.N. Desai.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">02. The brief case of the prosecution is that on\r\n28.09.2021, Sri.M.H.Padasalagi, Excise Inspector, Indi SubDivision, received a credible information that some person by\r\nname Jasavanthkumar transporting poppy straw powder\r\nthrough Pandarapur via Shirdoan road by keeping it behind\r\nthe driver seat in Eicher Company vehicle No.HR-38-T-5583\r\nin fertilizer bags. Immediately, he recorded the statement,\r\nreduced into writing and requested panchas and Gazetted\r\nofficer to the raid. Accordingly, they went to the said place\r\nand all the materials to raid have been collected, search\r\nwarrant was prepared. Thereafter, at about 10:20 hours one\r\nEicher Company container came. As per information received,\r\nit was stopped and enquired the name of the driver. He told\r\nhis name as Jashwantakumar. On searching the container,\r\nthey found fertilizer bag. Then they opened the said bag.\r\nThey found NDPS articles and when enquired regarding\r\nlicence, he does not possess any licence to trnasport the\r\nsame and he intent to sell the same in Bangalore. He told\r\nthat the vehicle belongs to NITCO Logistics Pvt. Limited. The\r\nrespondent-Police weighed the seized materials and it is\r\nfound that it is about 500 grams of poppy straw powder in 10 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">packets. The accused were arrested and said powder and\r\nvehicle were seized. The police registered the complaint and\r\nafter completing investigation, they have filed charge sheet\r\nagainst the driver of the said vehicle and also accused Nos.2\r\nand 3.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>07. I have perused the FIR, complaint, charge sheet,\r\nstatements of the complainant and accused. The seizure of\r\npanchanama clearly shows that when the said vehicle was\r\nintercepted as per the information received by the police\r\nofficials and checked, the accused No.1 was a driver and he\r\ninformed his name and behind the driver’s seat in the cabin\r\nthere was a bag and contraband powder. Then, he was\r\nenquired regarding the materials in the container and he has\r\nnot given any information. However, he stated that the\r\nvehicle belongs to NITCO Logistics Pvt. Ltd., and the officials\r\nor the company does not know that he is transporting the\r\nsaid contraband powder. Even the owners of \"goods\" who\r\nloaded goods is also not know about any such articles\r\ntransported by him. Thereafter, police have collected the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">invoice and again as per the panchanama dated 06.12.2021\r\nthe said container door was break opened, as it was locked\r\nand it can be opened only at the place of unloading by giving\r\none time lock password. The Investigating Officer found that\r\nas per the invoice carried by the driver, there were goods\r\nsuch as blankets, uniform, radiators, pillow and other\r\nmaterials as shown in the panchanama and no contraband\r\nsubstance was found in the said container. I have also\r\nperused the statements of the witnesses. There is no material\r\nagainst these petitioners that they have committed offences\r\nas alleged against them.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>09. If these Sections are reads together, there is\r\nnothing to show that these petitioners are either knowing the\r\nowners of the said logistic or they have knowingly permitted\r\ndriver to transport such contraband substance. When the\r\naccused No.1 - driver himself stated that owners of the\r\nvehicle or owners of the goods were not knowing that he is\r\ntransporting the said contraband substance, the question of\r\nprosecuting these petitioners does not arise at all.\r\nAdmittedly, they have stated that the NITCO Logistics\r\nCompany is a reputed logistic and working since last five\r\ndecades. They have stated that procedure of loading and\r\nunloading is that once a goods are loaded and invoice is\r\ngiven to the driver, the lock will be opened at the place of\r\nunloading by giving one time lock password and nobody can\r\nopen the said container and on search no contraband was\r\nfound in the container. It is evident from the statements of\r\nthe witnesses, charge sheet materials and in view of the\r\ncontents of the panchanama, which shows that neither\r\nowners nor officials and owner of NITCO Logistic Company\r\nwere knowing about accused No.1 transporting contraband <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">substances. Therefore, prosecuting them under above\r\ncharged offences, is bad in law.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. Therefore, in view of the principles stated in the\r\nabove decisions, charge sheet materials, allegations against\r\nthese petitioners, the statement of the driver, the contents of\r\nthe panchanama and Sections referred above, it is evident <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that these petitioners cannot be prosecuted as they have\r\nnothing to do with the said alleged offences. Therefore,\r\ncontinuing the proceedings against them is nothing but abuse\r\nof process of law and Court. Hence, the said proceedings are\r\nliable to be quashed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The petition filed under Section 482 of Cr.P.C. is\r\nallowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2be2309cf7838b558bcf6887eb920d95.jpeg', '6c18259596a35adb75c3b8f1a0ecc6d0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-22', 1, '', '', '2022-10-17 15:20:39', '2022-10-22 03:22:05');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2305, 'gT4K6EBZvciSqyFu8fa6s6DM3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque bounce case. Payment of interim compensation applies only in respect of offenses committed after Section 143(A) of N.I.Act came into force in the statutory book. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shashikumar Vs Rajkumar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 200994 of 2022 decided on 23 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P.N. Desai.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Learned counsel for the petitioner argued that\r\nrespondent herein is the complainant and he has filed a\r\ncomplaint under Section 138 of Negotiable Instruments Act,\r\n1881, (for short hereinafter referred to as \'N.I.Act\') against\r\nthis petitioner before the Trial Court on 15.05.2018.\r\nThereafter, the respondent/complainant also filed an\r\napplication on 10.01.2019 under Section 143(A) of N.I. Act\r\nseeking to grant interim compensation.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Learned counsel for the petitioner argued that\r\namendment to Section 143(A) of the N.I. Act, is not\r\napplicable to this case as the said amendment came into\r\neffect on 01.09.2018. The complaint was filed on 15.05.2018\r\ni.e., prior to coming into force of the said act. Therefore, the\r\nlearned counsel for the petitioner argued that the learned\r\nSessions judge without taking into consideration said aspect\r\nheld that the application filed under Section 143(A) of N.I.\r\nAct, seeking interim compensation was filed on 10.01.2019\r\nwhich is subsequent to the Amendment Act, 2018 which\r\ncame into force on 01.09.2018 and erred in rejecting the\r\npetition. Therefore, he prayed to allow the petition.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The Hon’ble Supreme Court in the case of\r\nG.J.Raja Vs. Tejraj Surana reported in 2019 (19) SCC\r\n469 considered the scheme of Section 143(A) of N.I.Act and\r\nat paragraph No.23 it is observed that the said provision is\r\nprospective in nature and it is to be applied only in respect of\r\noffense under Section 138 of N.I.Act stated to have been\r\ncommitted after the provision of Section 143(A) of N.I.Act,\r\ncame into force in the statutory book. Further the Hon’ble\r\nSupreme Court referring to its earlier decision in the case of\r\nSurinder Singh Deswal Vs. Virender Gandhi – (2019)\r\n11 SCC 341 and at paragraph Nos.22 observed with regard\r\nto distinction between Section 148 and Section 143-A of the\r\nN.I.Act and held that Section 148 depends upon the existing\r\nmachinery and principles already in existence and does not\r\ncreate any fresh disability of the nature similar to that\r\ncreated by Section 143-A of the Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. In this case, admittedly according to the\r\ncomplainant, he has filed the complaint on 15.05.2018,\r\nbefore the Amendment Act, 2018 came into force with effect <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">from 01.09.2018. Therefore, in view of the principles stated\r\nin the case of G.J.Raja Vs. Tejraj Surana1\r\nreferred supra,\r\nthe order of the learned Sessions Judge and the order passed\r\nby the learned JMFC is also not tenable.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>ORDER</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(i) The revision petition is allowed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ca41cdcee670a2d2ff2ce657127e300c.jpeg', 'a84f1bf40c2f2233e20076663005c9b1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-20', 1, '', '', '2022-10-17 15:27:03', '2022-10-20 09:46:03'),
(2306, 'KGqfPftJkB8oyevEyMmAlhDr4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque bounce case. Complainant is not expected to appear on every date of hearing and the Court cannot dismiss the complaint for default on that ground. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nagaraj Vs Ishwar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 200033 of 2022 decided on 30 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P.N. Desai.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The brief case which has given rise for\r\nconsideration of this appeal is that:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The appellant was a complainant before the Trial Court\r\nwho filed a private complaint against the\r\nrespondent/accused for offences under Section 138 of\r\nNegotiable Instruments Act, 1881 (for short hereinafter\r\nreferred to as ‘N.I Act’). After recording the sworn\r\nstatement, the criminal case number was given as\r\nC.C.No.2735/2013, but the said case came to be dismissed\r\nfor non-prosecution, as the complainant has not appeared\r\nbefore the Court. Being aggrieved by the impugned order,\r\nthis appeal is filed. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">11. On perusing the said Section, it is evident that\r\nthe Court has to exercise its discretion judiciously. The\r\nproviso clearly indicates that when the Court is of the opinion\r\nthat the personal attendance of the complainant is not\r\nnecessary, the Magistrate may be dispense with attendance\r\nof complainant and proceed with the case. Here complainant\r\nis represented by an advocate. The stage of the case is for\r\nrecording of plea. The complainant presence was not\r\nnecessary and recording plea is by the Court. It is the task to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be performed by the Court for progress of case. Therefore,\r\nwhen the presence of complainant on that day is not\r\nnecessary, the learned JMFC ought not to have dismissed the\r\ncomplaint for non-appearance of the complainant. The case\r\nis not posted for hearing. For non-appearance of the\r\ncomplainant on each and every date of hearing, an order of\r\nacquittal cannot be passed in every case. The Court has to\r\nsee the stage of the case and the previous appearance of the\r\naccused and complainant and how many years the complaint\r\nis pending, what is the nature of case before passing any\r\nsuch dismissal order. Simply to dispose of the cases or get\r\nrid of the case, the complaint cannot be dismissed when\r\nthere no necessity of presence of complainant.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. Here the complainant’s case is under Section 138\r\nof N.I Act. The amount of cheque involved is stated to be\r\nRs.4,50,000/-. The sworn statement of complainant is given\r\nand he has produced documents in support of his case.\r\nTherefore, keeping in mind, the exercise of power under\r\nappeal and the peculiar facts and circumstance of this case,\r\nand in view of Section 256 Cr.P.C., in my considered view\r\nthe appeal deserves to be allowed. Simply because the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">drafting of appeal memo is lacking some ingredients is not a\r\nground to dismiss the appeal. Keeping in mind the purpose\r\nfor which the Courts are meant and making justice oriented\r\napproach in my considered view, the appeal deserves to be\r\nallowed.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\ni) The appeal is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3f7dd8334088f5995f20099fbc15fc93.jpeg', '1a4b2d8ebcd120da3f46e3ad8e2d29e0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-18', 1, '', '', '2022-10-17 15:30:47', '2022-10-18 03:21:27'),
(2307, 'qKyhQel9ne6GEs1xSrWepsSIz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Promissory estoppel. Where the change of policy is in the larger public interest, the State cannot be prevented from withdrawing an incentive which it had granted through an earlier notification. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Hero Motocorp Ltd Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 7405 of 2022 decided on 17 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B.R. Gavai and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. These appeals raise an important question of law as to\r\nwhether the Union of India can be directed to adhere to the\r\nrepresentation as made by it in the Office Memorandum\r\ndated 7th January 2003 (hereinafter referred to as “the said\r\nO.M. of 2003”) even after the enactment of the Central <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Goods and Services Tax Act, 2017 (hereinafter referred to as\r\n“the CGST Act”</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The factual scenario leading to the filing of the present\r\nappeals lies in a narrow compass, which is as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n6.1 The Government of India had issued the said O.M. of\r\n2003 based on the statement made by the Hon’ble Prime\r\nMinister, during his visit to Uttranchal (now Uttarakhand)\r\nin March 2002. The said O.M. of 2003 provided that, for\r\nthe States of Uttaranchal and Himachal Pradesh, new\r\nindustrial units and existing industrial units on their <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">substantial expansion would be entitled to exemption of\r\n100% outright excise duty for 10 years from the date of\r\ncommencement of commercial production. The said O.M. of\r\n2003 also provided that there shall be 100% income tax\r\nexemption for such units initially for five years and\r\nthereafter 30% for companies and 25% for other companies\r\nfor a further period of five years, from the date of\r\ncommencement of commercial production. Various other\r\nincentives were also provided vide the said O.M. of 2003.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6.10 Being aggrieved by the decision of the Central\r\nGovernment in restricting the refund only to 58% of CGST\r\nand 29% of IGST and not providing 100% refund of CGST,\r\nthe appellant-Hero Motocorp Ltd. approached the Delhi\r\nHigh Court by way of writ petition being Writ Petition (Civil)\r\nNo. 505 of 2020 and the appellant-Sun Pharma\r\nLaboratories Limited approached the Sikkim High Court by\r\nway of writ petition being Writ Petition (Civil) No.47 of 2018.\r\nThe Delhi High Court, vide its judgment and order dated 2nd\r\nMarch 2020, and the Sikkim High Court, vide its judgment\r\nand order dated 5th February 2021, have dismissed the said\r\nwrit petitions.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. It is not in dispute that the Union of India had framed\r\na policy vide the said O.M. of 2003. It is also not in dispute\r\nthat, vide the said policy, the Central Government had\r\nprovided that 100% exemption would be granted to the\r\nindustrial units from payment of outright excise duty for 10\r\nyears from the date on which such industrial units\r\ncommence their commercial production. The incentives\r\napplied to the new industrial units as well as existing\r\nindustrial units going for substantial expansion. As such, it\r\nis clear that, vide the said O.M. of 2003, an unequivocal <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">promise was given to the entities that, in the event they\r\nestablish a new industrial unit or go for a substantial\r\nexpansion of their existing industrial units in the States of\r\nUttarakhand and Himachal Pradesh, they would be entitled\r\nto 100% tax exemption.\r\n27. It is to be noted that, subsequently, an important\r\ndevelopment took place. By the 101st Amendment Act, a sea\r\nchange in the earlier taxation regime occurred. A uniform\r\ntax structure throughout the country has been adopted.\r\nThe GST Council has been constituted, which is empowered\r\nto make recommendations to the Union and the States with\r\nregard to GST. The Union and all the States have become\r\ncommon partners in levy of various taxes. To give effect to\r\nthe 101st Amendment Act, the CGST Act has been enacted.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>58. We are, therefore, of the considered view that even on\r\nthe ground of change of policy, which is in public interest or\r\nin view of the change in the statutory regime itself on\r\naccount of the GST Act being introduced as in the instant\r\ncase, it will not be correct to hold the Union bound by the\r\nrepresentation made by it, i.e. by the said O.M. of 2003.\r\nFurther, this would be contrary to the statutory provisions\r\nas enacted under Section 174(2)(c) of the CGST Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>59. There is another reason which, in our view, could\r\ndisentitle the relief as was claimed by the appellants before\r\nthe High Courts. The appellants, in effect, are seeking a\r\nwrit of mandamus against the Union of India to reimburse <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">100% of CGST for the remainder of the period instead of\r\nonly 58%.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>69. Insofar as the reliance placed by Shri V. Sridharan,\r\nlearned Senior Counsel, on the judgment of this Court in\r\nthe case of Video Electronics Pvt. Ltd. (supra) is\r\nconcerned, the question was as to whether the State was\r\nempowered to grant sales tax exemption to a class of goods.\r\nIt was held that the classification was permissible, provided\r\nthat it was not vitiated by colourable exercise of power or <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">abuse. As such, the said judgment would not be applicable\r\nto the facts of the present case.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>75. It could thus be seen that the GST Council has noticed\r\nthat the Central and State Governments had given various\r\nincentives of Central Excise and Value Added Tax (VAT) and\r\nCentral Sales Tax (CST) so as to encourage investment in\r\nthose States. It also took notice of the fact that such\r\nincentives could not be continued as supplies would need to\r\nbe made on payment of tax to permit flow of tax to the\r\ndestination state. The solution that was suggested was to\r\nprovide for budgetary apportionment in the State and the\r\nCentral budgets for reimbursing the tax paid to those units\r\nwhich enjoyed tax exemption up to a specified period.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>77. It can thus be seen that the Hon’ble Minister from\r\nUttarakhand had stated that the Government of India had\r\ngiven an area-based exemption for 10 years and that such <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">exemptions were to continue up to 2020. She was of the\r\nview that the Centre must reimburse such units for the\r\nCentral taxes as jobs of more than one lakh workers were at\r\nstake. The Hon’ble Minister from Jammu & Kashmir had\r\nalso supported the view of the Hon’ble Minister from\r\nUttarakhand. However, the Chairperson of the GST\r\nCouncil, i.e. the Hon’ble Finance Minister of the Union of\r\nIndia, stated that the Centre would only reimburse the units\r\nto the extent of 58%. He also expressed that the State\r\nwould also need to correspondingly reimburse such units\r\nout of the share of revenue received through devolution.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>78. We, therefore, find that in the deliberations of the GST\r\nCouncil itself, it was observed that the States also need to\r\ncorrespondingly reimburse the industrial units which were\r\nentitled to exemption under any existing incentive scheme,\r\nout of the share of revenue received through devolution,\r\nwhich, as per the Finance Commission, stands at 42%. As\r\na matter of fact, the State of Jammu & Kashmir has issued\r\na notification dated 21st December 2017 thereby resolving to\r\nreimburse the remaining 42% of the CGST of the Union.\r\nThis is limited until the period the Union Scheme is valid.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>72. Though we have held that the appellants’ claim based\r\non promissory estoppel is without substance, we find that\r\nthis is not a case wherein it can be said that the appellants’\r\nclaim is wholly without any substance. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>73. The appellants have established their industrial units\r\nbased on the industrial policy as reflected in the said O.M.\r\nof 2003. The policy of the year 2003, in question, was\r\nbased on the statement made by the Hon’ble Prime Minister\r\nduring his visit to Uttarakhand. As such, the policy was\r\nframed to bring into effect the statement made by the\r\nhighest executive functionary of the country. Relying on the\r\nsaid policy, the appellants have established their units.\r\nThough the appellants may not have a claim in law, we find\r\nthat they do have a legitimate expectation that their claim\r\ndeserves due consideration. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>75. It could thus be seen that the GST Council has noticed\r\nthat the Central and State Governments had given various\r\nincentives of Central Excise and Value Added Tax (VAT) and\r\nCentral Sales Tax (CST) so as to encourage investment in\r\nthose States. It also took notice of the fact that such\r\nincentives could not be continued as supplies would need to\r\nbe made on payment of tax to permit flow of tax to the\r\ndestination state. The solution that was suggested was to\r\nprovide for budgetary apportionment in the State and the\r\nCentral budgets for reimbursing the tax paid to those units\r\nwhich enjoyed tax exemption up to a specified period. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>77. It can thus be seen that the Hon’ble Minister from\r\nUttarakhand had stated that the Government of India had\r\ngiven an area-based exemption for 10 years and that such <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">exemptions were to continue up to 2020. She was of the\r\nview that the Centre must reimburse such units for the\r\nCentral taxes as jobs of more than one lakh workers were at\r\nstake. The Hon’ble Minister from Jammu & Kashmir had\r\nalso supported the view of the Hon’ble Minister from\r\nUttarakhand. However, the Chairperson of the GST\r\nCouncil, i.e. the Hon’ble Finance Minister of the Union of\r\nIndia, stated that the Centre would only reimburse the units\r\nto the extent of 58%. He also expressed that the State\r\nwould also need to correspondingly reimburse such units\r\nout of the share of revenue received through devolution.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>79. It is further to be noted that the GST Council is a\r\nconstitutional body. It has powers to make\r\nrecommendations on wide-ranging issues concerning GST, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">including grant of exemptions from the GST. It also has\r\npower to make recommendations with regard to special\r\nprovisions governing North Eastern and Himalayan States.\r\nTaking into consideration that the units like the appellants\r\nhave been established in the Himalayan and North-Eastern\r\nStates based on the said O.M. of 2003 and that lakhs of\r\npersons are employed in such industries, we are of the view\r\nthat it will be appropriate that such States should also\r\nconsider to correspondingly reimburse such units out of the\r\nshare of revenue received by them through devolution from\r\nthe Central Government. We further find that it will also be\r\nappropriate that the GST Council considers making\r\nappropriate recommendations to the States in that regard.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n80. We, therefore, permit the appellants to make\r\nrepresentations to the respective State Governments as well\r\nas to the GST Council. We also request the State\r\nGovernments and the GST Council to consider such\r\nrepresentations, if made, in accordance with what has been\r\nobserved herein above in an expeditious manner.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>81. In the result, the appeals are dismissed, save and\r\nexcept the observations made in paragraphs 72 to 80\r\nhereinabove.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>82. Pending applications, if any, shall stand disposed of.\r\n83. In the facts and circumstances of the case, there shall\r\nbe no order as to costs.</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '11d47d1525402e031e544422cdc7d611.jpeg', 'b591a457e8e6a9550313c0e4bea636ec.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-18', 1, '', '', '2022-10-17 15:51:46', '2022-10-18 10:30:59'),
(2375, '35Dgeh0DvmbfsMvUcA7m3qAd7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Supreme Court upholds the Employees Pension (Amendment) Scheme 2014 and sets aside the salary limit of Rs 15,000 which was fixed by the High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Employees Provident Fund Organisation and another Vs Sunil Kumar B. and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8143-8144 of 2022 decided on 4 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice Uday Umesh Lalit, Justice Aniruddha Bose and Justice Sudhanshu Dhulia.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. In this judgment, we shall deal with the legality of certain amendments and modifications made by the Central Government to the Employees’ Pension Scheme, 1995 (“1995 Scheme”). Such scheme has been made in pursuance of, inter­alia, Section 6A of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (“the Act”). Such changes, inter­alia, are sought be effected in paragraphs 3, 6, 11, 12 and 14 of the 1995 scheme. The Act originally did not provide for any pension scheme and Section 6A was introduced to the said Act by way of an amendment made in 1995. The amendment of 1995 contemplated formulation of a scheme for employees’ pension and the pension fund was to comprise of deposit of 8.33 per cent of the employers’ contribution made towards provident fund corpus as per the prevailing Statue. Paragraph 11 of the scheme dealt with determination of pensionable salary. At that point of time, maximum pensionable salary was Rs.5000/­ and this sum had been enhanced subsequently to Rs.6500/­. Pensionable salary was raised to Rs.15000/­ by a notification dated 22nd August 2014 [numbered G.S.R. 609 (E)], which was to be effective from 1st September 2014. This notification brought certain other modifications in the scheme mainly restricting its coverage and we shall discuss these modifications later in this judgment.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>30. The employees have argued that under the law, there is no requirement of exercising second option. In this regard, our attention has been drawn to paragraphs 3(1) and 3(2) of the scheme, which requires remittance of a part of contribution of the employer to the provident fund scheme. The employees’ argument is that the obligation is only on the employer to remit the sum from one fund to the other. There is no ceiling limit and the remittance required to be made is of 8.33 per cent of the employee’s pay. But this point also, in our opinion, does not aid the employees. While paragraphs 3 and 6 of the scheme have laid down what the fund would be constituted of and who would be the members of the pension scheme, paragraph 11, which is an integral part of the pension scheme, specifies the criteria for those who become mandatory members and, from among the existing members, who may be permitted to exercise option to remain in the scheme in spite of drawing salary beyond the ceiling limit. It is a fact that those who are covered by paragraph 26(6) of the provident fund scheme automatically enters into the pension scheme as well. But this provision cannot be held to have precluded the Central Government from laying down conditions to remain eligible for the pension scheme and specify wage or salary ceiling for individual employees beyond which the scheme may not operate. We also do not accept the argument that the pension scheme considers employees as a homogenous group and no distinction can be made among different categories of employees based on their monthly salary to determine for whom the scheme shall operate in a particular manner. It is well within the power and authority of the statutory authorities to reasonably classify different sets of employees and categorise them for the nature of benefits they might get from an existing scheme. In fact, the scheme, at its inception was made applicable to those drawing wages upto Rs.5000/­. The provision relating to exercising option was introduced later, in the year 1996.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>36. The other aspect of the controversy involves changing the method of computation of the pensionable salary. We have given the points and counter points articulated by the contesting parties pertaining to this feature of the controversy earlier in this judgment. In our opinion, this change of methodology comes within the power of the Central Government to modify a scheme under Section 7 of the 1952 Act read with item 10 of the Schedule III to the Act as also paragraph 32 of the scheme. This alteration of computation is ancillary to determination of scale of pension alongwith pensionary benefits and paragraph 32 of the pension scheme specifically authorises the Central Government to alter the rate of contribution payable under the Scheme or the scale of any benefit admissible under the scheme. There is a reasonable basis for effecting change in the computation methodology for determining pensionable salary and we do not find any illegality or unconstitutionality in effecting this amendment. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>37. We shall now address the question as to whether the members from an exempted establishment under the 1952 Act would be entitled to the benefits of enrolling in the scheme beyond the ceiling limit. We would point out here that before us no argument has been advanced as regards members of the pension scheme of exempted establishments in terms of paragraph 39 of the said scheme. Thus, in this judgment, we are not addressing the cases of that category of members. We find from Section 17 (A) of the Act that the investment of the provident fund for the trust fund are also to be as per the directions of the Central Government. In quashing the circular dated 31st May 2017, the Delhi High Court has held that the employees of unexempted establishments and exempted establishments form a homogenous group. Section 6A of the Act also envisages coverage of employees of exempted establishments under Section 17(6) of the Act within the pension scheme</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>40. We shall now deal with argument of the appellants that no vested legal right of the employees has been encroached upon by the 2014 amendment. For this purpose, amended paragraph 11(4) needs to be analysed. The said paragraph 11(4) provides for extending the pension coverage in respect of individual employees drawing salary more than Rs. 15000/­ per month. This paragraph however, is subject to two conditions:­ </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i) The first one is that to be eligible for the benefits of extended coverage, the existing members as on 1st September 2014 must contribute at the rate of 1.16 per cent on salary exceeding Rs. 15,000/­ per month. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ii) The second one is that a fresh option should be exercised within a period of six months from the first day of September 2014. The scheme contemplates that those members of the fund who had exercised option to remain in the scheme as per the requirement of proviso to paragraph 11(3) of the scheme, as it stood prior to the 2014 amendment, would be able to give fresh option with the employer if their salary cross the ceiling limit. In respect of that provision, this Court in the Case of R.C. Gupta (supra) had held that the said proviso did not contemplate a cut­off date.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>41. So far as the first condition is concerned, we have expressed our views earlier in this judgment as regards legality of having such a provision. In relation to the second condition, our opinion is that the eligibility for enhancement cannot be restricted to those employees only who had exercised the option to remain in the scheme once their salary went beyond the capping of Rs. 6500/­ per month. As we have already discussed, in case of R.C. Gupta (supra), it has been specifically held that there was no cut­off date in proviso to paragraph 11(3) as it stood before the 2014 amendment. In our opinion, the interpretation given to the proviso to paragraph 11(3) prior to 2014 amendment does not require any reconsideration. We agree with the reasoning of the two­judge Bench of this Court on this point, as expressed in the said judgment. As there was no cut­off date to be contemplated prior to the 2014 amendment, limiting the entitlement of enhanced pension coverage to those employees only who had already exercised an option under Clause 11(3) of the unamended scheme would be contrary to the ratio of the decision of this Court held in the case of R.C. Gupta (supra). We are not holding that no option was required to be exercised as per proviso to paragraph 11(3) of the scheme, as it stood prior to 2014 amendment. As held in the case of R.C. Gupta (supra), there was no time­limit for exercising such option.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>44. We accordingly hold and direct:­</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i) The provisions contained in the notification no. G.S.R. 609(E) dated 22nd August 2014 are legal and valid. So far as present members of the fund are concerned, we have read down certain provisions of the scheme as applicable in their cases and we shall give our findings and directions on these provisions in the subsequent sub­paragraphs. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii) Amendment to the pension scheme brought about by the notification no. G.S.R. 609(E) dated 22nd August 2014 shall apply to the employees of the exempted establishments in the same manner as the employees of the regular establishments. Transfer of funds from the exempted establishments shall be in the manner as we have already directed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iii) The employees who had exercised option under the proviso to paragraph 11(3) of the 1995 scheme and continued to be in service as on 1st September 2014, will be guided by the amended provisions of paragraph 11(4) of the pension scheme. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iv) The members of the scheme, who did not exercise option, as contemplated in the proviso to paragraph 11(3) of the pension scheme (as it was before the 2014 Amendment) would be entitled to exercise option under paragraph 11(4) of the post amendment scheme. Their right to exercise option before 1st September 2014 stands crystalised in the judgment of this Court in the case of R.C. Gupta (supra). The scheme as it stood before 1st September 2014 did not provide for any cutoff date and thus those members shall be entitled to exercise option in terms of paragraph11(4) of the scheme, as it stands at present. Their exercise of option shall be in the nature of joint options covering pre­amended paragraph 11(3) as also the amended paragraph 11(4) of the pension scheme.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(v) The employees who had retired prior to 1st September 2014 without exercising any option under paragraph 11(3) of the pre­amendment scheme have already exited from the membership thereof. They would not be entitled to the benefit of this judgment.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(vi) The employees who have retired before 1st September 2014 upon exercising option under paragraph 11(3) of the 1995 scheme shall be covered by the provisions of the paragraph 11(3) of the pension scheme as it stood prior to the amendment of 2014. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(vii) The requirement of the members to contribute at the rate of 1.16 per cent of their salary to the extent such salary exceeds Rs.15000/­ per month as an additional contribution under the amended scheme is held to be ultra vires the provisions of the 1952 Act. But for the reasons already explained above, we suspend operation of this part of our order for a period of six months. We do so to enable the authorities to make adjustments in the scheme so that the additional contribution can be generated from some other legitimate source within the scope of the Act, which could include enhancing the rate of contribution of the employers. We are not speculating on what steps the authorities will take as it would be for the legislature or the framers of the scheme to make necessary amendment. For the aforesaid period of six months or till such time any amendment is made, whichever is earlier, the employees’ contribution shall be as stop gap measure. The said sum shall be adjustable on the basis of alteration to the scheme that may be made.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(viii) We do not find any flaw in altering the basis for computation of pensionable salary.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>46. Pending application(s), if any, shall also stand disposed of.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>47. There shall be no order as to costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '21a37d6c132215f5c67adf8442d08eb3.jpeg', '687c52091d16ccff48471e9822e34b91.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-07', 1, '', '', '2022-11-06 18:30:48', '2022-11-07 12:26:54');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2310, 'aeJfaSq1x3KpxzUwGyTCLfRnX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'National Calamity Contingent Duty is a surcharge which can be levied independently of the excise duty. NCCD can be levied even in the absence of levy of excise duty. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ghodawat Packers LLP Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 145107 of 2020 decided on 21 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.I. Arun.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The petitioners are assessees involved in manufacture and\r\nbusiness of Tobacco. Aggrieved by the imposition of Excise\r\nDuty and National Calamity Contingent Duty (NCCD) on the\r\ntobacco products being manufactured and sold, the instant\r\nwrit petitions are filed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Prior to passing of the Central Good and Services Act, 2017\r\n(hereinafter referred to as the ‘CGST Act, 2017’, for brevity),\r\ntobacco products were being taxed under the provisions of the\r\nCentral Excise Act, 1944 read with Central Excise Tariff Act,\r\n1985. With coming in to effect of CGST Act, 2017, by virtue of\r\nSection 174 of the said Act, the Central Excise Act, 1944,\r\nexcept in respect of goods included in entry 84 of the Union\r\nList of Seventh Schedule of the Constitution of India, has been\r\nrepealed. Further, the Central Excise Tariff Act, 1985 also has\r\nbeen repealed. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Entry 84 of the Seventy Schedule of the Constitution of India\r\ndeals with, apart from other things, duties of excise on tobacco\r\nand tobacco products. Thus, apart from levy of taxes under\r\nthe provisions of CGST Act, 2017, excise duty can be levied\r\non tobacco and tobacco products under the Central Excise\r\nAct, 1944.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">7. The case of the petitioners is that, the purpose of GST is to\r\nconsolidate and levy indirect taxes insofar as it relates to the\r\ngoods and services which are covered in it and tobacco and\r\ntobacco products being subjected to GST, the respondents\r\nought not to have imposed excise duty or NCCD any more on\r\ntobacco and tobacco products. It is further contended that,\r\neven if excise duty is leviable upon tobacco and tobacco\r\nproducts, by virtue of notification No.11/2017 dated </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">30.06.2017, no excise duty was being levied on tobacco and\r\ntobacco products from 01.07.2017 till notification No.3/2019\r\ndated 06.07.2019 was passed and NCCD being a surcharge\r\nof excise duty could not have been levied. On the said ground\r\nit is prayed that the writ petitions be allowed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. Thus, levy of excise duty on tobacco and tobacco products is\r\na matter of public policy and this Court in exercise of writ\r\njurisdiction would not interfere with the same. The CGST itself\r\ncontemplates levy of excise duty upon tobacco and tobacco\r\nproducts apart from they being taxed under the provisions of\r\nCGST. There is no error in the same. Thus, the respondents\r\nare entitled to levy CGST as well as excise duty on tobacco\r\nand tobacco products.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. The next question that arises for consideration is whether\r\nwhen excise duty is exempted, can NCCD be leviable under\r\nthe provisions of Section 136 of the Finance Act, 2001?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. As mentioned above, NCCD is a surcharge of the excise duty.\r\nThe case of the petitioners is that, when excise duty is not\r\nlevied, NCCD cannot be levied and there was no excise duty\r\non tobacco and tobacco products from 01.07.2017 to\r\n06.07.2019 and NCCD could not have been levied during the\r\nsaid period.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. Surcharge is an additional charge or payment. As stated\r\nabove, Section 136 of the Finance Act, 2001 contemplates\r\nlevying and collecting NCCD, which is considered as a\r\nsurcharge, a duty of excise. Thus NCCD is not contemplated\r\nin Section 136 as a levy on the excise duty levied under the\r\nCentral Excise Act, but a separate duty being levied on the\r\nvalue of the goods manufactured or produced and it is a type\r\nof excise duty.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>19. The said contention of the petitioners also cannot be\r\naccepted. The Finance Act, 2001 sought to levy NCCD on the\r\ngoods as described in the Seventh Schedule. For better\r\nclarification, reference is made out in the Central Excise Act.\r\nRepealing of the Central Excise Act does not absolve the\r\npetitioners paying NCCD as determined under the Seventh\r\nSchedule.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20. Thus, NCCD is a surcharge and a type of excise duty which\r\ncan be levied independently of the excise duty as\r\ncontemplated under the provisions of Fourth schedule to the\r\nCentral Excise Act, 1944. Thus levy of NCCD in the absence\r\nof levy of excise duty cannot be considered as bad in law.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. For the aforementioned reasons, the writ petitions being\r\ndevoid of merit are hereby dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3e5a2e7c3a700f5052531229aae59a49.JPG', '7a68a36aa192e5a5d3fb9099fa17406f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-28', 1, '', '', '2022-10-18 13:50:19', '2022-10-28 08:47:54'),
(2311, 'IIUGnPamCfGkURwqqWgMHLRR0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Exporter switching off tamper alert notifications is a serious crime. Business houses generating vested interest of business cannot be permitted to sacrifice the interest of the nation. Karnataka High Court refuses to quash criminal proceedings. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S ib Track Solutions Pvt Ltd and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 8125 of 2022 decided on 17 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Brief facts leading to the filing of the present petition, as\r\nborne out from the records, are as follows:-\r\n 1st petitioner - M/s ib Track Solutions Private Limited\r\n(‘Company’ for short), a Company registered under the Companies\r\nAct, 1956 is associated with procuring and supplying of e-seals with\r\nRadio Frequency Identification (‘RFID’) technology for exporters\r\nfrom India. The 2nd petitioner is the Director of the 1st <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner/Company. The 1st petitioner/Company claims to have\r\nprocured unique technology which was the first of its kind for the\r\npurpose of exporting cargo with tamperproof seals. The said seals\r\nwere made to maintain highest level of safety and security. The\r\nseals were manufactured by M/s Leghorn Group SRL, Italy and the\r\nCompany is the authorized distributor of the said seals and the\r\nseals are claimed to have been certified by the International\r\nStandard Organization (ISO) as high-grade e-seal for containers\r\nand M/s Leghorn Group is said to be the pioneer in the field of\r\nmanufacture and supply of e-seals across the world. RFID is an\r\nautomatic identification mechanism which is attached to a container\r\nand can be accurately read by a handheld device that is operated\r\nby a Customs Officer at the relevant port gate. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The Company claims to have been following all the\r\nprocedure laid down in the Circulars. The Neptune e-seal which is\r\ndistributed by the Company was proved to be unbreakable without\r\nphysically breaking the stem of the said seal. It was alleged that on\r\ncertain occasions the seals though not tampered appeared to be\r\ntampered and corrective measures were immediately taken. On\r\n23-10-2018 the Directorate General of Analytics and Risk\r\nManagement, Central Board of Indirect Taxes and Customs issued a\r\nletter directing the Company not to sell RFID e-seals manufactured\r\nby M/s Leghorn Group, Italy until further orders. Again on\r\n08-11-2018 the office of the Directorate General temporarily\r\nsuspends empanelment of the 1st petitioner/Company and\r\nsubsequently terminates the contract in terms of letters dated\r\n25-03-2019 and 03-04-2019. The Directorate General did not stop\r\nat that. A crime in Crime No.172 of 2019 comes to be registered\r\non 16-07-2019 for offences punishable under Sections 66C and 72A\r\nof the Information Technology Act, 2000 and Sections 406, 420 and\r\n34 of the IPC. The Company and the Director/2nd petitioner are\r\narrayed as accused Nos. 1 and 2.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">8. It appears that accused No.3, as the Managing Director of\r\nthe Company, had approached this Court calling in question the\r\naforementioned FIR in Criminal Petition No.8197 of 2019. A\r\nco-ordinate Bench of this Court by its order dated 13.06.2022\r\nallowed the petition and quashed the FIR insofar as the said\r\nManaging Director was concerned on the ground that he had no role\r\nto play in the corporate affairs of the Company and the documents\r\nproduced by him were not controverted. If at all any one is </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">responsible, it was either the Company or the Director. The present\r\npetition is preferred on the ground that the co-ordinate Bench has\r\nquashed the proceedings against the Managing Director and,\r\ntherefore, the issue stands covered by the said judgment and\r\naccordingly, the petitioners seek quashment of proceedings in the\r\ncase at hand as well. It is for that purpose the present petition is\r\npreferred.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. The afore-narrated facts are not in dispute and are\r\ntherefore, not reiterated. The Company was in-charge of\r\nmanufacture of RFID e-seals and tampering alert was in the control\r\nof the Company in which the 2nd petitioner is the Director. It <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">becomes germane to notice the Circulars issued by Government of\r\nIndia in the Department of Revenue of the Central Board of Excise\r\nand Customs with regard to the export procedure and sealing of\r\ncontainerized cargo from time to time. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The communication was clear that the DRI has critically examined\r\nRFID e-seals supplied by M/s Leghorn Group, Italy and they have\r\nbeen found to be compromising in security requirements and was a\r\nserious issue and therefore, stopped all seals made by M/s Leghorn\r\nGroup. Later, the crime come to be registered and a search is\r\nmade in the office of the Company and at the time the seals are\r\nseized and were sent to their examination where it was found that </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">since March 2018 the testing commenced and approximately 832\r\nseals of the Company were faulty.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. The petitioners are alleged of compromising security of\r\nthe container which contains what ought to be known to the\r\nDepartment, if not known and would passes muster, even if it is a\r\nnarcotic drug, the menace of the threat looms large in that sector\r\nor that facet. Therefore, finding no merit in the contention that\r\nnothing has happened for the last 3 years and a co-ordinate Bench\r\nobliterating the proceedings against accused No.3 are of no\r\nassistance to the learned counsel appearing for the petitioners. The\r\nissue in the lis is shrouded with admissions and certain seriously\r\ndisputed questions of fact, which will have to be thrashed out only\r\nin a full blown proceeding. It is rather surprising as to why the DRI\r\nhas not proceeded further and filed its final report is a serious\r\nmatter of the kind. It is for the DRI to conclude the investigation, if\r\nnot already concluded and take the proceeding to its logical end. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. In the light of the facts obtaining in the case at hand and\r\nthe judgment of the Apex Court (supra), I do not find any merit to\r\ninterfere or interdict the investigation, against the petitioners, as\r\nany interference would amount to putting a premium on the acts of\r\nthe petitioners, for having compromised the security of the nation,\r\nwhich act sans countenance.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 17. In the result, the Criminal Petition lacking merit, is\r\ndismissed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f06741630d98706efc85cf25b5cb09d6.JPG', '1c0a27f03cc13bb7a4e333585d8f17ff.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-22', 1, '', '', '2022-10-18 14:51:03', '2022-10-22 10:30:41'),
(2313, 'gSzK5Povcq7RNzYpJS4A8p7vI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Termination of an employee without following the procedure does not amount criminal breach of trust or cheating. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Samiulla B Vs State of Karnataka and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 9520 of 2022 decided on 19 September 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice M. Nagaprasanna.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The petitioner is before this Court calling in question the proceedings in Crime No.235/2018 registered for offences punishable under Sections 420, 406, 506, 149 of the IPC pending before the IV Additional CMM Court, Bengaluru. <br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">4. If the complainant was a workman in the organization and had been terminated without following due process of law, it was open for him to initiate proceedings under the relevant provisions before the appropriate forum, instead the complainant sets the criminal law in motion, that too for the offences under Sections 406 and 420 of the IPC. Both these offences under Sections 406 and 420 of the IPC which deal with criminal breach of trust and cheating which have their ingredients in Sections 405 and 415 of the IPC respectively, cannot be seen to be remotely made out in the case at hand.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">5. The case at hand is the one where the termination of the complainant happens pursuant to the losses incurred by the petitioner or the TTC news channel. Therefore, the criminal proceedings to be initiated as an alternate method to arm twist the petitioner instead of knocking the doors of an appropriate Court for an appropriate relief, cannot be permitted to continue, as it would result in abuse of the process of law and miscarriage of justice. <br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">ORDER</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(i) Writ Petition is allowed. </span></span></p>', '7f66eeffd5b4ba03114b87ae072ba3a5.JPG', '2f6c9284dd65efb14a73f1e56a39ab4f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-25', 1, '', '', '2022-10-18 15:03:40', '2022-10-25 03:33:10'),
(2315, 'm5pqYQabGfhuFCbTq7ccfz81A', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Trademarks Act. Names of Holy Books such as Quran, Bible, Guru Granth Sahib, Ramayan cannot be claimed as a trade mark for goods or services. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Lal Babu Priyadarshi Vs Amritpal Singh.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 2138 of 2006 decided on 27 October 2015.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Ranjan Gogoi and Justice R.K. Agrawal.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">1) The present appeal has been filed against the order dated 10.01.2005 passed by the Intellectual Property Appellate Board (in short ‘the Board’) in Original Appeal No. 35/2004/TM/KOL whereby the Board allowed the appeal filed by the respondent herein while setting aside the order dated 31.03.2004 passed by the Assistant Registrar of Trade Marks. <br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2) Brief facts:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(a) One Shri Lal Babu Priyadarshi-the appellant herein, trading as M/s Om Perfumery, Bakerganj, Daldali Road, Patna made an application to the Registrar of Trade Marks to register a trade mark by name “RAMAYAN” with the device of crown in class 3 in respect of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">incense sticks (agarbattis, dhoops) and perfumeries etc.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">(b) One Shri Amritpal Singh-the respondent herein, was a dealer for the sale of the products of the appellant herein and was also trading as M/s Badshah Industries, Chitkohra, Punjabi Colony, Patna. The respondent herein filed a Notice of Opposition to oppose the registration of aforesaid trade mark under Sections 9, 11(a), 11(b), 11(e), 12(1), 12(3) and 18(1) of the Trade and Merchandise Marks Act, 1958 [repealed by the Trade Marks Act, 1999 (47 of 1999)-in short ‘the Act’] claiming that the impugned mark, being the name of a religious book, cannot become the subject matter of monopoly for an individual.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(c) The Assistant Registrar of Trade Marks, after holding that the impugned trade mark consists of device of crown and the word “RAMAYAN” is capable of distinguishing the goods and is not included in the list of marks not registrable under the Act, by order dated 31.03.2004, dismissed the application filed by the respondent herein</span><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">4) The sole question for consideration before this Court is whether the registration of the word “RAMAYAN” as a trade mark, being the name of a Holy Book of Hindus, is prohibited under Section 9(2) of the Trade Marks Act, 1999?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">12) The appellant herein filed an application dated 25.08.1994 being No. 638073-B in class 3 for registration of a trade mark consisting of the word “RAMAYAN” with the device of crown in respect of incense sticks (agarbatties) and perfumeries etc. The appellant herein claimed the user since 01.01.1987. He further filed a request to rectify the user from 01.01.1981 which was allowed by the Assistant Registrar of Trade Marks. While opposing the application in class 3 for registration of the trade mark, the respondent herein filed a notice of opposition under Sections 9, 11(a), 11(b), 11(e), 12(1) and 18(1) of the Act. He claimed the use of the trade mark “BADSHAH RAMAYAN” prior to the appellant herein. The respondent herein put forth an objection that the impugned mark, being name of a religious book, cannot become the subject matter of monopoly for an individual. He further added that his application for the registration of the same trade mark claiming user since 05.11.1986 is pending for registration. The application was further opposed with the reasoning that it carries a large sentimental value for the people and therefore, no one can claim sole right to the use of such a word. It was also admitted by the respondent herein that more than 20 traders in Patna are using the trade mark “RAMAYAN”. Finally, it was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">submitted that the impugned mark is identical with the respondent’s mark “BADSHAH RAMAYAN” which is pending registration and the impugned registration will cause confusion among general public. Though the Assistant Registrar of Trade Marks dismissed the application filed by the respondent herein, the Board set aside the said order after holding that the trade mark “RAMAYAN” is not distinctive of the goods of the appellant as it is being used as a mark for the same products by more than 20 traders in Patna and in different parts of the country and has become public juris and common to the trade.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">This section stipulates that the trade marks which are devoid of any distinctive character or which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of goods or rendering of the services or other characteristics of the goods or service or which consist exclusively of marks or indications which have become customary in the current <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">language or in the bona fide and established practice of the trade shall not be registered, unless it is shown that the mark has in fact acquired a distinctive character as a result of use before the date of application. It also provides that a mark shall not be registered as trade marks if (i) it deceives the public or causes confusion, (ii) it contains or comprises of any matter likely to hurt the religious susceptibilities, (iii) it contains scandalous or obscene matter, (iv) its use is prohibited. It further provides that if a mark consists exclusively of (a) the shape of goods which form the nature of goods themselves, or (b) the shape of goods which is necessary to obtain a technical result, or (c) the shape which gives substantial value of the goods then it shall not be registered as trade mark.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">15) The word “RAMAYAN” represents the title of a book written by Maharishi Valmiki and is considered to be a religious book of the Hindus in our country. Thus, using exclusive name of the book “RAMAYAN”, for getting it registered as a trade mark for any commodity could not be permissible under the Act. If any other word is added as suffix or prefix to the word “RAMAYAN” and the alphabets or design or length of the words are same as of the word “RAMAYAN” then the word “RAMAYAN” may lose its significance as a religious book and it may be considered for registration as a trade mark. However, in the present case, we find that the appellant had applied for registration of the word “RAMAYAN” as a trade mark. We also find that in the photographs, after adding “OM’s” to the word “RAMAYAN”, at the top and in between “OM’s and RAMAYAN”, the sentence, “Three Top Class Aromatic Fragrance”, is also written. Thus, it is not a case that the appellant is seeking the registration of the word “OM’s RAMAYAN” as a trade mark. Further, from the photographs, we find <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that the photographs of Lord Rama, Sita and Lakshman are also shown in the label which is a clear indication that the appellant is taking advantage of the Gods and Goddesses which is otherwise not permitted.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">16) In National Bell Co. (supra), this Court has held that the distinctiveness of the trade mark in relation to the goods of a registered proprietor of such a trade mark may be lost in a variety of ways e.g. by the goods not being capable of being distinguished as the goods of such a proprietor or by extensive piracy so that the marks become public juris. The principle underlying clause (c) of Section 32 is that the property in a trade mark exists so long as it continues to be distinctive of the goods of the registered proprietor in the eyes of the public or a section of the public. If the proprietor is not in a position to use the mark to distinguish his goods from those of others or has abandoned it or the mark has become so common in the market that it has ceased to connect him with his goods, there would hardly be any justification in retaining it on the register.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">18) There are many holy and religious books like Quran, Bible, Guru Granth Sahib, Ramayan etc., to name a few. The answer to the question as to whether any person can claim the name of a holy or religious book as a trade mark for his goods or services marketed by him is clearly ‘NO’.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">19) Moreover, the appellant has not been able to establish that the word “RAMAYAN” for which he has applied the trade mark had acquired a reputation of user in the market inasmuch as, we find that there are more than 20 traders in the city using the word “RAMAYAN” as a mark for the similar products and also in different parts of the country.<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">21) Further, the respondent herein claimed that though he had been in the business since 1980, he had developed and published the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">artistic work in 1986 and has also been using the mark as a trademark and claiming use since 1986 whereas the appellant herein claimed use of the trademark since 1987. However, by filing an application to the concerned authority, the appellant has claimed the use since 1981. Further, in various pleadings in the Title Suits filed by the respondent herein, the appellant herein has admitted the use and publication of the artistic mark of the respondent before the date of claim of the first use by the appellant, that is, 1987. From these facts, it is clear that the respondent herein was using the artistic mark earlier in point of time to that of the appellant herein.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">22) In view of the foregoing discussion, we do not find any irregularity in the order passed by the Board dated 10.01.2005, consequently, the appeal fails and is accordingly dismissed. However, the parties are left to bear their own costs.</span></span></p>', '0fb97bb3212e1c50fb8ceea62a7e5308.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-28', 1, '', '', '2022-10-18 15:07:19', '2022-10-28 12:19:27'),
(2316, 'tylImX3RgHtkSWu8dZY0behJQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Limitation to apply for cancellation of khata under Section 114A of the Karnataka Municipal Corporations Act is three years from the date of the order and not from the date of knowledge of the order. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">JSM International Limited and others Vs The Commissioner BBMP and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 13802 of 2021 decided on 21 September 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Hemant Chandangoudar.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Petitioners claim to be the owners of the subject properties by virtue of the registered sale deeds dated 22.07.1999 and 23.07.1999 and also rectification deed dated 24.08.1999. In pursuance of the said deeds, the katha was registered in favour of the petitioners in respect of the subject properties by the then village Panchayat, Doddakallasandra Village, Uttarahalli Hobli, Bangalore South Taluk.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. The subject properties were brought within the limits of respondent-BBMP in the year 2006 and thereafter the petitioners submitted an application with the respondent-BBMP to enter their names in the tax register maintained by the respondent-BBMP as specified under sub-section 3 of Section 114 of the Karnataka Municipal Corporation Act, 1976. Petitioners names were entered in the tax register maintained by the respondent-BBMP on 5.01.2016</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. Respondent No.4 claiming to be the owner of the subject properties filed a review petition under Section 114-A of the KMC Act 1976 for setting aside the katha registered in favour of the petitioners stating that the katha was obtained fraudulently.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">4. Respondent No.2 by impugned order set aside the katha registered in favour of the petitioners and directed the respondent No.3 to register the katha in favour of the petitioners in respect of the subject properties against which the present petition is filed. <br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">9. In the present case, the kathas were registered in favour of the petitioners on 5.1.2016 and the review petition was filed under Section 114 A of the KMC act 1976 on 20.11.2019 which is beyond three years from the date of recording of such transfer in favour of the petitioners.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">10. In view of the preceding analysis, I am of the considered view that the impugned order passed by the respondent No.2 is one without jurisdiction since Section 114A of the KMC act 1976 specifies that review petition cannot be entertained after three years to re-open the case and pass such orders after recording such transfer of title.<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">ORDER</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">i) Writ petition is allowed. </span></span></p>', '558767720d4f9a4e21091dea818e8426.jpeg', '941aa52662698ab97b4f139100fd3eac.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-19', 1, '', '', '2022-10-18 15:08:19', '2022-10-19 09:07:22');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2317, 'Kn6qHWUNB4met0X5giEZA8iO3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' An FIR under Section 306, IPC cannot be quashed on the basis of financial settlement with the informant, surviving spouse, parents, children, guardians, care-givers or anyone else. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Daxaben Vs The State of Gujarat and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Criminal Appeal Arising out of SLP (CRL) 1132-1155 of 2022 decided on 29 July 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Indira Banerjee and Justice V. Ramasubramanian.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. The Appellant is the wife of late Shaileshkumar Chimanbhai Patel, hereinafter referred to as the “deceased”, who is stated to have committed suicide on 1st March 2020 by consuming poison in his office.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">4. One Pinakin Kantibhai Patel, claiming to be a cousin of the deceased, as also an Accountant working for the deceased, lodged an FIR being C.R. No. I-11209016200112 dated 1st March 2020 with Himmatnagar Police Station, District Sabarkantha, naming 12 accused persons, being the applicants in the Criminal Miscellaneous Applications in the High Court under Section 482 of the CrPC, referred to above, alleging that they had committed offence under Section 306 of the Indian Penal Code, 1860 (IPC) of abetting the commission of suicide by the deceased.<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">15. In this case, however, it appears that the High Court did not even address to itself, the question of whether the allegations in the FIR constituted an offence under Section 306 IPC or not. The FIR was quashed in view of a settlement between the accused named in the FIR and the complainant.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">16. It is not necessary for this Court to go into the question of whether there was any direct or indirect act of incitement to the offence of abetment of suicide, since the High Court has not gone into that question. Suffice it to mention that even an indirect act of incitement to the commission of suicide would constitute the offence of abetment of suicide under Section 306 of the IPC.<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">25. The only question in this appeal is whether the Criminal Miscellaneous Applications filed by the accused under Section 482 of the Cr.P.C. could have been allowed and an FIR under Section 306 of the IPC for abetment to commit suicide, entailing punishment of imprisonment of ten years, could have been quashed on the basis of a settlement between the complainant and the accused named in the FIR. The answer to the aforesaid question cannot, but be in the negative.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">49. In exercise of power under Section 482 of the Cr.P.C., the Court does not examine the correctness of the allegation in the complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">50. In our considered opinion, the Criminal Proceeding cannot be nipped in the bud by exercise of jurisdiction under Section 482 of the Cr. P.C. only because there is a settlement, in this case a monetary settlement, between the accused and the complainant and other relatives of the deceased to the exclusion of the hapless widow of the deceased. As held by the three-Judge Bench of this Court in Laxmi <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Narayan & Ors. (supra), Section 307 of the IPC falls in the category of heinous and serious offences and are to be treated as crime against society and not against the individual alone. On a parity of reasoning, offence under section 306 of the IPC would fall in the same category. An FIR under Section 306 of the IPC cannot even be quashed on the basis of any financial settlement with the informant, surviving spouse, parents, children, guardians, care-givers or anyone else. It is clarified that it was not necessary for this Court to examine the question whether the FIR in this case discloses any offence under Section 306 of the IPC, since the High Court, in exercise of its power under Section 482 CrPC, quashed the proceedings on the sole ground that the disputes between the accused and the informant had been compromised.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">51. The appeals are allowed. The impugned orders of the High Court are set aside. The observations made in this judgment are not to be construed as any observation on the merits of the contentions of the respective parties.</span></span></span></p>', 'b5d9c5862852f9a09c34318ab5b2a8ba.jpeg', '00470654d8bf4a92247553f97a617561.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-20', 1, '', '', '2022-10-18 15:09:14', '2022-10-20 14:44:34'),
(2325, 'v0Hh5AnN9o3M5lQyzsoDVkVcG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Interpretation of statutes. Courts can look at the previous history of the statute, and the changes it underwent to discern what is intended by the lawmakers when an amendment is introduced, or a new law enacted. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Assistant Commissioner of Income Tax(Exemptions) Vs Ahmedabad Urban Development Authority.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 21762 of 2017 decided on 19 October 2022.  </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Chief Justice Uday Umesh Lalit, Justice S. Ravindra Bhat and Justice Pamidighantam Sri Narasimha.<br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">4. In these batch of appeals and special leave petitions, the primary question which falls for consideration is the correct interpretation of the proviso to Section <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2(15) of the IT Act introduced by amendment w.e.f. 01.04.2009. It is necessary, at this stage, to notice that the IT Act visualized three kinds of charitable purposes: medical relief, education, and relief for the poor – which are described hereafter as “per se purposes”. To this list, Parliament has, by amendments, added other categories, such as preservation of environment (including watersheds, forests, and wildlife) and preservation of monuments or places or objects of artistic or historic interest, and yoga. The last – or the residual purpose included by the definition - is “advancement of any other object of general public utility” (hereafter referred to as “GPU category”), which is the subject of interpretation in the present case.</span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">5. The Director General of Income Tax for exemptions, Commissioner of Income Tax (“CIT”) in various states, and other officials of the Income tax department (hereafter compendiously referred to as “the revenue”) have appealed the decisions of various High Courts, which have held that the carrying on of any trade, commerce, or business, is not a per se bar or disqualification for a GPU category charitable trust to claim to be such, precluding its tax-exempt status under the IT Act.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">92. The history of the statute and the evolving interpretation of “charitable purpose” reveals that in - P. Krishna Warriar (supra), this court extensively considered the previous jurisprudence on the subject (in light of the pre-existing Section 4(3) of the old law), as well as the amendment introduced in 1953. At that time, income of a charitable organization, earned from business was subject to limitations. The limitations were that (i) the business was to be carried on in the course of the actual carrying out of a primary purpose of the trust or institution; or (ii) the work in connection with the business was to be mainly carried on by beneficiaries of the institution. These expressions were considered in Krishna Warriar (supra), where the court held that the term “property” (of a trust) was of widest amplitude, which included business. The following decision, in Andhra Chamber of Commerce (supra) where the chamber of commerce had among its objects, one enabling it to advocate policies or legislation, or oppose them, in addition to the object of promoting business, held that the incidental inclusion of such objects, involving espousing a political purpose, did not undermine its essential or main purpose, of advancing objects of general public utility. The new provision, i.e., Section 2(15) of the IT Act, defined “charitable purpose” restrictively: to deny tax exemption to activities for profit which were carried on by a trust for the advancement of an object of general public utility. The reason for this change (discussed previously) was that the advantage of tax exemption was not intended to charitable trusts that were commercial concerns, which while ostensibly serving a public purpose, were fully paid for the benefits provided by them</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">105. It is therefore clear that after 1 April, 1984, the statute did not contain any restriction as to the nature of activity that could be carried on by GPU category charity. Furthermore, the condition in Section 13(1)(bb) - which applied to other kinds of trusts, i.e., that their incomes could be exempt under Section 11 to the extent they arose out of business, if the business was “in the course of the actual carrying out of a primary purpose of the trust”- was deleted. On the other hand, the wording of Section 11(4A) did seem to indicate that business activity was permissible if the objects of the trust were wholly charitable, and such business were to be carried on by its beneficiaries. This legal position continued, till the amendments in question were carried out, in relation to Section 2(15) in 2008. 106. Section 2 begins with the expression “unless the context otherwise requires”- as a preface to every expression which is sought to be defined, under the IT Act.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">158. The question whether Section 11(4A) applies where a business is held under trust was answered in the negative in earlier High Court judgments. The general provision under Section 4(3)(i) of the old Act exempted income derived from property held under trust from taxation. Section 4(3)(ia) however, enacted that any income derived from a business carried on behalf of a religious or <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">charitable trust would be entitled to exemption only if the business was carried on in the course of carrying out of a primary purpose of the trust or the work in connection with the business is mainly carried on by the beneficiaries of the trust. The revenue contended there that since clause (ia) was a special provision dealing with exemption in respect of a business carried on for and on behalf of a trust, any claim for exemption as regards the profits of such business can be made only under that provision, and if conditions laid down therein are not satisfied, the assessee cannot rely upon the general provision contained in Section 4(3)(i) to claim exemption thereunder on the ground that business is property. In Gadodia Swadeshi Stores v. Commissioner of Income Tax, Punjab , the Lahore High Court held that the fact that the business carried on behalf of the trust failed to satisfy the two conditions in Section 4(3)(ia) was no reason for it be denied exemption if it fell within Section 4(3)(i). The court held that that the two categories mentioned in the two clauses did not exclude each other.</span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">160. Therefore, to summarise on the legal position on this - if a property is held under trust, and such property is a business, the case would fall under Section 11(4) and not under Section 11(4A) of the Act. Section 11(4A) of the Act, would apply only to a case where the business is not held under trust. There is a difference between a property or business held under trust and a business carried on by or on behalf of the trust. This distinction was recognized in Surat Art Silk (supra), which observed that if a business undertaking is held under trust for a charitable purpose, the income from it would be entitled to exemption under Section 11(1) of the Act. <br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">161. The interface between Sections 11(1) and (4) is of some importance. Firstly, under Section 11(4), it is only the business which is held under the trust that would enjoy exemption in respect of its income under Section 11(1). Secondly, there is a distinction between the objects of a trust and the powers given to the trustees to effectuate the purposes of the trust. In this regard, the observations of this court, in J.K. Trust (supra) assume relevance. There, one of the questions which arose was whether the office of managing agency, which was an office of profit, was in fact settled upon trust and, therefore, could be considered to be business held under trust. The court held that for the purposes of Section 4(3)(i) of the 1922 Act, the office of managing agency was property which could be held under trust. The revenue pointed out that on the terms of the trust deed previously executed by the settlors (on 15.06.1945), the properties which the trustees are to hold and stand possessed of, were only the sum of ?1,00,000/-, any donations and contribution received by the trustees and all accretions thereto, and investment in securities made from time to time representing the accretions. It was contended that on the terms of the trust deed, the managing agency which was acquired on 10.09.1945 for a period of 20 years, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cannot be said to be property held under trust since no part of the initial amount of ?1,00,000/-, which was settled upon the trust, was utilised in the acquisition of the managing agency, so as to impress it with the character of accretion</span><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">175. In the opinion of this court, the change intended by Parliament through the amendment of Section 2(15) was sought to be emphasised and clarified by the amendment of Section 10(23C) and the insertion of Section 13(8). This was Parliaments’ emphatic way of saying that generally no commercial or business or trading activity ought to be engaged by GPU charities but that in the course of their functioning of carrying out activities of general public utility, they can in a limited manner do so, provided the receipts are within the limit spelt out in Clause (ii) of the proviso to Section 2(15).</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">241. Apparently, the trust was continuously treated as a GPU category charity and exempted under Section 10(23C)(iv) from 1984-85 onwards. For AY 2009- 10, after considering the revised return of the trust, the Revenue was of the opinion that it was not entitled to claim exemption under Section 10(23C). The Punjab and Haryana High Court which dealt with the Trust’s present appeal was of the opinion that in Surat Art Silk (supra), this court had considered the judgment of the Privy Council. In that judgment, this Court had made some observations that even though the activity of the publication of newspaper was carried on commercial lines with the object of earning profit, it was an activity engaged by the Trust for the purposes of carrying out its charitable objects. The High Court upheld the revenue’s contention and based upon its analysis of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 2(15) concluded that the Trust’s income derived from its activities were based on profit motive. In doing so, it was noticed that 85% of the trust’s revenue was from advertisements and interest. The total revenue was ?161 crores out of which ?124.87 crores was received from advertisements and ?11.38 crores from interest on FDRs; ?17.49 crores was from sale of newspapers and ?3.74 crores from subscriptions of the dailies.</span><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">244. The question then is whether the nature of receipts and income garnered by the Trust, in the course of actually carrying out its activity of publishing newspaper, can be characterized as<i> “in the nature of trade, commerce or business” or “service in relation to trade, commerce or business”</i>, for any consideration. During the course of submissions, it was urged that advertisement revenue should not be treated as business or commercial receipts since that virtually is the lifeblood which sustains the activity of publication of newspapers. It was highlighted that the object of maintaining the activity of publishing and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">distribution of newspaper remains the advancement of general public utility, as it has the effect of both notifying and educating the general public about the current affairs and developments. The inclusion of advertisements also serves as information to the general public, especially in areas of employment, availability of resources, etc. Therefore, publication of advertisement is intrinsically connected with the activity of printing and publishing of newspapers. </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">245. The publication of advertisements for consideration, in the opinion of the court, by the newspaper, cannot but be termed as an activity in the nature of carrying on business, trade or commerce for a fee or consideration. That the newspaper published by the trust (“the Tribune”) in this case is funded mainly through advertisement is no basis for holding that publishing such advertisements by the Trust does not constitute business. The object of the trust to involve or engage in publication of newspapers. Publishing advertisements is obviously to garner receipts which are in the nature of profit. Now, by virtue of the amended definition of Section 2(15), GPU charities can engage themselves in business or commercial activity or profit, only if the receipts from such activities do not exceed the quantitative limit of the overall receipts earned in a given year. While the assessee’s contention that publication of advertisement is intrinsically linked with newspaper activity (thereby fulfilling sub-clause (i) of the proviso to Section 2(15), i.e. an activity in the course of actual carrying on of the activity towards advancement of the object) is acceptable, nevertheless, the condition imposed by sub-clause (ii) of the proviso to Section 2(15) has to also be fulfilled. In the present case, that percentage had been exceeded, as evident from the record.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">246. In the light of the foregoing discussion, this court is of the opinion that the impugned judgment and order of the Punjab and Haryana High Court cannot be sustained, to the extent it holds that the Tribune trust is not a GPU charity. However, having regard to the factual analysis, the judgment needs no interference. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">250. This court is of the opinion that there is no clarity with respect to whether the activity of supplying mid-day meals falls within the objects clause of the assessee society. The order of the ITAT as well as the High Court disclosed that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the assessee’s objects involved maintenance of health clubs, Arogya Kendra, promotion of moral values and provision of emergency relief. These do not however include the activity which it actually performed, i.e., entering into contracts for supply of mid-day meals and the activity of cooking and supply of mid-day meals. In the absence of fuller material, it would not be possible for the court to assess the activity with which the assessee was engaged, and determine whether it could be said to legitimately fall within the description of GPU. </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">251. The first consideration would be whether the activity concerned was or is in any manner covered by the objects clause. Secondly, the revenue authorities should also consider the express terms of the contract or contracts entered into by the assessee with the State or its agencies. If on the basis of such contracts, the accounts disclose that the amounts paid are nominal mark-up over and above the cost incurred towards supplying the services, the activity may fall within the description of one advancing the general public utility. If on the other hand, there is a significant mark-up over the actual cost of service, the next step would be ascertain whether the quantitative limit in the proviso to Section 2(15) is adhered to. It is only in the event of the trust actually carrying on an activity in the course of achieving one of its objects, and earning income which should not exceed the quantitative limit prescribed at the relevant time, that it can be said to be driven by charitable purpose.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">252. This court, in the normal circumstances, having regard to the above discussion, would have remitted the matter for consideration. However, it is apparent from the records that the tax effect is less than Rs.10 lakhs. It is apparent that the receipt from the activities in the present case did not exceed the quantitative limit of Rs.10 lakhs prescribed at the relevant time. In the circumstances, the impugned order of the High Court does not call for interference. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">253. In view of the foregoing discussion and analysis, the following conclusions are recorded regarding the interpretation of the changed definition of “charitable purpose” (w.e.f. 01.04.2009), as well as the later amendments, and other related provisions of the IT Act.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">A. General test under Section 2(15)</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">A.4. Section 11(4A) must be interpreted harmoniously with Section 2(15), with which there is no conflict. Carrying out activity in the nature of trade, commerce or business, or service in relation to such activities, should be conducted in the course of achieving the GPU object, and the income, profit or surplus or gains must, therefore, be incidental. The requirement in Section 11(4A) of maintaining separate books of account is also in line with the necessity of demonstrating that the quantitative limit prescribed in the proviso to Section 2(15), has not been breached. Similarly, the insertion of Section 13(8), seventeenth proviso to Section 10(23C) and third proviso to Section 143(3) (all w.r.e.f. 01.04.2009), reaffirm this interpretation and bring uniformity across the statutory provisions.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">B. Authorities, corporations, or bodies established by statute<br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">B.2. However, at the same time, in every case, the assessing authorities would have to apply their minds and scrutinize the records, to determine if, and to what extent, the consideration or amounts charged are significantly higher than the cost and a nominal mark-up. If such is the case, then the receipts would indicate that the activities are in fact in the nature of “trade, commerce or business” and as a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">result, would have to comply with the quantified limit (as amended from time to time) in the proviso to Section 2(15) of the IT Act.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">B.3. In clause (b) of Section 10(46) of the IT Act, “commercial” has the same meaning as “trade, commerce, business” in Section 2(15) of the IT Act. Therefore, sums charged by such notified body, authority, Board, Trust or Commission (by whatever name called) will require similar consideration – i.e., whether it is at cost with a nominal mark-up or significantly higher, to determine if it falls within the mischief of “commercial activity”. However, in the case of such notified bodies, there is no quantified limit in Section 10(46). Therefore, the Central Government would have to decide on a case-by-case basis whether and to what extent, exemption can be awarded to bodies that are notified under Section 10(46).</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">B.4. For the period 01.04.2003 to 01.04.2011, a statutory corporation could claim the benefit of Section 2(15) having regard to the judgment of this Court in the Gujarat Maritime Board case (supra). Likewise, the denial of benefit under Section 10(46) after 01.04.2011 does not preclude a statutory corporation, board, or whatever such body may be called, from claiming that it is set up for a charitable purpose and seeking exemption under Section 10(23C) or other provisions of the Act.</span><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">C. Statutory regulators</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">C.1. The income and receipts of statutory regulatory bodies which are for instance, tasked with exclusive duties of prescribing curriculum, disciplining professionals and prescribing standards of professional conduct, are prima facie not business or commercial receipts. However, this is subject to the caveat that if the assessing authorities discern that certain kinds of activities carried out by such regulatory body involved charging of fees that are significantly higher than the cost incurred (with a nominal mark-up) or providing other facilities or services such as admission forms, coaching classes, registration processing fees, etc., at <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">markedly higher prices, those would constitute commercial or business receipts. In that event, the overall quantitative limit prescribed in the proviso to Section 2(15) (as amended from time to time) has to be complied with, if the regulatory body is to be considered as one with ‘charitable purpose’ eligible for exemption under the IT Act.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">C.2. Like statutory authorities which regulate professions, statutory bodies which certify products (such as seeds) based on standards for qualification, etc. will also be treated similarly.</span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">D. Trade promotion bodies Bodies</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">involved in trade promotion (such as AEPC), or set up with the objects of purely advocating for, coordinating and assisting trading organisations, can be said to be involved in advancement of objects of general public utility. However, if such organisations provide additional services such as courses meant to skill personnel, providing private rental spaces in fairs or trade shows, consulting services, etc. then income or receipts from such activities, would be business or commercial in nature. In that event, the claim for tax exemption would have to be again subjected to the rigors of the proviso to Section 2(15) of the IT Act. <br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">E. Non-statutory bodies</span><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">E.1. In the present batch of cases, non-statutory bodies performing public functions, such as ERNET and NIXI are engaged in important public purposes. The materials on record show that fees or consideration charged by them for the purposes provided are nominal. In the circumstances, it is held that the said two assessees are driven by charitable purposes. However, the claims of such nonstatutory organisations performing public functions, will have to be ascertained on a yearly basis, and the tax authorities must discern from the records, whether the fees charged are nominally above the cost, or have been increased to much higher levels. </span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">G. Private Trusts</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">So far as the appeal by assessee-Tribune Trust is concerned, it has been held that despite advancing general public utility, the Trust cannot benefit from exemption offered to entities covered by Section 2(15) as the records reveal that income received from advertisements, constituted business or commercial receipts. Consequently, the limit prescribed in the proviso to Section 2(15) has to be adhered to for the Trust’s claim of being as a charity eligible for exemption, to succeed. Therefore, despite differing reasoning, this court has held that the impugned judgment of the High Court does not call for interference.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">H. Application of interpretation</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\">H. At the cost of repetition, it may be noted that the conclusions arrived at by way of this judgment, neither precludes any of the assessees (whether statutory, or non-statutory) advancing objects of general public utility, from claiming exemption, nor the taxing authorities from denying exemption, in the future, if the receipts of the relevant year exceed the quantitative limit. The assessing authorities must on a yearly basis, scrutinize the record to discern whether the nature of the assessee’s activities amount to “trade, commerce or business” based on its receipts and income (i.e., whether the amounts charged are on cost-basis, or significantly higher). If it is found that they are in the nature of “trade, commerce or business”, then it must be examined whether the quantified limit (as amended from time to time) in proviso to Section 2(15), has been breached, thus disentitling them to exemption. </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">255. This batch of matters is disposed of, in the above terms. Pending applications, if any, are dismissed. </span></p>', '6ba7eeb9ce49f486954324e15acb9f6c.jpeg', 'cbe573b1a12f1987412879cb2a871a3c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-25', 1, '', '', '2022-10-20 21:02:47', '2022-10-25 07:24:05');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2326, 'pxU1YNc1JZR4fLfp5BGY6NumW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Once it is established that the seized poppy straw tests positive for the contents of morphine and meconic acid, no other test would be necessary for bringing home the guilt of the accused under the provisions of Section 15 of the NDPS Act. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>State of Himachal Pradesh Vs Nirmal Kaur and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 956 of 2012 decided on 20 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B.R. Gavai and Justice C.T Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. On 25th July 2003, when Sarbjeet Singh (PW-12)\r\nalong with some other police officials were on patrolling duty\r\nat Haroli in Una District, he was informed by Constable\r\nUpnesh Kumar (PW-1) that the respondent-accused was\r\nindulging in the illicit trading of ‘poppy straw’ and that she\r\nhad kept huge quantity of ‘poppy straw’ in the room where\r\nfodder for the cattle had been stacked.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. After complying with the formalities as prescribed\r\nunder the 1985 Act, a raiding party was formed and the\r\npremises of the respondent was searched. During the search,\r\na bag containing 20 Kgs. of ‘poppy husk’ was found in the\r\nroom meant for stacking fodder. Two samples each weighing\r\n250 grams were separated and sealed. The respondent was\r\narrested. While in police custody, the respondent made a\r\ndisclosure statement that she had concealed nine more\r\ngunny bags of ‘poppy husk’ on the side of khad near\r\nGurudwara Girgirga Sahib. Accordingly, eight gunny bags\r\neach containing 40 Kgs. of ‘poppy husk’ and one bag\r\ncontaining 30 Kgs. of ‘poppy husk’ were recovered. From\r\neach of these nine bags, two samples, each weighing 250\r\ngrams, were separated and sealed in separate parcels.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">5. The samples were sent to the Chemical Examiner,\r\nwho opined that the samples contained contents of ‘poppy\r\nhusk’. After completion of the investigation, the respondent\r\nwas charged with the offence punishable under Section 15(c)\r\nof the 1985 Act for possessing commercial quantity of ‘poppy\r\nstraw’. The respondent pleaded not guilty and claimed to be\r\ntried. At the conclusion of the trial, the trial court found the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respondent guilty and convicted and sentenced her to\r\nundergo rigorous imprisonment for ten years and to pay a\r\nfine of Rs.1,00,000/-, and, in default of payment of fine, to\r\nundergo rigorous imprisonment for a further period of two\r\nyears.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. The respondent filed an appeal being Criminal\r\nAppeal No. 525 of 2004 before the High Court. During the\r\ncourse of hearing, the High Court was of the opinion that the\r\ntests conducted by the Chemical Examiner to ascertain\r\nwhether ‘meconic acid’ and ‘morphine’ were present in the\r\nsample stuff, were not enough to reach the conclusion that\r\nthe stuff was, in fact, ‘poppy straw’. Therefore, the High\r\nCourt summoned the Chemical Examiner as a court witness.\r\nThe High Court came to a conclusion that the two tests\r\nconducted by the Chemical Examiner to ascertain whether\r\nthe samples contained ‘meconic acid’ and ‘morphine’ did not\r\nindicate that the stuff examined consisted of the parts of\r\neither the plant of the species of the ‘papaver somniferum L’\r\nor a plant of any other pieces of ‘papaver’ from which ‘opium’\r\nor any other ‘phenanthrene alkaloid’ can be extracted and\r\nwhich the Central Government had notified to be ‘opium <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">poppy’ for the purposes of the 1985 Act. The High Court\r\ntherefore held that the two tests cannot be sufficient evidence\r\nto hold that the stuff recovered from the respondent, the\r\nsample of which was analysed by the Chemical Examiner,\r\nwas ‘poppy straw’. The High Court further held that the\r\nprosecution had failed to prove the sample to be of ‘poppy\r\nstraw’ within the meaning of the 1985 Act and therefore, the\r\nrespondent was not liable to conviction and punishment for\r\nthe offence described in and made punishable under Section\r\n15 of the 1985 Act. Accordingly, the High Court, vide\r\nimpugned judgment dated 2nd November 2007, allowed the\r\nappeal and set aside the judgment and order of conviction\r\nand sentence dated 29th November 2004 passed by the trial\r\ncourt. Being aggrieved thereby, the State preferred an appeal\r\nbefore this Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. In the present case, we are concerned with the\r\nconviction in relation to ‘poppy straw’. ‘Poppy straw’ has\r\nbeen defined to mean all parts of ‘opium poppy’ after\r\nharvesting, whether in their original form or cut, crushed or\r\npowdered and whether or not juice has been extracted\r\ntherefrom. However, the said definition excludes the seeds.\r\nAs such, ‘poppy straw’ would mean all parts of ‘opium poppy’\r\nexcept the seeds. Therefore, for bringing home the guilt of\r\nthe accused for contravention in relation to ‘poppy straw’, it\r\nwill be relevant to refer to the definition of ‘opium poppy’.\r\n‘Opium poppy’ has been defined under Clause (xvii) of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 2 of the 1985 Act which has been reproduced\r\nhereinabove. As per sub-clause (a) of Clause (xvii) of Section\r\n2 of the 1985 Act, ‘opium poppy’ means the plant of the\r\nspecies ‘papaver somniferum L’. As per sub-clause (b)\r\nthereof, ‘opium poppy’ would also mean the plant of any\r\nother species of ‘papaver’ from which ‘opium’ or any\r\n‘phenanthrene alkaloid’ can be extracted and which the\r\nCentral Government, by notification in the official gazette,\r\nhas declared to be ‘opium poppy’ for the purposes of the\r\n1985 Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. It could thus be seen that, for bringing home the\r\nguilt of the accused within the ambit of Section 15 of the\r\n1985 Act, it is necessary to establish that the contravention\r\nis in relation to ‘poppy straw’. A combined reading of the\r\ndefinition given under Clauses (xvii) and (xviii) of Section 2,\r\nand Section 15 of the 1985 Act would reveal that, for\r\nbringing home the guilt of the accused, it will be necessary to\r\nestablish that the seized material collected is any part of\r\n‘opium poppy’ except the seeds. As such, what would be\r\nrequired to establish is that the genus of the seized material\r\nis ‘opium poppy’ as defined under Clause (xvii) of Section 2 of\r\nthe 1985 Act. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>82. As already discussed hereinabove, it was well\r\nrecognized under the earlier enactments, International\r\nConventions and scientific studies that ‘papaver somniferum\r\nL’ plant was the main source for the production of ‘opium’.\r\nThe 1878 Act so also the 1930 Act had recognized this <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">position. In the International Conventions also, this was\r\nrecognized. Though for the first time in the 1953 Protocol, in\r\naddition to “papaver somniferum L’, any other species of\r\n‘papaver’, which may be used for the production of ‘opium’\r\nwas included in the definition of ‘opium’, the subsequent\r\nconventions of 1961 and 1988 again defined ‘opium poppy’\r\nas a plant of ‘papaver somniferum L’. The scientific study\r\nconducted at the national as well as the global level\r\nestablishes that ‘papaver somniferum L’ consists of\r\n‘morphine’ and ‘meconic acid’. If the construction as adopted\r\nin the impugned judgment is to be accepted, then, even if it\r\nis found that the Chemical Examiner’s report establishes\r\nthat the contraband article contains ‘morphine’ and ‘meconic\r\nacid’, a person cannot be convicted unless it is further\r\nestablished that the contraband material has a genesis in\r\n‘papaver somniferum L’.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>86. Insofar as the reliance placed by the High Court of\r\nHimachal Pradesh on the judgment of this Court in the case\r\nof Amarsingh Ramjibhai Barot (supra) is concerned, the\r\nonly question for consideration before this Court was, as to\r\nwhether the High Court was justified in taking the total\r\nquantity of the offending substances recovered from the two\r\naccused jointly and holding that the said quantity was more <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">than the commercial quantity, warranting punishment under\r\nSection 21(c) of the 1985 Act. In the said case, the opinion\r\ngiven by the FSL was that it was ‘opium’ as described in the\r\n1985 Act. The court from the evidence found that the\r\nsubstance recovered from the appellant therein had 2.8%\r\nanhydride morphine. The court therefore held that it would\r\namount to ‘opium derivative’ within the meaning of Section\r\n2(xvi)(e) of the 1985 Act. It was therefore held that, what was\r\nrecovered from the appellant therein was ‘manufactured\r\ndrug’ within the meaning of Section 2(xi) of the 1985 Act.\r\nThe Court therefore held that the offence proved against the\r\nappellant therein clearly fell within Section 21 of the 1985\r\nAct for illicit possession of a ‘manufactured drug’. We fail to\r\nunderstand as to how the said judgment could be said to be\r\na proposition for holding that, unless the Chemical\r\nExaminer’s report establishes that the contraband material\r\nwas derived from the species of ‘papaver somniferum L’,\r\nconviction under Section 15 of the 1985 Act would not be\r\ntenable.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>88. We are therefore of the considered view that the High\r\nCourt was not justified in holding that, even after the\r\nChemical Examiner’s report establishes that the contraband\r\ncontains ‘meconic acid’ and ‘morphine’, unless it was\r\nestablished that the same was derived from the species of\r\n‘papaver somniferum L’, conviction under Section 15 of the\r\n1985 Act could not be sustained.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>89. As already discussed hereinabove, once it is\r\nestablished that the seized material contains ‘meconic acid’\r\nand ‘morphine’, it will be sufficient to establish that it is\r\nderived from the plant ‘papaver somniferum L’ as defined in\r\nsub-clause (a) of Clause (xvii) of Section 2 of the 1985 Act. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>90. We further find that the High Court was also not\r\njustified in observing that the Chemical Examiner’s report, in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the alternative, should establish that the seized material is a\r\npart of any other species of ‘papaver’ from which ‘opium’ or\r\nany ‘phenanthrene alkaloid’ could be extracted and which\r\nhas been notified by the Central Government as ‘opium’ for\r\nthe purpose of the 1985 Act. We fail to understand as to how\r\na Chemical Examiner could be asked whether the seized\r\nmaterial was a part of any other species of ‘papaver’ from\r\nwhich ‘opium’ or any other ‘phenanthrene alkaloid’ could be\r\nextracted when there is no such species of ‘papaver’ which\r\nhas been notified by the Central Government to be ‘opium\r\npoppy’ for the purpose of the 1985 Act.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">91. In the result, we hold that, once a Chemical\r\nExaminer establishes that the seized ‘poppy straw’ indicates\r\na positive test for the contents of ‘morphine’ and ‘meconic\r\nacid’, it is sufficient to establish that it is covered by subclause (a) of Clause (xvii) of Section 2 of the 1985 Act and no\r\nfurther test would be necessary for establishing that the\r\nseized material is a part of ‘papaver somniferum L’. In other\r\nwords, once it is established that the seized ‘poppy straw’\r\ntests positive for the contents of ‘morphine’ and ‘meconic\r\nacid’, no other test would be necessary for bringing home the</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">guilt of the accused under the provisions of Section 15 of the\r\n1985 Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>95. We suspend the sentence till the matter is decided\r\non merits by the High Court.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>96. The appeal is allowed in the above terms.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>97. Pending application(s), if any, shall stand disposed of\r\nin the above terms. No order as to costs.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f4efa3567101d388843c560b00ff1aef.jpeg', '670e9bdcab33abc9cd52fc752eda3587.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-26', 1, '', '', '2022-10-21 12:43:47', '2022-10-26 03:33:25'),
(2327, '1ni6hrxYMoJ2OIJbO4s8EEYZ6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Only the Special Court and not the Magistrate can exercise powers under the Prevention of Money Laundering Act, 2002. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Harsha D Vs State and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 19042 of 2022 decided on 17 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. Shorn of details, the facts in brief, are as follows:-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> A crime comes to be registered in Crime No.48 of 2022 before\r\nthe Chowk Police Station, Kalaburagi in which the petitioner is one\r\nof the accused. The same is transferred to the 2nd respondent, the\r\nInvestigating Agency. Another crime comes to be registered in\r\nCrime No.60 of 2022 before the High Grounds Police Station against\r\n34 persons in which petitioner is accused No.29. The latter crime\r\nwas registered during the time when the earlier crime was under\r\ninvestigation. On 26.07.2022 the police filed charge sheet in Crime\r\nNo.60 of 2022. The petitioner throughout has been in prison either\r\nconcerning crime No.48 of 2022 or crime No.60 of 2022. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The issue in the case at hand is not with regard to merits\r\nof the matter concerning either of the crimes. What drives the\r\npetitioner to this Court is that on 30-08-2022 the 3\r\nrd respondent/\r\nDirectorate of Enforcement (‘ED’ for short) files an application under\r\nSection 50(3) of the Prevention of Money Laundering Act, 2002\r\n(‘the PMLA’ for short) before the concerned Court i.e., the learned\r\nMagistrate in C.C.No.25035 of 2022 seeking permission to record\r\nwritten statement of five accused including the petitioner who are in\r\njudicial custody and to allow two officers of the ED with a laptop\r\nand a printer for the purpose of recording the statements and also\r\nsought a direction to the Jail Authorities to cooperate for recording\r\nof such statements. The petitioner filed his objections to the said\r\napplication on 05-09-2022. The learned Magistrate considering\r\nboth the application and the objection filed, allows the application\r\nand permits the ED to record the statements as was sought for in\r\nthe application. It is this order of the learned Magistrate that drives\r\nthe petitioner to this Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The petitioner is in judicial custody concerning crime No.60\r\nof 2022. Charge sheet has been filed and the petitioner continues to\r\nbe in judicial custody and the matter is pending consideration\r\nbefore the Court of the learned Magistrate in C.C.No.25035 of 2022.\r\nThe issue involved is the alleged scam with regard to recruitment of\r\nPolice Sub-Inspectors in the year 2021. Huge cash flow is also\r\nalleged in the case at hand. It is, therefore, to get into the angle of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">money laundering an ECIR comes to be registered against the\r\npetitioner. Pursuant to registration of ECIR, the authorities, as\r\nobtaining under Section 50 of the PMLA, sought to record the\r\nstatements of the petitioner with regard to registration of crime. In\r\nterms of Section 50(2) of the PMLA which empowers the Director or\r\nan authority authorized for collection of evidence, the statements of\r\nthe petitioner including others who are in judicial custody\r\nconcerning C.C.No.25035 of 2022 are sought to be recorded</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. In the light of the statutory frame work of the PMLA and\r\nthe application filed under Section 50 of the Act, this Court is of the\r\nconsidered view that the application was not maintainable before\r\nthe learned Magistrate, since the Court did not have the power to\r\ndirect recording of statements for it to become a record under the\r\nPMLA, the order which is passed by the Court which did not have a\r\njurisdiction to even consider any application under the PMLA, is\r\nrendered unsustainable. There can be no qualm about the\r\nprinciples laid down in the judgment rendered in the case of\r\nNIRANJAN SINGH (supra) relied on by the learned counsel\r\nrepresenting the ED to mean what is custody, but the judgment is\r\ninapplicable to the facts of the case at hand as it does not deal with\r\nissues concerning jurisdiction. Therefore, in view of the preceding\r\nanalysis, the order passed on the application by the learned\r\nMagistrate requires appropriate interference and is to be\r\nconsequently obliterated.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> (i) The Writ Petition is allowed. </b></span></p>', '686dad29fc14a823b4c1cd44d31ed088.JPG', '11f99ffcc37d8cde18b04493108a36df.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-24', 1, '', '', '2022-10-21 13:02:21', '2022-10-24 03:23:41'),
(2328, 'Smgn3SlW2hXOMjB1Pbj8ohdW4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Power of the Deputy Commissioner to demarcate Panchayat area also includes inclusion or exclusion of fishing lakes. Karnataka High Courts.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sri Gangaparameshawari Multipurpose Fishermen Co-Operative Society Ltd Vs The Assistant Registrar of Co-Operative Societies and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 14274 of 2021 decided on 23 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. This writ petition is filed challenging the resolution\r\ndated 30.7.2021 passed by the 3rd respondent - Village\r\nPanchayat granting lease hold right for fishing for a period of five\r\nyears in favour of the 4th respondent on the ground that the 4th\r\nrespondent is not eligible for grant of lease hold right in view of\r\nthe government order dated 21.2.2014</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The controversy involved in these writ petitions is\r\nwhether Bhargavathi lake falls within the limits of Nethenahalli\r\nGrama Panchat or Madbala Grama Panchayat. The learned\r\ncounsel appearing for the Nethenahalli Grama Panchayat has\r\nfiled a memo along with sketch showing that the Bhargavathi\r\nlake is situated in Sy.No.63 measuring 46 acres 7 guntas in\r\nUduvegere village, which comes within the Nethenahalli Grama <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Panchayath and Sy. No.45 measuring 45 acres 24 guntas in Pura\r\nvillage, which comes within the limits of Madbala Grama Panchat.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n\r\n 7. Section 4 of the Karnataka Grama Swaraj and\r\nPanchayat Raj Act, 1993 specifies that subject to the general or\r\nspecial orders of the Government, the Deputy Commissioner, if,\r\nin his opinion, it is expedient to declare any area comprising a\r\nvillage or group of villages having a population of not less than\r\nfive thousand and not more than seven thousand to be a\r\npanchayat area, may, after previous publication, declare such\r\narea as a panchayat area for the purposes of this Act and also\r\nspecify its headquarter. Sub-Section 2 of Section 4 of the Act\r\nspecifies that the Deputy Commissioner at the request of the\r\nGrama Panchayat concerned, or otherwise, and after previous\r\npublication of the proposal by notification at any time, increase\r\nthe area of any panchayat area by including within such\r\npanchayat area any village or group of villages or diminish the\r\narea of any panchayat area by excluding from such panchayat\r\narea any village or group of villages. Hence, the controversy\r\nwhether Bhargavathi lake falls within the Nethenahalli Grama\r\nPanchayat or Madbala Grama Panchayat is the matter which is to\r\nbe adjudicated by the Deputy Commissioner in the light of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 4 of the Act. Since there is a dispute with regard to the\r\njurisdiction of the respective Gram Panchayats to grant lease\r\nhold right of fishing activities in Bhargavathi lake, the impugned\r\nresolutions passed by the respective Gram Panchayats to be kept\r\nin abeyance.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> i) Writ petitions stand disposed of. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a097596316f172bea21943164bc66fe5.jpeg', '3c50f29ba2efcaec47c571c906d07ea2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-24', 1, '', '', '2022-10-21 13:54:41', '2022-10-24 08:25:17'),
(2329, 'dNCPL15SjH5pR7a4w8Lc6uUlr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque bounce case. Single complaint in respect of several cheques issued from Company account as well as personal account is maintainable if the transaction is same. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>C. Hemanth Kumar Vs M/s Spectra Lamps Pvt Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 422 of 2015 decided on 14 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">The appellant is the complainant before the\r\ntrial court. On 5.6 .2009, the respondent issued\r\nthree cheques bearing nos.551950 for a sum of\r\nRs.1 ,60,00,000/-, 205674 for a sum of\r\nRs.25,000/- and 205675 for a sum of Rs.25 ,000/-\r\nto the complainant. These cheques were </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dishonoured because of insufficiency of funds in\r\nthe bank account. The complainant got issued\r\ndemand notices to the accused and since the\r\ndemand was not complied with, the complainant\r\ninitiated action against the accused for the offence\r\nunder section 138 of N.I.Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n2. It is the case of the complainant that\r\naccused no.1 is a private limited company\r\nregistered under the Companies Act. Accused no.2\r\nand one Smt. Menaka were the directors. The\r\ncompany was under financial distress. Accused\r\nno.2 was introduced to the complainant by one\r\nShivalingaiah . The complainant agreed to meet\r\nthe urgent business requirements and to discharge\r\nthe loan raised by the accused from KSFC, banks\r\nand other financial institutions. The accused\r\nexecuted security documents and borrowed money\r\nfrom the complainant several times commencing\r\nfrom July, 2006 . They were found due in a sum of</span><span style=\"font-size: 12pt;\">  </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rs.1 ,90,50,000/- including interest as on\r\n5.2 .2009 . The complainant came to know that\r\naccused no.2 had made misrepresentation about\r\nstatus of first accused-company and his credibility.\r\nThen he demanded for repayment. In this\r\nconnection a meeting was held and at that time\r\naccused no.2 executed a letter of acknowledgment\r\ndated 5 .2.2009 on behalf of accused no.1 and in\r\nfurtherance of the same , he issued the above said\r\ncheques. The first cheque was issued by accused\r\nno.2 on behalf of first accused – company and the\r\nremaining two cheques were of his personal bank\r\naccount.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. From the arguments, the points emanating\r\nfor discussion are:-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. Whether a single complaint in respect\r\nof a cheque issued on behalf of the\r\nfirst accused company and two other\r\ncheques relating to the personal bank\r\naccount of the 2nd accused is\r\nmaintainable? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ii. Has the Magistrate correctly held that\r\nthe complainant has not proved the\r\nexistence of legally enforceable debt? </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>iii. What order? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>POINT No.(i)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 10. This point being purely legal can be raised\r\nin the appeal. As the facts indicate accused no.2\r\nstands in dual capacity, firstly as the Managing\r\nDirector of the first accused company and secondly\r\nas an individual in relation to his personal\r\ncheques. But it is important to note here that all\r\nthe three cheques were issued in connection with\r\nliability of the company, which is not disputed.\r\nAnd in relation to an offence under section 138 of\r\nN.I.Act, only drawer of the cheque is liable to be\r\nprosecuted. In the context of liability under\r\nsection 138 of N.I .Act, drawer of the cheque may\r\nbe any person, that means any person may take\r\nover the liability of any other. In this case, the\r\nactual transaction giving rise to liability <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">enforceable under law was between the\r\ncomplainant and the first accused-company. The\r\ntwo cheques drawn on the personal account of the\r\nsecond accused indicate that he issued those two\r\ncheques taking over part of the liability of the first\r\naccused-company. Therefore, in strict sense , the\r\ncheques in question are drawn by two different\r\naccused.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. I f this analysis is applied to the factual\r\nsituation in the instant case, the transaction in\r\nconnection with which cheques were issued can be\r\nsaid to be the same. The transaction pertains to\r\nloan liability of the first accused-company.\r\nTherefore what is deducible is, second accused\r\nwho stands in dual capacity can be tried together\r\nfor the dishonour of the cheque of the company\r\nand two cheuqes of his personal bank account. A\r\nsingle demand notice was enough and a single\r\ncomplaint is maintainable. Point No.(1) is\r\nanswered in a ffirmative. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>POINT NO.(ii)</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Unhesitatingly it can be held that the\r\nfindings o f the Magistrate are incorrect. There is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">no dispute about issuance of cheques by the\r\nsecond accused on behalf o f Company as its\r\nManaging Director and in his individual capacity.\r\nThe defence version is that the complainant having\r\ntaken over the Management of the first accusedcompany loses right to enforce the liability.\r\nEx.D .4 is the document that the accused no.2 has\r\nrelied upon. It is a copy of Memorandum of\r\nUnderstanding (MoU) dated 14.2.2008. It appears\r\nthat PW.1 – the complainant admitted the copy of\r\nMoU when it was confronted to him during his\r\ncross-examination, and therefore it was taken on\r\nrecord as an exhibit. Any way coming into being\r\nof MoU is not disputed and it indicates that second\r\naccused and his wife Smt. Menaka resigned their\r\nDirectorship of the Company and the complainant\r\nagreed to take over the company. The\r\ncomplainant also agreed to submit Form 32 to the\r\nRegistrar of Companies. Sri. Puttige Ramesh\r\nargued that Form 32 should have been submitted </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by outgoing directors, and it was not submitted.\r\nIt is not in dispute that Form No.32 was not\r\nsubmitted to the Registrar of Companies, and\r\nthereby notwithstanding the stipulations found in\r\nEx.D .4, there did not come into effect any change\r\nin the management of the company. It is true that\r\nEx.D .1, which is a resolution dated 23.2.2008\r\nshows that the complainant and Smt. Sheela\r\nKumar were appointed as the directors. In Ex.D .2\r\nthe complainant is shown as the occupier of the\r\ncompany. Ex.D.3 is a letter dated 26 .2.2008\r\nwritten by the complainant as the Managing\r\nDirector accepting the resignation of one Ramesh\r\nH.K. Ex.D .7 is a Photostat copy of a letter dated\r\n10.2.2009 written by the second accused to the\r\nRegistrar o f Companies stating that the Company\r\nwas taken over by the complainant and he came to\r\nknow that Form 32 had not been filed. This letter\r\ndoes not contain seal of the O ffice of Registrar of\r\nCompanies for having received original of it, and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">therefore it cannot be relied upon. Ex.D .8 and\r\nEx.D .9 are copies of two letters dated 21 .1.2009\r\nand 5.2.2009 respectively addressed by the\r\nsecond accused to the Branch Manager of Bank of\r\nIndia, Bangalore Main Branch, K.G.Road,\r\nBengaluru stating that the company had been\r\ntaken over by the complainant. Ex.D.8 does not\r\ncontain acknowledgment seal of the bank, but\r\nEx.D .9 contains such a seal. It is clear that the\r\nendeavour of the accused by producing these\r\ndocuments was to rebut the evidence of the\r\ncomplainant that the cheques became\r\nunenforceable and thereby legally enforceable\r\nliability did not exist. But the complainant relies\r\non Ex.P .22 which is said to be a settlement that\r\ncame into existence on 5.2 .2009 between the\r\ncomplainant and the company. Actually Ex.P.22 is\r\na letter written by the company and signed by the\r\nsecond accused stating that all the earlier\r\nagreements and understandings were cancelled </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and the second accused confirmed that he was the\r\nManaging Director of the Company and that he\r\ntook back all the original documents executed by\r\nhim and the company in favour of the complainant.\r\nIn Ex.P.22 there is a clear reference to the\r\ncheques, Ex.P1 to P.3 being issued acknowledging\r\nthe outstanding liability of the company as\r\nRs.1 ,90,50,000/-. PW.2 establishes execution of\r\nEx.P.22 . He may not be aware of contents but he\r\nsigned as a witness to the execution of Ex.P.22.\r\nThere is no effective cross-examination of PW .1 on\r\nEx.P.22 . One suggestion found is that the\r\ncomplainant has misused Ex.P.22 . That means\r\naccused no.2 does not dispute execution of\r\nEx.P.22 and according to him it was misused.\r\nTherefore if on 5.2.2009 , Ex.P .22 came into\r\nexistence nullifying the MoU and other\r\nagreements, Ex.D7,D.8 and D.9 can hardly have\r\nany effect. If this is the picture obtainable from\r\ndocumentary evidence, the findings of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Magistrate cannot be sustained. A clear\r\nconclusion can be drawn that the cheques were\r\nissued for discharging part of the liability of the\r\ncompany. As can be made out from Ex.P.22,\r\nEx.P.1 to P .3 were post dated cheques; they do\r\nnot appear to have been issued on any anterior\r\ndate by way of security. It is admitted that the\r\ncheques were dishonoured for insufficiency of\r\nfunds in the bank accounts. Demand notice was\r\nissued within the prescribed time. Demand was\r\nnot fulfilled and thereby penal consequences under\r\nSection 138 of N.I . Act ensued. For these reasons,\r\nthe findings o f the Magistrate cannot be sustained.\r\nPoint No.2 is therefore answered in negative.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>POINT NO.(iii):-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. In view of discussion on points (i) and\r\n(ii), the acquittal judgment requires to be set\r\naside . In regard to dishonour of cheque as per\r\nEx.P.1, the first accused is to be convicted and in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">terms of section 141 of N.I .Act, accused no .2 who\r\nis its Managing Director is to be sentenced . And in\r\nregard to cheques as per Ex.P.2 and Ex.P.3,\r\naccused is to be held guilty and sentenced for the\r\noffence under section 138 of N.I .Act. It may also\r\nbe noted here that since the case is pending for\r\nthe past thirteen years, the complainant needs to\r\nbe compensated adequately from the fine amount.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Appeal is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '47c57fb7908822c4f627945b6470ca23.JPG', '8d782cb69a05033411a6ed687158f093.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-22', 1, '', '', '2022-10-22 14:11:19', '2022-10-22 14:19:57');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2330, 'EonEA0XGB2XjGAMeG99nsmZpc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mediclaim policy is contract of good faith. Repudiation of the claim on the ground of suppression of pre-existing illness cannot be found fault with. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jaya Elizabeth Mathew and others Vs Insurance Ombudsman and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 14346 of 2021 decided on 21 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Shorn of unnecessary details, facts in brief, as borne out\r\nfrom the pleadings, are as follows:- </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n The petitioners are wife and husband respectively. 1st\r\nrespondent is the Insurance Ombudsman and the 2nd respondent is\r\nthe insurer/HDFC Ergo General Insurance Company (‘the Company’\r\nfor short). The petitioners having a desire of building a house opted <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for home loan through the 2nd respondent/Company. The loan came\r\nwith “Home Suraksha Plus’ dated 29-04-2017 and was to be for a\r\nperiod of 5 years from 29-04-2017 to 28-04-2022. The policy\r\ncovered major medical illness and procedures to an amount of\r\nRs.56,87,368/- jointly for both the petitioners. On 10-08-2020, it\r\nappears that the Doctors at Vikram Hospital diagnosed the 1st\r\npetitioner to be suffering from Multiple Sclerosis and started\r\ntreatment immediately. After the treatment, the insurance claim\r\nwas made on the strength of the insurance coverage that was given\r\nby the 2nd respondent/Company in its policy dated 29-04-2017.\r\nThe claim was repudiated by communication of the 2nd respondent\r\ndated 14-12-2020 on the ground that the 1st petitioner was\r\ndiagnosed to be suffering from multiple sclerosis from 27-03-2017\r\nand the ailment was a pre-existing ailment which had not been\r\ndivulged by the petitioners while filling the form claiming such\r\ninsurance. Against the said repudiation, the petitioners approached\r\nthe Insurance Ombudsman challenging repudiation by the 2nd\r\nrespondent/Company. The Insurance Ombudsman by an order\r\ndated 29-03-2021 affirms repudiation of the claim of the petitioners\r\nand also holds that the petitioners were guilty of their non- </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">disclosure of information about serious illness notwithstanding it\r\nbeing in their knowledge. It is the order of repudiation by the 2nd\r\nrespondent/Insurance Company and the order of the 1st\r\nrespondent/Insurance Ombudsman that drives the petitioners to\r\nthis Court in the subject petition.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. I have given my anxious consideration to the submissions\r\nmade by the respective learned counsel and perused the material\r\non record; in furtherance whereof, the issue that falls for my\r\nconsideration is:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i style=\"\">“ Whether repudiation of the claim of the petitioners is\r\nvalid in the eye of law?” </i><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The afore-narrated facts though are not in dispute would\r\nrequire a little elaboration. The policy was attached to a home loan\r\nthat was granted by the HDFC Bank and the policy is titled “Home\r\nSuraksha Plus” to be in operation between the dates 29-04-2017\r\nand 28-04-2022. Since the issue relates to the dates anterior to the\r\npolicy itself, a little walk in history would be required to consider\r\nthe case of the petitioners. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>12. Insofar as judgments relied on by the learned counsel for\r\nthe petitioners, they are all distinguishable without much ado. In\r\nthe judgment of a coordinate Bench of this Court in the case of\r\nMRS. SHIVAPRABHA JAYAPRAKASH SHETTY (supra) the facts\r\nwere that the petitioner’s husband therein was suffering from\r\ncysticero meningitis with arthritis and was intermittently\r\nhospitalized during the period of the policy and its renewal and the\r\n2\r\nnd respondent therein who was very well aware of the medical\r\nhistory of the petitioner’s husband therein had suggested a new\r\npolicy to be taken viz., “National Parivar Mediclaim Plus”. Those are\r\nnot the facts in the case at hand, as it was held that the husband of\r\nthe petitioner therein had not died on account of pre-existing\r\ndisease but he died for sepsis, pancytopenia, left loculated pleural\r\neffusion. The Court would hold that the clause with regard to preexisting illness was not applicable in the factual matrix. Therefore,\r\nthe said judgment would not lend any assistance to the petitioners.\r\nThe said judgment was tossed before the Division Bench by the\r\nInsurance Company which also comes to be dismissed. Therefore,\r\nthe finding of the Division Bench which has only affirmed the order\r\nof the co-ordinate Bench would also lend no assistance to the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioners. The other two judgments relied on by the learned\r\ncounsel for the petitioners would also become inapplicable, as they\r\nare distinguishable on the facts obtaining in those cases without\r\nmuch ado.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13. Much reliance is placed on the judgment of Madras High\r\nCourt in the case of JASMINE EBENEZER ARTHUR v. HDFC\r\nERGO GENERAL INSURANCE COMPANY LIMITED which\r\nconcerns the very same insurer. The facts therein would become\r\ndistinguishable to the facts in the case at hand. The claimant\r\ntherein was suffering from myocardial infarction and it was a finding\r\nthat the cause of death was myocardial infarction due to Ventricular\r\nFibrillation. Therefore, the said judgment also is inapplicable to the\r\nfacts of the case at hand. In the light of the preceding analysis, no\r\nfault can be found with the repudiation and the order of\r\nOmbudsman affirming the said repudiation and disallowing the\r\nclaim.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. For the aforesaid reasons, the petition undoubtedly meets\r\nits dismissal and is accordingly dismissed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '90656a5c6de4c3caea65fb00f1182fa2.JPG', '3833ce43762792c326cbf50df1ca1bf3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-22', 1, '', '', '2022-10-22 14:17:03', '2022-10-22 09:13:28'),
(2331, 'pvVSfRJrpI2w5TaHnAOBxRe9O', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Appointment of Vice Chancellor of University on the recommendation of Search Committee constituted contrary to UGC Regulations is void ab initio. State Act must be amended to bring it on a par with UGC Regulations. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Professor Sreejith P.S. Vs Rajasree M.S. and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 7634-7635 of 2022 decided on 21 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The appellant herein – original writ petitioner preferred the writ\r\npetition before the learned Single Judge of the High Court for writ of quo\r\nwarranto to declare the appointment of the respondent No. 1 as Vice\r\nChancellor of the APJ Abdul Kalam Technological University,\r\nThiruvananthapuram as void ab initio inter alia on the grounds that the\r\nappointment of the respondent No. 1 dehors the provisions of the UGC\r\nRegulations; that the composition of the Search Committee was not in\r\naccordance with the UGC Regulations, 2010; even the recommendation\r\nand appointment of the respondent No. 1 as Vice Chancellor was not in\r\naccordance with the UGC Guidelines; the Search Committee was\r\nrequired to recommend a panel of three to five names to the Chancellor,\r\nhowever, in the present case, only one name was recommended to the\r\nChancellor, which was contrary to the UGC Regulations; the provisions\r\nof the University Act to the extent it conflicts with the UGC Regulations\r\nshall not be binding and the provisions of the UGC Regulations shall\r\nprevail over the said legislation to the extent they are in conflict with the\r\nUGC Regulations.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The short question, which is posed for consideration of this Court\r\nis: whether while making the appointment of respondent No. 1 as Vice\r\nChancellor of the APJ Abdul Kalam Technological University,\r\nThiruvananthapuram, the appointment should be as per the prevailing\r\nUGC Regulations or in effect of the provisions of the University Act, 2015\r\n(State Act)?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The other question which is posed before this Court for\r\nconsideration is: whether the Search Committee constituted to\r\nrecommend the name of the respondent No. 1 as Vice Chancellor of the\r\nUniversity can be said to be duly constituted Committee?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Identical question came to be considered by this Court in the case\r\nof Gambhirdan K. Gadhvi (supra) and Kalyani Mathivanan (supra).\r\nNow, the issue whether the UGC Regulations shall prevail vis-à-vis the\r\nState legislation/State Act, identical question came to be considered by\r\nthis Court in the recent decision of this Court in the case of Gambhirdan\r\nK. Gadhvi (supra). While considering the appointment of the Vice\r\nChancellor in the Sardar Patel University, Gujarat, it is specifically\r\nobserved and held by this Court that the appointment of Vice Chancellor\r\ncannot be made dehors the applicable UGC Regulations, even if the\r\nState Act concerned prescribes diluted eligibility criteria, vis-à-vis the\r\ncriteria prescribed in the applicable UGC Regulations. It is further\r\nobserved and held by this Court in the aforesaid decision that the State\r\nAct if not on a par with the UGC Regulations, must be amended to bring\r\nit on a par with the applicable UGC Regulations and until then it is the\r\napplicable UGC Regulations that shall prevail. It is further observed and\r\nheld that being a subordinate legislation, UGC Regulations become part\r\nof the Act. It is further observed and held that in case of any conflict <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">between the State legislation and the Central legislation, the Central\r\nlegislation, i.e., the applicable UGC Regulations shall prevail by applying\r\nthe principle of repugnancy under Article 254 of the Constitution as the\r\nsubject “education” is contained in the Concurrent List of Schedule VII of\r\nthe Constitution.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8.4 In view of the above two binding decisions of this Court, any\r\nappointment as a Vice Chancellor made on the recommendation of the\r\nSearch Committee, which is constituted contrary to the provisions of the\r\nUGC Regulations shall be void ab initio. If there is any conflict between\r\nthe State legislation and the Union legislation, the Union law shall prevail\r\neven as per Article 254 of the Constitution of India to the extent the\r\nprovision of the State legislation is repugnant. Therefore, the\r\nsubmission on behalf of the State that unless the UGC Regulations are\r\nspecifically adopted by the State, the UGC Regulations shall not be\r\napplicable and the State legislation shall prevail unless UGC Regulations\r\nare specifically adopted by the State cannot be accepted.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8.10 At this stage, it is required to be noted that even as per Section\r\n13(4) of the University Act, 2015, the Committee shall recommend\r\nunanimously a panel of not less than three suitable persons from\r\namongst the eminent persons in the field of engineering sciences, which\r\nshall be placed before the Visitor/Chancellor. In the present case,\r\nadmittedly the only name of respondent No. 1 was recommended to the\r\nChancellor. As per the UGC Regulations also, the Visitor/Chancellor\r\nshall appoint the Vice Chancellor out of the panel of names\r\nrecommended by the Search Committee. Therefore, when only one\r\nname was recommended and the panel of names was not\r\nrecommended, the Chancellor had no option to consider the names of\r\nthe other candidates. Therefore, the appointment of the respondent No.\r\n1 can be said to be dehors and/or contrary to the provisions of the UGC\r\nRegulations as well as even to the University Act, 2015. Therefore, the\r\nappointment of respondent No. 1 on the basis of the recommendations\r\nmade by the Search committee, which was not a duly constituted Search\r\nCommittee as per the UGC Regulations and when only one name was<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>recommended in spite of panel of suitable candidates (3-5 suitable\r\npersons as required under Section 13(4) of the University Act, 2015), the\r\nappointment of respondent No. 1 can be said to be illegal and void ab\r\ninitio, and, therefore, the writ of quo warranto was required to be issued.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n9. In view of the above and for the reasons stated above, the present\r\nappeals succeed. The impugned judgment(s) and order(s) passed by\r\nthe Division Bench of the High Court as well as that of the learned Single\r\nJudge dismissing the writ petition and refusing to issue the writ of quo\r\nwarranto declaring the appointment of respondent No. 1 as Vice\r\nChancellor of the APJ Abdul Kalam Technological University,\r\nThiruvananthapuram as bad in law and/or illegal and void ab initio are\r\nhereby quashed and set aside. The writ petition is allowed. There shall\r\nbe a writ of quo warranto declaring the appointment of the respondent\r\nNo. 1 as Vice Chancellor of the APJ Abdul Kalam Technological\r\nUniversity, Thiruvananthapuram as void ab initio and consequently, the\r\nappointment of respondent No. 1 as Vice Chancellor of the APJ Abdul\r\nKalam Technological University, Thiruvananthapuram is quashed and set\r\naside.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Present appeals are accordingly allowed. No costs. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7d39f2bcdd77134917bf09590a269e01.JPG', '867528880b04351204cd9e94304c1564.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-27', 1, '', '', '2022-10-24 11:32:34', '2022-10-27 07:19:33'),
(2332, 'uleBUcyIiptfoYgheWS5bbDJ4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Accused is not entitled for default bail under Section 167 (2) Cr.P.C. in the event of charge sheet having already been filed before his arrest. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Hrishikesh Devdikar Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 2997 of 2021 decided on 21 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioner is accused No.18 in CC 872/2018\r\npending on the file of the Prl. City Civil and Sessions\r\nJudge and Special Judge for Karnataka Control and\r\nOrganised Crime Act at Bengaluru.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. FIR in Crime No.221/2017 was registered with the\r\nRajarajeshwari Nagar Police station, Bengaluru as\r\nregards the murder of one Gowri Lankesh. He was\r\narrested on 9.01.2020 and remanded to judicial\r\ncustody on 27.01.2020. The petitioner on 4.05.2020\r\nfiled an application under subsection (2) of Section\r\n167 of Cr.P.C. seeking for statutory/default bail.\r\nWithout passing any orders on the said application,\r\nthe Special Court remanded the petitioner to judicial\r\ncustody on 12.05.2020. It is challenging the said\r\norder, the petitioner is before this Court.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The points that would arise for determination are:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Whether an accused would be entitled to the\r\nbenefit under Subsection (2) of Section 167\r\nof Cr.P.C, in the event of charge sheet having\r\nalready been filed before his arrest?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Whether the filing of an\r\nadditional/supplementary charge sheet\r\nwould give rise to a right for\r\ndefault/statutory bail under Subsection (2)\r\nof Section 167 of Cr.P.C?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Whether the second remand could be made\r\nduring COVID period without physical\r\nproduction of an accused?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n4. Whether the order of remand passed without\r\npassing order on application under\r\nSubsection (2) of Section 167 of Cr.P.C. is\r\nbad in law?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Could a absconder claim benefit of\r\nSubsection(2) of Section 167 of Cr.P.C?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. What order? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. ANSWER TO POINT NO.1: Whether an accused\r\nwould be entitled to the benefit under\r\nSubsection (2) of Section 167 of Cr.P.C, in the\r\nevent of charge sheet having already been filed\r\nbefore his arrest?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">9.5. In the present case, we are dealing with\r\nproceedings initiated under KCOCA. In terms of\r\nproviso to Subsection (2) of Section 22, the\r\nsaid period of 90 days can be extended up to\r\n180 days by the said court on a report of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Public Prosecutor indicating the progress of the\r\ninvestigation and specific reasons for detention\r\nof the accused beyond a period of 90 days.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.6. Thus, an accused in crimes other than under\r\nKCOCA could seek for statutory/default bail in\r\nterms of proviso (2) to Subsection (2) of\r\nSection 167 of Cr.P.C, if investigation is not\r\ncompleted within the prescribed period of 60 or\r\n90 days as contained therein.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.7. Insofar as offences under KCOCA are\r\nconcerned, even in such circumstances the\r\naccused could seek for statutory/default bail if\r\nthe investigation is not completed within the\r\nprescribed period under Subsection (2) of\r\nSection 167 of Cr.P.C., but however, the Public\r\nProsecutor could make an application seeking\r\nfor extension of time to complete the\r\ninvestigation and give the reasons for\r\nrequirement of the accused to be in custody. If\r\nthe same is accepted and the court were to\r\nextend the period of investigation subject to a\r\nmaximum of 180 days, then the benefit under <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Subsection (2) of Section 167 of Cr.P.C. can\r\nonly be claimed subject to time period fixed by\r\nthe Special Court in orders passed on such\r\napplication.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.14.The decision in Mithabhai Pashabhai\r\nPatel’s12 case relating to applicability of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Subsection (2) of Section 167 and the\r\nconsideration thereof is a matter of law. The\r\ndecision in Tula Ram’s13 case is relating to\r\npostponement of issuance of summons and the\r\nenquiry to be held under Section 202 which is\r\nnot applicable to the present case. The\r\ndecision in Gulavar Singh’s case relatable to\r\nthe aspect of taking cognizance is again not\r\napplicable for the reasons that investigation has\r\nbeen completed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.15.In view of the above I answer point No.1\r\nby holding that an accused would not be\r\nentitled to the benefit under Subsection\r\n(2) of Section 167 of Cr.P.C, in the event of\r\ncharge sheet having already been filed\r\nbefore his arrest.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. ANSWER TO POINT NO.2: Whether the filing of\r\nan additional/supplementary charge sheet\r\nwould give rise to a right for default/statutory <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">bail under Subsection (2) of Section 167 of\r\nCr.P.C?</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.4. In the first situation when the concerned\r\naccused is implicated in the charge sheet, the\r\ninvestigation has come to an end on the\r\nexisting material and the concerned accused\r\nhas been charged of the offences contained in\r\nthe charge sheet, though in the event of further\r\ninvestigation being carried on as regards other\r\naccused, as regards the accused against whom\r\na charge sheet has already been laid,\r\nsupplementary charge sheet/s could be laid.\r\nThus, once a charge sheet is filed within the\r\ntime period prescribed under Subsection (2) of\r\nSection 167 of Cr.P.C, or as may be extended\r\nin terms of proviso to Subsection (2) of Section\r\n22 of KCOCA, the concerned accused would not\r\nbe entitled to default/statutory bail.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.5. In the second case, where a charge sheet has\r\nnot been laid against the concerned accused,\r\nbut investigation is going on, in such event the\r\nrigour of Subsection (2) of Section 167 of\r\nCr.P.C, would apply, insofar as offences other\r\nthan that covered under KCOCA, as regards\r\noffences under KCOCA it would be governed by\r\nany order passed under the proviso to\r\nSubsection (2) of Section 22 of KCOCA. The\r\ninvestigation not being completed within the\r\nperiod mentioned under Subsection (2) of\r\nSection 167 of Cr.P.C., then concerned accused\r\ncould seek for default/statutory bail. If the\r\naccused has been tried for offences under\r\nKCOCA, it is only after the expiry of the period,\r\nif any extended by the Special Court under\r\nproviso of Subsection (2) of Section 22 of\r\nKCOCA that the right to seek for\r\nstatutory/default bail would arise.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. ANSWER TO POINT NO.3: Whether the second\r\nremand could be made during COVID period\r\nwithout physical production of an accused? <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11.1. The COVID period or the SOP applicable during\r\nthat period is not relevant in the present case\r\nfor the reason that the petitioner in this case\r\nwas not remanded for the second time but was\r\nin judicial custody subsequent to the filing of\r\nthe charge sheet. In such a situation, the\r\naccused only had an option to seek for and\r\nobtain regular bail. Once a charge sheet has\r\nbeen filed, there is no question of remand as\r\nenvisaged under Subsection (2) of Section 167\r\nof Cr.P.C. or proviso to subsection (2) of\r\nSection 167 of Cr.P.C. or the proviso to\r\nsubsection (2) of Section 22 of KCOCA.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11.2. It is only in the event of the investigation not\r\nbeing completed, the question of second\r\nremand or third remand, etc, would arise where\r\nthe aforesaid provisions would apply.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. ANSWER TO POINT NO.4: Whether the order of\r\nremand passed without passing order on\r\napplication under Subsection (2) of Section 167\r\nof Cr.P.C. is bad in law?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12.2. In the present case, a charge sheet having\r\nalready been laid and the petitioner being\r\nimplicated in the offence, the question of\r\nstatutory/default bail not being applicable is\r\nconsidered and answered hereinabove. Hence,\r\nthe question of the application for\r\ndefault/statutory bail considered prior to\r\nremand would also not arise the investigation\r\nhaving been completed. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. ANSWER TO POINT NO.5: Could a absconder\r\nclaim benefit of Sub section(2) of Section 167\r\nof Cr.P.C?<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13.4. In my considered opinion as dealt with\r\nhereinabove, the fact of the accused\r\nabsconding or delaying the investigation during\r\nthe period of he being absconding would not be\r\nrelevant for consideration of application\r\nSubsection (2) of Section 167 of Cr.P.C.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13.5. It is after the accused is arrested and available\r\nin custody, the investigation is required to be\r\ncompleted in a time bound manner as\r\ncontained in Subsection (2) of Section 167 of\r\nCr.P.C. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. ANSWER TO POINT NO.6: What order?<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14.1. In view of the answer to various points which\r\nhave been raised for consideration, I am of the\r\nconsidered opinion that in the present case,\r\ncharge sheet having been laid against the\r\npetitioner even prior to the arrest of the\r\npetitioner, the petitioner having been\r\narraigned as an accused and charged with\r\ncertain offences punishable under 302, 120(B),\r\n114, 118, 109, 201, 203, 204, 35 IPC & 25 (1),\r\n25(1B), 27(1) of Indian Arms Act and Section\r\n3(1)(i), 3(2), 3(3), 3(4) of KCOCA, I am of the\r\nconsidered opinion that the benefit under <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Subsection (2) of Section 167 of Cr.P.C. would\r\nnot arise.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The petition stands dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '176cb9147b96f115c013139e2e36d9fb.JPG', 'f231889a14e2b63dae1eadf1dddb7159.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-27', 1, '', '', '2022-10-24 11:48:43', '2022-10-27 03:23:02');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2333, '76AUKKbA2igRzYDOe5ohDGv5Y', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Even an employee on a contractual basis is entitled to provident fund. There is no requirement of a master-servant relationship with the master exercising supervision and control over the employee. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">M/S Express Publication (Madurai) Private Limited Vs Union of India and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 362 of 2021 decided on 21 October 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Suraj Govindaraj.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">2. The petitioner is a company which is engaged in the publication of newspapers. 3rd respondent, who is a Photographer, had approached the petitioner offering </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">his services only on a contract basis to do some work on photography which was accepted by the petitioner, and in order to formalise the arrangement, a contract was entered into between the petitioner and the 3rd respondent.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">5. The petitioner entered appearance and filed a petition under Section 26-B of the Employee Provident Fund Scheme 1952 [hereinafter referred to as ‘Scheme’] to determine the issue with regard to the existence of employer-employee relationship between the petitioner and the respondent. Applications and objections having been filed, written arguments having been filed, after hearing the parties, the 2nd respondent vide its order dated 29.10.2020 held that 3rd respondent is an employee of the petitioner and directed his enrolment to be made by the petitioner under the Scheme. It is aggrieved by the same that the petitioner is before this Court seeking for the aforesaid relief.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">11. The points that would arise for consideration are:</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">1. Whether the EPF Act would apply to persons engaged on contractual basis by an Organisation?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">2. Whether insofar as EPF Act is concerned, there is required for an employer- employee relationship to be in existence and employer having supervision and control over employee?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">3. Whether the relationship between the petitioner and 3rd respondent is governed by the contract is not that of a master servant requiring application of the Act and Scheme?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">4. Whether the order passed by 2nd respondent suffers from any legal infirmities?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">5. What order?<br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">7<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">. ANSWER TO POINT NO.1: Whether the EPF Act would apply to persons engaged on contractual basis by an Organisation?</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">7.6. Thus, from the statement of objects and reasons, it is clear that the State has encouraged contribution to provident fund so as to provide security to an employee upon retirement, more so taking into account that there is no formal pension scheme available in the private sector. The definition of an ‘employer’ in terms of Subsection (e) of Section 2 of EPF Act is only for the purpose of identifying as to on whom the responsibility lies. The definition of employee under Subsection (f) of Section 2 of EPF Act is to identify who an employee is and defines an <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">employee as any person who is employed for wages to do any kind of work, manual or otherwise and, accepts his wages directly or indirectly from the employer and includes any person employed by or through a contractor in connection with the work of the establishment. Thus, in terms of Subsection (f) of Section 2 of EPF Act, even a person who is engaged through a contractor being covered under the EPF act, in my considered opinion that if an employer were to employ a person directly on a contractual basis, the EPF Act would apply to such a relationship also more so when there in no exemption issued under sub-section (ff) or (fff) of Section 2</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">8. ANSWER TO POINT No.2: Whether insofar as EPF Act is concerned, there is required for an employer- employee relationship to be in existence and employer having supervision and control over employee?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">8.9. In the present case as referred to supra, an employee means any person who is employed for wages to do any kind of work. Thus, it is only the payment and receipt of wages which is important. So long as this dual test is satisfied, any person who is paid wages by the employer would become an employee under the EPF Act <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">whether the said payment is done directly or through a contractor.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8.10.Hence, I answer point No.2 by holding that insofar as EPF Act is concerned, there is no requirement of a master servant relationship with the master exercising supervision and control so long the employee draws wages on account of work done for the employer or establishment, the same would be sufficient for such person to be covered under the definition of employee under Subsection (f) of Section 2 of EPF Act.</span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">9. ANSWER TO POINT NO.3: Whether the relationship between the petitioner and 3rd respondent is governed by the contract is not that of a master servant requiring application of the Act and Scheme?<br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">9.23. A reading of the above would indicate that even a newspaper photographer is included in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the said definition of Working Journalist. Therefore, I am of the considered opinion that contention of the petitioner that a news photographer is not a working journalist is required to be rejected.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">9.24.This is rather a strange case where the 4th estate who is vested with the duty to safeguard the rights of people or bring to light any injustice caused to the citizens has itself indulged in trammelling upon the rights of its own employees, requiring a phot-journalist to approach the Hon’ble Prime Minister for redressal of his grievances.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9.25. In view of the above, I am of the considered opinion that the methodology of a contract made use of by the petitioner is only a subterfuge to cover the employment and to organise the business of the petitioner in such a</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">way as to minimise its payouts by reducing the entitlement of 3rd Respondent which is not permissible. The contract being a subterfuge, respondent No.3 being a person who is drawing wages as detailed hereinabove would be entitled to the benefits under the EPF Act and EPF Scheme. This finding being in addition to the finding above that even a contractual employee engaged directly or indirectly would be entitled for provident fund contribution.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">10. ANSWER TO POINT NO.4: Whether the order passed by 2nd respondent suffers from any legal infirmities?<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">10.8. I am therefore of the considered opinion that the first contention raised as regards the legal infirmity in the impugned order relating to a finding under Para 26B is completely misconceived and this contention by the petitioner is completely untenable.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">10.9.The second contention to challenge the order on the basis of non-existence of a master servant relationship has been answered hereinabove and I have held that it is not necessary for master and servant relationship to be established for a person to claim benefit under the EPF Act, it is sufficient if a person were to be drawing wages as regards the work done for the establishment. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">10.10. The third contention that agreement has not been considered properly since respondent No.2 came to a conclusion that the Evidence Act would not applicable and what is applicable is only principles of natural justice is again untenable since as can be seen from unnumbered para 2 of internal page 9 of the impugned order, what the respondent No.2 has said is that the technicalities of the Indian Evidence Act is not strictly applicable, the Authority has considered and examined each and every clause thereof and has come to a conclusion that the terms of contract indicate employer employee relationship. Therefore, the contention raised that the agreement has not been looked into is again bereft of merits and contrary to the available records.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">10.11. In view thereof, I answer point No.4 by holding that the impugned order of the respondent No.2 does not suffer from any legal infirmity requiring interference at the hands of this Court. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">11. ANSWER TO POINT NO.5: What order?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">11.1. In view of the above discussion and answers to the various points arising for determination, I am of the considered opinion that there is no requirement for this Court to intercede in the matter. There are no grounds made out in the petition. The proceedings as regards the notice under Section 7A EPF Act still being pending and the impugned order having been passed only as regards the preliminary issue raised relating to employer employee relationship and a finding being rendered in terms of PARA 26B of the Scheme, the aspect of payment or otherwise of provident fund amounts, the amount of payment, interest thereon, etc., would have to be considered by the respondent No.2 while dealing with the said proceedings under Section 7A of the EPF Act. For now respondent No.3 is required to enrol under the Provident Fund Scheme propounded by the Central Government.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">11.2.While dealing with the said notice under Section 7A, the concerned Authority would have to consider the applicability of the decision of the Hon’ble Apex Court in Pawan Hans Ltd. And others12 case, this Court has not expressed any opinion as regards the applicability and not the applicability of the said decision to the given facts. It would be for respondent No.2 to apply the said decision and pass necessary orders, if necessary by recordal of evidence after hearing of the parties. <br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">ORDER</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">The petition stands dismissed.</span></span></p>', '486fab3e0fb47081a048dd115189c964.JPG', 'ee6c60f4c802e2761bad457d1bd17517.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-31', 1, '', '', '2022-10-24 13:54:51', '2022-10-31 06:30:18'),
(2334, '99kJJbmjcpeU6HZvF6QdO95nl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit against public trust. Court cannot entertain application seeking appointment of receiver by deferring the application seeking leave to prosecute the suit under Section 92 of CPC. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shree Beereshwara and others Vs G.N. Sathya and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 9267 of 2022 decided on 30 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sachin Shankar Magadum.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The captioned writ petition is filed by defendants\r\nquestioning the order of the Court below passed on\r\nI.A.No.II under Section 94(d)(e) read with Order LX\r\nRule 1 and Section 151 of CPC seeking appointment of\r\nreceiver to manage the financial affairs, assets of\r\ndefendant No.2-Trust.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The plaintiffs-respondents 1 to 4 herein\r\nhave instituted a scheme suit under Section 92 of CPC\r\nagainst the petitioner 1 and petitioner No.2-Trust. In\r\nthe suit, respondents 1 to 4 have sought prayer to\r\nremove the present office bearers of the Trust namely\r\npetitioners 2 to 9 and 10 to 33 and to form a scheme\r\nand appoint a fresh committee and consequently,\r\nsought for a direction to petitioners 2 to 9 to submit\r\naccounts from 13.9.2011 to till the date of filing of the\r\nsuit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. The following points would arise for\r\nconsideration:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“1.Whether the impugned order is\r\nin compliance of direction issued by\r\nthis Court in W.P.No.20158/2021?\r\n</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b> 2. Whether the Court below\r\nerred in entertaining an application\r\nfiled under Section 94(d)(e) of CPC\r\nseeking appointment of receiver by\r\ndeferring the application filed in\r\nI.A.No.I seeking leave to prosecute\r\nthe suit under Section 92 of CPC.?” </b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. Regarding Point No.1:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">14(c) There has to be some tangible material\r\nwhich would warrant appointment of receiver. The\r\nappointment of receiver can be justified on facts when </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">there are prima facie material which clearly indicates\r\nthat property is being wasted or decipitated at the\r\nhands of person in occupation. Receiver is appointed\r\nto protect and preserve the property. The impugned\r\norder is not supported by reasons. Therefore, this\r\nCourt is of the view that the impugned order is in\r\ngross violation of the directions issued by this Court.\r\nAccordingly, Point No.1 is answered in negative.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. Regarding Point No.2:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15(a) Therefore, in the present case on hand,\r\nthe Court below had no jurisdiction to entertain an\r\napplication seeking appointment of a receiver.\r\nTherefore, this Court is of the view that the general\r\npower under Section 94 of CPC cannot be invoked in\r\nderogation of or contrary to specific mandate\r\ncontained in the Code itself. Hence, when there are <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">specific provisions contained in the Code regarding the\r\nmatter under consideration, the general power as\r\ncontained in either Section 151 or other provisions like\r\nSection 94 cannot be exercised. The expression, if it\r\nis so prescribed in Section 94 in itself would create a\r\nbar and therefore, the supplementary proceedings as\r\nprovided under Section 94 of CPC cannot be\r\nentertained in a scheme suit unless leave is granted.\r\nThe expression “if it is so prescribed” reveals the\r\nlimitation and restrictions for exercise of such powers\r\nby the Court. Therefore, this Court is of the view that\r\nexecution of power conferred under Section 94 has to\r\nbe necessarily in relation to the subject matter of\r\ndispute or the property relating to the dispute in the\r\nmatter. Certainly, such power cannot be exercised in\r\na scheme suit when an application seeking leave is\r\nstill pending for consideration. Therefore, the\r\nimpugned order passed on I.A.No.II appointing a </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">receiver is one without jurisdiction and therefore, the\r\nimpugned order being highly illegal is not at all\r\nsustainable. Accordingly, point No.2 is answered in\r\naffirmative.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> (i) The writ petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9f29b9523568cdb7c0281865975978b7.JPG', 'dfbc88330a4f7300fe6ef6b5f4cab5d4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-26', 1, '', '', '2022-10-26 19:37:42', '2022-10-27 12:15:24'),
(2335, 'aEtzi8AHHAqnpQnzev9k4ZjQU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act. Amount received under the Group Insurance Policy cannot be deducted from the compensation when no premium was paid by the employee under the Group Insurance Policy. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>United India Insurance Vs Indu Singh and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>MFA 919 of 2019 decided on 30 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Rajendra Badamikar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. MFA No.919/2019 is filed by the Respondent\r\nNo.2/United India Insurance Company Limited under\r\nSection 173(1) of Motor Vehicles Act, 1988 (for short,\r\n‘MV Act’) challenging the liability as well as quantum,\r\nwhile MFA CROB No.29/2019 is filed by the\r\npetitioners/claimants under Order 41 Rule 22 of CPC\r\nseeking enhancement of compensation awarded by the\r\nTribunal. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. The brief factual matrix leading to the case\r\nare that, on 31.05.2016 around 9.30 p.m., while the\r\ndeceased-Vishal Singh was travelling as a pillion rider\r\non motor cycle bearing Registration No. KA-41-EC-7832\r\nfrom Nice Road side towards Uttarahalli Main Road on\r\nleft side of the Gaankal Main Road near Aditya Bakery,\r\nKengeri, Bengaluru. At that time, a Tata Indica Car </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">bearing Registration No. KA.03.D 6841 driven by its\r\ndriver in a rash and negligent manner at high speed\r\ncame from opposite direction by moving to extreme\r\nright side of the road and dashed against the motor\r\ncycle on which the deceased was travelling. Due to the\r\nsaid impact, the deceased fell down and sustained\r\ngrievous injuries to his head and other parts of the\r\nbody. Immediately he was shifted to BGS Global\r\nHospital at Bengaluru, wherein he was in ICU for 05\r\ndays. However, he did not respond to the treatment\r\nand succumbed because of injuries in the hospital on\r\n05.06.2016. The deceased Vishal Singh was aged about\r\n24 years and was a BE Graduate working as a\r\nSoftware Engineer in a Private Company-Mind Tree\r\nLimited and was drawing salary of Rs.26,500/- per\r\nmonth with annual package of Rs.3,20,004/-. The\r\npetitioners/claimants being the dependents have lost\r\ntheir bread earning member and hence, they filed claim\r\npetition under Section 166 of the MV Act, claiming\r\ncompensation of Rs.50.00 Lakhs.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Having heard the arguments and perusing\r\nthe records, it is evident that the Insurance Company is\r\nchallenging the quantum. Though number of grounds\r\nare urged during oral arguments, but the grounds urged\r\nin the appeal memo are restricted to non-deduction of\r\nRs.15.00 Lakhs and interest portion only. The main\r\ncontention of the learned Counsel for the Insurance <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Company is that, Rs.15.00 Lakhs is paid to the\r\npetitioners/claimants under the Group Insurance\r\nScheme and that is required to be deducted from\r\ncompensation. But, the records as well as the evidence\r\nof PW.3 clearly disclose that premium was paid by the\r\nemployer and no evidence is placed to show that the\r\ndeceased has contributed to the Group Insurance\r\nScheme or any premium amount was deducted from his\r\nsalary.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. On assessing the facts and circumstances of\r\nthis case, it is clear that the premium amount was paid\r\nto Group Insurance Coverage Policy by the employer of\r\nthe deceased Vishal Singh. Further, from the decisions\r\nreferred supra it is also clear that, whether premium for\r\nLife Insurance Coverage Policy was paid either by the\r\nemployer or by the employee has no relevancy as it is\r\nbased on contractual liability between the deceased and\r\nhis employer and hence, such monetary benefit accrued\r\nfrom Life Insurance Policy/Scheme cannot be\r\ndeductible, while assessing compensation. As such, the\r\ncontention of the appellant/Insurance Company that,\r\nthe monetary benefit of Rs.15,00,000/- received by the\r\npetitioners/claimants/cross-objectors on account of\r\ndeath of deceased-Vishal Singh, out of Group Insurance\r\nPolicy, is to be deducted from the compensation\r\nawarded by the Tribunal, is not sustainable and the\r\ngrounds urged in this regard cannot be accepted.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. The other contention regarding ‘salary taken\r\nis on higher side’ is not substantiated by material\r\nevidence and the same is also not made as one of the\r\ngrounds in the appeal memo. Further, the Tribunal has\r\nalready considered all the aspects in this regard\r\nincluding income-tax and professional tax deductions\r\nand hence, no illegality is found in the impugned\r\njudgment. The other grounds urged by the learned\r\nCounsel appearing for Respondent No.2/Insurance\r\nCompany are not relevant, except interest portion. The\r\nTribunal has awarded interest at 9% per annum.\r\nConsidering prevailing rate of interest on Fixed\r\nDeposits, this Court is consistently granting interest at\r\n6% per annum. Hence, the rate of interest awarded by\r\nthe Tribunal appears to be on higher side and it requires\r\nto be reduced. To this extent only, the appeal filed by\r\nthe Insurance Company needs to be allowed. The other\r\ncontentions raised by the appellant/Insurance Company\r\nare without any merit and does not survive for\r\nconsideration.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 27. At the same time, the petitioners/claimants\r\nhave also filed Cross-Appeal in MFA CROB No.29/2019\r\nfor enhancement of compensation. Since the Tribunal\r\nhas taken the income based on material evidence, their\r\ncontention regarding enhancement of compensation is\r\nalso not sustainable. Under these circumstances, the\r\nsaid Cross-appeal seeking enhancement of\r\ncompensation does not survive for consideration. MFA\r\nNo.919/2019 though does not survive on quantum, but\r\nit needs to be allowed so far it relates to interest portion\r\nonly.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i) MFA No.919/2019 filed by Respondent\r\nNo.2/Insurance Company is allowed-inpart, so far as it relates to interest portion. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>iii) The impugned judgment and award,\r\ngranting compensation of Rs.42,64,000/-\r\nstands confirmed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\niv) The rate of interest awarded by the Tribunal\r\nis modified by awarding interest at 6% per\r\nannum, from the date of petition till the\r\ndate of realization.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '11947ffdb3bea9438c5b225728474699.JPG', '4ad9172cbddc29f1ca8441a48e7e2753.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-28', 1, '', '', '2022-10-26 19:43:14', '2022-10-28 12:22:42'),
(2336, 'M3DQf8Bqn8yuh7DRlj9iiwWfQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicle Act. When a claim petition is filed under Section 163A and the evidence on record shows the income is above Rs.40,000/- p.a,the claim petition is liable to be rejected,unless it is converted to one under Section 166. Karnataka High Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Branch Manager and others Vs M Dinesh and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>MFA 658 of 2010 decided on 30 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice C.M. Joshi</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This appeal arises out of the judgment and award\r\npassed in MVC No.848/2003 by the Additional MACT,\r\nSrirangapatna, on 06-08-2009, whereby, the petition\r\nunder Section 163A of MV Act, came to be partly allowed\r\nby granting a compensation Rs.4,09,000/- together with\r\ninterest with a direction to the Insurer to pay the said\r\ncompensation. The insurance company, who is arrayed as\r\nrespondent No.2 in the petition has approached this Court\r\nin appeal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The brief facts are that on 05-07-1999 at about\r\n2.00 p.m. while the deceased Sri Ramesh along with his\r\nwife and relatives was traveling in Maruthi Car bearing\r\nNo.CKR 9992 from Bangalore to Sathanur, near\r\nSingaiyanakere, the driver Ramesh lost control and dashed\r\nto guard stone and then dashed to roadside tree. The said\r\nRamesh, his wife Leela and the relative Pramila died in the\r\nsaid accident and two other inmates i.e. PW.2 Sujatha and\r\none Ranga sustained injuries. The petitioner who is the\r\nbrother of the said Ramesh, rushed to the spot and later,\r\nperformed the obsequies of the deceased. Deceased\r\nRamesh and his wife Leela had no children and therefore,\r\nthe petitioner being the only legal heir of the deceased,\r\nclaimed that he is entitled for the compensation of\r\nRs.10,00,000/-.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. On hearing the learned counsel for both the\r\nsides, the only point that arise for consideration is,</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>\r\nWhether the petitioner could have brought the\r\n petition under Section 163A of M.V. Act, by way\r\n of an amendment though the deceased had a\r\n higher income? <br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. Coming to the facts of the present case, it is\r\nevident that the petitioner being the brother of the\r\ndeceased filed a petition under Section 166 of M.V. Act, by\r\nshowing the income of the deceased as Rs.10,000/- per\r\nmonth from the Granite business and later, converted the\r\nsame to a petition under Section 163A of M.V. Act and\r\nrestricted the income to Rs.3,000/- per month. Of course,\r\nthe petitioner has not led any evidence to show the proof\r\nof income of the deceased, except his oral testimony. It is\r\nrelevant to note that the application for amendment of the\r\npetition was filed on 01-08-2005. Even prior to it, on\r\n29-04-2004, the petitioner had filed his affidavit evidence\r\nas PW1. In the said affidavit, the petitioner had <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">categorically sworn to the fact that the deceased was\r\nhaving an income of Rs.10,000/- per month from Granite\r\nbusiness and that he was aged 33 years at the time of the\r\naccident. This categorical admission, cannot be taken\r\naway by filing another affidavit. Even the Court had\r\nexamined PW1 on 29/1/2004 and Exs.P1 to P6 were\r\nmarked in evidence.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. Subsequent to allowing of IA No.6 dated\r\n01-08-2005, the petition and the income of the deceased\r\ncame to be amended, thereby, bringing the petition under\r\nSection 163A of M.V. Act. Thereafter, he filed another\r\naffidavit, wherein, he contended and sworn that, the\r\ndeceased was earning a sum of Rs.3,000/- per month\r\nfrom granite business. No documentary evidence is placed\r\non record to show the income of the deceased. PW1 was\r\ncross-examined by the Insurance company on 7-7-2007,\r\nwhere nothing is brought out about the income.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">30. When we examine the above facts in the light of\r\nthe law laid down concerning Section 163A of M.V. Act, it </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is evident that the contentions of the petitioner that the\r\ndeceased was having an income of Rs.10,000/- per month\r\ncannot be brushed aside and as such, the petition under\r\nSection 163A cannot be entertained. Obviously, the oral\r\ntestimony of PW1 dated 29-4-2004 cannot be annihilated\r\nby a subsequent affidavit/testimony. An admission on\r\naffidavit remains on record. It is clear that the petitioner\r\nin order to bring petition under Section 163A of M.V. Act\r\nhas caped the income of the deceased at Rs.3,000/- per\r\nmonth. This is directly in the teeth of the observations\r\nmade by the Apex Court in Deepal Girishbhai Soni and\r\nothers\' case. Hence, the point is answered accordingly\r\nand the appeal deserves to be allowed.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">31. During the pendency of the petition, Respondent\r\nNo.1 had filed an application under Section 140 of M.V. Act\r\nand in pursuance to the same, the Tribunal had ordered\r\nthe appellant Insurance Company to deposit a sum of\r\nRs.50,000/-. Accordingly, the appellant deposited the said\r\namount and it has been disbursed to the petitioner </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respondent No.1. Since the appeal has to be allowed, the\r\nrespondent No.1 has to be directed to refund the said\r\namount to the appellant.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n (i) The appeal is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c2bb547a28794427c98d21417e21ea9e.jpeg', '4d3da1af52ff0d2772fbe37202e1cd2b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-27', 1, '', '', '2022-10-26 19:52:36', '2022-10-27 10:59:10');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2345, 'NcIKN2TRD2T8GJH4cJK18DNX2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Accident involving pet or animal does not attract the provisions of the Motor Vehicles Act or the Indian Penal Code. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Prathap Kumar Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 1133 of 2019 decided on 21 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. On 24.02.2018, when the complainant’s mother had\r\ntaken her pets for a walk as per her routine, a\r\nFortuner SUV vehicle hit one of the pet dogs. The\r\ncomplainant’s brother-in-law and sister took the pet\r\ndog - Memphi to a Veterinary Clinic. But the pet dog\r\nwas declared dead. The incident having occurred\r\nbetween 8.15 to 9.00 p.m. on 24th February 2018, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the complainant upon hearing the same from his\r\nmother, had called the police helpline who sent two\r\npolicemen to the spot who verified what had\r\nhappened and thereafter the complainant registered\r\na complaint with the Vijayanagara Police Station in\r\nCrime No.21/2018 against the driver of the Fortuner\r\ncar bearing Registration No.KA-02-MJ-5669 for\r\noffences punishable under Section 134(A & B) and\r\n187 of Motor Vehicles Act, 1988 (for short, M.V.Act)\r\nand Sections 279, 428, 429 of IPC.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. The investigating officer conducted the investigation\r\nand filed a charge sheet against the petitioner for\r\noffences under Section 134(A & B) and 187 of\r\nM.V.Act, and Sections 279, 428, 429 of IPC. It is\r\naggrieved by the same that the petitioner is before\r\nthis Court seeking for the aforesaid reliefs.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The points that would arise for determination are as\r\nunder:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1) Whether an offence under Section 134 (A\r\n& B) of the Motor Vehicles Act, 1988 would\r\nget attracted in the event of an accident\r\ninvolving a pet animal? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2) Whether an offence under Section 187 of\r\nthe Motor Vehicles Act, 1988 would get\r\nattracted in the event of an accident\r\ninvolving a pet animal?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3) Whether an offence under Section 279 of\r\nIndian Penal Code, 1860 can be alleged if\r\nan injury is caused to an animal while\r\ndriving the vehicle?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4) For an offence to be alleged under\r\nSections 428 and 429 of Indian Penal\r\nCode, 1860, there is an animus and/or\r\nintention which is required to be\r\nestablished?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5) Whether there is a requirement of this\r\nCourt to exercise its powers under Section\r\n482 of Code of Criminal Procedure to\r\nquash the proceedings?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6) What order? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Answer to Point No.1: Whether an offence\r\nunder Section 134 (A & B) of the Motor Vehicles\r\nAct, 1988 would get attracted in the event of an\r\naccident involving a pet animal?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">10.3. Section 134 of M.V.Act deals with a situation\r\nwhen any person is injured or any property\r\nof a third party is damaged. But Section 134\r\n(a) and (b) of M.V.Act do not make any\r\nprovision for a property being damaged.\r\nSection 134 (a) and (b) of M.V.Act only\r\nspeak of securing medical attention for the\r\ninjured person. In the present case, if the\r\npet/animal is regarded to be a property of a\r\nthird party, there is no offence as such made\r\nout in terms of Section 134 (a) or (b) of\r\nM.V.Act as regards the damage to such\r\nproperty of a third party. In view of the\r\nabove, I am of the considered opinion that\r\nthe said provision relates only to injury to a\r\nperson, a dog/animal not being a person </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">would not come within the ambit of Section\r\n134 (a) and (b) of M.V.Act.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10.4. Hence, I answer point No.1 by holding that\r\nthe provision of Section 134 (a) or (b) of\r\nM.V.Act would not get attracted in the event\r\nof an accident involving a pet/animal</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Answer to Point No.2: Whether an offence\r\nunder Section 187 of the Motor Vehicles Act,\r\n1988 would get attracted in the event of an\r\naccident involving a pet animal? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11.10. In view of the above discussion and analysis,\r\nI am of the considered opinion that it cannot\r\nbe said that there is any non-compliance\r\nwith the provision of Clause (a) of SubSection (1) of Section 132 or Section 133 or\r\nSection 134 requiring the applicability of\r\nSection 187 of the M.V.Act.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11.11. Hence, I answer Point No.2 by holding that\r\nin the event of an accident involving a\r\npet/animal, Section 187 of M.V.Act would not\r\nget attracted.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Answer to Point No.3: Whether an offence\r\nunder Section 279 of Indian Penal Code, 1860\r\ncould be said to have occurred if the accident\r\ninvolved a pet dog and not a human being?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12.4. In the present circumstances, the penal\r\nprovision of Section 279 of IPC if read and\r\nunderstood in its literal sense which is the\r\ninterpretation required to be given to all\r\npenal provisions, endangering a pet or\r\ncausing hurt or injury to a pet/animal would\r\nnot be one, which is punishable under\r\nSection 279 of IPC.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12.5. Hence, I answer Point No.3 by holding that\r\nan accident involving a pet dog would not\r\nattract an offence under Section 279 of IPC. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Answer to Point No.4: For an offence to be\r\nalleged under Section 428 and 429 of Indian\r\nPenal Code, 1860, there is an animus and/or\r\nintention which is required to be established?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13.15. In the present case, the only offence if at all\r\nis attributed is likely under Section 428 or\r\nSection 429 of IPC. It is required that there\r\nmust be mens rea or animus for the accused\r\nto have committed such an offence.\r\nAdmittedly, the petitioner is not known to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the complainant and/or his family members\r\nnor that the petitioner has any enmity with\r\nthe deceased pet dog Memphi. Hence, there\r\ncannot be any animus said to be existence in\r\nthe petitioner to cause the death of the said\r\npet Memphi.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13.16. I am of the considered opinion that mere\r\nknowing that there is likely to cause an\r\naccident is not sufficient. There has to be an\r\nintent to cause wrongful loss or damage.\r\nThe same not having been established\r\nexfacie, I am of the considered opinion that\r\nno offence under Section 428 and Section\r\n429 of IPC can be said to be made out.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13.17. The interpretation to the said provisions is\r\nrequired to be given as it exists and not on\r\nthe basis of the submission made by Ms.Anu\r\nChengappa that even as regards animus, the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">test of likely to cause wrongful loss or\r\ndamage cannot be applied.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13.18. Hence, I answer Point No.4 by holding that\r\nfor an offence under Section 428 or Section\r\n429 of IPC, it is required that a mens rea,\r\nanimus or intention is required to be\r\nestablished.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. Answer to Point No.5: Whether there is a\r\nrequirement of this Court to exercise its powers\r\nunder Section 482 of Code of Criminal\r\nProcedure to quash the proceedings?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14.3. The inherent powers under Section 482 of\r\nCr.P.C. are required to be exercised by this\r\nCourt in circumstances which require such\r\npower to be exercised and not in all cases.\r\nOnce such circumstances exists, that is if no\r\noffence is made out, the criminal\r\nproceedings would have to be quashed, since <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the continuation of criminal prosecution\r\nwould amount to travesty of justice.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">14.4. Having come to a conclusion that there is no\r\noffence made out under Section 134 (a) and\r\n(b) of M.V.Act, Section 187 of M.V.Act,\r\nSection 279 of IPC as also under Section 428\r\nand 429 of IPC, I am of the considered\r\nopinion that the continuation of the criminal\r\nproceedings would only be an abuse of\r\nprocess of Court and would cause injustice to\r\nthe petitioner to suffer the ignominy of a\r\ncriminal trial. Hence, I am of the considered\r\nopinion that this is a fit and proper case for\r\nexercise of powers under Section 482 of\r\nCr.P.C.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. Answer to Point No.6: What order? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>ORDER</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>i. The Criminal Petition is allowed. </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a9cdd6668575e4487f35cdc123c6e5d6.JPG', '7d66d57c5ce697094fe3b13f80100529.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-29', 1, '', '', '2022-10-28 14:17:13', '2022-10-29 08:52:21'),
(2338, 'o2ZF5wuxJCJHHBYB7pudKwzYL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'An absconder cannot claim benefit of default bail under Section 167 (2) Cr.P.C. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Hrishikesh Devdikar Vs State of Karnataka.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 2997 of 2021 decided on 21 October 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Suraj Govindaraj.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. The petitioner is accused No.18 in CC 872/2018 pending on the file of the Prl. City Civil and Sessions Judge and Special Judge for Karnataka Control and Organised Crime Act at Bengaluru.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. FIR in Crime No.221/2017 was registered with the Rajarajeshwari Nagar Police station, Bengaluru as regards the murder of one Gowri Lankesh. He was arrested on 9.01.2020 and remanded to judicial custody on 27.01.2020. The petitioner on 4.05.2020 filed an application under subsection (2) of Section 167 of Cr.P.C. seeking for statutory/default bail. Without passing any orders on the said application, the Special Court remanded the petitioner to judicial custody on 12.05.2020. It is challenging the said order, the petitioner is before this Court.<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">7. The points that would arise for determination are:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">1. Whether an accused would be entitled to the benefit under Subsection (2) of Section 167 of Cr.P.C, in the event of charge sheet having already been filed before his arrest?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. Whether the filing of an additional/supplementary charge sheet would give rise to a right for default/statutory bail under Subsection (2) of Section 167 of Cr.P.C?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. Whether the second remand could be made during COVID period without physical production of an accused?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">4. Whether the order of remand passed without passing order on application under Subsection (2) of Section 167 of Cr.P.C. is bad in law?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">5. Could a absconder claim benefit of Subsection(2) of Section 167 of Cr.P.C?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">6. What order?&nbsp;<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">9. ANSWER TO POINT NO.1: Whether an accused would be entitled to the benefit under Subsection (2) of Section 167 of Cr.P.C, in the event of charge sheet having already been filed before his arrest?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">9.5. In the present case, we are dealing with proceedings initiated under KCOCA. In terms of proviso to Subsection (2) of Section 22, the said period of 90 days can be extended up to 180 days by the said court on a report of the&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Public Prosecutor indicating the progress of the investigation and specific reasons for detention of the accused beyond a period of 90 days.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">9.6. Thus, an accused in crimes other than under KCOCA could seek for statutory/default bail in terms of proviso (2) to Subsection (2) of Section 167 of Cr.P.C, if investigation is not completed within the prescribed period of 60 or 90 days as contained therein.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">9.7. Insofar as offences under KCOCA are concerned, even in such circumstances the accused could seek for statutory/default bail if the investigation is not completed within the prescribed period under Subsection (2) of Section 167 of Cr.P.C., but however, the Public Prosecutor could make an application seeking for extension of time to complete the investigation and give the reasons for requirement of the accused to be in custody. If the same is accepted and the court were to extend the period of investigation subject to a maximum of 180 days, then the benefit under&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Subsection (2) of Section 167 of Cr.P.C. can only be claimed subject to time period fixed by the Special Court in orders passed on such application.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">9.14.The decision in Mithabhai Pashabhai Patel’s12 case relating to applicability of&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Subsection (2) of Section 167 and the consideration thereof is a matter of law. The decision in Tula Ram’s13 case is relating to postponement of issuance of summons and the enquiry to be held under Section 202 which is not applicable to the present case. The decision in Gulavar Singh’s case relatable to the aspect of taking cognizance is again not applicable for the reasons that investigation has been completed.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">9.15.In view of the above I answer point No.1 by holding that an accused would not be entitled to the benefit under Subsection (2) of Section 167 of Cr.P.C, in the event of charge sheet having already been filed before his arrest.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">10. ANSWER TO POINT NO.2: Whether the filing of an additional/supplementary charge sheet would give rise to a right for default/statutory&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">bail under Subsection (2) of Section 167 of Cr.P.C?</span><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">10.4. In the first situation when the concerned accused is implicated in the charge sheet, the investigation has come to an end on the existing material and the concerned accused has been charged of the offences contained in the charge sheet, though in the event of further investigation being carried on as regards other accused, as regards the accused against whom a charge sheet has already been laid, supplementary charge sheet/s could be laid. Thus, once a charge sheet is filed within the time period prescribed under Subsection (2) of Section 167 of Cr.P.C, or as may be extended in terms of proviso to Subsection (2) of Section 22 of KCOCA, the concerned accused would not be entitled to default/statutory bail.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">10.5. In the second case, where a charge sheet has not been laid against the concerned accused, but investigation is going on, in such event the rigour of Subsection (2) of Section 167 of Cr.P.C, would apply, insofar as offences other than that covered under KCOCA, as regards offences under KCOCA it would be governed by any order passed under the proviso to Subsection (2) of Section 22 of KCOCA. The investigation not being completed within the period mentioned under Subsection (2) of Section 167 of Cr.P.C., then concerned accused could seek for default/statutory bail. If the accused has been tried for offences under KCOCA, it is only after the expiry of the period, if any extended by the Special Court under proviso of Subsection (2) of Section 22 of KCOCA that the right to seek for statutory/default bail would arise.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">11. ANSWER TO POINT NO.3: Whether the second remand could be made during COVID period without physical production of an accused?&nbsp;<br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">11.1. The COVID period or the SOP applicable during that period is not relevant in the present case for the reason that the petitioner in this case was not remanded for the second time but was in judicial custody subsequent to the filing of the charge sheet. In such a situation, the accused only had an option to seek for and obtain regular bail. Once a charge sheet has been filed, there is no question of remand as envisaged under Subsection (2) of Section 167 of Cr.P.C. or proviso to subsection (2) of Section 167 of Cr.P.C. or the proviso to subsection (2) of Section 22 of KCOCA.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">11.2. It is only in the event of the investigation not being completed, the question of second remand or third remand, etc, would arise where the aforesaid provisions would apply.<br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">12. ANSWER TO POINT NO.4: Whether the order of remand passed without passing order on application under Subsection (2) of Section 167 of Cr.P.C. is bad in law?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">12.2. In the present case, a charge sheet having already been laid and the petitioner being implicated in the offence, the question of statutory/default bail not being applicable is considered and answered hereinabove. Hence, the question of the application for default/statutory bail considered prior to remand would also not arise the investigation having been completed.&nbsp;<br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">13. ANSWER TO POINT NO.5: Could a absconder claim benefit of Sub section(2) of Section 167 of Cr.P.C?<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-size: 12pt;\">&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13.4. In my considered opinion as dealt with hereinabove, the fact of the accused absconding or delaying the investigation during the period of he being absconding would not be relevant for consideration of application Subsection (2) of Section 167 of Cr.P.C.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">13.5. It is after the accused is arrested and available in custody, the investigation is required to be completed in a time bound manner as contained in Subsection (2) of Section 167 of Cr.P.C.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">14. ANSWER TO POINT NO.6: What order?<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">14.1. In view of the answer to various points which have been raised for consideration, I am of the considered opinion that in the present case, charge sheet having been laid against the petitioner even prior to the arrest of the petitioner, the petitioner having been arraigned as an accused and charged with certain offences punishable under 302, 120(B), 114, 118, 109, 201, 203, 204, 35 IPC &amp; 25 (1), 25(1B), 27(1) of Indian Arms Act and Section 3(1)(i), 3(2), 3(3), 3(4) of KCOCA, I am of the considered opinion that the benefit under&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Subsection (2) of Section 167 of Cr.P.C. would not arise.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">ORDER</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">The petition stands dismissed.&nbsp;</span></p>', '8188e4c033f72d4b27ab738fddee450e.JPG', 'df090b53536ea7338f41004e1dd7e7b7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-27', 1, '', '', '2022-10-27 14:44:44', '2022-10-27 09:15:34'),
(2339, 'hlpgc3fQSUAkmrXVqxR6kcQze', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Refusal to pay cost of the arbitration by a party cannot be a ground not to appoint arbitrator if the other party is ready to pay entire arbitration cost. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Campus Students Communities Pvt Ltd Vs M/S Bagamane Enterprises.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CMP 461 of 2022 decided 23 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. There being certain disputes between the parties, the\r\npetitioner issued a dispute notice on 30.11.2021 and\r\nsubsequently invoked arbitration clause vide notice\r\ndated 18.01.2022 and nominated its arbitrator. Said\r\nnotice having been served, the respondent not\r\nhaving concurred, the petitioner is before this Court.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The existence of the arbitration clause is not in\r\ndispute. There being unresolved disputes between\r\nthe parties is also not in question. The only aspect\r\nis as regards cost of arbitration.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. In terms of first proviso to Subsection (2) of Section\r\n38 of the Arbitration and Conciliation Act, 1996 (for\r\nshort ‘A&C Act), if one of the party fails to pay his\r\nshare of the deposit the other party may pay the\r\nsame and the said payment shall be the cost of the\r\nproceedings which can be considered in terms of\r\nSection 31A of the A&C Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. In the present case, the respondent not willing to\r\nmake payment of the cost of the arbitration and the\r\npetitioner having come forward to make payment of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cost of arbitration, both on behalf of the petitioner\r\nand respondent, insofar as the claim of the petitioner\r\nis concerned, there being no counter claim proposed\r\nto be filed by the respondent, I pass the following:\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>ORDER</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\ni. The petition is allowed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fadc10ffc30a7ca24cae1cbeb2ddcd08.JPG', '7787383194a42b2090acf5cbfa599eed.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-01', 1, '', '', '2022-10-27 15:04:36', '2022-11-01 04:00:34');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2340, 'QCpAbgVQTNqGl4xNjjCGT1t8c', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Legal Metrology (Packed Commodities) Rules, 2011. When liquid item is sold, the declaration in terms of weight/measures can be done either by weight or volume. Karnataka high Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Asian Paints Limited and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 5119 of 2017 decided on 28 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. A private complaint under Section 200 of the Code of\r\nCriminal Procedure, 1973 (hereinafter referred to as\r\n\'Cr.P.C.\' for short) came to be filed in the Court of\r\nthe Additional Civil Judge, JMFC, Puttur and came to\r\nbe numbered as PCR.No.9/2016, alleging that when\r\na raid was conducted in the premises of\r\nM/s. Laxmi Decors being a proprietory concern of\r\none Mr.Gourav Nayak, there were certain products,\r\nnamely sealants, which were found in the said\r\npremises which were not properly described in terms\r\nof Rule 12(2)(a) of the \'Legal Metrology (Packed\r\nCommodities) Rules, 2011 (hereinafter referred to as\r\nthe \'Packaging Rules\' for short).\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The allegation was that the product being liquid in\r\nnature. The same would have to be described by\r\nmass and the weight would have to be declared on\r\nthe package. Since the weight was not declared and\r\nvolume in terms of millilitres, which was declared, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">there is a violation of the provisions of Rule 12(1)(a)\r\nof the Packaging Rules.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. On the complaint being filed, cognizance was taken\r\nfor the offences under Section 36 of the Legal\r\nMetrology Act, 2009 and summons were issued by\r\nthe Magistrate on 14.06.2016. It is aggrieved by the\r\nsame, the petitioner is before this Court.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. The points that would arise for determination are:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12.1.When a commodity in liquid form is sold, is it\r\nrequired to be described in terms of weight/mass\r\nor could the description being in terms of volume?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12.2.Whether the compounding of the offence by one of\r\nthe accused would disentitle the other accused\r\nfrom filing a proceeding under Section 482 of the\r\nCr.P.C?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12.3.Whether the Magistrate could have issued\r\nsummons to an accused residing outside the\r\njurisdiction without complying with the\r\nrequirement of Section 202 of Cr.P.C?\r\n12.4.What order?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. Answer to Point No.1: When a commodity in\r\nliquid form is sold, is it required to be described\r\nin terms of weight/mass or could the\r\ndescription being in terms of volume?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">14.8.Thus, I answer point No.1 by holding that when\r\nthere is a liquid chemical or liquid which has\r\nbeen sold, the declaration in terms of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">weight/measures could be done either by\r\nweight or volume in terms of item No.16 of the\r\nFourth Schedule as also in terms of Rule\r\n12(2)(d) of the Packaging Rules.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. Answer to Point No.2: Whether the\r\ncompounding of the offence by one of the\r\naccused would disentitled the other accused\r\nfrom filing a proceeding under Section 482 of\r\nthe Cr.P.C?</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">15.3.In the present case, having come to the\r\nconclusion that there is no violation which has\r\nbeen committed by the petitioners of the\r\nPackaging Rules and the description of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">product in terms of volume is proper and\r\ncorrect. The compounding of the alleged\r\nviolation and the payment of the compounding\r\nfee thereon by one of the accused cannot be\r\nsaid to come in the way of the petitioners\r\nchallenging the proceedings which ought not to\r\nhave been initiated in the first phase.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15.4. I answer to point No.2 by holding that even if\r\none of the accused were to compound an\r\noffence in the event of any grounds being\r\navailable, the other accused could always\r\napproach this court in a proceeding under\r\nSection 482 of Cr.P.C.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. Answer to Point No.3:- Whether the Magistrate\r\ncould have issued summons to an accused\r\nresiding outside the jurisdiction without\r\ncomplying with the requirement of Section 202\r\nof Cr.P.C?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16.4.In the present case, neither an enquiry is held\r\nnor a reasoned order is passed as to why\r\nsummons ought to be issued to the petitioners.\r\nAs such, I am of the considered opinion that\r\nthere is a violation of Section 202 of Cr.P.C.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. Answer to point No.4: What Order?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17.1.In view of my above findings, I am of the\r\nconsidered opinion that the above petition is\r\nrequired to be allowed. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>a) The petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '53d2451dd9664565595071b4f396b6c4.JPG', '44476a3904741807426bf5377d7e3e2c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-28', 1, '', '', '2022-10-27 15:12:38', '2022-10-28 10:30:17'),
(2341, 'yJp8xzkv7KRvUcF4ImxebZWvr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Arbitration and Conciliation Centre being run under the aegis of the High Court of Karnataka  can appoint an Arbitrator if any of the parties individually or both the parties jointly were to approach the centre for such appointment. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Caterpillar Financial Services India Vs Radheshyam Singh and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Misc. Petition 599 of 2022 decided on 30 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. In all the above matters, the petitioner being one and the\r\nsame is before this Court seeking for appointment of an\r\nArbitrator in terms of Clause 21 of the Loan and Security\r\nAgreement entered into between the petitioner and the\r\nrespondents on different dates.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. On the basis of the pleadings filed and submissions made,\r\nthe points that would arise for determination are:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n6.1. Whether the Arbitration and Conciliation\r\nCentre run under the aegis of the High Court\r\nof Karnataka can appoint an Arbitrator if a\r\nparty were to approach it since the arbitration\r\nclause refers to the said center? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>6.2. Whether reservation of rights to initiate\r\nproceedings under the SARFAESI Act would\r\ncome in the way of the petitioner exercising\r\nhis rights under Clause 21.2 of the\r\nagreement?\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>6.3. Whether the suit, petition or reference\r\nmentioned in Clause 21.4 of the agreement\r\nwould prevent the invocation of the\r\narbitration clause in terms of Clause 21.2 of\r\nthe agreement?\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>6.4. Whether the arbitration proceedings would be\r\ninitiated at Bengaluru when the respondents\r\nare residing outside Bengaluru and the\r\nproperty subject matter of the agreement is\r\nsituated outside Bengaluru?\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6.5. What order?</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Answer to point No. 1 - Whether the Arbitration and\r\nConciliation Centre run under the aegis of the High\r\nCourt of Karnataka can appoint an Arbitrator if a\r\nparty were to approach it since the arbitration\r\nclause refers to the said center? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8.17. Hence, I answer point No.1 by holding that if\r\nthe Arbitration clause makes the Rules\r\nApplicable, then the Arbitration and\r\nConciliation Centre, which is a Designated\r\nArbitral Institution and an initiative of and\r\nbeing run under the aegis of the High Court of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Karnataka, can appoint an Arbitrator if any of\r\nthe parties individually or both the parties\r\njointly were to approach the centre for such\r\nappointment. Since the arbitration clause\r\nrefers to the rules of the said centre the\r\nprocedure to be followed for such\r\nappointment is in terms of the Rules of 2012.\r\nIf only one of the parties were to approach the\r\ncentre, the centre cannot insist on a joint\r\nmemorandum.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Answer to point No.2 - Whether reservation of\r\nrights to initiate proceedings under the SARFAESI\r\nAct would come in the way of the petitioner\r\nexercising his rights under Clause 21.2 of the\r\nagreement?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">9.1. A perusal of Clause 21.3 of the agreement would\r\nindicate that the reservation is made insofar as\r\ninvocation of the rights under the SARFAESI Act,\r\nthe same would not hold this Court any longer on\r\naccount of the submission made by the learned\r\ncounsel for the petitioner that since the petitioner\r\nhas invoked the arbitration clause the petitioner </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">would not approach the concerned forum under the\r\nSARFAESI Act.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9.2. Be that as it may, whenever any arbitration clause\r\nis contained in any agreement, the Court under\r\nSection 11 of the Act would have to lean towards\r\nenforcing the arbitration agreement rather than\r\nagainst such enforcement. Arbitration being an\r\nalternative dispute resolution methodology to assist\r\nand encourage resolution of a dispute, the parties\r\nonce have agreed upon Arbitration to be the\r\npreferred means of resolution at an undisputed\r\npoint of time. The parties are held to be bound by\r\nsuch a clause.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9.4. I answer Point No.2 by holding that the\r\nreservation of rights to initiate proceedings\r\nunder the SARFAESI Act would not come in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the way of the petitioner exercising its rights\r\nunder Clause 21.2 of the agreement, since the\r\nPetitioner has undertaken that no such\r\nproceedings under SARFAESI would be\r\ninitiated.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Answer to Point No.3 - Whether the suit, petition or\r\nreference mentioned in Clause 21.4 of the\r\nagreement would prevent the invocation of the\r\narbitration clause in terms of Clause 21.2 of the\r\nagreement?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10.1. The further reference to Clause 12.4 of the\r\nagreement, as could be seen is relating to any\r\nsuit/petition/reference and other filings. A reading\r\nof the said clause indicates that the filings referred\r\nto are those under the Act of 1996.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">10.2. Thus, I am of the considered opinion that this\r\nClause is restricted to filings in court made under\r\nthe said Act of 1996 like that under Section 9 of the\r\nAct of 1996 seeking for interim relief, under Section\r\n34 of the Act of 1996 challenging an award, any\r\nproceeding under Section 37 of the Act of 1996 </span><span style=\"font-size: 1rem; font-family: var(--bs-font-sans-serif);\">etc., which would have to be made before the\r\nparticular Court having jurisdiction.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10.4. I answer Point No.3 by holding that the words\r\nsuit, petition or reference mentioned in Clause\r\n21.4 of the agreement are incidental to\r\nArbitration proceedings which would not\r\nprevent the invocation of the arbitration\r\nclause in terms of Clause 21.2 of the\r\nagreement</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Answer to point No. 4 - Whether the arbitration\r\nproceedings could be initiated at Bengaluru when\r\nthe respondents are residing outside Bengaluru and\r\nthe property subject matter of the agreement is\r\nsituated outside Bengaluru?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">11.6. If the requirement and rigours of CPC relating to\r\nexecution proceedings require the execution\r\nproceedings to be transferred to any particular\r\nCourt having territorial or pecuniary jurisdiction to\r\nenforce the decree then an application to that\r\nextent would have to be made by the petitioner to\r\nthe Execution Court. Needless to say that if the\r\nrequirement of the CPC are not satisfied in an\r\nexecution proceedings filed in Bengaluru, the\r\nExecution Court cannot exercise any jurisdiction or\r\npass any orders for the attachment or sale. The </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">same being governed by rigours of the CPC more\r\nparticularly, Order XXI.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11.7. Hence, I answer point no. 4 by holding that\r\nthe venue and seat being at Bengaluru, the\r\nArbitration and Conciliation would have to be\r\nheld at Bengaluru. Execution proceedings\r\nwould also have to be filed at Bengaluru. The\r\nproceedings of the execution would be\r\ngoverned by the CPC.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Answer to point No. 5 - What order?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12.3. In view of the answers above, I have come to the\r\nconclusion that there is a valid and binding\r\narbitration clause and that the parties have agreed\r\nfor arbitration to be conducted in terms of the said\r\nRules of 2012. The petitioner already being before\r\nthis Court instead of relegating them to the remedy\r\nunder Rule 9(1) and Rule 15 of the said Rules of\r\n2012, I pass the following</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>a. The petitions are allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9880228630348476a2152242d1ba7739.JPG', 'c1e580445f1659789a8022bfcc164e83.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-31', 1, '', '', '2022-10-27 15:27:11', '2022-10-31 12:25:38'),
(2342, 'RnJeaWZqBHmNfrh4W8OieBWzi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When a document is fabricated before the Sub-Registrar, bar under Section 195(1)(a)(i) Cr.P.C applies only to proceedings under Section 177 and not under Sections 419, 420, 468 and 471, IPC.  Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Y.N. Sreenivasa and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 15441 of 2019 decided on 14 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Respondent Nos.2, 3 and 4 filed a complaint on\r\n17.12.2018 at respondent No.1-Sanjay Nagar Police\r\nStation alleging that petitioner No.1 and the husband\r\nof respondent No.2 were the owners of the land in\r\nSy.No.26/5 measuring 1 acre 11 guntas which was\r\nacquired by the Bangalore Development Authority,\r\nan extent of 14 guntas have been left out for the\r\nland owners i.e., petitioner No.1, husband of\r\npetitioner No.2, petitioner Nos.3 and 4 who are\r\nbrother and sister of petitioner No.1. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. It is alleged that the gift deeds were registered by\r\nthe Sub-Registrar on the basis of forged and\r\nfabricated khatha certificate as also forged and\r\nfabricated tax-paid certificate, wherein the name of\r\nthe husband of respondent No.2 which was\r\nmentioned earlier, has been deleted as if to contend\r\nthat petitioner No.1 is the sole owner of the property. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. The points that would arise for determination of this\r\nCourt are:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Whether a private individual would be\r\nbarred from initiating proceedings under\r\nSections 419, 420, 468 and 471 of IPC on\r\naccount of the fabrication having occurred\r\nbefore a Sub-Registrar, which is an\r\noffence under Section 177 of IPC and\r\nwould the same bring into force the bar\r\nunder Section 195(1)(a)(i) of Code of\r\nCriminal Procedure?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Whether a private individual said to be\r\naffected by any forgery can initiate a\r\ncriminal complaint for the offences\r\npunishable under Sections 419, 420, 468,\r\n471 of IPC? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. What order?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Answer to Point No.1: Whether a private\r\nindividual would be barred from initiating\r\nproceedings under Sections 419, 420, 468 and\r\n471 of IPC on account of the fabrication having\r\noccurred before a Sub-Registrar, which is an\r\noffence under Section 177 of IPC and would the\r\nsame bring into force the bar under Section\r\n195(1)(a)(i) of Code of Criminal Procedure?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. I’am of the considered opinion that the embargo\r\nunder Section 195(1)(a)(i) of Cr.P.C. is only as\r\nregards offence under Section 172 to 188 of IPC. In\r\nthe present case, there is no complaint which has\r\nbeen filed insofar as an offence under Section 177 of\r\nIPC is concerned. The Sub-Registrar is not the\r\ncomplainant. The present complaint has been filed by\r\npersons who are affected personally by the\r\nregistration of gift deeds and it is on that basis that it\r\nis alleged that the offences under Section 419, 420,\r\n468 and 471 of IPC have been committed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. As held above, it is only when criminal proceedings\r\nfor offence under Section 177 of IPC is initiated that\r\nthe requirement under Section 195(1)(a)(i) of\r\nCr.P.C. would come into play. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. The same in my considered opinion would not apply\r\nwhen a complaint has been filed by the complainant\r\nas regards offences committed against him/her.\r\nThus, I answer Point No.1 by holding that a private\r\nindividual would not be barred from initiating\r\nproceedings under Section 419, 420, 468 and 471 of\r\nIPC on account of fabrication having occurred before\r\na Sub-Registrar, which is a separate offence under\r\nSection 177 of IPC. The requirement under Section\r\n195(1)(a)(i) of Cr.P.C., would only apply when\r\ncomplaint is not as regards an offence under Section\r\n177 of the IPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. Answer to Point No.2: Whether a private\r\nindividual said to be affected by any forgery\r\ncan initiate a criminal complaint for the\r\noffences punishable under Sections 419, 420,\r\n468, 471 of IPC?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">21.1. In view of my answer to Point No.1, it is clear\r\nthat any person who is affected by any forgery\r\nwhich in this case, the complainants claim to be\r\non account of gift deeds being registered on the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">basis of a forged katha certificate and tax paid\r\nreceipts in furtherance of which a sale deed has\r\nbeen executed depriving the complainants of\r\ntheir right in the property, the genesis of the\r\ngift deeds and the sale deed being the\r\nfabrication of a katha certificate and tax paid\r\nreceipts irrespective of a suit being filed for\r\ndeclaration of the gift deed and sale deed not\r\nbeing binding on the complainant, a criminal\r\ncomplaint for offences punishable under Section\r\n419, 420, 468 and 471 of IPC would be\r\nmaintainable.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">21.2.The reliefs which are sought for in the said suit\r\nare for the purposes of cancellation and/or\r\ndeclaration as regards the validity and\r\nbindingness of the gift deed and the sale deed,\r\nwhich cannot be granted in a criminal\r\nproceeding. The Civil Court cannot punish the\r\naccused for criminal offences of forgery,\r\ncheating etc. Hence, though both the</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">proceedings arise from the very same action, I\r\nam of the considered opinion that both relating\r\nto different aspects, both a suit and criminal\r\ncomplaint would be maintainable and any\r\nindividual who is affected by any forgery or\r\ncheating or like can initiate a criminal complaint\r\nfor such offences</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. Answer to Point No.3: What order?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. The Writ Petition is dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'bf1916497222ed211302cbb4dd04e7b6.JPG', '6cc64b5ff45def4a50f119036f59eb2e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-28', 1, '', '', '2022-10-27 15:36:30', '2022-10-28 03:22:23');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2346, 'e5u4oU63V0Deggh1klpeu0F5A', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mines And Minerals (Development And Regulation) Act, 1957. Geologist can initiate criminal proceedings under Mines and Minerals for the offences under the Act. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S SVB Stone Crushers Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 22388 of 2019 decided on 14 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The Geologist filed a private complaint with the Prl.\r\nCivil Judge and JMFC, Kunigal, Tumkur district on\r\n19.2.2019 under Section 200 of Cr.P.C. which came\r\nto be registered as PCR No.39/2019 alleging offences\r\nunder Section 4, 4(1A), 21, 22 and 23 of Mines And\r\nMinerals (Development And Regulation) Act, 1957\r\n[‘MMDR Act’ for short] and Rule 3, 42, 43 and 43A of\r\nKarnataka Minor Mineral Rules, 1994 [‘KMM Rules’\r\nfor short] as also rule 3(2) of Karnataka Regulation\r\nof Stone Crushers Act, 2011 [‘Stone Crusher Act of\r\n2011’ for short] read with Amendment Rules 2013.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The points that arise for determination of this Court\r\nare:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Whether the geologist is authorised to\r\ninitiate criminal proceedings under\r\nMines and Minerals (Development and\r\nRegulation)Act, 1957?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Whether criminal proceedings could be\r\ninitiated if any person were to\r\nmanufacture M-sand without obtaining\r\nlicence under Form-C under the\r\nKarnataka Regulation of Stone Crushers\r\nAct, 2011?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Whether the person manufacturing Msand can claim that since there is only\r\nmanufacture of M-sand there would be\r\nno requirement for a licence in relation\r\nto building stone and or transport\r\nthereof, as a corollary M-sand which is\r\nbeing manufactured does not come\r\nunder the definition of minor mineral\r\nhence no licence is required?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. What order? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. ANSWER TO POINT NO.1: Whether the\r\ngeologist is authorised to initiate criminal\r\nproceedings under Mines and Minerals\r\n(Development and Regulation) Act, 1957? </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9.2. A perusal of the above notification indicates\r\nthat a geologist belonging to department of\r\nMines and Geology shall within his jurisdiction\r\nbe entitled to initiate proceedings under the\r\nMMDR Act and KMCC Rules.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9.3. Thus, I answer Point No.1 holding that a\r\ngeologist is authorized to initiate criminal\r\nproceedings under the MMDR Act, within his\r\nown jurisdiction. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. ANSWER TO POINT NO.2:Whether criminal\r\nproceedings could be initiated if any person\r\nwere to manufacture M-sand without obtaining <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">licence under Form-C under the Karnataka\r\nRegulation of Stone Crushers Act, 2011?</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10.3. In the present case, in the event of any one\r\ncontravening the condition of licence, action\r\ncan be taken in terms of Section 16 of the Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10.4. The contention of Sri.R.G.Kolle, learned counsel\r\nfor the petitioner is that since no licence has\r\nbeen issued, the question of making applicable\r\nthe Stone Crushers Act of 2011 is not\r\npermissible, is not acceptable by me. When\r\nthere is a prohibition for stone crushing without\r\na licence, it is not permissible for a person who\r\ncarries out stone crushing to thereafter contend\r\nthat since there is no licence which has been\r\nissued even though he has carried out stone\r\ncrushing, no action could be taken by a\r\nlicensing authority merely because it has not\r\nissued any licence.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10.5. When there is a violation of the prohibition\r\nimposed under Stone Crushers Act of 2011 by\r\nthe petitioner, building stones having been\r\ncrushed by the petitioner, without a licence\r\nhaving been obtained as required under the\r\nStone Crushers Act of 2011 as afore discussed,\r\npenal action could be taken against such an\r\noffender.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10.6. Hence, I answer Point No.2 by holding that the\r\ncriminal action could be initiated if any person\r\nwere to manufacture M-sand by crushing\r\nbuilding stone or any other stone without\r\nobtaining licence in Form-C under the Stone\r\nCrushers Act of 2011.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. ANSWER TO POINT NO.3: Whether the person\r\nmanufacturing M-sand can claim that since\r\nthere is only manufacture of M-sand there\r\nwould be no requirement for a licence in\r\nrelation to building stone and or transport\r\nthereof, as a corollary M-sand which is being\r\nmanufactured does not come under the\r\ndefinition of minor mineral hence no licence is\r\nrequired? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>11.1. The alternative submission of Sri.R.G.Kolle,\r\nlearned counsel for the petitioner is that the\r\npetitioner has only manufactured M-sand by\r\ncrushing a building stone, M-sand is not a\r\nminor mineral and therefore, there is no\r\noffence which has been committed under the\r\nStone Crushers Act of 2011 and MMDR Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11.2. This being a distinct offence under the MMDR\r\nAct, then that under the Stone Crushers Act of\r\n2011, I am of the considered opinion that mere\r\nmanufacturing M-sand would not amount to\r\nviolation of MMDR Act, however since the\r\nbuilding stone is used for manufacture of Msand, it is required that proper permit/licence\r\nas regards the building stone and documentary\r\nproof relating thereto are required to be made\r\navailable by the petitioner. The petitioner has\r\nto place on record as regards from where he\r\nhas got the building stone or any stone used for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">manufacturing of M-sand and if those\r\ndocuments are in order, no offence could be\r\nsaid to be made out. However, if the building\r\nstone or any other stone is used without\r\nnecessary documents for manufacturing of Msand, the same would continue to be an offence\r\nunder the MMDR Act. This is a matter which\r\nrequires trial.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11.3. It is, therefore, left open to the petitioner to\r\nplace on record before the trial Court the\r\ndocuments relating to the building stone and/or\r\nany other material used for the purpose of\r\nmanufacturing M-sand including necessary\r\ntransport permits to transport the said building\r\nstone or any other stone to the stone crusher of\r\nthe petitioner.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11.4. Thus, I answer point No.3 accordingly</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. ANSWER TO POINT NO.4: What order?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In view of the above discussion as regards points\r\nNo.1 to 3 above, I am of the considered opinion that\r\nthere are no grounds made out for quashing of the\r\ncriminal proceedings.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petition stands dismissed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3df1e15d219f4d0b3c2c34a0ca54b48d.JPG', 'b920e83684f052f05c668736ddcaca01.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-31', 1, '', '', '2022-10-28 15:14:45', '2022-10-31 03:20:47'),
(2347, 'O6ebbbxRZOAdYRHPjaxH5i2AT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Legal Metrology (Packed Commodities) Rules, 2011. Compounding of an offence by one accused will not prevent the other accused from seeking quashment of the proceedings. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Asian Paints Limited and others Vs State of Karnataka and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Criminal Petition 5119 of 2017 decided on 28 September 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Suraj Govindaraj.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. A private complaint under Section 200 of the Code of Criminal Procedure, 1973 (hereinafter referred to as \'Cr.P.C.\' for short) came to be filed in the Court of the Additional Civil Judge, JMFC, Puttur and came to be numbered as PCR.No.9/2016, alleging that when a raid was conducted in the premises of M/s. Laxmi Decors being a proprietory concern of one Mr.Gourav Nayak, there were certain products, namely sealants, which were found in the said premises which were not properly described in terms of Rule 12(2)(a) of the \'Legal Metrology (Packed Commodities) Rules, 2011 (hereinafter referred to as the \'Packaging Rules\' for short).</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. The allegation was that the product being liquid in nature. The same would have to be described by mass and the weight would have to be declared on the package. Since the weight was not declared and volume in terms of millilitres, which was declared, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">there is a violation of the provisions of Rule 12(1)(a) of the Packaging Rules.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. On the complaint being filed, cognizance was taken for the offences under Section 36 of the Legal Metrology Act, 2009 and summons were issued by the Magistrate on 14.06.2016. It is aggrieved by the same, the petitioner is before this Court.</span><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">12. The points that would arise for determination are:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">12.1.When a commodity in liquid form is sold, is it required to be described in terms of weight/mass or could the description being in terms of volume?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">12.2.Whether the compounding of the offence by one of the accused would disentitle the other accused from filing a proceeding under Section 482 of the Cr.P.C?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">12.3.Whether the Magistrate could have issued summons to an accused residing outside the jurisdiction without complying with the requirement of Section 202 of Cr.P.C? 12.4.What order?<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">14. Answer to Point No.1: When a commodity in liquid form is sold, is it required to be described in terms of weight/mass or could the description being in terms of volume?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">14.8.Thus, I answer point No.1 by holding that when there is a liquid chemical or liquid which has been sold, the declaration in terms of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">weight/measures could be done either by weight or volume in terms of item No.16 of the Fourth Schedule as also in terms of Rule 12(2)(d) of the Packaging Rules.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. Answer to Point No.2: Whether the compounding of the offence by one of the accused would disentitled the other accused from filing a proceeding under Section 482 of the Cr.P.C?</span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">15.3.In the present case, having come to the conclusion that there is no violation which has been committed by the petitioners of the Packaging Rules and the description of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">product in terms of volume is proper and correct. The compounding of the alleged violation and the payment of the compounding fee thereon by one of the accused cannot be said to come in the way of the petitioners challenging the proceedings which ought not to have been initiated in the first phase.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15.4. I answer to point No.2 by holding that even if one of the accused were to compound an offence in the event of any grounds being available, the other accused could always approach this court in a proceeding under Section 482 of Cr.P.C.</span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">16. Answer to Point No.3:- Whether the Magistrate could have issued summons to an accused residing outside the jurisdiction without complying with the requirement of Section 202 of Cr.P.C?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">16.4.In the present case, neither an enquiry is held nor a reasoned order is passed as to why summons ought to be issued to the petitioners. As such, I am of the considered opinion that there is a violation of Section 202 of Cr.P.C.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">17. Answer to point No.4: What Order?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">17.1.In view of my above findings, I am of the considered opinion that the above petition is required to be allowed. <br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">ORDER:</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">a) The petition is allowed. </span></p>', '6db67174841dbec229348849fa31cb49.JPG', 'aced16284f6e6165995f95889a622391.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-29', 1, '', '', '2022-10-28 15:32:30', '2022-10-29 08:38:55'),
(2348, '4QcASXXRVSpLS3uPidokneM7j', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'There must be a specific allegation that the action complained of amounts to interference or attempt to interfere with the free exercise of electoral right by undue influence at an election to constitute offence under Section 171C,IPC.Karnataka High Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rizwan Arshad Vs State of Karantaka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 12101 of 2022 decided on 27 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Sunil Dutt Yadav.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The case that is made out is that the defacto\r\ncomplainant, who was the official of the flying squad\r\nentrusted with duties to ensure free and fair election, has\r\nmade out information to the police authorities to the effect\r\nthat on 13.04.2019 at about 5 p.m., the officer of the flying\r\nsquad noticed gathering of large number of people at\r\nKodandarama Temple Circle in connection with palanquin\r\nprocession in light of Ramanavami festival. It was noticed\r\nthat the petitioner who was a candidate for the Lok Sabha\r\nelection and his followers were campaigning without having\r\ntaken permission. Accordingly, for campaigning without\r\ntaking permission, request was made to the police\r\nauthorities to lodge FIR and take appropriate action. FIR\r\ncame to be lodged as regards the said incident. Requisition\r\nwas made to the Magistrate on 15.04.2019 and charge\r\nsheet was filed for the offences punishable under Sections\r\n171-C and 171-I of IPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. On perusal of the information made out to the\r\npolice authorities as well as the report after investigation as\r\nextracted above would make out that the subject matter of\r\ncomplaint relates to campaigning near Kodandarama\r\nTemple Circle, where there was palanquin procession in\r\nconnection with Ramanavami festival. The specific allegation\r\nis that campaigning was made in violation of the Election\r\nCode of Conduct without obtaining permission. The\r\nreference to Sections 171-C and 171-I of IPC as extracted\r\nabove would make out an offence that has no correlation\r\nwith the information that was made out to the police\r\nauthorities at the first instance and also as regards to the\r\nfinal report submitted after investigation.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Though learned counsel for the State would\r\ncontend that offence under Section 171-C atleast is made <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">out from the facts, it must be seen that for the offence\r\nunder Section 171-C of IPC, there must be a specific\r\nallegation that the action complained of must amount to\r\ninterference or attempt to interfere with the free exercise of\r\nelectoral right by way of exercising undue influence at an\r\nelection.\r\n8. The nature of interference which may constitute\r\nthe offence must be similar to that as enumerated under\r\nSection 171-C (2)(a) and (b). In the present case, charge\r\nsheet also does not make out any allegation relating to\r\nundue influence and the only mention made in column No.7\r\nof the charge sheet is as regards violation of election code\r\nof conduct by campaigning without permission. There is no\r\ncorrelation to the facts constituting the subject mater of\r\ninformation made out to the police authorities as well as the\r\nfinal report with the offence under section 171-C of IPC.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. Accordingly, it is clear that investigation has\r\nbeen made out in a very casual manner and no sincere\r\neffort is made to ensure that the accused are charged with </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respect to the specific offence relating to violation of\r\nelection code of conduct. It is also noticed that the\r\nprocedure under Section 155 of Cr.P.C. has also not been\r\nfollowed. Accordingly, the proceedings in its entirety in\r\nC.C.No.57657/2019 pending on the file of the XXIX\r\nAdditional Chief Metropolitan Magistrate, Mayohall, is set\r\naside.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> The petition is disposed off.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ffc53d54ecd73eea7c94cd7f613f44b2.JPG', '07b6bfba3ff6c27513c0815f52f145e2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-29', 1, '', '', '2022-10-28 15:47:54', '2022-10-29 11:27:45');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2349, 'iKrP4EJTE9wLjwLPA8bTTJ1h4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Judiciary. \'\'Woodpeckers inside pose a larger threat than the storm outside\'\'. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Deputy Commissioner and Special land acquisition officer Vs M/S S.V. Global Mill Limited.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Review Petition 328 of 2021 decided on 21 October 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice B. Veerappa and Justice K. Natarajan.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">3. On 7.2.2013, the review petitioner being the Special Land Acquisition Officer issued a preliminary notification under the provisions of Sections 17(2) and 17(4) r/w Section 4(1) of the 1894 Act to acquire 3.16 acres of land out of 24 acres 4 guntas in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">property bearing No.59/1 sitauted at Binny Mill Road, Bengaluru North taluk, within the BBMP limits, invoking special powers in cases of urgency and same was published in the official gazette on 14.2.2013 and was affixed at convenient places near the land indicating the possession being taken without hearing the objections as contemplated under Section 5A of the 1894 Act and also given wide publications in the newspapers. Accordingly on 18.11.2013 final notification under section 6(1) r/w Section 17(2) of the 1894 Act was issued and possession of the land was secured. On 1.1.2014, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (\'2013 Act\' for short) came into force. On 8.10.2014 the award came to be passed under the provisions of the 2013 Act.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"> 4. On 29.4.2015, the respondent objected the award passed by the present review petitioner and thereby filed an application for reference. The Special Land Acquisition officer (\'SLAO\' for short) after receipt of the said application, has made a reference under Section 64(1) of the 2013 Act and the reference authority registered the same in LAC No.33/2017. The reference authority <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">considering both the oral and documentary evidence on record by the judgment and award dated 29.10.2018 allowed the reference in part holding that the respondent is entitled for market value of the acquired land at the rate of Rs.8624/- per square feet and also compensation under Section 29 of the 2013 Act with all statutory benefits.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">22. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that would arise for our consideration in the present Review Petition is:</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><span style=\"font-weight: bolder;\">\"Whether the Miscellaneous First Appeal No.3806/2019 filed by the review petitioner before this Court under Section 54 of the 1894 Act is maintainable, when the award came to be passed on 8.10.2014 i.e., after 2013 Act came into force w.e.f 1.1.2014, in the facts and circumstances of the present case ?\" <br></span></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">23. It is not in dispute that the review petitioner/Special Land Acquisition Officer (\'SLAO\' for short) has proposed for acquisition of land measuring 3 acres 16 guntas in property bearing No.59/1, Ward No.29, within the limits of Bruhat Bengaluru Mahangara Palike, out of the larger extent of 24 acres 4 guntas, belonging to the respondent, situated on Binny Mill Road, Bengaluru North taluk. Accordingly, the Deputy Commissioner issued preliminary notification on 7.12.2013 under the provisions of Section 17(2) and 17(4) r/w Section 4(1) of the 1894 Act, invoking special powers in cases of urgency and the same was published in official gazette on 14.2.2013. Subsequently, final notification under Section 6(1) r/w 17(2) of the 1894 Act came to issued on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18.11..2013 and possession of the land was secured on the same day.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">24. It is also not in dispute that 2013 Act came into force w.e.f 1.1.2014. Thereafter, the SLAO proceeded to pass the award on 8.10.2014 fixing the market value of the acquired land at Rs.4,620/- per square feet with all statutory benefits. The respondent being not satisfied with the market value fixed by the SLAO in respect of the acquired land, has filed an application (protest petition) to make reference to the authority contemplated under Section 64 of the 2013 Act for determination of the market value for the acquired land. The SLAO on receipt of the application, has made reference under Section 64(1) of the 2013 Act and the reference authority registered the same in L.A.C. No.33/2017. Before the reference authority, the landlord examined as PW.1 and got marked the documents as per Ex.P1 to Ex.P34 and the present review petitioner/respondent has not adduced any evidence nor produced any documents. The reference authority considering the oral and documentary evidence on record, has allowed the reference and fixed the market value of the acquired <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">property at the rate of Rs.8624/- per square feet instead of Rs.4,620/- per square feet, awarded by the Special LAO with all statutory benefits.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">39. Learned AAG while arguing with regard to the extent to which 2013 Act applies to the acquisitions that have been started under the 1894 Act, but where award is not made when the 2013 Act came into force, has mainly contended that the provisions of the 2013 Act which can be applied are only Sections 25 to 30 and all other provisions of the 1894 Act will continue to apply relating to making of an award, request to make reference, award by the reference Court/authority and challenge thereto etc., According to the learned AAG, in the present case, though award passed after the 2013 Act came into force, the reference has to be made only under Section 18(1) of the 1894 Act and after passing of the award by the reference Court, the aggrieved party may file an appeal before this Court under Section 54 of the 1894 Act and the provisions of Section 5 of the Limitation Act are applicable. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">41. As stated supra, once the provisions of Section 24(1)(a) of the 2013 Act applies to the case on hand, then the provisions of 2013 Act to pass award, request to make a reference, award by the reference authority and challenge thereto, automatically applies. Admittedly in the present case, the Special Land Acquisition Officer has made reference under Section 64(1) of the 2013 Act and the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reference authority passed the award as contemplated under Section 69 of the 2013 Act and therefore, automatically the provisions of Section 74 of the 2013 Act applies for filing the appeal before this Court. Thereby, the contention of the learned AAG that 1894 Act is applicable for all other purposes, is without any basis and cannot be accepted.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">43. The said proposition of law has no application to the facts and circumstances of the present case. In the present case, the question that arose for consideration is as to whether the appeal lies under Section 74 of the 2013 Act or Section 54 of the 1894 Act. 2013 Act came into force w.e.f 1.1.2014. Admittedly, in the present case, the award came to be passed on 8.10.2014 under the provisions of 2013 Act i.e., after the new Act came into force. Therefore, the provisions of Section 24 (1)(a) of the 2013 Act are applicable and the reference has to be made only under Section 64 of the 2013 Act to the reference authority and the reference authority has to determine the compensation under Section 69 of the 2013 Act. Then the appeal lies to this Court under section 74 of the 2013 Act. Therefore, the said judgment is no way helpful to the review petitioner. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">82. It is an undisputed fact that the respondent - M/S S.V. Global Mill Limited is originally owner of larger extent of land measuring 110 acres as admitted by the impleading applicant in paragraph-11 of the application. It is also not in dispute that the respondent has alienated some of its properties and as on the date of the notification issued to acquire the land of the respondent, 24 acres 4 guntas belong to the respondent - M/s S.V. Global Mill Limited. The preliminary notification issued by the SLAO on 7.2.2013 for acquisition of 3 acres 16 guntas out of 24 acres 4 guntas in Sy.No.59/1 invoking urgency clause followed by the final notification dated 18.11.2013 and subsequently the award came to be passed on 8.10.2014 i.e., after the 2013 Act came into force w.e.f. 1.1.2014 and the SLAO awarded the compensation at the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">rate of Rs.4,620/- per square feet. Admittedly, the present applicant, who is holding one share together with his wife in the respondent company has not challenged the acquisition proceedings initiated by the State Government admitting the ownership of the respondent in respect of the property in question nor challenged the award passed by the SLAO under the provisions of 2013 Act. It is also not in dispute that the respondent being aggrieved by the award, has filed the protest petition to make reference to the authority contemplated under Section 64 of the 2013 Act for determination of the higher market value for the acquired land. The SLAO on receipt of the application, has made reference under Section 64(1) of the 2013 Act and the reference authority registered the same in L.A.C. No.33/2017. The applicant if really interested in the property, he should have filed an application for impleading before the reference authority. Admittedly, the reference authority considering the oral and documentary evidence on record, has proceeded to award compensation at the rate of Rs.8624/- per square feet. The said award passed by the reference authority has not been challenged by the applicant. The SLAO being aggrieved by the judgment & award passed by the reference </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">authority, has filed MFA No.3806/2019 before this Court. This Court by the judgment & award dated 25.9.2019, has dismissed the appeal filed by the present review petitioner on the ground of limitation. From the date of initiation of acquisition proceedings in the year 2013 till the proceedings ended in MFA No.3806/2019 at the instance of the State Government/DC & SLAO, the applicant was fence-sitter. On that ground also, the present application is liable to be dismissed with exemplary costs.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">84. Throughout it is the case of the State Government before the Hon\'ble Supreme Court that appeal lies under section 54 of the 1894 Act before this Court against the order passed by the reference Court/authority and not under Section 74 of the 2013 Act. The applicant except stating that the present application filed in public interest, has not stated what is the locus standi to question the acquisition proceedings when the payment of the compensation amount as per the award having been allowed and the proceedings under the 1894 Act and 2013 Act attained finality. As stated supra, the applicant is a fence-sitter till disposal of the MFA before this Court and when the matter reached the Hon\'ble Supreme Court, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">applicant sought for permission to file an application for impleadment/intervention in the review petition. Accordingly, while dismissing the SLP as withdrawn, applicant is given liberty to file an application for impleadment/intervention before this Court which shall be considered subject to objections that may be raised by the respondent.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">87. It is well settled that the applicant who is a share holder of the company does not have any interest in the property of the company while the company is going a concern and hence he cannot be termed to be necessary and proper party or interested party in the proceedings, at this stage of the review petition filed by the petitioner under Order 47 Rule 1 of the Code of Civil Procedure.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">91. Learned counsel for the impleading applicant relied upon the dictum of the Hon\'ble Supreme Court in the case of Smriti Madan Kansagra -vs- Perry Kansagra reported in 2021 SCC OnLine 909 with regard to \'fraud vitiates everything\'. Admittedly <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in the present case, the State has admitted the ownership of the respondent in respect of the property in question and the impleading applicant has not made out any fraud on the part of the State Government in its action to initiate the acquisition proceedings in respect of the property belonging to the respondent, thereby the said judgment has no application to the facts and circumstances of the present case.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">92. Learned counsel for the impleading applicant also relied upon the judgment of the learned Single Judge of this Court in the case of Ramaiah -vs- Shivalingaiah reported in 2016 SCC OnLine kar 4501 with regard to scope of intervention. In the said judgment, the learned Single Judge of this Court dealt with power of the Court to permit a person or body of persons to present opinion or to take part in the proceedings. The said judgment has only persuasive value and not applicable to the facts and circumstance of the present case.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">94. The present application is filed by the impleading applicant, who all along the fence-sitter only to harass the respondent and wasted precious time of the Court. The experience of this Court depicts that in recent years there has emerged a trend of filing speculative litigations before various Courts of law, not just in the Court of first instance, but also in the High Court as well as before the Hon\'ble Supreme Court. It is the duty of the Courts to ensure that such litigations shall be weeded out at the first instance rather than allowing to be festered and thereby coming in the way of genuine litigants seeking justice treating the Court as \"Temple of Justice\" and to protect precious public & judicial time of the court. \"This augurs ill for the health of our judicial system\". <br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"> </span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">95. Like any other organ of the State, the Judiciary is also manned by human beings - but the function of the judiciary is distinctly different from other organs of the State - in the sense its function is divine. Today, the judiciary is the repository of public faith. It is the trustee of the people. It is the last hope of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">people. After every knock at all the doors fail, people approach the judiciary as the last resort. It is the only temple worshipped by every citizen of this nation, regardless of religion, caste, sex or place of birth. It is high time the judiciary must take utmost care to see that the temple of justice does not crack from inside, which will lead to a catastrophe in the justice-delivery system resulting in the failure of public confidence in the system. We must remember that woodpeckers inside pose a larger threat than the storm outside.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">96. Viewed from any angle, the applicant has no locus standi to come on record in the present Review Petition. Thereby, the application is liable to dismissed with costs.</span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">97. For the reasons stated above, the point raised is answered in the negative holding that the impleading application filed by the impleading applicant under Order 1 Rule 10 r/w 151 CPC is not maintainable and the applicant has not made out any case to implead him in the present Review Petition, in the peculiar facts and circumstances of the present case. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">ORDER</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(i) The Review Petition is dismissed as devoid of any merit. </span></p>', '1c4fa3181ca30774d862e18b72bab2eb.jpeg', '67b751b70d461ed018a2aa2b010a2c42.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-01', 1, '', '', '2022-10-28 16:40:03', '2022-11-01 07:40:58'),
(2350, 'DQNuFFbQo5xmzvkMbqCqm5w9L', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mischief by killing or maiming animals. Mens rea, animus or intention is required to be established to constitute offences under Section 428 or Section 429 of IPC. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Prathap Kumar Vs State of Karnataka and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Criminal Petition 1133 of 2019 decided on 21 October 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Suraj Govindaraj.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. On 24.02.2018, when the complainant’s mother had taken her pets for a walk as per her routine, a Fortuner SUV vehicle hit one of the pet dogs. The complainant’s brother-in-law and sister took the pet dog - Memphi to a Veterinary Clinic. But the pet dog was declared dead. The incident having occurred between 8.15 to 9.00 p.m. on 24th February 2018, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the complainant upon hearing the same from his mother, had called the police helpline who sent two policemen to the spot who verified what had happened and thereafter the complainant registered a complaint with the Vijayanagara Police Station in Crime No.21/2018 against the driver of the Fortuner car bearing Registration No.KA-02-MJ-5669 for offences punishable under Section 134(A & B) and 187 of Motor Vehicles Act, 1988 (for short, M.V.Act) and Sections 279, 428, 429 of IPC.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. The investigating officer conducted the investigation and filed a charge sheet against the petitioner for offences under Section 134(A & B) and 187 of M.V.Act, and Sections 279, 428, 429 of IPC. It is aggrieved by the same that the petitioner is before this Court seeking for the aforesaid reliefs.</span><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">8. The points that would arise for determination are as under:-</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">1) Whether an offence under Section 134 (A & B) of the Motor Vehicles Act, 1988 would get attracted in the event of an accident involving a pet animal? <br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2) Whether an offence under Section 187 of the Motor Vehicles Act, 1988 would get attracted in the event of an accident involving a pet animal?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3) Whether an offence under Section 279 of Indian Penal Code, 1860 can be alleged if an injury is caused to an animal while driving the vehicle?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">4) For an offence to be alleged under Sections 428 and 429 of Indian Penal Code, 1860, there is an animus and/or intention which is required to be established?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">5) Whether there is a requirement of this Court to exercise its powers under Section 482 of Code of Criminal Procedure to quash the proceedings?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">6) What order? <br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">10. Answer to Point No.1: Whether an offence under Section 134 (A & B) of the Motor Vehicles Act, 1988 would get attracted in the event of an accident involving a pet animal?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">10.3. Section 134 of M.V.Act deals with a situation when any person is injured or any property of a third party is damaged. But Section 134 (a) and (b) of M.V.Act do not make any provision for a property being damaged. Section 134 (a) and (b) of M.V.Act only speak of securing medical attention for the injured person. In the present case, if the pet/animal is regarded to be a property of a third party, there is no offence as such made out in terms of Section 134 (a) or (b) of M.V.Act as regards the damage to such property of a third party. In view of the above, I am of the considered opinion that the said provision relates only to injury to a person, a dog/animal not being a person </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">would not come within the ambit of Section 134 (a) and (b) of M.V.Act.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10.4. Hence, I answer point No.1 by holding that the provision of Section 134 (a) or (b) of M.V.Act would not get attracted in the event of an accident involving a pet/animal</span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">11. Answer to Point No.2: Whether an offence under Section 187 of the Motor Vehicles Act, 1988 would get attracted in the event of an accident involving a pet animal? <br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">11.10. In view of the above discussion and analysis, I am of the considered opinion that it cannot be said that there is any non-compliance with the provision of Clause (a) of SubSection (1) of Section 132 or Section 133 or Section 134 requiring the applicability of Section 187 of the M.V.Act.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11.11. Hence, I answer Point No.2 by holding that in the event of an accident involving a pet/animal, Section 187 of M.V.Act would not get attracted.</span><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">12. Answer to Point No.3: Whether an offence under Section 279 of Indian Penal Code, 1860 could be said to have occurred if the accident involved a pet dog and not a human being?<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">12.4. In the present circumstances, the penal provision of Section 279 of IPC if read and understood in its literal sense which is the interpretation required to be given to all penal provisions, endangering a pet or causing hurt or injury to a pet/animal would not be one, which is punishable under Section 279 of IPC.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">12.5. Hence, I answer Point No.3 by holding that an accident involving a pet dog would not attract an offence under Section 279 of IPC. <br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">13. Answer to Point No.4: For an offence to be alleged under Section 428 and 429 of Indian Penal Code, 1860, there is an animus and/or intention which is required to be established?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">13.15. In the present case, the only offence if at all is attributed is likely under Section 428 or Section 429 of IPC. It is required that there must be mens rea or animus for the accused to have committed such an offence. Admittedly, the petitioner is not known to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the complainant and/or his family members nor that the petitioner has any enmity with the deceased pet dog Memphi. Hence, there cannot be any animus said to be existence in the petitioner to cause the death of the said pet Memphi.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13.16. I am of the considered opinion that mere knowing that there is likely to cause an accident is not sufficient. There has to be an intent to cause wrongful loss or damage. The same not having been established exfacie, I am of the considered opinion that no offence under Section 428 and Section 429 of IPC can be said to be made out.</span><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13.17. The interpretation to the said provisions is required to be given as it exists and not on the basis of the submission made by Ms.Anu Chengappa that even as regards animus, the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">test of likely to cause wrongful loss or damage cannot be applied.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13.18. Hence, I answer Point No.4 by holding that for an offence under Section 428 or Section 429 of IPC, it is required that a mens rea, animus or intention is required to be established.</span><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">14. Answer to Point No.5: Whether there is a requirement of this Court to exercise its powers under Section 482 of Code of Criminal Procedure to quash the proceedings?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">14.3. The inherent powers under Section 482 of Cr.P.C. are required to be exercised by this Court in circumstances which require such power to be exercised and not in all cases. Once such circumstances exists, that is if no offence is made out, the criminal proceedings would have to be quashed, since <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the continuation of criminal prosecution would amount to travesty of justice.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">14.4. Having come to a conclusion that there is no offence made out under Section 134 (a) and (b) of M.V.Act, Section 187 of M.V.Act, Section 279 of IPC as also under Section 428 and 429 of IPC, I am of the considered opinion that the continuation of the criminal proceedings would only be an abuse of process of Court and would cause injustice to the petitioner to suffer the ignominy of a criminal trial. Hence, I am of the considered opinion that this is a fit and proper case for exercise of powers under Section 482 of Cr.P.C.</span><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">15. Answer to Point No.6: What order? <br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">ORDER</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">i. The Criminal Petition is allowed. </span></span></span></p>', '2e798014816ffb0f726601ed15538ba7.JPG', 'f77c316d15f5ab94605a6a1eb4d70845.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-10-31', 1, '', '', '2022-10-30 18:56:15', '2022-10-31 11:06:51');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2351, 'giheJQRI2w2LOoYAyy60pGhE2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Merely because the avowed objects of a private body linguistically partake the nature of certain functions which ordinarily governmental bodies do, it does not thereby become a limb or agency of the State. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">B.L. Shankarappa Vs Federation of Karnataka Chambers and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 7123 of 2022 decided on 30 September 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Krishna S. Dixit.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Petitioner, an elected member of 1st Respondent – Federation of Karnataka Chambers of Commerce and Industry (hereafter ‘FKCCI’) is knocking at the doors of Writ Court grieving against the alleged mismanagement of and undemocratic practices perpetrated in the FKCCI.<o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><span style=\"font-weight: bolder;\"> </span></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">2. After service of notice, the Respondents entered appearance through their advocates and opposed the Writ Petition. The contesting Respondents have filed their Statements of Objections. Learned counsel appearing for the respondents resisted the petition contending that: the FKCCI not being an instrumentality of ‘State’ under Article 12 of the Constitution of India and its actions/inactions not animated with public law elements, writ petition is misconceived; petitioner does not have a justiciable right and therefore, he cannot litigate; prayers of the kind cannot be granted in constitutional jurisdiction; petitioner is liable to be nonsuited on the grounds of suppresio veri; even otherwise, he can work out alternate remedies availing under the 2013 Act. So contending, they seek dismissal of the writ petition.<o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><span style=\"font-weight: bolder;\"> </span></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">3. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines indulgence in the matter for the following reasons:<o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-size: 12pt; text-indent: -18pt;\">A.</span><span times=\"\" new=\"\" roman\";\"=\"\" style=\"text-indent: -18pt; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal;\">    </span><span style=\"font-size: 12pt; text-indent: -18pt;\">AS TO FKCCI BEING ‘INSTRUMENTALITY OF STATE’ UNDER ARTCILE 12 OF THE CONSTITUTION:</span></span></p><p class=\"MsoListParagraph\" style=\"margin: 0cm 0cm 0cm 36pt; font-size: 12pt; font-family: Calibri, sans-serif; text-indent: -18pt;\"><span style=\"font-weight: bolder;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"> <span lang=\"EN-US\"><o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(v) An association of persons incorporated or not, may undertake activities very much in public interest; say for example, it may profess to protect the sovereignty & integrity of nation; laudable it is, undoubtedly; however thereby, it does not become a ‘State Agency’ for the purpose of Part III of the Constitution. Similarly, if an entity is formed with the sole object of giving effect to Part IV Directives that per se does not take it to the precincts of Article 12, inasmuch as the public as such, is not entitled to demand for the implementation of professed objects of the said entity. What is to be seen is, whether the functions of such a body are pregnant with sufficient public law elements as to justify invocation of writ jurisdiction; in the case at hands, the answer to this question is a plain ‘NO’. The ingenuity of arguments advanced at the Bar, cannot catapult a private entity like FKCCI into the ever expanding orbit of Article 12.<o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><span style=\"font-weight: bolder;\"> </span></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(vii) The offshoot argument of the petitioner that regardless of status of FKCCI as an instrumentality of the State, petitioner can invoke the writ jurisdiction in matters like this, at a first blush appears attractive. However, a deeper examination shows its hollowness. True it is that our Constitution Makers have widely phrased Articles 226 & 227 qua Article 32 so that the traditional shackles of English Law of Writs would not come in the way of doing justice. This court hastens to add that here again, relaxation of the rigor and not its removal, is brought about. The law of writs has marched from ‘status to function’. Jurisdiction under these Articles extends to adjudging causes of action not necessarily founded on the violation of fundamental rights, is true. However, it is conditioned by another factor namely such causes should be predominantly animated with public law elements.; the Respondent need not be a ‘State’ or its ‘instrumentality’ for the purpose of subjecting its actions to judicial review if, public law elements galore in them. Conversely, writ remedy does not avail even against a State or its instrumentality, should its actions lack required amount of public law elements vide LIFE INSURANCE COMPANY vs. ESCORTS LTD4 , as rightly contended by Sr. Advocates appearing for the contesting respondents.<o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><span style=\"font-weight: bolder;\"> </span></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-size: 12pt; text-indent: -18pt;\">B.</span><span times=\"\" new=\"\" roman\";\"=\"\" style=\"text-indent: -18pt; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal;\">    </span><span style=\"font-size: 12pt; text-indent: -18pt;\">AS TO CONTRACTUAL NATURE OF MEMBERSHIP QUA THE COMPANY:</span><br></span></p><p class=\"MsoListParagraph\" style=\"margin: 0cm 0cm 0cm 36pt; font-size: 12pt; font-family: Calibri, sans-serif; text-indent: -18pt;\"><span style=\"font-weight: bolder;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><span style=\"font-weight: bolder;\"> </span></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(ii) Article 11 of AOA provides for composition of Managing Committee of FKCCI which comprises inter alia of 48 Members from various segments i.e., trade, business, industry, profession, services, etc. The consenting past Presidents also happen to be the members, subject to certain compliances. Voting rights are given to the members vide Art.12.9 of AOA. Art. 13 defines the powers & functions of the Committee. Art. 12.1 prescribes the procedure for the Committee Meetings; If the petitioner seeks a structural change in the Management at the hands of this Court (assuming maintainability of the petition), he has to demonstrate a right inhering in him and a corresponding public duty resting on the shoulders of FKCCI, ubi jus ibi remedium being the baseline. However, despite vociferous submissions, the same remains unsubstantiated, to say the least.<o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><span style=\"font-weight: bolder;\"> </span></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-size: 12pt; text-indent: -18pt;\">C.</span><span times=\"\" new=\"\" roman\";\"=\"\" style=\"text-indent: -18pt; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal;\">     </span><span style=\"font-size: 12pt; text-indent: -18pt;\">DESIREABILITY OF HAVING PAST PRESIDENTS IN THE MANAGERIAL BODIES:</span><br></span></p><p class=\"MsoListParagraph\" style=\"margin: 0cm 0cm 0cm 36pt; font-size: 12pt; font-family: Calibri, sans-serif; text-indent: -18pt;\"><span style=\"font-weight: bolder;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(ii) Such ideas are enacted even in the campus laws such as university legislations which provide for the appointment of ‘Old Guards’ as professors emeritus and their inclusion in the Senate/Syndicate. For instance, section 6.2 of the Visva Bharati Act, 1951 relating to Tagore’s ‘Santiniketana’ provides for such arrangements. Pari materia provisions that are aimed at maximizing the utilization of ‘human capital of age’, i.e., accumulated wisdom, do obtain across the globe in some form or the other. After all, ‘grey hair has to be respected’ as of necessity, if not because of virtue. This Committee scrutinizes the application for membership. It hardly needs to be stated that this is not a solitary instance. Statutes as such, in so many words may not say this explicitly; however there is nothing in them that repels doing of gainful things like this. These things are internalized by making suitable provisions in the corporate policies. This is how the extant MOA/AOA appear to have been structured in the FKCCI.<o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><span style=\"font-weight: bolder;\"> </span></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(iii) The above having been said, it cannot be denied that there is some sense & logic in the submission made on behalf of the petitioner that the inclusion of too many Past Presidents may jeopardize the flow of fresh blood into the Management Committee and that the FKCCI should not be rendered into a “gymkhana club like thing” wherein the scope for induction of new members becomes too much restrictive, the views of Past Presidents predominating the decision making process. It is desirable that there shall be no scope for grievance of the kind. However, it is for the wisdom of managerial section of the FKCCI to take a call on this.<o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><span style=\"font-weight: bolder;\"> </span></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><o:p><br></o:p><span style=\"font-size: 12pt; text-indent: -18pt;\">D.</span><span times=\"\" new=\"\" roman\";\"=\"\" style=\"text-indent: -18pt; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal;\">    </span><span style=\"font-size: 12pt; text-indent: -18pt;\">AS TO SUB-COMMITTEE RECOMMENDATIONS AND THEIR JUSTICIABILITY:</span></span></p><p class=\"MsoListParagraph\" style=\"margin: 0cm 0cm 0cm 36pt; font-size: 12pt; font-family: Calibri, sans-serif; text-indent: -18pt;\"><span style=\"font-weight: bolder;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(iii) There is yet another aspect of law: that once the recommendation of the Bye-law Committee is tabled, deliberated & accepted, that would not proprio vigor bring about change in the structure of management of the FKCCI. The companies incorporated u/s 8 of the 2013 Act cannot amend or alter their Memorandum of Association and Articles of Association sans prior approval of Central Government. Section 14(1) provides that subject to the provisions of this Act and the conditions contained in the Memorandum, if any, a company may, by a special resolution, alter its Articles. The altered Articles are required to be filed with the Registrar of Companies u/s 14(2). The manner of passing a special resolution is provided u/s 114(2). Thus, the Act prescribes a specific procedure for amending the Articles of Association of a company u/s 14, in addition to other requirements u/s 8. Any grievance in respect of Articles of Association of FKCCI is remediable in the manner provided u/s 14 read with Section 114(2) of the Act. Section 100 permits any member of the company to request its Managing Committee to call for an Extraordinary General Meeting to consider grievances raised by him; if the Committee does not agree, he himself can requisition a meeting of course, after complying with the requirement under this provision. If his request does not materialize, a member can also approach the National Company Law Tribunal (NCLT) for the redressal of his grievance. This is stated to have been done by a few past Presidents/office bearers, earlier. That being the position, petitioner could not have hastened to complain to the Writ Court, bypassing all these avenues.<o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><span style=\"font-weight: bolder;\"> </span></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><o:p><br></o:p><span style=\"font-size: 12pt; text-indent: -18pt;\">E.</span><span times=\"\" new=\"\" roman\";\"=\"\" style=\"text-indent: -18pt; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal;\">     </span><span style=\"font-size: 12pt; text-indent: -18pt;\">AS TO APPOINTMENT OF OBSERVERS FROM OUTSIDE THE MEMBERSHIP:</span></span></p><p class=\"MsoListParagraph\" style=\"margin: 0cm 0cm 0cm 36pt; font-size: 12pt; font-family: Calibri, sans-serif; text-indent: -18pt;\"><span style=\"font-weight: bolder;\"><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(iii) Lastly, the submission made on behalf of the petitioner for termination of illegal/ineligible members including Trusts such as, ‘Vasavi Vidyanikethan Trust’, again cannot be subjected to judicial review. Who should be members and who should not be, are all matters of private policy as incorporated in the MOA/AOA/Byelaws and the decision making in matters like this is left to the Managing Committee of FKCCI, for the reasons already discussed supra. An argument to the contrary would render the Writ Court the Managing Body. That is not the object with which writ jurisdiction is constitutionally conferred on this Court.<o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><span style=\"font-weight: bolder;\"> </span></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">In the above circumstances, this writ petition being thoroughly devoid of merits, is liable to be dismissed and accordingly it is costs having been made easy.</span></p>', '87342c15227a7b10fafa82100fa091eb.JPG', '3459cb4c67853147237a86a3ec8741d2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-01', 1, '', '', '2022-10-30 18:58:37', '2022-11-01 12:06:16'),
(2353, 'IsrkJxC6pUFwmOLnFyWNb17gp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Certain Inams Abolition Act, 1977. Application in Form 1 seeking regrant of land filed after 31 March 1991 cannot be entertained by the Land Tribunal. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>H.S. Ananda and others Vs H.V. Rathnamma and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 8766 of 2021 decided on 10 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In W.P.No.28236/2018, this is a legal battle for\r\nland of the temple waged by & between a devotee & the\r\nManaging Committee of the Temple on the one hand and\r\nthe persons claiming to be it’s archaks cum cultivators on\r\nthe other. The application in Form 1 claiming regrant in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respect of land in question was made by the private\r\nrespondents on 13.01.1993 u/s 5 of the Karnataka Certain\r\nInams Abolition Act, 1977. The Land Tribunal vide order\r\ndated 3.3.2018 having regranted the land in favour of\r\nprivate respondents, aggrieved thereby, petitioners are\r\nknocking at the doors of Writ Court.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Having heard the learned counsel for the parties\r\nand having perused the Petition Papers, this Court is\r\ninclined to grant indulgence in the matter for the following\r\nreasons:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(a) The application in Form 1 seeking regrant of land\r\nwas filed u/s 5 of the 1977 Act on 13.01.1993, the\r\nKarnataka Act No.3 of 1991 having prescribed 31.03.1991\r\nas the last date for making the application. That being the\r\nposition, the application made beyond the statutory limit is\r\nno application in the eye of law and therefore, could not\r\nhave been favourably treated by the respondent-Land\r\nTribunal. Added, there is no provision for the condonation of\r\ndelay and that prescription of limitation period is by the\r\nlegislature itself. The vehement contention of learned\r\ncounsel appearing for the Archak & his sister that a Division\r\nBench of this Court in SRIPATHY GOVIND BHAT VS STATE\r\nOF KARNATAKA ILR 2003 KAR 4196, has held that the time\r\nlimit is directory in nature and therefore, merely because\r\nthe application was made beyond the statutory limitation,\r\nregrant of land cannot faltered, is difficult to agree with.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">(b) The Division Bench in the said decision was\r\nconsidering mainly as to who could lay a challenge to the\r\norder of the kind and thus incidentally treated the question\r\nof limitation by making some passing observations. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Therefore, the same cannot be treated as a Thumb Rule. It\r\nhas been a settled position of law since the days of LORD\r\nHALSBURY vide QUINN VS. LEATHAM, (1901) A.C. 495, 506\r\nthat a case is an authority for the proposition that it\r\nactually lays down in a given fact matrix and not for all that\r\nwhich logically follows from what has been so laid down.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(c) The submission of learned counsel for the\r\npetitioners that it has been the villagers who have been\r\ncultivating the land in question and using the usufructs\r\nthereof for the maintenance of temple in question and also\r\nfor periodic jaatra, gains support from the long &\r\nuninterrupted entries standing in the revenue records which\r\nenjoy presumptive value u/s 133 of the Karnataka Land\r\nRevenue Act, 1964. There is of course a sporadic entry for\r\nthe year 1975-76 wherein along with a member of the\r\nTemple Managing Committee, name of one Mr.Veeraiah\r\nunder whom private respondents claim also figures, is true.\r\nHow all of a sudden, his name gained entry to the revenue\r\nrecords is not forthcoming from the records. It is a mystery\r\nwrapped in enigma. Nothing is stated by the Tribunal <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">either, about this. A sporadic adverse entry of the kind does\r\nnot enjoy presumptive value qua regular & long standing\r\nother entries and therefore, it is bereft of rebuttal force, as\r\nrightly submitted by learned counsel appearing for the\r\npetitioners.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(e) The last contention of learned counsel for the\r\nrespondents that petitioners lack locum & locus standii for\r\nmaintaining the Writ Petition, is bit difficult to countenance.\r\nThe observations of the Division Bench in SRIPATHY\r\nGOVIND BHAT, supra giving such an impression were made\r\nin a different fact matrix. Added, the contra contention of\r\nlearned counsel appearing for the petitioners is supported\r\nby the decision of the Apex Court in BISHWANATH VS. SHRI\r\nTHAKUR RADHABALLABHJI, AIR 1967 SC 1044. It also\r\ndraws support from another Division Bench decision in\r\nW.P.No.9623/1988 between M.PUNDALIKAPRABHU VS.\r\nADDITIONAL LAND TRIBUNAL, disposed off on 22.02.1994\r\n(LANS(KAR)-1994-2-17). <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In W.P.No.8766/2021, petitioners lay a challenge to\r\nthe orders of Civil Courts dated 22.10.2020 & 27.1.2020, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which in effect have granted injunctive relief in favour of\r\nprivate respondents on the basis of order of the Land\r\nTribunal whereby regrant of land was made in their favour.\r\nEven direction for police protection is also structured on the\r\nbasis of Land Tribunal order. Now, the said Land Tribunal\r\norder itself is being set at naught in the accompanying\r\nW.P.No.28236/2018, the impugned orders in this petition\r\ndo lose the substratum, to stand on and therefore, are\r\nliable to be voided.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the above circumstances, both the Writ Petitions\r\nsucceed; a Writ of Certiorari issues quashing the order of\r\nthe Land Tribunal; similarly, a writ of certiorari also issues\r\nquashing the order of temporary injunction, the order in\r\nM.A.No.9/2019 affirming the grant of temporary injunction\r\nand also the order directing police aid. Entries in Revenue\r\nRecords shall be restored as before, forthwith.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Costs made easy. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1d56d1cd2ee5b70518ef0d786d27d48a.JPG', '3074002c57ea31cdfab8374cd5414093.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-02', 1, '', '', '2022-10-31 13:01:05', '2022-11-02 12:26:06'),
(2354, 'QjEvO87eZlNT59yqjWqKTk9IM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Purchasers of inam lands after vesting of the lands in the State cannot claim occupancy rights under Section 9 of the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1958. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Prl, Secy to Govt and others Vs Sarojamma and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 24123 of 2012 decided on 11 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice R. Devdas.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>These writ petitions arise basically from proceedings\r\ninitiated under Mysore (Personal and Miscellaneous) Inams\r\nAbolition Act, 1958. The State of Karnataka has filed two writ\r\npetitions in W.P.No.24123/2012 and W.P.No.10174/2021.\r\nTwo sets of applications in LRF Nos.70, 87, 91 and 60/1959-\r\n60 and LRF Nos.15 and 93/1958-60 were filed before the\r\nSpecial Deputy Commissioner for Inams Abolition, Bangalore,\r\nclaiming occupancy rights in respect of 40 acres and 36 acres\r\nin Sy.No.199 of Ullal Village, amongst others. Two orders\r\npassed by the Karnataka Appellate Tribunal, Bangalore\r\nallowing the appeals and consequently conferring occupancy\r\nrights in favour of the legal heirs/successors-in-interest of the\r\noriginal applicants have been questioned by the State\r\nGovernment.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. During the interregnum, the State Government\r\ngranted 10 acres of land in favour of Karnataka Institute of\r\nLeather Training (for short ‘KILT’) and another extent of 20\r\nacres in favour of Police Department. The grant orders made\r\nin favour of KILT and another have been questioned in some\r\nof the writ petitions and two writ petitions have been filed by\r\nKILT, aggrieved by an interim order of the KAT, declining to\r\nimplead KILT and the final order passed by the KAT. A few\r\nother writ petitions also arise out of the orders passed by the\r\nKAT. It is unnecessary, at this stage to go into the details of\r\neach writ petition. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">16. Having regard to the submissions made by the\r\nlearned AAG and learned Counsel Sri A.Ravishankar, that since </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Sri Venkataramanappa had sold the lands to several persons\r\nand there was no right retained by Sri Venkataramanappa to\r\nprosecute the application filed under Section 5, the learned\r\nSenior Counsel Sri K.G.Raghavan would submit that the law of\r\nfeeding the grant by estoppel in terms of Section 43 of the\r\nTransfer of Property Act, 1882, would enable the subsequent\r\npurchasers to seek grant of occupancy rights. However,\r\nlearned Counsel Sri A.Ravishankar, submits that in the case of\r\nKartar Singh and Others Vs. Harbans Kaur (1994) 4 SCC\r\n730, it has been held that the rule of estoppel by deed by the\r\ntransferor would apply only when the transferee has been\r\nmisled. Where the transferee knows as a fact that the\r\ntransferor does not possess the title which he represents he\r\nhas, then he cannot be said to have acted on it when taking a\r\ntransfer. Section 43 would then have no application and the\r\ntransfer will fail under Section 6(1) of the Transfer of Property\r\nAct. Learned Senior Counsel Sri K.G.Raghavan, would counter\r\nwhile stating that the said provision as contained in Section 43 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is enacted on the principles of equity, to ensure that the\r\ntransferor does not get double benefit and therefore provision\r\nis made to ensure that the purchaser is given the benefit\r\nwhich is subsequently derived by the transferor. Learned\r\nSenior Counsel would therefore submit that the Tribunal is\r\njustified in granting the relief to the subsequent purchasers.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. Therefore, for a claimant to be eligible to seek\r\ngrant of occupancy rights, under Section 5, as permanent\r\ntenant, the claimant has to fulfill the requirement of having\r\nbeen in possession of the land for atleast twelve years prior to\r\nthe date of application or should be able to prove that he is\r\nentitled to tenancy during the subsistence of a contract which\r\nis co-extensive with the duration of the tenure of the Inamdar.\r\nBoth these requirements or either of them are disproved on\r\nthe own showing of the claimants and therefore the claimants\r\ncould not have maintained an application under Section 5.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. This Court also finds that there are certain\r\nimportant aspects which have not been considered by the\r\nSpecial Deputy Commissioner and the Tribunal. It is\r\nnoticeable that the Mysore (Personal and Miscellaneous) <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Inams Abolition Act, 1954 was first published in the official\r\ngazette on 19.03.1955. The Act sought to abolish personal\r\ninams and certain miscellaneous inams through out the State,\r\nexcept Bellary district. The vesting of the inam lands\r\nhappened on the appointed date, by notification issued under\r\nsub-section (4) of Section 1. Admittedly, the two sale\r\ntransactions in the present cases, have happened on\r\n13.12.1957 and 12.09.1958, after the date of vesting, in\r\nterms of the 1954 Act. On the other hand, the cases have\r\nproceeded on the footing that the sale transactions took place\r\nprior to the date of vesting i.e., 01.02.1959 under the 1958\r\nAct. If the date of vesting, in terms of 1954 Act, is taken into\r\nconsideration, the lands having vested in the State in the year\r\n1955, the Inamdar or his successors in interest could not have\r\nsold the lands as they had no right to sell the vested lands.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. Insofar as the factual finding, whether the land is\r\ngomal or otherwise, it is noticeable that at the very first\r\ninstance, in the order dated 14.08.1964, the Special Deputy <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Commissioner had held that the land is gomal. Thereafter, the\r\nmatters were remanded twice and by insertion of sub-rule\r\n(3A) as on 8.1.1975, the Rules, 1956 made it mandatory for\r\nimpleadment of such officer as the State Government notified,\r\nas a party respondent in an application filed by the Inamdar\r\nunder Section 9. Obviously, on realizing the need for\r\nimpleading the State Government as a respondent, in every\r\napplication made by the Inamdar, the insertion by way of\r\namendment were made to the Rules. During the proceedings,\r\nit was pointed out from the records that the “State of Mysore”\r\nwas subsequently, impleaded as a party respondent. But, it\r\nwas not mentioned as to who was the officer who represented\r\nthe State. No information is available as to the officer of the\r\nState to whom notice was issued. It is therefore obvious that\r\nthe interest of the State was not safeguarded. At the first\r\ninstance, when a factual finding is given to state that the land\r\nin question is gomal, then, any material contrary to the said\r\nfinding were required to be placed before the authority. No </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">such material is said to have been placed, either before the\r\nSpecial Deputy Commissioner or the Tribunal.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">27. Nevertheless, since this court has found that the\r\noriginal claimants namely Sri Srinivas Gupta and Sri\r\nVenkataramanappa admittedly, purchased the lands on\r\n13.12.1957 and 12.09.1958, long after the inam lands were\r\nvested in the State, in terms of the 1954 Act, and since they\r\ndid not derive any title to the lands in question, they could not\r\nhave claimed occupancy rights under Section 9. Insofar as\r\nclaim under Section 5 is concerned, this Court is of the\r\nconsidered opinion that since the claimants do not fulfill the\r\nrequirements of a permanent tenant as discussed earlier, their\r\napplications were required to be rejected. It is also pertinent\r\nto notice that the Tribunal, in the case of Sri Srinivasa Gupta,\r\nproceeded on a wrong footing that application was filed under\r\nSection 9 and therefore conferment of occupancy rights were\r\ngranted under Section 9. That is why no special reasons are </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">assigned by the Tribunal to confer occupancy rights under\r\nSection 9.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) W.P.No.24123/2012 and W.P.No.10174/2021\r\nare allowed, while setting aside the impugned\r\norders passed by the Karnataka\r\nAdministrative Tribunal, Bengaluru in Appeal\r\nNos.LRF 70, 87, 91 and 60/1959-60 dated\r\n10.06.2010 and Appeal No.121/1978 dated\r\n30.06.2015. Consequently, the applications\r\nin LRF Nos. 70, 87, 91 and 60/1959-60, and\r\nLRF Nos.15 and 93/1958-60 also stand\r\nrejected. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>All pending I.As stand disposed of accordingly. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b20832ce0acc24054d46bcf350f644d7.JPG', '268e659235b88f61eb4c9777aca7c064.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-03', 1, '', '', '2022-10-31 13:20:37', '2022-11-03 03:23:48'),
(2356, 'AIraUAEcVa3cHn9iS9nN3D0vC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transfer of land allotted in a public auction for an upset price does not attract the provisions of the Karnataka SC/ST (PTCL) Act, 1978. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kempaiah Vs Assistant Commissioner and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 38790 of 2019 decided on 29 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The land bearing Sy.No.7, which is later re-numbered as\r\nSy.No.7/P3/P1 situated at Istur village, Soolibele Hobli, Hoskote\r\nTaluk, was granted in favour of the 4th respondent vide grant\r\ncertificate dated 25.9.1982 with a condition that the land shall\r\nnot be conveyed for a period of fifteen years from the date of\r\ngrant. The subject land was conveyed to the petitioner by the\r\n4th respondent by executing a registered sale deed dated\r\n15.11.2005.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The 4th respondent filed an application for\r\nresumption and restoration of the subject land under Section 5 of\r\nthe Karnataka Scheduled Castes and Scheduled Tribes\r\n(Prohibition of Transfer of Certain Lands) Act, 1978 (for short\r\n`Act\') alleging that the same was conveyed to the petitioner in\r\ncontravention of Section 4(2) of the Act. The Assistant\r\nCommissioner concerned allowed the application stating that the\r\nsale deed executed in favour of the petitioner was in\r\ncontravention of Section 4(2) of the Act. The same was\r\nconfirmed by the Deputy Commissioner concerned in an appeal\r\nfiled under Section 5 of the Act, against which, the petitioner has\r\nfiled this writ petition.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. A perusal of the grant certificate dated 25.9.1982\r\nindicates that the subject land was allotted to the 4th respondent\r\nin a public auction for an upset price of Rs.2,250/-. The Hon\'ble\r\nSupreme Court in the case of B K Muniraju (supra) has held that\r\nthe land which was allotted to the grantee in a public auction at\r\nan upset price is not granted land as defined under Section\r\n3(1)(b) of the Act. In the present case, the grant was made in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">favour of the 4th respondent in Form No.1 read with Rule 43 of\r\nthe Mysore Land Grant Rules, which clearly implies that the\r\nsubject land was allotted in a public auction at an upset price of\r\nRs.2,250/-. Hence, the subject land is not a granted land as\r\ndefined under Section 3(1)(b) of the Act.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The petitioner has filed a memo seeking leave of this\r\nCourt to produce a copy of order passed in PTCL-SR(H)26/2008-\r\n09 dated 24.11.2017 by the Assistant Commissioner,\r\nDoddaballapur sub-division stating that the petitioner does not\r\nchallenge the validity of the said order and has also produced the\r\nsame along with the writ petition. The memo is placed on record.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n9. In view of the preceding analysis, I am of the view\r\nthat the subject land is not a granted land under Section 3(1)(b)\r\nof the Act and provisions of the PTCL Act are not applicable.\r\nHence, the application filed by the 4th respondent under Section\r\n5 of the Act is not maintainable.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> i) Writ petition is allowed.</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '80f6d5651403ea5620c2e42028b39599.jpeg', 'f999d067aa351d4e814697e165cc2f09.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-02', 1, '', '', '2022-10-31 13:54:08', '2022-11-02 03:22:02');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2357, 'HK5pfP3nNhGr8GlGFpG851Te0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Supreme Court bans “two-finger test” (per vaginum examination) on sexual assault victims. Declares contravention of the ban as misconduct. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State of Jharkhand Vs Shailendra Kumar Rai.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1441 of 2022 decided on 31 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dhananjaya Y Chandrachud and Justice Hima Kohli.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This appeal arises from the judgment of the High Court of Jharkhand dated\r\n27 January 2018. The High Court allowed the appeal by the respondent and set\r\naside the order of conviction and, consequently, of sentence passed by the\r\nAdditional Sessions Judge, FTC-II Deoghar, on 10 October 2006 and 11 October\r\n2006 respectively. The Sessions Judge had convicted the respondent for offences\r\npunishable under Sections 302, 376, 341 and 448 of the Indian Penal Code 18601\r\nand sentenced him to suffer imprisonment for life.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The case of the prosecution is that the respondent entered the house of the\r\nvictim and deceased in Narangi village, on the afternoon of 7 November 2004. It is\r\nalleged that he pushed her to the ground and committed rape upon her, while\r\nthreatening to kill her if she sounded an alarm. She called out for help, at which\r\npoint the respondent allegedly poured kerosene on her and set her on fire with a\r\nmatchstick. Her cries for help led to her grandfather, mother , and a resident of the\r\nvillage to come to her room. The respondent is alleged to have fled the scene upon\r\nseeing them.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. FIR No. 163 of 2004 was registered at PS Sarwna on the basis of the\r\nstatement of the victim and the investigation commenced. Lallan Prasad was the\r\nIO and later, Suresh Yadav took over the investigation from him. Upon the\r\ncompletion of the investigation, the IO submitted a charge-sheet under Section 173\r\nof the Code of Criminal Procedure 1973 for offences under Sections 307, 341, 376\r\nand 448 of the IPC. The victim died on 14 December 2004, leading to the\r\nsubmission of a supplementary charge-sheet against the respondent, with\r\nreference to Section 302 of the IPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. Based on the submissions which have been canvassed on behalf of the\r\nparties, two questions arise for determination:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>a. Whether the statement of the deceased is relevant under Section 32(1)\r\nof the Indian Evidence Act 1872 and\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>b. Whether the prosecution has proved the charges against the respondent\r\nbeyond reasonable doubt.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>59. For these reasons, we find that the prosecution proved its case beyond\r\nreasonable doubt before the Sessions Court. The High Court ought not to have\r\noverturned the Sessions Court’s judgment for the reasons discussed previously.\r\nWhile this Court does not ordinarily interfere with orders of acquittal passed by High\r\nCourts, it may exercise its power to do complete justice and reverse orders of\r\nacquittal to avert a miscarriage of justice.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> We therefore set aside the High Court’s\r\ndecision dated 27 January 2018 and restore the Sessions Court’s judgment dated\r\n10 October 2006 convicting the respondent of offences punishable under Sections\r\n302, 341, 376 and 448 of the IPC, as well as its order dated 11 October 2006\r\nsentencing the respondent to rigorous imprisonment for life for the offence\r\npunishable under Section 302 of the IPC and rigorous imprisonment for 10 years\r\nfor the offence punishable under Section 376 of the IPC. These sentences are to\r\nrun concurrently. The respondent shall be taken into custody to serve the sentence\r\nimmediately. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>62. Whether a woman is “habituated to sexual intercourse” or “habitual to sexual\r\nintercourse” is irrelevant for the purposes of determining whether the ingredients\r\nof Section 375 of the IPC are present in a particular case. The so-called test is\r\nbased on the incorrect assumption that a sexually active woman cannot be raped.\r\nNothing could be further from the truth – a woman’s sexual history is wholly\r\nimmaterial while adjudicating whether the accused raped her. Further, the\r\nprobative value of a woman’s testimony does not depend upon her sexual history.\r\nIt is patriarchal and sexist to suggest that a woman cannot be believed when she\r\nstates that she was raped, merely for the reason that she is sexually active.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>63. The legislature explicitly recognized this fact when it enacted the Criminal\r\nLaw (Amendment) Act 2013 which inter alia amended the Evidence Act to insert\r\nSection 53A. In terms of Section 53A of the Evidence Act, evidence of a victim’s\r\ncharacter or of her previous sexual experience with any person shall not be\r\nrelevant to the issue of consent or the quality of consent, in prosecutions of sexual\r\noffences.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>65. Although the “two-finger test” in this case was conducted over a decade ago,\r\nit is a regrettable fact that it continues to be conducted even today.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>68. Any person who conducts the “two-finger test” or per vaginum examination\r\n(while examining a person alleged to have been subjected to a sexual assault) in\r\ncontravention of the directions of this Court shall be guilty of misconduct.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n69. The appeal is allowed in the above terms.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n70. Pending application(s), if any, stand disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e652f1b38e2bc8b180b54e6b6a1e78a3.jpeg', '4d42af12eedbac6666ad0f4ea0c4ed02.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-02', 1, '', '', '2022-11-01 11:49:26', '2022-11-02 09:21:16'),
(2358, 'JdB5pIWKa99dPScb0ZLSSKXU1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Existence of an independent arbitration agreement would not preclude a reference under the Micro Small Enterprises Facilitation Council Small and Medium Enterprises Development Act, 2006. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gujarat State Civil Supplies Vs Mahakali Foods Pvt. Ltd and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8008 of 2022 decided on 31 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice Uday Umesh Lalit and Justice Bela M .Trivedi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The appellant Gujarat State Civil Supplies Corporation Ltd.\r\n(Original Petitioner), has challenged the Order dated 13.11.2019\r\npassed by the Gujarat High Court in the First Appeal No. 3613/2019,\r\nwhereby the High Court has dismissed the said appeal filed by the\r\nappellant under Section 37 of the Arbitration and Conciliation Act,\r\n1996 (Hereinafter referred to as “the Arbitration Act, 1996”). In the\r\nsaid First Appeal, the appellant had challenged the Order dated\r\n20.08.2018 passed by the Commercial Court, Ahmedabad in\r\nCommercial Civil Misc. Application No. 54/2016 filed under\r\nSection 34 of the Arbitration Act read with Section 19 of the Micro,\r\nSmall and Medium Enterprises Development Act, 2006 (hereinafter\r\nreferred to as “the MSMED Act, 2006”), whereby the commercial <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">court had confirmed the award made by the Madhya Pradesh Micro\r\nand Small Enterprises Facilitation Council, Bhopal in Reference No.\r\nNSEFC 442/2012, holding that the provisions of MSMED Act, 2006\r\nhad an effect overriding the provisions of the Arbitration Act and\r\nthat the Facilitation Council at Bhopal had the jurisdiction to\r\nadjudicate upon the disputes between the parties.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. In the background of afore-stated spectrum of cases, following common\r\nquestions of law arise for consideration:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Whether the provisions of Chapter-V of the MSMED Act, 2006\r\nwould have an effect overriding the provisions of the Arbitration\r\nAct, 1996?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) Whether any party to a dispute with regard to any amount due\r\nunder Section 17 of the MSMED Act, 2006 would be precluded\r\nfrom making a reference to the Micro and Small Enterprises\r\nFacilitation Council under sub-section (1) of Section 18 of the\r\nsaid Act, if an independent arbitration agreement existed <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">between the parties as contemplated in Section 7 of the\r\nArbitration Act, 1996?\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(iii) Whether the Micro and Small Enterprises Facilitation Council,\r\nitself could take up the dispute for arbitration and act as an\r\narbitrator, when the council itself had conducted the conciliation\r\nproceedings under sub-section (2) of the Section 18 of the\r\nMSMED Act, 2006 in view of the bar contained in Section 80 of\r\nthe Arbitration Act,1996?</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. Now, the first and foremost issue involved in these appeals is whether the\r\nprovisions contained in Chapter V of the MSMED Act, 2006 with regard to the\r\nDelayed Payments to Micro and Small Enterprises would have the precedence\r\nover the provisions contained in the Arbitration Act, 1996, more particularly when\r\nthe parties by execution of an independent agreement as contemplated in Section\r\n7 of the Arbitration Act had agreed to submit to arbitration the disputes arising\r\nbetween them? In other words, whether the provisions contained in Chapter V of\r\nthe MSMED Act, 2006 would have an effect overriding the provisions contained\r\nin the Arbitration Act, 1996?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. Keeping in view the aforestated principles of statutory interpretations as\r\nalso the proposition of law laid down by this Court with regard to the general\r\nrules of construction, let us proceed to examine whether the MSMED Act, 2006\r\nis a special enactment having an effect overriding the Arbitration Act, 1996 which\r\nis perceived to be a general enactment? As stated earlier, the very object of\r\nenacting MSMED Act, 2006 was to facilitate the promotion and development,\r\nand enhance the competitiveness of micro, small and medium enterprises. The\r\nAct also aimed to ensure timely and smooth flow of credit to the micro, small and\r\nmedium enterprises, and to minimize the incidence of sickness. One of the main\r\nobjects of the Act was to delete the Interest on Delayed Payments to Small Scale\r\nand Ancillary Industry Undertakings Act, 1993, and to include stringent\r\nprovisions as also to provide dispute resolution mechanism for resolving the\r\ndisputes of non-payment of dues to the micro and small enterprises. Thus, the\r\nseed of MSMED Act, 2006 had sprouted from the need for a comprehensive\r\nlegislation to provide an appropriate legal framework and extend statutory\r\nsupport to the micro and small enterprises to enable them to develop and grow\r\ninto medium ones.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">21. Section 15 to 25 contained in Chapter-V of the MSMED Act, 2006 pertain\r\nto the ‘delayed payments to micro and small enterprises.’ A bare perusal of the\r\nsaid provisions contained in Chapter-V shows that a strict liability is fastened on\r\nthe buyer to make payment to the supplier who supplies any goods or renders any </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">services to the buyer, prescribing the time limit in Section 15. Section 16 further\r\nfastens the liability on the buyer to pay compound interest if any buyer fails to\r\nmake payment to the supplier as required under Section 15. Such compound\r\ninterest is required to be paid at three times of the bank rate notified by the\r\nReserve Bank, notwithstanding contained in any agreement between the buyer\r\nand supplier or in any law for the time being in force. An obligation to make\r\npayment of the amount with interest thereon as provided under Section 16 has\r\nbeen cast upon the buyer and a right to receive such payment is conferred on the\r\nsupplier in Section 17. Thus, Section 17 is the ignition point of any dispute under\r\nMSMED Act, 2006. Section 18 thereof provides for the mechanism to enable the\r\nparty to the dispute with regard to any amount due under Section 17, to make a\r\nreference to the Micro and Small Enterprises Facilitation Council. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. Section 18 starts with a non obstante clause i.e., ‘notwithstanding anything\r\ncontained in any other law for the time being in force’. It means that the said\r\nprovision has been enacted with the aim to supersede other laws for the time being\r\nin force. Further a dedicated statutory forum i.e., the Micro and Small Enterprises\r\nFacilitation Council (As established under Section 20 of the MSMED Act, 2006),\r\nhas been provided to which a reference could be made by any party to the dispute.\r\nSub-section (2) of Section 18 empowers the Facilitation Council, on receipt of\r\nsuch reference made under sub-section (1), to conduct Conciliation in the matter\r\nor seek assistance of any institution or centre providing alternate dispute\r\nresolution services by making a reference to such an institution or centre, for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">conducting Conciliation, as contemplated in Section 65 to 81 of the Arbitration\r\nAct, 1996. If the conciliation initiated under sub-section (2) is not successful and\r\nstands terminated without any settlement between the parties, the Council is\r\nfurther empowered under sub-section (3) to either itself take up the dispute for\r\narbitration or refer to it any institution or centre providing alternate dispute\r\nresolution services for such arbitration. The provisions of Arbitration Act, 1996\r\nare then made applicable to the dispute as if the arbitration was in pursuance of\r\nan arbitration agreement referred to in sub-section (1) of Section 7 of the\r\nArbitration Act, 1996. Sub-section (4) of Section 18 again starts with a non\r\nobstante clause i.e., ‘notwithstanding anything contained in any other law for the\r\ntime being in force’, and confers jurisdiction upon the Facilitation Council to act\r\nas an arbitrator or a conciliator in a dispute between the supplier located within\r\nits jurisdiction and a buyer located anywhere in India. Sub-section (5) of Section\r\n18 fixes the time limit of ninety days to decide such reference. Section 19\r\nprescribes the procedure to be followed when any application is made in the court\r\nfor setting aside any decree, award or other order made either by the Council itself\r\nor by any institution or centre to which reference is made by the Council. Section\r\n24 of the MSMED Act, 2006 states that the provisions of Section 15 to 23 shall\r\nhave an effect notwithstanding anything inconsistent therewith contained in any\r\nother law for the time being in force</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. Thus, the Arbitration Act, 1996 in general governs the law of Arbitration\r\nand Conciliation, whereas the MSMED Act, 2006 governs specific nature of\r\ndisputes arising between specific categories of persons, to be resolved by\r\nfollowing a specific process through a specific forum. Ergo, the MSMED Act,\r\n2006 being a special law and Arbitration Act, 1996 being a general law, the\r\nprovisions of MSMED Act would have precedence over or prevail over the\r\nArbitration Act, 1996. In Silpi Inustries case (supra) also, this Court had observed <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">while considering the issue with regard to the maintainability and counter claim\r\nin arbitration proceedings initiated as per Section 18(3) of the MSMED Act, 2006\r\nthat the MSMED Act, 2006 being a special legislation to protect MSME’s by\r\nsetting out a statutory mechanism for the payment of interest on delayed\r\npayments, the said Act would override the provisions of the Arbitration Act, 1996\r\nwhich is a general legislation. Even if the Arbitration Act, 1996 is treated as a\r\nspecial law, then also the MSMED Act, 2006 having been enacted subsequently\r\nin point of time i.e., in 2006, it would have an overriding effect, more particularly\r\nin view of Section 24 of the MSMED Act, 2006 which specifically gives an effect\r\nto the provisions of Section 15 to 23 of the Act over any other law for the time\r\nbeing in force, which would also include Arbitration Act, 1996.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. The aforesaid legal position also dispels the arguments advanced on behalf\r\nof the counsel for the buyers that the Facilitation Council having acted as a\r\nConciliator under Section 18(2) of the MSMED Act, 2006 itself cannot take up\r\nthe dispute for arbitration and act as an Arbitrator. Though it is true that Section 80 of the Arbitration Act, 1996 contains a bar that the Conciliator shall not act as\r\nan Arbitrator in any arbitral proceedings in respect of a dispute that is subject of\r\nconciliation proceedings, the said bar stands superseded by the provisions\r\ncontained in Section 18 read with Section 24 of the MSMED Act, 2006. As held\r\nearlier, the provisions contained in Chapter-V of the MSMED Act, 2006 have an\r\neffect overriding the provisions of the Arbitration Act, 1996. The provisions of\r\nArbitration Act, 1996 would apply to the proceedings conducted by the\r\nFacilitation Council only after the process of conciliation initiated by the council\r\nunder Section 18(2) fails and the council either itself takes up the dispute for\r\narbitration or refers to it to any institute or centre for such arbitration as\r\ncontemplated under Section 18(3) of the MSMED Act, 2006. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34. The upshot of the above is that:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Chapter-V of the MSMED Act, 2006 would override the provisions\r\nof the Arbitration Act, 1996.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) No party to a dispute with regard to any amount due under Section 17\r\nof the MSMED Act, 2006 would be precluded from making a\r\nreference to the Micro and Small Enterprises Facilitation Council,\r\nthough an independent arbitration agreement exists between the\r\nparties.<span style=\"font-size: 12pt;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) The Facilitation Council, which had initiated the Conciliation\r\nproceedings under Section 18(2) of the MSMED Act, 2006\r\nwould be entitled to act as an arbitrator despite the bar contained\r\nin Section 80 of the Arbitration Act.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iv) The proceedings before the Facilitation Council/institute/centre\r\nacting as an arbitrator/arbitration tribunal under Section 18(3) of\r\nMSMED Act, 2006 would be governed by the Arbitration Act,\r\n1996.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(v) The Facilitation Council/institute/centre acting as an arbitral\r\ntribunal by virtue of Section 18(3) of the MSMED Act, 2006\r\nwould be competent to rule on its own jurisdiction as also the\r\nother issues in view of Section 16 of the Arbitration Act, 1996.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(vi) A party who was not the ‘supplier’ as per the definition contained\r\nin Section 2(n) of the MSMED Act, 2006 on the date of entering\r\ninto contract cannot seek any benefit as the ‘supplier’ under the\r\nMSMED Act, 2006. If any registration is obtained subsequently\r\nthe same would have an effect prospectively and would apply to\r\nthe supply of goods and rendering services subsequent to the\r\nregistration.<span style=\"font-size: 12pt;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(I) C.A. No …… of 2022 (@ SLP(Civil) No. 12884 of 2020)\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) In this case, the Gujarat State Civil Supplies\r\nCorporation Ltd. had challenged the award made by the\r\nFacilitation Council, Bhopal before the Commercial Court,\r\nAhmedabad, under Section 34 of the Arbitration Act, 1996 and\r\nthe commercial court vide Order dated 20.08.2018 had\r\nconfirmed the said award. The appeal being the F.A. No.\r\n3613/2019 filed by the appellant-Gujarat State Civil Supplies\r\nCorporation under Section 37 of the Arbitration Act, 1996 before\r\nthe High Court of Gujarat was dismissed by the High Court vide\r\nthe impugned Order dated 13.11.2019.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) In the said First Appeal, the appellant had raised the\r\nissue with regard to the jurisdiction of the Facilitation Council,\r\nBhopal, M.P. to decide the disputes between the appellant and\r\nrespondent no. 1- Mahakali Foods Pvt. Ltd. The High Court\r\nfollowing its earlier decision in Principal Chief Engineer Vs.\r\nM/s. Manibhai & Brothers (Sleeper) & Anr19 held that Section <span style=\"font-size: 12pt;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>18 of the MSMED Act, 2006 would have an overriding effect\r\nover any other law for the time being in force including the\r\nArbitration Act, 1996. The High Court also held that the\r\ncontention with regard to the jurisdiction having not been raised\r\nat the time of filing the statement of defence or reply, the said\r\ncontention raised subsequently could not be accepted.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>\r\n(iii) As already held in the earlier part of this judgement,\r\nthe provisions contained in Chapter-V of the MSMED Act, 2006\r\nhave an effect overriding any other law for the time being in force\r\nincluding the Arbitration Act. We therefore do not find any\r\ninfirmity in the impugned order passed by the High Court.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>The appeal stands dismissed accordingly</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '47b9d4f3c10f6c4f49932c39990d41e9.jpeg', '254033ac2c80131cc231909c7ec3881b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-02', 1, '', '', '2022-11-01 12:03:43', '2022-11-02 10:55:59'),
(2359, '7JAONypVR8L6iMXI4CQGskK2f', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque bounce case. Partnership firm cannot be held liable for dishonour of the cheque issued by a partner in his individual capacity. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Sri. Vinayaka Projects Vs A Suresh Babu.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 102079 of 2018 decided on 10 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The respondent filed a complaint under Section 138 of the\r\nNegotiable Instruments Act alleging that the cheque which was\r\nissued by the accused No.2 towards legally recoverable debt when\r\npresented for reliazation was returned for “want of funds”. The\r\nlearned Magistrate after recording the sworn statement, took the\r\ncognizance of the offence punishable under Section 138 of the\r\nNegotiable Instruments Act and issued summons against which the\r\naccused No.1 is before this Court. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. On perusal of the complaint, it indicates that the\r\ncheque in question was issued by the accused No.2 in favour of\r\nthe complainant and when the same was presented for realization,\r\nthe cheque was dishonoured for “want of funds”. On perusal of the\r\ncheque, it indicates that the accused No.2 has issued the cheque\r\nin favour of the complainant in his individual capacity and not on\r\nbehalf of the petitioner-accused firm. Even otherwise, the partners\r\nof the firm having been not arrayed as accused to the complaint,\r\nthe petitioner cannot be held vicariously guilty and as such, the\r\ncomplaint is hit of Section 141 of the Negotiable Instruments Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The criminal Petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '55169e097e89dbcd4f4e0938d89a1355.jpeg', 'c52f6dc0ffdb749a35e4e11da03f7ce7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-04', 1, '', '', '2022-11-02 13:36:27', '2022-11-04 03:21:34'),
(2360, 'D4zKjT0eX8FQTodjwwUPXTTTU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prior service rendered by a teacher in Government Aided Institution shall be counted for the purpose of fixing pension. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gundappa Vs The Principal Secretary Education Department and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 104469 of 2021 decided on 11 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">The petitioner was appointed as a Lecturer in a\r\nGovernment Aided Arts and Commerce College, Mudalagi\r\non 25.09.1989, and his probationary period was declared\r\nas satisfactory on 01.10.1992. After completing 23 years\r\nof service, the petitioner submitted an application with the\r\nthird respondent to appoint him as an Associate Professor.\r\nOn considering his application, the petitioner was\r\nappointed as an Associate Professor in Kannada\r\nDepartment on 10.04.2012. The petitioner attained the\r\nage of superannuation on 28.04.2014. Thereafter, the\r\npetitioner submitted an application dated 02.12.2014 with\r\nthe first respondent to consider the prior service rendered </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by him in the Government Aided College for the purpose of\r\npension.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. The first respondent rejected the application\r\nsubmitted by the petitioner stating that the prior services\r\nrendered by him in an aided institution cannot be\r\nconsidered for fixing the pension against which he\r\npetitioner filed a writ petition in W.P. No.104477/2015.\r\nThis Court, by order dated 08.03.2021 quashed the\r\nendorsement rejecting the application submitted by the\r\npetitioner, and directed the first respondent to reconsider\r\nthe claim of the petitioner for counting of his qualifying\r\nservice for the purpose of fixing pension by taking into\r\nconsideration the prior services rendered by him in the\r\naided institution, strictly in accordance with the Rules.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. Thereafter, the first respondent has issued the\r\nimpugned endorsement dated 03.08.2021 rejecting the\r\nclaim of the petitioner stating that the petitioner was\r\nappointed in the third respondent University after\r\n01.04.2006 and in view of the amended rule i.e., Rule 2-C. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the Karnataka Civil Services Rules (for short, ‘the\r\nRules’), the petitioner is not entitled for counting of his\r\nservices rendered in Government Aided College, against\r\nwhich the present petition is filed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. A reading of Rule 224-B of the Rules indicates\r\nthat every employee desirous of having the benefit of\r\ncounting their previous service of additional years as\r\nqualifying service for pension, as the case may be under\r\nthe Rules shall make a request in writing to the Appointing\r\nAuthority within three months from the date of joining the\r\nGovernment service. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Rule 2-C of the Rules specifies that\r\nNotwithstanding anything contained in sub-rule (1) of Rule\r\n2, Part IV of these Rules, shall not be applicable to new\r\nrecruits to State Government service joining on or after 1st\r\nApril, 2006. In the instant case, the petitioner was\r\nappointed as a Lecturer in the Government Aided\r\nInstitution in the year 1989. The petitioner is entitled to\r\nthe benefit under Rule 224-B of the Rules since he was\r\nappointed in the Government Aided institution prior to\r\n2006 and after completing 23 years of service was\r\nappointed as an Associate Professor in the third\r\nrespondent-University<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\ni) The writ petition is allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9475506039855cc4bb8723f5cb039eb7.jpeg', '6bbf1130c6e1b8a6519c7eeda9084791.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-03', 1, '', '', '2022-11-02 13:58:32', '2022-11-03 08:29:31'),
(2361, '6s7pEruP4ffWYwZu6H6Iy1XNk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Employees Compensation Act, 1923. Section 4A(3)(a). Interest at 12% per annum shall be awarded from the date of the accident and not after expiry of thirty days thereafter. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Malan Begum and others Vs M/s Padmashree Road Lines and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Miscellaneous First Appeal 202376 of 2018 decided on 10 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Pradeep Singh Yerur.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. Brief facts of the case are as under:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">One Sri Gousuddin was working as driver under\r\nrespondent No.1. On 22.03.2016 at about 2.30 p.m.\r\nGousuddin had parked the lorry/Container bearing\r\nNo.AP-28/TB-4885 in Chandan Compound Lane No.4, in\r\nfront of Padmashree road lines, Bhiwandi, District Thane\r\nfor loading the goods and thereafter Gousuddin slept in\r\nthe lorry after having dinner, during his sleep at on\r\n23.03.2016 about 2.04 a.m., he accidentally fell down </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">from lorry/Container due to which he sustained grievous\r\ninjury over the head and died on the spot.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. On the basis of material evidence, both oral\r\nand documentary the Commissioner allowed the petition\r\npartly and directed the second respondent, being the\r\ninsurer to satisfy the award of compensation of\r\n`7,83,000/- with interest at 6% per annum after expiry\r\nof thirty days from the date of accident till its\r\nrealization.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Being dissatisfied with the impugned order of\r\nthe Commissioner, the petitioners are before this Court. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. Having heard learned counsel for the\r\npetitioners and respondents. The substantial question of\r\nlaw that arises for consideration before this Court is ;-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>Whether the court below was justified in\r\nawarding the interest at the rate of 6% per annum\r\nafter expiry of thirty days from the date of accident\r\ntill its realisation instead of awarding 12% per\r\nannum as per provisions of Section 4A(3)(a) of the\r\nEmployee\'s Compensation Act, 1923 ? </b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. As stated earlier the only substantial question\r\nof law is with regard to awarding interest at the rate of\r\n6% per annum after expiry of thirty days from the date\r\nof accident till its realisation. It is contention of the\r\nlearned counsel for the petitioners that the interest\r\nought to have been awarded at 12% per annum as\r\ncontended in Section 4A(3)(a) of the Employee\'s\r\nCompensation Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. Keeping the above Section in mind with\r\nregard to award of interest, there is no ambiguity in the\r\nabove said provision with regard to awarding of simple\r\ninterest at the rate of 12% per annum. The question\r\nnow boils down as to from which date and from when\r\nthe interest has to be awarded. The Commissioner has\r\nawarded interest at the rate of 6% per annum after\r\nexpiry of thirty days from the date of accident till its\r\nrealisation. It is the vehement contention and argument\r\nof learned counsel for the petitioners that the interest\r\nhas to be awarded at 12% per annum and the same will\r\nhave to be awarded from the date of occurrence of\r\naccident rather than after expiry of thirty days from the\r\ndate of accident. I am in agreement with the contentions\r\nput-forth by the learned counsel for the petitioners that\r\nthe award of interest is to be at 12% per annum and the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">same requires to be granted from the date as soon as it\r\nfalls due, which is none other than the date of death of\r\nthe deceased or immediately on the death of deceased.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. In the present facts and circumstances of the\r\ncase the issue of interest and date of awarding interest\r\nbeing the only substantial question of law and having\r\ndiscussed the above based on the proposition of law in\r\nSection 4A(3)(a) of the Employee\'s Compensation Act <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and the precedent laid down by the Hon\'ble Apex Court\r\nin the aforestated judgment there is no iota of doubt in\r\nmy mind that the interest would have to be awarded at\r\n12% per annum and the same will have to be awarded\r\nand paid from the date of death of the deceased, which\r\nin otherwise means that the liability to pay the interest\r\non the compensation awarded and the arrears of\r\ncompensation would have to be paid from the date when\r\nit falls due which is from the date of accident/death of\r\nthe deceased employee. The substantial question of law\r\nis answered in favour of petitioners.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">27. In view of the above discussions and the\r\nreasons stated, the appeal succeeds. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\nAppeal is partly allowed.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8a12c16118919f5196f8069dde8a57ab.JPG', 'b4d9db659b02df2fd0c6550619a610c2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-03', 1, '', '', '2022-11-02 14:09:46', '2022-11-03 12:21:33');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2362, 'ZyhHSpLPUcvuzgFnVl5VO1hom', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Devotees can question grant of occupancy rights in favour of Archak/Poojary under the Karnataka Certain Inams Abolition Act, 1977. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">H.S. Ananda and others Vs H.V. Rathnamma and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 8766 of 2021 decided on 10 October 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Krishna S. Dixit.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">In W.P.No.28236/2018, this is a legal battle for land of the temple waged by & between a devotee & the Managing Committee of the Temple on the one hand and the persons claiming to be it’s archaks cum cultivators on the other. The application in Form 1 claiming regrant in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respect of land in question was made by the private respondents on 13.01.1993 u/s 5 of the Karnataka Certain Inams Abolition Act, 1977. The Land Tribunal vide order dated 3.3.2018 having regranted the land in favour of private respondents, aggrieved thereby, petitioners are knocking at the doors of Writ Court.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court is inclined to grant indulgence in the matter for the following reasons:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(a) The application in Form 1 seeking regrant of land was filed u/s 5 of the 1977 Act on 13.01.1993, the Karnataka Act No.3 of 1991 having prescribed 31.03.1991 as the last date for making the application. That being the position, the application made beyond the statutory limit is no application in the eye of law and therefore, could not have been favourably treated by the respondent-Land Tribunal. Added, there is no provision for the condonation of delay and that prescription of limitation period is by the legislature itself. The vehement contention of learned counsel appearing for the Archak & his sister that a Division Bench of this Court in SRIPATHY GOVIND BHAT VS STATE OF KARNATAKA ILR 2003 KAR 4196, has held that the time limit is directory in nature and therefore, merely because the application was made beyond the statutory limitation, regrant of land cannot faltered, is difficult to agree with.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">(b) The Division Bench in the said decision was considering mainly as to who could lay a challenge to the order of the kind and thus incidentally treated the question of limitation by making some passing observations. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Therefore, the same cannot be treated as a Thumb Rule. It has been a settled position of law since the days of LORD HALSBURY vide QUINN VS. LEATHAM, (1901) A.C. 495, 506 that a case is an authority for the proposition that it actually lays down in a given fact matrix and not for all that which logically follows from what has been so laid down.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(c) The submission of learned counsel for the petitioners that it has been the villagers who have been cultivating the land in question and using the usufructs thereof for the maintenance of temple in question and also for periodic jaatra, gains support from the long & uninterrupted entries standing in the revenue records which enjoy presumptive value u/s 133 of the Karnataka Land Revenue Act, 1964. There is of course a sporadic entry for the year 1975-76 wherein along with a member of the Temple Managing Committee, name of one Mr.Veeraiah under whom private respondents claim also figures, is true. How all of a sudden, his name gained entry to the revenue records is not forthcoming from the records. It is a mystery wrapped in enigma. Nothing is stated by the Tribunal <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">either, about this. A sporadic adverse entry of the kind does not enjoy presumptive value qua regular & long standing other entries and therefore, it is bereft of rebuttal force, as rightly submitted by learned counsel appearing for the petitioners.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(e) The last contention of learned counsel for the respondents that petitioners lack locum & locus standii for maintaining the Writ Petition, is bit difficult to countenance. The observations of the Division Bench in SRIPATHY GOVIND BHAT, supra giving such an impression were made in a different fact matrix. Added, the contra contention of learned counsel appearing for the petitioners is supported by the decision of the Apex Court in BISHWANATH VS. SHRI THAKUR RADHABALLABHJI, AIR 1967 SC 1044. It also draws support from another Division Bench decision in W.P.No.9623/1988 between M.PUNDALIKAPRABHU VS. ADDITIONAL LAND TRIBUNAL, disposed off on 22.02.1994 (LANS(KAR)-1994-2-17). <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">In W.P.No.8766/2021, petitioners lay a challenge to the orders of Civil Courts dated 22.10.2020 & 27.1.2020, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which in effect have granted injunctive relief in favour of private respondents on the basis of order of the Land Tribunal whereby regrant of land was made in their favour. Even direction for police protection is also structured on the basis of Land Tribunal order. Now, the said Land Tribunal order itself is being set at naught in the accompanying W.P.No.28236/2018, the impugned orders in this petition do lose the substratum, to stand on and therefore, are liable to be voided.</span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">In the above circumstances, both the Writ Petitions succeed; a Writ of Certiorari issues quashing the order of the Land Tribunal; similarly, a writ of certiorari also issues quashing the order of temporary injunction, the order in M.A.No.9/2019 affirming the grant of temporary injunction and also the order directing police aid. Entries in Revenue Records shall be restored as before, forthwith.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Costs made easy. </span></p>', '6e14295f35bcd96c6cd22543bb6aa028.JPG', '761be27c461c07888545d97f43f0b504.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-03', 1, '', '', '2022-11-02 15:55:57', '2022-11-03 10:32:28'),
(2367, '188NQJk9eEuJbsxbjZ1mXccjN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Disciplinary proceedings against daily wage employee can be initiated under the Karnataka Daily Wage Employees Welfare Act, 2012 only if his name is notified by the State Government as daily wage employee. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>T.R. Ragunath Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. 18180 of 2022 decided on 15 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice G. Narendar and Justice C.M. Joshi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts are not in dispute and the short\r\nquestion that arises for consideration is whether the\r\nenquiry directed against the petitioner and conducted by\r\nrespondent No.2 is without jurisdiction?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The case of the petitioner is that his services\r\nhave been utilized by the Department of Municipal\r\nAdministration as a Junior engineer on a daily wage basis\r\nfrom the year 1996 and till date of the impugned order he\r\nwas continued in the service as a casual employee and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">daily wager and his services have neither been regularized\r\nnor it appears that he had sought for regularization.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. The writ petition can be disposed of on the\r\nshort ground of maintainability of the disciplinary\r\nproceedings. On the reading of Rule 3, it is apparent that\r\nSub Rule (1) (b) of Rule 3 of the Karnataka Civil Services\r\n(Classification, Control and Appeal) Rules, 1957 clearly\r\nexempts the persons in casual employment from the ambit\r\nof the Rules, 1957. It is not disputed that the present\r\npetitioner was employed and continued till the date of\r\nimpugned order as a daily wager.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Section 5 of the Act, 2012 deals with the\r\nconduct and discipline and stipulates that the provisions of\r\nthe Rules, 1957, shall be applicable to daily wage\r\nemployers. Though at a first glance, it could be said that\r\nthe Conduct Rules are applicable, the Tribunal has missed\r\na crucial point while holding that the Conduct Rules are\r\napplicable to daily wage employer.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. It is fairly contended by learned High Court\r\nGovernment Pleader for the respondent No.1 that the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">name of the petitioner has not been notified though it is\r\nnot in doubt that he is employed with a notified institution.\r\nThe fact remains that the names of the persons eligible to\r\nprotection under the Act, 2012 are required to be notified\r\nby the State Government within a year from the date of\r\nenactment of the statute.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 13. It is fairly submitted that no notification\r\nnotifying the petitioner as a daily wager in the notified\r\nestablishment has been issued till date. In that view of the\r\nmatter, unless and until the name of the daily wagers is\r\nnotified by the State Government, the provisions of the\r\nKarnataka Daily Wage Employees Welfare Act, 2012 cannot\r\nbe invoked, muchless the provisions of Section 6 can be\r\ninvoked.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 14. In that view of the matter and in view of the\r\nundisputed fact, we are constrained to hold the finding of\r\nthe Tribunal that the enquiry is sustainable in view of the\r\nprovisions of Sections 5 and 6 of the Karnataka Daily Wage\r\nEmployees Welfare Act, 2012 as bad in law and negative\r\nthe same.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. The petitioner not being notified as a daily\r\nwager in terms of Section 3 of the Karnataka Daily Wage\r\nEmployees Welfare Act, 2012, the provisions of Rule 3\r\n(1)(b) kicks in and the enquiry has to be held as one\r\nwithout jurisdiction. Consequently, the entrustment\r\ninvoking the provisions of Rule 14-A of the Karnataka Civil\r\nService (Classification, Control and Appeal) Rules, 1957\r\nalso suffers from grave error for want of jurisdiction. On\r\nthat ground also, the enquiry and consequential report are\r\nto be held as being without jurisdiction. Accordingly, we\r\nare of the considered opinion that disciplinary enquiry\r\nrequires to be set aside and is accordingly, set aside.\r\nConsequentially, the penalty imposed is also of no\r\nconsequence and is accordingly, set aside.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n Ordered accordingly.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0e72f66fb0f48eeb72397a8a13d02e3a.jpeg', '67db7affab38079deefd5c7f35d32e61.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-05', 1, '', '', '2022-11-03 15:55:01', '2022-11-05 06:28:25'),
(2363, '90KbsnOJp2ADsr0XOrrlKIgdE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Default imprisonment for non-payment of fine is a penalty and not a sentence. The default sentence cannot be for a period more than one fourth of maximum imprisonment period that can be imposed as sentence. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>J. Kannan Vs State<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 299 of 2016 decided on 14 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Between the period August 2009 and\r\n30.10.2012 , accused No .1 worked as Assistant\r\nManager at Syndicate Bank, Yeshwantpur Branch,\r\nBengaluru. Accused No .3 , Rama Naik was the\r\nChief Manager of the branch at that time. Accused\r\nNo. 2 is the brother of accused No.1 .</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. As per the banking procedure, the policy\r\nguidelines covering the Drawee Bill Scheme (DBS)\r\nwas given into effect in the year 2006 . The\r\nbranches o f the bank were required to obtain\r\ndocuments as per Manual of Instruction on\r\ndocumentation in respect of DBS and also another\r\nscheme called BCAS (Bills Co-Acceptance Scheme).\r\nWhen the banks migrated to Core Banking\r\nSolutions (CBS), each bill discounted under the\r\nscheme would come under sanctioned limit o f the\r\nparty i.e., the borrower. Whenever the drawee\r\nbills were tendered by the eligible borrower, the\r\nconcerned Clerk/Maker would make the entries in\r\nthe system in FCC Module (Flexi Cube Corporate)\r\nand the same would be authorized by the\r\nofficer/checker after verifying the genuineness of\r\nthe bill, due date of the bill, interest rate , charges\r\nvalidity of the limits and the sanction limit. I f\r\nevery thing was found correct, the bills would be\r\ndebited and the net amount including the interest </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">would be credited to the Over Draft account of the\r\nparty. For processing the transaction, the\r\nClerk/maker and the officer/checker had their log\r\nin IDs and passwords. There were several General\r\nLedger Folios (GL Accounts) such as Remittance\r\nParking GL, Online Suspense GL, Term Deposit\r\n(TD) renewal GL etc., with a provision to transfer\r\nthe funds from various Parking GL heads to any\r\nparty’s accounts as per the wishes of the\r\nborrower. The Parking GL was the temporary\r\nmedia to route the transaction of the bank.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. The trial court convicted and sentenced\r\naccused No.1 for the offences punishable under\r\nsections 120B, 420, 468, 471 and 477A IPC and\r\nsections 13(1)(c) and 13(1)(d) read with section\r\n13(2) of Prevention o f Corruption Act; and accused <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">No.2 for the o ffence punishable under sections\r\n120B and 420 IPC.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. I prefer to deal with the case put forward\r\nby Sri Shankara M first, for if conviction of\r\naccused No.2 for the offences punishable under\r\nsections 120B and 420 IPC is liable to be set aside\r\non the basis of grounds taken on his behalf, the\r\nconviction of accused No .1 under section 120B\r\nautomatically goes out o f picture as involvement\r\nof a minimum of two persons is a must to\r\nconstitute the offence of conspiracy. Sri\r\nNagamuthu also highlighted the point that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sustainability o f conviction of accused No .1 for the\r\noffence of conspiracy is dependent on\r\nsustainability o f conviction against accused No.2.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. Third point is as to conviction for which of\r\nthree offences namely 468, 471 and 477A is\r\nsustainable. Section 468 IPC is the penal provision\r\nfor committing forgery for the purpose of cheating.\r\nThat means forged document must be used for the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">purpose of cheating . This takes further meaning\r\nthat section 420 IPC should also be proved.\r\nIndeed there is evidence of PW41 that accused\r\nNo.1 had forged the signature of accused No.2 on\r\none cheque and also the signatures of P.Krishna\r\nMurthy and Nirmala. Forged signatures are found\r\nin Ex.P169 , P170 and Ex.P171. P.Krishna Murthy\r\nhas adduced evidence as PW39 and stated that he\r\nhad not drawn the amount mentioned in Ex.P170\r\nand the signature on the back of the cheque is not\r\nhis signature. PW39 was not cross examined by\r\naccused. Therefore even though evidence for\r\nforgery is available , it does not constitute an\r\noffence under section 468, for the forged\r\ndocuments were not used for cheating. However\r\nthe forgery thus proved constitutes an offence\r\nunder section 471 IPC. The reason being that all\r\nthe forged documents were dishonestly or\r\nfraudulently used by accused No.1 as genuine for\r\nmisappropriation or diversion of the funds of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">bank. The argument of Sri Nagamuthu that\r\naccused No.1 should not have been held guilty of\r\noffence under section 471 IPC cannot be accepted.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. Here in this case , accused No .1 is a\r\npublic servant working in the capacity o f Assistant\r\nManager o f Syndicate Bank, Yeshwantpur Branch,\r\nBengaluru. It is not in dispute that he in the\r\ncapacity of Assistant Manager had dominion over\r\nfunds of the bank. All the transactions that led to\r\nhis inculpation only indicate diversion of funds to\r\nhis benefit. The diversion might have resulted in\r\ncausing loss to the bank, but there is no evidence\r\nwhich shows that he deceived the bank in order to\r\ninduce it to deliver property within the meaning of\r\nsection 415 IPC. Though element of fraud is there\r\nin the acts committed by accused No .1, it cannot\r\nbe brought within the scope of sections 415 and\r\n420 IPC. It is a clear case of misappropriation or\r\ndiversion of the funds of the bank. Evidence of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">PW25 shows that he was asked to sign on\r\nwithdrawal slips. It is not his evidence that the\r\nmoney withdrawn by accused No.1 by using the\r\nwithdrawal slips belonged to him. It was a\r\nmisrepresentation to PW25 for diversion of funds\r\nof the bank. The trial court appears to have\r\nproceeded on the footing that misappropriation or\r\ndiversion of the funds also resulted in bank being\r\ncheated. Common parlance thinking may indicate\r\ntwo offences being committed, but given a legal\r\nanalysis, only offence that stands proved is the\r\none punishable under section 409 IPC. There is no\r\nseparate proof for the of fence under section 420\r\nIPC.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>37. For imposing the sentence as above, the trial\r\ncourt has assigned the reasons that in view of decisions of\r\nthe Supreme Court in the cases of Raj Bala vs State of\r\nHaryana [2015 AIR SCW 4774], State of U.P. vs\r\nKishan [AIR 2005 SC 1250] and Dhananjoy\r\nChatterjee vs State of W.B [(1994) 2 SCC 220], and\r\nsection 16 of the P.C Act, since accused No.1\r\nmisappropriated a sum of Rs.12,22,94,260/- by doing\r\nfraudulent transactions, there are no mitigating\r\ncircumstances favouring him.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>38. I do not think the trial court has erred in\r\nimposing sentence of imprisonment and fine in the context <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of gravity of the offence. But where it has erred is in\r\nimposing imprisonment for committing default in payment\r\nof fine. As has been rightly argued by Sri Nagamuthu,\r\nimprisonment to be imposed for non-payment of fine is\r\nnot a sentence, it is a penalty. This position is made clear\r\nby the Supreme Court in the case of Shahejadkhan\r\n(supra). Section 65 of IPC states that default sentence\r\nshould not exceed one fourth of maximum imprisonment\r\nperiod fixed for the offence. It means default sentence is\r\nextendable up to one fourth of maximum period. The\r\nword ‘extendable’ implies the meaning that default\r\nimprisonment period can be for a period less than one\r\nfourth of maximum imprisonment period that can be\r\nimposed as sentence. Here it is found that the default\r\nimprisonment is really excessive, and it requires\r\nmodification. And as regards fine, accused No.1 is\r\nentitled to be acquitted of the offences punishable under\r\nsections 120B, 420 and 468 IPC and he is to be punished\r\nfor the offence under section 13(2) read with section 13\r\n(1) (c) of the P.C Act instead of section 409 IPC though he </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is convicted for both the offences. For all the offences,\r\nthe total amount of fine imposed by the trial court is\r\nRs.60,00,000/-. Now that accused No.1 is entitled to be\r\nacquitted of some of the offences and modification of\r\nsentence as stated above, the fine amount gets reduced to\r\nRs.22,00,000/-. Considering the amount of\r\nmisappropriation to the tune of Rs.12,22,94,260/-, the\r\nfine imposed by the trial court appears to be less, but the\r\nrespondent has not preferred appeal seeking\r\nenhancement. Hence the fine amount in respect of\r\noffences for which conviction is retained cannot be\r\nmodified.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER: <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) Criminal Appeal 299/2016 is partly\r\nallowed. Judgment of the trial court is\r\nmodified concerning accused No.1. He\r\nis acquitted of the offences under\r\nsections 120B, 420 and 468 IPC and\r\nsection 13 (2) read with section 13(1)\r\n(d) of P.C Act. His conviction for the\r\noffences under section 409 IPC and\r\nsection 13(2) r/w section 13 (1)(c) is\r\nretained, but sentence for the offence\r\nunder section 13(2) read with section\r\n13(1)(c) is retained and sentence for\r\nthe offence under section 409 is set\r\naside. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '26b08a2e2807035fd8194346ba76c1d8.JPG', '74a617f14a07d8e5da71444a901929b6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-04', 1, '', '', '2022-11-03 12:26:37', '2022-11-04 06:41:42'),
(2364, 'f1IivyY4gw2xVjIkWU3dApL9k', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. If there is considerable time gap between the persons seeing together and the proximate time of the crime, the circumstances of last seen together, even if proved cannot clinchingly fasten the guilt of the accused. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State of Maharashtra and another Vs Maroti Pimpalkar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1874 of 2022 decided on 2 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ajay Rastogi and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. This Court in Shalu Ojha v. Prashant Ojha observed: “this is an unfortunate case where the\r\nprovisions of the Protection of Women from Domestic\r\nViolence Act, 2005 are rendered simply a pious hope of\r\nthe Parliament and a teasing illusion for the appellant”.\r\nEven while, borrowing those words, we may say, we are <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not peeved, but certainly pained, as a legitimate\r\nprosecution under another Act viz., the Protection of\r\nChildren from Sexual Offences Act, 2012 (for short\r\n“POCSO Act”), has been throttled at the threshold by the\r\nexercise of power under Section 482 of the Code of\r\nCriminal Procedure, 1973 (for short ‘Cr.P.C.’), without\r\npermitting the materials in support to it to see the light of\r\nthe day in respect of misprision of sexual assault against\r\nminor tribal girls in a girls’ hostel. As per the impugned\r\njudgment, the High Court of Judicature at Bombay,\r\nNagpur Bench in Criminal Application (APL) No.841 of\r\n2019 dated 20.04.2021 quashed FIR No.185 of 2019\r\ndated 12.04.2019 of Rajura Police Station and the final\r\nreport filed thereon under Section 173(2), Cr.P.C. qua the\r\nRespondent. The raison d\'etre for the said opening\r\nremarks would be unraveled by the factual narration and\r\nthe legal analysis to be made hereinafter.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Apprehending arrest in connection with the said\r\ncrime, the respondent herein filed an anticipatory bail\r\napplication before the Ld. Sessions Judge on 10.06.2019\r\nand the same was rejected on 25.06.2019. The said order\r\nwas challenged before the High Court and the High Court\r\nallowed the appeal and granted him protection from <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">arrest. Thereafter, the respondent herein filed Criminal\r\nApplication (APL) No.841/2019 under Section 482 of the\r\nCr.P.C. seeking quashment of the FIR dated 12.04.2019\r\nand the chargesheet dated 08.06.2019 to the extent they\r\nare against him. The High Court passed the impugned\r\njudgment and quashed the FIR as also the chargesheet\r\nqua the respondent. Hence, this appeal. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. If FIR and the materials collected disclose a\r\ncognizable offence and the final report filed under Section\r\n173(2), Cr.P.C. on completion of investigation based on it\r\nwould reveal that the ingredients to constitute an offence\r\nunder the POCSO Act and a prima facie case against the\r\npersons named therein as accused, the truthfulness,\r\nsufficiency or admissibility of the evidence are not\r\nmatters falling within the purview of exercise of power\r\nunder Section 482 Cr.P.C. and undoubtedly they are\r\nmatters to be done by the Trial Court at the time of trial.\r\nThis position is evident from the decisions referred supra. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. In the instant case, a scanning of the recitals in\r\nparagraph No.10 of the impugned judgment would\r\nundoubtedly reveal the fact that the High Court had\r\nformed an opinion on perusal of the statement of a\r\nteacher of the victims and also the statements of the\r\nvictims that sexual assault was detected only from the\r\nGeneral Hospital, Chandrapur and then arrived at the\r\nconclusion that the Respondent was not made aware of\r\nsexual assault committed on the victims and there is no <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">evidence to implicate him in the said crime.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. Thus, a bare perusal of the above extracted recitals\r\nfrom paragraph No.10 of the impugned judgment would\r\nreveal that the High Court had gone through the\r\nstatements of victims/witnesses cited by the prosecution,\r\nto arrive at the conclusion as to the existence or\r\notherwise of evidence against the respondent. In view of\r\nthe provisions referred above and also plethora of\r\ndecisions including the decisions in M.L. Bhatt’s case\r\n(Supra) and in Rajeev Kourav’s case (supra), statements\r\nrecorded under Section 161 Cr.P.C. are inadmissible in\r\nevidence and, therefore, could not have been made the\r\nbasis for arriving at such conclusions. As noted above, the\r\nFIR carries suspicion of commission of sexual assault and\r\nthe charge-sheet reveals prima facie against the\r\nrespondent in relation to non-reporting of such an offence\r\nunder the POCSO Act. The very case of the Appellant is\r\nthat some among the seventeen victims have given\r\nstatements under Section 161, Cr.P.C. and some others\r\nunder Section164 Cr.P.C., specifically stating that the\r\nrespondent was informed of the sexual assault on them. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">When that be the position, we have no doubt that the\r\nHigh Court should not have embarked upon an enquiry,\r\nespecially by looking into the statements of the victims\r\nrecorded as also their teacher to form an opinion\r\nregarding the availability of evidence to connect the\r\nRespondent with the crime. True that the FIR and the\r\ncharge sheet still remain in fact in respect of the other\r\naccused. But then, non-reporting of sexual assault\r\nagainst a minor child despite knowledge is a serious\r\ncrime and more often than not, it is an attempt to shield\r\nthe offenders of the crime of sexual assault. Be that as it\r\nmay in view of the decision in Shankar Kisan Rao\r\nKhade’s case (supra) holding non-reporting of such a\r\ncrime as serious and in view of the position obtained from\r\na conjoint reading of Sections 19(1) and 21 of POCSO Act,\r\nsuch persons are also liable to be proceeded with, in\r\naccordance with law. In this context, it is also relevant to\r\nrefer to an observation made by this Court in the said\r\ncase that this Court under parens patriae jurisdiction has </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">a duty to give directions for compliance of the provisions\r\nunder the POCSO Act.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">23.... </span></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the case on hand, the High Court arrived at the\r\nfinding of absence of evidence to implicate the respondent\r\nin the crime in question upon going through the\r\nstatements of the victims and also the statement of the\r\nteacher of the victims, which recourse is absolutely\r\nimpermissible. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. There is yet another reason to decline the aforesaid\r\ncontention of the respondent. We would not have even\r\nperused Annexures- A1 to A8, which are statements of\r\nsome of the victims recorded under Section 161/164,\r\nCr.P.C., recorded much prior to the impugned judgment\r\ndated 20.4.2021 viz., in the year 2019 itself. We do so\r\nsolely to verify the verity of the finding of the High Court\r\nto the effect that such statements do not disclose\r\nanything suggesting knowledge of the respondent about\r\nthe commission of the crime. In troth, those statements\r\ndid mention about divulgation of sexual assault on them\r\nby victims to the respondent. We may hasten to add, at\r\nthe risk of repetition, that such statements recorded\r\nunder Section 161/164, Cr.P.C. are inadmissible in\r\nevidence, as held in M.L. Bhatt’s case (supra) and in\r\nRajeev Kourav’s case (supra). In the light of the\r\ncircumstances available as above and in the light of\r\nSection 59 of the Evidence Act, the High Court was not\r\njustified in bringing abrupt termination of the proceedings\r\nqua the respondent. The position revealed from the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">discussion above constrains us to hold that there is prima\r\nfacie case against the respondent for the offence referred\r\nabove and hence, the appeal is liable to succeed.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>25. In the light of the decisions and the provisions\r\nreferred above, the impugned judgment resulting in\r\nquashment of the stated FIR and the charge-sheet\r\nthrottling the prosecution at the threshold, without\r\nallowing the materials in support of it to see the light of\r\nthe day, cannot be said to be as an exercise done to\r\nsecure interests of justice whereas it can only be stated\r\nthat such exercise resulted in miscarriage of justice.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>26. In the result, the impugned judgment of the High\r\nCourt is set aside and the Appeal is, accordingly allowed.\r\nPending applications, if any, are disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4785c8f687551871ffd6cc9e26976ff2.jpeg', '5db428f165c485b6a0c8f7f692d631c1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-04', 1, '', '', '2022-11-03 12:50:19', '2022-11-04 08:35:18');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2365, 'hoGxVRFry6D1BrjNqnkhXV9zj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'MVC Act. The principle of “pay and recover” applies even when owner of vehicle had contested claim petition before the Tribunal or filed appeal against the award. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>A Banu Prakash Vs Thimma Setty and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.F.A. 4945 of 2014 decided on 1 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hanchate Sanjeevkumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The brief facts of the case are as under: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The claim petition came to be filed under Section\r\n166 of the MV Act in MVC No.392/2010, contending that\r\non 13.04.2010 at about 10.00 p.m., the claimant had\r\nbeen to Kalasapura in order to attend the festival. After\r\nattending the festival, he was proceeding in a Maruthi\r\nOmni bearing Reg.No.KA-01-M-7359 driven by\r\nrespondent No.1 from Kalasapura to his village. While he\r\nwas so proceeding, two kilometers away from\r\nKalasapura, respondent No.1 being the driver of Maruthi\r\nOmni drove the said vehicle in a rash and negligent\r\nmanner in a high speed. As a result, the vehicle toppled.\r\nDue to the accident, the claimant sustained grievous\r\ninjuries. Immediately, the claimant was taken to MG\r\nHospital, Chikmagalur where he took treatment as\r\ninpatient and after discharge from the hospital, he took\r\ntreatment as out patient. He spent more than <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rs.30,000/- towards medical and other incidental\r\nexpenses. Due to the injuries sustained in the accident,\r\nhe could not attend to his duty for about one and half\r\nmonths and thereby, lost his income. Therefore, he has\r\npreferred a claim petition in MVC No.392/2010, seeking\r\ncompensation under Section 166 of the MV Act.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. In the present case, the Tribunal has awarded\r\nthe compensation but fastened the liability on the\r\nappellant/owner of the offending vehicle on the ground\r\nthat the appellant has violated the policy conditions by\r\nallowing the driver to use the said vehicle for some other\r\npurpose. Since the offending vehicle was used for hire\r\nbasis as admitted by PW.1 in his evidence that the\r\ndriver of the offending vehicle demanded Rs.20/- as fair\r\nto travel in the said vehicle, the tribunal has assigned\r\nthat the vehicle was used for hire/commercial purpose.\r\nTherefore, exonerated the insurance company by\r\nfastening liability on the appellant/owner of the vehicle.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">10. This ratio cannot be accepted for the reason\r\nthat when the claimants/the victims of the motor\r\naccident are third parties, then rights of the third party is\r\nstatutorily protected as per sub-section(1) of Section\r\n149 of the M.V.Act. Therefore, this right of the third\r\nparty cannot be fluctuated or oscillated according to the\r\nconduct of the owner or any other parties. The owner\r\nmay contest the claim petition or not, or may prefer an\r\nappeal or may not prefer appeal, that cannot decide the\r\nrights of third party. The principle of pay and recovery is\r\na beneficial provision to the victims who are third\r\nparties. The motor vehicle Act is a beneficial legislation\r\nto the claimants being third party who are sufferers of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the motor vehicle accident. They are not concerned with\r\nwhether the owner has contested or not contested before\r\nthe Tribunal or in the appeal. But the paramount thing is\r\nto be considered is the rights of the third parties are to\r\nbe protected as per Statute. Therefore, just because the\r\nowner has contested the claim before the Tribunal\r\nor/and preferred appeal before this Court, that cannot\r\naffect rights of the third parties who are victims in the\r\nroad traffic accident. Therefore, the principle that once\r\nthe right is granted/protected unless there is express\r\nprovision contrary to that, the rights of third parties are\r\nnot affected in this regard. This Court cannot accept the\r\ncontention of the Insurance Company as above stated.\r\nTherefore, this Court inclines to protect the rights of the\r\nclaimants/third parties in the present case by applying\r\nprinciple of pay and recovery.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 11. Admittedly, in the present case, the claimant\r\nis a third party. Therefore, the interest of the third\r\nparty, who is the victim in the motor vehicle accident is</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">statutorily protected under Section 149 of the M.V.Act.\r\nAs per clause (i) sub-section (2) of Section 149 of the\r\nAct, if the Insurance Company has successfully\r\nestablished the defence, then the Insurance Company\r\nhas to satisfy the claim of third party at first instance\r\nand recover the same from the owner of offending\r\nvehicle. On the principle of pay and recovery, the\r\nHon\'ble Apex Court in the cases of Pappu and this Court\r\nin the case of Yellavva (supra), this Court has laid down\r\nguidelines. Therefore, an order of pay and recovery is\r\nmade directing the Insurance Company to pay the\r\ncompensation amount at the first instance and then\r\nrecover the same from the owner of the offending\r\nvehicle as per the decision of the Hon\'ble Apex Court in\r\nthe catena of decision.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. Therefore, it is ordered that the Insurance\r\nCompany shall pay the compensation amount as\r\nawarded by the Tribunal at first instance and recover the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">same from the owner of the maruthi van as per law.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. The appeal is hereby allowed in part. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd8b33906f187be5e1d6d2be28e688edd.JPG', '154699d77ad2bdcf250f5911c4c4eb08.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-05', 1, '', '', '2022-11-03 13:08:01', '2022-11-05 09:29:17'),
(2366, '6kOPhZhSX9PhLmdSbdJoyg0VF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When the prosecution fails to prove major offence, the minor and related offence falls into insignificance and the accused will be entitled to acquittal. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>State of Karnataka Vs Mathru Sateri Gurav.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 100536 of 2021 decided on 1 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B.M. Shyam Prasad and Justice G Basavaraja.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved and dissatisfied with the\r\njudgment and order of acquittal dated 03/03/2020\r\npassed by the Learned III Addl. District and Sessions\r\nJudge, Belagavi in S.C. No.157/2018 for the offence\r\npunishable under Section 376 of Indian Penal Code(for\r\nShort ‘IPC’) and Sections. 4 and 6 of the Protection of\r\nChildren from Sexual Offences Act, 2012 (for short, the\r\n‘POCSO Act’), the appellant-State of Karnataka has\r\npreferred this appeal to grant leave to appeal as\r\nprovided under Section 378(1) (3) of the Code of\r\nCriminal Procedure (for short ‘Cr.P.C’) interalia\r\nchallenging the judgment and order of acquittal in\r\nfavour of the respondent-accused.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts as per prosecution case are that\r\nthe complainant and the victim are permanent residents<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> Jainkoppa village of Khanapur taluka. The young girl\r\ncame home on January 5, 2018, at around 17.30, left\r\nher school bag there, and then proceeded to play with\r\nher friends near her school. The accused respondent\r\ncalled the victim girl by making hand motions while she\r\nwas playing with her friends in Anganawadi ground.\r\nWhen she came there, the accused threatened CWs.14\r\nto 17 and made them flee away before taking the victim\r\ngirl away from the Anganawadi school. The accused\r\n/respondent then placed the victim girl on the ground,\r\nremoved her undergarments, gagged her mouth to stop\r\nher from yelling, conducted a sexual assault, and\r\ncriminally intimidated the victim girl to not disclose the\r\nsame to anyone. Therefore, the accused has committed\r\noffences punishable under Sections 376, 506, and\r\nSections 4 and 6 of the POCSO Act. The Complainant,\r\nmother of the victim girl CW.1- Meenakshi Vittal\r\nTakkekar, had lodged the complaint. Upon receipt of the\r\ncomplaint, the police registered the case in Crime\r\nNo.13/2018 offenses punishable under Section 376, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">506 and Sections 4 and 6 of the POCSO Act, and\r\nsubmitted FIR to the Court on 10/01/2018 at 4.00 A.M.\r\nThe accused was produced before the learned\r\nMagistrate on the same day and was remanded to\r\njudicial custody. The remand was extended from time to\r\ntime till the disposal of the case. After filing the charge\r\nsheet, the Court has taken cognizance of the\r\ncommission of the alleged offenses, and the case was\r\nregistered in SC.No.157/2018. The learned Sessions\r\nJudge has framed the charges against the accused for\r\nthe alleged commission of offenses. The accused has\r\npleaded not guilty and claimed to be tried.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. On hearing the arguments of both sides and\r\non perusing the facts and circumstances of the case,\r\nthis Court has to examine whether the prosecution has\r\nmade out a case to allow this appeal and convict the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">accused for the offences for which the charges are\r\nframed as against just the conviction passed by the trial\r\nCourt for the commission of offences punishable under\r\nSection 506 of IPC.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. In the instant case, on 23/12/2019 the Session\r\njudge has recorded the evidence the of PW.2 in the\r\npresence of her mother-PW.1, after putting few\r\npreliminary questions in order to test the competency of\r\nthe victim child. The evidence of PW.1 is inconsistent\r\nwith the statement under Section 164 of Cr.P.C. which\r\nis marked as Ex.P.4. The statement under Section 164\r\nof Cr.P.C. is recorded by the learned Additional Civil\r\nJudge and JMFC, Khanapur on 12/01/2018 in the\r\npresence of her mother PW.1, wherein the age of the\r\nvictim is shown as nine years. In order to satisfy\r\nwhether the child is competent to give rationale answers\r\nto questions put to the child on the facts. The learned\r\nMagistrate has not inquired about this witness before\r\nrecording her statement whether this witness is capable <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of giving a statement or not. The learned Magistrate has\r\nnot complied with the mandatory provision of the Oath\r\nAct before recording the statement of a witness who is\r\nbelow the age of 12 years. The evidence of PW.2\r\nrecorded by the learned Sessions Judge discloses that\r\nthe victim is unable to understand things and oath was\r\nnot administered to the victim.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">18. Although, learned counsel for the petitioner\r\nplaced reliance on Shivanna @ Tarakari Shivanna to\r\ncontend that the statements made under Section 164 of\r\nCr.P.C. have to be construed as substantive evidence,\r\nwe do not think that the said contention can be\r\naccepted in view of the judgements of the Hon’ble\r\nSupreme Court referred to above and particularly the\r\nlatest judgment in Somasundaram @ Somu wherein the\r\nearlier judgments on the point have been considered.\r\nWe have also already noted, evidence stricto senso is\r\nwhat is recorded by the Special Court before itself and\r\ncannot be equated with the statement of the victim </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under Section 164 of Cr.P.C. It is well known principle\r\nof law that a statement under Section 164 Cr.P.C.\r\ncannot be treated as substantive evidence of the facts\r\nstated. Such a statement can be used to discredit the\r\nevidence of the witness, but not for any other purpose. It\r\nwas also observed that Section 157 of the Evidence Act\r\nmakes it clear that a statement recorded under Section\r\n164 Cr.P.C., can be relied upon for the purpose of\r\ncorroborating statements made by witnesses in the\r\ncommittal Court or even to contradict the same. As the\r\ndefense had no opportunity to cross-examine the\r\nwitnesses whose statements are recorded under Section\r\n164 Cr.P.C., such statements cannot be treated as\r\nsubstantive evidence, vide CCE vs. Duncan Agro\r\nIndustries Limited, [(2000) 7 SCC 53].</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. An appeal as an instrument of interest of justice,\r\nto meet the justice, it is extremely unsafe and hazardous\r\nto base the conviction for the alleged minor offence\r\n,based only on the child/victim evidence on record,\r\nwhen the accused is already been exonerated for alleged\r\nmajor offences, moreover when the competence of PW2\r\nand credibility of the witnesses are in doubt ,also when\r\nentire prosecution papers raise a question as to the\r\nhappening of alleged offence, the Sessions Judge ought\r\nnot have convicted the accused, who was 60 years old at\r\nthe time of alleged incident. The best possible evidence\r\nis not brought by the prosecution and even the learned\r\nSessions Judge has failed to observe the fact of link\r\nbetween the major offences and the alleged minor\r\noffence. Offence u/s. 506 IPC, could only happen, if the\r\nalleged incident is proved by the witnesses of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">prosecution. The learned Session judge has convicted\r\nthe accused for the commission of offence punishable\r\nunder Section 506 of IPC, when the complaint Ex.p1\r\n,itself is not proved , as the complainant PW.1, has\r\nturned hostile and has not supported the prosecution.\r\nThe appellate court while appreciating the evidence in\r\ntoto has to consider the probability of happening of the\r\nincident, when the material witnesses have not\r\nsupported the case of prosecution. It is also duty of the\r\nappellate court that whether conviction for the minor\r\noffence is separable, when the major alleged offences are\r\nacquitted. Though there are no legal and acceptable\r\nevidence of PW2, the learned Sessions Judge has\r\nconvicted the accused for the alleged commission of\r\noffence punishable under Section 506 of IPC which is\r\nnot sustainable in law.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 22. “Justice must not only be done, but must\r\nalso be seen to be done”. This dictum was laid down by\r\nLord Hewart, the then Lord Chief Justice of England in\r\nthe case of Rex v. Sussex Justices, [1924] 1 KB <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">256. Accused rights are imbibed with the personal liberty\r\nwhich is enshrined under Art.21 of the Indian\r\nConstitution and considering the fact that the major\r\nalleged offences are already acquitted by the sessions\r\njudge ,which carries the weightage of innocence as to\r\nthe alleged offence, imparting the jurisprudence of the\r\nadversarial criminal justice delivery system , to avoid\r\nthe miscarriage of Justice ,it is just and proper to\r\ninterfere in the impugned judgment passed by the\r\nSessions Judge by invoking the power under Sec.386 of\r\nCr.P.C..</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. For the aforesaid reasons, we are of the\r\nopinion that the prosecution has failed to prove the guilt\r\nof the accused punishable under Sections 376, and 506 of IPC and Sections 4 and 6 of POCSO Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i) The criminal appeal is dismissed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ii) The order of conviction and sentence passed\r\nagainst the accused for the commission of an offense\r\npunishable under Section 506 of IPC is set aside and\r\nthe accused-respondent acquitted from the commission\r\nof the alleged offense punishable under Section 506 of\r\nIPC. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7aac6b6e541e45c690546280859c92e9.jpeg', '600d966a76cd9de174a34f196d101a7d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-04', 1, '', '', '2022-11-03 13:22:37', '2022-11-04 10:42:43'),
(2451, 'mnvMf8dZvndsCtjBbt9EcYRbe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal proceedings under the Karnataka Private Medical Establishment Act, 2007 cannot be initiated except on a complaint in writing by the authorized officer. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Venkatesha Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 103052 of 2022 decided on 14 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.  <o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The First Information Report was filed against the\r\npetitioner for the offences punishable under Sections 420 and\r\n19(1) of the Karnataka Private Medical Establishment Act, 2007\r\n(for short, “the Act”) alleging that the petitioner was practicing\r\nMedicine without possessing required qualification and without\r\nobtaining permission from the competent authority. The Police,\r\nafter investigation, submitted the charge sheet for the\r\naforesaid alleged offences against the petitioner. Taking\r\nexception to the same, this petition is filed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. In the present case, the learned Magistrate has\r\ntaken cognizance on the basis of a report submitted by the\r\nPolice under Section 173 of Cr.P.C., which is impermissible,\r\nsince Section 19-A of the Act specifies that cognizance can be\r\ntaken only on a complaint in writing by the authorized officer.\r\nHence, the registration of FIR culminating in submitting the\r\ncharge sheet against the petitioner is without authority of law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\nThe criminal petition is allowed. </b></span></p>', 'ec5652c4ed6153e1ca1da0ed17face1d.jpeg', 'e072c902a2335b77b2e1ebbba81b26fa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-01', 1, '', '', '2022-11-29 16:58:37', '2022-12-01 09:12:38'),
(2453, 'lE6IfpQe0DbkVzGUyhUqS8GOy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'While making claim for rebate of duty under Rule 18 of the Central Excise Rules, 2002, the period of limitation prescribed under Section 11B of the Central Excise Act, 1944 is applicable. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sansera Engineering Limited Vs Deputy Commissioner.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8717 of 2022 decided on 29 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice M.M. Sundresh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order dated 23.07.2021 passed by the High Court of Karnataka at\r\nBengaluru in Writ Appeal No. 249/2020, whereby the Division Bench of\r\nthe High Court has dismissed the said appeal preferred by the appellant\r\nherein and has confirmed the common judgment and order dated\r\n22.11.2019 passed by the learned Single Judge dismissing the writ\r\npetitions, upholding the order passed by the respondent rejecting the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">claim of the appellant for rebate on the ground that the claim was barred\r\nby time/limitation prescribed under Section 11B of the Central Excise\r\nAct, 1944 (hereinafter referred to as the ‘Act’), the original writ\r\npetitioner/appellant herein has preferred the present appeal.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts leading to the present appeal in nutshell are as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>That the appellant herein – M/s Sansera Engineering Limited is a\r\nmanufacturer of excisable goods. It exported goods on payment of\r\nexcise duty between August, 2015 and October, 2015 and filed claims\r\nfor rebate of duty paid on the goods exported on 10.02.2017 to the\r\ntune of Rs. 29,47,996/- and Rs. 42,27,928/- under Rule 18 of Central\r\nExcise Rules, 2002 (hereinafter referred to as the ‘2002 Rules’) in\r\nrespect of these exports. Subsequently on 14.02.2017, for the period\r\nOctober 2015 to March 2016, the appellant claimed rebate of Rs.\r\n1,47,27,766/-.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">6... </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The short question which is posed for consideration of this Court\r\nis, “whether the claim for rebate of duty provided under Rule 18 of the\r\nCentral Excise Rules, 2002, the period of limitation prescribed under\r\nSection 11B of the Central Excise Act, 1994 shall be applicable or not?</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. It is the case on behalf of the appellant that as in Rule 18 of the\r\n2002 Rules and notification dated 6.9.2004, there is no mention to the\r\napplicability of Section 11B of the Act and that the claim for rebate of\r\nduty under Rule 18 is different and distinct than that of the claim for\r\nrefund of duty under Section 11B of the Act, the period of limitation <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">prescribed under Section 11B of the Act shall not be applicable, while\r\nconsidering the claim for rebate of duty under Rule 18 of the 2002 Rules.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. At this stage, it is to be noted that Section 11B of the Act is a\r\nsubstantive provision in the parent statute and Rule 18 of the 2002 Rules\r\nand notification dated 6.9.2004 can be said to be a subordinate\r\nlegislation. The subordinate legislation cannot override the parent\r\nstatute. Subordinate legislation can always be in aid of the parent\r\nstatute. At the cost of repetition, it is observed that subordinate\r\nlegislation cannot override the parent statute. Subordinate legislation\r\nwhich is in aid of the parent statute has to be read in harmony with the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">parent statute. Subordinate legislation cannot be interpreted in such a\r\nmanner that parent statute may become otiose or nugatory. If the\r\nsubmission on behalf of the appellant that as there is no\r\nmention/reference to Section 11B of the Act either in Rule 18 or in the\r\nnotification dated 6.9.2004 and therefore the period of limitation\r\nprescribed under Section 11B of the Act shall not be applicable with\r\nrespect to claim for rebate of duty is accepted, in that case, the\r\nsubstantive provision – Section 11B of the Act would become otiose,\r\nredundant and/or nugatory. If the submission on behalf of the appellant\r\nis accepted, in that case, there shall not be any period of limitation for\r\nmaking an application for rebate of duty. Even the submission on behalf\r\nof the appellant that in such a case the claim has to be made within a\r\nreasonable time cannot be accepted. When the statute specifically\r\nprescribes the period of limitation, it has to be adhered to.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. Now so far as the reliance placed upon the decision of this Court in\r\nthe case of Raghuvar (India) Ltd. (supra), relied upon by the learned\r\nsenior counsel on behalf of the appellant is concerned, on considering\r\nthe relevant provisions of Central Excise Act, namely, Sections 11A &\r\n11B of the Act, we are of the opinion that the said decision shall not be\r\napplicable with respect to the period of limitation prescribed under\r\nSection 11B of the Act with respect to claim for rebate of duty. The\r\nquestion involved in the Raghuvar (India) Ltd. (supra) was with respect\r\nto recovery of Modvat wrongly availed. In that case, it was the\r\nmanufacturer who claimed the benefit under Section 11A of the Act by\r\nstating that no recovery could be made beyond the period of one year\r\nlimitation under Section 11A of the Act. This Court negated that claim by\r\nobserving that recovery contemplated under Section11A is different and\r\ndistinct from the Modvat wrongly availed. For reaching that conclusion, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">this Court considered that the recovery of Modvat would be governed by\r\na special provision contained in Rule 57-I and therefore the provision of\r\nSection 11A of the Act, which is a general provision, shall not be\r\napplicable. In the present case, as observed hereinabove, section 11B\r\nof the Act shall be specifically applicable with respect to claim for rebate\r\nof duty. Therefore, as such, section 11B of the Act cannot be said to be\r\na general provision. Therefore, the period of limitation prescribed under\r\nSection 11B of the Act shall have to be made applicable with respect to\r\nclaim for rebate of duty</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. At this stage, the decision of the Bombay High Court in the case of\r\nEverest Flavours Ltd.(supra) is required to be referred to. In the said\r\ncase, the Bombay High Court was considering the limitation prescribed\r\nunder Section 11B of the Act with respect to rebate of excise duty. In the\r\nsaid decision, it is specifically observed that since statutory provision for\r\nrefund in Section 11B ibid brings within its purview, a rebate of excise <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">duty, Rule 18 of the 2002 Rules cannot be read independent of\r\nrequirement of limitation prescribed in Section 11B. Before the Bombay\r\nHigh Court, the decision of the Madras High Court in the case of Dorcas\r\nMarket Makers Pvt. Ltd. (supra), which is relied upon on behalf of the\r\nappellant was also pressed into service by the assessee. However, the\r\nBombay High Court did not agree with the said decision. The Bombay\r\nHigh Court also distinguished the decision of this Court in the case of\r\nRaghuvar (India) Ltd. (supra).</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>We are in complete agreement with the view taken by the Bombay\r\nHigh Court in the case of Everest Flavours Ltd. (supra). Contrary\r\ndecisions of Madras High Court, Allahabad High Court, Punjab &\r\nHaryana High Court and Rajasthan High Court, referred to hereinabove,\r\nare hereby overruled.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. In view of the above and for the reasons stated above, it is\r\nobserved and held that while making claim for rebate of duty under Rule\r\n18 of the Central Excise Rules, 2002, the period of limitation prescribed <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under Section 11B of the Central Excise Act, 1944 shall have to be\r\napplied and applicable. In the present case, as the respective claims\r\nwere beyond the period of limitation of one year from the relevant date,\r\nthe same are rightly rejected by the appropriate authority and the same\r\nare rightly confirmed by the High Court. We see no reason to interfere\r\nwith the impugned judgment and order passed by the High Court. Under\r\nthe circumstances, the present appeal fails and deserves to be\r\ndismissed and is accordingly dismissed. However, there shall be no\r\norder as to costs.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'bc135857a962ad4ae3509edfa3c76495.jpeg', 'b10f565c34d9d5ff6438c640db1d6273.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-01', 1, '', '', '2022-11-30 12:58:46', '2022-12-01 11:06:22');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2369, 'mrnKhdt4GG6g2lRVjM0vyNWfQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Rape on minor. Calculating age of victim girl based upon her mother’s married period is highly improper when there is sufficient evidence to determine the age of the victim girl. Karnataka High Court reverses acquittal of the accused. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State Vs Sharanu.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 200058 of 2014 decided on 27 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.B. Prabhakara Sastry and Justice Anil B. Katti.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State has filed this appeal under Section 378 (1)\r\n& (3) of the Code of Criminal Procedure, 1973, (hereinafter\r\nfor brevity referred to as \"the Cr.P.C.\"), challenging the\r\njudgment of acquittal dated 18-11-2013 passed by the\r\nlearned I Additional Sessions Judge at Gulbarga (hereinafter\r\nfor brevity referred to as \"the Sessions Judge\'s Court\") in\r\nSessions Case No.335/2012, acquitting the accused of the\r\noffences punishable under Sections 450, 376 and 506 of the\r\nIndian Penal Code, 1860 (hereinafter for brevity referred to\r\nas \"the IPC\").</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The summary of the case of the prosecution in\r\nthe Sessions Judge\'s Court was that, the accused, who was\r\na married person having wife and two children and a\r\nresident of the village of the complainant/victim, was asking\r\nher to have sexual intercourse with him and was always\r\nfollowing her and used to threaten her. In the month of\r\nDecember 2011, on a day in the afternoon, when the other\r\nmembers of the family of the victim girl had been to their\r\nagricultural land for work, noticing that the\r\ncomplainant/victim was alone in her house, the accused\r\nbarged into her house and caught hold of her, closed her\r\nmouth with the help of a cloth and assaulted her and\r\ncommitted rape upon her. Further, the accused threatened\r\nher of killing her in case if she revealed about the incident\r\nto anyone. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">It is further the case of the prosecution that,\r\nsubsequently, on many occasions, the accused had sexual\r\nintercourse with the complainant by putting her under life\r\nthreat. He used to further threaten her that in case if she\r\nreveals the same to anyone, he would take her to Mumbai </span><span style=\"font-size: 12pt;\">and sell her to others. Due to such repetitive acts of rape\r\nby the accused upon her, the complainant (victim girl) got\r\npregnant, which fact she had not disclosed to anyone.\r\nHowever, when she had been to the house of her aunt\r\nsituated at a place called Honnakiranagi village, she\r\ndeveloped severe pain in her stomach. Her aunt took her to\r\nthe Hospital, where, after examination, the Doctor told her\r\nthat the complainant/victim girl was pregnant of two and a\r\nhalf months. Later, at the request of her aunt, the Doctor\r\nmedically terminated the pregnancy of the complainant.\r\nHowever, the parents of the victim girl came to know about\r\nthe said fact of she becoming pregnant and the fact of\r\nmedical termination of her pregnancy. Thereafter, the\r\nparents of the victim convened a Panchayat in the village.\r\nThough the accused did not attend the said Panchayat, but\r\nhis parents, who attended the Panchayat, before the elders\r\nin the village, agreed to perform the marriage of the victim\r\ngirl with their son, i.e. the accused - Sharanu @\r\nSharanappa. It was also agreed that their marriage to\r\nbe registered in the Office of the Registrar of Marriages at </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Kalaburagi (then Gulbarga). However, the accused failed to\r\ncome to Kalaburagi and failed to marry her. On the other\r\nhand, the accused threatened the victim girl and her family\r\nmembers stating that, he would burn them by setting their\r\nhouse on fire. It is on the above lines, the\r\ncomplainant/victim girl lodged a complaint with the\r\nappellant - Police on the date 03-04-2012. After registering\r\nthe same, in their Station Crime No.104/2012, for the\r\noffences punishable under Sections 448, 376 and 506 of the\r\nIPC, the appellant - Police conducted the investigation and\r\nfiled charge sheet against the accused for the offences\r\npunishable under Sections 448, 376 and 506 of the IPC.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. After hearing the learned counsels for the parties,\r\nthe points that arise for our consideration in this appeal are:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>[i] Whether the prosecution has proved\r\nbeyond reasonable doubt that the accused on a day\r\nin the month of December 2011, in the afternoon\r\ncommitted the house trespass of the house of the\r\ncomplainant/victim at Keroouru village, within the\r\nlimits of the complainant Police Station, with an\r\nintention to commit rape on the victim which is an\r\noffence punishable with imprisonment upto for life and\r\nthereby committed the offence punishable under\r\nSection 450 of the IPC?\r\n</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b> [ii] Whether the prosecution has proved\r\nbeyond reasonable doubt that, the accused on the\r\ndate, time and place mentioned above committed\r\nrape on the victim girl/complainant and thereby\r\ncommitted an offence punishable under Section 376\r\nof the IPC?\r\n</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b> [iii] Whether the prosecution has proved\r\nbeyond reasonable doubt that, the accused had\r\nthreatened to the life of the victim girl and her\r\nparents i.e. CW-4 - Sri. Subhash and CW-5 -\r\nSmt. Siddamma with an intention to cause alarm to\r\nthem and thereby has committed the offence\r\npunishable under Section 506 of the IPC?\r\n</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b> [iv] Whether the judgment of acquittal under\r\nappeal warrants any interference at the hands of this\r\nCourt?</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>35. In the case on hand, the medical opinion alone\r\ncannot be the main criteria to decide or infer the age of the\r\nvictim girl, for the reason that the prosecution, in order to\r\nprove the age of the victim girl, as she was a minor as on\r\nthe date of incident, has examined PW-14 (CW-18) –\r\nEkadanta, who, undisputedly, is the Head Master of the\r\nSchool where the victim girl studied. The said witness has\r\nstated that according to the records maintained by their\r\nSchool, the date of birth of the victim girl was 05-08-1996.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>39. As per Rule 12(3)(b) of the J.J. Rules, it is only in\r\nthe absence of the matriculation or equivalent certificates or\r\nthe date of birth certificate from the School or a birth\r\ncertificate given by a Corporation or a Municipal authority or\r\na panchayat, the medical opinion would be sought from a\r\nduly constituted Medical Board, which will declare the age of\r\nthe juvenile or the child.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 40. In the instant case, since the certificate issued by\r\nthe School as per Ex.P-6, which is based upon the records\r\nmaintained by it, is placed by the prosecution, the author of\r\nEx.P-6 who is the Head Master of the said School has also\r\nbeen examined as its witness (PW-14), the medical opinion\r\nof PW-10, which, in turn, was based upon a Radiologist\'s\r\nreport and admittedly, when the said Radiologist also was\r\nnot examined, cannot be relied upon, as such, the age of\r\nthe victim girl has to be necessarily held as 15 years 4\r\nmonths as in the month of December 2011. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>46. In the instant case, since it is established that the\r\nvictim girl (PW-3) was minor in her age, at the time of the\r\nalleged incident, her consent would be invalid in the eye of\r\nlaw, as such, the question of the accused having consensual\r\nsex with her after obtaining her consent would not arise.\r\nThus, the act of the accused in the present case in having\r\nsexual intercourse with the victim girl is necessarily to be\r\nheld as an act of rape punishable under Section 376 of the\r\nIPC.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>50. In the instant case, the evidence of PW-3 - the\r\nvictim girl as well the evidence of her parents i.e. PW-2 and\r\nPW-4 clearly goes to establish that, in December 2011,\r\nwhen both the parents of the victim girl had been to their\r\nwork to their agricultural land, the accused entered their\r\nhouse while PW-3 was alone in the house and on the\r\npretext of asking for a cup of drinking water, he went inside\r\nthe house and closed the door of the house. According to\r\nPW-3 - victim girl, he made her to fall on the ground and\r\nthen closed her mouth with a piece of cloth and committed\r\nrape upon her. Thus, the said evidence of PW-2 and PW-4\r\nand more particularly PW-3 the victim girl which has <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">successfully withstood the cross-examination by the\r\naccused proves beyond reasonable doubt that the accused\r\nhad an intention to commit rape upon the victim girl which\r\noffence of rape was punishable with an imprisonment\r\nextendable upto imprisonment for life and thus has\r\ncommitted the offence of house trespass in order to commit\r\nthe offence punishable with imprisonment for life, as\r\nprescribed under Section 450 of the IPC.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>53. Even though the prosecution could able to place\r\nsufficient materials to prove the alleged guilt against the\r\naccused, however, the Sessions Judge\'s Court has erred in\r\nappreciating the materials placed before it in their proper\r\nperspective. The Sessions Judge\'s Court mainly relied upon\r\nthe consent deed at Ex.P-14 and called that the said\r\nadmitted document showed that it was a love affair\r\nbetween the accused and the victim girl and that it was not\r\nan act of rape. Further, giving no valid reasons, they\r\ndisbelieved the date of birth confirmation certificate issued <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by the Head Master of the School at Ex.P-6 and further\r\nobserved that the accused had not put his signature to the\r\nconsent deed at Ex.P-14.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 54. Further more, the learned Sessions Judge\'s Court\r\nadopted its own methodology of calculating the age of the\r\nvictim girl, based upon the statements made by her mother\r\nabout the length of her married life and also birth of the\r\nvictim girl during the said period. When there was sufficient\r\nevidence, both oral and documentary, to determine the age\r\nof the victim girl, which has been analysed above, such an\r\nexercise by the Sessions Judge\'s Court of finding out new\r\nmethod of calculating the age of the victim girl based upon\r\nher mother’s married period was uncalled for, in the facts\r\nand circumstances of the present case.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n 55. It is these reasoning given by the Sessions\r\nJudge\'s Court, which is now proved to be not a proper\r\nreasoning, has led it to pronounce the impugned judgment\r\nof acquittal against the accused. Since the said finding of\r\nthe Sessions Judge\'s Court is now proved to be erroneous</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and since the prosecution has proved the alleged guilt of\r\nthe accused for all the alleged offences beyond reasonable\r\ndoubt, the impugned judgment passed by Sessions Judge\'s\r\nwarrants interference at the hands of this Court and the\r\ncriminal appeal deserves to be allowed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> [i] The present Criminal Appeal\r\nNo.200058/2014 stands allowed. </b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9a6f3096fe5a9851e434bf5c955f504c.jpg', '13d943c4fcfdaeec08125e5b4dd2767e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-07', 1, '', '', '2022-11-04 13:35:40', '2022-11-07 09:15:27'),
(2370, 'NXZQdnu9usb20xbkfvcWDDBrP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Wife cannot be held liable under the N.I Act for dishonour of the  cheque issued by her husband though the loan transaction is joint. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Veenashri Vs Shankar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 2129 of 2019 decided on 19 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.I. Arun.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">On the ground that the petitioner - accused\r\nNo.2 along with her husband and mother-in-law\r\nowed certain sum of money to the respondent -\r\ncomplainant and in discharge of the legally\r\nenforceable debt, a cheque was issued in favour of\r\nthe respondent and the same was dishonored, a\r\nprivate complaint was filed by the respondent\r\nunder Section 138 of Negotiable Instruments Act,\r\n1881(hereinafter referred to as \'N.I.Act\' for short)\r\nby way of PCR.No.11891/2017, which is presently\r\nregistered as C.C.NO.1220/2018 on the file of 22nd\r\nAdditional Chief Metropolitan Magistrate,\r\nBengaluru. Aggrieved by the same, the petitioner,\r\nwho is accused No.2 in C.C.No.1220/2018 has\r\npreferred the present petition with a prayer to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">quash the proceedings in C.C.No.1220/2018\r\nagainst her.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 2. The case of the petitioner is that she\r\nnever signed the cheque which have been\r\ndishonored and the same were only signed by her\r\nhusband (accused No.1) and she cannot be\r\nprosecuted under the provisions of Section 138 of\r\nthe N.I. Act.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. It is seen from the complaint, the\r\nallegation is that all the three accused persons\r\nincluding the petitioner herein had borrowed hand\r\nloan from the respondent herein and in discharge of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the same, accused No.1, who is the husband of the\r\npetitioner herein issued four cheques, which have\r\nbeen dishonored and accordingly, proceedings\r\nunder Section 138 of the N.I. Act have been\r\ninitiated against the petitioner and two other\r\naccused. However, it is seen that accused is not a\r\nsignatory to the cheque and it is the specifically\r\naverred that it is not a joint account also. In the\r\ncomplaint also, it is specifically stated by the\r\ncomplainant that accused No.1, who is the husband\r\nof the petitioner has issued the cheque. The three\r\naccused in C.C.No.1220/2018 do not constitute a\r\nCompany or a firm or Association of individuals as\r\ncontemplated under Section 141 of N.I. Act.\r\nHence, under the circumstances, petitioner cannot\r\nbe made accused for dishonor of the cheque issued\r\nby her husband and he alone can be prosecuted for\r\nthe same.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n i. The criminal petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '02cd343e9e06a5c38437d307e9fa32b6.JPG', 'b70886cef8c14a10113b8f416bb7bb33.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-05', 1, '', '', '2022-11-04 13:47:57', '2022-11-05 03:27:30'),
(2371, 'y2eYXKJRxIGkZJSckYgf3dkPs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Societies Registration Act. Pre-registration acts cannot be considered for the purpose of invoking Section 27 since the Act makes acts to be unlawful activity only after the registration of the Society. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Bengaluru Urban Zilla Amateur Kabbadi Association and others Vs State of Karnataka and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 17533 of 2022 decided on 17 October 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice M. Nagaprasanna.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. Shorn of unnecessary details, the facts germane for consideration of the lis, are as follows:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The petitioner is a registered Association under the Karnataka Societies Registration Act, 1960 (‘the Act’ for short) represented by its President and Committee Members. The petitioner/Association claims to have an affiliation of 60 clubs and they are said to be&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">members of the petitioner/Association. It is averred that there are about 24 Kabaddi Associations throughout the State and all these Kabaddi Associations are affiliated and are members of the Karnataka Rajya Amateur Kabaddi Association (Regd.) which is a State body. In terms of byelaws of the State Association, the term of the governing body is for a period of 4 years. The petitioner was registered on 28-02-2020. On 16-06-2020 another Association comes up which is respondent No.3 with the same name as that of the petitioner, with a twist. The petitioner is Bengaluru Urban Zilla Amateur Kabaddi Association which is registered on 28-02-2020 and the 3rd respondent is Bangalore Urban District Amateur Kabaddi Association which is registered on 16-06-2020. After coming into existence, the members of the 3rd respondent/Association registered a complaint against the petitioner/Association on 19.10.2020. The allegation against the petitioner/Association was that one Shanmugam who was the General Secretary had forged signatures of Y.M.Balaji Venkatesh and D.Suresh Gowda and had registered the Association then. Pursuant to the registration of the said complaint, an Inquiry Officer was appointed. The Inquiry Officer holds an inquiry with regard to the allegations made against&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the petitioner/Association. The Inquiry Officer holds the allegations against the petitioner/Association to have been proved and based upon the said finding of the Inquiry Officer the District Registrar of Societies under the Act passes an order cancelling registration of the petitioner/Association for violation of Section 27(2) of the Act. It is this order and the report of the Inquiry Officer that are called in question in the first petition.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">9. The afore-narrated facts which lay on a narrow compass do not require reiteration. The factum of election and the genesis of the problem with regard to the election are all dealt with in Writ Petition No.18300 of 2021 which is tagged to these petitions. The&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">issue in the case at hand is whether registration of the petitioner/Association could be cancelled and its name be kept as an additional name in the voters list on the basis of cancellation of registration and in spite of an interim order granted by this Court. The dates are not in dispute. It is on 28-02-2020 the petitioner/Association is registered. On 16-06-2020 the 3rd respondent/Association is registered. The name of the petitioner is ‘Bengaluru Urban Zilla Amateur Kabaddi Association ®’ and the name of the 3rd respondent/Association is ‘Bengaluru Urban District Amateur Kabaddi Association ®’. The difference between the two associations is the word “Zilla” and “District”. Both mean one and the same in Kannada and English versions. Except this change, there is no other change in the names of the Associations. The issue now is whether the 3rd respondent/ Association could have been registered at all.&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ection 7 mandates that Societies should not be registered with undesirable names. The mandate of the provision is that Society shall not be registered by name which in the opinion of the Registrar is undesirable for the reason that a name which is identical with or too nearly reassembles the name by which the Society first in existence has been previously registered would be deemed to be undesirable. If the names of the petitioner/ Association and the 3rd respondent/Association are juxtaposed and considered on the mandate of the statute, what would unmistakably emerge is, the names are identical, they are not too nearly resembling each other but they are the same except usage of version of the language in Kannada and English. Such a Society of the 3rd respondent could not have been registered by the District Registrar after registration of the petitioner/Association as the petitioner/Association is registered long before the registration of the 3rd respondent/Association. This is the genesis of the problem that is generated by the District Registrar.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">11. In the light of the preceding analysis, what would unmistakably emerge is that registration of the 3rd respondent/ Association runs foul of the mandate of Section 7 of the Act, as both the Associations are not too nearly similar but are virtually same. Once a Society is registered with a particular name, registration of a second Society with the same name is impermissible. Section 27 of the Act makes acts to be unlawful activity only after the registration of the Society. The Legislature in its wisdom has not made pre-registration acts an offence.&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Therefore, the very complaint registered, inquiry held and the order of cancellation of registration of the petitioner/Association would all thus be rendered illegal and unsustainable. The manner of conduct of inquiry need not be gone into, as the very complaint registered and the order passed would run foul of Section 27 of the Act. Whether the inquiry has been conducted in consonance with the principles of natural justice or otherwise need not be gone into. In the result what would unmistakably emerge is the illegality of registration of the 3rd respondent/Association and illegal order passed cancelling registration of the petitioner/Association</span><span style=\"font-size: 12pt;\">&nbsp;</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">ORDER</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(i) Writ Petitions are allowed.&nbsp;</span></span></p>', 'b898696538a647391c2bb4977df27ede.jpeg', 'dabeed0440ce27137a6f03d9a09fb7b8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-04', 1, '', '', '2022-11-04 15:19:27', '2022-11-04 12:13:34'),
(2376, 'EaSwwDhxDeYpuHz6AbVLXuWN6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Director General of Foreign Trade is free to change the Export Import (Exim) Policy. Incentive cannot be claimed by exporters as a matter of right. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chowgule and Company Limited Vs Assistant Director General of Foreign Trade and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8225 of 2009 decided on 4 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice Krishna Murari.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts leading to the present appeal in a nutshell are as under:<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>That the appellant is engaged inter alia in the export of processed\r\niron ore and is a recognised trading house. Under the Indian Foreign\r\nTrade Policy (hereinafter referred to as the ‘Exim Policy’) 1988-1991,\r\nthere was a provision of ‘additional licence’ and a trading house would\r\nbe eligible to ‘additional licence’ on the basis of the admissible exports in\r\nthe preceding licensing year. Para 212 of the Exim Policy, 1988-1991\r\nprovided that in considering the eligibility of an exporter for recognition\r\nas a trading house based on Net Foreign Exc<span style=\"font-size: 12pt;\">hange (NFE) earnings from\r\nexport of items specified in Appendix 12 shall not qualify. At the relevant\r\ntime, Appendix 12 provided that export of “Minerals and ores –\r\nunprocessed” would be ineligible for considering the grant of additional\r\nlicence. In the year 1990, there was a change in the Exim Policy and\r\nthe Director General, Foreign Trade came out with a new policy, namely,\r\nExim Policy, 1990-93. There was an amendment in Appendix 12 and the\r\nlist of ineligible items which earlier was “Minerals and ores –\r\nunprocessed”, in the new Appendix 12, it was stated to be “Minerals and\r\nores”.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2.4 Aggrieved by the decision of the second appellate authority, the\r\nappellant filed a writ petition before the High Court being Writ Petition\r\nNo. 286/1996. The High Court, by judgment and order dated\r\n30.01.2001, allowed the said writ petition and quashed and set aside the\r\norder of the Additional Director General of Foreign Trade dated\r\n12.01.1996 denying the benefit of additional licence and directed the\r\ndepartment to pay to the appellant the premium of Rs.1,21,69,200/-.\r\nWhile directing so, the High Court observed and held that the appellant\r\nwas eligible for the benefit under the Exim Policy during the period 1991-\r\n92 and therefore there was no justification nor any legal basis for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">denying the claim on the ground of withdrawal of Policy in 1992-93 by\r\npublic notice dated 29.02.1992. In sum and substance, the High Court\r\nwas of the view that the subsequent change in the policy and/or\r\nwithdrawal of the policy in the year 1992-93 shall not be applicable and\r\nthe appellant shall not be denied the benefit of additional licence on the\r\naforesaid ground. The judgment and order passed by the High Court in\r\nWrit Petition No. 286/1996 was the subject matter of appeal before this\r\nCourt being Civil Appeal No. 5764 of 2001.</span><span style=\"font-size: 12pt;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. We have heard learned counsel for the respective parties at\r\nlength.\r\nAt the outset, it is required to be noted that the appellant is\r\nclaiming the benefit of additional licence on the export of “processed iron\r\nore” exported during the Exim Policy 1990-93. It is an admitted position\r\nthat the “processed iron ore” had been exported during April, 1990 to\r\nMarch, 1991. It is to be noted that under the Exim Policy 1990-93,\r\n“Minerals and Iron Ore” are included in the list of ineligible items. As per\r\nExim Policy 1988-1991, only the export of “unprocessed iron ore” was\r\nineligible to get the benefit of additional licence. However, when the new\r\nExim Policy 1990-93 came into existence, as observed hereinabove, the\r\n“Minerals and Iron Ore” are in the list of ineligible items – the appellant\r\nhad actually exported “processed iron ore” during the period April, 1990\r\nto March, 1991, which was under the regime of new Exim Policy 1990-\r\n93 and as observed hereinabove under the new Exim Policy 1990-93,\r\nthe export of “Minerals and Iron Ore” are included in the list of ineligible\r\nitems, the appellant has been denied the benefit of additional licence.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>At this stage, it is required to be noted that under the Exim Policy,\r\nthe benefit of additional licence which as such was in the form of an\r\nincentive is available on actual export in the preceding year and the\r\nbenefit of such export for the purpose of additional licence to the FOB\r\nvalue shall be available in the next year. Under the Exim Policy, the\r\nbenefit of additional licence shall be available only on actual export in\r\nthe previous year and that too to eligible items only. Under the\r\ncircumstances, when the appellant exported the “processed iron ore”,\r\ni.e., during the period between April, 1990 to March, 1991, the “Minerals\r\nand Iron Ore” as per Appendix 12 were in the list of ineligible items, the\r\nappellant is rightly denied the benefit of additional licence. At this stage,\r\nit is required to be noted that the appellant had never challenged the\r\nnew Exim Policy 1990-93. Therefore, in the absence of any challenge to\r\nthe new Exim Policy 1990-93 under which on export of “Minerals and\r\nIron Ore”, there shall not be the benefit of additional licence, the new\r\nExim Policy 1990-93 shall be applicable.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. Now so far as the submission on behalf of the appellant on\r\ndoctrine of promissory estoppel is concerned, it is required to be noted\r\nthat the benefit of additional licence was in the form of an incentive. The\r\nDEFT/Union is free to change the Exim Policy and consider from time to\r\ntime on which items there shall be an incentive and on which items there\r\nshall not be any incentive. To grant the benefit of an incentive is a policy\r\ndecision which may be varied and/or even withdrawn. No exporter can\r\nclaim the incentive as a matter of right. Under the circumstances, the\r\ndoctrine of promissory estoppel shall not be applicable to such a policy\r\ndecision with respect to incentive, more particularly when it is well within\r\nthe right of DGFT/appropriate authority/Union to come out with a new\r\nExim Policy. Under the circumstances, the submission on behalf of the\r\nappellant that as the appellant placed the order with NKK Corporation,\r\nJapan on 7.2.1990 when the Exim Policy 1988-91 was in force and\r\ntherefore the appellant shall be entitled to the benefit of additional\r\nlicence by applying the doctrine of promissory estoppel cannot be\r\naccepted. The policy and the incentive scheme are very clear. Incentive\r\nin the form of an additional licence is on actual export in the previous\r\nyear. Therefore, the relevant date shall be the date on which the export\r\nis made. Under the circumstances, the decisions relied upon on behalf</span><span style=\"font-size: 12pt;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. Now so far as the submission on behalf of the appellant that in\r\ncase of some other similarly situated exporters, the benefit of additional\r\nlicence has been granted and therefore the appellant is entitled to the\r\nbenefit of additional licence on the export made between April, 1990 to\r\nMarch, 1991 is concerned, merely because some others are granted the\r\nbenefit wrongly, the appellant cannot be permitted to pray for the similar\r\nbenefits. There cannot be any negative discrimination which may\r\nperpetuate the illegality. The appellant cannot be allowed the benefit of\r\nadditional licence on the ground that some others might have been\r\ngranted such benefits de hors the scheme, which otherwise the\r\nappellant is not entitled to under the scheme. At this stage, it is required\r\nto be noted that in fact in the impugned judgment and order, the High\r\nCourt has directed to hold an enquiry how the others were granted the\r\nbenefit. However, unfortunately no further enquiry is held. It is very\r\nunfortunate that despite the High Court’s order, no further enquiry has\r\nbeen conducted. Be that as it may, once it is held that the appellant is\r\nnot entitled to the benefit of additional licence on export of “Minerals and\r\nIron Ore”, the matter ends there and the appellant cannot be allowed\r\nsuch benefit, which otherwise the appellant is held not entitled to.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. In view of the above and for the reasons stated above, the High\r\nCourt has rightly confirmed the order passed by the authority denying\r\nthe benefit of additional licence to the appellant. We are in complete\r\nagreement with the view taken by the High Court. The appeal deserves\r\nto be dismissed and is accordingly dismissed. No order as to costs.</b></p>', '3e9a293d21a3307d4ced82d1ea818b2f.jpeg', 'bab2d6bf90c250ba8f98ee34b1bf0eb3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-09', 1, '', '', '2022-11-06 19:32:56', '2022-11-09 12:01:40');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2377, 'wr7hVWJYIg1uarHhqoOuIQdQw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Subsequent purchaser has no right to claim lapse of acquisition proceedings under Section 24 (2) of the 2013 land acquisition Act. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Delhi Development Authority Vs Damini Wadhwa and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 7962 of 2022 decided on 4 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice M.M. Sundresh.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order passed by the High Court of Delhi at New Delhi in Writ Petition\r\n(C) No. 11735 of 2016 by which the High Court has allowed the said writ\r\npetition preferred by the private respondents herein – original writ\r\npetitioners and has declared that the acquisition with respect to the\r\nlands in question has lapsed by virtue of Section 24(2) of the Right to\r\nFair Compensation and Transparency in Land Acquisition, Rehabilitation\r\nand Resettlement Act, 2013 (hereinafter referred to as “Act, 2013”), the\r\nDelhi Development Authority (DDA) has preferred the present appeal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. That the respondent No. 1 herein – original writ petitioner filed a\r\nwrit petition before the High Court seeking declaration that the\r\nacquisition with respect to the suit lands, i.e., Khasra No. 589 (1-8), 1\r\nbigha and 8 biswas (out of 4 bighas) situated in the Revenue Estate of\r\nVillage Maidan Garhi, NCT of Delhi, is deemed to have lapsed by virtue\r\nof Section 24(2) of the Act, 2013.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.1 At the outset, it is required to be noted that the lands in question\r\nalongwith other agricultural lands were notified to be acquired under\r\nSection 4 of the Land Acquisition Act, 1894 (hereinafter referred to as\r\n“Act, 1894”) on 25.11.1980; declaration under Section 6 of the Act, 1894\r\nwas issued on 07.06.1985; and award came to be declared by the\r\nCollector on 17.06.1987. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. At the outset, it is required to be noted that from the counter filed\r\non behalf of the DDA, which is on record, it appears that the respondent\r\nNo. 1 – original writ petitioner filed the writ petition and claimed the right,\r\ntitle, or interest in the lands in question on the basis of the Agreement to\r\nSell dated 22.05.2016. As per the settled position of law, Agreement to\r\nSell by itself does not confer any right, title, or interest. Even in the\r\ncounter affidavit, the appellant doubted the genuineness of the\r\ntransaction of the Agreement to Sell dated 22.05.2016. A specific plea\r\nwas taken on behalf of the DDA on the locus of the original writ <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner. However, the High Court has not at all dealt with and/or\r\nconsidered the issue with respect to the locus of the original writ\r\npetitioner. Be that it may, even considering the fact that the Agreement\r\nto Sell was of the year 2016 and considering the fact that the notification\r\nunder Section 4 of the Act, 1894 was issued on 25.11.1980, therefore, it\r\nis apparent that the original writ petitioner allegedly derived the interest\r\nin the lands in question much after the acquisition proceedings were\r\ninitiated and therefore, the respondent No. 1 – original writ petitioner can\r\nbe said to be subsequent purchaser. In the recent decision of this Court\r\nin the case of Godfrey Phillips (I) Ltd. & Ors. (supra) after considering\r\nthe other decisions on the right of the subsequent purchaser to claim\r\nlapse of acquisition proceedings, i.e., Meera Sahni Vs. Lieutenant\r\nGovernor of Delhi & Ors., (2008) 9 SCC 173 and M. Venkatesh & Ors.\r\nVs. Commissioner, Bangalore Development Authority, (2015) 17\r\nSCC 1, it is specifically observed and held that subsequent purchaser\r\nhas no right to claim lapse of acquisition proceedings. Similar view has\r\nbeen expressed by the Larger Bench judgment of this Court in the case\r\nof Shiv Kumar & Anr. Vs. Union of India & Ors., (2019) 10 SCC 229.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7.1 Under the circumstances and even accepting the case on behalf of\r\nthe original writ petitioner that she might have acquired some interest on\r\nthe basis of the Agreement to Sell dated 22.05.2016, being a\r\nsubsequent purchaser and/or having acquired the interest in the lands in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">question subsequently, she was not having any right to claim lapse of\r\nacquisition proceedings under Section 24(2) of the Act, 2013. Under the\r\ncircumstances, the High Court erred in entertaining the writ petition\r\npreferred by the respondent No. 1 – original writ petitioner claiming lapse\r\nof acquisition proceedings under the Act, 2013. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7.2 Even otherwise on merits also, the High Court has erred in\r\ndeclaring / ordering lapse of acquisition under Section 24(2) of the Act,\r\n2013. The High Court has not at all appreciated the fact that the large\r\nparcels of the lands were acquired, which were under the same\r\nnotification/ different notifications. The acquisition proceedings under\r\nthe Act, 1894 were the subject matter of litigations and the acquisition\r\nproceedings came to be confirmed by this Court. The possession of\r\nsome parcels of the land could not be taken over because of the\r\npending litigations and even the compensation could not be deposited\r\ndue to pending litigations. Under the circumstances and as observed\r\nand held by this Court in the case of Indore Development Authority\r\n(supra), there cannot be any lapse of acquisition under Section 24(2) of\r\nthe Act, 2013 on the ground of possession could not be taken over by\r\nthe authority and/or the compensation could not be deposited / tendered\r\ndue to the pending litigations. Under these circumstances also, the High\r\nCourt has erred in allowing the writ petition and declaring that the\r\nacquisition with respect to the lands in question is deemed to have <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">lapsed under Section 24(2) of the Act, 2013. The impugned judgment\r\nand order passed by the High Court is unsustainable both on facts as\r\nwell as on law.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n8. In view of the above and for the reasons stated above, present\r\nappeal succeeds. </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '28652c422bdb11702c3b85f5f4b0cefa.jpeg', 'b2919d53c3e60ad33aee6e769589e1c8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-09', 1, '', '', '2022-11-06 19:40:33', '2022-11-09 06:22:42'),
(2383, 'RhWoDi0PBKUOEQTUvmNVYWzOr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Property Tax. Determination of capital value can be done only on the basis of the present usage and not on the basis of the future prospects of the land. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Municipal Corporation of Greater Mumbai and others Vs Property Owners Association and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8239 of 2022 decided on 7 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice Uday Umesh Lalit and Justice Ajay Rastogi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. The Mumbai Municipal Corporation Act, 18881 has been enacted by the State Government to consolidate and amend various Municipal Acts which were in force relating to the Municipal administration of the city of Mumbai. The Municipal Corporation of Greater Mumbai (“the Corporation” for short) has been established and discharging its duties under the MMC Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. The MMC Act authorizes the Corporation to impose property tax on lands and buildings. Importantly, property tax is one of the main sources of revenue for the Corporation, specifically after abolition of Octroi. The MMC Act earlier provided for levy of property tax on the basis of certain percentage of rateable value of the buildings or lands. The basis of determination of rateable value as provided in the MMC Act was the annual rent for which such buildings or lands might reasonably be expected to be let from year to year</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. The Corporation appointed Tata Institute of Social Sciences (for short “TISS”) and University of Mumbai to study the system of levy of property tax and to suggest alternative system for such levy. TISS submitted a detailed report recommending that capital value­based system of assessment be adopted in place of annual rental system. After detailed discussions with stake holders and based on the recommendations of TISS, the MMC Act was amended by the Maharashtra Act No. XI of 2009. The amendment incorporated an option and empowered the Corporation to levy property tax on the basis of capital value as an alternative to the earlier method of levying property tax on the basis of rateable value. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15. The High Court however accepted the challenge on three grounds, namely: ­</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i) Challenge to the Capital Value Rules of 2010 on retrospective operation,</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii) Challenge to the Capital Value Rules of 2010 and 2015, on the ground that the rule making power did not permit the Commissioner to determine capital value. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iii) Rule 20 of the Capital Value Rules of 2010 was held to be ultra vires the provisions of sub­Section (1A) and (1B) of Section 154 of the MMC Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16. On the first issue, the High Court observed that neither clause (e) of sub­Section (1A) nor sub­Section (1B) of Section 154 of the MMC Act conferred powers to frame rules with retrospective effect. The Capital Value Rules of 2010, which came into effect from 20.3.2012, were, therefore, held to be applicable prospectively and that said Rules could not be applied from 1st April, 2010.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">17. With regard to the second issue, it was observed that there was no provision in the MMC Act regarding consideration of development potential of vacant land for determining its capital value. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>25. We will first deal with the submission that any proposal for change or modification in the methodology adopted for levy of property tax ought to have been initiated through the Finance Commission alone. Article 243Y of the Constitution deals with constitution of Finance Commission whose principal duty is to review the financial position of the municipalities and to make recommendations to the Governor as to the relevant principles which should govern distribution of the net proceeds of the taxes and the measures needed to improve the financial position of the municipalities. In Campaign for People Participation in Development Planning vs. Lieutenant Governor of NCT of Delhi & Ors., a Division Bench of the High Court of Delhi had the occasion to consider the scope of Article 243Y of the Constitution</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>28. Coming to the effect and scope of the statutory provisions, it must be stated that Sections 123 to 128 of the MMC Act deal with accounts and annual budget estimates. With the fixed parameters and scope of taxation, as well as, the elements that can be covered by levy of such taxes, depending upon the annual budget estimates, the rates of municipal taxes, fares and charges can certainly be fixed in terms of Section 128 of the MMC Act. In such cases, the width of the tax regime is already decided and the rates of taxes would be dependent upon the annual estimates. What the present amendments seek to achieve is to change the methodology on the basis of which property tax can be levied. Instead of rateable value, the property tax can now be levied going by the capital value. Such exercise could not have been undertaken through the process of annual estimates and in terms of Sections 120, 123, 125 and 128 of the MMC Act. All that could be done under these provisions would be to vary or change the rates and not the very basis of taxation. The submission in that behalf, therefore, does not merit acceptance. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>29. We now turn to the scheme relating to property tax as is discernable from the provisions of the MMC Act. Section 139 deals with taxes including property taxes that can be imposed. Section 139A deals with the kinds of property taxes while Section 140 deals with the per centum of their rateable value or the capital value as the case may be. Section 140A enables the Corporation to adopt levy of property tax on the basis of Capital Value of buildings and lands and puts a cap in the proviso to sub­section (1). Section 154 then deals with how rateable value and capital value are to be determined. Sub­section (1) deals with rateable value while sub­section (1A), (1B) and (1C) deal with capital value. The first part of Section 154(IA) contemplates that the value indicated in the Stamp Duty Ready Reckoner for the time being in force, would be the “base value.” According to the second part, if such ready reckoner value is not available, the market value can be taken into account while arriving at a base value. According to the provision, while fixing the capital value, the Commissioner “shall have regard” to the factors enumerated in sub­clauses (a) to (e). Thus, the factors on the basis of which capital value can be arrived at are delineated in sub­clauses (a) to (e) of sub­section (1A) of Section 154. While sub­clause (a) to (d) are clear and well defined, sub­clause (e) refers to the factors as may be specified by rules under subsection (1B). Said sub­section (1B) in turn authorizes the Commissioner, to frame such rules, with the approval of the Standing Committee as respects details of categories of building or land and the weightage by multiplication to be assigned to various such factors and categories for the purpose of fixing the capital value</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>31. The crucial question is: whether such potential of the land or the likelihood of exploitation in future can also be taken into consideration while fixing the capital value in terms of subSection (1A), especially when none of the factors delineated in clauses (a), (b), (c) and (d) speaks of future prospects or such likelihood?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>32. At this stage, we may deal with two decisions of this Court having bearing on the controversy before us. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>33. Both the decisions were rendered in the regime when the property tax could be levied on rateable value. In the first decision, it was found that fixing of the rate at a percentage of the capital value was not a modality permitted by the Act and, therefore, Rules 350­A read with Rule 243, which permitted such exercise, were struck down. Therefore, to the extent the rules went beyond the statutory import and extent, the transgression was not accepted by this Court. In the second decision, it was held that so long as the building was not completed and ready for occupation, the land in question for the purposes of rating must be equated with and treated as “vacant land”. In the second decision, the construction was actually going on but the building was not ready. The conclusion from the second decision is quite clear that unless and until the building was ready to be occupied, the land must be treated as vacant land. Notably, the second decision was premised on the methodology where the rateable value was the determining criteria. Therefore, so long as the building could not be let out in open market, the land would continue to be treated as “vacant land”</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>36. Viewed thus, the conclusion arrived at by the High Court on the second and third grounds, as stated in paragraph 15 (supra) are quite correct. We, therefore, hold that the empowerment in terms of clauses (a) to (e) read with sub­Section (1B) or the conferral of rule­making power would not permit the Corporation to determine the capital value beyond the scope of said clauses (a) to (e). Thus, for the purpose of determining capital value, only the present physical attributes and status of the land and building can be considered and not the future prospects of the land.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>38. To the extent Rule 20 of the Capital Value Rules of 2010 and the Capital Value Rules of 2015 empower the Commissioner to consider the capability of the open land of utilizing more than 1 floor space index (FSI) or any transfer of development right (TDR), would go well beyond the permissible scope delineated by the provisions of Section 154 of the MMC Act. The High Court, in our view, was, therefore, right in concluding that Rule 20 of the Capital Value Rules of 2010 and the Capital Value Rules of 2015 would be ultra vires the provisions of sub­Sections (1A) and (1B) of Section 154 of the MMC Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>40. The question then arises as to what would be the scope and extent of the present property tax regime. It is quite clear that with the amendment to Section 154 and other provisions, </b></font><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">the property tax can be levied on the basis of capital value of the land or building. To that extent, there would be departure from the regime which was in existence when Patel Gordhandas and Polychem Ltd. were decided by this Court. Now, the statute certainly empowers and contemplates imposition of property tax on the capital value. However, the capital value must be one which answers the postulates in sub­clauses (a) to (e) of sub­Section (1A) read with sub­Section (1B) of Section 154. At the cost of repetition, we may say that since the statutory provisions do not contemplate any likelihood of exploitation of capacity in future, the capital value of the land and building must be based on situation “in presenti”. It must be clarified here that in projects which are in progress, the value addition to the property would be ongoing feature. However, considering clauses (a) to (d), it would mean that the governing principle must be the actual use and not the intended use in future.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>41. In the circumstances, the challenge raised by the Corporation must fail and we dismiss the appeal preferred by the Corporation.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>42. We now turn to the challenges raised by the original writ petitioners. Those challenges on various grounds as detailed hereinabove including the grounds of legislative competence; validity of certain provisions and basis of alleged violation of Article 14 of the Constitution, were considered by the High Court in extenso. We do not find any reason or room to take a different view. We, therefore, affirm the view and dismiss the challenge. Consequently, the appeals preferred by the original writ petitioners are dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>43. These appeals are disposed of in aforesaid terms without any order as to costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '44e714e1d1ede026fef20d1ba937a0dd.jpeg', 'b674349cd38819b10111b790475e7ed5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-10', 1, '', '', '2022-11-08 11:06:41', '2022-11-10 06:59:13'),
(2436, 'clU7K2ymkWsjGEFL1m4JIGy6z', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Violation of the Income Tax Act in monetary transaction cannot be a defence in proceedings under Section 138 of the Negotiable Instruments Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gajan Kallappa Kadolkar Vs Appasaheb Siddamallappa Kaveri.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Revision Petition 2011 of 2013 decided on 18 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice G. Basavaraja.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This criminal revision petition is filed under Section\r\n397(1) r/w Section 401 of Cr.P.C. seeking to set\r\naside the judgment dated 31.10.2012 passed by the\r\nII Addl. District and Sessions Judge, Belgaum, in\r\nCrl.A.No.13/2012 confirming the judgment of\r\nconviction and order of sentence passed by the JMFC\r\nII Court, Belgaum, in C.C.No.1592/2009 dated\r\n09.09.2011 wherein the revision petitioner has been\r\nconvicted for the offence punishable under Section\r\n138 of Negotiable Instruments Act, 1881 (for short\r\n‘NI Act’) and sentenced to pay a fine of Rs.1,28,000/-\r\nin default to undergo a simple imprisonment for 6\r\nmonths</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The relevant facts of the case leading to this revision\r\npetition are as under:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.1 The Complainant is the permanent resident of\r\nAnjaneya Nagar, Belgaum and the accused is\r\nhis neighbour and close friend. The accused\r\nwas running a business of Glass and plywood\r\nunder the name and style \"M/s. Gajanan Glass\r\nand Plywoods.\" In the month of January 2007,\r\nthe accused approached the complainant\r\nseeking financial assistance of Rs.15 lakhs to\r\nmeet his personal commitments and for\r\nbusiness purpose. As the complainant was on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">good terms with the accused, who was also a\r\nneighbour, he agreed to advance a hand loan of\r\nRs.15 lakhs to the accused. Between January\r\n2007 and June 2007, he advanced a hand loan\r\nof Rs.15 lakhs to the accused and that accused\r\nagreed to repay the hand loan within six\r\nmonths from the date of last advancement.\r\nHowever, after repeated requests, the accused\r\nissued 15 cheques for Rs.1 lakh each towards\r\nrepayment of the hand loan availed of by him.\r\nThe cheque was issued for Rs.1 lakh bearing\r\nNo.580497 dated 09.10.2009 drawn on State\r\nBank of Mysore, M.M. Extension, Belgaum,\r\ntowards discharge of said hand loan. The\r\ncomplainant has presented the said cheque for\r\nencashment through his banker i.e., HDFC\r\nBank, Belgaum, on 10.10.2009 and the said\r\ncheque was dishonored with an endorsement of\r\n\"exceeds arrangements\" on 10.10.2009.\r\nThereafter, the complainant issued a legal </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">notice to the accused on 23.10.2009 calling\r\nupon him to make payment of the entire\r\ncheque amount within 15 days from the date of\r\nreceipt of notice; the said notice was duly\r\nserved to the accused on 26.10.2009, but he\r\nfailed to make good of the cheque amount.\r\nHence, the complainant has filed a complaint\r\nunder Section 200 of the Cr.P.C. against the\r\naccused for the commission of an offence\r\npunishable under Section 138 of the NI Act.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">13. A perusal of the evidence placed by the complainant\r\nmakes it clear that accused issued the cheques in\r\nfavour of complainant for Rs.1 lakh each dated\r\n09.10.2009, same was presented by the complainant\r\nfor encashment and it was returned with the shara\r\nthat \"exceeds arrangement\" as per Ex.P-2 on\r\n10.10.2009. The complainant has issued a legal\r\nnotice as per Ex.P-3 on 23.10.2009 by registered\r\npost receipt as per Ex.P-4 calling upon the accused to\r\nmake payment within 15 days from the date of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">receipt of said notice. The said notice has been\r\nissued by the Registered Post and was duly served on\r\n26.10.2009; however, the accused has not paid the\r\ncheque amount. As a result, on 08.12.2009, the\r\ncomplainant filed a complaint under Section 200 of\r\nCr.P.C. for the commission of an offence punishable\r\nunder Section 138 of the NI Act.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">14. The appellate court has also observed that the\r\ncomplainant has financial capacity to advance the\r\nhand loan to the tune of Rs.15 lakhs to the accused\r\nand this version of the complainant is supported by\r\nEx.P-6. Considering the facts and circumstances of\r\nthe case and relying on the decision of the Hon’ble\r\nApex Court in the case of RANGAPPA vs SRI\r\nMOHAN reported in AIR 2010 SC 1898, the courts\r\nbelow have come to the conclusion that the\r\ncomplainant proved the guilt of the accused.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">16. I have gone through the judgment relied by the\r\nlearned counsel for the revision petitioner in the case </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of GURUMALLESH v. G. RAMESH reported in 2019\r\nCr.R. 481 (KANT.). The pleadings of the\r\ncomplainant and the defence taken by the accused\r\nare not consistent with the facts of the case on hand.\r\nThe accused has taken the defence of lost cheque\r\nand he was able to show that there was no legally\r\nenforceable debt and simultaneously, as complainant\r\nhas failed to prove the existence of legally\r\nenforceable debt, the alleged act would not attract\r\nSection 138 of the NI Act, as it won\'t constitute an\r\noffence. Hence, the lower appellate court reversed\r\nthe judgment of conviction</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. Another contention of the accused is that the\r\ncomplainant was a Commercial Tax Officer at the\r\ntime of alleged transaction and that the accused was\r\nthe proprietor of M/s.Gajanan Glass and Plywoods.\r\nThe complainant being the Commercial Tax Officer,\r\nhas insisted the accused to issue 15 signed blank\r\ncheques of Rs.1 lakh each for the purpose of paying\r\ntax in respect of the business of M/s.Gajanan Glass\r\nand Plywoods. Accordingly, the accused has issued\r\n15 signed blank cheques and filed a false complaint\r\nagainst the accused. This is the most absurd defence\r\ntaken by the accused without the application of mind\r\nand accused being an entrepreneur has better\r\nknowledge as to the procedure for payment of\r\nincome tax.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. If really the accused has issued 15 signed blank\r\ncheques to the complainant, the accused ought to\r\nhave explained as to why the complainant has\r\ninsisted him to issue 15 signed blank cheques. The\r\naccused has not explained on what date and time the\r\ncomplainant has insisted and on what date the\r\naccused has issued those cheques to the\r\ncomplainant. The accused chose not to reply to the\r\nlegal notice demanding payment of the loan by the\r\ncomplainant. Even the accused has not taken any\r\nlegal steps against the complainant for misuse of the\r\nalleged signed blank cheques. It is the contention of\r\nthe accused that the complainant being a\r\nCommercial Tax Officer, cannot insist the accused or\r\nanybody to issue signed blank cheques in any legal\r\ntransactions. The accused need not issue signed\r\nblank cheques to the complainant in any\r\ncircumstances. However, it is the defence of the\r\naccused that he has issued 15 signed blank cheques <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to the complainant; such an improbable defence set\r\nup by the accused cannot be accepted.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">24. The Courts below have properly appreciated the\r\nevidence on record in a proper perspective with the\r\nprovisions of law regarding presumption in detail.\r\nBoth the Courts below have observed the decision of\r\nthe Hon’ble Apex Court and passed the impugned\r\njudgment in accordance with law. On re-evaluation\r\nof the entire evidence placed on record, I do not find\r\nany illegality in the impugned judgments. In my\r\nopinion, the judgments and orders impugned in these\r\nrevision petitions are not suffering from any legal\r\ninfirmity occasioning grave injustice to the petitioner,\r\ncalling for interference.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24.1 Revision petition is without merit and is liable to\r\nbe dismissed. Resultantly, the respondent is\r\nheld guilty of the commission of offence under\r\nSection 138 of the NI Act. Accordingly, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">impugned judgments do not call for any\r\ninterference by this Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>1) The criminal revision petition is\r\ndismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1017cc3466156bedb989147c05c73e9a.JPG', 'ea084a55cbfecebfa6cb50cfacec86e7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-25', 1, '', '', '2022-11-24 14:52:12', '2022-11-25 03:22:26'),
(2379, '5YkwePBIxS4JQhxMxwiPrh8Cb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Digitalize the criminal investigation by videographing dying declaration and recording statements electronically with digital signatures. Karnataka High Court issues guidelines.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Punit Bhimsingh Rajput Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 100191 of 2019 decided on 4 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj and Justice G Basavaraja.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. These are the appeals filed under Section 374(2) of\r\nCode of Criminal Procedure, 1973 (for short,\r\n‘Cr.P.C.’), challenging the judgement of conviction\r\nand order of sentence passed by the I Additional\r\nDistrict and Sessions Judge, Bagalkot sitting at\r\nJamkhandi (for short, ‘trial Court’) in Sessions Case\r\nNo.91/2017 dated 20.03.2019.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. A complaint came to be filed by Vindarsingh on\r\n06.09.2016 at 22.15 hours, alleging that he had\r\nbeen informed by his sister that the accused (her\r\nhusband and mother-in-law) had ill-treated her and\r\nsought to commit her murder. In furtherance of the\r\nsame, ASI, Mudhol Police had registered a case for\r\nthe offences under Sections 307, 498-A, 504 read\r\nwith 34 of IPC. In the meantime, the sister expired, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">hence, upon investigation, Circle Inspector of Mudhol\r\nPolice Station submitted a charge sheet against the\r\naccused for the offences punishable under Sections\r\n498-A, 504, 323, 302 read with 34 of IPC.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. It is in the background of the above submissions\r\nwhich have been made, this Court would have to\r\nascertain upon re-appreciation of the evidence on\r\nrecord, whether the judgement of conviction and\r\norder of sentence passed by the trial Court is proper\r\nor not?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">14. There is no dispute as regards the deceased being\r\nmarried to accused No.1 or accused No.2 being the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">mother-in-law of deceased. There is also no dispute\r\nas regards the incident having occurred in the\r\nmatrimonial home of accused No.1 and deceased.\r\nThe only disputed issues are relating to whether\r\nthere is an offence under Section 498-A of IPC\r\ncommitted by accused Nos.1 and 2 as against the\r\ndeceased and whether offence under Section 302 of\r\nIPC has been committed or not. Needless to say that\r\nthese aspects would have to be established beyond\r\nreasonable doubt by the prosecution.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. In our considered opinion the Investigating Officer\r\nhas to investigate any offence without taking any\r\nsides in an objective manner so as to place the truth\r\non record. The Investigating Officer is neither\r\nprosecuting the accused nor he is aiding the victim.\r\nThe only job of the Investigating Officer is to\r\nascertain the facts and on that basis place a report\r\neither charging the accused of the offences or\r\nabsolving them of the offences.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. In the present matter as observed above, the crucial\r\naspect being as regards the injuries having been\r\ncaused due to the stove burst or otherwise, the\r\nInvestigating Officer has not even visited the kitchen,\r\nno sketch of the kitchen has been prepared nor any\r\nphotographs of the kitchen have been placed on\r\nrecord (assuming that the stove was kept in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">kitchen). If the stove was not kept in the kitchen and\r\nwas in the hall, there is no mention of the same in\r\neither the sketch or in any of the evidence. Suffice it\r\nto say that the entire investigation of the\r\nInvestigating Officer is suspiciously silent on the\r\nexistence or otherwise of the stove.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">27. Having been put on notice that the deceased was\r\nhospitalized on account of burn injuries due to stove\r\nburst/explosion, it was but required for the\r\nInvestigating Officer to have ascertained if at all\r\nthere was a stove in the house, what kind of stove it\r\nwas, whether it had exploded or burst or not and in\r\nthis regard the said stove whether burst or not would\r\nhave to have been seized and marked as a material\r\nobject and exhibited before the trial Court. This not\r\nhaving been done, we are of the considered opinion\r\nthat the investigation which has been carried out is\r\ncompletely lopsided, inadequate and as such could </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not have been considered by the trial Court and as\r\nsuch cannot be considered by us.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>36. In the present case, admittedly, there is no demand\r\nmade for any money or ornaments which has been\r\ndeposed by the family members PW.2 and PW.5 or\r\nfor that matter any other witness. There being no\r\nsuch demand for money or ornaments, question of\r\nSection 304-B of IPC being attracted would not arise.\r\nMore so, when the accused have not been charged\r\nwith offence under Section 304-B of IPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>46. In the above background, we are of the considered\r\nopinion that since the investigation has not been\r\ncarried out properly, the existence or otherwise of\r\nthe stove has not been established, it not being\r\nestablished that the burn injuries caused to the\r\ndeceased is only on account of pouring kerosene and\r\nnot due to stove burst and dying declaration being\r\nsuspect and not corroborated by other evidence on\r\nrecord, the finding of the trial Court is not proper and\r\ncorrect and therefore, we are of the considered\r\nopinion that the prosecution has not established\r\nbeyond reasonable doubt the guilt of accused No.1 in\r\nthe matter.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>49. The cruelty under Section 498-A of IPC ought to be\r\nbut such that it may lead to the death of the wife.\r\nThe conduct should be of such nature as to drive the\r\nwoman to commit suicide or to cause grave injury or <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">danger to life, limb or health (whether mental or\r\nphysical) of the woman. Here in the present case,\r\nthere is no allegation that due to the alleged cruelty,\r\nthe deceased tried to commit suicide or that the\r\nconduct of the accused no.2 caused injury or danger\r\nto the life, limb or health of the deceased.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>50. The allegation is that accused No.1 poured kerosene\r\non the deceased and set her ablaze. This being\r\ndisbelieved by us earlier, hence we are of the\r\nconsidered opinion that accused No.2 also could not\r\nhave been convicted for the offence under Section\r\n498-A of IPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i. The appeals are allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '074c309b27a154eaa2172339b43c3c62.jpeg', '455dcf07eaae987bfc6dcccc40b25173.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-16', 1, '', '', '2022-11-07 11:55:20', '2022-11-16 06:45:51');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2380, 'ofcIm3beRTfBW25AsdHqszJBB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'POCSO Act. Increasing cases of minor girls above the age of 16 years having love/sexual relationship resulting in criminal prosecutions. Karnataka High Court asks Law Commission of India to rethink on the age criteria. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>State of Karnataka Vs Basavaraj Yellappa Madar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 100515 of 2021 decided on 4 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj and Justice G Basavaraja.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts of the case are:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.1. It is alleged that the complainant – the mother\r\nof the victim was residing at Indira Nagar,\r\nKirvatti, Yallapur Taluk with her husband and\r\ntwo daughters. The accused was their\r\nneighbour. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.2. The victim being aged about 17 years studying\r\nin II PUC in Government College, Kirvatti, on\r\n26.12.2015 at about 9.00 am the victim left for\r\ncollege but did not return, the complainant and\r\nher family members searched for her\r\neverywhere, but did not find her. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.8. The Special Court after hearing the arguments\r\nwas of the opinion that the evidence led by the\r\nprosecution was insufficient to convict the\r\naccused of the offences charged and the\r\nprosecution had failed to bring home its case\r\nsuccessfully beyond all reasonable doubt and as\r\nsuch, acquitted the accused of the aforesaid\r\noffences.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.9. It is being aggrieved by the same that the State\r\nis before this Court seeking to set aside the\r\norder of acquittal and for conviction of the\r\naccused for the aforesaid offences. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. It is in the background of the above submissions that\r\nwe are called upon to re-appreciate the evidence on\r\nrecord to ascertain if the judgment passed by the\r\ntrial Court is proper or not.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. There are two sets of offences which have been\r\nalleged against the accused.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6.1. First being the kidnap under Section 366 of the\r\nIPC.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6.2. Second being the offence of rape and\r\naggravated penetrated sexual assault. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">14. In terms of the above provisions, the prosecution is\r\nrequired to prove that the accused has committed\r\nrape of a woman incapable of giving consent to\r\nconstitute an offence under Section 376 (2)(j) of the\r\nIPC. <br></span><o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: \"Times New Roman\", serif;\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. In the present case, it was therefore required for the\r\nprosecution to establish aggravated penetrative\r\nsexual assault. <span style=\"font-family: \"Times New Roman\", serif;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: \"Times New Roman\", serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">27. The evidence led by the prosecution does not in any\r\nmanner establish any aggravated sexual assault\r\ncommitted by the accused on the victim and/or any\r\noffence under Section 376(2)(j) of the IPC. All the\r\nmaterial witnesses have turned hostile. There is\r\nnothing on record to legally establish the guilt of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">accused. The only evidence on record is the DNA\r\ntest result as regards the fetus. But in the absence\r\nof any corroborative evidence to the said scientific\r\nevidence, we are unable to come to a conclusion that\r\nthe accused is guilty of the offences alleged against\r\nhim and/or that the prosecution has proved the same\r\nbeyond reasonable doubt.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>28. In the above background, we do not find any\r\ninfirmity in the judgment of acquittal passed by the\r\ntrial Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. Appeal is dismissed.</b></p>', '2c67c9ee8ba8fe7788e78992d87f5255.jpeg', '3cf3a8d2126421f482d728d069126140.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-09', 1, '', '', '2022-11-07 12:09:31', '2022-11-09 10:26:46'),
(2381, 'mFsrQMxiPc0oNLrqjsAnOSGIm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Essential Commodities Act, 1955. Criminal proceedings cannot be initiated only against manager of company without arraying the company as accused. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mahesh Naik Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 103054 of 2022 decided on 28 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. A private complaint was filed under Section 200 of\r\nCr.P.C. by the respondent for the offences punishable under\r\nSections 3 and 7 of the Essential Commodities Act, 1955\r\nalleging that the fertilizer manufactured by Zuari Agro\r\nChemicals Limited was of sub-standard quality. The learned\r\nMagistrate after perusal of the complaint, took cognizance of\r\nthe aforesaid offences and issued summons. Taking exception\r\nto the same, the petitioner-accused No.2 is before this Court</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Section 2(a) of the Fertilizer (Control) Order, 1985\r\nspecifies that \"Act\" means the Essential Commodities Act,\r\n1955. Section 10 of the Essential Commodities Act, 1955\r\nspecifies that if the person contravening an order made under\r\nSection 3 is a company, every person who, at the time the\r\ncontravention was committed, was in charge of, and was\r\nresponsible to, the company for the conduct of the business of\r\nthe company as well as the company, shall be deemed to be\r\nguilty of the contravention and shall be liable to be proceeded\r\nagainst and punished accordingly. Hence, to hold the officer of\r\nthe Company vicariously guilty, the Company should be arrayed\r\nas an accused.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. In the instant case, the Company having not been\r\narrayed as an accused, the petitioner cannot be held vicariously\r\nguilty of the aforesaid offences as specified under Section 10 of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Essential Commodities Act, 1955.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> Criminal Petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '51b8cd45692affa1ce99075e3e8ddd58.jpeg', 'e3a5de089483b103274d82dc0b3138b1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-10', 1, '', '', '2022-11-07 13:24:09', '2022-11-10 03:21:33'),
(2382, 'dF5GLg3oZyQiUpIYrWoJCzdK8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Insecticides Act, 1968. Criminal proceedings cannot be initiated only against director of company without arraying the company as accused. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Prashant L. Hundekar Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 103214 of 2022 decided on 31 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. A private complaint is filed by the respondent under\r\nSection 200 of Cr.P.C alleging that bio-products\r\nmanufactured by the company were sent to the analyst\r\nfor test, and thereafter the analyst submitted the report\r\nthat bio products manufactured by the company were\r\nmiss-branded. The learned Magistrate after perusing the\r\ncomplaint registered the case against the petitioner accused for the offence punishable under section 29 of\r\nInsecticides Act, 1968 (for short the Act). Taking\r\nexception to the same, this petition is filed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Section 24 (1) of the Act specified that the\r\nInsecticide Analyst to whom a sample of any insecticide\r\nhas been submitted for test or analysis under sub-section\r\n(6) of section 22, shall, within a period of thirty days,\r\ndeliver to the Insecticide Inspector submitting it a signed\r\nreport in duplicate in the prescribed form. In the present\r\ncase, samples were sent on 30/8/2019 and report was\r\nreceived from the analyst on 27/6/2020. Hence, report\r\nsubmitted after 30 days from the date on which the\r\nsamples were submitted for testis contrary to Section 24\r\nof the Act. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Section 33 of the Act specifies that whenever an\r\noffence under this Act has been committed by the\r\nCompany, every person who at the time of the offence\r\nwas committed was in-charge or responsible to the\r\ncompany for conduct of the business of the company as\r\nwell as the company shall be deemed to be guilty of the\r\noffence. In the present case, offence aforesaid is\r\ncommitted by the company and the complaint is filed\r\nwithout arraying the company as accused to the complaint\r\nand the same is not maintainable, since the petitioner,\r\nwho is director of the company cannot be held variously\r\nguilty of the offence. Resultantly, the complaint filed by\r\nthe respondent without arraying the company as accused\r\nis not maintainable.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. In view of the preceding analysis, the impugned\r\nproceeding pending against the petitioner is required to\r\nbe quashed.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i) The criminal petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7b339cf8e15cb36dd476736aa93a7447.jpeg', 'c7b4079f4b0371359b696a454c98ebfe.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-09', 1, '', '', '2022-11-07 13:38:28', '2022-11-09 03:22:16'),
(2384, 'fOyhMLYo1jMcWNFpaLJFsLXZF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Pension is not a bounty or a gratis that is granted to pensioner or his spouse. Karnataka High Court orders redeposit of pension amount withheld towards excess payment with liberty to recover excess payment in instalments. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vimala Ramanath Pawar Vs Senior Manager Centralised Pension Processing Centre and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 20321 of 2021 decided on 27 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasaana.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner, a widow, aged 73 years knocks the doors\r\nof this Court, alleging lack of sympathy or even empathy, on\r\nthe part of the respondent/Canara Bank, a State under Article\r\n12 of the Constitution of India (‘the Bank’ for short) in\r\nrecovering Rs.6,40,329/- from out of the family pension\r\naccount of the petitioner and seeks a direction by issuance of a\r\nwrit in the nature of mandamus, directing re-credit of the said\r\namount.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Shorn of unnecessary details, the facts in brief, are as\r\nfollows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n The petitioner is an account holder in the\r\nrespondent/Bank and is a recipient of family pension from its\r\nhands. The husband of the petitioner one R.V.Pawar was\r\nworking as a Technical Assistant Executive Engineer at Chief\r\nEngineer, C & B (S) Office, Government of Karnataka and\r\nretired from service on 31.05.2002. The said Government\r\nservant was having a regular pension account at\r\nVishveshwarnagar Branch, Hubli of the erstwhile Syndicate\r\nBank, which is now merged with the Bank. Till the end of\r\nFebruary, 2019 R.V.Pawar was recipient of pension of\r\nRs.38,604/- from the Branch. On centralization of pension\r\nfrom March 2019, the Centralized Pension Processing Centre\r\n(‘CPPC’ for short) started making payment of pension to the\r\npension holders. The account of the husband of the petitioner,\r\nwhich was at Hubli was later transferred to Kasturinagar <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Branch, Bangalore. Thereafter, the husband of the petitioner\r\nwas being paid through Kasturinagar Branch from the CPPC</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">8. The afore-narrated facts are not in dispute. The\r\nhusband of the petitioner who was an employee of Government\r\nof Karnataka retires on 31-05-2002 and his pension account\r\nwas being handled by the Syndicate Bank and later on, its\r\nmerger with the respondent/Bank. The husband of the\r\npetitioner was getting Rs.38,604/- as pension upto February,\r\n2019 and on account of reckless or callous functioning of the\r\nOfficers of the Bank in CPPC, the pension of the husband of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner goes up from 38,604/- to Rs.96,988/-. This continues\r\nfrom March 2019 to 06-02-2021 close to two years. The\r\nhusband of the petitioner dies on 06.02.2021.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The learned counsel for the respondent/Bank would\r\ncontend that the Master Circular for disbursement of\r\nGovernment Pension by agency banks permits such recovery in\r\nterms of Clause 13. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">He would place reliance upon sub-clause (d) of Clause 13, that\r\nif overpayment cannot be recovered from the pensioner due to\r\nhis death or discontinuance of pension, then action has to be\r\ntaken as per the letter of undertaking given by the pensioner\r\nunder the Scheme. Though recovery of excess amount is\r\npermitted in terms of the Master Circular, which depicts\r\nuniform recovery of wrong payments made to pensioners\r\ndrawing pension, that would not mean that the amount that is\r\npaid in excess is to be recovered in one stroke that too, from\r\nthe petitioner who is a widow depending on family pension and\r\nis suffering from ailments at the age of 73 years. The Officers\r\nof the Bank who have indulged in such callous or reckless\r\ntransfer of excess pension to the account of the husband of the\r\npetitioner should be made/held accountable for such act. It is\r\nfor the Bank to take such appropriate action against those\r\nerring officers / officials and fix accountability, in accordance\r\nwith law.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Pension, is trite, not a bounty or a gratis that is\r\ngranted to the pensioner or the spouse of the pensioner as a\r\nfamily pension, for the Bank to deal with it at its whim and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">fancy. It is to be noticed that the husband of the petitioner is\r\nnot an employee of the Bank. He has only his account in the\r\nBank. Pension is deposited rightly in the CPPC. The State\r\nGovernment has not paid any excess pension to the husband of\r\nthe petitioner. It is the irresponsibility of the Officers of the\r\nBank, which has led to such over payment. Therefore, to\r\ngenerate a balance in the facts and circumstances becomes\r\nnecessary. The amount that is deposited into the account of the\r\nhusband of the petitioner is neither the money belonging to the\r\ncallous officers nor the money that belonged to the husband of\r\nthe petitioner. It is “public money”. Therefore, I deem it\r\nappropriate to permit recovery of the amount in equal monthly\r\ninstallments of Rs.4,000/- (Rupees four thousand only) from\r\nthe hands of the petitioner.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> (i) Writ Petition is allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'bca82e72fa4f215f8f541441794a43a2.jpeg', '44f49e55f5d9b5e2178fed0cae07114c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-16', 1, '', '', '2022-11-09 11:18:34', '2022-11-16 08:47:02'),
(2385, 'pFfaFT7dNiERx6aSohYtjEOT1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Tender. Judicial review is restricted only to decision making process and not the decision itself unless the process is vitiated by bias, malafides, arbitrariness and irrationality. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Macawber Beekay Pvt Ltd Vs M/S Bharat Heavy Electricals Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 20333 of 2022 decided on 2 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner-M/s.Macawber Beekay Private Limited\r\n(‘Company’ for short) is before this Court calling in question\r\nthe notice inviting tender (‘NIT’ for short) and consequent\r\nissuance of letter of intent to the 3rd respondent and has\r\nsought a direction to the 2nd respondent by issuance of a writ\r\nin the nature of mandamus to award the contract to the\r\npetitioner.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 2. Shorn of unnecessary details, the facts in brief that\r\nare germane for consideration of the lis, are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The petitioner/Company claims to be specialized in\r\nproviding turnkey solutions with regard to Ash Handling Plant\r\nto various industries such as power, cement, aluminum, steel\r\nincluding thermal power station, which face severe problems\r\nin handling bulk materials within the plant. The Company also\r\nclaims to provide solutions to reduce environmental pollution\r\nwith conservation of energy. The 5th respondent- <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">M/s.Telangana State Power Generation Company Limited\r\nsought to setup a 4000 MW capacity thermal power station at\r\nYadadri, Nalgunda District, Telangana and sought to award\r\ncontract for design, engineering, supply, erection and\r\ncommissioning to the 1st respondent/Bharat Heavy Electricals\r\nLimited (‘BHEL’ for short) a portion of which was ash handling\r\nplant and the other coal handling plant. This was to be\r\nexecuted by the 2nd respondent-M/s Bharat Heavy Electricals\r\nLimited Industrial Systems Group. It is claimed that the entire\r\nplant was to be completed and commissioned by October,\r\n2021. In furtherance of the said decision to set up a thermal\r\npower station, a NIT was issued on 22-08-2018. The petitioner\r\nwas one amongst other three, who participated in the tender.\r\nThe tender however, was cancelled.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. I have given my anxious consideration to the\r\nsubmissions made by the respective learned senior counsel\r\nand perused the material on record. In furtherance whereof,\r\nthe issue that falls for consideration is, <i>whether the impugned\r\ntender process is shrouded with such illegality that it would\r\nbecome violative of Article 14 of the Constitution of India and\r\nwould thus be amenable to scrutiny under Article 226 of the\r\nConstitution of India. </i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. As observed hereinabove, the entire process of\r\nsubmission of the bid is in consonance with the tender\r\nnotification. What remains is, decision making process. The\r\ndecision making process in the opinion of the Court is in tune\r\nwith clauses of the tender and necessities of tender. Financial\r\nviability of the tender is also one of the factors, if not the sole\r\none for the Tender Inviting Authority to consider. Admittedly,\r\nthe bid of the petitioner is Rs.58/- crores higher than the bid\r\nthat is offered by respondent Nos.3 and 4. The difference of\r\nRs.58/- crores is a huge margin for respondent Nos.1 and 2 to\r\ngive up respondent Nos.3 and 4, who admittedly qualify for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">award of tender and issue letter of intent in favour of the\r\npetitioner.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">22. The award of contract is not even contrary to the\r\noffice memorandum. The clarification issued in the office\r\nmemorandum makes it unmistakably clear that, even raw\r\nmaterials can be procured from the bordering countries. What\r\nis barred is finished products from any vendor cannot be\r\nprocured unless those vendors are registered with the\r\ncompetent authority. It is not in dispute that respondent\r\nNos.3 and 4 are not procuring any raw material from a country\r\nthat borders the nation. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Respondent Nos.3 and 4 clearly undertook that in the event\r\nthey would become successful, they declare that no raw\r\nmaterial or supplies shall be sourced from China and all\r\nsupplies shall be sourced from India or abroad except China.\r\nTherefore, the scrutiny of this Court in such cases is being\r\nrestricted to decision making process. Finding no error or\r\nillegality in the decision making process, this Court would hold\r\nits hands to interfere in the tender or the decision making\r\nprocess, in the light of the Court finding no arbitrariness. The\r\nmere fact that the petitioner was the successful bidder in\r\nearlier times would not mean that any other tenderer cannot </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be chosen at the available discretion of the Tender Scrutiny\r\nCommittee. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Therefore, there is no scope of interference in the decision\r\nmaking process of respondent Nos.1 and 2.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. It is now germane in the journey of the judgment\r\nto consider the sheet anchor of the contention of the learned\r\nsenior counsel appearing for the petitioner i.e., the judgment\r\nrendered by the Division Bench of the High Court of Delhi in\r\nDSPC ENGINEERING PRIVATE LIMITED (supra). The facts\r\nobtaining in the case before the High Court of Delhi are\r\ndistinguishable qua the facts obtaining in the case at hand\r\nwithout much ado. Though the High Court of Delhi considers\r\nthe very office memorandum upon which reliance is placed,\r\nthe reasons for setting aside the tender therein were entirely\r\ndifferent. The NIT therein was not in pari materia with what is\r\nissued in the case at hand. Consortium bidding therein was\r\nprohibited, but a tenderer could take assistance from a\r\nsupporting company. The supporting company therein was a\r\n100% subsidiary of the Indian company registered in China\r\nand housed in China. Therefore, it was declared to be an\r\nagency of the Indian company which had submitted the bid\r\nand such action fell foul of the office memorandum (supra).</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. Therefore, the said judgment would not become\r\napplicable to the facts of the case. In the case at hand, the\r\ntender pre-qualification conditions itself permitted entering\r\ninto a consortium agreement. Above all, the very office\r\nmemorandum which fell for consideration before the High\r\nCourt of Delhi had undergone a clarification. The clarification\r\nfurther enures to the benefit of respondent No.3 herein, as if a\r\nparticular kind of assistance is sought from the company\r\nbordering the country, it need not be registered with the\r\ncompetent authority. The judgment in the case of DSPC\r\nENGINEERING PRIVATE LIMITED before the Delhi High\r\nCourt was reserved on 05-01-2021 and delivered on 23-03-\r\n2021. In the interregnum the Union of India had clarified the\r\nsaid office memorandum on 08-02-2021. Therefore, the High\r\nCourt of Delhi was considering an office memorandum which\r\nhad not yet been clarified by the Union of India. Baring this\r\nclarification, no other submission would entail any interference\r\nat the hands of this Court as this Court would not sit in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">arm chair of experts or the Tender Scrutiny Committee, which\r\nhas scrutinized and found the 3rd respondent to be responsive\r\nand had to be awarded the contract in its favour.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 26. For the aforesaid reasons, finding no merit in the\r\npetition, the petition stands dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '62a540c892d5056f1d23ea7e1144d0aa.jpeg', '672ba0480e0b547842554fc6c1db180e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-16', 1, '', '', '2022-11-09 11:35:59', '2022-11-16 12:22:53'),
(2386, 'o8iClgW00pJKJGjn4DIZK926x', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque issued towards refund of failed marriage expenses constitutes enforceable debt under Section 138 of the N.I. Act and the same is not hit by Section 23 of the Contract Act. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pavithra S Vs Mahadevappa M.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1584 of 2017 decided on 21 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This appeal is filed under section 378(4) of\r\nthe Code of Criminal Procedure (‘Cr .P.C.’ for short)\r\nby the complainant in a proceeding for the offence\r\npunishable under section 138 of Negotiable\r\nInstruments Act (‘N.I.Act’ for short). The question\r\nthat arises in this appeal is whether the learned\r\nSessions Judge correctly applied section 23 of the\r\nIndian Contract Act for allowing the appeal filed\r\nbefore him under section 374(3) of Cr .P.C. for\r\nreversing the judgment o f conviction passed by\r\nthe Magistrate .</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. If the events are briefly traced, the\r\nmarriage between the complainant and Pradeep\r\nKumar , the son of the accused was held on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">21.10.2012 . Their marriage was very short lived,\r\nthey stayed together only for three days. Then on\r\n5.11.2012, the complainant and Pradeep Kumar\r\nentered into a Memorandum of Understanding\r\n(Mou) as per Ex.P .6 for dissolving their marriage.\r\nOne of the stipulations of the MoU was that the\r\naccused agreed to return the marriage expenses of\r\nRs.5 ,00,000/- to the complainant and in that\r\nregard he issued a cheque (Ex.P.1) bearing\r\nNo.217264 dated 5.1.2013 for Rs.5,00,000/- to\r\nthe complainant. It was a post- dated cheque.\r\nWhen it was presented to the bank for\r\nencashment, it was not honoured because of stop\r\npayment instruction given by the accused as\r\nevidenced by Ex.P .2 and this resulted in accused\r\nbeing prosecuted for the offence under section 138\r\nof N.I .Act.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The case of the complainant is founded on\r\nthe terms and conditions of the MoU dated\r\n5.11.2012 marked Ex.P .6 . One of the terms and\r\nconditions is that since the marriage broke down <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and the marriage expenses had been borne by the\r\ncomplainant’s father, the accused being the father\r\nof the first party, i.e ., Pradeep Kumar issued a\r\ncheque dated 5 .1.2012 for Rs.5,00,000/- in order\r\nto return the marriage expenses. The Sessions\r\nJudge has held that no law provides for return of\r\nthe marriage expenses and in this view even if a\r\ncheque is issued, it does not give rise to legally\r\nenforceable debt or liability in order to invoke\r\nsection 138 of N.I .Act. I do not think that this\r\nfinding is correct. Whenever the marriages fail,\r\nusually the parties resort to exchanging of articles\r\nmutually given and taken at the time of marriage\r\nand agree for returning the marriage expenses or\r\na part o f it to such party who has borne all the\r\nexpenses. It is quite common for the parties to\r\ncome to such an understanding and it does not\r\nrequire sanction of law. It was in this background,\r\nthe accused appears to have agreed to return the\r\nmarriage expenses</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Now the decisions cited by Sri. H.K.Ravi\r\nmay be referred. The judgment of the co-ordinate\r\nbench of this court in the case of R.Parimala Bai\r\nVs. Bhaskar Narasimhaiah – Crl.P.\r\nNo.1387/2011 [(2018 (4) AKR 379], the facts\r\nwere that complainant paid money to the accused\r\nfor securing a job for his son and when the accused\r\ncould not secure the job, he issued a cheque for\r\nrepaying Rs.10 ,00,000/-. The dishonour of cheque\r\nresulted in criminal action.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Virender Singh Vs. Lakxmi Narain -\r\nLAWS(DLH)-2006-11-222 dealt with a situation\r\nwhere the accused received a sum of Rs.80,000/-\r\nfrom the complainant for the purpose of securing a\r\njob in Haryana Police establishment. The accused\r\nfailed to secure a job and issued a cheque for\r\nRs.80,000/- to the complainant. The cheque being\r\nbounced, action under section 138 o f N.I .Act was\r\ntaken. In that context section 23 of the Indian\r\nContract Act was applied to hold that the purpose\r\nof issuance of cheque was unlawful.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. The factual situation in the above two\r\ncases clearly show that section 23 of the Indian\r\nContract Act is applicable and the facts clearly fit\r\ninto illustration (f) to section 23. But the factual\r\nsituation in the case on hand is different.\r\nTherefore the above two judgments are not helpful\r\nto the respondent. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. In the case of Sri. Taher N. Khambati\r\nVs. M/s. Vinayaka Enterprises,\r\nSecunderabadand other (1995) Cr.L.J. 560, the\r\nproved facts showed that the appellant therein\r\nobtained a blank signed cheuqe as a threat for\r\nrealization o f the amount lent by him. This\r\ndecision is also not applicable as in the case on\r\nhand, the defence version about threat has failed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. Therefore from the above discussion I\r\ncome to conclusion that the Sessions Court has\r\nwrongly applied section 23 of the Indian Contract\r\nAct to reverse the judgment of the Magistrate. In\r\nthis view appeal deserves to be allowed . <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Appeal is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '37caecd3406566a6082df4686cd96b14.JPG', '5bc8f1dc492cef567deb05d9f85a1264.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-15', 1, '', '', '2022-11-09 11:45:18', '2022-11-15 08:21:21');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2387, '0ao9au5NrsxsfSK5z98dlB63U', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Merely because the victim is the same, it cannot be said that only one crime should have been registered.” Karnataka High Court approves registration of separate FIRs for minor\'s rape by several accused.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mohammad Shariff Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 8502 of 2022 decided on 17 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court calling in question\r\nregistration of crime in Crime No.12 of 2022 for offences punishable\r\nunder Sections 363, 376, 506, 109 r/w 34 of the IPC and Sections\r\n4, 6 and 17 of the Protection of Children from Sexual Offences Act,\r\n2012 (‘POCSO Act’ for short) pending in Special Case No.108 of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2022 before the Additional District & Sessions Judge, FTSC-II\r\n(POCSO), Mangalore.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Sans details, facts in brief, as borne out from the\r\npleadings, are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> A complaint comes to be registered by the 2nd respondent on\r\n07-02-2022 alleging that the complainant is residing along with her\r\naunt and uncle and on 03-02-2022 the complainant had met with\r\nsexual harassment from one Shameena and others and filed the\r\ncomplaint. The complaint initially did not disclose the names of\r\npersons who were involved in the alleged sexual harassment. It was\r\nalleged that the complainant came to know one Suzaina and\r\nthrough her she came to know Shameena who was residing in\r\nS.M.R. Apartment at Nandigudde, Mangalore. She has taken her to\r\na flat on 12-11-2021 and on the said date an unknown person by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">name Mr. Fahim Haji @ Mohammed Sharif get himself introduced\r\nthrough the said Shameena and the said Shameena/accused No.1\r\nforcibly sent her to a bedroom to indulge in sexual activity and the\r\ncomplaint narrates that if the complainant did not oblige for sexual\r\nactivity, she would be finished. Later, the complainant again\r\nnarrates that accused No.1 had threatened her that if she discloses\r\nthe incident to anyone else, she would face dire consequences. It\r\nwas further alleged that one Shariff also harassed the complainant\r\nsexually and the said customer was sent by one Sana and she can\r\nidentify the person if she sees him in the future.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The afore-narrated link in the chain of events is not in\r\ndispute. A crime comes to be registered on 03-02-2022 in Crime\r\nNo.8 of 2022 for offences punishable under Sections 363, 354A,\r\n376, 506 r/w 34 of the IPC, Sections 4 and 6 of the POCSO Act and\r\nSections 3, 4, 5 and 8 of the Immoral Traffic (Prevention) Act, 1956\r\nagainst several accused, three of whom were known and two of\r\nwhom were unknown. The allegation in the complaint was that the\r\ncomplainant who was a college student was being used and put into\r\nthe business of prostitution. The victim escaped the clutches of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">persons who were holding her and registered the complaint. Later\r\nanother complaint comes to be registered on 07-02-2022\r\nidentifying a few others who have indulged in sexual intercourse\r\nwith the victim. This complaint dated 07-02-2022 lodged becomes\r\nsubject matter of four FIRs viz., 12 of 2022, 13 of 2022, 14 of 2022\r\nand 15 of 2022 among others. In all these crimes so registered,\r\nthe petitioner again was not one of those accused.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. The contention of the learned senior counsel appearing for\r\nthe petitioner that multiple FIRs are registered on the very same\r\nincident sans substance as there was physical contact of every man\r\nwho had come in contact with a minor girl. Those are separate\r\nincidents which may have happened on the same day. The accused\r\nare different as every man was different. Merely because the victim\r\nis the same, it cannot be said that only one crime should have been\r\nregistered and all of them should be put in one basket as accused in\r\nthe said crime. Therefore, the submission of the learned senior\r\ncounsel for petitioner that there are multiple FIRs registered by the\r\nState and it is an abuse of the process of law is unacceptable.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n 12. The other submission of the petitioner is that a customer\r\nshould be absolved and not liable to be prosecuted under the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Immoral Traffic (Prevention) Act and, therefore should be let off is\r\nagain unacceptable as, it is not a case where the alleged victim was\r\nabove 18 years and it is not a case that the Police have conducted a\r\nsearch and unearthed any incident in a particular place which has\r\nbeen used to run a rocket of prostitution. Here it is the\r\ncomplainant herself who registers the complaint. She is the victim\r\nof sexual abuse and has registered the said complaint. Therefore,\r\nthe learned senior counsel cannot draw parallel to a search being\r\nconducted on spa, brothel or a lodge where the customer is found\r\nto have indulged in such activity with the victim. It is in those cases\r\nunder the Immoral Traffic (Prevention) Act, those customers have\r\nbeen let off the hook. The case at hand is not the one of that kind.\r\nThe offences do not stop at POCSO but even under the Information\r\nTechnology Act for having threatened the victim that her videos\r\nwould be uploaded on multiple websites.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13. If the contention of the petitioner is accepted that he is a\r\ncustomer and he should be let off, it would be putting a premium\r\non the activities of the petitioner who has indulged in such acts\r\nwhich prima facie meet the ingredients of all the offences alleged </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">against him. Technicality or hyper-technicality cannot mask the\r\nallegation of the kind alleged in the case at hand.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 14. Finding no merit in the petition, the petition meets its\r\ndismissal. Accordingly it is dismissed.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>It is made clear that the observations made in the course of\r\nthe order are only for the purpose of considering the case of the\r\npetitioner under Section 482 of Cr.P.C. and shall not influence\r\nfurther proceedings pending against other accused.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> Consequently, I.A.No.1/2022 also stands dismissed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ac9074a5670a6a2cbf390e4a1491f60a.jpeg', '12596ed76580abe22e854e118957b052.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-11', 1, '', '', '2022-11-09 12:17:11', '2022-11-11 09:02:32'),
(2388, 'QEuFO0OCYurN2ARExHIUUAAPq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Freezing of bank account. Account holder whose account is frozen or de-frozen for transferring the amount to third parties must be notified and heard before orders are passed under Sections 451 and 457 of the Cr.P.C. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rahul Chari and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 2865 of 2022 decided on 17 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasana.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Brief facts that lead the petitioners to this Court, as borne\r\nout from the pleadings, are as follows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The 1st petitioner is the whole time Director of “PhonePe\r\nPrivate Limited”/2nd petitioner. The 2nd petitioner is a pioneer in\r\ndigital payments and financial services and is also engaged in the\r\nbusiness of providing digital payment platform services enabling\r\nend users and customers to make payment and merchant/business\r\nentities to accept payment by card which is popularly known as\r\n“Unified Payment Interface” (‘UPI’). The 2nd petitioner is the\r\nCompany and as observed hereinabove claimed to be a leading\r\nplayer in the digital payment ecosystem. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The 2nd petitioner maintains a bank account with\r\nrespondent No.3/Yes Bank Limited (‘Nodal Account Bank’ for short),\r\na Banking Company established under the Companies Act, 1956.\r\nThe Nodal Account Bank is expected to carry out business for the\r\nnodal account holder i.e., PhonePe which is for a special purpose\r\ncreated for receiving monies from the participating Banks and\r\nremitting to specific merchants, in terms of the Reserve Bank of\r\nIndia mandate. The 2nd petitioner is thus an intermediary receiving\r\non line payments and those payments getting into nodal account\r\nand payments to the seller moving out from the nodal account\r\ninstantaneously.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Respondent No.2 who had her account in ICICI Bank files\r\nan application before the concerned Court invoking Sections 451\r\nand 457 of the CrPC praying to defreeze the personal account of the\r\n1\r\nst petitioner and transfer the amount to the account of the 2nd\r\nrespondent. The Investigating Officer submits his no objection and\r\nby an order dated 23-12-2021 the learned magistrate disposed of\r\nthe application by issuing a direction to defreeze the account of the\r\n1\r\nst petitioner and transfer the amount of Rs.69,143/- from his\r\npersonal account to the account of the 2nd respondent. After such\r\ntransfer, the 1st petitioner comes to know that the amounts have\r\nbeen debited from his personal account and sought details from the\r\n4\r\nth respondent to whom the amount was transferred. It is then the\r\n1\r\nst petitioner comes to know that the amount has been transferred\r\nto the account of the 2nd respondent upon an order passed by the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">learned Magistrate. No alternatives being available, the petitioners\r\nhave knocked the doors of this Court in the subject petition.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. The afore-narrated facts are not in dispute and therefore\r\nnot reiterated. The 2nd petitioner is a Unified Payment Interface\r\nplatform. All such UPI platforms are not owned by them. They are\r\nowned by the National Payments Corporation of India (‘NPCI’ for\r\nshort) and legally the petitioners are considered as third party\r\napplication provider by the NPCI or a system provider. In effect,\r\nregardless of different nomenclatures under different enactments,\r\nthe UPI service providing entities like the 2nd petitioner/PhonePe\r\nhave the status of intermediaries as obtaining under the\r\nInformation Technology Act, 2000 (‘IT Act’ for short). Section 79 of\r\nthe IT Act protects the intermediaries to the extent as obtaining\r\nunder the provision.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. It is not in dispute that the 2nd petitioner is an\r\nintermediary and the 1st petitioner is the whole time Director of the\r\n2\r\nnd petitioner. A transaction is made by the 2nd respondent, online,\r\nfor an amount of Rs.69,143/- with one suspect Amith Mishra. The\r\npayment is routed through “PhonePe”. It appears that the said\r\nAmith Mishra turns out to be a fraud and the amount so transacted\r\nbecomes a fraudulent transaction. An e-mail is sent by the 2nd\r\nrespondent to the cyber cell reporting the incident of such UPI\r\nfraud. Pursuant to the e-mail so sent by the 2nd respondent, the\r\nnodal account of PhonePe was directed to be freezed. Later the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">complainant registers a complaint before the jurisdictional Police\r\ninforming them about the transaction that took place on\r\n02.04.2021, pursuant to which, a crime comes to be registered\r\nagainst unknown person in Crime No.256 of 2021. While\r\nregistering the crime, the CCIR is also placed on record. In the\r\nCCIR the suspect details are also forthcoming. The name of the\r\nsuspect is Amith Mishra and the number of the suspect is also\r\nindicated.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. One glaring factor is that both the petitioners are not the\r\naccused; though for freezing of account one need not be an\r\naccused. It is only money trail that leads to suspicion as also\r\nfreezing of account. Therefore nobody need be heard as Section\r\n102 of the Cr.P.C. empowers Investigating Agency to direct freezing\r\nof account within its sweep. The case at hand is not of that kind.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. In the entire process the 1st petitioner from whose\r\naccount the amount is transferred is not even heard in the matter.\r\nThough the Court notices that the amount belongs to the victim/\r\ncomplainant, which accused is even known and there are no rival\r\nclaimants, if notice is not issued to the account holder from whom\r\ndebit is sought, there cannot be a rival claim. This rudimentary fact\r\nis given a go-bye by the learned Magistrate. The application under\r\nSections 451 and 457 of the Cr.P.C. is dealt with by the learned\r\nMagistrate in a casual and cavalier manner. The amount however\r\nsmall it is, is the property of an individual in whose account, it is\r\nheld. Such amount which is a right to property of the account\r\nholder cannot be taken away without even bringing to his\r\nknowledge. There has been a debit from the account of the 1st\r\npetitioner for the purpose of satisfying the complainant. While the\r\nright of a complainant is to be looked into, since the complainant is\r\na victim of a fraud, but the investigation cannot be cut short\r\nwithout unearthing the fraud and closing the issue, by transfer of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">amount from a third party, in the case at hand, from the personal\r\naccount of the 1st petitioner. All the factors will have to be borne in\r\nmind by the Magistrates while dealing with an application under\r\nSections 451 and 457 Cr.P.C. Therefore, the impugned order, on\r\nthe face of it, is arbitrary and cannot stand the scrutiny of law.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">19. The learned Magistrates are required to note that they are\r\ndealing with the properties of third parties. Decision on an</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>application under Sections 451 and 457 Cr.P.C. cannot become a\r\nfrolicsome act on the part of the learned Magistrates merely\r\nbecause it is subject to indemnity. It is not the question of security\r\nbut it is the question of right to property of an individual, from\r\nwhose account the money is transferred without any information to\r\nhim. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">20. Freezing of account in terms of Section 102 of the Cr.P.C.\r\nis a power that is available, but if the amount is sought to be\r\ntransferred to any other account, the account holder whose account\r\nis frozen or de-frozen for the purpose of transfer of the amount </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">shall be heard. The learned Magistrates considering the applications\r\nunder Sections 451 and 457 of the Cr.P.C. shall bear in mind the\r\naforesaid directions, while passing orders under the said provisions,\r\nonly in the cases of the kind aforementioned. In the light of the\r\npreceding analysis, the purpose of Section 79 of the IT Act is not\r\ngone into. The contentions remain open.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The Writ Petition is allowed and the order dated\r\n23.12.2021 passed by the I Additional Chief\r\nMetropolitan Magistrate, Bengaluru in Cr.No.256 of\r\n2021 is quashed.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) The amount debited from the account of the 1st\r\npetitioner shall be refunded to his account forthwith. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '23c56fe73f64b1cc8166a886ff08419c.jpeg', '438ec69f6cf9b06cf1e0ec0e5819322f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-15', 1, '', '', '2022-11-09 12:34:01', '2022-11-15 03:22:25'),
(2389, 'CEdlUkKGugv5aDpcaJzGaLyO7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Insurer cannot deny liability relying on exclusion clause when the insurer received premium even for the excluded place (basement). Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/s Texco Marketing Pvt Ltd Vs Tata AIG General Insurance Company Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8249 of 2022 decided on 9 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Surya Kant and Justice M.M. Sundresh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The appellant secured a Standard Fire & Special Perils policy from the\r\nrespondent on 28.07.2012. The policy was effective from 28.07.2012 to\r\n27.07.2013. It was meant to cover a shop situated in the basement of the\r\nbuilding. However, the exclusion clause of the contract specifies that it does not\r\ncover the basement. Due inspection of the shop was made which was actually\r\nsituated on the other side of the road from the office of respondent No. 1. Not\r\nonly this shop of the appellant, but yet another shop similarly situated, was also <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">insured by respondent No. 1. The appellant continued to pay the premium\r\npromptly.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>2. The appellant put up further construction, for which due notice was given and\r\ndue inspection was also made. The shop met with a fire accident for which the\r\nappellant raised a claim. The surveyor of respondent No. 1 also made an\r\ninspection, on the basis of which the appellant was instructed to refurnish its\r\nshop for the purpose of due evaluation. While arriving at the sum payable, the\r\nsurveyor did notice the fact that the earlier inspections were made and that the\r\nfact that the shop was in a basement was to the knowledge of the insurer. The\r\nclaim made was repudiated by respondent No. 1, taking umbrage under the\r\nexclusion clause. </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The State Consumer Disputes Redressal Commission (hereinafter referred to as\r\n‘the State Commission’) rejected the contention of respondent No. 1 on the\r\npremise that there was no adequate disclosure, the mandatory provisions have\r\nnot been followed, as such the insurer was deficient in service and indulged in\r\nunfair trade practice. The fact that a similarly placed shop was also covered, was\r\nnot in dispute. The amount payable is only after due deduction of the goods\r\nmeant for the third party.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The aforesaid decision was overturned by the National Consumer Disputes\r\nRedressal Commission (hereinafter referred to as ‘the National Commission’) <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">despite a finding to the effect that respondent No. 1 was not in compliance of the\r\nmandate of the law and inspection was indeed done prior to the execution of the\r\ncontract, and even thereafter. Having found a deficiency in service, it placed\r\nreliance upon the exclusion clause in setting aside the decision of the State\r\nCommission while granting a sum of Rs.7.5 lakhs. It is this decision of the\r\nNational Commission which is under challenge before us</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. “Whether an exclusion clause destroying the very contract knowingly entered,\r\ncan be permitted to be used by a party who introduced it, becomes a beneficiary\r\nand then to avoid its liability?”</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21.On a discussion of the aforesaid principle, we would conclude that there is an\r\nonerous responsibility on the part of the insurer while dealing with an exclusion <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">clause. We may only add that the insurer is statutorily mandated as per Clause\r\n3(ii) of the Insurance Regulatory and Development Authority (Protection of\r\nPolicy Holder’s Interests, Regulation 2002) Act dated 16.10.2002 (hereinafter\r\nreferred to as IRDA Regulation, 2002) to the effect that the insurer and his agent\r\nare duty bound to provide all material information in respect of a policy to the\r\ninsured to enable him to decide on the best cover that would be in his interest.\r\nFurther, sub-clause (iv) of Clause 3 mandates that if proposal form is not filled\r\nby the insured, a certificate has to be incorporated at the end of the said form\r\nthat all the contents of the form and documents have been fully explained to the\r\ninsured and made him to understand. Similarly, Clause 4 enjoins a duty upon the\r\ninsurer to furnish a copy of the proposal form within thirty days of the\r\nacceptance, free of charge. Any non-compliance, obviously would lead to the\r\nirresistible conclusion that the offending clause, be it an exclusion clause, cannot\r\nbe pressed into service by the insurer against the insured as he may not be in\r\nknowhow of the same.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>33.Under sub-section (2) of Section 49 and 59 of the 2019 Act, the State\r\nCommission and the National Commission, respectively, may declare any terms\r\nof the contract being unfair to any consumer to be null and void. The principle\r\ngoverning the doctrine of civil remedy of a contract is well enshrined in this\r\nprovision.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34.In these provisions, there exists ample power to declare any terms of the contract\r\nas unfair by the State Commission and the National Commission. The words\r\n“any terms of the contract” would empower the State Commission and the\r\nNational Commission to exercise unrestricted jurisdiction over any particular\r\nterm of a contract, if in its opinion, its introduction by the insurer has certain\r\nelements of unfairness. The consequence of the declaration of that term as\r\nunfair, would make the contract active and executable to the benefit of the\r\nconsumer. Therefore, this provision takes care of a possible mischief by the\r\ninsurer as against the consumer.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n35.We are conscious of the fact that the aforesaid provisions have been introduced\r\nunder the new 2019 Act. However, the intendment of these provisions could be\r\nseen as implied even under the prior Act, i.e. the Consumer Protection Act,\r\n1986. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>36.Both the forums have held concurrently that respondent No. 1 was conscious of\r\nthe fact that the contract was entered into for insuring a shop situated in the\r\nbasement. The aforesaid position is not only a factual one but also accepted by\r\nthe respondents as no challenge has been laid against the impugned order.\r\nSimilarly, there was no specific denial on the non-compliance of adequate\r\nnotice. The National Commission has not given any finding on this aspect,\r\nthough it was dealt with in extenso by the State Commission. On a reading of\r\nSection 21(A) of the Consumer Protection Act, 1986, it is clear that it is not akin\r\nto Section 96 of the Code of Civil Procedure, 1908. Even otherwise, the\r\nimpugned order has not considered all the relevant materials which were duly\r\ntaken note of by the State Commission.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>37.Once it is proved that there is a deficiency in service and that respondent No. 1\r\nknowingly entered into a contract, notwithstanding the exclusion clause, the\r\nconsequence would flow out of it. We have already discussed the scope and\r\nambit of the provisions under the Indian Contract Act, 1872. Even as per the\r\ncommon law principle of acquiescence and estoppel, respondent No. 1 cannot be\r\nallowed to take advantage of its own wrong, if any. It is a conscious waiver of\r\nthe exclusion clause by respondent No. 1.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">38.Under the impugned order, we have already taken note of and discussed, the\r\nfindings of the State Commission, which are indeed approved by the National\r\nCommission. These findings are sufficient enough to come to the conclusion that\r\nthe terms of the contract are unfair, particularly the exclusion clause, and that\r\nrespondent No. 1 has indulged in unfair trade practice. In such view of the\r\nmatter, the decision of the National Commission cannot be sustained as the\r\nappellant cannot be non-suited only on the ground of mere deficiency in service\r\nwithout taking note of the fact that it is the duty of the Forum to grant the\r\nconsequential relief by exercising the power under Section 14(d) and 14(f) of the\r\nConsumer Protection Act, 1986 which mandates the payment of adequate\r\ncompensation by way of an award. The said provision makes it consequential in\r\ngranting adequate compensation once it finds deficiency, the existence of unfair </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">terms in the contract and unfair trade practice on the part of the other party. In\r\nother words, a party is entitled for the relief which the law provides.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>39.Non-compliance of Clauses (3) and (4) of the IRDA Regulation, 2002 preceded\r\nby unilateral inclusion, and thereafter followed by the execution of the contract,\r\nreceiving benefits, and repudiation after knowing that it was entered into for a\r\nbasement, would certainly be an act of unfair trade practice. This view is\r\nfortified by the finding that the exclusion clause is an unfair term, going against\r\nthe very object of the contract, making it otherwise un-executable from its\r\ninception.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>40.Therefore, we have no hesitation in setting aside the order passed by the\r\nNational Commission. However, we are in agreement with the submission made\r\nby the counsel appearing for the respondents that the State Commission without\r\nany basis granted a sum of Rs.2.5 lakhs towards harassment and mental agony.\r\nWe are of the view that no case for awarding amount under that head has been\r\nmade out as the respondents merely took a legal stand.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>41.In light of the aforesaid, the order impugned passed by the National Commission\r\nin F.A. No. 275 of 2016 stands set aside except to the extent of declining a sum\r\nof Rs.2.5 lakhs towards harassment and mental agony. The appeal stands\r\nallowed in part.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'db2301f4722de153f808686cd604f74c.jpeg', '3f2d99f18919427e698ddd04e1155e6d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-15', 1, '', '', '2022-11-10 11:37:31', '2022-11-15 10:27:04');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2399, 'RsQilYNtglaPsMUiDQkjoKhVi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Online aggregator cannot be held liable for fraud committed on purchaser by a third party simply because the amounts are transferred using the platform. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Rahul Chari and others Vs State of Karnataka and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 2865 of 2022 decided on 17 October 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice M. Nagaprasana.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. Brief facts that lead the petitioners to this Court, as borne out from the pleadings, are as follows:-</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The 1st petitioner is the whole time Director of “PhonePe Private Limited”/2nd petitioner. The 2nd petitioner is a pioneer in digital payments and financial services and is also engaged in the business of providing digital payment platform services enabling end users and customers to make payment and merchant/business entities to accept payment by card which is popularly known as “Unified Payment Interface” (‘UPI’). The 2nd petitioner is the Company and as observed hereinabove claimed to be a leading player in the digital payment ecosystem. <br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. The 2nd petitioner maintains a bank account with respondent No.3/Yes Bank Limited (‘Nodal Account Bank’ for short), a Banking Company established under the Companies Act, 1956. The Nodal Account Bank is expected to carry out business for the nodal account holder i.e., PhonePe which is for a special purpose created for receiving monies from the participating Banks and remitting to specific merchants, in terms of the Reserve Bank of India mandate. The 2nd petitioner is thus an intermediary receiving on line payments and those payments getting into nodal account and payments to the seller moving out from the nodal account instantaneously.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">6. Respondent No.2 who had her account in ICICI Bank files an application before the concerned Court invoking Sections 451 and 457 of the CrPC praying to defreeze the personal account of the 1 st petitioner and transfer the amount to the account of the 2nd respondent. The Investigating Officer submits his no objection and by an order dated 23-12-2021 the learned magistrate disposed of the application by issuing a direction to defreeze the account of the 1 st petitioner and transfer the amount of Rs.69,143/- from his personal account to the account of the 2nd respondent. After such transfer, the 1st petitioner comes to know that the amounts have been debited from his personal account and sought details from the 4 th respondent to whom the amount was transferred. It is then the 1 st petitioner comes to know that the amount has been transferred to the account of the 2nd respondent upon an order passed by the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">learned Magistrate. No alternatives being available, the petitioners have knocked the doors of this Court in the subject petition.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">12. The afore-narrated facts are not in dispute and therefore not reiterated. The 2nd petitioner is a Unified Payment Interface platform. All such UPI platforms are not owned by them. They are owned by the National Payments Corporation of India (‘NPCI’ for short) and legally the petitioners are considered as third party application provider by the NPCI or a system provider. In effect, regardless of different nomenclatures under different enactments, the UPI service providing entities like the 2nd petitioner/PhonePe have the status of intermediaries as obtaining under the Information Technology Act, 2000 (‘IT Act’ for short). Section 79 of the IT Act protects the intermediaries to the extent as obtaining under the provision.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">13. It is not in dispute that the 2nd petitioner is an intermediary and the 1st petitioner is the whole time Director of the 2 nd petitioner. A transaction is made by the 2nd respondent, online, for an amount of Rs.69,143/- with one suspect Amith Mishra. The payment is routed through “PhonePe”. It appears that the said Amith Mishra turns out to be a fraud and the amount so transacted becomes a fraudulent transaction. An e-mail is sent by the 2nd respondent to the cyber cell reporting the incident of such UPI fraud. Pursuant to the e-mail so sent by the 2nd respondent, the nodal account of PhonePe was directed to be freezed. Later the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">complainant registers a complaint before the jurisdictional Police informing them about the transaction that took place on 02.04.2021, pursuant to which, a crime comes to be registered against unknown person in Crime No.256 of 2021. While registering the crime, the CCIR is also placed on record. In the CCIR the suspect details are also forthcoming. The name of the suspect is Amith Mishra and the number of the suspect is also indicated.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">15. One glaring factor is that both the petitioners are not the accused; though for freezing of account one need not be an accused. It is only money trail that leads to suspicion as also freezing of account. Therefore nobody need be heard as Section 102 of the Cr.P.C. empowers Investigating Agency to direct freezing of account within its sweep. The case at hand is not of that kind.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">17. In the entire process the 1st petitioner from whose account the amount is transferred is not even heard in the matter. Though the Court notices that the amount belongs to the victim/ complainant, which accused is even known and there are no rival claimants, if notice is not issued to the account holder from whom debit is sought, there cannot be a rival claim. This rudimentary fact is given a go-bye by the learned Magistrate. The application under Sections 451 and 457 of the Cr.P.C. is dealt with by the learned Magistrate in a casual and cavalier manner. The amount however small it is, is the property of an individual in whose account, it is held. Such amount which is a right to property of the account holder cannot be taken away without even bringing to his knowledge. There has been a debit from the account of the 1st petitioner for the purpose of satisfying the complainant. While the right of a complainant is to be looked into, since the complainant is a victim of a fraud, but the investigation cannot be cut short without unearthing the fraud and closing the issue, by transfer of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">amount from a third party, in the case at hand, from the personal account of the 1st petitioner. All the factors will have to be borne in mind by the Magistrates while dealing with an application under Sections 451 and 457 Cr.P.C. Therefore, the impugned order, on the face of it, is arbitrary and cannot stand the scrutiny of law.</span><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">19. The learned Magistrates are required to note that they are dealing with the properties of third parties. Decision on an</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">application under Sections 451 and 457 Cr.P.C. cannot become a frolicsome act on the part of the learned Magistrates merely because it is subject to indemnity. It is not the question of security but it is the question of right to property of an individual, from whose account the money is transferred without any information to him. <br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">20. Freezing of account in terms of Section 102 of the Cr.P.C. is a power that is available, but if the amount is sought to be transferred to any other account, the account holder whose account is frozen or de-frozen for the purpose of transfer of the amount </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">shall be heard. The learned Magistrates considering the applications under Sections 451 and 457 of the Cr.P.C. shall bear in mind the aforesaid directions, while passing orders under the said provisions, only in the cases of the kind aforementioned. In the light of the preceding analysis, the purpose of Section 79 of the IT Act is not gone into. The contentions remain open.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">ORDER</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(i) The Writ Petition is allowed and the order dated 23.12.2021 passed by the I Additional Chief Metropolitan Magistrate, Bengaluru in Cr.No.256 of 2021 is quashed.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(ii) The amount debited from the account of the 1st petitioner shall be refunded to his account forthwith. </span></p>', 'fdc6b474374deedd145fc92bac27d161.jpeg', 'eadb74e84ecd7c12d30813fc5e39fdf9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-16', 1, '', '', '2022-11-15 11:57:30', '2022-11-16 03:23:30'),
(2391, 'doO5FBj7umfX6R2KoGMTZ7miH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land acquisition. When no further developmental activity of the acquired land is required, deduction of compensation towards the developmental activities is not permissible. Supreme Court.    ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>S. Shankaraiah and others Vs The Land Acquisition Officer and Revenue Divisional Officer and Revenue Divisional Officer.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6821 of 2022 decided on 9 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice Krishna Murari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 06.12.2013 passed by the High Court of Andhra Pradesh at Hyderabad in respective first appeals No. 1634 of 2001 and other allied appeals, the original land owners/claimants have preferred the present appeals seeking enhancement of the amount of compensation for the lands acquired.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. Large extent of land in different survey number in Adrial Village of Manthani Mandal, Karimnagar District came to be acquired by the State Government for the benefit of Singareni Collieries Company Limited. The lands were acquired for the purposes of excavation of coal. Notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act, 1894’) came to be issued on 13.05.1985. Declaration under Section 6 of the Act 1894 was issued on 31.07.1985. The Land Acquisition Officer passed the awards in the year 1987, fixing the market value for the acquired lands at Rs.7,000/­ per acre for Category 1 – Dry Lands under Cultivation and at Rs.6000/­ per acre for Category 2 – Dry Lands Left Fallow. Not satisfied with the compensation awarded by the Land Acquisition Officer, the land owners sought references under Section 18 of the Act, 1894. The land owners claimed the compensation at Rs.2 lakhs per acre. The Reference Court fixed the market value at Rs.30,000/­ per acre and Rs.50,000/­ per acre. The Reference Court also awarded the compensation @ Rs.15,000/­ per acre towards sub­soil mineral rights. By the impugned common judgment and order the High Court has determined and awarded the compensation @ Rs.80,000/­ per acre considering the market value of the land Rs.1,23,000/­ per acre and thereafter deducting 1/3rd . The High Court has also in addition awarded Rs.10,000/­ per acre as part of the market value for sub­soil rights. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.2 At the outset, it is required to be noted that against the very impugned common judgment and order the beneficiary – Singareni Collieries Company Limited approached this Court by way of special leave petitions which have been dismissed. The review applications are also dismissed. Therefore, the short question which is posed for consideration before this Court is whether the amount of compensation determined / awarded by the High Court is required to be enhanced in the appeals preferred by the original claimants/land owners?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. By the impugned common judgment and order the High Court has determined and awarded Rs.80,000/­ per acre. The High Court has also granted/awarded Rs.10,000/­ for sub­soil rights on account of coal deposits. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court, the original claimants/land owners have preferred the present appeals seeking enhancement of the amount of compensation.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6.3. Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand and when the acquisition is solely for the purpose of excavation of coal and the entire land is acquired on the basis of the estimates of the coal reserve identified and the entire land is to be mined and used and no further developmental activity is required, we are of the opinion that in the facts and circumstances of the case, the High Court has erred in deducting 1/3rd towards the developmental activities. The additional amount awarded by the High Court at Rs.10,000/­ per acre on account of coal deposits is not required to be interfered with more particularly when the same has been confirmed by this Court in as much as the appeals preferred by the respondents have been dismissed by this Court.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. In view of the above and for the reason stated above, present appeals succeed in part. It is held that the original claimants shall be entitled to the compensation for the lands acquired at Rs.1,23,000/­ per acre with other statutory benefits which may be available under the provisions of the Act, 1894. In addition, the original claimants shall also be entitled to Rs.10,000/­ per acre as awarded by the High Court on account of coal deposits. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The impugned common judgment and order passed by the High Court is hereby modified to the aforesaid extent. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Present appeals are partly allowed to the aforesaid extent. However, in the facts and circumstances of the case there shall be no order as to costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd211866d74ee46f23ebf3828f036c435.jpeg', 'da0a00a6105a7f7b51af14379fa8158e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-10', 1, '', '', '2022-11-10 12:37:52', '2022-11-15 06:27:48'),
(2392, 'Gzhnnysvgb1C2sJHiQBdMYdS2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'N.I.Act. Where there are clear averments in statutory notice and complaint about the role of the directors and their responsibility, proceedings cannot be quashed merely on the plea that they had no direct role in the transaction. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Heena Thirumali Sateesh and others Vs M/S Minimelt Engineers India.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 2340 of 2022 decided on 2 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioners are before this Court calling in question\r\nproceedings in C.C.No.8836/2021, pending before the XX Additional\r\nS.C.J. and Additional Chief Metropolitan Magistrate (SCCH-22),\r\nBengaluru, registered for the offences under Section 138 of the\r\nNegotiable Instruments Act, 1881 (for short ‘the N.I.Act’). The\r\npetitioners are accused Nos.3 and 4 in the said proceedings.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The facts adumbrated are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioners are directors of Hoysala Projects Private\r\nLimited (for short ‘the Company’). The respondent is the\r\ncomplainant. The respondent and the Company entered into certain\r\ntransaction, in furtherance of which, the authorised signatory of the\r\nCompany issues certain cheques in favour of the respondent -\r\ncomplainant. The cheques, when presented for its realisation, were\r\nreturned for want of sufficient funds, which leads the complainant\r\nto take recourse to legal proceedings against the Company and the\r\noffice bearers, who are the petitioners herein the others. A\r\ncomplaint comes to be registered before the concerned Court\r\ninvoking Section 200 of the Cr.P.C., for the offence under Section\r\n138 of the Act. The learned Magistrate takes cognizance of the\r\noffence, issues summons to the petitioners and other accused. The\r\nissuing of summons to the petitioners is what drives them to this\r\nCourt in the subject petition. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">8. On a coalesce of the judgments rendered by the Apex\r\nCourt as quoted hereinabove what would unmistakably emerge is\r\nthe contents of the notice, the reply given by the noticee and the\r\ncontents of the complaint would form an important part of\r\narraigning the accused into the proceedings under Section 138 of\r\nthe NI Act. The petitioners are accused Nos.3 and 4 and the\r\ncontention of the learned counsel for the petitioners is that the\r\npetitioners have nothing to do in the affairs of the Company and\r\nthey are only Directors who are not aware of every day happenings\r\nin the Company. Therefore, the case at hand will have to be\r\nconsidered on the touchstone of the principles so laid down by the\r\nApex Court in the afore-quoted judgments. The legal notice was\r\ncaused by the respondent on the petitioners and other accused on\r\n08-04-2021 and the submission is that they have not replied to the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">said notice. Therefore, the contents of the complaint would become\r\ngermane to be considered. The submission of the respondent is that\r\nthe petitioners being Directors can be hauled into these\r\nproceedings.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. The respondent has produced certain documents before\r\nthis Court which is form No.12 issued in terms of Section 7(1)(c),\r\n168 & 170(2) of the Companies Act, 2013 which depict the\r\npetitioners to be whole time Directors and promoters of the\r\nCompany. The said documents would become circumstance enough\r\nfor the petitioners to be hauled into these proceedings as, in terms\r\nof the judgment of the Apex Court in the case of S.P.MANI\r\n(supra), a basic averment that is required for the complainant to\r\nallege is the role of the petitioners. It is later, for the petitioners to\r\ndefend themselves in the proceedings. In view of the contents of\r\nthe legal notice caused on the petitioners and the complaint\r\naverments (supra) making allegations and the documents, which\r\ndepict the petitioners to be whole time Directors and Promoters,\r\nthey cannot now contend that they are not responsible for day to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">day affairs of the Company, particularly in the light of the\r\njudgments of the Apex Court in the cases of ASHUTOSH ASHOK\r\nPARASRAMPURIYA and S.P.MANI (supra). Therefore, it\r\nbecomes a matter of trial for the petitioners to come out clean, as\r\nin the considered view of this Court, and as held by S.P.MANI\r\n(supra), basic requirement of an allegation that would become\r\ningredient of an offence under 138 and 141 of the NI Act is clearly\r\nbrought out in the complaint.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n 11. Insofar as the judgment relied on by the learned counsel\r\nappearing for the petitioners in the case of SUNITA PALITA\r\n(supra) it was concerning a case where there is not even an\r\naverment against the Managing Director or joint Managing Director\r\nof the Company therein. The said judgment would not become\r\napplicable to the facts of the case at hand, more so in the light of\r\nthe later judgment rendered by the Apex Court in the case of\r\nS.P.MANI (supra).</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. For the aforesaid reasons, finding no merit in the petition,\r\nthe petition would meet its dismissal and is accordingly dismissed.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f6f26d5fccd6955142b14b1731b8a6f3.jpeg', '1e4e55ec8d84e87edfc9274801268411.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-14', 1, '', '', '2022-11-10 12:45:48', '2022-11-14 12:01:40'),
(2393, '7ESptiW1T0lwUWU2fELME2RFA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Case of the prosecution in entirety is found to be doubtful and is full of inconsistencies”. Karnataka High Court acquits the accused in RTI activist Lingaraju murder case. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rangaswamy and others Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 118 of 2021 decided on 4 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Somashekar and Justice T.G. Shivashankare Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The appeal in Crl.A.No.118/2021 has been\r\npreferred by appellants / Accused Nos.1 to 3 namely,\r\nRangaswamy @ Ranga / Accused No.1, R. Shankar /\r\nAccused No.2 and Raghavendra @ Raghu / Accused\r\nNo.3, challenging the judgment of conviction dated\r\n28.10.2020 and order of sentence dated 29.10.2020 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">rendered by the Trial Court in S.C.No.428/2013. By\r\nthe said judgment, the Trial Court has convicted the\r\npresent appellants / Accused Nos.1 to 3 for offences\r\npunishable under Sections 120-B, 143, 147, 148, 302\r\nand read with Section 149 of the IPC. Apart from the\r\nsame, Accused No.1 has been convicted for offences\r\npunishable under Section 150 read with Section 149 of\r\nthe IPC. Further, Accused No.3 has been convicted also\r\nfor offences punishable under Section 506-B read with\r\nSection 149 of the IPC. They have been sentenced to\r\nundergo rigorous imprisonment for two years for the\r\noffences punishable under Section 120-B read with\r\nSection 149 IPC and to pay a fine of Rs.2,000/- each\r\nalong with default clause; further to undergo simple\r\nimprisonment for six months for the offence punishable\r\nunder Section 143 read with Section 149 of the IPC and\r\nto pay a fine of Rs.2,000/- each along with default\r\nclause; further to undergo simple imprisonment for one\r\nyear for the offence punishable under Section 147 read </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">with Section 149 of the IPC and to pay a fine of\r\nRs.1,000/- each along with default clause; further to\r\nundergo simple imprisonment for two years for the\r\noffence punishable under Section 148 read with Section\r\n149 of the IPC and to pay a fine of Rs.3,000/- each with\r\ndefault clause; Accused No.1 was sentenced to undergo\r\nsimple imprisonment for six months for the offence\r\npunishable under Section 150 read with Section 149 of\r\nthe IPC and to pay a fine of Rs.2,000/- along with\r\ndefault clause; Accused No.3 was sentenced to undergo\r\nsimple imprisonment for three months for the offence\r\npunishable under Section 506-B read with Section 149\r\nIPC and to pay a fine of Rs.1,000/- along with default\r\nclause; and Accused Nos.1 to 3 were sentenced to\r\nundergo rigorous imprisonment for life for the offence\r\npunishable under Section 302 read with Section 149 of\r\nthe IPC and to pay a fine of Rs.25,000/- along with\r\ndefault clause. All the sentences of imprisonment were </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to run concurrently with a further direction that the\r\nentire fine amount was to be remitted to the State.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. The factual matrix of these appeals are as\r\nunder:\r\nIt transpires from the case of the prosecution that\r\nas on 20.11.2012, a case in Cr.No.238/2012 was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">registered on the complaint filed by one Uma Devi /\r\nPW-1, before the Chamarajpet Police as per Exhibit P1.\r\nBased upon her complaint, the said case in\r\nCr.No.238/2012 was registered against unknown\r\npersons for offences punishable under Section 302 read\r\nwith Section 34 of the IPC, 1860. In her complaint, the\r\ninformant Uma Devi had stated that she was residing\r\nalong with her husband Lingaraju and also her children\r\nand her mother at B.M.K. Layout, Bengaluru. Lingaraju\r\nwas doing real estate business. In addition to that, he\r\nwas also an Editor of a newspaper “Maha Prachanda”.\r\nOn 20.11.2012, at around 6.45 a.m., her husband\r\ndeceased Lingaraju was drawing water from the public\r\ntap near their house and his wife Smt. Uma Devi also\r\nwent to fetch water from the public tap. In the\r\nmeanwhile, three unknown persons had come running\r\nholding sickles and knife, who are said to have\r\nassaulted her husband Lingaraju with the aforesaid\r\nweapons. When she tried to rescue her husband from </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">their clutches, she was also chased by the said\r\nunknown persons. When she came back, she found\r\nthat three persons had assaulted her husband\r\nLingaraju and done him to death. They had fled away\r\nfrom there towards Valmiki Nagar. It is further alleged\r\nthat she can identify the assailants. Further, she has\r\nstated that she suspected the involvement of\r\nGovindaraju who is arraigned as Accused No.8 in the\r\nmurder of her husband as he had a grinding axe against\r\nher husband suspecting that Lingaraju was responsible\r\nfor the raid conducted by the Lokayuktha police on his\r\nhouse. It is further alleged that her husband was also\r\ncalled on his mobile and was threatened, in respect of\r\nwhich she had suspected the role of Govindaraju.\r\nHence, she had sought for initiation of criminal case\r\nagainst the offenders. Based upon her complaint,\r\ncriminal law was set into motion by registering a case in\r\nCr.No.238/2012 by recording an FIR.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>231. The Trial Court has arrived at a conclusion\r\nand convicted Accused Nos.1 to 12 for offences reflected <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in the operative portion of the order relating to offences\r\nunder the IPC, 1860. But it is settled position of law\r\nthat when doubt arises in the evidence of the\r\nprosecution, benefit of doubt shall be extended to the\r\naccused. In all these appeals pertaining to Accused\r\nNos.1 to 12, though several witnesses have been\r\nsubjected to examination including the material\r\nwitnesses namely PW-1 and PW-2 who are eyewitnesses, it is seen that both PW-1 and PW-2 have\r\ngiven a go-by to the versions of their statements\r\ninclusive of the substance in the FIR said to be recorded\r\nby the Investigating Agency. Even the official witnesses\r\nwho have been examined on the part of the prosecution\r\nrelating to drawing of mahazar and also for having\r\nseized material objects marked as MO-1 to MO-54, but\r\nbenefit of doubt has accrued on the part o the\r\nprosecution. In the criminal justice delivery system,\r\nwhen doubt arises in the mind of the Court, the said\r\nbenefit shall be extended to the accused alone.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>232. PWs 1 and 2 being eye-witnesses on the part\r\nof the prosecution though have given their evidence as\r\nregards the murder Lingaraju, wherein his body was\r\nlying at the scene of crime, but they have not supported\r\nthe case of the prosecution to any extent and the same\r\nis revealed in their evidence itself and in the evidence\r\nrelating to the Test Identification Parade conducted by\r\nPW-52 / Taluk Executive Magistrate. Even at a cursory\r\nglance of the entire evidence on the part of the\r\nprosecution, it indicates that the prosecution did not\r\nfacilitate worthwhile evidence to convict the accused for\r\nthe alleged offences. Viewed from any angle, the\r\nprosecution though had adduced evidence by subjecting\r\nto examination in all PWs 1 to 90 and several\r\ndocuments have been got marked inclusive of the\r\nmaterial objects and so also had recorded voluntary\r\nstatements of the accused and even disclosure\r\nstatements of the accused, it is on the statement of Velu\r\nat Exhibit 310, Voluntary statement of the accused <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Umashankar @ Bhavani at Exhibit P311, voluntary\r\nstatement of the accused Raghavendra @ Raghu marked\r\nat Exhibit P313, and further voluntary statement of the\r\naforesaid accused marked at Exhibit P313(a), voluntary\r\nstatement of the accused R. Shankar at Exhibit P314,\r\nfurther voluntary statement of the accused\r\nRaghavendra @ Raghu at Exhibit P314(a), voluntary\r\nstatement of Rangaswamy at Exhibit P.315, voluntary\r\nstatement of the accused Chandra at Exhibit P.316,\r\nvoluntary statement of accused Shankar at Exhibit\r\nP.317, voluntary statement of the accused C.\r\nGovendaraju at Exhibit P.318, voluntary statement of\r\nthe accused Jaheer at Exhibit P324, voluntary\r\nstatement of accused D. Loganath at Exhibit P331,\r\nStatement of Smt. Gowramma at Exhibit P.339. These\r\nare all voluntary statements which have been recorded\r\nby the I.O. during the course of investigation and based\r\nupon their voluntary statement, the mahazar has been\r\nconducted by the I.O. in the presence of panch </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">witnesses and so also spot mahazar was drawn in the\r\npresence of PW-1 / Uma Devi. Even though voluntary\r\nstatements have been recorded and investigation has\r\nbeen carried out by the I.O. relating to laying of the\r\ncharge-sheet against the accused and drew the seizure\r\nmahazar in their presence and in the presence of panch\r\nwitnesses and though evidence has been adduced by\r\nthe prosecution by subjecting to examination several\r\nwitnesses, we find no worthwhile evidence to connect\r\nthe accused with the crime. But the Trial Court has\r\nerroneously arrived at conviction by taking into\r\nconsideration the charge-sheet material, which is\r\ninadmissible in evidence unless there is credible\r\nevidence. But law is clear and also well-settled that in\r\norder to prove the case, the prosecution needs to\r\nadduce worthwhile evidence. However, in the instant\r\ncase, the prosecution has failed to bring any iota of\r\nworthwhile evidence to hold that appellants / Accused\r\nNos.1 to 12 guilty of the alleged offences and that they </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">are responsible for eliminating the deceased Lingaraju,\r\nan RTI Activist and the Editor of ‘Mahaprachanda’\r\nnewspaper.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>233. PWs 1 and 2 who are the star witnesses on\r\nthe part of the prosecution being the wife and son of the\r\ndeceased Lingaraju, have turned hostile and have not\r\nsupported the case of the prosecution. Even at a\r\ncursory glance of the evidence of PW-89 who provided a\r\nCD containing the sting operation conducted under the\r\nhead Yudha Khanda, it completely discloses that\r\nprimary evidence has not been produced. Except\r\nmarking Exhibit P357 being the CD which is a\r\nsecondary evidence which is inadmissible, PW-89 had\r\nnot disclosed the contents of the said CD in his\r\nexamination-in-chief and the Trial Court in its judgment\r\nhas also not disclosed the contents of the said CD. The\r\nfact that secondary evidence being inadmissible in law\r\nhas been completely ignored by the Trial Court to arrive <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">at an erroneous conclusion by rendering conviction\r\nagainst accused persons.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>234. Though the prosecution has subjected to\r\nexamination several witnesses such as PW-1 to PW-90\r\ninclusive of official witnesses, but several witnesses\r\nhave given a go-by to the versions of their statements\r\nand they have been examined as PW-1, 2, 4 to 12, 15 to\r\n17, 21, 22, 28 to 44, 47 to 49, 55, 56, 59, 62, 63, 68,\r\n82, 83, 85 and 86. Whereas, at a cursory glance of the\r\nevidence of these witnesses, none of the independent\r\nwitnesses have supported the case of the prosecution to\r\nincriminate any circumstances against the appellants /\r\naccused. In spite of that, the Trial Court has\r\nerroneously arrived at a conclusion to convict the\r\nappellants / accused for offences punishable under\r\nSection 109 read with Section 149 and Section 302 read\r\nwith Section 149 of the IPC, 1860 and so also for other\r\noffences for which charges were leveled against them.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>235. Out of ninety witnesses even though 44\r\nwitnesses have given their evidence on the part of\r\nprosecution, but all of them are official witnesses and\r\nnone of the evidence of those witnesses is directly\r\nincriminating against the appellants / accused.\r\nFurther, even though documentary evidence has been\r\nadduced, there are no clinching circumstances against\r\nthe appellants / accused in order to come to the\r\nconclusion that the accused had committed the murder\r\nof the deceased Lingaraju as narrated in the theory of\r\nthe prosecution.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>236. However, at a cursory glance of the evidence\r\nof the witnesses on the part of the prosecution and also\r\nin the totality of the circumstances of the case, we are of\r\nthe opinion that the prosecution has failed to establish\r\nthe guilt against the accused by facilitating positive,\r\ncogent and corroborative evidence to probabilise that\r\nthe accused and accused alone have committed the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">murder of the deceased Lingaraju being an RTI Activist\r\nas narrated in the complaint made by PW-1 / Uma Devi\r\nwho is none other than the wife of the deceased and\r\nalso being eye-witnesses to the case of the prosecution.\r\nWhen the case of the prosecution in entirety is found to\r\nbe doubtful and is full of inconsistencies and when\r\ndoubt arises in criminal justice delivery system, benefit\r\nof doubt shall always accrue in favour of the accused\r\npersons alone. In the instant case, the prosecution has\r\nfailed to establish the guilt of the accused persons by\r\nfacilitating worthwhile evidence. Consequently, the\r\naccused persons, namely appellants, deserve to be\r\nacquitted.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>These Criminal Appeals namely Crl.A.1068/2020,\r\nCrl.A.No.53/2021, Crl.A.No.54/2021 and\r\nCrl.A.No.118/2021 filed by the accused / appellants in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the respective appeals, are hereby allowed.\r\nConsequently, the judgment of conviction dated\r\n28.10.2020 and order of sentence dated 29.10.2020\r\nrendered by the LVIII Addl. City Civil and Sessions\r\nJudge (CCH-59), Bengaluru City, in S.C.No.428/2013 is\r\nhereby set-aside. Consequent upon setting aside the\r\nconviction judgment, Accused Nos.1 to 12 / appellants\r\nin the respective appeals are hereby acquitted of the\r\noffences for which they were held charge.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">However, Accused No.1 / Rangaswamy @ Ranga,\r\nAccused No.2 / R. Shankar, Accused No.3 /\r\nRaghavendra @ Raghu, Accused No.4 / Chandra,\r\nAccused No.5 / Shankar @ Gunda, Accused No.6 /\r\nUmashankara @ Bhavani, Accused No.7 / Velu,\r\nAccused No.9 / Loganatha, Accused No.10 / Jaheer,\r\nAccused No.11 / Suresh @ Suri @ Surya are in\r\nincarceration from the date of their arrest. Therefore,\r\nthe concerned Jail Authorities are directed to set </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Accused Nos.1 to 7 and 9 to 11 at liberty forthwith, if\r\nthey are not required in any other case. Ordered\r\naccordingly.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '66f5e669eba3c64d1c5609587faef3d5.jpeg', 'd04dea8141fb1b9790331b89bfb719a4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-11', 1, '', '', '2022-11-10 13:36:25', '2022-11-11 06:14:15');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2394, 'jsjNtTcYYh7FfFYUBzX9pljap', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'An independent suit filed by a borrower against a Bank which has applied for recovery of its loan against the plaintiff under the RDB Act, cannot be transferred and tried along with the application under the RDB Act by the DRT. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bank of Rajasthan Ltd Vs VCK Shares and Stock Broking Services Ltd.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8972-8973 of 2014 decided on 10 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sanjay Kishan Kaul, Justice Abhay S. Oka and Justice Vikram Nath.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The appellant bank, Bank of Rajasthan Ltd. (since amalgamated with\r\nICICI Bank Ltd.), sanctioned a term loan to the respondent company on\r\n28.06.1994 with a limit of Rs.1.50 crores at interest of 19.25% per annum,\r\nrepayable in twelve quarterly instalments. In order to secure the loan, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">guarantors including the respondent, inter alia offered title deeds of\r\nimmovable properties as security. By mutual agreement, a further credit\r\noverdraft facility was granted on 19.09.1995, up to a limit of Rs.5 crores.\r\nThis additional credit was secured by the deposit of shares, stocks, and\r\nsecurities of various companies. The respondent did not adhere to financial\r\ndiscipline, resulting in the appellant issuing a notice on 01.07.1997, calling\r\nupon the respondent to settle the term loan account and overdraft facility\r\naccount within three days of the receipt of the notice. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Since the respondent failed to make the payment, the appellant filed\r\nan application, being OA No.263 of 1997, for recovery of the amounts due\r\nunder Section 19 of the Recovery of Debts Due to Banks and Financial\r\nInstitutions Act, 1993 (hereinafter referred to as ‘RDB Act’) before the Debts\r\nRecovery Tribunal, Kolkata (hereinafter referred to as ‘the DRT’) on\r\n21.11.1997. The appellant sought a recovery certificate against the\r\nrespondent for Rs.8,62,41,973.36 including interest at the rate of 20.88% per\r\nannum.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The appellant, feeling aggrieved, proceeded to file an appeal before\r\nthe Debts Recovery Appellate Tribunal, Kolkata (hereinafter referred to as\r\n‘the DRAT’) with M.A. No.31 of 2003, which was dismissed vide an order\r\ndated 14.11.2003 opining that the appellant should have sold the shares in\r\n1996 and, thus was not entitled to claim interest. The appellant still not\r\nbeing satisfied moved C.O. No.2777 of 2003 under Article 227 of the\r\nConstitution of India before the Kolkata High Court on 17.11.2003 which\r\nwas, however, dismissed in default vide High Court order dated 11.02.2004\r\nbut restored later before a Single Judge vide order dated 16.01.2013. We are\r\ninformed that these proceedings also stand dismissed on 26.08.2019 and,\r\nthus, there appears to be a quietus to the extent of claim of the bank. The\r\nrespondent, in terms of the decree, has also received the amounts due to it\r\nand thus nothing survives qua that aspect.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>39. On a plain reading of the provisions, the conclusion reached was that\r\nSection 17 of the RDB Act bars the jurisdiction of the Civil Court only in\r\nrespect of applications filed by the bank or financial institution. This\r\nprovision did not bar the jurisdiction of the Civil Court to try a suit filed by\r\nthe borrower. There was also an absence of provisions in the Act for transfer\r\nof suits and proceedings except Section 31, which relates to pending suit\r\nproceedings by a bank or financial institution for recovery of debt.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>40. It was noticed that the significant aspect of Sections 17 and 18 of the\r\nRDB Act was that even after establishment of the DRT, no jurisdiction had\r\nbeen conferred on it to try independent suits or proceedings initiated by the\r\nborrower or others against banks/financial institutions. What has been\r\npermitted is only a cross-action in the form of a counterclaim by a defendant\r\nin the pending application to facilitate a unified proceeding. The most\r\nsignificant aspect considered in this behalf is set out in para 17 extracted\r\nabove - that a counterclaim in a bank’s application before the DRT was not <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the only remedy, but an option available to the defendant borrower. The\r\nborrower was not precluded from filing a separate suit or proceeding before\r\na Civil Court or other appropriate forum. Not only that, even the bank, in\r\nwhose application a counterclaim is made, has the option to apply to the\r\nDRT to exclude the counterclaim of the defendant while considering its\r\napplication. If the DRT were to find in the bank’s favour, the defendant\r\nwould have to approach the Civil Court in respect of such excluded\r\ncounterclaim, as the DRT does not have jurisdiction to try an independent\r\nclaim against the bank/financial institution.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">41. The question thus arises as to whether the view expressed in Indian\r\nBank (supra) is the correct legal proposition in view of certain earlier\r\njudgments as well as latter judgments. We may however notice that the\r\nearlier judgment in the case of Abhijit Tea Co. Pvt. Ltd. (supra), where an\r\nindependent suit of a defendant was deemed to be a counterclaim and\r\ntransferred to the DRT, was considered and differentiated in the Indian\r\nBank case (supra). Although both were judgments of Coordinate Benches of\r\nthis Court, Indian Bank’s case (supra) opined that the transfer would only\r\nbe possible if the subject-matter of the two suits was inextricably connected\r\nand where both parties consented to such transfer.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">44. Now, if we turn to the objective of the RDB Act read with the scheme\r\nand provisions thereof; it is abundantly clear that a summary remedy is\r\nprovided in respect of claims of banks and financial institutions so that\r\nrecovery of the same may not be impeded by the elaborate procedure of the\r\nCode. The defendant has a right to defend the claim and file a counterclaim\r\nin view of sub-Sections (6) and (8) of Section 19 of the RDB Act. In case of\r\npending proceedings to be transferred to the DRT, Section 31 of the RDB\r\nAct took care of the issue of mere transfer of the Bank’s claim, albeit\r\nwithout transfer of the counterclaim. Thus, if the debtor desires to institute a\r\ncounterclaim, that can be filed before the DRT and will be tried along with </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the case. However, it is subject to a caveat that the bank may move for\r\nsegregation of that counterclaim to be relegated to a proceeding before a\r\nCivil Court under Section 19(11) of the RDB Act, though such\r\ndetermination is to take place along with the determination of the claim for\r\nrecovery of debt.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>45. We are thus of the view that there is no provision in the RDB Act by\r\nwhich the remedy of a civil suit by a defendant in a claim by the bank is\r\nousted, but it is the matter of choice of that defendant. Such a defendant may\r\nfile a counterclaim, or may be desirous of availing of the more strenuous\r\nprocedure established under the Code, and that is a choice which he takes\r\nwith the consequences thereof.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>48. We now draw our attention to Chapter 5 of the RDB Act, which deals\r\nwith recovery of debt determined by the DRT. Section 25 of the RDB Act\r\nprescribes the mode of recovery of debts, which takes place pursuant to a\r\ncertificate issued under sub-Section (7) of Section 19 to recover the amount\r\nof debt specified in the certificate by any of the modes specified therein.\r\nThe expanse of the reliefs the defendant may claim in the suit proceeding\r\ncan certainly go beyond mere adjustments of the amounts of claim, for\r\nwhich the DRT would not have any power.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>51. Now coming to the question whether consent is required for the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">transfer of a suit. We do believe that once we have opined that there is no\r\npower of transfer in the Civil Court, the consent or absence of it is not\r\nsomething which would lend such power to the Civil Court. The option\r\nbefore the defendant, who has instituted the suit, is clear - either he could\r\nfile a counterclaim before the DRT or he could institute separate civil\r\nproceedings.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>52. We however have a word of caution keeping in mind the nature of\r\npowers exercised by the DRT and the objective of its creation. The\r\ninterpretations in Abhijit Tea Co. and Ranjan Chemicals (supra), seeking to\r\ngive power of transfer to the Civil Court, whether by consent or otherwise,\r\nwere apparently predicated on an apprehension that a defendant may launch\r\na suit before the Civil Court in order to delay the proceedings before the\r\nDRT.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">53. We certainly would not like that the process envisaged under the RDB\r\nAct be impeded in any manner by filing of a separate suit if a defendant\r\nchooses to do so. A claim petition before the DRT has to proceed in a\r\nparticular manner and would so proceed. There can be no question of stay\r\nof those proceedings by way of a civil proceeding instituted by a defendant </span><span style=\"font-size: 12pt;\">before the Civil Court. The suit would take its own course while a petition\r\nbefore the DRT would take its own course. We appreciate that this may be in\r\nthe nature of parallel proceedings but then it is the defendant’s own option.\r\nWe see no problem with the same as long as the objective of having\r\nexpeditious disposal of the claim before the DRT under the RDB Act is not\r\nimpeded by filing a civil suit. Thus, it is not open to a defendant, who may\r\nhave taken recourse to the Civil Court, to seek a stay on the decision of the\r\nDRT awaiting the verdict of his suit before the Civil Court as it is a matter of\r\nhis choice.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>54. We thus make it abundantly clear that in case of such an option\r\nexercised by the defendant who filed an independent suit, whatever be the\r\nnature of reliefs, the claim petition under the RDB Act would continue to\r\nproceed expeditiously in terms of the procedure established therein to come\r\nto a conclusion whether a debt is due to a bank and/or financial institution\r\nand whether a recovery certificate ought to be issued in that behalf. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>56. In view of the discussion aforesaid, the questions framed above are to\r\nbe answered as under:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(c) Is the jurisdiction of a Civil Court to try a suit filed by a borrower\r\nagainst a Bank or Financial Institution ousted by virtue of the scheme\r\nof the RDB Act in relation to the proceedings for recovery of debt by\r\na Bank or Financial Institution?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\nThe aforesaid question ought to be answered first and is answered in\r\nthe negative.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n(a) Whether an independent suit filed by a borrower against a Bank or\r\nFinancial Institution, which has applied for recovery of its loan\r\nagainst the plaintiff under the RDB Act, is liable to be transferred and\r\ntried along with the application under the RDB Act by the DRT?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the absence of any such power existing in the Civil Court, an\r\nindependent suit filed by the borrower against the bank or financial\r\ninstitution cannot be transferred to be tried along with application\r\nunder the RDB Act, as it is a matter of option of the defendant in the\r\nclaim under the RDB Act. However, the proceedings under the RDB<span style=\"font-size: 12pt;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Act will not be impeded in any manner by filing of a separate suit\r\nbefore the Civil Court.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(b) If the answer is in the affirmative, can such transfer be ordered by\r\na court only with the consent of the plaintiff?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Since there is no such power with the Civil Court, there is no question\r\nof transfer of the suit whether by consent or otherwise. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>58. Now coming to the factual scenario of the case. The fact is that the\r\nproceedings under the RDB Act in any case have reached a culmination with\r\nsatisfaction of the claim and, thus, no proceedings instituted by the appellant\r\nare pending before the DRT. As for the suit, there is no question of a\r\ncounterclaim or a transfer or any other manner other than trial of the suit\r\ninstituted by the respondent. In fact, some part of the claim of the bank was\r\nnot even allowed and some adjustments were directed to be made. Even\r\nthereafter so far as any other claims of the respondent are concerned, the\r\nDRT in terms of the order dated 19.05.2003 permitted the respondent to\r\npursue the remedy in accordance with law - which can only mean the civil\r\nproceedings. Thus, the suit is liable to proceed accordingly.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>59. The civil appeals are accordingly dismissed leaving the parties to bear\r\ntheir own costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n60. The judgments in Abhijit Tea Co. (supra) and Ranjan Chemicals Ltd.\r\n(supra) are held not to be laying down the correct legal proposition. The\r\njudgments in Indian Bank (supra) and Nahar Industrial Enterprises\r\n(supra) are affirmed except to the extent that they allow the transfer of a suit\r\nfrom the Civil Court to the DRT.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9b84ec46b2211166d9ae68b702197e46.jpeg', 'a7675bfe157a698febab62fd09c28255.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-14', 1, '', '', '2022-11-11 13:18:31', '2022-11-14 13:49:26'),
(2395, 'ZrVs40UPuwavAsVJcYLmBkkSS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Market value of a property in case of a public auction monitored by the court is the value accepted by the Court. Registering authority cannot fix different market value. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Registrar of Assurances and another Vs ASL Vyapar Private Ltd and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8281 of 2022 decided on 10 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b>Justice Sanjay Kishan Kaul, Justice Abhay S. Oka and Justice Vikram Nath</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b>2. In Re the Partition Matter:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b>In a Partition Suit being Extraordinary\r\nSuit No. 32 of 1987, Ld. Single Judge passed an order dated 15.09.1987\r\nfor the sale of Premises No. 20 to 20/14 (except 20/10) Chetla Flat Road,\r\nKolkata- 700027 (“the land”), measuring 41 cottahs and 21 chittacks, i.e.\r\napproximately 2800 square metres. On 08.03.2006, the Joint Receivers\r\nappointed by the Court issued an advertisement in The Telegraph, a\r\nleading daily newspaper for sale of the land. At the auction, several\r\nparties participated, and the offer made by one Priya Dutta at the rate of\r\nRs.1,88,500 per cottah was the highest. However, she did not pay the\r\nentire earnest money which was stipulated at the rate of 10% of the bid\r\namount. Sati Pvt. Ltd. (R1 in S.L.P.(C) 22197 of 2010) also offered to\r\nmatch the bid amount Rs.1,88,500 and to pay the entire earnest money\r\nwithin 3 days. The court directed default clauses in case of failure to pay <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the earnest money or consideration amount, such as, if Sati Pvt. Ltd. did\r\nnot pay the earnest money within 3 days, the joint receivers could\r\nproceed to convey the property to the next highest bidder whose bid was\r\nfor Rs.1,88,000 per cottah.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b>5. In Re the Company matter: By an order dated 21.07.2004 of the\r\nLd. Single Judge, M/s. Kayan Udyog Ltd. was ordered to be wound up\r\nand the Official Liquidator was directed to take the necessary steps. The\r\nOfficial Liquidator published an advertisement on 12.05.2006 in daily\r\nnewspapers inviting offers for purchase of assets and properties of the\r\ncompany on “as is where is and whatever there is basis” with a Reserve\r\nPrice of Rs.1.20 crores and the highest offer received was Rs.75,00,000.\r\nThe Company Court directed revision of the Reserve Price and to issue a\r\nfresh advertisement. In the second advertisement dated 15.09.2006, the\r\nReserve Price was fixed at Rs. 1 crore and the highest offer received was\r\nRs.86,00,000 which was subsequently enhanced to Rs. 87,00,000 when\r\nthe auction was held in the Company Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b>6. Vide order dated 08.09.2006, the Company Court confirmed the\r\nsale in favour of ASL Pvt. Ltd. at Rs.87,00,000 subject to certain\r\nconditions of payment within stipulated time periods. On payment of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">entire consideration, the Official Liquidator executed the Conveyance\r\nDeed on 07.05.2008 and presented the same before the Registrar of\r\nAssurance, Calcutta for registration. On 06.08.2008, the Additional\r\nRegistrar of Assurance-II issued a Demand Notice to ASL Pvt. Ltd.\r\ninforming that the market value of the property was assessed at Rs.1.70\r\ncrores and ASL Pvt. Ltd. had to pay the deficit Stamp Duty of\r\nRs.5,86,000 as well as deficit Registration Fee of Rs.92,125. Aggrieved,\r\nASL Pvt. Ltd. filed the writ petition challenging the notice. Ld. Single\r\nJudge referred the question to a larger bench.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b>22. On the conspectus of the matter, we have not the slightest\r\nhesitation in upholding the view that the provision of Section 47A of the\r\nAct cannot be said to have any application to a public auction carried out\r\nthrough court process/receiver as that is the most transparent manner of\r\nobtaining the correct market value of the property</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\">25. We may only note that this Court in P. Laxmi Devi </span><span style=\"font-size: 12pt;\">case has\r\nopined the purpose behind bringing into force Section 47A in the Andhra\r\nPradesh State, i.e., in case of large scale under-valuation of the real value\r\nof property in the sale deed, the Government is defrauded of a proper\r\nrevenue. It was to take care of the absence of any provision in the\r\noriginal Stamp Act empowering revenue authority to make an inquiry\r\nabout the value of the conveyed property, that the Amendment was\r\nbrought forth so that the revenue did not suffer. The judgment in V.N.\r\nDevadoss case albeit in respect of Amendment in Tamil Nadu, opined\r\nthat it was not a routine procedure to be followed in respect of each and\r\nevery document of conveyance presented for registration without any\r\nevidence to show a lack of bona fides of the parties. There has to be a\r\nwillful under-valuation of the subject of transfer with fraudulent intention\r\nto evade payment of proper stamp duty</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b>27. If we see in the factual context of the two scenarios before us in\r\nrespect of the two cases, the telling aspect in a partition case was the\r\nexistence of 98 tenants on a land at a monthly rent of Rs.8,000 for the\r\nentire land and 80 vendors occupying the land for hawking business\r\nduring day time. It is trite to say that the mere existence of tenancy\r\nresults in a considerable decline in the market value of the property as\r\nthey may have their statutory rights and even otherwise, the purchaser\r\nwould be acquiring the property hardly in an ideal scenario and would be\r\nleft with the burden to take legal processes for the eviction. In such a\r\nscenario, there is actually a great depression in the market value of the\r\nproperty as even if a fair transaction without an auction takes place with\r\nfull reflection of price, the transacted value would be half or less of a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">vacant property. The tenancy aspect can hardly be said to be an aspect\r\nwhich could be ignored in the determination of the price.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>28. In the company matter, repeated auctions were held and it is in the\r\nnegotiated bid that the higher price was obtained. It was court monitored.\r\nThere would be no occasion for the court to accept the bid if it was not\r\nsatisfied with the process and the valuation. A correct value of a property\r\nis the one where there is a purchaser and a seller ad idem on the price (the\r\nactual price). The market value is, thus, the value which the highest\r\nbidder is willing to pay in the facts and prevailing circumstances and not\r\na notional price.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n29. We find hardly any rational in adopting the submissions on behalf\r\nof the appellant. The provisions are not dissimilar in the different\r\nenactments in its fundamentals; the “reason to believe” of a Registering\r\nOfficer has to be based on ground realities and not some whimsical\r\ndetermination; the Registering Authority cannot be permitted to doubt the\r\nliquidation proceedings as having some superior knowledge when it is a\r\ncourt monitored process where the court would take care of aspects such\r\nas cartelization; the Registering Authority can hardly be said to be the\r\nonly authority with knowledge of the subject to the exclusion of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">court; the independent determination by a Registering Officer would not\r\napply to a court sale but to a private transaction; the Stamp Act being a\r\nfiscal statute, while being interpreted strictly and literally would not\r\nimply some kind of absolute power.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>30. The decision of this Court in V.N. Devadoss case can hardly be\r\nsaid to be per incuriam. No doubt a court monitored auction is a forced\r\nsale, but then it has a competitive element of a public auction to realize\r\nthe best possible price. In many court cases, this is the process followed\r\nby the court to get the best obtainable price taking due precaution.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">31. We are, thus, of the view that this reference is required to be\r\nanswered by opining that in case of a public auction monitored by the\r\ncourt, the discretion would not be available to the Registering Authority\r\nunder Section 47A of the Act.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b>34. The reference is answered accordingly and the appeals stand\r\ndismissed albeit for the reasons set out herein. </b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1e4619015c5a7780feb271db86c4807b.jpeg', '39901361780fe030cbc9d757d0356015.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-14', 1, '', '', '2022-11-11 13:31:46', '2022-11-14 16:30:25'),
(2396, 'HhV2Qm8g1Pq19Hz7ialrXApV1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prevention of Food Adulteration Act, 1954. Variation in quality and misbranding need not be injurious to health to constitute offence under the Act. Karnataka High Court ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Syed Ahammed Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Revision Petition 1094 of 2018 decided on 8 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.B. Prabhakara Sastry.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">The present petitioner was accused in Criminal Case\r\nNo.1022/2008, in the Court of the Civil Judge and J.M.F.C., at\r\nSakaleshpura, (hereinafter for brevity referred to as “the Trial\r\nCourt”), who, by the judgment of conviction and order on\r\nsentence dated 20-06-2016 of the Trial Court, was convicted\r\nfor the offence punishable under Section 7(i), 7(ii) read with\r\nSection 16 of the Prevention of Food Adulteration Act, 1954 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(hereinafter for brevity referred to as “the Act”) and was\r\nsentenced accordingly.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. The summary of the case of the complainant as\r\nmentioned in his complaint filed under Section 200 of the Code\r\nof Criminal Procedure, 1973 (hereinafter for brevity referred to\r\nas \"Cr.P.C.\") was that, on the date 20-06-2008, the\r\ncomplainant, as a Food Inspector, while on his duty at Azad <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Road, Sakaleshpura, at about 5:00 p.m., visited a Shop by\r\nname M/s. Select Coffee Works and inspected the coffee seeds\r\nand its powder which were meant for public sale and noticed\r\nthat the accused had stored and was selling misbranded and\r\nadulterated coffee powder in his Shop. The complainant, who\r\nwas accompanied with his staff, purchased 600 grams of\r\ncoffee powder and subjected them for scientific analysis and\r\nthrough the report from the Analyst, confirmed that the coffee\r\npower was adulterated and misbranded as it was found that\r\nthe caffeine content in it was 0.4% and aqueous extract was\r\n55.0% and that it was also misbranded by virtue of nonprinting of batch number and \'best before\' on it. Hence, the\r\ncomplainant alleged that the accused has committed the\r\noffences punishable under Sections 7(i) and 7(ii) and 16(a)(i)\r\nof the Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. After hearing the learned counsels for the parties, the\r\nonly point that arise for my consideration in this revision\r\npetition is: </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>Whether the impugned judgments of conviction\r\nand order on sentence passed by the Trial Court and\r\nconfirmed by the Sessions Judge’s Court holding the\r\naccused (petitioner herein) guilty for the alleged\r\noffences punishable under Sections 7(i), 7(ii) read with\r\nSection 16(a)(i) of the Prevention of Food Adulteration\r\nAct, 1954, warrants any interference at the hands of this\r\nCourt?</i> </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. It is in the light of the above evidence, when the\r\nargument of the learned counsel for the petitioner is analysed,\r\nthe learned counsel for the petitioner does not deny the\r\ncollection of the commodity by the complainant (PW-1) in the\r\nform of purchase of 600 grams of coffee powder from the\r\ncoffee Shop of the accused and getting the same tested\r\nthrough PW-4 - Public Analyst and receiving the report as per\r\nEx.P-9. However, his contention is that, since the Public\r\nAnalyst and Chemical Examiner (PW-4) has not opined that\r\nthe commodity/article was injurious to health, the commodity\r\ntested cannot be called as adulterated.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. The learned counsel for the revision petitioner could\r\nnot able to convince the Court that the article in question\r\nwhich was the coffee powder was a primary food as defined <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under Section 2(xiia) of the Act. Thus, the article/commodity\r\nhas proved to be adulterated.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. Admittedly, the food article sold was not labelled in\r\naccordance with the requirement of the Act and the Rules\r\nmade there under, by mentioning its batch number, \'best\r\nbefore\' and \'Veg\' or \'Non-veg\' symbol, which is clearly an\r\noffence under Section 7(i) and 7(ii) punishable under Section\r\n16(1)(a) of the Act. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. In the instant case, the present petitioner/accused\r\nwas sentenced to undergo simple imprisonment for a period of\r\nsix months and to pay a fine of `1,000/-, in default of\r\npayment of fine, to undergo simple imprisonment for a period\r\nof fifteen days. Since in the light of the facts and\r\ncircumstances of the case, the sentence ordered by the Trial\r\nCourt and confirmed by the Sessions Judge’s Court being\r\nproportionate to the gravity of the proven guilt against the\r\naccused, I do not find any perversity, illegality or error in the\r\nimpugned judgments warranting any interference at the hands\r\nof this Court.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>[i] The Criminal Revision Petition stands\r\ndismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '185ab06c7b4bead2d091300692ce68f7.JPG', '340159eaf56b7ee6e1a236220f836d5c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-14', 1, '', '', '2022-11-11 13:55:00', '2022-11-14 07:22:26');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2397, 'bnioY5QSKbbDAbaMtVPv40pKb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Appointment of eminent Senior Advocate under the SC/ST (Prevention of Atrocities) Rules, 1995 is a special measure to safeguard the interest of the victims. The same cannot be questioned on technical grounds. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Cheriyan M C and others Vs State and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 13035 of 2021 decided on 2 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Natarajan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This writ petition is filed by the petitioners accused\r\nNos.1 to 4 being aggrieved with the order of the Deputy <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Commissioner, Chikkamagaluru, dated 03.04.2021\r\nwhereby the Deputy Commissioner has appointed the 4th\r\nrespondent-advocate as Special Prosecutor under Rule\r\n4(5) of the Scheduled Castes and Scheduled Tribes\r\n(Prevention of Atrocities) Rules, 1995 (hereinafter referred\r\nto as \'SC/ST Rules\') to conduct the special case on behalf\r\nof respondent No.2 in Special C.C. No.75/2020 pending on\r\nthe file of I Additional District and Sessions Judge,\r\nChikkamagaluru.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The case of the petitioners is that the petitioners\r\nare accused who are facing trial before the Special Court\r\nfor the offences punishable under Sections 3(1)(g),\r\n3(1)(p), 3(1)(2b), 3(1)(zc), 3(2)(v-a) of the Scheduled\r\nCastes and Scheduled Tribes (Prevention of Atrocities) Act\r\n(hereinafter referred to as \'SC/ST Act\') and Section 506 of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">IPC on the complaint filed by respondent No.2 before the\r\nJayapura police Station, Chikkamagaluru which is\r\nregistered in Crime No.36/2019. Respondent No.2\r\napproached the Deputy Commissioner of the district\r\nrequesting to appoint respondent No.4-advocate as a\r\nSpecial Prosecutor to prosecute the matter. Accordingly,\r\nthe Deputy Commissioner vide order dated 03.04.2021\r\nappointed respondent No.4 as Special Public Prosecutor,\r\nwhich is under challenge in this writ petition.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. It is not in dispute that the petitioners are the\r\naccused facing trial in Special C.C. No.75/2020 for the\r\noffences punishable under Sections 341, 504, 506, 334 of\r\nIPC and Section 3(1) of SC/ST Act. It is also an admitted\r\nfact that respondent No.2 is the defacto complainant, who\r\nhas lodged the complaint against the petitioners. It is also\r\nan admitted fact that that respondent No.4 was an\r\nadvocate of respondent No.2 in a civil matter and also that\r\nrespondent No.4 said to be appeared on behalf of\r\nrespondent No.2 in the bail matter when the notice was\r\nissued by the Court under Section 15(A)(5) of the SC/ST\r\n(POA) Act. It is also not in dispute that as per the Rules,\r\nthe Government, by notification, appoints the panel of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">advocates as Special Public Prosecutors and the\r\nGovernment also established Special Court for trying the\r\noffences under the provisions of Special Act and the SC/ST\r\nAct.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. I have also perused the judgment of High Court\r\nof Delhi relied on by the petitioners\' counsel in case of\r\nSUNIL GROVER VS. GOVERNMENT OF NCT OF DELHI\r\n(W.P. (C) No.729/2018 decided on 23.01.2019). I\r\nrespectfully disagree with the decision rendered by the\r\nHigh Court of Delhi in the aforesaid case. When the\r\nlegislature has framed the Special Acts and the Rules to\r\nsafeguard the interest of the victims/downtrodden people\r\nof the offences under the SC/ST Act, denying the\r\nopportunity of appointment of the Counsel is against the\r\nobject of the legislature in enacting Special Act and Rules.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 13. The legislature is fully aware about the atrocities\r\non the members of the SC/ST and have brought various\r\namendments in the Act to safeguard the interest of the\r\nmembers of the SC/ST category. Not only barring the\r\nCourt from granting any anticipatory bail under Section 18\r\nof the Act, but also for the bail proceedings, including any <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">other orders, to be passed, the trial Court shall give an\r\nopportunity to victims to oppose the applications and the\r\nState has established Special Court as well as appointed\r\nspecial advocates for prosecuting the matter. The SC/ST\r\nRules also empowers the Deputy Commissioner to appoint\r\nan eminent lawyer on behalf of the victim under clause (5)\r\nof Rule 4 of the SC/ST Rules. Therefore, it cannot be\r\nmisunderstood that appointing an advocate on the request\r\nof the victim is against the SC/ST Act and Rules and the\r\nGovernment is burdened by spending more money towards\r\nthe advocate fee, when the State itself wants to double\r\nsafeguard the interest of the members of the SC/ST\r\ncategory people by preventing them from the harassment\r\nas well as atrocities over the SC/ST members. It is not\r\nonly safeguarding interest but the legislature is very much\r\naware of the atrocity on the SC/ST people and in order to\r\ndefend their cases, it cannot be expected to appoint an\r\nordinary advocate who is put into few years of practice.\r\nThe SC/ST Rules provides appointment of an eminent\r\nsenior advocate and therefore, the downtrodden people </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">may be able to prosecute the matter against the upper\r\ncaste people effectively in the Court of law.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. In view of the decision rendered by the Hon\'ble\r\nSupreme Court in Ramanand Case (supra), when accused\r\nis entitled for an eminent advocate, the opportunity cannot\r\nbe denied to the victim of the crime, therefore, the\r\nappointment of respondent No.4 by the Deputy\r\nCommissioner as special Counsel for respondent No.2, is in\r\naccordance with law. Even respondent No.4 is a better\r\nadvocate to defend the case of respondent No.2 as he has\r\nalready appeared on behalf of respondent No.2 in the bail\r\nmatter of the petitioner. Therefore, the petition is devoid\r\nof merits and is liable to be dismissed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n Accordingly, the petition is dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '69e8561ed71ae53c4f2b1ccf0af3721c.JPG', '9eee4b169faec4d233e40ee66ef67d62.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-11', 1, '', '', '2022-11-11 17:56:03', '2022-11-14 05:05:57'),
(2398, 'A533peAuJVr0kqNaFGqtBlALP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land acquisition. Purpose for which acquisition is made is also a relevant factor for determining the market value. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">S. Shankaraiah and others Vs The Land Acquisition Officer and Revenue Divisional Officer and Revenue Divisional Officer.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 6821 of 2022 decided on 9 November 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice M.R. Shah and Justice Krishna Murari.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">1. Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 06.12.2013 passed by the High Court of Andhra Pradesh at Hyderabad in respective first appeals No. 1634 of 2001 and other allied appeals, the original land owners/claimants have preferred the present appeals seeking enhancement of the amount of compensation for the lands acquired.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">2. Large extent of land in different survey number in Adrial Village of Manthani Mandal, Karimnagar District came to be acquired by the State Government for the benefit of Singareni Collieries Company Limited. The lands were acquired for the purposes of excavation of coal. Notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act, 1894’) came to be issued on 13.05.1985. Declaration under Section 6 of the Act 1894 was issued on 31.07.1985. The Land Acquisition Officer passed the awards in the year 1987, fixing the market value for the acquired lands at Rs.7,000/­ per acre for Category 1 – Dry Lands under Cultivation and at Rs.6000/­ per acre for Category 2 – Dry Lands Left Fallow. Not satisfied with the compensation awarded by the Land Acquisition Officer, the land owners sought references under Section 18 of the Act, 1894. The land owners claimed the compensation at Rs.2 lakhs per acre. The Reference Court fixed the market value at Rs.30,000/­ per acre and Rs.50,000/­ per acre. The Reference Court also awarded the compensation @ Rs.15,000/­ per acre towards sub­soil mineral rights. By the impugned common judgment and order the High Court has determined and awarded the compensation @ Rs.80,000/­ per acre considering the market value of the land Rs.1,23,000/­ per acre and thereafter deducting 1/3rd . The High Court has also in addition awarded Rs.10,000/­ per acre as part of the market value for sub­soil rights.&nbsp;</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">2.2 At the outset, it is required to be noted that against the very impugned common judgment and order the beneficiary – Singareni Collieries Company Limited approached this Court by way of special leave petitions which have been dismissed. The review applications are also dismissed. Therefore, the short question which is posed for consideration before this Court is whether the amount of compensation determined / awarded by the High Court is required to be enhanced in the appeals preferred by the original claimants/land owners?</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">6. By the impugned common judgment and order the High Court has determined and awarded Rs.80,000/­ per acre. The High Court has also granted/awarded Rs.10,000/­ for sub­soil rights on account of coal deposits. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court, the original claimants/land owners have preferred the present appeals seeking enhancement of the amount of compensation.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">6.3. Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand and when the acquisition is solely for the purpose of excavation of coal and the entire land is acquired on the basis of the estimates of the coal reserve identified and the entire land is to be mined and used and no further developmental activity is required, we are of the opinion that in the facts and circumstances of the case, the High Court has erred in deducting 1/3rd towards the developmental activities. The additional amount awarded by the High Court at Rs.10,000/­ per acre on account of coal deposits is not required to be interfered with more particularly when the same has been confirmed by this Court in as much as the appeals preferred by the respondents have been dismissed by this Court.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">7. In view of the above and for the reason stated above, present appeals succeed in part. It is held that the original claimants shall be entitled to the compensation for the lands acquired at Rs.1,23,000/­ per acre with other statutory benefits which may be available under the provisions of the Act, 1894. In addition, the original claimants shall also be entitled to Rs.10,000/­ per acre as awarded by the High Court on account of coal deposits.&nbsp;</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">The impugned common judgment and order passed by the High Court is hereby modified to the aforesaid extent.&nbsp;</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">Present appeals are partly allowed to the aforesaid extent. However, in the facts and circumstances of the case there shall be no order as to costs.</span></font></p>', '57153739c5027427ee06d4251852c37b.jpeg', '2a5728691d779bab3f206a5f6392b352.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-15', 1, '', '', '2022-11-15 11:54:50', '2022-11-15 12:22:54'),
(2400, 'QylbHj1fO7jWmQwBkhkEq9KtB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When agricultural land falling within local planning area is designated for residential purpose, the permission shall be deemed to have been granted subject to payment of fine prescribed under the Karnataka Land Revenue Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Junaid Imtiyaz Ahmed Samsi Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 104022 of 2022 decided on 17 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The subject land bearing R.S. No.82/*/18, measuring\r\n2 Guntas 3.25 Anna situated at Raynal village, Chebbi\r\nHobali, Taluk Hubballi, District Dharwad is designated for\r\nresidential purposes in the Master Plan published by the\r\nHubli Urban Development Authority. The petitioner in\r\nterms of Section 95 of Karnataka Land Revenue Act\r\nsubmitted an application with the respondent No.2 for\r\npermitting him to deposit the conversion fee as specified\r\nunder second proviso to Section 95 of the Karnataka Land\r\nRevenue Act. Respondent No.2 rejected the application\r\nstating that the adjacent lands have been notified for\r\nexpansion of Hubballi-Dharwad bypass road against which\r\nthe present petition is filed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">5. the second Proviso to Section 95 of the\r\nKarnataka Land Revenue Act, 1964 specifies that if an\r\nagricultural land falling within local planning area and if\r\nsuch lands are designated for the purpose for which it is\r\nsought to be converted, the permission, therefore, shall be\r\ndeemed to have been granted subject to payment of fine\r\nprescribed under Sub Section 7 of Section 95 of Karnataka\r\nLand Revenue Act. Hence, the petitioner is entitled for\r\nutilizing the subject land for residential purposes as\r\nspecified in the master plan subject to payment of\r\nconversion fee as specified under sub Section 7 of Section </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">95 Karnataka land Revenue Act, 1964.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> The Writ petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '63ae990566837ae67cd13f991d702ecd.jpeg', 'c8ce3c723af9d08aef0a7eda94f68963.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-17', 1, '', '', '2022-11-15 12:30:43', '2022-11-17 12:23:20'),
(2401, 'EzCAbhsqHl5ZTme6Fro91qFgy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Essential Commodities Act. Manager of a company cannot be prosecuted for substandard goods unless the manufacturer/company is arraigned as an accused. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Zuari Agro Chemicals Ltd Vs Raghunath M. Patil.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 102107 of 2022 decided on 21 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The respondent has filed a private complaint under\r\nSection 200 of Cr.P.C alleging that the petitioner is the\r\nGeneral Manager of Zuvari Agro Chemicals Limited and the\r\ncompany has manufacturers sub standard fertilizer. The\r\nlearned Magistrate took cognizance of the offence punishable\r\nunder Sections 3 and 7 of the Essential Commodities Act,\r\n1955 and also Clause 19 of the Fertilizer (Control) Order,\r\n1985. Taking exception to the same, this petition is filed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Perusal of the complaint discloses that the\r\nfertilizers seized by the respondent is alleged to be of\r\nsubstandard quality and manufactured by Zuvari Agro\r\nChemicals Limited. The petitioner-accused is an employee of\r\nthe said fertilizer company, however, the\r\nmanufacturer/company is not arraigned as an accused in the\r\ncomplaint.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Provisions of the Essential Commodities Act, 1955\r\nare applicable to contraventions made under the provisions\r\nof Fertilizer (Control) Order, 1985 as specified in Clause 2(a)\r\nof the Fertilizer (Control) Order, 1985. The manufacturer/\r\ncompany having not been arraigned as an accused, the\r\naccused No.2 cannot be held vicariously guilty of the\r\noffences, along with the company as specified under Section\r\n10 of Essential Commodities Act 1955. Hence, the complaint\r\nwithout arraigning the company as an accused is not\r\nmaintainable.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i) The criminal petition is allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7b4925c7366b22cc026752737df495bf.jpeg', 'f9f8652a8e0da3065b4d00e9afbf4837.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-18', 1, '', '', '2022-11-15 12:50:03', '2022-11-18 06:39:26'),
(2402, 'Jm2awB9MTxAnaKDho2RYYw99X', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Airline is responsible for deducting tax at source in respect of supplementary commission which an agent is paid on the difference between the actual fare and the net fare. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Singapore Airlines Ltd Vs C.I.T. Delhi.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6964-6965 of 2015 decided on 14 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Surya Kant and Justice M.M. Sundresh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. The question that arises for our consideration pertains to the interpretation of Section 194H of the Income Tax Act, 1961 (“IT Act”) as introduced by the Finance Act, 2001, with effect from 01.04.2000. The provision requires deduction of tax at source (“TDS”) at 10% plus surcharge from payments falling under the definition of “Commission” or “Brokerage” under the Section. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. This batch of Civil Appeals arises from a judgement passed on 13.04.2009 by the High Court of Delhi whereby the High Court allowed the appeal by the Respondents/Revenue and held that Appellants/Assessees were required to deduct TDS under Section 194H of the Income Tax Act, 1961 (“IT Act”), on the Supplementary Commission accrued to travel agents entrusted by the Appellants to sell airline tickets. As a consequence of the Assessees’ failure to carry out the subtraction of the requisite amount of TDS, they were declared “assessees in default” under Section 201 and would accordingly be subject to payment of interest and penalties under Sections 201(1A) and 271C of the IT Act</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16. The High Court reimposed the tag of “assessee in default” under Section 201 and the levy of interest on short fall of TDS under Section 201(1A) on the Assessees. The aggrieved Assessees are now before this Court in this batch of appeals.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19. The central point for our consideration lies in the interpretation of what amounts to a “Commission” under Section 194H of the IT Act. The Assessees and the Revenue emphasized upon the nature of the relationship between an airline and a travel agent under the framework of the PSA that governs their arrangement.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20. Explanation (i) of Section 194H highlights the nature of the legal relationship that exists between two entities for payments between them to qualify as a “commission”. Consequently, our endeavour must be to determine whether the travel agents were “acting on behalf of” the airlines during the process of selling flight tickets. As elaborated upon earlier, the Assessees do not dispute that a principal­agent relationship existed during the payment of the Standard Commission. The point on which the air carriers differ from the Revenue is the purported second part of the transaction i.e. when the tickets were sold to the customer and for which the travel agents earned certain amounts over and above the Net Fare set by the Assessees. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>45. The fact that the travel agent has discretion to set an Actual Fare which is above the Net Fare has no effect on the nature of the relationship between the parties. A contract of agency permits an agent to carry out acts on its own volition provided it does not contravene the purpose of the agency contract and the interests of the principal. The accretion of the Supplementary Commission to the travel agents is an accessory to the actual principal­agent relationship under the PSA. In such a commercial arrangement, the benefit gained by an agent is incidental to and has a reasonably close nexus with the responsibilities that were entrusted to it by the principal air carrier. Such incidental benefits or actions must come under the ambit of the relationship, subject to any express limitations articulated in the contract itself or under the Contract Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>49. In the facts before us, we find that Sections 215 and 216 of the Contract Act are of no assistance. We have already ascertained that the PSA does not explicitly address the issue of Supplementary Commission at all. Further, an agent acting of its own account does not, in principle, alter the nature of a contract of agency and only gives rise to the consequences mentioned under Sections 215 and 216 of the Contract Act if the conditions contained within them exist. We do not consider it helpful to dwell on this point. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>50. In any case, given that information regarding the Supplementary Commission was available to the airlines, we have no doubt that the airlines could not have absolved themselves of liabilities under the IT Act attached to the accrual of that additional portion of income by the agent. These amounts were incidental to the transaction by which the flight tickets were sold on behalf of the air carriers and was for their benefit. The old adage that a party to a contract cannot “both approbate and reprobate” is apt for this factual scenario</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>56. It appears to us that if the recipient of income on which TDS has not been deducted, even though it was liable to such deduction under the IT Act, has already included that amount in its income and paid taxes on the same, the Assessee can no longer be proceeded against for recovery of the short fall in TDS. However, it would be open to the Revenue to seek payment of interest under Section 201(1A) for the period between the date of default in deduction of TDS and the date on which the recipient actually paid income tax on the amount for which there had been a shortfall in such deduction. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>61. We find some parallels between the facts of the present case and the situation in Eli Lilly & Co. (Supra). The liability of an airline to deduct TDS on Supplementary Commission had admittedly not been adjudicated upon by this Court when the controversy first arose in AY 2001­02. While learned Counsel for the Revenue, Mr. Kumar, has notified us that various airlines were deducting TDS under Section 194H at that time, this does not necessarily mean that the position of law was settled. Rather, it appears to us that while one set of air carriers acted under the assumption that the Supplementary Commission would come within the ambit of the provisions of the IT Act, another set held the opposite view. The Assessees before us belong to the latter category. Furthermore, as we have highlighted earlier, there were contradictory pronouncements by different High Courts in the ensuing years which clearly highlights the genuine and bona fide legal conundrum that was raised by the prospect of Section 194H being applied to the Supplementary Commission. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>62. Hence, there is nothing on record to show that the Assessees have not fulfilled the criteria under Section 273B of the IT Act. Though we are not inclined to accept their contentions, there was clearly an arguable and “nascent” legal issue that required resolution by this Court and, hence, there was “reasonable cause” for the air carriers to have not deducted TDS at the relevant period. The logical deduction from this reasoning is that penalty proceedings against the airlines under Section 271C of the IT Act stand quashed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>63. Our conclusion in terms of the application of Section 194H of the IT Act to the Supplementary Commission amounts earned by the travel agent is unequivocally in favour of the Revenue. Section 194H is to be read with Section 182 of the Contract Act. If a relationship between two parties as culled out from their intentions as manifested in the terms of the contract between them indicate the existence of a principal­agent relationship as defined under Section 182 of the Contract Act, then the definition of “Commission” under Section 194H of the IT Act stands attracted and the requirement to deduct TDS arises. The realities of how the airline industry functioned during the period in question bolsters our conclusion that it was practical and feasible for the Assessees to utilize the information provided by the BSP and the payment machinery employed by the IATA to make a consolidated deduction of TDS from the Supplementary Commission to satisfy their mandatory duties under Chapter XVII­B of the IT Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>64. Having said this, in light of the consensus between the parties that the travel agents have already paid income tax on the Supplementary Commission, there can be no further recovery of the shortfall in TDS owed by the Assessees. However, interest may be levied under Section 201(1A) of the IT Act. As an epilogue to this aspect of the matter, the Assessing Officer is directed to compute the interest payable by the Assessees for the period from the date of default by them in terms of failure to deduct TDS, till the date of payment of income tax by the travel agents. It will be open to the Assessing Officer to look into any details that are necessary for completion of this exercise, including verification of whether tax was actually paid at all by the agents on the amounts from which TDS was supposed to be subtracted. Given that no documentary evidence was placed before us, we are conscious that there may be certain anomalies which the Assessing Officer is best positioned to iron out. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>65. In the eventuality that any of the agents have not yet paid taxes on the Supplementary Commission, the Revenue will be at liberty to proceed in accordance with law under the IT Act for recover of shortfall in TDS from the airlines. However, we limit the ability to levy penalties against the Assessees in light of Section 273B of the IT Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>66. Having concluded so, we hope that closure has been brought to a legal controversy that has persisted for two decades. While we reject the arguments of the Assessees on merits in terms of their liability under Section 194H of the IT Act, we hold in their favour on the count of the matter having been rendered revenue neutral due to the apparent payment of income taxes on the amounts in question by the travel agents. The Assessing Officer is directed to expeditiously complete the assignment of determining the interest payable in accordance with the guidelines laid down above, so as to bring a quietus to the litigation. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>68. Pending applications, if any, consequently stand disposed of.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '270fefa0fe70d9d6eb8d8d12b52892f3.jpeg', '0985aa6d9cfb64517ed03aded33001e1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-17', 1, '', '', '2022-11-15 13:31:00', '2022-11-17 06:58:06');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2403, 'nSEZgRsqqu1gJnuBTKCJnuIrr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'In case of termination of an individual employee/workman by a individual notice, a dispute can be raised by such individual workman in terms of Section 10(4-A) of the ID Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Stanzen Links (India) Ltd Vs H.V. Nagesha and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 6795 of 2020 decided on 4 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The petitioner is stated to have begun the business\r\non 12.04.1981 as a partnership firm manufacturing\r\nmotor core laminations using power presses catering\r\nmainly to customers manufacturing AC and DC\r\nMotors, Alternators and Generators. In the year\r\n1998, the petitioner entered into a joint venture with\r\nToyota Iron Works, Japan and began the supply of\r\nautomobile components to Toyota Kirloskar and\r\nother Tier 1 Toyota Group companies.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">5. The petitioner started undergoing losses in the year\r\n2012-13, which continued to increase over the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">passage of time i.e. 2013-14, 2014-15, 2015-16,\r\netc. On account of the workers not cooperating,\r\nseveral contracts entered into by the petitioner with\r\nits customers could not be performed and the\r\nmaterial delivered, which resulted in one of its major\r\ncustomers cancelling the contract and blacklisting the\r\npetitioner.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. On account of the proposed transfer in terms of sale\r\nagreement entered into between the petitioner and\r\nrespondent No.2, the services of employees,\r\nincluding respondent No.1 in each of the petitions <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">were terminated under Section 25FF of Industrial\r\nDisputes Act, 1947 [hereinafter referred to as ‘ID\r\nAct’] by way of various termination letters which\r\nhave been issued enclosing the details of the\r\namounts due as on that date which includes three\r\nmonths salary in lieu of notice, 15 days of salary for\r\nevery completed year of service, bonus for the year\r\n2015-16 with proportionate amount till 30.06.2016,\r\nsalary in lieu of unutilised leave till 30.06.2016,\r\ngratuity as per Gratuity Act, 1972.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The dispute filed by respondent No.1 and others\r\ncame up before the I Addl. Labour Court, Bangalore,\r\nunder Section 10(4) of ID Act. Pleadings being\r\ncomplete, evidence being led, the Labour court by its\r\norder dated 21.12.2019, allowed the dispute, partly\r\nordering the reinstatement of 42 employees and\r\npayment of 25% back wages. It is aggrieved by the\r\nsame that the petitioner is before this Court.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. The points that would arise for determination of this\r\ncourt are:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>1. Whether the termination of services of an\r\nemployee/workman by a individual notice\r\ncould be raised as a dispute before the\r\nLabour Court in terms of Section 10(4-A) of\r\nthe ID Act or merely because the services of\r\nnumerous workmen have been terminated,\r\nwould a industrial dispute have to be raised\r\nunder Section 10(1)(c) of the Industrial\r\nDisputes Act, 1947 which can only be\r\nconsidered by the Industrial Tribunal?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. What are the requirements for applicability\r\nof Section 25FF of the Industrial Dispute Act,\r\n1947?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n3. Are the requirements of Section 25FF of the\r\nIndustrial Dispute Act, 1947 complied with in\r\nthe present cases? <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. Does the order of the Labour Court suffer\r\nfrom any legal infirmity requiring this Court\r\nto intercede?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n5. What order?</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. Answer to point no.1: Whether the termination\r\nof an employee/workman by a individual notice\r\ncould be raised as a dispute before the Labour\r\nCourt in terms of Section 10(4-A) of the ID Act\r\nor merely because the services of numerous\r\nworkmen have been terminated, would a\r\nindustrial dispute have to be raised under\r\nSection 10(1)(c) of the Industrial Disputes Act,\r\n1947 which can only be considered by the\r\nIndustrial Tribunal?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17.6. A perusal of Section 2A would indicate that\r\nwhere any employer discharges, dismisses or\r\nretrenches or otherwise terminate the services\r\nof an individual workman, any difference or\r\ndispute between the workman and employer <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">shall be deemed to be an industrial dispute.\r\nThus, a dispute which will be referred under\r\nSection 10(4A) being covered with Section 2A\r\nthat disputes are individual in nature to a\r\nparticular workman.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">17.7. A perusal of Section 10(1) of ID Act would\r\nindicate that where the appropriate government\r\nis of the opinion that any industrial dispute\r\nexists or is apprehended, then in such an event\r\nthere would arise four different options. Firstly,\r\nthe same could be referred to a Board for\r\npromoting a settlement, secondly appropriate\r\ngovernment can refer any matter connected\r\nwith or relevant to the dispute to Court for\r\nenquiry, thirdly it should refer the dispute or\r\nany matter relating to that specified in Second\r\nSchedule to Labour Court. Fourthly, any dispute\r\nwhich comes within the Third Schedule, could\r\nbe referred to an Industrial Tribunal.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17.9. A perusal of Second and Third Schedule would\r\nindicate that these are matters which relate to\r\nworkman as a whole and are not relatable to a\r\nclaim of a particular workman. Thus, it is\r\nSection 10(4A) of the ID Act which will cater to\r\nindividual workman and not Section 10(1) or\r\n10(1-C) of the ID Act.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17.10. The dispute referred to under Section 10(1)\r\nrelatable to those specified under Second and\r\nThird Schedule being applicable to a large\r\nnumber of workman, it would be required that\r\nthe same be assessed and reference made\r\neither to the Labour Court or Industrial Tribunal <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as the case may be in terms of Section 10(1) of\r\nthe ID Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n17.11. Hence, I answer point No.1 by holding that\r\ntermination of an individual employee/workman\r\nby a individual notice, a dispute could be raised\r\nby such individual workman in terms of Section\r\n10(4-A) of the ID Act.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. ANSWER TO POINT NO.2: What are the\r\nrequirements for applicability of Section 25FF\r\nof the Industrial Dispute Act, 1947?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18.4. In the present case what has been executed is\r\nonly an agreement of sale and the execution of\r\nthe Sale Deed has been extended. The basic\r\nrequirement for the applicability of Section 25FF\r\nof the ID Act would be that there has to be\r\ntransfer of undertaking.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18.5. The transfer could either be by an agreement or\r\nby operation of law. The transfer of an <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">undertaking is not one which is required to be\r\ncompulsorily registered. It is only a sale of\r\nimmovable property which would be required to\r\nbe registered. That is the reason why under\r\nSub-section (1) to Section 25FF of ID Act the\r\nusage is transfer by way of agreement. Thus,\r\nan agreement by itself in my considered opinion\r\nwould satisfy the requirements of Section 25FF\r\nof ID Act.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18.6. Hence, I answer point No.2 by holding that the\r\nownership or management of an undertaking\r\ncan be transferred by an agreement and the\r\nsaid agreement is not required to be registered\r\nunder the Indian Registration Act, 1908.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. ANSWER TO POINT NO.3: Are the requirements\r\nof Section 25FF of the Industrial Dispute Act,\r\n1947 complied with in the present cases?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19.35. I am therefore of the considered opinion that\r\nwhen the termination of services is under\r\nSection 25FF of the ID Act, there is no question\r\nof requirement of misconduct on part of the\r\nworkmen or issuance of a charge sheet or\r\ndisciplinary enquiry, etc. The termination of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">services under Section 25FF is on account of\r\ntransfer of the undertaking simplicitor, there\r\nbeing no requirement of any enquiry against\r\nthe workmen.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>19.36. As aforesaid, the Labour Court has misapplied\r\nitself and confused itself by reading together\r\nSection 25FF, 25F, 25M, 25N and 25-O of ID\r\nAct. The Labour Court would be well advised to\r\ntreat all these issues differently and consider\r\nthe same separately unless there is a\r\nconnection which could be established by\r\ncogent evidence.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">19.37. Applying the principles laid down in\r\nAnakapalle Cooperative Agricultural &\r\nIndustrial Society’s1 case, the only right that\r\nthe workmen would get upon a transfer of\r\nundertaking in terms of Section 25FF of ID Act\r\nis the compensation which has been paid by the</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner. Therefore, I am of the considered\r\nopinion that the requirement of Section 25FF\r\nhave been complied with in the present facts\r\nand circumstances.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. ANSWER TO POINT NO.4: Does the order of the\r\nLabour Court suffer from any legal infirmity\r\nrequiring this Court to intercede?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20.1. While dealing with answer to point No.3, I have\r\nalso dealt with the legal infirmities in the\r\nreasoning of the Labour Court. As observed\r\nabove, the Labour Court has misapplied itself\r\nnot considered the relevant evidence/facts and\r\nhas passed an order which is not sustainable in\r\nlaw. As such, the said order is required to be\r\nquashed. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. ANSWER TO POINT NO.5: what order?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n21.1. The petitions are allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b5eea206185ae29e95154c2d1c2d45c3.JPG', '188600078f6fbdf62dd494295953e4db.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-17', 1, '', '', '2022-11-16 13:04:27', '2022-11-17 03:22:21'),
(2404, 'oj7yn0LdRCprpyiCyF64hiAVf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Concept of Court Complex in 21st Century has undergone a change”. Bombay High Court orders construction of modern High Court complex which will cater the need of the High Court for at least 100 years.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ahmad M. Abdi Vs State of Maharashtra and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Public Interest Litigation 57 of 2012 decided on 22 January 2019.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.S. Sonak and Justice A.S. Oka.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. A 138 years old building which was constructed to accommodate 5 or 6 Courts is still being used along with parallel High Court annex building though the sanctioned strength of the Judges has progressively increased. In the subsequent part of the judgment, we have referred to some figures of pendency which will indicate that as far as civil and criminal matters on the appellate side of the principal seat are concerned, between 1990 to June 2018, the pendency has doubled as a result of increase in filing. There is a manyfold increase in number of staff members as indicated in the subsequent part of the judgment. The same is the case with number of the members of the Bar practising in this Court.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. The prayer in this PIL, inter alia, is for issuing a writ of mandamus enjoining the State Government to provide a new building for this Court with fixtures, furniture and other infrastructure on priority basis. The second prayer is for appointing a High Power Committee consisting of all stakeholders for implementation of the project of new building. The petitioner has set out the amenities and facilities which are required to be provided in the new High Court complex.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">38. We may note that there is no specific case made out by the Bar Associations that a plot of land or constructed chambers should be provided to them free of cost. Even the interim order of this Court dated 9th August 2018 does not issue such a direction and the only direction issued is to consider the case for allotment of a suitable plot for construction of lawyers\' chambers in the vicinity of the proposed new High Court complex. We fail to understand the approach of the State Government of ignoring the fact that in the process of administration of justice, the Advocates discharge a public duty of highest utility. If the High Court complex is to be relocated, a provision will have to be made for construction of chambers for the Advocates in its close proximity. It is true that the order of the Apex Court in the case of All India Judges Association v. Union of India (supra) which we have quoted above was passed on 2nd August 2018 after the affidavit of Shri Jain was filed, but the order has come two months before the date of hearing of this PIL. The order lays emphasis on providing modern amenities to the litigants who are the consumer of justice and to the members of the Bar. The order emphasizes concept of modern Court complex of 21st Century. The decision of the State Government to allot only an area of 6.02 Hectare, the decision to deny allotment of plot for construction of lawyers\' </font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">chambers and now the decision to offer a private land at Pahadi Goregaon clearly show that the State Government has completely brushed aside and ignored the interests of lakhs of litigants who are litigating in this Court. The State Government will have to reconsider its decision of not allotting a plot of land for the chambers of the Advocates.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>42. The summary of some of our conclusions is as under: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i) Considering the increase in the strength of Judges of this Court, manyfold increase in the number of staff members and members of the Bar, and huge rise in institution and pendency of cases, it is necessary to construct a modern High Court complex which will cater the need of the High Court for at least 100 years more. Moreover, the concept of Court Complex in 21st Century has undergone a change. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii) As held by the Apex Court, the new High Court complex should be a modern 21st Century Court complex having all modern amenities for all stakeholders; </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iii) The views of the High Court administration on the location of new complex, its area, its design and required infrastructure shall have primacy; </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iv) The financial constraints or nonavailability of Government land in the city of Mumbai is no ground to deny allotment of a large and convenient plot of land for the new High Court complex. It is the obligation of the State Government to procure a suitable land, if necessary, by taking recourse to compulsory acquisition. It is the duty of the State Government to make a provision for the construction of the chambers for the Advocates near the new Court complex; </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(v) As far as the selection of the land for the new High Court complex is concerned, it should be easily accessible by convenient modes of public transport to the litigants coming from various Districts under the jurisdiction of the principle seat of this Court at Mumbai;<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(vi) As observed earlier, even if the High Court complex is shifted to new complex, the present historic heritage building will have to be preserved by all concerned; </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>43. We, therefore, propose to issue a writ of mandamus directing the State Government to identify and offer a suitable land in the city of Mumbai which is convenient for the litigants having sufficiently large area. There is no concrete offer made by the State Government to the High Court Administration till date. Before, making an offer, the State Government shall consider the issue of accessibility as held earlier. The offer will have to be made by the State Government within a period of three months from today by issuing a letter of offer to the High Court Administration. We must make it clear that for the time being, the State Government cannot transfer earmarked lands at Bandra (East) admeasuring 6.02 Hectare (earmarked for High Court complex) and 11.68 Hectare (earmarked for sale).<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>45. Hence, we dispose of this petition by passing the following order: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">(i) In view of the law laid down in this judgment and order and the findings recorded therein, the State Government shall take </font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">appropriate decision of offering a large and convenient plot of land for the construction of High Court complex. While doing so, the State Government shall also consider whether additional area of 11.68 Hectare (earmarked for sale) in addition to the earmarked area of 6.02 Hectare at Bandra (East) can be offered. The State Government shall take appropriate decision within a period of six months from today which shall be immediately communicated to the High Court Administration. Till the date of the communication of the decision to the High Court and for a period of three months from that date, the State Government shall not transfer or encumber the aforesaid plots at Bandra (East) admeasuring 6.02 Hectare (earmarked for High Court complex) and 11.68 Hectare (earmarked for sale) respectively; </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>(ii) The State Government shall reconsider its decision of not allotting a plot for the Advocates\' chambers and shall consider whether a plot of land can be allotted for that purpose as per the demand of the three Bar Associations and in terms of interim order of this Court. The said decision shall be also taken within three months from today which shall be immediately communicated to the High Court administration. Thereafter, the High Court Administration shall take appropriate decision on the said proposal of the State Government ;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iii) Needless to add that if the proposal of the State Government is approved by the High Court Administration, necessary and adequate funds shall be provided to the High Court Administration for construction of Court Complex, for development of the land and for providing infrastructure; </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iv) Rule is made partly absolute on the above terms;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '43f1a1c335591d58cacaf9ef608460ae.jpeg', '110792dbf4e39638b35bf6f1115e170c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-17', 1, '', '', '2022-11-16 13:31:18', '2022-11-17 10:37:40'),
(2405, 'jB1MkIbYmJg8e83n2gJBzmDBp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Power of cancellation of bail cannot be approached as if of disciplinary proceedings against the accused. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bhuri Bai Vs The State of Madya Pradesh.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1972 of 2022 decided o 11 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dinesh Maheshwari and Justice Sudhanshu Dhulia.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. This appeal is directed against the judgment and\r\norder dated 10.02.2022, as passed by the High Court of\r\nMadhya Pradesh at Gwalior Bench in M.Cr.C. No. 46653/2021,\r\nthat was registered under Section 439(2) of the Code of\r\nCriminal Procedure, 1973 (‘CrPC’), for suo motu powers\r\nexercised by the High Court in its order dated 07.09.2021\r\npassed in M.Cr.C. No. 41406/2021. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Briefly put, the relevant background aspects of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">matter are as follows:</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The appellant is one of the accused persons in the\r\ncase arising from FIR No. 96/2020 for offences under\r\nSections 304B, 498A read with Section 34 of the Indian\r\nPenal Code, 1860 (‘IPC’) and Sections 3/4 of the Dowry\r\nProhibition Act, 1961. The accusations have been that the\r\ndeceased, who was married to the son of the appellant, was\r\nbeing subjected to physical and mental tortures for demand\r\nof dowry after the marriage and ultimately, on 11.09.2020,\r\nshe died by hanging under unusual circumstances; and a\r\nsuicide note in the handwriting of the deceased was found,\r\nimplicating her husband and in-laws, including the present\r\nappellant–the mother-in-law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. In relation to this case, husband of the appellant\r\nwas also arrested, who was granted regular bail on\r\n23.11.2020. However, the appellant surrendered only on\r\n16.07.2021; and a supplementary chargesheet was also filed\r\non 02.08.2021.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Thereafter, the regular bail application (No.\r\n357/2021) moved on behalf of the appellant was considered\r\nby the First Additional Sessions Judge, Jaura, District\r\nMorena and was allowed on 05.08.2021, essentially with\r\nreference to the facts pertaining to the grant of prearrest bail to two of the co-accused persons and regular\r\nbail to the other co-accused–husband of the appellant.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. In this matter, where daughter-in-law of the\r\nappellant died by committing suicide and with reference to\r\nthe material on record, charge-sheet for serious offence\r\nincluding Section 304B IPC has been filed, unavailability\r\nof the appellant to all the processes of law until\r\n16.07.2021 (the date of surrender/arrest) cannot be\r\nappreciated. However, in the peculiar circumstances of the\r\ncase, particularly for the fact that the deceased left a\r\nminor child and none except the appellant was available in\r\nthe family to look after the child, it is equally difficult\r\nto say that the appellant has been an absconder or a\r\nfugitive who had been intentionally running away from the\r\nprocess of law. The challenge thrown at the relevant time\r\nby Covid-19 pandemic also remains a factor which cannot be\r\nignored altogether. Further, the fact that the appellant is\r\na lady in 55 years of age cannot be ignored, particularly <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">when examining the question of grant of regular bail.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. In our view, even if the High Court had its\r\nreservations in the order so passed by the Trial Court\r\ngranting bail to the appellant, particularly when the fact\r\nof long absence of the appellant was not adverted to, it\r\nwas yet required to be taken note of by the High Court that\r\nthe power being exercised was not that of a regular appeal\r\nor revision but, it was that of cancellation of bail under\r\nSection 439(2) CrPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. It remains trite that normally, very cogent and\r\noverwhelming circumstances or grounds are required to\r\ncancel the bail already granted. Ordinarily, unless a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">strong case based on any supervening event is made out, an\r\norder granting bail is not to be lightly interfered with\r\nunder Section 439(2) CrPC.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. It had not been the case of the prosecution that the\r\nappellant had misused the liberty or had comported herself\r\nin any manner in violation of the conditions imposed on\r\nher. We are impelled to observe that power of cancellation\r\nof bail should be exercised with extreme care and\r\ncircumspection; and such cancellation cannot be ordered\r\nmerely for any perceived indiscipline on the part of the\r\naccused before granting bail. In other words, the powers of\r\ncancellation of bail cannot be approached as if of\r\ndisciplinary proceedings against the accused and in fact,\r\nin a case where bail has already been granted, its\r\nupsetting under Section 439(2) CrPC is envisaged only in\r\nsuch cases where the liberty of the accused is going to be\r\ncounteracting the requirements of a proper trial of the\r\ncriminal case. In the matter of the present nature, in our\r\nview, over-expansion of the issue was not required only for\r\none reason that a particular factor was not stated by the\r\nTrial Court in its order granting bail.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. In totality of the circumstances, we are unable to\r\napprove the order impugned setting aside the bail granted\r\nto the appellant.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. Accordingly, and in view of the above, this appeal\r\nsucceeds and is allowed; </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. All pending applications stand disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd0efbd2e977483549a781a54b7a7053f.jpeg', '4ff03572982de8ee282aea0ab4eefafe.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-17', 1, '', '', '2022-11-16 14:47:04', '2022-11-17 08:19:33');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2406, 'vkb7AAxWVvc9Zu9TF6noQz9Qe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Wrong description of property in sale notice will not invalidate the sale under the SARFAESI Act, 2002 unless prejudice is caused to the borrower. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Varimadugu Obi Reddy Vs B. Sreenivasulu and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8470 of 2022 decided on 16 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ajay Rastogi and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The instant appeal has been preferred at the instance of the auction purchaser (appellant herein) assailing the impugned judgment and order dated 20th November, 2019 passed by the High Court for the State of Telangana at Hyderabad setting aside the eauction sale held by the respondent Bank (secured creditor) under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter being referred to as the “SARFAESI Act, 2002”)</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. The relevant facts in brief to appreciate the controversy are that respondent nos.1­3 have availed three loan facilities vide Mortgage Loan of Rs.10 lakhs, Cash Credit Loan of Rs.8 lakhs and Car Loan of Rs.8 lakhs from the respondent Bank (secured creditor) after executing necessary security documents. Respondent No.4 herein stood as guarantor and created equitable mortgage over her immovable property as security for due repayment of the said loan amount. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. After availing the above loan facilities, the respondent borrowers have committed default in repaying the outstanding loan amount and have also failed to pay the interest accrued to the loan accounts from time to time. Finally, the loan accounts have been classified as Non­Performing Assets (NPAs) on 30th September, 2012 and in furtherance, the respondent Bank initiated recovery proceedings under the provisions of the SARFAESI Act, 2002 and issued demand notice dated 15th November, 2012 calling upon the respondent borrowers/guarantor to repay and discharge the outstanding loan amount with interest and costs within 60 days. After following the procedure as contemplated under the provisions of the SARFAESI Act, 2002 and Rules made thereunder, on 14th February, 2013, the respondent Bank published a possession notice in the daily newspapers under Section 13(4) of the SARFAESI Act, 2002 and obtained the order from the District Collector on 23rd June, 2013 to take physical possession of the scheduled property from the respondent borrowers/ guarantor and hand over to the respondent Bank (secured creditor).</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12. The contentions were repelled by the Tribunal and the Tribunal dismissed the applications filed by the respondent borrowers. Although it was an appealable order before the Debts Recovery Appellate Tribunal, still the respondent borrowers approached the High Court under Article 226 of the Constitution and the Division Bench of the High Court reversed the findings returned by the Tribunal on the premise that there was an error in the description of the scheduled property in e­auction sale notice dated 25th February, 2015 and that was considered to be a serious infirmity in the process and cannot be sanctified and further held that since the appellant (auction purchaser) failed to deposit balance 75% of the bid amount within the stipulated time of 15 days which ought to have been deposited by him on or before 10th April, 2015, that admittedly deposited by him on 15th April, 2015, is in clear breach of Rule 9(4) of the Rules, 2002 and accordingly, set aside all the proceedings initiated from the stage of Section 13(2) of the SARFAESI Act, 2002 till the delivery of physical possession of the scheduled property to the auction purchaser (appellant) by the respondent Bank by an order dated 23rd November, 2018, which is the subject matter of challenge before us.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23. The indisputed facts which manifest from the record are that the respondent borrowers availed three loan facilities from the respondent Bank (secured creditor) to the tune of Rs.26 lakhs after executing necessary security documents. Respondent no.4 stood as guarantor and created equitable mortgage over her immovable property as security for due payment of the said loan amounts. The property is a residential building of 266 sq. yards of land.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>34. In the instant case, although the respondent borrowers initially approached the Debts Recovery Tribunal by filing an application under Section 17 of the SARFAESI Act, 2002, but the order of the Tribunal indeed was appealable under Section 18 of the Act subject to the compliance of condition of pre­deposit and without exhausting the statutory remedy of appeal, the respondent borrowers approached the High Court by filing the writ application under Article 226 of the Constitution. We deprecate such practice of entertaining the writ application by the High Court in exercise of jurisdiction under Article 226 of the Constitution without exhausting the alternative statutory remedy available under the law. This circuitous route appears to have been adopted to avoid the condition of pre­deposit contemplated under 2nd proviso to Section 18 of the Act 2002. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>35. The High Court under the impugned judgment has non­suited the present appellant (auction purchaser) on the premise that there is an error in the description of the door number of the property and instead of “12­3­39”, it was indicated as “12­3­393”, although there was no error in the description of the property rather the dimensions with measurement and boundaries were properly indicated of the mortgaged property and on the premise that Rule 9(4) of the Rules has not been followed by the appellants by depositing 75% of the bid amount which ought to have been deposited by 11th April, 2015, instead it was deposited on 15th April, 2015.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>42. In the instant case, although there was no written consent by all the three partners, namely, secured creditors, borrowers and auction purchaser, as being referred to by this Court in General Manager, Sri Siddeshwara Cooperative Bank Limited (supra), but this fact cannot be ruled out that in the instant case, the peculiar situation has come forward when the respondent borrowers in the first instance approached the Tribunal assailing the e­auction notice issued by the respondent Bank (secured creditor) and were able to secure an interim order from the Tribunal dated 26th March, 2015 permitting the auction proceedings to continue, subject to the condition that the borrower shall deposit Rs.6 lakhs directly with the respondent Bank within 15 days from the date of order, which admittedly expired on 9th April, 2015 and the respondent borrowers failed to deposit the aforesaid amount.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>44. In the given facts and circumstances, the four days’ delay which was caused in terms of the original auction notice, in no manner, would frustrate or annul the auction proceedings and the Debts Recovery Tribunal has rightly held that because in such state of flux, particularly when the bank/secured creditor requested the auction purchaser to wait for some time because the borrowers are negotiating with the bank in the light of interim order dated 26th March, 2015 of the Tribunal, delay in depositing 75% of the bid amount by four days in no manner would frustrate the rights of the parties inter se, more so, when the conduct of the borrowers in getting extension orders on two different occasions and still not depositing Rs.6 lakhs in terms of the order of the Tribunal would clearly reflect that the intention of the borrowers was only to frustrate the auction sale by one reason or the other, which they could not succeed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>45. In our considered view, the finding returned by the Tribunal was well reasoned and duly supported with the material on record and the interference made by the High Court under the impugned judgment while recording a finding that it was in breach of Rule 9(4) of the Rules, 2002 is not legally sustainable in law and deserves to be set aside. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>46. Before we finally conclude, it is brought to our notice that after sale of property under e­auction, the respondent Bank received a total sum of Rs.64,23,000/­ and after due adjustment of the three NPA accounts of the respondent borrowers with other ancillary charges, a balance sum of Rs.16,30,000/­ is lying with the respondent bank and the said amount has been deposited by the bank in FDRs and with accumulation of interest, the said amount has come to approx. Rs.18,80,000/­. We make it clear that the original sum of Rs.16,30,000/­ with interest yielded over the said amount upto date shall be transferred to the account of the borrower/guarantors, as the case may be, with their written consent as to in whose account the money is to be transferred. The bank shall transfer the money in the account of borrower/guarantor within eight weeks.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>47. Consequently, the appeal deserves to succeed and is accordingly allowed. The judgment impugned of the High Court dated 20th November, 2019 is hereby quashed and set aside with the aforesaid observations. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>48. There shall be no order as to costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>49. Pending application(s), if any, shall stand disposed of.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e667e59e365776c63a39be0c87fbc072.jpeg', '37c038a2e9cda11b4de3710ebca2ce3a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-21', 1, '', '', '2022-11-17 12:23:29', '2022-11-21 08:26:11'),
(2407, 'lLwDNNcXKAdzJbfk3waf784M8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Court order blocking the social media impinges on the right of expression guaranteed under the Constitution. Court can only order removal of the objectional content on the social media. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Supriya Shrinate Vs MRT Music ORS and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Commercial Appeal 460 of 2022 decided on 8 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice G. Narendar and Justice P.N. Desai.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The appellants have assailed the order passed by\r\nLXXXV Additional City Civil & Sessions Judge, Commercial\r\nDivision, Bangalore(CCH-86), on I.A. Nos. I to VI in\r\nCommercial Original Suit No.1594/2022 dated 07.11.2022\r\nwherein the trial Court issued a direction to respondent\r\nNo.2 (defendant No.4) to remove and take down the links\r\nfrom it’s platform and to block the social media handle of\r\nIndian National congress (@ INC India) and Bharat Jodo\r\nYatra (@ Bharat Jodo) on Twitter, on the ground of\r\nAppellants having infringed the copyright of the 1st\r\nRespondent/Plaintiff.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The plaintiff instituted a suit before the trial court\r\nwith a prayer to grant a relief of permanent injunction and\r\nalso mandatory injunction. The plaint pleadings in brief\r\nare that, the plaintiff is a registered partnership firm\r\nengaged in production, marketing, distribution and sale of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sound recordings and cinematography, sale of audio, CD,\r\nDVD, purchase of Audios and Videos and Film Digital rights\r\ntherein. That it is a reputed entity in the sound and music\r\nindustry. The plaintiff operates its business by use of its\r\ntrademark \"MRT MUSIC\". The repository of the plaintiff\r\nconsists of more than 20,000 songs which the plaintiff\r\nowns and control and not limited to copyright. The plaintiff\r\nhas acquired all the rights of sound recordings of the Block\r\nBuster film KGF- Chapter-2. Thereafter, the plaintiff has\r\nreleased the same through various channels and pen\r\ndrives.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. It is alleged by the plaintiff that there is a\r\ncopyright infringement by the defendants 1 to 3. It is\r\npleaded that during the Bharat Jodo Yatra, an initiative of\r\nthe Indian National Congress, certain video recording of\r\nthe Yatra and also the leader of the Yatra were shared by\r\nthe first defendant’s Twitter Handle as well as the Bharat\r\nJodo Twitter Handle. Each video twitter was posted with a\r\nbackground music. That in two videos, the background\r\nmusic is alleged to be similar to the sound track of the\r\nmovie titled as KGF Chapter- 2. It is alleged by the plaintiff <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that Indian National Congress social media Handle has\r\nused the alleged sound track in two videos and uploaded it\r\nto the Indian National Congress Twitter Handle and\r\ncirculated the said video in an alleged fraudulent manner in\r\norder to make a wrongful gain. It is alleged by the plaintiff\r\nthat the defendants are profiteering and their gains is\r\ncausing unlawful, unjust and irreparable loss to the\r\nplaintiff. The use of copyright work without authorisation\r\nand consent is willful and dishonest. Hence, the suit\r\npraying and seeking for injunction against infringement of\r\nit’s copyright.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. After hearing the learned Senior Counsels on\r\nboth sides, the following points arise for consideration of\r\nthis Court:-\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>1. Whether the Appeal is maintainable?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. Whether the trial court is justified in\r\ngranting ex-parte interim order in the\r\nnature of a mandatory injunction, without\r\nrecording any reasons;\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. Whether the Trial Court was justified in\r\ngranting ex-parte ad-interim injunction\r\nwithout recording reasons to demonstrate <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>that object of granting of ex-parte order of\r\nad-interim injunction could be defeated by\r\ndelay if the notice of interim application for\r\ninjunction is not dispensed as provided\r\nunder Order 39 Rule 3 of the CPC?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.1:-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. In view of the unambiguous provisions of\r\nSection 13(1A) of the Commercial Courts Act, the\r\nobservations of the learned Single Judge that the ex-parte\r\norders becomes appealable orders only when the appeal\r\nhas not been finally disposed of within 30 days can no\r\nmore said to be the law on the point. The right of the\r\nappeal having been vested in a person aggrieved, under\r\nthe above provision, and the finding have been rendered\r\nprior to amendment to the provisions of Section 13(1A) of\r\nthe Commercial Courts Act and in that view we disagree\r\nwith the findings of the learned Single Judge and hold the\r\nappeal to be maintainable in view of the provisions of\r\nSection 13(1A) of the Commercial Courts Act. We answer\r\npoint No.1 accordingly. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.2.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. In our opinion, the reliefs granted do not\r\nadvance the case of the plaintiff, that the reliefs are sought\r\nwith the intention of ensuring preservation of the material <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which would demonstrate infringement and as to how the\r\ndefendants were able to invade the copyrighted property of\r\nthe respondent No.1. That apart as held by the Hon’ble\r\nApex Court the Trial Court has not recorded the reasons for\r\ngranting an ex-parte mandatory injunction. There is\r\nabsolutely no discussion as to why such an ex-parte\r\nmandatory injunction should be granted. The Trial Court\r\nhas granted the relief for the mere asking.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">32. In our considered opinion, the issue has\r\nnarrowed down to the correctness of the order directing\r\nblocking of the social media, which in our prima-facie\r\nopinion, impinges on the right of expression guaranteed\r\nunder the Constitution. It also appears that the interim\r\nreliefs prayed are even more expansive and beyond the\r\nmain reliefs sought for in the suit itself. That if the handles\r\nare taken down or removed, nothing would be available\r\nrather no social media platform would be available to the\r\ndefendants to propagate about their party and activities. If\r\nviewed from this angle the balance of convenience tilts in\r\nfavour of the defendant. That apart, the infringement\r\ncomplained off is a 45 second audio/music set to have</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">been synchronized by defendants 1 to 3, with the video\r\nportraying the 3rd defendant. In our prima-facie opinion,\r\nnone of the three guidelines expounded by the Hon’ble\r\nApex Court are either complied with or get attracted in the\r\nfacts of the case. In our opinion, the loss, if any, could\r\nhave been compensated by awarding damages also.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.3:-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. The orders have been also challenged before the\r\nCourt on the ground that it is contrary to the law laid down\r\nand consistently followed by this Court, holding that the\r\nprovisions of Order XXXIX Rule 3 of the CPC are mandatory\r\nand not directory. The objection was on the ground that,\r\nthe Commercial Court while deeming it necessary to grant\r\nex-parte interim order has failed to appreciate Rule 3 of\r\nthe CPC and has not recorded reasons for dispensing with\r\nnotice, prior to considering the application under Order\r\nXXXIX Rule 1 and 2 CPC. Emphasis is laid on the Proviso\r\nto R.3, which mandates that reasons be recorded.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>38. Learned Senior Counsel for the appellant\r\nSri. Abhishek Manu Singhvi submitted that without\r\nprejudice to the appellant\'s contention, the appellant shall\r\nby noon tomorrow i.e., 09.11.2022, endeavour to remove\r\nthe allegedly offending material from its Twitter Handle and\r\nall other forms of social media and has no intention\r\nwhatsoever to use the same in future.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 39. The learned Senior Counsel for the Caveator\r\nfurther submitted that the appeal could be disposed of and\r\nthe matter could be remitted back for reconsideration by\r\nthe trial court in view of the challenge to the nature of\r\norder passed which is in the nature of mandatory\r\ninjunction which in our prima facie opinion virtually\r\nimpinges on the fundamental rights guaranteed under the\r\nConstitution of India.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 40. In view of the statement made by learned\r\nSenior Counsel Sri. Abhishek Manu Singhvi for the\r\nappellant that he would provide screen shots of their\r\nTwitter Handle and also such other media before the\r\noffending material is removed, in our considered opinion,  <span style=\"font-size: 12pt;\">the submissions of learned Senior Counsels for the\r\nappellant appears to be fair. In response, the learned\r\nsenior counsel appearing on behalf of the first respondent\r\nwould fairly submit that concessions be placed on record\r\nand matter be remitted back for consideration in\r\naccordance with law.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>41. Be that as it may, we are not delving deeper\r\ninto the issues. In view of the submissions recorded by us\r\nsupra and in view of the nature of the relief we grant. This\r\nCourt answers all the points for consideration against the\r\nfirst respondent and in favour of the Appellant. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 1rem; font-family: var(--bs-font-sans-serif);\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 1rem; font-family: var(--bs-font-sans-serif);\"><b> The appeal is allowed-in-part.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b90d6a4abdb4bcaa6f83ac5e38b52518.jpeg', '7a6d3b5203b9530c4df670d2dcac2cac.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-18', 1, '', '', '2022-11-17 13:11:58', '2022-11-18 03:22:48'),
(2408, '9t3EJ6ppG2BGSdBc2NUw3ZxkK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Principle that the tiller of the land should be conferred occupancy rights is not applicable to the lands held by the Ex-serviceman”. Karnataka High Court orders restoration of tenanted lands to Soldier. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nafeeza and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 3420 of 2013 decided on 16 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. FACTS IN BRIEF:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(a) The Petitioners ancestor Mr.Umar Beary was a\r\ntenant of the subject land that belonged to the ownership of\r\nfather of Ex-Serviceman, allegedly since 1940 or so. The\r\n4\r\nth respondent having retired from the defence service on\r\n31.07.1993 had applied on 28.06.1994 u/s.15(4) of the\r\nKarnataka Land Reforms Act, 1961 seeking resumption of\r\nthe land in question contending that during his defence\r\nservice, he had continued the tenancy created by his father.\r\nThis was preceded by a Notice dated 11.01.1990 calling <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">upon the petitioners to deliver back the subject land on or\r\nbefore 31.03.1992. Another Notice dated 27.09.1993\r\nfollowed prescribing 31.05.1994 as the cut-off date for\r\ngiving back the land. Petitioners did not yield to these\r\nnotices.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">(c) The Tahsildar accordingly had issued notice to\r\nboth the sides, who were represented by the lawyers; they\r\nhad also produced huge evidentiary material in support of\r\ntheir rival claim. Having considered the same, in the light\r\nof original records that were traced, the Tahsildar passed\r\nthe subject order directing resumption of land in favour of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Ex-Serviceman. The Assistant Commissioner negatived\r\npetitioners’ appeal against the same. That is how this writ\r\npetition has arisen.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. Having heard the learned counsel for the parties\r\nand having perused the petition papers and also the LCR,\r\nthis Court declines indulgence in the matter for the\r\nfollowing reasons:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(a) The 4th respondent had entered the Army\r\nService way back in the year 1967 and earned several\r\npromotions, the last being to the post of Lt.Colonel. He\r\nretired from the service on 31.07.1993. The father of\r\nPetitioner Nos. 13 to 20, namely Mr.Ibrahim Beary i.e., son\r\nof original tenant Mr.Umar Beary has admitted these facts\r\nin his deposition before the Land Reforms Appellate\r\nAuthority vide Exhibits P 40 & P 41. He has also admitted\r\nabout the creation of tenancy. Such a stand as well was\r\ntaken in their Statement of Objections filed resisting\r\nW.P.No.4275/1982 filed by the 4th respondent herein.\r\nVirtually, it is a case of estoppel in pais and therefore,\r\nPetitioners cannot be permitted to contend to the contrary, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">changing their stance now & then to suit to their advantage\r\nand to the disadvantage of the other side.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(d) The next contention of the petitioners that the\r\ncontinuation of the tenancy by the Ex-Serviceman has to be\r\nby a written instrument is not supported by the legal\r\nposition, namely the texts of Sections 5 & 15 of 1961 Act.\r\nSection 5(1) enacts an absolute embargo on leasing of\r\nagricultural land, and clause (a) of sub-section (2) carves\r\nout an exception to this when tenancy is created or\r\ncontinued by defence personnel. This sub-section is enacted\r\nto facilitate resumption of land by the soldiers & seamen\r\nunder section 15 of the 1961 Act, who run the risk of\r\nsacrificing their limbs or lives in protecting frontiers of the\r\ncountry.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(g) The vehement submission of learned counsel for\r\nthe Petitioners that after the appointed day i.e.,\r\n01.03.1974, all tenanted lands vested in the State by virtue\r\nof provisions in sections 44 & 45 of the 1961 Act and\r\ntherefore, there was nothing to be partitioned and as a\r\nconsequence, the so called Partition Deed was non est, is\r\nbit difficult to countenance. All tenanted lands vest in the\r\nState by operation of law, is true. However, for fructification\r\nof such a deeming, there has to be some formal proof of\r\nland being tenanted as on the appointed day, i.e.,\r\n01.03.1974 and this ordinarily would happen on\r\nadjudication by the Land Tribunal or by the competent\r\nauthorities functioning under the 1961 Act. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Right to resume </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">land is an incidence of ownership, cannot be denied. If the\r\nlegislature in its wisdom grants such a right to ExServicemen, the arguable fact that the tenanted land has\r\nvested in the State, does not cut it short. When tenanted\r\nlands that arguably vest in the State by operation of law\r\nare partitioned, the allottee would at least get the\r\ncompensation under this Act itself.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>These directions are structured on and support the above\r\nview. Otherwise, the LRRP of tenants would have been\r\nallowed and that of the landlords would have been\r\ndismissed, hardly needs to be explained.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(h) The next submission of learned counsel for the\r\nPetitioners that the claim for resumption made by the ExServiceman lacked bonafide inasmuch as he had sold\r\ncertain other lands that had fallen to his share in the\r\npartition, is liable to be rejected, and reasons for this are\r\nnot far to seek: Firstly, as on the date, these lands were\r\ndisposed off, the right to property was constitutionally\r\nguaranteed under Article 19(1)(f) as a fundamental right,\r\nalthough it came to be relegated to be non-fundamental\r\nvide 44th Amendment, continues to be a Constitutional right\r\nenshrined under Article 300 A as has been reiterated by the\r\nApex Court in BAJRANGA vs. STATE OF MADHYA\r\nPRADESH <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">such as the right to possession, the right to enjoyment, the\r\nright to alienate, etc vide INDAR SEN vs. NAUBAT SEN9\r\n.\r\nUnless the law interdicts, a citizen is free to alienate his\r\nproperty in whatever way and whenever he wants.\r\nSecondly, such sales do not rob away otherwise extant\r\nbonafide of the transferor. Ordinarily, law requiring\r\nbonafide on the part of a landlord for claiming resumption\r\nof property whether land or building, is construed liberally\r\nin favour of the landlord and therefore, bonafide has to be\r\npresumed in the absence of malafide, as rightly contended\r\nby Mr.Sridhar Prabhu. Absence of malafide would ordinarily\r\nlead one to presume bonafide, in a matter like this,\r\nconsistent with the statutory policy of benefiting the ExServicemen</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) There is a lot of force in the vehement contention\r\nof Mr.Sridhar Prabhu appearing for the Ex-Serviceman that\r\nthough Article 226 is also employed in the pleadings of the\r\nPetitioners, the petition has to be treated as being only\r\nunder Article 227 of the Constitution which vests a limited\r\nsupervisory power in this court and therefore, a deeper\r\nexamination of the impugned orders unlike in appeal, gains\r\nsupport from Apex Court decision in SADHANA LODH VS.\r\nNATIONAL INSURANCE COMPANY LIMITED .The Tahasildar\r\nvide order dated 30.06.2001 running into twenty one and\r\nhalf pages has appreciably considered all aspects of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">matter in the right perspective. Most of these contentions\r\nare factual and they are founded on evidentiary material on\r\nrecord. Even legal aspects have been meticulously\r\naddressed. The challenge to this order by the Petitioners in\r\nappeal before the Assistant Commissioner came to be\r\nnegatived on 15.11.2012 by powerful reasoning. In matters\r\nlike this, always there are some arguable points this side or\r\nthat side, by razor sharp brains. What this court has to see\r\nis the just result brought about by the impugned orders, a\r\nfew insignificant lacunae therein notwithstanding. This is a\r\ncase wherein a Lt. Colonel has been battling to get the land\r\nback from the tenants, since decades. The woes that the\r\nEx-Serviceman has undergone all these decades, perplexes\r\nthis court, to say the least. If a soldier who has protected\r\nthe frontiers of the country for years whilst in service were\r\nto be treated this way in the evening of his life, what other\r\ndefence personnel in service would think of, is left to the\r\nwild imagination of the society. Much is not needed to\r\nspecify and less is insufficient to leave it unsaid.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the above circumstances, this Writ Petition is liable\r\nto be rejected & accordingly, it is. A direction issues to the\r\nPetitioners to deliver back possession of the property\r\npeaceably to the 4th respondent within eight weeks, failing\r\nwhich, the official respondents shall remove them by the\r\nMight of State and put the 4th respondent in possession\r\nthereof. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '724aa0dffc2e49eb3be4faed184eeb02.JPG', 'b636e2806917c221b8c4f33d00e62830.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-22', 1, '', '', '2022-11-17 13:36:56', '2022-11-22 03:22:12'),
(2409, 'ifUf91wuAJ6yYFaS58OEH1SFd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Post-dated cheque presented beyond the period of three months from the date the cheque bears will not attract the provisions of Section 138 of the N I Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shridhar Ramachandra Kampli Vs Sakrappa Hanumappa Hurukuni.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 102509 of 2022 decided on 14 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The respondent filed a private complaint under Section\r\n200 of Cr.PC for the offence punishable under Section 138 of\r\nN I Act alleging that the cheques which were issued by the\r\naccused in favour of the complainant when presented for\r\nrealization were dishonoured for want of funds. The learned\r\nMagistrate after recording the sworn statement took the\r\ncognizance of the aforesaid offence and issued summons.\r\nTaking exception to the same, the petitioner is before this\r\nCourt.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Ex.P6 is the copy of invoice which indicates that the\r\ncomplainant had supplied maze to the accused and in lieu of\r\nthe same, the accused had issued four cheques in favour of the\r\ncomplainant towards the sale consideration. Admittedly, the\r\ncheques were handed over to the complainant on the date on\r\nwhich the invoice was executed by the accused in favour of the\r\ncomplainant. The invoice is dated 15.1.2021 and the cheques\r\nwere presented on 7.5.2021. The validity of the cheque was\r\nfor a period three months from the date it was drawn. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. In the instant case, the cheques were signed on\r\n15.1.2021 and were handed over to the complainant on the\r\nsame day and the date columns were kept blank and thereafter\r\nthe complainant has filled the date on the cheques. Hence, it is\r\nimplied that the cheques were drawn on the day when the\r\ndrawer signed the cheques, complete in its form. Therefore, the\r\ncheques post-dated which were presented beyond the period of\r\nthree months from the date the cheques bear will be out of the\r\npurview of Section 138 of the N I Act. The prosecution being\r\nmisconceived, it will be an abuse of process of the criminal\r\ncourt to allow them to continue.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n i) The criminal petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0dafbb367558409a11e919034c47bfac.jpeg', '62e16fa5f123e7eac217fe5c9fd0d7f4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-18', 1, '', '', '2022-11-17 15:02:41', '2022-11-18 18:23:49'),
(2410, 'FirtWi1IcJtGX55jokm6b6ein', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Before initiating criminal proceedings under the Factories Act, the authorities should pass an order on the reply submitted by the occupier or the factory manager to the show cause notice. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K. Rajashekhar Reddy and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 102567 of 2022 decided on 14 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>A complaint has been filed by the respondent under\r\nSection 200 of Cr.PC for the offence punishable under Section\r\n92 of the Factories Act and the Karnataka Factories Rules, 1969\r\nalleging that there was lapse in the maintenance of documents\r\ni.e. muster roll–cum-register of wages/salary and etc. The\r\nlearned Magistrate after perusing the complaint took the\r\ncognizance for the aforesaid offence. Taking exception to the\r\nsame, this petition is filed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">5. A coordinate Bench of this Court in Crl.P\r\nNo.2570/2021 and connected matter has held that though\r\nthere is no provision under the Factories Act that the\r\nAuthorities concerned should pass an order to the reply\r\nsubmitted by the occupier or the factory manager, principles of\r\nnatural justice require such an order to be passed, or otherwise\r\nthe purpose of giving right to the occupier or the factory\r\nmanager to prefer an appeal under Section 107 of Factories Act\r\nbecomes redundant. In the instant case, the respondents </span><span style=\"font-size: 12pt;\">having issued the show cause notice and the accused having\r\nsubmitted the reply to the said show cause notice, it was\r\nincumbent on the respondents to consider and pass appropriate\r\norder so as to enable the petitioners – accused to file an appeal\r\nas specified under Section 107 of the Factories Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>\r\n\r\n6. For the foregoing discussion, the continuation of\r\ncriminal proceeding against the petitioners will be an abuse of\r\nprocess of law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> i) The criminal petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '299a57a260004ad81267de73774a787f.jpeg', '709e1e930e4a9aa34932df6e36953776.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-18', 1, '', '', '2022-11-17 15:07:16', '2022-11-18 09:25:40');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2411, 'Vap8vYwq0Bw2NbG83doyml8ig', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for compensation against bank by purchaser for delivery of lesser extent of the property sold is not barred under Section 34 of the SARFAESI Act. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Leelamma Mathew Vs M/s Indian Overseas Bank and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 7128 of 2022 decided on 17 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice Krishna Murari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. That the defendant ­ Bank secured the property in Survey No.48/1 in Tirur Taluk, Tanur Village in exercise of powers under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (hereinafter referred to as ‘SARFAESI Act, 2002’)</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.1 That the Bank secured the possession and thereafter by notice for auction dated 23.01.2007 the secured asset admeasuring 54 cents was put to auction. The appellant – original plaintiff after inspection of the property submitted the quotation for sale of 54 cents of land and offered Rs.32,05,000/. It appears that in the quotation the original plaintiff specifically stated that the offer of Rs.32,05,000/­ is subject to the condition that absolute ownership and vacant possession of full extent of property without encumbrances is handed over. However, by communication dated 05.03.2007, the Bank replied that as in the invitation to the public for tenders, it is stated that the property would be sold in “as is where is” and “as is what is” condition, the original plaintiff may confirm that he is ready and willing to offer the bid and take the property in the present condition. It appears that vide communication dated 08.03.2007, the original plaintiff reiterated that she is ready to purchase the property only if, absolute ownership, vacant possession and full enjoyment of 54 cents of land, free from all encumbrances is given, otherwise, she is not ready to purchase the property, if the Bank is not able to assign absolute ownership, vacant possession and full enjoyment of the property admeasuring 54 cents.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">2.2 It appears that thereafter the Bank took the possession of the property pursuant to the order passed by the CJM, Manjeri in an application under Section 14 of the SARFAESI Act. That thereafter the plaintiff paid a total sale consideration in the </font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">month of October, 2007. That thereafter the Tehsildar submitted the report dated 21.11.2007 submitting that the actual measurement of the land is 39.60 cents and that the debtor had already transferred 14.40 cents out of land admeasuring 54 cents prior to the creation of the mortgage with the Bank. Despite the above the Bank issued the sale certificate for 54 cents dated 21.11.2007 and handed over the possession of the secured property admeasuring 39.60 cents only however, the sale consideration is issued for 54 cents. That thereafter the sale deed on the basis of the sale certificate was actually executed in favour of the plaintiff only on 01.10.2010 for 54 cents. That thereafter the plaintiff instituted the suit for recovery of damages/compensation with respect to 14.40 cents. It was the case of the plaintiff that as the plaintiff paid a total sale consideration for 54 cents of the land and even the sale certificate and the sale deed was executed for 54 cents the plaintiff has been handed over the possession of 39.60 cents of the land only and therefore the plaintiff is entitled to the damages/compensation with respect to the 14.40 cents which was less than the area for which the plaintiff paid the amount i.e. 54 cents. It was the case on behalf of the plaintiff that it was the duty of the bank when accepted the total sale consideration for 54 cents, to hand over the peaceful and vacant possession of the land admeasuring 54 cents. It was also the case on behalf of the plaintiff that as the bank was aware of the true facts that the area of the property/land is less despite that the bank did not disclose the true facts to the plaintiff and suppressed the material fact and played a fraud.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">2.5 Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned Trial Court, the defendant – Bank filed the present appeal before the High Court. By the impugned judgment and order the High Court has allowed the appeal preferred by the defendants and has quashed and set aside the decree passed by the learned Trial Court inter alia on the grounds (i) that as the fraud has not been established and proved the suit was barred in view of Section 34 of the SARFAESI Act; (ii) That the plaintiff was aware of the fact that the actual area of the secured property put to auction is less than 54 cents and therefore it cannot be said that there was any non­disclosure on the part of the Bank; (iii) that the property was put to auction “as is where is” and “as is what is” basis?</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.6 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court allowing the appeal and quashing and setting aside the decree passed by the learned Trial Court and consequently dismissing the suit, the original plaintiff has preferred the present appeal.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5.1 At the outset, it is required to be noted that after the Bank received the possession of the secured property in exercise of powers under the SARFAESI Act, the property in question admeasuring 54 cents was put to auction, by Auction Notice dated 23.01.2007. The plaintiff on the basis of the representation made and the auction notice in which the land was put to auction was stated to be 54 cents submitted her offer of Rs.32,05,000/­ for sale of 54 cents. At this stage, it is required to be noted that in the quotation itself the plaintiff specifically stated that the offer of Rs.32,05,000/­ is subject to the condition that the absolute ownership and vacant possession of full extent of property without encumbrances is handed over. However, the Bank replied that as in the invitation to the public for tenders, it is stated that the property would be sold on “as is where is” and “as is what is” condition, the plaintiff may confirm that the plaintiff is ready to offer the bid and take the property in the present condition. However, immediately vide communication dated 08.03.2007 the plaintiff reiterated that she is ready to purchase the property only if, absolute ownership, vacant possession and full enjoyment of 54 cents of land, free from all encumbrances is given, otherwise, she is not ready to purchase the property, if the Bank is not able to assign absolute ownership, vacant possession and full enjoyment of the property admeasuring 54 cents. At this stage it is required to be noted that the Bank took the possession of the property auctioned on paper. However, the actual possession was handed over to the Bank in the month of October, 2007 pursuant to the order passed by the CJM, Manjeri in an application under Section 14 of the SARFAESI Act. That thereafter the Tehsildar submitted the report dated 21.11.2007 submitting that the actual measurement of the land is 39.60 cents and that the debtor had already transferred 14.40 cents out of land admeasuring 54 cents prior to creation of the mortgage with the Bank. Despite the above the Bank issued the sale certificate dated 21.11.2007 for 54 cents of land, however, handed over the possession of the secured property admeasuring 39.60 cents only. The sale consideration received by the Bank was for 54 cents. That thereafter the sale certificate was registered in the month of October, 2010. Thereafter the plaintiff filed the suit for recovery of damages with respect to 14.40 cents. The final certificate was registered on 01.10.2010 and thereafter when the suit was filed in the year 2012 it cannot be said that the suit was barred by limitation. At this stage, it is required to be noted that as such no issue was framed by the learned Trial Court on whether the suit is barred by limitation or not.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5.4 Rule 8 of the 2002 Rules cast a duty on the authorized officer to take all precautions before putting the secured asset to sell. As per sub­rule 5 of Rule 8 before effecting sale of the immovable property (secured assets) the authorised officer shall obtain valuation of the property from an approved valuer and in consultation with the secured creditor and fix the reserve price of the property and may sell the whole or any part of such immovable secured asset. Therefore, when the reserve price was fixed the same was for 54 cents. Therefore, it can be presumed that the Bank was aware that the actual area of the secured asset is less than 54 cents. As per Section 54 of the Transfer of Property Act the seller was bound to disclose any buyer any material defect in the property of which the buyer is not aware and which the buyer could not ordinarily discover. Under the circumstances also the submission on behalf of the Bank that the property was put to auction on “as is where is” and “as is what is” condition, thereafter the plaintiff shall not be entitled to compensation of the less area cannot be accepted.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. In view of the above and for the reasons stated above, the High Court has committed an error in allowing the appeal and quashing and setting aside the judgment and decree passed by the learned Trial Court. Consequently, the impugned judgment and order passed by the High Court is hereby quashed and set aside. The judgment and decree passed by the learned Trial Court decreeing the suit is hereby restored. The respondent – Bank to pay the decretal amount to the appellant with interest as per the judgment and decree passed by the learned Trial Court within a period of 8 weeks from today.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The present appeal is allowed with costs which is quantified at Rs.25,000/­ which also shall be paid by the Bank to the original plaintiff within a period of eight weeks from today.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1843aa7ab90ca2c40b1dbd75842f6cb2.jpeg', 'cff3925ba0c95f1c39cec93bbcf08c08.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-19', 1, '', '', '2022-11-18 12:45:02', '2022-11-19 09:32:25'),
(2412, '2CUWfJZLS36s6sRTUBNxA2nBO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'While condoning enormous delay and enhancing compensation, statutory benefits and interest payable under the Land Acquisition Act, 1894 for the delayed period cannot be awarded. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>New Okhla Industrial Development Authority Vs Rameshwar through Legal Heir and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8331-8345 of 2022 decided on 17 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice M.M. Sundresh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"font-family: Calibri, sans-serif; font-size: 12pt;\">1. </span><font face=\"Calibri, sans-serif\">Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 18.12.2018 passed by the High Court of Judicature at Allahabad in respective First Appeals No.657 of 2017 and other allied First Appeals by which after condoning the delay of 22 years in preferring the respective first appeals, the High Court has enhanced the amount of compensation for the lands acquired to Rs.149 per sq.yard, the New Okhla Industrial Development Authority (NOIDA) has preferred the present appeals.</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. At the outset, it is required to be noted that in the present case the Notification under Section 4(1) of the Land Acquisition Act, 1894 was issued on 05.01.1982. The Reference Court determined the compensation at Rs.20/­ per sq.yard by impugned judgment dated 15.12.1993. After a period of 22 years the land owners preferred the present appeals before the High Court. By the impugned common judgment and order the High Court after condoning the delay of 22 years in preferring the appeals has enhanced the amount of compensation to Rs.149/­ per sq.yard at par with the land owners in the case of Deo Karan & Ors.(supra) by which this Court with respect to the acquisition of the year 1982 determined the compensation at Rs.149/­ per sq.yard. Therefore, in the present case the land owners shall be entitled to compensation at Rs.149/­ per sq.yard at par with other land owners whose lands were acquired in the year 1982. It cannot be disputed that the land owners, whose lands have been acquired under the provisions of Land Acquisition Act, 1984, are entitled to a reasonable and just compensation at par with the other similarly situated land owners. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5.3 However, at the same time the acquiring body and the beneficiary of acquisition shall not be saddled with the liability of statutory benefits and the interest which may be available under the Land Acquisition Act, 1894 for the delayed period. In the present case the delay of 22 years can be said to be a substantial delay. However, as the claimants are held to be entitled the enhanced amount of compensation, in the facts and circumstances of the case, the High Court can be said to be justified in condoning the delay. However, at the same time, the High Court has erred in awarding other statutory benefits and interest for the delayed period. To saddle with the liability to pay statutory benefits and interest for the delayed period upon the beneficiary/acquiring body would be a financial burden upon the public body and it may increase the project cost which shall be against the public interests. It cannot be disputed that the liability towards the statutory benefits and the interest under the Act, 1984 would be a huge liability considering the interest at the rate of 15% per annum, solatium, price rise etc. Therefore, while condoning the delay and enhancing the amount of compensation at par with other land owners, the High Court ought not to have saddled the liability upon the appellant to pay statutory benefits and the interest payable under the Land Acquisition Act, 1894 for the delayed period. To the aforesaid extent the impugned common judgment and order passed by the High Court is required to be modified and the present appeals are required to be partly allowed to the aforesaid extent.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. In view of the above and for the reasons stated above all these Appeals Succeed in part. The impugned common judgment and order passed by the High Court passed in respective appeals is hereby partly allowed to the aforesaid extent denying the statutory benefits and the interest which may be payable under the Land Acquisition Act, 1894 for the period between the judgment and award passed by the Reference Court i.e. 15.12.1993 till the respective first appeals were filed after curing the defects. Meaning thereby the original land owners/claimants shall not be entitled to any statutory benefits including the interest payable under the Land Acquisition Act, 1894 on the enhanced amount of compensation for the period between 15.12.1993 till the respective first appeals after curing the defects were filed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Present Appeals are Partly Allowed to the aforesaid extent. However, in the facts and circumstances of the case, there shall be no order as to costs. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2eaef11f69fece7580461e1c75e8f0ef.jpeg', '260b9ea629b85d16cc3415c2faa01d38.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-21', 1, '', '', '2022-11-18 12:56:35', '2022-11-21 06:19:44'),
(2413, 'z5I6nLwt2l8sktF2xcEMvhT4Q', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Manufacture of polyurethane foam used for car seats cannot be considered as car seats/automobile seats for deduction under Section 80-IB of the IT Act. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/s Polyflex (India) Pvt. Ltd Vs The Commissioner of Income Tax and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8260 of 2022 decided on 17 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice M.M. Sundresh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts leading to the present appeal in nutshell are as under:<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>That the appellant – assessee is having a manufacturing unit at\r\nPune in which the appellant – assessee is manufacturing ‘polyurethane\r\nfoam,’ which is ultimately used as automobile seat. The assessee filed\r\nits return of income for the assessment year 2003-04 and claimed\r\ndeduction under Section 80-IB of the Income Tax Act (for short, ‘IT Act’).\r\nThe assessing officer disallowed the deduction under Section 80-IB of\r\nthe IT Act by observing that the nature of the business of the assessee is\r\n“manufacturer of polyurethane foam seats” which falls under entry 25 to\r\nthe Eleventh Schedule of the IT Act and therefore the assessee shall not\r\nbe entitled to deduction under Section 80-IB. However, it was the case\r\non behalf of the assessee that different sizes of polyurethane foam are\r\nused as automobile seats and therefore the end product can be said to\r\nbe the automobile seat which is different than the polyurethane foam and\r\ntherefore the same does not fall under entry 25 to the Eleventh Schedule\r\nof the IT Act. However, the assessing officer did not accept the same by\r\nobserving that as ‘polyurethane foam’ is made of Polyol and Isocyanate\r\nand other components, the deduction under Section 80-IB of the IT Act\r\ncannot be given to the assessee-company as Section 80-IB(2)(iii) states\r\nthat the benefit of deduction under the said section cannot be given if the\r\nassessee manufactures or produces any article or thing specified in the\r\nlist in the Eleventh Schedule of the IT Act<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.1 The assessee preferred an appeal before the Commissioner of\r\nIncome Tax (Appeals) (for short, ‘CIT(A)) against the assessment order.\r\nThe CIT(A) upheld the order of the assessing officer. The CIT(A)\r\nobserved that the two chemicals, namely, Polyol and Isocyanate used in\r\nthe manufacture of polyurethane foam seats assemblies were the basic\r\ningredients of polyurethane foam and therefore the case would squarely\r\nfall in what is specified in the Eleventh Schedule.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n2.2 Against the order of the CIT(A), the Assessee filed an appeal\r\nbefore the Income Tax Appellate Tribunal (for short, ‘ITAT’). The ITAT set\r\naside the assessment order as well as the order passed by the CIT(A)\r\nand allowed the appeal filed by the assessee by observing that\r\npolyurethane foam was neither produced as a final product nor is an\r\nintermediate product nor is a by-product by the assessee and the same\r\nwas used as automobile seat and therefore does not fall within entry 25\r\nto Eleventh Schedule of the IT Act and therefore the assessee shall be\r\nentitled to claim deduction under Section 80-IB of the IT Act. The order\r\npassed by the ITAT has been set aside by the High Court, by the\r\nimpugned judgment and order specifically observing that what is\r\nmanufactured by the assessee is polyurethane foam in different\r\nsizes/designs and there is no further process undertaken by the\r\nassessee to convert it into automobile seats and therefore what is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">manufactured by the assessee is polyurethane foam falling in entry 25 to\r\nEleventh Schedule and therefore the assessee shall not be entitled to\r\ndeduction claimed under Section 80-IB of the IT Act. Consequently, the\r\nHigh Court has allowed the appeal preferred by the revenue and has\r\nquashed and set aside the order passed by the ITAT and has restored\r\nthe assessment order denying the deduction claimed under Section 80-\r\nIB of the IT Act. The impugned judgment and order passed by the High\r\nCourt is the subject matter of present appeal.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The short question which is posed for the consideration of this\r\nCourt is, “whether the assessee is eligible for the benefit under Section\r\n80-IB of the IT Act?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The assessee shall not be eligible for the benefit under Section 80-\r\nIB of the IT Act if it is found that the articles and/or goods manufactured\r\nby the assessee do not fall and/or classifiable under Eleventh Schedule.\r\nAccording to the revenue, the assessee is manufacturing polyurethane\r\nfoam which falls under the Eleventh Schedule. However, it is the case\r\non behalf of the assessee that the final product manufactured and sold\r\nby the assessee is automobile seats/car seats which is other than the\r\nmanufacture of polyurethane foam.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. By the impugned judgment and order, the High Court has\r\nspecifically observed and held that what is manufactured and sold by the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">assessee is polyurethane foam which is manufactured by injecting two\r\nchemicals, namely, Polyol and Isocyanate and the polyurethane foam\r\nwhich is manufactured by the assessee is used as ingredient for\r\nmanufacture of automobile seats. The assessee is manufacturing\r\npolyurethane foam and supplying the same in different sizes/designs to\r\nthe assembly operator, which ultimately is being used for car seats. The\r\nassessee is not undertaking any further process for end product, namely,\r\ncar seats. The polyurethane foam which is supplied in different\r\ndesigns/sizes is being used as ingredient by others, namely, assembly\r\noperators for the car seats. Merely because the assessee is using the\r\nchemicals and ultimately what is manufactured is polyurethane foam and\r\nthe same is used by assembly operators after the process of moulding\r\nas car seats, it cannot be said that the end product manufactured by the\r\nassessee is car seats/automobile seats. There must be a further\r\nprocess to be undertaken by the very assessee in manufacturing of the\r\ncar seats. No further process seems to have been undertaken by the\r\nassessee except supplying/selling the polyurethane foam in different\r\nsizes/designs/shapes which may be ultimately used for end product by\r\nothers as car seats/automobile seats.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. So far as the reliance placed upon the decisions of this Court in\r\nthe cases of Vinbros and Company (supra) and Hindustan <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Petroleum Corporation Limited (supra), relied upon by the learned\r\ncounsel appearing on behalf of the assessee is concerned, the same\r\nshall not be applicable to the facts of the case on hand and/or the same\r\nshall not be of any assistance to the assessee in view of the findings\r\nrecorded hereinabove.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>10. In view of the above when the articles/goods which are\r\nmanufactured by the assessee, namely, polyurethane foam is an article\r\nclassifiable in the Eleventh Schedule (entry 25), considering Section 80-\r\nIB(2)(iii), the assessee shall not be entitled to the benefit under Section\r\n80-IB of the IT Act. The High Court has rightly held so and has rightly set\r\naside the order passed by the ITAT and has rightly restored the order\r\npassed by the assessing officer denying the deduction/benefit claimed\r\nunder Section 80-IB of the IT Act. We are in complete agreement with\r\nthe view taken by the High Court and that of the assessing officer,\r\nconfirmed by the CIT(Appeals).\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11. In view of the above and for the reasons stated above, the present\r\nappeal fails and the same deserves to be dismissed and is accordingly\r\ndismissed. However, there shall be no order as to costs.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e0a55b163f6ed74b42b4aec1ee6acf76.jpeg', '6b3da3d437f76b956b680625e736b65e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-21', 1, '', '', '2022-11-18 13:14:28', '2022-11-21 11:01:23'),
(2414, 'GBsFa6mijxSRJHZVqERDUiyP3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Director of a company is not liable for prosecution under Section 138 of NI Act without the company being arraigned as an accused. Supreme Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pawan Kumar Goel Vs State of U.P. and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1999 of 2022 decided on 17 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna Murari and Justice Bela M. Trivedi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The Appellant is engaged in the business of sales of machinery and spare\r\nparts under the name and style of ‘M/s Pawan Hardware Store’. Respondent\r\nNo. 2 herein is one of the Director of Ravi Organics Limited, a private limited <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">company, engaged in the manufacturing and sales of various types of chemicals.\r\nBoth of them were having business dealings and Ravi Organics Limited was\r\nhaving a running account with the appellant. Respondent No. 2 is alleged to\r\nhave issued an account payee cheque for a sum of Rs. 10 Lakhs payable at\r\nUnion Bank of India, Muzaffarnagar, in favor of the Appellant towards\r\ndischarge of its liability for supply of materials made by the appellant. When the\r\nappellant presented the cheque before the banker, it was dishonored on\r\n24.12.2012. The Appellant, thereafter, sent a legal notice dated 01.01.2013 to\r\nRespondent No. 2 through registered post, which, though, was served, however,\r\nthere was no response from Respondent No.2</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Despite service of notice, when neither there was any response from the\r\naccused nor payment was made, appellant filed four criminal complaints against\r\nRespondent no. 2 for the offence punishable under Section 138 Negotiable\r\nInstruments Act, 1881 (hereinafter referred to as ‘NI Act’) on the allegations\r\nthat the account payee cheque bearing no. 802276 of Union Bank of India,\r\nMuzaffarnagar, for a sum of Rs.10 lakhs dated 20.11.2012 issued by the\r\nrespondent no. 2 towards the outstanding bills when presented for clearance was\r\ndishonored on the ground that the cheque amount exceeds arrangement. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Two main issues which falls for our consideration in this appeal are :-\r\n(1) Whether a director of a company would be liable for prosecution\r\nunder Section 138 of NI Act without the company being arraigned\r\nas an accused.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(2) Whether a complaint under Section 138 of NI Act would be liable\r\nto be proceeded against the director of the company without their\r\nbeing any averments in the complaint that the director arrayed as an\r\naccused was in charge of and responsible for the conduct and\r\nbusiness of the company.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. This Court has been firm with the stand that if the complainant fails to\r\nmake specific averments against the company in the complaint for the\r\ncommission of an offence under Section 138 of NI Act, the same cannot be\r\nrectified by taking recourse to general principles of criminal jurisprudence.\r\nNeedless to say, the provisions of Section 141 impose vicarious liability by\r\ndeeming fiction which pre-supposes and requires the commission of the offence\r\nby the company or firm. Therefore, unless the company or firm has committed\r\nthe offence as a principal accused, the persons mentioned in sub-Section (1) and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(2) would not be liable to be convicted on the basis of the principles of vicarious\r\nliablity. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. In view of the above, arguments advanced by learned counsel for the\r\nappellant that an additional accused can be impleaded subsequent to the filing of\r\nthe complaint merits no consideration, once the limitation prescribed for taking\r\ncognizance of the offence under Section 142 of NI Act has expired. More\r\nparticularly, in view of the fact that neither any effort was made by the\r\npetitioner at any stage of the proceedings to arraign the company as an accused\r\nnor any such circumstances or reason has been pointed out to enable the Court\r\nto exercise the power conferred by proviso to Section 142, to condone the delay\r\nfor not making the complaint within the prescribed period of limitation.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. As already stated above, a perusal of the complaint goes to show that\r\neven though respondent no. 2 has been arrayed as a respondent, but there are no\r\naverments that respondent no.2 at the time when the offence was committed was\r\nin charge of, and was responsible to the company for the conduct of its business.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. The three-Judge Bench also took note of the earlier pronouncements of\r\nthis Court in the case of State of Haryana Vs. Brij Lal Mittal & Ors. , wherein\r\nit was held that vicarious liability of a person for being prosecuted for an\r\noffence committed under the Act by a company arises if at the material time he\r\nwas in charge of and was also responsible to the company for the conduct of its\r\nbusiness. Simply because a person is a director of a company, it does not\r\nnecessarily mean that he fulfils both the above requirements so as to make him\r\nliable. Conversely, without being a director a person can be in charge of and\r\nresponsible to the company for the conduct of its business.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. The Bench also considered the dictum of this Court in the case of K.P.G.\r\nNair Vs. Jindal Menthol India Ltd., which was also a case under the\r\nNegotiable Instruments Act. In the said case, it was found that the allegations in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">he complaint did not in express words or with reference to the allegations\r\ncontained therein make out a case that at the time of commission of the offence,\r\nthe appellant was in charge of and was responsible to the company for the\r\nconduct of its business. It was held that requirement of Section 141 was not met\r\nand the complaint against the accused was quashed. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">32. In view of the undisputed facts of the present case in juxtaposition to the\r\njudicial pronouncements of this Court referred to above, we have no hesitation </span><span style=\"font-size: 12pt;\">in holding that no error has been committed by the High Court in allowing the\r\nWrit Petition filed by the respondent no. 2 and quashing the impugned order and\r\nthe proceedings.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>33. Thus, the impugned orders do not warrant any interference. As a result,\r\nthe appeals fail and, accordingly, stand dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e03a55f01ae6f4158296027fbede1d8c.jpeg', '92d4e23032d452012a88866630ff4419.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-21', 1, '', '', '2022-11-18 14:02:48', '2022-11-21 12:21:44');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2415, 'n7ugD6CJtWkRQiO1MPPt3blIR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Persons nominated under Section 352(1)(b) of the Karnataka Municipalities Act, 1964 are not eligible to be included in the electoral roll of the Local Authorities Constituency. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>A.V. Gayathri Shanthegowda Vs Election Commission of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 1850 of 2022 decided on 3 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The challenge in these writ petitions is to the inclusion of\r\npersons nominated to the respective Town Panchayats under\r\nSection 352(1)(b) of the Karnataka Municipalities Act, 1964 (for\r\nshort `Act, 1964’) in the electoral roll to the election to the\r\nKarnataka Legislative Council in 12 Chikkamagaluru Local\r\nAuthorities Constituencies and since the issues involved in these\r\npetitions are similar, they are taken up together and disposed of\r\nby this common order.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The petitioners are the elected members of (a)\r\nMudigere Town Panchat (b) Narasimharajapura Town Panchayat\r\n(c) Sringeri Town Panchayat and (d) Koppa Town Panchayat\r\nrespectively and are eligible voters to No.12 Chikkamagaluru\r\nLocal Authorities Constituency. The respondents No.4 to 15 are\r\nnominated to the respective Town Panchayats by the\r\nGovernment in exercise of its power under Section 352(b) of the\r\nAct, 1964. The petitioners No.1 and 2 contested the election to\r\nNo.12 Chikkamgalur Local Authorities Constituency and were\r\ndeclared as unsuccessful candidates having lost the election and\r\nrespondent No.3 was declared as the returned candidate and the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">grievance of the petitioners is that had the respondents, who\r\nwere nominated to the respective Town Panchayats, were not\r\nincluded in the voters list, the result of the election would have\r\nbeen materially affected.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. After examining the submission of the learned\r\ncounsel for the parties, the points that arise for consideration are\r\nas follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i) Whether the writ petitions challenging the inclusion\r\nof the names of the private respondents, who are\r\nnominated by the Government in the electoral roll of\r\nthe Local Authorities Constituency, are\r\nmaintainable?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ii) Whether a person nominated as representative of\r\nthe Government under Section 352(1)(b) of the Act,\r\n1964 is eligible to be included in the electoral roll of\r\nthe Local Authorities Constituency?<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Reg. point No.(i):</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. A conjoint reading of the aforesaid provisions clearly\r\nindicates that Section 24 which provides for an appeal against\r\ninclusion of names in the electoral roll of the assembly\r\nconstituencies is conspicuously absent in Section 27(e) of RP Act,\r\n1950 in relation to the inclusion of names in the electoral roll of\r\nthe Local Authorities Constituencies. Hence, the provisions\r\ncontained in the RP Act, 1950 does not provide for a remedy of\r\nappeal to challenge the inclusion of names in the electoral roll of\r\nthe Local Authorities Constituency.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. It is also equally well settled that any illegality in the\r\npreparation of voters list cannot be challenged in an election <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petition as held by the Hon’ble Supreme Court in the case of\r\nKunwar Nripendra Bahadur Singh (supra).</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. Hence, the present writ petitions challenging the\r\ninclusion of the names of the persons in the electoral roll of the\r\nLocal Authorities Constituency are held to be maintainable.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Reg. point No.(ii):</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. Section 2(6) of the Act, 1964 specifies that the term\r\n`councilor’ means any person, who is legally a member of the\r\nTown Panchayat. The Division Bench of this Court in the case of\r\nSmt.Chandubi and others –vs- The Deputy Commissioner and\r\nothers in WP No.12320/1997 (DD 10.12.1997) has held that, by\r\nthe use of word `legally’ in the definition it has to be read as\r\n`legally elected member’ and not otherwise. The Division Bench\r\nof this Court in the case of Smt.Pramila M and others –vs- State\r\nof Karnataka reported in ILR 2015 KAR 5872, has held that the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">word `councilor’ to be limited only to the directly elected\r\ncouncilor is clearly unacceptable and to accept this argument it\r\noverlooks definition of word `councilor’ given in Section 2(7) of\r\nthe Karnataka Municipal Corporation Act, 1976. However, this\r\ndecision was rendered interpreting Section 2(7) read with\r\nSection 7 of the Municipal Corporation Act, 1976.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. Section 2(7) of KMC Act, 1976 specifies that the term\r\n`councilor’ means a councilor referred to in Section 7 of the Act, 1964\r\nand Section 7 deals with the constitution of the Corporation. However,\r\nSection 2(6) of the Act, 1964 specifies that the term ‘councilor’ means\r\nany person who is legally a member of the Town Panchayat.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34. In the backdrop of provisions contained in Article\r\n243-R, Section 2(6) and Section 352 of the Act, 1964 and also in\r\nthe backdrop of the aforesaid decision, the issue whether the\r\nterm `every member’ as specified under Section 27(2)(b) of the\r\nAct, 1950 includes persons nominated by the Government under\r\nSection 352 of the Act, 1964 has to be examined.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>35. It is a settled law that the provisions should not be\r\ninterpreted otherwise which would contravene the Rule of plain\r\n`meaning of literal construction’. It is also settled law that the\r\nother methods of extracting the meaning can be resorted to only if\r\nthe language used is contradictory, ambiguous or leads really to\r\nabsurd results. This Court while interpreting the word \'every\r\nmember’ must look into the provisions of the Constitution as a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">whole and favour the interpretation that does not render another\r\nprovision redundant, otiose or superfluous.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>40. The issue involved is whether the term \'every member’\r\nincludes persons nominated to the council by the Government.\r\nHence, the contentions with reference to other provisions of the\r\nConstitution of India and also the Act, 1964 raised by the learned\r\ncounsel appearing for the Election Commission of India do not\r\nrequire any consideration.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>41. For the aforesaid discussion, it is held that the term\r\n`every member’ if read with reference to Article 243-R of the\r\nConstitution of India, Section 2(6) and Section 352 of the Act, 1964\r\nand also the decisions of the Division Bench of this Court in the\r\naforesaid cases (supra) wherein it is held that only the elected\r\nmembers are the councilors and does not include\r\npersons, who have been nominated by the Government, are not <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">entitled to be enrolled in the voters list to the election of a\r\nmember of the legislative councilor from the Local Authority\r\nconstituency</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i) Writ petitions are allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '790cd91def7dee7ee8eb2cfc681588e7.jpeg', '387251bdff81368d5f4e318660566efc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-19', 1, '', '', '2022-11-18 15:19:05', '2022-11-19 03:42:15'),
(2416, '12wkJrnHIYxDLAoyKRMKaPh8f', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bar Council of India has no power to suspend practice of an Advocate ex-parte without affording an opportunity of being heard. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 16pt;\">K. B. Naik vs Bar Council of India</span><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 16pt;\">Writ Petition 20983 of 2022 decided on 17 November 2022<br>Justice M. Nagaprasanna<br><br><o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 16pt;\">“Whether an order suspending practice of an Advocate in any Court of law, could have been passed without hearing him, albeit at an interim stage”?<o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 16pt;\"> </span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 16pt;\">13. The issue now, is whether under Section 48A such an order could be passed, in blatant violation of principles of natural justice and mandate of the statute. Sub-section (2) of Section 48A mandates that no order which prejudicially affects any person shall be passed under Section 48A without affording him a reasonable opportunity. The observation in paragraph 29 of the order extracted supra is that a video conferencing link was sent to the petitioner and he did not appear and therefore, the order is passed. At paragraph 36 again the impugned order observes that to grant him an opportunity, another notice is sent. Therefore, it is a clear case where the petitioner was not heard and an order which, on the face of it, prejudicially affects him, is passed without hearing. The submission that the order is only an interim order, it would not become an order that is depicted in sub-section (2) of Section 48A, is noted only to be rejected, as it is fundamentally flawed. Order, would mean, each and every order that would prejudicially affect any person. The prejudice caused in the case at hand is, taking away the livelihood of the petitioner as he is barred from practicing in any Court of law. Therefore, an order as observed in subsection (2) of Section 48A would mean any order either interim or final which would prejudicially affect the person. If it is affecting the person or would result in any civil consequence, such an order cannot and ought not be passed without, at the outset, complying with the principles of natural justice.<o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 16pt;\"> </span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 16pt;\">14. The concept of audi alteram partem which forms the bed rock of the principles of natural justice is not evolved ages ago or to-day. It is evolved beyond the dim mist of eternity. It is said, God himself did not pass any sentence on Adam before calling upon him to make his defence for the act of having consumed the proscribed fruit in the Eden Garden. Therefore, God himself gave an opportunity of hearing to Adam and Eve before passing the sentence for consumption of the forbidden fruit. The principle has emerged since then. Thus, it is not today that this concept exists; it is as early as humanity. The said principle is since then chiseled, honed and refined, and judicial treatment by Courts of law has rendered luminosity to the said principle. Principles of natural justice is a concept that has been evolved by courts of law even in areas where no opportunity of hearing is provided under the statute. The concept has been read into those statutes for minimum protection of rights of an individual against any arbitrary procedure that may be adopted by a judicial, quasi judicial or administrative exercise of power while determining rights of parties.<o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 16pt;\"> </span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 16pt;\">15. The rule of natural justice is intended to prevent such power from doing injustice. Therefore, adherence to principles of natural justice is recognized by all civilized States and civilized societies to be imperative, to be followed, when any judicial, quasi judicial or administrative body embarks upon determining the dispute between the parties or any order that would be passed resulting in civil consequences. As observed hereinabove, the bedrock of such acts are the principles of audi alteram partem and fair play in any action. Fair play in action is in effect grant of a fair hearing; fair hearing would be to have notice of the other sides case; right to bring evidence and right to argue. If these are not provided, the Court would step into nullify such acts, be it quasi judicial or administrative.<o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 16pt;\"> </span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 16pt;\">In the light of the admitted fact that the petitioner was not heard in the matter and the impugned action being contrary to sub-section (2) of Section 48A of the Act and it being in blatant violation of the principles of natural justice, I deem it appropriate to obliterate the order dated 26-09-2022 and remit the matter back to the Bar Council of India, to hear the petitioner, his defence, and then pass appropriate orders in accordance with law.<o:p></o:p></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 16pt;\"> </span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 16pt;\">O R D E R (i) The writ petition is allowed. (ii) The impugned order dated 26-09-2022 passed in Revision Petition No.45 of 2022 by the Bar Council of India stands quashed. (iii) The matter is remitted back to the hands of the Bar Council of India who shall hear the petitioner, afford him a reasonable opportunity of defence, conduct proceedings in accordance with law and pass appropriate orders in consonance with law after considering the defence of the petitioner.<o:p></o:p></span></p>', 'ea391e0ff1edc0729eb93bd5046cfe77.jpeg', '1d582a3391857ddd8318d1e8735b7380.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-21', 1, '', '', '2022-11-20 11:22:56', '2022-11-21 08:52:17'),
(2417, 'QakRkFFOVQ6MZkrgQvJRIviEF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Transparency in Public Procurements Act. Tender inviting authority can modify, change or amend the tender document any time before opening the tender. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rajath R Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 8902 of 2022 decided on 9 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Sans details, facts germane are as follows:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b style=\"font-size: 12pt;\">The petitioner claims to be a registered firm dealing with\r\nsupply of food articles in the name and style of \'R.R.\r\nEnterprises\' and is in the business of supply of readymade food\r\nand diet to the District hospital, Ramanagara from 2021.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n 3.1. Respondent No.2 - Health and Family Welfare\r\nDepartment, issues a Notice Inviting Tender (\'NIT\' for short) on\r\n31.03.2022 calling the tenderers to submit their bids in terms\r\nof what was notified for the purpose of procurement of food\r\nand diet to the Government hospitals, Ramanagara.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 3.2. The petitioner finding himself to be eligible applies\r\npursuant to the NIT. Respondent No.1-State later issues a\r\ncorrigendum concerning the production of GST certificate. The\r\nGST certificate earlier stood at one year, which is by way of\r\nsaid corrigendum is increased to 3 years. By this act of\r\nissuance of corrigendum, the petitioner is out of the race, as\r\nthe petitioner had submitted a GST certificate of one year and\r\ndoes not possess a certificate for 3 years. It is the corrigendum\r\ndated 08.04.2022 that drives the petitioner to this Court in the\r\nsubject petition. The petition having been entertained the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">further proceedings pursuant to the tender are interdicted by\r\ngrant of an interim order, which is subsisting as on date</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The afore-narrated facts, dates and link in the chain\r\nof events are not in dispute and are therefore not reiterated.\r\nThe only issue that falls for consideration is: <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>\"Whether the corrigendum issued would contravene\r\nthe provisions of Karnataka Transparency in Public\r\nProcurements, Rules, 2000?\"</i></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b><br></b></i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. In terms of the chart quoted hereinabove which\r\ndepicts the timeline of opening and closing of the tender what\r\ncan be gathered is that the tender is open from 31-03-2022 up\r\nto 5.30 p.m. on 11-04-2022, last date for submission of bids\r\nwas 11.04.2022. The technical bid scrutiny of the tenders was\r\nslated to be conducted on 13-04-2022 and later the financial\r\nbid was to be opened on 16-04-2022. By the very timeline, it\r\ndepicts to be a two cover tender. The impugned corrigendum is\r\nissued on 8.04.2022 which is between the date of opening of\r\nthe tender and last date for submission of tender. The\r\ncorrigendum was to the effect that tenderers who were asked\r\nto submit their bids along with the GST certificate for one year\r\nwere now asked to submit a GST certificate for three years, in\r\nplace of one year.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">8. The contention of the learned counsel appearing for\r\nthe petitioner is that, by this corrigendum, he is put out of the\r\nrace as he is not in possession of GST certificate for three </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">years, but is in possession of only for one year and had\r\nsubmitted the said bid enclosing a certificate for one year.\r\nAccording to the learned counsel it amounts to alteration of the\r\ntender conditions after issuance of tender which is\r\nimpermissible in law. In the wake of the said submission, it\r\nbecomes necessary to notice whether the Tender Inviting\r\nAuthority had the power to amend the conditions of tender\r\nafter issuing the tender notification.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>A perusal at Rule 14 of the Rules what becomes evident is\r\nthat at any time after issuance of the tender notification before\r\nopening of the tender, the Tender Inviting Authority may, make\r\nany change, modification or amendment to the tender\r\ndocument. The word ‘may’ make any change in Rule 14 of the\r\nRules is unequivocal. At any time after the issue of tender and\r\nbefore opening of the tender the Tender Inviting authority is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">empowered to issue any change. If the dates in the case at\r\nhand are considered qua Rule 14 of the Rules, the\r\nunmistakable inference would be that the action of the Tender\r\nInviting Authority suffers from no illegality. Issue of tender\r\nnotification was on 31-03-2022; the date on which corrigendum\r\nwas issued was on 8.04.2022; the last date for submission of\r\nbids was on 11-04-2022 and opening of technical bid was on\r\n13-04-2022. Therefore, in terms of Rule 14 of the Rules, before\r\nopening of technical bid, the change, modification or\r\namendment to the tender document is a permissible exercise of\r\npower. The only rider is that the information should be given\r\nto all the tenderers. The information is required to be given to\r\nall the tenderers, if the changes are made after the last date of\r\nsubmission of bids, but before opening of technical bid or\r\nopening of any bid for that matter. In the case at hand, the\r\ncorrigendum is notified on 8-04-2022 long before the last date\r\nfor submission of bids even. Therefore, it is information to all\r\nthe tenderers.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. The act of the respondent in issuing a corrigendum\r\nis in consonance with the power available under Rule 14 of the </span></b><b style=\"font-size: 12pt;\">Rules. The submission of the learned Additional Government\r\nAdvocate that corrigendum had to be issued, as stipulation of\r\ncertificate of one year was itself contrary to the Government\r\norder which directed that in tenders three years of GST\r\ncertificate is to be sought merits. Thus acceptance tumbles\r\ndown the challenge to the corrigendum by the petitioner.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. In the considered view of the Court, the change in\r\nthe tender condition by way of impugned corrigendum, does\r\nnot amount to changing rules of the game after the game had\r\ncommenced. It was a permissible exercise of power in law.\r\nMerely because the petitioner is non-suited by way of the said\r\ncorrigendum and is moved out of the race, would not make the\r\ncorrigendum illegal.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 11. For the aforesaid reasons, finding no merit, petition\r\nstands dismissed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e6b6415a93d392c2b7ef7d61511f3d63.jpeg', 'a55ee19bd2faae1a1c5637b104b09687.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-24', 1, '', '', '2022-11-21 13:26:20', '2022-11-24 06:41:19'),
(2418, 'BAoLN6UbNnHpNZIVzFBNGv9gE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A tenderer who does not participate in the tender process has no locus standi to question the tender. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mahalakshmi Engineering Works and others Vs Bangalore Electricity Supply Company Limited.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 17266 of 2022 decided on 9 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioners are before this Court calling in question 40\r\ntenders floated by the respondent/Bangalore Electricity Supply\r\nCompany Limited (‘BESCOM’ for short).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Brief facts that lead the petitioners to this Court in the\r\nsubject petition, as borne out from the pleadings, are as follows:-\r\n The 1st petitioner claims to be a proprietorship concern\r\nengaged in electrical contract works which would include repair and\r\nservicing of electrical transformers and claims to have a valid\r\nlicence issued by the competent authority to undertake such works.\r\nThe 2nd petitioner is an independent rate contractor engaged in the\r\nsame kind of electrical works. The proprietor of the 1st\r\npetitioner/Company and the 2nd petitioner claim to belong to\r\nScheduled Caste/Scheduled Tribe. The respondent/BESCOM issued\r\na notice inviting tenders (‘NIT’ for short) for repair, reconditioning\r\nand distribution of transformers of various capacity, at\r\nTransformers Repair Centers at different Taluka Divisions coming\r\nwithin the jurisdiction of BESCOM. The notification was issued on\r\n28-03-2022 notifying 54 Transformer Repair Centers. A <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">corrigendum to the said notification comes to be issued on\r\n13-04-2022 cancelling four tenders out of 54 tenders shown as\r\nTransformer Repair Centers. Therefore, tenders came to be\r\nrestricted to 50.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. Out of 50 tenders, ten tenders were reserved for persons\r\nbelonging to Scheduled Castes/Scheduled Tribes category claiming\r\nthem to be reserved in terms of Karnataka Transparency in Public\r\nProcurements Rules, 2000. The said tenders became a subject\r\nmatter of Writ Petition No.8492 of 2022. A co-ordinate Bench of this\r\nCourt in terms of its order dated 20-06-2022 quashed the tender\r\nnotification insofar as it pertained to reservation of 10 tenders, for\r\ntenderers belonging to Scheduled Castes/Scheduled Tribes, as\r\nthose were the only tenders that were challenged. The BESCOM\r\ntossed the said judgment before the Division Bench. The Division\r\nBench by its order dated 02-09-2022 dismissed the appeal in Writ\r\nAppeal No.667 of 2022 affirming the order passed by the coordinate Bench.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. I have given my anxious consideration to the submissions\r\nmade by the respective learned senior counsel and have perused\r\nthe material on record.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Whether BESCOM was right in seeking to retender only those 10 tenders that were quashed\r\nby this Court? and\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) Whether petitioners have any locus to question\r\nany act of BESCOM qua the tender notified,\r\nnotwithstanding their non-participation in the\r\ntender process? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In the light of the second issue cutting at the root of the matter, I\r\ndeem it appropriate to consider the same at the outset.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Issue No.2:\r\n(ii) Whether petitioners have any locus to question\r\nany act of BESCOM qua the tender notified,\r\nnotwithstanding their non-participation in the\r\ntender process?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">10. The afore-narrated facts with regard to issuance of notice\r\ninviting tender for the works notified therein are not in dispute. The\r\npetitioners though belong to Scheduled Castes/Scheduled Tribes </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and reservation of 10 tenders being accorded thereto out of 50\r\ntenders, did not participate in the tender process, are all a matter\r\nof record. The notice inviting tender did no where restrict any\r\ntenderer to participate in any tender on the NIT dated 28.03.2022.\r\nThough reservation was stipulated qua 10 tenders, the tenderers\r\nbelonging to Scheduled Castes/Scheduled Tribes were not\r\nprecluded from participating in the tenders of general category. As\r\na matter of fact, there were several tenderers who did participate in\r\nboth the tenders reserved for Scheduled Castes/Scheduled Tribes\r\nand in the general category. The petitioners chose to sit on the\r\nfence, did not participate in the tender process at all, neither in the\r\n10 reserved tenders nor in the 40 unreserved tenders. Therefore,\r\nthe petitioners now seek to point out lacunae in the tenders, sitting\r\noutside throughout. Whether that would be permissible is the\r\nquestion?</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. A tenderer who remains outside and then seeks to\r\nquestion the tender process or conditions stipulated in the tender\r\nnotification would not get locus to challenge and condition of\r\ntender. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Apex Court clearly holds that the tenderer who would chose to\r\nstay away from the tender process cannot be heard to whittle down\r\nthe rights of eligible bidders who had participated in the tender\r\nprocess on the basis of written and express terms and conditions.\r\nAt the culmination of the tender process, if the tenderer had not\r\nparticipated in law, he cannot be seen to question the terms and\r\nconditions. The petitioners, in the case at hand, have admitted their\r\nnon participation in the tender. Staying away from the tender, they\r\ncannot now seek to challenge the tender. It is further germane to\r\nnotice a similar view taken by the Calcutta High Court.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the light of the judgments of the Apex Court in the case of\r\nNATIONAL HIGHWAYS AUTHORITY OF INDIA and the Division\r\nBench of the Calcutta High Court in the case of SUBIR GHOSH\r\nholding that only a participant can question the tender, the\r\nchallenge raised by the petitioners who are not the participants in\r\nthe subject tender, would thus tumble down. Therefore, the second\r\nissue that fell for consideration which concerns locus of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioners to challenge the tender process being held against the\r\npetitioners, the first issue with regard to tender process would not\r\narise for consideration, as it is trite law, that if a writ petitioner has\r\nno locus to raise a challenge to the subject matter, no other ground\r\non merit of the challenge need be considered.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. For the aforesaid reasons, finding that the petitioners\r\nhave no locus to maintain the petition, the petition is dismissed as\r\nunentertainable.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '573a4a269942101f4abce6cbe98b523b.jpeg', '18451aca70dc75f5d45ceaa2aedac630.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-22', 1, '', '', '2022-11-21 13:43:16', '2022-11-22 12:27:43'),
(2419, 'qShEUGV1528ixEHut1KH6TnwW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'KMMC Rules. When the order of Competent Authority is approved by the Controlling Authority, who is also the Revision authority, Revision can only be filed before the State Government. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>A.N. Murthy Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 22038 of 2022 decided on 14 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice Prasanna B. Varale and Justice Ashok S. Kinagi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The very limited issue is involved in the present\r\npetition. The petitioner is the lessee of the quarry in survey\r\nNo.272 to an extent of 1 acre 8 guntas situated at Sadahalli </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Village, Devanahalli Taluk, Bengaluru Rural District issued by the\r\nCompetent Authority i.e., the Director, Department of Mining\r\nand Geology on 31.12.2014 for a period of 20 years. It may not\r\nbe necessary to refer to other factual aspects, suffice to say that\r\nrespondent No.4-Deputy Director, Department of Mining and\r\nGeology issued various demand notices to the petitioner for\r\npayment of outstanding penalty amount and the copy of such\r\none demand notice dated 23.01.2020 is placed on record at page\r\n120. The notices refer to the various outstanding amount and\r\ncertain defects were observed in the inspection of the audit\r\nreport.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. Being aggrieved by the demand notices, the\r\npetitioner submitted Revision Petition under Rule 53(2) of the\r\nKarnataka Minor Mineral Concessions Rules, 1994 (for short ‘the\r\nRules, 1994’) before the State Government i.e., the Secretary,\r\nDepartment of Industries and Commerce, Bangalore. By the\r\ncommunication dated 28.07.2022, the Under Secretary to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Government informed the petitioner that as per the provisions of\r\nRule 53 (2) of the Rules, 1994, Revision is maintainable before\r\nthe Government, only for the orders passed by the Authorities\r\nabove the rank to that of Additional Director, Mines and Geology\r\nDepartment. The petitioner was further informed that the\r\nRevision Petition filed before the Government is not maintainable\r\nas per Rule 53 (2) of the Rules, 1994.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. As stated above, the petitioner has not committed\r\nany error in submitting the revision petition, being aggrieved by\r\nthe issuance of demand notices by the Deputy Director on an\r\napproval by the Director, to the State Government for its\r\nconsideration.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Accordingly, this being a limited scope of grievance\r\nand as we are of the opinion that the communication dated\r\n28.07.2022 is clearly unsustainable, the writ petition is partly <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">allowed. The communication dated 28.07.2022 is quashed and\r\nset aside and Revision Petition filed by the petitioner is\r\nmaintainable. The respondent-State is directed to consider the\r\nRevision Petition filed by the petitioner under Rule 53(2) of the\r\nRules, 1994. Needless to state that the same shall be decided on\r\nthe merits of the Revision Petition, by giving an opportunity of\r\nhearing to the petitioner and the Revision Petition be decided as\r\nearly as possible and not later than three months (12 weeks)\r\nfrom the date of receipt of copy of this order.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd15240ca4d6a4b698a6482be1c205ae5.jpeg', '6d3e461ff95e9c9ae648c5bcac6b9bcf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-22', 1, '', '', '2022-11-21 13:52:07', '2022-11-22 10:37:13');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2420, '2cqTZvjFSdsXdCuLctKcYCjfh', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'District Registrar has no power under Section 25 of the Karnataka Societies Registration Act to decide the validity of elections held in a Society. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>SA RA Govindu and others Vs The Government of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 14787 of 2022 decided on 15 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Shorn of unnecessary details, the core facts required are as\r\nfollows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The 4th respondent is the Karnataka Film Chamber of\r\nCommerce (‘Film Chamber’ for short). Elections to the said Film\r\nChamber were to be conducted on 28-05-2022 for the tenure of\r\n2022-23. The 1st petitioner was a contestant to the post of\r\nPresident in the Producers Sector and the 2nd petitioner was a\r\ncontestant to the post of Treasurer and the 3rd petitioner was a\r\ncontestant for the post of Secretary. The elections were held on\r\n28-05-2022. The petitioners alleging that the conduct of election\r\nwas illegal, improper and seeped in fraud on various grounds had\r\nregistered a complaint before the 2nd respondent/District Registrar.\r\nThe allegations, inter alia, included fraud played by the Returning\r\nOfficer. This comes to be rejected by the 2nd respondent in terms of\r\nhis order dated 8-07-2022 and rejection of the said complaint of the\r\npetitioners and consequent continuation of the newly elected\r\ncommittee drove the petitioners to this Court in the subject\r\npetition. The petitioners have also sought at the hands of this\r\nCourt by way of a writ in the nature mandamus to declare the\r\nelections held to be illegal and void with a consequent direction to\r\nconduct fresh elections to the Film Chamber</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. This Court, having entertained the petition, at the outset,\r\nhad passed an interim order that the Executive Committee\r\nconstituted pursuant to the said elections shall not take major\r\ndecisions involving finances or policies till the next date of hearing.\r\nThe said interim order is in operation even as on date.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">8. Though several submissions are made on merits of the\r\nmatter, consideration of those submissions would arise only if the\r\npetition is held to be maintainable, as the issue of maintainability,\r\nin the case at hand cuts at the root of the matter. If the petition is\r\nheld to be maintainable, all other submissions would be considered\r\nand if it is not, it would lead to a disposal lock-stock and barrel. </span><span style=\"font-size: 12pt;\">Therefore, I deem it appropriate to consider the issue of\r\nmaintainability at the threshold. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>13. On a coalesce of the judgments rendered by the Full\r\nBench of High Court of Madras, the Apex Court later affirming the\r\njudgment of the Full Bench and the judgment of the co-ordinate\r\nBench, what would unmistakably emerge is that the District\r\nRegistrar cannot assume power of a civil Court to consider the\r\nimportance of evidence in election matters in the garb of conducting\r\nenquiry under Section 25 of the Act. Conduct of elections or\r\ndeclaration of elected candidates or a direction seeking holding of\r\nfresh election will have to be before the competent civil Court. </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>If the facts obtaining in the case at hand are considered on the\r\ntouchstone of the principles laid down in the afore-quoted\r\njudgments, the unmistakable inference would be that the petition\r\nwould not be maintainable before this Court, as the petitioners have\r\nto knock the doors of the competent civil Court seeking to annul the\r\nelections.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">14. The indirect effort made to submit that petitioners are not\r\nseeking inquiry into the conduct of elections is neither here nor </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">there, as elections are over, the Executive Committee is in place\r\nand the averments in the petition point at corrupt practice like large\r\nscale rigging and several other illegalities and irregularities in the\r\nconduct of elections. It is, therefore, the petitioners have to\r\napproach the competent civil Court for appropriate relief. This Court\r\nwould not entertain the petition after the elections are over, even\r\nfor a direction to the District Registrar to enquire into the conduct\r\nof elections. No fault can be found with the order of the District\r\nRegistrar declining to entertain the complaint, as it was in the realm\r\nof challenging the elections. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. Insofar as judgment relied on by the learned senior\r\ncounsel for the petitioners in the case of ADVOCATES’\r\nASSOCIATION (supra) the same would be inapplicable to the facts\r\nof the case at hand. Even otherwise, interpreting Section 25 of the\r\nAct, there are plethora of judgments, a few of them are quoted\r\nhereinabove, which clearly hold the enquiry akin to annulment of\r\nelections cannot be the scope of Section 25 of the Act. Therefore,\r\nthe said judgment would not lend any assistance to the learned\r\nsenior counsel for the petitioners.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Writ Petition is dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'af3bf375d733f85d9206b4637e5257cc.jpeg', '3ecd04232b15ec7ccbd4691063139379.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-22', 1, '', '', '2022-11-21 14:41:51', '2022-11-22 08:53:33'),
(2421, 'm4ZcyKsKpcTcPiL1cJ71ZrqeC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Leasehold right of land given to SC/ST person cannot be considered as a grant under Section 3(b) of the Karnataka SC/ST (PTCL) Act, 1978. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nagalingappa Vs The Deputy Commissioner and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. 32645 of 2010 decided on 18 March 2016.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.N. Satyanarayana.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The short point for consideration in this writ\r\npetition is whether a leasehold right in respect of a land g</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">iven to a person belonging to Scheduled Caste or Scheduled\r\nTribe can be considered as a grant under Section 3(b) of the\r\nKarnataka Scheduled Castes and Scheduled Tribes\r\n(Prohibition of Transfer of Certain Lands) Act, 1978\r\n(hereinafter referred to as the ‘PTCL Act’).</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. Heard the learned counsel for petitioner and\r\nlearned Additional Government Advocate appearing for\r\nrespondent Nos.1 and 2 and learned counsel for respondent\r\nNo.3 and perused the material on record. As stated supra,\r\nthe short point that arises for consideration in this petition is:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\nWhether the lease in respect of the land in\r\nSy. No.91 block No.3 measuring 5 Acres made in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">favour of grandfather of respondent No.3 –\r\nLachmappa @ Barmappa could be considered as\r\na grant as defined under Section 3(b) of the PTCL\r\nAct?</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The lease made in favour of grandfather of respondent No.3\r\ncannot be considered as a grant in as much as what was\r\ngiven to him was the leasehold right in respect of the said\r\nland to cultivate and enjoy the same. No absolute right was\r\ncreated in him by way of grant as provided under the PTCL\r\nAct. In that view of the matter, as on the date when the sale\r\ndeed was executed by Smt. Bheemakka, the widow of the\r\noriginal lessee, in favour of Deveerappa, from whom\r\npetitioner’s father had purchased the said land measuring 2\r\nAcres, she had no title and therefore, the sale deed did not\r\nconvey any title to the vendor of the petitioner’s father.\r\nHowever, the father of the petitioner during his life time was\r\nin possession of the land and after his death, petitioner\r\ncontinues to be in possession of the property from 1964 till\r\nthis date. No proceeding is initiated by the Government to\r\ncancel the sale made by the said Deveerappa in favour of the\r\npetitioner. In any event, right of respondent No.3 herein, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">grandson of the original lessee, with regard to restoration of\r\n02 Acres of land sold by Smt. Bheemakka in favour of the\r\nvendor of the petitioner’s father, which prayer was sought by\r\nlate Smt. Bheemakka before Assistant Commissioner in the\r\nyear 1979-80, cannot be considered in this petition for the\r\nreason that there is no violation of the conditions of PTCL Act\r\nin selling the land in as much as it was not a ‘granted land’\r\nas defined under Section 3(b) of the PTCL Act in the first\r\nplace. Therefore, sale of 2 Acres of land by Smt. Bheemakka\r\nin favour of the vendor of the petitioner’s father herein by no\r\nstretch of imagination, can be considered as sale of the land,\r\nwhich was granted to the original lessee under the PTCL Act. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. However, the said argument is countered by\r\nlearned counsel for petitioner, Sri Rudra Gowda, by relying\r\nupon the judgment rendered by the Constitution Bench of the\r\nApex Court in the matter of Padma Sundara Rao (dead)\r\nand others Vs. State of Tamil Nadu and others. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Learned counsel tried to substantiate that the aforesaid\r\njudgment would not entitle respondent No.3 in claiming the\r\nland in question as the land, which was originally granted in\r\nfavour of his grandfather, for the reason that the statutory\r\nprovisions in the PTCL Act did not include the leasehold rights\r\nof a lessee, though he belongs to the denomination of\r\n‘Schedule Caste’ and lease cannot be considered as grant\r\nunder Section 3(b) of the PTCL Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. In fact, the Apex Court in Padma Sundara Rao’s\r\ncase (supra) while considering the manner in which a\r\nprovision of law will has to be interpreted, has observed that\r\nit is not within the domain of the Courts to legislate and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">extend the horizon of interpretation provided in the statute to\r\ninclude those of the subjects, which would not come within\r\nthe ambit of the said statutory provision and thereby, should\r\ngive legislative colour to the decision rendered by them. In\r\nthe facts and circumstances of the case, this Court is unable\r\nto accept the finding of the Assistant Commissioner and\r\nDeputy Commissioner in treating the leasehold right of\r\nLachmappa @ Barmappa, the grandfather of respondent No.3\r\nherein, as the absolute grant made in his favour and thereby,\r\ninvoking the provisions of the PTCL Act in restoring the land\r\npurchased by the petitioner herein, in favour of Smt.\r\nBheemakka and on her demise, in favour of respondent No.3,\r\nas the same is erroneous. Hence, the order passed by\r\nrespondent No.1 and the judgment rendered by respondent\r\nNo.2 are required to be set aside. While doing so, it is\r\nobserved that if the possession of the petitioner herein in\r\nrespect of the land in question is not beyond 30 years from\r\nthe date of his purchase, it is open for the State Government\r\nto initiate appropriate proceedings against him for claiming\r\nthe said land</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. With aforesaid observations, this writ petition is\r\nallowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '76a9e265ff019cf27dff271f021a5711.jpeg', '92470bc98bec864cb498e024e04b73c6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-21', 1, '', '', '2022-11-21 15:28:59', '2022-11-22 06:48:42'),
(2422, '5CXiMUEYgwaz5X22IaB1mR6a4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Neither the hardware nor the software, but the heartware is responsible”. Karnataka High Court orders recovery of excess payment of pension from the Bank officials. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nalini Devi Vs The General Manager Canara Bank Head Office and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 22058 of 2021 decided on 17 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Shorn of unnecessary details, facts in brief are as follows:-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The petitioner is the wife of one C. Sudhakar who was\r\nworking as a Second Division Assistant in the office of the Deputy\r\nCommissioner of Police, CAR (Central), Bangalore who served the\r\nDepartment from 08-10-1982 to 29-12-2004 for about 22\r\nyears and dies on 29-12-2004. After the death of the husband of\r\nthe petitioner, pension payment order for payment of family\r\npension comes to be issued in favour of the petitioner commencing\r\nfrom 30-12-2004 in terms of pension payment order dated 22-07-\r\n2005. An amount of Rs.2430/- was deposited every month into the\r\naccount of the petitioner maintained at Syndicate Bank, BWSSB\r\nBranch, Gandhinagar, Bangalore. On 07-11-2016 the petitioner\r\nvisits the Bank only to be told that she cannot operate the account\r\nas there was some excess payment made to the family pension <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">account of the petitioner. Immediately thereafter, the petitioner\r\nrepresents to the Bank requesting the Bank to unblock the account\r\nwhich would enable her to draw family pension. This was not\r\nacceded on the information that Rs.50,000/- was deposited in\r\nexcess which was more than the entitlement of the petitioner as\r\nfamily pension.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. At that juncture, the petitioner gives a representation\r\nstating that the Bank is at liberty to recover Rs.50,000/- excess\r\npension paid. The representation was submitted on 18-03-2017.\r\nEven then the account of the petitioner was not unblocked. Years\r\npassed by and the petitioner goes on representing to the Bank and\r\nmade a complaint to the Ombudsman when she received the\r\ninformation that her actual family pension was Rs.6732/- and\r\nexcess amount of Rs.2,34,158/- deposited into the account was\r\nheld in the SB account of the petitioner and was stopped from\r\nwithdrawing the same as the account was put on hold. The\r\npetitioner also complains to the competent authority at the Canara\r\nBank (‘Bank’ for short) as by then Syndicate Bank had merged into\r\nCanara Bank, seeking unblocking of her account. The last of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">representations having gone unheeded, the petitioner knocks the\r\ndoors of this Court in the subject petition seeking a direction to the\r\nBank for unhindered release of family pension qua the entitlement\r\nof the petitioner.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The petitioner is the widow of one C.Sudhakar, a Second\r\nDivision Assistant working in the office of the Deputy Commissioner\r\nof Police who died in harness on 29-12-2004. The death of the\r\nemployee in harness results in the petitioner getting entitled to\r\npayment of family pension. Accordingly, family pension was\r\ndetermined and paid to the petitioner in terms of the pension\r\npayment order dated 22-07-2005. The pay scale of the employee\r\nat the time of his death on 29-12-2004 was Rs.3300-6300. In\r\nterms of the said pay scale, since the employee had died in harness\r\ntill the date of his superannuation the petitioner was entitled for full\r\npension of the employee, family pension was thus determined at\r\nRs.2430/- plus admissible dearness allowance.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. If the trail of representations as extracted hereinabove\r\nare noticed, it would demonstrate a callous, lackadaisical and\r\nirresponsible attitude of the officers of the Bank and the 5th\r\nrespondent or the office of the Accountant General who had\r\nprocessed the papers of the petitioner for family pension. The\r\npetitioner, wife of the employee, who died in harness, and a senior\r\ncitizen has been made to roam from pillar to post, mentally\r\nharassed, first to set her pension right, and then asking unblocking\r\nof the account, unmarking the hold on Rs.2,34,158/-. When the\r\npetitioner has come to know that there was excess payment made\r\ninto her account, the petitioner offered to recover the said excess\r\namount of Rs.50,000/- by way of installments. Five years pass by;\r\nno action is taken on the representation of the petitioner and in the\r\n5\r\nth year, again the account of the petitioner is blocked, now for the\r\nreason that excess pension that is paid to the petitioner up to 2021\r\nwas Rs.2,34,158/-.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. Therefore, it is on account of the Bank or the 5th\r\nrespondent who sleep over the issue for 5 long years while excess\r\npayment goes on getting deposited into the account. The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner, at the outset, offered that Rs.50,000/- which was excess\r\nin 2016 to be withdrawn from her account and her pension account\r\nbe set right. To the plea or the request of the petitioner, the\r\nofficers turned a deaf ear and a blind eye and have apparently\r\nharassed the petitioner, a senior citizen. The Bank officials wake up\r\nfrom deep slumber in the year 2021 and again generate the same\r\nharassment, towards which the petitioner has been asking for the\r\nlast 6 years that her pension be set right and the amount so paid in\r\nexcess, which was at that point in time was Rs.50,000/- be\r\nrecovered.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. The result of excess pension is directly attributable to the\r\nOfficers of the Bank who had a duty to correct the pension and\r\nrecover excess amount way back in the year 2016 when the\r\npetitioner had offered such recovery to be made. The Bank having\r\nnot done so for 6 years, cannot now seek to recover even a rupee\r\nfrom the hands of the petitioner. This would not mean that no\r\nrecovery in the case at hand shall be made, as the excess pension\r\nthat is paid is not of the petitioner nor the money belonging to the\r\nsuch officers, ‘it is public money’. Therefore, recovery shall be\r\nmade from the officers of the Bank who have failed to act for all\r\nthese years and set the pension of the petitioner right. Such\r\nofficers shall be identified by the Bank and proceedings be initiated\r\nagainst them for such recovery, strictly in a manner known to law\r\nand in consonance with the principles of natural justice.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. If there is any section of the society that has to be given\r\ncare and compassion over and above other classes are those senior <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">citizens or the elderly class. It must be remembered that utterance\r\nof any unkind word or an attitude of being unkind towards them\r\nwould be enough to make tears roll down their cheeks. Therefore,\r\nauthorities particularly, which are declared to be a State under\r\nArticle 12 of the Constitution of India or any authority performing\r\npublic function has to now wake up and redress the grievances of\r\nthose citizens, particularly, pensioners or any widow drawing family\r\npension, immediately, so that they do not suffer. The feeble voices\r\nof the pensioners and the old, cannot be left to be turned a deaf ear\r\nand their problems cannot also be turned a blind eye. Therefore,\r\nthis Court admonishes the act of the officers of the Bank who have\r\nallegedly harassed the petitioner over payment of pension and have\r\ndisplayed apathy towards her grievances and would make it clear\r\nthat any such iteration would be viewed seriously. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. A parting observation, in the case at hand, may not be\r\ninapt. We are in a digital age, excess payment is immediately\r\nreflected on the screens of computers through which the amounts\r\nare disbursed. It is only to be noticed by the person operating the\r\ncomputer or the person who takes the decision on transferring the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">monthly pension. In such a case, neither the hardware nor the\r\nsoftware would be responsible, but it is the heartware, heartware\r\nI mean, the person who handles the account and transfers the\r\namount through the computer. It is that heartware that has to\r\ndetect that something is amiss. If only excess payment is detected\r\nat early stages, there would be no loss caused to the Bank/State or\r\nagony to the holder of an account. It is always the folly of the\r\nofficers who handle such accounts, who either do not act properly\r\nor display lackadaisical attitude towards the problems of its\r\ncustomers even if brought to their notice, particularly, in matters\r\nconcerning pension. Officers who display such remissness should\r\nnot be tolerated. Option of initiating disciplinary proceedings\r\nagainst those officers for imposing punishment for the act of\r\nderelict of duty should be explored, so that tax payers money is not\r\nput at jeopardy.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Writ Petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '154c258f2e67786071ccd8a9a7252ca8.jpeg', 'b3a8c076abcfdc5e4f742f8f3eeae60b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-23', 1, '', '', '2022-11-22 12:58:06', '2022-11-23 06:24:35'),
(2423, 'JKErAZPwa2A80zeZY6IJ8YYtf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'An order of acquittal adds up to the presumption of innocence in favour of the accused and hence the Appellate Court has to be relatively slow in reversing the order. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State of Karnataka Vs Murali and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1371 of 2017 decided on 9 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Somashekar and Justice C.M. Joshi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In this appeal the appellant/State is challenging\r\nthe judgment of acquittal rendered by the trial Court in\r\nS.C.No.86/2015 dated 02.03.2017 acquitting the\r\naccused for the offences punishable under Sections\r\n366, 342, 506 of IPC and Section 5(1) punishable under\r\nSection 6 of the POCSO Act, 2012. In this appeal\r\nseeking to set-aside the judgment of acquittal by\r\nconsidering the grounds urged in this appeal and\r\nconvict the accused for the offences which were leveled\r\nagainst him</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The factual matrix of the appeal is as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> It is transpired in the case of the prosecution that\r\naccused is the neighbour in the locality where the\r\ncomplainant was also residing with her parents. He had\r\nfallen in love with the complainant and making her to\r\nbelieve that he would marry her, took her to his house\r\nand had physical contact with the victim when his\r\nparents were in the house. Despite of refusal, he had\r\nphysical contact so many times by taking her to his\r\nhouse. The complainant/victim was under depression\r\nwhen the accused went back to Bangalore. Therefore,\r\nher parents took her to children help line. Before the\r\nofficials of children help line, she had stated about the\r\nlover affairs and physical contact in between her and\r\nthe accused. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">14. Whereas Section 506 of IPC relating to\r\ncriminal intimidation extended which was committed by\r\naccused extending threat to the victim and the same\r\nshould be established by the prosecution and it is the\r\ndomain vested with the prosecution alone. The intent </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">mentioned was to cause alarm and the accused was\r\nclearly guilty of the criminal intimidation and even\r\nsecuring the conviction. But it is the domain vested\r\nwith the prosecution to establish the guilt against the\r\naccused for the aforesaid offences relating to criminal\r\nintimidation by facilitating worthwhile evidence and also\r\nacceptable evidence. But in the instant case, no\r\nevidence on the part prosecution has been coming forth\r\nto appreciate and also rendering conviction, but the trial\r\nCourt had appreciated the evidence relating to\r\nabduction, wrongful confinement and criminal\r\nintimidation and even the aggravated sexual intercourse\r\nagainst the victim as per the provisions of the special\r\nenactment of POCSO. But no ingredients relating to all\r\nthese offences have been established by the prosecution\r\neven though subjected to examination and PW.9 victim\r\nand PW.10 being her father but their evidence on the\r\npart of the prosecution runs contrary to each other and\r\ncontradictory to the evidence of PWs.11 and 12. PW.12 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">being the IO laid the charge sheet against the accused\r\npersons by recording the statement of witnesses and so\r\nalso securing the material documents relating to the age\r\nof the victim girl and that documents were secured from\r\nthe school authorities. Even though those documents\r\nhave been secured but the prosecution has miserably\r\nfailed to establish the guilt against accused beyond all\r\nreasonable doubt</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. Insofar as Section 342 of IPC relating to\r\nwrongful confinement, PW.9 in her evidence has stated\r\nthat accused used to take her to his house and so also,\r\nhe used to visit the house of the complainant, when\r\nthere were nobody at the house. If these allegations are\r\ntrue, certainly she would have reported to the parents.\r\nThe ingredients required under Section 342 or as to the\r\nconformity of the victim to certain place, if that is so,\r\nthe victim would have informed the same and would\r\nhave filed complaint, but no such report is made by the\r\nvictim. If at all the victim were to be confined to certain <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">place, the parents would have filed the complaint.\r\nPW.10 has not stated anything about keeping the victim\r\nunder conformity by the accused and also stated about\r\nthe love affair between accused and victim. In the\r\nevidence of PW.10 also there is no material so as to the\r\nconfinement of the victim to any particular place.\r\nUnless there is evidence facilitated by the prosecution it\r\ncannot be arrived at the conclusion that the prosecution\r\nhas proved the guilt against the accused for securing\r\nconviction.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. Further in the case of Babu vs. State of\r\nKerala (2010)9 SCC 189 it is held that criminal LawAppeal against acquittal-Powers of appellate court-held- <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Appellate court in dealing with the cases in which the\r\ntrial courts have acquitted the accused/should bear in\r\nmind that trial courts acquittal bolster the presumption\r\nthat he is innocent - Appellate court must give due\r\nweight and consideration to the decision of trial court as\r\nthe trial court had distinct advantage of watching the\r\ndemeanour of witnesses and was in a better position to\r\nevaluate the credibility of witnesses. </span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. But in the given facts and circumstances of\r\nthe case whereby the State has preferred an appeal by\r\nchallenging the acquittal judgment and seeking\r\nintervention by re-appreciation of evidence and so also,\r\nrevisiting of the impugned judgment of acquittal\r\nrendered by the trial Court. In this regard, it is relevant\r\nto refer the judgment rendered by the Hon’ble Supreme\r\nCourt in Lalit Kumar Sharma And Ors. vs\r\nSuperintendent And Remembrancer reported in AIR\r\n1989 SC 2134 it is held that “it is now well settled that\r\nthe power of an appellate Court to review evidence in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appeals against acquittal is as extensive as its\r\npowers in appeals against convictions, but that power is\r\nwith a note of caution that the appellate\r\nCourt should be slow in interfering with the orders of\r\nacquittal unless there are compelling reasons\r\nto do so.” Therefore, keeping in view the ratio of\r\naforesaid reliance and so also, keeping in view the\r\nevidence of PWs.5 and 7 and inclusive of PWs.9 and 10,\r\nwe are of the opinion that the trial Court had\r\nappreciated the evidence in proper perspective and also\r\nassigned justifiable and sound reasons in rendering the\r\nacquittal judgment. There is no perversity, absurdity or\r\nillegality to interfere with the impugned judgment of\r\nacquittal rendered by the trial Court. Therefore, in view\r\nof the aforesaid reasons and findings, we are of the\r\nconsidered opinion that the appeal preferred by the\r\nState deserves to be rejected being devoid of merits.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The appeal preferred by the appellant / State\r\nunder Section 378(1) and (3) of Cr.P.C. is hereby\r\nrejected. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3c0df429afe55bdcb872d1e6e59b1938.jpeg', '9288875149a0f941db40b5fd66e5fa6e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-24', 1, '', '', '2022-11-22 13:07:47', '2022-11-24 03:22:18'),
(2424, 'PzgqR1tbpNmwi8CIZxEa258sG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When urgency clause in invoked under Land Acquisition Act, 1894, the State must act with quite promptitude failing which the acquisition proceedings are liable to be quashed. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Town Panchayat Vs Krishnappa and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.A. 1006 of 2014 decided on 7 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Alok Aradhe and Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Facts giving rise to filing of this appeal\r\nbriefly stated are that land bearing survey number 64\r\nsituated at Koratagere Town Kasaba, Tumkur District\r\nwas an Inam land (hereinafter referred to as the\r\n\'[schedule land\' for short) was governed by the\r\nprovisions of Religious and Charitable Inams Abolition\r\nAct, 1955. The father of respondent was a permanent\r\ntenant in respect of aforesaid land who was granted <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">occupancy rights in respect of schedule land\r\nmeasuring 17 acres and 10 guntas.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The appellant is the town Panchayat\r\nconstituted under the provisions of Karnataka\r\nMunicipalities Act, 1964. The Panchayat was in need\r\nof schedule land as well as land measuring 7 acres of\r\nSurvey No.64 for the purposes of Solid Waste\r\nManagement at Koratagere Town. Thereupon,\r\nproceeding under the Act were set in motion. A\r\nNotification under Section 4(1) invoking urgency\r\nprovision under Section 17(1) of the Act was issued on\r\n09.12.2004, by which land measuring 3.03 acres was\r\nnotified for acquisition.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">6. The validity of the aforesaid notification\r\nwas assailed by the respondents in a writ petition. The\r\nlearned Single Judge by an order dated 05.12.2013 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">inter alia held that in the facts and circumstances of\r\nthe case, there was no justification for invocation of\r\nthe provisions of Section 17 of the Act. It was further\r\nheld that since, an award has been passed beyond a\r\nperiod of two years from the date of publication of\r\ndeclaration under Section 6 of the Act, the same has\r\nlapsed under Section 11A of the Act. Accordingly, the\r\nproceedings for acquisition of the land initiated by the\r\nState Government were quashed. In the aforesaid\r\nfactual background, this appeal has been filed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. We have considered the submissions made\r\non both sides and have perused the records. Twin\r\nissues arise for consideration in this appeal Firstly\r\nwhether the proceeding has lapsed in view of Section\r\n11 of the Act, and secondly, whether the State\r\nGovernment was justified in invoking the urgency\r\nprovisions under Section 17 of the Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. We have perused the record. Admittedly, in\r\nthe instant case, the collector has not tendered 80% of\r\nthe amount of compensation before taking the\r\npossession of the land in question i.e., on or before\r\n09.11.2006. Therefore, in view of the law laid down by\r\nthree-judge bench of Hon\'ble Supreme Court in\r\nDELHI AIRTECH SERVICES PRIVATE LIMITED\r\n(SUPRA), the provisions of Section 11A of the Act\r\napply to the fact situation of the case. The notification\r\nin respect of acquisition of land measuring 3.03 acres\r\nhas been issued on 09.12.2004. The final notification\r\nwas issued on 16.02.2006 and the award was passed\r\nbeyond a period of 2 years i.e., on 21.06.2008.\r\nTherefore, the learned Single Judge has rightly\r\nconcluded that the proceedings in respect of land\r\nmeasuring 3.03 acres of survey number 64 situated at\r\nKoratagere Town Kasaba, Tumkur District have\r\nlapsed under Section 11 of the Act. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>15. In the instant case, the notification under\r\nSection 4(1) read with Section 17(1) of the Act was\r\nissued on 09.12.2004. If there was really an urgency\r\nin acquisition of the land, the appellant ought to have\r\nacted with quite promptitude. However, final\r\nnotification under Section 6 of the Act was issued\r\nafter a period of 14 months on 16.02.2006 and\r\nthereafter, nearly after a period of approximately 9\r\nmonths, the possession of the land in question was\r\ntaken. Therefore, it is evident that there was no\r\nurgency in acquisition of the land in question and the\r\nState Government was not justified in invoking the\r\nurgency provision as contained in Section 17(1) of the\r\nAct.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16. Thus, it can safely be inferred that right of\r\nthe respondent to a hearing under Section 5A of the\r\nAct has been taken away without any justifiable </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reason. Even otherwise, learned counsel for the\r\nappellant has stated that appellant does not require\r\nthe aforesaid land.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 17. Learned counsel for the appellant has\r\nsubmitted that since, the appellant has utilised the\r\nland in question, therefore, the relief is be moulded in\r\nfacts of the case. From perusal of the photographs\r\nannexed with the petition, we find that the appellant\r\nhas only constructed a boundary wall and has\r\ndumped garbage on the land in question. Therefore,\r\nthe land in question measuring 3.03 acres remains\r\nan open land. Therefore, the question of moulding the\r\nrelief and permitting the appellant to retain the\r\npossession of the land in question does not arise as\r\nthe respondents cannot be deprived of their\r\nconstituted right under Article 300A of the\r\nConstitution of India.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In view of preceding analysis we do not find any\r\nmerit in this appeal the same fails and is here by\r\ndismissed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '64a0bf0fab33c97b51525158717ba2e5.jpeg', '4cbc145c758cfce869e3ba30f73eed89.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-22', 1, '', '', '2022-11-22 14:11:42', '2022-11-23 11:58:48');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2425, 'czMZAfWAelUeWHObYC6lNSUhP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When quality supervisor is appointed by a Company under the Fertilizer (Control Order), director of Company cannot be prosecuted for the offences under the Essential commodities Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Samyukta Agritech Pvt Ltd and others Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 102645 of 2022 decided on 28 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. A private complaint has been filed under Section\r\n200 of Cr.P.C for the offences punishable under Sections 7 and\r\n9 of the Essential commodities Act, 1955 and Section 34 of IPC,\r\nalleging that the petitioners who are the manufacturers have\r\nnot manufactured the subject fertilizer as per the Schedule 1\r\npart B Fertilizer (Control Order, 1985) and Rule 19(3) of\r\nFertilizer (Control Order, 1985).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">7. Rule 24 of the Fertilizer (Control Order, 1985)\r\nspecifies that the every manufacturing organization importer\r\nand pool handling agency shall appoint in that organization and\r\nin consultation with the Central Government, an officer, who\r\nshall be responsible for compliance with the provision of this\r\norder. In the instant case the petitioner No.1, which is company\r\nhas appointed accused No.5 to maintain the quality of the\r\nfertilizer manufactured by the petitioner No.1-Company. Hence,\r\nthe accused No.5 who has been appointed in terms of Rule 24\r\nof the Fertilizer (Control Order, 1985) is responsible to maintain </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the quality of the fertilizer manufactured. Hence petitioners\r\nwho are not responsible for compliance of provision of this\r\norder cannot be prosecuted for contraventions of the order\r\n1985.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> Criminal petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2ac82da89793496e0b4dcda2630c1ea4.jpeg', 'fa4db8b6f79fa173d533fe80d2dc4c51.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-23', 1, '', '', '2022-11-22 16:00:07', '2022-11-23 09:21:11'),
(2426, 'H4HRezLcYQhK1OQY4SblfmjcD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal prosecution launched under the Insecticides Act against director of company without arraigning the Company as an accused is not maintainable. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sanjeev Moolraj Thakkar Vs R.A. Anagoudar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 103151 of 2022 decided on 28 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. A private complaint is filed by the respondent under\r\nSection 200 of Cr.P.C. alleging that bio-products manufactured\r\nby the company were sent to the analyst for test, and thereafter\r\nthe analyst submitted the report states that bio products\r\nmanufactured by the company were of sub-standard quality.\r\nThe learned Magistrate after perusing the complaint registered\r\nthe case against the petitioner-accused for the offence\r\npunishable under Section 29(1) of Insecticides Act, 1968. Taking\r\nexception to the same, this petition is filed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Section 33 of the Act specifies that whenever an\r\noffence under this Act has been committed by the Company,\r\nevery person who at the time of the offence was committed was\r\nin-charge or responsible to the company for conduct of the\r\nbusiness of the company as well as the company shall be\r\ndeemed to be guilty of the offence. In the present case, offence\r\naforesaid is committed by the company and the complaint is\r\nfiled without arraying the company as accused to the complaint\r\nand the same is not maintainable, since the petitioner, who is\r\ndirector of the company cannot be held variously guilty of the\r\noffence. Resultantly, the complaint filed by the respondent\r\nwithout arraying the company as accused is not maintainable.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. In view of the preceding analysis, the impugned\r\nproceeding pending against the petitioner is required to be\r\nquashed<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The criminal petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7abe46642bfc5130949b7bf6468d3e8b.jpeg', 'eef51788c07c2a4cdc754ccfcb2b637f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-23', 1, '', '', '2022-11-22 16:06:39', '2022-11-23 03:18:30'),
(2427, 'Zpg8KWeAz3klGstLcJtptx5ex', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“You cannot punish helpless senior citizen for your mistakes” Karnataka High Court restrains State/Bank from recovering excess pension from widow of the pensioner.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Nalini Devi Vs The General Manager Canara Bank Head Office and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 22058 of 2021 decided on 17 November 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice M. Nagaprasanna.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. Shorn of unnecessary details, facts in brief are as follows:-</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The petitioner is the wife of one C. Sudhakar who was working as a Second Division Assistant in the office of the Deputy Commissioner of Police, CAR (Central), Bangalore who served the Department from 08-10-1982 to 29-12-2004 for about 22 years and dies on 29-12-2004. After the death of the husband of the petitioner, pension payment order for payment of family pension comes to be issued in favour of the petitioner commencing from 30-12-2004 in terms of pension payment order dated 22-07- 2005. An amount of Rs.2430/- was deposited every month into the account of the petitioner maintained at Syndicate Bank, BWSSB Branch, Gandhinagar, Bangalore. On 07-11-2016 the petitioner visits the Bank only to be told that she cannot operate the account as there was some excess payment made to the family pension <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">account of the petitioner. Immediately thereafter, the petitioner represents to the Bank requesting the Bank to unblock the account which would enable her to draw family pension. This was not acceded on the information that Rs.50,000/- was deposited in excess which was more than the entitlement of the petitioner as family pension.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">4. At that juncture, the petitioner gives a representation stating that the Bank is at liberty to recover Rs.50,000/- excess pension paid. The representation was submitted on 18-03-2017. Even then the account of the petitioner was not unblocked. Years passed by and the petitioner goes on representing to the Bank and made a complaint to the Ombudsman when she received the information that her actual family pension was Rs.6732/- and excess amount of Rs.2,34,158/- deposited into the account was held in the SB account of the petitioner and was stopped from withdrawing the same as the account was put on hold. The petitioner also complains to the competent authority at the Canara Bank (‘Bank’ for short) as by then Syndicate Bank had merged into Canara Bank, seeking unblocking of her account. The last of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">representations having gone unheeded, the petitioner knocks the doors of this Court in the subject petition seeking a direction to the Bank for unhindered release of family pension qua the entitlement of the petitioner.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">9. The petitioner is the widow of one C.Sudhakar, a Second Division Assistant working in the office of the Deputy Commissioner of Police who died in harness on 29-12-2004. The death of the employee in harness results in the petitioner getting entitled to payment of family pension. Accordingly, family pension was determined and paid to the petitioner in terms of the pension payment order dated 22-07-2005. The pay scale of the employee at the time of his death on 29-12-2004 was Rs.3300-6300. In terms of the said pay scale, since the employee had died in harness till the date of his superannuation the petitioner was entitled for full pension of the employee, family pension was thus determined at Rs.2430/- plus admissible dearness allowance.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">13. If the trail of representations as extracted hereinabove are noticed, it would demonstrate a callous, lackadaisical and irresponsible attitude of the officers of the Bank and the 5th respondent or the office of the Accountant General who had processed the papers of the petitioner for family pension. The petitioner, wife of the employee, who died in harness, and a senior citizen has been made to roam from pillar to post, mentally harassed, first to set her pension right, and then asking unblocking of the account, unmarking the hold on Rs.2,34,158/-. When the petitioner has come to know that there was excess payment made into her account, the petitioner offered to recover the said excess amount of Rs.50,000/- by way of installments. Five years pass by; no action is taken on the representation of the petitioner and in the 5 th year, again the account of the petitioner is blocked, now for the reason that excess pension that is paid to the petitioner up to 2021 was Rs.2,34,158/-.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">14. Therefore, it is on account of the Bank or the 5th respondent who sleep over the issue for 5 long years while excess payment goes on getting deposited into the account. The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner, at the outset, offered that Rs.50,000/- which was excess in 2016 to be withdrawn from her account and her pension account be set right. To the plea or the request of the petitioner, the officers turned a deaf ear and a blind eye and have apparently harassed the petitioner, a senior citizen. The Bank officials wake up from deep slumber in the year 2021 and again generate the same harassment, towards which the petitioner has been asking for the last 6 years that her pension be set right and the amount so paid in excess, which was at that point in time was Rs.50,000/- be recovered.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">16. The result of excess pension is directly attributable to the Officers of the Bank who had a duty to correct the pension and recover excess amount way back in the year 2016 when the petitioner had offered such recovery to be made. The Bank having not done so for 6 years, cannot now seek to recover even a rupee from the hands of the petitioner. This would not mean that no recovery in the case at hand shall be made, as the excess pension that is paid is not of the petitioner nor the money belonging to the such officers, ‘it is public money’. Therefore, recovery shall be made from the officers of the Bank who have failed to act for all these years and set the pension of the petitioner right. Such officers shall be identified by the Bank and proceedings be initiated against them for such recovery, strictly in a manner known to law and in consonance with the principles of natural justice.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">17. If there is any section of the society that has to be given care and compassion over and above other classes are those senior <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">citizens or the elderly class. It must be remembered that utterance of any unkind word or an attitude of being unkind towards them would be enough to make tears roll down their cheeks. Therefore, authorities particularly, which are declared to be a State under Article 12 of the Constitution of India or any authority performing public function has to now wake up and redress the grievances of those citizens, particularly, pensioners or any widow drawing family pension, immediately, so that they do not suffer. The feeble voices of the pensioners and the old, cannot be left to be turned a deaf ear and their problems cannot also be turned a blind eye. Therefore, this Court admonishes the act of the officers of the Bank who have allegedly harassed the petitioner over payment of pension and have displayed apathy towards her grievances and would make it clear that any such iteration would be viewed seriously. </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">18. A parting observation, in the case at hand, may not be inapt. We are in a digital age, excess payment is immediately reflected on the screens of computers through which the amounts are disbursed. It is only to be noticed by the person operating the computer or the person who takes the decision on transferring the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">monthly pension. In such a case, neither the hardware nor the software would be responsible, but it is the heartware, heartware I mean, the person who handles the account and transfers the amount through the computer. It is that heartware that has to detect that something is amiss. If only excess payment is detected at early stages, there would be no loss caused to the Bank/State or agony to the holder of an account. It is always the folly of the officers who handle such accounts, who either do not act properly or display lackadaisical attitude towards the problems of its customers even if brought to their notice, particularly, in matters concerning pension. Officers who display such remissness should not be tolerated. Option of initiating disciplinary proceedings against those officers for imposing punishment for the act of derelict of duty should be explored, so that tax payers money is not put at jeopardy.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">ORDER</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(i) Writ Petition is allowed. </span></p>', '572f088aa4872b42d1c5c81e57e953d0.jpeg', '97401b5f473132bab6ad90d2fe5ecd22.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-24', 1, '', '', '2022-11-23 11:29:39', '2022-11-24 10:16:11'),
(2430, 'tyVzrUD3IGzYbpq9QkZx1MKYy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Matka gambling. Owner of the premises is also liable under the Karnataka Police Act though he was not present when the Police conducted the raid. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ramanji Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 10639 of 2022 decided on 7 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Natarajan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This petition is filed by the petitioner-accused No.2\r\nunder Section 482 of Cr.P.C. for quashing the criminal\r\nproceedings in C.C.No.4389/2021 pending on the file of\r\nPrl. Civil Judge and JMFC, Pavagada in respect of Crime\r\nNo.213/2021 of Pavagada Police Station, Madhugiri SubDivision, Tumakuru District for the offence punishable\r\nunder Section 78(3) of the Karnataka Police Act, 1963 (for\r\nshort \'K.P. Act\')</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The case of the prosecution is that the suo\r\nmotu complaint registered by the Police against accused\r\nNo.1 for the above said offence. Subsequently, the Police\r\nfiled charge-sheet against this petitioner as accused No.2\r\nfor the offence punishable under Section 78(3) of the K.P. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Act alleging that on the credible information on\r\n27.09.2021, the Police raided the spot where accused No.1\r\nfound playing Matka assuring Rs.70/- for one rupee, where\r\nthe customers ran away and accused No.1 found on the\r\nspot. Therefore, they seized the cash, articles and ball\r\npen. Then they given notice to him to appear before the\r\nPolice under Section 41 of Cr.P.C. Subsequently, they\r\nregistered NCR based upon the panchanama, then the\r\nrequisition sent to the Magistrate, obtained permission\r\nunder Section 155(2) of Cr.P.C., then the FIR has been\r\nregistered, they investigated the matter and filed the\r\ncharge-sheet against this petitioner by showing accused\r\nNo.2 as absconding which is under challenge.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. Having heard the arguments and on perusal of\r\nthe records, the main three contentions raised by the\r\nlearned counsel are that (1) before registering FIR, the\r\nPolice have conducted panchanama which is against the\r\nprovisions of Section 154 of Cr.P.C. (2) the Police have\r\nfiled the charge-sheet within six days of registering the FIR\r\nwhich is not correct and (3) the petitioner is not present on\r\nthe spot and playing gambling is punishable under Section\r\n78(3) of the K.P. Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. Subsequently, it is an admitted fact that the\r\ninformation given to the Magistrate seeking permission and\r\nthe permission also rightly accorded by the learned\r\nMagistrate. The Police have registered the FIR on\r\n28.09.2021 on the next date of the obtaining the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">permission. Subsequently, the Police investigated the\r\nmatter and filed charge-sheet within six days. As per\r\nSection 57 of the Cr.P.C., where the Police not able to\r\ncomplete the investigation within 24 hours, then the\r\naccused shall be produced before the Magistrate.\r\nOtherwise, they can obtain the permission of the\r\nMagistrate for extending the custody of the accused up to\r\n60 days or 90 days as per Section 167 of Cr.P.C. Such\r\nbeing the case, even the Police have authority to file\r\ncharge-sheet within a day by completing the investigation.\r\nSuch being the case, the second contention raised by the\r\nlearned counsel is not acceptable that Police have no\r\nauthority to file charge-sheet within six days does not\r\narise.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 9. The next contention raised by the learned\r\ncounsel is that the petitioner is not present on the spot in\r\norder to punish under Section 78(3) of K.P. Act. In this\r\nregard, Section 78(1) of the K.P. Act as well as Section\r\n78(1)(B) of the K.P. Act reveals that the owner, occupier </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and other person also liable for punishment. The definition\r\nclearly stated that the owner also liable other than the\r\nperson who actually conducting the Matka and gambling.\r\nSection 78(3) of K.P. Act is only a punishment provision.\r\nSuch being the case, the contention of the learned counsel\r\nthat the petitioner is merely not present on the spot, but it\r\ncannot be said to be not committed any offence. In fact\r\naccused No.2 is said to be the owner and accused No.1\r\nwas conducting the Matka and accused No.1 giving entire\r\nmoney to this petitioner. Of course, it may be based upon\r\nthe voluntary statement, but, is the voluntary statement\r\nadmissible or not admissible are when appreciation of\r\nevidence is considered only during the trial, but, it cannot\r\nbe a ground for quashing the very charge-sheet. Such\r\nbeing the case, merely the Police have not cited any\r\nindependent witness in the charge sheet, but, that itself is\r\nnot a ground to quash the criminal proceedings. Therefore,\r\nI am of the view that the petition is devoid of merits and\r\nliable to be dismissed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Accordingly, the petition is dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6710b2eb52344e854c423bccb843c7fc.JPG', 'd22324285efb8e78d80b9abf123b9c6f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-26', 1, '', '', '2022-11-24 12:10:02', '2022-11-26 06:19:42'),
(2428, 'lTvf7wOLX5sdTbfsSZAAfd8ok', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land Acquisition. Landowners cannot be compelled to pay the development charge for the development which has already taken place, only for a parcel of land to which they have not given compensation up to decades. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Revenue Divisional Officer and another Vs Ismail Bhai and others.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Civil Appeal 8727-28 of 2022 decided on 22 November 2022.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Justice S. Abdul Nazeer and Justice J.K. Maheshwari. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. The present case is having history of repeated litigation by land owners to get compensation of the land owned by them. The land owners’ land admeasuring area of Ac 3.23 guntas in Survey No. 268 of Attapur Village, Rajendranagar Mandal, Ranga Reddy District was sought to be acquired for the purpose of extension of the Nehru Zoological Park. The Notification under Section 4(1) of the Land Acquisition Act, 1894 (for short “L.A. Act”) and final Notification under Section 6 were issued on 19.03.1981 and 09.04.1981 respectively. Despite taking possession, award was not passed and no amount of compensation was paid. The land owners had filed Writ Petition No. 17119 of 1996 before the Andhra Pradesh High Court, which was disposed vide order dated 22.04.1997 directing the respondents (Revenue Department) to pass an award within a period of three months from the date of receipt of the order. Only thereafter award was passed in case No. 1/1844/89 on 07.06.1997 and a meagre compensation @ Rs. 6 per sq. yard was awarded to the land owners. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. The land owners submitted representation asking reference under Section 18 of L.A Act, which was not responded, forcing them to approach again the High Court. The land owners filed Writ Petition No. 5676 of 2003 which was disposed of on 18.04.2003 directing the Land Acquisition Officer to take action to make reference within six weeks. Even after direction by the High Court, reference was not made, however the land owners filed Contempt Case No. 1668 of 2004. After issuing notice in contempt, reference was made by the Land Acquisition Officer to the Ist Additional Senior Civil Judge, Ranga Reddy District which was registered as O.P. No. 205 of 2005. The Reference Court made the award on 03.09.2012 directing respondents to pay compensation to the land owners @ Rs. 250 per sq. yard with solatium and interest. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. After having heard learned senior counsel for the parties and on perusal of the material brought on record, it is apparent that the acquisition of land was made in the year 1981. Indisputably, the land acquired is situated in a highly developed area of the twin cities having amenities of water, electricity, drainage, telephone, transport etc. The only sale deed filed by the claimants Exb. A­1 dated 21.09.1981 of village Bahadurpur which is of adjacent village because no sale deed of village Attapur in the said year was executed. As per topo sketch Exb. A­4, the distance between the two villages Bahadurpur and Attapur is 1320 meters. The value of the said land as per said sale deed was Rs. 200/­ per sq. yard. Exbs. A2 and A3 are the decrees passed in two cases in which the compensation has been fixed @ Rs. 250/­ per sq. yard of the land acquired at the same time. The said documents find support from the testimony of PW­1 and PW­ 2. The departmental witness RW­2 in his statement admitted that in Katedan Village, an industrial estate is situated at the distance of 3 1?2 k.m. from Attapur Village. The Agricultural University, National Police Academy is also nearby. The High Court of Andhra Pradesh is also situated within a distance of 3 K.M. from the land acquired. The said land is required for laying the filter beds for Nehru Zoological Park. The evidence as produced by the land owners has not been rebutted by filing any document. On the contrary, the departmental witness has admitted before the Reference Court that the acquired land of the village is a prominent area within the vicinity of the city of Hyderabad. In absence of having any material on record, in our view, the Reference Court rightly relied on Exb. A­1 sale deed of adjacent Village Bahadurpur. The acquired land may have been situated in Village Attapur but it is adjacent to Village Bahadurpur, where the land value was fixed as Rs. 200 per sq. yard. While granting the compensation of the adjacent piece of land, the Court decided value @ Rs. 250/­ per sq. yard as mentioned in decrees Exbs. A­ 2 & A­3. The D.O. letter of Revenue Development Officer dated 28.8.1991 acknowledges minimum value @ Rs. 200 per sq. yard on the date of acquisition. It is also relevant to observe that after sending the matter for mediation, Joint Memorandum of Compromise was entered into by the Revenue Divisional Officer, wherein the Mediator fixed the rate @ Rs. 350/­ per sq. yard in place of Rs. 500/­ per sq. yard as agreed by the Revenue Department. In Recall Petitions, the said joint memorandum of compromise was challenged only on the ground that such compromise was signed without permission of the superior officer without challenging that the value of land as offered is on higher side. Therefore, in our view, the High Court committed an error in computing the compensation @ Rs. 100 per sq. yard ignoring the unrebutted documents produced by the land owners and without any cogent material on record, by applying reverse calculation. In our view, as per the testimony of the departmental witness RW­2, it is clear that the land acquired is near to the Agricultural University, National Police Academy and High Court of A.P., which is now in the heart of the city of Hyderabad. Considering the aforesaid and, taking note of the date of acquisition i.e. 1981 which is about 40 years ago, the value of the said land cannot be computed at the rate less than Rs. 250/­ per sq. yard which is supported by the evidence brought on record by the land owners. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. We now revert to the issue raised in the appeal filed by the Revenue Department on the point of deduction of development charge and the area of the land used for development. Recently in the case of Reddy Veerana vs. State of Uttar Pradesh and Others 2022 SCC Online 562, the deduction of the development charge was denied. The facts of the present case is not uncommon to the said case. As discussed above, it is apparent that the land in the present case was acquired 40 years back in the year 1981 and the compensation was decided by LAO after litigating in courts only @ Rs. 6 per sq. yard. The land acquired is now in the heart of city of Hyderabad where the cost of the land has been increased more than 100 times. The development of the city has already taken place. The land owners, whose land has been utilized 40 years back, now cannot be compelled to pay the development charge for the development which has already taken place, only for a parcel of land to which they have not given compensation up to decades. Therefore, the plea taken by the Revenue Department sans merit. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. In view of the foregoing, the appeals filed by the land owners are allowed and the appeals filed by the Revenue Department are dismissed. The impugned judgment passed by the High Court stands set­aside, restoring the order of the Reference Court. The amount of compensation, as determined by the Reference Court, be calculated and be paid now within a period of two months from the date of this judgment. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the facts of the case, the parties to bear their own costs.</b><o:p></o:p></p>', '732991aa2ac486614e1e81a912e1e19e.jpeg', 'c57ef77d95ed2311b353da6836b701b3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-29', 1, '', '', '2022-11-23 11:46:13', '2022-11-29 06:38:04'),
(2431, 'TPxNYQQ94A5Kuucwg6WE1SaLq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Order of temporary injunction cannot be challenged by way of a Writ Petition under Article 227 bypassing the alternative remedy. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Hombale Films LLP Vs The Mathrumhumi Printing And Publishing Co. Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>OP(C) 2280 of 2022 decided on 23 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice C.S. Dias.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The antecedent facts leading to Ext.P1 order, in a\r\nnutshell, are:\r\n(i) The first respondent has filed the suit, inter alia, to\r\ndeclare that it is the first owner of copyright in the musical\r\nwork and sound record named ‘Navarasam’ composed and\r\nperformed by a musical band named ‘Thaikkudam Bridge’.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) Along with the suit, the first respondent filed\r\nI.A.No.3/2022 against the petitioner and respondents 2 to 12\r\nto pass an order of temporary injunction to restrain the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">above respondents from exhibiting, releasing on Over the\r\nTop platforms, streaming, and/or in any manner\r\ncommunicating to the Public in and/or through their services;\r\nthe Cinematographic Film – ‘Kantara’ with the synchronised\r\nsong ‘Varaha Roopam’, and pass an ad-interim order to the\r\nsame effect, without notice, till the disposal of the\r\napplication.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(iii) The court below has restrained the respondents\r\nfrom exhibiting, releasing on OTT platforms, streaming,\r\ndistributing or communicating to the public the film ‘Kantara’\r\nwith the synchronised song ‘Varaha Roopam’ until further\r\norders.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(iv) The petitioner is a limited liability partnership firm\r\nand is the producer of the film ‘Kantara’, which includes the\r\nsong ‘Varaha Roopam’</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(xv) The court below does not have the subject matter\r\njurisdiction to entertain the suit in the light of the Copyright\r\nAct, 1957, read with the Commercial Courts, Commercial\r\nDivision and Commercial Appellate Division of the High Court\r\nAct, 2015.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(xvii) The maintainability of the suit and the application\r\nis a predominant issue. The suit is hit by the provisions of\r\nSection 10 of the Code. Hence, this Court may set aside\r\nExt.P1 order and direct the court below to decide the\r\nmaintainability of the suit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. The question that emanates for consideration in\r\nthe original petitions is whether this Court is to interfere with <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Ext.P1 order invoking its supervisory jurisdiction under Article\r\n227 of the Constitution of India.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. The grievance of the petitioner in the original\r\npetition is manifold; i.e., the first respondent has violated the\r\nprovisions of Order 39 Rule 3 (a) of the Code; the court below\r\nhas no inherent, pecuniary or territorial jurisdiction to\r\nentertain the suit; Ext P1 order is non-est as it is passed by a\r\ncourt lacking jurisdiction etc. Thus, the petitioner seeks to\r\nget Ext.P1 order set aside under Article 227 of the\r\nConstitution of India.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. Ext.P1 order is undoubtedly an ad-interim order of\r\ninjunction passed by the court below under Order 39 Rule 1 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the Code after being satisfied that the first respondent has\r\nmade out a prima facie case and sending of notice is likely to\r\ndefeat the purpose of the petition.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. An order passed under Order 39 Rule 1 is\r\nappealable under Order 43 Rule 1 (r) of the Code.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. The Code of Civil Procedure has explicitly laid down\r\nthe procedure and the timelines to be followed by the courts\r\nwhile dealing with applications under Order 39 of the Code.\r\nThe Code has also prescribed the hierarchy of Courts that\r\nneeds to be approached for the redressal of the grievances\r\nof a litigant confronted with orders passed under the above\r\nprovision.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. The supervisory jurisdiction of this Court is not to be\r\nexercised to inter-meddle with every ad-interim order passed\r\nby the subordinate courts. If that is the case, the Courts of\r\noriginal jurisdiction and appellate Courts will become\r\ndefunct, and this Court will be flooded with such litigation,\r\nunsettling and dislodging the legislative framework laid down\r\nunder the Code. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. The contentions raised by the petitioner are mixed\r\nand disputed questions of fact and law, which will have to be\r\ndealt with by the Court of the first instance or the appellate\r\ncourt. It is not for this Court to examine each and every\r\ncontention raised in the original petition, that too at the adinterim stage, and rule upon their worthiness and\r\ncorrectness. If this Court carries out such an exercise, it will\r\nforeclose the statutory rights of the parties and will\r\nundoubtedly cause grave prejudice to them.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. At the cost of repetition, it is reiterated that the\r\nexceptional power of superintendence is not to be exercised\r\nat the drop of a hat at the ad-interim stage, particularly when\r\nthe petitioner has an alternative and efficacious statutory\r\nremedy provided under the Code and the special statutes.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. This Court fails to understand why the petitioner\r\nhas directly approached this Court to vacate an ad-interim\r\norder bye-passing the procedure established under law. I\r\ndon’t find any ground or reason for this Court to interfere\r\nwith Ext.P1 ad-interim order at this nascent stage. It is up to\r\nthe petitioner to appear before the court below, file its <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">counter statement/affidavit and raise all its contentions\r\nbefore the court below. In any event, this Court is not\r\npersuaded to sit in appeal over Ext.P1 ad-interim order and\r\nexamine its legality on the points urged before this Court\r\nunder Article 227 of the Constitution of India. This Court is\r\ndisinclined to entertain the original petition for the\r\naforementioned reasons. In the above conspectus, the\r\noriginal petitions are dismissed, sustaining the objection of\r\nthe Registry, which will be without prejudice to the right of\r\nthe petitioner to work out its remedies in accordance with\r\nlaw.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '01a9449b9e3897c95193a3e909a92051.jpeg', '6a2679b8fb5f8dc9df765214c97afdc9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-25', 1, '', '', '2022-11-24 12:39:43', '2022-11-25 12:04:00');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2429, '7okcnyq0K4WQwEwVQ8lZy6yqN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A ‘question of law’ is not the same as a ‘substantial question of law’. When the Statute insists on a ‘question of law’ to maintain an appeal, the Appellate Body stands constrained to that extent. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Karnataka Power Transmission Corporation Limited Vs JSW Energy Limited.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8714 of 2022 decided on 22 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.M. Joseph, Justice Aniruddha Bose, Justice Hrishikesh Roy.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. By the impugned judgment, the High Court has\r\nallowed Miscellaneous First Appeal No. 4795 of 2002\r\nfiled by the first respondent herein, viz., JSW Energy\r\nLtd., earlier known as Jindal Thermal Power Company\r\nLimited (hereinafter referred to as the first\r\nrespondent). The appeal was filed by first respondent\r\nunder Section 41 of the Karnataka Electricity Reforms\r\nAct, 1999 (hereinafter referred to as the ‘Act’ for\r\nbrevity).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">5. The first respondent was permitted by GoK during\r\nMarch 1994 to set up a 2X130 MW cortex gas/ coal based\r\nthermal power plant at Bellary. It was apparently\r\nintended that Jindal Vijayanagar Steel Limited (JVSL)\r\nwould consume the power produced from the thermal plant\r\nto be set up by the first respondent. The Central\r\nElectricity Authority granted the required technical\r\neconomic clearance in March 1996. Originally, GoK gave </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">approval to set up the power plant by JTPCL for 300 MW.\r\nIt was initially reduced from 300 to 240 MW in March\r\n1995 and finally, it was modified by order dated\r\n13.02.1996 and reduced to 260 MW (130X2). There were to\r\nbe two units, that is Unit No.1 and Unit No.2. Karnataka\r\nState Electricity Board (KEB for short) entered into a\r\nheads of terms with JTPCL on 30.09.1995.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. In the said agreement also, the parties have\r\nreiterated the Clause (Clause 2.4) relating to the sale\r\nby first respondent to KEB in similar terms as in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Heads of terms. Somewhere in 1998, the first respondent\r\ninvoked the clause in its bid to sell power to KEB.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. It is these orders which came to be challenged by\r\nthe first respondent before the High Court under\r\nSection 41 of the Karnataka Electricity Reforms Act,\r\n1999. The High Court formulated the following points\r\nfor decision.\r\n“19. After hearing the learned Counsel for the\r\nparties, following points arise for decision:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(I) Whether the Karnataka Electricity\r\nRegulatory Commission-Respondent No. 3 can be\r\nadded as a party respondent to the appeal and\r\nwhether it is entitled to defend the impugned\r\norder on merits?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(II) Whether there existed a binding contract\r\nbetween the appellant and the KPTCL on the\r\ntariff prior to commencement of Karnataka\r\nElectricity Reform Act, 1999 with effect from\r\n01.06.1999, in terms of Explanation to Section\r\n19 and proviso to Section 27(2) of the Act? if\r\nthe answer is in the positive, whether the\r\nCommission has jurisdiction to review the\r\ntariff particularly when the proviso to subsection (2) of Section 27 is restricted to\r\ntariff determination and does not require a PPA\r\nto establish a concluded contract?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(III) Whether the status of the appellant is\r\nthat of an IPP or CPP?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(IV) Whether the impugned orders are perverse,\r\narbitrary and passed without application of\r\nmind?<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. As regards point No.1 it was found that the\r\nCommission was performing as a quasi-judicial body. It\r\nwas further found that when validity of the order of a\r\nquasi-judicial body is assailed in a court of law, it\r\nis healthy and fair that such authority (the\r\ncommission) should not take sides. The High court did\r\nnot find justification for the Commission to file its\r\nown extensive pleadings, engage a senior counsel and\r\nshow abnormal interest. The contesting parties were\r\ncapable of taking care. The question was also posed as\r\nto the position of the Commission if a case is remanded\r\nback to it when it has been impleaded as a party and\r\ntakes an unambiguous and inelastic view. It was finally\r\nfound that the Commission was not a proper party having\r\nregard to the questions that arose for decision in the\r\nappeal. The High court took care that it should not be\r\nunderstood as meaning that the Commission cannot be a\r\nnecessary and proper party if an appeal is preferred\r\nunder Section 41 against its order regardless of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">question which arose. Answering point No.2, that is\r\nwhether there is a concluded contract, the Court went\r\non to find that there was a concluded contract within\r\nthe meaning of the explanation to Section 19 and proviso\r\nto Section 27(2) of the Act. This view was formed on\r\nthe basis of the conspectus of the correspondence\r\nbeginning with the Government order dated 07.03.1994\r\nand the communications which we have already indicated\r\nand culminating in the GO dated 12.05.1999 of GoK. Thus,\r\nit was found that all essential terms and conditions,\r\nthat is, the tariff rate, escalation, quantity and\r\ntenure for purchase and sale of power were agreed\r\nbetween the parties before 01.06.1999 (the date on\r\nwhich the Act came into force). The order dated\r\n12.05.1999 was preceded by several rounds of\r\nnegotiation. It was no doubt found that there were\r\nseveral rounds even after the Act came into force\r\nbetween the parties, and they discussed and finalised\r\nthe terms and conditions of the PPA except tariff as\r\nthe tariff was agreed upon as evident from GO dated\r\n12.05.1999. The PPA dated 10.11.2000 incorporated all\r\nthe agreed terms. After signing the PPA, the appellant </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">took steps to open letter of credit for securing payment\r\nbased on the tariff of Rs.2.60 per unit plus 5 per cent\r\nescalation per annum without obtaining approval of the\r\nCommission. The letters dated 04.01.2000, 12.04.2000\r\nand 24.05.2000 according to the High court reflected\r\nthe intention of the parties to treat GO dated\r\n12.05.1999 as the binding contract as far as the tariff\r\nwas concerned. The High Court discussed case law and\r\nfound inter alia that there was a concluded contract.\r\nInterpreting the proviso to Section 27 (2) of the Act,\r\nit was found that the proviso was only for the purpose\r\nof Section 27(2), that is, factors relating to tariff\r\ndetermination. The proviso could not deal with other\r\nfields, the Section itself did not deal with. The\r\ncorrect interpretation, according to the High Court,\r\nwas as far as ‘contract concluded’ is concerned the\r\nproviso is referable to the tariff which is agreed\r\nbetween the parties before the Commission came into\r\nexistence. There is no form for the concluded contract\r\nin the Act. No penalty is imposed for not entering into\r\nthe PPA. This shows that PPA is not an essential\r\nrequirement under the Act. The appellant purchases </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">power from other utilities without PPA. The fact that\r\nthe learned counsel for the Commission entertained this\r\nview, was recorded. It is found that when an offer is\r\nmade and acceptance does not extend to all the terms,\r\non the terms accepted, a contract is concluded. The\r\norder dated 12.05.1999 was for all purposes treated as\r\ncontract for sale of power. Parties were ad idem. All\r\nterms and conditions agreed upon in the GoK order dated\r\n12.05.1999 were incorporated in the PPA without any\r\nvariation. GoK has given its consent to the first\r\nrespondent in terms of Section 43A of the Act, prior to\r\nthe commencement of the Act. Since approval was already\r\ngiven under Section 43A of the Electricity (Supply)\r\nAct, 1948, approval under Section 17(1) was not\r\nnecessary. It is recorded in the judgment that the\r\nappellant agreed with the first respondent that Section\r\n27(2) of the Act did not require a contract in writing\r\nor any formal document or that it prescribed any\r\nparticular form.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>81. We have noticed the facts. It was a contract for\r\nsale of coal. There was a long course of dealing between\r\nthe parties. The defendant wanted, however, to have a\r\nwritten contract. The agents met. The terms of the draft <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">agreement were prepared by the agent of the buyer and\r\nsent to the seller. The chief partner of the Seller\r\nfirm, in fact, filled up certain parts of the terms\r\nwhich had been left in blank. What is more, the name of\r\nthe arbitrator to decide in the case of a dispute was\r\nalso written. Most importantly, the word ‘approved’ was\r\nwritten. It was signed by the chief partner. It was\r\nsent to the agent of the buyer. Though the matter did\r\nnot culminate in the drawing up of a formal written\r\nagreement as such, the evidence revealed that the coal\r\nwas supplied and paid for. It is pertinent to notice\r\nthe context in which the question arose. It did not\r\ninvolve the aspect about a statute like the Act in\r\nquestion, with its ramifications both qua the alleged\r\ncontracting parties and the impact on the object of the\r\nAct bearing in mind the interests of the consumers as\r\nwell. At any rate, the view taken in the said case\r\ncannot be safely applied even otherwise to the facts of\r\nthe case before us. It is not a case where the parties\r\nwere not ad idem on all the essential terms of the\r\ncontract. It is not a case where the correspondence\r\nrevealed that a concluded contract did not exist. The </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">conduct of the parties in the supply of the goods in\r\nquestion, and the acceptance of the same and the payment\r\nmade therefor and the not infrequent reference to the\r\nterms of ‘the contract’ as approved by the chief partner\r\nof the Seller firm “as contract” fortified the Court in\r\nthe facts in concluding that there was a concluded\r\ncontract. On the other hand, the correspondence in this\r\ncase establish a completely different factual matrix.\r\nBoth before 01.06.1999 and thereafter, the parties\r\nclearly contemplated the execution of the PPA. They\r\nwere not ‘ad idem’ on seven matters which are expressely\r\nleft open for negotiations as indicated in letter dated\r\n23.04.1999. We are unable to brush aside these as not\r\nconstituting essential terms. To conflate ‘concluded\r\ncontract’ even in the context of the proviso to Section\r\n27, as one merely agreeing to the tariff, tenure and\r\nthe quantum overlooks the complex nature of the working\r\nof such a contract. We cannot be oblivious to the impact\r\nof provisions relating to penalty, threshold value,\r\nconsumption and other terms. Before 01.06.1999, it is\r\nnot in dispute that no negotiation as was contemplated\r\nin regard to the same took place. Even negotiations </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">after 01.06.1999, and the preparation of a draft PPA on\r\n07.11.2000, cannot clearly suffice. This is a case of\r\na contract involving a public body. This is also a case\r\nwhere the implications of the contract are not confined\r\nto the parties alone. The contract impinges on interest\r\nsuch as interest of the consumer and other relevant\r\naspects. We, therefore, are of the view that we cannot\r\npermit the first respondent to draw support from the\r\nsaid judgment.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>90. We must deal with the three other findings. The\r\nHigh Court has found that there is merit in the argument\r\nbased on principles of promissory estoppel and\r\nlegitimate expectation. We would have explored the\r\nmatter and rendered our findings qua the approach of\r\nthe High Court in regard to this matter which at least\r\nat first blush looks ‘wholly untenable’ but since the\r\nfirst respondent has taken the stand before this Court\r\nthat it may not seek to draw support from the said\r\nprinciples and rightfully so, we desist from further\r\nenquiry.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>91. As regards the finding by the High Court answering\r\npoint no. 4, namely, whether the impugned orders are\r\nperverse, arbitrary and passed without application of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">mind, our attention is drawn by the appellant to the\r\nlimited nature of jurisdiction exercised by the High\r\nCourt under Section 41 of the Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>95. We are of the view that the High Court has\r\napparently proceeded on the basis that there existed a\r\nconcluded contract within the meaning of proviso to\r\nSection 27(2). We have found that it is unsustainable.\r\nWe are of the view that findings which have been\r\nrendered under Point No. 4, have been considerably\r\ninfluenced by the finding relating to there being <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">negotiations and the emergence of the concluded\r\ncontract. We are of the view that, at any rate,\r\nparticularly bearing in mind, the limited nature of the\r\njurisdiction of the High Court under Section 41 of the\r\nAct, the approach and the findings of the High Court\r\nunder Point No. 4, may not be sustainable. But, at the\r\nsame time, we are of the view that, being an assessment\r\nof the findings of an Expert Body, the High Court must\r\nreconsider the matter. To the said extent, the matter\r\nmust be remitted back to the High Court in regard to\r\nPoint No.4.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>96. The last question which remains relates to point\r\nno.3 that is, whether the first respondent was a CPP or\r\nan IPP.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>101. The guaranteed minimum supply of threshold power\r\nis compatible with the first respondent being an IPP.\r\nPenalties for failure to sell the firm capacity or\r\nrather for short supplies is relied upon. Payment of\r\ncharges for supply of electricity was based on\r\nprocedure in IPP projects. The tariff order of the\r\ncommission for the years 2000, 2002 and 2003 shows that\r\nthe first respondent was an IPP. Sharing of common\r\ninfrastructure did not necessarily imply that the power\r\nplant of the first respondent was a CPP. There were\r\nother projects taking advantage of such infrastructure.\r\nIt was intended only to optimise the project cost.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>112. The upshot of the above discussion is that the\r\nappellant is entitled to succeed in the manner we shall\r\nhereinafter immediately indicate. The appeal is partly\r\nallowed. The finding that there was a concluded\r\ncontract within the meaning of the proviso to Section\r\n27(2) of the Act will stand set aside. The findings\r\nwhich have been rendered under point no. 4 about\r\nperversity, arbitrariness in the findings of the\r\nCommission are set aside. The finding relating to the\r\nfirst respondent being an IPP is also set aside. The\r\nmatter will now stand remitted back to the High Court.\r\nIt will proceed on the basis that there was no concluded\r\ncontract within the meaning of the proviso to Section\r\n27(2) of the Act. It will proceed, however, to deal\r\nwith the appeal under Section 41 of the Act in regard\r\nto point no.3 and 4, namely, whether the findings of\r\nthe Commission are such that they are required to be\r\ninterfered under the jurisdiction available under <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 41 of the Act including the question whether\r\nthe first respondent is a CPP or an IPP.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>118. The appeal filed by Karnataka Power Transmission\r\nCorporation Limited is partly allowed and the impugned\r\nJudgment shall stand set aside. We find that there was\r\nno contract concluded within the meaning of Section\r\n27(2) of the Act. We remand the case back to the High\r\nCourt for reconsidering the points ‘3’ and ‘4’ <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">formulated by the High Court. The first respondent\r\nshall pay to the appellant a sum of Rs.50 crores (fifty\r\ncrores) within eight weeks. As regards further\r\nliability to pay, it will await and depend upon the\r\ndecision of the High Court. So also, the payment of\r\nRs.50 crores (fifty crores) by the first respondent,\r\nunder this Judgment, will be subject to the\r\ndetermination to be made by the High Court.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '850ae47762459ae72978c74ea671fb2f.jpeg', '87811837048e3ecf2612461d7b6f12cf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-29', 1, '', '', '2022-11-23 22:19:56', '2022-11-29 08:46:52'),
(2432, '8kvhb1YJnF86Ias3VQwhvqp6R', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration. Question whether novation of contract obliterates the arbitration clause can be decided only by the arbitrator and not the Court under Section 11(6) of the A & C Act. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/s Meenakshi Solar Power Pvt. Ltd Vs M/s. Abhyudaya Green Economic Zones Pvt. Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8818 of 2022 decided on 23 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B.R. Gavai and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. This Civil Appeal has been filed by assailing the impugned judgment and order dated 12.02.2021 passed by the High Court of Judicature for the State of Telangana at Hyderabad in Arbitration Application No. 55 of 2020 whereby the High Court dismissed the application filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘Act of 1996’, for the sake of convenience) filed by the appellant herein. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. The appellant herein­ M/s. Meenakshi Solar Power Pvt. Ltd. is engaged in the business of producing power through running and operating thermal/solar/hydro power plants. The respondent No.1 – M/s. Abhyudaya Green Economic Zones Pvt. Ltd. is the owner of 4.128 MW Solar PV Power Project located in 20 acres at Kummera Village, Chevella Mandal, Ranga Reddy District, Telangana. Respondent Nos. 2 and 3 are promoters and 100% shareholders of respondent No.1 Company. Respondent No. 4­ M/s. Meenakshi Power Pvt. Ltd. is an affiliate of the appellant herein and is a proforma respondent in the present case while the other three respondents are the contesting respondents.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. Succinctly stated, the facts of the case are that the power project of respondent No.1 herein is generating power and has a twenty­year Power Purchase Agreement with Telangana State Southern Power Distribution Company Limited. The power project was partly financed by Corporation Bank, Film Nagar Branch, Hyderabad in the form of a Term Loan vide Account No. 560821000017646 and partly financed by M/s. IFCI Venture Capital Funds Limited (hereinafter referred to as ‘IFCI Venture Capital’) in the form of 14,68,000 Optionally Convertible Debentures of Rs.100/­ each at par aggregating to Rs.14,68,00,000/­ (Rupees Fourteen Crore Sixty­Eight Lakhs Only) under a Venture Capital Fund for Schedule Castes. Since it was difficult for respondent No.1 to service the debt availed from the financial institutions, respondent Nos. 2 and 3 its promoters, decided to sell the said power project. The appellant herein showed interest in buying the said power project and therefore entered into a Share Purchase Agreement dated 24.09.2018 with respondent Nos.1 to 3 wherein respondent Nos. 2 and 3 agreed to sell 100% ownership of respondent No.1 Company comprising all of its assets including land, buildings, plant, equipment along with continuity of the Power Purchase Agreement signed with Telangana State Southern Power Distribution Company Limited as a going business entity, for an irrevocably frozen Purchase Price of Rs. 29 Crores (Rupees Twenty­Nine Crores). The appellant herein agreed to purchase 100% Equity Shares and 100% Preference Shares of respondent No.1 Company by way of taking over the loans of respondent No.1 Company and paying the balance amount to the sellers i.e., respondent Nos. 2 and 3 towards net equity value</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13. Having heard the learned counsel appearing for the respective parties, the following points would arise for our consideration:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(a) Whether the judgment and order of the High Court calls for any interference or modification by this Court?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(b) What order?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15. As far as the issues in the first category are concerned, the Chief Justice or his designate is bound to decide. With regard to the issues falling under the second category, when they are raised in an application under Section 11 of the Arbitration Act, the Chief Justice or his designate may decide them or may leave it open with a direction to the Arbitral Tribunal to decide the same. But if the Chief Justice or his designate chooses to examine the issue and decides it, the Arbitral Tribunal cannot re­examine the same issue. As far as the issues which arise in the third category are concerned, they have to be dealt with exclusively by the Arbitral Tribunal such as excepted or excluded matters. It would also include merits of any claim involved in arbitration.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17. Further, this Court observed that the court at the referral stage can interfere only when it is manifest that the claims are ex facie time­barred and dead, or there is no subsisting dispute. In the context of issue of limitation period, it should be referred to the Arbitral Tribunal for decision on merits. Similar would be the position in case of disputed “no­claim certificate” or defence on the plea of novation and “accord and satisfaction”</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19. In view of the aforesaid discussion, we find that High Court was not right in dismissing the petition under Section 11(6) of the Act of 1996 filed by the appellant herein by giving a finding on novation of the Share Purchase Agreement between the parties as the said aspect would have a bearing on the merits of the controversy between the parties. Therefore, it must be left to the Arbitrator to decide on the said issue also. Hence, the impugned judgment and order passed by the High Court has to be set­aside.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20. In the result, the appeal filed by the appellant is allowed and the impugned judgment and order passed by the High Court is hereby quashed and set aside. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0b82b6fed41af68c5494197f7ec7753b.jpeg', 'f18fca74b952995a52d8eb055c50bac8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-26', 1, '', '', '2022-11-24 12:57:50', '2022-11-26 12:11:54'),
(2433, 'ekNXz8riWHNZwXMsUdEXGuHBh', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Farmers cannot be deprived the benefit under the Minimum Support Price Scheme simply because they did not register under the Web-Portal set up by the Department. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Suresh Channabasappa and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 101997 of 2022 decided on 10 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioners are farmers who have raised the Ragi\r\ncrop in their lands.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The Union of India under its M.S.P. scheme\r\nfixed a sum of Rs.3,377/- per quintal as the minimum\r\nsupport price for Ragi crop</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The petitioners contend that they approached\r\nthe authorities for selling of their Ragi crop at which point\r\nof time an objection was raised that raising of the crops\r\nhad not been uploaded on the application prepared by the\r\nState.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The petitioners are aggrieved by the said\r\nendorsement and therefore, they are before this Court\r\nchallenging the endorsement dated 25.05.2022\r\n(Annexure-A). The petitioners are also seeking for a\r\ndirection to the respondents to purchase the Ragi crops\r\ngrown by them as per the recommendation made by the\r\nDeputy Commissioner and pay them the minimum support\r\nprice (hereinafter referred as ‘MSP’ for brevity) prescribed\r\nby the Union Government.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">12. It is no doubt true that in order to effectively\r\nimplement the scheme, the State may adopt such\r\nprocedures as it deems proper and effective. However, the\r\nState Government cannot deny the benefit of an MSP on </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the ground that the farmer had not got himself registered\r\nin an application prepared by it.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. It is to be stated here that the primary legal\r\nobligation of the State is to purchase the crop in respect of\r\nwhich a MSP is prescribed (subject of course to the\r\nquantity that the State has decided to purchase). Merely\r\nbecause, the State has adopted an application which\r\nmandates the registration of a farmer for the payment of\r\nthe MSP, the mere non registration in such an application\r\ncannot disentitle the farmer from receiving the benefits of\r\nthe scheme.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. It may be pertinent to state here that there is\r\nno bar created by either the State Government or by the\r\nUnion Government under the MSP scheme which\r\nmandates that a farmer will have to get himself registered\r\nin a particular application to avail the benefit of MSP. In\r\nother words, it has nowhere been prescribed that unless\r\nthe farmer has got himself registered under a particular <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">application, he would be disentitled to claim the benefit of\r\nMSP.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. In the instant case, when the dispute as to\r\nwhether the petitioners had raised the Ragi crops arose, a\r\nsurvey has been conducted in which it has been found the\r\npetitioners have indeed raised a Ragi crops. The Deputy\r\nCommissioner has also recommended that the petitioners\r\nbe given the benefit of MSP since there was proof of the\r\nfact that they have raised the Ragi crops. In this view of\r\nthe matter, the decision of the Agriculture Commissioner\r\nto refuse the incorporation of the crops details in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">application and thereby deny the benefit of MSP to the\r\npetitioners cannot be sustained.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n17. The respondents are therefore directed to\r\npermit the petitioners to avail the benefit of MSP for the\r\nRagi crops that they have raised and the procuring\r\nagencies are hereby directed to accept the Ragi crops\r\nraised by the petitioners and as recommended by the\r\nDeputy Commissioner vide Annexure-D and pay the\r\npetitioners the prescribed MSP for their Ragi crop.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18. The writ petition is accordingly allowed.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f7969c23fe7b1d1ad502a6647a471e0d.JPG', '01552d4d15db224ab04a2adc5db999fc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-26', 1, '', '', '2022-11-24 13:25:28', '2022-11-26 03:21:40'),
(2434, 'HXWwsyWH6N64XHFiH3y51olKG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Petition under Section 438 or 439 of Cr.P.C is not maintainable for the offences under KPIDFE Act since appeal is provided under Section 16 of the KPIDFE Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shreesha Sasithotta Prabharan Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 9971 of 2022 decided on 10 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Rajendra Badamikar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This petition is filed by the petitioner/Accused No.1\r\nunder Section 439 of Cr.P.C. for enlarging him on bail in\r\nCrime No.11/2022 of Shankarapura Police Station,\r\nBengaluru City, registered for the offences punishable\r\nunder Sections 420, 419, 406, 403, 120-B and 506 of\r\nIPC; under Sections 4 and 9 of the Karnataka Protection\r\nof Interest of Depositors in Financial Establishments Act,\r\n2004 (for short, ‘KPIDFE Act’) and also Sections 5 and\r\n21(3) of Banning of Un-Regulated Deposit Schemes Act,\r\n2019 (for short, ‘BURDS Act’), which is now pending on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the file of Principal City Civil and Sessions Judge at\r\nBengaluru, in Spl.C.C. No. 1792/2022\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2. The brief factual matrix of the prosecution\r\ncase are that, the complainant and her family members\r\nhave invested Rs.17,50,00,000/- towards purchase of\r\nhigh value shares through a company called M/s\r\nSunness Capital India Pvt. Ltd., having its registered\r\noffice at 213, II Floor, V-Main, Opp.: Bank of India, RPC\r\nLayout, Vijayanagar, Bengaluru. The present\r\npetitioner/Accused No.1 and others are Directors of the\r\ncompany. After investment of said money, the\r\nauthorities of the said company have neither issued any\r\nshare nor repaid the invested amount and an enquiry,\r\nthey alleged to have given vague and untenable\r\nexcuses in order to shirk from responsibility and\r\navoided payments with the sole intention of defrauding\r\nthe complainant and several other investors. It is\r\nfurther alleged that, the petitioner/Accused No.1 and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">other accused by colluding with their staff members\r\nwere alleged to have diverted the entire funds to utilize\r\nthe same for their personal use and not for the purpose\r\nfor which the funds were collected from various other\r\ninvestors. In that context, a complaint came to be\r\nlodged against this petitioner/Accused No.1 and others\r\nin the jurisdictional Police Station. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">7. Having heard the arguments and after\r\nperusing the records, it is an undisputed fact that, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">initially the complaint was filed under Section 420 of\r\nIPC and FIR was issued only for the offence under\r\nSection 420 of IPC, which is in respect of cheating the\r\ndepositors by the Directors of the said Co-operative\r\nSociety, by not issuing any shares or without repayment\r\nof the deposited amount. However, as noted above,\r\nsubsequently the Investigating Officer has submitted a\r\nrequisition to the Court on 18.06.2022 for incorporating\r\nthe provision of Section 9 to the KPIDFE Act, along with\r\nSection 120 of IPC. The document further discloses that\r\nthe learned Magistrate by order dated 18.06.2022 by\r\nexercising his powers under Section 155(2) of Cr.P.C.\r\nhas granted permission to register the case under the\r\nprovisions of KPIDFE Act and proceed with the\r\ninvestigation.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. There is no dispute of the fact that, the bail\r\npetition under Section 439 of Cr.P.C. was not barred,\r\nwhen initially offence was alleged only under Section <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">420 of IPC. But, the issue has been raised only when\r\nthe provisions of KPIDFE Act have been incorporated.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. Though the provision of Section 18 of KPIDFE\r\nAct deals with special powers regarding offence under\r\nSection 18(1), the statute stipulates that, without\r\ncommitting matter to the Court, the Court shall try the\r\ncase and shall follow the procedure provided under the\r\nCr.P.C. for trial of warrant case. By incorporating this\r\nprovision, the Legislators have shown their inclination as\r\nto what extent provisions of Cr.P.C. can be made\r\napplicable. The same is again incorporated in subSection (2) wherein it is held that the provisions of 438\r\nof Cr.P.C are not applicable to the provisions under this\r\nAct, which bars the relief of anticipatory bail. But, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">tone of Sections clarifies that, KIPDFE Act has overriding effect, over all other provisions of Law. In this\r\nregard, the learned SPP has placed reliance on a\r\ndecision of the Hon’ble Apex Court reported in 2008\r\n(3) SCC 874 [Suresh Nanda Vs. CBI] and invites the\r\nattention of the Court to Para Nos. 8, 9 and 15 of the\r\nsaid judgment.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. In the said decision, the Hon’ble Apex Court\r\nhad an occasion to deal with the powers and jurisdiction\r\nof the Court to impound passport in exercise of powers\r\nunder the Passport Act and it is clearly held that, the Act\r\nbeing a Special Act, whereas Section 104 of Cr.P.C. is a\r\ngeneral provision for impounding any document or\r\nthing, it shall prevail over that sections in the Cr.P.C. as\r\nregards the passport. Thus, by necessary implication,\r\nthe power of the Court to impound any document or\r\nthing produced before it, would exclude passport. But <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">it has held that the specific provision is being made in\r\nspecial enactment, the same shall prevail.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. This issue is again considered by the Division\r\nBench of this Court reported in ILR 2021 KAR 4783\r\n[Lokesh Vs. State of Karnataka], wherein a similar\r\nissue arose in pursuance of Section 14(A) of SC/ST\r\n(POA) Act and the Court has framed a point as to\r\nwhether the Criminal Petition or Criminal Appeal is\r\nmaintainable against an order of the Special Court or\r\nexclusive Court in granting or refusing bail. This aspect\r\nhas been dealt in detail. The division Bench of this\r\nCourt has specifically observed that, since SC/ST Act is a\r\nspecial enactment under Section 14(A)(2) of Act, the\r\nappeal provision is available and in view of the\r\navailability of remedy of appeal under Section 14(A)(2),\r\nit will not be open to the High Court to exercise original\r\nconcurrent jurisdiction under Section 438 and 439 of\r\nCr.P.C.. The Division Bench’s decision of this Court in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Lokesh’s case (cited supra), covers the entire issue,\r\nwhich is also involved in the present case and answers\r\nthe same holding that the provisions of Special Act will\r\nprevail, when a specific provision is made by granting\r\nan alternative remedy.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 16. Looking to the above facts and\r\ncircumstances, the petition under Section 438 or 439 of\r\nCr.P.C is not maintainable when offences under KPIDFE\r\nAct are incorporated and the only remedy available is to\r\nfile an appeal under Section 16 of the KPIDFE Act.\r\nHence, the petition does not survive for consideration\r\nand accordingly, the petition stands dismissed with\r\nliberty to the petitioners to file an appeal under Section\r\n16 of the KPIDFE Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5914619a27ee369f5167da7091a7602a.JPG', '88fd4edec46ccf4e293fc89231795ae4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-25', 1, '', '', '2022-11-24 14:31:34', '2022-11-25 10:59:10');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2435, '1GMezHajQiB10bbbZwRzzV9oe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Digitization of Criminal Investigation. Karnataka High Court issues comprehensive directions. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Shivappa Vs The State of Karnataka and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Criminal Appeal 100187 of 2017 decided on 4 November 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Suraj Govindaraj and Justice G Basavaraja.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. The appellant has been sentenced to undergo imprisonment for life for offences punishable under Section 302 of the IPC and to pay fine of Rs.50,000/-, to undergo imprisonment for seven years for offence punishable under Section 201 of the IPC and to undergo imprisonment for three years for offence punishable under Section 404 of the IPC, that all sentences running concurrently.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. The facts of the case are that:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3.1. A missing complaint was filed on 04.02.2014 at 2200 hours, a further complaint came to be filed by the son of the deceased on 05.02.2014 at 1530 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">hours that an offence under Section 302 had been committed.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">3.4. Upon the trial being completed, the trial Court put across the incriminating evidence against the accused. The accused denied all such incriminating evidence in his statement under Section 313 Cr.P.C. It is after hearing the counsel that the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">above order of conviction and sentence came to be passed, which is impugned herein.</span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">35. In the above circumstances, the date on which the deceased went missing, the date on which the body of the deceased was found, the date on which the goats were transported and sold, the date on which the goats were seized and recovered, the date on which the Boramal chain was sold, the date on which Boramal chain was recovered, are suspect and have not been established. <br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">42. Insofar as the recovery of goats are concerned, PW20, who is stated to be the videographer, who has videographed the recovery, has stated that, when he visited PW4, he had shown them 10-12 sheep and the police seized all the 10-12 sheep. If the accused had stolen six goats and sold them, the question of 10-12 goats being seized as per the deposition of PW20 would not arise. This statement made by Pw20 has been accepted by the prosecution since PW20 has not been treated as hostile let alone been cross-examined. Thus, this evidence of PW20 does not inspire any confidence in the seizure of the goats as claimed to have been made by the Investigating Officer.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">44. From the above it is clear that the recovery of gold Boramal chain and six goats is not categorically established to implicate the accused. Furthermore, PW23 has stated that the accused had first taken them to the person who bought goats and then to the goldsmith. However, PW20 has stated that first they went to the goldsmith and then to the person who has bought the goats.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">45. As observed above, the accused was arrested by PW22 on the instructions given by the Circle Inspector of Police – PW23. The arrest having been made on 07.12.2012, there is nothing on record to show as to how the Circle Police Inspector came to the conclusion that the accused is required to be arrested. There is no evidence on record as to on what basis the Investigating Officer approached PW2 and PW3 to ascertain how the goats have been transported. There is also nothing on record to indicate as <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to how the Investigating Officer has approached PW5 and PW6 to ascertain the sale of gold Boramal chain.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">46. Suffice it to say that the entire investigation is lacking in terms of details and the chain of investigation has not been clearly established so as to prove guilt of the accused beyond reasonable doubt.</span><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">48. In the above circumstances, we are therefore of the considered opinion that the order of conviction and sentence passed by the trial Court is not supported by </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the evidence on record and is therefore required to be set aside.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">ORDER</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">i. Appeal is allowed.</span></p>', '32f4f00da56a21872a46aa819688cf3f.jpeg', '524989516e272f82b31779bb88145d12.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-25', 1, '', '', '2022-11-24 14:33:19', '2022-11-25 12:30:25'),
(2437, 'PKtXQyUazMu7D5Kqob1jzvpob', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Revaluation of assets and credit into the capital accounts of the respective partners is transfer attracting capital gains under section 45(4) of the Income Tax Act. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Commissioner of Income Tax -23 Vs M/s. Mansukh Dyeing and Printing Mills.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8258 of 2022 decided on 24 November 2022<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice M.M. Sundresh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts leading to the present appeals in nutshell are as under :-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.1 The respondent assessee, a partnership firm originally consisted\r\nof four partners (all brothers) engaged in the business of Dyeing and\r\nPrinting, Processing, Manufacturing and Trading in Clothing. Under the\r\nFamily Settlement dated 02.05.1991, the share of one of the existing\r\npartners – Shri M.H. Doshi having 25% profit share in the firm was\r\nreduced to 12% and, for his balance 13% share, three new partners\r\nwere admitted namely, viz., Smt. Ranjan Doshi (11%), Shri Prakash\r\nDoshi (1%) and Shri Rajeev Doshi (1%). It appears that thereafter, Shri\r\nM.H. Doshi, Shri Manohar Doshi and Shri V.H. Doshi retired from the\r\npartnership and reconstituted the partnership firm consisted of the\r\npartners namely, viz., Shri Hasmukhlal H. Doshi, Smt. Rajan H. Doshi,\r\nShri Prakash H. Doshi & Shri Rajiv H. Doshi.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.4 The respondent filed its Return of Income for the relevant\r\nassessment years. The Return of Income was filed for A.Y. 1993-1994\r\n@ Rs. 3,18,760/-. The same was accepted under Section 143(1) of the\r\nIncome Tax Act, 1961. However, thereafter, the assessment was\r\nreopened under Section 147 of the Income Tax Act by issuance of the\r\nnotice under Section 148. The assessment was reassessed under\r\nSection 143(3) read with Section 147 determining the total income of\r\nRs. 2,55,19,490/-. Addition of Rs. 17,34,86,772/- was made towards\r\nshort term capital gain under Section 45(4) of the Income Tax Act.\r\nSimilar addition was made for A.Y. 1994-1995.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.8 Relying upon the decision of this Court in the case of Hind\r\nConstruction Ltd. (supra), by the impugned judgment and order the\r\nHigh Court has dismissed the appeals preferred by the Revenue. Hence\r\nthe present appeals being Civil Appeal No. 8258 of 2022 (relating to A.Y.\r\n1993-1994) and Civil Appeal No. 8259 of 2022 (relating to A.Y. 1994-\r\n1995) have been filed by the Revenue.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The short question, which is posed for the consideration of this\r\nCourt is the applicability of Section 45(4) of the Income Tax Act as\r\nintroduced by the Finance Act, 1987.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7.2 The object and purpose of introduction of Section 45(4) was to\r\npluck the loophole by insertion of Section 45(4) and omission of Section\r\n2(47)(ii). While introduction to Section 45(4), clause (ii) of Section 2(47)\r\ncame to be omitted. Earlier, omission of Clause (ii) of Section 2(47) and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 47(ii) exempted the transform by way of distribution of capital\r\nassets from the ambit of the definition of “transfer”. The same helped\r\nthe assessee in avoiding the levy of capital gains tax by revaluing the\r\nassets and then transferring and distributing the same at the time of\r\ndissolution. The said loophole came to be plucked by insertion of\r\nSection 45(4) and omission of Section 2(47)(ii). At this stage, it is\r\nrequired to be noted that the word used “OR OTHERWISE” in Section\r\n45(4) is very important.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7.3 In the present case, it was the case on behalf of the assessee\r\nrelying upon the decision of this Court in the case of Hind Construction\r\nLtd. (supra) that unless there is a dissolution of partnership firm and\r\nthereby the transfer of the amount on revaluation to the capital accounts\r\nof the respective partners, Section 45(4) of the Income Tax shall not be\r\napplicable. It is the case on behalf of the assessee that there can be no\r\nincome just due to revaluation of the capital assets unless capital assets\r\nis also transferred. According to the assessee, the amount credited on\r\nrevaluation to the capital accounts of the partners is only notional or\r\nbook entry, which is not represented by any additional tangible assets or\r\nincome. Therefore, the sum and substance of the submission on behalf\r\nof the assessee is that unless there is a dissolution of the partnership\r\nfirm, and there is only transfer of the amount on revaluation to the capital <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">accounts of the respective partners, Section 45(4) of the Income Tax Act\r\nshall not be applicable.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7.4 However, in view of the amended Section 45(4) of the Income Tax\r\nAct inserted vide Finance Act, 1987, by which, “OR OTHERWISE” is\r\nspecifically added, the aforesaid submission on behalf of the assessee\r\nhas no substance. The Bombay High Court in the case of A.N. Naik\r\nAssociates and Ors., (supra) had an occasion to elaborately consider\r\nthe word “OTHERWISE” used in Section 45(4). After detailed analysis of\r\nSection 45(4), it is observed and held that the word “OTHERWISE” used\r\nin Section 45(4) takes into its sweep not only the cases of dissolution but\r\nalso cases of subsisting partners of a partnership, transferring the assets\r\nin favour of a retiring partner.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7.5 In the present case, the assets of the partnership firm were\r\nrevalued to increase the value by an amount of Rs. 17.34 crores on\r\n01.01.1993 (relevant to A.Y. 1993-1994) and the revalued amount was\r\ncredited to the accounts of the partners in their profit-sharing ratio and\r\nthe credit of the assets’ revaluation amount to the capital accounts of the\r\npartners can be said to be in effect distribution of the assets valued at\r\nRs. 17.34 crores to the partners and that during the years, some new\r\npartners came to be inducted by introduction of small amounts of capital <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ranging between Rs. 2.5 to 4.5 lakhs and the said newly inducted\r\npartners had huge credits to their capital accounts immediately after\r\njoining the partnership, which amount was available to the partners for\r\nwithdrawal and in fact some of the partners withdrew the amount\r\ncredited in their capital accounts. Therefore, the assets so revalued and\r\nthe credit into the capital accounts of the respective partners can be said\r\nto be “transfer” and which fall in the category of “OTHERWISE” and\r\ntherefore, the provision of Section 45(4) inserted by Finance Act, 1987\r\nw.e.f. 01.04.1988 shall be applicable.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7.6 Now, so far as the reliance placed upon the decision of this Court\r\nin the case of Hind Construction Ltd. (supra) is concerned, at the\r\noutset, it is required to be noted that the said decision was pre-insertion\r\nof Section 45(4) of the Income Tax Act inserted by Finance Act, 1987\r\nand in the earlier regime – pre-insertion of Section 45(4), the word\r\n“OTHERWISE” was absent. Therefore, in the case of Hind\r\nConstruction Ltd. (supra), this Court had no occasion to consider the\r\namended / inserted Section 45(4) of the Income Tax Act and the word\r\nused “OTHERWISE”. Under the circumstances, for the purpose of\r\ninterpretation of newly inserted Section 45(4), the decision of this Court\r\nin the case of Hind Construction Ltd. (supra) shall not be applicable\r\nand/or the same shall not be of any assistance to the assessee. As\r\nsuch, we are in complete agreement with the view taken by the Bombay <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">High Court in the case of A.N. Naik Associates and Ors., (supra). We\r\naffirm the view taken by the Bombay High Court in the above decision.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. In view of the above and for the reasons stated above, the\r\nimpugned judgment and order passed by the High Court and that of the\r\nITAT are unsustainable and the same deserves to be quashed and set\r\naside and are accordingly quashed and set aside. The order passed by\r\nthe Assessing Officer is hereby restored.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Present appeals are accordingly allowed. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">However, in the facts\r\nand circumstances of the case, there shall be no order as to costs.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'bc6781d6a9be692502a0af81939c82ba.jpeg', '837579b3ef921e8efc43e2e16c6b322e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-25', 1, '', '', '2022-11-24 15:05:18', '2022-11-25 08:44:49'),
(2438, '3GQRFlgVvRN79DeSaXJaATMjw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'If compensation is not paid due to inter se dispute, the landowners cannot contend that the acquisition under the 2013 land acquisition Act has been lapsed. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Secretary, The Department of Land and Building and others Vs Anjeet Singh through LRS and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8196 of 2022 decided on 24 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice M.M. Sundresh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order passed by the High Court of Delhi at New Delhi in Writ Petition\r\n(C) No. 203 of 2015 by which the High Court has allowed the said writ\r\npetition preferred by the respondent No.1 herein and has declared that\r\nthe acquisition with respect to the land in question comprised in Khasra\r\nNo. 156 admeasuring 2 bighas, 4 biswas in village Lado Sarai, New\r\nDelhi, is deemed to have lapsed under Section 24(2) of the Right to Fair\r\nCompensation and Transparency in Land Acquisition, Rehabilitation and\r\nResettlement Act, 2013 (hereinafter referred to as “Act, 2013”), the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Department of Land and Building and the Land Acquisition Collector\r\nhave preferred the present appeal.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. At the outset, it is required to be noted that in the present case, the\r\nacquisition proceedings commenced in the year 1986. The award under\r\nthe Land Acquisition Act, 1894 was declared on 14.09.1986. According\r\nto the appellants, the possession of the land in question was taken on\r\n22.09.1986</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.4 Now on merits, it was the specific case on behalf of the authority\r\nthat the possession of the land in question was already taken over on\r\n22.09.1986. However, thereafter without entering into the question of\r\npossession, the High Court has declared that the acquisition with respect\r\nto land in question is deemed to have lapsed under Section 24(2) of the\r\nAct, 2013 as the compensation with respect to the land in question was\r\nnot paid. As observed and held by this Court in the case of Indore\r\nDevelopment Authority (supra) for the purpose of deemed lapse of\r\nland acquisition proceedings under Section 24(2) of the 2013 Act, both <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the conditions namely the possession of land has not been taken over\r\nand the compensation not paid are required to be satisfied. As observed\r\nand held by this Court in the case of Indore Development Authority\r\n(supra), if one of the conditions are not satisfied, there cannot be any\r\nlapse of acquisition under Section 24(2) of the Act, 2013.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.6 Therefore, if the compensation has not been paid due to inter se\r\ndispute between the co-owners, thereafter, it will not be open for the\r\nrespondents – landowners to make a grievance that once the\r\ncompensation was not paid, the acquisition is deemed to have lapsed.\r\nIn any case, in view of the decision of this Court in the case of Indore\r\nDevelopment Authority (supra), the impugned judgment and order\r\npassed by the High Court is unsustainable.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. In view of the above and for the reasons stated above, present\r\nappeal succeeds. The impugned judgment and order passed by the\r\nHigh Court in Writ Petition (C) No. 203 of 2015 declaring that the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">acquisition with respect to the land in question is deemed to have lapsed\r\nunder Section 24(2) of the Act, 2013 is hereby quashed and set aside.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Present appeal is accordingly allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>No costs.\r\nPending application, if any, also stands disposed of. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '02fad34b8c8167a31b12a974bd171ccf.jpeg', 'e10c98a954433135701544788e6dad3e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-26', 1, '', '', '2022-11-25 12:59:42', '2022-11-26 08:40:16'),
(2439, 'qGGh4P8qzx4dJW8JkfHirPQ8E', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Demand alone or acceptance alone would not become an offence under Section 7 of the Prevention of Corruption Act. There must be demand and acceptance of the bribe. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>P. Manjunath Vs The State and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 10027 of 2022 decided on 16 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court calling in question\r\nregistration of crime in Crime No.3 of 2022 for offence punishable\r\nunder Section 7(a) of the Prevention of Corruption Act, 1988 (‘the\r\nAct’ for short).\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 2. Brief facts that lead the petitioner to this Court in the\r\nsubject petition, as borne out from the pleadings, are as follows:- <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is an employee of the Revenue Department in\r\nthe wing of Stamps and Registration. The substantive post held by\r\nthe petitioner was that of First Division Assistant. The post of SubRegistrar at Hosadurga was lying vacant. The petitioner was\r\nordered to perform the duties of Sub-Registrar on in-charge basis.\r\nWhen he was functioning as in-charge Sub-Registrar, the 2nd\r\nrespondent/complainant had availed a mortgage loan from\r\nSri Vasavi Multipurpose Co-operative Society Limited (‘the Society’\r\nfor short) in a sum of Rs.18,00,000/-. The Chief Executive Officer\r\nof the Society communicates to the petitioner, for registration of a\r\nmortgage deed, in terms of the loan availed by the complainant and\r\nseeks his exemption from personal appearance in terms of Section\r\n88 of the Registration Act, 1908. In terms of the said\r\ncommunication, the petitioner registers the mortgage deed as\r\npresented by the complainant on 24-02-2022 and released the\r\ndocument on the same day i.e., 24-02-2022. After about *07 days,\r\nthe 2nd respondent gives a complaint to the then Anti Corruption\r\nBureau (‘ACB’) on 02.03.2022, alleging that the petitioner being incharge Sub-Registrar had demanded illegal gratification of\r\nRs.5,000/- to do official favour of registering the mortgage deed <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which was presented before him on 24-02-2022. Based on the said\r\ncomplaint, the 1st respondent registers a crime in Crime No. 3 of\r\n2022 on 02-03-2022 for offences punishable under Section 7(a) of\r\nthe Act. The petitioner is arrayed as the sole accused.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. In furtherance of registration of the crime, it appears that a\r\npre-trap panchanama was prepared by the ACB and a sum of\r\nRs.4,000/- was handed over to the complainant with instructions to\r\nhand over the same to the petitioner on demand. On 02-03-2022,\r\nthe ACB seeks to lay the trap as intended on the petitioner, which\r\nwas unsuccessful as the petitioner was not present in the office.\r\nThe trap gets postponed indefinitely. After a lapse of two months\r\nof registration of mortgage deed, an entrustment mahazar was\r\nprepared on 20.04.2022, to lay a trap against the petitioner. It is\r\nthen, the trap takes place on 20.04.2022 and Rs.4,000/- was found\r\non the table of the petitioner. The petitioner was not caught of\r\naccepting alleged illegal gratification. Based on the said trap,\r\nfurther proceedings are sought to be continued for offences\r\npunishable under Section 7(a) of the Act. It is challenging the said\r\nproceedings, the petitioner knocks the doors of this Court in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">subject petition. This Court by an order dated 26-05-2022 had only\r\nissued notice and after hearing the learned counsel for respondent\r\nNo.1/then ACB had passed a detailed interim order interdicting the\r\nproceedings in terms of its order dated 02.09.2022. Therefore,\r\nfurther proceedings are not conducted in the case at hand.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The afore-narrated facts though not in dispute need little\r\nelaboration. It is not in dispute that the petitioner was functioning\r\nas in-charge Sub-Registrar at Hosadurga, when the complainant\r\npresented the mortgage deed for registration. It is also not in\r\ndispute that the complainant availed loan by mortgaging the\r\nproperty to the tune of Rs.18,00,000/-. The Chief Executive Officer\r\nof the Society communicates to the petitioner seeking exemption of\r\nhis personal appearance for registration of the mortgage deed and\r\nsends all necessary documents through his communication dated\r\n19-02-2022. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">12. On a coalesce of the judgments rendered by the Apex\r\nCourt, as quoted hereinabove, what would unmistakably emerge is\r\nthat, demand and acceptance by the public servant of illegal\r\ngratification is sine qua non for establishing the offence under\r\nSection 7 of the Act. The Apex Court has further held that mere\r\ndemand without acceptance or mere acceptance without demand\r\nwould not be enough circumstance to prove the allegation against\r\nthose accused under Section 7 of the Act. Though they were cases </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which go to the Apex Court at the appellate stage, the law that is\r\nlaid down would clearly become applicable to cases where the\r\ncomplaint would not even divulge any semblance of demand or\r\nacceptance.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. If the facts obtaining in the case at hand are considered\r\non the bedrock of the principles laid down by the Apex Court, what\r\nwould unmistakably emerge is that, there is neither demand nor\r\nacceptance in the case at hand. The demand should be for any work\r\nto be performed and acceptance should be towards the said work.\r\nThe documents produced along with the petition are so\r\nunimpeachable that they would clearly demonstrate that the work\r\nthat came before the petitioner on 24-02-2022 was performed and\r\nthe document was released on the same day itself. If the\r\ncomplainant had complained that the petitioner had demanded\r\nmoney for release of document that would have been a\r\ncircumstance altogether different. The complaint is made after * 07\r\ndays of release of the document when no work was pending with\r\nthe petitioner, the final trap is laid after two months of registration\r\nof the document and the petitioner is not even caught accepting <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">any illegal gratification for him to have demanded so, two months\r\nago. Section 7 of the Act would clearly hint at a pre-paid demand\r\nfor performing a work and acceptance. There is no post-paid\r\nconcept under Section 7 of the Act, that too, on a trap that is laid\r\nafter two months after the alleged demand. The first trap fails and\r\nthe second trap is a failure.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. The contention of the learned counsel representing the 1st\r\nrespondent-ACB/Lokayukta is neither here nor there as he is unable\r\nto wriggle out of the fact that the work had already been done and\r\nthe alleged demand was projected after *07 days of the work and\r\ntrap was laid after two months of the work completion. Reliance\r\nbeing placed on certain audio conversation between the petitioner\r\nand the complainant cannot even be pressed in his defence in view\r\nof unequivocal facts narrated hereinabove. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Apex Court has laid down postulates of circumstances in which\r\nan FIR can be quashed. Two postulates are applicable to the case\r\nat hand. One being the first postulate, that even if the complaint is\r\ntaken on its face value, prima facie would not make out a case\r\nagainst the petitioner. The other being inherent improbability\r\nshrouded with the complaint. Therefore, following the judgment of\r\nthe Apex Court in the case of BHAJAN LAL (supra) and the\r\nunequivocal fact that there is neither demand nor acceptance as\r\nlaid down by the Apex Court in the aforesaid judgment, I deem it <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appropriate to obliterate the crime registered against the petitioner\r\nin Crime No.3 of 2022 for offences punishable under Section 7(a) of\r\nthe Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n\r\n (i) The Writ Petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '08b1c988cfa851308caa72b56a621a75.jpeg', 'e92fbb35a67994d6e5877a5d5ec6df48.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-28', 1, '', '', '2022-11-25 13:55:33', '2022-11-28 03:21:56'),
(2446, 'S7BR7LYhqKZ2euyVXLv8fVFei', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prospective beneficiary has no right to question deletion of the land from the acquisition proceedings. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Laxmi Tourism Corporation Vs Lakeview Tourism Corporation and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Appeal 118 of 2013 decided on 14 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Alok Aradhe and Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. Facts leading to filing of this appeal narrated in\r\nbrief are, the appellant is the owner of 16 items of land\r\ntotally measuring 4 acres 4 ¼ guntas situated at Hebbal </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">village, Bengaluru North Taluk (hereinafter referred to as\r\n\'the lands in dispute\') which are the subject matter of the\r\nnotification at Annexure-H dated 03.02.2010 issued by\r\nthe State Government in exercise of its power under\r\nSection 4 of the Karnataka Industrial Areas Development\r\nAct, 1966 (for short, \'the Act\'). Respondent nos.2 & 3\r\nhad issued notifications under Sections 3(1) & 28(1) of\r\nthe Act for acquiring the lands in dispute along with\r\ncertain other items of lands and final notification under\r\nSection 28(4) of the Act was issued on 11.05.2004. The\r\nappellant had made an application before the State Level\r\nSingle Window Agency for approval of its project for the\r\npurpose of hotel industry in the lands in dispute, but the\r\nsaid proposal of the appellant was not processed on the\r\nground that the lands in dispute were notified for\r\nacquisition and it is under these circumstances, the\r\nappellant had made a representation to de-notify the\r\nlands in dispute. After due deliberation, in exercise of its\r\npower under Section 4 of the Act, the State Government\r\nhad issued the notifications dated 03.02.2010 and\r\n10.03.2010 vide Annexures-H & J, respectively, deleting\r\nthe lands in dispute from the acquisition proceedings. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Challenging the same, respondent no.1 herein who\r\nclaims to be the beneficiary had filed W.P.No.22888/2010\r\nbefore this Court and the learned Single Judge vide the\r\norder impugned has allowed the writ petition and being\r\naggrieved by the same, respondent no.3 in the writ\r\npetition who is the owner of the lands has preferred this\r\nintra court appeal.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. From a reading of the aforesaid provision, it is\r\nvery clear that the powers under the said provision of law\r\ncan be exercised by the State Government at any stage.\r\nUnlike Section 48 of the Land Acquisition Act, 1894, there\r\nis no provision under the Act which provides that the\r\nState has no power to take a decision to delete the lands\r\nnotified for acquisition or to alter the industrial area after\r\npossession of the lands which were the subject matter of\r\nacquisition proceedings has been taken. Therefore, in our\r\nconsidered view, the learned Single Judge was not\r\njustified in holding that the State Government had erred\r\nin issuing the impugned notifications deleting the lands in\r\ndispute from the acquisition proceedings since the\r\npossession of the said lands were already taken. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. In the said case which arose from the acquisition\r\nproceedings initiated under the Act, the Hon\'ble Supreme\r\nCourt has held that the beneficiary of the acquisition has\r\nno right to participate in the award proceedings for\r\ndetermination of the market value and award\r\ncompensation amount to the appellant, and therefore,\r\nthe beneficiary cannot maintain the writ petition\r\nquestioning the correctness of the award passed by the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Reference Court. In the present case, admittedly, no\r\naward has been passed for a considerable period of time\r\neven after issuance of Section 28(4) notification. The\r\nState Government in exercise of its power under Section\r\n4 of the Act has thought it fit to delete the lands in\r\ndispute from the acquisition proceedings and the State\r\nhas taken such a decision prior to passing of an award.\r\nFurther, admittedly, the lands in dispute have not been\r\nallotted to respondent no.1 nor possession of the same\r\nhas been handed over to it by the Board. In almost\r\nidentical circumstances, the Division Bench of this Court\r\nin W.A.No.15210/2011 supra, following the judgment of\r\nthe Hon\'ble Supreme Court in Peerappa\'s case supra, has\r\nheld that the beneficiary has no vested right in the land\r\nand it cannot invoke the doctrine of promissory estoppel.\r\nThe learned Single Judge, however, has failed to\r\nappreciate this aspect of the matter and has erroneously\r\nheld that the respondent has got locus standi to maintain\r\nthe writ petition.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Under the circumstances, we are of the\r\nconsidered view that the learned Single Judge had erred\r\nin allowing the writ petition and quashing the impugned\r\nnotifications at Annexure-H & J issued by the State\r\nGovernment in exercise of its power under Section 4 of\r\nthe Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. The writ appeal is allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f123864989ed54771b8f2922e16b6d56.jpeg', '1b774cef11bb50aede75e3e488c10d76.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-30', 1, '', '', '2022-11-29 13:09:26', '2022-11-30 03:22:27');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2452, 'YVAKlKOnhgZjZIaksnREzQRAW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Promoter/director of Company cannot question in his individual capacity the proceedings against the Company under Section 148 of the Companies Act, 2013. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ravindra Kumar Aggarwal Vs Income Tax Officer.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. (C) 7122 of 2019 decided on 17 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Manmohan and </b></span><span style=\"font-weight: bolder; font-size: 1rem;\">Justice Manmeet Pritam Singh Arora. </span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The Petitioner herein is the director of RKA International Pvt. Ltd., a\r\ncompany incorporated under the provisions of the Companies Act, 1956\r\n(‘the Company’). The Company was struck off by the Registrar of\r\nCompanies, Delhi and Haryana (‘ROC’), from its register of companies,\r\nunder Section 248 of the Companies Act, 2013 (‘Companies Act’) on 30th\r\nJune, 2017, in pursuance of the proceedings initiated by Ministry of\r\nCorporate Affairs through the office of ROC, due to the defaults of the\r\nCompany.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The present petition has been filed by the Petitioner seeking quashing\r\nof the notice dated 28th March, 2019 (impugned notice), issued under\r\nSection 148 of the Income Tax Act, 1961 (‘the Act’) for Assessment Year\r\n(‘AY’) 2012-13 on the ground that the said notice is null and void, as it has\r\nbeen issued in the name of the struck off company.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The Respondent has filed its counter affidavit, placing on record the\r\norder dated 25th September, 2019, passed by the National Company Law\r\nTribunal, New Delhi (‘NCLT’), allowing the petition filed by the Income\r\nTax Department (‘the Department’) under Section 252 of the Companies\r\nAct, 2013, for restoration of the name of the Company in the register of\r\ncompanies, maintained by the ROC Delhi. Learned Counsel for the\r\nRespondent states that since the Company now stands restored, the present\r\nwrit petition which is premised on the sole ground that the impugned notice\r\nwas issued in the name of a struck off Company, does not survive any more\r\nand the entire petition has become infructuous.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The petitioner herein is the promoter and director of the Company and\r\nhe has filed the present petition in his individual capacity, impugning the\r\nnotice issued under Section 148 of the Act, in the name of the company. The\r\nPetitioner admits the Company stands restored by the order dated 25th\r\nSeptember, 2019, passed by the NCLT. The defaulting Company has neither\r\nchallenged the impugned Notice dated 28th March, 2019, nor the order dated\r\n25th September, 2019, passed by the NCLT, which has therefore, attained\r\nfinality in law. In our view, in these facts alone, the Petitioner herein has no\r\nlocus standi to maintain the proceedings and even in alternative the present\r\npetition has become infructuous</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Section 250 of Companies Act of 2013 is a new provision and it\r\ndeclares that even where a Company is dissolved in consequence to it being\r\nstruck off under Section 248, it shall be deemed to continue to be in\r\nexistence for the purpose of discharging its liabilities.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. It is pertinent to observe that in the judgment of Gopal Shri Scrips\r\n(Supra), there was no order restoring the Company and it remained to be\r\nnon-existent, being struck off. Despite the said fact, the Supreme Court, after <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">referring to proviso (a) to Sub-section (5) of Section 560 of the Companies\r\nAct, 1956 and Chapter XV of the Act of 1961, held that the High Court was\r\nwrong in dismissing the appeal filed against such a struck off Company and\r\nremanded the matter to decide the appeal on merits.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">17. In the present proceedings, the Company has admittedly been restored\r\nand as it has been observed above that statutorily upon restoration, the\r\nCompany under Section 252(3) of the Companies Act, 2013, is deemed to\r\nnot have been struck off from the register of companies at all. Accordingly,\r\nthe impugned notice dated 28th March, 2019, is valid and not non-est on the\r\ngrounds urged in the present petition.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. It would be relevant to note that the Company was initially struck off\r\nby the Ministry of Corporate Affairs due to its default in filing its statutory\r\nreturn with the ROC and the Company was, therefore, struck off due to its\r\nown defaults. The NCLT upon realizing that the detriment caused to the\r\ninterest of the Income Tax department due to the striking off, restored the\r\nCompany to enable the Department to recover its dues. However, the\r\nconduct of the Petitioner in persisting with the present petition even after the\r\nCompany has been restored and also his action in opposing the appeal\r\nbefore the NCLT for restoration evidences that the petitioner is abusing the\r\nprocess of law to obstruct the assessment proceedings. The resort to present\r\npetition by the Petitioner herein is therefore, not bona fide and is being done\r\nto avoid legal processes. We, accordingly, dismiss the present petition with\r\ncosts and vacate the stay/interim order.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd19269e26219b88f4160463c717028b8.jpeg', '025fe8a698dda3770906972afeb6c211.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-30', 1, '', '', '2022-11-29 17:13:38', '2022-11-30 08:59:35'),
(2447, 'lCjjUUYKUng55GdApI65sQOln', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Physically preventing public servant from discharging duties cannot be construed as part of fundamental right to assemble under Article 19(1)(b) of the Constitution. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Uma Shankar Mohapatra and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 6123 of 2020 decided on 9 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Natarajan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The case of the petitioners is that respondent\r\nNo.2 Smt. Malathi, an Executive Engineer of BBMP,\r\nMahadevapura Division, filed a complaint to the police on\r\n21.03.2020 alleging that the High Court of Karnataka\r\npassed an order in W.P. No.14435/2019 (GM-KLA) on\r\n16.01.2020 for removing encroachment over the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rajakaluve in Sy. Nos.151/1, 151/4 and 119 of\r\nMahadevapura village. It is further alleged in the\r\ncomplaint that as per the order of the High Court, wire\r\nfencing has to be done and hence, BBMP officials went to\r\nthe spot on 21.3.2020 for surveying the property. On\r\n09.03.2020, they went along with the ADLR and police\r\npersonnel for removing the encroachment and to do wire\r\nfencing work. But the petitioners who are staying in\r\nShilpitha Splendour Annex (hereinafter after referred to as\r\n\'Apartment\') said to be illegally gathered and prevented\r\nthe public servant while discharging duty and executing\r\nthe order of the High Court. After registering the case, the\r\npolice took up investigation and the same is challenged by\r\nthe petitioners, who are the occupants of the Apartment in\r\nthis petition.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The petitioners, being the owners of the\r\nApartment, must be in the Apartment, but they altogether\r\njoined their hands with an intention to prevent the public\r\nauthority while discharging duty, which attracts Section\r\n149 of IPC i.e. common object and unlawful assembly <span style=\"font-size: 12pt;\">under Section 143 of IPC for committing an offence on the\r\npublic servant.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b> 10. A bare reading of Section 353 of IPC, defines\r\nwhoever assaults or uses criminal force to any person\r\nbeing a public servant in the execution of his public duty\r\nas such public servant, or with intent to prevent or deter\r\nthat person from discharging his duty as such public\r\nservant, or in consequence of anything done or attempted\r\nto be done by such person in the lawful discharge of his\r\nduty as public servant, shall be punished with\r\nimprisonment of either description for a term which may\r\nextend to two years, or with fine, or with both.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b> 11. Such being the case, there is a clear case of\r\nattracting Section 353 of IPC against the petitioners for\r\nhaving obstructed the complainant along with BBMP\r\nofficers and the ADLR while surveying the encroachment\r\nand put up fencing as per the order of this Court. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. That apart, it is an admitted fact that\r\nsubsequent to the registering the case against the\r\npetitioners, the BBMP officers were able to put fencing on\r\nthe area recovered from the encroachment. Therefore, it\r\ncannot be said that the offences are not made out for\r\ninvestigating the matter. The photographs and video\r\nclippings reveals the incident occurred for having\r\nprevented the officials of BBMP by the petitioners. There is\r\nprima facie material to show that there is cognizable\r\noffence made out for conducting investigation. Therefore,\r\nthe petition is devoid of merits and is liable to be\r\ndismissed.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 13. Accordingly, the petition is dismissed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2835e3adaf5e6b5fc285ec3094206ee3.JPG', '55821a19e065273a609de0e4c1ea7b67.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-30', 1, '', '', '2022-11-29 15:14:26', '2022-11-30 06:47:35'),
(2448, 'Fb9xwN5I0yiPLG8TznsU9nu95', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mere stay of a judgment in appeal would not preclude the Court from following the dictum laid down in the judgement. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gavisiddappa and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 103533 of 2022 decided on 15 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The petitioners are challenging the award\r\npassed by the Land Acquisition Officer on the ground that\r\nthe award ought to have been passed under the 2013 Act\r\nand not under the 1894 Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. It is not in dispute that the lands in question\r\nwere notified after 2013 Act came into force. It is also not\r\nin dispute that by Act No.20 of 2022, Section 30 of the\r\nKIADB Act has been substituted and provisions of the\r\n2013 Act are deemed to be a part of KIADB Act as if they\r\nwere reenacted under the body of the Act. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. This Court in WP No.108802/2016, WP\r\nNo.100034/2017 and WP No.102957/2021 has already\r\nheld that in respect of the lands which have been acquired\r\nand where awards have not been passed as on\r\n01.01.2014, necessarily the awards would have to be\r\npassed under the 2013 Act. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. In the instant case, as noticed above, the\r\nnotification itself has been issued after the 2013 Act came\r\ninto force and having regard to the above mentioned\r\njudgments and also the amendment brought about to\r\nSection 30 of the KIADB, the impugned award passed\r\nunder the 1894 Act cannot be sustained and the same is\r\nquashed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The writ petition is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '85b0b3debbc75143bf3cfe7b3a996572.JPG', 'b2419371f59594c8dabdd5b859125241.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-30', 1, '', '', '2022-11-29 15:40:34', '2022-11-30 12:55:35'),
(2449, 'wgnf7dixaETclAMCWlnfJzVq4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'In respect of lands notified prior to 1 January 2014 under the KIAD Act and in respect of which an award has not been passed as on that day the awards are required to be passed under Section 24 (1) (a) of the 2013 Act. Karnataka Court ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>S. Sheenappa and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. 108802 of 2016 decided on 18 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. On 05.02.2010, the State Government issued a\r\nnotification under Section 28(1) of the Karnataka Industrial\r\nArea Development Act, 1966 (hereinafter referred to as\r\n“KIAD Act”) giving notice of its intention to acquire about\r\n5368-83 acres for the benefit of M/s. Arcelor Mittal India\r\nCompany Limited, a private limited company.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. It appears that the Land Value\r\nDetermination/Assessment Committee had been constituted\r\nunder the Chairmanship of the Deputy Commissioner for\r\ndetermining the market value of the land in respect of those\r\nland owners who had agreed for the determination of the\r\nmarket value and compensation was not only determined but\r\nalso paid in respect of about 3950 acres, at the rate\r\ndetermined by the Committee. It is stated that compensation\r\nin respect of about 80% of the lands acquired had been paid\r\nin this mode.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Petitioners herein, who are the landowners,\r\napparently refused to receive the compensation as\r\ndetermined by the Committee on the ground that\r\ncompensation to their lands ought to have been paid at a far\r\nhigher value than the one determined by the Committee. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. Thus, from the above contentions, the principal\r\nquestion that is required to be decided in these writ petitions\r\nis:\r\n“Whether in respect of lands notified prior to\r\n01.01.2014 under the KIAD Act, in respect of which\r\nan award had not been passed as on 01.01.2014,\r\nawards are required to be passed under the 1894\r\nAct or the 2013 Act as envisaged in Section 24 (1)\r\nof the 2013 Act?”</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. Under the 1894 Act, lands which have been notified\r\nfor acquisition and declared to be needed for the public\r\npurpose would stand vested in the State Government free\r\nfrom all encumbrances only on taking possession of the land\r\n(under Section 16 of the 1894 Act) after an award is passed\r\n(under Section 11 of the 1894 Act).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>31. However, under the KIAD Act, the land stands\r\nvested in the State on the very issuance of a declaration <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under Section 28(4) of the KIAD Act. In fact, on the land\r\nvesting in the State Government, the State Government is\r\nempowered to call upon any person, who is in possession of\r\nthe land, to surrender possession within 30 days and if such\r\nperson refuses to comply with the order, the State\r\nGovernment or any Officer authorized by the State is\r\nempowered to take possession of the land by using such force\r\nas may be necessary. After possession of land has been taken\r\nover, the provision also enables the State to transfer the land\r\nto the Board for the purpose for which the land has been\r\nacquired</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>37. The admitted factual position, in this case, is that\r\nthough the declaration under Section 28(4) of the KIAD Act\r\nwas issued on 04.05.2010, in respect of petitioners herein,\r\nthe compensation was admittedly neither determined by\r\nagreement nor was an award made by the Deputy\r\nCommissioner till 01.01.2014. Thus, though a declaration had\r\nbeen issued in 2010 and the land stood vested in 2010 itself,\r\nthe compensation was not paid to the petitioners, either by\r\nway of an agreement or by way of an award made by the\r\nDeputy Commissioner under the provisions of the 1894 Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">38. It would be pertinent to state here that three years\r\nafter the issuance of a declaration under Section 28(4) of the\r\nKIAD Act, on 26.09.2013, the 2013 Act received the assent of\r\nthe President. The 2013 Act, was, however, brought into </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">force by the issuance of a notification on 19.12.2013. This\r\nnotification stated that the 2013 Act would come into force\r\nwith effect from 01.01.2014.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>40. The question that is raised in this case is, on and\r\nafter 01.01.2014, whether an award could be passed under\r\nthe 1894 Act, despite its repeal or whether the award is to be\r\npassed under the reenacted statute i.e., the 2013 Act. This\r\ncontroversy, in the present case, has arisen because of the\r\nintervening legislative event i.e., the repeal of the 1894 Act\r\nand the coming into force of the 2013 Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>41. As stated above, according to the petitioners, on and\r\nfrom 01.01.2014, awards would have to be passed only in\r\naccordance with the provisions of the 2013 Act, as mandated\r\nunder Section 24(1)(a) of the 2013 Act, in cases where an\r\naward has not been passed by then. However, it is the case <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the Board and also that of the beneficiary that\r\nnotwithstanding the repeal of the 1894 Act, the award would\r\nstill have to be made only under the repealed 1894 Act and\r\nnot under the 2013 Act, since the notifications for acquisition\r\nhad been issued prior to the repeal of the 1894 Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>57. In the present case, the entire 1894 Act was\r\nrepealed and reenacted afresh as the 2013 Act. Thus, the\r\ncondition laid down in Section 8 of the GC Act that whenever <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">a provision is repealed and reenacted would be attracted.\r\nResultantly, by virtue of the rule of construction stipulated in\r\nSection 8 of the GC Act, any reference in the KIAD Act to the\r\nprovisions of the 1894 Act would have to be necessarily\r\nconstrued as a reference to the reenacted provisions of the\r\n2013 Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>59. In other words, on the 1894 Act being repealed and\r\nthe 2013 Act coming into force, any reference to the\r\nprovisions of the 1894 Act in Section 30 of the KIAD Act,\r\nwould have to be necessarily construed as a reference to the\r\nprovisions relating to enquiry and award in the 2013 Act, by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">virtue of the rule of construction envisaged under Section 8 of\r\nthe GC Act.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">60. Thus, on the coming into force of the 2013 Act,\r\nwhenever an award is required to be passed in respect of a\r\nland notified under the provisions of the KIAD Act, by the\r\nmandate of Section 8 of the GC Act, an award can be passed\r\nonly under the provisions relating to the passing of an award\r\nunder the 2013 Act and an award cannot be passed in\r\naccordance with the repealed provisions relating to award in\r\nthe 1894 Act.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>68. In other words, in cases where an award is already\r\nmade under the 1894 Act, the provisions of the 1894 Act\r\nwould continue to operate for further proceedings, as if the\r\n1894 Act was not repealed, notwithstanding the mandate of\r\nSection 8 of the GC Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>74. In the present set of petitions, the contention being\r\nadvanced by the petitioners is not one of lapsing of\r\nacquisition by virtue of Section 24 (2) of the 2013 Act i.e., a\r\nsituation where an award had been passed within prior to 5\r\nyears of the commencement of the 2013 Act and thereafter\r\npossession of that land not being taken or that the\r\ncompensation had not been paid to the land losers. The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contention advanced in these cases, is simply, as to whether\r\nthe provisions of the 1894 Act have to be applied or the\r\nprovisions of the 2013 Act have to be applied, in the matter\r\nof passing of an award in cases where an award had not been\r\npassed in respect of notified lands as on 01.01.2014.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>100. To sum up, a reading of Section 30 of the KIAD Act\r\nmakes it clear that there is a general reference to the\r\nprovisions of the 1894 Act and no specific provisions of the\r\n1894 Act have been stated in Section 30 of the KIAD Act. It\r\nis, therefore, clear that Section 30 of the KIAD Act is only a\r\npiece of “legislation by reference” and not a “legislation by\r\nincorporation”. If it is a case of legislation by reference, the\r\namendments to the former Act (1894 Act) would become\r\napplicable to the KIAD Act. If, however, specific provisions of\r\nthe 1894 Act had been specifically referred to or incorporated\r\nin Section 30 of the KIAD Act, then an argument could have\r\nprobably been made that those incorporated provisions alone\r\nwould be applicable and any subsequent amendment made to\r\nthe incorporated provision or its repeal would continue to\r\napply.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>120. It is to be stated here that, in this case, though the\r\nland acquisition proceedings were initiated under the KIAD\r\nAct, nevertheless, in respect of the conclusion of the\r\nacquisition proceedings, such as holding an enquiry and\r\npassing an award, reference to the court, apportionment of\r\ncompensation and payment of compensation, it is only the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">provisions of the 1894 Act which are made applicable. The\r\nexpression “initiated” in Section 24 of the 2013 Act would\r\nhave to necessarily include the conclusion of the land\r\nacquisition proceedings and an artificial divide cannot be\r\nconstructed between “initiated” and the conclusion of the\r\nacquisition proceedings. In other words, even if the land\r\nacquisition process have been initiated under the 1894 Act,\r\nsince they would have to be concluded only as per the\r\nprovisions of the 1894 Act, even in respect of cases where\r\nland acquisition proceedings are initiated under the KIAD Act,\r\nthe provisions of Section 24 (1) of 2013 would apply.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>121. Lastly, it is to be stated here that in W.P.No.107748-\r\n50/2014, an interim order was granted restraining the Board\r\nfrom passing an award under 1894 Act. Similar orders were,\r\nhowever, not passed in respect of other writ petitions.\r\nHowever, the fact remains that there was a restraint on the\r\nBoard to pass an award under 1894 Act and despite being\r\naware of this interim order, the Board has proceeded to pass\r\nan award under the 1894 Act in some cases. In my view, this\r\nconduct of the Board cannot be commended. When the Board\r\nwas aware of the fact that in one set of writ petitions, there <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was a restraint order to pass an award under the 1894 Act, it\r\nought not to have disregarded this interim order and should\r\nnot have passed an award under the 1894 Act in respect of\r\nlands in which there was no interim order. Be that as it may,\r\nsince it is held that the Board is required to pass an award in\r\nrespect of lands acquired by it only under the 2013 Act,\r\nnotwithstanding the fact that the notifications had been\r\nissued prior to 01.01.2014, it would be necessary to direct\r\nthe Board to pass an award afresh in accordance with the\r\nprovisions of 2013 Act.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>122. As a result, it is hereby held that in respect of lands\r\nnotified prior to 01.01.2014 under the KIAD Act and in\r\nrespect of which, an award has not been passed as on\r\n01.01.2014, the awards are required to be passed under\r\nSection 24 (1) (a) of the 2013 Act only.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">123. The question framed in these petitions are\r\naccordingly answered.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>124. The awards, if any, passed under the 1894 Act are\r\nhereby declared to be void and shall not be acted upon. If,\r\nhowever, the petitioners have withdrawn any sums deposited <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">pursuant to the awards passed under the 1894 Act, the\r\namounts withdrawn by them shall be adjusted as against the\r\naward that is required to be passed under the 2013 Act as\r\nordered above.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">125. Accordingly, the writ petitions are allowed. The\r\nimpugned endorsements by which the Board had stated that\r\nawards will have to be made only under the 1894 Act are\r\nquashed and the Board shall now pass an award in respect of\r\nlands which are the subject matter of these writ petitions as\r\nprovided under the 2013 Act.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '31f2746dedc7d16b36b0d12dd203f3ba.JPG', '71d8f20eb2d35d6919a02e6c5f3e8645.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-01', 1, '', '', '2022-11-29 16:13:32', '2022-12-01 06:54:02'),
(2442, 'p8HEOhO3r6mOAFFeSl3LjJdwk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Government has no license to file frivolous cases which eat into the valuable judicial time. Karnataka High Court directs strict adherence to Dispute Resolution Policy. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State of Karnataka and others Vs Rahamathulla and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 23210 of 2021 decided on 17 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice G. Narendar and Justice P.N. Desai.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">5. The learned Advocate General has placed before\r\nthe Court a Policy Document framed by the Law\r\nDepartment, Government of Karnataka and titled\r\n‘Karnataka State Dispute Resolution Policy 2021’. The\r\nlearned Advocate General would submit, that an exhaustive\r\nexercise was conducted by the office of the Advocate\r\nGeneral in consultation with other stake holders and the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">result of the exercise is the Policy Document. That the\r\nPolicy Document was launched by the Hon’ble Chief\r\nMinister. That despite the launch, on account of increase in\r\nCOVID numbers, the document could not be circulated and\r\neven the printing and publishing was affected.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. Coming to the case on hand, the allegations have\r\nbeen ripped apart in the course of cross-examination and\r\nfrom every conceivable angle. The allegation is one, of\r\naccumulation of assets disproportionate to known sources of\r\nincome. In the cross-examination, it has been elicited that\r\nthe wife of the DGO was carrying on tailoring business and\r\nwas having an independent source of income. In the crossexamination, it has been elicited that the son of the DGO,\r\nan engineer by profession, was gainfully employed in\r\nBengaluru. It has been elicited in the cross-examination\r\nthat the DGO possessed certain properties even prior to the\r\ndate of his entry into service. It has been elicited in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cross-examination that the DGO was in receipt of rental\r\nincome from buildings owned by them. It has been elicited\r\nin the cross-examination that the DGO was receiving\r\nincome from agricultural lands and the icing on the cake is\r\nthat all these sources of income have been declared to the\r\nemployer. Despite the declaration, in the enquiry, the\r\nEnquiry Officer and the Disciplinary Authority have\r\nconveniently ignored all these sources of income and have\r\nnot brought it on record, which we feel is not an inadvertent\r\nact but a deliberate omission. Despite the weight of\r\nevidence against them and despite categorical admissions in\r\nthe course of cross-examination during the enquiry, an\r\nattempt is made before this Court and that is what has\r\ncaused us consternation. It is inconceivable that the\r\npersons responsible for filing of the writ petition indulged in\r\na bonafide attempt and this Court having formed such a\r\nprima facie view, called upon the petitioners to show cause\r\nwhy a cost of Rs.10 lakhs should not be imposed, which\r\nresulted in the learned Advocate General appearing and\r\npleading the case on behalf of the petitioners and further </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">asserting that the Policy Document would not only be\r\ncirculated but efforts would also be made to ensure\r\nimplementation of the same and in that view, he would pray\r\nthat cost not be levied.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. The petition is wholly devoid of merits.\r\nAccordingly, the writ petition stands dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c1e0e8e1c24aa543ffcd5d54a9ce1e27.jpeg', '3ce02ec906eddd14abd2bca2ed4c5e2c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-29', 1, '', '', '2022-11-28 13:50:39', '2022-11-29 12:40:37'),
(2444, 'aOvgmMHfTKoR85ksEAmA6yALe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When company is alleged to have committed offence under the Karnataka Forest Act, prosecution cannot be launched only against the directors without making the company an accused. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shyam Sunder Chirania and others Vs The State of Karnataka amd others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 102750 of 2022 decided on 7 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The cognizance taken by the learned Magistrate for the\r\noffences punishable under Sections 2(&)b(IV), 24(A), 24(G),\r\n24(GG),H, 73(D), 62, 64(a), 81, 82, 82(b) of Karnataka Forest\r\nAct is impugned in this petition. The police after the\r\ninvestigation submitted a charge sheet alleging that the\r\npetitioners – accused by encroaching the forest area conducted\r\nmining operation. Taking exception of the cognizance taken by\r\nthe learned Magistrate, this petition is filed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">5. The offence alleged against the petitioners is noncognizable. The FIR was registered on 9.3.2009. The police\r\nobtained permission of the learned Magistrate to register the\r\nFIR on 24.4.2009 i.e. after registration of the FIR. Section\r\n155(1) of Cr.PC specifies that when information is given to an </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">officer in charge of a police station of the commission within the\r\nlimits of such station of a non- cognizable offence, he shall\r\nenter or cause to be entered the substance of the information\r\nin a book to be kept by such officer in such form as the State\r\nGovernment may prescribe in this behalf, and refer the\r\ninformant to the Magistrate. Section 155(2) of Cr.PC specifies\r\nthat no police officer shall investigate a non- cognizable case\r\nwithout the order of a Magistrate having power to try such case\r\nor commit the case for trial.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 6. In the instant case, the police without obtaining\r\npermission from the learned Magistrate has registered the FIR\r\nand the same is impermissible. Hence, the Registration of FIR\r\nfor the offences alleged against the petitioner – accused which\r\nare non-cognizable culminating in filing the charge sheet stands\r\nvitiated.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Section 82-B of the Forest Act specifies that if the\r\nperson committing an offence under this Act is a company, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">company as well as every person in charge of, and responsible\r\nto the company for the conduct of its business at the time of\r\nthe commission of the offence shall be liable to be proceeded\r\nagainst and punished accordingly. In the instant case, the firm\r\nin which the petitioner – accused No.1 is a partner and the\r\npetitioner No.2- accused No.3 is the Mines Manager having not\r\nbeen arraigned as accused, the petitioners cannot be held to be\r\nvicariously guilty of the offences of the aforesaid offences.\r\nHence, the charge sheet without arraigning the firm as accused\r\nas specified under Section 82-B of the Forest Act is\r\nimpermissible.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i) Criminal petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '54e8e57943f8cd6107809061121ea966.jpeg', '3c7f7f023ca0153744b129816f17bca5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-29', 1, '', '', '2022-11-28 15:40:46', '2022-11-29 03:27:52');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2445, 'ReS8Bz3LfyvKSkSVw2aGOnjtW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Though accused are to be acquitted in cheque bounce case on technical ground, the complainant is entitled to receive the amount deposited in the court. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kallar Harikumar and others Vs Amritha Enterprises Pvt. Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Crl. REV. PET 622 of 2022 decided on 19 October 2022<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A. Badharudeen.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Accused Nos.1 and 2 in C.C.No.41 of 2013 on\r\nthe file of the Judicial First Class Magistrate Court-V,\r\nThiruvananthapuram are the revision petitioners in this\r\nrevision petition filed under Sections 397 and 401 of Code\r\nof Criminal Procedure (hereinafter will be referred as\r\nCr.P.C. for convenience). The respondents herein are the\r\noriginal complainant as well as the State of Kerala.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The learned counsel for the revision\r\npetitioners, while assailing the concurrent verdicts of the\r\ntrial court raised an important legal question, and the\r\nsame will go to the root of the matter, if found, in favour\r\nof the revision petitioners. In this matter, the complainant\r\nlaunched presecution alleging commission of offence\r\npunishable Under Section 138 of Negotiable Instruments\r\nAct (hereinafter will be referred as \'N.I Act\' for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">convenience), on dishonour of a cheque for\r\nRs.5,26,500/-, alleged to be issued with signatures of the\r\nrevision petitioners, as directors, for and on behalf of the\r\nTeltron Kuri Company Pvt.Ltd.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The legal question that has been pressed\r\ninto before this Court is, whether a prosecution launched\r\nunder Section 142 of the NI Act would lie against the\r\nDirector/Directors of a company without arraying the\r\ncompany as an accused?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. In this connection, the learned counsel for\r\nthe revision petitioner placed a decision of the Apex Court\r\nreported in [(2019) 3 SCC 797], Himanshu v.\r\nB.Shivamurthy and another, where the Apex Court <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">considered exactly similar question in paragraph Nos.11,\r\n12, 13 and 14 of the judgment and held that in the\r\nabsence of company being arraigned as an accused, a\r\ncomplaint against the director is not maintainable, merely\r\nfor the reason that the Director of the Company had\r\nsigned the cheque for and on behalf of the company. It\r\nwas held further that the commission of the offence by\r\nthe company is an express condition precedent to attract\r\nvicarious liability of Director. Therefore, the ratio of the\r\ndecision, indubitably, is that, in a prosecution alleging\r\ncommission of the offence punishable Under Section 138\r\nof N.I Act, when cheque being issued by a company, a\r\nprosecution shall not sustain without arraying the\r\ncompany as an accused. No doubt, then its\r\ndirector/directors can be arrayed as co-accused, being\r\nsignatory/signatories of the cheque. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. In this case, admittedly, the cheque was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">issued for and on behalf of a company and the company\r\nis not arraigned as an accused. Therefore, in view of the\r\nabove legal position, the entire prosecution is vitiated and\r\naccordingly, the concurrent finding of conviction and\r\nsentence are liable to be set aside.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Accordingly, the revision petition stands\r\nallowed and conviction and sentence impugned stand set\r\naside.</b></span></p>', '4d4aae531b900f43f8988e48350b093f.jpeg', '325bf941cc00b8e8889f82eada03e60d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-29', 1, '', '', '2022-11-28 16:12:54', '2022-11-29 10:57:14'),
(2450, 'X0PTayUyuAuBeDKJFeS6g81gK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Odisha Resettlement and Rehabilitation Policy, 2006. Supreme Court orders immediate grant of  facilities and amenities to SC/ST and Tribal landowners. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Mahanadi Coal Fields Ltd and another Vs Mathis Oram and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Miscellaneous Application 231 of 2019 decided on 3 November 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Uday Umesh Lalit, Justice S. Ravindra Bhat and Justice Bela M. Trivedi.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. Mahanadi Coalfields Ltd. (hereinafter, “MCL”) is a subsidiary of Coal India Ltd. (hereinafter, “CIL”) the biggest coal producer in the country. MCL was aggrieved by an order2 of the Orissa High Court, wherein the High Court directed the Central Government and MCL to immediately proceed under provisions of the Coal Bearing Areas (Acquisition and Development) Act, 1957 (hereinafter, “CBA Act”) to determine and disburse compensation payable to landowners as expeditiously as possible, preferably within six months.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. The Central Government issued the preliminary notification under Section 4(1) of the CBA Act on 11.02.1987, conveying its intention to prospect for coal in village Gopalpur and others, district Sundergarh, Orissa. This was followed by another notification under Section 7(1) of the CBA Act on 27.07.1987 for acquisition of the notified lands. Finally, by notification dated 10.07.1989, the declaration of acquisition of the land under Section 9 of the CBA Act was made, which led to the lands being vested absolutely in the Central Government. On <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20.03.1993, the Central Government issued notification under Section 11 of the CBA Act, vesting the acquired land and all rights therein in MCL, retrospectively with effect from 17.11.1991. The writ petitioners before the High Court were landowners who were not paid any compensation for their lands. After unavailingly seeking the same, the landowners approached the High Court seeking direction for compensation. Before the High Court, the landowners’ claims were mired in a dispute between Coal India Ltd. (hereinafter, “CIL”) and the Central Government. CIL urged that it no longer required the lands, whereas the Central Government rejected CIL’s proposal for denotification by order dated 12.09.2006. The High Court held that a land oustee under Section 9 of the CBA Act was to be paid compensation after taking into consideration the factors enumerated under Section 13(5) of the CBA Act. MCL preferred a special leave petition before this court. The court sought the assistance of the then Solicitor General for India, Mr Gopal Subramanium, who proposed a scheme which was accepted by this court, in its judgment reported as Mahanadi Coal Fields Ltd. (supra).</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">68. Having regard to the following discussion, it is held as follows: i. Re point no.1 - compensation for the land acquired:</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">cut-off date for determining compensation for land acquired is to be based upon the cutoff date approved by this court in relation to village Gopalpur, i.e., September 2010. At the same time, it is directed that since common cut-off date has been accepted, all benefits flowing from it, including statutory interest upon compensation and solatium, is determinable on the basis of that cut-off date for the entire acquisition.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">ii. Re point no. 2 –</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-size: 12pt;\">on the applicability of the R&R Act, 2013: the R&R Act cannot apply prior to the date it was brought into force i.e., before 01.01.2014. In the present case, it applies from the date the Central Government issued a notification bringing into force the proceedings of the First, Second and Third Schedules to the enactment specified in the Fourth Schedule, which in this case was the CBA Act. The date therefore, on which the R&R Act, 2013 is applicable from, is 28.08.2015. Additionally, the report which was finalised before that date cannot be interfered with. The land owners and displaced families residing in the villages for which reports were prepared earlier than 28.08.2015, would not therefore be entitled to the benefits of the R&R Act, 2013. Hence, the benefits of the </span><span style=\"font-size: 1rem; font-family: var(--bs-font-sans-serif);\">R&R Act apply to displaced families and land owners of Kiripsira, Ratansara, Jhupuranga and Tumulia.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">iii. Re point no. 3, 4 and 5: </span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">a. It is held that the R&R Policy 2006 as amended by the 2013 policy applies for the purpose of employment benefits.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">b. A family unit would comprise of head of family or father, a major son, and an unmarried daughter having regard to the definition and the note appended thereof. In case, for some reason, the major son cannot be given employment, and there exists a major grandson, he would then be eligible for consideration. In other words, two members (father and son or father and grandson) would be eligible for employment and not three, in addition to the unmarried daughter who is also to be treated as separate unit.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">c. This court is of the opinion that the Commission could not reopen determinations based upon change of policies of the State given that the benefits adjudicated by it based on factual determinations has crystallised. In many cases, MCL has actually provided employment to several individuals. Consequently, it is held that all cases that have been adjudicated and were approved by this court cannot be reopened. <br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">iv. Re point no. 6:</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">a. On the point of housing plots, it is hereby declared and directed that the State and MCL are under an obligation to ensure that the land acquired by it in those areas which are to be developed, have to be developed. The State Government shall ensure that at least three nodal officers from the departments concerned are deployed for facilitating this task of coordinating with all agencies and ensuring that the development of the plots duly takes place to enable the Collector to make the necessary allotments within the time <span style=\"font-size: 12pt;\">indicated. These nodal officials shall be duly empowered by the state, through appropriate notifications to issue all necessary consequential orders, for the implementation of resettlement and rehabilitation measures. The Chief Secretary of the Orissa State Government shall select the officers, and issue the necessary notifications. Furthermore, the State shall ensure that these officers are not posted out, for at least 3 years, or till the task of rehabilitation and resettlement is completed.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\">b. The Collector shall ensure that the plots earmarked are duly notified for the concerned villages and land owners by giving due publicity and adequate notice. The views of the landowners shall be ascertained and noted, for which purpose, adequate notice shall be given, specifying the venue, date and time of consultation.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\">c. In case any individual land owner(s) are not interested for allotment of the plots, it is open for them to state so. The Collector shall in such event record their disclaimer expressly in writing and issue a certificate. In that event the displaced family would be entitled to a one-time cash settlement of ?25 lakhs.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\">d. After ascertaining the number of displaced families’ entitlements, and having regard to the availability of plots, the Collector shall conduct a draw of lots, and if needed, more than one draw of lots, whereby plots are allotted to the concerned displaced families. In case, for any reason such plot or plots cannot be handed over within two years, or are not available, the leftover families so to say would be entitled to the one-time compensation of ?25 lakhs with interest @ 7% per annum, for two years.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-size: 1rem; font-family: var(--bs-font-sans-serif);\">v. Re point no. 7:</span><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">a. The State shall ensure that all facilities and amenities are developed in accordance with the Third Schedule to the R&R Act, 2013 within <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">three years in which plots are handed over to the displaced families or in any event within three years from the date of this judgment. The necessary funding for this purpose shall be by MCL, in addition to the State’s obligation to spend its resources.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">b. The members of the SC/ST communities shall be entitled to the preservation and protection of their status in view of Section 42 of the R&R Act, 2013. Consequently, the concerned Collectors shall ensure that appropriate caste certificates are issued in this regard, given that land owners have been moved involuntarily and would have to migrate to other areas.</span><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">70. It is hereby recorded that the directions made in this judgment, are in the exercise of its special powers to do justice to the parties, under Article 142 of the Constitution, since the approach adopted in the previous orders, was to ensure that the landowners are not put to further hardship and agony, of prolonged wait. All matters are disposed of in terms of the above directions. There shall be no order as to costs.</span></p>', '3b6f62b5da31f523d5ebe859e7a920af.jpeg', '08a08fa497e79a43a3ff34922cc723e5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-11-30', 1, '', '', '2022-11-29 16:35:39', '2022-11-30 10:55:03'),
(2454, 'QIGrB9fMMZyPvD7Z44QqSwryc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Civil Services Rules. No enquiry can be initiated against a retired person in respect of an event which had taken place more than four years prior to the enquiry. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Anil Kumar and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 17708 of 2022 decided on 16 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.G. Pandit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Learned counsel for the petitioners would\r\nsubmit that the petitioners retired from second\r\nrespondent – the Karnataka Housing Board (for short\r\nKHB) on attaining the age of superannuation on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">30.06.2018 and 31.08.2020 respectively. Subsequent to\r\ntheir retirement, Annexure-C, Charge Memo dated\r\n21.06.2022 is issued to the petitioners initiating enquiry\r\nin respect of an event taken place in the year 2005-06.\r\nLearned counsel would submit that in terms of Rule 214\r\n(2) (b)(ii) of the Karnataka Civil Services Rules [for short\r\nKCSRs], Charge memo would not be maintainable and\r\nno enquiry could be initiated against a retired person in\r\nrespect of an event which had taken place more than\r\nfour years prior to institution of enquiry against retired\r\nGovernment Servant. Thus, he submits that only on the\r\nground that initiation of enquiry under Annexure-C,\r\nCharge Memo dated 21.06.2022 is barred under Rule\r\n214 (2) (b)(ii) of the KCSRs, it is liable to be set aside.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. It is not in dispute that petitioners retired on\r\n30.06.2018 and 31.08.2020 respectively on attaining\r\nthe age of superannuation. Charge Memo at\r\nAnnexure-C dated 21.06.2022 was issued subsequent\r\nto retirement of petitioners. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The above Rule which is applicable to the\r\nemployees of KHB would not permit initiation of enquiry\r\nin respect of an event which took place more than 4\r\nyears before such institution in respect of a retired\r\nemployee.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. In the case on hand, initiation of enquiry\r\nand issuance of Charge Memo dated 21.06.2022\r\n(Annexure-C) is in respect of an event which took place\r\nmore than 4 years before such institution against\r\nretired petitioners. Thus, the institution of enquiry\r\nunder Charge Memo is barred by Rule 214 (2)(b)(ii) of\r\nKCSRs. Thus, the Charge Memo is not sustainable in\r\nlaw.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>a) Writ petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ec23a8abb1d00791ce03c39279227586.JPG', '2a38acd8699dbe372541bcc590520e78.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-01', 1, '', '', '2022-11-30 13:08:55', '2022-12-01 12:12:45'),
(2455, 'cO0QpNeE9byZt5F8t5krb5UMO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Order under section 148A(d) of the Income Tax Act, 1961 is invalid if the same is issued after three years of relevant assessment year and the amount escaped from tax is below Rs. 50 lakhs. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Yashodara Marar Vs Income Tax Officer<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 13562 of 2022 decided on 28 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.R. Krishna Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. In this writ petition, the petitioner seeks quashing of the\r\nimpugned order dated 31.03.2022 passed under Section 148A(d)\r\nof the Income Tax Act, 1961 (for short, hereinafter referred to as\r\n\"the I.T. Act\" by the respondent at Annexure-J and for other\r\nconsequential reliefs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The material on record discloses that on 08.02.2012, the\r\npetitioner along with her mother and sister entered into an\r\nAgreement of Sale for purchase of a residential apartment in\r\nLegacy Estilo developed by M/s.Legacy Global Projects Limited\r\nfor total sale consideration of Rs.77,00,000/-.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. It is contended that out of the total sale consideration of\r\nRs.77,00,000/- paid jointly by the petitioner, her mother and\r\nsister, petitioner\'s contribution was only Rs.8.3 lakhs. It is\r\ncontended that since the project was not completed within the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">stipulated time, the petitioner, her mother and sister negotiated\r\nwith the builder to provide an alternative apartment at Legacy\r\nEldora and the sale consideration of Rs.77,00,000/- already paid\r\nby them would be adjusted towards the apartment at Legacy\r\nEldora.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. A plain reading of Section 45 of the T.P. Act clearly\r\nindicates that even in the absence of evidence as to the interests\r\nin the funds to which the persons were entitled respectively or as\r\nto the shares which they respectively advanced, such persons\r\nshall be presumed to be equally interested in the property.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. In the instant case, in the light of the undisputed fact that\r\nout of total sale consideration of Rs.77,00,000/-, even assuming\r\nthat the petitioner has failed to establish that she had contributed\r\nRs.8.3 lakhs, even then by applying the provisions of Section 45\r\nof the T.P. Act, the share and interest of the petitioner would\r\ncome to Rs.26,00,000/- which is less than Rs.50,00,000/- as\r\nrequired for the purpose of limitation under Section 149 of the I.T.\r\nAct. Under these circumstances, I am of the considered opinion\r\nthat impugned order dated 31.03.2022 passed under Section <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">148A(d) of the I.T. Act directing issuance of notice under Section\r\n148 of the I.T. Act for the assessment year 2015-16 deserves to\r\nbe quashed on the ground that this assessment is clearly barred\r\nby limitation.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> (i) The writ petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd551f03a256f71c7072ad7f86b3e1ab4.JPG', 'a94c89db2b243611fca0874aedc46f6d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-02', 1, '', '', '2022-11-30 15:03:25', '2022-12-02 03:20:26'),
(2456, 'W7PU8BZHQkz2DzjfxETgvCsRi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Punja lands in Dakshina Kannada District can be brought under cultivation and occupancy rights can be granted u/s 48A of the Karnataka Land Reforms Act, 1961. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Lord Bishop and others Vs The Land Tribunal and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 1762 of 2005 decided on 29 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The 1st Petitioner Bishop and the 2nd Petitioner his\r\ntransferee are before the Writ Court for laying a challenge\r\nto the Land Tribunal order dated 21.10.1978 to the extent\r\nthat it comprises of land admeasuring 01Acre & 15 cents in\r\nSy.No.64/4 of Arkula Village and land admeasuring 01Acre\r\n& 48 cents in Sy.No.1/1a of Adyar Village, Bantwal Taluka.\r\nThey do not have any grievance against grant of occupancy\r\nin respect of other lands comprised in the order. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Having heard the learned counsel for the parties\r\nand having perused the Petition papers, this Court declines\r\nindulgence in the matter for the following reasons:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> a) The Land Tribunal granted the occupancy inter\r\nalia in respect of the subject lands vide order dated\r\n21.10.1978. The Writ Petition has been filed on 13.10.2005\r\ni.e., with a delay of about 27 years. The impugned order\r\nspecifically mentions about the ‘No Objection’ of the 1st\r\nPetitioner for grant of occupancy. The tenants of the land\r\nhad produced Levy Receipts and other material before the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Tribunal. The extent of land in actual cultivation of the\r\ntenants has been ascertained after the survey. A perusal of\r\nthe original LCR shows that the 1st Petitioner was issued\r\nnotice dated 20.09.1978 and only thereafter he notified his\r\nconsent to the claim of the tenants. In fact, Form 10 itself\r\nwas issued on 21.12.1998. It is not that the 1st Petitioner is\r\na peasant, an agriculturist or a labourer; he is a qualified\r\nBishop who will have wide exposure to the outer world.\r\nTherefore, the contention of the Petitioners that they did\r\nnot have notice of the LT proceedings cannot be accepted,\r\nwhen delay runs into decades and third party rights have\r\nbeen created.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">f) The last contention of the Petitioners that the\r\nsubject lands are punja lands and therefore, no occupancy\r\ncould have been granted, the same being non-agricultural,\r\ncannot be agreed to, at this length of time. Reasons are not\r\nfar to seek: true it is that in Dakshina Kannada region,\r\nordinarily, the punja lands are not treated as agricultural\r\nlands. However, it is not that they cannot be brought under\r\ncultivation. When the 1st Petitioner being the landlord had\r\nconsented to the grant of occupancy unconditionally and in\r\na wholesale way, he cannot now contend to the contrary.\r\nThere is a lot of support for the view that even the punja\r\nlands can be brought under cultivation and therefore, in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">such a case, occupancy can be accorded u/s 48A of the\r\nKarnataka Land Reforms Act, 1961 vide SUBHAKAR vs.\r\nLAND TRIBUNAL, KARKALA TALUK, KARKALA (1999)\r\n4 KLJ 524. For the same reason, the entries in the revenue\r\nrecords depicting the subject land as punja lands do not\r\nmuch matter, the presumptive value arising u/s 133 of the\r\nKarnataka Land Revenue Act, 1964, notwithstanding.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">g)... </span></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The 2nd Petitioner has bought the land, is true; at the same\r\ntime, the private Respondents too have bought it, is equally\r\ntrue. Had the 2nd Petitioner made reasonable enquiries, he </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">could have known about the tenancy proceedings that\r\nculminated into grant of occupancy and subsequently,\r\nissuance of Form 10. Land Tribunal order and this Form are\r\ntreated as the documents of title, on the basis of which\r\nentries in the revenue records have to be made. Setting\r\naside the LT order at this stage would cause comparatively\r\nmore injustice to the private Respondents who have bought\r\nthe land after employing their prudence, whereas this\r\nprudence comparatively lacks qua the Petitioners. The\r\nConstitutional Court exercising equity jurisdiction has to\r\ntake into account a host of factors in doing justice by\r\nstriking a balance between competing equities. The private\r\nRespondents have stood tall and wise in giving up part of\r\ntheir claim.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Writ Courts have to operate a theory of justice that can\r\nserve as the basis of practical reasoning and that would\r\ninvariably include the ways of judging how to reduce\r\ninjustice and advance justice, rather than aiming only at the\r\ncharacterization of perfectly just scenarios. A demand for\r\nperfect justice if conceded to, would breed injustice,\r\ninasmuch as conflicting considerations cannot be fully\r\nresolved in any society. After all, it was John Rawls (1921-\r\n2002) who wrote ‘Justice as Fairness’. The Writ Courts\r\ncannot ignore this mantra that animates the adjudicatory\r\nprocess.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the above circumstances, this Writ Petition fails;\r\nalthough challenge to the impugned Land Tribunal order is\r\nnegatived, a part of the lands now given up by the private\r\nRespondents would enure to the benefit of 2nd Petitioner so\r\nthat he can save his building and the area appurtenant\r\nthereto, which in all is confined to 23 cents, as stated in the\r\nMemo. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4188d253a2e7f2469dcd26faa3eac6b6.JPG', '0c0665d6c403aab76af5367c0c64095e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-02', 1, '', '', '2022-11-30 15:14:58', '2022-12-02 06:59:33'),
(2457, 'rIDvswLkv0Qty9n06Eo4q8QpG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'State cannot barter away public property. Transparency in procedure can come about only when the properties are put to public auction and every citizen is permitted to participate. Karnataka High Court. ', '<p><b>MR. CHANDRA SUVARNA vs STATE OF KARNATAKA and others. <br>WRIT PETITION NO.19527/2021 decided on 24TH DAY OF NOVEMBER, 2022<br></b></p><p><b>11. Political interference of any kind in public\r\nadministration would put such administration in peril. A\r\nclassic illustration of the said statement is the case at hand.\r\nThe application that has come to be rejected is immediately\r\nprocessed and allotted to the 4th respondent only because\r\nthe same has been recommended for such allotment as a\r\nspecial case. Where from special case would spring in, is\r\nunknown. It cannot have any backing in law. The case\r\nwhich is directed to be considered as special case is, on the\r\nface of it, arbitrary as it takes away the right of\r\nparticipation by others. Political interference is not stopped\r\neven during the pendency of the petition. The learned\r\ncounsel for the 4th respondent has placed on record a memo to demonstrate that is has become a norm for the\r\nState to act upon political interference in granting public\r\nproperties, as special cases, to the favoured lot.</b></p><p><b> 12. It need no emphasis that the State is governed by\r\n‘rule of law’ and not by ‘rule of men’. A few men at the\r\nhelm of affairs or the powers that be, cannot be seen to act\r\nin a manner that would thwart the rule of law and generate\r\na concept “you show me the person; I will tell you the\r\nlaw”. This Court would not permit the State Government to\r\nact in a partisan manner in favour of any applicant. </b></p><p><b>\r\n13. There are number of public properties which can\r\nbe leased out to entrepreneurs. There should be uniformity\r\nin grant of such lands. Such uniformity will come about only\r\nwhen there is transparency in procedure; transparency in\r\nprocedure can come about only when the properties are put\r\nto public auction and every citizen is permitted to\r\nparticipate in the auction. Therefore, the 1st\r\nrespondent/State shall forthwith stop issuing allotment\r\norders of public properties, as special cases, as a product of favouritism or political interference and allot them only by\r\nway of public auction. This case would form the last straw\r\nof admonishing the State for bartering away public property\r\nat its whim and fancy. Any such iteration would, without\r\ndoubt, be viewed seriously, as such actions cannot bear any\r\nsanction under any law. Rule of law is insurmountable. \r\n </b><br></p>', 'fe6cbde4f2ed4ff9ad867277008ee1d1.jpg', 'e3f45f5e8896276a2f298d54252664a6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-01', 1, '', '', '2022-11-30 22:27:57', '2022-12-01 09:51:02');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2458, '8tsF7yE14bLnJUUgwc4ZnNCjh', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Notification declaring the organisation to be unlawful with immediate effect contains sufficient reasons. Karnataka High Court rejects the challenge to the ban of Popular Front of India. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nasir Pasha Vs Union of India.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 21440 of 2022 decided on 30 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Shorn of unnecessary details, the facts in brief, are as\r\nfollows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The petitioner claims to be the President of PFI organization\r\nand claims that the said organization is registered under the\r\nKarnataka Societies Registration Act, 1960. He further claims to be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">working for the empowerment of down trodden section of the\r\nSociety. What brings the petitioner to this Court is declaration of\r\nPFI to be an unlawful organization. The petitioner, by virtue of\r\nbeing a member of the organization claims to be aggrieved by the\r\naction of declaring the organization to be unlawful. Insofar as\r\ndeclaration of the organization to be unlawful under Section 3 of the\r\nUnlawful Activities (Prevention) Act, 1967 (‘the Act’ for short), the\r\nissue has been referred to the Tribunal constituted under Section 4\r\nof the Act where it is pending consideration. What drives the\r\npetitioner to this Court, at this juncture, is the act of the\r\nrespondent/Union of India in bringing the Notification of declaration\r\nof PFI with immediate effect.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. I have given my anxious consideration to the submissions\r\nmade by the learned senior counsel and the learned Solicitor\r\nGeneral of India and have perused the material on record. In\r\nfurtherance whereof, the only issue that false for consideration is:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“Whether the Notification declaring PFI to be unlawful\r\nand bringing the notification into effect immediately violates\r\nsub-section (3) of Section 3 of the Act?</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Later in the year 2017, the High Court of Delhi rendered a\r\njudgment in the case of ISLAMIC RESEARCH FOUNDATION v.\r\nUNION OF INDIA4\r\n(supra) which is in post MOHAMMAD JAFAR\r\ntime considering a ban of Islamic Research Foundation. The ban\r\nwas brought into force with immediate effect. The notification is\r\nextracted and the notification is identical to what the impugned\r\nnotification is.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Delhi High Court was considering an identical notification which\r\ncontained identical reasons considering the judgment rendered by\r\nthe Apex Court in the case of MOHAMMAD JAFAR. Therefore, the\r\ncommon thread that runs through the judgments in the preMOHAMMAD JAFAR time, judgment in the case of MOHAMMAD\r\nJAFAR or the judgment of the Delhi High Court in the post\r\nMOHAMMAD JAFAR time, is that reasons must be recorded in\r\nwriting for bringing the notification which declares an organization\r\nto be unlawful with immediate effect.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">13. A perusal at the notification under challenge would\r\nindicate that reasons are present in the notification itself. Article\r\n19(1)(c) of the Constitution of India on which much emphasis is laid\r\non is also hedged with reasonable restrictions to be imposed in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">certain circumstances under Article 19(4) of the Constitution of\r\nIndia. Therefore, in the light of the judgment rendered by the High\r\nCourt of Delhi in the case of ISLAMIC RESEARCH FOUNDATION\r\nwhich was considering the case of MOHAMMAD JAFAR rendered\r\nby the Apex Court and the fact that reasons are found in the\r\nimpugned notification itself, I do not find any warrant that would\r\nentail interference at the hands of this Court. Any further\r\nconsideration of the submissions made by the learned senior\r\ncounsel for the petitioner would prejudice the proceedings before\r\nthe Tribunal.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. For the aforesaid reasons, the petition lacking in merit, is\r\ndismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2d74b2875a522b0a6f509fc4c3618286.jpeg', '9b04f8dc5a6915e0d1cfbb97285fee00.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-02', 1, '', '', '2022-12-01 13:01:04', '2022-12-02 10:42:27'),
(2459, 'HxFBnA4oSzJyQXI9KqeWxOtJl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Withdrawal of exemption under the Employees Provident Funds and Miscellaneous Provisions Act on the ground of financial loss of an establishment for three consecutive years is not unconstitutional. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Shell India Markets Pvt. Ltd and others Vs The Central Provident Fund Commissioner and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.A. 1722 of 2012 decided on 14 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Alok Aradhe and Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Facts leading to filing of this appeal briefly\r\nstated are that appellant No.1 is a company\r\nincorporated under the provisions of Companies Act,\r\n1956 constituted on account of merger between three\r\ncompanies. The appellant No.1 was constituted as a\r\nresult of merger between the three companies. The\r\nappellant No.1 constituted a provident fund trust for\r\nits employees by trust deed dated 06.01.2009. The\r\nappellant No.1, since, had adopted a scheme which\r\noffered better services than the statutory provident\r\nfund schemes, it submitted an application on\r\n26.06.2009 seeking exemption under Section 17(2) of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Employees Provident Funds and Miscellaneous\r\nProvisions Act, 1952 (hereinafter referred to as \'the\r\nAct\' for short) read with para 27A of Employees\r\nProvident Fund Scheme, 1952 (hereinafter referred to\r\nas \'the Scheme\' for short).</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. We have considered the submissions made\r\non both sides and have perused the record. It is trite\r\nlaw that a subordinate legislation can be assailed on\r\nthe ground that its provisions are either in conflict\r\nwith the Constitution or the governing statute.\r\nSection 17 of the Act deals with the power of the\r\nappropriate government to exempt either prospectively\r\nor retrospectively from the operation of all or any of\r\nthe provisions of the scheme in relation to an\r\nestablishment as prohibited thereunder. Para 27A of\r\nthe scheme enables the appropriate Government to\r\nexempt any establishment from operation of all or any\r\nof the provisions of the scheme. Para 27AA specifies\r\nthe terms and conditions under which exemption is to\r\nbe granted. Appendix A contains the conditions to be\r\nimposed while granting exemption under Section 17 of\r\nthe Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. The right to claim exemption from the\r\nprovisions of the Act is a statutory right, which is\r\ngoverned by provisions of the Act. The Act envisages\r\ngrant of exemption subject to fulfillment of terms and\r\nconditions. Section 17 of the Act empowers the\r\nappropriate government to impose terms and\r\nconditions. Condition No.25 of Appendix-A provides\r\nthat a loss for three consecutive financial years or\r\nerosion in their capital base shall be a ground to\r\nwithdraw the exemption.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">11. Under Section 17 of the Act, the\r\nappropriate government has power to impose terms\r\nand conditions and therefore, the said condition </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cannot be said to be violative of Section 17 of the Act.\r\nWe have carefully perused the petition. The averments\r\nmade in the petition is vague and does not clearly\r\nmake out the grounds of challenge to condition 25 of\r\nAppendix-A. By incorporating Condition No.25 in\r\nAppendix-A, it has been provided that financial loss of\r\nan establishment for three consecutive years would\r\nresult in withdrawal of exemption. The parent Act\r\nitself empowers the imposition of such terms and\r\nconditions as may be prescribed and condition No.25\r\ncannot be said to be suffering from the vice of\r\nexcessive delegation.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12. For the aforementioned reasons, in our\r\nconsidered opinion, the learned Single Judge has\r\nrightly concluded that condition No.25 of the\r\nAppendix-A of the scheme is intra vires. We do not</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">find any ground to differ with the view taken by the\r\nlearned Single Judge.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>In the result, the appeal fails and is hereby\r\ndismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b2c69915f10ad787983b68fbf2853979.jpeg', 'ec2f1e876edabdf9a651b7777b7f407c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-02', 1, '', '', '2022-12-01 13:46:13', '2022-12-02 19:13:04'),
(2460, 'bFbQ928SjDeAyjlVVlf46nsTk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Kerala Promotion of Tree Growth in Non-Forest Areas Act. Only Divisional Forest Officer is competent to file final report under Section 9(3) of the Act. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jose and others Vs State of Kerala.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.MC 8920 of 2019 decided on 8 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A. Badharudeen.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The legal question that has been posed in this matter is the\r\ncompetency of the Forest Range Officer to file a report, as mandated under\r\nSection 9(3) of the Kerala Promotion of Tree Growth in Non-Forest Areas Act,\r\n2005 (for short ‘the Act, 2005’ hereinafter). It is argued by the learned counsel\r\nfor the petitioners that, as per Section 9(1) the Act, 2005, an Officer not below\r\nthe rank of a Forester, if he has reason to believe that any tree has been cut or\r\nany timber has been transported in contravention of Section 6, he may seize\r\nthe timber together with all tools, ropes, chains and other articles used in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">commission of such offence and all vehicles, boats or animals used for\r\ncarrying such timber. Section 9 provides that every Officer seizing any timber\r\nshall report the same to the Divisional Forest Officer and as per Section 9(3),\r\nthe Divisional Forest Officer is the competent person to file a report after\r\nsatisfying that the timber mentioned in such report is of any tree transported in\r\ncontravention of Section 6, before the competent Judicial First Class\r\nMagistrate Court.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. On reading Section 9(1), it has been provided that a person, who\r\nis not below the rank of a Forester, can seize the trees together with the tools,\r\nif the same is found to be in contravention of Section 6 of the Act, 2005.\r\nHowever, Section 9(2) provides the procedure when such an officer seizes the\r\ncontraband. Sub Section 2 provides that the Officer, who has seized the\r\ncontraband, shall, as soon as may be, make a report of such seizure to the\r\nDivisional Forest Officer having jurisdiction over the area. Section 9(3)\r\nprovides that the Divisional Forest Officer, to whom a report is made under\r\nSection 2, shall file a report before the competent Magistrate Court, if he finds\r\nthat the seized articles would constitute violation of Section 6. It is true that in\r\norder to institute a prosecution, the Divisional Forest Officer also shall grant\r\nsanction as provided under Section 12 of the Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Reading Sections 9 and 12 of the Act, there is lack of clarity and\r\ninconsistency. That is to say, as per Section 9(3) of the Act, the report (final\r\nreport) shall be filed by the Divisional Forest Officer. At the same time, the\r\nprosecution sanctioning authority also is the Divisional Forest Officer. So, the\r\nlegislature must apply its wisdom either to designate an officer below the rank\r\nof the Divisional Forest Officer to file report as provided under Section 9(3) or\r\nthe sanctioning authority shall be a person holding the post superior to the post\r\nof the Divisional Forest Officer. Such an amendment is inevitable to clear the\r\ninconsistency.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Going by the ratio in Abitha Beebi & Ors. v. State of Kerala &\r\nanr.\'s case (supra), on no stretch of imagination it has to be held that a person\r\nbelow the rank of a Forest Officer is competent to file final report as provided\r\nunder Section 9(3) of the Act. Till the legislature on its wisdom amends\r\nstatutory provision as pointed out above, it is better to hold that the final report\r\ncan be filed by the Divisional Forest Officer after granting sanction to do the\r\nsame, so as to effectuate the intention of the legislature. Therefore,\r\nhereinafter, when final report will be filed under this Act, the said procedure\r\nmay be followed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. The foregoing discussion would lead to the conclusion that the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Divisional Forest Officer alone is competent to file report under Section 9(3) of\r\nthe Act and the same presupposes the fact that Forest Range Officer is not a\r\ncompetent officer under Section 9(3) to file final report. Therefore, the final\r\nreport in this case shall not sustain in the eye of law and therefore the\r\nDivisional Forest Officer is directed to get back the report and file the same\r\nafresh, as herein above observed. Accordingly, C.C.No.2198/2017 pending\r\nbefore the Judicial First Class Magistrate Court, Irinjalakuda shall stand\r\nquashed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11.... </span></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">This Crl.M.C shall stand disposed of as above.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '419db6d958d3eef1136cdf8e8934d6c2.jpeg', '6c918b9d77c67be5439841ebcebb1b78.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-02', 1, '', '', '2022-12-01 15:11:39', '2022-12-02 08:44:11'),
(2461, 'ad19pWcZiSVEuhtSoUPKXEDCx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Proceedings under Section 138 N.I. Act cannot be initiated against a person who ceased to be director of a Company as on the date of issuance of the cheque. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sunita Bharatkumar and others Vs Pradeep Basavaraj.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 100646 of 2022 decided on 4 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>A private complaint is filed under Section 200 of the\r\nCode of Criminal Procedure, 1973 for the offence\r\npunishable under Section 138 of the Negotiable\r\nInstruments Act, 1881 (for short, ‘the Act’), alleging that\r\nthe cheque, which was issued by the Company in favour of\r\nthe complainant, when presented for realisation was\r\ndishonoured for want of funds. The learned Magistrate,\r\nafter recording the sworn statement of the complainant,\r\ntook cognizance of the offence punishable under Section\r\n138 of the Act and issued summons to the accused. Taking\r\nexception to the same, the petitioners-accused Nos.3 and\r\n4 are before this Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The cheque in question was issued on\r\n31.08.2020. The petitioners, who were the Directors of the\r\nCompany, ceased to be the Directors of the Company with\r\neffect from 22.03.2017 which is evident from the Form\r\nNo.DIR-12 issued by Registrar of the Companies and the\r\nsame has remained uncontroverted. Hence, it implies that\r\nthe petitioners ceased to be the Directors of the\r\nCompanies as on the date of issuance of the cheque.\r\nHence, registration of the complaint against the petitioners\r\nfor the offence punishable under Section 138 of the Act is\r\nnot sustainable</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The criminal petition is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '423fd64a0c8deef7b424eea6dccf4951.jpeg', 'aec502548cf270306df7d4732565507c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-05', 1, '', '', '2022-12-01 15:28:14', '2022-12-05 03:20:53'),
(2462, 'YXiqmTlVtPW1wVYd94d1ubxI7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Dowry death. Failure to explain reasons within the knowledge of the accused, under Section 313 Cr.P.C, renders the defence of the accused unreliable. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mohammed Ayoob Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1019 of 2014 decided on 29 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rural Police, Chintamani, charge sheeted two\r\naccused persons for their trial in relation to offences\r\npunishable under sections 3, 4 and 6 of Dowry Prohibition\r\nAct and sections 498A, 304B, 302 and 306 IPC. Initially,\r\nthe trial court framed charges for the offences punishable\r\nunder sections 3, 4 and 6 of Dowry Prohibition Act, and\r\nsections 498A, 304B and 306 IPC. Charge under section\r\n302 IPC was raised at later stage.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The prosecution case is this :</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Reshma Taj, daughter of PW2 and PW3, was given in\r\nmarriage to accused. Their marriage was solemnized on\r\n5.6.2005. She died on 7.10.2007. PW2 made a report of\r\ndeath of his daughter to the police alleging that three\r\nmonths before the marriage, there took place a\r\nnegotiation in connection with the marriage and, at that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">time, accused made a demand for cash of Rs.1,00,000/-,\r\n250 grams of gold, a CT100 Bajaj motor cycle and house\r\nhold articles. PW2 agreed for giving cash of Rs.80,000/-\r\nand meeting his other demands. At the time of\r\nengagement, the demand of accused was met and\r\nmarriage was thereafter performed. When Reshma Taj\r\nwent to her husband’s house after the marriage, she was\r\ntreated well for a few days and then the accused started\r\ndemanding that she should go to her parents’ house and\r\nbring additional dowry in the form of cash and gold. In\r\nthis connection she used to be subjected to physical and\r\nmental torture, and coming to know of these\r\ndevelopments, PW2 somehow was able to arrange\r\nRs.25,000/- for the first time and Rs.15,000/- for the\r\nsecond time for being given to the accused and a silk\r\nsaree priced at Rs.1,00,000/- for the sake of his daughter.\r\nEven then the demand by the accused did not stop and\r\nseveral panchayats were held in vain. On 7.10.2007 at\r\n1.20 PM, accused compelled his wife to bring Rs.80,000/-\r\nfrom her parents house and as she refused, she was set </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">on fire by pouring petrol on her body. Reshma Taj\r\nsuccumbed to the injuries.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The trial court has recorded the reasons that the\r\noral testimonies of PWs1 to 3 is believable. They have\r\nclearly stated that accused received dowry in the form of\r\ncash and jewellery before the marriage and did not return\r\nthe same after the marriage or within three months after\r\nthe death of his wife and thus the offences under sections\r\n3, 4 and 6 of the Dowry Prohibition Act would get\r\nestablished.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">9. I have considered the arguments. The accused\r\nhas stood convicted for the offences under sections 3, 4, 6\r\nof Dowry Prohibition Act, and sections 498A, 306 and\r\n304B of IPC. Unless harassment on the deceased Reshma\r\nTaj in relation to demand for dowry is established,\r\nconviction of the accused for the offence under section\r\n304B IPC cannot be sustained, and in order to sustain\r\nconviction for these two offences, the offences under\r\nsections 3 and 4 of Dowry Prohibition Act should get\r\nestablished. If a woman is subjected to cruelty by a\r\nhusband or his relative, he may be punished in accordance\r\nwith section 498A of IPC. Explanations (a) and (b) give\r\nthe meaning of the word cruelty in two contexts.\r\nAccording to Explanation (a), willful conduct of such a\r\nnature as is likely to drive the woman to commit suicide or\r\nto cause grave injury or danger to life, limb or health </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(mental or physical) amounts to cruelty. Explanation (b)\r\nstates that harassment of a woman to coerce her or her\r\nrelative to meet demand for property or valuable security\r\namounts to cruelty, and if harassment is meted out to a\r\nwoman for her failure to meet the demand by her husband\r\nor husband’s relative also falls within the realm of the\r\nmeaning of the word ‘cruelty’.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. In the case on hand, the prominent witnesses\r\nare PWs1, 2 and 3, being the brother, father and mother\r\nrespectively of Reshma Taj. The trial court has believed\r\nthe testimonies of these witnesses. There is nothing\r\nwrong in placing absolute reliance on the testimonies of\r\nrelated witnesses provided the testimonies are trustworthy\r\nand free of interestedness, in the sense that the oral\r\nevidence must appear to be not exaggerated or filled with\r\nrevengeful attitude as has been observed in the referred\r\njudgment of the Supreme Court.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. Notwithstanding the foregoing reasons, it can\r\nstill be held that conviction of the accused for the offences\r\nunder sections 498A and 306 IPC can be sustained, for the\r\nreasons which I delve upon now; Of course, the trial court\r\nhas not dealt with the issue from this angle. The scope of\r\nsection 498A IPC has already been discussed, Explanation\r\n(a) of section 498A is applicable here. In addition, section\r\n113A of the Evidence Act can also be invoked. This section\r\nhelps the court to presume that the husband of the\r\nwoman or his relative abetted that woman to commit\r\nsuicide, and in order to draw presumption, the essential <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ingredients to be present are - suicide of a woman within\r\nseven years from the date of marriage, cruelty on that\r\nwoman by her husband or his relative and existence of\r\nother circumstances. This is a rebuttable presumption.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. Giving all these details, she approached Masjid\r\ncommittee with a representation, Ex.P3 dated 05.02.2007.\r\nOn 16.03.2007, the members of Masjid committee held a\r\npanchayat in the presence of accused and at that time he\r\nsought apology for all his misdeeds which is evidenced by\r\nEx.P5 (Kannada Translation Ex.P.6). Therefore these\r\ndocuments, which are not at all disputed by the accused,\r\nreflect on the conduct of accused in treating his wife.\r\nPW1, PW2 and PW3 have stated that the accused kept\r\nquite for a month after the panchayat and again started\r\nill-treating his wife. The cross- examination of these three\r\nwitnesses is very ineffective, and there are no reasons to\r\ndiscard their testimonies. For these reasons, even if\r\nindependent witnesses were not examined by the\r\nprosecution, it cannot be considered to be fatal. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. The other circumstance is Reshma Taj\r\ncommitted suicide in the house of accused. Defence is\r\nthat she caught fire due to stove burst, this defence just\r\nremained in the form of a suggestion without any <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">material. It is not the defence that Reshma Taj\r\ncommitted suicide being very sensitive or over reactive or\r\nhaving gone to depression. If the testimonies of PW1,\r\nPW2 and PW3 to this extent and Ex.P3 and Ex.P.5 are\r\nconsidered, certainly presumption under section 113A of\r\nEvidence Act can be raised. The accused has failed to\r\nrebut the presumption. If there was some other reason\r\nwithin the knowledge of accused, he could have explained\r\nit when he was examined under Section 313 Cr.P.C. All\r\nthese circumstances clearly fit into meaning of the word\r\ncruelty’’ as found in Explanation (a) to section 498A IPC.\r\nAnd it can be inferred that the conduct of accused was as\r\nsuch that Reshma Taj found no other way but to end her\r\nlife herself. Therefore the conviction of accused for the\r\noffences under Section 498A and Section 306 IPC can be\r\nsustained.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. The trial court has imposed rigorous\r\nimprisonment of two years and fine of Rs.2,000/- for the\r\noffence under section 498A IPC; and rigorous\r\nimprisonment for seven years and fine of Rs.5,000/- for\r\nthe offence under section 306 IPC. For the offence under\r\nsection 306 IPC, the imprisonment period may extend up\r\nto 10 years, it does not prescribe a minimum\r\nimprisonment period. Therefore having regard to overall <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">circumstances, the sentence imposed by the trial court for\r\nthe offence under section 498A IPC can be retained and\r\nsentence of rigorous imprisonment for the offence under\r\nsection 306 IPC can be reduced to three years, without\r\naltering the fine amount.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(a) Appeal is partly allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '391297fbe9b59ea2f46ae63ec32ffd36.JPG', '5d629b90930ab481cce24028c94c305b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-03', 1, '', '', '2022-12-02 15:06:13', '2022-12-03 06:45:42'),
(2463, 'emrk8w7in3Vet6Z6enOinQw2s', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Legal Metrology Act. Common complaint in respect of several distinct offences based on different causes of action on different facts and different nature is not maintainable. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jagmohan Singh Raju Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 103232 of 2022 decided on 14 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">On 25.01.2019, the respondent inspected the premises of\r\naccused No.1, which is a registered retailer in spare parts\r\nmanufactured by M/s. Hero MotoCorp Limited, and seized two\r\npackages. Thereafter, the respondent sent a notice under\r\nSection 48(1) of the Act, calling upon the Company to show\r\ncause as to why action should not be taken for contraventions\r\nunder Sections 18 and 36 of the Act. The Company vide reply\r\ndated 29.03.2019 clarified its position on the above said\r\ncontraventions. The respondent again issued second notice in\r\ncontinuation of the first notice alleging four additional\r\ncontraventions apart from the violation alleged in the notice\r\ndated 18.04.2019 to which the company suitably replied\r\nclarifying that no offences as alleged in the notice dated\r\n18.04.2019 were committed by it. Thereafter, the respondent\r\nfiled a private complaint under Section 200 of the Code of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Criminal Procedure, 1973 for the offences punishable under\r\nSections 31 and 36 of the Legal Metrology Act, 2009 (for short,\r\n‘the Act’), alleging that the packages did not contain requisite\r\ndeclaration. The learned Trial Court, after perusing the\r\ncomplaint, took cognizance of the offences under Sections 36 &\r\n31 of the Act. Taking exception to the same, the petitioner is\r\nbefore this Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. In view of the ratio enunciated by this Court in the\r\naforesaid case, it was obligatory on the part of the respondent\r\nto have passed an order for the petitioner to avail the remedy\r\nof filing an appeal under Section 50 of the Act as the offences\r\nalleged are the offences against which the appeal under Section\r\n50 of the Act would encompass. By not passing any order on\r\nthe reply given by the petitioner to the show cause notice\r\nissued, it has rendered the remedy of appeal under the Act\r\nillusory or superfluous.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. A perusal of the complaint indicates that a common\r\ncomplaint in respect of several distinct offences allegedly\r\ncommitted by third parties which are based on different causes\r\nof action on different facts and different nature is filed and the\r\nsame cannot be said to form part of the subject matter of the\r\nsame complaint. The common complaint is not maintainable for\r\njoinder of different causes and the same is impermissible under\r\nSections 219 and 220 of Cr.P.C.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. For the foregoing discussion, continuation of the\r\ncriminal proceedings will be an abuse of process of law since\r\nthe probability of conviction of the petitioner is remote and\r\nbleak.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>ORDER.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> The criminal petition is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd81054bcbab1c76def75cd0bb6384489.jpeg', '8622231cd8b11d4186d6c1e8ab892b21.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-03', 1, '', '', '2022-12-02 16:00:58', '2022-12-03 11:56:38'),
(2464, 'iB7VDZtxGbE1dYhLSAd82MX8u', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'MVC Act. Insurance Company cannot escape its liability by merely branding driving license as fake without actually proving the same. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Regional Manager United India Insurance Company Limited Vs Master Tharun C. Gowda and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.F.A 5197 of 2014 decided on 10 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The factual matrix of the case of the claimant before\r\nthe Tribunal is that a student, who is aged about 8 years, met\r\nwith an accident. On 26.12.2010 at about 2:30 p.m, the\r\npetitioner after carefully observing the traffic movements was a\r\npedestrian on the extreme left side on Koppa to Hosagavi road,\r\nAbalavadi Village, in front of the house of the petitioner, the\r\ndriver of Tata Ace 207 Tempo bearing registration No.KA-02-A9301, came from Hosagavi road side in a rash and negligent\r\nmanner, dashed against him, as a result, he had sustained\r\ninjuries. Immediately he was shifted to Vikram Hospital at\r\nMandya, wherein, after the first aid treatment he was referred to\r\nVikram Jeeva Hospital at Mysuru, wherein, he took treatment as\r\nan inpatient.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">10. Apart from that, it is rightly pointed out by the\r\ncounsel appearing for the respondent that the author of the\r\ndocument has not been examined in a case of specific contention\r\nwas urged by the Insurance Company that the document was a\r\nfake document and relies upon the document in support of their\r\nclaim, ought to have proved the same by examining the author\r\nof the document. The Tribunal while considering the material on\r\nrecord, particularly, in paragraph No.32, observed that the same\r\nhas not been proved by examining the author of the document.\r\nMere taking of defense that the driving license is fake is not\r\nenough and the same has to be proved. In paragraph No.32 of\r\nthe judgment, the Tribunal had taken note of Ex.R6 as well as\r\nEx.R7 and also taken note of the validity of the period and Ex.R7\r\nclearly shows that the RTO, Davanagere has issued the driving\r\nlicense to A.Natarajan on 21.07.2008. It is further observed\r\nthat the burden casted on the respondent – Insurance Company </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to establish that whether this driving license is valid driving\r\nlicense or not, the same has not been done. Respondent No.3,\r\nwho is the owner of the offending vehicle, has produced Ex.R7-\r\nOriginal Driving License. Ex.R7, clearly discloses that on the date\r\nof the accident, the driver was holding the valid driving license.\r\nBut the Insurance Company failed to dis-prove the document –\r\nEx.R7 and also the endorsement Ex.R3. Ex.R3, is in respect of\r\nA.S.Nataranjan and not in respect of A.Natarajan. In the\r\nabsence of proving of the document that the same is a fake\r\ndocument, the question of interfering with the finding of the\r\nTribunal does not arise. The burden lies on the Insurance\r\nCompany to prove the same except relying upon the\r\nendorsement, nothing is placed on record and also the author of\r\nthe document has not been examined. Under the circumstances,\r\nI do not find any force in the contention of the Insurance\r\nCompany that the driving license was a fake document. Unless\r\nthe same is proved as a fake document, the shifting of the\r\nliability on the owner does not arise.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The appeal is dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1dc9a53ab94b03fbc3b765dcc3ae6af4.JPG', '0b17b543c2f6ce5948388f0d31ad45e8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-05', 1, '', '', '2022-12-02 16:12:14', '2022-12-05 07:01:30');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2465, 'EuJG3lahnCwiopA8gnMmzCCNV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sales officer does not fall within the definition of workman and hence cannot raise a dispute under the Industrial Dispute Act. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pralhad B Kulkarni Vs M/S Godrej Agrovet Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 106364 of 2014 decided on 8 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner claiming that when he was working as\r\nsales Officer in the respondent Company was terminated\r\nillegally and registered a dispute under Section 10(4A) of\r\nthe Industrial Dispute (Karnataka Amendment) Act, 1987.\r\nThe respondent management entered appearance and\r\nfiled statement of objections interalia contending that the\r\ndispute raised by the petitioner is not maintainable, since\r\nthe petitioner who was working as sales officer does not\r\nfall under the definition of workman as defined under\r\nSection 2(s) of the Industrial Dispute Act, 1947.The\r\nLabour Court after recording the evidence of the workman\r\nand the management recorded categorical finding stating\r\nthat though the termination of the petitioner is illegal,\r\nhowever, the dispute raised by him is not maintainable,\r\nsince he does not fall under the definition of ‘workman’ as\r\ndefined under Section 2(s) of the Act, 1947. Taking\r\nexception of the same this petition is filed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. In the claim petition, the petitioner has claimed\r\nthat when he was working as sales promotion officer was\r\nterminated illegally. The petitioner having claimed that he\r\nwas working as sales officer cannot contend that the\r\nLabour Court has not framed an issue as to whether the\r\npetitioner fall under definition of ‘workman’ or not.\r\nAdmittedly, the sales officer does not fall under the\r\ndefinition of workman as defined under Section 2(s) of the\r\nAct, 1947. Hence, submission of the learned counsel for\r\npetitioner that the Labour Court without framing the issue\r\nwith regard to whether the petitioner is workman or not is\r\nnot acceptable.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. He further contended that when he was\r\nterminated illegally, he was working as store in-charge\r\nand as such he comes under the definition of workman.\r\nHowever, no material is placed before the Labour Court to\r\nsubstantiate his claim that the he was working as store incharge as on the date when he was terminated illegally.\r\nThe finding recorded by the Labour Court is on the basis of\r\nevidence in record and in the absence of any illegality or\r\narbitrariness, the finding recorded by the tribunal cannot <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be interfered under Article 227 of Constitution of India.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ petition stands dismissed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c57352588c8431acfa3ed078a56138ce.jpeg', 'f64f895d5330dd3ea88a2c73b3184826.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-05', 1, '', '', '2022-12-02 17:16:51', '2022-12-05 09:59:02'),
(2466, 'CbG9k7hI01qBpQ3Y3huEJ93MP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“The key feature of the policy is essentiality”. Karnataka High Court upholds Government of India policy imposing 30% trade margin on the manufacturer of essential drugs for combating cancer. ', '<p><b>HEALTHCARE GLOBAL ENTERPRISES LIMITED vs  UNION OF INDIA<br>WRIT PETITION No.11057 OF 2019 (GM – RES)<br>JUSTICE M. NAGAPRASANNA <br>DECIDED ON 30TH DAY OF NOVEMBER, 2022 </b></p><p><b>The petitioner, a Healthcare Global Enterprises Limited\r\n(hereinafter referred to as ‘the Company’ for short) is before this\r\nCourt calling in question order dated 27-02-2019 by which the\r\nMinistry of Chemicals and Fertilizers in the Department of\r\nPharmaceuticals imposes a cap on trade margin of 30% and directs\r\nmanufacturers to fix their retail price based on price at first point of\r\nsale of the product of non-scheduled formulations containing in all\r\nthose 42 drugs listed in the said order. </b></p><p><b>11. On a coalesce of the afore-quoted regulatory orders\r\nnotified by Government of India what would unmistakably emerge\r\nis that Government of India is empowered to promulgate a pricing\r\npolicy and regulate prices of certain drugs which are even of nonformulation as formulated drugs are already in the Schedule to the\r\nOrder. Non-formulated drug is what is sought to be controlled now.\r\nThe key feature of the policy as noted hereinabove is ‘essentiality’.\r\nTherefore, the drugs that are sought to be controlled are essential\r\ndrugs, essential for combating cancer. The reasons for\r\npromulgation of the said policy are found in the Notification itself.\r\nThe notification records that there were eight lakhs cancer deaths in\r\nIndia in 2018 alone and number of new cases are estimated to be\r\non the rise; 50% of cancer patients avail private sector facilities and\r\nout of pocket expenses in the health care including the cancer care\r\nis about 65%; one major factor that contributed to high drug prices\r\nin India were the unreasonably high trade margins. An expert\r\ncommittee of the Ministry of Health and Family Welfare was\r\nconstituted to examine the issue of manufacturers selling certain drugs to the consumers at about 900 per cent more than the\r\nregular price of a drug. The High Court of Punjab and Haryana in\r\nthe case of RANBAXY LABORATORY LIMITED V. STATE OF\r\nHARYANA observed that there was no legal provision in force to\r\nsave the consumer from naked fleecing of consumers by drug\r\nmanufacturers. All these factors were looked into and 43 anti\r\ncancer medicines were brought under price control. Therefore, it is\r\nnot a case where the price control policy that comes about is either\r\nunreasonable or arbitrary for this Court to entertain a challenge to\r\nthe said policy that too at the hands of a retailer and not the\r\nmanufacturer. Even otherwise it is such regulatory policy of keeping\r\nof price that is sought to be questioned before this court seeking a\r\njudicial review of the said policy. Whether this Court can by way of\r\njudicial review obliterate or even tinker with the policy is what\r\nneeds to be considered.</b></p><p><b>18. The control now made of high trade margin by way of\r\nTrade Margin Rationalisation Approach, is towards anti-cancer\r\ndrugs. Cancer is, in public domain, one of the leading causes of\r\nadult illness and death. As per World Health Organization estimate\r\n18 million cases globally and 1.5 million in India, are the fatalities\r\nas a result of Cancer. The number of cases is estimated to rise to\r\ntwice to what it is now, by next 15 years and the expenditure on\r\ncancer inpatient treatment is today the highest among noncommunicable diseases. Cancer patients in India incur heavy\r\nexpenditure and cancer drugs need to become somewhat affordable\r\nso that whenever a treatment is required, it can be treated at the\r\nearliest, to the rich and the poor alike. If such policy is not\r\npromulgated, the poor or the middle class which forms a majority of\r\nthe population of this country, can be seen to be succumbing to the\r\ndisease due to high prices that the manufacturers project resulting\r\nin its unaffordability. Therefore, the challenge to the Government order by a retailer whose motive inter alia is profit and the\r\nchallenge inter alia is loss of profit, cannot be countenanced.\r\n</b></p><p><b> 19. For the aforesaid reasons, finding no merit in the petition,\r\nit is accordingly dismissed.  <br></b></p><p> \r\n<br></p>', '733c8d80759ab95ef70deb0d558cfef1.jpg', '542e55ec3c31992febf342f84ab5ed68.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-03', 1, '', '', '2022-12-02 22:57:10', '2022-12-03 08:52:32'),
(2467, 'xDbapeyzt9Dx35Aq4Ywhvqcup', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A co-owner cannot seek temporary injunction against another co-owner on the ground of adverse possession unless there is a partition of the property by metes and bounds. Karnataka High Court.  ', '<p><b>ANIL BAJAJ vs&nbsp; MIRA MURLIDHAR BAJAJ<br>MISCELLANEOUS FIRST APPEAL NO. 1740 OF 2022 (CPC)<br>JUSTICE RAVI V HOSMANI<br>DECIDED ON&nbsp;29TH DAY OF OCTOBER, 2022 &nbsp;<br></b></p><p><b>Challenging impugned order dated 17.12.20221 passed on\r\nI.A.No.1 filed under Order XXXIX Rule 1 and 2 CPC by XIV Addl.\r\nCity Civil Judge &amp; concurrent charge of XXXVIII Addl. City Civil\r\nJudge, Bengaluru,(CCH-39) in O.S.No.8997/2019, this appeal is\r\nfiled.&nbsp;&nbsp;</b></p><p><b>The Trial Court further observed that injunction cannot be\r\ngranted against co-owner of property, which would be\r\nunsustainable since plaintiff acquired title over entire suit\r\nproperty, which by adverse possession. Under such\r\ncircumstances refusal to grant interim order only on ground&nbsp; that plaintiff had made out triable case, but not prima facie\r\ncase would be unsustainable.&nbsp;</b></p><p><b>&nbsp;Sri. S. Basavaraj, learned Senior\r\nCounsel appearing for defendant submitted that from plaint and\r\nwritten statement averments, it was an undisputed fact that\r\nboth plaintiff and defendants were in possession as co-owners\r\nof suit property. It was further submitted that khata in respect\r\nof suit schedule property stood in name of defendant as on\r\ndate of suit and property tax was being paid by her. It was also\r\nstated in counter affidavit that defendant and her children were\r\nintermittently staying in suit property and hence has been in\r\npossession. It was further stated that there was no specific\r\naverment regarding plaintiff\'s possession in entire plaint. There\r\nwas not even an assertion regarding cause of action. On\r\nreading of entire plaint, only cause of action for filing suit would\r\nbe one expressed in para no.14 of plaint, wherein it was\r\naverred that demand was made by defendant seeking for\r\npartition of suit property. However prayer in suit was not either\r\nfor partition or declaration, but only for permanent injunction.</b></p><p><b>14. A bare perusal of plaint averments which he averred\r\nthat defendant has lost her interest by way of adverse\r\npossession itself would also indicate that they were co-owners.\r\nTherefore observations of trial Court about same cannot be\r\nfaulted. Indeed, it would also require to be noted that though\r\nplaintiff has averred that he has acquired title by way of\r\nadverse possession over property, prayer sought in suit is not\r\nfor declaration of title by adverse possession but only for\r\npermanent injunction. It would also be relevant to note that in\r\nthe entire plaint plaintiff has not stated date of beginning of\r\nadverse possession and completion of 12 years prior to filing of\r\nsuit, which would essential for seeking such right. </b></p><p><b>16. Insofar as interference is concerned only assertion\r\nis one stated in paragraph no.14 that respondent is asking for\r\npartition of suit property. Admittedly both plaintiff and\r\ndefendant were having joint interest in suit property. It is not\r\ncase of plaintiff that there was partition. Until then both of\r\nthem are deemed to be in joint possession of suit property, law\r\nregarding possession of co-owners is well settled. </b></p><p><b>19. Such being case, when plaintiff has not sought relief\r\nof declaration of title by way of adverse possession or relief of\r\npartition by metes and bounds, whether suit in its present state\r\nwould be maintainable or not would be an serious issue. </b></p><p><b>21. Hon\'ble Supreme Court in Mohd. Mehtab Khan\r\nVs. Khushnuma Ibrahim Khan &amp; Others&nbsp;(2013) 9 SCC 221  has held that even\r\nif view taken is one of possible view and it would not call for\r\ninterference. Trial Court has observed that plaintiff\'s claim\r\nwould have to be established in a full fledged trial. Therefore, I\r\ndo not find any justification to interfere with the impugned\r\norder. In the result I pass following:</b></p><p><b>ORDER\r\nAppeal is dismissed&nbsp;<br></b></p><p><br></p>', '0951988440f0b75b5abdcf9e799dd7f8.jpg', '30cb3deb19cbd0a92de23c5a489c1674.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-03', 1, '', '', '2022-12-03 10:02:44', '2022-12-03 09:10:38'),
(2468, 'rdvZTZSpdUm2BDOrc2cZIRnpu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When due to pendency of the land acquisition proceedings, the possession could not be taken over, the landowners cannot contend that the land acquisition proceedings have lapsed under Section 24(2) of the Act, 2013. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Government of NCT of Delhi Vs Subhash Jain and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8937 of 2022 decided on 2 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order passed by the High Court of Delhi at New Delhi in Writ Petition\r\n(C) No. 2709 of 2015 by which the High Court has allowed the said writ\r\npetition and has declared that the land acquisition proceedings under the\r\nLand Acquisition Act, 1894 (hereinafter referred to as “Act, 1894”) with\r\nregard to the land in question is deemed to have lapsed under Section\r\n24(2) of the Right to Fair Compensation and Transparency in Land\r\nAcquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter\r\nreferred to as “Act, 2013”), the Government of NCT of Delhi and Anr.\r\nhave preferred the present appeal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. From the impugned judgment and order passed by the High Court,\r\nit appears that while declaring that the acquisition proceedings under the\r\nAct, 1894 is deemed to have lapsed under Section 24(2) of the Act,\r\n2013, the High Court has heavily relied upon the decision of this Court in\r\nthe case of Pune Municipal Corporation and Anr. Vs. Harakchand\r\nMisirimal Solanki and Ors., (2014) 3 SCC 183.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.1 However, the High Court has failed to notice and consider the\r\nspecific case on behalf of the appellants that at the relevant time, the\r\npossession could not be taken over due to the pending proceedings at\r\nthe instance of the landowners challenging the acquisition proceedings,\r\nwhich ended upto this Court. The original landowners failed in\r\nchallenging the acquisition proceedings upto this Court. Under the\r\ncircumstances, when due to pendency of the land acquisition\r\nproceedings, the possession could not be taken over, thereafter, it will\r\nnot be open for the landowners to contend that as the possession was\r\nnot taken over, the land acquisition proceedings be deemed to have\r\nlapsed under Section 24(2) of the Act, 2013.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. In view of the above and for the reasons stated above, the\r\nimpugned judgment and order passed by the High Court declaring that\r\nthe land acquisition proceedings with respect to the land in question has\r\nlapsed under Section 24(2) of the Act, 2013 is unsustainable and the\r\nsame deserves to be quashed and set aside and is accordingly quashed\r\nand set aside.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Present appeal is accordingly allowed. No costs.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pending application, if any, also stands disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7c291157b1b707b8101f2b326af34272.jpeg', 'deafd7344e66ec1c57c56e4d7a97718a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-06', 1, '', '', '2022-12-05 10:49:10', '2022-12-06 07:04:28'),
(2469, 'EnRKVnZjchriQls4iSBVBiGmp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Application for permission to sue as an indigent person can be rejected if the allegations in the plaint do not show any cause of action or if the suit is barred by res judicata. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Solomon Selvaraj and others Vs Indirani Bhagawan Singh and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8885 of 2022 decided on 2 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice M.M. Sundresh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. That the appellants herein - original plaintiffs instituted\r\nthe suit before the learned Trial Court for declaration of title\r\nand for recovery of possession. In the said suit the plaintiffs\r\nfiled an application being I.O.P. No.1 of 2015 permitting them to\r\nfile the suit as indigent persons. The said application was\r\nopposed by the defendants on the grounds inter alia that the\r\nsuit is barred by res judicata; there is no cause of action for\r\nfiling the suit. The claim of the plaintiffs that they are indigent\r\npersons was also contested. The learned Trial Court rejected\r\nthe said application filed by the appellants seeking leave to file\r\nthe suit as indigent persons. The order passed by the learned\r\nTrial Court rejecting the application to sue as indigent persons\r\nwas the subject matter of miscellaneous appeal before the High\r\nCourt.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. At the outset, it is required to be noted that in the present\r\ncase the appellants herein – the original plaintiffs while\r\ninstituting the suit submitted an application to permit them to\r\nsue as indigent persons under Order 33 rule 1 of the Code of\r\nCivil Procedure, 1908 (hereinafter referred to as the ‘CPC’). The\r\nsaid application came to be dismissed by the learned Trial\r\nCourt, confirmed by the High Court on the ground that the suit\r\nis vexatious, an abuse of process of law and the court and the\r\nsuit is barred by res judicata. Therefore, the short question\r\nwhich is posed for consideration before this Court is whether on\r\nthe aforesaid ground the application under Order 33 Rule 1\r\nCPC namely to sue as indigent persons could have been rejected\r\nby the learned Trial Court? The question which is posed for\r\nconsideration before this Court is even in a case where the\r\napplication to sue as indigent persons is rejected what order\r\ncan be passed and what will be the remedy available to the\r\nplaintiff/(s)?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6.4 Thus, from the scheme of Order 33 CPC, it emerges that\r\nthe application under Order 33 Rule 1 CPC seeking permission\r\nto sue as indigent person can be rejected on the grounds\r\nmentioned in Order 33 Rule 5 CPC. It includes that the\r\nallegations in the application would not show cause of action <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">…… or that the allegations made by the applicant in the\r\napplications show that the suit would be barred by law for the\r\ntime being in force (Order 33 Rule 5(d) & (f) CPC). Identical\r\nquestion came to be considered by this Court in the case of\r\nKamu Alias Kamala Ammal (supra). While considering Order\r\n33 Rule 5, CPC, it is observed and held that the application for\r\npermission to sue as an indigent person has to be rejected and\r\ncould not be allowed if the allegations in the plaint could not\r\nshow any cause of action.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6.5 Applying the law laid down by this Court in the aforesaid\r\ndecision and when having prima facie found that the plaint\r\ndoes not disclose any cause of action and the suit is barred by\r\nres judicata it cannot be said that the learned Trial Court\r\ncommitted any error in rejecting the application to sue as\r\nindigent persons.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6.6 However, at the same time taking into consideration Order\r\n33 Rule 15 and 15A CPC and when the application to sue as <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">indigent person is rejected and/or refused, the Court may, while\r\nrejecting an application, under Order 33 Rule 15A CPC grant\r\ntime to the applicant to pay the requisite Court fee within such\r\ntime as may be fixed by the Court or extended by it from time to\r\ntime and upon such payment and on payment of cost referred\r\nto in Rule 15 within that time, the suit shall be deemed to have\r\nbeen instituted on the date on which the application for\r\npermission to sue as an indigent person was presented, even\r\nconsidering Order 33 Rule 15 CPC on refusing to allow to sue\r\nas an indigent person which may be a bar to any subsequent\r\napplication of the like nature in respect of the same right to\r\nsue, the applicant shall be at liberty to institute a suit in the\r\nordinary manner in respect of such right, therefore, taking into\r\nconsideration Order 33 Rule 15A and Order 33 Rule 5 CPC,\r\ninstead of remanding matter to the learned Trial Court to pass\r\nan appropriate order granting the appellants – original\r\napplicants time to pay the requisite court fee and now when the\r\nappellants have agreed to pay the requisite court fees, we grant\r\nfurther four weeks’ time to the appellants – original applicants </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to pay the requisite court fees and on payment of such court\r\nfees the suit shall be deemed to have been instituted on the\r\ndate on which the application for permission to sue as an\r\nindigent person was presented. However, it is observed that any\r\nobservations made by the learned Trial Court and the High\r\nCourt that the suit is barred by res judicata and/or on no\r\ncause of action shall be treated confine to deciding the\r\napplication to sue as indigent person only. However, at the\r\nsame time it will be open for the defendants to file an\r\nappropriate application to reject the plaint under Order 7 Rule\r\n11 CPC and/or any other application to reject the plaint and as\r\nand when such application is/are filed, the same be considered\r\nin accordance with law and on its own merits without in any\r\nway being influenced by any of the observations made by the\r\nHigh Court while rejecting the application to sue as indigent\r\npersons.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Present appeal stands disposed of in terms of the above.\r\nHowever, in the facts and circumstances of the case there shall\r\nbe no order as to costs. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '203e487150dfc5ab2e6bfd5f90f556f9.jpeg', '7e883342f3910cc3a566123a67c98ab1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-06', 1, '', '', '2022-12-05 11:11:36', '2022-12-06 08:56:14'),
(2470, 'L139M8cBTfDzrF04gZlQccJdU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“There should be devotion in politics; and not politics in devotion”. Karnataka High Court restrains shifting of deity to old/dilapidated temple, in public interest. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Prakash and others Vs The Deputy Commissioner and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 14590 of 2020 decided on 24 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioners are before this Court seeking various prayers\r\nlike issuance of writ in the nature of mandamus directing the\r\nrespondents not to violate their fundamental rights; not to move\r\nthe idol; not to dislocate or dispossess or shift any property of\r\nKamsagara Beeralingeshwara Temple to any other place.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Brief facts that lead the petitioners to this Court in this\r\npetition, as borne out from the pleadings, are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">The petitioners claim to be the residents of Doddathekalavatti\r\nVillage, Hosadurga Taluk, Chitradurga District and belong to Hori\r\nKuruba community. They have knocked the doors of this Court in\r\nthe subject petition alleging that in the year 2020 pooja materials\r\nand properties of the newly constructed Kamsagara\r\nBeeralingeshwara and Hinde Mallikarjunaswamy Temple including\r\nthe idol have been attempted to be shifted to old Kamsagara\r\nBeeralingeshwara and Hinde Mallikarjunaswamy Temple. It is\r\ncontended that Kamsagara Beeralingeshwara Temple (‘Temple’ for\r\nshort) situated at Doddathekalavatti village was a private temple\r\nexisting for over 100 years and the residents of the village and\r\nnearby villages majority of whom belonged Hori Kuruba community\r\nwere visiting the temple and visit of the temple by the community\r\npeople was frequent. The temple became popular in view of\r\nmassive gathering of people worshiping the deity. It is contended\r\nthat between 1970 and 1982 the people of the community drew up\r\nvarious kinds of poojas daily, monthly and annually in the temple.\r\nIn the year 1983 due to two warring factions in the village led to\r\ninstitution of civil suit in O.S.No.40 of 1982 and the suit comes to\r\nbe decreed that Kamsagara Beeralingeshwara and Hinde </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Mallikarjunaswamy Temple belongs to Hori Kuruba Community and\r\nis a private temple and the said community people were entitled to\r\nperform poojas to which three villages surrounding the temple were\r\npermitted. The Temple grew on its own accord and between 1994\r\nand 2007 due to heavy rains, walls of the temple started collapsing\r\nand the temple itself went into a dilapidated condition. The water\r\nduring every rainy season used to seep inside the temple and the\r\nseepage of the water into the temple became uncontrollable which\r\nwas endangering the structure of the temple.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Later, it appears, that a dispute between the sub-sects\r\nand Kuruba community gets generated and pooja in the temple was\r\nbeing performed only by Hori Kuruba community. The photographs\r\nappended to the petition which are acknowledged by the\r\nGovernment demonstrate that the temple is in a dilapidated\r\ncondition due to grave weather conditions. The condition is the\r\nwalls became dilapidated and rain water began to seep. It is at\r\nthat point in time a foundation stone was laid for construction of a\r\nnew temple exclusively for Hori Kuruba community. For setting up\r\nof a new temple, at the time of inauguration, the deity that was in\r\nthe old temple is sought to have been shifted to the new temple,\r\nboth of which allegedly belonged to Hori Kuruba Community. Now\r\nrespondents 5 to 21 allege that the idol or the deity that was\r\nshifted to the new temple is not returned back to the Temple.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. The devotees of the old temple and the new temple are\r\nthe same, is a fact that cannot be brushed aside. The issue <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">whether, the deity was placed in the old temple or the new temple?\r\nThe photographs that are appended would demonstrate huge crowd\r\nor gathering at the time of festivals which definitely cannot be\r\naccommodated in the old temple. Politics apart, in public interest,\r\nthe safety of public that enter into those temples should be a\r\nparamount interest of the State. If the temple is in a dilapidated\r\ncondition and the deity is now in the new temple where the temple\r\ncan accommodate necessary gathering at any point in time, in the\r\nconsidered view of the Court, owing to public interest and public\r\nsafety, it should be permitted to continue.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. If the warring factions would seek to claim any right\r\nover the deity and it being placed in a particular temple, it is open\r\nfor them to agitate the issue before the competent civil Court. The\r\nissue earlier decided would not come in the way of institution of any\r\nsuit, as the earlier decision was not where the deity should be kept.\r\nThe issue that has now sprung is with regard to the place of the\r\ndeity. It is therefore for the respective parties to agitate before the\r\ncompetent civil Court about the place of the deity. Before\r\ninstituting any suit, it would be necessary for the people of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">community i.e., Hori Kuruba Community to sit together and decide\r\nabout the place of placing the deity, as the manner of worship will\r\nnot change from shifting the deity from one place to another.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>14. If the deity is to be worshipped people can worship the\r\ndeity at the new temple itself. Political consideration or any such\r\nagenda as alleged should not take away public interest or public\r\nsafety, in the deity being shifted from one place to the other.\r\nHowever, it is needless to observe that in the interest of the\r\ncommunity people as also the devotees who visit the temple, the\r\ndeity to be continued in the new temple rather than shifting to the\r\nold temple which is in a dilapidated condition thereby exposing the\r\nidol to all vagaries of nature.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. The State should ensure that public safety is kept at the\r\nforefront while taking any decision. If the pleadings and the\r\nsubmissions are noticed, they are completely shrouded with politics\r\nbeing played with regard to the place of worship. In the peculiar\r\nfacts as narrated hereinabove, it is politics that has led the\r\npetitioners to this Court. People who worship are not complaining,\r\nit is the people who play with the emotions of such worshippers are</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">at squabble. Therefore, this Court is constrained to observe <i>“there\r\nshould be devotion in politics; and not politics in devotion”.</i></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n (i) The Writ Petition is allowed in part. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2bbacd9395e2c7707280db4f8fa40393.jpeg', '7eb5b70f39a8e34869e2ced1343d28ad.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-06', 1, '', '', '2022-12-05 12:03:27', '2022-12-06 03:24:01'),
(2471, 'YQTbO4byTLefYA7LfEpnokQAE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Increasing litigation in public distribution system. “Stop indiscriminate allotment of fair price shops or discriminate distribution of cards”. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Manjunath B Vs The Principal Secretary Department of Revenue (Food) and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 19575 of 2022 decided on 30 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court calling in question order\r\ndated 20th September 2022 passed by the 3rd respondent cancelling\r\nthe license issued to the petitioner for a fair price shop under the\r\nKarnataka Essential Commodities Public Distribution System\r\n(Control) Order 2016 (‘the Order’ for short). </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Brief facts that lead the petitioner to this Court in the\r\nsubject petition, as borne out from the records, are as follows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner claims to be a physically disabled person to the\r\nextent of 75% and is entitled to the benefits under the Rights of\r\nPersons with Disabilities Act, 2016. Initially, the Karnataka State\r\nFood and Civil Supplies Corporation was granting licenses to run fair <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">price shops in favour of the applicants. The said duty was taken\r\nover by the Government. The Government started granting fair\r\nprice shop licenses. The 4th respondent/ Deputy Director of Food,\r\nCivil Supplies and Consumer Affairs issued a notification on\r\n10-01-2022 inviting applications from interested citizens to apply\r\nfor grant of fair price depot in the western range, Bangalore City.\r\nIn response to the said notification, the petitioner being physically\r\nchallenged applied seeking allotment of a fair price depot in his\r\nfavour along with other applicants. On scrutiny of the applications\r\nreceived, a fair price depot was allotted in favour of the petitioner\r\nto run at Shivanahalli under the physically challenged quota. Prior\r\nto the grant of said license, a report from the Food Inspector was\r\nsought and the Food Inspector had recommended approval of\r\nallotment of fair price depot in favour of the petitioner, under the\r\nphysically challenged quota. Accordingly, the competent authority\r\nallotted fair price depot in favour of the petitioner under clause\r\n6(1)(b) of the Order.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. The petitioner then claims to have complied with all the\r\nconditions specified by the 4th respondent and made investment by </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">taking premises on rent by entering into an agreement to run fair\r\nprice depot. The 5th respondent herein M/s Rajajinagar Sastha’s\r\nWomen’s Association (‘the Association’ for short) challenges the\r\nsaid grant of allotment in favour of the petitioner before this Court\r\nin Writ Petition No.3233 of 2022. This Court by its order dated 7th\r\nMarch 2022 permitted the 5th respondent to withdraw the petition\r\nand file an appeal before the Appellate Authority. Then the 5th\r\nrespondent files appeal before the Appellate Authority. The\r\nAppellate Authority, after hearing the parties, sets aside the license\r\ngranted to the petitioner. The setting aside of license at the\r\ninstance of the 5th respondent is what drives the petitioner to this\r\nCourt in the subject petition.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The distribution of cards in terms of allotment of fair price\r\nshops is dealt with under the Order. Clause 2(g) of the Order\r\ndefines a ‘Fair Price Depot’ to mean, a depot which is authorized to\r\ndistribute essential commodities under the public distribution\r\nsystem to ration cardholders. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Clause 5 deals with conditions for eligibility for grant of\r\nauthorization. Sub-clause (b) of Clause 5 mandates that the\r\napplicant should be in possession of suitable business premises,\r\nwith sufficient space to store two months stock of essential\r\ncommodities and should have sufficient funds in the Bank to\r\npurchase food stock. Clause 6 deals with order of priority for grant\r\nof authorization. The priority directs that Stree Shakthi Groups\r\nlocated in the same village or locality where the fair price shop is to\r\nbe allotted which is recognized by the Women and Child\r\nDevelopment Department should be given priority. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>A cap on the number of ration cards for a fair price depot is\r\ndepicted to be not less than 500 for a fair price depot in a rural area\r\nand not less than 800 for a fair price depot in an urban area.\r\nRelaxation of the limit up to 100 cards in a rural area is permitted.\r\nTherefore, the cap in urban area is 800 cards. The petitioner was\r\nallotted a fair price depot in Shivanahalli where the 5th respondent <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is also having a license for a fair price shop, if not next to each\r\nother but in the same vicinity. The petitioner is allotted cards by\r\nremoving 106 cards from the cards of the 5th respondent and\r\nallotting them to the petitioner so that it would come within the\r\nminimum possible under the Order. This action of removal of some\r\ncards from the 5th respondent and allotting the same to the\r\npetitioner is called in question before this Court and this Court\r\npermits the 5th respondent to approach the Appellate Authority. It\r\nis then the 5th respondent files an appeal before the Appellate\r\nAuthority</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. It is germane to notice that the writ Court is flooded with\r\ncases concerning public distribution system, particularly, allotment\r\nof fair price shop or allotment of cards to any particular fair price\r\nshop. Indiscriminate allotment of fair price shops or discriminate\r\ndistribution of cards has led to this problem. Therefore, the\r\nauthorities while allotting the cards should by and large seek to\r\nmaintain the terms in Clause 11 of the Order which directs that\r\nthere should be 800 cards to a fair price shop in the urban area and\r\n500 cards in the rural area. The writ Courts cannot be expected to\r\njoin the race of rival claimants of taking away of cards or giving of\r\ncards. The Government, its Officers, should exercise caution and\r\nencourage restraint in generating litigation by its action qua\r\ndistribution of cards. It is also germane to notice that the\r\nCommissioner of Food and Civil Supplies has communicated to\r\nDeputy Directors to exercise caution while allotting fair price shops.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. The learned Additional Government Advocate would\r\nsubmit that the policy today is one nation – one ration card. Any\r\ncard holder can pick up his ration from any fair price depot. He\r\nneed not depend upon the fair price depot that is allotted to him by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">way of issuance of card is his submissions. If that is the policy, it is\r\nfor the State to take the policy forward and redress all these\r\nproblems of taking away ration cards from one, and giving it to\r\nanother, at the whim and fancy of the officers - the 4th respondent\r\n– Deputy Director or any other Officer incharge of such distribution.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> (i) Writ Petition is allowed in part. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '29af6d5a950d60dd0880fbe4f9342f4c.jpeg', '1a2daf6e053fb7c89fca62052759a0c4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-06', 1, '', '', '2022-12-05 12:31:23', '2022-12-06 10:42:07');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2472, 'sPlumr2xhO17lVeqYuvMSAbE8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'In a suit for specific performance, the proposed buyer can be impleaded to avoid multiplicity of the proceedigs. High Court of Chhattisgarh ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shyama Sevi Vs Bharat Ram and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WP227 19 of 2022 decided on 22 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Deepak Kumar Tiwari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. By way of this writ petition, the petitioner/plaintiff has challenged the\r\norder dated 27.11.2021 passed by the 5th Civil Judge Class-II, Ambikapur,\r\nDistrict Surguja in Civil Suit No.49A/2019, whereby the application filed\r\nby respondent No.3 herein under Order 1 Rule 10 of the Code of Civil\r\nProcedure for impleadment as defendant has been allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Brief facts of the case are that the petitioner / plaintiff filed a suit on\r\n11.3.2019 on the following reliefs:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>It has been further pleaded that defendant No.1/respondent No.1 was\r\nowner of the land bearing Khasra Nos.127/6 & 128/12 total 0.036 hectare\r\nand the land bearing Khasra No.127/1 has been acquired for AmbikapurDarima Road. Defendant No.1 has already sold the entire land and some\r\nof his land is already vested in Ambikapur-Darima Road. So, no land was\r\nleft over with defendant No.1 with respect of Khasra No.127/1. However,\r\nrespondent No.1 / defendant No.1 entered into agreement to sale of the\r\nland bearing Khasra No.127/1 area 0.20 hectare with respondent No.3\r\non 10.7.2018. In such a suit, respondent No.3 has filed an application\r\nunder Order 1 Rule 10 of the Code of Civil Procedure for impleadment as\r\nparty defendant No.3, which was allowed by the impugned order. Such\r\nan order is illegal, erroneous and contrary to the settled principles of law. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. In Sumtibai (supra), the Supreme Court has categorically distinguished\r\nthe case of Kasturi v. Iyyamperumal6\r\n and held that it cannot be laid\r\ndown as an absolute proposition that whenever a suit for specific\r\nperformance is filed by A against B, a third party C can never be\r\nimpleadeed in that suit. It was further observed that if C can show a fair\r\nsemblance of title or interest he can certainly file an application for\r\nimpleadment. To take a contrary view would lead to multiplicity of\r\nproceedings because then C will have to wait until a decree is passed\r\nagainst B, and then file a suit for cancellation of the decree on the ground <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that A had no title in the property in dispute. Clearly, such a view cannot\r\nbe countenanced.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. In Surya Dev Rai v. Ram Chander Rai  , it has been\r\ncategorically held by the Supreme Court that supervisory jurisdiction\r\nunder Article 227 of the Constitution is exercised for keeping the\r\nsubordinate courts within the bounds of their jurisdiction. When a\r\nsubordinate court has assumed a jurisdiction which it does not have or\r\nhas failed to exercise a jurisdiction which it does have or the jurisdiction\r\nthough available is being exercised by the court in a manner not\r\npermitted by law and failure of justice or grave injustice has occasioned\r\nthereby, the High Court may step in to exercise its supervisory\r\njurisdiction. It has also been held that supervisory jurisdiction or certiorari\r\njurisdiction is not available to correct mere errors of fact or of law unless\r\nthe following requirements are satisfied: (i) the error is manifest and\r\napparent on the face of the proceedings such as when it is based on\r\nclear ignorance or utter disregard of the provisions of law, and (ii) a grave\r\ninjustice or gross failure of justice has occasioned thereby. The power to\r\nissue a writ of certiorari and the supervisory jurisdiction are to be\r\nexercised sparingly and only in appropriate cases where the judicial\r\nconscience of the High Court dictates it to act lest a gross failure of\r\njustice or grave injustice should occasion.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Considering the relief sought for by respondent No.3, learned trial\r\nCourt has exercised its jurisdiction and allowed the application for\r\nimpleadment to the proposed buyer as defendant No.3. I do not find any\r\nillegality or infirmity in the impugned order warranting interference by this <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court under Article 227 of the Constitution of India.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. Accordingly, the writ petition filed under Article 227 of the\r\nConstitution of India deserves to be and is hereby dismissed. No cost(s).</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6e8f1af928a13104cbd2653172f0ccc4.jpeg', '777c09f62853e6edc8aeee0f0d68e134.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-06', 1, '', '', '2022-12-05 13:35:00', '2022-12-06 13:23:51'),
(2473, 'dEhCnFbPHgfj89LkuKbiO9GSI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Central Excise Tariff Act, 1985. Price charged from independent parties for the sale of excisable goods can be used as a benchmark for determination of excise duty on related transactions when such a price is readily available. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Commissioner of Central Excise and Service Tax Vs Merino Panel Product Ltd.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6891 of 2018 decided on 5 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Surya Kant and Justice J.B. Pardiwala.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The present Civil Appeal originates from the impugned order\r\ndated 30.11.2017 passed by the Customs, Excise and Service Tax\r\nAppellate Tribunal, Chandigarh (“CESTAT”). The CESTAT set aside the\r\nshow cause notice issued by the Appellant-Revenue to the AssesseeRespondent, on the ground that it had invoked an incorrect method\r\nof valuing related party transactions.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The Assessee is involved in the manufacture of decorative\r\nlaminates and other like materials, which fall under Chapter 48 of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Central Excise Tariff Act, 1985. As excisable goods, the value at\r\nwhich the Respondent was selling these goods would be the\r\ndeterminant for the amount of tax recoverable by the Appellant.\r\nFollowing an audit conducted on the Assessee’s operations for FY\r\n2009-10 and 2010-11, discrepancies were unearthed in terms of the\r\nprices at which these goods were being sold. The goods were being\r\noffered not only to independent parties unconnected with the\r\nRespondent, but also to two ‘related parties’ called “Merino\r\nIndustries Ltd.” (“MIL”) and “Merino Services Ltd.” (“MSL”), as\r\ndefined under Section 4(3)(b)(i) of the Central Excise Act, 19441\r\n(“CEA”) read with Section 2(g) of the Monopolies and Restrictive\r\nTrade Practices Act, 1969.2\r\n It was ascertained that Respondent was a\r\nsubsidiary of MIL with 74.65% of its shareholding vested in the latter.\r\nWith regard to MSL, the Assessee was found to have significant\r\ninfluence over its operations and the two companies shared\r\nDirectors/Key Managerial Personnel.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. On first blush, it appears that the arguments from the\r\nAppellant-Revenue and Respondent-Assessee are on two separate\r\nfootings. While the former assails the specific reasoning given by the\r\nCESTAT for setting aside the show cause notice in terms of\r\ninvocation of an incorrect part of the CEVR, the latter is more\r\nconcerned with the binding nature of the CBEC Circular issued by\r\nthe Revenue itself. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. It is clear that the latter question goes to the heart of the\r\nmatter, rather than the issue of whether the show cause notice\r\nbecomes legally untenable for failure to expressly mention that the\r\nvaluation of the goods is to be done under Rule 11 read with Rule 9\r\nof the CEVR. On the legal proposition advanced by learned ASG, we\r\nreadily affirm that citation of an incorrect source of power does not\r\nvitiate the exercise of the power itself provided the power vests in\r\nthe authority to begin with.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. Thus, the starting point of our analysis on this question is that\r\nthe CBEC Circular of 01.07.2002 is binding on the Revenue. If the\r\nshow cause notice issued by the Revenue is found to be contrary to\r\nthe Circular, it would prima facie result in abrogation of the\r\nuniformity and consistency which is strongly emphasized upon in\r\nRanadey Micronutrients (Supra). It goes without saying that the\r\nRevenue’s stance against its own circular can potentially lead to a\r\nchaotic situation where, with one hand, the Revenue would lay down\r\ninstructions on how to interpret the relevant statutes and rules, and\r\nwith the other hand, it would promptly disobey those very directions.\r\nMaintaining predictability in taxation law is of utmost importance\r\nand, for this reason, the Court should not accept an argument by the\r\nRevenue that waters down its own Circular as this would fall\r\nsquarely within the contours of the prohibition outlined in Paper\r\nProducts (Supra).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. Based on our reliance on Ratan Melting (Supra) and\r\nAhmedabad Urban Development (Supra) we have no reason to\r\ndoubt that if a circular has been issued contrary to statutory\r\nprovisions or in defiance of the interpretation of such provisions by a\r\njudicial forum, the circular in question would be stripped of any\r\nbinding force. The larger question that we must answer is whether\r\nthe CBEC Circular of 01.07.2002 is, at all, contrary to either the CEA\r\nor the CEVR. A close reading of Section 4 of the CEA and Rules 4, 9\r\nand 11 of the CEVR are necessary for this exercise. Rule 4, as we\r\nhave noted already, is inapplicable in this case as it addresses\r\nsituations where goods are not sold at the time of removal from the\r\nfactory of the manufacturer. In this case, the Respondent-Assessee <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">admittedly sold the goods upon removal itself, hence Rule 4 is of no\r\nrelevance.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>31. In the present case, the factors mentioned in Xerographic\r\nLtd. (Supra) have been clearly fulfilled as MIL and MSL were\r\ncharged below the price that was imposed on independent buyers\r\ndue to extra-commercial considerations. Hence, we can determine <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the price of goods sold to related parties by perusing the price at\r\nwhich the sales were made to independent parties. In SACI Allied\r\nProducts Ltd., U.P. v. Commissioner of Central Excise,\r\nMeerut\r\n19\r\nthe facts were very similar to the case before us. The\r\nsales by the Assessee were made to both ‘independent’ and\r\n‘related’ parties and the question that arose was regarding fixing the\r\nassessable value of the goods that were conveyed to the latter\r\nentities.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32. This Court, thus, ruled that the amount charged from\r\nindependent buyers can form the benchmark to calculate the\r\nappropriate assessable value of the goods sold to the related\r\nparties. This approach is of great assistance keeping in view the\r\nsimilarity between the facts and issues that arose in SACI Allied\r\nProducts (Supra) and in the dispute before us.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>33. The conclusion we reach from this is that the principles under\r\nSection 4(1) of the CEA are geared toward determination of the\r\n‘value’ of goods. Under Section 4(1)(a), the value of goods for the\r\npurposes of excise duty, is deemed to be the ‘normal price’ of the\r\ngoods that are ‘ordinarily sold’ in the course of business, and where\r\nthe price is the ‘sole consideration’ for the transaction. It is only <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">when this cannot be gleaned from the set of transactions available\r\non record that we resort to Section 4(1)(b).</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. The presumption under Section 4(1)(a) is that the sale from an\r\nAssessee to an independent party is the proper valuation to be used\r\nfor determining excise duty. Conversely, a rebuttable presumption\r\ncan be drawn regarding related party transactions and the value at\r\nwhich goods are sold in such situations. Rule 9 would be sufficient to\r\nresolve this issue when sales are made only to related entities, but\r\nwhere both independent and related parties are involved, we must\r\nrefer to other means. In this context, Rule 11 obliges the Revenue to\r\nuse “reasonable means” consistent with the principles under Section\r\n4(1) of the CEA to arrive at the appropriate value. We observe that\r\nthe show cause notice and the order of the Commissioner proceed\r\nalong the basis that Section 4(1)(b) is applicable as the Assessee\r\nand MIL and MSL are related parties. Section 4(1)(a) was deemed to\r\nbe inapplicable as it addresses situations where the parties are not\r\nrelated.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>36. The sum and substance of our analysis is that the assessable\r\nvalue for the related party sales can be established by referring to\r\nthe normal price under Section 4(1)(a) of the CEA, which is readily\r\navailable in the present case. This is, in our opinion, the true\r\nmeaning and intention underlying the Circular of 01.07.2002. The\r\nreference to Rule 11 in Point No. 12 of the Circular simply mandates\r\nthe usage of “reasonable means” keeping in mind Section 4(1)(a) of\r\nthe CEA and Rule 9 of the CEVR. This is merely a method by which\r\nthe Revenue is required to apply its mind to a case of partial sales to\r\nboth independent and related parties. The conclusion reached <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">through this process may very well be in consonance with our\r\nanalysis.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>37. Regardless of the value the Revenue finally settles upon, we do\r\nnot find the Circular itself to be contrary to any statutory provisions.\r\nTo do so would essentially render Point No. 12 ineffective and such\r\nan outcome should, ideally, be avoided as far as possible. In fact,\r\nthe Commissioner’s order proceeds to determine the value of the\r\nsales made by the Respondent-Assessee to its sister concerns on the\r\nbasis of the value of its sales to independent parties. In our\r\nconsidered view, this is entirely consistent with the actual intent of\r\nthe Circular dated 01.07.2002, which we have already held is not in\r\ncontravention with either the CEA or the CEVR.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>38. The only remaining facet of the case is the extended period of\r\nlimitation invoked against the Respondent-Assessee under the CEA.\r\nThe justification of extending the period of limitation depends upon\r\nwhether the Respondent-Assessee has suppressed facts and failed\r\nto provide accurate information regarding its sales to the Revenue.\r\nTo this extent, there is a finding of fact against the Assessee. At the\r\nsame time, we are of the considered view that since the Revenue\r\nitself appeared to be unclear on the correct method of valuation of\r\nthe goods, it is not appropriate to saddle the Respondent with\r\nadditional liability, namely, other than the excise duty. Hence,\r\nthough we confirm the demand made by the Appellant, we do not<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>approve the levy of interest and penalties upon the Respondent, and\r\ndirect that these amounts be reduced from the total recoverable\r\namount from the Assessee.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>39. Having held so, we can now bring this matter to a close. For\r\nthe purposes of current dispute, it suffices for us to clarify that Point\r\nNo. 12 in the Circular of 01.07.2002 is not contrary to the intent of\r\nthe CEA and CEVR and the object behind it is to merely use\r\n“reasonable means” as outlined under Rule 11 of the CEVR, in\r\nconformity with Section 4(1)(a) of the CEA and Rule 9 of the CEVR,\r\nso as to reach the assessable value of goods for determination of\r\nexcise duty.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>40. When the normal price that is ordinarily charged in dealings\r\nwhere the price itself is the sole consideration of the transaction is\r\navailable, as it is here, that price can be transposed onto the related\r\nparty purchases as well, to arrive at the assessable value. Hence,\r\nthe order of the Commissioner regarding the value of the goods sold\r\nto the Respondent’s sister concerns is in consonance with this\r\nCourt’s earlier judgments and the Circular dated 01.07.2002. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>41. We allow the Civil Appeal in the abovementioned terms.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>42. Pending applications, if any, are disposed of accordingly</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4b166598777d43e68a479f4b5926ba79.jpeg', '8ab03b5b67310a36cb4c915f7a2b02b7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-07', 1, '', '', '2022-12-06 12:33:37', '2022-12-07 10:42:44'),
(2474, 'MK17PvmZb4oZvYuNTkBdZlZJD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Principal employer paying salary and PF contribution of the contractor’s employees does not make them employees of the principal employer. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kirloskar Brothers Limited Vs Ramcharan and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8446-8447 of 2022 decided on 5 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice Hima Kohli.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order dated 09.03.2018, passed by the learned Single Judge of the\r\nHigh Court of Madhya Pradesh at Indore in W.P. (S) No. 1083 of 2004\r\nand the impugned judgment and order dated 12.11.2018 passed by the\r\nDivision Bench of the High Court in W.A. (S) No. 813 of 2018, by which\r\nthe High Court has dismissed the said appeal(s) preferred by the\r\nappellant herein – employer confirming the judgment and order passed\r\nby the Industrial Tribunal ordering reinstatement and directing that the\r\nconcerned employees / workmen were the employees of the appellant – <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">principal employer, the principal employer – Kirloskar Brothers Limited\r\nhas preferred the present appeals.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The case on behalf of the appellant – principal employer in a\r\nnutshell is as under:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n2.1 That respondent Nos. 1 to 6 herein were contractual labourers of\r\nthe respondent No. 7, who was a contractor engaged by the appellant in\r\nterms of contract dated 22.04.1995, which was renewed from time to\r\ntime, including on 01.08.1995. Upon entering into the contract,\r\nnecessary compliances under Contract Labour (Regulation and\r\nAbolition) Act, 1970 (hereinafter referred to as “CLRA Act”) was\r\ncompleted by the appellant and the respondent No. 7 - contractor. The\r\nlabour contract came to an end on 07.10.1996. Therefore, the services\r\nof the respondents were dispensed with by the contractor. Accordingly,\r\nthe appellant filed a return under CLRA Act on 25.01.1997, which shows\r\nthat the contract with the respondent No. 7 had come to an end. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Having heard learned senior counsel appearing on behalf of the\r\nappellant and the material on record, it appears that the contesting\r\nrespondents herein were the contractual labourers of the respondent\r\nNo. 7 – contractor, who was a contractor engaged by the appellant in\r\nterms of the contract dated 22.04.1995, which was renewed from time to\r\ntime. It is an admitted position in the present case that no notification\r\nunder Section 10 of the CLRA Act has been issued by the State\r\nGovernment / appropriate Government, prohibiting the contract labour. It\r\nalso appears that upon entering into the contract, necessary compliance\r\nunder the CLRA Act was also completed by the appellant and the\r\nrespondent No. 7 – contractor. On the labour contract coming to an end,\r\nthe services of the contesting respondents were dispensed with by the\r\ncontractor.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4.5 Thus, as observed and held by this Court, neither Section 10 of the\r\nCLRA Act nor any other provision in the Act, expressly or by necessary\r\nimplication, provides for automatic absorption of contract labour on\r\nissuing a notification by the appropriate Government under sub-section\r\n(1) of Section 10, prohibiting employment of contract labour, in any\r\nprocess, operation or any other work in any establishment and\r\nconsequently, the principal employer cannot be required to order\r\nabsorption of the contract labour working in the establishment\r\nconcerned. It has further been observed and held by this Court in the\r\naforesaid decision that on issuance of prohibition notification under\r\nSection 10(1) of the CLRA Act, prohibiting employment of contract labour\r\nor otherwise, in case of an industrial dispute brought before it by any\r\ncontract labour in regard to conditions of service, the industrial\r\nadjudicator will have to consider the question whether the contractor has <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">been interposed either on the ground of having undertaken to produce\r\nany given result for the establishment or for supply of contract labour for\r\nwork of the establishment under a genuine contract or is a mere\r\nruse/camouflage to evade compliance with various beneficial legislations\r\nso as to deprive the workers of the benefits thereunder.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4.6 In the present case, neither any notification under Section 10(1) of\r\nthe CLRA Act has been issued prohibiting the contract labour, nor there\r\nare allegations and/or even findings that the contract is sham and bogus\r\nand/or camouflage.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4.7 In the case of International Airport Authority of India Vs.\r\nInternational Air Cargo Workers’ Union and Anr. (supra), after\r\nconsidering the decision of this Court in the case of Steel Authority of\r\nIndia Ltd. and Ors. Vs. National Union Waterfront Workers and Ors.\r\n(supra), it has been observed and held by this Court that where there is\r\nno abolition of contract labour under Section 10 of the CLRA Act, but the\r\ncontract labour contends that the contract between the principal\r\nemployer and the contractor is sham and nominal, the remedy is purely\r\nunder the ID Act. It is further observed that the industrial adjudicator can\r\ngrant the relief sought if it finds that the contract between the principal\r\nemployer and the contractor is sham, nominal and merely a camouflage\r\nto deny employment benefits to the employee and that there is in fact a\r\ndirect employment, by applying tests like: who pays the salary; who has <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the power to remove/dismiss from service or initiate disciplinary action;\r\nwho can tell the employee the way in which the work should be done, in\r\nshort, who has direct control over the employee. It is further observed\r\nthat where there is no notification under Section 10 of the CLRA Act and\r\nwhere it is not proved in the industrial adjudication that the contract was\r\na sham/nominal and camouflage, then the question of directing the\r\nprincipal employer to absorb or regularise the services of the contract\r\nlabour does not arise.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4.8 Applying the law laid down by this Court in the aforesaid two\r\ndecisions to the facts of the case on hand and in the absence of any\r\nnotification under Section 10 of the CLRA Act and in the absence of any\r\nallegations and/or findings that the contract was sham and camouflage,\r\nboth the Industrial Tribunal as well as the High Court have committed a\r\nserious error in reinstating the contesting respondents and directing the\r\nappellant – principal employer to absorb them as their employees. The\r\nparties shall be governed by the CLRA Act and relief, if any, could have\r\nbeen granted under the provisions of the CLRA Act and not under the\r\nMPIR Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. In view of the above and for the reasons stated above, the present\r\nappeals are allowed. The impugned judgment(s) and order(s) passed by\r\nthe High Court in W.P.(S) No. 1083 of 2004 and W.A. No. 813 of 2018 as\r\nwell as the judgment and order passed by the Industrial Tribunal are\r\nhereby quashed and set aside. The judgment and award passed by the\r\nLabour Court is hereby restored. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Present appeals are accordingly allowed. However, in the facts\r\nand circumstances of the case, there shall be no order as to costs.</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fbd014e184293133d58bfb55265adfa1.jpeg', 'afb03f34bc8b021602e483c0b27f3635.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-07', 1, '', '', '2022-12-06 13:03:17', '2022-12-07 08:43:20'),
(2475, 'n55ADdWCchtBJUzXbG7CSh9YI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mere denial of marriage with complainant is not a ground to quash the proceedings for the offences under section 498-A of the Indian Penal Code. Orissa High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jaga Sarabu Vs State of Orissa and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRLMC 1327 of 2015 decided on 29 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice G. Satapathy.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Facts as projected in this case in precise are one\r\nAruna Sarabu of village Pilka lodged an FIR on 26.11.2013\r\nbefore IIC Nabarangpur alleging therein that she had\r\nmarried to the Petitioner Jaga Sarabu of village Makia\r\naround three months ago and he kept her in his village\r\nMakia for three months. During her such stay for eighty\r\ndays period, she was subjected to torture physically and\r\nmentally as well as she was not provided with food by her\r\nhusband (Petitioner) and mother-in-law who also\r\nassaulted her. On 19.11.2013, her husband (Petitioner)\r\nwent to police to lodge a false case against her and her\r\nhusband (Petitioner) was asking to bring Rs.50,000/- from\r\nher father, otherwise he would kill her. The above fact was\r\nwithin the knowledge of villagers Makia and she had come\r\nto her mother by concealing herself to inform about these\r\nfacts.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. After having considered the rival submissions\r\nof the parties, the moot question crops up for\r\nconsideration in this CRLMC is whether the impugned\r\norder is bad in the eye of law for taking cognizance of\r\noffence under section 498-A of the IPC on account of\r\nfinding of learned Judge, Family Court, Nabarangpur in a\r\nproceeding under section 125 of Cr.P.C concluding that\r\nthe informant (O.P.No.2) is not the wife of Petitioner\r\nherein and thereby, the criminal trial arising out of such </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">impugned order pursuant to the F.I.R. at the instance of\r\nthe informant is otherwise then an abuse of process of the\r\nCourt and the same needs to be set aside/quashed to\r\nsecure the ends of justice. Adverting to the contention of\r\nthe Petitioner and examining the same on the principle of\r\nwell settled law, it appears that the Petitioner has relied\r\nupon the decision in Unnikrishnan (supra), but the\r\nsame having rendered on appreciation of evidence on\r\nrecord by the Appellate Court is not applicable to the\r\npresent case at hand since evidence is yet to be recorded\r\nin this case and the facts under which the present criminal\r\ncase runs is on the claim of the informant who claims\r\nherself to be the wife of the Petitioner through a marriage\r\nin the F.I.R. which facts can be considered independently\r\nin the course of trial. More so, in the relied on case, on the\r\nbasis of admitted statement of the deceased wife\r\nrevealing some acts of cruelty said to have undergone\r\nduring her live in relationship with the accused, the High\r\nCourt of Kerala considering the same to be a ground has\r\nobserved the accused to be entitled for acquittal for\r\noffence under section 498-A of IPC by allowing the appeal. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The case at hand is at the stage of taking cognizance of\r\noffence and issuance of process to the accused, but trial is\r\nyet to be conducted. However, on conspectus of FIR and\r\nstatement of witnesses would go to disclose about\r\nmarriage between the Petitioner and O.P. No.2 which need\r\nto be established during the trial and since there appears\r\nsome materials for taking cognizance of offence under\r\nsection 498-A of IPC, it would not be proper to come to a\r\nconclusion that the O.P No. 2 is not the wife of the\r\nPetitioner merely on the basis of finding of the Family\r\nCourt which is also rendered in a proceeding under section\r\n125 of Cr.P.C. which is by nature a proceeding for grant of\r\nmaintenance to wife, children and parents, but strict proof\r\nof marriage between the parties in a proceeding under\r\nsection 125 of Cr.P.C. normally should not be insisted\r\nupon as a condition precedent for grant of maintenance to\r\nthe wife.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. The plea of no marriage was canvassed for the\r\nPetitioner in the course of hearing of this CRLMC, but in a\r\nproceeding under section 482 of Cr.P.C., this Court is not\r\nsitting over a case in exercise of original jurisdiction to\r\ndecide the status of the parties by way of declaration\r\nwhich can be done by a Civil Court in exercise of power\r\nunder section 34 of the Specific Relief Act, 1963 after\r\nundertaking a full-fledged trial. It is no doubt advanced\r\nfor the Petitioner that a criminal proceeding under section\r\n498-A of the IPC is not maintainable against the Petitioner\r\nfor want of valid marriage, but after going through the\r\nuncontroverted allegations appearing in the FIR and\r\nstatement of witnesses under section 161 Cr.P.C., this\r\nCourt does not find any substance to conclude that a\r\nproceeding under section 498-A of IPC is not maintainable\r\nagainst the petitioner. Law is well settled that a criminal\r\nproceeding can be quashed where the basic ingredients of\r\nthe offences are not constituted/disclosed from a bare\r\nreading of the uncontroverted allegations appearing FIR <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and other materials so collected by the Investigating\r\nAgency. It is also extremely unfair and harsh to a woman\r\nwho claims herself to be wife of a person by entering into\r\na marital relationship and later on become a victim of\r\ndesertion by the said person taking plea of absence of a\r\nvalid marriage. The obvious objective of enacting offence\r\nunder section 498-A of IPC is to secure the prevention of\r\nharassment to a woman from cruelty meted out to her by\r\nhusband or his relatives. The aforesaid being the sacred\r\nobject of offence under section 498-A of IPC, whether a\r\nperson who enters into a marital relationship be allowed\r\nto take the refuge behind a smokescreen to take the plea\r\nthat since there was no valid marriage, the proceeding\r\nunder section 498-A of IPC against him is not\r\nmaintainable, but such plea having deleterious effect on\r\nthe morality of the women entering into a kind of\r\nrelationship of marriage with that person, it would not be\r\nproper for a Court to undertake hair splitting scrutiny of\r\nmaterials on record in a proceeding under section 482 of\r\nCr.P.C. to conclude that the proceeding under section\r\n498-A of IPC is not maintainable for want of valid </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">marriage which would not only encourage harassment of\r\nwomen but also demoralizes them.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. In view of the analysis of facts stated above\r\nand discussions of law laid down by the Apex Court in\r\nReema Aggrawal (supra) and A. Subash Babu\r\n(supra) and taking into consideration the uncontroverted\r\nallegation appearing in the FIR and statement of witnesses\r\ntogether with other documents collected in the course of\r\ninvestigation, this Court does not find any substance on\r\nthe submissions advanced for the Petitioner which merits\r\nconsideration for the proceeding under section 498-A of\r\nIPC to be not maintainable against the Petitioner, rather\r\nthere appears prima facie materials for proceeding against\r\nthe Petitioner for offences alleged against him and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">thereby, the learned Court of S.D.J.M., Nabarangpur has\r\nnot committed any illegality in taking cognizance of\r\noffences by the impugned order which cannot be\r\ninterfered by this Court in exercise of power of inherent\r\njurisdiction as the same has been passed on proper legal\r\nscrutiny of materials on record. Hence, it is ordered.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. In the result, this CRLMC is dismissed on\r\ncontest but in the circumstance without any cost. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'dba683b0197c710b07ce8f570b8b4fc8.jpeg', '54e0b3631bcc764dd76d78bd8f4e7568.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-07', 1, '', '', '2022-12-06 14:00:25', '2022-12-07 06:53:46');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2476, 'ZWlkUQgxzZY5iXAcbHzeSR96T', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Prohibition of Charging Exorbitant Interest Act, 2004 . Police conducting raid without registering FIR at the first instance is illegal. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mirasab Gulab Multani Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 101587 of 2018 decided on 14 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>FIR is registered for the offence punishable under\r\nSections 3 and 4 of the Karnataka Prohibition of Charging\r\nExorbitant Interest Act, 2004 alleging that the petitioner for\r\npersonal gain was charging interest at the rate of 10% on the\r\nhand loan without obtaining any license. Taking exception to\r\nthe same, this petition is filed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">5. The informant after conducting the raid seized the\r\nbooks which allegedly discloses that the petitioner was charging\r\nexorbitant interest on the loan disbursed by him in favour of\r\nthe borrower. Section 5 of the Act, 2004 specifies that a\r\ndebtor may deposit the money due in respect of a loan received\r\nby him from any person together with interest at the rate fixed\r\nby the State Government under Section 28 of the Karnataka\r\nMoney Lenders Act, 1961 into the Court having jurisdiction,\r\nalong with a petition to record that the amount deposited is in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">full or part, satisfaction of the loan including the interest and\r\ntherefore the Court shall, on receipt of a petition and the Court\r\nafter receiving the petition and after holding an enquiry pass\r\nsuch an order as the case may be.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n\r\n6. In the instant case, the Police Sub-Inspector\r\nwithout registering the FIR at the first instance has conducted\r\nthe raid and as such the registration of FIR is one without\r\nauthority of law and consequently the charge sheet filed for the\r\naforesaid offence also stands vitiated.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>ORDER</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>i) Criminal petition is allowed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fce3e28135c16791ce96e58b6dbaffcb.jpeg', '897ddd82335f46d0f71d7768007406ba.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-07', 1, '', '', '2022-12-06 15:21:58', '2022-12-07 12:28:26'),
(2477, 'GigIj3zjFWAw4kCTgb5gextdf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'After collecting premium for one year, Insurance Company cannot disown its liability on the ground that the registration of the vehicle expired in the meanwhile. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Basavaraja Beerappa Kambali Vs The Cholamandalam MS General Insurance Company Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.F.A 9207 of 2013 decided on 2 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>This appeal is filed challenging the judgment and award\r\ndated 20.04.2013, passed in M.V.C.No.717/2011, on the file of\r\nthe I Additional Senior Civil Judge, MACT-V, Davanagere (‘the\r\nTribunal’ for short) praying to modify the judgment and award.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n2. The factual matrix of the case of the claimant before\r\nthe Tribunal is that in an accident he had sustained the injuries\r\non account of rash and negligent driving of the motor vehicle\r\ninsured with respondent No.1 and the Tribunal awarded\r\ncompensation of amount of Rs.2,88,000/- with interest at the\r\nrate of 7% per annum. Being aggrieved by the same, the\r\nclaimant is in appeal before this Court. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Having heard the respective learned counsel and also\r\non perusal of the material available on record, the points that\r\narise for the consideration of this Court are:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Whether the Tribunal has committed an error\r\nin not awarding just and reasonable\r\ncompensation as contended in the appeal?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) Whether the Tribunal has committed an error\r\nin fastening the liability on the insured instead\r\nof insurer as contended in the appeal?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(iii) What order? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Point No.(i):\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 9. It is the claim of the claimant that he met with an\r\naccident when he was proceeding towards his office and the\r\ndriver of the Tata Ace caused the accident and as a result, he\r\nhad sustained grievous injuries and he was shifted to C.G.\r\nHospital, Davanagere and thereafter to S.S. Hospital,\r\nDavanagere and also he took treatment at Kasturba Hospital,\r\nManipal as an inpatient. It is also his claim that he was earning <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rs.6,501/- per month by working in BSS Micro Finance Pv.t Ltd.,\r\nbut due to the impact of the accident, he became permanently\r\ndisabled. The accident in question was alleged to have been\r\noccurred on account of the negligence on the part of the driver\r\nof the Tata Ace. The claimant in support of his contention\r\nexamined himself as P.W.1 and also examined the doctor as\r\nP.W.2 to substantiate his claim of disability and another witness\r\nas P.W.3 and got marked the documents at Exs.P.1 to 51. On\r\nthe other hand, the respondent examined three witnesses as\r\nR.W.1 to R.W.3 and got marked the temporary registration\r\ncertificate as Ex.R.1, copy of the policy as Ex.R.2, certified copy\r\nof ‘B’ register extract as Ex.R.3, certified copy of RC extract as\r\nEx.R.4 and certified copy of F.C. extract as Ex.R.5. The\r\nTribunal after considering the material available on record comes\r\nto the conclusion that the temporary registration of the vehicle\r\nwas expired and as on the date of the accident, there was no\r\nregistration certificate.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. In all, the claimant is entitled for compensation of\r\nRs.4,62,800/- as against Rs.2,88,000/-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Point No.(ii):\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 16. Now coming to the aspect of liability is concerned,\r\nthe Tribunal while answering issue No.4, comes to the conclusion\r\nthat on the date of the accident, the temporary registration was\r\nexpired and records also discloses that FC was valid from\r\n18.11.2011 to 20.01.2013 for a period of two years since the\r\nvehicle was a new vehicle. It is the contention of the Insurance\r\nCompany that as on the date of the registration of the vehicle as\r\nper Ex.R.4, 21.01.2011, it had no FC. The temporary <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">registration certificate would be issued only after verifying the\r\nFC. The non-registration of the offending vehicle as on the date\r\nof the accident is an undisputed fact and the vehicle had no\r\npermanent registration and the temporary registration was also\r\nexpired. The main contention of the learned counsel for the\r\nclaimant is that even if there is a fundamental breach, if the\r\ninjured is a third party, in view of the judgment of this Court in\r\nthe case of Yellavva (supra), the Insurance Company is liable to\r\npay the third party and recover the same from the insured even\r\nif there is breach of any condition recognized under Section\r\n149(2) of the MV Act. On the other hand, it is the contention\r\nof the Insurance Company that Section 39 of the MV Act\r\ndiscloses with regard to the necessity of registration of the\r\nvehicle.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">20. Having considered the principles laid down in the\r\njudgments of this Court and Madras High Court referred supra </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and also considering the material facts of the case on hand,\r\nadmittedly the claimant is a third party and Tata Ace driver\r\ndrove the vehicle in a rash and negligent manner and dashed\r\nagainst the claimant. This Court in the case of Raja Lingaiah\r\n(supra), held that the Insurance Company having received the\r\npremium for one year cannot contend that it is not liable to pay\r\nthe compensation, more particularly when the claim is made by\r\na third party. The Division Bench of this Court in the case of\r\nSAVITHRI HUDGE (supra), held that the Insurance Company\r\nhas to indemnify the claimant and recover the same from the\r\ninsured. The Madras High Court in the case of VALLI (supra)\r\nheld that the Insurance Company is bound to pay the claimants\r\nand to recover the same from the owner. Hence point (ii) is\r\nanswered accordingly that the Insurance Company has to\r\nindemnify the claimant and recover the same from the insured.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(iii):</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The appeal is allowed in part. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0500d82a34217930eed8e6e1319e294c.JPG', '6b054d0ad7176a046910ce9ee3404b74.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-07', 1, '', '', '2022-12-06 19:26:47', '2022-12-07 03:21:59'),
(2488, 'LrkFwqnzVPil7dBfbtdWdCjKw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Writ petition for recovery of money, by a private entity, from a private entity, arising out of a private contract, cannot be entertained. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S United Brothers Healthcare Services Pvt Ltd Vs Ministry of Health and Family Welfare and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 9587 of 2022 decided on 6 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner-M/s. United Brothers Healthcare Services\r\nPrivate Limited through its unit M/s United Hospital (‘the Hospital’\r\nfor short) is before this Court seeking to quash supply agreement\r\ndated 02-07-2021, revised letter of consent dated 13-12-2021 and\r\nalso recovery of money from the hands of the 4th respondent - M/s.\r\nBharat Biotech International Limited (‘the Company’ for short).\r\nTherefore, the issue in the lis is concerning a private contract\r\nbetween the two private entities.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Facts adumbrated are as follows:-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The petitioner/Hospital claims to be a state-of-the-art 50\r\nbedded super speciality hospital in the south of Bangalore and also\r\nclaims to have in-depth expertise in advanced medical and surgical\r\ninterventions. It is further averred that the Hospital is engaged in\r\nprocurement, storage and administering COVID-19 vaccines to\r\npeople on non-commercial terms. It need not be elaborated in any <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">great detail as it is in public domain that the entire globe was\r\nengulfed with pandemic COVID-19.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">5. The petitioner/Hospital claims to have requested the 4th\r\nrespondent to take back the remaining doses of Covaxin that was\r\nlying with the petitioner/Hospital and compensate the petitioner/\r\nHospital for the same or replace the doses with fresh sets that will\r\nhave a longer shelf life or to facilitate transfer of doses at the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">invoiced amount to other hospitals where there was a demand for\r\nCovaxin. The 4th respondent replies to the said communications\r\neither electronically or otherwise on 29-09-2021 that 15,000 doses\r\nof Covaxin were due to expire by November 2021 and the petitioner\r\nhimself could transfer Covaxins to other Hospitals. In this manner\r\ncorrespondences galore between the Hospital and the Company and\r\nfinally, on 23-11-2021, the petitioner/Hospital claims that the 4th\r\nrespondent back tracked the earlier offer and refused to process\r\nany refund relying on the terms of the supply agreement.\r\nTherefore, the entire stock of vaccines given to the\r\npetitioner/Hospital by the 4th respondent was set to expire and no\r\nsteps were taken by the 4th respondent to either compensate the\r\npetitioner/Hospital or to take back the vaccine which led the\r\npetitioner/Hospital to cause a legal notice upon the 4th respondent\r\nseeking refund of Rs.1,69,15,500/-. The petitioner/Hospital also\r\nclaims that it negotiated with the 4th respondent/Company through\r\nthird parties but, they also fail. Thereafter, the 4th\r\nrespondent/Company replies to the legal notice caused upon it\r\ndenying all the claims. The denial of the claim in terms of a private </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contract, between the two private entities, is what drives the\r\npetitioner/Hospital to this Court in the subject petition.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. I have given my anxious consideration to the submissions\r\nmade by the respective learned counsel and perused the material\r\non record. In furtherance whereof, the only issue that falls for\r\nconsideration in the facts of the case is: <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>Whether the subject writ petition under Article 226 of\r\nthe Constitution of India would be maintainable or\r\nentertainable before this Court? </b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20... <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Apex Court after noticing the judgment of the Constitution\r\nBench in PRADEEP KUMAR BISWAS holds that merely because\r\nthe Reserve Bank of India has laid down Banking policy in the\r\ninterest of banking system, it would not make the banking business\r\nof a private company carrying on its business as a commercial\r\nactivity a public duty. These private banking companies cannot be\r\nheld to be discharging a public function or a public duty. The Apex </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court thus reverses the judgment passed by the High Court of\r\nKerala, which had held the petition to be maintainable and holds\r\nthat writ petition under Article 226 of the Constitution of India\r\nwould not be maintainable.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">21. Herculean effort is made by the learned senior counsel\r\nto contend that the petition would come within ‘other authorities’\r\nunder Article 12 of the Constitution of India. Neither the\r\npetitioner/Hospital nor the Company would in any way come within\r\nthe definition of ‘other authorities’ for they do not discharge any\r\npublic function, their generation of business is purely on private\r\ninterest and on commercial lines. Remedy under Article 226 of the\r\nConstitution of India is pre-eminently a public law remedy and is\r\nnot generally available as a remedy against private wrongs. The\r\nscope of issuance of a writ in the nature of mandamus is limited to\r\nenforce public duty. I fail to understand what is the public duty\r\nthat is sought to be projected in the case at hand. The petitioner/\r\nHospital or the 4th respondent-Company neither discharge public\r\nduty nor they can be construed to be “Other Authority” to seek a\r\npublic law remedy at the hands of this Court. Therefore, the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">powers of the Court which deal with public law remedy is not ajar,\r\nbut closed, to the issue in the case at hand. Wherefore, the\r\npetition is neither maintainable nor entertainable, as this Court\r\nwould not issue a writ that would interfere with a private contract\r\nbetween two private entities. It is for the petitioner/Hospital to\r\navail all such remedy, as is available in law seeking recovery of\r\nmoney. <i>Writ petition for recovery of money, by a private\r\nentity, from a private entity, arising out of a private contract,\r\ncannot be entertained.</i></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n (i) Writ Petition stands dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2daeea8aa20328b8168096df01e7ba19.jpeg', 'cb4f7192a3cf05756c1b8ede0f9d662f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-12', 1, '', '', '2022-12-09 12:19:10', '2022-12-12 03:25:25'),
(2479, 'bGWrasytc9NbSLlUYYDAAUUUi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Maintenance and Welfare of Parents and Senior Citizens Act applies only when the transfer is subject to a condition of providing the basic amenities and basic physical needs to the transferor/senior citizen. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sudesh Chhikara Vs Ramti Devi and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 174 of 2021 decided on 6 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sanjay Kishan Kaul and Justice Abhay S. Oka.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This appeal arises out of a petition filed by respondent no.1\r\nunder Section 23 of the Maintenance and Welfare of Parents and\r\nSenior Citizens Act, 2007 (for short, ‘the 2007 Act’).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Respondent no.1 acquired a land bearing Khewat no.87,\r\nKhatoni no.124, Khasra no.315 measuring 1 bigha 18 biswa. She also\r\nacquired a land bearing Khewat No.247, Khasra No.269 (4 bighas 0\r\nbiswa) totally measuring 5 bighas and 3 biswa in Village Basai, Tehsil <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and District Gurugram, Haryana. She claimed that the acquisition\r\nwas by way of inheritance from her father.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Respondent no.1 executed a release deed in respect of a part of\r\nthe subject property in favour of her daughters (the appellant and\r\nsecond respondent’s mother). The said release deed (no.18151) was\r\nexecuted on 14th November 2008 and was duly registered. As per the\r\nsaid release deed, the daughters became the owners of one-third\r\nshare each in the property subject matter of the release deed. It is\r\nalso brought on record that on 24th March 2009, the respondent no.1\r\nexecuted another release deed (no.25502) in respect of one-fourth\r\nshare in the lands bearing Khasra No.269. The said release deed was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">executed by respondent no.1 in favour of her son Sunder. Another\r\nrelease deed (no.25504) was executed by respondent no.1 in favour\r\nof her son Sunder on the same day in respect of one-half share in the\r\nlands bearing Khasra No.315, Khasra No.314 and Khasra No.341.\r\nBoth the release deeds were registered. Respondent no.1, the\r\nappellant and the second respondent’s mother filed Civil Suit no.175\r\nof 2010 in the Civil Court essentially for challenging the release deed\r\ndated 24th March 2009 (no.25504). The Civil Court by judgment and\r\ndecree dated 17th July 2015 declared the release deed dated 24th\r\nMarch 2009 as null and void. The Civil Court held that the release\r\ndeed shall not bind respondent no.1, the appellant and the mother of\r\nrespondent no.2. Civil Suit no.234 of 2010 was filed by respondent\r\nno.1, the appellant and the second respondent’s mother for the same\r\nrelief in respect of the other release deed (no.25502). A similar decree\r\nwas passed in this suit on 19th March 2015</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The present appellant along with respondent no.2 challenged\r\nthe order of the Maintenance Tribunal by way of a writ petition\r\nbefore the High Court. By the impugned judgment, the order of the\r\nMaintenance Tribunal has been confirmed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. We have given careful consideration to the submissions.\r\nBefore dealing with the factual aspects, it is necessary to advert to\r\nthe legal aspects. The Sub-Divisional Magistrate acting as the\r\nMaintenance Tribunal under the 2007 Act has invoked the power\r\nunder Section 23 to declare that the subject release deed was void.\r\nThe 2007 Act has been enacted for the purposes of making effective\r\nprovisions for the maintenance and welfare of parents and senior\r\ncitizens guaranteed and recognized under the Constitution of India.\r\nThe Maintenance Tribunal has been established under Section 7 to\r\nexercise various powers under the 2007 Act. Section 8 provides\r\nthat the Maintenance Tribunal, subject to any rules which may be\r\nframed by the Government, has to adopt such summary procedure\r\nwhile holding inquiry, as it deems fit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. When a senior citizen parts with his or her property by\r\nexecuting a gift or a release or otherwise in favour of his or her near\r\nand dear ones, a condition of looking after the senior citizen is not\r\nnecessarily attached to it. On the contrary, very often, such\r\ntransfers are made out of love and affection without any expectation\r\nin return. Therefore, when it is alleged that the conditions\r\nmentioned in sub-section (1) of Section 23 are attached to a\r\ntransfer, existence of such conditions must be established before\r\nthe Tribunal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. Careful perusal of the petition under Section 23 filed by\r\nrespondent no.1 shows that it is not even pleaded that the release\r\ndeed was executed subject to a condition that the transferees (the\r\ndaughters of respondent no.1) would provide the basic amenities <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and basic physical needs to respondent no.1. Even in the impugned\r\norder dated 22nd May 2018 passed by the Maintenance Tribunal, no\r\nsuch finding has been recorded. It seems that oral evidence was not\r\nadduced by the parties. As can be seen from the impugned\r\njudgment of the Tribunal, immediately after a reply was filed by the\r\nappellant that the petition was fixed for arguments. Effecting\r\ntransfer subject to a condition of providing the basic amenities and\r\nbasic physical needs to the transferor – senior citizen is sine qua\r\nnon for applicability of sub-section (1) of Section 23. In the present\r\ncase, as stated earlier, it is not even pleaded by respondent no.1\r\nthat the release deed was executed subject to such a condition.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. We have perused the counter affidavit filed by respondent no.1.\r\nEven in the counter, it is not pleaded that the release was subject to\r\nsuch a condition. It is merely pleaded that the appellant had no\r\nintention to take care of her mother. Thus, the order of the\r\nMaintenance Tribunal cannot be sustained as the twin conditions\r\nincorporated in sub-Section (1) of Section 23 were not satisfied.\r\nUnfortunately, the High Court has not adverted to the merits of the\r\ncase at all.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. Hence, for the reasons recorded above, the appeal is allowed.\r\nThe impugned order dated 22nd May 2018 passed by the\r\nMaintenance Tribunal as well as the order dated 21st May 2019\r\npassed by the High Court are hereby set aside and the petition filed\r\nby respondent no.1 under Section 23 of the 2007 Act stands\r\ndismissed. There shall be no order as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f7b07cc72983250c6a01d09b5244433c.jpeg', 'b9dd278e69849b628f251bd5a801d5a2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-09', 1, '', '', '2022-12-07 13:41:14', '2022-12-09 08:42:58'),
(2480, 'tkuuVrGMxdu5aSXJ6MTKuktJF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Workmen Compensation Act. When the employer has not maintained the register, the salary claim of the claimant has to be accepted. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Hanumanthappa Vs The Shrira, General Insurance Co. Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.F.A. 2414 of 2014 decided on 2 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>These two appeals are filed by the claimant and Insurance\r\nCompany challenging the judgment and award dated 19.08.2013\r\nin WCA. No. Kaa Aa Daa/Kaa Na Pa/CR-45/2011 passed by the\r\nLabour Officer and Commissioner for Workmen, Davanagere\r\nDistrict, Davanagere (‘the Commissioner’ for short) questioning\r\nthe quantum and liability.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The claimant, in the appeal in M.F.A.1234/2014\r\nwould contend that the Commissioner has committed an error in\r\ntaking the disability at 80% as against 85% assessed by the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Doctor, who has been examined as P.W.3 and ought to have\r\ntaken the disability at 100% when the right hand of the driver,\r\nwho is having inter-state driving license for HTV and HPV is\r\namputated. It is also contended that the Commissioner ought to\r\nhave taken the income at Rs.10,000/- per month and instead,\r\nthe Commissioner taken the income at Rs.4,000/- per month\r\nand failed to take note of the daily allowance of Rs.100/- per\r\nday. It is further contended that the Commissioner failed to take\r\nnote of Exs.P10 to P12 which clearly establishes that he is\r\nsuffering from functional disability of 100% and photographs\r\nExs.P10 to 12 discloses that an amputation was done to his right\r\nhand.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Having heard the respective counsel and also on\r\nperusal of the material available on record, the points that would\r\narise for consideration of this Court are:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Whether the Commissioner had power or\r\nauthority to hold enquiry proceedings under\r\nthe provisions of the Employee’s\r\nCompensation Act, 1923 amended vide Act <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">45 of 2009 in view of amendment to Section\r\n20 of the said Act?</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n(ii) Whether the Commissioner committed an\r\nerror in taking the disability at 80% instead\r\nof 90% as contended by the claimant?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n(iii) Whether the Commissioner committed an\r\nerror in taking the income at Rs.4,000/- per\r\nmonth instead of Rs.10,000/- per month and\r\nnot considering the material on record?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(iv) What order?</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(i)\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 10. The main contention of the appellant-Insurance\r\nCompany is that, vide Act 45 of 2009, the provision of the Act\r\nwas amended and in view of Section 20 of the said Act which\r\ncame into force with effect from 18.01.2010, the Commissioner\r\nhas no jurisdiction to consider the matter. The said contention\r\ncannot be accepted for the reason that, though the Act was\r\namended, the notification was issued by the Government only on\r\n23.01.2014 conferring powers to the concerned Courts to deal\r\nwith the claims made under the Employee’s Compensation Act,\r\n1923 in view of Section 20 of the Act. In the case on hand, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">judgment and award was passed on 19.08.2013 and the\r\nnotification was issued on 23.01.2014 i.e., subsequent to the\r\ndisposal of the case. Hence, the contention of the learned\r\ncounsel appearing for the Insurance Company that the\r\nCommissioner was not having jurisdiction cannot be accepted.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. The learned counsel appearing for the Insurance\r\nCompany has also placed the Court copy of the orders passed in\r\nW.P.No.16769/2013 dated 22.08.2013, 27.08.2013 and\r\n21.01.2014 wherein, a question has arisen with regard to\r\ncompetence of the Commissioner to consider the matter and the\r\nproceedings before the Commissioner appointed under Section\r\n20 of the said Act was stayed on 27.08.2013. But, in the case\r\non hand, the matter was decided on merits prior to the said date\r\ni.e., on 19.08.2013 itself. Hence, the contention of the learned\r\ncounsel appearing for the Insurance Company that the\r\nCommissioner had no jurisdiction to consider the matter will not\r\ncome to the aid of the Insurance Company. Hence, I answer\r\npoint No.(i) as ‘negative’.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point Nos.(ii) and (iii)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. Now, the question that would arise for consideration\r\nof this Court is whether the compensation awarded by the\r\nCommissioner is on the higher side or lower side. The main\r\ncontention of the Insurance Company is that the disability taken\r\nby the Commissioner at 80% is on the higher side. On the other\r\nhand, it is the contention of the learned counsel for the claimant\r\nthat, as a result of amputation of his right upper limb, he\r\ncompletely lost his earning capacity and functional disability\r\nwould be 100% and the same would have to be taken. It is also\r\ncontended that, even in terms of the Schedule I, Part-II of list of\r\ninjuries, the percentage of loss of earning capacity would be\r\n90% and not 80% as held by the Commissioner.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. Having perused the material available on record i.e.,\r\nboth the photographs as well as the evidence available on\r\nrecord, the Doctor, who has been examined as P.W.2 has\r\nassessed the disability at 85% and the Doctor, who amputated\r\nhis right upper limb has also been examined as P.W.3 and the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">photographs which have been produced before the Court\r\ndiscloses that his right hand was amputated at the shoulder joint\r\nin terms of Ex.P11 and having seen the same, the amputation is\r\nbelow shoulder with stump less than [20.32 Cms.] from tip of\r\nacromion as per Schedule I, Part-II is 80%. Having considered\r\nthe photograph at Ex.P11, there is a stump and the same is not\r\nan amputation at the shoulder joint and hence, the\r\nCommissioner has rightly taken the disability at 80% for\r\ncalculating the loss of earning capacity. No doubt, the job of a\r\nDriver requires hand to drive the vehicle, but it is not a claim\r\nunder the M.V. Act and it is a claim under the Employee’s\r\nCompensation Act, 1923 and when the schedule injury is taken\r\ninto consideration and assessed the percentage of disability for\r\ncalculating the loss of earning capacity, the very contention of\r\nthe learned counsel appearing for the claimant that the\r\nCommissioner ought to have considered the 100% disability\r\nunder the Employee’s Compensation Act, 1923 cannot be\r\naccepted. Hence, I do not find any force in the contention of the\r\nlearned counsel appearing for the claimant that the\r\nCommissioner ought to have taken 100% disability </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. In the case on hand also, the employer has not\r\nappeared and contested the matter and also not disputed the\r\nclaim of the claimant and even in a case of disputed claim, the\r\nApex Court in JAYA BISWAL’s case held that when the\r\nemployer has not maintained the register, the claim of the\r\nclaimant has to be accepted and in the case on hand, the\r\nclaimant was having inter-state driving license to drive HTV and\r\nHPV and hence, the judgment of the Apex Court is aptly\r\napplicable. Hence, by taking the income at Rs.10,000/- per\r\nmonth, since he is a Driver having inter-state driving license for\r\nHTV and HPV, this Court has to reassess the compensation.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. Having considered the income at Rs.10,000/- per\r\nmonth and since, it is a case of amputation, 60% of his income\r\nhas to be taken which comes to Rs.6,000/- per month. Having\r\ntaken the income at Rs.6,000/- per month, the disability at 80%\r\nand the relevant factor 205.95, the loss of future earning\r\ncapacity works out to Rs.9,88,560/- (6,000 x 205.95 x 80/100). <span style=\"font-size: 12pt;\">Apart from that, the claimant is also entitled for medical\r\nexpenses which has been considered by the Commissioner to the\r\ntune of Rs.1,14,049/-. Hence, in all, the claimant is entitled for\r\ncompensation of Rs.11,02,609/-</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(iv)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n(i) The appeal filed by the Insurance Company\r\nin MFA No.2414/2014 is dismissed. The\r\nappeal filed by the claimant in\r\nM.F.A.No.1234/2014 is allowed-in-part. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f235d86cebb53c1b4e76f70e6723bc6a.JPG', 'a2e734ddd8a0d32bf20b181a199e8c1e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-10', 1, '', '', '2022-12-07 14:11:58', '2022-12-10 07:10:40');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2481, 'QNSzC4b3LJJnIhwwbXzGuaX9r', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'After issuing the policy, Insurance Company cannot avoid liability if the cheque towards premium is dishonoured unless the Insurer cancels the policy and intimates the insured. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Srikanta M.R Vs Geetha and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.F.A. 7043 of 2014 decided on 2 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. The factual matrix of the case of the claimant before\r\nthe Tribunal is that on 06.10.2012 at about 1.00 a.m., the\r\nclaimant was driving the autorickshaw, at that time, the driver of\r\nthe offending vehicle i.e., the lorry suddenly stopped the same in\r\nthe middle of the road without giving any signal carelessly, due\r\nto which, the claimant touched his auto to the lorry as a result,\r\nthe claimant had sustained injuries and immediately he was\r\nshifted to Mallige Medical Center and then, he was shifted to\r\nNIMHAS hospital and thereafter, he was shifted to Shekar\r\nhospital wherein he has taken treatment as an inpatient for a\r\nperiod of 9 days and again he was referred to NIMHAS hospital\r\nand thereafter, he took treatment at Victoria hospital. The\r\nclaimant in order to substantiate his contention, examined\r\nhimself as PW1 and got marked the documents at Ex.P1 to P15\r\nand examined another witness as PW2. On the other hand, the\r\nrespondents have examined one witness as RW1 and got marked\r\nthe documents at Ex.R1 to R7. The main contention of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Insurance Company is that the cheque which was issued for\r\npolicy was dishonoured hence, the Insurance Company is not\r\nliable to pay the compensation. The Tribunal after considering\r\nboth the oral and documentary evidence available on record\r\nfastened the liability on the owner and granted the compensation\r\nof Rs.1,57,200/- with 8% interest.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. Being aggrieved by the judgment and award of the\r\nTribunal, the present appeal is filed by the claimant contending\r\nthat the Tribunal has erred in holding that the second\r\nrespondent herein has issued proper notice to the first\r\nrespondent and also to the RTO in respect of dishonour of\r\ncheque received by it towards the premium. The learned\r\ncounsel vehemently contend that the Tribunal has committed an\r\nerror in relying upon the documents at Ex.R2 to R7 and held that\r\nthe notice, in question, was deemed to be served on the first\r\nrespondent and the concerned RTO but the postal\r\nacknowledgment for having served the notice is not produced.\r\nThe Tribunal also committed an error in not awarding just and\r\nreasonable compensation and the compensation awarded in all <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the heads are very meager when the claimant had suffered the\r\nfracture of maxilla, diffuse axonal injury and fright frontal sulcus\r\nsub arrchnoid haemorrhage and he was shifted to several\r\nhospitals for the treatment and he has taken the treatment as\r\ninpatient for 12 days and the Tribunal has not awarded\r\ncompensation on the head of ‘future medical expenses’ hence, it\r\nrequires interference of this Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. Having heard the arguments of the respective\r\ncounsel appearing for the parties and also on perusal of the\r\nmaterial on record, the points that would arise for consideration\r\nof this Court are:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n1. Whether the Tribunal has committed an error in not\r\nawarding just and reasonable compensation as\r\ncontended by the claimant?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. Whether the Tribunal has committed an error in\r\nfastening the liability on the insured instead of\r\ninsurer and whether it requires interference of this\r\nCourt?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. What order? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.1:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. The main contention of the claimant that he had\r\nsuffered the fracture of maxilla and also other injuries as a\r\nresult, he has suffered permanent disability and also he was\r\nunable to attend the duty of driver for a period of 4 months.\r\nHaving considered the material available on record, it discloses\r\nthat the accident was occurred in the year 2012 and the records\r\nalso reveals that he was taken the treatment at Mallige hospital\r\ni.e., immediately after the accident wherein he was an inpatient\r\nonly for one day and then he was shifted to NIMHANS and then\r\nhe was referred to Shekar hospital wherein he was an inpatient\r\nfor a period of 9 days and again he was referred to NIMHANS <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">wherein also he took treatment and thereafter at Victoria\r\nhospital and the same is evident from the document at Ex.P11-\r\ndischarge summary wherein it discloses that he was an inpatient\r\nfrom 16.10.2012 to 19.10.2012 and thereafter he was\r\ndischarged. Hence, it is clear that he was an inpatient for a\r\nperiod of 12 days and having considered the nature of injuries\r\nand also he was referred to NIMHANS hospital since he has\r\nsuffered facial injury and head injury and Ex.P6-wound\r\ncertificate discloses that he has suffered fracture of maxilla,\r\ndiffuse axonal injury and fright frontal sulcus sub arrchnoid\r\nhaemorrhage and though the doctor has opined that the injury\r\nNo.1 is grievous in nature and injuries No.2 and 3 are simple in\r\nnature, he was referred to NIMHANS hospital and also he was\r\ntaken to Shekar hospital with the history of loss of conscious and\r\nthere was a bleeding in the ear and there was omitting and once\r\nagain he was referred to the NIMHANS hospital on 13.10.2012\r\nand he took treatment at Victoria hospital for a period of 4 days\r\nand the Tribunal has failed to take note of the said fact into\r\nconsideration and awarded the compensation of Rs.35,000/- </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">towards pain and sufferings hence, it requires to be enhanced to\r\nRs.45,000/- as against Rs.35,000/-.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. The claimant has not examined any doctor with\r\nregard to disability is concerned and no material is placed before\r\nthe Tribunal to show that he had suffered the permanent\r\ndisability or not on account of the said injuries and the Tribunal\r\nalso rightly comes to the conclusion that when the doctor has\r\nnot been examined with regard to assessing the disability, the\r\nquestion of awarding the compensation towards ‘future loss of\r\nincome’ does not arise. However, the Tribunal would have taken\r\nnote of the nature of the injuries though it cannot be assessed\r\nby way of permanent disability, ought to have awarded the\r\ncompensation considering the nature of fracture and also the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">head injury hence, it is appropriate to award the compensation\r\non the head of disability in the absence of medical evidence to\r\nthe tune of Rs.50,000/-.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13. The Tribunal has awarded the compensation of\r\nRs.10,000/- towards loss of amenities and he was aged about 32\r\nyears at the time of the accident and hence, it is appropriate to\r\nenhance the same to Rs.15,000/- as against Rs.10,000/-. In all,\r\nthe claimant is entitled for an amount of Rs.2,50,200/-. Hence,\r\nPoint No.1 is answered accordingly.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.2:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. Having considered the principles laid down in the\r\njudgments referred supra and these are the judgments\r\nconsidered by the Apex Court after the regulations of 2002 which\r\nhave been pointed out by the counsel for the Insurance\r\nCompany. The Apex Court also discussed with regard to Section\r\n64VB of the Insurance Act and the judgment of Balkar Ram and\r\nLaxmamma and also the earlier judgments which have been\r\nreferred, it is very clear that the Court has to take note of the\r\npublic interest in respect of third parties are concerned and\r\nordered to pay the compensation. In the case on hand also the\r\nclaimant is a third party who was the driver of the auto and\r\noffending vehicle was suddenly stopped as a result, he went and\r\ndashed against the said lorry and sustained injuries and when\r\nthe claimant is a third party, as observed by the Apex Court in\r\nthe judgment of Inderjit Kaur held that even if he was entitled\r\nto avoid the policy for not having received the premium, held,\r\nnonetheless liable for third party risk as the public interest\r\nserved by an insurance policy must prevail over the insurer\r\ninterest and hence, I do not find any force in the contention of\r\nthe counsel for the Insurance Company that the Insurance <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Company is not liable to pay compensation. In the subsequent\r\njudgment of Seema Malotra’ case, the Apex Court held that the\r\ninsurer is under no obligation to perform his part of the contract,\r\nexcept in relation to his statutory liabilities in respect of third\r\nparties. Hence, it is clear that it is a statutory liability in relation\r\nto third parties. The Apex Court also in the judgment of\r\nLaxmamma’s case it is held that the statutory liability of\r\ninsurer to indemnify third parties which policy covered subsists\r\nand insurer has to satisfy award of compensation unless policy of\r\ninsurance was cancelled by insurer and intimation of such\r\ncancellation had reached insured before the accident. In the\r\ncase on hand also I have already pointed out that no document\r\nis placed for having given the intimation and the same was\r\nacknowledged by the insured and unless the same is reached the\r\ninsured the Insurance Company cannot avoid the liability and I\r\nhave already pointed out that the Tribunal has not discussed\r\nanything about reaching of notice to insured. Under the\r\ncircumstances, the contention of the Insurance Company cannot\r\nbe accepted and the Tribunal has committed an error in\r\nfastening the liability on the insured instead of insurer. Hence, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the claimant has made out the case to fasten the liability on the\r\nInsurance Company. Hence, I answer point No.2 accordingly.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.3:<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The appeal is allowed in part. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '102fb5be74f6525ae1ace11f2fb61783.JPG', 'bf51ccec3fec5e719fdb1e48cac409e4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-08', 1, '', '', '2022-12-07 14:30:50', '2022-12-08 03:18:20'),
(2482, 'sEp8AlnggOxhUJq7Lifwdbq5f', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Statutory body using public money to indulge in frivolous litigation. Karnataka High Court imposes cost of Rs. 5 lakhs on the Bangalore Development Authority. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Commissioner Bangalore Development Authority Vs S Venkatarama Reddy and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R.F.A. 2045 of 2011 decided on 29 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V. Srishananda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Shorn of unnecessary details, factual matrix of\r\nthe case on hand reveals as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Plaintiffs being the brother and sister are the absolute\r\nowners in possession of the property bearing Survey\r\nNo.26/1 measuring 2 acres 32 guntas situated at Alahalli\r\nvillage, Uttarahalli Hobli, Bengaluru South Taluk\r\n[hereinafter referred to as the \'suit schedule property\'\r\nfor short]. The plaintiffs have purchased an extent of 32\r\nguntas in Survey No.26/1 of Alahalli village from the\r\n previous owners by names Sheik Kumruddin and Sheik\r\nFakru Rehaman and thereafter, they again purchased the\r\nremaining 2 acres of land, in the same Survey Number\r\nthrough a registered sale deed dated 23.01.1992 from its\r\nprevious owners Smt.Chand Bibi and her sons Sheik\r\nKhasim and Sheik Basheer and their children. On\r\npurchase of the said land, the plaintiffs got mutated the\r\nrevenue entries in respect of the suit schedule property\r\nand they were paying taxes regularly. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. In view of the rival contentions of the parties,\r\nfollowing points would arise for consideration:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">(1) Whether the appellant has made out a case\r\nthat the suit land has been acquired and therefore,\r\nplaintiffs are not in lawful possession of the suit </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">property and thus they are not entitled for an order\r\nof injunction.?\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(2) Whether the impugned judgment is\r\nsuffering from legal infirmity or perversity and thus\r\ncalls for interference?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(3) What order?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. It is not in dispute that the name of the owners\r\nof the land was shown as Venkatarama Shetty\r\nS/o.Srinivasa Shetty instead of Venkataramanareddy S/o.\r\nSrinivas Reddy. Therefore, the very notifications itself is\r\ndefective</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. Thereafter, it is not in dispute and as borne out\r\nby the material on record, that plaintiffs approached the\r\nDeputy Commissioner for change of usage of suit property\r\nfrom agricultural land to non-agricultural/residential\r\npurpose. The applications sought for converting land to\r\nresidential purpose has been rejected by the Deputy\r\nCommissioner on the ground that katha of the property\r\nstood in the name of the BDA by virtue of acquisition.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>61. In view of the foregoing discussion, this court\r\nis of the considered opinion that the appellant has not\r\nmade out any case whatsoever that the plaintiffs are not in\r\na lawful possession of the suit property.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>62. Having held thus, BDA being a statutory body,\r\nis established by tax payers money. Needless to\r\nemphasize that the expenses of the employees and other\r\nincidental expenses of such statutory body is met by tax\r\npayers money. In such circumstances, action of the BDA\r\nshould be in consonance to advance the cause of justice\r\nand not otherwise. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>63. But, in the case on hand, BDA, being a party to\r\nthe Joint Memo involved itself in un-wanted litigation.\r\nPractically at every stage, BDA acted in a manner worse\r\nthan an ordinary litigant. This conduct of the BDA is\r\nevident from the fact that even after Ex.D1 stood quashed\r\nin WP No.39204/2010, suit of the plaintiff was contested\r\nand basis for the same is Ex.D1. The appeal grounds\r\nreferred to supra does not even mention that Ex.D1 was\r\nquashed by this Court. There is no mention of Ex.D1 in\r\nthe synopsis. On the contrary, BDA said to have\r\ncompleted the acquisition proceedings and filed a\r\nReference Petition under Section 30 and 31 of the Land\r\nAcquisition Act in LAC No.55/1996 referred to supra.\r\nThere was an exparte order passed in the said Reference\r\nPetition. Plaintiffs, on coming to know of the exparte\r\norder, moved the court with proper petition and got the\r\nsaid Reference Petition restored. Thereafter, on contest\r\nReference petition came to be dismissed holding that the\r\nBDA failed to establish that the suit property was acquired\r\nin accordance with law. Even after such a finding is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">recorded by the Reference Court by the BDA, one of the\r\ngrounds raised in the Appeal Memo is that suit property is\r\nacquired by the BDA and therefore, the impugned\r\njudgment is incorrect. BDA being a statutory body having\r\nnot challenged the dismissal order passed in LAC\r\nNo.55/1996, could not make it as a ground in the present\r\nappeal to re-consider the same. So also in ground No.6,\r\nagain BDA has relied on Ex.D1 which was already quashed\r\nby this court as referred to supra.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>67. Such litigants, if allowed to go Scot free would\r\nnot only encourage unscrupulous elements to try their luck\r\nwith similar petitions/appeals resulting in burden to the\r\njustice dispensation system, but also result in loss of\r\nconfidence in the public at large about the efficacy of the\r\nInstitution as well. Therefore, it is the duty of this court to\r\ncheck such litigants by saddling appropriate exemplary\r\ncosts by resorting to power vested in this Court under\r\nSection 35A of CPC.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>77. Further, Government or statutory bodies are\r\ninvested with necessary paraphernalia than a individual\r\nlitigant. Therefore, they should strive hard in lessening the\r\nburden on the judiciary by their fairness in resolving the\r\ndisputes in the court of law. In other words, Government <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">or statutory bodies can act as a model litigant. But BDA\r\nhas failed to do so in the case on hand as discussed supra.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">78. In view of foregoing discussion, invariably\r\nPoint Nos.1 & 2, are answered in the Negative and\r\nAffirmative respectively.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>79. POINT NO.3: In view of the findings on Point\r\nNos.1 & 2 above, following order is passed:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\nORDER\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Appeal is dismissed with costs.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) This Court quantifies the cost in a sum of\r\nRs.5,00,000/- [Rupees Five Lakhs] only payable by the\r\n Bengaluru Development Authority to the plaintiffs.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd6415bf6a9ef82e0763a3c607f5597a3.JPG', '487b5149573e3d717e432e15ae033261.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-08', 1, '', '', '2022-12-07 16:00:04', '2022-12-08 06:43:10'),
(2483, 'EFMguHkSPNNZQgAcQCcXe7aaE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. Remitting matter for a denovo trial should be exercised as a last resort to avoid grave miscarriage of justice defect which cannot be cured at an appellate stage. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pradhan Mercantile Pvt Ltd Vs M/s. Virgin Apparels and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Revision Petition 773 of 2013 decided on 5 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.B. Prabhakara Sastry.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">The present petitioner, as a complainant had filed a\r\ncomplaint under Section 200 of the code of Criminal\r\nProcedure, 1973 (hereinafter for brevity referred to as “the\r\nCr.P.C.”) in C.C.No.25334/2010, against the present\r\nrespondents, arraigning them as accused No.1 and accused\r\nNo.2 respectively in the Court of the XIII Additional Chief\r\nMetropolitan Magistrate, Bangalore (hereinafter for brevity </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">referred to as “the Trial Court”) for the offence punishable\r\nunder Section 138 of the Negotiable Instruments Act, 1881\r\n(hereinafter for brevity referred to as “the N.I. Act”).</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. After hearing the learned counsels for the parties,\r\nthe only point that arise for my consideration in this revision\r\npetition is:\r\n <i>Whether the impugned judgment passed by the\r\nCourt of the LII Additional City Civil and Sessions\r\nJudge, Bangalore City (CCH-53) dated\r\n02-09-2013 in Criminal Appeal No.103/2013, warrants\r\nany interference at the hands of this Court? </i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. In the instant case, the accused in the Trial Court\r\nitself, had taken a contention that a de novo trial is\r\nrequired to be conducted by the Magistrate. A memo to\r\nthat effect was also filed by them. The complainant had\r\nfiled his detailed objection to the said memo. After\r\nrecording the filing of such a memo and objection to the\r\nmemo, the Magistrate of the Trial Court in her impugned\r\njudgment has made a detailed discussion on the contention\r\ntaken up by the accused and has made a specific\r\nobservation that the predecessor Magistrate had recorded\r\nthe entire memorandum of evidence of witnesses and not\r\nthe substance of evidence as required under the summary\r\ntrial.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. A careful perusal of the evidence recorded by the\r\nTrial Court would also go to show that, the evidence\r\nrecorded was in full and in verbatim as stated by the\r\nwitness but not only the summary of the evidence given by\r\nthe parties. As observed by the Hon’ble Apex Court in\r\nBAHARUNI\'s case (supra), remitting the matter for a denovo trial should be exercised as a last resort and should be\r\nused sparingly when there is grave miscarriage of justice in\r\nthe light of illegality, irregularity, incompetence or any\r\nother defect which cannot be cured at an appellate stage.\r\nThe Appellate Court (Sessions Judge\'s Court in the instant\r\ncase) should be very cautious and exercise the discretion\r\njudiciously while remanding the matter for a de-novo trial.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. However, in the instant case, though the\r\nMagistrate of the Trial Court has demonstrated through her <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">judgment that, the evidence recorded was not in a\r\nsummary manner but as though it was a warrant case, the\r\nevidence of the parties in its entirety and as given by them\r\nwere recorded but not its summary and that the other side\r\nwas given sufficient opportunity to cross-examine the\r\nwitness, cannot be ignored. In such a circumstance, when\r\nthe evidence of the parties, in the chief examination, crossexamination and re-examination (if any) were recorded in\r\nverbatim and was faithfully placed on record then for\r\nmerely not recording the order observing that the matter\r\nwould be tried as a summons case or as a regular trial\r\nwould not itself vitiate the trial conducted by the Magistrate\r\nof the Trial Court, when it has not resulted in miscarriage of\r\njustice. Therefore, the judgment passed by the Sessions\r\nJudge’s Court only on technicalities and setting aside the\r\nimpugned judgment passed by the Trial Court and ordering\r\nfor a de-novo trial would not sustain. The Sessions Judge\'s\r\nCourt ought to have decided the appeal before it on its\r\nmerit, as such, the revision under consideration deserves to\r\nbe allowed and the matter requires to be remanded to the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Sessions Judge’s Court for its fresh disposal, in accordance\r\nwith law.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>[i] The Criminal Revision Petition is\r\nallowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '44e76692fa8d86237c24c6222555d4f9.JPG', '97bd0ddc4ecafb66e9fef91f3289190e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-10', 1, '', '', '2022-12-08 12:48:25', '2022-12-10 03:16:43');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2484, 'WalfPR11rJYOMcublnw04swhN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Corporation carrying out perennial works through contractor employing Pourakarmikas. Karnataka High Court orders regularisation against sanctioned vacant posts. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Tumakuru City Corporation Vs Tumkuru Poura Karmikara Sangha and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 28392 of 2018 decided on 6 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5.1. The Corporation is a statutory body\r\nconstituted and established under the\r\nprovisions of the Karnataka Municipal\r\nCorporation Act, 1976, prior to being\r\ndeclared as a Corporation, it was a City\r\nMunicipal Council, Tumkur governed under\r\nthe provisions of Karnataka Municipality Act,\r\n1964.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n5.2. The 1st respondent - Union had submitted a\r\nrepresentation to the Government of\r\nKarnataka seeking for regularization of 250\r\nPourakarmikas working with the City\r\nMunicipal Council for the past 8 to10 years,\r\non the ground that they were discharging\r\nthe same duties as that of Pourakarmikas\r\nand as such, were entitled to equal pay for\r\nequal work with all statutory benefits<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5.5. Initially the Tribunal was of the view that the\r\n1\r\nst respondent - Union was not entitled for\r\nany relief and the Reference was answered\r\nin the negative by an award dated\r\n04.07.2006. The Tribunal at that point of\r\ntime held that the workmen being employed\r\nthrough Contractors, there is no employer–\r\nemployee relationship between the erstwhile\r\nCity Municipal Council, Tumkur and the\r\nworkmen.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5.9. The Division Bench also directed the Tribunal\r\nto ascertain the effect of registration and/or\r\notherwise of the Contractor under Sections 7\r\nand 12 of the Contract Labour (Regulation\r\nand Abolition) Act, 1970 (hereinafter\r\nreferred to as ‘the CLRA’, for brevity) and\r\nhow it would affect the rights of the\r\nworkmen.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Based on the above submissions, the points that\r\nwould arise for consideration are:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10.1. Whether the members of the 1st\r\nrespondent Union have been engaged\r\nby the Corporation for working on\r\nperennial nature and have been working\r\nfor a long period of time?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10.2. Whether the employment of the\r\nworkmen is purely on temporary adhoc\r\nbasis or is there any permanency in\r\nsuch employment?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10.3. Whether the work carried out by the\r\nworkmen is identical to that carried out\r\nby regular workmen of the petitioner\r\nCorporation?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10.4. Whether the workmen would be entitled\r\nfor absorption and regularization of\r\ntheir services?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10.5. Whether the workmen would be entitled\r\nto the same benefits as that provided to\r\nthe regular employees based on the\r\nconcept of equal pay for equal work?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10.6. Whether the order passed by the\r\nTribunal suffers from any legal\r\ninfirmities requiring interference at the\r\nhands of this Court.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10.7. What order? </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">12. Answer to Points No.1 and 2: Whether the\r\nmembers of the 1st respondent Union have </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">been engaged by the Corporation for working\r\non perennial nature and have been working\r\nfor a long period of time?\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Whether the employment of the workmen is\r\npurely on temporary adhoc basis or is there\r\nany permanency in such employment?</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">12.13. In the above circumstances, at least for a\r\nperiod of 20 years it appears that the\r\nCorporation is engaging the services of\r\nContractors for the purpose of cleaning\r\nand/or handling Municipal Solid Waste\r\n(MSW) as detailed hereinabove. A period of\r\n20 years in my considered opinion cannot be\r\nsaid to be a temporary period, but would\r\nhave to be considered perennial in nature,\r\nsince apparently Corporation would continue </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to engage such Contractors in future for\r\nproviding similar services.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12.14. The members of the first respondent Union\r\nhaving been engaged by the Contractor for\r\nthe purpose of providing services. It is seen\r\nthat irrespective of who the Contractor is, it\r\nis the said members of the first respondent\r\nwho have been engaged to provide services.\r\nIt is not that the workmen change from time\r\nto time on the basis of the Contractor\r\nchanging, but irrespective of the Contractor\r\nchanging, it is same workmen who continue\r\nto render services.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12.15. Thus, the workmen being engaged on a\r\nperennial basis, mere change of a Contractor\r\ncannot be said to make such engagement\r\ntemporary. The period of contract being\r\nlimited to 11 months would have no role to</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">play so long as the members of the first\r\nrespondent Union are engaged by different\r\nContractors.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12.16. Hence, I answer points No.1 and 2 by\r\nholding that the members of the first\r\nrespondent Union have been engaged by the\r\nCorporation through the Contractor for\r\ncarrying out works which are perennial in\r\nnature and that they have been working for\r\na sufficiently long period of time, which\r\nperiod cannot be said to be temporary, but\r\nwould have to be considered to be\r\npermanent.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Answer to point number 3: Whether the work\r\ncarried out by the workmen is identical to\r\nthat carried out by regular workmen of the\r\npetitioner Corporation?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">13.7. A Pourakarmika by very definition would\r\nmean a person who deals with Municipal\r\nSolid Waste and/or cleaning activities of that\r\nparticular area. It may be that there is lot of\r\ncleaning to be done one day and another day\r\nlesser cleaning to be done, but that does not\r\ndeviate from the principle that Pourakarmika\r\nis concerned with cleaning activities and not\r\noffice duties. Merely because the\r\nCorporation makes use of Pourakarmikas\r\nappointed by it to carry out administrative </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and/or office functions, the same does not\r\ntake away the role and responsibilities of\r\nPourakarmikas.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13.8. Whether the Corporation could use the\r\nPourakarmikas to carry out an administrative\r\nand official function is not a matter which\r\nthis Court is required to go into in the\r\npresent matter. But it is something that the\r\nCorporation has to consider taking into\r\nconsideration the deficiency in the number of\r\nPourakarmikas working in the Corporation as\r\nalso the need to maintain safety and hygiene\r\nwithin the jurisdiction of the Corporation.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13.9. Hence I answer point No.3 by holding\r\nthat the work carried out by the\r\nworkmen is more or less identical to\r\nthat carried out by regular workmen of\r\nthe petitioner Corporation. The Union <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">having shown from the agreement the\r\nnature of work performed by them, the\r\nCorporation has not placed any material\r\non record which would indicate that the\r\nwork carried out by the permanent\r\nemployees is different than that carried\r\nout by the members of the Respondent\r\nNo.1 Union.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. Answer to point number 4. Whether the\r\nworkmen would be entitled for absorption\r\nand regularization of their services?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14.13. In the present case, the facts are little\r\ndifferent. In as much as even as per the\r\nsubmission made by Sri. R. Subramanya,\r\nlearned counsel appearing for the\r\nCorporation, the State Government has\r\ndirected that the Municipal Corporation to\r\nappoint one Pourakarmika for every 700\r\ncitizens in the Corporation. According to the\r\nCorporation, the population coming within\r\nthe Corporation is 3,55,058. That would <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">mean that Corporation had to employ about\r\n507 Pourakarmikas.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14.21. The fact situation here being completely\r\ndifferent, the contractors being engaged for\r\nmore than 20 years and continue to be\r\nengaged, since the Reference in the present\r\nmatter itself was made in the year 2002 and\r\nnow we are in the year 2022 indicates that,\r\nthe work being perennial in nature, the\r\nCorporation is in requirement of\r\nPourakarmikas to discharge its functions.\r\nThe sanctioned post not having been filled\r\nand the required posts not having been <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sanctioned, it is for the Corporation to write\r\nto the Government seeking for exemption, if\r\nany, available and permission to fill up the\r\nvacant posts with the persons who have\r\napplied and are qualified even though they\r\nmay be of different category. Merely\r\nbecause the persons of a particular category\r\nfor whom the posts have been reserved do\r\nnot apply despite repeated notifications, the\r\nsaid posts cannot be left vacant in perpetuity\r\nresulting in the present situation.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">14.22. Therefore, apart from the reasons given by\r\nthe Tribunal, I am of the considered opinion\r\nthat in the present case the requirement of\r\nPourakarmikas being established, the\r\nsanctioned posts being vacant and the\r\nrequirement being in excess of the\r\nsanctioned posts, necessary steps would</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">have to be taken by the government for\r\nregularisation of the services of the members\r\nof the first respondent Union.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. Answer to Point No.5: Whether the workmen\r\nwould be entitled to the same benefits as\r\nthat provided to the regular employees\r\nbased on the concept of equal pay for equal\r\nwork?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15.10. Even on this ground I am of the considered\r\nopinion that the employer-employee\r\nrelationship is established and it is only the\r\nsubterfuge which has been used by the\r\nCorporation to engage the workmen on\r\ncontract basis so as so make lesser\r\npayment<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15.11. In that background I am of the considered\r\nopinion that the subterfuge cannot be\r\nallowed to work and the same would be\r\nviolative of Article 14 of the Constitution of\r\nIndia. The workmen engaged through\r\ncontractor would have to be paid same <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">emoluments as that paid to the regular\r\nemployees based on the concept of equal\r\npay for equal work as held by the Tribunal</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>16. Answer to point No.6:Whether the order\r\npassed by the Tribunal suffers from any legal\r\ninfirmities requiring interference at the\r\nhands of this Court.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16.1. Having considered the arguments advanced\r\nby the Sri. R. Subramanya, Sri. Arun Shyam,\r\nlearned AAG and Sri. Anantharam and\r\nhaving answered the above points, I am of\r\nthe considered opinion that the order passed\r\nby the Tribunal does not suffer from any\r\nlegal infirmities requiring interference at the\r\nhands of this Court.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. Answer to point No.6: What Order?<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17.1. The above writ petition stands dismissed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e2c02e51f82796a009af6cabd46b16a8.JPG', '83149366fc5953c4bdf787b5f8c03b42.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-09', 1, '', '', '2022-12-08 13:17:30', '2022-12-09 10:56:25'),
(2485, 'wmCmITKVQysZ76UZBIPrkNxfJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mere existence of Arbitration Clause does not bar jurisdiction of the Civil Court unless the party exercises his right under Section 8 of the A & C Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Venkataraya S Nayak Vs D Vijaygopal Mallya.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R.S.A. 1035 of 2007 decided on 25 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Umesh M Adiga.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. To dispose of this appeal, brief facts of the case of both\r\nthe parties before the trial Court were as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> It was the case of the plaintiff that he has been running\r\nthe business of “Glow Sign Boards and Labels”. The\r\ndefendant joined the said business as working partner\r\nwithout any investment and a formal partnership deed was\r\nentered into between the parties on 01.12.1998. Entire\r\ncapital of Rs.2,50,000/- has been contributed by the plaintiff\r\nand 30% of the profit of the business was agreed to be\r\nshared with the defendant and 70% of the profit has to be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">paid to the plaintiff. The said partnership business was\r\nrunning in the name and style of M/s Vinyl Prints and\r\nDesigns.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Even after entering into partnership and change in the\r\nname of business, it has been run as proprietary concern.\r\nThe role of the defendant was like a servant or subordinate.\r\nIn the place of salary, he has been paid 30% of the profit of\r\nthe business. Therefore, in fact, it was not a partnership\r\nfirm.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Defendant further contended that plaint averments are\r\nfalse. Plaintiff has not issued the notice in accordance with\r\nlaw and the firm should be a necessary party in the suit. He\r\nalso contended that he is partner of the said firm and entitle\r\nfor share of 30% in the profit and loss of the firm. The\r\ndispute could be settled by arbitration. With these reasons\r\nprayed to dismiss the suit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. This appeal was admitted to consider the following\r\nsubstantial questions of law:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1) Whether the Lower Appellate Court is justified in holding\r\nthat partnership deed dated 01.12.1998 cannot be\r\nlooked into as the same is unregistered one?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2) Whether the Lower Appellate Court is justified in holding\r\nthat unregistered partnership deed could be looked into\r\nonly for collateral purpose when the entire suit is based\r\non the said partnership deed dated 01.12.1998?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3) Whether the Lower Appellate Court is justified in holding\r\nthat the partnership deed has been dissolved even when\r\nthe notice is not in consonance with Section-43 of the\r\nsaid Act? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. I have heard the arguments of learned advocate for\r\nboth sides and carefully gone through the records. As rightly\r\npointed out by the learned advocate for appellant, while\r\ndiscussing point No.1 at para no.8 of the impugned\r\njudgment, the learned First Appellate Judge observed that\r\nEx.P1 i.e. Partnership deed is unregistered document. Hence,\r\nit cannot be looked into, to arrive at conclusion that\r\ndefendant was partner of the firm. The said finding of the\r\nlearned First Appellate Judge is misconceived. The learned\r\ntrial judge has not discussed under which provisions of law\r\nthe partnership deed is to be registered. Section 17 of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Registration Act or partnership Act does not compel that the\r\npartnership deed shall be registered. When the registration of\r\nthe partnership deed is not compulsory in accordance with\r\nIndian Registration Act or partnership Act, question of nonadmissibility of Ex.P1 does not arise. In the said findings of\r\nlearned First Appellate Judge is perverse.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. The facts of the present case indicates that Section 69\r\nof Indian Partnership Act is squarely applicable. Plaintiff has\r\nno right to file the suit to claim the relief of the present suit\r\nsince, the partnership was unregistered. Admittedly, the firm\r\nof the unregistered, there cannot be any estoppel against\r\nthe law. Defendant has not taken the said contention in\r\nwritten statement and no issues were framed by the trial\r\ncourt in this regard, cannot be a ground to hold that plaintiff\r\nhas a right to claim the suit. It is a question of law basing on\r\nthe admitted fact. Therefore, as submitted by learned\r\nadvocate for appellant, the suit was not maintainable since\r\nplaintiff had no right to file the suit. On this count also the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">suit was liable to be dismissed. These facts were not\r\nconsidered by the First Appellate Court. Hence finding of the\r\nFirst Appellate Court is erroneous and arbitrary.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. The prayer made in the suit is not sustainable. Plaintiff\r\nbeing a partner of the firm, during continuation of the\r\nbusiness of the firm by issuing notice, dissolved the firm and\r\nimmediately he continued the same business by declaration\r\nthat it was a proprietary concern and prayed to restrain the\r\ndefendant from interfering in the said business. The said\r\nprayer is not tenable as observed by the learned trial judge.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">26. In this case, as per the pleadings, plaintiff sought for\r\nthe relief of declaration and permanent injunction against one\r\nof the partner in respect of business of the firm to continue\r\nthe business of the firm in his individual capacity and also\r\nrestrain defendant from interfering in the said business\r\nwithout settlement of account of the defendant in the firm. </span><span style=\"font-size: 12pt;\">Under these circumstances, Section 69 of the Indian\r\nPartnership Act, also squarely applicable to the facts of the\r\npresent case</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. Learned advocate for appellant relied on the judgment\r\nreported in (2018) 12 SCC 580 in the case of Farooq Vs.\r\nSandhya Antheraper Kurishingal and others. It is true\r\nthat in the above said case, it is held by the Hon’ble Supreme\r\nCourt that suit is not maintainable since there is a specific\r\nbar under Section 69(2) of Indian Partnership Act, 1932. In\r\nthat case, defence was taken by the defendant that suit was\r\nnot maintainable in view of specific bar under Section 69 of\r\nthe Indian Partnership Act. Preliminary issue was framed.\r\nConsidering the same, the Hon’ble Supreme Court held that\r\nrejection of the plaint by the trial Court was proper. In the\r\npresent case, defendant has not taken such contention and\r\nthere was no issue framed by the trial court in this regard.\r\nTherefore, we cannot find fault with either trial Court or First\r\nAppellate Court to hold that they erred in not considering the\r\nSection 69 of the Indian partnership Act, 1932.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. The trial court assessing the pleading, evidence and also\r\ninconsistencies pleaded by the plaintiff, rightly dismissed the\r\nsuit. First Appellate Court without any materials on record\r\nwrongly appreciated the question of fact as well as law and\r\ncame to erroneous finding. First Appellate Court wrongly held\r\nthat Ex.P1 requires compulsory registration and it was not\r\nregistered, therefore, did not looked into to consider the\r\nclaim of the party to the suit.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. Learned trial Judge has presumed that for certain facts\r\nthere is no question of presumption of such facts. Under\r\nthese circumstances, the finding of First Appellate Judge is\r\nerroneous and needs to be interfered by this Court.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. For the above said discussions I answer point Nos.1 to 3\r\nin the affirmative and pass the following:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> Appeal is allowed with cost. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '791e755160a88935cac6df3661bf5092.jpeg', 'c9ef77c4242b1dad8a61507fdd2787b6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-09', 1, '', '', '2022-12-08 13:46:32', '2022-12-09 12:07:40'),
(2486, '8BKHFbIVFTNaS4FfMvfYmmBPo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Law student should not appear as a proxy counsel or counsel in any matter before any court of law, prior to being properly enrolled by a Bar Council and being admitted to the Bar. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shweta Vs GNCTD and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.M.C. 6487 and CRL.M.A. 25286 of 2022 decided on 5 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Anish Dayal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The background facts are that the petitioner, who is a first year Law\r\nstudent, had instructions of an advocate Ms. Chandni (Enrolment No.\r\nD/2596/2016) for appearing in court and taking adjournment in two cases.\r\nWhen she presented herself before the learned Metropolitan Magistrate and\r\nwas asked certain questions regarding the matter, she was silent as she was\r\ninstructed only to take adjournments and was unaware of the case. Besides\r\nit is alleged by the petitioner that she is a Hindi medium student and does\r\nnot have any knowledge of the technical legal terminology and therefore, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">could not comprehend as to what was being queried by the learned\r\nMetropolitan Magistrate. Not receiving a proper response from the\r\npetitioner, the learned Metropolitan Magistrate took her into court custody\r\nand she was later relieved in the evening from the custody of the court. The\r\nlearned Metropolitan Magistrate took cognizance against the petitioner\r\nunder Section 177/179 IPC vide order dated 20th August, 2022.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Further, an FIR was registered against the petitioner on 8th September,\r\n2022 by Honorary Secretary, Dwarka Bar Association on the same issue.\r\nHaving perused the order sheets of proceedings before the learned\r\nMetropolitan Magistrate on 20th August, 2022, it transpires that there was\r\nsome communication gap between the Court and the petitioner and\r\ntherefore, the learned Metropolitan Magistrate deemed it appropriate to\r\nbring it to the notice of the President, Dwarka Bar Association. On enquiry\r\nby the Secretary, Dwarka Bar Association appeared in person in Court and\r\nthe petitioner apprised that she was just a first year Law student. At that\r\npoint one Ms. Anisha also appeared in Court and submitted that the\r\npetitioner was attached to her as an intern and was instructed to appear\r\nbefore the Court and seek dates. Subsequent to further disclosure of facts,\r\nthe learned Metropolitan Magistrate observed that the petitioner was\r\nfurnishing false information and impersonating herself to be a proxy counsel\r\nbefore the Court and therefore, proceeded against her for offence under\r\nSection 177/179 IPC. A perusal of FIR also reveals that the petitioner had\r\nimpersonated as an advocate and appropriate steps to be taken against her\r\nand an FIR was registered against her under Sections 419/209 IPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. From a transcription of proceedings of that date, it seems that the\r\npetitioner was either confused or was unable to handle the situation which\r\npresented before her. It is evident that a law student should not appear as a\r\nproxy counsel or counsel in any matter before any court of law, prior to\r\nbeing properly enrolled by a Bar Council and being admitted to the Bar.\r\n6. The petitioner has also additionally filed an undertaking by way of an\r\naffidavit on the directions of this Court during the course of the day today\r\nthereby undertaking that she “shall never appear before any Court as proxy/\r\ncounsel / an advocate till I have got enrolled with Bar Council” and “I am\r\naccepting my mistake and regretting my mistake for appearing before\r\nlearned Court and this undertaking may also be treated as my unconditional\r\napology to BCI, BCD and all Court Associations”.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Petition is disposed of accordingly. Pending application is also <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">disposed of as infructuous. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e6a061a2a1453911d8dacfbdadd0fbf6.jpeg', 'b2f3a1e688b5013c15cbb8a5c9aa69bf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-09', 1, '', '', '2022-12-08 14:35:42', '2022-12-09 06:29:25');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2487, 'fPYfo5woS9kOj0lmgOagTGq8j', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'An able-bodied husband is bound to maintain his wife. All other issues can be considered only during the trial. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Uday Nayak Vs Anita Nayak.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 22006 of 2022 decided on 24 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner/husband is before this Court calling in question\r\norder dated 28-09-2022 passed by the Principal Judge, Family\r\nCourt, Dakshina Kannada, Mangalore on I.A.No.V in M.C.No.208 of\r\n2021 granting interim maintenance of Rs.30,000/- per month to be\r\npaid to his wife/respondent.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 2. Brief facts that lead the petitioner to this Court in the\r\nsubject petition, as borne out from the pleadings, are as follows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n The petitioner and the respondent got married on 31-12-2018\r\nand have no children from the wedlock. On 11-12-2020 alleging\r\nharassment by the petitioner and his family members the\r\nrespondent registers a crime in Crime No.32 of 2021 for offences\r\npunishable under Sections 498A, 506, 313 and 34 of the IPC.\r\nThereafter, on 22-02-2021, the respondent files a petition under <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 12 of the Protection of Women from Domestic Violence Act,\r\n2005 (‘DV Act’ for short) in Criminal Miscellaneous Case No.32 of\r\n2021 before the Civil Judge and JMFC, Moodbidri wherein\r\nmaintenance is also sought in the petition. Considering the interim\r\napplication seeking maintenance, an order comes to be passed by\r\nthe concerned Court, granting maintenance to the respondent/wife\r\nat Rs.20,000/- per month. Alleging that the order was passed\r\nwithout hearing the husband, the petitioner challenges the said\r\norder before the learned II Additional District & Sessions Judge,\r\nD.K., Mangalore in Criminal Appeal No.70 of 2021 which comes to\r\nbe dismissed. Aggrieved by both the proceedings, the petitioner\r\nprefers a petition before this Court invoking Section 482 of the\r\nCr.P.C. in Criminal Petition No.8186 of 2021 and this Court by its\r\norder dated 01-02-2022 grants an interim order of stay of all\r\nfurther proceedings in Criminal Miscellaneous Case No.32 of 2021\r\nfiled invoking the provisions of the DV Act.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. During the pendency of these proceedings, the petitioner\r\nfiles a petition under Section 13(1)(i-a) of the Hindu Marriage Act,\r\n1955 seeking dissolution of marriage in M.C.No.208 of 2021. After <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the respondent entered appearance she sought permanent alimony\r\nor maintenance to be granted. The concerned Court answering an\r\napplication filed under Section 24 of the Hindu Marriage Act, 1955\r\nallows the claim of the wife by granting maintenance of Rs.30,000/-\r\nper month from the date of filing the application i.e., 02-09-2021\r\nwhich shall be inclusive of the maintenance awarded by the\r\nconcerned Court in Criminal Miscellaneous Case No.32 of 2021,\r\nwherein the respondent had invoked the provisions of the DV Act.\r\nIt is this order that drives the petitioner to this Court in the subject\r\npetition.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The afore-narrated facts are not in dispute. The parties to\r\nthe lis are before the Court in two proceedings one instituted by the\r\nwife under the provisions of the DV Act and the other by the\r\nhusband under Section 13 of the Hindu Marriage Act seeking\r\ndissolution of marriage. The other proceeding on the criminal side\r\nthat is instituted by the wife is for offences punishable under\r\nSections 498A, 506, 313 and 34 of the IPC. This Court has granted\r\nan interim order of stay of the proceedings under the DV Act in\r\nterms of the order dated 01-02-2022 and the proceedings instituted\r\nunder the provisions of the IPC. Insofar as proceedings instituted\r\nfor offences punishable under the IPC is concerned, this Court has\r\nonly granted stay qua the family members and not the husband in\r\nterms of its order dated 12-04-2022. The husband therein is the\r\npetitioner in the subject case.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The issue with regard to plurality of proceedings qua\r\nmaintenance need not detain this Court for long or delve deep in to\r\nthe matter. The Apex Court in the case of RAJNESH1\r\n(supra) has\r\nclearly observed that in the light of overlapping of jurisdictions, the\r\ngrant of maintenance under Section 20(1)(d) of the DV Act would\r\nbe in addition to the maintenance granted under Section 125 of the\r\nCr.P.C. and also further holds that there is no bar to seek\r\nmaintenance both under the DV Act and under Section 125 of the\r\nCr.P.C. or under the Hindu Marriage Act or even under the Hindu <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Adoptions and Maintenance Act, 1956. The only rider would be that\r\nthe amount would not overlap and it would be inclusive of\r\nmaintenance under each jurisdiction and not exclusive. Therefore,\r\nthere is no additional payment or overlapping payment made.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">10. The learned senior counsel has also submitted with regard\r\nto fact that the petitioner has lost his job and is not in a position to\r\nmaintain his wife that too for a sum of Rs.30,000/-. The Apex Court\r\nin the case of RAJNESH (supra) has laid down guidelines for grant\r\nof maintenance by Courts answering applications seeking such\r\nmaintenance. In terms of the guidelines, assets and liabilities of\r\nboth the husband and the wife are to be placed for perusal before\r\nthe Court before whom such proceedings are pending. A perusal at\r\nthe order impugned in the petition would clearly indicate that\r\nliability statements were placed before the concerned Court and the\r\nincome of the husband is noticed and the fact that the wife has\r\nresigned her job and is residing in Mangalore is also noticed in\r\naddition to noticing that the petitioner continues to work in a\r\nparticular Company at Bangalore. On noticing all these facts\r\nmaintenance is awarded. The ground that the wife has deliberately\r\nresigned the job after initiation of divorce proceedings only to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">harass the petitioner is also considered, as that would be a matter\r\nof evidence and what is granted is interim maintenance.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11..... </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Apex Court holds that if the husband is an able bodied man, it\r\nis his duty to maintain his wife. If the judgment rendered by the\r\nApex Court in the case of ANJU GARG (supra) is considered qua\r\nthe facts obtaining in the case at hand, the petitioner continues to\r\nwork is what is not in dispute as is observed in the impugned order.\r\nTherefore, it becomes necessary for the petitioner to maintain his\r\nwife, by paying interim maintenance. No fault can be found with the\r\norder passed by the concerned Court granting such maintenance to\r\nthe wife.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n 12. In the result, the petition lacking in merits stands\r\ndismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1721ae98ce6fe2fbbf8298aeb11aa065.jpeg', 'a7be43e0c87d9eff4cdf3aeab9b73748.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-09', 1, '', '', '2022-12-08 15:04:50', '2022-12-09 03:20:00'),
(2489, 'o8ZoD9s7BSxk7sw2zJ0TMVqRw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Failure to conclude criminal trial expeditiously cannot be a ground to grant bail when the involvement in serious offences is made out. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jiya Isubu Shiyad Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 10549 of 2022 decided on 7 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This is a successive bail petition is filed under Section 439\r\nof Cr.P.C. praying this Court to enlarge the petitioner-accused\r\nNo.2 on bail in respect of Crime No. 63/2017 of Ullal Police\r\nStation, Mangaluru City for the offences punishable under\r\nSections 120B, 143, 144, 147, 148, 341, 504, 506, 302, 307,\r\n326 R/W 149 of IPC and Sections 3, 25(1)(1B), 7, 25(1)(1A) and\r\n27(3) of Arms Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">17. Having considered the reasons assigned by the Trial\r\nCourt also the grounds which have been urged before the Court,\r\nthe fact that he was the part of the unlawful assembly and he\r\nhimself has driven the car in which the other assailants also\r\ncame along with deadly weapons like pistol as well as talwar and\r\ninflicted 28 injuries out of that injury 26 is pistol injury and no\r\ndoubt, report is received that the weapon which was seized from\r\nhim was not used but the fact that CW1 to 4 are the eyewitnesses who were present at the time of the incident and he\r\nbeing the part of the unlawful assembly and in view of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">judgment of the Apex Court in the case of KUMER SINGH\r\nreferred supra, in paragraph 14 the Apex Court observed that it\r\nis to be required to note that all the accused are charged for the\r\noffences punishable under Sections 302, 307 read with Section\r\n149 of IPC and in this case also invoked the offences punishable\r\nunder Sections 302, 307, 326 r/w Section 149 of IPC and they\r\nare also part of the unlawful assembly and invoked the offences\r\npunishable under Sections 143, 147, 148 and also the offences\r\npunishable under Sections 120B and allegation that all of them\r\nhave conspired with each other and made a plan to cause the\r\naccident by using the tipper lorry and immediately this petitioner\r\nalighted from the car along with other accused with deadly\r\nweapons and no doubt, the counsel appearing for the petitioner\r\nalso brought to notice of this Court that as per the PM report\r\nmultiple injuries are caused with the stab and chop wounds and\r\nthe accused 3 and 4 who accompanied with this petitioner were\r\nholding these weapons, inflicted injuries and when all of them\r\nhave shared the common object in furtherance of common\r\nobject and eliminated the deceased by chasing when he tried to\r\nescape from the spot. The very contention that no material is </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">collected against this petitioner cannot be accepted when he was\r\npart of the unlawful assembly and accompanied with deadly\r\nweapons and assailants. Hence I do not find any merit in the\r\nsuccessive bail petition to enlarge the petitioner on bail.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The successive bail petition filed by the\r\npetitioner under Section 439 of Cr.P.C is rejected. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8d96827064aa1c050874a436f1b79957.JPG', 'c35c1361090a7c05ff580bb8325ec63f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-12', 1, '', '', '2022-12-09 12:41:51', '2022-12-12 12:56:13'),
(2490, 'qJ8kXiZs75GyRN022MvAMpBrM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Penalty under Section 31 of the D.V Act is attracted only for breach of protection orders under Section 18 and not to maintenance orders under Section 20. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Suneesh Vs State of Kerala and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.MC 5871 of 2022 decided on 5 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A Badharudeen.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The question arises for consideration is, <i>whether non\r\npayment of maintenance allowance in refusal to pay the same\r\nbased on a monetary relief granted under Section 20 of the\r\nProtection of Women from Domestic Violence Act, 2005\r\n(hereinafter referred to as `D.V Act\' for convenience) would\r\namount to breach of protection order and for which, penal\r\nproceedings under Section 31 of the D.V Act can be invoked? </i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The crux of the dispute is that in an application filed\r\nunder Section 12 of the D.V Act filed by the 2nd respondent, who is\r\nthe mother of the petitioner herein, the learned Magistrate Court\r\ndirected the petitioner herein to pay Rs.25,000/- as monthly\r\nmaintenance to the 2nd respondent herein and her daughter, to meet\r\ntheir expenses. Though the petitioner herein paid the same for a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">period of 3 months, thereafter he defaulted the payment. On that\r\npremise, acting on the complaint of the 2nd respondent alleging\r\ncommission of offence punishable under Section 31 of the D.V Act\r\nCrime No.66/2018 was registered. On completion of investigation,\r\nfinal report was filed. Subsequently, the learned Magistrate took\r\ncognizance for the said offence and the matter has been pending as\r\nC.C.1483/2019.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Whereas in Surya Prakash v. Rachna\'s case (supra), a\r\nDivision Bench of the Madhya Pradesh High Court considered the\r\nterm `economic abuse\' defined under Section 3(iv) of the D.V Act\r\nand it was held that the same includes deprivation of all or any\r\neconomic or financial resources, payment of rental related to\r\nshared household and maintenance. It was further held that grant\r\nof monetary relief under Section 20 does not exclude the amount of\r\nmaintenance under Section 18 of the D.V Act as part of affirmative\r\norder in respect of the domestic violence as defined under Section <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3 of the D.V Act. Therefore, it was found that non payment of\r\nmaintenance is a breach of protection order and hence Section 31\r\nof the D.V Act can be invoked.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. Here, the legislature vigilantly included `protection\r\norders\' alone under Section 31 of the D.V Act after specifically\r\ncategorising the orders which would be given under the head\r\n`protection orders\' under Section 18 of the D.V Act. Another very\r\npertinent aspect to be noted in this context is the implication and\r\nramification of widening the scope of Section 31. Say for instance,\r\na person when ordered to pay a specified amount on every month <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as maintenance or interim maintenance and under Section 20(4) of\r\nthe D.V Act, if he fails to pay the same on completion of every\r\nmonth for justified/unavoidable reasons, is it fair to hold that the\r\nsaid failure and omission would be penalised under Section 31 of\r\nthe D.V Act. Similar is the position inasmuch as other orders\r\nexcluding the order under Section 18. Moreover, if such a wide\r\ninterpretation is given, the Courts will be over-flooded with cases\r\nunder Section 31 of the D.V Act and the said situation cannot said\r\nto have intended by the legislature. Therefore, the Court cannot\r\noverturn the legislative wisdom to hold that a `monetary relief\' such\r\nas payment of maintenance, if disobeyed, the same also would\r\nattract significant penalty under Section 31 of the D.V Act, treating\r\nthe same as breach of `protection order\' or `interim protection\r\norder\'. Therefore, it is held that the penalty provided under Section\r\n31 of the D.V Act would attract only for breach of protection orders </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">passed under Section 18 of the D.V Act and the same would not\r\napply to maintenance orders under Section 20 of the Act. Holding\r\nso, prayer in this petition is liable to be allowed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Therefore, this petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b28595a8af8b2512253b3b875d76c792.jpeg', 'd9d83e05093a11241d0e528523dc39c2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-12', 1, '', '', '2022-12-09 15:22:09', '2022-12-12 07:00:45'),
(2491, 'QFd2LkHBjJQqLSuwRP9W1M6tO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\"State has no power to regulate fee structure in Private Schools under the Karnataka Education Act\". Landmark Judgement from the Karnataka High Court.', '<p><b>KARNATAKA UNAIDED SCHOOLS\r\nMANAGEMENTS\' ASSOCIATION vs STATE OF KARNATAKA&nbsp;&nbsp;<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">W.P. No.27432 OF 1995 (EDN) and connected matters decided on 1 December 2022<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice Alok Aradhe and Justice Vishwajit Shetty.</span></b></p><p><b>The petitioner is an Association of private\r\nunaided schools in the State of Karnataka\r\n(hereinafter referred to as \'Association\'). The\r\nmembers of the Association administer 2500 unaided\r\neducational institutions in the State of Karnataka.\r\nThe petitioner had assailed the validity of Sections\r\n3(2)(a to h), 7(1)(a to i), 38, 41(2)(b)(iii), 41(5), 42, 43,\r\n44, 48, 67, 128 and 145 of the Karnataka Education\r\nAct, 1983 (hereinafter referred to as \'the 1983 Act\') on\r\nthe ground that the said provisions violate the\r\nfundamental rights guaranteed to the petitioner\r\nunder Article 14, 19(1)(c) and (g), 29(1) and 30 of the\r\nConstitution of India.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p><b>22. Thus, it is evident that right to establish and\r\nadminister an educational institution comprises right\r\nto admit students, to set up a reasonable fee\r\nstructure, to appoint staff teaching and non-teaching\r\netc. It has further been held that reservation of seats,\r\nfixation of quotas is an unreasonable restriction in the\r\ncontext of minority and non-minority\'s right to\r\nestablish and administer educational institutions.&nbsp;</b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Section 41(3) of the 1983 Act.\r\n Section 41 of the 1983 Act reads as under:</b></span></p><p><i><b>41(3) While recruiting the teaching and nonteaching employees, every recognised\r\neducational institution shall comply with the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">orders issued by the State Government from\r\ntime to time for reservation of posts to\r\nScheduled Castes, Scheduled Tribes and\r\nother backward classes of citizens and the\r\nweaker sections of people.</span></b></i></p><p><b>The unaided educational institution have a right\r\nto appoint staff - teaching and non-teaching in view of\r\nlaw laid down by Supreme Court in T.M.A.PAI\r\nFOUNDATION, supra. Section 41(3) of the 1983 Act\r\ncurtails the aforesaid right. Thus, applying the\r\nprinciple of severability, it is held that Section 41(3) of\r\nthe 1983 Act does apply to private unaided schools.</b></p><p><i><b>Section 7(1)(f) : the rates at which tuition\r\nand other fees, building fund or other\r\namount, by whatever name called, may be\r\ncharged from students or on behalf of\r\nstudents;<br>Rule 4. Fee in unaided private educational\r\ninstitutions. -&nbsp; .....</b></i></p><p><b>Thus, in view of well settled legal position referred\r\nto surpa in paragraphs 50 and 61 of the T.M.A.PAI\r\nFOUNDATION, supra, it is held that provisions of said\r\nSection do not apply to unaided private educational&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">institutions. Rule 4 of the 1999 Rules permits the\r\nunaided private educational institutions to fix its fee\r\nstructure. Therefore, Rule 4 does not suffer from any\r\ninfirmity. The same is held to be ultra vires.</span></b></p><p><i><b>Rule 10(3)(c)(ii): in the case of a recognised\r\nunaided educational institution upto a\r\nmaximum of Rs.600/- per year.\r\n</b></i></p><p><b> In view of law laid in T.M.A.PAI FOUNDATION,\r\nsupra, in paragraphs 50 and 61 referred to supra, the\r\naforesaid Rule cannot be sustained in the eye of law.\r\nThe same is therefore struck down.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p><i><b>Rule 4(4): In addition to the tuition fee, a\r\nprivate unaided educational institution may\r\ncharge a term fee under sub-clause (ii) of\r\nclause (a) of sub-rule (3) of Rule 10, not\r\nexceeding ten per cent of the tuition fee. Such\r\nterm fee will cover all co-curricular activities,\r\nexamination fee, lab fee, sports fee, culture\r\nevent fee, fee for activities complementary to\r\nregular teaching and any other activity\r\nspecified by notification.</b></i></p><p><b>Applying the principles laid down by a Three\r\nJudge Bench of the Supreme Court in SOCIETY FOR\r\nUNAIDED PRIVATE SCHOOLS OF RAJASTHAN,\r\nsupra, the aforesaid provisions are held to be not\r\napplicable in respect of private unaided schools.\r\nPrivate unaided educational institutions are entitled to\r\nfix their fee structure which may be reasonable. Rule\r\n4(4) of the 1999 Rules is struck down as the same is\r\nviolative of the law declared by the Supreme Court in\r\nT.M.A.PAI FOUNDATION.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p><i><b>38(1)(a): Notwithstanding anything\r\ncontained in section 36,- (a) educational\r\ninstitutions established and run by the State\r\nGovernment or by any authority sponsored\r\nby the Central or State Government or by a\r\nlocal authority and approved by the\r\ncompetent authority in accordance with such&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">conditions as may be prescribed shall be\r\ndeemed to be educational institutions\r\nrecognised under this Act;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;</span></b></i></p><p><b>The provisions of Article 14 are attracted if equals\r\nare sought to be treated as unequal. A private\r\neducational institution cannot claim parity with an\r\ninstitution run by a Central or State Government or a\r\nlocal authority. Therefore, the contention that Section\r\n38(1)(a) of the Act is violative of Article 14 is\r\nmisconceived as Section 38(1)(a) creates a deeming\r\nprovision in respect of recognition under the 1983 Act\r\nin relation to educational institution run by the State\r\nGovernment or by a local authority. The challenge\r\ntherefore to Section 38(1)(a) of the 1983 Act is repelled.</b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rule 3(b) of the 2005 Rules provides that salary\r\nof employees of educational institutions namely\r\nunaided Primary, Secondary and Pre-University\r\neducational institutions shall not be less than\r\nminimum of the basic of the scale of pay of the\r\ncorresponding post held by an employee in a\r\nGovernment educational institution incorporates the\r\nsalutary principle of equal pay for equal work which\r\nis in consonance with Article 39(d) of the\r\nConstitution of India. Therefore, the same cannot be\r\nsaid to be violative of the right of the management of\r\nprivate unaided institutions to administer the&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">institution. Therefore, it is held that challenge to\r\nRule 3(b) of the 2005 Rules is misconceived.\r\n</span></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>28. In view of preceding analysis, it is held as\r\nfollows:\r\n</b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(i) Section 5, Section 7(5)(b), Section 7(1)(e) and\r\nSection 38(1)(a) of the Karnataka Education Act,\r\n1983, Rule 18(2), 18(3) and Rule 19(3) of Karnataka\r\nEducational Institution (Classification, Regulation\r\nand Prescription of Curricula etc.) Rules, 1995 and\r\nRule 4 of the Karnataka Educational Institutions\r\n(Regulation of Certain Fees and Donations) Rules,\r\n1999, are ultra vires (<i>SIC intra vires)</i>.\r\n</b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(ii) Sections 7(1)(f) and 41(3) of the Karnataka\r\nEducation Act, 1983 does not apply to private\r\neducational institutions.\r\n</b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(iii) Rule 10(3)(c)(ii) and Rule 10(3)(a) of\r\nKarnataka Educational Institution (Classification,\r\nRegulation and Prescription of Curricula etc.) Rules, \r\n77\r\n1995 and Rule 4(4) of the Karnataka Educational\r\nInstitutions (Regulation of Certain Fees and\r\nDonations) Rules, 1999 insofar as it pertain to\r\nprivate unaided educational institutions are struck\r\ndown.\r\n</b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(iv) Rule 3(b) of the Karnataka Educational\r\nInstitutions (Certain Terms and Conditions of Service\r\nof Employees in Private Unaided Primary and\r\nSecondary and Pre-University Educational\r\nInstitutions, Rules 2005 is struck down.\r\n</b></span></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the result, the writ petitions are disposed of\r\nin terms indicated above.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;</span></b></p>', '1b8a8ba511048c6901ad8102ccde7e10.jpeg', '2d36a8fbe18d542ea071b459ba0db47f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-10', 1, '', '', '2022-12-10 12:45:26', '2022-12-10 13:01:48'),
(2492, 'SHJ62TCdEAKfrNPzvjOQ5xl4q', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\"State has no power to direct reservation in employment in favour of SC, ST and OBCs in Private Schools under the Karnataka Education Act.\" Landmark Judgement from the Karnataka High Court.', '<p><span style=\"font-weight: bolder;\">KARNATAKA UNAIDED SCHOOLS MANAGEMENTS\' ASSOCIATION vs STATE OF KARNATAKA  <br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">W.P. No.27432 OF 1995 (EDN) and connected matters decided on 1 December 2022<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice Alok Aradhe and Justice Vishwajit Shetty.</span></span></p><p><span style=\"font-weight: bolder;\">The petitioner is an Association of private unaided schools in the State of Karnataka (hereinafter referred to as \'Association\'). The members of the Association administer 2500 unaided educational institutions in the State of Karnataka. The petitioner had assailed the validity of Sections 3(2)(a to h), 7(1)(a to i), 38, 41(2)(b)(iii), 41(5), 42, 43, 44, 48, 67, 128 and 145 of the Karnataka Education Act, 1983 (hereinafter referred to as \'the 1983 Act\') on the ground that the said provisions violate the fundamental rights guaranteed to the petitioner under Article 14, 19(1)(c) and (g), 29(1) and 30 of the Constitution of India. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p><span style=\"font-weight: bolder;\">22. Thus, it is evident that right to establish and administer an educational institution comprises right to admit students, to set up a reasonable fee structure, to appoint staff teaching and non-teaching etc. It has further been held that reservation of seats, fixation of quotas is an unreasonable restriction in the context of minority and non-minority\'s right to establish and administer educational institutions. </span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">Section 41(3) of the 1983 Act. Section 41 of the 1983 Act reads as under:</span></span></p><p><i><span style=\"font-weight: bolder;\">41(3) While recruiting the teaching and nonteaching employees, every recognised educational institution shall comply with the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">orders issued by the State Government from time to time for reservation of posts to Scheduled Castes, Scheduled Tribes and other backward classes of citizens and the weaker sections of people.</span></span></i></p><p><span style=\"font-weight: bolder;\">The unaided educational institution have a right to appoint staff - teaching and non-teaching in view of law laid down by Supreme Court in T.M.A.PAI FOUNDATION, supra. Section 41(3) of the 1983 Act curtails the aforesaid right. Thus, applying the principle of severability, it is held that Section 41(3) of the 1983 Act does apply to private unaided schools.</span></p><p><i><span style=\"font-weight: bolder;\">Section 7(1)(f) : the rates at which tuition and other fees, building fund or other amount, by whatever name called, may be charged from students or on behalf of students;<br>Rule 4. Fee in unaided private educational institutions. -  .....</span></i></p><p><span style=\"font-weight: bolder;\">Thus, in view of well settled legal position referred to surpa in paragraphs 50 and 61 of the T.M.A.PAI FOUNDATION, supra, it is held that provisions of said Section do not apply to unaided private educational <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">institutions. Rule 4 of the 1999 Rules permits the unaided private educational institutions to fix its fee structure. Therefore, Rule 4 does not suffer from any infirmity. The same is held to be ultra vires.</span></span></p><p><i><span style=\"font-weight: bolder;\">Rule 10(3)(c)(ii): in the case of a recognised unaided educational institution upto a maximum of Rs.600/- per year.</span></i></p><p><span style=\"font-weight: bolder;\">In view of law laid in T.M.A.PAI FOUNDATION, supra, in paragraphs 50 and 61 referred to supra, the aforesaid Rule cannot be sustained in the eye of law. The same is therefore struck down.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p><i><span style=\"font-weight: bolder;\">Rule 4(4): In addition to the tuition fee, a private unaided educational institution may charge a term fee under sub-clause (ii) of clause (a) of sub-rule (3) of Rule 10, not exceeding ten per cent of the tuition fee. Such term fee will cover all co-curricular activities, examination fee, lab fee, sports fee, culture event fee, fee for activities complementary to regular teaching and any other activity specified by notification.</span></i></p><p><span style=\"font-weight: bolder;\">Applying the principles laid down by a Three Judge Bench of the Supreme Court in SOCIETY FOR UNAIDED PRIVATE SCHOOLS OF RAJASTHAN, supra, the aforesaid provisions are held to be not applicable in respect of private unaided schools. Private unaided educational institutions are entitled to fix their fee structure which may be reasonable. Rule 4(4) of the 1999 Rules is struck down as the same is violative of the law declared by the Supreme Court in T.M.A.PAI FOUNDATION.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p><i><span style=\"font-weight: bolder;\">38(1)(a): Notwithstanding anything contained in section 36,- (a) educational institutions established and run by the State Government or by any authority sponsored by the Central or State Government or by a local authority and approved by the competent authority in accordance with such <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">conditions as may be prescribed shall be deemed to be educational institutions recognised under this Act;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> </span></span></i></p><p><span style=\"font-weight: bolder;\">The provisions of Article 14 are attracted if equals are sought to be treated as unequal. A private educational institution cannot claim parity with an institution run by a Central or State Government or a local authority. Therefore, the contention that Section 38(1)(a) of the Act is violative of Article 14 is misconceived as Section 38(1)(a) creates a deeming provision in respect of recognition under the 1983 Act in relation to educational institution run by the State Government or by a local authority. The challenge therefore to Section 38(1)(a) of the 1983 Act is repelled.</span></p><p><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rule 3(b) of the 2005 Rules provides that salary of employees of educational institutions namely unaided Primary, Secondary and Pre-University educational institutions shall not be less than minimum of the basic of the scale of pay of the corresponding post held by an employee in a Government educational institution incorporates the salutary principle of equal pay for equal work which is in consonance with Article 39(d) of the Constitution of India. Therefore, the same cannot be said to be violative of the right of the management of private unaided institutions to administer the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">institution. Therefore, it is held that challenge to Rule 3(b) of the 2005 Rules is misconceived.</span></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">28. In view of preceding analysis, it is held as follows:</span></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">(i) Section 5, Section 7(5)(b), Section 7(1)(e) and Section 38(1)(a) of the Karnataka Education Act, 1983, Rule 18(2), 18(3) and Rule 19(3) of Karnataka Educational Institution (Classification, Regulation and Prescription of Curricula etc.) Rules, 1995 and Rule 4 of the Karnataka Educational Institutions (Regulation of Certain Fees and Donations) Rules, 1999, are ultra vires (<i>SIC intra vires)</i>.</span></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">(ii) Sections 7(1)(f) and 41(3) of the Karnataka Education Act, 1983 does not apply to private educational institutions.</span></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">(iii) Rule 10(3)(c)(ii) and Rule 10(3)(a) of Karnataka Educational Institution (Classification, Regulation and Prescription of Curricula etc.) Rules, 77 1995 and Rule 4(4) of the Karnataka Educational Institutions (Regulation of Certain Fees and Donations) Rules, 1999 insofar as it pertain to private unaided educational institutions are struck down.</span></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">(iv) Rule 3(b) of the Karnataka Educational Institutions (Certain Terms and Conditions of Service of Employees in Private Unaided Primary and Secondary and Pre-University Educational Institutions, Rules 2005 is struck down.</span></span></p><p><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the result, the writ petitions are disposed of in terms indicated above.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> </span></span></p>', '201399d2f66989e03a7464f0a818f381.jpeg', 'ec70bd3fa6332461da3727698eb2a4d1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-12', 1, '', '', '2022-12-10 13:18:22', '2022-12-12 09:02:52');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2496, 'Jy9Q9Xy7XVDUK3eJxfAHnaVQL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sale of immovable property cannot be invalidated by a subsequent declaration notifying the property as Wakf property. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sayed Idrus Darga Trust and others Vs Dattatraya Hanamant Bidikar and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 68084 of 2011 decided on 21 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The plaintiffs (hereinafter referred to as “the\r\nTrust”) contended that the suit property bearing CTS\r\nNo.1039, originally stood in the name of the Trust and was\r\nalso registered under the Bombay Public Trust Act (for\r\nShort “the BPT Act”). It was stated that the name of the\r\nTrust was recorded in the Property Card maintained in the\r\nCity Survey Office, Belagavi and by virtue of the\r\nenactment of the Wakf Act, the property which had been </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">registered under the BPT Act, were deemed to be\r\nregistered under the Wakf Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. This suit was contested by the defendants.\r\nDefendant Nos.2 and 3 contended that in the year 1952,\r\nSmt. Shahajadbi wife of Sayed Karimsab Sampgaonkar,\r\nhad leased the property permanently and Mohammad\r\nIssaq Abdul Rehman Angolkar had sold the property to\r\none Vinayak Gajananrao Deshpande in the year 1953 and\r\nthe said Vinayak Gajananrao Deshpande had sold his\r\nrights to Shri Amirabi Gouskhan Desai in the year 1958\r\nand the said Shri Mohammadkhan Gouskhan Desai had\r\nsold the property in favour of defendant Nos.1 to 3 in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1980 and their deceased-brother and ever since they were\r\nin actual possession.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. The suit was subsequently transferred to the\r\nWakf Tribunal and the Wakf Tribunal by the impugned\r\norder has proceeded to conduct a trial and has ultimately\r\ndismissed the suit and hence, the Trust is before this\r\nCourt by way of this writ petition.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. It is to be stated here at the very outset, that\r\nthe initial alienation of the property in question was made\r\nway back in 1952 and this transaction was followed by two\r\ntransactions in year 1953 and 1958. Admittedly, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">notification declaring it to be a Wakf property was made in\r\nthe year 1979 and even before this notification, the\r\nproperty was sold and hence the question of prior\r\npermission would not arise. However, since the Trust\r\nclaims that the property is a Wakf property, this issue is\r\nalso examined.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. A reading of this Corrigendum indicates that\r\nthis was done on the basis of the communication of the\r\nAdministrator and this Corrigendum has in fact been\r\npublished after the suit of the Wakf Board had been\r\ndecided against it by the Tribunal. Since the Corrigendum\r\nhas been issued after the claim of the Wakf Board and the\r\nCommittee had been dismissed, it cannot be of any\r\nconsequence as this Corrigendum has been issued\r\nbasically to get over the fact that in the notification of the\r\nyear 1979, CTS No.1039 was not mentioned.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. It is also to be mentioned here that a\r\nNotification of the year 1979 cannot be corrected by way\r\nof a Corrigendum after a period of 36 years. Since the\r\nGazette Notification did not contain CTS No.1039, in law,\r\nthe Wakf Board cannot contend that CTS No.1039 was a\r\nnotified Wakf. Further, since the Trust did not even plead\r\nbefore the Trial Court that CTS No.1039 had been carved\r\nout of Sy.No.914, any argument in this writ petition that it\r\ndid form a part of Sy.No.914 cannot also be entertained.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. The Tribunal on consideration of the evidence\r\nhas recorded a finding that there were serious\r\ndiscrepancies insofar as the measurement of CTS\r\nNo.1039. The Tribunal, on assessment of the evidence,\r\nhas noticed that the extent of Sy.Nos.913 & 914 had a\r\ndifferent area of measurement as compared to the suit\r\nschedule property and the certified copy of entire property\r\nextract had also stated that the previous R.S. number was\r\nkept blank by stating “open” and therefore, it could not be\r\nheld that the property in question was a Wakf property\r\nand the sale deed could not be cancelled.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n28. As already stated above, since the Gazette\r\nNotification did not specify that the property bearing CTS\r\nNo.1039 was a wakf property and since the Trust did not\r\neven take up the plea that the property bearing CTS\r\nNo.1039 was a part of Sy.No.914 in its plaint, this writ\r\npetition does not deserve acceptance. Further, having\r\nregard to fact that the property in question was sold in\r\n1952 for the first time and nearly 27 years before the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">gazette notification was issued in 1979, I am of the view\r\nthat the finding recorded by the Tribunal that the property\r\nin question was not a Wakf property, on the consideration\r\nof the plea put forth by the petitioners and the evidence\r\nproduced by them, is just and proper and does not justify\r\ninterference under Articles 226 & 227 of the Constitution\r\nof India.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>The Writ Petition is therefore dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fe38e0943f2e06b80ffd808569628aa9.JPG', '8e7f9bbe3025bb6d3267fbd38ea9eb33.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-13', 1, '', '', '2022-12-12 14:57:40', '2022-12-13 03:21:36'),
(2493, '4IT8pLZpBiElvz2R31uxGXDPl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Amend Hindu Succession Act to give parity to female tribal with male tribal in intestate succession. Supreme Court directs the Central Government. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kamla Neti (Dead) through LRs Vs The Special Land Acquisition Officer and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6901 of 2022 decided on 9 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice Krishna Murari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The dispute is with respect to the apportionment of the amount of compensation with respect to the land acquired. The land originally stood recorded in the name of late Satyananda Negi a common ancestor of the appellant and the other coparceners. The said Satyananada died leaving behind his two sons namely Chakradhar and Gajadhar. Chakradhar died leaving behind his four sons namely Chintamani, Parakhita, Basudev and Kulamani and one daughter Kamla (the appellant herein). Similarly, Gajadhar died leaving behind his two daughters namely Kumari and Kumudini. With respect to the land acquired, Khasra No.81, Mouza Kopsingha which originally stood recorded in the name of late Satyananda Negi, the amount of compensation was settled at Rs.5,97,35,754/­ in favour of the respondent nos. 2 to 5 herein i.e. Kadamba Negi, Janhabi Negi, Basudev Negi, Lalita Negi and daughters of Gajadhar i.e. Kumari Dhrua and Kumudini Majhi.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.1 At the instance of the appellant claiming to be the daughter of Chakradhar and claiming 1/5th share in the amount of compensation a reference was made to the Reference Court under Section 30 of the Land Acquisition Act. The Reference Court – the learned Senior Civil Judge, Sundargarh rejected the claim of the appellant/share of the appellant in the compensation, mainly on the ground that as the parties belong to Scheduled Tribe Community, the provisions of the Hindu Succession Act shall not be applicable and therefore the appellant being a daughter shall not be entitled to the share in the amount of compensation. The order passed by the learned Reference Court denying the share in the amount of compensation has been confirmed by the High Court by the impugned judgment and order. Hence, the present appeal against the impugned judgment and order passed by the High Court.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. A short question which is posed for consideration of this Court is whether the appellant/petitioner being the daughter is entitled to the share in the compensation with respect to the land acquired, on survivorship basis under the provisions of Hindu Succession Act? At the outset, it is required to be noted that the appellant belongs to tribal community and is a member of Scheduled Tribe. As per Section 2(2) of the Hindu Succession Act, the Hindu Succession Act will not be applicable to the members of the Scheduled Tribe. Therefore, as such as rightly observed by the High Court the appellant cannot claim any right of survival under the provisions of the Hindu Succession Act. Therefore, so long as Section 2(2) of the Hindu Succession Act stands and there is no amendment, the parties shall be governed by the provisions of Section 2(2) of the Hindu Succession Act. Therefore, though on equity we may be with the appellant being daughter and more than approximately 70 years have passed after the enactment of the Hindu Succession Act and much water has flown thereafter and though we are prima facie of the opinion that not to grant the benefit of survivorship to the daughter in the property of the father can be said to be bad in law and cannot be justified in the present scenario, unless Section 2(2) of the Hindu Succession Act is amended, the parties being member of the Scheduled Tribe are governed by Section 2(2) of the Hindu Succession Act. It is observed and held by this Court in the case of Mohan Koikal (supra) that when there is a conflict between the law and equity, the law would prevail. Equity can only supplement the law. There is a gap in it but it cannot supplant the law.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6.2 Now so far as the reliance placed upon the decision of this Court in the case of Madhu Kishwar (supra) by the learned counsel for the appellant is concerned, at the outset it is required to be noted that by the majority decision this Court refused to strike down the provisions of Chota Nagpur Tenancy Act, 1908 which provided the succession to property in the male line of heirs and denying the right to Succession to the daughter, on the touchstone of Article 14. However, this Court read into the said provisions and observed and held that the intervening right of female dependents/descendants under Sections 7 and 8 of the Act shall be carved out, by suspending the exclusive right of the male succession till the female dependent/descendent chooses other means of livelihood manifested by abandonment or release of the holding kept for the purpose. This Court by observing so disposed of the writ petition. However, by disposing the writ petition this Court issued direction to the State of Bihar to comprehensively examine the question on the premise of our constitutional ethos and the need voiced to amend the law.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6.4 However, Mr. Justice K. Ramaswamy in his concurrent judgment has further observed and held that the provisions of the Hindu Succession Act and the Indian Succession Act would apply to the Scheduled Tribes, the general principles contained therein being consistent with justice, equity, fairness, justness and good conscience would apply to them. Thereafter it is held that the Scheduled Tribe women would succeed to the estate of their parent, brother, husband, as heirs by intestate succession and inherit the property with equal share with the male heir with absolute rights as per the general principles of the Hindu Succession Act, 1956, as amended and interpreted by this Court. However, it is required to be noted that the same is minority view.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. Under the circumstances in view of Section 2(2) of Hindu Succession Act and the appellant being the member of the Scheduled Tribe and as the female member of the Scheduled Tribe is specifically excluded, the appellant is not entitled to any right of survivorship under the provisions of Hindu Succession Act. No error has been committed by the High Court. The appeal therefore deserves to be dismissed and is accordingly dismissed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd665073cfdf05d044a6cbff461bce0c3.jpeg', '1dc35117443da28b409dc951ad607877.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-12', 1, '', '', '2022-12-11 18:57:16', '2022-12-12 11:06:22'),
(2494, 'qGDWkrXKEkdkSbStLTgzVGWCn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Unborn child has a right under Article 21 of the Constitution of India.” Karnataka High Court while nixing the agreement to adopt unborn child. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shahistha and others Vs The State.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.F.A 4617 of 2022 decided on 30 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B. Veerappa and Justice K.S. Hemalekha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The biological parents, i.e. appellant Nos.3 and 4 and\r\nalleged adoptive parents, i.e. appellant Nos.1 and 2 entered\r\ninto unregistered agreement of an \'unborn child\' in the form of\r\nadoption, jointly filed the present appeal against the judgment\r\nand decree dated 31-5-2022 passed in G & W.C. No.9 of 2021 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">on the file of the Additional Senior Civil Judge, Udupi,\r\ndismissing the petition filed under Sections 7 to 10 and 25 of\r\nthe Guardians and Wards Act, 1890 (for short, \'the Act\').</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Appellant Nos.1 and 2 filed the petition before the\r\ntrial Court under the provisions of Sections 7 to 10 and 25 of\r\nthe G & W Act to grant permission to appoint them as the\r\nadoptive parents and guardians of a minor child, by name\r\nInshu. Appellants Nos.3 and 4 are the biological parents of the\r\nsaid child. The child was born on 26-3-2020. Since appellant\r\nNos.1 and 2 were childless and appellant Nos.3 and 4 were\r\nunable to look after the child due to poverty, appellant Nos.1\r\nand 2 adopted the child. After adoption of the child, appellant\r\nNos.1 and 2 have looked after raised the child for two years as\r\ntheir own daughter with love and affection. The respondentState represented by Legal-cum-Probation Officer, District Child\r\nProtection Unit, Udupi, lodged a complaint against appellant\r\nNos.3 and 4 stating that they have illegally sold the child to\r\nappellant Nos.1 and 2. However, the only mistake committed\r\nby appellant Nos.3 and 4, biological parents, and appellant <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Nos.1 and 2, adoptive parents, is that due to lack of proper\r\nlegal knowledge and guidance, the procedure was not complied\r\nwith. Now, the child is in the custody of the respondents/\r\nappellants 3 & 4. Therefore, appellant Nos.1 and 2 are seeking\r\nto appoint them as adoptive parents of the child.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. In view of the aforesaid rival contentions, the only\r\npoint that would arise for our consideration in the appeal is:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>Whether appellant Nos.1 and 2, adoptive parents,\r\nand appellant Nos.3 and 4, biological parents,\r\nhave made out a case to interfere with the\r\njudgment and decree passed by the trial Court? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. A careful perusal of the agreement entered into\r\nbetween the parties clearly depicts that appellant Nos.1 and 2\r\nbelong to Muslim community and appellant Nos.3 and 4 belong\r\nto Hindu community and thereby, the Mohammedan Law does\r\nnot recognise adoption.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">19. Based on the agreement, appellant Nos.3 and 4 filed\r\nthe petition before the trial Court for custody. In all cases,\r\nwhere a Court is called upon to adjudicate the question as to\r\nwhether permission shall be granted to a pregnant woman for\r\nterminating her pregnancy on a plea of infringement of her\r\nfundamental right to life guaranteed under Article 21 of the\r\nConstitution, the Court has to make a balance between the\r\nrights of the mother and the rights of the unborn. The fact\r\nremains that as on the date of agreement entered into between\r\nthe parties, appellant No.4 was in verge of completing nine </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">months of her pregnancy and thereby, the appellants, both\r\nadoptive parents and biological parents, have violated the\r\nrights of the child guaranteed under the provisions of Article 21\r\nof the Constitution of India. Considering the peculiar facts and\r\ncircumstances of the case, very agreement for adoption on 21-\r\n3-2020 entered between the parties is invalid document and\r\nthe same is not permissible under the principles of\r\nMohammedan Law. As already stated supra, the 3rd\r\nrespondent rightly lodged the complaint to the jurisdictional\r\nPolice and in turn, they registered a case and now it is pending\r\non the file of the Principal Civil Judge and Judicial Magistrate\r\nFirst Class, Karkala. Thereby, we resist to observe anything at\r\nthis stage that it is for the concerned Court to proceed to a\r\nlogical end in accordance with law.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 21. Even under Section 35 of the Juvenile Justice (Care\r\nand Protection of Children) Act, 2015, provides that (1) a\r\nparent or guardian, who for physical, emotional and social\r\nfactors beyond their control, wishes to surrender a child, shall\r\nproduce the child before the Committee; (2) if, after prescribed\r\nprocess of inquiry and counseling, the Committee is satisfied, a</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">surrender deed shall be executed by the parent or guardian, as\r\nthe case may be, before the Committee, and (3) the parents or\r\nguardian who surrendered the child, shall be given two months\r\ntime to reconsider their decision and in the intervening period,\r\nthe Committee shall either allow, after due inquiry, the child to\r\nbe with the parents or guardian under supervision, or place the\r\nchild in a Specialised Adoption Agency, if he or she is below six\r\nyears of age, or a children\'s home if he is above six years.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. When the State Government is providing so many\r\nbenefits for the welfare of the Society, that too, for the people\r\nbelow the poverty and Section 35 of the Juvenile Justice (Care\r\nand Protection of Children) Act, 2015, clearly explains\r\nregarding surrender of the child, the agreement entered into\r\nbetween appellant Nos.1 and 2 and appellant Nos.3 and 4\r\ncannot be sustained.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. For the reasons stated above, the point raised in the\r\npresent appeal is answered in the negative holding that the\r\nappellants have not made out a case to interfere with the\r\njudgment and decree passed by the trial Court.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. The appeal, being devoid of merits, is hereby\r\ndismissed; </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7db0536de5694d6766eea789b5c147f4.jpeg', '45b3db1154ca792983029f9b3cb2e922.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-13', 1, '', '', '2022-12-12 13:01:10', '2022-12-13 08:36:24'),
(2495, 'FBgYQXwzzG37vMiR7ZCvteC6i', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Daughter who has attained majority cannot claim maintenance from her parents under Section 125 Cr.P.C. unless she pleads inability to maintain herself. High Court of Chhattisgarh. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Birendra Kumar Tiwari Vs Neetu Tiwari.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRR 1216 of 2022 decided on 7 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Deepak Kumar Tiwari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Shri Yatharth Singh would submit that respondent is the daughter\r\nof the applicant and she is 24 years old matured girl. He further\r\nsubmits that she is living separately from her parents without any\r\nrhyme or reason and the family members are willing to keep her\r\nwith thems but she is not ready to stay with them. The applicant is\r\nworking as driver and earning Rs.38,020/- per month. However,\r\ndue to personal loan, Rs.14,366/- gets directly deducted from his\r\nsalary. He would further submit that applicant’s wife is suffering\r\nfrom paralysis and including wife he has liability of 3 children in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which one child is going to the college whereas other two are\r\nschool going children. He would also submit that during lockdown\r\nperiod applicant’s daughter came under the influence of one\r\nperson namely Animesh Sinha and since then without any consent\r\nof the parents she is living with him.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Counsel further submits that there is no averment that the\r\nrespondent is suffering from any physical or mental abnormality or\r\ninjury or unable to maintain herself, so she is not entitled to get\r\nmaintenance under Section 125 Cr.P.C. In this regard he would\r\nplace reliance in the matter of Abhilasha Vs. Prakash and others\r\nreported in (2020) AIR SC 4355.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. It is explicit from impugned order that respondent has attained the\r\nmajority and also pursuing B.A. final year. As per Section 125\r\nCr.P.C. to get maintenance daughter has to make out a case that\r\nshe is unable to maintain herself or not attained the majority but in\r\nthe present case, no such averment has been made. So the\r\nrespondent is not entitled to get maintenance under Section 125\r\nCr.P.C. However, Section 20 (3) of the Hindu Adoptions and\r\nMaintenance Act, 1956 recognize rights of maintenance to children\r\nand it is statutory obligation of Hindu to maintain his or her\r\ndaughter, who is unmarried and is unable to maintain herself out of\r\nher own earning of other property.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Therefore, in view of the proposition held in Abhilasha (Supra) the\r\napplication filed by the respondent under Section 125 Cr.P.C\r\nbefore the Family Court is not maintainable. Further, this Court\r\nreserves liberty in favour of the respondent/daughter to take\r\nrecourse to Section 20 (3) of the Hindu Adoptions and\r\nMaintenance Act, 1956, if so advised, for claiming any\r\nmaintenance against her father.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Reserving the aforesaid liberty, this revision is allowed and the\r\nimpugned order is hereby quashed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ca54f2f107c4422aeee2287806babc34.jpeg', 'd3449d105a29b838ecd74071abff1f17.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-13', 1, '', '', '2022-12-12 13:37:16', '2022-12-13 07:00:44'),
(2497, '0uRiX4sfM6sTjT79R7hT449ZM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'N. I. Act. In the case of a proprietorship concern, only the proprietor can be held liable under Section 138 of the Act. No need to array the Firm since the proprietorship concern and the proprietor are one and the same. Punjab and Haryana High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/s Royal Pressing and Component Pvt Ltd and another Vs Bhushan Power and Steel Ltd.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRM-M 30783 of 2017 decided on 1 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Aman Chaudhary.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. By means of the instant petitions, the jurisdiction of this Court\r\nunder Section 482 Cr.P.C. has been invoked seeking quashing of criminal\r\ncomplaint dated 14.07.2016 bearing no. 4801 of 2016 titled as Bhushan\r\nPower and Steel Ltd. vs. Royal Pressing and Component Pvt Ltd. and\r\nanother filed under Section 138 /141 of the Negotiable Instruments Act,\r\n1881 (for short \'the Act\') and consequent summoning order dated\r\n14.07.2016, Annexure P-3.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. Concisely, the facts are that, three cheques dated 02.05.2016,\r\n16.05.2016 and 30.05.2016 issued by Royal Pressing and Components were\r\ndishonoured with remarks “account closed” vide three different memos of\r\neven date 02.06.2016. The impugned complaint came to be filed on\r\n13.7.2016 against the present petitioners. Consequent thereto, summoning </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">order dated 14.07.2016, Annexure P-3, was issued, whereby they were\r\nsummoned.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. Before embarking to delve in the issues for determination in\r\nthe present case, it would be apposite to advert to the chequered factual\r\nmatrix. The admitted facts that emanate are namely; petitioner No.2 is both,\r\na Director of petitioner No.1 company as well as the sole proprietor of the\r\nfirm. The cheques signed by petitioner No.2, as not denied, rather admitted,\r\nwere drawn on an account of the proprietorship firm maintained by him.\r\nInstead of filing a complaint against the firm, as stated in para 3 of the\r\npetition, the same has been filed against petitioner No.1- private limited\r\ncompany. Invoice Mark \'A\', issued by the proprietorship firm has the same\r\naddress as that of petitioner No.1-private limited company where material\r\nwas delivered. The notices were sent to the petitioner no.1 company as well\r\nas petitioner No.2 at the address of the proprietorship concern i.e. “No.436,\r\nShri Developers, Mahuakherea Ganj, Kasipur, Uttrakhand”; there is no\r\ndenial that petitioner no.2 refused to accept the notice, Mark \'B\'; the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">aforesaid makes it evident that undeniably they are all one and the same,\r\ncreated and incorporated by petitioner No.2; furthermore, the three cheques\r\nin question were issued on 02.05.2016, 16.05.2016 and 30.05.2016, while\r\nthe bank account was closed on 19.02.2016, as is evident from Annexure-P4. The main contention raised is that, petitioner No.1 and petitioner No.2\r\nbeing the Director thereof, cannot be prosecuted for the cheque having been\r\ndrawn on account of proprietorship firm, which is not an accused in the\r\ncomplaint. Even petitioner No.2, being a sole proprietor, cannot be\r\nprosecuted without the proprietorship firm, being arrayed as an accused in\r\nthe complaint, in the same manner as the Directors cannot be held\r\nvicariously liable, in a case of a company not having been arrayed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. In light of the aforesaid, a person who is the signatory to the\r\ncheque which is drawn by that person on an account maintained by him and\r\nthe same has been issued for the discharge, in whole or in part, of any debt\r\nor other liability, which has been returned by the bank unpaid, such person\r\ncan be said to have committed an offence.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. It can be adduced from the foregoing, that the presumptions\r\nraised under Section 118(b) and Section 139 of the Act are rebuttable. A\r\nreverse onus is cast on the accused, who has to establish a probable defence\r\non the standard of preponderance of probabilities to prove that either there\r\nwas no legally enforceable debtor other liability.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n21. Accordingly, cheques not having been drawn on the account of\r\npetitioner No.1- private limited company, which is a separate legal entity,\r\nthe complaint qua it, is not maintainable.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. Moving on to the next, with regard to liability in so far as\r\npetitioner No.2, sole proprietor, in absence of the firm being not arrayed as\r\nan accused, is concerned, the exposition of law as settled by Hon\'ble The\r\nSupreme Court in the case of Raghu Lakshminarayanan vs. M/s. Fine\r\nTubes (2007) 5 SCC 103, draws a clear distinction emerging therefrom that\r\nonly the proprietor can be held liable under Section 138 of the Act, as the\r\nproprietorship concern has no separate legal identity, it means and includes\r\nsole proprietor and vice versa. Thus, a sole proprietorship firm would not\r\nfall within the ambit and scope of Section 141 of the Act, the proprietor and\r\nthe firm being one and the same.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. Significantly, as held above, non-arraying the proprietorship\r\nfirm/concern is not an impediment in proceeding against the sole proprietor\r\nunder Section 138 of the Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. The sine qua non for an offence under Section 138 of the Act\r\nis that the cheque must be drawn on an account maintained by the accused\r\nand admittedly, it is the case of the petitioners themselves that in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">present case, cheques were drawn on the account of the proprietorship\r\nconcern on the account on which the cheques in question were drawn on the\r\naccount maintained by the sole proprietor of sole proprietorship firm- M/s\r\nRoyal Pressing and Components, who signed the same. There is no denial\r\nthat he is not the sole proprietor of the aforesaid firm or that he did not sign\r\nthe cheques in question, the legal notice of demand was sent by registered\r\nAD post at the address as mentioned in Annexure P-5, which is the Central\r\nExcise registration certificate as appended and relied upon by the\r\npetitioners themselves and is the same address as that of petitioner No.2,\r\nmentioned in this petition and in the complaint, but was refused to be\r\naccepted by him, which as per Section 27 of the General Clause Act gives\r\nrise to a presumption that service of notice has been effected when it is sent\r\nto the correct address by registered post, unless and until the contrary is\r\nproved by the addressee, held by Hon\'ble The Supreme Court of India in\r\ncase of C.C. Alavi Haji Vs Palapetty Muhd. and another (2007) 6 SCC\r\n555.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. It is the solemn duty of the Courts to separate the grain from\r\nthe chaff. As per Section 142(1)(a) of the Act, the sole criteria being that\r\nthe complaint must be filed by the payee or the holder of the cheque in due\r\ncourse, is duly satisfied in the present case.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. The argument of the counsel for the petitioners raised by\r\napplying the analogy of the cases Manish Kant Aggarwal and P.J. Agro\r\n(supra), that till the proprietorship firm is not arrayed as an accused, the\r\ncomplaint would not lie against petitioner No.2, has no force, in light of it\r\nhaving been elucidately held in the cases of Raghu Lakshminarayan and\r\nM.M. Lal (supra), that Section 141 of the Act does not cover within its\r\nambit, the proprietary concern. It is not a juristic person so as to attract the\r\nconcept of vicarious liability. A sole proprietorship firm has no separate\r\nlegal identity and in fact is a business in the name of the sole proprietor.\r\nThus, in the case of a proprietorship concern, only the proprietor can be\r\nheld liable under Section 138 of the Act as the proprietorship concern and\r\nthe proprietor are one and the same.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30. It is quite apparent from the facts of the case that petitioner\r\nno.2 has tried to avoid his liability of a legally enforceable debt, he having <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not disputed his signatures on the cheques either in the petition or during\r\nthe course of arguments, leading to a presumption as envisaged in Section\r\n118 of the Act legally inferring that the cheque was drawn for consideration\r\non the date which the cheque bears and Section 139 of the Act enjoins on\r\nthe Court to presume that the holder of the cheque received it for the\r\ndischarge of any debt or liability, the burden of which was on the accused\r\nto rebut the said presumption, as held in the cases of Rangappa, K.\r\nBhaskaran and Triyambak S.Hegde (supra).</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. Having implored itself with the abounding pronouncements of\r\nHon\'ble The Supreme Court of India as discussed above enunciating the\r\nproposition as has emanated in the present case and in the overall <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">conspectus of facts and circumstances of the case, this Court is persuaded to\r\nhold that the complaint against petitioner no.2 is maintainable.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">34. As a corollary thereto, the present petition is allowed in part.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '301ec190bb450fbbdc4514f72c281d6e.jpeg', '5cdea123908029070e1db79f099fbfc6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-13', 1, '', '', '2022-12-12 15:34:51', '2022-12-13 11:08:00');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2498, 'P7L8xsJ9Ftn31Xi5EUxzRyYxU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Willful disobedience of the Court order to survey land of the aged/poor farmer. Karnataka High Court imposes cost of Rs. 3 lakhs recoverable from the Tahsildars responsible for the inaction. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Paravathamma and others Vs Munish Moudgil and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Contempt Petition 2019 of 2018 decided on 29 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B. Veerappa and Justice K.S. Hemalekha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. The complainant is a senior citizen, aged 69 years, has\r\nfiled the present contempt petition under the provisions of\r\nSections 11 and 12 of the Contempt of Courts Act, 1971, to\r\ntake action against the accused for willful disobedience of the\r\norder dated 24-7-2014 made in Writ Petition No.9606 of 2014\r\n(KLR-RR/SUR), wherein the learned Single Judge directed the\r\nrespondents or the competent authority to conduct survey,\r\nphodi and durasthi work in respect of land bearing Survey <span style=\"font-size: 12pt;\">No.123/PAI-P4 of Vadesamudra Village, Kasaba Hobli,\r\nPandavapura Taluk, Mandya, in accordance with law, within a\r\nperiod of nine months from the date of receipt of a certified\r\ncopy of the order. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. The order passed by the learned Single Judge as long\r\nback as on 24-7-2014 directing the respondents or the\r\ncompetent authority to conduct survey, phodi and durasth work <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in respect of land bearing Survey No.123/PAI-P4 of\r\nVadesamudra Village, Kasaba Hobli, Pandavapura Taluk,\r\nMandya, in accordance with law, within a period of nine months\r\nfrom the date of receipt of a certified copy of that order. The\r\ncomplainant has sent the certified copy of that order along with\r\nthe representation on 23-9-2014 to the Tahasildar and the\r\nTahasildar ought to have passed order on or before\r\n25-6-2015. Since the same has not been done, the\r\ncomplainant was forced to file the present contempt petition as\r\nlast resort.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. Though the order passed by the learned Single Judge\r\nis of the year 2014, we are now in the end of November, 2022,\r\nMore than eight years have been lapsed, the Authorities never\r\nacted to comply with the order, within the time stipulated\r\nthereby they have shown deliberate willful disobedience to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">order passed by this Court. It is well settled that Authorities of\r\nthe State Government, namely the Tahasildars, who are acting\r\nas Revenue Authorities under the provisions of Land Revenue\r\nAct are under constitutional duty coupled with power. Every\r\npublic servant is a trustee of the society and in all facets of\r\npublic administration, every Government servant has to exhibit\r\nhonesty, integrity, sincerity and faithfulness in implementation\r\nof the political, social, economic and constitutional policies to\r\nintegrate the nation, to achieve excellence and efficiency in the\r\npublic administration. Government or its authorities, who are\r\nentrusted with duty and power to implement constitutional\r\npolicy under Articles 14, 21 and 300 of Constitution of India.\r\nand all inter-related directive principles of state policy under\r\nthe Constitution, should exhibit transparency in implementation\r\nand of accountable for due effectuation of constitutional goals.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Though Circular was issued by the State Government\r\nand repeated orders having been passed by this Court, the\r\nState Government has not taken any action against any of the\r\nOfficers, who have not implemented the Court order in time\r\nincluding the concerned Officer in the present case. After lapse <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of four years of filing of the present contempt petition, now, the\r\naccused filed compliance affidavit, that too, after several\r\nhearing dates before this Court and thereby, this Court has\r\nbecome executing Court in the contempt proceedings. It is\r\nhigh time for the State Government to implement its own\r\nCircular dated 31-1-2022 against the erring Officer and to\r\nensure that orders of the Court shall be complied with,\r\notherwise, people will lose confidence in the judicial system.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. In the present case, the learned Single Judge passed\r\norder on 24-7-2014 directing the accused or the competent\r\nauthority to conduct survey, phodi and durasthi work in the\r\nland in question within nine months, i.e. on or before 25-7-\r\n2015. However, the same has been complied with, after lapse\r\nof eight years. The complainant who is senior citizen was\r\nforced to file the present contempt petition by engaging the\r\nservices of the counsel by spending litigation expenses, and\r\nfaced mental trauma because of not implementing the court\r\norder for more than eight years. Thereby the concerned\r\nTahasildars have willfully disobeyed the orders from 24-7-2014\r\ntill 10-2-2022. For the said act of dereliction of the duty, the\r\nTahasildars, who were holding posts from 24-7-2014 till 10-2-\r\n2022, are proportionately liable to pay cost of Rs.3,00,000/-\r\nfrom their personal pockets to the complainant and the Deputy <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Commissioner, Mandya, shall collect the said litigations costs\r\nfrom the concerned Tahasildars and to record the same in their\r\nrespective Service Records, and to ensure to pay the said costs\r\nto the complainant within one month from the date of receipt of\r\na copy of this order, failing which, serious action will be taken\r\nagainst the Deputy Commissioner, who is also a party to this\r\ncontempt petition.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. The contempt proceedings are hereby dropped,\r\nsubject to deposit of costs of Rs.3,00,000/- (Rupees\r\nthree lakh only) by the Tahasildars concerned, who\r\nwere holding posts from *24-7-2014 till 10-2-2022. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9eb95f57dcb061dce71f88d7b64f3a45.jpeg', '420331ef02aeff8630f97349958c349e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-13', 1, '', '', '2022-12-12 15:55:14', '2022-12-13 12:26:10'),
(2499, 'LdDURFb0oyUCI1CKzs6Ht8viF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Muslim couple enter into agreement to adopt unborn child of Hindu couple to overcome Muslim Law barrier. Karnataka High Court expresses shock while nixing the agreement.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Shahistha and others Vs The State.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">M.F.A 4617 of 2022 decided on 30 November 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice B. Veerappa and Justice K.S. Hemalekha.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The biological parents, i.e. appellant Nos.3 and 4 and alleged adoptive parents, i.e. appellant Nos.1 and 2 entered into unregistered agreement of an \'unborn child\' in the form of adoption, jointly filed the present appeal against the judgment and decree dated 31-5-2022 passed in G & W.C. No.9 of 2021 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">on the file of the Additional Senior Civil Judge, Udupi, dismissing the petition filed under Sections 7 to 10 and 25 of the Guardians and Wards Act, 1890 (for short, \'the Act\').</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. Appellant Nos.1 and 2 filed the petition before the trial Court under the provisions of Sections 7 to 10 and 25 of the G & W Act to grant permission to appoint them as the adoptive parents and guardians of a minor child, by name Inshu. Appellants Nos.3 and 4 are the biological parents of the said child. The child was born on 26-3-2020. Since appellant Nos.1 and 2 were childless and appellant Nos.3 and 4 were unable to look after the child due to poverty, appellant Nos.1 and 2 adopted the child. After adoption of the child, appellant Nos.1 and 2 have looked after raised the child for two years as their own daughter with love and affection. The respondentState represented by Legal-cum-Probation Officer, District Child Protection Unit, Udupi, lodged a complaint against appellant Nos.3 and 4 stating that they have illegally sold the child to appellant Nos.1 and 2. However, the only mistake committed by appellant Nos.3 and 4, biological parents, and appellant <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Nos.1 and 2, adoptive parents, is that due to lack of proper legal knowledge and guidance, the procedure was not complied with. Now, the child is in the custody of the respondents/ appellants 3 & 4. Therefore, appellant Nos.1 and 2 are seeking to appoint them as adoptive parents of the child.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">14. In view of the aforesaid rival contentions, the only point that would arise for our consideration in the appeal is:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><span style=\"font-weight: bolder;\">Whether appellant Nos.1 and 2, adoptive parents, and appellant Nos.3 and 4, biological parents, have made out a case to interfere with the judgment and decree passed by the trial Court? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">17. A careful perusal of the agreement entered into between the parties clearly depicts that appellant Nos.1 and 2 belong to Muslim community and appellant Nos.3 and 4 belong to Hindu community and thereby, the Mohammedan Law does not recognise adoption.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">19. Based on the agreement, appellant Nos.3 and 4 filed the petition before the trial Court for custody. In all cases, where a Court is called upon to adjudicate the question as to whether permission shall be granted to a pregnant woman for terminating her pregnancy on a plea of infringement of her fundamental right to life guaranteed under Article 21 of the Constitution, the Court has to make a balance between the rights of the mother and the rights of the unborn. The fact remains that as on the date of agreement entered into between the parties, appellant No.4 was in verge of completing nine </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">months of her pregnancy and thereby, the appellants, both adoptive parents and biological parents, have violated the rights of the child guaranteed under the provisions of Article 21 of the Constitution of India. Considering the peculiar facts and circumstances of the case, very agreement for adoption on 21- 3-2020 entered between the parties is invalid document and the same is not permissible under the principles of Mohammedan Law. As already stated supra, the 3rd respondent rightly lodged the complaint to the jurisdictional Police and in turn, they registered a case and now it is pending on the file of the Principal Civil Judge and Judicial Magistrate First Class, Karkala. Thereby, we resist to observe anything at this stage that it is for the concerned Court to proceed to a logical end in accordance with law.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">21. Even under Section 35 of the Juvenile Justice (Care and Protection of Children) Act, 2015, provides that (1) a parent or guardian, who for physical, emotional and social factors beyond their control, wishes to surrender a child, shall produce the child before the Committee; (2) if, after prescribed process of inquiry and counseling, the Committee is satisfied, a</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">surrender deed shall be executed by the parent or guardian, as the case may be, before the Committee, and (3) the parents or guardian who surrendered the child, shall be given two months time to reconsider their decision and in the intervening period, the Committee shall either allow, after due inquiry, the child to be with the parents or guardian under supervision, or place the child in a Specialised Adoption Agency, if he or she is below six years of age, or a children\'s home if he is above six years.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">22. When the State Government is providing so many benefits for the welfare of the Society, that too, for the people below the poverty and Section 35 of the Juvenile Justice (Care and Protection of Children) Act, 2015, clearly explains regarding surrender of the child, the agreement entered into between appellant Nos.1 and 2 and appellant Nos.3 and 4 cannot be sustained.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">24. For the reasons stated above, the point raised in the present appeal is answered in the negative holding that the appellants have not made out a case to interfere with the judgment and decree passed by the trial Court.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">ORDER</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">i. The appeal, being devoid of merits, is hereby dismissed; </span></p>', 'ecbac5e321e5d4e44b634bcff00d17a2.jpeg', 'fb75903e79055c8a8c15068b262581b5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-14', 1, '', '', '2022-12-13 11:28:04', '2022-12-14 08:43:56'),
(2500, '2SUMp8AtBfydSAgxtLWPu923k', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When the application under Section 11(6) of the Act is pending consideration before the High Court, Arbitrator cannot be appointed by the authority named in the arbitration agreement. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Monitoring Committee Vs M/S R B Seth Shreeram Narsingdas.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Commercial Appeal 57 of 2022 decided on 2 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P.S. Dinesh Kumar and Justice Anant Ramanath Hegde.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The following questions emerge in the set of facts\r\npleaded in this appeal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Whether the arbitrator could have been appointed\r\nby the authority named in the arbitration agreement,\r\nwhen the application filed under Section 11(6) of the\r\nAct, to appoint an arbitrator was pending\r\nconsideration before the High Court? </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) If such an appointment is impermissible, whether\r\nparticipation of the claimant in the arbitral\r\nproceedings before the arbitrator, who is appointed\r\nwhen Section 11(6) application was pending before\r\nthe court, amounts to waiver of objection relating\r\nto the jurisdiction of the arbitrator?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(iii) Whether the dismissal of the application under\r\nSection 11(6) of the Act, 1996, as having become\r\ninfructuous on the premise that the arbitrator has\r\nalready passed an award, will preclude the party\r\nfrom questioning the jurisdiction of the arbitrator in\r\nSection 34 proceeding?\" <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Brief facts which crop up the aforementioned\r\nquestions and the facts necessary for adjudication of the\r\ncase are:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The respondent in this appeal who is the\r\nclaimant before the arbitrator, (hereinafter <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">referred to as claimant) was the successful\r\nbidder in the auction conducted by the present\r\nappellant who is the respondent before the\r\narbitrator (hereinafter referred as respondent)\r\nwhere the auction was held to sell iron ore.\r\n </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2. The agreement between the parties provided\r\nfor the resolution of the dispute amicably\r\nthrough mutual consultation and in the event\r\nof dispute or difference remaining unresolved,\r\nsame shall be settled by arbitration by\r\nreferring the claims to the sole arbitrator to be\r\nappointed by the Chairman, Central\r\nEmpowered Committee (\'CEC\' short)</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> According to the claimant, the dispute arose\r\nrelating to the quality of the ore and a request </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was made to refer the matter to arbitration.\r\n Thus on 25.09.2015, the claimant made a\r\n request to appoint an arbitrator. The Chairman\r\n of the CEC who is authorized under Clause\r\n No.19, to appoint the arbitrator did not appoint\r\n the arbitrator even after lapse of a year.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. In view of the facts noticed above, it can be\r\nsafely concluded that this Court in CMP 233/2016, has not\r\ndecided the case on merits. This Court has also not\r\ndecided on the validity of the appointment made by the\r\nChairman of CEC. In fact said question cannot be decided\r\nin a petition under Section 11(6) of the Act, 1996 and the\r\nsaid question is outside the scope of Section 11(6) of the\r\nAct, 1996. This being the position, the order in CMP\r\n233/2016 cannot be construed as an order upholding the\r\nappointment made by the Chairman of CEC. This Court\r\nhas also not ruled that it had no jurisdiction to appoint the\r\narbitrator. Assuming that CMP 233/2016 could have been\r\nallowed and an arbitrator could have been appointed in\r\nexercise of power under Section 11(6) of the Act, 1996,\r\nthen it would lead to a strange situation where the new\r\narbitrator to be appointed would be called upon to decide\r\na dispute which was already decided by another\r\narbitrator. Such a thing is incomprehensible. The fact\r\nremains that CMP 233/2016 has been dismissed reserving <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the liberty to take appropriate action in the Court. The\r\nliberty granted by the Court in CMP in 233/2016 is in\r\nconsonance with the settled legal position under the Act,\r\n1996.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 21. Now the question is, \"Whether the liberty\r\ngranted by the learned designated Judge is availed by the\r\nparty, or is waived?\"</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. Thus, from reading the above extracted portion\r\nof the application filed by both the parties, it is apparent\r\nthat the objection relating to the jurisdiction of the\r\narbitrator was raised and same was acknowledged by the\r\npresent appellant. In terms of the ratio in paragraph No.\r\n47(vi) in SPB supra, once the arbitration proceeding\r\ncommences, any order passed before the final award by\r\nthe arbitrator, cannot be challenged in any Court and the\r\norder passed by the Arbitrator on his jurisdiction can be\r\nchallenged under Sections 34 and 37 of the Act, 1996.\r\nThus the order of the learned arbitrator\'s ruling with\r\nregard to his jurisdiction could not have been questioned\r\nby the claimant before the award was passed.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 28. This being the position, the next question to be\r\nconsidered is whether the claimant who participated in the\r\nproceedings before the Arbitrator, can turn around and\r\ncontend that the arbitrator had no jurisdiction. Does the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">conduct of the claimant participating in the proceeding\r\nbefore the Arbitrator, amount to waiver of objection\r\nrelating to the jurisdiction of the arbitrator?</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. In this background what is to be considered is\r\nwhether the claimant has raised objections within the time\r\npermitted under Section 4 of the Act, 1996 or not? If the\r\nanswer to the question is ‘yes’ then there is no waiver. If\r\nthe answer is ‘no’ then the party participating in the\r\nproceeding before the arbitrator cannot raise the\r\ncontentions which he has waived. As already noticed, the\r\nclaimant has raised objection before the arbitrator\r\ncontending that the appointment is invalid in view of the\r\nlaw laid down in the case of DEEP TRADING COMPANY\r\nsupra. The objection has been raised at the earliest\r\npossible opportunity. The objection having been overruled,\r\nthe claimant has participated in the proceeding without\r\nprejudice to his contentions relating to the jurisdiction of\r\nthe arbitrator. Thus it can be safely concluded that the\r\nclaimant has not waived his objection by participating in\r\nthe proceeding before the arbitrator.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34. Now the next question to be decided is\r\nwhether the Commercial Court is justified in allowing the\r\nSection 34 application and setting aside the award on the\r\nground that the arbitrator lacked the jurisdiction.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>35. Admittedly, in this case, the arbitrator is\r\nappointed one year after the request was made, whilst the\r\napplication under Section 11(6) of the Act, 1996 was\r\npending in this Court. In view of the law laid down in the\r\ncase of DEEP TRADING COMPANY supra, the appointment\r\nought to have been made before filing of Section 11(6)\r\napplication. Once the application is filed under Section\r\n11(6) for appointment of an arbitrator, the authority to\r\nappoint the arbitrator conferred under the agreement is\r\nlost. If the appointment is made by anyone other than the\r\ndesignated Court during the pendency of Section 11(6)\r\napplication, then such an appointment is without\r\njurisdiction. Therefore, in our considered view, the\r\narbitrator in this case had no jurisdiction, as the authority <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appointing the arbitrator itself had no jurisdiction to\r\nappoint the arbitrator. Under these circumstances the law\r\nlaid down in DEEP TRADING COMPANY supra squarely\r\napplies. The Commercial Court is justified in applying the\r\nsaid ratio in the case and setting aside the award.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Appeal is dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1553f6b2f6069d5b0b60381df759594e.jpeg', 'd1790373e63ea026c2801d74da8a0a37.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-14', 1, '', '', '2022-12-13 11:41:02', '2022-12-14 11:37:26'),
(2503, '7ZGMoMxIQ3GFx1KV86cDoiAhK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Municipalities Act. In case of incomplete or incorrect property tax return, the Municipality has a right to assess property only for a period of six years and not beyond it. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Laxmi Venkateshwara Industries and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 107448 of 2018 decided on 1 December 20222.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The petitioners are before this Court\r\nquestioning the notices issued to them by the Municipality,\r\nby which, the petitioners have been called upon to pay the\r\ndifference in the property tax for the period 2005-06 to\r\n2017-18. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. It is the case of the petitioners that they have\r\nbeen filing their returns by way of self assessment and\r\nthese returns have been accepted by the Municipality and\r\ntherefore it was impermissible for the Municipality to\r\ndemand tax retrospectively.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n3. It is contended that since returns were filed by\r\nthe petitioners regularly and the Corporation had not\r\nexercised its power to initiate proceedings to assess under\r\nSection 105(4) on the ground that an incomplete or\r\nincorrect return was filed, it will have to be assumed that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the tax payable to the Municipality had escaped\r\nassessment, as contemplated under Section 115 of the\r\nMunicipality Act. It is therefore contended that the\r\nMunicipality could, at best, seek for tax which had escaped\r\nassessment only for the preceding period of 6 years prior\r\nto 04.12.2017, the date of the notice.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Be that as it may, it cannot be in dispute that\r\nSection 115 of the Karnataka Municipalities Act, 1964 ,\r\npermits the Municipality to initiate proceedings for\r\nassessment, only if the tax had escaped assessment, at\r\nany time prior to 6 years from the date on which the tax\r\nwas required to be assessed. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. It cannot also be in dispute that the only\r\nmethod of assessment of property tax provided under the\r\nAct is as laid down in Section 105 of the Municipalities Act.\r\nSection 105 requires every owner of a property to submit,\r\nevery year, a return in a prescribed form and before filing\r\nsuch returns, he is also required to pay in advance the full\r\namount of the property tax payable by him.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. It is therefore essential that on an incomplete\r\nor incorrect return being filed, the Municipality is required\r\nto pass an order, as contemplated under Section 105(4)2\r\n.\r\nIf this assessment is not so made under Section 105(4), it\r\nis obvious that it would amount to a tax, which has\r\nescaped assessment. This position becomes clear by virtue\r\nof the fact that in Section 115, the word used is\r\n“assessed”.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. It is admittedly the case of the parties that\r\nreturns were filed every year but no assessment as\r\ncontemplated under Section 105 was made by the\r\nMunicipality. Since it is the case of the Municipality that\r\nthe proper amount of tax had not been paid by the\r\npetitioner, it would mean that the petitioners had filed an <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">incorrect return. As a consequence, it will have to be held\r\nthat if incomplete or incorrect return had been filed, the\r\nMunicipality had a right to assess property only for a\r\nperiod of 6 years prior to the date on which the property\r\nwas required to be assessed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Since in the instant case, the notice was issued\r\nonly on 04.12.2017, it is obvious that Municipality could at\r\nbest claim tax which escaped assessment for a period of 6\r\nyears preceding 04.12.2017.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. Since the impugned notice demands tax from\r\n2005-06, it will have to be held that the demand made\r\ntherein for a period in excess of 6 years prior to\r\n04.12.2017 would be unsustainable.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. The impugned notices are accordingly quashed\r\ninsofar as it relates to the period of 6 years prior to\r\n04.12.2017. The Municipality shall accordingly issue fresh\r\nmodified demand in accordance with law with this\r\njudgment. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. Writ petitions are accordingly allowed in part. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '660a6cbcc255e70d123024dd7202c496.JPG', 'b6550f0f401a361e48e58b91cf83688f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-14', 1, '', '', '2022-12-13 14:06:05', '2022-12-14 03:26:37'),
(2501, '5SQGRTPTFQcjf6ww2DcgjoIx4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'The stage of discharge under Section 227 Cr.P.C. is a stage prior to framing of the charge and it is at that stage alone that the court can consider the application under Section 300 Cr.P.C. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chandi Pulliya Vs The State of West Bengal.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 2249 of 2022 decided on 12 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The facts leading to the present appeal in nutshell are as under:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>That the appellant herein was tried earlier for the offences\r\npunishable under Sections 148, 149, 448, 364 & 506 of the Indian Penal\r\nCode (IPC) in FIR No. 61/2002 dated 26.09.2002 of Keshpur Police\r\nStation. The appellant came to be acquitted by the learned Sessions\r\nCourt vide judgment and order of acquittal dated 21.05.2010. That\r\nthereafter on 6.6.2011, after a period of nine years from the date of\r\nregistration of the first FIR and one year from the date of acquittal, a\r\nsecond FIR came to be lodged against the appellant and others alleging\r\ninter alia that the appellant and other co-accused had caused the death\r\nof Ajay Acharya, i.e., father of the first informant, the same person that\r\nthey had alleged to have kidnapped and were acquitted of.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. We have heard learned counsel for the respective parties at\r\nlength.\r\nAt the outset, it is required to be noted that pursuant to the liberty\r\nreserved by the High Court while dismissing the petition under Section\r\n482 Cr.P.C., the appellant accused filed an application for discharge\r\nunder Section 227 r/w Section 300(1) Cr.P.C. Out of the said\r\napplication, application under Section 300(1) Cr.P.C. has been\r\ndismissed by the learned trial Court by observing that the appellantaccused shall be entitled to raise all the points including the applicability\r\nof Section 300(1) Cr.P.C. at the time of hearing on framing of charge. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. On a fair reading of Section 227 Cr.P.C, if, upon consideration of\r\nthe record of the case and the documents submitted therewith, and after\r\nhearing the submissions of the accused and the prosecution in this\r\nbehalf, the Judge considers that there is not sufficient ground for\r\nproceeding against the accused, he shall discharge the accused and\r\nrecord his reasons for doing so. As per Section 228 Cr.P.C. only\r\nthereafter and if, after such consideration and hearing as aforesaid, the\r\nJudge is of the opinion that there is ground for presuming that the\r\naccused has committed an offence, the trial Court shall frame the\r\ncharge. Therefore, as rightly submitted by Shri Siddhartha Dave, learned\r\nsenior counsel appearing on behalf of the appellant-accused that the\r\nstage of discharge under Section 227 Cr.P.C. is a stage prior to framing\r\nof the charge (under Section 228 Cr.P.C.) and it is at that stage alone\r\nthat the court can consider the application under Section 300 Cr.P.C.\r\nOnce the court rejects the discharge application, it would proceed to\r\nframing of charge under Section 228 Cr.P.C</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. Under the circumstances, the learned trial Court has erred in not\r\nconsidering the application under Section 300(1) Cr.P.C. at the time of\r\nframing of charge and/or prior to framing of the charge. As observed\r\nhereinabove, the trial Court had observed that the appellant-accused\r\nshall be entitled to raise all points as mentioned in his application under\r\nSection 300(1) Cr.P.C. at the time of hearing on framing of charge.\r\nHowever, as observed hereinabove, such exercise was required to be\r\ndone at a stage prior to framing of charge and if ultimately the court\r\ncomes to the conclusion overruling the objection of Section 300(1)\r\nCr.P.C. and on facts satisfies then it may frame the charge as provided\r\nunder Section 228 Cr.P.C. The High Court has not at all appreciated\r\nand/or considered the aforesaid aspect. Therefore, the matter is\r\nrequired to be remanded to the learned trial Court to consider the plea of\r\nthe accused on applicability of Section 300(1) Cr.P.C. at the stage of\r\ndischarge under Section 227 Cr.P.C., which is a stage prior to framing of\r\nthe charge under Section 228 Cr.P.C.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Now so far as the prayer on behalf of the appellant to discharge the\r\naccused in view of the bar under Section 300(1) Cr.P.C. is concerned,\r\nthe same may not be granted at this stage in view of the earlier order\r\npassed by the High Court dismissing the petition under Section 482\r\nCr.P.C. to quash the criminal proceedings which were sought to be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">quashed on the very ground and the accused was relegated to avail\r\nremedy at the time of discharge. It is to be noted that the earlier order\r\npassed by the High Court had attained finality and even thereafter the\r\nappellant-accused had filed the discharge application under Section 227\r\nr/w Section 300(1) Cr.P.C.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. In view of the above and for the reasons stated above, the\r\nimpugned judgment and order passed by the High Court is hereby\r\nquashed and set aside.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. The present appeal stands disposed of with the aforesaid\r\nobservations.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'bb0115e984f1a1c36ea2d0fdd8709894.jpeg', '1f706fd8bf092029121fd123e083b7bb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-14', 1, '', '', '2022-12-13 12:06:41', '2022-12-14 06:56:22');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2502, 'N0kbQlmGT4OAkX3qSIUMlhUB1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Writ jurisdiction cannot be invoked challenging issuance of caste certificate since alternate remedy of appeal is provided under the Karnataka SC/ST & OBC (Reservation of Appointments, etc.,) Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K.G. Kumaraswamy Vs B.T. Thimmaiah and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Appeal 6851 of 2013 decided on 1 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Alok Aradhe and Justice S Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. Brief facts of the case as revealed from the records\r\nwhich are necessary for the purpose of disposal of this appeal\r\nare, the jurisdictional Tahsildar had issued a caste certificate in\r\nfavour of the appellant stating that he belongs to Bhovi\r\ncommunity which falls under Scheduled Caste. The said caste\r\ncertificate was challenged by respondent no.1 herein before </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">this Court in W.P.No.6366/2008 and the said writ petition was\r\ndisposed of with a direction to respondent no.1 to avail the\r\nalternative remedy of appeal as provided under the statute.\r\nRespondent no.1, thereafter, filed an appeal before the\r\nAppellate Authority under Section 4-B of the Karnataka\r\nScheduled Caste/Scheduled Tribe & Other Backward Caste\r\n(Reservation of Appointments, etc.,) Act, 1990 (for short, \'the\r\nAct\') and the Appellate Authority vide its order dated\r\n24.03.2009 set aside the caste certificate issued in favour of\r\nthe appellant and the matter was remitted to the Tahsildar for\r\nholding fresh enquiry. This order was questioned by the\r\nappellant herein in W.P.No.8171/2009 and this Court had\r\ndisposed of the said writ petition without interfering with the\r\norders passed by the Appellate Authority with an observation\r\nthat the Tahsildar shall decide the entire issue independently\r\nwithout being influenced by the observations made by the\r\nAppellate Authority in its orders. The Tahsildar, thereafter, held\r\na fresh enquiry and passed an order dated 31.03.2010\r\ndeclaring that the appellant belongs to Bhovi community. The\r\nsaid order was challenged by respondent no.1 before this Court\r\nin W.P.No.17975/2010 which was allowed by the learned Single </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judge of this Court vide the order impugned and the matter\r\nwas remitted back to the Tahsildar once again for fresh\r\nenquiry. Being aggrieved by the said order, respondent no.3 in\r\nthe writ petition has preferred this appeal.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. Undisputedly, the caste certificate has been issued by\r\nthe Tahsildar to the appellant exercising his powers under\r\nSection 4-A of the Act. Irrespective of the purpose for which <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the said caste certificate has been issued, since the caste\r\ncertificate has been issued in exercise of the powers under\r\nSection 4-A of the Act by the Tahsildar, respondent no.1 has an\r\nefficacious alternative remedy to challenge the said caste\r\ncertificate before the Appellate Authority as provided under\r\nSection 4-B of the Act. Under the circumstances, in our\r\nconsidered view, the learned Single Judge was not justified in\r\nentertaining the appeal, more so when respondent no.1 was\r\ndirected to avail the alternative remedy of appeal in the first\r\nround of litigation.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The Division Bench of this Court in\r\nW.A.No.200109/2015 (Basanna Vs. The General Manager &\r\nothers) disposed of on 09.07.2019 has observed that as against\r\nthe order passed under Section 4-A of the Act, the appeal lies\r\nunder Section 4-B of the Act before the Assistant Commissioner\r\nor the remedy of revision is also available under Section 4-F of\r\nthe Act before the Deputy Commissioner.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 10. Under the circumstances, we are of the considered\r\nview that the learned Single Judge was not justified in\r\nentertaining the writ petition since respondent no.1 had not <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">availed the efficacious alternative remedy available under the\r\nAct. Accordingly, the following order:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 11. The writ appeal is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6823cea3ad93e3ae3b5401e8bd03c890.jpeg', '6440b630db7f7aa5fb33eed55e349cc4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-15', 1, '', '', '2022-12-13 13:30:17', '2022-12-15 03:23:17'),
(2504, 'ZN09Q7mWpXMZCRAEgkYeI6av3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Reference under section 18 of the Land Acquisition Act filed within six months after the challenge to acquisition proceedings was rejected is valid and cannot be rejected as barred by time. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Manharlal Shivlal Panchal and others Vs The Deputy Collector and Special Land Acquisition Officer and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 9004 of 2022 decided on 12 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order dated 10.03.2022 passed by the High Court of Gujarat at\r\nAhmedabad in Regular First Appeal No. 492/2022, by which the High\r\nCourt has dismissed the said appeal preferred by the appellants herein\r\nand has confirmed the order dated 20.10.2021 passed by the Reference\r\nCourt, rejecting the reference under Section 18 of the Land Acquisition\r\nAct, 1894 (hereinafter referred to as the ‘Act 1894’) as barred by\r\nlimitation, the original claimants have preferred the present appeal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts leading to the present appeal in nutshell are as under:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>That a notification under Section 4 of the Act 1894 came to be\r\nissued for acquiring the lands in question for the construction of Gas\r\nCompressor Station and necessary facilities under the Reliance Gas\r\nTransportation, Surat on 30.07.2008. Declaration under Section 6 of the\r\nAct 1894 was issued on 1.6.2009. The Land Acquisition\r\nOfficer/Collector declared the award under Section 11 of the Act, 1894\r\nawarding compensation @ Rs. 69/- per square meter, vide award dated\r\n6.4.2011. Notice under Section 12(2) of the Act, 1894 with a copy of the\r\naward was issued to the landowners/appellants on 25.04.2011. The\r\nappellants filed Special Civil Application No. 1428/2012 before the High\r\nCourt challenging notifications under Sections 4 & 6 of the Act, 1894 as\r\nwell as award dated 6.4.2011. The Division Bench of the High Court vide\r\njudgment and order dated 7.8.2012 dismissed the said writ petition.\r\nHowever, while dismissing the writ petition, the Division Bench reserved\r\nliberty with the appellants to pursue such remedy as may be available to\r\nthem for enhancement of the compensation or any other relief to which\r\nthey may be legally entitled.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. The reference under Section 18 of the Act, 1894 has been\r\ndismissed as barred by limitation having been filed beyond the period of\r\nsix months, specified in Section 18(2) of the Act, 1894. The same has\r\nbeen confirmed by the High Court. However, it is required to be noted\r\nthat the respective appellants – original landowners, as such, challenged\r\nthe acquisition proceedings as well as the award under Section 12(2) of\r\nthe Act, 1894, which ended in dismissal of the special leave petition by\r\nthis Court vide order dated 11.4.2013. The reference applications were\r\nfiled on 1.7.2013. At this stage, it is required to be noted that though in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the writ petition being SCA No. 1428/2012, the award under Section\r\n12(2) of the Act was challenged on the ground of inadequacy of the\r\namount of compensation and though the Division Bench of the High\r\nCourt dismissed the said writ petition, however thereafter reserved\r\nliberty in favour of the appellants – original landowners to pursue such\r\nremedy as may be available to them for enhancement of compensation\r\nor any other relief to which they may be legally entitled. In view of that\r\nliberty, the appellants – original landowners thereafter and after\r\ndismissal of the special leave petition by this Court filed reference.\r\nTherefore, in view of the liberty reserved by the High Court in favour of\r\nthe appellants to pursue such remedy as may be available to them for\r\nenhancement of compensation, the reference application could not have\r\nbeen dismissed as barred by limitation under Section 18(2) of the Act,\r\n1894. Within a period of six months from the date of dismissal of the\r\nspecial leave petition, the reference was filed. In the special leave\r\npetition, which was dismissed by this Court on 11.4.2013, the original\r\nlandowners whose valuable lands had been acquired challenged the\r\nacquisition proceedings. At this stage, it is required to be noted that\r\nthough in the writ petition before the High Court (in the earlier round of\r\nlitigation) they challenged the award under Section 12(2) of the Act and\r\nthe High Court observed that it is too late to make any grievance, still the\r\nHigh Court while dismissing the writ petition reserved liberty in favour of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the appellants to initiate appropriate proceedings for enhancement of the\r\ncompensation.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Now so far as the reliance placed upon the decisions of this Court\r\nin the cases of Shah Manilal Chandulal & Others (supra) and\r\nMahadeo Bajirao Patil (supra) are concerned, there cannot be any\r\ndispute on the proposition of law laid down by this Court that the\r\nlimitation for making reference under Section 18 of the Act, 1894 cannot\r\nbe extended and that Section 5 of the Limitation Act shall not be\r\napplicable. However, in the present case, it is not the case of condoning <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the delay in exercise of powers under Section 5 of the Limitation Act. As\r\nobserved hereinabove, in the present case, the appellants challenged\r\nthe acquisition proceedings which ended on the dismissal of the special\r\nleave petition by this Court vide order dated 11.4.2013 and thereafter\r\npursuant to the liberty reserved by the High Court, reserved while\r\ndismissing Writ Petition No. 1428/2012, within a period of six months\r\nfrom the date of dismissal of the special leave petition, i.e., on 1.7.2013,\r\nthe original landowners filed reference application under Section 18 of\r\nthe Act, 1894. In the aforesaid two decisions before this Court, there\r\nwere no such facts. Therefore, on facts, the aforesaid two decisions\r\nshall not be applicable to the facts of the case on hand.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. In view of the above and for the reasons stated above, the present\r\nappeal succeeds. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The impugned judgment and order passed by the High\r\nCourt as well as the order passed by the reference court dismissing the\r\nwrit petition/reference under Section 18 of the Act, 1894 as barred by\r\nlimitation are hereby quashed and set aside.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8f9ec1e5a5aad8847f3693438509ad72.jpeg', 'e75316cbdca8a053500d1ea9be4931c7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-15', 1, '', '', '2022-12-14 12:52:35', '2022-12-15 06:59:48'),
(2505, 'flZDvoG1nTZy54Q0YMdhXCP1N', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'To determine weight of ganja to bring it under small or medium or commercial quantity, seeds and leaves cannot be excluded. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rangappa Vs State and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 11678 of 2022 decided on 7 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Natarajan</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This petition is filed by the petitioner-accused No.2\r\nunder Section 482 of Cr.P.C. for quashing the criminal\r\nproceedings in C.C. No.340/2021 (old C.C. No.234/2020)\r\npending on the file of Principal Civil Judge (Sr. Dn.) and\r\nCJM Court, Chennagiri, for the offences punishable under\r\nSections 20(a)(i), 20(b)(ii)(A) of the Narcotic Drugs And\r\nPsychotropic Substances Act, 1985 (hereinafter referred to\r\nas \'NDPS Act\') registered by Basavapatna Police Station,\r\nDavanagere.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The main contention of the learned counsel for\r\nthe petitioner is that the seized ganja of 750 grams is\r\ncontaining the leaves and seeds which is not considered as\r\nganja as per the provisions of Section 2(iii) (b) of the\r\nNDPS Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. That apart, the opinion of FSL indicates the\r\npositive of ganja. The trial Court has also examined three\r\nwitnesses. Considering the facts, the contention of the\r\npetitioner that the seized quantity of ganja will not fall\r\nunder the definition of ganja under Section 2(iii) (b) of the\r\nNDPS Act, cannot be acceptable.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">11. Therefore, considering the above, I am of the\r\nview that for determining the weight of ganja, to bring\r\nunder the small or medium or commercial quantity, it\r\ncannot be bifurcated by removing seeds and leaves and it\r\ncannot be a ground for quashing the criminal proceedings, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">when the FSL report was issued stating that the result of\r\nchemical analysis is positive of the ganja. Therefore, even\r\nfor the purpose of considering the bail application, if the\r\ncommercial quantity of ganja is seized, the accused cannot\r\nplead to bring under the medium quantity claiming that it\r\nis not a commercial quantity by excluding the seeds and\r\nleaves as per the judgment of the Hon\'ble Supreme Court\r\nof Hira Singh\'s case, stated supra. Therefore, it is not a\r\nground for quashing the criminal proceedings stating that\r\nseized material is not that of ganja. Hence, the contention\r\nof the petitioner is not sustainable under law and\r\ntherefore, I hold that the contents of seized material is\r\nganja, that includes fruiting tops, flower accompanying the\r\nseeds and leaves. Therefore, the petition deserves to be\r\ndismissed.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> Accordingly, the criminal petition dismissed.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '76f0b1cfd9213249ee6c465807b8a241.JPG', '64b0a77fa71a6d5f2dbdc1d7eeaa0d93.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-15', 1, '', '', '2022-12-14 13:01:17', '2022-12-15 08:52:46'),
(2506, 'Z8mTSAfToo4IbhV3nCIq6kZMI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Pathi, Patni aur Woh. Direction to place call/tower details of the wife’s lover before the Court violates privacy guaranteed under Article 21 of the Constitution of India. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vishwas Shetty Vs Preethi K Rao and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 13165 of 2019 decided on 30 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court calling in question\r\norder dated 23-02-2019 passed by the V Additional\r\nPrincipal Judge, Family Court, Bangalore on I.A.No.8 in\r\nM.C.No.556 of 2018 whereby the Court permits\r\nsummoning of mobile tower record details of the mobile\r\nnumber of the petitioner</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Brief facts that lead the petitioner to this Court, as\r\nborne out from the pleadings, are as follows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n The 1st respondent and the 2nd respondent are wife\r\nand husband. After their marriage, the relationship turning\r\nsore, the wife files a petition before the Family Court in\r\nM.C.No.556 of 2018 seeking annulment of marriage with\r\nthe 2nd respondent on account of cruelty. Merit of the\r\nclaim of the wife or the defence of the 2nd\r\nrespondent/husband is not the issue in the present lis. In\r\nthe said proceedings, the husband files an application\r\nseeking call record details of the wife and her alleged\r\nparamour which the court allows by an order dated 24-11-\r\n2018. That is challenged before this Court by the wife in\r\nWrit Petition No. 1338 of 2019. In the said petition it was\r\nthe contention of the wife that none of the defense that\r\nthe wife had let in qua the said interlocutory application is\r\nconsidered by the concerned Court. This Court, accepting <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the said contention, sets aside the order and directed the\r\nwife to prefer an application seeking review of the order\r\npassed allowing I.A.No.5 of 2018. It is then the application\r\nin I.A.No.8 was filed seeking review of the order dated\r\n24.11.2018. Answering the said application for review, the\r\nconcerned Court refused to allow the said application but\r\ngrants summoning of tower location details only from the\r\nconcerned authority i.e., the mobile operator. The tower\r\nlocation of the wife and the petitioner is sought to be\r\nproduced before the concerned Court. The petitioner is the\r\nalleged paramour of the wife of the 2nd respondent as\r\nalleged by the husband. The said paramour is before this\r\nCourt calling in question the said order on the ground that\r\nhe is a third party to the proceedings. This Court,\r\nentertaining the petition, granted an interim order as\r\nprayed for, by its order dated 05-04-2019. The said\r\ninterim order of stay is in operation as on date.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The issue would now be whether the order would\r\nviolate the right to privacy of the petitioner. As stated\r\nearlier, the petitioner is not a party to the proceedings.\r\nThe allegation of the husband is that the wife has illicit\r\nrelationship with the petitioner. The petition for divorce is\r\nnot filed by the husband. It is the wife who initiates <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Matrimonial Case No.556 of 2018 against the husband\r\nseeking annulment of marriage on the ground of cruelty.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. In the case at hand, tower details of the\r\npetitioner is permitted to be taken and produced. It is for\r\nthe first time, the petitioner comes into the picture merely\r\non an allegation of illicit relationship. He is a third party to\r\nthese proceedings. Third party’s privacy cannot be\r\npermitted to be violated on the specious plea of the\r\nhusband that he wants to prove illicit relationship between\r\nthe petitioner and the wife. It is trite that right to privacy\r\nis implicit in the right to life and liberty guaranteed to the\r\ncitizens of the Country under Article 21 of the Constitution\r\nof India. It is a right to be ‘let alone’. A citizen has a right\r\nto safeguard the privacy of his own, his family, marriage\r\nand other incidental relationships. Informational privacy\r\nalso forms an integral part of right to privacy. Therefore,\r\nthe order which directs tower details of the petitioner to be\r\nplaced before the Court in a proceeding, which he is not\r\neven a party, undoubtedly violates informational privacy.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. The acceptance of the order by the wife, by not\r\nchallenging it as of now, would have no bearing on the\r\nright of the petitioner to seek quashment of the said order\r\ninsofar as, it concerns him, as he is a third party. Wife,\r\nwho is anyway party to the proceedings, has instituted\r\ndivorce case, her acceptance or otherwise, cannot bind the\r\npetitioner. There is no warrant to permit tower details of\r\nthe petitioner to be summoned or brought before the\r\nconcerned Court to aid the plea of the husband who has\r\nnot even filed any case.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) The Writ Petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '62a32779ce3def60fa1b74652d65236e.jpeg', 'e3b9e8c90b05633f671c3d290b8d2d1c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-15', 1, '', '', '2022-12-14 13:35:37', '2022-12-15 12:37:47'),
(2507, 'rL2Y2895zpYDSY0ndQh2pI67O', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Stay of reinstatement order by High Court cannot be a ground to deny backwages to the employee when ultimately the order of reinstatement is confirmed. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>D.N. Krishnappa Vs The Deputy General Manager.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 9008 of 2022 decided on 12 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved and dissatisfied with impugned judgment\r\nand order dated 30.06.2022 passed by the High Court of\r\nKarnataka at Bengaluru in Writ Petition No. 7176/2021,\r\nby which, the High Court has allowed the said writ petition\r\npreferred by the respondent - bank and has set aside the\r\norder passed by the Central Government Industrial\r\nTribunal – cum - Labour Court (hereinafter referred to as\r\nthe CGIT/Labour Court) in an application under Section\r\n33-C(2) of the Industrial Disputes Act, 1947 (hereinafter\r\nreferred to as the ID Act) awarding wages for the period <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">from 18.07.2007 to 23.09.2013, the employee – workman\r\nhas preferred the present appeal.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts leading to the present appeal in a nutshell are as\r\nunder: -\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.1 That the appellant herein was working with the respondent\r\n- bank. In the departmental proceedings he was dismissed\r\nfrom service on 27.09.1996. The order of dismissal was\r\nchallenged by the appellant before the CGIT under Section\r\n10(2)(a) of the ID Act. By the award dated 18.07.2007, the\r\nCGIT set aside the order of dismissal and passed an order\r\nof his reinstatement with 50% back wages and withholding\r\nfour annual increments with cumulative effect from the\r\ndate of order of punishment. The said award was\r\nchallenged before the High Court by the bank as well as\r\nthe appellant herein. The learned Single Judge by\r\njudgment and order dated 18.04.2013 confirmed the order\r\nof reinstatement, however, reduced the back wages from\r\n50% to 25%. In the appeal(s), the Division Bench of the\r\nHigh Court also confirmed the order of reinstatement\r\npassed by the CGIT, however held that the appellant is not <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">entitled to any back wages. The judgment and order dated\r\n12.07.2013 was the subject matter of Special Leave\r\nPetition(s) before this Court. This Court dismissed the\r\nSpecial Leave Petition(s). Thus, the order of reinstatement\r\nin terms of award dated 18.07.2007 attained the finality.\r\nThat thereafter, the appellant came to be reinstated on\r\n23.09.2013.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.2 That neither was he reinstated earlier in spite of award\r\ndated 18.07.2007 nor was he paid full wages from the date\r\nof award i.e., 18.07.2007, therefore, he again approached\r\nthe CGIT by filing an application under Section 33-C(2) of\r\nthe ID Act claiming back wages from the date of award\r\ndated 18.07.2007 passed by the CGIT till his actual\r\nreinstatement. The CGIT allowed the said application and\r\ndirected the bank – employer to pay the wages due from\r\nthe date of award to the date of actual reinstatement. The\r\nbank preferred the present writ petition before the High\r\nCourt. By the impugned judgment and order, the Division\r\nBench of the High Court has set aside the order passed by\r\nthe CGIT relying upon the decision of this Court in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">case of Bombay Chemical Industries Vs. Deputy Labour\r\nCommissioner & Anr.; (2022) 5 SCC 629, and has\r\nobserved and held that CGIT had no jurisdiction to decide\r\nthe application under Section 33-C (2) of the ID Act.\r\nFeeling aggrieved and dissatisfied with the impugned\r\njudgment and order passed by the Division Bench of the\r\nHigh Court, the employee – workman has preferred the\r\npresent appeal.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5.1 The short question which is posed for consideration of this\r\nCourt is whether the appellant shall be entitled to the full\r\nwages from the date of award of reinstatement i.e.,\r\n18.07.2007 passed by the CGIT to the actual date of\r\nreinstatement i.e., 23.09.2013?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Having heard learned counsel appearing on behalf of the\r\nrespective parties and considering the facts narrated\r\nhereinabove, it emergers that the order of reinstatement\r\nvide award dated 18.07.2007 has been confirmed up to the\r\nDivision Bench of the High Court and even by this Court.\r\nWhat was modified by the High Court was the back wages\r\nfrom the date of termination till the date of award passed\r\nby the CGIT. It was the bank – employer who obtained the\r\nstay order against the order of reinstatement which\r\nultimately came to be terminated on 12.07.2013 when the\r\nDivision Bench of the High Court dismissed the writ\r\nappeals. As observed hereinabove, it was the employer –\r\nbank who obtained the stay against reinstatement and\r\nultimately order of reinstatement attained the finality. Why\r\nshould the employee be made suffer, when the bank <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">obtained the stay of reinstatement and when the order of\r\nreinstatement subsequently came to be confirmed and\r\nattained the finality?</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7.2 Similarly, the submission on behalf of the bank applying\r\nthe principle of merger has also no substance. In the\r\npresent case as such the order of award of reinstatement <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">has been confirmed by the Division Bench of the High\r\nCourt. Therefore, the order of reinstatement will rely back\r\nto the original order passed by the Labour Court. Merely\r\nbecause the reinstatement order was under challenge and\r\nthere was a stay of the order of reinstatement during the\r\npendency of the proceedings before the High Court, it\r\ncannot be a ground to deny the wages to the employee\r\nwhen ultimately the order of reinstatement came to be\r\nconfirmed and attained the finality.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7.3 Now so far as the submissions on behalf of the bank that\r\nas during the pendency of the proceedings before the High\r\nCourt and for the period during the stay of order of\r\nreinstatement, the appellant was paid the last drawn\r\nwages under Section 17B of the ID Act and therefore he is\r\nnot entitled to any wages for the period during the stay is\r\nconcerned, there is no substance. At the most, whatever is\r\nheld to be entitled to pay the appellant – employee as\r\nwages from the order of award of reinstatement till actual\r\nreinstatement, whatever is paid under Section 17B of the\r\nID Act, the same is to be deducted and/or adjusted.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7.4 Now reliance placed upon the decision of this Court in the\r\ncase of Bombay Chemical Industries (supra) considered\r\nby the High Court is concerned, as such the High Court\r\nhas mis-applied the said decision to the facts of the case\r\non hand. In the present case, the claim of the appellant\r\nwas adjudicated upon. The appellant approached the\r\nIndustrial Tribunal by way of an application under Section\r\n33-C(2) of the ID Act for implementation of award dated\r\n18.07.2007. Therefore, so far as the order of reinstatement\r\nand the wages claimed on the order of reinstatement is\r\nconcerned, the same were already adjudicated upon. In the\r\ncase of Bombay Chemical Industries (supra), it is\r\nobserved and held that un-adjudicated claim cannot be the\r\nsubject matter of proceedings under Section 33-C(2) and in\r\nthe proceedings under Section 33-C(2), the Tribunal can\r\nonly interpret the award or settlement on which the claim\r\nis based. Under the circumstances, the said decision shall\r\nnot be applicable to the facts of the case on hand.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. In view of the above and for the reasons stated above, the\r\nimpugned judgment and order passed by the Division <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Bench of the High Court allowing the writ petition\r\npreferred by the respondent – bank and quashing and\r\nsetting aside the order passed by the CGIT under Section\r\n33-C(2) of the ID Act directing the bank to pay the wages\r\nfrom 18.07.2007 to 23.09.2013 is unsustainable and the\r\nsame deserves to be quashed and set aside and is\r\naccordingly quashed and set aside. It is held that the\r\nappellant shall be entitled to the full wages with all\r\nemoluments from the date of order of reinstatement i.e.,\r\n18.07.2007 to the date of actual reinstatement i.e.,\r\n23.09.2013, however, after adjusting/deducting the\r\namount already paid under Section 17B of the ID Act.\r\nPresent appeal is allowed accordingly to the aforesaid\r\nextent. No costs.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c64761c4ecd2b8ee9efb82fedc8ce218.jpeg', '1294b147d8351a442d473881eca1a17d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-15', 1, '', '', '2022-12-14 18:48:04', '2022-12-15 10:45:38');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2508, 'tA7KTbGq9Wgx0hnS9B4FVqApy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Where contractual term provides pre estimate amount as ‘earnest money’, the onus to prove that the same was ‘penal’ in nature lies on the party seeking refund of the same failing which the amount would become genuine pre estimate of loss. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Desh Raj and others Vs Rohtash Singh.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 921 of 2022 decided on 14 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Surya Kant and Justice Bela M. Trivedi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. The subject matter of the original suit was a property measuring 23 Kanals 4 Marlas bearing Khewat No. 226, Khatoni No. 225, Rect. No. 27, Kila No 3 min (2­9), 4 min (4­15), 7(8­0), 14(4­0) situated in the revenue estate of Village Tigra, Tehsil and District Gurgaon (hereinafter, ‘Concerned Property’) which the Appellants jointly owned to the extent of their respective shares.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. Two separate agreements to sell were entered between the present parties for the Concerned Property on 17.02.2004 (hereinafter, ‘Sale Agreements’). In the first agreement, Appellant Nos. 1 to 4 agreed to sell their share to the extent of 4/5th of the Concerned Property while in the second agreement, Appellant No. 5 agreed to sell the remaining 1/5th share to the Respondent which accrued to her and her minor son. It must be noted that the material terms of both agreements are identical except that in the second agreement, Appellant No. 5 was contractually bound to secure the permission under The Hindu Minority and Guardianship Act, 1956 to sell the share of the minor.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13. The High Court in its impugned judgment made two observations which are pertinent to note – first that no evidence was led by the parties to prove whether they took requisite steps to obtain the NOC under Section 7A of HUDA Act and; second that presence of Appellants before the Sub­Registrar on 31.08.2004 or 01.09.2004 when last opportunity to execute the sale deed was granted to Respondent, was doubtful as the evidence of marking their presence was not proved and that legal notices dated 18.08.2004 were not served on the Respondent. The High Court, thus, went on to uphold the decree passed by the courts below, noting that in view of the acquisition proceedings, the alternate relief of recovery of earnest money was legally correct. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>C.1 WHETHER TIME WAS THE ESSENCE OF THE CONTRACT?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>24. Hence on the dual factual premise that it was the clear intention of the parties to treat time as the essence of the contract and that there was an undue delay on behalf of the Respondent to institute the suit, the relief of specific performance cannot be granted. We must clarify that this finding also holds true for the land subsequently released in favor of the Appellants. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>C.2 WHETHER IT WAS PROVED THAT APPELLANTS WERE WILLFULLY AVOIDING PERFORMANCE OF THEIR CONTRACTUAL OBLIGATIONS?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>26. A bare reading of this clause, in our opinion, clearly spells out the intention of the parties in respect of Respondent’s liability for obtaining the required NOC. We are bound to interpret the contractual terms in their literal sense and hence, we expressly reject the Respondent’s contention that this clause should be interpreted to construe that his obligation was limited to NOCs which he could obtain unilaterally. Additionally, since Respondent has led no evidence to indicate that he took any proactive steps to obtain the purported NOC necessary to execute the sale deed, we must hold that the plea of non­cooperation against the Appellants in respect of obtaining the NOC are not made out by the Respondent.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>C.3 WHETHER RESPONDENT WAS ENTITLED TO RECOVERY OF EARNEST MONEY?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>31. Firstly, we may refer to Section 22 of the Specific Relief Act of 1963 (hereinafter, ‘SRA Act’) which provides that any person suing for the specific performance of the contract for the transfer of property may ask for ­ (a) possession or partition and separate possession of the property in addition of such performance OR (b) such person may seek any other relief to which he is entitled to “including the refund of any earnest money or deposit paid or made by him” in case his claim for specific performance is refused. However, sub­Section (2) thereof puts a caveat that the abovementioned reliefs shall not be granted by the court unless “it has been specifically claimed”. The proviso to subSection (2) further says that even if such relief was not specifically claimed in the plaint, it is the discretion of the Court to permit the plaintiff to amend the plaint “at any stage of the proceedings” and allow him to include the claim for refund of the earnest money or deposit paid</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Applying these principles to the facts of the case in hand, we find that the Respondent has neither prayed for the relief of refund of earnest money in the original plaint nor he sought any amendment at a subsequent stage. In the absence of such a prayer, it is difficult to accept that the courts would suo­moto grant the refund of earnest money irrespective of the fact as to whether Section 22(2) of SRA Act is to be construed directory or mandatory in nature.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>35. In our considered opinion, Section 74 of Contract Act primarily pertains to the grant of compensation or damages when a contract has been broken and the amount of such compensation or damages payable in the event of breach of contract, is stipulated in the contract itself. In other words, all pre­estimated amounts which are specified to be paid on account of breach by any party under a contract are covered by Section 74 of Contract Act as noted by this court in Kailash Nath Associates v DDA12. In Fateh Chand13 , the Constitution Bench ruled that Section 74 dispenses with proof of “actual loss or damage” and attracts intervention by Courts where the pre­estimated amount is ‘penal’ in nature.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Hence, in a scenario where the contractual terms clearly provide the factum of the pre estimate amount being in the nature of ‘earnest money’, the onus to prove that the same was ‘penal’ in nature squarely lies on the party seeking refund of the same. Failure to discharge such burden would treat any pre­estimated amount stipulated in the contract as a ‘genuine pre­estimate of loss’.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>36. The Respondent in the instant case has neither pleaded for refund of the earnest money nor has he claimed any damages or penalty from the Appellants. From the perusal of the records, it is conspicuous that Respondent never raised any concern that the pre estimated amount was ‘penal’ in nature and instead his sole objective was to gain titular rights over the Concerned Property on the strength of Sale Agreements.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>37. In light of the above discussion, we must conclude that the decree granted by the courts below was hinged on a logical fallacy wherein the Appellants were held to be unjustly enriched on the premise that the contract was rendered impossible to perform due to acquisition proceedings. On the contrary, the contract automatically stood terminated as per the stipulated contractual terms. The Sale Agreements should have been rightly held to be terminated instead of being declared impossible to perform. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>38. Furthermore, we deem it appropriate to hold that the forfeiture was justified and within the confines of reasonable compensation as per Section 74 of Contract Act in light of the fact that during the entirety of proceedings – firstly the nature of forfeiture was never contested by the Respondent and secondly the Respondent never prayed for the refund of earnest money. Consequently, the judgments rendered by the Courts below deserve to be set aside and the suit is liable to be dismissed. Ordered accordingly.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>39. The appeal stands allowed along with any pending applications in the above terms. No order as to costs. …</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2de03fb62abdd2b0869a1d0fd5cf69cc.jpeg', 'e4368266cd7043d1f4e786257ccd8e85.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-03', 1, '', '', '2022-12-15 11:34:26', '2023-01-03 12:18:20'),
(2509, 'FgEu4HDTYbKvaixUAgcvpiqmm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Rejection of earlier bail petition does not bar the Court from considering further developments on different considerations in a successive bail petition subject to gravity of the offence. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ashoka Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 10974 of 2022 decided on 14 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This petition is filed under Section 439 of Cr.P.C., seeking\r\nregular bail of the petitioner/accused No.2 in Crime No.313/2021\r\nof Hunusur Rural Police Station, Mysuru District, which is\r\nnumbered as S.C.No.76/2022 on committal and the offences\r\ninvoked against him under Sections 120-B, 302, 201 read with\r\nSection 34 of IPC</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The present petition is a successive bail petition filed\r\nby accused No.2, wherein, it is contended that the motive is\r\nattributed to accused No.1 only that he had illicit relationship\r\nwith the wife of the deceased. According to CW-5, accused No.1\r\nsaid to have called the deceased to his land by phone on\r\n27.11.2021 and not by this petitioner. The allegation is also that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">accused No.1 said to have assaulted with club on head, which is\r\nthe possible view of cause for death and no overt act is\r\nattributed to this petitioner. The recovery of dead body is not at\r\nthe instance of this petitioner or accused No.1 because the place\r\nof burial of dead body was known to the complainant and many\r\nvillagers, which is mentioned in the FIR. Therefore, the\r\nrecording of voluntary statements of accused and showing\r\nrecovery which was already known to many persons and the\r\nPolice, the same is not admissible. For burial of dead body,\r\nthere is no material as to presence of this petitioner at the\r\nrelevant point of time and absolutely no incriminating\r\ncircumstances against the petitioner. Though previously, the\r\nbail petition was considered by this Court, individual role of the\r\npetitioner was not considered and therefore, now the petitioner\r\nbeing innocent and no prima facie case, he is entitled for bail.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. This Court earlier rejected the bail petition on the\r\nground that the motive for committing the murder that accused\r\nNo.1 was having illicit relationship with the wife of the deceased.\r\nThe dead body has been recovered at the instance of accused\r\nNo.1 and accused No.2, the same is a discovery under Section\r\n27 of the Evidence Act. This Court also has taken note of the\r\nstatements of CWs.1 and 2, who have last seen witnesses.\r\nApart from that, CW.6, who had dug the pit at the instance of\r\naccused No.1 and his statement, was also recorded. Further, it\r\nis observed that merely because petitioners are in judicial\r\ncustody for more than six months cannot be a ground to enlarge\r\nthem on bail in a heinous offence of committing the murder and\r\ntaking the life of a person.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">20. Having read the contents of the complaint also, it is\r\nvery clear that this petitioner was there along with accused No.1\r\nand also the deceased in the previous day and this aspect also\r\nhas been considered in the earlier bail petition and this Court\r\ntaken note of the statement of CWs.1 and 2, who have last seen\r\nthis petitioner along with deceased and accused No.1. Whether\r\nit was in the knowledge of others or not and not in the exclusive\r\nknowledge of this petitioner is a matter of trial. When the case </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is rests upon the circumstantial evidence, CWs.1 and 2, who\r\nhave witnessed this petitioner along with deceased and accused\r\nNo.1 that both of them were consuming the alcohol in the\r\nprevious day and within two days of the same, the body was\r\nrecovered at the instance of this petitioner and accused No.2.\r\nThe principles laid down in the judgments referred supra are\r\nconsidering the material on record after the evidence while\r\nconsidering the matter on merits with regard to whether it was\r\nin an exclusive knowledge or not. Now, the prima facie material\r\ndiscloses that the body was discovered at the instance of this\r\npetitioner and accused No.2. Apart from that, CWs.1 and 2 have\r\nlast seen this petitioner along with the deceased as well as\r\naccused No.1, the material is also placed before the Court. In\r\naddition to that, CW.6, who dug the pit at the instance of\r\naccused No.1 to bury the body, also, given the statement. It is\r\nalso emerged in the material that during the course of\r\ninvestigation that the deceased was called by accused No.1 and\r\naccused No.1 in turn called this petitioner and instructed him to\r\nbring the alcohol in furtherance of conspiracy which both of them\r\nhave conspired to eliminate the deceased. When such materials </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">are available before the Court and when accused No.1 hatched a\r\nplan along with accused No.2 to eliminate the husband of CW.5,\r\nwith the help of JCB machine, dug the pit near the land of\r\naccused No.1 and removed the mud from the pit and liquor was\r\nalso secured through this petitioner and after committing the\r\nmurder this petitioner and accused No.1 cremated the dead body\r\nin the pit which was dugged through P.W.6. Hence, there is\r\nprima facie material to invoke Sections 120-B, 302, 201 read\r\nwith Section 34 of IPC.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. This Court would like to rely upon the judgment of\r\nthe Apex Court in the case of Kumer Singh v. State of\r\nRajasthan and another reported in 2021 Crl.L.J. 4244,\r\nwherein, the Apex Court while dealing with the bail matter with\r\nregard to sharing of common intention and common object\r\nparticularly in paragraph No.14 of the judgment held that, it is\r\nrequired to be noted that all the accused are charged for the\r\noffences punishable under Sections 302 and 307 read with\r\nSection 149 of IPC. At this stage, the individual role of the\r\naccused is not required to be considered when they are alleged <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to have been the part of the unlawful assembly. Merely because\r\nthey were armed with lathis cannot be a ground to release them\r\non bail, in the facts and circumstances of the case, more\r\nparticularly when they are charged for the offences punishable\r\nunder Sections 302 and 307 read with Section 149 of IPC as well\r\nas Sections 147 and 148 of IPC.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">22. Hence, I do not find any merit in the petition to grant\r\nbail in favour of this petitioner in a successive bail petition. No\r\nfurther development has been made out and no different\r\nconsiderations also found to exercise the discretion.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>The bail petition is rejected.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '36dfd13f6af45bd74ec19fb592a33252.JPG', '4d8ffc8b7674f6bbf27969cb147e09c7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-02', 1, '', '', '2022-12-15 12:10:23', '2023-01-02 12:41:19'),
(2510, 'ycBBANaMyJO88fELyDbP8g1GZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'While considering the application to engage private Prosecutor under Section 302 Cr.P.C, the Magistrate must form an opinion as to whether cause of justice would be subserved. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nitisha Saikia Das Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 103465 of 2022 decided on 15 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. In the proceedings initiated for the offences\r\npunishable under Sections 354(D) and 504 of IPC, the\r\nde facto Complainant filed an application under Section 302\r\nof Cr.P.C to engage the counsel of her choice to prosecute\r\nthe case. The prosecution filed objection to the application\r\nfiled by the de facto Complainant. The learned Magistrate by\r\nimpugned order rejected the application against which the\r\npresent petition is filed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. In the proceedings initiated for the offences\r\npunishable under Sections 354(D) and 504 of IPC, the de\r\nfacto Complainant filed an application under Section 302 of\r\nCr.P.C seeking permission to engage service of the counsel\r\nof her choice so as to prosecute the case on the ground that\r\nthe prosecution has not taken effective steps for tendering\r\nevidence.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The learned Magistrate was required to form\r\nan opinion as to whether cause of justice would be\r\nsubserved and if an opinion is formed that to secure the\r\nends of justice, the learned Magistrate is required to grant\r\npermission. In the instant case, the learned Magistrate\r\nwithout considering the provisions of Section 302 of Cr.P.C\r\nand also ratio laid down by the Hon’ble Supreme Court in\r\nthe case of Amir Hamza Shaikh supra, has passed the\r\nimpugned order without assigning any reasons and the same\r\nis contrary to Section 302 of Cr.P.C. Hence, the impugned\r\norder passed by the learned Magistrate is not sustainable.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i) The Criminal petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd7ed03652ff8cbd5eb1ed54de60df852.jpeg', 'c4f1bc6cb114e3be527e56ff8cf1b54f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-03', 1, '', '', '2022-12-15 13:00:37', '2023-01-03 03:20:58'),
(2511, 'lCc9SFQHyu29aJSyTKgBJqu42', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Excise Act. Police Officer entering and conducting search without search warrant or without recording the reasons for dispensing with obtaining search warrant is impermissible. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M Sudarshan Gouda Vs The Deputy Commissioner of Excise and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 104723 of 2022 decided on 18 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. FIR was registered for the offence punishable under\r\nSection 36 of the Karnataka Excise Act, 1965 and Rule 11A of\r\nthe Karnataka Excise Licences (General Conditions) Rules, 1967\r\nalleging that on surprise visit to the shop premises of the\r\npetitioner – accused who is granted with CL-2 license, it was\r\nfound that the petitioner was selling liquor over and above the\r\nmaximum retail price and also it was found that the petitioner –\r\naccused had permitted the customers to consume alcohol in the\r\nshop premises, which was prohibited under the licence\r\nconditions. Taking exception to the same, this petition is filed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">6. Section 54 of the Karnataka Excise Act, 1965\r\nspecifies that if an officer-in-charge of a police station has\r\nreason to believe that an offence under Section 36 of the Act is\r\nbeing or is likely to be committed and that a search warrant\r\ncannot be obtained without affording the offender an\r\nopportunity of escape or of concealing evidence of the offence,\r\nhe may after recording the grounds at any time search any\r\nplace and seize anything found therein. In the instant case, the\r\npolice officer in-charge without search warrant or without\r\nrecording the reasons for dispensing with obtaining search\r\nwarrant has entered and conducted the search of the shop\r\npremises which is impermissible. Section 51 of the Act is not\r\napplicable for search and seizure in respect of an offence\r\npunishable under Section 36 of the Act and Rule 2 of the Rules\r\ncannot override the provision contained in Section 54 of the\r\nAct. The registration of FIR is in violation of Section 54 of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Act, 1965 and is not sustainable in law.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\ni) Criminal petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1832a5d312e4f51897d92e9be615a873.jpeg', 'f0791a94bd9cb552d9ecbcb79268c4c3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-16', 1, '', '', '2022-12-15 13:15:05', '2022-12-16 07:24:35'),
(2512, 'pmNHLx8GvRLMRWLOw7uTT90eh', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Even the illegitimate children of the deceased are entitled to compensation under the Motor Vehicles Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">M. Rathna and others Vs B. Chandra Shekhar and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">M.F.A. 3763 of 2016 decided on 14 December 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice H.P. Sandesh.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">M.F.A.Nos.3763/2016 and 4518/2016 are filed by the claimants-wife and son of the deceased questioning the dismissal of M.V.C.No.5701/2012 and allowing M.V.C.No.7169/2012 dated 27.01.2016 and M.F.A.No.4718/2016 is filed by the claimantsparents of the deceased questioning the quantum of compensation awarded in M.V.C.No.7169/2012 dated 27.01.2016 on the file of the Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru (for short ‘the Tribunal’).</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">4. The factual matrix of the case of the claimants in both the appeals that on 23.08.2012 at about 7.30 a.m., the deceased Mallikarjuna was proceeding in a car and reached near Jain School Jakkasandra, Bengaluru-Kanakapura road, at that </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">time, the driver of the Maxi cab came from Kanakapura towards Bengaluru in a rash and negligent manner with high speed and dashed against the car of the deceased, due to which, the deceased sustained severe injuries and succumbed to fatal injuries on the spot and immediately he was shifted to Rajarajeshwari hospital wherein postmortem was conducted. Hence, made the claim petitions before the Tribunal.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">20. Having heard the respective counsel and also on perusal of the material available on record, the points that would arise for consideration of this Court are:</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(1) Whether the Tribunal has committed an error in rejecting the claim petition filed in M.V.C.No.5701/2012 in coming to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">conclusion that the claimants are not the legal heirs of deceased Mallikarjuna and no locus to maintain petition under Section 166 of the M.V.Act?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(2) Whether the claimants in M.V.C.No.5701/2012 are also entitled for the compensation?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(3) Whether the Tribunal has committed an error in not awarding just and reasonable compensation?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(4) What order? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>Points No.1 and 2</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">21. Having heard the respective counsel and also on perusal of the material available on record, it discloses that the claimants in M.V.C.No.5701/2012 claims that petitioner No.1 is the wife and petitioner No.2 is the son of the deceased Mallikarjuna and in the claim petition, the age of the deceased is mentioned as 40 years and he was doing real estate business and his income was Rs.20,000/- per month and it is their claim that the deceased Mallikarjuna was driving the car bearing <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">registration No.KA05-C-5778 and when he was proceeding near Bengaluru-Kanakapura road, at that time, the driver of the cab who came from Kanakapura towards Bengaluru side driven the same in a rash and negligent manner and dashed against the car of the deceased Mallikarjuna due to which, he had sustained grievous injuries and succumbed to the said injuries at the spot.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">28. In the case on hand also having considered the principles laid down in the judgments referred supra and also having taken note of the material on record I have already pointed out that it is the claim of the claimants that they are the wife and son of the deceased but no material is placed to substantiate the same and only relies upon the document at Ex.P13-affidavit filed by the deceased himself on 25.05.2010 wherein he declared that first claimant as his wife and also stated that she gave birth to the male child i.e., the second claimant on 08.08.2006 that is prior to the marriage of the deceased with his first wife i.e., Manjula as her marriage was held in the year 2007 with the deceased that there was a cohabitation between the first claimant and the deceased and in another document that is genealogical tree dated 15.05.2012, it is stated that the first claimant is his wife and second claimant is his son and also the Admission Register Extract which is marked as Ex.P7 came into existence only after the death of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">deceased but the date of birth of the second claimant is mentioned as 08.08.2006 and when the deceased has declared that the first claimant and second claimant are the wife and son of the deceased prior to his death, but the claimants in M.V.C.No.7169/2012 marked Ex.P11 cancellation of sale agreement wherein the deceased also party to the registered cancellation agreement and signature found in the said document not tallies with the signature found in Ex.P13-affidavit allegedly executed by the deceased and the said document is dated 26.05.2011 and this Court can compare the same under Section 73 of the Evidence Act and hence, the Ex.P13 produced by the claimants in M.V.C.No.5701/2012 cannot be accepted. Apart from that no document is produced that they were residing together at the time of the accident. The body was handed over to the parents but she claims that she performed the last rituals along with his parents but no document is placed to that effect. In addition to that her marriage was performed with one Krishnamurthy in the year 1996 and the same is not disputed and admitted the same in M.C. proceedings. It is also her claim that the second claimant was born in 2006 with the relationship </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of deceased. In 2006, they have not separated and decree of divorce obtained in the year 2010 and hence, it is clear that the said relationship is only illicit relationship as a result, the second claimant was born under the said relationship. Though contend that both were in live in relationship but there was a subsisting marriage between her and her first husband and the deceased marriage was also subsisting with his wife Manjula and after the divorce also no marriage was performed between both of them and hence, the first claimant is not entitled for any relief and she has created the documents at Ex.P7, P8 and P13 and an attempt is made to show that she was dependent on the deceased and the same is also not substantiated except the fact that she had relationship with him as a result second claimant was born and hence the child cannot be penalized for the act of the deceased and the first claimant and hence, it requires modification of the judgment and award passed in M.V.C.No.5701/2012 in relation to the second claimant who is dependant of the deceased and the fact remains that the second claimant is living with the first claimant and even illegitimate child is also entitled to compensation under Section 166 of M.V. Act as the legal </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">representative as discussed earlier hence, answered both the points accordingly</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Point No.3</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">30. The claimants are entitled for an amount of Rs.33,000/- towards loss of estate and funeral expenses and apart from that they are entitled for Rs.40,000/- each towards loss of love and affection which comes to Rs.1,20,000/- (40,000x3) since the claimants are three in number and hence, in all the claimants are entitled for an amount of Rs.13,28,940/-. Thus, this point is answered accordingly.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Point No.4</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">ORDER</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(i) The appeals are allowed in part. </span></p>', '4d56b2efa16f8f825ee9921f125ebf91.JPG', 'a597e76460a91bdd86edd2f5e4ac2633.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-16', 1, '', '', '2022-12-15 20:11:13', '2022-12-16 03:21:50'),
(2513, 'mkfkkj0wMtJIiGKmQiE78AKkd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Association providing recreational activities such as Rummy Card Games, Chess, Carom, Billiards/Snooker and other Skilled games only to its members is not required to obtain license under the Karnataka Police Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Siragalli Lakshmidevi Recreation Club Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 22854 of 2022 decided on 25 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.S. Hemalekha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner in this writ petition is seeking\r\ndirection to the respondents to declare that the\r\npetitioner is not required to obtain any permission or\r\nlicence under the provisions of the Licensing and\r\nControlling of Places of the Public Amusement Order\r\nto Play Indoor Games such as Rummy (Card Games),\r\nChess, Carom, Billiards/Snooker, Skilled games and\r\nother indoor and outdoor games for the benefit of all\r\nits members and sought for a mandamus directing the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respondents not to insist the petitioner to obtain\r\nlicense from the provisions of Licensing and\r\nControlling of Places of the Public Amusement Order\r\nwith the Recreational Activities to be carried on by the\r\nmembers of the petitioner association situated at\r\nT.Megadahalli Grama, Talakadu Hobli, T.Narasipura\r\nTaluk, Mysore District.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 2. Brief facts leading to the filing of this\r\nwrit petition are that, petitioner is a recreation\r\nclub registered under the Karnataka Societies\r\nRegistration Act, 1960 with the Registrar of\r\nSocieties, Mysore vide registration\r\nNo.DRMY/SOR/22/2022-2023 dated 13/4/2022.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. According to the petitioner after\r\nregistration, the petitioner approached the respondent\r\nNos.2 to 5 to permit recreational activities i.e., indoor\r\ngames such as Rummy (card games), Chess, Carom, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Billiards/Snooker, Skilled games and other indoor and\r\noutdoor games to all its members within the premises\r\nof its association. However, the respondents have\r\nrefused to permit the petitioner to run the recreational\r\nactivities stating that they require licence to carry out\r\nthe activities under the provisions of Karnataka Police\r\nAct and are creating unnecessary obstructions for\r\nopening the recreation association and to run the\r\nrecreational activities by the petitioner/recreation club\r\nto its members.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">10. In light of the catena of judgments stated\r\nsupra and in view of sub-clause (14) and (15) of\r\nSection 2 of the Karnataka Police Act, 1963 where the\r\nlicencing of any place of the said order is required only </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">when it is a place of public amusement or it is public\r\nentertainment.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. In the present case, the club is an\r\nassociation for providing recreational activities to its\r\nmembers and the members of the public are not\r\nentitled to demand any entrance either freely or on\r\npayment of any sum and the entry is restricted as per\r\nthe terms of the byelaws to its members only.\r\nTherefore, in light of the settled proposition of law\r\nthat it is not necessary to obtain any permission or\r\nlicence for the purpose of carrying on recreational\r\nactivities by any club or association as observed in the\r\njudgments stated supra, the respondent police\r\nauthorities insisting upon the petitioner to get licence\r\nunder the provisions of the Karnataka Police Act, is\r\narbitrary and unreasonable and calls for interference.\r\nThe authorities concerned should not act with a\r\npresumption that every society or association or club</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">registered for the purpose of running the club will be\r\nindulging in unlawful activities and with the realization\r\nthat the power of surveillance and raids is to be used\r\nin bona fide exercise of powers to enforce the\r\nprovisions of the Act, however, it is open for the\r\nrespondent-police authorities to verify and find out the\r\nnature of the activities, if need arises, so that the club\r\npremises may not be used for any illegal activities.\r\nConsequently, the respondents are directed not to\r\ninterfere with the lawful activities of the petitioner’s\r\nassociation.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. With the aforesaid observation, the writ\r\npetition stands disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4210ba1458f7cef89ae5d54694d49ee4.JPG', 'e8b0e786618213a547ae551e9eef9b1e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2022-12-16', 1, '', '', '2022-12-15 20:16:12', '2022-12-16 11:03:50');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2515, '51BDLqY6lcXmkjfgQkC83YQsH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Order XVIII Rule 3 of CPC. Rebuttal evidence is permissible only in respect of issues casting onus on the other side and the said opportunity cannot be utilized to fill up the lacuna in the evidence of the party leading evidence first.Karnataka High Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Arun Nagaraj and others Vs Syed Idris and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. 38656 of 2016 decided on 13 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Facts leading to filing of this petition narrated briefly\r\nare, petitioners had filed O.S.No.4952/2007 before the\r\nTrial Court seeking the relief of specific performance. In\r\nthe said suit, the contesting defendants had filed their\r\nwritten statement and opposed the suit claim. The Trial\r\nCourt had framed as many as 13 issues in the said suit.\r\nSince the issues which were framed in the suit cast the\r\nburden on both the parties to the prove the same, after\r\ncompletion of plaintiffs evidence on several issues, the\r\nplaintiffs had filed a memo on 10.07.2012 reserving his\r\nright to lead rebuttal evidence under Order XVIII Rule 3\r\nCPC after completion of defendants side evidence. The said\r\nmemo was taken on record by the Trial Court. Thereafter,\r\nthe defendants had completed their evidence and when the\r\nsuit was posted for the purpose of arguments, IA nos.15 & <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16 were filed by the plaintiffs to re-open the case and to\r\npermit the plaintiffs to lead rebuttal evidence. The said\r\napplications were opposed by the defendants by filing\r\nobjections and the Trial Court vide the order impugned\r\nhad dismissed the said applications and being aggrieved\r\nby the same, the plaintiffs are before this Court.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. In the case on hand, since the issues framed by the\r\nTrial Court cast burden on both the parties to prove the\r\nissues, the plaintiffs after completing their evidence on\r\nsome issues have filed a memo reserving their right to lead\r\nrebuttal evidence after the defendants completed their part\r\nof the evidence. The said memo dated 10.07.2012 was\r\ntaken on record by the Trial Court, and thereafter, the\r\ndefendants were called upon to lead evidence and\r\naccordingly after completion of defendants evidence, when\r\nthe suit was posted for the purpose of final arguments, the\r\napplications IA nos.15 & 16 have been filed by the\r\nplaintiffs to re-open the case and to permit them to lead\r\nrebuttal evidence.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">12. In a case wherein there are several issues and when\r\nthe onus to prove certain issues is on the other side, the\r\nparty leading evidence first, always has a right to lead\r\nrebuttal evidence, provided he reserves such liberty before\r\nthe other party commences its evidence. It is for the party\r\nleading evidence first to decide whether he will lead\r\nevidence on all issues or only on issues on which onus to\r\nprove the same is on him or he may reserve his right to\r\nlead rebuttal evidence after the other party completes his\r\nevidence. Rebuttal evidence is permissible only in respect\r\nof such issues on which onus to prove is on the other side </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and the said opportunity cannot be utilized to fill up the\r\nlacuna in the evidence of the party leading evidence first.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>13. In the present case, the plaintiffs have filed a memo\r\nbefore the defendants had commenced their evidence\r\nreserving their right to lead rebuttal evidence, and\r\ntherefore, the Trial Court was not justified in rejecting the\r\napplications - IA nos.15 & 16. Under the circumstances,\r\nthe impugned order cannot be sustained. Accordingly, the\r\nfollowing order:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">14. The writ petition is allowed.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '76dfb34c63c49a42828de9e939f165bf.jpeg', '9beb41b6382e668e669e201231119139.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-02', 1, '', '', '2023-01-01 12:01:47', '2023-01-02 09:16:30'),
(2516, 'oSCA1wLEvaz5Wv5tmTpKvSP7v', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit cannot be dismissed simply because Specified Value as contemplated under the Commercial Courts Act is not mentioned in the plaint. Court can order valuation and return the plaint if the valuation is more than Rs. three lakhs. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gangadharappa Munindra Kumar Vs M/S. Eaglesight Media Private Limited and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 545 of 2022 decided on 13 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.I. Arun.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The suit pertains to intellectual property. However, as\r\nthe prayer pertains to injunction, the suit has been valued at\r\none thousand rupees as per Section 26(c) of the Karnataka\r\nCourt Fees and Suits Valuation Act, 1958, under Court Fee of\r\nRs.25/- is paid on the plaint.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The case of the petitioner is that the suit pertains to\r\ninjunction relating to an intellectual property and the value of\r\nthe said right is more than three lakh rupees and\r\nplaintiff/respondent No.1 was required to file the original suit\r\nbefore the Commercial Court and the trial Court has no\r\njurisdiction to try the suit and it ought to have dismissed the\r\nsame pursuant to the memo filed by the petitioner herein and it\r\nerred in not doing so.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Per contra, respondent No.1 submits that what has been\r\nprayed in the suit is only an injunction and as per provisions of\r\nKarnataka Court Fees and Suits Valuation Act 1958, it is valued\r\nat one thousand rupees and Court Fee of Rs.25/- is paid on the\r\nsame and as valuation is less than three lakh rupees, the trial\r\nCourt gets its jurisdiction to try the case and that there is no\r\nerror in the impugned order and it prays for dismissal of the\r\npetition.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The subject matter of the suit being one related to\r\nintellectual property qualifies as a commercial dispute as per\r\nSection 2(c)(xvii) of the Act. The question that arises for\r\nconsideration is does it satisfies the Specified Value as per the\r\nAct for Commercial Courts to get the jurisdiction or not and if\r\nyes then is the trial Court required to dismiss the suit as\r\ncontended by petitioner/defendant No.3</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Reading of the provisions of the Act shows that for the\r\nCommercial Court to have jurisdiction to try a matter, firstly,\r\nthe lis should be a commercial dispute and the Specified Value\r\nshould be more than three lakh rupees, if not the regular\r\nCourts shall have the jurisdiction to try the case.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. As per Section 2(i) of the Act, the Specified Value in\r\nrelation to commercial dispute shall mean the value of the\r\nsubject matter in respect of a suit as determined in accordance\r\nwith Section 12 of the Act and if that value is more than three\r\nlakh rupees, the Commercial Courts will have jurisdiction. How\r\nSpecified Value has to be determined in respect of intellectual\r\nproperty has been answered in Section 12(1)(d) of the Act and\r\naccording to it, when the relief sought in the suit relates to an\r\nintangible right, the market value of the said rights as\r\nestimated by the plaintiff shall be taken into account for\r\ndetermining the Specified Value. Thus, irrespective of the\r\nnature of the prayer, whether be it for a declaration or recovery <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">f money or bare injunction or any other prayer the specified\r\nvalue depends upon the market value of the intangible right as\r\nestimated by the plaintiff and the jurisdiction of the Court is\r\ndetermined accordingly. Thus, under the facts and\r\ncircumstances of the case, the prayer sought pertains to a\r\nintangible right and it is a suit for bare injunction and the suit is\r\nvalued at one thousand rupees for the purpose of paying the\r\nCourt Fee in accordance with Karnataka Court Fees and Suits\r\nValuation Act, 1958. However, for the purpose of jurisdiction,\r\nthe Specified Value as contemplated under Section 12 of the\r\nAct is not mentioned in the plaint and the jurisdiction of the\r\nCourt depends upon the Specified Value of the intangible right\r\nsought to be enforced by the plaintiff, which is to be\r\ndetermined by the plaintiff. The Specified Value is to be\r\ndetermined based upon the market value of the right and not\r\nthe nature of the prayer made.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">13. The trial Court has erred in not appreciating the\r\naforementioned fact and has passed the impugned order by\r\nholding that valuation as per the provisions of Karnataka Court\r\nFees and Suits Valuation Act, 1958 is less than three lakh </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">rupees and thus the jurisdiction to try the same, which is\r\nerroneous.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">14. The next question that arises for consideration is whether\r\nthe suit is liable to be rejected on the ground that the plaintiff\r\nhas failed to mention the Specified Value in the plaint?</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. The Specified Value of the plaint has to be mentioned\r\nonly to show the jurisdiction in which Court the suit should be\r\nfiled. No where in any statute it is mentioned that if Specified\r\nValue as contemplated under Commercial Courts Act is not\r\nmentioned in the plaint, the same is liable to be rejected or suit\r\nis liable to be dismissed. If the Court comes to the conclusion\r\nthat the suit has been filed in wrong Court, the same requires\r\nto be returned as contemplated in Order VII Rule 10 of CPC, to\r\nbe presented in the appropriate Court. Thus, even if the trial\r\nCourt comes to the conclusion that in the instant case it has no\r\njurisdiction to try the case, the plaint requires to be returned\r\nand the suit cannot be dismissed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. Further, in the instant case, the plaintiff has not stated\r\nthe Specified Value as contemplated under Section 12 of the Commercial Courts Act and it would be appropriate for the\r\nCourt to give an opportunity to the plaintiff to determine the\r\nmarket value of the right, as estimated by him, that he has\r\nsought to enforce in the present suit and thereby state as to\r\nthe Specified Value and thereafter take a decision whether the\r\ntrial Court has jurisdiction or not to try the case.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\ni. The impugned order dated 03.09.2022 passed\r\nin O.S.No.584/2022 by the XVIII Additional City Civil\r\nJudge, Bengaluru city is hereby set aside. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ad5e6bd784aa9d55d3aefa8a3143084d.JPG', '48a9d83ef6abb657ce12381e03ba729d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-02', 1, '', '', '2023-01-01 12:09:59', '2023-01-02 10:49:17'),
(2517, 'oK7Z6HbS9XeQEokG13ghgodqc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When the Bank rejects and cancels One Time Settlement offer, it cannot retain the amount paid under OTS and put the property to sale. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Rima Transformers and Conductors Pvt Ltd Vs Canara Bank.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 8576 of 2021 decided on 14 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court calling in question action of\r\nthe respondent/Canara Bank (‘the Bank’ for short) in notifying\r\nconduct of e-auction on 29-04-2021, further communication dated\r\n23-03-2021 whereby the Bank withdraws One Time Settlement\r\n(‘OTS’) that was offered and has also sought for a direction by\r\nissuance of a writ in the nature of mandamus to accept OTS.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 2. The facts adumbrated in the petition are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The petitioner is a private limited Company in the name and\r\nstyle of \'M/s Rima Transformers and Conductors Private Limited\',\r\nincorporated under the provisions of the Companies Act, 1956. The\r\nManaging Director of the Company will be hereinafter referred to as\r\nthe petitioner. The petitioner approaches the respondent/Bank for\r\navailing credit facility. The total loan that was availed by the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner was Rs.18 crores. The installments towards loan not\r\nhaving been made at regular intervals as was necessary, the\r\naccount of the petitioner slipped into becoming a Non-Performing\r\nAsset (‘NPA’). Negotiations were held between the petitioner and\r\nthe Bank.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The Bank after issuance of a notice to the petitioner\r\nindicating that he has been in huge default in payment of\r\ninstallments, initiated proceedings under the Securitisation and\r\nReconstruction of Financial Assets and Enforcement of Security\r\nInterest Act, 2002 (‘SARFAESI Act’ for short). Again a notice under\r\nSection 13(4) of the SARFAESI Act was issued on 22-03-2019\r\nseeking to take symbolic possession of the properties of the\r\npetitioner mortgaged with the secured creditor i.e., the Bank. It is\r\nthen the petitioner and the respondent began to talk about\r\nsettlement and OTS comes to be offered by the petitioner and\r\naccepted by the respondent/Bank. The first offer of OTS was\r\naccepted by the Bank on 28-08-2019 indicating certain amount in\r\nthe communication. This was replied to again by the petitioner </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">accepting the terms and conditions mentioned in the letter dated\r\n28-08-2019 which directed payment of certain amount.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. The afore-narrated fact of the petitioner availing loan with\r\nthe respondent/Bank is not in dispute. Facts being narrated from\r\nthe date of the account becoming default and its aftermath would\r\nsuffice to be noticed. After availing the loan, due to non-payment of\r\ninstallments, the account slips into becoming a NPA. Owing to the\r\nsaid development, the respondent/Bank on 15.11.2018 issues a\r\ndemand notice under Section 13(2) of the Act demanding a sum of\r\nRs. 27,22,13,662.02. When no amount was paid to the Bank in\r\nterms of the demand, a notice under Section 13(4) of the Act was\r\nissued by the Bank on 22-03-2019 indicating that it is putting the\r\nproperty to auction. This, the petitioner replies to the Bank\r\nrequesting for a OTS of the amount.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The entire issue now revolves round the order of withdrawal of OTS.\r\nA perusal at the order of withdrawal of OTS becomes clear that it\r\nbears no reasons as to why OTS is withdrawn. The only reason\r\nindicated is continuance of SARFAESI action for recovery of residual\r\nliabilities and the present liability as on the said date was Rs.63082\r\nlacs. according to the order withdrawing OTS. No other reason is\r\nindicated as to why OTS is cancelled. It is also to be noticed that\r\npayment also is not indicated in the communication withdrawing\r\nOTS. But, it is not in dispute that the petitioner has paid Rs.18.90\r\ncrores to the Bank. The Bank would not stop at cancellation of OTS\r\nbut would seek to put other properties of the petitioner to auction\r\nwhich are depicted as schedule properties in the petition. It is at\r\nthat juncture the petitioner knocks the doors of this Court in the\r\nsubject petition.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. The learned senior counsel appearing for the respondent\r\nwould submit that the amount was not paid in full, interest had to\r\nbe paid and, therefore, exercising liberty that it had reserved to\r\nitself while offering OTS, the OTS comes to be cancelled. No fault\r\ncan be found with the said action. This submission, in the peculiar <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">facts of this case, is unacceptable. It is not in dispute that the Bank\r\nis a State under Article 12 of the Constitution of India. Even in a\r\ncommercial transaction of this kind, it has a duty to act fairly. It is\r\nnot in dispute that the petitioner has deposited Rs.18.90 crores by\r\nselling his property and the Bank retains Rs.18.90 crores and\r\nproceeds to auction other properties of the petitioner on the ground\r\nthat the loan is not cleared. It would have been a circumstance\r\naltogether different if the petitioner had defaulted in OTS. Before\r\nthe deadline that was stipulated by the Bank on agreed terms and\r\nconditions which was on 28-02-2021 the petitioner had deposited\r\nRs.18.90 crores and later on 26-03-2021 deposits Rs.52/- lacs and\r\non 10-05-2021 deposits another Rs.25/- lacs. All these amounts\r\nare accepted by the Bank. In one breath amount is accepted and in\r\nthe other SARFAESI proceedings are instituted by cancelling OTS. If\r\nthe Bank had cancelled OTS it could not have retained the amount\r\npaid under OTS and put the property of the petitioner to sale as\r\nwell. This action of the Bank does not behove its status of being a\r\nState under Article 12 of the Constitution of India. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. The contention of the learned senior counsel for the\r\nrespondent that the petitioner has suppressed material facts and,\r\ntherefore, he is to be non-suited is also unacceptable, as in the\r\nconsidered view of this Court, the suppression of fact is not so\r\nmaterial that the petitioner will have to be thrown out of the doors\r\nholding that the petitioner has not approached this Court with clean\r\nhands. The contention is advanced only to cover up the folly of the\r\nBank for having acted in such an unfair manner. The judgments\r\nrelied on by the learned senior counsel qua the petitioner that if the\r\nparty comes to the Court with unclean hands, the petition should\r\nnot be entertained would not be applicable to the fact situation.\r\nThere can be no qualm about the principles laid down by the Apex\r\nCourt in the judgment in the case of ABN AMRO BANK (supra).\r\nBut, its inapplicability is what declines its acceptance.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. The other submission made by the learned senior counsel\r\nfor respondent is that the Court exercising its jurisdiction under\r\nArticle 226 of the Constitution cannot direct the Bank to offer OTS\r\nor extend the offer that was made for OTS. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The borrower therein who was offered OTS not once but twice had\r\nnot availed the same by making any payment but approaches the\r\nHigh Court seeking a direction to extend the offer of OTS. The High\r\nCourt had directed. It is against the said direction the Bank had </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">knocked the doors of the Apex Court. The Apex Court holds that\r\nCourts exercising jurisdiction under Article 226 of the Constitution\r\ncannot direct extension of OTS. But, the facts obtaining in the case\r\nat hand are entirely different. The petitioner’s offer of OTS was\r\naccepted by the Bank with certain conditions. The petitioner accepts\r\nthe terms and conditions. Before the deadline fixed by the Bank as\r\n28-02-2021 for compliance of OTS conditions, the petitioner had\r\ndeposited Rs.18.90 crores. and the Bank later unilaterally\r\nwithdraws OTS. It is in these facts the judgment of the Apex Court\r\nwould not become applicable.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. The petitioner becomes entitled to the prayer that is\r\nsought in the peculiar facts of this case, as the Bank has been\r\nabsolutely unfair to the petitioner. Whether a defaulter should be\r\nshown any indulgence would have been the question if the\r\npetitioner had not complied with OTS or not fulfilled any condition\r\nof OTS. According to the petitioner, he has paid the entire amount\r\nthat was indicated in the OTS by selling his property that he had\r\nmortgaged with the Bank with the permission of the Bank.\r\nTherefore, the Bank having accepted the offer of the petitioner at </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">every step, could not have wriggled out by cancelling OTS at the\r\nclimax and further could not have retained the entire amount of\r\nRs.19 crores and again sought to e-auction the other properties of\r\nthe petitioner for realizing the alleged interest, which according to\r\nthe petitioner nothing remains to be paid, but according to the Bank\r\ncertain amounts are due. It would have been open for the Bank to\r\nhave had a dialogue with the petitioner in the peculiar facts rather\r\nthan putting other properties of the petitioner to sale after having\r\nreceived Rs.19.52 crores towards the amount offered in OTS.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Writ Petition is allowed and the communication dated\r\n23-03-2021 of the respondent/Bank stands quashed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0e0574cec9258150b3aa4234e7083c04.jpeg', '01209c7ba4d98f5dc0cbb19ddd4d2a7f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-02', 1, '', '', '2023-01-01 12:19:41', '2023-01-02 06:24:40'),
(2518, '967lThvgGPwpa0KeBg3z5DKDs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SARFAESI Act, 2002. Once the sale deed is executed/confirmation of sale is made in favour of the auction purchaser, the right of the borrower to redeem the mortgage gets extinguished. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>T.S. Nataraj and others Vs State Bank of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 19756 of 2021 decided on 14 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioners are before this Court calling in question eauction notice dated 08-09-2021 which was notified to sell the\r\nproperty of the petitioners and have also sought quashment of sale\r\ncertificate issued in favour of the 4th respondent/auction purchaser\r\nand seek consequential direction to consider the case of the\r\npetitioners under the OTS scheme.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 2. Brief facts that lead the petitioners to this Court in the\r\npresent petition, as borne out from the pleadings, are as follows:-\r\n The 1st petitioner (hereinafter referred as the ‘petitioner’ for\r\nthe sake of convenience) was the proprietor of M/s Sree Mahadeva\r\nRice Mill, Tumkur as described in the schedule appended to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petition. The petitioner was into the rice processing business after\r\nthe property had fallen to his share from a family partition on\r\n21-10-2005. In order to expand his business the petitioner sought\r\nand was granted a credit limit of Rs.2 crores and a term loan of\r\nRs.30 lakhs under small scale industry category by the erstwhile\r\nState Bank of Mysore (‘the Bank’ for short). The title deeds of\r\nproperties were mortgaged with the Bank as collateral security for\r\ngrant of the said loan. Up to the year 2017-18 the loan was paid at\r\nregular intervals. It is the averment in the petition that from the\r\nyear 2017-18 in view of market fluctuations the petitioner suffered\r\nhuge loss and the account slipped into a non-performing asset and\r\nwas treated as such on 29-12-2017.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. A notice under the Securitisation and Reconstruction of\r\nFinancial Assets and Enforcement of Security Interest At, 2002\r\n(hereinafter referred to as ‘the Act’ for short) was issued upon the\r\npetitioner seeking to discharge liabilities within 60 days from the\r\ndate of the said notice. When the petitioner did not comply with\r\nthe contents of the notice, symbolic possession of the scheduled\r\nproperty was taken under Section 13(4) of the Act in terms of a </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">communication dated 31-03-2018 and later physical possession was\r\nhanded over to the 3rd respondent by order of the Deputy\r\nCommissioner dated 30-05-2019 in terms of Section 14(1) of the\r\nAct. It appears that the loan account of the petitioner was\r\ntransferred to Stressed Assets Recovery Branch of the 1st\r\nrespondent Bank who on 19-10-2020 issued a notice to the\r\npetitioner offering one time settlement. The one time settlement\r\nthat was offered on 19-10-2020 was for Rs.1,72,49,708/-. The\r\npetitioners claim that due to out-break of COVID-19 they could not\r\navail of the said settlement and that too passed by.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">11. The afore-narrated facts are not in dispute. The loan\r\navailed by the petitioner from the erstwhile State Bank of Mysore is\r\na matter of record. The loan becoming sticky and being slipped into\r\nnon-performing asset is again a matter of record. What drives the\r\npetitioners to this Court in this petition is the action of the Bank.\r\nThe fault of the Bank as alleged is selling of the property grossly\r\nundervaluing it and in violation of the Rules. Therefore, it becomes </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">germane to notice the Rule under which the petitioner seeks to take\r\nsupport for his case. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Sub-rule (5) of Rule 8 mandates that before effecting sale of\r\nimmovable property referred to sub-rule (1) of Rule 9, the\r\nauthorised officer shall obtain valuation of the property from an\r\napproved valuer in consultation with the secured creditor, fix the\r\nreserve price of the property, and may sell whole or part of such\r\nimmovable property. The mandate of sub-rule (5) is that valuation\r\nof the immovable property from an approved valuer should be first\r\nsecured and then the property should be put to sale.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. The loan, in the case at hand, had become sticky and the\r\namount that was due as on the date the Bank sought to put the\r\nproperty to auction was close to Rs.3/- crores. The first auction\r\nnotice putting the property of the petitioner to sale was in the year\r\n2018. This was called in question by the petitioners before the\r\nDebts Recovery Tribunal in S.A.No.174 of 2018. Both taking\r\npossession and putting the property to sale were called in question.\r\nInitially an interim order was granted by the Tribunal. The\r\nchallenge comes to be dismissed by an order dated 31-10-2020.\r\nThe said dismissal is not called in question by the petitioner. Later\r\nthe Bank again made efforts to sell the property by bringing down\r\nthe reserve price. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. It is now germane to notice the rights of parties as\r\ndetermined by the Apex Court and other constitutional Courts, as\r\nthe borrower is now ready and willing to clear the entire loan\r\namount and also avail of OTS facility that was earlier offered. The\r\nright of the auction purchaser has crystallized by becoming the\r\nsuccessful bidder and the sale certificate is also issued and he is put\r\nin possession. Therefore, the right of the borrower has extinguished\r\nor otherwise vis-à-vis the right of the auction purchaser, is what is\r\nto be considered.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Apex Court in DWARIKA PRASAD considers MATHEW\r\nVARGHESE, the purport of sub-section (8) of Section 13 of the Act\r\nand holds that the borrower would have the right of redemption of\r\nthe property till execution of registered sale deed. Once the sale\r\ndeed is executed, the right of redemption stands extinguished.\r\nTherefore, till the property is sold or sale confirmation is made the\r\nright of the borrower though would be nebulous is still in existence.\r\nOnce the sale deed is executed/confirmation of sale is made in\r\nfavour of the auction purchaser, the right of the borrower to\r\nredeem the mortgage gets extinguished. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Apex Court holds that the plaintiff has lost the right to sue for\r\nredemption of the mortgaged property by virtue of the proviso to\r\nSection 60 of the Transfer of Property Act no sooner that the\r\nmortgaged property was put to auction sale and sale certificate was\r\nissued in favour of the auction purchaser. The Apex Court holds\r\nthat there remained no property mortgaged to be redeemed as the\r\nredemption cannot be claimed in the abstract. The facts of the case\r\nare identical to that of the case in the afore-quoted judgments of\r\nthe Apex Court.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16. The property was put to auction on 29-09-2021 which is\r\nthe 4th time in line. Every time the petitioner had notice of the\r\nauction and did not come forward to pay the reserve price and clear\r\nthe property from it being auctioned. The defence of the Bank is\r\nthat opinions of two independent valuers were taken and sale </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">notices were affixed at conspicuous places in the asset and paper\r\npublications were also made. I conclude this only to observe that\r\nthe petitioner had notice of the auction that was taking place. Even\r\nthen the petitioner did not protest or come forward with any offer to\r\nthe Bank for clearance of the loan and therefore, the property is\r\nauctioned. The 4th respondent emerges as the successful bidder on\r\n29-09-2021 and certificate of sale comes to be issued in favour of\r\nthe 4th respondent on 07-10-2021, the same is registered before\r\nthe Sub-Registrar and the 4th respondent is put in possession of the\r\nproperty. For close to 4 years the petitioner was given opportunity\r\nto redeem the mortgage by paying the amount. OTS was also\r\noffered to the petitioner but he has not availed it. Once having\r\nfailed to avail all the benefits that the Bank wanted to grant, it\r\ncannot be seen that the petitioner now after the sale certificate is\r\nissued, to contend that he is ready and willing to pay the auction\r\namount, as also compensate the auction purchaser. The Apex\r\nCourt clearly holds that once the certificate of sale is registered, the\r\nright of the borrower to redeem the mortgage stands extinguished\r\nand thereafter there is no mortgage exists in the eye of law.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. For the aforesaid reasons, the petition lacking in merit\r\nstands dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2fcb94300257c66da913bec4651937a2.jpeg', 'd045b71f880436548d89203cf8f7df4f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-02', 1, '', '', '2023-01-01 12:31:56', '2023-01-02 03:23:25');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2519, '1Qj9ETvjlcFTirkQbYYnLTKoU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Person participating in tender process cannot question the tender conditions being contrary to industry norms. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">M/S Transasia Bio-Medicals Ltd Vs Principal Secretary Department of Health and Family Welfare and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 23192 of 2022 decided on 12 December 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice M. Nagaprasanna.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. Brief facts that lead the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:-</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The petitioner is M/s Transasia Bio-Medicals Limited (hereinafter referred to as ‘the Company’ for short). The Company claims to be incorporated under the provisions of the Companies Act, 1956 and is a leading diagnostic Company since 1985. The Company further claims to be India’s largest In-vitro Diagnostic Company offering solutions and products in Biochemistry, Hematology, Coagulation, ESR, Immunology, Urinalysis and other incidental diagnostic tests. It is a Multi-National Company with the brand name ‘Erba’ which has its footprints in several other countries. </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">3. A notice inviting tender was issued by the 2nd respondent/Karnataka State Drug Logistics and Warehousing Society which comes within the Department of Health and Family Welfare, Government of Karnataka for procurement of 1201 numbers of semi automated Bio-chemistry analyzer and 171 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">numbers of Fully Automated Biochemistry analyzer on 23-09-2020. It is the allegation of the petitioner that certain technical specifications that were sought in the tenders were not the standard conditions at par with the requirement in the industry. The requirement in the industry, according to the Company, was 200 tests per hour but the tender notification has fixed 220 tests per hour which nowhere in India such machine is installed. It is averred that there was a pre-bid meeting called and all the participants objected to the condition of 220 tests per hour in a particular machine. The Tender Scrutiny Committee did not accede to the objections of the petitioner and went on with the scrutiny of tenders and declared the 3rd respondent to be the successful bidder.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">4. On the contract being awarded to the 3rd respondent, the petitioner had immediately knocked at the doors of the Appellate Authority under Section 16 of the Karnataka Transparency in Public Procurements Act, 1999 (‘the Act’ for short). Though sub-section (3) of Section 16 mandates that appeal be decided within 30 days of its filing, it was not taken up for its consideration which led the petitioner to knock the doors of this <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court in Writ Petition No.5387 of 2021. This Court by its order dated 24-03-2021 disposed of the writ petition with a direction to the Appellate Authority to dispose of the appeal. After the said direction, the Appellate Authority has dismissed the appeal by its order dated 09-11-2022 which forms the challenge in the subject petition.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">15. The Appellate Authority is created under the statute i.e., KTPP Act. The powers and functions of the Appellate Authority are also ascribed under the Act i.e., in terms of Section 16 of the Act. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Sub-section (1) of Section 16 gives liberty to the aggrieved tenderer other than the Government to prefer an appeal before the Appellate Authority within 30 days from the date of receipt of the order i.e., issuance of work order. Discretion vested is 30 days more for preferring the appeal on sufficient cause being shown. Therefore, the appeal has to be preferred within 60 days of issuance of work order. Sub-section (2) directs that the Appellate Authority after giving opportunity of being heard would pass appropriate orders and sub-section (3) directs the Appellate Authority to decide the appeal within 30 days. The rider is, as far as </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">possible. Therefore, the Appellate Authority shall endeavour to conclude the appeal within 30 days. The prescription under subsection (3) is that the oprescribed authority, shall as far as possible dispose of the appeal within 30 days. Thugh, it cannot but be held to be mandatory, the Appellate Authority should endeavour to conclude the appeal within a certain time frame, if not 30 days, a definite time frame. It is in public interest as well, that the Appellate Authority decides the appeal within a time frame.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16. This Court is not oblivious to the fact that the Appellate Authority, would have manifold responsibilities and functions, to be performed apart from deciding the appeal under the Act. Therefore, in public interest, the Appellate Authority shall henceforth, endeavour to conclude the appeal at an outer limit of 90 days, if not 30 days, as prescribed under the statute. Beyond 90 days, if the appeal is kept pending, it would be contrary to public interest and the Authority shall record reasons in writing for not concluding the appeal within an outer limit of 90 days. It is needless to observe that the parties to the lis before the Appellate Authority shall always cooperate with such proceedings.</span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">17. The case at hand forms a classic illustration, where public interest has suffered due to the Appellate Authority keeping the appeal for its decision from 01-03-2021 up to 09-11-2022, for 21 months contrary to the prescription in the statute for a disposal in 30 days. Not for nothing that the statute prescribes that the appeal be decided in 30 days of its filing. There can be no justification whatsoever to keep the appeal pending for 630 days as against 30 days. The Appellate Authority appears to be swayed by the statute depicting disposal of the appeal in 30 days to be as far as possible. The words ‘as far as possible’ cannot be taken as ‘so far as possible’, so as to defeat the object of the statute qua limitation. Such appeals filed within the time frame under Section 16(1) of the Act shall be decided under Section 16(3) of the Act, within 90 days from its filing. The Appellate Authority shall draw up and regulate the procedure for such disposal by limiting the time for filing the objections or the rejoinder to the objections that would be filed. Compliance with the aforesaid directions would be in public interest and public interest in any action of the State is paramount.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">ORDER</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(i) The Writ Petition is dismissed with costs of Rs.25,000/- (Rupees twenty five thousand only) payable by the petitioner to the Karnataka State Legal Services Authority, within 12 weeks from the date of receipt of a copy of this order and filing an acknowledgment thereto before the Registry of this Court. </span></p>', '942ddf89a5e4421b2375e66e6ea46126.jpeg', '8785be2b38102f79a4a3230b44c52427.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-03', 1, '', '', '2023-01-02 16:02:18', '2023-01-03 07:18:45'),
(2520, 'uSTaA2BQnG0u97AeShZoDYhmw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Order rejecting bail petition does not preclude another petition on a later occasion giving more materials, further developments and different considerations. Karnataka High Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ashoka Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 10974 of 2022 decided on 14 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This petition is filed under Section 439 of Cr.P.C., seeking\r\nregular bail of the petitioner/accused No.2 in Crime No.313/2021\r\nof Hunusur Rural Police Station, Mysuru District, which is\r\nnumbered as S.C.No.76/2022 on committal and the offences\r\ninvoked against him under Sections 120-B, 302, 201 read with\r\nSection 34 of IPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The present petition is a successive bail petition filed\r\nby accused No.2, wherein, it is contended that the motive is\r\nattributed to accused No.1 only that he had illicit relationship\r\nwith the wife of the deceased. According to CW-5, accused No.1\r\nsaid to have called the deceased to his land by phone on\r\n27.11.2021 and not by this petitioner. The allegation is also that </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">accused No.1 said to have assaulted with club on head, which is\r\nthe possible view of cause for death and no overt act is\r\nattributed to this petitioner. The recovery of dead body is not at\r\nthe instance of this petitioner or accused No.1 because the place\r\nof burial of dead body was known to the complainant and many\r\nvillagers, which is mentioned in the FIR. Therefore, the\r\nrecording of voluntary statements of accused and showing\r\nrecovery which was already known to many persons and the\r\nPolice, the same is not admissible. For burial of dead body,\r\nthere is no material as to presence of this petitioner at the\r\nrelevant point of time and absolutely no incriminating\r\ncircumstances against the petitioner. Though previously, the\r\nbail petition was considered by this Court, individual role of the\r\npetitioner was not considered and therefore, now the petitioner\r\nbeing innocent and no prima facie case, he is entitled for bail.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. This Court earlier rejected the bail petition on the\r\nground that the motive for committing the murder that accused\r\nNo.1 was having illicit relationship with the wife of the deceased.\r\nThe dead body has been recovered at the instance of accused\r\nNo.1 and accused No.2, the same is a discovery under Section\r\n27 of the Evidence Act. This Court also has taken note of the\r\nstatements of CWs.1 and 2, who have last seen witnesses.\r\nApart from that, CW.6, who had dug the pit at the instance of\r\naccused No.1 and his statement, was also recorded. Further, it\r\nis observed that merely because petitioners are in judicial\r\ncustody for more than six months cannot be a ground to enlarge\r\nthem on bail in a heinous offence of committing the murder and\r\ntaking the life of a person. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. Having read the contents of the complaint also, it is\r\nvery clear that this petitioner was there along with accused No.1\r\nand also the deceased in the previous day and this aspect also\r\nhas been considered in the earlier bail petition and this Court\r\ntaken note of the statement of CWs.1 and 2, who have last seen\r\nthis petitioner along with deceased and accused No.1. Whether\r\nit was in the knowledge of others or not and not in the exclusive\r\nknowledge of this petitioner is a matter of trial. When the case <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is rests upon the circumstantial evidence, CWs.1 and 2, who\r\nhave witnessed this petitioner along with deceased and accused\r\nNo.1 that both of them were consuming the alcohol in the\r\nprevious day and within two days of the same, the body was\r\nrecovered at the instance of this petitioner and accused No.2.\r\nThe principles laid down in the judgments referred supra are\r\nconsidering the material on record after the evidence while\r\nconsidering the matter on merits with regard to whether it was\r\nin an exclusive knowledge or not. Now, the prima facie material\r\ndiscloses that the body was discovered at the instance of this\r\npetitioner and accused No.2. Apart from that, CWs.1 and 2 have\r\nlast seen this petitioner along with the deceased as well as\r\naccused No.1, the material is also placed before the Court. In\r\naddition to that, CW.6, who dug the pit at the instance of\r\naccused No.1 to bury the body, also, given the statement. It is\r\nalso emerged in the material that during the course of\r\ninvestigation that the deceased was called by accused No.1 and\r\naccused No.1 in turn called this petitioner and instructed him to\r\nbring the alcohol in furtherance of conspiracy which both of them\r\nhave conspired to eliminate the deceased. When such materials </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">are available before the Court and when accused No.1 hatched a\r\nplan along with accused No.2 to eliminate the husband of CW.5,\r\nwith the help of JCB machine, dug the pit near the land of\r\naccused No.1 and removed the mud from the pit and liquor was\r\nalso secured through this petitioner and after committing the\r\nmurder this petitioner and accused No.1 cremated the dead body\r\nin the pit which was dugged through P.W.6. Hence, there is\r\nprima facie material to invoke Sections 120-B, 302, 201 read\r\nwith Section 34 of IPC.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. This Court would like to rely upon the judgment of\r\nthe Apex Court in the case of Kumer Singh v. State of\r\nRajasthan and another reported in 2021 Crl.L.J. 4244,\r\nwherein, the Apex Court while dealing with the bail matter with\r\nregard to sharing of common intention and common object\r\nparticularly in paragraph No.14 of the judgment held that, it is\r\nrequired to be noted that all the accused are charged for the\r\noffences punishable under Sections 302 and 307 read with\r\nSection 149 of IPC. At this stage, the individual role of the\r\naccused is not required to be considered when they are alleged <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to have been the part of the unlawful assembly. Merely because\r\nthey were armed with lathis cannot be a ground to release them\r\non bail, in the facts and circumstances of the case, more\r\nparticularly when they are charged for the offences punishable\r\nunder Sections 302 and 307 read with Section 149 of IPC as well\r\nas Sections 147 and 148 of IPC.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">22. Hence, I do not find any merit in the petition to grant\r\nbail in favour of this petitioner in a successive bail petition. No\r\nfurther development has been made out and no different\r\nconsiderations also found to exercise the discretion.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The bail petition is rejected. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a5a0ae4e1761f4daacdb304c40a3e5c9.JPG', 'a7dc0ba984604a0773915a9685c6c933.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-04', 1, '', '', '2023-01-02 16:10:25', '2023-01-04 03:22:40'),
(2521, 'eYSgKpdVrSLZUTqZMljrdSHsb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Administrative Law. If a show cause notice is for a particular purpose and the party replies for that particular purpose, the authorities cannot pass order on something more to which the party had no notice. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The CAP A PIE Vs The South Western Railways.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 22793 of 2022 decided on 14 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Shorn of unnecessary details, facts in brief are as\r\nfollows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is in the business of performing work of\r\ncollection, washing and ironing of bedroll linen supplied to AC\r\ncoach passengers in several trains coming under the\r\nrespondent – South Western Railways. The respondent- South\r\nWestern Railways issue a notice inviting tender for the\r\naforesaid work which the petitioner is said to be performing on\r\n24.05.2022. The petitioner participates in the said tender. On\r\n17.10.2022 the respondent awards the contract in favour of the\r\npetitioner. In terms of the said order of award of contract, the\r\npetitioner requests permission to execute the work at M/s.\r\nLaundry Labs India Pvt. Ltd., which was not the one that was\r\nnecessary in terms of the tender conditions. Noticing the fact\r\nthe petitioner did not have appropriate infrastructure and had\r\ndeliberately misrepresented with regard to the laundry space\r\nissues a notice on 02.11.2022 seeking to show cause as to why\r\nthe contract of the petitioner should not be terminated.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. The petitioner replies to the said notice. Pending\r\nconsideration of the reply, certain developments take place.\r\nThe respondent terminates the contract between the petitioner </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and the South Western Railways on account of the aforesaid\r\ncircumstance of the act of the petitioner being in violation of\r\ntender conditions. It later transpires that the tender itself gets\r\ncancelled. In the light of the cancellation of the tender, what\r\nremains to be considered is, whether the impugned notice of\r\ntermination would be necessary to be gone into.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. The afore-narrated facts are not in dispute. With the\r\nsubsequent development of cancellation of the tender itself, the\r\nissue now revolves around a narrow compass only with regard\r\nto the impugned order blacklisting the petitioner for a period of\r\n2 years from the date of the said order i.e., from 10.11.2022.\r\nTo consider the tenability of the said order of blacklisting, it is\r\ngermane to notice the show cause notice issued to the\r\npetitioner seeking to show cause as to why the contract should\r\nnot be terminated.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. In all these link in the chain of dates, the\r\ndevelopments that takes place is cancellation of the tender\r\nitself. Therefore, the petitioner is now debarred from\r\nparticipating in any subsequent tender for a period of 2 years.\r\nIf the show cause notice issued to the petitioner is juxtaposed\r\nwith the order, it would unmistakably depict that it travels\r\nbeyond the show cause notice. The petitioner submits his reply\r\nto the contents of the show cause notice, which results in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">order of termination. The order of termination blacklists the\r\npetitioner for a period of 2 years, quoting it to be “in addition”.\r\nFor this “in addition” in the order, the petitioner was not put on\r\nnotice. The order of blacklisting comes to the petitioner as a\r\nbolt from the blue, as he had no notice prior to the order of\r\nblacklisting. The show cause notice only contained the\r\ncontents about the termination of contract and not on\r\nblacklisting. Therefore, it is a case where the petitioner without\r\nbeing aware is blacklisted. If the show cause notice was for a\r\nparticular purpose and the petitioner had replied for that\r\nparticular purpose, the order cannot add something more to\r\nwhich the petitioner had no notice. This would be in clear\r\nviolation of the elementary principle of natural justice namely,\r\n“audi alteram partem”, as it is trite that the Authority cannot\r\nseek to pass an order upon which, it did not seek to issue\r\nnotice. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Apex Court in SACI (supra) clearly holds that the\r\ncase that was never canvassed by the revenue to which the\r\nappellants therein had no opportunity to meet could not have\r\nbeen made a part of the order of the Tribunal. The facts in the\r\ncase at hand are akin to what the Apex Court renders in the\r\naforesaid judgment.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the light of the aforesaid facts and the judgments\r\nrendered by the Apex Court, the impugned order dated <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10.11.2022 warrants interference, only insofar as it adds\r\nblacklisting to its order.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n(i) Writ Petition is allowed in part. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '89ce9d8d6459f3c49c3643b9fbd01c38.jpeg', '015931255de60300c85538b80a2ae106.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-04', 1, '', '', '2023-01-02 16:18:51', '2023-01-04 10:40:01'),
(2522, '2DfgDrLqnYOW8vju89nhsCZyP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When a single parent applies for passport of the child, consent of the other spouse is not necessary. Passport Manual cannot run contrary to the Passports Rules. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>S. Nancy Nithya Vs The Government of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 22378 of 2022 decided on 15 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court seeking issuance of a writ\r\nin the nature of mandamus directing the 2nd respondent/ Regional\r\nPassport Officer, Bangalore, to renew/re-issue passport in terms of\r\nher application dated 02-07-2022.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Brief facts that leads the petitioner to this Court in the\r\nsubject petition, as borne out from the pleadings, are as follows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner and one K.Shivakumar got married on\r\n16.07.2009. From the wedlock a child is born and later, named as\r\nSachin Anant, who was also issued a passport – a minor’s passport.\r\nIt appears that after about 8 years, after the birth of the child, the\r\nrelationship between the petitioner and her husband turned sore.\r\nThe petitioner files a petition in M.C.No.174 of 2020, seeking a\r\ndecree of divorce. It is submitted that the case is posted for its\r\njudgment on 25.11.2022. Earlier the petitioner had also filed a\r\npetition seeking custody of the minor son before the concerned\r\nCourt in G & W.C. No.40 of 2019. The said case is pending\r\nconsideration before the concerned Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. The petitioner who claims to have the custody of the son,\r\neven as on date, seeks to visit Australia to celebrate Christmas\r\nalong with her son and accordingly, applied for renewal/re-issuance\r\nof minor’s passport on the website of the 2nd respondent. A number\r\nwas generated pursuant to the application, so submitted. Since the\r\npetitioner had separated from her husband, she has not submitted\r\nthe specimen signature of her husband for re-issuance of the\r\npassport in favour of her son. Despite passage of two months, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">there was no communication from the hands of the 2nd respondent\r\nbut was informed that the minor son’s passport would not be reissued as the minor son’s father - K.Shivakumar’s consent was\r\nmandatory for renewal/re-issuance of passport. The petitioner\r\nclaims to have visited the office of the 2nd respondent several times,\r\nall of which went unheeded and, therefore, is knocking this Court\r\nseeking a direction to the 2nd respondent for re-issue of passport to\r\nthe minor son, who is with the petitioner.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. The afore-narrated facts are not in dispute. The issue in\r\nthe case at hand is, <i>‘whether the 2nd respondent was right in\r\ndenying issuance/re-issuance of passport to the minor’. </i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. The Rules are framed by the Central Government in terms\r\nof Section 24 of the Act. Therefore, they are part of the statute and\r\nare statutory. The Passport Manual are guidelines to issue a\r\npassport are a solution to answer circumstances that would\r\nemerge, but, cannot run counter to the statute, as they are not\r\nstatutes. Therefore, the 2nd respondent will have to consider the\r\napplication of the petitioner in terms of the Rules and seek any\r\ndocument or clarification from the parent in terms of the Rules and\r\nnot in terms of the Passport Manual.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. Therefore, it is necessary for the Central Government to\r\nbring in such amendment to the Rules, if it wants the situation\r\nemerged in the Manual to be tackled with, failing which, rejecting <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">passports relying on the Manual particularly, in the case of passport\r\nof minors, would be rendered unsustainable as they would suffer\r\nfrom want of tenability. Since the Rules themselves envisage\r\nsituation of the kind that has emerged in the case at hand, the\r\nreliance being placed on the Manual which runs counter to the Rules\r\nsans countenance.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. It is also germane to notice the judgment rendered by the\r\nHigh Court of Telangana in the case of L.DEEPIKA v. UNION OF\r\nINDIA AND OTHERS. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the case before the High Court of Telangana, a minor was\r\ndirected to be issued a passport. The only difference therein was\r\nthat there was no G & W.C. case pending. The pendency of the case\r\nunder G & W.C. in the facts of the case at hand, in the considered\r\nview of the Court, would not be an impediment to consider the\r\napplication of the petitioner. The petitioner is thus entitled for a\r\ndirection by issuance of a mandamus to the respondent to consider\r\nher application forthwith.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. The writ petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9e01c68d99b6a87cbabd5fade97ccc0b.jpeg', '7c29202edf865f2d6e685bc2dab17b64.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-04', 1, '', '', '2023-01-02 16:31:42', '2023-01-04 06:43:52'),
(2523, '05XXorFbXOd7SmPISSd6bsUU8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“If marriage does not change the status of son, same cannot change the status of a daughter”. Karnataka High Court strikes down Guideline which excluded married daughter of ex-serviceman for dependent I-card eligibility. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Priyanka R. Patil Vs Kendriya Sainik Board and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 19722 of 2021 decided on 2 January 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Succinctly stated, the facts germane for consideration of\r\nthe lis are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The petitioner is the second daughter of one Subedar Ramesh\r\nKhandappa Police Patil. Khandappa Police Patil joins the services of\r\nthe Indian Army on 25.06.1979 and was inducted into the Madras\r\nEngineering Group. In the year 2001, the father of the petitioner\r\nwas deployed in an operation named Parakram at Gaziwala, Punjab,\r\nwhile perfoming his assigned task of mine clearance and handling\r\nwith the Madras Engineering Group, one H.P.O. – 2 Mine gets\r\nexploded. The father of the petitioner sustained grave injuries due\r\nto the blast and later succumbed to the injuries, by then he had put\r\nin 22 years of service. Later, the father of the petitioner was\r\ncategorized as a servicemen “killed in action” and was therefore,\r\nconsidered as “WARD OF BATTLE CASUALTY”. Father of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner was survived by the mother of the petitioner, the first\r\ndaughter and petitioner, the second. At the time of death of the\r\nfather of the petitioner in the year 2001, the petitioner was 10\r\nyears old and was studying in the 4th standard. The petitioner\r\ncompletes her graduation in the year 2015 and became eligible to\r\nbe considered for appointment in the State Government in any\r\nrecruitment process that would ensue.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. I have given my anxious consideration to the submissions\r\nmade by the learned counsel appearing for the respective parties\r\nand have perused the material on record. In furtherance whereof,\r\nwhat falls for consideration is,</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“Whether the guidelines which portray gender\r\ninequality is tenable in law?” </b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">10.4. The sons are issued the I-card subject to them not\r\nattaining the age of 25 years or on ceasing to be dependant\r\nwhichever is earlier or remains unemployed due to lifetime\r\ndisability. These are not the conditions for the daughter. Whatever\r\nis applicable to the son is applicable to the daughter as well, but till\r\nshe gets married or is unemployed due to lifetime disability. What\r\ncan be gathered from the aforesaid clauses of the guideline is, the\r\nson the moment he attains the age of 25 years or on ceasing to\r\nbecome a dependant as defined under the guideline, he would lose\r\nthe benefit of getting an I-card. To the daughter, it is till she gets\r\nmarried. So, if the daughter is wanting to get the benefit of grant\r\nof an I-card, she has to remain unmarried or be unemployed due to\r\nlifetime disability. Marriage of the daughter takes away the benefit.\r\nThe guidelines would thus depict gender bias qua the status of the\r\ndaughter “married and unmarried”. Whether this would stand the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">test of tenets of Article 14 of the Constitution of India is what is\r\nnecessary to be considered.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. The issue in the case at hand does not concern a statute,\r\nbut a guideline in the form of a policy; a policy in the form of a\r\nguideline, it is therefore, on a lower pedestal than that of a statute.\r\nIf statutes are held to be violative of the tenets of Article 14 of the\r\nConstitution of India by the Constitutional Courts for the reason\r\nthat it depicts discrimination resulting in gender bias, a guideline in\r\nthe form of policy would pale into insignificance, if it portrays such\r\ndiscrimination, even to its remotest sense.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. To iterate, the guideline after the age of 25 years to both\r\nson and daughter is uniform. Therefore, up to the age of 25 years,\r\nis what is analysed hereinabove. The daughter being less than 25\r\nyears, gets married, loses the benefit of being a ward of an exserviceman for the purposes of issuance of an I-card. Therefore,\r\nshe has to remain unmarried, if she has to get the benefit of\r\nissuance of an I-card in her favour, which by itself would generate\r\ncertain benefits to the wards of the ex-servicemen. In the\r\nconsidered view of this Court, if the son remains a son, married\r\nor unmarried; a daughter shall remain a daughter, married\r\nor unmarried. If the act of marriage does not change the\r\nstatus of the son; the act of marriage cannot and shall not\r\nchange the status of a daughter</b>. <b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. In the case at hand, the ex-serviceman did not have any\r\nsons, he had two daughters. The first daughter has secured\r\nemployment elsewhere on her own, second daughter is the\r\npetitioner. She gets married before 25, thus, she has lost the\r\nopportunity of securing an I-card and her consideration for\r\nappointment in a recruitment by the State Government under the\r\nex-servicemen quota. Therefore, the very object with which the\r\nwelfare schemes are created for the benefit of the kith and kin of a\r\ndeceased ex-servicemen is taken away, because the petitioner is\r\nthe daughter and the daughter is married. If the ex-servicemen\r\nhad sons, marriage would not have made any difference. It is for\r\nthis reason, the guideline falls foul of the tenets of Article 14 of the\r\nConstitution of India. The guideline is a depiction of gender\r\nstereotypes which were existent decades ago, and if permitted to\r\nremain would be an anachronistic obstacle in the march towards\r\nwomen’s equality.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. The afore-analyzed factual expose and the legal\r\nexposition would lead to an unmistakable conclusion that the\r\nguideline portrays discrimination on the basis of gender and cannot <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be permitted to remain as a guideline. Therefore, the guidelines will\r\nfly on the face of the tenets of Articles 14, 15 and 16 of the\r\nConstitution of India. If any Rule/Policy/Guideline, which would be\r\nin violation of the Rule of equality, such Rule/Policy/Guideline\r\ncannot but be obliterated, as being unconstitutional. The issue in\r\nthe lis is not the Rule, it is a Policy or a Guideline for grant of I-card\r\nto the dependants of the ex-servicemen and is therefore necessarily\r\nto be annihilated.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. There was a time when women had no combatant role in\r\nany Force. There is a paradigm shift from the past. Women have\r\nreached combatant services in supervisory roles as officers and on\r\nother responsibilities, be it in the Indian Army; in the Indian Air\r\nForce and in the Indian Navy. This is in the public domain.\r\nTherefore, women have a role to play in the Forces, be it the Army,\r\nthe Navy or the Air force. These are not the times where women\r\nhave no role to play at all. Therefore, the word ‘men’ in the title, a\r\npart of word ex-servicemen, would seek to demonstrate a\r\nmisogynous posture of an age old masculine culture. Therefore, the\r\ntitle wherever reads as ex-servicemen in the annals of policy\r\nmaking of the Government, be it the Union or the State concerned,\r\nshould be made “Gender neutral”. There has to be a change in\r\nthe mindset of the rule making authority or the policy makers, it is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">only then there could be recognition of commitment of the values of\r\nthe Constitution, as equality should not remain a mere idle\r\nincantation, but has to be a vibrant living reality. It must be\r\nremembered that extension of women’s right is the basic principle\r\nof all social progress.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n19. Since it is in the realm of rule making or a policy making\r\nwhich is the domain of the Union Government or the State\r\nGovernment as the case would be, it is for the Union Government\r\nor the State Government to address this imperative need of change\r\nof nomenclature wherever it depicts to be ‘ex-servicemen’ to that\r\nof ‘ex-service personnel’ which would be in tune with ever\r\nevolving, dynamic tenets, of Article 14 of the Constitution of India.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Writ Petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1e32a6e119f29db6f53f8dded95d148e.jpeg', '30d8b9a1498fcdf958cd0da89c98e495.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-02', 1, '', '', '2023-01-02 18:03:58', '2023-01-02 18:35:56');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2524, 'kGfmy8FkmlJrrE8Iyxt09Nrkd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Women are now leading the Defense Forces. Time to change the title from \'\'Ex-Servicemen\'\' to \'\'Ex-Service Personnel\". Karnataka High Court calls for gender neutrality in consonance with Article 14. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Priyanka R. Patil Vs Kendriya Sainik Board and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 19722 of 2021 decided on 2 January 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice M. Nagaprasanna.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. Succinctly stated, the facts germane for consideration of the lis are as follows:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The petitioner is the second daughter of one Subedar Ramesh Khandappa Police Patil. Khandappa Police Patil joins the services of the Indian Army on 25.06.1979 and was inducted into the Madras Engineering Group. In the year 2001, the father of the petitioner was deployed in an operation named Parakram at Gaziwala, Punjab, while perfoming his assigned task of mine clearance and handling with the Madras Engineering Group, one H.P.O. – 2 Mine gets exploded. The father of the petitioner sustained grave injuries due to the blast and later succumbed to the injuries, by then he had put in 22 years of service. Later, the father of the petitioner was categorized as a servicemen “killed in action” and was therefore, considered as “WARD OF BATTLE CASUALTY”. Father of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner was survived by the mother of the petitioner, the first daughter and petitioner, the second. At the time of death of the father of the petitioner in the year 2001, the petitioner was 10 years old and was studying in the 4th standard. The petitioner completes her graduation in the year 2015 and became eligible to be considered for appointment in the State Government in any recruitment process that would ensue.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">9. I have given my anxious consideration to the submissions made by the learned counsel appearing for the respective parties and have perused the material on record. In furtherance whereof, what falls for consideration is,</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><span style=\"font-weight: bolder;\">“Whether the guidelines which portray gender inequality is tenable in law?” </span></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><span style=\"font-weight: bolder;\"><br></span></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">10.4. The sons are issued the I-card subject to them not attaining the age of 25 years or on ceasing to be dependant whichever is earlier or remains unemployed due to lifetime disability. These are not the conditions for the daughter. Whatever is applicable to the son is applicable to the daughter as well, but till she gets married or is unemployed due to lifetime disability. What can be gathered from the aforesaid clauses of the guideline is, the son the moment he attains the age of 25 years or on ceasing to become a dependant as defined under the guideline, he would lose the benefit of getting an I-card. To the daughter, it is till she gets married. So, if the daughter is wanting to get the benefit of grant of an I-card, she has to remain unmarried or be unemployed due to lifetime disability. Marriage of the daughter takes away the benefit. The guidelines would thus depict gender bias qua the status of the daughter “married and unmarried”. Whether this would stand the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">test of tenets of Article 14 of the Constitution of India is what is necessary to be considered.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">12. The issue in the case at hand does not concern a statute, but a guideline in the form of a policy; a policy in the form of a guideline, it is therefore, on a lower pedestal than that of a statute. If statutes are held to be violative of the tenets of Article 14 of the Constitution of India by the Constitutional Courts for the reason that it depicts discrimination resulting in gender bias, a guideline in the form of policy would pale into insignificance, if it portrays such discrimination, even to its remotest sense.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">14. To iterate, the guideline after the age of 25 years to both son and daughter is uniform. Therefore, up to the age of 25 years, is what is analysed hereinabove. The daughter being less than 25 years, gets married, loses the benefit of being a ward of an exserviceman for the purposes of issuance of an I-card. Therefore, she has to remain unmarried, if she has to get the benefit of issuance of an I-card in her favour, which by itself would generate certain benefits to the wards of the ex-servicemen. In the considered view of this Court, if the son remains a son, married or unmarried; a daughter shall remain a daughter, married or unmarried. If the act of marriage does not change the status of the son; the act of marriage cannot and shall not change the status of a daughter</span>. <span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">15. In the case at hand, the ex-serviceman did not have any sons, he had two daughters. The first daughter has secured employment elsewhere on her own, second daughter is the petitioner. She gets married before 25, thus, she has lost the opportunity of securing an I-card and her consideration for appointment in a recruitment by the State Government under the ex-servicemen quota. Therefore, the very object with which the welfare schemes are created for the benefit of the kith and kin of a deceased ex-servicemen is taken away, because the petitioner is the daughter and the daughter is married. If the ex-servicemen had sons, marriage would not have made any difference. It is for this reason, the guideline falls foul of the tenets of Article 14 of the Constitution of India. The guideline is a depiction of gender stereotypes which were existent decades ago, and if permitted to remain would be an anachronistic obstacle in the march towards women’s equality.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">16. The afore-analyzed factual expose and the legal exposition would lead to an unmistakable conclusion that the guideline portrays discrimination on the basis of gender and cannot <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be permitted to remain as a guideline. Therefore, the guidelines will fly on the face of the tenets of Articles 14, 15 and 16 of the Constitution of India. If any Rule/Policy/Guideline, which would be in violation of the Rule of equality, such Rule/Policy/Guideline cannot but be obliterated, as being unconstitutional. The issue in the lis is not the Rule, it is a Policy or a Guideline for grant of I-card to the dependants of the ex-servicemen and is therefore necessarily to be annihilated.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">18. There was a time when women had no combatant role in any Force. There is a paradigm shift from the past. Women have reached combatant services in supervisory roles as officers and on other responsibilities, be it in the Indian Army; in the Indian Air Force and in the Indian Navy. This is in the public domain. Therefore, women have a role to play in the Forces, be it the Army, the Navy or the Air force. These are not the times where women have no role to play at all. Therefore, the word ‘men’ in the title, a part of word ex-servicemen, would seek to demonstrate a misogynous posture of an age old masculine culture. Therefore, the title wherever reads as ex-servicemen in the annals of policy making of the Government, be it the Union or the State concerned, should be made “Gender neutral”. There has to be a change in the mindset of the rule making authority or the policy makers, it is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">only then there could be recognition of commitment of the values of the Constitution, as equality should not remain a mere idle incantation, but has to be a vibrant living reality. It must be remembered that extension of women’s right is the basic principle of all social progress.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">19. Since it is in the realm of rule making or a policy making which is the domain of the Union Government or the State Government as the case would be, it is for the Union Government or the State Government to address this imperative need of change of nomenclature wherever it depicts to be ‘ex-servicemen’ to that of ‘ex-service personnel’ which would be in tune with ever evolving, dynamic tenets, of Article 14 of the Constitution of India.</span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">ORDER</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(i) Writ Petition is allowed. </span></p>', '7eff3da47e5ae748249aad081d3d8251.jpg', 'cb1797c7252dbd6fb0b6c02983218c0e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-02', 1, '', '', '2023-01-02 18:41:43', '2023-01-02 18:43:30'),
(2525, '3sdAx8ZBgXOBjYC9gp99wETxy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Order 41 Rule 33 CPC can be invoked to enhance compensation even in an appeal filed by the insured as well as Insurance Company in the absence of appeal filed by the claimant. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Saleem Ahammed and others Vs The National Insurance Co Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.F.A 1914 of 2017 decided on 16 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Heard the learned counsel appearing for the\r\nrespective parties.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The factual matrix of the case is that the injured who\r\nwas aged about seven years met with an accident as a result,\r\nher left leg was amputated below the knee and hence, she made\r\nthe claim before the Tribunal and Tribunal after considering both\r\nthe oral and documentary evidence available on record, allowed\r\nthe claim petition in part granting compensation of\r\nRs.7,24,315/- with 6% interest and the liability is fastened on\r\nthe insured on the ground that the driver of the offending vehicle\r\nwas not having valid and effective driving licence hence, the\r\npresent appeal is filed by the owner challenging the judgment\r\nand award with regard to the liability fastened on the insured.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The main contention of the appellants/respondent\r\nNos.1 and 2 that the Tribunal has committed an error in\r\nfastening the liability on the insured and the driver was having\r\ndriving licence to drive the non-transport vehicle and the same is\r\nalso valid up to 07.11.2029 and in view of the judgment of the\r\nApex Court in the case of MUKUND DEWANGAN vs ORIENTAL\r\nINSURANCE COMPANY LIMITED reported in (2017) 14 SCC\r\n663, the Apex Court held that if the unladen weight of the\r\nvehicle is less than 7,500, no need of transport endorsement if\r\nvehicle is LMV and hence, liability has to be fastened on the\r\nInsurance Company instead of insured.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Having heard the respective counsel and also on\r\nperusal of the material available on record, the point that would\r\narise for consideration of this Court are:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(1) Whether the Tribunal has committed an error in\r\nfastening the liability on the insured instead of\r\ninsurer?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(2) Whether it is a fit case to exercise the discretion\r\nunder Order 41 Rule 33 of CPC?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(3) What order?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Point No.1</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Having heard the respective counsel and also on\r\nperusal of the material available on record no doubt, the matter\r\nis referred to the Larger Bench but as on the date, the principles\r\nlaid down in the judgment of the Apex Court in Mukund\r\nDewangan’s case is very clear that if the vehicle involved in the\r\naccident is LMV and unladen weight is less than 7,500, transport\r\nendorsement is not necessary and Insurance Company is laiable\r\nto pay compensation. Hence, having considered the factual\r\naspects of the present case, the vehicle involved in the accident\r\nis a car and the same is a LMV. When such being the case, the\r\nInsurance Company is liable to pay the compensation and the\r\nliability of the Insurance Company cannot be exonerated.\r\nHence, point No.1 is answered as affirmative.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Point No.2:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. Hence, in all the claimant is entitled for an amount of\r\nRs.27,97,496/-.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. The contention of the learned counsel for the\r\nInsurance Company is that in an appeal filed by the insured, this\r\nCourt cannot invoke Order 41 Rule 33 and the said submission\r\ncannot be accepted for the reason that Order 41 Rule 33 can be\r\ninvoked when an injustice is caused when not awarded the just\r\nand reasonable compensation and even in an appeal filed by the\r\ninsured as well as Insurance Company in the absence of appeal\r\nfiled by the claimant and the same is settled law and in order to\r\nmeet the ends of justice and to set right the injustice caused to\r\nthe claimant. Hence, this Court invoked Order 41 Rule 33 in the\r\npresent case. Thus, this point is answered accordingly.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(i) The appeal is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ed06d70ecfbf4e68506598421c3ee2f3.JPG', '12bffdf34c4786b75c5c963c5519a6dd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-04', 1, '', '', '2023-01-03 15:37:43', '2023-01-04 12:31:07'),
(2526, 'EoYkRllISz2LhCxcav663AlHF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Once an instrument is admitted in evidence, even by inadvertence, the admissibility of the document on the ground it was insufficiently stamped cannot be questioned thereafter. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Anil Ramachandra Mashalkar Vs Babu Hasansab Kadakol and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 112448 of 2017 decided on 15 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. An order of the Trial Court directing the Office to\r\nimpound a document, which was admitted in evidence as\r\nEx.P1, for collection of stamp duty and penalty, is assailed\r\nin this writ petition.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n2. On 03.04.2008, an agreement of sale was\r\nexecuted between the petitioner and the first respondent,\r\nwhereby the first respondent agreed to sell the suit\r\nproperty for a sum of Rs.6,00,000/- (Rupees Six lakhs\r\nonly). The entire sale consideration was stated to be paid\r\non the date of execution of the sale deed. It was also stated\r\nthat the possession of the property was required to be\r\ndelivered at the time of registration of the sale deed, but,\r\nthe petitioner had come into possession of the property\r\nunder an irrevocable Special Power of Attorney executed by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the first respondent on the same day. The agreement also\r\ncontained a clause that the first respondent would execute\r\nthe registered sale deed at the convenience of the parties\r\nand as demanded by the petitioner.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>83. In this case, admittedly, the instrument was\r\nadmitted in evidence by the Court without any objection\r\nraised by the defendant and the Court has also not\r\nappeared to have examined the document and ascertained\r\nwhether the instrument Ex P1 was duly stamped.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>87. In light of these authoritative pronouncements, it\r\nis clear that once an instrument is admitted in evidence,\r\neven by inadvertence, the admissibility of the document on\r\nthe ground it was insufficiently stamped cannot be\r\nquestioned thereafter.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>88. However, in this case, the 2nd defendant, after\r\nfiling an application before the Trial Court requesting the\r\nCourt not to act upon the instrument and on the ground\r\nthat the application was not considered has invoked Section\r\n58 of the Act and filed a revision to the District Court. The\r\nDistrict Court has exercised its revisional power and\r\ndirected the Trial Court to consider the application and the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Trial Court has thereafter proceeded to pass the impugned\r\norder holding that the document was liable to be\r\nimpounded for collection of duty and penalty.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">89. This procedure adopted of filing a Revision by\r\nthe 2nd defendant is completely erroneous. As already\r\nstated above, the power available under Section 58 to the\r\nAppellate Court is only to consider the correctness of a\r\ndecision actually taken by the Trial Court determining the\r\nduty and penalty payable while admitting the instrument in\r\nevidence. If there is no decision taken at all by the Trial\r\nCourt regarding the duty and penalty payable, while\r\nadmitting the instrument in evidence, the question of\r\ninvoking the revisional power under Section 58 would not\r\narise. Simply put, there can be no question of considering\r\nthe correctness of a non-existent order. Thus, the District\r\nCourt had no jurisdiction to direct the Trial Court to\r\nexamine the admissibility of a document after it had been </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">admitted in evidence in exercise of its power under Section\r\n58 of the Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>98. As already stated above, the Appellate Court has\r\nthe power to examine the decision taken by the Trial Court\r\nand make a declaration that the instrument could not have\r\nbeen admitted in evidence without payment of duty and\r\npenalty under Section 34 or without the payment of a\r\nhigher duty and penalty. The Appellate Court is thereafter\r\nrequired to determine the amount of duty to which the\r\ninstrument is chargeable and also direct the production of\r\nthe instrument and on it being produced to impound it</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>105. In short, the exercise of revisional power by the\r\nAppellate Court would not enable the collection of duty and\r\npenalty by the Deputy Commissioner and thus, an order\r\npassed by the Appellate Court cannot be the basis for\r\ncollection of duty and penalty in respect of an instrument\r\nwhich has been admitted on payment of duty or penalty\r\nand which is also certified to be duly stamped by the\r\nDeputy Commissioner.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>106. It is to be stated here that the Stamp Act is a\r\nfiscal statute and a literal and strict interpretation of the\r\nprovisions would have to be adopted. As a consequence,\r\nsince the power to invoke Section 58 is only by the Court\r\non its own at the behest of the Deputy Commissioner, no\r\nother person, such as a defendant to a suit, can be\r\npermitted to invoke the power of revision under Section 58\r\nof the Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>110. If the right of the State to recover stamp duty\r\nwhich is not levied or short levied is itself lost due to lapse\r\nof time, the impounding officer cannot be conferred with <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the power to impound the document so as to facilitate the\r\nrecovery of the stamp duty, after the prescribed period of\r\nfive years.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>111. In this case, the instrument was executed on\r\n03.04.2008 and thus the State could recover the stamp\r\nduty short levied only before 02.04.2013. However, the\r\ninstrument was admitted into evidence on 16.07.2014 i.e.,\r\nafter years and the application by the 2nd defendant raising\r\nthe objection was filed on 09.02.2015 and in this\r\napplication no allegation of fraud, etc. was made. it is thus\r\nclear as on the date the instrument was produced, which\r\nwas nearly seven years after the instrument was executed,\r\neven the State had lost its right to recover the stamp duty.\r\nAs a natural consequence, it will also have to be held that\r\nthe impounding officer had also the right to impound the\r\ndocument. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">112. It is therefore clear that both the impugned\r\norder of the Trial Court and the order of the District Court\r\nare without jurisdiction and are accordingly quashed.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Writ Petition is accordingly allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'bec690ccacf553990dcc1afa82196b13.JPG', '6ac8f1b0d2fdfa3924963b18c6d9bb67.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-03', 1, '', '', '2023-01-03 16:02:09', '2023-01-03 11:04:00'),
(2527, 'AiLX9XpDPNX2QINPhTDT9HRfb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'District Court has no jurisdiction to direct the Trial Court to examine the admissibility of a document on the ground of non/under stamping after it had been admitted in evidence. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Anil Ramachandra Mashalkar Vs Babu Hasansab Kadakol and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 112448 of 2017 decided on 15 December 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice N.S. Sanjay Gowda.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">1. An order of the Trial Court directing the Office to impound a document, which was admitted in evidence as Ex.P1, for collection of stamp duty and penalty, is assailed in this writ petition.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. On 03.04.2008, an agreement of sale was executed between the petitioner and the first respondent, whereby the first respondent agreed to sell the suit property for a sum of Rs.6,00,000/- (Rupees Six lakhs only). The entire sale consideration was stated to be paid on the date of execution of the sale deed. It was also stated that the possession of the property was required to be delivered at the time of registration of the sale deed, but, the petitioner had come into possession of the property under an irrevocable Special Power of Attorney executed by&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the first respondent on the same day. The agreement also contained a clause that the first respondent would execute the registered sale deed at the convenience of the parties and as demanded by the petitioner.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">83. In this case, admittedly, the instrument was admitted in evidence by the Court without any objection raised by the defendant and the Court has also not appeared to have examined the document and ascertained whether the instrument Ex P1 was duly stamped.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">87. In light of these authoritative pronouncements, it is clear that once an instrument is admitted in evidence, even by inadvertence, the admissibility of the document on the ground it was insufficiently stamped cannot be questioned thereafter.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">88. However, in this case, the 2nd defendant, after filing an application before the Trial Court requesting the Court not to act upon the instrument and on the ground that the application was not considered has invoked Section 58 of the Act and filed a revision to the District Court. The District Court has exercised its revisional power and directed the Trial Court to consider the application and the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Trial Court has thereafter proceeded to pass the impugned order holding that the document was liable to be impounded for collection of duty and penalty.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">89. This procedure adopted of filing a Revision by the 2nd defendant is completely erroneous. As already stated above, the power available under Section 58 to the Appellate Court is only to consider the correctness of a decision actually taken by the Trial Court determining the duty and penalty payable while admitting the instrument in evidence. If there is no decision taken at all by the Trial Court regarding the duty and penalty payable, while admitting the instrument in evidence, the question of invoking the revisional power under Section 58 would not arise. Simply put, there can be no question of considering the correctness of a non-existent order. Thus, the District Court had no jurisdiction to direct the Trial Court to examine the admissibility of a document after it had been&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">admitted in evidence in exercise of its power under Section 58 of the Act.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">98. As already stated above, the Appellate Court has the power to examine the decision taken by the Trial Court and make a declaration that the instrument could not have been admitted in evidence without payment of duty and penalty under Section 34 or without the payment of a higher duty and penalty. The Appellate Court is thereafter required to determine the amount of duty to which the instrument is chargeable and also direct the production of the instrument and on it being produced to impound it</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">105. In short, the exercise of revisional power by the Appellate Court would not enable the collection of duty and penalty by the Deputy Commissioner and thus, an order passed by the Appellate Court cannot be the basis for collection of duty and penalty in respect of an instrument which has been admitted on payment of duty or penalty and which is also certified to be duly stamped by the Deputy Commissioner.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">106. It is to be stated here that the Stamp Act is a fiscal statute and a literal and strict interpretation of the provisions would have to be adopted. As a consequence, since the power to invoke Section 58 is only by the Court on its own at the behest of the Deputy Commissioner, no other person, such as a defendant to a suit, can be permitted to invoke the power of revision under Section 58 of the Act.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">110. If the right of the State to recover stamp duty which is not levied or short levied is itself lost due to lapse of time, the impounding officer cannot be conferred with&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the power to impound the document so as to facilitate the recovery of the stamp duty, after the prescribed period of five years.</span><span style=\"font-size: 12pt;\">&nbsp;</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">111. In this case, the instrument was executed on 03.04.2008 and thus the State could recover the stamp duty short levied only before 02.04.2013. However, the instrument was admitted into evidence on 16.07.2014 i.e., after years and the application by the 2nd defendant raising the objection was filed on 09.02.2015 and in this application no allegation of fraud, etc. was made. it is thus clear as on the date the instrument was produced, which was nearly seven years after the instrument was executed, even the State had lost its right to recover the stamp duty. As a natural consequence, it will also have to be held that the impounding officer had also the right to impound the document.&nbsp;<br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">112. It is therefore clear that both the impugned order of the Trial Court and the order of the District Court are without jurisdiction and are accordingly quashed.</span><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Writ Petition is accordingly allowed.&nbsp;</span></p>', '94349b9ef7805d3b8ac03cf535b4e408.JPG', '9140b4b0074f7c67b7ea5827894b5477.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-04', 1, '', '', '2023-01-04 13:06:35', '2023-01-04 08:44:12');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2528, 'KTohNi0scrGMCG88PW03QRIMX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Where driver of vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle. Karnataka High Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Renuka Satyappa and others Vs Lakkappa and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>MFA 103438 of 2018 decided on 7 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Sunil Dutt Yadav and Justice Umesh M Adiga.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Petitioners in MVC No.82/2016 on the file of the XI\r\nAdditional District and Sessions Judge and Additional\r\nMACT, Belagavi have challenged the impugned judgment\r\npassed by the said court dated 05.12.2016 claiming\r\nenhancement of compensation so also to fix liability to pay\r\ncompensation on respondent No.2.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. It was the case of the appellants that on\r\n22.10.2015 at about 1.00 p.m., deceased Satyappa along\r\nwith petitioners were going in a motorcycle bearing No.KA22/EN-5774 from Khanapur towards Nesargi. The rider of\r\nthe motorcycle bearing KA-24/S-2598, rode his vehicle in\r\nrash and negligent manner and dashed against the\r\nmotorcycle of the deceased, within the jurisdiction of\r\nHanabarahatti village. Due to impact, Satyappa had\r\nsustained grievous injuries and succumbed to the injuries.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Following point emerges for our determination:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1) Whether petitioners are entitled for\r\nenhancement of compensation? </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2) Whether liability to pay compensation has\r\nto be fixed on respondent No.2 with liberty\r\nto recover the same from owner? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. In all the above said judgments, it is held by\r\nthis court and Hon’ble Supreme Court that when driver or\r\nrider of the vehicle had no valid and effective driving <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">licence at the time of the accident, insurance company\r\nmay not be liable to pay compensation; however, in the\r\nends of justice, insurance company shall pay the\r\ncompensation amount to the claimant and it can recover\r\nthe same from the owner of the vehicle. The law laid down\r\nin the above said judgments are applicable to the present\r\ncase.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">19. Learned counsel for respondent No.2 relied on\r\nthe judgment Beli Ram (supra) and also judgment of a\r\nCoordinate Bench of this court in MFA No.100226/2016\r\nc/w MFA No.100730/2016 dated 22.04.2021 in the\r\ncase of Smt.Padma and Others Vs.Ramanjali Naidu\r\nand Others. The law laid down in the case of Beli Ram\r\n(supra) is not applicable to the facts of the present case.\r\nIn that case, the claimant has sought for the compensation\r\nunder Workmen Compensation Act. The driving licence of\r\nthe driver of the lorry had expired three years prior to the\r\ndate of the accident and the owner of the vehicle never\r\nenquired with the said driver, about the driving licence or </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">its renewal. Considering the said fact, it is held by the\r\nHon’ble Supreme Court that owner is liable to pay the\r\ncompensation. In the above said case, beneficiary was\r\ndriver himself, who was negligent and the said case was\r\nnot coming under the purview of the motor vehicle\r\ncompensation case. In the law laid down in the above said\r\njudgment is not applicable to the facts of the present case.\r\nThe judgment of the Coordinate Bench of this court,\r\nreferred to above, relying on the judgment in the case of\r\nBeli Ram(supra), held that owner of the vehicle\r\nresponsible to pay the compensation and insurance\r\ncompany was absolved of its liability to pay the\r\ncompensation. The law laid down in the above said two\r\njudgments are not applicable to the facts of the present\r\ncase, since the claimants in the present case are third\r\nparty and the claim made in this case is under the Motor\r\nVehicles Act. For the above said discussions, it is necessary\r\nin this case to direct respondent No.2 to pay the\r\ncompensation on behalf of the owner and recover the\r\nsame from the owner of the vehicle. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. In this case, respondents have not challenged\r\nthe award passed by the trial court. However, the court\r\nhas to see that claimants should get just and reasonable\r\namount of compensation. The Tribunal wrongly considered\r\nthe income of the deceased so also wrongly awarded\r\ncompensation under the head loss consortium and funeral\r\nexpenses etc. which can be modified by this court to award\r\njust compensation, though there is no appeal filed by\r\ninsurer against the impugned judgment.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\ni) Appeal is partly allowed. No costs. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ii) Impugned judgment is modified. Petitioners\r\nare entitled for compensation of\r\nRs.15,44,000/- with interest at the rate of 6%\r\np.a. from the date of petition till payment of\r\nentire amount as against Rs.20,53,000/-\r\nawarded by the Tribunal.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5e3838553aae271c6797021289fa81ef.jpeg', 'fede945db96b405ea0f9387204525637.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-05', 1, '', '', '2023-01-04 13:14:04', '2023-01-05 07:07:53'),
(2529, 'udkOeV7yKIdTeFHtQuBxtwqzQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'MVC Act. Amputation of leg need not always result in 100% disability for the purpose of awarding compensation when the claimant can do the work which is not strenuous in nature. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Somappa Balappa Nandi Vs Mallappa and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>MFA 103196 of 2018 decided on 15 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Sunil Dutt Yadav and Justice Umesh M Adiga.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The case of the petitioner before the Trial Court\r\nwas that, on 01.06.2016, at about 3 p.m. he was\r\nreturning from Gokak to his village Chikkanandi on\r\nGokak-Yaragatti road on his motorcycle bearing No.KA47/E-1361, he met with accident at Savalyal Pol due to\r\nrash and negligent riding of the motorcycle bearing\r\nNo.KA-49/S-6995 by its rider, due to which petitioner\r\nhad sustained fracture of left tibia and fibula. He was\r\nadmitted to hospital of Dr.M.G.Umbrani at Gokak. He\r\nunderwent surgery and his left leg below the knee joint\r\nwas amputated. Petitioner had further contended that at </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the time of accident, he was aged 45 years; he was an\r\nagriculturist and also doing agricultural coolie work, he\r\nwas earning Rs.2,00,000/- per annum from agriculture\r\nand Rs.12,000/- per month by working as an\r\nagricultural coolie. He has further stated that he has\r\nspent Rs.1,50,000/- towards medical expenses and he\r\nrequires Rs.5,00,000/- for his future medical expenses.\r\nDue to amputation to left leg, he became permanently\r\ndisabled and unable to do any work. With these reasons,\r\nhe prayed to award compensation of Rs.30,00,000/-.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. The following point emerges for our determination:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>1. Whether petitioner is entitled for enhancement\r\nof compensation awarded by the trial Court? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. In this case petitioner was aged about 45 years at\r\nthe time of accident. His left leg was amputated below\r\nthe knee. He was said to be doing work as agricultural\r\ncoolie. According to the evidence of PW.2, petitioner\r\nhas been suffering from permanent disability to an\r\nextent of 100% to the whole body. Agriculture and\r\nagricultural coolie work is a strenuous work. When he\r\nhas lost one of his legs, it cannot be possible for him to\r\ndo the said work. Therefore, he has lost 100% income\r\nfrom the agriculture or as agricultural coolie work. The\r\ntrial Court observed in the judgment that petitioner has\r\nnot produced any document to show that he had\r\nagricultural lands. Hence, it can be considered as he was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">an agriculture coolie. Therefore, it is clear that after the\r\naccident, it was rather impossible for him to do the work\r\nas agricultural coolie. Now, the second question is\r\nwhether he can do any other work wherein much strain\r\nis not required or work in sitting position. The answer is\r\nin the affirmative. He can do the work which is not\r\nstrenuous and much movements are not required.\r\nConsidering the same, we notionally assess the\r\npermanent disability affect earning capacity of the\r\npetitioner is to an extent of 75% to the whole body.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. Learned advocate for appellant has contended that\r\nTribunal has awarded Rs.10,000/- towards loss of\r\namenities or discomfort which is on lower side. In the\r\ncase of Lalan D. @ Lal and another and Rajkumar\r\nVs. Ajay Kumar & Another referred supra, it is held\r\nthat when compensation is awarded by treating loss of\r\nfuture earning capacity as 100% or even anything more\r\nthan 50%, the need to award compensation separately\r\nunder the head loss of amenities or loss of expectations\r\nof life may disappear. As a result only a token or\r\nnominal amount may have to be awarded under those\r\nheads. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. In this case also permanent disability of the\r\npetitioner is taken as 70% to the whole body and\r\ncompensation has been awarded on that basis. Keeping\r\nthe law laid down in the above judgments and also\r\nconsidering the facts of this case, Rs.50,000/- is\r\nawarded under the head loss of amenities. Petitioner is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">entitled for the following amount of compensation under\r\ndifferent heads.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> Appeal is partly allowed with costs.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> Impugned judgment is modified.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> Appellant is entitled for compensation\r\nof Rs.16,71,000/- as against Rs.6,84,000/-\r\nawarded by the Tribunal, with interest at the\r\nrate of 6% p.a. on the enhanced amount of\r\ncompensation from the date of petition till\r\nrealization of entire amount. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e10f94d5ccd1c325d066441fcee18b06.jpeg', 'bf50b649b8e7de0bd1738536637e919a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-05', 1, '', '', '2023-01-04 14:27:03', '2023-01-05 10:44:06'),
(2530, 'HjXhUPyVeEe4RiPaT0kGFU0bl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Assessees are not liable to pay tax under the Interest-Tax Act, 1974 on the interest component included in the hire-purchase instalments paid under the hire-purchase agreement. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Muthoot Leasing and Finance Limited and another Vs Commissioner of Income Tax.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 10201-10202 of 2010 decided on 3 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sanjiv Khanna and Justice M.M. Sundresh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The common question which arises for consideration in this batch\r\nof Civil Appeals is: whether the appellants – assessees are liable to\r\npay tax under the Interest-Tax Act, 19741 on the interest component\r\nincluded in the hire-purchase instalments paid under the hirepurchase agreement?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n3. The facts, in brief, are that the appellants – assessees are nonbanking finance and leasing companies registered with the Reserve\r\nBank of India. Some of the appellants – assessees have been\r\nreclassified as hire-purchase finance companies.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. The contention of the appellants – assessees is that under a hirepurchase agreement, they hire out a vehicle to the customer and\r\nreceive hire-purchase instalments, and not interest on loans and\r\nadvances. As per the findings of fact recorded by the Income Tax\r\nAppellate Tribunal\r\n2\r\n, the hirer has acknowledged that the appellants\r\n– assessees are the owners of the vehicle. As per the hire-purchase\r\nagreements, the hirer must pay rent to the owner during the hiring\r\nas per the sums mentioned in the agreement on the dates\r\nmentioned therein. Further, the hirer has to take proper care of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">vehicle and keep it in good condition. He has to also pay all rents,\r\nrates, taxes and outgoings payable. The hirer must keep the vehicle\r\nin his sole custody and possession at the address mentioned in the\r\nagreement, or such other place as the owner has previously\r\nconsented to in writing. The owner or any person authorised by him\r\nin writing is entitled to inspect the vehicle at all reasonable times\r\nduring the period of hire. The hirer may, at any time, determine the\r\nhire-purchase agreement by delivering the vehicle at his own cost\r\nto the owners. If the hirer fails to pay the hire instalments within the\r\nstipulated time, becomes insolvent, pledges or sells, or attempts to\r\npledge or sell or otherwise alienate or transfer the vehicle, or does\r\nor suffer any act or thing whereby, or in consequence of which, the\r\nvehicle may be distrained, seized or taken into execution under\r\nlegal process, or breaks or fails to perform or observe any condition\r\nas mentioned in the hire-purchase agreement, the owner is entitled\r\nto forthwith determine the agreement and, thereupon, entitled to\r\nenter the place where the vehicle is kept and seize, remove and\r\nretake possession thereof. The owner is also entitled to sue for all\r\nthe instalments due, damages for breach of the agreement, and the\r\ncost in retaking possession of the vehicle. The owners, if agreeable,\r\nmay permit the hirer to have the registration of the vehicle in his\r\nown name, provided that the hirer shall transfer the registration in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the name of the owner whenever required to do so by the owner,\r\nespecially when the hirer commits breach of any of the conditions\r\nof the agreement, due to which the owners are obliged to seize the\r\nvehicle.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. As noticed above, this judgment in Sundaram Finance Limited\r\n(supra) relates to the true nature of hire in hire-purchase\r\nagreements as in the context of the sales tax enactment. In the\r\npresent case, however, we are dealing with and interpreting Section\r\n2(7) of the Act, which has been interpreted in two decisions, that is,\r\nin the case of Sahara India Savings and Investment Corporation\r\nLimited (supra) and State Bank of Patiala Through General\r\nManager (supra), which have given a very limited and restricted\r\nmeaning to Section 2(7) of the Act as interest directly arising “on”\r\nloans and advances, and not any other interest, be it interest\r\nearned on investment or interest payable on delayed payment of\r\nthe discounted bill of exchange.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. Taxation depends upon the language of the charging section and\r\nwhat is brought to tax within the four corners of the charging section.\r\nTherefore, one should be careful and cautious when applying the\r\nratio of judgments relating to one tax enactment as a precedent in\r\na case relating to another tax enactment. This rule of caution is\r\nimportant and should not be overlooked, more so when the\r\nlanguage of the enactment and the object and purpose of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">enactment are different. This ratio is somewhat expressed by this\r\nCourt in Association of Leasing and Financial Service\r\nCompanies v. Union of India and Others16, wherein in the context\r\nof levy of service tax by Section 65(105)(zm) read with section\r\n65(12) of the Finance Act, 1994, as amended, banking and financial\r\nservices were brought to tax. In the context of the said enactment,\r\nthis Court deemed it appropriate to distinguish between financial\r\nlease and operating lease and held that the services rendered in\r\nthe former case would be taxable, whereas the latter would fall out\r\nof the tax net. In this context, it was observed that non-banking\r\nfinancial companies are essentially loan companies, but they could,\r\nin addition thereto, be in the business of equipment leasing, hirepurchase finance and investment. In case of bailment termed as\r\n“hire”, the bailee receives both possession of the chattel and the\r\nright to use it in return for remuneration. On the other hand,\r\nequipment leasing is long-term financing which helps the borrower\r\nto raise funds without outright payment in the first instance. Here,\r\nthe “interest” element cannot be compared to consideration for\r\nlease/hire, which is in the nature of remuneration (consideration) for\r\nhire. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. Findings of fact generally recorded by the ITAT are treated as\r\nconclusive. The High Court can interfere with the findings of fact\r\nwhile deciding a substantial question of law when the findings are\r\nnot supported by the material on record, so as to be treated as\r\nperverse.17 For this, however, the High Court must frame a\r\nseparate substantial question of law and only then interfere with the\r\nfindings of fact by the ITAT, while applying the strict parameters. In\r\nthe present case, the High Court did not frame a specific substantial\r\nquestion of law and thus, the interference with the findings of fact is\r\nunwarranted. This is not to say that the tax authorities are not\r\nentitled to examine the surrounding facts and circumstances to\r\nascertain the true character and nature of the transaction,\r\nregardless of the nomenclature given by the parties.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. Given the aforesaid legal position, we may have even remanded\r\nthe matter to the assessing officer for fresh adjudication and to reexamine all the transactions in light of the aforesaid ratio and\r\nreasoning, keeping in mind the dictum laid in Sahara India Savings\r\nand Investment Corporation Limited (supra) and State Bank of\r\nPatiala Through General Manager (supra) to rule out cases where\r\ncamouflage or subterfuge has been adopted to avoid payment of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">interest tax. This would have entailed not only looking at the\r\ndocuments but also several other factors, which would have meant\r\ngetting information and ascertainment of facts in detail from the\r\nassessee and the hirer. However, at this distinct point of time, we\r\ndo not think that it would be appropriate to pass an order of remand.\r\nIt is to be also noted that the Act has ceased to operate with effect\r\nfrom 31st March 2000.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>21. Recording the aforesaid, we allow the present appeals and set\r\naside the impugned judgments. The additions made by the\r\nassessing officer are set aside and the orders passed by the ITAT\r\ndeleting the additions in the case of the appellant – M/s. Muthoot\r\nLeasing and Finance Limited and other cases are upheld. In the\r\nfacts of the present case, there would be no order as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f9797751f8a20a4a3df7af73a335b077.jpeg', '8b75a6bc4554abdc8dad8deb133358a9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-05', 1, '', '', '2023-01-04 15:05:20', '2023-01-05 08:47:36'),
(2531, 'FOXTJOZSweGVP0fvFe92HsSSf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'While government can deviate from the route of tenders or public auctions for the grant of contracts, the deviation must not be discriminatory or arbitrary. Supreme Court directs that even the Ayurvedic medicines must be procured only through tender.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Indian Medicines Pharmaceuticals Corporation Ltd Vs Kerala Ayurvedic Co Operative Society Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6693 of 2022 decided on 3 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice Dhananjaya Y Chandrachud and Justice Hima Kohli.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The first respondent, Kerala Ayurvedic Co-operative Society Limited,\r\ninstituted proceedings before the Lucknow Bench of the High Court of Judicature\r\nat Allahabad under Article 226 of the Constitution to challenge an order for the\r\npurchase of Ayurvedic medicines issued by the State of Uttar Pradesh in favour of\r\nIndian Medicines Pharmaceutical Corporation Limited. By a judgment dated 18\r\nOctober 2019, a Division Bench of the High Court allowed the petition and directed\r\nthat the State of Uttar Pradesh must purchase Ayurvedic medicines by adopting a\r\ntransparent process after inviting tenders. The State of Uttar Pradesh and IMPCL\r\ninstituted proceedings under Article 136 of the Constitution against the judgment\r\nof the High Court. The principle issue is whether, in view of paragraph 4(vi)(b) of\r\nthe Operating Guidelines of the National AYSUH Mission , the appellant could\r\nhave procured Ayurvedic drugs solely from IMPCL without inviting tenders.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2 In September 2014, the Department of AYUSH, Ministry of Health and\r\nFamily Welfare, Government of India launched NAM, inter alia, to promote the\r\nAYUSH medical system and provide cost-effective AYUSH Services. Paragraph\r\n3(ii) of the Operational Guidelines of NAM provides that 75 percent of the\r\nadmissible assistance will be provided as grant-in-aid by the Central Government\r\nwhile the remaining 25 percent must be met by the States, except in the NorthEastern States where the assistance by the Centre and the States shall be in the\r\nratio of 90:10</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30 The argument that the procurement of Ayurvedic drugs from IMPCL would\r\nfall within the exceptional circumstances (assurance of quality medicines) is\r\nerroneous. The submission of the appellant that IMPCL is the sole producer of\r\nquality Ayurvedic medicines is based on surmises and conjectures without any\r\ncogent material to support the claim.15 In fact, the notification of 2 January 2019\r\nissued by the Ministry of AYUSH stipulates that 50 percent of the grant-in-aid has\r\nto be used to procure medicines from IMPCL or other Central/State PSUs’ or\r\npharmacies under the State-Governments and co-operatives. It is open to the\r\nappellant to procure medicines using any method other than tender, so long as it\r\nis not arbitrary. The claim of the appellant is that it deviated from the rule of tender\r\nbecause IMPCL is the only establishment that produces quality medicines.\r\nHowever, there is no material to substantiate the claim that IMPCL is the only\r\nestablishment which manufactures ‘quality’ medicines to the exclusion of other\r\nestablishments mentioned in paragraph 4(vi)(b). The appellant has been unable to\r\ndischarge the burden placed on it by producing cogent material demonstrating that\r\nthe procurement of medicines through nomination is warranted because of the\r\nexistence of exceptional circumstances bearing on need for quality. The action of\r\nthe appellants of procuring medicines only from IMPCL to the exclusion of the other\r\nestablishments mentioned in paragraph 4(vi)(c) is arbitrary and violative of Article\r\n14 of the Constitution.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>31 In the given circumstances, inviting tenders from the entities mentioned in\r\nparagraph 4(vi)(b) is the most transparent and non-arbitrary method of allocation\r\nthat can be undertaken. Hence, the appellant must henceforth purchase Ayurvedic\r\nmedicines only through a free and transparent procedure such as tenders. The\r\nappellant may deviate from this rule and procure medicines by nomination only if\r\nexceptional circumstances exist. In such a situation, the appellant must\r\ndemonstrate the existence of exceptional circumstances on the basis of cogent\r\nmaterial.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32 For the reasons indicated above, the appeals against the judgment of the\r\nLucknow Bench of the High Court of Judicature at Allahabad dated 18 October\r\n2019 are dismissed. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34 The intervention applicant submitted as follows:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Policies of the Central and State government stipulate that 25 percent of the\r\nmedicines shall be procured from MSMEs. Thus, the term ‘at least 50%’ in\r\nparagraph 4(vi)(b) of the Operational Guidelines must be read as limiting the\r\nprocurement from establishments in paragraph 4(vi)(b) to 50 percent and\r\ngiving other manufacturers a level playing field under paragraph 4(vi)(c);\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) The Central and the State Governments have notified procurement policies\r\ndirecting that a certain percent of the procurement must be from the\r\nMSMEs’. The procurement of medicines from IMPCL on nomination is\r\ncontrary to the procurement policies notified by the Government;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(iii) IMPCL also sells products in the open market. Thus, the argument that\r\nIMPCL is established solely to supply medicines to the Government is\r\nmisleading; and </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(iv) IMPCL has not submitted records to show that the other manufacturers\r\ncannot supply equivalent or better-quality drugs.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>35 The intervention applications seek to enlarge the scope of the Special Leave\r\nPetition. The issue before this Court falls squarely on the interpretation of\r\nparagraph 4(vi)(b). However, the intervention applicant has prayed that in\r\naccordance with the policies of the State and the Central Government, a minimum\r\npercent of Ayurvedic drugs must be procured from MSMEs under paragraph\r\n4(vi)(c). This is beyond the scope of the instant Special Leave Petition.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n36 For the reasons indicated above, IA 9631 of 2020 and IA No. 46786 of 2022\r\nare dismissed. The interveners would have to follow their own independent\r\nremedies in accordance with law.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>37 Pending application(s), if any, stand disposed of.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3aba4a4799dd1636b8342da1ec4e4990.jpg', '604ed18f6a24d02c23944bfcccdf63da.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-05', 1, '', '', '2023-01-04 15:17:44', '2023-01-05 12:29:50'),
(2532, 'cm3plwrf2A0cXpcuxRJQQqbIy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Premature transfer cannot be ordered simply because of the complaints against the public servant. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Patil Shashi Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 104846 of 2022 decided on 15 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj and Justice G Basavaraja.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The brief facts of the case are;\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4.1. The petitioner is a doctor by profession\r\nemployed with the Health and Family Welfare\r\nDepartment and was being considered to be\r\nappointed as Dermatologist in the Government\r\nTaluka Hospital, Naragund. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4.2. The petitioner claims to be a holder of MBBS\r\nand DVP degrees, who was initially appointed\r\nas a Medical Officer on 18.08.1997. She was\r\nlater on designated as Senior Medical Officer\r\nand was appointed as a District Leprosy Control\r\nOfficer in the office of the District Health and\r\nFamily Welfare Services, Dharwad.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4.12. In answering to the submission made by the\r\npetitioner that there was a complaint which has\r\nbeen filed against respondent No.4 which was\r\nserious in nature, the Tribunal came to a\r\nconclusion that there is no action in terms of\r\ndisciplinary proceedings which has been\r\ninitiated against respondent No.4 and in the\r\nevent of such action being initiated, the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Government could have suspended the services\r\nof respondent No.4 which has not been done.\r\nMerely because a complaint is filed, the transfer\r\nmade in pursuance thereto cannot be said to be\r\nin the public interest or for administrative\r\nexigency and it is in that background that the\r\naforesaid order was passed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. From the submissions which have been made, the\r\npoints that would arise for consideration are:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.1. Whether an officer of the Government can be\r\ntransferred prematurely, and if so, in what\r\ncircumstances?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.2. Can an Officer of the Government be\r\ntransferred because certain complaints have\r\nbeen received against him?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.3. In the present case, whether the order of the\r\nTribunal suffers from any legal inference\r\nrequiring interference of this Court?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.4. What order? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Answer to point No.1: Whether an officer of the\r\nGovernment can be transferred prematurely,\r\nand if so, in what circumstances?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.9. In view of the above, we answer point number\r\nNo.(i) by holding that the tenure of an Officer\r\nas prescribed under Clause (8) of the guidelines\r\nregarding the transfer of Government servants\r\ncontained in the Government Order No.DPAR <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">22 STR 2013, Bangalore dated 07.06.2013 has\r\nto be followed and the minimum period of stay\r\nas prescribed therein has to be given effect to.\r\nIf a premature transfer or continuance is\r\nrequired, then the same would have to satisfy\r\nthe requirements of Sub-clause (a) of Clause\r\n(9) of the said guidelines or in the alternative in\r\nterms of Sub-clause (b) of Clause(9), prior\r\napproval of the Hon’ble Chief Minister has to be\r\nobtained, which is required to be accompanied\r\nby some basic reasons as to why the transfer is\r\nbeing affected.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Answer to Point No.(ii) : Can an Officer of the\r\nGovernment be transferred because certain\r\ncomplaints have been received against him?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11.8. In the above circumstances, we answer point\r\nNo.2 by holding that, in the event of any\r\nserious complaint being received against a\r\nparticular Government Officer, transfer is not\r\nthe remedy available. The concerned authority\r\nwould be required to hold an enquiry and if the\r\nallegations made have any veracity requiring\r\ndisciplinary action, disciplinary proceedings\r\nwould have to be initiated and during the\r\ninterregnum, the delinquent officer could be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">placed under suspension, if there is an\r\napprehension that the delinquent officer would\r\ninterfere with the enquiry, as is in the present\r\ncase.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. Answer to point No.(iii): In the present case,\r\nwhether the order of the Tribunal suffers from\r\nany legal inference requiring interference of\r\nthis Court?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12.1. In view of our answer to about two points and\r\nthe Tribunal having considered all the relevant\r\naspects to come to a conclusion that the\r\ntransfer could not be affected without initiating\r\ndisciplinary proceedings, we do not find any\r\ninfirmity in the order passed by the Tribunal.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. Answer to Point No.(iv) What order?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. The Writ Petition stands dismissed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4139af7bc9183f6733800732f8eadb66.jpeg', '9dcbe3474754075d408ed81961d16228.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-05', 1, '', '', '2023-01-04 16:09:38', '2023-01-05 03:22:45');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2533, '4uLoS35AvEzCdQGRQuO1p74ja', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Borrower of motor vehicle steps into the shoes of the owner of the vehicle and hence the borrower of the vehicle or his legal heirs are not entitled for compensation. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pushpalata and others Vs Sharanabasappa and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>MFA 101420 of 2019 decided on 16 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Sunil Dutt Yadav and Justice Umesh M Adiga.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. It was the case of the appellants/petitioners\r\nthat on 13.04.2016 at 8.30 p.m., the deceased\r\nShambulinga was riding the motorcycle bearing KA-37/Y0712 and going on Sindhanur-Gangavathi main road; At\r\nPragatinagar, pedestrian by name Hulugappa came across\r\nthe road. Deceased tried to avoid the accident and in that\r\nprocess, he lost control of the motorcycle and fell down.\r\nHe sustained grievous injuries and he was shifted to SDM\r\nHospital, Dharwad; While undergoing treatment, he\r\nsuccumbed to the injuries on 01.05.2016.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n4. It was further contended that the deceased\r\nwas aged about 25 years, working as driver and earning <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rs.3,333/- p.m. Claimants were depending upon the\r\nearnings of the deceased, who are his wife, minor son,\r\nbrother and sister respectively of the deceased\r\nShambhulingappa. With these reasons, petitioners claimed\r\ncompensation of Rs.22,88,200/-. This petition was filed\r\nunder Section 163-A of M.V.Act.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The following points emerge for our\r\ndetermination:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i) Whether petition is maintainable and\r\nclaimants are entitled for compensation?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\nii) What order? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. The submission of the learned counsel for the\r\nappelalnt is not tenable. The facts in the case of\r\nChandrakanta Tiwari (supra) are different from the\r\nfacts of the present case. In the above referred case, the\r\ndeceased was a pillion rider and the rider of the motorcycle\r\nwas different person. Therefore, it was held that pillion\r\nrider was third party and hence, claimants were entitled\r\nfor compensation. But in the present case, the deceased\r\nhimself was riding the motorcycle and according to petition\r\naverments, he was riding the motorcycle in a high speed\r\nand he could not control the vehicle thereby he dashed\r\nagainst a pedestrian and caused the accident. Therefore,\r\nhe stepped into the shoes of the owner of the vehicle and\r\nhe hence, he cannot maintain claim petition against the\r\ninsurance company.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. In this case also, the deceased steps into the\r\nshoes of the owner of the vehicle, the claimants cannot\r\nclaim compensation against the insurance company of the\r\nsaid motorcycle. However, in the above said case, as per\r\nthe contract of insurance, owner-cum-driver was entitled\r\ncompensation of Rs.1,00,000/-. Therefore, Hon’ble <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Supreme Court was awarded compensation of\r\nRs.1,00,000/- to the claimants.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>17. In this case, policy of insurance was produced\r\nas Ex.R1. As per it, premium of Rs.50/- was collected to\r\ncover the risk of personal accident of owner, driver to the\r\nmaximum limit of Rs.1,00,000/-. According to the said\r\ncontract of insurance, claimants are entitled for\r\ncompensation of Rs.1,00,000/-. To that extent, respondent\r\nNo.2 is liable to pay the compensation and the claimants\r\nare not entitled for compensation as claimed in the\r\npetition.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18. Claimants are the wife, minor son, brother and\r\nsister of the deceased. Brother and sister are not directly\r\ndepending on the deceased and they are majors.\r\nTherefore, the said meager amount of compensation has\r\nto be equally apportioned to petitioner Nos.1 and 2 with\r\ninterest at the rate of 6% p.a. from the date of petition till\r\nrealization of the entire amount.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The appeal is allowed in part with costs. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'dbb1ddde8bbc6988bc4ddfc187e206ba.jpeg', '0b1ed579f8891682fe2cd32aa3659d09.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-06', 1, '', '', '2023-01-05 13:05:07', '2023-01-06 03:22:35'),
(2534, 'sxYhhsgKb4eBAnV7KVJdWOuzw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Anti Defection Law. In the absence of any steps taken to serve whip in the manner known to law i.e., RPAD and courier or by personal service, mere affixture of the whip on the door is not sufficient. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Savita and others Vs The District President, BJP and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 104407 of 2021 decided on 16 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The President of the State BJP party, by his\r\ncommunication dated 01.11.2020, had authorised the District\r\nPresident of the BJP party to decide the manner in which the\r\nmembers of the BJP were supposed to conduct themselves and\r\nalso decide in whose favour the vote was to be cast for the\r\nelections which was scheduled to be conducted on 09.11.2020\r\nfor the post of President and Vice-President.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. In this meeting, it was resolved therein that the 3rd\r\nrespondent was to be the official contestant of the BJP for the\r\npost of President and the 2nd respondent was to be the official\r\ncontestant of the BJP for the post of Vice-President.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. As the petitioners had cast their votes in\r\ncontravention of the direction, a complaint was lodged for\r\ndisqualifying the petitioners under the provisions of the\r\nKarnataka Local Authorities (Prohibition of Defection) Act, 1987\r\n(for short, the Act).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. The Deputy Commissioner then proceeded to hold\r\nthat the President was authorized to issue the whip and since\r\nthe whip was to the knowledge of the petitioners and yet they\r\nhad voted contrary to the whip, they had incurred the\r\ndisqualification as prescribed under the Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. The petitioners’ being aggrieved by this order of\r\ndisqualification, are before this Court by way of this writ\r\npetition. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>31. In the instant case, the provisions of Section 3(b)\r\nwould be relevant and since the case relates to voting by a\r\nCouncilor contrary to a direction issued, only with reference to\r\nthis factual aspect, the matter is analyzed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32. A plain reading of Section 3(b) would indicate that if\r\na councilor belonging to any political party (or by a person\r\nauthorised by the party) votes contrary to any direction issued\r\nby the political party to which he belongs without obtaining the\r\nprior permission from the such party, he attracts the distinct\r\npossibility of being disqualified to continue as a Councilor.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">51. It is to be stated here that when service of notice,\r\nby way of affixture is effected by the person interested in the\r\nservice of notice, it creates a suspicion as to whether there was\r\nactual service of the notice. Since the consequence of acting\r\ncontrary to the direction entails serious consequence such a </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">disqualification, it is essential that an acceptable mode of\r\nservice be adopted for establishing that a person belonging to a\r\npolitical party was suffered a disqualification.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>52. The State Government could have prescribed a\r\nmode of service of notice by framing rules in exercise of its\r\npower conferred under Section 9 of the Act, 1987. However,\r\nthe Government despite the lapse of 35 years since enactment\r\nof the Act, 1987 is yet to frame rules thereby creating a grey\r\narea in the matter of effecting service of a direction issued by\r\nthe political party. This grey area is prone to misuse by both\r\nthe political party as well as by the members of the political\r\nparty and both of them are obviously taking advantage of this\r\ngrey area to contend that there has been either a proper\r\nservice or there has been no service as the case may be to\r\neffectively defeat the provisions of the Act, 1987.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">53. In the instant case, since there is no clear proof\r\nthat the petitioners were aware of the affixture and since the\r\nDeputy Commissioner has himself noticed that (a) the 3rd\r\npetitioner had stated that the notice affixed was on the door of\r\na house in which she was not residing but her mother-in-law\r\nwas residing (b) the 1st petitioner had denied that the door on</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which the notice was affixed was not the door of her house and\r\n(c) the 2nd petitioner had denied the affixture on the door of her\r\nhouse, it would be unsafe to act upon the alleged service to\r\nhold that the petitioners were aware of the direction.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>55. In a given case, there could be a candidate officially\r\ndeclared by the political party, without there being a direction\r\nto vote for the official candidate. Unless there is a specific\r\ndirection issued to all its members cast the vote only in favour\r\nof the official candidate, the provisions of the 1987 Act would\r\nnot stand attracted.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>59. Since it is not established that the direction to vote\r\nin favour of respondent Nos.2 and 3 has not been established <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by the political party, the decision rendered by the Deputy\r\ncommissioner to the effect that petitioners had acted contrary\r\nto the direction issued by the political party and they have\r\nthereby incurred a disqualification cannot be sustained and\r\nsame is quashed. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Accordingly, writ petition is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7b1ce3178f8d5d852ee095ee8c94331f.JPG', '825f6fbe5bd1788a24c64506bdbf3573.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-06', 1, '', '', '2023-01-05 13:48:15', '2023-01-06 10:35:13'),
(2535, '1MLGplP6hSb2ZDQQzIK2V6xAQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Order XXIII Rule 1(3)(b) of CPC applies even to writ proceedings. Withdrawal of writ petition with liberty to file fresh petition on the same cause of action does not act as resjudicata. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sujatha Vijay and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.A. 4861 of 2010 decided on 3 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Alok Aradhe and Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. Brief facts of the case as revealed from the records which\r\nmay be necessary for the purpose of disposal of this appeal are, the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appellants claim to be the owners of land bearing Survey No.104/2 to\r\n104/7 at Gottigere Village, Bannerghatta Road, Bengaluru South Taluk\r\nwhich totally measures 13 acres 7 guntas (hereinafter referred to as\r\n\'the lands in question\'). The lands in question were acquired by the\r\nKarnataka Industrial Area Development Board (hereinafter referred to\r\nas the \'Board\' for short) for the purpose of construction of interchange,\r\nramp and service road to the peripheral road that was being built by\r\nrespondent Nos.12 & 13 pursuant to Frame Work Agreement (FWA)\r\nentered into between respondent No.12 and the State Government on\r\n03.04.1997.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. The State Government, therefore, had issued notification\r\nunder Sections 3(1) and 1(3) of the Karnataka Industrial Areas\r\nDevelopment Act, 1966 (hereinafter referred to as the \'Act of 1966\' for\r\nshort) on 24.01.2003. Thereafter, preliminary notification under\r\nSection 28(1) of the Act of 1966 was issued on 29.01.2003. The\r\nappellants herein had filed objections to the said preliminary\r\nnotification and also challenged the preliminary notification by filing\r\nW.P.No.20729-34/2003 before this Court which was disposed of on\r\n18.11.2005 directing the concerned authorities to consider whether\r\nthe lands in question were actually required for the project and\r\nproceed thereafter.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. The questions that arise for consideration in this intra court\r\nappeal are:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b> 1) Whether the notification issued under Section 4 of Act,\r\nof 1966 by respondent No.1 on 19.10.2007 is still valid and\r\ncontinuation of acquisition proceedings in respect of lands in\r\nquestion even thereafter, is bad in law?</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>\r\n 2) Whether the lands in question are required for the\r\npurpose of project by respondent Nos.12 and 13 and if not whether\r\nthe appellants/owners are entitled for restoration of the said lands?\r\n</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b> 3) Whether the writ petition filed by the appellants in\r\nW.P.No.39277-278/2010 is hit by principles of res judicata?<br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point no.1:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. Therefore, it is evident that in all aforesaid proceedings,\r\nthe appellants as well as the State Government have proceeded as if\r\nthe de-notification order dated 19.10.2007 was not in existence and\r\nmaterial available on record would go to show that after issuance of\r\nFinal Notification dated 02.09.2009, the appellants have given\r\nrepresentation on 11.10.2010 and 03.11.2010 to delete the lands in\r\nquestion from the acquisition proceedings and considering the said\r\nrepresentation, Nodal Agency had recommended for deleting the lands\r\nin question from the acquisition proceedings. Liberty was granted to\r\nthe appellants to withdraw W.P.No.26793-95/2009 and file a fresh writ\r\npetition on the same cause of action, considering the submission made\r\nby them that competent authority will not consider the\r\nrecommendation by nodal agency for deletion of lands in question\r\nfrom the acquisition proceedings, if the writ petitions are pending\r\nbefore this Court. This Court was persuaded to believe that pendency\r\nof W.P.Nos.26793-795/2009 was coming in the way of the competent\r\nauthorities considering the recommendation made by the nodal agency\r\nfor de-notification of the lands in question. The appellants now cannot\r\nbe permitted to contradict their said stand taken in the earlier\r\nproceedings, wherein they were permitted to file a fresh petition on\r\nthe same cause of action. The doctrine of estoppel also does not\r\npermit the appellant to take a different stand in this petition. Estoppel <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is a judicial device whereby a court may prevent or estop a person\r\nfrom making assertions or going back on his word or earlier statement.\r\nIt is legal doctrine to prevent or estop the party from doing something\r\nthat is inconsistent with his earlier actions. Principle of estoppel\r\nprohibits a person from contradicting what was earlier said by him in a\r\ncourt of law. The principle of estoppel by pleading is squarely attracted\r\nin this case. In the said background, it is not open for the appellants\r\nto now raise a contention in this proceedings that de-notification order\r\npassed on 19.10.2007 is still valid and all acquisition proceedings\r\npursuant to the same is unsustainable. Accordingly, we answer point\r\nNo.1 for consideration in the negative.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point no.2 :</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>46. It is trite law that on publication of notification under\r\nSection 28(4) of the Act of 1966, the lands which are subject matter of\r\nsuch notification get vested in the State free from encumbrance, by\r\noperation of Section 28(5) of the Act of 1966. Once the lands gets\r\nvested with the State, the question of restoring the said lands to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">owner or the question of deleting the said land from acquisition\r\nproceedings does not arise and the same is not permissible in law.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>47. Under the circumstances, we answer, point no.2 for\r\nconsideration in the negative and state that lands in question are\r\nrequired for the purpose of project and the appellants are not entitled\r\nto restoration of land.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point no.3: <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>54. As per Order XXIII Rule 1(3) of CPC, suit may be\r\npermitted to be withdrawn with liberty to institute fresh suit when the\r\ncourt is satisfied that the plaintiff has made out a case in terms of\r\nOrder XXIII Rule 1(3)(a) or (b) of CPC. That is, existence of \'\'formal\r\ndefect\'\' or \"sufficient grounds\". The very same principle is applicable\r\neven to the case of withdrawal of writ petition. In the present case\r\nliberty has been granted to appellants to file fresh writ petition on\r\nsame cause of action under Order XXIII Rule 1(3)(b) of CPC, since the\r\nCourt had found sufficient grounds for granting such prayer.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>56. W.P.No.20729-34/2003 filed by appellants challenging the\r\npreliminary notification was disposed of by this Court with a direction\r\nto the concerned authorities to consider whether the lands in question\r\nwere required for the project and proceed thereafter. The concerned\r\nauthority thereafter rejected the objections raised by appellants and\r\npassed order under Section 28(3) of the Act of 1966 recommending to\r\nissue final notification under Section 28(4) of the Act of 1966. The\r\nappellants had filed W.P.No.26793-795/2009 challenging the\r\npreliminary and final notifications and said writ petitions were\r\npermitted to be withdrawn with liberty to file fresh writ petition on the\r\nsame cause of action and thereafter the present writ petition in\r\nW.P.Nos.39277-278/2010 have been filed by the appellants\r\nchallenging the preliminary and final notifications issued in respect of\r\nthe lands in question.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 57. In the other writ petitions that were filed by the appellants\r\nprior to filing of W.P.No.26793-795/2009, they had not questioned the\r\nnotification issued under Section 28(4) and as on the date of filing of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the earlier petitions, Section 28(4) notification was not at all issued.\r\nW.P.No.14287/2009 was not filed challenging the preliminary\r\nnotification or final notification as contended by the learned counsel for\r\nrespondent No.12. Section 28(4) notification was issued on\r\n02.09.2009 and for the first time, it was questioned in W.P.Nos.26793-\r\n795/2009 and since the said writ petitions were withdrawn with liberty\r\nto file fresh petition on the same cause of action, we are of the\r\nconsidered view that it cannot be said that the present writ petitions in\r\nW.P.Nos.39277-278/2010 or this intra court appeal arising from the\r\nsaid writ petition is hit by the principles of res judicata. Moreover, the\r\nHon\'ble Apex Court while permitting the appellants to withdraw SLP\r\nNo.10556/2009 which arose from the order passed in\r\nW.P.No.3568/2007, has reserved liberty to appellants to prosecute this\r\nappeal. Under the circumstances, we answer point no.3 for\r\nconsideration in the negative.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 58. In view of the foregoing analysis of the case, we are of the\r\nconsidered view that this intra court appeal is devoid of any merit and\r\naccordingly, the same is dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ad6a2a7943ef35b295182e4964fe2eca.jpeg', '0408de2457f9d003f295fe0cbc540ca3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-06', 1, '', '', '2023-01-05 14:14:43', '2023-01-06 08:50:39'),
(2536, 'cwUQixewhKMTDEEuQhqTJBzbl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SEBI is the real-time security market regulator. Scrutiny and examination of a transaction allegedly in violation of the SEBI (PIT) Regulations will have to be agitated only before the SEBI. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>IFB Agro Industries Limited Vs SICGIL India Limited and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2030 of 2019 decided on 4 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A.S. Bopanna and Justice Pamidighantam Sri Narasimha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">1. The short question for our consideration in this appeal relates\r\nto the scope of the rectificatory jurisdiction of the National\r\nCompany Law Tribunal under Section 59 of the Companies Act,\r\n20131. In this context, we are called upon to determine the\r\nappropriate forum for adjudication and determination of violations\r\nof the Securities and Exchange Board of India (Substantial\r\nAcquisition of Shares and Takeover) Regulations, 19972, and\r\nSecurities and Exchange Board of India (Prohibition of Insider </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Trading) Regulations, 19923, framed under the Securities and\r\nExchange Board of India Act, 19924. We have answered both the\r\nquestions. On the first issue, following the decision of this Court\r\nin Ammonia Supplies Corporation (P) Ltd. v. Modern Plastic\r\nContainers Pvt. Ltd. & Ors.5, we have held that the rectificatory\r\njurisdiction under Section 59 of the 2013 Act is summary in nature\r\nand not intended to be exercised where there are contested facts\r\nand disputed questions. On the second issue, we have held that\r\ntransactions falling within the jurisdiction of Regulatory bodies\r\ncreated under a statute must necessarily be subjected to their exante scrutiny, enquiry and adjudication. We have, therefore,\r\nrejected the contention that the National Company Law Tribunal\r\nunder Section 59 exercises a parallel jurisdiction with Securities\r\nand Exchange Board of India for addressing violations of the\r\nRegulations framed under the SEBI Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. This is an appeal against the judgment of the National\r\nCompany Law Appellate Tribunal7 (hereinafter referred to as\r\n‘Appellate Tribunal’) whereby the Appellate Tribunal set aside the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">judgment of the National Company Law Tribunal (hereinafter\r\nreferred to as the ‘Tribunal’), allowing the company petition filed\r\nby the Appellant under Section 111A of the Companies Act, 19568,\r\n(which is Section 59 of the 2013 Act), for rectification of Members\r\nRegister. The Tribunal while allowing the petition, directed the\r\nAppellant to buy-back its shares which were held by the\r\nRespondents. In appeal, the Appellate Tribunal set aside this\r\ndirection on the ground that the Tribunal exceeded its jurisdiction.\r\nIt is this order of the Appellate Tribunal which is impugned before\r\nus.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. The Appellant herein is a listed company engaged in the\r\nmanufacture and sale of rectified spirit, country liquor, marine\r\nproducts, carbon dioxide gas etc. Respondent No. 1 is also a listed\r\ncompany which is engaged in the business of producing carbon\r\ndioxide gas and dry ice. Respondent No. 2 is the managing director\r\nof Respondent No. 1, Respondent No. 3 is the wife of Respondent\r\nNo. 2, and Respondent Nos. 4-6 are close relatives of Respondent\r\nNos. 2-3. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. Having heard both sides, we formulate the following\r\nquestions for our consideration. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">What is the scope and ambit of Section 111A of the 1956 Act, as\r\namended by Section 59 of the 2013 Act, to rectify the register of\r\nmembers? Which is the appropriate forum for adjudication and\r\ndetermination of violations and consequent actions under the SEBI\r\n(SAST) Regulations 1997 and the SEBI (PIT) Regulations 1992?</span><span style=\"font-size: 12pt;\"> </span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><span style=\"font-size: 12pt;\"><b><br></b></span></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. The principle enunciated in Ammonia’s case relating to the\r\njurisdiction of a Tribunal with respect to the rectification of the\r\nregister is well-recognized and consistently followed. Sub-section\r\n(3) of Section 59 recognizes the overarching right to hold and\r\ntransfer securities with the concomitant entitlement of voting. This\r\nis a precious right, and that is the reason why the Parliament\r\nfound it necessary to caution that the provision of this Section\r\nshall not restrict the right of a holder of securities, to transfer such\r\nsecurities. This is another feature which is indicative of the limited\r\nscope and extent of the power of rectification of the register.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. For the reason stated above, we are of the opinion that the\r\ncompany petition under Section 111A of the 1956 Act for a\r\ndeclaration that the acquisition of shares by the Respondents as\r\nnull and void is misconceived. The Tribunal should have directed\r\nthe Appellant to seek such a declaration before the appropriate\r\nforum. The Appellate Tribunal is, therefore, justified in allowing\r\nthe appeal and setting aside the order of the Tribunal.<i><span style=\"font-size: 12pt;\"><br></span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><span style=\"font-size: 12pt;\"><b><br></b></span></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. The regulatory jurisdiction of the Board also includes ex-ante\r\npowers to predict a possible violation and take preventive\r\nmeasures. The exercise of ex-ante jurisdiction necessitates the\r\ncalling of information as provided in Sections 11(2)(i), 11(2)(ia) and\r\n11(2)(ib) of the SEBI Act. Where the Board has a reasonable ground\r\nto believe that a transaction in the securities market is going to\r\ntake place in a manner detrimental to the interests of the\r\nstakeholders or that any intermediary has violated the provisions\r\nof the Act, it may investigate into the matter under Section 11(C)\r\nof the SEBI Act. In other words, being the real-time security market\r\nregulator, the Board is entitled to keep a watch, predict and even\r\nact before a violation occurs. It is in this context, that the SEBI\r\n(SAST) Regulations and the SEBI (PIT) Regulations, with which we\r\nare concerned in this case, are to be understood.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>35. Having considered the comprehensive role of the SEBI in\r\nregulating the securities market with respect to insider trading, we\r\nare of the opinion that the important role of the Regulator cannot\r\nbe circumvented by simply asking for rectification under Section\r\n111A of the 1956 Act. Such an approach is impermissible. The\r\nscrutiny and examination of a transaction allegedly in violation of\r\nthe SEBI (PIT) Regulations will have to be processed through the\r\nregulations and remedies provided therein. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>37. The position with respect to the SEBI (SAST) Regulations is\r\nsimilar to that of the SEBI (PIT) Regulations. Regulation 7 of\r\nChapter III obligates the acquirer of more than 5% shares in a\r\ncompany to disclose the same to the company and the stock\r\nexchange. This is the prohibition, and non-disclosure is punitive.\r\nChapter V deals with investigation and action by the Board, which\r\nincludes the power of the Board to appoint an investigating officer\r\n(Regulation 38), the issuance of show-cause notice to the acquirer\r\n(Regulation 39), the obligation of the investigating authority to\r\nsubmit a report at the earliest (Regulation 41), the duty to supply\r\nthe report to the acquirer and give him an opportunity of hearing\r\nbefore passing penal orders (Regulation 42) and lastly, the powers\r\nof the Board to take action/pass directions under Chapter VI-A\r\nand Section 24 of the SEBI Act (Regulation 44). It is significant to\r\nnote that Regulation 45 provides for penalties for non-compliance\r\nwith the said Regulations. The liability will be in terms of the\r\nRegulations and the SEBI Act. Here again, the SEBI (SAST)\r\nRegulation is a comprehensive scheme providing for inquiry,\r\ninvestigation, submission of report by the investigating officer,  <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">procedural safeguards in favor of the acquirer, and finally, the\r\nrestitutionary order/directions to be passed by the Board. This\r\nwhole procedure cannot be short-circuited by making an\r\napplication under Section 111A of the 1956 Act on the ground that\r\nthere exists parallel jurisdiction with the SEBI and CLB/Tribunal.\r\nThe transaction complained of must suffer scrutiny by the\r\nregulator, and it is only for the regulator to determine a violation\r\nof the provisions of the SEBI Act and the Regulations.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>38. Having considered the matter from a different perspective, we\r\nare of the opinion that the Appellant is not justified in invoking the\r\njurisdiction of the CLB under Section 111A of the Act for violation\r\nof SEBI regulations. We are also of the opinion that the Tribunal\r\ncommitted an error in entertaining and allowing the company\r\npetition filed under Section 111A of the 1956 Act. Though we are\r\nnot in agreement with the reasoning adopted by the Appellate\r\nTribunal in the impugned order, we are in agreement with its\r\nconclusion that the Tribunal exceeded its jurisdiction and\r\ntherefore, the Appellate Tribunal was correct in setting aside the\r\njudgment dated 05.07.2017. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>39. For the reasons stated above, Civil Appeal No. 2030 of 2019\r\narising out of the judgment dated 06.12.2018 in Company Appeal <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(AT) No. 240 of 2017 of the National Company Law Appellate\r\nTribunal, New Delhi stands dismissed. There shall be no order as\r\nto costs.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd5510f5b234382419bc5e968e2090c12.jpeg', '16015c68d4183e263bd808219b03ff9c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-09', 1, '', '', '2023-01-05 15:08:06', '2023-01-09 17:24:25');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2537, 'TZImA7mzDvOEU68cJKhDnrCkE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'In computing limitation period to an application under Section 9, IBC the suspension period under Section 22 (1) of the Sick Industrial Companies (Special Provisions Act, 1985) has be excluded. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sabarmati Gas Limited Vs Shah Alloys Limited.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1669 of 2020 decided on 4 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ajay Rastogi and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This appeal under Section 62 of the Insolvency and\r\nBankruptcy Code, 2016 (IBC) is preferred by Sabarmati\r\nGas Limited (hereinafter referred to as the appellant)\r\nagainst the final judgment dated 19.12.2019 of the\r\nNational Company Law Appellate Tribunal (NCLAT) in\r\nCompany Appeal (AT) (Insolvency) No. 820 of 2019. As\r\nper the same the NCLAT dismissed the appeal preferred\r\nby the appellant against order dated 27.06.2019 in CP\r\n(IB) No. 516/9/NCLT/AHM/2018 of the National Company\r\nLaw Tribunal, Ahmedabad Bench, (NCLT) dismissing the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">application filed under Section 9 of the IBC, in its capacity\r\nas operational creditor of ‘Shah Alloys Limited’\r\n(hereinafter referred to as the ‘respondent’).</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. In the captioned appeal mainly, twin questions of law\r\ncall for consideration id est :-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Whether in computation of the period of\r\nlimitation in regard to an application filed under\r\nSection 9, IBC the period during which the\r\noperational creditor’s right to proceed against or\r\nsue the corporate debtor that remain suspended\r\nby virtue of Section 22 (1) of the Sick Industrial\r\nCompanies (Special Provisions Act, 1985) (SICA)\r\ncan be excluded, as provided under Section 22\r\n(5) of SICA?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) Whether the respondent has raised a\r\ndispute which is describable as \'pre-existing\r\ndispute’ between itself and the appellant <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">warranting dismissal of application under Section\r\n9 of the IBC at the threshold?</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Consideration of the questions, mentioned above\r\nand to be mentioned hereinafter, is called for, in the\r\nfollowing factual background:\r\nThe respondent, for its manufacturing needs,\r\nrequired commercial supply of natural gas. To facilitate\r\nthe same on 30.05.2008 the appellant and the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respondent entered into a Gas Sales Agreement (GSA)\r\nwhereby and whereunder the appellant was having the\r\nobligation to supply natural gas conforming to the\r\nspecifications laid down in Annexure-2, appended to GSA\r\nand it also forms part of the contract. Going by clause\r\n11.2 of GSA, notwithstanding any dispute in relation to\r\nany amount invoiced, the respondent could not withhold\r\npayment in accordance with the GSA. According to the\r\nappellant, the respondent defaulted payment of invoices\r\ninasmuch as it made only partial irregular payments from\r\nNovember, 2011. Meanwhile, the respondent approached\r\nBIFR to get it declared as a ‘sick unit’ and for\r\nrecommendation of a plan for its rehabilitation, in terms\r\nof the provisions under SICA. The reference was admitted\r\nby BIFR as case No. 13 of 2010 and as per order dated\r\n31.08.2010 the respondent was declared as a ‘sick\r\ncompany’. It is the case of the appellant that by virtue of\r\nSection 22 of SICA there was a moratorium on the\r\nrespondent and therefore, it could not have proceeded\r\nagainst the respondent for outstanding dues, thenceforth,\r\nwithout obtaining the permission of the BIFR. On </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">07.08.2012 the appellant stopped the gas supply and\r\nthen, intervened in the pending proceedings before the\r\nBIFR viz., 13 of 2010. On 08.03.2013, as per\r\nMiscellaneous Application No. 432 of 2013 the appellant\r\nsought permission of the BIFR for initiating proceedings\r\nagainst the respondent for recovery of an outstanding\r\ndues of Rs. 4,71,56,095/-. On 09.09.2015, the BIFR\r\npassed an order thereon. Shortly thereafter, to be\r\nprecise, w.e.f. 01.12.2016, SICA was repealed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. We will firstly consider the first question of law\r\narising on account of dismissal of the appellant’s\r\napplication under Section 9, IBC on the ground of being\r\nbarred by limitation. In the light of the aforesaid factual\r\nbackdrop and contentions the appellant would contend\r\nthat the NCLT and NCLAT had failed to look into and\r\nappreciate the cumulative effect of sub-sections (1) and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(5) of Section 22 of SICA while dismissing the application\r\nunder Section 9, IBC as barred by limitation. In\r\nelaboration of the contention, it is submitted that the\r\nNCLT and NCLAT had failed to appreciate that the\r\nrespondent was admitted as a ‘sick company’ by the BIFR\r\nas per its order dated 31.08.2010 and hence, by virtue of\r\nsub-section (5) of Section 22, SICA the period of\r\nsuspension under SICA viz., from 31.08.2010 to\r\n01.12.2016, ought to have been excluded while\r\ncalculating the period of limitation. According to the\r\nappellant, since the application under Section 9, IBC was\r\nfiled on 20.08.2018 granting the benefit of such exclusion\r\nwould have, certainly, put the application well within the\r\nlimitation period of 3 years as provided under Article 137\r\nof the Limitation Act. The learned counsel for the\r\nappellant placed reliance on the decision in Paramjeet\r\nSingh Patheja v. ICDS Ltd.1\r\n, particularly paragraph 43\r\n(vii) therein, to support the contention that there was a\r\nstatutory bar for laying or continuing with any legal\r\nproceeding for realisation of a right vested by law on the\r\nappellant.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. As relates Section 5 of the Limitation Act showing\r\n‘sufficient cause’ is the only criterion for condoning delay.\r\n‘Sufficient Cause’ is the cause for which a party could not\r\nbe blamed. We have already taken note of the legal bar\r\nfor initiation of proceedings against an industrial company\r\nby virtue of Section 22 (1), SICA and obviously, when a\r\nparty was thus legally disabled from resorting to legal <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">proceeding for recovering the outstanding dues without\r\nthe permission of BIFR and even on application\r\npermission therefor was not given the period of\r\nsuspension of legal proceedings is excludable in\r\ncomputing the period of limitation for the enforcement of\r\nsuch right in terms of Section 22(5), SICA. In the\r\nabsence of provisions for exclusion of such period in\r\nrespect of an application under Section 9, IBC, despite the\r\ncombined reading of Section 238A, IBC and the provisions\r\nunder the Limitation Act what is legally available to such\r\na party is to assign the same as a sufficient cause for\r\ncondoning the delay under Section 5 of the Limitation Act.\r\nIn such eventuality, in accordance with the factual\r\nposition obtained in any particular case viz., the period of\r\ndelay and the period covered by suspension of right\r\nunder Section 22 (1), SICA etc., the question of\r\ncondonation of delay has to be considered lest it will\r\nresult in injustice as the party was statutorily prevented\r\nfrom initiating action against the industrial company\r\nconcerned. The first question formulated hereinbefore is\r\naccordingly answered.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. In the case on hand, indubitably, the question\r\nwhether the delay occurred in the matter of filing of\r\napplication under Section 9, IBC is condonable or not, was\r\nnot considered. A bare perusal of the impugned order\r\nwould reveal that after taking into account the date of\r\ndefault and the date of filing of the application under\r\nSection 9, IBC the NCLAT held it as time barred. When\r\nonce it is so found we would have remanded the matter\r\nfor consideration of the question of limitation afresh, but\r\nfor the fact that the application under Section 9, IBC was\r\ndismissed assigning reason of existence of ‘pre-existing\r\ndispute’ as well.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>38. In this context the meaning of the word\r\n“reconciliation” is to be looked into. Going by Black’s\r\nLaw Dictionary, 10th Edition, the apt meaning suitable to\r\nthe situation in relation to accounting, reads thus: “an\r\nadjustment of amounts so that they agree, especially by\r\nallowing for outstanding items”. It is submitted by the\r\nlearned counsel for the respondent that such a\r\nreconciliation had not taken place and also that\r\nindisputably, DRS was not formulated and approved. The\r\naforesaid facts revealed from Annexure 40 together with\r\nthe stand taken by the respondent in the letter dated\r\n04.01.2013 (Annexure 36) would reveal the existence of a\r\npre-existing dispute between the parties. In the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contextual situation it is only apposite to be remindful of\r\nthe observation in Mobilox Innovations (P) Ltd. (supra)\r\nthat in doing the act of separating the grain from chaff\r\nthe Court need not to be satisfied that the defence is\r\nlikely to succeed. It is enough that a dispute exists\r\nbetween the parties and in other words, what is to be\r\nseen is whether there was a plausible contention\r\nrequiring investigation for the purpose of adjudication.\r\nTaking note of the nature of the dispute of the respondent\r\nas referred hereinbefore in respect of the claim made by\r\nthe appellant, we do not find any reason to disagree with\r\nthe concurrent findings of the Tribunals that there existed\r\na ‘pre-existing dispute’ between the parties before the\r\nreceipt of demand notice under Section 8, IBC. In other\r\nwords, the dismissal of the application under Section 9,\r\nIBC on the ground of ‘pre-existing dispute’ cannot be held\r\nto be patently illegal or perverse. We also do not find any\r\nreason, in the facts and circumstances, to hold that the\r\ncase set up by the respondent was a patently feeble legal\r\nargument. At any rate, we are not inclined to brush aside\r\nthe case of the respondent as spurious. We may hasten </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to add here that we shall not be understood to have held\r\nthat the dispute set by the respondent regarding the dues\r\nis ultimately to be upheld. Certainly, when the\r\nexpression ‘pre-existing dispute’ is used it will only\r\nindicate the existence of a dispute prior to the receipt of a\r\ndemand notice under Section 8, IBC, and the correctness\r\nor its truthfulness is a matter of evidence. In short, the\r\nrespondent has succeeded in raising a dispute\r\ndescribable as ‘pre-existing dispute’. In that view of the\r\nmatter once we find that the Tribunals have rightfully\r\nheld that there existed a ‘pre-existing dispute’ between\r\nthe parties there cannot be an order of remand of the\r\nmatter to the Tribunal for reconsideration of Section 9\r\napplication under IBC.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">39. In the contextual situation, it is also relevant to refer\r\nto the fact, rightly taken note of by the NCLT, that the\r\nrespondent herein had filed a Commercial Suit No.92 of\r\n2017 on 28.04.2017 before the Commercial Court in\r\nAhmedabad, claiming damages for the loss suffered by it\r\ndue to discontinuation of gas supply. True that on\r\n12.07.2018, the said Commercial Civil Suit was dismissed </span><span style=\"font-size: 12pt;\">by the Commercial Court at Ahmedabad on the ground of\r\nbeing barred by limitation. Annexure-B would reveal that\r\nagainst the judgment of dismissal in the said suit, the\r\nrespondent herein had filed First Appeal No. 3841 of 2018\r\nbefore the High Court of Gujarat at Ahmedabad. It was\r\ndisposed of on 11.08.2021, taking into account the joint\r\nsubmission that parties be permitted to settle dispute\r\nthrough arbitration process. In this context it is also to be\r\nnoted that the notice of arbitration dated 29.11.2019 has\r\nbeen issued by the appellant itself. Recording the\r\nsubmission, the appeal was permitted to be withdrawn\r\nleaving the parties to proceed with arbitral process. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In this context, it is also relevant to note that Gas\r\nSupply Agreement (GAS) which is an agreement entered\r\ninto between the appellant and the respondent dated\r\n30.05.2008 in regard to the supply of natural gas,\r\ncontains an arbitration clause viz., clause No.17. When\r\nthe agreement entered into between the parties carries\r\nan arbitration clause and when the parties mutually\r\nconsented and sought to proceed with arbitration before\r\nthe High Court and further, when the arbitration\r\nproceedings are pending, we are of the view that the\r\nparties shall be left with the liberty to raise all contentions </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">before the arbitrator, except the legal questions\r\ndiscussed and decided in this judgment.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n40. Subject to the above, this Appeal stands dismissed.\r\nAll the pending application (s), stand disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4abd29ec070e6d85e53c5d3c707ba4dd.jpeg', '19c0e81e2bce6c19b43371dbd6990e6a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-06', 1, '', '', '2023-01-05 15:28:16', '2023-01-06 07:00:28'),
(2538, 'YwrbFTP6NvSqSXUMmbM8cNcMi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Real Estate (Regulation and Development) Act does not apply to completed projects or to which completion certificate is issued and hence the Authority has no power to deal with complaints in respect of such projects. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Provident Housing Limited Vs Karnataka Real Estate Regulatory Authority and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 18448 of 2021 decided on 2 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Brief facts that lead the petitioner to this Court in the\r\nsubject petition, as borne out from the pleadings, are as follows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n The petitioner is a Company incorporated under the\r\nCompanies Act, 1956 and is engaged in the business of real estate\r\ndevelopment. The petitioner advertises a project i.e., apartment <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">complex in the name and style of “Provident Sunworth” in Sy.Nos.1\r\nto 26 of Venkatapura Village, Kengeri Hobli, Bangalore. The 2nd\r\nrespondent registers his interest by an application pursuant to the\r\nadvertisement requesting the petitioner to allot an apartment in the\r\nproject. On consideration of the application, the petitioner is\r\nallotted a flat bearing No.SUN-II-5G-506 on the fifth floor to the 2nd\r\nrespondent by way of execution of an agreement to sell.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Long after receipt of the said amount, the 2nd respondent\r\nknocks at the doors of the 1st respondent/Authority by registering a\r\ncomplaint seeking refund of an amount of Rs.6,84,494/- along with\r\ninterest. On receipt of the notice, the petitioner appears to have\r\nfiled its objections with regard to maintainability of the complaint\r\nbefore the 1st respondent and its entertainment by the Authority.\r\nNotwithstanding the objections with regard to maintainability, the\r\nAuthority passes the impugned order, on the complaint so made by\r\nthe 2nd respondent, on 30-09-2020 directing refund of\r\nRs.6,84,494/- to the 2nd respondent within 60 days from\r\n30-09-2020, failing which, it would carry interest at 2% per month.\r\nIt is this order that drives the petitioner to this Court in the subject\r\npetition. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. I have given my anxious consideration to the submissions\r\nmade by the respective learned counsel and have perused the\r\nmaterial on record. In furtherance whereof, the issues that fall for\r\nmy consideration are:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“(i) Whether the complaint of the 2nd respondent\r\nbefore the Authority was maintainable?\r\n</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>(ii) Whether the order passed by the Authority is\r\ntenable in law?” <br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Issue No.1<i>:\r\n(i) Whether the complaint of the 2nd respondent\r\nbefore the Authority was maintainable?</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. Certain events are a matter of record. On 10-09-2014 an\r\nagreement between the petitioner and the 2nd respondent which\r\nwas an agreement of sale and construction agreement are signed.\r\nPrior to the said construction agreement, the BDA which was the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Competent Authority had issued a commencement certificate for\r\ncommencement of the project. The project was completed to\r\ncertain extent and a partial completion certificate was issued by the\r\nBDA on 18-11-2015 accepting the application of the petitioner\r\ndated 21-10-2015. The partial occupancy certificate is appended to\r\nthe petition. Another partial occupancy certificate is issued on\r\n27-04-2017. The 2nd respondent with whom agreement of sale was\r\nsigned between the parties seeks to wriggle out of the project or\r\nthe agreement, communicates to the petitioner that he is intending\r\nto cancel the agreement on some information that he received that\r\nthe project is not on a legally acquired land.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">14. The petitioner did not make a hue and cry over it; did\r\nrefund an amount of Rs.17,85,212/- on 04-12-2017. This amount\r\nhaving been realized is also not in dispute. Therefore the contract\r\nbetween the parties had concluded on 04-12-2017 without the 2nd\r\nrespondent making any grievance with regard to the refund. But on\r\n14-02-2019, the 2nd respondent registers a complaint before the\r\nAuthority, invoking Section 31 of the Act claiming that he is\r\naggrieved that the entire refund is not received from the hands of</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the petitioner and an amount of Rs.6,84,494/- was still due. The\r\npetitioner filed its detailed objections before the Authority\r\ncontending that the complaint itself was not maintainable as the\r\nproject was not an ongoing project. Declining to accept the same,\r\nthe Authority passes the order dated 30-09-2020 directing refund\r\nof the amount claimed along with interest under Section 18 of the\r\nAct.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>As observed hereinabove, against the said order in the normal\r\ncircumstance an appeal would be maintainable. The issue here is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">whether the complaint before the Authority was itself maintainable\r\nor otherwise. If the complaint before the Authority was\r\nmaintainable, the impugned order becomes appealable under subsection (5) of Section 43. If the Authority had no jurisdiction to\r\npass the order, the writ petition in the form that is presented\r\nbecomes maintainable. In view of the preceding analysis, more\r\nparticularly, with regard to the explanation of ‘ongoing project’\r\nunder the Rules which exempts application of the Act and the Rules\r\nsince the project had commenced and partial occupancy certificate\r\nwas issued prior to coming into force of the Act, the complaint itself\r\nwas not maintainable before the Authority. Notwithstanding such\r\nexemption, the Adjudicating Authority appears to have been\r\nswayed by the grievance vented out by the 2nd respondent in\r\nentertaining the complaint.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. The issuance of occupancy certificate prior to the Act\r\ncoming into force, albeit partially, is not in dispute. Therefore, the\r\nproject loses its character, as an ongoing project in terms of Rule 4\r\nof the Rules, as the explanation in the Rule exempts such an\r\nongoing project. Therefore, the determination by the Authority was </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">without jurisdiction and if it is an act without jurisdiction, it is non\r\nest in the eye of law, and if it is non est in the eye of law, it is\r\nrendered unsustainable and requires to be obliterated. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Apex Court at paragraph-40 considers what is an ongoing\r\nproject and issuance of completion certificate interpreting the Act\r\nand the Rules made by the State of Uttar Pradesh. At paragraph-51\r\nthe Apex Court holds that the statute is not retrospective merely\r\nbecause it affects existing rights or its retrospection because of a\r\npart of the requisites for its action would destroy or impair the\r\nvested rights. At paragraph 54 the Apex Court holds that its action\r\nis retroactive in character and can safely be observed that the\r\nprojects which are already completed or to which completion\r\ncertificate has been granted are not under the fold of the Act and at\r\nthe same time the Apex Court holds that it will apply after getting\r\nthe ongoing projects and future projects registered under the Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">In the case at hand, it is Rule 4 which exempts the projects like the\r\npetitioners.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. In the light of the judgment of the Apex Court and\r\nundisputed facts as narrated hereinabove, the order passed by the\r\nAuthority is without jurisdiction and a nullity in law. The first issue\r\nbeing held in favour of the petitioner with regard to maintainability\r\nof the complaint itself before the Authority, no other issue need be\r\nconsidered with regard to tenability of the order passed by the\r\nAuthority. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n(i) The Writ Petition is allowed.</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c4f082163e086d9a85935b7714f87f4f.jpeg', 'b5480945b3ada80d9e6fcf593b626f3b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-06', 1, '', '', '2023-01-05 15:38:34', '2023-01-06 12:26:09'),
(2539, 'yu8uucwr6MHhuQKzE98kvxikz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Demonetization. The Govt notification does not suffer from any flaws in the decision-making process and satisfies the proportionality test. Supreme Court. ', '<p><b>VIVEK NARAYAN SHARMA vs UNION OF INDIA<br>WRIT PETITION (CIVIL) NO.906 OF 2016 decided on 2 January 2023. Justice B.V. Nagarathna.</b></p><p><b>IX. ANSWERS TO THE QUESTIONS\r\n<br></b></p><p><b>304. We accordingly answer the Reference as under:\r\n</b></p><p><b>(i) The power available to the Central Government under\r\nsub-section (2) of Section 26 of the RBI Act cannot be\r\nrestricted to mean that it can be exercised only for ‘one’\r\nor ‘some’ series of bank notes and not for ‘all’ series of bank notes. The power can be exercised for all series of\r\nbank notes. Merely because on two earlier occasions,\r\nthe demonetization exercise was by plenary legislation,\r\nit cannot be held that such a power would not be\r\navailable to the Central Government under sub-section\r\n(2) of Section 26 of the RBI Act;</b></p><p><b>\r\n(ii) Sub-section (2) of Section 26 of the RBI Act does not\r\nprovide for excessive delegation inasmuch as there is an\r\ninbuilt safeguard that such a power has to be exercised\r\non the recommendation of the Central Board. As such,\r\nsub-section (2) of Section 26 of the RBI Act is not liable\r\nto be struck down on the said ground;</b></p><p><b>(iii) The impugned Notification dated 8th November 2016\r\ndoes not suffer from any flaws in the decision-making\r\nprocess;\r\n</b></p><p><b>(iv) The impugned Notification dated 8th November 2016\r\nsatisfies the test of proportionality and, as such, cannot\r\nbe struck down on the said ground;</b></p><p><b>(v) The period provided for exchange of notes vide the\r\nimpugned Notification dated 8th November 2016 cannot\r\nbe said to unreasonable; and\r\n</b></p><p><b>(vi) The RBI does not possess independent power under\r\nsub-section (2) of Section 4 of the 2017 Act in isolation\r\nof the provisions of Sections 3 and 4(1) thereof to accept\r\nthe demonetized notes beyond the period specified in\r\nnotifications issued under sub-section (1) of Section 4 of\r\nthe 2017 Act.</b></p><p><b>S. ABDUL NAZEER]\r\n…….........................J.\r\n[B.R. GAVAI]\r\n…….........................J.\r\n[A.S. BOPANNA]\r\n\\\r\n…..…….........................J.\r\n[V. RAMASUBRAMANIAN]\r\nNEW DELHI;\r\nJANUARY 02, 2023</b><br></p>', 'bf791dbc898333c3a9911648a443b304.jpeg', '66fb89cbf2926148dbdb678dc803a34f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-09', 1, '', '', '2023-01-05 17:38:38', '2023-01-09 06:32:57'),
(2540, 'yEc9vIUGYwu0S5hGQXbNiNcMS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Government has no power to prescribe fee structure in private unaided Schools. Karnataka High Court strikes down offending provisions of the Karnataka Education Act as unconstitutional.', '<p><b>Managements of Independent CBSE Schools Association Karnataka and others vs The State of Karnataka and another.  <br>Writ Petition 6185 of 2019 decided on 5 January 2023<br>Justice E.S. Indiresh<br></b></p><p><b>The Karnataka High Court has struck down few provisions of the Karnataka Education Act today. The provisions which are struck down are;</b></p><p><b>Section 2 (11A) under which District Education Regulatory Authority is created to monitor fee charged by the Educational Institutions. The Section reads <i>2(11A) \"District Education Regulatory Authority\" means an authority\r\nconstituted under the Chairmanship of the Deputy Commissioner of a\r\ndistrict with composition, role, functions and powers as may be prescribed\r\nby rules.</i><br></b></p><p><b>Section 5A which imposed measures for the safety and security of the children. The Section reads  <i>5A. Safety and security of students.- Every educational institution and\r\nan employee of such educational institutions shall take such measures to\r\nensure safety and security of students including protection from sexual\r\noffences, in the manner as may be prescribed.</i><br></b></p><p><b>Section 48 which read  <i>48. Fees.- (1) Subject to any other law for the time being in force, no\r\nGoverning Council of a recognised educational institution shall levy or\r\ncollect any fees or charges or donations or other payments, by whatever\r\nname called, save such and at such rate and in such manner as may be\r\nprescribed.\r\n<br> (2) The amounts levied or collected under sub-section (1) shall be\r\nutilised by the educational institution in accordance with such rules as may\r\nbe prescribed.</i></b></p><p><b>Section 112A which made contravention of Section 5A as penal in nature. The Section reads. - <i>112A. Penalty for contravention of section 5A.- <br>(1) Any employee or\r\nmember of the management of an educational institution who contravenes\r\nsection 5A shall on conviction, be punished with imprisonment for a\r\nminimum term of six months and with a fine which may extend to one lakh\r\nrupees.\r\n<br>(2) Whenever any educational institution is found to be in\r\ncontravention of section 5A in an enquiry conducted, after giving an\r\nopportunity of being heard, by the District Education Regulatory Authority, it\r\nshall impose a penalty which may extend to ten lakh rupees.\r\n<br>(3) The District Education Regulatory Authority after such enquiry\r\nhas found that any educational institution has contravened the provisions of\r\nsection 5A shall also recommend to the competent authority or concerned\r\nauthority for withdrawal of recognition or affiliation to such institution.</i></b></p><p><b>The High Court has also held that that Rules which barred the private unaided Schools from collecting term fees and Special Development Fees under Rule 10(3)(a)(i) and Rule 10(3)(c) of the Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula etc) Rules, 1995 are not applicable to private unaided Schools. </b></p><p><b>The Court also also held that the entire Rule which dealt with \"Fee in unaided private educational institutions\" i.e. Rule 4 and Rule 7 which prescribed fine for violation of the Rules as not applicable to private unaided Schools. </b></p><p> \r\n</p>', 'fb57af96f3d5698fd31becf80230952e.jpg', 'cac41c2760aafbd3ea2cc6613d962013.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-05', 1, '', '', '2023-01-05 17:57:37', '2023-03-13 20:13:40'),
(2541, 'W18eKIrt54InIx3z9nT3Lki06', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Local Authorities (Prohibition of Defection) Act. Karnataka High Court issues guidelines regulating service of whip.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Savita and others Vs The District President, BJP and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 104407 of 2021 decided on 16 December 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice N.S. Sanjay Gowda.  </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. The President of the State BJP party, by his communication dated 01.11.2020, had authorised the District President of the BJP party to decide the manner in which the members of the BJP were supposed to conduct themselves and also decide in whose favour the vote was to be cast for the elections which was scheduled to be conducted on 09.11.2020 for the post of President and Vice-President.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">4. In this meeting, it was resolved therein that the 3rd respondent was to be the official contestant of the BJP for the post of President and the 2nd respondent was to be the official contestant of the BJP for the post of Vice-President.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">10. As the petitioners had cast their votes in contravention of the direction, a complaint was lodged for disqualifying the petitioners under the provisions of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987 (for short, the Act).</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">16. The Deputy Commissioner then proceeded to hold that the President was authorized to issue the whip and since the whip was to the knowledge of the petitioners and yet they had voted contrary to the whip, they had incurred the disqualification as prescribed under the Act.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">17. The petitioners’ being aggrieved by this order of disqualification, are before this Court by way of this writ petition. <br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">31. In the instant case, the provisions of Section 3(b) would be relevant and since the case relates to voting by a Councilor contrary to a direction issued, only with reference to this factual aspect, the matter is analyzed.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">32. A plain reading of Section 3(b) would indicate that if a councilor belonging to any political party (or by a person authorised by the party) votes contrary to any direction issued by the political party to which he belongs without obtaining the prior permission from the such party, he attracts the distinct possibility of being disqualified to continue as a Councilor.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">51. It is to be stated here that when service of notice, by way of affixture is effected by the person interested in the service of notice, it creates a suspicion as to whether there was actual service of the notice. Since the consequence of acting contrary to the direction entails serious consequence such a </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">disqualification, it is essential that an acceptable mode of service be adopted for establishing that a person belonging to a political party was suffered a disqualification.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">52. The State Government could have prescribed a mode of service of notice by framing rules in exercise of its power conferred under Section 9 of the Act, 1987. However, the Government despite the lapse of 35 years since enactment of the Act, 1987 is yet to frame rules thereby creating a grey area in the matter of effecting service of a direction issued by the political party. This grey area is prone to misuse by both the political party as well as by the members of the political party and both of them are obviously taking advantage of this grey area to contend that there has been either a proper service or there has been no service as the case may be to effectively defeat the provisions of the Act, 1987.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">53. In the instant case, since there is no clear proof that the petitioners were aware of the affixture and since the Deputy Commissioner has himself noticed that (a) the 3rd petitioner had stated that the notice affixed was on the door of a house in which she was not residing but her mother-in-law was residing (b) the 1st petitioner had denied that the door on</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which the notice was affixed was not the door of her house and (c) the 2nd petitioner had denied the affixture on the door of her house, it would be unsafe to act upon the alleged service to hold that the petitioners were aware of the direction.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">55. In a given case, there could be a candidate officially declared by the political party, without there being a direction to vote for the official candidate. Unless there is a specific direction issued to all its members cast the vote only in favour of the official candidate, the provisions of the 1987 Act would not stand attracted.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">59. Since it is not established that the direction to vote in favour of respondent Nos.2 and 3 has not been established <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by the political party, the decision rendered by the Deputy commissioner to the effect that petitioners had acted contrary to the direction issued by the political party and they have thereby incurred a disqualification cannot be sustained and same is quashed.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">Accordingly, writ petition is allowed.</span></span></p>', 'a563a1fadd48abb5751d049a879e3025.JPG', '7545a511b1388bc5fc272f718e5b0688.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-07', 1, '', '', '2023-01-06 12:49:06', '2023-01-07 03:22:10');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2542, 'JngRugOiG2jrZsdEMhdMsodVv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When the proceedings in the predicate offence under the Indian Penal Code are stayed, proceedings of attachment under the Prevention of Money Laundering Act cannot continue. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>C. Uma Reddy and others Vs Directorate of Enforcement Government of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 19337 of 2022 decided on 14 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioners call in question a provisional attachment order\r\nin order No.5/2022 dated 01.08.2022, whereby, the movable and\r\nimmovable properties of the petitioners are provisionally attached\r\nin exercise of powers conferred under Section 5(1) of the PMLA.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 2. Shorn of unnecessary details, facts in brief, that leads the\r\npetitioners to this Court, are as follows:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n The 1st petitioner runs certain businesses and manages supply\r\nand marketing of flowers purchased from farmers and circulates it\r\ninto retail market through her establishment in the name and style\r\nof ‘M/s Keona’. The other business of the 1st petitioner concerns\r\ntelecom infrastructure, through a company established for the\r\npurpose by name Kavveri Telecom Infrastructure Limited\r\n(hereinafter referred to as ‘the Company’ for short). A loan was\r\navailed by the Company at the hands of Dena Bank, J.C.Road\r\nBranch. Alleging that the loan had been used for purposes other\r\nthan for which it had been taken, certain proceedings come to be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">initiated against the petitioners and several others by the Central\r\nBureau of Investigation on 27.07.2017 in R.C.No.10 of 2017,\r\nagainst the Directors of the Company and arraigning some of the\r\npetitioners as accused in the said case. Pending investigation, the\r\nAssistant Director of Enforcement Directorate communicates to the\r\nBank in which the petitioners had their accounts to be frozen on\r\naccount of allegations against the 1st petitioner, in particular.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">9. The afore-narrated facts of trail of money that comes into\r\nthe accounts of the petitioners and its spending for the purposes\r\nother than for which it was taken from Dena Bank, need not, at this </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">juncture, be gone into. The questions that arise for consideration\r\nqua the contentions in the case at hand are:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n(i) Whether the Enforcement Directorate had the\r\nright to attach the properties of the\r\npetitioners? and\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(ii) Whether the proceedings under PMLA in ECIR\r\nNo.ECIR/BGZO/04/2019/AD-AKV/1541\r\nshould be permitted to be continued in the\r\nteeth of the interim order of stay of further\r\nproceedings granted in the offences relating\r\nto IPC i.e., predicate offences?</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Point No.i : Whether the Enforcement Directorate\r\nhad the right to attach the properties of the petitioners?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">12. The other provision in sub-section (5) of Section 5 of the\r\nPMLA deals with procedure for such attachment and what would\r\nbecome after the attachment. The petitioners challenging the order\r\nof the Special Court taking cognizance of offences in C.C.No.11060\r\nof 2020 approached this Court in Writ Petition No.14431 of 2020\r\nand Criminal Petition No.7949 of 2020. This Court has by its order\r\ndated 10-12-2020, stalled further proceedings and the interim\r\norder is in subsistence even as on date. Therefore, the offences\r\nalleged against the petitioners which forms the foundation of the\r\noffences registered against them in the ECIR have been stayed,\r\nwhich would mean that they have been eclipsed. After granting\r\nstay of the said order, the proceedings under the PMLA did not\r\nstop. The 3rd respondent/Competent Authority passes an order on\r\n01.08.2022, issuing a provisional attachment order in Provisional </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Order No.5 of 2022 under sub-Section (1) of Section 5 of the PMLA.\r\nTo arrive at passing of the order, statements of all the petitioners\r\nhave been recorded under Section 50 of the PMLA and several\r\ndocuments are scrutinized. A detailed order is passed in terms of\r\nSection 5 of the PMLA and arriving at a conclusion albeit prima facie\r\nthat he has reason to believe that proceeds of crime are the result\r\nof properties standing in the names of the petitioners either\r\nmovable or immovable.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13. It is this attachment order that drives the petitioners to\r\nthis Court. Therefore, the power under Section 5 being executed\r\nand the considered finding that he has reason to believe to pass the\r\nsaid order cannot be found fault with. It is in tune with Section 5 of\r\nthe PMLA. Therefore, the first point that has arisen for\r\nconsideration is answered against the petitioners, holding that the\r\n3\r\nrd respondent has the power to attach the properties. What is\r\nrequired is ‘there should be reasons to believe’. The order passed\r\ndoes reflect application of mind and records reasons to believe that\r\nthey were proceeds of crime.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. Point No.ii: Whether the impugned proceedings\r\nunder PMLA in ECIR No.ECIR/BGZO/04/2019/AD-AKV/1541\r\nshould be permitted to be continued in the teeth of the\r\ninterim order of stay of further proceedings granted in the\r\noffences relating to IPC i.e., the predicate offences?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">18. In the light of the judgments rendered by the Apex Court\r\nin the case of VIJAY MADANLAL CHOUDARY and that of the\r\nDivision Bench of the High Court of Madras interpreting judgment of\r\nthe Apex Court in the case of VIJAY MADANLAL CHOUDARY, I\r\ndeem it appropriate to stall all further action in the impugned\r\nproceedings till conclusion of Writ Petition No.14431 of 2020 and\r\nCriminal Petition No.7949 of 2020. If the proceedings in the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">predicate offence are stayed, the impugned proceedings of\r\nattachment under the ECIR cannot be permitted to continue. If the\r\nproceedings move on in the predicate offence, the offence under\r\nthe ECIR should also be permitted to continue, failing which, it\r\nwould defeat the proceedings under the PMLA or the IPC and would\r\nfall foul of the judgment of the Apex Court. Therefore, in the event\r\nthe proceedings in C.C.No.11606 of 2020 are permitted to continue,\r\nthe interjection of the proceedings in ECIR in this case would stand\r\nautomatically vacated and the proceedings would be permitted to\r\nbe continued. Wherefore, there cannot be any of the order of\r\nattachment as is prayed. These proceedings will have to be kept in\r\nthe oblivion, awaiting the result of the proceedings in Writ Petition\r\nNo.14431 of 2020 and Criminal Petition No.7949 of 2020.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">19. Insofar as the judgments relied on by the learned counsel\r\nappearing for the Enforcement Directorate particularly with\r\nreference to the case in J.SEKAR v. UNION OF INDIA , rendered\r\nby the High Court of Delhi holding that the proceedings under the\r\nPMLA and the proceedings under the IPC or predicate offences are</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">completely different and they can go hand in hand is concerned,\r\nthere can be no qualm about the principles so laid down at the\r\nrelevant point in time. With the judgment of the Apex Court in the\r\ncase of VIJAY MADANLAL CHOUDARY (supra), the judgment in\r\nJ.SEKAR would not become applicable to the facts of the case. The\r\nother judgments relied on would also follow suit in the light of the\r\njudgment of the Apex Court rendered in the case of VIJAY\r\nMADANLAL CHOUDARY (supra).</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> (i) The Writ Petition is allowed in part. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b627330400f599ca964115d4f4001e0d.jpeg', '02468141ed58bda85a8ed3153cdf5190.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-10', 1, '', '', '2023-01-06 13:15:37', '2023-01-10 08:47:39'),
(2543, 'hgLBAfZKJQG2NfxiRFSbQl8su', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SARFAESI Act.50% deposit in appeal under Section 18 includes interest also. Further, when borrower challenges auction, he cannot claim adjustment of the amount realised by sale of the secured properties and deposited by the auction purchaser.Supreme Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/s Sidha Neelkanth Paper Industries Private Limited and another Vs Prudent ARC Limited and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8969 of 2022 decided on 5 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Civil Appeal Nos. 8972, 8973 and 8974 of 2022 have been\r\npreferred against the common impugned judgment and order dated\r\n12.04.2022 passed by the High Court of Madhya Pradesh, Bench at\r\nIndore in respective Writ Petition Nos. 5494/2021, 5470/2021 and\r\n5478/2021, by which the High Court has dismissed the said writ petitions\r\npreferred by the original writ petitioners – auction purchasers and has\r\nconfirmed the orders passed by the Debt Recovery Appellate Tribunal,\r\nAllahabad (for short, ‘DRAT’), by which the DRAT while entertaining the\r\nappeals under Section 18 of the SARFAESI Act held that the borrower is\r\nnot liable to deposit 50% of the amount of debt as the secured property\r\nhas been sold and the amount is realised as the same was paid by the\r\nauction purchasers and is to be appropriated towards the amount liable\r\nto be deposited as pre-deposit under Section 18 of the SARFAESI Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. That the appellant in Civil Appeal No. 8969/2022 – Sidha\r\nNeelkanth Paper Industries Private Limited (hereinafter referred to as the\r\n‘principal borrower’) approached the Andhra Bank for sanction of credit <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">facility and in the year 2008, it had approached Standard Chartered\r\nBank for taking over the debt taken by it. In the year 2010, the Andhra\r\nBank sanctioned open cash credit limit for a sum of Rs. 15.5 crores in\r\nfavour of the principal borrower. Immovable properties were mortgaged\r\nby the guarantors and by the borrower to secure the said cash credit\r\nfacility. After taking over the existing cash credit facility, a further ad-hoc\r\nopen cash credit to the tune of Rs. 3 crores, due to the Standard\r\nChartered Bank, was cleared by the Andhra Bank</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4.6 Feeling aggrieved and dissatisfied with the order passed by the\r\nDRAT allowing waiver of the statutory pre-deposit on the aforesaid\r\nground, the secured creditor/assignee filed the subject writ petition\r\nbefore the High Court being Writ Petition No. 6060/2020. By the\r\nimpugned judgment and order, the High Court has partly allowed the\r\nsaid writ petition preferred by the secured creditor/assignee by directing\r\nthat the borrower is required to deposit 50% of the remaining 4.1 crores\r\nbeing debt due (after deducting/adjusting Rs. 12.5 crores\r\nrealised/recovered by selling the mortgaged property). The High Court\r\nhas also observed that it shall be open to DRAT to reduce the said predeposit amount to 25%, after recording reasons in writing for the said\r\nreduction. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. The short question which is posed for the consideration of this\r\nCourt is, “whether, while calculating the amount to be deposited as predeposit under Section 18 of the SARFAESI Act, 50% of which amount\r\nthe borrower is required to deposit as pre-deposit and whether while\r\ncalculating the amount of “debt due”, the amount deposited by the\r\nauction purchaser on purchase of the secured assets is required to be\r\nadjusted and/or appropriated towards the amount of pre-deposit to be\r\ndeposited by the borrower under Section 18 of the SARFAESI Act?”\r\nAnother question would be, “whether the “debt due” under Section 18 of\r\nthe SARFAESI Act would include the liability + interest?”</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. As observed hereinabove and as per the second proviso to\r\nSection 18 of the SARFAESI Act, it is the “borrower” who has preferred\r\nan appeal before the Appellate Tribunal and the “borrower” who shall\r\nhave to deposit 50% of the amount of “debt due” from him. If the words\r\nused in the second proviso to Section 18 of the SARFAESI Act are\r\n“borrower has to deposit”, it is not appreciable how the amount\r\ndeposited by the auction purchaser on purchase of secured assets can\r\nbe adjusted and/or appropriated towards the amount of pre-deposit, to\r\nbe deposited by the borrower. It is the “borrower” who has to deposit\r\nthe 50% of the amount of “debt due” from him. At the same time, if the\r\nborrower wants to appropriate and/or adjust the amount realised from\r\nsale of the secured assets deposited by the auction purchaser, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">borrower has to accept the auction sale. In other words, the borrower\r\ncan take the benefit of the amount received by the creditor in an auction\r\nsale only if he unequivocally accepts the sale. In a case where the\r\nborrower also challenges the auction sale and does not accept the same\r\nand also challenges the steps taken under Section 13(2)/13(4) of the\r\nSARFAESI Act with respect to secured assets, the borrower has to\r\ndeposit 50% of the amount claimed by the secured creditor along with\r\ninterest as per section 2(g) of the Act 1993 and as per section 2(g),\r\n“debt” means any liability inclusive of interest which is claimed as due\r\nfrom any person.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16. In view of the above and for the reasons stated above, in the\r\npresent case, the respective High Courts have seriously erred in\r\ndirecting to adjust/appropriate the amount realised by auction sale of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">secured properties/deposited by the auction purchasers while\r\nconsidering the 50% of the amount as pre-deposit to be deposited by the\r\nborrower, while preferring an appeal before the DRAT. Even the High\r\nCourt of Delhi has erred in excluding the amount payable towards\r\ninterest while considering the “debt due”. As per Section 2(g) of the Act\r\n1993, “debt” means liability inclusive of interest as claimed by the\r\nbank/financial institution.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>17. In view of the above and for the reasons stated above, the\r\nrespective appeals preferred by the financial institution/assignee and\r\nauction purchasers being civil Appeal Nos. 8970, 8972, 8973 and 8974\r\nof 2022 are hereby allowed. The appeal preferred by the borrower\r\nagainst the judgment and order passed by the Delhi High Court being\r\nCivil Appeal No. 8969/2022 deserves to be dismissed and is accordingly\r\ndismissed. It is observed and held that the borrower has to deposit 50%\r\nof the amount of “debt due” as claimed by the bank/financial\r\ninstitution/assignee along with interest as claimed in the notice under\r\nSection 13(2) of the SARFAESI Act and the borrower is not entitled to\r\nclaim adjustment/appropriation of the amount realised by selling the\r\nsecured properties and deposited by the auction purchaser when the\r\nauction sale is also under challenge.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. Civil Appeal Nos. 8970, 8972, 8973 & 8974 of 2022 are\r\naccordingly allowed except Civil Appeal No. 8969 of 2022.\r\nConsequently, Civil Appeal No. 8969 of 2022 stands dismissed, as\r\nobserved hereinabove. However, in the facts and circumstances of the\r\ncase, there shall be no order as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '374d63a69c17a648808f387934dd7050.jpeg', '531348a247708a60d1383ae69d6c023d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-09', 1, '', '', '2023-01-06 13:48:35', '2023-01-09 08:27:57'),
(2544, 'sHQRMa50opT6gO5cqtNehdooo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Recovery proceedings/ recoveries under the MSMED Act do not prevail over the recoveries made / recovery proceedings under provisions of the SARFAESI Act. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kotak Mahindra Bank Limited Vs Girnar Corrugators Pvt. Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6662 of 2022 decided on 5 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice Krishna Murari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved by and dissatisfied with the impugned\r\njudgment and order passed by the Division Bench of the High\r\nCourt of Madhya Pradesh at Indore dated 11.08.2017 in Writ\r\nAppeal No. 248 of 2017, by which the Division Bench of the\r\nHigh Court has allowed the said appeal preferred by\r\nrespondent No.1 herein and has quashed and set aside the\r\njudgment and order passed by the learned Single Judge and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">has observed and held that Micro, Small and Medium\r\nEnterprises Development Act, 2006 (hereinafter referred to as\r\n\'MSMED Act\') will prevail over Securitisation and\r\nReconstruction of Financial Assets and Enforcement of\r\nSecurity Interest Act, 2002 (hereinafter referred to as\r\n\'SARFAESI Act\'), the secured creditor – Kotak Mahindra Bank\r\nLimited has preferred the present appeal.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The facts leading to the present appeal, in nut shell, are\r\nas under:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1.1 One Mission Vivacare (hereinafter referred to as \'debtor\')\r\nadvanced various credit facilities by the appellant bank –\r\nsecured creditor. In order to secure the various credit facilities,\r\nPlot Nos. 16 and 14, situated in SEZ Area of Dhar were\r\nmortgaged along with certain movable fixed assets. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1.2 On account of default in payment of loan / debt, the\r\nbank-initiated recovery proceedings in respect of the secured\r\nassets contemplated under Section 13(2) of the SARFAESI Act.\r\nThe bank – secured creditor filed an application before the\r\nDistrict Magistrate on 17.06.2014 under Section 14 of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">SARFAESI Act seeking assistance from taking possession of\r\nthe secured assets. By order dated 24.09.2014, the District\r\nMagistrate allowed the said application by directing the SDM,\r\nDistrict: Dhar to take vacant possession of the secured assets.\r\nHowever, no action was taken and therefore, the bank\r\nsubmitted applications to the District Magistrate and the SDM\r\ncomplaining non-compliance of the order to take possession of\r\nthe secured assets. Finally, SDM issued direction to the Naib\r\nTehsildar vide communication dated 07.11.2015 to comply the\r\norder of the District Magistrate and obtain the possession by\r\ntaking police assistance. Thereafter vide order dated\r\n21.03.2016, Naib Tehsildar refused to take possession and to\r\ncomply the order dated 24.09.2014 on the ground that one\r\nrecovery proceeding is pending for recovery of certain amounts\r\nfrom the secured assets and on the ground that the recovery\r\ncertificate issued in favour of respondent No.1 (original\r\nrespondent No.4 before the High Court) was already pending\r\nfor recovery of certain amounts from the aforesaid two secured\r\nassets. At this stage, it is required to be noted that the\r\nrecovery certificates were issued in favour of respondent No.1 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">pursuant to the award passed by the Facilitation Council on\r\n11.09.2014 which was in favour of respondent No.1 herein,\r\nwhich was under provisions of MSMED Act. The order passed\r\nby the Naib Tehsildar refusing to take possession of the\r\nsecured assets pursuant to the order passed by the District\r\nMagistrate dated 24.09.2014 was the subject matter of writ\r\npetition before the learned Single Judge of the High Court by\r\nway of Writ Petition No.2569 of 2016. While refusing to take\r\npossession of the secured assets pursuant to the order passed\r\nby the District Magistrate under Section 14 of the SARFAESI\r\nAct, Naib Tehsildar observed that MSMED Act being a special\r\nenactment enacted subsequent to SARFAESI Act would have\r\noverriding effect and therefore, MSMED Act would prevail over\r\nthe SARFAESI Act.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The short question which is posed for the consideration\r\nof this Court is whether the MSMED Act would prevail over the\r\nSARFAESI Act? The question is whether recovery\r\nproceedings / recoveries under the MSMED Act would prevail\r\nover the recoveries made / recovery proceedings under\r\nprovisions of the SARFAESI Act?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. As observed hereinabove, Sections 15 to 23 of the\r\nMSMED Act are providing a special mechanism for\r\nadjudication of the disputes and to adjudicate and resolve the\r\ndisputes between the supplier and buyer – micro or small\r\nenterprise. At the cost of repetition, it is observed that MSMED\r\nAct does not provide any priority over the debt dues of the\r\nsecured creditor akin to Section 26E of the SARFAESI Act. At\r\nthe most, the decree / order / award passed by the\r\nFacilitation Council shall be executed as such and the micro\r\nor small enterprise in whose favour the award or decree has\r\nbeen passed by the Facilitation Council shall be entitled to\r\nexecute the same like other debts / creditors. Therefore,\r\nconsidering the provisions of Sections 15 to 23 read with\r\nSection 24 of the MSMED Act and the provisions of the\r\nSARFAESI Act, as such, there is no repugnancy between two\r\nenactments viz. SARFAESI Act and MSMED Act. As such, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">there is no conflict between two schemes, i.e. MSMED Act and\r\nSARFAESI Act as far as the specific subject of \'priority\' is\r\nconcerned.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Even otherwise the Naib Tehsildar was not at all justified\r\nin not taking possession of the secured assets / properties as\r\nper order dated 24.09.2014 passed by the District Magistrate\r\nunder Section 14 of the SARFAESI Act. The order passed by\r\nthe Naib Tehsildar refusing to take possession of the secured\r\nassets / properties despite the order passed under Section 14\r\nof the SARFAESI Act on the ground that recovery certificates\r\nissued by respondent No.1 for recovery of the orders passed by\r\nthe Facilitation Council are pending, is wholly without\r\njurisdiction. While exercising power under Section 14 of the\r\nSARFAESI Act, even the District Magistrate has no jurisdiction\r\nand/or District Magistrate and/or even the Chief Metropolitan\r\nMagistrate has no jurisdiction to adjudicate the dispute <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">between secured creditor and debtor. Under Section 14 of the\r\nSARFAESI Act, the District Magistrate or the Chief\r\nMetropolitan Magistrate as the case may be is required to\r\nassist the secured creditor in getting the possession of the\r\nsecured assets. Under Section 14 of the SARFAESI Act, neither\r\nDistrict Magistrate nor Metropolitan Magistrate would have\r\nany jurisdiction to adjudicate and/or decide the dispute even\r\nbetween the secured creditor and the debtor. If any person is\r\naggrieved by the steps under Section 13(4) / order passed\r\nunder Section 14, then the aggrieved person has to approach\r\nthe Debts Recovery Tribunal by way of appeal / application\r\nunder Section 17 of the SARFAESI Act. Therefore, the order\r\npassed by the Naib Tehsildar refusing to take the possession\r\npursuant to the order passed by the District Magistrate under\r\nSection 14 of the SARFAESI Act was wholly without\r\njurisdiction and therefore also the same was liable to be set\r\naside.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. In view of the above and further reasons stated above,\r\nthe impugned judgment and order passed by the Division\r\nBench of the High Court is unsustainable and the same </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">deserves to be quashed and set aside. Consequently, the\r\npresent appeal is allowed. The impugned judgment and order\r\ndated 11.08.2017 passed by the Division Bench of the High\r\nCourt of Madhya Pradesh at Indore in Writ Appeal No. 268 of\r\n2017 is set aside and the judgment and order passed by the\r\nlearned Single Judge is hereby restored. It is observed and\r\nheld that so far as recoveries under the SARFAESI Act with\r\nrespect to the secured assets would prevail over the recoveries\r\nunder the MSMED Act to recover the amount under the award\r\n/ decree passed by the Facilitation Council. It is rightly\r\nobserved by the learned Single Judge that if respondent No.1\r\nis aggrieved by the order passed by the District Magistrate\r\nunder Section 14 of the SARFAESI Act, it will be open for him\r\nto initiate proceedings under Section 17 of the SARFAESI Act\r\nwhich be considered in accordance with law and on its merits\r\nand subject to the provisions of Section 17 and the provisions\r\nof the SARFAESI Act.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. The present appeal is accordingly allowed. No order as to\r\ncosts.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '31dd6f848c09d6409cf96b7d23ff43ea.jpeg', '86ea8660931ff681f7796abe5d2c503e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-07', 1, '', '', '2023-01-06 14:00:43', '2023-01-07 07:04:01'),
(2545, 'DRiFF4ELOPCsOOmhovGy5jU0W', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Committees under Article 194(3) of the Constitution are not vested with adjudicatory jurisdiction which belongs to judicature under the constitutional scheme. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Karnataka State Association of the Management of Nursing and Allied Health Science Institution Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Appeal 829 of 2022 decided on 6 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice Prasanna B. Varale and Justice Ashok S. Kinagi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Brief facts leading rise to filing of this appeal\r\nare as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\nRespondent No.3 issued a communication dated\r\n04.05.2022, bearing No.119, wherein a Sub- <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Committee has been constituted to inspect the\r\nNursing Colleges and Allied Health Sciences Colleges\r\nand Nursing Schools in the State of Karnataka to\r\nascertain as to whether they have been running the\r\ninstitution as per the guidelines issued by the Indian\r\nNursing Council and to inspect the building\r\ninfrastructure, etc. The petitioner aggrieved by the\r\ncommunication dated 04.05.2022, constituting a SubCommittee, preferred a writ petition in W.P.No.\r\n9456/2022. The learned Single Judge after\r\nconsidering the material on record, dismissed the writ\r\npetition vide order dated 11.08.2022. The petitioner,\r\naggrieved by the order passed by the learned Single\r\nJudge, has filed this intra-court appeal.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">12. The Committee has power to record the\r\nevidence and to call for records as per Rule 205 of the\r\nRules. The learned Single Judge referred Rule 205 in\r\nparagraph No.13 of the impugned order and held that\r\nthe Committee has the power to record evidence.\r\nThe learned Single Judge has recorded a finding that\r\neducation, including technical education, medical\r\neducation and universities is a part of item No.25 of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the concurrent list in Schedule-7 of the Constitution of\r\nIndia and the Nursing Colleges are bound by the\r\nIndian Nursing Council Act, 1947, which is a central\r\nenactment and also the Karnataka Nurses Midwives &\r\nHealth Visitors Act, 1961 and Rajiv Gandhi University\r\nof Health Sciences Act, 1994, which are the\r\nenactments of the Karnataka State. Thus the\r\nKarnataka State Legislature is empowered to legislate\r\nin respect of Nursing Colleges and Committees can\r\nalways be constituted by the Legislative Council to\r\nstudy the performance of the Nursing Colleges in the\r\nState of Karnataka. As per Section 3 of the\r\nKarnataka Nurses, Midwives and Health Visitors Act,\r\n1961, the State government is empowered to\r\nestablish Council and Council consists of members\r\ni.e., the Director of Health and Family Planning\r\nServices in Karnataka or such other officer as the\r\nState Government nominate. From the perusal of the\r\nmaterials placed before the court, there was a debate\r\nin the House pertaining to the Nursing Colleges in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">regard to the Indian Nursing Council issuing\r\npermission to run Nursing School & Colleges without\r\ninfrastructures, etc. The Legislative Council\r\nsuggested to constitute a sub Committee to study the\r\nprevailing situation so that it can enlighten the\r\nlegislatures on the whole range of governmental\r\nactions and the information obtained can be used as a\r\nbasic for the legislation or administrative reforms.\r\nThe duty of the sub Committee is to present the\r\nreport to the Legislative Council by the Chairman of\r\nthe Committee as per Rule 215 of the Rules. After\r\npresentation of the report by the Committee, the\r\nChairman may after considering the state of business\r\nallot such a time for discussion of the report of the\r\nCommittee under Rule 217 of the Rules. The\r\nCommittee shall have such or other functions as may\r\nbe assigned to it by the Chairman from time to time\r\nas per Clause-3 of Rule 223 of the Rules of Procedure\r\nand Conduct of Business in the Karnataka State\r\nLegislative Council. Once if the Committee submits </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the report, the said report will not be made available\r\nto the public. The grievance of the petitioner that if\r\nthe Committee is appointed and a report is submitted,\r\nit will be made available to the public and the said\r\nreport may be misused by the public. The grievance\r\nof the petitioner is taken care of by the Rules.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n 13. As observed above, the Committee is\r\nconstituted only to study the functioning of the\r\ncolleges and not to supervise or perform the functions\r\nof the authorities under the various laws. Hence the\r\nCommittee has the power to visit Nursing Colleges to\r\nstudy about the infrastructures, etc. The said\r\nCommittee is not vested with any adjudicatory\r\njurisdiction which belongs to judicature under the\r\nconstitutional scheme.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. From the perusal of the judgments referred\r\nabove, the Committee is not an adjudicatory\r\nauthority. It only submits a report regarding the\r\nreference made to the Committee. The learned senior\r\ncounsel for the petitioner placed reliance on the\r\njudgment of the Hon\'ble Punjab & Haryana High Court\r\nin the case of SANDEEP KUMARI (SUPRA). In the said\r\ncase, Committee was appointed by Punjab Vidhan\r\nSabha and the Committee has submitted a report and\r\nthe said report was not accepted by the State\r\nGovernment and further held that the question of redetermination of their inter se merit i.e., selective\r\ncandidate should not stricto sensu be the function of\r\nthe legislative Committee. In the present case, as the\r\nIndian Nursing Council is granting the permission to run the Nursing Colleges/Schools without\r\ninfrastructure, and the said issue was raised in the\r\nCouncil and it was suggested to appoint a Committee\r\nto inspect the Nursing Colleges/Schools to ascertain\r\nthe infrastructures, as per the guidelines of the Indian\r\nNursing Council. In the instant case, the subcommittee is yet to submit the report. Before\r\nsubmitting the report, the petitioners have knocked\r\nthe doors of this court. The facts involved in the said\r\ncase is different from the facts involved in the present\r\ncase. The said decision is not applicable to the\r\npresent case in hand. Further there is no dispute in\r\nregard to the principles laid down in the other\r\njudgments placed on record by the learned counsel\r\nfor the petitioners. The said judgments are not\r\napplicable to the present case on hand.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The writ appeal is dismissed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a52b488c4bfe81b7fef8843eccda586d.jpeg', '22ddea2cb5c882b2fe4f15a485b0ea94.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-10', 1, '', '', '2023-01-06 20:34:40', '2023-01-10 10:49:46');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2546, 'Pss0vLAdKgL2IgINsv89rHyvp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Death of employee due to the negligence of the owner/occupier of the factory. Simultaneous prosecution under Section 304-A of IPC and Section 92 of the Factories Act is not permissible. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>John A Eapen and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 7964 of 2016 decided on 2 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioners are charge sheeted for the offence\r\npunishable under Section 304-A of IPC alleging that the\r\npetitioners are the owners and the occupiers of the factory\r\nin question and one Harish.G.M., who was working as\r\nhelper in the factory died due to electrocution. The\r\ncognizance taken by the learned Magistrate for the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">aforesaid offence against the petitioners is impugned in\r\nthis petition.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. It is undisputed that the petitioners have been\r\nconvicted for the offence punishable under Section 92 of\r\nthe Factories Act and the Co-ordinate Bench of this Court\r\nin Crl.P.No.5115/2014 has held that simultaneous\r\nprosecution under Section 304-A of IPC and Section 92 of\r\nthe Factories Act is impermissible, since the offence under\r\nSection 92 of the Factories Act and Section 304-A of IPC\r\nare of the same kind and are punishable with same\r\nquantum of punishment and hence, Section 26 of the\r\nGeneral Clauses Act becomes applicable requiring the\r\noffender to be prosecuted only under one enactment and\r\nconsequently, the proceedings initiated against the\r\naccused for the offence punishable under Section 304-A\r\nstands quashed. In view of the ratio enunciated by the Coordinate Bench in the aforesaid case, continuation of\r\ncriminal proceedings against the petitioner-accused will be\r\nan abuse of process of law. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">6. Learned counsel for the petitioners has filed a\r\nmemo stating that a sum of Rs.3,00,000/- is paid as global </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">compensation to the legal representatives of the deceased\r\nemployee.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 1. Criminal petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9f8d50ca2c57c0386c02994933ed1c51.jpeg', '2b153b50edce8d97f67fe214f70ddf3e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-11', 1, '', '', '2023-01-06 20:44:42', '2023-01-11 02:17:04'),
(2547, 'Us62GMbpZ4o0i17JtpvP2MuU9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Land Reforms Act. Tenancy cannot be claimed against a person who is not a landlord even within the extended definition. Karnataka High Court quashes Land Tribunal order after 25 years.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K. Surendra Kamath Vs The Land Tribunal Udupi and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 22776 of 2002 decided on 12 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">Petitioner seeks to lay a challenge to the Land\r\nTribunal order dated 05.11.1977 (Annexure-A) on the\r\nground that he is the owner of the land in question by\r\nvirtue of Registered Sale Deed dated 29.01.1960, affirmed\r\nin the family Settlement which is registered on 19.08.1968.\r\nHe adds, no proceedings could have been undertaken in\r\nterms of application in Form No.7 filed under Section 48A of\r\nthe Karnataka Land Reforms Act, 1961. Learned counsel for\r\nthe Petitioner draws attention of the Court to paragraph 6&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the pleadings wherein, an explanation is offered for the\r\nlong delay brooked.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. Having heard learned counsel for both the\r\nparties and having perused the Petition Papers, copies&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">whereof are made available after the originals having been\r\ndestroyed arguably by mistake of the Registry, this Court is\r\ninclined to grant indulgence in the matter inasmuch as, the\r\nRight to Property is constitutionally guaranteed under\r\nArticle 300A, therefore, that right cannot be cut short with\r\nno notice to the owner of the land. Where there is no notice\r\nof the proceedings at all, the length of the delay brooked\r\npales into insignificance, says a catena of decisions of the\r\nApex Court. Apparently, there are registered instruments\r\nwhich prima facie establish the interest of the petitioner in\r\nthe subject land at least, the Land Tribunal ought to have\r\nascertained who the true owner of the land is by verifying\r\nthe said papers. However, this having not happened,\r\nindulgence of the Writ Court is warranted.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. Under the scheme of Sections 44, 45 &amp; 48A of\r\nthe 1961 Act, inter alia, occupancy can be claimed only\r\nagainst the owner of the land, of course, the definition of\r\nlandlord being wider than usual; a person cannot claim\r\ntenancy against another who is not a landlord even within\r\nthe extended definition given under Section 2(20) of the\r\n1961 Act. There is absolutely no explanation forthcoming as\r\nto why no notice was issued to the Petitioner and as to\r\nwhether he was named as Respondent in Form 7 or not.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In view of the above, this Writ Petition is allowed in\r\npart.&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8eb906e48b1f4e42a1a0b97d84c0da69.JPG', 'd9f526e266f54567e898ee8a1313c1e1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-10', 1, '', '', '2023-01-08 18:38:10', '2023-01-10 03:14:52'),
(2548, 'vgnf93T2JSqPcRRAvpynVWpo1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Tax on Entry of Goods Act. Denatured spirit and ethyl alcohol are two different products. Clarification cannot run counter to the Tax Entries to levy entry tax. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shree. Renuka Sugars Ltd Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 63222 of 2009 decided on 15 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner has challenged the communication dated\r\n10.02.2009 issued by the respondent No.2 clarifying that\r\ndenatured Anhydrous alcohol is a kind of Ethyl alcohol and is\r\ntaxable at 4%.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n2. The petitioner is a dealer engaged in manufacture\r\nand sale of denatured Anhydrous Ethyl Alcohol and is\r\nregistered under the provisions of the Karnataka Value\r\nAdded Tax, 2003 (for short “VAT Tax”) and Karnataka Tax on\r\nEntry of Goods Act, 1979 (for short “KTEG Act”). The\r\npetitioner is a purchaser/manufacturer of denatured spirit <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and supplying it to various petroleum companies. The\r\ndenatured spirit purchased/manufactured and supplied to\r\nvarious petroleum companies for the period 2007-08, 2008-\r\n09 is sought to be taxed at the rate of 4% under Section 3 of\r\nthe Karnataka Tax on Entry of Goods Act, 1979.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">7. Section 3 of the KTEG Act deals with levy of tax\r\nand it specifies that “tax shall be levied and collected on the\r\nentry of any goods specified in the First Schedule into a local\r\narea for consumption, use or sale therein at such rates not\r\nexceeding 5% of the value of the goods as may be specified </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">retrospectively or prospectively by the State Government by\r\nNotification, and different dates and different rates may be\r\nspecified in respect of different goods or different classes of\r\ngoods of different local areas”. In other words, the tax can\r\nbe levied only by issuing a notification and not otherwise.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. The notification dated 30.04.1992 issued by the\r\nGovernment of Karnataka in exercise of powers conferred\r\nunder section 3(1) of KTEG Act, tax was levied at the rate of\r\n2% on denatured spirit, rectified spirit and ethyl alcohol. The\r\nnotification dated 31.03.1997 provided for levy tax on\r\ndenatured spirit at the rate of 4%. Thereafter, a notification\r\ndated 15.02.2001 was issued exempting payment of tax on\r\ndenatured spirit and also in the subsequent notification dated\r\n30.03.2002. These notifications are not disputed by the\r\nState Government which provides for exemption from\r\npayment of tax on denatured spirit under notification dated\r\n30.03.2002 issued in exercise of powers under section 3(1)\r\nof the KTEG Act. The levy of tax on denatured spirit have\r\nbeen omitted and the petitioner is not liable to pay tax for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the period 2007-08 and 2008-09 and levy or payment of tax\r\non denatured spirit is exempted.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Respondent No.2 has clarified that the denatured\r\nspirit includes ethyl alcohol. Entry 86 of the First Schedule of\r\nthe KTEG Act specifies that spirit and alcohol means\r\ni)denatured spirit, ii) rectified spirit and iii) ethyl alcohol.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Reading of the Entry indicates that the denatured\r\nspirit and ethyl alcohol are two different products and that\r\nthey are not one and the same product. Hence, the\r\nclarification issued by respondent No.2 is contrary to the\r\nEntry-86 of the First Schedule of the KTEG Act.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. The decisions relied upon by the respondent are\r\nnot applicable to the facts of the present case. The levy of\r\ntax is for the period 2007-08 and 2008-09 and for the said\r\nperiod, there was no notification issued under section 3(1) of\r\nthe KTEG Act levying entry tax on the denatured spirit.\r\nHence, the petitioner is not entitled to pay the entry tax on\r\nthe denatured spirit for having purchased, manufactured or\r\nsupplied it to the various petroleum companies for the said <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">period. Accordingly, the writ petition is allowed and the\r\nclarification dated 10.02.2009 issued by the respondent No.2\r\nat Annexure-C is hereby quashed.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1af49bddc190a73d8322c7ced2b6f7e5.jpeg', 'ccb3bf67ada234644752938f80a68af2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-10', 1, '', '', '2023-01-08 19:20:19', '2023-01-10 07:18:19'),
(2549, 'szxIZix9coUEDcDkWqM8nFdqf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Promissory Estoppel. Concession given by a statutory authority cannot be withdrawn unless the concession was contrary to law. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Suchitra Cinema and Cultural Academy Vs The Commissioner, BDA and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 58854 of 2014 decided on 3 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The difficulty which the petitioner is put to arose because\r\nof BDA’s employment of a wrong English word namely,\r\n‘donation’ in a lease transaction and the same having\r\nbeen literally construed by the statutory auditing party,\r\nthe concession given to the lessee was sought to be\r\nrevoked.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The Petitioner, a private Trust registered under\r\nthe provisions of Indian Trusts Act, 1882 is grieving\r\nbefore the Writ Court against the BDA’s Letter dated\r\n19.11.2014 (Annexure-M) whereby it is asked to pay\r\nback a sum of Rs.50 Lakh on the ground that such a\r\n‘donation’ could not have been made by the BDA - an\r\nauthority constituted under the Bangalore Development\r\nAuthority Act, 1976 whilst renewing lease of the sites in\r\nquestion.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Having heard the learned counsel for the\r\nparties and having perused the Petition papers, this\r\nCourt is inclined to grant indulgence in the matter as\r\nunder and for the following reasons:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">a) Petitioner is a registered Trust and not a profit\r\nmaking entity is apparent from the registered Trust Deed\r\ndated 05.03.1979 at Annexure-A. Initially, it had secured a\r\n30 year lease of the subject sites vide registered deed\r\ndated 28.12.1979 from the Respondent – BDA. The BDA on\r\nrequest has accorded the renewal of this lease on\r\n16.06.2010 for the same tenure, the original tenure having\r\nexpired on 28.12.2009, along with the concession of Rs.50\r\nlakh as instructed by the Hon’ble Chief Minister of the State\r\npresumably u/s.65 of the 1976 Act. It hardly needs to be\r\nstated that the Act and the Rules promulgated thereunder\r\nprovide for entering into lease transactions as well. It\r\nhardly needs to be stated that the power to enter into\r\ntransactions of the kind includes the incidental power to\r\ngrant some concessions keeping in view a host of factors,\r\nas may be directed by the Government u/s.65. Further, the\r\nconcession of the kind by no stretch of imagination can be\r\ntreated as illegal. That being the position, the counsel </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for the petitioner is more than justified in submitting that\r\nthe BDA now cannot turn around and rescind the\r\nconcession. Law abhors approbation & reprobation,\r\ninasmuch as the BDA being a statutory authority answers\r\nthe description of State under Article 12 of the Constitution\r\nof India. The instrumentalities of the State have to conduct\r\nthemselves with a measure of fairness and justice, in all\r\ntheir actions. However, impugned action falls short of\r\nreasonable fairness standards.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>d) The above apart, it needs to be mentioned that that\r\nthe so called ‘audit objections’ at the hands of the statutory\r\nauditing party appear to have arisen because of wrong\r\nterminology employed by the BDA whilst granting\r\nconcession to the Petitioner by calling the same as\r\n‘donation’, grossly unmindful of the meaning of the word, to\r\nsay the least. The term ‘donation’ has been defined in the\r\nCorpus Juris Secundum (Vol.28 page 53) to mean “an act\r\nby which the owner of a thing voluntarily transfers title and\r\npossession of the same from himself to another without any\r\nconsideration; a gift or grant of gratuity…”. There was\r\nnothing that the BDA had given to the petitioner by way of\r\ndonation. What it did was only the granting of some\r\nconcession to the lessee that too on the suggestive\r\ndirection of the Chief Minister of the State. By no stretch of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">imagination such a concession could have been termed by\r\nthe BDA as ‘donation’, in the fact matrix of the case. Even\r\nthe auditing party was swayed away by this English word\r\nwithout ascertaining the substantial nature of the\r\ntransaction in question. A concession of the kind given by\r\nthe lessor to the lessee, is not alien to the law of leases.\r\nThis is a classic instance of wrong terminology employed by\r\nthe officials of the respondent BDA, whilst interacting with\r\nthe petitioner-lessee. The letter correspondence between\r\nthe BDA and the Chief Minister which led to grant of said\r\nconcession did not use this word at all.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(e) The wrong employment of this one single word\r\nof English language has played havoc in the matter to a\r\ngreat prejudice of the petitioner-Trust. It was Bertrand\r\nRussell who decades ago had said that, if language is not\r\nproperly used, what is said is not what is meant; if what is\r\nsaid is not what is meant, then what needs to be done\r\nwould remain undone or misdone. What Justice Holmes </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">said about the words need not be repeated. The BDA\r\ncould have offered a proper explanation to the auditing\r\nparty as to what it meant by the word ‘donation’ in the light\r\nof transaction in question. However, it did not choose to do\r\nthat. The auditing party did not solicit explanation from the\r\npetitioner, either. Therefore, the contention of BDA Panel\r\nCounsel that his client being a statutory authority cannot\r\ngive any donation to anyone since it has to act as the\r\ntrustee of the public funds, does not impress the Court,\r\neven in the least. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the above circumstances, this writ petition\r\nsucceeds; a Writ of Certiorari issues quashing the impugned\r\nletter. As a consequence, Petitioner-Trust is relieved of the\r\nobligation to pay the subject amount claimed by the BDA.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> Costs made easy.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e1c8ed0a5b5fda76a1e7640a41600112.JPG', '565b5aec871b749ee22ccdb77b8209fb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-10', 1, '', '', '2023-01-09 17:41:03', '2023-01-10 12:29:28'),
(2550, 'RXAAYI1H2dWQ0jg4lVbf0ClrC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka SC ST PTCL Act. Repeated sale by grantee constitutes offence of cheating under Section 420 IPC. Such person is not entitled to seek restoration of the granted land and also to retain the consideration received by him. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kumar and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 21977 of 2013 decided on 21 December 2020.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Agglomeration of these petitions raise a\r\nchallenge to the sale deeds executed by the original\r\ngrantee, on different dates, in different petitions, but\r\non a solitary score that the sale has taken place in\r\ncontravention of the provisions of the Karnataka\r\nScheduled Caste and Scheduled Tribes (Prohibition of\r\nTransfer of Certain Lands) Act, 1978 (hereinafter\r\nreferred to as ‘the said Act’ for short).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The original grantee himself applied for\r\nconversion of the agricultural land to non-agricultural\r\npurposes and was granted by an order of the authority\r\ndated 27.05.1994, pursuant to the conversion of the\r\nland, the original grantee sold the land on 07.04.2004\r\nin favour of one T. Suresh Gowda. Immediately after\r\nthe sale, filed an application before the Assistant\r\nCommissioner in the year 2005, invoking the\r\nprovisions of the said Act seeking annulment of the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sale on the ground that, it was in violation of Section\r\n4(2) of the said Act.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. The dates and events are not in dispute. All\r\nthese lands were granted to persons belonging to\r\nScheduled Caste/Scheduled Tribes under the\r\nprovisions of the said Act on 31.05.1978. The extent&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and the original grantees differ. The grant was made\r\non 31.05.1978 in all these cases directing that the\r\ngrantee shall not alienate the land for a period of 15\r\nyears.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">18. The original grantee then sold the land to\r\nrespondent No.10 - T. Suresh Gowda on 07.04.2004\r\nto respondent No.10 herein after which the original\r\ngrantee approached the Assistant Commissioner&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">invoking the provisions of the said Act with particular\r\nreference to Section 4(2) of the said Act contending\r\nthat the land has to be resumed in favour of the legal\r\nheirs of the original grantee as the land was sold in\r\ncontravention of the said Act, in the year 2005. The\r\nAssistant Commissioner, by his order dated\r\n09.06.2006, declined to accept the plea of the legal\r\nheirs of the original grantee on the ground that the\r\nland was converted by the original grantee himself in\r\nthe year 1994 and the land having lost its character of\r\nbeing agriculture, the grantee had no right to seek\r\nresumption of the land.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. If the facts obtaining in the judgment of\r\nthe learned Division Bench are juxtaposed to the facts\r\nobtaining in the case at hand. It would become\r\nunmistakably clear that repeated sale by the original\r\ngrantee or his legal heirs amounts to cheating.\r\nTherefore none of the grounds urged by the learned\r\ncounsel for the petitioner sounds acceptance . For the\r\naforesaid reasons the writ petition No.21977/2013\r\nlacks merit and is dismissed.&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '819f7a3c0478f8eb26ecdc9abb36d84b.jpeg', 'c4f4bf39aa2796a846ba807c979e371c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-09', 1, '', '', '2023-01-09 17:57:19', '2023-01-09 12:27:31'),
(2551, 'IEU1GYMIQFYaEthntl1xoRSLQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Goods manufactured by use of modern technologies cannot be said to be “diversification” unless the goods are different from the goods manufactured before such diversification, to claim the exemption from trade tax. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>AMD Industries Limited Vs Commissioner of Trade Tax, Lucknow and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 108 of 2013 decided on 9 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice Krishna Murari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order passed by the High Court of Judicature at Allahabad in Trade\r\nTax Revision No. 275 of 2004 by which the High Court has dismissed\r\nthe said revision application preferred by the appellant herein and has\r\nconfirmed the order passed by the learned Trade Tax Tribunal, Lucknow</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bench, Lucknow (hereinafter referred to as “Tribunal”) and the\r\nAssessing Officer holding that for the goods manufactured, the appellant\r\nis not entitled to the exemption under Section 4-A (5) of the U.P. Trade\r\nTax Act (hereinafter referred to as “Act”), the manufacturer – original\r\nrevisionist has preferred the present appeal.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The facts leading to the present appeal in nutshell are as under:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n3.1 The appellant herein established the unit for manufacture of “Spun\r\nLine Crown Cork” in the year 1986, used as one of the packing materials\r\nof the \'glass bottles\'. The appellant submitted an application on\r\n24.05.2000 for granting eligibility certificate under Section 4-A of the Act\r\nbefore the Divisional Level Committee for manufacture of “double Lip\r\nDry Blend Crown” under the program of diversification.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3.3 At this stage, it is required to be noted that if the goods\r\nmanufactured would have been considered as a new product under the\r\ndiversification scheme, the appellant was entitled to the exemption under\r\nSection 4-A(5) of the Act. The appellant was denied the exemption </span><span style=\"font-size: 12pt;\">under Section 4-A(5) of the Act. The appellant preferred an appeal\r\nunder Section 10 of the Act against the order dated 10.12.2003 passed\r\nunder Section 4-A of the Act before the Trade Tax Tribunal contending\r\ninter alia that the process of manufacture and the machineries used for\r\nboth the products (existing and the new) are different.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>3.4 It was also the case on behalf of the appellant that the existing\r\n(old) product cannot be manufactured on the new installed machine and\r\nvice-a-versa, the new product cannot be manufactured on the old\r\nmachines. It was also the case on behalf of the appellant that one of the\r\nmajor raw materials for both the products are not the same and that\r\nultimate use of both the products are different. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3.6 The appeal preferred by the appellant came to be dismissed. The\r\nsecond appeal before the Tribunal also came to be dismissed. It was\r\nspecifically held that the nature of goods being produced under the\r\nmodern technology is not different than the goods produced by the unit\r\nearlier, as both the produced material are used in packing the bottles of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cold drinks and therefore, as the goods manufactured are not different\r\nbut the same and used for the same purpose, the appeals came to be\r\ndismissed. Against the order passed by the Tribunal, the revision\r\napplication before the High Court has been dismissed by the impugned\r\njudgment and order, and, hence the present appeal.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. The short question which is posed for consideration of this court\r\nis:-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>“Whether for the goods, manufactured by use of modern\r\ntechnologies can be said to be “diversification”, and\r\nmanufacturing of the goods of a nature different from the\r\ngoods manufactured earlier entitle the appellant to claim\r\nthe exemption from trade tax as provided under Section\r\n4-A (5) of the U.P. Trade Tax Act?<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8.3 In the present case, the appellant was manufacturing / producing\r\n“Spun Line Crown Cork” used for sealing the glass bottles. With the use\r\nof modern technologies, now the appellant is manufacturing “Double Lip <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Dry Blend Crowns”, which is also used for sealing the glass bottles. The\r\nearlier product being manufactured by the appellant was used for sealing\r\nglass bottles and subsequently the additional product produced with the\r\nuse of modern technology is also being used for the same purpose\r\nnamely, “sealing glass bottles”. Therefore, the same cannot be said to\r\nbe manufacturing of goods different from being manufactured before\r\nsuch diversification. With the passage of time, due to advancement in\r\ntechnology, if there is a replacement of the old machinery with the new\r\nmachinery for improvement in quality and quantity of a product, at the\r\nmost, it can be said to be expansion and/or modernization, but it cannot\r\nbe said to be “diversification”, which is “manufacturing of goods different\r\nfrom the goods manufactured before such diversification”. In a case of\r\n“diversification”, the effect has to be that the quality and quantity of the\r\nproduct should have been improved and/or increased but if the ultimate\r\nuse is the same, the product manufactured on use of modern and/or\r\nadvanced technology cannot be said to be manufacturing the different\r\ngoods for claiming the exemption from payment of trade tax. The words\r\nused in Section 4-A are very clear and unambiguous. As per the settled\r\nproposition of law and as observed hereinabove, the Statute and more\r\nparticularly, the exemption provisions are to be read as they are and to\r\nbe construed literally and should be given a literal meaning. Giving the\r\nliteral meaning to the exemption provision namely, Section 4-A, it cannot </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be said that the appellant is entitled to the exemption as claimed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n8.4 Considering the aforesaid facts and circumstances of the case and\r\nas observed hereinabove, when the provisions of the Act unequivocally\r\nprovides that the “diversification” can be considered only in a case where\r\n“goods of different nature” are produced, and only then the exemption\r\nshall be available. The goods manufactured on “diversification” must be\r\na “different”, “distinct” and a “separate” good in nature. In the present\r\ncase, the goods manufactured on use of advance and/or modern\r\ntechnology, cannot be said to be a different commercial activity at all.\r\nThe High Court has not committed any error in refusing to grant\r\nexemption to the appellant. We are in complete agreement with the view\r\ntaken by the High Court.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>9. In view of the above and for the reasons stated above, present\r\nappeal fails and the same deserves to be dismissed and is accordingly\r\ndismissed. No costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b3515d944a100a9fe121fc708eff19b0.jpeg', 'e408979ce2f716471de5141e86d16fcd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-12', 1, '', '', '2023-01-10 13:06:51', '2023-01-12 08:19:38');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2554, 'ivyAaglpgUqbW2UMPnxO8IbOd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'National Highways Act. Disbursement of the compensation cannot be withheld or delayed merely on the ground that the award is sought to be challenged. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>T. Younis Vs Special Land Acquisition Officer and The Competent Authority, NHAI and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 104106 of 2022 decided on 6 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Two endorsements issued by the Special Land\r\nAcquisition Officer (for short, “the Competent Authority”),\r\nNational Highway Authority dated 20.05.2022 and\r\n20.09.2022 vide Annexures-F and F1 respectively are\r\nchallenged in this writ petition by the landowner.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The Competent Authority, by the abovementioned endorsements, has informed the petitioner that\r\nthe payment of the compensation in respect of the\r\nacquired lands belonging to the petitioner in\r\nSy.Nos.503/A2 & 503/B2 of Amaravati Village, Hospet\r\nTaluk cannot be made because the National Highway\r\nAuthority of India (for short, \"NHAI\") had received a legal\r\nopinion that it should not release the payment due to the\r\npendency of the applications filed under Section 33 of the\r\nArbitration and Conciliation Act, 1996 (for short, \"the A & <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">C Act\") and the payment would be released by NHAI only\r\nafter the award attains finality.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3. The admitted facts of the case are that a\r\nnotification under Section 3A of the National Highways Act,\r\n1956 (for short “the Act”), declaring the intention of the\r\nGovernment to acquire the lands was published on\r\n15.12.2009. This was followed by a declaration under\r\nSection 3D of the Act, which was published on 14.12.2010.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. The Competent Authority determined that a\r\nsum of Rs.12,916/- per sq. mtrs. was the compensation\r\npayable to the landowner. This order determining the\r\ncompensation was passed under Section 3G (1) of the Act\r\non 05.12.2011</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. The questions that are, therefore, required to\r\nbe considered in this writ petition are as follows:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Whether the Competent Authority possess\r\nthe jurisdiction to refuse payment of\r\ncompensation awarded to the land-loser?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) Whether the Competent Authority can seek\r\nfor the opinion of the Executing Agency for\r\ndisbursal of the compensation and refuse\r\npayment based on the opinion of the Executing\r\nAgency?<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>53. Thus, the NHAI is required, by law, to deposit\r\nwithin a period of 7 days with the competent authority, by\r\nway of a demand draft, the amount determined as\r\ncompensation by the Competent Authority or by the\r\nArbitrator.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>57. It is thus clear from the statutory scheme, the\r\namount determined as compensation by the competent\r\nauthority is not only to be deposited within 7 days before\r\nthe competent authority but is also required to be\r\ndisbursed immediately thereafter to the landowner.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>58. The intent behind this prescription of deposit\r\nwithin 7 days and payment immediately thereafter in\r\nexplicit terms is rather clear. The Legislature was\r\nconscious of the fact that the acquisition of land was\r\nalways a tedious and time-consuming process and to\r\nspeed up this process, the Act provided for vesting of the\r\nland immediately after the declaration was made.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>60. It should also be kept in mind that, by virtue of\r\nSection 3E (1) of the Act, the NHAI cannot take possession\r\nuntil the amount determined as compensation under\r\nSection 3G of the Act is deposited as provided under\r\nSection 3H(1) of the Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>61. Thus, it is imperative, as per the statutory rules\r\nframed, that the NHAI should deposit the compensation\r\nwithin 7 days of the determination by way of a demand\r\ndraft with the Competent Authority and the said authority\r\nis also statutorily obliged to disburse the compensation\r\nimmediately thereafter. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">71. In the instant case, the Competent Authority\r\ndetermined the amount payable as Rs.12,916/- per square\r\nmeter on 05.12.2011 and consequently, as per the\r\nstatutory rule prevailing as on 2011 i.e., the 1998 rules,\r\nthe amount payable ought to have been deposited before\r\nthe competent authority by way of a demand draft on or </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">before 12.02.2011 and immediately thereafter the said\r\namount was required to be paid by the Competent\r\nAuthority to the land loser.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>72. However, the said amount has not been\r\ndeposited by the NHAI and the amount has also not been\r\npaid to the land loser and there is thus a clear infraction of\r\nthe statutory rule.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>73. In the instant case, the order determining the\r\ncompensation payable by the Competent Authority, was\r\nchallenged by the NHAI by approaching the Arbitrator and\r\nthe Arbitrator by his order dated 16.02.2013 reduced the\r\ncompensation determined. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">97. However, in the present case, this provision\r\nrelating to deposit pursuant to the award of the Arbitrator\r\nwill not arise at all. This is because, under the Rules, the\r\nrequirement to deposit within 30 days would arise only if\r\nthe amount awarded by the Arbitrator is in excess of the\r\namount determined by the Competent Authority. In this\r\ncase, the Arbitrator has only confirmed the order of the\r\nCompetent Authority awarding Rs.12,916 per sq. mtr. and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">it has not awarded any amount in excess of the amount\r\nawarded by the Competent Authority. Thus, the question\r\nof applying this exception to withhold payment of\r\ncompensation would not at all arise.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>101. In this case, the Competent Authority passed its\r\norder determining the compensation on 05.02.2011 and\r\nthe amount was required to be deposited on or before\r\n12.02.2011 as per the 1998 Rules. This, has however, not\r\nbeen done.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>103. As stated above, this date of passing of the\r\nArbitrator’s award on 16.03.2019 would not be relevant\r\nfor the deposit, since the Arbitrator did not award any\r\namount in excess of the amount determined by the\r\nCompetent Authority.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>104. Lastly, the District Court dismissed the\r\napplication filed by NHAI on 03.02.2022 and the\r\napplications for correction, etc., were also dismissed on\r\n04.07.2022 and assuming for the sake of argument, that\r\n04.07.2022 is the starting point, even then, NHAI was\r\nrequired to ensure the withdrawal of the compensation\r\namount by the Competent Authority on or before\r\n03.08.2022.\r\n105. Admittedly, NHAI has failed to ensure the\r\ndeposit was made within 7 days of the original decision of\r\nthe Competent Authority i.e., before 12.02.2011. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>106. The NHAI has also not ensured that the\r\nCompetent Authority was enabled to withdraw the amount\r\nwithin 30 days from 04.07.2022, the date of the\r\nArbitrator’s award and admittedly no interim order has\r\nbeen granted by the District Court restraining the\r\nCompetent Authority to disburse the compensation.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>107. The NHAI has, on the other hand, contended\r\nthat it had a right not to release the payment since the\r\napplications filed under the A & C act were still pending\r\nadjudication. This is clearly impermissible for the reasons\r\nenumerated above.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>108. In this view of the matter, it is hereby held that\r\nthe Competent Authority does not possess the jurisdiction\r\nto refuse payment of compensation awarded to the landloser and the Competent Authority cannot also seek for\r\nthe opinion of the Executing Agency for disbursal of the\r\ncompensation and refuse payment based on the opinion of\r\nthe Executing Agency.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>109. Consequently, the impugned endorsements\r\ndated 20.05.2022 and 20.09.2022 at Annexures-F and F1\r\nrespectively issued by the Competent Authority to refuse\r\npayment cannot be sustained and the same are quashed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n110. The NHAI shall, therefore, discharge its\r\nstatutory obligation to facilitate the Competent Authority\r\nto withdraw the compensation amount determined by the\r\nCompetent Authority and disburse the compensation to\r\nthe land loser.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>111. Since the NHAI has withheld the compensation\r\npayable to the landowner, it would have to necessarily be\r\nliable to pay interest on the compensation which became\r\npayable from 12.02.2011 till the date of payment. Since\r\nSection 3H(5) of the Act prescribes interest at 9% per\r\nannum on the excess amount awarded by the Arbitrator,\r\nin my view, it would be just and proper to direct NHAI to\r\npay interest at 9% per annum on the compensation\r\namount determined by the Competent Authority from <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12.02.2011 i.e., the date which it became payable till the\r\ndate of payment.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>112. The NHAI is directed to ensure that this entire\r\nprocess of payment of compensation to the petitionerlandowner is completed within 30 days from the date of\r\nreceipt of this order.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n Writ Petition is accordingly allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '70b0f96343d58037ead1e886a6b1f730.JPG', '1026403b3c0b05116c21cddb46a0069f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-11', 1, '', '', '2023-01-10 20:52:41', '2023-01-11 08:31:08'),
(2560, 'UwXvDe0h8garSI86dvF7vn6S0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Insecticides Act. Prior written consent by the State Government or a person authorized by it is mandatory before initiating the criminal prosecution for an offence under the Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ankush Khandwe Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 104096 of 2022 decided on 16 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This petition is directed against the impugned order dated\r\n29.08.2019 passed by the learned Civil Judge & JMFC,\r\nBanahatti, in C.C. No. 1117/2021 (P.C.No.196/2021) whereby\r\nthe trial Court took cognizance against the petitioner for alleged\r\noffence punishable under Section 29 of the Insecticides Act,\r\n1968 (for short ‘Act’) and issued summons to the petitioner and\r\nfor consequent quashing of the entire aforesaid proceedings\r\ninsofar as the petitioner is concerned and for other reliefs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Pursuant to a complaint filed by the Agricultural Officer &\r\nInsecticide Inspector, Terdal (for short ‘the complainant’) for\r\nalleged offences punishable u/s 29 of the Act, the trial Court\r\ntook cognizance and directed issuance of summons as against\r\nthe petitioner, Mr.Pradyumna Agarwal, who was arraigned as\r\naccused No.2 in the said proceedings which were registered as\r\nC.C. No.1117/2021 before the trial Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. A perusal of the material on record including the\r\ncomplaint filed by the complainant would indicate that prior\r\nwritten consent by the State Government or a person\r\nauthorized by it not has been obtained by the complainant\r\nbefore presentation of the complaint before the trial Court.\r\nSec. 31 of the Act mandates that obtaining of the written\r\nconsent of the State Government or a person authorized by it is\r\na pre-condition for institution of any prosecution for an offence\r\nunder the Act. In view of the undisputed fact that no such\r\nwritten consent was obtained prior to presentation of the\r\ncomplaint by the complainant before the trial Court, the\r\nimpugned order taking cognizance of the said offences against\r\nthe petitioner and other accused deserves to be quashed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. As rightly contended by the learned counsel for the\r\npetitioner, a perusal of the complaint will indicate that the\r\npetitioner is arraigned as accused No.2 on the ground that he is\r\nthe MD of Agri Search (India) Pvt., Ltd., which is engaged in\r\nthe business of manufacturing and marketing insecticides. The\r\ncomplaint indicates that the said Company is guilty of the\r\nalleged offences and since the petitioner is the MD, he is\r\narraigned as accused No.2. In this context, it can be seen that\r\nthe said Company which has been duly incorporated under the\r\nCompanies Act is both a proper and necessary party to the\r\ncriminal proceedings as mandatorily required u/s 33 of the Act.\r\nIn the absence of arraigning the Company also as an accused,\r\nthe proceedings only against the petitioner who was a CEO is\r\nnot maintainable and that the impugned order and the criminal\r\nproceedings are liable to be quashed on this ground also.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">16. A perusal of the complaint would also show that despite\r\nthe alleged offences said to have been committed by the\r\naforesaid Company Agri Search (India) Pvt., Ltd., there is no\r\naverment in the complaint that the petitioner was in-charge of\r\nor was responsible to the Company and for the conduct of the\r\nbusiness of the Company as contemplated u/s 33 of the Act. In </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the absence of necessary averments in the complaint with\r\nregard to the petitioner being in-charge and responsible for the\r\nconduct of the business of the Company, the impugned order\r\nand the proceedings against the petitioner deserve to be\r\nquashed on this ground also.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n17. A perusal of the complaint would also show that the\r\naddress of the petitioner is given as Belagavi, which is beyond\r\nthe jurisdiction of the trial Court and consequently, in the\r\nabsence of following the mandatory procedure prescribed under\r\nSection 202 Cr.P.C., the impugned order directing issuance of\r\nsummons to the petitioner deserves to be quashed on this\r\nground also.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18. In view of the aforesaid facts and circumstances, I am of\r\nthe considered opinion that the impugned order passed by the\r\ntrial Court in C.C. No.1117/2021 and the proceedings in the\r\nsaid case insofar as the petitioner is concerned, deserve to be\r\nquashed.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> Criminal Petition is hereby allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '036ffb4e6afca32bf33ba34529afc4a2.jpeg', 'fa678781758669dc5d86727b4fb8fb9e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-14', 1, '', '', '2023-01-12 16:12:28', '2023-01-14 06:28:49'),
(2561, 'p8WI3syHgsuBpFsqyFC1G6tEI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Trademarks of Company in liquidation are custodia legis of the Company Court. Only the Company Court can determine the ownership of the mark and declare any disposition as void. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The official Liquidator of M/S Ideal Jawa (India) Limited Vs Registrar of Trade Marks and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Company Application 71 of 2018 decided on 16 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.R. Krishna Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. The admitted facts relevant to the present\r\napplications are thus:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) The Company was incorporated on 22.09.1960.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(ii) On 09.10.1969, registration of the mark ‘Yezdi’ in\r\nClass 12 bearing No. 283322 was granted in favour of the\r\nCompany. Use was claimed since 01.01.1969.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(iii) On 25.07.1991, a company petition bearing No.\r\n76/1991 was filed for winding up of the Company.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n(iv) On 01.08.1998 a website called www.yezdi.com\r\nwas registered by Mr. Irani.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n(v) The Company was wound up on 17.08.2001 and\r\nthe Official Liquidator was appointed to take over the\r\nCompany and oversee the winding up process.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(vi) The Trademark Registry removed the Yezdi mark\r\nin Class 12 bearing No. 283322 on 05.10.2007.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(vii) On 17.06.2013, 14.09.2013, 01.01.2014 and\r\n02.07.2014 Mr. Irani filed applications for registration of\r\ncertain marks both word and device of “Yezdi” before the\r\nTM Offices at Delhi, Mumbai and Ahmedabad.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n(viii) Classic Legends was incorporated on\r\n17.06.2015. It also appears that it was incorporated by Mr.\r\nBoman Irani and Mahindra and Mahindra.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(ix) In the meanwhile, the OL addressed a letter\r\ndated 28.08.2015 to the Registrar of Trademarks not to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">register any mark containing “Yezdi”. The Registrar of TM,\r\nChennai responded to the same on 08.09.2015 requesting\r\nthat a list of applications be provided which was provided\r\nby the OL vide letter dated 29.09.2015.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">13. It is not in dispute that the Company was in the\r\nbusiness of manufacture and sale of motorcycles in the\r\nbrand name ‘Yezdi’. Yezdi was the prominent part of the\r\nmark. Yezdi both as a word and device was utilised by the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Company and several variants of the mark were Yezdi\r\nClassic, Yezdi Roadking, Yezdi Deluxe, Yezdi CL II, Yezdi\r\n175, Yezdi Colt, Yezdi Monarch etc. The important feature\r\nof the marks was the prominent use of ‘Yezdi’. It is stated\r\nthat for some years before the order of winding up was\r\nmade, the manufacture and sale of motorcycles had come\r\nto a stand-still. However, as on the date of winding up, the\r\ntrademark ‘Yezdi’ continued only in the name of the\r\nCompany.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. The central / core issue in the various\r\napplications which are disposed of by this common order is\r\nthe issue of ownership of the mark and if the Company\r\ncontinues to exercise ownership rights over the mark and if\r\nso, can any other person appropriate the said marks to\r\nhimself by the process of registration of the mark with the\r\ntrademark registry.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. The various issues that arise for consideration in\r\nthe present proceedings are dealt with as under:-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Ownership of the Mark:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(viii) The aforesaid facts and circumstances lead to\r\nthe only inevitable conclusion/inference that the mark\r\n“Yezdi” whether as a word or a device or as a composite\r\nmark or read together with other words belonged absolutely\r\nto the Company. Mr. Irani’s claim of ownership over the\r\nmarks on the basis of succession or otherwise stands\r\nrejected.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Abandonment of the Marks</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(xvi) On abandonment, I find that prior to removal of\r\na mark from the register of marks, it was incumbent on the\r\nRegistrar to issue the necessary notices. That no notice\r\nhas been issued to the OL is accepted. That the removal\r\nfrom the register occurred only after the winding up order\r\nwas published is also an admitted fact. It is also clear that\r\nno person made an application for removal of the mark on\r\naccount of non-use. The removal occurred only owing to\r\nfailure to pay the necessary fee for renewal. However, any\r\naction for removal can be taken only after notice is issued\r\nin the prescribed form. As held in Union of India & Ors.\r\nVs. Malhotra Book Depot - (2013 (54) PTC 165 (Del)),\r\nthe failure to issue O-3 notices in terms of the mandatory\r\nrequirements prescribed under Section 25(3) of the Trade\r\nMarks Act, 1999, renders illegal removal of the marks from <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the register for non-renewal. It is also held that there is no\r\nlimitation prescribed in the Act for reinstatement of the\r\nmark. As held in Cipla Ltd. Vs. Registrar of Trade Marks\r\n& Anr. - (DB) 2014 2 Mh. L.J 315, the order of the\r\nRegistrar for removal of the marks from the register without\r\nfollowing the provisions of Section 25(3) is void. Where the\r\nproceedings become in rem upon a winding up order being\r\nmade and the same being published, it is necessary that\r\nthe notice be served on the OL and the failure to serve the\r\nnecessary notice renders the entire removal from the\r\nregister illegal.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(xviii) The petition for winding up was filed in the year\r\n1991. According to Mr.Irani, the Company ceased business\r\nin the year 1996 during the process of winding up. The\r\nwinding up process actually started in the year 2001.\r\nHowever, in terms of the Companies Act, the date of\r\npresentation of the petition for winding up is the relevant\r\ndate to determine the assets and properties of the\r\nCompany and to notice if any disposition has in fact\r\noccurred of the properties of the Company. The stoppage\r\nof business in the year 1996 (even if true) does not affect\r\nthe rights of the Company in and over the trademarks. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">There is no abandonment as of that date. There is no\r\nabandonment prior to winding up which starts from 1991.\r\nThere is no abandonment for reasons already stated after\r\nthe date of passing of the order of winding up. Statutory\r\nabandonment as an argument cannot be countenanced.\r\nUnder these circumstances, the contention of Mr.Boman\r\nIrani and Classic Legends that the trademark has been\r\nabandoned cannot be accepted and even this aspect of the\r\nmatter is accordingly answered in favour of the Official\r\nLiquidator and Ideal Jawa Employees’ Association and\r\nagainst Mr.Boman Irani and Classic Legends.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Jurisdiction of the Company Court</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(xvii) This case is of determination of rights of the\r\nCompany and to recognise the obligation of the OL and of\r\nthis Court to protect the assets of the Company. The\r\njurisdiction of this Court cannot be obliterated by the fact\r\nthat Mr. Irani has obtained registrations of the mark. Once\r\nthe court concludes that the marks belonged to the\r\nCompany at the date of winding up, it follows that the Court\r\nis empowered to take all steps to protect the assets of the\r\nCompany. The registration of the marks by Mr. Irani is\r\ninvalid and in bad faith. They are liable to be cancelled and\r\nsteps would have to be taken in terms of this order.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(xviii) I am therefore of the firm view that no question\r\nof jurisdiction arises. There is no question of conflict. This\r\nCourt has acted within the scope of its jurisdiction to\r\ndeclare a particular act of disposition as being void in law. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The consequences of such determination of ownership and\r\ninvalidity of the disposition will follow.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. My aforesaid findings can be summarized as\r\nunder:-\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The trademarks Yezdi (Yezdi is referred to\r\ncollectively as device mark, word and marks “Yezdi” in\r\nconjunction with other words) belong to the Company in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">liquidation. The trademarks are in custodia legis as they\r\nwere owned by the Company prior to the time of winding up\r\nof the Company.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n(ii) The Company Court is the forum to determine the\r\nquestion of ownership of the marks. The Company Court\r\nhas to take steps to protect all assets of the Company and\r\nany claim made by any third party with respect to the\r\nassets of the Company has to be answered by the\r\nCompany Court. In addition, any disposition of the property\r\nof the Company after commencement of winding up is void.\r\nIf a declaration is so required, it has to be made by the\r\nCompany Court.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(iii) The jurisdiction of the Company Court is not\r\nbarred when the Company is in the process of winding up,\r\nparticularly when the Trademark Registry could not have\r\ngranted registration. Consequent to determination of\r\nownership of the marks, the Registry will have to simply\r\ngive effect to this order and steps would have to be taken\r\nby the OL to ensure that the same is complied with and in\r\nthis factual scenario, the Trademarks Act does not override\r\nthe Companies Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iv) Mr. Irani could not have obtained registration of\r\nthe marks “Yezdi” during the process of winding up. The\r\nconduct of Mr. Irani in obtaining registration of the marks is\r\nin bad faith and amounts to misappropriation of the assets\r\nof the Company.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(v) The Company has not lost rights in and over the\r\nmark “Yezdi” since there is no abandonment of the marks. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>ORDER:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(1) It is hereby declared that the Company is the\r\nowner of the mark “Yezdi” (word and device) taken\r\nindependently or in conjunction with other words and that\r\nthe trademarks of the Company remain in custodia legis of\r\nthis Court.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(2) C.A.No.71/2018 is hereby allowed and all\r\ntrademark, registration certificates issued by Registrar of\r\nTrademarks, Mumbai, Delhi and Ahmedabad in favour of\r\nMr.Boman Irani are null and void and steps have to be\r\ntaken as specified below to give effect to this finding.</span> </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '97a1ab7cbc1fabf6ca7d2463c91605f2.JPG', 'b46378289e785ea725fa7928034e393a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-13', 1, '', '', '2023-01-12 17:00:28', '2023-01-13 03:22:23');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2562, 'eD2t4mQlfHC7SXvsahrCxihN9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Persons having tenancy rights can challenge acquisition proceedings initiated under the 2013 land acquisition Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Ugar Sugar Works Limited Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. 108602 of 2019 decided on 6 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. In this writ petition, acquisition of 86 acres 35 guntas of\r\nland situated at Kusanal Village and Ugar Khurd Village of\r\nBelagavi District is questioned by the petitioner - Company.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Petitioner, a public limited company, contends that it is\r\nthe tenant of these lands and they were inducted as tenants\r\nunder registered Lease Deeds dated 04.09.1951 and\r\n16.02.1972. They also contend that they have made an\r\napplication seeking for conferment of occupancy rights as <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">provided under the Land Reforms Act and the same is\r\npending adjudication before the Land Tribunal.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. A notification under Section 11(1) of the Right to Fair\r\nCompensation and Transparency in Land Acquisition,\r\nRehabilitation and Resettlement Act, 2013 (for short,\r\nhereinafter referred to as \"the 2013 Act\") was issued on\r\n31.05.2016 proposing to acquire a total of 86 acres 35 guntas\r\nof land comprised in Sy.No.127/P1 (measuring 16 acres 24\r\nguntas), Sy.No.128 (measuring 34 acres 37 guntas) and\r\nSy.No.129 (measuring 35 acres 14 guntas) for the purpose of\r\nestablishment of a Rehabilitation Centre at Kusanal Village as\r\na result of execution of Hippargi Dam Project. This notification\r\nwas also published in the Gazette on 09.06.2016 vide\r\nAnnexure-D.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. Having heard the learned counsel for both parties, the\r\npoints that arise for consideration in this petition are :\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i) Whether it is mandatory for the State to\r\nnotify all the persons interested in the land?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\nii) And consequentially, whether the tenant of\r\nthe land is also required to be notified for the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">purpose of enabling him to file objections to the\r\nacquisition?</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>41. However, in this case, the preliminary investigation of\r\nthe Social Impact was not undertaken and no public hearing\r\nwas conducted. The notification states that in cases where an\r\nEnvironment Impact Assessment had been conducted under\r\nanother law, there would be no requirement for conducting a\r\nSocial Impact Assessment under Section 6(2) of the 2013\r\nAct. The notification also states that the construction of the\r\nHippargi Dam Project had been started in 1973 prior to the\r\nEnvironment Impact Assessment notification of the year 1994\r\nand as per the Apex Court\'s judgment dated 18.03.2004, no\r\nex-post facto environmental clearance was necessary. As a\r\nconsequence, the proposed acquisition could not have been\r\nwithin the knowledge of all the persons in the affected area.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">42. If a person affected by the acquisition were to contend\r\nthat the land proposed for acquisition was not for an irrigation\r\nproject or that the land was an irrigated multi-cropped land\r\nand hence could not be acquired, obviously, the opportunity\r\nto object prior to the issuance of the preliminary notification </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as contemplated under the provisions of Chapter II and III of\r\nthe Act was unavailable.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>50. In the instant case, the petitioner was claiming to be\r\nthe tenant and also claimed that his application for\r\nconferment of occupancy rights was still pending adjudication <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and would thus fall within the meaning of the expression\r\n\"person interested\". It is obvious that the petitioner could\r\nraise objection that the land was an irrigated multi-cropped\r\nland and could not thus be acquired and it could also raise\r\nobjections regarding the suitability of acquiring fertile land for\r\nthe purpose of rehabilitating displaced families. It is,\r\ntherefore, clear that the petitioner, who would come within\r\nthe definition of \"person interested\" had a right to object to\r\nthe acquisition and would, therefore, have to be notified.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>68. In the instant case, it is not in dispute that the\r\npetitioner is claiming to be a tenant as defined under the\r\nLand Reforms Act and that its application for being conferred\r\nwith occupancy rights was pending consideration before the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Land Tribunal. It is also not in dispute that the name of the\r\npetitioner is reflected in the cultivator’s column of the RTC,\r\nthereby indicating that they are cultivating the land and it,\r\ntherefore, has an interest in the land. Despite these two\r\nglaring factors, the State has proceeded to notify only the\r\nland owner as if he was the only person interested in the\r\nland. It is to be borne in mind that the petitioner claims to be\r\na tenant under two registered Lease Deeds which date back\r\nto 1951 and 1972 and it is, therefore, obvious that the\r\npetitioner does have a subsisting interest in the lands in\r\nquestion.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>71. As stated above, Section 15 of the 2013 Act confers a\r\nright to persons interested to object to the acquisition on the\r\narea and suitability of the land, the justification offered and\r\nalso to assail the findings of the Social Impact Assessment\r\nreport. The definition of the term \"person interested\" brings\r\nwithin its purview a person having tenancy rights and also a\r\nperson whose primary source of livelihood is likely to be\r\nadversely affected by the proposed acquisition and thus,\r\nthese categories of persons are also clothed with the right to\r\nobject to the acquisition. The fact that the definition\r\nconsidered any person whose primary source of livelihood is\r\nlikely to be adversely affected would be a person interested\r\nobviously means that every person who is mainly dependent <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">on the land sought to be acquired is entitled statutorily to\r\nobject to the acquisition.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>72. It is also to be kept in mind that when the 2013 Act\r\nfundamentally changes the very process of compulsory\r\nacquisition and seeks to involve everyone affected including\r\nthe local self Government to participate and give their inputs\r\nregarding the proposed acquisition, even before a decision is\r\ntaken to initiate acquisition, it would be illogical and unnatural\r\nto exclude a tenant of a land who would also be dependent on\r\nthe land to object to the acquisition.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">73. The State, by not notifying the petitioner, who was a\r\nperson interested in the land, has committed a serious\r\nillegality. The State, by notifying only the land owner, has\r\nbasically deprived the petitioner of raising objections to the\r\nacquisition. Having regard to the fact that the petitioner is\r\nutilizing the entire 86 acres 35 guntas of land for the purpose\r\nof raising a sugarcane crop for manufacturing sugar in its\r\nSugar Factory, in my considered view, it is clear that the\r\npetitioner ought to have been heard before issuance of the\r\ndeclaration. Since the petitioner has not been heard, the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">acquisition proceedings and the declaration are vitiated and\r\nthe same will have to be quashed.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>74. Thus, the points framed above are answered holding\r\nthat it is mandatory for the State to notify all the persons\r\ninterested in the land (as defined under Section 3(x) of the\r\n2013 Act) including the tenant of the land and hear their\r\nobjections before taking a decision to issue a final\r\ndeclaration.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n75. In the result, the writ petition is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '012cff6bcb44f67f693156e2a86fb73f.JPG', '7d988cde76f634688730068163af92aa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-13', 1, '', '', '2023-01-12 17:23:53', '2023-01-13 08:30:13'),
(2563, '5VqRdVFKSK94hUqC98j82shRH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Insecticides Act. Criminal prosecution only against employee of Company cannot be launched without arraigning the Company also as an accused. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Prabhu Bhujabali Kengali Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 104177 of 2022 decided on 16 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> This petition is directed against the impugned passed\r\nby the learned Civil Judge & JMFC, Banahatti in\r\nC.C.No.1118/2021 (P.C.No.197/2021) whereby the trial\r\nCourt has taken cognizance for alleged offence punishable\r\nunder Section 29 of the Insecticides Act, 1968 (for short\r\n‘Act’) and issued summons to the petitioner and for\r\nconsequently quashing of the entire aforesaid proceedings\r\ninsofar as the petitioner is concerned and for other reliefs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. Pursuant to a complaint filed by the Agricultural\r\nOfficer & Insecticide Inspector, Terdal (for short ‘the\r\ncomplainant’) for alleged offences punishable under Section\r\n29 of the Act, the trial Court took cognizance and directed\r\nissuance of summons as against the petitioner and another\r\nwho is arraigned as accused No.1 in the said proceedings </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which is registered as C.C. No.1118/2021 before the trial\r\nCourt.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. A perusal of the material on record including the\r\ncomplaint filed by the complainant would indicate that prior\r\nwritten consent by the State Government or a person\r\nauthorized by it not has been obtained by the complainant\r\nbefore presentation of the complaint before the trial Court.\r\nSec. 31 of the Act mandates that obtaining of the written\r\nconsent of the State Government or a person authorized by\r\nit is a pre-condition for institution of any prosecution for an\r\noffence under the Act. In view of the undisputed fact that no\r\nsuch written consent was obtained prior to presentation of\r\nthe complaint by the complainant before the trial Court, the\r\nimpugned order taking cognizance of the said offences <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">against the petitioner and other accused deserves to be\r\nquashed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n13. As rightly contended by the learned counsel for\r\nthe petitioner, a perusal of the complaint will indicate that\r\nthe employee of the Company is arraigned as accused No.2\r\non the ground that he is employee of the said company\r\nwhich is engaged in the business of manufacture and\r\nmarketing insecticides. It is further submitted that the\r\npetitioner who is retailer is arraigned as accused No.1 though\r\nhe is not guilty of any offence as alleged in the complaint.\r\nThe complaint indicates that the said Company is guilty of\r\nthe alleged offences and since the accused No.2 is the\r\nemployee, he is arraigned as accused No.2. In this context,\r\nit can be seen that the said Company which has been duly\r\nincorporated under the Companies Act is both a proper and\r\nnecessary party to the criminal proceedings as mandatorily\r\nrequired u/s 33 of the Act. In the absence of arraigning the\r\nCompany also as an accused, the proceedings only against\r\nthe petitioner herein and accused No.2 who was an\r\nemployee of the company is not maintainable and therefore, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">entire proceedings are liable to be quashed on this ground\r\nalso.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>14. A perusal of the complaint would also show that\r\ndespite the alleged offences said to have been committed by\r\nthe aforesaid Company Pollen Agro Minerals Private Limited\r\nPune, there is no averment in the complaint that accused\r\nNo.2 was in-charge of or was responsible to the Company\r\nand for the conduct of the business of the Company as\r\ncontemplated u/s 33 of the Act. In the absence of necessary\r\naverments in the complaint with regard to the petitioner\r\nbeing in-charge and responsible for the conduct of the\r\nbusiness of the Company, the impugned order and the\r\nproceedings against the petitioner deserve to be quashed on\r\nthis ground also.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n Criminal Petition is hereby allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fe812790c42a1a2cd4b8430af593b62f.jpeg', '92d534297aaf1eda2656dc410ee9de45.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-13', 1, '', '', '2023-01-12 20:06:13', '2023-01-13 10:51:34'),
(2564, 'kyn7Ybwax9bq7UW1RzH9a52Rx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Employee of an alleged scamster company cannot be criminally prosecuted unless it is shown that he connived with the fraudsters. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Uma M Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 1399 of 2017 decided on 2 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Petitioner has been charge sheeted for the offence\r\npunishable under Section 420 of IPC and Sections 3, 4 and 5 of\r\nPrize Chit Money Circulation Scheme (Banning) Act, 1978,\r\nSection 9 of Karnataka Protection of Interest Depositor\'s Act,\r\n2004 and Section 58B, 5A of the Reserve Bank of India Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The summary of the charge sheet is that accused\r\nNo.1 started a company in the name and style M/s UNI PAY 2U </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Marketing Private Limited Company and became the CEO of the\r\nsaid Company. Accused No.1 along with other accused got\r\nregistered the Company in Chennai and also opened its branch\r\noffice at Bangalore and invited depositors from the public under\r\nvarious schemes launched by it. It is further alleged that these\r\nschemes were shown to the public that the money invested by\r\nthem would be doubled for which large number of depositors\r\ninvested total sum of Rs.2,03,29,500/- and the accused in turn\r\nreturned sum of Rs.22,15,262/-towards profit on the investment\r\nmade by the depositors and did not return the balance amount\r\nof Rs.1,80,94,238/- and have cheated the depositors.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. Case was registered in Crime No.413/2015 making\r\nthe very same allegation made in the impugned FIR, and the\r\ncognizance taken by the learned Magistrate in Crime <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">No.413/2015 for the aforesaid offences was impugned in\r\nCrl.P.No.1400/2017. The Co-ordinate Bench of this Court by\r\norder dated 10.3.2021 quashed the proceeding impugned\r\ntherein stating that the petitioner-accused No.9 herein, who was\r\narraigned as accused No.11 therein, was only an employee\r\nworking in the accused No.1 Company and that itself is not\r\nsufficient to hold that the petitioner-accused No.9 participated in\r\nthe alleged act of cheating by the Company against the\r\ndepositors.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 8. In the absence of any material placed along with\r\nthe charge sheet that the petitioner-accused had connived\r\nwith other accused in cheating the investors of the accused\r\nNo.1 company, cognizance taken by the learned Magistrate\r\nin the absence of any corroborative material is one without\r\nany substance. Hence, the continuation of the criminal\r\nproceedings against the petitioner will be an abuse of\r\nprocess of law, since the possibility of conviction of the\r\npetitioner is remote and bleak,</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>ORDER:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i) The Criminal Petition is allowed. </b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8806d42797a98569b44a830568fa4cbe.jpeg', '25db49cecfaa495fa90e58b6b686eb9e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-14', 1, '', '', '2023-01-13 13:42:59', '2023-01-14 03:22:23'),
(2565, 'nQgVViYtg8PNZWoIy0SWiXHSf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'C. Haridasan vs Anappath Parakkattu Vasudeva Kurup & Others. Separate Judgements of Justice MR Shah and Justice BV Nagarathna. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>C. Haridasan Vs Anappath Parakkattu Vasudevakurup and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4072 of 2022 decided on 13 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. That the plaintiff and the defendants entered into an agreement to\r\nsell dated 07.08.2005 under which the defendants agreed to sell the\r\nland in question for a consideration of Rs. 8,750/- per cent. The plaintiff\r\npaid an amount of Rs. 10,000/- as advance towards the part sale\r\nconsideration amount. The balance consideration was agreed to be paid\r\nby the plaintiff within six months from the date after measuring the\r\nproperty provided the defendants make available the documents of title\r\nincluding the purchase certificate under the Kerala Land Reforms Act. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. I have heard the learned counsel for the respective parties at\r\nlength.\r\nAt the outset, it is required to be noted that the execution of\r\nagreement to sell and receipt of part sale consideration paid under the\r\nagreement to sell has not been disputed by the defendants. It is not in\r\ndispute that the defendants as such agreed to sell the property in\r\nquestion</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. It is contended on behalf of the defendants that the agreement to\r\nsell was a forced agreement to sell. On the contrary, the defendants\r\nstated in the written statement in para 4 that the defendants were\r\nalways ready and willing to perform their part of the contract. It may be\r\ntrue that at the relevant time the defendants may be in need of money.\r\nHowever, the fact remains that they agreed to sell the property in\r\nquestion for sale consideration mentioned in the agreement to sell and\r\nas observed hereinabove, it was the case on behalf of the defendants\r\nthat they were always ready and willing to perform their part of the\r\ncontract. Therefore, as observed hereinabove, it was never the case on\r\nbehalf of the defendants in the written statement and/or even before the\r\nlearned trial Court that the agreement to sell was inequitable and/or was\r\na forced agreement to sell. Even the learned trial Court also did not\r\nframe the issue, “whether agreement to sell was a forced agreement to\r\nsell/contract or not”. On appreciation of entire evidence on record, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">learned trial Court after recording the findings on the execution of the\r\nagreement to sell by the defendants and receipt of part sale\r\nconsideration and that the plaintiff was always ready and willing to\r\nperform his part of the contract, decreed the suit for specific\r\nperformance. By the impugned judgment and order, the High Court, as\r\nsuch, has not commented upon and/or set aside any of the findings\r\nrecorded by the learned trial Court, recorded while passing a decree for\r\nspecific performance. Straightway, the High Court has considered\r\nSection 20 of the Specific Relief Act and has observed and held that by\r\nenhancing the amount of sale consideration, the learned trial Court has\r\nwrongly exercised the discretion in favour of the plaintiff. The High\r\nCourt has commented upon the order passed by the learned trial Court\r\nenhancing the amount of sale consideration and directing the plaintiff to\r\npay more amount than the sale consideration mentioned in the\r\nagreement to sell. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. When to do the complete justice and relying upon and/or\r\nconsidering the decision of this Court in the case of Pratap Lakshman\r\nMuchandi v. Shamlal Uddavadas Wadhwa, (2008) 12 SCC 67, the\r\nlearned trial Court directed the plaintiff to pay some more amount than\r\nthe amount mentioned in the agreement to sell, at the most, the plaintiff\r\ncan be said to be aggrieved. Still, the High Court has considered such <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">an order passed by the learned trial Court against the defendants. As\r\nsuch, the learned trial Court was absolutely justified in compensating\r\nthe defendants by paying some more amount while passing a decree\r\nfor specific performance. Therefore, in the facts and circumstances of\r\nthe case and more particularly when the learned trial Court exercised\r\nthe discretion in favour of the plaintiff after having observed and\r\nrecorded the findings on the execution of the agreement to sell by the\r\ndefendants and that the part sale consideration was paid by the plaintiff\r\nwhich was accepted by the defendants and thereafter the finding that\r\nthe plaintiff was always ready and willing to perform his part of the\r\ncontract, the learned trial Court was absolutely justified in passing the\r\ndecree for specific performance. The High Court has erred in interfering\r\nwith the judgment and decree passed by the learned trial Court, without\r\nsetting aside the findings recorded by the learned trial Court recorded\r\nwhile passing the decree for specific performance. The impugned\r\njudgment and order passed by the High Court is unsustainable, both, on\r\nlaw as well as on facts.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>8. In view of the above and for the reasons stated above, the\r\npresent appeal succeeds.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>However, to do complete justice and in exercise of powers under\r\nArticle 142 of the Constitution of India, I direct that over and above the\r\nsale consideration mentioned in the agreement to sell and the amount\r\nalready deposited by the plaintiff, the plaintiff to pay a further sum of Rs.\r\n10,00,000/- (Rupees Ten Lakhs only) to the original defendants, to be\r\npaid within a period of six weeks from today. The amount which might\r\nhave been deposited by the original defendants, deposited pursuant to\r\nthe impugned judgment and order passed by the High Court, i.e., Rs.\r\n3,10,000/- be also returned/paid to the original defendants.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The present appeal is accordingly allowed in the aforesaid terms.\r\nHowever, in the facts and circumstances of the case, there shall be no\r\norder as to costs.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>I have had the advantage of reading the judgment\r\nproposed by His Lordship M.R. Shah, J. However, I regret to\r\nagree with the reasoning as well as the conclusion arrived at by\r\nHis Lordship. Hence, my separate judgment</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The case of the plaintiff in a nutshell is stated as under:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4.1 That the defendants who have Kanam and Kuzhikoor rights\r\nover the suit property, measuring 37 cents since 1989, assigned\r\nsuch rights over the same in favour of the plaintiff for a\r\nconsideration of Rs. 8750/- per cent. That an agreement of sale\r\nin respect of the Kanam and Kuzhikoor rights over the suit\r\nproperty was entered into between the defendants-sellers and\r\nthe plaintiff-buyer on 7th August, 2005 in the presence of\r\nwitnesses. An advance sale consideration of Rs. 10,000/- was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">paid by the plaintiff. The remaining sale consideration was\r\nrequired as per the agreement to be paid within six months from\r\nthe date on which agreement of sale was entered into, following\r\nwhich the sale deed was to be executed in favour of the plaintiff\r\nor his nominees, in respect of the Kanam and Kuzhikoor rights,\r\nwhich are valuable usufructuary rights and possession of the\r\nsuit property was to be handed over to the plaintiff.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4.5 With the aforesaid averments, it was prayed that the\r\ndefendants be directed to receive the balance sale consideration\r\nfrom the plaintiff and execute the sale deed in respect of the\r\nKanam and Kuzhikoor rights over the suit property in his favour.\r\nIn the alternative, it was prayed that the defendants may be\r\ndirected to return the advance amount of Rs. 10,000/- paid by\r\nthe plaintiff, together with interest thereon.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Having heard the learned counsel for the respective\r\nparties, the following points would arise for consideration which\r\nshall be considered together:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i) Whether the plaintiff’s conduct demonstrates readiness\r\nand willingness on his part to carry out his obligations\r\nunder the agreement of sale of Kanam and Kuzhikoor\r\nrights dated 7th August, 2005?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ii) Whether the plaintiff, by not paying consideration above\r\n4% of total sale consideration within the period stipulated\r\nin the agreement, had defeated the purpose of the\r\nagreement to sell Kanam and Kuzhikoor rights executed by\r\nthe defendants?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\niii) What order? </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. The High Court has relied on Section 20 of the Act, prior to\r\nthe same being substituted by way of Act No. 18 of 2018, to\r\ndeny the relief of specific performance to the plaintiff. Section 20\r\nof the Act as it stood prior to the Amendment Act of 2018 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">provided that the jurisdiction to decree specific performance is\r\ndiscretionary. It said that the Court is not bound to grant such\r\nrelief merely because it is lawful to do so. Such a discretion,\r\nhowever, was not to be exercised arbitrarily, but ought to have\r\nbeen based on sound and reasonable judicial principles. The\r\nSection also specified the circumstances in which the Court may\r\nproperly exercise the discretion not to decree specific\r\nperformance and it also specified when, in an appropriate case,\r\na decree could be given by proper exercise of discretion. Section\r\n20, as it then stood was not an exhaustive provision, but merely\r\nillustrative as it was not possible to define the circumstances in\r\nwhich equitable relief could or could not be granted. If, therefore,\r\non a consideration of all the circumstances of the case, the\r\nCourt thought that it would be inequitable to grant the relief\r\nprayed for, it should not do so.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. In the present case, it is an admitted fact that the plaintiff\r\nhad paid an amount, which constituted merely 4% of the\r\nconsideration. The Trial Court itself recorded findings to the\r\neffect that neither party had initiated timely steps to perform\r\ntheir respective obligations under the contract. Although the\r\ndefendants did not make available the title deeds of the schedule\r\nproperty to the plaintiff, it could not be said that the conduct of\r\nthe defendants had prevented the plaintiff from tendering the\r\nbalance sale consideration, within the stipulated date, or at any\r\ntime before filing the suit for specific performance as the whole\r\nobject of the intended sale was to garner funds for discharging a\r\ndebt which was ultimately done by the defendants by selling\r\nfamily jewellery.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>36. In my view, this appeal must fail on the sole ground that\r\nthe conduct of the plaintiff was not reflective of his readiness as\r\nwell as willingness on his part to pursue the agreement of sale of\r\nKanam and Kuzhikoor rights, in terms of Section 16(c) of the Act.\r\nAccordingly, the present appeal is dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">\r\n37. At this juncture, it is clarified that the result of this appeal\r\nhas been arrived at having regard to the conduct of the plaintiff,\r\nwhich does not reflect his willingness to comply with the terms of\r\nthe agreement of sale dated 7th August, 2005. The suit for\r\nspecific performance of the agreement of sale of Kanam and\r\nKuzhikoor rights would fail on the sole ground that the plaintiff\r\nhas failed to comply with the essential requirements of Section\r\n16(c) of the Act. Although it is acknowledged that the defendants\r\nwould be put through hardship if the suit for specific\r\nperformance was decreed in favour of the plaintiff, the appeal has\r\nbeen decided dehors considerations of hardship to the\r\ndefendants, or of other circumstances under which the contract\r\nwas entered into which could give the plaintiff an unfair  </span><span style=\"font-size: 12pt;\">advantage over the defendants, which are considerations in\r\nequity as the relief of specific performance is essentially an\r\nequitable remedy though crystalised in the form of a legislation\r\nas per the Act. Thus, the appeal has not been decided in light of\r\nSection 20 of the Act, as it stood prior to the Amendment Act of\r\n2018. The question as to applicability of the provision of Section\r\n20 of the Act as it stood prior to its amendment in 2018, on\r\ntransactions entered into prior to the date on which the\r\nAmendment Act of 2018, is thus kept open.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>38. The impugned judgment of the High Court of Kerala dated\r\n03rd November, 2021 whereby the High Court set-aside the\r\njudgment and decree passed by the Trial Court, i.e., the Court of\r\nthe Subordinate Judge, Tirur in O.S. No. 205/2006 (by which the\r\nsuit for specific performance of an agreement of sale of Kanam\r\nand Kuzhikoor rights, filed by the plaintiff was decreed), is\r\naffirmed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This appeal is dismissed.\r\nParties are directed to bear their respective costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '98b87a613a051304e2fc0981612cfe83.jpeg', 'e42447dd23e1eecebf24009880d3055e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-16', 1, '', '', '2023-01-13 21:17:30', '2023-01-16 12:36:36');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2567, 'WuDVpAgto9VsmIZAyifBo95uS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Association of Old Settlers of Sikkim and Ors. vs Union of India and Anr. Separate Judgements of Justice MR Shah and Justice BV Nagarathna.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Association of Old Settlers of Sikkim and others Vs Union of India and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 59 of 2013 decided on 13 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. By way of this writ petition under Article 32 of the Constitution of\r\nIndia, the respective writ petitioners – Association of Old Settlers of\r\nSikkim and Others have prayed for an appropriate writ, direction or order <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">striking down Section 10(26AAA) of the Income Tax Act, 1961\r\n(hereinafter referred to as the “Act, 1961”), more particularly, the\r\ndefinition of “Sikkimese” in Section 10 (26AAA) to the extent it excludes\r\nIndians who have settled in Sikkim prior to the merger of Sikkim with\r\nIndia on 26.04.1975. The petitioners have also prayed for an\r\nappropriate writ, order or direction striking down the Proviso to Section\r\n10(26AAA) of the Act, 1961, insofar as it excludes from the exempted\r\ncategory, “Sikkimese women” who marries a non-Sikkimese after\r\n01.04.2008.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. It is the case on behalf of the respective writ petitioners that by\r\nexcluding the Indians from the definition of Sikkimese, the exemption\r\ngranted under Section 10(26AAA) of the Act 1961, is not available to the\r\nIndian Settlers resulting in discrimination. There is no valid ground for\r\ndiscriminating against this section of the residents of Sikkim alone.\r\nTherefore, it is the case on behalf of the writ petitioners that exclusion of\r\nIndians who have settled in Sikkim prior to the merger of Sikkim with\r\nIndia on 26.04.1975 and consequently not granting the exemption\r\ngranted under Section 10(26AAA) of the Act, 1961 to the class of\r\nIndians, who have settled in Sikkim prior to the merger of Sikkim with\r\nIndia on 26.04.1975 is arbitrary, discriminatory and the differentia do not\r\nhave a rational nexus to the object sought to be achieved by the Statute <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in question. It is also the case on behalf of the writ petitioners in Writ\r\nPetition No. 59 of 2013 that Proviso to Section 10(26AAA), insofar as it\r\nexcludes from the exempted category, “Sikkimese women” who marries\r\na non-Sikkimese after 01.04.2008, is discriminatory and violative of\r\nArticles 14, 15 and 21 of the Constitution of India as the exclusion is\r\nbased on gender.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4.20 As observed hereinabove, as per Proviso to Section 10(26AAA) “a\r\nSikkimese women who marries a non-Sikkimese after 01.04.2008” is\r\nexcluded for getting the benefit of exemption under Section 10(26AAA).\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Feeling aggrieved and dissatisfied with the definition of\r\n“Sikkimese” in Section 10(26AAA) to the extent it excludes Indians\r\n(having Indian citizenship), who have settled in Sikkim prior to the\r\nmerger of Sikkim with India on 26.04.1975 and thereby not granting the\r\nbenefit of exemption under Section 10(26AAA) of the Income Tax Act to\r\nsuch Indians and being aggrieved by the Proviso to Section 10(26AAA),\r\ninsofar as, it excludes from the exempted category “a Sikkimese woman,\r\nwho marries a non-Sikkimese after 01.04.2008”, the present writ <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioners have prayed to strike down Section 10(26AAA) to the extent it\r\nexcludes Indians, who have settled in Sikkim prior to the merger of\r\nSikkim with India on 26.04.1975 and insofar as it excludes from the\r\nexempted category “a Sikkimese woman, who marries a non-Sikkimese\r\nafter 01.4.2008, being arbitrary, discriminatory and violative of Article 14\r\nof the Constitution of India.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. The challenge in the present petitions under Article 32 of the\r\nConstitution of India is :-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(i) The definition of “Sikkimese” in Section 10(26AAA) to the\r\nextent it excludes the Indians, who have settled in Sikkim\r\nprior to the merger of Sikkim with India on 26.04.1975; and</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(ii) Proviso to Section 10(26AAA) insofar as it excludes from the\r\nexempted category “a Sikkimese woman, who marries a\r\nnon-Sikkimese after 01.04.2008”<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13.4 In the present case, as observed hereinabove, the exclusion has\r\nno nexus with the object and purpose of enacting Section 10(26AAA) of\r\nthe Income Tax Act to be achieved. No reasonable intelligible differentia has been shown and therefore, the same can be termed as arbitrary. As\r\nobserved and held by this Court in the case of Shayara Bano Vs. Union\r\nof India, (2017) 9 SCC 1, in India, arbitrariness is not a separate ground\r\nsince it will come within the embargo of Article 14 of the Constitution.\r\nTherefore, any provision, which is arbitrary, discriminatory and violative\r\nof Article 14 of the Constitution of India and any classification which is\r\nviolative of Article 14 of the Constitution of India can be struck down.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. In view of the above and for the reasons stated above, we are of\r\nthe firm opinion that Section 10(26AAA) to the extent it excludes the Old\r\nIndian settlers, who have settled in Sikkim prior to the merger of Sikkim\r\nwith India on 26.04.1975, but whose names are not recorded as “Sikkim\r\nSubjects”, from the definition of “Sikkimese” is ultra vires, being arbitrary,\r\ndiscriminatory and violative of Article 14 of the Constitution of India. The\r\ndefinition of “Sikkimese” in Section 10(26AAA) of the Income Tax Act\r\nshall also include all Indians, who have permanently settled in Sikkim\r\nprior to the merger of Sikkim with India on 26.04.1975 irrespective of the\r\nfact that whether their names have been recorded in the register\r\nmaintained under the Sikkim Subjects Regulations, 1961 or not.\r\nTherefore, it is held that the “Sikkimese” like the petitioners, who are old\r\nIndian settlers and who have settled in Sikkim prior to the merger of\r\nSikkim with India on 26.04.1975 shall also be entitled to the exemption\r\nunder Section 10(26AAA) of the Income Tax Act, 1961. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. Therefore, Proviso to Section 10(26AAA) inasmuch as it excludes\r\nfrom the provision of exemption a Sikkimese woman merely because\r\nshe marries a non-Sikkimese after 01.04.2008 is totally discriminatory\r\nand violative of Articles 14, 15 and 21 of the Constitution of India, which\r\nrequires to be struck down. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. In view of the above and for the reasons stated above, both these\r\npetitions succeed. The exclusion of Old Indian settlers, who have\r\npermanently settled in Sikkim prior to merger of Sikkim with India on\r\n26.04.1975 from the definition of “Sikkimese” in Section 10(26AAA) is\r\nhereby held to be ultra vires to Article 14 of the Constitution of India and\r\nis hereby struck down. It is held that all Indians/old Indian settlers, who\r\nhave permanently settled in Sikkim prior to the merger of Sikkim with\r\nIndia on 26.04.1975, irrespective of whether his/her name is recorded in\r\nthe register maintained under the Sikkim Subjects Regulations, 1961\r\nread with Sikkim Subject Rules, 1961 or not, are entitled to the\r\nexemption under Section 10(26AAA) of the Income Tax Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n17.1 Proviso to Section 10(26AAA) insofar as it excludes from the\r\nexempted category, “a Sikkimese woman, who marries a non-Sikkimese\r\nafter 01.04.2008” is hereby struck down being ultra vires to Articles 14,\r\n15 and 21 of the Constitution of India.\r\nBoth these writ petitions are accordingly allowed. However, in the\r\nfacts and circumstances of the case, there shall be no order as to costs<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>I have perused the judgment and order proposed by His Lordship\r\nM.R. Shah J. as well as the conclusions reached by him. However, I\r\nwould like to render my separate opinion on the issues raised in these\r\nwrit petitions revolving around the definition of “Sikkimese” appended\r\nas an Explanation to Section 10 (26AAA) of the Income Tax Act, 1961\r\n(hereinafter referred to as ‘I.T. Act, 1961’) as well as on the vires of the\r\nproviso concerning Sikkimese women assailed in these writ petitions.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In my view, persons such as the petitioners and similarly\r\nsituated persons are not entitled to the exemption under the\r\nExplanation as it now stands. In the circumstances, in order to\r\nremove the discrimination, certain observations have been made\r\nand directions have been issued by me to the Union of India on\r\nthe basis of reasons assigned during the course of my judgment.\r\nIf those directions are complied with, the discrimination would\r\nbe removed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) I agree with the conclusion reached by M.R. Shah, J. to\r\nthe effect that the proviso in Section 10 (26AAA) of the I.T. Act,<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1961 is arbitrary, discriminatory and violative of Articles 14 and\r\n15 of the Constitution of India. I have assigned additional\r\nreasons and dealt with the said aspect of the matter in greater\r\ndetail through the course of my judgment and order.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>71. On an analysis of the Explanation, it would emerge that the\r\nRegister of Sikkim Subjects is the basis for granting an exemption\r\nfrom payment of income tax under the I.T. Act, 1961 to a Sikkimese.\r\nTherefore, the Government of India has extended opportunities for the\r\nnames of individuals to be recorded in the Register of Sikkim Subjects\r\neven after the merger of Sikkim as a State with India on 26th April,\r\n1975, by issuance of Government Orders dated 7th August, 1990 and\r\n8\r\nth April, 1991. Further, names of individuals which do not appear in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Register of Sikkim Subjects but it is established beyond doubt that\r\nthe names of such individual’s father or husband or paternal\r\ngrandfather or brother from the same father have been recorded in\r\nthat Register, could also be included in the said Register. Hence, even\r\nas of now, if any individual’s name is not entered in the Register, such\r\nindividual’s name could be entered into the Register by virtue of clause\r\n(iii) of the Explanation to Section 10 (26AAA) of the I.T. Act, 1961. The\r\nobject of providing clause (iii) of the Explanation, which is in the\r\nnature of an omnibus clause, is to extend the benefit of the exemption\r\nunder Section 10 (26AAA) of the I.T. Act, 1961 to all Sikkimese as per\r\nthe conditions mentioned therein by providing individuals whose\r\nnames do not appear in the Register, an opportunity of getting their\r\nnames registered in the said Register so as to avail the benefit of\r\nexemption from payment of income tax as per the aforesaid provision.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>73. However, in my view, the Explanation restricts the exemption\r\nonly to those Sikkimese individuals who fall within the three clauses of\r\nthe Explanation, as the object and purpose of the exemption is only to\r\nexempt the settlers in Sikkim or persons domiciled in Sikkim in terms\r\nof the 1961 Regulation or the Government Orders referred to above.\r\nEven though the 1961 Regulation has been repealed, nevertheless, the\r\nRegister of Sikkim Subjects which is maintained under the said\r\nRegulation, which had acquired a sanctity, has been the basis for\r\ngrant of an exemption and particularly in the form of clause (iii) of the\r\nExplanation to Section 10(26AAA) of the I.T. Act, 1961. This would\r\nimply that all those individuals who fall outside the scope and ambit of\r\nthe Explanation would not be granted the exemption. Then, the\r\nquestions of discrimination against persons such as the petitioners\r\nand others similarly situated would arise.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>76. In view of the above interpretation, in my view, the Explanation\r\nhas to be saved from being in violation of Articles 14 or 15 of the\r\nConstitution of India as there is rationale in the three clauses of the\r\nExplanation which is a reasonable classification which has a nexus to\r\nthe object sought to be achieved, which is to grant of exemption from <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">payment of income tax only to those individuals who would qualify as\r\n‘Sikkimese’ in terms of the Explanation to clause (26AAA) of Section 10\r\nof the I.T. Act, 1961. Thus, any individual not falling within the said\r\nclause would not be entitled to the said exemption. This would\r\nhowever be discriminatory insofar as those settlers in Sikkim are\r\nconcerned who have been domiciled in Sikkim subsequent to\r\npromulgation of 1961 Regulation and till 26th April, 1975 when Sikkim\r\nmerged with India. Such individuals are old settlers who have become\r\ncitizens of India from 26th April, 1975 but who were domiciled in\r\nSikkim prior to the said date. In my view, they are also entitled to the\r\nexemption under Section 10 (26AAA). Hence, directions in that regard\r\nhave to be issued to fill the Legislative vacuum and amendment to the\r\nExplanation is necessary. However, those individuals who have been\r\ndomiciled in Sikkim subsequent to 26th April, 1975 shall not be\r\nentitled to the benefit of exemption from payment of income tax. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>79. In the result, the writ petitions are disposed of in the following\r\nterms:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\ni) That the benefit of income-tax exemption presently is restricted\r\nonly to those Sikkimese who fall within the three clauses of the\r\nExplanation to Section 10(26AAA) of the I.T. Act, 1961, or those\r\npersons domiciled in Sikkim, or are Sikkimese as covered under\r\nthe 1961 Regulation.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\nii) In terms of the Sikkim (Citizenship) Order, 1975 as amended by\r\nthe Sikkim (Citizenship) Amendment Order, 1989, issued by the\r\nGovernment of India any person who was a Sikkim Subject under\r\nthe 1961 Regulation was to be deemed to be a citizen of India\r\nw.e.f. 26th April, 1975. Conversely, it is held that all citizens of\r\nIndia, having a domicile in Sikkim on the day it merged with India\r\ni.e. 26th April, 1975 must be covered under the Explanation in\r\norder to avail the benefit of the exemption under Section\r\n10(26AAA) of the I.T. Act, 1961. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>iii) The Union of India shall make an amendment to Explanation to\r\nSection 10 (26AAA) of I.T. Act, 1961, so as to suitably include a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">clause to extend the exemption from payment of income tax to all\r\nIndian citizens domiciled in Sikkim on or before 26th April, 1975.\r\nThe reason for such a direction is to save the explanation from\r\nunconstitutionality and to ensure parity in the facts and\r\ncircumstances of the case.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>iv) Till such amendment is made by the Parliament to the\r\nExplanation to Section 10 (26AAA) of I.T. Act, 1961, any\r\nindividual whose name does not appear in the Register of Sikkim\r\nSubjects but it is established that such individual was domiciled\r\nin Sikkim on or before 26th April, 1975, shall be entitled to the\r\nbenefit of exemption.\r\n This direction is being issued in exercise of powers under\r\nArticle 142 of the Constitution so as to eliminate discrimination\r\nand disparity in respect of the aforesaid category of Sikkimese,\r\nwho subsequently have become citizens of India w.e.f. 26th April,\r\n1975 and to save the Explanation from being rendered\r\nunconstitutional vis-à-vis such individuals who form a small\r\npercentage of Sikkimese.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">v) Proviso to Section 10 (26AAA), insofar as it excludes from\r\nthe exempted category, “a Sikkimese woman who marries a\r\nnon-Sikkimese man after 1st April, 2008” is hereby struck\r\ndown as being ultra vires Articles 14, 15 and 21 of the\r\nConstitution of India.”</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Parties to bear their respective costs. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2eb9e79607f44978d31e3fe90bdca5ab.jpeg', 'f1ccdcfbd9eafd74e3a7a26b696fdc6f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-16', 1, '', '', '2023-01-15 18:54:23', '2023-01-16 07:54:45'),
(2568, 'QOqrhNWkUa9ikDmHccpDjeZul', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Manik Majumder and Others vs Dipak Kumar Saha (Dead) through Lrs. & Others. Separate Judgments of Justice MR Shah and Justice BV Nagarathna ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Manik Majumder and others Vs Dipak Kumar Saha (Dead) through LRS and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2965 of 2022 decided on 13 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts leading to the present appeal in a nutshell are as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\nThat one Braja Mohan Dey was the owner and in possession of\r\n‘Schedule A’ property. He was alleged to have taken a loan of Rs.\r\n10,000/- from his tenant, namely, Dhirendra Chandra Saha, original\r\nplaintiff No.2. The original owner, Braja Mohan Dey went to East\r\nPakistan. It was alleged that he had executed a Power of Attorney\r\n(PoA) in East Pakistan, ostensibly in favour of original plaintiff No.2 to\r\nenable repayment of the alleged loan amount by sale of the subject land\r\nto himself (original plaintiff No.2) as his PoA holder. That original plaintiff\r\nNo.2, on the basis of the alleged loan amount and PoA alleged to have\r\nbeen executed by the original owner, executed in his favour sale deed\r\ndated 3.9.1968 as PoA holder of the original owner. Thereafter original\r\nplaintiff No.2, by virtue of the said PoA, transferred ‘Schedule A’ property\r\nto his wife Gita Rani Saha (original plaintiff No.1) (now deceased) vide\r\nsale deed dated 29.09.1968, allegedly for repayment of a sum of Rs.\r\n20,000/- taken by him from his wife, out of which a sum of Rs. 10,000/-\r\nwas alleged to have been handed over to the original owner Braja\r\nMohan Dey.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.1 That original plaintiff No.2 allegedly constructed a godown at the\r\nrear end of the grocery shop in another part of ‘Schedule A’ property\r\n(‘Schedule C’ property). It was the case on behalf of the plaintiffs that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">one Sarat Chandra Majumdar (original defendant No.1) tried to\r\ndispossess the plaintiffs from the said ‘Schedule C’ property. However,\r\non the other hand, it was the case on behalf of the defendants that their\r\npredecessor-in-interest held out that Sarat Chandra Majumdar was in\r\npossession of the suit land for more than thirty years and was running a\r\nbusiness from the said property, while denying that the plaintiffs had\r\nacquired any right, title or interest as claimed over the suit land. The\r\noriginal defendants also claimed to be in peaceful possession of the\r\nproperty for over forty years and it was their case that they were paying\r\nthe municipal taxes and land revenue and other statutory dues. The\r\nplaintiffs alleged that the defendants had started a pucca construction on\r\n‘Schedule C’ property and forcibly dispossessed them from the said\r\nproperty. Therefore, the plaintiffs filed a Civil Suit being T.S. No.\r\n201/1985 before the learned trial Court for a declaration of title over the\r\nsuit land and recovery of khas possession from the defendants\r\n(appellants herein)</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. I have heard learned counsel for the respective parties at length.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>At the outset, it is required to be noted that in the present case, the\r\nplaintiffs instituted the suit for declaration of title, to which they were\r\nlaying claim by virtue of the two sale deeds, one dated 3.9.1968\r\n(executed by plaintiff No.2 in his favour on the basis of the alleged PoA\r\nalleged to have been executed by the original land owner – Braja Mohan\r\nDey) and the second sale deed dated 29.09.1968 (executed by plaintiff\r\nNo.2 in favour of plaintiff No.1 as a PoA holder of the original owner).\r\nBoth, the learned trial Court as well as the first appellate Court held that\r\nthe plaintiffs have failed to prove their title as the PoA on the basis of\r\nwhich plaintiff No.2 claimed the right/title is not forthcoming and/or not\r\nproduced before the Court. Therefore, both, the learned trial Court as\r\nwell as the first appellate Court held that the requirement of Section\r\n33(1)(c) of the Registration Act has not been satisfied. However, by\r\ndrawing the statutory presumption under Section 60 of the Registration\r\nAct, the High Court has believed the sale deeds dated 3.9.1968 and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">29.09.1968 and has held that the plaintiffs have proved their title.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. In view of the above and for the reasons stated above and as the\r\nPoA is not produced on record; the executant of the PoA in favour of\r\nplaintiff No.2 has not stepped into the witness box; there is a noncompliance of Section 33(1)(c) of the Registration Act; and the plaintiff\r\nno.2 is claiming title on the basis of the PoA alleged to have been\r\nexecuted by the original owner which is not forthcoming and that plaintiff\r\nno.1 is claiming the title on the basis of the sale deed dated 29.09.1968\r\nexecuted by plaintiff No.2 as a PoA holder of the original owner which is\r\nnot forthcoming, I am of the opinion that the learned trial Court was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">justified and right in dismissing the suit and refusing to pass a decree for\r\na declaration of title in favour of the plaintiffs. The same was rightly\r\nconfirmed by the first appellate Court. The High Court has committed a\r\nserious error in decreeing the suit. The impugned judgment and order of\r\nthe High Court is unsustainable both, on law as well as on facts.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. In view of the above and for the reasons stated above, the present\r\nAppeal Succeeds and is Allowed. The impugned judgment and order\r\npassed by the High Court decreeing the suit is hereby quashed and set\r\naside and the judgment and decree passed by the trial Court, confirmed\r\nby the first appellate Court, is hereby restored. However, in the facts and\r\ncircumstances of the case, there shall be no order as to costs.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>I have had the advantage of reading the judgment\r\nproposed by His Lordship M.R. Shah, J. However, I am unable to\r\nagree with the reasoning as well as the result arrived at by His\r\nLordship. Hence, my separate judgment.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. Having heard the learned counsel for the respective\r\nparties, the following points would arise for consideration:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(i) Whether the statutory requirements of Section 33 (1) (c) of\r\nthe Registration Act, 1908 had been complied with in the instant\r\ncase while executing the power of attorney dated 01st August, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1968?</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n(ii) Whether non-production of the document of power of\r\nattorney before the Trial Court and the first appellate court\r\nwould be fatal to the case of the plaintiffs?</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n(iii) Whether the plaintiffs have proved the sale deeds dated\r\n03rd September, 1968 and 29th October, 1968?\r\n(iv) What order?</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In the instant case, what is sought to be proved is title by\r\nthe sale deed and not the power of attorney as it is the sale deed\r\nwhich conveys title and the sale deed has been executed in\r\naccordance with the provisions of Registration Act, 1908, and\r\nproved in accordance with Section 67 of Evidence Act. It cannot\r\nbe held that the sale made on behalf of the seller (original owner\r\nof the suit land) to the buyer through the power of attorney is\r\nvitiated as the power of attorney was not produced before the\r\nCourt. This is because even in the absence of the production of\r\nthe power of attorney, the contents of the sale deed and the\r\nexecution of the power of attorney as well as the sale deed have\r\nbeen established by proving the sale deed in accordance with the\r\nlaw</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. Section 67 of the Evidence Act deals with proof of\r\ndocuments such as a sale deed as in the instant case. The proof\r\nof signature or the handwriting of the executant on a document <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is sufficient to prove a document which is the sale deed dated\r\n29th October, 1968, in the instant case. There is no dispute that\r\nthe said sale deed is not signed by plaintiff No.2 or that it is not\r\nhis signature or that he is not the executor of the document. The\r\nadmission of the signature of the said document by plaintiff No.2\r\nis proof of the signature on the document which is sufficient for\r\nproof of the document of sale deed of sale in favour of plaintiff\r\nNo.1. Further, the same is a registered sale deed which is a\r\ndocument conveying title. Hence, the plaintiff No.1 has acquired\r\ntitle from plaintiff No.2 and from the original owner of the land\r\nin question. Therefore, under the circumstances, plaintiff No.1\r\nhas proved her right, title and interest in the land in question.\r\nThere is no contra evidence produced by the defendants so as to\r\ndefeat the validity of the sale deeds. The said documents speak\r\nfor themselves. Therefore, there is no substance in the\r\ncontentions of the appellants arising under the provisions of the\r\nRegistration Act, 1908. Thus, plaintiff No.1 has acquired title to\r\nthe land in question. Further, when a sale deed is executed on\r\nthe strength of deed of power of attorney, the non-production of\r\nthe deed of power of attorney in the suit is not fatal to the case\r\nof the plaintiff.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. The appellants-defendants herein contended that that\r\nthere may be a statutory presumption as per Section 60 of the\r\nRegistration Act, 1908, only where all other requirements of\r\nexecution of sale deed are complied with and there is no doubt\r\nas to the genuineness of the power of attorney. In the present\r\ncase, the sale deed dated 03rd September, 1968 was executed on\r\nthe strength of the power of attorney which was executed in\r\nconformity with Section 33 (1) (c) of the Registration Act, 1908\r\nbecause the power of attorney has been duly executed before the\r\n1\r\nst Class Magistrate, Komilla, East Pakistan as noted from the\r\ntwo sale deeds. There is no contra evidence produced by\r\ndefendants in that regard. Since the requirements of execution\r\nof a sale deed are duly complied with, and there is no reason to\r\ndoubt the recitals of the sale deed which has been proved in\r\naccordance with law, it would follow that the statutory\r\npresumption under Section 60 of the Registration Act could be\r\ninvoked in the instant case.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. In short, it has been authoritatively laid down by this\r\nCourt that a registered document carries with it, by virtue of it\r\nbeing registered, the presumption as to the authority of the\r\nperson executing it. In the present case, the Trial Court and the\r\nFirst Appellate Court failed to treat the endorsement made by\r\nthe District Sub-Registrar on the body of the sale deed, as\r\nevidence in respect of the authority of Plaintiff No. 2 to execute <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the sale deed. This is to be considered in light of the fact that at\r\nno point of time did the original owner namely, Braja Mohan Dey\r\ndispute the execution of power of attorney in favour of Plaintiff\r\nNo. 2.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. In short, there is no reason to disbelieve the recitals\r\ncontained in the registered sale deed dated 03rd September, 1968\r\nmerely on the ground that the document conferring power of\r\nattorney in favour of plaintiff no. 2 was not produced before the\r\nTrial Court.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In the instant case, the High Court was therefore right in\r\nholding that when a document has been duly registered, there is\r\na presumption of correctness and it can be rebutted only by\r\nstrong evidence to the contrary. But the defendants have not led\r\nany evidence in order to rebut the presumption as might be\r\ndrawn on the basis of the said endorsement on the body of the\r\nsale deed No.1010394, dated 03.09.1968 accepting original\r\nplaintiff no.2 as the attorney of the original owner, Braja Mohan\r\nDey. The same is a vital piece of evidence which has been\r\nignored by the Trial Court as well as the first Appellate Court.\r\nThe High Court is further right in holding that original plaintiff\r\nno.2 was duly nominated and constituted as the attorney of\r\nBraja Mohan Dey (original owner of the suit land) and on the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">strength of the said power of attorney, plaintiff No.2 transferred\r\nland in favour of himself. As the absolute owner, plaintiff No.2\r\nsold the said land to plaintiff No.1. Thus, plaintiff no.1 had every\r\nright to recover the said suit land, description of which has been\r\nprovided in the Schedule (C) of the plaint by removing and\r\ndemolishing all obstructions from the defendants. The High\r\nCourt was therefore right in decreeing the suit.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Consequently, the present appeal is dismissed. The\r\nimpugned judgment of the High Court of Tripura in Regular\r\nSecond Appeal No. 01 of 2005, by which, the judgment and\r\ndecree dated 26th August, 2004 passed in Title Appeal No. 02 of\r\n1996 by the First Appellate Court in Title Appeal No. 02 of 1996\r\naffirming the dismissal of Title Suit No. 201 of 1985 by the Asst.\r\nDistrict Judge No.1, Tripura has been set-aside, is affirmed.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>31. Parties are directed to bear their respective costs.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a1208f10db9f45a7d04b1b61740e4ae1.jpeg', 'b055d91aff1c7dc3481f4d2d923b0b6e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-16', 1, '', '', '2023-01-15 19:08:34', '2023-01-16 09:55:17');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2569, '9e80xigdYtzrABXaQC2A6qH42', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Encroachers of land cannot seek declaration that the acquisition is lapsed under Section 24(2) of the 2013 land acquisition Act. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State of Haryana and others Vs Sushila and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 9205 of 2022 decided on 13 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice S. Ravindra Bhat.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 05.12.2017 passed by the High Court of Punjab and Haryana at Chandigarh in CWP No.15720 of 2014 by which the High Court has allowed the said writ petition and has declared that the acquisition with respect to the land in question is deemed to have lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as ‘the Act 2013’), the State of Haryana has preferred the present appeal.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. At the outset, it is required to be noted that before the High Court it was the case on behalf of the private respondents herein ­ original writ petitioners that the compensation with respect to the land in question has not been paid to them and even the possession of the lands in question is with them and therefore, in view of Section 24(2) of the Act, 2013 the acquisition with respect to the land in question is deemed to have lapsed as neither the possession has been taken over nor the compensation for the acquired land has been paid.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. From the aforesaid it can be seen that it was the specific case on behalf of the appellants that the possession of the land in question was taken over and handed over to the beneficiary on 04.08.2006. It was also the case on behalf of the appellant that the petitioners are encroachers in the acquired land and compensation of the acquired land was not paid to them because they were not co­owners at the time of award. The aforesaid has not at all been considered by the High Court while passing the impugned judgment and order. As the possession was taken over by the acquiring body and was handed over to the beneficiary, any possession by the petitioners thereafter can be said to be encroachment and the encroachers cannot be permitted to take the benefit of the provisions of Section 24(2) of the Act, 2013 and pray that as now they are in possession, may be as encroachers, they are entitled to relief under Section 24(2) of the Act, 2013. It would be giving a premium to the illegality and the encroachers which cannot be the intention of the legislature.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4.1 Applying the law laid down by this Court in the aforesaid two decisions, the writ petition at the instance of the private respondents herein – original writ petitioners being subsequent purchasers ought not to have been entertained by the High Court challenging the acquisition proceedings and/or praying for lapse of the acquisition under Section 24(2) of the Act, 2013. Under the circumstances also the impugned judgment and order passed by the High Court is unsustainable.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. In view of the above and for the reason stated above the present appeal succeeds. The impugned judgment and order passed by the High Court passed in Writ Petition (C) No.27 of 2015 is hereby quashed and set aside. The original writ petition filed by the private respondents – original writ petitioners, stands dismissed accordingly.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Present appeal is accordingly allowed. No costs. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '75f8911b528bc0d5bca9dffbe76eb182.jpeg', '20c33538ff9fe9323bb4cd3acceb0aad.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-17', 1, '', '', '2023-01-15 20:10:51', '2023-01-17 06:56:18'),
(2570, 'Y95iRsZtEiXrkyJaI21c7rkAj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When a partner commits criminal breach of trust in his individual capacity, the partnership firm need not be made party in the criminal proceedings. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>D.E. Joshua Vs Simon Pullokaran.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 607 of 2017 decided on 3 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Natarajan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This petition is filed by the petitioner-accused under\r\nSection 482 of Cr.P.C. for quashing criminal proceedings in\r\nC.C.No.23015/2000 registered based upon PC No.47/2000\r\npending on the file of JMFC (II Court), Mangaluru, for the\r\noffence punishable under Section 406 of IPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The case of respondent-complainant is that the\r\nrespondent filed a private complaint under Section 190 of\r\nCr.P.C. read with Sections 406 and 420 of IPC alleging\r\nthat the petitioner-accused and the respondent are the\r\npartners in \'Galaxy Engineers\' situated at Mangaluru and a\r\npartnership deed was executed in accordance with the\r\nIndian Partnership Act, 1932. The complainant and the\r\naccused were appointed as the Managing partners of the\r\nfirm empowering them individually to represent the firm\r\nbefore all the authorities. The firm was carrying on the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">business of Mangaluru, Mumbai and other places. The\r\naccused was entrusted to look after the Project\r\nManagement Service of M/s. Aquatic Maxcon Private\r\nLimited, Sydney, Australia, for Bombay Municipal\r\nCorporation. The firm opened a current account in Canara\r\nBank, Andheri (West) Branch, Mumbai. During the\r\nbusiness of firm, on 07.02.1998, a cheque bearing\r\nNo.517338 was issued in favour of Canara Bank for the\r\npurpose of obtaining a D.D. for Rs.50,000/- favouring the\r\nfirm to be encashed at Mangaluru by the complainant. The\r\nsaid amount was withdrawn by the accused. The DD was\r\nnot taken in the name of branch at Mangaluru and the\r\naccused has misappropriated the amount by cheating the\r\ncomplainant. Hence, a private complaint came to be\r\nlodged. After recording sworn statement, the trial Court\r\ntook cognizance against the accused for the offences\r\npunishable under Sections 420 and 406 IPC.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. Of course, on the earlier point of time, the ground\r\nof jurisdiction was not raised by the petitioner-accused,\r\nhowever, the respondent\'s counsel brought to the notice of\r\nthis Court that DD required to be taken favouring the firm\r\nsituated at Mangaluru. The main branch of business is at\r\nMangaluru. The current account is opened at Mangaluru\r\nonly for the purpose of transaction by the accused for\r\nbusiness purpose. Therefore, considering the same, when\r\nthe DD was taken in favour of the firm to be encashed at\r\nMangaluru by the complainant, the Magistrate at\r\nMangaluru is having jurisdiction to try the case.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 8. That apart, in respect of the offence punishable\r\nunder Section 420 of IPC, the ground is already urged by\r\nthe petitioner accused before the Coordinate Bench in\r\nCriminal Petition No.1960/2001, wherein the Coordinate\r\nBench has considered the case in detail and allowed the\r\npetition in part and set aside taking cognizance of the\r\noffence under Section 420 of IPC and also directed the trial <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court to continue to take cognizance for the offence\r\npunishable under Section 406 of IPC. Therefore, the\r\ncontention of learned Senior Counsel for the petitioner that\r\nthe petition is maintainable even for the second time for\r\nhaving urged some new grounds, is not sustainable.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 9. As regards the terms of partnership deed that in\r\nrespect of any dispute between the partners of the firm,\r\nthe recourse available is arbitration. The fact remains that\r\nthe is dispute is between the two partners and the accused\r\nbeing the partner, has misappropriated the amount from\r\nthe firm. Therefore, the firm cannot be made as a party as\r\nthe accused has committed the offence in individual\r\ncapacity. Therefore, the contention of the learned Senior\r\ncounsel that the firm has to be made as party, cannot be\r\naccepted.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Accordingly, the criminal petition is dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1d5893bf36b859600a17509fd2b8e9b8.JPG', '3138a1874a117e6aac87017282b49561.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-17', 1, '', '', '2023-01-16 13:46:37', '2023-01-17 09:09:19'),
(2571, 'wOE9XpoTUaBLinXLmrJ3uE1q3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prosecution for obtaining false caste certificate can be launched only if the certificate is cancelled by the Competent Authority. Magistrate cannot decide the validity of the Caste certificate. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>S. Neelakantappa Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 6915 of 2016 decided on 4 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Petitioner has been charge sheeted for the offence\r\npunishable under Section 420 of IPC alleging that, though the\r\npetitioner belongs to Weavers Community by furnishing false\r\ninformation with the Thasildar, Bellary Taluk, obtained Caste\r\nCertificate that, he belongs to Machala Community which is\r\nclassified as Scheduled Caste and thereby managed to secure\r\njob in BEML.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. It is undisputed that the Caste Certificate issued in\r\nfavour of the petitioner certifying that he belongs to Machala\r\nCommunity has not been cancelled by the Competent Authority\r\nunder the provisions of the Karnataka Schedule Castes,\r\nScheduled Tribes and Other Backward Classes (Reservation of\r\nAppointment etc.) Rules, 1992 (for short \"Rules, 1992\"). The\r\nCo-ordinate Bench of this Court in W.P.No.11704/2013 with\r\nreference of Rule 7(4) of Rules 1992, held that notice issued by\r\nthe Directorate of Civil Rights Enforcement cell on its own in the\r\nabsence of any enquiry or recommendations made by the\r\nDistrict Caste Verification Committee is impermissible and\r\naccordingly, quashed the notice impugned therein.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 8. Admittedly, the Caste Certificate issued in favour of\r\nthe petitioner-accused that he belongs to Machala community is\r\nstill in subsistence and is not cancelled by the Competent\r\nAuthority under the Rules, 1992.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 9. Rule 7(2) of Rules, 1992 deals with validation of the\r\nCaste Certificate by the Caste Verification Committee. Rule 7(4)\r\nof the Rules, 1992 specifies that if the Committee after enquiry <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">finds that the claim is doubtful, and it is not in a position to\r\ncome to a conclusion, it shall refer the matter to the Directorate\r\nof Civil Rights Enforcement for detailed investigation and report.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 10. Rule 7(4) of the Rules, 1992 specifies that the Caste\r\nVerification Committee after rejecting the claim of the applicant\r\nfor grant of Validity Certificate shall send a copy thereof and\r\nthere upon the Directorate of Civil Rights Enforcement shall take\r\nsteps to prosecute such claimant who has obtained a false Caste\r\nCertificate.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 11. A reading of the aforesaid provisions clearly indicates\r\nthat the petitioner can be prosecuted for the offence punishable\r\nunder Section 420 only upon an order passed by the Caste\r\nVerification Committee rejecting the claim of the petitioner for\r\ngrant of Validity Certificate and there upon the Directorate of the\r\nCivil Rights Enforcement shall take steps to prosecute the\r\npetitioner.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">12. The Caste Certificate issued in favour of the\r\npetitioner having not been cancelled under the provision of the\r\nRules, 1992, cognizance taken by the learned Magistrate on the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">basis of the final report is impermissible, since, the learned\r\nMagistrate cannot adjudicate the validity of the Caste Certificate\r\nand its only the Caste Verification Committee under Rules 1992,\r\ncan adjudicate whether the petitioner has obtained the Caste\r\nCertificate fraudulently that he belongs to Machala Community\r\nthough he belongs to Weavers Community which is not a\r\nScheduled Caste Community.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 13. The Co-ordinate Bench of this Court with reference to\r\nthe Government Order dated 11.03.2002, wherein, it is specified\r\nthat the benefits of reservation obtained by the persons in\r\neducational and employment based on the Caste Certificate\r\nissued by the Competent Authorities as ST and which has\r\nbecome final may also be not disturbed, accordingly, has\r\nquashed the proceedings impugned therein.\r\n 14. In view of the above, the continuation of the criminal\r\nproceedings against the petitioner-accused will an abuse of\r\nprocess of law.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> i) The Criminal Petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6e48dc59467d6d88034baddc7ed2691a.jpeg', '562e5ca080e3bec9575b10f01530af8d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-17', 1, '', '', '2023-01-16 13:55:46', '2023-01-17 03:21:50'),
(2573, 'lKXdlEYoeI0OdVwlEi5zlKT0v', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Imposition of additional special road tax on transport vehicle used without a valid permit is not a penalty but regulatory in nature within the competence of the HP State Legislature. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State of Himachal Pradesh and others Vs Geol Bus Service Kullu Ect.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5534-5594 of 2011 decided on 13 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sanjay Kishan Kaul, Justice Abhay S. Oka and Justice Vikram Nath.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The respondent and several other similarly situate\r\npublic transport operators challenged the validity of\r\nSection 3-A, Section 3-C, Section 4-A, Section 5-A along\r\nwith Schedule-III under Section 3-A introduced vide the\r\nHimachal Pradesh Motor Vehicles Taxation (Amendment)\r\nAct, 19991 to be held ultra vires the Constitution of India\r\nand further the notifications dated 18.12.1999,\r\n23.12.1999, 31.12.1999, 06.01.2000, 12.02.2000 and\r\n01.04.2000 be quashed and set aside. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">5. The above provisions, validity of which was sought to\r\nbe declared as ultra vires, were introduced vide HPMVT(A)\r\nAct 1999 as also vide HPMVT(A) Act 2001. Consequent to\r\ninsertion of the said provisions, State of Himachal Pradesh\r\nissued several notifications referred to above, which were\r\nalso assailed in a large number of writ petitions. The High\r\nCourt, vide impugned judgment dated 06.07.2007, upheld\r\nthe validity of all the Sections except Section 3A (3) under\r\nchallenge as not offending either Part III or any other\r\nprovision of the Constitution of India. With respect to\r\nSection 3-A (3) it was held that in substance it imposes a\r\npenalty and as such could not be treated as regulatory or </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">compensatory tax and was, therefore, beyond the\r\nlegislative competence of the State Legislature. It, further\r\nquashed the two notifications dated 06.01.2000 and\r\n01.04.2000 being not in consonance with the scheme of\r\nthe Constitution. It also struck down the decision dated\r\n01.01.2000 based upon negotiations held on 31.12.1999\r\nrelating to special Toll Tax, as they were held to be against\r\nstatutory provisions of the Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>35. What is to be seen is whether the tax imposed will\r\nhave identifiable object and a nexus between the subject\r\nand the object of the levy. The power has been given to\r\nthe States to make its own legislations by imposing tax on\r\nmotor vehicles as also the goods being transported in\r\norder to compensate itself for the services, benefits and\r\nfacilities provided by it. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>40. In the above backdrop of the legal position, the\r\nvalidity of Section 3A(3) of the 1972 Act introduced vide\r\nAmending Act of 1999 is being discussed hereunder.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>41. Section 3 of the 1972 Act provided for levy of taxes on\r\nall motor vehicles kept or used in the State of Himachal\r\nPradesh as per the schedules appended to the said Act.\r\nInsertion of Section 3A provided for levy of special road\r\ntax. The special road tax as provided under sub-sections\r\n(1), (2) and (4) of Section 3A have been upheld by the High\r\nCourt. It is only the levy of special road tax under subsection (3) which has been struck down. Testing the\r\nprovisions of the offending section with regard to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">settled principles of interpretation of taxing statutes, it is\r\nto be ascertained on the following three aspects:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n(1) Whether it is manifestly unjust or glaringly\r\nunconstitutional;\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(2) Whether it is regulatory or compensatory in nature;\r\nand\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(3) Whether there is any repugnancy with the provisions\r\nin the Central enactment.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>45. This Court in the case of Sukhpal Singh Bal (supra)\r\nrelating to challenge to Section 10(3) of the U.P. Motor\r\nVehicles Taxation Act, 1997 where a similar provision was\r\nincorporated and even though termed as penalty, was held\r\nto be regulatory and compensatory in nature. The High\r\nCourt had struck down the said provision but this Court\r\nheld that such penalty imposed under Section 10(3) to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">protect public revenue and as a deterrent for tax evasion.\r\nIn view of the above, it cannot be said that levy of such an\r\nadditional special road tax would be said to be manifestly\r\nunjust or glaringly unconstitutional. It was, in effect, to\r\nensure payment of the chargeable taxes and use of the\r\nvehicles as per the terms of the permit.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>46. Entry 35 of List II conferred the power on the\r\nParliament as also the State Legislatures to make laws\r\nrelating to mechanically propelled vehicles of all kinds and\r\nalso to lay down the principles on which taxes on such\r\nvehicles are to be levied. The central enactment i.e. the\r\nlaw made by the Parliament has not laid down any\r\nprinciples for levy of taxes. The State Legislatures had the\r\npower to levy taxes not only under Entries 56 and 57 of\r\nList II but also to lay down the principles under Entry 35\r\nof List III. Therefore, no repugnancy of any kind could be\r\nalleged or pleaded or proved in the absence of there being <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">any central law laying down principles of levy of tax. In\r\nview of the above, no repugnancy or conflict of the State\r\nenactment with the central enactment could be sustained.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n47. The next argument of the learned amicus with respect\r\nto the 1988 Act containing Section 192A wherein violation\r\nof Section 66(1) would constitute a criminal offence\r\npunishable with sentence and also fine, as such the\r\noffending section being repugnant to the said provision,\r\ncannot be sustained. Under Section 192A a punishment\r\nof imprisonment along with fine is provided whereas under\r\nthe offending section, an additional special road tax is\r\nbeing charged for such a violation of using vehicle without\r\npermit or in contravention of the terms of the permit. The\r\noffending section was incorporated with a view to augment\r\nmore revenue in order to construct and maintain the roads\r\nof the state which uses a large chunk of its finances being\r\na state having a completely hilly terrain. The additional\r\nspecial road tax chargeable under Section 3A(3) would be </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in addition to any sentence or fine imposed under Section\r\n192A. Punishment for offence is with an object to create\r\ndeterrence and curtailing such offences as it creates a fear\r\nin the mind of offender likely to commit the offence. The\r\nsame is the object of the additional special road tax to\r\nmake it work as a deterrent from the transport operators\r\nin plying vehicles without permit and in contravention of\r\nthe terms of the permit. As such there is no repugnancy\r\nor any conflict caused by the offending provision with the\r\ncentral enactment.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">48. For all the reasons recorded above, the validity of\r\nSection 3A(3), in our opinion, has been wrongly held to be\r\nultra vires by the High Court. The tax imposed under\r\nSection 3A(3) is regulatory in character and is not a\r\npenalty</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>49. The High Court had also quashed the notifications\r\nissued by the State for levy of the taxes under Section 3A(3) holding that lumpsum taxes could not be levied on\r\ngeneral assessment and it had to be levied as per actual\r\ndefault. Levy of lumpsum tax has been upheld by a three\r\nJudge Bench of this Court in the case of State of Tamil\r\nNadu vs. M. Krishnappan and Anr. reported in (2005) 4\r\nSCC 53. We find no reason to take a different view. It may\r\nalso be noted that the learned Amicus Curiae has also not\r\nadvanced any arguments on this point.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>50. In view of the above, it would not be a futile exercise\r\nto send the matters back to the regular Bench as we have\r\nheld that said Section 3A(3) of the 1972 Act being within\r\nthe legislative competence of the State Legislature, and\r\nlumpsum tax could be levied. Nothing further remains to\r\nbe examined by the regular Bench in these appeals.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n51. We, accordingly, allow the appeals, set aside the\r\nimpugned judgment and order of the High Court and\r\nfurther dismiss the writ petitions.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>52. There shall be no order as to costs.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>53. Pending application(s), if any, are disposed of.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd1f6ae7a49f36e80241daccb952e95c4.jpeg', '8fb3f13e3a4b439df045c541705e1e20.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-17', 1, '', '', '2023-01-16 16:06:17', '2023-01-17 11:36:39'),
(2575, 'AdDi0ewnl6sXKKSWNB358BMQI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Default bail granted under Section 167(2) Cr.P.C. can be cancelled when special reasons/grounds are made out from the chargesheet and the chargesheet reveals the commission of a nonbailable crime. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State Through CBI Vs T. Gangi Reddy.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 37 of 2023 decided on 16 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order dated 16.03.2022 passed by the High Court of Andhra\r\nPradesh at Amravati in Criminal Petition No. 788 of 2022 by which the\r\nHigh Court has dismissed the said petition preferred by the appellant –\r\nCentral Bureau of Investigation (C.B.I.) filed under Section 439(2) of the\r\nCode of Criminal Procedure (Cr.P.C.), to cancel the bail that was\r\ngranted to the respondent herein – original Accused No. 1 and wherein\r\nthe High Court has held that once the respondent No. 1 – Accused No.\r\n1, was released on default bail under Section 167(2) Cr.P.C., thereafter\r\nit is not permissible to consider the case for cancellation of bail on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">merits, the Investigating Agency – C.B.I. has preferred the present\r\nappeal.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>2. While considering the issue involved in the present appeal,\r\nnamely, whether in a case where the accused is released on default bail\r\nthereafter, cancellation of the bail application can be considered on\r\nmerits, the chronological dates and events are required to be referred to,\r\nwhich are as under:-\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2.1 The deceased Shri Y.S. Vivekananda Reddy, a former M.L.A.;\r\nformer Member of Lok Sabha; former Member of A.P. Legislative\r\nCouncil; and holding other posts was found dead in his house on\r\n15.03.2019. Initially a case under Section 174 Cr.P.C. was registered by\r\nthe local police, i.e., Police Station, Pulivendula in Crime No.84 of 2019.\r\nSubsequently, a case under Section 302 read with Section 120-B of the\r\nIndian Penal Code (I.P.C.) was registered. Special Investigation Team\r\n(S.I.T.) was constituted by the State. The S.I.T. took over the\r\ninvestigation. During the course of investigation, the concerned State\r\nPolice Agency arrested the respondent herein – original Accused No. 1\r\n(A-1) on 28.03.2019 and he was remanded to judicial custody. The\r\nstatutory period of 90 days lapsed on 26.06.2019. On the very next day\r\nof lapsing of 90 days, respondent herein – original Accused No. 1 filed a\r\nbail application for default bail under Section 167(2) of the Cr.P.C. The\r\nrespondent herein was allowed the default bail by the learned JMFC, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Pulivendula on 27.06.2019. The respondent herein – original accused\r\nNo. 1 was released on bail as per the said order.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. Having heard the learned counsel appearing for the respective\r\nparties, the short question, which is posed for the consideration of this\r\nCourt is whether the bail granted under the proviso to sub-section (2) of\r\nSection 167 Cr.P.C. for failure to complete the investigation within the\r\nperiod prescribed therein can be cancelled after the presentation of a\r\nchargesheet and if the said question is answered in affirmative, then, on\r\nwhat grounds and circumstances, the bail can be cancelled?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8.1 At the outset, it is required to be noted and it cannot be disputed\r\nthat when an accused is released on default bail under proviso to subsection (2) of Section 167 Cr.P.C., he is released on furnishing the bail <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">bond by him on the failure of the investigating agency to complete the\r\ninvestigation and file the chargesheet within the stipulated time\r\nmentioned therein. The proviso to sub-section (2) of Section 167 fixes\r\nthe outer limit within which the investigation must be completed and if\r\nthe same is not completed within the period prescribed therein, the\r\naccused has a right to be released on bail if he is prepared to and does\r\nfurnish bail. Considering proviso to Section 167(2) Cr.P.C., it cannot be\r\ndisputed that a person released on bail (default bail) is deemed to be\r\nreleased under provisions of Chapter XXXIII of the Cr.P.C., which\r\nincludes Section 437 and 439 also. The object and purpose of proviso\r\nto Section 167(2) Cr.P.C. is to impress upon the need for expeditious\r\ninvestigation within the prescribed time limit and to prevent laxity in that\r\nbehalf. The object is to inculcate a sense of its urgency and on default\r\nthe Magistrate shall release the accused if he is ready and does furnish\r\nbail. Thus, it cannot be said that order of release on bail under proviso\r\nto Section 167(2) Cr.P.C. is an order on merits. An accused is released\r\non bail under proviso to Section 167(2) Cr.P.C. on the failure of the\r\nprosecuting agency. Therefore, the deeming fiction under Section\r\n167(2) Cr.P.C. cannot be interpreted to the length of converting the order\r\nof bail not on merits as if passed on merits. Keeping in view the above,\r\nthe issue involved in the present appeal is required to be considered.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. From the above, the law, which emerges is that mere filing of the\r\nchargesheet subsequent to a person is released on default bail under\r\nSection 167(2) Cr.P.C. cannot be a ground to cancel the bail of a\r\nperson, who is released on default bail. However, on filing of the\r\nchargesheet on conclusion of the investigation, if a strong case is made\r\nout and on merits, it is found that he has committed a non-bailable <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">offence/crime, on the special reasons/grounds and considering Section\r\n437(5) and Section 439(2) Cr.P.C, over and above other grounds on\r\nwhich the bail to a person, who is released on bail can be cancelled on\r\nmerits.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11. Therefore, there is no absolute bar as observed and held by the\r\nHigh Court in the impugned judgment and order that once a person is\r\nreleased on default bail under Section 167(2) Cr.P.C., his bail cannot be\r\ncancelled on merits and his bail can be cancelled on other general\r\ngrounds like tampering with the evidence/witnesses; not cooperating\r\nwith the investigating agency and/or not cooperating with the concerned\r\nTrial Court etc.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12. As such, we are in complete agreement with the view taken by this\r\nCourt in the aforesaid decisions. The submission on behalf of the\r\nrespondent – original Accused No. 1 and the view taken by the High\r\nCourt in the impugned judgment and order that once an accused is\r\nreleased on default bail under Section 167(2) Cr.P.C., his bail cannot be\r\ncancelled on merits is accepted, in that case, it will be giving a premium\r\nto the lethargic and/or negligence, may be in a given case of deliberate\r\nattempt on the part of the investigating agency not to file the\r\nchargesheet within the prescribed time period. In a given case, even if\r\nthe accused has committed a very serious offence, may be under the\r\nNDPS or even committed murder(s), still however, he manages through </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">a convenient investigating officer and he manages not to file the\r\nchargesheet within the prescribed time limit mentioned under Section\r\n167(2) Cr.P.C. and got released on default bail, it may lead to giving a\r\npremium to illegality and/or dishonesty. As observed hereinabove, such\r\nrelease of the accused on default bail is not on merits at all, and is on\r\nthe eventuality occurring in proviso to sub-section (2) of Section 167.\r\nHowever, subsequently on curing the defects and filing the chargesheet,\r\nthough a strong case is made out that an accused has committed the\r\nvery serious offence and non-bailable crime, the Court cannot cancel the\r\nbail and commit the person into custody and not to consider the gravity\r\nof the offence committed by the accused, the Courts will be loathe for\r\nsuch an interpretation, as that would frustrate the justice. The Courts\r\nhave the power to cancel the bail and to examine the merits of the case\r\nin a case where the accused is released on default bail and released not\r\non merits earlier. Such an interpretation would be in furtherance to the\r\nadministration of justice.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n13. In view of the above and for the reasons stated above, the\r\nimpugned judgment and order passed by the High Court dismissing the\r\napplication for cancellation of the bail filed by the C.B.I. under Section\r\n439(2) Cr.P.C. deserves to be quashed and set aside and is accordingly\r\nquashed and set aside.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The issue involved in the present appeal is answered in the\r\naffirmative and it is observed and held that in a case where an accused\r\nis released on default bail under Section 167(2) Cr.P.C., and thereafter\r\non filing of the chargesheet, a strong case is made out and on special\r\nreasons being made out from the chargesheet that the accused has\r\ncommitted a non-bailable crime and considering the grounds set out in\r\nSections 437(5) and Section 439(2), his bail can be cancelled on merits\r\nand the Courts are not precluded from considering the application for\r\ncancelation of the bail on merits. However, mere filing of the\r\nchargesheet is not enough, but as observed and held hereinabove, on\r\nthe basis of the chargesheet, a strong case is to be made out that the\r\naccused has committed non-bailable crime and he deserves to be in\r\ncustody.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Present appeal is allowed accordingly to the aforesaid extent</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ded3eb3e52178c0fe2720a5b2c6e3992.jpeg', 'b1d6b382616d8b2dffd5588244aaacb3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-18', 1, '', '', '2023-01-17 12:50:03', '2023-01-18 07:06:37');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2576, 'FYhk4kzRNclxGwhp2Sguvcw2h', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A subsequent purchaser has no locus to challenge the acquisition and/or lapsing of the acquisition under the 2013 land acquisition Act. Supreme Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Delhi Development Authority Vs Manpreet Singh and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 277 of 2023 decided on 16 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order passed by the High Court of Delhi at New Delhi dated\r\n30.01.2018 passed in Writ Petition (C) No. 11230 of 2015 by which on\r\nthe writ petition filed by the respondent No. 1 herein – original writ\r\npetitioner, the High Court has allowed the said writ petition and has held\r\nthat the acquisition with respect to the land in question is deemed to\r\nhave lapsed by virtue of Section 24(2) of the Right to Fair Compensation\r\nand Transparency in Land Acquisition, Rehabilitation and Resettlement\r\nAct, 2013 (hereinafter referred to as “Act, 2013”), the beneficiary - Delhi\r\nDevelopment Authority (DDA) and the acquiring body – Government of\r\nNCT of Delhi have preferred the present appeals.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. At the outset, it is required to be noted that it was the specific case\r\non behalf of the appellants before the High Court that the original writ\r\npetitioner is a subsequent purchaser, who has acquired the right, title or\r\ninterest in the land in the year 2018. The original writ petitioner was not\r\nthe recorded owner at the time when the award with respect to the land\r\nin question under the provisions of Land Acquisition Act, 1894\r\n(hereinafter referred to as “Act, 1894”) was issued. From the material on\r\nrecord, it appears that before the High Court, the original writ petitioner\r\nclaimed the right, title or interest on the basis of the Assignment Deed of\r\n2015. In the present case, the notification under Section 4 of the Act,\r\n1894 was issued on 25.11.1980 and the award was declared on\r\n05.06.1987. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Therefore, the short question, which is posed for the\r\nconsideration of this Court is:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Whether the original writ petitioner being a subsequent purchaser\r\nhad locus to challenge the acquisition and/or lapsing of the\r\nacquisition?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6.1 The aforesaid issue is now not res integra in view of the Three\r\nJudge Bench decision of this Court in the case of Shiv Kumar & Anr.\r\n(supra), which has been subsequently followed by another Bench of this\r\nCourt in the cases of Godfrey Phillips (I) Ltd. & Ors. (supra) and\r\nPawan Kumar and Ors. (supra). The decision of this Court in the case <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of Shiv Kumar & Anr. (supra) is a Three Judge Bench decision by\r\nwhich a contrary view taken by the Two Judge Bench of this Court in the\r\ncase of Government (NCT of Delhi) Vs. Manav Dharam Trust and\r\nAnr., (2017) 6 SCC 751 has not been accepted and is found to be not a\r\ngood law. That thereafter after following the Three Judge Bench\r\ndecision in the case of Shiv Kumar & Anr. (supra) in the cases of\r\nGodfrey Phillips (I) Ltd. & Ors. (supra) and Pawan Kumar and Ors.\r\n(supra), this Court has subsequently observed and held that a\r\nsubsequent purchaser has no locus to challenge the acquisition\r\nproceedings / lapsing of the acquisition under the Act, 2013.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>6.2 In that view of the matter, the High Court has committed a serious\r\nerror in entertaining the writ petition at the instance of the respondent\r\nNo. 1 herein – original writ petitioner and has materially erred in\r\ndeclaring that the acquisition with respect to the land in question is\r\ndeemed to have lapsed under Section 24(2) of the Act, 2013 in a writ\r\npetition filed by the respondent No. 1 herein – original writ petitioner,\r\nwho is a subsequent purchaser. Under the circumstances and on that\r\nground alone, the impugned common judgment and order passed by the\r\nHigh Court is required to be quashed and set aside.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. In view of the above and for the reasons stated above, both these\r\nappeals succeed. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The impugned judgment and order passed by the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">High Court is hereby quashed and set aside. The original Writ Petition\r\nNo. 11230 of 2015 filed before the High Court stands dismissed.\r\nPresent appeals are accordingly allowed. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>However, in the facts\r\nand circumstances of the case, there shall be no order as to costs.\r\nPending application, if any, also stands disposed of.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b2ed18c58050eb5ed0aacff1dfdd884a.jpeg', '5852cbcf8c527da1aa12ee901ba06a53.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-18', 1, '', '', '2023-01-17 12:56:31', '2023-01-18 09:25:15'),
(2578, 'spyOMn12UjWi2hkD37AqOKUPE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'No need to pay ad valorem Court fee when the petition for grant of probate is contested and converted into a regular suit. Full Bench of the Karnataka High Court. ', '<p><b>G SOMASHEKAR vs JAYAMMA and others. <br>WRIT PETITION NO.26087 OF 2015(GM-CPC) decided on 17 January 2023<br>JUSTICE B.VEERAPPA, <br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">JUSTICE KRISHNA S. DIXIT <br>JUSTICE H.T. NARENDRA PRASAD</span></b></p><p><b>2. This Reference arose from a learned Single\r\nJudge’s order dated 17.1.2017 made under Section 9 of the\r\nKarnataka High Court Act, 1961. She doubted the\r\ncorrectness of the Division Bench’s view in ANTHONY\r\nSWAMY vs. CHOWRAMMA1\r\n, that ‘once a petition for grant of\r\nprobate or letters of administration is contested, that\r\npetition automatically takes the form of a regular suit… in\r\nwhich the petitioner shall be the plaintiff and the person\r\nwho appeared to oppose the grant shall be the defendant…’.\r\nTherefore, she opined that the proviso to Article 11(l)(ii)(3)\r\nof Schedule II to the Karnataka Court Fees and Suits Valuation Act, 1958 (hereafter ‘1958 Act’), would become\r\napplicable and as a consequence, ad valorem court fee is\r\npayable. Another Division Bench inter alia comprising one\r\nof us (Dixit, J.), directed ‘the Registrar (Judicial) to place\r\nthe petition before the Hon’ble Chief Justice on the\r\nadministrative side for necessary orders’. Hon’ble the Chief\r\nJustice, having constituted this Bench has placed the\r\nReference at its hands </b></p><p><b>For the reasons stated above, we answer the Reference\r\nas under:\r\nA proceeding instituted by filing of a petition u/s.270\r\nof the Indian Succession Act, 1925 for the grant of\r\nprobate or letters of administration, on being contested\r\nu/s.295, regardless of the caveat filed u/s.284, shall\r\ncontinue to be a ‘probate proceeding’ only, as\r\ndistinguished from a civil suit, although it will be tried as nearly as may be in the procedure in which an ordinary\r\ncivil suit is tried and that in the absence of any caveat\r\nfiled under Section 284, the subject matter of such a\r\npetition need not be valued on ad valorem basis in\r\nterms of proviso to Article 11(l)(ii)(3) of the Karnataka\r\nCourt Fees and Suits Valuation Act, 1958.\r\nThe Registry to place this order along with the File\r\nat the hands of the Roster Bench, for deciding the\r\nmatter, in accordance with law.  </b><br></p>', '33f5bf23b72a9e364fa10eb9cd6154c4.JPG', 'fc1f59daed45df932a3ae87120fcbd98.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-18', 1, '', '', '2023-01-18 18:35:20', '2023-01-18 18:39:09'),
(2594, 'Yn3aGBzO2cTIfUr28Ell4GkmE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Property of grandfather directly inherited by grandson, when his father had predeceased the grandfather, becomes the self-acquired property of the grandson. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sri Bhimasi Fakirapaa Bjjjur and others Vs Nagesh Bhimappa Waddar and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular First Appeal 23 of 2022 decided on 22 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.R. Krishna Kumar and Justice K.S. Hemalekha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Both these appeals arise out of the impugned judgment\r\nand decree dated 10.09.2001 passed in O.S.No.155/2001 by\r\nthe Civil Judge, Senior Division, Muddebihal (for short the trial\r\nCourt’), whereby the suit for partition and separate possession\r\nin respect of the suit schedule immovable properties filed by\r\nthe plaintiffs (respondent Nos.1 to 6 in both the appeals)\r\nagainst the appellants-defendant Nos.2 to 11 and respondent\r\nNo.7-defendant No.1 was decreed by the trial Court in favour\r\nof the plaintiffs against the defendants.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The fact leading to the present appeals may be\r\nbriefly stated as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Respondent Nos.1 to 6 – plaintiffs presented the plaint\r\nclaiming partition and separate possession of their alleged\r\n8/9th share in the suit schedule immovable properties and for\r\nother reliefs. Plaintiff Nos.1 to 3 and 5 and 6 claimed to be the\r\nchildren of defendant No.1 - Bhimappa Nagappa Waddar,\r\nwhile plaintiff No.4 – Smt.Janaki Bai was his wife. Defendant\r\nNo.1 remained ex-parte in the suit and did not contest the\r\nsame. Defendant Nos.2 to 11 were alienees in respect of\r\nportions of the suit schedule properties and they contested the\r\nsuit. It is relevant to state that undisputedly, the suit schedule\r\nproperties had been alienated and sold in favour of defendant\r\nNos.2 to 11 during the period 1980-85 under various sale\r\ndeeds executed by defendant No.1 in favour of defendant\r\nNos.2 to 11. It is relevant to state that while plaint ‘A’\r\nschedule properties are landed properties comprising of six\r\nitems, plaint ‘B’ schedule property is a residential house.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Based on the above pleadings, the following points\r\narise for my consideration in the present appeals:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(i) Whether the application, I.A.No.1/2021 filed by\r\nthe appellants in RFA No.23/2002 under Order 41 Rule\r\n27 CPC for permission to produce additional evidence\r\ndeserves to be allowed?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) Whether the trial Court was justified in coming to\r\nthe conclusion that the suit schedule properties were the\r\nancestral joint family properties in the hands of defendant\r\nNo.1, Bhimappa Nagappa Waddar? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iii) Whether the impugned judgment and decree\r\npassed by the trial Court warrants interference by this\r\nCourt in the present appeal?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Re- Point No.(i):-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n 12. As stated supra, the trial Court recorded a finding\r\nthat the suit schedule properties were the ancestral joint family\r\nproperties of defendant No.1, in which the plaintiffs were\r\nentitled to a share and that the alienations made by defendant\r\nNo.1 in favour of defendant Nos.2 to 11 were not for legal\r\nnecessity or benefit of the estate and accordingly, the same\r\nwere not binding upon the plaintiffs or their share in the suit\r\nschedule properties. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12.3 A perusal of I.A.No.1/2021, the documents\r\nsought to be produced and the Statement of Objections filed\r\nby respondent Nos.1 to 6 is sufficient to show that the\r\ndocuments sought to be produced relate to item Nos.1 and 2\r\nof the suit schedule properties bearing Sy.No.112 and\r\nconsequently, I am of the considered opinion that the said\r\ndocuments are relevant, material and essential for\r\nadjudication of the issues in controversy involved in the\r\npresent appeals and for its disposal. It is no doubt true that\r\nthe documents sought to be produced are post litem\r\ndocuments, which have come into existence during the\r\npendency of the appeal; nevertheless, so long as the\r\ndocuments are not disputed by respondent Nos.1 to 6 and\r\nthey relate to the suit schedule properties coupled with the fact\r\nthat the suit is one for partition and separate possession of the\r\nplaintiffs’ alleged share, it cannot be said that the documents\r\nare not to be permitted to be produced by way of additional\r\nevidence and I.A.No.1/2021 deserves to be allowed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> Accordingly, I.A.No.1/2021 is hereby allowed and Point\r\nNo.1 is answered accordingly. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Re- Point No.(ii):-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 13. A perusal of the impugned judgment and decree\r\nwill indicate that the trial Court has come to the conclusion that\r\nthough the suit schedule properties were the separate and self\r\nacquired properties of the propositus - Shettappa Waddar,\r\ngrand father of defendant No.1, upon his demise in 1975 and\r\nsince his son, Nagappa Bhimappa Waddar (father of\r\ndefendant No.1) had predeceased him in 1965, the suit\r\nschedule properties were ancestral joint family properties in\r\nthe hands of defendant No.1. In this regard, it is significant to\r\nnote that the question, whether the self acquired and separate\r\nproperties inherited by a male Hindu from his father/grand\r\nfather, who expired after 1956 when the said Act of 1956\r\ncame into force is no longer res integra in the light of the\r\njudgment of the Apex Court in Uttam’s case<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13.7 In the instant case, it is an undisputed fact that\r\nexcept seeking for a decree for partition simpliciter, the\r\nplaintiffs have not sought for any declaration that the\r\nalienations made by defendant No.1 prior to the suit during the\r\nyears 1980-1985 are not binding upon them. It is well settled\r\nthat Kartha of a Hindu undivided family is empowered to\r\nalienate joint family/ancestral properties for legal necessity or\r\nbenefit of the estate of the joint family and the validity of such\r\nan alienation would have to be adjudicated depending on the\r\nfacts of the case. In other words, there was no bar for\r\ndefendant No.1 to alienate the suit schedule properties in\r\nfavour of defendant Nos.2 to 11 including the alleged share of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the plaintiffs and so long as the said alienations were affected\r\nprior to institution of the suit, it was incumbent upon the\r\nplaintiffs to seek a declaration that the said alienations by\r\ndefendant No.1 were not binding upon the plaintiffs or their\r\nalleged share in the suit schedule properties</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">13.10 A perusal of the aforesaid order of this Court will\r\nclearly indicate that no categorical or conclusive finding has\r\nbeen recorded by this Court to the effect that the suit schedule\r\nproperties are ancestral joint family properties of defendant\r\nNo.1. On the other hand, the said order contains mutual\r\ncontradictions, ambiguities and inconsistencies, which are\r\nsufficient to show that it was an open remand by this Court to\r\nthe trial Court for reconsideration afresh including the question\r\nas to, whether the suit schedule properties were the ancestral </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">joint family properties of defendant No.1 or whether the same\r\nwere his separate self acquired properties. Under these\r\ncircumstances, we are of the view that the trial Court\r\ncommitted an error in coming to the conclusion that the suit\r\nschedule properties are the joint family properties by wrongly\r\nplacing reliance upon the aforesaid remand order of this Court\r\nand consequently, even this finding recorded by the trial court\r\ndeserves to be set aside.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Accordingly, we answer Point No.2 by holding that the\r\nsuit schedule properties were the separate and self acquired\r\nproperties of defendant No.1 – Bhimappa Nagappa Waddar\r\nand not his joint family / ancestral properties and that the\r\nalienations made by him in favour of defendants 2 to 11 are\r\nperfectly legal, valid and proper and that the plaintiffs are not\r\nentitled to any share in the said properties.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Re-Point No.(iii):-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. As stated supra, while dealing with Point No.1, we\r\nhave already come to the conclusion that the documents\r\nsought to be produced by way of additional evidence are <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">relevant and material for the purpose of adjudication / disposal\r\nof the present appeals and that the same are required for the\r\npurpose of pronouncing judgment in the appeals. The sale\r\ndeed sought to be produced by way of additional evidence\r\nalso indicates that the plaintiffs having signed as witnesses to\r\nthe documents have categorically and unequivocally admitted\r\nthat the defendant No.1 was the sole and absolute owner of\r\nthe properties conveyed under the said sale deed, thereby\r\nfalsifying their claim that the suit schedule properties were\r\njoint family ancestral properties, particularly when all the suit\r\nschedule properties including the properties alienated in\r\nfavour of defendants 2 to 11 prior to the suit and the properties\r\nalienated by defendant No.1 during the pendency of the\r\nappeals were all acquired by the defendant No.1 by\r\nsuccession and there were his separate and self acquired\r\nproperties.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14.2 Insofar as the judgments relied upon by the\r\nrespondents and the other judgments relied upon by the\r\nappellants are concerned, in view of our findings above and\r\nthe legal principles enunciated in the judgments extracted\r\nabove, we are of the view that the said judgments are not\r\napplicable to the facts of the instant case.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> We accordingly, answer Point No.3 by holding that the\r\nimpugned judgment and decree passed by the trial court is\r\nillegal, unjust, unfair and opposed to the facts and probabilities\r\nof the case and the same deserves to be set aside and the\r\nsuit of the plaintiffs is liable to be dismissed. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> (i) Both the appeals in RFA No.1012/2001 and RFA No.\r\n23/2002 are hereby allowed</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '616963d324ae1805b7e0941abab4e29f.jpeg', 'c4aa8eb30dd4d35bb11b64daafa5ada4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-24', 1, '', '', '2023-01-23 15:09:54', '2023-01-24 03:21:38'),
(2580, 'kkH4gMKbqdtaAMizQ0BT2wAz6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bail. Merely because another accused who was granted bail was armed with similar weapon is not sufficient to determine whether bail can be granted on the basis of parity. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Abdul Majeed Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 10830 of 2022 decided on 16 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. This is a successive bail petition and earlier, this\r\nCourt considered the bail petition filed in Crl.P.No.4008/2022 on\r\nmerits after filing of the charge-sheet and dismissed the same\r\nvide order dated 01.07.2022 and now the present successive bail\r\npetition is filed contending that the name of this petitioner is not\r\nmentioned in the FIR and also in the requisition Form No.146(i)\r\nand (ii) sent to doctor for post-mortem which is prepared after\r\ninquest. It is also contended that at the earliest point of time\r\nwhen the injured deceased was taken to Narayana Hrudalaya </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">hospital and got admitted, while giving history, the name of the\r\npetitioner is not mentioned as one of the assailant and only this\r\npetitioner has been implicated after five days of the incident that\r\nis on 20.08.2021. Only one eye-witness i.e., CW19 though his\r\nstatement alleged to have been recorded on 16.08.2021, there is\r\nno reference in any of the remand application in the case diary\r\nfor having recorded on that day and no details in remand\r\napplications dated 16.08.2021 and 20.08.2021 and no overt act\r\nof assault is attributed against this petitioner but in the\r\nstatement of the eye-witness CW19, the alleged overt act is\r\nimproved and added at the time of filing of the charge-sheet.\r\nThe improved version is contrary to mobile video recordings\r\nwhich is relied as electronic evidence and presence of this\r\npetitioner is not there. When the prosecution relies on the\r\nmobile video as one of the document and relied on the pen\r\ndrive, ought to have been furnished to the accused. But the\r\nsame has not been furnished. Since this petitioner is the\r\nbrother-in-law of accused Nos.1 and son-in-law of accused No.2,\r\nwhile implication of accused Nos.1 to 3, at belated stage, this\r\npetitioner also has been subsequently added as accused No.5. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">This petitioner is in judicial custody since 20.08.2021 and the\r\ncase of the petitioner is similar to accused No.7, 8 and 4 who\r\nhave been enlarged on bail and on the ground of parity, this\r\npetitioner is entitled for the bail and no any bad antecedents\r\nagainst this petitioner.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. Having heard the learned counsel appearing for the\r\nrespective parties and also on perusal of the material available\r\non record it is not in dispute that this Court earlier rejected the\r\nbail petition of this petitioner on merits after filing of the chargesheet in Crl.P.No.4008/2022 vide order dated 01.07.2022. This\r\npetitioner was arraigned as accused No.5. This Court while\r\ndismissing the earlier petition taken note of the grounds which\r\nhave been urged that his name was not found in the FIR at the\r\nfirst instance and the eye-witness-CW19 was also taken along\r\nwith the victim in the car and CW19 has narrated that the\r\npetitioner was very much present at the time of the incident and\r\nthe manner in which accused persons inflicted the injuries. The\r\ncomplainant also made specific averments in the complaint with\r\nregard to inflicting of injuries which he came to know about the\r\nincident from eye-witness CW19. The only grounds urged before\r\nthis Court in the present petition that the remand application\r\ndoes not disclose the involvement of this petitioner and also\r\nother grounds that no overt act against this petitioner and\r\nmobile seized also not discloses the very presence of the\r\npetitioner. The said contention cannot be accepted for the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reason that in the seizure mahazar of mobile which is produced\r\nby the petitioner himself, the video of 1 minute 30 seconds was\r\nplayed at the time of the seizure wherein the name of Sarhan’s\r\nT-shirt was taken and assailants were exchanging the words\r\nbetween them and another person implicated the injury with the\r\nstick when the injured was screaming, other persons who were\r\nthere at the spot also noticed and when the accused-Ajmal\r\nPasha was enquired and he replied that he himself, his fatherAlmas Pasha, his brother-Kadeer Pasha and Abdul Majeed that is\r\nthis petitioner and others questioned the victim that how many\r\ngirls life was spoiled by him and why he had done the same to\r\ntheir girl and he identified his voice. Hence, the seizure mahazar\r\nof mobile is very clear that this petitioner was present along with\r\nthe other assailants and the very contention that the mobile\r\nvideo does not show his presence cannot be accepted. Apart\r\nfrom that the material clearly discloses that this petitioner was\r\nvery much present at the time of committing the murder and\r\nexchanged the words between this petitioner and other\r\nassailants with the victim. No doubt, there is no dispute with the\r\nprinciples laid down in the judgments referred supra as the Court </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">can consider the subsequent bail application when more details\r\nare given and also the Court has to presume that in a criminal\r\njurisprudence that he is an innocent and at the same time, the\r\nCourt has to keep in mind whether there is a prima facie case\r\nagainst the petitioner. This Court while considering the petition\r\non merits taken note of the very presence of the petitioner as\r\nwell as the eye-witness CW19 and CW19 statement was\r\nrecorded on the very next date of the incident and merely not\r\nmentioning the statement of PW19 in the remand application\r\ncannot be a ground and each and everything of statement of\r\nCW19 cannot be extracted in a remand application. The main\r\ncontention that there is no any overt act and also he was not\r\npresent in terms of the seizure mahazar of mobile but this Court\r\nalready found that this petitioner was very much present at the\r\ntime of committing the offence and scolded the victim.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. With regard to the parity is concerned, the counsel\r\nfor the petitioner would vehemently contend that accused Nos.7,\r\n8 and 4 have been enlarged on bail and hence, this petitioner is\r\nalso entitled for bail on the ground of parity. The Apex Court in\r\nthe judgment of RAMESH BHAVAN RATHOD vs VISHANBHAI\r\nHIRABHAI MAKWANA (KOLI) AND ANOTHER reported in\r\n(2021) 6 SCC 230 while considering the bail on the ground of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">parity of co-accused held that while applying the principles of\r\nparity, the Court cannot exercise its powers in a capricious\r\nmanner and has to consider totality of circumstances before\r\ngranting bail, parity while granting bail must focus upon role of\r\naccused, and not only on weapon carried by accused, merely\r\nobserving that another accused who was granted bail was armed\r\nwith similar weapon is not sufficient to determine whether bail\r\ncan be granted on the basis of parity in deciding aspect of parity,\r\nrole attached to accused, their position in relation to incident and\r\nto victims is of utmost importance and also held that whether\r\norder granting bail can be relied on as a precedent in a matter\r\nfor future adjudication if and when application for bail is moved\r\non the ground of parity on behalf of another accused. In the\r\nevent that parity is claimed in such case thereafter, it is for that\r\nCourt before whom parity is claimed to determine whether case\r\nfor grant of bail on the grounds of parity is made out. In the\r\ncase on hand, it is very specific that this petitioner is the relative\r\nof accused Nos.1 to 3 and while committing the murder, all of\r\nthem joined together and went in a vehicle and when CW19 tried\r\nto prevent the act of the accused persons, he was also taken in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the said vehicle and CW19 narrated how the incident was taken\r\nplace. I have already pointed out that even the pen drive\r\nregarding seizure of mobile of one accused also discloses that\r\nthis petitioner was very much present at the time of committing\r\nthe murder and also scolded the victim asking that how many\r\ngirls he had spoiled and why he had done the same to their girl\r\nand the same is evidenced in the document produced by the\r\npetitioner itself regarding seizure of mobile and when the pen\r\ndrive was also discloses that he was very much present along\r\nwith other accused persons at the time of committing murder,\r\nthe very contention of the counsel for the petitioner that no\r\novert act and CC TV discloses only his presence and same is only\r\nfor 1 minute 30 seconds and the eye-witness stated the same\r\ncannot be accepted and the counsel further contended that\r\nsubsequently, improvement was made in the statement of CW19\r\nwhile filing the charge-sheet and the said fact is a matter of trial\r\nand prima facie material discloses against this petitioner. Hence,\r\nI do not find any merit in the contention of the learned counsel\r\nfor the petitioner to exercise the discretion in favour of this </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner in a successive bail petition when there is no changed\r\ncircumstances.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The bail petition is rejected. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '621cb6f596266108e61b16be0c572816.JPG', '1ef22d3296c7629a1d7cfe990e76b8e2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-20', 1, '', '', '2023-01-19 19:03:40', '2023-01-20 11:15:50'),
(2581, 'elCK4hqctbj6MbVNFhrL0iCXP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'POCSO Act. Special Judge has no power to reduce minimum sentence of seven years for the penetrative sexual assault punishable under Section 4. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State of Karnataka Vs Shaik Rouf.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 200060 of 2016 decided on 3 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V. Srishananda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Brief facts which are necessary for disposal of\r\nthe appeal are as under: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Accused/respondent was chargesheeted for the\r\noffence punishable under Section 376 of IPC and Section 4\r\nof Protection of Children from Sexual Offences Act, 2012,\r\n(for short, hereinafter referred to as ‘POCSO Act’). Accused\r\npleaded not guilty and therefore, the trial was held. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Prosecution in order to prove its case, examined 21\r\nwitnesses as P.Ws.1 to 21 and relied on 17 documentary\r\nevidence which are exhibited and marked as Exs.P.1 to\r\nP.17. The prosecution also placed reliance on 9 material\r\nobjects which are marked as M.Os.1 to 9. Thereafter,\r\nstatement of accused as contemplated under Section 313\r\nof Cr.P.C., was recorded wherein accused denied all the\r\nincriminating materials that are found against the accused.\r\nAccused did not chose to place any defence evidence or his\r\nwritten statement as is contemplated under Section 313\r\n(5) of Cr.P.C.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. In other words, the presumption contemplated\r\nunder Section 29 and 30 of the POCSO Act, were not\r\nrebutted by the accused by placing rebuttal evidence on\r\nrecord.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. In view of the rival contentions urged by the\r\nparties, this Court perused the material available on record\r\nmeticulously. On such perusal of the records, the sole\r\npoint that would arise for consideration is:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>Whether sentencing the\r\naccused/respondent for a period of 5 years for\r\nthe offence under Section 4 of the POCSO Act\r\nis justified? </b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. In the case on hand, the order of conviction\r\npassed by the trial Court insofar as convicting the accused\r\nunder Section 376 of IPC and under Section 4 of the\r\nPOCSO Act is not challenged by the respondent / accused.\r\nAs such, the conviction order has become final. The\r\naccused did not choose to file cross appeal after the\r\npresent appeal was admitted by this Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. As could be seen from Section 4 of the POCSO\r\nAct (Unamended), the minimum sentence that was to be\r\nimposed after finding the accused guilty under Section 4 of\r\nthe POCSO Act is seven years. It is pertinent to note that\r\nsince the statute has prescribed a minimum sentence of\r\nseven years for the offence punishable under Section 4 of\r\nthe POCSO Act, learned Special Judge did not have any\r\npower whatsoever to reduce minimum sentence to five\r\nyears. Perhaps, the said aspect of the matter has missed\r\nthe notice of the learned Special Judge while passing the\r\norder of sentence.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">16. It is settled principle of law and requires no\r\nemphasis that when a statute prescribes minimum\r\nsentence, the trial judge or the appellate judge has no </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">discretion whatsoever to reduce the minimum sentence\r\nprescribed by the statute.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. Applying the said principle of law enunciated in\r\nthe aforesaid decision to the case on hand, awarding\r\nsentence of five years to the respondent/accused by the\r\nlearned trial judge ignoring the fact that statute has\r\nprescribed the minimum sentence of seven years for the\r\noffence punishable under Section 4 of POCSO Act, is thus,\r\nclearly illegal and calls for interference by this Court in this\r\nappeal.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. Therefore, in the facts and circumstances of\r\nthe case, the State has made out a case for enhancing the\r\nsentence to seven years which is minimum sentence\r\nprescribed by statute under Section 4 of POCSO Act.\r\n20. However, the material on record would not\r\nmake out a case for sentence to be passed for more than\r\nseven years, having regard to the fact that the incident is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the year 2013 and victim was aged 13 years at that\r\npoint of time and accused has already spent the period of\r\nimprisonment as ordered by the trial Court, therefore, the\r\nonly modification that is required insofar as the sentence\r\nimposed by the learned Special judge which is impugned in\r\nthis appeal, is to now enhance the sentence of five years\r\nto seven years.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i) Appeal is allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6d3db54e46a415968c0f148cc3df5ede.JPG', '51bba5eba6134c15e2086936ba75eb0b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-20', 1, '', '', '2023-01-19 19:11:54', '2023-01-20 07:34:36');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2582, 'ZTAejO6JKyBSK5FQ2Q3THwNVk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Applicant can be permitted to adduce evidence in an application filed under Section 34 of the Arbitration & Conciliation Act, 1996 only in exceptional cases. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/s Apline Housing Development Corporation Pvt Ltd Vs Ashok S. Dhariwal and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 73 of 2023 decided on 19 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order dated 1.9.2021 passed by the High Court of Karnataka at\r\nBengaluru in Writ Petition No. 50799/2019, by which the High Court has\r\nallowed the said writ petition and while quashing and setting aside the\r\norder passed by the learned Additional City Civil and Sessions Judge,\r\nBengaluru, has permitted the respondents – original writ petitioners to\r\nadduce evidence in an application under Section 34 of the Arbitration &\r\nConciliation Act, 1996 (hereinafter referred to as the ‘Act’), the original <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respondent before the High Court and in whose favour the award has\r\nbeen passed by the learned Arbitral Tribunal has preferred the present\r\nappeal.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>2. The facts leading to the present appeal in a nutshell are as under:</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\nThat against the award passed by the learned arbitrators dated\r\n12.03.1998, an application under Section 34 of the Act being Arbitration\r\nCase No. 38/1998 has been filed by the respondents. That the\r\nrespondents filed an interim application being IA No. 4 in section 34\r\napplication to adduce additional evidence. At this stage, it is required to\r\nbe noted that as such the award passed by the learned arbitrators was\r\nan ex-parte award and no evidence was led by the respondents herein,\r\nwho subsequently assailed the award by way of section 34 application.\r\nThe appellant herein filed objections to the said interim application\r\nseeking permission to adduce evidence on the ground that the same\r\nwas not maintainable in accordance with the provisions of the Arbitration\r\nAct, 1996. The grounds on which the respondents submitted an\r\napplication to permit them to adduce evidence shall be dealt with and\r\nconsidered hereinafter.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.1 The Court dealing with interim application being IA No. 4 in section\r\n34 application rejected the said interim application and refused to permit\r\nthe respondents to adduce evidence by observing that if such a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">permission is granted, it would defeat the object and purpose of early\r\ndisposal of arbitration proceedings and it would delay further hearing of\r\nsection 34 application. For that purpose, reliance was placed on the\r\nprovisions of Section 34(2)(a) of the Act, as amended in the year 2019,\r\nby which expression “furnish proof” in section 34(2)(a) came to be\r\nsubstituted with the expression “establish on the basis of record of\r\narbitral tribunal”. Therefore, the Court dealing with section 34 application\r\nopined that the said amendment intended to limit the scope of judicial\r\nreview under Section 34 of the Act only in exceptional circumstances\r\nenumerated under Section 34(2)(a) of the Act on the basis of the record\r\navailable and even if the grounds urged relate to section 34(2)(b) of the\r\nAct, the applicants cannot have a right to produce additional evidence.\r\nThe order passed by the Court dealing with Section 34 application which\r\nrejected the interim application being IA No. 4 preferred by the\r\nrespondents permitting them to adduce additional evidence/evidence\r\nwas the subject matter of writ petition before the High Court.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.2 Before the High Court, it was conceded on behalf of the appellant\r\nherein – original respondent before the High Court, so recorded in\r\nparagraph 8 of the impugned judgment, that the provisions of Section 34\r\n(2)(a) of the Act, as it stood prior to Act 33 of 2019 would apply, namely,\r\npre-amendment to section 34(2)(a) of the Act shall be applicable. That <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">thereafter, by the impugned judgment and order, after following the\r\ndecision of this Court in the case of Fiza Developers and Inter-Trade\r\nPrivate Limited v. AMCI (India) Private Limited & Another, reported\r\nin (2009) 17 SCC 796, the High Court has allowed the said writ petition\r\nand set aside the order passed by the court below and has allowed the\r\napplication preferred by the respondents herein permitting them to\r\nadduce evidence in the proceedings under section 34 of the Act. The\r\nimpugned judgment and order passed by the High Court permitting him\r\nrespondents to adduce evidence/additional evidence in the proceedings\r\nunder Section 34 of the Act is the subject matter of present appeal\r\nbefore this Court.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The short question which is posed for the consideration of this\r\nCourt is, whether the applicant can be permitted to adduce evidence to\r\nsupport the ground relating to Public Policy in an application filed under\r\nSection 34 of the Arbitration & Conciliation Act, 1996?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>At the outset, it is required to be noted that in the present case the\r\narbitration proceedings commenced and even the award was\r\ndeclared/passed by the arbitral tribunal in the year 1998, i.e., prior to\r\nsection 34(2)(a) came to be amended vide Act 33/2019. Apart from the\r\nfact that it was conceded by the learned counsel appearing on behalf of\r\nthe appellant before the High Court that the law prevailing prior to the\r\namendment of Section 34(2)(a) by Act 33/2019 shall be applicable, even\r\notherwise, we are of the opinion that the arbitration proceedings\r\ncommenced and even the award was declared prior to the amendment\r\nof Section 34(2)(a) by Act 33/2019, Section 34(2)(a) pre-amendment\r\nshall be applicable. The view which we are taking is because by\r\namendment of section 34(2)(a) by Act 33/2019, there is a substantial\r\nchange. Prior to the amendment of section 34(2)(a), an arbitral award\r\ncould be set aside by the Court if the party making an application\r\n“furnishes proof” and the grounds set out in section 34(2)(a) and section\r\n34(2)(b) are satisfied. However, subsequent to the amendment of\r\nsection 34(2)(a), the words “furnishes proof” have been substituted by\r\nthe words “establishes on the basis of the record of the arbitral tribunal”.\r\nIn that view of the matter, we hold that in case of arbitration proceedings\r\ncommenced and concluded prior to the amendment of section 34(2)(a)\r\nby Act 33/2019, pre-amendment of section 34(2)(a) shall be applicable</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The ratio of the aforesaid three decisions on the scope and ambit\r\nof section 34(2)(a) pre-amendment would be that applications under\r\nsections 34 of the Act are summary proceedings; an award can be set\r\naside only on the grounds set out in section 34(2)(a) and section 34(2)\r\n(b); speedy resolution of the arbitral disputes has been the reason for\r\nenactment of 1996 Act and continues to be a reason for adding\r\namendments to the said Act to strengthen the aforesaid object; therefore\r\nin the proceedings under section 34 of the Arbitration Act, the issues are\r\nnot required to be framed, otherwise if the issues are to be framed and\r\noral evidence is taken in a summary proceedings, the said object will be\r\ndefeated; an application for setting aside the arbitral award will not\r\nordinarily require anything beyond the record that was before the\r\narbitrator, however, if there are matters not containing such records and\r\nthe relevant determination to the issues arising under section 34(2)(a),\r\nthey may be brought to the notice of the Court by way of affidavits filed\r\nby both the parties’ the cross-examination of the persons swearing in to\r\nthe affidavits should not be allowed unless absolutely necessary as\r\nthe truth will emerge on the reading of the affidavits filed by both the\r\nparties. Therefore, in an exceptional case being made out and if it is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">brought to the court on the matters not containing the record of the\r\narbitrator that certain things are relevant to the determination of the\r\nissues arising under section 34(2)(a), then the party who has assailed\r\nthe award on the grounds set out in section 34(2)(a) can be permitted to\r\nfile affidavit in the form of evidence. However, the same shall be allowed\r\nunless absolutely necessary.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Now the next question fell for consideration is, whether the present\r\ncase is such an exceptional case that it is necessary to grant opportunity\r\nto the respondents to file affidavits and adduce evidence and whether\r\nany case is made out for the same.\r\nFrom the affidavit, which is sought to be placed in the proceedings\r\nunder Section 34 of the Act, it is seen that the respondents want to place\r\non record the communication from the appropriate authority by which the\r\napplication for amalgamation of the plots is rejected. At this stage, it is\r\nrequired to be noted that the arbitral tribunal has passed the decree for\r\nspecific performance of the contract/agreement, subject to the\r\namalgamation of the plots. Therefore, it is the case on behalf of the\r\nrespondents that in view of the refusal of the permission by the\r\nappropriate authority to amalgamate the plots, the case falls under\r\nsection 34(2)(b), namely, that the dispute is not capable of settlement\r\nunder the law for the time being in force and that the arbitral award is in\r\nconflict with the Public Policy of India, namely, against the relevant land\r\nlaws. The event of refusal to amalgamate the plots is subsequent to the\r\npassing of the award and therefore naturally the same shall not be\r\nforming part of the record of the arbitral tribunal. Even otherwise, it is\r\nrequired to be noted that the award of the arbitral tribunal was an exparte award and no evidence was before the arbitral tribunal on behalf <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the respondents. We are not opining on whether the arbitral tribunal\r\nwas justified in proceeding with the further proceedings ex-parte or not.\r\nSuffice it to record that before the arbitral tribunal, such evidence was not\r\nthere and nothing was on record on the amalgamation of the plots.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The affidavit thus discloses specific document and the evidence\r\nrequires to be produced. In that view of the matter, a strong exceptional\r\ncase is made out by the respondents to permit them to file\r\naffidavits/adduce additional evidence. However, at the same time, the\r\nappellant also can be permitted to cross-examine and/or produce\r\ncontrary evidence.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. In view of the above and for the reasons stated above, we are of\r\nthe opinion that the High Court has not committed any error in permitting\r\nthe respondents to file affidavits/additional evidence in the proceedings\r\nunder section 34 of the Arbitration Act.\r\n13. In view of the above and for the reasons stated above, the present\r\nappeal fails and the same deserves to be dismissed and is accordingly\r\ndismissed. However, it is observed that the appellant herein may also be\r\npermitted to cross-examine and/or lead contrary evidence including the\r\npermission for clubbing khatas where there are nalas as it is the case of\r\nthe appellant that thereafter the corporation vide endorsement dated\r\n28.6.2004 has agreed to consider clubbing of khatas. As and when such <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">evidence is produced/led, the same may also be dealt with by the\r\nconcerned court in accordance with law and on its own merits. However,\r\nat the same time, the court dealing with section 34 application shall\r\nfinally decide and dispose of section 34 application expeditiously,\r\nconsidering the object and purpose of the Arbitration Act, namely,\r\nspeedy disposal.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>14. With these observations, the present appeal is dismissed. There\r\nshall be no order as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2fdc0f781b2d9eb948e960e62c7e2f11.jpeg', 'bc01617cfb5e4acef78a6d123b75c43b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-20', 1, '', '', '2023-01-19 19:23:22', '2023-01-20 05:09:20'),
(2583, 'ALU0pQYleIcIwd9kfNi3JVecS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Interpretation of Statutes. “Provisions of the statute are to be read as they are. Nothing to be added and or taken away.” Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gajanand Sharma Vs Adarsh Siksha Parisad Samiti and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 100-101 of 2023 decided on 19 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts leading to the present appeals in a nutshell are\r\nas under: -</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n2.1 That the appellant herein – employee was serving with\r\nrespondent Nos. 1 and 2. A disciplinary enquiry was\r\ninitiated against him under provisions of the Rajasthan\r\nNon-Governmental Educational Institutions Act, 1989\r\n(hereinafter referred to as the Act, 1989). That thereafter\r\non conclusion of the departmental enquiry services of the\r\nappellant came to be terminated which was the subject\r\nmatter of challenge before the learned Tribunal. The\r\nTribunal set aside the order of termination by observing\r\nand holding that the prior approval of the Director of\r\nEducation as mandatory under Section 18 of the Act, 1989\r\nwas not obtained. The learned Single Judge confirmed the\r\norder passed by the learned Tribunal. By the impugned\r\njudgment and order and despite the fact that the decision\r\nof this Court in the case of Raj Kumar Vs. Director of\r\nEducation and Ors., (2016) 6 SCC 541 dealt with the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">pari materia provisions of the Delhi School Education Act\r\n(hereinafter referred to as the DSE Act), taking the view\r\nthat before termination of an employee, prior approval of\r\nthe Director of Education is mandatory and required, the\r\nDivision Bench of the High Court has not followed the\r\ndecision of this Court in the case of Raj Kumar (supra) by\r\nerroneously observing that in the case of Raj Kumar\r\n(supra), this Court had not considered the earlier decision\r\nin the case of T.M.A. Pai Foundation Vs. State of\r\nKarnataka; (2002) 8 SCC 481. That thereafter, after\r\nfollowing the decision of the Larger Bench of the High\r\nCourt in the case of Central Academy Society Vs.\r\nRajasthan Non-Govt. Educational Institutional\r\nTribunal; (2010) 3 WLC 21 reading down Section 18 of\r\nthe Act, 1989, observed that in case of a termination after\r\nthe disciplinary enquiry/proceedings prior approval of the\r\nDirector of Education is not required, the Division Bench\r\nof the High Court has allowed the writ appeal and has set\r\naside the orders passed by the learned Tribunal as well as\r\nthe learned Single Judge and has upheld the order of\r\ntermination. That the impugned judgment and order </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">passed by the High Court is the subject matter of one of\r\nthe present appeals. At this stage, it is required to be noted\r\nthat letters patent appeal (D.B. Special Writ Appeal) No.\r\n826/2011 was the subject matter of order dated\r\n06.01.2011 passed by the learned Single Judge denying\r\nthe case of the appellant for equal pay for equal work.\r\nHowever, since the termination order came to be upheld,\r\nthereafter, without further entering into the merits of the\r\nappeal, the Division Bench of the High Court has\r\ndismissed the said appeal, which is also the subject matter\r\nof one of the present appeals.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. At the outset, it is required to be noted that and it is an\r\nadmitted position that parties are governed by the\r\nRajasthan Non-Governmental Educational Institutions Act,\r\n1989. Section 18 provides that no employee of a recognized\r\ninstitution shall be removed, dismissed, or reduced in rank\r\nunless he has been given by the management a reasonable\r\nopportunity of being heard against the action proposed to\r\nbe taken and that no final order in this regard shall be\r\npassed unless prior approval of the Director of Education <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">or an officer authorized by him in this behalf has been\r\nobtained. The learned Tribunal set aside the order of\r\ntermination on non-compliance of Section 18 of the Act,\r\n1989 inasmuch as before terminating the services of the\r\nappellant – employee prior approval of the Director of\r\nEducation was not obtained. The same came to be\r\nconfirmed by the learned Single Judge, however, by the\r\nimpugned judgment and order taking a contrary view, the\r\nDivision Bench of the High Court has allowed the appeal\r\nand has restored the order of termination.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5.5 Even on fair reading of Section 18 of the Act, 1989, we are\r\nof the opinion that in case of termination of an employee of\r\na recognized institution prior approval of the Director of\r\nEducation or an officer authorised by him in this behalf\r\nhas to be obtained. In Section 18, there is no distinction\r\nbetween the termination, removal, or reduction in rank\r\nafter the disciplinary proceedings/enquiry or even without\r\ndisciplinary proceedings/enquiry. As per the settled\r\nposition of law the provisions of the statute are to be read\r\nas they are. Nothing to be added and or taken away. The\r\nwords used are “no employee of a recognized institution\r\nshall be removed without holding any enquiry and it\r\nfurther provides that no final order in this regard shall be\r\npassed unless prior approval of the Director of Education <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">has been obtained.” The first part of Section 18 is to be\r\nread along with first proviso. Under the circumstances,\r\ntaking a contrary view that in case of dismissal/removal of\r\nan employee of a recognized institution which is after\r\nholding the departmental enquiry the prior approval of the\r\nDirector of Education is not required is unsustainable and\r\nto that extent the judgment of the Larger Bench of the\r\nRajasthan High Court in the case of Central Academy\r\nSociety (supra) is not a good law.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5.6 Therefore, on true interpretation of Section 18 of the Act,\r\n1989, it is specifically observed and held that even in case\r\nof termination/removal of an employee of a recognized\r\ninstitution after holding departmental enquiry/proceedings\r\nprior approval of the Director of Education has to be\r\nobtained as per first proviso to Section 18 of the Act, 1989.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">6. In view of the above and for the reasons stated\r\nhereinabove, the impugned judgment and order passed by\r\nthe Division Bench of the High Court restoring the order of\r\ntermination which as such was without obtaining the prior\r\napproval of the Director of Education deserves to be </span><span style=\"font-size: 12pt;\">quashed and set aside and is accordingly quashed and set\r\naside. The order of learned Tribunal setting aside the order\r\nof termination confirmed by the learned Single Judge is\r\nhereby restored. Consequently, the appellant shall have to\r\nbe reinstated in service and considering the fact that the\r\nrespondent(s) is/are un-aided institution and the order of\r\ntermination was passed as far as back in the year 1998,\r\nwe direct that the appellant shall be entitled to 50% of the\r\nback wages, however, he shall be entitled to all other\r\nbenefits notionally including the seniority etc., if any.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>6.1 Civil appeal No. 100/2023 arising out of the impugned\r\njudgment and order passed in D.B. Special Appeal Writ No.\r\n1077/2005 is hereby allowed according to the aforesaid\r\nextent. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Both the appeals are accordingly allowed to the\r\naforesaid extent and in terms of the above. In the facts and\r\ncircumstances of the case there shall be no order as to\r\ncosts.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '81e5e1b0b8dbdbb236ac62418e4e0a30.jpeg', '6460a1551503d599f64b08a8aa04412d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-20', 1, '', '', '2023-01-19 19:29:05', '2023-01-20 09:07:30'),
(2584, 'eZRPyY0yP6q0DbxVtsNYvaVyd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'There must be consistency in the matter of interim orders though the principle of binding precedents cannot apply. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span style=\"font-size: 10pt; font-family: Verdana, sans-serif; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><i>Vishnu\r\nTraders v. State of Haryana</i>, 1995 Supp (1) SCC 461 at page 462</span></b></p><p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><span style=\"font-size: 10pt; font-family: Verdana, sans-serif; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><br></span></b><b style=\"text-align: justify; text-indent: 18pt; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-size: 10.5pt; font-family: \"Open Sans\", sans-serif;\">3.</span><span style=\"font-size: 10.5pt; font-family: \"Open Sans\", sans-serif;\"> In the matters of interlocutory orders, principle of binding\r\nprecedents cannot be said to apply. However, the need for consistency of\r\napproach and uniformity in the exercise of judicial discretion respecting\r\nsimilar causes and the desirability to eliminate occasions for grievances of\r\ndiscriminatory treatment requires that all similar matters should receive\r\nsimilar treatment except where factual differences require a different treatment\r\nso that there is assurance of consistency, uniformity, predictability and\r\ncertainty of judicial approach.</span></b></p><p>\r\n\r\n\r\n\r\n</p><p class=\"MsoNormal\"><o:p><b> </b></o:p></p>', '4c8e40171457f3fa7ad1c880de75e538.jpeg', 'd1c0a742a514ce50465b0525da703609.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-23', 1, '', '', '2023-01-19 22:20:11', '2023-01-23 13:00:23'),
(2586, '4KUwUBeqII5lkiB6vwlSj78H2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“When the State or its agents fear the people there is LIBERTY; when the people fear the State or its agents, there is TYRANNY”. Karnataka High Court awards Rs. 3 lakhs compensation to Advocate who was illegally arrested and tortured by the Police.  ', '<p><b>Kuldeep vs State of Karnataka and others. <br>Writ Petition 24832 of 2022 decided on 19 January 2023<br>Justice M. Nagaprasanna</b></p><p><b>“When the State or its agents fear the people there is\r\nLIBERTY; when the people fear the State or its agents, there\r\nis TYRANNY” .\r\n</b></p><p><b>The petitioner, a young advocate laments that his\r\npersonal liberty is torn into smithereens by a few,\r\nmegalomaniac and mayhem happy, police personnel in an\r\nact of outrage of his human rights.</b></p><p><b>The petitioner, a young boy of 23 years, an Advocate, too\r\nyoung to the bar, having enrolled on 02-11-2022 to the Karnataka\r\nState Bar Council claims to be practicing in all Courts of the city at\r\nMangaluru. The narration of the story is that, the petitioner owns\r\ncertain agricultural property, it abuts an agricultural property of\r\nMrs. Bhavani and K.Vasantha Gowda, her husband. It is averred\r\nthat K.Vasantha Gowda started obstructing the petitioner of his right to use the road leading to his agricultural property and was\r\nattempting to erect a permanent gate with an intention to prevent\r\nthe petitioner and his family from making use of the road that led\r\nto his agricultural property. This constrains the petitioner to\r\napproach the Court of the Principal Civil Judge and JMFC, Bantwal in\r\nO.S.No.391 of 2022. The Court entertaining the suit grants\r\ntemporary injunction against K.Vasantha Gowda, in terms of its\r\norder dated 01-12-2022. The petitioner after securing certified\r\ncopy of the temporary injunction order communicates it to the SubInspector of Police, Punjalakatte Police Station on 02-12-2022 to\r\ntake action to protect his property, in terms of the interim order so\r\ngranted by the civil Court. It is alleged that there was no action\r\ntaken by the Police.</b></p><p><b>3. It transpires that the Police closed the complaint against\r\nK. Vasantha Gowda holding it to be a land dispute on 02-12-2022,\r\non the same day. Immediately after closure of the said complaint,\r\nMrs. Bhavani registers a complaint against the petitioner at 8.15\r\np.m. on 02-12-2022. The crime is registered against the petitioner\r\non the complaint made by Mrs. Bhavani for offences punishable under Sections 447 and 379 of the IPC. Therefore, Mrs. Bhavani is\r\nthe complainant. Even before the FIR could be registered on her\r\ncomplaint, it is alleged that on 02.12.2022 the 4th respondent/SubInspector of Police enters the house of the petitioner at 8.00 p.m.\r\nand in spite of resistance of the mother of the petitioner, the Police\r\ncaught hold of the neck of the petitioner, drag him, boot him and\r\ntake him to the Police Station and later register a FIR against the\r\npetitioner at 8.15 p.m., on the complaint of Mrs. Bhavani,\r\nW/o.K. Vasantha Gowda. The incident narrated in the complaint is\r\nthat the petitioner has attempted to take away the gate that Mrs.\r\nBhavani wanted to erect. Therefore, the offences under Sections\r\n447 and 379 of the IPC were laid against the petitioner in Crime\r\nNo.94 of 2022. It is the allegation that petitioner’s personal liberty\r\nwas taken away completely contrary to law. </b></p><p><b>4. After the arrest, the petitioner applies for interim bail\r\nbefore the concerned Court. The Court records the ill-treatment\r\nmeted out during arrest of the petitioner by the 4th respondent and\r\nassault on the petitioner during the arrest in his house and also\r\nobserved that intimation to be sent to higher authorities to take action against the Police Officer for violation of personal liberty of\r\nthe petitioner and grants interim bail. Immediately on release of\r\nthe petitioner on interim bail, he files a complaint before the\r\nPunjalakatte Police Station against the 4th respondent and other\r\nofficers who have manhandled him narrating entire circumstances.\r\nThough the complaint was filed before the Police on 09-12-2022,\r\nthe crime was not registered. This led the petitioner to knock at\r\nthe doors of this Court in the subject petition. This Court, in terms\r\nof its order dated 13-12-2022, directed the learned Additional\r\nGovernment Advocate to seek instructions as to what has become\r\nof the complaint registered by the petitioner against the 4th\r\nrespondent and place investigation papers on record. Even then,\r\nthe FIR on the complaint of the petitioner was not registered. The\r\nmatter was listed on 04-01-2023. The State sought a day’s time to\r\nseek instructions. It is then on the evening of 04-01-2023 the\r\ncrime comes to be registered against the 4th respondent and others\r\nwho were involved in the incident of alleged assault against the\r\npetitioner. The afore-narrated forms the skeleton of the case at\r\nhand.</b></p><p><b>13. The offences alleged against the petitioner are the ones\r\npunishable under Sections 379 and 447 of the IPC. Sections 379\r\nand 447 of the IPC read as follows:\r\n<br>“379. Punishment for theft.—Whoever commits theft shall\r\nbe punished with imprisonment of either description for a term\r\nwhich may extend to three years, or with fine, or with both.”\r\n … … …\r\n<br>447. Punishment for criminal trespass.—Whoever\r\ncommits criminal trespass shall be punished with imprisonment of\r\neither description for a term which may extend to three months, or\r\nwith fine which may extend to five hundred rupees, or with both.”\r\nSection 379 deals with theft. Any person indulging in thieving\r\nwould become punishable under Section 379 of the IPC and the\r\nmaximum punishment is three years. Section 447 deals with criminal trespass and whoever commits criminal trespass would be\r\npunished with a maximum term of three months or fine or both.\r\nTherefore, the offences punishable against the petitioner even if\r\nconvicted would be for an imprisonment of 3 years to the\r\nmaximum. <br></b></p><p><b>The Apex Court in the case of D.K.BASU holds that\r\nfundamental rights occupy a place of pride in the Indian\r\nConstitution. Article 21 of the Constitution of India mandates that\r\nno person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. Personal liberty\r\nthus, is held a sacred and cherished right under the Constitution.\r\nThe Apex Court also records that arrest of an accused during\r\ninvestigation of a cognizable offence would be considered justified\r\nonly in one of those circumstances narrated. The Apex Court in the\r\ncase of ARNESH KUMAR holds that, in offences which are\r\npunishable with less than seven years of imprisonment, merely\r\nbecause power of arrest is available, the accused should not be\r\narrested unless a notice is issued under Section 41-A of the Cr.P.C.,\r\nand summoned for questioning. The Apex Court then lays down\r\nguidelines clearly observing that an arrest cannot be automatic\r\nunless the Police satisfy themselves about the necessity of arrest\r\nand before doing so a notice of appearance in terms of Section 41-A\r\nCr.P.C. should be issued. This is followed by the Apex Court in the\r\ncase of MOHAMMED ZUBAIR. The Apex Court holds that arrest is\r\nnot meant to be and must not be used as a punitive tool because it\r\nresults in gravest possible consequence emanating from criminal\r\nlaw, the loss of personal liberty. This is reiterated by the Apex\r\nCourt in the case of SATENDER KUMAR ANTIL holding that it is\r\nexpected of the Courts to come down heavily on officers who effect  arrest without due compliance with Sections 41 and 41A of the\r\nCr.P.C. and the guidelines laid down by the Apex Court in ARNESH\r\nKUMAR. The aforesaid are the distilled essence of what the Apex\r\nCourt holds concerning issues of illegal arrest and snatching away\r\npersonal liberty of an accused.  <br></b></p><p><b>15. It is trite law that no arrest can be made because it is\r\nlawful for the Police to do so. The existence of power to arrest is\r\none thing and justification for the said exercise is another. No arrest\r\nshould be made without a reasonable satisfaction reached after\r\nsome investigation as to the genuineness and bonafides of the\r\ncomplaint/information, as any arrest would deny a person of his\r\nliberty, which is a very serious matter, as arrest brings humiliation,\r\ncurtails freedom and casts a scar forever. <br></b></p><p><b>16. If the case at hand is considered on the bedrock of the\r\nprinciples laid down by the Apex Court in the aforesaid cases, what\r\nwould unmistakably emerge is, the personal liberty of the petitioner\r\nis snatched away by the 4th respondent and his cohorts in a brutal\r\nmanner without even a warrant of arrest or even registration of an\r\nFIR. The records would reveal that he has been assaulted and tortured throughout his travel in the jeep and has later been\r\nthreatened to give evidence against himself, all of which cannot but\r\nbe termed to be grossly illegal and blatantly highhanded. The\r\npower of arrest of an accused is misused and abused in the case at\r\nhand. </b></p><p><b>The Apex Court holds that the attitude to arrest and then\r\nproceed with the rest is despicable and has become a handy tool to\r\npolice officers who lack sensitivity or act with oblique motive. The\r\nobservations of the Apex Court are apt to be applied in the case at\r\nhand. The arrest of the petitioner has been in violation of Article 21\r\nof the Constitution of India and the petitioner was compelled to face\r\nhumiliation. The act of the police is not only in violation of the\r\nguidelines issued by the Apex Court right from the judgment in the\r\ncase of D.K.BASU, upto the judgment of SATENDAR KUMAR\r\nANTIL. There is flagrant violation of the mandate of the law\r\nenshrined under Sections 41 and 41-A of the Cr.P.C. The police can\r\nin no circumstance flout the law with such brazen proclivity. It is in\r\nthese circumstances, the public law remedy which has been\r\npostulated by the Apex Court in several judgments as also in the\r\njudgments quoted hereinabove comes into play. The Constitutional\r\nCourts in exercise of their jurisdiction of public law remedy have\r\ntaken note of the suffering and humiliation and have held those\r\ncitizens who have faced such suffering and humiliation at the hands\r\nof the agents of the State to be entitled to grant of compensation,\r\nreserving liberty to claim further damages before a competent civil Court. This has been regarded by the Apex Court as a redeeming\r\nfeature. The arrest of the petitioner is held to be illegal in view of\r\nthe preceding analysis and contrary to the guidelines issued by the\r\nApex Court in the case of ARNESH KUMAR, the petitioner becomes\r\nentitled to compensation to be paid by the State which is assessed\r\nat Rs.3,00,000/-. This will not come in the way of the petitioner\r\nclaiming additional compensation in a competent civil Court in\r\nenforcement of a private law remedy.</b></p><p><b>19. The petitioner is an advocate, a responsible officer of any\r\nCourt of law in which he would profess to practice. Being an Officer\r\nof any Court, it is the primary duty of any Advocate to assist the\r\nCourt in dispensation of justice. This is the sacrosanct role\r\nassigned to an Advocate. Notwithstanding the petitioner being an\r\nAdvocate, he is illegally detained and assaulted, even after bringing\r\nit to the notice of the police that he is an Advocate, an Officer of the\r\nCourt. If an Advocate could be treated in the manner of what he\r\nhas been meted out in the case at hand, a common man will not be\r\nable to bear the brunt of repetition of such treatment. It is,\r\ntherefore, the perpetrators of such illegality and violators of law, as  is laid down by the Apex Court, cannot be left off the hook. They\r\nmust be proceeded against both in a departmental inquiry, to fix\r\naccountability, and under the criminal law to deter any such\r\niteration as, “injustice anywhere; is a threat to justice\r\neverywhere” - MLK Jr.. </b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20. For the aforesaid reasons, I pass the following:\r\nO R D E R\r\n<br>(i) Writ Petition is allowed in part.\r\n<br>(ii) The State shall pay a compensation of Rs.3,00,000/-\r\n(Rupees Three lakhs only) to the petitioner within two\r\nweeks from the date of receipt of a copy of this order.\r\n<br>(iii) The Director General and Inspector General of Police\r\nshall initiate a departmental enquiry against the 4th\r\nrespondent and his cohorts or any other officer, after\r\nidentifying those officers who have indulged in the act\r\nof illegal arrest and alleged assault on the petitioner.\r\n<br>(iv) The departmental enquiry shall be initiated within two\r\nweeks from the date of receipt of a copy of this order\r\nand if not already initiated. If already initiated, it shall\r\nbe concluded within three months from the date of\r\n58\r\nreceipt of a copy of this order. Till such time,\r\nsuspension of the 4th respondent or any other officer\r\nshall not be revoked.\r\n<br>(v) The State shall recover the compensation paid to the\r\npetitioner (in terms of direction No.(ii)), from the salary\r\nof the officers found guilty in the departmental enquiry.\r\n<br>(vi) The State shall file separate compliance reports before\r\nthe Registry of this Court of direction Nos.(ii), (iii), (iv)\r\nand (v).\r\n(vii) The Superintendent of Police, Mangaluru is directed to\r\nsupervise the investigation to be conducted in Crime\r\nNo.1 of 2023 registered before Punjalkatte Police\r\nStation.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> </span><br></b></p><p><b><br></b></p><p><b><br></b></p><p><br></p>', '69f8ef1793d0c44405f58536419039f6.jpg', '7f0972f0f260d93a5401399ffb9fb271.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-21', 1, '', '', '2023-01-21 13:27:44', '2023-01-21 13:28:50');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2587, 'knxZNTma2sfgsZRSgaCc63A92', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Reservation in promotion. Evaluation of inadequacy of representation need not be made at every stage of making fresh promotion. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>B. Gurumurthy and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 36133 of 2019 decided on 20 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Sunil Dutt Yadav.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P.No.8160/2020, W.P.No.36133/2019 and\r\nW.P.Nos.44851/2019 are filed by Officers of the Karnataka\r\nPower Transmission Corporation Limited (hereinafter\r\nreferred to as “KPTCL”) and belong to the General Category\r\n(in contradistinction to those officers who belong to\r\nreserved category consisting of Scheduled Castes and\r\nScheduled Tribes) and are aggrieved by their seniority\r\nvis-à-vis those who have been promoted on the basis of\r\nreservation and as the above writ petitions raise common\r\nlegal questions, all the petitions are taken up together and\r\nare disposed off by this common order.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.1 The Apex Court in the case of B.K.Pavitra I (supra)\r\nhad considered a challenge to the validity of the \"Karnataka\r\nDetermination of Seniority of the Government Servants\r\nPromoted on the Basis of Reservation (to the Posts in the\r\nCivil Services of the State) Act, 2002\" (“Reservation Act,\r\n2002) and had held that Sections 3 and 4 of the\r\nReservation Act, 2002 whereby the \"catch up rule\" was\r\ndone away with and had provided for consequential\r\nseniority was ultra-vires Article 14 and 16 of the\r\nConstitution of India on the ground that the exercise for\r\ndetermining inadequacy of representation, backwardness\r\nand the impact on overall efficiency had not preceded the\r\nenactment of the law as was mandated by the decision of\r\nthe Constitution Bench in M.Nagaraj and Others v. Union\r\nof India and Others3\r\n (M.Nagaraj). The Apex Court\r\nfurther held that the “catch up rule” should apply. It was\r\nhowever clarified that the judgment would not affect those\r\nwho had already retired and had taken financial benefits <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">It was further provided that promotions granted to serving\r\nemployees based on consequential seniority would be\r\ntreated as adhoc and liable to be reviewed. Seniority List\r\nwas directed to be revised in light of the judgment.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3.2 After the judgment in B.K.Pavitra-I (supra), the\r\nGovernment of Karnataka constituted the \"Rathnaprabha </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Committee\"4\r\n to submit a report on the backwardness and\r\ninadequacy of representation of Scheduled Castes and\r\nScheduled Tribes (hereinafter referred as SC/ST’s) in the\r\nState Civil Services and to study the impact of reservation\r\non overall administrative efficiency </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Committee submitted its report and on the basis\r\nof which the State Government enacted the \"Karnataka\r\nExtension of Consequential Seniority to Government\r\nServants promoted on the basis of Reservation Act, 2017\r\n(to the posts in the Civil Services of the State) (Karnataka </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Act 21 of 2018)\" [hereinafter referred to as “Reservation\r\nAct, 2018\"].</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5.5 WHETHER INADEQUACY IN REPRESENTATION MUST BE\r\nCALCULATED AT THE TIME OF EVERY PROMOTION ?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ii) It must be noted that Reservation Act of 2002 was\r\nearlier struck down on the ground that there was no\r\nexercise conducted to ascertain \"inadequacy of\r\nrepresentation\", \"backwardness\" and \"overall efficiency\"\r\nand the Act was set aside by virtue of the judgment in\r\nB.K. Pavitra I (supra). Subsequently, the Reservation\r\nAct of 2018 was introduced preceded by an exercise of\r\ncollection of data through the \"Rathnaprabha\r\nCommittee\". The validity of Reservation Act of 2018\r\nwas also challenged on similar grounds and same came\r\nto be upheld by the Apex Court in B.K. Pavitra II\r\n(supra).</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>xiv) Accordingly, to state that evaluation of inadequacy is to\r\nbe made at every stage of making fresh promotion\r\ncannot be accepted and runs contrary to the policy of\r\nthe State as reflected in the Government Orders and\r\nculminating in the Reservation Act of 2018.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5.6 OVER ALL ADMINISTRATIVE EFFICIENCY</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i) The mandate under Article 335 of the Constitution of\r\nIndia would require efficiency in administration to be a\r\nnecessary consideration so as to ensure that\r\nreservation in promotion does not result in affecting\r\nefficiency in administration</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>vii) The Apex Court in the case of B.K.Pavitra II\r\n(supra), has noticed that providing of reservation for\r\nSC & ST\'s is not at odds with the principle of\r\nmeritocracy.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> The Apex Court has observed that control can be\r\n exercised by taking appropriate action during\r\n officiation if he is found not suitable for the promotion <span style=\"font-size: 1rem;\">post. Accordingly, the question of efficiency in overall </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">administration being impacted by the Reservation Act or in\r\nits operation does not arise. This would also be the\r\nconclusion in light of the reasoning supra at Para 5.5 (xii)\r\nand the said argument having been rejected in\r\nB.K. Pavitra II (supra), cannot be revisited once again.\r\nHence, the controlling criteria of efficiency in overall\r\nadministration will not be an obstacle for reservation in\r\npromotion.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5.7 CHALLENGE TO CIRCULAR BEARING DPAR 186 SRS\r\n 2018 DATED 24.06.2019 (FREQUENTLY ASKED\r\n QUESTIONS)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i) The validity of the Government Order dated\r\n24.06.2019 (Frequently Asked Questions) has been\r\ncalled in question and various contentions have been\r\nadvanced including that the circular is silent as\r\nregards to the adherence to the judgment of the Apex\r\nCourt in R.K.Sabharwal (supra).</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>It must be noted that this Court has eventually\r\n held that no grounds are made to set aside the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">seniority list as the factual foundation is insufficient\r\n for such adjudication.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>iii) Accordingly, it is clear that manner of implementation\r\nof the Reservation Act, 2018 must be strictly in\r\nconformance with the provisions while taking note of\r\nthe Judgments of the Apex Court as laid down. The\r\nCircular of 24.06.2019 does contain certain\r\nambiguities including as regards adherence to the\r\ndirection in R.K.Sabharwal (supra) as clause 3.1 is\r\nambiguous.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>iv) It is the stand of the State in the context of the\r\nchallenge to the Government Order dated 24.06.2019,\r\nthat the Reservation Act, 2018 would prevail over the\r\nnotifications. If that were to be so in order to avoid\r\nany further confusion it would be appropriate that the\r\nGovernment Order that was specifically passed to\r\nimplement the Reservation Act, 2018 be withdrawn\r\nwhile reserving liberty to pass a fresh Government\r\nOrder containing comprehensive guidelines keeping in\r\nmind all the Judgments of the Apex Court enunciating\r\nthe law in particular as regards treatment of backlog\r\nvacancies in promotion, post based reservation,\r\naddressing the issue of those from the reserved\r\ncategory being eligible in general merit and such other\r\nrelevant aspects. This would go a long way in\r\nremoving the avoidable ambiguity in implementation\r\nof the Reservation Act, 2018. It is however clarified\r\nthat this direction made will not have any bearing on\r\nthe conclusion arrived at that no grounds are made <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">out for interfering with the Seniority list impugned in\r\nthe Writ Petitions as this court has not found any legal\r\nlacunae made out from the pleadings that provisions\r\nof the Reservation Act, 2018 have been violated. It is\r\nfurther clarified that observations made regarding the\r\nambiguities in the Government Order of 24.06.2019\r\nshould not be construed as amounting to an\r\nadjudication regarding the invalidity of the\r\nGovernment Order. The observations are made in the\r\ncontext of calling upon the State for removal of\r\nambiguity in executive instructions to ensure that the\r\nReservation Act, 2018 validity of which has been\r\nupheld by the Apex Court is implemented in its letter\r\nand spirit without giving rise to unnecessary litigation.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5.8 CHALLENGE TO FINAL SENIORITY LIST:-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>iii) The material on record and pleadings made do not\r\nmake out any further specific case fulfilling legal\r\nrequirement as regards violation of any other principle\r\nof service jurisprudence requiring intervention.\r\nAccordingly, the exercise of review in terms of\r\nReservation Act, 2018 does not call for any\r\ninterference in the absence of specific pleadings. Such\r\ncontentions may have to be raised if case is made out\r\nafter taking note of the adjudication made in the\r\npresent writ and if after applying the law laid down, a\r\ncase is made out regarding violation of any principle of\r\nservice jurisprudence relating to seniority.\r\nConsequently, the prayers sought for in the writ\r\npetitions are rejected however subject to observations <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">24.06.2019 and the direction to the State as contained\r\nsupra in Para 5.7 (iv).\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">iv) It cannot be stated that in light of all but\r\npetitioner no.9 in W.P.No.36133/2019 have attained\r\nsuperannuation. The adjudication in the present\r\nmatter has been reduced to answering a question\r\nwhich vis-a-vis the petitioners who have retired would\r\nremain as an academic answer.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Such contention however cannot be accepted as\r\n the final determination of seniority would have an\r\n implication as regards post-retirement emoluments as\r\n well.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>v) Further, the questions that have arisen are of\r\nsignificance and once adjudicated would bring about a\r\ncertainty in the implementation of the policy of\r\nreservation in promotion.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>vi) Questions raised are such that are brought before the\r\ncourt repeatedly and requires to be adjudicated. The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">time taken in deciding such questions where high\r\nranking officials who are closer to superannuation is\r\ninvolved would invariably result in the petitioners\r\nattaining superannuation during the course of the\r\nlitigation and if that were to be so in every matter the\r\nquestion would remain unresolved and accordingly,\r\ncontention that adjudication is not required as all but\r\npetitioner no.9 in W.P.No.36133/2019 have attained\r\nfinality cannot be accepted.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> Accordingly the petitions are disposed off in\r\n terms of the above.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'da7bb9cc2d2f854f7e6130f3f1f833dd.JPG', '37f742fa229038f207c3180798e1d69a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-24', 1, '', '', '2023-01-22 22:17:43', '2023-01-24 09:11:13'),
(2590, 'GZQJltHtBfuIRWB8c8k1qJVnw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'ESI Act applies irrespective of number of persons employed in a factory or establishment and notwithstanding that the number of persons employed therein at any time falls below the limit specified under the ESI Act. Supreme Court.   ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The ESI Corporation Vs M/s Radhika Theatre.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 312 of 2023 decided on 20 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice C.T. Ravikumar.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts leading to the present appeal in nutshell are as\r\nunder: -</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n2.1 That the respondent herein was running a Cinema Theatre\r\nsince 1981. It paid ESI contributions up to September,\r\n1989. However, thereafter, as its employees were less than\r\n20 in number, it did not pay the contributions. Therefore,\r\nthe appellant – corporation issued demand notices. The\r\nrespondent herein challenged the demand notices before\r\nthe EI Court by way of EIC No. 14/2003 containing, inter\r\nalia, that prior to the insertion of Sub-section (6) of Section\r\n1 of the ESI Act, 1948 w.e.f. 20.10.1989, it employed less\r\nthan 20 persons and therefore, it was not liable to be\r\ncovered under the provisions of the ESI Act. The EI Court\r\ndismissed the case vide order dated 13.12.2010. The order\r\npassed by the EI Court confirming the demand notices was\r\nthe subject matter of appeal before the High Court. Before\r\nthe High Court, it was the case on behalf of the respondent\r\n– original appellant that Sub-section (6) of Section 1 of the\r\nESI Act which came to be inserted on 20.10.1989 shall not\r\nbe made applicable retrospectively and the same would be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">effective only on or after 20.10.1989 and not prior to that\r\ndate. On the other hand, it was the case on behalf of the\r\nESI Corporation that the ESI Act being a social welfare\r\nlegislation, greater amplitude is required to be given to the\r\nsame, as, it is intended for the welfare of the workmen\r\nconcerned. It was submitted that as per amended Subsection (6) of Section 1, all the establishments shall be\r\ngoverned by the ESI Act, notwithstanding the fact that the\r\nnumber of persons engaged therein is less than the\r\nprescribed number. However, thereafter, by the impugned\r\njudgment and order the High Court has allowed the appeal\r\npreferred by the respondent herein taking the view that\r\namendment to Section 1 of the ESI Act by which Subsection (6) of Section 1 came to be inserted w.e.f.\r\n20.10.1989, the same shall not be applicable\r\nretrospectively and the same shall not be made applicable\r\nto an establishment, established prior to\r\n20.10.1989/31.03.1989.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Having heard learned counsel appearing on behalf of the\r\nappellant – corporation and having gone through the\r\nimpugned judgment and order passed by the High Court,\r\nthe short question which is posed for consideration of this\r\nCourt is whether with respect to the demand notices post\r\n20.10.1989 a factory or an establishment, established\r\nprior to 20.10.1989 shall be governed by the ESI Act\r\nnotwithstanding that the number of persons employed\r\ntherein at any time falls below the limit specified by or\r\nunder the ESI Act?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>An incidental question which is also posed for\r\nconsideration of this Court is whether the demand notices\r\nfor the period after 20.10.1989 i.e., from the date by which\r\nSub-section (6) of Section 1 of the ESI Act came be\r\ninserted can it be said that the amended Section 1 of the\r\nESI Act can be said to have been applied retrospectively?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Prior to insertion of Sub-section (6) of Section 1 of the ESI\r\nAct, only those establishments/factories engaging more\r\nthan 20 employees were governed by the ESI Act. However,\r\nthereafter, Sub-section (6) of Section 1 of the ESI Act has\r\nbeen inserted on 20.10.1989, and after 20.10.1989 there\r\nis a radical change and under the amended provision a\r\nfactory or establishment to which ESI Act applies would be\r\ngoverned by the ESI Act notwithstanding that the number <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of persons employed therein at any time falls below the\r\nlimit specified by or under the ESI Act. Therefore, on and\r\nafter 20.10.1989, irrespective of number of persons\r\nemployed a factory or an establishment shall be governed\r\nby the ESI Act. Therefore, for the demand notices for the\r\nperiod after 20.10.1989, there shall be liability of every\r\nfactory or establishment irrespective of the number of\r\npersons employed therein. With respect to such a notice it\r\ncannot be said that amended Section 1 inserting Subsection (6) is applied retrospectively as observed and held\r\nby the High Court. Only in case of demand notice for the\r\nperiod prior to inserting Sub-section (6) of Section 1 of the\r\nAct, it can be said that the same provision has been\r\napplied retrospectively. Therefore, the High Court has\r\ncommitted a very serious error in observing and holding\r\nthat even for the demand notices for the period subsequent\r\n20.10.1989 i.e., subsequent to inserting Sub-section (6) of\r\nSection 1 the said provision is applied retrospectively and\r\nthe High Court has erred in allowing the appeal and\r\nsetting aside the demand notices even for the period\r\nsubsequent to 20.10.1989. Sub-section (6) of Section 1 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">therefore, shall be applicable even with respect to those\r\nestablishments, established prior to\r\n31.03.1989/20.10.1989 and the ESI Act shall be\r\napplicable irrespective of the number of persons employed\r\nor notwithstanding that the number of persons employed\r\nat any time falls below the limit specified by or under the\r\nESI Act.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>8. In view of the above and for the reasons stated above, the\r\npresent appeal succeeds. The impugned judgment and\r\norder passed by the High Court is hereby set aside and the\r\ndemand notices for the period post 20.10.1989 are hereby\r\nrestored. Present appeal is accordingly allowed. No costs.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd4c953b4e08a688d6bc5c08d7de60547.jpeg', '0d2924c65041d1cf5a4a69e34be82589.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-24', 1, '', '', '2023-01-23 13:17:43', '2023-01-24 10:49:50'),
(2591, 'bxBtPPRekcfjKqytfEoEqqi8k', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Ownership and title has to be first established and proved to file the writ petition challenging the acquisition/lapse of acquisition proceedings. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Delhi Development Authority Vs Shyamo and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 365 of 2023 decided on 20 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved and dissatisfied with the impugned\r\njudgment and order dated 20.12.2017 passed by the High\r\nCourt of Delhi at New Delhi in Writ Petition (Civil) No.12174\r\nof 2015 by which the High Court has allowed the said writ\r\npetition preferred by the respondent no.1 herein – original\r\nwrit petitioner and has declared that the acquisition with <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respect to the land in question is deemed to have lapsed\r\nunder Section 24(2) of the Right to Fair Compensation and\r\nTransparency in Land Acquisition, Rehabilitation and\r\nResettlement Act, 2013 (hereinafter referred to as ‘the Act\r\n2013’), the Delhi Development Authority has preferred the\r\npresent appeal.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. From the impugned judgment and order passed by the\r\nHigh Court it appears that it was the specific case on behalf\r\nof the LAC before the High Court and so stated in the\r\ncounter affidavit filed by the LAC that a notification under\r\nSection 4 of the Land Acquisition Act, 1894 was issued on\r\n23.09.1989 for planned development of Delhi for the\r\nacquisition of the lands falling in Village Ghonda Gujaran\r\nKhadar. That award was declared on 19.06.1992 and the\r\nactual vacant physical possession of the subject land was\r\ntaken on 21.03.2007, out of which the original petitioner\r\nhas been claiming 1/12th share on the spot and handed over\r\nto the DDA after preparing possession proceedings on the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">spot. It was also stated that the recorded owners/heirs\r\nnever came forward to receive any compensation and hence\r\nthe same is lying unpaid. However, thereafter without even\r\ndeciding the question of ownership and title of the original\r\nwrit petitioner and leaving the same open and relying upon\r\nits earlier decision in the case of Gyanender Singh & Ors.\r\nvs. Union of India & Ors. in W.P. (C) No.1393 of 2014\r\ndecided on 23.09.2014, the High Court has passed the\r\nimpugned judgment and order and has declared the\r\nacquisition proceedings deemed to have lapsed on the\r\nground that the compensation was not tendered to the\r\noriginal writ petitioner.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Applying the law laid down by this Court in the case of\r\nIndore Development Authority (supra) to the facts of the\r\ncase on hand and more particularly when the possession of\r\nthe land in question was taken over by drawing the\r\npanchnama and preparing the possession proceedings and\r\nthe same was handed over to the DDA and that the original\r\nwrit petitioner was not the recorded owner and therefore <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">there was no question of tendering any compensation to him\r\nat the relevant time, the impugned judgment and order\r\npassed by the High Court declaring that the acquisition with\r\nrespect to the land in question is deemed to have lapsed is\r\nunsustainable.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. At this stage it is also required to be noted that the\r\noriginal writ petitioner was claiming 1/12th share in the land\r\nin question. However, without deciding the ownership and\r\ntitle of the original writ petitioner the High Court has\r\nentertained the writ petition filed by the respondent no.1\r\nherein – writ petitioner and has declared that the acquisition\r\nwith respect to the land in question is deemed to have\r\nlapsed. While deciding any ownership and title of the\r\noriginal writ petitioner in the land in question, the High\r\nCourt was not justified in entertaining the writ petition. For\r\nentertaining any writ petition the ownership and title has to\r\nbe first established and proved and only thereafter a person\r\nclaiming ownership and title can be permitted to file the writ </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petition challenging the acquisition/lapse of acquisition\r\nproceedings. Under the circumstances also the impugned\r\njudgment and order passed by the High Court is\r\nunsustainable.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>5. In view of the above and for the reason stated above\r\npresent appeal succeeds. The impugned judgment and\r\norder passed by the High Court is hereby quashed and set\r\naside. Consequently, the original writ petition filed by\r\nrespondent no.1 herein - original writ petitioner filed before\r\nthe High Court stands dismissed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\nPresent appeal is accordingly allowed. No costs.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7e396fb5e8453c71b2fd0bbee69d2b22.jpeg', '35f832685a4b2ee25e4ba5b1f67b252f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-24', 1, '', '', '2023-01-23 13:23:38', '2023-01-24 07:02:44'),
(2593, 'rUWN0mAFRVJK0XsGieSZNO0Ih', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'NDPS. Possession could mean physical possession with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on such knowledge. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sayyad Mohammad Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 10123 of 2022 decided on 11 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This is a successive bail petition filed under Section 439 of Cr.P.C. seeking regular bail of the petitioner/accused in Crime No.30/2021 of E and N Crime Police Station, Mangaluru COP, Mangaluru City, for the offence punishable under Sections 25 and 3 of Indian Arms Act, 1959 and Sections 8(c) and 20(B)(II)(b) of Narcotic Drugs & Psychotropic Substances Act, 1985 (‘the NDPS Act’ for short).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Having heard the learned counsel for the petitioner and also learned High Court Government Pleader appearing for the respondent-State, admittedly, this is a successive bail petition and the facts also disclose that this petitioner was in the car bearing No.KA-03-MK-0649 along with accused No.3 in which <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">they were transporting 60 kilograms of ganja and accused Nos.2 and 4 were in the Eicher Insulator lorry wherein, 217.740 kilograms of ganja was seized and both the car as well as the lorry were seized at the spot. When such being the case, the Court has to take note of the gravity of the offence and possession of commercial quantity of ganja.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">8. This Court would like to rely upon the judgment of the Apex Court in UNION OF INDIA THROUGH NARCOTICS CONTROL BUREAU, LUCKNOW VS. MD. NAWAZ KHAN reported in (2021) 10 SCC 100, wherein the Apex Court discussed with regard to the finding that mere absence of possession of the contraband on the person of the accused does </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not mean that the accused was not in “conscious possession” of the contraband and rather, the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case and the standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. The latter being the situation in the present case, the term “possession” could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on such knowledge.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. The Apex Court also in Para No.32 of the judgment held that, issue of whether there was compliance of the procedure laid down under Section 42 of the NDPS Act is a question of fact and further in Para No.33, the Apex Court observed that, in the complaint that was filed on 16.10.2019 it is alleged that at about 14.00 hours on 26.03.2019, information was received that between 15.00 – 17.00 hours on the same</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">day, the three accused persons would be reaching Uttar Pradesh. The complaint states that the information was immediately reduced to writing. Therefore, the contention that Section 42 of the NDPS Act was not complied with is prima facie misplaced. The question is one that should be raised in the course of the trial. The circumstances are crucial to assessing whether the High Court has correctly evaluated the application for bail, having regard to the provisions of Section 37 of the NDPS Act. The respondent was traveling in the vehicle all the way from Dimapur in Nagaland to Rampur in Uttar Pradesh with the coaccused. The complaint notes that the CDR analysis of the mobile number used by the respondent indicates that the respondent was in regular touch with the other accused persons who were known to him. The Apex Court also taken note of the quantity of contraband found in the vehicle is a commercial quantity. The contraband was concealed in the vehicle in which the respondent was traveling with the co-accused. Having taken note of these materials on record, the Apex Court set aside the order of granting bail.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. The judgment referred (supra) is aptly applicable to the case on hand since, this accused was traveling along with accused No.3 in the skoda car and the same was followed by a lorry, wherein 217.740 grams of ganja was seized and the Court has to take note of the quantity of the contraband found in the vehicle and the contraband was concealed in the vehicle in which they were traveling. In the case on hand, this Court, while rejecting the bail petition of this petitioner, in Para No.6 has given the reason and taken note of the quantity of ganja seized in the vehicle and also taken note of the fact that accused No.1 distributed the ganja to other accused persons. When such being the material on record, this Court reserved liberty to the petitioner to approach this Court after receipt of the FSL report. Now, the FSL report is also received and the same confirms that the seized article is a ganja and FSL report also not helps the petitioner. Further, learned High Court Government Pleader appearing for the respondent-State also brought to notice of this Court the criminal antecedents of this petitioner and registration of cases against this petitioner in Crime Nos.153/2020 and 173/2021 which shows that there are criminal antecedents <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">against this petitioner. When such being the case, I do not find any grounds to enlarge the petitioner on bail in a successive bail petition and there is no changed circumstance to enlarge the petitioner on bail in a successive bail petition.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The bail petition is rejected. </b></p>', 'b92d8b0c8980eb2c4d228d786f2897ac.JPG', '512d0e9a8a42ad3e594ab6c0cc2d81ab.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-25', 1, '', '', '2023-01-23 14:40:24', '2023-01-25 09:04:39'),
(2598, '0CEPpJx9o5hT8hnKGlubc7zLa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Registration of the FIR under Sections 30 and 35 of the Arms Act which are non- cognizable cases without the order of a Magistrate is illegal. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Attar Ahmed and others Vs The Assistant Conservator of Police and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 4567 of 2018 decided on 10 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The first respondent filed a private complaint under\r\nSection 200 of Cr.P.C., for the offences punishable under\r\nSections, 9, 27, 31, 39, 71(A), 50, 51, 52, 55 of the Wild\r\nLife (Protection) Act, 1972, Section 71(a) of Karnataka\r\nForest Act, 1963, and Section 50 of the Wild Life Protection <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Act, alleging that petitioners-accused illegally entered into\r\nthe forest land and shot Sambar using two guns.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The allegations in the FIR registered for the\r\noffences under Sections 3, 7, 25, 27 and 30 of the Arms\r\nAct, 1959 is that the petitioners/accused had used two\r\nlicensed guns for killing sambars in violation of the\r\nconditions of license.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 8. Section 3 of the Arms Act, 1959 deals with\r\ngrant of license in acquisition and possession of firearms\r\nand ammunition. Section 7 of the Arms Act, 1959 prohibits\r\nthe acquisition or possession, or of manufacture or sale of\r\nprohibited arms or prohibited ammunition. Section 25 of\r\nthe Act specifies punishment for certain offences. Section\r\n27 of the Act specifies punishment for use of arms etc.,\r\nSection 30 of the Act specifies the punishment for\r\ncontravenes of license or rule. Section 35 of the Act\r\nspecifies criminal responsibility of the persons in\r\noccupation of premises in certain cases. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. In the instant case, the allegations made in the\r\nFIR, even accepted on the face of it, constitute the\r\noffences only under Sections 30 and 35 of the Act. The\r\noffences under Sections 30 and 35 of the Act are\r\npunishable with imprisonment for a term of six months or\r\nwith fine amount of Rs.2,000/- or with both. Hence,\r\noffences under the said provisions are non cognizable and\r\nthe police before registering FIR were required to obtain\r\norder from the learned Magistrate as specified under\r\nSection 155(2) of Cr.P.C. The police without obtaining the\r\norder of the learned Magistrate as specified under Section\r\n155(2) of Cr.P.C has registered the FIR and the same is\r\none without authority of law. Hence, continuation of\r\ninvestigation against petitioners/accused in the absence of\r\nprior permission from learned Magistrate will be an abuse\r\nof process of law. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> i. Criminal petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c190049a456664344f5f4c86fb21e772.jpeg', '078f7d6b54fac69cfeebaca79bb50180.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-25', 1, '', '', '2023-01-24 16:12:37', '2023-01-25 11:02:15');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2599, 'bOwtLFW7pO8fCeyLihPA59CAg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sale of property pursuant to proceedings under the SARFAESI Act for the default committed by the borrower cannot be given the colour of criminal offences. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.R. Girish and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 1723 of 2017 decided on 11 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">The 2nd respondent filed a private complaint alleging that\r\nhe and his brothers are owners of the subject property and a\r\ncharge was created on the said subject property for securing the\r\nloan and in order to clear the loan, the accused Nos.1 and 6\r\ncame forward stating that they would clear the loan if they were\r\npaid Rs.5 lakh towards commission and they would secure the\r\nloan on the subject property from another bank and accordingly\r\nentered into an agreement and mortgaged the subject property\r\nwith the Rajajinagar Cooperative Bank for a period of fifteen\r\nyears and obtained the loan with the Rajajinagar Cooperative\r\nBank and cleared the loan within the time specified. Thereafter,\r\naccused no.1 and 6 mortgaged the subject property with the\r\nKarnataka Bank on the basis of the nominal sale deed alleged to\r\nhave been executed by the 2nd respondent and his brothers in\r\nfavour of the accused Nos.1 for the purpose of raising loan from\r\nRajajinagar Cooperative Bank. The accused no.1,2,3,4,and 6 in\r\nconnivance with the other staff of the Karnataka Bank, created\r\nthe sale certificate in respect of the subject property in favour of\r\naccused No.2. The learned Magistrate referred the complaint to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the police for investigation under Section 156(3) of Cr.PC. The\r\npolice have registered the case for the offences punishable under\r\nSections 406, 420, 443, 120B and 34 of IPC. Taking exception\r\nto the same, the accused Nos.4 and 5 are before this Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. The only allegation against the accused Nos.4 and 5\r\nis that they conspired with other accused and brought the\r\nsubject property for sale in an auction and conveyed the same to\r\nthe accused No.2. Except the said allegation, there is no\r\nallegation as against the petitioners - accused Nos.4 and 5. The\r\nsubject property was brought for sale in an auction under the\r\nprovisions of the SARFAESI Act, 2002 upon default in repayment\r\nof loan by the accused No.1, who was the borrower of the loan. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Hence, the action of the accused Nos.4 and 5 in conveying the\r\nsubject property to the accused No.2 in a public auction is under\r\nthe provisions contained in the SARFAESI Act, 2002.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n 6. Section 32 of the SARFAESI Act, 2002, specifies that\r\nno prosecution or other legal proceedings shall lie against the\r\nofficer for anything done or omitted to be done in good faith\r\nunder this Act. In view of the clear bar under Section 32 of the\r\nSARFAESI Act, 2002, the registration of the FIR against the\r\npetitioners - accused Nos.4 and 5 is impermissible.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. The offence alleged against the petitioners - accused\r\nNos.4 and 5 is cognizable and the private complaint under\r\nSection 200 of Cr.PC was filed by the 2nd respondent without\r\ncomplying with Sections 154(1) and 154(3) of Cr.PC. Hence, the\r\ncomplaint filed without complying with the said provisions is not\r\nmaintainable as held by the Hon\'ble Supreme Court in the case\r\nof Priyanka Srivastava (supra).\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 9. In view of the proceeding analysis, the continuation\r\nof investigation against the accused Nos.4 and 5 will be an abuse\r\nof process of law. <span style=\"font-size: 12pt;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> i) Criminal petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'bcf796a4b8aad698d2dfd004f25a4df5.jpeg', '6dc5ebc316dea9e680eb127b528c7185.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-25', 1, '', '', '2023-01-24 16:19:21', '2023-01-25 03:21:35'),
(2600, 'GFSUSzx3e3avdzMWrEHhQG0l2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Diploma holders in Medicine and Rural Health Care cannot practice modern scientific medicine including allopathic medicine. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Baharul Islam and others Vs The Indian Medical Association and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 502-503 of 2023 decided on 24 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B.R. Gavai and Justice B.V. Nagarathna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. In these appeals, the appellants have assailed the legality and\r\ncorrectness of the order dated 30.10.2014 passed by the Division\r\nBench of the Gauhati High Court in W.P.(C) No. 5789/2005,\r\nwhereby the High Court by allowing the Writ Petition struck down\r\nthe Assam Rural Health Regulatory Authority Act, 2004 (hereinafter\r\nreferred to as ‘Assam Act’ or the ‘State Act’ for the sake of brevity)\r\nwhich was enacted by the Assam State Legislature.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The facts giving rise to the present appeals and transferred\r\ncases, in a nutshell are that on 18.09.2004, the Assam Legislature\r\nenacted the Assam Act. The said Act was enacted to provide for the\r\nestablishment of a regulatory authority in the State of Assam to\r\nregister the Diploma holders in Medicine and Rural Health Care\r\n(“DMRHC”), to regulate their practice in medicine in rural areas and\r\nto regulate the opening of medical institutions to impart education\r\nand training for the course of Diploma in Medicine and Rural Health\r\nCare.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.3. Having regard to the fact that the Jorhat Medical Institute was\r\ncreated as envisaged under the State Act, and about four-hundred\r\nstudents had been admitted to the diploma course and awarded\r\ncertificates on having passed the Course, State of Assam made a\r\nplea for impleadment of the Regulatory Authority, the Jorhat\r\nMedical Institute and the persons who had obtained diploma\r\ncertificates and had been engaged as Rural Health Practitioners on\r\nthe basis of such qualification.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Having heard the learned counsel for the respective parties and on\r\nperusal of the material on record, the following points would arise\r\nfor our consideration:<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i) Whether the Assam Act is invalid and null and void on the\r\nground that the Assam State Legislature did not possess\r\nlegislative competence to enact the said Act?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\nii) Whether the ‘2015 Act’ is ultra vires the Constitution?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>iii) What Order?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. The following aspects of the matter emerge when the\r\nprovisions of the Assam Act are considered in juxtaposition with\r\nthe corresponding provisions of the Central Act:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i) The Central Act operates in the area of modern scientific\r\nmedicine, in all its branches, vide Section 2(f). The Assam Act\r\nseeks to regulate the practice of allopathic medicine, in rural\r\nareas, vide Section 2(g). Essentially, modern scientific\r\nmedicine, includes allopathy. In other words, modern scientific\r\nmedicine is the genus and allopathic medicine is a species of\r\nmodern scientific medicine. This view has been adopted by this\r\nCourt in A.K. Sabhapathy and Dr. Mukhtiar Chand.\r\nTherefore, the practice in modern scientific medicine including\r\nallopathic medicine, is governed by the Central Act. Hence, in\r\norder to be recognised as a practitioner in any branch of\r\nmodern scientific medicine, including allopathic medicine, the\r\nqualifications that must mandatorily be obtained are those\r\nlisted in the Schedules to the Central Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ii) Further, Section 17 of the Assam Act provides that persons\r\nholding a Diploma in Medicine and Rural Health Care after\r\nsuccessful completion of the course instituted under the Act,\r\nwould be registered as Rural Health Practitioners and would\r\nbe eligible to practise ‘medicine’ and Health Care in rural areas\r\nof Assam. The Assam Act permits Diploma holders to practise <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">‘medicine’, i.e., allopathic medicine, in rural areas of Assam.\r\nWe are unable to accept that allopathic medicine, which is\r\ngoverned by the Central Act, may be practised by persons who\r\ndo not possess the qualifications contemplated under the\r\nSchedules to the Central Act.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>iii) Practise in modern scientific medicine, including allopathic\r\nmedicine, must be permitted only after having successfully\r\nundergone the academic rigor, as prescribed under the Central\r\nAct. The Central Act, in Section 33 authorizes the Council to\r\nprescribe inter alia, the courses and period of study, practical\r\ntraining to be undertaken, subjects, examination and\r\nstandards of proficiency required to be achieved. Therefore, it\r\nis problematic to hold that without having successfully gone\r\nthrough meticulous training as contemplated under the\r\nCentral Act, a person may practise medicine.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\niv) On a close reading of Section 15 of the Central Act, in\r\nconjunction with Section 24 of the Assam Act, we find that\r\nRural Health Practitioners possessing a Diploma under the\r\nAssam Act have been authorised to perform certain functions\r\nidentical to those performed by medical practitioners who\r\npossess qualifications prescribed under the Central Act. Such\r\nfunctions include treatment of common illnesses, prescription\r\nof certain categories of drugs, performance of minor surgeries, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">issuance of illness and death certificates. Performance of such\r\nfunctions by persons who do not possess the qualifications\r\nprescribed under the Central Act, could, in our view, have\r\ndangerous consequences</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>It is to be noted that insofar as Entry 25 of List III is\r\nconcerned, there are dual restrictions which would operate on the\r\nlegislative competence of a State Legislature to enact any law under\r\nthe said Entry: first is, if such a law is to be made by the State\r\nLegislature, it is always subject to Entries 63, 64, 65 and 66 of List\r\nI or the Union List, in respect of which only the Parliament has the\r\npower to enact a law. The second restriction is with regard to the\r\nsubject of the Entry as a whole. If the Parliament has made any law\r\nwhich is outside the scope of Entries 63, 64, 65 and 66 of List I but\r\nwithin the scope of Entry 25 of List III, in such a case Article 254\r\nand the principles of repugnancy would apply if a State Law is in\r\nconflict with such Parliamentary Law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>n the instant case the law made by the State Legislature,\r\nnamely, the Assam Act is hit by the first of the aforesaid two\r\nrestrictions; hence, it is null and void as the Assam Legislature\r\nlacked the legislative competence to enact such a Law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\nIn light of the aforesaid discussion, we are of the considered\r\nview that Rural Health Practitioners enlisted under the Assam Act, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">are underqualified to perform functions similar to those performed\r\nby medical practitioners registered in accordance with the Central\r\nAct. In order to be recognised as a practitioner in any branch of\r\nmodern scientific medicine, including allopathic medicine, the\r\nqualifications that must mandatorily be obtained are those listed in\r\nthe Schedules to the Central Act.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Legislature cannot directly overrule a judicial decision.\r\nBut when a competent Legislature retrospectively removes the\r\nsubstratum or foundation of a judgment to make the decision\r\nineffective, the said exercise is a valid legislative exercise provided\r\nit does not transgress on any other constitutional limitation. Such\r\nlegislative device which removes the vice in previous legislation\r\nwhich has been declared unconstitutional is not considered an\r\nencroachment on judicial power but an instance of abrogation. The\r\npower of the sovereign legislature to legislate within its field, both\r\nprospectively and retrospectively cannot be questioned. It would be\r\npermissible for the legislature to remove a defect in earlier\r\nlegislation pointed out by a constitutional court in exercise of its\r\npowers by way of judicial review. This defect can be removed both\r\nretrospectively and prospectively by a legislative process and the\r\nprevious actions can also be validated. But where there is a mere\r\nvalidation without the defect being legislatively removed, the\r\nlegislative action will amount to overruling the judgment by a\r\nlegislative fiat which is invalid.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In light of the aforesaid discussion, the petitions challenging\r\nthe vires of the Assam Community Professional (Registration and\r\nCompetency) Act, 2015 i.e., Transferred Case (C) Nos. 24 and 25 of\r\n2018 are liable to be dismissed, and are accordingly dismissed. The\r\nsaid Act has been enacted with a view to restore the position of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">diploma holders in medicine and to give them continuity in service.\r\nThe said Act has been enacted by a valid legislative exercise, and\r\ndoes not transgress any other constitutional limitation and in\r\naccordance with Entry 25 of List III of the Seventh Schedule and is\r\nnot in conflict with the IMC Act, 1956 and the rules and regulations\r\nmade thereunder as per Entry 66 of List I of the Seventh Schedule.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. Before parting with this case, it is necessary to advert to the\r\nreasoning of the Division Bench of the High Court which has held\r\nin paragraph 15 of its judgment dated 30.10.2014 that the Central\r\nLegislation, namely, the IMC Act, 1956, fully covers the field and\r\ntherefore, the impugned legislation passed by the Assam State\r\nLegislature concerning the Diploma Course in Allopathic Medicine\r\nwas null and void. In this context, Article 254 of the Constitution\r\nhas been adverted to and it has been observed that, on account of\r\nrepugnancy and there being no Presidential assent as required\r\nunder Article 254, the Assam Act is null and void.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Conclusion:\r\n25. In the result, we arrive at the following conclusions:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(i) Entry 25 of List III of the Seventh Schedule of the\r\nConstitution of India deals with the subject education\r\nwhich is in the Concurrent List under which both the\r\nParliament or the Union Legislature as well as the\r\nState Legislatures have legislative competence to\r\nlegislate. However, Entry 25 of List III is subject to,\r\ninter alia, Entry 66 of List I which is the Union List.\r\nEntry 66 of List I deals with coordination and\r\ndetermination of standards in institutions for higher\r\neducation or research and scientific and technical\r\ninstitutions. Thus, when any law is made under Entry\r\n25 of List III by a State Legislature, the same is always\r\nsubject to Entry 66 of List I. In other words, if any law\r\nmade by the Parliament comes within the scope of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Entry 66 of List I, then the State Legislation would\r\nhave to yield to the Parliamentary law.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Thus, where one Entry is made “subject to”\r\nanother Entry, it would imply that, out of the scope of\r\nthe former Entry, a field of legislation covered by the\r\nlatter Entry has been reserved to be specifically dealt\r\nwith by the appropriate legislature.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">(ii) In the instant case, it is held that the IMC Act, 1956\r\nis a legislation made by the Parliament for the purpose\r\nof coordination and determination of standards in\r\nmedical education throughout the Country. The said\r\nlaw, along with the Rules and Regulations made\r\nthereunder are for the purpose of determination of\r\nstandards of medical education throughout India.\r\nThus, determination of standards in medical\r\neducation in India is as per the IMC Act, 1956 which\r\nis a Central Law. This is in respect of modern medicine\r\nor allopathic medicine within the scope of Entry 66 of\r\nList I and not under Entry 25 of List III of the Seventh\r\nSchedule. Therefore, a State Legislature which passes\r\na law in respect of allopathic medicine or modern\r\nmedicine would be subject to the provisions of the IMC </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Act, 1956 and the Rules and Regulations made\r\nthereunder. This would imply that no State\r\nLegislature has the legislative competence to pass any\r\nlaw which would be contradictory to or would be in\r\ndirect conflict with the IMC Act, 1956 and the Rules\r\nand Regulations made thereunder. In other words, the\r\nstandard in medical education insofar as modern\r\nmedicine or allopathy is concerned, having been set\r\nby the IMC Act, 1956 and the Rules and Regulations\r\nmade thereunder or by any subsequent Act in that\r\nregard, such as the Medical Council of India Act,\r\n2019, the State Legislature has no legislative\r\ncompetence to enact a law which is in conflict with the\r\nlaw setting the standards of medical education in the\r\ncontext of modern medicine or allopathic medicine,\r\nwhich has been determined by Parliamentary\r\nLegislation as well as the Rules. In other words, a\r\nState Legislature has no legislative competence to\r\nenact a law in respect of modern medicine or\r\nallopathic medicine contrary to the said standards\r\nthat have been determined by the Central Law.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In view of the above conclusion, we hold that\r\ndecision of the Gauhati High Court holding that the\r\nAssam Act to be null and void, is just and proper.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>However, the Gauhati High Court has held that\r\nthe State had no legislative competence to enact the\r\nAssam Act in view of Article 254 of the Constitution\r\non the premise that the IMC Act and the Rules and\r\nRegulations made thereunder were holding the field\r\nand hence, on the basis of the doctrine of occupied\r\nfield, the Assam Act was struck down as being\r\nrepugnant to the Central Law. In view of the aforesaid\r\nconclusion, we are of the view that the said reasoning\r\nis incorrect. It is reiterated that the IMC Act and the\r\nRules and Regulations made thereunder, which are all\r\nCentral legislations, have been enacted having regard\r\nto Entry 66 of List I and would prevail over any State\r\nLaw made by virtue of Entry 25 of List III of the\r\nConstitution.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) Hence, in view of the Indian Medical Council Act, 1956\r\nand the Rules and Regulations made thereunder, the\r\nAssam Act, namely, the Assam Rural Health\r\nRegulatory Authority Act, 2004, is declared to be null <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and void, in view of the Assam Legislature not having\r\nthe legislative competence to enact the said Law.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iv) Consequently, the subsequent legislation, namely, the\r\nAssam Act of 2015 i.e., the Assam Community\r\nProfessionals (Registration and Competency) Act,\r\n2015, enacted pursuant to the judgment of the\r\nGauhati High Court, is a valid piece of Legislation as\r\nit has removed the basis of the impugned judgment\r\npassed by the Gauhati High Court. The 2015 Act is\r\nalso not in conflict with the IMC, Act, 1956. This is\r\nbecause the Central Act namely, IMC, Act, 1956 does\r\nnot deal with Community Health Professionals who\r\nwould practise as allopathic practitioners in the\r\nmanner as they were permitted to practise under the\r\nAssam Act, in rural areas of the State of Assam.\r\nHence, by a separate legislation the Community\r\nHealth Professionals have been permitted to practise\r\nas such professionals. The said legislation of 2015 is\r\nnot in conflict with IMC, Act, 1956 and the rules and\r\nregulations made thereunder. Hence, the Act of 2015\r\nis not hit by Entry 66 of List I of the Constitution and\r\nis within the legislative competence of the State <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Legislature under the Seventh Schedule of the\r\nConstitution.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>26. In the result, the Civil Appeals arising out of SLP(C) Nos.\r\n32592-32593 of 2015 as well as TC (C) No. 24 of 2018 and TC (C)\r\nNo. 25 of 2018 stand dismissed. Pending application(s), if any, shall\r\nstand disposed of.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">27. Parties to bear their respective costs.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6662bf19944225e4d92cadcb119b3016.jpeg', '4e29640f292e80584323c40204df754f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-30', 1, '', '', '2023-01-25 13:20:28', '2023-01-30 18:04:14'),
(2601, 'laBANU3hGwwtVjL8cgrKLfzAp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Failure to pay fashion event organiser does not amount to fraud under Section 420 IPC unless there are clear allegations of intention to defraud from the inception. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sushma Earaiah Vs M/S. Dream Merchants.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 3083 of 2019 decided on 15 February 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The respondent filed a private complaint under Section 200\r\nof Cr.PC alleging that the complainant and the petitioner-accused\r\nentered into a sponsorship contract/agreement and the petitioner –\r\naccused had agreed to pay a sum of Rs.22,00,000/- for sponsoring\r\nminimum of six editions of Bangalore Fashion Events starting from\r\nJuly, 2015 to January 2018. The complainant conducted one\r\nedition of Bangalore Fashion Event from July 23 to July 26, 2015\r\nand the second edition Bangalore Fashion Event from 4th to 7th\r\nFebruary, 2016 for which the complainant was entitled to receive a\r\nsum of Rs.23,10,000/- from the petitioner – accused. However,\r\nthe petitioner – accused has refused to pay the said amount as\r\npromised to the complainant and thereby has committed the\r\noffences punishable under Sections 109, 120B, 420 read with\r\nSection 149 of IPC. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The learned Magistrate has taken cognizance of the\r\naforesaid offences which are cognizable on a private complaint filed\r\nunder Section 200 of Cr.PC by the respondent – complainant.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The complainant having not filed an affidavit along with\r\ncomplaint for having complied with the requirement of Sections\r\n154(1) and 154(3) of Cr.PC, the complaint filed by the respondent\r\nis not maintainable in view of the decision of the Apex Court in the\r\ncase of Priyanka Srivastava and another (supra)</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. In the present case, the learned Magistrate without\r\nconducting the preliminary enquiry as specified under Section\r\n202(1) of Cr.PC which mandates that before summons are issued\r\nagainst the accused residing beyond the territorial jurisdiction, the\r\nlearned Magistrate has to conduct preliminary enquiry as held by\r\nthe Apex Court in the case of Birla(supra) has issued summons to\r\nthe petitioner – accused contrary to Section 202(1) of Cr.PC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. To constitute an offence punishable under Section 420\r\nof IPC, there must be a specific allegation that there must be a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dishonest intention from inception to cheat. In the present case,\r\nthere is no specific allegation that from the date of execution of the\r\nagreement, there was dishonest intention on the part of the\r\npetitioner – accused to cheat the respondent – complainant. In the\r\nabsence of essential ingredients so as to constitute the commission\r\nof offence punishable under Section 420 of IPC, taking cognizance\r\nof the said offence by the learned Magistrate is impermissible.\r\nEven otherwise, if the allegations made in the complaint are\r\naccepted on the face of it, utmost, tantamount to breach of terms\r\nand conditions of the contract. The dispute between the parties\r\narises out of breach of terms and conditions contained in the\r\ncontract, however, the complaint is filed by giving criminal texture\r\nso as to harass the petitioner – accused with an oblique motive to\r\npressurize the petitioner – accused to pay the amount alleged to be\r\ndue to the complainant under the agreement.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i) Criminal petition is allowed; </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9664fbf7f6ff481ed1451e706b4778a0.jpeg', '67f910f57014bee8c8a991afa40278a1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-30', 1, '', '', '2023-01-25 13:59:10', '2023-01-30 10:35:13'),
(2602, 'vZ5kPfQbhbj9K6tY0StbO2vyG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Tahasildar has no power to evict a person from Government lands under Section 39 of the Karnataka Land Revenue Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Balappa and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 105775 of 2022 decided on 10 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice E.S. Indiresh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. Sri. Laxman T. Mantagani, learned counsel for\r\nthe petitioners invited the attention of the Court to Section\r\n39 of the Karnataka Land Revenue Act, 1964 and argued </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">hat, the impugned notice issued by the Tahasildar,\r\nRaibag, is liable to be set aside as he is an incompetent\r\nauthority to issue notice under Section 39 of the Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. Having heard the learned counsel appearing for\r\nthe parties, and on careful examination of the contents of\r\nthe notice, wherein, it is stated that, notice is issued under\r\nSection 94(3) and 39(i) of the Karnataka Land Revenue\r\nAct, 1964.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n Section 39 of the Karnataka Land Revenue Act, 1964\r\nreads as under: <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>“39. Manner of evicting any person\r\nwrongfully in possession of land.- Whenever it is\r\nprovided by this Act or any other law for the time\r\nbeing in force that the Deputy Commissioner may or\r\nshall evict any person wrongfully in possession of\r\nland or where any order to deliver possession of\r\nland has been passed against any person under this\r\nAct, such eviction shall be made or such order shall <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be executed, as the case may be. </span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. Having taken note of the language employed in\r\nSection 39 of the Act, whereby the Deputy Commissioner <span style=\"font-size: 12pt;\">is the authorized person to take action against such\r\npersons for evicting them in possession of the land\r\nbelonging to the Government, and therefore, I am of the\r\nview that, the Tahasildar, Raibag is incompetent person to\r\nissue notice under Section 39 of the Act.\r\n 6. In that view of the matter, the impugned notice\r\nissued by the 3rd respondent dated 08.12.2022\r\n(Annexures-D to K) is set aside. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '12a3e3b0567a938c2479485883395423.JPG', 'a3b28d86ed0974069b2e52babbdf0e9d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-28', 1, '', '', '2023-01-25 15:20:15', '2023-01-28 03:21:43');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2603, 'y0yUI0ZnUZLDI4V5Q1XjxpPGs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Estoppel. Though a son cannot release his share in the self-acquired property of his father during the lifetime of the father, a duly executed release deed prevents him and his children from claiming the property when the succession opens. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Elumalai and another Vs M. Kamala and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 521-522 of 2023 decided on 25 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.M. Joseph and Justice Hrishikesh Roy.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. One Shri Sengalani Chettiar was married to one\r\nRukmini. The said marriage produced a son, namely, Shri\r\nChandran. The appellants are the sons of Shri Chandran.\r\nSengalani Chettiar married again this time with one\r\nSmt. Kuppammal. From the second marriage Sengalani\r\nChettiar had 5 daughters and a son. The controversy in\r\nthis case relates to A-Schedule property in the suit </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for partition filed by two children out of the 6\r\nchildren born to Sengelani Chettiar from his second\r\nmarriage. The property in dispute was the self-acquired\r\nproperty of Shri Sengalani Chettiar. In regard to the\r\nsaid property, Chandran,the father of the appellants\r\nhad executed a Release Deed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. The case of the plaintiffs to exclude the\r\nappellants was based on the Release Deed executed by\r\nthe father of the appellants. The trial Court however\r\nfound that the Release Deed in question was a void\r\ndocument for the reason that Chandran executed the\r\nRelease Deed in 1975 while his father Sengalani\r\nChettiar was alive. It is found that the Release Deed\r\nwould not be a bar for the appellants to inherit the\r\nproperty of their grandfather Sengalani Chettiar. The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">plaintiffs were only found to be eligible to get only\r\n2/7 share. Plaintiffs were accordingly given a decree\r\nof 2/7 share inter alia. The suit came to be dismissed\r\nas far as ‘B’schedule property is concerned.\r\nPlaintiffs filed AS No.883 OF 2009. Defendants 1, 3 and\r\n6 filed appeal AS No.718 of 2009. By the impugned\r\njudgment the High court has allowed these appeals and\r\nfound that the appellants were not entitled to claim\r\nany share in the property of the deceased Sengalani\r\nChettiar. The foundational premise for overturning the\r\ndecree of the trial court was furnished by the dicta\r\nlaid down by this court in Gulam Abbas v. Haji Kayyam\r\nAli and others1. Briefly put, the premise is that\r\ninsofar as Shri Chandran executed a deed of Release\r\nhaving obtained consideration from his father, the\r\nappellants would stand estopped from laying a claim to\r\na share in A-Schedule property. The court also noticed\r\nthe death of the second plaintiff and found that the\r\nfirst plaintiff and her siblings namely, defendants 1\r\nto 3 alone would entitled to succeed to the share of\r\nsecond plaintiff. In other words, after finding that </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the plaintiffs D1 to D3 and D6 would be entitled to\r\none-sixth share each in A-Schedule property and in view\r\nof the death of the second plaintiff, the first\r\nplaintiff and defendants 1 to 3 were found to get 5/24\r\nshare and the 6\r\nth defendant was to get 4/24 share. It\r\nis feeling aggrieved by the denial of share in Aschedule property that the defendants 4 and 5 are\r\nbefore this Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The property in question has been found to be the\r\nseparate property of Sengalani Chettiar. He died in\r\n1988. Sengalani Chettiar had married twice. From his\r\nfirst marriage, was born Shri Chandran. Shri Chandran\r\npre-deceased his father in the year 1978. Being the\r\nchildren of the pre-deceased son, the appellants would\r\nordinarily have inherited the share as decreed by the\r\ntrial court in this case. The terms of the Release Deed\r\nrecites that Shri Chandran has released his share in\r\nrespect of the property. It is also clear that the\r\nRelinquishment made by Shri Chandran was based on his\r\nhaving received valuable consideration. Shri Jayanth\r\nMuth Raj, learned Senior Counsel made an attempt to\r\ncontend that the Release Deed is about the property\r\nbelonging to “us”. Nothing turns on the same and we are <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">inclined to proceed on the basis of the finding\r\nrendered by both the courts that the property was the\r\nself-acquired property of Shri Sengalani Chettiar.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Section 6 of the Transfer of Property Act\r\nenumerates property which can be transferred. It\r\ndeclares that property of any kind may be transferred\r\nexcept as otherwise provided by the Transfer of\r\nProperty Act or by any other law for the time being in\r\nforce. Section 6(a) declares that a chance of an heir\r\napparent succeeding to an estate, the chance of a\r\nrelation obtaining a legacy on the death of a kinsman\r\nor other mere possibility of a like nature cannot be\r\ntransferred. A living man has no heir. Equally, a\r\nperson who may become the heir and entitled to succeed\r\nunder the law upon the death of his relative would not\r\nhave any right until succession to the estate is opened\r\nup. When Shri Sengalani Chettair, the father of Shri\r\nChandran, was alive, Shri Chandran his son had at best\r\na spes successonis. Unlike a co-parcener who acquires\r\nright to joint family property by his mere birth, in\r\nregard to the separate property of the Hindu, no such\r\nright exists. Thus, there can be no doubt that the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Release Deed may not by itself have the effect of a\r\ntransfer of the rights of Shri Chandran in favour of\r\neither his father or the minor son of his father from\r\nthe second marriage.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. In the facts of this case, the case of the\r\nappellants may be noted. It is their case, that Shri\r\nChandran, their father, himself did not have any right\r\nin the plaint schedule property. This is for the reason\r\nthat being the separate property of Shri Sengalani\r\nChettair, Shri Chandran did not have any right by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">birth. He himself had only, what is described a spec\r\nsuccessionis within the meaning of Section 6(a) of the\r\nTransfer of Property Act. It is not even the case of\r\nthe appellants that they had any independent right in\r\nthe plaint schedule property either at the time of\r\ntheir birth or at the time when their father died or\r\neven when their grandfather Shri Sengalani Chettair\r\ndied in 1988. The right, which they claim, at the\r\nearliest point, can arise only by treating the property\r\nas the separate property of Shri Sengalani Chettair on\r\nhis death within the meaning of Section 8 of the Hindu\r\nSuccession Act. Therefore, we are unable to discard the\r\ndeed of release executed by their father Shri Chandran\r\nin the year 1975 as a covenant within the meaning of\r\nSection 8 of the ‘1956 Act.’</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. It will be noticed that the father of the\r\nappellants, by his conduct, being estopped, as found\r\nby us, is the fountainhead or the source of the title\r\ndeclared in Section 8(a) of the Hindu Succession Act.\r\nIt is, in other words, only based on the relationship\r\nbetween Shri Chandran and the appellants, that the\r\nright under Section 8(a) of the Hindus Succession Act,\r\npurports to vest the right in the appellants. We would\r\nthink, therefore, that appellants would also not be in\r\na position to claim immunity from the operation of the\r\nPrinciple of Estoppel on the basis of Section 8(a) of\r\nthe Hindu Succession Act. If the principle in Gulam\r\nAbbas (supra) applies, then, despite the fact that what was purported to be released by Shri Chandran, was a\r\nmere spec successonis or expectation his conduct in\r\ntransferring/releasing his rights for valuable\r\nconsideration, would give rise to an estoppel. The\r\neffect of the estoppel cannot be warded off by persons\r\nclaiming through the person whose conduct has generated\r\nthe estoppel. We also find no merit at all in the\r\nattempt at drawing a distinction based on religion. The\r\nprinciple of estoppel applies without such distinction.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. The only further contention which remains to be\r\ndealt with is that raised by Shri Jayanth Muth Raj,\r\nlearned Counsel. He made an attempt to contend that the\r\nprinciple in Gulam Abbas (supra) may not be available\r\nin view of the factual matrix. It is his case that in\r\nthe said case, the brothers received a benefit and\r\nthereafter gave-up the rights, which, as it was found,\r\nthey did not possess at the time. The position in this\r\ncase, however, is not similar. We are of the view that\r\nthis argument ignores the play of the facts. Having\r\nreceived valuable consideration and allowed his father\r\nShri Sengalani Chettair to proceed on the basis that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">he was free to deal with the property without the\r\nprospect of being haunted by any claim whatsoever as\r\nregards the property by Shri Chandran, a clear estoppel\r\nsprang into existence following the receipt of\r\nconsideration by Shri Chandran. Estoppel would shut\r\nout in equity any claim otherwise either by Shri\r\nChandran or his children, viz., the appellants.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>25. In such circumstances, we find no merit in the\r\nappeals. The appeals will stand dismissed. Parties will\r\nbear their own costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fa3c59595a7d714a7859ec9af5fa75d1.JPG', '0c807d7d3aadb3c1e8f39478bc153354.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-28', 1, '', '', '2023-01-26 20:41:21', '2023-01-28 10:25:37'),
(2605, 'xPcoiRvgMJSiOE7bUA1oH07CO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Wild Life (Protection) Act, 1972. Cognizance cannot be taken merely on the basis of the final report submitted by the Range Forest Officer. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ashraf M Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 8257 of 2018 decided on 12 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Accused herein was in possession of common Languor\r\n(Presbytis entellus), 4 Parrots (Psittacidae) and 2 Ducks\r\n(Anatidae). The Range Forest Officer concerned conducted a\r\nraid and sized the said animal and birds from the custody of the\r\npetitioner-accused. Thereafter, the Range Forest Officer\r\nsubmitted a charge sheet before the learned Magistrate for the\r\noffences under Sections 2(16)(b), 9, 39, 49 & 51 of the Wild Life\r\n(Protection) Act, 1972.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">6. The Range Forest Officer registered the FIR for the\r\naforesaid offences alleged against the petitioner-accused.\r\nSection 55 of the Act, 1972 specifies that the cognizance of the\r\noffences under the provision of the Act, 1972 can be taken only </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">upon a complaint in writing by a person enumerated in Section\r\n55 (a to c). In other words, the cognizance cannot be taken on\r\nthe basis of the final report submitted by the Range Forest\r\nOfficer. Hence, the cognizance taken on the basis of the final\r\nreport is impermissible and stands vitiated.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> i) The Criminal Petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '131c90ecacf3f1ff0c6411ca3007f070.jpeg', '3a59d088a923746e033490c1671941dd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-30', 1, '', '', '2023-01-27 13:48:48', '2023-01-30 03:36:43'),
(2608, 's1qyJcSGx9BViGfgXfZ7Gci6D', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Review Petition portrays that Muslim women are subordinate to the will of their male counterparts. Clergies are unable to digest the unilateral right of Muslim women to divorce by khula”. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>XX Vs XX.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>RP 936 of 2021 decided on 28 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-size: 12pt;\">Justice A. Muhamed Mustaque and </span>Justice C.S. Dias.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">This is a typical review portraying that Muslim\r\nwomen are subordinate to the will of their male\r\ncounterparts. This review does not look innocuous at\r\nthe instance of the appellant, but rather appears to\r\nhave been fashioned and supported by clergies and the\r\nhegemonic masculinity of the Muslim community who are\r\nunable to digest the declaration of the right of\r\nMuslim women to resort to the extra-judicial divorce\r\nof khula, unilaterally. The appeal from which this\r\nreview arises was filed challenging a divorce decree <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">granted to a Muslim wife under the Dissolution of\r\nMuslim Marriages Act, 1939. The appeal was filed by\r\nthe husband. In the appeal, we noticed the existence\r\nof the right of Muslim women to resort to the extrajudicial divorce of khula, allowing her to terminate\r\nher marriage. Thereafter, the appeal was disposed of,\r\nrecording khula and also delineating the different\r\nmethods of extra-judicial divorce applicable to\r\nMuslim spouses. We declared that the right to\r\nterminate the marriage at the instance of a Muslim\r\nwife is an absolute right, conferred on her by the\r\nholy Quran and is not subject to the acceptance or\r\nthe will of her husband. In the review petition filed\r\nby the husband, he does not dispute the authority\r\ngiven to the Muslim wife to invoke khula, but rather\r\nraises, as a ground of review, the procedure\r\nacknowledged by this Court to invoke the remedy of\r\nkhula by the Muslim wife. </span></span><span style=\"font-size: 12pt;\">We declared that khula\r\nwould be valid if the following conditions are\r\nsatisfied:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i. A declaration of repudiation or termination\r\nof marriage by the wife.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ii. An offer to return dower or any other\r\nmaterial gain received by her during marital\r\ntie.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">i</span><span style=\"font-size: 12pt;\">ii.An effective attempt for reconciliation was\r\npreceded before the declaration of khula.  </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>26. The nature of khula is in the form of a\r\n‘permissible’ action, to the Muslim wife who seeks to\r\nexercise the option of terminating her marriage. This\r\nreflects the autonomy of choice exercised by the\r\nwife. The will of the wife so expressed cannot be\r\nrelated to the will of the husband who has not\r\nexpressed his choice to terminate the marriage. The\r\nvery idea of categorization under the law, of an <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">action as permissible, is to retain that action\r\nwithin the domain of the person who exercises the\r\noption, by relating it with his or her autonomy.\r\nExtending such actions to the will of another would\r\ncertainly keep the action out of the category of\r\n‘permissible’. The law being categorized so, it\r\ncannot be whittled down or constricted by the will of\r\nher husband upon whom no authority is conferred to\r\nenforce such permission. It is relevant to note that,\r\nthere is no qualifying obligation on the husband in\r\nthe form of the five categories of defining law,\r\neither in the Quran or the Sunnah, to accept or\r\nrepudiate the will expressed by the wife to make the\r\npermissible activity contingent or dependant upon any\r\nqualifying factors.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. In the absence of any other method in the\r\nmanner suggested by the counsel for the review\r\npetitioner and others,to effectuate the right\r\nconferred on Muslim women being prevalent in this\r\ncountry, the Court’s authority in conferring upon\r\nMuslim women the right to invoke khula at her own\r\nwill, will have to be respected.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>35. Istihsan is a doctrine for the Courts to\r\nadopt and apply, if there are no other methods to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">streamline the rights conferred on believers to act\r\nupon. So, assuming that the argument of the review\r\npetitioner holds good, in the absence of any\r\nmechanism in the country to recognize the termination\r\nof marriage at the instance of the wife when the\r\nhusband refuses to give consent, the court can simply\r\nhold that khula can be invoked without the\r\nconjunction of the husband.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n 36. We, therefore, find no reason to review the\r\njudgment. We record our deepest appreciation to\r\nAdvocate Hussain C.S who is not a practitioner before\r\nthis court, having argued the case with meticulous\r\npreparation, despite the fact that we cannot accept\r\nhis views and opinions.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ff6f8df288b6c344a6b90ea38b85e7b0.jpeg', '55e60c039d80a7cc1a8b62f3c96f91eb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-31', 1, '', '', '2023-01-30 15:35:54', '2023-01-31 10:33:54'),
(2609, 'IqN9e4BoAXmtTyvMVKcku62bx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SC/ST (Prevention of Atrocities) Act. Mere taking the name of the caste of the victim would not make it an offence unless it is with an intention to insult the person belonging to the said caste. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shailesh Kumar V Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 2797 of 2022 decided on 17 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court calling in question\r\nregistration of crime in Crime No.115 of 2020 for offences\r\npunishable under Sections 506, 504, 143, 147, 149, 323, 324 and\r\n363 of the Indian Penal Code, 1860 and has sought quashment of\r\nthe charge sheet filed for offences punishable under Sections 143,\r\n147, 323, 324, 365, 504, 506 r/w 149 of IPC, Section 3(1)(r) &\r\n3(1)(s) of the Scheduled Castes and the Scheduled Tribes\r\n(Prevention of Atrocities) Act, 1989 (‘the Act’ for short) and also\r\ncalled in question consequential order of taking cognizance for the\r\naforesaid offences in the charge sheet.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Shorn of unnecessary details, the facts as projected by the\r\nprosecution are as follows:-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\"> A complaint comes to be registered by the 2nd respondent on\r\n14-06-2020 alleging that the petitioner along with others had\r\nindulged in certain acts which would become punishable under\r\nSections 506, 504, 143, 147, 149, 323, 324 and 363 of the IPC.\r\nThough the complaint was that certain abuses were made against\r\nthe son of the 2nd respondent, the FIR comes to be registered only\r\nfor offences punishable under the IPC as afore-quoted. The\r\nbackground to the allegation is a game of cricket. The son of the\r\ncomplainant and the petitioner along with their friends had played\r\ncricket match in which the son of the complainant and his team had\r\nlost the match, due to which, some altercations took place between\r\nthe petitioner and the son of the complainant and his friends. </span><span style=\"font-size: 12pt;\">Several allegations are made to the effect that the son of the\r\ncomplainant was taken away and beaten. It is in that light the FIR\r\ncomes to be registered against the petitioner and one Punit. The\r\nPolice conduct investigation, record statements of several persons\r\nwho during their statements have revealed that certain abuses in\r\nfilthy language were made by the petitioner and others on the son\r\nof the 2nd respondent and others. Based upon those statements a\r\ncharge sheet comes to be filed including the offences punishable\r\nunder the Act. The learned Sessions Judge in terms of his order\r\ndated 01-03-2021 takes cognizance of the offences so alleged in\r\nthe charge sheet and registers as Special Case No.55 of 2021 for\r\noffences punishable under Sections 143, 147, 323, 324, 365, 504,\r\n506 r/w 149 of IPC and Section 3(1)(r) & (s) of the Act. It is this\r\norder of taking cognizance that drives the petitioner to this Court in\r\nthe subject petition. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">7. The afore-narrated facts are not in dispute. The complaint\r\ncomes to be registered by the 2nd respondent on 14.06.2020\r\nalleging that her son had been beaten/kidnapped and assaulted.\r\nBased on the complaint so registered by the 2nd respondent, a\r\ncrime comes to be registered in Crime No.115 of 2020 for offences\r\npunishable under Sections 506, 504, 143, 147, 149, 323, 324 and\r\n363 of IPC. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Since the crime comes to be registered for the\r\naforesaid offences on the basis of the complaint, I deem it </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appropriate to notice the complaint. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The allegation in the complaint is that the son of the complainant\r\none Manoj and his friend Pradeep were having food near a shop on\r\n14-06-2020 at about 4.30 p.m. At that time, the petitioner along\r\nwith 30 people comes there with two wheeler vehicles and a car\r\nand while hurling abuses against the son of the complainant and\r\nanother attacked them with weapons and beer bottles causing\r\nbloodstained injuries and also assaulted them after taking them in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the car. There was no complaint made that the petitioner had\r\nhurled abuses taking the name of the caste of the son of the\r\ncomplainant. The allegation was only using filthy language and\r\nthreatening the life of the son of the complainant. Accordingly, , the\r\naforesaid crime comes to be registered.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. It is an admitted fact that the investigation, in the case at\r\nhand, is conducted by the Police Sub-Inspector and charge sheet is\r\nfiled by the Police Sub-Inspector. Therefore, there is violation of\r\nRule 7 of the Rules, inasmuch as there is no order directing <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">investigation to be conducted by the Deputy Superintendent of\r\nPolice.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. Insofar as the other offences are concerned, there is\r\nundoubtedly material right from the complaint till the charge sheet\r\nfor offences punishable under Sections 323, 324, 365, 504 and 506\r\nof IPC which are all to be tried. There is ample evidence in the\r\nstatements and the narration in the summary of the charge sheet\r\nalbeit prima facie to bring home those offences. It is for the\r\npetitioner to come out clean in the offences under the IPC. Since\r\nthe offences are grave in nature, there can be no interference\r\ninsofar as offences under the IPC are concerned.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> (i) Criminal Petition is allowed in part. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f87d49f817129322b20bf123f4b7f8b4.jpeg', 'fe998f923d4420d50e67c7f7ce81258f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-31', 1, '', '', '2023-01-30 16:01:08', '2023-01-31 09:04:17'),
(2610, '6Kyo9DzvRTfJXubSdxrx9OhJf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cancellation of tender after tender process got concluded, award being notified, and contract being signed amounts to arbitrary exercise of power and violative of tenets of Article 14 of the Constitution of India. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Allengers Medical System Ltd Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 17634 of 2022 decided on 25 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Brief facts that lead the petitioner to this Court in the\r\nsubject petition, as borne out from the pleadings, are as follows:-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The petitioner claims to be a registered Company under the\r\nCompanies Act, 1956 and is in the business of procurement of\r\nmedical and allied equipments and distribution thereto and claims\r\nto have a Pan India presence. The 2nd respondent/ Karnataka State\r\nMedical Supplies Corporation Limited (hereinafter referred to as ‘the\r\nCorporation’ for short) issues a notice inviting tenders dated\r\n27-10-2021 for procurement of 100mA Portable X-ray machines,\r\nICU Cots and Syringe Pump. It was to be a two cover tender, in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">terms of the Karnataka Transparency in Public Procurement Act,\r\n1999 (‘the Act’ for short) and the Karnataka Transparency in Public\r\nProcurement Rules, 2000 (for short ‘the Rules’). The issue in the lis\r\nconcerns only item No.2 in the Tender i.e., 100mA Portable X-ray\r\nmachines. The petitioner finding itself eligible, submits the tender in\r\nterms of the tender Notification along with another tenderer.\r\nTherefore, there were two tenderers pursuant to the tender\r\nnotification dated 27.10.2021.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>0. The afore-narrated facts are not in dispute. The link in\r\nthe chain of events would read as follows: The records reveal that\r\na tender was notified for supply and installation of ICU cots, 100mA\r\nX-ray machine and Syringe pump for Taluk and District level\r\nhospitals under Covid-19. This appears to have been abandoned. A\r\nre-tender notification is issued on 27-10-2021. The title of the\r\ntender reads as follows: “Re-tender for supply and installation of\r\nICU Cots, 100mA Portable X-Ray Machine and Syringe Pump for\r\nTaluk and District level Hospitals under Covid-19”. Pursuant to the\r\nnotification of tender, the records further reveal that there were 12\r\nparticipants, out of whom two were held to be technically qualified\r\nand the petitioner emerged as the successful bidder pursuant to\r\nhim getting qualified both in technical and financial aspects.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n11. The price quoted by the petitioner for each portable X-ray\r\nmachine was ` 19,34,640/-. After the petitioner emerging as a\r\nsuccessful bidder, he was called for negotiations by the 2nd\r\nrespondent. The negotiation was successful and the petitioner\r\nreduced the unit price of the machine. After the reduction a\r\nnotification of award of contract to the petitioner was issued. The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner had submitted his bid only for 100mA x-ray machines.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">14. Article 14 of the Constitution of India mandates that\r\nevery action of the State should pass through the golden thread of\r\nnon-arbitrariness. It is not in dispute that the 2nd respondent is a\r\nState under Article 12 of the Constitution of India. Being a State it\r\nwould not behove of the 2nd respondent to act arbitrarily; arbitrary,\r\nI say so, for the reason that the petitioner emerges as the\r\nsuccessful bidder in the tender pursuant to a notice inviting tender\r\nwhich was by itself a re-tender; petitioner was called for price\r\nnegotiation; price negotiation was successful and the award was\r\nnotified in favour of the petitioner on 02-03-2022. The Notification\r\nof award directed execution of contract and production of demand\r\ndraft for ` 56,87,841/-. The petitioner complied with all the\r\naforesaid conditions i.e., executes the agreement and submits the\r\ndemand draft for the amount way back in the month of March </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2022. All that remained was issuance of purchase order by the 2nd\r\nrespondent in favour of the petitioner.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. Months pass by, but no purchase order was issued. The\r\npetitioner represented, even then no purchase order was issued. It\r\nis at that juncture the petitioner knocked the doors of this Court.\r\nWhat comes about, after issuance of notice is the cancellation of\r\ntender by way of bald and cryptic order/communication. In the\r\nconsidered view of this Court, the act of the 2nd respondent\r\ncancelling the tender, after the tender process got concluded,\r\naward being notified, and contract being signed with the petitioner,\r\nwould amount to arbitrary exercise of power and violative of tenets\r\nof Article 14 of the Constitution of India</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16... </span>Rule 14 empowers the Tender Inviting Authority to make\r\nchanges only in the tender up to the stage of notification of award.\r\nOnce the award is notified, it is statutorily impermissible to\r\nwithdraw or cancel the tender except for violation of the tender\r\nconditions. In the light of the aforesaid admitted facts, the\r\ncommunication dated 03-11-2022 cannot but be held to be\r\narbitrary and being arbitrary, it cannot be permitted to operate and\r\nrequires to be obliterated and issuance of consequential directions\r\nto the respondents to issue purchase order in favour of the\r\npetitioner.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Writ Petition is allowed and the communication dated\r\n03-11-2022 of the 2nd respondent stands quashed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3b3d5d8736cf39e58aa90ed857fd8dc8.jpeg', 'e77d7d6fb366a7a17dc3cdd371a6a036.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-31', 1, '', '', '2023-01-30 16:28:22', '2023-01-31 03:27:48'),
(2618, 'chIQKtpYvZ42859RWCLS4ft83', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Tribunal under the Maintenance and Welfare of Parents and Senior Citizens Act can invalidate Gift only if the Gift has condition that the transferee shall provide basic amenities and basic physical needs to the transferor. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>S.K. Umashankar Vs Lakshmamma and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 12263 of 2018 decided on 16 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Jyoti Mulimani.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Heard, the contentions urged on behalf of\r\nlearned counsel for petitioner and learned HCGP and\r\nperused the Writ papers along with Annexure with utmost\r\ncare.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> Sri.K.V.Shyamaprasada, learned counsel for the\r\npetitioner submits that the father of the petitioner\r\nexecuted a registered Gift Deed in favor of petitioner on\r\n14.01.2011 in respect of immovable property bearing\r\nNo.5/3 and 5/4, old katha No.22, new katha No.320/341 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">measuring 40 X 30 feet situated at Hagadur Village,\r\nK.R.Puram Hobli, Bengaluru East Taluk, Bengaluru.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The mother of the petitioner - Smt.Lakshmamma\r\ninitiated proceedings under the provision of Maintenance\r\nand Welfare of Parents and Senior Citizens Act, 2007 (for\r\nshort \'the Act\'). The Assistant Commissioner and\r\nChairman, Tribunal of Maintenance and Welfare of Parents\r\nand Senior Citizens, Bengaluru North Sub-Division,\r\nBengaluru - fifth respondent vide order dated:22.11.2017,\r\ndeclared the Gift Deed as void and directed the petitioner\r\nand three others to restore the vacant possession of the\r\nproperty in favor of Smt.Lakshmamma and if necessary by\r\ntaking the help of jurisdictional police.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Learned counsel for the petitioner submitted that the\r\nTribunal constituted under the Act can declare any\r\ntransaction as ‘void’ only if, the transfer by way of Gift is\r\nsubject to condition that the transferee shall provide basic\r\namenities and basic physical needs to the transferor. In <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the instant case, the Gift Deed is unconditional and\r\nabsolute. It does not contain any such condition.\r\nTherefore, the impugned order is unsustainable in law. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sri.B.K.Shyamaprasada., learned counsel appearing\r\non behalf of petitioner is right in his submission that\r\ntransfer by way of Gift can be declared as void, only if\r\nsuch transfer is made subject to the condition that\r\ntransferee shall provide basic amenities and basic physical\r\nneeds to the transferor. A perusal of the Gift Deed shows\r\nthat the gift deed is absolute and no such condition is\r\nimposed in the gift deed. In the circumstances, the order\r\npassed by the Assistant Commissioner declaring the Gift\r\nDeed as void is unsustainable in law.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The result is that the Writ Petition will be allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '00e49556721f8f2891501947537429a5.JPG', '8ed065ec98574c2b56f86d31d9c1487a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-01', 1, '', '', '2023-01-31 16:32:52', '2023-02-01 10:39:27');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2613, '4bvLJVIlqjkyozpidxH3Awn2I', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Citizens residing in rural areas have an equal right to access healthcare services, by duly qualified staff. They cannot be allowed to be treated by Diploma holders in Medicine and Rural Health Care. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Baharul Islam and others Vs The Indian Medical Association and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 502-503 of 2023 decided on 24 January 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice B.R. Gavai and Justice B.V. Nagarathna.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. In these appeals, the appellants have assailed the legality and correctness of the order dated 30.10.2014 passed by the Division Bench of the Gauhati High Court in W.P.(C) No. 5789/2005, whereby the High Court by allowing the Writ Petition struck down the Assam Rural Health Regulatory Authority Act, 2004 (hereinafter referred to as ‘Assam Act’ or the ‘State Act’ for the sake of brevity) which was enacted by the Assam State Legislature.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. The facts giving rise to the present appeals and transferred cases, in a nutshell are that on 18.09.2004, the Assam Legislature enacted the Assam Act. The said Act was enacted to provide for the establishment of a regulatory authority in the State of Assam to register the Diploma holders in Medicine and Rural Health Care (“DMRHC”), to regulate their practice in medicine in rural areas and to regulate the opening of medical institutions to impart education and training for the course of Diploma in Medicine and Rural Health Care.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3.3. Having regard to the fact that the Jorhat Medical Institute was created as envisaged under the State Act, and about four-hundred students had been admitted to the diploma course and awarded certificates on having passed the Course, State of Assam made a plea for impleadment of the Regulatory Authority, the Jorhat Medical Institute and the persons who had obtained diploma certificates and had been engaged as Rural Health Practitioners on the basis of such qualification.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Having heard the learned counsel for the respective parties and on perusal of the material on record, the following points would arise for our consideration:<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">i) Whether the Assam Act is invalid and null and void on the ground that the Assam State Legislature did not possess legislative competence to enact the said Act?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">ii) Whether the ‘2015 Act’ is ultra vires the Constitution?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">iii) What Order?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">20. The following aspects of the matter emerge when the provisions of the Assam Act are considered in juxtaposition with the corresponding provisions of the Central Act:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">i) The Central Act operates in the area of modern scientific medicine, in all its branches, vide Section 2(f). The Assam Act seeks to regulate the practice of allopathic medicine, in rural areas, vide Section 2(g). Essentially, modern scientific medicine, includes allopathy. In other words, modern scientific medicine is the genus and allopathic medicine is a species of modern scientific medicine. This view has been adopted by this Court in A.K. Sabhapathy and Dr. Mukhtiar Chand. Therefore, the practice in modern scientific medicine including allopathic medicine, is governed by the Central Act. Hence, in order to be recognised as a practitioner in any branch of modern scientific medicine, including allopathic medicine, the qualifications that must mandatorily be obtained are those listed in the Schedules to the Central Act.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">ii) Further, Section 17 of the Assam Act provides that persons holding a Diploma in Medicine and Rural Health Care after successful completion of the course instituted under the Act, would be registered as Rural Health Practitioners and would be eligible to practise ‘medicine’ and Health Care in rural areas of Assam. The Assam Act permits Diploma holders to practise&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">‘medicine’, i.e., allopathic medicine, in rural areas of Assam. We are unable to accept that allopathic medicine, which is governed by the Central Act, may be practised by persons who do not possess the qualifications contemplated under the Schedules to the Central Act.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">iii) Practise in modern scientific medicine, including allopathic medicine, must be permitted only after having successfully undergone the academic rigor, as prescribed under the Central Act. The Central Act, in Section 33 authorizes the Council to prescribe inter alia, the courses and period of study, practical training to be undertaken, subjects, examination and standards of proficiency required to be achieved. Therefore, it is problematic to hold that without having successfully gone through meticulous training as contemplated under the Central Act, a person may practise medicine.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">iv) On a close reading of Section 15 of the Central Act, in conjunction with Section 24 of the Assam Act, we find that Rural Health Practitioners possessing a Diploma under the Assam Act have been authorised to perform certain functions identical to those performed by medical practitioners who possess qualifications prescribed under the Central Act. Such functions include treatment of common illnesses, prescription of certain categories of drugs, performance of minor surgeries,&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">issuance of illness and death certificates. Performance of such functions by persons who do not possess the qualifications prescribed under the Central Act, could, in our view, have dangerous consequences</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">It is to be noted that insofar as Entry 25 of List III is concerned, there are dual restrictions which would operate on the legislative competence of a State Legislature to enact any law under the said Entry: first is, if such a law is to be made by the State Legislature, it is always subject to Entries 63, 64, 65 and 66 of List I or the Union List, in respect of which only the Parliament has the power to enact a law. The second restriction is with regard to the subject of the Entry as a whole. If the Parliament has made any law which is outside the scope of Entries 63, 64, 65 and 66 of List I but within the scope of Entry 25 of List III, in such a case Article 254 and the principles of repugnancy would apply if a State Law is in conflict with such Parliamentary Law.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">n the instant case the law made by the State Legislature, namely, the Assam Act is hit by the first of the aforesaid two restrictions; hence, it is null and void as the Assam Legislature lacked the legislative competence to enact such a Law.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">In light of the aforesaid discussion, we are of the considered view that Rural Health Practitioners enlisted under the Assam Act,&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">are underqualified to perform functions similar to those performed by medical practitioners registered in accordance with the Central Act. In order to be recognised as a practitioner in any branch of modern scientific medicine, including allopathic medicine, the qualifications that must mandatorily be obtained are those listed in the Schedules to the Central Act.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The Legislature cannot directly overrule a judicial decision. But when a competent Legislature retrospectively removes the substratum or foundation of a judgment to make the decision ineffective, the said exercise is a valid legislative exercise provided it does not transgress on any other constitutional limitation. Such legislative device which removes the vice in previous legislation which has been declared unconstitutional is not considered an encroachment on judicial power but an instance of abrogation. The power of the sovereign legislature to legislate within its field, both prospectively and retrospectively cannot be questioned. It would be permissible for the legislature to remove a defect in earlier legislation pointed out by a constitutional court in exercise of its powers by way of judicial review. This defect can be removed both retrospectively and prospectively by a legislative process and the previous actions can also be validated. But where there is a mere validation without the defect being legislatively removed, the legislative action will amount to overruling the judgment by a legislative fiat which is invalid.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">In light of the aforesaid discussion, the petitions challenging the vires of the Assam Community Professional (Registration and Competency) Act, 2015 i.e., Transferred Case (C) Nos. 24 and 25 of 2018 are liable to be dismissed, and are accordingly dismissed. The said Act has been enacted with a view to restore the position of the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">diploma holders in medicine and to give them continuity in service. The said Act has been enacted by a valid legislative exercise, and does not transgress any other constitutional limitation and in accordance with Entry 25 of List III of the Seventh Schedule and is not in conflict with the IMC Act, 1956 and the rules and regulations made thereunder as per Entry 66 of List I of the Seventh Schedule.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">23. Before parting with this case, it is necessary to advert to the reasoning of the Division Bench of the High Court which has held in paragraph 15 of its judgment dated 30.10.2014 that the Central Legislation, namely, the IMC Act, 1956, fully covers the field and therefore, the impugned legislation passed by the Assam State Legislature concerning the Diploma Course in Allopathic Medicine was null and void. In this context, Article 254 of the Constitution has been adverted to and it has been observed that, on account of repugnancy and there being no Presidential assent as required under Article 254, the Assam Act is null and void.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Conclusion: 25. In the result, we arrive at the following conclusions:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(i) Entry 25 of List III of the Seventh Schedule of the Constitution of India deals with the subject education which is in the Concurrent List under which both the Parliament or the Union Legislature as well as the State Legislatures have legislative competence to legislate. However, Entry 25 of List III is subject to, inter alia, Entry 66 of List I which is the Union List. Entry 66 of List I deals with coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. Thus, when any law is made under Entry 25 of List III by a State Legislature, the same is always subject to Entry 66 of List I. In other words, if any law made by the Parliament comes within the scope of&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Entry 66 of List I, then the State Legislation would have to yield to the Parliamentary law.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Thus, where one Entry is made “subject to” another Entry, it would imply that, out of the scope of the former Entry, a field of legislation covered by the latter Entry has been reserved to be specifically dealt with by the appropriate legislature.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">(ii) In the instant case, it is held that the IMC Act, 1956 is a legislation made by the Parliament for the purpose of coordination and determination of standards in medical education throughout the Country. The said law, along with the Rules and Regulations made thereunder are for the purpose of determination of standards of medical education throughout India. Thus, determination of standards in medical education in India is as per the IMC Act, 1956 which is a Central Law. This is in respect of modern medicine or allopathic medicine within the scope of Entry 66 of List I and not under Entry 25 of List III of the Seventh Schedule. Therefore, a State Legislature which passes a law in respect of allopathic medicine or modern medicine would be subject to the provisions of the IMC&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Act, 1956 and the Rules and Regulations made thereunder. This would imply that no State Legislature has the legislative competence to pass any law which would be contradictory to or would be in direct conflict with the IMC Act, 1956 and the Rules and Regulations made thereunder. In other words, the standard in medical education insofar as modern medicine or allopathy is concerned, having been set by the IMC Act, 1956 and the Rules and Regulations made thereunder or by any subsequent Act in that regard, such as the Medical Council of India Act, 2019, the State Legislature has no legislative competence to enact a law which is in conflict with the law setting the standards of medical education in the context of modern medicine or allopathic medicine, which has been determined by Parliamentary Legislation as well as the Rules. In other words, a State Legislature has no legislative competence to enact a law in respect of modern medicine or allopathic medicine contrary to the said standards that have been determined by the Central Law.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">In view of the above conclusion, we hold that decision of the Gauhati High Court holding that the Assam Act to be null and void, is just and proper.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">However, the Gauhati High Court has held that the State had no legislative competence to enact the Assam Act in view of Article 254 of the Constitution on the premise that the IMC Act and the Rules and Regulations made thereunder were holding the field and hence, on the basis of the doctrine of occupied field, the Assam Act was struck down as being repugnant to the Central Law. In view of the aforesaid conclusion, we are of the view that the said reasoning is incorrect. It is reiterated that the IMC Act and the Rules and Regulations made thereunder, which are all Central legislations, have been enacted having regard to Entry 66 of List I and would prevail over any State Law made by virtue of Entry 25 of List III of the Constitution.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(iii) Hence, in view of the Indian Medical Council Act, 1956 and the Rules and Regulations made thereunder, the Assam Act, namely, the Assam Rural Health Regulatory Authority Act, 2004, is declared to be null&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and void, in view of the Assam Legislature not having the legislative competence to enact the said Law.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(iv) Consequently, the subsequent legislation, namely, the Assam Act of 2015 i.e., the Assam Community Professionals (Registration and Competency) Act, 2015, enacted pursuant to the judgment of the Gauhati High Court, is a valid piece of Legislation as it has removed the basis of the impugned judgment passed by the Gauhati High Court. The 2015 Act is also not in conflict with the IMC, Act, 1956. This is because the Central Act namely, IMC, Act, 1956 does not deal with Community Health Professionals who would practise as allopathic practitioners in the manner as they were permitted to practise under the Assam Act, in rural areas of the State of Assam. Hence, by a separate legislation the Community Health Professionals have been permitted to practise as such professionals. The said legislation of 2015 is not in conflict with IMC, Act, 1956 and the rules and regulations made thereunder. Hence, the Act of 2015 is not hit by Entry 66 of List I of the Constitution and is within the legislative competence of the State&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Legislature under the Seventh Schedule of the Constitution.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">26. In the result, the Civil Appeals arising out of SLP(C) Nos. 32592-32593 of 2015 as well as TC (C) No. 24 of 2018 and TC (C) No. 25 of 2018 stand dismissed. Pending application(s), if any, shall stand disposed of.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">27. Parties to bear their respective costs.</span><span style=\"font-size: 12pt;\">&nbsp;</span></span></p>', 'cab0524abe5e1871ee87f662efeb2aab.jpeg', '72dc7cab835f802b6bcd52341a97cc45.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-31', 1, '', '', '2023-01-31 12:32:27', '2023-01-31 12:32:27');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2614, '7NFqdQWxKXC6ruOSufR4ZY9Yk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Allowing Diploma holders in Medicine and Rural Health Care to treat common illnesses, prescribe drugs, perform minor surgeries, issue illness and death certificates results in dangerous consequences”. Supreme Court while striking down Assam legislation.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Baharul Islam and others Vs The Indian Medical Association and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 502-503 of 2023 decided on 24 January 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice B.R. Gavai and Justice B.V. Nagarathna.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. In these appeals, the appellants have assailed the legality and correctness of the order dated 30.10.2014 passed by the Division Bench of the Gauhati High Court in W.P.(C) No. 5789/2005, whereby the High Court by allowing the Writ Petition struck down the Assam Rural Health Regulatory Authority Act, 2004 (hereinafter referred to as ‘Assam Act’ or the ‘State Act’ for the sake of brevity) which was enacted by the Assam State Legislature.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. The facts giving rise to the present appeals and transferred cases, in a nutshell are that on 18.09.2004, the Assam Legislature enacted the Assam Act. The said Act was enacted to provide for the establishment of a regulatory authority in the State of Assam to register the Diploma holders in Medicine and Rural Health Care (“DMRHC”), to regulate their practice in medicine in rural areas and to regulate the opening of medical institutions to impart education and training for the course of Diploma in Medicine and Rural Health Care.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3.3. Having regard to the fact that the Jorhat Medical Institute was created as envisaged under the State Act, and about four-hundred students had been admitted to the diploma course and awarded certificates on having passed the Course, State of Assam made a plea for impleadment of the Regulatory Authority, the Jorhat Medical Institute and the persons who had obtained diploma certificates and had been engaged as Rural Health Practitioners on the basis of such qualification.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Having heard the learned counsel for the respective parties and on perusal of the material on record, the following points would arise for our consideration:<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">i) Whether the Assam Act is invalid and null and void on the ground that the Assam State Legislature did not possess legislative competence to enact the said Act?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">ii) Whether the ‘2015 Act’ is ultra vires the Constitution?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">iii) What Order?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">20. The following aspects of the matter emerge when the provisions of the Assam Act are considered in juxtaposition with the corresponding provisions of the Central Act:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">i) The Central Act operates in the area of modern scientific medicine, in all its branches, vide Section 2(f). The Assam Act seeks to regulate the practice of allopathic medicine, in rural areas, vide Section 2(g). Essentially, modern scientific medicine, includes allopathy. In other words, modern scientific medicine is the genus and allopathic medicine is a species of modern scientific medicine. This view has been adopted by this Court in A.K. Sabhapathy and Dr. Mukhtiar Chand. Therefore, the practice in modern scientific medicine including allopathic medicine, is governed by the Central Act. Hence, in order to be recognised as a practitioner in any branch of modern scientific medicine, including allopathic medicine, the qualifications that must mandatorily be obtained are those listed in the Schedules to the Central Act.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">ii) Further, Section 17 of the Assam Act provides that persons holding a Diploma in Medicine and Rural Health Care after successful completion of the course instituted under the Act, would be registered as Rural Health Practitioners and would be eligible to practise ‘medicine’ and Health Care in rural areas of Assam. The Assam Act permits Diploma holders to practise <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">‘medicine’, i.e., allopathic medicine, in rural areas of Assam. We are unable to accept that allopathic medicine, which is governed by the Central Act, may be practised by persons who do not possess the qualifications contemplated under the Schedules to the Central Act.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">iii) Practise in modern scientific medicine, including allopathic medicine, must be permitted only after having successfully undergone the academic rigor, as prescribed under the Central Act. The Central Act, in Section 33 authorizes the Council to prescribe inter alia, the courses and period of study, practical training to be undertaken, subjects, examination and standards of proficiency required to be achieved. Therefore, it is problematic to hold that without having successfully gone through meticulous training as contemplated under the Central Act, a person may practise medicine.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">iv) On a close reading of Section 15 of the Central Act, in conjunction with Section 24 of the Assam Act, we find that Rural Health Practitioners possessing a Diploma under the Assam Act have been authorised to perform certain functions identical to those performed by medical practitioners who possess qualifications prescribed under the Central Act. Such functions include treatment of common illnesses, prescription of certain categories of drugs, performance of minor surgeries, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">issuance of illness and death certificates. Performance of such functions by persons who do not possess the qualifications prescribed under the Central Act, could, in our view, have dangerous consequences</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">It is to be noted that insofar as Entry 25 of List III is concerned, there are dual restrictions which would operate on the legislative competence of a State Legislature to enact any law under the said Entry: first is, if such a law is to be made by the State Legislature, it is always subject to Entries 63, 64, 65 and 66 of List I or the Union List, in respect of which only the Parliament has the power to enact a law. The second restriction is with regard to the subject of the Entry as a whole. If the Parliament has made any law which is outside the scope of Entries 63, 64, 65 and 66 of List I but within the scope of Entry 25 of List III, in such a case Article 254 and the principles of repugnancy would apply if a State Law is in conflict with such Parliamentary Law.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">n the instant case the law made by the State Legislature, namely, the Assam Act is hit by the first of the aforesaid two restrictions; hence, it is null and void as the Assam Legislature lacked the legislative competence to enact such a Law.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">In light of the aforesaid discussion, we are of the considered view that Rural Health Practitioners enlisted under the Assam Act, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">are underqualified to perform functions similar to those performed by medical practitioners registered in accordance with the Central Act. In order to be recognised as a practitioner in any branch of modern scientific medicine, including allopathic medicine, the qualifications that must mandatorily be obtained are those listed in the Schedules to the Central Act.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The Legislature cannot directly overrule a judicial decision. But when a competent Legislature retrospectively removes the substratum or foundation of a judgment to make the decision ineffective, the said exercise is a valid legislative exercise provided it does not transgress on any other constitutional limitation. Such legislative device which removes the vice in previous legislation which has been declared unconstitutional is not considered an encroachment on judicial power but an instance of abrogation. The power of the sovereign legislature to legislate within its field, both prospectively and retrospectively cannot be questioned. It would be permissible for the legislature to remove a defect in earlier legislation pointed out by a constitutional court in exercise of its powers by way of judicial review. This defect can be removed both retrospectively and prospectively by a legislative process and the previous actions can also be validated. But where there is a mere validation without the defect being legislatively removed, the legislative action will amount to overruling the judgment by a legislative fiat which is invalid.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">In light of the aforesaid discussion, the petitions challenging the vires of the Assam Community Professional (Registration and Competency) Act, 2015 i.e., Transferred Case (C) Nos. 24 and 25 of 2018 are liable to be dismissed, and are accordingly dismissed. The said Act has been enacted with a view to restore the position of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">diploma holders in medicine and to give them continuity in service. The said Act has been enacted by a valid legislative exercise, and does not transgress any other constitutional limitation and in accordance with Entry 25 of List III of the Seventh Schedule and is not in conflict with the IMC Act, 1956 and the rules and regulations made thereunder as per Entry 66 of List I of the Seventh Schedule.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">23. Before parting with this case, it is necessary to advert to the reasoning of the Division Bench of the High Court which has held in paragraph 15 of its judgment dated 30.10.2014 that the Central Legislation, namely, the IMC Act, 1956, fully covers the field and therefore, the impugned legislation passed by the Assam State Legislature concerning the Diploma Course in Allopathic Medicine was null and void. In this context, Article 254 of the Constitution has been adverted to and it has been observed that, on account of repugnancy and there being no Presidential assent as required under Article 254, the Assam Act is null and void.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Conclusion: 25. In the result, we arrive at the following conclusions:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(i) Entry 25 of List III of the Seventh Schedule of the Constitution of India deals with the subject education which is in the Concurrent List under which both the Parliament or the Union Legislature as well as the State Legislatures have legislative competence to legislate. However, Entry 25 of List III is subject to, inter alia, Entry 66 of List I which is the Union List. Entry 66 of List I deals with coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. Thus, when any law is made under Entry 25 of List III by a State Legislature, the same is always subject to Entry 66 of List I. In other words, if any law made by the Parliament comes within the scope of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Entry 66 of List I, then the State Legislation would have to yield to the Parliamentary law.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Thus, where one Entry is made “subject to” another Entry, it would imply that, out of the scope of the former Entry, a field of legislation covered by the latter Entry has been reserved to be specifically dealt with by the appropriate legislature.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">(ii) In the instant case, it is held that the IMC Act, 1956 is a legislation made by the Parliament for the purpose of coordination and determination of standards in medical education throughout the Country. The said law, along with the Rules and Regulations made thereunder are for the purpose of determination of standards of medical education throughout India. Thus, determination of standards in medical education in India is as per the IMC Act, 1956 which is a Central Law. This is in respect of modern medicine or allopathic medicine within the scope of Entry 66 of List I and not under Entry 25 of List III of the Seventh Schedule. Therefore, a State Legislature which passes a law in respect of allopathic medicine or modern medicine would be subject to the provisions of the IMC </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Act, 1956 and the Rules and Regulations made thereunder. This would imply that no State Legislature has the legislative competence to pass any law which would be contradictory to or would be in direct conflict with the IMC Act, 1956 and the Rules and Regulations made thereunder. In other words, the standard in medical education insofar as modern medicine or allopathy is concerned, having been set by the IMC Act, 1956 and the Rules and Regulations made thereunder or by any subsequent Act in that regard, such as the Medical Council of India Act, 2019, the State Legislature has no legislative competence to enact a law which is in conflict with the law setting the standards of medical education in the context of modern medicine or allopathic medicine, which has been determined by Parliamentary Legislation as well as the Rules. In other words, a State Legislature has no legislative competence to enact a law in respect of modern medicine or allopathic medicine contrary to the said standards that have been determined by the Central Law.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">In view of the above conclusion, we hold that decision of the Gauhati High Court holding that the Assam Act to be null and void, is just and proper.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">However, the Gauhati High Court has held that the State had no legislative competence to enact the Assam Act in view of Article 254 of the Constitution on the premise that the IMC Act and the Rules and Regulations made thereunder were holding the field and hence, on the basis of the doctrine of occupied field, the Assam Act was struck down as being repugnant to the Central Law. In view of the aforesaid conclusion, we are of the view that the said reasoning is incorrect. It is reiterated that the IMC Act and the Rules and Regulations made thereunder, which are all Central legislations, have been enacted having regard to Entry 66 of List I and would prevail over any State Law made by virtue of Entry 25 of List III of the Constitution.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(iii) Hence, in view of the Indian Medical Council Act, 1956 and the Rules and Regulations made thereunder, the Assam Act, namely, the Assam Rural Health Regulatory Authority Act, 2004, is declared to be null <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and void, in view of the Assam Legislature not having the legislative competence to enact the said Law.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(iv) Consequently, the subsequent legislation, namely, the Assam Act of 2015 i.e., the Assam Community Professionals (Registration and Competency) Act, 2015, enacted pursuant to the judgment of the Gauhati High Court, is a valid piece of Legislation as it has removed the basis of the impugned judgment passed by the Gauhati High Court. The 2015 Act is also not in conflict with the IMC, Act, 1956. This is because the Central Act namely, IMC, Act, 1956 does not deal with Community Health Professionals who would practise as allopathic practitioners in the manner as they were permitted to practise under the Assam Act, in rural areas of the State of Assam. Hence, by a separate legislation the Community Health Professionals have been permitted to practise as such professionals. The said legislation of 2015 is not in conflict with IMC, Act, 1956 and the rules and regulations made thereunder. Hence, the Act of 2015 is not hit by Entry 66 of List I of the Constitution and is within the legislative competence of the State <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Legislature under the Seventh Schedule of the Constitution.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">26. In the result, the Civil Appeals arising out of SLP(C) Nos. 32592-32593 of 2015 as well as TC (C) No. 24 of 2018 and TC (C) No. 25 of 2018 stand dismissed. Pending application(s), if any, shall stand disposed of.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">27. Parties to bear their respective costs.</span><span style=\"font-size: 12pt;\"> </span></span></p>', 'd998ca9780153020903dac427a109bf4.jpeg', '634e85203db05d82da3f395abda256e7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-02', 1, '', '', '2023-01-31 12:38:48', '2023-02-02 05:20:43'),
(2615, 'o2ChaBr8Wng9BUEWTqGGcBR1k', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Allegation of corruption charges against officers of the Tender Scrutiny Committee cannot result in cancellation of a valid tender. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">M/S. Allengers Medical System Ltd Vs State of Karnataka and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 17634 of 2022 decided on 25 January 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice M. Nagaprasanna.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. Brief facts that lead the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:-</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The petitioner claims to be a registered Company under the Companies Act, 1956 and is in the business of procurement of medical and allied equipments and distribution thereto and claims to have a Pan India presence. The 2nd respondent/ Karnataka State Medical Supplies Corporation Limited (hereinafter referred to as ‘the Corporation’ for short) issues a notice inviting tenders dated 27-10-2021 for procurement of 100mA Portable X-ray machines, ICU Cots and Syringe Pump. It was to be a two cover tender, in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">terms of the Karnataka Transparency in Public Procurement Act, 1999 (‘the Act’ for short) and the Karnataka Transparency in Public Procurement Rules, 2000 (for short ‘the Rules’). The issue in the lis concerns only item No.2 in the Tender i.e., 100mA Portable X-ray machines. The petitioner finding itself eligible, submits the tender in terms of the tender Notification along with another tenderer. Therefore, there were two tenderers pursuant to the tender notification dated 27.10.2021.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">0. The afore-narrated facts are not in dispute. The link in the chain of events would read as follows: The records reveal that a tender was notified for supply and installation of ICU cots, 100mA X-ray machine and Syringe pump for Taluk and District level hospitals under Covid-19. This appears to have been abandoned. A re-tender notification is issued on 27-10-2021. The title of the tender reads as follows: “Re-tender for supply and installation of ICU Cots, 100mA Portable X-Ray Machine and Syringe Pump for Taluk and District level Hospitals under Covid-19”. Pursuant to the notification of tender, the records further reveal that there were 12 participants, out of whom two were held to be technically qualified and the petitioner emerged as the successful bidder pursuant to him getting qualified both in technical and financial aspects.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">11. The price quoted by the petitioner for each portable X-ray machine was ` 19,34,640/-. After the petitioner emerging as a successful bidder, he was called for negotiations by the 2nd respondent. The negotiation was successful and the petitioner reduced the unit price of the machine. After the reduction a notification of award of contract to the petitioner was issued. The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner had submitted his bid only for 100mA x-ray machines.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">14. Article 14 of the Constitution of India mandates that every action of the State should pass through the golden thread of non-arbitrariness. It is not in dispute that the 2nd respondent is a State under Article 12 of the Constitution of India. Being a State it would not behove of the 2nd respondent to act arbitrarily; arbitrary, I say so, for the reason that the petitioner emerges as the successful bidder in the tender pursuant to a notice inviting tender which was by itself a re-tender; petitioner was called for price negotiation; price negotiation was successful and the award was notified in favour of the petitioner on 02-03-2022. The Notification of award directed execution of contract and production of demand draft for ` 56,87,841/-. The petitioner complied with all the aforesaid conditions i.e., executes the agreement and submits the demand draft for the amount way back in the month of March </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2022. All that remained was issuance of purchase order by the 2nd respondent in favour of the petitioner.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. Months pass by, but no purchase order was issued. The petitioner represented, even then no purchase order was issued. It is at that juncture the petitioner knocked the doors of this Court. What comes about, after issuance of notice is the cancellation of tender by way of bald and cryptic order/communication. In the considered view of this Court, the act of the 2nd respondent cancelling the tender, after the tender process got concluded, award being notified, and contract being signed with the petitioner, would amount to arbitrary exercise of power and violative of tenets of Article 14 of the Constitution of India</span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16... </span>Rule 14 empowers the Tender Inviting Authority to make changes only in the tender up to the stage of notification of award. Once the award is notified, it is statutorily impermissible to withdraw or cancel the tender except for violation of the tender conditions. In the light of the aforesaid admitted facts, the communication dated 03-11-2022 cannot but be held to be arbitrary and being arbitrary, it cannot be permitted to operate and requires to be obliterated and issuance of consequential directions to the respondents to issue purchase order in favour of the petitioner.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">ORDER</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(i) Writ Petition is allowed and the communication dated 03-11-2022 of the 2nd respondent stands quashed. </span></span></p>', '6fb2f82b468efda4fe7662914a538551.jpeg', '57c0f12cb981e16a2cc6a21fcaea38fe.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-02', 1, '', '', '2023-01-31 12:40:25', '2023-02-02 12:42:52');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2616, 'hv9WNzboTU1ckFl0l2JAr2669', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Married woman having extra-marital affair betraying her husband and children cannot complain rape by accused on false promise. Supreme Court.   ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Naim Ahamed Vs State (NCT of Delhi)<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 257 of 2023 decided on 30 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ajay Rastogi and Justice Bela M. Trivedi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The Sessions Court while holding the appellant-accused guilty for\r\nthe offence under Section 376 of IPC had sentenced him to\r\nundergo rigorous imprisonment for a period of 10 years and pay\r\nfine of Rs.50,000/-, in default thereof to suffer further imprisonment\r\nfor a period of one year. The Sessions Court had also directed the\r\nappellant to pay compensation of Rs.5,00,000/- to the prosecutrix to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">enable her to maintain herself as well as the minor child. The High\r\nCourt in the appeal filed by the appellant, modified the order of\r\nsentence passed by the Sessions Court, by reducing the\r\nsubstantive sentence to 7 years with fine of Rs.5,000/- and\r\nconfirmed the direction with regard to the payment of compensation\r\nto the prosecutrix. It is stated that the appellant has paid the\r\namount of compensation of Rs.5,00,000/- to the prosecutrix as\r\ndirected by the High Court.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. The case of the prosecution as laid before the Sessions Court was\r\nthat the prosecutrix was residing in a tenanted premises at C-1/3/5,\r\nSanjay Enclave, Uttam Nagar, Delhi with her husband and three\r\nchildren in the year 2009. The accused was also residing in a\r\ntenanted premises which was situated in front of her house. On\r\n21.03.2015, the prosecutrix lodged a complaint against the accused\r\nalleging inter alia that the accused was persuading her by stating\r\nthat her husband was not earning sufficient income and that he (the\r\naccused) had a good job and he would maintain her according to\r\nhis status. The accused also assured her that he would solemnize\r\nmarriage (nikah) with her. Thereafter, the accused with an intention\r\nto have illicit intercourse with her, used to call her at various places,\r\nas a result thereof, she was impregnated in the year 2011. She\r\nfurther alleged that the accused persuaded the prosecutrix that\r\nafter the delivery of child, he would marry her. He also assured her </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that he was not a married man and after the marriage, he would\r\ntake her to his native place. In the year 2012, the accused enticed\r\nher away in another rented premises at Kapashera Border Nathu\r\nMal Building and continued to have illicit relationship with her. After\r\nsometime the accused vacated the said rented premises with a\r\nfalse excuse that his parents were severely ill and he had to visit his\r\nnative place. He told the prosecutrix to take shelter in a shelter\r\nhome along with the minor child Naman. He also forced her to take\r\ndivorce from her husband. The prosecutrix had further alleged in\r\nthe complaint that the accused had lied to her that he had gone to\r\nhis native place, but in fact he had not gone, which she came to\r\nknow when she visited the call center where the accused was\r\nworking. When she made hue and cry at his place of working, he\r\nassured her that he would soon marry her. In the year 2012, she\r\nvisited the native place of the accused and came to know that he\r\nwas already married and had children also. The parents of the\r\naccused refused to keep her there. Thereafter, also the accused\r\nkept on assuring her to marry her but did not marry. Hence, the\r\ncomplaint was filed. The said complaint was registered as the FIR\r\nNo.412/2015 at Police Station Bindapur, District South West, Delhi\r\non 21.03.2015 against the accused for the offence under Section\r\n376 of the Indian Penal Code.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. Now, in the instant case, having regard to the statutory provisions\r\nand their interpretations by this Court in various judgements, one\r\nmay be tempted to hold the appellant-accused guilty of the offence\r\nunder Section 376 IPC as has been done by the Sessions Court\r\nand the High Court, however, on the closer scrutiny of the evidence\r\non record, we find that it was fallacy on the part of the courts below\r\nto hold the appellant guilty under Section 376 IPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. In the instant case, the prosecutrix who herself was a married\r\nwoman having three children, could not be said to have acted under\r\nthe alleged false promise given by the appellant or under the\r\nmisconception of fact while giving the consent to have sexual\r\nrelationship with the appellant. Undisputedly, she continued to have\r\nsuch relationship with him at least for about five years till she gave\r\ncomplaint in the year 2015. Even if the allegations made by her in\r\nher deposition before the court, are taken on their face value, then\r\nalso to construe such allegations as ‘rape’ by the appellant, would\r\nbe stretching the case too far. The prosecutrix being a married\r\nwoman and the mother of three children was matured and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">intelligent enough to understand the significance and the\r\nconsequences of the moral or immoral quality of act she was\r\nconsenting to. Even otherwise, if her entire conduct during the\r\ncourse of such relationship with the accused, is closely seen, it\r\nappears that she had betrayed her husband and three children by\r\nhaving relationship with the accused, for whom she had developed\r\nliking for him. She had gone to stay with him during the subsistence\r\nof her marriage with her husband, to live a better life with the\r\naccused. Till the time she was impregnated by the accused in the\r\nyear 2011, and she gave birth to a male child through the loin of the\r\naccused, she did not have any complaint against the accused of he\r\nhaving given false promise to marry her or having cheated her. She\r\nalso visited the native place of the accused in the year 2012 and\r\ncame to know that he was a married man having children also, still\r\nshe continued to live with the accused at another premises without\r\nany grievance. She even obtained divorce from her husband by\r\nmutual consent in 2014, leaving her three children with her\r\nhusband. It was only in the year 2015 when some disputes must\r\nhave taken place between them, that she filed the present\r\ncomplaint. The accused in his further statement recorded under\r\nSection 313 of Cr.P.C. had stated that she had filed the complaint\r\nas he refused to fulfill her demand to pay her huge amount. Thus, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">having regard to the facts and circumstances of the case, it could\r\nnot be said by any stretch of imagination that the prosecutrix had\r\ngiven her consent for the sexual relationship with the appellant\r\nunder the misconception of fact, so as to hold the appellant guilty of\r\nhaving committed rape within the meaning of Section 375 of IPC.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n22. In that view of the matter, the accused deserves to be acquitted\r\nfrom the charges levelled against him. Of course, the direction for\r\npayment of compensation given by the courts below shall remain\r\nunchanged as the appellant had accepted the responsibility of the\r\nchild, and has also paid the amount of compensation to the\r\nprosecutrix.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>23. At this juncture, it may be noted that during the course of hearing it\r\nwas brought to the notice of the Court that the deposition of the\r\nprosecutrix was recorded by the trial court in English language\r\nthough she had deposed in her vernacular language.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. We are apprised that in some of the trial courts the depositions of\r\nthe witnesses are not being recorded in their language and are\r\nbeing recorded in English language only, as may be translated by\r\nthe Presiding officer. In our opinion, the evidence of the witness has\r\nto be taken down in the language of the court as required under <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 277 Cr.P.C. If the witness gives evidence in the language of\r\nthe court, it has to be taken down in that language only. If the\r\nwitness gives evidence in any other language, it may, if practicable,\r\nbe taken down in that language, and if it is not practicable to do so,\r\na true translation of the evidence in the language of the court may\r\nbe prepared. It is only when the witness gives evidence in English\r\nand is taken down as such, and a translation thereof in the\r\nlanguage of the court is not required by any of the parties, then the\r\ncourt may dispense with such translation. If the witness gives\r\nevidence in the language other than the language of the court, a\r\ntrue translation thereof in the language of the court has to be\r\nprepared as soon as practicable.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">25. The evidence of the witness has to be recorded in the language of\r\nthe court or in the language of the witness as may be practicable\r\nand then get it translated in the language of the court for forming\r\npart of the record. However, recording of evidence of the witness in\r\nthe translated form in English language only, though the witness\r\ngives evidence in the language of the court, or in his/her own\r\nvernacular language, is not permissible. As such, the text and tenor\r\nof the evidence and the demeanor of a witness in the court could be\r\nappreciated in the best manner only when the evidence is recorded\r\nin the language of the witness. Even otherwise, when a question\r\narises as to what exactly the witness had stated in his/her evidence, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">it is the original deposition of the witness which has to be taken into\r\naccount and not the translated memorandum in English prepared\r\nby the Presiding Judge. It is therefore directed that all courts while\r\nrecording the evidence of the witnesses, shall duly comply with the\r\nprovisions of Section 277 of Cr.PC.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>26. For the reasons stated above, the impugned judgments and orders\r\npassed by the High Court and the Sessions Court are set aside,\r\nexcept the direction for the payment of compensation to the\r\nprosecutrix. The appellant-accused is acquitted from the charges\r\nlevelled against him and is directed to be set free forthwith. The\r\nappeal stands allowed accordingly.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '688655d9a6a5ffbba4034a4ded091c52.JPG', 'c6f812608f73f75ff0c63f38ee544240.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-01', 1, '', '', '2023-01-31 12:48:22', '2023-02-01 09:11:07'),
(2617, '9yLCxXaQ6jhuAIBKs9Zd68qPR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When the purpose of land acquisition is same and lands are similar, same amount of compensation shall be paid to owners, though the lands are lying in different villages. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Narasimhegowda Vs The Special Land Acquisition Officer and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Miscellaneous Second Appeal 61 of 2014 decided on 16 January 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Hemant Chandangoudar.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The land bearing Sy.No.67/01 measuring to an extent of 5 3/4 guntas situated at Kamanayakanahalli Village, Chinakurali Hobli, Pandavapura Taluk, Mandya District was proposed to be acquired under the notification issued Section 4(1) of the Land Acquisition Act, for the purpose of Hemavathi canal to which culminated in passing of an award.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. The market value of the subject land was fixed at Rs.47,800/- per acre by the Land Acquisition Officer against which the land looser filed the petition under Section 17 of the Land Acquisition Act. The Reference Court fixed the market value of the subject land at Rs.2,25,000/- per acre. The land looser not satisfied with the quantum of compensation preferred an appeal before the District Court and the District Court by impugned judgment confirmed the market value fixed by the Reference Court. Hence, this Second Appeal.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">6. The Hon\'ble Apex Court in the case of \"Union of India (UOI) Vs. Bal Ram and Anr.,\" reported in (AIR 2004) SC 3981 has held that it would be unfair to discriminate between the land owners to pay more to some and less to others when the purpose of acquisition is same and lands are identical and similar, though lying in different villages.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">7. In view of the same, the market value of the subject value also requires to be fixed at Rs.2,73,600/<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">ORDER</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(i) Appeal is allowed in part. </span></span></p>', '886e75d9cefe59ecd379aed2fbc2ba97.jpeg', '0b08977da49bc8b3bbd1fc00611c7061.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-01', 1, '', '', '2023-01-31 12:49:21', '2023-02-01 03:21:39'),
(2619, '4SKNTO5KOMHhWrSGaBqdX4Gd1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Coca-Cola and Thums Up are food items and are covered under the Food Safety and Standards Act. Prosecution cannot be launched under the Legal Metrology Act. Karnataka High Court. ', '<div><b><span style=\"background-color: rgb(255, 255, 0);\">Judgment enclosed<br></span><br></b></div><div><b>Note: Relevant portion of the Rule 6 of the&nbsp;Legal Metrology (Packaged Commodities) Rules 2011 reads thus.&nbsp;</b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;</b></div><div><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></b></div><div><b>6. Declarations to be made on every package. - (1) Every package shall bear thereon or on label securely affixed thereto, a definite, plain and conspicuous declaration made in accordance with the provisions of this chapter as, to-</b></div><div><b><br></b></div><div><b>(a) the name and address of the manufacturer, or where the manufacturer is not the packer, the name and address of the manufacturer and packer and for any imported package the name and address of the importer shall be mentioned.</b></div><div><b><br></b></div><div><b>Provided that in the case of an electronic product which is manufactured or packed or imported after the 15th July, 2022, the package of such product shall, for a period of one year from such date, declare the name of the manufacturer or packer or importer, as the case may be, on the package itself and such declaration shall also inform the consumers to scan the QR code for the address and other related information,in case such information is declared through the QR Code and not declared on the package itself.</b></div><div><b><br></b></div><div><b>Explanation I. - If any name and address of a company is mentioned on the label without any qualifying words \'manufactured by\' or \'packed by\', it shall be presumed that such name and address shall be that of the manufacturer and the liability shall be determined accordingly;</b></div><div><b><br></b></div><div><b>Explanation II. - If the brand name and address of the brand owner appear on the label as a marketer, then the brand owner shall be held responsible for any violation of these rules and action as may be required shall be initiated against the deemed manufacturer and in the event of more than one name and address appearing in the label, prosecution shall be launched against the manufacturer indicated on the label in the first place and not against all of them.</b></div><div><b><br></b></div><div><b style=\"background-color: rgb(255, 255, 0);\">Explanation III. - In respect of packages containing food articles, the provisions of this clause shall not apply, but the provisions of, and the requirements specified in the Food Safety and Standards Act, 2006 (34 of 2006) and the rules made thereunder shall apply;</b></div><div><b><br></b></div><div><b>(aa) The name of the country of origin or manufacture or assembly in case of imported products shall be mentioned on the package;</b></div><div><b><br></b></div><div><b>(b) The common or generic names of the commodity contained in the package and in case of packages with more than one product, the name and number or quantity of each product shall be mentioned on the package.</b></div><div><b><br></b></div><div><b>Provided that in the case of an electronic product which is manufactured or packed or imported after the 15th July, 2022, the package of such product shall, for a period of one year from such date, inform the consumers to scan the QR code for the common or generic name of the commodity and where such package contains more than one product, then for the name and number or quantity of each product, in case such information is declared through the QR Code and not declared on the package itself.</b></div><div><b><br></b></div><div><b>(c) The net quantity, in terms of the standard unit of weight or measure, of the commodity contained in the package or where the commodity is packed or sold by number, the number of the commodity contained in the package shall be mentioned.</b></div><div><b><br></b></div><div><b>(d) The month and year in which the commodity is manufactured shall be mentioned in the package:</b></div><div><b><br></b></div><div><b style=\"background-color: rgb(255, 255, 0);\">Provided that for packages containing food articles, the provisions of the [Food Safety and Standards Act, 2006 (34 of 2006)] and the rules made there under shall apply:</b></div><div><b><br></b></div><div><b>&nbsp;</b></div>', 'd2e01df3ff4447d6180a3f8845e40f73.jpeg', '1cbb1e00561b813ec7c435ad11f98792.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-01-31', 1, '', '', '2023-01-31 18:00:45', '2023-01-31 18:00:45'),
(2621, 'cpstxmf33k3kUPgBpOadv6yFF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Want of funds cannot be pleaded as a ground for seeking condonation of enormous delay in filing the appeal. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ajay Dabra Vs Pyare Ram and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 716 of 2023 decided on 31 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Pamidighantam Sri Narasimha and Justice Sudhanshu Dhulia.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Both these Appeals before this Court are by the plaintiff who\r\nhad filed a suit for specific performance, which was dismissed\r\nand later his First Appeal before the High Court was dismissed\r\non the grounds of delay. We may state here that the\r\nPlaintiff/Appellant was not a party to the contract of which a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">specific performance was sought. The contract was executed\r\nbetween the defendant and a company called M/s Himalayan Ski\r\nVillage Pvt. Ltd. which was for sale of an ‘agricultural land’ in\r\nHimachal Pradesh. There were two plots of land for which two\r\ndifferent “agreements of sale” were executed, and hence two civil\r\nsuits were filed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. In both the above appeals, there is a common challenge\r\nagainst order dated 17.12.2018 passed by the Single Judge of the\r\nHigh Court of Himachal Pradesh in CMP (M) No.75 of 2018 &\r\nCMP (M) No.76 of 2018. The impugned order dismisses the delay\r\ncondonation applications filed under Section 5 of the Limitation\r\nAct, 1963, declining to condone a delay of 254 days, because the\r\nreasons assigned for the condonation were not sufficient reasons\r\nfor condonation of the delay. The Appellant herein had earlier\r\nfiled two suits (bearing nos. 28/2012 & 29/2012), for specific\r\nperformance which were dismissed by the District Judge, Kullu\r\nvide order dated 30.12.2016.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">9. We do not have a case at hand where the appellant is not\r\ncapable of purchasing the court fee. He did pay the court fee\r\nultimately, though belatedly. But then, under the facts and\r\ncircumstances of the case, the reasons assigned for the delay in\r\nfiling the appeal cannot be a valid reason for condonation of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">delay, since the appellant could have filed the appeal deficient in\r\ncourt fee under the provisions of law, referred above. Therefore,\r\nwe find that the High Court was right in dismissing Section 5\r\napplication of the appellant as insufficient funds could not have\r\nbeen a sufficient ground for condonation of delay, under the facts\r\nand circumstance of the case. It would have been entirely a\r\ndifferent matter had the appellant filed an appeal in terms of\r\nSection 149 CPC and thereafter removed the defects by paying\r\ndeficit court fees. This has evidently not been done.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. This apart, even on merits, we do not find it a case which\r\ncalls for our interference. The facts of the case are that one, M/s.\r\nHimalayan Ski Village Pvt. Ltd. had entered into an ‘Agreement\r\nfor Sale’ with an agriculturist/landowner of Himachal Pradesh,\r\nfor sale of his agricultural land. Now the admitted position in the\r\nState of Himachal Pradesh is that under Section 118 of the\r\nHimachal Pradesh Tenancy and Land Reforms Act, 1972 (for\r\nshort ‘1972 Act’), only an agriculturist, which is defined under\r\nSection 2(2) of the 1972 Act, can purchase land in Himachal\r\nPradesh, which would mean a landowner who personally\r\ncultivates his land in Himachal Pradesh. If a non-agriculturist\r\nhas to purchase a land, it can only be done with the prior\r\npermission of the State Government under Section 118 of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Act. M/s. Himalayan Ski Village was a private company, which\r\nwas admittedly not an ‘agriculturist’ and therefore was not\r\ncapable under the law to purchase the land in Himachal Pradesh\r\nand therefore it was a condition of the agreement to sale that the\r\ndefendant would secure the necessary approval from the\r\ngovernment within a stipulated period of time. The admitted\r\nposition is that this approval was not given to the defendant by\r\nthe State Government and then the defendant assigned his right\r\nto the plaintiff who thereafter filed the suit for specific\r\nperformance.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. In the present case the assignment is not valid as there was\r\nno prior consent or approval of the seller before the assignment.\r\nIn the absence of such a condition and in lieu of the fact that\r\nbefore assignment of its rights to the plaintiff/Appellant herein\r\nno permission of the seller was obtained, there was no question\r\nof granting a decree of Specific Performance in favour of the\r\nplaintiff. Consequently, this is not a case which calls for our\r\ninterference.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. We may here add that the whole purpose of Section 118 of\r\nthe 1972 Act is to protect agriculturists with small holdings.\r\nLand in Himachal Pradesh cannot be transferred to a nonagriculturist, and this is with a purpose. The purpose is to save\r\nthe small agricultural holding of poor persons and also to check\r\nthe rampant conversion of agricultural land for non-agricultural\r\npurposes. A person who is not an agriculturist can only\r\npurchase land in Himachal Pradesh with the permission of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">State Government. The Government is expected to examine from\r\na case to case basis whether such permission can be given or\r\nnot. In the present case, it thought it best, not to grant such a\r\npermission. However, the purpose of the transfer remains the\r\nsame, which is a non-agricultural activity. By merely assigning\r\nrights to an agriculturist, who will be using the land for a\r\npurpose other than agriculture, would defeat the purpose of this\r\nAct.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. Under the facts and circumstances of the case we do not\r\nfind any scope for interference in the matter. Consequently, both\r\nthe appeals stand dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c13c5b38d27e265419fa3db34b465aa2.JPG', '65d766e3a714e292258fec66c272064a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-02', 1, '', '', '2023-02-01 12:36:21', '2023-02-02 10:29:07'),
(2622, 'nnZEUTNVsriVXqIvfP3NAzs4Q', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Registration of an FIR on a cognizable offence on a reference being made by the Magistrate under Section 156(3) of the Cr.P.C. is imperative.” Karnataka High Court orders enquiry against the delinquent Police Officer.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M. Prakash and others Vs M. Vinayaka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 20269 of 2022 decided on 25 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Facts adumbrated are as follows:-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The petitioner alleges that the 1st respondent in the\r\nmorning hours of 26-03-2021, forcibly broke open the doors of\r\nresidence of the petitioner, thieved many articles in the house\r\nwhich were home appliances, fitness equipment, vehicle keys\r\namong other valuable articles. The reason for the alleged\r\nincident, according to the narration was that, the petitioner had\r\nfiled a civil suit in O.S.No.4299 of 2020, which was seeking\r\npartition of the family properties. It is the averment that, to\r\nthreaten the petitioner and force him to withdraw the partition\r\nsuit, the alleged incident had been planted by the 1\r\nst\r\nrespondent. Based upon the said incident, the petitioner\r\nregistered a private complaint before the jurisdictional\r\nMagistrate invoking Section 200 of the Cr.P.C. for offences\r\npunishable under Sections 380, 503, 410, 414, 425, 442, 451\r\nread with Section 34 of the IPC. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The learned Magistrate by his order dated\r\n29-04-2022 directs registration of the complaint in PCR,\r\nregistered by the petitioner on reference being made of the\r\nmatter to the Cottonpet Police Station for investigation under\r\nSection 156(3) of the Cr.P.C. and also directs that the matter\r\nbe listed on 26-07-2022. Though the Cottonpet Police received\r\nthe certified copy of the order on 04.05.2022, the crime was\r\nnot registered. On 26-07-2022, when the matter was posted\r\nbefore the Court, a reminder was also sent to the Police Station\r\nfor registration of the crime and reporting such registration.\r\nEven then the crime was not registered. The crime comes to be\r\nregistered only on 18-10-2022 after about 5½ months of\r\nreference being made by the learned Magistrate directing\r\ninvestigation to be conducted and a report to be submitted\r\nunder Section 156(3) of the Cr.P.C. It is in that light the\r\npetitioner has knocked the doors of this Court seeking transfer\r\nof investigation to the hands of any other police officer or\r\nagency owing to the fact that the Station House Officer of the\r\nPolice Station showing no interest in registering the crime even.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The petitioner in-person would seek to contend that\r\nthe private complaint that is registered was for cognizable\r\noffences. Noticing the fact that they were all cognizable\r\noffences, the learned Magistrate had directed conduct of\r\ninvestigation to Cottonpet Police Station. Despite a reminder\r\non 26-07-2022, no crime is registered. He would allege that\r\nthe Station House Officer is hand in glove with the 1st\r\nrespondent/accused and therefore, seeks transfer of\r\ninvestigation to any other Police Station.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The afore-narrated facts are not in dispute and the\r\nevents need to be reiterated. The petitioner alleges that on\r\n26.03.2021, the supporters of the 1st respondent forcibly\r\nentered the house of the petitioner, broke open the lock and\r\ncommitted theft of several valuables in the house. Pursuant\r\nthereto, the petitioner seeks to register a complaint before the\r\nPolice on 27.03.2021. But, the Police did not entertain the\r\ncomplaint notwithstanding the fact that it was alleging\r\ncognizable offences. Later, the petitioner approaches the\r\nCommissioner of Police by registering a complaint against the\r\n1\r\nst respondent on 17.08.2021. After much persistence, what\r\nthe petitioner receives is an endorsement dated 12-12-2021,\r\nstating that the complaint is closed holding that it is a personal\r\nmatter.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Registration of an FIR on a cognizable offence, more\r\nparticularly, on a reference being made by the learned\r\nMagistrate under Section 156(3) of the Cr.P.C. is imperative\r\nand of paramount importance, as the investigation has to\r\ncommence on such registration.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Apex Court clearly holds that, when a Magistrate directs\r\ninvestigation under Section 156(3) of the Cr.P.C., FIR should be\r\nregistered. It is the duty of the officer in-charge of the police\r\nstation to register FIR regarding the cognizable offences\r\ndisclosed in the complaint. It should be registered even if the\r\nMagistrate does not say in so many words, while directing\r\ninvestigation.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">14. The aforesaid action of registration of crime with an\r\ninordinate delay would disclose culpable negligence on the part\r\nof the Law Enforcement Agency in compliance with the lawful\r\norder passed by the learned Magistrate under Section 156(3) of\r\nthe Cr.P.C. for registration of FIR and for investigation into the\r\ncognizable offences. Lawful orders passed by the judicial\r\nauthority are required to be scrupulously enforced by the\r\npolice. Failure to do so, constitutes a constitutional tort arising\r\nout of breach of a fundamental right of access to justice for\r\nvictims of crime. Such breach amounts to serious misconduct </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and gross dereliction of duty justifying imposition of major\r\npenalty. Such gross dereliction of official duty by the Law\r\nEnforcement Agencies cannot be countenanced. The failure to\r\nregister the crime by the then Officer in-charge of the\r\nCottonpet Police Station cannot be brushed aside, as a mere\r\nloss of file and tracing of it. The said officer cannot and should\r\nnot be left off the hook, more so, in the light of the affidavit\r\nadmitting such dereliction of duty filed by the State (supra).\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>15. The learned Additional Government Advocate would\r\nsubmit that the Officer is now placed under suspension pending\r\nconduct of a departmental inquiry. Therefore, the Director\r\nGeneral and Inspector General of Police shall hold a\r\ndepartmental inquiry, which shall be conducted and completed\r\nwithin a time frame, accountability shall be fixed upon the said\r\nofficer after following due process of law and affording all\r\nopportunity to the said officer.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n 16. The apprehension of the petitioner that there would\r\nnot be a fair investigation since the crime itself is not registered</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is alleviated by the fact that the Investigating Officer one\r\nBalaraj G., who has filed the afore-quoted affidavit has also\r\nbrought to the notice of the Court that final report has already\r\nbeen filed on the investigation on 07-01-2023. The\r\napprehension and grievance of the petitioner is thus mitigated.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>(i) Writ Petition stands disposed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f1ed3440dd2f339e450d1a5530fd831e.jpeg', '32a7a17ed020d27f742258b23df38e42.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-02', 1, '', '', '2023-02-01 13:20:02', '2023-02-02 03:21:52');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2626, 'bqcPkZRAFD0CbcArwHfNQTz76', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Registration of multiple FIR by same person against the same accused based on the same set of facts and the same cause of action is impermissible and violative of Article 21 of the Constitution of India. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Harish L Mirpuri and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 8820 of 2017 decided on 17 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The 2nd respondent had filed a private complaint under\r\nSection 200 of Cr.P.C., alleging that she is the absolute owner of\r\nthe subject property and the petitioners-accused by fabricating\r\nthe documents obtained an order from the Competent Authority\r\nto convert the land for non-agricultural purpose in their favour.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n 2. The learned Magistrate referred the complaint to the\r\nPolice for investigation under Section 156(3) of Cr.PC. The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Police registered the FIR for the offences punishable under\r\nSections 182, 193, 199, 420, 425, 441, 447, 463, 441, 463,\r\n468, 470, 471, 503, 506 read with 34 of IPC. Registration of the\r\ncomplaint is impugned in this petition.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The offences alleged against the petitioners -\r\naccused are cognizable and the private complaint under Section\r\n200 of Cr.PC was filed by the 2nd respondent without complying\r\nwith Sections 154(1) and 154(3) of Cr.PC. Hence, the complaint\r\nfiled without complying with the said provisions is not\r\nmaintainable as held by the Hon\'ble Supreme Court in the case\r\nof Priyanka Srivastava Vs. State of Utttar Pradesh and Others\r\nreported in (2015) 6 SCC 287.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. It is also not in dispute that the order of temporary\r\ninjunction was operating against the 2nd respondent in\r\nO.S.No.264/2017. It is only thereafter, the private complaint\r\nwas lodged by the 2nd respondent, which clearly implies that the\r\ncomplaint was lodged only to circumvent the order of temporary\r\ninjunction operating against the 2nd respondent.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. The 2nd respondent had lodged the FIR alleging that\r\nthe petitioners-accused had criminally trespassed into the\r\nsubject land belonging to her, and pending investigation of the\r\nsaid crime, the 2nd respondent lodged the private complaint\r\nalleging cheating and forging of documents.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n 11. The Hon\'ble Supreme Court has repeatedly held that\r\nregistration of multiple FIR by same person against the same <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">accused based on the set of facts and the same cause of action\r\nis impermissible and violative of Article 21 of the Constitution of\r\nIndia.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n 12. In view of the preceding analysis, I am of the\r\nconsidered view that, the continuation of criminal proceeding\r\nagainst the petitioners - accused will be an abuse of process of\r\nlaw.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>ORDER</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n i) Criminal petition is allowed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4e5875227055765224b8bd449e94185b.jpeg', '907fef025c8a4c4d83b78219de2301ba.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-04', 1, '', '', '2023-02-02 15:46:42', '2023-02-04 03:20:21'),
(2627, 'TdgQvQMZ9kjPbOhXjO8gB2xLE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Failure to reach out of court settlement cannot be a ground to order conviction under Section 138 of the Negotiable Instruments Act. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>B.V. Seshaiah Vs The State of Telangana and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 284 of 2023 decided on 1 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna Murari and Justice V. Ramasubramanian.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. For the purpose of these Appeals, briefly, the facts\r\nof the present case are that on a private complaint\r\ninitiated by the Respondent No.2, proceedings under Section\r\n138 of the Negotiable Instruments Act, 1881 were initiated\r\nagainst the Appellants herein. These proceedings led to the\r\nconviction of the Appellants by the trial court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n4. It is alleged that the Appellants, under the guise of\r\nmaking investments took money from Respondent No.2 and made\r\nwrongful gain for their profits.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. After the Appellants’ conviction, A revision was\r\npreferred by them in the High Court It is important to note\r\nthat during the course of the revision filed by the\r\nAppellants, the parties entered into a Memorandum of\r\nUnderstanding to settle the dispute within themselves.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Clause 8 of the Memorandum Of Understanding stated\r\nthat the dispute was to be settled amicably, and in the\r\nevent of the dispute still not being amicably resolved, it\r\nmust be first referred to a sole Arbitrator.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. It is also to be noted that as per the terms of the\r\nagreement, the Respondent No.2 was bound to file a\r\ncompromise petition before the High Court, however he failed\r\nto do so. The lack of filing of such a compromise petition,\r\nas agreed upon by the Respondent No.2, has now led to the\r\nHigh Court dismissing the Revision and confirming the\r\nConviction of the Appellants.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n8. In our view, the terms and conditions of the\r\nsettlement entered into by the parties binds them to settle\r\nthe dispute amicably, or through an arbitration as has been\r\nstated in clause 8 of the Memorandum Of Understanding.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. In such a circumstance, the Appellants cannot be\r\nconvicted on the basis of the orders passed by the courts\r\nbelow, as the settlement is nothing but a compounding of the\r\noffence.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. In the case of M/S Meters and Instruments Private\r\nLimited & Anr. Vs Kanchan Mehta,this court held that the\r\nnature of offence under section 138 of the N.I Act is\r\nprimarily related to a civil wrong and has been specifically <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">made a compoundable offence.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. This is a very clear case of the parties entering\r\ninto an agreement and compounding the offence to save\r\nthemselves from the process of litigation. When such a step\r\nhas been taken by the parties, and the law very clearly\r\nallows them to do the same, the High Court then cannot\r\noverride such compounding and impose its will.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. We, therefore, allow these Appeals and set aside the\r\norder of conviction passed by the trial court. It is,\r\nhowever, kept open to the parties to settle their dispute as\r\nper the terms of the Memorandum Of Understanding.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1b81a2f5c7dfa74fa842e1ab404914d0.jpeg', 'd8e499274110197dbe39a9ea1ff93079.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-03', 1, '', '', '2023-02-02 16:05:56', '2023-02-03 07:40:08'),
(2628, 'LUpWLOg9VYXJt8xZX4YldKVqs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Wild Life (Protection) Act. Magistrate cannot take cognizance merely on the basis of final report by the police unless there is a complaint made by a person prescribed under Section 55A of the Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ramesh Babu Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 19925 of 2021 decided on 12 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Deputy Range Forest Officer concerned has registered\r\nthe FIR for the offences punishable under Sections 33(a)&(c),\r\n34(A), 50 and 51 of the Wild Life (Protection) Act, 1971 and\r\nunder the National Tiger Conservation Authority (NTCA) Rules,\r\n2007, alleging that the petitioner is constructing a lodge in a\r\nforest reserve area. Taking exception to the same, this petition\r\nis filed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Section 55 of the Wild Life (Protection) Act, 1971\r\nspecifies that the cognizance of offences under the Act can be\r\ntaken on a complaint made by a person prescribed under Section\r\n55A of the Act. To put it simply, the learned Magistrate cannot\r\ntake cognizance on the basis of final report by the police. Hence,\r\nthe registration of FIR in the absence of any source of power is\r\none without authority of law.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 6. Even otherwise, the persons prescribed under\r\nSection 55 of the Act to file a complaint is an officer not below\r\nthe rank of the Range Forest Officer. In the instant case, the FIR\r\nis registered by the Deputy Range Forest Officer, who is not the\r\nofficer prescribed to register the FIR. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n i) Writ petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ac79ec9c0b4286729923619bb7c734e5.jpeg', 'ef62271bfcb7374696f26d8e4d23d002.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-03', 1, '', '', '2023-02-02 16:34:59', '2023-02-03 03:22:25'),
(2629, 'MQnptbAYZaPxODiZe8OjLbcL0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Muslim woman can also unilaterally divorce her husband by Khula. Kerala High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>XX Vs XX.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>RP 936 of 2021 decided on 28 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-size: 12pt;\">Justice A. Muhamed Mustaque and&nbsp;</span>Justice C.S. Dias.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">This is a typical review portraying that Muslim women are subordinate to the will of their male counterparts. This review does not look innocuous at the instance of the appellant, but rather appears to have been fashioned and supported by clergies and the hegemonic masculinity of the Muslim community who are unable to digest the declaration of the right of Muslim women to resort to the extra-judicial divorce of khula, unilaterally. The appeal from which this review arises was filed challenging a divorce decree&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">granted to a Muslim wife under the Dissolution of Muslim Marriages Act, 1939. The appeal was filed by the husband. In the appeal, we noticed the existence of the right of Muslim women to resort to the extrajudicial divorce of khula, allowing her to terminate her marriage. Thereafter, the appeal was disposed of, recording khula and also delineating the different methods of extra-judicial divorce applicable to Muslim spouses. We declared that the right to terminate the marriage at the instance of a Muslim wife is an absolute right, conferred on her by the holy Quran and is not subject to the acceptance or the will of her husband. In the review petition filed by the husband, he does not dispute the authority given to the Muslim wife to invoke khula, but rather raises, as a ground of review, the procedure acknowledged by this Court to invoke the remedy of khula by the Muslim wife.&nbsp;</span></span><span style=\"font-size: 12pt;\">We declared that khula would be valid if the following conditions are satisfied:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i. A declaration of repudiation or termination of marriage by the wife.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ii. An offer to return dower or any other material gain received by her during marital tie.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">i</span><span style=\"font-size: 12pt;\">ii.An effective attempt for reconciliation was preceded before the declaration of khula.&nbsp;&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>26. The nature of khula is in the form of a ‘permissible’ action, to the Muslim wife who seeks to exercise the option of terminating her marriage. This reflects the autonomy of choice exercised by the wife. The will of the wife so expressed cannot be related to the will of the husband who has not expressed his choice to terminate the marriage. The very idea of categorization under the law, of an&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">action as permissible, is to retain that action within the domain of the person who exercises the option, by relating it with his or her autonomy. Extending such actions to the will of another would certainly keep the action out of the category of ‘permissible’. The law being categorized so, it cannot be whittled down or constricted by the will of her husband upon whom no authority is conferred to enforce such permission. It is relevant to note that, there is no qualifying obligation on the husband in the form of the five categories of defining law, either in the Quran or the Sunnah, to accept or repudiate the will expressed by the wife to make the permissible activity contingent or dependant upon any qualifying factors.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. In the absence of any other method in the manner suggested by the counsel for the review petitioner and others,to effectuate the right conferred on Muslim women being prevalent in this country, the Court’s authority in conferring upon Muslim women the right to invoke khula at her own will, will have to be respected.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>35. Istihsan is a doctrine for the Courts to adopt and apply, if there are no other methods to&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">streamline the rights conferred on believers to act upon. So, assuming that the argument of the review petitioner holds good, in the absence of any mechanism in the country to recognize the termination of marriage at the instance of the wife when the husband refuses to give consent, the court can simply hold that khula can be invoked without the conjunction of the husband.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>36. We, therefore, find no reason to review the judgment. We record our deepest appreciation to Advocate Hussain C.S who is not a practitioner before this court, having argued the case with meticulous preparation, despite the fact that we cannot accept his views and opinions.</b></span></span></p>', 'b6591f6457ffcf06a26fb40d31d8ef1e.jpeg', '6543cb0a758d4f5b3f7109f72ab6ec3f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-03', 1, '', '', '2023-02-03 11:46:24', '2023-02-03 11:47:37'),
(2630, 'jtumTr00CowsQqknIKR1JI9pT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Improvements made by bona fide holders under defective titles. Section 51 T P Act applies only to a transferee who makes improvements in good faith on a property believing himself to be its absolute owner and not to encroacher. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Baini Prasad Thr LRS Vs Durga Devi.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6182-6183 of 2009 decided on 2 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B.R. Gavai and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The respondent in R.S.A. No.276 of 1996 who was\r\nthe defendant in Civil Suit No. 70 of 1988 on the file of\r\nSubordinate Judge’s Court, Kullu in Himachal Pradesh, is\r\nthe original appellant in these appeals by special leave.\r\nSubsequent to his death the legal heirs got themselves\r\nimpleaded as appellants 1(a) to 1(g). The former appeal is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">directed against the judgment and final order in R.S.A.\r\nNo.276 of 1996 dated 27.12.2007 and the later appeal is\r\ndirected against the order dated 27.03.2008 in Civil\r\nReview Petition No.4 of 2008, in the said Second Appeal,\r\npassed by the High Court of Himachal Pradesh at Shimla.\r\nThe respondent herein (plaintiff) filed Civil Suit No.70 of\r\n1988 for possession of land measuring 11 Biswancies\r\ncomprised in Khasra No. 994/1-A/1 as per Talima by\r\ndemolition of the structure put up thereon in Phati\r\nDhalpur, Kothi Maharaja, Tehsil and District Kullu and for\r\npermanent prohibitory injunction restraining the\r\ndefendant (the appellant herein) from interfering on\r\ndisputed land and other land appurtenant to it, owned by\r\nher. The suit was decreed and upon holding the\r\nrespondent herein/plaintiff as the owner of the\r\nencroached land handing over the same after demolition\r\nof the structures put up there was ordered. The original\r\nappellant/defendant took up the matter in appeal. As per\r\nthe judgment in Civil Appeal No.9 of 1992, the findings on\r\nownership and the question of encroachment were\r\nconfirmed. Nonetheless, the First Appellate Court </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">modified the judgment and decree holding that the\r\nplaintiff/respondent herein is not entitled to recovery\r\npossession of 11 Biswancies of land after demolition of\r\nthe structures put up thereon based on the principles of\r\nacquiescence. Consequently, she was found entitled to a\r\ndecree of compensation at the market value prevalent at\r\nthe time of filing of the suit in lieu of that relief and the\r\ncompensation therefor was assessed at Rs.5500/-. Over\r\nand above the said amount, the respondent herein (the\r\nplaintiff) was held entitled to recover interest at the rate\r\nof 12 % per annum from the date of filing of the suit till\r\nrealization. RSA No.276 of 1996 was filed challenging\r\nthe modification of the judgment and decree of the Trial\r\nCourt to above extent by the respondent herein. As per\r\nthe impugned judgment dated 27.12.2007, the High Court\r\nallowed the Second Appeal and set aside the judgment\r\nand decree of the First Appellate Court for compensation\r\nto the respondent in lieu of recovery of possession and\r\nthe judgment and decree of the Trial Court dated\r\n18.01.1992 for demolition and handing over of the\r\npossession of the encroached land was restored. The </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">review petition being; Civil Review Petition No.4 of 2008\r\nfiled by the appellant herein in the said Second Appeal\r\nwas dismissed by the High Court as per order dated\r\n27.03.2008. Hence, these appeals.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The succinct narration of facts as above would make\r\nit abundantly clear that there are concurrent findings of\r\nthe Trial Court, the First Appellate Court as also the High\r\nCourt on the questions of ownership over the land in\r\nquestion viz., land measuring 11 Biswancies, as described\r\nabove and its encroachment by the original appellant. In\r\nthe said circumstances, we find absolutely no reason to\r\nrevisit the factual findings on the questions of ownership\r\nand encroachment based on the settled judicial principle\r\nwell-established by precedents that concurrent finding of\r\nfact does not call for interference in an appeal under\r\nArticle 136 of the Constitution of India in the absence of\r\nany valid ground for interference.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. A perusal of Section 51, TP Act would reveal that\r\neven after the pre-requisites for the enforceability of\r\nequity enacted in it are satisfied, the right to election for\r\none of the two alternatives provided under that Section\r\nwould still rest with the person evicting. In other words,\r\nhe may elect either to pay the value of improvements\r\nmade by the defendant who satisfies a description of\r\n“transferee” for the purpose of this Section and take the\r\nland or sell out his interests in the land to the transferee\r\nat the market value of the property, irrespective of the\r\nvalue of such improvements.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">11. In the light of the concurrent findings on the\r\nquestions of ownership and encroachment, as noted\r\nabove, it can only be held that it was after encroaching\r\nupon the land in question and ignoring the absence of any\r\ntitle that he made structures thereon at his own risk.\r\nOnce it is so found, the original appellant cannot be\r\ntreated as a ‘transferee’ within the meaning of the TP Act\r\nand for the purpose of Section 51, TP Act. Therefore, we\r\nhave no hesitation to hold that the appellants are not\r\nentitled to rely on the provision under Section 51, TP Act\r\nto seek for restoration of the modification made by the\r\nFirst Appellate Court with respect to demolition and\r\npossession. The appellants, rightly, did not take up the\r\nplea of adverse possession and in the circumstances,\r\nbeing not a transferee for the purpose of Section 51 TP.  </span><span style=\"font-size: 12pt;\">Act, he cannot legally require the respondent either to\r\npay the value of improvements and take back the land or\r\nto sell out the land to him at the market value of the\r\nproperty, irrespective of the value of the improvements.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>12. Now, what remains to be considered is whether the\r\nappellant herein/defendant has pleaded and proved his\r\nplea of estoppel. The appellants would contend that nonframing of the question of estoppel as an issue is not fatal\r\nin the facts and circumstances as also in view of the\r\nevidence available on record, in the case on hand.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. There can be no doubt with respect to the position\r\nthat estoppel is a principle founded on equity and as held\r\nby the court in Madanappa’s case (supra) its object is\r\nonly to prevent and secure justice between the parties. In\r\nthe proven circumstances that the original appellant was\r\nnot having title over the property, that the respondent\r\nherein is the owner of the land in question, that the\r\nconcurrent finding is that the original appellant was the\r\nencroacher and further that objection was raised by the\r\nrespondent herein against the construction she should not\r\nhave shut out by the rule of acquiescence or by the rule\r\nof estoppel for having made a representation to make the\r\noriginal appellant to believe that she had consented for\r\nthe construction. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. True that the learned Single Judge further held that if\r\nthe plaintiff is guilty of laches amounting to acquiescence\r\nor has knowingly permitted the defendant to make the\r\nconstruction and made him to incur heavy expenditure\r\nwithout protest or objection, mandatory injunction could\r\nbe declined and damages could be given. As held by the\r\nlearned Single Judge we are of the considered view that in\r\na case where the owner of the land filed suit for recovery\r\nof possession of his land from the encroacher and once he\r\nestablishes his title, merely because some structures are\r\nerected by the opposite party ignoring the objection, that\r\ntoo without any bona fide belief, denying the relief of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">recovery of possession would tantamount to allowing a\r\ntrespasser/encroacher to purchase another man’s\r\nproperty against that man’s will. In Bodi Reddy’s\r\ndecision (supra) the learned Judge held that in a suit for\r\nrecovery of possession filed within the period of limitation\r\nprovided under Limitation Act, the doctrine of laches or\r\nacquiescence has no place to defeat the right of the\r\nplaintiff to obtain the relief on his establishing his title. We\r\nmay hold that in such a situation in the absence of any\r\nmisrepresentation by an act or omission, the mere fact\r\nafter making objection the plaintiff took some reasonable\r\ntime to approach the Court for recovery of possession\r\ncannot, at any stretch of imagination, be a reason to deny\r\nhim the relief him of recovery of possession of the\r\nencroached land on his establishing his title over it.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">22. Considering all the aforesaid circumstances, we do\r\nnot find any flaw, legal error, perversity or patent\r\nillegality in the findings on the substantial questions of\r\nlaw by the High Court ultimately, in favour of the\r\nrespondent herein and in setting aside the judgment and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">decree of the First Appellate Court and also in restoring\r\nthe judgment and decree of the Trial Court.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>23. Resultantly the appellants are bound to fail and the\r\nappeals are accordingly dismissed.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2</span></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. There is no order as to cost.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '69282254c990b027d840c865122e5f5e.jpeg', '142950c155713bbcb6722ce8d95bea96.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-06', 1, '', '', '2023-02-03 12:57:37', '2023-02-06 05:32:18'),
(2632, 'POX4KjrAESKOnFbVafJfEGtbM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Husband’s pension can be attached towards maintenance allowance granted to wife since maintenance is not debt and wife is not a creditor. High Court of Madras. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>P. Amutha Vs Gunsekaran.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Crl. R.C. 1501 of 2022 decided on 23 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V. Sivagnanam.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The fact of the case is that the petitioner is the wife of the\r\nrespondent. She filed a maintenance case in M.C.No.7 of 1990 on the file of\r\nthe Judicial Magistrate No.I, Tambaram, in which maintenance of Rs.500/-\r\nwas ordered. Subsequently, it was enhanced to Rs.4000/- from 11.01.2013.\r\nThe respondent/husband has not paid the maintenance regularly and there is\r\narrears of Rs.1,19,000/-. Now, the respondent/husband, who was working\r\nas Barber in Indian Military, was retired from the service in the year 2019\r\nand he is receiving pension. Under these circumstances, the petitioner/wife\r\nfiled a petition for attachment of pension for arrears of maintenance and for\r\nfuture maintenance, which was dismissed by the Judicial Magistrate No.I,\r\nTambaram on the ground that there is a bar under Section 60(1)(g) of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Civil Procedure Code. Hence, the present revision has been filed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. It is not disputed that the petitioner is the wife and the respondent\r\nis her husband. She had filed a maintenance case in M.C.No.7 of 1990.\r\nInitially, maintenance of Rs.500/- was ordered. Subsequently, it was\r\nenhanced to Rs.4000/- from 11.01.2013 and there is arrears of maintenance\r\nallowance of Rs.1,19,000/- . The respondent/husband,who was working as\r\na Barber, retired from the Indian Military Service in the year 2019 and now <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">receiving pension.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. Now, the issue for consideration is whether the maintenance\r\nallowance granted to the wife can be attached in view of Bar under Section\r\n60(1)(g) of Civil Procedure Code and Section 11 of Pension Act 1871.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. The Hon\'ble Judge of Bombay High Court, in paragraph 4 of its <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">judgment, reproduced the commentaries with regard to the exemption of\r\npension from attachment. In that commentaries, it is observed that the\r\nmaintenance allowance granted to wife cannot be considered as a debt, she\r\nis not a creditor and hence, the exemption under Section 11 of the Act\r\ncannot be granted to husband, is a justifiable interpretation of Section 11 of\r\nthe Pension Act 1871. That view is also accepted by the Hon\'ble Judge of\r\nGujarat High Court at Ahamedabad.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. If the maintenance allowance is exempted under Section 11 of the\r\nPension Act 1871, the consequence would affect the divorced women\'s\r\ninterest, for example, if a Government Servant\'s wife has got divorced during\r\nhis service period and she was awarded maintenance by the Competent\r\nCourt, her maintenance amount was recovered from the salary of her\r\nhusband and after his retirement, he may get only pension. In such\r\ncircumstances, if it is exempted from the attachment, the maintenance\r\nprovided to the wife by statute and by order of Court Decree would become\r\ninfructuous. Therefore, such interpretation will not advance justice and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">adversely, affect the measure of social justice to protect women.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13. The maintenance allowance granted to wife is a measure of social\r\njustice, specifically enacted to protect and inhibit neglect of the women.\r\nFurther, it is aimed to prevent vagrancy and destitution in the light of the\r\nmischief to be avoided, the justice to be advanced.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. The conscience of social justice, the cornerstone of our\r\nconstitution will be protected. Therefore, I hold that the maintenance\r\nallowance granted to wife cannot be considered as a debt and she is not a\r\ncreditor. Hence, exemption under Section 11 of the Pension Act 1871 as\r\nwell as the exemption provided in Section 60(1)(g) of Civil Procedure Code,\r\ncannot be granted to husband. Hence, the order passed by the learned\r\nJudicial Magistrate is unsustainable and it is liable to be set aside.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. Accordingly, this Criminal Revision is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ea52a4fb34c3c6c77842827700e80a72.jpg', '3fee467e6c6c63da9c2ebb0c2378f507.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-06', 1, '', '', '2023-02-03 13:50:16', '2023-02-06 07:57:26');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2633, 'zOg8UY8giFNTKHBNxrAvwtTXQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Public employment. Caste and income of the parents of the applicant and not that of her husband should be taken into consideration. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Akshata Chougala and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 23752 of 2022 decided on 30 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioners are knocking at the doors of this Court\r\ncalling in question the action of the respondents in declining to\r\naccept the caste and income certificates furnished by the\r\npetitioners along with their respective applications for\r\nappointment to the posts of Graduate Primary Teachers for 6th\r\nstandard to 8th standard classes of 2022.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. For the sake of convenience, facts in brief in the\r\nsubject Writ Petition – W.P.No.23752 of 2022, as borne out\r\nfrom the pleadings are narrated:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> A notification is issued on 22-02-2022, by the 1st\r\nrespondent bringing in certain amendments to the Karnataka\r\nCivil Services General Recruitment Rules. In terms of the said\r\nnotification, another notification on 21-03-2022 comes to be\r\nissued calling for applications from eligible candidates for\r\nrecruitment to the posts of Graduate Primary Teachers from 6th\r\nstandard to 8th standard classes in Government and aided <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">institutions. The petitioners in all these cases finding\r\nthemselves eligible to be considered for appointment to the\r\nposts of Graduate Primary Teachers applied. While submitting\r\ntheir applications, the documents that were in their possession\r\nwere all uploaded or attached to the said applications. One\r\nsuch document that was uploaded was the caste and income\r\ncertificate. All other criteria in the cases of these petitioners\r\nwere considered by the Deputy Director of Public Instruction\r\n(Adm.) of respective districts (for short ‘DDPI’), to whom the\r\ntask of selection of Graduate Primary Teachers was entrusted.\r\nEvery other criteria was accepted by the DDPI, except\r\napplications which accompanied caste and income certificates\r\ndepicting the caste and income of the father of the applicants.\r\nThis forms the bone of contention in all these cases. Those\r\napplications which accompanied caste and income certificate of\r\nthe father were all treated to be general merit candidates\r\ndespite being entitled to reservation under Category 2A, 2B, 3A\r\nand 3B, which forms the chunk of reservations under, other\r\nBackward Classes (OBC). The challenge that is raised is to the\r\naforesaid action of treating all these petitioners to be general\r\nmerit candidates and the reason for treating them being the\r\nmarriage of daughters.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. I have given my anxious consideration to the\r\nsubmissions made by the respective learned counsel and\r\nperused the material on record. In furtherance whereof, the\r\nfollowing issues arise for my consideration:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(i) Whether the writ petitions challenging the\r\naction of interpretation of caste and income\r\ncertificates by the Selecting Authority - DDPI\r\nwould be maintainable?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) Whether the caste and income of the husband\r\nof the female applicant should be taken into\r\nconsideration or the caste and income of the\r\nparents?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iii) Whether the Selecting Authority – DDPI would\r\nget jurisdiction to interpret caste and income\r\ncertificates issued by competent authorities? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>Issue No. (i) : Whether the writ petitions challenging the\r\naction of interpretation of caste and income certificates\r\nby the Selecting Authority – DDPI would be\r\nmaintainable?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">9... </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Apex Court considers the judgment of the larger Bench in\r\nthe case of L.Chandra Kumar (supra) and then holds that in\r\ncases where thousands of employees are directed to approach\r\nthe Tribunal, it would not be in a position to render justice to\r\nthe cause and, therefore, in very exceptional circumstances,\r\nthe High Court has to entertain the petitions and not dismiss\r\nthem on the ground of alternative remedy as provided under\r\nthe statute. The situation in the case at hand is similar to what\r\narose before the Apex Court. There are hundreds of\r\napplications where the cases of applicants who come under the\r\nreservation of category 2A, 2B, 3A and 3B are held to be\r\ngeneral merit candidates and the issue is only with regard to\r\ninterpretation of whose caste and income should be taken into\r\nconsideration i.e., the husband or the parents. Therefore, in\r\nthis peculiar and atypical situation, I entertain the petitions\r\ndespite objection of the State. Merely because there exists an\r\nalternative remedy as provided under the statute, fetters\r\ncannot be laid at the hands of this Court exercising its\r\njurisdiction under Article 226 of the Constitution of India to\r\nremedy any situation which would warrant immediate and\r\nnecessary interference. The first issue is thus answered\r\nagainst the State.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Issue No.II: Whether the caste and income of the\r\nhusband of the female applicant should be taken into\r\nconsideration or the caste and income of the parents?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. This issue is whether the caste and income of the\r\nparents should be taken into consideration or that of the\r\nspouse. One common stream that runs through all these cases\r\nis that the applications submitted by these petitioners were\r\naccompanied by caste and income certificates issued by the\r\nrespective Tahsildars taking the caste and income of the father\r\ninto consideration and not the spouse. The certificates were in\r\ntune with law. It is the action of the Selecting Authority – DDPI\r\nto have interpreted the law, to its whim, according to a\r\nGovernment Order dated 12.12.1986, to contend that on once\r\nthe daughter gets married the income of the spouse will have\r\nto be considered for the purpose of caste and income certificate\r\nand not that of the parents. On these lines objections are also\r\nfiled by the State, it has categorically contended that once the\r\ndaughter gets married, she loses to be the dependent of the\r\nparents and then, the term dependent would mean the spouse\r\nand children of a married person and by no stretch of\r\nimagination the applicants can speculate that the spouse after\r\nmarriage loses dependency on the parents. It is the emphatic <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">submission of the State that it is the spouse and only the\r\nspouse whose caste and income should be taken into\r\nconsideration in the case at hand. I decline to accept any such\r\nsubmissions. The issue whether the caste and income of an\r\nindividual should be taken into consideration or that of the\r\nparents should be taken into consideration or of the spouse to\r\nbe taken into consideration need not detain this court for long\r\nor delve deep into the matter. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Therefore, in the considered view of this Court, the issue stands\r\ncovered by the judgment of the Apex Court in the case of\r\nSURINDER SINGH (supra) and the judgment of the Division\r\nBench in the case of SMT. DIVYASHREE (supra) and that of\r\nthe co-ordinate Bench in Smt. YOGESHWARI (supra). The\r\nsubmission of the learned Advocate General is, that the Apex\r\nCourt in the case of INDRA SAWHNEY (supra) had permitted\r\nthe State Governments to regulate the procedures providing\r\nreservations to other backward classes and therefore, the\r\nGovernment Order dated 12.12.1986 or the Government Order\r\ndated 28.10.1993 should be followed, would amount to placing\r\nthe Government Order on a higher pedestal than that of the\r\njudgment of the Apex Court, the Division Bench of this Court\r\nand that of the co-ordinate Bench, which can by no stretch of\r\nimagination be done, therefore, the said submission is rejected. <span style=\"font-size: 12pt;\">In the result, I hold that the action of the Selecting authority -\r\nDDPI in interpreting and holding that the caste and income of\r\nthe husband is to be taken into consideration is contrary to law\r\nand a direction is to be issued to the respondents to consider\r\nthe applications of the petitioners on the basis of caste and\r\nincome certificates of the parents and not their spouse and as\r\nbelonging to the respective categories against which they have\r\napplied for. Issue No.2 is accordingly answered. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Issue No.iii : Whether the Selecting Authority - DDPI\r\nwould get jurisdiction to interpret caste and income\r\ncertificates issued by competent authorities?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. The issue is whether the Selecting Authority – DDPI\r\nwould get the jurisdiction to interpret a caste certificate issued\r\nby the competent authority while undertaking the selection\r\nprocess. This issue need not detain this Court for long or delve\r\ndeep into the matter <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The issue formulated by the Division Bench was whether the\r\nSelecting Authority – the Karnataka Examinations Authority\r\ntherein, while finalizing the select list can decide about the\r\nvalidity of a caste and income certificate issued by the\r\ncompetent authority, it is answered against the Karnataka\r\nExaminations Authority, the Selecting Authority. The State\r\ntossed the said decision of the Division Bench unsuccessfully\r\nbefore the Apex Court in SLP No.12648 of 2019. Therefore, the\r\nfinding of the Division Bench in so far as this Court is concerned\r\nhas become final and the action challenged in the cases at hand\r\nis the one that was similar to what was challenged before the\r\nDivision Bench i.e., the Selecting Authority interpreting caste\r\nand income certificate issued by the competent authority. In\r\nthe light of the Selecting Authority - DDPI having no jurisdiction\r\nto do so, the action of the Selecting Authority, albeit on the\r\nGovernment Order dated 12.12.1986 and the directions of the\r\nState is unsustainable. Therefore, this issue is answered in\r\nfavour of the petitioners and against the respondents.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. It is rather surprising that the State is time and again\r\nrepeating the very same mistake and driving the applicants to\r\nknock at the doors of this Court despite the declaration of law\r\nby the Apex Court and that of this Court, by clinging on to a\r\nGovernment Order dated 12.12.1986, which is on the face of it\r\nunsustainable. Therefore, it is for the State to direct the\r\nselecting authorities to act in tune with law and not contrary to\r\nlaw. It is high time to state, sets its house in order, and refrain\r\nfrom generating unnecessary litigation.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n13. For the aforesaid reasons, I hold that the writ\r\npetitions are maintainable for the reasons rendered on issue\r\nNo.1; the caste and income certificates submitted by the\r\npetitioners shall be taken into consideration by the Selecting\r\nAuthority - DDPI; the Selecting Authority – DDPI has no\r\njurisdiction to interpret the caste certificates issued by the\r\ncompetent authorities. The petition would thus succeed. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The Writ Petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '79f99cae08e8109fe6f6a85fe0fc091d.jpeg', 'cb545decfda5f9c2a18ef4011c13a9de.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-07', 1, '', '', '2023-02-05 18:59:28', '2023-02-07 03:21:47'),
(2634, 'YVaqoaF6m5s1yAvjGec82DeFP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Child cannot be allowed to remain in unhealthy atmosphere”. Karnataka High Court orders custody of the minor child to the father having found the wife to be in immoral relationship.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ekta Singh Vs Rajeev Giri.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.F.A 2786 of 2022 decided on 31 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Alok Aradhe and Justice S. Vishwajith Sheety.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This miscellaneous first appeal is filed under\r\nSection 47(C) of the Gurardian and Wards Act, 1890 (for\r\nshort, \'the Act\'), against the judgment and decree dated\r\n03.03.2022 passed by the IV Addl. Prl. Judge, Family\r\nCourt, Bengaluru (hereinafter referred to as \'the Family\r\nCourt\'), in G & WC.No.128/2018, wherein the Family\r\nCourt has allowed the petition filed by the respondentfather under Section 25 of the Act and directed the\r\nappellant-mother to hand over the custody of the minor\r\nchild to the respondent and further restrained the\r\nappellant from removing the child from the jurisdiction of\r\nthe Family Court till the custody of the child is handed\r\nover to the respondent.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Brief facts of the case as revealed from the\r\nrecords which would be necessary for the purpose of\r\ndisposal of this appeal are, the marriage of the appellant\r\nwith the respondent was solemnized as per the Hindu\r\nrites and customs on 23.10.2011 and from the said\r\nwedlock, a girl child who was named Mayra Giri was born\r\non 26.04.2015. Both the parties are Doctors by\r\nprofession. It appears that the parties had come across\r\neach other through a marriage portal, and thereafter got\r\nmarried. At the time of marriage, the respondent\'s\r\nparents and his sister with her two years old daughter\r\nwere staying with him and the appellant was fully aware\r\nof the same and she had allegedly consented for the\r\nmarriage knowing that she had to reside with the\r\nrespondent along with his family members.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Since the child was growing in a unholy\r\natmosphere in the midst of an illicit relationship between\r\nthe appellant and her paramour Shivanand, the\r\nrespondent started apprehending that the welfare of the\r\nchild and its future was not safe with the appellant and\r\nthe child was required to be brought up in a safe and\r\nstable environment. It is under these circumstances, he\r\nhad approached the Family Court, Bengaluru, by filing\r\nthe petition under Section 25 of the Act, with a prayer to\r\ngrant custody of the child to him and also to restrain the\r\nappellant from removing the child from the jurisdiction of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Family Court till the child is handed over to his\r\ncustody.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">20. Section 6 of the Hindu Minority and\r\nGuardianship Act, 1956 (for short, \'the Act of 1956\')\r\nprovides that the father of the child is the natural\r\nguardian. However, an exception is made in respect of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the child who is below the age of five years and in normal\r\ncircumstances, the custody of the child below five years\r\nshould be given to the mother unless the father\r\nestablishes that the welfare and interest of the child will\r\nbe jeopardized if the custody is given to the mother.\r\nEven though Section 6 of the Act of 1956 provides that\r\nthe father is the natural guardian of the Hindu minor\r\nchild, it automatically does not disentitle the mother from\r\nclaiming the custody of the child and when the question\r\nof custody of a minor child is brought before the Court,\r\nthe Court is required to adjudicate the dispute\r\nnotwithstanding Section 6 of the Act of 1956 and the\r\nquestion of custody is principally required to be decided\r\nkeeping in mind the paramount interest and welfare of\r\nthe child. The Court, therefore, is required to appreciate\r\nthe conduct, behaviour and character of the respective\r\nparties, keeping in mind as to who would be the better\r\nsuitable person when it comes to taking care of the\r\nwelfare of the child. The Court for the said purpose is not\r\nonly required to consider the bonding and comfort of the\r\nchild, but also the environment in which it is presently\r\ngrowing keeping in mind about the welfare and future </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">growth of child. In addition to financial security, the\r\nCourt is also required to take into consideration who\r\nwould be available for the child when it is in need of their\r\nlove and affection and under whose care and protection\r\nthe child would have a better future. The Court is also\r\nrequired to take into consideration that if the child is\r\nallowed to continue in the custody of the parent with\r\nwhom it is presently growing whether it may have any\r\nadverse effect on the mental and physical growth of the\r\nchild.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. In the present case, the parents of the child\r\nare qualified doctors. The appellant is working in a\r\nprivate hospital on the administrative side, while the\r\nrespondent is a Post Graduate i.e., MD in Pathology. Both\r\nof them are divorcee from the earlier marriage and they\r\ndo not have any children from their earlier marriage. The\r\nparties came to know each other on a marriage portal,\r\nand thereafter, they decided to marry each other. The\r\nmaterial on record would go to show that at the time of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">marriage, the respondent\'s parents, sister and her minor\r\ndaughter were staying with him and many relatives also\r\nused to visit them. Whereas, the appellant was brought\r\nup by her grandparents and it appears that her parents\r\nwere not in good terms, and therefore, she had not\r\nreceived parental love, care and affection when she was\r\ngrowing. It appears therefore that she has no respect or\r\nvalue for the relationships and she was in the habit of\r\nquarrelling on silly issues. She also did not want the\r\nrespondent\'s parents and family members to stay with\r\nhim, and therefore, she saw to it that they left the house.\r\nInspite of such behaviour of the appellant, the\r\nrespondent\'s parents came back to the house of the\r\nrespondent when the appellant was pregnant and they\r\nnot only took care of the appellant during her pregnancy,\r\nbut also took care of the appellant and the child after the\r\nappellant gave birth to the child. Inspite of all these, the\r\nappellant deliberately raised quarrel with them and threw\r\nthem out of the house.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>64. In almost similar circumstances wherein the\r\nchild was not given sufficient time to develop affinity or\r\nto be comfortable with the father and wherein the child\r\nwas throughout kept in the custody of the mother, the\r\nDelhi High Court in the case of SMT. SHILPI THAPAR VS\r\nSHRI MANAN THAPAR (CM(M).No.1425/2013 and\r\nconnected matters disposed of on 23.11.2015) has\r\nobserved that any factor or influence which is injurious to\r\nthe child his well-being and balanced psychological\r\ndevelopment should be removed. The mother\'s care for\r\nthe child is stifling its emotional growth and her over\r\nprotective concern is inhibiting the development of the\r\nindividuality and personality, and it is, therefore,\r\nnecessary to immediately remove this unhealthy\r\ninfluence from the child\'s mind. The respondent-father\r\nlives with his parents who are in their early 60s and are\r\nalways available at home to take care of the child.\r\nHence, when he comes back from school, he would\r\nalways have the care of his grandparents. It was further\r\nobserved in the said case that the father should have an <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">important role in the child\'s growth and cannot be\r\noverlooked that the development of the personality of\r\nany child, particularly that of a female child is inflicted.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">65. Though in normal circumstances, the\r\nwish/desire of the child would also play a prominent role\r\nwhile deciding the custody of the said child, having\r\nregard to the material available on record and more so\r\nfor the reason that the child was throughout kept away\r\nfrom the father and was being tutored by the appellantmother, we are of the view that in the present case, no\r\npurpose would have been served by ascertaining from\r\nthe child its desire or wish. Desire and wish of the child\r\ncan be ascertained only if the child is mature enough to\r\nform an intelligent preference and judgment, otherwise,\r\nit is for the court to analyze the material and make a\r\ndecision taking into consideration the paramount interest\r\nof the child. The Family Court, in our opinion, has\r\nproperly exercised its jurisdiction and discretion, and\r\ntherefore, we are of the considered opinion that the\r\nFamily Court was fully justified in directing to hand over\r\nthe custody of the child to the respondent-father.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">67. We hope that the appellant and the\r\nrespondent in the present case who are qualified doctors\r\nand responsible members of the society will realize the\r\nmistake committed by them and keeping in mind the\r\ninterest and welfare of the minor child will come together\r\natleast for the purpose of taking care of the welfare of\r\nthe child, who in a short period of time would be\r\nattaining the age of maturity and would need them by\r\nher side at the time when she undergoes certain\r\nbiological changes in her. The father is the natural </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">guardian of the minor child and he has a equal right to\r\nclaim custody of the child and if the child is more than 5\r\nyears of age, his right cannot be denied unless court is of\r\nthe opinion that in the interest of the child\'s welfare and\r\ngrowth, the custody should continue with the present\r\ncustodian. After analyzing the material on record, we\r\nhave recorded reasons as to why continuation of the\r\nchild\'s custody with the appellant would not serve the\r\ninterest and welfare of the child. Nothing adverse is\r\nfound against the respondent to deny him the custody of\r\nthe child. He has taken steps at the earliest point of time\r\nand has been fighting for the cause ever after. Having\r\nappreciated the material available on record, in the\r\nbackground of the various judgments referred to above\r\nand keeping in mind the interest and welfare of the child,\r\nwe find no illegality or irregularity in the judgment and\r\ndecree passed by the Family Court which is impugned in\r\nthis appeal. We, therefore, answer the point for\r\nconsideration in the affirmative.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Accordingly, we proceed\r\nto pass the following order:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>68. The appeal is dismissed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '20961c7c09fdb494a72b00314dabcca8.jpeg', '837f8ad706b64f24d4de49c76551c74c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-05', 1, '', '', '2023-02-05 19:23:21', '2023-02-07 10:58:55'),
(2637, 'ydiKEOj3tkDquuB94r9D3xZt3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'An agreement by which a wife waives her right guaranteed under S.125 of CrPC will be against public policy and the same cannot be enforced. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>XX Vs YY.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>RPFC 327 of 2022 decided on 2 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A. Badharudeen.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Short facts:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">The respondent herein, who admittedly is the wife of the\r\npetitioner, moved before the Family Court and pressed for grant\r\nof allowance of maintenance under Section 125 of Cr.P.C,\r\nalleging that she did not have any means of maintenance. Further </span><span style=\"font-size: 1rem; font-family: var(--bs-font-sans-serif);\">the respondent contended before the Family Court that the\r\nrevision petitioner had been running a supermarket in Gulf;\r\nowned vehicles and he was the proprietor of other business.\r\nTherefore, he had been earning Rs.90,000/- per month.\r\nAccordingly, the respondent/petitioner pressed for Rs.7,500/- as\r\nmonthly maintenance from the revision petitioner. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. The revision petitioner herein, the respondent in the\r\nM.C filed objection denying the contentions. According to the\r\nrevision petitioner, talaq was pronounced and agreement was\r\nexecuted. Further it was contended by the revision petitioner\r\nbefore the Family Court that since the respondent was a divorced\r\nwoman and as per agreement executed in between them, 5\r\nsovereigns of gold ornaments and Rs.25,000/- were given to the\r\nrespondent herein, she could not claim maintenance further.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Thus the law is well settled that an agreement by\r\nwhich a wife waives her right of maintenance protected under\r\nSection 125 of Cr.P.C is an agreement against public policy and\r\nthe same is ab initio void and not enforceable. Therefore, the\r\nclaim for allowance of maintenance by the wife cannot be\r\ndisputed or denied on the basis of a void agreement and the wife\r\nis entitled to get maintenance ignoring the said void agreement.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. In the case at hand, though RW2 and RW3 supported\r\nthe execution of an agreement in the matter of taking and return\r\nof 5 sovereigns of gold, being witnesses to the said agreement, the\r\nFamily Court found that none of the witnesses stated that there <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was a written agreement and they had even read the same. It is\r\nrelevant to note that no such agreement was produced by the\r\ncounsel. Thus it appears that the entire contentions raised by the\r\nrevision petitioner are found to be unsustainable and the Family\r\nCourt rightly negatived those contentions.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. The revision petitioner did not raise any contention\r\nbefore the Family Court that the respondent herein is capable of\r\nmaintaining herself since she had job and income for the same.\r\nThe Family Court found that the respondent stated that the\r\nrevision petitioner had been running business abroad. Though his\r\nincome was not exactly proved, PW1 specifically asserted that the\r\nrevision petitioner had been getting Rs.1 lakh per month. In this\r\nmatter, there was no `talaq\' as contended and, therefore, the\r\nhusband cannot deny maintenance. Even otherwise, a divorced\r\nMuslim wife is entitled to get maintenance, till she will get\r\nremarried unless the claim for “a reasonable and fair provision\r\nand maintenance” to be paid under Section 3 of the Muslim\r\nWomen (Protection of Rights on Divorce) Act, 1986 to the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">divorced wife, not paid. Therefore, the revision petitioner is\r\nbound to pay maintenance to the respondent herein.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n16. In fact, the Family Court granted only Rs.150/- per day\r\nto the respondent as maintenance and therefore, the monthly\r\nmaintenance of Rs.4,500/- alone was granted. Going by the facts\r\nof this case, it cannot be said that the amount of Rs.4,500/- is on\r\nhigher side. In view of the matter, the order impugned does not\r\nrequire any interference and the same stands confirmed.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Accordingly, the revision petition stands dismissed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5d6be68b037e87692943a5c826302260.jpeg', 'ad391cfe3c49291527630c8b5e59b632.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-07', 1, '', '', '2023-02-06 13:47:56', '2023-02-07 09:07:20');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2636, '5QHrz66LtyBXQEmWxACvjpDL7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'For the offences committed by an establishment, its employee alone cannot be prosecuted. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K.S. Prasad Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 195 of 2020 decided on 31 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court calling in question\r\nproceedings in C.C.No.7283 of 2017 pending before the IV\r\nAdditional Chief Metropolitan Magistrate, Bengaluru arising out of\r\nCrime No.499 of 2015 registered for offences punishable under\r\nSections 406 and 409 of the IPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Brief facts that lead the petitioner to this Court in the\r\nsubject petition, as borne out from the pleadings, are as follows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n The petitioner claims to be an employee of M/s Vasan\r\nHealthcare Private Limited (hereinafter referred to as ‘the\r\nEstablishment’ for short) from 2012 up to 13-09-2017. During the\r\nsaid period, he further claims to have donned several rolls in the\r\nEstablishment and was for some time Senior Vice-President, Human\r\nResources and was also authorized to sign certain forms in\r\nconnection with the business of the Establishment including the\r\nforms of Employees Provident Fund. It appears that during the\r\nperiod from August 2014 to May 2015 the Establishment deducted\r\nprovident fund from the wages of employees but had not deposited\r\nthe said amount with the Provident Fund Organization. The amount\r\ntotaled to ` 95,58,104/-. Based upon this, a complaint comes to be\r\nregistered on 06-08-2015 before the 1st respondent alleging\r\noffences punishable under Sections 406 and 409 of the IPC. The\r\npetitioner claims to have been unaware of the said crime registered <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">against him. On coming to know that crime has been registered and\r\nthe Police after investigation have filed a charge sheet, the\r\npetitioner on securing all the documents has knocked at the doors\r\nof this Court calling in question the proceedings in the said criminal\r\ncase.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">7. The afore-narrated facts are not in dispute and are,\r\ntherefore, not reiterated. The position of the petitioner as being the\r\nVice-President of the Establishment at the relevant point in time is\r\nagain a matter of record. What is germane to be noticed is the\r\ngenesis of the problem. The Establishment between August 2014\r\nand May 2015 did not remit contributions that were deducted from\r\nthe salaries of employees of the Establishment to the Organization.\r\nThe reason behind non-remittance is that the Bank accounts of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Establishment were attached by the Income-Tax Department in\r\nseveral cases. On the ground that the Establishment had not\r\nremitted the amounts, two proceedings were initiated – one, setting\r\nthe criminal law in motion by registering Crime No.499 of 2015 for\r\noffences punishable under Sections 406 and 409 of the IPC and the\r\nother, registering a criminal case before the Special Court for\r\nEconomic Offences under Paragraph 76(d) of the Employees’\r\nprovident Fund Scheme, 1952 read with Sections 14(1A) and 14A\r\nof the Employees’ Provident Funds and Miscellaneous Provisions\r\nAct, 1952 (‘the Act’ for short) for contravention of Section 6 of the\r\nAct r/w Para 30 and 38 of the Employees’ Provident Fund Scheme,\r\n1952. The proceedings before the Special Court under the\r\nprovisions of the Act were instituted against the Establishment and\r\none Mr. A.M.Arun, the Chairman. This was called in question before\r\nthis Court in Criminal Petition No.5657 of 2017 and connected cases\r\nas there were 21 complaints registered. This Court in terms of its\r\norder dated 18-02-2019 observed that it was the petitioner who\r\nwas at the helm of affairs and not the Chairman Mr.A.M.Arun and\r\naccordingly the proceedings against the Chairman were quashed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. The issue, in the teeth of the findings in both these cases\r\nis, whether the impugned proceedings in C.C.No.7283 of 2017\r\nshould be permitted to be continued?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. The crime that is registered against the petitioner in\r\nCrime No.499 of 2015 is for offences punishable under Sections 406\r\nand 409 of the IPC. The concerned Court took cognizance of the\r\noffence punishable under Sections 409 and 420 of the IPC against\r\nthe petitioner and drops the offence punishable under Section 406\r\nof the IPC. Section 420 of the IPC has its ingredients in Section 415\r\nof the IPC. The ingredients are that an accused should lure the\r\ncomplainant/firm to part with certain property with dishonest\r\nintention. The case at hand is concerning contribution towards\r\nprovident fund and its non-remittance to the Organization. It\r\ncannot be imagined as to how contribution of provident fund can be\r\nlured by the petitioner over the employees when it is a statutory\r\ndeduction. Therefore, the cognizance for offence punishable under\r\nSection 420 of the IPC is recklessly taken, as none of the\r\ningredients that are necessary to be proved for offence punishable\r\nunder Section 420 as obtaining under Section 415 of the IPC are <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">remotely present in the case at hand. Therefore, the cognizance\r\nbeing taken for the said offence is fundamentally flawed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. What remains is cognizance being taken under Section\r\n409 of the IPC. Section 409 directs breach of trust by a servant or\r\na banker or whoever being entrusted with some property. Even if it\r\nis construed of entrustment of property qua the deposit of\r\nprovident fund against the petitioner, the finding rendered by the\r\nSpecial Court qua the Establishment and the discharge of the\r\npetitioner in those cases would clearly have a bearing on the\r\noffence so alleged under Section 409 of the IPC. If ingredients of\r\nSection 409 of the IPC are alleged element of mens rea would\r\nbecome mandatory. The finding of the Special Court in favour of\r\nthe Establishment was that there was no willful default on the part\r\nof the Establishment and it was a circumstance which was beyond\r\nthe control of the Establishment, as the Income Tax Department\r\nauthorities had attached the properties of the Establishment. If that\r\nbe the finding and the said finding having become final, the\r\npetitioner cannot be hauled into the web of crime for an offence\r\nunder Section 409 of the IPC, as if there is willful default against <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Establishment. There cannot be anything willful laid against the\r\npetitioner. There is no iota of element of mens rea that is alleged\r\nagainst the petitioner.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. Reference being made to the judgment of the Apex Court\r\nin the case of N.RAGHAVENDER v. STATE OF ANDHRA\r\nPRADESH, CBI would be apposite. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Apex Court, in the aforesaid judgment, has clearly held that for\r\nan offence punishable under Section 409 of the IPC, the ingredients\r\nunder Section 405 are sine qua non. The ingredients are that the\r\naccused should have dishonestly misappropriated or converted that\r\nproperty to his own use. Dishonestly, therefore, is what is required\r\nto be present in any transaction where the offence alleged is that of\r\nSection 409 of the IPC which pre-supposes existence of mens rea,\r\nwhich I do not find anywhere in the case at hand.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. It is also germane to notice that the proceedings are\r\ninstituted only against the petitioner. The petitioner was an\r\nemployee of the Establishment. For proceedings to be instituted for\r\noffences under Sections 406 or 420 of the IPC, the Establishment\r\nought to have been made a party. Without the Establishment being\r\nan accused, the proceedings against the petitioner cannot be\r\npermitted to be continued. For these reasons, permitting further\r\nproceedings to be continued against the petitioner would <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">degenerate into harassment, becomes an abuse of the process of\r\nlaw and ultimately result in miscarriage of justice.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The Criminal Petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e4d59e8cd2913f9039ce25b433f1ee15.jpeg', 'aa82a80e33bb69accc47b50c3f794b92.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-07', 1, '', '', '2023-02-06 13:23:01', '2023-02-07 12:16:23'),
(2668, '7nibuO3Mhrop4kisSTLTYTvWp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Dowry Prohibition Act 1961. Wife roping in entire family members of husband with ulterior motive of wreaking vengeance. Such proceedings are liable to be quashed. Karnataka High Court.', '<h4><b><span style=\"font-size: 0.875rem;\">Sarasamma and others vs State of Karnataka and others. Criminal Petition 77/2018 decided on 10 December 2020. Justice K. Somashekar.</span><br></b><br><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem; font-family: var(--bs-font-sans-serif); -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">13. There is no dispute that second respondent has lodged a complaint before the first respondent – police on 5.2.2015. But her evidence clearly reveals that inspite of issuance of notice by her husband Ashok Kumar for restitution of conjugal rights, she was not inclined to lead marital life but went on to lodge the complaint against her husband and his family members. In the said complaint there is an allegation made that her husband Ashok&nbsp; Kumar and his family members said to have been given physical as well as mental harassment and demanded dowry. But if really there was any sort of harassment extended to her she would have lodged the complaint to&nbsp; the police even before issuance of notice by her husband&nbsp; for restitution of conjugal rights. But there is no any sort of physical or mental harassment alleged to be meted out either&nbsp; from&nbsp; her husband or his family members. But minutely to see the ingredients of Section 498A of IPC, there shall be some physical as well as mental harassment and it is from the husband as well as family members but there shall be some material allegations with regard to constituting of The complainant is well educated person and has secured three degrees from universities. As there was some incompatible condition between her and her husband, it can be inferred that even if the&nbsp; allegation made in a complaint and the substance in the FIR, they&nbsp; are dragged into the criminal proceedings with a view to tarnish their image in the society.</span><br></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">15. When there is sufficient strong evidence then only the investigating officer has to lay the charge sheet against the accused as contemplated under Section 173(2) of Cr.P.C., which requires to be viewed from all angles, but mere because laying the charge sheet, it cannot said that the allegations made in the complaint and so also, the statement of witnesses said to have been recorded, it appears to be a gospel truth.</span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\"><br></span></div><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">17. In the instant case, the criminal proceedings initiated by the complainant against her husband Ashok Kumar and his family members who were roped in the alleged crime, a prudent man can infer that the said proceedings initiated by her is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.</span></div></h4><h4><div style=\"text-align: justify;\"><span style=\"font-size: 1.3125rem;\">Criminal petition allowed. Proceedings quashed.</span></div></h4>', '25e669a926ce9fc3eca3f9147131d3d4.jpeg', '08e6781637e189c1aeb5e919564a8e9e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-13', 1, '', '', '2023-02-13 16:32:58', '2023-02-13 12:15:50'),
(2672, 'a6ZFIyC8zx1rfH3Ih3ol1ypTA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Supreme Court upholds Delimitation Commission for the Union Territory of Jammu and Kashmir under the Delimitation Act, 2002 and the exercise of delimitation undertaken by the Commission.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Haji Abdul Gani Khan and another Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition (Civil) 237 of 2022 decided on 13 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sanjay Kishan Kaul and Justice Abhay S. Oka.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The main challenge in this writ petition under Article 32 of the\r\nconstitution of India is to the legality and validity of the action of\r\nconstituting a Delimitation Commission for the Union Territory of\r\nJammu and Kashmir under provisions of the Delimitation Act, 2002\r\nand the exercise of delimitation undertaken by the Commission.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Constitution (Application to Jammu and Kashmir) Order,\r\n2019 bearing C.O. No.272 was issued by the Hon’ble President of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">India on 5th August 2019. The said order was issued in the exercise of\r\npowers conferred by clause (1) of Article 370 of the Constitution of\r\nIndia. The said order directed that all the provisions of the\r\nConstitution, as amended from time to time, shall apply in relation to\r\nthe State of Jammu and Kashmir, subject to modifications made to\r\nArticle 367 as set out in the said order. By the said order, Clause (4)\r\nwas added to Article 367 providing that the expression “Constituent\r\nAssembly of the State referred to in clause (2)” in the proviso to clause\r\n(3) of Article 370 of the Constitution, shall be read as “Legislative\r\nAssembly of the State”. On 6th August 2019, a declaration under\r\nClause (3) of Article 370 of the Constitution bearing C.O.No.273 was\r\nmade by the Hon’ble President of India on the recommendation of the\r\nParliament, by which it was declared that all the clauses of Article 370\r\nshall cease to be operative.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. The Delimitation Act, 2002 which was not applicable to the\r\nerstwhile State of Jammu and Kashmir, was made applicable by virtue\r\nof Section 62 of the J&K Reorganisation Act to the newly formed Union\r\nTerritory of J&K. On 6th March 2020, the Central Government\r\nconstituted a Delimitation Commission under Section 3 of the\r\nDelimitation Act, 2002 for the purpose of delimitation of Assembly and\r\nParliamentary Constituencies in the Union Territory of J & K as well\r\nas the States of Arunachal Pradesh, Assam, Manipur and Nagaland.\r\nThe Commission was headed by a retired Judge of this Court. The\r\nElection Commissioner and the State Election Commissioner were\r\nmade ex-officio members of the Delimitation Commission. The term of\r\nappointment of the Chairperson was fixed as one year. By a\r\nnotification dated 3rd March 2021, the earlier notification dated 6th\r\nMarch 2020 appointing the Delimitation Commission was amended by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">deleting the States of Arunachal Pradesh, Assam, Manipur and\r\nNagaland from the purview of the Delimitation Commission. By the\r\nsame notification, the term of the Chairperson was extended to two\r\nyears. The notification dated 6th March 2020 was further amended by\r\na notification dated 21st February 2022 by providing that the term of\r\nthe Chairperson shall be for two years and two months.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n5. Sub-Section (1) of Section 60 of the J&K Reorganisation Act\r\nprovides that the number of seats in the Legislative Assembly of Union\r\nTerritory of J & K shall be increased from 107 to 114. Sub-Section (4)\r\nof Section 14 provides that 24 seats in the Legislative Assembly of the\r\nUnion territory of J & K shall remain vacant and shall not be taken\r\ninto account for reckoning the total membership of the Assembly.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. Firstly, we will deal with the issue of applicability of Article 170\r\nhaving the title “Composition of the Legislative Assemblies” to the\r\nUnion Territory of J & K. Article 170 forms part of Chapter III under\r\nthe title “The State Legislature”. Chapter III has been incorporated in\r\nPart VI of the Constitution which deals with the States. Much\r\nemphasis was laid on the violation of the provisions contained in the\r\nsecond Proviso to Clause (3) of Article 170 by the learned counsel\r\nappearing for the petitioners. But we may note here that the said\r\nArticle does not deal with the legislatures of Union Territory at all.\r\nArticles 239A and 239AA which are included in Part VIII of the\r\nConstitution are the Articles that deal with the creation of a body to\r\nfunction as legislature and Council of Ministers for certain Union\r\nTerritories. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Article 239A as it originally stood provided that Parliament may by law\r\ncreate for the Union Territory of Puducherry a body to function as a\r\nLegislature for the Union Territory or a Council of Ministers or both.\r\nSuch a body to act as a Legislature of the Union Territory covered by\r\nArticle 239A may be elected or partly nominated and partly elected.\r\nBy virtue of Section 13 of the J&K Reorganisation Act, with effect from\r\n31st October 2019, Article 239A became applicable to the Union\r\nTerritory of J and K. As noted by clause (2) of Article 239A, the law\r\ncontemplated by clause (1) of Article 239A shall not be deemed to be\r\nan amendment to the Constitution for the purposes of Article 368\r\nnotwithstanding that it contains any provision which amends or has\r\nthe effect of amending the Constitution.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. Under sub-section (2) of Section 14 of the J&K Reorganisation\r\nAct, a Legislative Assembly for the Union territory of J and K has been\r\ncreated. Sub-section (3) provides that the total number of seats in the\r\nLegislative Assembly of the Union territory of J & K to be filled by the\r\npersons chosen by direct election shall be 107. Clause (a) of subsection (4) of Section 14 provides that 24 seats in the Legislative\r\nAssembly of the said Union territory shall remain vacant until the area\r\nof the Union Territory under the occupation of Pakistan ceases to be\r\nso occupied. We may note here that under the Constitution of Jammu\r\nand Kashmir, the seats in the State Legislative Assembly excluding 24\r\nseats earmarked for Pakistan occupied territory were 87 out of which\r\n7 seats were reserved for Scheduled Castes and Schedule Tribes.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. As far as the number of constituencies is concerned, we must\r\nalso refer to Part V of the J&K Reorganisation Act having the title\r\n“Delimitation of Constituencies”. Sub-section (1) of Section 60\r\nprovides that the number of seats in the Legislative Assembly of the\r\nUnion territory of J & K shall be increased from 107 to 114. However,\r\nthe excluded 24 seats covered by Pakistan occupied territory remain\r\nthe same. Thus, the total number of seats available now for holding <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">elections to the Legislative Assembly of the Union territory of J & K is\r\n90.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">23. Hence, as far as the Legislative Assembly of the Union territory\r\nof J & K is concerned, Article 170 will have no application as it forms a\r\npart of Chapter III of Part VI which deals with only the State\r\nLegislature. It has no application to the Legislatures of Union\r\nTerritories. The reason is that the Legislative Assemblies of the\r\nconcerned Union Territories will be governed by the law made by the\r\nParliament in accordance with Article 239A and not by the provisions\r\nof Chapter III of Part VI. As Article 170 is not applicable to the\r\nLegislature of the Union Territory of J & K, the main thrust of the\r\nargument that certain provisions of the J&K Reorganisation Act and\r\nactions taken thereunder are in conflict with Article 170 and in\r\nparticular Clause (3) thereof is clearly misconceived and deserves to be\r\nrejected.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">24. Now, we come to the issue of delimitation of constituencies of the\r\nLegislative Assembly of the Union territory of J and K. There were two\r\nearlier enactments dealing with the establishment of the Delimitation\r\nCommission. The first one was the Delimitation Commission Act, 1962 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and the second one was the Delimitation Act, 1972. Both the Acts\r\nwere not applicable to the State of Jammu and Kashmir as the\r\ndefinition of the State incorporated in both Acts specifically excluded\r\nthe State of Jammu and Kashmir. The same is the case with the\r\nDelimitation Act, 2002. We may note here that Section 3 of the J&K\r\nRP Act laid down the requirement of the establishment of the\r\nDelimitation Commission which provided that the Delimitation\r\nCommission shall distribute the seats in the Legislative Assembly to\r\nsingle member territorial constituencies and delimit them having\r\nregard to various factors mentioned in sub-section (2) of Section 3.\r\nSection 4-B of the J&K RP Act provided for the Delimitation\r\nCommission to pass an order regarding the delimitation of\r\nconstituencies and publish the same. In fact, the Delimitation of\r\nAssembly Constituencies Order, 1995 was issued which was\r\napplicable to the State of Jammu and Kashmir. Section 4-C of the J&K\r\nRP Act conferred power on the Election Commission to correct any\r\nprinting mistakes in the final order of the Delimitation Commission or\r\nany error or omission. The Election Commission was also empowered\r\nto make amendments when the boundaries or names of any district or\r\nany territorial division mentioned in the final order of the Delimitation\r\nCommission were altered.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. As noted earlier, the delimitation of 83 constituencies of the\r\nUnion Territory was made under the J&K Reorganisation Act and was\r\nincorporated in the Third Schedule as provided in sub-section (5) of\r\nSection 14. By virtue of the mandate of sub-section (1) of Section 60,\r\nthe total number of seats in the Legislative Assembly of the Union\r\nTerritory was required to be increased from 107 to 114. Thus, by\r\nexcluding 24 seats from Pakistan occupied areas, the mandate was to\r\nincrease the seats from 83 to 90. For giving effect to the increase in\r\nthe number of seats as aforesaid, the exercise of delimitation for\r\ndividing the Union Territory into 90 constituencies and determining\r\nthe number of seats to be reserved for Scheduled Castes and Schedule\r\nTribes was required to be undertaken. Sub-section (1) of Section 60\r\nprovides that the said delimitation exercise may be undertaken by the\r\nElection Commission. However, sub-section (2) of Section 62 provides\r\nthat the readjustment of the constituencies as provided under Section\r\n60 in the successor Union Territory of J & K into assembly\r\nconstituencies shall be carried out by the Delimitation Commission to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be constituted under the Delimitation Act, 2002 as amended by the\r\nJ&K Reorganisation Act. Sub-section (1) of Section 60, as noted\r\nearlier, provides that the exercise of the division of the newly\r\nconstituted Union Territory into 90 assembly constituencies and\r\nproviding for reservation may be undertaken by the Election\r\nCommission. However, the purport of Section 62 is that if a\r\nDelimitation Commission is constituted under the Delimitation Act\r\n2002, the exercise provided by clauses (a) to (c) of sub-section (1) of\r\nSection 60 shall be carried out by the Delimitation Commission.\r\nHowever, sub-section (2) of Section 62 refers to the readjustment of\r\nthe constituencies. But, the purport of sub-section (2) of Section 62 is\r\nthat the readjustment means the creation of 90 constituencies in the\r\nnewly set up Union territory. Thus, the process of readjustment\r\ncontemplated by sub-section (2) of Section 62 is nothing but the\r\nexercise of delimitation under sub-section (1) of Section 60.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. We have already quoted Section 60 of the J&K Reorganisation\r\nAct. Clause (c) of sub-section (1) thereof provides that considering the\r\nincrease in the number of seats of the Legislative Assembly, the\r\nadjustments in the boundaries and description of the extent of the\r\nParliamentary Constituencies in each Union Territory may be made by\r\nthe Election Commission. Sub-section (3) of Section 62 provides that\r\nreadjustment of the constituencies as provided in Section 11 in the\r\nsuccessor Union Territories into Parliamentary Constituencies shall be\r\ncarried out by the Delimitation Commission. The readjustment\r\nreferred to in sub-section (3) of Section 62 is the adjustment of\r\nboundaries and description of the extent of the Parliamentary\r\nConstituencies as provided in sub-section (1) of Section 60. This\r\nbecame necessary as a result of the requirement of\r\nreadjustment/delimitation of 90 constituencies of the Legislative\r\nAssembly. Therefore, there is no illegality associated with the\r\ndelimitation/readjustment of Parliamentary constituencies of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Union Territory of J & K undertaken by the Delimitation Commission.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>40. In the writ petition, the first prayer is for challenging the increase\r\nin number of seats from 107 to 114. The said provision is made by\r\nsub-Section (1) of Section 60. Without challenging the legality of any of\r\nthe provisions of the J&K Reorganisation Act, it is contended that the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Act of increasing the number of seats is violative of Articles 81, 82,\r\n170, 330 and 332 of the Constitution of India. Article 81 deals with\r\nthe composition of the House of the People; Article 82 deals with the\r\nreadjustment and allocation of seats of the House of Parliament after\r\nthe census and Article 170 deals with legislatures of the States. None\r\nof these provisions deal with the Legislature of any Union territory.\r\nArticle 330 deals with the reservation of seats for Scheduled Castes\r\nand Scheduled Tribes in the House of the People. Article 332 deals\r\nwith the reservation of seats for Scheduled Castes and Scheduled\r\nTribes in the Legislative Assemblies of the States. Both these\r\nprovisions do not deal with reservation of seats for the House of\r\nlegislature of Union Territories. In any case, even assuming that\r\nArticle 332 can be applied to the reservation of seats for Scheduled\r\nCastes and Scheduled Tribes in the Legislatures of Union territories, it\r\nis not shown how the act of increasing the total number of seats in the\r\nlegislature will offend Article 332, so long as the reservation is\r\nmaintained as per the formula provided under Article 332.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>43. The petitioners have overlooked the fact that clause (b) of subSection (1) of Section 62 of the J&K Reorganisation Act has further\r\namended the Delimitation Act, 2002 by providing that words and\r\nfigures ‘census held in the year 2001’ appearing in the Delimitation\r\nAct shall be construed as ‘census held in the year 2011’. To its\r\napplication to the Union territory of J & K, the year 2001 in subsection (1) of Section 9 of the Delimitation Act, 2002 has been\r\nsubstituted by the year 2011 and therefore, distribution of seats in the\r\nHouse of the People and seats assigned to the Legislative Assembly\r\nwill have to be readjusted on the basis of 2011 census and the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">delimitation will have to be carried out on the basis of the figures of\r\nthe census held in the year 2011. The effect of Section 63 is that once\r\nthe exercise of readjustment/delimitation is made on the basis of 2011\r\ncensus figures, the same will be frozen till the relevant figures of the\r\nfirst census taken after 2026 are available. Therefore, the exercise of\r\ndelimitation/readjustment of the seats in the Union Territory of J & K\r\nwas required to be made by the Delimitation Commission on the basis\r\nof the figures of the 2011 census. In view of Section 63, further\r\nreadjustment can be carried out only after the publication of figures\r\nfrom the census held after the year 2026. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>44. Reliance placed on the opinion of the learned Attorney General of\r\nIndia is misplaced as it deals only with the provisions of the A.P.\r\nReorganisation Act, 2014. The petitioners cannot rely upon the\r\nanswer given by Hon’ble Minister in the Lok Sabha as it deals with\r\ndelimitation of Constituencies in Telangana in the context of Article\r\n170. In any event, the said opinion as well as the answer given by the\r\nHon’ble Minister have no bearing on the interpretation of the J&K\r\nReorganisation Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">45. A vague attempt was made by the learned senior counsel\r\nappearing for the petitioners to submit that the exercise which is\r\nundertaken for the newly created Union territory of J & K was not </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">undertaken on the basis of the Uttar Pradesh Reorganisation Act,\r\n2000 and Andhra Pradesh Reorganisation Act, 2014. In both the Acts,\r\nthere is no provision which is pari materia with clause (b) of subSection (1) of Section 62 of the J&K Reorganisation Act which\r\namended the provisions of the Delimitation Act 2002 in its\r\napplicability to the newly formed Union Territories by substituting the\r\nyear 2001 with 2011.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>46. Thus, there is absolutely no merit in any of the contentions\r\nraised by the petitioners. We may, however, clarify that the findings\r\nrendered in the judgment are on the footing that the exercise of power\r\nmade in the year 2019 under clauses (1) and (3) of Article 370 of the\r\nConstitution is valid. We are aware that the issue of the validity of the\r\nexercise of the said powers is the subject matter of petitions pending\r\nbefore this Court. Therefore, we have not dealt with the issue of\r\nvalidity. Nothing stated in this judgment shall be construed as giving\r\nour imprimatur to the exercise of powers under clauses (1) and (3) of\r\nArticle 370 of the Constitution.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>47. Hence, writ petition is dismissed with no order as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '880f818de0f8306153ecd573c4cf4fc2.jpeg', '2da118949b0722be80f4b2c55a9a3079.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-15', 1, '', '', '2023-02-14 13:09:10', '2023-02-15 06:34:42');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2639, 'l99JHmqInDCZZT8yj3E6xS8KR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“It is the duty of the Court to uphold and maintain the dignity of the Courts and Majesty of the law”.  Karnataka High Court sends the contemnor to jail for selling property in gross violation of interim order. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Somanna and others Vs M. Mahadevappa and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>C.C.C 846 of 2017 decided on 3 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B. Veerappa and Justice K.S. Hemalekha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The present contempt petition is filed under\r\nSections 11 and 12 of the Contempt of Courts Act, 1971\r\n(hereinafter referred to as “the Act” for short) to take\r\naction and punish the accused-contemnor for deliberate\r\nand willful disobedience of the interim order of this Court\r\ndated 22.11.2012 in RSA No.553/2012.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The case of the complainants is that the\r\ncomplainants had filed suit in O.S. No.29/2009 for\r\npartition and separate possession of the suit schedule\r\nproperties which came to be dismissed by the Trial Court\r\nby its judgment and decree dated 01.02.2011.\r\nAggrieved by which, the complainants preferred\r\nR.A.No.145/2011, which is also came to be dismissed on\r\n05.12.2011. Aggrieved by the judgment and decree in\r\nthe regular appeal, the complainants preferred RSA\r\nNo.553/2012 before this Court and the said appeal was\r\nadmitted and an interim order was granted directing the\r\nrespondent therein i.e., the accused-contemnor not to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">alienate/encumber/create or otherwise discharge the\r\nsuit schedule property pending disposal of the appeal.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Having heard learned counsel for the parties\r\nand on perusal of the material on record, the point that\r\narises for our consideration is:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>\r\n“Whether the complainants have made out a\r\ncase to punish the accused-contemnor under <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Sections 11 and 12 of the Contempt of Courts\r\nAct in the peculiar facts and circumstances of\r\nthe present case?”</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. The accused-contemnor subsequent to the\r\nmortgage deed executed on 07.03.2014 vide AnnexureD in respect of item No.1 has cleared the loan amount\r\nand has obtained the registered Mortgage Clearance\r\nDeed dated 11.12.2017 vide Annexure-R1. Though the\r\nMortgage property has been cleared from encumbrance\r\nthe same does not absolve clear breach and violation of\r\nthe order of this Court dated 22.11.2012 in RSA\r\nNo.553/2012. It is also not in dispute that the third\r\nparty rights have been created as admitted by the\r\naccused-contemnor. Therefore, there is a clear violation\r\nand disobedience of the order passed by this Court and\r\nthe accused-contemnor is responsible for such an act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. From the overall consideration of the oral\r\nand documentary evidence on record and in light of\r\nseries of events, we hold that the accused-contemnor\r\nhas disregarded and violated the interim order granted\r\nby this Court vide order dated 22.11.2012 in RSA\r\nNo.553/2012.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n\r\n24. Now, the next question is whether for\r\ndisobedience of the order passed by this Court the\r\naccused-contemnor is liable for punishment? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">31. From the above decision, it is clear that the\r\npunishing the person for contempt of Court is indeed\r\ndrastic step and normally such action should not be\r\ntaken. However, at the same time, it is not only power\r\nbut the duty of the Court to uphold and maintain the\r\ndignity of the Courts and Majesty of the law which may </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">call for such extreme steps. For proper administration of\r\njustice and to ensure the due compliance with the orders\r\npassed by the Courts, it is required to take strict view\r\nunder the Act and it should not hesitate in wielding the\r\npotent weapon of contempt.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>32. The accused-contemnor by way of an\r\nadditional affidavit sought for an unconditional apology\r\nstating the third party rights were executed due to\r\nbonafide reasons.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34. Thus, we hold that the so called apology is\r\nnot an act of penitence, contrition or regret and the\r\nacceptance of such an apology in the case on hand\r\nwould be allowing the contemnors to go away with\r\nimpunity after committing gross contempt of Courts. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>35. Thus, in our considered view and in the facts\r\nand circumstances of the case, we answer the point\r\nraised for consideration in the Affirmative holding that\r\nthe complainants have made out a case and the\r\naccused-contemnor is guilty for having committing\r\nwillful disobedience of the order dated 22.11.2012 in\r\nRSA No.553/2012 and accordingly, answered the point\r\nframed for consideration.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36. For the reasons stated supra, the point\r\nframed for consideration is answered in the affirmative\r\nholding that the complainants have made out a case to\r\npunish the accused for the Contempt of Court under\r\nArticle 215 of the Constitution of India read with\r\nSections 11 and 12 of the Contempt of Courts Act. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The civil contempt petition is hereby allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fa9ee4c0e9f9e4a7c1f10b00226ad2f4.jpeg', 'c82522db429e5ccfafcab1bf5581bc99.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-08', 1, '', '', '2023-02-07 12:13:07', '2023-02-08 08:56:23'),
(2641, 'U6cr6GKI2LERjunR6Er7bskrg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Before taking cognizance of offence under Section 138 of N.I. Act against out of station accused, preliminary enquiry must be conducted as contemplated under Section 202 of Cr.P.C. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ajaya Marodia Vs Shivaramaiah K.M<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 2483 of 2019 decided on 3 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Respondent has filed a private complaint under Section\r\n200 of Cr.P.C. for the offence punishable under Section 138 of\r\nthe N.I. Act alleging that the accused had borrowed hand loan of\r\nRs.10,00,000/- and in discharge of the said liability had issued\r\nthree post dated cheques and when the said cheques were\r\npresented for realisation were dishonoured for want of funds.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n2. The learned Magistrate after recording the sworn\r\nstatement has taken cognizance of the aforesaid offence and\r\nissued summons to the petitioner-accused. Taking exception to\r\nthe same, petitioner-accused is before this Court. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The question whether the cheques were issued\r\ntowards legally enforceable debt or not can be considered after\r\nfull fledged Trial and at this stage, the question whether the said\r\ncheques were issued towards legally enforceable debt in the\r\nabsence of any evidence cannot be gone into.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 9. Perusal of the order taking cognizance by the learned\r\nMagistrate indicates that the learned Magistrate has perused the\r\nentire material on record before forming an opinion that there is\r\na prima facie case to proceed against the accused. The Hon\'ble\r\nSupreme Court in the case of Lalankumar Singh supra has\r\nheld that the formation of such an opinion is required to be\r\nstated in the order itself and the order taking cognizance is liable\r\nto be set aside if no reasons are given therein while coming to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the conclusion that there is a prima facie case against the\r\naccused.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n 10. In the instant case, though the learned Magistrate\r\nhas perused the material on record, however, has not assigned\r\nany reason while coming to the conclusion that there exists a\r\nprima facie case to proceed against the accused.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n 11. Admittedly, the accused is residing out side the\r\nterritorial jurisdiction of the learned Magistrate and as such the\r\nlearned Magistrate before taking cognizance ought to have\r\nconducted preliminary enquiry as contemplated under Section\r\n202 of Cr.P.C. Hence, the cognizance taken by the learned\r\nMagistrate without holding preliminary enquiry as contemplated\r\nunder Section 202 of Cr.P.C. is impermissible.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12. In view of the same, the impugned order passed by\r\nthe learned Magistrate taking cognizance of the offence\r\npunishable under Section 138 of N.I. Act requires to be quashed\r\nand the matter requires to be remanded to the learned\r\nMagistrate to proceed from the stage of taking cognizance.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> i) The Criminal petition is allowed; </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a95bc396ff70e97b73b52f9343c8baf5.jpeg', '2ae8bb233ef51069efa58d24badc30a1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-08', 1, '', '', '2023-02-07 14:59:51', '2023-02-08 12:31:07'),
(2642, 'WGhzz8uezRXgPDwozzG7rNwuM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Offences which have a serious impact on the society cannot be quashed in exercise of the powers under S.482 of the Cr.P.C, on the ground that the parties have resolved their entire dispute amongst themselves. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sudheesh Babu Vs State of Kerala and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL MC 5431 of 2022 decided on 27 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A. Badharudeen.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner in the above Crl.M.Cs is the sole accused\r\nin Crime No.280 of 2022 of Thirurangadi Police Station, where he\r\nalleged to have committed offences under Sections 324 and\r\n307 of Indian Penal Code (hereinafter referred to as `IPC\' for\r\nconvenience) as well as under Sections 3(1) (s), 3(2) (va) of\r\nthe Scheduled Caste/Scheduled Tribe (Prevention of Atrocities)\r\nAct, 2015 (hereinafter referred to as the `SC/ST Act\' for short).\r\nCrl.M.C No.684 of 2022 has been filed under Section 482 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the Code of Criminal Procedure (hereinafter referred to as\r\n`Cr.P.C\' for short) to quash Annexure 2 order dated 20.09.2022\r\nrejecting release of car bearing Registration No.KL 65 P 0790\r\ninvolved in the above crime.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. In the case on hand, the case is under investigation and\r\nso far no final report filed. Therefore, the quashment of the F.I.R\r\non the submission that the parties resolved their dispute could not\r\nbe considered at the crime stage, since such an exercise in cases\r\ninvolving offence under Section 307 of IPC is not permissible, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">before filing final report. It is relevant to note that in this matter\r\nvery serious offences are alleged to be committed by the accused.\r\nOn reading the case diary, the specific allegation is that at 8 p.m on\r\n27.04.2022, out of enmity, the petitioner herein, who was\r\nproceeding in a car caused hindrance to the defacto complainant on\r\nthe road and consequently he called his caste name and threatened\r\nhim that he would face dire consequences. Thereafter at 9 p.m on\r\n28.04.2022, the petitioner stabbed the defacto complainant with a\r\nknife and inflicted serious injury. This is the base on which,\r\ninitially crime was registered alleging commission of offence under\r\nSection 324 of I.P.C as well as under Sections 3(1)(s), 3(2)(va) of\r\nthe SC/ST Act against the accused, and without much delay,\r\noffence under Section 307 of I.P.C also was incorporated. The\r\ncopies of the medical records showing the treatment of the defacto\r\ncomplainant at Medical Hospital, Kozhikode as inpatient, are part\r\nof the case diary. In the third page of the treatment records </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(referred as `case record\') it has been stated that the physical\r\ncondition of the defacto complainant during the stage of admission\r\nat the hospital was very serious and the said fact was duly informed\r\nto the relatives.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. The defacto complainant underwent treatment for\r\npenetrating injury on the chest due to the stab injury caused by the\r\naccused, which is fatal, even as per the statement recorded as that\r\nof the doctor, who treated him. Therefore, it appears that even\r\nthough as per the ratio in State of Madhya Pradesh v. Laxmi\r\nNarayan & Ors. (supra), quashment of crime involving offence\r\nunder Section 307 of IPC is permissible for a court, after\r\ninvestigation and filing of final report, then also, if the prosecution <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is one which would show commission of heinous and serious\r\noffences and has a serious impact on society prima facie, with\r\nreference to the nature of injuries, it could not be held that the same\r\nis a fit case for quashment.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. It is relevant to refer further that the petitioner herein\r\nhad approached the Special Court seeking anticipatory bail and the\r\nsame was dismissed by the Special Court. Against which, the\r\npetitioner had filed Crl.Appeal No.691/2022 before this Court and\r\nas per judgment dated 12.10.2022 this Court dismissed the\r\napplication after discussing the nature and seriousness of the\r\noffences and also highlighting the above fact. It is thereafter, the\r\npresent petition to quash the complaint acting on the affidavit of the\r\ndefacto complainant has been filed, during the progress of\r\ninvestigation, by the petitioner/accused without conceding to the\r\ndomain of the investigating officer, so as to co-operate with the\r\ninvestigation. In fact, such a petition cannot be entertained by this </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court in view of the decision reported in State of Madhya Pradesh\r\nv. Laxmi Narayan & Ors. (supra). Further, the argument advanced\r\nby the learned counsel for the petitioner that initially offence under\r\nSection 307 was not there and the said offence was incorporated\r\nsubsequently also is of least significance, in a case, commission of\r\noffence under Section 307 of IPC could be gathered from the\r\nprosecution records inclusive of the medical records.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>16. Therefore, Crl.M.C No.5431 of 2022 is liable to be\r\ndismissed and is accordingly dismissed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7892f3b81c8578551ea2ee6a1e924e23.jpeg', 'ab53e2d44fd252eac0af0f673817c668.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-08', 1, '', '', '2023-02-07 15:05:38', '2023-02-08 06:58:19'),
(2643, 'cjNdYECe3TAWl1HqFto8grb1j', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Offence of money-laundering is triable only by the Special Court constituted for the area in which the offence of money-laundering has been committed. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rana Ayyub Vs Directorate of Enforcement.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition (CRIMINAL) 12 of 2023 decided on 7 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V. Ramasubramanian and Justice J.B. Pardiwala.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Challenging a summoning order issued by the Court of the\r\nSpecial Judge, Anti-Corruption, CBI Court No.1, Ghaziabad, on a\r\ncomplaint lodged by the respondent under Section 45 read with\r\nSection 44 of the Prevention of Money-laundering Act, 20021\r\n, the\r\npetitioner has come up with the above writ petition under Article\r\n32 of the Constitution of India.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. It is the case of the petitioner that during the pandemic, she\r\ninitiated crowdfunding campaign through an online\r\ncrowdfunding platform named “Ketto” and ran three campaigns\r\nfrom April 2020 to September 2021. In connection with the same,\r\nthe Mumbai Zonal Office of the Enforcement Directorate initiated\r\nan enquiry against the petitioner under the Foreign Exchange\r\nManagement Act, 19992\r\n through an Office Order dated 3.8.2021.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. It appears that thereafter a complaint was lodged on\r\n7.9.2021 by one Vikas Sankritayan, claiming to be the founder of\r\nHindu IT Cell, in FIR No.2049/2021 with Indirapuram Police\r\nStation, Ghaziabad for alleged offences under Sections 403, 406,\r\n418 and 420 IPC read with Section 66D of the Information\r\nTechnology (Amendment) Act, 2008 and Section 4 of the Black\r\nMoney Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. While things stood thus, a Look out Circular was issued\r\nagainst the petitioner, but the same was set aside by the High\r\nCourt of Delhi in a writ petition filed by the petitioner. In a\r\nsecond writ petition filed by the petitioner, the High Court of\r\nDelhi restrained the Directorate of Enforcement from taking\r\nfurther steps under Section 8 of the PMLA on the short ground\r\nthat the validity period of 180 days, of the order of provisional\r\nattachment, came to an end statutorily on 4.8.2022.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. From the rival contentions, it appears that two questions\r\narise for consideration before us. They are </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) whether the trial of\r\nthe offence of money-laundering should follow the trial of the\r\nscheduled/predicate offence or vice versa; and </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) whether the\r\nCourt of the Special Judge, Anti-Corruption, CBI Court No.1,\r\nGhaziabad, can be said to have exercised extra-territorial\r\njurisdiction, even though the offence alleged, was not committed\r\nwithin the jurisdiction of the said Court.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. It may be seen from the principles culled out from Sections\r\n177 to 184 of the Cr.P.C that almost all contingencies that are\r\nlikely to arise have been carefully thought out and laid down in\r\nthese provisions.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n35. The only contingency that could not have been provided in\r\nthe above provisions of the Cr.P.C, is perhaps where the offence\r\nof money-laundering is committed. This is why Section 44(1)\r\nbegins with a non-obstante clause. The whole picture is thus <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">complete with a combined reading of Section 44 of the PMLA and\r\nthe provisions of Sections 177 to 184 of the Cr.P.C.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>36. Once this combined scheme is understood, it will be clear\r\nthat in view of the specific mandate of clauses (a) and (c) of subsection (1) of Section 44, it is the Special Court constituted under\r\nthe PMLA that would have jurisdiction to try even the scheduled\r\noffence. Even if the scheduled offence is taken cognizance of by\r\nany other Court, that Court shall commit the same, on an\r\napplication by the concerned authority, to the Special Court\r\nwhich has taken cognizance of the offence of money-laundering.\r\nThis answers the first question posed before us.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>37. Coming to the second question arising for our\r\nconsideration, clause (a) of sub-section (1) of Section 44 leaves no\r\nsemblance of any doubt that the offence of money-laundering is\r\ntriable only by the Special Court constituted for the area in which\r\nthe offence of money-laundering has been committed. To find out\r\nthe area in which the offence of money-laundering has been\r\ncommitted, we may have to go back to the definition in Section 3\r\nof the PMLA.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>41. Having seen the legal landscape on the question of\r\njurisdiction, let us now come back to the facts of the case on\r\nhand. It is the case of the petitioner that what was attached by\r\nthe Enforcement Directorate under Section 5 of the Act as\r\nproceeds of crime, was the bank account of the petitioner in Navi\r\nMumbai, Maharashtra and that therefore the offence of moneylaundering, even according to the respondent has been\r\ncommitted in Maharashtra.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>42. But the said contention overlooks the six different types of\r\nprocesses or activities mentioned in Explanation (i) under Section\r\n3 of the Act, as connected with proceeds of crime, namely,\r\nconcealment, possession, acquisition, or use, etc.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>44. The bank account of the petitioner in HDFC Bank,\r\nKoperkhairane Branch, Navi Mumbai, Maharashtra, is the\r\nultimate destination, to which all funds reached. Therefore, Navi\r\nMumbai, Maharashtra is the place where the proceeds of crime\r\nwere taken possession of (if they were actually proceeds of crime).\r\nTherefore, Navi Mumbai, Maharashtra is a place where only one\r\nof the six different processes or activities listed in Section 3 has\r\nbeen carried out. The other activity namely acquisition of the\r\nproceeds of crime (if they really are) has taken place in the virtual\r\nmode with people from different parts of the country/world\r\ntransferring money online. If acquisition has taken place in the\r\nreal physical world, the difficulty with respect to the question of\r\njurisdiction would have been lesser. Since acquisition has taken\r\nplace in the virtual world, the places from where online transfers\r\nof money took place, are known only to the petitioner or perhaps\r\ntheir Bankers.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>45. Therefore, the question of territorial jurisdiction in this case\r\nrequires an enquiry into a question of fact as to the place where\r\nthe alleged proceeds of crime were (i) concealed; or (ii) possessed;\r\nor (iii) acquired; or (iv) used. This question of fact will actually\r\ndepend upon the evidence that unfolds before the Trial Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>46. Therefore, we are of the view that the issue of territorial\r\njurisdiction cannot be decided in a writ petition, especially when\r\nthere is a serious factual dispute about the place/places of\r\ncommission of the offence. Hence, this question should be raised\r\nby the petitioner before the Special Court, since an answer to the\r\nsame would depend upon evidence as to the places where any\r\none or more of the processes or activities mentioned in Section 3\r\nwere carried out. Therefore, giving liberty to the petitioner to raise\r\nthe issue of territorial jurisdiction before the Trial Court, this writ\r\npetition is dismissed. There will be no order as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'eaabf04aa5f2da41dd7bcffdb86da4dd.jpeg', '345b26c45921a8ce6275f433512dc840.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-09', 1, '', '', '2023-02-08 11:37:31', '2023-02-09 16:33:48'),
(2644, 'Vip6F0AY20OzKntzUg3hvQAql', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Merely because special warrant to search premises is lawful, prosecution cannot be launched without complying Section 155(2) of Cr.PC. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Thippeswamy and others Vs State.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Revision Petition 202 of 2014 decided on 18 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice R. Nataraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioners were tried for the offence punishable\r\nunder Section 80 of The Karnataka Police Act, 1963. It was\r\nclaimed that PW-7 received information that the petitioners\r\nwere playing a game of chance, namely \"Andar Bahar\" and\r\ntherefore, PW-7 after submitting a written request to PW-3 and\r\nafter obtaining a special warrant under Section 80 of The\r\nKarnataka Police Act, 1963, searched the premises and found\r\nthat the petitioners were playing a game of chance. PW-7\r\nseized the playing cards and a sum of Rs.1,48,970/- and two\r\ntarpaulins as M.Os.1, 2, 3 and 4 and thereafter, the prosecution\r\nafter recording the statement of the witnesses, filed a charge\r\nsheet for the offence punishable under Section 80 of The\r\nKarnataka Police Act, 1963. The petitioners pleaded not guilty\r\nand claimed to be tried and the prosecution examined PW-1 to\r\nPW-8 and marked exhibits as P1 to P6 and M.Os.1 to 4. The\r\nstatement of the petitioners was recorded under Section 313 of\r\nCr.PC, but they denied the evidence against them. However,\r\nthey did not lead any evidence.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Learned counsel for the petitioners submitted that,\r\nthe prosecution had failed to place on record proof of\r\ncompliance of proviso to Section 81, namely a written\r\ncomplaint by the officer conducting the search, based on which\r\na special warrant was issued. He contended that the offence\r\nunder Section 80 of The Karnataka Police Act was punishable\r\nwith imprisonment which could extend up to one year and\r\ntherefore was a non-cognizable offence. He therefore\r\ncontended that the prosecution was required to comply Section\r\n155(2) of Cr.PC before launching prosecution. In this regard, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">he relied upon the judgment of a Co-ordinate Bench of this\r\nCourt in Crl.P.No.8529/2017 and contended that Section\r\n155(2) of Cr.PC is applicable even in respect of offence\r\npunishable under Sections 79 and 80 of Karnataka Police Act.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 5. Learned High Court Government Pleader submitted\r\nthat the special warrant issued to conduct the search was\r\nbased on a written complaint and the same was evident from\r\nthe warrant itself. He contended that the petitioner did not\r\nchallenge this in Trial, but has raised this ground in the present\r\nrevision. He contended that no questions were posed to the IO\r\nat the time of trial. Therefore, he contended that the conviction\r\ncannot be challenged on this ground. He however could not\r\ncontradict the contention of the learned counsel for the\r\npetitioner that the prosecution had failed to comply with\r\nSection 155(2) of Cr.PC.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n 6. It is undisputed that an offence under Section 80\r\nwas non-cognizable. Assuming that the special warrant issued\r\nto search the premises was lawful, yet a prosecution could not\r\nhave been launched without complying Section 155(2) of Cr.PC</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. In that view of the matter, the prosecution of the\r\npetitioners has to fail on this fundamental defect.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> Therefore, these revision petitions are allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a0af20f61225dfd4e659d44ca7f9234c.JPG', 'ca6dcaa31e44be489a5e7e1008e0653a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-09', 1, '', '', '2023-02-08 13:26:52', '2023-02-09 03:17:46');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2647, 'ALd5M3NI08Cx3CvKaM02I3Zo9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Appointing authority has no power to go beyond the caste certificate issued by the competent authority. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Akshata Chougala and others Vs The State of Karnataka and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 23752 of 2022 decided on 30 January 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice M.Nagaprasanna.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">The petitioners are knocking at the doors of this Court calling in question the action of the respondents in declining to accept the caste and income certificates furnished by the petitioners along with their respective applications for appointment to the posts of Graduate Primary Teachers for 6th standard to 8th standard classes of 2022.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. For the sake of convenience, facts in brief in the subject Writ Petition – W.P.No.23752 of 2022, as borne out from the pleadings are narrated:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">A notification is issued on 22-02-2022, by the 1st respondent bringing in certain amendments to the Karnataka Civil Services General Recruitment Rules. In terms of the said notification, another notification on 21-03-2022 comes to be issued calling for applications from eligible candidates for recruitment to the posts of Graduate Primary Teachers from 6th standard to 8th standard classes in Government and aided&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">institutions. The petitioners in all these cases finding themselves eligible to be considered for appointment to the posts of Graduate Primary Teachers applied. While submitting their applications, the documents that were in their possession were all uploaded or attached to the said applications. One such document that was uploaded was the caste and income certificate. All other criteria in the cases of these petitioners were considered by the Deputy Director of Public Instruction (Adm.) of respective districts (for short ‘DDPI’), to whom the task of selection of Graduate Primary Teachers was entrusted. Every other criteria was accepted by the DDPI, except applications which accompanied caste and income certificates depicting the caste and income of the father of the applicants. This forms the bone of contention in all these cases. Those applications which accompanied caste and income certificate of the father were all treated to be general merit candidates despite being entitled to reservation under Category 2A, 2B, 3A and 3B, which forms the chunk of reservations under, other Backward Classes (OBC). The challenge that is raised is to the aforesaid action of treating all these petitioners to be general merit candidates and the reason for treating them being the marriage of daughters.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">7. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record. In furtherance whereof, the following issues arise for my consideration:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(i) Whether the writ petitions challenging the action of interpretation of caste and income certificates by the Selecting Authority - DDPI would be maintainable?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(ii) Whether the caste and income of the husband of the female applicant should be taken into consideration or the caste and income of the parents?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(iii) Whether the Selecting Authority – DDPI would get jurisdiction to interpret caste and income certificates issued by competent authorities?&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>Issue No. (i) : Whether the writ petitions challenging the action of interpretation of caste and income certificates by the Selecting Authority – DDPI would be maintainable?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">9...&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Apex Court considers the judgment of the larger Bench in the case of L.Chandra Kumar (supra) and then holds that in cases where thousands of employees are directed to approach the Tribunal, it would not be in a position to render justice to the cause and, therefore, in very exceptional circumstances, the High Court has to entertain the petitions and not dismiss them on the ground of alternative remedy as provided under the statute. The situation in the case at hand is similar to what arose before the Apex Court. There are hundreds of applications where the cases of applicants who come under the reservation of category 2A, 2B, 3A and 3B are held to be general merit candidates and the issue is only with regard to interpretation of whose caste and income should be taken into consideration i.e., the husband or the parents. Therefore, in this peculiar and atypical situation, I entertain the petitions despite objection of the State. Merely because there exists an alternative remedy as provided under the statute, fetters cannot be laid at the hands of this Court exercising its jurisdiction under Article 226 of the Constitution of India to remedy any situation which would warrant immediate and necessary interference. The first issue is thus answered against the State.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Issue No.II: Whether the caste and income of the husband of the female applicant should be taken into consideration or the caste and income of the parents?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">10. This issue is whether the caste and income of the parents should be taken into consideration or that of the spouse. One common stream that runs through all these cases is that the applications submitted by these petitioners were accompanied by caste and income certificates issued by the respective Tahsildars taking the caste and income of the father into consideration and not the spouse. The certificates were in tune with law. It is the action of the Selecting Authority – DDPI to have interpreted the law, to its whim, according to a Government Order dated 12.12.1986, to contend that on once the daughter gets married the income of the spouse will have to be considered for the purpose of caste and income certificate and not that of the parents. On these lines objections are also filed by the State, it has categorically contended that once the daughter gets married, she loses to be the dependent of the parents and then, the term dependent would mean the spouse and children of a married person and by no stretch of imagination the applicants can speculate that the spouse after marriage loses dependency on the parents. It is the emphatic&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">submission of the State that it is the spouse and only the spouse whose caste and income should be taken into consideration in the case at hand. I decline to accept any such submissions. The issue whether the caste and income of an individual should be taken into consideration or that of the parents should be taken into consideration or of the spouse to be taken into consideration need not detain this court for long or delve deep into the matter.&nbsp;</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Therefore, in the considered view of this Court, the issue stands covered by the judgment of the Apex Court in the case of SURINDER SINGH (supra) and the judgment of the Division Bench in the case of SMT. DIVYASHREE (supra) and that of the co-ordinate Bench in Smt. YOGESHWARI (supra). The submission of the learned Advocate General is, that the Apex Court in the case of INDRA SAWHNEY (supra) had permitted the State Governments to regulate the procedures providing reservations to other backward classes and therefore, the Government Order dated 12.12.1986 or the Government Order dated 28.10.1993 should be followed, would amount to placing the Government Order on a higher pedestal than that of the judgment of the Apex Court, the Division Bench of this Court and that of the co-ordinate Bench, which can by no stretch of imagination be done, therefore, the said submission is rejected.&nbsp;<span style=\"font-size: 12pt;\">In the result, I hold that the action of the Selecting authority - DDPI in interpreting and holding that the caste and income of the husband is to be taken into consideration is contrary to law and a direction is to be issued to the respondents to consider the applications of the petitioners on the basis of caste and income certificates of the parents and not their spouse and as belonging to the respective categories against which they have applied for. Issue No.2 is accordingly answered.&nbsp;</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Issue No.iii : Whether the Selecting Authority - DDPI would get jurisdiction to interpret caste and income certificates issued by competent authorities?</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">11. The issue is whether the Selecting Authority – DDPI would get the jurisdiction to interpret a caste certificate issued by the competent authority while undertaking the selection process. This issue need not detain this Court for long or delve deep into the matter&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The issue formulated by the Division Bench was whether the Selecting Authority – the Karnataka Examinations Authority therein, while finalizing the select list can decide about the validity of a caste and income certificate issued by the competent authority, it is answered against the Karnataka Examinations Authority, the Selecting Authority. The State tossed the said decision of the Division Bench unsuccessfully before the Apex Court in SLP No.12648 of 2019. Therefore, the finding of the Division Bench in so far as this Court is concerned has become final and the action challenged in the cases at hand is the one that was similar to what was challenged before the Division Bench i.e., the Selecting Authority interpreting caste and income certificate issued by the competent authority. In the light of the Selecting Authority - DDPI having no jurisdiction to do so, the action of the Selecting Authority, albeit on the Government Order dated 12.12.1986 and the directions of the State is unsustainable. Therefore, this issue is answered in favour of the petitioners and against the respondents.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">12. It is rather surprising that the State is time and again repeating the very same mistake and driving the applicants to knock at the doors of this Court despite the declaration of law by the Apex Court and that of this Court, by clinging on to a Government Order dated 12.12.1986, which is on the face of it unsustainable. Therefore, it is for the State to direct the selecting authorities to act in tune with law and not contrary to law. It is high time to state, sets its house in order, and refrain from generating unnecessary litigation.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">13. For the aforesaid reasons, I hold that the writ petitions are maintainable for the reasons rendered on issue No.1; the caste and income certificates submitted by the petitioners shall be taken into consideration by the Selecting Authority - DDPI; the Selecting Authority – DDPI has no jurisdiction to interpret the caste certificates issued by the competent authorities. The petition would thus succeed.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">ORDER</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(i) The Writ Petition is allowed.&nbsp;</span></p>', '7a5f695e23c4563f16bab7a8fad6a9c6.jpeg', '00f4c3ba888b39b61e1511b8ad1ab4e9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-09', 1, '', '', '2023-02-09 15:21:24', '2023-02-09 15:21:24'),
(2648, '9tNothFlTdyoi3yBqNRhMrKd5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Trial of the scheduled/predicate offence, insofar as the question of territorial jurisdiction is concerned, should follow the trial of the offence of money-laundering and not vice versa. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Rana Ayyub Vs Directorate of Enforcement.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition (CRIMINAL) 12 of 2023 decided on 7 February 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice V. Ramasubramanian and Justice J.B. Pardiwala.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">1. Challenging a summoning order issued by the Court of the Special Judge, Anti-Corruption, CBI Court No.1, Ghaziabad, on a complaint lodged by the respondent under Section 45 read with Section 44 of the Prevention of Money-laundering Act, 20021 , the petitioner has come up with the above writ petition under Article 32 of the Constitution of India.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. It is the case of the petitioner that during the pandemic, she initiated crowdfunding campaign through an online crowdfunding platform named “Ketto” and ran three campaigns from April 2020 to September 2021. In connection with the same, the Mumbai Zonal Office of the Enforcement Directorate initiated an enquiry against the petitioner under the Foreign Exchange Management Act, 19992 through an Office Order dated 3.8.2021.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">4. It appears that thereafter a complaint was lodged on 7.9.2021 by one Vikas Sankritayan, claiming to be the founder of Hindu IT Cell, in FIR No.2049/2021 with Indirapuram Police Station, Ghaziabad for alleged offences under Sections 403, 406, 418 and 420 IPC read with Section 66D of the Information Technology (Amendment) Act, 2008 and Section 4 of the Black Money Act.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">9. While things stood thus, a Look out Circular was issued against the petitioner, but the same was set aside by the High Court of Delhi in a writ petition filed by the petitioner. In a second writ petition filed by the petitioner, the High Court of Delhi restrained the Directorate of Enforcement from taking further steps under Section 8 of the PMLA on the short ground that the validity period of 180 days, of the order of provisional attachment, came to an end statutorily on 4.8.2022.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">16. From the rival contentions, it appears that two questions arise for consideration before us. They are</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(i) whether the trial of the offence of money-laundering should follow the trial of the scheduled/predicate offence or vice versa; and</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(ii) whether the Court of the Special Judge, Anti-Corruption, CBI Court No.1, Ghaziabad, can be said to have exercised extra-territorial jurisdiction, even though the offence alleged, was not committed within the jurisdiction of the said Court.<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">34. It may be seen from the principles culled out from Sections 177 to 184 of the Cr.P.C that almost all contingencies that are likely to arise have been carefully thought out and laid down in these provisions.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">35. The only contingency that could not have been provided in the above provisions of the Cr.P.C, is perhaps where the offence of money-laundering is committed. This is why Section 44(1) begins with a non-obstante clause. The whole picture is thus <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">complete with a combined reading of Section 44 of the PMLA and the provisions of Sections 177 to 184 of the Cr.P.C.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">36. Once this combined scheme is understood, it will be clear that in view of the specific mandate of clauses (a) and (c) of subsection (1) of Section 44, it is the Special Court constituted under the PMLA that would have jurisdiction to try even the scheduled offence. Even if the scheduled offence is taken cognizance of by any other Court, that Court shall commit the same, on an application by the concerned authority, to the Special Court which has taken cognizance of the offence of money-laundering. This answers the first question posed before us.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">37. Coming to the second question arising for our consideration, clause (a) of sub-section (1) of Section 44 leaves no semblance of any doubt that the offence of money-laundering is triable only by the Special Court constituted for the area in which the offence of money-laundering has been committed. To find out the area in which the offence of money-laundering has been committed, we may have to go back to the definition in Section 3 of the PMLA.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">41. Having seen the legal landscape on the question of jurisdiction, let us now come back to the facts of the case on hand. It is the case of the petitioner that what was attached by the Enforcement Directorate under Section 5 of the Act as proceeds of crime, was the bank account of the petitioner in Navi Mumbai, Maharashtra and that therefore the offence of moneylaundering, even according to the respondent has been committed in Maharashtra.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">42. But the said contention overlooks the six different types of processes or activities mentioned in Explanation (i) under Section 3 of the Act, as connected with proceeds of crime, namely, concealment, possession, acquisition, or use, etc.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">44. The bank account of the petitioner in HDFC Bank, Koperkhairane Branch, Navi Mumbai, Maharashtra, is the ultimate destination, to which all funds reached. Therefore, Navi Mumbai, Maharashtra is the place where the proceeds of crime were taken possession of (if they were actually proceeds of crime). Therefore, Navi Mumbai, Maharashtra is a place where only one of the six different processes or activities listed in Section 3 has been carried out. The other activity namely acquisition of the proceeds of crime (if they really are) has taken place in the virtual mode with people from different parts of the country/world transferring money online. If acquisition has taken place in the real physical world, the difficulty with respect to the question of jurisdiction would have been lesser. Since acquisition has taken place in the virtual world, the places from where online transfers of money took place, are known only to the petitioner or perhaps their Bankers.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">45. Therefore, the question of territorial jurisdiction in this case requires an enquiry into a question of fact as to the place where the alleged proceeds of crime were (i) concealed; or (ii) possessed; or (iii) acquired; or (iv) used. This question of fact will actually depend upon the evidence that unfolds before the Trial Court.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">46. Therefore, we are of the view that the issue of territorial jurisdiction cannot be decided in a writ petition, especially when there is a serious factual dispute about the place/places of commission of the offence. Hence, this question should be raised by the petitioner before the Special Court, since an answer to the same would depend upon evidence as to the places where any one or more of the processes or activities mentioned in Section 3 were carried out. Therefore, giving liberty to the petitioner to raise the issue of territorial jurisdiction before the Trial Court, this writ petition is dismissed. There will be no order as to costs.</span></span></p>', '8387919fa19499f1f83c4146aafd3077.jpeg', '0987779a140a782ad50ac0dc60b84e28.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-10', 1, '', '', '2023-02-09 15:34:55', '2023-02-10 07:55:54'),
(2649, 'tOb8b7Zlxd4xtFu2hYvsv5pNT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Once the Disabilities Act comes into force, Circulars cannot be relied on to downgrade the cadre as also to fix the pay-scale as per the downgraded cadre. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.B. Jayadevaiah Vs The Managing Director BMTC and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 31943 of 2014 decided on 17 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioner was appointed as a driver in the then\r\nBTS Division, KSRTC, during the year 1984. Upon\r\nformation of new Corporation-BMTC, the services of\r\nthe petitioner stood assigned to the BMTC i.e.,\r\nrespondent herein. While the petitioner was\r\ndischarging his duties as a driver, on 04.07.1999, the\r\nvehicle met with an accident wherein the petitioner\r\nsustained severe injuries viz., fracture of right\r\ntransverse process of T6, T7 and T8, fracture of\r\nposterior part of right T7 Rib, fracture of middle\r\ncolumn of T6 and anterior wedge compression\r\nfracture of T8 vertebra. The petitioner was admitted\r\nto St.John’s Medical College Hospital where he\r\nunderwent major surgery and was absent from duty\r\nfor a period of 11 months on account of\r\nhospitalization.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">5. In furtherance of the same, the Board exercising\r\npowers under Regulation 20 (3) of the KSRTC (Cadre\r\nand Recruitment) Regulations, 1982 (for short,\r\n‘Regulations’) referred the request of the petitioner\r\nto the Committee. The Committee recommended the\r\ncase of the petitioner for light work and by way of its </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">report dated 13.08.2002 directed for change of cadre\r\nof the petitioner from driver to that of office\r\nattender.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. It is not in dispute that the petitioner has suffered an\r\naccident during the course and scope of his\r\nemployment. It is also not in dispute that various\r\ninjuries were caused to the petitioner and that he\r\nsuffered from locomotor disability. Locomotor\r\ndisability is a disability in terms of Section 2 (i) (v) of\r\nthe Disabilities Act. The contention of the\r\nrespondent is that it is not only disability but the\r\npercentage of disability in terms of Section 2(t) of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Disabilities Act which would be required to make\r\nSection 47 of the Disabilities Act applicable.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. Section 2 (t) of the Disabilities Act defines a person\r\nwith disability to mean a person suffering from not\r\nless than 40% of any disability. This definition is\r\nrelating to a person with reference to disability in\r\nterms of Section 2(i) of the Disabilities Act.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. Section 47 of the Act deals with non-discrimination in\r\ngovernment employments and further mandates that\r\nno establishment shall dispense with or reduce in\r\nrank an employee who acquires a disability during\r\nhis service.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. The first proviso to the said Section makes it clear\r\nthat if an employee were to acquire disability and is\r\nnot suitable for the post that he was holding, he\r\ncould be shifted to some other post with the same\r\npay scale and service benefits.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. The second proviso makes it clear that if it is not\r\npossible to adjust the employee against any post, a supernumerary post would be created till he attains\r\nthe age of superannuation or a suitable post is\r\navailable, whichever is earlier. Thus, Section 47 of\r\nthe Disabilities Act categorically mandates that\r\nmerely because a person suffers from disability,\r\nhe/she shall not be reduced in rank but can only be\r\nshifted to another post subject to the pay-scale and\r\nthe service benefit that he/she was entitled to as on\r\nthat date being protected.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. I am of the considered view that once the Disabilities\r\nAct come into force Circular No.681 would not be\r\napplicable, the powers under regulation 20(3) of the\r\nRegulation can only be exercised in the event of the\r\nrequirement under Section 2(t) of the Disabilities Act\r\nbeing fulfilled that is to say that the disability has to\r\nbe 40% or more. In the event of the employee\r\nsuffering from disability of 40% or more as a matter\r\nof right such an employee would be entitled for the\r\nbenefit of Section 47 and for downgrading of the\r\ncadre without any adverse impact on the pay and the\r\nbenefits. Needless to say in the event of the\r\ndisability being less than 40% then Section 2 (t) of\r\nthe Disabilities Act not being applicable, such a\r\nperson not being a person with disability, Regulation <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20 (3) cannot be brought into force to downgrade\r\nthe cadre of such an employee.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">30. In the light of peculiar facts of this case, it is also\r\nrequired to make a mention that whenever a request\r\nis made under Regulation 20(3), necessary\r\ninstructions would have to be issued by the Road\r\nTransport Corporation to the Medical Board as also to\r\nthe concerned employee that the certification of\r\ndisability has to be obtained as on the date on which\r\nthe request for downgrading of the cadre is made\r\nand if no such information is conveyed to the Medical\r\nBoard or to the employee and the Road Transport\r\nCorporation were to act on it, then subsequent\r\nthereto, the Road Transport Corporation cannot be\r\nheard to contend that the certificate of the Medical\r\nBoard has to be on the date on which the application\r\nfor downgrading has to be made.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. In view of the above discussions, it is clear that the\r\nimpugned endorsement issued by the respondent in\r\nthe present case is not in accordance with law and\r\nfalls foul of Section 47 of the Disabilities Act. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i) The Writ Petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '24541107359a970139c62045644680f1.JPG', '50a51e016759d33543395a07a5909763.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-10', 1, '', '', '2023-02-09 15:59:17', '2023-02-10 10:36:57'),
(2650, 'YGOo6Ur5M74NoYHBEyFjkG57Z', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'IPC. Section 498A. General and omnibus allegations cannot manifest in a situation where the relatives of the complainant’s husband are forced to undergo trial. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gopika Basavantappa Hosamani Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 104244 of 2022 decided on 30 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Mohammad Nawaz.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This petition under Section 482 of Cr.P.C. is\r\npreferred to quash the proceedings pending in\r\nC.C.No.1034/2015 on the file of the Court of IV JMFC,\r\nBelagavi, in so far as the petitioner is concerned.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n2. Charge-sheet is filed against accused Nos.1 to 7\r\nfor offences punishable under Sections 498-A, 323, 504\r\nread with Section 149 IPC. The petitioner is arraigned as\r\naccused No.3 in the charge-sheet. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. In the case of Kahkashan Kausar Vs. State\r\nof Bihar reported in (2022) 6 SCC 599, the Hon’ble\r\nApex Court has held that in the absence of any specific\r\nrole attributed, it would be unjust if the accused are forced<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to go through the tribulations of the trial i.e general and\r\nomnibus allegations cannot manifest in a situation where\r\nthe relatives of the complainant’s husband are forced to\r\nundergo trial. Criminal trial leading to a eventual acquittal\r\nalso inflicts severe scars upon the accused and such an\r\nexercise must, therefore, be discouraged. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. It is also brought to the notice of the Court that\r\nin a joint memo filed before the Family Court, Belagavi in\r\na petition filed by the complainant seeking maintenance,\r\nit is stated that the complainant and her children have\r\nbeen taken back by her husband with an assurance that\r\nhe will look after their welfare and well being. The said\r\ncase was hence disposed of as not pressed. Further,\r\nM.C.No.149/2021 filed by the husband under Section 9 of\r\nthe Hindu Marriage Act, for restitution of conjugal rights is\r\nalso disposed of as not pressed since a memo was filed\r\nstating that with the intervention of the elderly persons,\r\nmatter is settled and respondent-wife joined the company\r\nof her husband.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. In the above facts and circumstances, criminal\r\nproceedings pending against the petitioner is nothing but <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">an abuse of process of the Court and the same deserves to\r\nbe quashed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b4f9f8978d71b646d405e5c2dfb7856c.JPG', 'b090c82479a08e85516c9cb869632904.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-10', 1, '', '', '2023-02-09 16:08:12', '2023-02-10 03:22:07');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2651, '98eymfDYp5TPRLB1Mf6tBYF3H', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Ownership of the land is a relevant consideration when acquisition proceedings are challenged. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Government of NCT of Delhi and another Vs Shakeel Ahmed and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 739 of 2023 decided on 9 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment\r\nand order passed by the High Court of Delhi at New Delhi in Writ Petition\r\n(C) No. 3539 of 2015 by which the High Court has allowed the said writ\r\npetition preferred by the respondent No. 1 herein – original writ petitioner\r\nand has declared that the land acquisition proceedings initiated under\r\nthe Land Acquisition Act, 1894 (hereinafter referred to as “Act, 1894”)\r\nwith regard to the land in question is deemed to have lapsed under <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 24(2) of the Right to Fair Compensation and Transparency in\r\nLand Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter\r\nreferred to as “Act, 2013”), the Government of NCT of Delhi and Anr.\r\nhave preferred the present appeal.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. From the impugned judgment and order passed by the High Court\r\nand even from the counter affidavit filed before the High Court, it\r\nappears that it was the specific case on behalf of the appellant and\r\noriginal respondents that the possession of the land in question was\r\ntaken on 04.03.1983 and even before the High Court, there was an\r\nownership dispute insofar as the subject land is concerned between the\r\noriginal writ petitioner and the original respondent No. 5. However,\r\ndespite the above and without going into the controversy of the physical\r\npossession, relying upon the decision of this Court in the case of Pune\r\nMunicipal Corporation and Anr. Vs. Harakchand Misirimal Solanki\r\nand Ors., (2014) 3 SCC 183, the High Court has allowed the said writ\r\npetition and has declared that the land acquisition proceedings initiated\r\nunder the Act, 1894 of the subject land is deemed to have lapsed under\r\nSection 24(2) of the Act, 2013.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. At the outset, it is required to be noted that as such the High Court\r\nought to have first decided the ownership dispute and thereafter ought to\r\nhave considered the locus of the original writ petitioner. Be that it may <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the decision of this Court in the case of Pune Municipal Corporation\r\nand Anr. (supra), which has been relied upon by the High Court while\r\npassing the impugned judgment and order has been specifically\r\noverruled by the Constitution Bench decision of this Court in the case of\r\nIndore Development Authority Vs. Manoharlal and Ors., (2020) 8\r\nSCC 129.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. In view of the above and applying the law laid down by this Court\r\nin the case of Indore Development Authority (supra) and when it was\r\nthe specific case on behalf of the appellant and original respondents that\r\nthe possession of the land in question was taken on 04.03.1983, the\r\nimpugned judgment and order passed by the High Court declaring that\r\nthe land acquisition proceedings initiated under the Act, 1894 with\r\nrespect to land in question is deemed to have lapsed under Section\r\n24(2) of the Act, 2013 is unsustainable and deserves to be quashed and\r\nset aside and is accordingly quashed and set aside.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Present appeal is accordingly allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> No costs.\r\nPending applications, if any, also stand disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '60739ad0e747edd31d5c8b4bc608b4c6.jpeg', 'e56625a82f778af0a85f986993d9c6b6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-10', 1, '', '', '2023-02-09 20:36:18', '2023-02-10 06:26:25'),
(2652, 'aWbKlpHhLwxU68hmMeKaTucks', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Company purchasing stolen gold jewellery. Employees of the Company cannot be prosecuted unless the Company is also made accused. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Honnegowda and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 1353 of 2018 decided on 5 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The FIR was lodged for the offence punishable under\r\nSections 454, 380 and 413 of IPC alleging that the gold\r\njewelleries belonging to the complainant was stolen by the\r\naccused and sold the same to the Attica Gold Pvt. Ltd., in various\r\nbranches.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The Hon\'ble Supreme Court in the case of R. Kalyani\r\n-vs- Janak C. Mehta and Others, reported in (2009) 1 SCC\r\n516 held that, \"If a person, thus, has to be proceeded with as\r\nbeing vicariously liable for the acts of the company, the company\r\nmust be made an accused. In any event, it would be a fair thing\r\nto do so, as legal fiction is raised both against the company as\r\nwell as the person responsible for the acts of the company\".</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n8. In the instant case, the charge sheet is laid against\r\nthe petitioners-accused Nos. 2 and 4 alleging that the company\r\nin which they are working as an employees have purchased the\r\nstolen gold jewelleries. In the absence of the company not being\r\narraigned as a accused, the petitioners-accused Nos.2 and 4\r\ncannot be held vicariously guilty of the same.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n9. Even otherwise, there is no material produced to\r\nsubstantiate the allegation that the petitioners-accused Nos.2\r\nand 4 as employees of the said company fully knowing that the\r\ngold jewelleries were stolen from the respondent No.2 have\r\npurchased the same, the registration of the FIR culminating in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">laying of the charge sheet is impermissible. Hence, the\r\ncontinuation of the criminal proceeding against the petitioners accused Nos.2 and 4 will be an abuse of process of law.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i) The Writ Petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3de34977b03093fe19340f56544c3059.jpeg', 'cb424a28d455b976ad7512ca57cd99c4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-11', 1, '', '', '2023-02-09 20:53:25', '2023-02-11 03:21:07'),
(2653, '1fSuYu7XrZx0chw8ZMs3Fqo0h', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act 1988. Rider of a borrowed vehicle can claim compensation under Section 163A for the death of pillion rider wife even though he steps into shoes of the owner and is responsible for the accident. Karnataka High Court.', '<h4>Vithal vs Parashuram and another.&nbsp;</h4><h4>Miscellaneous First Appeal 22199 of 2012 decided on 11 February 2021.&nbsp;</h4><h4>Justice N.S. Sanjay Gowda.&nbsp;</h4><h4>1. This appeal is filed challenging&nbsp; the dismissal&nbsp; of claim petition under Section 163A of the Motor&nbsp; Vehicles Act, 1988 (hereinafter referred to as “the MV Act”, for short).<br><br></h4><h4>4. The Tribunal has by the impugned order dismissed the claim petition on the ground that the claimant had borrowed the vehicle and since the accident had occurred when he was riding this borrowed motorcycle, he had stepped into shoes of the owner and was therefore himself liable to pay the compensation.<br><span style=\"background-color: rgb(255, 255, 0);\"><br></span></h4><h4><span style=\"background-color: rgb(255, 255, 0);\">5. The question that arises for consideration in this appeal is as to whether the claimant would be disentitled to compensation for the death of a&nbsp; pillion rider, who was his wife, on the premise that he had borrowed the vehicle and was riding the motorcycle and was himself responsible for the accident.</span><br><br></h4><h4>9. The first liability to pay compensation to victims is created under Section 140 of the MV Act, whereby, on the principle of no fault, a liability is created on the owner of a motor vehicle or the owners of motor vehicles (when more than one vehicle is involved) to pay compensation, whenever a death or a permanent disablement has resulted from an accident arising out of the use of a motor vehicle.&nbsp;<br><br></h4><h4>12. ...the victim of an accident would be entitled to a fixed sum of compensation, whether the owner was at fault or the victim himself was at fault. The objective which stands out from Section 140 is that the law mandates that the victim of a motor vehicle accident is bound to get compensation from the owner without reference&nbsp; to the person responsible for&nbsp; the accident. This establishes without a shadow of doubt that the MV Act is a piece of legislation which has been framed to ensure a victim is granted compensation whenever he suffers a motor vehicle accident.<br><br></h4><h4>13. The only other thing that is striking in Chapter X of the MV Act is that the right to claim compensation under Section 140 is in addition to&nbsp; the right of a victim&nbsp; to claim compensation under any other provision of the Act, except the right to claim under Section 163A of the Act. This means that if a person makes a claim under Section 140, he&nbsp; can also make a claim under Section&nbsp; 166 but cannot make a claim under Section 163A.<br><br></h4><h4>21. Section 163A starts off with a non-obstante clause. This clause declares that notwithstanding&nbsp; anything contained in the Act or in any other law for the time being in force or an instrument having the force of law, the owner of the vehicle or the authorised insurer, shall be liable to pay compensation as indicated in the second schedule, in the case of death or permanent disablement due to an accident which arose out of the&nbsp; use of a motor vehicle. This compensation is required to be paid to the legal heirs of a victim.<br><br></h4><h4>22. A plain reading of this provision would mean that no matter what is stated in any other provisions of the MV Act or for that matter any other law, whenever an accident occurs due to the use of a motor vehicle which results in the death or permanent disablement of a person, the heirs of that person (in case of death) or the victim (in case of permanent disablement), would have&nbsp; &nbsp;to be paid compensation as indicated in the second schedule.<br><br></h4><h4>23. In other words, whenever an accident occurs due to the use of a motor vehicle, resulting in the death or disablement, the legal heirs of the&nbsp; victim&nbsp; or&nbsp; the victim will have to be paid compensation as indicated in the second schedule and this compensation is required to be paid by the owner or the authorised insurer.<br><br></h4><h4>24.<span style=\"white-space: pre;\">	</span>As the section starts off with a non-obstante clause, the normal and general principles governing the claim for compensation under the MV Act or for that matter any other law can have no application. Furthermore, since the lawmakers have used the word “special provisions for payment of compensation” in this section, this provision has to be read and understood without reference to the general principles governing tort law.&nbsp;<br><br></h4><h4>25. This would mean that a special liability is created whenever an accident occurs resulting in the death or disablement and this extraordinary liability created cannot be escaped by recourse to the general principles governing the payment of compensation to accidents arising out of the use of Motor Vehicles act.<br><br></h4><h4>40. Thus, only if the claim is made under Chapter XII of the Act, adjudication would be contemplated or deemed permissible for determination of the&nbsp; “fault”&nbsp; factor in an accident and a consequential determination&nbsp; of the compensation payable and the person who is required to pay the said compensation.<br><br></h4><h4>41. It is therefore clear that on a collective&nbsp; reading of the provisions relating to liability to pay compensation, it is only in a proceeding under Chapter&nbsp; XII i.e., on an application under Section 166, that the Tribunal can get into the question of determining who&nbsp; was at fault and specify not only the compensation payable but more importantly specify whether the insurer or the&nbsp; owner or the driver or all of them are&nbsp; liable to pay the compensation.<br><br></h4><h4>42. As a corollary, in a proceeding under Section 163A, the Tribunal can only proceed to decide whether the accident arose due to the use of a motor vehicle and&nbsp; if the answer to the said question is affirmative, then it would have to direct the owner or the authorised insurer to pay the compensation. The question of who was at fault or negligent is a factor which would be completely outside the purview of a proceeding under Section 163A of the Act.<br><br></h4><h4>72. As could be seen from the abovementioned decisions rendered by bench of 3 Judges, the Insurer is forbidden from raising the plea of negligence and the negligence of either the owner of the vehicle or of any other person would be irrelevant in a proceeding under Section 163A of the Act. Further more, in the case of&nbsp; Ram Khiladi (supra), the Apex Court was dealing with a claim for compensation for the death of the rider of the motorcycle raised only against the owner and insurer of the motorcycle and in that context the Apex Court held that the rider of the motorcycle had stepped into the shoes of the owner and since a owner could not claim compensation against his own insurer, the claim could&nbsp; not be entertained. However, in this case, the claim is by the pillion rider and hence, the said decision cannot be made applicable.<br><br></h4><h4>73. In this case, since admittedly the accident has occurred due to use of a motorcycle it would be irrelevant as to who was the rider of the vehicle and the victim of the accident would have to be compensated as per the compensation set out as per Schedule-II of Section 163A of the Act.<br><br></h4><h4>77. The Insurance Company is directed to deposit the compensation amount with interest within a period of eight weeks from the date of receipt of a certified copy of this order.</h4>', '102a5fed5abe84c61c56917caed573ca.jpeg', '4a0d8cdee005f6cb94a0ae47b584ce1f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-10', 1, '', '', '2023-02-10 10:51:04', '2023-02-10 10:51:04'),
(2655, 'X3OgcJTlWno6O1CtPZ82aAmQt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Consumer Protection Act. Failure of the developer to provide playground, community hall, landscape gardening, generator backup, multi-gymnasium, etc. as mentioned in the brochure/advertisement amounts to unfair trade practice. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Debashis Sinha and others Vs M/S R.N.R Enterprise and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3343 of 2020 decided on 9 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Ravindra Bhat and Justice Dipankar Datta.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This appeal under section 23 of the Consumer Protection Act,\r\n1986 (hereafter ‘the C.P. Act’, for short) calls in question the order\r\ndated 21st August, 2020 passed by the National Consumer Disputes\r\nRedressal Commission, New Delhi, (hereafter ‘NCDRC’, for short). By\r\nthe impugned order, the NCDRC has dismissed the consumer\r\ncomplaint lodged by the appellants. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The multiple appellants are owners of flats in different blocks\r\nof a housing complex at 1, Kailash Ghosh Road, Kolkata – 700008\r\n(hereafter ‘housing complex’, for short). </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. Aggrieved by the failure of the respondents - the developers of\r\nthe housing complex - to provide services as promised, the\r\njurisdiction of the NCRDC was invoked by the appellants in 2008.\r\nThey alleged that despite paying full consideration amount as per\r\nmarket rate and despite execution and registration of deeds of\r\nconveyance in their favour, the respondents had failed, inter alia, to\r\nprovide the ‘Completion Certificate’, which is their statutory\r\nobligation as per the rules of the Kolkata Municipal Corporation\r\n(hereafter ‘KMC’, for short); and, in the absence of such a certificate,\r\ntheir occupation of the respective flats has been rendered\r\nprecarious. According to the appellants, the respondents also failed\r\nto provide them common amenities and facilities viz., playground,\r\ncommunity hall-cum-office room, 33-feet wide concrete road, and\r\nsupply of water from the KMC. It was their further complaint that\r\nthe respondents had adopted unfair trade practices by promising a\r\nplayground on a land which actually belonged to a local club as well\r\nas attracted buyers by showing in the brochure/ advertisement a\r\n‘beautified lake’, which never came into existence. Also, finding that\r\nthere were constructional defects, a valuer from the list of approved\r\nvaluers maintained by the Calcutta High Court had been engaged by\r\nthe appellants. The report of such valuer revealed constructional\r\ndefects of the nature delineated therein. Based on the complaint\r\nthat was lodged before the NCDRC, the appellants sought direction </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to the respondents to provide the completion certificate of the\r\nproject and to set right the constructional defects as pointed out by\r\nthe valuer. Further, they claimed that direction be issued for\r\nproviding other facilities such as community hall, landscape\r\ngardening, generator, multi-gymnasium, water filtration plant, and\r\ngas pipeline. Additionally, compensation of Rs.1,80,00,000/- (Rupees\r\none crore eighty lakh only) together with litigation cost of\r\nRs.50,000/- (Rupees fifty thousand only) was claimed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. What has struck us first is the time taken by the NCDRC to\r\ndecide the complaint after it reserved the same for passing orders. It\r\ntook the NCDRC in excess of 10 (ten) months to dismiss the\r\ncomplaint. As our discussion hereafter would unfold, we are of the\r\nclear view that the long delay in passing the order on the complaint\r\ndid have its own effect on the ultimate decision of the NCDRC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. Sub-section (2) of section 403 of the KMC Act was referred to\r\nby the NCDRC in the impugned order. Sub-section (1) thereof, which\r\nfinds no reference therein, requires every person giving notice\r\nunder section 393 or section 394 or every owner of a building or a\r\nwork to which the notice relates to send or cause to be delivered or\r\nsent to the Municipal Commissioner a notice in writing of completion\r\nof erection of building or execution of work within one month of such\r\ncompletion/erection, accompanied by a certificate in the form <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">specified in the rules made in this behalf as well as to give to the\r\nMunicipal Commissioner all necessary facilities for inspection of such\r\nbuilding or work.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n17. Section 393 mandates every person, who intends to erect a\r\nbuilding, to apply for sanction by giving notice in writing of his\r\nintention to the Municipal Commissioner in such form and containing\r\nsuch information as may be prescribed together with such\r\ndocuments and plans. Similarly, section 394 also mandates every\r\nperson who intends to execute any of the works specified in clause\r\n(b) to clause (m) of sub-section (1) of section 390 to apply for\r\nsanction by giving notice in writing of his intention to the Municipal\r\nCommissioner in such form and containing such information as may\r\nbe prescribed.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18. It is, therefore, evident on a conjoint reading of sections 403,\r\n390, and 394 of the KMC Act that it is the obligation of the person\r\nintending to erect a building or to execute works to apply for\r\ncompletion certificate in terms of the rules framed thereunder. It is\r\nno part of the flat owner’s duty to apply for a completion certificate.\r\nWhen the respondents had applied for permission/sanction to erect,\r\nthe Calcutta Municipal Corporation Buildings Rules, 1990 (hereafter\r\n‘1990 Rules’, for short) were in force. Rule 26 of the 1990 Rules\r\nhappens to be the relevant rule. In terms of sub-rules (1) to (3) of\r\nrule 26 thereof, the obligation as cast was required to be discharged </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by the respondents. Evidently, the respondents observed the\r\nstatutory provisions in the breach.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n19. Curiously enough, the NCDRC referred to sub-section (2) of\r\nsection 403 of the KMC Act only to permit the respondents to\r\nwriggle out of such obligation and arrived at a completely erroneous\r\nfinding that no deficiency in service could be attributed to the\r\nrespondents since both the respondents and the appellants had\r\nacted in violation of law. True it is, the appellants ought not to have\r\ntaken possession without the completion certificate; however, that\r\nwas not a valid ground not to direct the respondents to apply for and\r\nobtain the completion certificate as required by law. The mere fact\r\nthat the flat owners were being assessed by the KMC affords no\r\nreason to the respondents for breaching section 403(1) read with\r\nrule 26 of the 1990 Rules. Of course, once a completion certificate is\r\nissued by the KMC upon conducting appropriate inspection and tests\r\nof the building that has since been erected, it would stand to reason\r\nthat the same amounts to a certification that the building does not\r\nsuffer from any violation of the building plan sanctioned for the\r\npurpose under section 390 of the KMC Act or that its constructional\r\nquality is not of the desired level for which it is unsafe for human\r\nhabitation. We are constrained to observe that the respondents have\r\nbeen let off by the NCDRC in a manner contrary to law.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>20. For such infirmities, as noticed above, this is an appropriate\r\ncase where the complaint of the appellants ought to be remitted to\r\nthe NCDRC for taking a relook into the complaint in accordance with\r\nlaw. It is ordered accordingly.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>21. Since it is found that the appellants while praying for monetary\r\ncompensation of Rs.1,80,00,000.00 have failed to give detailed\r\nparticulars and/or provide the basis therefor, and undoubtedly, they\r\nhave also been on the wrong side of law by taking possession of\r\ntheir respective flats without the completion certificate, whatever\r\nmight be the compulsion, we are not inclined to direct the NCDRC to\r\ndecide on the compensation component. That chapter stands\r\nclosed. The remand is directed only with a view to secure adherence\r\nto the promises that the respondents had made in the brochure\r\nand/or advertisement, as the case may be, and thereby cover up\r\ndeficiency in service, if any, as well as the mandatory statutory\r\nprovisions.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>22. The appeal stands disposed of on terms as aforesaid, with no\r\norders as to costs. </b></span></span></p>', '36d52ec879ac2bb09e68e8281e5b9b82.jpeg', '2789f956b8a1f883e7f38328bf3b6b75.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-13', 1, '', '', '2023-02-10 14:01:16', '2023-02-13 10:50:04'),
(2656, 'qmGlwpyr4DE86OC0CR1d6vzjb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Right to claim maintenance shall not be rendered illusory.” Karnataka High Court issues guidelines for early disposal of maintenance petitions. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pratibha Singh Vs Vineet Kumar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 21852 of 2022 decided on 8 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court seeking modification of\r\norder dated 26-08-2022 passed by the I Additional Principal Judge,\r\nFamily Court at Bangalore in M.C.No.3726 of 2019 granting interim\r\nmaintenance to the petitioner/wife at `15,000/- and litigation\r\nexpenses at `50,000/- for enhancement of the same to `1,50,000/-\r\nper month as interim maintenance and `2,00,000/- as one time\r\nlitigation expenses. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Brief facts that leads the petitioner to this Court in the\r\nsubject petition, as borne out from the pleadings, are as follows:-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The petitioner is the wife and the respondent, her husband.\r\nThe two get married on 22-04-2016. On several allegations, it\r\nappears that after about six months of marriage the wife leaves the\r\nmatrimonial house and begins to reside in her parental house. Long\r\nafter the alleged separation, the respondent/husband registers a\r\npetition seeking annulment of marriage in M.C.No.3726 of 2019\r\nunder Section 13(1)(ia) & (ib) of the Hindu Marriage Act, 1955 (‘the\r\nAct’ for short). The petitioner, upto the month of May 2020 claims\r\nthat she was working and earning a salary of `35,000/- and due to\r\nonset of Covid-19 she was laid off and had no avocation to maintain\r\nherself. Therefore, she files an application before the concerned\r\nCourt invoking Section 24 of the Act seeking interim maintenance\r\nat `1,50,000/- per month and one time litigation expenses at\r\n`2,00,000/-. The concerned Court by its order dated 26-08-2022\r\npasses an order directing payment of interim maintenance at\r\n`15,0000/- and one time litigation expenses at `50,000/-. It is this\r\norder that drives the wife to this Court seeking enhancement of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">maintenance on the ground that it is too meager to maintain\r\nherself.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">7. The issue lies in a narrow compass, as to whether the\r\npetitioner/wife is entitled to enhancement / modification in\r\nmaintenance from what is awarded by the concerned Court. The\r\nmarriage between the petitioner and the respondent is not in\r\ndispute and the petitioner leaving the matrimonial house and\r\nresiding in the parental house form 27-10-2016 is what is averred\r\nin the petition by the wife. The husband instituted proceedings on\r\n08.07.2019 before the Court in M.C.No.3726 of 2019 seeking\r\nannulment of marriage is a matter of record. Once proceedings\r\nwere instituted on 08-07-2019 by the husband, the petitioner/ wife\r\nfiles her objections to main petition and also files an application\r\nunder Section 24 of the Act on 06-03-2020. By then the Apex\r\nCourt had rendered its judgment in the case of RAJNESH v. NEHA\r\nAND ANOTHER2\r\n in which the Apex Court directed that if the wife is\r\nseeking maintenance at the hands of the husband under any\r\nprovision of law i.e., Section 24 of the Act; Section 125 of the\r\nCr.P.C.; Section 12 of the Protection of Women from Domestic\r\nViolence Act an affidavit and assets and liabilities statement were to\r\nbe filed in futural cases and in cases pending adjudication of such </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">applications seeking maintenance.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Insofar as the judgment relied on by the learned senior\r\ncounsel for the respondent in the case of DR. E.SHANTHI (supra), <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">it would become distinguishable on the facts obtaining in the case\r\nat hand without much ado. This Court had indicated that there was\r\nno difficulty for the petitioner therein to work as a Doctor, as she\r\nwas, in fact, running a clinic. The facts in that case are not akin to\r\nwhat is in the case at hand. Even otherwise, much water has flown,\r\nin the concept of maintenance to be paid by the husband since\r\n2005, by judgments rendered by the Apex Court from time to time,\r\na few of which have been quoted hereinabove.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. Maintenance pendente lite is sought under Section 24 of\r\nthe Hindu Marriage Act, 1955, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Proviso to Section 24 directs that an application filed under\r\nSection 24 seeking maintenance should be disposed as far as\r\npossible within 60 days. The term “as far as possible” is being\r\ninterpreted that the Court can pass orders even after six months in\r\nsome cases, two years, three years or even four years after filing </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the application. This delay in considering those applications for\r\nmaintenance would defeat the very soul of the provision which is to\r\ngive succor to the wife who leaves or made to leave the\r\nmatrimonial house on myriad circumstances. Merely, because the\r\nprovision directs disposal of the application, as far as possible\r\nwithin 60 days, it cannot be stretched to an extent by the Courts to\r\nan extent that the wife would not see the amount of maintenance\r\nfor ages.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. It, therefore, becomes necessary for the concerned Court\r\nto adhere to a timeline for disposal of the applications seeking\r\nmaintenance at the hands of the husband when sought by the wife,\r\nso that the right to claim maintenance is not rendered illusory. In\r\nthe case at hand also, the husband institutes proceedings under\r\nSection 13 of the Act seeking divorce. The wife files an application\r\non 06-02-2020 under Section 24 of the Act. The husband files his\r\nobjections along with the assets and liabilities statement more than\r\n19 months after the application is filed i.e., on 28.11.2021. The\r\nCourt decides the application on 26-08-2022 and directs payment\r\nto be made from the date of the application. Therefore, the Court <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">has decided the issue in the case at hand after 30 months of filing\r\nof the application.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. It thus becomes imperative for this Court to issue\r\ndirections to the concerned courts to adhere to a timeline, in all\r\ncases, where applications are filed for maintenance under section\r\n24 of the Act. The concerned Courts shall adhere to the following\r\ntimeline:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\na. Notice on the application be issued immediately.\r\nService through E-mail / What’s App, shall also be\r\nvalid service in the eye of law.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\nb. The concerned Court shall grant two months to the\r\nhusband to file his objections to the application filed\r\nby the wife seeking interim maintenance under\r\nsection 24 of the Act.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>c. The wife also should be given the same two months\r\nto file statement of assets and liabilities.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>d. On the assets and liabilities so filed by the wife, the\r\nconcerned Court shall consider the contentions of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the parties, hear them and pass appropriate orders,\r\nwithin four months thereafter, if not earlier.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>e. Therefore, the outer limit to decide any application\r\nseeking interim maintenance is six months from the\r\ndate of its filing.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>f. To achieve this timeline, the concerned Court should\r\nrefrain itself from granting unnecessary\r\nadjournments to both the husband and the wife.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>g. If the husband or the wife would not co-operate\r\nwith the closure of the proceedings qua the\r\napplication for interim maintenance the Court would\r\nbe free to pass appropriate orders in accordance\r\nwith law.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">h. Any delay beyond six months should be only on\r\nreasons recorded in writing in the order that would\r\nbe passed.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>It is made clear that the concerned Courts shall adhere to the\r\naforesaid timeline, as the wife should not be made to wait for years\r\ntogether, to get certain amount of maintenance from the hands of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the husband. In many a case, the wife would be driven to penury,\r\nthe moment she walks out of the matrimonial house on manifold\r\nreasons. To avoid the wife being driven to such impecuniosities, the\r\naforesaid timeline should be strictly followed</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> (i) The Writ Petition is allowed in part. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '421afc41a90ef8fb00596d4967bf371b.jpeg', '7723243a581603a22783384cb1eefb44.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-11', 1, '', '', '2023-02-10 14:14:53', '2023-02-11 10:14:03');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2657, '9WVXrEY87HXBM3VeqQAW4kc9e', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Tax on electricity payable by consumer shall be on the basis of rate at which consumer purchases from Open Access Source  and not at the rate at which the licensee sells to its consumers. Karnataka High Court.', '<h4><b>M/s. Southern Ferro Ltd vs The State of Karnataka others.</b></h4><h4><b>Writ Petition 105054 of 2017 decided on 15 March 2021.</b></h4><h4><b>Justice N.S. Sanjay Gowda<br></b></h4><h4><b>1. A demand to pay a sum of `94,47,534/- being a demand for payment of tax on electricity consumed by&nbsp; the petitioner is a subject matter of this writ petition.<br></b></h4><h4><b>2. Petitioner contends that apart from electricity supplied by the licensee i.e., Hubli Electricity Supply Company Limited (hereinafter referred to as ‘HESCOM’, for short), it is also supplying energy from the energy exchange every month which is called as purchase of electricity from&nbsp; Open&nbsp; Access&nbsp; Source.&nbsp; Petitioner contends that the price paid for purchase of electricity through Open Access Source is different than the price paid by it for the electricity sold to it by the licensee – HESCOM. Petitioner admits that it is liable to pay tax on the electricity consumed by it whether it is purchased from the HESCOM or purchased from Open Access&nbsp; Source. Petitioner, however, contends&nbsp; that&nbsp; the&nbsp; electricity tax i.e., to be paid should be levied on the price at which it purchases, be it from the licensee or from the Open Access Source.<br></b></h4><h4><b>9. As could be seen from Section 3 of the Act, electricity tax is levied on advolorem basis at 6% on the charges payable on electricity sold to or consumed by&nbsp; any consumers when electricity supplied by licensee or a non-licensee through a licensee or otherwise. Thus, whenever electricity is sold to a consumer or it is consumed by a consumer, electricity tax&nbsp; is&nbsp; attracted. The intent of the said Section is clear that whenever electricity is consumed by a consumer within the State of Karnataka, the consumer is bound to pay electricity tax on that on advolorem basis at the rate of 6% on the charges payable on the electricity sold or consumed.<br></b></h4><h4><b>23. It is not in dispute that electricity that is purchased through Open Access Source is not a purchase which is shrouded in mystery. In fact, it is the admitted case of both parties that electricity is purchased through an electricity exchange where the consumer makes a purchase on&nbsp; the previous day at the rate prevailing in&nbsp; the exchange and at the end of the month, the units of electricity sold by the consumers is intimated to the State Load Dispatching Centre. It can, therefore,&nbsp; be easily gathered as to the quantum of electricity&nbsp; purchased by the consumer and the rate at which the consumer had purchased the electricity. It is&nbsp; quite obvious that electricity tax would have to be levied and collected at a particular rate at which the consumers had purchased the electricity from the electricity exchange.<br></b></h4><h4><b>26. It is to be stated here that the petitioner&nbsp; admits that it is liable to pay tax under Section 3 of the Act and since, the liability of the petitioner to pay&nbsp; tax&nbsp; is admitted, reliance placed by learned Additional Advocate General on the judgment which upheld the validity of Section 3 of the Act would not be of any sustenance.<br>27. I am, therefore, of the view that the demand made by HESCOM by computing the tax at the rate at which it was selling electricity to its consumers cannot be&nbsp; the basis for levying and collecting the electricity tax. Annexure-A is, therefore, quashed. HESCOM shall now calculate the electricity tax at the rate at which the petitioner had purchased the electricity from Open&nbsp; Access Source and issue a revised demand within a&nbsp; period of two weeks from the date of receipt of a certified copy of this order.<br></b></h4><h4><b>28. The amounts, if any, deposited by the petitioner pursuant to the interim orders granted by&nbsp; this&nbsp; Court shall be adjusted and if there is any sum in excess, the same may be refunded to the petitioner. If, on the other hand, further sums to be paid by the petitioner,&nbsp; petitioner shall pay the same within a period of&nbsp; two weeks from the date of demand.<br></b></h4><h4><b>Writ Petition is accordingly allowed.</b></h4>', '111277646cb0ed44deb01f41800c418b.JPG', '5819ad300fcdd703d725fdb9648df55d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-10', 1, '', '', '2023-02-10 14:33:05', '2023-02-10 14:33:05'),
(2659, 'PL1b2yoArpcMbbZzXu1xVLzCQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Kerala Courts Fees and Suits Valuation Act. Court fee cannot be refunded after the suit is decided on merits. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>S. Surendran Vs State of Kerala and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>OP(C) 2463 of 2019 decided on 12 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice C.S. Dias.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Can court fee be refunded after the suit is decided on\r\nmerits is the question that arises for consideration?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The skeletal facts leading to Ext.P6 order are as\r\nfollows:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) The petitioner had filed the suit against the\r\nrespondents for a decree for damages.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(ii) By Ext.P1 judgment, the court below dismissed\r\nthe suit. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(vii) The court below, by the impugned Ext.P6 order,\r\ndismissed Ext.P3 application.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> (viii) Ext.P6 is patently erroneous and wrong. Hence,\r\nthe original petition.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. After analysing the pleadings and evidence on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">record, the court below deemed it fit to frame additional\r\nissue No.8, i.e., whether the court has the jurisdiction to\r\nentertain the suit in the light of Section 64 (3) of the Chit\r\nFunds Act, 1982 and Rule 47 of the Kerala Chit Funds\r\nRules, 2012.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11. After hearing both sides, the court below\r\ndismissed the suit by answering issue No.8 against the\r\npetitioner and holding that suit was hit by Section 64 (3)\r\nof the Chit Funds Act, 1982.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Undisputedly, Ext.P1 judgment and decree have\r\nnot been challenged by the petitioner and have attained\r\nfinality.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Subsequently, the petitioner filed Ext.P3\r\napplication for the return of the plaint, the plaint\r\ndocuments and the refund of the court fee of Rs.\r\n8,18,400/- and the legal benefit fund stamp of\r\nRs.1,00,000/-.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. A reading of clauses (c) and (d) of the above\r\nprovision demonstrates a marked difference. Obviously, if\r\nthe requisite stamp paper is not supplied within the\r\nprescribed time period, the courts have no other option\r\nbut to reject the plaint under Order 7 Rule 11 (c), which\r\nwould always be before the parties go to trial. That is not\r\nthe case in a rejection under Order 7 Rule 11 (d). If the\r\nsaid provision is to be invoked, the suit should appear\r\nfrom the statement in the plaint to be barred by any law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. In the instant case, the court below initially\r\nformulated seven issues and proceeded with the trial. It is\r\nafter the completion of the trial, it appeared to the court\r\nbelow that the suit was barred by law. Accordingly, the\r\ncourt below framed additional issue No.8, heard the\r\nparties and then dismissed the suit, holding that the suit\r\nwas hit by the Chit Funds Act, 1982.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. Without challenging the decree, the petitioner\r\nfiled Ext.P3 application for the return of the plaint, the\r\nplaint documents, for the refund of the court fee, alleging\r\nthat the court below has committed a mistake in\r\ndismissing the suit instead of rejecting the plaint. Hence,\r\nthe petitioner is entitled to a refund of the court fee\r\nunder Section 70 of the Kerala Courts Fees and Suits\r\nValuation Act, 1959.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. Interpreting Section 70 of the Act, a Division\r\nBench of this Court in Linsaraj v. State of Kerala [2018\r\n(1) KLT 626] has, in unequivocal terms, held that Section\r\n70 of the Act comes into play only when there is no\r\nadjudicatory process.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. Ext.P1 is a judgment rendered after a full-fledged\r\ntrial and a complete adjudicatory process. Thus, the\r\njudgment falls squarely under Section 33 of the Code and\r\nwas followed by a decree. A decree passed under Section\r\n33 of the Code is appealable under Section 96 of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Code. Without challenging the decree, the petitioner has\r\nfiled Ext.P3 application with a seemingly innocuous\r\nprayer for the return of the plaint, the plaint documents,\r\nthe court fee and legal benefit fund stamps. The said\r\ncourse is untenable and impermissible in law, mainly\r\nbecause the petitioner has consciously paid the balance\r\ncourt fee, participated in the trial and has suffered a\r\ndecree.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. I don’t find any mistake or inadvertence\r\ncommitted by the court below, as alleged by the\r\npetitioner. The attempt in Ext.P3 was purely experimental\r\nin nature, which has been rightly rejected by the court\r\nbelow by Ext.P6 order. The court below has not\r\noverstepped its authority or powers, warranting\r\ninterference by this Court under Article 227 of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Constitution of India. The original petition is meritless\r\nand sans substance, and is hence dismissed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0a2de4ac571a496298885d5386145750.jpeg', '18918faa336a0858100c8832fb0ab2aa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-13', 1, '', '', '2023-02-10 15:17:13', '2023-02-13 06:13:24'),
(2660, 'RwktJ4uk6T4mqSOd7Tjvsf4Ld', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act, 1996. Even non-signatories will be bound by the arbitration agreement, if there is implied consent to be bound and a direct relationship with the signatory. Karnataka High Court.', '<h4>Anheuser Bush Inbev India Limited vs East Godavari Breweries Private Limited and others. <br>Civil Miscellaneous Petition 304 of 2019 decided 31 March 2021. </h4><h4>Justice S. Sunil Dutt Yadav </h4><h4><br></h4><h4>Post 2015 Amendment, the enquiry under Section 11(6-A) of the Arbitration and Conciliation Act is confined to the examination of existence of an Arbitration Agreement in the narrow sense. <br></h4><h4>Post 2015 amendment, all that the Court needs to see is to \"whether the arbitration agreement exists - nothing more nothing less\" and that Legislative policy and purpose is to minimize the Court\'s intervention, which intention as reflected in Section 11(6-A) of the Act is to be respected.</h4><h4>The scrutiny is extremely limited and restricted and it is only the prima facie test that needs to be applied and where</h4><h4>There are debatable and disputable facts and a good reasonable arguable case is made out for reference, the matter is to be relegated to the Arbitral Tribunal which has the primary jurisdiction to decide the disputes relating to its jurisdiction.</h4><h4>While exercising power to decline reference to the Arbitral Tribunal, it is only where it is manifestly and ex-facie certain that the arbitration agreement is non-existent and to protect parties from being forced to arbitrate where no case is made out and to cut-off the dead wood, the Court could refuse reference.</h4><h4>It is also clarified that it is not the stage for the Court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal.</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">Even non-signatories will be bound by the arbitration agreement, if there is implied consent to be so bound. Non-signatories would be bound in the event if the parties are affiliated, where non- signatory is an alter ego and have a direct relationship with the signatory to the arbitration agreement.</span></h4><h4>The non-signatories being bound by an arbitration clause in another agreement finds its source on the legal basis as enunciated by the Apex Court in Chloro Controls India Private Limited v. Severn Trent Water Purification INC. and Others (2013) 1 SCC 641.</h4><h4><span style=\"background-color: rgb(255, 255, 0);\">What would be good as regards post-award situation so as to bind a non-signatory should also be good as regards the proceedings under Section 11 relating to appointment of an Arbitrator and accordingly, the distinction sought to be made out by the respondents is one without a difference.</span></h4><div><span style=\"background-color: rgb(255, 255, 0);\"><br></span></div>', '84765bebb26d30c228e467a71594c733.jpeg', '8edc82d411c7a891d27de1c6b12470b5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-10', 1, '', '', '2023-02-10 17:28:44', '2023-02-10 17:41:31'),
(2664, 'KQ4HQ5z0SfoN5s7HeZZu9i7vR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Political background, by itself, though a relevant consideration, cannot be an absolute bar for appointment of otherwise a suitable person as Judge. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Anna Mathews and others Vs Supreme Court of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition (Civil) 148 of 2023 decided on 10 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sanjiv Khanna and Justice B.R. Gavai.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The legal issue raised in the aforementioned writ petitions\r\nrelates to the scope and ambit of judicial review in the matter of\r\nappointment of judges to the High Courts under Article 217 of the\r\nConstitution of India. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. In our opinion, this legal issue is settled and is not res integra.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n3. This Court, in Mahesh Chandra Gupta v. Union of India and\r\nOthers , has held that appointment of a judge is an executive\r\nfunction of the President of India. Article 217(1) prescribes the\r\nconstitutional requirement of consultation. Fitness of a person to be\r\nappointed as a judge of the High Court is evaluated in the\r\nconsultation process. Evaluation of the worth and merit of a person\r\nis a matter entirely different from eligibility of a candidate for\r\nelevation. While Article 217(2) prescribes the threshold limit or the\r\nentry point for a person to be qualified to be a judge of a High Court,\r\nArticle 217(1) prescribes the procedure to be followed, which <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">procedure is designed to test the fitness of a person so to be\r\nappointed; her character, her integrity, her competence, her\r\nknowledge and the like. Thus, this judgment draws on the basic\r\ndifference between eligibility and suitability. Eligibility is an objective\r\nfactor which is determined by applying the parameters or\r\nqualifications specified in Article 217(2). Therefore, when eligibility\r\nis put in question, the question would fall within the scope of judicial\r\nreview. However, the question whether a person is fit to be\r\nappointed as a judge essentially involves the aspect of suitability\r\nand stands excluded from the purview of judicial review.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. During the course of hearing before us, it was accepted that a\r\nnumber of persons, who have had political backgrounds, have been\r\nelevated as judges of the High Courts and the Supreme Court, and\r\nthis by itself, though a relevant consideration, has not been an\r\nabsolute bar to appointment of otherwise a suitable person.\r\nSimilarly, there have been cases where the persons recommended\r\nfor elevation have expressed reservations or even criticised policies\r\nor actions, but this has not been held to be a ground to treat them <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as unsuitable. It goes without saying that the conduct of the judge\r\nand her/his decisions must reflect and show independence,\r\nadherence to the democratic and constitutional values. This is\r\nnecessary as the judiciary holds the centre stage in protecting and\r\nstrengthening democracy and upholding human rights and Rule of\r\nLaw.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">10. We are clearly of the opinion that this Court, while exercising power\r\nof judicial review cannot issue a writ of certiorari quashing the\r\nrecommendation, or mandamus calling upon the Collegium of the\r\nSupreme Court to reconsider its decision, as this would be contrary\r\nto the ratio and dictum of the earlier decisions of this Court referred </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to above, which are binding on us. To do so would violate the law\r\nas declared, as it would amount to evaluating and substituting the\r\ndecision of the Collegium, with individual or personal opinion on the\r\nsuitability and merits of the person.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11. The decision of this Court in Shri Kumar Padma Prasad v. Union\r\nof India and Others , was a case relating to eligibility of a person,\r\nin whose favour the warrant for appointment as a judge of the High\r\nCourt had been issued, but who was not qualified to be appointed\r\nas a judge of the High Court. The ratio of this judgment cannot be\r\nextended to apply the power of judicial review to examine the\r\nsuitability or merit of a candidate.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12. We may also state that the person in question has been elevated\r\nas an Additional Judge of the High Court of Judicature at Madras.\r\nOn taking oath the person pledges to work as a judge to uphold the\r\nConstitution and the laws. Article 51A8 of the Constitution casts an\r\nobligation on every citizen, and more so on every judge, to promote\r\nharmony, spirit of common brotherhood among all transcending\r\nreligious, linguistic, regional or sectional diversities. Principle of\r\nsecularism and dignity of every individual – regardless of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">religion, caste or creed, is the foundation of Rule of Law and equal\r\nprotection of laws. Not only is the conduct and judgments delivered\r\nconsidered at the time of confirmation, a judge is judged everyday\r\nby the lawyers, litigants and the public, as the courts are open and\r\nthe judges speak by giving reasons in writing for their decisions.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>13. For the aforesaid reasons, we do not find any merit in the present\r\nwrit petitions and, thus, we are not inclined to entertain and issue\r\nnotice.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n14. The writ petitions are dismissed at the admission stage.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '09867d82485f2227a69b0e6edf34ac89.jpeg', '8176dc5e342e1d51f9d7cfa8e5bdd4c6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-14', 1, '', '', '2023-02-13 13:19:17', '2023-02-14 14:33:59'),
(2663, 'Zr3dnpFd2lwm8d0XTm0P94ccv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for partition. Plea of exclusive possession by the purchaser of coparcenery property is NOT a conclusive factor to determine court fee payable by the plaintiff. Karnataka High Court. ', '<p><b>Anjanappa vs Krishnappa and others.&nbsp;<br>Writ Petition 57930 of 2015 decided on 24 August 2021.<br>Justice N.S. Sanjay Gowda.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"></span></b></p><p><b>1.The plaintiff is the writ petitioner, who is challenging an order of the trial Court, by which, he has been directed to file&nbsp; a fresh valuation slip and pay proper Court fee as per Section 35(1) of the Karnataka Court - Fees and Suits Valuation Act, 1958.&nbsp;</b></p><p><b>10. Thus, at the very inception of the suit, it is for the plaintiff to state the subject matter of the suit and its valuation and also the Court fee determined on the said basis. At this stage, obviously, the defendant has no role to play.</b></p><p><b>13....Section 11(2) of the 1958 Act confers a right on the defendant to plead that suit is not properly valued or that the fee paid is not sufficient. If such a plea is raised by the defendant, it would be necessary for all such questions arising out of such pleas to be decided before evidence is recorded affecting the defendant on the merits of the claim.</b></p><p><b>17. Sub Section (4) of Section 11 of the 1958 Act states that if the case comes up in appeal, it would be open for the Court to either suo moto or on application by any of the parties to consider the correctness of the order passed by the Court of the first instance which affected the Court fee payable and determine the proper fee payable.</b></p><p><b>19. The first stage is before the plaint is ordered to be registered. At that stage, the Court is required to decide the valuation and proper fee payable, only on the basis of the allegations made in the plaint and the details in the statement of the plaintiff.</b></p><p><b>20. The second stage is when the defendant raises a plea regarding the valuation or proper fee payable. If such a plea is raised by the defendant, the Court is required to determine all such questions before recording of the evidence which affects the defendant.</b></p><p><b>21. The third stage is when the case comes up in an appeal. The Appellate Court is empowered either on its motion or at the instance of any party to decide on the correctness of the decision made by the Court of the first instance regarding the determination of the fee payable and if comes to the conclusion that the order was incorrect, proceed to determine the fee payable and either require the plaintiff to pay the proper fee or also refund the excess fee paid.</b></p><p><b>33.Thus, in a suit for partition, only if the plaintiff states in plaint that his title has been denied or that he has been excluded from possession, he is required to pay fee computed on the market value of the property.</b></p><p><b>34. It is not the case of the plaintiff in his plaint that his title had been denied or that he had been excluded from possession of the property. It is no doubt true that the purchasers contend that they were in exclusive possession and by virtue of their exclusive possession, the plaintiff has been excluded from possession. This plea of the defendants, however, cannot be determinative of the matter of possession and the Court fee payable</b></p><p><b>35. It is to be noticed that the defendants being the purchasers have basically stepped into the shoes of the alleged coparceners of the plaintiff. If the plaintiff was in joint possession along with the vendors of the defendants, the defendants who had purchased the property would become successors in interest and that cannot tantamount to excluding the plaintiff from possession of the property.</b></p><p><b>36. In my view, the question as to whether plaintiff was excluded from possession would have to be adjudicated during the trial and cannot be decided while deciding whether appropriate Court fee had been paid under Section 11 of the 1958 Act, which is essentially based on the plaint averments and the plea raised by the defendants.</b></p>', '1a177c668944f75edc2265fcd47aefe7.JPG', 'ec61ebf8ee012e5a9b499dd890b8a0c7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-13', 1, '', '', '2023-02-13 13:04:40', '2023-02-13 13:04:40'),
(2665, '6AWwXoV26eRdHh730kb45V87Q', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Government cannot act as a robber of citizens lands; taking away private lands for the purported public purpose without compensation against the spirit of constitutional guarantee enacted u/a 300A. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.V. Guruprasad and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 61426 of 2016 decided on 10 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. Petitioners being the owners of lands in\r\nquestion are knocking at the doors of Writ Court grieving </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">against their acquisition vide Preliminary Notification dated\r\n09.01.2007 issued under Section 28(1) followed by the\r\nFinal Notification dated 17.05.2007 issued under Section\r\n28(4) of the Karnataka Industrial Areas Development Act,\r\n1966.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. After service of notice, the State has entered\r\nappearance through the learned AGA and the KIADB is\r\nrepresented by its Sr. Panel Counsel who has filed the\r\nStatement of Objections opposing the acquisition. Learned\r\nPanel Counsel contends that the acquisition having been\r\ncompleted by issuance of Final Notification on 17.05.2007,\r\nthe lands have vested in the State and therefore, the\r\nsame cannot be restored to the Petitioners. After the land\r\nowners notified the change of khatha pursuant to subject\r\nSale Deeds, the Government has issued Corrigendum\r\nNotification on 05.06.2014 mentioning their names and\r\nbecause of the protocol process, there is some delay and\r\nnow the payment of compensation will be made. So\r\ncontending, they seek dismissal of Writ Petition.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. Having heard the learned counsel for the parties\r\nand having perused the Petition papers, although this\r\nCourt rejects challenge to acquisition of lands, it is\r\ninclined to grant indulgence in so far as non payment of\r\ncompensation, following being the reasons:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>a) The 1st Petitioner bought 05 Acres & 01 Gunta of\r\nland in Sy.No.132 of Jonnahalli in Devanahalli Taluka by\r\nthree registered Sale Deeds all dated 27.01.2007 and his\r\nname is mutated in the Revenue Records vide M.R.\r\nNos.48, 49 & 50 of 2006-07 dated 22.03.2007. The 2nd\r\nPetitioner bought only 38 Guntas of land in Sy.No.66/6 of\r\nthe same village vide two Sale Deeds both dated\r\n23.12.2006 and his name came to be mutated in the\r\nRevenue Records vide M.R.No.43/2006-07 dated\r\n14.04.2007 & M.R.No.60/2006-07 dated 21.04.2007.\r\nThus, as on the date of Preliminary Notification i.e.,\r\n09.01.2007, names of the Petitioners had not figured as\r\nkhatedars in the Revenue Records and therefore, the\r\nKIADB was justified in notifying the acquisition in the\r\nnames of their vendors then, who were the Khatedars.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(d) Petitioners property has vested in the State vide\r\nFinal Notification dated 17.05.2007.The Government\r\nissued the Corrigendum notification dated 05.06.2014.\r\nThey have filed the Writ Petition on 28.11.2016 and a\r\nCoordinate Bench directed issuance of notice on\r\n16.01.2017. At least, after service of notice, the\r\nRespondent – KIADB ought to have woken up and\r\narranged for payment of the payment of compensation.\r\nHowever, strangely it has filed its Statement of Objections\r\ndated 09.04.2021 seeking dismissal of the Writ Petition\r\ncontending that they have already developed the land and\r\nallotted the same to several entrepreneurs, the Allotment\r\nLetters dated 09.05.2019, 18.05.2019 & 10.06.2019 have\r\nalso been produced. Except saying that there are rival\r\nclaimants for compensation, there is absolutely no\r\njustification whatsoever for withholding the payment even <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">when the Corrigendum Notification dated 05.06.2014 itself\r\nmentioned the names of Petitioners and not the Objectors.\r\nThe lands of the Petitioners have been allotted to the\r\nentrepreneurs at a price of Rs.2.5 Crore per acre, that too\r\nafter giving a rebate of 50% of the Market Value. This\r\nCourt is bewildered as to how the compensation lawfully\r\npayable has been withheld when it was obviously due for\r\npayment to the Petitioners.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(e) The government cannot act as a robber of citizens\r\nlands; taking away private lands for the purported public\r\npurpose sans compensation militates against the spirit of\r\nconstitutional guarantee enacted u/a 300A, the\r\nfundamental right to property no longer being on the\r\nstatute book, notwithstanding. It hardly needs to be\r\nstated that the State and its instrumentalities are\r\nconstitutionally expected to conduct themselves with\r\nfairness & reasonableness in all their actions vide\r\nRAMANA DAYARAM SHETTY vs. INTERNATIONAL\r\nAIRPORT AUTHOITY AIR 1979 SC 1628. The conduct of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Respondent - KIADB and its officials who answer the\r\ndescription of ‘State’ under Article 12 of the Constitution\r\nfalls militantly short of the fairness standards expected of\r\nthem.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(f) Lands of the Petitioners have been taken by\r\nacquisition process way back in the year 2007, is not in\r\ndispute; with Herculean task, the Petitioners got their\r\nnames entered by virtue of Corrigendum Notification\r\ndated 5.6.2014. Preceding this & post this, several\r\nrepresentations were given for payment of compensation.\r\nThe sites formed in Petitioners lands on allotment have\r\nfetched Rs.7.5 Crore to the KIADB, that too, with the\r\nrebate of 50% of the market value; otherwise, it would\r\nbeen Rs.15 Crore, as already mentioned above. If there\r\nwas a rival claim, compensation amount could have been\r\nparked in some interest earning deposits, relegating the\r\nparties to litigate. In the entire Statement of Objections,\r\nneither the State nor the KIADB has said anything about\r\nthe compensation being payable to the Petitioners. The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">KIADB and its officials being what they are, this did not\r\nhappen; such a conduct reinforces the shackles of a\r\nfeudalistic attitude from which the transformative\r\ncharacter of our constitution seeks to liberate. Their action\r\nin not paying the compensation is not only grossly\r\nviolative of property rights constitutionally guaranteed\r\nunder Article 300A but gnaws at overarching objectives of\r\na Welfare State ordained under the Constitution.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(h) There is force in the submission of learned counsel\r\nfor the Petitioners that the compensation should be fixed\r\non the principles broadly enacted in 2013 Act, because of\r\nthe enormity of delay & callousness of the Respondents in\r\nunjustifiably withholding the payment of compensation for\r\nabout a decade & a half despite receiving about Rs.7.5\r\nCrore from the allottees of the sites with a rebate of 50%\r\nMarket Value; otherwise, arithmetically speaking, it would\r\nhave been Rs.15 Crore. He banks upon a Coordinate\r\nBench decision in W.P.Nos. 108802/2016 c/w\r\n107748/2014, 100762/2017 between SHEENAPPA vs.\r\nSTATE OF KARNATAKA disposed off on 18.07.2022\r\ndirecting payment of compensation under the 2013 Act.\r\nHowever, it is told at the Bar that this decision has been\r\nstayed by a Division Bench in W.A. No.100393/2022. Be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that as it may. Justice of the case warrants that the\r\nPetitioners be paid at least 50% of the compensation to be\r\ncomputed under the provisions of 2013 Act, along with\r\nsolatium, interest & such other things. This Court hastens\r\nto add that, in special circumstances of the case and\r\nbecause of the stay of Coordinate Bench decision, the\r\nprovisions of the 2013 Act are taken only for the purpose\r\nof determining/re-fixing the compensation amount on a\r\nnormative basis till after & subject to decision in the Writ\r\nAppeal. It hardly needs to be stated that the Writ Courts\r\nbeing the custodians of Constitutional Rights of the\r\ncitizens, have to individualize justice taking into account\r\nthe facts & circumstances of the case at hands.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the above circumstances, this Court makes the\r\nfollowing directions:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) This Writ Petition succeeds in part.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Although\r\nchallenge to the acquisition of the subject\r\nlands is negatived, a Writ of Mandamus\r\nissues to the Respondent Nos. 2 to 4 to\r\ndetermine/re-fix the compensation at the\r\nrate of 50% to be computed under the\r\nprovisions of Section 77 of the Right to Fair\r\nCompensation and Transparency in Land  <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Acquisition, Rehabilitation and Resettlement\r\nAct, 2013 along with solatium, interest &\r\nsuch other benefits.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd22675b4fc8c4b1e53a2da2f73229d27.JPG', 'fe6c453f24e7ab632f0c6ee2a7f50e62.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-14', 1, '', '', '2023-02-13 14:07:27', '2023-02-14 03:12:21');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2666, 'EXIWlWqAAKJokwlE9Bhr5lBqg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Stay of execution pending suit between decree holder and judgement debtor. Order 21 Rule 29 CPC will not apply to suits which are instituted subsequent to institution of the execution proceedings. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sikandar Mohammad Ali Dal Al and others Vs Babu Hanumanth Mindolkar Thr Lrs and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 103071 of 2017 decided on 18 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.R. Krishna Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The brief facts giving rise to the present writ petition are\r\nas follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n The petitioners herein instituted a suit in O.S. No. 3/1971\r\nagainst the respondent herein for possession, mesne profits\r\nand other reliefs before the Civil Judge, karwar. The said suit\r\nwas subsequently transferred to the Court of Civil Judge,\r\nHaliyal (trial Court) and re-numbered as O.S. No. 79/2003. By\r\njudgment and decree dated 07.09.2006, the trial Court decreed\r\nthe suit in favour of the petitioners against the respondents,\r\nthereby directing the respondents to hand over possession of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the suit ‘A’ schedule property to the petitioners within a period\r\nof three months and granted mesne profits in their favour.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Aggrieved by the said judgment and decree passed by the\r\ntrial Court, the respondent herein preferred an appeal in R.A.\r\nNo. 8/2006 on the file of the Civil Judge, Yallapur. The said\r\nappeal was allowed by the first appellate Court vide judgment\r\nand decree dated 13.12.2007, as a result of which the suit filed\r\nby the petitioners came to be dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. A plain reading of the said provision will clearly indicate\r\nthat in order to enable the executing Court to stay execution\r\nproceedings pending a suit between a decreeholder and the\r\njudgment debtor, it is essential that both the execution\r\nproceedings and the suit are pending before the very same <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court and not before two different Courts. In other words, if\r\nthe execution proceedings are pending in one Court and the\r\nsuit between the decreeholder and judgment debtor is pending\r\nbefore another Court, which is not of co-ordinate jurisdiction,\r\nthe provisions contained in Order 21 Rule 29 CPC would not be\r\napplicable and the same cannot be invoked for the purpose of\r\nseeking stay of the execution proceedings.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. As is clear from the aforesaid judgment of this Court, in\r\norder to attract and invoke Order 21 Rule 29 r/w Sec. 151 CPC\r\nto seek stay of further proceedings in execution proceedings, it <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is absolutely essential that the decree must have been passed\r\nby the same Court in which the execution case is pending and\r\nthe suit filed subsequent to the decree must also be pending\r\ninn the same Court between the parties. It is also held that the\r\nexpression “such Court” does not cover a case in which\r\nproceedings are pending in two different Courts, such as Court\r\nof Civil Judge or District Court or any other Courts.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. In the instant case, it is an undisputed fact that execution\r\nproceedings are pending before the Civil Judge, Haliyal whereas\r\nthe suit filed by the respondent-judgment debtor in O.S. No.\r\n22/2016 is pending on the file of the Sr. Civil Judge, Haliyal\r\nsitting at Yallapur, which are two completely different Courts\r\nand not the same Court for the purpose of Order 21 Rule 29\r\nCPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. A perusal of the impugned order will indicate that despite\r\nreferring to the said judgment, the executing Court has\r\ncompletely misdirected itself in not applying the principles laid\r\ndown in the said judgment and this has resulted in erroneous\r\nconclusion.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. A perusal of the aforesaid judgment in Chintamani\r\nsupra, will also indicate that this Court has also adverted to\r\nSec. 151 CPC in order to hold that inherent power of the Courts\r\nto stay proceedings in one more case cannot be exercised to\r\ndefeat a decree or eviction order in violation of the Act. Under\r\nthese circumstances also, Sec. 151 CPC is also not available to\r\nthe respondent-judgment debtor to seek stay of further\r\nproceedings in E.P. No. 18/2012 pending disposal of O.S. No.\r\n22/2016. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">13. The issue regarding applicability of Order 21 Rule 29 CPC\r\ncan be examined from yet another angle. It is an undisputed\r\nfact that the instant execution proceedings were instituted by\r\nthe petitioners/ decreeholders against the respondent/\r\njudgment debtor in the year 2012 while the suit in O.S. No.\r\n22/2016 was instituted by the respondent/ judgment debtor\r\nsubsequently , i.e., in the year 2016. It is relevant to state\r\nthat Order 21 Rule 29 CPC to be applicable, it is also essential\r\nthat the suit ought to be pending as on the date of institution of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the execution proceedings and Order 21 Rule 29 CPC will not\r\napply to suits which are instituted subsequent to institution of\r\nthe execution proceedings. To put it differently, the power of\r\nthe executing Court to stay its own proceedings can be invoked\r\nonly in cases where a suit has already been instituted by the\r\njudgment debtor prior to institution of the execution\r\nproceedings and the same will not apply to suits which are\r\ninstituted subsequent to institution of the execution\r\nproceedings. Any another interpretation or construction placed\r\non Order 21 Rule 29 CPC will lead to disastrous consequence\r\nsince every judgment debtor would be in a position to scuttle,\r\nstall and obstruct the execution proceedings by filing a suit\r\nafter institution of the execution proceedings seeking to enforce\r\nthe decrees which have attained finality and become conclusive\r\nand binding upon judgment debtor. Viewed from this angle\r\nalso, in the undisputed facts of the instant case which disclose\r\nthat the execution proceedings were instituted prior to\r\ninstitution of the suit in O.S. No. 22/2016 filed by the\r\nrespondent/ judgment debtor, Order 21 Rule 29 CPC would be\r\ninapplicable to the facts of the instant case and on this score\r\nalso, the application I.A. No. 12 was liable to be dismissed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. It is well settled that invoking the provision contained in\r\nOrder 21 Rule 29 CPC is discretionary and should be exercised\r\njudiciously and not mechanically as a matter of course. It is\r\nequally well settled that mere satisfaction of the pre-conditions\r\nstipulated in Order 21 Rule 29 CPC is not sufficient for\r\nexecution proceedings to be stayed and the power under this\r\nRule has to be exercised only in exceptional cases where the\r\ninterest of justice requires it and the fundamental consideration\r\nshould be that the decreeholder should not be deprived of the\r\nfruits of the decree, except for compelling reasons and unless\r\nan extraordinary case is made out, no stay should be granted\r\nand the decree should be allowed to be continued.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16.... <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Coming back to the facts of the instant case, indisputably, the\r\npetitioners commenced the litigation in 1971 and have not been\r\nable to realize the fruits of the decree passed in their favour\r\ndespite more than 50 years and the respondent/ judgment\r\ndebtor has been successfully thwarting, scuttling and\r\nobstructing the petitioner from realizing the fruits of the decree\r\non one pretext or the other and by filing repeated applications\r\nand has even gone to the extent of filing a separate suit in the\r\nyear 2016.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. Under these circumstances, having regard to the facts of\r\nthe case on hand, I am of the considered opinion that this is\r\nnot a fit case which would enable the executing Court to\r\nexercise its discretion to stay execution proceedings and on this\r\nground also, the impugned order passed by the executing Court\r\ndeserves to be set aside.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. Insofar as the reliance placed by the executing Court on\r\nthe judgment of this Court in the case of U.Sadanand Udupa\r\nVs. Smt. T. Kusuma Shedthi (2011) 5 KCCR 4017 is\r\nconcerned, the said judgment is clearly distinguishable on facts\r\nand the same cannot be applied to the factual situation\r\nobtaining in the instant case. Consequently, the finding\r\nrecorded by the executing Court relying upon the said\r\njudgment is clearly erroneous and unsound.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n20. In view of the aforesaid facts and circumstances, I am of\r\nthe considered opinion that the executing Court clearly fell in\r\nerror in allowing I.A. No. 12 by passing the impugned order\r\nwhich deserves to be set aside. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\ni) Writ Petition is hereby allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2b3d79cefd59b3f14a1931b8e30e180c.JPG', 'ca590ae085e755ff4ebd59b9d38ce624.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-14', 1, '', '', '2023-02-13 14:19:31', '2023-02-14 12:04:31'),
(2675, 'HWYOXgLIHRx3rtNM3PWY6rgRH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Architects Act, 1972. Karnataka High Court directs Union of India to notify criteria for nomination of Members of the Council qua the qualification and experience which would become binding on every State Government. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sharan Desai Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 16114 of 2021 decided on 8 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">The petitioner, in person, is knocking at the doors of this\r\nCourt seeking a direction to invite him for an interview for the\r\nprocess of nomination/selection as Member of Council of\r\nArchitecture of India (‘the Council’ for short) and during the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">pendency of the petition, calls in question the nomination/ selection\r\nof the 2nd respondent as Member of the Council.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. Brief facts, that leads the petitioner to this Court, in the\r\nsubject petition, as borne out from the pleadings are as follows:-\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b style=\"font-size: 12pt;\">The petitioner is an Architect registered with the Council. The\r\npetitioner having completed bachelor degree in Architecture from\r\nan Institution in the City of Bangalore, travels to United States of\r\nAmerica (‘USA’) for post graduation and is now Master of\r\nArchitecture, Areas of Specialization in Architecture from the\r\nUniversity of Oklahoma, USA. The Council has several Members in\r\nit, nominated/selected by the representatives of the State\r\nGovernments who form the Council. The term of one Sri B.V.Satish\r\nended on 26-08-2021, who was the representative in the Council\r\nfrom the State of Karnataka. Owing to ending of his term, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner files an application submitting his resume appended to it\r\non 04-01-2021, seeking nomination as a Member of the Council\r\nrepresenting the Government of Karnataka, in terms of the\r\nArchitects Act, 1972 (hereinafter referred to as ‘the Act’ for short).\r\nOn 23-06-2021, when the petitioner did not receive any reply on\r\nthe application submitted, he sent a follow up letter/reminder to the\r\napplication dated 04-01-2021, requesting his nomination. Again on\r\n13.08.2021, one more reminder was sent. None of them yielded\r\nany result as no communication/reply was received by the\r\npetitioner for eight months, as to what became of his application\r\nseeking his nomination as Member of the Council. It is at that\r\njuncture, the petitioner has knocked the doors of this Court in the\r\nsubject petition.</span></b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. The afore-narrated facts are not in dispute. The\r\nqualification of the petitioner is a matter of record and does not call\r\nfor reiteration. What requires consideration is, the method of\r\nselection/nomination to the Council from the respective States who\r\nform Members of the Council. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">To consider the said issue, it is\r\ngermane to notice the Act. The Act was promulgated on 31st May,\r\n1972. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Since the construction activity in the country had expanded to a\r\nlarge extend, in the year 1972 itself, qualified Architects were to be\r\nregulated by way of the Act and the Rules framed under the Act.\r\nLikewise, the Council of Architecture Rules, 1973 (hereinafter\r\nreferred to as ‘the Rules’ for short) was also promulgated on\r\n20-02-1973.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. The Regulations are also necessary to be noticed.\r\nRegulation 2 which deals with definitions, defines who is a\r\n‘Member’. A ‘Member’ is the ‘Member’ of the Council as defined\r\nunder clause (e). There are various functions enumerated in the\r\nRegulations for the Members of the Council. Regulation 8 deals\r\nwith business agenda for meetings of the Council. Regulation 12\r\ndeals with matters which may be discussed at the time of\r\ndiscussion of a motion. Regulation 22 deals with constitution and\r\nconduct of business of the committees of the Council. Regulation 26\r\ndeals with Finances and Accounts. Regulation 29 deals with\r\ninspection of educational institutions and their examinations by the\r\nInspectors appointed under the Regulations. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">What would unmistakably emerge from the Regulations is, the\r\nCouncil has manifold functions so regulated by the afore-quoted\r\nRegulations and for such manifold functions, the meetings of the\r\nCouncil become imperative. The Members of the Council have a\r\nmajor role to play in the business agenda of the meetings of the\r\nCouncil. The Members have a say in the finance and accounts as\r\ndealt in Regulation 26 and have the power of inspection of\r\neducational institutions. Though these are Committees constituted\r\nunder the Regulations, the Committees are constituted from out of\r\nthe Members of the Council. Therefore, the Member of the Council </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is an integral part of any function of the Council and not merely a\r\nceremonial person to be a rubber stamp of what the office bearers\r\nwould decide. This is the broad frame work of the Act, Rules and\r\nthe Regulations, all of which would depict manifold functions of\r\nMembers, who could become the office bearers for performance of\r\nmanifold activities to achieve the purposes under the Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. The seat of a Member is neither ceremonial nor the\r\nperson, who occupies the said seat becomes a ceremonial or a\r\nMember only to lay his rubber stamp on the decisions that are\r\ntaken. Every Member has an important role to play and every\r\nMember attending the meetings whenever called for at the seat,\r\nwhich is in the capital is paid from the funds of the Council. The\r\nfunds of the Council in terms of Regulation 26 come from the\r\nGovernment of India inter alia. Therefore, a part of public money is\r\ngranted to the Council, by the Government of India as grants.\r\nTherefore, a Member for such Council of Architect has to be\r\nnominated qua certain criteria. The Act, the Rules or the\r\nRegulations contain certain criteria for appointment to the post of\r\nPresident, Vice-President, Executive Members and Members of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Committee but they are all from among the Members of the\r\nCouncil.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. For nomination or selection of a Member, there is no\r\ncriteria indicated. In that light, the very nomination would become\r\na tool to pick and choose at the hands of each State Government\r\nwith qualification or no qualification; experience or no experience.\r\nAccordingly, the petition is brought before this Court contending\r\nthat the petitioner is a highly qualified Architect and had submitted\r\nhis application or expression of interest to become a Member of the\r\nCouncil. Though there is no response to the application so\r\nsubmitted by the petitioner, the objections by the State clearly\r\nindicate that it is the pleasure of the Government to nominate any\r\nperson. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">According to the State, it is a discretionary power vested with the\r\nGovernment to nominate a representative Member to the Council\r\nunder Section 3(3)(f) of the Act. Since the Council performs such\r\nmanifold functions, which touch upon the interest of public in one\r\nmanner or the other, the Members being nominated to the said\r\nCouncil without any criteria or even without assessment of the\r\nqualification of those nominees qua other candidates would become\r\nan unguided and uncanalised power of the State. Though the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">criteria is not laid down under the Act, to make the action of the\r\nState become free of any arbitrariness or a pick and choose, it is in\r\nthe least necessary to notify the vacancy and call for applications\r\nfrom eligible candidates, who would be qualified to be\r\nnominated/selected in terms of the Act. Since the Rules are silent\r\nwith regard to such nomination, State Government should now\r\nexplore the possibility of issuance of Government Order prescribing\r\nthe criteria for selection/nomination to be a Member of the Council\r\nand throw it open to the public to submit their applications for\r\nselection to be done, at least on the scrutiny of applications. If no\r\nqualified citizens comes to know about the vacancy or the\r\nnomination that can be done under the Act, and the nomination\r\nhappens in the four corners of the powers that be, such action\r\nwould become arbitrary. Though the petitioner would not get the\r\nrelief that his nomination to be considered, since time has passed\r\nby, he is entitled to, only a direction for consideration of his case in\r\nfuture when the nomination of the 2nd respondent comes to an end.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> (i) Writ Petition is disposed of. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b3a9905a3682d1395e67e7f30bb59feb.jpeg', 'b2ff4ad26dcb128689f5162aa3e95a9e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-15', 1, '', '', '2023-02-14 15:11:40', '2023-02-15 12:51:07');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2674, 'QP4am5xtoSi3RpRv5N7iVqL1a', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Areas covered by the Open Space Regulation cannot be diverted for any other purpose and  shall not be utilised as dumping yards. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Association of Vasanth Apartments Owners Vs V. Gopinath and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1890-91 of 2010 decided on 13 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.M. Joseph and Justice Pamidighantam Sri Narasimha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Civil Appeal Nos. 1890-91 of 2010 is directed\r\nagainst the judgment dated 19.10.2007 rendered by a\r\ndivision bench of the High Court. Writ Appeal No. 478\r\nof 2007 and Writ Appeal No. 1026 of 2007 were appeals\r\ngenerated by the judgment which was rendered by the\r\nlearned Single Judge, in Writ Petition No. 4766 of 2007\r\ndated 20.02.2007. By the same the learned Single Judge\r\nallowed the writ petition filed by the writ petitioners <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">who are the appellants before us. It was interalia\r\ntheir case that they were owners of certain apartments\r\nsituated in a complex which consisted of 12 blocks. The\r\ntotal area of the layout was more than 10,000 sq.\r\nmetres. A portion of the land was earmarked in terms\r\nof Rule 19 of the Development Control Rules\r\n(hereinafter referred to as ‘DCR’) as Open Space\r\nRegulation area (hereinafter referred to as ‘OSR’). A\r\ngift deed was executed in favour of the Chennai\r\nMetropolitan Development Authority on 18.02.1994.\r\nHowever, despite the lapse of 12 years of the gift, the\r\nOSR area had not been developed into a park. The learned\r\nSingle Judge disposed of the writ petition by directing\r\nthe appellant association to maintain the open space\r\narea as a park with recreational facilities in\r\naccordance with the ‘DCR’. It was also made clear that\r\nit is always open to the respondents to take action in\r\naccordance with law if there is any violation. It was\r\nfound to be the duty of the respondents to maintain\r\nsuch open areas as parks and on there being a failure\r\non their part, the association of the residents should\r\nbe welcomed to do the same subject to the rules. Writ </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Appeal no. 478 of 2007 was filed by one Shri Gopinath\r\nand others. They were persons who were living in the\r\nneighbourhood. Writ Appeal no. 1026 of 2007 was filed\r\nby the Commissioner of the Corporation of Chennai and\r\nthe Member Secretary of the Chennai Metropolitan\r\nDevelopment Authority (hereinafter referred to as the\r\n‘CMDA’). It was by the judgment impugned in Civil\r\nAppeal Nos. 1890-91 of 2010, the division bench allowed\r\nthe Writ Appeals and set aside the judgment of the\r\nlearned Single Judge.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">27. We have noticed the facts in the case of Vasanth\r\nApartments and in the case of Keyaram Hotels. In the\r\ncase of Vasanth Apartments, the land which was gifted\r\nby the owner in compliance with the impugned rule has\r\nbeen sought to be made use as a road. In the case of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Keyaram Hotels the pertinent point which must be\r\nnoticed is that the OSR area is not sought to be so\r\nmaintained as road but access to the public by having\r\nan entrance to the area through a public road is sought\r\nto be projected as being contrary to the very concept\r\nof OSR meant for communal purpose, if the word\r\n‘communal’ is to be understood as being confined to\r\nbenefit the interest of the community which in the\r\ncontext of the case is the community of persons who\r\npatronise the hotel and who used the facilities\r\nprovided in the hotel and its premises.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. Whether impugned rule is statutory or it has\r\nstatutory underpinning? Whether it is law?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The argument of the appellants appears to be, that the\r\nimpugned rule is not a statutory rule. Instead, the\r\nfurther case is that the impugned rule is not a rule\r\nmade under Section 122 of the Act. Section 123\r\ncontemplates placing of rules made under Section 122\r\nbefore the legislative assembly. The said procedure has\r\nnot been followed as regards the impugned rule.\r\nTherefore, it is not open to the respondents to claim\r\nthat the impugned rule is a statutory rule. It is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">nothing but an executive fiat. If it is merely executive\r\nin nature, then it is not open to the respondents to\r\ndirect the owners to execute a gift deed of valuable\r\nproperty, and thus, deprive the owners of the rights\r\nover their property.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n29. The argument, on the other hand, of the respondents\r\nis that the DCR of which the impugned rule, is a part\r\nof the Master Plan and there is statutory authority in\r\nregard to the making of a Master Plan located in Section\r\n17 of the Act. In other words, the argument of the\r\nrespondents is that the court, when it approaches the\r\nissue raised in this case, cannot have a pedantic view\r\nand understand a Master Plan as one which is limited or\r\nconfined to mere drawings. The Master Plan as\r\ncontemplated in the Act in regard to a Metropolitan\r\nAuthority like the CMDA must be viewed on a larger\r\ncanvass. The plan was put in place for catering to the\r\nneeds of an ever-growing Metropolis. Various\r\nrestrictions necessarily have to be put in place to\r\nprovide for an orderly development of such a sprawling\r\nurban area. The larger public interest of the entirety\r\nof the residents of such an area had to be envisaged </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and it is in this regard that the concept of OSR must\r\nbe viewed. The Master Plan goes to meticulous details\r\nabout what is permitted and what is not.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>49. In the review petition (filed as review application\r\nno. 69 of 2008) also there is no contention seeking to\r\nventilate the complaint that the impugned rule falls\r\nfoul of Article 14 on the basis that it is\r\ndiscriminatory.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>50. We are concerned in this case with the provision\r\nwhich provides for town planning. In regard to such\r\nlaw, a certain measure of free play is to be given to\r\nthe planning authority bearing in mind that it is urban\r\nplanning what is involved. In regard to the grant of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">development permit up to 3000 sq. mtr., the rules do\r\nnot contemplate any requirement in the matter of OSR.\r\nIt is a matter which goes to the wisdom and clearly\r\nfalls within the realm of policy. In other words, having\r\nregard to the size of the development contemplated, the\r\nauthority has not found it fit to provide for\r\nreservation under the head open space. It cannot be\r\ndescribed as being bereft of any rationale that upon\r\nthe minimum threshold of 3,000 sq. mtr. being breached\r\nand the layout being between 3,000 sq. mtr. and 10,000\r\nsq. mtr., 10% of the area excluding roads is to be\r\nmaintained as open space. In other words, 10% of area\r\nwould have to be reserved for communal and recreational\r\nfacilities. It is no doubt true that that in cases\r\nfalling in the said category namely group developments\r\nwhich comprise of an area in excess of 3,000 sq. mtr.\r\nand up to 10,000 sq. mtr., it is open to the project\r\nproponent to pay the market value equal to the land on\r\nthe basis of valuation as provided therein. However, it\r\nis only if on account of the physical constraints it is\r\nnot possible to provide open space, that payment is\r\ncontemplated. Another noteworthy feature is that in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cases where the land is between 3,000 sq. mtr. and\r\n10,000 sq. mtr. public access for the area as earmarked\r\nshall not be insisted upon. It is when it comes to a\r\ncase where if the area goes above 10,000 sq. mtrs.,\r\nthat it becomes obligatory to reserve 10% of the area\r\nexcluding road and the OSR reserved is to be transferred\r\nby way of gift deed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>51. We are unable to persuade ourselves to hold that\r\nthe impugned rule violates Article 14 on the score that\r\nit is discriminatory. In a challenge to a provision\r\nbased on discrimination under Article 14, the burden is\r\non the applicant to lay clear foundation in pleadings\r\nand further to discharge the burden by making good the\r\ncase and the court will not lightly enter a finding of\r\ndiscrimination. Town planning being a complex subject\r\ninvolving various inputs and value judgements which are\r\nintended to ensure the orderly, visionary and planned\r\ndevelopment, they require greater deference from\r\ncourts.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>56. The appellants/petitioner would argue that\r\nSections 36 and 37 contemplate acquisition of the lands\r\nwhich are reserved. This means that there cannot be a\r\ngift deed, as contemplated in the impugned\r\nRules/Regulations.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>57. We are afraid that though at first blush, the\r\nargument may appear to be attractive, it cannot pass\r\nmuster on a deeper scrutiny. What Section 36 provides\r\nis, for power to acquire land, under the Land\r\nAcquisition Act. It goes on to provide that any land\r\nrequired, reserved or designated in a regional plan,\r\nmaster plan, detailed development plan, is deemed to\r\nbe land needed for a public purpose under the Land\r\nAcquisition Act. What is more, such land can be\r\nacquired under the said law, as modified in the Act.\r\nIt is thereafter that Section 37 contemplates that upon\r\npublication of the notice in a Government Gazette of\r\nthe preparation of the plan that any land is required,\r\nreserved or designated in such plan, the appropriate\r\nPlanning Authority, which includes, no doubt, the CMDA,\r\ncan do two things: (1) It may enter into an agreement\r\nfor the acquisition by purchase of any land. It is\r\napparently land, which is covered by Section 36, which\r\nmeans land which is required, reserved or designated\r\nin a master plan, inter alia. (2) The Planning\r\nAuthority may apply to the Government for acquiring\r\nsuch land under the Land Acquisition Act. Section 37(2) <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">goes on to provide that if an application is received\r\nand if the Government is satisfied that the land is\r\nneeded for the public purpose, the Government may make\r\na declaration in the manner provided in Section 6 of\r\nthe Land Acquisition Act 1894. It will be noticed that\r\nwhat is contemplated under Sections 36 and 37 is that\r\nit is in regard to any land, which is required, reserved\r\nor designated in a plan that the question of acquiring\r\nsuch a land arises. In other words, if the property is\r\nneeded under the plan and it is shown as required,\r\nreserved or designated, as such, in the plan, then, it\r\nis open to the Authority acting in coordination with\r\nthe Government to acquire such land so that the lofty\r\ngoal of planned and orderly development, contemplated\r\nin the plan, is achieved. In this connection, it is\r\nrelevant to notice that Section 37 kicks in immediately\r\nupon the publication of a notice for the preparation\r\nof the plan. The notice is published under Section 26\r\nor Section 27. Such notice is published after the\r\nconsent of the Government is received under Section 25.\r\nIt is next relevant to notice Section 38. Section 38\r\nallows the period of three years from the date of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">publication of the notice under Section 26 or Section\r\n27 for the Government to publish the declaration\r\ncontemplated under Section 37, which, no doubt, amounts\r\nto a declaration under Section 6 of the Land\r\nAcquisition Act. Section 38 provides that if the\r\ndeclaration is not made under Section 37 of the Act,\r\nthe land shall be deemed to be released from such\r\nreservation, allotment or designation. The time limit\r\nof three years, not being observed for acquiring the\r\nland by way of purchase, also has the same result,\r\nviz., the land, which in the plan, is shown as reserved,\r\nallotted or designated, shall be freed from such\r\nreservation, allotment or designation.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>58. We are, in these cases, dealing with the\r\nreservation of land by a person, who applies for\r\ndevelopment of the land and, more specifically, for the\r\npurpose of group development. The person, who applies,\r\nbecomes obliged under Rule 19(b) to reserve 10 per cent\r\nof his land excluding roads, for communal and\r\nrecreational purposes. This is a reservation to be made\r\nby a person applying for planning permission on the\r\nbasis of the extent of the layout. It is, no doubt, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">premised on the land being in excess of a certain\r\nthreshold becoming subject matter of the planning\r\npermission. The land so reserved is to be freed from\r\nany construction by the owner/promoter/developer. The\r\nland for communal and recreational purposes, is to be\r\nrestricted at ground level in a shape and location to\r\nbe specified by the CMDA (See Clause (3) of the\r\nExplanation in Rules.). Therefore, the exact land to\r\nbe reserved under the impugned Rule, will vary from\r\ncase to case. It is not to be confused with the areas\r\nrequired, reserved or designated in the plan. In fact,\r\nin Annexure XX, which is the subject matter of the 2008\r\nRegulations, the specific requirement in regard to the\r\nplace where the OSR is to be located is indicated as\r\nthe place where the property abuts a public road.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>67. The contention is taken that Sections 48 and 49 do\r\nnot authorise or enable deprivation of a person’s\r\nproperty sought to be developed free of cost. Equally,\r\nit is contended that Sections 52 to 54 obligate the\r\nstate to acquire lands even if permission for\r\ndevelopment is rejected or if any of the conditions for\r\nany permission is objected or even if any modifications\r\nof already given permission is not acceptable to the\r\nowner. It is also contended that Sections 52 to 54\r\npatently provide for compensation. Therefore, the\r\nimpugned rule which provides for a compelled gift\r\ninvolving transfer of right to property free of cost\r\nis ultra vires. It is the further contention that the\r\nlegislature took extraordinary care to ensure that a\r\nlandowner is not affected or injured even slightly\r\nbecause of the planning law. The exceptions from\r\nobligation to pay compensation are provided in Sections\r\n17(2)(k) and (l) which relate to the use of land and\r\ndo not provide for reserving any land for public\r\npurpose.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>70. We are unable to find merit in the contention that\r\nRule 19 of the DCR or the regulation which is impugned\r\nis in anyway ultra vires of the provision of the Act\r\nand the arguments suggestive of the same are repelled.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>71. Even though the appellant’s (M/s. Keyaram Hotels\r\nPvt. Ltd.) attempt to invite us to pronounce on the\r\nvalidity of the impugned rule on the score that it\r\ncontravened the provisions of the Tamil Nadu Apartment\r\nOwnership Act, 1994 which got presidential assent on\r\n06.04.1995 and came to be notified on 24.04.1995, we\r\ndo not think that the appellant should be permitted to\r\ntest the validity of the impugned rule on a ground\r\nwhich was not raised before the High Court. It is true\r\nthat the gift deed was executed on 22.05.1996. But this\r\nwas not a ground which was urged before the court and\r\nwe do not intend to explore the contention in this\r\nproceeding. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>151. We have noticed from the pleadings that the\r\nappellants and the petitioner substantially do not\r\nchallenge the setting apart of land for the purpose of\r\ncommunal or recreational purpose. The objections appear\r\nto be as follows. The word ‘communal’ must be\r\ncontextually interpreted to confine the benefit of\r\nreservation for the occupants of the buildings and it\r\nmust not be made available to the members of the public.\r\nIn the case of Vasanth Apartments, they object to the\r\nland set apart under the gift deed, being used to cater\r\nto the members of the public in general, by converting\r\nit into a public road. In fact, it must be remembered\r\nthat in the case of Vasanth Apartments, as rightly\r\npointed out by Shri Jayant Muth Raj, learned Senior\r\nCounsel, the gift was not executed by the members of\r\nthe Association. The property was gifted by the\r\ndeveloper as a condition for developing the land. The\r\ndeveloper, in other words, who put together the project\r\nor developed the project, is the person who would have\r\na right to have the property revested. He accepts the\r\ngift. It is obvious that having been a party to the\r\ngift it may not lie in his mouth to impeach the same. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">[See in this regard the Judgment of this Court in\r\nNarayanrao Jagobaji (supra)]. It is not as if the\r\nmembers of the Vasanth Apartment Owners Association\r\nclaim to have an assignment of the right over the land\r\nwhich is gifted from the original owner. Therefore, as\r\nfar as the members of the Vasanth Apartment Owners\r\nAssociation are concerned, on the factual basis\r\navailable, it may not lie in their mouth, noticing two\r\nother features as well, to contend that the Court must\r\ninvalidate the Rule. The gift was executed in the year\r\n1994. The Writ Petition is filed almost 12 years after.\r\nSecondly, the first Writ Petition, filed by the members\r\nof the Vasanth Apartment Owners Association, was by\r\ndrawing support from the gift deed. They wanted that\r\nthe property must be continued as recreational and OSR\r\narea. A learned Single Judge allowed the writ petition.\r\nThereafter, there were two Writ Appeals filed, one by\r\npersons who claimed that the area was being used as a\r\npublic road, and another, by the Corporation of Chennai\r\nand the CMDA. There was an interim Order passed by the\r\nDivision Bench. It is thereafter, that the second Writ\r\nPetition is filed by them challenging the Rule. While, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">it is true that mere passage of time will not make an\r\nunconstitutional provision valid, the delay, with which\r\na prevailing Statute is impugned, becomes a factor,\r\nwhich the Court would not ignore. In this case, as if\r\nsuch factors were not sufficient, we notice the further\r\ndevelopment. The Rules came to be repealed by the\r\nRegulations in the year 2008 and the Regulation stood\r\nrepealed in the year 2019 by Statutory Rules made in\r\nthe said year. The challenge to the Rule, on the basis\r\nof Article 300A and, indeed, Article 14 as well by\r\nAssociation of Vasanth Apartment Owners Association\r\nmust fail, as it cannot even be their case that their\r\nright in property was deprived. The appellants never\r\nhad any proprietary right in the property to allege\r\ndeprivation of the same. Even if the Rule is found bad,\r\nthere can be no question of voiding the gift at the\r\nappellant’s instance.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>166. Having made these observations, we pass on to\r\nconsider further aspects. In the case of Vasanth\r\nApartments, i.e., Civil Appeal Nos. 1890-1891 of 2010,\r\nthe developer undoubtedly executed a gift deed. A\r\ncontention is taken on behalf of the respondents\r\nincluding Shri Jayant MuthRaj that the donor has gifted\r\nthe land for roads and parks from the perusal of the\r\ngift deed. It would appear that the donor has indeed\r\ngifted the land in question and provided that the donee\r\nmay peacefully and quietly enjoy the said land ‘of\r\nroads/parks’ free from all encumbrances. At this <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">juncture, we bear in mind the actual terms of the gift\r\ndeed executed in the case of Association of Vasanth\r\nApartments, which we have adverted to in paragraph-47\r\nof this Judgment. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>171. In the case of M/s. Keyaram Hotels Pvt. Ltd., the\r\nterms of the gift deed provide that the gift is made\r\nso that the donee may at all times, peacefully and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">quietly, possess and enjoy the said portion only as\r\nopen space, free from all encumbrances, without any\r\nlawful eviction, interruption, claim whatsoever from\r\nthe donor. A perusal of Rule 19 (b)(II)(vi) in relation\r\nto the extent of size between 3,000 and 10,000 square\r\nmetres contemplates that the reserved area is to\r\nmaintained as a park.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>176. Rule 61(7) of the Andhra Pradesh Rules in Andhra\r\nPradesh, which we have referred to, is unambiguous that\r\nthe area used as ‘greenery’ shall be accessible to the\r\n‘entire community’. It is to be secured by means of the\r\ngift contemplated in Rule 61(14). While, we cannot be\r\nsitting in Judgment over the said Rule, we would think\r\nthat the purport of the impugned Rule/Regulation must\r\nbe understood as persuading the Court to not place a\r\nnarrow interpretation.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>177. In this regard we find reassurance in the view\r\ntaken by the courts in the United States even in the\r\npresence of the taking clause under the 5th Amendment\r\nto the U.S. Constitution. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">We would therefore come to the conclusion that the\r\nword ‘communal’ must be understood as where the layout\r\nexceeds 10000 sq.meters entitling members of the\r\ngeneral public also to avail the benefit of the OSR\r\narea. Once, the word ‘communal’ is so understood it\r\nfurther fortifies us in our conclusion that there would\r\nbe no infraction of Article 300A or Article 14 as\r\nunderstanding the execution of the gift deed as\r\nobligating the donee only to act as a trustee to ensure\r\nthe fulfilment of the sublime goal of the law and since\r\nthe owner/developer would not have a right to exclude\r\nothers or to claim exclusive right to possession which\r\nwould be incongruous to recognising the right of the\r\nmembers of the general public to access to the OSR </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">area. This discussion furnishes our rationale to\r\nuphold the Rule / Regulation and to hold that it can\r\nwithstand the challenge based on Article 300A on the\r\nbasis that properly appreciated the “so called\r\ncompelled gift” would be valid. Even proceeding on the\r\nbasis that a challenge to Rule 19(b) would imply a\r\nchallenge to the Explanation as well, on the reasoning\r\nwhich has appealed to us, namely, about the nature of\r\nthe right under the Gift Deed as also finding that the\r\nword ‘communal’ is intended to reach the benefit of\r\nthe OSR area to the members of the public as well,\r\nthere would be no merit in the contention.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>178. The upshot of the above discussion may be summedup as follows:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>I. Rule 19 of the DCR, which is impugned, is statutory\r\nin nature;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\nII. Rule 19 is not ultra vires the Act;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\nIII. The impugned Regulation is not ultra vires the Act;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>IV. Neither the impugned Rule nor the Regulation\r\nviolates Article 14 of the Constitution of India;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\nV. The impugned Rule/Regulation does not violate\r\nArticle 300A of the Constitution of India;\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>VI. The areas covered by the OSR cannot be diverted\r\nfor any other purpose. The respondents are dutybound to ensure that the area set apart as OSR is\r\nstringently utilised only for the purpose in the\r\nRule/Regulation. We direct that no area meant for\r\nOSR shall be utilised as dumping yards or any other\r\npurpose other than as OSR;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\nVII. As far as Civil Appeal Nos. 1890-1891 of 2010 are\r\nconcerned, we are of the view that in view of the\r\nfact that there appears to have been a kachha road,\r\neven at the time of the gift executed as early as\r\nin February, 1994 and it was being used as a road\r\nby large numbers of members of the public to\r\nreverse the position on the ground, may produce a\r\ngreat deal of injustice, which we would avoid by\r\nresorting to the principle enunciated in the\r\ndecision of this Court referred to in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Taherakhatoon (D) By LRs. v. Salambin Mohammad70.\r\nHowever, if the property gifted is in excess of\r\nthe area used for the road, we direct that the\r\nexcess land shall be used for the purpose of OSR\r\nonly. We also direct that the Authority may\r\nconsider making available the maintenance of the\r\nsaid area to the appellants, namely,\r\nAssociation of Vasanth Apartments Owners, if they\r\nare prepared to maintain it in terms of the\r\nobservations contained in this judgment.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>179. Civil Appeals 1890-1891 of 2010 are disposed of.\r\nThe other Appeals and the Writ Petition will stand\r\ndismissed subject to the observations/directions we\r\nhave made earlier. No order as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '417c12d4d8ea905d73555f8d2a4f08d9.jpg', 'd2f336c6ee91ae0c1f84a24ae07587d6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-15', 1, '', '', '2023-02-14 13:54:26', '2023-02-15 10:32:50'),
(2676, 'vmskd6wY1WwYmON61BACgn4XP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Appointment of Court Commissioner under Order XXVI Rules 9 and 10 of the Code of Civil Procedure. Karnataka High Court lays down authoritative guidelines. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shadaksharappa Vs Kumari Vijayalaxmi and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. 201724 of 2022 decided on 24 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Anant Ramanath Hegde.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In a suit for mandatory injunction for removal of the\r\nalleged encroachment on the suit road, to prove the\r\nencroachment, the plaintiff filed an application for\r\nappointment of the Commissioner for local inspection.\r\nAccepting the objection by the first defendant, the Trial\r\nCourt rejected the application, on the ground that the\r\napplication filed before the completion of the trial is\r\npremature.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The liberty is granted to file a fresh application, after\r\nthe completion of the trial, provided there is any ambiguity\r\nin the evidence. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Though the application is filed under\r\nOrder XXVI Rule 10-B, of the Code, the contentions raised,\r\nhave to be necessarily examined in the backdrop of the\r\nprovisions applicable for local inspection, i.e., Order XXVI\r\nRules 9 and 10 of the Code. In the backdrop of the\r\ncontentions raised, the court has to answer three\r\nquestions.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(a) Whether the appointment of a Commissioner\r\nfor local inspection amounts to collection of\r\nevidence?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(b) Whether the application for appointment of a\r\nCommissioner for local inspection can lie\r\nbefore the commencement of the trial.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(c) Whether the Commissioner for local inspection\r\ncan be appointed in a suit for an injunction?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">10. The above-referred view can also be justified\r\nfrom another perspective. Under Order XXVI Rule 10, as\r\nnoticed above, the report of the Commissioner and the\r\nevidence taken by him is a piece of evidence. The word\r\nevidence is not defined either under the Code or under the\r\nIndian Evidence Act. However, the Indian Evidence Act,\r\namong others, deals with oral and documentary evidence.\r\nThe report of the court Commissioner would be\r\ndocumentary evidence under the Indian Evidence Act. The\r\nparty to the suit is entitled to produce the documentary </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">evidence in support of his case, subject of course, to the\r\nrelevancy of the document. In that view of the matter also,\r\nthe contention that the appointment of a Commissioner for\r\nlocal inspection, or scientific/forensic investigation,\r\namounts to collection of evidence and for this reason the\r\napplication is maintainable is not a valid, not contention.\r\nOn the other hand, the party to a suit in an appropriate\r\nproceeding is enabled under the law to prove his case\r\nthrough the report of the Commissioner. Thus, in a given\r\ncase that calls for the appointment of a Commissioner, if\r\nthe application is rejected, the same amounts to a denial\r\nof permission to lead evidence.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. The next question is, at what stage of the\r\nproceeding in a suit, the application can lie? As could be\r\neasily noticed from the provision, the provision is not\r\n‘stage’ centric. Thus the provision can be invoked either\r\nbefore the commencement of the trial or after. If the\r\napplication is filed before the commencement of the trial,\r\nthe court having regard to the pleadings and records may\r\nallow such application before the commencement of the\r\ntrial. For example, in a given case, if the report is\r\nnecessary for consideration of an application seeking some\r\ninterim measure, before the commencement of the trial,\r\nthe Commissioner can be appointed, if the case is made <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">out for a such appointment. On the other hand, again,\r\nhaving due regard to the pleadings and records, if the\r\ncourt finds that there is every likelihood that after\r\nrecording the evidence of the parties, the need to appoint\r\nthe court Commissioner may not arise or that the court is\r\nof the view that it can take a call on the application, only\r\nafter recording the evidence, then it may defer the order\r\non the application till such time. Thus the decision as to\r\nwhen the report of the Commissioner is to be secured\r\nmust be taken having due regard to the facts and\r\ncircumstances.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. For the reasons stated above, this court is of\r\nthe view that the dispute between the parties is one\r\nrelating to alleged encroachment, the trial court could not\r\nhave rejected the application on the premise that the trial\r\nis not complete. Considering the nature of the case, this\r\ncourt is of the view that an order rejecting the application,\r\nwith the liberty to file an application for local inspection\r\nafter the trial is nothing but placing the cart before the\r\nhorse. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. The next question is whether the court\r\nCommissioner for local inspection can be appointed in a\r\nsuit for an injunction</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. The answer to the question referred to above,\r\nlies in the reframing question and the question would be\r\nwhether the power of the court to appoint the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Commissioner is controlled by the form of the suit. The\r\nanswer is a big no. The language of the provision is clear.\r\nIt does not impose any such restrictions based on the form\r\nof the suit. The guiding factor is ‘whether the report is\r\nnecessary for elucidating matters in dispute’. It can be any\r\nkind of suit. Be it suit for injunction, mandatory injunction,\r\ndeclaration and injunction, possession, partition, specific\r\nperformance, or any suit for that matter. The form of a\r\nsuit is never the guiding or deciding factor while\r\nconsidering the application for the appointment of a\r\nCommissioner. In the judgment of M.P. Rajya Tilhan\r\nUtpadak Sahakari Sangh Maryadit v. Modi Transport\r\nService referred supra, the Apex court has held that the\r\ncourt has wide discretion under Order XXVI Rule 9 of the\r\nCode to appoint the Commissioner. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">This being the position, the application for appointment of\r\nCommissioner cannot be rejected on the premise it\r\namounts to collection of evidence or on the premise that it\r\nis not permissible looking into the form of the suit. If the\r\nCourt deems it fit that the report is necessary to elucidate\r\nthe matter in dispute then the application for local\r\ninspection has to be allowed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. For the reasons discussed above, the\r\ncontention taken by defendant/respondent No.1 that the\r\nappointment of a Court Commissioner, in this case,\r\namounts to collection of evidence does not merit\r\nconsideration at all. The burden of proving the alleged\r\nencroachment is on the plaintiff. Instead of voluminous\r\noral evidence, if the petitioner seeks to prove his\r\ncontention relating to encroachment through the report of\r\nthe Commissioner, the prayer for local inspection should <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be willingly granted unless there are justifiable reasons for\r\nthe court to take a view that the local inspection is a futile\r\nexercise. For this reason, this Court is of the view that the\r\nTrial Court committed a grave error in not appointing a\r\nsurveyor for local inspection.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">23..... </span>Order XXVI of the Code, in an appropriate case, is an\r\neffective tool available to the court and the party to the\r\nproceeding. The party to the proceeding, may use this tool\r\nfor proving his/her case and the court to unravel the\r\nmystery surrounding the case.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n The writ petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'da641d8e2c9be7e740ec1223a97e49b5.JPG', '271034ab9e05c78448d72bc8e222a0ec.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-15', 1, '', '', '2023-02-14 15:27:33', '2023-02-15 03:22:03');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2679, 'F6RCbDXX7fUpl5HN2VNYEHYtK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Judicial estoppel. Person participating in the proceedings despite knowledge of the defect in the jurisdiction of an Authority without any objection is disentitled from questioning the jurisdiction in subsequent proceeding. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R.M. Manjunath Gowda Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.A. 1396 of 2021 decided on 9 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Alok Aradhe and Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This intra court appeal emanates from an order\r\ndated 17.11.2021 passed by Learned Single Judge by\r\nwhich writ petition preferred by the appellant has\r\nbeen dismissed and order dated 14.10.2020 passed by\r\nJoint Registrar, Co-operative Societies disqualifying\r\nthe appellant from continuing in any post in District\r\nCentral Co-operative Bank, Shimogga (hereinafter\r\nreferred to as \'the DCC\' for short) has been upheld.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 2. Facts giving rise to filing of this appeal\r\nbriefly stated are that appellant is an elected Director\r\nand President of DCC, Shimogga. The appellant was\r\ndisqualified by an order dated 14.07.2020 passed by\r\nJoint Registrar, Cooperative Societies, Bengaluru.\r\nThe said order was challenged by the appellant in a\r\nwrit petition viz., W.P.No.8891/2020 inter alia on the\r\nground that it is a product of unfair procedure <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">followed by Joint Registrar, Cooperative Societies,\r\nBengaluru. At the time of hearing of the petition,\r\nlearned Advocate General stated that the order of\r\ndisqualification be set aside and the matter be\r\nremitted to any of the four joint registrars mentioned\r\nin the memo. Learned Senior Counsel for the\r\nappellant stated before the Learned Single Judge that\r\nthe Learned Single Judge may in its discretion choose\r\nany one of the four joint registrar\'s and the matter be\r\nremitted. In the light of aforesaid submission, the\r\nLearned Single Judge by an order dated 14.08.2020\r\nset aside the order of disqualification of the appellant\r\ndated 14.07.2020 and directed that an enquiry shall\r\nbe conducted by the Joint Registrar, Cooperative\r\nSocieties and Managing Director of DCC, Chitradurga\r\nwithin six weeks. All contentions of the parties were\r\nkept open.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The appellant challenged the aforesaid\r\norder in a writ petition before the Learned Single\r\nJudge. The Learned Single Judge by an order dated\r\n17.11.2021 inter alia held that appellant did not raise\r\nthe issue with regard to jurisdiction of JRCS,\r\nChitradurga, either before the Learned Single Judge <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">or before the division bench in the earlier round of\r\nlitigation. It was further held that the appellant was\r\nsitting on the fence and waiting for the outcome of the\r\nenquiry and by his conduct has disentitled himself to\r\nmake grievance with regard to jurisdiction of JRCS,\r\nChitradurga to pass an order of disqualification in this\r\nwrit petition. It was also held that raising the issue of\r\njurisdiction after having participated in the\r\nproceeding amounts to abuse of the process and\r\njudicial estoppel is a part of doctrine of equitable\r\nestoppel. The Learned Single Judge opined that the\r\nappellant has a remedy of an appeal under Section\r\n106(1)(d-2) of the Karnataka Cooperative Societies Act,\r\n1959 (hereinafter referred to as \'the Act\' for short).\r\nAccordingly, the writ petition preferred by the\r\nappellant was dismissed. However, liberty was\r\nreserved to the appellant to avail of the alternate </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">remedy. In the aforesaid factual background, this\r\nappeal has been filed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. In the light of well settled legal principles,\r\nwe may now advert to the facts of the case in hand.\r\nAdmittedly, the appellant was disqualified for the first\r\ntime on 08.12.2016. It is also not in dispute that the\r\nappellant challenged the validity of order of\r\ndisqualification in a writ petition viz.,\r\nW.P.No.63355/2016, which was dismissed by an\r\norder dated 17.11.2021 and the appellant was\r\nrelegated to avail, alternative remedy of filing an\r\nappeal. It is pertinent to mention that the appellant in\r\nthe aforesaid proceeding did not raise the issue with\r\nregard to jurisdiction of the joint registrar to pass an\r\norder of disqualification. In compliance of the liberty\r\ngranted to the appellant by Learned Single Judge, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appellant preferred an appeal, which was allowed by\r\nan order dated 13.05.2022 by the appellate authority.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">17. Thus, it is evident that the order passed by\r\nthe Learned Single Judge was passed with the\r\nconsent of the appellant, which was upheld by\r\ndivision bench of this court. Neither in the writ\r\npetition nor in the appeal, the appellant raised the\r\nissue with regard to jurisdiction of the JRCS,\r\nChitradurga to adjudicate the dispute with regard to\r\ndisqualification of the appellant. It is also noteworthy\r\nthat the appellant did not raise any objection with\r\nregard to jurisdiction of the JRCS, Chitradurga even </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in the proceeding before him. For the first time, the\r\nappellant raise such a contention in the writ petition,\r\nwhile challenging the order dated 14.10.2020 passed\r\nby the Joint Register, Cooperative Societies.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. The appellant is precluded by his conduct\r\nto raise the issue of jurisdiction of JRCS, Chitradurga\r\nas he agreed to remand of the matter to any of the\r\nfour joint registrars. The appellant has been sitting on\r\nthe fence and has waited for the outcome of the\r\nproceeding initiated by JRCS, Chitradurga. His\r\nconduct therefore, disentitles him to any relief in\r\nexercise of extraordinary jurisdiction under Article\r\n226 of the Constitution of India. The writ court was\r\njustified in declining to exercise its extraordinary\r\ndiscretionary jurisdiction in favour of the appellant\r\nwho had acquiesced in passing of the order dated\r\n14.08.2022 by Learned Single Judge. The State\r\nGovernment is the competent authority to confer the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">powers of Joint Registrar Cooperative Societies any\r\nadditional registrar of the cooperative society. In any\r\ncase, the from the stand taken by the government\r\nbefore the Learned Single Judge, it can safely be\r\ninferred that it had conferred the power on JRCS,\r\nChitradurga to decide the dispute. The instant case is\r\ntherefore, not a case of inherent lack of jurisdiction.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 19. The contention made by Learned Senior\r\nCounsel for the appellant that the appellant did not\r\ngive consent for passing of order dated 14.08.2020 by\r\nthe Learned Single Judge does not deserve\r\nacceptance. The State Government is the competent\r\nauthority to confer powers of joint registrar on any of\r\nassistant registrar and therefore, in the facts of the\r\ncase, the memo filed on behalf of the State\r\nGovernment has to be construed as conferring power\r\non the JRCS, Chitradurga to decide the dispute\r\npertaining to disqualification of the appellant. </span><span style=\"font-size: 12pt;\">Therefore, the contention of the appellant that JRCS,\r\nChitradurga was not competent to decide the dispute\r\nis negatived.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b> 20. Though many submissions have been\r\nmade, however, it is not necessary for us to advert to\r\nthe same in this intra court appeal, as the impugned\r\norder passed by JRCS, Chitradurga is an order\r\nappealable under Section 106 of the Act. We therefore,\r\npermit the appellants to raise all such contentions in\r\nan appeal, which may be preferred by them under\r\nSection 106 of the Act. In case, such an appeal is\r\nfiled within a period of three weeks from today, the\r\nappellate authority shall decide the appeal\r\nexpeditiously after hearing the parties within a period\r\nof six weeks from the date of filing of the appeal. It is\r\nclarified that we have not expressed any opinion on\r\nmerits of the matter. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>For the aforementioned reasons, we do not find\r\nany ground to differ with the conclusion arrived at by\r\nthe Learned Single Judge. With the aforesaid\r\ndirections, appeal is disposed of. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '212f011c683822d2c1836b57b8962fea.jpeg', 'b88ef911d24e65ccc5b165b2b0af6946.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-16', 1, '', '', '2023-02-15 13:25:40', '2023-02-16 12:05:49'),
(2681, 'rF9w2HacF7tOstqC4XzSmHFCN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'MVC Case. Split multiplier. Higher multiplier for the salary component and lower multiplier for the pension component is justified when the person had no future prospect of re-employment. Karnataka High Court explains. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Branch Manager, The New India Assurance Co., Ltd Vs Mallamma and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Misc. First Appeal 200165 of 2019 decided on 6 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar and Justice T.G. Shivashankare Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. M.F.A.No.200165/2019 is filed by the\r\nInsurance Company. M.F.A.No.201674/2019 is by the\r\npetitioners claiming enhancement of compensation.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Briefly stated the facts are that, the\r\npetitioner No.1 is the wife, petitioner No.2, 3 and 4\r\nare the children of Yashawant Dafale, the deceased.\r\nOn 21.10.2016, as a pillion rider of a motor cycle <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">bearing No.MH-13/CG-9355, the deceased met with\r\nan accident, sustained fatal injuries and succumbed to\r\nsaid injuries on the next day.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The petitioners approached the Tribunal\r\nclaiming compensation of Rs.57,00,000/-. The claim\r\nwas opposed by the Insurance Company. The\r\nTribunal awarded compensation of Rs.35,61,000/-.\r\nPleading inadequacy of compensation, the petitioners\r\nare before this Court whereas, the Insurance\r\nCompany contending that the principle of \'split\r\nmultiplier\' ought to have been adopted, tax\r\ncomponent ought to have been deducted and that the\r\nTribunal had no jurisdiction to try the matter, has\r\ncome before this Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. As we notice, the tax component, i.e.,\r\nprofessional tax at Rs.200/- and TDS of 10% towards\r\nincome tax i.e., Rs.3,700/- was not excluded from\r\nsalary of Rs.35,000/- drawn by the deceased. The\r\nTribunal did not consider the said aspect, which\r\nrequires to be rectified in the instant appeal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Now the issue is regarding whether the\r\nprinciple of \'split multiplier\' is applicable to this case or\r\nnot. In this regard, both side Advocates put forth\r\ntheir contentions.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">15. Now, in the instant case, the deceased was a\r\nMSRTC Conductor, left with six years of service. If the\r\ncontention of the counsel for the petitioner that split\r\nmultiplier cannot be applied is to be considered, the\r\ndeceased should have been a highly skilled person or\r\nProfessor or a Manager of a Bank or a professional of\r\ngreat demand having chances of earning postretirement; but in this case, the deceased was a bus\r\nconductor. It is impossible that a bus conductor\r\ncomes under the category of professionals having\r\nchances of re-employment elsewhere post-retirement.\r\nHence, the principles laid down in Vijayalaxmi\'s case </span><span style=\"font-size: 12pt;\">in M.F.A.No.200348/2018 (supra) are not applicable\r\nto the fact of this case. The principles laid down in\r\nPrithviraj\'s case in M.F.A.No.20727/2010 and\r\nconnected appeals (supra) are aptly applicable to the\r\ncase on hand.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>\r\n 16. Therefore, we are of the considered opinion\r\nthat the principle of \'split multiplier\' if applied to the\r\ncase on hand, it will not controvert the principles laid\r\ndown in Sarla Verma and Pranay Sethi\'s cases.\r\nHence, it is a fit case to apply \'split multiplier\' i.e., \'6\'\r\nfor the full salary and \'5\' for the pension and\r\naccordingly, the compensation has to be determined. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. If all these factors are taken into\r\nconsideration, the determination of loss of\r\ndependency would be:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The salary of the deceased was Rs.35,000/- per\r\nmonth and if tax component at Rs.3,700/- is\r\nexcluded, the net income will come to Rs.31,300/- per <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">month. 1/4th is to be deducted towards personal\r\nexpenses because of four dependants on the\r\ndeceased. 1/4th comes to Rs.7,825/-. Then the\r\nincome comes to Rs.23,475/-. If the principles of\r\nPranay Sethi and Sarla Verma (supra) are applied,\r\nfor the age between 50 and 60 years, the future\r\nprospects of 15% has to be taken. If future prospects\r\nof 15% is added, it comes to Rs.3,521/-. Then the\r\nincome comes to Rs.26,996/-x12=Rs.3,23,952/- per\r\nannum.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 18. Now, the split multiplier is applied, i.e., \'6\', it\r\ncomes to Rs.19,43,712/- (Rs.3,23,952/-x6) and by\r\napplying the split multiplier of \'5\' x Rs.3,23,952x50%\r\ncomes to Rs.8,09,880/-. If both are added up, the\r\nloss of dependency would come to Rs.27,53,592/- .\r\nThe deceased left behind his wife and three children.\r\nHence, towards loss of consortium to wife and loss of\r\nlove and affection to the children, Rs.40,000/- each is </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to be added and it comes to Rs.1,60,000/-. Towards\r\nloss of estate and funeral expenses Rs.15,000/- each\r\nhas to be added. The petitioners have spent\r\nRs.16,080/- towards treatment of the deceased as he\r\ndied on the next day of the accident in the hospital.\r\nHence, Rs.16,080/- has to be reimbursed towards\r\nmedical expenses. Thus, if all these heads are\r\ncomputed, the total compensation works out at\r\nRs.29,59,672/- as against Rs.35,61,000/- awarded by\r\nthe Tribunal, thereby the compensation is decreased\r\nby Rs.6,01,328/-. Accordingly, the appeal filed by the\r\nInsurance Company deserves to be allowed and the\r\nappeal filed by the petitioners has to be dismissed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> (i) M.F.A.No.200165/2019 filed by the\r\nInsurance Company is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '23d4307996f921c90732085eac9d8a33.jpeg', '829cd2496825fdf396d1de36eb9a693c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-16', 1, '', '', '2023-02-15 13:55:57', '2023-02-16 10:22:26'),
(2682, 'MUys3sBzUtzftFT6lzHNMQN05', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land acquisition. Enormous delay in passing awards. Karnataka High Court awards additional interest at 12% per annum from the date of the notification/possession. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Doddamma Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 2848 of 2008 decided on 1 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>All these petitions broadly having common law &\r\nfacts, are filed by the land owners for laying a challenge to\r\nthe acquisition of their lands under the provisions of the\r\nKarnataka Industrial Areas Development Act, 1966</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. After service of notice, the State being the\r\nacquiring body has entered appearance through the AGA;\r\nthe KIADB and its SLAO have entered appearance through\r\ntheir panel counsel and they have filed their objections.\r\nThe allottee of the land being a respondent also is\r\nrepresented by its advocate and its has filed its Statement\r\nof Objections, opposing the Petitions. All the learned AGA,\r\nlearned Panel Counsel for the KIADB & learned counsel for\r\nappearing for the Education Trust making submission in\r\njustification of the impugned acquisition, controverting the\r\nPetition averments</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. Having heard the learned counsel for the parties\r\nand having perused the Petition Papers, although this </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court declines indulgence so far as, the challenge to\r\nacquisition is concerned; however, it is inclined to grant\r\nsome relief to the land owners as under, and for the\r\nfollowing reasons:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(a) In all these cases, the Preliminary Notification\r\nunder section 28(1) came to be issued on 15.7.1994 and it\r\nwas followed by the issuance of Final Notification on\r\n22.7.1996 under section 28(4) of the KIAD Act, 1966. A\r\nDivision of this Court having scanned the provisions of\r\n1966 Act and the erstwhile Land Acquisition Act, 1894 in\r\nW.P.No.17600/2004 etc., between NANDI\r\nINFRASTRUCTURE CORRIDOR ENTERPRISE LIMITED vs.\r\nSTATE & OTHERS, disposed off on 15.06.2011 has held\r\nthat once the Final Notification is issued, the land would\r\nvest in the State, whether award is passed or not,\r\ncompensation is paid or not and possession is taken or\r\nnot. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Thus, the scheme of acquisition under the 1966 Act is bit\r\nin variance with that of the 1894 Act, whereunder, the\r\nland will vest only after award is passed and possession is\r\ntaken. That being the position, the grievance of the\r\nPetitioners that despite KIADB Resolution recommending\r\ndenotification of these lands, the government is not\r\njustified in accomplishing the process of acquisition, is\r\nlegally unsustainable.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(g) All the above having been said, two things stare\r\nat the culpable action of the State and the KIADB: Firstly,\r\nit hardly needs to be stated that when a public\r\nfunction/duty is to be discharged by a statutory authority,\r\neven when no time period is prescribed, the same has to\r\nbe done within a reasonable time vide NEKKANTI RAMA\r\nLAKSHMI vs. STATE OF KARNATAKA 2017 SCC Online SC\r\n1862. Decades have passed since the acquisition was\r\nnotified, not even a rupee from the compensation has\r\nreached the hands of land losers. In a Welfare State, this\r\nis not a happy thing to happen. All this cannot go\r\nunscathed; some compensatory relief needs to be granted\r\nto the land owners for the culpable delay attributable to\r\nthe State & the KIADB. Secondly, the acquisition having\r\nbeen accomplished by issuance of the Final Notification,\r\nthe lands have vested in the State; in W.P.No.3539/2006,\r\nadmittedly no award has been passed; in other cases,\r\nalthough awards have been passed, nothing is placed on\r\nrecord to show that the award notices were sent to the\r\nland owners calling upon them to take the compensation.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(h) In what circumstances, the compensation came\r\nto be deposited by the KIADB in the jurisdictional court\r\nremains a mystery wrapped in enigma. The right to\r\nproperty although is not a fundamental right after the\r\n42nd Amendment, it has been given constitutional\r\nguarantee u/a 300A. If the State & its instrumentalities\r\nwant to take private property, that can be done in p ublic\r\ninterest and subject to payment of compensation. Not\r\npassing the award virtually amounts to non-payment of\r\ncompensation; similarly, depositing the compensation\r\namount in the court without informing the land owners,\r\nvirtually amounts to withholding the compensation. All this\r\nmilitates against the spirit of Article 300A of the\r\nConstitution.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) A Coordinate Bench of this Court in\r\nW.P.No.108802/2016 (LA-KIADB) etc., between SREE\r\nS.SEENAPPA AND OTHERS VS. STATE AND OTHERS,\r\ndisposed off on 18.7.2022, in more or less a similar fact\r\nmatrix, has extended some additional benefit to the land\r\nlosers on the lines of section 24 of the 2013 Act, in special <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">circumstances, where constitutional guarantees are\r\nbreached, the State & its instrumentalities cannot go with\r\nimpunity. An argument to the contrary cannot be\r\nsustained without undermining the sanctity attached to the\r\nguarantee of property rights. The aggrieved citizens\r\napproach the court to have some redressal to their\r\ngrievances much banking upon the spirit of constitutional\r\nguarantees. The constitutional courts cannot turn them\r\naway by quoting some jurisprudential theories. Justice\r\nOliver Wendell Holmes in DAVIS vs. MILLS, 194 U.S. 451\r\n(1904) had observed: “Constitutions are intended to\r\npreserve practical and substantial rights, not to maintain\r\ntheories …”.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(j) At times courts have to individualize justice\r\nkeeping in view the framework of law and exploring all\r\npossibilities of working out some just & reasonable remedy\r\nin the facts & circumstances of the case. Viewed from this\r\nangle, this Court is of a considered opinion that for the\r\ndelay brooked in passing the award and paying the\r\ncompensation, the owners of the petition lands should be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">given an additional interest at 12% per annum to be\r\nreckoned from the date of the Final Notification or taking\r\nof the possession of the land, whichever is later. The\r\nextra financial burden incurred by the BDA on account of\r\nthis may be made good by recovering the same in\r\naccordance with law from the erring officials.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n (i) These writ petitions succeed in part, although\r\nthe challenge to the acquisition of the lands in question\r\nfails. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fde84a24aa45ff279b92f32cfc1ef52e.JPG', '58c0e76d04e39f87eebf9d720168bd52.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-17', 1, '', '', '2023-02-15 14:18:10', '2023-02-17 11:48:32'),
(2683, 'TrhlKYgo7OlRXOTg2KLIvx3z4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Employer is not liable to deposit provident fund contribution in respect of payments made in compliance of Section 17-B of the Industrial Disputes Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. IBM India Private Limited Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 41066 of 2014 decided on 1 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice C.M. Poonacha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts leading to the present petition are\r\nthat the respondent No.3 (herein after referred to as\r\n\'workman\') was employed with the petitioner –\r\nCompany and his services were terminated pursuant\r\nto the termination order dated 05.11.2001. Being\r\naggrieved, the workman filed a petition under Section\r\n10(4-A) of the Industrial Disputes Act, 1947 (for short\r\n\'I.D. Act\') before the Labour Court, Bengaluru. The\r\npetitioner entered appearance in the said proceedings\r\nand contested the same. The Labour Court by its\r\naward dated 17.12.2012, directed the petitioner to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reinstate the workman into service with backwages,\r\ncontinuity of service and consequential benefits. The\r\nsaid award of the Labour Court was challenged by the\r\npetitioner before this Court in W.P.No.10715/2013.\r\nThis Court, vide interim order dated 04.03.2013,\r\nstayed the award of the Labour Court, subject to\r\npayment of wages under Section 17-B of the I.D. Act.\r\nIn compliance of the said order dated 04.03.2013, the\r\namount equivalent to the last drawn salary of the\r\nworkman was paid by the petitioner from February,\r\n2013</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The workman filed a complaint dated\r\n02.09.2013, to the second respondent - Regional\r\nProvident Fund Commissioner, K.R. Puram, Bengaluru,\r\nalleging that no Provident Found (for short \'PF\')\r\ncontribution was being deducted from the amount\r\npaid by the petitioner. Pursuant to the said complaint,\r\nthe second respondent issued notice to the petitioner, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in response to which, the petitioner filed a detailed\r\nreply. Thereafter, upon being notified, enquiry was\r\nconducted under paragraph 26-B of the Employees\r\nProvident Funds Scheme, 1952 (for short \'EPF\r\nScheme\') by the second respondent and written\r\nsubmissions were also submitted. The second\r\nrespondent vide order dated 15.07.2014, held that the\r\npetitioner is liable to pay the PF contribution. Being\r\naggrieved, the present writ petition is filed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. I have considered the contentions putforth\r\nby both the parties and perused the material available\r\non record. The question that arises for consideration\r\nis:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>\"Whether the employer is liable to\r\ndeposit the provident fund contribution as\r\nprovided under the Employees Provident\r\nFund Scheme, 1952 in respect of payments\r\nmade in compliance of Section 17-B of the\r\nI.D. Act?\" </b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. The essential facts are undisputed,\r\ninasmuch as, the workman was in the employment of\r\nthe petitioner and he was terminated on 05.11.2001.\r\nThat the said order of termination was set aside by\r\nthe Labour Court by award dated 17.12.2012, which\r\nwas challenged by the petitioner before this Court in\r\nW.P.No.10715/2013. It is further undisputed that this\r\nCourt, vide interim order dated 04.03.2013, stayed\r\nthe award passed by the Labour Court subject to the\r\npetitioner complying Section 17-B of the I.D. Act and\r\nin furtherance thereof, the petitioner has been paying\r\nthe wages to the workman.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. It is clear from the aforementioned that the\r\nwages stipulated under Section 2(rr) of the I.D. Act is\r\nthe remuneration payable to a workman in respect of\r\nhis employment. Section 17-B of the I.D. Act has\r\nbeen inserted by Act 46 of 1982. The purpose of\r\ninserting Section 17-B of the I.D. Act is to enable the\r\nemployee to fight the litigation pursuant to the award\r\nfor reinstatement made by the Labour Court or\r\nIndustrial Tribunal. This aspect is clear from the\r\nproviso to Section 17-B the I.D. Act which stipulates\r\nthat if such workman has been employed and had\r\nbeen receiving adequate remuneration during the said <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">period, no wages under Section 17-B of the I.D. Act is\r\npayable for the said period.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. The payment made under Section 17-B of\r\nthe I.D. Act is under certain situations only to enable\r\nthe employee to fight the litigation that the company\r\nwould agitate before the High Court or the Hon\'ble\r\nSupreme Court and it is in such circumstances, the\r\nHigh Court or the Hon\'ble Supreme Court are entitle to\r\norder for payment of wages under Section 17-B of the\r\nI.D. Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. In the case of Dena Bank (supra), the\r\nHon\'ble Supreme Court has categorically held with\r\nregard to the objective for payment of wages under\r\nSection 17-B of the I.D. Act and the same is required\r\nto be taken into consideration in the present case <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">while deciding the question that arises for\r\nconsideration.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>24. The case of M/s. Orissa Air Products\r\nPvt. Ltd., (supra), is squarely applicable to the\r\npresent case. As noticed above, the payment of\r\nwages under Section 17-B of the I.D. Act is in the\r\nnature of subsistence allowance given to the workman\r\nunder certain circumstances. It is also relevant to\r\nnote that the subsistence allowance paid under\r\nSection 17-B of the I.D. Act is not recoverable or\r\nrefundable, in the event of the award for\r\nreinstatement being set aside.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n25. The payment of backwages under Section\r\n17-B of the I.D. Act is made when the award of\r\nreinstatement made by the Labour Court or Industrial\r\nTribunal is stayed by the High Court. Hence, it is\r\nrelevant to note that the employee has been </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dismissed and the award of directing his\r\nreinstatement is stayed. Hence, the status of the\r\nworkman at that stage is that of a dismissed\r\nemployee and payment made under Section 17-B of\r\nthe I.D. Act cannot be said to be wages to the\r\ndismissed employee. The status of the employment of\r\nthe dismissed employee will only be subject to the\r\noutcome of the litigation initiated by the employer.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">26. In that view of the matter, the question\r\nframed for consideration is answered in the negative\r\nand the relief claimed in the present writ petition is\r\nliable to be granted.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>a) The writ petition is allowed; </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'bd6f4c8c0bece2d718b91a8db68cf150.JPG', '155284fefc5fedd0bc14b47f34ad01f2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-16', 1, '', '', '2023-02-15 15:15:58', '2023-02-16 03:21:22');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2686, '92S6X6AdNqiGXFOGfEinzMAEp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When a public function/duty is to be discharged by a statutory authority, even when no time period is prescribed, the same has to be done within a reasonable time. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Doddamma Vs The State of Karnataka and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 2848 of 2008 decided on 1 February 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Krishna S Dixit.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">All these petitions broadly having common law & facts, are filed by the land owners for laying a challenge to the acquisition of their lands under the provisions of the Karnataka Industrial Areas Development Act, 1966</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. After service of notice, the State being the acquiring body has entered appearance through the AGA; the KIADB and its SLAO have entered appearance through their panel counsel and they have filed their objections. The allottee of the land being a respondent also is represented by its advocate and its has filed its Statement of Objections, opposing the Petitions. All the learned AGA, learned Panel Counsel for the KIADB & learned counsel for appearing for the Education Trust making submission in justification of the impugned acquisition, controverting the Petition averments</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">4. Having heard the learned counsel for the parties and having perused the Petition Papers, although this </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court declines indulgence so far as, the challenge to acquisition is concerned; however, it is inclined to grant some relief to the land owners as under, and for the following reasons:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(a) In all these cases, the Preliminary Notification under section 28(1) came to be issued on 15.7.1994 and it was followed by the issuance of Final Notification on 22.7.1996 under section 28(4) of the KIAD Act, 1966. A Division of this Court having scanned the provisions of 1966 Act and the erstwhile Land Acquisition Act, 1894 in W.P.No.17600/2004 etc., between NANDI INFRASTRUCTURE CORRIDOR ENTERPRISE LIMITED vs. STATE & OTHERS, disposed off on 15.06.2011 has held that once the Final Notification is issued, the land would vest in the State, whether award is passed or not, compensation is paid or not and possession is taken or not. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Thus, the scheme of acquisition under the 1966 Act is bit in variance with that of the 1894 Act, whereunder, the land will vest only after award is passed and possession is taken. That being the position, the grievance of the Petitioners that despite KIADB Resolution recommending denotification of these lands, the government is not justified in accomplishing the process of acquisition, is legally unsustainable.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(g) All the above having been said, two things stare at the culpable action of the State and the KIADB: Firstly, it hardly needs to be stated that when a public function/duty is to be discharged by a statutory authority, even when no time period is prescribed, the same has to be done within a reasonable time vide NEKKANTI RAMA LAKSHMI vs. STATE OF KARNATAKA 2017 SCC Online SC 1862. Decades have passed since the acquisition was notified, not even a rupee from the compensation has reached the hands of land losers. In a Welfare State, this is not a happy thing to happen. All this cannot go unscathed; some compensatory relief needs to be granted to the land owners for the culpable delay attributable to the State & the KIADB. Secondly, the acquisition having been accomplished by issuance of the Final Notification, the lands have vested in the State; in W.P.No.3539/2006, admittedly no award has been passed; in other cases, although awards have been passed, nothing is placed on record to show that the award notices were sent to the land owners calling upon them to take the compensation.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(h) In what circumstances, the compensation came to be deposited by the KIADB in the jurisdictional court remains a mystery wrapped in enigma. The right to property although is not a fundamental right after the 42nd Amendment, it has been given constitutional guarantee u/a 300A. If the State & its instrumentalities want to take private property, that can be done in p ublic interest and subject to payment of compensation. Not passing the award virtually amounts to non-payment of compensation; similarly, depositing the compensation amount in the court without informing the land owners, virtually amounts to withholding the compensation. All this militates against the spirit of Article 300A of the Constitution.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(i) A Coordinate Bench of this Court in W.P.No.108802/2016 (LA-KIADB) etc., between SREE S.SEENAPPA AND OTHERS VS. STATE AND OTHERS, disposed off on 18.7.2022, in more or less a similar fact matrix, has extended some additional benefit to the land losers on the lines of section 24 of the 2013 Act, in special <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">circumstances, where constitutional guarantees are breached, the State & its instrumentalities cannot go with impunity. An argument to the contrary cannot be sustained without undermining the sanctity attached to the guarantee of property rights. The aggrieved citizens approach the court to have some redressal to their grievances much banking upon the spirit of constitutional guarantees. The constitutional courts cannot turn them away by quoting some jurisprudential theories. Justice Oliver Wendell Holmes in DAVIS vs. MILLS, 194 U.S. 451 (1904) had observed: “Constitutions are intended to preserve practical and substantial rights, not to maintain theories …”.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(j) At times courts have to individualize justice keeping in view the framework of law and exploring all possibilities of working out some just & reasonable remedy in the facts & circumstances of the case. Viewed from this angle, this Court is of a considered opinion that for the delay brooked in passing the award and paying the compensation, the owners of the petition lands should be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">given an additional interest at 12% per annum to be reckoned from the date of the Final Notification or taking of the possession of the land, whichever is later. The extra financial burden incurred by the BDA on account of this may be made good by recovering the same in accordance with law from the erring officials.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">ORDER</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">(i) These writ petitions succeed in part, although the challenge to the acquisition of the lands in question fails. </span></p>', 'd6edcc62cc68fd9878eba1a5cc4abd64.JPG', '462b0b1e12552105bd37ba827f5a6612.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-17', 1, '', '', '2023-02-16 13:18:11', '2023-02-17 09:23:00'),
(2695, 'iG2Y2hVKJQ61HLgji3JVea3yU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Labour Law. When workman files statutory appeal as also claim petition under section 10(4-A)of ID Act,in the event of either one of them being disposed,the other proceeding would become infructuous and required to be dismissed as such.Karnataka High Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>B.S. Suresh Vs The Chief Mechanical Engineer and others Vs Karnataka State Road Transport Corporation and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. 31160 of 2013 decided on 7 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The workman was employed as a driver with the\r\nRoad Transport Corporation. On 8.10.1993, he was\r\nrelieved from the post at Divisional Office, Traffic\r\nSection and was transferred to City I Depot, Mysore.\r\nSince the workman did not report to the said Depot,\r\nDepot Manager submitted a report on 06.12.1993\r\ninforming that the workman has not reported for\r\nduty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">6. Aggrieved by the said dismissal, the workman filed\r\nan appeal on 20.07.1994 before the Appellate\r\nAuthority. Simultaneously, the workman also filed a\r\nclaim petition under Section 10 (4-A) of I.D. Act, on </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">25.7.1994 before the Industrial Tribunal, Mysore,\r\nwhich came to be numbered as IID 71/1994.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. A complaint came to be filed by the workman in\r\nComplaint No.25/2004 alleging contravention of\r\nSection 33 A of the I.D. Act. While the said complaint\r\nwas pending, the Labour Court rejected the Claim\r\npetition filed under Section 10(4-A) of the I.D. Act,\r\nvide its order dated 30.10.2007 by holding that the\r\norder under challenge before it had merged with the\r\norder dated 4.4.1995 passed by the Appellate\r\nAuthority and that there is nothing more which\r\nsurvives for consideration.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n10. It is thereafter, the complaint was taken up for\r\nconsideration and the Labour Court vide its order\r\ndated 05.03.2012 allowed the complaint in part by\r\nsetting aside the order dated 18.02.1998 forfeiting\r\nthe right to appointment of the workman and held\r\nthat the workman is deemed to be in service from <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the date of forfeiture i.e. 18.02.1998 till the date of\r\nsuperannuation and as such, he is entitled for full\r\nback wages from 18.02.1998 till superannuation with\r\nall consequential financial benefits under law.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. On the basis of the submissions which have been\r\nmade by both the counsel, the points that would\r\narise for consideration by this Court are as below:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>1. Whether mere pendency of proceedings\r\nbefore the Labour Court/Industrial\r\nTribunal would be sufficient for making\r\napplicable the requirements under\r\nSection 33 (2)(b) of the Industrial\r\nDisputes Act, 1947, more so, when the\r\ndispute itself has been resolved?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. When a workman has availed the right of\r\nStatutory Appeal as also right to file a\r\nclaim petition under Section 10(4A) of the\r\nIndustrial Disputes Act, 1947, in the\r\nevent of either one of the proceedings\r\nbeing disposed, what would be the status\r\nof the other proceedings?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. As a corollary to point No.2, in the event\r\nstatutory appeal having been allowed in\r\nfavour of the workman, could workman\r\nstill contend that the industrial dispute is\r\npending in the claim petition filed under\r\nSection 10 (4A) of Industrial Disputes\r\nAct, 1947 before the Labour Court and as\r\nsuch the rigor of section 33 (2)(b) of\r\nIndustrial Disputes Act, 1947, would be\r\napplicable?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. In the present case, whether the order\r\npassed by the Labour Court in Complaint\r\nNo.25/2004 is proper and correct or does\r\nit suffer from illegality or infirmity?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. What order? <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. Answer to Point No.1: Whether mere pendency\r\nof proceedings before the Labour\r\nCourt/Industrial Tribunal would be sufficient\r\nfor making applicable the requirements under\r\nSection 33 (2)(b) of the Industrial Disputes\r\nAct, 1947, more so, when the dispute itself has\r\nbeen resolved?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17.4. In my considered opinion when the Appellate\r\nAuthority had allowed the appeal in favour of\r\nthe workman, the proceedings before the\r\nIndustrial Tribunal in IID No.71/1994 which <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">came to be renumbered as IID No.43/2001 had\r\nbecome infructuous on 04.04.1995 itself.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>17.5. There was no lis or dispute which was required\r\nto be considered by the Industrial Tribunal in\r\nIID.No.71/1994 since the very dismissal order\r\nwhich was under challenge in those proceedings\r\nhad already been set aside by the Appellate\r\nAuthority on 04.04.1995. Thus, both the\r\nemployer and the workman were required to\r\nact in terms of the order dated 04.04.1995, the\r\nrespondent being required to reinstate, and the\r\nworkman required to report to duty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n17.6.Thus, the pendency of the industrial dispute\r\nbefore the Labour Court which was initially\r\nnumbered as IID No.71/1994 and\r\nsubsequently, renumbered as IID No.43/2001\r\nhad become infructuous on 04.04.1995 and\r\nmere pendency of a dead proceedings, in my\r\nconsidered view would not be sufficient to make\r\napplicable the proviso of Section 33(2)(b) of</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">I.D.Act or the proviso thereof when the dispute\r\nitself had been resolved.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. Answer to Point No.2: When a workman has availed\r\nthe right of a Statutory Appeal as also right to file a\r\nclaim petition under Section 10(4A) of the Industrial\r\nDisputes Act, 1947, in the event of either one of the\r\nproceedings being disposed, what would be the status\r\nof the other proceedings?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18.1.As answered as regards Point No.1 the\r\nworkman himself having availed the right of\r\nstatutory appeal and the said appeal having\r\nbeen disposed in favour of the workman, which\r\nwas to the knowledge of the workman and the\r\nworkman could not have continued the\r\nindustrial dispute under Section 10 (4-A) of\r\nI.D.Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18.4.Hence, I answer Point No.2 by holding that\r\nwhen the workman has availed a right of a\r\nstatutory appeal as also right of filing a claim\r\npetition under section 10 (4-A) of ID Act, in the\r\nevent of either one of the proceedings being\r\ndisposed, the other proceedings would become\r\ninfructuous and be required to be dismissed as\r\nsuch.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. Answer to Point No.3: As a corollary to point No.2, in\r\nthe event statutory appeal having been allowed in\r\nfavour of the workman, could workman still contend\r\nthat the industrial dispute is pending in the claim\r\npetition filed under Section 10 (4A) before the Labour <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court and as such the rigor of section 33 (2)(b) of\r\nIndustrial would be applicable?</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19.1.In view of findings as regards Point Nos.1 and\r\n2, I am of the considered opinion that once the\r\nstatutory appeal had been disposed of in favour\r\nof the workman and in furtherance of the same,\r\na call notice came to be issued by the employer\r\nto the workman on 05.04.1995 which is\r\nadmitted to have been received by the\r\nworkman but the workman did not report to\r\nduty.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19.4.The rigor of Section 33 (2)(b) of I.D.Act or\r\nproviso thereof would not be applicable once\r\nthe statutory appeal had been disposed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. Answer to point No.4: In the present case, whether\r\nthe order passed by the Labour Court in Complaint\r\nNo.25/2004 is proper and correct or does it suffer from\r\nillegality or infirmity?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20.3.As observed above, once the order in the\r\nstatutory appeal had been passed, it was for\r\nthe workman to have reported to duty by\r\nhimself, which he did not do. The employer also\r\nissued a call notice calling upon the workman to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">report work, despite which, the workman did\r\nnot report to work. Thus, I am of the\r\nconsidered opinion that the workman is at fault,\r\nwhich has not been considered by the Labour\r\nCourt in a proper perspective in Complaint\r\nNo.25/2004, the dispute itself having been\r\nresolved by the order passed in the statutory\r\nappeal, the rigor of Section 33 (2)(b) of I.D.Act\r\nand proviso thereof not being applicable, the\r\nComplaint No.25/2004 ought to have been\r\ndismissed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n20.4.I answer Point No.4 by holding that the order\r\npassed by the Labour Court in Complaint\r\nNo.25/2004 is not proper and correct and the\r\nLabour Court has not been taken into account\r\nthe legal position thereof and as such, it is\r\nrequired to be set aside.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>21. Answer to Point No.5: What order:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>1) W.P.No.31160/2013 filed by the petitioner –\r\nworkman is dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '87399a0cdf6cbc6d2c806b2e757efa88.JPG', 'f460be3fb450be947cd049081a834217.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-20', 1, '', '', '2023-02-17 15:13:43', '2023-02-20 10:44:07'),
(2692, '7vfz5mkNq4OXy1HQr57i593Op', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Cheque issued on the account of Co-Operative Society. Complaint filed against the officers without making Co-Operative society a party. Proceedings are liable to be quashed. Karnataka High Court.  ', '<p><span style=\"font-weight: bolder;\">Raju and another vs Suresh.&nbsp;</span></p><p><span style=\"font-weight: bolder;\">Criminal Petition 100258 of 2020 decided on 23 August 2021.&nbsp;</span></p><p><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">This petition is filed by accused Nos.1 and 2 seeking quashing of the entire proceedings in C.C. No.606/2016 on the file of Civil Judge and JMFC, Hukkeri registered or the offence punishable under Section 138 of Negotiable Instruments Act (for brevity ‘N.I. Act’).</span><br></p><p><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. It is not in dispute that the cheque has been issued on the account of Belagavi Liberal Credit Souhard Co. Operative Ltd., in favour of respondent. The said society has not been impleaded as accused. The petitioners who were working as General Manger and Branch Manager respectively were arraigned as accused. Petitioner No.1 is a General Manager of the said society had signed on the said cheque. Whether&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">it is mandatory under Section 141 of N.I. Act impleaded company (society) as one of the accused, has been considered by the Hon’ble Apex court in the case of Aneeta Hada V/s. Godfather Travels and Tours Private Limited, reported in (2012)5 SCC 661.</span></p><p><span style=\"font-weight: bolder;\">10. The Hon’ble Apex Court in the said decision has held that for maintaining the prosecution under Section 141 of N.I. Act arraying of a company as the accused is imperative.&nbsp;</span></p><p><span style=\"font-weight: bolder;\">11. As per provisions of Section 141 of N.I. Act, if the person committed offence under Section 138 is company, every person who at the time the offence is committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence, shall be liable to be proceeded against and punished accordingly. In the absence of company (society) arraigned as accused, a complaint against the petitioners was therefore not maintainable. The petitioners being employed as General Manager and Branch Manager have signed the cheque, therefore, the proceedings against the petitioners are liable to be quashed.&nbsp;</span></p>', '90dfd315eea9e6c43f37db4b1ee40e4b.JPG', '6911a839391710c1579885d4d5ff9884.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-17', 1, '', '', '2023-02-17 13:35:08', '2023-02-17 13:35:08'),
(2689, 'xIrHntA9nSiv3dPw9oHHu0JER', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Acceptance of ‘B’ report by the Magistrate cannot be reversed by the District Judge in revision without issuing notice to the defacto complainant. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rajendra Singh and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 200339 of 2022 decided on 9 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V Srishananda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Brief facts of the case which are necessary for\r\ndisposal of the petition are as under:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Second respondent herein filed a private complaint\r\nagainst the accused/petitioners herein in PC No.549/2019 on\r\nthe file of the IV Additional Civil Judge and JMFC, Kalaburagi,\r\nseeking action against the petitioners for the offence\r\npunishable under Sections 339, 340, 341, 342, 343, 344, 420,\r\n441, 442, 447, 448, 452 read with Section 34 IPC. There is a\r\npending civil dispute between the parties. The said private\r\ncomplaint was referred to police for investigation and filing of\r\nappropriate report by exercising powers under Section 156(3)\r\nof Cr.P.C., by the learned Trial Magistrate. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The defacto complainant filed a protest petition\r\nagainst the ‘B’ final report. The learned Trial Magistrate after\r\nrecording the sworn statement of the complainant and\r\nconsidering the documentary evidence placed on record, was\r\nnot satisfied that the proposed accused persons (petitioners\r\nherein) are to be summoned for further trial and therefore,\r\ndismissed the protest petition.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. On such perusal of the material on record, it is an\r\nadmitted fact that the defacto complainant after filing the\r\nprivate complaint got the matter referred to the jurisdictional\r\npolice who inturn after thorough investigation filed ‘B’ final\r\nreport.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. A protest petition came to be filed by the defacto\r\ncomplainant and the same was considered by the learned Trial\r\nMagistrate and permitted the defacto complainant to have his <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sworn statement recorded and also documents that were\r\nplaced before the Court were marked.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n16. On consideration of the sworn statement material in\r\nthe form of sworn statement and documentary evidence on\r\nrecord, the learned Trial Magistrate was not satisfied that a\r\ncase is made out for the alleged offences to summon the\r\npetitioners before the learned Trial Magistrate for further\r\nproceedings and therefore, dismissed the protest petition.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. It is settled principles of law that no lis can be\r\ndecided in the absence of a party. It is one thing that if a party\r\nis notified about the lis; still he does not choose to appear and\r\noffer his say in the matter. But, notifying a party about the\r\ncase pending against him is a must. This is the bedrock of\r\nprinciples of natural justice.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n21. In the case on hand, if the revisional Court had\r\nissued the notice to the petitioners and heard them before the\r\nrevision could be decided on merits, the revisional Court could\r\nhave had the benefit of the explanation that would have been\r\noffered by the petitioners in respect of the revisional grounds\r\nand the revisional Court could have passed a judicious order.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. Suffice to say, that the learned District Judge in the\r\nRevision Petition did not adopt the said procedure and thereby\r\nthe order passed by the learned District Judge which is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">impugned in the present petition has resulted in miscarriage of\r\njustice.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n23. Therefore, this Court has no hesitation whatsoever\r\nin setting aside the impugned order and remit the matter to the\r\nlearned District Judge for fresh disposal after hearing the\r\npetitioners.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) The Criminal Petition is allowed <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and remanded the\r\nmatter for fresh disposal in accordance with law.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ca5c5cf71827fe3fafe07c12a845809e.JPG', '2718d1a414223fd7db4a8e2f3fa063bc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-17', 1, '', '', '2023-02-16 14:47:43', '2023-02-17 03:21:38'),
(2690, 'QUJbdjErTiqgmyrHcgbBvaFQi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Removal and transportation of sand after obtaining prior permission of the Government does not attract penal provision of Section 379 of IPC since the Section implies removal of the property belonging to another person without consent.Karnataka High Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chethan and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 53678 of 2018 decided on 8 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Petitioners have been charge sheeted for the offence\r\nunder Section 21 of the Mines and Minerals (Development and\r\nRegulation) Act, 1957 (MMRD. Act) and Section 379 of IPC\r\nalleging that, the petitioners were transporting sand\r\nunauthorizedly which was valued at Rs.4,000/-. The cognizance\r\ntaken of the aforesaid offence by the learned Magistrate is\r\nimpugned in this petition.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Petitioners transported the sand after obtaining the\r\npermit. Hence, the charge sheet filed for offence under Section\r\n21 of the MMRD Act and Section 379 of IPC is without any\r\nsubstance.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 6. Offence under Section 21 of the MMRD Act, is the\r\nsubstantive offence. Section 22 of the MMRD specifies that, no\r\nCourt shall take cognizance of any offence punishable under\r\nthis Act or any rules made there under, except upon the\r\ncompliant in writing made by a person authorized in this behalf\r\nby the Central Government or the State Government.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 7. To constitute an offence punishable under Section\r\n379 of IPC, a person must have removed the property\r\nbelonging to another person without his consent. In the\r\npresent case, there is no allegation that the petitioners were\r\ntransporting the sand after removing the sand belonging to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Government without its consent. Moreover, the petitionersaccused have transported the sand after obtaining permit from\r\nthe competent authority. Hence, the cognizance taken for the\r\noffence under Section 379 of IPC is also impermissible.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 8. In the instant case, the learned Magistrate has\r\ntaken cognizance on the basis of the final report submitted by\r\nthe Police which is impermissible and consequently, the\r\ncognizance taken stands vitiated.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 9. In view of the preceding analysis, I am of the\r\nconsidered view that, the continuation of the criminal\r\nproceedings against the petitioners-accused will be an abuse of\r\nprocess of law.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n i) The writ petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0319b62f4bf2307ad38bcc95ced2ce19.jpeg', '09181e54815ee6afc990a26e5d6b2ce8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-17', 1, '', '', '2023-02-16 15:47:40', '2023-02-17 12:35:08');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2694, 'zLrl3q4pyhtGseDqDn4mBryXr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Claim made by a workmen for payment of minimum wages is not a dispute covered under Section 70 of Karnataka Co-operative Societies Act, 1959. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Indian Coffee Workers Co-Operative Society Limited Vs The Senior Labour Inspector and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 22751 of 2021 decided on 7 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioner is a Co-operative Society registered\r\nunder the Co-operative Societies Act in the year\r\n1957. The petitioner was carrying on the business of\r\nrunning a coffee shop in Bangalore. The said\r\nbusiness was going on very well till the year 2016.\r\nHowever, thereafter, it started suffering losses more\r\nso on account of Covid 19 as also on account of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Bruhat Bangalore Mahanagara Palike (BBMP) having\r\ntaken up the work of redoing Church Street, which\r\nhad closed the said road for repair for a period of\r\nnearly a year preventing the customers from visiting\r\nthe coffee hotel being run by the petitioner.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The petitioner, during this time having closed the\r\nsaid coffee shop had not made payment of the wages\r\nand/or contributions as statutorily mandated but had\r\npaid only 50% of the same. It is on this allegation\r\nthat the workmen had once earlier approached the\r\nDeputy Registrar Co-operative Societies who had\r\npassed an order stating that he would not be in a\r\nposition to pass an order on a representation but\r\nhowever, a properly instituted dispute could be\r\nconsidered.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The points that would arise for determination by this\r\nCourt are:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n1) Whether the amendment made to Section\r\n70 of the Karnataka Co-operative Societies\r\nAct, 1959 would impose an embargo on an\r\nauthority under the Minimum Wages Act to\r\nconsider any claim for recovery of\r\nminimum wages and/or would make the\r\nremedies available under the Minimum\r\nWages Act, 1948 read with the Payment of\r\nWages Act, 1936 inapplicable to a claim\r\nfor minimum wages made by the\r\nworkmen?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2) Whether a claim made by a workmen for\r\npayment of minimum wages is an\r\nindustrial dispute which is mentioned and\r\ncovered by the decision of the Hon’ble\r\nApex Court in the case of Dharappa v.\r\nBijapur Coop. Milk Producers Societies\r\nUnion Ltd. reported in (2007) 9 SCC 109?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3) Whether the order passed by the authority\r\nunder the Minimum Wages Act requires\r\ninterference?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4) What order?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. Answer to Point No.1: Whether the amendment\r\nmade to Section 70 of the Karnataka Co- </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">operative Societies Act, 1959 would impose an\r\nembargo on an authority under the Minimum\r\nWages Act to consider any claim for recovery of\r\nminimum wages and/or would make the\r\nremedies available under the Minimum Wages\r\nAct, 1948 read with the Payment of Wages Act,\r\n1936 inapplicable to a claim for minimum\r\nwages made by the workmen?</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.3.Section 70 of the Act deals with a dispute which\r\nare to be referred to the Registrar for a decision\r\nwhich includes in terms of Section 70(1)(c) of\r\nthe Act, dispute between the Society, any\r\nofficer, agent or employee. Any such dispute\r\nshall be referred to the Registrar for decision\r\nand no Civil, Labour or Revenue Court or <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Industrial Tribunal shall have jurisdiction to\r\nentertain any suit or other proceedings in\r\nrespect of such dispute.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.10.Thus, I am of the considered opinion that the\r\nsaid decisions would not be appliable in the\r\npresent case and would not come to the rescue\r\nof the petitioner. In the present case as afore\r\nobserved, the claim is for minimum wages in a\r\nscheduled employment, the minimum wages\r\nbeing notified by the Appropriate Government.\r\nIf the said payment is not made, then a claim\r\nfor recovery of the amount could be made\r\nunder the Payment of Wages Act, 1936.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.11.As such, I answer Point No.1 by holding that\r\nSection 70 of the Karnataka Co-operative\r\nSocieties Act, 1959 does not impose any\r\nembargo on an authority under the Minimum\r\nWages Act to consider any claim for recovery of\r\nminimum wages and as such, the said\r\nauthority could consider an application for\r\npayment of minimum wages, which if not paid,\r\ncould be recovered under the provisions of\r\nPayment of Wages Act, 1936.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Answer to Point No.2: Whether a claim made by\r\na workmen for payment of minimum wages is\r\nan industrial dispute which is mentioned and\r\ncovered by the decision of the Hon’ble Apex\r\nCourt in the case of Dharappa v. Bijapur Coop.\r\nMilk Producers Societies Union Ltd. reported in\r\n(2007) 9 SCC 109?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11.1.In answer to Point No.1, I have already held\r\nthat the dispute contemplated under Section 70\r\nof the Act is one contemplated under Industrial\r\nDisputes Act, 1947 and not as regards nonpayment of minimum wages. The minimum <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">wages, if not paid, would only give raise to a\r\nclaim for payment of minimum wages and not a\r\ndispute for adjudication. In Darappa’s case ,\r\nthe Hon’ble Apex Court was ceased of a dispute\r\nbetween the Co-operative Society and a\r\nworkmen arising out of an industrial dispute,\r\nwhich is not the case in the present matter. In\r\nfact, the industrial Disputes Act, 1947 does not\r\ncover a claim of minimum wages. A claim for\r\nminimum wages has to be made under the\r\nMinimum Wages Act, 1948.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11.2.Hence, I answer point No.2 by holding that the\r\nclaim made by a workmen for payment of\r\nminimum wages is not a dispute covered under\r\nSection 70 of Karnataka Co-operative Societies\r\nAct, 1959 nor is it covered by the decision by the\r\nHon’ble Apex Court in the Darappa’s</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. Answer to point No.3: Whether the order passed\r\nby the authority under the Minimum Wages Act\r\nrequires interference?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12.1.In view of my finding on Point No.1 and 2, there\r\nis no infirmity in the order passed by the\r\nauthority under the Minimum Wages Act, 1948\r\nrequiring interference.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12.2.When the matter was listed for pronouncement of\r\njudgment, both the counsel requested this Court\r\nnot to pronounce the judgment and they will try\r\nand resolve the matter amicably. Subsequent\r\nthereto, both the petitioner and respondents have\r\nfiled their respective memo of calculations which\r\nare at variance with each other.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12.3.Despite sufficient time having been granted, they\r\nhave been unable to arrive at any settlement and\r\nas such, requested this Court go ahead with the\r\npronouncement of judgment. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. Answer to point No.4: What Order?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>1) The Writ Petition is dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8b6d06c83a9df4a27be17d27c53c1672.JPG', 'eb162d7ffeffdb784c7e14463086df4e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-20', 1, '', '', '2023-02-17 14:50:50', '2023-02-20 03:21:59'),
(2698, 'PykvUfZDymcfFrzBaqgLBAT4p', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Conviction under Section 138 of Negotiable Instruments Act, 1881 cannot be questioned under Section 482 Cr.P.C when appeal remedy is available. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vuppalapati Satish Kumar Vs VTH Source Components Pvt. Ltd.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 991 of 2023 decided on 14 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Natarajan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This petition is filed by the petitioner-accused No.2\r\nunder Section 482 OF Cr.P.C for setting aside the\r\njudgment of conviction and sentence passed by the 27th\r\nAdditional Chief Metropolitan Magistrate, Bengaluru in\r\nC.C.No.22746/2017 dated 2.1.2023 for having convicted\r\npetitioner for the offence punishable under Section 138 of\r\nNegotiable Instruments Act, 1881 (hereinafter referred as\r\n\'NI Act\')</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n 2. The office raised the objection regarding\r\nmaintainability of this petition filed under section 482 of\r\nCr.P.C., as the petitioner being the accused convicted in\r\nthe trial court, requires to file appeal under section 374 of\r\nCr.P.C. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">6. Having heard the arguments and perused the\r\nrecords, it is an admitted fact that the accused was a\r\nconvicted accused by the trial court for the offence\r\npunishable under Section 138 of NI Act. The contention of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the learned senior counsel is that while convicting the\r\naccused No.2, who is only Managing Director of the\r\ncompany but the trial court acquitted the accused No.1\r\nwho is the Company. Therefore, there is an error\r\ncommitted by the trial court in acquitting the Company\r\nfrom the charges and convicting only the Managing\r\nDirector, which is against the principles laid down by the\r\nHon\'ble Supreme Court in various cases. Therefore, this\r\npetition is maintainable under section 482 of Cr.P.C.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Whereas, the present case on hand, the\r\npetitioner is challenging the conviction and sentence\r\npassed by the trial court by exercising the power under <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">section 255 of Cr.P.C. Therefore, the petitioner is required\r\nto file appeal under section 374 (2) of Cr.P.C before the\r\nSessions Judge, where the first appellate court required to\r\nre-appreciate evidence on record and pass the final\r\njudgment and thereafter the aggrieved parties can\r\napproach high court under section 397 of Cr.P.C, if any\r\nconcurrent finding of both the Court below. Here in this\r\nCourt, this Court cannot re-appreciate the evidence on\r\nrecord, both on facts and law, which is required to be dealt\r\nwith, by the appellate court in the appeal under Section\r\n374 of Cr.P.C. This Court cannot re-appreciate any\r\nevidence on record and give findings, it is only extra\r\nordinary power for quashing the proceedings, since the\r\nfirst appeal is nothing but continuation of original\r\nproceedings in appellate court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>If this petition filed under section 482 of Cr.P.C, is\r\nentertained, the respondent will be deprived of right of\r\nappeal before the appellate court and thereafter parties\r\ncan approach the High Court.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>It appears the accused are following these back door\r\ntactics in order to avoid the interim compensation going to\r\nbe imposed by the first appellate court under section 148\r\nof NI Act. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Therefore, I am of the view the petition filed\r\nunder section 482 of Cr.P.C is not maintainable. The office\r\nobjection is sustained.\r\n Hence, the petition is dismissed as not\r\nmaintainable. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7a8d5738056687d7fc09a2002a813fc1.JPG', 'ed14663e03531f72bd6b471930e0ef35.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-22', 1, '', '', '2023-02-19 18:07:53', '2023-02-22 03:22:25'),
(2699, 'ghFTp3zuvEj7yrYeQWUjZ51zx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'Karnataka High Court rejects the plea of teachers for enhancing age of superannuation.\' Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Patil Malligemadu Chandrashekhar and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 8888 of 2020 decided on 17 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Sunil Dutt Yadav.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The three batches of Writ Petitions involve\r\nadjudication of similar legal questions relating to\r\napplicability of the University Grants Commission\r\nRegulations (\'UGC Regulations\') as regards the age of\r\nsuperannuation and accordingly are taken up together and\r\ndisposed off by this common order.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. ANALYSIS:-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5.1 BATCH -</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\"Whether the Government Order dated\r\n15.10.2009 enhancing the age of\r\nsuperannuation to the Teaching Community of\r\nUniversities drawing UGC Scales from 60\r\nYears to 62 Years, while continuing the age of\r\nsuperannuation to other Teaching Community\r\nto be at 60 Years is valid in law?\"<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) The contention of petitioners that even those\r\nworking in Affiliated Colleges are to be treated on par with\r\nthe Teaching Community drawing UGC Scales cannot be\r\naccepted, as the Teaching Community of the Universities\r\ndrawing UGC Pay Scales form a distinct class of employees\r\nvis-à-vis other Teaching Community staff.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ix)(c) In light of such stipulation, it was held that\r\nthe State Government could not contend that they will not\r\nextend the benefit of enhancement of age of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">superannuation upto 65 Years even as regards the Teachers\r\nworking in Private Aided Colleges.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> (ix)(d) Accordingly, the enhanced age of\r\nsuperannuation of 65 Years was extended to the Teaching\r\nStaff of Private Aided Institutes as well, which was only in\r\nlight of Clause-26 of Statute 28 (College Code). Hence, no\r\ngeneral principle regarding the treatment on parity as\r\nregards Teachers in Government Institutions vis-à-vis those\r\nworking in Private Aided Institutions can be stated to have\r\nbeen laid down in R.S.Sohane (supra).</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n (x) In Jacob Thudipara (supra), the judgment\r\nwas passed by Apex Court relying on the decision in\r\nR.S.Sohane (supra) and it is relevant to note that the\r\ncase also arose from the State of Madhya Pradesh and\r\nrelates to identical factual matrix where staff in Private\r\nAided Educational Institution were claiming enhanced age of\r\nsuperannuation as was with respect to the Teaching Staff in\r\nGovernment Colleges.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Accordingly, as distinguished above, the Apex Court\r\nhas not laid down any general principle which can be relied\r\non by the petitioners.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(xi) Accordingly, the position is clear and it is for the\r\nState to take an appropriate decision as regards acceptance\r\nof the age of superannuation as provided for under the UGC\r\nScheme.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(xii) It is also necessary to note that the age of\r\nretirement of Teaching Staff in Government Institutions is\r\nadmittedly 60 Years. Rule 2528 of K.E.I. (Collegiate\r\nEducation) Rules, 2003 provides that the age of retirement\r\nfor employees in Private Educational Institutions receiving\r\naid from the State Government shall be the same as those\r\napplicable for corresponding category of employees in\r\nGovernment Educational Institutions. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">If that were to be so, the Teaching Staff in Aided\r\nPrivate Educational Institutions will not be entitled to claim\r\nthat the age of superannuation should be above 60 Years in\r\nlight of K.E.I. (Collegiate Education) Rules, 2003.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">5.2 BATCH - </span><span style=\"font-size: 12pt;\">II AND III</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">\"The common question that arises for\r\nconsideration is whether the petitioners are\r\nentitled for enhancement in age of\r\nsuperannuation to 65 years?\" </span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">(i) The judgment of Apex Court in (Dr.J.Vijayan)\r\n(supra), the Government of Kerala by a Government\r\nOrder dated 10.12.2010 had adopted and implemented the\r\nUGC Regulations 2010 and it was the grievance of the\r\npetitioners that despite such acceptance, the Government\r\nhad failed to comply with the condition of enhancement of\r\nthe retirement age. The petition came to be rejected and\r\nthe appeal filed was also dismissed. The petitioners had\r\nchallenged the said orders before the Apex Court. The Apex\r\nCourt while referring to the judgment in Jagdish Prasad </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Sharma (supra) concluded that there was no change in\r\nlaw after the judgment in Jagdish Prasad Sharma\r\n(supra).</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(vii) It is the contention of the petitioners that a\r\ncumulative reading of the letter of MHRD dated 02.11.2017\r\nand UGC Regulations dated 30.06.2010 read with letter of\r\nMHRD dated 31.12.2008, the policy of the Central\r\nGovernment is that the age of superannuation shall be 65  <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Years which is mandatory. The earlier direction of Central\r\nGovernment through MHRD letter dated 14.08.2012\r\naddressed to all the Educational Secretaries has at point\r\nNo.4 observed that the condition of enhancement of age of\r\nsuperannuation would be de-linked from the condition of\r\npayment of central share of 80% arrears to the State as\r\nextracted supra at para-4.4. Such direction of the\r\nGovernment is to be construed to be a direction under\r\nSection 20 of the UGC Act32 and binding upon UGC.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ix) The only subsequent communication of UGC\r\ndated 30.01.2018 clarifies that it is subject to the guidelines\r\nissued by the Ministry of Finance dated 13.01.2017 and also\r\nrefers to the communications of the Central Government\r\ndated 02.11.2017 and a combined reading will not have the\r\neffect of ignoring the communication of 14.08.2012 of\r\nMHRD which even otherwise is binding upon UGC as a\r\ndirection under Section 20 of the UGC Act. Accordingly,\r\nthe UGC Circular to the Vice Chancellors dated 30.01.2018\r\nas well as UGC\'c communication dated 31.01.2018\r\naddressed to Education Secretaries of all the States cannot\r\nbe construed as altering the earlier Government\r\nRegulations.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n (x) It must be noted that there is a difference\r\nbetween conditions of service which is within the sole\r\ndomain of the Government under Article 309 of the\r\nConstitution of India which is regulated by appropriate <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Legislature on one hand and the requirement of adherence\r\nof Minimum Standards in terms of Section 26(g) of the UGC\r\nAct, which falls within the domain of UGC and would be\r\nsubject to the directions of the Central Government under\r\nSection 20 of the UGC Act. The superannuation is a\r\ncondition of service and would fall within the ambit of\r\nArticle 309 of the Constitution of India till statutory\r\nprovision is made by the appropriate Legislature. Such\r\nRules would have statutory force. Wherever the age of\r\nsuperannuation is contained in either (a) KCSR insofar as\r\nemployees of the Government, (b) Provisions of Karnataka\r\nEducation Act, 1983 insofar as the employees of Aided and\r\nUnaided Institutions, (c) Acts of the University, Statutes of\r\nthe University, (d) Rules/Byelaws of Private Educational\r\nInstitutions which are not Aided, but affiliated to the\r\nUniversity where such Byelaws are framed under the\r\nauthority of the Universities Act/statutes, the same would\r\nprevail. Accordingly, the above would hold the field insofar\r\nas superannuation is concerned.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(xi) As regards maintenance of standards [Section\r\n26(g) of UGC Act], qualification that is required for any\r\nperson to be appointed to the Teaching Staff [Section 26(e)\r\nof UGC Act], the power is vested with the UGC to make\r\nRegulations consistent with Act and Rules.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> (xii) The aspect of prescribing qualifications fall within\r\nthe domain of maintenance of standards which has nothing\r\nto do with the aspect of superannuation that falls within\r\nArticle 309 of Constitution of India and operates in a\r\nseparate sphere.\r\n (xiii) The Apex Court in Professor (Dr.) Sreejith\r\nP.S. v. Dr. Rajasree M.S. & Ors33 while considering the\r\nappointment of Vice Chancellor, has held that the\r\nprescription regarding qualification for appointments under\r\nthe UGC Regulations would prevail over the diluted\r\nqualifications provided under the State Legislation. It is\r\nfurther held that as a subject “Education” is contained in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Concurrent List of the Seventh Schedule, the UGC\r\nRegulations enacted in exercise of power under Clause (e)\r\nand (g) of sub-section (1) of Section 26 of UGC Act as well\r\nas SPU Act of 1955 would be traceable to power under the\r\nentry “Education” in the Concurrent List and in case of\r\nconflict of both the Acts, in light principle of repugnancy\r\nunder Article 254 of the Constitution of India and under\r\nArticle 254 (1) of the Constitution of India, the Central Act\r\ni.e., the UGC Act would prevail. This judgment follows the\r\nsame line of cases including that of Kalyani Mathivanan\r\n(supra), Gambhirdan (supra) and State of West\r\nBengal Vs. Anindya Sundar Das & Ors.34 However, it\r\nmust be noted that all the cases referred to above are\r\nrelatable to qualification of appointment of Vice-Chancellor\r\nand such qualification no doubt relates to recruitment, but\r\nstill would fall outside the purview of Article 309 of the\r\nConstitution of India which deals with the conditions of\r\nService, which would include the age of superannuation.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(xiv) As already held, superannuation has noting to do\r\nwith qualification and being a condition of service would fall\r\nwithin the ambit of Article 309 of the Constitution of India\r\nand accordingly, the Rules/statutory provision under Article\r\n309 of the Constitution of India would prevail over the UGC\r\nRegulation that may fall under “Education\" in the\r\nConcurrent List.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n6. Accordingly, the Writ Petitions are dismissed\r\nwith the following directions :-\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i) Insofar as the petitioners who have\r\ncontinued to work by virtue of interim\r\norders granted by this Court, their\r\ncontinuance till date is to be treated as\r\ncontinuance on re-employment basis in\r\nterms of the applicable Rules, University\r\nStatutes and Government Orders as are\r\napplicable and are entitled to emoluments\r\non such re-employment terms and will not <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be entitled to remuneration paid to the\r\nregular employees.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>ii) The question of adjudication relating to\r\nre-employment after superannuation and\r\npassing direction as regards such aspect\r\ndoes not arise and is a matter to be\r\nadjudicated separately if there is any case\r\nof legally addressable grievance that may\r\narise post superannuation.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>iii) In all the cases dealt with, the continuance\r\ntill date by virtue of interim orders cannot\r\nbe treated to be a dispute relating to\r\nre-employment requiring passing of\r\ndirections.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\niv) After having attained the age of\r\nsuperannuation, it is an aspect of reemployment by the employer subject to\r\nfulfillment of conditions as are stipulated in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the applicable Rules/Government\r\nOrders/Regulations as the case may be. It\r\nis clarified that there cannot be automatic\r\nextension of tenure and the extension is on\r\nthe basis of conscious decision of the\r\nemployer in light of the applicable Rules.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '432d086f7f20a6ed601c39240376dae8.JPG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-22', 1, '', '', '2023-02-19 18:46:05', '2023-02-22 08:04:20'),
(2700, 'rFB9jsyXzIEPZSEAw836bcs3t', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Section 138. Once NBW is issued against accused, the complainant need NOT take any further steps till NBW is executed or returned. Complaint can NOT be dismissed for not taking steps. Karnataka High Court.', '<h4><b>J.Raju by Lrs vs F. Muktar Juuni.&nbsp;</b></h4><h4><b>Criminal Appeal 775 of 2020 decided on 1 April 2021.&nbsp;</b></h4><h4><b>Justice K. Natarajan.&nbsp;</b></h4><h4><b>&nbsp;This appeal is filed by the appellants who are the legal representatives of the complainant before the trial Court challenging the order of dismissal of the case for non-prosecution in C.C.No.746/2010 dated 24.12.2011 on the file of Prl. Civil Judge and J.M.F.C., Hosadurga, Chitradurga District.<br><br></b></h4><h4><b>4. The brief facts of the case is that, Raju filed a complaint before the trial Court under Section 200 of Cr.P.C., for the offence punishable under Section 138 of&nbsp; the Negotiable Instruments Act, 1881 (for short ‘N.I. Act’) against the respondent-accused alleging that the cheque issued by the accused was dishonored due to insufficient funds. In spite of issuance of legal notice, the respondent- accused has not replied or complied with the said notice. After taking cognizance, the trial Court issued summons to the accused and the presence was not able to secure. Therefore, non-bailable warrant has been ordered to&nbsp; secure the presence of the accused. But the same was returned unexecuted. Subsequently, the case was posted for taking steps on 26.11.2011. On 26.11.2011 and 24.12.2011, the complainant and his counsel remained absent and steps were not taken. Hence, the complaint came to be dismissed for default. Assailing the same, the legal representatives of the complainant filed a review petition before the Sessions Court, Chitradurga&nbsp; which&nbsp; came to be allowed and restored the case in the original file. Assailing the same, the respondent–accused approached this Court by filing Crl.P.No.8475/2018 and taken contention that the revision is maintainable against the dismissal of the complaint under Section 256 of Cr.P.C. Based upon the submission, the Co-ordinate Bench of this Court allowed the petition and set aside the order of Revisional Court with a liberty to approach the Court by filing an appeal. Accordingly, the appellants are before this Court.<br><br></b></h4><h4><b>8. The order sheet of the trial Court reveals that the original complainant filed a private complaint under Section 200 of Cr.P.C., for the offence punishable under Section 138 of N.I. Act against the accused for taking appropriate action. The cheque issued by the complainant was towards the legally dischargeable debt. The complainant himself has given sworn statement and got marked the documents and the trial Court took cognizance of the offence on 6.10.2016 and issued summons to the accused to be present before the Court on 19.11.2016. Subsequently, the summons was returned as unserved and the summons also issued through RPAD which was served and later, the complainant also filed an application along with P.F. and taken the summons to the accused through Azad Nagar Police Station, Davanagere and again on 19.11.2016, the summons was returned as&nbsp; accused refused to receive the same. Therefore, NBW was issued through the Circle Inspector of Police of Davanagere through Azad Nagar Police. That on 26.11.2011, the complainant was absent and his counsel was also absent. Case was adjourned for taking further steps on&nbsp; 24.12.2011. On 24.12.2011, again the&nbsp; complainant and&nbsp; his counsel were absent and later the trial Court has held that steps not taken and hence, complaint is dismissed for default.<br><br></b></h4><h4><b>9. By looking to the order sheet of the trial Court which appears that the trial Court has committed error in dismissing the complaint for the reason that&nbsp;<span style=\"background-color: rgb(255, 255, 0);\">once NBW has been issued by the competent Court to secure&nbsp; the&nbsp; presence of the accused through CPI, Davanagere as the accused refused to receive the summons issued by the Court and NBW was ordered to be returnable by 26.11.2011. The order sheet never reveals as to whether the warrant has been neither executed by the Police nor returned unexecuted.&nbsp;</span><span style=\"background-color: rgb(255, 255, 0);\">Such being the case, the question of taking further steps and dismissing the complaint for default does not arise.</span>&nbsp;As per Section 70(2) of Cr.P.C.,&nbsp; once the warrant has been issued, until the warrant is cancelled by the said Court and until execution of charge- sheet, it remains in force. For the convenience, the provisions of Section 70(1) and (2) reads of follows:</b></h4><h4 style=\"margin-left: 25px;\"><b>“70.<span style=\"white-space: pre;\">	</span>Form of warrant of arrest and duration:<br>(1)<span style=\"white-space: pre;\">	</span>Every warrant of arrest issued by a court under this Code shall be in writing,&nbsp; signed by the presiding officer of such court and shall bear the seal of the court.<br>(2)<span style=\"white-space: pre;\">	</span>Every such warrant shall remain in force until it is cancelled by the court which issued it, or until it is executed.”<br></b></h4><h4><b><br></b></h4><h4><b>10. On a bare reading of 70(2), which shows that every such warrant shall remain in force until it&nbsp; is&nbsp; cancelled by the Court which issued it, or until it is executed. Here in this case, warrant has been issued by&nbsp; the trial Court on 19.10.2011 to be returnable by 26.11.2011, but it was not at all executed, was not cancelled and the warrant is in force and also returned to the Court as unexecuted.&nbsp;<span style=\"background-color: rgb(255, 255, 0);\">Such being the case, the&nbsp; question of taking further steps is not required. Therefore, the trial Court ought to have received or called back the warrant and the reason for not executing the warrant shall have to be ascertained before dismissing the case for default.&nbsp; Therefore, I am of the view that the trial Court&nbsp; has committed an error in dismissing the complaint for default on the ground for not taking steps.&nbsp;</span>Therefore, the order under appeal requires to be set aside and requires to be sent back for disposal of the case on merits as per the provisions of law. Hence, I pass the following:<br>Criminal Appeal is allowed.<br>The impugned order of dismissal of the complaint for default dated 24.12.2011 is hereby set aside and the complaint has to be restored to its file.<br>Both the parties shall have to appear before the trial Court on 25.05.2021 without expecting any further notice.<br>Office is directed to send a copy of this order to the trial Court and the trial Court shall dispose of the matter as early as possible as it is an oldest case.</b></h4>', '34bb3e56bd02625375a21f2893a5bb60.jpeg', '2efd45090f70b6761017b2406051e73f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-20', 1, '', '', '2023-02-20 11:25:02', '2023-02-20 11:25:02');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2702, 'QeUhepjU2M04pql2ao3hUfxcs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Investigation of non-cognizable offences. Mere endorsement by the Magistrate \'permitted\' on the requisition cannot be construed as order under Section 155(2) of Cr.P.C. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>C.N. Dharanish VS State and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 4302 of 2017 decided on 1 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b>2. Crl.P.No.4302 is filed challenging the proceedings in\r\nC.C.No.24765/2015 on the file of XLiV ACMM, Bengaluru. The\r\npolice after investigation submitted the charge sheet for the\r\noffences punishable under Sections 341, 506, 509 and 354 of\r\nIPC, alleging that the petitioner/accused wrongfully restrained\r\nthe principal, and on 10.04.2014, petitioner/accused forcibly <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">entered the principal\'s room and wrongfully restrained her, and\r\noutraged her modesty and abused her in filthy language, and\r\nthreatened her with dire consequence.</span></b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><o:p>5. A perusal of charge sheet submitted by the police\r\nafter investigation in both the proceedings indicates that the\r\ndispute between the parties arises out of the payment of school\r\nfees and resultantly, the alleged incident has taken place which </o:p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">has been given criminal texture, so as to circumvent each other\r\nfrom making claims against each other. The offences under\r\nSections 504 and 506 are cognizable, and the police before\r\nregistering the FIR were required to obtain an order under\r\nsection 155(2) of Cr.P.C. The FIR registered by the police along\r\nwith the informant indicates that the learned Magistrate has\r\nendorsed \'permitted\' on the requisition. The word \'permitted\' is\r\nnot an order under Section 155(2) of Cr.P.C as held by the Coordinate Bench of this Court in the case of VAGGEPPA\r\nGURULINGA JANGALIGI Vs. THE STATE OF KARNATAKA. Hence,\r\nthe registration of FIR without obtaining the valid order as\r\nspecified under Section 155(2) of Cr.P.C., culminating in filing\r\ncharge sheet stands vitiated.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. In view of the preceding analysis, I am of the\r\nconsidered view that the dispute between parties is with regard\r\nto payment of school fees and resultantly, incident has taken\r\nplace with regard to the said payment of fees, however, given a\r\ncriminal texture, to falsely implicate each other. Hence,\r\ncontinuation of the criminal proceedings will be an abuse of\r\nprocess of law, since the probability of conviction of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">accused in these petitions is remote and bleak.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. Petitions are allowed. </b></p>', '7698aec50b8c5fb1d74c0705e8ded6a5.jpeg', '14d5cb277b66e0101f8514a57d259fe8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-21', 1, '', '', '2023-02-20 14:39:55', '2023-02-21 03:25:38'),
(2704, 'pp6wXtge4obd16SPKqoBpcEYE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Adopted son becomes Coparcner in the adopted family after severing all ties with his natural family. Supreme Court.  ', '<p class=\"MsoNormal\" style=\"margin-bottom: 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 10pt; font-family: Verdana, sans-serif;\">Basavarajappa v. Gurubasamma</span><span style=\"font-size: 10pt; font-family: Verdana, sans-serif;\">, (2005) 12 SCC 290 : 2005 SCC OnLine SC 203</span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"><o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\">11.</span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"> We may\r\nstraightaway say that the High Court as well as the first appellate court erred\r\nin holding that the adoption of the appellant did not have the effect of\r\ndivesting Narasappa of the properties to the extent of half share. The\r\nproperties held by Narasappa were admittedly ancestral. On adoption, the\r\nadoptee gets transplanted in the family in which he is adopted with the same\r\nrights as that of a natural-born son. The legal effect of giving a child in\r\nadoption is to transfer the child from the family of his birth to the family of\r\nhis adoption. He severs all his ties with the family from which he is taken in\r\nadoption. Interpreting Section 12 and sub-section (<i>vi</i>) of Section 11,\r\nthis Court in <i>Sitabai</i> v. <i>Ramchandra</i> [(1969) 2\r\nSCC 544] held that the adoptee ceases to have any ties with the family of his\r\nbirth. Correspondingly, these ties are automatically replaced by those created\r\nby the adoption in the adopted family. The adopted child becomes a coparcener\r\nin the joint Hindu family property. It was observed: (SCC pp. 549-50, para 5)<o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"><b>“<i>5. It is clear on\r\na reading of the main part of Section 12 and sub-section (vi) of Section 11\r\nthat the effect of adoption under the Act is that it brings about severance of\r\nall ties of the child given in adoption in the family of his or her birth. The\r\nchild altogether ceases to have any ties with the family of his birth.\r\nCorrespondingly, these very ties are automatically replaced by those created by\r\nthe adoption in the adoptive family. The legal effect of giving the child in adoption\r\nmust therefore be to transfer the child from the family of its birth to the\r\nfamily of its adoption</i>. The result is, as mentioned in Section 14(1) namely\r\nwhere a wife is living, adoption by the husband results in the adoption of the\r\nchild by both these spouses; the child is not only the child of the adoptive\r\nfather but also of the adoptive mother. In case of there being two wives, the\r\nchild becomes the adoptive child of the seniormost wife in marriage, the junior\r\nwife becoming the stepmother of the adopted child. Even when a widower or a\r\nbachelor adopts a child, and he gets married subsequent to the adoption, his\r\nwife becomes the stepmother of the adopted child. When a widow or an unmarried\r\nwoman adopts a child, any husband she marries subsequent to adoption becomes\r\nthe stepfather of the adopted child. The scheme of Sections 11 and 12,\r\ntherefore, is that in the case of adoption by a widow the adopted child becomes\r\nabsorbed in the adoptive family to which the widow belonged. In other words the\r\nchild adopted is tied with the relationship of sonship with the deceased\r\nhusband of the widow. The other collateral relations of the husband would be\r\nconnected with the child through that deceased husband of the widow. For\r\ninstance, the husband\'s brother would necessarily be the uncle of the adopted\r\nchild. The daughter of the adoptive mother (and father) would necessarily be\r\nthe sister of the adopted son, and in this way, the adopted son would become a\r\nmember of the widow\'s family, with the ties of relationship with the deceased\r\nhusband of the widow as his adoptive father. It is true that Section 14 of the\r\nAct does not expressly state that the child adopted by the widow becomes the\r\nadopted son of the husband of the widow. But it is a necessary implication of\r\nSections 12 and 14 of the Act that a son adopted by the widow becomes a son not\r\nonly of the widow but also of the deceased husband. It is for this reason that\r\nwe find in sub-section (4) of Section 14 a provision that where a widow adopts\r\na child and subsequently marries a husband, the husband becomes the\r\n‘stepfather’ of the adopted child. <i>The true effect and interpretation\r\nof Sections 11 and 12 of Act 78 of 1956 therefore is that when either of the\r\nspouses adopts a child, all the ties of the child in the family of his or her\r\nbirth become completely severed and these are all replaced by those created by\r\nthe adoption in the adoptive family</i>. In other words the result of adoption\r\nby either spouse is that the adoptive child becomes the child of both the\r\nspouses. This view is borne out by the decision of the Bombay High Court\r\nin <i>Ankush Narayan Shingate</i> v. <i>Janabai Rama Sawat</i> [(1965)\r\n67 Bom LR 864] . <i>It follows that in the present case Plaintiff 2 Suresh\r\nChandra, when he was adopted by Bhagirath\'s widow, became the adopted son of\r\nboth the widow and her deceased husband Bhagirath and, therefore, became a\r\ncoparcener with Dulichand in the joint family properties</i>. After the death\r\nof Dulichand, Plaintiff 2 became the sole surviving coparcener and was entitled\r\nto the possession of all joint family properties. The Additional District Judge\r\nwas, therefore, right in granting a decree in favour of Plaintiff 2 declaring\r\nhis title to the agricultural lands in the Village Palasia and half share of\r\nthe house situated in the village.”<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 10pt; font-family: Verdana, sans-serif;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\">12.</span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"> The view taken\r\nby the first appellate court and the High Court that Narasappa even after the\r\nadoption continued to be the absolute owner of the property being the sole\r\nsurviving coparcener is incorrect. On adoption, the appellant became a\r\ncoparcener with Narasappa and entitled to his coparcenary interest in the\r\nancestral properties held by Narasappa. The appellant became entitled to half\r\nshare in the joint Hindu family of his father as a coparcener like a natural\r\nson. The view which we are taking is in consonance with the view taken by this\r\nCourt in <i>Sitabai case</i> [(1969) 2 SCC 544] in which it was held\r\nthat after considering the scheme of Sections 11, 12 and 14 of the Adoption Act\r\nthat on adoption the adopted child would become a coparcener in the adopted family\r\nafter severing all his ties with the family from which he has been adopted.</span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"><o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\">13.</span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"> As the\r\nappellant had been validly adopted, he became entitled to half share of the\r\nancestral properties as a coparcener. On the death of Narasappa in the year\r\n1982, succession opened. Notional partition under Section 6 of the Act took\r\nplace between Narasappa and his adopted son of the joint Hindu family properties.\r\nFather and son became entitled to half share each. The half share of the\r\nproperty which fell to the share of Narasappa has to be treated as\r\nself-acquired property in terms of Section 6 of the Act and liable to be\r\ndivided in equal shares amongst the adopted son and the daughters i.e. each one\r\nof them would get 1/9th share out of the half property which had fallen to the\r\nshare of Narasappa which would be equivalent to 1/18th share of the entire\r\nproperty held by Narasappa. In our opinion, the trial court had taken the\r\ncorrect view of the matter.<o:p></o:p></span></b></p><p>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n</p><p class=\"MsoNormal\"><o:p><b> </b></o:p></p>', '8d9c50914c269d77b618f112fb7a3844.jpeg', 'e5742739160125717c83ae8460f086f7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-21', 1, '', '', '2023-02-20 18:07:00', '2023-02-21 06:25:05'),
(2705, 'vLnUxPn8CkRIo4CuGQkvoANx4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Once a person is adopted, he cannot not have a right in the coparcenary property of the family of his natural birth. Bombay High Court. ', '<p class=\"MsoNormal\" style=\"margin-bottom: 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><i><span style=\"font-size: 10pt; font-family: Verdana, sans-serif;\">Devgonda Raygonda Patil v. Shamgonda\r\nRaygonda Patil</span></i><span style=\"font-size: 10pt; font-family: Verdana, sans-serif;\">, 1991 SCC OnLine Bom 286 : 1991 Mah LJ\r\n1470 : (1991) 3 Bom CR 165 : AIR 1992 Bom 189 : (1991) 93 Bom LR 817 : (1992) 1\r\nAP LJ (DNC 2) 46 at page 1476</span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"><o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\">13.</span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"> Section 12\r\nspeaks about effects of adoption. It has three provisos which are exceptions to\r\nthe general rule contained in main part. The effect of adoption is that the\r\nadopted child is to be deemed to be the child of his or her adoptive father or\r\nmother for all purposes with effect from the date of the adoption and from such\r\ndate all the ties of the child in the family of his or her birth shall be\r\ndeemed to have been severed and replaced by those created by the adoption in\r\nthe adoptive family. Proviso (b) says that the property which is vested in the\r\nadopted child before adoption shall continue to vest in the adoptee, subject of\r\ncourse, to any obligation attaching to the ownership of such property including\r\nthe obligation of the adoptee to maintain relatives in the family of his or her\r\nbirth. This proviso therefore clearly says that the adopted child shall take\r\nfrom the family of his birth to the family of adoption only that property which\r\nwas vested in him before adoption and no other. If the property which was not\r\nvested in him as absolute owner thereof, then the said property is not taken\r\naway by him from the family of his birth to the adoptive family.<o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: normal; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 10pt; font-family: Verdana, sans-serif;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: 18pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\">14.</span><span style=\"font-size: 12pt; font-family: \"Open Sans\", sans-serif;\"> Section 12 and\r\nparticularly proviso (c) to it came for consideration before the Division Bench\r\nof this Court and also before the Supreme Court. The Division Bench of our\r\nCourt in AIR 1981 Bom. p. 109, <i>V.K. Nalavade</i> v. <i>Ananda\r\nG. Chavan</i>, considered the meaning of word “vest”. In the said case one\r\nGovinda died in 1929 as a member of the joint family of himself and his brother\r\nDhondi. The family owned various properties which were ancestral. Dhondi had 2\r\nsons. On 1-4-1957 Govinda\'s widow adopted Ananda, one of the sons of Dhondi.\r\nThe question arose whether Ananda could challenge certain post-adoption\r\nalienations made by Dhondi on the basis that he was coparcener of equal status\r\nin place of his adoptive father Govinda on 1-4-1957 or whether he had no such\r\nright because his adoption could not have the effect of divesting Dhondi of the\r\nproperty held by him since 1929 in view of the proviso (c) of section 12. The\r\nDivision Bench held that the adoptee has equal status in the family of his\r\nadoptive father and he could challenge the alienations effected after the\r\nadoption. The property left with Dhondi on the death of Govinda in 1929,\r\ncontinued to be the joint family property, notwithstanding his being the sole\r\nsurviving coparcener. The title of Dhondi was defeasible. There was no question\r\nof property being vested in Dhondi or his being divested by Ananda in 1957 on\r\nadoption really arose. Ananda succeeds to the interest of his father as\r\ncoparcener by sheer force of this legal provision as per rules of Survivorship.\r\nThis Court observed the word “vest” is a word of variable import, its precise\r\nmeaning depending on the context. Ownership of the joint family property vests\r\nin the joint family while management thereof alone vests in the Manager. No one\r\nmember, including even a sole surviving coparcener, can ever claim to be the\r\nowner of the entire or any specific share in a specific property, till the\r\npartition takes place, the quantum of the share and the extent of the property\r\nfalling to it till then, being in a perpetual state of fluctuation.” The\r\nDivision Bench further held that section 12 consists of two points. The second\r\npart specifically deals with the ties forged and snapped on adoption and their\r\neffect on the right in the property acquired during the subsistence of such\r\nties. It is observed “The second part takes notice of the inevitable\r\nretrospective effect of the severance and replacement of the “ties” on adoption\r\nand consequential divesting of the adopted son and others of the properties\r\ninherited as the nearest available heir during the subsistence of the\r\npre-adoption ties, consistent with the fiction of his being born in adoptive\r\nfamily. While devolution of the property on the member of the joint family\r\nentering therein by birth or adoption, under the rule of survivorship becomes\r\neffective only on partition, the succession to the same under rule of\r\ninheritance by the nearest available heir becomes effective immediately on the\r\ndeath of the holder, when succession opens. Second part, however, makes such\r\ndivesting ineffective firstly by eliminating all pervasive “for all purposes”\r\nfiction of the first part from this part, and secondly by making the\r\npost-adoption ties effective from the date of adoption; and thirdly, by\r\nengrafting an exception to ordinary retrospective effect of severance and\r\nreplacement of “ties” by enacting Cls. (b) and (c) in the proviso and expressly\r\npreventing the divesting of the child and other persons of the properties\r\ninherited by them, as nearest heir, during the subsistence of the pre-adoption\r\nties. Merely making adoption effective from the date of adoption could not have\r\nhad this effect. Arguably such date could be taken as the date from which,\r\nrights acquired under the ties newly forged could be enforced with\r\nretrospective effect. The “for all purposes” fiction of the first part also\r\ncould have operated to produce the opposite result. Clauses (b) and (c) of the,\r\nproviso thus form integral part of the second part of the section which is\r\naimed at preventing the adoption ties from having any retrospective effect on\r\nthe “properties vested”. In my view section 30 of the Hindu Succession Act\r\nsupports the view that coparcenary property is not vested in the coparcener.\r\nThe legislature therefore included section 30 with a view to enable a\r\ncoparcener to dispose of his interest in the coparcenary property by Will or\r\nother testamentary disposition. But for this enabling provision, that was not\r\npossible.<o:p></o:p></span></b></p><p>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n</p><p class=\"MsoNormal\"><o:p><b> </b></o:p></p>', '22fe98a0d91e019e8ba1cdc19096777c.jpeg', 'f730533c7c4e2b9751dbe56f3811bd63.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-21', 1, '', '', '2023-02-20 18:23:46', '2023-02-21 13:02:03'),
(2709, 'JDCpEygujoFpMJPT1WzRKsPbL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 125. Delay. Deserted wife bearing patiently for a few years, hoping that her husband would take her back, would not by itself disentitle her from claiming maintenance. Karnataka High Court.', '<h4><b>Kamala and another vs Satisha K.</b></h4><h4><b>Revision Petition Family Court 61 of 2016 decided on 7 April 2021.</b></h4><h4><b>Justice H.B. Prabhakara Sastry.&nbsp;</b></h4><h4><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\"><b><br></b></span></h4><h4><b><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\">The present petitioners are also the petitioners in Criminal Misc.No.398/2013, on the file of the learned Principal Judge, Family Court at Tumkur which was filed by them against the present respondent under Section 125 of the Code of Criminal Procedure, 1973, praying for maintenance at the rate of Rs. 10,000/- per month to each of them from the respondent.</span><br></b></h4><h4><b><br></b></h4><h4><b>The Family Court by its impugned judgment dated 04-02-2016, partly allowed the petition, wherein it dismissed the petition of petitioner No.1- wife and partly allowed the petition&nbsp; of petitioner No.2 – son and the respondent – husband was directed to pay maintenance to the petitioner No.2 at the rate of Rs. 2,000/- per month. Being not satisfied with the said judgment, the petitioners in the Family Court have preferred this revision petition, wherein the petitioner No.1 has sought for allowing her petition as prayed and petitioner No.2 has prayed for enhancement of maintenance ordered in his favour and for an order as prayed in his petition.<br></b></h4><h4><b><br></b></h4><h4><b>12.....The learned Amicus Curiae for respondent further submitted that, an inordinate delay of five years in filing the petition under Section 125 of the Cr.P.C. and not producing corroborative materials or evidence to show the alleged ill- treatment meted upon the petitioners and not proving the regular or fixed income of the respondent in the Family Court has led the Family Court to pass the impugned judgment, dismissing the petition of petitioner No.1, as such, the same does not warrant interference at the hands of this Court.<br></b></h4><h4><b><br></b></h4><h4><b>17...........Thus, the said un-denied evidence shows that, the petitioners had reasons for living away and separately from the respondent and they were unable to maintain by themselves. The&nbsp; Hon’ble&nbsp; Apex Court in of Bhuwan Mohan Singh Vs. Meena reported in MANU/SC/0605/2014. was pleased to observe in para-3 of its judgment as follows:-</b></h4><h4 style=\"margin-left: 25px;\"><b>“3.... The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created where under she is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact, it is&nbsp; the&nbsp; sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is&nbsp; an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.”</b></h4><h4><b><br></b></h4><h4><b>However, the Family Court only for the reason that, according to the petitioners, the petition is said to have been filed about five years after she started living separately from her husband, presumed on its own that, if she could able to maintain herself for about five years, she is able to maintain herself in future also. As such, since she has approached the Court belatedly and has maintained herself for such a long period, she is not entitled for maintenance. The said reasoning given by the Family Court while rejecting the petition of the petitioner No.1 is not convincing and does not fit in the circumstances of the case.&nbsp;<span style=\"background-color: rgb(255, 255, 0);\">Merely because a deserted wife bears patiently for sometime, may be, for a few years, hoping that her husband would take her back, would not by itself disentitle her from claiming maintenance.</span>&nbsp;Even in the instant case it is nobody\'s case that she had any source of income or was self-sufficient in maintaining herself and her son. On the other hand, she has stated that having no other way out she had to continue to stay with her parents. Merely because her parents were taking care&nbsp; of their daughter who was deserted by her husband (son-in-law), by that itself, it cannot be inferred that, the deserted wife could able to maintain herself. Thus, the reasoning given by the&nbsp; Family Court in rejecting the petition of petitioner No.1 is not convincing and is not sound, but it has to be necessarily held that, it is a perverse finding. As such, the said finding deserves to be set aside and reversed to be held that, the wife is entitled for maintenance.<br></b></h4><h4><b><br></b></h4><h4><b>ORDER<br>[i] The revision petition of the petitioners is allowed in part;<br></b></h4><h4><b><br></b></h4><h4><b>[ii] The judgment dated 04-02-2016 passed by the learned Principal Judge, Family Court at Tumkur, in C.Misc.No.398/2013, dismissing the petition of the first petitioner, is set aside and allowing the petition of petitioner No.2 in part, is modified;</b></h4>', '7e8dedbe16aea67e7ba524911b20e5be.JPG', '944ec68b3561517a8cade1a2808745c8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-21', 1, '', '', '2023-02-21 15:35:09', '2023-02-21 15:35:09'),
(2706, 'I1jO8Q2QlrU3eY5S3weTRqXy0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Adoptions and Maintenance Act does not adoption of a lunatic. Bombay High Court. ', '<p class=\"MsoNormal\" style=\"margin-bottom:0cm;line-height:normal\"><b><i><span style=\"font-size: 10pt; font-family: Verdana, sans-serif; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\">Devgonda Raygonda Patil v.\r\nShamgonda Raygonda Patil</span></i><span style=\"font-size: 10pt; font-family: Verdana, sans-serif; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\">, 1991 SCC OnLine Bom 286 : 1991 Mah LJ 1470 : (1991) 3 Bom CR 165 : AIR\r\n1992 Bom 189 : (1991) 93 Bom LR 817 : (1992) 1 AP LJ (DNC 2) 46&nbsp;at page\r\n1472</span><span style=\"font-size:12.0pt;font-family:&quot;Times New Roman&quot;,serif;\r\nmso-fareast-font-family:&quot;Times New Roman&quot;;mso-fareast-language:EN-GB\"><o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: normal; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 10.5pt; font-family: &quot;Open Sans&quot;, sans-serif;\">&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: normal; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><span style=\"font-size: 10.5pt; font-family: &quot;Open Sans&quot;, sans-serif;\">4.</span><span style=\"font-size: 10.5pt; font-family: &quot;Open Sans&quot;, sans-serif;\">&nbsp;Mr. Ingale, the\r\nlearned Advocate appearing on behalf of the Appellant-plaintiff has very\r\nvehemently submitted that adoption of Devgonda on 8th October 1959 was invalid\r\nand illegal and in any case it cannot be considered as valid because it was\r\neffected with a view to deprive Devgonda from getting share in the family of\r\nhis birth. In support of this submission he raised following contentions: (1)\r\nDevgonda was lunatic and therefore he could not have been adopted. Further\r\naccording to him the finding of the Court below that Devgonda was not lunatic\r\nwas not correct. In my view, assuming that Devgonda was lunatic on the date of\r\nadoption, it cannot be said that the adoption was invalid on that count.\r\nSection 6 of Hindu Adoptions and Maintenance Act speaks about the conditions\r\nfor valid adoption. The relevant is section 6(3) which is as follows.<o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: normal; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><span style=\"font-size: 10.5pt; font-family: &quot;Open Sans&quot;, sans-serif;\"><b>“The person adopted\r\nis capable of being taken in adoption.”<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: normal; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><span style=\"font-size: 10.5pt; font-family: &quot;Open Sans&quot;, sans-serif;\"><b>Section 10 of the\r\nsaid Act mentions the persons who may be adopted or who are capable of being\r\ntaken in adoption and states as follows:—<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: normal; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><i><span style=\"font-size: 10.5pt; font-family: &quot;Open Sans&quot;, sans-serif;\">Section 10:</span></i><span style=\"font-size: 10.5pt; font-family: &quot;Open Sans&quot;, sans-serif;\"><o:p></o:p></span></b></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: normal; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><span style=\"font-size: 10.5pt; font-family: &quot;Open Sans&quot;, sans-serif;\"><b>No person shall be\r\ncapable, of being taken in adoption unless the following conditions are\r\nfulfilled, namely—<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: normal; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><span style=\"font-size: 10.5pt; font-family: &quot;Open Sans&quot;, sans-serif;\"><b>i) he or she is a\r\nHindu<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: normal; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><span style=\"font-size: 10.5pt; font-family: &quot;Open Sans&quot;, sans-serif;\"><b>ii) he or she has not\r\nalready been adopted;<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: normal; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><span style=\"font-size: 10.5pt; font-family: &quot;Open Sans&quot;, sans-serif;\"><b>iii) he or she has\r\nnot been married, unless there is a custom or usage applicable to the parties\r\nwhich permits persons who are married being taken in adoption;<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: normal; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><span style=\"font-size: 10.5pt; font-family: &quot;Open Sans&quot;, sans-serif;\"><b>iv) he or she has not\r\ncompleted the age of fifteen years, unless there is a custom of usage\r\napplicable to the parties which permits persons who have completed the age of\r\nfifteen years being taken in adoption.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 2pt 0cm 0cm; text-align: justify; line-height: normal; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><span style=\"font-size: 10.5pt; font-family: &quot;Open Sans&quot;, sans-serif;\"><b>Therefore, this\r\nsection 6 does not say that a lunatic person cannot be adopted. There is no\r\nsuch incapacity. Therefore, it is not possible for me to accept the submission\r\nin this respect.<o:p></o:p></b></span></p><p>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n</p><p class=\"MsoNormal\"><o:p><b>&nbsp;</b></o:p></p>', 'a60979fe670166bffe5bca0374caa5b6.jpg', '62c3e9df275bfc6695d3caf1ecb9bcb6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-20', 0, '', '', '2023-02-20 18:27:40', '2023-02-20 12:57:45'),
(2708, 'jLd4Lidz1LZbSMbqMhr3wsa68', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. Dishonour of cheque issued by outgoing/retired partner does NOT bind the partnership firm or other partners. Karnataka High Court. ', '<p><b>M/s. Conserve Ready Misx Concrete and another vs M/s. Subh Laabh Minerals&nbsp;</b></p><p><b>Criminal Petition 102099 of 2021 decided on 16 December 2021</b></p><p><b>Justice M.G. Uma.&nbsp;</b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2. Petitioners/accused Nos.1 &amp; 2 in\r\nC.C.No.2015/2019 pending on the file of the Principal\r\nCivil Judge and JMFC Court Hosapete (“the Trial\r\nCourt” for short), for the offences punishable under\r\nSection 138 of the Negotiable Instruments Act, 1881\r\n(“NI Act” for short) are before this Court seeking to\r\nquash the criminal proceedings initiated against them.</b><br></p><p><b>\r\n3. Brief facts of the case as stated in the\r\ncomplaint are that, the respondent herein as\r\ncomplainant filed the primate complainant in\r\nPCR.No.321/2019 before the Trial Court against\r\naccused Nos.1 to 3 for the offence punishable under\r\nSections 138 and 142 of NI Act. It is the contention of\r\nthe complainant before the Trial Court that, the\r\ncomplainant is a partnership firm having on&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">manufacturing industry and accused No.1 is also a\r\npartnership firm having accused Nos.2 and 3 who are\r\nits partners. Accused No.1 is involved in the business\r\nof Ready Mix Concrete, approached the complainant\r\nfor supply of Ready Mix Concrete. The complainant\r\nagreed to supply the same as and when the order is\r\nplaced by the accused. Accordingly as per the order\r\ndated 06.02.2018, the complainant had supplied 1000\r\nmts., of concrete and requested the accused to make\r\npayment. It is stated that, accused Nos.2 given\r\ncheques in question singed by accused No.3 towards\r\nrepayment of the amount that was due. Two cheques\r\nbearing Nos.164965 and 164963 dated 04.05.2019\r\nfor Rs.9,13,958/- and Rs.1,12,737/- respectively\r\nwere issued. The said cheques on presentation were\r\ndishonored with an endorsement as ‘account blocked’\r\nand ‘drawer’s signature not as per mandate’. When\r\nthe legal notice was issued by the complainant\r\ndemanding for payment of the cheques amount, the\r\naccused have not repaid the cheques amount and&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">thereby they committed the offence punishable under\r\nSection 138 of NI Act. Accordingly, the complainant\r\nrequested the Trial Court to take cognizance of the\r\noffence and to initiate legal action against them.\r\nAccordingly the Trial Court took cognizance and\r\ncriminal case in C.C.No.2015/2019 was registered\r\nagainst accused Nos.1 to 3 for the above stated\r\noffence.</span></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p><b>10. In the light of rival contentions of the\r\nparties, the point that would arise for consideration of\r\nthis Court is as follows:</b></p><p><b>\r\n“Whether the impugned order dated\r\n16.10.2019 passed by the learned Principal\r\nCivil Judge and JMFC, Hosapete in\r\nPCR.No.321/ 2019 initiating criminal\r\nproceedings against the petitioners in\r\nC.C.No.2015/ 2019 ad consequently the criminal proceedings is liable to be\r\nquashed under Section 482 of Cr.P.C?”</b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12. Annexure-A is the private complaint filed\r\nby the complaint against accused Nos.1 to 3 alleging\r\ncommission of the offence punishable under Section\r\n138 and 142 of the NI Act. It is the specific contention\r\nof the complainant that, towards the legally\r\nrecoverable debt, accused Nos.3 issued two cheques\r\nreferred to above, which were came to be dishonored\r\nas ‘account blocked’ and ‘drawers signature not as per\r\nmandate’. Even after issuance of the legal notice\r\ncalling upon accused Nos.1 to 3 to pay the cheques\r\namount, the cheques amount was not paid and\r\ntherefore all the accused are liable to be prosecuted\r\nfor the offences punishable under Section 138 of NI\r\nAct.</span>&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p><b>19. These decisions relied on by the learned\r\ncounsel for the petitioners makes the position of law\r\nvery clear. When accused No.3 was not the partner of\r\naccused No.1 Firm as on the date of issuance of the\r\ncheques in question and when the cheques in\r\nquestion were dishonored not for want of sufficient\r\nfund but for the reason that ‘account blocked’ and\r\n‘drawer signature not as per mandate’. Accused No.1\r\ncannot be held responsible for the offence under\r\nsection 138 of NI Act. Similarly accused No.2 is not a&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">signatory to the cheques in question and therefore,\r\nhe also cannot be held responsible to answer the\r\ncharge for the offence punishable under Section 138\r\nof NI Act. Hence, I am of the opinion that, the\r\ncriminal proceedings initiated against the petitioners\r\nis liable to be quashed. Hence, I answer the above\r\npoint in the ‘affirmative’ and proceed to pass the\r\nfollowing</span></b></p><p><b>: ORDER :</b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>The petition is hereby allowed.</b></span></p>', '496b3182c68fdf1f84613222f05f504d.JPG', '8affe50187ecd8947e7febb90a9293e3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-20', 1, '', '', '2023-02-20 18:42:20', '2023-02-20 18:42:20');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2719, 'Ul11rUyBi6KzLsSCGm1GVrKA0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Sections 82 and 83. Even an agreement holder can challenge the attachment on the ground that he has an interest in the property provided the agreement is bonafide and not fraudulent. Karnataka High Court.', '<h4>Nithya Shambhavananda@R.Narayanan vs State of Karnataka.</h4><h4>Writ Petition 10076 of 2020 decided on 9 April 2021.</h4><h4>Justice Suraj Govindaraj</h4><h4>1. The petitioner is before this Court seeking for certiorari to stay the order dated 5.6.2020 passed in S.C.No.86/2014 by the III Addl. Sessions Judge, Ramanagara ordering the attachment of the petitioner’s property bearing Survey No.251, Heggadegere village, Bidadi Hobli, Ramanagara Taluk, Bangalore Rural District under Section 83 of the Code of Criminal procedure (Cr.P.C.), confirmed by order dated 29.06.2020 on an application filed by the petitioner under Section 84 of Cr.P.C.<br></h4><h4>2.2. The petitioner allegedly owns and possesses several immovable properties that are situated across the State of Karnataka and Tamil Nadu. The petitioner is stated to be involved in philanthropic activities such as providing skill training and employment for the underprivileged, nurturing the educational and social needs, setting up Goshala, distribution of milk and other dairy products free of cost to children and members of economically weaker sections and deserving sections of the society, etc.<br></h4><h4>2.3.<span style=\"white-space: pre;\">	</span>It is contended that one such Goshala Housing more than 300 cows is set up by the petitioner in immovable bearing in Sy.No.251, Heggadegere village, Bidadi Hobli, Ramanagara Taluk, Bangalore Rural District.<br></h4><h4>2.4.<span style=\"white-space: pre;\">	</span>In S.C. No. 86/2014, which is pending on the file of the III Addl. Sessions Judge, Ramanagara, the said Judge by way of his order dated 5.6.2020 passed under Section 83 of Cr.P.C. is alleged to have called upon the Deputy Commissioner, Ramanagara District to attach the property bearing Sy.No.251, Heggadegere village, Bidadi Hobli, Ramanagara Taluk, Bangalore Rural District, on the ground that the said property was belonging to one Sheelam Gopal Reddy.<br></h4><h4>2.5.<span style=\"white-space: pre;\">	</span>Sheelam Gopal Reddy is accused No.2 in the said case, who had remained absent despite issuance of court notice and order of proclamation against him for the purpose of securing his presence in the said case despite the prosecution being fully aware that the attached property belongs to the petitioner.<br></h4><h4>2.6.<span style=\"white-space: pre;\">	</span>It is contended that the aforesaid property came to be vested in the petitioner vide a registered agreement of sale dated 27.6.2018 executed by Sheelam Gopal Reddy, who was the erstwhile owner of the property after receiving a total consideration of Rs.2,25,75,000/- through his son and Power of Attorney Yasaswi Sheelam Reddy.<br>2.12.<span style=\"white-space: pre;\">	</span>After hearing the said application dated 18.6.2020, III Addl. District and Sessions Judge vide its order dated 5.6.2020 in S.C.No.86/2014 rejected the said application, confirmed the attachment order and directed the communication of the same to the Deputy Commissioner, Ramanagara District. It is aggrieved by the same that the petitioner is before this Court.<br><br><span style=\"font-weight: bolder; background-color: rgb(255, 255, 0);\">5. Having heard both the counsels, the points that would arise for consideration by this Court are:</span><br>5.1.<span style=\"white-space: pre;\">	</span>Who could be declared as a proclaimed offender or a proclaimed absconder?<br></h4><h4>5.2.<span style=\"white-space: pre;\">	</span>Whether a proclamation of an accused to be an absconder under Section 82 of the Cr.P.C. is a sine qua non for the purpose of the exercise of rights and/or powers under Section 83 for attachment of the properties of such absconding person or could a property of a person absconding be attached without proclaiming such person as absconding?<br></h4><h4>5.3. When can a property of the accused be attached under Section 83 of the Cr. P.C?<br></h4><h4>5.4. Whether while exercising powers under Section 83 of Cr.P.C, the property which would be attached is required to belong to the accused/absconder?<br></h4><h4>5.5. Would the word ‘belong’ used in Section&nbsp;83 of Cr.P.C mean merely that the property stands in the name of the said accused/absconder or would the interest of any third party in the said property require to be considered?<br></h4><h4>5.6. What is the mode and methodology of attaching the property, is the order of attachment of the property be passed by the concerned Court or can it be delegated to the jurisdictional Deputy Commissioner to attach the property?<br></h4><h4>5.7. Can the agreement holder challenge the attachment on the ground that the agreement holder has an interest in the property, i.e. to say would the mere agreement to sell confer an interest on such a person to lodge a claim or objection to the attachment in terms of Section 84 of Cr.P.C.?<br></h4><h4>5.8. Whether the court passing orders under Section 83 and 84 of Cr.P.C, as also this Court can look into the factum of fraudulent transfer while considering the application under Section 84 of Cr.P.C, or a petition challenging the order passed under Section 84 of Cr.P.C.?<br></h4><h4>5.9. In the event of the dismissal of a claim or objection of such third party, would the third party be required to file a suit in terms of Section 84(4) of the Act, or could such a person approach this Court by way of the writ petition, more so when there is no dispute as regards the agreement entered into by such third party raised<span style=\"white-space: pre;\">	</span>by the owner of the property?<br></h4><h4>5.10.<span style=\"white-space: pre;\">	</span>Would the alternative remedy under Section 84(4) be an embargo for such a person to approach this Court by way of a writ petition?<br></h4><h4><br><span style=\"font-weight: bolder; background-color: rgb(255, 255, 0);\">7. Answer to point No.1: Who could be declared as a proclaimed offender or a proclaimed absconder?</span><br>7.1. Section 204(1) of The Code of<span style=\"white-space: pre;\">	</span>Criminal Procedure, 1973 (CrPC) states that when the Magistrate who is empowered to take cognisance is satisfied that the case is a:<br>7.1.1. Summons case, then he shall issue a summons for the attendance of the person accused.<br>7.1.2. Warrant case, then he may issue a warrant or a summons to present the accused before the Court at a certain time.<br>7.2. Section 204(5) states that nothing in this section shall affect the provisions of Section 87 of the Code.<br>7.3. Section 87 empowers the Court to issue warrant in lieu of, or in addition to, summons. A Court empowered to issue a summons for the appearance of any person, may issue, after recording its reasons in writing, a warrant for his arrest-<br>7.3.1. if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or<br>7.3.2. if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.<br>7.4. Sometimes even after issuance of a warrant the accused is not served or the accused is not capable of being served, the Court would have to take further steps like proclamation etc., to compel the attendance of the accused.<br>7.5. Many a time, the words “proclaimed offender” and “proclaimed absconder” are used interchangeably, as was done in the present case also during the course of arguments.<br><span style=\"font-weight: bolder; background-color: rgb(255, 255, 0);\">Proclaimed Absconder</span><br>7.6. An examination of Section 82 of Cr.P.C. would indicate that if any Court has a reason to believe that any person against whom a warrant has been issued has absconded or is concealing himself so that such warrant cannot be executed, the Court could publish a written proclamation requiring such person to appear at a specified place, at a specified time. Section 82 also provides for the manner in which such publication could be made, i.e., in the following manner.<br>i. Publicly read in some conspicuous place or village in which such person ordinarily resides;<br>ii. Publicly read in some conspicuous place of the&nbsp; town or&nbsp; village&nbsp; in&nbsp; which&nbsp; such person ordinarily resides;<br>iii. Affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;<br>iv. Affixed to some conspicuous part of the Courthouse;<br>7.7. The Court could also direct the proclamation to be published in a daily newspaper, circulating in the place in which such person ordinarily resides.<br>7.8. Once such a proclamation is published under Subsection (1) of Section 82, and if such person fails to appear at the specified place and time as required by the proclamation, the Court may, after making such enquiry as is required, pronounce him to be an absconder and make a declaration that such a person is&nbsp; a proclaimed absconder.<br><span style=\"font-weight: bolder; background-color: rgb(255, 255, 0);\">Proclaimed Offender</span><br>7.9. The Court<span style=\"white-space: pre;\">	</span>may,&nbsp; if it<span style=\"white-space: pre;\">	</span>deems fit, declare a person as a ‘proclaimed offender’ under Section 82(4), when a person fails to appear before the Court as required under the proclamation, if the accused is alleged to have committed offences punishable under the following Sections of the Indian Penal Code&nbsp; of 1860 (IPC):</h4><h4>Section 302 – Offence of Murder<br>Section 304– Offense of culpable homicide not amounting to murder.<br>Section 364– Offense of kidnapping or abducting to commit murder.<br>Section 367– Offense of kidnapping or abducting in order to subject a person to grievous hurt, slavery, etc.<br>Section 382– Offense of theft and preparation made for causing death, hurt or restraint in order to the committing of the theft.<br>Section 392– Offense of robbery.<br>Section 393– Offense of attempt to commit robbery.<br>Section 394– Offense of Voluntarily causing hurt in committing robbery.&nbsp;<br>Section 395– Offense of dacoity.<br>Section 396– Offense of dacoity with murder.<br>Section 397– Offense of robbery, or dacoity, with an attempt to cause death or grievous hurt.<br>Section 398– Offense of attempt to commit robbery or dacoity when armed with a deadly weapon.<br>Section 399– Offense of making preparation to commit dacoity.<br>Section 400– Offense of belonging to the gang of dacoits.<br>Section 402– Offense of assembling for the commission of dacoity.<br>Section 436– Offense of mischief by fire or explosive substance with intent to destroy a house, etc.<br>Section 449– Offense of house- trespass in order to commit an offence punishable with death.<br>Section 459– Offense of grievous hurt caused whilst committing lurking house-trespass or house-breaking.<br>Section 360- Offence of Kidnapping from India.<br>7.10.<span style=\"white-space: pre;\">	</span>If the offences alleged against such a person are punishable under the above provisions and if such person fails to appear at the specified place and time as required by the proclamation, the Court may, after making such enquiry as is required, pronounce him to be an offender and make a declaration that such a person is a proclaimed offender, as a corollary, unless the person is accused of having committed offences punishable under Section 302, 304, 364, 367, 382, 392 to 400,<br>402, 436, 449, 459 or 460 of the IPC, such person cannot be declared a proclaimed offender.<br><span style=\"font-weight: bolder; background-color: rgb(255, 255, 0);\">7.11. Thus it can be seen that the scope, ambit and purport of a proclaimed offender is only as regards a particular set of offences and not as regards all offences.</span><br><span style=\"font-weight: bolder; background-color: rgb(255, 255, 0);\">7.12. A reading of Section 82(4) would indicate that only if a person is accused of offences mentioned in Section 82(4) than a person could be declared a proclaimed offender.</span><br>7.13.<span style=\"white-space: pre;\">	</span>If the person is charged with offences other than those detailed under Section 82(4), he cannot be declared as a proclaimed offender.<br>7.14.<span style=\"white-space: pre;\">	</span>I answer point No.1 by holding that the Court could either suo moto or, on an application being made by the prosecutor, issue a proclamation calling upon the accused to appear at a particular time and place, if the accused were not to appear.<br>7.15.<span style=\"white-space: pre;\">	</span>If a proclamation is published and the accused were not to appear, the Court could suo motu or on an application being made by the prosecutor declare the accused an absconder.&nbsp;<br>7.16.<span style=\"white-space: pre;\">	</span>If the offences are punishable under Section 302, 304, 364, 367, 382, 392 to 400, 402, 436, 449, 459 or 460 of the IPC, he/she can be declared proclaimed offender. Thus a proclaimed absconder is a sub-set of a proclaimed offender.</h4><h4><span style=\"font-weight: bolder; background-color: rgb(255, 255, 0);\">8. Answer to point No.2 Whether a proclamation of an accused to be an absconder under Section 82 of the Cr.P.C. is a sine qua non for the purpose of the exercise of rights and/or powers under Section 83 for attachment of the properties of such absconding person or could a property of a person absconding be attached without proclaiming such person as absconding?</span><br>8.1.<span style=\"white-space: pre;\">	</span>The discussion on point no.1 details out the manner in which a person can be proclaimed either as an absconder or an offender.<br>8.2.<span style=\"white-space: pre;\">	</span>In terms of Section 83, only the property of the proclaimed person either movable or immovable can be attached. Thus the proclamation under Section 82(3) would be a precondition and/or a sine qua non for the purpose of the exercise of powers under Section 83 of Cr.P.C. for attachment of the properties of such proclaimed person.<br>8.3.<span style=\"white-space: pre;\">	</span>As a corollary, if a person is not a proclaimed absconder/offender and/or the process and procedure under Section 82(2) and 82(3) has not been followed, then in that event, the powers under Section 83 cannot be exercised so as to attach the properties of the accused, who has not been proclaimed to be absconding.<br>8.4.<span style=\"white-space: pre;\">	</span>The only exception provided is by the proviso to Section 83, whereunder the Court could attach the property of the accused at the time of proclamation itself if the Court is satisfied by an affidavit or otherwise that the said person is about to dispose of the whole or any part of the property or is about the remove the whole or any part of the property from the local jurisdiction of the Court in such cases the attachment of the property could be made simultaneous to the order of proclamation.<br>8.5.<span style=\"white-space: pre;\">	</span>Even this exception does not completely do away with the requirement of proclamation inasmuch as the attachment could be made along with the proclamation not before the proclamation.<br>8.6.<span style=\"white-space: pre;\">	</span>Apart from the attachment of property, such a proclaimed absconder and or offender would also be amenable to further punishment. Section 174-A in the IPC has been inserted by virtue of the Criminal Law (Amendment) Act&nbsp; of 2005 in terms whereof<br>8.6.1. a proclaimed absconder under section 82(1) of the Cr.P.C, shall be punished with imprisonment for a term that may extend to three years.<br>8.6.2. A proclaimed offender under section 82(4) of the Cr.P.C shall be punished with imprisonment for a term that may extend to seven years along with fine.<br><span style=\"font-weight: bolder; background-color: rgb(255, 255, 0);\">8.7.<span style=\"white-space: pre;\">	</span>I answer point No.2 by holding that a proclamation of an accused to be an absconder under Section 82 of the Cr.P.C. is a sine qua non for the purpose of the exercise of rights and/or powers under Section 83 for attachment of the properties of such absconding person.</span><br>8.8.<span style=\"white-space: pre;\">	</span>A property of a person absconding cannot be attached without proclaiming such person as absconding, except in the emergent circumstances prescribed in the proviso to Section 83.<br>9. Answer to point No.3: When can a property of the accused be attached under Section 83 of the Cr. P.C?<br>9.1. Section 83 of Cr.P.C deals with the attachment of property of a person absconding.<br>9.2. The Court which had issued a proclamation under Section 82 may for reasons to be recorded in writing, any time after the issuance of proclamation order the attachment of any property movable or immovable or both belonging to the proclaimed person.<br>9.3. The proclamation as regards a proclaimed person under 83(1) can therefore only be traced to Section 82(2), once such proclamation is made as regards a person and such person does not appear before the Court at the specified time and specified place, then such person can be termed as a proclaimed absconder and his property could be attached.<br>9.4. Though there is a difference between a ‘proclaimed absconder’ and ‘proclaimed offender’ for other purposes under the Cr. P.C. For the purposes of attachment of the property, so long as a person is proclaimed the same would be sufficient to attach his property.<br>9.5. The property of the accused who is proclaimed can be attached and later disposed of in order to compel the accused’s appearance in Court. For disobedience of a proclamation the accused would also be liable to be punished under section 174 of the Indian Penal Code. This provision is devised to put additional pressure on the accused by depriving the accused of his/her property, with a view to compel attendance in Court.<br>9.6. The procedure laid down under section 83 has to be followed strictly. Jurisdiction to pass attachment order cannot be assumed unless a proclamation under section 82 of the code has been issued. It may be advisable for the Court to wait for a period of thirty days, to enable the accused to appear in terms of the proclamation. The words at any time after the issue of proclamation are not to be interpreted in isolation. The key for gathering the intention of the lawmakers is to be found in section 82 of the code. Section 82 and section 83 are to be read in harmony. Thus, except in cases covered by the proviso to section 82(1) the attachment order has to maintain a distance of not less than thirty days from the date of the publication under section 82. The word at any time in section 83(1) only mean that if after the issue of proclamation, either of the two conditions mentioned in Clauses (a) and (b) of the provision to section 83(1) comes into existence, an order of attachment may be made without waiting for thirty days to expire. Even is such a case the Magistrate has to record his reasons for arriving at the judicial satisfaction that such conditions as mentioned in the proviso to have come into existence as held in Devendra Singh v State of U.P., 1994 CrLJ 1783 (1788).<br>9.7. It is seen that in many cases, the accused though served, remains absent, does not participate in the proceedings and/or conceals himself in such a manner as to avoid service, thereby resulting in a delay in the criminal proceedings, many times resulting in splitting up of the case and the proceedings against the accused who is available. In some cases, the accused who is available would be in custody and on account of the delay caused due to non-availability or on account of one of the accused absconding, entire proceedings get delayed, and the accused available continues to be in custody, essentially the right to speedy trial of such accused in custody is infringed by the accused absconding.<br>9.8. It is in order to secure the presence of the accused that various modes of service have been made available to a criminal Court.<br>9.9. Firstly summons or warrant is issued, if the accused were not to appear, a Non-Bailable Warrant is issued, which if not capable of being served, proclamation could be issued in terms of Section 82 of Cr.P.C. despite which if the accused were not to appear the accused could be declared absconding and thereafter the property of the accused can be attached and bought to sale, so that under the fear of losing the property, the accused may appear before the Court.<br>9.10.<span style=\"white-space: pre;\">	</span>Thus the property of an accused can be attached under Section 83 of Cr.P.C. post the proclamation and declaration that an accused is absconding by following the procedure under Section 82(2) and 82(3) of the Cr.P.C. whenever the Court comes to a conclusion that the accused is evading or avoiding service of summons, warrant or NBW and this power to be exercised so as to secure the presence of the accused before the Court at the&nbsp; earliest.<br>9.11.<span style=\"white-space: pre;\">	</span>In criminal trials it is but required for the Court to exercise these powers as early as possible, it is for the Public Prosecutor to file necessary applications under Section 82, as also under Section 83 of the Cr.P.C., as soon as the reasons and or the conditions of Section 82 and/ or Section 83 as the case may be are satisfied. There is a bounden duty on the part of the Public Prosecutor to immediately file a necessary application under Section 82 of the Cr.P.C. for proclamation when the service of the warrant and/or NBW is not being affected and/or the accused concealing himself.<br>9.12.<span style=\"white-space: pre;\">	</span>Even if the prosecutor were not to file such application/s, Section 82 does not require an application to be made by the Public Prosecutor since it reads ‘if any court has reason to believe…’, therefore the Court on its own or suo motu could take up the proceedings under Section 82 issue a proclamation, direct its publication and record the due publication of the proclamation. If the accused were not to appear, the Court could also go ahead with attaching the property of the accused and bringing the same for sale. The Court is also duty-bound to exercise power under Section 82 and 83 at the earliest point on time so as not to delay the criminal trial only for the reason that the presence of the accused could not be secured.<br><span style=\"font-weight: bolder; background-color: rgb(255, 255, 0);\">9.13. I answer point No.3 by holding that a property of the absconder can be attached anytime after the non- appearance of the accused in pursuance of a proclamation, it may, however, be advisable to wait for a period of 30 days from the date on which the accused was required to appear.</span><br>10. Answer to point No.4: Whether while exercising powers under Section 83 of Cr.P.C, the property which would be attached is required to belong to the accused/absconder?<br>And<br>Answer to point No.5: Would the word ‘belong’ used in Section 83&nbsp; of Cr.P.C&nbsp; mean merely that the property stands in the name of the said accused/absconder or would the interest of any third party in the said property require to be considered?<br>10.1.<span style=\"white-space: pre;\">	</span>A reading of Section 83 of Cr.P.C. would indicate<span style=\"white-space: pre;\">	</span>that<span style=\"white-space: pre;\">	</span>the<span style=\"white-space: pre;\">	</span>Court could order the attachment of property, movable and immovable or both belonging to a proclaimed person and therefore, it is required that the property to be attached belongs to the accused who is absconding. This being so, for the reason that it is only in such cases where such property is attached could there be pressure on the accused to appear before the Court so as to get the orders of attachment lifted on his appearance. Failure thereto would result in attachment of properties being sold and the proceedings thereof being forfeited to the State. This being a powerful weapen in the armoury of the Court to secure the presence of the accused before it.<br>10.2.<span style=\"white-space: pre;\">	</span>Thus unless the property belongs to the accused and/or unless the accused would be adversely affected by the attachment order and or subsequent sale, there would be no purpose served in attaching the property. Thus if a third party were to have any interest in the said property and/or accused has lost interest in the property, in such circumstances, there would be no purpose served by attaching the property over which accused has no interest and/or that the accused will not get adversely affected by the attachment and/or sale of the said property, so as to secure his/her presence. The Court also needs to be conscious of the fact that the order of attachment should be such that it secures the presence of the accused, towards this end, multiple properties of the accused could also be attached.<br>10.3.<span style=\"white-space: pre;\">	</span>In the above background, it would be but required for the Court to not only ascertain that the property belongs to the accused and/or owned by the accused, but also to ascertain whether the interest of the accused in the property continues to be subsisting as on the date of attachment or if the said interest has been transferred to any third party, which would come in the way of achieving the purpose of securing the presence of a person absconding.<br>10.4.<span style=\"white-space: pre;\">	</span>Thus, the interest of any third party would also have to be considered if such interest is such that the accused, despite the attachment order, would not appear before the Court since neither the attachment nor subsequent sale by the Court would have any adverse impact on the said accused.<br><span style=\"font-weight: bolder; background-color: rgb(255, 255, 0);\">10.5. I answer point Nos.4 and 5 by holding that it is only the property that belongs to or over which the accused has an interest that the property could be attached. The Court could attach multiple properties belonging to the accused so as to secure the presence of the Accused.</span><br>11. Answer to point No.6: What is the mode and methodology of attaching the property, is the order of attachment of the property be passed by the concerned Court or can it be delegated to the jurisdictional Deputy Commissioner to attach the property?<br>11.1.<span style=\"white-space: pre;\">	</span>In terms of Section 83(1) of the Cr.P.C the Court issuing a proclamation under section<br>82 may, for reasons to be recorded in writing, at any time after the issuance of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person. Thus it is clear that the order of attachment has to be passed by the Court.<br>11.2.<span style=\"white-space: pre;\">	</span>The mode and methodology of the attachment has been prescribed&nbsp; under Section 83(2) of the Cr.P.C. Post the attachment order passed by the Court in terms of Section 83(1), the Court could send the same to the District Magistrate within whose District the said property is situated for carrying out attachment.<br>11.3.<span style=\"white-space: pre;\">	</span>That essentially would mean that the attachment order is required to be passed by the Court and the attachment order be sent to the District Magistrate for the purpose of execution of the attachment order.<br>11.4.<span style=\"white-space: pre;\">	</span>The attachment could be made in case of movables by:<br>11.4.1. Seizure of the movable;<br>11.4.2. By appointment of the receiver;<br>11.4.3. by passing of garnishee order prohibiting delivery of any property of a proclaimed person to the proclaimed person or any one on behalf of the proclaimed person, etc.<br>11.5.<span style=\"white-space: pre;\">	</span>If the property is immovable property, the same could be attached by :<br>11.5.1. taking possession;<br>11.5.2. by appointment of a receiver<br>11.5.3. by an order in writing prohibiting payment of rent to the proclaimed person or anyone on his behalf, etc.<br><span style=\"font-weight: bolder; background-color: rgb(255, 255, 0);\">11.6. I answer point No.6 by holding that the order of attachment is required to be passed by the concerned Court, and it cannot be delegated to the jurisdictional Deputy Commissioner or District Magistrate. The order of attachment passed by the Court is to be sent to the Deputy Commissioner or District Magistrate for the purpose of execution/implementation of the order of attachment.</span><br>12. Answer to point No.7: Can the agreement holder challenge the attachment on the ground that the agreement holder has an interest in the property, i.e. to say would the mere agreement to sell confer an interest on such a person to lodge a claim or objection to the attachment in terms of Section 84 of Cr.P.C.?<br>12.1.<span style=\"white-space: pre;\">	</span>In terms of Section 54 of the Transfer of Property Act, mere agreement of sale would not convey any right, title or interest in favour of the purchaser. Thus, an&nbsp; agreement holder by himself cannot assert any right over the property. This being the general law, the applicability of Section 54 of the Transfer of Property Act in matters relating to Section 83 and 84 of Cr.P.C. would have to be considered in the context thereto. Since without such context, the meaning, purport and intent of&nbsp; the legislation would be lost. Therefore, there has to be a purposive interpretation given to the provisions, i.e. Section 83, 84 of the Cr.P.C. and Section 54 of the Transfer of Property Act.<br>12.2.<span style=\"white-space: pre;\">	</span>Attachment of a property is required to be made so as to secure the presence of the absconding accused.<br>12.3.<span style=\"white-space: pre;\">	</span>As aforestated and repeated, the purpose of proclaiming a person to be absconding and attaching the property of such proclaimed absconder is to secure his presence before the Court. For this purpose, what is to be seen is what is the interest of the proclaimed absconder in the property to be attached or already attached. The attachment of the property and possibility of the sale would in default of the said absconder appearing before the Court on a particular date and time fixed by the Court would have to be such that such sale should adversely impact the right and interest of the proclaimed absconder. There would be no purpose served by attaching the property, sale of which would have no impact on securing the presence of the proclaimed absconder.<br>12.4.<span style=\"white-space: pre;\">	</span>Thus in the event of the proclaimed absconder having entered into an agreement of sale with a third party and having received substantial consideration therein, though mere agreement of sale would not convey any right, title and interest to such purchaser, the proclaimed absconder having received substantial consideration, the attachment of such property would also not secure the presence of such proclaimed absconder before the Court, hence rendering the entire process of attachment and sale thereto useless and the purport and ambit of Section 83 of Cr.PC not being achieved.<br>12.5.<span style=\"white-space: pre;\">	</span>Section 84 provides for claims and objections being laid to such attachment. Section 84 is reproduced hereinabove for easy reference.<br>12.6.<span style=\"white-space: pre;\">	</span>Section 84, as could be seen, provides for objections to be laid within six months from the date of attachment by any person other than a proclaimed person on the ground that the said person, i.e. the claimant or objector, has an interest in the property and such interest is not liable to be attached under Section 83 of Cr.P.C.<br>12.7.<span style=\"white-space: pre;\">	</span>Thus insofar as the proceeding under Section<br>84 are concerned, I am of the considered opinion that a third party, a bonafide purchaser who has paid sufficient consideration under an agreement of sale, such agreement having been entered into prior to the proclamation could object to the attachment and seek for lifting thereof and the Court could set-aside the attachment in the event of the Court coming to a conclusion that the attachment of sale of the property would not secure the presence of the proclaimed offender but also cause loss to the genuine and bonafide purchaser of the property.<br>12.8.<span style=\"white-space: pre;\">	</span>The attachment and sale of the property as regards which the proclaimed absconder has received substantial consideration would not in any manner secure the presence of such an accused. Hence, the entire process being resorted to by the Court would only be an empty formality and not serve any purpose.<br><span style=\"background-color: rgb(255, 255, 0);\"><span style=\"font-weight: bolder;\">12.9. Thus, I answer point No.7 by holding that an agreement holder can challenge the attachment on the ground that the agreement holder has an interest in the property, so long as the interest is substantial and has been acquired in a bonafide manner and in this regard such a person can lodge a claim or objection to the attachment in terms of Section 84 of Cr.P.C.</span></span><br>13. Answer to point No.8: Whether the court passing orders under Section 83 and 84 of Cr.P.C, as also this Court can look into the factum of fraudulent transfer while considering the application under Section 84 of Cr.P.C or a petition challenging the order passed under Section 84 of Cr.P.C.?<br>13.1.<span style=\"white-space: pre;\">	</span>As already held in answer to Point No.6 above, the interest of purchaser of a property, bonafide, in good faith is required to be protected and such interest not to be harmed merely because the proclaimed absconder had an interest in the same and or that he sold the property to such bonafide purchaser.<br>13.2.<span style=\"white-space: pre;\">	</span>The question then would be what is the status of a fraudulent transfer and/or status of the purchaser who has purchased the same knowing fully well that the property belongs to an accused who has absconded and or is likely to be declared as proclaimed absconder in the future and/or that the very purpose of the purchase of the property is only to safeguard the property from being attached and/or auctioned.<br>13.3.<span style=\"white-space: pre;\">	</span>In the event of such a transfer is not bonafide, then there is no interest of such purchaser, which is required to be protected by a Court of law. The said purchaser is as guilty as the proclaimed absconder, and the sale of such property&nbsp; could have an impact in securing the presence of the proclaimed absconder.<br>13.4.<span style=\"white-space: pre;\">	</span>Thus in my considered opinion, while deciding a matter under Section 84 of Cr.P.C, the Court should always keep in mind the factum of a fraudulent transfer while considering such an application, the burden of proof thereto being on the agreement holder or third party objector to prove that the transaction is genuine, bonafide and entered into in good faith. The examination of the Court in this regards is only a prima- facie examination and does not require a detailed enquiry.<br><span style=\"font-weight: bolder; background-color: rgb(255, 255, 0);\">13.5. I answer Point No.8, holding that the Court can look into the factum of fraudulent transfer while considering the application under Section 84 of Cr.P.C or a petition challenging the order passed under Section 84 of Cr.P.C. the examination of the Court under section 84 is nevertheless prima-facie and does not require a detailed enquiry.</span><br>14.Answer to point Nos.9 and 10: In the event of the dismissal of a claim or objection of such third party, would the third party be required to file a suit in terms of Section 84(4) of the Act or could such a person approach this Court by way of a Writ Petition, more so when there is no dispute as regards the agreement entered into by such third party raised by the owner of the property?<br>AND<br>Would ordinary alternative remedy under Section 84(4) be an embargo for such a person to approach this Court by way of a writ petition?<br>14.1.<span style=\"white-space: pre;\">	</span>Section 84(4) of Cr.P.C. provide for a remedy to such third party claiming to be an objector in the event of his objections under Section 84(1) being disallowed or rejected viz., by filing a suit to establish his rights in respect of the property in dispute within a period of one year from the date of such dismissal of the petition.<br>14.2.<span style=\"white-space: pre;\">	</span>Sri.C.V.Nagesh, learned Senior counsel has contended that filing of a suit would be necessitated only if a dispute as regards the right of the objector exists. He contends&nbsp; that when there is no dispute as regards the right of the objector, no suit is required to be filed, and such a person could approach this Court under Article 226 read with 227 of the Constitution challenging the dismissal of the claim filed under Section 84(1) of the Cr.P.C.<br><span style=\"font-weight: bolder; background-color: rgb(255, 255, 0);\">14.3. As answered in Point No. 6 and 7 above, it is only a genuine, bonafide purchaser of the property in good faith who could maintain a proceeding under Section 84(1).</span><br>14.4.<span style=\"white-space: pre;\">	</span>If the purchase is malafide, dishonest or with an intention to remove the property from the scope of attachment, i.e. to say that the transaction is fraudulent or collusive, a claim or objection made could be rejected. However, the finding in a proceeding under Section 84(1) is only a prima facie finding. If a finding of a prima facie fraudulent transfer is issued on a claim under Section 84(1), then such a person would necessarily have to establish his genuineness and bonafides by instituting a suit under Section 84(4) of Cr.P.C.<br>14.5.<span style=\"white-space: pre;\">	</span>Though the execution of the agreement of sale could not be in dispute, the object, reason and motive of such execution of an agreement of sale would be in question, which a competent court of law could only decide after trial by considering the evidence led by both the parties.<br>14.6.<span style=\"white-space: pre;\">	</span>It is only if the right of the third party claimant or objector is not in dispute inasmuch as the Public Prosecutor and/or the State were not to dispute the right of the objector in respect of the property, despite which the claim petition came to be rejected, then in that event, such third party objector could approach this Court by way of writ petition.<br>14.7.<span style=\"white-space: pre;\">	</span>As stated above, whenever there is any dispute as regards the rights or claims of the third party objector, the same would have to be decided in a properly instituted suit and not by way of a writ petition.<br><span style=\"font-weight: bolder; background-color: rgb(255, 255, 0);\">14.8. Therefore, I Answer Point Nos. 9 and 10 by holding that in the event of the dismissal of a claim or objection of such third party, the third party would be required to file a suit in terms of Section 84(4) of the Act.</span><br><span style=\"font-weight: bolder; background-color: rgb(255, 255, 0);\">14.9. It is only when there is no dispute as regards the rights and or claims of a third party that a writ petition can be filed and the alternative remedy under Section 84(4) would not be an embargo for such a person to approach this Court by way of a writ petition.</span><br>15.6.<span style=\"white-space: pre;\">	</span>The said Gopal Sheelam Reddy has concealed himself so that warrant could not be executed against him. If at all the said Gopal Sheelam Reddy had been declared as an absconder, then the agreement of sale which was entered into between the absconder and petitioner cannot be said to have been bonafide but would have to be said to be malafide since there was no particular purpose for the petitioner to have purchased the property except to preserve the property and take it out the jurisdiction of Ramanagar since the said Gopal Sheelam Reddy @ Nityabhaktananda having travelled outside India which was only a matter of time before he would be a ‘proclaimed absconder, thereby bringing up the property for sale.<br>15.7.<span style=\"white-space: pre;\">	</span>In my considered view the entire transaction being a fraudulent transaction and therefore, the property could have been attached or brought on sale if the procedure under Section 82 Cr.P.C. had been followed by the III Addl. Sessions Judge, Ramanagara before doing so.<br>15.8.<span style=\"white-space: pre;\">	</span>In view thereof, I am of the considered opinion that the orders dated 5.06.2020 and dated 29.06.2020 are not sustainable and they are not in accordance in law and are therefore, required to be set-aside.<br>16.<span style=\"white-space: pre;\">	</span>Answer to point No.12: What Order ?<br>16.1.<span style=\"white-space: pre;\">	</span>In the result, the petition is allowed.<br>16.2.<span style=\"white-space: pre;\">	</span>Writ of certiorari is issued setting aside the order dated 5.06.2020 and 29.06.2020 passed in S.C.No.86/2014 by the III Addl. Sessions Judge, Ramanagar, liberty is, however, reserved for the Court to proclaim the petitioner as absconding and proceed therefrom.</h4>', '887cb538627fb7cd7748f694bc0a4769.JPG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-22', 1, '', '', '2023-02-22 15:03:53', '2023-02-22 15:03:53');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2714, 'RQFNw9kyhigDPUNg96cvHXIqB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque bounce cases. While considering application for grant of interim compensation, conduct of the accused is relevant. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>V. Krishnamurthy Vs Diary Classic Ice Creams Pvt Ltd.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 632 of 2022 decided on 1 June 2022.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b style=\"font-size: 12pt; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b style=\"font-size: 12pt; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Justice M. Nagaprasanna.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>The petitioner is before this Court calling in question order dated 12-10-2021 passed by the XXVIII Additional Chief Metropolitan Magistrate, Bangalore in C.C.No.15681 of 2020, in a proceeding instituted by the respondent/complainant for offences punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘the Act’ for short). The order challenged is an order granting 10% interim compensation in terms of Section 143A of the Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows: The petitioner is a retailer and the respondent/complainant is a producer of Ice Cream. The petitioner and the respondent entered into an agreement in the year 2017 for distribution of Ice Cream and frozen dessert products manufactured by the respondent/complainant, in and around city of Coimbatore. Pursuant to the agreement, it is the case of the petitioner that the complainant had demanded the petitioner for issuance of blank cheques as security in lieu of proposed supply to be made to the petitioner for the purpose of such distribution. Accordingly, the petitioner claims that he had handed over several blank cheques, one of which, was cheque bearing No.011226, as security to the respondent and not towards any liability which the petitioner owed to the complainant. The respondent/complainant had been supplying Ice Creams and frozen products more than the quantity of the order placed by the petitioner which was brought to the notice of the complainant and in the light of reduced demand it was indicated that the supply of the products be reduced and further the petitioner refused to accept the stock as it was a perishable commodity with a short shelf life. Despite refusal of the order, the complainant went on supplying the stock.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>4. It appears that the petitioner represented to the complainant that payment would be made only after sales take place as potential for selling Ice Cream had come down and with the onset of COVID-19 entire business of the petitioner was in doldrums.&nbsp; It is the further case of the petitioner that despite the talks between the petitioner and the respondent, the complainant misused blank cheque bearing No.011226 issued by the petitioner as security, by depositing the same with the banker. The cheque that was deposited was for an amount of Rs.5,56,71,208/- which came to be dishonoured on the ground of want of sufficient funds in the account of the petitioner. Pursuant to the dishonor of the cheque, the complainant takes up legal proceedings against the petitioner by registration of complaint invoking Section 200 of the Cr.P.C. for offences punishable under Section 138 of the Act.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>5. The issue before this Court is not whether the cheque was issued for the purpose of security or otherwise. It is a matter of evidence that is pending adjudication before the competent criminal Court. In the said proceedings, the complainant files an application under Section 143A of the Act seeking interim compensation as permissible under the statute to the tune of 20% of the cheque amount. The learned Magistrate considering the application filed by the complainant and objections filed thereto allows the application by granting interim compensation of 10% of the cheque amount to be paid within 60 days of the order. It is this order that drives the petitioner to this Court in the subject petition.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>6. The learned counsel appearing for the petitioner would vehemently argue and contend that the cheque that was issued in the name of the complainant was a blank cheque that was given as security, in furtherance of the agreement between the parties for distribution and sale of Ice Cream produced by the respondent/complainant, which has been misused by the complainant by entering an amount of Rs.5,56,71,208/- thereto. The order directing payment of 10% of the cheque amount as interim compensation by the learned Magistrate suffers from want of application of mind, as it does not consider the circumstances under which such a claim becomes due.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>7. On the other hand, the learned counsel appearing for the respondent would vehemently refute the submission to contend&nbsp; that&nbsp; the&nbsp; outstanding&nbsp; debt&nbsp; of&nbsp; Rs.5,56,71,208/-&nbsp; is admitted by the petitioner and in the teeth of such admission it cannot be said that the respondent was not entitled to such compensation as available under the statute. He would submit that the order impugned does not suffer from want of application of mind, as it is rendered exercising such discretion by granting only 10% as interim compensation.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>9. In the light of the order impugned being an order of grant of interim compensation of 10% of the total cheque amount under Section 143A of the Act, I deem it appropriate to notice Section 143A of the Act and its purport.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>10. Section 143A of the Act was introduced for a specific purpose.&nbsp;The purport for introduction of the amendment was that the Government had been receiving several representations from the public including trading community relating to pendency of cheque dishonor cases. This was because of delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings. The injustice caused to the payee of a dishonoured cheque had to be considered. Therefore, the purpose for introduction of the amendment was delay in proceedings.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>12. On a conjoint reading of the objects and reasons, amendment made, and the purport of the provisions, what would unmistakably emerge is that the learned Magistrate is empowered to exercise his discretion in the grant of interim compensation which would in any given case range from 1% to 20%. Once the discretion by the learned Magistrate happens, the rigour of the statute sets in as the words in the statute depicts that the Court may in a given case grant such compensation and once granted consequences follow. Therefore, the learned Magistrates are required to exercise discretion by recording reasons in writing which would demonstrate application of mind, as application of mind and reasons in an order are inseparable. Application of mind is discernible only when the order reflects adequate reasons being given for exercise of such discretion.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>13. Application of mind and passing of a reasoned order of grant of compensation becomes necessary in the light of penal consequences that ensue an accused who failed to comply with the order granting 20% compensation as the complainant is given several remedies of recovery which result in the accused being taken into custody. Therefore, such orders which result in such penal consequences should be rendered giving cogent reasons which would demonstrate application of mind and such orders should be passed only after hearing the accused in the matter. In cases where the learned Magistrate is to exercise discretion, such discretion should become two fold.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>First fold: Where an application is so made, the learned Magistrate has to apply his mind whether such an application is to be considered at all, as every application that is made need not result in grant of 20% interim compensation. Several factors need be gone into for considering such applications bearing in mind the reason and backdrop of the amendment. As quoted herein-above the bedrock of the amendment was to stall unscrupulous drawers of cheques drawing proceedings with frivolous applications, absenting themselves, seeking continuous adjournments causing delay and grave prejudice to the case of the complainants. In these factors, the learned Magistrate after analyzing the conduct of the accused should grant compensation which would vary from 1% to 20% after recording reasons. In a given case if the accused is cooperating with the trial without seeking any unnecessary adjournments, not absenting himself or his counsel on any date and cooperating with the conclusion of the trial in such cases, the learned Magistrate will have to apply his mind, exercise his discretion as to whether such applications should be entertained at all. Therefore, it forms two classes of litigants. One who would cooperate with the proceedings and the other who would not. In cases where there is complete co-operation from the hands of the accused in the trial, the Court may consider whether interim compensation has to be granted at all and in cases where there is no cooperation on the part of the accused, the Court may proceed to consider the application.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">Second fold: The second fold of discretion in any given case , the compensation may vary from 1% to 20%. It is nowhere depicted in the statute that the amount of interim compensation should be of a particular figure. It can vary from 1% to 20%. It is this variance that gives the learned Magistrate power to exercise discretion to grant such compensation. The mandate of the statute is that it should not exceed 20%. In the cases where learned Magistrate proceeds to grant compensation, has to bear in mind the amount involved in the instrument,&nbsp; as certain transactions would run to several cores and the accused may have formidable defence against the complainant. In such cases, the learned Magistrate should exercise discretion in a cautious manner.&nbsp; Here again the conduct of the accused should be noticed. Therefore, the aforesaid two fold discretion is sine qua non for an order to be passed by the learned Magistrate while considering the application under Section 143A of the Act.<br></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>15. There is no reason recorded by the learned Magistrate that the accused in the case at hand has adopted any of the factors as narrated hereinabove that would entail consideration of an application under Section 143A of the Act.&nbsp; With the reason that is rendered by the learned Magistrate as quoted (supra), the order granting 10% compensation, in the case at hand,&nbsp; becomes&nbsp; unsustainable.&nbsp; &nbsp;This&nbsp; Court&nbsp; is&nbsp; flooded&nbsp; with litigation with regard to grant of compensation under Section 143A of the Act by criminal courts. In several cases discretion is exercised for grant of compensation and in several other cases there are no reasons for exercise of such discretion. Therefore, it has become necessary to direct learned Magistrates that while considering applications filed under Section 143A of the Act, to notice at the outset, the conduct of the accused. If the accused has been unnecessarily evading the proceedings by seeking adjournments, consideration of the application would become imperative as the amendment itself is introduced to compensate such payees of delay tactics adopted by unscrupulous drawers of cheques.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>16. The order of the learned Magistrate impugned herein does not bear any such reason as is indicated hereinabove. The amount involved in the transaction is Rs.5,56,71,208/- and 10% of the said amount would mean Rs.55 lakhs. Therefore, it was necessary for the learned Magistrates to apply his mind, record such reasons which would demonstrate application of mind and then allow the application for grant of compensation in terms of the Act. In the absence of the aforesaid, I deem it appropriate to exercise my discretion under Section 482 of the Cr.P.C., set aside the order impugned and remit the matter back to the hands of the learned Magistrate to pass appropriate orders on the application, bearing in mind the observations made in the course of the order.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>O R D E R</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space: pre;\"> </span>The Criminal Petition is allowed.</b></font></span></p>', '59fb4468507a61d9c4b07a4104947562.jpeg', '1413533ae2026c5ad22aa496eba30b2a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-22', 1, '', '', '2023-02-22 10:58:50', '2023-02-22 10:58:50'),
(2711, 'dAO94HN0V4dBpl8bTHkioSHya', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'DNA tests are not exploratory or investigatory experiments for determining paternity. Order directing that a minor child be subjected to DNA test should not be passed mechanically in each and every case. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Aparna Ajinkya Firodia Vs Ajinkya Arun Firodia.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1308 of 2023 decided on 20 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B.V. Nagarathna and Justice V. Ramasubramanian.&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. While I am entirely in agreement with the opinion wellcrafted by my learned sister Hon’ble Mrs. Justice B.V.\r\nNagarathna, I thought that two aspects of the matter require little\r\nmore emphasis. Hence a separate but concurring opinion.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. But we do not know how a mix up of Section 112 and\r\nSection 114 is possible. Section 112 deals with something where\r\nthe existence of a fact is taken to be conclusive proof, without any\r\npossibility for the disputing party to lead evidence for disproving&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the same. The only escape route or emergency exit as we may\r\ncall it, available for a person to deprive another person of the\r\nbenefit of Section 112, is to show that the parties to the marriage\r\ndid not have access to each other at the time when the child\r\ncould have been begotten. Section 114 has nothing to do with,\r\nnor is in connection with conclusive proof of legitimacy dealt with\r\nby Section 112. Both Section 112 and Section 114 fall under\r\ndifferent compartments. The word “presumption” itself is not used\r\nin Section 112. The expression used in Section 112 is “conclusive\r\nproof”. Therefore, by virtue of Section 4, no evidence shall be\r\nallowed to be given for the purpose of disproving it.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>22. As we have indicated elsewhere, if one of the parties to the\r\nmarriage shows that he had no access to the other at the time\r\nwhen the child could have been begotten, then Section 112 itself\r\ndoes not get attracted. On the contrary, if the parties have had\r\naccess to each other at the relevant point of time, the fate of the\r\nquestion relating to legitimacy is sealed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n23. We are not suggesting for a moment that Section 112 acts\r\nas a shield even for the alleged adulterous conduct on the part of\r\nthe wife. All that we say is that anything that would destroy the&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">legal effect of Section 112 cannot be used by the respondent, on\r\nthe ground that the same is being done to achieve another result.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. The pleading of the respondent extracted above to the effect\r\nthat after September 2016, he has had no physical relationship\r\nwith the appellant-wife means that he has at least had access to\r\nthe wife both at the time when the child was begotten and for a\r\nfull period of three years even thereafter. Therefore, the\r\nconclusive proof under Section 112 has actually come into play in\r\nthis case.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. There is another fallacy in the argument of the respondent.\r\nIt is the contention of the respondent that he is seeking an&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">adverse inference to be drawn only as against the wife under\r\nSection 114(h), upon the refusal of the wife to subject the child to\r\nDNA test. But the stage at which the wife may refuse to subject\r\nthe child to DNA, would arise only after the Court comes to the\r\nconclusion that a DNA test should be ordered. To put in simple\r\nterms, there are three stages in the process, namely, (i)\r\nconsideration by the Court, of the question whether to order DNA\r\ntest or not; (ii) passing an order directing DNA test, after such\r\nconsideration; and (iii) the decision of the wife to comply or not,\r\nwith the order so passed. The respondent should first cross the\r\nouter fence namely whether a DNA test can be ordered or not. It\r\nis only after he convinces the Court to order DNA test and\r\nsuccessfully secures an order that he can move to the inner\r\nfence, regarding the willingness of the wife to abide by the order.\r\nIt is only at that stage that the respondent can, if at all, seek\r\nrefuge under Section 114(h).&nbsp;</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. Coming to the presumption under Section 114(h), the\r\ncontention of the respondent is obviously misplaced. An adverse\r\ninference, in law, can be drawn only against the person who\r\nrefuses to answer a question. In the case on hand, the appellant\r\nhas a dual role to play, namely, that of the respondent’s wife and\r\nthat of Master Arjun’s mother. If the appellant does or refuses to\r\ndo something, for the purpose of deriving a benefit to herself, an\r\nadverse inference can be drawn against her. But in her capacity\r\nas a mother and natural guardian if the appellant refuses to\r\nsubject the child to DNA test for the protection of the interests\r\nand welfare of the child, no adverse inference of adultery can be\r\ndrawn against her. By refusing to subject the child to DNA test,\r\nshe is actually protecting the best interests of the child. For\r\nprotecting the best interests of the child, the appellant-wife may\r\nbe rewarded, but not punished with an adverse inference. By\r\ntaking recourse to Section 114(h), the respondent cannot throw\r\nthe appellant to a catch-22 situation.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. Therefore, Section 114(h) has no application to a case where\r\na mother refuses to make the child undergo DNA test. It is to be\r\nremembered that the object of conducting a DNA test on the child\r\nis primarily to show that the respondent was not the biological&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">father. Once that fact is established, it merely follows as a\r\ncorollary that the appellant was living in an adulterous\r\nrelationship.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>30. What comes out of a DNA test, as the main product, is the\r\npaternity of the child, which is subjected to a test. Incidentally,\r\nthe adulterous conduct of the wife also stands established, as a\r\nby-product, through the very same process. To say that the wife\r\nshould allow the child to undergo the DNA test, to enable the\r\nhusband to have the benefit of both the product and the byproduct or in the alternative the wife should allow the husband to\r\nhave the benefit of the by-product by invoking Section 114, if she\r\nchooses not to subject the child to DNA test, is really to leave the\r\nchoice between the devil and the deep sea to the wife.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>31. In fact, in cases of this nature the Court must bear in mind\r\nthat Section 114 uses only the word “may” and not the word\r\n“shall”. Therefore, the constraints articulated in the exposition to\r\nIllustration (h) under Section 114 may dissuade the Court not to\r\npresume at all.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n32. Hence, we reject the contention of the respondent that what\r\nis sought to be invoked is only Section 114(h) and not Section\r\n112.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>33. As rightly contended by Shri Huzefa Ahmadi, learned senior\r\ncounsel for the appellant, the question as to whether a DNA test\r\nshould be permitted on the child, is to be analysed through the\r\nprism of the child and not through the prism of the parents. The\r\nchild cannot be used as a pawn to show that the mother of the\r\nchild was living in adultery. It is always open to the respondenthusband to prove by other evidence, the adulterous conduct of\r\nthe wife, but the child’s right to identity should not be allowed to\r\nbe sacrificed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n34. It is contended by Mr. Kapil Sibal, learned senior counsel for\r\nthe respondent that after all the endeavour of every Court should\r\nbe to find the truth and that every party to a litigation is entitled\r\nto produce the best evidence. Enabling the party to produce the\r\nbest of evidence, is part and parcel of right to fair trial. Therefore,\r\nit is contended by learned senior counsel that the refusal to\r\nsubject the child to DNA test would infringe upon the\r\nrespondent’s right to fair trial. To buttress the contention that the\r\nright to privacy of an individual must yield to the right to fair trial\r\nof another, reliance is placed upon the decision of this Court in Sahara India Real Estate Corporation Limited &amp; Ors. vs.\r\nSecurities and Exchange Board of India &amp; Anr</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>35. Attractive as it may seem at first blush, the said argument\r\ndoes not carry any legal weight. The lis in these cases is between\r\nthe parties to a marriage. The lis is not between one of the parties\r\nto the marriage and the child whose paternity is questioned. To\r\nenable one of the parties to the marriage to have the benefit of\r\nfair trial, the Court cannot sacrifice the rights and best interests\r\nof a third party to the lis, namely, the child.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>36. Therefore, I concur wholeheartedly with my learned sister\r\nthat the Family Court as well as the High Court were wrong in\r\nallowing the application of the respondent for subjecting the child\r\nto DNA test. Therefore, the appeal deserves to be allowed and\r\naccordingly it is allowed. However, this shall not preclude the\r\nrespondent-husband from leading any other evidence to establish\r\nthe allegations made by him against the appellant in the petition\r\nfor divorce.</b></span></p>', 'f9f54813673b5f16709e7040ab3679b0.jpeg', '1c2b85299be804d1912baaa2ac5e3038.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-22', 1, '', '', '2023-02-21 16:03:50', '2023-02-22 13:13:25'),
(2712, 'k5wFN94vyW5GfKqXJWJTl2Ndd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Criminal trial. In appropriate cases, the Court shall suo moto summon the document which is in possession of any of the parties under Section 91 of Cr.P.C. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kanthamma Vs Pradeep B Ranka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 1925 of 2022 decided on 2 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Natarajan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This petition is filed by petitioner-complainant under\r\nSection 482 Cr.P.C. for setting aside the order passed by\r\nthe XXX Additional Chief Metropolitan Magistrate,\r\nBengaluru in C.C. No.20748/2015 for having rejected the\r\napplication filed under Section 311 of Cr.P.C. seeking\r\npermission to lead further evidence of P.W.1.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">5. Having heard learned counsel for the petitioner,\r\nperused the records, which reveals, especially, the\r\ndeposition of P.W.1, the present petitioner deposed in C.C.\r\nNo.20748/2015. At the end of cross examination of\r\nP.W.1, a question was posed by learned counsel for\r\naccused to P.W.1 that, whether she was having </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">authenticated Ex.P.4-genealogical tree. For that, she\r\nanswered \'yes\' and she said that there was no impediment\r\nfor her to produce the same. The learned counsel for the\r\npetitioner submits that with regard to production of the\r\nsaid authenticated genealogical tree, it was produced in\r\nrevision petition.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 6. Considering the facts and circumstances of the\r\ncase, no doubt Section 311 of Cr.P.C. empowers the trial\r\nCourt to summon the witnesses for the purpose of\r\nexamination/re-examination/cross examination for\r\nproduction of documents. Here, the petitioner ought to\r\nhave invoked Section 91 of Cr.P.C. instead of Section 311\r\nof Cr.P.C. The case is based upon the private complaint\r\nand not based upon the charge sheet. Such being the\r\ncase, the document produced by complainant was rejected\r\nby learned counsel for accused and if it is not considered\r\nby the trial Court, it would indicate an adverse inference\r\nagainst the petitioner-complainant\'s case. Such being the\r\ncase, trial Court ought to have allowed the petitioner for</span><span style=\"font-size: 12pt;\">  </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">re-examination / further examination under Section 311 of\r\nCr.P.C.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n 7. Further, the trial Court/investigation officer/enquiry\r\nofficer is empowered to summon the document from any\r\nperson who is in possession of the same, under Section 91\r\nof Cr.P.C. Such being the case, if necessary, the Court\r\ncan suo moto summon the document which is in\r\npossession of any of the parties.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n 8. Accordingly, the petition is allowed. </b></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>The order of\r\nthe trial Court dismissing the application filed by the\r\npetitioner-complainant under Section 311 of Cr.P.C. is set\r\naside. The petitioner-complainant is directed to file an\r\napplication under Section 91 of Cr.P.C. for production of\r\nthe document and the trial Court shall consider and\r\ndispose of the same, in accordance with law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0dcb30c604e554ad82804f0e32a5238c.JPG', 'd02bb8bdfdac149bfca0f3ed5f7a36ae.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-22', 1, '', '', '2023-02-21 16:58:03', '2023-02-22 10:43:04'),
(2713, 'yac9TIe4JwB5vLqBYkQQGcIny', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'In a suit for partition filed by woman against her father/brother based on amended Section 6 Hindu Succession Act, joint family properties given to her husband as dowry can also be included. Karnataka High Court.', '<p><span style=\"font-weight: bolder;\">Hemalatha vs Venkatesh and others.&nbsp;<br></span></p><p><span style=\"font-weight: bolder;\">Writ Petition 39982 of 2018 decided on 16 February 2022.</span></p><p><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice Suraj Govindaraj.</span></p><p><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Whether in a suit for partition, the properties which had been given as dowry or otherwise at the time of marriage of the daughter plaintiff, who is claiming a right of partition under Section 6 of the Hindu Succession Act, would be amenable for partition and the same would be included in a suit for partition?</span></p><p><span style=\"font-weight: bolder;\">13.<span style=\"white-space: pre;\">	</span>The contention of defendant No.4 - applicant before the Trial Court is that item Nos.9 and 10 properties, which were sought to be added to the plaint by way of an amendment were given as dowry to the family of the 1st plaintiff during the time of her marriage. At the request of in-laws of the 1st plaintiff, a nominal sale deed was executed in favour of the father-in-law of the 1st plaintiff. As regards item Nos.10 a nominal sale deed was executed in favour of the husband of the 1st plaintiff.&nbsp;</span></p><p><span style=\"font-weight: bolder;\">14.<span style=\"white-space: pre;\">	</span>The suit, admittedly, has been filed for partition claiming a right in the joint family properties by virtue of the amendment to Section 6 of the Hindu Succession Act. The said amendment being a salutary one having been brought in to provide equal rights to a woman in the joint family properties.</span></p><p><span style=\"font-weight: bolder;\">15.<span style=\"white-space: pre;\">	</span>In the present case, interestingly the claim of the 4th defendant is that certain joint family properties had been given to the 1st plaintiff and her family members as dowry during her marriage. That is to say that a portion of the joint family property was made available for plaintiff No.1 as either dowry/gift or share in the property at the time of marriage. This court at present is not concerned with the offences of Dowry if any, there being no complaint in regard thereto.</span></p><p><span style=\"font-weight: bolder;\">16.<span style=\"white-space: pre;\">	</span>Such being the case, I am of the considered opinion that a beneficiary of Section 6 of the Hindu Succession Act cannot claim a benefit by way of partition as regard to joint family properties without reference to the properties already received by her at the time of marriage as dowry/gift or otherwise. The said properties at an undisputed point of time forming part of the joint family property and the plaintiff having received it, the same would also have to be made part of the partition suit in order for the partition to be equitable hence, those properties would also be amenable to partition. Hence, the contention of Sri.A.Nagarajappa, learned counsel for the petitioner that these properties were independently purchased (Item no. 9 from Defendant no. 9 and Item No. 10 from third parties) and would not be amenable for partition is an issue that would have to be decided after trial and cannot be adjudicated upon at this stage. The assertions clearly and categorically made is that the 1st defendant had executed nominal sale deeds in respect of item Nos.9 and 10 properties.</span></p><p><span style=\"font-weight: bolder;\">17.<span style=\"white-space: pre;\">	</span>It is for the parties to establish during the course of trial as to whether the properties belonged to the joint family or not. If the properties belong to the joint family, then the same would be amenable for partition. If the plaintiffs were able to establish that the properties had been independently purchased out of their own funds and the said properties are not joint family properties, then the same would not be amenable for partition.</span></p><p><span style=\"font-weight: bolder;\">18.<span style=\"white-space: pre;\">	</span>This aspect would have to be ascertained by the Trial Court only after trial. Hence, I answer Point No.1 by holding that in a suit for partition, the properties which had been given as dowry or otherwise at the time of marriage of the daughter plaintiff, claiming a right of partition under Section 6 of the Hindu Succession Act, would be amenable for partition and the same would have to be included in a suit for partition.</span></p>', '154bb59058893391822a627add08da98.JPG', '277fe6bb5578af11497adc221f853761.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-21', 1, '', '', '2023-02-21 17:05:08', '2023-02-21 12:27:39');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2717, 'kFiEttGaoByhXsvqjeTZJiL0E', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'DNA paternity test. No adverse inference can be raised against mother on her declining to subject her child to a paternity test. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Aparna Ajinkya Firodia Vs Ajinkya Arun Firodia.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 1308 of 2023 decided on 20 February 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice B.V. Nagarathna and Justice V. Ramasubramanian. </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">1. While I am entirely in agreement with the opinion wellcrafted by my learned sister Hon’ble Mrs. Justice B.V. Nagarathna, I thought that two aspects of the matter require little more emphasis. Hence a separate but concurring opinion.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">21. But we do not know how a mix up of Section 112 and Section 114 is possible. Section 112 deals with something where the existence of a fact is taken to be conclusive proof, without any possibility for the disputing party to lead evidence for disproving <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the same. The only escape route or emergency exit as we may call it, available for a person to deprive another person of the benefit of Section 112, is to show that the parties to the marriage did not have access to each other at the time when the child could have been begotten. Section 114 has nothing to do with, nor is in connection with conclusive proof of legitimacy dealt with by Section 112. Both Section 112 and Section 114 fall under different compartments. The word “presumption” itself is not used in Section 112. The expression used in Section 112 is “conclusive proof”. Therefore, by virtue of Section 4, no evidence shall be allowed to be given for the purpose of disproving it.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">22. As we have indicated elsewhere, if one of the parties to the marriage shows that he had no access to the other at the time when the child could have been begotten, then Section 112 itself does not get attracted. On the contrary, if the parties have had access to each other at the relevant point of time, the fate of the question relating to legitimacy is sealed.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">23. We are not suggesting for a moment that Section 112 acts as a shield even for the alleged adulterous conduct on the part of the wife. All that we say is that anything that would destroy the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">legal effect of Section 112 cannot be used by the respondent, on the ground that the same is being done to achieve another result.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">25. The pleading of the respondent extracted above to the effect that after September 2016, he has had no physical relationship with the appellant-wife means that he has at least had access to the wife both at the time when the child was begotten and for a full period of three years even thereafter. Therefore, the conclusive proof under Section 112 has actually come into play in this case.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">26. There is another fallacy in the argument of the respondent. It is the contention of the respondent that he is seeking an <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">adverse inference to be drawn only as against the wife under Section 114(h), upon the refusal of the wife to subject the child to DNA test. But the stage at which the wife may refuse to subject the child to DNA, would arise only after the Court comes to the conclusion that a DNA test should be ordered. To put in simple terms, there are three stages in the process, namely, (i) consideration by the Court, of the question whether to order DNA test or not; (ii) passing an order directing DNA test, after such consideration; and (iii) the decision of the wife to comply or not, with the order so passed. The respondent should first cross the outer fence namely whether a DNA test can be ordered or not. It is only after he convinces the Court to order DNA test and successfully secures an order that he can move to the inner fence, regarding the willingness of the wife to abide by the order. It is only at that stage that the respondent can, if at all, seek refuge under Section 114(h). </span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">28. Coming to the presumption under Section 114(h), the contention of the respondent is obviously misplaced. An adverse inference, in law, can be drawn only against the person who refuses to answer a question. In the case on hand, the appellant has a dual role to play, namely, that of the respondent’s wife and that of Master Arjun’s mother. If the appellant does or refuses to do something, for the purpose of deriving a benefit to herself, an adverse inference can be drawn against her. But in her capacity as a mother and natural guardian if the appellant refuses to subject the child to DNA test for the protection of the interests and welfare of the child, no adverse inference of adultery can be drawn against her. By refusing to subject the child to DNA test, she is actually protecting the best interests of the child. For protecting the best interests of the child, the appellant-wife may be rewarded, but not punished with an adverse inference. By taking recourse to Section 114(h), the respondent cannot throw the appellant to a catch-22 situation.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">29. Therefore, Section 114(h) has no application to a case where a mother refuses to make the child undergo DNA test. It is to be remembered that the object of conducting a DNA test on the child is primarily to show that the respondent was not the biological <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">father. Once that fact is established, it merely follows as a corollary that the appellant was living in an adulterous relationship.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">30. What comes out of a DNA test, as the main product, is the paternity of the child, which is subjected to a test. Incidentally, the adulterous conduct of the wife also stands established, as a by-product, through the very same process. To say that the wife should allow the child to undergo the DNA test, to enable the husband to have the benefit of both the product and the byproduct or in the alternative the wife should allow the husband to have the benefit of the by-product by invoking Section 114, if she chooses not to subject the child to DNA test, is really to leave the choice between the devil and the deep sea to the wife.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">31. In fact, in cases of this nature the Court must bear in mind that Section 114 uses only the word “may” and not the word “shall”. Therefore, the constraints articulated in the exposition to Illustration (h) under Section 114 may dissuade the Court not to presume at all.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">32. Hence, we reject the contention of the respondent that what is sought to be invoked is only Section 114(h) and not Section 112.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">33. As rightly contended by Shri Huzefa Ahmadi, learned senior counsel for the appellant, the question as to whether a DNA test should be permitted on the child, is to be analysed through the prism of the child and not through the prism of the parents. The child cannot be used as a pawn to show that the mother of the child was living in adultery. It is always open to the respondenthusband to prove by other evidence, the adulterous conduct of the wife, but the child’s right to identity should not be allowed to be sacrificed.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">34. It is contended by Mr. Kapil Sibal, learned senior counsel for the respondent that after all the endeavour of every Court should be to find the truth and that every party to a litigation is entitled to produce the best evidence. Enabling the party to produce the best of evidence, is part and parcel of right to fair trial. Therefore, it is contended by learned senior counsel that the refusal to subject the child to DNA test would infringe upon the respondent’s right to fair trial. To buttress the contention that the right to privacy of an individual must yield to the right to fair trial of another, reliance is placed upon the decision of this Court in Sahara India Real Estate Corporation Limited & Ors. vs. Securities and Exchange Board of India & Anr</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">35. Attractive as it may seem at first blush, the said argument does not carry any legal weight. The lis in these cases is between the parties to a marriage. The lis is not between one of the parties to the marriage and the child whose paternity is questioned. To enable one of the parties to the marriage to have the benefit of fair trial, the Court cannot sacrifice the rights and best interests of a third party to the lis, namely, the child.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">36. Therefore, I concur wholeheartedly with my learned sister that the Family Court as well as the High Court were wrong in allowing the application of the respondent for subjecting the child to DNA test. Therefore, the appeal deserves to be allowed and accordingly it is allowed. However, this shall not preclude the respondent-husband from leading any other evidence to establish the allegations made by him against the appellant in the petition for divorce.</span></span></p>', 'ff350a766404033557f8a6e953360b47.jpeg', '794205e9ba2fb9ee28d97515c80906b9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-24', 1, '', '', '2023-02-22 13:15:04', '2023-02-24 06:53:44'),
(2718, 'WtUUXeZ8GagOvhzWtGiA5ZZmP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Refusal to pay Grant-in-Aid to educational institution on the Principal having reached to the age of superannuation does not amount to violation of Article 30(1) of the Constitution. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State of Gujarat and others Vs H.B. Kapadia Education Trust and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2837 of 2022 decided on 21 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Dinesh Maheshwari and Justice Bela M. Trivedi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The Respondent No. 1 (original writ petitioner) a Jain Minority\r\nInstitution, was running a government aided school in the name of\r\n“The New High School”, in which Shri H.H. Kapadia was appointed <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as the Principal of the school. Mr. Kapadia having attained the age\r\nof 58 years on 22.07.1999, the Respondent No. 1-Institute sought\r\na permission from the Government to continue him as the\r\nPrincipal. The DEO granted the permission to continue him as the\r\nPrincipal upto the age of 60 years on the condition that his salary\r\nwould be paid by the Institution. The Respondent No. 1 thereafter\r\naddressed a letter dated 16.04.2001 to the DEO seeking extension\r\nof service of Mr. Kapadia beyond the age of 60 years, which came\r\nto be rejected by the DEO vide the letter dated 18.06.2001. The\r\nsaid two decisions of the DEO came to be challenged by the\r\nRespondent No. 1 by filing the Writ petition being Special Civil\r\nApplication No. 3250/2001 before the High Court of Gujarat. The\r\nSingle Bench vide the judgment and order dated 24.06.2016\r\nallowed the said writ petition and held that the action on the part of\r\nthe Respondents (the appellants herein) in stopping the grant was\r\nviolative of Article 30(1) of the Constitution of India and that the\r\nWrit Petitioner-Institute had a right to continue Mr. Kapadia as the\r\nPrincipal of the school beyond the age of 60 years. It was further\r\nheld that the respondents (the appellants herein) were obliged to\r\npay the Grant-in-Aid towards his salary. The Single Bench\r\ntherefore directed the appellant authorities to calculate the\r\namounts towards the arrears of grant for the period between 2001 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and 2012 (as the school was no longer functional since the year\r\n2012) and to pay the requisite amount to the management of the\r\nschool within a period of 3 months of the order. The aggrieved\r\nappellants had preferred an appeal being the LPA No. 175 of 2017\r\nbefore the Division Bench, which came to be dismissed vide the\r\nimpugned order dated 02.04.2018.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. The short question which falls for consideration before this Court is\r\nwhether the decision of the appellants in not providing the aid to\r\nthe respondents towards the salary of the principal of the\r\nrespondent no. 2 - school on his attaining the age of\r\nsuperannuation as per the Grant-in-aid Code, could be said to be\r\narbitrary or violative of Article 30(1) of the Constitution of India?</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. From the above stated provisions, it emerges that as per\r\nRegulation 42 of the said Regulations, the provisions contained in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the said Regulations framed under the said Act prevail over those\r\nprovisions contained in the Grant-in-Aid Code published under the\r\ngovernment notification dated 22.04.1964, insofar as they relate to\r\nany matter provided in the said Regulations. It further emerges that\r\nas per Regulation 43 of the said Regulations, Regulation 36\r\npertaining to the age of superannuation is not applicable to the\r\neducational institution established and administered by a minority,\r\nwhether based on religion or language. Therefore, the age of\r\nsuperannuation of an employee of a registered Secondary School\r\nas mentioned in Regulation 36 would not be applicable to the\r\nemployee or teacher of an educational institution established and\r\nadministered by a minority. The combined reading of Regulations\r\n42 and 43 of the said Regulations makes it clear that Regulation\r\n36 would not apply to any educational institutions established and\r\nadministered by minority, and therefore the matter pertaining to the\r\nage of superannuation of the employees of registered Secondary\r\nSchool established and administered by minority, availing the\r\nGrant-in-Aid could not be said to have been provided under the\r\nsaid Regulations. The necessary corollary would be that the said\r\nRegulation 36 being not applicable to the minority educational\r\ninstitution, the provisions contained in the Grant-in-Aid Code\r\npertaining to the age of superannuation would be applicable to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">such minority institutions availing the grant from the State\r\nGovernment. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The provisions contained in the said Grant-in-Aid Code pertaining\r\nto the recognition, eligibility criteria, the procedure for making\r\napplication to the government for receiving Grant-in-Aid etc. are\r\napplicable to all the secondary schools whether established and\r\nadministered by the minority or not and the respondents could not\r\nhave claimed any right to receive the aid from the Government\r\ndehors the provisions of the Grant-in-Aid Code. If the appellants\r\ntherefore had refused to pay the Grant-in-Aid to the respondents,\r\non the Principal having reached to the age of superannuation, it\r\ncould not be said by any stretch of imagination that the appellants\r\nhad interfered with the affairs of the respondents or had violated\r\nArticle 30(1) of the Constitution. As held by the Constitution Bench\r\nin case of T.M.A. Pai Foundation and Others vs. State of\r\nKarnataka and Others1\r\n, the right under Article 30(1) is not an\r\nabsolute right above the law, and that the provisions for the grant\r\nor non-grant in aid to the educational institutions, whether it is\r\nmajority-run institution or a minority-run institution, have to be\r\nuniformly applied. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. In light of the afore-stated legal position, we are of the opinion that\r\nthe respondent-institution was bound by the provisions contained <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in the Grant-in-Aid Code. There is also nothing on record to show\r\nthat the appellant-State had discriminated against the respondent institution on the ground that it was under the management of a\r\nminority, attracting Article 30(2) of the Constitution of India. The\r\nHigh Court therefore had committed gross error in holding that the\r\nrespondent-institute had a right to continue the Principal of its\r\nschool beyond his age of 60 years, and in directing the appellants\r\nto calculate and pay the requisite amount towards the arrears of\r\ngrant for the period from 2001 to 2012.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. In that view of the matter, the impugned order passed by the\r\nDivision Bench confirming the order passed by the Single Bench\r\nallowing the writ petition filed by the respondent institution is set\r\naside. The present appeal filed by the appellants stands allowed\r\naccordingly</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ea0a51d94f58690c038174efe169a0ff.jpeg', '1994d7f50cc63f574f0c2a55f986bb4e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-23', 1, '', '', '2023-02-22 13:21:04', '2023-02-23 10:40:52'),
(2728, 'FbE5c913Jm3ll7axWRgSvVHbp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Proceedings under Section 79(A) & (B) of the Karnataka Land Reforms Act can NOT be initiated against purchaser of converted agricultural property. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>M/S G.S.G. Realty Vs State of Karnataka and Others.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Writ Petition 18336 of 2021. Decided on 8 October 2021.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Justice Suraj Govindaraj.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">1. The petitioner is before this Court seeking for the </font><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">following reliefs:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>“i) Issue writ of certiorari or similar writ or order or direction to quash the order in Case No.LRF/SR(D)/179/2009-10 dated 16.03.2015 passed by the second respondent at Annexure- F;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">ii) issue a writ of mandamus or similar writ or order or direction declaring that the initiation of proceedings by the second respondent under the provisions of section 79A and 79B of the Land </font><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">Reforms Act in Case No.LRF/SR (D)/179/2009-10 at Annexure-E is without jurisdiction;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>iii) issue any other appropriate writ or order or direction to the respondents deemed fit in the circumstances of the case in the interest of justice and equity”.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. The short question that would arise for consideration of this Court is that whether the proceedings under Section 79(A) & (B) of the Act could be initiated against the person who has purchased a converted property after following necessary procedure under Section 95 of the Karnataka Land Revenue Act, 1964.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. The provisions of Section 79(A) & (B) of the Act deals with purchase of agricultural property by a non agriculturist. The said Sections 79(A) & (B) are reproduced hereunder for easy reference:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">[79A. Acquisition of land by certain persons prohibited. — (1) On and from the commencement of the 3 [the Karnataka Land Reforms Land Reforms [1962: KAR. ACT 10 96 (Amendment) Act, 1995] 3, no person who or a family or a joint family which has an assured annual income of not less than rupees [twenty five lakhs] from sources other than agricultural lands </font><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">shall be entitled to acquire any land whether as land owner, landlord, tenant or mortgagee with possession or otherwise or partly in one capacity and partly in another.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(2) For purposes of sub-section (1)—</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">(i) the aggregate income of all the members of a </font><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">family or a joint family from sources other than agricultural land shall be deemed to be income of the family or joint family, as the case may be, from such sources;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii) a person or a family or a joint family shall be deemed to have an assured annual income of not less than [rupees twenty five lakhs] from sources other than agricultural land on any day if such person or family or joint family had an average annual income of not less than [rupees twenty-five lakhs] from such sources during a period of five consecutive years preceding such day.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">Explanation.— A person who or a family or a joint family which has been assessed to income tax under the Income Tax Act, 1961 (Central Act 43 of 1961) on an yearly total income of not less than [rupees twenty five lakhs] for five consecutive years shall be deemed to have an average annual income of not less than [rupees twenty five lakhs] from sources other than </font><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">agricultural lands.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(3) Every acquisition of land otherwise than by way of inheritance or bequest in contravention of this section shall be null and void.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(4) Where a person acquires land in contravention of sub-section (1) or acquires it by bequest or inheritance he shall, within ninety days from the date of acquisition, furnish to the Tahsildar having jurisdiction over the Taluk where the land acquired or the greater part of it is situated a declaration containing the following particulars, namely:—</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i) particulars of all lands;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">(ii) the average annual income of himself or the </font><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">family;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iii) such other particulars as may be prescribed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(5) The Tahsildar shall, on receipt of the declaration under sub-section (4) and after such enquiry as may be prescribed send a statement containing the prescribed particulars relating to such land to the Deputy Commissioner who shall, by notification, declare that with effect from such date as may be specified in the notification, such land shall stand transferred to and vest in the State Government without further assurance free from all encumbrances. From the date specified in such notification the Deputy Commissioner may take possession of such land in such manner as may be prescribed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(6) For the land vesting in the State Government under sub-section (5), where the acquisition of the land was by bequest or inheritance, an amount as specified in section 72 shall be paid and where the acquisition was otherwise than by bequest or inheritance, [no amount] shall be paid. 79B. Prohibition of holding agricultural land by certain persons. —</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(1) With effect on and from the date of commencement of the Amendment Act, except as otherwise provided in this Act,—</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(a) no person other than a person cultivating land personally shall be entitled to hold land; and</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(b) it shall not be lawful for,-</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i) an educational, religious or charitable institution or society or trust, other than an institution or society or trust referred to in sub- section (7) of section 63, capable of holding property;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii) a company;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iii) an association or other body of individuals not being a joint family, whether incorporated or not; or</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iv) a co-operative society other than a cooperative farm, to hold any land.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(2) Every such institution, society, trust, company, association, body or co-operative society,—</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(a) which holds lands on the date of commencement of the Amendment Act and section (1), shall, within ninety days from the said date, furnish to the Tahsildar within whose jurisdiction the greater part of such land is situated a declaration containing the particulars of such land and such other particulars as may prescribed; and (b) which acquires such land after the said date shall also furnish a similar declaration within the prescribed period.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">(3) The Tahsildar shall, on receipt of the declaration under sub-section (2) and after such </font><font face=\"Calibri, sans-serif\" style=\"font-size: 1rem;\">enquiry as may be prescribed, send a statement containing the prescribed particulars relating to such land to the Deputy Commissioner who shall, by notification, declare that such land shall </font><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">vest in the State Government free from all encumbrances and take possession thereof in the prescribed manner.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(4) In respect of the land vesting in the State Government under this section an amount as specified in section 72 shall be paid.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Explanation.—For purposes of this section it shall be presumed that a land is held by an institution, trust, company, association or body where it is held by an individual on its behalf”</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b>10. On a reading and appreciating the above said provision, it is ex-facie clear that said proviso would only apply if the land is agriculture in nature and purchased by nonagricultural subject to income of non-agricultural being higher than that prescribed under the said provision.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\" style=\"font-size: 1rem;\">11. In the instant case, the official memorandum has been issued on 18.10.2008 converting the above property from agricultural to non-agricultural residential use. It is only </font><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">thereafter, that M/s Sahara Prime City Limited., purchased the property on 22.10.2008. Thus violation which is being alleged to be done by respondent No.3 vide report dated 30.04.2009 being as regards purchase by M/s Sahara Prime City Limited., on 22.10.2008 would not come within the purview of the proviso to Section 79(A) & (B) of the Act since the property had already been converted on 18.10.2008.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">12. In view thereof, the petition is allowed. Certiorari is issued. Order dated 16.03.2015 passed by respondent No.2 is quashed.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\" style=\"font-size: 1rem;\">13. Consequently, the entry made in the name of the State in the revenue records though academic since the property is converted, for the purpose of maintenance of proper </font><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">records is directed to be removed and the name of the owner i.e., Mr. Mahesh to be added in the RTC, who was the owner of the property at the time of Conversion.</span></b></p>', '6a7dcd94dbbe75009d91a3c540c7af55.JPG', '7356b6bab73cca50cba63c4dc4ffe157.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-24', 1, '', '', '2023-02-23 22:50:45', '2023-02-24 03:18:13'),
(2729, 'xCSoem4DxeeJNMuqD2YlyMe56', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka SC-ST PTCL Act. Conversion of land for non-agricultural purposes will operate as prior permission to sell only if the land is converted by the original grantee and not by the purchaser. Karnataka High Court.', '<h4><b>K.T.Manjunath and others vs The State of Karnataka and others.</b></h4><h4><b>Writ Petition 6515 of 2019 decided on 12 March 2021.</b></h4><h4><b>Justice R. Devdas.</b></h4><h4><b><br>10. The contradictory decisions on the question as to whether an order of conversion issued under Section 95 of the KLR Act could be considered as ‘alienation’ or ‘transfer’ under the PTCL Act, need not detain this Court in the present facts and circumstances of this case.&nbsp;<span style=\"background-color: rgb(255, 255, 0);\">As rightly submitted by the learned counsel for the private respondents, in the instant case, the land was not converted by the original grantee. It was got converted by the purchaser Sri K.V.Krishnappa who thereafter sold the converted land in favour of the petitioners herein.&nbsp;</span>Even the decision in The Tibetian Childrens Village in W.P.No.15802/2007 disposed of 07.04.2017, the learned counsel submits that this Court has held that after a granted land is converted under Section 95 of the Karnataka Land Revenue Act, there would be deemed alienation and consequently the land does not remain as granted land as defined under the provisions of the PTCL Act and therefore the Assistant Commissioner should have rejected the application on the ground that the land lost the character of agricultural land or granted land by virtue of the alienation/conversion order passed by the competent authority and therefore the Assistant Commissioner should have rejected the application. The learned counsel would further submit that the decision in the case of the Tibetian Childrens Village was upheld by the Division Bench in the case of Smt.Ningamma /vs./ The Tibetian Childrens Village in W.A.No.4092/2017 decided on 09.04.2009. will not come to the rescue of the petitioners for the very same reason that if the subsequent purchaser gets the land converted from agricultural to non- agricultural purposes, the authorities while considering a case under the provisions of the PTCL act will not be bound by the subsequent developments. If it is found that the first sale transaction is in violation of the conditions of the grant or without previous permission of the government as stipulated under Section 4(2) of the Act, then the Assistant Commissioner is duty bound to pass an order directing resumption and restoration of the land. The factum of the subsequent conversion of the land will not deter or detain the Assistant Commissioner from passing orders for resumption and restoration of land. It is only in a case where the lands are subsequently acquired by any statutory body or the Government that directions could be issued by the authorities acting under the provisions of the PTCL Act to direct payment of compensation in favour of the original grantee or the legal representatives of the original grantee.</b></h4>', '00edbe4b6381f02bc5f13dad382eafc8.JPG', '56214d982d02c887b838e62d0320b1b6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-24', 1, '', '', '2023-02-24 13:26:56', '2023-02-24 13:26:56'),
(2732, 'gg6vPsYwVkwsGJw0sjHBetKes', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 125. Though second marriage during first marriage is nullity, if the husband married again by concealing first marriage, the second wife is also entitled to maintenance. Karnataka High Court.', '<h4><b>Belakerappa vs Meenakshi.&nbsp;</b></h4><h4><b>Revision Petition Family Court 87 of 2016 decided on 25 March 2021.&nbsp;</b></h4><h4><b>Justice H.B. Prabhakara Sastry.&nbsp;</b></h4><h4><b>The present respondent as the petitioner in C. Misc. No.355/2010 had filed a petition under Section 125&nbsp; of Code of Criminal Procedure against the present petitioner arraigning him as respondent in the Court of V Addl. Prl. Judge, Family Court at Bengaluru seeking a maintenance of `25,000/-&nbsp; per&nbsp; month&nbsp; to&nbsp; her&nbsp; from&nbsp; the&nbsp; respondent&nbsp; and `10,000/- towards litigation expenses.</b></h4><h4><b>6. Learned counsel for the petitioner in his arguments submitted that the Trial Court did not properly parties. He submitted that undue reliance was given on&nbsp; the evidence of P.W.2 and exhibits P3 and P4, the photographs. He also submitted that admittedly the petitioner herein was already married prior to his alleged marriage with the present respondent. As such,&nbsp; the&nbsp; alleged second marriage since being a void marriage, the respondent herein being the alleged second wife, she&nbsp; is&nbsp; not entitled for maintenance.&nbsp; In his support, he relied&nbsp; upon two Judgments of the Hon’ble Apex Court in Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav and Another reported in (1988) 1 SCC 530 and Badshah Vs. Urmila Badshah Godse and Another reported in (2014) 1 SCC 188.</b></h4><h4><b>7. Learned counsel for the respondent in his arguments submitted that by virtue of the marriage invitation card and evidence of P.W.2 and also the school progress cards, the marital relationship between the&nbsp; parties stands proved and the present petitioner has failed&nbsp; to make out a prima facie case. He further submitted that under Section 125 of Cr.P.C., like a Civil Court, a probe regarding the marriage need not be conducted, a prima facie case is sufficient. In his support, he relied upon the Judgment of Hon’ble Apex Court in Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit&nbsp; and&nbsp; Another&nbsp; reported in (1999) 7 SCC 675.8. The only disputed fact between the parties is the alleged marriage&nbsp; which&nbsp; according&nbsp; to&nbsp; the&nbsp; petitioner&nbsp; in&nbsp; the&nbsp; &nbsp;Family&nbsp; court&nbsp; (alleged&nbsp; wife)&nbsp; has&nbsp; taken&nbsp; place on 03.06.1982 with the respondent. The evidence of the petitioner that she was neglected and deprived of essentials in life by her husband i.e. the respondent is not specifically denied or disputed from the respondent. No argument on the said aspect and also regarding the quantum of maintenance was addressed by the learned counsel for the present petitioner. As such, the finding of the Family court about the entitlement of the petitioner before it for maintenance and the quantum of maintenance does not warrant any interference at the hands of this Court.</b></h4><h4><b>Accordingly, I proceed to pass the following:<br><br></b></h4><h4><b>ORDER<br>The petition stands dismissed as devoid of merit.&nbsp;</b></h4>', '915a5133bdcaeb08fb3c81cfb6d13ddb.jpeg', '20a63f5dc8c7928ca537266eb4def0cf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-27', 1, '', '', '2023-02-27 10:09:56', '2023-02-27 10:09:56');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2739, 'GNGySBcAcVVuNMZq14dtnt4GN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land acquisition. If compensation of some landowners is enhanced, other landowners under same notification are automatically entitled to enhanced Compensation. Duty of the State to notify all other landowners about the enhancement. Karnataka High Court. ', '<h4><span style=\"font-weight: bolder;\">Chandrakanth vs The Special Land Acquisition Officer and another.</span></h4><h4><span style=\"font-weight: bolder;\">Miscellaneous Second Appeal 200186 of 2019 decided on 11 February 2021.</span></h4><h4><span style=\"font-weight: bolder;\">Justice Suraj Govindaraj.&nbsp;</span></h4><h4><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\"><span style=\"font-weight: bolder;\"><br></span></span></h4><h4><span style=\"font-weight: bolder;\"><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif);\">1. The Appellant is before this Court seeking for setting aside the Judgment and award dated 02.08.2014 passed by the III Additional District Judge at Gulbarga in LAC No.100/2012 as also the Judgment dated 30.07.2019 passed in Misc. (Review petition) No.30/2019 by the III Additional District and Sessions&nbsp; Judge, Kalaburgi, and consequently for modification of the said Judgment by allowing the appeal by&nbsp;</span>enhancement of Compensation to Rs.2,15,800/- per acre for wetland and from Rs.80,320/- per acre as awarded by the lower appellate Court with all consequential benefits and cost.</span></h4><h4><span style=\"font-weight: bolder;\"><br></span></h4><h4><span style=\"font-weight: bolder;\">10. The Points that would arise for determination in the present matter are:</span></h4><h4><span style=\"font-weight: bolder;\">10.1. Whether different amounts of Compensation can be awarded to similar land acquired under the same notification?<br></span></h4><h4><span style=\"font-weight: bolder;\">10.2. Whether awardal of different amount of Compensation for lands acquired under the same notification would be discriminatory?<br></span></h4><h4><span style=\"font-weight: bolder;\">10.3. In case the Compensation of some landowners is enhanced, would other landowners of lands acquired under&nbsp; the same notification be automatically entitled to the enhanced Compensation?<br></span></h4><h4><span style=\"font-weight: bolder;\"><br>Points 1 &amp; 2.&nbsp;<br>12.2. There could be various lands belonging to different persons which could be acquired under the same notification for a similar purpose or similar lands could be acquired for different purposes. We are not in this matter concerned with land acquired for different purposes.12.3.<span style=\"white-space: pre;\">	</span>The question here is whether the different lands acquired under the same notification for the same purposes could be awarded different Compensation. This aspect is no longer res integra. The Hon’ble Apex Court Narendra and other vs. State of Uttar Pradesh and others (2017) 9 SCC 426&nbsp;<br></span></h4><h4><span style=\"font-weight: bolder;\">12.4.<span style=\"white-space: pre;\">	</span>A perusal of the said para would indicate that not only it is an aspect of good governance that fair Compensation is determined judicially, and all landowners whose land has been taken away by the same notification should&nbsp; become beneficiary thereof. But that failing to do so would also amount to discrimination by giving different treatment to the persons though identically situated.<br></span></h4><h4><span style=\"font-weight: bolder;\">12.5.<span style=\"white-space: pre;\">	</span>Thus applying the above dicta as also in my considered opinion, if different lands are Thus applying the above dicta as also in my considered opinion, if different lands are acquired under the same notification, there cannot be different Compensation awarded for those lands. The Compensation which is required to be awarded to all the lands under the same notification, which are similarly situated, would have to be identical. If there is a difference in the Compensation awarded, the same would come under the mischief of Article 14, amounting to discrimination of similarly situated persons. Of course, the above is as regards the base compensation towards the lands, Compensation towards any improvements to the land, standing crops etc., would have to be treated on a case to case basis.<br></span></h4><h4><span style=\"font-weight: bolder;\">12.6.<span style=\"white-space: pre;\">	</span>Hence, I answer Point No.1 by holding that<span style=\"white-space: pre;\">	</span>different<span style=\"white-space: pre;\">	</span>amounts<span style=\"white-space: pre;\">	</span>of Compensation cannot be awarded to similar land acquired under the same notification.<br></span></h4><h4><span style=\"font-weight: bolder;\">12.7. I answer Point No.2 by holding that awardal of different amount of Compensation for lands acquired under same notification<span style=\"white-space: pre;\">	</span>would be discriminatory.<br></span></h4><h4><span style=\"font-weight: bolder;\">13. Answer to Point No.3: In case the Compensation of some landowners is enhanced, would other landowners of lands acquired under the same notification be automatically entitled to the enhanced Compensation?<br></span></h4><h4><span style=\"font-weight: bolder;\">13.1.<span style=\"white-space: pre;\">	</span>It is not in every case that each of the landowners would be able to approach the Reference Court for enhancement of Compensation than that awarded by the Land Acquisition Officer.<br></span></h4><h4><span style=\"font-weight: bolder;\">13.2.<span style=\"white-space: pre;\">	</span>The financial situation, the societal background, etc., of each of the persons whose land has been acquired, could be different, and there may be various aspects that would hinder or come in the way of&nbsp; the landowner approaching the Reference Court seeking for enhancement of Compensation, more so when in our country, the cost of litigation is also high, and access to Courts is also limited.<br>13.3.<span style=\"white-space: pre;\">	</span>Many a time, the person who has lost the land would probably not want to go to&nbsp; Court and spend more money on the probabilities of enhanced Compensation being awarded and would probably wait in the sidelines to see if anyone else were to approach a court and succeed in such a matter.<br></span></h4><h4><span style=\"font-weight: bolder;\">13.5.<span style=\"white-space: pre;\">	</span>It is with this purport and intent that Section 28A of the LA Act was introduced&nbsp; by way of an amendment.&nbsp;<br></span></h4><h4><span style=\"font-weight: bolder;\">13.8.<span style=\"white-space: pre;\">	</span>Section 28A of the LA Act envisages a person who had not approached the Reference Court initially to approach the Reference Court on enhancement of Compensation on an application filed by&nbsp; any other land owner thereby seeking for redetermination of Compensation in the same manner as that done in respect of a person who had approached the Reference Court and thereby entitling the latter to the same benefit as that received by the person approaching the Reference Court.&nbsp;<br></span></h4><h4><span style=\"font-weight: bolder;\">13.12....equal Compensation for similar acquired land would have to be awarded to all the land losers. In the event of a landowner failing&nbsp; to avail right and remedy under Section 18(1) of the Act, Section 28A(1) grants an extra right and remedy for redetermination of the Compensation payable to him for his land on the basis of the award of the Court giving to an owner of another land covered by the same notification under Section 4(1) under the same award.<br></span></h4><h4><span style=\"font-weight: bolder;\">13.20. A Landowner Appellant who has lost his land either whole or part, cannot be expected to go to the courts and verify if any award is passed by any Court including the enhancement of Compensation awarded. The land loser after&nbsp; having lost his land cannot be required to follow the Court proceedings in other matters so as to ascertain of any enhancement and immediately approach the Court.<br></span></h4><h4><span style=\"font-weight: bolder;\">13.24. Thus, in the above circumstances, filing of an application under Section 28A(1) of the LA Act would generally be a formality to be complied with by the land owner since all the other aspects relating thereto have already been assessed by the Reference Court, a finality has been reached subject to any appeal filed by the State in respect of the said enhanced Compensation awarded by the Reference Court.<br></span></h4><h4><span style=\"font-weight: bolder;\">13.25. In view thereof, I answer point&nbsp; No.3 by holding that in case of the Compensation of some landowners is enhanced, the other landowners of lands acquired under the same notification would automatically be entitled to enhanced Compensation, and it would be the duty of the State to notify all the landowners who have lost their lands under a particular notification of the enhanced Compensation awarded to any other land owner either by the reference court or on an appeal therefrom by the Appellate Courts.<br></span></h4><h4><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif); font-weight: bolder;\">15.4.</span><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif); font-weight: bolder; white-space: pre;\">	</span><span style=\"font-size: 1.5rem; font-family: var(--bs-font-sans-serif); font-weight: bolder;\">Appeal is allowed.&nbsp;</span><br></h4>', '161dce87af16c345c26b39255341dc8f.JPG', '600f083883c8c5d3e7c8b44643aea675.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-28', 1, '', '', '2023-02-28 13:16:45', '2023-02-28 13:16:45'),
(2734, 'gv51pV7WD5umUOA1wUA37J8Fy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bar against grant of bail under Section 45 of the Prevention of Money Laundering Act 2002 applies even to anticipatory bail under Section 438 Cr.PC. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Directorate of Enforcement Vs M. Gopal Reddy and another<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 534 of 2023 decided on 24 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice C.T. Ravikumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 02.03.2021 passed by the High Court of Telangana at Hyderabad in Criminal Petition No. 1148/2021, by which, the High Court has allowed the said bail application and has granted the anticipatory bail in favour of respondent No. 1 herein and has directed to release him on bail in the event of his arrest in connection with F. No. ECIR/HYZO/36/2020 dated 15.12.2020 on the file of the Assistant Director, Enforcement Directorate (hereinafter referred to as the ED), Government of India Hyderabad, which was registered for the offence of money laundering under Section 3 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as the Act, 2002) and punishable under Section 4 of the said Act, the Directorate of Enforcement has preferred the present appeal. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. A FIR was registered by Economic Offences Wing (EOW), Bhopal vide FIR No. 12/2019 dated 10.04.2019 wherein 20 persons/companies were named as suspected in the said scam. M/s Max Mantena Micro JV, Hyderabad was one among them.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 2.1 As per the FIR, the Government of Madhya Pradesh eProcurement Portal was being run by MPSEDC. M/s Antares Systems Limited, Bangalore and M/s Tata Consultancy Services (TCS) were given the contract for the period of 5 years for the maintenance & operation of the said portal. Some of the officials of MPSEDC in collusion with the companies entrusted with maintenance and portal and rigged the bidding process to suit a few private bidders for huge amounts of bribe considerations. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.2 As per the investigating agency, the preliminary investigation by the Police established that various etenders were illegally accessed and bids of a few companies were manipulated to illegally make the bids of those concerns as the lowest one. testing of the portals namely M/s Osmo IT Solutions and M/s Antares Systems Ltd, illegally accessed the e­Tender</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. We have heard learned counsel appearing on behalf of the respective parties at length. At the outset, it is required to be noted that respondent No. 1 is apprehending his arrest in connection with the complaint/case by the ED for the offence of money laundering under Section 3 of the Prevention of Money Laundering Act, 2002 and punishable under Section 4 of the said Act. An enquiry/investigation is going on against respondent No. 1 for the scheduled offence in connection with FIR No. 12/2019. Once the enquiry/investigation against respondent No. 1 is going on for the offence under the Act, 2002, the rigour of Section 45 of the Act, 2002 would be attracted.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5.1 By the impugned judgment and order, while granting anticipatory bail the High Court has observed that the provisions of Section 45 of the Act, 2002 shall not be applicable with respect to the anticipatory bail applications/proceedings under Section 438 Cr.PC. For which the High Court has relied upon the decision of this Court in the case of Nikesh Tarachand Shah (supra). In the case of Dr. V.C. Mohan (supra), this Court has specifically observed and held that it is the wrong understanding that in the case of Nikesh Tarachand Shah (supra) this Court has held that the rigour of Section 45 of the Act, 2002 shall not be applicable to the application under Section 438 Cr. PC. In the case of Dr. V.C. Mohan (supra) in which the decision of this Court in the case of Nikesh Tarachand Shah (supra) was pressed into service, it is specifically observed by this Court that it is one thing to say that Section 45 of the Act, 2002 to offences under the ordinary law would not get attracted but once the prayer for anticipatory bail is made in connection with offence under the Act, 2002, the underlying principles and rigours of Section 45 of the Act, must get triggered – although the application is under Section 438 Cr.PC. Therefore, the observations made by the High Court that the provisions of Section 45 of the Act, 2002 shall not be applicable in connection with an application under Section 438 Cr.PC is just contrary to the decision in the case of Dr. V.C. Mohan (supra) and the same is on misunderstanding of the observations made in the case of Nikesh Tarachand Shah (supra). Once the rigour under Section 45 of the Act, 2002 shall be applicable the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 is unsustainable. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. Even otherwise on merits also, the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 is erroneous and unsustainable. While granting the anticipatory bail to respondent No. 1 the High Court has not at all considered the nature of allegations and seriousness of the offences alleged of money laundering and the offence(s) under the Act, 2002. Looking to the nature of allegations, it can be said that the same can be said to be very serious allegations of money laundering which are required to be investigated thoroughly. As per the investigating agency, they have collected some material connecting respondent No. 1 having taken undue advantage from Srinivas Raju Mantena. From the impugned judgment and order passed by the High Court, it appears that the High Court has considered the matter, as if, it was dealing with the prayer for anticipatory bail in connection with the ordinary offence under IPC. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6.3 From the aforesaid, it can be seen that the High Court has not at all considered the nature of allegations and the seriousness of the offences alleged against respondent No. 1. As per the catena of decision of this Court, more particularly, observed in the case of P. Chidambaram (supra) in case of economic offences, which are having an impact on the society, the Court must be very slow in exercising the discretion under Section 438 of Cr.PC. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. Considering the overall facts and circumstances of the case and the reasoning given by the High Court and as observed hereinabove, the rigour of Section 45 of the Act, 2002 shall be applicable even with respect to the application under Section 438 Cr.PC and therefore, the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 herein in connection with F. No. ECIR/HYZO/36/2020 dated 15.12.2020 is unsustainable. Consequently, the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 is hereby quashed and set aside. Respondent No. 1 be dealt with in accordance with law. However, it is observed and made clear that after respondent No. 1 is arrested, if he files any regular bail application, the same be considered in accordance with law and on its own merits and considering the material collected during enquiry/investigation of the case.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Present appeal is accordingly allowed. No costs. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'eee2994a4de3062aebc892c51c18edeb.jpeg', '2e45436799332dfdf650e342c84105e0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-28', 1, '', '', '2023-02-27 14:28:44', '2023-02-28 06:07:09'),
(2735, 'wx1jqT0RqIlc4fHRZNeCR7zrG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contract Labour (Regulation & Abolition) Act, 1970 & Rules 1971. Notification under Section 10(1) is not a pre-requisite for the Tribunal to decide matters relating to reinstatement or regularization of services of contract labour. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Mysore Electrical Industries Limited Vs Engineering and General Workers Union.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 3788 of 2012 decided on 23 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The employer is an undertaking of State of Karnataka engaged in manufacture and sale of power breakers of various capacities. It has its own service rules, Cadre and Recruitment Rules for appointment of regular employees which is what is alleged to have been followed by the employer.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. The services which are concerned with in the present matter are those related to house-keeping, gardening, loading and unloading which is alleged to require only a few hours a day.   It is on that basis that the employer had entrusted those works to labour contractors for lumpsum amount by entering into contract.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 4. The contractors are alleged to have engaged their own men to carry out the said work. The house- keeping and gardening work was entrusted to “Sri.Shankar Nursery (associated)”, work of loading and unloading was entrusted to “M/s Associated Detective & Security Services”.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9. The matter having been referred to conciliation, the conciliation efforts failed and as such, the State Government in exercise of powers conferred under Section 10(1)(d) of the Industrial Disputes Act, 1947 [for short ‘ID Act’] referred the points of dispute for adjudication to Industrial Tribunal, Bengaluru on 14.12.1999. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>The points that arise for consideration are: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.1. Whether a notification under Section 10(1) of CLRA is a pre-requisite for the Industrial tribunal to have jurisdiction to decide the matter relating to reinstatement, regularization or services of contract labour? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.2. Whether in the event of the contract, arrangement of transaction between the employer and the contractor being found to be sham, camouflage to make payment of lesser amounts to the workman, then what is required to be paid. Could the workmen be directed to be paid the same wages as that paid to other workmen? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.3. Whether the works of house keeping, painter, driver, typist, welder, cook, electrician, packer, loader, unloader, can be said to be perennial work and not temporary work? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.4. Whether the order passed by Industrial tribunal suffers from any legal infirmity requiring interference at the hands of this Court? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.5. What order?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21. ANSWER TO POINT NO.1: Whether a notification under Section 10(1) of CLRA is a pre-requisite for the Industrial tribunal to have jurisdiction to decide the matter relating to reinstatement, regularization or services of contract labour?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>21.1. The contention of Sri.H.N.Muralidhar, learned counsel for the employer is that unless a notification under Section 10(1) of CLRA is issued, the Industrial tribunal would have no jurisdiction over a dispute raised by the alleged contractor.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>21.3. From the above it is clear that it is only the employer who is registered under Section 7 can engage a contractor registered under Section 12. As a corollary if an employer who is not registered under Section 7, then he cannot engage services of a contractor though registered under Section 12 of CLRA and vice versa, that is to say a employer registered under Section 7 cannot engage services of a contractor who is not registered under Section 12 of CLRA. It is therefore, required that both the employer and the contractor are registered under Section 7 and 12 respectively.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>21.7. In the present matter, the facts on record and which are not in dispute indicate that the workman had been engaged by the employer and were working with him, subsequently their services were shifted by the employer to certain agencies without their consent and they were regarded as contract labour. It is also on record that employer has not registered himself under Section 7 of CLRA and the contractor has not registered under Section 12 of CLRA, let alone the labour being registered under the contractor as contract labour. Thereafter the contractor terminated the contract which was accepted by the employer resulting in the workers being without employment. The tribunal has come to a categorical finding that the so-called agreement between the employer and contractor is a sham agreement entered into with the sole purpose and intention of making payment of lesser amount to the workers.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>21.8. On enquiry if the agreement has been produced though it was first contended by Sri.Muralidhar that agreement has been produced, he is unable to show the same.  A perusal of the list of document produced before the Industrial Tribunal would establish that there is no such agreement between the employer and the contractors which has been produced before the Industrial Tribunal. Thus, not only are there no registration under Section 7 and 12 of CLRA, but there is no agreement also between the employer and contractor. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>21.9. In such a situation, it is clear that the claim made by the employer is completely false one and sham. There is no need for this Court to ascertain if the agreement is a camouflage, more so when the agreement itself has not been placed on record. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>21.10. The claim of the employer itself appears to be completely dishonest and such a claim without due compliances appears to be only for the purpose of depriving the workers of their due amounts. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>21.11. Hence, I answer Point No.1 by holding that notification under Section 10(1) of CLRA is not a pre-requisite for the Industrial Tribunal to have a jurisdiction to decide the matters relating to reinstatement or regularization of services of contract labour.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>22.<span style=\"white-space:pre\">	</span>ANSWER TO POINT NO.2:Whether in the event of the contract, arrangement of transaction between the employer and the contractor being found to be sham, camouflage to make payment of lesser amounts to the workman, then what is required to be paid. Could the workmen be directed to be paid the same wages as that paid to other workmen?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b> 22.1. As held in answer to point No.1, the employer is not registered under Section 7, the contractor is not registered under Section 12 and there is no notification under Section 10(1) of CLRA. There is no agreement between the employer and contractor, as also the contractor and the workmen which has been placed on record<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>22.3. The workmen being in employment from the year 1995 onwards, it cannot be said that they lack any qualification. The workmen being in employment from the year 1995 also indicates that there are vacancies. If that be so, the workmen need to be adequately provided for and absorbed and until such absorption would continue to render service as contract labour directly under the employer with the employer making payment of equal pay for equal work as held by this Court in TUMAKURU CITY CORPORATION v. TUMKURU POURA KARMIKARA SANGHA4 case.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>23. ANSWER TO QUESTION NO.3: Whether the works of house keeping, painter, driver, typist, welder, cook, electrician, packer, loader, unloader, can be said to be perennial work and not temporary work?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>23.1. This question is rendered academic on account of finding as regards point Nos.1 and 2. However, the same requires to be answered. The work of house keeping viz. cleaning and other services is required to be discharged on daily basis; in a industry a painter is also required to be at hand since there are various paint jobs which are required to be carried out from time to time; Drivers are required on regular basis for transport of people; a typist would be required on regular basis to type out certain documents; in a large establishment a welder would be required for carrying out repairs; a cook is required on daily basis for preparing food, more so three times a day for all the workmen; a electrician in a industry is a regular feature and required to take care of any electrical issues that arise; an industry manufacturing a product would require packer, loader and unloader on regular basis, firstly to unload any raw material which comes to the factory, secondly to unpack any item received and pack an item to be transported, and load the same into the transport vehicle.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b> 23.2. These jobs profiles being ones whose services are required on a day today basis, as also for months on end. I am of the considered opinion that these jobs are perennial in nature and therefore would not be temporary as contended by Sri.H.N.Muralidhar, learned counsel.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>24.<span style=\"white-space:pre\">	</span>ANSWER TO POINT NO.4:Whether the order passed by Industrial tribunal suffers from any legal infirmity requiring interference at the hands of this Court?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>24.2. The Tribunal has come to a right conclusion that the alleged agreement between the employer and the contractor is sham and camouflage and the workers have been engaged for a long period of time and the instrumentality of contract workers has been used only to deprive them of their just amounts. The interim order having earlier been passed directing the employer to provide work for the workmen and the same not having been provided, the labour court directed the employer to comply with the said order. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>24.3. As afore-observed, the said order could have been better worded, but the essential meaning of the operative portion of the said order, which I can gather from reading of the entire order is that the alleged contract being sham and camouflage, the labour Court instead of directing continuation of service and later absorption has passed a short order, I do not find any infirmity in the same, but, however, I am of the considered opinion that the same is required to be explained which would be done in the operative portion of this order.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>i.<span style=\"white-space:pre\">	</span>The writ petition is dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6f584bccaadfaf8f1b7a1df29f3f5857.JPG', 'fb2fd63602d6eb9958ee4969f3685ba6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-28', 1, '', '', '2023-02-27 15:29:59', '2023-02-28 03:21:55'),
(2736, '7CfyFm9UZudtXoWZKRRqaHsmz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Value Added Tax Act, 2003. Mobile phone chargers sold along with mobile phone in a composite pack attracts tax at the same rate as applicable to mobile phones and cannot be taxed at higher rate as unscheduled goods. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State of Karnataka and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>STRP 8 of 2022 decided on 10 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P.S. Dinesh Kumar and Justice T.G. Shivashankare Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Briefly stated the facts in M/s. Intex Technologies India Ltd. are, it is a registered dealer under the Karnataka Value Added Tax Act, 20032. It is engaged in trading mobile phones, parts and accessories. It sells mobile phones in a composite package which also contains accessories such as headsets, cables, ejection pin, adapter, charger, manual etc. The AO3 passed an order under Section 39(1) of the KVAT Act subjecting to tax, the sales turnover of mobile charger at the rate of 13.5% to 14.5% for A.Y.4 2010-11 to 2013-14. The assessee filed an application for rectification and the AO passed orders under Section 69 of the KVAT Act, rectifying the order by dropping estimated turnover as per the return and books of accounts. The JCCT(A)5 dismissed assessee’s appeal. On further appeal, KAT, by the impugned order, has allowed assessee’s appeal. Feeling aggrieved, the Revenue has preferred these petitions.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>One of the main contentions raised by Revenue is that the decision in Nokia India Case delivered by the Hon’ble Supreme Court is applicable to the present case. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>The issue involved in Nokia India Case was whether mobile charger should be excluded from the entry of concessional rate of tax which applies to cellphones under the Entry 60(6)(g) of Schedule B of the Punjab VAT Act<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>It is relevant to note that the decision in Nokia India Case is based on Entry 60(6)(g) of the Schedule B of the Punjab VAT Act. In the said Entry only cellular phone is defined and accessories are not included. The Hon’ble Supreme Court of India has upheld Revenue’s contention in that case because Entry 60(6)(g) of chedule B of the Punjab VAT Act does not mention accessories for the purpose of taxing the items/product at 4%.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>Para 14 of the judgment in Nokia India Case, clearly indicates that the said decision is based on Entries of the Punjab VAT Act, wherein the prime issue for consideration was whether the mobile charger is an accessory or not. But in the case on hand, the issue involved is, when the mobile phone is sold along with the charger what must be the rate of tax?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>As noticed hereinabove, in Entry No. 60(6)(g) of the Punjab VAT Act, the expression used is ‘cellular telephone’ whereas in the Notification issued under KVAT Act, the words used are ‘and parts thereof’. Further, the parts falling under Heading 8843, 8825, 8527 or 8528 have been specifically excluded. It is relevant to notice that, battery charger which falls under Entry 8504 40 30 under the CET Act and CT Act, has not been excluded. This makes it clear that charger is a composite part in the package. Thus, the intention of the Revenue is unambiguous that the Notification was applicable for telephone sets and parts thereof which includes charger. Therefore, in our considered view, the Entries in Punjab VAT Act and the KVAT Act are different and the Entry under the Punjab VAT Act is limited only to cellular telephones in contradistinction to the Notification under KVAT Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space:pre\">	</span>Therefore, in view of the above, ‘telephone sets’ can be considered as ‘goods put up in sets for retail sale’ under Rule 3(b) of the GRI. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22.<span style=\"white-space:pre\">	</span>Further, Rule 3(b) states that goods put up in sets for retail sale shall be classified as if they consist of the material or component which gives them their essential character. In the present case, the essential character of mobile set is the mobile phone and not the charger. Thus, the classification based on components mentioned above would apply and as per the essential character, the retail set containing of a mobile phone and a mobile charger shall be classifiable as ‘mobile phones’ under heading 8517.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>24.<span style=\"white-space:pre\">	</span>The Assessees’ have rightly canvassed the application of Dominant Intention Test. There can be no doubt that the main intention of a purchaser/seller while buying/selling a ‘Mobile Set’ is to buy/sell the mobile phone and not charger alone. Supply of charger, headset, and ejection pin are incidental to the sale. Therefore, the Dominant Intention Test would apply to the present case and hence, charger cannot be differently taxed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>26.<span style=\"white-space:pre\">	</span>The mobile phone finds its place in III Schedule and taxable at 5% and therefore, the charger which is also sold along with mobile phone in ‘one set’ is together chargable at 5%. This view is in consonance with the law laid down by the Apex Court in CIT Vs. B.C. Srinivasa Setty18, wherein it is held that the charging section and the computation provisions constitute an integrated code and if these two requirements are not jointly present, no tax can be levied or sought to be recovered.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>27.<span style=\"white-space:pre\">	</span>A bare perusal of the Section 4 (charging section) of KVAT Act and Rule 3 (computation provision) of KVAT Rules would clearly indicate that there is no prescribed mechanism provided for determining the value of individual goods in a composite transaction. Thus, in the absence of a valuation mechanism, tax cannot be levied differently on each of the component by separating a single composite package. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>28.<span style=\"white-space:pre\">	</span>In view of the above discussion, we are of the considered view that the definition contained in the Notification issued under the KVAT Act includes the charger which is sold along with the mobile phone in one set and accordingly taxable at 5%.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(a)<span style=\"white-space:pre\">	</span>These revision petitions are dismissed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f4708c2fc1c0b979d834682e909a75c2.JPG', '32df56439220cc2542cc23316aa5fee6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-02', 1, '', '', '2023-02-27 16:01:11', '2023-03-02 10:23:49');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2737, '5FZ6PKP5R9ybFsVoB5dFDMdRW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Trust registered under the Trust Act is entitled to get liquor license under the amended Karnataka Excise (Sale of Indian & Foreign Liquors) Rules, 1968. Karnataka High Court disposes Writ Petition challenging non-inclusion of Trusts. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chikmagalur Golf Club Trust Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 33959 of 2016 decided on 8 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The grievance of the petitioner-trust was that the respondent No.2 had not renewed the existing CL-4 license issued to the petitioner on the ground that the explanation to the Sub-rule (4) of Rule 3 of the Karnataka Excise (Sale Of Indian And Foreign Liquor) Rules, 1968 did not provide for a trust to be recognized as a club under sub -rule (4) of Rule 3. It is for this reason that the explanation was sought to be held to be ultra virus the Excise Act and strike down the explanation so that any club would be provided with the license.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>In view of the said notification which has been issued, the explanation to sub-rule (4) of Rule 3 has been amended and by way of said amendment a club would mean and includes by  any organization, run by society, a trust registered under a relevant Law or a Company registered under Section 25 of the Companies Act, 1956 or Section 8 of the Companies Act, 2013 or other association of individuals whether incorporated or not with the object of service motive, providing recreation, cultural, sports, gymnasium and service activities of entertainment.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 4.<span style=\"white-space:pre\">	</span>In view of the said amendment, the prayer for declaration sought for by the petitioner has been rendered infructuous. Consequently, the order passed by the respondent No.4 denying extension of license dated 01.06.2016 would have to be quashed and necessarily a direction would have to be issued to the respondent to renew the CL-4 license issued to the petitioner.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>I.<span style=\"white-space:pre\">	</span>The petition is partly allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd198abdd873b95fcfd148c30d3e9b89b.JPG', '61b4c982dce6bab0778c0ce27e0a54c5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-28', 1, '', '', '2023-02-27 16:17:45', '2023-02-28 10:29:11'),
(2738, '1y313v7iguVMc0bfe9owUaw8z', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Trust Act. Petition under Section 34 seeking opinion of Court in management of trust property is not a dispute raised before Court. Section does not apply to suits involving disputes. Karnataka High Court.', '<p><b>Muhammad Azhar Ali vs Abdul Razzaq Bidri&nbsp;</b></p><p><b>Civil Revision Petition 200007 of 2018 decided on 31 August 2021.&nbsp;</b></p><p><b>Justice H.B. Prabhakara Sastry.&nbsp;</b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12. Section 34 of the Trusts Act reads as follows:</span><br></b></p><p><b>\"34. Right to apply to Court for opinion in management of trust property. - Any trustee&nbsp; may,&nbsp; without instituting a suit, apply by petition to a principal Civil Court of original jurisdiction for its opinion, advice or direction on any present questions respecting the management or administration of the trust property other than questions of detail, difficulty or importance, not proper in the opinion of the Court for summary disposal.</b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>A copy of such petition shall be served upon, and the hearing thereof may be attended by, such of the persons interested in the application as the Court thinks fit.</b></span></p><p><b>The trustee stating in good faith the facts in such&nbsp; petition and acting upon the opinion, advice or direction given by the Court shall be deemed so far as regards his own responsibility, to have discharged his duty as such trustee in the subject-matter of the application.</b></p><p><b>The costs of every application under&nbsp; this Section shall&nbsp; be in the discretion of the Court to which it is made.\"</b></p><p><b>A reading of the above Section would go to show that, it is only a Trustee, who, without instituting a suit, can apply by a petition to the Principal Civil Court of Original jurisdiction, for its opinion, advice or direction on any present questions respecting&nbsp; the management or administration of the trust property.</b></p><p><b>Secondly, a Trustee approaching the competent Court under Section 34 of the Trusts Act appears to be not for any adjudication of a dispute between himself and the other Trustees, but, it is for an opinion, advice or direction on any present questions respecting the management or administration of the&nbsp; Trust property.&nbsp; Thus, the words “opinion, advice or&nbsp; direction”&nbsp; in&nbsp; Section&nbsp; 34&nbsp; of&nbsp; the Trusts Act gives the meaning that, it is nothing more than a guidance by a Court for the welfare of the management or&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">administration of the Trust property.&nbsp; If the dispute is not related&nbsp; to the management or administration of the Trust property, but if the dispute is of challenging some act or acts of some of the Trustees as against the interest of the other Trustees, individually, which does not affect the administration or management of the Trust, then, Section 34 of the Trusts Act would not come into operation. It is also for the reason that, the jurisdiction conferred on the Court under Section 34 of the Trusts Act is a limited jurisdiction. Under the said Section, the Court has not been conferred with the overall jurisdiction in matters arising under a Trust Deed. The Trusts Act has prescribed what the Court can do and inferentially what it cannot do. The jurisdiction of the Court is circumscribed by the provisions of Section 34 of the Trusts Act.</span></b></p><p><b>13.<span style=\"white-space: pre;\">	</span>In the instant case, the plaintiffs\' grievance is not that there is any mis-management of the Trust by the defendants affecting the very object of the Trust or that the plaintiffs are seeking for any opinion, advice or direction on some questions respecting the management or administration of the&nbsp; Trust&nbsp; property by a Court. On the other hand, as already observed above, the plaintiffs have sought for a specific relief of declaration, to declare that the resolutions dated 15-01-2015 and 15-02-2015 are illegal and not binding on them and also for a further declaration that the Supplementary Deed of Trust document dated 05-03-2015 is illegal, non-est and not binding on the&nbsp; plaintiffs.&nbsp; The said relief sought for cannot be considered as a petition by a Trustee, seeking for \'any opinion, advice or&nbsp; direction\'&nbsp; on&nbsp; any&nbsp; present questions respecting the management or administration of the Trust property. Therefore, the main contention of the learned counsel for the petitioner/applicant (defendant No.4) that the suit&nbsp; is with respect to the management of the Trust property, as such, the suit filed under Order VII, Rule 1 read with Section 26 of the CPC, is not maintainable and the same is barred by the provisions of Section 34 of the Trust Act, is not acceptable.</b></p><p><b>17.<span style=\"white-space: pre;\">	</span>It is considering the nature and scope of the suit and&nbsp; the relief sought for in the plaint, the Trial Court has rightly rejected the interlocutory application – I.A.No.II filed by the defendant No.4 (present petitioner) under Order VII, Rule 11(d) of the CPC. I find no illegality, irregularity or impropriety in the impugned order, warranting interference at the hands of&nbsp; this Court.</b></p><p><b>Accordingly, I proceed to pass the following:</b></p><p><b>ORDER</b></p><p><b>[i]<span style=\"white-space: pre;\">	</span>The Civil Revision Petition stands dismissed as devoid of any merit.</b></p>', 'f8c2f332c12c23ef9e943f7f63b6aaf5.JPG', '0357682c13fb94c337dd2e4c35a8e7f1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-27', 1, '', '', '2023-02-27 16:21:13', '2023-02-27 16:21:13'),
(2741, 'ZwFdOWD8MGRgR9hesBCLJMmke', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Delay and laches in filing Writ Petition. Where respondents/authorities are themselves guilty of delay and latches, they cannot raise such plea against petitioner. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ksheeraling Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 202224 of 2021 decided on 31 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.S. Mudagal and Justice Anil B Katti</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The petitioner was appointed under Annexure-A dated 18.12.1999 as First Division Revenue Inspector under respondent No.6 Krishna Bhagya Jala Nigama Limited (for short ‘KBJNL’) on contract basis. His services were regularized in KBJNL as per the orders Annexures-A1 and A2 with effect from 28.02.2004.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>Pursuant to the Charge sheet filed by Karnataka Lokayukta Police in the above said case, the petitioner was tried in Special (Corruption) Case No.1/2012 by the Principal Sessions Judge, Raichur for the charges for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 on the ground that he demanded and accepted Rs.4,000/- from the complainant. On such trial, by the judgment dated 18.06.2014 passed by the Principal Sessions Judge, Raichur as per Annexure-B, he was acquitted. The State did not prefer any appeal against the said order.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>The petitioner questions Annexure-N and the entire proceedings on the ground that entrustment to Lokayukta under Rule 14A of the KCSCCA Rules is permissible only in case of civil servants and he was not a civil servant, therefore the entrustment itself was illegal and the consequent proceedings were vitiated. He challenges the order of punishment on the ground of merit also claiming that since he was acquitted in the criminal case after trial, respondent Nos.3 and 4 were not justified in holding that the charge of misconduct against him was proved. The said question of fact cannot be decided in this writ petition. The only question is whether the entrustment under Rule 14A of the KCSCCA Rules was illegal and consequently other proceedings were vitiated.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>Reading of the above provisions show that an entrustment under Rule 14A of the KCSCCA Rules is applicable only to the Government Servants. Similarly, on receipt of such recommendation of the Upalokayukta, the State has to forward that to the Disciplinary Authority and second show cause notice has to be issued by the Disciplinary authority. Reading of Rule 14A(2) of the KCSCCA Rules also shows that the said enquiry is only in relation to a Government Servant.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>In R.F.Hudedavar’s case referred to supra referring to Sections 2(4), (6), (12), Section 9, Section 12 of KL Act and Rule 3 of Karnataka Lokayukta Rules, 1995, Rules 2(c), (d), Rule 3, Rule 14A of the KCSCCA Rules and several earlier judgments of this Court, ultimately in para 29 of the judgment held that Rule 14A of the KCSCCA Rules applies only to Government Servants and not to public servants. It was further held that CCA Rules do not apply to the persons whose appointment and other matters are not covered by those Rules. It was further held that CCA Rules would not apply to the Public Servant who are covered by Special provisions or any contract with regard to the matters covered by such laws or contract. Ultimately it was held that an employee of Karnataka Rural Infrastructure Development Limited is not a Government or Public servant as contemplated under Rule 14A of KCSCCA Rules or under the provisions of KL Act. Similar view was taken in Ganapati’s case referred to supra. Ultimately in those two cases, the coordinate Benches of this Court quashed the order of punishments and directed the State Government to submit the report under Section 12(2) of KL Act to the concerned Corporations for further action in accordance with the applicable rules. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>In this case also, admittedly KBJNL has its own recruitment rules. It was submitted that KBJNL so far has not framed the disciplinary proceedings Rules or the Rules similar to KCSCCA Rules nor they have adopted the same. It is high time that they should do the same at the earliest. In the absence of such Rules, the petitioner and KBJNL are governed by the recruitment Rules and the terms of employment of the petitioner.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>It is settled law that there cannot be estoppel against law. In the light of the above judgments and admittedly when the entrustment was without jurisdiction/competence, there is no merit in the contention that since the petitioner has not opposed on the ground of jurisdiction, he is estopped from questioning the same by filing this petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">20.<span style=\"white-space:pre\">	</span>It was further contended that the entrustment order was passed in the year 2012 and the enquiry report/recommendations were submitted in 2017 and the petition was filed in 2021. Therefore the petition is liable to be dismissed on the ground such delay and latches. In this regard, learned Counsel for the respondents relied on the judgments of the Hon’ble Supreme Court in Chairman/Managing Director, U.P. Power Corporation Ltd vs. Ram Gopal5. Though in the said judgment it was held that generally such inordinate/unexplained delay and latches are relevant in writ actions, but in the very same judgment the Hon’ble Supreme Court noted the legal principle laid down in its earlier judgment in P.S.Sadashivaswa </font></span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">my vs. Tamil Nadu [(1975) 1 SCC 152] that limitation does not strictly apply to the proceedings under Articles 32 and 226 of the Constitution of India. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">21.</span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif; white-space: pre;\">	</span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">The Hon’ble Supreme Court in the judgment in Chairman, State Bank of India vs. M.J.James held that reasonable time cannot be put in straight jacket formula or judicially codify in the form of days etc. it depends on facts and circumstances of each case. It was held that acquiescence is distant from delay and virtually destroys the rights of a person. In para 40 of the said judgment it was held that latches unlike limitation is flexible.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>22.<span style=\"white-space: pre;\">	</span>Where the respondents/authorities are themselves guilty of delay and latches, they cannot raise such plea against the petitioner. In the present case also, though the Upalokayukta submitted the report/recommendations on 24.10.2017, respondent Nos.1, 2, 6 to 9 sat over the matter upto 13.07.2021 despite knowing that the petitioner was not the employee of respondent Nos.1 and 2. After the enquiry by respondent No.4, the petitioner received second show cause notice dated 11.12.2017 till then he was kept in dark. Thereafter till the impugned order Annexure-N was passed, he had done his part of job by submitting his defence statement to the second show cause notice. Moreover the whole proceedings were vitiated for want of jurisdiction in entrustment and conducting the enquiry. Under the said circumstances, the judgments relied on by learned Counsel for the respondents cannot be justifiably applied to the facts of the present case. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">23.<span style=\"white-space: pre;\">	</span>For the aforesaid reasons, the order Annexure-N is liable to be quashed. However, that itself will not entitle the petitioner for writ of mandamus for his reinstatement and service benefits. Liberty has to be given to respondent No.6 to proceed in accordance with law from the stage of receipt of the report of Lokayukta under Section 12(3) of the KL Act.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> i)<span style=\"white-space: pre;\">	</span>The petition is partly allowed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'bad52fc9c6f10ac1211a8be4cee6e3d4.jpeg', 'f4e593f4d13c6977f7228c39ba642977.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-01', 1, '', '', '2023-02-28 14:54:35', '2023-03-01 08:52:05'),
(2742, 'FQD6xdppY88yG77I438k3Mwmd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Revenue officers cannot go into the validity/correctness of the Order based on which the revenue entries are sought be made in the land records. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Lokesh and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 9482 of 2020 decided on 7 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>On 15th September 1956, a Notification was issued by the State Government under Section 1(4) of the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954 (published in the Karnataka Gazette on 20th September 1956) appointing the 02nd October, 1956 as the date on which the Act came into force. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>In this Notification, K.G.Chokkanahalli Village of Yelahanka Hobli was included, as a result of which, with effect from 02nd October 1956, the village of Chokkanahalli, which was a Jodi Inam village, stood vested in the State of Karnataka. The effect of this Notification was that the entire K.G. Chokkanahalli village stood vested in the State and all rights over the lands in K.G. Chokkanahalli village by other persons, including the inamdars, stood extinguished. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>According to the State Government, applications were made by the kadim tenants, minor inamdars and inamdars as provided under the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954. According to Register No.VIII maintained by the State Government under Section 11 of the said Act, land to an extent of about 291 acres 07½ guntas was registered in the name of the Kadim tenants under Section 4 of the said Act. No lands were however registered in favour of either permanent tenants or to quasi permanent tenants under Sections 5 and 6 of the said Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>An extent of 16 acres 33 guntas was registered in favour of the minor inamdars under Sections 7 and 8 of the said Act and a total extent of 252 acres 11½ guntas was registered in favour of the Inamdars under Section 9 of the said Act. Thus, an extent of about 560 acres and 12 guntas was registered in the name of Kadim tenants, minor inamdars and inamdars under the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954 (Document No.1 to the affidavit dated 30.07.2022 produced in W.P. No.9203 of 2020).</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>Thus, according to the State Government, the entire village of Chokkanahalli stood vested in the State and apart from kadim tenants, minor inamdars and inamdars, who were registered as occupants, no other person was registered as an occupant in respect of Sy.No.75/4 and compensation was also paid to the Inamdars i.e., J.Srinivas Rao and N.Muddappa Reddy. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>The fact that the lands were Jodi Inam lands is not in dispute. The petitioners herein are persons who claim that they were either re-granted the land or that they were granted lands by the Special Deputy Commissioner. Some of the petitioners are purchasers from the persons who claimed to have been re-granted the land.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>48.<span style=\"white-space:pre\">	</span>It appears that on 30th April 1996, the Tahasildar directed the names of Ashwath Reddy, Muni Anjanappa and Muniraja Reddy (the grantees under the 1978 Grant) to be entered in Column No.12(2). This order of mutation i.e., M.R. No.36/1995-96 was made on the basis of their possession and not on the basis of any order of grant. This order directing their names to be entered in the revenue records in column No.12(2) was challenged by Krishnappa and Mariyappa before the Assistant Commissioner. By an order dated 08th August 1997, their appeal was allowed and the mutation made by M.R. No.36/1995-96 was set aside and the matter was remanded to the Tahasildar.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>54.<span style=\"white-space:pre\">	</span>It was also noticed that the grantees of the 1978 grant i.e., Ashwath Reddy and 3 others were also making a claim and if all the claims together were aggregated, it would amount to a claim being made in excess of the total extent of Sy.Nos.75/4, which was to an extent of 21 acres 19 guntas. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>55.<span style=\"white-space:pre\">	</span>In the light of this Report, the Deputy Commissioner invoked his power under Section 136(3) of the Karnataka Land Revenue Act, 1964 and started an enquiry to examine the validity of the entries in the revenue records.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>78.<span style=\"white-space:pre\">	</span>It is this order of the Deputy Commissioner which is challenged in these writ petitions. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>79.<span style=\"white-space:pre\">	</span>In order to examine whether the petitioners have a right to have their names entered in the revenue records, it would be essential to consider the grants separately as the 1965 grant, 1966 grant, 1975 grant, 1978 grant and 1984 grant. If these grants are found to be valid, then the grantees or their successors-in-interest would be entitled to have their names entered in the revenue records. If, however, it is found that there was no order of re-grant made in favour of the alleged grantees, none of the successors- in-interest or these people would have the rights to have their names entered in the revenue records.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>81.<span style=\"white-space:pre\">	</span>As stated above, the first order of re-grant is stated have been made on 15th February 1965, in favour of Appajappa, who was the son of Anjani and who was stated to have been re-granted an extent of 06 acres 19 guntas under Section 6A of the Mysore (Religious and Charitable) Inams Abolition Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 82.<span style=\"white-space:pre\">	</span>In this case, it is stated that the Jodidar called B.K.Sheebanna had executed a sale deed dated 19th January 1920 in favour six persons i.e., Muninarasimha Reddy, Nadappa (also Nadukala) Narasimha Reddy, Anjani, Huchappa, Mudaiah and Mariswamy and one of the purchasers was Anjani. It is stated that Appajappa-son of Anjani made an application for re-grant and the Special Deputy Commissioner passed an order of re- grant on 15th February 1965. The fact as to whether an order of re-grant was indeed passed in favour of Appajappa is, however, in serious dispute.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>102.<span style=\"white-space:pre\">	</span>In the light of the fact that the order dated 15th February 1965 has been found to be tampered, coupled with the fact that there is no entry of any order of re-grant made in favour of Appajappa in the Register, it is obvious that the persons who claimed that the land had been re-granted to them on 15th February 1965 are putting forth a false claim. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>103.<span style=\"white-space:pre\">	</span>It is to be stated here that in order to have a right to get their names entered in the revenue records, it will have to be established that they have acquired a right in a lawful manner. It is also to be noticed here that though the land is stated to have been granted in the year 1965, for almost twenty years, there is no entry in favour of the recipient of the order of grant. There is also no record to indicate that any premium was paid. In the light of these facts, the assertion that there is an order of re-grant on 15th February 1965 cannot be accepted at all.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>105.<span style=\"white-space:pre\">	</span>In the instant case, the petitioner claims that Appajappa was granted the land under Section 9 of the Mysore (Personal and Miscellaneous) Inams Abolition Act. Under Section 9 of the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954, it is only the inamdar who could have made a claim for being registered as an occupant. However, in the instant case, Appajappa claims to have made an application for the grant and arrayed the Jodidar as the first respondent and his vendor as the second respondent.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>107.<span style=\"white-space:pre\">	</span>As stated earlier, the Inamdars—J.Srinivasrao and Muddappa Reddy, were granted compensation by the Government for the lands which had been registered in favour of the kadim tenants under Section 4 and minor inamdars under Sections 7 and 8 of the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954 (document No.36 to affidavit dated 30.07.2022 WP No.9203 of 2020). In the light of the fact that they were not even arrayed as parties in the proceeding for re-grant, by itself indicates that the petitioners claiming under the 1965 grant did not really seek for re-grant and consequently, have no right to have their names entered in the revenue records. The order of the Deputy Commissioner is therefore perfectly in order and does not call for any interference.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 108.<span style=\"white-space:pre\">	</span>In the result, the writ petitions filed by Gowramma in W.P. No.9203 of 2020 and Krishnappa in W.P. No.9196 of 2020 are devoid of merits and are liable to be dismissed.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>177.<span style=\"white-space:pre\">	</span>The last of grants that are put forth for consideration in this batch of writ petitions is an order of grant made by the Land Tribunal on 23rd June 1984 in favour of Zaibunissa Sharif. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>178.<span style=\"white-space:pre\">	</span>It is stated that one Muniswamy Reddy had sold 07 acres 04 guntas in favour of Zaibunnissa Sharif under a sale deed dated 08th January 1981 and Zaibunnissa Sharif had made an application before the Land Tribunal seeking to be registered as an occupant on 30th March 1984. The Land Tribunal by order dated 23rd June 1984 had registered Zaibunnissa Sharif as the occupant. It is contended that she had thereafter deposited the premium on 26th June 1984. It is also stated that thereafter, Zaibunnissa Sharif executed two sale deeds on 20th September 1984 to an extent of 03 acres 16½ guntas each in favour of Mohammed Shariff and three others, and Shariffunnissa and two others. It is also stated that these purchasers viz., Mohammed Shariff and three others, and Shariffunnissa and two others, had executed two sale deeds both dated 09th May 1988 in favour of T.P.Mohammad Hussain and in favour of Syad Saleem Pasha. It is submitted that T.P.Mohammad Hussain sold 03 acres 16½ guntas that he had purchased in favour of K.R.Sudhir under a registered sale deed dated 26th November 2007. It is also stated that Syad Saleem Pasha sold 03 acres 16½ guntas that he had purchased in favour of A.Mehaboob Pasha and A.Khaleel under a registered sale deed dated 04th July 1989. It is also stated that thereafter, A.Khaleel relinquished his rights over the said property in favour of A.Mehaboob Pasha under a registered relinquishment deed dated 09th April 1997.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>182.<span style=\"white-space:pre\">	</span>It is also observed that Muniswamy Reddy had sold the land after it had stood vested in the State and as such, Zaibunnissa Sharif had not acquired any title. It is also observed that the source of the title of Muniswamy Reddy’s vendor was also not forthcoming. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>183.<span style=\"white-space:pre\">	</span>It is also noticed that the order of the Land Tribunal in favour of Zaibunnissa Sharif was made on 23rd June 1984 and she immediately sold the land on 20th September 1984 and therefore, she had no right to have her name entered in the revenue records and so also, her successors-in-interest would also have no right to have their names entered in the revenue records. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>184.<span style=\"white-space:pre\">	</span>It has to be stated here at the outset that in a proceeding under Section 136 of the Karnataka Land Revenue Act, 1964, the Deputy Commissioner has been conferred with the power of examining any records made under Sections 126 and 127 of the said Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>185.<span style=\"white-space:pre\">	</span>Section 127 of the said Act deals with Records of Right, while Section 129 deals with the registration of mutation and register of disputed cases. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>186.<span style=\"white-space:pre\">	</span>The Deputy Commissioner, no doubt, has the power to examine the orders that have been passed under Section 129 of the Karnataka Land Revenue Act, 1964. Section 128 of the said Act mandates that any person acquiring any right by any means stated therein is required to report the acquisition of his right and thereafter, an inquiry is to be conducted as to whether the acquisition of right was acceptable and orders to mutate their names could either be granted or refused. In such a proceeding, the officer who receives a report of an acquisition of a right has not been clothed with the power to decide upon the validity or invalidity of the right acquired.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>189.<span style=\"white-space:pre\">	</span>In the instant case, the Deputy Commissioner has fundamentally refused the claim of the persons claiming under Zaibunnissa Sharif on the ground that the order made in favour of Zaibunnissa Sharif was illegal. This power to sit in judgment over an order passed by the Land Tribunal is not available with the Deputy Commissioner and therefore, the order insofar as it relates to the successors-in-interest of Zaibunnissa Sharif i.e., K.Sudhir and A.Mehaboob Pasha—the petitioners in W.P. No.9179 of 2020 will have to be quashed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>190.<span style=\"white-space:pre\">	</span>Writ Petition No.9179 of 2020 is therefore allowed.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>193.<span style=\"white-space:pre\">	</span>As far as the argument that the revisional jurisdiction was invoked after an unreasonable period is concerned, it has to be stated here that the revenue entries were not mutated in favour of the petitioners on the basis of the alleged orders of re-grant made in the years 1965, 1966 or 1975 and disputes arose only in the year 1996, when the entries were made for the first time in favour of the grantees who claimed under the grant of 1978 vide M.R. No.36/95-96 and this was challenged in an appeal. It is only thereafter litigation started and in the year 2000, the Deputy Commissioner invoked his revisional jurisdiction. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>194.<span style=\"white-space:pre\">	</span>It may also be pertinent to state here that the name of the grantees or their successors-in-interest were not found in the records from the date of their alleged grant. In fact, the name of some of the parties only appeared in Column No.12(2) and not in Column No.9 and it is not the case of the parties that their names had been entered  for several years in Column No.9 and therefore could not be amenable for correction. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>195.<span style=\"white-space:pre\">	</span>In my view, given the facts of these cases, it is clear that the Deputy Commissioner had invoked his revisional jurisdiction the moment it was brought to his notice in the year 2000 and the parties have been litigating ever since. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>196.<span style=\"white-space:pre\">	</span>The judgments relied upon are of no avail since, in those cases, the entries were found to be in existence for a lengthy period of time and hence, the invocation of the revisional jurisdiction ought to have been exercised within a reasonable period. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>197.<span style=\"white-space:pre\">	</span>As far as the argument that the revenue authorities had no jurisdiction to examine whether the order was valid or whether it was genuine is concerned, it is to be stated that the very purpose of conferring power on the Deputy Commissioner under Section 136 of the Karnataka Land Revenue Act, 1964 is to ensure that there is an oversight over the revenue entries and if it is found that there was no basis for the entry at all and the claim made for an entry was based on a fictitious order, it would be the obligation of the Deputy Commissioner to ensure that a fraudulent act is not regularised.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 198.<span style=\"white-space:pre\">	</span>In the case of Kunnappa, the Court there found that the Deputy Commissioner had annulled the order passed by the Special Deputy Commissioner and in that context, the Court held that the Deputy Commissioner, acting under Section 136 of the Karnataka Land Revenue Act cannot go into the question of correctness or otherwise of an order, or examine whether it is forged or fabricated.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 199.<span style=\"white-space:pre\">	</span>It is to be stated here that if a land statutorily stood vested with the State under a Notification issued under a statute, for a person to claim a right over such land, an order passed under the statute is essential and if it is found that no proceeding or order had been passed in respect of the said land, the question of entertaining a claim would not arise.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 200.<span style=\"white-space:pre\">	</span>In the present case, there is no order of re- grant in existence as per the records maintained by the State. The ruling, therefore relied upon in Kunnappa’s case, which was dealing with a situation where the Deputy Commissioner had annulled the order of a Special Deputy Commissioner under the Inams Act cannot be applicable to the present case.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 201.<span style=\"white-space:pre\">	</span>Consequently, Writ Petition Nos.9482 of 2020, 9196 of 2020, 9203 of 2020, 9275 of 2020, 9502 of 2020, 9529 of 2020, 14796 of 2020 and 10434 of 2021 are dismissed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>202.<span style=\"white-space:pre\">	</span>However, since it is held above that there is an order of re-grant made in favour of Zaibunnissa Sharif, her successors-in-interest i.e., K.R.Sudhir and A.Mahaboob Pasha would have the right to have their names entered in the revenue records as per the registered documents executed in their favour. Consequently, W.P. No.9179 of 2020 alone is ALLOWED.</b></font><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0ab5bdb7f91d354ab7b861bb8b337c7d.JPG', '1637ecb002ee1e1cfc5014893a7e298e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-01', 1, '', '', '2023-02-28 15:40:09', '2023-03-01 10:55:08');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2743, 'AODTZAawnSWoifNOY8q8laffR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Magistrate cannot register the case on protest petition without first passing orders rejecting the ‘B’ report. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Govinda Rajulu and others Vs Sridhara Murthy.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 4737 of 2017 decided on 8 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The respondent herein had filed a private complaint under Section 200 of Cr.P.C., alleging that, the accused/petitioners herein as office bearers of the Society registered under the Karnataka Societies Registration Act, have misappropriated funds of the Society. Learned Magistrate referred the matter to the police for investigation under Section 156(3) of Cr.P.C. The police after investigation submitted the ‘B’ report to the learned Magistrate to which the complainant / respondent filed a protest petition. The learned Magistrate after recording the sworn statement, registered the case against the petitioners for the offences punishable under Sections 120(B),  420, 408 and 477A of IPC. Taking  exception  of  the same, this criminal petition is filed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>Learned Magistrate was required to  pass an order rejecting the ‘B’ report  at  the  first instance and thereafter record the  sworn statement and pass an order for registering  the case. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space:pre\">	</span>In the instant case, without rejecting the ‘B’ report at the first instance, the learned Magistrate has recorded the sworn statement and registered the case, which is impermissible as held by the  Co-ordinate Bench of  this court in  the case of Dr. Ravikumar (supra). Even otherwise, Section 25 of the Karnataka Societies Registration Act provides for an efficacious remedy to submit a complaint to  the  Registrar of  Societies concerned to enquire in to the alleged misappropriation  of funds by the office bearers. The petitioner without invoking such remedy has filed the complaint and the same is impermissible. In  view  of  the preceding analysis, the continuation of the prosecution would be an abuse of process of law.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space:pre\">	</span>Petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '88d6be6e8c2057176dbc5ab3c2bcd7aa.jpeg', '5c20490b8adf23387607b1114a0f7820.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-01', 1, '', '', '2023-02-28 15:58:43', '2023-03-01 03:21:38'),
(2744, 'MpX5z3ecw3FQlLMJp2Xt83JlL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Allotment of industrial plot cannot be cancelled on the ground of delay in implementing the project when the delay is attributable to reasons beyond the capacity of the allottee. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Adharsha Granites Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 42672 of 2017 decided on 8 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ashok S Kinagi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Brief facts leading to the filing of the writ petition are as under:- The respondents–KIADB has allotted a plot bearing No.42 in favour of the petitioner on 01.02.2007 for setting up an industrial project and vacant possession was delivered to it on 20.12.2007. The lease-cum-sale agreement was executed by respondent No.3 in favour of the petitioner. The petitioner could not start the project as there were illegally erected High Tension Electric Poles in the said site and hence, it submitted a representation to respondent No.4 seeking for removal of the same. Respondent No.4 addressed a letter to the Assistant Executive Engineer, KPTCL, Ramanagara directing to remove the High Tension Electric Poles. Respondent No.2, taking into consideration the fact that there is a breach of the condition by the petitioner, has passed the impugned order dated 21.10.2016 terminating the lease-cum-sale agreement and directed the petitioner to handover the site to the KIADB. Aggrieved by the said order, the petitioner has filed this writ petition. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>Respondent Nos.2 to 4-KIADB have filed statement of objections stating that they had allotted plot No.42 in favour of the petitioner for setting up of “Granite Cutting and Polishing” unit vide allotment letter dated 01.02.2007 and lease-cum-sale agreement was executed by respondent No.3 on 14.02.2008. As per the terms and conditions of the lease agreement, the petitioner was supposed to start the project within the stipulated period. Since the petitioner failed to do so, KIADB issued a notice and the petitioner replied to the same. Hence, the respondents–KIADB contended that the impugned order has been passed after considering the reply submitted by the petitioner.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>It is not in dispute that KIADB has allotted Plot No.42 in favour of the petitioner and lease-cum-sale agreement was executed by respondent No.3 on 14.02.2008. As per the terms and conditions of the said agreement, the petitioner was supposed to set up the project within a period of 24 months. The petitioner submitted an application to respondent No.3 for removal of the illegally erected High Tension Poles in the schedule plot. Since the petitioner failed set up the project within the stipulated period, the respondents-KIADB passed an order vide Annexure-L terminating the lease agreement and directed to handover the plot before 07.12.2016.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>On a careful reading of sub-sections (1) and (2) of Section 34-B of the said Act of 1966, it is seen that as per sub- section (1), if the Board is of the opinion that an allottee of any premises or part thereof or residential tenement in an industrial area or industrial estate has violated any of the terms or conditions of allotment or holds it without any authority it may, without prejudice to Section 25 give notice to such allottee and Banks or Financial Institutions, in whose favour the Board has permitted the mortgage or leasehold rights of the premises, or residential  tenement  specifying  the breaches of the terms and  conditions  of  the  allotment calling  upon  the  allottee  to  remedy  such  breaches  within a time stipulated in the notice. As per sub-section (2), if the allottee fails to remedy the breaches within the time so stipulated, the  Board  shall  serve  a  notice  upon  the allottee under intimation to such Bank  or  Financial Institutions to  show  cause  within  thirty  days  from  the date of service of notice, why  the  possession  of  the premises or  part  thereof  or  residential  tenement  should not be resumed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>In the instant case, respondent No.3 issued a notice under Section 34-B of the said Act of 1966 to the petitioner on 29.10.2013 and 13.02.2015 for failure to implement the project within the stipulated period. The petitioner in response to the said notice had sought for further extension of time as there was high tension electric pole in the site in question. The petitioner requested the KIADB for removal of the same. The KIADB has failed to consider the cause shown by the petitioner towards delay in implementing the project. The KIADB could not remove the high tension electric pole from the site in question. The petitioner for the said reason could not implement the project within time. Thereafter, no notice is issued under Section 34-B(2) of the said Act of 1966, but respondent No.3 proceed to pass the impugned order dated 21.10.2016. Non-compliance of the procedure prescribed under Section 34-B(2) of the said Act of 1966, the resumption order is liable to be set aside.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 11.<span style=\"white-space:pre\">	</span>As observed above, in the instant case, respondent No.3 has not compiled with the procedure prescribed under Section 34-B(2). On this ground alone, the impugned order is liable to be quashed with liberty to respondent No.3 to issue proper notice from the stage of Section 34-B(1) of the said Act of 1966, hear the petitioner and pass appropriate orders. If the petitioner submits satisfactory reply or if the petitioner has completed the project, the same shall be taken note by respondent No.3 while hearing the petitioner in pursuance of notice under Section 34-B(2) of the said Act of 1966.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>As submitted by the learned counsel for the parties, in an identical matter i.e., W.P.No.46678/2017 referred to supra, the co-ordinate Bench of this Court, by placing reliance on Section 34-B of the said Act of 1966, has set aside the similar order and reserved liberty to the respondents-KIADB to proceed from the stage of Section 34-B(1) and in accordance with law, after hearing the petitioner.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>Following the decision of the Co-ordinate Bench of this Court in the aforesaid writ petition, I proceed to pass the following order:- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>a)<span style=\"white-space:pre\">	</span>The writ petition is allowed in part.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5278ac49dad36c8f06024f5b16d6ae3f.JPG', 'cfc4363f19d84bf9972df03a072ae1a6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-04', 1, '', '', '2023-02-28 16:20:27', '2023-03-04 10:05:16'),
(2745, 'W1BX2nBw58m4Lc4Co8Sc2dNoq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'C.P.C. Execution. Person who claims under a Will and seeks declaration of title and possession can NOT maintain application under Order 21 Rule 97 as obstructer. He has to file separate suit for declaration and possession. Karnataka High Court.', '<h4><b>Sulochana and Others vs Devappa Badigeppa Hudelakoppa and others.</b></h4><h4><b>Civil Revision Petition 100070 of 2020 decided on 20 April 2021.</b></h4><h4><b>Justice Sachin S. Magadum</b></h4><h4><b><br>4. ....the decree for possession in favour of petitioners against Narayan Vernekar and his legal heirs respondent Nos.2 to 10 has attained finality. The decree passed in OS No.28/1995 having attained finality, the present petitioners to secure possession has filed execution petitioner in Ex.18/ 2014. Pending execution, the present respondent No.1 has filed application in IA No.1 under Order 21&nbsp; Rule 91 of CPC. The first respondent is asserting right and title on the basis of Will executed by original plaintiff in OS No.28/ 1995 i.e. Narayan&nbsp; Vernekar.&nbsp;&nbsp;<br></b></h4><h4><b>5. If the prayers are meticulously examined, I am of the view that the application filed by the&nbsp; first respondent would fail on two counts. Firstly respondent No.1 is asserting and claiming right under original plaintiff who has benefit of decree the possession. Thereby, he cannot maintain an application under Order 21 Rule 97. Any third party who has an independent right then that of judgment debtor can obstruct by placing on record the title documents. In the present case on hand, first respondent is asserting right on the basis of Will executed by original plaintiff who had benefit of decree for possession.<br></b></h4><h4><b>9. First respondent has filed an application under order 21 rule 97 of CPC by asserting right, title on the basis of the Will executed by the original plaintiff. The present petitioners are the class one heirs of the deceased-plaintiff. The first respondent is asserting title on the basis of the Will. The right and title&nbsp; of&nbsp; respondent No.1 cannot be adjudicated in execution proceedings. Remedy of first respondent if any is to file&nbsp; a comprehensive suit seeking declaration of his title on the basis of Will. If first respondent is asserting right and title on the basis of the Will, the Executing Court was required to examine the claim made by first respondent and ought to have summarily rejected the 3rd party application. The present petitioners who are class-I heirs of original plaintiff are entitled to seek possession and therefore Respondent No.1 has no locus standi to obstruct delivery of possession.<br></b></h4><h4><b>12. The order dated 26.11.2020 passed by the Civil Judge, Mundgod on IA No.1 in Ex. No.18/ 2014 is set aside and IA No.9 filed by the petitioners is allowed.</b></h4>', '9b685bfcd2d002e71c71dda1d07d6763.JPG', '7be91745f59bdd132bf86ab50c7ce83e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-02-28', 1, '', '', '2023-02-28 16:30:18', '2023-02-28 12:27:36'),
(2748, 'Zz0Jz9ZQI6qNhl3OOq3kQSdi4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Workman cannot be dismissed without taking the approval of the Industrial Tribunal in terms of Section 33(2)(b) of the Industrial Disputes Act when proceedings are pending. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mulbery Siks Ltd Vs N.G. Chowdappa.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 28177 of 2009 decided on 20 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2. The petitioner is a company carrying on the business of manufacturing of silk fabrics from the year 1996. On 24.07.2002, a domestic enquiry was held in which the respondent was found guilty of misconduct and his services came to be dismissed vide order dated 06.08.2003. The respondent along with four others filed an application No.1/2004 under Section 33(C)(2) of the Industrial Disputes Act, 1947 (for short, ‘the Act’) claiming full wages from the date of dismissal till filing of the application. The objections were filed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12. The points that would arise for consideration for this Court are that: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1)<span style=\"white-space:pre\">	</span>Whether a workman could be dismissed without taking the approval of the Industrial Tribunal in terms of Section 33(2)(b) of the Industrial Disputes Act? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2)<span style=\"white-space:pre\">	</span>Whether a reference made under Section 33(C)(2) of the Industrial Disputes Act if the other workmen were to settle their disputes would it be required of the remaining workmen to also settle their dispute? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3)<span style=\"white-space:pre\">	</span>Whether the Labour Court had the power in an application filed under Section 33(C)(2) of the Industrial Disputes Act to direct reinstatement of the workman?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 4)<span style=\"white-space:pre\">	</span>Whether the order passed by the Labour Court suffers from any legal infirmity requiring interference at the hands of this Court?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 5)<span style=\"white-space:pre\">	</span>What Order?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>Answer to Point No.1: Whether a workman could be dismissed without taking the approval of the Industrial Tribunal in terms of Section 33(2)(b) of the Industrial Disputes Act?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.4. It is therefore clear that whenever there is an industrial dispute which is pending either between the employer and the workman or between the employer and the union, necessary permission under Section 33 (2)(b) of I.D.Act would be required to be obtained by the employer in the event of the employer wanting to vary the terms or service. Dismissal would definitely be covered under the scope and ambit of “varying the terms of service”. Thus, without obtaining permission of the Court seized of the industrial dispute by filing necessary application under Section 33 (2)(b) employer cannot dismiss the workman from service.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 14.5. Thus, I am of the considered opinion that the embargo imposed in terms of Section 33(2) would be applicable to the present case. The dismissal of the respondent when the dispute was pending is a clear violation of Sub-Section (2) of Section 33 of the Act entitling such workmen to continue to be in employment notwithstanding the order of dismissal or discharge which is submission of Sri.Subramanya in that without such permission having been sought for and obtained, the order of dismissal is to be treated non-est and never to have been passed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 14.6. Hence, I answer Point No.1 by holding that a workman could not be dismissed without taking the approval of the Industrial Tribunal in terms of Section 33(2)(b) of the Industrial Disputes Act, when proceedings are pending.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>Answer to Point No.2: Whether any reference made under Section 33(C)(2) of the Industrial Disputes Act if the other workmen were to settle their disputes would it be required of the remaining workman to also settle his dispute?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.2.  A perusal of the above provision would indicate that in terms of Section 33(C)(1) of I.D.Act where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter VA or Chapter VB, the workman by himself or any other person authorized by him in writing can make an application to the appropriate Government for the recovery of the money due to him and if the appropriate Government were of the opinion that the amounts were due, a certificate to that effect shall be issued to the Collector who shall proceed to recover the same as arrears of land revenue. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.3. Thus, a claim to be made under Section 33(C)(1) of I.D.Act where the amounts are crystalised and/or due under a settlement or an award or the amounts are due on account of layoff or retrenchment or closure of establishments in terms of Chapter VA and VB of the I.D.Act. In all the above cases, there is a crystalisation of the amount or methodology of crystalising the amounts and as such, that procedure is prescribed.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.6. Similar is the<span style=\"white-space:pre\">	</span>situation in Kankuben case where the dispute was as regards common amounts due on overtime work to all workmen. In M/s.National Engineering Industries Limited case, the settlement which was arrived at was under Section 12(3) of I.D.Act between the employer and five unions of workmen.  Thus, the said decision would also not be applicable to the present case. In M/s.Herbertsons Limited case, the settlement was again between the employer and the union and not between the employer and few of the workmen. Hence, the said decision is also not applicable to the present case. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.7. Thus, I answer Point No.2 by holding that whenever a reference is made under Section 33(C)(2) of I.D.Act to the Tribunal, if a few of the workmen settle the dispute with the employer, the remaining workmen are not required to settle the same as per the settlement agreed between the employer and some workmen. The workmen’s individual claims/dues subject matter of Section 33(C)(2) of I.D.Act, proceedings can continue to be agitated irrespective of the settlement.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. Answer to Point No.3: Whether the Labour Court had the power in an application filed under Section 33(C)(2) of the Industrial Disputes Act to direct reinstatement of the workman?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.6. From perusal of the above proposition, it is clear that permission under Section 33(2)(b) of I.D.Act is required before the dismissal of the workman when a dispute is pending between the employer and the union or the employer and the workman. In such case, permission under Section 33(2)(b) of I.D.Act is required to be obtained before dismissal of the workman. However, as detailed hereinabove, in the event of permission under Section 33(2)(b) of I.D.Act not being obtained and the dismissal order being challenged by the workman, in such a situation, the employer would have to justify the order of dismissal. In the proceedings where the dismissal is challenged, while enquiring into the order relating to dismissal, the Court could enquire into and give a finding as regards the validity or otherwise of the dismissal order. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.7. In the present case, it is clear that there was a proceeding under Section 33(C)(2) of I.D.Act which was pending where the workman had lodged certain claims for monies due and payable by the employer. Thus, there was a dispute which was pending. It is during the pendency of the said dispute that the employer dismissed the workman from service without obtaining permission under Section 33(2)(b) of the I.D.Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.12. I answer Point No.3 by holding that when disputes are pending before the Labour Court, the Labour Court could adjudicate all incidental matters relating thereto and relating to the industrial dispute which could include the setting aside the order of dismissal directing the reinstatement and ordering the backwages.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>17.<span style=\"white-space:pre\">	</span>Answer to Point No.4: Whether the order passed by the Labour Court suffers from any legal infirmity requiring interference at the hands of this Court?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>17.1. In view of the discussion held as regards the aforesaid points, the Labour Court having decided the issue by taking note the fact of the workman having been dismissed from service during the pendency of the proceedings before it, there being no permission under 33(2)(b) of I.D.Act which had obtained, no justification having been made as regards the order of dismissal, the Labour Court has rightly come to a conclusion that the dismissal was improper and directed the reinstatement of the workman with backwages. In view of the above discussion, I do not find any infirmity in the order passed by the Labour Court requiring interference by this Court. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>18.<span style=\"white-space:pre\">	</span>Answer to Point No.5:  What Order? </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>18.1. Since no grounds are made out, the Writ Petition stands dismissed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '53f6b996bd742e5eb4407c1418dbf61a.JPG', '516e8e285804ab1a0738e75f6c35fff0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-02', 1, '', '', '2023-03-01 13:53:33', '2023-03-02 12:12:42'),
(2749, 'IRA01KobqE4qmPKvFFZFmoZFX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'Proliferation of mobile loan apps haunts gullible customers\'. Karnataka High Court rejects the challenge against freezing of the Chinese company account under the Prevention of Money Laundering Act, 2002 ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Inditrade Fincorp Ltd Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 25172 of 2022 decided on 16 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is before this Court calling in question order dated 02-09-2022 passed by the 5th respondent/Assistant Director, Directorate of Enforcement directing freezing of the account of the petitioner invoking Section 17(1-A) of the Prevention of Money Laundering Act, 2002 (‘the Act’ for short). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Brief facts that lead the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The petitioner is M/s Inditrade Fincorp Limited which claims to be a Type-II non-deposit taking Non-Banking Financial Company (NBFC) incorporated in 2007 under the provisions of the Companies Act, 1956 and further claims to have secured and unsecured micro lending business and its primary revenue is the interest income on the loans given and other incidental fees. The petitioner claims that it is a Company wholly governed and regulated by the Reserve Bank of India under the Reserve Bank of India Act, 1934 and the relevant Rules therein. Respondents 2 to 5 who are the officers of the Enforcement Directorate, 5th respondent in particular, directs that the account of the petitioner be placed under debit freeze pursuant to a search conducted on M/s Cashfree Payments India Private Limited and M/s Razorpay Solutions India Private Limited which are Payment Gateways utilized by the petitioner for disbursal and collection of digital micro-loans to borrowers/customers. After directing debit freeze, proceedings are initiated in Original Application No.732 of 2022 by the Adjudicating Authority under the Act and issues show cause notice to the petitioner on 14-10-2022 in terms of Section 8 of the Act. Contending that the very search and seizure is contrary to law and the second show cause notice being based on the foundation of such search and seizure would also be contrary to law, the petitioner has knocked the doors of this court in the subject petition.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>The status of the petitioner is not in dispute. It is germane to notice certain background facts that leads to initiation of the proceedings by the Enforcement Directorate which has driven the petitioner to this Court. 15 First Information Reports are registered by the Cyber Crime Police Station, Bangalore City for offences punishable under Sections 120B, 384, 419 and 420 of the IPC against numerous entities in connection with their involvement of their extortion and harassment to public who have availed small amount of loans through mobile apps being run by several entities. Based upon the crimes so registered in those predicate offences search and seizure proceedings were initiated against 5 applications – Razorpay Software Private Limited, Cashfree Payments India Private Limited, Paytm Payment Services Limited and Fast App Technology Private Limited. Based upon the search conducted against those Payment Gateways names of 111 entities figured.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>The entities are now alleged to be controlled/operated by citizens of China who have gained access by using forged documents of Indians and by making few Indians as contractors of those entities. During the course of investigation, certain details were received from Rozarpay, Cashfree and Paytm payments who had huge transactions in the Merchant IDs. Based upon the said predicate offences, proceedings under the Act were initiated by the aforesaid search and seizure. The crux of the allegation against all these companies who are alleged to have dummy contractors on behalf of Chinese citizens was that they would grant small loans to individuals without any documentation, after that they direct those gullible customers to download an app and from the app seek access to the contents of smart phones, grant loans and immediately thereafter begin to blackmail those named gullible customers. Therefore, the allegation of extortion and harassment of public at mass levels of the said entities were unearthed albeit, prima facie, from the investigation both in the predicate offences and offences under the Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>Insofar as the judgments relied on by the learned counsel appearing for the petitioner are concerned, much emphasis is laid on the judgment rendered by the Apex Court in the case of OPTO CIRCUIT INDIA LIMITED v. AXIS BANK AND OTHERS. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>These paragraphs are relied on to buttress the submission that the Apex Court was considering an identical issue which was a challenge to the search and seizure order under Section 17 of the Act and has held that unless there are reasons to believe, search and seizure under Section 17 would be contrary to law. The facts that fell for consideration before the Apex Court was that there was no reason to believe, as reasons were not recorded in any of the proceedings, by the Enforcement Directorate. The records that were placed before the Apex Court also did not contain any reasons recorded by the Authorised Officer, that would demonstrate reasons to believe, for passing the said order. The Apex Court holds that in terms of sub-section (1A) of Section 17 seizure orders can be passed only, if there are reasons to believe and copy of those recorded reasons along with the material in possession of the Authorised Officer are forwarded to the Adjudicating Authority in a sealed envelope. Even this was not available before the Apex Court. In the case at hand, the Authorised Officer has recorded reasons for directing freezement of account and has transmitted the same to the Adjudicating Authority. Therefore, the said judgment in the case of OPTO CIRCUIT is distinguishable on the facts obtaining the case at hand without much ado. Thus tumbles down the sheet anchor of the learned counsel appearing for the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>All other judgments are with regard to the power of the Enforcement Directorate to conduct search and seizure. Since the petitioner has to answer the notice issued by the Adjudicating Authority, any further reference being made to the case of the petitioner is likely to prejudice his case before the Adjudicating Authority. It is for the petitioner to submit his reply in defense and thereafter it is for the Adjudicating Authority to consider the same and pass appropriate orders in accordance with law. The petitioner cannot presume or assume that the Adjudicating Authority would not render justice to the case  of the  petitioner meeting all the contentions that he would raise before the Adjudicating Authority by way of reply to the show cause notice. I do not find any warrant to interfere at this stage, as I do not find any violation of procedure stipulated under Section 17 of the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space: pre;\">	</span>It is germane to notice that there is huge proliferation of mobile loan apps and their modus operandi is in public domain. The operation is alleged to be this way, a gullible borrower is given a call and is lured into, for getting a small loan without any documentation. All that the borrowers are informed is that they should download the loan app and give access to the contents of the smart phone. A small time borrower desirous of getting money without any documentation would grab at the opportunity and accept every condition and give access to his smart phone. It is then the trouble crops up when the representatives of such mobile loan apps/companies begin to haunt the borrower threatening leakage of contents in the smart phone while seeking such repayment. It is alleged in some cases that repayment is sought 16 to 20 times more than what a borrower has to pay as EMI. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space: pre;\">	</span>It is again in public domain that several borrowers have committed suicide unable to bear the harassments of the representatives of such loan apps. The office bearers of several of these companies which control and operate such mobile loan apps are said to be entities of China or individuals from China sitting as Directors of such mobile loan apps. Therefore, it becomes necessary for an investigation, in the least to be conducted of any such company who would operate such loan apps and has transactions between each other. The investigation would be imperative, as any effort of any neighbouring nation to destabilize this country, either economically or otherwise, by any method which would touch upon the security of the nation and safety of its citizens, cannot be turned a blind eye to, and in certain cases, certainly in the case of the petitioner, investigation cannot be stalled on this specious plea of procedural aberration as alleged by the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space: pre;\">	</span>Finding no procedural infirmity as alleged by the petitioner, I find no warrant to interfere with the impugned proceedings at this juncture. The challenge to both the freezing order and the show cause notice deserves to be rejected and the defreezement order shall remain subject to the proceedings before the Adjudicating Authority. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space: pre;\">	</span>With all the aforesaid observations, the Writ Petition stands rejected.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0a62626ed6a661bdd5329e445d44fb7b.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-02', 1, '', '', '2023-03-01 20:30:03', '2023-03-02 03:29:25');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2750, 'PLPwZP0Ffc8ebrdyWvJNfCsB7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Grant of conversion from agriculture to non-agricultural purposes under the KLR Act does NOT amount to change of land use under Section 14A of the KTCP Act. Karnataka High Court.', '<p><b>Karnataka Rajya Mandavya Nrimana Sahakara Sangha vs State of Karnataka and other</b></p><p><b><br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Writ Petition 4729 of 2020 decided 25 November 2021.</span></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Justice M. Nagaprasanna</span><br></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><b><br></b></span></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">The petitioner/Karnataka Rajya Mandavya Gruha Nirmana Sahakara Sangha calls in question a communication dated 13.09.2019 issued by the Mandya Urban Development Authority (‘MUDA’ for short) turning down the application of the petitioner for approval of the layout plan on the score that the lands where the layout is sought to be formed will have to undergo a change&nbsp; &nbsp; of land use in terms of Section 14 of the Karnataka Town and Country Planning Act, 1961&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">proceedings in terms of Section 14A of the KTCP Act will have to be initiated by the petitioner.</span><br></b></p><p><b>Section 95(2) mandates that if any occupant&nbsp; of&nbsp; the&nbsp; land&nbsp; assessed or held for the purpose of agriculture wishes to divert such land for any other purpose shall make an application. The proviso mandates that if the land would be falling&nbsp; under&nbsp; the&nbsp; local planning area for which the Master Plan has been duly published under the KTCP Act, such diversion shall be in accordance with sub-section (7).</b></p><p><b>The stand of MUDA in the communication is that the lands are still under the Master Plan and comes within the Planning Area&nbsp; as notified by MUDA. Unless change of land use&nbsp; is&nbsp; granted&nbsp; under Section 14A of the KTCP Act, the approval for&nbsp; layout cannot be granted. It is here the KTCP Act comes into operation.</b></p><p><b>Section 14A mandates that after the Master Plan for an area&nbsp; comes into operation, the planning authority may allow such changes in the land use or development from the Master Plan as may be necessitated. Therefore, it is the power of planning authority and the&nbsp; &nbsp;Government to grant change of land use&nbsp; of&nbsp; &nbsp;the land coming within the ambit of the Master Plan under Section 14A.</b></p><p><b>Section 17 inter alia deals with sanction for a sub-division or a layout. It is here the application of the petitioner was required to be considered, as it was for the formation of a layout. Section 17 mandates that the Planning Authority may within the prescribed&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">period sanction a plan either without modification or subject to such modification and conditions as it considers necessary&nbsp; or&nbsp; may refuse sanction if the Planning Authority is of the opinion that such planning is not in any way consistent&nbsp; with&nbsp; the proposals of the Master Plan. Therefore, on a conjoint reading of all the provisions extracted above of the KTCP Act and the Land Reforms Act, the following unmistakable inferences emerge. A Housing Society applies seeking permission for&nbsp; purchase&nbsp; of&nbsp; lands under Section 109 of the Land Reforms Act; Section 109 mandates grant of permission subject to the&nbsp; provisions&nbsp; of&nbsp; the Act for purchase of lands; Conversion under Section 95(2) again observes that the lands should be free from the area of&nbsp; the&nbsp; Master Plan and the provisions of the KTCP Act; The KTCP Act regulates the manner in which the Master Plan is&nbsp; notified,&nbsp; change of land use is sought and granted and layout plans are approved. If on the touchstone of the aforesaid provisions, the facts obtaining in the case are noticed, it becomes unmistakably clear that no fault can be laid at the hands of MUDA for issuing the impugned communication directing the petitioner to seek change of land use in terms of Section 14A of the KTCP Act. It is for the reason that the lands which the petitioner is seeking to form a layout are, without doubt, coming under the Master Plan; as submitted portions of&nbsp; it are still lands&nbsp; which are&nbsp; agriculture&nbsp; in nature and are part of the Master Plan. An application under Section 14A is to be made in the manner prevalent&nbsp; seeking&nbsp; change of land use of such land which comes within the Master Plan. It is later the Planning Authority will consider the application and submit its proposal for change of land use to the Government and the Government would issue a notification&nbsp; under Section 14A of the KTCP Act. It is then the procedure of change of land use would be complete.</span></b></p><p><b>15.<span style=\"white-space: pre;\">	</span>Once the change of land use is granted, the provisions under Section 17, with particular reference to&nbsp; Section&nbsp; 17(2)&nbsp; would come into play. Section 17(2) empowers the Planning Authority to sanction or refuse sanction for&nbsp; formation&nbsp; of&nbsp; a layout, if the layout plan is not in any way consistent with the proposals in the Master Plan. As on date the proposal in the Master Plan, as notified by MUDA, is still in existence and few of the lands are still with the&nbsp; petitioner which are&nbsp; still agriculture&nbsp; in nature for which change of land use is to be granted.&nbsp; &nbsp;Grant&nbsp; of conversion from agriculture to non-agricultural purposes&nbsp; by the Deputy Commissioner will not mean that change of land use under Section 14A is granted, deemed to be granted or automatically granted, if the land still vests with the Planning Authority and comes within the Master Plan.</b></p><p><b>The property of the petitioner, no doubt, belongs to it and it<span style=\"white-space: pre;\">	</span>has a right to<span style=\"white-space: pre;\">	</span>develop the said property. Such development activity, if comes within the ambit of the Planning Authority i.e., if the land that the petitioner wants to develop comes within the Master Plan or the Zoning Regulations, such acts of private parties can be regulated under a legislation. The KTCP Act is one such legislation and this power of regulating the property through the KTCP Act has been recognized by the Apex Court&nbsp;</b></p><p><b>Therefore, in the light of the afore-narrated consideration of the provisions of the KTCP Act and the KTCP Act having overriding effect on all other laws, what would unmistakably emerge is that the petitioner will have to seek change of land use under Section 14A of the KTCP Act.&nbsp;</b></p><p><b>With the aforesaid observations, while declining to interfere with the impugned communication dated 13.09.2019 issued by&nbsp; the 2nd respondent- MUDA, the Writ Petition stands disposed.</b></p>', 'e14943d9aa35328a31be40a468cd73f7.jpeg', '40b4c8330d72aa1efd387e4178d6dbdc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-02', 1, '', '', '2023-03-02 11:57:06', '2023-03-02 11:57:06'),
(2755, '0jpPcSN2LoiHu6PkaVTZpyWwl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for partition. A person who is not a party to alienation of coparcenery property need NOT seek cancellation of sale deed or a declaration that he is not bound by the alienation. Karnataka High Court. ', '<p><b>Munithayamma and another vs Byanna and others.&nbsp;</b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Regular Second Appeal 1653 of 2021 decided on 1 February 2022</span><br></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><b>Justice N.S. Sanjay Gowda&nbsp;</b></span></p><p><b>35.<span style=\"white-space: pre;\">	</span>Thus, in a suit for partition, normally, the Court is required to determine only whether the person seeking for partition has a share or interest in the properties and whether he is entitled to the relief of partition and separate possession.</b></p><p><b>36.<span style=\"white-space: pre;\">	</span>Obviously, in such a suit, all other co- owners/coparceners are required to be arrayed as defendants&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and the plaintiff is only required to prove that he has a share or interest in the property along with the other co-owners.</span></b></p><p><b>37.<span style=\"white-space: pre;\">	</span>In such a suit for partition, where the plaintiff is entitled to seek for a partition of his share, it would necessarily follow that he would not be concerned with the omissions or commissions of the other co-owners in respect of their respective shares or interest. A suit for partition presupposes the existence of a joint title of the plaintiff with the other coparceners and it would not be necessary for the plaintiff to seek for declaration of his title.</b></p><p><b>38.<span style=\"white-space: pre;\">	</span>In a suit for partition, the plaintiff not only pre- supposes that he has title, but also concedes title in favour of other coparceners and in such a suit, a coparcener would only seek for partition of the coparcenary property and allotment of his share and putting him in separate possession. Thus, a coparcener, in a suit for partition, would only be interested in securing separate possession of his share and he would not be concerned with how the other coparceners have dealt with their share.</b></p><p><b>39.<span style=\"white-space: pre;\">	</span>If one of the other coparceners has sold his share, the plaintiff would have to include him and the purchaser in the suit for partition, since a purchaser of an undivided interest in a coparcenary property would have acquired a share in the coparcenary property and in order to enforce his sale, he would also be entitled to seek for partition.</b></p><p><b>40.<span style=\"white-space: pre;\">	</span>It is to be stated here that the plaintiff in a suit for partition amongst coparceners may not have any grievance against the sale of a share by the other coparcener since that sale does not in any way affect his share in the property.</b></p><p><b>41.<span style=\"white-space: pre;\">	</span>It may also be pertinent to state here that a coparcener may not be aware of the intent of another coparcener or coparceners in selling his or their share and he may not, therefore, be able to prevent the other coparceners from selling their share.</b></p><p><b>42.<span style=\"white-space: pre;\">	</span>In case a coparcener sells property in excess of his share, obviously, he would be conveying property which he did not own at all and the rigor of Sections 7 and 8 of the TP Act would come into play. If a person transfers property in respect of which he has no title, obviously, the conveyance is&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">void and such a conveyance would neither bind the owner of the said property, nor invest title in the purchaser.</span></b></p><p><b>43.<span style=\"white-space: pre;\">	</span>Thus, the conveyance by a coparcener of the entire coparcenary property without the consent of the other coparceners would be void in so far as it relates to the shares of other coparceners who had not joined in the conveyance. If the conveyance in respect of the share of other coparceners is void, then obviously, the other coparceners would also not be required to seek for a declaration that the sale by the other coparcener was void or was not binding upon them.</b></p><p><b>44.<span style=\"white-space: pre;\">	</span>It is also relevant to state here that an alienation made by a person would only bind him and not a person who is not a party to the conveyance. If a person who is not a party to the conveyance is required to seek for a declaration that he is not bound by the conveyance made by another or that the instrument is required to be cancelled, it would virtually amount to an admission by him that he was bound by the sale unless he challenges it.</b></p><p><b>45.<span style=\"white-space: pre;\">	</span>It is to be stated here that only if a person is a party to the conveyance, he would have to challenge the same by&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">seeking for a declaration or its cancellation. A person who is not a party to the conveyance is not required to seek for cancellation of that instrument or for a declaration that he is not bound by the instrument, fundamentally because that conveyance is only by that person who had executed the document. A transfer of property under a document cannot traverse beyond the executant and the beneficiary of the transfer.</span></b></p><p><b>46.<span style=\"white-space: pre;\">	</span>It must also be borne in mind that a purchaser of a coparcenary property is basically claiming title through all the coparceners and the denial of title of one or more coparceners by him would be a self-defeating exercise. Since a purchaser from one coparcener is not denying the title of the other coparceners, the need of the other coparceners, who are not parties to the transfer, to claim a declaratory decree under Section 34 of the Specific Relief Act on the premise that their title is being denied would also not be applicable.</b></p><p><b>47.<span style=\"white-space: pre;\">	</span>If the argument that every coparcener is required to challenge the conveyance of another coparcener is accepted,&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">it would tantamount to stating that the coparcener who had not sold his share is also a party to the sale made by the other coparcener, which would be irrational. The argument of the learned counsel for the appellants is, therefore, unacceptable.</span></b></p><p><b>48. Reliance placed by the learned counsel for the appellants on the judgment in Ganapati Santaram Bhosale´s case cited supra would be of no avail.&nbsp; In the said case, the Division Bench has clearly stated that a Hindu coparcener doesn\'t need to seek for setting the sale and it would be sufficient if he merely asks for his share and be put in possession of that share and for a declaration that he is not bound by any alienation. The Division Bench has not examined whether it is imperative or mandatory for a coparcener to seek for a declaration that he is not bound by any alienations or interest that has been created in the properties. The Division Bench has not laid down the law that a declaration is required to be mandatorily sought for regarding alienation or interest created in the properties. Since the Division Bench has clearly stated that it was not necessary for a Hindu coparcener to seek for setting aside the&nbsp;&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sale, it would naturally follow that it would not be mandatory for a declaration to be sought that the sale was not binding on him.</span></b></p><p><b>49. As stated above, a Hindu coparcener has a right created in the property by birth and this right created by birth cannot be extinguished by the act of another coparcener and it would, therefore, be unnecessary to challenge the alienation by any other coparcener. All that a coparcener is interested in when he seeks for a partition is for the coparcenary property to be divided and his share to be separately handed over to him. The only aim of a coparcener, in a suit for partition, would be to secure a partition of the coparcenary property and to be put in separate possession of his share in the coparcenary property.</b></p><p><b>50. The reliance placed by the learned counsel for the appellants on the judgment of a Co-ordinate Bench in Nagarathnamma´s&nbsp; case&nbsp; cited&nbsp; supra&nbsp; is&nbsp; also&nbsp; of&nbsp; no&nbsp; avail. Even in that judgment, this Court, after considering the Division Bench ruling cited above and the decision of the Apex Court in the case of State of Maharashtra Vs. Pravin Jethalal - AIR 2000 SC 1099 has clearly stated that it was not necessary for a Hindu coparcener to seek for setting aside the alienation. The learned Single Judge has clearly stated that a suit for partition could be maintained by a Hindu coparcener seeking division of properties for assignment and allotting the legitimate share and in the course of it, he could seek for setting aside the alienation. Therefore, the option of seeking for setting aside the sale rests with the plaintiff and it is not mandatory for the plaintiff to seek for setting aside the sale.</b></p><p><b>52. As stated above, the alienation by a coparcener in excess of his undivided coparcenary interest i.e., his share would be void in so far as the shares of the other coparceners are concerned basically because a coparcener has no right to sell the entire coparcenary property and at best, he can only convey his undivided coparcenary interest in the coparcenary property. Thus, if the sale by a coparcener is in excess of his share, the same would be void in so far as the other coparceners are concerned and there would be no need to seek for any declaration in respect of such a void act.&nbsp;</b></p><p><b>54. I am, therefore, of the view that there is absolutely no substance in the arguments advanced by the learned counsel for the appellants.</b></p><p><b>There being no substantial question of law arising for consideration in this second appeal, the same is accordingly dismissed.</b></p>', '17cfcd484607a94f5cab429f343f5303.jpeg', 'f1c6e1ca442fadee985c2088485a47bc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-03', 1, '', '', '2023-03-03 11:22:09', '2023-03-03 08:36:40'),
(2753, 'iyg9HqcOz2FF9F3FGssU4zIFM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Prevention of Corruption Act. Competent authority to grant sanction to prosecute head of the Department is the Cabinet. Minister in-charge has no power to grant such sanction. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Lakshman Rao Peshve Vs The Karnataka Lokayuktha Police.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 736 of 2018 decided on 8 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Inspector of Police registered the FIR against the petitioner for the offence under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988, alleging that, the petitioner-accused had amassed assets disproportionate to his known sources of income. During the course of investigation, the statement of the wife of the petitioner was recorded, and she was arraigned as accused No.2 for the offence punishable under Sections 109, 177, 468, 465 & 471 of IPC. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2.<span style=\"white-space: pre;\">	</span>The Lokayukta Police, on 25.06.2015, laid the charge sheet against the petitioner for the offence punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988, and against the accused No.2, wife of the accused No.1 for the offence punishable under Sections 109, 177, 468, 465 & 471 of IPC. The Sessions Judge by order, dated 16.7.2015, took cognizance of the aforesaid offences.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>Rule 21 of the Transaction Rules 1977, specifies that subject to the provision of Rule 20, all cases specified in Schedule I to these Rules shall be brought before the Cabinet. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space: pre;\">	</span>Rule 27 of the Transaction Rules, 1977 deals with the meeting of the Cabinet as directed by the Chief Minister.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 14.<span style=\"white-space: pre;\">	</span>Rule 28 of the Transaction Rules, 1977 specifies that the Chief Minister or, in his absence, any other Cabinet Minister, nominated by him, shall preside at a meeting of the Cabinet. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>Rule 29 of the Transaction Rules, 1977 specifies that, when a case has been decided by the Cabinet, the Secretary of the Department shall take action to give effect to the decision. Sub-rule (2) of Rule 29 of the Transaction Rules, 1977 specifies that, the decision of the Cabinet relating to each case, shall be separately recorded and shall be placed with the record of the case. An extract of the decision shall be sent to the Secretary of the Department concerned for necessary action.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>Rule 40 of the Transaction Rules, 1977 deals with the cases requiring the approval of the Governor under these rules or any provision of law and Bills to be assented to, or reserved for the consideration of the President by the Governor under the Constitution, shall be sent to the Secretary to the Governor for submission to the Governor, by the Secretary of the Department after perusal by the Minister-in-charge.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24.<span style=\"white-space: pre;\">	</span>Section 19 of the Prevention of Corruption Act, specifies that, no Court shall take cognizance of an offence under sections 7, 10, 11, 13 & 15 in the case of the person who is employed in connection with the affairs of the State and is not removable from his office save by or his sanction of the State Government.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 25.<span style=\"white-space: pre;\">	</span>Conjoint reading of the provisions contained in the Section 19 of the Prevention of Corruption Act, KCSR and also the Transaction Rules, 1977, it is clear that the competent authority to take a decision, as to whether sanction can be granted to prosecute the petitioner, who is the head of the Department, is the Cabinet, and upon taking such a decision, the Cabinet has to recommend to the Governor for approval, and upon approval by the Governor, the Secretary of the department concerned pass an appropriate order. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">26.<span style=\"white-space: pre;\">	</span>In the instant case, sanction to prosecute the petitioner, who is the head of the department has been granted by the Minister-in-charge, who is not the competent authority as specified under KCSR and also the Transaction Rules, 1977.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">28.<span style=\"white-space: pre;\">	</span>The petitioner is due for retirement on attaining the age of superannuation in the month of April, 2023. Hence, permitting the respondent to launch criminal prosecution afresh would be an abuse of process of law, since   the petitioner will be deprived of speedy trial guaranteed under Article 21 of the Constitution of India for no fault of him.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space: pre;\">	</span>The writ petition is allowed;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '305cd6a5f507f0e80efc78d4af2748d3.jpeg', '88ab8c405873cfc3d7da0ff415f6c34a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-04', 1, '', '', '2023-03-02 15:16:22', '2023-03-04 03:22:01'),
(2754, 'CJoQ7J8zU4xBs6CW7C8My1TCp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'No criminal proceedings can be initiated against Notary Public except by an officer authorised by the Central or State Government by general or special order in this behalf. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>H.R. Ramamurthy Vs K. Raju.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 9451 of 2017 decided on 21 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>A private complaint under Section 200 of Cr.P.C., was filed by the respondent, alleging that, the subject property was conveyed in favour of the complainant by accused No.1 by executing the registered sale deed after receiving sale consideration. Such being the case, the complainant received the suit summons in O.S.No.96/2015, filed by the daughters of the accused No.1 claming their legitimate share in the subject property. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>In the said suit, the complainant is arraigned as defendant No.6, and when the complainant issued legal notice to accused Nos.1 to 5, they have not replied to the legal notice and when the complainant enquired with the defendants No.6 and 7, they stated that, for commission amount, they have kept quite and acted as mediators. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>It was further alleged that, to make wrongful gain, by suppressing the truth, the accused Nos.1 to 5 have setup the daughters to file a false suit and the accused Nos.6 and 7 colluding with accused Nos.1 to 5 with an intention to cheat and defraud the complainant have given false evidence on created document. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>The cognizance taken of the offence under Sections 32,33,34,167,177,191,201,219,405,409,420,464,471 of IPC, by the learned Magistrate is impugned in this petition by accused No.8.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>The allegation against the petitioner-accused No.8 is that he had affixed the seal and signature on the sale deed executed by the accused No.1 in favour of the complainant, and thus, he has connived with other accused in setting up the daughters of the accused No.1 to filed a false suit for partition. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>The allegation against the petitioner-accused No.8 is during the course of discharge of his duty as a notary. Section 13 of the Notaries Act, 1952, specifies that, No court shall take cognizance of any offence committed by a notary in the exercise or purported exercise of his functions under this Act save upon complaint in writing made by an officer authorised by the Central Government or a State Government by general or special order in this behalf. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>In the instant case, the cognizance taken by the learned Magistrate on the basis of the private complaint filed by the respondent No.2 is one without authority of law and consequently, the cognizance taken of the aforesaid offences also stands vitiated. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">12.<span style=\"white-space: pre;\">	</span>In view of the preceding analysis, I am of the considered view that, the continuation of the criminal proceedings against the petitioner-accused No.8 will be an abuse of process of law.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> i)<span style=\"white-space: pre;\">	</span>The Criminal Petition is allowed, </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9ff1e9ce55dffc8980972df593c83e41.jpeg', '1c3d26d0a612ea993fdd633b3d676c7f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-03', 1, '', '', '2023-03-02 15:51:55', '2023-03-03 03:22:22'),
(2758, 'eeDvucNtihZWh8VrKjoY1DM9k', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Right of Persons with Disabilities Act. Visually impaired person cannot be driven to common law remedy when the offence committed against him attracts the RPD Act. Karnataka High Court. ', '<p><b>Basavanand Swamigalu Vs State of Karnataka and others </b></p><p><b>Writ Petition 100082 of 2023 decided on 16 February 2023.</b></p><p><b>Justice S.R. Krishna Kumar.</b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><b>In this petition, the petitioner seeks quashing of the impugned endorsement at Annexure-B dated 19.10.2022 issued by the Police Inspector, CEN Police Station, Dharwad District, whereby  the complaint dated 15.09.2022 submitted by the petitioner was reiected.</b></span></p><p><b>3. A perusal of the material on record, in particular Annexure-A dated 15.09.2022 will clearly indicate that apart from other offences said to have been committed against the petitioner-complainant, it is a specific allegation of the petitioner that he is a visually disabled and the offence committed against him are attracted by Section 92 of the Right of Persons with Disabilities Act, 2016 and consequently necessary action is to be taken by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">the respondent-Police against the accused person However, a perusal of the impugned endorsement at Annexure-B dated 19.10.2022 will indicate that the complaint of the petitioner has been rejected on the erroneous premise that only recourse available for the petitioner was to sue for defamation which is contrary to the averments made in the complaint, which go to show that the same constitute a cognizable offence. Under these circumstances, I am of the view that Annexure-B deserves to be set aside and necessary directions are to be issued to the Police.</span></b></p><p><b>ORDER </b></p><p><b>The petition is hereby allowed</b>.<br></p>', '25cde04bbae1bcefe65046240b255eff.jpeg', 'a09503d66840a99d2568c40964bae7fe.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-06', 1, '', '', '2023-03-05 18:00:23', '2023-03-06 13:41:28');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2759, 'b98TVKWvBX5iov594fK2rANFw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land acquisition under 1894 Act. Non-mentioning of Section 5A in the report does not render the acquisition proceedings bad. Supreme Court.  ', '<p><b>Indore Development Authority Vs <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Burhani Grih Nirman Sahakari Sanstha Maryadit Sneh Nagar and Others. </span></b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Civil Appeal 5071 of 2022 decided on 3 March 2023.</b></p><p><span style=\"-webkit-text-size-adjust: 100%;\"><b>Justice M.R. Shah and Justice B.V. Nagarathna. </b></span></p><p><b>1A. Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 28.08.2014 passed by the High Court of Madhya Pradesh at Indore in Writ Appeal No. 873 of 2008 and other connected writ appeals, by which the Division Bench of the High Court has dismissed the said appeals, confirming the common judgment and order dated 10.12.1998 passed by the learned Single Judge whereby the learned Single allowed the respective writ petitions against finalisation of Scheme No. 97 under Section 50 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (hereinafter referred to as <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">the ‘Adhiniyam’) and the subsequent land acquisition proceedings undertaken by the State of Madhya Pradesh under Sections 4 and 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the ‘Act, 1894’), the Indore Development Authority has preferred the present appeals.</span></b></p><p><b>2. The facts leading to the present appeals in a nutshell are as under: </b></p><p><b>The Indore Development Authority (hereinafter referred to as the ‘IDA’) passed a Resolution under Section 50(1) of the Adhiniyam on 13.03.1981 declaring its intention to frame Scheme No. 97 – a residential scheme providing for other connected land uses. For the sake of convenience, Scheme No. 97 was divided into four parts, i.e., Part I, II, III & IV. The declaration of intention of the said scheme was further published in the form of public notice on 10.07.1981. Vide its order dated 24.12.1983, the State Government empowered all the Collectors and Divisional Commissioners to act as ex-officio Deputy Secretaries of the Department of Revenue, Government of Madhya Pradesh and ex-officio Secretary of the said Government respectively, for disposal of the cases under Sections 4, 5 6 & 17 of the Act, 1894. After completing various formalities, the IDA published Scheme No. 97 on 08.06.1984 as required under Section 50(7) of the Adhiniyam and the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">Scheme was also published in the Official Gazette on the said date.</span></b></p><p><b>2.3 The Deputy Collector and Land Acquisition Officer filed its report <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">under section 5A of the Act, 1894 before the Collector for approval and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">also submitted the notification under section 6 of the Act, 1894 for </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">signature of the Collector. The same was duly approved by the Collector.</span></b></p><p><b>2.7. Feeling aggrieved and dissatisfied with a common judgement and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">order passed by the learned Single Judge, quashing and setting aside the entire acquisition proceedings as well as quashing and setting aside Scheme No. 97 on the ground that the same had lapsed in view of Section 54 of the Adhiniyam, the IDA preferred the writ appeals before the Division Bench of the High Court. By the impugned common judgment and order, the Division Bench of the High Court has dismissed the said appeals, which has given rise to the present appeals.</span></b></p><p><b>8. It is the case on behalf of the Development Authority that in the  present case since negotiations failed and the Development Authority failed to acquire the land by agreement, the Development Authority requested the State Government on 4.06.1987 to acquire the land, which request was made within a period of three years from the date of finalization of the scheme. Therefore, it is the case on behalf of the Development Authority that the scheme shall not have lapsed under section 54 of the Adhiniyam. It is the case on behalf of the Development Authority that taking various steps between 8.06.1984 and 4.06.1987 can be said to be in furtherance of, or commencing implementation of the scheme.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><br></span></b></p><p><b>However, on the other hand and as per the High Court, actual implementation of the scheme is a must and that there were no substantial steps to implement the scheme within three years. That to make the request four days before the completion of three years would not be sufficient and therefore the scheme has lapsed under section 54 of the Adhiniyam. As observed hereinabove, the words used in Section 54 of the Adhiniyam are \"fails to commence implementation\". That does not mean that there must be implementation of the scheme within the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">time stipulated under section 54 of the Adhiniyam. There is a clear distinction between the words \"implementation\" of the scheme and \"to commence implementation\".</span></b></p><p><b>10. At this stage, Rule 19 of the M.P. Nagar Tatha Gran Nivesh Niyam, 1975 r/w Section 56 of the Adhiniyam are required to be referred to. As per section 56 of the Adhiniyam r/w Rule 19 and for the purposes of land acquisition under section 56 of the Adhiniyam, within three years from the date of publication of the final town development scheme under <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">section 50, the Town and Country Development Authority shall proceed to acquire the land required for the implementation of the scheme. The words used are \" proceed to acquire\" and not \"actual acquisition\". The intention of the legislature thus seems to be very clear and unambiguous. Therefore, when the Statute provides certain things to be done within the stipulated time mentioned in the Act, the Authority is to be given such time, more particularly while dealing with the scheme which has been framed for the entire area and for the public purpose. In the present case, Scheme No. 97 has been framed and the lands have been acquired for residential, park and industrial purposes. Any other meaning may frustrate the purpose of framing of the scheme for residential, part and industrial purposes.</span></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">11. In view of the above and when within three ears various steps were taken for implementation of the scheme including the steps to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">acquire the land by negotiations and even thereafter on failure to acquire the land by negotiations approaching the State Government to acquire the land under the Land Acquisition Act, the High Court has erred in declaring that the scheme has lapsed under section 54 of the Adhiniyam. The High Court has adopted too narrow a meaning while interpreting and/or considering section 54 of the Adhiniyam.</span></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">12. So far as quashing and setting aside </span>the entire acquisition  proceedings including sections 4 & 6 notifications issued under the provisions of the Land Acquisition Act with respect to the lands in question on the ground that there was no proper delegation of power to the Collector with regard to Section 5A of the Act, is concerned, it is required to be noted that in the present case, the State Government vide its letter dated 22.3.1985 delegated its power to the District Collector as Deputy Secretary of the Revenue Department and to the Commissioner of the division to act as Secretary of the Revenue Department and to adjudicate matters related to land acquisition by exercising powers given under Sections 4, 5, 6 and 17 of the Act, 1894. Merely because Section 5A has not been mentioned in the said order, the entire acquisition proceedings including notifications under Sections 4 & 6 of the Act, 1894 and more particularly the declaration which was issued after considering the report/objections under section 5A cannot be declared illegal.<br></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><b>12.3 In the instant case also, when the Collector has exercised the power of the appropriate government and a declaration under section 6 of the Act has been issued after considering the report on the objections under Section 5A of the Act, the High Court has seriously erred in quashing and setting aside the entire acquisition proceedings on the aforesaid ground.</b></span></p><p><b>13. So far as the third ground on which the scheme and the entire acquisition proceedings have been set aside, namely, the huge and big chunk of land out of the total land sought to be acquired by the Development Authority which has been released, is concerned, it is required to be noted that out of the total land acquired, 68.11% of the land has been developed and 31.89% has not been developed due to interim orders passed by the Courts. Even otherwise, it is required to be noted that out of the total land covered under the scheme, i.e., 332.616 hectares (277.853 hectares of land acquired through award plus 44.763 hectares of the land owned by the Authority), land has been released for various purposes to the extent of 54.660 hectares and still the remaining land would be to the extent of 267.956 hectares out of which the land <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">es. According to the Development Authority, 111.156 hectares of the land covered under the scheme was released in favour of Housing Cooperative Societies because the object of the housing societies and the scheme was the same. According to the Development Authority, the Authority/State Government had released the land only of those societies who had either developed or started development of colonies or had acquired the title to the land or had obtained exemption under section 20 of the Urban Land (Ceiling & Regulation) Act, 1976 before publication of the final scheme under section 50(7) of the Adhiniyam. According to the Development Authority, 104.524 hectares of land covered under the scheme which was released from the scheme, the land use of the said land was either agricultural or regional park. Release of the land having area of 46.116 hectares of land was in response to objections under section 5A of the Act because of certain reasons like existing houses, religious places, different land use etc.</span></b></p><p><b>13.1 Thus, from the above, it cannot be said that the release of the land was arbitrary and/or with an object of undue favour to those persons whose lands have been released. As rightly submitted that even otherwise such lands were to be acquired for residential, park and industrial purposes, release of the land which according to the authority <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">was for valid reasons or valid grounds has not prejudiced or affected the integrity of the scheme. The end result of the release of some land is that the total area of the scheme is lesser to that extent but the integrity of the scheme remains the same. At this stage, it is required to be noted that some of the lands have already been used by the authority for the purpose of a park which is used for the benefit of local people. Under the circumstances, the third ground on which the scheme and the entire acquisition proceedings have been quashed by the High Court does not stand on its legs and the said finding is unsustainable.</span></b></p><p><b>14. In view of the above and for the reasons stated above, the present appeals are allowed and the impugned common judgment and order passed by the High Court dismissing the writ appeals and the common judgment and order passed by the learned Single Judge declaring Scheme No. 97 as having lapsed under section 54 of the Adhiniyam and quashing and setting aside the entire acquisition proceedings with respect to the lands in question, are unsustainable and the same deserve to be quashed and set aside and accordingly are hereby quashed and set aside. However, in the facts and circumstances of the case, there shall be no order as to costs.</b></p>', '496c35371a8f17609f38fb0074e158fc.jpeg', '8d231c379b7df1170dc745e5e7a901e7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-06', 1, '', '', '2023-03-05 18:44:37', '2023-03-06 09:28:44'),
(2760, 'AywE4vH34zU014qTFiL4u6Ukl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Execution Court cannot mechanically issue notice on application of third party claiming right over the property in execution. Karnataka High Court dismisses frivolous claim by imposing cost of Rs. 2 lakhs. Karnataka High Court. ', '<p><b>M.Abdul Kareem and others Vs State of Karnataka and others.</b></p><p><b>Writ Petition 3837 of 2023 decided on 2 March 2023. </b></p><p><b>Justice M. Nagaprasanna. </b></p><p><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">The petitioners are before this Court calling in question order dated 14-02-2023 passed by the LXXII Additional City Civil and Sessions Judge, Mayo Hall, Bangalore in Execution Petition No. 15061 of 2006 on I.A.No.4 of 2023 filed by respondents 6 to 11.</b></p><p><b>2. Brief facts that lead the petitioners to this Court in the subject petition, as borne out from the pleadings, are as follows: -</b></p><p><b> An agreement of sale was executed on 23-08-1978 in favour of one Sri B.R. Rangaswamy by Sri D.Syed Younus. The agreement resulted in a suit being filed by Sri B.R.Rangaswamy in O.S.No.8443 of 1980 for specific performance of the agreement of sale. The aforesaid suit came to be dismissed by the civil Court on 15-04-1989. Against dismissal of the suit, Sri B.R. Rangaswamy files a regular first appeal in R.F.A.No.374 of 1989 calling in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">question the dismissal of suit in O.S.No.8443 of 1980. Ten years thereafter on 05-03-1999 the R.F.A. was allowed by this Court änd the suit for specific performance was decreed. Against the said decree, the defendants in the suit, filed civil appeals before the Apex Court in Civil Appeal Nos. 1159 and 1150 of 2000 which came to be dismissed by order of the Apex Court on 08-02-2006.</span></b></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">5. During the pendency of the said suit, the petitioners  filed another application in Execution case No.15061 of 2006 in I.A.No.1 of 2022 under Order I Rule 10 of the CPC to implead themselves as respondents in the execution case and another application in I.A.No.2 of 2022 under order XXI Rule 29 of the CPC for stay of execution proceedings. In terms of an order dated 05-01-2023, the concerned Court rejects the application seeking </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">impleadment into the proceedings filed under Order 1 Rule 10(3) r/w Order XXI Rule 92(4) of the CPC with costs of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">25,000/-. The order dated 05-01-2023 was challenged before this Court in Writ Petition No. 1173 of 2023 which is said to be pending consideration.</span></b></p><p><b>11. The afore-narrated facts, dates, link in the chain of events are not in dispute as they are all a matter of record. What drives the petitioners to this Court is an order in the execution case directing handing over of possession of the property which was the subject ratter of execution proceedings to the decree holders. Therefore, a little nistory to the case is required to be noticed.</b></p><p><b>12. As observed hereinabove, agreement of sale was executed on 23-08-1978 by Sri D.Syed Younus, vendor of the suit schedule property in favour of Sri B.R. Rangaswamy, father of the present decree-holders. The agreement of sale was not acted upon by Syed Younus which led B.R. Rangaswamy to the civil Court in O.S.No.8443 of 1980.</b></p><p><b>In terms of the aforesaid decree, the suit for specific performance was decreed and a direction was issued to execute the sale deed on or before 05-05-1999. The cross-objections filed by Sri D.Syed Younus comes to be dismissed. Against the judgment, in the R.F.A. the matter was taken up to the Apex Court in Civil Appeal Nos. 1159 and 1160 of 2000 which come to be dismissed on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">of sale dated 23-08-1978 which by then had been 28 years old. After all these proceedings and being a defendant/judgment-debtor, Sri D.Syed Younus executed an agreement of sale on 10-03-2006 of the very suit schedule property immediately after dismissal of civil appeal by the Apex Court in favour of the father of petitioners 1, 3, 4 and 5 herein, one Sri S.M.Muneer. Since the Apex Court had rejected civil appeals, the decree-holders as legal heirs of B.R.Rangaswamy filed execution case in Execution Case No. 15061 of 2006. During the pendency of the said execution case in which the judgment debtor was a party, the judgment debtor Sri D.Syed Younus represented by GPA holder executed a sale deed in favour of Sri S.M.Muneer, the father of petitioners 1, 3, 4 and 5 and husband of petitioner No.2 on 28-02-2008. Therefore, the petitioners herein are purchasers from the hands of Sri.D.Syed Younus, the judgment debtor during the pendency of execution proceedings. They are therefore purchasers pendente lite.</span></b></p><p><b>16. In the aforesaid circumstances and glaring facts, reference being made to the judgment of a three Judge Bench of the Apex Court in the case of RAHUL S.SHAH v. JINENDRA KUMAR GANDHI AND OTHERS, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">The Apex Court clearly holds that the Court exercising jurisdiction under Section 47 or under Order 21 of the CPC must not issue notice on the application of a third party claiming right in a mechanical manner. The Court should refrain from entertaining any such application that has already been considered by the Court while adjudicating the suit. The Apex Court also notices that there is steady rise of proceedings akin to a retrial at the time of execution, causing failure of realization of fruits of decree and relief which the party seeks from the Court despite there being a decree in their favour. The Apex Court records that the decree-holder is deprived of the fruits of litigation and the judgment-debtor, in abuse of process of law, is allowed to benefit from the subject matter which he is otherwise not entitled to. The findings of the Apex Court (supra) would become applicable in all its fours, to the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\">case at hand, as the petitioners are wanting to stall the fruits of the decree, which the Respondent Nos.6 to 11 are entitled to; by one way or the other, contending that it was a fraud, which have all been answered against them by the co-ordinate Bench and the Apex Court has rejected the S.L.P. against those findings. In the light of the unequivocal facts and the judgment of the Apex Court in the case of RAHUL S.SHAM (supra), I deem it appropriate to dismiss the petition with exemplary costs.</span></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; -webkit-tap-highlight-color: transparent; -webkit-text-size-adjust: 100%;\"><b>17. For all the aforesaid reasons, the writ petition lacking in merit, stands dismissed, with exemplary costs of 12,00,000/- payable to respondents 6 to 11. The petitioner shall pay such costs within eight weeks from the date of receipt of a copy of this order. </b></span></p>', '0c7b170cd279d80f6ecf5343fdd35a79.jpeg', '11e565877875c38e02981e0d7573cee4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-06', 1, '', '', '2023-03-05 19:37:46', '2023-03-06 12:30:53'),
(2761, 'nW2GSxm8I8gYjpaheb2ijgvis', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court upholds NEET of National Medical Commissioner and counselling process seat matrix stipulating quotas for admission in private Homeopathic Medical Colleges', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Karnataka State Private Homeopathic Medical College Managements Association and others Vs The Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. 25723 of 2022 decided on 3 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Alok Aradhe and Justice Vijaykumar A. Patil.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner No.1 is an Association of Private Homeopathic Medical Colleges in the State of Karnataka. The members of petitioner No.1 - Association with an intent to impart education in Homeopathy system of medicine have established Colleges and teaching hospitals under the provisions of Homeopathic Central Council Act, 1973, in different parts of the State. In the said colleges, education is imparted in homeopathy in Under Graduate and Post Graduate courses.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space:pre\">	</span>The relevant facts need mention, which are stated hereinafter. The State Government issued a notification dated 27.01.2018, wherein it was provided that in view of decision taken by ministry of Ayurveda, Yoga, Unani, Sidda and Homeopathy, it has decided to adopt National Eligibility Entrance Test (NEET) in place of Common Entrance Test for Ayush course in Government as well as private colleges in the State of Karnataka from the academic session 2018-19 and the admission shall be based on the rank in NEET examination. The petitioners thereupon challenged the said order in a writ petition viz., W.P.No.41486-534/2018  in which an interim order was granted on 11.10.2018, by which petitioners were permitted to admit students who were meeting the academic qualifications prescribed in the Regulations but have not appeared in NEET.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 3.<span style=\"white-space:pre\">	</span>For the academic year 2019-20, the Council for Homeopathy amended the Homeopathy (Degree Course) Regulations, 1983. Regulation 4A was substituted with Regulation 4A(i), which provided that there shall be uniform entrance examination to all medical institutions at the under graduate level viz., NEET for admission to under graduate courses, which was to be conducted by an authority designated by Central Government. The petitioners thereupon once again filed an application in W.P.No.41486-534/2018 to pass an interim order for academic session 2019-20. A division bench of this court by an order dated 20.09.2019 passed an interim order permitting the petitioners to make admission to the seats which remained unfilled after all NEET qualified students had made their choices.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>For the academic session 2022-23 also, large number of seats were vacant. Thereupon the petitioners once again filed an interlocutory application in W.P.No.1261/2022. Thereafter, a division bench on 22.11.2022 passed an interim order, permitting admissions to students academically qualified but without NEET ranking. The said order was challenged by National Commission for Homeopathy before Hon\'ble Supreme Court. The Civil Appeal was decided by an order dated 13.02.2023 by which order passed in W.P.No.1261/2022 dated 22.11.2022 was set aside and the matter was remitted to the High court to decide the same on merits finally before last date proposed for admission, which was to be extended by National Medical Council. The petitioners thereafter filed an application for early hearing 20.02.2023 which was listed before this Court on 22.02.2023. Thereupon, this Court directed the petition to be listed for final hearing on 01.03.2023. The arguments were heard on 02.03.2023 as well as today. Admittedly, the last date for admission to B.H.M.S. course is tomorrow i.e., 04.03.2023. In the aforesaid factual background, this petition arises for our consideration.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>We have considered the submissions made on both sides and have perused the record. The Act 2020 was enacted inter alia with an object to provide for  medical  education system which improves access to quality and affordable medical education, ensures availability of adequate and high quality homeopathic medical professionals in all parts of the country. The fundamental challenge in this writ petition is to Section 14 of the Act, which provides that there  shall  be Uniform National Eligibility cum  Entrance  Test  for  admission to under graduate Homeopathy in all the institutions governed under the Act. Section 43 of the Act  provides  that the Commissions and Autonomous Boards shall  be  bound  by the directions on the question of policy as the Central Government may give in writing to them from time to time. Section 44 deals with the power of the Central Government to give directions to State Government for carrying out the provisions of the Act. Section 55 deals with the power of the Commission to make Regulations. Section 55(2)(m) deals with power to frame regulations in the manner of conducting common counselling by the designated authority for admission to the post graduate seats in all medical institutions under Section 16(3) of the Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>It is well settled in law that validity of an Act can be assailed either on the ground of lack of legislative competence or on the ground that the same contravenes either any of the fundamental rights or the constitutional provisions. The Act 2020 has been enacted in exercise of powers under Entry 65 and 66 of List 1 of VIIth Schedule to the Constitution of India. There is no challenge to the provisions of the Act on the ground that Parliament lacks legislative competence to enact the Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>28.<span style=\"white-space:pre\">	</span>In the instant case, by enacting Section 14, the right of the petitioners to admit students in educational institutions has merely been regulated and  the  same  does not amount to violation of the rights  of  the  petitioners under the constitution or any other enactment. Therefore, principle of doctrine of non retrogression is not applicable to the facts of the case. In view of aforesaid enunciation of law by Hon\'ble Supreme Court, it is held that Section 14 of the Act neither suffers from manifest arbitrariness nor the test of proportionality or in violation of the doctrine of non retrogression. Therefore, the challenge to constitutional validity of Section 14 of 2020 Act is repelled.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>30.<span style=\"white-space:pre\">	</span>The validity of aforesaid provisions is assailed on the ground that Central Homeopathy Council comprises of officers of the Government and the aforesaid provisions are in violation of doctrine of non retrogression. Section 3 of the 2020 Act deals with the power of Central Government to constitute National Commission for Homeopathy. Section 4 of the 2020 Act provides for composition of Commission. The commission comprises of the persons to be nominated as ex officio members of the commission as well as the persons referred to in Section 4(4) of the Act, which can be appointed as part time members of the Committee. Section 10 of the 2020 Act, deals with powers and function of the Commission. The contention that Commission comprises only of officers of the Central Government is incorrect, as the Commission comprises part time members also. The  Commission  has been constituted under the 2020 Act to perform its functions under the Act. The aforesaid provisions by no stretch of imagination suffer from the doctrine of non  retrogression. The aforesaid provisions have also not been shown to be per se arbitrary. Therefore, the contention that the aforesaid provisions are manifestly arbitrary or are unworkable cannot be accepted.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>34.<span style=\"white-space:pre\">	</span>Even assuming that Section 55(2)(m) of the 2020 Act does not authorize the Central Government to give advisory / instructions to National Testing Agency, the provision itself cannot be struck down. At the most, order, if any, issued under the said provision can be struck down. Therefore, challenge of the petitioners to the power to frame Regulations in the matter of conducting the common counselling by designated authority for admission to post graduate seats in all medical institutions does not suffer from any infirmity. The aforesaid challenge is also repelled.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>36.<span style=\"white-space:pre\">	</span>The 2022 Regulations have been framed in exercise of powers under Section 55(2) of the 2020 Act. The challenge to the  Regulation made  on behalf of the  petitioners does  not fall in any of the aforementioned grounds. Regulation 4 provides for eligibility criteria for admission and manner of admission, which does not suffer from any infirmity much less by doctrine of proportionality. The challenge to the validity of the 2022 Regulations also fails and is hereby repelled.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>38.<span style=\"white-space:pre\">	</span>From perusal of Section 55 of the 2020 Act, which deals with power to make Regulations, it is evident that  the same does not confer any power to frame Regulations with retrospective effect. The Regulations dated 06.02.2022 do not provide that they would operate from any anterior date. Similarly, the guidelines  dated  18.10.2022  issued  in  exercise of powers under Section 43 and  44  of  the  2020  Act  also cannot apply to process of admission, which was already commenced on 17.07.2022. It is noteworthy that Government order dated 13.10.2022 was passed after consulting the petitioners. The petitioners in pursuance of  aforesaid  order have admitted the students in their quota of seats. Therefore, the same binds the petitioners.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>39.<span style=\"white-space:pre\">	</span>In view of preceding analysis, our conclusions are as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i) Sections 3, 4, 10, 12, 14, 43, 44  and 55(2)(m) of the National Commission for Homeopathy Act, 2020 are valid and constitutional. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>The National Commission for Homeopathy (Homeopathy Degree Course - B.H.M.S) Regulation, 2022 are also intra vires. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space:pre\">	</span>The guidelines framed by Ministry of Ayush dated 18.10.2022 and the Regulations framed by National Commission for Homeopathy dated 06.12.2022 do not apply to the process of admission to B.H.M.S under graduate course which have already commenced on 19.07.2022. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv)<span style=\"white-space:pre\">	</span>The Government Order dated 13.12.2022 making the 2022 Regulations applicable in respect of admission to B.H.M.S. under graduate course for academic session 2022-23 is quashed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (v)<span style=\"white-space:pre\">	</span>The petitioners shall be permitted to admit students on remaining vacant seats on the basis of academic eligibility for the academic session 2022-23 only. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>With the aforesaid directions, the writ petition<span style=\"white-space:pre\">	</span>is disposed of.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7b384ca0047c40901d06d732f7d313cb.jpeg', '6c329f201a2efa5a23075de25e02243d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-07', 1, '', '', '2023-03-06 12:43:05', '2023-03-07 12:27:03');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2762, 'WmYThpM28DJ8YSrSev8msoKrI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'If possession of property is handed over before or subsequent to execution of document, stamp duty under Article 5(e)(i) of the Karnataka Stamp can NOT be levied. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vijay Kumar Subbanna Vs S.S Ashoka H. Shivanna and Others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 52902 of 2016 decided on 8 October 2021.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>1. The petitioner is before this Court seeking for the following reliefs :</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>“Wherefore, it is most respectfully prayed that this Hon’ble Court be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing the impugned order dated 12.07.2016 on application under Sections 33 and 34 of K.S. Act passed by the Principal Civil Judge and JMFC, Srirangapatna, in O.S.No.156/2008 found at Annexure-E, allow this writ petition with cost, in the interest of justice and equity.”</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2. The suit in O.S.No.156/2008 had been filed seeking for specific performance of the agreement of sale dated 03.06.1995 on which basis a sale deed is stated to have been executed on 22.02.2002.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3. In the said proceedings, an application under Sections 33<span style=\"white-space: pre;\">	</span>and<span style=\"white-space: pre;\">	</span>34 of the Karnataka Stamp Act, 1957 (hereinafter referred to as ‘the Act’ for short) read with Section 151 of CPC was filed seeking for impounding the documents dated 06.09.1993 stated to be an agreement of sale, another agreement of sale dated 03.06.1995, and a sale deed dated 22.02.2002 on the ground that it is in pursuance of the agreement of sale dated 06.09.1993 and 03.06.1995 that the plaintiff is in possession of the suit schedule property. The said possession is stated to have been handed over on 18.07.1995. It is further contended that in the sale deed dated 22.02.2002, there being a recital that possession has been handed over on 18.07.1995.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>4. The said sale deed ought to have been stamped as a conveyance in terms of Article 5(e)(i) of the Act. The said application came to be objected to and the trial Court passed an order on 12.07.2016 partially allowing the said application. It is on account of the rejection&nbsp; of the other part, the petitioner/defendant No.2 is before this Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>5. Sri Shivakumar N., learned Counsel appearing for the petitioner by referring to the agreement of sale dated 03.06.1995 would submit that there is a covenant that possession would be handed over to the purchaser on completion of certain formalities. It is in pursuance of the formalities being completed that on 18.07.1995, the possession was handed over which&nbsp; was recorded in the sale deed dated 22.02.2002. The agreement of sale as also the sale deed are not registered and are not properly stamped. Therefore, they ought to have been impounded, proper stamp duty calculated and penalty levied before the said documents would be taken up for consideration in evidence.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>6. As such his submission is that since possession was handed over in pursuance to the agreement of sale dated 03.06.1995 on 18.07.1995. The agreement of sale dated 03.06.1995 ought to have been stamped in terms of Article 5(e)(i) of the Act thereby invoking Article 20 of the Act requiring payment of stamp duty on the basis of the market value of the property as a conveyance.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>7. Per contra, Sri Ravi Kumar M.C., learned counsel appearing for the respondent No.1/plaintiff would submit that the possession has not been handed over under the agreement of sale deed dated 03.06.1995 nor the possession has been handed over under the sale deed dated 22.02.2002. The possession was handed over separately on 18.07.1995. Though handing over of the possession would be based on the agreement of sale dated 03.06.1995, the possession not having been handed over in the said agreement of sale Article 5(e)(i) of the Act is not applicable. Hence, the impugned order of the trial Court is proper and correct and does not require any interference by this Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>8. Heard Sri Shivakumar N., learned Counsel for the petitioner and Sri Ravi Kumar M.C., learned counsel appearing for the respondent No.1 and perused the papers.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>9. On the basis of the submissions made, the points which require to be determined by this Court are:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>1. Whether if possession is handed over subsequent to the execution of the documents would such documents have to be stamped under Article 5(e)(i) of the Act by invoking Article 20 of the Act?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2. Whether if the possession being handed over earlier would require the sale deed to be stamped under Article 20 of the Act?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3.What order?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>10. Answer to Point No.1: Whether if the possession is handed over subsequent to the execution of the documents would such documents have to be stamped under Article 5(e)(i) of the Act by invoking Article 20 of the Act?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>10.1. The short conspectus of the matter is that under the agreement of sale deed dated 03.06.1995 possession was agreed to be handed over on the happening of an event in future including obtaining certain permission, it is clear that the possession was not handed over under the agreement of sale dated 03.06.1995.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>10.2. A document is required to be stamped on the basis of what the document contains and conveys. The said document having been executed on 03.06.1995 ought to be considered on the date on which it is executed i.e. 03.06.1995. The future covenant may happen or may not happen. Such an event cannot be taken into consideration for the purpose of determining the stamping a document executed on 03.06.1995.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">10.3.</span><span style=\"font-size: 1rem;\">&nbsp;</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">A perusal of the covenants in the agreement of sale deed dated 03.06.1995 would indicate that it is only upon certain permission being issued and the compound wall being constructed, the said possession would be handed over. If the permission had not been received and the compound wall had not been constructed, the possession could not have been handed over.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">10.4.</span><span style=\"font-size: 1rem;\">&nbsp;</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">The interpretation now sought to be given is that by virtue of the agreement of sale, the possession was agreed to be handed over on the contingent event occurring in future and therefore, the possession was handed over on 18.07.1995, hence, the document executed on 03.06.1995 is required to be stamped as if possession was handed over on such document in terms of Article 5(e)(i) of the Act by invoking Article 20 of the Act cannot be sustained.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">10.5.</span><span style=\"font-size: 1rem;\">&nbsp;</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">The document as stated above would have to be regarded in the context and at the time at which the said document was executed. There being no possession which has been handed over under the agreement of sale dated 03.06.1995, it cannot be said that article 5(e)(i) of the Act would be applicable, let&nbsp; alone invoke Article 20 of the Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">10.6.</span><span style=\"font-size: 1rem;\">&nbsp;</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Hence, I answer point No.1 by holding that if possession is handed over subsequent to the execution of the documents such documents cannot be stamped under Article 5(e)(i) of the Act by invoking Article 20 of the Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">11.</span><span style=\"font-size: 1rem;\">&nbsp;</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Answer to Point No.2: Whether the possession being handed over earlier would require the sale deed to be stamped under Article 20 of the Act?</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">11.1.</span><span style=\"font-size: 1rem;\">&nbsp;</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">The second contention of the learned counsel for the petitioner is that since the sale deed dated 22.02.2002 contains a recital that the possession was handed over on 18.07.1995. The said sale deed is required to be stamped under Article 20 of the Act as a conveyance. The sale deed only records the possession having been handed over on 18.07.1995 and not that the possession has been handed over under the sale deed dated 22.02.2002.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">11.2.&nbsp;</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">The grievance of the plaintiff is that despite the sale deed having been executed, the defendants having collected the entire consideration, the defendants have not come forward to execute a sale deed. Therefore, a suit for specific performance had been filed, seeking for specific performance of the sale agreement dated 03.06.1995 as contained in sale deed dated 22.02.2002 that matter would have to be adjudicated during the trial on each of the parties leading evidence as regards their respective case.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">11.3.</span><span style=\"font-size: 1rem;\">&nbsp;</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">For the purpose of stamping, mere recording of earlier event which has happened on 18.07.1995 in a sale deed dated 22.02.2002 which has not been registered and not acted upon cannot be a ground to contend that the stamp duty has to be paid in terms of Article 20 of the Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">11.4.</span><span style=\"font-size: 1rem;\">&nbsp;</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">As answered in point No.1 above, the possession has been handed over at the point of time different than the execution of agreement of sale deed dated 03.06.1995. With respect to the sale deed, the possession was handed over anterior to the point of time of execution of the Sale Deed. Thus in my considered opinion, under the sale deed possession was not handed over. Hence, the same does not come under Article 20 of the Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">11.5.</span><span style=\"font-size: 1rem;\">&nbsp;</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">I Answer to Point No.2 by holding that possession being handed over earlier in point of time to the execution of the sale deed it cannot be said that possession was handed over under the Sale Deed requiring it to be stamped under Article 20 of the Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">12.</span><span style=\"font-size: 1rem;\">&nbsp;</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Answer to Point No.3: What Order?</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">12.1.</span><span style=\"font-size: 1rem;\">&nbsp;</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">In view of the above, I do not find any&nbsp; infirmity in the order passed by the trial Court. The agreement of sale deed dated 03.06.1995 was been stamped with a stamp of Rs.10/- when it had to be stamped with a stamp of Rs.200/- under Article 5(e)(i) of the Act. Considering the same, the trial Court has come to the conclusion that there is deficit of Rs.190/- and therefore, impounded the same and levied penalty which is proper and correct.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">12.2.</span><span style=\"font-size: 1rem;\">&nbsp;</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">The trial Court has also come to a conclusion that the possession has not been handed over under the sale deed dated 22.02.2002 and does require to be stamped under Article 20 of the Act is also correct.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">12.3.</span><span style=\"font-size: 1rem;\">&nbsp;</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Since there is no legal infirmity in the order passed by the trial Court, the petition stands dismissed.</span></b></p>', 'ab160d7433667ce6c394af7a84033beb.JPG', '43fda39cc083408b1aab353c9db6859b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-06', 1, '', '', '2023-03-06 12:52:25', '2023-03-06 13:21:56'),
(2764, '3Xwq9jTHKJs4U2YhMz9c4TS7e', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Tax cannot be levied on telecommunication towers erected by the Bharat Sanchar Nigam Limited (Government of India undertaking) on the immovable property belongs to it, or the Union of India save as the parliament may by law provide. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.S. Savithramma and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 8114 of 2009 decided on 1 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The petitioners have established the network by erecting telecommunication towers on the private properties and various locations after obtaining permission from the owners of the immovable properties. Petitioner Nos.1 and 2 are the owners of the properties on which the telecommunication towers are installed by petitioner Nos.3 to 10 who are the service providers. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>Such being the case, respondent-BBMP is seeking to levy tax on the telecommunication towers installed by the petitioners within its jurisdiction by expanding the definition of building to include telecommunication towers under the impugned Rules.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>I have examined the submissions made by the learned counsel for the parties. The points that arise for consideration are as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space: pre;\">	</span>Whether the term `building\' defined under Section 2(1-A) prior to amendment of Karnataka Municipal Corporations Act, 1976 in the year 2015 includes `telecommunication tower\'?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> ii)<span style=\"white-space: pre;\">	</span>Whether the Rules, 2009 framed by the subordinate legislation is in excess of power conferred under Section 421 read with Sections 108A and 110 of the Act, 1976?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> iii)<span style=\"white-space: pre;\">	</span>Whether the Bengaluru Bruhat Mahanagara Palike can levy tax on telecommunication towers erected by the Bharat Sanchar Nigam on the properties belonging to it or the Union of India?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Point No.(i):</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>Section 2(1-A) of the Act, 1976 specifies that the telecommunication tower erected on the surface of the property or on the top of the building does not fall under the definition of building. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>Section 103 of the Act, 1976 specifies that tax can be levied by the Corporation subject to general or special orders of government.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 15.<span style=\"white-space:pre\">	</span>Section 103(b) of the Act, 1976 specifies that the Corporation may impose tax at such rate not exceeding those specified in the Act on building or vacant land or both, but does not specify for levying tax on the telecommunication tower.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>Section 108-A refers to tax on building and in para-c of third proviso to section 108-A(2) after the words other class of building, the word `structure\' is mentioned and the word `structure\' has to be read in conjunction with the term `building\'   as defined in Section 2(1-A) of the Act, 1976 and not independently so as to mean that `structure\' includes telecommunication tower. Section 2(1-A) was amended by Act No.6 of 2015 with effect from 9.1.2015 and under the said amendment, the telecommunication towers were brought within the definition of `building\' and also within the taxable net. If the telecommunication towers were already amenable to tax under Section 108-A, there was no requirement to amend the definition of building under Section 2(1-A) to include the telecommunication tower within the meaning of building.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>21.<span style=\"white-space:pre\">	</span>The Hon\'ble Supreme Court in the case of Sundeep Kumar Bafna v. State of Maharashtra [(2014) 16 SCC 623] has held that when the High Court is often encountered with two or more mutually irreconcilable decision of the Supreme Court cited at the bar, the inviolable recourse is to apply the earliest view as the succeeding one would fall in the category of per incuriam. The Hon\'ble Supreme Court in the case of Hyder Consulting (UK) Ltd. -vs- State of Orissa [(2015) 2 SCC 189] has held that a decision can be said to be given per incurium when the court of record has acted in ignorance of any previous decision of its own, or a subordinate court has acted in ignorance of a decision of the court of record. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>22.<span style=\"white-space:pre\">	</span>In view of the aforesaid ratio enunciated by the Hon\'ble Supreme Court, the decision rendered in the case of Ahmedabad Municipal Corporation supra cannot be held to be binding precedent, and the decision of the Hon\'ble Supreme Court in the case of Indian City Properties Ltd (supra) wherein it has been held that all structures are not building is binding.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Point No.(ii):</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24.<span style=\"white-space:pre\">	</span>The Hon\'ble Supreme Court in the case of State of Karnataka v. H. Ganesh Kamath, [(1983) 2 SCC 402] has held that Rule cannot travel beyond the scope of the enabling Act or be inconsistent therewith or repugnant thereto. Similarly, the Hon\'ble Supreme Court in the case of V. Sudeer v. Bar Council of India [(1999) 3 SCC 176] at para-20 has held that Rule imposed should have statutory peg and if there is no statutory peg on which to hang, then it will have no foothold and would be branded as being still born and any Rule going beyond its statutory functions must be held to be ultra vires and inoperative at law.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 25.<span style=\"white-space:pre\">	</span>The Act, 1976 does not provide for a charging Section to levy tax on telecommunication towers before amendment to the definition of building. The impugned Rules, 2009 were framed before amendment to the definition of building, and the amendment came into effect from 9.1.2015 bringing telecommunication towers under the definition `building\'. In the absence of source of power, the impugned Rules, 2009 expanding the definition of building to include telecommunication and other towers to bring within the taxable net, by subordinate legislation is held to be made in excess of the power conferred under Section 421 read with Section 108-A and Section 110(2) of the Act, 1976 and not within the bounds of the power delegated and the same is held to be invalid or unconstitutional.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Point No.(iii):</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26.<span style=\"white-space:pre\">	</span>The petitioner in W.P. No.13009/2009 is the Government of India Undertaking incorporated under the Companies Act, to carry on the telecommunication activities and for carrying out the said activities, the petitioner has installed the towers on private properties. Article 285 of the Constitution of India specifies that the property of the Union shall, save in so far as parliament may by law, otherwise be exempt from all taxes imposed by State or by any Authority within a State. To put it simply, the local Authority cannot levy tax on the immoveable property belonging to the Union of India. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>27.<span style=\"white-space:pre\">	</span>The petitioner in WP No.13009/2009 is exempted from payment of tax on the telecommunication towers erected on the property belonging to it or the Union of India.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>28.<span style=\"white-space:pre\">	</span>In view of the preceding analysis, it is held as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space:pre\">	</span>The un-amended Section 2(1-A) defining the term `building\' does not include telecommunication towers erected on the surface of the land or on the top of the building. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ii)<span style=\"white-space:pre\">	</span>The word `structure\' in para-c of third proviso to Section 108-A(2) cannot be extended to the term `building\' as defined under the unamended Section 2(1- A) of the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>iii)<span style=\"white-space:pre\">	</span>The impugned Rules, 2009 framed by the sub legislation in the absence of source of power is held to be made in excess of the power conferred under Section 421 read with Section 108-A and Section 110 of the Act, 1976. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>iv)<span style=\"white-space:pre\">	</span>The respondent - BBMP cannot levy tax on telecommunication towers erected by the Bharat Sanchar Nigam Limited (Government of India undertaking) on the immoveable property belonging to it, or the Union of India save as the parliament may by law provide. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>v)<span style=\"white-space:pre\">	</span>This order shall not come in the way of respondent - BBMP in levying tax on the telecommunication towers  under the amended provisions of Act, 1976 w.e.f 9.1.2015.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '85ddc479fbb35734e9ad998be98b27de.jpeg', '0e65ab899b6e5161a3944b55b6592cfb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-06', 1, '', '', '2023-03-06 13:32:09', '2023-03-07 08:32:11'),
(2765, 'l3peCNBsFw0K2wgmY6mq7Jhim', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Proceedings under PMLA initiated and seized properties forwarded to the Adjudicating Authority situated outside the State. Karnataka High Court rejects the challenge for want of territorial jurisdiction. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vihaan Direct Selling India Private Limited Vs The Assistant Director and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 2576 of 2023 decided on 28 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Natarajan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This writ petition is filed by the petitioner-company under Articles 226 and 227 of the Constitution of India seeking various reliefs of issuing writ of certiorarified mandamus for quashing the FIR in No.ECIR/MBZO- 1/15/2013 registered by the Directorate of Enforcement (ED) and also various directions, to quash the search and seizure of the account and to declare the search conducted under Section 17 of the Prevention of Money Laundering Act as illegal and unconstitutional and other various reliefs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>The case of the prosecution is that the respondent-ED registered a FIR in ECIR/MBZO-1/15/2013 based upon the FIR registered by the Oshiwara Police Station, Mumbai in Crime No.316/2013 for various IPC offences and the offence under Sections 120B and 420 of IPC are the schedule offences under the Prevention of Money Laundering Act, 2002 (for short \'PML Act\'). Hence, the ED registered a case against the petitioner-company in the above said FIR and during the investigation in the year 2013, the ED said to be conducted the search and freezed the bank account of the petitioner and sent the seized amount and other materials to the Adjudicating Authority under Section 17 of the PML Act. Hence, the petitioner is before this Court<span style=\"white-space:pre\">	</span>by challenging<span style=\"white-space:pre\">	</span>the proceedings on various grounds.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>Having heard the arguments and on perusal of the records, it is an admitted fact that the Oshiwara Police, Mumbai registered a FIR against the petitioner in Crime No.316/2013 for various IPC offences and Section 120B and 420 of IPC cases were schedule offences under the PML Act. Hence, the ED registered FIR in ECIR/MBZO- 1/15/2013 and it is also an admitted fact, the Hon\'ble Supreme Court has stayed the predicate offence in Writ Petition(s) (Criminal) No(s).31/2017 on  27.03.2017. The learned Senior counsel for the petitioner has relied upon the judgment of the Co-ordinate Bench of this Court in the case of Mantri Developers Private Limited and others vs.  ED  in  W.P.No.20713/2022  (GM-RES)  and in the case of MS.C.Uma Reddy and others vs. ED in W.P.No. 19337/2022 (GM-RES) dated 14.12.2022, has taken similar view that once the predicate offence is stayed, the proceedings in the Act registered by the ED cannot be proceeded. The Hon\'ble Supreme Court in the case of Vijay Madanlal Choudhary and others   vs. Union of India and others reported in 2022 SCC OnLine SC 929 has held that once the predicate offence is ended in discharge or acquittal, the proceedings initiated by the ED cannot be proceeded. Of course, there is no second thought in the decision rendered by the Hon\'ble Supreme Court and the Co-ordinate Bench of this Court</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>The judgment of the Madras High Court and the Delhi High Court were categorically held that when the FIR is registered in some other State, merely the petitioner-accused staying in Karnataka State and bank account is operating at Karnataka, this Court cannot take the cognizance and quash or stay the criminal proceedings in favour of the petitioner. I am in respectful agreement with the decision rendered by the Madras High Court as well as the Delhi High Court that this Court has no jurisdiction to entertain the petition and pass any order against the respondent-ED when the case was registered at Mumbai and properties were seized and forwarded to the Adjudicating Authority at Delhi. Therefore, the only option available to the petitioner is to approach the Mumbai Court having territorial jurisdiction and also an alternative and efficacy remedy available before the Adjudicating Authority at Delhi. Therefore, this Court cannot interfere and pass any order with the action taken by the respondent-ED in the case registered at Mumbai. Hence, the petition is devoid of merits and liable to be dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 12.<span style=\"white-space:pre\">	</span>Accordingly, the writ petition is dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3df35c6059cd96366a4cfe9ddb74b2ce.JPG', 'df46efa8e3484deaab41cbc3fee2fe6f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-07', 1, '', '', '2023-03-06 13:39:24', '2023-03-07 03:16:27'),
(2767, 'MZxdpezuCF4GnuVC55k5fQBih', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for declaration in respect of non-agricultural lands. Court fee payable is NOT on the actual and prevailing market value of the land. Criteria is 15 times the profit or 30 times the revenue. Karnataka High Court clarifies.', '<p><b>Anjanappa vs Krishnappa and others. </b></p><p><b>Writ Petition 57930 of 2015 decided on 24 August 2021.</b></p><p><b>Justice N.S. Sanjay Gowda </b></p><p><b>1.The plaintiff is the writ petitioner, who is challenging an order of the trial Court, by which, he has been directed to file  a fresh valuation slip and pay proper Court fee as per Section 35(1) of the Karnataka Court - Fees and Suits Valuation Act, 1958. </b></p><p><b>55. The common perception of market value of a land or the perception of market value of land for the purposes of the Stamp Act cannot be imported into the 1958 Act in respect of the 14 categories of suits mentioned in Section 7(2) of the 1958 Act. It is to be kept in mind that unlike the Stamp Act, the Court Fees Act is not a statute enacted for raising resources for the State, though both statutes are fiscal statutes.</b></p><p><b>56. To put it differently, the Stamp Act contemplates levying a duty whenever a transfer is effected which normally results in a financial consequence to one or both parties. The Court Fees Act, however, intends to levy a fee for a person who desires determination of a legal right in a Court. The perception of market value is thus designedly different and this marked difference in determination of market value in totally different ways under the two Acts will have to be accepted since the two statutes operate in different context. It is to be stated here that the perception and definition of a market value of land under the Stamp Act cannot be made applicable to the suits filed under the Court Fees Act by virtue of Section 7 of the 1958 Act. </b></p><p><b>57. The illustration for this would be lands which are used for agriculture. It cannot be in dispute that under Section 80 of the Karnataka Land Revenue Act (KLR, for short) all lands which are used for agricultural purposes or other purposes are liable for payment of land revenue, except those exempted from the provisions of the Act.</b></p><p><b>58. Section 83 of the KLR Act provides for the manner of assessment and commutation of non-agricultural assessment and prohibition of use of land for certain purposes. It declares that land revenue leviable on any land under the Act, shall be assessed with reference to use of the land for the purpose of agriculture.</b></p><p><b>60. If the revenue is permanently settled, the market value of the land would be twenty five times the land revenue payable. If the revenue is not permanently settled, the market value of the land would be twelve and half times the revenue payable.</b></p><p><b>62. If, however, no land revenue is payable for the land or is partially exempted from paying land revenue or is charged with any fixed payment, the deemed market value of the land would be either 15 times the net profits that the land fetched in the year preceding the plaint or 30 times the land revenue payable for similar extent of comparable lands in the neighborhood, whichever is lower.</b></p><p><b>63. The illustration for lands for which no land revenue payable would be lands which are permitted to be used for non-agricultural purposes under Section 95 of the KLR Act. This is because on permission for using lands for non- agricultural purposes being granted, Section 95(7) of the KLR Act mandates that no assessment shall be leviable on the said land, save for cases coming within the ambit of Section 83(2) of the KLR Act (i.e., lands which are permitted to be used for non-agricultural purposes, but which are used for agricultural purposes).</b></p><p><b>66. In other words, in respect of lands which are permitted to be used for non-agricultural purposes, for which no land revenue is payable (commonly termed as non-agricultural lands or converted lands), the market value of the lands for the purposes of Section 7 of the 1958 Act would be 15 times the profits the land fetched in the year preceding the filing of the plaint or 30 times the revenue of comparable lands in the neighborhood, whichever is lower. Thus, even in respect of lands which are permitted to be used for purposes other than agriculture, Court fee is not liable to be paid on the actual and prevailing market value of the land.</b></p><p><b>67. Section 7(2)(d) of the 1958 Act deals with lands with the following four other categories of lands:</b></p><p><b>a. Lands other than those described in Section 7(2)(a) to Section 7(2)(c) of the 1958 Act.</b></p><p><b>b. Lands which are either garden lands or</b></p><p><b>c. The land is a house site whether assessed to revenue or not;</b></p><p><b>d. The land is not within the foregoing description of lands in Section 7(2) of the 1958 Act.</b></p><p><b>80. The reasoning of the Trial Court that as per the sale deeds produced by the plaintiffs, the defendants were in possession and therefore joint possession of the plaintiffs cannot be believed, cannot be accepted simply because the defendants by virtue of the sale had merely stepped into the shoes of defendant Nos.1 to 3, the coparceners of the plaintiffs and that cannot amount to an admission by the plaintiffs that they were excluded from possession as envisaged under Section 35 (1) of the 1958 Act.</b></p>', '079060695a5f0adac7d6c7eb665558c2.jpeg', '525361043a26939e32c4542d9c30962e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-07', 1, '', '', '2023-03-07 11:43:03', '2024-06-24 16:17:11');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2783, 'wCDmxg1LZuiMcdizxtReRK5ss', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘Our Constitution is founded on human values’. Displaced slum dwellers who were granted Hakku Patraas and Possession Certificates are also entitled to Transferable Development Rights. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jayamma and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 20671 of 2022 decided on 9 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petitioners – the poor allotees of Hakku Patraas of small bits of land which they have given up on the assurance of being granted ‘Transferable Development Rights’ (hereafter TDR) are knocking at the doors of Writ Court for assailing the order dated 17.03.2022 issued by the Respondent - BDA (Annexure AD) whereby, the recommendation of the Respondent - BBMP for issuing the TDR Certificates to them has been negatived. Learned Sr. Advocate appearing for the petitioners insists that in view of the chequered history, this case should be taken up for hearing on a priority basis sine it involves the interest of poor persons.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>FACTS IN BRIEF:<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a)<span style=\"white-space:pre\">	</span>There were 180 persons including the Petitioners herein who had admittedly been in the long & continuous occupation of land in Sy.No.40 of Marenahalli village. The said land was acquired/utilized by the Government for the public purpose, i.e., formation of roads, drainage, etc. The BBMP Commissioner vide endorsement dated 03.07.1976 had directed their shifting to the lands in Sy.Nos.17 & 18 of the same village. In terms of the said endorsement, the Deputy Revenue Officer of BBMP vide letter dated 09.07.1976 (Annexure-B) asked these occupants to take possession of their sites at the rate of Rs.2 per square yard.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The endorsement provided for the rehabilitation of these dispossessed occupants. These lands were notified for acquisition vide Final Notification No.HMA-19-MNJ-70 dated 27.5.1970 published in Karnataka gazette dated 23.7.1970 under section 18(1)(a) of the City Improvement Act, 1945 for the formation of Sarakki layout. However, land in Sy.No.18 was dropped from acquisition vide Notification dated 07.06.1996 issued u/s 48(1) of the erstwhile Land Acquisition Act, 1894.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter for the following reasons: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>A.<span style=\"white-space:pre\">	</span>AS TO PETITIONERS NOT BEING OWNERS OF LAND IN QUESTION:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Petitioners along with other were in the occupation of land in Sy.No.40 of Marenahalli village and were asked to shift to Sy.Nos.17 & 18 of the same village. Accordingly, petitioners quit their lands in Sy.No.40 and obtained the Hakku Patraas by paying the offset price at the rate of Rs.2/- per square yard. Transfer of khata also came to be made in the Property Registers of the Local Body. All this happened way back in 1979-80, pursuant to the orders of the BBMP Commissioner, Revenue Officer, Block Development Officer and Deputy Commissioner of the district. This is authenticated by the proceedings of the BBMP which bear the signatures of Commissioner and Addl. Commissioner, in addition to lower rung officials.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>Letter No.HID329HLA70 dated 28.12.1979 issued by the Secretary, Department of Housing and Urban Development, Govt. of Karnataka, which authorized the Block Development Officers to issue the possession certificate/Hakku Patraas, makes it clear that the State Government too had a role to play in the unfolding of these events. This was followed by Memo dated 19.01.1980 in DRP:BHS:116/79-80 issued by the Deputy Commissioner of Bangalore District. It is a settled position of law that Hakku Patraas are title deeds, and therefore, there is recognition of the right/interest of the occupants by the statutory authorities. This assumes significance inasmuch as the TDR facility avails as a matter of right not only to the owners of the land but also to the persons having interest therein.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>B.<span style=\"white-space:pre\">	</span>AS TO PETITIONERS’ CLAIM FOR GRANT<span style=\"white-space:pre\">	</span>OF TRANSFERABLE DEVELOPMENT RIGHTS CERTIFICATE:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space:pre\">	</span>The BBMP after conducting the inquiry & verification records has drawn up the proceedings to the effect that the land in Sy.No.40 was retrieved from the occupation of the Petitioners for the purpose of putting it to public use such as formation & widening of road, underground drainage, etc and therefore, the Hakku Patraas and Possession Certificates were given to the occupants in respect of lands in Sy.Nos.17 & 18 of the same village namely Marenahalli. The Government vide letter dated 28.12.1979 had authorized the BDA to issue these Hakku Patraas. However, as the conspiracy of circumstances would have it, these allottees could not get any site on the ground in Sy.No.17, the land in Sy.No.18 having been denotified from acquisition. The proceedings of the BBMP specifically mention about the land in Sy.No.17 also being put to public use.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>Though fundamental right to property guaranteed under Article 19(1)(f) no longer avails, after 44th Amendment of 1978 hardly needs to be stated that the Right to Property continues to be constitutionally guaranteed under Article 300A. This guarantee is not confined to the right of ownership but extends to a much larger bundle of rights wherein interest in the property short of ownership too, finds place.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Similarly, in ENETERATINMENT NETWORK INDIA LIMITED VS. SUPER CASETTE INDUSTRIES LIMITED, the Apex Court has observed that an owner of a copyright has a right akin to the right to property constitutionally protected in terms of Article 300A and therefore, if the same is acquired, compensation needs to be paid. That being the expanse of right to property, it cannot be gainfully contended that the petitioners did not have any interest in the lands in Sy. No. 40 & 17, more particularly when in recognition of that right/interest they have been issued Hakku Patraas that too on payment of a certain offset price.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>C.<span style=\"white-space:pre\">	</span>AS TO INTERPRETATION OF SECTION 14B OF KARNATAKA TOWN AND COUNTRY PLANNING ACT, 1961 AND RULES PROMULGATED THEREUNDER: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>The third contention of learned Sr. Panel Counsel appearing for the BDA that the TDR scheme as envisaged under Section 14B of the 1961 Act, read with the Rules promulgated by the Government has to be construed strictly, and in cases which do not stricto sensu fit into the same, no relief can be granted to the litigants, is bit difficult to countenance.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">(v)<span style=\"white-space:pre\">	</span>In fact, the BBMP Proceedings Note 43 prepared by the Special Commissioner (Project) has been approved by the Commissioner on 23.01.2019 at Annexure-R which mentions about the subject land in Survey No.40 having been put to use for the widening of the main road after the occupants vacated the same on solicitation. The other property namely the land in Sy.No.40 also having been put to public use such as formation of the road, development of layout and the like does not avail for allotment in terms </font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">of Hakku Patraas & Possession Certificates.   In fact, the BDA by its letter dated 10.12.2018 had asked the BBMP to take the decision at its own level for the allotment of TDR certificates. That being the position, the respondent-BDA is not justified in negativing petitioners’ claim for TDR Certificates for want of acquisition notifications. It virtually amounts to saying petitioners are not entitled to recompense, despite the Hakku Patraas having been granted to them for off-set price.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>E.<span style=\"white-space: pre;\">	</span>AS TO AUTHENCITY OF PETITIONERS’ TITLE DOCUMENTS AND CONDUCT OF STATUTORY AUTHORITIES:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\"> (i)<span style=\"white-space: pre;\">	</span>The next contention of BDA Panel Counsel that there is a thick ring of doubt as to the genuineness of Hakku Patraas and Possession Certificates, is absolutely untenable, to say the least. There is not even a whisper as to which expert opinion was obtained to come to such a conclusion. The version of BDA that the difference in the quality of papers on which the Hakku Patraas have been drawn, raises the doubt as to their authenticity, is absolutely ridiculous. Some stray pleadings as to age of grantees not tallying or improbable, is hardly a leg to stand on. On the contrary, learned Sr. Advocate appearing for the petitioners is more than justified in pointing out the report of the C.I.D. dated 08.05.2012 did not inculpated any of the petitioners although it did qua others. What happened to criminal cases founded on the C.I.D. report although against others, remains to be a mystery wrapped in enigma. There is a wealth of contemporaneous material supporting the circumstances that resulted into issuance of Hakku Patraas/Possession Certificates in favour of the petitioners after extracting the price, howsoever small it was. Throughout the proceedings, till after the impugned order is made, the BBMP had maintained the specific stand that the Petitioners have been given the Hakku Patraas in respect of subject land which does not avail for the grant and therefore, TDR facility should be extended to them. However, after the judgment of the Coordinate Bench, all of a sudden it feigned ignorance of the authenticity of the Hakku Patraas. What prevented it from certifying the authenticity of Hakku Patraas is bit difficult to guess. Therefore, the subject reason assigned by the BDA for negativing the claim for TDR Certificates is unsustainable.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space: pre;\">	</span>What irks the conscience of the Court is, the recalcitrant attitude of two statutory authorities, namely: the BDA and the BBMP. They fail to note that all the petitioners treated as slum dwellers were accordingly granted Hakku Patraas & Possession Certificates in respect of land in Sy. No. 17 in recognition of their occupancy qua the one in Sy. No. 40. Offset price was also extracted from them. They were impressed that khata transfer would be effected and khata certificates would be issued in their names. They were assured of formation of the layout with the water & power supply. However, the authorities could not keep their assurance, the subject land having been utilized for some other public purpose such as formation & widening of main road, housing layout of KEB Employees, etc. In fact, that was the reason, the petitioners were promised off TDR facility as a viable alternative. The conduct of the respondents in now turning around and denying the TDR certificates is liable to be met with by the doctrine of promissory estoppel in vide MOTILAL PADAMPAT SUGAR MILLS VS. STATE OF UTTAR PRADESH. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>FRESH CONSIDERATION: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>As a norm, this Court would have quashed the impugned order and remitted the matter for consideration afresh at the hands of the authorities, because of arguable complexities of facts. However, the checkered history on which the case at hands is structured, the bureaucratic approach of the authorities in shuttling the poor petitioners between one another and the circumstances narrated hereinabove do not leave such an option with this court.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> (ii)<span style=\"white-space:pre\">	</span>All the Petitioners are slum-dwellers; they gave up their occupation of the land in Sy.No.40 decades ago on the assurance of the BBMP of providing them some shelter in the land in Sy.No.17; they were given Hakku Patraas & Possession Certificates way back in 1979 – 1980. They had paid offset price at the rate of Rs.2/- per square yard in those days.   All their efforts to secure a small piece of house site, ended in vain. Having realized that they would never get any such site, they opted for the TDR facilities in lieu of compensation.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> (iii)<span style=\"white-space:pre\">	</span>This is the 3rd round of litigation. In the contempt case, the Commissioner & Deputy Commissioner of BBMP were levied costs of Rs.25,000/-. The Petitioners had a rough deal at the hands of both the BDA & the BBMP, whose conduct does not generate confidence in the mind of the Court that they would ever grant relief to the deserving litigants, on their own. Repeated remand is not desirable in matters involving grievances of the poor & disadvantaged. Remitting the matter of the kind back to the portals of the authorities, by quoting some theories of law would not do real justice to the deserving litigants that hail from ‘have-not’ segment of the society. After all, it is the constitutional responsibility of Courts to individualize justice according to law.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>The Writ Petition is allowed; a Writ of Certiorari issues quashing the impugned order;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '386b102bc6f2682f12eafa0494390096.JPG', 'f1c9fb9570623f271a6f874da0bf7a9d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-13', 1, '', '', '2023-03-12 19:50:39', '2023-03-13 03:30:34'),
(2780, 'Zg4woxtghTqB6voItmxwXmajI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Agency of the Life Insurance Corporation cannot be terminated without strictly following the Regulations. Karnataka High Court restores the agency with consequential benefits. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sutram Suresh Vs The Senior Divisional Manager Life Insurance Corporation of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 29459 of 2019 decided on 2 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Brief facts that lead the petitioner to this Court in the subject petition, as borne out from the pleadings are, as follows:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> The petitioner enrolls himself to be an agent of the 1st respondent/Life Insurance Corporation of India (hereinafter referred to as ‘the Corporation’ for short) at its City Branch in the month of March 1999. It is the claim of the petitioner that he has received several encomiums during his tenure of being an agent and had been recognized with the grant of Corporation Club Membership which is the Corporation’s highest recognition to an agent and a million dollar roundtable life membership, both of which, according to the petitioner, are conferred upon only to agents who have served their best to the Corporation. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Things standing thus, a crime comes to be registered in Crime No.73 of 2018 against one M/s Vikram Investments for offences punishable under Sections 403, 406, 420 r/w 34 of the IPC. The allegation was with regard to a transaction of one A.R.Balaji and his Agarbathi Company who had invested and lost to an extent of `11.74 crores through accused No.2 Narasimha Murthy. The petitioner claims that he also had invested in M/s Vikram Investments and had nothing to do with the loss.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>On 14-09-2018 the petitioner receives a notice from an Inquiry Officer appointed, directing him to appear before the Divisional Office for a personal hearing to be held on 24-09-2018 indicating that it was an opportunity provided to the petitioner to be heard and submission of his views. The petitioner appears before the Inquiry Officer on 24-09-2018 and claims that he was asked to reply to a questionnaire. The petitioner submitted his reply and nothing came about. After about 6 months of the said personal hearing, a show cause notice dated 18-03-2019 comes to be issued by the Disciplinary Authority – Senior Divisional Manager seeking to show cause as to why action should not be taken against him under Regulations 15 and 16 of the Life Insurance Corporation of India (Agents) Regulations, 2017 (‘the Regulations’ for short) to terminate the petitioner as an agent of the Corporation.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>The afore-narrated facts, link in the chain of events and their dates are not in dispute. The petitioner gets enrolled as an agent of the Corporation on 18-03-1999. Once a person gets enrolled as an agent of the Corporation, his term as an agent in the Corporation is regulated and governed by the Regulations. The Regulations are framed in exercise of powers conferred under Section 49 of the Life Insurance Corporation Act, 1956 with the previous approval of the Union Government and are therefore statutes.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>Regulation 16 (supra) which deals with termination of agency mandates that if the agency of any agent is to be terminated for any of the reasons enumerated in sub-regulation (1), mandates that the agent shall be provided reasonable opportunity to show cause against such termination. The reasonable opportunity to show cause against such termination would in the considered view of this Court would not mean that he should not be made known of what are the allegations against him or communication of any order either, be it suspension, appointment of Enquiry Officer or an order framing the charge, all of which form part of a final order which terminates the agency of the petitioner. The Fifth schedule appended to Regulation 16 as quoted and noted (supra) mandates certain procedure to be followed prior to passage of an order that would terminate the agency of an agent. A perusal at the proceedings or the orders passed which are all noted hereinabove, would unmistakably indicate that the procedure as stipulated under the Fifth Schedule has been thrown to the winds and the order of termination is passed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 17.<span style=\"white-space:pre\">	</span>It is trite that if a particular procedure is mandated to be followed prior to passing any order of termination, such procedure cannot be given a go-bye by the Authorities, as procedure is the life blood of the Fifth Schedule. On this solitary ground of blatant violation or non-compliance with the procedure stipulated under the Fifth Schedule and Regulation 16, the orders impugned are rendered unsustainable.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>The petitioner then files an appeal. The Appellate Authority rejects the appeal during the pendency of the subject petition in terms of his order dated 02-05-2020. In the light of the orders of both the Disciplinary Authority and the Appellate Authority apart from the afore-narrated facts of the entire proceedings being contrary to the principles of natural justice, are bereft of reasons. Regulation 20 of the Regulations mandates that the Appellate Authority shall consider all the grounds urged in the appeal and then pass orders. The order passed by the Appellate Authority, in the considered view of this Court, is not in consonance with what is mandated under Regulation 20 or the order passed by the Disciplinary Authority under Regulation 16. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space: pre;\">	</span>In view of the preceding analysis, both the orders of the Disciplinary Authority and the Appellate Authority are rendered unsustainable and have to be quashed. The quashment of orders would not mean that the proceedings against the petitioner cannot be taken afresh at all. Since they are in violation of the principles of natural justice, it is from that stage the proceedings are required to be redone by the Disciplinary Authority i.e., from the stage of issuance of show cause notice. The petitioner would thus become entitled to consequential benefits i.e., renewal commission, as the orders impugned are no longer in existence. Except this, all other consequential benefits would depend upon the outcome of the proceedings now remitted.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Writ Petition is allowed and the Final Order dated 14- 05-2019 passed by the Disciplinary Authority and the Proceedings dated 02-05-2020 passed by the Appellate Authority stand quashed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fb0e25e6f4e41c793c005ec8df623df4.jpeg', '7057b5f0816063c0381091ab86ffcd7d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-13', 1, '', '', '2023-03-10 13:22:53', '2023-03-13 10:56:32'),
(2769, 'aDZVW79JQIjtSznmLBt2vtWCC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Central Goods and Services Tax Act. Pre-paid Payment Instruments of Gift Vouchers, Cash Back Vouchers and E-Vouchers do not fall under the category of goods and services and they are exempted from levy of tax.  Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Premier Sales Promotion Pvt Ltd Vs The Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 5569 of 2022 decided on 16 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P.S. Dinesh Kumar and Justice T.G. Shivashankare Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Briefly stated the facts of the case are,\r\nassessee is a registered Company1\r\n engaged in the\r\ntransactions of procuring Pre-paid Payment\r\nInstruments of Gift Vouchers, Cash Back Vouchers\r\nand E-Vouchers from the issuers and supplying\r\nthem to its clients for specified face value. Its\r\nclients issue such Vouchers to their employees in\r\nthe form of incentive or to other beneficiaries under\r\npromotional schemes for use as consideration for\r\npurchase of goods or services or both as specified\r\ntherein.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The Advance Ruling Authority, vide\r\nOrder dated July 30, 2021 has ruled that the\r\nsupply of vouchers is taxable as goods and the time\r\nof supply in all the three cases would be governed\r\nby Section 12(5) of the Central Goods and Services\r\nTax Act, 20175\r\n and the rate of GST as per Entry <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">No. 453 of Schedule 3 of Notification No. 1/2017-\r\nCentral Tax(Rate) dated June 28, 2017. The\r\nassessee challenged the said order before\r\nKarnataka Appellate Authority for Advance ruling.\r\nThe Appellate Authority has affirmed the order\r\npassed by the Advance Ruling Authority. Feeling\r\naggrieved, the assessee has presented this writ\r\npetition.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Undisputed facts of the case are,\r\nassessee is a Company engaged in the transaction\r\nof procuring PPIs of Gift Vouchers, Cash Back\r\nVouchers and E-Vouchers from the issuers and\r\nsupplying them to its clients for specified face\r\nvalue. The clients issue them to their employees in\r\nthe form of incentive or to other beneficiaries under\r\npromotional schemes for use as consideration for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">purchase of goods or services or both as specified\r\ntherein. Assessee receives orders for supply of evouchers wherein the assessee sources e-vouchers\r\nfor such clients as per the orders received and acts\r\nas an intermediary between the assessee and the\r\nsupplier of e-vouchers.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Thus, the question that falls for\r\nconsideration is, whether in the facts of this case,\r\nvouchers themselves are chargeable to tax at the\r\ntime of supply or chargeable when goods and\r\nservices are redeemed?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. The definition of ‘vouchers’ as defined\r\nunder the CGST Act, makes it clear that vouchers\r\nare mere instruments accepted as consideration for\r\nsupply of goods or services. They have no inherent\r\nvalue of their own. As vouchers are considered as\r\ninstruments, they would fall under the definition of\r\n‘money’, defined under CGST Act. The CGST Act\r\nexcludes ‘money’ from the definition of goods and\r\nservice and therefore not leviable to tax.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. It is not in dispute that the vouchers\r\ninvolved in the instant petition are semi-closed PPIs\r\nin which the goods or services to be redeemed are\r\nnot identified at the time of issuance. Vouchers are\r\ndistributed to its employees or the customers which\r\ncan be redeemed by them. These PPIs do not\r\npermit cash withdrawal, irrespective of whether\r\nthey are issued by banks or non-banking\r\nCompanies and they can be issued only with the\r\nprior approval of RBI.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. In substance the transaction between\r\nthe assessee and his clients is procurement of\r\nprinted forms and their delivery. The printed forms\r\nare like currency. The value printed on the form can\r\nbe transacted only at the time of redemption of the\r\nvoucher and not at the time of delivery of vouchers\r\nto assessee’s client. Therefore, the issuance of\r\nvouchers is similar to pre-deposit and not supply of\r\ngoods or services. Hence, vouchers are neither\r\ngoods nor services and therefore cannot be taxed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n (a) Writ petition is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5ad96106cda2fe327b0a73165fff73d1.jpeg', '0c17fce0c779fd6164d390fc50a40c54.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-09', 1, '', '', '2023-03-07 15:26:43', '2023-03-09 03:22:05'),
(2770, 'P2MxaZz15WlWu4IzMoyjPRtLJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for partition by woman coparcener is not maintainable if the ancestral property was sold before coming into force of the amended Section 6 of the Hindu Succession Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>D Prabhavathi and others Vs K.S. Manjula and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 548 of 2022 decided on 20 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>These revision petitions under Section 115 of CPC are filed challenging the orders dated 28.10.2022 passed on I.A.No.4 in OS No.207/2021 and OS No.208/021. The applications in IA No.4 was filed under Order 7 Rule 11(d) read with Section 151 of CPC for rejection of the plaints. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2.<span style=\"white-space: pre;\">	</span>In the aforesaid suits for partition and separate possession, the defendants No.2 and 3 filed the applications under Order 7 Rule 11(d) read with Section 151 of CPC, contending that, the subject property, which was an ancestral property, was conveyed by the father and the 1st defendant i.e. brother, through a registered sale deed dated 29.6.1998 in favour of the said defendants. Hence, the suit is not maintainable in view of proviso to Section 6 of the Hindu Succession Act. The Trial Court rejected the applications.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>The plaintiffs have filed the suits for partition and separate possession contending that, the suit property is the ancestral property, and the suit schedule property conveyed in favour of the defendants No.2 and 3 is not binding on their shares. Section 6 of the Hindu Successions Act, 1956 was amended by the Hindu Succession Act, 2005, wherein it specifies that, the daughter becomes a coparcener by birth. However, proviso to Section 6 of the Act specifies that, nothing shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property, which had taken place before the 20th day of December, 2004. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">7.<span style=\"white-space: pre;\">	</span>Admittedly, the alienation was made in the year 1998 before commencement of the amendment Act and the said alienation having been saved under proviso to Section 6 of the Act, the present suits for partition and separate possession filed by the plaintiffs are not maintainable. The Trial Court ignoring the provision of law has passed the impugned order, which is not sustainable in law</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space: pre;\">	</span>Revision petitions stand allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1fef72ff2f164c704c70cae08007177f.jpeg', '4ef03c8225f83ce72788ac4a375a3204.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-08', 1, '', '', '2023-03-07 16:06:33', '2023-03-08 07:01:05'),
(2771, 'jbYeopNntWxR4HGvEeA8QGsuN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Companies Act, 1956. Offence under Section 217 is not a continuing offence. No criminal prosecution can be launched beyond six months in view of Section 468(2)(a) and (b) of Cr.PC. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vasudevan Madhu and others Vs The Registrar of Companies.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 2369 of 2019 decided on 21 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>A private complaint under Section 200 of Cr.PC was filed by the respondent for contravention of Section 217(3) of the Companies Act, 1956 alleging that, the petitioners - accused Nos.1 to 4 as directors of the company have not furnished fullest information and explanation on auditors qualification in their report for the financial year 2010-11. The cognizance taken by the Special Court is impugned in this petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>The allegation is that the petitioners - accused Nos.1 to 4 have not furnished the fullest information as specified under Section 217(3) of the Companies Act, 1956. On 2.1.2013, the petitioners - accused Nos.1 to 4 replied to the show cause notice issued by the Registrar of Companies calling upon them to explain as to why the fullest information was not furnished as specified under Section 217(3) of the Companies Act, 1956. The respondent without passing an order on the reply submitted by the petitioners - accused Nos.1 to 4 filed the private complaint on 6.2.2019 i.e. after more than six years from the date of reply submitted by the petitioners - accused Nos.1 to 4.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 6.<span style=\"white-space:pre\">	</span>Clause 5 of Section 217 of the Companies Act, 1956 specifies that, if any person, being a director of a company, fails to take all reasonable steps to comply with the provisions of sub-sections (1) to (3),   he shall, in respect of each offence, be punishable with imprisonment for a term, which may extend to six months, or with fine which may extend to two thousand rupees, or with both. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>Section 468 of Cr.PC deals with bar to taking cognizance after lapse of the period of limitation. Section 468(1) of Cr.PC specifies that, no Court shall take cognizance of an offence of the category specified in sub-Section (2) after the expiry of the period of limitation.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 8.<span style=\"white-space:pre\">	</span>Section 468(2)(a) and (b) of Cr.PC specifies that, the period of limitation shall be, six months if the offence is punishable with fine only, and one year if the offence is punishable with imprisonment for a term not exceeding one year respectively. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>In the instant case, the cognizance was taken of the offence under Section 217(5) of the Companies Act after six years from the date of the alleged commission of the offence. There is no provision in Section 217 of the Companies Act, 1956 that the company or its directors shall also be liable to pay a fine for every day during which such default continues. Hence, the offence under Section 217 of the Companies Act, is not a continuing offence. Hence, the cognizance taken by the learned Magistrate after the expiry of one year from the date of commission of the offence is one without jurisdiction. Hence, the continuation of criminal proceedings will be an abuse of process of law.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space:pre\">	</span>Criminal petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '99ad4648b1d09cdbb254fe54990efbe8.jpeg', 'c6b8658942ed62fa6f0f364cfaa8708f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-09', 1, '', '', '2023-03-07 16:12:25', '2023-03-09 09:27:47');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2772, 'q2DhDeewY0xyYZrePT49VOcGk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Stamp Act. Where possession is not handed over under agreement of sale, levy of stamp duty cannot exceed Rs. 20,000/- Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Harish and others Vs Pushpakumari and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 6721 of 2022 decided on 13 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S Sunil Dutt Yadav.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The petitioner who is the plaintiff before the trial court has called in question the correctness of the order passed on 02.03.2022, whereby the trial court has calculated the duty and penalty by recording a finding that the deficit stamp duty is Rs.53,700/- and that the penalty is 10 times and accordingly, found that the plaintiff is required to pay duty and penalty of Rs.5,90,700/-.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>The learned counsel for the plaintiff submits that a reading of the document would make it clear that no possession is handed over under the agreement. If that were to be so, the calculation of duty and penalty in terms of Article 5 (e) (ii) of the Karnataka Stamp Act, 1957 would be upto a maximum of Rs.20,000/- but not less than Rs.500/-. Accordingly, it is submitted that the calculation of the trial court regarding duty and penalty is erroneous on the face of it.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>Clearly the calculation of duty and penalty is on the premise that duty and penalty is to be calculated at 0.1% of the market value. As possession has not been delivered under the agreement, the same is apparently erroneous and not in terms of Article 5 (e) (ii) of the Karnataka Stamp Act, 1957, which would be the applicable provision. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space:pre\">	</span>Article 5 (e) (ii) of the Karnataka Stamp Act, 1957 reads as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>\"5 (e) (ii) Ten paise for every one hundred rupees or part thereof on the market value equal to the amount of consideration subject to a maximum of rupees twenty thousand but not less than rupees Five hundred.\"<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>Accordingly, the impugned order is set aside. The matter is remitted to the trial court to calculate duty and penalty in terms of Article 5 (e) (ii) while taking note that under Article 5 (e) (ii) the maximum amount is Rs.20,000/- and would not be less than Rs.500/- and the duty must be fixed within the upper limit of Rs.20,000/-. This would be the applicable provision as possession is not handed over.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '44a320e95170c5c95e2e00c9d3ee0e57.JPG', 'b4d8cc06f0ae82ee8f5e72b120eca193.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-08', 1, '', '', '2023-03-07 16:26:33', '2023-03-08 03:20:00'),
(2773, 'LVI1lYnSRsFHI2bYdMX205rtr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land Acquisition Act 1894. Section 28A. Owners of even the small tracts of lands are entitled to uniform compensation. The object is to award uniform compensation for acquired lands covered under the same notification. Karnataka High Court. ', '<p><b>Shivakumar vs Special Land Acquisition Officer and another.</b></p><p><b>Miscellaneous First Appeal 24829 of 2010 decided on 15 June 20121.&nbsp;</b></p><p><b>Justice Hemanth Chandangoudar.&nbsp;</b></p><p><b>MFA No.24829/2010 is filed by the land loser challenging the judgment and award dated 6.4.2010 passed by the Additional Civil Judge (Sr.Dn.), Gadag sitting at Laxmeshwar in LAC No.135/2008.</b></p><p><b>MSA Nos.579/2012, 580/2012, 581/2012, and 598/2012 are filed by the land losers challenging the judgment and award dated 19.4.2012 passed by the District and Sessions Judge, Gadag in LAC (Appeal)/MA Nos.3/2011, 4/2011, 5/2011 and 6/2011 confirming the judgment and award dated 5.4.2010 passed by the Additional Civil Judge (Sr.Dn.) Gadag sitting at Laxmeshwar in LAC Nos.136/2008, 121/2008, 137/2008 and 133/2008.</b></p><p><b>13. Admittedly, the lands in question were acquired for the purpose of construction of the right canal and the entire extent of acquired lands is utilized for the purpose for which it was&nbsp; acquired. The SLAO in the award passed by him has categorically stated that the lands in question are abutting the Hebballi village and the market value of residential land in Hebballi village is fixed at Rs.18/- per sq. ft. by the Sub- Registrar. However, the SLAO refused to fix the market value of the lands in question by considering the Sub-Registrar value on the ground that the lands in question are not converted for non- agricultural purposes though they are adjacent to<span style=\"white-space: pre;\">	</span>the Hebballi village.</b></p><p><b>21. In the case of Land Acquisition Officer -vs- Ashok (supra) and in the case of Murari Agarwal (supra), this Court has held that the land acquired at the distance of six (6) furlong and one (1) kilometer from the exemplar land becomes relevant piece of evidence.</b></p><p><b>23. The photographs produced at Exs.P3 to P6 disclose that the lands in question are surrounded by developed lands. The respondents have not denied the genuineness of the photographs by leading rebuttal evidence and nothing is elicited in the cross-examination of PW1 to disbelieve the photographs produced at Exs.P3 to P6. However, the Reference Court has not considered the photographs at Exs.P3 to P6 stating that the negatives of Exs.P3 to&nbsp; P6 are not produced.<span style=\"white-space: pre;\">	</span>The respondents have not disputed the genuineness of the photographs.</b></p><p><b>26. In the case of Trishala Jain and another -vs- the State of Uttar Pradesh and another reported in 2011 (6) SCC 47, the Supreme Court has held that a small piece of land can be taken into consideration with some reasonable deduction for determining the value of the large tract of land and 10% was deducted towards development charges.</b></p><p><b>28. The Apex Court in the case of Atma Singh (dead) through L.Rs. -vs- State of Haryana and others reported in Appeal (Civil) Nos.3148-3157 of 2000 (DD 7.12.2007) has deducted 10% towards development cost in respect of land acquired for the purpose of construction of Co-operative Sugar Mill.</b></p><p><b>30.The Division Bench of this Court in MFA No.100191/2016 (DD 21.8.2018) while determining the market value of the subject land situated after the railway crossing and the exemplar parcel of residential plot which are situated before the railway crossing from the national highway has deducted 70% towards development from the exemplar value on the ground that the location of the subject land would undoubtedly impede the value of any development in the subject land vis-a- vis exemplar parcel of the land.</b></p><p><b>35. The other acquired lands are contiguous parcels of lands to land bearing RS No.220/1 having similar topography except that they are abutting the mud roads. The object of the repealed Land Acquisition Act which was a beneficial legislation was to protect the interest of land losers. The Section 28A of the Act specifies that if the court allows to the applicant any amount of compensation in excess of the compensation awarded by the Land Acquisition Officer, the persons interested in all other lands covered under the same notification and who have not made an application under Section 18 of the Act before the Reference Court by written application to the LAO within three months from the date of award of the court require that the amount of compensation payable to them may be redetermined on the basis of amount of compensation awarded by the court.&nbsp; Hence, it can be implied that the object of the act was to award uniform compensation for acquired lands covered under the same notification.</b></p><p><b>36. In the present case, all the subject lands are small tracts of lands and similar in nature except that land bearing R.S.No.220/1 is abutting the asphalted road and other lands are abutting the mud road. The owners of these lands which are small tracts of lands cannot be deprived of uniform compensation, when their lands are acquired for the same purpose covered under the same notification and their entire extent of acquired lands is utilized for the purpose of construction of the canal and there is no scope for further development. It would be discriminatory, if the land losers of small tracts of lands who are farmers are deprived of uniform compensation when their lands are compulsorily acquired and any amount of enhanced compensation with interest will be inadequate for them to purchase an alternative land since by passage of time, the market value of agricultural land would have increased manifold. The enhanced compensation with interest will be paid to the land losers after knocking the doors of the Courts of law and the enhanced compensation is paid to the land losers after several years though they are legally entitled to receive just and proper compensation immediately after passing of the award by the Land Acquisition Officer. Further it would be impractical to adopt belting method for determining the market value of these lands.&nbsp;</b></p><p><b>Accordingly, appeals are allowed in part.</b></p>', '61b37591f37132942fb7188aff931938.jpeg', '8f668430bf01226a83ea1dc9ba0dc9c8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-09', 1, '', '', '2023-03-09 11:46:36', '2023-03-09 06:58:21'),
(2775, 'L2Y7UMbm3xKGwOvAead7Om1DU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arms Act. When the gun seized from the accused was unloaded and no ammunition was found in possession of the accused, the gun cannot be said to have been used for hunting purposes. Karnataka High Court sets aside conviction.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>S. Kushal Vs State.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Revision Petition 835 of 2013 decided on 13 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S Vishwajith Shetty</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Brief facts of the case leading to filing of this revision petition as revealed from the records are, on 05.03.2010, PW.1-T.H.Chandrappa and PW.8-K.C.Nagesha were deputed by P.S.I, N.R.Pura for investigation in Crime.No.25/2010. For the purpose of investigation, the aforesaid persons had gone to Kudregundi, Nagaramakki and surrounding places and at about 11.45 a.m., when they were returning from the house of one Prakash (PW.4), who is resident of Bellur, they saw a person holding gun coming from opposite direction and on seeing the police, the said person started running. Immediately, PWs.1 and 8 chased him and caught hold of him and on enquiry, the said person disclosed his name as Kushal, resident of Sankadakone, Bellur Village and he also stated that gun belongs to him and he did not have licence to the said gun. Immediately, the gun was seized from the said person and mahazar was drawn in the presence of panchas and thereafterwards, PW.1 took the petitioner to the police station and registered a complaint. On the basis of his complaint, the case was registered in Crime.No.28/2010 against the petitioner for the offence punishable under Section 3 read with Section 25 of the Indian Arms Act. The police after investigation had filed charge sheet and petitioner was tried for the aforesaid offence in C.C.No.312/2010.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>In order to substantiate its case, the prosecution got examined nine witnesses as PWs.1 to 9 and marked six documents as Exs.P1 to P6. On behalf of the petitioner, he did not led any defence evidence nor got marked any documents on his behalf. The seized gun was marked as MO.1. The trial Court thereafterwards heard arguments on both sides and by its judgment of conviction dated 27.01.2012, convicted the petitioner and by order of sentence dated 31.03.2012, for the offence punishable under Section 3 read with Section 25(1B) of the Arms Act, sentenced him to undergo simple imprisonment for a period of one year and also to pay fine of Rs.5,000/- and in default to pay fine, petitioner was directed to undergo further simple imprisonment for a period of four months.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>Section 3 of the Arms Act, 1959 (hereinafter referred to as ‘the Act’ for brevity) provides that no person shall acquire or have any possession or carry any firearm or ammunition without a valid licence and Section 25(1B) of the Act provides punishment for contravention of Section 3. For the purpose of holding a person guilty for the aforesaid offences, the prosecution is required to prove the possession of the firearm with the accused and also its seizure from him in accordance with law. It is the case of the prosecution that on 05.03.2010, when PWs.1 and 8 were deputed for the purpose of investigating a case in Crime.No.25/2010, they accidentally saw the petitioner who was holding a gun and after seeing PWs.1 and 8, who were police constables, he started running and immediately they chased him and caught hold of him and thereafterwards, seized the single barrel muzzle loading gun from him, for which, he did not possess any valid licence. In order to establish the case of the prosecution against the petitioner, the prosecution in all has examined nine witnesses before the trial Court. PWs.1 and 8 are the police constables, who were deputed by the higher officers for the purpose of investigation of Crime.No.25/2010. PW.2 is an independent witness, examined by the prosecution and he turned hostile. PWs.3 and 4 are the brothers, who are two other witnesses examined by the prosecution to prove that PWs.1 and 8 have arrested the petitioner while he was holding the gun. PWs.5 and 6 are the panch witnesses for the seizure mahazar and both of them have turned hostile. PWs.7 and 9 are the police witnesses-ASI and PSI who have registered the case and also carried further investigation in the case.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>PWs.3 and 4 have stated before the Court that they have seen the petitioner in possession of the gun prior to PWs.1 and 8 apprehending him. According to them, after the police i.e., PWs.1 and 8 apprehended the petitioner, they had seen the petitioner with PWs.1 and 8 and he was being accosted by them. Therefore, for the purpose of proving the possession of seizure of the gun, the evidence of PWs.3 and 4 would not be much helpful to the prosecution and having regard to the admitted fact that they have some ill-will against the petitioner, it would not be safe to place reliance on their evidence in the absence of any other independent witnesses. According to them, in between their house and the house of the petitioner, there are 3-4 houses and the prosecution has not examined any one witness from the said house. PW.2 who is said to be the independent witness has turned hostile to the case of the prosecution. For the purpose of proving seizure of gun from the petitioner, the prosecution had examined the panch witnesses. PWs.5 and 6 who are the panch witnesses have turned hostile and nothing has been elicited from them. Therefore, the prosecution has utterly failed to prove the seizure of firearm from the petitioner. It is also not in dispute that the gun which was seized allegedly from the petitioner was not loaded and the petitioner was not carrying any ammunition with him for the purpose of loading the gun. If that is so, it would be very difficult to believe that the petitioner was allegedly carrying the gun with him for the purpose of hunting. Under such circumstances, I am of the considered view that the prosecution had utterly failed to prove the possession of the seized gun from the petitioner and the trial Court as well as the Appellate Court have completely failed to properly appreciate the evidence available on record.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>Under these circumstances, I am of the considered view that the trial Court as well as the Appellate Court have erred in finding the petitioner guilty for the offence punishable under Section 3 read with Section 25(1B) of the Act and having regard to the FSL analysis of the evidence on record, I am of the opinion that the said judgment of conviction and order of sentence, which have been challenged in this revision petition are not sustainable.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Criminal Revision Petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '69b0d7a6c57a0d89a3834e625c460504.jpeg', '2f38313e990821f1746872e1d279dccd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-11', 1, '', '', '2023-03-09 15:17:59', '2023-03-11 03:22:48'),
(2776, 'WQOdfRT8KGZGFXry16SwHc5TO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Protection of Women from Domestic Violence Act. Husband cannot be forced to keep both first and second wives in the same house. Karnataka High Court modifies trial court order. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sunil Kumar and others Vs Elizabeth.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Revision Petition 200071 of 2016 decided on 7 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V Srishananda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. As per Section 19(1)(f) of the Protection of Women\r\nfrom Domestic Violence Act, 2005 [in short ‘DV Act’], wherever\r\nthe Court feels convenient to order for monetary expenses in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">lieu of the shared house and also taking note of the relationship\r\nexisting among the parties, a suitable order can be passed in\r\nterms of money.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. In the impugned order, the learned Trial Magistrate\r\nafter exercising discretionary power granted a sum of\r\nRs.6,000/- as monthly maintenance and a room be given by the\r\nRevision Petitioner in the shared house.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Admittedly, the Revision Petitioner No.1 is the\r\nhusband of the respondent. However, the Revision Petitioner is\r\nliving with first wife. Taking note of these aspects of the matter\r\ndirecting the respondent to stay in the same house in a\r\nseparate room would not be feasible practically and it may give\r\nrise to further displeasure among the parties resulting in\r\ncivil/criminal litigation.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Accordingly, this Court exercising its power as is\r\ncontemplated under Section 19(1)(f) of the DV Act, a sum of\r\nRs.5,000/- be paid instead of the room be provided as the\r\nshared house. If a sum of Rs.5,000/- is being ordered, the\r\nrespondent can find out a suitable alternate premises more\r\nthan the room that would be provided in the shared house hold <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as ordered by the Trial Court, it would meet the ends of justice.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) The Criminal Revision Petition is allowed in part. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '09358a3e19c17b5bac334522f76f69ef.JPG', '5566811f27159b43ff6d81566eadaf7f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-10', 1, '', '', '2023-03-09 15:51:17', '2023-03-10 06:37:26'),
(2777, 'b9qwjQO1eMAubiqU39ZQFbOMk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for permanent injunction in respect of immovable property can be continued by legal representatives after death of original plaintiff since right to enjoy possession is a transferable right. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Chennaiah Doddachennaiah and others Vs Bylappa through LRS and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">R.S.A 743 of 2011 decided on 11 April 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice N.S. Sanjay Gowda.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">4. It was the case of the plaintiffs i.e., Chennaiah @ Doddachennaiah and Ningaiah that the suit property (an agricultural land measuring 3 acres 25 guntas bearing Sy.No.108 situate at Mathadahalli village, Dasanapura Hobli, Nelamangala Taluk) belonged&nbsp; to one Arasaiah&nbsp; who had gifted it to his sister Kalamma i.e., the mother of the 1st plaintiff, under a registered gift deed dated 15.09.1921. It was their case that during the lifetime of Kalamma, she had enjoyed possession of the suit property along with her husband Muddaiah and after the death of Kalamma, the&nbsp; revenue&nbsp; entries were changed in&nbsp; favour of the 1st plaintiff, Channaiah&nbsp; @ Doddachannaiah in 1935.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">5. It was stated that Kalamma had two sons, Channaiah @ Doddachannaiah (1st plaintiff) and Chikkachannaiah (father of the 2nd plaintiff).&nbsp; It&nbsp; was&nbsp; stated that on the death of Chikkachannaiah, the 2nd plaintiff had succeeded to his share and hence, he was also a co-owner of the suit property. It was contended that the record of rights&nbsp; and the Pahani right from the year 1968 up to 1989 stood in the name of the Chennaiah @ Doddachennaiah and Ningaiah, thus, establishing that they were in lawful possession. It was stated that they had paid the land revenue to the Government and the said documents proved that they were in lawful possession. It was stated that Bylappa was trying to interfere with their peaceful possession over the land&nbsp; bearing&nbsp; Sy.No.108 measuring 3 acres 25 guntas and hence, they were constrained to institute the suit.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">6. Bylappa, the sole original defendant, entered appearance and denied the averments of the plaint. He did not however dispute the relationship of the Chennaiah @ Doddachennaiah and Ningaiah. He, however, set forth the specific plea that one Hanumantaiah had in all three children, i.e., two sons, Arasappa and Obalaiah and one daughter Kalamma. He stated that he was the son of Arasappa and his father\'s brother i.e., the second son of Hanumanthaiah, viz., Obalaiah, had no issues and Arasappa was given to bad habits and he had driven away his wife, his son (Bylappa) and his brother Obalaiah from the house and had knocked away all the properties. It was stated that Arasappa started living with his sister Kalamma and also along with his concubine Nagamma.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">7. It was categorically stated that Obalaiah had purchased the suit property from one Revanna under a registered sale deed dated 01.09.1912 and on the death of Obalaiah, his brother Arasappa had gifted the property to his sister Kalamma.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">8. It was also stated that plaintiff No.1 had mortgaged the property in favour of Bylappa on 29.09.1936 under a registered mortgage deed and Bylappa was paying the taxes regularly every year and had documents to establish that the property was in his possession.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">9. It was stated that the father of plaintiff No.2, Chikkachannaiah had instituted proceedings under the Debt Relief Act and in those proceedings plaintiff No.1 had filed an affidavit before the Taluka Magistrate stating that Bylappa was the owner in possession of the suit property and that he had no subsisting interest in it and it was also stated therein that at the instigation of some persons, Chikkachannaiah, the father of plaintiff No.2, had initiated the proceedings under the Debt Relief Act. It was finally contended that there was no cause of action for the suit and the suit was liable to dismissed.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">10. The Trial Court on consideration of the evidence adduced before it, proceeded to conclude that Chennaiah @ Doddachennaiah and Ningaiah had failed to establish the title of Arasappa in order to validate the gift that he had made in favour of Kalamma. The Trial Court stated that though a registered gift deed had been executed by Arasappa in favour of Kalamma, the recitals of the gift deed itself had stated that the property was standing in the name of Obalaiah who had purchased the property under a sale deed dated 17.09.1906, and it had also been stated that the Khata was standing in the name of Arasappa and that Chennaiah @ Doddachennaiah and Ningaiah had failed to establish as to how Arasappa acquired title so as to gift the property to Kalamma and therefore, the gift could not be believed.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">11. It also took the view that in the gift it had not been stated as to how and where the donee had accepted the gift and as to when he had taken possession in accordance with the terms of the gift. It, thus, concluded that the essential requirements of the gift, as prescribed in the law, had not been established.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">24. Admittedly, Bylappa is the son of Arasappa. It was the case of Chennaiah @ Doddachennaiah and Ningaiah that Arasappa, the father of Bylappa had gifted the suit property to Kalamma in 1921 under a registered gift deed. In his written statement, Bylappa, at paragraph 9 of his written statement1 had clearly admitted the following facts:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">• Hanumanthaiah had two sons and one daughter, namely Arasappa, Obaliah and Kalamma.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">• Obalaiah, his father\'s brother, had purchased the suit property under a sale deed dated 01.09.1912 and that the said Obalaiah had no issues. After Obalaiah\'s death, Obalaiah\'s brother Arasappa i.e., Bylappa\'s father, had gifted the property to his sister Kalamma under a registered gift deed.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">56. A personal right is a right that can be enjoyed only by an individual on his own and it is a right that cannot survive his life. Such kinds of personal rights are relatable only to a limited category of suits, such as a suit for defamation, suit for damages for the personal injuries suffered, a suit for bankruptcy, a suit for dissolution of marriage, etc.,</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">58. The right to enjoy possession of an immovable property is not a right that can be enjoyed only by one person and it is not a right that cannot survive beyond the life of that person. The right to enjoy property is a transferable right and thus is not limited to any one person. On the death of a person, the right to enjoy possession of that property can and does survive to his legal representative.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">60. As could be seen from the said definition, a person who intermeddles with the estate of the deceased is also considered a legal representative. Thus, a person in whose favour the rights of a property devolve by operation of law or by way of a testament would be a legal representative since he acquires a right to intermeddle with the estate of the deceased. Thus, it is clear that in a suit relating to the grant of a perpetual injunction in respect of an immovable property, the right to sue is not personal to the plaintiff but survives to his legal representative and the suit for injunction would not therefore abate.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">62. It is thus clear from the prayer of Chennaiah @ Doddachennaiah and Ningaiah itself that they had not only sought for a decree of injunction against Bylappa but also against anyone claiming through Bylappa. Thus, on the death of Bylappa, since the right of Bylappa does survive to his legal representatives, the suit would not abate and would have to continue against anyone claiming under Bylappa as his legal representative.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">63. If it is to be held that in a suit for injunction, whenever a plaintiff or a defendant dies, the suit would abate, it would be virtually creating a never ending cycle of litigation, which obviously would result in an absurd situation where a party to suit is to be perennially litigating in courts.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">66. It is not in dispute that during the pendency of this appeal, Bylappa has alienated the suit property to a Society and the Society in turn claims to have obtained approvals to form a layout and thereafter allotted sites to its members. The Society has been impleaded as the 6th respondent and an application is also filed by the members of the said Society seeking to implead themselves as additional respondents. Documents are also sought to be produced to evidence the sale transaction and the approvals.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">67. In respect of these alienations, it is needless to state that they are hit by the doctrine of lis pendens and neither the Society nor its members can escape the consequences of a decree being suffered by their vendor. This position is made explicitly clear by the Hon\'ble Apex Court in&nbsp;more than one decision</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">68. In the light of the ratio laid down in this decision, the Society or its members would be bound by the decree passed against their vendor and they would consequently be also debarred from interfering with the possession of the 1st plaintiff and his legal heirs.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">69. In the result, the second substantial question of&nbsp; law is also held&nbsp; in favour of Chennaiah @&nbsp; Doddachennaiah&nbsp; and Ningaiah by holding that the relief of injunction would continue subsequent to the death of Bylappa, the original defendant and also the sale by his legal heirs in favour of the 6th defendant.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">70. As already discussed above, Ex.P.24, the mortgage deed, which is admitted by the original defendant, Bylappa, in his written statement, itself indicates that the suit property belonged to Chennaiah @ Doddachennaiah and Ningaiah and they were mortgaging the said property to secure a sum of Rs.125/- that they were borrowing from the original defendant. Both the Courts have committed a serious error in not even noticing this document Ex.P.24, though Chennaiah @ Doddachennaiah and Ningaiah produced it and the original defendant also pleaded about the mortgage.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">71. As already held above, the contents of this mortgage deed, establish that Bylappa was directly admitting the title of Chennaiah @ Doddachennaiah and Ningaiah and the complete disregard of this document by both the Courts have vitiated the judgments rendered by them.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">72. Thus, the 3rd question of law is also answered in favour of Chennaiah @ Doddachennaiah and Ningaiah/appellants.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">73. In view of all the three substantial questions of law being held in favour of Chennaiah @ Doddachennaiah and Ningaiah, the judgments of both the courts are required to be set aside and they are accordingly set aside.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">74. Further, since it has been established that Chennaiah @ Doddachennaiah and Ningaiah were in lawful possession of the suit property, the suit of Chennaiah Doddachennaiah is decreed as prayed for. It is also hereby made clear that this decree would be binding not only on the legal representatives of the deceased original defendant (i.e., respondents 1 to 5 in this appeal) but also on the 6th respondent-Society and its members.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">75. The second appeal is accordingly allowed and the suit of the Chennaiah @ Doddachennaiah, the 1st plaintiff is decreed as prayed for.</span></font></span></p>', '1911eed34984f5a6d43ceacfe1f55d29.JPG', '093d9b3d4ca7de05ddc2e304d1ccad2b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-09', 1, '', '', '2023-03-09 16:08:59', '2023-03-09 16:08:59'),
(2781, 'kLFoy0zn2rrRBDiAi65i51e7e', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Private complaint before the Magistrate in respect of cognizable offence without first approaching the jurisdictional police is not maintainable. Karnataka High Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>C S S Kashyap and others Vs R Shashikumar and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 2473 of 2017 decided on 21 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandagoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>A private complaint under Section 200 of Cr.PC was filed by the 1st respondent for the offences under Sections 406, 418, 420, 120B, 149 of IPC, alleging that, two complaints were filed by the 1st respondent against the members of the Society and in the proceedings, the petitioners conniving with each other entered into a compromise and filed a petition under Section 320(2) of Cr.PC for compounding of the offences by filing a false affidavit.   The learned Magistrate on the basis of the false affidavits compounded the offences. The learned Magistrate referred the complaint to the police for investigation under Section 156(3) of Cr.PC. The registration of FIR is impugned in this petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>The offences alleged against the petitioners are cognizable. The complainant was required to approach the jurisdictional police before lodging the private complaint to register the FIR, and upon refusal to register the FIR, the respondent No.1 was required to approach the higher officer for taking action against the petitioners - accused. In the instant case, the 1st respondent without complying with Section 154(1) and (3) of Cr.PC has filed the private complaint. In view of the ration enunciated by the Hon\'ble Supreme Court in the case of Priyanka Srivastava (supra), the complaint filed by the respondent No.1 without complying with the mandatory provision contained in Sections 154(1) and (3) of Cr.PC is not maintainable. Hence, the continuation of criminal proceedings will be an abuse of process of law.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> i)<span style=\"white-space:pre\">	</span>Criminal petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a29d9c05fc68f04ceef6deaa8b6d1d1f.jpeg', 'ec6951e8d6af801a1b2a029bb49476ae.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-13', 1, '', '', '2023-03-10 14:49:03', '2023-03-13 08:29:28');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2782, 'uDR1b4mRA4vZklQQt1YFB5Y0M', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Court cannot place accused exparte in cheque bounce cases and proceed with the trial. Court must secure presence of the accused if he does not appear despite service of summons. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">G.H. Abdul Kadri Vs Mohammed Iqbal.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Crl.RP. 1323 of 2019 decided on 24 May 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Sreenivas Harish Kumar.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">12. In the case on hand, it is not in dispute that the petitioner did not appear before the court.&nbsp; If the petitioner did not appear having received summons, the trial court ought to have issued warrant and then proclamation for securing his presence. The records do not disclose any such effort being made by the trial court to secure the presence of the accused. This is the blatant error that can be pointed out from the judgment of the trial court. It is trite to observe here that in the&nbsp; Code of Criminal Procedure, there is no&nbsp; provision&nbsp; for keeping an accused ex parte similar&nbsp; to&nbsp; one found in Code of Civil Procedure which provides for placing a defendant ex parte if there is due service&nbsp; of summons or notice on him. The reason may perhaps be due to requirement that trial is to&nbsp; be held in the presence of the accused. If for&nbsp; any reason the presence of the accused cannot be secured despite exhausting every mode of service, especially in relation to offences under special&nbsp;laws, including Negotiable Instruments Act and if evidence is to be recorded in the absence of the accused, law requires to be amended. The legislature must think of bringing suitable amendment to Code of Criminal&nbsp; Procedure&nbsp; or&nbsp; to&nbsp; the special law to enable the court to conduct the proceedings in the absence of the accused. The amendment, perhaps, may deter unscrupulous elements who would resort to avoiding service of summons or execution of warrant against them.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">13. The trial court has then dispensed with examination of the accused under section 313 of Cr.P. C. The accused did not appear and examining him under this section did not arise. But the trial court has given some reasons again based on the judgment in Indian Bank Association. The appellate court holds that the conclusion of trial court to dispense with recording&nbsp; of&nbsp; statement&nbsp; under section 311 Cr.P. C is also supported by&nbsp;another judgment of the Supreme&nbsp; Court&nbsp; in&nbsp; the case of Basavaraj R Patil and&nbsp; Others&nbsp; vs&nbsp; State&nbsp; of Karnataka and Others [(2000) 8 SCC&nbsp; 740] and of the coordinate Bench of this court in M/s Cheminova India Limited vs Jajee Pesticides and Others [ILR 2013 KAR 5395]. Therefore appellate court is also of&nbsp; the&nbsp; view&nbsp; that recording of statement of the accused under&nbsp; section&nbsp; 313 Cr.P. C can be dispensed with.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">14. Now if these decisions are read, Indian Bank Association does not discuss the aspect of examining the accused under section 313 Cr.P.C; and it has given certain directions for the&nbsp; trial&nbsp; of the cases under section 138 of Negotiable Instruments Act. In Basavaraj R Patil, the discussion pertains to alternative&nbsp; mode&nbsp; of obtaining statement of accused&nbsp; without&nbsp; securing his personal presence.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">15. The facts in Cheminova India Limited show that the trial court dispensed with the examination of the accused under section 313&nbsp;Cr.P. C, but that aspect did not&nbsp; actually emanate&nbsp; for discussion before the coordinate bench. The scope of section 145 of Negotiable Instruments Act was the point of discussion and no where it is held that examination of the accused under section 313 Cr.P. C can be dispensed with. Thus it is clear that both the courts below have misapplied&nbsp; the&nbsp; principles laid down in the&nbsp; above&nbsp; referred decisions.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">16. Conclusion therefore is that trial&nbsp; cannot be held in the absence of an&nbsp; accused&nbsp; unless personal appearance is dispensed with for valid reasons and there cannot be dispensation of examination of an&nbsp; accused&nbsp; under&nbsp; section&nbsp; 313 Cr.P. C if incriminating evidence appears in the evidence of the witness. Speedy&nbsp; trial&nbsp; does&nbsp; not take the meaning of jumping the stages in criminal trial. In view of this discussion, I&nbsp; hold&nbsp; that&nbsp; all these revision petitions deserve to be allowed for&nbsp;the purpose of disposal of&nbsp; all the cases afresh by&nbsp; the trial court.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">ORDER</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">The revision petitions are allowed</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(i)<span style=\"white-space: pre;\">	</span>Judgment dated 31.8.2019 in Criminal Appeals 5 to 10/2019 on the file of Principal District and Sessions Judge, Udupi, is set aside, consequently the appeals are allowed, the judgments of III Addl. Judicial Magistrate, First Class, Udupi, in C.C.Nos. 2013/ 2018 , 2015/2018, 2016/ 2018 , 2017, 2018, 2018/ 2018 and 2019/2018 are set aside, and all the cases are remanded to the court of III Addl. Judicial Magistrate, First Class, Udupi, for disposal afresh.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(ii)<span style=\"white-space: pre;\">	</span>The parties are directed to appear before the Magistrate Court on 27.6.2022, and that the accused subject to provision as&nbsp; to&nbsp; bail after his appearance before the&nbsp;Magistrate, is given liberty&nbsp; to apply under section 145 of Negotiable Instruments Act for cross-examining the complainant and his witnesses. He&nbsp; is&nbsp; also given liberty to adduce defence evidence. The respondent – complainant can also adduce further evidence if necessary.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(iii)<span style=\"white-space: pre;\">	</span>The accused shall pay cost of Rs.2,000/- to the complainant in each case.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(iv)<span style=\"white-space: pre;\">	</span>The trial court shall expedite the trial.</span></font></span></p>', '4425593a382a440bb8460fea0ff284e7.JPG', '90dbe48de7b4588afc12ba1b4736a149.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-10', 1, '', '', '2023-03-10 15:11:46', '2023-03-10 12:13:13'),
(2784, 'sHdfFswQkTDFMn43BdDDxxukd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Acquiring body denotifying land from the acquisition proceedings; retaining the possession and allotting the land for industrial purposes. Fresh acquisition proceedings to rectify the mistake cannot be said to be illegal. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>B C Lokesh Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 968 of 2023 decided on 9 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petitioner is knocking at the doors of writ Court for assailing the acquisition of his land admeasuring 2 Acres- 0 Guntas in Sy.No.176 of Bagaluru Village, Yelahanka Taluk, in Bengaluru Urban District, vide Final Notification dated 10.10.2022 issued by the 1st Respondent – State under section 28(4) of the Karnataka Industrial Areas Development Act, 1966 at Annexure-A. He has also sought for the quashment of Notification dated 10.08.2022 issued u/s 3(1) of the 1966 Act at Annexure-B whereby the area in which the subject land is subsumed has been declared to be an industrial area.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>THE FOUNDATIONAL FACTS OF THE CASE:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> i)<span style=\"white-space:pre\">	</span>Petition property is a ‘granted land’ and not the one bought by the grantee by his toil. The grantee was subject to certain terms & conditions that are reflected in a copy of the document at Annexure-A. After the death of original grantee, his widow Smt.Chikkamuniyamma succeeded to the estate, and after her demise, Petitioner claims succession thereto.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> ii)<span style=\"white-space:pre\">	</span>Earlier, the petition land along with many other was proposed for acquisition vide Preliminary Notification dated 16.12.2006 followed by the Final Notification dated 09.04.2008, by referring to Sy.No.177 when it was Sy.No.176. Joint measurement was undertaken followed by taking over of entire area comprised in the Notifications including the said land. There was some official correspondence between KIADB and the revenue officials about the discrepancy as to the survey number in which the petition land is situate. However, the lands were dropped from acquisition vide Notification dated 04.12.2010. Way back in 2013, Smt.Chikkamuniyamma being the khatadar of the land, in response to Tahasildar’s notice, has requested the KIADB for the payment of compensation since possession of the land was already taken over. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>iii)<span style=\"white-space:pre\">	</span>The acquisition under the earlier Notifications of huge extent of about 200 Acres of land was for the purpose of a hardware park project. Petition land is a small bit compared to the rest and the same is subsumed in the subject industrial area. Because of the discrepancy, as already mentioned above, it was denotified and therefore, its designation as part of industrial area u/s 3 and its acquisition u/s 28 have been made afresh vide impugned Notifications. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>iv)<span style=\"white-space:pre\">	</span>Petitioner seeks to falter the same on the grounds that: designation of the subject land as an industrial area and its fresh acquisition are contrary to law; the Notifications have been issued in the name of deceased mother; the entire exercise was bona fide and smacks of legal malice; the act of the respondents is discriminatory of the petitioner; the acquisition is ‘not for the public purpose but to feed the requirement of a private software company…’ i.e., M/s. Nethra Software Technologies Ltd which gained allotment even before acquisition process. Counsel for the petitioner has passionately argued the matter placing reliance upon certain Rulings. The KIADB having filed its Statement of Objections and Addl. Statement of Objections, resists the Writ Petition; its Senior Panel Counsel made submissions with equal passion in justification of the impugned Notifications.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>Having heard the learned counsel for the parties and having perused the Petition papers, this Court declines indulgence in the matter for the following reasons: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">a)<span style=\"white-space:pre\">	</span>Petition property as already mentioned above is only a ‘granted land’ and not the one bought by the grantee by his toil. Although a government grant feeds the title, law recognizes a certain difference between a ‘granted land’ and a ‘private property’. The difference in degrees of ownership that lies between a ‘granted land’ and a private land assumes significance while adjudging the acquisition of ‘granted land’ by the government i.e., the grantor for a public purpose on payment of compensation. It cannot be disputed that the grantor has retained discretion to rescind the grant on the proven violation of the terms of grant. In other words, the level of resistance to acquisition of a ‘granted land’ cannot be as high as in the case of acquisition of a ‘private land’ there being no difference when it comes to payment of compensation. This critical difference needs to be kept in view when grantee of the land lays a challenge to its acquisition heavily banking upon the constitutional guarantee to the private property u/a 300A, more particularly, when the very grant is admittedly subject to certain conditions that diminish the measure of ownership. An argument to the contrary cannot be sustained without turning a Nelson’s Eye to the apparent differences relevant for the classification of persons holding ‘absolute ownership’ and ‘restricted ownership’ over the properties. It hardly needs to be stated that equality is violated not only when equals are treated unequally but unequals are meted out unequal treatment vide E.P.ROYAPPA VS. STATE OF TAMIL NADU, AIR 1974 SC 555.<br></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>b)<span style=\"white-space: pre;\">	</span>The acquisition in question is for the accomplishment of a public purpose of enormous importance for the industrial growth that would eventually generate employment and wealth, namely the Hardware Park Project. It comprises of a huge extent of land within which petitioner’s land of frugal extent is subsumed, not at the periphery but somewhere a bit right or a bit left of the center. Should the acquisition be voided, the petition land would be a small island with no facility for ingress & egress, as rightly contended by learned Senior Panel Counsel of the KIADB. How and what for such a land can be made use of by the owner when acquisition of rest of the lands around has already been accomplished, remains a riddle wrapped in enigma. The explanation that the petitioner would continue to be owner of the said land regardless of diminished user potential, is too farfetched an argument that belittles the pragmatics of public interest of the community at large qua the private interest of an individual, more particularly when the gamut of power of eminent domain that was otherwise restricted by the then availing fundamental right to property u/a 19(1)(f) has been since relegated to as a diminished constitutional guarantee u/a 300A vide 44th Amendment, as has been discussed in M/S K.T. PLANTATION PVT. LTD. V. STATE OF KARNATAKA (2011) 9 SCC 1.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>d)<span style=\"white-space:pre\">	</span>Where huge extent of lands are acquired for public purpose, namely the project of the kind, at times, small pockets of lands pose some difficulty, may be because of inadvertence or otherwise of the officials concerned. Some infirmities have crept into the acquisition process. Such instances galore in the Law Reports and standard books on land acquisition. Voiding acquisition of such a small pocket of lands will have undesirable consequences on the project as a whole for which other lands in a huge extent have been notified; sustaining such an acquisition, notwithstanding the arguable lacunae therein would protect the public interest and some damages can be awarded in addition to compensation to set right the injustice so that a fair balancing of competing interests is achieved. That is how a Writ Court has to individualize justice keeping in view a host of factors that enter the fray of dispute. Such things cannot be done with arithmetical accuracy, hardly needs to be stated.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space:pre\">	</span>The vehement argument of petitioner’s counsel that the impugned notifications have been issued in the name of dead person namely his mother Smt.Chikkamuniyamma and as a consequence, petitioner had no opportunity of filing the objections to the proposal for acquisition after the Preliminary Notification u/s 28(1) was issued, again will not come to his aid, he having admittedly filed ones. Ordinarily, the acquisition is notified with the name of khatadar; the entries in the revenue records or property records enjoy presumptive value. Had the petitioner got his name mutated after getting deleted his mother’s or had he placed on record some material to vouch any such claim for mutation, there could have been some scope for such an argument. Even otherwise, the text of section 28 of the 1966 Act being a bit in variance with that of the provisions of section 4(1) of the erstwhile Land Acquisition Act, 1894 and of section 17 of the Bangalore Development Authority Act, 1976, such a contention cannot be countenanced. In the former, the paper work for acquisition is ‘khatadar specific’ unlike in cases of acquisition notified under the latter, wherein some reasonable enquiry is required to be done for ascertaining the ‘persons interested in the land’. An argument to the contrary blurs the boundary lines of schemes of acquisition envisaged under these statutes and thus, runs counter to the scope of section 28 of the 1966 Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>j)<span style=\"white-space:pre\">	</span>The last contention of the petitioner that the 2013 representation of his mother seeking compensation for the land in question cannot be construed as the waiver of her right to litigate over acquisition since she was an illiterate lady, is difficult to agree with. Firstly, petitioner has suppressed the said representation from the court and from the KIADB as well inasmuch as in his original pleadings, he has not made even a whisper of that. In all fairness, he ought to have mentioned about the said representation and then structured the plea of the kind. It is only after the KIADB filed its objections, such a plea of anti-waiver is put forth. A perusal of the original records that were shown to the court shows that Smt.Chikkamuniyamma had made the subject representation which obviously is not in dispute. Secondly, the petitioner in rejoinder dated 17.2.2023 at paragraph No.4 have specifically admitted ‘…the KIADB had disbursed compensation in respect of other acquired land bearing Sy.No.176/38 to the petitioner’s mother based on her legal entitlements.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"> l)</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem; white-space: pre;\">	</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">There is yet another reason for not granting interference in the matter: petitioner had filed the objections dated 5.9.2022 to the Preliminary Notification issued u/s 28(1) for acquisition; the same came to be overruled after consideration vide order dated 20.9.2022; the Final Notification has been issued u/s 28(4) of the 1966 Act; the SLAO of the KIADB has passed the general award dated 12.1.2023 determining the compensation amount at the rate of Rs.2.75 crore per acre. Award notice has also been issued on 17.1.2023. A huge sum of Rs.3,22,80,387/- has been deposited in L.A.C.No.3/2023 before the Senior Civil Judge Court at Devanahalli vide Union Bank cheque dated 25.1.2023, presumably because of pendency of W.P.No.40249/2014 in which there is an interim stay against disbursal of compensation. It is open to the Petitioner or any other persons interested in the land either to accept the compensation as offered or to seek reference for enhancement, by establishing their credentials. It is also open to the petitioner to file a suit for damages for working out the secondary remedies, if any, in accordance with law. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>In the above circumstances, this Writ Petition being devoid of merits, is liable to be dismissed and accordingly, it is, costs having been made easy.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b> It is made clear that nothing herein above contained shall come in the way of petitioner seeking damages for the arguable lapses attributable to the respondents herein by framing appropriate proceedings, in accordance with law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'aa7b9aefc0e44aa45a1c451ceed1d4a7.JPG', 'b0ce5847168a27fdfdd2ea7598c399f8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-14', 1, '', '', '2023-03-12 19:59:26', '2023-03-14 03:26:58'),
(2785, 'TN8lxezdNubB093EGK91jgh7v', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Consensual and longtime sexual relationship cannot be given the colour of rape simply because the promise of marriage could not be fulfilled by the accused. Karnataka High Court.   ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mallikarjun Desai Goudar Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 4761 of 2022 decided on 28 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is before this Court calling in question proceedings in S.C.No.664 of 2022 arising out of Crime No.54 of 2021 registered for offences punishable under Sections 376, 376(2)(n), 354, 323, 406, 504, 506 r/w 34 of the IPC pending before the LIII Additional City Civil and Sessions Judge, Bengaluru. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Shorn of unnecessary details, facts in brief, are as follows:- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The 2nd respondent is the complainant and the petitioner is the accused. The two became acquaintances. The acquaintance turned into relationship and the relationship into sexual relationship. This is said to have gone on for a long period. The allegation is that on the pretext of marriage, the petitioner had sexual intercourse with the 2nd respondent/complainant and has later breached the promise of marriage and, therefore, the contention is that consent of the complainant was obtained by inducement on false promise of marriage. On the said alegation, the 2nd respondent registers a crime in Crime No.54 of 2021 for the afore-quoted offences. The Police, after investigation, file a charge sheet in the matter and the case is now registered as S.C.No.664 of 2022 and pending before the learned Sessions Judge. Filing of charge sheet by the Police after investigation thereto is what drives the petitioner to this Court in the subject petition.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">8.<span style=\"white-space: pre;\">	</span>The afore-narrated facts are not in dispute. The complainant was the friend of another, who was the friend of the petitioner, which was the link for the complainant befriending the petitioner. The relationship between the petitioner and the 2nd respondent grew with friendship, metamorphosed into relationship and paved way to have a sexual relationship. It went on for several years. This is a matter of record, as the complainant herself in the complaint registered, so narrates the entire history of relationship between the petitioner and the complainant. Since the entire issue now springs from registration of the complaint, it becomes germane to notice the complaint itself.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The subject of the complaint is that the petitioner on several occasions has had forceful sexual intercourse with the complainant and has had financial transactions luring the complainant on the pretext of marriage. The 2nd paragraph of the complaint indicates that the petitioner and the complainant were in love for 5 years and they had known each other for 12 years. The further narration is that on several occasions she has had sex with the petitioner on the promise of marriage by the petitioner. But the promise had remained as promise only. She also narrates certain financial transaction between the two. The crux of the complaint appears to be several financial transactions between the two. Statement of the complainant was recorded under Section 164 of the Cr.P.C. before the learned Magistrate.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>The consent in the case at hand is not once, twice or thrice; not for days or months; but for several years, five years precisely, as is narrated in the complaint as the two were in love. Therefore, for five long years, it cannot be said that the consent of a woman has been taken for having such instances, all along against her will. It is the length of the relationship and the acts in such period of such relationship between the two that takes away the rigor of ingredients of Section 375 of the IPC, for it to become an offence under Section 376 of the IPC.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>On the aforesaid facts, it becomes germane to notice the judgments on the issue. The Apex Court has delineated the inter- play between the offence of rape and a consensual sexual relationship, both on the false promise of marriage and promise of marriage. Therefore, a deeper delving into the issue becomes unnecessary, suffice to quote the judgments of the Apex Court. The Apex Court in the case of PRAMOD SURYABHAN PAWAR v. STATE OF MAHARASHTRA2 has drawn distinction between rape and consensual sexual relationships.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>Insofar as the judgments relied on by the learned counsel for the 2nd respondent seeking to distinguish the afore-quoted judgments are concerned, they would all tumble down, as they are heavily goaded against the submissions made by the learned counsel for the 2nd respondent. Insofar as the judgments in the cases of YEDLA SRINIVASA RAO v. STATE OF A.P.; STATE OF UTTAR PRADESH v. NAUSHAD and ANURAG SONI v. STATE OF CHHATTISGARH are concerned they were all rendered on the facts obtaining in the cases therein and a distinction being made that it was a false promise of marriage and not mere promise of marriage or its breach. Therefore, those judgments are distinguishable without much ado, on the facts obtaining in the cases therein and would not become applicable to the facts obtaining in the case at hand. In the considered view of this Court, the issue stands covered, on all its fours, to the judgments of the Apex Court and the High Court of Kerala, as quoted hereinabove, and not as noted hereinabove, as relied on by the learned counsel for the 2nd respondent. This Court though, would appreciate the sincere effort of the learned counsel for the 2nd respondent to distinguish every judgment by putting up vehement opposition, but in the light of facts being so glaring and the law in favour of the petitioner, permitting further proceedings or continuance of trial would undoubtedly lead to miscarriage of justice qua the offence punishable under Section 376 of the IPC. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space: pre;\">	</span>There are other offences alleged against the petitioner. They are offences punishable under Sections 354, 323, 406, 504, 506 of the IPC. Section 354 would get subsumed to the reasons rendered for obliterating the offence under Section 376 of the IPC. Therefore, invocation of Section 354 also requires to be obliterated. Section 406 which deals with criminal breach of trust has its ingredients in Section 405. The ingredients of Section 405 mandate that there should be a property entrusted from the hands of the victim to the accused and the accused should have used the said property with dishonest intention towards his or her own purpose. There is neither an allegation of the kind nor any ingredient for the said offence. Financial transactions have taken place between the two but that by itself would not become an ingredient of criminal breach of trust. Therefore, the said offence also is to be obliterated. What remains is offences punishable under Sections 323, 504 and 506 of the IPC. The complaint, statement under Section 164 CrPC and summary of the charge sheet clearly indicate the offences punishable under Sections 323, and 506 of the IPC. Therefore, these offences are required to be sustained and offence under Section 504 of the IPC as well requires to be quashed.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>The Criminal Petition is allowed in part.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f2df1d7b0b6cb59e62bef95fbdf8c76f.jpeg', '1aeda5dc739f34e4c40421f7fd80372a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-14', 1, '', '', '2023-03-12 20:11:12', '2023-03-14 12:22:12'),
(2786, 'lJHvXbfDT1sGttJhiMg2hUGjQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Land Revenue Act. Pendency of the Master Plan under the Karnataka Town and Country Planning Act for Government approval can NOT be a ground for rejecting conversion of land from agricultural to non-agricultural. Karnataka High Court.', '<p><b>Muniyamma vs The State of Karnataka and others&nbsp;</b></p><p><b>Writ Petition 20760 of 2021 decided on 1 December 2021</b></p><p><b>Justice R.Nataraj</b></p><p><b>5. Having regard to the fact that the Master plan is not yet introduced in Malur Planning area, unless the same is reserved for the purpose&nbsp;as set out in the Karnataka Town and Country Planning Act, 1961, the respondents cannot deny the benefit of conversion of land for non-agricultural purposes. The rejection of the request of the petitioner on the ground that the Master Plan for the Malur Town is yet to be approved by the State Government is unacceptable as such ground is not contemplated under Section 95(3) of the Karnataka Land Revenue Act, 1964. For the purpose of conversion of land, what needs to be considered is whether&nbsp;it is reserved for any purpose. If it is not reserved for any particular purpose, the respondent&nbsp;2 is duty bound in law to convert the land for the purpose sought for.&nbsp;</b></p>', '0f859ac576c08b88f25ab1c0f45c71df.jpeg', '5546f935f2e937b9025fb6e70f03619a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-13', 1, '', '', '2023-03-13 11:40:09', '2023-03-13 06:32:07');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2788, 'doCHE8UpmBfrnj8L83Bv15LK6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When Juvenile Justice Board decides to try the juvenile as an adult, the accused can, apart from appealing against the order, seek bail under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Siddalinga S.N Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.R.P. 1372 of 2022 decided on 27 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space: pre;\">	</span>This criminal revision petition under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, \'the Act\') has been preferred by the child in conflict with law/petitioner challenging the judgment and order dated 24.082021 passed by the Court of Principal Sessions Judge, Mandya, in Crl.A.No.360/2021 and the order dated 10.12.2020 passed by the Juvenile Justice Board, Mandya (for short, \'the Board\'), in FIR No.5/2020 (JC.No.26/2020).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>Facts leading to filing of this petition as revealed from the records that may be necessary for the disposal of this petition are, on the basis of the complaint lodged by CW-1 - Ningamma, a criminal case was registered against the petitioner and others in Crime No.110/2020 for the offences punishable under Sections 341, 302, 120B, 109 read with 34 IPC. It is averred in the complaint that her son Raghu was murdered by the petitioner at the instance of other accused persons and during the course of investigation, the petitioner was arrested and he is in custody.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>The petitioner, after his arrest, had filed an application under Section 12 of the Act with a prayer to release him on bail. After receipt of the said application, the Board had proceeded to pass an order under Section 15 of the Act which provides for a preliminary assessment of the juvenile, wherein a juvenile aged between 16 to 18 years is involved in committing a heinous crime, for the purpose of testing whether the juvenile can be deemed to be considered as an adult and can be tried before a criminal court under Section 6 of Cr.PC in accordance with the ordinary procedure of law and on passing of an order under Section 15 of the Act regarding the preliminary assessment of the juvenile and if it finds that there is a need for trial of the said juvenile as an adult, then the Board may order transfer of trial of the case to the Children\'s Court having jurisdiction to try such offence.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>Section 15 of the Act provides the mechanism for determination of mental and physical capacity of the juvenile aged between 16 to 18 years regarding the commission of offences and the consequences thereof, in order to presume such juvenile as an adult by employing legal fiction. The juvenile, therefore, need not be an adult as on the date of committing the crime, but if his age is between 16 to 18 years, depending upon the preliminary assessment as provided under Section 15 of the Act, in law such juvenile can be considered as an adult. Such an enquiry provided under Section 15 of the Act has immense ramification on such a juvenile aged between 16 to 18 years, and therefore, it is of paramount importance that such an enquiry as provided under Section 15 of the Act is required to be conducted strictly following the provisions of law in its letter and spirit. The purpose of such preliminary assessment test is to ascertain as to whether the juvenile is required to be tried as adult by the Children\'s Court or by the Board.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>From the reading of the said provision of law, it is very clear that whenever an appeal is filed challenging the order passed under Section 15 of the Act, the Sessions Court/Children\'s Court deciding the appeal shall take the assistance of experienced psychologists and medical specialists other than those whose assistance has been already taken by the Board in passing the order under Section 15 of the Act. In the present case, no such exercise has been undertaken by the learned Sessions Judge, and on the other hand, the learned Sessions Judge has dealt with the appeal as if it is an appeal arising out of the order passed under Section 12 of the Act rejecting the bail application filed by the juvenile. The learned Sessions Judge has completely misread the scope of an appeal under Section 101(2) of the Act which arises from an order passed under Section 15 of the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>Though in the present case, the appeal has been filed invoking Section 101(1) of the Act, since the order impugned in appeal is one passed under Section 15 of the Act, the appeal lies only under Section 101(2) of the Act and not under Section 101(1) of the Act. This aspect has been lost sight of by the learned Sessions Judge.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>The Bombay High Court in the case of SHUBHAM @ BABLU MILIND SURYAVANSHI VS THE STATE OF MAHARASHTRA (Bail Application No.2282/2021, disposed of on 21.10.2022), considering the question whether on being tried as an adult, is the juvenile denuded the statutory right available to him under Section 12 of the Act, has answered the said question in the negative and has held that the application under Section 12 of the Act by the juvenile against whom an order under Section 15 of the Act is passed for trying him as an adult is maintainable and he need not file an application under Section 439 Cr.PC for grant of bail. The parameters for considering the application for bail by a juvenile under Section 12 of the Act are clearly distinguishable from the application one under Section 439 Cr.PC. As against the orders passed under Section 12 of the Act, an appeal lies to the competent court under Section 101(1) of the Act whereas against the order passed under Section 15 of the Act appeal lies to the competent court under Section 101(2) of the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>Section 12 of the Act provides that a juvenile who is brought before the Board shall be released on bail notwithstanding anything contained in the Code of Criminal Procedure, 1973, or any other law for the time being in force with or without surety or placed under the supervision of a probation officer or under the care of any fit person. The only embargo in not releasing the juvenile on bail under this Section is the proviso to the said Section which prescribes that if there appears reasonable ground for believing that the release is likely to bring the juvenile into association with any known criminal or expose the juvenile to moral, physical or psychological danger or the juvenile\'s release would defeat the ends of justice. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>Undisputedly, the petitioner was aged 16 years 11 months 9 days at the time of committing the crime and after recording the reasons and complying with the requirement of Section 15 of the Act, the Board has recorded a finding that the petitioner is required to be tried as an adult by the Children\'s Court. Inspite of the petitioner challenging the said order in appeal before the Sessions Court, it is always open to him to also file an application under Section 12 of the Act for grant of bail. If the same is filed, the Sessions Court is required to consider the same strictly in compliance of the requirement of Section 12 of the Act. Since the learned Sessions Judge has failed to consider the appeal arising out of an order passed under Section 15 of the Act in compliance of the requirement of Section 101(2) of the Act, the impugned judgment and order passed by the Sessions Court in Crl.A.No.360/2021 cannot be sustained. Accordingly, the following order: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>The revision petition is allowed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9032585479d1981fe993b913bfe31363.jpeg', '7bc70be05acd53a247131339340da98b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-14', 1, '', '', '2023-03-13 18:44:52', '2023-03-14 09:03:43'),
(2789, 'ii56nqhi8YyfpUPoGPyxExnR3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Child custody. Principle of Comity of Courts cannot override the consideration of best interest and welfare of the child. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sankar Viswanthan Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P.H.C 46 of 2022 decided on 9 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Alok Aradhe and Justice Vijaykumar A. Patil.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2.<span style=\"white-space: pre;\">	</span>Facts giving rise to filing of this writ petition briefly stated are that the petitioner as well as respondent No.2 (hereinafter referred to as the wife) got married on 07.10.2013 at Bangalore, Karnataka. The wife joined the matrimonial home in Germany. Thereafter, on 21.10.2016 a child viz., Master Siddharth Sankar (hereinafter referred to as the son) was born in Germany. It appears that on account of matrimonial dispute, the wife left Germany on 16.05.2017 along with the son. The petitioner thereupon filed a petition on 17.05.2017 before the jurisdictional court in Germany seeking custody of the son. However, by the time i.e., 17.05.2007, an order was passed by the jurisdictional court in Germany granting custody to the petitioner and directing that the son will not be taken out of the borders of the Germany, the wife  had already landed  in India with the son.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The petitioner thereafter on 01.06.2017 preferred a petition in Germany for return of the son on the ground that wife is staying in India in contravention of the  order dated 17.05.2017  passed by the German Court and that the  visa  of  the  child was due to expire in two months and therefore, it was necessary for the child to return to Germany. However, the wife on 01.06.2017 bought the child’s e- visa converted into stay visa by Foreigners Regional Registration Officer (FRRO), Bangalore. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>The wife thereafter filed a petition on 07.06.2017 seeking dissolution of marriage as well as permanent alimony of Rs.4 Crores and permanent custody of the son. Thereafter, she filed a petition under Section 6 of the  Guardians  and  Wards  Act, 1890 (hereinafter referred to as \'the Act\' for short) on 13.06.2017 and sought a declaration that she be declared as natural guardian of the son and be permitted to continue to have custody of the son.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>Thereafter wife entered appearance in German court on 07.11.2017 and the  petitioner  as well as the wife agreed that the petitioner shall pursue the dispute with regard to custody of the son in India. The petitioner further agreed that in case, wife returns to Germany, the abduction charges against her would be dropped. The petitioner thereafter, filed petitions from 13.11.2017 till 28.01.2019 seeking visitation rights. The petitioner thereafter, has filed this petition on or about 27.05.2022 seeking the writ of habeas corpus.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>We have considered the submissions made on both sides and have perused  the  record. The United Nations (UN) General Assembly Summit  in 1990 adopted a declaration on survival  , protection and development of children. In 1990 in which India participated and also acceded to Convention on Rights of a child (CRC) on 11.12.1992. Article 9 of UN Convention of Rights for Child provides that a child shall not be separated from his or her parents against his will except when competent authorities subject to judicial review determine in accordance with applicable laws and procedure that such separation is necessary for best interest of the child. Article 35 mandates the State parties to prevent abduction of children for any purpose in any form. The Parliament has enacted an Act viz., The Commission for Protection of Child Rights Act, 2005. The aforesaid Act is an Act to provide for constitution of a National Commission and State Commissions for protection of child rights and Children\'s Court for providing speedy trial of offences against will or violation of child rights and for matters connected therewith or incidental thereto.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>The writ of habeas corpus is a prerogative writ and is an extraordinary remedy. It is a writ  of right not a writ of course and may be granted only when the reasonable or probable cause been shown. The exercise of extraordinary jurisdiction for issuance of writ of habeas corpus would be dependant on jurisdictional fact where the petitioner establishes a prima facie case that detention is unlawful. It is only when such a jurisdictional fact is established, the petitioner becomes entitled to the writ as  of  right. [See:   \'RAJESHWARI   CHANDRA   SHEKAR   GANESH supra]. The son is in the custody of the wife in pursuance of an interim order dated 08.06.2017 passed in M.C.No.2716/2017 by Family Court, Bangalore. The aforesaid interim order is still in force. Therefore, the custody cannot be said  to  be  illegal. The remedy of writ of habeas corpus cannot be used for enforcement of an exparte order passed by the German Court, which was not in existence at the time when the son left Germany. No exceptional circumstances are made out by the husband to demonstrate that the son should be repatriated to Germany and in case, the  son continues to stay with the wife in Bangalore, it would not be in the interest of the son. No material, which is convincing or persuasive enough has been produced by the petitioner for grant of the relief. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>As we have already held that no case for repatriation of the son to Germany has been made out, it is not necessary for us to advert to the offer made by the petitioner. It is pertinent to note that petitioner has not sought custody of the son but is merely seeking repatriation of the son to Germany. Ordinarily, bearing in mind that it is in the  best interest of the child to have parental care of both the parents, we would have granted visitation rights. However, the issue with regard to grant of visitation rights is pending adjudication before the Family court, wherein several orders have been passed in favour of the petitioner. Therefore, we refrain from doing so. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>We may now deal with the submissions made on behalf of the petitioners. The contention that under United Nations Convention and Human Rights, the child should return to Germany, is concerned, the same does not deserve acceptance as by an interim order dated 08.06.2017 passed in M.C.No.2716/2017, passed by the Family court, the custody of the son has been given to the wife and the petitioner has been restrained from coming within 500 meters of the wife and the minor son. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>For the aforementioned reasons, in our opinion in the best interest of the son, he should be allowed to stay with the wife in India till the issue pertaining to custody of the son in a proceeding under the Guardian And Wards Act, 1890 is adjudicated. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>It is made clear that the observations / findings in this order have been made for the purposes of deciding the controversy in this petition and will have no bearing on any other proceeding, which has to be dealt with on its own merit. For the aforementioned, reasons we do not find any merit in this petition. The  same  fails  and  is hereby dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1e6f09be11d2738a27dd533adf280709.jpeg', '8d38354ca2ae76294259e0f8ced9c22b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-14', 1, '', '', '2023-03-13 18:54:30', '2023-03-14 10:29:51'),
(2790, 'EtQAj7uYjnpy37Xz5wrQNCc8G', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit filed by Bank for recovery of loan amount due from its debtor is not barred under Section 34 of the SARFAESI Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chandru and others Vs Bank of Baroda.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 539 of 2022 decided on 20 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In a suit for recovery filed by the Bank, the 2nd defendant filed an application under Order 7 Rule 11(d) read with Section 151 of CPC stating that the jurisdiction of the Civil Court is barred under Section 34 of SARFAESI Act. The Trial Judge rejected the application. Hence, this petition. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The learned counsel appearing for the defendants- petitioners submits that the respondent - Bank having taken steps for recovery of the loan under the provisions of the SARFAESI Act, the present suit is barred as specified under Section 34 of the SARFAESI Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 3.<span style=\"white-space: pre;\">	</span>Section 34 of the SARFAESI Act specifies that no civil court shall have jurisdiction to entertain any suit or any matter which a Debts Recovery Tribunal is empowered by or under this Act to determine, to put it simply, the action taken by the respondent - Bank under the provisions of the SARFAESI Act cannot be adjudicated by Civil Court. In the present case, the suit is filed for recovery of the alleged loan amount due from the defendants, and the action taken by the Bank under the SARFAESI Act, is not challenged in the suit. I do not find any illegally in the impugned order passed by the Trial Court.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Revision petition is dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '51ded8d33069fd4d8c60eeca0412413e.jpeg', '6fc81cab5ba38f3f5f98d4c33e0322e6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-15', 1, '', '', '2023-03-14 13:24:07', '2023-03-15 03:21:49'),
(2791, 'C2MHNgyBS2Nq4WBAt6dmaFJEv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration award can be set aside partially under Section 34 of the A & C Act applying the principle of severability. Delhi High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Amazing Research Laboratories Ltd Vs Krishna Pharma.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>O.M.P (COMM) 376 of 2020 decided on 13 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Neena Bansal Krishna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The present petition under Section 34 of the Arbitration and\r\nConciliation Act, 1996 (hereinafter referred to as “Act, 1996”) has been\r\nfiled on behalf of the petitioner for setting aside the Award dated\r\n19.11.2019 passed by the Sole Arbitrator.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The facts in brief are that the Claimant Company i.e., the petitioner\r\nherein, is engaged in the business of manufacturing and selling a large\r\nvariety of pharmaceutical formulations in the form of Tablets, Capsules,\r\nDry Syrups etc., and is carrying on the business of outsourcing and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">distribution of such products. The respondent, a proprietorship firm in\r\nwhich Mr. C.K. Velmurugan is a Proprietor, entered into a Distributor on\r\nConsignee Agency Basis Agreement dated 28.12.2007 with the validity of\r\ntwo years w.e.f. 01.04.2008 to 31.03.2010. The Agreement was renewed\r\nvide Agreement dated 01.04.2010 upto 31.03.2012</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. Further, when the respondent did not agree to the name of the\r\nnominated arbitrator, the proceedings under Section 11 of the A & C Act,\r\n1996 were initiated by the petitioner vide Arbitration Petition bearing no.\r\nArb.P. 28/2018 wherein the respondent submitted that it had no objection <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">if an Arbitrator was appointed for adjudicating the disputes that had arisen\r\nbetween the parties.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. The other question is whether a Notice which is not directly\r\naddressed to the respondent, can be considered as compliance under\r\nSection 21 of the A&C Act, 1996. This aspect came for consideration in\r\nPrasar Bharti Vs. Multi Channel (India) Ltd, 2005 Supp Arb LR 245,\r\nwhere the Notice of Invocation under Section 21 was addressed to\r\nDirector General who is the appointing body, and a copy was endorsed to\r\nthe respondent. It was observed that the object of giving a Notice of\r\nInvocation is essentially to put the other party to Notice that there are\r\ndisputes which the party intends to refer to Arbitration. This is to enable\r\nthe other party to resolve the disputes, if possible, and/or to agree on the\r\nArbitrator in terms of the Clause in their Agreement. The Notice as\r\ndescribed above was held to be sufficient compliance of the requirements\r\nunder Section 21 as information regarding the dispute and the invocation\r\nof arbitration had been conveyed to the other party even if the Notice was\r\nnot directly addressed to them.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>52. In the present case, there is neither any averment nor any evidence\r\nthat the respondent while making payments to the appellant in terms of the\r\nContract ever indicated the manner of apportionment. When neither party\r\nspecifies the manner of apportionment, then the amount has to be first\r\nadjusted towards earlier debts irrespective of limitation as indicated by\r\nSection 61 Contract Act. Thus, the money which was continuously being\r\nreceived from the respondent was to be apportioned to the previous\r\namounts that were due in the earlier Agreements as has been reflected in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the ledger accounts. The amount as due in 2018 was the claimed amount\r\nof Rs.2,64,99,671/-.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>61. The conundrum which now arises is whether there can be partial\r\nsetting aside of the Award or would it amount to modification of Award\r\nand has to be necessarily set aside in toto leaving the parties for a fresh\r\nround of arbitration, if so advised.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>62. The said question had been engaging attention of the Courts and\r\ndivergent views have been taken by the Courts. The question came up for\r\nconsideration before Full Bench of Bombay High Court in the case of R.S.\r\nJiwani (M/S.) Vs. Ircon International Ltd., 2009 SCC OnLine Bom 2021\r\nwherein some claims were allowed while some were rejected<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>63. It was further observed that such an interpretation that the Award\r\nhas to be set aside in its entirety is bound to cause greater hardship,\r\ninconvenience and even injustice to some extent to the parties. To compel\r\nthe parties, particularly a party who had succeeded to undergo the arbitral\r\nprocess all over again does not appear to be in conformity with the\r\nscheme of the Act. The provisions of Section 34 are quite pari materia to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the provisions of Article 34 of the Model Law except that the proviso and\r\nexplanation have been added to Section 34(2)(iv). The attempt under the\r\nModel Law and the Indian Law appears to circumscribe the jurisdiction of\r\nthe court to set aside an award. There is nothing in the provisions of the\r\nAct and for that matter absolutely nothing in the Model Law which can\r\ndebar the court from applying the principle of severability provided it is\r\notherwise called for in the facts and circumstances of the case and in\r\naccordance with law. The courts will not get into the merits of the dispute.\r\nThus, the interpretation which should be accepted by the court should be\r\nthe one which will tilt in favour of the Model Laws, scheme of the Act\r\nand the objects sought to be achieved by the Act of 1996.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>66. It thus settled the law and held that the court does not possess the\r\npower to modify an arbitral award while hearing a challenge under\r\nSection 34 of the Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>70. In the present case, the respondent has not contested the matter\r\nbefore the ld. Arbitrator and has also not challenged the impugned Award.\r\nSo much so there is an admission of liability by the respondent. In these\r\ncircumstances, to drive the parties to Arbitrate the entire dispute afresh\r\ndespite admissions would indeed be extreme harshness which is not in\r\naccordance with the ethos of arbitration.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>71. This aspect of setting aside of partial Award may also be viewed in\r\nthe context of section 31(6) of the Act, 1996 which permits the passing of\r\nan interim award by the Arbitral Tribunal on any matter with respect to\r\nwhich it may make a final award. S.2(c) of the Act,1996 clearly provides <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that the term \"arbitral award\" includes an interim award which can be\r\nchallenged under Section 34 of the Act and not under Section 37 of the\r\nAct.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>73. Division Bench of Delhi High Court in the case of Numero Uno\r\nInternational Ltd. v. Prasar Bharti (2008) 1 Arb LR 446 (Delhi) observed\r\nthat there is no reason why the payment of what is admittedly due, should\r\nawait the determination of other disputes which may take years before\r\nthey are finally resolved. Similar are the observations made by this Court\r\nin the case of Nimbus Communications Ltd. v. Prasar Bharati, FAO(OS)\r\n369/2015 decided on 05th April, 2016 by this Court.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>74. Applying the aforesaid principles to the present case, as already\r\nnoted above, the respondent has admitted its liability to the tune of Rs.\r\n1,64,73,786/- out of which only a sum of Rs. 28,92,620/- has been\r\nawarded. The Award is fully justified in the circumstances and admissions\r\nand if the respondent was aggrieved, it was at liberty to challenge it under\r\nS.34 of the Act. The award of this partial amount can also be considered\r\nas interim Award and need not be set aside in the given circumstances.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>75. In the light of above discussion, it is held that the impugned Award\r\nsuffers from patent illegality to the extent of rejection of Claim for Rs. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rs.2,36,07,051/- out of the total Claim of Rs.2,64,99,671/- (excluding\r\ninterest) and is hereby set aside. The parties are at liberty to take\r\nappropriate remedy or initiate the arbitration proceedings afresh as per\r\nlaw. No order as to costs is made in the given circumstances. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '55fa60149f6486fdb911b59fe67f5ff0.jpeg', 'e6cfe1ceed588c268815043568d75752.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-15', 1, '', '', '2023-03-14 13:56:42', '2023-03-15 10:29:02'),
(2792, 'bKzQCMEVWF4OFi6FjraUfdi0S', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'POCSO Act. Though victim shall not be called frequently for cross examination, fair trial being a fundamental right, the court shall not deny sufficient opportunity to the accused. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jayanna B Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 3987 of 2022 decided on 13 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Natarajan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. This petition is filed by the petitioner-accused under\r\nSection 482 of Cr.P.C. setting aside the order of dismissal of\r\nthe application under Section 311 of Cr.P.C filed by the learned\r\ncounsel for the petitioner for recalling of PW-1/victim in\r\nSpl.Case.No.510/2017 vide order dated 18.04.2022 for the\r\noffences punishable under Sections 4 and 8 of the Protection of\r\nChildren from Sexual Offences Act, 2012 (for short ‘POCSO’\r\nAct)</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. The case of the prosecution is that the petitioneraccused is facing trial before the Special Court (POCSO Court) </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">or the offences punishable under Sections 4 and 8 of the\r\nPOCSO Act. The P.W.1/victim prosecutrix the\r\ncross-examination as P.W.1 and she said to be remained\r\nabsent for cross-examination and the Police have brought her\r\nback for cross-examination. Learned counsel for the petitioner\r\nis said to have sought some adjournment for cross-examination\r\nwhich came to be rejected and cross-examination of P.W.1 was\r\ntaken as ‘nil.’ Thereafter, the application filed by the learned\r\ncounsel for the petitioner for recalling P.W.1 for the purpose of\r\ncross-examination came to be rejected and the matter was\r\nposted for final arguments, which is under challenge.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>6. Of course, as per Section 33 of the POCSO Act, the\r\nprosecutrix/victim and shall not be called frequently for crossexamination by the Court. However, that does not mean there\r\nshall not be any opportunity given to the accused for the\r\npurpose of prosecution cross-examination of the prosecution\r\nwitness.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. Of course, there was a defect on the part of the\r\nlearned counsel for the accused for not cross-examined the\r\nprosecution witness and he sought time. However, the Court at\r\nfirst instance, though rejected ought to have considered\r\nsympathetically and allowed the applicant to cross-examine\r\nP.W.1.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8. This Court in a catena of decisions held that fair\r\ntrial is a fundamental right which is guaranteed under Article 21\r\nof the Constitution of India. Of course, the trial is to be\r\nconcluded within one year under the POCSO Act. The delay\r\nshould be curtailed but that does not mean the Court should\r\nallow cross-examination without giving a fair opportunity to the</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">accused to defend the case. The trial Court ought to have\r\ngiven one more opportunity to the petitioner for\r\ncross-examination of the witness. Accordingly, the order of the\r\ntrial Court deserves to be set aside.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\nThe petition is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8560cf9326faec83a3abff0d555b2063.JPG', '87c6ac9e587c7e9ea87ee034e52928d4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-15', 1, '', '', '2023-03-14 15:43:54', '2023-03-15 12:23:07');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2793, 'oOZ4ljvMT2s4GE2qxsnUHMZdP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal law. When court directs life sentence to start first, the term sentence would run concurrently with the life sentence. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ramachandra Reddy Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 3359 of 2022 decided on 8 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioners in these petitions are before this Court\r\nseeking a prayer that the order of conviction dated 25.11.2010,\r\npassed in S.C.No.2/2007, by the District and Sessions Judge,\r\nChikkaballapura, for different offences to run concurrently.\r\nPetitioners are convicted - accused Nos.1 and 2.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Brief facts of the case that leads the petitioners to this\r\nCourt in the subject petitions as borne out from the pleadings are\r\nas follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\nOn 03.09.2002, as crime comes to be registered against\r\naccused Nos.1 to 3 for the offences punishable under Sections 302, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">201, 120B, r/w. 34 of the IPC. The concerned Court took\r\ncognizance of the offences in C.C.No.442/2002 and after the case\r\nbeing committed to the Court of Sessions, the Sessions Judge\r\nregisters a case in S.C.No.45/2003. The Sessions Court in terms of\r\nits order dated 09.12.2010, convicts accused Nos.1 and 2, the\r\npetitioners herein and sentenced to undergo life imprisonment and\r\npay fine of Rs.50,000/- for offence punishable under Section 302 of\r\nthe IPC and in default of payment of fine, they shall undergo further\r\nrigorous imprisonment for a period of six months. They were also\r\nconvicted and sentenced to undergo rigorous imprisonment for a\r\nperiod of ten years and payment of Rs.50,000/- each and in default\r\nto pay fine, to undergo further rigorous imprisonment for a period\r\nof six months for the offence punishable under Section 394 of the\r\nIPC. The petitioners are now knocking at the doors of this Court\r\ncontending that they are in prison since 22.09.2002, which is more\r\nthan twenty years as of now and are entitled to seek remission or\r\npremature release in terms of the Rules and guidelines. What is\r\ncoming in the way is the absence of a direction by the concerned\r\nCourt that the sentences should run concurrently. Therefore,\r\nnotwithstanding the petitioners completing twenty years in prison </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">are not entitled to seek remission on the ground that the sentence\r\nfor offence punishable under Section 394 of the IPC, is in operation.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The issue in the lis is in the absence of a direction in the\r\norder of sentence, not indicating whether the offences would run\r\nconcurrently or separately and whether the relief could be granted\r\nto the petitioners.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6.... <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The order directs that the convicts/accused 1 and 2 are ordered to\r\nundergo life imprisonment for offence punishable under Section 302\r\nof the IPC. Further, for offence punishable under Section 394 of the\r\nIPC, they are required to undergo rigorous imprisonment for 10 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">years. There is no indication in the order whether the sentences\r\nwould run concurrently or one after the other. Therefore, the issue\r\nwith regard to such finding is left unattended by the concerned\r\nCourt. The maximum punishment that is imposed initially against\r\nthe petitioners is imprisonment for life for offence punishable under\r\nSection 302 of the IPC and later imprisonment for 10 years under\r\nSection 394 of the IPC. On the bedrock of the principles laid down\r\nby the judgment of the Apex Court that if life imprisonment is the\r\npunishment that is imposed, the term sentence will have to run\r\nconcurrently and in the light of the issue being covered by the\r\njudgments quoted (supra), I deem it appropriate direct that the\r\nsentence imposed upon the petitioners by the impugned order of\r\nconviction dated 25.11.2010 in S.C.No.02 of 2007 passed by\r\nDistrict and Sessions Judge, Chikkaballapura would run\r\nconcurrently.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. The Criminal Petitions are allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a8d71a2ef61068a76d8e38e7e1b86d38.jpeg', 'ec1b533439aac2b2f61d08058346cbe4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-15', 1, '', '', '2023-03-14 15:50:28', '2023-03-15 09:06:13'),
(2794, 'KgzxBwzMGfufa06OJZxv7H31S', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Forcible takeover of land for road widening simply because other landowners voluntarily surrendered their lands is impermissible. Karnataka High Court restrains Govt from interfering with landowners properties except in accordance with law. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K V Srinivas Rao and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 24580 of 2021 decided on 17 January 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The short grievance of the Petitioners regardless of\r\nthe lengthy pleadings & prayer is as to land forcibly being\r\ntaken away by the Authorities for the expansion of the\r\nroad in question even when they are not agreeable\r\nthereto.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Learned counsel for the Petitioners argues\r\nthat the Right to Property though not a Fundamental\r\nRight is constitutionally guaranteed under Article 300A;\r\nhis clients cannot be compelled to give up their property\r\nexcept in accordance with law; his clients are not\r\nagreeable for relinquishing their property and therefore,\r\nif at all the State wants these properties, the acquisition\r\nprocess under 2013 Act is the only course open. He\r\nargues that his clients’ ownership & possession should be\r\nprotected from interference of the Respondents save with\r\nthe authority of law.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 3. Learned AGA appearing for the State and the\r\nlearned Panel Counsel appearing for the Respondent –\r\nAuthority together submit that some of land owners have\r\nagreed and accordingly given up their lands by executing\r\nRelinquishment Deeds and therefore, this course is open\r\nto the Petitioners as well wherein the compensation\r\npayable would be three times the Guideline value\r\nkeeping in view the provisions of Right to Fair <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Compensation and Transparency in Land Acquisition,\r\nRehabilitation and Resettlement Act, 2013. So\r\ncontending, they both seek dismissal of these Writ\r\nPetitions.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 4. Having heard the learned counsel for the\r\nparties and having perused the Petition Papers, this\r\nCourt is broadly in agreement with the submission made\r\non behalf of the Petitioners that their lands cannot be\r\ntouched by the State and the authorities, save by\r\nacquisition in accordance with law the Right to Property\r\nhaving been constitutionally guaranteed. If others have\r\ngiven up their land, that cannot be a legal ground to\r\ncompel the Petitioners to give up their land too, since\r\nconstitutionally guaranteeed avails to the property of\r\nindividuals and not necessarily the collection of\r\nindividuals. An argument to the contrary would\r\nundermine the sanctity & efficacy of Article 300A and\r\ntherefore, cannot be countenanced.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In the above circumstances, these Writ Petitions\r\nsucceed in part; the Respondents are restrained from\r\ninterfering with the properties of the Petitioners till after\r\nthe same are acquired in accordance with law, namely\r\n2013 Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n Ordered accordingly.\r\n No costs. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '03c7f857943424c62c2183946ee29a3e.JPG', '1a38a6ef7030b6f04210ffb6788426ae.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-15', 1, '', '', '2023-03-14 15:59:34', '2023-03-15 06:58:54'),
(2795, 'd7NPdK7OksiyOoiEgU09snEiY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Order IX Rule 9. Dismissal of suit for default barring fresh suit. The bar will not apply when alternate prayers are made in the subsequent suit which were not made earlier. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ganesh Prasad Vs Rajeshwar Prasad and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1699 of 2023 decided on 14 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sudhanshu Dhulia and Justice J.B. Pardiwala.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. This appeal is at the instance of the Original Defendant of Suit No. 154 of 2009\r\ninstituted by the Plaintiffs in the Court of Civil Judge (J.D.), Eastern, District Ballia for\r\npossession of the suit property upon redemption of mortgage and is directed against the\r\norder passed by the High Court of Judicature at Allahabad dated 04.07.2018 in the Civil\r\nMiscellaneous W.P. 1346 of 2015, thereby affirming the order passed by the Additional\r\nDistrict Judge dated 25.02.2015, permitting the Plaintiffs to amend the plaint under the\r\nprovisions of Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short, ‘the\r\nCPC’).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The subject matter of the civil suit is a property in the form of a Shop in Block\r\nNo. 2-5, A. No. 25, 26, 27, 28, 29 situated at Chowk, City Ballia, Pargana and District\r\nBallia. The Plaintiffs claim to be the lawful owners of the suit property. It is the case of\r\nthe Defendant that the father of the Plaintiffs had executed a mortgage deed in favour of\r\nthe father of the Defendant in respect of 1/3rd portion of the suit property described\r\nabove and was put in possession of the shop. Thus, according to the Defendant, the\r\nfather of the Plaintiffs was the mortgagor and his father was the mortgagee. The said\r\nregistered mortgage deed is said to have been executed on 12.02.1957.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. From 1957 till 2005, the mortgagee continued to remain in possession of the suit\r\nproperty as neither the mortgage money was paid nor the mortgage was redeemed and\r\nupon lapse of 30 years’ time period, the mortgagor’s right in the mortgaged property\r\nstood extinguished in terms of Article 61A of the Schedule to the Limitation Act, 1963\r\n(for short, ‘Act, 1963’). Sometime in the year 2005, the father of the Defendant i.e., the\r\nmortgagee, namely, Shree Gulab Chand died.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. On 15.03.2007, the Plaintiffs instituted, the Small Cause Suit No. 3 of 2007\r\nagainst the Appellant Defendant herein and four others in the Court of Small Causes\r\nJudge (Senior Division) for a declaration that the Plaintiffs are the lawful owners of the\r\nsuit property i.e., the shop and the same had been let out to the father of the Appellant\r\nDefendant herein and after the demise of the father of the Defendant, he stopped paying\r\nthe rent to the Plaintiffs and illegally inducted defendant Nos. 2 to 5 resply as subtenants in the shop in question. Thus, the Plaintiffs prayed for a decree of possession of\r\nthe shop. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32. Having heard the learned counsel appearing for the parties and having gone\r\nthrough the materials on record the only question that falls for our consideration is\r\nwhether the High Court committed any error in passing the impugned order.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>39. In the case on hand, the first suit filed in the Small Causes Court was on the\r\npremise that the Defendant as a tenant was in arrears of rent and had unlawfully <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">inducted sub-tenants in the tenanted premises. Thus, the Plaintiffs put forward a case,\r\nas if, there was a landlord tenant relationship between the parties. The said suit came to\r\nbe dismissed for non-prosecution. Later in point of time, the present suit came to be\r\nfiled in the Civil Court with the prayer that the Plaintiffs be permitted to redeem the\r\nmortgage and take back the possession of the suit property.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>40. It appears that the present suit in which the courts below permitted the Plaintiffs\r\nto amend the plaint is based on the stance taken by the Defendant in his written\r\nstatement filed in the first suit i.e., the Small Cause Case No. 3 of 2007, which came to\r\nbe dismissed for non-prosecution. However, it appears that the Plaintiffs have not\r\ngiven up their case that the Defendant is a tenant in the suit property and has inducted\r\nsub-tenants. It is also the case of the Plaintiffs that the Defendant is in arrears of rent.\r\nThus, the stance of the Plaintiffs in the present suit is two-fold. First, as regards the\r\ntenant-landlord relationship and secondly, the case of redemption of mortgage.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>41. The pleadings are so poor and pathetic that as a result, this Court found it\r\nextremely difficult to understand what the Plaintiffs intend to say by way of the\r\namendment. With lot of effort, ultimately what we have been able to understand is that\r\nthe father of the Appellant Defendant, namely, late Gulab Chand was the mortgagee of\r\nthe suit property. The father of the Plaintiffs, namely, late Harihar Prasad was the\r\nmortgagor and he executed a mortgage deed dated 12.02.1957 in favour of the father of\r\nthe Appellant Defendant for a sum of Rs. 700/-. The grandfather of the Appellant\r\nDefendant, namely, late Laxman Prasad remained in occupation of the suit property as a\r\ntenant from the year 1953 at the rate of Rs. 23 monthly rent and later the father of the\r\nAppellant Defendant occupied the suit property, as a tenant till the year 2005 i.e., the\r\nyear of his demise. Thereafter, the Appellant Defendant became the tenant of the suit\r\nproperty. What is sought to be conveyed by the Appellant Defendant is that the\r\ngrandfather and father of the Plaintiffs were tenants in the suit property and a mortgage\r\ndeed was also drawn and executed in the year 1957 with respect to the same property. It\r\nis also the case of the Plaintiffs that the Appellant Defendant has inducted sub-tenants in\r\nthe suit property.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>49. The Appellant Defendant has also put forward an argument as regards the\r\napplicability of Order IX Rule 9 of the CPC to make good his submission that the\r\namendment should not be permitted as the present suit by itself is not maintainable as\r\nthe earlier suit filed in the Small Causes Court came to be dismissed for non-prosecution\r\nunder the provisions of Order IX Rule 8 of the CPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>52. Order IX Rule 9 bars fresh suit in respect of the same cause of action in case the\r\nearlier suit was dismissed as indicated in Order IX Rule 8 of the CPC. The term “same\r\ncause of action” assumes significance in as much as the bar under Order IX Rule 8 of\r\nthe CPC applies to a later suit only in respect of the very same cause of action. In case\r\nthe cause of action in the later suit was altogether different, which has nothing to do\r\nwith the cause of action in the earlier suit, the statutory bar has no application to such\r\nlater suits. It was only with a view to curb the tendency of filing multiple suits, on the\r\nbasis of the very same cause of action, successively even after the dismissal of the\r\nearlier suit that such a provision has been introduced. It was not the intention of the\r\nLegislature to bar the subsequent suits between the parties and the same was evident by\r\nthe qualifying words, “same cause of action”. Therefore, everything depends upon the\r\ncause of action and in case the subsequent cause of action arose from a totally different\r\nbunch of facts, such suit cannot be axed by taking shelter to the provision of Order IX\r\nRule 9 of CPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>60. Thus, we may sum it up saying that Order IX Rule 9 of the CPC provides that\r\nwhen the suit is wholly or partially dismissed under Rule 8 (dismissed for default) the\r\nPlaintiffs shall be precluded from bringing in a fresh suit, in respect of the same cause of\r\naction. The present suit i.e., Suit No. 154 of 2009 filed in the\r\nCourt of Civil Judge (J.D.) Eastern, District Ballia is not filed on the same cause of\r\naction. In the present suit, the case of the Plaintiffs as put up in the alternative is that the\r\nDefendant is in possession of the suit property as a mortgagee and they are ready to\r\nredeem the mortgage by making the necessary payment of the mortgaged amount and\r\ntake back the possession. Whether the relief prayed for is time barred or not is for the\r\ntrial court to decide on the basis of the evidence that the parties may lead. As observed\r\nby the Privy Council in Mohammad Khalil Khan (supra) if the evidence to support the\r\ntwo claims is different than the causes of action are also different. Hence, the contention\r\nraised on the basis of the provisions of Order IX Rule 9 of the CPC has no merits.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>61. The matter may also be looked at from a different angle. Let us assume for the\r\nmoment that in the first suit also the plaintiffs had prayed for a relief, seeking\r\nredemption of mortgage as prayed for in the present suit. Even in such circumstances,\r\nwhether with both the reliefs identical in the two suits and the cause of action also the\r\nsame, the provisions of Order IX Rule 9 of the CPC would operate as a bar for the\r\nmaintainability of the present suit. The right to redeem, is a right conferred upon the\r\nmortgagor by an enactment, of which he can only be deprived by means and in manner\r\nindicated for that purpose and strictly complied with. In Shridhar Sadba\r\nPowar v. Ganu Mahadu Kavade and others reported in ILR (1928) 52 Bom 111, a suit\r\nfor redemption was filed but was dismissed under Order IX, Rule 8, of the CPC. The\r\nmortgagor brought a second suit for redemption and it was contended that it was barred\r\nunder Order IX Rule 9 of the CPC. Marten, C.J. and Crump, J. rejected this plea. The\r\nlearned judges relied on the previous decisions of the Bombay High Court\r\nincluding Ramachandra Kolaji Patil v. Hanmantha reported in ILR (1920) 44 Bom <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">939, and pointed out that the decision of the Privy Council in Thakur Shankar Baksh\r\nv. Dya Shankar and Others reported in (1887) LR 15 IA 66, was not against the view\r\ntaken by them, as it was decided on a different state of law. In Vithal Rajaram Sutar\r\nand another v. Ramchandra Pandu Jadhav and others reported in AIR 1948 Bom 226,\r\na Full Bench of the Bombay High Court held that the general terms of Order XXII Rule\r\n9 of the CPC, which provided that where a suit abated or was dismissed under the\r\nOrder, no fresh suit shall be brought on the same cause of action, cannot override the\r\nspecific terms of Section 60 of the TP Act. It was pointed out that the CPC dealt with\r\nthe procedure relating to all suits. There was a special law which dealt with the rights of\r\nmortgagors and mortgagees and that substantive law was to be found in the Transfer of\r\nProperty Act. That substantive law provided only two ways in which the right of\r\nredemption can be extinguished and they were: (i) by act of the parties, or (ii) by decree\r\nof the court. The right of redemption is an incident of a subsisting mortgage and it\r\nsubsists so long as the mortgage itself subsists. As held by the Privy Council\r\nin Bhaiya Raghunath Singh and others v. Musammat Hansraj Kunwar and\r\nothers reported in (1933-34) 61 IA 362, the right of redemption can be extinguished as\r\nprovided in Section 60 of the Transfer of Property Act and when it is alleged to have\r\nbeen extinguished by a decree, the decree should run strictly in accordance with the\r\nform prescribed for the purpose. Unless the equity of redemption is so extinguished, a\r\nsecond suit for redemption by the mortgagor, if filed within the period of limitation, is\r\nnot therefore barred.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>62. It follows, therefore, that if the right of redemption is not extinguished, the\r\nprovision like Order IX Rule 9 of the CPC will not debar the mortgagor from filing a\r\nsecond suit because as in a partition suit, the cause of action in a redemption suit is a\r\nrecurring one. The cause of action in each successive action, until the right of\r\nredemption is extinguished or a suit for redemption is time barred, is a different one.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>63. In the result, this appeal fails and is hereby dismissed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1a40f02ff2e88baedc560caff42d9c3f.jpeg', '89b48e69dafb7ab1e790edfaee82bca4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-16', 1, '', '', '2023-03-15 13:14:46', '2023-03-16 07:06:53'),
(2796, 'CeiTQPYio33gLOXA6kTIKvd4X', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Once rural area is urbanized by a notification under the Delhi Municipal Corporation Act, 1957, the provisions of the Delhi Land Reforms Act, 1954 cease to apply. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mohinder Singh Through LRS and another Vs Narain Singh and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3828 of 2017 decided on 14 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ajay Rastogi, Justice C.T. Ravikumar and Justice Bela M. Trivedi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. The instant appeal is directed against the judgment and order dated 22nd November, 2012 passed by the Division Bench of the High Court of Delhi holding that once the rural area is urbanized by issuance of a notification under Section 507(a) of the Delhi Municipal Corporation Act, 1957(hereinafter being referred to as the “Act 1957”), it ceases to be governed by the provisions of the Delhi Land Reforms Act, 1954(hereinafter being referred to as the “Act 1954”) in sequel thereto and held that the proceedings under Act, 1954 were non est leaving the parties to agitate their claims/disputes before appropriate fora clarifying that all pleas in law shall remain available to the parties before the appropriate forum. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The facts in seriatim as manifest from the record are that one Maman Singh who was a recorded Bhumidhar of the land admeasuring 4 Bighas 18 Biswas in Khasra No. 6/19/2 M in village Samepur, Delhi as alleged, sold the land to one Bhai Ram vide registered sale deed dated 9th March, 1970. The respondents Narain Singh and Som Dutt have purchased 2 Bighas 18 Biswas and 2 Bighas respectively from Shri Maman Singh by a registered sale deed dated 4th May, 1989. Later, they applied for mutation under Act, 1954 and their names were mutated on 31st May, 1989.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. It has been pleaded by the appellants that before the registered sale deed dated 4th May, 1989 came to be executed by Maman Singh in favour of the respondents herein and their names were mutated on 31st May, 1989, the appellants had come into possession over the subject land. The appellants later challenged the mutation order dated 31st May, 1989 opened in favour of the respondents claiming adverse possession by filing appeal under Section 64 of the Act 1954. After certain rounds of litigation, the Financial Commissioner set aside the order of mutation passed in favour of the respondents by Order dated 10th February, 1995 holding that the transfer was in contravention of Section 33 of the Act, 1954 and further ordered the land in dispute to be vested in Gaon Sabha.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. The Division Bench of the High Court returned a finding that once the notification dated 23rd April, 1982 has been published in exercise of power under Section 507(a) of the Act, 1957 which expressly urbanizes the subject land in question and brings within the scope and ambit of Act, 1957, it no more remains rural area thus, all proceedings under the Act, 1954 stand non est leaving the parties to agitate their claims/disputes before appropriate fora with a clarification that all the pleas in law shall remain available to the parties before the appropriate fora which may be adopted for redressal of grievance under judgment impugned dated 22nd November, 2012 which is a subject matter of challenge in appeal before us.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20. The factual matrix which has come on record is not disputed between the parties. The question of law that raised for consideration is that once the rural area is urbanized by issuance of notification under the Act 1957, what will be the effect to the provisions of the Act,</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">1954 in sequel thereto.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23. Section 1(2) of the Act, 1954 extends to the whole Union Territory of Delhi, but shall not apply to the areas notified in Section 1(2)(a) of the Act, 1954, i.e. such an area which are or may before the first day of November, 1956 be included in a Municipality or a notified area under the relevant Acts.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>25. The combined reading of the relevant provisions referred to hereinabove clearly indicates that the Act, 1954 will not cover such area as defined in the first instance which may or before the first day of November, 1956 be included in a Municipality. The ‘land’ which has been defined under Section 3(13) provides that except in sections 23 and 24, such of the land held or occupied for purpose connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming and further includes other categories which are part of land but at the same time, it does not include land occupied by building in belts or areas adjacent to Delhi town.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>26. ‘Delhi town’ has been defined under Section 3(5) of the Act which clearly defines that areas which immediately before the establishment of the Municipal Corporation of Delhi were included in the limits of Delhi Municipality. There is complete exclusion of the land occupied by buildings adjacent to Delhi town which falls before the establishment of Municipal Corporation of Delhi and is not a land covered for the purpose by deciding rights of the parties under tenure holder under Chapter II of the Act, 1954.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>27. At the same time, Section 150(3), (4) and (5) of the Act indicate that if the Gaon Sabha area ceases to be included in rural areas as defined in the Act, 1957 by virtue of notification under Section 507 of the Act, the Gaon Sabha shall thereupon stand dissolved or if a portion of Gaon Sabha area ceases to be included in rural areas as aforesaid, the jurisdiction of the Gaon Sabha for that area ceases in respect of that portion and for that portion stands dissolved or to that extent, the size of the Gaon Sabha stands reduced as a result of a portion ceasing to be included in rural area as aforesaid. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>30. Section 2(52) defines the ‘rural areas’ which demonstrates that the area of Delhi which immediately before the establishment of a Corporation, falls within the local limits of the District Board of Delhi, be considered to be the rural area but that shall not include such portion thereof which by virtue of notification under Section 507 declared to be urbanized and it ceases to be included under the term ‘rural areas’ and Section 2(61) defines ‘urban areas’ as the areas of Delhi which are not rural areas. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>31. To simplify it further, once there is a notification issued by the competent authority in exercise of power under Section 507(a) which is a special provision in reference to rural areas, such of the rural areas cease to be included therein upon issuance of the notification and shall thereafter include in and form part of the urban areas in terms of the notification. Sub­clause (b) and (c ) of Section 507 deals with the nature of grant of exemption or levy of taxes for such of the areas falling within the scope and ambit of the Act, 1957</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>33. At this stage, if we look into the Delhi Development Act, 1957(hereinafter being referred to as the “DDA Act”), it nowhere makes a distinction in the nature of land whether it is rural or urban, as the case may be. The DDA Act, 1957 is enacted with an object of development of Delhi according to sanctioned plan and for matters ancillary thereto. If we consider the term ‘development’ as defined under Section 2(e) of the DDA Act, it clearly notifies that such of the area which has been declared to be a development area under Section 12, after publication in the official gazette, shall be considered a development area within the purport of the Act and it is a complete code in itself for the purpose of disposal of land. The expression ‘land’ in Section 2(l) is in reference to the Land Acquisition Act, 1894</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>39. So far as the submission made in reference to the earlier judgment of the Division Bench of the High Court of Delhi which has not been looked into by the Division Bench under the impugned judgment in the case of Umed Singh(supra) is concerned, on principle, we are not in agreement with the view expressed by the High Court in Umed Singh(supra), at the same time, we would like to observe that the case was in reference to consolidation notification issued on 8th September, 1993, and what will be the effect of Consolidation and Prevention of Fragmentation Act, 1948, in that reference, the High Court examined the scope and ambit of the Act, 1957.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>40. Before we conclude, we may like to observe that the respondents purchased the subject land from Maman Singh (recorded Bhumidhar) by a registered sale deed dated 4th May, 1989 and mutation also, at one time, was opened in their names on 31st May, 1989. Later, they were compelled to file a civil suit in the year 1990 for taking over possession of the subject property in question. 41. It reveals from the record that after a few rounds of litigation, the Financial Commissioner set aside the order of mutation by Order dated 10th February, 1995, the matter later travelled to the Division Bench of the High Court of Delhi and by judgment dated 22nd November, 2012, it was held that once the rural area is urbanized by issuance of notification under Section 507(a) of the Act, 1957, it ceases to be governed by the provisions of Act, 1954.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>42. What persuaded this Court is that even after upholding the judgment of the Division Bench of the High Court dated 22nd November, 2012, it gives a fresh life to the respondents to go ahead in taking possession of the subject property despite the fact that registered sale deed dated 4th May, 1989 was executed in their favour by Maman Singh(Bhumidhar) but they are still deprived of possession and the defence of the appellants in counter is that they are in possession of the subject land by adverse possession. At the same time, this Court may also record that the registered sale deed dated 4th May, 1989 executed in favour of the respondents by Maman Singh (Bhumidhar) was never the subject matter of challenge and no such proceedings are pending in the Court of law.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>43. At this point of time, it reminds us that the civil suit filed at the instance of the respondents for taking possession of the subject land which is pending for the last 32 years has not started its journey as yet and this is called the travesty of injustice to a person who is indisputedly the title holder still unable to enjoy the property.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>44. In the given facts and circumstances, in exercise of our power under Article 142 of the Constitution and to do complete justice to the parties, we direct the appellants to hand over physical possession of the subject land free from all encumbrances to the respondents within a period of two months from the date of passing of this Order. If the appellants fail to hand over possession within the time stipulated, it will be open to the respondents to make an application to the concerned jurisdictional Judicial Magistrate and after obtaining necessary orders with assistance of the local administration may proceed for taking possession of the subject land. It goes without saying that the possession has to be handed over in terms of the registered sale deed dated 4th May, 1989 which has been executed by Maman Singh (Bhumidhar) in the names of the respective respondents.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>45. The pending civil suit in the above terms stands disposed of.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>46. We find no substance in the instant appeal. The same is hereby dismissed with the observations afore­stated. No costs. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>47. Pending application(s), if any, shall stand disposed of.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd8eab3263d51f966d87b4e8a837e8afe.jpeg', '78c0e1d2330fd856df19dc97d3e257ec.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-16', 1, '', '', '2023-03-15 13:50:45', '2023-03-16 12:17:22');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2797, 'WUmRGdrqOcMSUQROi3I7lJTVZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'RTE Act. Government has no power to conduct examinations of its own other than the regular examinations conducted by the schools. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Registered Unaided Private Schools Management Vs Union of Indian and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 1668 of 2023 decided on 10 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Pradeep Singh Yerur.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Common questions are involved in these batch of writ petitions. Hence, with consent of all parties, it is taken up together. The petitioners are unaided private school management association in three petitions and one petition is by the parent of the 5th standard student studying in a Private School questioning the circulars issued by the respondents. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2.<span style=\"white-space: pre;\">	</span>The petitioners have sought relief to quash the circular dated 12.12.2022 bearing No.E-870867-DPII-CPIOC7- 2(PLM)/3/2022, circular dated 13.12.2022 bearing No.E- 9951/DSERT/EVG/5,8 Tha.Va.Pa.Moulyankana/2022-23 and circular dated 04.01.2023 bearing No.DPI-CPIOSATS (E-)/6/2022-SATS respectively, as being violative of the mandatory procedure prescribed under Section 145 of the Karnataka Education Act, 1983 (for short ‘the Act’), Sections 16, 30 and 38(4) of the Right of Children to Free and Compulsory Education Act, 2009 (for short ‘the RTE’ Act) and for other legal infirmities urged in the pleadings and the grounds of the writ petitions.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The main contentions of the learned counsel appearing for the petitioners are that the students of 5th and 8th standard cannot be subjected to or forced to appear or take-up the Board examination by the respondent-State without following the mandatory due process of law. It is also contended that the circular which is questioned herein is in total violation and disregard to Section 145 of the Act and so also in violation of Section 16 of the RTE Act and in gross violation of Sections 30 and 38(4) of the RTE Act. It is the contention of the petitioners that the circular issued on 12.12.2022 clearly mandates holding of a public examination for 5th and  8th standard in Schools registered under the Act following the State syllabus, though it does not very specifically say so in the circular but on overall reading of the circular, the form and substance and the procedure laid down in the circular for conducting the examination or assessment is by way of an external process which is in total contravention to Sections 16, 30 and 38 of the RTE Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24.<span style=\"white-space:pre\">	</span>Having heard learned counsel Sri Anirudh A. Kulkarni appearing on behalf of learned counsel Sri Narayan Babu.D.N., for petitioner in W.P. No.1668/2023; learned counsel Sri S.Sudharsan, appearing on behalf of petitioner in W.P. No.1699/2023, learned counsel Sri A. Manjunath appearing on behalf of petitioner in W.P. No.3636/2023 and learned counsel Sri Dhananjay and Sri A. Velan, appearing on behalf of learned counsel Sri Pawan Shyam A., for petitioner in W.P. No.5017/2023 and Sri Dhyan Chinnappa, Additional Advocate General on behalf of learned Additional Government Advocate Smt. Promodini Kishan, for respondent – State, learned counsel Sri Nayanatara B.G, CGC for respondent No.1 Union of India, the point that arises for consideration before this Court is: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>“Whether the impugned circulars issued by the respondent-State are in accordance with the statute under which it is being implemented and Whether it would stand the test of law as per the prescribed statute?”<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>43.<span style=\"white-space:pre\">	</span>There is no dispute to the fact that the impugned circulars issued by the respondent – State is emanating from RTE Act. The mechanism so evolved by the State is in accordance with Section 16 of the RTE Act. It is also not in dispute that the entire mechanism framed by the State Government is in terms of Section 16 of the RTE Act. This Court has already extracted Section 16 of the RTE Act for easy and quick understanding.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>45.<span style=\"white-space:pre\">	</span>On careful perusal of the Act and the RTE Act, the competent authority is the State Government and the appropriate Government is also the State Government respectively. Section 16(1) of the RTE Act contemplates regular examination in the 5th and 8th standard of every academic year. Section 16(2) of the RTE Act contemplates that if a child fails in the examination, additional instructions shall be given and an opportunity would be granted for re- examination within a period of two months from the date of declaration of results. Section 16(3) of the RTE Act states that the appropriate Government may allow the Schools to hold back a child in 5th or in 8th standard, in such manner and subject to such condition as may be prescribed, if the student fails in the re-examination referred to in Sub-Section(2). Proviso to Sub-Section (3) of Section 16 of the RTE Act states that the appropriate Government may decide not to hold back a child in any class till the competition of elementary education. Section 16(4) of the RTE Act states that no child shall be expelled from the School till competition of elementary education. At this stage, it is also important to once again look into Section 30 of the RTE Act, which states that no child shall be required to pass any Board examination till completion of elementary education.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>47.<span style=\"white-space:pre\">	</span>Now the question before this Court is the impugned circulars that has been issued by the State which proposes to conduct an assessment of the students of 5th and 8th standard falling within the State syllabus from 2022-2023. The circulars also very clearly state that the KSEAB would conduct an examination, which would include preparation and distribution of question papers, conduct of examination of Schools, evaluation and assessment subject wise, School wise, cluster/Taluk – wise for the above said 5th and 8th standard students in all the Schools of State syllabus.    It is also stated in the said circular that the KSEAB is also entrusted with publishing of results and taking necessary action regarding analysis and strategy development. It is also stated in the said circular that in view of more than half of the academic year having been completed i.e. in 2022-2023, FA-1, FA-2, FA-3, FA-4 and SA-1, the Summative examination-2 would be conducted for 50 marks, out of which, 10 marks will be oral and 40 marks would be for written test and that the said 40 marks of the test would be converted to SA-2 as per the current overall passing criteria proportionately for 20 marks. It is also stated that a blue print has been prepared for conducting the examination with the model of question paper based on ‘Kalika Chetharike’, which has been issued to most of the Government Schools.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>49.<span style=\"white-space:pre\">	</span>Section 16(1) of the RTE Act is very clear with regard to conducting of regular examination.   It has drawn a clear distinction between a regular examination and a Board examination, which is found in Section 30 of the RTE Act. Section 30 also very clearly says that no child shall be required to pass any Board examination till completion of elementary education i.e. 1st to 8th standard. In ordinary parlance of layman’s understanding, it can be said without any iota of doubt that the students of 1st to 8th standard are not required to pass any Board examination till completion of elementary education, thereby the concept of Board examination is exempted.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>51.<span style=\"white-space:pre\">	</span>The fact remains that the entire process of the setting up of the question paper, conduct of examination, evaluation methodology and declaration of results are all monitored by the Board namely, KSEAB, which would mean that an external agency other than the respective Schools would be making an evaluation/assessment for SA-2 for the academic 2022-2023 for 50 marks, which would be proportionate to 20 marks. This would mean that the respective Schools would not have the liberty to assess or evaluate the students by themselves for 20 marks out of 100 marks. This is not contemplated under the RTE Act, on the basis of which, the present circular has emanated.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>57.<span style=\"white-space:pre\">	</span>The State Government has issued the impugned circulars to prescribe certain assessment and evaluation under the provisions of the RTE Act. No doubt, the appropriate Government being the State Government is empowered to make Rules and Regulations to carry out the provisions of the Act, but while doing so it will have to be necessarily follow the procedure prescribed under the Act. Section 38(4) of the Act states, ‘every rule or notification made by the State Government under this Act shall be laid, as soon as may be after it is made, before the State Legislatures’. Though it is the contention of the learned Additional Advocate General that the State has not decided to make any rule or notification and it is only formulating certain assessment and evaluations for the aid and benefit of the students coming under the State syllabus, therefore, the question of following the process and procedure of the Act more specifically Section 38 or any other provisions of the Act would not attract and that the arguments of the petitioners is flawed as State Government has not made any rule and accordingly, the question of public consultation, debate or discussion are unwarranted. I am afraid the contention of learned Additional Advocate General cannot be accepted for the reason that by virtue of the impugned circulars, there is a change which is brought by the State Government by way of assessment/evaluation and awarding of 20 marks for SA-2 for the academic year 2022-2023, which would invariably be assessed by the Board - KSEAB of the State. Thereby an external agency is coming into play for awarding of 20 marks for SA-2 for the students of 5th or 8th standard thereby out of 100 marks to be awarded the Schools are deprived of 20 marks which is taken away by the impugned circulars. This is not contemplated under Section 16 of the RTE Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>58.<span style=\"white-space:pre\">	</span>It is a cardinal principle of law that when the State Government wishes to bring about a Government order or Circulars, it has to be in consonance with the Act and the Rules. The said Circulars if any can only supplement the Act or Rules, but in no circumstances, supplant the Rules. In situation where such Circulars are issued to supplant the Rules which is in the guise of the Rules, the prescribed procedure and process have to be followed as contemplated under the Act. Section 38(4) of the RTE Act contemplates when Rules/notifications can be made by the appropriate Government, it will have to be laid as soon as may be after it is made before the State Legislature, which admittedly in the present case has not been done or followed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>62.<span style=\"white-space:pre\">	</span>Be that as it may, however laudable the object of the State be and good the intention be, the same will have to be done within the frame work of law and the procedure and process mandatorily prescribed in the Statute.   Merely because, it is the State implementing the impugned Circulars, it cannot blatantly violate the procedure mandatorily enshrined in the Statute books. The circulars as in the present case, which are contrary to the statutory provision has in effect no existence in law.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>69.<span style=\"white-space:pre\">	</span>Under the circumstances, I find sufficient force in the arguments put-forth by the respective counsel for petitioners as the new format of assessment / evaluation implemented by the State Government is contrary to Section 16 of the RTE Act and the procedure prescribed under the Act. The delegated legislation so assumed cannot run contrary to statutory provisions enacted by the legislature.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(1)<span style=\"white-space:pre\">	</span>The writ petitions are allowed;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'bd8b72db6e5d8bf8ae441380dbb73d63.JPG', '12b122846aacd6d28334c22b92ad4c80.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-16', 1, '', '', '2023-03-15 15:18:16', '2023-03-16 08:26:20'),
(2798, '0R1Rtm7hRxWDaySPGxTf9Bh2e', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for partition by daughters based on the amended Section 6 of the Hindu Succession Act. Properties sold prior to 20 December 2004 are not available for partition. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Chowdamma and others Vs Ravi and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Regular Second Appeal 502 of 2011 decided on 27 February 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Shivashankar Amarannavar.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">This appeal came to be admitted by framing the following substantial question of law:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\">“Whether the Judgment and Decree of both the Courts below are erroneous in misleading (misreading) or misapplying Section 6 of the Hindu Succession Act?”</span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\"><br></span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">2.<span style=\"white-space: pre;\">	</span>Appellant Nos. 1 and 2 claiming that they are the daughters of late Chowdappa filed a suit in O.S. No. 2130/2008 against respondent Nos. 1 to 6 for the relief of partition and separate possession of their 2/5th share in the suit schedule properties. There are two items of suit schedule properties; item No. 1 is land bearing survey No. 62/2 measuring 12-½ guntas situate at Addevishwanthapura village, Hesaraghatta Hobli, Yelahanka Taluk and item No. 2 is house property bearing No. 51 measuring East to West 22 feet and North to South 22 feet situated at Rajankunte Village, Hesaraghatta Hobli, Yelahanka Taluk, Bangalore North taluk. Respondent Nos.1 to 3 (defendant Nos. 1 to 3) are the brothers of appellant Nos. 1 and 2 (plaintiff Nos. 1 and 2). Item Nos. 1 and 2 of suit schedule properties fell to the share of late Chowdappa, father of appellants and respondent Nos.1 to 3. It is claimed that the said properties are ancestral properties. Said Chowdappa (father of appellants and respondent Nos.1 to 3) sold the same in favour of defendant No. 4 (respondent No. 4) – Munishamappa (who is the brother of Chowdappa) vide sale deed dated 14.04.1978 (Ex.P.8). Said respondent No. 4 (defendant No. 4 – Munishamappa) sold item No. 1 of suit schedule property along with his brother - defendant No. 5 in favour of defendant No. 6 (respondent No. 6) by sale deed dated 29.05.1996 (Ex.P.9). As per pleadings of the appellants the said sale deed at Ex.P.9 is executed by defendant Nos. 4 and 5, but, on perusal of Ex.P.9 it is clear that it is not executed by defendant No. 5 but it is executed by defendant No. 2 along with defendant No. 4.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">6.<span style=\"white-space: pre;\">	</span>Proviso to sub-section (1) of Section 6 of the Act confers the status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities. The right can be claimed by daughter born earlier with effect from 09.09.2005 with savings as provided in Section 6(1) of the Act as to dispossession or alienation, partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. Since the right in coparcenary is birth, it is not necessary that father of the coparcener should be living as on 09.09.2005.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">7.<span style=\"white-space: pre;\">	</span>Father of appellants and respondent Nos. 1 to 3 got item No. 1 of suit schedule properties in a partition between his brothers on the death of his father (Mallaiah). Appellant Nos.1 and 2 are daughters and respondent Nos.1 to 3 are his sons. Said Chowdappa (father of appellants and respondent Nos. 1 to 3) alienated item No.1 of suit schedule properties vide sale deed dated 14.04.1978 (Ex.P.8) in favour of defendant No. 4 – Munishamappa who is his brother. Said Munishamappa who is respondent No.4 along with respondent No. 2 alienated item No. 1 of suit schedule properties in favour of respondent No. 6 by sale deed dated 29.05.1996 (Ex.P.9). The above referred both alienations under Ex.P.8 and Ex.P.9 sale deeds are prior to 20.12.2004. The right of the appellants claiming share in suit schedule properties as per sub-Section (1) of Section 6 of the Act is subject to savings provided in proviso to Section 6(1) as to dispossession or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004. Said alienation of item No.1 of suit schedule properties had taken place   prior to 20.12.2004 i.e, Ex.P.8 sale deed dated 14.04.1978 and Ex.P.9 sale deed dated 29.05.1996. The Court at first instance and the Appellate Court applying the said proviso to sub-section (1) of Section 6 of the Act have rightly rejected the claim of the appellants seeking share in item No.1 of suit schedule properties.<br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">8.<span style=\"white-space: pre;\">	</span>The Hon’ble Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma reported in AIR 2020 SC 3717 has held that rights can be claimed by a daughter born earlier with effect from 09.09.2005 with savings as provided under Section 6(1) of the Act as to dispossession or alienation or partition or testamentary disposition which had taken place before the 20th day of December, 2004. Considering the above aspects the Court at first instance and the appellate Court have not misread or misapplied Section 6 of the Act. Hence, the above referred substantial question of law is answered in the negative and consequently, the second appeal is dismissed.</span></p>', '2486e28b2432c3d7e65fb773fcf5a383.JPG', '4d072e008b8ea12c2b4925b587d14382.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-16', 1, '', '', '2023-03-15 15:42:06', '2023-03-16 03:22:29'),
(2799, 'jjaLp0VP31MFrgTBf2a8OCadf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Second marriage solemnised before coming into force of the Hindu Marriage Act, 1955 is valid. Children born from such marriage are legitimate children for the purpose of succession. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pandurangappa Thr LRS and others Vs N.B. Dodda Rangappa Thr LRs and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R.F.A 1985 of 2006 decided on 28 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>It is the case of Dodda Rangappa that he was the only son of Patel Rangappa and his wife—Chikkamma. He stated that his father Patel Rangappa, without the knowledge and consent of Chikkamma, had married another lady called Sannamma, through whom, Patel Rangappa had four children namely defendants 1 to 4. He stated that this marriage was void and after the death of his mother—Chikkamma, his half-brothers were joint in possession of the suit schedule properties and Sanna Rangappa—the last son of Patel Rangappa through Sannamma was managing the entire affairs of the family. He stated that initially defendant No.1/Pandu Rangappa was managing the properties of the family, but subsequently, he was addicted to bad habits and this resulted in Dodda Rangappa demanding a share.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>He stated that his demand was however refused and despite many attempts in that regard, there was no partition. He stated that when he verified the revenue records in order to file a suit, he became aware that, all the revenue records pertaining to item Nos.1 to 13 had been transferred in favour of Sanna Rangappa and the said entries were without any basis. He, therefore, sought for declaration that he was entitled to half a share in the suit properties and also sought for partition and separate possession of this half share. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>Pandu Rangappa and his brothers entered appearance and contested the suit by filing written statement. They stated that item Nos.12 and 13 were purchased by Kuri Chikkappa in the name of their father—Patel Rangappa about fifty years ago and Patel Rangappa was only a nominal owner and they did not belong to their family. He also set up a plea that Dodda Rangappa’s father and his brothers had partitioned the properties under the registered partition deed and even in the partition deed, item Nos.12 and 13 had not been included. It was stated that the revenue entries were mutated in the name of Sanna Rangappa on the basis of inheritance, but, item Nos.12 and 13 continued to stand in the name of Patel Rangappa. It was stated that neither N.B.Dodda Rangappa nor his brothers had any right over item Nos.12 and 13.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>The Trial Court, on assessment of the evidence on record, came to the conclusion that Dodda Rangappa had proved that he and defendants had constituted a joint family and that suit item Nos.12 to 14 properties were also the joint family properties. It also held that Dodda Rangappa had proved that the defendants were the children born to his father out of a void marriage with Sannamma. As a consequence, the Trial Court held that Dodda Rangappa established that he was entitled to half a share in the suit properties.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25.<span style=\"white-space:pre\">	</span>Having heard the learned counsel for the parties, the points that arise for consideration in this appeal are as to whether the Trial Court was justified in decreeing the suit by allotting half share to Dodda Rangappa in all the suit schedule properties on the premise that he was born out of a valid marriage between his father and Chikkamma or in the alternative, whether the defendants, being the children born out of the second marriage of Patel Rangappa with Sannamma, were entitled to equal share in all the suit schedule properties.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>43.<span style=\"white-space:pre\">	</span>Thus, in law, a marriage can be annulled by a decree of nullity if it was a voidable marriage solemnised even before the 1955 Act came into force, while a marriage which was void cannot be declared as void if it had been solemnised before the 1955 Act had come into force. In essence, a marriage which was considered as void after the 1955 Act came into force would not be considered as void if it had been solemnised before the 1955 Act came into force. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>44.<span style=\"white-space:pre\">	</span>For the purpose of this case, it will have to be ascertained as to whether the plaintiff—Dodda Rangappa had established that the marriage of his father Patel Rangappa with Sannamma was void, because he had a living spouse—Chikkamma at that point in time. This is assuming, for the sake of argument, that the contention that there was a second marriage was true.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>45.<span style=\"white-space:pre\">	</span>It has to be stated here that Dodda Rangappa as stated above instituted the suit in the year 2002. He described himself as a sixty years old in the cause-title. This would mean that his father Patel Rangappa must have got married to Chikkamma prior to 1942. He also described defendant No.1—Pandu Rangappa as a fifty- two years old. This would also mean that Pandu Rangappa was born in 1950 and this would in turn mean that the second marriage of Patel Rangappa with Sannamma was also prior to 1950. It was thus the admitted case of Dodda Rangappa that the marriage between his father and Chikkamma and also the second marriage with Sannamma had occurred prior to the coming into force of the 1955 Act. If this is the admitted position, by virtue of the expression “after the commencement of this Act” in Section 11 of the Act, the question of considering the second marriage as void and stipulated in the 1955 Act would not arise at all.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>46.<span style=\"white-space:pre\">	</span>It is to be restated here that prior to the commencement of 1955 Act, there was no law prohibiting a Hindu male from having more than one wife and it is only by virtue of Section 5(i) of the 1955 Act, a statutory bar was created for a Hindu to contract a second marriage if s/he had a spouse living at the time of the second marriage. The consequence of this would be that the marriage of Patel Rangappa with Sannamma, even if it is accepted to be true, for the sake of argument, would not render the second marriage void and in law it would be a valid marriage.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>52.<span style=\"white-space:pre\">	</span>As noticed above, Section 11 of the Act relating to void marriages would apply only in respect of marriages which had been solemnised after the 1955 Act came into force and since in this case both the marriages had been contracted before the 1955 Act came into force, Section 16 would have no application at all.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>57.<span style=\"white-space:pre\">	</span>The substituted Section 16(1) of the Act starts with a non-obstante clause and declares that even if a marriage is declared as null and void under Section 11, any child of such marriage would be legitimate irrespective of whether such child had been born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976). It also declares that the child would be legitimate irrespective of whether a decree of nullity was granted or whether a marriage was declared to be void under the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>58.<span style=\"white-space:pre\">	</span>Thus, as already explained above, Section 11 of the Act relating to void marriages would be attracted only in respect of marriages solemnised after the commencement of the 1955 Act and therefore, this amendment of the year 1976 could also be of no consequence as far as the present case is concerned.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>59.<span style=\"white-space:pre\">	</span>Sub-section (3) of Section 16 of the Act is a reproduction of the originally enacted proviso to Section 16 of the Act. It declares that the deemed legitimacy of a child who was born out of the marriage which was void under Section 11 or voidable under Section 12 of the Act, would not entitle the child to make a claim in respect of the properties of any person other than its parents.   Since, in the present case, Section 16 of the Act would have no application by virtue of the fact that the condition stipulated was that the second marriage of Patel Rangappa was void, the question of Section 16 being attracted would never arise at all.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>60.<span style=\"white-space:pre\">	</span>It has to be noticed here that admittedly, it was the specific case of Dodda Rangappa that the second marriage of his father was void and therefore the question of considering it as being a voidable marriage as contemplated under Section 12 of the Act would not arise. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>61.<span style=\"white-space:pre\">	</span>As a result of the above discussion, it is clear that assuming Patel Rangappa had married twice, since both the marriages had been solemnised prior to 1955, they would have to be held as valid marriages and the children born out of such marriages would have to be considered as his legitimate children for the purpose of succession. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>62.<span style=\"white-space:pre\">	</span>In the light of the discussion above, the inescapable conclusion is that all the children of Patel Rangappa, whether born through his first wife— Chikkamma or the second wife—Sannamma, would be entitled to claim an equal share in all the properties left behind by Patel Rangappa.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>64.<span style=\"white-space:pre\">	</span>The plea of the defendants that Dodda Rangappa was actually the eldest son of Sannamma need not be considered since even if the plea of Dodda Rangappa that his father’s second marriage with Sannamma was void is accepted, even then, all his sons from both the marriages would be entitled to an equal share by virtue of the fact that both the marriages having been solemnised before the 1955 Act came into force would be valid marriages and cannot be considered as a void marriage. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>65.<span style=\"white-space:pre\">	</span>In the result, the suit of Dodda Rangappa had to be partly decreed holding that he would be entitled to only 1/6th share and not half a share, as granted by the Trial Court.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>66.<span style=\"white-space:pre\">	</span>As far as the argument that item Nos.12 to 14 were not the joint family properties but were the self-acquired properties of Patel Rangappa and that he was only a name-lender, the same would have no relevance, since it is admitted that the properties were purchased by Patel Rangappa under the sale deed dated 18.08.1951 and since he had purchased these properties in his name, all his children, on his death, would have an equal share. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>67.<span style=\"white-space:pre\">	</span>As far as item No.14 is concerned, i.e., the tractor trailer, admittedly, even according to the defendants, all of them had signed as guarantors / co-obligants and it is therefore clear that item No.14 was also considered as a joint family property. As a consequence, even in respect of this property, Dodda Rangappa would have 1/6th share and all the defendants would also have a 1/6th share each. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>68.<span style=\"white-space:pre\">	</span>Consequently, the appeal of Pandu Rangappa and others i.e., the defendants is allowed in part and it is held that both Dodda Rangappa and his half-brothers (defendants) would each be entitled to 1/6th share in all the suit schedule properties.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4920c8715d3bdd5f5cf0f4582b5752ec.JPG', '26c151ea0eac794e8560780433a248e8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-16', 1, '', '', '2023-03-15 16:12:59', '2023-03-16 10:28:40');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2800, 'Z8h0kabHgtepoprFNihL9kh08', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Dissolution of Company under the IBC will not exonerate liability of directors under Section 138 of the NI Act when proceedings under the NI Act had already commenced with the Magistrate taking cognizance. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ajay Kumar Radheyshyam Goenka Vs Tourism Finance Corporation of India Ltd.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 172 and 170 of 2023 decided on 15 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sanjay Kishan Kaul and Justice Abhay S. Oka and Justice J.B. Pardiwala. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. M/s Rainbow Papers Limited (company incorporated and registered\r\nunder the Companies Act, 1956), of which Ajay Kumar Radheyshyam\r\nGoenka, the Appellant before us, was the Promoter and Managing Director,\r\nsought loans from a public financial institution, Tourism Finance\r\nCorporation of India Limited, the Respondent before us, to fulfil its various <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">corporate requirements. The proposal of the company was considered by the\r\nRespondent and approval was granted for a Term Loan of Rs. 30.00 crores.\r\nIn pursuance to the approval, a Loan Agreement was executed on\r\n27.03.2012 in New Delhi.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. In order to satisfy its obligations under the Agreement, the Accused\r\ncompany issued post-dated cheque of Rs. 25,47,945/- bearing cheque\r\nnumber 090656 dated 15.02.2016, drawn on Indian Overseas Bank, Kalupur\r\nCircle Branch, Railway Pura, Ahmedabad, towards the payment of one of\r\nthe instalments. On the cheque being presented to the bankers of the\r\nRespondent i.e., HDFC Bank Limited, Nehru Place Branch, New Delhi, the\r\ncheque was returned vide Memo dated 07.04.2016 for the reason “Account\r\nClosed”.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. On 19.04.2016, a demand-cum-legal notice under Section 138 of\r\nNegotiable Instruments Act, 1881, (hereinafter referred to as ‘the NI Act’)\r\nwas issued on behalf of the Respondent calling upon the company as\r\nAccused no.1 and the Appellant herein as Accused no. 2 to settle the debt\r\nadvanced by way of corporate loan dated 27.03.2012. The Accused\r\nacknowledged their liability to pay the loan amount vide reply dated\r\n28.04.2016. The amount was not paid and, thus, on 16.05.2016, Criminal\r\nComplaint No. 632982/2016 was filed in the Court of Chief Metropolitan <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Magistrate, Saket Courts, New Delhi, under Section 190 of the Code of\r\nCriminal Procedure, 1973, read with Section 1381\r\n, Section 1412\r\n and Section\r\n1423\r\n of the NI Act. The complaint was signed and verified by Mr. N.\r\nRamachandran, Deputy General Manager (Law) of the Respondent\r\ncompany. An endeavor for mediation was made but was not successful and,\r\nthus, the next date was scheduled before the Magistrate for 15.01.2018. In\r\nthe meantime, a development, which took place, was that in 2017 M/s\r\nNeeraj Paper Agencies Limited, styling itself as ‘Operational Creditor’, filed\r\nan application under Section 9 of the Insolvency and Bankruptcy Code,\r\n2016 (hereinafter referred to as ‘IBC’) read with Rule 6 of Insolvency and\r\nBankruptcy (Application to Adjudicating Authority) Rules, 2016,\r\n(hereinafter referred to as ‘IB Rules, 2016’) with the request to initiate\r\nCorporate Insolvency Resolution Process against the Accused company,\r\ntreating it as the \'Corporate Debtor\'. The National Company Law Tribunal\r\nvide order dated 12.09.2017 admitted the aforesaid insolvency application.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. The issue whether the respondent is a Secured Financial Creditor\r\nor an Unsecured Financial Creditor within the meaning of the said Code\r\nis not something we can deal with as that is the matter of the proceedings\r\nunder the said Code or any appeal preferred therefrom. The only issue\r\nwith which we are concerned with is whether during the pendency of the\r\nproceedings under the said Code which have been admitted, the present\r\nproceedings under the N.I. Act can continue simultaneously or not. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. We have no hesitation in coming to the conclusion that the scope\r\nof nature of proceedings under the two Acts and quite different and\r\nwould not intercede each other. In fact, a bare reading of Section 14 of\r\nthe IBC would make it clear that the nature of proceedings which have to\r\nbe kept in abeyance do not include criminal proceedings, which is the\r\nnature of proceedings under Section 138 of the N.I. Act. We are unable\r\nto appreciate the plea of the learned counsel for the Appellant that\r\nbecause Section 138 of the N.I. Act proceedings arise from a default in\r\nfinancial debt, the proceedings under Section 138 should be taken as akin <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to civil proceedings rather than criminal proceedings. We cannot lose\r\nsight of the fact that Section 138 of the N.I. Act are not recovery\r\nproceedings. They are penal in character. A person may face\r\nimprisonment or fine or both under Section 138 of the N.I. Act. It is not\r\na recovery of the amount with interest as a debt recovery proceedings\r\nwould be. They are not akin to suit proceedings.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. It cannot be said that the process under the IBC whether under\r\nSection 31 or Sections 38 to 41 which can extinguish the debt would ipso\r\nfacto apply to the extinguishment of the criminal proceedings. No doubt\r\nin terms of the Scheme under the IBC there are sacrifices to be made by\r\nparties to settle the debts, the company being liquidated or revitalized.\r\nThe Appellant before us has been roped in as a signatory of the cheque as\r\nwell as the Promoter and Managing Director of the Accused company,\r\nwhich availed of the loan. The loan agreement was also signed by him on\r\nbehalf of the company. What the Appellant seeks is escape out of\r\ncriminal liability having defaulted in payment of the amount at a very\r\nearly stage of the loan. In fact, the loan account itself was closed. So\r\nmuch for the bona fides of the Appellant.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. We are unable to accept the plea that if proceedings against the\r\ncompany come to an end then the Appellant as the Managing Director\r\ncannot be proceeded against. We are unable to accept the plea that\r\nSection 138 of the N.I. Act proceedings are primarily compensatory in\r\nnature and that the punitive element is incorporated only at enforcing the\r\ncompensatory proceedings. The criminal liability and the fines are built\r\non the principle of not honouring a negotiable instrument, which affects\r\ntrade. This is apart from the principle of financial liability per se. To say\r\nthat under a scheme which may be approved, a part amount will be\r\nrecovered or if there is no scheme a person may stand in a queue to\r\nrecover debt would absolve the consequences under Section 138 of the\r\nN.I. Act, is unacceptable.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. We are, thus, conclusively of the view that the impugned order\r\ntakes the correct view in law and cannot be assailed before us.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. The appeals are accordingly dismissed but without costs before us\r\non account of what we have recorded in para 14.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>1. I have carefully, gone through the perspicuous opinion of my esteemed brother\r\nSanjay Kishan Kaul, J. I am entirely in agreement with the discussion contained in the\r\nsaid judgment on all the cardinal issues that have arisen for consideration in these\r\nproceedings. At the same time, having regard to the fact that the issues involved are of\r\nseminal importance, I am also inclined to pen down my thoughts. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. For the sake of convenience, the Criminal Appeal No. 170 of 2023 (@ SLP\r\n(Crl) No. 417 of 2020) is treated as the lead matter.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. Having heard the learned counsel appearing for the parties and having gone <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">through the materials on record, the seminal question of law that falls for the\r\nconsideration of this Court may be formulated as under:\r\nWhether in light of:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n(i) the complainant having participated in the proceedings under the IBC,\r\n2016 by putting forward its claim and consenting to accept some share as\r\na creditor; coupled with\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(ii) the approval of the resolution plan under Section 31 of the IBC, 2016;\r\nthe signatory/director in charge of the day-to-day affairs would stand\r\ndischarged/relieved from the penal liability under Section 138 of the NI\r\nAct?</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. The offence under Section 138 of the NI Act, is committed, after the conditions\r\nset out therein are fulfilled. Thereafter, the payee of the cheque has the option of\r\nprosecuting the drawer of the cheque by instituting a complaint under Section 200 of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) before the jurisdictional\r\ncriminal court. After cognizance of the offence is taken, the criminal court is seized of\r\nthe matter. The case will have to be disposed of in terms of the provisions set out in the\r\nCrPC. If the complainant fails to turn up on any hearing date, the Magistrate can\r\ninvoke Section 256 of the CrPC and acquit the accused. Under Section 257 of the\r\nCrPC, the complaint can be withdrawn at any point of time before the final order is\r\npassed. Under Section 147 of the NI Act the offence can be compounded. The case\r\nmay end in acquittal or conviction at the conclusion of the trial.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>47. Thus, I am of the view that by operation of the provisions of the IBC, the criminal\r\nprosecution initiated against the natural persons under Section 138 read with 141 of the\r\nNI Act read with Section 200 of the CrPC would not stand terminated.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>48. In JIK Industries Limited and Others v. Amarlal V. Jumani and Another\r\nreported in (2012) 3 SCC 255, this Court held that the sanction of a scheme under Section <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">391 of the Companies Act, 1956 will not lead to any automatic compounding of offence\r\nunder Section 138 of the NI Act without the consent of the complainant. Neither Section\r\n14 nor Section 31 of the IBC can produce such a result. The binding effect contemplated\r\nby Section 31 of the IBC is in respect of the assets and management of the corporate\r\ndebtor. No clause in the resolution plan even if accepted by the adjudicating\r\nauthority/appellate tribunal can take away the power and jurisdiction of the criminal court\r\nto conduct and dispose of the proceedings before it in accordance with the provisions of\r\nthe CrPC.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>50. It is equally true that once the corporate debtor comes under the resolution\r\nprocess, its erstwhile managing director(s) cannot continue to represent the company.\r\nSection 305(2) of the CrPC states that where a corporation is the accused person or one\r\nof the accused persons in an inquiry or trial, it may appoint a representative for the\r\npurpose of the inquiry or trial and such appointment need not be under the seal of the\r\ncorporation. Therefore, it is only the Resolution Professional who can represent the\r\naccused company during the pendency of the proceedings under IBC. After the\r\nproceedings are over, either the corporate entity may be dissolved or it can be taken over\r\nby a new management in which event the company will continue to exist. When a new\r\nmanagement takes over, it will have to make arrangements for representing the company.\r\nIf the company is dissolved as a result of the resolution process, obviously proceedings\r\nagainst it will have to be terminated. But even then, its erstwhile directors may not be\r\nable to take advantage of the situation. This is because, this Court in Aneeta\r\nHada (supra), even while overruling its decision in Anil Hada v. Indian Acrylic Ltd.\r\nreported in (2000) 1 SCC 1, as not laying down the correct law in so far as Anil Hada\r\n(supra) states that the director or any other officer can be prosecuted without\r\nimpleadment of the company, proceeded to hold that the matter would stand on a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">different footing where there is some legal impediment as the doctrine of lex non cogit\r\nad impossibilia gets attracted. It was specifically observed that the decision in Anil\r\nHada (supra) is overruled with the qualifier as stated in para 51. Considering the same,\r\nthe ratio of the decision of this Court in Ajit Balse (supra) upon which strong reliance is\r\nplaced on behalf of the appellant is of no avail.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>52. Thus, where the proceedings under Section 138 of the NI Act had already\r\ncommenced and during the pendency the plan is approved or the company gets\r\ndissolved, the directors and the other accused cannot escape from their liability by citing\r\nits dissolution. What is dissolved is only the company, not the personal penal liability of\r\nthe accused covered under Section 141 of the NI Act. They will have to continue to face\r\nthe prosecution in view of the law laid down in Aneeta Hada (supra). Where the\r\ncompany continues to remain even at the end of the resolution process, the only\r\nconsequence is that the erstwhile directors can no longer represent it.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>64. I have referred to Section 31 of the IBC and Ebix Singapore (supra) to explain\r\nthat the resolution plan is binding on the creditors who have not consented to it. This is\r\na very important factor, which indicates that the complainant under Section 138 NI Act\r\nis bound by the approved resolution plan, even though he may not have consented to it\r\n(if he is part of the CoC) or likes it. If he is not a part of the CoC, then also it is binding on him.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n65. Section 30(2)(e) of the IBC requires the resolution professional to approve\r\nthe resolution plan, only if the same does not violate any of the provisions of the\r\n law for the time being in force. Thus, the clauses of the resolution plan cannot control the Enactment/Rules in force. It is the resolution plan which has to comply with the\r\nlaws in force. In the case on hand, any clause giving any effect to the corporate debtor\r\nunder Section 138 NI Act proceedings, cannot be used to protect the signatories/direc-<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">tors under Section 138/141 NI Act.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>75. As per Section 138 of the NI Act, when the cheque was dishonoured and a statutory notice demanding the cheque amount was issued, the accused shall pay the cheque\r\namount within 15 days from the date of receipt of the said notice. The moment the said\r\n15 days expired, the cause of action arises. In other words, the offence under Section\r\n138 of the NI Act is complete. Once the cause of action arose for the offence committed, the complainant has to approach the criminal court within one month to take penal\r\naction under Section 138 of the NI Act. To put it clearly, the complainant approaches the\r\ncriminal court not for recovery of the legally enforceable debt, but for taking penal action under Section 138 of the NI Act for the offence already committed by the accused\r\nby not making the payment of the cheque amount despite the receipt of the statutory notice. The only question before the criminal court is whether the cheque issued by the accused towards the discharge of his liability was dishonoured and despite the service of\r\ndemand notice, whether he had not paid the amount. There is no bar contained in any of\r\nthe provisions of the IBC, and the NI Act from approaching the criminal court to seek\r\npenal action under Section 138 of the NI Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>85. Thus, the upshot of all the decisions referred to above is where the proceedings\r\nunder Section 138 of the NI Act had already commenced with the Magistrate taking\r\ncognizance upon the complaint and during the pendency, the company gets dissolved,\r\nthe signatories/directors cannot escape from their penal liability under Section 138 of\r\nthe NI Act by citing its dissolution. What is dissolved, is only the company, not the personal penal liability of the accused covered under Section 141 of the NI Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>86. I may draw my final conclusions as under:\r\n(a) After passing of the resolution plan under Section 31 of the IBC by the adjudicating authority & in the light of the provisions of Section 32A of the IBC, the\r\ncriminal proceedings under Section 138 of the NI Act will stand terminated\r\nonly in relation to the corporate debtor if the same is taken over by a new management.\r\n(b) Section 138 proceedings in relation to the signatories/directors who are\r\nliable/covered by the two provisos to Section 32A(1) will continue in\r\naccordance with law.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>87. In view of the aforesaid discussion, the appeal fails and is hereby dismissed.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>88. The connected appeals also fail and are hereby dismissed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n89. Pending application(s), if any, shall stand disposed of.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5f9a2a39a9e44ea043523bf9c07ed358.jpeg', '02377f37bb5fe98baac907b530f9b1c2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-17', 1, '', '', '2023-03-16 13:45:16', '2023-03-17 09:08:33'),
(2801, '1Gsp3yu2p9Oki7haHwebZSsBk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Labour Court awarding partial backwages for proven unauthorised absence of workman for a long period runs contrary to the principle of ‘no work, no pay’ and cannot be justified under Section 11-A of the I D Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Divisional Controller and Disciplinary Authority Management of KSRTC Vs C Shahidhar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 40163 of 2018 decided on 3 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Respondent - Workman having remained unauthorisedly absent was dismissed from service. Against which, the petitioner - Workman raised a dispute under Section 10(4-A) of the Industrial Disputes Act, 1947 (for short \'the Act\').</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 2.<span style=\"white-space: pre;\">	</span>The domestic enquiry held against the workman was held to be fair and proper. The workman examined himself as W.W.1 and marked documents at Exs. W1 to W5 and the Corporation examined the Establishment Supervisor as M.W.2 and marked documents at Exs. M20 to M23. The Labour Court after examining the evidence on record, held that the charge against the petitioner is proved. However, in exercise of power under Section 11-A of the Act reduced the quantum of punishment. Against which order, the present petition is filed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space:pre\">	</span>The unauthorised absence of the workman was for a period of 5½ months. The Labour Court in exercise of power under Section 11-A of the Act has modified the order of dismissal by directing the Corporation to reinstate the workman into service with all consequential benefits by withholding three annual increments with cumulative effect and with 30% backwages from the date of dismissal till the date of reinstatement. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>In my view, the impugned award insofar as it relates to granting 30% backwages is not sustainable, applying the principle of \'no work, no pay\'.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> a.<span style=\"white-space:pre\">	</span>The writ petition is allowed in part. </b><br></font></p>', '432d23ee473273db8c7d7504bd4f1f79.jpeg', '0bdb7b9e80a32be763b03a0fc028ed43.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-17', 1, '', '', '2023-03-16 15:19:24', '2023-03-17 10:11:26'),
(2802, 'aapvQf1KsaaXNlSoQholtQJCY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Matka and OC gambling fall under Section 78(3) of the Karnataka Police Act which are non cognizable offences. Without seeking permission of the Magistrate under Section 155(2) of Cr.P.C, the police have no authority to register FIR and file the charge ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sandeep S.C. Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 1529 of 2023 decided on 24 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Natarajan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space: pre;\">	</span>This petition is filed by accused No.2 under Section 482 of Cr.P.C., for quashing the criminal proceedings in C.C.No.29/2022 arising out of Crime No.361/2021 for the offences punishable under Section 78(3) of the Karnataka Police Act, 1963.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>The case of the petitioner is that the complainant Police registered a suo moto case against the petitioner and registered an F.I.R for the offence under Section 78(3) of the Karnataka Police Act for playing the OC Matka and filed the charge sheet which is under challenge.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>Learned counsel submits that the police without obtaining any permission under Section 155(2) of Cr.P.C directly registered the F.I.R which is not permissible under law and he has relied upon the judgment of the Co- ordinate Bench in the case of Vaggeppa Gurulinga Jangaligi (Jangalagi) vs. The State of Karnataka, Through PSI, Kagwad Police Station, Belagavi reported in ILR 2020 KAR 630, wherein it is held that in the case under Section 155(2) of Cr.P.C, the informant shall approach the learned Magistrate for obtaining permission for registering the F.I.R., thereafter, the police is required to investigate the matter and file the charge sheet.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space:pre\">	</span>The first information itself reveals that the police recording that Matka and OC, gambling was played by the accused, directly registered the FIR on 27.01.2021 and subsequently filed the charge sheet. Section 78(3) of the Karnataka Police Act is non cognizable offence and without seeking permission of the learned Magistrate under Section 155(2) of Cr.P.C, the police have no authority to register the FIR and file the charge sheet. There is gross violation of the procedure by the police. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>Such being the case, the criminal proceedings against this petitioner is un-sustainable in the law. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>Accordingly, this petition is allowed and the criminal proceedings against this petitioner is hereby quashed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c41a3ab8ac3ce59d97097cd877894da1.JPG', '9bbbae9aecdc7d7a934830ec9ff57815.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-20', 1, '', '', '2023-03-16 15:32:01', '2023-03-20 12:33:20'),
(2803, 'W9VCtfh2fFoFiwsGSCew2i1KR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Plea of adverse possession in the written statement and the plea of ownership based on grant in the oral evidence run contrary to each other thus disproving both the claims. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bhagyamma Vs Shivakumar and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 68 of 2014 decided on 27 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Shivashankar Amarannavar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This appeal came to be admitted by framing the following substantial question of law:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> “Whether the impugned judgment and decree are perverse for not considering the material evidence on record?”</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The respondents (plaintiffs) filed a suit in O.S.No.340/2004 against the appellant (defendant) seeking declaration that they are the owners of the schedule property and also sought possession of the same. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>The respondents purchased the schedule property on the basis of sale deed (Ex.P1) dated 19.12.1966. The respondents(plaintiffs) pleaded that they are the owners of the suit schedule property and one Gangamma, the mother of appellant(defendant) was residing as a tenant under the father of the respondent namely R.C. Bhadraiah on a rent of Rs.10/- per month and the tenancy was oral.   The said Bhadraiah was collecting the rent of suit schedule property and after his death, mother of respondents namely Chudamuniyamma was collecting the rent and after her death, the respondents (plaintiffs) are collecting the rent. The appellant (defendant) subsequently refused to pay rent and on the basis of fraudulent entry in the revenue records, she claims that she is the owner of suit schedule property.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>The appellant (defendant) in her written statement contended that she is in possession of suit schedule property since 12 years from 1974 with the knowledge of father of respondents (plaintiffs) and thereafter to the knowledge of the respondents (plaintiffs) continuously from 1974.   As such, she claims the title of suit schedule property by way of adverse possession. She pleaded that she entered into suit schedule property and at that time, there was dilapidated tiles roof structure and she got it repaired to make it fit for dwelling and thereafter put up another structure of hollow bricks.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>The Court at first instance taking into consideration the contrary stand taken by the appellant/defendant that she claiming the property based on the allotment of the said property in her mother’s name has held that the appellant/defendant has failed to prove her adverse possession over the suit schedule property and decreed the suit of the respondents (plaintiffs).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>The very claim of the appellant (defendant) is that the property is allotted to her mother by the Government and she is claiming the title to that property by virtue of said allotment, which destroys her defence taken in the written statement. In the written statement, she has taken up the defence of adverse possession.   As she has taken the defence of adverse possession, she has admitted the title of the respondents (plaintiffs) over the suit schedule property. To claim the property by adverse possession, the appellant (defendant) has to first admit the title of the respondents (plaintiffs) and secondly to prove his or her possession for the statutory period of 12 years and the possession is adverse to the owner of the property i.e. animus.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>This Court in the case of Danappa Revappa Kolli vs Gurupadappa Mallappa Pattanashetti reported in ILR 1990 KAR 610 has held as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“xxxx apart from actual and continuous possession which are among other ingredients of adverse possession there should be necessary animus on the part of the person who intends to perfect his title by adverse possession. A person who under the bonafide belief thinks that the property belongs to him and as such he has been in possession, such possession cannot at all be adverse possession because it lacks necessary animus for perfecting title by adverse possession xxxx” </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>The suit schedule property is standing in the name of the appellant (defendant) in panchayath records, she obtained license and constructed a shed in the suit schedule property, her possession cannot at all be adverse possession because it lacks necessary animus for perfecting title by adverse possession. Therefore, both the Courts after considering the material evidence on records, have passed the judgment and decree, decreeing the suit of the respondents (plaintiffs).  There is no perversity in the reasoning of both the Courts. Hence, the substantial question of law is answered in negative. Accordingly, the appeal is dismissed with costs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8da8d8907921ec23470499f1cf0a0a32.JPG', '28913a3cb623830a306c92a0347ff109.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-17', 1, '', '', '2023-03-16 15:49:25', '2023-03-17 03:22:26');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2804, 'fZuzUP23nmcktNYJR9i5TABXv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Rash and negligent driving resulting in death. Leniency can be shown on the sentence that is imposed on the accused in the event if the family members of the deceased receive the compensation from the accused. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chandrashekar Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.R.P 280 of 2014 decided on 28 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Brief facts of the case as revealed from the records that may be necessary for the purpose of disposal of this petition are, on 22.06.2011 at about 8.45 p.m. within the jurisdiction of Malleshwaram Traffic Police Station, the petitioner who was driving his motor cycle bearing registration No.KA-02-EV-3084 in a rash and negligent manner dashed against the Active Honda bearing registration No.KA-05-EN- 8800, in which deceased Srivatan was riding and caused the accident. In the said accident, the deceased had sustained grievous injuries on his head and other parts of the body and subsequently, succumbed to the said injuries. On the basis of the complaint lodged by PW-2, Crime No.71/2011 was registered against the petitioner for the offences punishable under Sections 279, 304-A IPC read with Section 134(b) & 187 of the Motor Vehicles Act. The police after completing the investigation had filed charge sheet against the petitioner for the aforesaid offences. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>After service of summons in the said proceedings, the petitioner had appeared before the Trial Court and claimed to be tried. The prosecution in order to prove its case, had examined eight witnesses as PWs-1 to 8 and got marked 10 documents as Exs.P-1 to P-10. The petitioner during the course of his statement under Section 313 Cr.PC, had denied the incriminating circumstances that was available against him on record. However, he did not choose to lead any evidence nor any documents were marked in support of his defence. The Trial Court, thereafter, heard the arguments on both sides and by judgment and order dated 28.01.2013 had convicted the petitioner for the offences under Sections 279 & 304-A IPC and sentenced him to pay fine of Rs.1,000/- for the offence under Section 279 IPC and in default to undergo simple imprisonment for 30 days. For the offence under Section 304-A IPC, the Trial Court sentenced the petitioner to undergo simple imprisonment for a period of six months and pay fine of Rs.5,000/-. The appeal filed by the petitioner against the said judgment and order of conviction and  sentence in Crl.A.No.101/2013 was dismissed by the Appellate Court by its judgment and order dated 17.03.2014. It is under these circumstances, the petitioner is before this Court in this revision petition.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>The offence under Section 304-A IPC is a non- compoundable offence. The only question that may be considered in this revision petition would be having regard to the supervening circumstances brought on record, wherein the son of the deceased has come forward to file an affidavit stating that he is ready to accept the compensation amount from the petitioner and he has no objection for acquitting the petitioner, whether interference can be made in the quantum of sentence awarded to the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>The aforesaid question was considered by the Hon\'ble Supreme Court in the case of MANISH JALAN VS STATE OF KARNATAKA - (2008)8 SCC 225, and it has been held that leniency can be shown on the sentence that is imposed on the accused in the event if the family members of the deceased come forward to receive the compensation. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>The accident in the present case is of the year 2011. The allegation against the petitioner is that he was driving the offending scooter in a rash and negligent manner at the time of accident and there is no allegation against the petitioner that he was under the influence of liquor or any other substance impairing his driving skills at the time of the accident. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>In the background of the law laid down in Manish Jalan\'s case supra and also taking into consideration the facts and circumstances of the case, I am of the considered view that it is a fit case for reducing the sentence imposed on the petitioner by the courts below and the sentence of imprisonment imposed on the petitioner shall be reduced till the raising of the court and in addition to that, he shall be directed to pay fine as ordered by the Trial Court. The son of deceased Srivatan is present before the Court and has acknowledged the receipt of the amount of Rs.70,000/- from the petitioner as compensation. Under the circumstances, I proceed to pass the following order: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>The revision petition is allowed in part. The judgment and order of conviction passed by the courts below convicting the petitioner for the offences under Sections 279 & 304-A IPC is maintained. However, the sentence of imprisonment is reduced till the raising of the court. The imposition of fine by the Trial Court is also maintained.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '629a0579765c0eb173790de28e55fa0d.jpeg', '1ce7335cbe55f800e6a332436339f8aa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-18', 1, '', '', '2023-03-16 16:10:09', '2023-03-18 03:22:13'),
(2805, 'C3m2eGRHuJVlBw8lUbKJ4k4c3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Amended Section 6 of the Hindu Succession Act applies even to woman who died before 2005. Legal representatives are entitled for share in the ancestral property. Karnataka High Court.', '<p><b>Rangashamaiah by lrs vs Rangahanumaiah by lrs<br>Regular Second Appeal 1171 of 2015 decided on 20 January 2022<br>Justice N.S. Sanjay Gowda</b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11.<span style=\"white-space: pre;\">	</span>In Vineeta Sharma’s case, the Amendment made to Section 6 of the Hindu Succession Act, 1956 was elaborately considered. The Apex Court after considering the entire case law and after interpreting the amended provision, laid down five propositions.</b></span></p><p><b>12.<span style=\"white-space: pre;\">	</span>Firstly, it was declared that the provisions contained in the substituted Section 6 of the Hindu Succession Act,<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1956, conferred the status of a coparcener on the&nbsp; daughter born before or after the amendment, in the same manner as a son and with same rights and liabilities.</span></b></p><p><b>13.<span style=\"white-space: pre;\">	</span>The second proposition was that coparcenary rights could be claimed by the daughter born earlier to the amendment, however, with effect from 09.09.2005, subject to the condition that there was no disposition or alienation, partition or testamentary disposition having taken place before 20th day of December, 2004.</b></p><p><b>14.<span style=\"white-space: pre;\">	</span>Thirdly, it was also declared that since, the right in the coparcenary is by birth, it is not necessary for the father coparcener to be alive as on 09.09.2005.</b></p><p><b>15.<span style=\"white-space: pre;\">	</span>Fourthly, it was also declared that the statutory fiction of partition created by the Proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition on disruption of the coparcenary.</b></p><p><b>16.<span style=\"white-space: pre;\">	</span>It was stated that the fiction was only for the purpose of ascertaining the share of the deceased coparcener when he was survived by a female heir of Class-I, as specified in the Schedule to the Act of 1956. It was made clear that the provisions of the substituted Section 6 of the Hindu Succession Act, 1956 are required to be given full effect. Notwithstanding that a preliminary decree has been passed and the daughters are required to be given a share in coparcenary equal to that of a son.</b></p><p><b>17.<span style=\"white-space: pre;\">	</span>It was finally stated that normally a plea of oral partition cannot be accepted and only in exceptional cases a plea of oral partition could be entertained only if the same was supported by a public document and is evinced in the same manner as it had been effected by a decree of a Court.</b></p><p><b>18.<span style=\"white-space: pre;\">	</span>It is therefore clear that in Vineeta Sharma’s case, it has been clearly held that the substituted Section 6 of the Hindu Succession Act, 1956, conferred the status of a coparcener on the daughter, whether she was born before&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">or after the Amendment, in the same manner as a son and in the same rights and liabilities.</span></b></p><p><b>19.<span style=\"white-space: pre;\">	</span>Once the daughter is conferred the status of a coparcener and acquires a right by birth, this acquisition of a right by birth cannot be deprived by her death whether it is either before or prior to the Amendment.</b></p><p><b>20.<span style=\"white-space: pre;\">	</span>The creation of a coparcenary right is by birth and creates a right in the female by virtue of her birth in the family. Her death in the family, either before or after the Amendment, will have no effect on her status as a coparcener. Once she is born in a family she becomes a coparcener by operation of law and this status is definite and perennial. The death of a daughter, whether it occurs before the amendment to the Act or after the amendment to the Act, would make absolutely no difference to her status as a coparcener.</b></p><p><b>21.<span style=\"white-space: pre;\">	</span>It is to be stated here that the substituted provision also makes it clear that the daughter becomes a&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">coparcener in the same manner as that of a son and would also be subject to the same rights and liabilities of a son. Under the provisions of the Act, if the son in a coparcenary were to die, his children would be entitled to stake a claim in the share of their father. Similarly, by virtue of the fact that the same right has been conferred under the&nbsp; amended provisions of the Act on a daughter, the legal heirs of the deceased daughter would also be entitled to succeed to the share of their mother.</span></b></p><p><b>22.<span style=\"white-space: pre;\">	</span>The argument that, in Vineeta Sharma’s case, the question of the daughter being alive as on the date of the Amendment was not considered and it is necessary for the daughter to be alive cannot be accepted. The Supreme Court has in unequivocal terms held that a daughter by virtue of her birth in the family becomes a coparcener. Once, it is held that a daughter becomes coparcener by&nbsp; her birth, the said status of coparcener can never be lost. The death of such a coparcener, whether it is either before or after herb birth or death, the amendment to the Act,&nbsp;&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">would have absolutely no relevance to her status as a coparcener.</span></b></p><p><b>23.<span style=\"white-space: pre;\">	</span>I am therefore of the view that there is no substantial question of law arising for consideration in this second appeal and the same is accordingly dismissed.</b></p>', '119cacec946940eb3ed2503ae7993e9f.jpeg', 'f793adcfe0ef3f4c1b36d7710ee8d61a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-17', 1, '', '', '2023-03-17 11:55:12', '2023-03-17 11:55:12'),
(2809, 'hM4Hiu7yQQd7X6YY1mb4LrHaD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Foreign citizen pretending to be Indian citizen to avail educational benefits is reprehensible. Karnataka High Court orders issuance of exit permit subject to payment fee payable by NRI for the entire course. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bhanu C. Ramachandran Vs The Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 24609 of 2021 decided on 16 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is before this Court seeking a direction by issuance of a writ in the nature of mandamus directing the 1st and 3rd respondents/Union of India and the Bureau of Immigration to issue exit permit to the petitioner and has further sought a writ in the nature of prohibition restraining the respondents from initiating any action against the petitioner.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space:pre\">	</span>Shorn of unnecessary details, the facts in brief, are as follows:- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is born to one Sri N.Ramachandran and Smt. Nagamani Ramachandran both of whom were citizens of India and residents of United States of America (‘USA’). The petitioner was born on 05-02-1997 in Nashville, Tennessee, USA. On the birth of the petitioner, the parents of the petitioner registered her birth before the Indian Embassy in USA. Later, the petitioner was also issued a passport of USA. On the strength of the said passport which was valid till 12-09-2004, the petitioner enters India on a tourist Visa on 23-06-2003, at which point in time, the petitioner was aged 6 years and a minor. She was admitted to the Primary School and in due course she completes her education up to 12th standard or the Pre-University. On 05.02.2015 the petitioner attains the age of 18 years and on 30.03.2015 finding herself eligible to take the Common Entrance Test, 2015 (‘CET’) which was being conducted by the 4th respondent/Karnataka Examinations Authority, applies, participates by declaring her nationality to be an Indian and secures 571st rank and was allotted medical seat in the Mandya Institute of Medical Sciences under the quota reserved for candidates sponsored by Government. The petitioner completes her education i.e., MBBS.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>The petitioner did not renounce her citizenship or the nationality of USA after becoming a major. She applies for a fresh passport with the US Consulate General which accepts the application of the petitioner and grants a passport of USA to be valid till 16-03-2022. After acquisition of the said passport on 17-03-2021, the petitioner files an application before the Bureau of Immigration for grant of exit permit. Refusal of grant of exit permit to the petitioner to pursue further studies in USA is what drives the petitioner to this Court in the subject petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>The afore-narrated facts, though not in dispute, require elaboration. The birth of the petitioner takes place in USA on 05-02-1997. On the birth of the petitioner, as required in law, the birth of the petitioner was registered before the Indian Consulate General/Embassy on the strength of a certificate of live birth issued by the Tennessee Department of Health, USA and was accordingly issued a passport depicting herself to be a citizen of USA. The petitioner then arrives into the shores of this nation on a tourist Visa for multiple entry issued by the Bureau of Immigration on 18-06-2003 for a period of six months which was to expire on 17-12-2003.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>The contention of the learned counsel for petitioner is that, the petitioner is a deemed citizen of this country by descent in terms of the Citizenship Act, 1955. To consider that, certain provisions of Citizenship Act, 1955 require to be noticed. Section 3 onwards upto Section 7 of the Act, deal with acquisition of citizenship. Section 4(1-A) depicts that a minor who is a citizen of India by virtue of Section 4 and is also a citizen of any other country shall cease to be citizen of India, if he or she would not renounce citizenship or nationality of another country, within six months of attaining full age. The attainment of full age would mean becoming a Major. Therefore, in terms of the afore-quoted mandate of the statute, though the petitioner is born outside India cannot be conferred citizenship by descent as she has not renounced the citizenship of the USA within six months as mandated under the statute.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>It is not in dispute that the petitioner attained majority on 05-02-2015. Six months thereafter would expire on 04-08-2015. The petitioner did not renounce citizenship of USA, for her to be declared to be a deemed citizen of this country by descent in terms of Section 4 (1-A) supra. The petitioner having no legal right / citizenship to stay in the country does not make any effort to continue the career in the country but applies for re-issuance of passport by the USA contending that she was born in USA; she was a citizen of USA and her passport had expired. The US Consulate General, Chennai issues a passport to the petitioner for a period of one year to enable her to move out of the country and secure regular passport in USA. Exit permit is refused. Refusal of exit permit is due to unauthorized stay of the petitioner in this country. The unauthorized stay is after expiry of six months on 17-12-2003 as being a minor with US passport she could stay on that Visa only until the said date.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>What is reprehensible is that, the petitioner throughout has projected herself to be an Indian, on such projection, completes her second year Pre-University course, applies for CET-2015, secures admission under a Government quota as an Indian, thus takes away the seat of a genuine Indian who would have secured the said seat under the Government quota, pursued the career on the qualification so acquired.   The petitioner does not stop at that, on her desire to continue higher education and settle down in the US on a basic qualification of MBBS acquired in this country, on the strength of the aforesaid falsehood, gets her passport of the US renewed/reissued. The petitioner now seeks to project that she is deemed to be a citizen of this country and in the same breath, seeks citizenship of US on the ground that she was never a citizen of this country. In no manner under the Act, the petitioner can claim to be a citizen of this country either by descent or domicile as she comes into the country on a tourist Visa, therefore, the stay of the petitioner is on the face of it, unauthorised.   Action ought to have been initiated against the petitioner under the Foreigners Act, 1946.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Section 14 deals with penalty for contravention of the provisions of the Act. Whoever remains in India for the period exceeding the period for which the Visa was issued, his/her stay would be contravening the provisions of the Act, which would incur a penalty. No citizen who is not a citizen of this country can be permitted to stay in the country beyond the period indicated in the Visa except, with express approval of respondent Nos.1 and 3 or any other exceptional circumstances bringing it to the notice of the authorities. No flexibility can be shown qua Section 4 of the Citizenship Act or Section 14 of the Foreigners Act, as any flexibility would lead to tourists or immigrants overstaying in the country, which would sometimes become detrimental to the nation. Therefore, the respondents would be well within the four corners of law to initiate any proceedings against the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>The petitioner has shamelessly resorted to falsehood and achieved her goals by unethical means as indicated hereinabove. Curious enough, the petitioner is not even wanting to pursue her career in this country, having secured benefits throughout her career contending that she is an Indian. But she is a student, who would not be aware of the consequences of law or consequences of the aforesaid breach and falsehood. Therefore, this Court would direct the respondents – the Union of India and the Bureau of Immigration, to hold their coercive arm of law to be stretched upon the petitioner in the peculiar facts of this case, subject to the condition that the petitioner would pay all the fees, for all the five years of the MBBS course at the rate of the fee that would be charged to NRI/overseas citizen of India treating the petitioner’s admission to be in that category and the fee to be paid to the State, taking a lenient view of the matter. Therefore, the exit permit is directed to be issued subject to the aforesaid condition, all, again, owing to peculiar facts of the case and the conduct of the petitioner misrepresenting herself to be an Indian, snatching away the career of an Indian. In the aforesaid circumstances, if the petitioner is left off the hook without any condition, it would be putting a premium on the misrepresentation that she has made throughout calling herself to be an “Indian Citizen”.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space:pre\">	</span>Writ Petition is allowed in part.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c16e17b6be387304e6849a2bc1c9a9b2.jpeg', 'cde5573fe383aacc5a33b83833ae48ff.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-18', 1, '', '', '2023-03-18 14:15:16', '2023-03-18 09:11:11'),
(2808, 'kU5iQE7c4gHiOm0XHAFjVSB53', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. When accused is convicted and in appeal deposits 20% of the cheque amount as per the Court direction, the complainant is entitled for release of the amount in his favour. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Lakshminarayana Vs Lokesh L .<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 1189 of 2023 decided on 28 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Natarajan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>These petitions are filed by the petitioners- complainants under Section 482 of Cr.P.C for quashing the order of rejection of the application filed by the petitioners - complainants under Section 148(3) of the Negotiable Instruments Act (for short \'NI Act\') in Criminal Appeal numbers as mentioned below by the Additional City Civil and Sessions Judge, Mayohall Unit, Bengaluru.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>The case of the petitioners is that the petitioners are the complainants before the learned Magistrate. They have filed a complaint under Section 138 of the NI Act r/w Section 200 Cr.P.C against the respondent and the respondent is found guilty and convicted by the learned Magistrate for the offences punishable under Section 138 of the NI Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space:pre\">	</span>The First Appellate Court by allowing the application under Section 389 of Cr.P.C, suspended the sentence passed by the learned Magistrate with a condition to deposit 20% of the fine amount as interim compensation payable within 60 days from the date of its order. Accordingly the accused said to have deposited 20% of the fine amount before the Trial Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 7.<span style=\"white-space:pre\">	</span>Subsequently, the petitioners being the complainants in all these cases filed an application under Section 148(3) of NI Act for releasing the amount of interim compensation which came to be rejected by the First Appellate Court vide order dated 21.12.2022 which is under challenge.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>9.<span style=\"white-space:pre\">	</span>Having heard the arguments of the learned counsel for the petitioners and the respondent, especially the impugned order passed by the First Appellate Court, which reveals that the First Appellate Court held that releasing of the amount would not only cause hardship to the accused but also leads to the multiplicity of litigations. In my considered opinion, the order passed by the First Appellate Court is not correct, as it is settled position of law under Sections 143(A) and 148(3) of NI Act, it is mandatory on the part of the Trial Court as well as the First Appellate Court to impose interim compensation payable by the accused persons while challenging the case and judgment of sentence in the appeals. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>10.<span style=\"white-space:pre\">	</span>Even on perusal of Section 148 of the Act, a proviso is also there that this fine amount imposed by the First Appellate Court is also in addition to the interim compensation paid by the appellant under Section 143(A) of the NI Act and there is time limit also prescribed by the Legislature to deposit the said amount within 60 days and another 30 days, if any delay is condoned if sufficient cause shown and Sub Section (3) of Section 148 clearly reveals that the Appellate Court may direct to release the amount deposited by the appellant to the complainant at any time during the pendency of the appeals.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>However, the proviso also states that if the accused succeed in the appeal, there shall be an order of refund of the said amount with interest prescribed by the R.B.I at the relevant time of the final order. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>Such being the case, rejection of the application by the First Appellate Court is not correct and against the law. Therefore, the order under challenge is liable to be set- aside.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space:pre\">	</span>All the petitions are allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a069ece51f411b2bffe7c00b0ad4687b.JPG', '325bcb16fed9fd6e77812f67de1c80f7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-20', 1, '', '', '2023-03-17 13:45:31', '2023-03-20 16:17:26');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2810, 'U4nNnfMfAIMwzcYFHwKLqtyQk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘Any other sufficient reason’ in Order XLVII Rule 1 CPC. Overruling of Pune Municipal Corporation in Indore Development Authority is not a ground to review and recall the decision in PMC and all other decisions following it. Dissenting view of Justice BVN', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Govt. of NCT of Delhi and another Vs M/s. K.L. Rathi Steels Limited and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>D. 32257 of 2021 in Civil Appeal 11857 of 2016 decided on 17 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice B.V. Nagarathna. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>All these applications under Article 137 of the Constitution of India\r\nr/w Section 47 of the Civil Procedure Code (CPC) have been preferred\r\nby the Government of NCT of Delhi and Delhi Development Authority to\r\nreview and recall the orders passed in the respective Civil Appeals in\r\ndismissing/disposing off the same and to restore the same to their\r\noriginal files to consider the same on merits.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. I have heard learned counsel for the respective parties at length.\r\nAt the outset, it is required to be noted that in all these cases, the\r\nrespective Civil Appeals have been dismissed/disposed of, confirming\r\nthe orders passed by the respective High Courts, relying upon the\r\ndecision of this Court in the case of Pune Municipal Corporation\r\n(supra). However, it is required to be noted that in Indore\r\nDevelopment Authority v. Shailendra, (2018) 1 SCC 733, correctness\r\nof the decision in the case of Pune Municipal Corporation (supra) was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">doubted. The matter was placed before the three Judge Bench. By a\r\nmajority decision, the decision in the case of Pune Municipal\r\nCorporation (supra) was held to be per incuriam. While holding so and\r\noverruling the decision in Sree Balaji Nagar Residential Assn. (supra)\r\nand other decisions following the said decision to the extent they were in\r\nconflict with the three Judge Bench decision, this Court also observed\r\nthat the decisions rendered on the basis of Pune Municipal\r\nCorporation (supra) are open to be reviewed in appropriate cases on\r\nthe basis of the said decision. That is how, the applicants have preferred\r\nthe present review applications in view of the observations and liberty\r\nreserved in para 217 in the case of Indore Development Authority v.\r\nShailendra (dead) through Lrs. (supra). The matter does not rest\r\nthere. Thereafter, a reference was made to the five Judge Bench of this\r\nCourt. A Constitution Bench of this Court in the case of Indore\r\nDevelopment Authority v. Manohar Lal (supra) thereafter has\r\nspecifically overruled the decision in the case of Pune Municipal\r\nCorporation (supra).</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Thus, the Constitution Bench of this Court in the aforesaid decision\r\nhas not only observed that the decision rendered in Pune Municipal\r\nCorporation (supra) is overruled but has also specifically observed that\r\nall other decisions in which Pune Municipal Corporation (supra) has\r\nbeen followed, are also overruled. I have to give some meaning to the\r\nsaid observations. Thus, in view of the above specific observations\r\nmade by the Constitution Bench of this Court, the objections, as above,\r\nraised on behalf of the respective respondents are to be overruled.\r\nNone of the submissions/decisions relied upon on behalf of the\r\nrespective respondents shall be of any assistance to the respondents,\r\nthough there cannot be any dispute with respect to the proposition of law\r\nlaid down in the relied upon judgments/decisions on the review\r\njurisdiction, more particularly, in view of the observations made in para\r\n217 in the earlier decision of this Court in the case of Indore\r\nDevelopment Authority v. Shailendra (dead) through Lrs. (supra)\r\nand the observations made in para 365 in the subsequent decision of\r\nthe Constitution Bench in the case of Indore Development Authority v. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Manohar Lal (supra), reproduced hereinabove. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. It is also required to be noted that in similar set of facts and\r\ncircumstances, this Court had condoned the delay and reviewed/recalled\r\nthe similar order in which the decision in the case of Pune Municipal\r\nCorporation (supra) was relied upon. It may be true that in some\r\ncases, the review applications have been dismissed. However,\r\nconsidering the orders passed in rejecting review applications, it appears\r\nthat attention of the Court to paras 365 and 366 of the decision of the\r\nConstitution Bench in Indore Development Authority v. Manohar Lal\r\n(supra) and para 217 of the earlier decision in the case of Indore\r\nDevelopment Authority v. Shailendra (dead) through Lrs. (supra)\r\nwere not brought to the notice of the Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Now so far as the submission on behalf of the respective\r\nrespondents that the case does not fall under Order 47 CPC and that\r\nthe subsequent overruling cannot be a ground to review the earlier\r\norder(s) is concerned, at the outset, it is required to be noted that here is\r\na peculiar case where the earlier decision in the case of Pune Municipal\r\nCorporation (supra), upon which reliance has been placed earlier, was\r\nitself doubted in the subsequent decision in the case of Indore\r\nDevelopment Authority (supra) and that the matter was referred to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Constitution Bench and thereafter the Constitution Bench has declared\r\nthe law as above, more particularly paras 365 and 366 of the judgment\r\nin the case of Indore Development Authority (supra). It is also\r\nrequired to be noted that in most of the cases solely relying upon the\r\nearlier decision in the case of Pune Municipal Corporation (supra) and\r\nthough the possession of the lands in question have been taken over\r\nand in many cases it might have been utilised/used by the beneficiary\r\nauthorities, orders are passed declaring the deemed lapse of acquisition.\r\nThe resultant effect would be to return the possession of the land/s\r\nwhich might have been used by the beneficiary authorities. Therefore\r\nalso in the larger public interest, the review applications are required to\r\nbe allowed and the respective appeals are required to be considered\r\nand decided afresh. Therefore, in the facts and circumstances of the\r\ncase, these are the cases where the review applications are to be\r\nallowed and the appropriate public authorities are to be given an\r\nopportunity to put forward their case afresh, which shall be in the larger\r\npublic interest.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. In view of the above and for the reasons stated above, all these\r\nreview/recall applications are allowed. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The orders passed in the\r\nrespective Civil Appeals are hereby recalled and the respective Civil </span></span><span style=\"font-size: 12pt;\">Appeals are hereby ordered to be restored to their original file. Let the\r\nsaid Civil Appeals be considered in accordance with law and on their\r\nown merits and in light of the decision in the case of Indore\r\nDevelopment Authority v. Manohar Lal (supra). All the defences\r\nand/or contentions which may be available to the respective parties are\r\nkept open including the possession and neither I have entered into the\r\nquestions on merits nor expressed anything on merits in favour of either\r\nof the parties. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>I have had the advantage of reading the judgment proposed by\r\nHis Lordship M.R. Shah, J. in these review petitions. However, I am\r\nunable to agree with the reasoning as well as the conclusions arrived\r\nat by him</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. In these batch of cases, the issue revolves around in my view the\r\nvery maintainability of these review petitions both on the ground of\r\ndelay and on a consideration of Article 137 of the Constitution of India\r\nas well as Order XLVII Rule 1 of the Supreme Court Rules, 2013 (for\r\nshort, “S.C. Rules - 2013”) and Order XLVII Rule 1 of the Code of Civil\r\nProcedure, 1908 (‘CPC’ for short).</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. Having regard to the rival submissions made, I find that the\r\nbone of contention between the parties is with regard to the\r\nmaintainability of these review petitions bearing in mind the scope\r\nand purport of Order XLVII Rule 1 CPC and particularly, the\r\nExplanation thereto. In other words, the point for consideration is,\r\nwhether, the judgment passed in Pune Municipal Corporation and\r\nall other judgments following the said dictum, which have been\r\noverruled, could be reviewed by entertaining these review petitions\r\nand the said orders be recalled and the said cases be reheard and\r\ndecided in light of Indore Development Authority.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. At the outset, it is observed that this is not a case where the\r\nquestion involved is, whether, the judgment in Pune Municipal\r\nCorporation calls for a review or reconsideration. It has already been\r\nreconsidered by this Court, by the Larger Bench in Indore <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Development Authority. The pertinent question involved in this case\r\nis, whether, the judgment in Pune Municipal Corporation having\r\nbeen overruled and all other judgments following Pune Municipal\r\nCorporation having been overruled in Indore Development\r\nAuthority, would call for review of all those judgments despite having\r\nattained finality between the parties. In other words, whether, on the\r\nbasis of a subsequent decision, on a pure question of law, the earlier\r\ndecisions arrived at, on the basis of law as it was, could now be\r\nrecalled at the instance of one of the parties to the earlier decisions.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. In the present batch of cases, serious arguments have been\r\nadvanced on both sides on, what I consider, the maintainability of\r\nthese review petitions revolving around the Explanation to Order XLVII\r\nRule 1 CPC. Hence, in my view, the recalling of the judgments passed\r\nfollowing the judgment in Pune Municipal Corporation, which is no\r\ndoubt, overruled, will have to be reconsidered in light of Order XLVII\r\nRule 1 CPC.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n30. On a consideration of Order XLVII Rule 1 CPC, it is noted that\r\nthere are three main grounds referred to above on which a review of a\r\ndecree or order could be sought by an aggrieved person. Much\r\nemphasis has been laid by the learned senior counsel for the review\r\npetitioners herein, on the expression “sufficient reason” so as to\r\ncontend that since Pune Municipal Corporation was decided\r\ncontrary to the intent and purport of Section 24(2) of L.A. Act, 2013\r\nand the same has been overruled by a Larger Bench comprising of five\r\nJudges in Indore Development Authority, there is sufficient reason\r\nto review all judgments passed by this Court following Pune\r\nMunicipal Corporation. Hence, the present review petitions have\r\nbeen filed although there may be a delay in doing so. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. Applying the Explanation to the facts of the present case, it was\r\ncontended that in Indore Development Authority, the judgment in Pune Municipal Corporation was overruled on a pure question of law\r\nand further, all other judgments following Pune Municipal\r\nCorporation also stood overruled. But the overruling of the decision\r\nin Pune Municipal Corporation by a subsequent decision of a Larger\r\nBench of five Judges in Indore Development Authority is not a\r\nground for review and recall of the very decision in Pune Municipal\r\nCorporation and all other decisions following Pune Municipal\r\nCorporation. It was submitted that the Explanation to Order XLVII\r\nRule 1 CPC bars the review petition being entertained in the instant\r\ncases. Hence, in these cases, the review petitions may have to be\r\nrejected/dismissed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>47. In fact, in State of Haryana vs. G.D. Goenka Tourism\r\nCorporation Corporation Ltd. (2018) 3 SCC 585, this Court\r\ndirected that pending a final decision on making a reference to a\r\nLarger Bench on the interpretation of Section 24 of the L.A. Act, 2013,\r\nthe High Courts ought not to deal with any case relating to the said\r\ninterpretation. Therefore, between 21.02.2018 till the date of\r\npronouncement of the judgment by the Larger Bench in Indore\r\nDevelopment Authority i.e., 06.03.2020, the High Courts were\r\nrequested not to deal with cases arising under Section 24(2) of the L.A.\r\nAct, 2013, and its applicability to acquisition arising under L.A. Act,\r\n1894, i.e. only insofar as acquisition initiated under L.A. Act, 1894.\r\nBut insofar as cases which were decided prior to the aforesaid\r\ndirections issued by this Court or the High Court or cases decided\r\neven by this Court on the strength of the dictum in Pune Municipal\r\nCorporation cannot be set at naught between the parties to those\r\ncases. The judgment in Pune Municipal Corporation having been\r\noverruled, it would only lose its value as a precedent subsequent to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the dictum of the Larger Bench in Indore Development Authority\r\nand therefore, cannot be cited as a precedent.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">48. Hence, in my view, having regard to the scope and ambit of the\r\nExplanation to Order XLVII Rule 1 CPC, these review petitions are not\r\nmaintainable and the judgment and the orders of this Court ought not\r\nbe reviewed and the review petitions are liable to be dismissed.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>50. In Indore Development Authority vs. Shailendra (supra), a\r\nmajority of two Hon’ble Judges in paragraph 217 while opining that,\r\nthe judgment rendered in Pune Municipal Corporation and other decisions following Pune Municipal Corporation are per incuriam\r\nobserved that the “decisions rendered on the basis of Pune Municipal\r\nCorporation are open to be reviewed in appropriate cases on the basis\r\nof this decision”. However, the Larger Bench in Indore Development\r\nAuthority did not observe the above, either in paragraph 365 of the\r\njudgment or any other paragraph. In fact, the reason as to why a\r\nLarger Bench of five Judges was constituted, was because a majority\r\nof 2:1 in Indore Development Authority vs. Shailendra had taken a\r\nview that Pune Municipal Corporation was per incuriam and also the\r\ndecision in Pune Municipal Corporation was by a Two-Judge Bench.\r\nTherefore, in order to make an authoritative pronouncement on the\r\nquestion of law concerning the interpretation of Section 24(2) of L.A.\r\nAct, 2013 and since there were many orders passed by this Court\r\nquestioning the correctness of the decision in Pune Municipal\r\nCorporation, a Larger Bench of five Judges was constituted by\r\nHon’ble the Chief Justice of India. Now, the unanimous judgment of\r\nthe Larger Bench of five Judges holds the field. However, in paragraph\r\n365 of the said judgment or in any other paragraph, there is no\r\nobservation that on overruling the decision in Pune Municipal\r\nCorporation as well as all decisions following Pune Municipal\r\nCorporation, the overruled decisions have to be reviewed. The said\r\nobservation is conspicuous by its absence obviously for the reason that such a review is impermissible having regard to the Explanation\r\nto Order XLVII Rule 1 CPC which aspect has been elaborately\r\ndiscussed above. In fact, the Explanation to Order XLVII Rule 1 CPC\r\nhas not been noticed by the two learned Judges constituting the\r\nmajority in Indore Development Authority vs. Shailendra.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n51. There is another aspect which ought to be considered. That in\r\ntwo matters i.e., in the very case of Pune Municipal Corporation\r\n(decided on 08.02.2018) which has been overruled by Indore\r\nDevelopment Authority (decided on 06.03.2020) by a Bench of three\r\nJudges but the judgment has also been recalled vide Order dated\r\n16.07.2020. Similarly, another judgement dated 31.08.2016 passed by\r\nthis Court following Pune Municipal Corporation has been recalled\r\nby order dated 15.02.2022 by this very Bench. I must be forthright in\r\nsaying that the recalling of the said Orders/Judgment dated\r\n08.02.2018 and 31.08.2016 was done so in the absence of any\r\narguments being advanced on the maintainability of review petitions\r\nitself as in the present cases and without taking into consideration the\r\nExplanation to Order XLVII Rule 1 CPC. I find that the Explanation to\r\nOrder XLVII Rule 1 CPC is a bar to the very maintainability of these\r\nreview petitions in these cases. Hence, before hearing the Civil Appeals\r\n/ Special Leave Petitions on merits, the Orders passed recalling the decision passed earlier would call for reconsideration.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>52. Having held that the judgments/orders sought to be reviewed by\r\nthe petitioners is impermissible in law, the ground realities would also\r\nhave to be now taken into consideration on account of the passage of\r\ntime. It is noted that Section 24 of the L.A. Act, 2013 is in the nature\r\nof a saving clause which is evident on a reading of the same, including\r\nthe proviso to Sub-Section 2 of Section 24 of the L.A. Act, 2013. The\r\nobject is to save the acquisition as far as possible. Possibly taking a\r\ncue from the proviso, this Court in the impugned judgments reserved\r\nliberty to the petitioners herein to initiate acquisition proceedings\r\nafresh within one year in some of the cases failing which the land was\r\nto be returned to the land owners if in possession of the review\r\npetitioners herein. Thus, if no fresh acquisition proceedings are\r\ninitiated within the said period of one year by issuing a notification\r\nunder Section 11 of the L.A. 2013 Act and if the review petitioners\r\nherein are in possession of the land, the physical possession thereof\r\nshall be returned to original land owners.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>53. In the circumstances, the only relief that can be granted to the\r\nreview petitioners/applicants is to extend the period for initiation of\r\nacquisition under the provisions of L.A. Act, 2013 to a period of one\r\nyear from today. Till then, in those cases where physical possession of\r\nthe land has already been taken over by the acquiring body or has\r\nbeen handed over to the beneficiary the same shall continue to remain\r\nwith the acquiring body or the beneficiary, as the case may be.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>56. In the result, the review petitions are disposed of in the above\r\nterms.\r\nNo costs.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a2af5bc847082d96931e9c84a92a8707.jpeg', '379a9910bd41db9583a9fa88b859ad89.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-19', 1, '', '', '2023-03-19 17:21:20', '2023-03-20 06:41:39'),
(2811, 'EGC1vKzQYR3Xl4Kxg2XBGt9pn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘Doctrine of Substituted Security’ entitles mortgagee to anything that is substituted for the mortgaged property. Bank can claim compensation amount if the mortgaged property is acquired. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S D C B Bank Limited Vs The Assistant Commissioner and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 18206 of 2022 decided on 16 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petitioner –Bank is grieving before the Writ Court against non-consideration of its representation dated 25.07.2022 a copy whereof avails at Annexure-G wherein it has requested the 2nd Respondent – SLAO to deposit the compensation amount to the loan account of 3rd Respondent – borrower, toward repayment that was secured by the mortgage of the property in acquisition. Learned counsel for the Petitioner vehemently argues that mortgage is one of the five traditional modes of transfer recognized by the provisions of the Transfer of Property Act, 1882 and therefore, his client has a vested interest in the subject property, which entitles it to the payment of compensation for its appropriation to loan account of the borrower. She expresses anguish against the 2nd Petitioner –Bank is grieving before the Writ Court against non-consideration of its representation dated 25.07.2022 a copy whereof avails at Annexure-G wherein it has requested the 2nd Respondent – SLAO to deposit the compensation amount to the loan account of 3rd Respondent – borrower, toward repayment that was secured by the mortgage of the property in acquisition. Learned counsel for the Petitioner vehemently argues that mortgage is one of the five traditional modes of transfer recognized by the provisions of the Transfer of Property Act, 1882 and therefore, his client has a vested interest in the subject property, which entitles it to the payment of compensation for its appropriation to loan account of the borrower. She expresses anguish against the 2nd</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>Having heard the learned counsel for the parties and having perused the Petition papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>a)<span style=\"white-space:pre\">	</span>Petitioner apparently is a scheduled Bank and the 3rd Respondent happens to be its borrower. He has availed certain sum of money as loan having mortgaged the subject land vide registered instrument dated 28.09.2017 for securing the repayment of said loan. The mortgaged land having been acquired, the Petitioner – Bank had made a representation requesting the SLAO to remit the compensation amount to the loan account of the 3rd Respondent, which has since been declared NPA. Except some exchange of notices, nothing concrete appears to have been done in the matter from the side of the SLAO.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>b)<span style=\"white-space:pre\">	</span>It is pertinent to mention that where the mortgaged property has been acquired, the amended provisions of Section 73 of the Transfer of Property Act 1882 Act becomes invokable. This section is an instance of incorporation application of the “doctrine of substituted security”, viz that the mortgagee is, for the purpose of his security, entitled in lieu of only to the mortgaged property, to anything that is substituted for it. If, by a process of law or by a compelling situation sanctioned by law, the security given to a creditor for the repayment of debt is changed into something other than the property, the mortgagee gets rights over the substituted security namely, the changed one i.e., the compensation or the like.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>d)<span style=\"white-space:pre\">	</span>Learned counsel for the Petitioner is more than justified in heavily banking upon the provisions of Section 64 of the 2013 Act to contend that her client being the person interested has sent a Representation in terms of which the SLAO ought to have referred the dispute to the jurisdictional court, for adjudication since the mortgage is shifted to the compensation in lieu of the mortgaged property. Even Section 76 of the 2013 Act from which support can be drawn by the Petitioner reads as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“76. Dispute as to apportionment: When the amount of compensation has been settled, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof is payable, the Collector may refer such disputes to the Authority.”<br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>It hardly needs to be stated that this provision is substantially texted on par with Section 30 of the erstwhile Land Acquisition Act, 1894. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>e)<span style=\"white-space:pre\">	</span>The State Government being the appropriate Government vide Notification dated 10.01.2017 issued under Section 51 of the Act has designated the I Additional District Judge of every District as & to be the “Authority” inter alia for the adjudication of disputes of the kind. That being the position, the SLAO ought to have referred the matter to the said Judge for adjudication, especially when Section 63 of the Act excludes the jurisdiction of ordinary Civil Courts. This having not been done, there is justiciable right availing to the Petitioner to seek appropriate writ for its enforcement. In matters like this, driving the mortgagee to the ordinary Civil Court would only amount to the Writ Court shirking its responsibility to do justice in plain cases of the kind. In the above circumstances, this Writ Petition succeeds;<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Till the Reference is decided, the compensation amount shall be kept in the interest earning scheme of some Nationalized Bank as a short time deposit of one year and that, the compensation shall follow its outcome. Now, no costs</b><br></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e72ab00828a13459dd91dc1a47294da7.JPG', '5ae7185d0a3d9d8d9f17fa501d6cb258.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-20', 1, '', '', '2023-03-19 17:30:27', '2023-03-20 08:32:18');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2812, 'cTvAO8nJQKc5lIupQf1batUJA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land acquisition. For a deemed lapse under Section 24(2) of the Act, 2013, there shall be a lapse on the part of the Acquiring Body/beneficiary in not taking the possession and not paying the compensation. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>State of Gujarat and others Vs Jayantibhai Ishwarbhai Patel.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1753-1754 of 2023 decided on 17 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice Manoj Mishra.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Feeling aggrieved and dissatisfied with the impugned judgment and order dated 31.08.2015 passed by the High Court of Gujarat at Ahmedabad in Special Civil Application No.9740/2012 by which the Division Bench of the High Court of Gujarat has allowed the said writ petition and has declared that the acquisition with respect to the land in question is deemed to have lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as “Act, 2013”) as also the judgment and order dated 01.04.2016 passed by the High Court of Gujarat in Misc. Civil Application (For Review) No.3036 of 2015 in Special Civil Application No.9740/2012, the State of Gujarat and others have preferred the present appeals. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The facts leading to the present appeals in nut­shell are as under:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.1 That, the respondent herein – original writ petitioner was the owner of the land bearing Survey No.287 admeasuring 2 Hectare 37 Are 75 Sq. Mtrs. of village Tarsava, Taluka Vaghodia, District Vadodara (hereinafter referred to as “land in question”). A notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as “Act, 1894”) came to be issued on 11.04.1991 to acquire the land in question alongwith adjacent agricultural lands for the purpose of re­settlement of Narmada Project oustees. That, thereafter, notification under Section 6 of the Act, 1894 was issued on 06.02.1992. The respondent herein – original land owner – original writ petitioner entered into an agreement and a consent award was passed on 11.06.1993. As per the agreement and the consent award, initially 90% of the amount of compensation was required to be paid to the land owners and 10% amount was required to be paid thereafter. However, it appears that the respondent – land owner had second thought about the consent and on 13.02.1995, he wrote to the Assistant Commissioner, Sardar Sarovar Rehabilitation Agency that the compensation may not be paid and the land in question be released from acquisition. On such application, the Assistant Commissioner passed an order dated 07.03.1995, in which, he recorded that the order was passed for payment of 90% of the compensation, however, the land owner did not accept such compensation. Thereafter, even the order of payment of remaining 10% of compensation was also passed however, the land owner – respondent herein did not accept such compensation and that he has now applied for cancellation of acquisition itself on the ground that due to family disagreements, he is not prepared to sell the land. Thereafter, nothing further happened till 2009 and it appears that the land owner/s continued to be in possession and continued to cultivate the agricultural lands</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.2 That, on 21.01.2009, the Assistant Commissioner, Sardar Sarovar Rehabilitation Agency cancelled the order dated 07.03.1995 by observing that the acquisition of the land in question has been completed and the land has been vested in Sardar Sarovar Rehabilitation Agency and on basis of that affected persons were allotted also and therefore, as per the legal provision, once an order is passed, it is mandatory to make the payment of compensation. Therefore, the Assistant Commissioner, Sardar Sarovar Rehabilitation Agency cancelled the earlier order dated 07.03.1995 and restored the order for 90% and 10% amount of compensation as per the earlier orders dated 05.05.1993 and 09.02.1994 (for payment of 90% and 10% of the amount of compensation respectively). Pursuant to the aforesaid order dated 21.01.2009 of the Assistant Commissioner, the Special Land Acquisition Officer vide communication / letter dated 05.04.2010 conveyed to the respondent herein – original land owner that his case for payment of compensation is fixed on 16.04.2010 in the office of Talati­cum­Mantri, Tarsava and therefore, he shall remain present and receive compensation. That, thereafter the respondent No.1 – original writ petitioner filed the writ petition for setting aside the consent award dated 11.06.1993 passed under Section 11 of the Act, 1894</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.4 In the meantime, Act, 2013 came into force with effect from 01.01.2014 and therefore, Section 24(2) of the Act, 2013 was pressed into service and it was submitted on behalf of the land owner that as, neither the compensation has been paid nor the possession of the land in question is taken and that the land owner continued to be in possession of the land in question, the acquisition proceedings are deemed to have lapsed under Section 24(2) of the Act, 2013.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.6 By the impugned judgment and order, the High Court has set aside the order dated 05.04.2010 by observing that such an order could not have been passed after a period of 15 years having once accepted the request on behalf of the land owner to cancel the acquisition. Thereafter, the Division Bench of the High Court has further passed an order that as, neither the compensation is paid nor the possession is taken and/or the original land owner continued to be in possession and cultivating the land in question, the acquisition is deemed to have lapsed under Section 24(2) of the Act, 2013. Consequently, the Division Bench of the High Court has allowed the said writ petition by setting aside the land acquisition award dated 11.06.1993 qua the land in question</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5.1 At the outset it is required to be noted that the original award dated 11.06.1993 passed under Section 11 of the Act, 1894 was a consent award with respect to the land owned by the present respondent – original land owner as well as other lands acquired for re­settlement of Narmada Project oustees. It is also to be noted that thereafter and pursuant to the consent award, the amount of compensation (90% + 10%) was in fact offered to the land owner and he was called upon to accept the compensation offered, but the respondent – original land owner refused to accept the compensation offered and insisted to withdraw the acquisition. It was the case on behalf of the appellants before the High Court that the possession of the land in question was taken by drawing spot panchnama at the time of passing of the consent award. However, the High Court has disbelieved the same by observing that even as per the affidavit of the Assistant Commissioner, the land owner continued to be in possession of the land in question and continued to cultivate the same. However, the affidavit which is reproduced in the impugned judgment and order is required to be considered in its true perspective and in its entirety. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5.2 Thus, from the aforesaid it can be seen that it was the specific case on behalf of the appellants and the Assistant Commissioner that the land owner refused to hand over the land and refused to accept the compensation alongwith other similarly situated farmers whose lands were also acquired as per the consent award dated 11.06.1993. It can also be seen that it was the case on behalf of the appellants that by order dated 07.03.1995, pursuant to the reluctance of the land owner to hand over the possession (physical possession) and to take the compensation on so­called ground of family disputes, the order of payment of compensation was cancelled. But at the same time, the order of acquisition was not cancelled and that the land owner successfully avoided to hand over the possession of the land acquired under the provisions of the Act, 1894 though the land vested in the Sardar Sarovar Rehabilitation Agency. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5.3 Considering the aforesaid factual aspects it is required to be considered whether there shall be deemed lapse of acquisition under Section 24(2) of the Act, 2013 as observed and held by the High Court ?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5.4 Therefore, as per the law laid down by this Court in the case of Indore Development Authority (Supra), taking over the possession of the land by drawing panchnama is held to be legally permissible and can be said to be taking over the possession legally. In the present case, there was a consent award under Section 11 of the Act, 1894. The possession was taken by drawing the panchnama at the time of passing of the consent award dated 11.06.1993. However, thereafter, because of the reluctance on the part of the land owner, he did not actually and physically hand over the possession and he continued to cultivate the acquired land which actually vested in the State Government / Acquiring Body / Sardar Sarovar Rehabilitation Agency. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. Even otherwise, in the facts and circumstances of the case, there shall not be any deemed lapse under Section 24(2) of the Act, 2013 on the ground that the amount of compensation was not paid. It is an admitted position that after the consent award, under Section 11 of the Act, 1894, was passed on 11.06.1993, the amount of compensation was in fact offered to the land owner alongwith other land owners and the respondent – original land owner was called upon to remain present in the office of Talati­cumMantri to receive / accept the compensation. However, the land owner refused to accept the compensation though offered. In that view of the matter, once the compensation was offered, which as such was offered pursuant to the consent award under Section 11 of the Act, 1894, but the land owner refused to accept the same, how there can be any deemed lapse of acquisition under Section 24(2) of the Act, 2013? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6.1 As per the law laid down by this Court in the case of Indore Development Authority (Supra) and even otherwise considering the object of providing the deemed lapse of acquisition under Section 24(2) of the Act, 2013 seems to be that if there is any lapse on the part of the Acquiring Body / agency in not taking the possession and not paying the compensation there shall be deemed lapse of acquisition. Therefore, for a deemed lapse under Section 24(2) of the Act, 2013, there shall be a lapse on the part of the Acquiring Body / beneficiary in not taking the possession and not paying the compensation. In the present case, both the conditions are not satisfied. In fact, the amount of compensation under the consent award under Section 11 of the Act, 1894 was offered and the land owner was called upon to accept the compensation however, the land owner refused to accept the same. Even the possession was taken by drawing the panchnama at the time of declaration of the consent award under Section 11 of the Act, 1894. However, thereafter, because of the reluctance on the part of the original land owner, the physical and actual possession of the land could not be taken by the Acquiring Body. From the aforesaid it can be seen that there was no lapse at all on the part of the Authority neither in offering / paying the compensation nor in not taking the possession. Therefore, the Division Bench of the High Court has materially erred in declaring that the acquisition with respect to the land in question is deemed to have lapsed under Section 24(2) of the Act, 2013. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. Now, so far as the impugned judgment and order passed by the High Court in setting aside the award dated 11.06.1993 on the ground that the award has not been implemented for number of years and the amount of compensation has not been paid for number of years and the land is not utilized / used for number of years is concerned, at the outset it is required to be noted that it was the original owner who refused to accept the compensation offered in the year 1993. Therefore, an order dated 07.05.1993 was passed cancelling the order of offering the compensation. However, the acquisition and the consent award, both continued. However, thereafter, the land owner continued to make representations to release the land from acquisition. Therefore, it was the original land owner who did not accept the compensation offered and continued to make representations to release the land from acquisition. In these circumstances, the Division Bench of High Court has committed a very serious error in setting aside the consent award on the aforesaid ground. The consent award under Section 11 of the Act, 1894 ought not to have been set aside in the manner in which it is set aside. The High Court has not at all properly appreciated and considered the conduct on the part of the land owner. At this stage it is required to be noted that at many places the High Court has observed in paragraph 11 that “the petitioner, alongwith other land owners of the area, agreed to acquisition of his land on a fixed rate of compensation”. Even the High Court has also taken note of the fact that the amount of compensation was offered but the original land owner refused to accept the same. Once the land owner refuses to accept the amount of compensation offered by the Acquiring Body, thereafter it will not be open for the original land owner to pray for lapse of acquisition on the ground that the compensation has not been paid. As observed hereinabove, there shall be deemed lapse of acquisition under Section 24(2) of the Act, 2013 if there is a lapse on the part of the Acquiring Body / beneficiary in not taking the possession and the compensation is not paid. Even otherwise as observed and held by this Court in the case of Indore Development Authority (Supra), for the deemed lapse under Section 24(2) of the Act, 2013, twin conditions of not taking the possession and not paying the compensation, both are required to be satisfied. Therefore, if one of the conditions is not satisfied, there shall not be any deemed lapse.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. Now, so far as the prayer on behalf of the land owner to remand the matter to the High Court to consider the legality and validity of the subsequent order dated 21.01.2009 cancelling the earlier order dated 07.03.1995 is concerned, at the outset it is required to be noted that the order dated 21.01.2009 was as such not the subject matter of the writ petition before the High Court. No prayer was made to set aside the order dated 21.01.2009 passed by the Assistant Commissioner, Sardar Sarovar Rehabilitation Agency. What was challenged before the High Court was award under Section 11 of the Act, 1894 and the subsequent communication dated 05.04.2010 issued by the Special Land Acquisition Officer calling upon the land owner to remain present in the office of Talati cum Mantri to accept the compensation and to release the land. Be that as it may, assuming that the order dated 21.01.2009 was bad in law and the earlier order dated 07.03.1995 is restored, in that case also, it would not have a bearing on the aspect of deemed lapse under Section 24(2) of the Act, 2013. The fact remains that though the amount of compensation was offered and the original land owner was called upon to accept the compensation as per the consent award, he refused to accept the same. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. In view of the above and for the reasons stated above, present appeals succeed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '17252c1592baf887c0f09d0cda08a2c7.jpeg', '536059b08beb0877f820fd1a230c806a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-21', 1, '', '', '2023-03-20 12:48:16', '2023-03-21 09:14:52'),
(2813, 'Bm7K69dumjy3kmsakrawTkdqg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act, 1996. Writ petition challenging interlocutory order of the Arbitrator is not maintainable. The Act defers the remedy till the stage of section 34. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Dodballapur Integrated Textile Park Limited Vs Vinod G. Jain and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 12783 of 2020 decided on 16 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Brief facts that lead the petitioner to this Court in the subject petitions, as borne out from the pleadings, are as follows:- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner and the respondents in both these cases who are claimants in the arbitration proceedings generate a dispute between them and did not arrive at a consensus for appointment of an Arbitrator. It is then the claimants approached this Court in C.M.P. No.376 of 2018 and 375 of 2018 respectively, seeking appointment of an Arbitrator. This Court in terms of its order dated 12-12-2019 and 09-01-2020 allows the petition and appoints a sole Arbitrator. The issue does not concern merits of the claim of the claimants or the dissent of the petitioner. In the proceedings before the Arbitrator, applications were filed by the petitioner invoking Section 16 of the Arbitration and Conciliation Act, 1996 (‘the Act’ for short) read with Sections, 33, 34 and 37 of the Karnataka Stamp Act, 1957 and Section 49 of the Registration Act, 1908. Applications were filed seeking summoning of a sub-lease agreement dated 10-11-2016 from the possession of claimants which was not relied on by the claimants. The applications came to be rejected by order dated 07-10-2020 and it is this rejection of applications filed by the petitioner that drives the petitioner to this Court in the subject petitions.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>The afore-narrated facts are not in dispute. It is also not in dispute that applications filed under Section 16 of the Act were rejected by the Arbitrator. Therefore, the order becomes interlocutory order during the pendency of proceedings before the Arbitrator. In these circumstances, whether the writ petitions against interlocutory orders would be maintainable or otherwise requires to be gone into, at the outset, as the issue of maintainability would always cut at the root of the matter. Therefore, the issues that arise for consideration are two fold – </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>whether writ petitions challenging an interlocutory order of rejection of applications by the Arbitrator in an arbitration proceeding would be maintainable before this Court?  and </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>if it is maintainable, whether the rejection of applications is tenable in law?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>The Arbitrator holds that the petitioner has not brought out any good ground to summon the document which is alleged to be in possession of the claimants and which is not relied on by the claimants. Therefore, this forms an interlocutory order on an interlocutory application. Whether writ petitions would become maintainable on the said interlocutory order is what requires consideration at the hands of this Court. The issue as to whether the parties to the arbitration should await the final decision of the Arbitrator and then call in question the said proceedings under Section 34 of the Act and writ petition on an interlocutory order would not be maintainable is no longer res integra.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>A Division Bench of Madhya Pradesh High Court in M.P. ROAD DEVELOPMENT CORPORATION v. THE MINISTRY OF ROAD, TRANSPORT AND HIGHWAYS AND ANOTHER considers the very issue whether an order passed under Section 16 of the Act would permit a challenge before the High Court under Article 226 of the Constitution of India.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In the light of the judgments rendered by the Apex Court and as followed by the Division Benches of Bombay and Madhya Pradesh High Courts, the writ petitions challenging an interlocutory order of the Arbitrator would not be maintainable. It is open to the petitioner to urge all the grounds that are urged in the present petition while calling in question the award of the Arbitrator once it is passed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. Reserving such liberty, the petitions which being neither maintainable nor entertainable, would necessarily meet their dismissal and are accordingly dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b83c6f23c4f7859d324b477b67eb8ebd.jpeg', '9fc402b03705de83ae24bf8a80358c63.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-21', 1, '', '', '2023-03-20 13:52:15', '2023-03-21 06:58:05'),
(2814, '2nBSFssodnx6VdEEbck9AaVYB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sections 407 & 408 Cr.P.C. Case and counter case have to be tried together by the same court irrespective of the nature of offences involved to avoid conflicting judgments over the same incident. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sanjeev Kumar Hiremath Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 2459 od 2022 decided on 13 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Mohammad Nawaz.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2.<span style=\"white-space: pre;\">	</span>Petitioner is the first informant in Crime No.200/2017 registered at Jayanagar Police Station against one Raghavendra, in respect of an incident which took place at about 12.30 p.m. on 10.07.2017, which culminated in filing of charge-sheet against the said accused for offences punishable under Section 341, 324, 504 and 506 of IPC. The offences alleged being triable by the learned Magistrate, the said case numbered as C.C.No.23250/2018 is pending on the file of the II Additional Chief Metropolitan Magistrate, Bengaluru City.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>It is not in dispute that with regard to the very same incident which took place on 10.07.2017 a counter complaint was lodged by the respondent herein against the petitioner and his father, which was registered in Crime No.201/2017 of Jayanagar Police Station. On completion of investigation the police have filed charge- sheet against the petitioner and his father for offences punishable under Sections 323, 324 of IPC and Section 3(1)(r), 3(1)(s) of the SC/ST (Prevention of Atrocities) Act,1989 (SC/ST Act, for short). Since the offences under the SC/ST Act are triable by the Special Court, the charge- sheet was filed before the Special Court, numbered as Special Case No.35/018 and the same is pending before the LXX Additional City Civil and Sessions Judge, Bengaluru City.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>One of the grounds for dismissal of the petition by the learned Sessions Judge was that Section 408(1) of Cr.P.C., only gives power to the Sessions Judge to transfer a case pending in one criminal Court to another criminal Court in his Sessions Division, but it does not give power to Sessions Court to call for a case to that Court from the Magistrate Court without formal committal.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>In the case on hand, it is not in dispute that both the cases, one which is pending before the learned Magistrate and one which is pending before the Special Court arises out of a case and counter case. In such a situation, it is useful to refer to the decision of the Hon’ble Apex Court in the case of ‘State of M.P. vs. Mishrilal and others’ reported in (2003) 9 Supreme Court Cases 426 relied upon by the learned counsel for petitioner.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In the said decision, the Apex Court has referred to a decision in Nathi Lal vs. State of U.P. reported in 1990 Supp SCC 145, wherein it has been held as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> “the fair procedure to adopt in a matter like the present where there are cross-cases, “is to direct that the same learned judge must try both the cross-cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter, he must proceed to hear the cross-case and after recording all the evidence, he must hear the arguments but reserve the judgment in that case. The same learned judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in the particular case. The evidence recorded in the cross-case cannot be looked into nor can the judge be influenced by whatever is argued in the cross-case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross- case. But both the judgments must be pronounced by the same learned judge one after the other.”<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>The above settled principles of law in deciding the case and counter case has not been disputed by the learned counsel for respondent. In plethora of judgments it is held that a case and a counter case have to be tried together by the same court irrespective of the nature of offences involved. The rationale behind this is to avoid conflicting judgments over the same incident, as held in the above noted decision. That being so, the prayer made by the learned counsel for the petitioner in this petition requires to be allowed.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c73250382ce7ebe848a72af12ffdbae5.JPG', 'e6a06a68dd78652f0d2752b14f276780.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-21', 1, '', '', '2023-03-20 14:02:10', '2023-03-21 10:27:12');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2815, '6BlQsiwwg8tLsEq1rOkx6Hqie', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Wills. Attesting witness is not just a ritualistic signer of a document. He is a key player in putting the plan of action of the testator into reality after the death of testator. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>S Krishna Rao Thr LRS and others Vs M J Vittal and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R.F.A 488 of 2008 decided on 6 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V. Srishananda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The facts narrated in the pleadings before the Trial Court which are utmost necessary for disposal of these appeals are as under: A suit came to be filed by the plaintiff seeking the relief of partition and separate possession of his 1/4th share in the properties left behind by his father Sri S.S. Murthy Rao and his mother Smt. Rangamma, which is described in \'A\', \'B\' and \'C\' schedule properties to the plaint. Schedule \'A\' is a residential house consisting of ground and first floor and an outhouse with a grass in the premises measuring 80\'x120\' bearing No.5, (old No.341), upper palace Orchards, Sadashivanagar, Bangalore, bounded on East by site No.340, west by site No.342, south by site No.203 and north by road. \'B\' schedule property consists of movable properties namely; singer sewing machine, portable typewriter imported, jewels, books and other house hold articles. \'C\' schedule properties consist of workshop equipments namely; lathe, drilling machine and vice.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 4.<span style=\"white-space: pre;\">	</span>It is contended by the plaintiff that himself defendant Nos.1, 4 and 5 are the children of Sri S.S. Murthy Rao and Smt. Rangamma. Defendant Nos.2 and 3 are the sons of the defendant No.1 and defendant Nos.6 and 7 are the daughter and son of the plaintiff.   It is further contended that S.S. Murthy Rao constituted a Hindu undivided family, governed by Mitakshara school of Hindu Law and all the children of S.S. Murthy Rao were married during his life time. It is further contended by the plaintiff that she was residing with her husband after her marriage and the fourth defendant having acquired the citizenship of New Zealand is the resident of New Zealand from the year 1968 with his wife and children. Fifth defendant is residing with her husband in Kumbakonam.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>36.<span style=\"white-space: pre;\">	</span>In view of the rival contentions of the parties, following points would arise for consideration: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(1)<span style=\"white-space: pre;\">	</span>Whether the first defendant has successfully established that S.S. Murthy Rao has executed the alleged Will on 11.02.1981 marked at Ex.D.1 and he further proves that Smt. Rangamma has executed the alleged Wills dated 11.02.1981 and 25.07.1983 and codicil dated 07.12.1983 and thus the plaintiff is not entitled to any share in the suit property? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(2)<span style=\"white-space: pre;\">	</span>Whether the impugned judgment is suffering from legal infirmity or perversity insofar as decreeing the suit of the plaintiff in respect of \'A\' schedule property and thus calls for interference?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> (3)<span style=\"white-space: pre;\">	</span>What order?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>79.<span style=\"white-space: pre;\">	</span>In the case on hand, the self acquisition of the suit schedule \'A\' property is in dispute. Relationship is not in dispute. Plaintiff filed the suit against the defendants for partition and separate possession of the suit property as referred to supra.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>80.<span style=\"white-space:pre\">	</span>Though the plaintiff has contended that the suit property is purchased by utilisation of the joint family nucleus, no proper and plausible evidence is placed on record by the plaintiff in this regard except deposing that father of Sri Murthy Rao had some property at Kumbakonam.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>82.<span style=\"white-space:pre\">	</span>In the case on hand, the date of death of Murthy Rao is 05.05.1983 and his wife Smt. Rangamma died on 18.01.1984. In the absence of Will said to have been executed by Murthy Rao and Smt. Rangamma and the Codicil executed by Smt. Rangamma, all the parties suit would have been entitled to equal share in the suit property. It is the case of the first defendant that Murthy Rao and Rangamma during their life time executed Wills and Codicil marked at Exs.D.1, D.2, D.8 and D.9.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>84.<span style=\"white-space:pre\">	</span>In the case on hand, the plaintiff has seriously disputed the Wills executed by Sri Murthy Rao and Rangamma and Codicil executed by Rangamma. According to counsel for plaintiff, there is a thick cloud of suspicion hovering over the above documents. Trial Court has accepted the contentions of the plaintiff and disregarded the Wills and codicil referred to supra. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>85.<span style=\"white-space:pre\">	</span>Therefore, it is the task of this court to find out whether the testators signed the Will after understanding the nature and effect of the dispositions in the Will and codicil when they were sound and disposable state of mind?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>89.<span style=\"white-space:pre\">	</span>In view of above peculiar facts and circumstances of the case, it is the task of this court to consider whether Wills and Codicil have been properly proved in accordance with law in the light of the legal principles enunciated in the decisions relied on by the parties referred to supra.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>106.<span style=\"white-space:pre\">	</span>Thus, it can be safely concluded that in a given case where veracity or genuineness of a Will is called in question, the role of an attesting witness is to provide such necessary evidence to make the property distribution plan of the testator work as per his wishes in his absence. Therefore, an attesting witness is not just a ritualistic signer of a document and his act is not restricted to mere signing of a document. The attesting witness is a key player in putting the plan of action of the testator into reality after the death of testator.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>109.<span style=\"white-space:pre\">	</span>As per the mandate of clause (c) of section 63 of Indian succession Act, a Will is required to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have seen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person. The Will must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. Further, no particular form of attestation is prescribed. As such, there is no prescription in the statute that the testator must necessarily sign the Will in the presence of the attesting witnesses only or that all the attesting witnesses must put their signatures on the Will simultaneously or at the same time, in the presence of each other and the testator. Further, Section 68 of Indian Evidence Act only prescribes that if a will is not attested, it shall not be used as evidence and further it can necessarily be proved by examining at least one of the attesting witnesses.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>111.<span style=\"white-space:pre\">	</span>The need and necessity for stringent requirements of clause (c) to Section 63 of the Indian Succession Act has been succinctly elucidated and explained by Hon’ble Apex Court in H. Venkatachala Iyengar supra by dilating on the statutory and mandatory requisites in respect of proof of a will. The Hon\'ble Apex Court had further highlighted the dissimilarities between the Will which is a testamentary instrument vis-à-vis other documents of conveyance. It is emphasised that the proof of a Will is called in question before a court after the testator has departed from the world and therefore, testator cannot say that the Will is his own. Therefore, there is onerous responsibility on the Court to consider the genuineness of the Will in the absence of the testator.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>114.<span style=\"white-space:pre\">	</span>In the case on hand as discussed supra, both the attesting witnesses to the disputed Wills did not dispute that they have signed the Will executed by Sri Murthy Rao and Smt Rangamma. Thus, the finding recorded by the learned Trial Judge in the impugned judgment that the attesting witnesses did not know the details as to the family affairs of testators and contents of Wills and codicil and therefore Wills & Codicil cannot be believed as genuine documents, cannot be countenanced in law. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>115.<span style=\"white-space:pre\">	</span>The next question that needs attention of this court in upholding the genuineness of the disputed Wills is that improper distribution or bequeath under the Wills and Codicil.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>116.<span style=\"white-space:pre\">	</span>Admittedly the contents of the Wills and codicil referred to supra answers the said question in abundance. The testators namely Murthy Rao and Rangamma had their own reasons in arriving at the conclusion as to bequeath and in the absence of contra evidence placed on record by the plaintiff, this court has to record a finding that mere disinheritance of other sharers or lesser share has been given to few sharers would not ipso facto be treated as suspicious circumstance to doubt the genuineness of the wills and codicil as is held by Hon’ble Apex Court in the case of Savithri and others Vs. Karthyayani Amma and others reported in (2007) 11 SCC 621.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>119.<span style=\"white-space:pre\">	</span>It is argued on behalf of plaintiff that health condition of Murthy Rao and Rangamma was not sound in view of the admissions obtained in the cross examination of DW1 and therefore, a thick cloud of suspicion is hovering over the veracity of the Wills and Codicil. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>120.<span style=\"white-space:pre\">	</span>But the material evidence on record is not sufficient enough to hold that physical ailments of both the testators interfered in mental fitness in taking appropriate decision. It is settled principles of law that sound and disposing state of mind is to be tested in a given case depending upon the facts and circumstances of that case. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>121.<span style=\"white-space:pre\">	</span>In the case on hand, when such test is applied, the material evidence on record placed by the parties are not sufficient enough to hold that testators did not possess required mental fitness at the time of execution of Wills and Codicil. Detailed cross examination of attesting witnesses on behalf of the plaintiff did not yield any plausible material in establishing weak or fragile mental fitness of the testators.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>123.<span style=\"white-space:pre\">	</span>As to the discharge of burden by the propounder of will, Hon’ble Apex Court in Shivakumar & Others. v. Sharanabasppa, reported in (2021) 11 SCC 277 has categorically held that if a person challenging the Will alleges fabrication or fraud, undue influence, coercion etc., in regard to the execution of the Will, such pleas have to be proved by him. In the case on hand, plaintiff having joined the issue with regard to proof of Wills and Codicil did not lead any rebuttal evidence to establish that Wills and Codicil are fabricated or got executed by playing fraud or coercion on testators.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>124.<span style=\"white-space:pre\">	</span>To sum up, it is enough to refer to one of the recent decisions of Hon’ble Apex Court in the case of Kavita Kanwar vs. Mrs. Pamela Mehta and Others reported in (2021) 11 SCC 209, wherein Hon’ble Apex Court referred to almost all previous decisions right from H.Venkatachala Iyengar supra and held that in a given case a suspicion is created are essentially those where either the signature of the testator is disputed or the mental capacity of the testator is questioned. In the matter of appreciating the genuineness of the execution of a Will, there is no place for the Court to see whether the distribution made by the testator was fair and equitable to all of his children. It is further held that the Court is not required to apply Article 14 of the Constitution of India, to dispositions under a Will. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>125.<span style=\"white-space:pre\">	</span>There cannot be any dispute with regard to the legal principles enunciated in Madhukar supra relied on by the learned counsel for respondent. In fact, in paragraph No.9 of the said judgment referred to supra, their lordships have ruled that when once the propounder adduces prima facie evidence in proving the competence of the testator and execution of the Will in the manner contemplated under the law, the contestant opposing the Will should place such material on record rebutting the material evidence placed by the propounder as the onus would shift to the contestant of the Will.   If any such evidence is placed by the person who opposes the Will, the onus would again shift back to propounder. In the case on hand, there is no rebuttal evidence placed by the plaintiff who is contesting the genuineness of the Wills and Codicil. As such, the onus did not re-shift to the propounder-first defendant. Therefore, the decision in Madhukar’s case supra, is not of much avail to the respondent-plaintiff in their case being advanced to any extent. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>126.<span style=\"white-space:pre\">	</span>Since, this court has discussed at length as to the legal principles in establishing the genuineness of a Will in a given case with authoritative pronouncements of Hon’ble Apex court, further discussion on the decisions relied on by the learned counsel for the appellants is not necessary.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>127.<span style=\"white-space:pre\">	</span>In view of foregoing discussions, this court is of the considered opinion that first defendant being the propounder of Wills and Codicil has succeeded in getting the Wills and Codicil marked as Exs.D.1, D.2, D.8 and D.9, have passed the test of “Pancha Padi” (all the five steps) as is held in J.T. Surappa’s case Supra. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>128.<span style=\"white-space:pre\">	</span>As such, the invariable inference this court has to draw is that the Wills and Codicil marked at Exs.D.1, D.2, D.8 and D.9 are true and genuine documents. Consequently, the contrary view taken by the trial Court in the impugned judgment is held to be suffering from legal infirmity and perversity. Accordingly, the judgment and decree passed by the trial Court needs to be set aside and suit of the plaintiff is to be dismissed with costs throughout. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>129.<span style=\"white-space:pre\">	</span>Hence, the Point Nos.1 and 2 are answered in Affirmative.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b> 130.<span style=\"white-space:pre\">	</span>REGARDING POINT NO.3:<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>Appeals are allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '10ffeccad6721ccf6cd5acd1d5b07a90.JPG', 'aa6de79895b3c6aca9f3360e1d23cf05.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-21', 1, '', '', '2023-03-20 15:13:19', '2023-03-21 12:19:05'),
(2816, '0GSAvqWzFvg7BQeuJtMe8MXPE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Property allotted to a female in family partition between herself and her father is her absolute property and does not revert to heirs of her father under Section 15 (2) of the Hindu Succession Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Basangouda Vs Muddangouda and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 7094 of 2010 decided on 14 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice C.M. Joshi</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The appellant filed a suit for declaration and injunction contending that he had married Smt. Eshwaramma D/o Ramangouda in the year 1960 and his wife Eshwaramma was owner in possession of suit land bearing Sy.No.287/A measuring 22 acres 18 guntas situated at Athanur village in Manvi Taluk. It was contended that after the death of his wife Eshwaramma, the plaintiff became a exclusive legal heir and the said Eshwaramma died issueless in the year 1998. It was also contended that the said Eshwaramma had acquired ownership over the suit property on the strength of the oral partition between her father and her brothers namely Muddanagouda, Sharanappa, Siddanagouda and Shanker in the year 1968. The partition which was initially oral, came to be recorded in a memorandum of partition and the same came to be registered on 21.09.1974. Initially, the suit survey number which was fallen to the share of Eshwaramma was measuring 26 acres 28 guntas and later a portion of it had to be surrendered to the Government in view of the ceiling limitations under the Karnataka Land Reforms Act. Ultimately Sy.No.287/A measuring 22 acres 18 guntas which is the suit property came to be retained by the said Eshwaramma. It was also contended that the Eshwaramma continued in possession of the said property till her death. However, there were some discrepancy in the mutation entries and as such the name of Muddangouda continued in the record of rights. It was also contended that earlier the name of Eshwaramma was introduced along with the name of one Muddangouda in the cultivators column and the name of one Basavaraj came to be deleted, who died about two years back leaving behind his son Murali and his wife Narsamma. Taking advantage of these hollow entry, the defendants started obstruction in peaceful possession and enjoyment of the suit land and therefore the plaintiff who is the husband of Eshwaramma was constrained to file suit for declaration of his title as well as consequential relief of injunction.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>This Court by order dated 23.04.2010 admitted the appeal and the following substantial question of law was formulated. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Whether the lower appellate Court was justified in holding that Section 15(2) of The Hindu Succession Act was attracted in respect of the suit property and the same was allotted to the share of the wife of the plaintiff under a partition deed?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>11.<span style=\"white-space:pre\">	</span>The short point on the question of law that emanates in the present second appeal is regarding the nature of the acquisition of the property by deceased Eshwaramma. The Trial Court as well as the first appellate Court have come to the conclusion that though there was a partition among the father of Eshwaramma and her brothers thereby the suit property came to be allotted to the share of Eshwaramma, it amounts to inheritance and therefore in view of the exception carved out in Section 15(2) of Hindu Succession Act, after the demise of Eshwaramma the property would revert back to her siblings, but not on the plaintiff. It is relevant to note that the relationship between the plaintiff and deceased Eshwaramma and that Eshwaramma died intestate and issueless is not disputed by anybody.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>17.<span style=\"white-space:pre\">	</span>Thus, it is evident that by registering the memorandum of partition, they have given effect to the partition they entered into between them. They have declared that the property fallen to their respective shares would be absolute property belonging to them and the rights and interests have also been relinquished. Such kind of oral partition recorded in the form of memorandum of partition is permissible under the Hindu Law. Therefore, it is evident that by virtue of memorandum of partition, the parties agreed that the shares allotted to them will be enjoyed as an absolute property. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>18.<span style=\"white-space:pre\">	</span>Now the question is whether the partition as per the Ex.P1 has to be construed to be inheritance. In a considered opinion of this Court, it is not possible to hold that the acquisition of the property by virtue of Ex.P1 by the deceased Eshwaramma cannot be construed to be a inheritance within the meaning of Section 15(2) of the Hindu Succession Act. Though the provisions of Section 15(2) do not use the word intestate succession, the word used being inheritance, it has to be construed in the narrow sense as discussed by Andhra Pradesh High Court in Bobballapati\'s case. Therefore, it is evident that deceased Eshwaramma had acquired the property on the basis of an instrument i.e. Ex.P1 by way of partition and such partition cannot be construed to be an acquisition by way of inheritance. It is also pertinent to note that the legislature has used the word inheritance in the light of the intestate succession and Section 15(2) carved out and exception to the general rule mentioned in Section 15(1) of the Act. Therefore, the acquisition of the property by a female Hindu either by Will, Gift will also include the acquisition by way of a partition in the family.   Once there is a partition and properties have been divided by metes and bounds, it becomes absolute property of such sharer. If the sharer had any surviving heirs at the time of partition, the property may become the joint family property of the acquirer and his family members. Therefore, the Ex.P1 cannot be construed to convey the property by way of inheritance at any stretch of imagination.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>19.<span style=\"white-space:pre\">	</span>It is also to be noted that the provisions of Section 15(2) of the Hindu Succession Act deal with inheritance from the parental family of a female Hindu. Such inheritance cannot be by virtue of a instrument, but it is by way of intestate succession only. Under these circumstances combined reading of the interpretation of Section 15(2) of Hindu Succession Act coupled with the Ex.P1 memorandum of partition would go to show that the deceased Eshwaramma had become an absolute owner of the property and after her demise, the property would devolve by way of general succession under Section 15(1), but not as provided under Section 15(2) of the Act. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>20.<span style=\"white-space:pre\">	</span>For these reasons, the substantial question of law raised by this Court is answered in the negative.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>21.<span style=\"white-space:pre\">	</span>Soon after the partition as per Ex.P1, the concerned registering authority should have entered the name of Eshwaramma in respect of the Sy.No.287 and if it has not been done, it is only an error on their part.    It is not in dispute that 4 acres 20 guntas of the surplus land was surrendered to the Government and the remaining portion of the land was renumbered as a Sy.No.287/A. The said portion of a land in Sy.No.287/A was owned by the deceased Eshwaramma and after her death, it would devolve by way of succession and as such the plaintiff herein would acquire the rights held by Eshwaramma at the time of her death. Therefore it has to be declared that the plaintiff become owner of the property bearing Sy.No.287/A soon after the death of deceased Eshwaramma by way of intestate succession. If the revenue records do not reflect the name of the plaintiff, it is for the revenue authority to make necessary rectifications in the revenue records based on the declaration of the ownership rights of the plaintiff by this Court. Therefore it is not necessary for this Court to give specific directions to the revenue authority as claimed by the plaintiff. , </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>22.<span style=\"white-space:pre\">	</span>It is also necessary to note that either the Trial Court or the first appellate Court have not taken pains to look into the averments made in Ex.P1, memorandum of partition.   The memorandum of partition at Ex.P1 clearly and categorically mentioned that the sharers thereof are the absolute owners of the property. Both the Courts below did not critically examine the provisions of Section 15(2) of the Hindu Succession Act vis-a-vis the Ex.P1. They went under the presumption that a partition deed do not create the rights, but it only recognizes that inheritance of the property. It is pertinent to note that the inheritance of the property need not be the metes and bounds and only the rights are inherited. If it is testatory disposition in whatever mode it may be, it over rides the rule of intestate succession and therefore the impugned judgment is not sustainable under law. Hence, in the light of the discussions made above, the appeal deserves to be allowed.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>The appeal is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '596b3f76021a108aea4bd7f47d2e8b18.jpeg', 'ceffdad6b49b3ba96dbfeb50b71b9ad5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-21', 1, '', '', '2023-03-20 15:23:30', '2023-03-21 03:22:32'),
(2817, 'aiBcpoGv4FpNuBFUEusXh0w3s', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Petition for anticipatory bail is NOT maintainable once accused appears through his Advocate and gets exemption from appearance. He can seek only regular bail. Karnataka High Court.', '<p><span style=\"font-weight: bolder;\">Ramesh vs State&nbsp;<br></span></p><p><span style=\"font-weight: bolder;\">Criminal Petition 9975 of 2021 decided on 21 January 2022.</span></p><p><span style=\"font-weight: bolder;\">Justice H.P. Sandesh</span></p><p><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">This petition is filed under Section 438 of Cr.P.C. praying to enlarge the petitioner/accused on bail in the event of his arrest in FOC No.51/2020-21 (Case No.05/2020-21) registered by Deputy Range Forest Officer, Gauribidanur Range, Gauribidanur now pending in PCR No.56/2020 on the file of Principal Civil Judge &amp; JMFC., Gauribidarnur, for the offences punishable under Sections 2, 9, 50 read with 51 of the Wild Life&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(Protection) Act, 1972.</span><span style=\"font-weight: bolder;\"><br></span></p><p><span style=\"font-weight: bolder;\">6. Having heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the State, the points that would arise for the consideration of this Court are:</span></p><p><span style=\"font-weight: bolder;\"><i>Whether Section 438 Cr.P.C., can be invoked once the petitioner appeared through the Counsel and sought for exemption and the same was allowed?</i></span></p><p><span style=\"font-weight: bolder;\">7.<span style=\"white-space: pre;\">	</span>Having heard the respective counsel and considering the material available on record, it is not in dispute that a&nbsp; private complaint is filed as envisaged under the special enactment. It is the case of the prosecution that the respondent has seized three number monitor lizard and three number gray francolin, in the house of the petitioner - Ramesh in the said colony. It is also not in dispute that after issuance of summons, which has been served on the petitioner herein, he had appeared through Counsel and an exemption was sought under Section 205 of Cr.P.C., instead of Section 317 of Cr.P.C., and the same was also allowed by the Trial Court, he remained absent thereafter and NBW was issued against him. It has to be noted that nowhere in the petition has stated that the counsel was engaged before the Trial Court and sought for an exemption and the appearance through counsel has been suppressed by the petitioner.&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">colony. It is also not in dispute that after issuance of summons, which has been served on the petitioner herein, he had appeared through Counsel and an exemption was sought under Section 205 of Cr.P.C., instead of Section 317 of Cr.P.C., and the same was also allowed by the Trial Court, he remained absent thereafter and NBW was issued against him. It has to be noted that nowhere in the petition has stated that the counsel was engaged before the Trial Court and sought for an exemption and the appearance through counsel has been suppressed by the petitioner.</span></p><p><span style=\"font-weight: bolder;\">8.<span style=\"white-space: pre;\">	</span>The learned counsel appearing for the petitioner in support of his arguments, he contend that upon even though the petitioner had appeared through his Counsel, he can maintain the petition under Section 438 of Cr.P.C., and engaging the counsel and appearing through the Counsel will not take away the rights of approaching the Court by invoking Section 438 of Cr.P.C.</span></p><p><span style=\"font-weight: bolder;\">9.<span style=\"white-space: pre;\">	</span>The learned counsel appearing for the petitioner in support of his arguments, he relied upon the judgment of the&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Apex Court in the case of Niranjan Singh and another v. Prabhakar Rajaram Kharote and others reported in AIR 1980 SC 785, wherein, the Apex Court discussed with regard to the custody where the accused had appeared and surrendered before the Sessions Judge, the Judge would have jurisdiction to consider the bail application as the accused would be considered to have been in custody within meaning of Section 439 of Cr.P.C., and no dispute with regard to the fact that once he appeared and surrendered before the Court, it amounts to a custody and he maintain a petition under Section 439 of Cr.P.C., and in the judgment also Apex Court interpreted the word “custody”.</span></p><p><span style=\"font-weight: bolder;\">10.<span style=\"white-space: pre;\">	</span>The learned counsel also relied upon the judgment of the Apex Court in the case of Directorate of Enforcement v. Deepak Mahajan and another reported in AIR 1994 SC 1775, wherein the words ‘arrest’, ‘custody’ and ‘powers’ under the Act discussed. The Apex Court has also observed that whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go wherever he pleases. When used in the legal sense in connection with criminal offences, an ‘arrest’ consists in the taking into custody of another person under authority empowered by law for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. No doubt, the Apex Court in both the cases discussed with regard to the meaning of custody and the word ‘arrest’. But in the case on hand, the Court has to look into the aspect of whether the petitioner can seek an anticipatory bail once he appeared through counsel before the Trial Court and sought for an exemption. The Apex Court in Niranjan Singh’s case (supra), held that when the accused appeared and surrendered that he has been in custody and hence the judgment will not come to the aid of the petitioner.</span></p><p><span style=\"font-weight: bolder;\">11.<span style=\"white-space: pre;\">	</span>This Court would like to refer to the judgment of this Court in the case of S.R. Nagaraj v. State of Karnataka reported in 2011 SCC OnLine Kar 3301, wherein, this Court has observed that when a private complaint has been lodged and after investigation charge-sheet has been filed, when the petitioner after service of summons has appeared before the Court through an Advocate and has filed an exemption application. The petitioner instead of seeking bail before the Trial Court has approached this Court under Section 438 of Cr.P.C., which is not maintainable. The issue involved in the matter before this Court is also similar to the facts of the case. In this case also, the petitioner appeared through counsel and sought for an exemption and the said exemption application was also allowed and permitted to appear him through counsel and once the Trial Court permitted the petitioner to appear through his Counsel and allowed the application, the petitioner cannot invoke Section 438 of Cr.P.C., and can invoke Section 439 of Cr.P.C., if he does not appear before the Court and whether he had appeared through Advocate or physically, is not the question and once availed the benefit before the Trial Court appearing through counsel and sought for an exemption and the same has been entertained, question of invoking Section 438 of Cr.P.C., again does not arise.</span></p><p><span style=\"font-weight: bolder;\">12.<span style=\"white-space: pre;\">	</span>This Court also would like to refer to the order of this Court in the case of K. Somasekhar v. State of Karnataka reported in 2015 SCC OnLine Kar 8412, wherein also similar circumstances arises. This Court in paragraph No.3 referring to the judgment of this Court in the case of Venkatachalaiah and Others v. State of Karnataka, by Kadugodi Police, Bengaluru and others reported in ILR 2003 KAR 3985, and the order in Criminal Petition No.23/2013, held that once the accused appeared before the Trial Court and thereafter on account of his absence on any later date warrant is issued by the Court for deliberate absence is concerned, the remedy of anticipatory bail under Section 438 Cr.P.C. is not available to such person. However, liberty is reserved to the petitioner to file necessary application before the Trial Court for recalling the issuance of NBW.</span></p><p><span style=\"font-weight: bolder;\">13.<span style=\"white-space: pre;\">	</span>This Court also would like to refer to the Division Bench Judgment of this Court in Venkatachalaiah’s case (supra), wherein, discussed with regard to Sections 438(1) and 438(3) of Cr.P.C., and also held that even after filing of charge-&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sheet also, the accused can approach the respective Courts invoking Section 438 of Cr.P.C., but categorically held that in paragraph No.27 that in the normal course where warrant is issued in pursuance of filing charge-sheet or issuance of summons and non-appearance of the party, the remedy under Section 438(1) of Cr.P.C., is available. It is further observed that however, we would like to emphasis that where in a criminal proceeding a party has already appeared once or more than one date and thereafter does not appear in the Court, the Court in such circumstances issues non-bailable warrant and the said warrant issued is in view of the defaulting conduct on the part of the accused and in such cases a petitioner cannot invoke the jurisdiction of the Court under Section 438(1) of Cr.P.C. and he is bound to obey the court order or warrant by first appearing before the Court and than by satisfying the Court as to the sufficient cause for his absence, pray for bail under Section 439 of Cr.P.C.</span></p><p><span style=\"font-weight: bolder;\">14.<span style=\"white-space: pre;\">	</span>But in the case on hand, it is not in dispute that the petitioner advocate and also filed an application under Section 205 of Cr.P.C., instead of 317 of Cr.P.C., seeking an exemption for the day. It is also not in dispute that the said application was allowed. Once an application seeking an exemption was allowed, the petitioner again cannot invoke Section 438 of Cr.P.C., and instead of filing an application for recalling the warrant issued by the Court for non-appearance has approached this Court and also the Trial Court. Apart from that, the appearance of the petitioner before the Trial Court has been suppressed before this Court and nowhere in the petition has stated that he had appeared through the Counsel and only on perusal of the order of the Trial Court, it is clear that he had appeared through the Counsel and exemption application was allowed but he did not appear before the Court. Hence, NBW was issued. When such being the factual aspects of the case, once he appeared through the Court, whether it is through Counsel or personally, he cannot seek again anticipatory bail. The very contention of the learned counsel for the petitioner is that the petitioner appeared before the Trial Court through an Advocate is not amount to custody or an arrest, cannot be accepted and he was permitted to appear<span style=\"white-space: pre;\">	</span>had<span style=\"white-space: pre;\">	</span>appeared before the Trial Court through an&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">through Counsel and once permitted to appear through counsel he cannot contend that he had not appeared physically. The petitioner legally permitted to appear and once he has been permitted to appear legally he cannot contend that he was not appeared before the Trial Court and hence petition under Section 438 of Cr.P.C., is not maintainable.</span></p><p><span style=\"font-weight: bolder;\">15.<span style=\"white-space: pre;\">	</span>The Apex Court also given interpretation with regard to the custody and for invoking Section 439 of Cr.P.C., and not for Section 438 of Cr.P.C., and also with regard to the meaning of arrest discussed in Directorate of Enforcement v. Deepak Mahajan and another ‘s case (supra), and not the question of arrest before this Court also. In the case on hand when the private complaint was filed, the learned Magistrate took the cognizance and issued the summons. In pursuance of the said summons he appeared through the Counsel before the Trial Court. Once he had appeared before the Trial Court he cannot seek for an anticipatory bail again invoking under Section 438 of Cr.P.C.&nbsp;</span></p><p><span style=\"font-weight: bolder;\">16.<span style=\"white-space: pre;\">	</span>This Court does not want to consider the matter on merits, whether he is entitled for anticipatory bail or not since the very maintainability is questioned before this Court and this Court comes to the conclusion that the petition under Section 438 of Cr.P.C., is not maintainable and an option is given to the petitioner to approach before the Trial Court by filing necessary application for recalling of the warrant issued against him as held by this Court in K.Somasekhar’s case (supra), and seek appropriate relief.</span></p><p><span style=\"font-weight: bolder;\">(i) The bail petition is dismissed as not maintainable.</span></p><p><span style=\"font-weight: bolder;\">(ii) The petitioner is given liberty to approach the Trial Court by filing necessary application for recalling the warrant issued against him.</span></p>', '7f3e22570044c01d02600da8d8301466.JPG', '98802a849aa0d30fb44fcc889a595683.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-21', 1, '', '', '2023-03-21 13:35:54', '2023-03-21 13:35:54');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2819, 'iAoV17bT8JnwBluYtGCasJPlN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act. In the event of an accident resulting in death or injury to employee, in the absence of a restrictive clause, liability of insurer cannot be limited to liability prescribed under the Employee’s Compensation Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Branch Manager Royal Sundram Alliance Insurance Company Limited Vs Murali and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.F.A. 5186 of 2017 decided on 1 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space: pre;\">	</span>The insurer is in appeal challenging the award of Rs.11,71,400/- granted as compensation to C.Murali, whose leg was amputated above the knee in an accident between 2 lorries.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>It is to be stated here that a victim of a motor vehicle accident has been conferred with the power to approach the Tribunal and seek for compensation for injuries suffered by him in respect of an accident arising out of use of the motor vehicle. The law prescribes that the motor vehicle is required to be insured by the owner so as to satisfy any liability of third party. In that view of the matter, the presence of the driver in an adversary litigation arising out of the Motor Vehicles Act, 1988 (for short ‘MV Act’) would not be strictly essential. If, it was the case of the insurer that the accident occurred due to the negligence of the other vehicle, it was incumbent upon the insurer to prove this contention. Merely making an assertion in its objections that the other vehicle was negligent, would not be proof of the assertion.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>The other argument of the learned counsel that in the alternative if compensation is to be payable, it will have to be limited to the amounts prescribed in EC Act, cannot also be accepted.  Section 147(2) of the MV Act no doubt exempts the insurer from insuring the liability arising out of a death or an injury of an employee, except as provided under EC Act.   However, that does not mean that the insurance company cannot accept liability for an employee without any such pre-condition.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>As pointed out, the insurance policy which is the bedrock of the entire contract between the owner and the claimant, does not expressly state that in the event of an accident to an employee, the liability of the insurer would stand restricted to that under the EC Act. It is also to be stated that under Section 147 of the MV Act prescribes the minimum requirement of an insurance policy and that would not be an indicative of the entitlement of the insurance company to accept the limits of indemnity. The arguments therefore that the liability will have to be restricted to that under the EC Act, cannot be sustained and same is rejected. Consequently, the appeal of the insurance company is dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>As far as the compensation is concerned, it is not in serious<span style=\"white-space:pre\">	</span>dispute that the claimant<span style=\"white-space:pre\">	</span>has suffered amputation above the knee. Though the doctor has assessed the liability at 59% to the whole body, the Tribunal has taken the percentage of disability as 50%. In my view, this assessment would be improper. It is stated here that the claimant was working as a cleaner and was aged 43 years. It cannot be in dispute that in order to retain his employment as a cleaner, the use of both the legs would be essential and it would be very hard for him to secure an employment as a cleaner with just one working leg. Therefore, though the doctor has opined the disability at 50%, in my view, it would be appropriate to assess the disability at 75%.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>32.<span style=\"white-space:pre\">	</span>Thus, the claimant is held entitled to the total compensation of Rs.19,70,000/- as against Rs.11,71,400/-, along with interest at the rate of 6% per annum from the date of petition till its realization.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>The appeal of the claimant is accordingly allowed in part.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e7ea7b15bad96db55b017868cc1627e6.JPG', '8c796f569c989872a312005051fe5539.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-23', 1, '', '', '2023-03-21 15:34:46', '2023-03-23 08:32:54'),
(2820, 'bviprOkeCfqTA0cUJCEahuYMe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Right to Information Act. Second appeal under Section 19(3) of the Act by the Public Information Officer is maintainable even in the event no first appeal is preferred under Section 19(1). Karnataka High Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Public Information Officer Vs The State Information Commissioner and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 24537 of 2018 decided on 23 February 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.S. Hemalekha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The 1st respondent has dismissed the appeal\r\nfiled by the Public Information Officer on the ground that\r\nthe petitioner being the Public Information Officer cannot\r\nmaintain the second appeal under Section 19(3) of the\r\nRight to Information Act (‘RTI Act’ for short) and the\r\nappeal is not maintainable when the appeal under Section\r\n19(1) of the RTI Act is not preferred by the present\r\npetitioner and accordingly, dismissed the second appeal of\r\nthe petitioner.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Learned counsel for the petitioner would submit\r\nthat the issue in the lis is squarely covered by the decision\r\nof this Court and it is no more res integra and would\r\nsubmit that the second appeal under Section 19(3) of the\r\nRTI Act by the Public Information Officer is maintainable\r\neven in the event no first appeal is preferred under\r\nSection 19(1) of the RTI Act and relied upon the judgment\r\nof the Co-Ordinate Bench of this Court in the case of Sri.\r\nG.H. Sharanappa Vs. The Commissioner and Others\r\nin W.P. No.5474/2018 dated 18.11.2022 at paragraph\r\nNos.14 and 15 held as under</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>15. When a specific remedy is available to\r\nthe aggrieved party under the Act to prefer an\r\nappeal under sub-Section (1) and second appeal\r\nunder sub-Section (3) of Section 19, in view of\r\nspecific provision, the Commissioner is not justified\r\nin issuing the endorsement to the effect that the\r\npetitioner has not exhausted the remedy under\r\nSections 6(1) and 19(1) of the RTI Act, defeating\r\nthe very provisions of the Act. This Court accepts\r\nthe arguments advanced by the learned counsel for\r\nthe petitioner and comes to the conclusion that the\r\nappeal under sub-clause (3) of Section 19 of the\r\nAct can be filed by the petitioner and the\r\nendorsement issued by the 1st respondent is not\r\nsustainable.” </b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. In order to maintain parity, this Court is of the\r\nconsidered view that the writ petition needs to be disposed\r\nof in terms of the judgment of the Co-ordinate Bench of this\r\nCourt in W.P. No.5474/2018, dated 18.11.2022.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. The writ petition is allowed-in-part.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '85a9b2b92058ab09c3aa55c5af9eca0e.JPG', '63196a64df71d128bb60505eba8695d7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-23', 1, '', '', '2023-03-21 15:47:06', '2023-03-23 03:21:52'),
(2821, 'QozbfQlKbPhEAKr8cpdu3D1Bv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Section 125 Cr.P.C. Step mother can claim maintenance from the income of the property of her husband when she is incapable of supporting herself. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Khaleel Ul Rehman and others Vs Sharaffunnisa Muniri.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 8508 of 2022 decided on 2 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Natarajan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The case of petitioner before the trial court is\r\nthat she had married the father of the respondents before\r\nthe trial court by name Moheddin Muniri on 26.08.1989 in\r\nBhatkal on the decision of both the families after the death <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the wife of Moheddin Muniri, even though he had the\r\nchildren who are the petitioners before this Court. She\r\nfurther contended that, at the time of marriage, the father\r\nof the present petitioners had assured her that he is\r\nhaving landed properties apart from movable properties\r\nand that he will look after the respondent and she was\r\nliving in the joint family of her husband. Her husband died\r\non 30.08.1994 and his successors were the present\r\npetitioners, who are the children of Moheddin Muniri. The\r\nrespondent herein is a senior citizen, uneducated and\r\nunemployed house wife, she has no source of income,\r\nexcept Rs.4000/- earning from a rent house at Bhatkal\r\nthere is no other source of income or help to meet her\r\nnecessities. She is having a daughter who is also a\r\ndivorcee having a grand daughter who is of 3 years old.\r\nThe respondent herein is paying monthly rent of\r\nRs.12000/- at R.T. Nagar, Bengalur and she is having aged\r\nrelated problems and health issues. Therefore, she has\r\nprayed through an application under section 125 of Cr.P.C\r\nfor granting maintenance by filing the interlocutory </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">application which came to be allowed by the impugned\r\norder. The family court had granted maintenance of\r\nRs.25,000/- to the petitioner (respondent herein) at the\r\ntrial court, which is under challenge in both the petitions.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">10. The husband of the present respondent\r\n(Moheddin Muniri) has died long back, leaving behind the\r\npetitioners and respondent as legal heirs of the Moheddin\r\nMuniri. Admittedly, the respondent herein is a step mother\r\nof the petitioners. It is also an admitted fact, the\r\nrespondent had approached the family court for granting\r\nmaintenance of Rs.50,000/- wherein the family court had\r\ngranted interim maintenance of Rs.25,000/- per month\r\nbased upon the documents. The respondent also objected\r\nboth the petitions and interlocutory applications. The issue\r\narises in this cases is that, as per the contention of the\r\nlearned counsel for the petitioner, in this petition the\r\npetitioners\' step mother is not covered under section 125\r\nof Cr.P.C as she was not a natural/biological mother.\r\nTherefore, she is not entitled for any maintenance. On\r\nreading of the Section 125 (1) of Cr.P.C where the step </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">mothers are not covered under the definition in order to\r\nseek any maintenance from the step children.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. The co-ordinate bench of this Court in the case\r\nof Ulleppa and Ors., Vs Smt. Gangabai has taken a\r\nview, even the step mother can claim maintenance from\r\nthe income of the property of her husband, when she is\r\nincapable of supporting herself. On the other hand, the\r\nSpecial Act brought by the legislation namely the\r\nMaintenance and Welfare of Parents and Senior\r\nCitizens, Act, 2007 at section 9 (1)(2) where it is held\r\nas under.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>\r\n \"9. Order for maintenance.-(1) If children or\r\nrelatives, as the case may be, neglect or refuse to\r\nmaintain a senior citizen being unable to maintain\r\nhimself, the Tribunal may, on being satisfied of\r\nsuch neglect or refusal, order such children or\r\nrelatives to make a monthly allowance at such\r\nmonthly rate for the maintenance of such senior\r\ncitizen, as the Tribunal may deem fit and to pay <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the same to such senior citizen as the Tribunal\r\nmay, from time to time, direct.\"</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>on reading of the section 9 (1)(2), of the Senior Citizens\r\nAct, the maximum limit for granting maintenance was\r\nRs.10,000/- in the said Act and as per section 2 (d) of the\r\ndefinition in the said act, \"parents means, father or\r\nmother whether biological, adoptive, or step father\r\nor step mother as the case may be whether or not\r\nthe father or mother of the senior citizen\". Therefore,\r\nthe definition of step mother is not defined under section\r\n125 of Cr.p.C whether and not included in the definition of\r\nmother whereas the Maintenance And Welfare Of Parents\r\nAnd Senior Citizen Act, 2007, covers the step mother in\r\nthe definition. Such being the case, the petitioner requires\r\nto approach the tribunal under the Special Act for claiming\r\nmaintenance. However, as per the judgment of the coordinate bench of this Court in Ullappa\'s case stated\r\nsupra has held, as there are huge properties held by the\r\nhusband of the step mother of this petitioners and they are <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">having income, therefore, the step-mother is also entitled\r\nfor the maintenance.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12. Therefore, consider the circumstances of the\r\ncase the order of granting maintenance of Rs.25,000/- by\r\nthe Family Court as interim maintenance is not sustainable\r\nand the matter is required for evidence to be recorded,\r\ndocuments to be marked by the petitioner/step mother in\r\norder to show her husband is having lot of properties and\r\nthey are having income. Though the respondent is\r\nreceiving rent of Rs.4,000/- but she is having divorced\r\ndaughter and grand daughter, therefore, the petitioner\r\nrequires to agitate the same before the Family Court and\r\nalso she can claim maintenance in the Senior Citizen Act.\r\nSuch being the case, granting Rs.25000/- per month\r\nwithout recording the evidence is not sustainable.\r\nTherefore the order under challenge is liable to be set\r\naside and modified.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Accordingly, I pass the following order<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Accordingly, both the writ petition and the criminal\r\npetitioner filed by the petitioners are allowed in part.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The order of granting maintenance of Rs.25,000/- is\r\nhereby set aside and modified. <span style=\"font-size: 12pt;\">The petitioners step\r\nmother is entitled for Rs.10,000/- per month until disposal\r\nof the case of the trial court. The family court is directed\r\nto record the evidence of the parties and decide the issue\r\nand dispose of the matter in accordance with the law, by\r\ntaking into the note of Senior Citizen Act and section\r\n125 of Cr.P.C by keeping the judgment of the supreme\r\ncourt and the judgment of co-ordinate bench of this Court\r\nwhile disposing of the matter. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b2f05863d0c21ccdebd17cd633aecdfa.JPG', '9829adb87dd8e8f8546e53fee79530ce.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-23', 1, '', '', '2023-03-21 16:13:16', '2023-03-23 11:00:19'),
(2822, 'saxdztD8b29rGvgjXKaCjh981', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘’Extremely unreasonable and without justification.’’ Supreme Court expunges the remarks of Justice Sandesh of the Karnataka High Court against Seemant Kumar Singh IPS. ', '<p><b>SEEMANT KUMAR SINGH vs MAHESH PS &amp; ORS.&nbsp;<br>Arising out of Special Leave Petition (Crl,) No. 6572 of 2022)&nbsp;<br>Justice KRISHNA MURARI<br>Justice AHSANUDDIN AMANULLAH <br>Decided on 21st MARCH, 2023&nbsp;</b></p><p><b>26. The legal system in general, and the judicial system in particular, has\r\nushered into a new age of accessibility and transparency due to the adoption\r\nof virtual hearings and live telecasting of open court proceedings. These changes in the judiciary have ensured that the courts as redressal\r\nmechanisms have become more accessible to the common man than ever\r\nbefore. The limitations of physical infrastructure, that has constrained the\r\ncourts to a physical location, has often been cited as one of the main\r\nroadblocks in the path towards access to justice. This roadblock, however,\r\nhas now been cleared due to the availability of technology and the adoption\r\nof the same. This never before seen transparency in the judicial system,\r\nwhile it brings with it great benefits, it also attaches with it a stricter standard\r\nof responsibility on judges while conducting such court proceedings.\r\nRemarks passed in court, due to the live broadcasting of court proceedings,\r\nnow have ramifications that are far reaching, and as can be seen in the\r\npresent case, can cause great injury to the reputation of the parties involved.\r\nIn such a circumstance, it is essential for the courts to be extremely cautious\r\nwhile passing adverse remarks against the parties involved, and must do so\r\nwith proper justification, in the right forum, and only if it is necessary to\r\nmeet the ends of justice.\r\n</b></p><p><b>27. In light of the abovementioned discussions, not only are the adverse\r\nremarks passed by the High Court against the Appellants is liable to be\r\nexpunged, but the impugned interim order itself is liable to be quashed.\r\nAccordingly, the impugned order dated 07.07.2022 stands quashed.&nbsp;</b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>28. Further, in light of the previous order dated 18.07.2022 passed by this\r\ncourt, we presume that the bail proceedings of the Respondent No.1 stands\r\nconcluded. However, since there is no indication of the outcome of the bail\r\nproceedigs, if the same has not already been decided, we request the High\r\nCourt to expeditiously conclude the bail proceedings in accordance with law\r\non its own merits without being prejudiced or influenced by this judgment.</b></span></p><p><b>Accordingly, the appeals stand allowed.<br></b></p><p><b><br></b></p><p><br></p>', 'cc407ae77520e01b9fcde833521a26bc.jpeg', '0a4fdd8c6c91fba28b8c6fd26421293a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-21', 1, '', '', '2023-03-21 21:04:40', '2023-03-21 21:04:40'),
(2823, 'pnNSC5QZ6QfCBJSair4jKSN0j', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land acquisition notification after 19 December 2013, the date on which the 2013 Act was notified to come into force on 1 January 2014, could be issued only under the 2013 Act and not under the 1894 Act. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Yellavva Pakirappamadar and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 102950 of 2017 decided on 21 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>1. I.A.No.1/2019 has been filed by certain  other  persons whose land is sought to be acquired with an only intention to come on record since their compensation has been delayed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2. In view thereof, I am of the considered opinion that the same would not be a cause for those persons to come on record. Hence, I.A.No.1/2019 is dismissed. Consequently, I.A.No.2/2019 filed by the impleading respondents is also dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>4. Sri.Anand R Kolli, learned counsel for the petitioners would submit that the impugned notification dated 14.09.2015 which has been issued under Section 6(1) of the Land Acquisition Act, 1894 (for short, ‘1894 Act’) does not comply with the applicable law inasmuch as the said notification having been issued after the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, ‘Act of 2013’) having come into force the authorities concerned ought to have complied with the provisions of the  said Act. The same not having been done, mere issuance of the notification under Section 6(1) of the of 1894 Act is not proper. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>5. Sri.Shivaprabhu Hiremath, learned AGA submits that the impugned notification has been issued in pursuance of the orders of this Court dated 15.07.2014 in Writ Petition Nos.105945-5990/2014 wherein this Court while dealing with the earlier notification dated 31.12.2013 which had been issued under Section 17 of the of 1894 Act had held that there were no grounds made out for issuance of notification under Section 17 and had  treated  the said notification as one under Section 4(1) of 1894  Act and permitted the petitioners to file their objections which were to be considered by the SLAO for enquiry under Section 5(A) by the SLAO and award to be passed thereafter. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>6. It is submitted that though notification had been issued under Section 6(1) of 1894 Act,  the  calculation of compensation and the award would be passed in terms of Act of 2013 and therefore there is nothing wrong with the notification. He submits that the notification having been issued on 31.12.2013, the other requirements under the Act of 2013 namely social impact assessment and rehabilitation reassessment award etc., are not required to be followed. On these grounds, he submits that the writ petition is required to be dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>8. A perusal of the documents indicates that the earlier notification under Section 4(1) of 1894 Act is dated 31.12.2013 but has been published in the Karnataka Gazette only on 12.05.2014. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>9. In terms of Sub-section (3) of Section 1 of the Act of 2013, the said Act of 2013 was to come into force on such date as the Central Government may by notification in the official gazette appoint. S.O.No.3729(E) had been issued on 19.12.2013 whereby the Central Government appointed the 1st January, 2014 as date on which the Act was come  into force. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>10. Thus, from the above it is clear that before the date of publication of 4(1) notification on 12.05.2014, the Act of 2013 had come into force on 01.01.2014. Once the Act of 2013 had come into force, the question of publication of a notification under Section 4(1) of 1894 Act on 12.05.2014 would not at all arise.Though the notification is dated 31.12.2013 i.e. a day earlier to coming into force of Act of 2013 the fact remains that the notification remained  a  draft notification until publication thereof in the Gazette on 12.05.2014. This Court is not expressing any opinion as regards how a notification dated 31.12.2013 had been issued just a day prior to the Act of 2013 coming into force. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>11. Furthermore, S.O.No.3729(E) had been published  vide notification 13011/01/2013/LRD on 19.12.2013, the authorities were very well aware as on  19.12.2013 itself that the Act of 2013 would come into force from 1st January, 2014. Thus, even taking this aspect into account no notification could have been issued or framed or drafted under Section 4(1) of 1894 Act on 31.12.2013.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>12. This aspect was not brought to the notice of this Court while dealing with Writ Petition Nos.105945- 5990/2014 and as such has not been adverted to in the order dated 15.07.2014. If it had  been brought  to the notice, the order might have been different.  Be that as it may, this Court has noticed the said issue and as such has to deal with it. In such background, it now cannot lie for the State to take shelter under the order of this Court dated 15.07.2014 and contend that the impugned notification has been issued in pursuance of the  orders passed by this Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>13. What is to be noticed even in that matter the State had not been able to make out any ground for invoking emergency powers under Section 17 of the 1894 Act and the notification was treated as one under Section 4(1) of 1894 Act instead of under Section 17 of 1894 Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>14. In view of the above facts as afore observed and reasoned, no notification could have been issued under Section 4(1) post 19.12.2013. Here a notification is stated to have been issued on 31.12.2013 but however published on 12.05.2014 which could not have been done. Any notification would have had to be issued in terms of the Act of 2013 by following the procedures prescribed thereunder. As afore observed, this Court is not adverting to the intentions or otherwise of the State  in resorting to the above actions</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space: pre;\">	</span>The writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(iii)<span style=\"white-space: pre;\">	</span>Liberty is however reserved to the State to initiate such acquisition proceedings as may be necessary by following necessary procedure under the Act of 2013. Needless to say the petitioners would have an opportunity to object to the same in accordance with law. </b></p>', '3370372d677d9ab06167676246308305.jpeg', 'a514a78b82f8d47f7608626418a53d3d.pdf', 'x7SZjzjafQLUTlVcMl06Cjfgy', '2023-03-24', 1, '', '', '2023-03-23 12:28:42', '2023-03-24 13:36:13');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2833, 'MOtU3D8iHW6jgStwsEk163Hwq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Succession Act. Grant of occupancy rights in favour of a woman member of the joint family under the Karnataka Land Reforms Act cannot be considered as her absolute property under Section 14. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gopi and others Vs Sridhara Shetty and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R.S.A 2377 of 2017 decided on 10 March 203.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of partition is that, father of the plaintiff, defendant Nos.2 to 6 and husband of the defendant No.1, Arai Shetty was a chalageni tenant in respect of plaint ‘A’ schedule property. In the advent of Karnataka Land Reforms Act, Arai Shetty has filed declaration under Form No.7 before the Land Tribunal and accordingly, the Land Tribunal granted occupancy right in his favour. Now, the father of the plaintiff, Arai Shetty is no more. Upon using the funds of the joint family properties, item No.1 of the plaint ‘B’ schedule property improvements were made in the kumki land by the defendant No.1 and on the advent of Section 94-B of KLR Act, the defendant Nos.1 and 4 have filed application under Form No.53 for and on behalf of all the members of the family and accordingly, the Land Grant Committee, Bantwal granted item Nos.3 and 4 of the plaint ‘B’ schedule property in favour of defendant Nos.1 and 4 respectively. The said grant is for and on behalf of all the members of the family of late Arai Shetty. Hence, all the parties to the suit have got equal 1/7th share in item Nos.3 and 4 of the plaint ‘B’ schedule property. The plaintiff is one of the co-owner of plaint ‘B’ schedule property after the death of Arai Shetty. The plaintiff and the defendant Nos.1 to 6 are in joint and constructive possession of the plaint ‘B’ schedule property. When the matter stood thus, the plaintiff on 15.09.2006 through his relative applied for RTC of plaint ‘B’ schedule property and he was shocked to see that the name of the defendants were entered in the RTCs of plaint ‘B’ schedule property and then only, the plaintiff came to know that there was an alleged partition entered between defendant Nos.1 to 6. He applied for copy of the partition and found that without considering the right of the plaintiff, a registered alleged partition deed was entered between the defendant Nos.1 to 6 which was done behind the back of the plaintiff and the plaintiff was not aware about the said partition deed, until he obtained the certified copy of the said deed. It seems that the defendants have taken advantage of the fact that the plaintiff is residing at Mumbai for his livelihood. The said partition deed is not acted upon, as the plaintiff is one of the co-sharer of the plaint ‘B’ schedule property and also has not signed the said partition deed. Hence, the same has no legal sanctity in the eye of law. It is contended that there is residential house situated in plaint ‘B’ schedule property worth of Rs.2,00,000/-. All the improvements are made in the plaint ‘B’ schedule property from the income of plaint ‘B’ schedule property. The plaint ‘B’ schedule properties are the Hindu Undivided Co-parcenary properties of the plaintiff and the defendants. Inspite of demand made by the plaintiff to partition the property and issued legal notice, the defendants have given false reply. Hence, the suit is filed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>After service of summons, the defendants appeared and defendant Nos.1, 3 and 5 have filed the written statement and the defendant No.6 also filed the written statement which was adopted by the defendant No.2 by filing a memo. The defendant Nos.1, 3 and 5 in their written statement have admitted that late Arai Shetty, the husband of the defendant No.1 and the father of the plaintiff and defendant Nos.2 to 6 was the chalageni tenant and occupancy right was granted in favour of Arai Shetty in respect of item No.1 of plaint ‘B’ schedule property and item No.2 of the plaint ‘B’ schedule property has been granted on darkasth by Tahsildar, Bantwal in favour of late Arai Shetty and denied all the other averments made in the plaint and contended that item Nos.1 and 2 of plaint ‘B’ schedule property is devolved from late Arai Shetty and the plaintiff and the defendants have got right over the same. But, item Nos.3 and 4 were Government land and the same was in unauthorized occupation of the defendant Nos.3 and 4. Accordingly, the defendant No.1, who was in unauthorized occupation of item No.4 had filed application seeking grant of item No.4 and accordingly, the same was granted in his favour.   Hence, the item No.4 is the self-acquired property of the defendant No.1 and the plaintiff and the defendants have no right over the same. The defendant No.4 was in authorized occupation of item No.3 of plaint ‘B’ schedule property and after the advent of KLR Act, the defendant No.4 filed application seeking regularization of the said land and the Land Tribunal, granted occupancy right in his favour and hence, the same is a self-acquired property of the defendant No.4 and the plaintiff and other defendants have no right over the said property. Item Nos.3 and 4 of the properties were never in possession of late Arai Shetty or plaintiff or other defendants and late Arai Shetty, the plaintiff or other defendants never made any improvements therein. Hence, they are not entitled for any relief as sought.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>This Court, while admitting the second appeal formulated the following substantial questions of law: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Whether the Courts below have committed error in holding that grant made by the Government in respect of item Nos.3 and 4 of plaint ‘B’ schedule property in favour of defendant Nos.1 and 4 enures to the benefit of joint family ? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>Whether the Courts below have committed error in not considering Section 14 of Hindu Succession Act while holding that the properties granted in favour of defendant No.1 is also liable for partition ?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>Having considered the substantial questions of law framed by this Court, the grounds urged in the appeal and also the submissions made by the respective counsel, this Court has to exercise the powers under Section 100 of CPC., that whether both the Courts have committed an error in holding that the grant made by the Government in respect of item Nos.3 and 4 of the plaint ‘B’ schedule property in favour of defendant Nos.1 and 4 enures to the benefit of the joint family.   Having considered the material on record, no dispute that item Nos.1 and 2 grants are made in favour of the father – Arai Shetty. The only dispute is in respect of item Nos.3 and 4 and defendant Nos.1 and 4 claims that those grants are individual grants but, both the Trial Court as well as the First Appellate Court did not accept the contention of defendant Nos.1 and 4 that those grants are the individual grants and not in favour of the family. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>The other substantial question of law is with regard to both the Courts have committed an error in not considering Section 14 of the Hindu Succession Act while holding that the properties granted in favour of defendant No.1 is also liable for partition. Both substantial questions of law involve the consideration of grant in favour of defendant Nos.1 and 4. The defendant No.1 is the mother of the plaintiff and other defendants. Defendant No.4 is the brother of the plaintiff and defendant Nos.2 to 6. In order to come to a conclusion whether the grant is in their individual capacity or in favour of the family, the Court has to consider the material on record, particularly, Form No.53 filed before the authority seeking the grant.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>The Trial Court as well as the First Appellate Court also taken note of both oral and documentary evidence available on record and rightly taken note of the documents of Exs.P26 to P29 pertaining to item Nos.3 and 4 of the suit schedule properties. Hence, I do not find any error committed by the Trial Court as well as the First Appellate Court in coming to the conclusion that item Nos.3 and 4 of plaint ‘B’ schedule property granted enures to the benefit of the joint family. Hence, I answer the first substantial question of law as ‘negative’.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space:pre\">	</span>The other substantial question of law is whether the Courts below have committed an error in not considering Section 14 of the Hindu Succession Act. No doubt, the learned counsel for the respondents relied upon Section 230 with regard to the separate property and property acquired in any of the following ways is the separate property of the acquirer; it is called “self- acquired” property.   The learned counsel brought to notice of this Court that the Government grant, when the property granted by the Government to a member of a joint family is the separate property of the donee, unless it appears from the grant that it was intended for the benefit of the family.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24.<span style=\"white-space:pre\">	</span>The main contention is that when the properties are granted in favour of the mother, it will become the absolute property of the mother and Section 14 of the Hindu Succession Act comes into operation and the judgment relied upon in the case of Smt. Gowramma (Since deceased) by her LRs. v. Rangappa reported in 2015(4) KCCR 3041, wherein, an observation is made that whatever properties granted to female Hindu becomes her absolute properties as per Section 14 of the Hindu Succession Act and when it is granted in the name of female member, there is no question of blending the same as joint family properties.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25.<span style=\"white-space:pre\">	</span>The First Appellate Court also taken note of the fact that in Form No.53 submitted by defendant No.4, it is stated that in the year 1991, she had filed Form No.50 for grant and it was rejected on the ground that the land is a Kumki land and the plaintiff has produced Form No.53 submitted by Padmanabha Shetty and so also taken note of item No.4. The First Appellate Court also taken note of the application filed by the first defendant at Ex.P29, which also reveals similarity in respect of defendant No.4 and also observed that the first defendant did not come to Court and purposely she has given the power of attorney to defendant No.4. Though it is contended that it is the separate grant and the same is the separate property and the self – acquisition, but no evidence is placed before the Court. Admittedly, they were having the family properties i.e., item Nos.1 and 2 and the same was under their cultivation and no other avocation either to defendant No.1 or to defendant No.4 and also taken note of the admission given by D.W.1 with regard to they were cultivating the item Nos.1 and 2 of the properties and from those properties, they were getting two crops and were also getting the income from areca nut, coconut and paddy crops and come to the conclusion that the property was cultivated by the family out of the income of item Nos.1 and 2 and given the reasoning that, just because it was granted in the name of first defendant, it will not loose the character of the joint family properties and the properties are also at the distance of 20 to 30 feet away from item No.1 and considered the material available on record both oral and documentary evidence. Merely because the land granted in favour of the mother, it cannot be contended that she became an absolute owner of the property and the Court has to take note of the material available on record, particularly, the documents-Exs.P28 and P29, wherein, while seeking for grant also claim that the unauthorized occupation from the last 30 years and all of them are living together and she was also not having any independent income to have the grant in her favour and instead of in the application it is specifically mentioned that earlier she has sought for grant by filing an application under Form No.50 in the year 1990-91 and subsequently, the earlier application was not considered and rejected and a fresh application was given in the year 1999 in Form No.53. Thereafter, the grant was made; hence, the very contention of the learned counsel for the appellants that both the Courts have committed an error in not invoking Section 14 of the Hindu Succession Act cannot be accepted. Merely because grant was made in favour of the mother it cannot be construed as it is the absolute property of the woman and the Court has to take note of the material on record and what is the basis for granting the land and the family was in unauthorized cultivation and making an application by the mother cannot take away the right of other joint family members. When the cultivation made by the family members as well as the income derived from the family was utilized for obtaining grant in the name of the mother, I do not find any force in the contention of the learned counsel for the appellants that both the Courts have failed to take note of Section 14 of the Hindu Succession Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26.<span style=\"white-space:pre\">	</span>The contention of the learned counsel appearing for the appellants is that item Nos.3 and 4 cannot be a partible property for the members of the family cannot be accepted. Both the Courts considering both oral and documentary evidence placed on record and given the anxious consideration and the documents speak about the truth and not the oral evidence of the witnesses and based on the documentary evidence rightly come to the conclusion that the suit schedule properties are amenable to the partition among the members of the joint family. Hence, I do not find any force in the contention of the learned counsel for the appellants that both the Courts have committed an error. I have already pointed out that in the partition deed – Ex.D2, the plaintiff is not the party and the contention is that he has given consent while registering the document and not challenging the deed also cannot be accepted since the document – Ex.D2 not contains the signature of the plaintiff. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>27.<span style=\"white-space:pre\">	</span>The other contention is that the father of the plaintiff has not filed an application cannot be a ground to decline the right claimed by the plaintiff and it is emerged in the records that D.W.1 categorically says that when he made an application he was aged about 33 years and also he categorically admits that when his father passed away, he was aged about 33 years. The very contention is that the grant was made in favour of the person, who is in occupation and the same also cannot be accepted, the documents – Exs.P26 to P29 reveals otherwise that they are in occupation from more than 30 years and the very contention that the grants are not in favour of the family cannot be accepted.  Hence, I do not find any merit in the appeal. Accordingly, substantial questions of law are answered. <br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The appeal is dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '440658f502f4752c99439a5ea611bffa.JPG', '4857d55bf15d9f35f2f06d74ce6f62bc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-27', 1, '', '', '2023-03-24 14:04:35', '2023-03-27 03:22:12'),
(2837, 'a0c5CgYUNzT0INgrLUybbieDa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sales Tax. Transfer of right to use vehicles on hire is ‘sale’ and the transferor of the right to use vehicles is a ‘dealer’ thus attracting payment of sales tax. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State of Tripura and another Vs Chandan Deb and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6500 of 2008 decided on 24 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice Krishna Murari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Feeling aggrieved and dissatisfied with the impugned\r\ncommon judgment and order dated 29.08.2007 passed by\r\nthe Gauhati High Court by which the Division Bench of the\r\nHigh Court has dismissed the writ appeals preferred by the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">State of Tripura which were against the judgment and\r\norder passed by the learned Single Judge declaring Rule\r\n3A(2) of the Tripura Sales Tax Rules, 1976 (hereinafter\r\nreferred to as the ‘TST Rules’) as ultra vires to the Tripura\r\nSales Tax Act, 1976 (hereinafter referred to as the ‘TST Act’)\r\nand partly allowing the appeals preferred by the original\r\nwrit petitioners quashing and setting aside that part of the\r\njudgment and order passed by the learned Single Judge by\r\nwhich it was held that the original writ petitioners were\r\nliable under Section 3AA of the TST Act, the State of\r\nTripura has preferred the present appeals.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2. That the Tripura Sales Tax Act, 1976 was enacted in the\r\nyear 1976 containing provisions for the levy of tax on sale\r\non certain goods in Tripura. Section 3A provided for tax on\r\ntransfer of property in goods involved in execution of works\r\ncontract. Section 3AA provided for deduction of tax at the\r\ntime of payment. Section 44 provided for power to make\r\nRules. In exercise of the Rule making power under Section\r\n44 of the TST Act, the Tripura Sales Tax Rules, 1976 came </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to be enacted. Rule 3A(2) provided for deduction of tax at\r\nsource equal to 4% on transfer of rights to use goods.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.4 All the writ petitions were resisted by the State contending\r\ninter alia that the transactions involved amounted to ‘Sale’\r\nwithin the meaning of 2(g)(ii) of the TST Act and that as per\r\nthe second proviso of Section 3(i) of the TST, Tax at 4% of\r\nthe valuable consideration, shall be payable on transfer of\r\nthe right to use any goods for any purpose and, hence, Rule\r\n3A(2), prescribed merely a mode of recovery of sales tax\r\nwhich is otherwise due and payable and thus Rule 3A(2) is\r\nvalid</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.7 During the pendency of the writ appeals, the TST Act has\r\nbeen replaced by the Tripura VAT Act, 2004 w.e.f.\r\n01.04.2004. Therefore, as such the dispute is for the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">period prior to 01.04.2004.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2.8 By the impugned common judgment and order the Division\r\nBench of the High Court has dismissed the appeals of the\r\nState and has allowed the appeals of the original writ\r\npetitioners – suppliers and has held that Rule 3A(2) is ultra\r\nvires TST Rules and TST Act. The Division Bench of the\r\nHigh Court has also set aside that part of the judgment of\r\nthe learned Single Judge where it was held that the\r\nsupplier – original writ petitioners are liable under Section\r\n3AA of the TST Act.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. At the outset, it is required to be noted that while granting\r\nthe leave to appeal this Court has framed the following\r\nquestion of law which reads as under:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>“Whether Sub-rule (2) of the Rule 3A of the TST\r\nRules can be declared ultra vires being contrary to\r\nthe provisions of the ‘TST Act’, though there is\r\nexpress proviso in Section 3(1) for levy of 4% Sales\r\nTax on any transfer of the right to use any goods\r\nfor any purpose?<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>8.3 Section 3 of the TST Act can be said to be the charging\r\nSection and the liability to pay the tax shall be as per <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 3 of the TST Act. As per Section 3(1) of the TST Act\r\nevery dealer in taxable goods shall pay a tax on his\r\nturnover at the rate specified in column (3) of the Schedule.\r\nAs per the proviso to Section 3(1) as inserted by Tripura\r\nSales Tax (Fourth Amendment) Act, 1987 w.e.f. 12.05.1987\r\nthe rate of tax on any transfer of the right to use any goods\r\nfor any purpose (whether or not for a specified period) shall\r\nbe 4%. The ‘Sale’ is defined under Section 2(g) and it\r\nmeans any transfer of property, in goods for cash or\r\ndeferred payment or other valuable considerations, and\r\nincludes any transfer of the right to use any goods for any\r\npurpose for cash, deferred payment or other valuable\r\nconsideration, and such delivery or transfer of any goods\r\nshall be deemed to be a sale of those goods by the person\r\nmaking the delivery or transfer and purchase of those\r\ngoods by the person to whom such delivery or transfer is\r\nmade. Thus, any transfer of right to use any goods\r\nincluding the vehicles shall be deemed to be a ‘sale’ as\r\ndefined under Section 2(g)(ii). The word ‘Dealer’ has been </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">defined under Section 2(b) of the TST Act and it means any\r\nperson who sales taxable goods. As observed hereinabove\r\nthe sale of taxable goods shall be as per Section 2(g) of the\r\nTST Act. Therefore, on combine reading of Section 3 read\r\nwith Section 2(b) & 2(g) of the TST Act any transfer of the\r\nright to use any goods (including the vehicles) shall be\r\ndeemed to a ‘sale’ and the transferor of the right to use any\r\ngoods/vehicles can be said to be a dealer and therefore\r\nliable to pay the tax at the rate of 4% on any transfer of the\r\nright to use any goods as per proviso to Section 3(1).\r\nTherefore, the liability to pay the tax at the rate of 4% on\r\nany transfer of right to use any goods shall be under\r\nSection 3(1). Therefore, the submissions on behalf of the\r\nrespondents – suppliers/transferers that as there is no sale\r\nor transfer of the goods and that they are not registered\r\nwith the TST Act and therefore, the liability to pay the tax\r\nat 4% does not arise cannot be accepted. As observed\r\nhereinabove the liability to pay the tax shall be on the\r\ntransferer who transfers the right to use any goods as per </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">proviso to Section 3(1) read with Section 2(b) and 2(g) of the\r\nTST Act.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. Now next question which is posed for consideration before\r\nthis Court would be whether Rule 3A(2) of the TST Rules\r\nand the memorandum issued by the Government to deduct\r\nthe tax at 4% and the bills to be paid to the transferers can\r\nbe said to be ultra vires to TST Act is concerned, it appears\r\nthat the High Court has held the said provision as ultra\r\nvires by observing that there is no such provision for tax\r\ndeduction at source under the TST Act and therefore, the\r\nRule cannot go beyond the Act. The aforesaid view taken\r\nby the High Court is absolutely fallacious. Rule 3A(2) can\r\nbe said to be a recovery machinery/mechanism. What Rule\r\n3A(2) provides is only for a machinery/mechanism where\r\nthe person buying the goods is required to deduct the tax\r\nat source and deposits the same with the Revenue. It does\r\nnot in any manner change the chargeability of the tax or\r\nliability of the tax which is under Section 3(1) of the TST\r\nAct read with Section 2(b) & 2(g) of the TST Act.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9.1 As observed hereinabove the rules are framed in exercise of\r\nRule-making power under Section 44 of the Act and in that\r\nview of the matter and as the liability to pay the tax on\r\ntransfer of right to use the goods shall still be continued\r\nunder proviso to Section 3(1), mere providing for mode of\r\nrecovery and/or providing for machinery/mechanism to\r\nrecover the tax to be paid by the transferer/supplier from\r\nthe person buying the goods deducting the tax at source\r\nand depositing the same with the Revenue cannot be said\r\nto be ultra vires to TST Act and the Rules as observed and\r\nheld by the High Court. At the cost of repetition, it is\r\nobserved and held that Rule 3A(2) does not in any manner\r\nchange the chargeability of the tax or liability to pay the\r\ntax. Therefore, the High Court has fallen in error in\r\nmisinterpreting Rule 3A(2) of the TST Rules and has fallen\r\nin error in declaring Rule 3A(2) of the TST Rules ultra vires\r\nto TST Act and the High Court has materially erred in\r\nquashing and setting aside the memorandum issued by the\r\nState Government requiring the hirers namely the ONGC <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and the GAIL to deduct an amount equivalent to 4% out of\r\nthe respective bills of the suppliers of the vehicles.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>10. In view of the above and for the reasons stated above,\r\npresent appeals succeed. The impugned common\r\njudgment and order passed by the Division Bench of the\r\nHigh Court and that of the common judgment and order\r\npassed by the learned Single Judge declaring Rule 3A(2) of\r\nthe Tripura Sales Tax Rules, 1976 as ultra vires to the\r\nTripura Sales Tax Act, 1976 and quashing and setting\r\naside the memorandum of 1992 issued by the State\r\nGovernment requiring the hirers to deduct an amount of\r\ntax at 4% out of the respective bills of the suppliers of the\r\nvehicles are hereby quashed and set aside. Necessary\r\nconsequences shall follow.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Present appeals are accordingly allowed. No costs.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '010deda25f996ff516fcbe8e7c9b5359.jpeg', 'af4f659ebb51e9904ea776f1fc90696e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-27', 1, '', '', '2023-03-26 14:25:57', '2023-03-27 09:16:15'),
(2827, '00l4CcLmCGmUMpAH29LiAwyGa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Judgment of acquittal passed in a complaint case can be challenged before the High Court under Section 378(4) Cr.PC and an appeal under Section 378(2) Cr.PC before the Sessions Court is  not maintainable. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Sunshine Tubes Pvt Ltd Vs The Assistant Commissioner of Central Excise.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.R.P. 845 of 2014 decided on 9 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Brief facts of the case as revealed from the records that may be necessary for the purpose of disposal of this petition are, the petitioner herein is a private limited company engaged in the manufacture and clearance of tubes and flaps of different sizes situated at Baikampady Industrial Area, Mangaluru, represented by its Director. On 15.10.1991, the raiding squad of the respondent had visited the factory of the petitioner and noted that the manufacturing activities of inner tubes of rubber tyres of different sizes were done in the factory of the petitioner. It is the case of the respondent that the petitioner had wrongly claimed the benefit of the Notification bearing No.188/86 CE dated 03.03.1986 with an intention to evade payment of duty, and it is the further case of the respondent that in order to evade Central Excise Duty, the petitioner misused the exemption given under the Central Excise Act, 1944 (for short, \'the Act\') and thereby evaded payment of excise duty to the tune of Rs.13,98,261/- to the respondent-Department. It is under these circumstances, a private complaint under Section 200 Cr.PC was filed by respondent before the I Addl. Civil Judge & CJM, Mangaluru (hereinafter referred to as \'the Trial Court\') as provided under Section 9A of the Act alleging that the petitioner had committed the offences punishable under Sections 9(1)(b), 9(1)(bb), 9(1)(bbb) of the Act and Rules 9(1), 173B, 173G & 173F of the Central Excise Rules, 1944 (for short, \'the Rules\'), which are all non-cognizable offences.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>The only point that arises for consideration in this revision petition would be,</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>\"whether the appeal filed by the respondent against the judgment of acquittal passed by the learned Magistrate in a complaint case was maintainable before the Sessions Court under Section 378(2) of Cr.PC?\"<br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>The undisputed facts of the case is, that the respondent had filed a private complaint under Section 200 Cr.PC before the Trial Court against the petitioner herein alleging that the petitioner had committed the offences punishable under the provisions of the Act and Rules. The offences alleged in the complaint were all non-cognizable offences. Since the complainant was a public servant, the learned Magistrate, after receipt of the said complaint, had exempted recording the sworn statement of the complainant and after taking cognizance for the offences that were alleged in the complaint, had issued summons to the accused/petitioner. After appearance of the petitioner in the said proceedings, since he pleaded not guilty and claimed to be tried, charge was framed against the petitioner for the offences punishable under Sections 9(1)(b), 9(1)(bb), 9(1)(bbb) of the Act, which are undisputedly non-cognizable offences. The Trial Court had, therefore, tried the petitioner for the charged offences in a case instituted upon private complaint filed by the respondent and acquitted the petitioner of the alleged offences</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>From the reading of the aforesaid provision, it is seen that Section 378(4) of Cr.PC provides for an appeal as against an order of acquittal passed in any case instituted upon a complaint and such an appeal would lie only to the High Court and if only the High Court grants special leave to appeal, the complainant can maintain an appeal against the order of acquittal.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>The material on record in fact would go to show that objection was raised regarding the maintainability of the appeal by the petitioner before the Sessions Court itself. A reading of the answer to point no.3 by the Sessions Court would go to show that the objection regarding maintainability of the appeal was raised by the petitioner and reliance was placed on the judgment of the Hon\'ble Apex Court in the Subhash Chand\'s case. However, the Sessions Court had failed to properly appreciate the said judgment and has erroneously held that the appeal filed by the respondent under Section 378(2) of Cr.PC as against the judgment of acquittal passed by the Magistrate on a private complaint was maintainable. This approach of the Sessions Court, in my view, is totally illegal.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>The Hon\'ble Supreme Court in Subhash Chand\'s case supra has clearly held that as against the order of acquittal passed by the Magistrate in a complaint case, the only remedy available to the complainant irrespective of the fact that it is a private person or a public servant or the State or State Authority, is to file an appeal under Section 378(4) of Cr.PC to the High Court. Under the circumstances, I am of the considered view that the appeal filed by the respondent before the Sessions Court under Section 378(2) of Cr.PC as against the judgment of acquittal passed by the Trial Court in C.C.No.35/1997 was not maintainable and the judgment of conviction and order of sentence passed by the Sessions Court in Crl.A.No.410/2008 being without jurisdiction, is a nullity in the eye of law, and therefore, the same is liable to be set aside.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Accordingly, the following order: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>The revision petition is allowed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '69bfac4748ddab256f476291294335f0.jpeg', '4a137f586b34873e0eaff564d2f4bf79.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-24', 1, '', '', '2023-03-23 14:31:50', '2023-03-24 03:23:13');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2828, 'm3QivhoPb5fMOM1GDS7ga076n', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Industrial Disputes Act. Proportionality of the punishment cannot be gone into by the Tribunal while considering the application of the employer under Section 33(2)(b). Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Bata India Limited Vs C Veerabhadrappa.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 43854 of 2011 decided on 10 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice C.M. Poonacha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The facts are that admittedly, the Respondent-Workman (for short the \'Workman\') joined the services of the Management w.e.f. 01.09.1991. He was served with a   charge sheet cum show cause notice dated 16.12.1998. The Workman submitted his explanation on 21.12.1998 denying the charges levelled against him. The enquiry was conducted and vide report dated 19.04.2001, it was held that the Workman was guilty of the charges alleged against him. Thereafter, the Workman was issued with a second show cause notice dated 27.04.2001 along with a copy of the finding of the enquiry officer and sought for his response. The Workman submitted his explanation to the second show cause notice on 10.5.2021. Vide order dated 22.05.2001, the Workman was dismissed from service, consequent to which, application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short \'Act\') was filed by the Management before the Tribunal, seeking approval of the action of the Management in dismissing the Workman from the services of the Company. Vide order dated 24.05.2008, the Tribunal held that the Domestic Enquiry conducted was fair and proper. Vide order dated 12.4.2011, the Tribunal rejected the application filed by the Management under Section 33(2)(b) of the Act. Being aggrieved, the present Writ Petition is filed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>I have considered the submissions made by both the learned Counsel and perused the material on record. The question that arises for consideration is,<i> \"Whether the order dated 12.4.2011 passed by the Tribunal is liable to be interfered with?\"<br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>13.6<span style=\"white-space:pre\">	</span>In the case of Achar M.R.,, a Co- ordinate Bench of this Court was considering a case where employees of a Bank held demonstration in front of the administrative office of the said Bank, consequent to which, disciplinary proceedings were initiated against the Workmen who participated in the strike and the said Workmen were dismissed from service which order was upheld by the Appellate Authority. However, the same was modified by the Revisional Authority whereunder they were continued in service by reducing the basic pay by two stages for a period of eight years and denied back wages and consequential benefits. A Coordinate Bench of this Court, noticing that the alleged misconduct was not in contravention of \"misconduct\" as defined under the relevant clause of bipartite  settlement and also  noticing that 23 Workmen were issued identical charge sheets and the enquiry against all the Workmen except the concerned employee was dropped and noticing that the role of the concerned Workman was not different from other Workman and held that the punishment levied was discriminatory and ordered for reinstatement of workman with all consequential benefits.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.8<span style=\"white-space:pre\">	</span>In the case of Bagalkot Cement Company, a co-ordinate Bench of this Court was considering a case where the workman had participated in a strike as a result of which they were removed from service. This Court, upon noticing hat the act of the workman do not amount to misconduct in terms of the standing orders, held that the workman were falsely charged and the action of the management was a clear case of unfair labour practice. Hence, the workman was reinstated into service with back wages with continuity of service and all consequential benefits. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.9<span style=\"white-space:pre\">	</span>In the case of Bata India Limited , a Coordinate Bench of this Court was considering a case where the Management had issued a charge sheet against the workmen for various misconducts and upon finding of the disciplinary authority that they were guilty of charges they were dismissed from service and the Management filed serial applications under Section 33(2)(B) of the Act seeking approval for proposal of dismissal. The Tribunal found that the enquiry was not fair and proper and permitted the Management to adduce the evidence afresh over proof of charge and upon considering the same, dismissed the application filed by the Management. The said decision was challenged before the Division Bench which upheld the order of the learned Single Judge and the same was also upheld by the Hon\'ble Supreme Court. However, the said case will not aid the case of the workman as the fact situation is different from the present case, inasmuch as, in the said case the Tribunal held that the enquiry was not fair and proper and when parties led evidence to prove the charges before the Tribunal, it was held that the charges were not proved.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>In thevcasevof<span style=\"white-space:pre\">	</span>John D\'souza<span style=\"white-space:pre\">	</span>v. Karnataka State Road Transport Corporation, the Hon\'ble Supreme Court after consideration of its earlier judgments in the case of Martin Burn Ltd.,, Punjab National Bank Ltd., v. Workmen, Automobile Products of India Ltd., v. Rukmaji Bala, Mysore Steel Works (P) Ltd., v. Jitendra Chandra Kar, Lalla Ram v. DCM l Works Ltd.,, Cholan Roadways Ltd., v. G.Thirugnanasambandam1 has considered the scope and ambit of the proceedings under Section 33(2)(b) of the Act vis-à-vis Section 10(1) of the Act and after a detailed discussion has, inter alia, held as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>\"37. The Labour Court or Tribunal, therefore, while holding enquiry under Section 33(2)(b) cannot invoke the adjudicatory powers vested in them under Sections 10(i)(c) and (d) of the Act nor can they in the process of formation of their prima facie view under Section 33(2)(b), dwell upon the</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>proportionality of punishment, as erroneously done in the instant case, for such a power can be exercised by the Labour Court or Tribunal only under Section 11-A of the Act.\"</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>It is clear from the aforementioned position of law that the proceedings under Section 33(2)(b) of the Act are of a limited scope and the same is not required to be exercised akin to the proceedings under Section 10 of the Act when the workman initiates the proceedings challenging the action initiated against him.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>It is forthcoming from the award of the Tribunal that it has proceeded to appreciate the entire case of the parties to consider whether the workman was victimized for his legitimate action. It has further proceeded to compare the case of the workman with the case of the other workman in respect of whom action was taken by the Management. It is forthcoming that the Tribunal has also recorded a finding that \"the very approach of the enquiry officer that the workman has not proved his case is not correct\".  The Tribunal has erred in not noticing that the various judgments relied upon by the workman with regard to the aspect of punishment were judgments rendered in a proceedings under Section 10 of the Act. The Tribunal has, by interfering with the quantum of punishment, exercised its jurisdiction akin to Section 11(A) of the Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\"><br></font>18.<span style=\"white-space:pre\">	</span>The wording of Section 11(A) of the Act is clear that the power under the said provision can be exercised where \"an industrial dispute<span style=\"white-space:pre\">	</span>has been referred to ……………. for adjudication ……….\" . Having regard to the wording of Section 11(A) of the Act and as held by the Hon\'ble Supreme Court in the case of M/s. Firestone Tyre & Rubber Co. of India (Pvt.) Ltd., and John D\'souza , it was not open to the Tribunal to exercise jurisdiction under Section 11(A) of the Act in proceedings under Section 33(2)(b) of the Act. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>19.<span style=\"white-space:pre\">	</span>Hence, the finding of the Tribunal that the punishment is grossly disproportionate to the proved charges is beyond the scope of proceedings under Section 33(2)(b) of the Act and the same being erroneous, is set aside.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22.<span style=\"white-space: pre;\">	</span>Admittedly, the Workman in the present case has not challenged the order of the Management dismissing him from service. In view of the fact the Tribunal, vide its order dated 24.5.2008 has held that the enquiry has been conducted in a fair and proper manner and having regard to the fact that it has been held in the enquiry that the charges in the present case against the workman has been proved and also in view of the fact there is no specific averment in the plea made by the Workman regarding victimization, the finding of the Tribunal that the Workman has been victimized is erroneous and is set aside.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 23.<span style=\"white-space: pre;\">	</span>In view of the aforementioned, the Tribunal has exceeded its jurisdiction as contemplated under Section 33(2)(b) of the Act in interfering with the punishment imposed in respect of the Workman. The question framed for consideration is answered in the affirmative and the relief sought for in the </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Writ Petition is required to be granted.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space:pre\">	</span>The Writ Petition is allowed</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2c230fe077c7d5027003bb79580bdbae.JPG', 'd3939e1f709ba8e3bf341779835fda63.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-25', 1, '', '', '2023-03-23 15:58:38', '2023-03-25 03:21:43'),
(2829, 'oZWbpDJDUYnHBbrlSRGSGomk7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Investigation agencies must communicate final report prepared by them to the first informant as per Section 173(2)(ii) of Cr.P.C. Karnataka High Court directs DG and IGP of the State to issue necessary instructions.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Prasanth Hegde Vs State of Karnataka<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 18864 of 2021 decided on 13 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Natarajan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>This petition is filed by the petitioner-first informant under Articles 226 and 227 of the Constitution of India to direct the I Additional CMM Bengaluru to take cognizance against the body corporates i.e., State Bank of India and Punjab National Bank in C.C.No.11073/2018 for the offences punishable under Sections 120B, 403, 408, 409, 447, 381, 420 read with Section 37 of IPC.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>The case of the petitioner is that the petitioner is the first informant who filed a complaint against the accused persons for the offences punishable under Sections 120(B), 408, 409, 420, 468, 471, 474, 36, 37 of IPC and FIR was registered in Crime No.486/2015 by the Ashoknagar Police Station, Bengaluru making various allegations against the Bank Officers and Officials of the SBI and Punjab National Bank for misappropriation of fund and cheating the complainant. The matter was referred to the CID police for investigation and the respondent-CID police filed the charge-sheet against the officials of the above said two Banks. But the Investigating Officer while filing the final report has not included the Bank as accused, but filed the charge-sheet only against the Bank Officials where petitioner is before this Court for issuing direction to the trial Court to take cognizance against the Bank officials together with the Bank.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>Having heard the arguments and on perusal of the records, the learned Senior counsel for the petitioner has relied upon the judgment of the Apex Court in the case of Bhagawant Singh v. Commissioner of Police and another reported in (1985) 2 SCC 537. On perusal of the judgment of the Hon\'ble Supreme Court, it is clear that once the Investigating Officer, investigated the matter, a duty cast upon the Investigating Officer to intimate the first informant about filing of the final report and if it is communicated, then the informant can come to know about the investigation done by the Investigating Officer on his first information for the purpose of taking further course of action and follow up the case. Admittedly, in this case there is no communication sent by the Investigating Officer to the first informant-complainant regarding submitting the final report. The provision of Section 173(2)(ii) of Cr.P.C. is defined as under:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>\"(ii) The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.\"</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>In the above said provision of Section 173(2)(ii) of Cr.P.C., the Legislature used the word \'shall\' to communicate the final report to the first informant. Of course, the manner of communication has to be issued by the State Government, but, no such information sent to the informant by the Investigating Officer. 9.<span style=\"white-space:pre\">	</span>Now, the present contention of the learned counsel for the petitioner is that when the allegation made against the Bank and Bank Officials, where the bank is corporate body and without the corporate body, the criminal proceedings cannot be proceeded against the officials of the Bank. Therefore, the Hon\'ble Supreme Court has taken similar view in the cases of Aneeta Hada vs. M/s. Godfather Travels & Tours Pvt. Ltd. and Sunil Bharti Mittal vs. Central Bureau of Investigation reported in (2015) 4 SCC 609. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>Of course, the Court can implead the Bank as a co-accused or additional accused by invoking Section 319 of Cr.P.C. or implead the company or a bank as accused under Section 305 of Cr.P.C. Even otherwise, the Police Officer may be directed to file additional charge-sheet under Section 173(8) of Cr.P.C. against the corporate body, since the accused persons are vicariously liable for the offence committed by the Bank. Therefore, the trial Court before taking cognizance ought to have applied the mind to direct the Investigating Officer to implead the corporate body as accused and proceed to take cognizance, otherwise, the proceedings cannot be sustainable against the officials of the Bank without impleading the Bank as accused. Therefore, the petition filed by the petitioner deserves to be allowed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>It is also deem fit and proper to this Court to direct the DG and IGP of the State of Karnataka to instruct all Investigating Officers of the Investigation Agencies to communicate the final report prepared by them to the first informant as per Section 173(2)(ii) of Cr.P.C. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>Accordingly, the petition is allowed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7e699248f02d1d9e09d21ebaba191364.JPG', 'de38407612a6d6555a720bacff7fa27a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-24', 1, '', '', '2023-03-23 16:07:47', '2023-03-24 11:43:21'),
(2830, 'plMHXL87CNfV93WUZuZKlVQCj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Land Reforms Act, 1961. Proceedings under Sections 79A and 79B can NOT be initiated after the agricultural land is converted to non-agricultural purpose. Karnataka High Court. ', '<p><span style=\"font-weight: bolder;\">Hemalatha vs The State of Karnataka and Others<br>Writ Petition 11678 of 2021 decided on 20 September 2021<br></span><span style=\"font-weight: bolder;\">Justice Suraj Govindaraj. </span></p><p><span style=\"font-weight: bolder;\">2. The grievance of the petitioner is that despite the property, which is subject matter of the above proceedings, having been converted for non- agricultural purposes on 12.03.2014 vide  Annexure  – B and the Sale Deed having been executed on 15.05.2014, the proceedings  contemplating  violation of Section 79(A) and (B) of the Karnataka Land Reforms Act, 1961 were initiated on 14.11.2019.</span></p><p><span style=\"font-weight: bolder;\">4. The provision of Section 79A and 79B of the KLR Act would only be attracted so long as the land is an agricultural land and violation contemplated of purchase of an agricultural land by a non- agriculturist. Once land is converted, the Assistant Commissioner would not have any jurisdiction to initiate any proceedings under Section 79A or 79B of KLR Act.</span></p><p><span style=\"font-weight: bolder;\">5. In the present case admittedly the property was converted for non-agricultural purpose on 12.03.2014 and thereafter sold on 15.05.2014, when </span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the sale took place the property was converted as non-agricultural land which disentitles the Assistant Commissioner from exercising any power under the provisions of Section 79A and 79B of the KLR Act.</span></p><p><span style=\"font-weight: bolder;\">6. In view thereof, the proceedings insofar as petitioner is concerned in RRT:LRF:CR:39/2019-20  including the order dated 29.01.2020 are hereby quashed.</span></p><p><span style=\"font-weight: bolder;\">7. Accordingly, the writ petition is disposed of.</span></p>', '9c5a3f5128430e8344d3af6e7d1ca077.JPG', 'db51edf54e8e204a75511ae2b34341d5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-24', 1, '', '', '2023-03-23 16:17:05', '2023-03-24 08:08:59'),
(2832, '5zOJumwfagio7RWAEXgWxtBTM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Consider & dispose applications for premature release of life convicts without any loss of time. Committee meetings to be held once in two months.” Karnataka High Court orders grant of parole to the convict till his application is disposed. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Omkarmurthy Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 1300 of 2023 decided on 2 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is before this Court seeking a direction by issuance of a writ in the nature of mandamus directing respondents 1, 3 and 4 to place the case of the petitioner before the Life Convicts Premature Release Committee (‘the Committee’ for short), the 2nd respondent. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>Facts adumbrated are as follows: The petitioner gets embroiled in a crime which ends up in his conviction in S.C.No.52/2008. On the registration of a crime for the offences punishable under Sections 201, 302 and 376 of the IPC, the petitioner was convicted and sentenced to undergo imprisonment for life. By then, the petitioner was already in custody from 23.11.2007 itself, and continued to be in custody till the learned Sessions Judge convicted him for the aforesaid offences on 12.10.2010. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>The petitioner files a criminal appeal before this Court in Crl.A.No.184/2020, wherein, this Court acquitted the petitioner of the offence punishable under Section 376 of the IPC and affirmed the conviction for other offences under Sections 201 and 302 of the IPC.  The petitioner continues to be in prison and is now in prison for the last 16 years. The jail authorities have also issued certificates favouring the petitioner observing that his conduct has been exemplary throughout. On all the aforesaid basis, the petitioner seeks his premature release / remission on the ground that he has been a life convict for over 16 years and 10 months along with the entitlement of remission before the jail authorities. What drives the petitioner to this Court is that, the case of the petitioner is not placed before the Committee - the second respondent by the fourth respondent.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>The afore-narrated facts are not in dispute. Therefore, they require no iteration. The issue in the lis lies in a narrow compass with the relief sought being only to place the case of the petitioner before the second respondent - Committee without any loss of time with regard to the entitlement of the petitioner for premature release in terms of law. It is not in dispute that the petitioner has been knocking at the doors of the Jail Authorities since 22.07.2022. The representation of the petitioner has not been placed before the Committee, only on the ground that the Committee has not met. It is now close to 8 months that the Committee has not met. In these circumstances, it becomes germane to notice the orders passed by the Apex Court from time to time concerning the release of the life convicts.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>What are the guidelines to be applied for such release is also considered by the Apex Court in the case of SHARAFAT ALI VS. STATE OF UTTAR PRADESH</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>7.<span style=\"white-space:pre\">	</span>The order which has been passed by the State government in the present case is bereft of an application of mind to relevant circumstances bearing on whether the petitioner should be released prematurely. The order contains general observations to the effect that the release may result in resentment on the side of the victim, but this is a general consideration which would govern virtually all criminal offences where a person stands convicted of a serious offence, as in the present case under Section 302 read with Section 34 of the IPC. The order does not contain any reference whatsoever to whether the petitioner possesses any prior criminal history, save and except for the present case. Similarly, the order is completely silent on the conduct and behavior of the petitioner in jail and after he was convicted of the offence. The relevant considerations bearing upon whether the release of the petitioner would pose a danger to society have not been adverted to. There has to be a considered application of mind to the facts of each case. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>8.<span style=\"white-space: pre;\">	</span>In the circumstances, the order which has been passed rejecting the application of the petitioner for premature release suffers from a complete and patent non-application of mind. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>9.<span style=\"white-space: pre;\">	</span>For the above reasons, we allow the petition by setting aside the impugned order dated 30 July 2021 passed by the Government of Uttar Pradesh. We direct that the application of the petitioner for premature release shall be reconsidered on the basis of the policy as it stood on 17th January 2005, when the petitioner was convicted of an offence under Section 302 read with Section 34 of the IPC. The application shall be considered afresh without the petitioner being required to file any fresh application for premature release. An order shall be passed after taking into account all relevant facts and circumstances including those which have been adverted to above. This exercise shall be completed within a period of two months from the date of this order.”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The Apex Court holds that the guidelines policy that prevailed at the time when the accused gets convicted is what would become applicable for consideration of the application for premature release. Therefore, there can be no ambiguity for application of guidelines for consideration of the application for premature release of the life convicts, on their merit, for such release.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Therefore, the Apex Court in all the aforesaid orders, have clearly directed the respective State Governments and Director General of Prisons of those States to take necessary steps to ensure that the applications for premature release of life convicts to be considered and disposed, without any loss of time. The Apex Court has also admonished that it would be constrained to take recourse to coercive action, if recalcitrance is displayed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>On a coalesce of what the Apex Court has considered in all the afore-quoted judgments, what would unmistakably emerge is that cases of life convicts who are entitled for consideration of their premature release, should be considered without any loss of time. In the case at hand, the Committee has not met for the last 8 months which has resulted in plethora of cases being filed before this Court seeking a mandamus only to place those applications before the committee in the ensuing meeting. When the meeting would ensue the State itself is not aware, as no concrete date is being divulged for the committee to meet. In the afore-said circumstances, I deem it appropriate to direct the State Government to henceforth direct the 2nd respondent/Committee to meet at least 6 times a year – once in two months, so that those application/s are considered at the right time on their individual merit and cases being filed only to place the application/s before the committee would be obviated. Till such time that the application of the petitioner would merit consideration before the committee, he would be entitled to be released on parole, in accordance with law, for a period that the Authorities of the jail would prescribe or till such time, the committee would meet and consider the case of the petitioner.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Writ Petition is disposed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '71c20866c5e2a22c6c7487ee0ff112be.jpeg', '997261ae75f68fc8261b758f0042defa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-24', 1, '', '', '2023-03-24 13:06:54', '2023-03-26 16:37:58'),
(2834, 'FZfTeCzrbxckO5C7i0BZQNoQe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Excise Act. Compliance of Sections 53 and 54 i.e. securing search warrant or to record the grounds to dispense with the search warrant is mandatory. Non-compliance of the same would vitiate the conviction order. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nagaraja Vs State by Excise Inspector of Police.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.R.P 931 of 2014 decided on 13 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner, who is the sole accused has preferred this Criminal Revision Petition under Section 397 of Code of Criminal Procedure, 1973 (for short \'Cr.P.C\') challenging the judgment and order of conviction and sentence passed by the Court of II Additional Civil Judge & JMFC, Bhadravathi (for short the \'Trial Court) in C.C.No.1271/2010 dated 04.12.2012 and the judgment and order passed by the Court of Fast Track, Bhadravathi (for short the \'Appellate Court\') in Crl.A.No.3/2013 dated 22.09.2014.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>The petitioner was charged before the Trial Court for the offences punishable under Section 32 and 38(A) of Karnataka Excise Act, 1965 (hereinafter referred to as the \'Act\'). It is the case of the prosecution that on 08.08.2009 on receipt of credible information, PW4 along with his staff had raided the house of the petitioner in which he was also running a small canteen/hotel and had found that the petitioner was in possession of 12 bottles of 180 ml whisky, which he had kept for sale. These contraband articles were seized under mahazar by PW4 in the presence of panchas and thereafter the said articles and the petitioner were produced before PW.3, who had registered FIR against the petitioner for the aforesaid offences based on report received from PW4.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>The Trial Court thereafter heard the arguments addressed on both the sides and by its judgment and order dated 04.12.2012 convicted the petitioner for the offences punishable under Section 32 and 38(A) of the Act and sentenced him to undergo Rigorous Imprisonment for 1 year and to pay fine of Rs.10,000/-, in default to pay fine undergo Simple Imprisonment for 3 months. Being aggrieved by the said judgment and order of conviction, the petitioner had filed Crl.A.No.3/2013. The Appellate Court by its judgment and order dated 22.09.2014 had dismissed the appeal filed by the petitioner. It is under this circumstance, the petitioner is before this Court in this revision petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>Section 53 of the Act provides for securing a search warrant from the jurisdictional Magistrate for the purpose of holding search of any place if the competent officer has got reason to believe that the intoxicant/contraband articles are kept or concealed in the said place or for arrest of any person whom he has a reason to believe had committed the offences mentioned in the said section. Section 54 of the Act provides for power to search without warrant. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>From reading of Section 54 of the Act, it is very clear that in the event if the competent officer has reason to believe that offence mentioned in the said section is likely to be committed or is being committed and that a search warrant cannot be obtained without giving opportunity to the offender to escape, he may after recording the grounds for his belief proceed to search the place and also arrest the accused found in the said place whom he has reason to believe to be guilty of such offence as mentioned in the said section. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>In the present case, admittedly the requirement of Section 53 of the Act has not been complied with by PW.4 before carrying out search and seizure in the house of the petitioner and arresting him. Ex.P5 is the document which is said to have been prepared by PW4 in compliance of requirement of Section 54 of the Act. During the course of his deposition, PW4 has not stated anything about he preparing Ex.P5 prior to he conducting search and seizure of petitioner\'s property. A perusal of Ex.P5 would go to show that said document is prepared after the search and seizure was conducted by PW.4. Therefore, requirement of compliance of Section 54 of the Act is not established by the prosecution. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>The compliance of Section 53 and 54 of the Act is mandatory in nature. The Hon\'ble Supreme Court in the case of K L SUBBAYYA vs. STATE OF KARNATAKA - AIR 1979 SCC 711 has held that compliance of Section 53 and 54 of the Karnataka Excise Act is mandatory and non compliance of the same would vitiate the conviction order passed against the accused .<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>Undisputedly, the prosecution has not examined any independent witness in the present case. During the course of search and seizure, the prosecution has not complied with statutory requirement by complying Section 53 and 54 of the Act. In a case where the statutory requirement which is mandatory in nature is not complied with by the prosecution and where the prosecution has failed to give proper reason for non-examination of independent witness and for not securing independent panchas, it would be highly unsafe to place reliance on the prosecution witness who are official witnesses for convicting the accused . The Trial Court as well as the Appellate Court has failed to appreciate these aspects of the matter and have erred in convicting the petitioner for the offences for which he was charged. Under the circumstance, the impugned judgment and order of conviction and sentence, which is questioned by the petitioner in this revision petition cannot be sustained.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Criminal Revision Petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7552fae9494b1da50b753b92804837d3.jpeg', '6176216d0a1fbac29bc3ababaca61885.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-27', 1, '', '', '2023-03-24 14:54:18', '2023-03-27 12:21:36');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2835, 'TW2RUNUQzj7KeRGkWWcSztyJ3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Wife demanding separate residence does not always amount to cruelty for grant of divorce. There must be determination to put an end to marital relation and cohabitation. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>S. Shyamala @ Kathyayani Vs B.N Mallikarjunaiah.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Miscellaneous First Appeal 3352 of 2016 decided on 14 March 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Alok Aradhe and Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This miscellaneous first appeal under Section 19 of the Family Courts Act, 1984 has been filed by the wife challenging the judgment and decree passed by the court of IV Additional Principal Judge, Family Court at Bangalore, dated 15th March 2016 in M.C.No.3584/2011 wherein the petition filed under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (for short hereinafter referred to as “the Act”) by the husband was allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Brief facts of the case that would be relevant for the purpose of disposal of this appeal are: The marriage of the appellant-wife with the respondenthusband was solemnized on 24.03.2002 at Gurukula Kalyana Mantapa, Tiptur as per Hindu rites and customs and from the said wedlock, they have a female child, who was born on 18.06.2003. The respondent had approached the Family Court, Bangalore, seeking dissolution of the marriage contending that the appellant was demanding for setting up a&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">separate house immediately after the marriage. It is his case that he lived with his widowed mother and a younger brother in his house and he had the responsibility to look after them and therefore, he had rejected the demand of the appellant for setting up a separate house. It is contended by him that the wife was in a habit of quarreling with his family members for no reason and she used to leave the matrimonial house and go to her sister’s house and mother’s house without informing him or his mother or brother. Because of this behaviour and conduct of the wife, his life was made miserable. It is further contended by him that in the month of January 2007, the appellant-wife without informing him left the matrimonial home along with the child and thereafterwards she did not return back, though he had made several requests to her. He thereafterwards got issued a legal notice dated 12.04.2007 and the appellant issued a untenable reply to the same. Subsequently she lodged a criminal complaint against him and his relatives for the offences punishable under Sections 498-A, 323, 504, 506 read with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961, in Crime No.61/2007 at Nonavinakere Police Station, Tumkur and the respondent and his relatives were charge sheeted and tried for the alleged offences and subsequently they were acquitted in the said case. It is his further case that on 01.06.2009, wife had voluntarily left the child at his place of work and thereafterwards he had admitted the child in a private school and the appellant-wife had kidnapped the child from the School on 23.06.2009 and in this regard, on the basis of a complaint lodged by the School Authorities, a case was registered against the wife for the offence punishable under Section 363 of IPC in Crime No.171/2009. It is his definite case that the wife had no intention to live with him and perform her matrimonial obligation and there are no possibilities of re-conciliation and accordingly he had sought for dissolution of the marriage on the ground of cruelty as well as desertion.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The appellant-wife had entered appearance in the said proceedings before the Family Court and had filed her statement of objections admitting the relationship but denied all other allegations made against her by her husband. She had contended in her statement of objections that during her stay in the matrimonial home, her husband used to ill-treat her and also assault her for having not brought sufficient dowry from her parents house. She had further contended that on 17.01.2007, her husband assaulted her and demanded to bring a sum of Rs.2,00,000/- from her parents house and when she refused and pleaded her inability to bring the said amount, her husband and his relatives forcibly threw her out of the matrimonial house and therefore, she was constrained to live in her parents’ house thereafterwards. Though a request was made by her and her parents to take her back, all efforts made in this regard were in vain and though several panchayats were convened by her parents, all such efforts were also in vain and it is only thereafterwards, she had lodged a police complaint against her husband and his relatives.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. To substantiate the case of the respondent – husband, he had examined himself before the Family Court as PW.1 and got marked 13 documents as Exs.P1 to P13. The wife had got herself examined as RW.1, however, no&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">documents were marked in support of her case. The learned Judge of the Family Court vide the impugned judgment and decree has allowed the petition filed by the respondent - husband under Section 13(1)(ia) and (ib) of the Act and the marriage between the parties solemnized on 24.03.2002 at Gurukula Kalyana Mantapa, Tiptur was dissolved by a decree of divorce. Being aggrieved by the same, the wife has preferred this appeal.</span></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5. Learned counsel for the appellant-wife submits that the learned Judge of the Family Court has erred in granting a decree of divorce since the husband had failed to prove the ground of cruelty and desertion against the wife. He submits that the learned Judge of the Family Court has proceeded to allow the petition mainly for the reason that the wife had filed a criminal case against the husband and his relatives for the offences punishable under Sections 498-A, 323, 504, 506 read with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act. He submits that mere filing of a criminal case itself does not amount to cruelty unless it is proved that the wife was in the habit of filing false cases 7 against the husband and his relatives. He also submits that the wife had a valid reason to stay away from her husband and therefore it cannot be said that she had deserted the husband. He submits that the husband had thrown away the wife for having not brought enough dowry and thereafterwards no attempt was made by him to bring her back and instead, he got issued a legal notice immediately thereafterwards seeking divorce. He also submits that at the instance of the husband, a false case was registered against the wife for the offence punishable under Section 363 of IPC and subsequently in Criminal Appeal No.1576/2017 disposed on 27.12.2017 by the court of I Additional City Civil and Sessions Judge, Bangalore, the appellant-wife has been acquitted of the alleged offence.&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. Learned counsel for the appellant-wife submits that the learned Judge of the Family Court has erred in granting a decree of divorce since the husband had failed to prove the ground of cruelty and desertion against the wife. He submits that the learned Judge of the Family Court has proceeded to allow the petition mainly for the reason that the wife had filed a criminal case against the husband and his relatives for the offences punishable under Sections 498-A, 323, 504, 506 read with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act. He submits that mere filing of a criminal case itself does not amount to cruelty unless it is proved that the wife was in the habit of filing false cases against the husband and his relatives. He also submits that the wife had a valid reason to stay away from her husband and therefore it cannot be said that she had deserted the husband. He submits that the husband had thrown away the wife for having not brought enough dowry and thereafterwards no attempt was made by him to bring her back and instead, he got issued a legal notice immediately thereafterwards seeking divorce. He also submits that at the instance of the husband, a false case was registered against the wife for the offence punishable under Section 363 of IPC and subsequently in Criminal Appeal No.1576/2017 disposed on 27.12.2017 by the court of I Additional City Civil and Sessions Judge, Bangalore, the appellant-wife has been acquitted of the alleged offence.&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. Per contra, learned counsel appearing for the respondent-husband submits that the parties have been residing separately ever since the year 2007 and all efforts made for conciliation has failed and therefore, the marriage has irretrievably failed and there is no point in continuing such a marriage. He submits that the ground of cruelty as well as desertion has been proved by the husband before the Family Court and therefore, there is no scope for interference by this court. He submits that the wife had left the company of her husband without there being any valid reasons and she is also guilty of filing false complaint against her husband and his relatives only with an intention to harass and coerce them. In support of his case, he has relied upon the judgments of the Hon’ble Supreme Court in the case of Narendra –vs- K.Meena reported in (2016) 9 SCC 455 and in the case of R.Srinivas Kumar –vs- R.Shametha in Civil Appeal No.4696/2013 DD 04.10.2019 and accordingly, he prays to dismiss the appeal.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. The respondent–husband had approached the Family Court with a prayer to dissolve his marriage with the appellant-wife on the ground of cruelty as well as desertion. To establish the ground of cruelty, in addition to his oral statement, the husband has mainly relied upon the depositions and judgment passed in C.C.No.23/2008 wherein he and his relatives were tried for the offences punishable under Sections 498-A, 323, 504, 506 read with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, by the jurisdictional Magistrate Court. It is the further case of the husband that the said criminal proceedings were registered against him and his relatives on a false complaint lodged by his wife and therefore, the same would amount to cruelty.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. From the perusal of the judgment and depositions made in C.C.No.23/2008, which are available at Exs.P7 and P8, it is seen that various incidents of ill-treatment and harassment meted out on the wife by the husband and his&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">family members were brought on record. During the course of statement made under Section 313 of Cr.P.C., by the husband in the said criminal case, he had produced certain SMS messages sent by the wife during the pendency of the criminal case, which is marked as Exs.D4 to D7 wherein she had shown her inclination to join him. These documents were taken into consideration by the learned Magistrate who, on the basis of the same, has observed that there was no such break of relationship between the accused-husband and the complainant–wife. The jurisdictional Magistrate had acquitted the accused persons in the said case on the ground that the prosecution had failed to prove the guilt of the accused beyond reasonable doubt and therefore, they were entitled for the benefit of doubt. Therefore, it cannot be said that the wife had lodged a false complaint against the husband and his family members.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Mere filing of a criminal case itself cannot be termed as “cruelty”. For the purpose of Section 13(1)(ia) of the Act, “cruelty” could be wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society, to which the parties belong, their social values, status, environment in which they live. Cruelty need not be physical. If from the conduct of the spouse it is established or an inference can be legitimately drawn that the treatment of the spouse is such that it causes apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty.&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. The husband had also alleged that his wife was in the habit of leaving the matrimonial house and she used to go to her sister’s and parents’ house without informing him. The said allegation has not been proved by the husband by examining any independent witness.&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. Insofar as the complaint filed against the wife by the School Authorities for the offence punishable under Section 363 of IPC, the learned counsel for the appellant-wife has produced the judgment passed in Criminal Appeal No.1576/2017 disposed on 27.12.2017 wherein she has been&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">acquitted for the alleged offence under Section 363 of IPC. The appellate court while setting aside the judgment and order of conviction and sentence passed by the trial court has observed that the accused was the mother of the victim girl and taking the minor victim girl into her custody would not amount to kidnapping as the accused herself being the mother of the victim girl was her lawful guardian and therefore, has held that offence under Section 363 of IPC cannot be invoked as against her on the complaint of School Authorities, who cannot be considered as lawful guardians of the minor girl.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. The Hon’ble Supreme Court in the case of Raj Talreja (supra) has held that mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. It is further held that merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. In the case of Omprakash (supra), the Delhi High Court has held that demand by the wife for a separate residence would not amount to “cruelty” in all cases. In the said case it has been held that every time a wife asks the husband to live separately from the mother and relatives, it would not be an unreasonable behaviour on the part of the wife and it would not amount to cruelty.&nbsp;<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. In the case of Shyam Lata (supra), the Punjab and Haryana High Court has held that merely for the reason that the prosecution had failed to establish the case against the accused-husband, institution of such a proceedings by the wife does not amount to cruelty justifying the grant of divorce.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. Insofar as the ground of desertion is concerned, it is the case of the husband that the wife had deserted him in the month of January 2007 without there being any valid reasons and thereafterwards she has not come back. Though the husband has contended that he made efforts to bring back his wife and child thereafterwards, no material evidence is produced in support of the said contention. On the other hand, in the month of April 2007, he had got issued a legal notice to his wife seeking divorce.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. It cannot be said that the wife had no valid reason to leave the company of the husband, having regard to the nature of the allegations made by her in the complaint filed against him for the offences punishable under Sections 498- A, 323, 504, 506 read with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961, in Crime No.61/2007. It has been the specific defence of the husband in the criminal case that after filing of the criminal complaint, his wife has been sending him messages conveying her willingness to join him. In that event, it cannot be said that the wife had deserted the husband to put an end to the marital relation and cohabitation.&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. The Hon’ble Supreme Court in the case of Smt.Rohini Kumari (supra), has held that desertion within the meaning of Section 10(1)(a) of the Hindu Marriage Act read with the Explanation does not imply only a separate residence and separate living. It is also necessary that there must be a determination to put an end to marital relation and cohabitation. Without animus deserendi there can be no desertion within the meaning of Section 10(1)(a) of the Act. In the present case, the husband has failed to prove that the wife had intention to put an end to the marital relation and cohabitation and on the other hand, the material on record would go to show that she and her family members had made all efforts to join the husband, but they were all in vain.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. In the case of Narendra (supra) relied upon by the learned counsel for the respondent-husband, there were allegations against the wife that she had threatened and also attempted to commit suicide and only for monetary considerations, she was demanding her husband to get&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">separated from his family. Having regard to the facts of the said case, the Hon’ble Supreme Court had held that the allegations made against the wife constitute an act of cruelty. But in the present case, no such serious allegations have been made against the wife and even the allegation with regard to the demand by the wife to set up a separate house has not been proved by the husband by examining any independent witnesses nor has he disclosed the reason as to why the wife is seeking a separate residence. Under the circumstances, the judgment in the case of Narendra (supra), would not be applicable to the facts of the present case.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">21. Further, the judgment in the case of R.Srinivas Kumar (supra) relied upon by the learned counsel for the respondent-husband was rendered by the Hon’ble Supreme Court exercising its powers under Article 142 of the Constitution of India and therefore, even the said judgment would not be of any aid to the case of the respondent – husband. Therefore, it is very clear that the respondenthusband has not made out a case for grant of divorce even</span><span style=\"font-size: 12pt;\">&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under Section 13(1)(ib) of the Act, as the allegation of desertion without there being any valid reason has not been proved by him.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. The learned Judge of the Family Court has observed that the marriage between the parties has been irretrievably broken down and the parties have been living separately for more than 9 years and therefore, it is proper to grant divorce as sought in the petition. The Hon’ble Supreme Court time and again has observed that a decree of divorce on the ground of irretrievable failure of the marriage can be granted only by the Hon’ble Supreme Court in exercise of its powers under Article 142 of the Constitution of India and not by any other courts. Further in the case of Mangayakarasi (supra), the Hon’ble Supreme Court has held that merely on the ground that the parties have been litigating and they have been residing separately for quite some time would not itself be a ground for dissolution of marriage.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. Under the circumstances, we are of the considered view that the learned Judge of the Family Court was not justified in allowing the petition filed by the respondent- husband under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 and dissolving the marriage by a decree of divorce. Resultantly, the impugned judgment and decree is liable to be set aside.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Accordingly, the following order:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Miscellaneous First Appeal is allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The judgment and decree passed by the court of IV Additional Principal Judge, Family Court at Bangalore, dated 15th March 2016 in M.C.No.3584/2011, is set aside</b>.</font></p>', '643dc1b00dd71dde8e232928547e3bd8.jpeg', 'b3240b399c5e141f87937c2531cf457c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-25', 1, '', '', '2023-03-25 13:25:18', '2023-03-25 13:25:18'),
(2840, 'dOi0F3IThoyzWowsPSuvo7ObN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Prohibition of outdoor advertisement on non-residential private properties violates Articles 14 & 19(1)(a) and (g) of the Constitution of India” declares Karnataka High Court. Directions issued to take strict action against unauthorised hoardings. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In and Out Advertising Pvt Ltd and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 6674 of 2021 decided on 1 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>These petitions have been filed challenging the validity of the Bruhath Bengaluru Mahanagara Palike Outdoor Signage and Public Messaging Byelaws, 2019 published by the respondent- BBMP in the official gazette vide notification dated 5.9.2019.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>The petitioner No.1 in WP No.6674/2021 is the company incorporated under the Indian Companies Act, 1956 and is engaged in the business of advertising and publicity, both indoor and outdoor to all kinds of media in multiple cities across the country. The petitioner No.2 is the Managing Director of the petitioner No.1 - Company. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>The petitioners were registered under the Bengaluru Mahanagara Palike Advertisement Byelaws, 2006 for erecting and displaying of commercial hoardings in the City of Bengaluru. In the light of the order passed by the Division Bench of this Court in WP No.57009/2016 (PIL) in the matter of use of flex, the 2nd respondent-Corporation passed a resolution dated 6.8.2018 prohibiting the putting up of any flexes, banner, buntings, illegal advertisement board wall writing, posters, hoardings, gantries flex paintings and all other type of advertisements for a period of one year stating that they affect the city\'s aesthetic beauty, caused public nuisance and are responsible for road accidents etc.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>The petitioners\' claim that without considering the objections, and without providing sufficient opportunity to voice their opinion, the Byelaws 2018 were published on 5.9.2018 in the official gazette. The petitioners aggrieved by the prohibition to carry out outdoor advertisement on private properties have filed these instant petitions.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>The advertisement is synonymous with the business, and business cannot thrive without advertisement. The banning of advertisements directly limits the reach of the business towards the consumers. Article 19(1)(a) and (g) of the Constitution of India guarantees freedom of speech and expression and to practice any profession, or to carry on any occupation, trade or business.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>Section 135(1) of the Act, 1976 specifies that no advertisement shall after levy of tax under Section 34 of the Act, 1976 has been determined upon by the Corporation be erected, exhibited etc. upon any land, building, wall, hoarding or structure within the City, and shall be displayed in any manner whatsoever in any place, without the written permission of the Commissioner. Sub-Section (2) specifies that the Commissioner shall not grant such permission, if the advertisement contravenes any Byelaw made by the Corporation or the tax, if any, due in respect of the advertisement has not been paid. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>Section 137 of the Act, 1976 specifies that the owner or person in occupation shall be deemed responsible for contravention of Sections 134 and 135 of the Act, 1976. 19.<span style=\"white-space:pre\">	</span>Section 138 of the Act, 1976 deals with the procedure for removal of unauthorized advertisement. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>Clause 24 of Section 423 of the Act, 1976 deals with the power of the Corporation to make Byelaws for the prohibition and regulation of advertisements.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 21.<span style=\"white-space:pre\">	</span>Sections 134 and 135 of the Act, 1976 are only enabling provisions, and the said provisions do not confer to advertise as a matter of right, but are subject to Bye Laws framed by the Corporation prohibiting and regulating the advertisement.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>31.<span style=\"white-space:pre\">	</span>In the backdrop of the aforesaid proposition of law, the point that arises for consideration in these petitions is as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>32.<span style=\"white-space:pre\">	</span>Point No.(i): Regarding maintainability of the writ petitions.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>35.<span style=\"white-space:pre\">	</span>WP No.6674/2021 is filed by a company incorporated under the Companies Act and the Managing Director of the said Company in his individual capacity, who is a citizen of this country.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 36.<span style=\"white-space:pre\">	</span>Even otherwise, the Clause 7.1.1 of the Byelaws, 2019 having been held that, it violates Article 14 of the Constitution of India, the present petitions are maintainable, as Article 14 specifies that the State shall not deny to any person equality before the law or the equal protection of law within the territory of India. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>37.<span style=\"white-space:pre\">	</span>Hence, these petitions complaining infringement of fundamental rights guaranteed under the Article 19(1)(a) and (g) are maintainable.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>38.<span style=\"white-space:pre\">	</span>Point No.(ii): Whether the Byelaws, 2018 prohibiting outdoor advertisement on private properties violates Articles 14 & 19(1)(a) and (g) of the Constitution of India & are in conformity with the provisions contained in the parent Act, i.e. 1976.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>50.<span style=\"white-space:pre\">	</span>Permitting outdoor advertisements other than outdoor advertisements on private residential properties in the absence of any logic or rationale is violative of Article 14 of the Constitution of India. In order to achieve the object and intent of the Byelaws, 2018, the BBMP can always impose such restrictions to regulate the outdoor advertisement on private properties, which restrictions have been imposed on other outdoor advertisements. The BBMP instead of regulating the outdoor advertisement on commercial properties has prohibited the same without any valid reasons and is not based on any intelligible differentia, which is arbitrary and discriminatory. Hence, the point No.(ii) is answered in favour of the petitioners.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>51.<span style=\"white-space:pre\">	</span>Point No.(iii): Whether the prohibition of outdoor signage and public messaging on hoardings against the public Right of way is discriminatory.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>52.<span style=\"white-space:pre\">	</span>The term Right of way is defined in the impugned Bye-laws,2018 under clause 3(15) which specifies that right of way is the motorable lanes and footpath between control lines or plot boundaries along a street, used for the movement of pedestrians and vehicles. This phrase means the right of the public to pass over all streets and places.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>53.<span style=\"white-space:pre\">	</span>Imposition of prohibition to erect hoardings on public right of way cannot be said to be discriminatory as it eases out the movement of pedestrians and vehicles without any visual distractions. If such hoardings are found to be erected unauthorizedly under the PPP project defeating the object of the Bye Laws- 2018, then they are always subject to disposal/removal by BBMP. Hence, Clause 7.1.4 is held to be constitutionally valid.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>54.<span style=\"white-space:pre\">	</span>Point No.(iv): Whether the prohibition of advertisement on private residential properties offends Article 14 of the Constitution of India.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>55.<span style=\"white-space:pre\">	</span>Clause 7.1.2 prohibits advertisement on private residential property and the said restriction is not violative of Article 14 of the Constitution of India, since the private residential properties cannot be utilized for commercial purposes under the Revised Master Plan- 2015 or the building bye laws of the BBMP. Hence, Clause 7.1.2 is in conformity with the provisions of law.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>56.<span style=\"white-space:pre\">	</span>Point No.(v): Whether the permission for outdoor advertisement on the public infrastructure under the PPP project violates Article 14.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>57.<span style=\"white-space:pre\">	</span>Clause 11.3 of the Byelaws 2019 specifies that the Byelaws shall not apply to public private partnership projects creating infrastructure for providing facilities and amenities to the public at large and for providing the same, the BBMP has to incur substantial costs. The BBMP identifies the entities providing infrastructure by a transparent bidding process under the provisions of the Karnataka Transparency in Public Procurement Act, 1999. In defraying the cost of construction and maintenance of the infrastructure provided for the concession period, the BBMP permits the putting up of the commercial advertisements. In doing so, the people living in Bengaluru can avail the benefit of amenities at no cost. On the contrary, an advertising agency simply puts up commercial advertisements for third parties and earns revenue out of which the fixed fee is paid to the BBMP. The Byelaws, 2018 does not prohibit the petitioners from participating in the tender process for providing infrastructure under the PPP project and in the absence of any such prohibition, it cannot be said that the Byelaws, 2018 are violative of Article 14 of Constitution of India. However, prohibiting outdoor advertisements in private properties and permitting outdoor advertisement to various other categories is arbitrary and violative of Article 14 of the Constitution of India.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>58.<span style=\"white-space:pre\">	</span>Point No.(vi):  Whether striking down Clause 7.1.1 as unconstitutional will invalidate the entire Byelaws, 2018.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>60.<span style=\"white-space:pre\">	</span>Applying the principles summarized by the hon\'ble apex court to the instant case, whether the entire Byelaws, 2018 requires to be struck down or not requires to be answered. On applying the doctrine of severability, only clause 7.1.1 is severed from the bye law and is declared as violative of fundamental right and the other provisions of the bye law remain in force as it is, since, there is no challenge to each of the Clauses of the Byelaws in these petitions nor they are held to be arbitrary and discriminatory. Hence, the striking down of the clause 7.1.1 of the bye-laws, 2018 will not invalidate other provisions of the bye-law. The interest of the petitioners can be protected by directing the BBMP to make a suitable provisions in the Byelaws, 2018 to permit outdoor commercial advertisements on private properties by imposing such reasonable restrictions so as to achieve the object and intent of the Byelaws, 2018.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>62.<span style=\"white-space:pre\">	</span>Therefore, in order to solve the issue of unauthorized hoardings, the BBMP must act decisively to preserve the beauty and safety of the city without affecting individual rights. These suggestions, if accepted, should not lie stale on the papers rather it must be put in action by the respective authorities in full swing. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>63.<span style=\"white-space:pre\">	</span>In view of the preceding analysis, the prohibition of outdoor advertisement on private properties impinge the fundamental right guaranteed under Articles 14 and 19(1)(a) and (g) of Constitution of India.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space:pre\">	</span>The writ petitions are allowed in part.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '208dc830504ec0c02873dce519f8eb91.jpeg', 'b452270793761e60a066b6b2ec7f99b1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-28', 1, '', '', '2023-03-27 15:21:21', '2023-03-28 03:22:08');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2841, 'RZ4MWslHqAT2cy5hAPndqDtaf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' “If Government wants to curb corruption, such intention should be reflected in swift action.” Competent Authority must pass orders on the requisitions for sanction to prosecute public servant within the outer limit of six months. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.S. Faneesha Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 7507 of 2022 decided on 16 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The petitioner is an employee of the Department of Rural Development and Panchayat Raj. The employment of the petitioner is not the issue in the lis. During the years 2009 and 2010 certain works under the Mahatma Gandhi National Rural Employment Guarantee Act (‘MGNREGA’ for short) were entrusted to several Gram Panchayats of Arkalgud Taluk. The petitioner then was working as Executive Officer of Arkalgud Taluk Panchayat. Alleging that the petitioner had misappropriated funds of MGNREGA, a complaint comes to be registered by the 2nd respondent against several persons/accused. The petitioner is accused No.1. The allegation against the petitioner was that he had executed works without obtaining necessary permission from other Departments concerning the technical implementation of works under MGNREGA. Due to the act of the petitioner in getting the works executed without such clearances from respective Departments, it is alleged that huge loss is caused to Government. The police conduct investigation for five long years and file charge sheets in all these cases. Criminal Petition No.7507 of 2022 concerns C.C.No.673 of 2016 pending before the Civil Judge & JMFC, Arkalgud. In all the cases, the allegations against the petitioner or any other accused, are the offences punishable under Sections 408 and 409 r/w Section 34 of the IPC. Though charge sheets were filed in the year 2016, the petitioner chose not to challenge the same at that point in time. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>Simultaneously, departmental enquiry was also initiated against the petitioner on the same set of facts. In the departmental enquiry, it transpires, the findings of the Inquiry Officer are that the charges are not proved and that acts of the petitioner have not caused any loss to the State exchequer. Once that communication comes about on 06-02-2020, the petitioner springs into action by raising a challenge to the continuation of proceedings in the charge sheets challenged in the cases at hand. It is, therefore, the charge sheets of the year 2016 come to be challenged in the year 2022.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>The petitioner was working in Arkalgud Gram Panchayat at the relevant point in time. Under MGNREGA several developmental works were undertaken under the aegis of MGNREGA through the Department of Rural Development and Panchayat Raj. Certain works were undertaken by the petitioner and other accused. On 10-02-2011, the 2nd respondent/Deputy Secretary of the Zilla Panchayat, Hassan registers a complaint against 10 accused, one of whom is the petitioner, on the allegation that funds of MGNREGA are misappropriated by the accused, the reason for such misappropriation was that works under MGNREGA were undertaken without there being necessary permission from the concerned Departments. It was found that accused 1 to 3, in particular, were responsible for such misappropriation. The complaint becomes a crime in Crime No.44 of 2011 for offences punishable under Sections 408 and 409 r/w 34 of the IPC. The Police conduct investigation and, on completion of such investigation, filed a charge sheet against eight accused in which the petitioner is accused No.1. The learned Magistrate before whom the charge sheets were presented, takes cognizance of the offences alleged against all the accused by his order dated 24-08-2016 and registers criminal cases against all the accused – against the petitioner as accused no.1 in C.C.No.673 of 2016.   The charge sheet numbers vary in all the cases and the petitioner is accused No.1 in all the charge sheets. The act of the petitioner and other accused in the aforesaid charge sheets is said to have resulted in huge loss to the Government. The petitioner chose not to challenge the action of the learned Magistrate taking cognizance for over six years.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>The issue is, whether the case of the petitioner would require sanction at the hands of the Competent Authority for continuation of prosecution against him? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>The offences alleged against the petitioner are all offences punishable under Sections 408 and 409 of the IPC. Section 408 deals with criminal breach of trust by clerk or servant. Section 409 deals with criminal breach of trust by a public servant, banker, merchant or its agent. Therefore, the petitioner being a public servant is said to have committed ingredients of offence of criminal breach of trust. The allegation comes about on the ground that the petitioner while working as an officer in Arkalgud Town Panchayat along with others had indulged in certain acts which would become aforesaid offences. Therefore, it is a case where the petitioner is alleged to have committed those acts while discharging his official duty. If the ingredients of offence are that while performing official duties the offences come about, sanction for such prosecution of any officer, the petitioner in the case at hand, is imperative. The view of mine, in this regard, is fortified by the judgments rendered by the Apex Court from time to time.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>15.<span style=\"white-space:pre\">	</span>On a coalesce of the judgments rendered by the Apex Court as afore-quoted, what would unmistakably emerge is, prosecution cannot continue against public servants, if the acts of such public servants were in the course of discharge of their official duties or has reasonable nexus to the discharge of official duties. An illustration is also given by the Apex Court in all the above cases as to what would amount to discharge of official duty and what would amount to private duty and the unmistakable inference that can be drawn, in the considered view of this Court is that, if there is nexus qua the allegation to the discharge of official duty, sanction for such prosecution of public servant is imperative. In all the aforesaid cases, the Apex Court was considering the ingredients of allegations which sprung from the acts of those Government servants while performing their official duty. If, on the bedrock of the principles laid down by the Apex Court in the aforesaid cases, the case at hand is noticed, it becomes unmistakably clear that the allegations or the ingredients of Sections 408 and 409 IPC are laid against the petitioner alleging criminal breach of trust in performance of his official duty. Therefore, cognizance by the learned Magistrate could not have come about without a valid sanction in the eye of law being placed before him, as the act of the learned Magistrate taking cognizance of the offence against the petitioner without a sanction would run foul of the very statute and its interpretation by the Apex Court in the aforesaid cases.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>The State has placed much reliance upon the judgment in the case of PUNJAB STATE WAREHOUSING CORPORATION v. BHUSHAN CHANDER AND ANOTHER to buttress its submission that sanction for offences punishable under Sections 467, 468, 471 or 409 of the IPC would not require any sanction by their very nature. The issue before the Apex Court can be gathered from the beginning of the judgment and it reads as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“The singular question that has emanated in this appeal, by special leave, is whether the High Court has correctly accepted [Bhushan Chander v. State of Punjab, 2011 SCC OnLine P&H 5393] the submission advanced on behalf of the first respondent, who was convicted for offences punishable under Sections 409/467/468/471 of the Penal Code, 1860 (for short “IPC”) and had been awarded sentence for each of the offences with the stipulation that they would run concurrently, that he being an employee of the appellant Corporation is a public servant and the trial had commenced without obtaining sanction under Section 197 of the Code of Criminal Procedure, 1973 (CrPC) and hence, the trial in entirety was invalid and as a result the conviction and sentence deserved to be set aside.”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>The Apex Court was answering a question whether an employee of Punjab State Warehousing Corporation was a public servant or otherwise and the trial which had commenced without obtaining sanction under Section 197 CrPC was invalid in its entirety, which resulted in the conviction and sentence being set aside.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>19.<span style=\"white-space:pre\">	</span>The co-ordinate Bench (supra) in one of the charge sheets has quashed the proceedings on account of sanction not being obtained to prosecute the accused therein. The accused therein was accused No.7 and the petitioner is accused No.1. The issue is similar as it springs from a solitary allegation of funds being misappropriated under MGNREGA. Therefore, the judgments that are rendered by the Apex Court later to the judgment in the case of PUNJAB STATE WAREHOUSING CORPORATION would become applicable to the facts of the case at hand and not the one that is relied on by the learned High Court Government Pleader.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>20.<span style=\"white-space:pre\">	</span>As a parting observation, it would not be inapt to notice that plethora of cases are brought before this Court seeking quashment of registration of criminal cases pending before concerned Courts against the public servants. In all such cases, either no sanction is sought for as in the case at hand or no decision is taken on the requisition for sanction as necessary under Section 197 of the CrPC. The continuation of trial in all such cases is obliterated on the ground of want of sanction. The State/Competent Authority in certain cases would not pass orders on the requisition of sanction by the respective Investigating Agencies for days or even months together. This has resulted in proliferation of litigation by those public servants, all for not seeking any sanction or indecisiveness on the requisition for according sanction. If only the State/Competent Authority would act without brooking any delay, either accepting or rejecting the requisition for sanction, it would avoid litigation being brought before this Court.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>21.<span style=\"white-space:pre\">	</span>It is trite that this Court cannot issue a mandamus for grant of sanction, as it is in the realm of discretion of the Competent Authority to grant or refuse sanction after application of mind. But, the concern of the Court is that the Competent Authority do not act immediately or within a reasonable time. If Government wants to curb corruption, a bane to the society in the present day, such intention of the Government should be reflected in swift action, particularly in cases concerning corruption or any act of a public servant in discharge of his official duty. On the other hand, the Government Advocates put up vehement opposition before this Court contending that sanction is not required for offences punishable under Sections 408, 409 and 420 IPC. Therefore, I deem it appropriate to observe that instead of Government putting up vehement opposition before this Court through its counsel, it would be imperative for the Competent Authority to pass orders on the requisitions for such sanction either granting or refusing and the Investigating Agencies send such requisitions wherever necessary. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>22.<span style=\"white-space:pre\">	</span>In the wake of such litigation being generated on indecisiveness of respective Competent Authorities either on the ignorance of the Investigating Agency in not requesting for sanction or the indecisiveness of the respective Competent Authorities in not passing necessary orders, I deem it appropriate to observe that the concerned Competent Authority shall henceforth decide on the requisitions sent by the Investigating agency, with an outer limit of six months, if not earlier, as only on account of want of sanction the proceedings are quashed even in cases where corruption is the allegation. Therefore, the State or the Competent Authority cannot sit over the files for sanction for months together and ‘contend not taking any decision is also a decision’. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>23.<span style=\"white-space:pre\">	</span>For the aforesaid reasons, permitting further proceedings to continue against the petitioner on both the aforesaid counts would undoubtedly become contrary to law and result in miscarriage of justice.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(i)<span style=\"white-space:pre\">	</span>Criminal petitions are allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '977f39421de4247500750b75d632e97c.jpeg', 'c19e36290a5324eefe11da62125b0229.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-28', 1, '', '', '2023-03-27 15:34:02', '2023-03-28 09:57:47'),
(2842, 'nkq4qgzHH8eQerJub77MJieWi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service benefits do not form bequeathable estate of Government Servant. Family pension does not form part of the estate of the deceased and as such it cannot be disposed off during lifetime by testamentary disposition. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sujata Channabasappa Hatti and others Vs Nehru and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 7144 of 2011 decided on 16 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice C.M. Joshi. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The brief facts are as below: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The appellants are the original plaintiffs and they had filed suit for declaration and injunction against the defendant No.1 to declare that the plaintiffs\' have become owners of Land in R.S.No.684/1 measuring 14 acres of Honawad village and also that they have right to receive the service benefits, insurance etc., which were bequeathed by the deceased Kalpana in favour of the plaintiffs under a Will dated 04.03.2005. They contended that the deceased Kalpana was the sister of the plaintiffs and she was working as a primary School Teacher in Athani taluk and she has married defendant No.1. They lead marital life for a period of 6 months and thereafter there was a difference among them. During the life time of deceased Kalpana, the respondent No.1 who happens to be her husband, contracted a second marriage and then he neglected the deceased Kalpana. It is contended that the deceased Kalpana died on 12.05.2005 when she was seriously ill and hearing about the ill-health, the respondent No.1 took her to Hulagabali village and after 4 days she died there. It is contended that the deceased Kalpana was suffering from illness since 2004 and she had executed a Will on 04.03.2005 bequeathing the land allotted to her, the life insurance amount and also the service benefits to the plaintiffs. The said Will was duly registered. After the death of Kalpana, the respondent No.1 tried to get his name entered in revenue records of the land and attempted to receive service benefits. The same was objected by the appellants, which gave rise to the present litigation.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>Before the Trial Court, the plaintiffs, who are the appellants herein contended that the deceased Kalpana had executed a valid and registered Will bequeathing all her belonging and she was competent to execute the Will. They contended that the respondent / defendant was not at all entitled for any relief concerning the service benefits as well as the estate of the deceased.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>Aggrieved by the judgment of the first appellate Court, the plaintiffs/appellants have approached this Court in second appeal. They contended that the first appellate Court is not justified in placing reliance on Rule 302 of KCSR and when the deceased Kalpana had executed the Will, it would cover even the service benefits also. Therefore, they contended that the Will executed by the deceased Kalpana would take into purview the service benefit also and trial Court could not have bifurcated the service benefits from the estate of the deceased.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>In view of the said contention, the following substantial questions of law were framed by this Court on 28.02.2013.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> \"i) Whether the service   benefits   such   as gratuity, the insurance, provident fund, leave encashment etc., of a Government Servant can be considered as part of the estate of the said official? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ii) Whether the consideration of pension is different from the consideration of other service benefits of a Government Official?\"<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>A perusal of the judgment of the trial Court as well as the first appellate Court shows that both the Courts below had placed reliance on the decision reported SMT. VIOLET ISSAAC  AND  OTHERS  Versus  UNION  OF INDIA AND OTHERS. In the said decision it was held that: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>\"The Family Pension Scheme under the Rules is designed to provide relief to the widow and children by way of compensation for the untimely death of the deceased employee. The rules do not provide for any nomination with regard to family pension, instead the Rules designate the persons who are entitled to receive the family pension. Thus, no other person except those designated under the Rules are entitled to receive family pension. The employee has no title nor any control over the family pension as he is not required to make any contribution to it. The family pension scheme is in the nature of a welfare. Therefore, it does not form part of his estate enabling him to dispose of the same by testamentary disposition. Accordingly, in the present case the widow of the deceased Railway employee is entitled to receive the family pension, notwithstanding the will alleged to have been executed by the deceased.\" </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space: pre;\">	</span>Therefore, no other persons except that designated under the rules, are entitled to receive the family pension. In coming to such conclusion the Apex Court also followed the earlier decision in the case of JODH SINGH Versus UNION OF INDIA  AND ANOTHER, wherein it was held that the family pension does not form part of the estate of the deceased and as such it cannot be disposed off during life time by testamentary disposition. In Para 10 of the said decision it is held as below: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>\"Where a certain benefit is admissible on account of status and a status that is acquired on the happening of certain event, namely, on becoming a widow on the death of the husband, such pension by no stretch of imagination could ever form part of the estate of the deceased. If it did not form part of the estate of the deceased it can never be the subject-matter of the testamentary disposition.\"</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 19.<span style=\"white-space: pre;\">	</span>In view of these authoritative to pronouncements, which has stood the test of time, it is clear that the service benefits do not form the bequeathable estate of any Government Servant. Under these circumstances, the judgments of the trial Court as well the first appellate Court cannot be found fault with. The substantial questions of Law raised by this Court are no more res-integra. It has been answered by the Apex Court in the aforesaid decisions. Therefore, the appeal is bereft of any merit and does not require any further consideration. Hence, the appeal is dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2e50051df5039981ebdd365f612b2afd.jpeg', 'f15c87dea4792809ee6f9576f5785762.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-28', 1, '', '', '2023-03-27 16:17:13', '2023-03-28 06:56:21'),
(4586, 'RhXEU4uqQcNI5HBDDAn7tY5V8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Excise Act. Reconstitution of the firm inducting the new partner as legal representative of the deceased partner does not amount to transfer of license. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Lakshmivenkateshwara Enterprises Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 48554 of 2019 decided on 15 April 2024.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The demand notice dated 31.08.2019 issued by Respondent\r\nNo.4, by which, the petitioner was called upon to pay the transfer fee as\r\nprescribed under Rule 17-B of the Karnataka Excise Licences (General\r\nConditions) Rules, 1967 (in short \'Rules, 1967), is impugned in this\r\npetition.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 2. M/s.Lakshmivenkateshwara Enterprises was granted with C.L-9\r\nlicence. The partnership consisted of two partners, and one of the\r\npartners, viz., Smt.Kamala Rai died on 06.12.2012. Thereafter, the\r\npartnership firm was reconstituted, and under the reconstituted\r\npartnership deed, the son of the deceased partner was inducted as a\r\npartner i.e., representative of deceased partner, and directed the\r\npetitioner-firm to pay the transfer fee as stated under Rule 17-A of the\r\nRules, 1967, against which, an appeal was filed under Section 61(3) of\r\nthe Karnataka Excise Act, 1964 before the Karnataka Appellate Tribunal.\r\nThe Karnataka Appellate Tribunal, by Order dated 10th April 2017, set\r\naside the Order passed by the Excise Commissioner and directed the\r\n2nd respondent to pass an order on the transfer of licence as stated and\r\ndirected the authorities to refund the amount collected under Rule 17-B\r\nof the Rules, 1967, if any.\r\n 3. Given the circumstances, the 4th respondent issued the\r\nimpugned notice calling upon the petitioner-Firm to pay the transfer fee\r\nas stated under Rule 17-B of the Rules on the ground that the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reconstitution of the partnership firm amounts to transfer of licence.\r\nHence, this petition is filed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Rule 17-A of the Rules, 1967, reads as follows:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>17-A - Transfer in the event of death:\r\n\"In the event of death of the licensee or the lessee during the\r\ncurrency of the licence or lease, the Deputy Commissioner may on an\r\napplication by the legal heirs of the deceased with the previous\r\nsanction of the Excise Commissioner, transfer the licence or the lease\r\nas the case may be, in their favour.\"</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n 6. In the instant case, one of the partner Smt.Kamala Rai died on\r\n06.12.2012 during the subsistence of CL-9 licence, and thereafter, her\r\nson R.Kalyana Chakravarthi was inducted as legal representative of the\r\ndeceased partner. Therefore, reconstitution of the firm inducting the new\r\npartner as legal representative of the deceased partner does not\r\namounts to transfer, as stated under Rule 17-B of the Rules, 1967, but\r\ncomes under the ambit of transfer as stated under Rule 17-A of the\r\nRules, 1967. Therefore, the impugned notice issued by the 4th\r\nrespondent is contrary to Rule 17-B of the Rules, 1967, since upon\r\nreconstitution of the partnership firm, there was no transfer of licence in\r\nfavour of any person. The order passed by the KAT directing the 4th\r\nrespondent to pass an order for transferring the license and to refund the\r\namount collected under Rule 17-B has attained finality and binding on\r\nthe Respondents.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The Writ Petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b2715dcfb2076ad2868360c78ac02e31.jpeg', '79e3f7392b0f685e5ac9a1a3456226a6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2024-06-05', 1, '', '', '2024-06-04 15:01:58', '2024-06-05 12:14:52');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2844, 'NbmhIkzvEw6XUP66W807ZQDGj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Permissive possession cannot be claimed as adverse possession unless the possession is adequate in continuity, adequate in publicity and adverse to a competitor. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gundappa Vs Chamaraju.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R.S.A 819 of 2017 decided on 17 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The plaintiffs before the Trial Court while seeking the relief of declaration and possession contended that the plaintiffs are the absolute owners of the suit schedule property and husband of plaintiff No.1 by name late Ainora Devaiah was the owner in possession of the said property and the father of defendant No.1 by name late Shivanna had approached plaintiff No.1 and her husband and requested for permission for him and his family to reside in the suit schedule property as he had no other house for residence in the village and accordingly the permission was granted. It is further pleaded that after the death of defendant No.1’s father, the defendants continued in the suit schedule property with the permission of the plaintiffs. The plaintiffs sympathetically permitted the defendants to reside in the suit schedule house for few years, when the defendants requested the plaintiffs to permit them to continue to reside in the said property. When the plaintiffs demanded possession for their residential purpose, the defendants refused to vacate the suit schedule property and hand over the possession to the plaintiffs and hence legal notice dated 29.05.2007 was sent to the defendants and it was replied by notice dated 05.06.2007 by making false claim contending that Ainora Devaiah sold the suit schedule property in favour of defendant No.1’s father in the year 1980 and since then they are in possession of the suit schedule property as absolute owners.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>Having considered the grounds urged in the appeal as well as the contention of the parties, this Court has to take note of the substantial questions of law framed by this Court while admitting the appeal, which are as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space:pre\">	</span>Whether the finding of the First Appellate Court that the defendants have perfected their title to the suit property by adverse possession in the absence of an issue in this regard is sustainable in law? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space:pre\">	</span>Whether the First Appellate Court was right in reversing the findings of the Trial Court on issue Nos.1 and 4? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>Whether the judgment and decree passed by the First Appellate Court is sustainable in law? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>To consider any other question of law which may arise for consideration while hearing the appeal.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>Having considered the grounds urged in the second appeal and also considering the material available on record and in keeping the substantial questions of law framed by this while admitting the second appeal, this Court has to analyse the material available on record. The first substantial question of law framed by this Court is whether the finding of the First Appellate Court that the defendants have perfected their title to the suit property by adverse possession in the absence of an issue in this regard is sustainable in law. It is settled law that even if specific issue has not been framed and if the parties have understood the lis arosed between them, the Court can consider the material available on record. The clinching issue between the parties is whether the defendants have perfected the title to the suit property by adverse possession and hence, this Court has to consider the pleadings of the parties. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>It is the case of the plaintiffs before the Trial Court that the father of the defendant Nos.1(a) and (b) and husband of defendant No.2 had put in possession of the suit schedule property by one late Ainora Devaiah who is the husband of first plaintiff. It is the case of the plaintiffs that the property belongs to said Ainora Devaiah. The father of defendant Nos.1(a) and (b) by name Shivanna had approached first plaintiff and her husband and requested them to permit him to reside in their suit schedule house property for some years along with his family since he had no house for their residence in the village and his request was considered and permitted him to reside in the suit schedule property along with his family. It is further contended that even after the death of Shivanna, the defendants continued to reside in the suit schedule property with the permission of the plaintiffs. In the meanwhile, the plaintiffs requested the defendants, as well as the father of defendant Nos.1(a) and (b) when he was alive, in several times to vacate the suit schedule property and handover the vacant possession of the suit schedule property but the defendants requested the plaintiffs to permit them to reside in the suit schedule property for further few years as they have no house for the residence hence, sympathetically their request was considered. Again the plaintiffs requested the defendants to vacate the suit schedule property but the defendants did not vacate the same and dodged the matter on one or the other reasons. Hence, the legal notice was issued against the defendants calling upon them to vacate the suit schedule property but instead of vacating the suit schedule property, they denied the title of the plaintiffs over the suit schedule property thus without any other alternative, the suit was filed against the defendants.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>In pursuance of suit summons, the defendants appeared and fled the written statement. The first contention taken before the Court that the said Ainora Devaiah who is the kathedar of the suit schedule property has sold the same in the year 1980 in favour of the father of defendant Nos.1 (a) and (b) by name Shivanna for valuable consideration. From the date of purchase, the said Shivanna was residing in the schedule property till his death and these defendants have also been residing in the schedule property from the year 1980 as absolute owners under their own right. The said Shivanna died about 13 years ago and the sad Ainora Devaiah died in the year 1985 itself. Thus, these defendants have been residing in the suit schedule property openly, continuously, without any kind of disturbance from anybody. Accordingly, these defendants have perfected their right by adverse possession in respect of suit schedule property.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>26.<span style=\"white-space:pre\">	</span>Having considered the evidence available on record and also the findings of both the Courts, this Court has to look into the material with regard to the divergent finding of the Trial Court and also the First Appellate Court and also look into the fact that whether the First Appellate Court has committed an error in granting the relief in favour of the defendants in coming to the conclusion that the defendants have perfected their title over the suit schedule property by adverse possession.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b> 27.<span style=\"white-space:pre\">	</span>Having considered the main substantial question of law and also the other substantial question of law with regard to whether the First Appellate Court was right in reversing the finding of the Trial Court on issue Nos.1 and 4 and judgment and decree of the First Appellate Court is sustainable in law, this Court has to consider the material available on record. The sum and substance of evidence of the parties are also taken note of and no doubt, the principles laid down in the judgments referred supra in the case of MUNIRAJU it is held that mere permissive possession of the plaintiffs of the suit schedule lands for any length of time with an animus against the true owner, no sufficient documents to establish adverse possession.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">38.<span style=\"white-space: pre;\">	</span>Having considered the materials in toto, the findings of the First Appellate Court that the defendants have perfected their title to the suit property by adverse possession is errorneous though substantial question of law is framed that without any issue in this regard, the same is sustainable and this Court already held that if the parties have understood the lis arose between them and also pleadings are very specific with regard to claiming adverse possession, the First Appellate Court fails to take note of cardinal principles while accepting the case of the defendants in coming to the conclusion that they have perfected the title by adverse possession. First of all, it is the claim of the defendants that the property was purchased by the defendants for sale consideration and contrary defence is taken that it is perfected by adverse possession and animus has not been proved and apart from that rights of adverse possession of the title of the true owner with the knowledge of the true owner has not been proved. Apart from that without intent to hold it adverse to the title of the true owner, possession has been continued also has not been proved and instead of, in the admission of DW1 and DW2, they have categorically admitted that the said Shivanna who is the grandfather of DW1 was not having the house when he came out from the house when the partition was took place and the same is probablised the case of the plaintiffs. In the civil case, the Court has to take note of the preponderance of probabilities and probabilities is in favour of the plaintiffs though does not specifically pleaded when the permissive possession was given but in the written statement itself the defendants have claimed that they occupied the said house in the year 1980 but in the other way they claims that they have purchased the property and in order to substantiate their contention nothing is placed on record.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">39.<span style=\"white-space: pre;\">	</span>This Court would like to rely upon the judgment of the Apex Court in the case of KESAR BAI vs GENDA LAL AND ANOTHER reported in (2022) 10 SCC 217 wherein it is held that relief based on contradictory grounds, cannot be permitted to claim plea of ownership based on sale deed and plea of adverse possession, both are contrary to each other and plaintiffs cannot be permitted to take both such pleas at the same time. The Apex Court while discussing the same in paragraphs 7 and 8 held that the plaintiffs claimed the title by adverse possession and also based on the sale deed and with regard to the sale deed is concerned all the Courts negated the claim of the plaintiffs of ownership on the basis of the registered sale deed. Therefore, the only claim on behalf of the plaintiffs was the plea of adverse possession is concerned, the High Court has specifically framed a substantial question of law and as such has held the same in favour of the appellant/defendant No.1. The High Court has specifically observed and held that the plea of ownership based on sale deed and plea of adverse possession, both, are contrary to each other and the plaintiffs cannot be permitted to take both the pleas at the same time. Hence, it is clear that the party who seeks the relief of adverse possession, he cannot plead both the ownership as well as adverse possession.  In the case on hand also the first count of defence of the defendants is that the said Shivanna had purchased the property from the Ainora Devaiah in the year 1980 and the said transaction was only a oral transaction and whether it is a oral transaction or for having purchased the property through a deed, the defence is very specific that he had purchased the property for sale consideration of Rs.4,000/- and the same is reiterated by DW1, the granddaughter of said Shivanna and the defendants also claims that they have perfected the title by adverse possession hence, they cannot blow hot and cold at the same time. In one breadth they say that they derived the title by oral sale transaction and contrary defence is that they perfected the title by adverse possession and hence, the judgment of the Apex Court is aptly applicable to the case on hand.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>40.<span style=\"white-space: pre;\">	</span>While seeking the relief of adverse possession, three basic requirements has to be proved that is adequate in continuity, adequate in publicity and adverse to a competitor as contended by the counsel for the respondents and the same is missing and denied the title that is in the knowledge is missing. The other contention is that the plaintiffs have extinguished the right for allowing the defendants to continue in a possession also cannot be accepted. The counsel brought to notice of this Court to Section 27 of the Limitation Act which provides for extinguishment of right on the lapse of limitation fixed to institute a suit for possession of any property. But throughout in the pleadings, the plaintiffs have pleaded that permissive possession was given by Ainora Devaiah and his family members even after the death of the said Shivanna and repeatedly asking to vacate the premises and the same was postponed for one or the other reason and permissive possession also established by the plaintiffs eliciting the answer from the mouth of DW1 and DW2 and the Trial Court also taken note of the same in paragraph 19 but the First Appellate Court while reversing the same fails to take note of the answer elicited from the mouth of DW1 and DW2 and only carried away with the admission given by PW1 that without disturbing the possession for a period of more than 26 to 27 years, the defendants were allowed to continue in the possession but continuous possession for any length of time will not create any right and the defendants cannot perfect the title by adverse possession thus, fails to take note of the material on record while granting the relief of adverse possession. Nowhere it is discussed with regard to requirement of adequate in continuity, adequate in publicity and adverse to a competitor, in denial of title and his knowledge and nothing has been discussed in the judgment of the First Appellate Court with regard to the animus possidendi under hostile colour of title is required to grant the relief of adverse possession. Hence, the First Appellate Court has committed an error in coming to the conclusion that the defendants have perfected their title to the suit schedule property by adverse possession and also committed an error in reversing the finding of the Trial Court on Issue Nos.1 and 4 in coming to the conclusion that the plaintiffs have proved that they are the absolute owners of the suit schedule property and the defendants are in permissive possession thereof and no title documents are also placed by the defendants though they claimed that they are the absolute owners and erroneously reversed the finding with regard to the permissive possession of the defendants and also committed an error in reversing the finding of the Trial Court that the plaintiffs are entitled for the relief of declaration and possession and hence, the substantial question of law framed by this Court that the defendants have perfected their title to the suit schedule property by adverse possession in the absence of an issue in this regard is not sustainable in the eye of law and accordingly first substantial question of law is answered accordingly.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>41.<span style=\"white-space:pre\">	</span>The second substantial question of law is concerned, the First Appellate Court has committed an error in reversing the finding of the Trial Court in coming to the conclusion that the plaintiffs have not proved the ownership and the permissive possession of the defendants and the same is against the material available on record and such finding is unwarranted. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>42.<span style=\"white-space:pre\">	</span>Having considered the material available on record, finding amounts to perversity hence, the third substantial question of law is also answered as the judgment and decree passed by the First Appellate Court is not sustainable in law and committed an error in appreciating both the oral and documentary evidence placed on record and failed to consider the question of law which requires to declare that the defendants have perfected their title over the suit schedule property by adverse possession. Hence, the judgment and decree of the First Appellate Court requires to be set aside and the judgment and decree of the Trial Court is requires to be restored and consequentially the plaintiffs are declared as owners of the suit schedule property and the defendants are directed to deliver the possession of the suit schedule property to the plaintiffs within two months from the date of this order failing which, the plaintiffs are entitled to get the possession under due process of law.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">(i)<span style=\"white-space:pre\">	</span>The appeal is allowed. <br></font></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2a308c389de036e2e1723ac07b34443c.JPG', '5a8e82def2c572827f1f7cba494e115f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-29', 1, '', '', '2023-03-28 15:11:36', '2023-03-29 10:40:34'),
(2845, 'bsKseN5ePmLnGorxkcs8cflzu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bombay-Karnataka area. Succession among Hindus coming under the Bombay School of Inheritance. Sister was entitled for a share if the succession had opened prior to 1956. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Parayya and others Vs Gadagayya through LRS and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Regular Second Appeal 5282 of 2010 decided on 24 February 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice M.G.S. Kamal.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>Case of the plaintiffs is;</font><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">4.1.<span style=\"white-space: pre;\">	</span>That the plaintiffs and the defendants are pujaris of Prabhudev temple at Terdal, Jamakhandi taluk and they belong to Bhavi family and are related to each other as bhahubhand. The relationship between the plaintiffs and the defendants is explained by a genealogy annexed to the plaint.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">4.2.<span style=\"white-space: pre;\">	</span>That, the land bearing Sy.No.585 and Sy.No.712 together measures 19 acres 4 guntas is an Inam Land of Prabhudev Devasthan, which has been divided into various strips and these strips and names of their occupants have been described in Schedule ‘B’ to the plaint.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">4.3.<span style=\"white-space: pre;\">	</span>It is further the case of the plaintiffs that one Allayya Bhavi was the propositus. He had three sons namely (i) Magayya, (ii)Chanayya and (iii)Parayya. First son-Magayya had a son by name Channayya and a daughter by name Parawwa, of whom Channayya died issueless and Parawwa was survived by her only daughter by name Guravva. The second son of the propositus, Channayya died issueless. The defendants 2 to 5 are the descendants of the third son -Parayya.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">4.4.<span style=\"white-space: pre;\">	</span>The poojaraki rights belonging to Parawwa and her daughter Gurawwa was inherited by the plaintiffs and the defendant No.1 who are the sons of Gurawwa. The income by way of offerings in the devasthan was shared equally by the plaintiffs and the defendants as they belong to single group. That there are eight groups in the family and each group gets its right to offer pooja once in the cycle of eight years. Plaintiffs and defendants belong to one such group and they together get their turn once in eight years to offer pooja, as such they are entitled for half of the income while the defendants are entitled for remaining half.</font><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">4.5.<span style=\"white-space: pre;\">	</span>Parawwa and her daughter Gurawwa being female heirs could not personally take part in the pooja, however they were only sharing the offerings to the deity. Taking advantage of the absence of names of Parawwa and Guravva, in the charge report for they being female heirs, defendants Nos.2 to 5 appropriated share of the plaintiffs. That defendant Nos. 2 to 5 also interfered with the possession of land of the plaintiffs and also prevented plaintiffs from appropriating their share in the offerings.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">4.6.<span style=\"white-space: pre;\">	</span>Plaintiffs being the male members also wanted to perform pooja along with the defendants, but they are being prevented by defendant Nos.2 to 5, constraining the plaintiffs to file suit seeking the reliefs as noted above.</font><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">Regarding substantial question of law No.1 :</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">17.4.<span style=\"white-space: pre;\">	</span>It is to be seen that as per the genealogy shown in the plaint, propositus Allayya Bhavi had three sons namely (i) Magayya, (ii) Chennayya and (iii) Parayya. Magayya the first son, had a son by name Channayya and a daughter by name Parawwa. Second son Chennayya had admittedly died issueless. Third son Parayya had four sons namely (i) Magayya, (ii) Ningayya, (iii) Hampayya and (iv) Allayya. Thus, after the demise of propositus Allayya Bhavi, there existed two branches of his family, one branch of Magayya and the another branch of Parayya. Each branch becoming entitled for half of the share in the family property and Poojaraki rights of their family deity.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">17.7.<span style=\"white-space: pre;\">	</span>The plaintiffs’ case is that there was a partition between Magayya and Parayya two surviving sons of original propositus Allayya Bhavi each entitled for half of share in property as well as Poojaraki rights. Since son of Magayya namely Channayya had died issueless, upon his  demise, his sister Parawwa succeeded to entire half share of Magayya in the property and in the Poojaraki rights. Till here, defendant Nos.2 to 5 have not disputed the case of the plaintiffs.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">17.8.<span style=\"white-space: pre;\">	</span>The further case of the plaintiffs is that Parawwa passed away leaving behind Gurawwa mother of the plaintiffs who in turn succeeded to the said half share of land and Poojaraki rights, which has been seriously and vehemently disputed by defendant Nos.2 to 5 on two folds. Firstly it is their categoric contention in their written statement Parawwa had relinquished her share in the year 1919 in favour of their grandfather Parayya Bhavi, by taking a sum of Rs.500/- in terms of a compromise entered into in suit in O.S.No.102/1917 of Terdal Court. As such, the defendants have succeeded to the right of Parawwa and her daughter Gurewwa in exclusion to the plaintiffs. Secondly, though not pleaded in the written statement in this appeal it is their case that in terms of provisions of Hindu Women’s right to Property Act, 1937 Parawwa being sister of Channayya could not inherit his estate in the presence of forefathers of defendants.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">17.29.<span style=\"white-space: pre;\">	</span>In the light of the aforesaid documentary evidence in the nature of Ex.D1, contents of plaint in O.S.No.102/1917 (part of Ex.D-18) and the deposition of DW.2, the Trial Court and the First Appellate Court have rightly come to the conclusion that the said documentary and oral evidence produced by the defendants would not indicate that Parawwa had given up her rights of Poojaraki.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">17.30.<span style=\"white-space: pre;\">	</span>The other aspect of the matter is assuming the said Parawwa had indeed relinquished her rights over the immovable property along with her right of Poojaraki as contended by the defendants, for a sum of Rs.500/- in favour of Parayya grandfather of the defendants, a question that arises is whether such a relinquishment is acceptable/admissible in law. In other words, the relinquishment claimed by the defendants is in respect of immovable property for a consideration of Rs.500/- which requires to be registered under Section 17(1)(b) of Indian Registration Act, 1908 as it purports to create and extinguish right in respect of immovable property by Parawwa in favour of Parayya.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\"><br></font>17.31.<span style=\"white-space: pre;\">	</span>As already noted, Exs.D1 D14, D17 and D18, even if taken into consideration as the documents evidencing relinquishment of the right by Parawwa in favour of Parayya as claimed by the defendants cannot be relied upon for want of admissibility of the said document. Relinquishment of rights by Parawwa in immovable property in consideration of Rs.500/- and also in view of defendants and their forefathers not having any pre- existing right over the suit properties, the alleged transaction of relinquishment requires compulsory registration under Section 17(1)(b) of the Indian Registration Act. That not having been done, the case of the defendants of their grandfather acquiring rights in respect of immovable property including right of poojaraki cannot be accepted.<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">17.32.<span style=\"white-space: pre;\">	</span>It is relevant to refer to the judgment of the Apex Court in the case of Boop Singh (Supra) wherein the Apex Court dealing with compromise decree involving creation of new right and title in praesenti in respect of immovable property value of which Rs.100/- or upwards has held that if there is no pre-existing rights involved in such a compromise, document is compulsorily registerable under Section 17 of the Registration Act.</font><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">17.34.<span style=\"white-space: pre;\">	</span>Thus, from the above it is clear that, even if compromise entered in a suit creating right for the first time in respect of immovable property along with poojaraki rights of which Rs.100/- onwards requires registration under Section 17(1)(b) of the Registration Act.</font><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">17.47.<span style=\"white-space: pre;\">	</span>Holistic reading of these material evidence would reveal that the said documents referred to by the defendants namely Exs.D.8 to 12 cannot be read in isolation with the other factual aspect of the matter namely the alleged relinquishment of right of Poojaraki and half a share in the immovable property by Parawwa. The said fact not having been established by the defendants it is hard to accept the plaintiffs were not offering the Poojaraki to the extent of their half share at their turn along with the defendants. The admission of DW.1 and deposition of DW.2 with regard to division of properties and Poojaraki respectively becomes relevant at this juncture and the Trial Court and the First Appellate Court have rightly taken these aspects of the matter into consideration in negating the claim of the defendants that they were exclusively enjoying their Poojaraki rights during their turn of cycle of eight years in exclusion to the plaintiffs.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">17.48.<span style=\"white-space: pre;\">	</span>Aforesaid reasons and analysis, the substantial question of law No.1 is answered in the negative. In that, the Trial Court and the First Appellate Court have committed no error in decreeing the suit and there is no misreading of Ex.D.1, a compromise decree passed in O.S.No.102/1917 and the compromise petition. </span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">Reg: Substantial question of Law No.2 :</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">17.49.<span style=\"white-space: pre;\">	</span>Substantial question of law No.2 was reframed/reformulated on 30.08.2021 referring to relief of granting of permanent injunction, when the tenancy issue is pending before this Court in W.A.No.30286/2013 C/w W.A.No.30277/2013.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">17.50.<span style=\"white-space: pre;\">	</span>For the purpose of answering this substantial question of law it is necessary to bear in mind the pleadings in the suit and the issues involved. The suit is one for injunction in respect of Poojaraki rights and the benefits attached to the Poojaraki rights and also in respect of suit schedule properties. The said relief of injunction is being sought by the plaintiffs based on their claim of inheritance through their grandmother Parawwa. Defendants on the other hand while denying the claim of the plaintiffs have set up their rights both in respect of Poojaraki rights as well as the suit properties on the basis of relinquishment purportedly made by Parawwa in favour of their grandfather Parayya in the year 1919 for consideration of Rs.500/- as already noted above. Thus, there is no issue or contention raised in the suit which bars the jurisdiction of the Civil Court either expressly or impliedly.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">17.60.<span style=\"white-space: pre;\">	</span>Analysis of the aforesaid judgments of the Apex Court and of this Court would make it clear that the jurisdiction of the Civil Court is not barred merely because a matter is pending consideration which regard to issue of tenancy. The test to be applied is, if the proceedings before the Civil Court directly deal with the question of determination of nature of the land to be agricultural land or not and claim of tenancy. As noted above, these two issues are not at all subject matter of the present proceedings. Therefore the Trial Court and the First Appellate Court have committed no error in granting permanent injunction.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">17.62.<span style=\"white-space: pre;\">	</span>Thus, in view of the above the substantial question of law No.2 is answered in the negative.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">Reg: Substantial Question of Law No.3 :</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">17.63.<span style=\"white-space: pre;\">	</span>It is not the case of the defendants that they had pre-existing right over the suit property. Though it is not pleaded in the written statement, in this appeal memo, it is contended that since Parawwa did not have right under the Hindu Women’s Right to Property Act, 1937, the defendants being reversionary heirs became entitled to share in the property of Channayya.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">17.66.<span style=\"white-space: pre;\">	</span>It is not in dispute that Chanayya passed away some where prior to 1917 and succession opened upon on his demise and Parawwa was the only legal heir. There is also no dispute that parties were governed under the Bombay School of inheritance. Thus, as noted above, both in terms of Chapter-V as well as Chapter-VI of Mulla’s Hindu Law, Parawwa being full sister of Channayya was entitled for inheritance of his estate. This being legal and factual aspect of the matter, undoubtedly Parawwa was entitled for half of the share of the family properties and also half of the share in the poojaraki rights.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\">17.67.<span style=\"white-space: pre;\">	</span>Thus from the above, it is clear that the appellants/defendants have failed to establish that the provisions of Hindu Women’s Right to Property Act, 1937 disentitled Parawwa from succeeding to the estate of her brother-Channayya. On the other hand, as seen above under Bombay School of Inheritance, sister being <span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">proximately related to brother was entitled for inheritance and was also considered as an heir along with other female heirs. The substantial question of law No.3 is answered in the negative. In that the Trial Court and the First Appellate Court have committed no error in this regard.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">Reg: Substantial Question of Law No.4 :</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">17.68.<span style=\"white-space: pre;\">	</span>A judgment is said to be perverse if it is not based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on record or where the core issue is not decided. Perusal of the judgment and decree passed by the Trial Court and the judgment and order passed by the First Appellate Court, it is clear that both the Courts have independently appreciated and assessed the material evidence produced by the parties and have meticulously gone through the contents of documents produced by the parties. As seen in paragraph Nos.29, 30, 31 and 32 of the judgment the Trial Court has read through the contents of Ex.D.1, Ex.D.14 and also the Plaint in O.S.No.102/1917. It has also gone through the deposition of DW.2 and DW.3 and has analyzed the contents of documents in the light of the deposition of these witnesses. The First Appellate Court has yet again re- appreciated the evidence minutely and thereafter has affirmed the finding and conclusion arrived at by the Trial Court.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">17.69.<span style=\"white-space: pre;\">	</span>In that view of the matter, Substantial question of Law No.4 is answered in the negative<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">ORDER </span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">i. This Regular Second Appeal is hereby dismissed.</span></font></span></p>', '6f21ff9a35fb0cfdbe939fbaf871a9e8.JPG', '5231ecf88684f54cd5ee3061e75a01ed.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-29', 1, '', '', '2023-03-28 15:52:26', '2023-03-29 03:15:52');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2846, '0t8csqDZz7Il1vQ8juU3bVzXQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Urban Land (Ceiling and Regulation) Act. If possession of excess land was not taken lawfully by the Competent Authority, landowners are entitled for restoration of the land despite the delay in approaching the Court. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mallavva and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 103235 of 2021 decided on 15 November 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandagoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The land originally belonged to Sri Ramappa S/o.Shivabasappa Sheelvant and after his life, Smt.Gouravva had filed a declaration under Section 6 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as ‘Act’ for short). The then Competent Authority in exercise of the power conferred under Section 10(3) of the Act, declared that the deceased Smt.Gouravva was holding excess land to an extent of 14687.3839 square meters. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The Urban Land (Ceiling and Regulation) Act, 1976 was repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as ‘Repeal Act’ for short). Section 3(2) of the Repeal Act specifies that, the land which is deemed to have been vested in the State Government under Section 10(3) of principal Act, but possession of which has not been taken over by the State Government or any person duly authorised by the State Government, such land shall be restored to the original owner subject to the owner refunding the amount received as compensation.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 4.<span style=\"white-space: pre;\">	</span>In light of the provisions contained in the Repeal Act, the petitioner submitted a representation with the Revenue Authority for deleting the name of the Government in the revenue records, stating that the lawful possession of the subject land was not taken by the Government as specified under Section 10(6) of the Act. The said representation was rejected by the Tahasildar, Dharwad, on the ground that the compensation has been paid to the owner of the subject land, and the subject land has been allotted to the Police Department. Taking exception to the same, petition is filed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>The points that arise for consideration are as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space:pre\">	</span>Whether the lawful possession of the subject land was taken as specified under Sections 10(5) and (6) of the Act, 1976?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> ii)<span style=\"white-space:pre\">	</span>Whether the petitioners are not entitled for restoration of the subject land on the ground of delay and laches?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Reg. Point (i):</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>In view of the dictum of the Hon’ble Supreme Court in the aforesaid cases, mere vesting of land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land, unless there has been a voluntary surrender of vacant land. The State has to establish that there has been a voluntary surrender of vacant land and delivery of peaceful possession under sub- section (5) of Section 10 or forceful dispossession under sub- section (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 4 of the Repeal Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>The then competent authority in exercise of the power conferred under Section 10(3) of the Act, passed an order dated 30.05.1986 declaring that the declarant was holding an excess land to an extent of 14687.3839 sq. mtrs. and the said order has attained finality. The respondent-State claims that the possession of the land declared as excess land was taken in the year 1985 and thereafter, the name of the Government was mutated in the revenue records in respect of the subject land vide M.E.No.3388 certified on 18.05.1985 at Annexure-F. To substantiate the claim that, the lawful possession of the subject land was taken as specified under Sections 10(5) or 10(6) of the Act, the respondent has neither produced any document nor stated in the statement of objection as to who has taken the possession of the subject land as specified under Section 10(6) of the Act. Hence, it is implied that lawful possession of the subject land was not taken as specified under Section 10 (5 ) or (6) of the Act, 1976.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>The possession is alleged to have been taken by the Revenue Inspector by drawing panchanama, however, the respondents have not placed any material to substantiate the said claim. Even otherwise, the Revenue Inspector was not the competent Authority specified in Section 10(6) of the Act, 1976 to take possession. The lawful possession of the subject land having not been taken as specified under Section 10(6) of the Act, 1976, the petitioners are entitled for restoration of the subject land as specified under Section 3(2) and Section 4 of the Repeal Act, 1999, since de jure possession of the subject land was taken and not de facto possession as held by the Hon’ble Supreme Court in the case of Gajanan Kamlya Patil (supra). 17.<span style=\"white-space: pre;\">	</span>Even accepting for a moment that, the possession of the subject land was taken by the Revenue Inspector concerned by drawing panchanama, the same cannot be construed as one taken by the competent Authority, since the Revenue Authority is not the competent Authority to take possession as held by the Division Bench of this Court in the case of Mangalore Urban Development Authority (supra). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space: pre;\">	</span>Hence, point No.(i) is answered in favour of the petitioners holding that the lawful possession of the subject land having not been taken by the competent Authority under Section 10(5) and (6) of the Act, 1976, the petitioners are entitled for restoration of the subject land.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>Reg. Point No.(ii):</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space:pre\">	</span>In the instant case, the respondent-State has not produced any document to substantiate its claim that lawful possession was taken under Section 10(5), or 10(6) of the Act, 1976. The possession of the subject land having not been taken, the State Government is obligated under Sections 3(2) & 4 of the Repeal Act to restore the subject land. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22.<span style=\"white-space:pre\">	</span>The Division Bench of this Court in Mallaiah Basalingaiah Hiremath supra has held that, when the competent authority has passed an order without jurisdiction, even if there is a delay, it was for the learned Single Judge to set aside the order and give relief to the parties, and under those circumstances, the appellant therein cannot be made to lose his valuable agricultural land and similarly on the ground of delay in approaching the Court, the legitimate rights of a farmer cannot be taken away by the Government on technicality.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space:pre\">	</span>The Division Bench of this Court in Vaijayanti Vs. State of Karnataka reported  in  2014  SCC  OnLine  Kar 10086, relying on the Division Bench judgment of this Court in the case of Mallaiah Basalingaiah Hiremath (supra), at para 9, has held that the delay of 18 years in filing the writ petition calling in question the order of the competent authority, nevertheless since the order is without jurisdiction is non est, hence the question of delay and laches does not arise.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>27.<span style=\"white-space:pre\">	</span>The State is under an obligation to follow due process of law for taking possession of immovable properties of its citizens. The State cannot deprive the right over immovable property by taking unlawful possession and continue to be in unlawful possession stating that the writ petition is hit by delay and laches, when the State Government is a welfare state and governed by rule of law. The petitioner cannot be deprived of his valuable rights over the immoveable property, which is not only a constitutional right but also human right, when there is violation of his substantial legal rights. Though it is alleged that the subject land is allotted to the Police Department, no material is placed that the subject land is developed by putting up any construction, which implies that the subject land is still vacant. Admittedly, the lawful possession much less unlawful possession of the subject    land having not been taken, the petitioners cannot be deprived of their legitimate right under Section 3(2) and 4 of the Repeal Act, 1999 only on the ground of delay. The State Government cannot enrich itself by claiming to be in possession which is unlawful and the said unlawful possession does not bestow any right to the State Government. Hence, the submission of the learned Additional Government Advocate that the writ petition is hit by delay and laches is not acceptable, and the delay if any in filing this writ petition deserves to be condoned. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>28.<span style=\"white-space: pre;\">	</span>Hence, point No.(ii) is answered in favour of the petitioners holding that the delay in approaching the Court is not a bar for restoring the subject land in favour of the petitioners in light of Section 3(2) of the Repeal Act, 1999, since possession muchless lawful possession was not taken under Section 10(5) and (6) of the Act, 1976 by the Revenue Inspector.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>29.<span style=\"white-space:pre\">	</span>This Court in W.P.No.103654/2017 disposed of on 09.04.2021, W.P. No.61621/2009 disposed of on 04.09.2019, W.P. No.108986/2017    disposed of on 16.09.2021, W.P. No.100495/2015 C/w W.P. No.102484/2015, disposed of on 05.10.2021, and W.P. No.63674/2011 disposed of on 02.11.2011, has held that the proceedings stand abated since lawful possession of the land which has been declared as excess land has not been taken by the competent authority as declared by Section 10(6) of the 1976 Act. The State Government has implemented the similar orders passed by this Court in various writ petitions. Following the same, this Court is also of the opinion that the impugned proceedings declaring that the petitioner is holding excess land to an extent of 14687.3839 sq. mtrs. stands abated.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space:pre\">	</span>Writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a818304afefade208d445276e5d743f6.jpeg', '3e638554d532dde5ee569dfef488f57d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-29', 1, '', '', '2023-03-28 17:01:19', '2023-03-29 07:57:05'),
(2847, 'rEAkudLb0Q4fRM5pwrezw3mT0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Acquisition of lands under the National Highways Act, 1956. Landowners are entitled for solatium as if the acquisition has been made under the provisions of Land Acquisition Act, 1894. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Indus Tech Park Pvt Ltd Vs The Special Land Acquisition Officer and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 38104 of 2013 decided on 13 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S Dixit.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petitioner is knocking at the doors of Writ Court for assailing the provisions of Section 3-A to 3-I of the National Highways Act, 1956, as amended, which inter alia exclude application of the provisions of erstwhile Land Acquisition Act, 1894 inter alia for the purpose of awarding solatium and interest.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space:pre\">	</span>After service of notice, the Respondents having entered appearance through their Senior Panel Counsel, oppose the Petition inter alia contending that without the Union of India as a party, the question of constitutionality of the provisions cannot be gone into; the decision of the learned single judge of this Court in LALITA vs. UNION OF INDIA, AIR 2003 KAR 165, which has struck down Section 3-J of the 1894 Act would now pale into insignificance since W.A.Nos.6115-6117/2002 between UNION OF INDIA vs. LALITHA filed against the same has been disposed off vide judgment dated 15.10.2019 in terms of Apex Court decision in UNION OF INDIA AND ANOTHER vs. TARSEM SINGH AND OTHERS, AIR 2019 SC 4689. She also seeks deferment of hearing of this case contending that with effect from which date the interest is to be reckoned is res sub judis<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>Having heard the learned counsel for the parties and having perused the Petition Papers, this Court is inclined to grant   a limited indulgence in the matter as under and for the following reasons: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a)<span style=\"white-space:pre\">	</span>There is force in the submission of learned counsel for the Petitioner that now in view of the Division Bench decision made in terms of Apex Court decision supra, the 1st prayer for quashment of the provisions of the 1894 Act has become infructuous and therefore, the alternate prayer is to be granted to the extent of awarding solatium and other related benefits like interest. The Division Bench following UNION OF INDIA AND ANOTHER vs. TARSEM SINGH AND OTHERS, AIR 2019 SC 4689, has said as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“5. When the matters were taken up today, learned counsel for the parties jointly submitted that the controversy in the instant appeals are squarely covered by an order dated 19.09.2019 passed by the Hon’ble Supreme Court in Civil Appeal No.7064/2019 namely Union of India and another vs. Tarsem Singh and others.”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b)<span style=\"white-space: pre;\">	</span>In view of the above declaration of law by the Apex Court in terms of which the Division Bench also has disposed off the Writ Appeal, petitioner is entitled to award of solatium as if the acquisition has been made under the provisions of Land Acquisition Act, 1894. This solatium has to be computed with effect from the date the possession of property has been taken which has been the consistent view of the courts all through. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(c)<span style=\"white-space: pre;\">	</span>The contention of the Panel counsel for the Respondent that the hearing of the case be deferred till after the Apex Court clarifies the reckoning date for computation of solatium and interest cannot be agreed with since there is no stay by the Apex Court unlike there was one when the invocability of Section 24(2) of THE Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 was being debated. In view of the above, the Writ Petition is allowed in terms of prayer No.3 and the Respondents are directed to compute the solatium part of the compensation reckoned from the date of taking actual possession of the subject land and pay it to the Petitioner with statutory rate of interest, within a period of three months, if he establishes his credentials in accordance with law. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Costs made easy.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '896b9dcfa86fb8186f3e3a94c3b81a78.JPG', 'ab862bc7c95121261b33e46ff30f7c93.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-29', 1, '', '', '2023-03-28 17:29:16', '2023-03-29 12:32:39'),
(2848, 'g9OSZiHfWpZcEEd2ehGlEbtJ5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'IBC. Once the parties settle the dispute even before the Committee of Creditors is constituted, the parties can withdraw the Corporate Insolvency Resolution Process. NCLT cannot refuse withdrawal quoting other claims. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Abhishek Singh Vs Huhtamaki PPL Ltd and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2241 of 2023 decided on 28 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B.R. Gavai and Justice Vikram Nath.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The appellant, a suspended Director of the Corporate\r\nDebtor : Manpasand Beverages Ltd. (respondent 2), has\r\nfiled this appeal assailing the correctness of the order dated\r\n13.04.2021 passed by the National Company Law <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Tribunal, Ahmedabad Bench at Ahmedabad in I.A. No.196\r\nof 2021 arising out of C.P.(I.B.) No.503 of 2019 rejecting the\r\napplication of the appellant under section 12A of Insolvency\r\nand Bankruptcy Code, 2016 for withdrawal of the\r\nCorporate Insolvency Resolution Process</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. CD is in the business of manufacturing and\r\ndistribution of fruit beverages. It has approximately 700\r\nemployees and a turnover of Rs.984.96 Crores in the\r\nFinancial Year 2018-2019. The Operational Creditor5\r\nHuhtamaki PPL Ltd. (respondent No.1) used to supply\r\npackaging material to the CD.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. The facts as stated above are not disputed. The\r\napplication had been filed prior to the constitution of the\r\nCoC. The settlement had been arrived at within two days\r\nof the admission order. The payment as per the\r\nsettlement had been made within the next five days i.e.\r\nin a weeks’ time from the date of admission. The\r\napplication for withdrawal was filed on the 10th day. The\r\nNCLT ought to have immediately taken the decision on\r\nthe application. Once the parties had settled the dispute\r\neven before the CoC had been constituted, the\r\napplication ought to have been allowed then and there\r\nrather than await the other creditors to jump into the fray\r\nand allow the IRP to proceed further.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">33. Now coming to the legality and the correctness of\r\nthe impugned order passed by the NCLT in the present\r\nappeal. Majority of the findings recorded in the impugned\r\norders are already covered above. An important issue\r\nremains to be considered is the finding recorded by the\r\nNCLT that Regulation 30A of IBBI Regulations was not\r\nbinding upon it and could not be of any help to the CD\r\nor its suspended Directors. In this respect, we may first\r\nrefer to the judgment of this Court in the case of Swiss\r\nRibbons (supra). Section 12A of IBC permitted\r\nwithdrawal of applications admitted under sections 7, 9\r\nor 10 of IBC. But the said provision envisaged a situation\r\nwhere the withdrawal application would be filed after the\r\nCoC has been constituted, as it requires approval of 90\r\nper cent voting shares of CoC. There was no provision </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which would deal with withdrawal of proceedings before\r\nconstitution of CoC. Even Regulation 30A, as it existed\r\nearlier, did not contemplate of consideration of an\r\napplication for withdrawal filed before constitution of\r\nCoC. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">This issue was flagged by this Court in the case of\r\nSwiss Ribbons (supra) in paragraph 82 thereof which is\r\nreproduced hereunder:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“82. It is clear that once the Code gets triggered\r\nby admission of a creditor’s petition under\r\nSections 7 to 9, the proceeding that is before the\r\nadjudicating authority, being a collective\r\nproceeding, is a proceeding in rem. Being a\r\nproceeding in rem, it is necessary that the body\r\nwhich is to oversee the resolution process must\r\nbe consulted before any individual corporate\r\ndebtor is allowed to settle its claim. A question\r\narises as to what is to happen before a\r\nCommittee of Creditors is constituted (as per\r\nthe timelines that are specified, a Committee of\r\nCreditors can be appointed at any time within\r\n30 days from the date of appointment of the\r\ninterim resolution professional). We make it\r\nclear that at any stage where the Committee of\r\nCreditors is not yet constituted, a party can\r\napproach NCLT directly, which Tribunal may, in\r\nexercise of its inherent powers under Rule 11 of\r\nNCLT Rules, 2016, allow or disallow an\r\napplication for withdrawal or settlement. This\r\nwill be decided after hearing all the parties\r\nconcerned and considering all relevant factors\r\non the facts of each case.”</span><span style=\"font-size: 12pt;\"> </span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><span style=\"font-size: 12pt;\"><b><br></b></span></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>This Court had required the NCLT to invoke its powers\r\nunder Rule 11 of the NCLT Rules.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34. It was after the observations made by this Court in\r\nthe case of Swiss Ribbons (supra), as noted above and\r\nalso considering the aspect that large number of orders\r\nwere being passed by this Court invoking Article 142 of\r\nthe Constitution that IBBI Regulations which were\r\nframed by the Insolvency and Bankruptcy Board of\r\nIndia21 exercising powers conferred under sections 5, 7,\r\n9, 14, 15, 17, 18, 21, 24, 25, 29, 30, 196, 208 read with\r\nsection 240 substituted section 30A vide notification\r\ndated 25.07.2019. The Board was conferred with powers\r\nto frame regulations for various purposes referred to in\r\nsection 240 of IBC and the other allied sections. These\r\nregulations may be subordinate in character but would\r\nstill carry a statutory flavor and would be binding on the\r\nNCLT. The NCLT committed an error in holding that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Regulation 30A would have no binding effect. This would\r\namount to defeating the very purpose of substituting\r\nRegulation 30A in IBBI Regulations on 25.07.2019 after\r\nthe judgment of Swiss Ribbons(supra) which was dated\r\n25.01.2019.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>35. Section 12A of IBC permits withdrawal of\r\napplications admitted under sections 7, 9 and 10 of IBC.\r\nIt permits withdrawal of such applications with approval\r\nof 90 percent voting share of CoC in such manner as may\r\nbe specified. The role of CoC and 90 percent of its voting\r\nshare approving the said withdrawal would come into\r\nplay only when CoC has been constituted. Section 12A\r\ndid not specifically mention withdrawal of such\r\napplications where CoC had not been constituted but at\r\nthe same time it does not debar entertaining applications\r\nfor withdrawal even before constitution of CoC.\r\nTherefore, the application under section 12A for\r\nwithdrawal cannot be said to be kept pending for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">constitution of CoC, even where such application was\r\nfiled before constitution of CoC. The IBBI which had the\r\npower to frame Regulations wherever required and in\r\nparticular section 240 of IBC for the subjects covered\r\ntherein had accordingly substituted Regulation 30A\r\ndealing with the procedure for disposal of application for\r\nwithdrawal filed under section 12A of IBC. The\r\nsubstituted Regulation 30A of IBC as it stands today\r\nclearly provided for withdrawal applications being\r\nentertained before constitution of CoC. It does not in any\r\nway conflicts or is in violation of section 12A of IBC.\r\nThere is no inconsistency in the two provisions. It only\r\nfurthers the cause introduced vide section 12A of IBC.\r\nThus, NCLT fell in error in taking a contrary view.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>40. Both the parties have relied upon paragraph 82 of the\r\njudgment in the case of Swiss Ribbons (supra).\r\nAccording to the appellant, the NCLT ought to have\r\nexercised its inherent powers under Rule 11 of the NCLT\r\nRules whereas for the intervenors it is submitted that\r\nthis Court had observed that power under Rule 11 would\r\nbe exercised after hearing all concerned parties. It may <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be noted that at the time when the application for\r\nwithdrawal of the proceedings was filed the CoC was not\r\nconstituted as such there could not have been any other\r\nconcerned parties except the OC, CD and IRP. It was only\r\nbecause of the delay caused by the NCLT in disposing of\r\nthe applications under section 12A of IBC and Regulation\r\n30A of IBBI Regulations that large number of creditors\r\nfiled their claims. The inherent powers are to be invoked\r\nin order to meet the ends of justice which, in our opinion,\r\nthe NCLT failed to invoke.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n41. Regulation 30A of IBBI Regulations provide a\r\ncomplete mechanism for dealing with the applications\r\nfiled under such provision. The issue raised by the IRP\r\nregarding its claim for expenses is well taken care of\r\nunder the said provision. Various safeguards have been\r\nprovided in Regulation 30A of IBBI Regulations to be\r\nfulfilled by the OC which apparently have been fulfilled\r\nas there is no complaint in that regard either by the IRP </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">nor it is apparent from the impugned order of the NCLT.\r\nThus, the objection raised by the IRP does not merit any\r\nconsideration in this appeal.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n42. For all the reasons recorded above, the impugned\r\norder of the NCLT cannot be sustained. The application\r\nfiled under Regulation 30A of IBBI Regulations deserves\r\nto be allowed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">43. Accordingly, the appeal is allowed and the\r\nimpugned order of NCLT is set aside. Further, the\r\nApplication No. 196 of 2021 also deserves to be allowed\r\nalong with the application under Regulation 30A of IBBI\r\nRegulations. The Application under section 9 of IBC filed\r\nby the OCs shall stand withdrawn. It is further provided\r\nthat any claim for expenses incurred may be dealt with\r\nby the NCLT in accordance with law.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>45. Pending applications, if any, are disposed of.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'aa37dcf497a960dedd97af4951c3aca4.jpeg', 'a5c03f7bc94be289badb9c8ec49a1e0e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-31', 1, '', '', '2023-03-29 12:55:47', '2023-03-31 10:39:20');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2849, '8Or6ys2zDNZjGukxiDZWj6Qyp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'If a person has no role to play in the entire loan transaction with the bank, issuance of Look Out Circular against him cannot be justified. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Himayath Ali Khan Vs Ministry of Home Affairs and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 24074 of 2022 decided on 16 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is before this Court calling in question a Look Out Circular (‘LOC’ for short) dated 07-03-2022 issued by the 2nd respondent/Bank of Baroda (‘the Bank’ for short) and executed by the 1st respondent/Bureau of Immigration and has sought a consequent direction by issuance of a writ in the nature of mandamus or declaration declaring that the action of the 2nd respondent/Bank in issuing LOC to be arbitrary and illegal and also for other consequential reliefs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>Brief facts that lead the petitioner to this court in the subject petition, as borne out from the pleadings, are as follows:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> The petitioner claims to be having certain business operations at Bangalore in wood products for over 35 years. A Company by name Associate Décor Limited (‘Company’ for short) comes to be registered in the year 2007 under the provisions of the Companies Act, 1956, a company that would deal with wood products in the State of Karnataka. The petitioner claims to have assets and businesses both in India and abroad particularly in United Arab Emirates (‘UAE’) and the Kingdom of Saudi Arabia (‘SA’) for which purpose the petitioner frequently travels both to UAE and SA. The Company had obtained finance from the 2nd respondent/Bank mortgaging a property worth Rs.199/- crores. The petitioner was at the relevant point in time Director of the Company and had not stood as a guarantor to the loan obtained by the Company. According to the averment in the petition the petitioner was only a non-functional Director and there were number of guarantors who stood guarantee to the loan advanced to the Company. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>When the loan became sticky, consortium of Banks initiated various proceedings against the petitioner as the Company had defaulted in repayment after obtaining finance from several Banks. One such proceeding was instituted before the Debts Recovery Tribunal, Bengaluru (‘DRT’) in O.A.No.629 of 2021 by the Bank against the Company for recovery of the amount that was due to be paid to the Bank. The petitioner was not a party to the proceedings. The averment in the entire petition is that the petitioner is a non-Executive Director of the Company as he has nothing to do with the borrowals of the Company. Things standing thus, the petitioner wanted to travel to UAE and SA for business purpose. At that point in time, LOC is issued by the 2nd respondent/Bank on the ground that recovery proceedings before the DRT are pending consideration against the petitioner and the petitioner, if permitted to travel is likely to escape from those proceedings. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>The petitioner on coming to know that his right to travel has been curtailed by the act of the Bank approached the Bank seeking to withdraw the LOC by bringing to its notice that he has nothing to do with the loan account or the loan amount that was sought and granted to the Company. The LOC, as observed hereinabove, has originated from the 2nd respondent and the reason for such generation of LOC is that DRT proceedings are pending against the Company. On receipt of a requisition from the 2nd respondent/Bank for issuance of LOC, the 1st respondent/Bureau of Immigration issues LOC against the petitioner on 07-03-2022 and curtails his travels. The curtailment of his travel is what drives the petitioner to this Curt raising a challenge to the LOC so issued by the 2nd respondent and executed by the 1st respondent.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>The issue lies in a narrow compass namely,<i> “whether the 2nd respondent/Bank could have otherwise curtailed fundamental right of the petitioner to travel abroad, except in accordance with law?”</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>The amount that was borrowed by the Company had become sticky. The Bank initiated proceedings against the Company before the Debts Recovery Tribunal, Bengaluru in O.A.No.629 of 2021. A perusal at the cause title therein would indicate that the petitioner is not even made a party to those proceedings. The facts of the case as narrated before the Tribunal would indicate that the petitioner had no role to play in the borrowing of the amount by the Company from the 2nd respondent/Bank albeit, prima facie. The issue now is, in the teeth of the aforesaid facts, where the petitioner is yet to be shown to be involved in any case of embezzlement of funds or fraud played with the Bank being Director of the Company, could lead to issuance of LOC curtailing travel of the petitioner abroad.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>The issuance of LOC which comes about on 07-03-2022 with the 2nd respondent being the originator is bereft of reasons as to why the Bank wants curtailment of travel of the petitioner. The afore-quoted excerpts of the loan document nowhere indicates that the petitioner is the borrower; no criminal proceedings are pending against him; there is an embargo ordered by the Court for him to travel, nor that the petitioner is likely to evade trial if he is permitted to travel to UAE. The petitioner, even if it is construed to be that he is the Director of the Company, the travel of a citizen cannot be curtailed by the Bank on the ground that he is in default of loan amount. Issuance of LOC has serious repercussions, first of which is that he will not be able to move out of the shores of the nation, notwithstanding any embargo placed by any Court of law.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15. The issue whether a LOC can be issued against a Director of a Company against whom no proceedings are initiated or pending before any Court of law is no longer res integra, as the Division Bench of the High Court of Madras in the case of KARTI P.CHIDAMBARAM v. BUREAU OF IMMIGRATION has held as follows:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>73.<span style=\"white-space:pre\">	</span>As observed above, the issuance of Look Out Circulars is governed by executive instructions as contained in the Office Memoranda Nos. 25022/13/78-F1 dated 05.09.1979 and 25022/20/98-FIV dated 27.12.2000, as modified by Office Memorandum dated 27.10.2010. Such LOCs cannot be issued as a matter of course, but when reasons exist, where an accused deliberately evades arrest or does not appear in the trial Court. The argument of the learned Additional Solicitor General that a request for Look Out Circular could have been made in view of the inherent power of the investigating authority to secure attendance and cooperation of an accused is contrary to the aforesaid circulars and thus, not sustainable. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>74.<span style=\"white-space:pre\">	</span>It is, in the view of this Court, too late in the day to contend that whether or not to issue an LOC, being a executive decision, the same is not subject to judicial review. It is now well settled that any decision, be it executive or quasi-judicial, is amenable to the power of judicial review of the writ Court under Article 226 of the Constitution of India, when such decision has adverse civil consequences. An LOC, which is a coercive measure to make a person surrender and consequentially interferes with his right of personal liberty and free movement, certainly has adverse civil consequences. This Court, therefore, holds that in exercise of power of judicial review under Article 226 of the Constitution, the writ Court can interfere with an LOC. The question is whether the writ Court should exercise its discretionary jurisdiction to interfere with the impugned LOC.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 75.<span style=\"white-space:pre\">	</span>In view of the finding of this Court that the conditions precedent for issuance of the impugned LOC were absent, and the impugned LOC is liable to set aside on that ground, we need not go into the questions of whether an LOC could have been issued without statutory sanction, or whether the respondents concerned had jurisdiction to issue the impugned LOC. However, in our view, the Look Out Circular was issued in hot haste when the conditions precedent for issuance of such Circular did not exist. The impugned Look Out Circular is, thus, liable to be set aside.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>After the judgment in the case of KARTI P.CHIDAMBARAM (supra) a fresh set of guidelines are issued by the Union of India. Those guidelines are the ones extracted hereinabove. After the new guidelines coming into force, the Delhi High Court has in the judgment of RANA AYYUB v. UNION OF INDIA has held as follows:<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>“12. In the particular facts of the case, it becomes evident that the LOC was issued in haste and despite the absence of any precondition necessitating such a measure. An LOC is a coercive measure to make a person surrender and consequentially interferes with petitioner\'s right of personal liberty and free movement. It is to be issued in cases where the accused is deliberately evading summons/arrest or where such person fails to appear in Court despite a Non-Bailable Warrant. In the instant case, there is no contradiction by the respondent to the submission of the petitioner that she has appeared on each and every date before the Investigating Agency when summoned, and hence, there is no cogent reason for presuming that the Petitioner would not appear before the Investigation Agency and hence, no case is made out for issuing the impugned LOC. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>The impugned LOC is accordingly liable to be set aside as being devoid of merits as well as for infringing the Human right of the Petitioner to travel abroad and to exercise her freedom of speech and expression. For the reasons discussed above, the impugned LOC is set aside and quashed. However, a balance has to be struck qua the right of the investigation agency to investigate the instant matter as well as the fundamental right of the petitioner of movement and free speech.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The High Court of Delhi in the case of RANA AYYUB holds that the LOC is issued against the petitioner therein in the hottest haste as he is not the accused in any crime so registered. The Delhi High Court holds that personal liberty to travel cannot be taken away except in accordance with law permits travel of the petitioner therein. In the light of the afore-quoted judgments of the High Court of Madras and the High Court of Delhi what would unmistakably emerge is, taking recourse to LOC against persons like the petitioner if they have a role to play in the alleged episode of default of payment of loan to the tune of several crores. But, the issue would be whether the 2nd respondent/Bank has demonstrated that the petitioner has any role to play in the borrowal account and the default. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>All that the petitioner is now asking is, travel to UAE and Saudi Arabia for the purpose of business and seeks back to the shores of the nation. It is his grievance that the LOC has come in his way. Therefore, in the peculiar facts of this case, I deem it appropriate to permit the petitioner to travel for a brief period and come back to the shores of the nation, after conclusion of his work at UAE and Saudi Arabia. This direction is apt to be issued in the light of the fact that the petitioner is not an accused in any crime registered except the recovery proceedings before the Debts Recovery Tribunal, Bengaluru where he is not a party to the proceedings.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(i)<span style=\"white-space:pre\">	</span>Writ Petition is disposed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7cfe81054d22ce8f50e8588c1b968560.jpeg', 'dc673d38b0a11179ba4f0380e0df17ad.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-30', 1, '', '', '2023-03-29 13:18:17', '2023-03-30 08:03:23'),
(2850, 'SU2MQ5DjlSWfnLGkqH1LBb36g', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Confiscation of goods under Section 130 of the CGST Act must be preceded by an opportunity of being heard and not mere opportunity of filing objections to the action contemplated. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Shree Pampapathy Enterprises Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 101517 of 2023 decided on 21 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.I. Arun.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The petitioner being owner of certain goods was transporting the same from Mundgod, Uttara Kannada to Ongloe Prakasham, Andhra Pradesh. The goods and conveyance were seized near Ananthpur Bypass Toll Plaza, Ballari, proceedings were initiated and the impugned order has been passed under the provisions of Section 130 of the CGST Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>The said order has been challenged on the ground that the same has been passed without affording proper opportunity of hearing to the petitioner and the same is in violation of Section 130(4) of the CGST Act, 2017 and in violation of the principles of natural justice and on other grounds.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">6.<span style=\"white-space: pre;\">	</span>Section 130 of the CGST Act is a code by itself, which provides for confiscating the goods and the conveyance and under certain eventualities the confiscated material vests with the Government and the same can be auctioned. When such harsh measures are initiated against any person, it is very essential that a proper opportunity of hearing has to be given and what is contemplated in Section 130(4) is “an opportunity of being heard” and not a mere opportunity of filing objections to the action contemplated. In the instant case, the petitioner has been granted an opportunity to file his objections but not an opportunity of hearing. Hence, on the short point, the writ petition is liable to be allowed by setting aside the impugned order and remanding the matter back to respondent No.3 to give an opportunity of hearing to the petitioner and thereafter pass appropriate order.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space: pre;\">	</span>The writ petition is hereby allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f3c8857567580810c244df7064a641f4.JPG', '0a5fa91cb712e8f5817937c226aff79b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-30', 1, '', '', '2023-03-29 13:25:58', '2023-03-30 10:31:00'),
(2851, 'UwrlgHg4qePUUhxDQJYPzIlDR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Industrial Disputes Act, 1947. Pendency of disciplinary proceedings cannot be a ground to deny the status of a protected workman unless the workman is also involved in criminal cases. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Tata Marcopolo Motors Limited Vs The Tata Marcopolo Kratikari Karmika Union and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 100208 of 2023 decided on 17 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.I. Arun.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space: pre;\">	</span>The petitioner is a registered Company and has one of its factory in Belur Industrial Area, Dharwad. Some of its employees are members of the 1st respondent Trade Union. The 1st respondent requested the petitioner to recognize certain office bearers of the Union as protected workmen. As the petitioner did not recognize the members proposed by the 1st respondent as protected workmen, it approached the 2nd respondent for necessary orders. The 2nd respondent after hearing the petitioner and the 1st respondent, has passed the impugned order dated 20.12.2022 bearing No.UKAABE/IDA/SR-02(1)/2022-23/3878 vide   Annexure-N to the writ petition, recognizing 11 persons as protected workmen. Aggrieved by the persons at Sl.No.2, 4, 7 and 11 in the list being given the status of protected workmen, the petitioner has preferred this writ petition. With regard to other persons, petitioner has no objection for them being recognized as protected workmen. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2.<span style=\"white-space: pre;\">	</span>The case of the petitioner is that, disciplinary proceedings are initiated against persons at Sl.No.2 and 4 of the list, namely, Sri. Shivayogi Halabhavi and Sri. Veeresh Patil and the said proceedings are pending against them. It is further submitted that, disciplinary proceedings were initiated against persons at Sl.No.7 and 11, namely, Sri.Mahantesh Navani and Sri.Rajashekhar and they were dismissed from service. However, they have been ordered to be reinstated by the Labour Court, but, the order of the Labour Court has been challenged before this Court by way of writ petition and an interim order has been passed staying the order of reinstatement passed by the Labour Court. For the said reasons, it is submitted that the 2nd respondent erred in according the said persons a status of protected workmen at the behest of the 1st respondent.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Per contra, the 1st respondent submits, proceedings initiated against the said workmen have not reached finality and they continue to be the workmen for the purposes of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the ID Act’, for brevity), and in some cases, charges have been leveled after a request was made that they should be declared as protected workmen and in some cases, they were recognized as protected workmen in the previous year even though charges were pending against them, but it has been objected in the current year and for that reason, it is prayed that the writ petition be dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>Further, in the judgment of Wonderla (supra), this Court while analyzing the ratio laid down in Fouress Engineering Ltd., (supra), has observed ‘Thus, if the workmen were to face the departmental enquiry, or a criminal trial, they can be denied the special status of protected workmen’.   However, the said observation can be considered only a obiter and not a ratio. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>The basic object of law recognizing certain office bearers of Trade Union as protected workmen is because, to protect them against victimization by the employer, on account of they raising certain concerns of the employees which are not in the interest of the employer. However, it should not result in one losing sight of the fact that it is possible for undesirable persons to get the status of protected workmen, use the said benefit for their selfish purposes, at the cost of the Industry. As observed by this Court in Wonderla case (supra), the Trade Union leaders are meant to be role models for the rest of the work force. They are required canvass the just and reasonable demands of the workmen in accordance with law and oppose the workmen from being exploited by the employer, but not to harass or blackmail the employer and scuttle the Industry.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>In respect of the workmen at Sl.No.7 and 11, namely, Sri.Mahantesh Navani and Sri.Rajashekhar, disciplinary proceedings have been initiated against them and they have been found guilty of the charges and their services have been terminated. However, the Labour Court has ordered their reinstatement and the employer has challenged the award of the Labour Court by way of writ petition, which are pending before this Court and this Court has granted an interim order staying the operation of the award of the Labour Court. Thus, as of today, it has to be considered that the said persons are not fit to be workmen with the petitioner. Under the circumstances, they cannot be considered as a role model to the other employees and giving them the status of protected workmen may vitiate the work culture in the petitioner Industry.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>In respect of the workmen at Sl.No.2 and 4, namely, Sri.Shivayogi Halbhavi and Sri.Veeresh Patil, only disciplinary proceedings are initiated against them by the Management. The allegations against them are not proved. The allegations do not constitute any criminal offence and no criminal case is filed against them.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>If pendency of any disciplinary proceedings is considered sufficient to deny the status of a protected workman, then in that event, the employer can easily victimize any person. Thus, it is not appropriate to deny the status of a protected workman, if merely a disciplinary proceedings is initiated against him. However, if it is proved in the disciplinary proceedings that the person is guilty of the allegations, or if a charge sheet is filed in a criminal case, after due investigation by the police, then in that event, it has to be held that the said workman is unfit to be accorded the status of protected workman. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>In the instant case, as there is only disciplinary proceedings initiated against Sri.Shivagogi Halabhavi and Sri.Veeresh Patil, and the same is pending, I am of the opinion, it would be unjust to deny them the status of protected workmen.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i. Writ petition is allowed in part.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'cbd9d9195a728fbcc4207e1754bd0cd7.JPG', 'cd776f176a26d192e8e868c414194cd7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-30', 1, '', '', '2023-03-29 13:54:38', '2023-03-30 03:22:56'),
(2852, 'dQxD84IpK9CvLI0cU2oTDafnb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act. Person who has a driving licence to drive a light motor vehicle can also drive a transport vehicle which has an unladen weight less than 7500 kg. Insurance company is liable to pay compensation. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nagaraju Vs Sarjamma and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Miscellaneous First Appeal 2215 of 2019 decided on 15 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space: pre;\">	</span>The owner of the offending vehicle is in appeal challenging the award of Rs.11,70,000/- granted for the death of one Govinda Rao.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 2.<span style=\"white-space: pre;\">	</span>It is the case of the owner that his vehicle was not involved. It is also argued that assuming that the vehicle was involved, as the vehicle was insured, the insurer will have to be fastened with the liability. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>It is stated that the Tribunal has exonerated the insurer only on the ground that the driver of the offending vehicle did not possess the requisite endorsement to drive the offending vehicle and that he possessed a licence to drive a light motor vehicle. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>In my view, since the Hon’ble Supreme court in the case of Mukund Dewangan vs. oriental Insurance Company Limited, (2017) 14 SCC 663, has held that a person who has a driving licence to drive a light motor vehicle could also drive a transport vehicle which has an unladen weight less than 7500 kg, the insurance company will have to accept the liability to pay the compensation even if the driver of the offending vehicle did not possess the requisite endorsement to drive a transport vehicle.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 5.<span style=\"white-space: pre;\">	</span>The impugned award insofar as it relates to the exonerating the insurer of all liability is set aside and it is held that the insurance company would be liable to satisfy the compensation. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>The appeal is accordingly allowe</b>d.</font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f6a5c5bba0ff46fece8310ddd229a9da.JPG', 'd0ed2f6d51b9a0164a9550aea9b0febb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-30', 1, '', '', '2023-03-29 15:13:55', '2023-03-30 12:23:37'),
(2853, 'CeBxHJwRlYcJTqE4PcxQeoROv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Executing Court can order arrest of the judgement debtor on oral application of the decree holder, without issuing arrest notice, only if the judgement debtor is within the precincts of the Court. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Principal Secretary Department of Health and Family Welfare and others Vs Tejasco Techsoft Private Limited.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 4525 of 2023 decided on 7 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. It appears that the respondent sought to\r\nexecute the award passed in A.C.130/2022 and they made\r\nan application under section 60 of the Code of Civil\r\nProcedure seeking attachment of movables and\r\nimmovables found in the office of the petitioners. The\r\ncourt below having found that the award has attained\r\nfinality and to avoid delay in payment of the award\r\namount, ordered for arrest of the petitioners under Order\r\nXXI Rule 30 CPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The order impugned in the writ petition is\r\npatently illegal. Firstly, the respondent did not file an\r\napplication for arrest of the judgment debtors, i.e., the\r\npetitioners. They made an application for attachment of\r\nmovables and immovables. It is submitted by Sri Sunil\r\nKumar that the court below considered oral application of\r\nthe respondent and therefore ordered for arrest of the\r\npetitioners. He refers to Order XXI Rule 11 CPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. With regard to submission of Sri Sunil Kumar, it is\r\nto be stated that even though the said provision provides\r\nfor arrest of the judgment debtors on the oral application,\r\nthe condition to be satisfied is that at the time of passing\r\nof the decree, the judgment debtor must be present within\r\nthe precincts of the court or otherwise oral application\r\ncannot be considered for arrest. It is not the case of the\r\nrespondent that the petitioners were present within the\r\nprecincts of the court at the time of passing of the decree.\r\nIt was the award of the arbitrator that was put into <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">execution, not the decree of the court and therefore Rule\r\n11 of Order XXI CPC cannot be applied at all.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n5. Although Order XXI Rule 30 CPC provides for\r\ndetention of the judgment debtors, there is a procedure\r\nset down for arresting the judgment debtors. Order XXI\r\nRules 37 to 40 CPC deal with it. The judgment debtors are\r\nthe officers of the Government, and issuing warrant\r\nagainst them without issuing arrest notice cannot be\r\nsustained. In this view of the matter, the impugned order\r\nsuffers from infirmity. Therefore writ petition is allowed. </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '13d2e762eae30f16c7fa91f409f60733.JPG', 'd4ee757f7001dfe277b18afbdddcd4cb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-30', 1, '', '', '2023-03-29 15:18:54', '2023-03-30 12:26:36');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2854, '9WyNWylX0qNHGWZ3yZn5CG3Hc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Plaint cannot be rejected on the plea of resjudicata since the adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the previous suit which are beyond the scope of Order 7 Rule 11 (d), CPC. Supreme Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Prem Kishore and others Vs Brahm Prakash and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1948 of 2013 decided on 29 March 2023<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sudhanshu Dhulia and Justice J.B. Pardiwala.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This appeal, by special leave, is at the instance of the original plaintiff\r\n(landlord) of an eviction petition filed under the provisions of the Delhi Rent\r\nControl Act, 1958 (for short, ‘the Act 1958’) and is directed against the\r\njudgment and decree passed by the High Court of Delhi dated 04.05.2010 in the\r\nCivil Revision Petition No. 1332 of 2002 by which the High Court allowed the\r\nrevision petition filed by the defendant (tenant) thereby rejecting the plaint\r\nunder the provisions of Order 7 Rule 11 of the Code of Civil Procedure (CPC)\r\non the ground that the eviction petition was barred by the principles of\r\nres judicata.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. It is the case of the appellants that the respondents herein were inducted\r\nas tenants on 27.12.1987 by the father of the appellants in respect of the property\r\nbearing House No. 163 (Old No. 143) situated at Village Dhakka, Kingsway\r\nCamp, Delhi on monthly rent of Rs. 1050/- excluding the electricity, water and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">house tax. According to the appellants, the tenancy was for residential purpose.\r\nIt is also their case that the rent was duly paid till February, 1993.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. The father of the appellants served a demand notice dated 04.03.1996\r\non the respondents claiming the arrears of rent to the tune of Rs. 27,800/-.\r\nAccording to the appellants, the notice was duly served upon the respondents.\r\nHowever, the arrears of the rent was not cleared.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>5. In such circumstances referred to above, the father of the appellants\r\nfiled an eviction petition on 21.05.1996 bearing Eviction Petition No. 149 of\r\n1996 under Section 14(1)(a) of the Act 1958.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>9. It is not in dispute that no appeal was preferred against the aforesaid\r\norder dismissing the eviction petition. During the life time of the original\r\nplaintiff, namely, Samey Singh, no fresh eviction petition under Section\r\n14(1)(a) of the Act 1958 was filed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n10. After the demise of Samey Singh (original plaintiff), the appellants\r\nherein claiming as successors in interest filed another eviction petition\r\nregistered as Eviction Petition No. 136 of 2001 against the respondents herein\r\nunder Section 14(1)(a) of the Act 1958 claiming inter alia arrears of rent from\r\n01.03.1993 till the date of issuance of notice i.e. till 18.05.2001. A written\r\nstatement was filed by the respondents herein taking the stance that Samey\r\nSingh (the original plaintiff of the first eviction petition) i.e. the predecessor in\r\ninterest of the appellants herein had failed to prove the relationship of landlord\r\nand tenant between the parties and in such circumstances, the same cannot be\r\npermitted to be reopened in the second eviction petition as the same would be\r\nbarred by the principles of res judicata.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11. It appears that the respondents herein preferred an application under the\r\nprovisions of Order 7 Rule 11 of the CPC stating that the Eviction Petition No.\r\n136 of 2001 was barred by the principles of res judicata and the plaint be\r\nrejected accordingly.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. Having heard the learned counsel for the parties and having gone\r\nthrough the materials on record, the only question that falls for our consideration\r\nis whether the High Court was justified in rejecting the plaint of the eviction <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">23. Having heard the learned counsel for the parties and having gone\r\nthrough the materials on record, the only question that falls for our consideration\r\nis whether the High Court was justified in rejecting the plaint of the eviction</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. Order 7 Rule 11(d) of CPC provides that the plaint shall be rejected\r\n“where the suit appears from the statement in the plaint to be barred by any\r\nlaw”. Hence, in order to decide whether the suit is barred by any law, it is the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">statement in the plaint which will have to be construed. The Court while\r\ndeciding such an application must have due regard only to the statements in the\r\nplaint. Whether the suit is barred by any law must be determined from the\r\nstatements in the plaint and it is not open to decide the issue on the basis of any\r\nother material including the written statement in the case. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>35. In the present case, before examining the defendants’ ground of\r\nres judicata to oppose the eviction petition, several aspects may have to be\r\nlooked into. Whether such an issue was substantively at issue in the previous\r\nsuit and similar such other questions may crop up. Powers under Order 7 Rule\r\n11 of CPC under such circumstances would not be available. The High Court\r\ntherefore, committed an error in rejecting the plaint.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>36. The seminal question that we need to decide in the present appeal is\r\nwhether the first suit i.e. the Eviction Petition No. 149 of 1996 filed by late\r\nSamey Singh was dismissed on merits. To put it in other words, whether the\r\nfinding recorded by the Rent Controller while dismissing the Eviction Petition\r\nNo. 149 of 1996 that the eviction petition deserves to be dismissed as the\r\nplaintiff Samey Singh had failed to establish the relation of landlord and tenant\r\nbetween the parties could be said to be on merits so as to render the second\r\nEviction Petition No. 136 of 2001 not maintainable on the principles of res\r\njudicata<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>37. The High Court took the view that the first suit i.e. Eviction Petition\r\nNo. 149 of 1996 could be said to have been dismissed under the provisions of\r\nOrder 17 Order 3 of the CPC and, therefore, the finding recorded therein as\r\nregards the relationship of landlord and tenant could be said to be on merits and\r\nthus binding in the subsequent proceedings.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>39. Order 17 Rule 2 of the CPC provides that where, on any day to which\r\nthe hearing of the suit is adjourned, the parties or any of them fail to appear, the\r\nCourt may proceed to dispose of the suit in one of the modes directed in that\r\nbehalf by order IX or make such other order as it thinks fit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>40. The Explanation appended to Order 17 Rule 2 of the CPC provides\r\nthat where the evidence or a substantial portion of the evidence of any party has\r\nalready been recorded and such party fails to appear on any day to which the\r\nhearing of the suit is adjourned, the Court may, in its discretion, proceed with\r\nthe case as if such party was present.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>40. The Explanation appended to Order 17 Rule 2 of the CPC provides\r\nthat where the evidence or a substantial portion of the evidence of any party has\r\nalready been recorded and such party fails to appear on any day to which the\r\nhearing of the suit is adjourned, the Court may, in its discretion, proceed with\r\nthe case as if such party was present.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>41. Order 17 Rule 3 of the CPC, however, provides that where any party to\r\na suit to whom time has been granted fails to produce his evidence, or to cause\r\nthe attendance of his witnesses, or to perform any other act necessary to the\r\nfurther progress of the suit, for which time has been allowed, the Court may,\r\nnotwithstanding such default, (a) if the parties are present, proceed to decide the\r\nsuit forthwith, or (b) if the parties are, or any of them is, absent, proceed under\r\nRule 2.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>48. The aforesaid dictum as laid by the Rajasthan High Court appears to be\r\nin conflict with the decision of this Court in the case of Prakash Chander\r\nManchanda v. Janki Manchanda, (1986) 4 SCC 699, wherein this Court\r\nobserved as under:-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>“6. …It is clear that in cases where a party is absent only course\r\nis as mentioned in Order 17(3)(b) to proceed under Rule 2. It is\r\ntherefore clear that in absence of the defendant, the Court had no\r\noption but to proceed under Rule 2, Similarly the language of Rule\r\n2 as now stands also clearly lays down that if any one of the parties\r\nfail to appear, the Court has to proceed to dispose of the suit in\r\none of the modes directed under Order 9. The explanation to Rule\r\n2 gives a discretion to the Court to proceed under Rule 3 even if a\r\nparty is absent but that discretion is limited only in cases where a\r\nparty which is absent has led some evidence or has examined <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">substantial part of their evidence. It is therefore clear that if on a\r\ndate fixed, one of the parties remain absent and for that party no\r\nevidence has been examined upto that date the Court has no option\r\nbut to proceed to dispose of the matter in accordance with Order\r\n17 Rule 2 in any one of the modes prescribed under Order 9 of the\r\nCode of Civil Procedure. It is therefore clear that after this\r\namendment in Order 17 Rules 2 and 3 of the Code of Civil\r\nProcedure there remains no doubt and therefore there is no\r\npossibility of any controversy. In this view of the matter it is clear\r\nthat when in the present case on 30th October 1985 when the case\r\nwas called nobody was present for the defendant. It is also clear\r\nthat till that date the plaintiffs evidence has been recorded but no\r\nevidence for defendant was recorded. The defendant was only to\r\nbegin on this date or an earlier date when the case was adjourned.\r\nIt is therefore clear that upto the date i.e. 30th October, 1985 when\r\nthe trial court closed the case of defendant there was no evidence\r\non record on behalf of the defendant. In this view of the matter\r\ntherefore the explanation to Order 17 Rule 2 was not applicable at\r\nall. Apparently when the defendant was absent Order 17 Rule 2\r\nonly permitted the Court to proceed to dispose of the matter in any\r\none of the modes provided under Order 9.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. It is also clear that Order 17 Rule 3 as it stands was not\r\napplicable to the facts of this case as admittedly on the date when\r\nthe evidence of defendant was closed nobody appeared for the\r\ndefendant. In this view of the matter it could not\' be disputed that\r\nthe Court when proceeded to dispose of the suit on merits had\r\ncommitted an error. Unfortunately even on the review application,\r\nthe learned trial Court went on in the controversy about Order 17\r\nRules 2 and 3 which existed before the amendment and rejected\r\nthe review application and on appeal, the High Court also\r\nunfortunately dismissed the appeal in limine by one word.”</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>49. Thus the dictum as laid by this Court in Prakash Chander Manchanda\r\n(supra) is that it will be within the discretion of the Court to proceed under Rule\r\n3 even in the absence of evidence but such discretion is limited only in cases\r\nwhere a party which is opposing has led some evidence or has examined\r\nsubstantial part.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>50. Let us apply the aforesaid dictum as laid by this Court to the facts of\r\nthe present case. In the case on hand, after the first eviction petition was\r\ninstituted, the defendants therein filed their written statement denying the\r\nrelationship of landlord and tenant. After the written statement came on record,\r\nno further evidence was led by the plaintiffs. All that was on record was in the\r\nform of pleadings in the plaint. The Additional Rent Controller took the view\r\nthat after the written statement came on record, it was the duty of the plaintiffs\r\nto establish or prove the landlord tenant relationship and having failed to adduce\r\nany evidence, the suit was liable to be dismissed and accordingly was dismissed.\r\nThe High Court interpreted or rather construed the order of the Additional Rent\r\nController as one under Rule 3 of Order 17 and, therefore, took the view that\r\nthe findings as regards the relationship of landlord and tenant could be said to\r\nbe on merits.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>51. We are afraid, the High Court committed an error in taking the view\r\nthat the order passed by the Additional Rent Controller could be said to be one\r\npassed in exercise of powers under Rule 3 of Order 17 of the CPC.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">52. The power conferred on Courts under Rule 3 of Order 17 of the CPC\r\nto decide the suit on the merits for the default of a party is a drastic power which\r\nseriously restricts the remedy of the unsuccessful party for redress. It has to be\r\nused only sparingly in exceptional cases. Physical presence without\r\npreparedness to co-operate for anything connected with the progress of the case\r\nserves no useful purpose in deciding the suit on the merits and it is worse than\r\nabsence. In any contingency, the discretion is always with the Court to resort to\r\nRule 2 or 3 respectively or to grant an adjournment for deciding the suit in a\r\nregular way in spite of default. Rules 2 and 3 respectively are only enabling\r\nprovisions. In order to decide the suit on the merits, the mere existence of the\r\nconditions enumerated in Rule 3 alone will not be sufficient. There must be\r\nsome materials for a decision on the merits, even though the materials may not\r\nbe technically interpreted as evidence. Sometimes the decision in such cases </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">could be on the basis of pleadings, documents and burden of proof. Anyhow, it\r\nis appreciable for the Court to indicate by the judgment that the decision is for\r\ndefault or on the merits. The only alternative of the Court in cases covered by\r\nRule 3 or the explanation to Rule 2 is not to decide on the merits alone. If such\r\nan interpretation is given, it will amount to an unjustified preference to one who\r\npurposely absents than to one who presents but unable to proceed with the case.\r\n\'Appearance\' and \'presence\' have well recognised meanings. They imply\r\npresence in person or through pleader properly authorised for the purpose of\r\nconducting the case. Rule 3 comes into play only when presence is to proceed\r\nwith the case, but default is committed in any one of the three ways mentioned\r\nin Rule 2 or explanation to Rule 2 is extracted. Those are cases in which some\r\nmaterials are there for the Court to decide the case on the merits and not cases\r\nwhere decision could only be for default. That is clear from a combined reading\r\nof Rules 2 and 3 respectively and the explanation. In this case, none of these\r\nconditions were present and the decision was evidently for default. Rule 2 alone\r\nis attracted. (see : R. Ravindran v. M. Rajamanickam, 2006 SCC Online\r\nMad 169)</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>54. At the stage of hearing of the case, Order 17 of the CPC, applied.\r\nUnder that Order on a date of adjourned hearing, if a party was absent, the\r\nCourt either would act under Order 9 or otherwise as it thought fit; or if a\r\nparty was present but it did not produce evidence, it would proceed to decide\r\nthe suit forthwith without benefit of evidence. This last thing tantamounts\r\nthat the Court was to say whether the suit was or was not proved, either\r\nwholly or in part and to pass the decree accordingly.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>55. The moot question is whether the eviction petition was dismissed for\r\ndefault which dismissal would certainly bar a fresh suit if instituted on the\r\nsame cause of action. The words, which we have quoted above, certainly do\r\nnot mean dismissal either on merits or on default. It was argued before us\r\nthat the order should only be taken to mean what an order under Order 17\r\ncan possibly be and nothing else. We are not impressed by such submission.\r\nThe order did not purport to be one of dismissal for default or on merits and\r\nit cannot be taken to mean other than what it purported to be. It is in ordinary\r\nphraseology; not legal phraseology and it cannot be divested of its ordinary\r\nmeaning. Its ordinary meaning is that the proceeding was closed and the suit\r\nwould not count as a pending one. The later description would be redundant\r\nif the order was one of final disposal of the suit. The order did not purport to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be a final disposal of the suit. It merely stopped the proceedings. It did\r\nnothing more. This is not final decision of the suit within the meaning of\r\nOrder 9 Rule 8 and Order 17 Rule 3 resply of the CPC.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">56. In the result, the appeal succeeds and is hereby allowed. The\r\nimpugned judgement and decree is, therefore, set aside. Needless to add two\r\nthings. First, we have not expressed any opinion on rival contentions\r\nregarding the applicability or otherwise of the principle of res judicata or for\r\nthat matter any other contentious issue in the pending suit. Secondly, nothing\r\nstated in this judgment will prevent the concerned defendants from\r\nrequesting the Court to decide such an issue as a preliminary issue. Such an\r\napplication would obviously be decided on its merits about which also we\r\nexpressed no opinion. The suit is revived.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>57. There shall be no order as to costs.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>58. Pending application, if any, also stands disposed of.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6a2f5e35d86836a2785615c9a9e275de.jpeg', '5cacc25390d2657b42045d125d9f7f4b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-31', 1, '', '', '2023-03-30 14:18:42', '2023-03-31 08:06:53'),
(2855, 'DmP6WrUjR3MUHWO01yw2PFFbz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Filing of Caveat cannot curtail Court’s power to pass interim orders when party approaching court makes out an extraordinary circumstance in the presence of caveator. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/s. Kamalalaya Hilsoft (P) Ltd and others Vs M/s. Sree Venkateswara Developers.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 2385 of 2023 decided on 7 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The writ petitioners are defendants 1 to 3 in O.S.No.662/2023, on the file of XXXIX Additional City Civil Judge (CCH-40), Bengaluru. The respondent is the plaintiff and it, being a partnership firm, has claimed damages of Rs. 100,00,00,000/- (Rupees One hundred Crores) with interest at the rate of 12% per annum for slanderous and libelous defamatory statements made by the petitioners. The respondent also filed an application under Order XXXVIII Rule 5 CPC requesting the court to pass an order attaching the petitioners’ immovable property and bank account before judgment. The suit was filed on 27.01.2023, and on the same day the suit was posted before the court for consideration of I.A.No.1 filed under Order XXXVIII Rule 5 CPC. The petitioners had entered caveat, and in the presence of counsel for respondent and the petitioners, the trial court heard on I.A.1 and posted the case to 30.01.2023 for orders on the application. On 28.01.2023, the petitioners filed this writ petition seeking to quash the order dated 27.01.2023 produced at Annexure A. Since on 30.01.2023, the trial court passed an order directing the petitioners to show cause as to why they should not furnish security for the decree that may be passed in the suit, they have filed an application under Order VI Rule 17 CPC to insert additional prayer in the writ petition for quashing the order dated 30.01.2023, produced at Annexure A1. The application for amendment requires to be allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>There is another important aspect. Even to issue show cause notice or order conditional attachment, the court must arrive at a satisfaction that the defendant, in order to obstruct or delay the execution of any decree that may be passed against him is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court. The application must disclose these ingredients and the order of the court must disclose the satisfaction being arrived at based on materials provided by the plaintiff. If the order does not reflect the arrival of satisfaction, such an order can be questioned even before the court passes an order under Rule 6 of Order XXXVIII CPC.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>Apart from the above there is one more aspect. The respondent’s suit is for damages, it has claimed this relief having felt defamed by the petitioner. Their claim for damages is not based on any transaction between them. A question whether the respondent can seek attachment for before judgment in a suit of this type, arises.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>According to Order XXXVIII Rule 5 CPC, the defendant may be directed to provide security for a specified sum. The show cause notice also directs the defendant as to why he should not be required to furnish security for a specified sum. The term ‘sum specified’ means an ascertained sum, it may be a debt or a liability or an obligation on the defendant arising from a transaction between the plaintiff and the defendant. On the day when the suit is filed, if the debt or liability or obligation does not exist, the defendant cannot be asked to furnish security on the application filed under Order XXXVIII Rule 5 CPC. In a suit for damages, such a debt or liability or obligation does not arise until the court quantifies the damages. When Sri Thiruvengandam was questioned as to how an application under Order XXXVIII Rule 5 CPC can be filed in a suit for damages for defamation, his answer was that there is no bar as such in Rule 5 of Order XXXVIII, and he submitted further that according to Rule 1 of Order XXXVIII, an application can be made in any suit other than the suits mentioned in section 16 clauses (a) to (d) of Civil Procedure Code. Since the case on hand does not fall within the clauses of (a) to (d), application under Order XXXVIII Rule 5 CPC is very much maintainable. He also submitted that Rules 1 and 5 of Order XXXVIII CPC must be read together harmoniously.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>It is not possible to accept the line of argument of Sri Thiruvengadam. Rule 1 of Order XXXVIII CPC deals with arresting a defendant before judgment and Rule 5 deals with attaching a property before judgment. Though the circumstances when the arrest or attachment can be ordered before judgment are same, in my opinion both have different consequences and therefore they cannot be read together. However, it may be stated that when an attachment before judgment is sought, the plaintiff must be able to demonstrate before the court that on the day when the suit was filed, the defendant owed to him in a certain sum of money on account of a transaction between them. The sum must be specific and only if the court is satisfied prima facie that on account of a transaction between the plaintiff and the defendant, there is an obligation or liability on the part of the defendant and in order to avoid the liability or obligation, the defendant is about to dispose of whole or any part of his property or remove the whole or any part of the property from local limits of the jurisdictional court, the court can entertain application under Order XXXVIII Rule 5 CPC.   But in the case on hand the suit is for damages in connection with alleged defamation. The plaintiff may have claimed Rs.100 crores towards damages. Till the court decides whether plaintiff is entitled to damages or not, the claim made by the plaintiff remains a fiction; it is not a specified amount. Obligation or liability does not come into existence till the court passes the decree in favour of the plaintiff. Therefore in a suit of this type application under Order XXXVIII Rule 5 CPC cannot be filed at all. Aptly applicable to a circumstance like this, I may refer to two judgments.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In the case of M/s. Greenhills Exports (P) Limited and Others vs Coffee Board [ILR 2001 KAR 2950], a Division Bench of this court, after referring to many earlier judgments has culled out the following principles :</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(ii)<span style=\"white-space:pre\">	</span>In regard to a claim for damages (whether liquidated or unliquidated), there is no \'existing obligation\' to pay any amount. No pecuniary liability in regard to a claim for damages, arises till a Court adjudicates upon the claim for damages and holds that the defendant has committed breach and has incurred a liability to compensate the plaintiff for the loss and then assesses the quantum of such liability. An alleged default or breach gives rise only to a right to sue for damages and not to claim any \'debt\'. A claim for damages becomes a \'debt due\', not when the loss is quantified by the party complaining of breach, but when a competent Court holds on enquiry, that the person against whom the claim for damages is made, has committed breach and incurred a pecuniary liability towards the party complaining of breach and assesses the quantum of loss and awards damages. Damages are payable on account of a fiat of the Court and not on account of quantification by the person alleging breach. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(iii)<span style=\"white-space:pre\">	</span>When the contract does not stipulate the quantum of damages, the Court will assess and award compensation in accordance with the principles laid down in Section 73. Where the contract stipulates the quantum of damages or amounts to be recovered as damages, then the party complaining of breach<span style=\"white-space:pre\">	</span>can recover reasonable compensation, the stipulated amount being merely the outside limit.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(v)<span style=\"white-space:pre\">	</span>Even if the loss is ascertainable and the amount claimed as damages has been calculated and ascertained in the manner stipulated in the contract, by the party claiming damages, that will not convert a claim for damages into a claim for an ascertained sum due. Liability to pay damages arises only when a party is found to have committed breach. Ascertainment of the amount awardable as damages is only consequential.”<br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>The Hon’ble Supreme Court in Raman Tech. and Process Engineering Company and Another vs Solanki Traders [(2008) 2 SCC 302] has held as below:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“5.   The power under Order 38 Rule 5 CPC is drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilize the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out of court settlement, under threat of attachment.”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>In the light of the principles enunciated in the above rulings, it can be stated that Rs.100 Crores that the respondent has claimed cannot be called a specified sum which has arisen out of a transaction giving rise to existence of a debt or liability or obligation. In a suit of this type, an application under Order XXXVIII Rule 5 CPC cannot be filed; and if it is filed, it should be dismissed in limine. Therefore, writ petition is allowed, impugned orders at Annexures-A and A1 are set aside.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd227cf13a0c0349663e5f9f06c6547f2.JPG', 'a1633e46b1d87e74cc5685dc43b022e2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-31', 1, '', '', '2023-03-30 14:30:06', '2023-03-31 03:25:31');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2856, 'tdFoIhXBHiP8fpdWmwXZASPot', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' The amendment of 2022 to the KIADB Act incorporating the provisions of land acquisition 2013 Act is prospective in operation, notwithstanding the word ‘deemed’ occurring therein. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Narayanappa and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 40748 of 2012 decided on 29 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petitioners claiming to be the owners of the lands in question are knocking at the doors of writ court for laying a challenge to the acquisition proceedings of the year 2002 done under the provisions of the KIAD Act, 1966. They have also sought for a direction for the dropping of the subject lands from the acquisition process.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>Having heard the learned advocates appearing for the parties and having perused the petition papers, this court declines challenge to the acquisition, and grants a limited indulgence in the matter as under and for the following reasons: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a)<span style=\"white-space:pre\">	</span>The first contention urged on behalf of the petitioners that the private respondent Partnership is legally impermissible since incorporated companies cannot be partners and therefore, the acquisition initiated at their instance and for their benefit is unsustainable, is no longer res integra. A Division Bench of this Court in R.P. No. 363/2015 in W.A. No. 333/2013 between C. PRAKASH vs. STATE & OTHERS disposed off on 06.04.2018 having considered the same contention advanced by the same Sr. Advocate has negatived the same. Therefore, the Division Bench decision of the Calcutta High Court in GANGA METAL REFINING COMPANY vs. COMMISSIONER OF INCOME TAX AIR 1967 CAL 429, arguably holding a view in variance, would not come to aid of the petitioners. Learned Panel Counsel for the KIADB is more than justified in contending that the role of the partnership firm in question comes into play only after the State acquired the land and handed it to his client, who may eventually decide to make allotment of the land or part thereof to the aspirants in accordance with the extant policy.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (b)<span style=\"white-space: pre;\">	</span>The second contention of learned Sr. Advocate appearing for the petitioners that his clients have the constitutional protection under second Proviso to Article 31A and therefore, their property could not have been acquired under the 1966 Act, does not merit a deeper examination in the absence of material particulars in the pleadings about the nature of the subject properties and the factual conditions that warrant the invocation of this provision. The 2nd Proviso to Article 31A added by the 17th Amendment 1964 is in fact a Proviso to sub-clause (a) of Clause (1) since its application is confined to a law for ‘the acquisition of an estate’ and that it is not concerned with any of the other sub-clause of Clause (1)<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In D.D.Basu’s ‘Shorter Constitution of India’, 15th Edition, Volume I, at pages 525 – 26 it is stated: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“3. Under the 2nd Proviso – the person whose land is ‘acquired’ is entitled to ‘compensation’ being not less than the market value of the land, provided (a) such land is comprised in an estate which is being acquired; (b)<span style=\"white-space:pre\">	</span>it is under his personal   cultivation; and (c) the quantum of land so held by him is within the ceiling limit of holding prescribed by the competent Legislature. Mere restriction on the incidence pf the lease or ownership is not acquisition within the meaning of Article 31A. Hence, question of compensation does not arise…</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> 4. … The underlying idea of this Proviso is that a person who is cultivating land within the ceiling limit personally, which is the source of his livelihood, should not be deprived of that land under any law protected by Article 31A unless compensation at the market rate is given, and this condition must be complied with if the State has, in substance, acquired all the rights in the land for its own purposes, even if the title remains with the owner. But the Proviso is not attracted unless the beneficiary of such acquisition is the State”.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(c)<span style=\"white-space:pre\">	</span>It hardly needs to be stated that the acquisition under the 1966 Act is not for the benefit of the State as such; after acquisition, the lands are handed to the KIADB which in turn will allot to others including the private entities “for the purpose of promoting establishment and orderly development of industries”, to borrow the Preambular terminology of the 1966 Act. Added, there is no challenge to the provisions of the Act that empower acquisition of the land and payment of compensation.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(d)<span style=\"white-space:pre\">	</span>The third contention that the enormous delay<span style=\"white-space:pre\">	</span>between the Preliminary<span style=\"white-space:pre\">	</span>Notification dated 25.11.2002 issued under Section 28(1) and the Final Notification dated 11.05.2004 issued under Section 28(4) of the 1966 Act, renders the acquisition void more particularly when no award has been passed and as a consequence, no compensation has been paid, is difficult to countenance. The scheme of acquisition envisaged under Section 28 of the 1966 Act is much in variance with that of the one contemplated under Sections 4 to 12 of the erstwhile Land Acquisition Act, 1894; in the former, the land will vest in the State once the Final Notification is issued regardless of passing of the award and payment of compensation, unlike under the 1894 Act vide Division Bench decision in W.P No. 17600 between NANDI INFRASTRUCTURE CORRIDOR LTD. vs. STATE OF KARNATAKA, disposed off on 15.06.2011.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">(e)<span style=\"white-space:pre\">	</span>Added to the above, no period is prescribed by the Legislature unlike under the 1894 Act, for issuance of the Final Notification after the Preliminary Notification is published.  However, this does not mean that in no case the acquisition can be quashed regardless of longevity of the delay. In order to press into service delay as a ground for invalidation, the Petitioner has to aver the lapse/negligence on the part of the officials concerned. However, that is not pleaded in the Petition. Lastly, the learned counsel for the KIADB is right in contending that in some what connected cases i.e., W.P.No.17819/2005, W.P.No.40661/2004, W.P.No.7029/2007, W.P.No.8756/2011, etc., there was stay of acquisition proceedings till 19th November, 2012 i.e., the date of the judgment whereby they were disposed off. There was challenge to denotification of certain lands in W.P.No.22888/2010 which is mentioned in the very same judgment. Therefore, the contention of delay in accomplishing the acquisition by passing the award and making the payment of compensation, has to fail. The above apart, petitioner has obtained an interim order having the effect of interdicting the acquisition proceedings all these years. Thus, no interest which otherwise was payable, shall be paid during the stay period, whether compensation is determined under the unamended or amended Section 30 of the 1966 Act, and that applies even if post disposal of the subject Writ Appeals compensation needs to be re-determined under the Amended provisions of Section 30 of the 1966 Act.<br></font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(g)<span style=\"white-space: pre;\">	</span>The 2022 Amendment to the 1966 Act incorporates the provisions of 2013 Act cannot be much disputed. However, the said Amendment which employs the expression ‘shall be’ makes it prospective in operation, notwithstanding the word ‘deemed’ occurring therein. If the Legislature intended, a retrospective operation, the terminology of the Section would have been a bit different. Therefore, the compensation has to be determined under Section 30 of the 1966 Act which incorporated the provisions of the 1894 Act, even when the said Act has been repealed by the 2013 Act w.e.f. 01.01.2014. This having been said, a clarification needs to be made that in the event, the challenge to the Coordinate Bench judgments fails, then, petitioners too would be entitled to re-determination of the compensation under the 2013 Act. Till that happens, the SLAO of the KIADB has to frame the award under the unamended provisions Section 30 of the 1966 Act and pay/deposit the compensation within an outer limit of three months, if the Petitioners establish their credentials as per the standard operating procedure.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i><br></i>In the above circumstances and with the above observations, this Petition is disposed off, costs having been made easy.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b3aec577c095db108d741db5217d3e1c.JPG', '606006766019414bbc655cdad8c9931d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-03', 1, '', '', '2023-03-30 14:56:43', '2023-04-03 03:30:07'),
(2857, 'Lyn2r2SOedMTsuLZ3sHT0vwux', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Decree for specific performance of sale agreement against allottee of a site can be enforced against the allotter BDA even when the BDA was not a party to the suit. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Joseph Raj Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 8204 of 2019 decided on 17 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petitioner is knocking at the doors of Writ Court essentially for a direction to the Respondent-BDA to execute & register a conveyance in terms of specific Performance decree in his suit in O.S.No.6825/2011 decreed on 10.11.2014 against his vendor who happened to be the allottee of subject site at the hands of the BDA. Learned counsel for the Petitioner vehemently argues that the Respondents are not justified in not taking cognizance of the said decree and acting in accordance with the same. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2.<span style=\"white-space: pre;\">	</span>After service of notice, the State has entered appearance through the learned AGA; the BDA & BBMP have entered appearance through their learned Panel Advocates. The BDA has filed a Statement of Objection on 12.7.2022 resisting the Writ Petition. Its Sr. Panel Counsel makes vehement submission for the dismissal of Petition contending that his client was not a party to the decree in question; the said decree was obtained ex parte qua the allottee of site in question; no explanation is offered for not arraying the BDA as a defendant; no Possession Certificate was ever issued to the allottee, though sital cost was remitted by him to the BDA in terms of Allotment Letter.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Having heard the learned counsel for the parties and having perused the Petition Papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> (i)<span style=\"white-space: pre;\">	</span>The site in question was allotted to Petitioner’s vendor after receiving the prescribed price and that the said site till date has been kept unallotted to anyone else are fairly admitted from the side of BDA, consistent with the records produced. Allotment of site is done not in a private negotiation but in accordance with the extant Allotment Rules promulgated under the erstwhile City of Bangalore Improvement Act, 1945 which has since been repealed by the Bangalore Development Authority Act, 1976, making the BDA a legal successor of City Improvement Trust Board. The Allotment Letter coupled with the payment of full price creates an equitable interest in the subject site in favour of allottee on the basis of which Petitioner has secured a Specific Performance decree in the subject suit, against him.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space: pre;\">	</span>The above being the position, the decree of the Court has to be recognized and acted upon by the statutory authorities like the BDA, regardless of its being a party thereto or not, consistent with the ‘doctrine of feeding the grant by estoppel’ enacted in section 43 of the Transfer of Property Act, 1882 especially when no amount was due from the side of allottee towards the sital value nor any formal compliance was expected of him. Added, the subject site has been kept un-allotted to anyone else for decades and no third party rights have been created, either. Had BDA too been arrayed as a defendant, it would have been ideal for the adjudication of suit, is beside the point. If the allottee was entitled to have the conveyance in terms of allotment, his vendee standing in his shoes by virtue of agreement followed by Court decree, will have those rights, their jural correlative i.e., the duty resting on the shoulders of the then CITB and now BDA being its successor.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(vi)<span style=\"white-space:pre\">	</span>Although, Article 261 employs the expression “proceedings of the Union and of every State” as a qualification to the norm enacted therein, its text & context support the view that the statutory authorities, in the absence of justification to the contrary, as of necessity and consistent with rule of law, have to take inter alia cognizance of judicial proceedings; this constitutional obligation becomes more imperative when such proceedings have culminated into effective decrees & orders. If fraud, fabrication & duplicity are apparent to the naked eye, such cases stand on a different footing in view of decision of Apex Court in S.P.CHENGALVARAYA NAIDU vs. JAGANNATH, hardly needs to be stated. The contention that no Possession Certificate was issued to the allottee and therefore, the one produced appears to be fake, does not come to the rescue of the Respondents, when allotment of site and receipt of the prescribed price therefor have been specifically admitted by the BDA.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(vii)<span style=\"white-space:pre\">	</span>By virtue of agreement followed by the Court decree, the Petitioner fills the character of original allottee and therefore, becomes entitled to have the conveyance at the hands of the allotter i.e., BDA in respect of the subject site. The contention that the Respondent-BDA was a proper party if not a necessary party to the suit, is difficult to sustain in the light of decision of the Apex Court in RAZIA BEGUM vs. SAHEBZADI ANWAR BEGUM4, which broadly discusses as to who is a proper and who a necessary party. For the adjudication of the suit, the only necessary party was the allottee of the site and none others. There is a lot of scope for the argument, had the BDA been arrayed as Defendant No.2 to the suit, it could have sought for its deletion from the Cause Title.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">(viii)<span style=\"white-space:pre\">	</span>The last contention of learned Panel counsel appearing for the BDA that the subject suit was decreed ex parte qua the allottee of the site in question and therefore, Court decree cannot be taken cognizance of, is untenable. So far as execution & enforceability of Court </font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">decrees are concerned, law does not differentiate between decrees that are obtained after full-fledged trial and those secured placing the defendants ex parte, subject to all just exceptions into which argued case of the Petitioner does not fit. Justice of the case even otherwise warrants that the BDA should do all endeavors to ensure fruits of the decree reach palms of the decree holder; an argument to the contrary cannot be sustained without undermining the sanctity of judicial process and that in turn would affect the rule of law in the realm. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b>In the above circumstances, this Writ Petition succeeds; a Writ of Mandamus issues directing the Respondent-BDA to fructify the allotment of subject site in favour of the Petitioner-Decree Holder by executing & registering a regular conveyance within a period of eight weeks, failing which, the Respondent-BDA shall pay to the Petitioner a sum of Rs.500/- per day of delay brooked, in addition to risking the action for the contempt of this Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Now, no costs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ac786ab819606950f6abf001255218ad.JPG', '834a46e95b5fba780b121b16d9e16406.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-31', 1, '', '', '2023-03-30 15:15:58', '2023-03-31 07:00:48'),
(2858, 'izQEQFyxlGSr78NGp1wF1J8EA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Plea of alternative remedy is a self-imposed restriction by the superior Courts and is never an absolute bar unless barred by the statute. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Abhishek Singh Vs Huhtamaki PPL Ltd and another.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 2241 of 2023 decided on 28 March 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice B.R. Gavai and Justice Vikram Nath.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. The appellant, a suspended Director of the Corporate Debtor : Manpasand Beverages Ltd. (respondent 2), has filed this appeal assailing the correctness of the order dated 13.04.2021 passed by the National Company Law <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Tribunal, Ahmedabad Bench at Ahmedabad in I.A. No.196 of 2021 arising out of C.P.(I.B.) No.503 of 2019 rejecting the application of the appellant under section 12A of Insolvency and Bankruptcy Code, 2016 for withdrawal of the Corporate Insolvency Resolution Process</span><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. CD is in the business of manufacturing and distribution of fruit beverages. It has approximately 700 employees and a turnover of Rs.984.96 Crores in the Financial Year 2018-2019. The Operational Creditor5 Huhtamaki PPL Ltd. (respondent No.1) used to supply packaging material to the CD.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">23. The facts as stated above are not disputed. The application had been filed prior to the constitution of the CoC. The settlement had been arrived at within two days of the admission order. The payment as per the settlement had been made within the next five days i.e. in a weeks’ time from the date of admission. The application for withdrawal was filed on the 10th day. The NCLT ought to have immediately taken the decision on the application. Once the parties had settled the dispute even before the CoC had been constituted, the application ought to have been allowed then and there rather than await the other creditors to jump into the fray and allow the IRP to proceed further.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">33. Now coming to the legality and the correctness of the impugned order passed by the NCLT in the present appeal. Majority of the findings recorded in the impugned orders are already covered above. An important issue remains to be considered is the finding recorded by the NCLT that Regulation 30A of IBBI Regulations was not binding upon it and could not be of any help to the CD or its suspended Directors. In this respect, we may first refer to the judgment of this Court in the case of Swiss Ribbons (supra). Section 12A of IBC permitted withdrawal of applications admitted under sections 7, 9 or 10 of IBC. But the said provision envisaged a situation where the withdrawal application would be filed after the CoC has been constituted, as it requires approval of 90 per cent voting shares of CoC. There was no provision </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which would deal with withdrawal of proceedings before constitution of CoC. Even Regulation 30A, as it existed earlier, did not contemplate of consideration of an application for withdrawal filed before constitution of CoC. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">This issue was flagged by this Court in the case of Swiss Ribbons (supra) in paragraph 82 thereof which is reproduced hereunder:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“82. It is clear that once the Code gets triggered by admission of a creditor’s petition under Sections 7 to 9, the proceeding that is before the adjudicating authority, being a collective proceeding, is a proceeding in rem. Being a proceeding in rem, it is necessary that the body which is to oversee the resolution process must be consulted before any individual corporate debtor is allowed to settle its claim. A question arises as to what is to happen before a Committee of Creditors is constituted (as per the timelines that are specified, a Committee of Creditors can be appointed at any time within 30 days from the date of appointment of the interim resolution professional). We make it clear that at any stage where the Committee of Creditors is not yet constituted, a party can approach NCLT directly, which Tribunal may, in exercise of its inherent powers under Rule 11 of NCLT Rules, 2016, allow or disallow an application for withdrawal or settlement. This will be decided after hearing all the parties concerned and considering all relevant factors on the facts of each case.”</span><span style=\"font-size: 12pt;\"> </span></span></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">This Court had required the NCLT to invoke its powers under Rule 11 of the NCLT Rules.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">34. It was after the observations made by this Court in the case of Swiss Ribbons (supra), as noted above and also considering the aspect that large number of orders were being passed by this Court invoking Article 142 of the Constitution that IBBI Regulations which were framed by the Insolvency and Bankruptcy Board of India21 exercising powers conferred under sections 5, 7, 9, 14, 15, 17, 18, 21, 24, 25, 29, 30, 196, 208 read with section 240 substituted section 30A vide notification dated 25.07.2019. The Board was conferred with powers to frame regulations for various purposes referred to in section 240 of IBC and the other allied sections. These regulations may be subordinate in character but would still carry a statutory flavor and would be binding on the NCLT. The NCLT committed an error in holding that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Regulation 30A would have no binding effect. This would amount to defeating the very purpose of substituting Regulation 30A in IBBI Regulations on 25.07.2019 after the judgment of Swiss Ribbons(supra) which was dated 25.01.2019.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">35. Section 12A of IBC permits withdrawal of applications admitted under sections 7, 9 and 10 of IBC. It permits withdrawal of such applications with approval of 90 percent voting share of CoC in such manner as may be specified. The role of CoC and 90 percent of its voting share approving the said withdrawal would come into play only when CoC has been constituted. Section 12A did not specifically mention withdrawal of such applications where CoC had not been constituted but at the same time it does not debar entertaining applications for withdrawal even before constitution of CoC. Therefore, the application under section 12A for withdrawal cannot be said to be kept pending for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">constitution of CoC, even where such application was filed before constitution of CoC. The IBBI which had the power to frame Regulations wherever required and in particular section 240 of IBC for the subjects covered therein had accordingly substituted Regulation 30A dealing with the procedure for disposal of application for withdrawal filed under section 12A of IBC. The substituted Regulation 30A of IBC as it stands today clearly provided for withdrawal applications being entertained before constitution of CoC. It does not in any way conflicts or is in violation of section 12A of IBC. There is no inconsistency in the two provisions. It only furthers the cause introduced vide section 12A of IBC. Thus, NCLT fell in error in taking a contrary view.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">40. Both the parties have relied upon paragraph 82 of the judgment in the case of Swiss Ribbons (supra). According to the appellant, the NCLT ought to have exercised its inherent powers under Rule 11 of the NCLT Rules whereas for the intervenors it is submitted that this Court had observed that power under Rule 11 would be exercised after hearing all concerned parties. It may <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be noted that at the time when the application for withdrawal of the proceedings was filed the CoC was not constituted as such there could not have been any other concerned parties except the OC, CD and IRP. It was only because of the delay caused by the NCLT in disposing of the applications under section 12A of IBC and Regulation 30A of IBBI Regulations that large number of creditors filed their claims. The inherent powers are to be invoked in order to meet the ends of justice which, in our opinion, the NCLT failed to invoke.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">41. Regulation 30A of IBBI Regulations provide a complete mechanism for dealing with the applications filed under such provision. The issue raised by the IRP regarding its claim for expenses is well taken care of under the said provision. Various safeguards have been provided in Regulation 30A of IBBI Regulations to be fulfilled by the OC which apparently have been fulfilled as there is no complaint in that regard either by the IRP </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">nor it is apparent from the impugned order of the NCLT. Thus, the objection raised by the IRP does not merit any consideration in this appeal.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">42. For all the reasons recorded above, the impugned order of the NCLT cannot be sustained. The application filed under Regulation 30A of IBBI Regulations deserves to be allowed.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">43. Accordingly, the appeal is allowed and the impugned order of NCLT is set aside. Further, the Application No. 196 of 2021 also deserves to be allowed along with the application under Regulation 30A of IBBI Regulations. The Application under section 9 of IBC filed by the OCs shall stand withdrawn. It is further provided that any claim for expenses incurred may be dealt with by the NCLT in accordance with law.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">45. Pending applications, if any, are disposed of.</span></p>', '4e3b4a5cf41a86dcbb7ef28876c98442.jpeg', '3df153f5bfbcb490d6a7bfa63a64d6e8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-01', 1, '', '', '2023-03-31 13:12:42', '2023-04-01 09:46:08');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2859, 'eKzc6oWv0mjYWQSpSnP8HzGT7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Caveat cannot curtail Court’s power to pass interim orders when party approaching court makes out an extraordinary circumstance in the presence of caveator. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">M/s. Kamalalaya Hilsoft (P) Ltd and others Vs M/s. Sree Venkateswara Developers.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 2385 of 2023 decided on 7 March 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Sreenivas Harish Kumar.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">The writ petitioners are defendants 1 to 3 in O.S.No.662/2023, on the file of XXXIX Additional City Civil Judge (CCH-40), Bengaluru. The respondent is the plaintiff and it, being a partnership firm, has claimed damages of Rs. 100,00,00,000/- (Rupees One hundred Crores) with interest at the rate of 12% per annum for slanderous and libelous defamatory statements made by the petitioners. The respondent also filed an application under Order XXXVIII Rule 5 CPC requesting the court to pass an order attaching the petitioners’ immovable property and bank account before judgment. The suit was filed on 27.01.2023, and on the same day the suit was posted before the court for consideration of I.A.No.1 filed under Order XXXVIII Rule 5 CPC. The petitioners had entered caveat, and in the presence of counsel for respondent and the petitioners, the trial court heard on I.A.1 and posted the case to 30.01.2023 for orders on the application. On 28.01.2023, the petitioners filed this writ petition seeking to quash the order dated 27.01.2023 produced at Annexure A. Since on 30.01.2023, the trial court passed an order directing the petitioners to show cause as to why they should not furnish security for the decree that may be passed in the suit, they have filed an application under Order VI Rule 17 CPC to insert additional prayer in the writ petition for quashing the order dated 30.01.2023, produced at Annexure A1. The application for amendment requires to be allowed.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">7.<span style=\"white-space: pre;\">	</span>There is another important aspect. Even to issue show cause notice or order conditional attachment, the court must arrive at a satisfaction that the defendant, in order to obstruct or delay the execution of any decree that may be passed against him is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court. The application must disclose these ingredients and the order of the court must disclose the satisfaction being arrived at based on materials provided by the plaintiff. If the order does not reflect the arrival of satisfaction, such an order can be questioned even before the court passes an order under Rule 6 of Order XXXVIII CPC.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">9.<span style=\"white-space: pre;\">	</span>Apart from the above there is one more aspect. The respondent’s suit is for damages, it has claimed this relief having felt defamed by the petitioner. Their claim for damages is not based on any transaction between them. A question whether the respondent can seek attachment for before judgment in a suit of this type, arises.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">10.<span style=\"white-space: pre;\">	</span>According to Order XXXVIII Rule 5 CPC, the defendant may be directed to provide security for a specified sum. The show cause notice also directs the defendant as to why he should not be required to furnish security for a specified sum. The term ‘sum specified’ means an ascertained sum, it may be a debt or a liability or an obligation on the defendant arising from a transaction between the plaintiff and the defendant. On the day when the suit is filed, if the debt or liability or obligation does not exist, the defendant cannot be asked to furnish security on the application filed under Order XXXVIII Rule 5 CPC. In a suit for damages, such a debt or liability or obligation does not arise until the court quantifies the damages. When Sri Thiruvengandam was questioned as to how an application under Order XXXVIII Rule 5 CPC can be filed in a suit for damages for defamation, his answer was that there is no bar as such in Rule 5 of Order XXXVIII, and he submitted further that according to Rule 1 of Order XXXVIII, an application can be made in any suit other than the suits mentioned in section 16 clauses (a) to (d) of Civil Procedure Code. Since the case on hand does not fall within the clauses of (a) to (d), application under Order XXXVIII Rule 5 CPC is very much maintainable. He also submitted that Rules 1 and 5 of Order XXXVIII CPC must be read together harmoniously.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">11.<span style=\"white-space: pre;\">	</span>It is not possible to accept the line of argument of Sri Thiruvengadam. Rule 1 of Order XXXVIII CPC deals with arresting a defendant before judgment and Rule 5 deals with attaching a property before judgment. Though the circumstances when the arrest or attachment can be ordered before judgment are same, in my opinion both have different consequences and therefore they cannot be read together. However, it may be stated that when an attachment before judgment is sought, the plaintiff must be able to demonstrate before the court that on the day when the suit was filed, the defendant owed to him in a certain sum of money on account of a transaction between them. The sum must be specific and only if the court is satisfied prima facie that on account of a transaction between the plaintiff and the defendant, there is an obligation or liability on the part of the defendant and in order to avoid the liability or obligation, the defendant is about to dispose of whole or any part of his property or remove the whole or any part of the property from local limits of the jurisdictional court, the court can entertain application under Order XXXVIII Rule 5 CPC.&nbsp; &nbsp;But in the case on hand the suit is for damages in connection with alleged defamation. The plaintiff may have claimed Rs.100 crores towards damages. Till the court decides whether plaintiff is entitled to damages or not, the claim made by the plaintiff remains a fiction; it is not a specified amount. Obligation or liability does not come into existence till the court passes the decree in favour of the plaintiff. Therefore in a suit of this type application under Order XXXVIII Rule 5 CPC cannot be filed at all. Aptly applicable to a circumstance like this, I may refer to two judgments.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">In the case of M/s. Greenhills Exports (P) Limited and Others vs Coffee Board [ILR 2001 KAR 2950], a Division Bench of this court, after referring to many earlier judgments has culled out the following principles :</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\">(ii)<span style=\"white-space: pre;\">	</span>In regard to a claim for damages (whether liquidated or unliquidated), there is no \'existing obligation\' to pay any amount. No pecuniary liability in regard to a claim for damages, arises till a Court adjudicates upon the claim for damages and holds that the defendant has committed breach and has incurred a liability to compensate the plaintiff for the loss and then assesses the quantum of such liability. An alleged default or breach gives rise only to a right to sue for damages and not to claim any \'debt\'. A claim for damages becomes a \'debt due\', not when the loss is quantified by the party complaining of breach, but when a competent Court holds on enquiry, that the person against whom the claim for damages is made, has committed breach and incurred a pecuniary liability towards the party complaining of breach and assesses the quantum of loss and awards damages. Damages are payable on account of a fiat of the Court and not on account of quantification by the person alleging breach.</span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\"><br></span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\">(iii)<span style=\"white-space: pre;\">	</span>When the contract does not stipulate the quantum of damages, the Court will assess and award compensation in accordance with the principles laid down in Section 73. Where the contract stipulates the quantum of damages or amounts to be recovered as damages, then the party complaining of breach<span style=\"white-space: pre;\">	</span>can recover reasonable compensation, the stipulated amount being merely the outside limit.</span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\"><br></span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\">(v)<span style=\"white-space: pre;\">	</span>Even if the loss is ascertainable and the amount claimed as damages has been calculated and ascertained in the manner stipulated in the contract, by the party claiming damages, that will not convert a claim for damages into a claim for an ascertained sum due. Liability to pay damages arises only when a party is found to have committed breach. Ascertainment of the amount awardable as damages is only consequential.”<br></span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">12.<span style=\"white-space: pre;\">	</span>The Hon’ble Supreme Court in Raman Tech. and Process Engineering Company and Another vs Solanki Traders [(2008) 2 SCC 302] has held as below:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\">“5.&nbsp; &nbsp;The power under Order 38 Rule 5 CPC is drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilize the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out of court settlement, under threat of attachment.”</span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\"><br></span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">13.<span style=\"white-space: pre;\">	</span>In the light of the principles enunciated in the above rulings, it can be stated that Rs.100 Crores that the respondent has claimed cannot be called a specified sum which has arisen out of a transaction giving rise to existence of a debt or liability or obligation. In a suit of this type, an application under Order XXXVIII Rule 5 CPC cannot be filed; and if it is filed, it should be dismissed in limine. Therefore, writ petition is allowed, impugned orders at Annexures-A and A1 are set aside.</span></font></p>', '4fd2ad10f4ba2a7987de3056629a1937.JPG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-03-31', 1, '', '', '2023-03-31 13:18:03', '2023-03-31 11:43:45'),
(2860, '3sJNciO9SoWGCSgN8d98OUwYM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When a judgment is stayed, ordinarily, it is not prudent to press them into service as a binding rule, since its precedential force is in suspended animation. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Narayanappa and others Vs The State of Karnataka and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 40748 of 2012 decided on 29 March 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Krishna S Dixit.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">Petitioners claiming to be the owners of the lands in question are knocking at the doors of writ court for laying a challenge to the acquisition proceedings of the year 2002 done under the provisions of the KIAD Act, 1966. They have also sought for a direction for the dropping of the subject lands from the acquisition process.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">4.<span style=\"white-space: pre;\">	</span>Having heard the learned advocates appearing for the parties and having perused the petition papers, this court declines challenge to the acquisition, and grants a limited indulgence in the matter as under and for the following reasons:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(a)<span style=\"white-space: pre;\">	</span>The first contention urged on behalf of the petitioners that the private respondent Partnership is legally impermissible since incorporated companies cannot be partners and therefore, the acquisition initiated at their instance and for their benefit is unsustainable, is no longer res integra. A Division Bench of this Court in R.P. No. 363/2015 in W.A. No. 333/2013 between C. PRAKASH vs. STATE & OTHERS disposed off on 06.04.2018 having considered the same contention advanced by the same Sr. Advocate has negatived the same. Therefore, the Division Bench decision of the Calcutta High Court in GANGA METAL REFINING COMPANY vs. COMMISSIONER OF INCOME TAX AIR 1967 CAL 429, arguably holding a view in variance, would not come to aid of the petitioners. Learned Panel Counsel for the KIADB is more than justified in contending that the role of the partnership firm in question comes into play only after the State acquired the land and handed it to his client, who may eventually decide to make allotment of the land or part thereof to the aspirants in accordance with the extant policy.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(b)<span style=\"white-space: pre;\">	</span>The second contention of learned Sr. Advocate appearing for the petitioners that his clients have the constitutional protection under second Proviso to Article 31A and therefore, their property could not have been acquired under the 1966 Act, does not merit a deeper examination in the absence of material particulars in the pleadings about the nature of the subject properties and the factual conditions that warrant the invocation of this provision. The 2nd Proviso to Article 31A added by the 17th Amendment 1964 is in fact a Proviso to sub-clause (a) of Clause (1) since its application is confined to a law for ‘the acquisition of an estate’ and that it is not concerned with any of the other sub-clause of Clause (1)<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">In D.D.Basu’s ‘Shorter Constitution of India’, 15th Edition, Volume I, at pages 525 – 26 it is stated:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\">“3. Under the 2nd Proviso – the person whose land is ‘acquired’ is entitled to ‘compensation’ being not less than the market value of the land, provided (a) such land is comprised in an estate which is being acquired; (b)<span style=\"white-space: pre;\">	</span>it is under his personal   cultivation; and (c) the quantum of land so held by him is within the ceiling limit of holding prescribed by the competent Legislature. Mere restriction on the incidence pf the lease or ownership is not acquisition within the meaning of Article 31A. Hence, question of compensation does not arise…</span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\"><br></span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\">4. … The underlying idea of this Proviso is that a person who is cultivating land within the ceiling limit personally, which is the source of his livelihood, should not be deprived of that land under any law protected by Article 31A unless compensation at the market rate is given, and this condition must be complied with if the State has, in substance, acquired all the rights in the land for its own purposes, even if the title remains with the owner. But the Proviso is not attracted unless the beneficiary of such acquisition is the State”.</span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\"><br></span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(c)<span style=\"white-space: pre;\">	</span>It hardly needs to be stated that the acquisition under the 1966 Act is not for the benefit of the State as such; after acquisition, the lands are handed to the KIADB which in turn will allot to others including the private entities “for the purpose of promoting establishment and orderly development of industries”, to borrow the Preambular terminology of the 1966 Act. Added, there is no challenge to the provisions of the Act that empower acquisition of the land and payment of compensation.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(d)<span style=\"white-space: pre;\">	</span>The third contention that the enormous delay<span style=\"white-space: pre;\">	</span>between the Preliminary<span style=\"white-space: pre;\">	</span>Notification dated 25.11.2002 issued under Section 28(1) and the Final Notification dated 11.05.2004 issued under Section 28(4) of the 1966 Act, renders the acquisition void more particularly when no award has been passed and as a consequence, no compensation has been paid, is difficult to countenance. The scheme of acquisition envisaged under Section 28 of the 1966 Act is much in variance with that of the one contemplated under Sections 4 to 12 of the erstwhile Land Acquisition Act, 1894; in the former, the land will vest in the State once the Final Notification is issued regardless of passing of the award and payment of compensation, unlike under the 1894 Act vide Division Bench decision in W.P No. 17600 between NANDI INFRASTRUCTURE CORRIDOR LTD. vs. STATE OF KARNATAKA, disposed off on 15.06.2011.<br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">(e)<span style=\"white-space: pre;\">	</span>Added to the above, no period is prescribed by the Legislature unlike under the 1894 Act, for issuance of the Final Notification after the Preliminary Notification is published.  However, this does not mean that in no case the acquisition can be quashed regardless of longevity of the delay. In order to press into service delay as a ground for invalidation, the Petitioner has to aver the lapse/negligence on the part of the officials concerned. However, that is not pleaded in the Petition. Lastly, the learned counsel for the KIADB is right in contending that in some what connected cases i.e., W.P.No.17819/2005, W.P.No.40661/2004, W.P.No.7029/2007, W.P.No.8756/2011, etc., there was stay of acquisition proceedings till 19th November, 2012 i.e., the date of the judgment whereby they were disposed off. There was challenge to denotification of certain lands in W.P.No.22888/2010 which is mentioned in the very same judgment. Therefore, the contention of delay in accomplishing the acquisition by passing the award and making the payment of compensation, has to fail. The above apart, petitioner has obtained an interim order having the effect of interdicting the acquisition proceedings all these years. Thus, no interest which otherwise was payable, shall be paid during the stay period, whether compensation is determined under the unamended or amended Section 30 of the 1966 Act, and that applies even if post disposal of the subject Writ Appeals compensation needs to be re-determined under the Amended provisions of Section 30 of the 1966 Act.<br></font><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(g)<span style=\"white-space: pre;\">	</span>The 2022 Amendment to the 1966 Act incorporates the provisions of 2013 Act cannot be much disputed. However, the said Amendment which employs the expression ‘shall be’ makes it prospective in operation, notwithstanding the word ‘deemed’ occurring therein. If the Legislature intended, a retrospective operation, the terminology of the Section would have been a bit different. Therefore, the compensation has to be determined under Section 30 of the 1966 Act which incorporated the provisions of the 1894 Act, even when the said Act has been repealed by the 2013 Act w.e.f. 01.01.2014. This having been said, a clarification needs to be made that in the event, the challenge to the Coordinate Bench judgments fails, then, petitioners too would be entitled to re-determination of the compensation under the 2013 Act. Till that happens, the SLAO of the KIADB has to frame the award under the unamended provisions Section 30 of the 1966 Act and pay/deposit the compensation within an outer limit of three months, if the Petitioners establish their credentials as per the standard operating procedure.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><i><br></i>In the above circumstances and with the above observations, this Petition is disposed off, costs having been made easy.</span></font></span></p>', '8ceeacbdae9fa89f0cee50131dabea66.JPG', '02ae4dc983289d402c07af048d9273c1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-05', 1, '', '', '2023-03-31 13:23:04', '2023-04-05 09:09:11'),
(2861, 'LEQne3UAbKWOoSCQE43DVLaz0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court invokes the principle of “Full faith and credit clause” under Article 261 to bind statutory body BDA to comply with intra-party decree even though BDA was not party to the suit.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Joseph Raj Vs State of Karnataka and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 8204 of 2019 decided on 17 March 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Krishna S Dixit.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">Petitioner is knocking at the doors of Writ Court essentially for a direction to the Respondent-BDA to execute & register a conveyance in terms of specific Performance decree in his suit in O.S.No.6825/2011 decreed on 10.11.2014 against his vendor who happened to be the allottee of subject site at the hands of the BDA. Learned counsel for the Petitioner vehemently argues that the Respondents are not justified in not taking cognizance of the said decree and acting in accordance with the same.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">2.<span style=\"white-space: pre;\">	</span>After service of notice, the State has entered appearance through the learned AGA; the BDA & BBMP have entered appearance through their learned Panel Advocates. The BDA has filed a Statement of Objection on 12.7.2022 resisting the Writ Petition. Its Sr. Panel Counsel makes vehement submission for the dismissal of Petition contending that his client was not a party to the decree in question; the said decree was obtained ex parte qua the allottee of site in question; no explanation is offered for not arraying the BDA as a defendant; no Possession Certificate was ever issued to the allottee, though sital cost was remitted by him to the BDA in terms of Allotment Letter.</font><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">3.<span style=\"white-space: pre;\">	</span>Having heard the learned counsel for the parties and having perused the Petition Papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><font face=\"Calibri, sans-serif\">(i)<span style=\"white-space: pre;\">	</span>The site in question was allotted to Petitioner’s vendor after receiving the prescribed price and that the said site till date has been kept unallotted to anyone else are fairly admitted from the side of BDA, consistent with the records produced. Allotment of site is done not in a private negotiation but in accordance with the extant Allotment Rules promulgated under the erstwhile City of Bangalore Improvement Act, 1945 which has since been repealed by the Bangalore Development Authority Act, 1976, making the BDA a legal successor of City Improvement Trust Board. The Allotment Letter coupled with the payment of full price creates an equitable interest in the subject site in favour of allottee on the basis of which Petitioner has secured a Specific Performance decree in the subject suit, against him.</font><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(ii)<span style=\"white-space: pre;\">	</span>The above being the position, the decree of the Court has to be recognized and acted upon by the statutory authorities like the BDA, regardless of its being a party thereto or not, consistent with the ‘doctrine of feeding the grant by estoppel’ enacted in section 43 of the Transfer of Property Act, 1882 especially when no amount was due from the side of allottee towards the sital value nor any formal compliance was expected of him. Added, the subject site has been kept un-allotted to anyone else for decades and no third party rights have been created, either. Had BDA too been arrayed as a defendant, it would have been ideal for the adjudication of suit, is beside the point. If the allottee was entitled to have the conveyance in terms of allotment, his vendee standing in his shoes by virtue of agreement followed by Court decree, will have those rights, their jural correlative i.e., the duty resting on the shoulders of the then CITB and now BDA being its successor.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(vi)<span style=\"white-space: pre;\">	</span>Although, Article 261 employs the expression “proceedings of the Union and of every State” as a qualification to the norm enacted therein, its text & context support the view that the statutory authorities, in the absence of justification to the contrary, as of necessity and consistent with rule of law, have to take inter alia cognizance of judicial proceedings; this constitutional obligation becomes more imperative when such proceedings have culminated into effective decrees & orders. If fraud, fabrication & duplicity are apparent to the naked eye, such cases stand on a different footing in view of decision of Apex Court in S.P.CHENGALVARAYA NAIDU vs. JAGANNATH, hardly needs to be stated. The contention that no Possession Certificate was issued to the allottee and therefore, the one produced appears to be fake, does not come to the rescue of the Respondents, when allotment of site and receipt of the prescribed price therefor have been specifically admitted by the BDA.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">(vii)<span style=\"white-space: pre;\">	</span>By virtue of agreement followed by the Court decree, the Petitioner fills the character of original allottee and therefore, becomes entitled to have the conveyance at the hands of the allotter i.e., BDA in respect of the subject site. The contention that the Respondent-BDA was a proper party if not a necessary party to the suit, is difficult to sustain in the light of decision of the Apex Court in RAZIA BEGUM vs. SAHEBZADI ANWAR BEGUM4, which broadly discusses as to who is a proper and who a necessary party. For the adjudication of the suit, the only necessary party was the allottee of the site and none others. There is a lot of scope for the argument, had the BDA been arrayed as Defendant No.2 to the suit, it could have sought for its deletion from the Cause Title.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\">(viii)<span style=\"white-space: pre;\">	</span>The last contention of learned Panel counsel appearing for the BDA that the subject suit was decreed ex parte qua the allottee of the site in question and therefore, Court decree cannot be taken cognizance of, is untenable. So far as execution & enforceability of Court </font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">decrees are concerned, law does not differentiate between decrees that are obtained after full-fledged trial and those secured placing the defendants ex parte, subject to all just exceptions into which argued case of the Petitioner does not fit. Justice of the case even otherwise warrants that the BDA should do all endeavors to ensure fruits of the decree reach palms of the decree holder; an argument to the contrary cannot be sustained without undermining the sanctity of judicial process and that in turn would affect the rule of law in the realm.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><span style=\"font-weight: bolder;\">In the above circumstances, this Writ Petition succeeds; a Writ of Mandamus issues directing the Respondent-BDA to fructify the allotment of subject site in favour of the Petitioner-Decree Holder by executing & registering a regular conveyance within a period of eight weeks, failing which, the Respondent-BDA shall pay to the Petitioner a sum of Rs.500/- per day of delay brooked, in addition to risking the action for the contempt of this Court.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">Now, no costs.</span></font></span></p>', 'f182e0182f26f259478e21bcd188655c.JPG', '40fb8e51868c8a4afd8cb15969dd7e02.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-05', 1, '', '', '2023-03-31 13:24:38', '2023-04-05 12:18:59');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2862, 'iNwfIo0FHGE3ky8FzNKZgXnWh', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Attachment before judgment. The plaintiff must be able to demonstrate that on the day when the suit was filed, the defendant owed to him in a certain sum of money on account of a transaction between them. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">M/s. Kamalalaya Hilsoft (P) Ltd and others Vs M/s. Sree Venkateswara Developers.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 2385 of 2023 decided on 7 March 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Sreenivas Harish Kumar.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">The writ petitioners are defendants 1 to 3 in O.S.No.662/2023, on the file of XXXIX Additional City Civil Judge (CCH-40), Bengaluru. The respondent is the plaintiff and it, being a partnership firm, has claimed damages of Rs. 100,00,00,000/- (Rupees One hundred Crores) with interest at the rate of 12% per annum for slanderous and libelous defamatory statements made by the petitioners. The respondent also filed an application under Order XXXVIII Rule 5 CPC requesting the court to pass an order attaching the petitioners’ immovable property and bank account before judgment. The suit was filed on 27.01.2023, and on the same day the suit was posted before the court for consideration of I.A.No.1 filed under Order XXXVIII Rule 5 CPC. The petitioners had entered caveat, and in the presence of counsel for respondent and the petitioners, the trial court heard on I.A.1 and posted the case to 30.01.2023 for orders on the application. On 28.01.2023, the petitioners filed this writ petition seeking to quash the order dated 27.01.2023 produced at Annexure A. Since on 30.01.2023, the trial court passed an order directing the petitioners to show cause as to why they should not furnish security for the decree that may be passed in the suit, they have filed an application under Order VI Rule 17 CPC to insert additional prayer in the writ petition for quashing the order dated 30.01.2023, produced at Annexure A1. The application for amendment requires to be allowed.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">7.<span style=\"white-space: pre;\">	</span>There is another important aspect. Even to issue show cause notice or order conditional attachment, the court must arrive at a satisfaction that the defendant, in order to obstruct or delay the execution of any decree that may be passed against him is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court. The application must disclose these ingredients and the order of the court must disclose the satisfaction being arrived at based on materials provided by the plaintiff. If the order does not reflect the arrival of satisfaction, such an order can be questioned even before the court passes an order under Rule 6 of Order XXXVIII CPC.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">9.<span style=\"white-space: pre;\">	</span>Apart from the above there is one more aspect. The respondent’s suit is for damages, it has claimed this relief having felt defamed by the petitioner. Their claim for damages is not based on any transaction between them. A question whether the respondent can seek attachment for before judgment in a suit of this type, arises.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">10.<span style=\"white-space: pre;\">	</span>According to Order XXXVIII Rule 5 CPC, the defendant may be directed to provide security for a specified sum. The show cause notice also directs the defendant as to why he should not be required to furnish security for a specified sum. The term ‘sum specified’ means an ascertained sum, it may be a debt or a liability or an obligation on the defendant arising from a transaction between the plaintiff and the defendant. On the day when the suit is filed, if the debt or liability or obligation does not exist, the defendant cannot be asked to furnish security on the application filed under Order XXXVIII Rule 5 CPC. In a suit for damages, such a debt or liability or obligation does not arise until the court quantifies the damages. When Sri Thiruvengandam was questioned as to how an application under Order XXXVIII Rule 5 CPC can be filed in a suit for damages for defamation, his answer was that there is no bar as such in Rule 5 of Order XXXVIII, and he submitted further that according to Rule 1 of Order XXXVIII, an application can be made in any suit other than the suits mentioned in section 16 clauses (a) to (d) of Civil Procedure Code. Since the case on hand does not fall within the clauses of (a) to (d), application under Order XXXVIII Rule 5 CPC is very much maintainable. He also submitted that Rules 1 and 5 of Order XXXVIII CPC must be read together harmoniously.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">11.<span style=\"white-space: pre;\">	</span>It is not possible to accept the line of argument of Sri Thiruvengadam. Rule 1 of Order XXXVIII CPC deals with arresting a defendant before judgment and Rule 5 deals with attaching a property before judgment. Though the circumstances when the arrest or attachment can be ordered before judgment are same, in my opinion both have different consequences and therefore they cannot be read together. However, it may be stated that when an attachment before judgment is sought, the plaintiff must be able to demonstrate before the court that on the day when the suit was filed, the defendant owed to him in a certain sum of money on account of a transaction between them. The sum must be specific and only if the court is satisfied prima facie that on account of a transaction between the plaintiff and the defendant, there is an obligation or liability on the part of the defendant and in order to avoid the liability or obligation, the defendant is about to dispose of whole or any part of his property or remove the whole or any part of the property from local limits of the jurisdictional court, the court can entertain application under Order XXXVIII Rule 5 CPC.   But in the case on hand the suit is for damages in connection with alleged defamation. The plaintiff may have claimed Rs.100 crores towards damages. Till the court decides whether plaintiff is entitled to damages or not, the claim made by the plaintiff remains a fiction; it is not a specified amount. Obligation or liability does not come into existence till the court passes the decree in favour of the plaintiff. Therefore in a suit of this type application under Order XXXVIII Rule 5 CPC cannot be filed at all. Aptly applicable to a circumstance like this, I may refer to two judgments.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">In the case of M/s. Greenhills Exports (P) Limited and Others vs Coffee Board [ILR 2001 KAR 2950], a Division Bench of this court, after referring to many earlier judgments has culled out the following principles :</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\">(ii)<span style=\"white-space: pre;\">	</span>In regard to a claim for damages (whether liquidated or unliquidated), there is no \'existing obligation\' to pay any amount. No pecuniary liability in regard to a claim for damages, arises till a Court adjudicates upon the claim for damages and holds that the defendant has committed breach and has incurred a liability to compensate the plaintiff for the loss and then assesses the quantum of such liability. An alleged default or breach gives rise only to a right to sue for damages and not to claim any \'debt\'. A claim for damages becomes a \'debt due\', not when the loss is quantified by the party complaining of breach, but when a competent Court holds on enquiry, that the person against whom the claim for damages is made, has committed breach and incurred a pecuniary liability towards the party complaining of breach and assesses the quantum of loss and awards damages. Damages are payable on account of a fiat of the Court and not on account of quantification by the person alleging breach.</span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\"><br></span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\">(iii)<span style=\"white-space: pre;\">	</span>When the contract does not stipulate the quantum of damages, the Court will assess and award compensation in accordance with the principles laid down in Section 73. Where the contract stipulates the quantum of damages or amounts to be recovered as damages, then the party complaining of breach<span style=\"white-space: pre;\">	</span>can recover reasonable compensation, the stipulated amount being merely the outside limit.</span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\"><br></span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\">(v)<span style=\"white-space: pre;\">	</span>Even if the loss is ascertainable and the amount claimed as damages has been calculated and ascertained in the manner stipulated in the contract, by the party claiming damages, that will not convert a claim for damages into a claim for an ascertained sum due. Liability to pay damages arises only when a party is found to have committed breach. Ascertainment of the amount awardable as damages is only consequential.”<br></span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">12.<span style=\"white-space: pre;\">	</span>The Hon’ble Supreme Court in Raman Tech. and Process Engineering Company and Another vs Solanki Traders [(2008) 2 SCC 302] has held as below:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\">“5.   The power under Order 38 Rule 5 CPC is drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilize the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out of court settlement, under threat of attachment.”</span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\"><br></span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">13.<span style=\"white-space: pre;\">	</span>In the light of the principles enunciated in the above rulings, it can be stated that Rs.100 Crores that the respondent has claimed cannot be called a specified sum which has arisen out of a transaction giving rise to existence of a debt or liability or obligation. In a suit of this type, an application under Order XXXVIII Rule 5 CPC cannot be filed; and if it is filed, it should be dismissed in limine. Therefore, writ petition is allowed, impugned orders at Annexures-A and A1 are set aside.</span></font></p>', '20d1b69bb7922887545bbf9f69593a0c.jpeg', '0d2bd52d5632669b9e6cdfa02c7e3376.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-01', 1, '', '', '2023-03-31 13:25:52', '2023-04-01 03:19:22'),
(2863, 'JYFVrsvVCBLUP808IlrLZa2T7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Attachment before judgment in a suit for damages for defamation cannot be passed since the claim for damages is not an ascertained sum arising from a transaction between the parties. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">M/s. Kamalalaya Hilsoft (P) Ltd and others Vs M/s. Sree Venkateswara Developers.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 2385 of 2023 decided on 7 March 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Sreenivas Harish Kumar.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">The writ petitioners are defendants 1 to 3 in O.S.No.662/2023, on the file of XXXIX Additional City Civil Judge (CCH-40), Bengaluru. The respondent is the plaintiff and it, being a partnership firm, has claimed damages of Rs. 100,00,00,000/- (Rupees One hundred Crores) with interest at the rate of 12% per annum for slanderous and libelous defamatory statements made by the petitioners. The respondent also filed an application under Order XXXVIII Rule 5 CPC requesting the court to pass an order attaching the petitioners’ immovable property and bank account before judgment. The suit was filed on 27.01.2023, and on the same day the suit was posted before the court for consideration of I.A.No.1 filed under Order XXXVIII Rule 5 CPC. The petitioners had entered caveat, and in the presence of counsel for respondent and the petitioners, the trial court heard on I.A.1 and posted the case to 30.01.2023 for orders on the application. On 28.01.2023, the petitioners filed this writ petition seeking to quash the order dated 27.01.2023 produced at Annexure A. Since on 30.01.2023, the trial court passed an order directing the petitioners to show cause as to why they should not furnish security for the decree that may be passed in the suit, they have filed an application under Order VI Rule 17 CPC to insert additional prayer in the writ petition for quashing the order dated 30.01.2023, produced at Annexure A1. The application for amendment requires to be allowed.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">7.<span style=\"white-space: pre;\">	</span>There is another important aspect. Even to issue show cause notice or order conditional attachment, the court must arrive at a satisfaction that the defendant, in order to obstruct or delay the execution of any decree that may be passed against him is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court. The application must disclose these ingredients and the order of the court must disclose the satisfaction being arrived at based on materials provided by the plaintiff. If the order does not reflect the arrival of satisfaction, such an order can be questioned even before the court passes an order under Rule 6 of Order XXXVIII CPC.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">9.<span style=\"white-space: pre;\">	</span>Apart from the above there is one more aspect. The respondent’s suit is for damages, it has claimed this relief having felt defamed by the petitioner. Their claim for damages is not based on any transaction between them. A question whether the respondent can seek attachment for before judgment in a suit of this type, arises.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">10.<span style=\"white-space: pre;\">	</span>According to Order XXXVIII Rule 5 CPC, the defendant may be directed to provide security for a specified sum. The show cause notice also directs the defendant as to why he should not be required to furnish security for a specified sum. The term ‘sum specified’ means an ascertained sum, it may be a debt or a liability or an obligation on the defendant arising from a transaction between the plaintiff and the defendant. On the day when the suit is filed, if the debt or liability or obligation does not exist, the defendant cannot be asked to furnish security on the application filed under Order XXXVIII Rule 5 CPC. In a suit for damages, such a debt or liability or obligation does not arise until the court quantifies the damages. When Sri Thiruvengandam was questioned as to how an application under Order XXXVIII Rule 5 CPC can be filed in a suit for damages for defamation, his answer was that there is no bar as such in Rule 5 of Order XXXVIII, and he submitted further that according to Rule 1 of Order XXXVIII, an application can be made in any suit other than the suits mentioned in section 16 clauses (a) to (d) of Civil Procedure Code. Since the case on hand does not fall within the clauses of (a) to (d), application under Order XXXVIII Rule 5 CPC is very much maintainable. He also submitted that Rules 1 and 5 of Order XXXVIII CPC must be read together harmoniously.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">11.<span style=\"white-space: pre;\">	</span>It is not possible to accept the line of argument of Sri Thiruvengadam. Rule 1 of Order XXXVIII CPC deals with arresting a defendant before judgment and Rule 5 deals with attaching a property before judgment. Though the circumstances when the arrest or attachment can be ordered before judgment are same, in my opinion both have different consequences and therefore they cannot be read together. However, it may be stated that when an attachment before judgment is sought, the plaintiff must be able to demonstrate before the court that on the day when the suit was filed, the defendant owed to him in a certain sum of money on account of a transaction between them. The sum must be specific and only if the court is satisfied prima facie that on account of a transaction between the plaintiff and the defendant, there is an obligation or liability on the part of the defendant and in order to avoid the liability or obligation, the defendant is about to dispose of whole or any part of his property or remove the whole or any part of the property from local limits of the jurisdictional court, the court can entertain application under Order XXXVIII Rule 5 CPC.   But in the case on hand the suit is for damages in connection with alleged defamation. The plaintiff may have claimed Rs.100 crores towards damages. Till the court decides whether plaintiff is entitled to damages or not, the claim made by the plaintiff remains a fiction; it is not a specified amount. Obligation or liability does not come into existence till the court passes the decree in favour of the plaintiff. Therefore in a suit of this type application under Order XXXVIII Rule 5 CPC cannot be filed at all. Aptly applicable to a circumstance like this, I may refer to two judgments.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">In the case of M/s. Greenhills Exports (P) Limited and Others vs Coffee Board [ILR 2001 KAR 2950], a Division Bench of this court, after referring to many earlier judgments has culled out the following principles :</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\">(ii)<span style=\"white-space: pre;\">	</span>In regard to a claim for damages (whether liquidated or unliquidated), there is no \'existing obligation\' to pay any amount. No pecuniary liability in regard to a claim for damages, arises till a Court adjudicates upon the claim for damages and holds that the defendant has committed breach and has incurred a liability to compensate the plaintiff for the loss and then assesses the quantum of such liability. An alleged default or breach gives rise only to a right to sue for damages and not to claim any \'debt\'. A claim for damages becomes a \'debt due\', not when the loss is quantified by the party complaining of breach, but when a competent Court holds on enquiry, that the person against whom the claim for damages is made, has committed breach and incurred a pecuniary liability towards the party complaining of breach and assesses the quantum of loss and awards damages. Damages are payable on account of a fiat of the Court and not on account of quantification by the person alleging breach.</span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\"><br></span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\">(iii)<span style=\"white-space: pre;\">	</span>When the contract does not stipulate the quantum of damages, the Court will assess and award compensation in accordance with the principles laid down in Section 73. Where the contract stipulates the quantum of damages or amounts to be recovered as damages, then the party complaining of breach<span style=\"white-space: pre;\">	</span>can recover reasonable compensation, the stipulated amount being merely the outside limit.</span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\"><br></span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\">(v)<span style=\"white-space: pre;\">	</span>Even if the loss is ascertainable and the amount claimed as damages has been calculated and ascertained in the manner stipulated in the contract, by the party claiming damages, that will not convert a claim for damages into a claim for an ascertained sum due. Liability to pay damages arises only when a party is found to have committed breach. Ascertainment of the amount awardable as damages is only consequential.”<br></span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">12.<span style=\"white-space: pre;\">	</span>The Hon’ble Supreme Court in Raman Tech. and Process Engineering Company and Another vs Solanki Traders [(2008) 2 SCC 302] has held as below:</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\">“5.   The power under Order 38 Rule 5 CPC is drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilize the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out of court settlement, under threat of attachment.”</span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><span style=\"font-weight: bolder;\"><br></span></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">13.<span style=\"white-space: pre;\">	</span>In the light of the principles enunciated in the above rulings, it can be stated that Rs.100 Crores that the respondent has claimed cannot be called a specified sum which has arisen out of a transaction giving rise to existence of a debt or liability or obligation. In a suit of this type, an application under Order XXXVIII Rule 5 CPC cannot be filed; and if it is filed, it should be dismissed in limine. Therefore, writ petition is allowed, impugned orders at Annexures-A and A1 are set aside.</span></font></p>', 'd3ce87bb348a25711cca78369b0a13c1.jpeg', '44190ac2b8f99578e73d94c65d6c3975.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-03', 1, '', '', '2023-03-31 13:26:49', '2023-04-03 10:24:05'),
(2864, 'ZORKi3wBXAlfBwhOHhkxZFCYT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka SC-ST (PTCL) Act, 1978. In an appeal under Section 5A of the Act by the grantee, Deputy Commissioner can NOT stay mutation entry in the name of subsequent purchaser. Remedy is only under the Karnataka Land Revenue Act. Karnataka High Court.', '<p><span helvetica=\"\" neue\",=\"\" helvetica,=\"\" arial,=\"\" sans-serif;=\"\" font-size:=\"\" medium;\"=\"\" style=\"color: rgb(51, 51, 51);\"><b>Srinivasa vs Deputy Commissioner and others.&nbsp;</b></span></p><p><span helvetica=\"\" neue\",=\"\" helvetica,=\"\" arial,=\"\" sans-serif;=\"\" font-size:=\"\" medium;\"=\"\" style=\"color: rgb(51, 51, 51);\"><b>Writ Petition 11141 of 2021 decided on 22 July 2021.&nbsp;</b></span></p><p><span helvetica=\"\" neue\",=\"\" helvetica,=\"\" arial,=\"\" sans-serif;=\"\" font-size:=\"\" medium;\"=\"\" style=\"color: rgb(51, 51, 51);\"><b>Justice Sachin Shankar Magadum.&nbsp;</b></span></p><p><span helvetica=\"\" neue\",=\"\" helvetica,=\"\" arial,=\"\" sans-serif;=\"\" font-size:=\"\" medium;\"=\"\" style=\"color: rgb(51, 51, 51);\"><b>HELD: When grantee files an appeal under Section 5A of the Karnataka Scheduled Castes, Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, he cannot seek stay of mutation entries in the name of subsequent purchaser. His remedy is only to challenge the entries under the Karnataka Land Revenue Act. The Deputy Commissioner who acts as an appellate authority under the PTCL Act cannot stay the entries since there is no provision under the said Act in this regard.</b></span></p>', 'c911cf61f68383f7d1720bd5dfc2c671.jpeg', '74263ac072dc7839a4fdc80f251a1345.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-03', 1, '', '', '2023-04-03 11:02:31', '2023-04-03 11:02:31'),
(2866, 'RlxXb71SgBySZUv4QCyqYkwyC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Order XVIII Rule 17 of CPC. To recall the witness, there should be demonstrable bonafides in filing applications and the application should be filed without any delay. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shachi Shukla Vs Jaideep Nandy.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 17111 of 2022 decided on 20 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The petitioner is before this Court calling in question an order passed on I.A.Nos.XII and XIII by the concerned Court in M.C. No.3183/2015, by which the applications filed under Order XVIII Rule 17 of CPC seeking recall of P.W.1 being turned down.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Succinctly stated, facts that leads the petitioner to this Court are as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is the wife and the respondent is her husband. The two got married on 24.11.2014. From the wedlock, the couple have a child. The relationship between the two turns sour and results two proceedings: one in M.C. No.3183/2015 instituted by the husband seeking dissolution of the marriage and the other, the wife instituted proceedings in Bhopal seeking restitution of conjugal rights.   The issue in the lis does not concern either of the two. In the proceedings i.e., M.C. No.3183/2015, the petitioner files two applications-I.A. Nos.XII and XIII under Order XVIII Rule 17 of CPC seeking recalling of the respondent-husband/P.W.1 for further cross-examination on the score that the cross-examination of the husband has been inadequately done with and there were several lacune in the said cross-examination. The concerned Court, turns both the applications down, by the impugned order dated 19.07.2022. The rejection of the applications so filed by the petitioner is what drives the petitioner to this Court in the subject petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>The only issue that falls for consideration in the petition is: whether rejection of the applications filed by the petitioner is tenable in law or otherwise? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>Order XVIII Rule 17 of CPC permits a party to seek recalling of witnesses for examination or cross- examination as the case would be. The stage at which, it is to be entertained is what requires to be noticed in the case on hand.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>On examination of reasons rendered by the concerned court to reject the applications, which are in the considered view of this Court, cogent and in the peculiar facts of this case, I do not find any warrant to interfere with the order passed by the concerned Court rejecting the applications. The ground on which, the applications are filed is that there is change in counsel, it is germane to notice certain paragraphs of the applications as to whether any right of the petitioner is taken away by the rejection of the applications.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>The application is as vague vagueness could be, as the petitioner does not divulge what are that issues that are left out for cross-examination, which is necessary for seeking recall of the witnesses while seeking further examination or cross-examination as the case would be. Therefore, there is no ground that would entail interference with the impugned order.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>Insofar as the judgments relied by the learned counsel for the petitioner seeking to buttress her submission that the order of the concerned court is erroneous, are all distinguishable without much ado. The first judgment, in the case of Krishnaveni and others Vs. Gopal Pandithar reported in 2006 (5) CTC 394 what is germane is paragraph No.5, which clearly holds that there should be demonstrable bonafides in filing applications, it should be filed without any delay. The applications as observed herein-above, are filed after inordinate delay.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>The third judgment, in the case of Indian Airlines Corporation and others Vs. Late Duba Mohan per L.Rs. and others reported in 2003 SCC Online AP 1283 the Court also observes that the witness whose cross-examination is sought cannot contend that he has left to the United States and therefore render the case to be a case of no cross-examination. In the case at hand, the facts are otherwise. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space: pre;\">	</span>The other judgment, in the case of M/s. National Agro-Chemical Industries Ltd., Vs. National Research Development Corporation reported in ILR (2005) I DELHI 373 also is to the same effect. What would unmistakably emerge from all the aforesaid judgments is whether the exercise of discretion by the concerned Court, in the correct or otherwise. For the aforesaid reasons, I do not find any warrant to interfere with the order so passed. The petition deserves to be rejected and is accordingly rejected.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ba803cf6e52db290f860f352c66ed603.jpeg', '612e0b3d3294262f6378e18e9e80730d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-05', 1, '', '', '2023-04-04 16:00:58', '2023-04-05 07:01:54');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2867, 'fL5dOEsOKfojYXKNjFfHiimRG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'E-Auction. Court cannot telescope its imagination into the intricate details of conduct of e-auction since it does not possess expertise to sit in the armchair of experts. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>New Horizon Educational and Cultural Trust Vs The Federal Bank Limited and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 5145 of 2023 decided on 28 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner in the subject petition seeks a declaration that e-auction held by respondents 1 to 3 declaring sale of schedule property to be illegal and void and has sought for a further direction directing respondents 1 to 3 to conduct a fresh auction of sale. Though the matter was listed in orders, the matter was taken up for its final disposal with consent of parties. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Brief facts that lead the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> Respondents 5 to 8 were borrowers from respondents 1 and 2 Banks. The loan becoming sticky, proceedings were instituted under the Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (‘SARFAESI Act’ for short). The initiation of proceedings under the SARFAESI Act led the 1st respondent/Federal Bank Limited to conduct an e-auction of the property seeking to sell the property to redeem its mortgage and clearance of dues which according to the Bank at that point in time was `51 crores. The issue in the lis is not with regard to the amount borrowed and its validity or otherwise, as the borrowers are not before the Court. The Federal Bank on the loan becoming a non-performing asset notifies a date 28-02-2023 for conduct of e- auction. Certain nuances of e-auction were also made known to the participants in the said auction. The auction did take place on 28-02-2023 and the petitioner and the 9th respondent are the participants in the said e-auction. The 9th respondent was declared to be the successful bidder. The successful bidder was not made a party to these proceedings. The 9th respondent then files an impleading application which comes to be allowed and, therefore, he is a party to these proceedings. The issue is between the petitioner, the Federal Bank Limited and the 9th respondent, now the successful bidder and they are the three main protagonists in the issue. The challenge is to the manner in which e-auction is conducted by the 1st respondent/Bank and in that light the petitioner has sought the prayer to declare e-auction conducted to be null and void.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>The afore-narrated facts are not in dispute, respondents 5, 6 and 7 are the borrowers from the Federal Bank Limited and the amount was borrowed both from the Federal Bank Limited and the 2nd respondent/South Indian Bank in connection with the business. In order to get the finance from the aforesaid Banks the schedule property was mortgaged to the Federal Bank Limited. The loan became sticky and was declared to be a non-performing asset by the 1st respondent/Federal Bank Limited in consultation with the South Indian Bank. In unison the Banks decided to put the schedule property for sale, as by then the amount that was due to the Federal Bank Limited was `27,14,49,150/- and to the South Indian Bank `15,80,56,800/- crores. The sale was sought to be conducted by way of e-auction.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The terms and conditions would indicate that the sale would be only through online electronic bidding; the date and time of auction was on 28-02-2023 between 11 a.m. and 1 p.m. with unlimited extension of 5 minutes each; the auction was to commence at a reserve price as mentioned in the notice and bidders would improve their offers in multiples of `10 lakhs. Any increase in the bid amount over and above the reserve price is to be in the multiples of 10/- lakhs. All other conditions stipulated were generic except the one which was mentioned hereinabove was specific.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 10.<span style=\"white-space:pre\">	</span>The auction was conducted on 28-02-2023. The petitioner has produced certain screen shots of the website which show its participation in the auction to contend that at 15:54:21 hours the bid of the petitioner was at `52/- crores and the auction was shown to end in one second. Taking this forward, the learned senior counsel would contend that if the auction was to end in one second, the 9th respondent could not have become the successful bidder at 15:57 hours. After the closure of e-auction the petitioner submits a representation to the Bank that it could not access the website after 15:54 hours and, therefore, the auction has to be recalled and redone.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>The conditions of e-auction were that they would be operational from 11 a.m. to 1 p.m. with unlimited extension of 5 minutes each. Therefore, whenever a bid is increased by `10 lakhs from the reserve price, the time of the e-auction gets extended by 5 minutes. It is not in dispute that e-auction time got extended 37 times and stood closed on the last increase of `10 lakhs and no bids came forward beyond the said amount within the window of five minutes. Thus, the last of the bid placed by the petitioner was at 15:54:21 hours. The learned senior counsel for the petitioner submits that the auction would close in one second that is the screen shot of his website. If the other bidder would increase it by ten more lakhs the time would get increased by five more minutes. It is then in those five minutes the successful bidder/9th respondent has increased the bid by `10 lakhs. This is what could be discerned from the documents produced. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>Beyond what is discernible from the documents, this Court cannot telescope its imagination into what has transpired during e-auction to hold it to be arbitrary, as arbitrariness is neither palpable nor demonstrable, as is alleged. In the considered view of this Court, the nuances and interpretation of an electronic auction is within the domain of technical experts. This Court admittedly does not possess such expertise to sit in the armchair of such experts and review intricate details of conduct of e-auction. The certificate produced under Section 65B of the Evidence Act would suffice for this Court to be satisfied, in the peculiar facts of this case, that the procedure has indeed been appropriately followed. This Court has no reason to doubt such certificate. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>The allegation of the petitioner is that there was a technical glitch, because of which he could not access the website cannot become foundation for arbitrariness, as the other bidder/s have accessed it and submitted their bids. The petitioner also had accessed and submitted its bid up to 15:54 hours and it is then he alleges that there was a technical glitch. This cannot be accepted and the e-auction cannot be interfered with for the technical difficulties of the petitioner.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>What becomes germane to be noticed is who are the protagonists in the lis. The petitioner a private bidder; 9th respondent another private bidder; respondents 1 and 2 private Banks, all of whom are twined in an action of private bidding.   I fail to understand what is the public function that is involved in the case at hand for this Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India. The only circumstance is, that the auction is a product of proceedings instituted under the statute i.e., the SARFAESI Act, 2002. Barring the invocation of the statute for the purpose of conduct of auction, every other right, is a private right. Therefore, what can be reviewed is the action qua Article 14 of the Constitution of India i.e., arbitrariness. As observed hereinabove, I do not find the process to be arbitrary. Complicated nuances of conduct of an electronic auction is sought to be projected by the petitioner, which this Court admittedly does not have such expertise to decipher and assess threadbare. Going by what the documents are produced as certificates by the competent Authorities with regard to the conduct of auction, the petition does not merit any indulgence at the hands of this Court and would necessarily meet its dismissal.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 16.<span style=\"white-space:pre\">	</span>The petition thus stands rejected.Interim order granted stands dissolved.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> Pending applications also stand disposed accordingly. </b><br></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6a77f117d846525b8da9d485b9c1a114.jpeg', 'b3ca4277562e94350ce01b1155537801.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-06', 1, '', '', '2023-04-04 16:14:58', '2023-04-06 10:29:44'),
(2868, 'MnRIcmtnBlKPmIPV0iuYhe54x', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Being physically handicapped by itself is not a favourable factor in considering the bail application of the accused when the gravity of the offence is serious in nature. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Narayanaswamy Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 10586 of 2022 decided on 21 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V Srishananda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Brief facts of the case are as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>A complaint came to be lodged by Smt. Christina.P W/o George in Kumaraswamy Layout police station which was registered in Cr.No.216/2021 on 20.08.2021 for the offences punishable under Section 302 and 201 of IPC, initially against the unknown person. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>Gist of the complaint averments reveal that Christina.P is the relative of Smt. Premalatha and her husband Shantharaju. Premalatha and Shantharaju were residing in house bearing No.236, 2nd Main, Harsha School Road, Harsha Layout, Kashinagar, Yelachenahalli, Bengaluru City. Shantharaju retired as a Mechanic from in BMTC about 18 years earlier and was living with his wife and they had no children of their own and as such they have adopted one girl by name Harshitha @ Baby. She used to often visit the house of Premalatha and Shantharaju.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 5.<span style=\"white-space: pre;\">	</span>When the matter stood thus, on 20.08.2021 at about 2.30 p.m., Shobha one of the tenants of Shantharaju called the mother-in-law of the complainant by name Asha and told that somebody had murdered both Premalatha and Shantharaju. Immediately, complainant, his younger sisters Reena and Latha visited the house of Shantharaju at about 5.30 pm., and went inside the house and noticed that dead body of Premalatha was found in bathroom and dead body of Shantharaju was found in the bedroom. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>Based on the complaint, police registered a case against the unknown person and investigated the matter. During the course of the investigation, the petitioner has been apprehended by the police on 23.08.2021 and gold ornaments weighing 72 grams were recovered from the custody of the petitioner based on his voluntary statement. The police were also able to recover gold ornaments from the co-accused persons. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>The voluntary statement further discloses that the petitioner and others hatched a plan to take away the life of the couple and take away the valuables found in the house of Premalatha and Shantharaju. In furtherance of their plan, on the fateful day, they entered the house of Premalatha and Shantharaju, and used the force and killed both of them. The allegation as against the petitioner is that he smothered Premalatha with the help of a pillow to kill her and later on dragged her to the bathroom, and banged her head to the wall, whereby Premalatha lost her life. The co-accused persons assaulted mercilessly Shantharaju and his life was also taken of by the accused persons. Thereafter, they robbed the gold ornaments and other valuables found in the house and ran away. After arresting the petitioner, he was sent to judicial custody. During custodial interrogation, there is a recovery of robbed gold ornaments from the custody of the accused persons including the present petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>The request for grant of bail by the petitioner was turned down by order dated 22.08.2022 in SC No.1497/2021 before the District Court. Thereafter petitioner is before this Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>On such perusal of the material on record, it is seen that one of the tenants of the premises bearing No.236, 2nd Main, Harsha School Road, Harsha Layout, Kashinagar, Yelachenahalli, Bengaluru City, by name Shobha came to know about the murder of Premalatha and Shantharaju and called the mother-in-law of the complainant by name Asha, around 3.30 p.m., on 20.08.2021 and intimated about the murder of Premalatha and Shantharaju. Thereafter, the complainant visited the place of incident and after verification of the intimation received by her, she approached the jurisdictional police and lodged the complaint.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 20.<span style=\"white-space:pre\">	</span>On perusal of the material on record, it is seen that police after registering the case against unknown person, investigated the matter thoroughly. During such investigation, the petitioner has been apprehended; so also the co-accused persons. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space:pre\">	</span>Based on the voluntary statement given by the accused persons, gold ornaments which were found on the body of Premalatha, one of the deceased in the incident, has been recovered from the custody of the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22.<span style=\"white-space:pre\">	</span>Admittedly, petitioner is not such an affluent person so as to possess 72 grams of gold. Having regard to the financial status of the petitioner and in the absence of any plausible explanation offered by the petitioner to possess the gold ornaments which were found on the body of Premalatha and identified by the prosecution witnesses, prima facie there exists a nexus between the incident and the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space:pre\">	</span>The fact that the petitioner is a handicapped person, as is rightly contended by the learned High Court Government Pleader, would not itself act as a favourable factor in considering the bail request of the petitioner inasmuch as according to the prosecution, it is the petitioner who smothered Premalatha with the help of a pillow and thereafter, the co- accused dragged her and banged her head on to the wall and done to death.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>28.<span style=\"white-space:pre\">	</span>Now coming to the decisions relied on by the learned counsel for the petitioner, in the case of Nikesh Tarachand Shah, the Hon’ble Apex Court while dealing with the scope of the Prevention of Money Laundering Act, 2002 and other allied offences, held that continuation of the accused in a given case in judicial custody is warranted or not. In the case on hand, the provisions that are invoked by the prosecution is Sections 302 and 201 IPC, therefore, the facts of this case and the facts in the case of Nikesh Tarahand Shah supra, are totally different and therefore the same is not of any help for the petitioner in advancing his case any further. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>29.<span style=\"white-space:pre\">	</span>In the case of Sanjay Chandra, the Hon’ble Apex Court while dealing with a situation that when once the charge sheet is filed and when the petitioner would be brought before the Court for the trial, the courts are to be liberal in accepting the bail request of the given accused. In the case on hand, having regard to the gravity of the offence, especially valuable life of two senior citizens have been lost in the incident only for the gain of petitioner and others, this Court is of the considered opinion that the principles of law enunciated in Sathish Chandra supra that bail is a rule and jail is an exception, cannot be applied in all force to the case on hand. In the present case exception would prevail more than the Rule. As such, the said decision is also of no avail in accepting the bail request of the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>30.<span style=\"white-space:pre\">	</span>Nextly, the learned counsel for the petitioner relied on the judgment of Lt.Col. Prakash Srikanth Purohit. In the said case, the principles of law enunciated by the Hon’ble Apex Court was with regard to the offences alleged against an accused under the provisions of TADA Act. It is pertinent to note that the said Act has now been repealed and the facts of the case involved in the Purohit’s case is altogether different in the case on hand. Therefore, the principles of law enunciated in the said decision is not applicable to the case on hand. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>31.<span style=\"white-space:pre\">	</span>In the case of Dattaram Singh, the Hon’ble Apex Court was dealing with the situation where an accused would be treated as an innocent in view of the presumption available to the given accused and therefore, prosecution case is to be appreciated vis a vis, the presumption available to an accused. In the case on hand, since there is no explanation what so ever offered by the accused/petitioner insofar as possession of 72 grams of the gold which has been identified that those seized ornaments are belonging to the deceased Premalatha by the prosecution witnesses, this Court is of the considered opinion that the principles of law enunciated in the Dattaram Singh’s case though cannot be found fault with, are not applicable to the facts of the case and therefore, the same is also not much avail for the petitioner in getting him enlarged on bail. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>32.<span style=\"white-space:pre\">	</span>In yet another decision that has been relied on behalf of the accused the case of Anil Kumar Yadav referred to supra, the Hon’ble Apex Court was considering that the accused was in custody for a period of more than one year and therefore, in a murder like crime, if the accused was in custody for more than one year may not be relevant consideration in granting the bail. In fact, this decision would help the prosecution rather than the accused. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>33.<span style=\"white-space:pre\">	</span>In the case of Sharad Biradhichand Sarda, the Hon’ble Apex Court was considering the relevant factors to hold that a particular accused is guilty of the offence when the case is based on circumstantial evidence and their Lordships in that celebrated judgment have enunciated that five important circumstances are to be established by the prosecution in order to bring home the guilt of the accused based on circumstantial evidence. Nobody can dispute the golden principles enunciated by the Hon’ble Apex Court in the said case. However, the said aspect is to be looked into by the Trial Court after the full fledged trial and at this stage this Court cannot delve upon the details and merits of the case as the same may prejudice the case of the parties during trial on one way or the other. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>34.<span style=\"white-space:pre\">	</span>Suffice to say that the material available on record at this stage would definitely dis-entitle the present petitioner from obtaining an order of grant of bail by resorting to the special powers vested in this Court under Section 439 Cr.P.C., especially in view of the fact that there is a huge quantity of gold is recovered from the custody of the accused based on his voluntary statement. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>35.<span style=\"white-space:pre\">	</span>Accordingly, this Court is of the considered opinion that the grounds urged in the petition are hardly sufficient to admit the request of grant of bail.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The Criminal Petition is dismissed. </b><br></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '398476468d6f92412e323cfb4bb5ff41.JPG', 'afd8f5166bdafb52e8b9418e18c6f6d7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-05', 1, '', '', '2023-04-04 16:24:15', '2023-04-05 10:25:17'),
(2869, 'VIhaPVRsMk4x0NDv8m2oTVXFt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bank cannot withhold security documents on the ground that the mortgagee sold the property to a third party during the mortgage period when the entire loan amount is paid to the Bank. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vinu Madhavan Vs State Bank of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WP(C) 4806 of 2023 decided on 17 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Shaji P. Chaly.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The writ petitioner who has availed housing loans from the\r\nState Bank of India, Vennala Branch, Kochi, respondent No.1, has\r\nfiled the writ petition, seeking a writ of mandamus commanding the\r\nrespondents to release the security documents, including the\r\noriginal title deed pertaining to Exhibit P1, to the petitioner at the\r\nearliest and for other related reliefs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n2. Brief material facts for the disposal of the writ petition are\r\nas follows:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner, in the year 2015, has availed housing loans for\r\na total amount of Rs.16 lakhs from the respondent Bank by\r\nmortgaging the original of Exhibit P1 title deeds of his property.\r\nAccording to the petitioner, his business collapsed and to tide over\r\nthe said situation, during the year 2016, the petitioner’s wife got\r\nher share in cash from her family and offered to invest the same\r\ninto the petitioner’s business, subject to the condition that ¼ share\r\nin the petitioner’s property including the right and ownership of the\r\nfirst floor of the building therein would be assigned to her. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Accordingly, a deed was executed in favour of the petitioner’s wife.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n3. Thereafter, in the year 2022, the respondent Bank was\r\nmade aware of the execution of settlement deed in respect of the\r\nmortgaged property and thereupon, the Bank asked the petitioner\r\nto close the loan accounts. Accordingly, the loans were closed by\r\nthe petitioner on 07.04.2022, as is evident from Exhibit P3 closure\r\nletter dated 12.04.2022. Even though the petitioner requested to\r\nrelease the security documents, including title deed of his property,\r\nthe Bank did not take any action.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The second respondent has filed a statement reiterating\r\nthe stand adopted by the Bank in Exhibit P7 letter. It is the\r\ncontention of the Bank that during the subsistence of the mortgage,\r\na portion of the property was alienated by the petitioner in favour of\r\nhis wife; thereafter, a portion of the said property was mortgaged\r\nbefore the Kanayannur Taluk Co- operative Agriculture and Rural\r\nDevelopment Bank and two loans were availed by concealing the\r\nmortgage made in favour of the respondent bank. Therefore, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contention of the Bank is that the Bank is entitled to proceed\r\nagainst the petitioner.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The basic question to be considered is, merely because the\r\nmortgaged property was transferred or alienated by the petitioner\r\nduring the subsistence of the mortgage, but the entire loan\r\namounts are paid to the satisfaction of the Bank, whether the bank\r\nis entitled to retain the security documents. In order to understand\r\nthe real implication of a mortgage, it is worthwhile to refer to\r\nSection 58 of the Transfer of property Act, 1882, where the term\r\n‘mortgage’ is interpreted as the transfer of an interest in specific\r\nimmovable property for the purpose of securing the payment of\r\nmoney advanced or to be advanced by way of loan, an existing or\r\nfuture debt, or the performance of an engagement which may give\r\nrise to a pecuniary liability.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. So also, as per Section 60-A of the Act, 1882, a mortgagor\r\ncan seek redemption, on the fulfillment of any conditions on the\r\nfulfillment of which he would be entitled to require a re-transfer, he\r\nmay require the mortgagee, instead of re- transferring the property,\r\nto assign the mortgage-debt and transfer the mortgaged property\r\nto such third person as the mortgagor may direct; and the\r\nmortgagee shall be bound to assign and transfer accordingly.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. That apart, Section 83 of the Act, 1882 makes it clear\r\nthat at any time after the principal money payable in respect of any\r\nmortgage has become due and before a suit for redemption of the\r\nmortgaged property is barred, the mortgagor, or any other person\r\nentitled to institute such suit, may deposit, in any court in which he\r\nmight have instituted such suit, to the account of the mortgagee,\r\nthe amount remaining due on the mortgage and seek redemption of\r\nthe mortgage.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Section 91 of the Act, 1882 deals with persons who may\r\nsue for redemption, which specifies that besides the mortgagor, any\r\nof the following persons may redeem, or institute a suit for\r\nredemption of, the mortgaged property, namely:— (a) any person\r\n(other than the mortgagee of the interest sought to be redeemed)\r\nwho has any interest in, or charge upon, the property mortgaged or <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in or upon the right to redeem the same; (b) any surety for the\r\npayment of the mortgage-debt or any part thereof; or (c) any\r\ncreditor of the mortgagor who has in a suit for the administration of\r\nhis estate obtained a decree for sale of the mortgaged property.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. On an analysis of the afore discussed provisions, it is\r\nclear that merely because the property was transferred by the\r\npetitioner during the subsistence of the mortgage, however the\r\ninterest of the Bank is protected by closing the loan account, the\r\nBank is not entitled to withhold the security documents on the\r\nground that the petitioner has transferred the property during the\r\nsubsistence of the mortgage. Further, the Bank is not entitled to\r\nadjudicate an issue with respect to the fraud allegedly committed;\r\nand merely because the Bank initiates any action, the Bank is not\r\nentitled to detain the title documents and other security documents\r\nsubmitted by the petitioner before Bank. This is because the\r\nmortgage was created solely for the purpose of securing the loans,\r\nwhich was paid off by the petitioner. Therefore, if at all the bank\r\nsuffered any loss consequent to the transfer of the property made\r\nby the petitioner, it has to be adjudicated by a competent court of\r\nlaw and not by the bank. Therefore, the unilateral action of the\r\nbank withholding the security document is an illegal and arbitrary\r\naction.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. The Bank does not have a case that the Bank has\r\nproceeded with the sale of the mortgaged property before the loans\r\nwere closed by the petitioner; and that, consequent to the\r\nassignment/transfer of the mortgaged property made by the\r\npetitioner, the Bank has suffered any loss.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Considering the facts, law and the discussions made above, I\r\nam of the considered opinion that the petitioner is entitled to\r\nsucceed in the writ petition. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '354a7c32a70694cf6766937828da8b37.jpeg', '790f1c6fcc561bbc3ea71cb9bd435ac7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-06', 1, '', '', '2023-04-05 13:05:08', '2023-04-06 06:56:05');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2870, 'rfUtP496i0I1JOACdFDtNy5Qv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Election Law. Purchase of Medi Assist Policies by a candidate prior to nomination but distribution of the same after the nomination would amount to bribery in terms of Section 123 of the R.P. Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>B. Suresh Gowda Vs D.C. Gowrishankaraswamy and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Election Petition 1 of 2018 decided on 30 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Sunil Dutt Yadav.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The present Election Petition has been filed under Sections 80, 81, 100 read with Section 123 of the Representation of the People Act, 1951 (\'R.P. Act\') seeking to set aside the election of respondent No.1 to the 15th Karnataka Legislative Assembly from Tumkur Rural Assembly Constituency held during May 2018 and consequently declare the petitioner as duly elected to fill the seat of Karnataka Legislative Assembly as regards Tumkur Rural Assembly Constituency (No.133).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space:pre\">	</span>The facts make out that the petitioner and respondent No.1 had filed nomination seeking election to the Karnataka Legislative Assembly from Tumkur Rural Assembly Constituency. The petitioner belongs to the Bharatiya Janata Party (BJP), while the respondent No.1 belongs to Janata Dal (S) Party [JD(S) Party]. In the ensuing elections, the petitioner is stated to have obtained 77,100 votes, while the respondent No.1 had secured 82,740 votes and was declared as elected by margin of 5,640 votes and the Returning Officer had issued Form No.21-C under Section 64 of the R.P. Act declaring the respondent No.1 as elected. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>The petitioner has challenged the validity of the election of respondent No.1 contending that his election was vitiated by commission of corrupt practices as defined under Sections 123(1) and 123(2) of the R.P. Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>The following issues have been framed on 24.01.2020 and as per order dated 06.03.2020, Issue No.6 came to be deleted and the Issues as on date stand as follows:- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>\"(i) Whether the petitioner has complied with all the requirements of Section 83 of the Representation of People Act, 1950 (R.P. Act for brevity)? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>Whether the petitioner proves that the respondent no.1, his election agents and others with first respondent’s knowledge and consent has committed the following corrupt practices as defined under the R.P. Act and hence his election is to be declared as void.- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>a)<span style=\"white-space:pre\">	</span>Whether petitioner proves donations were made to the Shanidevaru Temple at Dasarahalli through Sri Maruti Seva Samithi in order to entice the voters to vote in favour of respondent No.1 ?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> b)<span style=\"white-space:pre\">	</span>Whether the petitioner proves respondent no.1 either by himself or through persons associated with him had promised to distribute free seats in Engineering College?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> c)<span style=\"white-space:pre\">	</span>Whether the petitioner proves that Sri Maruthi Seva Samithi has taken out insurance policies on the wards of the voters and distributed the same at the instance and on behalf of respondent<span style=\"white-space:pre\">	</span>No.1 and<span style=\"white-space:pre\">	</span>thereby committed corrupt practice by enticing the voters?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> d)<span style=\"white-space:pre\">	</span>Whether the petitioner proves that the Medi Assist Policies were cancelled on the basis of complaints? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space:pre\">	</span>Whether the petitioner proves that the respondent no.1, election agents and the persons associated or claiming through him have committed any other corrupt practice as made out in the petition within the meaning of Section 123 of R.P.Act ? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv)<span style=\"white-space:pre\">	</span>Whether all allegations regarding corrupt practice relate to a period subsequent to the nomination? If not, whether the other allegations can be taken note of ? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(v)<span style=\"white-space:pre\">	</span>Does the petitioner prove that respondent no.1 is associated with Sri Maruthi Seva Samithi and if so, in what manner ? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(vi)<span style=\"white-space:pre\">	</span>Issue deleted vide Order dated 06.03.2020.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (vii)<span style=\"white-space:pre\">	</span>Whether the petitioner is entitled to be declared as elected in place of the first respondent in terms of Section 101 of R.P. Act as a consequential relief if the election of the returned candidate is set aside ?\"<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>Issue Nos.(ii)(a) and (ii)(b) are taken up together for consideration as relevant facts and evidence that is considered for disposal of the said issues are common. The issues framed are as follows:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (ii)<span style=\"white-space:pre\">	</span>WHETHER THE PETITIONER PROVES THAT THE RESPONDENT NO.1, HIS ELECTION AGENTS AND OTHERS WITH FIRST RESPONDENT’S KNOWLEDGE AND CONSENT HAS COMMITTED THE FOLLOWING CORRUPT PRACTICES AS DEFINED UNDER THE R.P.ACT AND HENCE HIS ELECTION IS TO BE DECLARED AS VOID. - </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a)<span style=\"white-space:pre\">	</span>WHETHER PETITIONER PROVES DONATIONS WERE MADE TO THE SHANIDEVARU TEMPLE AT DASARAHALLI THROUGH SRI MARUTI SEVA SAMITHI IN ORDER TO ENTICE THE VOTERS TO VOTE IN FAVOUR OF RESPONDENT NO.1 ?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (b)<span style=\"white-space:pre\">	</span>WHETHER THE PETITIONER PROVES RESPONDENT NO.1 EITHER BY HIMSELF OR THROUGH PERSONS ASSOCIATED WITH HIM HAD PROMISED TO DISTRIBUTE FREE SEATS IN ENGINEERING COLLEGE? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>The above issues relate to the assertion of petitioner that with the consent of respondent No.1, the persons acting on his behalf have made donations to Shanidevaru Temple at Dasarahalli Village through KMSS in order to entice the voters and that further, the respondent No.1 by himself or through persons associated with him had promised to distribute free seats in the Engineering College managed by KMSS.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">19(iii)     Insofar as the allegation relating to father of respondent No.1 informing the public through an interview that if JD(S) Party is returned to power, he would give 1,000 free seats in the Engineering College run by KMSS, the said allegation has been specifically denied.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space:pre\">	</span>Insofar as corrupt practice falling within the scope of Section 123 of R.P. Act, it is clear that the same must be committed by a candidate. A ‘candidate’ has been defined under Section 79(b) of the R.P. Act as “a person who has been or claims to have been duly nominated as a candidate at any election.\"  Section 34 of the R.P. Act provides that a candidate shall not be deemed to be duly nominated unless he deposits or causes to be deposited in case of an election from an Assembly Constituency, a sum of Rs.10,000/-.   It is further specified under Section 34(2) of R.P. Act that any sum required to be deposited under sub-section (1) shall not be deemed to have been deposited unless at the time of delivery of nomination paper, the candidate has deposited the said amount.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Accordingly, unless a person is a \'candidate\' in terms of Section 34 of R.P. Act, any corrupt practice committed earlier cannot be taken note of for the purpose of Section 123 of the R.P. Act</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space:pre\">	</span>Accordingly, both the alleged corrupt practices relate to the period prior to respondent No.1 filing his nomination hence, there arises no other reason for enquiring into the said aspect any further. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24.<span style=\"white-space:pre\">	</span>Accordingly, the issue Nos.ii(a) and ii(b) are answered in the negative.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>PART - B 25.<span style=\"white-space:pre\">	</span>Issue Nos.-(ii)(c), (ii)(d) and (v) are taken up together for consideration, as relevant facts and evidence that are considered for disposal of the said issues are common.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The issues are as follows:- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii) WHETHER THE PETITIONER PROVES THAT THE RESPONDENT NO.1, HIS ELECTION AGENTS AND OTHERS WITH FIRST RESPONDENT’S KNOWLEDGE AND CONSENT HAS COMMITTED THE FOLLOWING CORRUPT PRACTICES AS DEFINED UNDER THE R.P.ACT AND HENCE HIS ELECTION IS TO BE DECLARED AS VOID. – </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(c)<span style=\"white-space:pre\">	</span>WHETHER THE PETITIONER PROVES THAT SRI MARUTHI SEVA SAMITHI HAS TAKEN OUT INSURANCE POLICIES ON THE WARDS OF THE VOTERS AND DISTRIBUTED THE SAME AT THE INSTANCE AND ON BEHALF OF RESPONDENT NO.1 AND THEREBY COMMITTED CORRUPT PRACTICE BY ENTICING THE VOTERS?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(d)<span style=\"white-space:pre\">	</span>WHETHER THE PETITIONER PROVES THAT THE MEDI ASSIST POLICIES WERE CANCELLED ON THE BASIS OF COMPLAINTS? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(v) DOES THE PETITIONER PROVE THAT RESPONDENT NO.1 IS ASSOCIATED WITH SRI MARUTHI SEVA SAMITHI AND IF SO, IN WHAT MANNER? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26(i)         It is the case of the petitioner that KMSS is a family controlled Society and that the family members of the respondent No.1 control it by virtue of being the office bearers, that the Medi Assist Policy was taken out by KMSS, which would enable the insured who are children studying in schools to obtain the benefit of reimbursement of medical expenses upto Rs.10,000/- in the event of treatment and that there was distribution of the Medi Assist Identity Cards, which were in a cover containing the photograph of Sri.H.D.Devegowda, Former Prime Minister, Sri.H.D.Kumaraswamy, Former Chief Minister and Sri.C.Chennigappa by Sri Arehalli Manjunath, Smt.Renukamma, Sri Krishnegowda and Smt.Sunandamma, who are JD(S) Party workers.   It was further alleged that the distribution of Medi Assist cards was for the purpose of luring the voters to vote for respondent No.1. It was also contended that distribution is done to Sri Lakshminarayana V.N, Sri Gopalaiah, Sri Mahadevaiah, Sri D.R.Ramesh, Smt.Ramamani, whose children were beneficiaries and have produced the said Medi Assist cards in their evidence.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26(vi) Accordingly it is averred that   the respondent No.1 with the aid of his father had indulged in corrupt practice falling within the scope of Section 123 of the R.P. Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>28.<span style=\"white-space:pre\">	</span>A legal contention that requires to be considered is as to whether the issuance of Medi Assist Policy at Ex.P.80 on 26.02.2018 could be taken note of and finding recorded regarding commission of corrupt practice relating to Ex.P.80, while the schedule for the election was published in the Gazette on 17.04.2018 and the nomination was stated to have been filed on 23.04.2018. This assumes importance in light of the settled position that the commission of a corrupt practice could be taken note of only after the returned candidate pursuant to his nomination has made deposit as envisaged under Section 34 of the R.P. Act. Section 79(B) defines a \'candidate\' as a person who has been duly nominated as a candidate which must be read in conjunction with Section 34 which provides that the candidate shall not be deemed to be duly nominated unless he deposits the sum prescribed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>31.<span style=\"white-space:pre\">	</span>In the present factual matrix, the issuance of the Medi Claim Policy at Ex.P.80 was admittedly prior to date of nomination of respondent No.1. That by itself would not form an act of corrupt practice.   However, where pursuant to the issuance of policy as per Ex.P.80, Medi Assist cards were distributed subsequent to the date of nomination with the purpose of enticement to the electors to vote for the respondent No.1, such distribution of Medi Assist cards with enticement, subject to proof, would be a stand alone corrupt practice.   Nevertheless, the taking out of Medi Ass ist Policy prior to the date of nomination, seizure including Medi Assist cards as detailed in P.F. No.31/2018 in Crime No.0073/20188 and acts of distribution of Medi Assist cards after the cut off date would be circumstances to be taken note of to come to a conclusion regarding the pattern of commission of bribery as is made out in the present case.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>62.<span style=\"white-space:pre\">	</span>No doubt, the content of Exhibits P10(a) and P11(a) cannot be taken note of as being conclusive proof regarding the incidents narrated but could be taken note of only for the purpose of inferring that the issue regarding cancellation was in public domain as on 09.05.2018 [Ex.P10(a)] and on 11.05.2018 [Ex.P11(a)], both of which were prior to the date of polling on 12.05.2018. The contradictory stand taken in Exhibits-P10 and P11 regarding the cancellation and absence of any clarification by M/s. New India Assurance Co. Ltd. and KMSS, or any stand by respondent No.1 distancing himself from the Medi Assist cards alleged to have been issued with his consent, while further noticing that no effort was made by M/s. New India Assurance Co. Ltd. or the Authorities to withdraw the Medi Assist cards has had the effect of continuance of impression in the minds of those who had received the Medi Assist cards regarding its benefits and accordingly its capability of enticing the voters as on the polling date continued. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Accordingly, though the issue as to whether the Medi Assist Policy was cancelled on the basis of complaints is answered in the affirmative, it in fact has no effect insofar as the capability of Medi Assist cards to act as an object of enticement. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>63.<span style=\"white-space:pre\">	</span>Accordingly, the issue Nos.2(d) and (v) are answered in the affirmative. As regards issue No.ii(c), a part of the issue that KMSS has taken out policies on the wards of the voters, the issue is held in the affirmative. However, there is no direct evidence of KMSS distributing the policies directly and the portion of the issue regarding KMSS having distributed the policies is held in the negative, though it may have facilitated such distribution as circumstances are made out as per discussion infra.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>64.<span style=\"white-space:pre\">	</span>Issue No.(iii) is taken up for consideration and the issue framed is as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> \"WHETHER THE PETITIONER PROVES THAT THE RESPONDENT NO.1, ELECTION AGENTS AND THE PERSONS ASSOCIATED OR CLAIMING THROUGH HIM HAVE COMMITTED ANY OTHER CORRUPT PRACTICE AS MADE OUT IN THE PETITION WITHIN THE MEANING OF SECTION 123 OF R.P. ACT ?\"<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>65.<span style=\"white-space:pre\">	</span>The election of a returned candidate could be declared to be void by the High Court, if a corrupt practice has been committed by the returned candidate, his election agent/any other person with the consent of the returned candidate in terms of Section 100(1)(b) of the R.P. Act<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>68.<span style=\"white-space:pre\">	</span>In the present case, the alleged corrupt practice is the distribution of Medi Assist cards by agents/Party workers/other persons with the express quid pro quo of the recipient voting for the returned candidate.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>109.<span style=\"white-space:pre\">	</span>Thus it is clear that \'consent\' can be express or implied and in essence is an “act of reason accompanied by deliberation”. The \'consent\' could be implied by existence of circumstances indicating approval for action of others, non- taking of positive action to prohibit commission of acts could also be one of the circumstances and if the same is taken note of along with other circumstances, \'consent\' could be inferred. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>110.<span style=\"white-space:pre\">	</span>The finding relating to commission of corrupt practice as made out under Sections 100 and 123 of R.P. Act by persons on behalf of respondent No.1 requires that the corrupt practice was committed with his consent.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 111.<span style=\"white-space:pre\">	</span>The evidence could be direct or through circumstantial. The only element of caution that is required to be exercised while relying on circumstantial evidence is that the chain of circumstances must not be interrupted.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>113.<span style=\"white-space:pre\">	</span>In the present case, the aspect of consent of respondent No.1 and the corrupt practice of bribery by Sri Arehalli Manjunath, Sri Krishnegowda, Smt.Renukamma and Smt.Sunanda is taken to be proved by circumstantial evidence and the circumstances are as follows:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space:pre\">	</span>The stand of respondent No.1 is that there was MoU between ORCF and KMSS whereby KMSS was required to furnish data of the poor students residing in its jurisdiction. Though the MoU is stated to have been seen by respondent No.1, the same is not produced.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>Kishore Vardachari - RW2 the Trustee of ORCF in his deposition recorded on 04.04.2022 has admitted that there was an understanding between ORCF and KMSS in the nature of written understanding. It is stated that ORCF had approached KMSS for the purpose of assistance and in that regard, they had approached Sri C. Chennigappa, father of respondent No.1 to whom the proposal was given.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space:pre\">	</span>It is the specific stand of respondent No.1 that MoU was limited only to the sharing of data. In the absence of said MoU being produced and Medi Assist Policy being issued in the name of KMSS as per Ex.P80, the plain understanding and best evidence is to the effect that Medi Assist Policy was taken out in the name of KMSS.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(xi)<span style=\"white-space:pre\">	</span>The distribution of Medi Assist Policies has also been corroborated by the parents of students who were examined as PW.3, PW.5, PW.6 and PW.8. The said witnesses have asserted that there has been distribution by Sri Arehalli Manjunath, Smt.Renukamma, Smt.Sunanda and Sri Krishnegowda. The said witnesses have withstood the cross-examination and also produced the identity cards such as detailed in the table supra at para-97, which corroborates the correctness of entry of names of students in the Medi Assist cards marked as Exhibit P23 series, Exhibits.P52, P63, P68, and P76. (xii)<span style=\"white-space:pre\">	</span>The handing over of Medi Assist Policies to the parents of the children who were voters was an inducement to ensure that they would vote for the respondent No.1. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>114.<span style=\"white-space:pre\">	</span>Accordingly issue No.(iii) is answered in the affirmative.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>115.<span style=\"white-space:pre\">	</span>Issue No.(iv) is taken up for consideration and the issue framed is as follows:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv) WHETHER ALL ALLEGATIONS REGARDING CORRUPT PRACTICE RELATE TO A PERIOD SUBSEQUENT TO THE NOMINATION? IF NOT, WHETHER THE OTHER ALLEGATIONS CAN BE TAKEN NOTE OF ?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>118.<span style=\"white-space:pre\">	</span>In the discussion supra, it has been pointed out that Ex.P.80 is the Medi Assist Policy taken out prior to the cut-off date. The distribution of Medi Assist cards was resorted to after the relevant date by persons on behalf of respondent No.1 with consent and with enticement to vote for him are stand alone corrupt practice committed after the relevant date. Meanwhile, a day before the polling date, i.e. on 11.05.2015, the vehicle belonging to Sri Palanethraiah was intercepted and cash and Medi Assist cards were seized amongst other things.   Crime No.0073/2018 came to be filed and Palanethraiah pleaded guilty for the offence under Section 171E of IPC. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>119.<span style=\"white-space:pre\">	</span>The taking out of the Medi Assist Policy at Ex.P80 prior to the nomination coupled with the incidents of distribution form a chain of events demonstrating a pattern of distribution. Except for the above allegations referred to, there are no other allegations that can be taken note of. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>120.<span style=\"white-space:pre\">	</span>According to the discussion made above, some of the incidents are prior and the remaining incidents of corrupt practice are subsequent to the date of nomination in terms of the above discussion.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>121.<span style=\"white-space:pre\">	</span>Issue No.(vii) is taken up for consideration and the issue framed is as follows:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>“(vii) WHETHER THE PETITIONER IS ENTITLED TO BE DECLARED AS ELECTED IN PLACE OF THE FIRST RESPONDENT IN TERMS OF SECTION101 OF R.P. ACT AS A CONSEQUENTIAL RELIEF IF THE ELECTION OF THE RETURNED CANDIDATE IS SET ASIDE ?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>123.<span style=\"white-space:pre\">	</span>The question is as to whether on setting aside the election of respondent No.1 on the ground of having committed a corrupt practice, whether the petitioner who had secured next highest number of votes is to be declared elected?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>126.<span style=\"white-space:pre\">	</span>It is clear that it cannot be demonstrated that voters have voted for disqualified candidate knowing he was disqualified, in which event, the votes of the returned candidate whose election is set aside would be treated to be thrown away votes. Further, in the event there were candidates other than the returned candidate in the fray, it cannot be second guessed that votes of returned candidate would have gone only to the candidate having obtained the second highest votes. Accordingly, in light of the law laid down by the Apex Court, the question of declaring the petitioner as returned candidate when there were multiple contestants does not arise. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>127.<span style=\"white-space:pre\">	</span>Accordingly, the Issue No.(vii) is answered in the negative.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>PART - F 128.<span style=\"white-space:pre\">	</span>Issue No.(i) is taken up for consideration.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Issue No.(i) which is framed is as follows:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)    WHETHER THE PETITIONER HAS COMPLIED WITH ALL THE REQUIREMENTS OF SECTION 83 OF THE REPRESENTATION OF PEOPLE ACT, 1950 (R.P.ACT FOR BREVITY)?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>134.<span style=\"white-space:pre\">	</span>The requirements under Section 83 of the R.P. Act in the present petition has been considered while passing orders on the interlocutory applications, viz., I.A.Nos.1/2018 and 2/2018 in detail and accordingly, Issue No.(i) is answered in the affirmative in terms of the order passed dated 06.12.2019 disposing off the interlocutory applications. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>135.<span style=\"white-space:pre\">	</span>Accordingly, to avoid repetition, the order on the above said interlocutory applications in its entirety is to be read as an answer to the present issue raised. An attempt to summarize the said order and pass fresh order would be wholly unnecessary. Any attempt to summarize would also be inadequate insofar as some of the points contained in the order may be left out and accordingly, the said attempt is not being made.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>137.<span style=\"white-space:pre\">	</span>Insofar as the mandate of Section 99 of the R.P. Act which prohibits the naming of a person who has been proved at the trial to have been guilty of corrupt practice, the requirement under law is that a person who is not a party to the petition shall not be named unless he has been given notice to appear and show cause why he should be so named.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>144.<span style=\"white-space:pre\">	</span>Insofar as the common contention relating to handing over of Medi Assist cards by the Noticees as is alleged by the witnesses, it is specifically asserted that while handing over Medi Assist cards, there was request to the recipients of the bonds to vote for respondent No.1. The very act of handing over the Medi Assist cards which could be invoked to claim reimbursement of medical expenses and could be construed to be a gift/offer with the object of directly or indirectly inducing the elector to vote; or could be construed to be a gratification to induce the elector to vote. Accordingly, the same would constitute \'bribery\' in terms of Section 123 of the R.P. Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>153.<span style=\"white-space:pre\">	</span>After having recorded the findings on the issues, it is clear that case is made out for declaring the election of respondent No.1 as void in terms of Section 100(1)(b) of R.P.Act.   No grounds are however made out for declaring the petitioner to be elected. Further, as discussed, no grounds have been made out in terms of Section 100(2) of the R.P. Act so as to refrain from declaring the election void, despite respondent No.1 being guilty of commission of corrupt practice by virtue of acts done, found to be done with his consent.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Order</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> (a)<span style=\"white-space:pre\">	</span>The election of the returned candidate Sri D.C. Gowrishankaraswamy, Member of Legislative Assembly, No.133 - Tumkur Rural Assembly Constituency having been declared elected as per Form-21C dated 15.05.2018 is hereby declared to be void. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(b)<span style=\"white-space:pre\">	</span>The following persons are named in terms of Section 99(1)(a)(ii) of the R.P. Act for having committed corrupt practice at the election, viz., Sri Palanethraiah. G, Sri Arehalli Manjunath, Sri Krishnegowda, Smt.Renukamma and Smt.Sunanda (Noticees);</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> (c)<span style=\"white-space:pre\">	</span>The Registrar to comply with the mandate under Rule 19 of the Election Petitions Procedure Rules, Karnataka. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Accordingly, the Election Petition is allowed in part.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0db00c57c995c69f6db156b75bc867ba.JPG', 'fc80ca61e533d0c14a9ebb3924c89bf7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-06', 1, '', '', '2023-04-05 14:38:43', '2023-04-06 07:55:01');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2871, 'Uyv3EtyG6nQ9NXYvYpnhgZPiL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Repair work of the building demolished for road widening, to make it usable, does not amount to re-construction. No action can be initiated under the Karnataka Municipal Corporations Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ramamurthy N Vs BBMP and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 22305 of 2016 decided on 24 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The petitioner claims to be owner of land covered under site No.3, in old survey No.140 of Nagavara village, a portion of the said land was proposed to be acquired by the Bruhat Bengaluru Mahanagara Palike [BBMP] for the purpose of widening the existing Tannery road to 24 mtr width. It is in that background, a portion of the property measuring 8 mtr x 30 ft was given up in favour of the BBMP for widening. Thereafter the petitioner is stated to have demolished the said portion and plastered the remaining portion installing a rolling shutter.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 3.<span style=\"white-space: pre;\">	</span>The BBMP, on a complaint filed by the brother of the petitioner viz., respondent No.4, issued a notice under Section 321(1) of the Municipal Corporation Act [‘Act’ for short] contending that the petitioner has altered the premises without obtaining plan sanction which was followed by 321(3) confirmatory order which was challenged by the petitioner before the Karnataka Appellate Tribunal (KAT) in Appeal No.226/2011 which came to be dismissed on 20.02.2016. Aggrieved by the same, the petitioner is before this Court challenging the order of the KAT, as also 321(1) and 321(3) notice issued by the Corporation.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>Section 321 of the Act provides for the Corporation to take action in the event of there being any demolition, alteration of building or well which is commenced unlawfully and or carried out and completed without permission. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>What is required to be seen in the present case is, whether there is any alteration. Since admittedly there is no construction which has been carried out by the petitioner but only an alteration in terms of repairing the existing building, post demolition, on account of widening of the road. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>Section 320 deals with the application of the Act relating to alterations and additions. The proviso to Section 320 provides that wherever works are carried out for repair which do not affect the position or dimensions of a building or hut or any room in a building therein shall not be deemed an alteration or addition for the purpose of said section. When proviso to Section 320 is taken into account, a mere repair work which does not affect the position or dimension of the building cannot be said to be an alteration. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>Admittedly, what has been carried out by the petitioner is demolition of a portion of the building on account of widening of the road and thereafter repair works of the demolished portion to make it usable. There is no particular allegation has been made against the petitioner for having constructed anything more than what was available and or altering the dimension of the building. Therefore, in my considered opinion, the demolition work which was carried out for the purpose of making the building habitable and usable cannot be said to be an alteration which would come within the purview of Section 321 of the Act, but would come under the proviso to Section 320 of the Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 13.<span style=\"white-space:pre\">	</span>In view thereof, the Corporation could not have exercised powers under Section 321 of the Act, more so, on the basis of a complaint filed by the brother of the petitioner with whom there are certain disputes pending. The said complaint is only to put the State machinery in action to resolve the dispute between the petitioner and respondent No.4. It would be well advised for the Corporation to be careful in these situations and take necessary action in accordance with law and not to be used as a tool by a private party to settle private scores. Though this Court could have imposed cost on respondent No.4, it refrains from doing so.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> i.<span style=\"white-space:pre\">	</span>The writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5a2caecd736de234264770462f0fcafa.JPG', '1bf0741382894c00fa9acc6e1dca9ece.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-07', 1, '', '', '2023-04-05 14:57:08', '2023-04-07 09:46:51'),
(2872, 'BscaGpnHiOByhvRKT2s8YbHy0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Limitation for suit for comprehensive relief of declaration and possession is 12 years under Article 65 and not 3 years under Article 58 of the Limitation Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K.N. Munivenkatappa Vs Krishnappa.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 172 of 2020 decided on 16 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of declaration and permanent injunction is that the he is the absolute owner of the suit schedule property under the gift deed dated 29.01.1996 which was executed by Thimmappa, son of late Nyathappa and the said Thimmappa has delivered possession to the plaintiff on the same day.<span style=\"white-space: pre;\">	</span>Hence, after receiving the delivery of possession on 29.01.1996, the plaintiff and Thimmappa has been in peaceful possession and enjoyment over the suit schedule property. The suit schedule property is a dry land situated at Kundarasanahalli Village, Kamasamudram Hobli, Bangarpet Taluk bearing Sy.No.10/1, measuring 2 acres and 3 guntas, including 6 guntas phut karab which is morefully described in the schedule. It is contended that, on the basis of the said registered gift deed, the plaintiff has been growing crops in the suit schedule property such as Ragi, Hurali etc. All the revenue records are standing in the name of plaintiff on the basis of alleged gift deed. Hence, the plaintiff has been in peaceful possession and enjoyment of the suit schedule property and he has been paying tax to the Government and hence, the plaintiff is the absolute owner of the suit schedule property and he being an illiterate person, has filed the suit against the defendant in O.S.No.36/2004 before the Civil Judge (Junior Division), KGF for the relief of permanent injunction. After completion of full-fledged trial, suit is dismissed against the plaintiff and thereafter, the plaintiff has preferred an appeal before the Senior Civil Judge, KGF in R.A.No.3/2007.   During the pendency of the appeal, the plaintiff has filed an application praying the Court to permit him to file a fresh suit on the same cause of action against the defendant due to technical point. To avoid the multiplicity of proceedings, the Senior Civil Judge, KGF has granted permission to the plaintiff to file a fresh suit against the defendant on 14.06.2010. It is contended that the defendant without having any manner of right, interfering with the plaintiff’s peaceful possession over the suit schedule property and the defendant by fabricating and forging the sale agreement, is claiming his title along with possession of suit schedule property, though there is no right and possession by the defendant. Hence, filed the suit seeking the relief of declaration and possession.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space:pre\">	</span>Having heard the respective learned counsel and on perusal of the material available on record and also considering the principles laid down in the judgments referred supra by both the learned counsel and also the grounds urged in the second appeal, the following substantial questions of law arise for the consideration of this Court:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space:pre\">	</span>Whether both the Courts have committed an error in invoking Article 65 of the Limitation Act instead of Article 58 of the Limitation Act? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>Whether both the Courts have committed an error in granting the relief of declaration and possession against the material on record ignoring both oral and documentary evidence placed on record and such finding amounts to perversity?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>25.<span style=\"white-space:pre\">	</span>Having considered the pleadings of the parties, it is not in dispute that the property originally belongs to Muniyamma W/o Nyathappa and she had purchased the same vide sale deed dated 11.06.1943. There is no dispute that the property belongs to Muniyamma and she passed away leaving behind two sons i.e., Venkatappa and Thimmappa. The plaintiff seeks the relief of declaration and possession based on the gift deed dated 29.01.1996 executed by Thimmappa. The defendant is claiming right in respect of the suit schedule properties based on the sale agreement dated 11.12.1991, which was executed by the first son of Muniyamma i.e., Venkatappa. It is also not in dispute that earlier the plaintiff had filed a suit in O.S.No.46/1999 which is re-numbered as O.S.No.36/2004, wherein he has claimed the relief of permanent injunction and the same was dismissed and no relief of possession was claimed in the earlier suit. It is also not in dispute that permission was sought to file a fresh suit in R.A. and permission was granted to file a fresh suit and accordingly within four months of the permission, suit is filed for the relief of declaration and possession. Both the Courts have given the finding that Article 65 applies and not Article 58, as contended by the learned counsel for the appellant.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>31.<span style=\"white-space:pre\">	</span>This Court would like to refer to Article 58 of the Limitation Act i.e., suits relating to declarations Part III. To obtain any other declaration time is mentioned as three years when the right to sue first accrues. Article 65 with regard to Part V for possession of immovable property or any interest therein based on title, the period of limitation is 12 years when the possession of the defendant becomes adverse to the plaintiff. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>32.<span style=\"white-space:pre\">	</span>Having considered the material available on record, the defendant claims the possession based on the sale agreement dated 11.12.1991, and when the suit is filed by the plaintiff for bare injunction in the earlier suit in the year 1999, he comes up with a plea that he has been in possession consequent upon the sale agreement executed by the brother of the executant of the gift deed.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>33.<span style=\"white-space:pre\">	</span>The defendant claims the possession based on the sale agreement dated 11.12.1991 and when the suit was filed by the plaintiff for the relief of bare injunction, in the earlier suit in the year 1999, he come up with the plea that he has been in possession consequent upon the sale agreement executed by the brother of the executant of the gift deed and written statement was filed on 27.10.1999 and based on the material available on record, the Court has given the finding that the plaintiff has not been in possession of the suit schedule property and hence, he has sought for the relief of declaration and consequential relief of possession in alternative after obtaining the permission from the Appellate Court in regular appeal.  However, it is clear that in the earlier suit itself the Court comes to the conclusion that he has not been in possession hence, it is clear that the suit is filed for the relief of declaration and possession. It is important to note that when the plaintiff stated that gift deed was executed by the son of Muniaymma who is the absolute owner of the property and claims that he became the absolute owner of the property based on the said gift deed.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>35.<span style=\"white-space:pre\">	</span>The Apex Court in the case of PRAVIN JETHALAL KAMDAR referred supra held that Article 58 of the Limitation Act prescribes limitation of three years from the date when the right, to sue first accrues to obtain a declaration. Under Article 65, the period of limitation prescribed for filing of a suit for possession of immovable property or any interest therein based on the title is 12 years from the date when possession of the defendant becomes adverse to the plaintiff.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 36.<span style=\"white-space:pre\">	</span>In the case on hand, the plaintiff is seeking the relief of declaration based on the gift deed executed by Thimmappa who is the son of Muniyamma. The defendant claims the right based on the agreement of sale. As on the date of execution of agreement of sale, the mother was not alive and it is not in dispute that the property belongs to Muniyamma since she has purchased the property in the year 1943 and she passed away leaving behind two sons that is Venkatappa and Thimmappa. On perusal of sale agreement, it discloses that an amount of Rs.12,000/- was received and balance was payable within a period of two years but the additional payment of Rs.3,000/- also paid in view of the endorsement found in the sale agreement. But the said sale agreement was not enforced before the Court, thus, the sale agreement will not create any title in favour of the defendant. Admittedly, the defendant categorically admitted that he has not enforced the sale agreement. It is also emerged in the evidence that as on the date of entering into the sale agreement, the executant of the sale agreement is not the absolute owner of the suit property. Apart from that, the suit property was also standing in the name of his brother Thimmappa and all the revenue records are also standing in the name of Thimmappa, but Thimmappa is not a party to the said sale agreement and subsequent to the execution of the alleged sale agreement, the said Venkatappa also passed away. When such being the case and when the possession is with the defendant, the Trial Court also comes to the conclusion that possession is with the defendant and when the relief is sought for the declaration based on the title of gift deed and possession is also based on the title. Thus, both the Courts have not committed any error in invoking Article 65 hence, the very contention of the counsel for the appellant that both the Courts ought to have invoked Article 58 cannot be accepted and the same is not for only the simplicit of the declaration and it is for the relief of comprehensive relief of declaration and possession. The judgments relied upon by the respondent’s counsel are applicable to the case on hand and not the judgments relied upon by the appellant since the suit is filed for the relief of declaration and possession. Hence, I do not find any force in the contention of the appellant counsel that Article 58 applies and not Article 65 and hence the first substantial question of law is answered accordingly.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>37.<span style=\"white-space:pre\">	</span>The other contention of the counsel for the appellant is that both the Courts have committed an error when the defendant pleaded specifically that he has been in possession of the suit schedule property based on the sale agreement and ought not to have granted the relief of declaration as well as possession and the very approach of both the Courts is erroneous. No doubt, the defendant has pleaded that the possession is based on the agreement of sale and he has not enforced the said sale agreement and no title has been confirmed in favour of the defendant based on the said sale agreement and he also not enforced the same before the Court of law and also not established before the Court since the witness who has been examined before the Trial Court also says that he was not aware of the said transaction and in his presence, the said transaction was not taken place. When such material is available before the Court and also in the cross- examination, DW1 categorically admitted with regard to the execution of the gift deed by the other brother of the vendor of the defendant that gift deed has been executed and this material is also taken note of by both the Courts. There is no dispute with regard to the fact that the suit property was originally belonged to Muniyamma and also categorically admitted that at no point of time, the revenue documents are standing in the name of the said Venkatappa and he categorically admits that all the documents are standing in the name of Muniyamma and her son Thimmappa after the death of the mother and also he is not aware of having paid the tax by the said Venkatappa and also admits that katha was transferred in the name of the plaintiff in the year 1996, but he also claims that he has questioned the same and the Deputy Commissioner directed him to approach the Civil Court. It is also elicited in the cross-examination that the said Thimmappa executed the gift deed in favour of Krishnappa, i.e., plaintiff and subsequently the plaintiff got transferred the katha in his favour. He also admits that when he made the payment of Rs.12,000/- and Rs.3,000/- the  sale  deed was not executed since no documents were standing in the name of his vendor and also admits that he has not given any notice to his vendor and he has also not given any notice to the said Thimmappa after the death of his vendor to come and execute the sale deed and also he has not filed any suit. All these materials are considered by both the Courts and merely because he is having the sale agreement, same does not convey any title or any right in respect of the suit schedule property and the plaintiff has claimed the relief of declaration based on the gift deed and gift deed was executed by Thimmappa in the year 1996 and he was only the sole surviving son as on the date of the execution of the gift deed in favour of the plaintiff hence, I do not find any perversity in the findings of both the Courts and both the Courts have given anxious consideration to the material available on record and given concurrent finding. Unless perversity is found, the question of invoking Section 100 of CPC does not arise. Hence, I answer second substantial question of law in the negative.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The appeal is dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a00e4a88bbc2fd0f5e2f5f092d0a8b6c.JPG', 'd0d590c482785540e8b03d4eb0d4fd69.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-07', 1, '', '', '2023-04-05 15:13:58', '2023-04-07 03:21:43'),
(2873, 'NTAWFiMBqmhSa1rvzC95Rw7Xi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Change of land use is not required under the KTCP Act to run educational institution once the land is converted under the KLR Act for non-agricultural/educational purposes. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sapthagiri Educational and Charitable Trust Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 32489 of 2011 decided on 2 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The petitioner claims to be a Charitable Trust providing education to students at affordable cost without discrimination of caste or religion. The petitioner set up an Academy to award Diploma in Nautical Sciences. For the purpose of construction of the same, the petitioner had purchased 7 acres 9 guntas of land at Guddanahalli, Anekal taluk carved from out of Sy.No.62 and 63 which had been converted for non-agricultural educational purpose on 28.4.2010 and 12.3.2010 respectively.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 3.<span style=\"white-space: pre;\">	</span>When the petitioner applied to the 3rd respondent for grant of plan sanction on 20.12.2010, 3rd Respondent vide its letter dated 15.02.2011 called upon the petitioner to make payment of Rs.22,00,000/- towards development charges, supervisory charges to consider the development plan. Apart therefrom ‘Lake Rejuvenation charges’ was also called upon to be paid which was challenged by the petitioner in W.P. No.25224-25227/2011, which petition came to be dismissed. Thereafter the petitioner vide letter dated 6.4.2010 had informed 3rd respondent that establishment of the educational institution was for carrying out charitable education activities and was not to make any profits and therefore, could not be called upon to make payments of the demands made vide demand letter dated 15.2.2011. The same not being accepted and the development plan not having been sanctioned, the petitioner is before this Court seeking for the aforesaid reliefs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>What was occurred in the year 2010 is the conversion of 3 acres 2 guntas from agricultural to non- agricultural education purposes. Another 4 acres 7 guntas is also converted from agricultural to non agricultural education purposes on the same day. Thus, the entire 7 acre 9 guntas had been converted from agricultural to non-agricultural education purposes under Section 95 of the Karnataka Land Revenue Act. The conversion under Section 95 is dealienation of land which is reserved for agricultural purpose to non-agricultural purposes and in this case, for educational purposes. The said conversion is completely different from change of land use as contemplated under the Karnataka Town and Country Planning Act, 1961, more so in terms of proviso to Section 14, wherein it is made clear that where change of land user under Section 14 is sought for or diversion of agricultural to non-agricultural purposes is sought for, it shall not be so permitted unless permission is obtained under the Karnataka Land Revenue  Act for such diversion. Therefore, conversion of land is a condition precedent for change of land use under Section 14 of the Karnataka Land Revenue Act. In terms of proviso to Subsection (2) to Section 95, application made for conversion of land from agriculture to some other purposes shall not be refused if the diversion is in accordance with the purpose of land use specified in Master plan and is deemed to have been granted if conversion fee is paid. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>In the present case, the land was admittedly agricultural in nature, both under the Zonal classification, as also under the revenue classification. It is for that reason that on 28.04.2010 the petitioner obtained change of land use from agricultural to non- agricultural-education purposes. No change of land use was required to be obtained in respect of the said land on account of the fact that for the purpose of use for which the land is put to is educational purpose which is covered under the zonal classification applicable to the Anekal Planning Authority. Thus, once the land is converted from agricultural to non- agricultural-education purposes, the same could be put to use for educational purposes without seeking for change of land use. However, in terms of Rule 37- A if an application is made for development of land or building, necessary fees are required to be paid by such an applicant.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>The application having been filed in the year 2010, as per Rule 37-A then applicable, a sum of Rs.4/- per sq.mtr of floor area of all the floors of the building sanctioned ought to be paid. However, in the year 2020, there is a drastic amendment which has been made to the said provision increasing the amounts, but at the same time providing exemption to institutions involved in charitable, religious and philanthropic purposes of non profit nature, such as old age home, child care centres, as the case may be and certified by Deputy Commissioner of concerned districts to be of non-profit nature. The petitioner, admittedly is a charitable trust which is a non-profit institution. Thus, in my considered opinion, the same would come under Note-1 to Table-II of Rule 37-A as it now stands. The provision as it now stands is required to be considered for the reason of any application to be processed by 3rd respondent as on today. Since the application of the petitioner will also to be processed as on today, the benefit if any available should be made available to a citizen who has made an application. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>Taking into consideration Note-1 to Table-2, I am of the opinion that the petitioner would be exempted from making payment of any amount subject to production of a certificate issued by the Deputy Commissioner of concerned district in which the petitioner is situate certifying the petitioner’s activities are of not profit nature. Once the same is submitted, 3rd respondent would have to consider the same in terms of Note-1 to Table-2. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>The contention of 3rd respondent is that though there may not be change of land user as such granted, but the land is put to use for educational purposes, there would be a change in the usage, therefore, levy of fee under Rule 37-A(1a) to Table-I is proper and correct. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>The said contention, in my considered opinion, cannot be accepted in this case for the simple reason that the usage for educational purposes put to by the petitioner of its land is permitted in agricultural zone also requiring no change in land use, as such, Table-1 to Rule 37-A would have no role to play. It is only Table-2 under Rule 37-A (1b) which deals with development of building which would be applicable under which the amount mentioned is Rs.10/-.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space:pre\">	</span>The petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'cf9e6e1d5fe7c93c3d38ec5a16a022c7.JPG', '760a00332d116173adf0327427f3c85d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-06', 1, '', '', '2023-04-05 15:26:12', '2023-04-06 03:21:16');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2874, 'TLZ2jx5cCSTOCqatD0opBELOC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Grant of Indian citizenship under the Citizenship Act, 1955. Mere surrender of foreign passport does not amount to renunciation of foreign citizenship. Karnataka High Court rejects the plea of minor children of Indian citizen holding Pakistan citizenship.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Aisha Malik and others Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 14333 of 2022 decided on 28 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioners are before this Court seeking a direction by issuance of a writ in the nature of mandamus to consider their representation dated 05-05-2022 filed through their mother, natural guardian for issuance of a passport in their favour and also grant them citizenship in terms of law.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>Brief facts that lead the petitioners to this Court in the subject petition, as borne out from the pleadings, are as follows:- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioners are the children of one Smt. Ameena Rahil and Sri. Assad Malik, mother and father, who will be hereinafter referred to as such. The mother of the petitioners is an Indian citizen. The father of the petitioners is a Pakistan national. Marriage between the two would take place on 11-04-2002 at Dubai, United Arab Emirates (UAE). The petitioners were born from the wedlock at the UAE and are currently aged 17 and 14 years respectively. Long after the marriage and birth of the petitioners herein there were non-compatible issues between the father and the mother and accordingly, they approached the jurisdictional personal Court at Dubai. The Court on considering the application in terms of personal laws applicable to wife and the husband dissolves the marriage on 07-09-2014. After the dissolution of marriage, the mother of the petitioners was conferred with permanent and sole custody of the minor children i.e., the petitioners herein. The husband had himself relinquished all his claims over the custody of his children and had filed such an agreement before the concerned Court at Dubai. Therefore, the petitioners are in the custody of the mother is the averment which is in tune with the records produced.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>The petitioners then approached the Indian Consulate at Dubai and submitted a representation in the prescribed form for conferring Indian citizenship and the Consulate appears to have directed them to surrender the Pakistan passport which the petitioners had in their favour being the children of Sri Assad Malik, the father who was a Pakistan national. The petitioners then surrendered the Pakistan passport with the Indian Consulate in Dubai. It is, therefore, Islamic Republic of Pakistan Consulate issued a no objection to correspond with the Indian Consulate at UAE and completion of formalities. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>When the petitioners wanted to come to India, they had no Indian passport. At that point in time, the Indian Consulate at Dubai on a representation made by the petitioners had given temporary Indian passport on 31-05-2021 with an endorsement that citizenship status of the petitioners is pending with the Ministry of Home Affairs and passport is issued on humanitarian grounds. The petitioners, on the strength of the temporary passport, travelled to India and are now staying in India with their mother. That passport having expired, the petitioners submitted representations to the concerned and have been so representing for the last one year. Those representations having gone unheeded, the petitioners are driven to this Court in the subject petition, seeking a direction by issuance of a writ in the nature of mandamus for consideration of their cases for conferment of citizenship right as sought in the representations.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>The afore-narrated facts, though are not in dispute, may require a little elaboration. The story of the issue begins on 11-04-2002, when the mother of the petitioners who at that point in time was an Indian national i.e., holding Indian citizenship, gets married to one Sri Ashrad Malik holding Pakistani citizenship. From their wedlock on 15-10-2004 the 1st petitioner is born and on 12-01-2008 the 2nd petitioner is born. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>The entire family right from the date of marriage as aforesaid, was residing in UAE/Dubai. The marriage also had taken place in Dubai. After about 12 years of their marriage, disputes arose between the couple and accordingly they applied for a divorce before the Court of competent jurisdiction in UAE. The concerned Court in terms of the order dated 07-09-2014 dissolves the marriage between the couple. While doing so, the custody of the children was granted to the mother. The mother then continues to stay in UAE. It is the averment in the petition that it became difficult for her to continue to stay in Dubai and, therefore, wanted to come back to India as she was an Indian citizen. But, the children did not have an Indian passport. The mother represents before the Authorities seeking grant of an Indian passport.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>The submission of the learned counsel for the petitioners that the children are entitled to the Indian citizenship cannot at this juncture be accepted as the father of the children was a citizen of Pakistan, a Pakistani national and the mother, an Indian citizen an Indian national both of whom did not reside in India but were residing in Dubai. After the divorce was granted by the Dubai Court, custody of the petitioners was handed over to the mother. By then, the children had been declared to be citizens of Pakistan by virtue of the father being a Pakistani national. In fact, children held Pakistan citizenship and Pakistan passports.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Section 4 of the Act prohibits dual citizenship, as, if a citizen who is beyond 18 years or a minor cannot be a citizen of this Country, as well as of any other country. Section 5(1)(d) permits citizenship to those children whose parents are citizens by India origin, notwithstanding the fact that they are residing outside India. Therefore, to claim citizenship under Section 5(1)(d) of the Act, both parents of those children who seek to claim, must be Indian citizens.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The Consulate General of India, Dubai communicates to the Consulate General of the Islamic Republic of Pakistan, Dubai bringing to the notice of the Pakistan Authorities that they have been approached by the mother of the children, an Indian national holding an Indian passport who is married to Ashrad Malik, the Pakistani national holding Pakistan passport for grant of Indian nationality for her children. It has been indicated therein that on renunciation of Pakistan nationality and surrendering passport, they may apply for registration of birth and passport at the Consulate General of India, Dubai. The Consulate further observes that opportunity to renew the passport in the Consulate General of the Islamic Republic of Pakistan, Dubai was also open. It now becomes germane to notice the Pakistan Citizenship Act, 1951.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Section 14-A of the Pakistan Citizenship Act, 1951, deals with renouncement of citizenship of Pakistan. A child can renounce the citizenship of Pakistan or regain within one year after completion of 21 years of age</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>Admittedly, both the children who have now knocked at the doors of this Court, even as on date are citizens of Pakistan, as their citizenship has not been renounced in terms law of the Islamic Republic of Pakistan. Unless they renounce the citizenship of Pakistan, they cannot become citizens of this Country. It is not a case where these children are without citizenship or landless or Stateless. Even as on date they are citizens of the Islamic Republic of Pakistan. It is the laws of Pakistan that do not permit them to renounce citizenship of Pakistan. The Consulate General of the Islamic Republic of Pakistan at Dubai is categorical in his reply that a minor child/children cannot renounce the citizenship of Pakistan till they attain the age of 21 years. Unless, they renounce the citizenship of Pakistan, the Citizenship Act, 1955 does not grant citizenship to those persons who are already citizens of another country and who also hold passports of any other country, be it a major or a minor. If laws of Pakistan are inflexible to a situation of this kind; so are the laws of this nation, which cannot be made flexible in the peculiar facts of this case. The children who are now seeking Indian citizenship can seek only after they renounce the citizenship of Pakistan as admittedly, the biological father is a citizen of Pakistan. The children are declared to be citizens of Pakistan. The mother may be an Indian citizen, unless violence is done to the language of the Citizenship Act, 1955, the children cannot be granted citizenship as they are already citizens of Pakistan and this Court by its order would not indulge in any such violence to the language of the mandate of the statute.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 14.<span style=\"white-space:pre\">	</span>Section 5(1)(d) of the Act mandates that both the parents are required to be Indian citizens for the purpose of grant of citizenship to the minors and, therefore, it is clearly indicated in the order that all the documents which would be necessary for grant of citizenship should be produced before the Authorities. If the law elsewhere i.e., Pakistan does not permit renunciation of citizenship by minors up to a certain age, the law of this nation would not permit grant of citizenship to such persons. Therefore, it is for the mother of the petitioners to produce all the documents necessary before the concerned Authorities in India for an Indian citizenship to be accorded in terms of the Act. To iterate, the children as on today are not Stateless. They are citizens of Pakistan. They have only surrendered the passport but they have not renounced citizenship of Pakistan, mere surrender of the passport does not amount to renunciation of citizenship. Unless such renunciation comes about, no directions could be issued to the Ministry of External Affairs, to consider the case of the mother for grant of citizenship to the children. Therefore, it is for the mother, to place all those materials that are sought for by the Authorities, to consider grant of such citizenship in favour of the petitioners. No mandamus would lie in the peculiar facts of this case.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>a.<span style=\"white-space:pre\">	</span>The petition stands rejected.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1db15988933ca1cb5cea474c8e083d35.jpeg', '18506c68204140931b26b569017f01e2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-08', 1, '', '', '2023-04-06 13:24:39', '2023-04-08 06:56:48'),
(2875, 'Kd1u0me8IMgfvfela3JZl1tKS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for specific performance. When suit is filed after non-alienation period is over, the suit cannot be said to be barred by time especially when entire sale consideration is paid under the agreement of sale. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Thammannagowda Vs Ramegowda.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 1082 of 2022 decided on 27 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>The plaintiff in O.S.No.160/2012 in the plaint has contended that the suit schedule property bearing Sy.Nos.94 and 95 measuring 2 acres 9 guntas situated at Kirugadalu Village was granted to the plaintiff on 08.11.1978. As per the grant, khatha has been changed in the name of the plaintiff and from the date of grant, the plaintiff is in possession and enjoyment of the suit schedule property. The defendant has created some documents and trying to interfere with the plaintiff’s possession and also tried to destroy the crops standing in the schedule property and hence without any alternative, the plaintiff was constrained to file the suit for the relief of permanent injunction. In pursuance of the suit summons, the defendant appeared and filed the written statement contending that he had entered into the agreement of sale with the plaintiff on 03.07.1987. On the date of agreement itself, the possession of the suit schedule properties was delivered to the defendant and thereafter the defendant had handed over the possession to his brother and his brother is in possession of the suit schedule property. Even though the plaintiff is not in possession of the suit schedule property, he has filed the frivolous suit only to dispossess the defendant from the schedule property and to harass the defendant.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>Based on the pleadings of the parties, the Trial Court framed the issues in a suit for bare injunction. The plaintiff in order to prove his case examined four witnesses as P.W.1 to P.W.4 and got marked the documents at Exs.P.1 to 21. The defendant examined one witness as D.W.1 and produced 51 documents as Exs.D.1 to 51 and also examined three witnesses as D.W.2 to D.W.4. The Trial Court having considered both oral and documentary evidence placed on record, decreed the suit against the defendant and hence the defendant filed an appeal in R.A.No.26/2018, wherein it is contended that the possession is with the defendant consequent upon the sale agreement and the Trial Court failed to appreciate the material on record. The First Appellate Court on considering the grounds urged in the appeal memo, formulated the points whether the plaintiff proves that he is in possession and enjoyment of the suit properties as on the date of the suit and the alleged interference by the defendant and whether the plaintiff is entitled for the relief of permanent injunction. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record, dismissed the appeal and hence R.S.A.No.1082/2022 is filed before this Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>Having considered the grounds urged in both the appeals, the substantial questions of law which arises for consideration of this Court are:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(1)<span style=\"white-space:pre\">	</span>Whether both the Courts committed an error in ignoring the material on record and the finding amounts to perversity? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(2)<span style=\"white-space:pre\">	</span>Whether the suit is barred by limitation for the relief of specific performance as contended by the defendant and whether Article 54 of the Limitation Act applies? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(3)<span style=\"white-space:pre\">	</span>Whether both the Courts committed an error in not grating the relief of specific performance as sought in O.S.No.191/2012? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(4)<span style=\"white-space:pre\">	</span>Whether both the Courts have committed an error in granting the relief of injunction in favour of the plaintiff in O.S.No.160/2012? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(5)<span style=\"white-space:pre\">	</span>What order?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Point No.(2) </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space:pre\">	</span>Having considered the material on record, in a suit for specific performance, the plaintiff has pleaded that there was a sale agreement dated 03.12.1987 and sale consideration was Rs.7,000/- and entire sale consideration was paid and there was a non-alienation clause when the property was granted in favour of the defendant and hence, he had executed the sale agreement as well as power of attorney and also delivered possession in favour of the plaintiff and the defendant did not come forward to execute the sale deed.   Hence, without any other alternative, suit is filed for the relief of specific performance. In pursuance of the suit summons, the defendant appeared and filed the written statement, wherein he denied the very execution of the sale agreement and power of attorney and contended that, no sale consideration was received and the plaintiff has created those documents. However, admitted that there was a non-alienation clause while granting the land for a period of 15 years and the other averments made in the plaint are denied. The Trial Court, while considering the material on record and the pleadings of the parties, framed six issues and appreciated the evidence available on record i.e., the evidence of P.Ws.1 and 2 and D.Ws.1 to 3 and also the documentary evidence. Though the defendant denied the very execution of the sale agreement, in the cross- examination, the defendant categorically admitted that the property was granted by the Government and there is a non-alienation clause and he had not instituted any suit to cancel the agreement but, he admits that the signature found in Ex.P1 belongs to him but, denied the signature found in Ex.P2-general power of attorney. Hence, it is clear that sale agreement was executed by the defendant in favour of the plaintiff on 03.12.1987 and both the Courts failed to take note of the document of Exs.P1 and P2.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space:pre\">	</span>Having considered the contents of the document, it is clear that there was prohibition i.e., non- alienation clause in the grant itself. Hence, sale agreement came into existence and no time is stipulated but, it is only mentioned that, after expiry of the non- alienation period, both the parties shall give notice before one month and execute the sale deed and the said clause is applicable not only to the plaintiff but, also to the defendant. Apart from that, both the Courts lost sight of Clause No.2, wherein it is specifically mentioned that power of attorney will be valid till execution of the sale deed and Clause No.4 is also very clear that sale agreement is valid till execution of the sale deed and both the Courts failed to take note of the documents and the Clauses mentioned in toto and the First Appellate Court committed an error in only relying upon Clause No.3 and failed to take note of other clauses i.e., Clause Nos.2 and 4.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>27.<span style=\"white-space:pre\">	</span>In the case on hand, when there was a non- alienation clause and entire sale consideration is paid, the question of readiness and willingness to pay the balance consideration money is not of much importance in view of the admitted factual aspects of the judgment reported in ILR 2003 KAR 3533 and the said judgment aptly applies to the facts of the case on hand and there is no obligation on the part of the plaintiff either by making any payment of balance sale consideration, since already paid the entire sale consideration and possession was also delivered in favour of the plaintiff as on the date of execution of the sale agreement and the recitals in the power of attorney is also very clear that, all powers are given to the agreement-holder even for cultivating the property. The judgment relied upon by the learned counsel for the respondent that is the unreported judgment of this Court in R.S.A.No.6217/2012 is not applicable to the facts of the case on hand having considered the discussions made in Para No.15 of the judgment, wherein there was an endorsement by the plaintiff himself that he consents for defendant to sell plot Nos.198 and 199 which he had intended to purchase. When such materials are available before the Court, the very contention of the learned counsel for the respondent that Article 54 of the Limitation Act applies cannot be accepted and Article 54 of the Limitation Act applies when no time period is fixed in the agreement to have the sale deed and time was already fixed for execution of the document and not performing any part of contractual terms.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>29.<span style=\"white-space:pre\">	</span>I have already pointed out that, there was a reference in the sale agreement with regard to very execution of the general power of attorney. The learned counsel for the appellant also relied upon the judgment of the Allahabad High Court and also the judgment of the Apex Court from Punjab and Haryana High Court with regard to presumption under Section 85 of the Evidence Act for having attested the document.   Hence, I do not find any force in the contention of the learned counsel for the respondent that suit is barred by limitation. Hence, I answer point No.(2) as ‘negative’.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>Point Nos.1, 3 and 4: </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>30.<span style=\"white-space:pre\">	</span>The parties and the issue between the parties are one and the same in the said suits and the appellant- defendant in the original suit filed by the respondent- plaintiff while seeking the relief of permanent injunction set out the defence that there was a sale agreement and possession was also delivered in favour of the agreement-holder. No doubt, in the other suit also, the appellant-plaintiff while seeking the relief of specific performance pleaded the same but, nothing is stated in the suit filed by the respondent/plaintiff in his suit while seeking the relief of permanent injunction with regard to the sale agreement as well as the execution of the general power of attorney.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>31.<span style=\"white-space:pre\">	</span>Having considered the material on record, though the original owner has denied the very execution of the sale agreement, but during the course of cross- examination, he categorically admitted the very execution of the sale agreement and this Court also, taken note of the same while answering point No.2 with regard to the limitation is concerned that both the Courts ought to have taken note of the signatures found in the documents of Exs.P1 and P2 i.e., sale agreement as well as the power of attorney and both the Courts ought to have invoked Section 73 of the Evidence Act to compare the signatures and no doubt, the Court cannot act as an expert, however, can compare the signatures and powers are vested with the Court to compare the same and this Court also comes to the conclusion that both the signatures are one and the same. When such being the case, it is also important to note that, when the original documents are also handed over to the prospective purchaser and those documents are also in the custody of agreement-holder, no explanation is given for the same and it is only stated that originals were lost but, no such pleadings or explanation with regard to the delivery of the original documents in favour of the prospective purchaser or that the original owner lost the same.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>33.<span style=\"white-space:pre\">	</span>It is also not in dispute that original owner also challenged the entries made by the prospective purchaser before the revenue authority contending that transfer of property in the name of prospective purchaser is not in accordance with law and the same is illegal and revenue authority also set aside the same and merely because the entries are found in the name of the original owner, when there was a sale agreement between the parties, the Trial Court also ought not to have granted the relief of permanent injunction in favour of the original owner only on the ground that entries are found and failed to take note of the recitals in Exs.P1 and P2 i.e., sale agreement and general power of attorney and possession was delivered as on the date of the sale agreement itself and original documents were also handed over to the prospective purchaser. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>34.<span style=\"white-space:pre\">	</span>When such being the case, no doubt, while granting the relief of specific performance, the Court has to consider the material on record, particularly readiness and willingness, in the case on hand, the entire sale consideration has been paid and possession was also delivered. When such being the case, the readiness and willingness is nothing but illusory as observed in the judgment referred (supra) by the learned counsel for the appellant and possession was also delivered and there was non-alienation cause for a period of 15 years and the same is also admitted by the defendant in the written statement itself. While executing the sale agreement, specific clause is mentioned that land was granted by the Government and there is a non-alienation clause for 15 years. It is also mentioned that, after expiry of non- alienation period, within one month, both the parties shall give notice to each other and execute the sale deed. But, in the case on hand, immediately after expiry of 15 years of non-alienation period, notice was not given and the Trial Court has discussed in detail with regard to the said fact considering the grant of the year 1978 but, though application was given in the year 1978, the saguvali chit was issued in terms of Ex.P22 in the year 1985 and while issuing the saguvali chit, non-alienation clause was put in the said document and expiry of period of non-alienation clause in 2002 and not as observed by the Trial Court. No doubt, notice was given in the year 2012, no time period was stipulated for enforcement of agreement and the same is for executing the sale deed and there was no refusal of the execution of the sale deed in the meanwhile and no correspondence has also taken place between the parties as mentioned in Clause- 3 of the sale agreement and notice was issued only in 2012 and only when the defendant-original owner tried to change the document in his favour, filed the review appeal before the Assistant Commissioner.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>35.<span style=\"white-space:pre\">	</span>When such being the material on record, these are the factors which ought to have been considered by the Trial Court as well as the First Appellate Court when the relief is sought for the specific performance and the sale agreement was also entered in the year 1987 itself and the plaintiff had not approached the Court since, there was a non-alienation clause in the very grant itself. These are the materials which have not been considered by the Trial Court and also the First Appellate Court and both the Courts lost sight of the same. Hence, I am of the opinion that the Trial Court as well as the First Appellate Court have committed an error in not appreciating the material available on record when the defendant categorically admitted in the cross- examination with regard to the execution of the sale agreement, though he denied that no such sale agreement and power of attorney was executed and signature found in the documents ought to have been compared and the same has not been considered by the Trial Court as well as the First Appellate Court and erroneously doubted the very transaction in not relying upon the document of power of attorney and failed to consider the material on record and the very non- consideration of the material on record amounts to perversity in exercising the discretion and the discretion ought to have been exercised judiciously and not arbitrarily. Therefore, the plaintiff is entitled for the relief of specific performance as sought in the suit in O.S.No.191/2012 and consequently, the prospective purchaser, who is in possession of the property in terms of the sale agreement as well as general power of attorney is entitled for the relief as sought. The suit filed by the original owner for the relief of permanent injunction requires to be interfered with and consequently, the suit filed by the original owner in O.S.No.160/2012 requires to be dismissed and the judgment and decree of the Trial Court passed in O.S.No.191/2012 requires to be set aside. Consequently, the judgment passed in both the appeals in R.A.Nos.26/2018 and 5/2018 requires to be set aside. Accordingly, I answer point Nos.1, 3 and 4 as ‘affirmative’.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Point No.5<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space:pre\">	</span>The appeals are allowed with cost throughout.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv)<span style=\"white-space:pre\">	</span>The defendant in O.S.No.191/2012 is directed to execute the sale deed within a period of two months and if the defendant fails to execute the sale deed within the stipulated period, the appellant-plaintiff is entitled to have the sale deed in accordance with law</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a0a18c75d4ce7cb903f5099c05644982.JPG', '6a4e318c44da918c998a561bd43a4ce8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-08', 1, '', '', '2023-04-06 14:00:12', '2023-04-08 03:20:07');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2876, 'nJaPDrJxKoa32QsiLCDObz9SL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'POCSO Act. Undertaking by the accused that he would marry the victim girl if released on bail cannot be countenanced either to grant bail or to quash the proceedings. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bujji AKA Babu G Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 12080 of 2022 decided on 14 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V Srishananda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Brief facts of the case are as under: A complaint came to be lodged by the second respondent with Bagepalli Police, Chikkaballapura District which was registered in Crime No.179/2022 on 27.04.2022, initially for the offence punishable under Section 363 of Indian Penal Code (for short ‘IPC’). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>Gist of the complaint averments reveal that the complainant belongs to Schedule Caste community and was the resident of 13th ward in Bagepalli Town along with her family members. She has a daughter (victim girl) aged 16 years. On 02.04.2022, the victim girl had been to church and at that juncture, the petitioner kidnapped her. Despite best efforts, the victim girl was not traced and therefore, the complainant approached the jurisdictional police with a missing complaint. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">5.<span style=\"white-space: pre;\">	</span>Police registered a case as aforesaid and investigated the matter. During the course of investigation, the investigating Agency was successful in tracing the victim girl and the accused/petitioner. After recording the statement of the victim girl, charge sheet came to be filed against the petitioner for the offences punishable under Sections 4 and 6 of POCSO Act and also under the provisions of Section 9 and 10 of the Prohibition of Child Marriage Act, 2006. Apart from the offence under Sections 363, 372(2) (n) and Section 344 of IPC.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space: pre;\">	</span>On careful reading of the above provisions, what has been dealt in the above provision is that an act of penetrative sexual assault or aggravated penetrative sexual assault against a child. Child is defined under Section 2(d) of the POCSO Act where under any person below 18 years is a child. In the case on hand, admittedly victim girl is under the age of 18 years. May be in the case on hand, the aggravated penetrative sexual assault may not get attracted prima facie in view of the statement made by the victim girl under Section 164 of Cr.P.C., especially, when the victim girl stated that she had the company of the accused/petitioner happily and she is aged 16 years.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24.<span style=\"white-space:pre\">	</span>Suffice to say in the case on hand, since the victim girl has specifically stated that she had sexual relationship with the petitioner every alternate day so long as in the company of petitioner, would only indicate that there was no resistance on the part of the victim girl in the alleged act and she participated in the act voluntarily. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25.<span style=\"white-space:pre\">	</span>In the light of above factual aspects, when the object of the enactment of POCSO Act to be looked into, it is crystal clear that the Act has been enacted to provide protection of children from the offences of sexual assault, sexual harassment and pornography etc. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26.<span style=\"white-space:pre\">	</span>Whether a child could be a consenting party is a moot question while considering the completion of an offence as is defined under Section 3 of the POCSO Act. On bare reading of the Section 3 of the POCSO Act, as referred to supra, the provision never contemplate anything about the consent inasmuch as the intension of legislature is abundantly clear that a child cannot be a ‘Consenting Party’.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>27.<span style=\"white-space:pre\">	</span>While dealing with a similar situation and what is the effect of a factual aspect where the child is a consenting party and how the act is to be interpretative in such circumstances is no longer res integra.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>28.<span style=\"white-space:pre\">	</span>Hon’ble Apex Court in the case of Independent Thought V. Union of India and Another reported in (2017) 10 SCC 800, while dealing with similar situation has held as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> “46. Section 3 of the POCSO Act defines “penetrative sexual assault”. Clause (n) of Section 5 provides that if a person commits penetrative sexual assault with a child, then that person actually commits aggravated penetrative sexual assault if that person is related to the child, inter alia, through marriage. Therefore, if the husband of a girl child commits penetrative sexual assault on his wife, he actually commits aggravated penetrative sexual assault as defined in Section 5(n) of the POCSO Act which is punishable under Section 6 of the POCSO Act by a term of rigorous imprisonment of not less than ten years and which may extend to imprisonment for life and fine.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>79.1.<span style=\"white-space:pre\">	</span>Firstly, a child is and remains a child regardless of the description or nomenclature given to the child. It is universally accepted in almost all relevant statutes in our country that a child is a person below 18 years of age. Therefore, a child remains a child whether she is described as a street child or a surrendered child or an abandoned child or an adopted child. Similarly, a child remains a child whether she is a married child or an unmarried child or a divorced child or a separated child or a widowed child. At this stage we are reminded of Shakespeare\'s eternal view that a rose by any other name would smell as sweet—so also with the status of a child, despite any prefix. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>79.2.<span style=\"white-space:pre\">	</span>Secondly, the age of consent for sexual intercourse is definitively 18 years and there is no dispute about this. Therefore, under no circumstance can a child below 18 years of age give consent, express or implied, for sexual intercourse. The age of consent has not been specifically reduced by any statute and unless there is such a specific reduction, we must proceed on the basis that the age of consent and willingness to sexual intercourse remains at 18 years of age. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>79.3.<span style=\"white-space:pre\">	</span>Thirdly, Exception 2 to Section 375 IPC creates an artificial distinction between a married girl child and an unmarried girl child with no real rationale and thereby does away with consent for sexual intercourse by a husband with his wife who is a girl child between 15 and 18 years of age. Such an unnecessary and artificial distinction if accepted can again be introduced for other occasions for divorced children or separated children or widowed children.</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>29.<span style=\"white-space:pre\">	</span>In view of the legal principles enunciated in the above decision, vis-à-vis the object of the act, it is crystal clear that a person who is under the age of 18 years, at any cost cannot be a consenting party to a physical relationship in view of the definition of the ‘child’ under Section 2(d) of POCSO Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>32.<span style=\"white-space:pre\">	</span>Therefore, the theory propounded on behalf of the petitioner that the victim girl is a consenting party to the alleged penetrative sexual assault and there is absence of element of force and therefore, no ingredients whatsoever to attract the offence under Section 3 and 5 punishable under Section 4 and 6 of the POCSO Act cannot be countenanced in law, more so, at the stage of considering the bail application. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>33.<span style=\"white-space:pre\">	</span>Further, after the prosecution discharges the initial burden about the charges leveled against the accused, prosecution enjoys the presumption as is contemplated under Section 29 and 30 of the POCSO Act.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>35.<span style=\"white-space:pre\">	</span>On bare reading of the above provisions, it is crystal clear that in a given case after the prosecution places such evidence on record, which would discharge initial burden, it is always open for the accused to have his say in the matter placed on record, which would facilitate the Trial Court to arrive at a finding whether in a given case the act complained of against the accused would amount to an offence under Section 3 and 5 punishable under Section 4 and 6 of the POCSO Act. Till such time, it is not open for any Court to have a definite opinion as to the role of an accused in a matter of this nature.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>43.<span style=\"white-space:pre\">	</span>Keeping the above aspects in view, this Court is of the considered opinion that the argument put forward on behalf of the petitioner that the petitioner if enlarged on bail, would make sincere efforts to marry the victim girl cannot be countenanced in law. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>44.<span style=\"white-space:pre\">	</span>Keeping all these aspects in view, even though victim girl has stated that she had the company of accused and physical relationship and both the couple had the relationship on their volition, taking note of the object that is sought to be achieved by enacting the POCSO Act, this Court is of the considered opinion that the grounds urged in the petition are hardly sufficient to accept the request made by the petitioner to admit him on bail by resorting to the special powers vested in this Court under Section 439 Cr.P.C.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 45.<span style=\"white-space:pre\">	</span>However, it is always open for the petitioner to approach the Court with a successive bail request, if there is any positive changed circumstance in the case after examination of the material witnesses.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6a50dcdd744d17a7dbbd0227fc1fd9a8.JPG', '542d55efb7b08325cd3bc4785cfa6f28.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-10', 1, '', '', '2023-04-06 15:02:53', '2023-04-10 07:19:55'),
(2877, 'aUu8uX7bmkOYVriDpbGom08vE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Maintenance and Welfare of Parents and Senior Citizens Act. Transfer must have been made subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor. Karnataka High Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nanjappa Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Appeal 573 of 2022 decided on 17 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B. Veerappa and Justice K S. Hemalekha</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.   It is the case of the 3rd respondent, who is the petitioner before the learned Single Judge that he had purchased a property bearing Municipal Assessment No.3327/3081 measuring East to West 30 feet and North to South 50 feet situated at K.R.S. Agrahara, Ward No.22, Kunigal Town under a registered Sale Deed, dated 1.12.2006, in the name of the appellant/Nanjappa with a condition that the same has to be re-conveyed in his name (3rd respondent) and the entire sale consideration was paid by the 3rd respondent. Thereafter, the appellant/Nanjappa herein executed a registered Gift Deed, dated 23.2.2011, in favour of the 3rd respondent/M.B. Nagaraju in respect of the said property clearly mentioning in the Gift Deed that the entire sale consideration is paid by the 3rd respondent. Thereafter on 25.2.2016, the appellant/Nanjappa filed an application before the Assistant Commissioner for a declaration that the Gift Deed is null and void and in turn, the Assistant Commissioner by the order, dated 20.8.2016, allowed the application filed by the present appellant/Nanjappa, who was the 3rd respondent before the learned Single Judge and cancelled the registered Gift Deed, dated 23.2.2011, with a direction to the Sub-Registrar, Anekal, to re- register the right in respect of the said property in favour of present appellant/Nanjappa, which was challenged by the 3rd respondent/M.B. Nagaraju by filing a writ petition i.e., W.P.No.52010/2016 before this Court for the relief sought for.</b></font><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>It is an undisputed fact that the 3rd respondent purchased the property bearing Municipal Assessment No.3327/3081 measuring East to West 30 ft. and North to South 50 ft., situated at K.R.S. Agrahara, Ward No.22, Kunigal Town in the name of the appellant under the registered Sale Deed, dated 1.12.2006, and the entire sale consideration was paid by the 3rd respondent as mentioned in the Gift Deed. It is also not in dispute that the appellant executed a registered Gift Deed on 23.2.2011 in favour of the 3rd respondent in respect of the said property without stipulating any condition in the Gift Deed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>It is also not in dispute that the appellant had filed an application before the Assistant Commissioner on 25.2.2015 and the Assistant Commissioner, by the order dated 20.8.2016 allowed the application filed under Section 23(1) and (2) of the Senior Citizens Act with a direction to the authorities concerned to reinstate the right in respect of said site in favour of the present appellant.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>At this stage, it is relevant to consider the provisions of Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Protection Act, 2007.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>On careful reading of the aforesaid provisions makes it clear that all kinds of transfers as is clear from the use of the expression \'by way of gift or otherwise\' so as to attract the provisions of Sub-section (1) of Section 23 of the Senior Citizens Act, the following two conditions must be fulfilled: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>a)<span style=\"white-space:pre\">	</span>The transfer must have been made subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor; and </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>b)<span style=\"white-space:pre\">	</span>The transferee refuses or fails to provide such amenities and physical needs to the transferor. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>If both the aforesaid conditions are satisfied, by a legal fiction, the transfer shall be deemed to have been made by fraud or coercion or undue influence. Such a transfer then becomes voidable at the instance of the transferor and the Maintenance Tribunal gets jurisdiction to declare the transfer as void.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>Though a specific contention is urged by the learned Senior Counsel for the appellant that in view of the scope and object of the Senior Citizens Act, it is deemed that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property made by him would be null and void, it is an undisputed fact that when a senior citizen parts with his or her property by executing a gift or a release or otherwise in favour of his or her near and dear ones, a condition of looking after the senior citizen is not necessarily attached to it. On the contrary, very often, such transfers are made out of love and affection without any expectation in return. Therefore, when it is alleged that the conditions mentioned in Sub- section (1) of Section 23 of the Senior Citizens Act are attached to a transfer, existence of such conditions must be established before the Tribunal. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space:pre\">	</span>In the present case, on careful perusal of the document executed by the appellant in favour of the 3rd respondent, who happens to be the brother of the appellant, it does not contain any stipulation that the 3rd respondent is under the obligation to maintain the present appellant. In the absence of the same and in view of the provisions of Sub-sections (1) and (2) of Section 23 of the Senior Citizens Act, the transaction could be declared as null and void provided the same contains the stipulation that the transferee shall maintain the senior citizen and the aforesaid Gift Deed does not contain any such stipulation. In the absence of any condition stipulated in the documents, the provisions of Sub- sections (1) and (2) of Section 23 of the Senior Citizens Act are not attracted.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space:pre\">	</span>Though in the present case, a specific contention is being taken by the learned Senior Counsel for the appellant that, the appellant being the absolute owner of the property in question, out of love and affection executed a Gift in favour of his brother/respondent No.3 under a Gift Deed, dated 23.2.2012, with a ray of hope that the 3rd respondent/brother would take care of basic needs of medical necessities as his son was not keeping well and his daughter was settled with her husband, but respondent No.3 has changed attitude towards him and has failed to show even love and affection towards him. The fact remains that, on the application filed by the appellant against respondent No.3, the Assistant Commissioner, who is the authority under the provisions of Sub-sections (1) and (2) of Section 23 of the Senior Citizens Act has allowed the application filed by the present appellant ignoring the conditions stipulated under the provisions of Sub-sections (1) and (2) of the Senior Citizens Act as held by the Hon\'ble Supreme Court.   Thereby, the learned Single Judge has rightly allowed the writ petition. In identical circumstances, the Full Bench of the Kerala High Court in the case of Subhashini -vs- District Collector, Kozhikode reported in LAWS (KER)-2020-9-81 at paragraph-52 has held as under:<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>\"52. We conclude by answering the reference, that the condition as required under Section 23(1) for provision of basic amenities and basic physical needs to a senior citizen has to be expressly stated in the document of transfer, which transfer can only be one by way of gift or which partakes the character of gift or a similar gratuitous transfer. It is the jurisdictional fact, which the Tribunal will have to look into before invoking Section 23(1) and proceeding on a summary enquiry. We answer the reference agreeing with the decision in W.A. No. 2012 of 2012 dated 28.11.2012 [Malukutty Ponnarassery v. P. Rajan Ponnarassery]. We find Shabeen Martin v. Muriel [2016 (5) KHC 603] and Sundhari v. Revenue Divisional Officer [2018 KHC 4655 = (2013) 3 KLT 1082] to be wrongly decided. We approve Radhamani v. State of Kerala [2016 (1) KHC 9] which had a recital in the document akin to that required under Section 23(1).\"</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>24.<span style=\"white-space:pre\">	</span>On careful reading of the contents of the Gift Deed, dated 23.2.2012, the impugned order passed by the learned Single Judge of this Court is in consonance with the provisions of Sub-sections (1) and (2) of Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, as the Gift Deed, dated 23.2.2011, does not contain any stipulation that respondent No.3 is under obligation to maintain the present appellant. In the absence of the same, it cannot be held that the impugned order passed by the learned Single Judge is not in consonance with the provisions of Section 23 of the Senior Citizens Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>25.<span style=\"white-space:pre\">	</span>Though our conscious is in favour of the welfare of the Senior Citizens considering the scope and object of Maintenance and Welfare of Parents and Senior Citizens Act, 2007, but our hands are tied in view of the dictum of the Hon\'ble Supreme Court in the case of Sudesh Chhikara, wherein while interpreting the very provisions of Sub-section (1) of Section 23 of the said Act, it has been held that the two conditions must be stipulated in the document, which is binding on all including this Court as contemplated under Article 141 of the Constitution of India. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>26.<span style=\"white-space:pre\">	</span>The judgments relied upon by the learned Senior Counsel for the appellant are not applicable to the peculiar facts and circumstances of the present case, in view of the latest dictum of the Hon\'ble Supreme Court rendered on 6th December 2022 in the case of Sudesh Chhikara -vs- Ramthi Devi reported in LAWS(SC) 2022-12-17. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">27.<span style=\"white-space:pre\">	</span>For the reasons stated above, the point raised in the present Intra Court Appeal is answered in the negative holding that the appellant has not made out any ground to interfere with the impugned order, dated 26.2.2019, passed by the learned Single Judge in Writ Petition No.52010/2016.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space: pre;\">	</span>This Intra Court Appeal is hereby dismissed as being devoid of any merit. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '88e83d9f500715e62ccfbad80bcfb597.jpeg', '99865538b9d98535a590d4685fe44ecb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-10', 1, '', '', '2023-04-06 15:30:50', '2023-04-10 12:32:01');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2878, 'X9LAmIKoy6kkIHbg94GAFg1mN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Creation/claim of tenancy under the KLR Act in respect of granted lands also amounts to \'transfer\' under the SC/ST (PTCL) Act, 1978  and hence the same is void though the Tribunal order has become final. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Aswathappa Muniswamy and others Vs The State of Karnataka and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Writ Petition 15263 of 2014 decided on 28 April 2022.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice R. Devdas.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">This writ petition arises out of the provisions contained in a special statute-Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978&nbsp;&nbsp;</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">5. Learned Senior Counsel Smt.S.Susheela, appearing for the petitioners refers to series of cases in O.Dyamappa Vs. Appanna Bhovi and others, 1997 (3) KLJ 683; Siddoji Rao Vs. State of Karnataka and others 1983 (1) Kar.L.J. 478, which were followed in Thirtharama and others Vs. State of Karnataka, ILR 2011 KAR 1231, which were later reiterated by the Division Bench of this Court in the case of Sri.K.C.Yogesh and another Vs. State of Karnataka and Others in W.A.No.92-93/2012 and connected matters dated 22.06.2012 and Sri.B.S.Kallappa Vs. The Deputy Commissioner, Chikkamagaluru and Others, in W.A.No.15844/2011 dated 08.06.2012, to submit that the issue whether a Land Tribunal could confer occupancy rights in respect of a land granted to a person belonging to the Scheduled Caste or Scheduled Tribe community is decided and no more resintegra. It is submitted that it is a settled position of law that having regard to the overriding provision contained in Section 11 of the PTCL Act, the Land Tribunal orders stand overridden by the provisions of the PTCL Act.<br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">10. The primary argument of the learned Counsel for the contesting respondents is that the lands in question are not granted lands, since they were granted under Rule 43-J of the Karnataka Land Grant Rules, 1969 and admittedly, no conditions of nonalienation were imposed in the Grant Certificates.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">11. In the considered opinion of this Court, when the word ‘granted land’ has been defined in the PTCL Act, there is no scope for reading into the definition what is not provided for.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">13. In Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92, a Constitutional Bench of the Apex Court held that wherever the words ‘means and include’ are used, it is an indication of the fact that the definition ‘is a hard–and–fast definition’, and no other meaning can be assigned to the expression that is put down in the definition. It indicates an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expression.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">14. Having these principles enunciated, when we read the definition of the word ‘granted land’, as defined in the Act, the plain meaning prescribes only two requirements, one, that a grant or land holding right is bestowed under the relevant Land Grant Rules or any of the relevant law relating to agrarian reforms or land ceiling or abolition of inams, except grants relating to hereditary offices; two, that such grant is made in favour of a person belonging to any of the Scheduled Caste or Scheduled Tribes. Further, in order to remove any ambiguity in cases where lands are ‘allotted’ or where ‘occupancy rights’ are granted under the provisions of any agrarian reforms or land ceiling laws or abolition of inam laws or any other rights so granted, it is clarified that they shall be construed as ‘granted lands’. All such orders bestowing rights to hold land, on persons belonging to the SC/ST community shall be construed as grants, irrespective of whether the particular statute uses the word ‘allot’, ‘grant occupancy rights’ or use any other word which confers a right of holding the lands. Therefore, when the plain reading of the provision does not admit any ambiguity, it is impermissible to read anything more into the definition.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">15. The provision does not prescribe any further qualification and brings within its fold all the grants made under the relevant Rules without any reservation or exception. Therefore, all such grants, irrespective of whether the grant is made for full price, market value, upset price, reduced upset price or a portion of price is waived or a free grant, etc., all fall within the confines of the word ‘granted land’. In fact, in Kariyappa @ Kariyappa Vs. The Assistant Commissioner, Hassan and Others ILR 1997 Kar 1723, it was held that the purport and import of the definition is so wide that it includes not only agricultural lands but also house sites and nonagricultural lands.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">16. The concept of absolute sale is alien to the Karnataka Land Grant Rules, 1969. The confirmation of title under the Grant Rules, 1969, is by execution of a Grant Certificate in the prescribed format. Provision has been made for grant of land to religious and charitable institutions, industrial concerns in Rules 21 and 22. In Rule 22A which was inserted and brought into effect from 09.06.2015, the market value/rates fixed on lease basis earlier under Rules 19 to 22 were&nbsp;superseded and uniform market value or guidance value in respect of private bodies or institutions to whom grant is made on lease basis is provided for. However, even in respect of grant of land to industrial concerns, in terms of Rule 22, conditions of nonalienation for a period of thirty years is provided for. The Grant Certificates/Saguvali chits are issued as per Form-VII, in terms of Rule 29 only and there is no other form prescribed. The same Grant Certificate is prescribed even in respect of lands purchased in a public auction or on payment of upset price. The only difference between a free grant/reduced upset price and lands granted on payment of market value / full price/ upset price is regarding the stipulation of nonalienation conditions. Therefore, all such lands granted under the Karnataka Land Grant Rules, 1969, are ‘granted lands’. Similar is the situation even in respect of lands granted under the Mysore Land Revenue Code, 1888; Mysore Land Grant Rules, 1968 and all other relevant Land Grant Rules. Therefore, in the considered opinion of this Court, the contention of the learned Counsel for respondents that since nonalienation conditions are not imposed in the Grant Certificate, the lands in question are not granted lands as defined in the PTCL Act, is rejected as untenable.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">17. On the other hand, when a petition is filed under Section 5 of the PTCL Act, before the Assistant Commissioner, the Assistant Commissioner is required to find out, in terms of sub-section (1) of Section 4 of the Act, as to whether there is any transfer of such granted land, in contravention of the ‘terms of the grant’ of such land or the law providing for such grant. As noticeable, the Assistant Commissioner is required to enquire as to whether there is any contravention of the terms of the grant, on going through the Grant Certificate or whether the transfer is in contravention&nbsp;of the law providing for such grant. As regards, the second part of the provision, it has been well settled that if there is a conflict between the conditions imposed in the Grant Certificate and the law providing for such conditions, the law or the rule shall prevail. It is also a settled position, in terms of Guntaiah (supra) that if condition of non-alienation is incorporated in the Grant Certificate, it becomes unimpeachable at the hands of the purchaser.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">18. Having regard to the facts obtained in this writ petition, it is clear that there is no condition of non-alienation imposed in the Grant Certificate. However, we are not concerned, in the present context, as to whether there is any violation of the terms of the grant. This case falls under sub-section (3) of Section 5 and Section 11 of the PTCL Act&nbsp;</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">19. Sub-section (3) of Section 5 comes into play since it was claimed by the contesting respondents’ predecessors that they were tenants under the predecessors of the petitioners. The word ‘Transfer’ has been defined to include lease or any other transaction within its ambit. If the respondents had continued to be in possession of the lands without filing an application before the Land Tribunal seeking grant of occupancy rights, the petitioners had every right to approach the Assistant Commissioner, alleging that the respondents were in unauthorized occupation, then the Assistant Commissioner would have called upon the respondents to prove that they were in possession authorizedly and that they had not acquired the land by a transfer which is null and void under the provisions of sub-section(1) of Section 4. But, even before the PTCL Act was brought into force, the respondents approached the Land Tribunal seeking grant of occupancy rights, while contending that they were tenants under the petitioners. Right through the proceedings before the Land Tribunal, the&nbsp;petitioners have contended that the original applicants before the Tribunal namely, Sri.Byrappa and Sri.Pillappa were affluent and influential persons and they have used their clout to get their names entered in the RTCs as persons in possession of the lands. During the course of the proceedings before the Land Tribunal, the petitioners made an application before the Land Tribunal contending that the matter should be referred to the Assistant Commissioner under the provisions of the PTCL Act. This contention was negated by the Land Tribunal.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">20. In the considered opinion of this Court, the petitioners cannot be faulted on the premise that they could have approached the Assistant Commissioner earlier. The petitioners, having contended all through before the Land Tribunal that the respondents have never been their tenants and they were not entitled for grant of occupancy rights, were therefore entitled&nbsp;to await the outcome of the proceedings before the Tribunal. It was possible that the Land Tribunal would have accepted the contention of the petitioners and declared that the respondents were never the tenants occupying the lands in question. Nevertheless, when the Land Tribunal proceeded to hold that the respondents were tenants under the petitioners, the petitioners questioned the orders passed by the Tribunal before this Court. It is another matter that the said writ petition was dismissed for default by order dated 03.03.1997. The cause of action for the petitioners therefore arose from 03.03.1997, to approach the Assistant Commissioner, invoking the provisions of the PTCL Act.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">21. Going by the decision of the Hon’ble Apex Court in the case of Satyan Vs. Deputy Commissioner and others, (2020) 14 SCC 210, having regard to the objective of the beneficial legislation to redress the&nbsp;grievance of the grantees belonging to the depressed classes, the delay of about 5 years in filing the petition before the Assistant Commissioner cannot be held to be so enormous that they deserve to be dismissed on the ground of delay and laches.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">22. Even in respect of the delay of about 6 years and 4 months in filing this writ petition, the same principles as espoused in Satyan’s case is applicable, having regard to the facts and circumstances narrated therein above. This presents a classic case of how grant made by the sovereign power in favour of persons belonging to the depressed classes are being cornered and usurped by the rich and the influential. There has been some criticism and heartburn expressed when orders are passed invoking the beneficial provisions of the PTCL Act while resuming and restoring the lands in favour of the original grantees. To some extent, it is understandable that&nbsp;the purchasers having purchased the lands after tendering the market value are thereafter evicted on the ground that they purchased the lands in contravention of the terms of the grant. However, in the present case no such transfer has happened. The respondents never claimed that a lease deed was executed in their favour. On the other hand, the Land Tribunal has conferred occupancy rights in favour of the respondents.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">23. Such cases also bring to the fore the mechanical manner in which the Land Tribunals function, although they are entrusted with quasijudicial powers. 4 acres each were granted to 5 persons belonging to the depressed class. Two affluent persons claim to be tenants in respect of 12 acres and 8 acres respectively, under such persons of the depressed class. They claim to be personally cultivating the lands. No enquiry is made to find out as to the total extent of land held by such affluent persons. Although it is obvious that such vast extent of land could not have been cultivated personally, the statements of the neighbours&nbsp;are taken as gospel truth and orders are passed by the Land Tribunals, in many such cases, depriving the poor agriculturists of their lands and livelihood. Such cases also present stark reality of how the poor who are without any means of livelihood are further mired in the legal tangle which further expose such persons to answer difficult questions like–delay in approaching the authorities/ High Court and the Supreme Court. Lack of legal awareness, legal aid and lack of sufficient means, illiteracy, poverty are the bane of the poor litigants of this nation. Time and again the Apex Court has held that the laws and procedures should not become tools in the hands of the affluent to deprive the legitimate rights of the poor litigants. When Courts are dealing&nbsp; with beneficial legislations such as the one on hand, provisions should be interpreted in such manner that it would sub-serve the objectives with which the statute is enacted.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">25. Therefore, all the contentions raised at the hands of the contesting respondents are answered accordingly. The decisions cited by the learned Counsel for the respondents do not come to his rescue.</span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">The writ petition is allowed.</span></font></span></p>', '5db58319f8569de2b3bc7690791a3fba.JPG', '32c68c8bd4bed3d52f7e23a8912d6c9a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-06', 1, '', '', '2023-04-06 16:13:33', '2023-04-06 12:07:54'),
(2889, '8IXTfKQkL1IXP79AWPCD1zrb7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Town & Country Planning Act. Designation of land in the Master Plan, if not acquired within five years by paying compensation, lapses and the owner is entitled for conversion of land. Karnataka High Court.', '<p><span style=\"font-weight: bolder;\">Narayanaswamy vs The State of Karnataka and others.&nbsp;</span></p><p><span style=\"font-weight: bolder;\">Writ Petition 7942 of 2021 decided on 30 September 2021</span></p><p><b>Justice M. Nagaprasanna.&nbsp;</b></p><p><span style=\"font-weight: bolder;\">6. The Petition Schedule Property was designated for public and semi public use particularly for Devaraj Urs Truck Terminal with effect from 12-01-2016. The designation of any land under the Master plan if not required within a period of 5 years would lapse by the operation of provisions contained in Section 69 of the Act. The designated land shall be in the mode&nbsp; of acquisition for a period of five years from the date of approval of the Master Plan.&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 69 of the&nbsp; Act deals with acquisition of land designated for certain purposes in a Master Plan. Section 69(1) empowers the Planning Authority to acquire any land designated in the Master Plan for public purposes by agreement made under the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation&nbsp; and&nbsp; Resettlement&nbsp; Act,&nbsp; 2013 (‘Acquisition Act’ for short). The designated land would mean designation of such land for public or semi public utility relating to transport. Section 69(2) mandates that if the designated land as obtaining under sub-section (1) is not acquired either by agreement within 5 years from the date of publication of the Master Plan or under the Acquisition Act within the said period&nbsp; of five years, the designation shall be deemed to have lapsed. Sub-section 3 thereof directs action to be taken once sub-section&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(2) comes into effect and mandates that when the designated land&nbsp; &nbsp;use&nbsp; &nbsp;lapses&nbsp; under&nbsp; &nbsp;sub-section&nbsp; (2),&nbsp; the&nbsp; &nbsp;Authority would&nbsp;</span><span style=\"font-weight: bolder; font-family: var(--bs-font-sans-serif); font-size: 1rem;\">consider the new land use sought by the owner of such land, based on surrounding developments after previous publication&nbsp; in one or more newspapers having wide circulation for the purpose of calling objections and suggestions. Sub-section (4) mandates that the Planning Authority would after considering the proposal to assign land use and objects and suggestions may convey the assignment of new land use to the owner or reject the proposal for the reasons recorded therein.</span></p><p><span style=\"font-weight: bolder;\">15. Once Section 69(2) comes into operation by deeming lapse, sub-section (3) of Section 69 requires to be complied with by the Planning Authority immediately. Section 69(3) mandates that change of land use sought by the land owner should be considered in the manner depicted therein and an order should be passed under Section 69(4). Therefore, in the case at hand, Section 69(2) having come into play, the Planning Authority cannot but consider the application of the petitioner for&nbsp; such land use under Section 69(3) and pass an order under Section 69(4) of the Act.</span></p><p><span style=\"font-weight: bolder;\">16. Once orders are passed in that regard, it is then the application for conversion of land from the hands of the Deputy Commissioner is to be considered and as such, the Deputy Commissioner would consider the application submitted for conversion of land from agriculture to non-agricultural purposes under Section 95 of the Land Revenue Act.&nbsp;</span></p><p></p><p><span style=\"font-weight: bolder;\">(c) The Deputy Commissioner will then consider the application of the petitioner dated 3-04-2021 within the mandate under Section 95(5) of the&nbsp; Land Revenue Act that is 120 days from the date on which the petitioner informs the Deputy Commissioner with regard to orders being passed by the Planning Authority under Section 69(4) of the Act.</span></p>', 'bfbd182fb74cfb4a200f0704a94b92e5.jpeg', 'c7eff32d1b7cb9d72102bf75dd06d66b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-10', 1, '', '', '2023-04-10 15:52:58', '2023-04-10 15:52:58'),
(2899, 'ZvfpiM9jgk6KmdCNTV9Sogygi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'IPC. Section 306. To constitute the offence under Section 306, IPC, the accused must have played an active role by act of instigation or doing certain act to facilitate the commission of suicide. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Santhosh Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRLA 100163 of 2014 decided on 31 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Rajesh Rai K.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This appeal is  directed  against the judgment and order dated 02.08.2014 passed in SC No. 100/2010 by the VII Addl. District and Sessions Judge, Belagavi sitting at Chikkodi (hereinafter referred to as ’ Trial Court’) wherein the appellant convicted for the offence under Sections 498A and 306 of Indian Penal Code(hereinafter referred to as ‘IPC’) and sentenced to undergo simple imprisonment for a period of 3 years and with a fine of Rs. 10,000/- in default of which, to undergo simple imprisonment for a period of six months for the offence under Section 498A of  IPC  and  to undergo imprisonment for a period  of  3 years and with fine of Rs. 15,000/-, in default  of payment of fine to undergo simple imprisonment for a period of 8 months for the offence under Section 306 of IPC. The said impugned judgment challenged in this appeal. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Briefly, the facts relevant  for  the purpose of disposal of this appeal are as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The marriage  between  appellant-accused No. 1 and Smt. Jayashree alias Roopa (hereinafter referred to as ‘deceased’) was  solemnized  1½ year prior to 12.12.2009 and after marriage the appellant/accused No.1 being the husband of deceased used to ill-treat  her  both  physically and mentally in the matrimonial home along with his parents and brother i.e. accused Nos. 2 to 4. The reason for the harassment was that the deceased was unable to do the  domestic household works and also the appellant/accused No. 1 had extra marital affairs with one Sarojini, hence, he forced the deceased to give divorce to him. Inspite of elder’s advice, the accused continued giving torture to the deceased both physically and mentally. As such, on 12. 12.2009 at about 9 am in the matrimonial home i. e. at Kankanavadi village the deceased committed suicide by consuming poison.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>Having heard the learned counsel for both the sides and having perused  the documents, the points that would arise for my consideration are </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space:pre\">	</span>Whether the judgment under appeal suffers from any perversity or illegality warranting interference by this Court?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 2.<span style=\"white-space:pre\">	</span>Whether the learned Sessions Judge is justified in convicting the appellant- accused No.1 for the offences punishable under Sections 498A and 306 of IPC ?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>Having heard the learned counsel on both the sides and having perused records, the accused is not disputing the suicidal death of deceased Jayashree in the matrimonial home by consuming poison. Even otherwise, to substantiate the said aspect, by perusal of the inquest panchanama-Ex.P.8 and the postmortem report as per Ex.P18 issued by PW.15-Dr.Nabhinaik Hussainsab Naik and the final opinion of the said doctor as per Ex.P.18a, that “the death is due to consumption of organophosphorus compound / poison”. It is clear that deceased committed suicide by consuming poison in the matrimonial home. Hence, next aspect arises for my consideration is that whether the deceased committed suicide due to the ill treatment and abetment made by the appellant/accused No.1?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>31.<span style=\"white-space:pre\">	</span>By perusal of the above evidence as discussed supra, the death of the deceased Jayashree is not in dispute that she committed suicide by consuming poisonous substance at her matrimonial house. In order to prove the harassment meted out by accused to the deceased in the matrimonial house, the prosecution relied the evidence of PW.1-father, PW.5-sister, PW.6 brother of the deceased and PW.8 relative of the deceased, nevertheless, by perusal of the evidence of PW.1 who lodged Ex.P.3-complaint, no-where in the said complaint or in his evidence stated that when the deceased informed him about the harassment meted out by accused/appellant No.1 to her. There is no specific date forthcoming either in Ex.P3 or in the evidence of PW.1. According to PW1, his daughter informed about the ill treatment by accused No.1/appellant at the time when she came to his house for attending festival. As such, there is no proof of direct or indirect acts of incitement by the accused to the deceased for commission of suicide. Mere, allegation of harassment of the deceased by accused would not suffice to attract the provisions of Section 306 unless there being such action on the part of the accused which compels the deceased to commit suicide. More over such an offending action ought to be proximate to the time of occurrence. Even by perusal of evidence of PWs.5, 6 and 8 also, the said aspect of the matter is not forthcoming that the accused has harassed the deceased and abetted her to commit suicide soon before her death.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>35.<span style=\"white-space:pre\">	</span>In order to convict the accused for the offence punishable under Section 306 of IPC, accused must have committed the harassment or abetment to commit the suicide soon before her death.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>37.<span style=\"white-space:pre\">	</span>The Hon’ble Apex Court, once again reiterated the above position of law in respect of Section 306 of IPC in the recent judgment reported in the case of Mariano Anto Bruno and another Vs. The Inspector of Police reported in 2022 live  law  (SC)  834. Relevant paragraph Nos.36 and 38 are extracted below. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>“36. To convict a   person   under Section 306 IPC, there has to be clear mens rea to commit offence. It also requires an active act or direct act which leads deceased to commit suicide finding no other option and the act must be such reflecting intention of the accused to push deceased into such a position that he commits suicide. </b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>38.<span style=\"white-space:pre\">	</span>This Court has time and again reiterated that before convicting an accused under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.”</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>In the case on hand, there is no such evidence is forthcoming that the accused played an active role by his acts instigated or provoked the deceased to commit suicide and has done any act which could be said to have facilitated the commission of suicide by the deceased.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>38.<span style=\"white-space:pre\">	</span>Thus, by perusal of the dictum laid down by the Hon’ble Apex Court, it is clear that in order to convict an accused under Section 306 of IPC, the state of mind to commit the crime must be visible with regard to determining the culpability. There has to be a clear mens rea to commit the offence by the accused. It also requires an active act or direct act which led the deceased to commit suicide, seeing no option and that act must have been intend to push the deceased into such a position that she committed suicide. The person who is said to have committed the abetment must have played an active role by act of instigation or doing certain act to facilitate the commission of suicide. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>39.<span style=\"white-space:pre\">	</span>After careful assessing the evidence on record, I find that there is no direct evidence to show that the appellant/accused No.1 by his acts instigated or provoked the deceased to commit suicide and has not done any act said to have facilitated the commission of suicide by the deceased. As such, in my considered opinion, the prosecution failed to prove the charges leveled against the accused for the offences punishable under Section 306 of IPC and the learned Sessions Judge has not justified in convicting the accused for the offence punishable under Section 306 of IPC.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>40.<span style=\"white-space:pre\">	</span>By perusal of the evidence available on record, in my opinion, a case under Section 498A of IPC is made against the appellant for the reason that the prosecution witnesses have stated in their testimonies that the deceased was harassed both physically and mentally by the accused after the marriage, for the reason that she was unable to do household works and also by insisting her to agree for mutual consent divorce as accused has illegal affair with one Sarojini. PWs.1, 5, 6 and 8 have categorically deposed to that aspect. There is no reason to disbelieve their version in respect of the harassment meted out by the accused appellant to the deceased. As held by the Hon’ble Apex Court in the judgments cited supra, the charges under Section 306 and 498A of IPC are independent of each other and acquittal of one does not lead to acquittal on other. However, in order to justify a conviction under the later provision, there must some material and cogent evidence be available on record. As discussed supra, the consistent evidence of PW1s.1, 5, 6 and 8 coupled with Ex.P3-the complaint lodged by PW1 at the earliest point of time after the death of deceased clearly depicts that the prosecution has to proved beyond reasonable doubts the harassment meted out by the accused No.1 to the deceased that itself bring home the charge under Section 498A against the accused. Hence, I find no reason to take a different view than what has been taken by the trial Court as far as Section 498A of IPC is concerned.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b> 41.<span style=\"white-space:pre\">	</span>Nevertheless, in the facts and circumstances of the case, though the learned Sessions Judge convicted the accused for the offence punishable under Section 498A of IPC, by imposing 3 years simple imprisonment and to pay fine of Rs.10,000/-, in default, to undergo 6 months simple imprisonment since the offence is committed in the year 2009 and judgment of trial Court was passed in the year 2014 and as could be seen from the records that the accused has already suffered incarceration for 3 months 5 days i.e. from 17.12.2009 to 22.02.2010. In the aforesaid circumstances, I am intend to modify the sentence by imposing substantive fine amount along with custody period already undergone by the appellant/accused No.1. Accordingly, the appellant would have to pay a fine of Rs.1,00,000/-. In default shall undergo simple imprisonment for a period of 6 months for the offence under Section 498A of IPC.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>i)<span style=\"white-space: pre;\">	</span>Appeal filed by the appellant/accused No.1 is allowed in part.</b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd1d1e663b858a6f1b6be32eb52e5ba07.jpeg', '07bb5e36f7b5d2323530f0ef64b6d920.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-13', 1, '', '', '2023-04-12 14:58:55', '2023-04-13 08:59:36');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2891, '9IBX6StlJI3YrqLpEY9lEX7zl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Unregistered document affecting immovable property and required by Registration Act or the Transfer of Property Act to be registered may be received as evidence of a contract in a suit for specific performance.  Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R. Hemalatha Vs Kashthuri.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 2535 of 2023 decided on 10 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice Krishna Murari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Judicature at Madras at Madurai passed in Revision Application No.1877 of 2017 dated 01.02.2022 by which the High Court has allowed the said revision application preferred by the respondent herein by quashing and setting aside the order passed by the learned Trial Court passed in I.A. No.159 of 2017 in O.S. No.199 of 2014 by further directing that the document in question shall be received in evidence in the suit for specific performance, the original defendant has preferred the present appeal. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. The facts leading to the present appeal in nutshell are as under:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.1 That the respondent herein is an original plaintiff (hereinafter referred to as “original plaintiff”) instituted civil suit being O.S. No.199 of 2014 for specific performance of the Agreement to Sell dated 10.09.2013. After the chief­examination of the plaintiff as PW­1, on the application filed by the appellant – original defendant, a preliminary issue was framed by the learned Trial Court on the admissibility of the Agreement dated 10.09.2013 in evidence. It was the case on behalf of the defendant that in view of the Tamil Nadu Amendment Act No.29 of 2012 to the Indian Registration Act, under which the instruments of agreement relating to sale of immovable property of the value of Rs.100/­ and upwards is compulsorily required to be registered, the said unregistered document shall be inadmissible in evidence. On the other hand, relying upon Section 49(a) and (c) of the Act, it was submitted that an unregistered Agreement to Sell can be admitted as evidence of a contract in a suit for specific performance. The learned Trial Court held the preliminary issue in favour of the defendant and against the plaintiff by observing that the unregistered Agreement dated 10.09.2013 shall not be admissible in evidence</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.2 Feeling aggrieved and dissatisfied with the order of the learned Trial Court, the plaintiff preferred the present revision application before the High Court. By the impugned judgment and order, the High Court has allowed the revision petition relying upon Section 49 of the Registration Act by setting aside the order passed by the learned Trial Court and directed that the agreement in question be received in evidence considering the fact that the suit in question is a suit for specific performance, which falls within the first exception carved out in the proviso to Section 49.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.3 The impugned judgment and order passed by the High Court directing to receive the unregistered Agreement to Sell in evidence in a suit for specific performance, the original defendant has preferred the present appeal.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. We have heard the learned counsel appearing on behalf of respective parties at length. The short question posed for the consideration of this Court is effect of Section 17(1)(g) of the Registration Act applicable to the State of Tamil Nadu by which Section 17(1)(g) of the Registration Act has been inserted and instruments of agreement relating to sale of immovable property of the value of Rs.100/­ and upwards is made compulsorily registrable and whether such unregistered agreement relating to sale of immovable property can be received in evidence in a suit for specific performance?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. Thus, on and after the Tamil Nadu Amendment Act, 2012, as per Section 17(1) (g), instrument of agreement relating to sale of immovable property of the value of Rs.100/­ and upwards is required to be registered compulsorily. However, despite the same and despite the “explanation” to sub­section (2) of Section 17 has been omitted, there is no corresponding amendment made to Section 49 of the Registration Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10. Thus, as per proviso to Section 49, an unregistered document affecting the immovable property and required by Registration Act to be registered may be received as evidence of a contract in a suit for specific performance under Chapter­II of the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered document.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. At this stage, the primary statement of objects and reasons to the Tamil Nadu Amendment Act, 2012, is also required to be referred to and considered. The primary statement of objects and reasons seem to suggest that amendment has been introduced by the State of Tamil Nadu bearing in mind the loss to the exchequer as public were executing the documents relating to sale of immovable property etc. on white paper or on stamp paper of nominal value.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12. At this stage, it is required to be noted that the proviso to Section 49 came to be inserted vide Act No.21 of 1929 and thereafter, Section 17(1A) came to be inserted by Act No. 48 of 2001 with effect from 24.09.2001 by which the documents containing contracts to transfer or consideration any immovable property for the purpose of Section 53 of the Transfer of Properties Act is made compulsorily to be registered if they have been executed on or after 2001 and if such documents are not registered on or after such commencement, then there shall have no effect for the purposes of said Section 53A. So, the exception to the proviso to Section 49 is provided under Section 17(1A) of the Registration Act. Otherwise, the proviso to Section 49 with respect to the documents other than referred to in Section 17(1A) shall be applicable.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13. Under the circumstances, as per proviso to Section 49 of the Registration Act, an unregistered document affecting immovable property and required by Registration Act or the Transfer of Property Act to be registered, may be received as evidence of a contract in a suit for specific performance under Chapter­II of the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered instrument, however, subject to Section 17(1A) of the Registration Act. It is not the case on behalf of either of the parties that the document/ Agreement to Sell in question would fall under the category of document as per Section 17(1A) of the Registration Act. Therefore, in the facts and circumstances of the case, the High Court has rightly observed and held relying upon proviso to Section 49 of the Registration Act that the unregistered document in question namely unregistered Agreement to Sell in question shall be admissible in evidence in a suit for specific performance and the proviso is exception to the first part of Section 49.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14. In view of the above and for the reasons stated above, the present appeal fails and the same deserves to be dismissed. It is accordingly dismissed. There shall be no orders as to costs. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ad306062152455df4eeb7c57ccca6f71.jpeg', '5305b8e12f30a82392740c9ea176a37f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-12', 1, '', '', '2023-04-11 13:59:56', '2023-04-12 08:56:48'),
(2883, '0TnDIVcb6Rop8fURdaS6MZ5sA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Income Tax Act. Where two views are possible and the Assessing Officer has adopted one view, such a decision, which might be plausible and it has resulted in loss of Revenue, such an order is not revisable under Section 263. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Commissioner of Income Tax 7 Vs M/s. Paville Projects Pvt Ltd.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6126 of 2021 decided on 6 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice A.S. Bopanna</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The relevant assessment order concerning the\r\npresent appeal is Assessment Year 2007-08.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The respondent assessee was engaged in\r\nmanufacture and export of garments, shoes etc. It\r\nfiled its income tax return for the AY 2007-08\r\nwherein it showed sale of the property / building\r\n“Paville House” for an amount of Rs.33 Crores.\r\nThat, the building “Paville House” was constructed\r\nby the assessee on the piece of land which was\r\npurchased in the year 1972. The said house of the\r\ncompany was duly reflected in the balance sheet of\r\nthe company.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.1 It appears that there had been litigation between\r\nshareholders of the Company being family\r\nmembers. Litigations in the Company Law Board\r\nand the High Court culminated in arbitration. In the\r\narbitration proceedings, an interim award was\r\npassed whereby an amicable settlement termed as\r\n“family settlement” was recorded between the\r\nparties. As per the interim award, three shareholders\r\nviz. (1) Asha, (2) Nandita and (3) Nikhil were paid\r\nRs.10.35 Crores each. According to the assessee <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“Paville House” was sold to discharge\r\nencumbrances from the sale proceeds to pay off the\r\nshareholders and therefore, the said discharge of\r\nencumbrances was “cost of improvement”. As\r\nobserved hereinabove, “Paville House” was sold for\r\nan amount of Rs.33 Crores. The assessee showed\r\ngains arising therefrom amounting to\r\nRs.1,21,16,695/- as “long term capital gains” in the\r\ncomputation of their income for AY 2007-08. The\r\nworking computation of capital gains was accepted\r\nby the AO, whereby the cost of removing\r\nencumbrances claimed (Rs.10.33 Crores paid to\r\nthree shareholders pursuant to the interim award)\r\nwas taken as “cost of improvement” and the\r\ndeduction was claimed to remove encumbrances on\r\ncomputation of capital gains. On the balance\r\namount capital gain tax was offered and paid. The\r\nassessment was completed on 15.12.2019 by the\r\nAO under Section 143(3) of the Income Tax Act (for\r\nshort “IT Act”) accepting the “long term capital gains”\r\nas per sheet attached in computation of income.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.2 However, a notice dated 24.10.2011 was issued by\r\nthe Commissioner of Income Tax-7 under Section <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">263 of the IT Act to show cause as to why the\r\nassessment order should not be set aside under\r\nSection 263 of the IT Act. The Commissioner vide its\r\norder dated 24.11.2011 held that the assessment\r\norder passed under Section 143(3) of the IT Act was\r\nerroneous and prejudicial to the interest of the\r\nrevenue on the issue relating to deduction of\r\nRs.31.05 Crores claimed by the assessee as cost of\r\nimprovement while computing long term capital\r\ngains. The claim of the assessee that the said\r\npayment was made by them towards settlement of\r\nlitigation, which according to the assessee\r\namounted to discharge of encumbrances and\r\nrequired to be considered as cost of improvement,\r\nwas not accepted by the Commissioner as\r\naccording to him it did not fall under the definition of\r\n“cost of improvement” contained in Section 55(1)(b)\r\nof the IT Act. According to the Commissioner, the\r\nexpenses claimed by the assessee neither\r\nconstituted expenditure that is capital in nature nor\r\nresulted in any additions or alterations that provide\r\nan enhanced value of an enduring nature to the\r\ncapital asset. The Commissioner also held that the\r\npayment as contended, was not made by the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">assessee to remove encumbrances.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3.3 The Commissioner also held that provisions of\r\nsections 50A and 55(1)(b) of the IT Act have not\r\nbeen complied with and the assessment order is not\r\nframed in consonance with the provisions of the IT\r\nAct and thus the assessment order was erroneous\r\nand prejudicial to the interest of the revenue.\r\nConsequently, the Commissioner set aside the\r\nassessment order passed by the AO with a direction\r\nto the AO to recompute the capital gains of the\r\nassessee in consonance with the provisions of the\r\nIT Act as discussed in the order.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n3.4 The assessee approached the Income Tax Appellate\r\nTribunal (for short “ITAT”) by way of filing ITA\r\nNo.16/MUM/2012 against the order passed by the\r\nCommissioner, passed under Section 263 of the IT\r\nAct. The ITAT relying upon the decision of this Court\r\nin the case of Malabar Industrial Co. Ltd. Vs. CIT\r\n[(2000) 2 SCC 718 : (2000) 243 ITR 83 (SC)]\r\nconcluded that the Commissioner wrongly invoked\r\nthe jurisdiction under Section 263 of the IT Act. The\r\nITAT also observed that there was no error on facts </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">declared. The ITAT held that every loss of revenue\r\nas a consequence of AO’s order cannot be treated\r\nas prejudicial to the interest of the revenue, when\r\ntwo views were possible and AO took a view which\r\nCIT did not agree with. The ITAT also upheld the\r\nallowability of the assessee’s claim of deduction of\r\npayment made to the shareholders relying upon the\r\ndecision of the Bombay High Court in CIT Vs. Smt.\r\nShakuntala Kantilal [(1991) 190 ITR 56\r\n(Bombay)]. The ITAT relying on the Tribunal’s order\r\n(Bombay Bench) in Chemosyn Ltd. Vs. ACIT [2012\r\n(25) Taxxman.com 325 (Bombay)] held that the\r\nCIT’s observation of expenditure incurred for\r\npayment of shareholders not being deductible as\r\nincorrect.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3.6 Feeling aggrieved and dissatisfied with the\r\nimpugned judgment and order passed by the High\r\nCourt dismissing the appeal preferred by the\r\nRevenue and confirming the order passed by the\r\nITAT by which the ITAT set aside the order passed\r\nby the Commissioner passed under Section 263 of\r\nthe IT Act, the Revenue has filed the present\r\nappeal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. In the present case, the Commissioner, in exercise\r\nof the powers under Section 263 of the Income Tax\r\nAct and in exercise of the revisional jurisdiction, set\r\naside the assessment order by specifically\r\nobserving that the assessment order was erroneous\r\nas well as prejudicial to the interest of the Revenue.\r\nHowever, the High Court by the impugned judgment\r\nand order has set aside the order passed by the\r\nCommissioner by observing that the Commissioner\r\nwrongly invoked the powers under Section 263 of\r\nthe Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7.1 Learned counsel appearing on behalf of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">assessee has heavily relied upon the decision of\r\nthis Court in the case of Malabar Industrial Co.\r\nLtd. (supra). It is true that in the said decision and\r\non interpretation of Section 263 of the Income Tax\r\nAct, it is observed and held that in order to exercise\r\nthe jurisdiction under Section 263(1) of the Income\r\ntax Act, the Commissioner has to be satisfied of twin\r\nconditions, namely, (i) the order of the Assessing\r\nOfficer sought to be revised is erroneous; and (ii) it\r\nis prejudicial to the interests of the Revenue. It is\r\nfurther observed that if one of them is absent,\r\nrecourse cannot be had to Section 263(1) of the Act.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7.2 Thus, even as observed in paragraph 9 by this\r\nCourt in the case of Malabar Industrial Co. Ltd.\r\n(supra) that the scheme of the Act is to levy and\r\ncollect tax in accordance with the provisions of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Act and this task is entrusted to the Revenue. It is\r\nfurther observed that if due to an erroneous order of\r\nthe Income Tax Officer, the Revenue is losing tax\r\nlawfully payable by a person, it will certainly be\r\nprejudicial to the interests of the Revenue.\r\nHowever, only in a case where two views are\r\npossible and the Assessing Officer has adopted one\r\nview, such a decision, which might be plausible and\r\nit has resulted in loss of Revenue, such an order is\r\nnot revisable under Section 263.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n7.3 Applying the law laid down by this Court in the case\r\nof Malabar Industrial Co. Ltd. (supra) to the facts\r\nof the case on hand and even as observed by the\r\nCommissioner, the order passed by the Assessing\r\nOfficer is erroneous as well as prejudicial to the\r\ninterest of the Revenue. Having gone through the\r\nassessment order as well as the order passed by\r\nthe Commissioner of Income Tax, we are also of the\r\nopinion that the assessment order was not only\r\nerroneous but prejudicial to the interest of the\r\nRevenue also. In the facts and circumstances of the\r\ncase, it cannot be said that the Commissioner\r\nexercised the jurisdiction under Section 263 not\r\nvested in it. The erroneous assessment order has </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">resulted into loss of the Revenue in the form of tax.\r\nUnder the Circumstances and in the facts and\r\ncircumstances of the case narrated hereinabove,\r\nthe High Court has committed a very serious error in\r\nsetting aside the order passed by the Commissioner\r\npassed in exercise of powers under Section 263 of\r\nthe Income Tax Act.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>8. In view of the above and for the reasons stated\r\nabove, present appeal succeeds. The impugned\r\njudgment and order passed by the High Court is\r\nhereby quashed and set aside and that the order\r\npassed by the Commissioner passed in exercise of\r\npowers under Section 263 of the Income Tax Act is\r\nhereby restored.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>In result, present appeal is allowed. However, in the\r\nfacts and circumstances of the case, there shall be\r\nno order as to costs.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e45a500efe866514bb31cb37dbf6d080.jpeg', 'a832444a76c4a6bf0f29a1daf6fbc1cd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-11', 1, '', '', '2023-04-10 13:40:09', '2023-04-11 12:31:58'),
(2884, 'eMu2sJos8z9BGvUr6W8NsnyMI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'No estoppel against statute. Landowners cannot be deprived of compensation for the Road Margin Area even though they accepted condition and derived benefit under the approved plan. Karnataka High Court. ', '<p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Arun Venkanna Navali vs Hubbali Dharward Municipal Corporation and others.&nbsp;<br></b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Writ Petition 108209 of 2016 decided on 22 December 2021.</b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Justice Hemant Chandangoudar.</b></span></p><p><b>In all the abovementioned writ petitions, the challenge is to the endorsements issued by the Special Land Acquisition Officer,Karnataka Road Development Corporation Limited, Dharwad, refusing to pay compensation to the petitioners stating that the properties which were acquired vide notification dated 21.11.2012 issued under Section 17(3) of the Karnataka Highways Act, 1964, fell under the road margin area and as such vested with the Hubli - Dharwad Municipal Corporation, free from all encumbrances under Section 32(5) of the Karnataka Urban Development Authority Act, 1987. The petitioners have further sought for a direction from the Land Acquisition Officer to pass an award and pay compensation for having acquired properties belonging to them for widening of road from Hosur Circle, Hubballi, to Jubilee Circle, Dharwad, for the purpose of implementation of the BRTS project.</b></p><p><b>5. I have carefully examined the submissions made by the learned counsel appearing for the parties and perused the materials on record.</b></p><p><b>6. The points that arise for consideration in these writ petitions are as follows;</b></p><p><b>a) Whether the acquired properties in question, which were earmarked for widening of National&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Highway No.4 in the Master Plan published by local planning authority and earmarked as road margin area in the layout plans approved under the provisions of the KUDA Act, Karnataka Town and Country Planning Act (for short ‘KTCP Act’) and the KIAD Act fall under the purview of Section 32(5) of the KUDA Act?</span></b></p><p><b>b) Whether the petitioners having derived benefit under the approved plans and having accepted the conditions can contend that by executive fiat be deprived of their properties without payment of compensation?</b></p><p><b>14.<span style=\"white-space: pre;\">	</span>Admittedly, the acquired properties in question were earmarked for widening of National Highway No.4 in the master plan published by the local Planning Authority. The Authorities while<span style=\"white-space: pre;\">	</span>sanctioning<span style=\"white-space: pre;\">	</span>the<span style=\"white-space: pre;\">	</span>layout<span style=\"white-space: pre;\">	</span>plans (residential/commercial/industrial) having regard to the fact that the portion of lands which were earmarked for widening of national highway imposed a condition that the said portion of land referred to as margin area should be surrendered or relinquished in favour of the local Authority free of cost. Thus, the acquired properties were earmarked as road margin area in the approved layout plans in the context of the said properties being earmarked for widening of national highway in the master plan published by the local Planning Authority and not as roads which were to be formed in the respective approved layout. The layout plans were sanctioned by imposing a condition that the area earmarked as road margin area specifying that the same&nbsp;&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">should be surrendered in favour of the local Authority free of cost.&nbsp;</span></b></p><p><b>16. Road Margin Area means the portion of land at the edge of the property abutting an existing road or a proposed road and not the roads which are formed within the developed property. The acquired properties were all portions of lands at the edge of the property and admittedly abutting the old National Highway No.4. The properties in question acquired for the BRTS project cannot be said that the same comes under purview of Section 32(5) of the KUDA Act. Hence, the denial of compensation to the petitioners on the ground that the acquired properties come under the purview of Section 32(5) of the KUDA Act is not sustainable and violates Articles 300A of the Constitution of India.</b></p><p><b>17.<span style=\"white-space: pre;\">	</span>Admittedly in the order passed under the provisions of KTCP Act, KUDA Act &amp; KIAD Act approving the respective layout plans, a condition was imposed that the area earmarked as road margin area should be surrendered or handed over to the local Authority free of cost. The petitioners or the erstwhile owners of the acquired properties in question accepted the said condition and derived the benefit under the sanctioned layout plan.</b></p><p><b>18. Before answering the point raised for consideration as to whether the petitioners, having accepted the conditions, can approbate and reprobate; that they cannot be deprived of compensation by an executive order is required to be considered in the backdrop of the following ratio enunciated by the Apex Court.</b></p><p><b>21. The petitioners in all these writ petitions or the erstwhile owners of the acquired properties in question have accepted the condition imposed in the order approving the respective layout plans for surrendering or relinquishing the land earmarked as road margin area. The Apex Court in the cases referred to supra has held that the party knowingly deriving the benefit of a contract is estopped from denying the validity or the binding effect of such contract on him.&nbsp;</b></p><p><b>24.<span style=\"white-space: pre;\">	</span>Referring to Municipal Council, Neemuch v.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Mahadeo Real Estate and Ors. reported in (2019) 10 SCC 738, the Apex Court made it very clear that if the decision maker has not understood the law correctly that regulates his decision-making power or when it is found that the decision of the decision maker is vitiated by irrationality invoking the principle of \"Wednesbury Unreasonableness\" or if it is found that there has been a procedural impropriety in the decision- making process, it would be permissible for the High Court to interfere in the decision-making process.</span></b></p><p><b>25. The doctrine of approbation and reprobation is only a species of estoppel - it applies only to the conduct of parties. An element of fair play is inbuilt in this principle. As in the case of estoppel, it cannot operate against the provisions of statute as held by the Apex Court in the case of Commissioner of Income Tax, Madras -vs- V. MR P. Firm Muar reported in 1961 SC 1216 and Union Of India vs N Murugesan reported in 2021 (3) SLJ 401 (SC).</b></p><p><b>26. The Scott\'s law of approbation and reprobation is applicable in cases wherein restitution is impossible or inequitable after the exercise of the choice, as held by the Supreme Court in Bhau Ram vs. Baij Nath Singh reported in 1961 AIR 1327.</b></p><p><b>27.<span style=\"white-space: pre;\">	</span>The KTCP Act, KUDA Act or the KIADB Act do not contain any provision which specify the portion of the land which was earmarked for widening of the road or for formation of road in future, in the Master Plan; and which area earmarked as road margin area in the approved layout plans should be surrendered or relinquished in favour of the local Authority. Section 32(5) of the KUDA Act only specifies that the owner is required to transfer the road formed in the layout in favour of the local Authority without claiming any compensation. In the absence of any legal Authority or support by competent legislature as enumerated in the Article 300A of the Constitution of India, the petitioners cannot be deprived of their rights for claiming compensation as held by the Apex Court in the case of KT Plantation (supra). In the absence of any legal sanctity, the conditions imposed are not enforceable against the petitioners. Hence, the decisions&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">relied upon by the learned counsel for the KRDC Limited are not applicable to the facts of the case.</span></b></p><p><b>28.<span style=\"white-space: pre;\">	</span>In view of the preceding analysis, I am of the considered view that the properties in question acquired for BRTS project does not fall under the purview of Section 32(5) of the KUDA Act and the petitioners are entitled for compensation towards the properties belonging to them, acquired for the purpose of BRTS property. Accordingly, I pass the following:</b></p><p><b>ORDER</b></p><p><b>i)Writ petitions are allowed;</b></p><p><b>ii) It is declared that the impugned endorsements issued by the Special Land Acquisition Officer, Karnataka Road Development Corporation Limited denying the compensation to the petitioners is held to be in violation of Article 300A of the Constitution of India;</b></p><p><b>iii) The Special Land Acquisition Officer, Karnataka Road Development Corporation Limited hereby directed to pass an award and pay compensation to the petitioners in accordance with law after&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">notifying the petitioners within six months from the date of receipt of certified copy of this order.</span></b></p><p><b>iv) The Revenue Authorities concerned are hereby directed to delete the name of the Hubli-Dharwad Municipal Corporation from the revenue records in respect of portion of properties which are earmarked as road margin area in the respective approved layout plans and which are not acquired for the purpose of BRTS project;</b></p><p><b>v) It is made clear that the Special Land Acquisition Officer, Karnataka Road Development Corporation Limited shall verify actual extent of properties acquired for BRTS project and thereafter pass an award.&nbsp;</b></p>', 'b9cd025ed5051b109d591427712b07c1.jpeg', '035ec4abc82b256b82c2d16044f844a3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-10', 1, '', '', '2023-04-10 13:57:18', '2023-04-10 13:58:01');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2885, '0hmXB9EYreHdsB16ElXBHM1nO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Disposition property in unnatural, improbable or unfair manner and exclusion of or absence of adequate provisions for the natural heirs without any reason is a ground to doubt the execution of a Will. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sreenivasmurthy Vs Lakshmamma and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R.S.A 697 of 2018 decided on 23 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The factual matrix of the case of the plaintiffs before the Trial Court is that, one Sri Lakkanna of L.H. Palya had two sons through his wife Lakshmamma and the first son by name Kamanna is no more. The plaintiff Nos.1 and 2 are the daughters of said Kamanna and defendant No.5 is the mother of plaintiff Nos.1 and 2. Since, the defendant No.5 is not in good terms with the plaintiffs and acting detrimental to the interest of the plaintiff, she is arrayed as defendant No.5 in the suit. The defendant No.1 is the wife of late Venkatappa, the defendant Nos.2 and 3 are the sons and defendant No.4 is the daughter of late Venkatappa. The plaintiffs and defendants constitute Hindu Undivided joint family. The suit properties are the joint family properties of the plaintiffs and defendants and they are in joint possession and enjoyment of the same. The father and uncle of the plaintiffs are no more. As such, the defendant No.2 being the eldest male member in the family of the defendants, has got changed the khatha of suit properties into his name behind the back of the plaintiffs, in order to knock off the valuable properties and to deprive the plaintiffs from getting their legitimate share in the suit properties. It is contended that the alleged Will dated 08.06.1993 executed by Lakkanna @ Lakkashetty in favour of defendant No.2 is created and concocted by the defendant Nos.1 to 3 for the purpose of this suit and to deprive the plaintiffs from their legitimate share in the suit properties and it does not binds the plaintiffs’ share in the suit properties. It is contended that the plaintiffs demanded the defendants to partition the suit properties and to allot their legitimate share but, the defendants refused to allot the share. Hence, without any other alternative, filed the suit seeking the relief of partition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>Being aggrieved by the judgment and decree of the Trial Court, the defendant No.2 has filed an appeal in R.A.No.14/2016, wherein it is contended that the Trial Court committed an error in granting the decree and contend that the judgment and decree passed by the Trial Court is erroneous, illegal and opposed to law and it calls for interference. It is also contended that the Trial Court has not appreciated both oral and documentary evidence placed on record by the plaintiffs and defendants in a proper perspective and erroneously answered the issues against the defendants and decreed the suit and the very approach of the Trial Court is erroneous. Hence, the First Appellate Court also formulated the points whether the judgment and decree of the Trial Court is erroneous, illegal and opposed to law. The First Appellate Court, on re-appreciation of both oral and documentary evidence placed on record, answered the said point as ‘partly affirmative’. However, confirmed the judgment and decree of the Trial Court, modifying the shares of plaintiff Nos.1 and 2 and also the defendants. Being aggrieved by the judgment and decree of both the Trial Court as well as the First Appellate Court, the present second appeal is filed before this Court.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>Based on the grounds urged by the appellant- defendant No.2 in the second appeal, this Court has framed the following substantial questions of law: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space:pre\">	</span>Whether the First Appellate Court is justified in concluding that the defendant Nos.1 and 2 have failed to prove the registered Will dated 08.06.1993, ignoring the oral evidence on record in terms of Section 69 of the Indian Evidence Act? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ii)<span style=\"white-space:pre\">	</span>Whether the First Appellate Court has erred in re-appreciating the evidence of the brother of Mr. Puttarangaiah, who was the attesting witness to the Will, Ex.D6?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space:pre\">	</span>Having heard the respective counsel and also in view of substantial questions of law framed by this Court while admitting the appeal, this Court has to examine the material on record whether both the Courts committed an error in not accepting the Will. Having considered both oral and documentary evidence placed on record, the very first substantial question of law framed by this Court is whether the First Appellate Court is justified in concluding that the defendant Nos.1 and 2 have failed to prove the registered Will dated 08.06.1993, ignoring the oral evidence on record in terms of Section 69 of the Indian Evidence  Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>28.<span style=\"white-space:pre\">	</span>Having heard the respective counsel and also on perusal of the material available on record, it is not in dispute that the Will was a registered Will and D.W.3 is the scribe of the Will. It is also not in dispute that both the attestors were not alive and D.W.1 examined a witness as D.W.2 i.e., the brother of the attesting witness and in the cross-examination, he admits that he was not having acquaintance with the signature of his brother. The son of the attesting witness has not been examined and his brother has been examined as D.W.2, who says that son of D.W.2 is staying at Tamilnadu. It is important to note that, D.W.2 categorically admits that he does not know reading and writing and also he cannot identify the words and signature. He further admits that he cannot say in which language his brother was signing but, later, he says that his brother was signing in ‘English’. He also categorically admits that defendant No.2 brought him to Court to give evidence and he has not produced any document having similar signature of his brother before the Court.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>29.<span style=\"white-space:pre\">	</span>Having taken note of these admissions, it is evident that the witness, who has been examined as D.W.2 was not having acquaintance with the signature of his brother and even, he does not know in which language his brother was signing the document and further, even, he cannot identify the words and signature and when he was brought by defendant No.2 to give evidence, his evidence cannot be accepted in terms of Section 69 of the Evidence Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>33.<span style=\"white-space:pre\">	</span>I have already pointed out that, in the cross- examination of brother of Mr. Puttarangaiah, who has been examined as D.W.2, he categorically admits that, he cannot identify the words and signature of anybody and when, he was examined, he was unable to identify the words as well as signature, the very identification of signature of his brother cannot be accepted. The said evidence is also not in consonance with Section 69 of the Evidence Act and if the attesting witnesses are not found and are not alive, the same has to be proved that attestation of one attesting witnesses is at least in his handwriting and signature of the person executing the document is in the handwriting of that person and such ingredients of Section 69 of the Evidence Act has not been proved by the defendant No.2 and mere examination of brother of one of the attesting witness and son of the attesting witness is not sufficient, unless the witnesses, who have been examined before the Court are having acquaintance with the signature or words of the attesting witnesses. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>34.<span style=\"white-space:pre\">	</span>The counsel for the respondents also rightly pointed out Section 3 of the Transfer of Property Act with regard to the attestation is concerned. When such materials are considered by both the Trial Court as well as the First Appellate Court, I do not find any error committed by the Trial Court and the First Appellate Court in not accepting the Will. The learned counsel appearing for the respondents also brought to notice of this Court the principles laid down in the judgment referred (supra) in BHARPUR SINGH’s case with regard to doubtful and suspicious circumstances. First of all, incorrect recitals of essential facts are found in the document of Will and apart from that, disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason. Admittedly, the executant was having two sons and out of which, first son was not having male issues and the first son passed away and he left his wife though, his wife and two daughters were alive. Apart from that, alleged Will was executed in favour of defendant No.2 and by that time, defendant No.1 and also sister and brother were also alive and what made to execute the Will in favour of defendant No.2 has not been properly explained and the very disinheritance of the property excluding the other members of the family also gives room for suspicious circumstance and these are the factors, which have been taken note by the Trial Court as well as the First Appellate Court and this judgment is aptly applicable to the case on hand, since the very genuineness of the execution of the Will is doubtful and there are suspicious circumstances and burden lies on the defendant No.2, who propounded the Will to remove all suspicious circumstances shrouding the making of Will by cogent and convincing explanation and no such explanation is given by the defendant No.2 to accept his contention that Will was executed in his favour.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>35.<span style=\"white-space:pre\">	</span>The other judgment relied upon by the learned counsel appearing for the respondents is also applicable to the facts of the case on hand since, the very making of the Will is shrouded with suspicious circumstance as held in the judgment referred (supra) in BALATHANDAYUTHAM’s case, wherein in Para No.14, the Apex Court has discussed with regard to the Will surrounded by suspicious circumstances. In the other judgment relied upon by the learned counsel appearing for the respondents in RAMESH VERMA’s case referred (supra), the Apex Court, in Para No.13 discussed with regard to proving of execution of Will by satisfactory evidence that the Will was signed by the testator and attesting witness and not proved the Will under Sections 68 and 69 of the Evidence Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>37.<span style=\"white-space:pre\">	</span>The other judgment relied upon by the learned counsel for the appellant in VASANT H. JAYAWANT BHASME’s case, referred (supra) i.e., Para Nos.15 and 16 relied upon by the counsel is with regard to the examination of attesting witnesses and those persons, who are having acquaintance with the signature of the attesting witnesses can speak. But, in the case on hand, though examined some of the witnesses, they failed to prove the Will in terms of Section 69 of the Evidence Act. Hence, I do not find any merit in the appeal to reverse the concurrent findings of the Trial Court as well as the First Appellate Court. Therefore, I answer first substantial question of law framed by this Court as ‘affirmative’ and second substantial question of law as ‘negative’.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The appeal is dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fa8e0625fa7a31c10ec636240818590b.JPG', '735839c0550f0b8f8126e1522592442e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-11', 1, '', '', '2023-04-10 14:23:48', '2023-04-11 10:34:11'),
(2886, 'rDzZKvBC2pSsW4n8CtsM8QB0s', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Cooperative Societies Act. Special Officer cannot be appointed on the ground of resignation of directors without waiting for 15 days period prescribed under Section 29(B) to withdraw the resignations. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>T N Shivaraju and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 6419 of 2023 decided on 27 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The grievance of the petitioner is that a Special Officer has been appointed in respect of respondent No.4-Society without waiting for 15 days period prescribed under Section 29(B) of the Karnataka Co- operative societies ACT, 1959 (for short ‘KCS ACT’).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space:pre\">	</span>The short question that would arise for consideration of this Court in the present matter is whether the non-obstante clause in subsection (1) of Section 31 can confer power on respondent No.3 to be exercised dehors the requirement under Section 29B of the KCS Act?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>Section 29B of the KCS Act is reproduced hereunder for easy reference; 29B. Resignation of member of a board or office- bearer of a Co-operative Society.-<i> A member of the board of a Co-operative Society or an office-bearer of a Co-operative Society, may resign his membership of the board or as an office-bearer of a society, as the case may be, in writing under his hand addressed to the Chief Executive and it shall become vacant on the expiry of fifteen days from the date of such communication unless within the said period of fifteen days such member of the board or office bearer withdraws such resignation in writing under his hand and addressed to the Chief Executive. The Chief Executive shall place the letter of resignation before the meeting of the board convened next after the communication of such letter. If the member who has resigned, is a nominated member of the society, the chief executive shall inform the nominating society immediately on receipt of the resignation letter.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>A perusal of the above provision would indicate that any member of the Board of a Co-operative Society or office bearer may resign his membership in writing in his hand addressed to Chief Executive but further provides that the said post shall became vacant on the expiry of 15 days from the date of such communication unless within the said period of 15 days, such member of the Board or Office Bearer withdraws such resignation in writing under his hand addressed to Chief Executive.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>In the present case, what is of relevance is resignation and not a disqualification, death or removal. The resignation as held above would come into effect if it is not withdrawn within 15 days, in the present case the resignation having been submitted on 6.3.2023 has been withdrawn by petitioners No.7 and 8 on 8.3.2023. Therefore, the said resignation is ineffectual; when it is ineffectual, the question of exercise of power under sub-section (1) of Section 31 will not arise since the required number to form a quorum continues to exist on account of the withdrawal of the resignation. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>The contention of learned AGA by relying upon the non-obstante clause in subsection (1) of Section 31 that the Registrar may appoint a Special Officer notwithstanding anything contained in the Act, Rules or Byelaws for a period not exceeding six months is a power vested with a Registrar of Co-operative Societies to be exercised judiciously by applying his mind and if circumstance so demand, the said power cannot be exercised arbitrarily at the whims and fancies of the Registrar. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>Be that as it may, any order passed by exercising the powers under the non-obstante clause would necessarily have to be coupled with reasons as to why a Special Officer is appointed to a Co-operative Society. In the present matter, it can be clearly seen from Annexure-C that the Special Officer has been appointed only on account of there being a resignation submitted by some of the members and not for any other reasons. Thus, the exercise of powers under sub-section (1) of Section 31 made by respondent No.3 is under the first portion of the sub- section (1) of Section 31 and not under the non- obstante clause. Having held that the resignation had not become effectual, Respondent No.3 would not have the power to exercise on 6.3.2023 to appoint a Special Officer, since respondent No.3 would derive such power to exercise only after the expiry of 15 days of the resignation being submitted in terms of Section 29B of the KCS Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 15.<span style=\"white-space:pre\">	</span>The resignation having been submitted on 6.3.2021, the resignation would have come into effect on 21.3.2023 if not withdrawn before that date. The moment resignation is withdrawn the powers under sub-section (1) of Section 31 cannot be exercised. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>The last contention of the learned AGA is that there is an alternative and efficacious remedy in terms of Clause (e1) of sub-Section (1) of Section 106. An alternative and efficacious remedy needs to be efficacious in nature, and the order which is challenged should have been passed by the authority having jurisdiction to do so. In view of my above finding that there was no power which could be exercised under sub-Section (1) of Section 31 by respondent No.3 the said order being without jurisdiction, I am of the considered opinion the said alternative remedy is not an efficacious one.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space:pre\">	</span>The writ petition is allowed. </b><br></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3bc94d9b52f75a286c8616fb5f3e8cdf.JPG', '96ecbba7b2fc3cef2d90118c075fd3f5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-11', 1, '', '', '2023-04-10 15:26:23', '2023-04-11 03:22:44'),
(2887, 'SKNTdiOfSH9ZyegV5TtKcJ3sa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Amendment brought to Section 153C of the Income Tax Act, 1961 vide Finance Act, 2015 would be applicable even to searches conducted under Section 132 of the Act, 1961 before 01.06.2015. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Income Tax Officer Vs Vikram Sujitkumar Bhatia.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 911 of 2022 decided on 6 April 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice M.R. Shah and Justice B.V. Nagarathna.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">1. Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 02.04.2019 passed by the High Court of Gujarat in Special Civil Application No. 18777 of 2018 and other connected matters, as well as the impugned judgment(s) and order(s) passed by the High Court of Gujarat in other special civil applications relying upon its earlier decision in the aforesaid case, whereby the High Court has quashed the notice under Section 153C of the Income Tax Act, 1961 (hereinafter referred to as “Act, 1961”) issued to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respondent – assessee - respondents herein and set aside consequent Assessment Orders (where assessment stood completed) by holding that Section 153C of the Act, 1961 (as amended by Finance Act, 2015) would not apply to searches under Section 132 of the Act, 1961 initiated before the date of amendment, the Revenue has preferred the present appeals.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">7. The question of law that arises for consideration of this Court is:-</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">“Whether the amendment brought to Section 153C of the Income Tax Act, 1961 vide Finance Act, 2015 would be applicable to searches conducted under Section 132 of the Act, 1961 before 01.06.2015, i.e., the date of amendment?”<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">8. While considering the aforesaid question and the submissions made on behalf of the respective parties, a few facts, which are necessary for determination of the question are required to be referred to, which are as under:-</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(i) That a search under Section 132 of the Act, 1961 was conducted at the various premises of one H.N. Safal Group on 04.09.2013. When the search came to be conducted, Section 153C as it stood then (pre amendment 2015) was applicable.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(ii) Section 153C as it stood then provided that “Notwithstanding anything contained in Sections 139, 147, 148, 149, 151 and 153, where the Assessing Officer is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">seized or requisitioned “belongs or belong to” a person other than the person referred to in Section 153-A, then, the books of account or documents or assets seized or requisitioned shall be handed over to the Assessing Officer having jurisdiction over such other person and that Assessing Officer shall proceed against such other person and issue such other person notice and assess or reassess income of such other person in accordance with the provisions of Section 153A. It also further provided that in case of such other person, the reference to the date of initiation of the search under Section 132 or making of requisition under Section 132-A in the second proviso to sub-section (1) of Section 153-A shall be construed as reference to the date of receiving the books of account or documents or assets seized or requisitioned by the Assessing Officer having jurisdiction over such other person.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(iii) During the course of search, various incriminating material / documents were found and seized. Upon verification of such seized material, it was noticed that certain documents pertained / related to the respondent herein, who is other than the searched person. Accordingly, satisfaction to that extent was recorded by the Assessing Officer of the searched person with respect </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to the respondents – assessees (other than the searched person) on 25.04.2017. That the said satisfaction note alongwith the incriminating material was forwarded to the Assessing Officer of the non-searched person on 25.04.2017. That, thereafter, the Assessing Officer of the respondents – assessees (non-searched persons) after verifying the seized material, found certain incriminating material against them and the cash entries, which were not declared in the original return filed. Accordingly, the Assessing Officer of the respondents recorded his independent satisfaction and issued notice under Section 153C on 04.05.2018.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">(v) Thus, at the time when the satisfaction note came to be recorded by the Assessing Officer of the searched person on 25.04.2017 as well as by the Assessing Officer of the respondents – assessees (non-searched persons) on 04.05.2018, Section 153C (as amended by Finance Act, 2015 w.e.f. 01.06.2015) became applicable. The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">notice under Section 153C against the non-searched persons on the basis of the material seized during the search conducted at the various premises of H.N. Safal Group (searched person) and the assessment orders were the subject matter of appeal before the High Court.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. In light of the aforesaid facts, the question of law, which arises for consideration of this Court is, “Whether amendment brought to Section 153C of the Income Tax Act, 1961 vide Finance Act, 2015 would be applicable to searches conducted under Section 132 of the Act, 1961 before 01.06.2015, i.e., the date of amendment”, is required to be considered</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">10.2 At this stage, the first proviso to Section 153C of the Act, 1961 is required to be referred to. The first proviso to Section 153C of the Act, 1961 came to be inserted vide Finance Act, 2005 with retrospective effect from 01.06.2003, which provides that the reference to the date of initiation of the search under Section 132 or making of requisition under Section 132-A in the second proviso to sub-section (1) of Section 153-A shall be construed as a reference to the date of receiving the books of account or documents or assets seized or requisitioned by the Assessing Officer having jurisdiction over such other person. </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">10.3 Thus, as per the proviso to Section 153C as inserted vide Finance Act, 2005, and the effect of the said proviso is that it creates a deeming fiction wherein any reference made to the date of initiation of search is deemed to be a reference made to the date when the Assessing Officer of the non-searched person receives the books of account or documents or assets seized etc. Thus, in the present case, even though the search under Section 132 was initiated prior to the amendment to Section 153C w.e.f. 01.06.2015, the books of account or documents or assets were seized by the Assessing Officer of the non-searched person only on 25.04.2017, which is subsequent to the amendment, therefore, when the notice under Section 153C was issued on 04.05.2018, the provision of the law existing as on that date, i.e., the amended Section 153C shall be applicable.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">10.8 Insofar as the submission on behalf of the respective respondents – assessees that by way of amendment to Section 153C by Finance Act, 2015, it brings into its fold, the assessees – persons, who were not so far covered by it and, therefore, it affects the substantive rights of the assessees and, hence, it should not be made applicable retrospectively, is concerned, the submission seems to be attractive but deserves to be rejected. As observed hereinabove, even the unamended Section 153C pertains to the assessment of income of any other person. The object and purpose of Section 153C is to address the persons other than the searched person. Even as per the unamended Section 153C, the proceeding against other persons (other than the searched person) was on the basis of the seizure of books of account or documents seized or requisitioned “belongs or belong to” a person other than the searched person. However, it appears that as in the case of Pepsico India Holdings Private Limited (supra), the Delhi High Court interpreted the words “belong to” restrictively and/or narrowly and which led to a situation where, though incriminating material pertaining to a third party / person was found during search proceedings under Section 132, the Revenue could not proceed <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">against such a third party, which necessitated the legislature / Parliament to clarify by substituting the words “belongs or belong to” to the words “pertains or pertain to” and to remedy the mischief that was noted pursuant to the judgment of the Delhi High Court. Therefore, if the submission on behalf of the respective respondents – assessees that despite the fact that the incriminating materials have been found in the form of books of account or documents or assets relating to them from the premises of the searched person, still they may not be subjected to the proceedings under Section 153C solely on the ground that the search was conducted prior to the amendment is accepted, in that case, the very object and purpose of the amendment to Section 153C, which is by way of substitution of the words “belongs or belong to” to the words “pertains or pertain to” shall be frustrated. As observed hereinabove, any interpretation, which may frustrate the very object and purpose of the Act / Statute shall be avoided by the Court. If the interpretation as canvassed on behalf of the respective respondents is accepted, in that case, even the object and purpose of Section 153C namely, for assessment of income of any other person (other than the searched person) shall be frustrated.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">11. In view of the above and for the reasons stated above, the impugned common judgment and order passed by the High Court is held to be unsustainable and the question, i.e., “Whether the amendment brought to Section 153C of the Income Tax Act, 1961 vide Finance Act, 2015 would be applicable to searches conducted under Section 132 of the Act, 1961 before 01.06.2015, i.e., the date of amendment?”, is answered in favour of the Revenue and against the assessees and is answered accordingly. Therefore, it is observed and held that the amendment brought to Section 153C of the Act, 1961 vide Finance Act, 2015 shall be applicable to searches conducted under Section 132 of the Act, 1961 before 01.06.2015, i.e., the date of the amendment. The impugned common judgment and order passed by the High Court, therefore, deserves to be quashed and set aside and is accordingly quashed and set aside. However, as before the High Court respective assessment orders were challenged mainly on the aforesaid issue, which is now answered in favour of the Revenue as above, we reserve the liberty in favour of the respective assessees to challenge the assessment orders before CIT (A) on any other grounds which may be available and it is observed that if said appeals are <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">preferred within four weeks from today, the same be considered in accordance with law and on their own merits, on any other grounds.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">Present appeals are accordingly allowed in terms of the above. However, in the facts and circumstances of the case, there shall be no order as to costs.</span></span></span></p>', '388698023b4ef43b8b839e648f925c48.jpeg', '2d7c694d06eedbe1fce2bba9adc5391d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-11', 1, '', '', '2023-04-10 15:28:20', '2023-04-11 06:46:03');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2892, 'CSGmKlxDOsHM8nOGN89vGi0SE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Section 4 of the Limitation Act excluding last day falling on a public holiday is not applicable to the 30 days’ discretionary condonable period under Section 34(3) of the Arbitration Act. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bhimashankar Sahakari Sakkare Karkhane Niyamita Vs Walchandnagar Industries Ltd.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 6810 of 2022 decided on 10 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice Krishna Murari.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 23.02.2022 passed by the High Court of Karnataka, at Kalaburagi in Misc. First Appeal No.201018/2018 by which the High Court has dismissed the said appeal and has confirmed the order dated 02.04.2018 passed by the learned III Additional District & Sessions Judge, Vijayapur (hereinafter referred to as “trial Court”) in rejecting the application for condonation of delay caused in preferring the application under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “Arbitration Act”) , the original applicant has preferred the present appeal. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The brief facts leading to filing of the present appeal in nut­shell are as under: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.1 That, an arbitral award was passed against the appellant under the provisions of the Arbitration Act on 24.08.2016. As per Section 34(3) of the Arbitration Act, 90 days are prescribed for preferring an application under Section 34 of the Arbitration Act against the arbitral award. However, the said period was extendable by a further period of 30 days in terms of the proviso to Section 34(3) of the Act, 2016. In the present case, the period of 90 days prescribed under Section 34(3) of the Arbitration Act expired on 24.11.2016. The appellant was entitled to a further extended period of 30 days from 23.11.2016 onwards in terms of the proviso to Section 34(3) which was upto 24.12.2016. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.2 The trial Courts were closed on account of winter / Christmas vacations from 19.12.2016 to 01.01.2017. However, it so happened that extendable / condonable period of 30 days as contemplated in the proviso to Section 34(3) expired on 24.12.2016 on which day the trial Court was closed on account of winter / Christmas vacation. The appellant herein filed the application under Section 34 of the Arbitration Act, challenging the award passed by the Arbitral Tribunal. The appellant also filed IA No.1 for condonation of delay. Both, Section 34 application as well as the application for condonation of delay were filed on the reopening day i.e. on 02.01.2017. As the application under Section 34 of the Arbitration Act was beyond the prescribed period of provided under Section 34 of the Arbitration Act as well as beyond the condonable period of 30 days, the learned trial Court dismissed the IA No.1 and refused to condone the delay by observing that the period beyond 120 days is not condonable as under the Arbitration Act, maximum period provided for preferring an application under Section 34 is 120 days. At this stage it is required to be noted that in the affidavit filed by the appellant before the High Court, filed in support of IA No.1, the appellant as such admitted that it received the copy of the award on 24.08.2016. However, according to the appellant, the said award was misplaced and thereafter obtained a fresh copy on 29.12.2016. The learned trial Court observed that in that view of the matter, the period of limitation would commence from 24.08.2016 and 120 days are to be counted from 24.08.2016. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.3 Feeling aggrieved and dissatisfied with the order passed by the learned trial Court refusing to condone the delay in preferring application under Section 34 of the Arbitration Act, the appellant herein preferred an appeal before the High Court. 2.4 Before the High Court, Section 4 of the Limitation Act, 1963 and Section 10 of the General Clauses Act, 1897 were pressed into service. By the impugned judgment and order the High Court has dismissed the said appeal by observing that the expression “prescribed period” appearing in Section 4 of the Limitation Act cannot be construed to mean anything other than the period of limitation and therefore, any period beyond the prescribed period, during which the Court or Tribunal has the discretion to allow a person to institute the proceeding, cannot be taken to be “prescribed period”. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. Having heard learned Counsel appearing for the respective parties, a short question which is posed for consideration of this Court is whether in the facts and circumstances of the case, the learned trial Court was justified in not condoning the delay in preferring the application under Section 34(3) of the Arbitration Act, which was filed after the expiry of 120 days but filed on the first day of reopening after the winter / Christmas vacation and in a case where the condonable period of 30 days under Section 34(3) of the Arbitration Act had fallen during the winter / Christmas vacation ? The question is with respect to applicability of Section 4 of the Limitation and Section 10 of the General Clauses Act, 1897 in the facts and circumstances of the case. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Therefore, the central question in the present appeal is whether when the last day of condonable period of 30 days (under Section 34(3) of the Arbitration Act) falls on holiday or during the Court vacation, would the benefit of Section 10 of the General Clauses Act, 1897 be available? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7.1 Section 34(3) of the Arbitration Act and Sections 2(j) and 4 of the Limitation Act, 1963 fell for consideration before this Court in the case of Assam Urban (Supra). Even the very issue raised in the present appeal fell for consideration before this Court in the case of Assam Urban (Supra). In the aforesaid decision, this Court interpreted the aforesaid provisions and has specifically observed and held that the benefit of exclusion of period during which Court is closed is available only when application for setting aside the award is filed within ‘prescribed period of limitation’ and it is not available in respect of period extendable by the Court in exercise of its discretion.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">8. Now, so far as the submission on behalf of the appellant that the Limitation Act shall not be applicable to the proceedings under the Arbitration Act is concerned, the aforesaid has no substance. Section 43(1) of the Arbitration Act specifically provides that Limitation Act, 1963 shall apply to arbitrations as it applies to proceeding in Court. However, as observed and held by this Court in the case of Assam Urban (Supra), Limitation Act, 1963 shall be applicable to the matters of arbitration covered by 1996 Act save and except to the extent its applicability has been excluded by virtue of express provision contained in Section 34(3) of the Arbitration Act. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. Now, so far as reliance placed upon Section 10 of the General Clauses Act, 1897 on behalf of the appellant is concerned, at the outset it is required to be noted that such a contention is untenable in light of the proviso to Section 10 of the General Clauses Act, 1897, which specifically excludes the application of Section 10 of the General Clauses Act, 1897 to any act or proceeding to which the Indian Limitation Act, 1877 applies. Reference to 1877 Act will now have to be read as reference to Limitation Act, 1963 in view of Section 8 of the General Clauses Act, 1897. Therefore, in light of the application of Limitation Act, 1963 to the proceedings under the Arbitration Act and when Section 10 of the General Clauses Act, 1897 specifically excludes the applicability of Section 10 to any act or proceeding to which Indian Limitation Act, 1963 applies and in light of the definition of “period of limitation” as defined under Section 2(j) read with Section 4 of the Limitation Act and as observed and held by this Court in the case of Assam Urban (Supra), benefit of exclusion of period during which the Court is closed shall be available when the application for setting aside award is filed within “prescribed period of limitation” and shall not be available in respect of period extendable by Court in exercise of its discretion. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10. Now, so far as the reliance placed upon the decision of this Court in the case of Sridevi Datla vs. Union of India reported in (2021) 5 SCC 321 relied upon on behalf of the appellant is concerned, at the outset it is required to be noted that in the said decision, this Court has not noticed the decision in the case of Assam Urban (Supra) and there is no discussion on distinction between “prescribed period” and the “discretionary condonable period”. On the other hand, the binding decision of this Court in the case of Assam Urban (Supra) is directly on point. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. In view of the above and for the reasons stated above, applying the law laid down by this Court in the case of Assam Urban (Supra), it cannot be said that the High Court and the learned III Additional District & Sessions Judge, Vijaypur have committed any error in refusing to condone the delay caused in preferring application under Section 34 of the Arbitration and Conciliation Act, 1996 which was beyond the period prescribed under Section 34(3) of the Arbitration and Conciliation Act, 1996. Under the circumstances, the present Appeal deserves to be dismissed and is, accordingly, dismissed. In the facts and circumstances of the case, there shall be no order as to costs. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a332513ece480774ae1c5feec3829a49.jpeg', 'f6b4f9789ed2a623cf8aae90ac7645d2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-12', 1, '', '', '2023-04-11 15:06:52', '2023-04-12 07:07:17'),
(2893, 'gbvgJ88n7U9cl2i1lqaFQRHqa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Keep your house in order so that common man does not bear the brunt of unnecessary litigation.” Karnataka High Court orders grant of interest to HUF in the Post Office Public Provident Fund Scheme deposit. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shankarlal Vs The Postmaster and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 2042 of 2023 decided on 31 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is before this Court calling in question direction issued by the 1st respondent dated 23-09-2021 holding that the petitioner would not be entitled to any interest on the deposit made by him in the Public Provident Fund Scheme.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Facts adumbrated are as follows:- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner desirous of opening an account in the name of Hindu Undivided Family (‘HUF’ for short) in the Public Provident Fund Scheme (‘the Scheme’ for short) opened an account through an agent of the Provident Fund Organization who deals with such matters. The account was opened on 03.09.2009 and the maturity date of the said account is on 31.03.2025. The petitioner without fail has made deposits into the account which is now worth at `12,96,412/- inclusive of interest applicable under the said Scheme. After about 12 years of opening of the account on 23-09-2021, the 1st respondent/ Postmaster HSG-I, India Post communicates to the petitioner observing that the petitioner has opened a PPF account under the Scheme in the capacity of HUF after 31-05-2005. Hence, it was treated as an account that was irregularly opened and had to be closed without interest and issues a communication to the 2nd respondent as well to communicate to the petitioner that the account would be carrying no interest.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>The petitioner replies to the said communication on 04-10-2021 to settle the amount along with interest as the petitioner was not aware of any policy of Government and was neither made aware of the same by officers of the Post Office at the time of opening of the account or remittances to the account. The respondents declined to accede to the request of the petitioner which resulted in causing a legal notice upon the respondents to pay the deposited amount with applicable rate of interest along with damages. After receipt of the legal notice, the 2nd respondent on 10-06-2022 issues instructions to close the PPF accounts which are opened in HUF capacity in the office of the 1st respondent including that of the petitioner. It is these actions that drive the petitioner to this Court in the subject petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>The afore-narrated facts are not in dispute. The Government of India through the 1st respondent had notified a Scheme called the Public Provident Fund Scheme, 1968. The Scheme was available for opening of accounts by HUF. The Scheme insofar as it concerns investments by HUF was subsisting up to 13-05-2005. On 13-05-2005 Government of India notifies Public Provident Fund (Amendment) Scheme 2005 by which the words “or a Hindu Undivided Family or an Association of persons” were omitted. Therefore, from 13-05-2005 no PPF account could be opened by an HUF. The amendments were notified and the amended Scheme was brought into effect.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>The respondents/authorities have filed detailed statement of objections justifying the action of treating the account as irregular and closing the account without interest. If the dates and link in the chain of events are noticed what would unmistakably emerge is that the petitioner is no way responsible for the fault of the respondents/authorities. At the outset it was an agent who facilitated opening of the account; the account was opened. For 12 long years, the petitioner had deposited money into the account under the Scheme as HUF. After receiving the amounts for 12 years into the said account with eyes wide open, knowing full well that the Scheme has been amended and opening of the account itself was irregular, no fault can be laid at the doors of the petitioner.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 12.<span style=\"white-space:pre\">	</span>If the authorities, who are to be aware of amendment of the Scheme, as also the fact that no HUF account could be opened under the Scheme, if have permitted to open and operate the account for 12 years, the petitioner, a common man cannot be blamed that too after 12 years of opening of the account. The 1st and 2nd respondents could not have permitted opening of the account and further could not have permitted deposits into the account for 12 long years. Having kept quiet, all along cannot pass the buck upon the petitioner and make the account irregular and deny interest for the investment. The petitioner desirous of accumulating money for his daughter’s marriage opened the account and continues investment into the account. The action of the respondents in denying interest on the said investment comes as a rude shock to the petitioner. . The action of the respondents in denying interest and directing closure of the account holding it to be irregular does not behoove its status being a State under Article 12 of the Constitution of India, as the impugned action is far from fairness.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>14.<span style=\"white-space:pre\">	</span>In the light of unequivocal facts as narrated hereinabove and the judgment of the Apex Court in the case of BHAGWATI VANASPATHI TRADERS (supra), the petition deserves to succeed, albeit, in part. The petitioner would be entitled to interest under the Scheme, only up to the date on which the communication comes to the petitioner i.e., 23-09-2021. On and from 23-09-2021 the account of the petitioner till its maturity shall carry interest at the scheduled Banks lending rate and not the rate of interest under the Scheme. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>15.<span style=\"white-space:pre\">	</span>Parting observation in the facts and circumstances of the case would not be inapt. The 1st and 2nd respondents should set their house in order. In this digital age it is necessary that 1st and 2nd respondents update themselves with regard to such accounts and not wake up from slumber after several years and penalize the investors. The investor, as in the case at hand, is a common man and would not know the prevailing law. He was only interested in investment and in return wants to have interest on such investment. It is for the Authorities to detect such accounts which are opened irregularly as soon as they are opened, on intermittent scrutiny of the accounts and inform such investors immediately, failing which, the Officers who manage such accounts should be held responsible and accountable for such dereliction of duty. It is necessary for the respondents to issue these instructions to all the Post Offices who handle such accounts, so that the common man does not bear the brunt of unnecessary litigation.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(i)<span style=\"white-space:pre\">	</span>Writ Petition is allowed in part.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9f87a9b5469cafe58e4cfa9b101d5c5a.jpeg', '4aac5ba66a3c7420aacd4144374c1f4d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-12', 1, '', '', '2023-04-11 15:37:46', '2023-04-12 12:26:47'),
(2894, 'Mt2HKTYvVEmunM3nvEQrp9bcd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Insurance against acts of fraud or dishonesty committed by agent. Issuance of a fake bank guarantee by agent is a dishonest act and hence covered under the Insurance Policy. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>National Textile Corporation Ltd Vs United India Insurance Co Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R.F.A 1074 of 2010 decided on 14 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P.S. Dinesh Kumar and Justice T.G. Shivashankare Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2.<span style=\"white-space: pre;\">	</span>Brief facts of the case are, plaintiff, NTC1 is a Government of India undertaking. NTC and second defendant entered into a Depot Agreement dated January 01, 2000, where under second defendant had given a cash security deposit of Rs.4,00,000/- and a bank guarantee for a sum of Rs.13,00,000/- in favour of NTC from Vijaya Co-operative Bank Limited, Ashram Road, Ahmedabad. NTC also obtained “Special Contingency Insurance Policy” (hereinafter referred to as ‘the Policy’) for the period from April 1, 2000 to March 31, 2001 from first defendant- United Insurance Company (hereinafter referred to as ‘insurer’) for Rs.2,85,00,000/- to cover against any loss or damages to its property at any time during the currency of respective agreements with various depot keepers.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>NTC’s case is, second defendant was appointed as depot keeper for the State of Gujarat for sale of mill yarns subject to the control and approval by NTC. Second defendant started<span style=\"white-space: pre;\">	</span>defaulting in payments and as on August 20, 2000 a sum of Rs. 29,90,000/- was due to NTC. NTC invoked the bank guarantee. The bank did not honour the same on a ground that it was a fake one. NTC adjusted the security deposit of Rs.4,00,000/- and lodged a complaint before the concerned jurisdictional police station. It also filed a claim before the insurer to pay the loss suffered. The insurer refused to settle the claim on the ground that the claim is inadmissible. With these averments, NTC has brought the instant suit with a prayer inter alia to direct the defendants to pay a sum of Rs.25,00,000/- along with interest from the date of rejection of claim till the date of payment.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>In the light of the above pleadings on record and the contentions urged, following points arise for our consideration: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(1)<span style=\"white-space:pre\">	</span>Whether NTC is entitled for the insurance claim from the insurer?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (2)<span style=\"white-space:pre\">	</span>If point no.1 is in the affirmative, then what shall be the amount payable by the insurer?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (3)<span style=\"white-space:pre\">	</span>Whether the impugned judgment and decree requires any interference?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Re. Point No. 1: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>Undisputed facts of the case are, second defendant was appointed as a depot keeper. He had furnished cash security deposit of Rs.4,00,000/- and a bank guarantee of Rs.13,00,000/-. The bank guarantee turned out to be a fake one. NTC had taken the Policy for loss and damage occurring due to dishonest or criminal act of depot keeper. The Policy was valid from April 1, 2000 to March 31, 2001 for a sum of Rs.2,85,00,000/-. For non-payment of dues by second defendant as on August 20, 2000, NTC lodged a claim with the insurer for a sum of Rs. 25 Lakhs and the insurer repudiated the claim on the ground that it was a trade loss.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25.<span style=\"white-space:pre\">	</span>In the present case, NTC is a Government of India undertaking having several branches across the country. It has appointed various depot keepers. It is impractical to expect NTC to verify the genuineness of every bank guarantee and it is for the said reason NTC has taken the Policy. The insurer has covenanted to indemnify the NTC against any loss or damage occurring due to fraud or criminal act on the part of the depot keepers.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>26.<span style=\"white-space:pre\">	</span>In our considered view, issuance of a fake bank guarantee by second defendant is a dishonest act and therefore, covered by the Policy. Hence, NTC shall be entitled for the insurance claim from insurer. Accordingly, this point is answered in the affirmative.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>Re. Point No. 2: </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>27.<span style=\"white-space:pre\">	</span>NTC has claimed a sum of Rs.25 Lakhs from the insurer being the loss occurred on account of fraudulent act by the depot keeper.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b> 28.<span style=\"white-space:pre\">	</span>As per the Policy, the insurer shall be liable to indemnify the insured against a direct pecuniary loss sustained by reason of act of fraud or dishonesty committed on or after the date of commencement of the Policy and during the currency of the Policy.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>29.<span style=\"white-space:pre\">	</span>A careful perusal of Ex. P3 shows that there was total outstanding of Rs.29.90 Lakhs payable by the depot keeper as on February 08, 2001. The Bank guarantee was issued on January 01, 2000 for Rs. 13 Lakhs. If the bank guarantee were to be genuine, NTC could have recovered Rs. 13 Lakhs from the Bank. Though NTC has claimed a sum of Rs. 25 Lakhs from both the insurer and the depot keeper, in our considered opinion, insurer shall be liable to indemnify NTC upto Rs. 13 Lakhs, the amount covered by the bank guarantee. We say so because notwithstanding the contention urged by the insurer that the liability had not accrued whilst the Policy was in currency, NTC could have certainly recovered a sum of Rs.13 Lakhs by invoking the bank guarantee. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>30.<span style=\"white-space:pre\">	</span>Accordingly, we answer point no.2 holding that insurer shall be liable to pay a sum of Rs. 13 Lakhs to NTC.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>Re. Point No. 3: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>31.<span style=\"white-space:pre\">	</span>In view of the above discussion, on points no. 1 and 2, this appeal merits consideration.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>a)<span style=\"white-space: pre;\">	</span>Appeal is allowed in part.</b></font><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0d16d01e2554f31682d0d343df1bd0ff.jpeg', '5438f0cd286b7550b9381c40575c1662.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-12', 1, '', '', '2023-04-11 16:03:40', '2023-04-12 03:21:23'),
(2895, 'EWc4bQWfOFrjHcDec4yihaeWm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Satisfaction of either of the conditions i.e. taking possession of the acquired land or payment of compensation would be sufficient to save the acquisition from being lapsed in terms of Section 24(2) of the 2013 Act. Supreme Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Delhi Development Authority Vs Surender Singh and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 1548 of 2023 decided on 11 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Abhay S. Oka and Justice Rajesh Bindal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. As pleaded, notification under Section 4 of the Land\r\nAcquisition Act, 1894 (for short, “the Act\") was issued on\r\n21.03.2003 seeking to acquire land for Rohini Residential\r\nScheme at Delhi. On 19.3.2004, Notification under Section 6 of\r\nthe Act was issued. The Land Acquisition Collector announced\r\nthe award under Section 11 of the Act assessing compensation\r\nfor the acquired land on 12.7.2005. The compensation amount\r\nof ? 80,40,76,004/- for the acquisition of the land was\r\ndeposited by the State with the Land Acquisition Collector.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. A writ petition was filed in the High Court invoking\r\nSection 24(2) of the Right to Fair Compensation and\r\nTransparency in Land Acquisition, Rehabilitation and\r\nResettlement Act, 2013 (for short “ 2013 Act”) claiming that\r\nthe acquisition in question has lapsed since neither possession\r\nhas been taken nor the compensation therefor has been paid.\r\nThe definite stand of the State before the High Court was that\r\nthe possession of the land was taken on 31.08.2005 and\r\nhanded over to the Delhi Development Authority for planned\r\ndevelopment of Delhi. The title of the writ petitioners was in\r\ndispute. Hence, the compensation could not be paid to them.\r\nIt was deposited with the Land Acquisition Collector. The High <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court after relying upon the judgment of this Court in Govt. of\r\nNCT of Delhi vs. Manav Dharma Trust and another’s\r\n(2017) 6 SCC 751 held that petitioner therein had locus to file\r\nthe writ petition though not being the recorded owner. It\r\nfurther relied upon the judgment of this Court in Pune\r\nMunicipal Corporation & another v. Harakchand\r\nMisirimal Solanki & Ors. (2014) 3 SCC 183 and held that the\r\nacquisition has lapsed as the compensation had not been paid\r\nto the land owners. Though, the issue of title of the land was\r\nleft open.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. The Constitution Bench of this Court in Indore\r\nDevelopment Authority\'s case (supra) had opined that\r\nsatisfaction of either of the conditions namely either taking\r\npossession of the acquired land or payment of compensation to\r\nthe landowners would be sufficient to save the acquisition from\r\nbeing lapsed in terms of Section 24(2) of the 2013 Act. Various\r\nquestions posed before the Constitution Bench of this Court\r\nwere also answered. Relevant para-Nos. 362 and 366 are\r\nextracted below:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“362. Resultantly, the decision rendered in\r\nPune Municipal Corporation & Anr. (supra) is\r\nhereby overruled and all other decisions in which\r\nPune Municipal Corporation (supra) has been\r\nfollowed, are also overruled. …</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>366. In view of the aforesaid discussion, we\r\nanswer the questions as under:</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span lang=\"EN-US\">366.1. Under the provisions of Section 24(1)\r\n(a) in case the award is not made as on 1-1-\r\n2014, the date of commencement of the 2013\r\nAct, there is no lapse of proceedings. </span><span style=\"font-size: 12pt;\">Compensation has to be determined under the\r\nprovisions of the 2013 Act.\r\n</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><i><b>366.2. In case the award has been passed\r\nwithin the window period of five years excluding\r\nthe period covered by an interim order of the\r\ncourt, then proceedings shall continue as\r\nprovided under Section 24(1)(b) of the 2013 Act\r\nunder the 1894 Act as if it has not been repealed.\r\n</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><i><b>366.3. The word “or” used in Section 24(2)\r\nbetween possession and compensation has to be\r\nread as “nor” or as “and”. The deemed lapse of\r\nland acquisition proceedings under Section 24(2)\r\nof the 2013 Act takes place where due to inaction\r\nof authorities for five years or more prior to\r\ncommencement of the said Act, the possession\r\nof land has not been taken nor compensation has\r\nbeen paid. In other words, in case possession has\r\nbeen taken, compensation has not been paid\r\nthen there is no lapse. Similarly, if compensation\r\nhas been paid, possession has not been taken\r\nthen there is no lapse.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>366.5. In case a person has been tendered\r\nthe compensation as provided under Section\r\n31(1) of the 1894 Act, it is not open to him to\r\nclaim that acquisition has lapsed under Section\r\n24(2) due to non-payment or non- deposit of\r\ncompensation in court. The obligation to pay is\r\ncomplete by tendering the amount under Section\r\n31(1). The landowners who had refused to accept\r\ncompensation or who sought reference for higher\r\ncompensation, cannot claim that the acquisition\r\nproceedings had lapsed under Section 24(2) of\r\nthe 2013 Act.\r\n</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>366.6. The proviso to Section 24(2) of the\r\n2013 Act is to be treated as part of Section 24(2),\r\nnot part of Section 24(1)(b).<br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>366.7. The mode of taking possession under\r\nthe 1894 Act and as contemplated under Section\r\n24(2) is by drawing of inquest\r\nreport/memorandum. Once award has been\r\npassed on taking possession under Section 16 of\r\nthe 1894 Act, the land vests in State there is no\r\ndivesting provided under Section 24(2) of the\r\n2013 Act, as once possession has been taken\r\nthere is no lapse under Section 24(2).\r\n</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>366.8. The provisions of Section 24(2)\r\nproviding for a deemed lapse of proceedings are\r\napplicable in case authorities have failed due to\r\ntheir inaction to take possession and pay\r\ncompensation for five years or more before the\r\n2013 Act came into force, in a proceeding for\r\nland acquisition pending with the authority\r\nconcerned as on 1-1-2014. The period of\r\nsubsistence of interim orders passed by court\r\nhas to be excluded in the computation of five\r\nyears.\r\n366.9. Section 24(2) of the 2013 Act does not\r\ngive rise to new cause of action to question the\r\nlegality of concluded proceedings of land\r\nacquisition. Section 24 applies to a proceeding\r\npending on the date of enforcement of the 2013\r\nAct i.e. 1-1-2014. It does not revive stale and\r\ntime-barred claims and does not reopen\r\nconcluded proceedings nor allow landowners to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">question the legality of mode of taking\r\npossession to reopen proceedings or mode of\r\ndeposit of compensation in the treasury instead\r\nof court to invalidate acquisition.”</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. It is the undisputed fact on the record, as has been\r\nnoticed in the impugned orders passed by the High Court in the\r\naforesaid Civil Appeals, the possession of the land was taken\r\nover by the Land Acquisition Collector and handed over to Delhi\r\nDevelopment Authority. Hence, one of the conditions being\r\nsatisfied, we need not examine any other argument.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. Keeping in view the aforesaid fact and the law laid\r\ndown by the Constitution Bench of this Court in Indore\r\nDevelopment Authority’s case (supra), in our opinion the\r\norders passed by the High Court cannot be legally sustained\r\nand the same are accordingly set aside. The appeals are\r\nallowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The writ petitions filed by the respondents before the\r\nHigh Court are ordered to be dismissed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ab4fe6d4a931b58664605a929ce3e811.jpeg', '2c156d7124b7c95bec674289a2eb2196.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-13', 1, '', '', '2023-04-12 13:11:40', '2023-04-13 07:06:00');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2896, 'rmudGGMY1ZKYmKr18tS14qb3f', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Though sale in violation of non-alienation clause is voidable, if no action is taken against the purchaser or the sale for long time, by virtue of Section 27 of the Limitation Act, the purchaser gets his title perfected. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Thammaiah Vs Puttaiah through LRS and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R.S.A. 580 of 2017 decided on 11 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The factual matrix of the case of the appellant- plaintiff before the Trial Court while seeking the relief of declaration and consequential relief of permanent injunction and later amended for possession is that the suit schedule property originally belongs to one Muttu, S/o. Honnegowda and the same has been purchased by the plaintiff by virtue of registered sale deed dated 18.12.1972 and he was put in possession of the property. The plaintiff is the absolute owner thereof and he has improved the suit schedule property by spending huge money and has raised coconut garden and paying taxes to the concerned authority. The defendants having no manner of right, title or possession over the suit schedule property made an attempt to interfere with his possession and made an attempt to dispossess him from the suit schedule property by denying the title over the suit schedule property. Hence, suit is filed for the relief of declaration and injunction. It is also the contention of the plaintiff that, during the pendency of the appeal in R.A.No.147/2006, the defendants herein taking advantage of the fact that no injunction was granted, illegally dispossessed the plaintiff from the suit schedule property and hence, sought for the relief of possession. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>In pursuance of the suit summons, the defendants appeared and filed the written statement denying the averments made in the plaint. It is contended that the suit property was originally bearing Sy.No.8 and it belonged to one Muthaiah and his son Mahadevan and after durasth in the year 1964, it is renumbered as Sy.No.52 and the said Muthaiah and his son Mahadevan being the original owner in possession of the suit property, for their family necessity, sold the property in favour of defendant No.1 under registered sale deed dated 12.04.1991 for a valuable consideration of Rs.20,000/- and thereafter, the defendants are in possession and enjoyment of the same as absolute owners and improved the property by availing loan from the bank and constructed a pump-house and farm house and spent an amount of Rs.4,00,000/- for improvement of the suit schedule property and have grown 260 coconut trees and 450 areca nut trees and the revenue records are also standing in the name of the defendants and they have perfected their title by way of adverse possession.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>This Court, while admitting the appeal, framed the following substantial question of law: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Whether findings of the Courts below that the plaintiff has failed to prove his title over the suit schedule property since his name is not mutated to the revenue records based on the registered sale deed dated 18.12.1972 vide Ex.P1 is perverse, palpably erroneous and contrary to the settled proposition of law that in a comprehensive suit, title of a party has to be adjudicated based on the title documents and not on the basis of the revenue records?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>Having secured the records from the Trial Court and in view of framing of substantial question of law, this Court has heard the arguments of learned counsel for the appellant and learned counsel for the respondents. The learned counsel for the appellant would vehemently contend that, it is not in dispute that land was granted in favour of Muttu on 07.06.1962 and the same is also not disputed by the defendants. It is the specific contention of the appellant-plaintiff that he had purchased the property on 18.12.1972 and after 18 years, one more sale deed was executed by the same vendor in favour of the defendants on 17.04.1991. The counsel would vehemently contend that both the Courts committed an error in appreciating both oral and documentary evidence placed on record and if there is any violation of non-alienation clause, under Rule 25 of the Karnataka Land Grant Rules,1969, the concerned authority can take decision to get back the property and the same has not been done till this date. The counsel also would submit that the property was granted in the year 1962 and sale was made in favour of the plaintiff in the year 1972 and after the plaintiff has purchased the property in the year 1972, sale deed was executed in favour of the defendants after 18 years and Section 27 of the Limitation Act extinguishes the right of the original vendor as well as the competent authority.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>It is the case of the plaintiff also that, when the defendants had purchased the property in the year 1991, they started to interfere with the possession of the plaintiff and he also got amended the plaint contending that, during the pendency of the appeal, he was dispossessed from the property. It is also important to note that the defendants also claim adverse possession contending that they are in possession of the property and the sale was made in favour of the defendants in the year 1991 and the suit was filed in the year 1998 within a span of 6 years and the Trial Court also rightly comes to the conclusion that the defendants failed to prove the factum of adverse possession.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 21.<span style=\"white-space:pre\">	</span>It is also not in dispute that the suits are re- numbered for want of jurisdiction but, both the Courts failed to take note of the sale deed executed in favour of the plaintiff in the year 1972 itself. No doubt, the said sale deed is within the period of non-alienation clause but, immediately after the period of non-alienation clause, the plaintiff gets right in respect of the suit schedule property and this Court also, in the judgment referred (supra) in GAVI SIDDE GOWDA’s case held that the grantee who held title over the land sold the same in violation of the non-alienation clause and thereby, the transferee acquired a voidable title. It is further held that the transferee remained on the land for an uninterrupted and continuous period of more than 12 years. Therefore, irrespective of the sale effected pursuant to a registered sale deed, since the grantee who acquired title initially, took no steps to dispossess the petitioner for a period of twelve years, he by virtue of the provisions contained under Section 27 of the Limitation Act, 1963, lost his right to the property and thereby, his title in the land extinguished. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">22.<span style=\"white-space:pre\">	</span>In the case on hand also, when he had sold the property, he kept quite for a period of 18 years and sale was made in the year 1982 and once again, he has sold the property in favour of the defendants in the year 1991 after 18 years and hence, the principles laid down in the judgment referred (supra) is aptly applicable to the facts of the case on hand and also he had not approached the authority that sale deed was executed in violation of the condition and also competent authority not invoked Rule 25 of the Karnataka Land Grant Rules to take back the property. Hence, Section 27 of the Limitation Act, 1963 and Rule 25 of the Karnataka Land Grant Rules are aptly applicable to the facts of the case on hand since, both the vendor as well as the competent authority have not invoked Rule 25 and sale was also not questioned by the vendor and as a result, their right is extinguished under Section 27 of the Limitation Act, 1963.<br></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24.<span style=\"white-space: pre;\">	</span>It is also important to note that this Court also framed the substantial question of law that revenue records cannot confer any title and the Division Bench of this Court also in the judgment referred (supra) in the case of SRI R.A. PRADEEP held that, even if by virtue of a mutation entry, the name of a person is entered in revenue records in respect of an immovable property, it does not confer any right, title and interest on the said person. Even if the name of a person appearing in the revenue record is removed, it does not extinguish the right, title and interest, if any, vesting in him in respect of the property. The mutation or revenue entries are made only for fiscal purposes for deciding the liability to pay land tax or land revenue. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25.<span style=\"white-space: pre;\">	</span>In the case on hand also, the Trial Court as well as the First Appellate Court given more importance to the revenue entries and comes to the conclusion that cancellation of the name of the plaintiff in the revenue records has not been challenged and the judgment of the Division Bench of this Court is aptly applicable to the case on hand, even if the name of a person appearing in the revenue record is removed, it does not extinguish the right, title and interest, if any, vesting in him in respect of the property. In the case on hand, the sale deed was executed in 1972 and in the same year, the property was transferred in the name of the plaintiff in terms of Exs.P2, P3 and P4 i.e., mutation as well as RTCs but, the same has been removed subsequently and that removal does not extinguish the right, title or interest of the plaintiff over the suit schedule property since, he had acquired the property by purchasing the same in terms of the sale deed at Ex.P1. The revenue entries do not decide the issue of title in respect of the property. When such being the case, this Court has to answer the substantial question of law in favour of the appellant that both the Courts failed to consider the document of Ex.P1 i.e., sale deed dated 18.12.1972 and given more importance to the revenue entries found in the name of the vendor, even after selling the property and subsequently, on purchase of the property by the defendants, the revenue entries were transferred in the name of the defendants and the said finding of both the Courts is perverse, palpable and erroneous and contrary to the settled proposition of law that in a comprehensive suit, title of a party has to be adjudicated based on the title documents and not on the basis of the revenue records.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26.<span style=\"white-space:pre\">	</span>Admittedly, no dispute with regard to the fact that the plaintiff had purchased the property in the year 1972 and the very same vendor had sold the property in favour of the defendants in the year 1991 and once the vendor had conveyed right in favour of the plaintiff, even though there was a non- alienation clause, the same amounts to transfer of only voidable title and the same is perfected in favour of the transferee on completion of non-alienation period and the same has not been questioned either by the competent authority, who granted the property in favour of the plaintiff and so also the defendants as well as the vendor did not challenge the very title of the plaintiff which he had acquired vide sale deed dated 18.12.1972 and in terms of the sale deed dated 18.12.1972, the title confirms in favour of the plaintiff.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>30.<span style=\"white-space:pre\">	</span>Having perused both oral and documentary evidence placed on record, both the Courts have committed an error and the finding of both the Courts amounts to perversity. Hence, I answer substantial question of law framed by this Court as ‘affirmative’ and consequently, the suit filed by the plaintiff is liable to be decreed as sought in the plaint, since the material confers the title in favour of the plaintiff and not in favour of the defendants.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space:pre\">	</span>The appeal is allowed with cost.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '01b87c05bf82f195d16b5f7a8a200a02.JPG', '181e64ac494541ae96c8b162e6e1e7d0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-13', 1, '', '', '2023-04-12 13:49:05', '2023-04-13 03:19:45'),
(2897, 'xGqk3fpNUCBvYIlc7mWRGn7vK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for recovery of arrears of rent. Landlord cannot claim enhanced rent under the lease deed which requires registration but not registered. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Punjab National Bank and others Vs M/S. Srinivasa Enterprises.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular First Appeal 1307 of 2019 decided on 31 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P.S. Dinesh Kumar and Justice C.M. Poonacha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This appeal is filed under Section 96 of Code of Civil Procedure, 1908 (for short \'CPC\') by the Defendant challenging the judgment and decree dated 20.12.2018 passed in O.S. No.16840/2006 by the XXVI Additional City Civil & Sessions Judge At Mayo Hall, Bengaluru (CCH - 20) (for short \'the Trial Court\'), whereunder the suit filed for recovery of money was partly decreed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>The Plaintiff has filed the instant suit in O.S. N.16840/2006 for recovery of a sum of `9,34,924 together with interest @ 18% per annum from the date of   suit till the date of realisation.   It is the case of the Plaintiff that it is the owner of the suit property and had let out the same to Nedungadi Bank (the predecessor in interest of the Appellant/Defendant) on a monthly rent of `13,574/- and refundable advance of `81,444/-. The tenancy was renewed as per Lease Agreement dated 23.09.2022 for a period of five years on monthly rent of `23,144/- w.e.f. 01.09.1998 with an option to renew the same for a further period of five years by enhancing the rent @ 20% every three years and additional advance of `1,32,969/-; that the Nedungadi Bank merged with the Defendant-Bank and thereafter, the Defendant vide Lease Agreement dated 23.09.2002 has started to pay monthly rent of `23,414/- from 01.09.2002. In this regard, the Plaintiff gave a representation calling upon them to pay the rent as per the terms of Lease Agreement dated 23.09.2002.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>The Defendant entered appearance and filed its Written Statement denying the claim made by the Plaintiff. Although it admitted the fact that its predecessor in interest was in occupation of the suit premises as a tenant, the renewal and enhancement under lease agreement dated 23.09.2002 was denied. It was further contended that the alleged lease agreement dated 23.09.2002 contemplated a lease beyond one year and the same being unregistered and insufficiently stamped, the same is not recognized in law.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>We have   considered the contentions putforth by the learned counsels and perused the material available on record. The questions that arise for consideration are: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space:pre\">	</span>Whether the claim of the Plaintiff is within time?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 2.<span style=\"white-space:pre\">	</span>Whether the Plaintiff is entitled to the enhancement of rent and as claimed in the plaint?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>Although in normal circumstances, in the absence of the Trial Court framing an issue for consideration, the matter ought to have been remanded to the Trial Court, having regard to the admitted claim of the Plaintiff as is forthcoming from the plaint, the admitted dates on which the aspect regarding limitation is to be considered, in view of the fact that the present Appeal is a First Appeal under Section 96 of the CPC and the claim of money being an old one, the question of limitation is being considered in the present Appeal.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>Notwithstanding the fact that the duty and penalty under the said Lease Agreement was paid, the period of tenancy under the said Agreement being more than eleven months, the same ought to have been registered as contemplated under Section 17(1) of the Registration Act. In the absence of the said Lease Agreement dated 23.09.2002 being registered, having regard to Section 49 of the Registration Act, the same can be looked into only for collateral purposes and not for considering the terms of the said agreement. Hence, the said agreement cannot be looked into for the purpose of considering the claim made by the Plaintiff for enhanced rent.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>The Defendant has disputed the said last inserted page of the said agreement. The Trial Court noticing that the said lease agreement dated 23.09.2002 was not a registered one and that only the deficit stamp duty and penalty has been paid by the Plaintiff, relying upon the judgment reported in the case of Chandrakala Vs. Soman1 held that the Plaintiff cannot be permitted to claim an enhanced rate of rent in terms of the unregistered Lease Deed. Having regard to Section 17(1) of the Registration Act and having regard to the settled proposition of law regarding effect of non registration of a compulsorily registerable document as contemplated under Section 49 of the Registration Act (see: Anthony v. K.C.Ittoop & Sons; Smt. G. Kusuma Devi Vs. Smt. Gouramma and Others), the finding of the Trial Court is just and proper.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space:pre\">	</span>Having recorded a finding that the said agreement dated 23.09.2002 being an unregistered one and cannot be looked into, it was not open to the Trial Court to hold that the Defendant is liable for payment at Rs.23,414/- per month from 01.09.1998, by relying on the said agreement. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24.<span style=\"white-space:pre\">	</span>Admittedly, the Defendant has also not paid the balance amount of rental deposit. Apart from producing a copy of the Lease Agreement dated 23.09.2002, the Plaintiff has not adduced any evidence to demonstrate that it is entitled for payment of enhanced rent. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25.<span style=\"white-space:pre\">	</span>The statement made by DW.1 in the cross examination which is extracted at para No.17 hereinabove, will not aid the case of the Plaintiff, inasmuch as, the witness merely admits a suggestion that there is an enhancement clause in the Lease Agreement dated 23.09.2002. If the said sentence is understood from the context with which it has been stated by the witness, the same cannot be the basis to accept the claim of the Plaintiff for enhanced rent. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26.<span style=\"white-space:pre\">	</span>In view of the aforementioned, the Plaintiffs have failed to demonstrate that it is entitled to enhanced rent as claimed for in the plaint. The finding of the Trial Court that the Defendant is liable to pay the enhanced rent from 01.09.1998 is erroneous and liable to be set aside. The questions framed for consideration are answered in the negative against the Plaintiff.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> i)<span style=\"white-space:pre\">	</span>The above Appeal is allowed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fbae20da1248a7a46e392bce87c39c9f.jpeg', '475bce0e3a9749453e4da74372f7bf0a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-14', 1, '', '', '2023-04-12 14:38:00', '2023-04-14 03:21:19'),
(2898, 'Q7CQOMX3MaJZNwcFVUVp7wCWm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When the earlier extension of time for investigation, granted in the absence of the accused, was not challenged and the second extension was in his presence, the accused is not entitled to be released on statutory/default bail. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Qamar Ghani Usmani Vs The State of Gujarat.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Criminal Appeal 1045-1046 of 2023 decided on 10 April 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice M.R. Shah and Justice C.T. Ravikumar.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 23.09.2022 passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal Nos. 1215/2022 and 1216/2022, by which, the Division Bench of the High Court has dismissed the said appeals and has refused to release the appellant – accused on statutory bail (default bail) under Section 167(2) of the Cr.PC, the original accused has preferred the present appeals. </span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">3. The facts leading to the present appeals in a nutshell are as under: ­ </span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">3.1 That the accused came to be arrested on 29.01.2022. The 90 days period as provided under Section 167 of the Cr.PC, therefore, was to expire on 29.04.2022. However, on 22.04.2022, the Investigating Officer prayed for extension of time to complete the investigation which came to be granted by the learned Trial Court by granting extension of 30 days period. The accused came to be informed about the extension on 23.04.2022 itself. On 22.05.2022, the Investigating Officer again prayed for further extension which came to be allowed by the learned Trial Court on 22.05.2022. At this stage, it is required to be noted that on 22.05.2022, the second extension was granted in the presence of the accused. In the meantime, the accused submitted the default bail application on 10.05.2022 on the ground that at the time when the first extension was granted on 22.04.2022, the same was not in the presence of the accused and the accused was not kept present and therefore, first extension was bad in law and therefore, the accused acquired right to get the default bail on 10.05.2022. The learned Trial Court rejected the said application(s). The Division Bench of the High Court by the impugned judgment and order has dismissed the appeals. Hence, the present appeals at the instance of the original accused. </span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">6.1 The short question which is posed for the consideration of this Court is whether in the facts and circumstances of the case, the appellant shall be entitled to the statutory/default bail under Section 167(2) of the Cr.PC on the ground that at the time when the extension of time for completing the investigation was prayed by the investigating agency and granted by the Trial Court the accused was not kept present?</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">6.4 Thus, sum and substance of law laid­down by this Court in the cases of Sanjay Dutt (supra) and Jigar (supra) are that while considering the application by the Investigating Agency for extension of time for completing the investigation beyond the period prescribed under Section 167(2) of the Cr.PC the accused is to be given notice and/or is to be kept present before the Court, so that, the accused had knowledge that the extension is sought and granted. </span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">6.5 However, in the facts and circumstances of the case, we are of the view that the appellant is not entitled to the relief of statutory/default bail. In the present case the facts are glaring which are as under: ­</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">……The accused was arrested on 29.01.2022. The 90 days provided under Section 167 Cr.PC thus would expire on 29.04.2022. Within the period of 90 days i.e., on 22.04.2022, the IO submitted the report and prayed for extension of time for completing the investigation which came to be allowed by the learned Trial Court by granting extension of 30 days period. It is true that for whatever reason, the accused was not kept present at the time when the learned Trial Court considered the report submitted by the IO for extension of time for completing the investigation. However, the accused came to be informed about the extension on the very next day i.e., 23.04.2022. The accused did not challenge the extension on any ground which may be available to him and/or did not make any grievance that such an extension is illegal and/or contrary to law. On 10.05.2022, he made the present application for default bail/statutory bail on the ground that the chargesheet has not been filed within the period of 90 days. At this stage, it is required to be noted that at the time when the present application for default/statutory bail was made on 10.05.2022, there was already an extension of time by the learned Trial Court which as such was in existence and the extension was up to 22.05.2022. At this stage, it is required to be noted that though informed on 23.04.2022 about the extension of time for completing the investigation, the accused did not disclose the same in the application for default bail/statutory bail submitted on 10.05.2022. That thereafter, on 22.05.2022, IO again submitted the report for further extension of time for completing the investigation which came to be allowed/granted by the learned Trial Court which as such was in the presence of the accused and at that time, the accused remained present. Neither the first extension nor the second extension came to be challenged by the accused.”</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">7. Therefore, in the aforesaid peculiar facts and circumstances of the case, when two extensions granted by the Court which are not challenged and at the time when the default bail application was made on 10.05.2022 there was already an extension and even thereafter, also there was a second extension which was in presence of the accused and thereafter, when the chargesheet has been filed within the period of extension, the accused is not entitled to be released on statutory/default bail as prayed. Therefore, in the facts and circumstances of the case, we are in agreement with the ultimate conclusion reached by the High Court denying the statutory/default bail to the accused. </span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">8. In view of the above and for the reasons stated above and, in the facts, and circumstances of the case narrated hereinabove, the appellant is not entitled to the benefit of statutory/default bail. Under the circumstances, the present appeals deserve to be dismissed and are accordingly dismissed. However, it will be open for the accused to prayer for regular bail which may be considered in accordance with law and on its own merits. Present appeals stand dismissed accordingly. </span></font></p>', '3438a9f0277631ae8f97c24f846d6e09.jpeg', 'de506a4e651fc3b927abd52041173a81.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-13', 1, '', '', '2023-04-12 14:47:09', '2023-04-13 10:29:32'),
(2900, 'wY4lFwKBfwBQLCXexQmFQkkzk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Societies Registration Act. Erstwhile office members cannot process election to the Society after the appointment of an administrator merely because the administrator has not taken charge. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>B L Adishesh and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 16906 of 2022 decided on 23 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>In WP No.16906/2022 the petitioners are members of respondent No.4-club they contended that the club and its office bearers i.e., respondents No.5 to 9 had after an administrator was appointed by the Government of Karnataka on 28.7.2022 issued a calendar events on 8.8.2022, accepted the nominations, issued the final list of the eligible candidates and had also issued final list of candidates for the post of office bearers which could not have been so done after an administrator had been appointed. It is in that background that the aforesaid reliefs would be sought for.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>The short question that would arise for consideration in the above matter is, whether the erstwhile office members can process a election after the appointment of an administrator merely because the administrator has not taken charge?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>As can be seen from the above facts an administrator was appointed on 28.7.2022 on the ground that the club had not conducted its elections. The said communication has apparently been received by the office bearers and immediately thereafter on 8.8.2022 a calendar of events was circulated in pursuance of which all further action of calling for nomination, scrutiny of nomination papers and finalization of list of eligible candidates was made thereafter i.e., the calendar of the events having been issued on 8.8.2022 being subsequent to a resolution passed on 27.7.2022, being subsequent to the Government order dated 28.7.2022 the entire process of election was virtually commenced after the appointment of an administrator.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>Though Sri.Pruthvi Wodeyar., learned counsel tries to contend that there was a meeting held on 27.7.2022 where an resolution was passed. The fact remains that action thereon was taken only after the appointment of an administrator. Merely because the administrator actually took charge on 12.8.2022 cannot be a ground for the club to contended that the erstwhile office bearers would go ahead with the election process and/or management of the club. In fact a reading of the letter dated 15.8.2022 addressed by the administrator to the Registrar of Co-operative Societies produced by the erstwhile office bearers along with its impleading application at Annexure-R6(x) indicates that even though the administrator wanted to take charge, he was prevented from doing so and finally charge was handed over on 12.8.2022 by the erstwhile office bearers. It is a trite law no one can take advantage of his own wrongs. In the present matter the administrator having being appointed on 28.7.2022 he being prevented from taking charge until 12.8.2022 when in the meanwhile the erstwhile office bearers have issued a calendar of dates events and sought to finalizes a list of the candidates subsequently would indicates that it is on account of the failure on part of the erstwhile office bearers that the administrator could not take charge. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>The other argument advanced by the Sri.Pruthvi Wodeyar., that the money spent on the election process and therefore the election should not be stopped is again an argument in futility in as much as the erstwhile office bearers want to take advantage of their own wrongs and now contend that since they committed those acts the amounts spent has to be saved. When the erstwhile office bearers could not have spent that money this contention is no longer available to them, they have sought to over come the order of the appointment of an administrator on 28.7.2022, all actions were taken pursuant thereto and money spent thereon was so done by them at their sole risk and peril and they cannot now contend that this money is to be saved. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>It is for the club to recover the said money from the erstwhile office bearers since the said money has been spent by them without authorization or by way of self authorization contrary to the order of appointment of an administrator.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> i.<span style=\"white-space:pre\">	</span>WP No.16906/2022 is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '664b1ee7dfeeb7519e08e9f0ad339846.JPG', 'cdd94b3aa84c07a5d6d4060b4c734b96.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-13', 1, '', '', '2023-04-12 15:06:51', '2023-04-13 12:11:45'),
(2901, 'ScJh0BKRkGlwhdd1MQj90YFPM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for permanent injunction. Pendency of tenancy dispute under Land Reforms before Tribunal does NOT prevent civil court to deal with issue of possession and to grant temporary/permanent injunction. Karnataka High Court.', '<h4><b>Sadananda vs Marian Paris Bhatt.</b></h4><h4><b>Miscellaneous First Appeal 3326 of 2020 (CPC) decided on August 19 2020.</b></h4><h4><b>Justice Hemant Chandangoudar.</b></h4><h4><b>Reported in 2020 SCC OnLine Kar 1378.</b></h4><b><br></b><h4><b>3. Learned counsel for the appellant submits that suit is&nbsp; maintainable since appellant has not sought for adjudicating&nbsp; the question of tenancy in the suit but has for sought granting&nbsp; permanent injunction based on possessory right. He places&nbsp; reliance on the decision of this Court in the case&nbsp; of Tulasamma v. Srinivasan reported in ILR 1995 Kar 1328 and&nbsp; in the case of B.V. Subbachari v. B.K. Joyappa reported in ILR&nbsp; 1994 Kar 2505-Hence, he submits that Appellate Court has&nbsp; committed an error in dismissing the application when the suit&nbsp; is one for permanent injunction and not with regard to the&nbsp; issue of tenancy and decoration thereof.<br></b></h4><h4><b><br></b></h4><h4><b>6. In the aforesaid decisions relied upon by the learned&nbsp; counsel for the appellant, it is held that in a case where the&nbsp; question of tenancy is not involved and no decoration thereof is&nbsp; sought for and where the dispute projected before the civil&nbsp; court has nothing to do with the powers exercisable by the Tribunal under the Karnataka Land Reforms Act, a civil court&nbsp; would be perfectly within its powers to exercise powers. The&nbsp; decisions stated supra are applicable to the facts of the case.</b></h4>', 'aa2adb2cf1a1fe483beb2f7eea2e7a47.jpeg', 'dd5f17ed76a4a81caf859c262b708382.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-12', 1, '', '', '2023-04-12 15:17:13', '2023-04-12 10:29:01');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2902, 'XgZRQNFMDs8fwDYq4R3sps4HX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Challenge to Gift deed on the ground of fraud. Burden of proving absence of fraud, misrepresentation or undue influence is on the person in a fiduciary relationship and dominant position. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mahadev Vs Vishalakshi and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>RSA 7075 of 2013 decided on 31 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice C.M. Joshi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>It is the case of the Plaintiff that property bearing No.195/2, measuring 7 Acres, situated at Bhalki (hereinafter referred to as the \'suit property\') was purchased by her father through his own earnings in the name of her mother Nirmaladevi vide registered Sale Deed dated 18.12.1997. The Plaintiff being the only daughter of her parents, the said property was gifted in her favour by a registered Gift Deed dated 2.5.2005 and hence she is the absolute owner of the suit property. That the Plaintiff got married to the Defendant on 24.11.2004 and they have a daughter born from the said marriage. That the Defendant has taken money on many occasions from the father of the Plaintiff and the Defendant was also given a car and gold by the father of the Plaintiff. That the Defendant stating that he is taking a loan from the bank to improve the suit property for which the Plaintiff is required to mortgage the suit property in favour of the bank, brought her to the Sub Registrar\'s office and by playing fraud and misrepresenting her, has created the alleged Gift Deed in his favour in respect of the suit property and without disclosing the real facts asked her to put her signature on the document. The Plaintiff believing the words of her husband i.e., the Defendant has not gone through the contents of the document and signed the alleged Gift Deed, consequent to which, the Defendant has his name entered in the revenue records.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>The Defendant has contested the case and filed his Written Statement denying the plaint averments. It is the case of the Defendant that one Nirmala Bai/Nirmaladevi (mother of the Plaintiff) purchased the suit land from one Ganapati vide registered Sale Deed 18.12.1998. That Nirmaladevi being his real sister, he was staying with her and she offered to give her daughter in marriage to the Defendant and believing her words the Defendant has constructed a house in the suit property out of his income from his ancestral property. The Defendant admits the registered Gift Deed dated 2.5.2005 by the mother of the Plaintiff in favour of the Plaintiff. He denies that he has played fraud while getting the Gift Deed registered in his favour and that the Plaintiff out of her own willingness and understanding has executed the Gift Deed dated 21.3.2006 in his favour and he is in possession of the suit property. That the Plaintiff is educated and is also a graduate. He denies the case of the Plaintiff regarding him having been addicted to bad habits. It is the further case of the Defendant that due to the wrong advice of her parents, the Plaintiff and her brother have thrown out the Defendant and his mother from the house. The Defendant has further pleaded that he has purchased the suit house in the name of his sister and he has purchased other properties and also a car out of his own income. Hence, he seeks for dismissal of the suit.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">13.</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem; white-space: pre;\">	</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">The first Appellate Court has framed the following points for consideration:</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>\"1. Whether the impugned judgment and decree dated 9.7.2012 passed by the learned Senior Civil Judge, Bhalki in OS No.32 of 2008 is capricious, perverse erroneous against law and merits of the case and interference of his court is needed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space:pre\">	</span>Whether the impugned judgment and decree passed by the lower court is sustainable in the eye of law? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>What order?\"<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>A combined reading of Section 111 of the Evidence Act and Section 16(1) and (3) of the Indian Contract Act makes it clear that in view of the allegations of fraud made by the Plaintiff and the circumstances in which such allegations are made, the burden is on the Defendant to prove that the Gift Deed - Ex.D1 is not induced by undue influence and is a transaction entered in good faith. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>Section 68 of the Evidence Act requires one attesting witness to be examined in proof of a document which is required by law to be attested and Section 123 of the Transfer of Property Act, 1882 mandates that a Gift Deed is required to be registered, signed by or on behalf of the donor, and attested by at least two witnesses.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>27.<span style=\"white-space:pre\">	</span>Having regard to the settled proposition of law as laid down in the judgment as noticed above and the legal provisions as notice at paras 16 and 17 supra, having regard to the concurrent finding of fact recorded by the Trial Court as well as the first Appellate Court and having noticed the evidence of the parties at paras 20 to 24 supra, the first substantial question of law with regard to the suit being not maintainable in view of the proviso to Section 34 of the Specific Relief Act, 1963, will not arise in the present case since the Plaintiff has pleaded that she is in possession of the suit property and the Trial Court and the first Appellate Court have concurrently held that she is in possession of the suit property. Hence, the proviso to Section 34 of the Specific Relief Act is not attracted and the said substantial question of law is answered in the affirmative, against the Defendant. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>28.<span style=\"white-space:pre\">	</span>The second substantial question of law is answered in the affirmative against the Defendant since the Plaintiff has pleaded and proved the fraud played by the Defendant. On the contrary, it is the Defendant who was required to prove that there is no fraud played by him while executing the Deed at Ex.D1, which he has failed to do. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>29.<span style=\"white-space:pre\">	</span>The third substantial question of law is also answered in the affirmative against the Defendant since both the Trial Court and the first Appellate Court have properly re-appreciated the entire material on record while considering the case of the respective parties and decreeing the suit of the Plaintiff.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> i.<span style=\"white-space:pre\">	</span>The above Appeal is dismissed;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c55621800a11e04a40dd55b9a78d536b.JPG', 'c2ad4bfad1f9dbadeef31ac61d1d4772.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-15', 1, '', '', '2023-04-13 14:14:25', '2023-04-15 03:20:52'),
(2903, '6ZvHuENXgEW94De62CmS6WuvF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\"Records of acquisition proceedings missing\" cannot be pleaded in a Writ Petition to declare lapsing of acquisition proceedings especially when the names of the owners continue in the revenue records. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Naggappa through LRS Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 53151 of 2014 decided on 30 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petitioners are knocking at the doors of writ court for assailing the acquisition of their land admeasuring 1 Acre & 13 Guntas in Sy.No.28/2 of Allanahalli village, in H.D.Kote Taluk, Mysore District Learned counsel appearing for the petitioners vehemently argues that the acquisition has lapsed u/s.11A of the erstwhile L.A. Act, 1894, the award having not being passed within the statutory period and possession also having not being taken. He also points out that no compensation, either, has been paid to his clients. In support of his submission he banks upon decision of Apex Court in MARIYAPPA & OTHERS vs. STATE OF KARNATAKA & OTHERS, AIR 1998 SC 1334.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 2.<span style=\"white-space: pre;\">	</span>After service of notice, the respondents have entered appearance through the learned AGA and resist the writ petition making submission in justification of the impugned acquisition. Learned AGA tells the court that the records of acquisition proceedings are missing and efforts to retrieve the same have failed. However, he asserts that the acquisition has been duly accomplished, by taking possession of the property for the public purpose and compensation too has been paid. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter for the following reasons: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a)<span style=\"white-space: pre;\">	</span>Right to property is constitutionally guaranteed under Article 300A as has been discussed by the Apex Court in K.T.PLANTATIONS vs. STATE OF KARNATAKA, (2011) 9 SCC 1. Although it is open to the State to take private property by due acquisition process, the payment of compensation is a sine qua non subject to all just exceptions into which argued case of the petitioners does not fit. Acquisition of private agricultural land is a serious matter. Those who seek to sustain acquisition have to show the cogent material as to the same having been accomplished in due process. The case of the petitioners that no award has been passed nor possession has been taken nor compensation is paid, cannot be disbelieved in the absence of minimum evidentiary material lending credence to the contention to the contrary. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b)<span style=\"white-space: pre;\">	</span>Learned counsel for the petitioners is more than justified in submitting that this acquisition having been initiated vide Preliminary Notification dated 24.08.1981 under the provisions of the Karnataka Acquisition of Lands for Grant of House Sites Act, 1972, Sec.11A of 1894 Act is applicable vide decision of the Apex Court in Mariyappa supra, this Court has no option but to hold the acquisition as having lapsed by operation of law. Under Section 11A of the Land Acquisition Act, 1894, if the land is not acquired within the stipulated time, then the whole proceedings in acquisition comes to an end, and thereby the owner of the land would be entitled to retain his land which appears to be the superior right that the owner’s right to get the compensation for acquisition of his land vide GIRNAR TRADERS vs. STATE OF MAHARASHTRA, (2007) 7 SCC 555. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(c)<span style=\"white-space: pre;\">	</span>Learned counsel for the petitioners is also justified in pointing out that till date names of his clients continue in the Revenue Records long after initiation of the acquisition proceedings and that the subject land is not required for the purpose for which it is notified, since there is other land earmarked for the said purpose. The respondents have not filed the Statement of Objections controverting petition averments either. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In the above circumstances, this writ petition succeeds and a Writ of Certiorari issues quashing the impugned acquisition notifications and it is declared that the subject property is freed from acquisition process, that has otherwise lapsed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '815cfd0a47cf0c009a35454aefe7687e.JPG', '49e79ff038e97580d95b7e0dd09f4357.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-15', 1, '', '', '2023-04-13 15:02:11', '2023-04-15 07:32:32'),
(2904, 'boNDIz5Fkelkepz8XjO1teZ20', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Landowner is entitled to additional interest on the compensation when dispossessed from the property before the initiation of the acquisition proceedings. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ashok and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 106390 of 2017 decided on 29 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sachin Shankar Magadum.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The captioned writ petition is filed seeking a writ of mandamus directing respondent No.4 to 6 to award interest on the compensation amount from the date of taking possession of the land in terms of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short “2013 Act”). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The facts leading to the case are that this writ petition is filed feeling aggrieved by the inaction on the part of respondents 4 to 6 in not awarding interest on compensation for having taken possession before acquiring the property. Therefore, the present writ petition is filed seeking appropriate direction against respondent No. 4 to 6. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>The law relating to claim of interest by the land owners on account of dispossession even before issuing preliminary notification is put to rest by the Hon’ble Apex Court. The Hon’ble Apex Court in the case of Balwan Singh and others vs. Land Acquisition Collector and another1 held that the land owner is entitled to get rent or damages and the same has to be determined by the Collector. The Hon’ble Apex Court has also taken note of the entitlement of an additional interest at the rate of 15% per annum on the amount awarded by the land acquisition officer. The said view has been followed in the subsequent decision rendered by the Hon’ble Apex Court in the case of Tahera Khatoon and others Vs. Revenue Divisional Officer/Land Acquisition Officer and others. The beneficiary has not disputed that the petitioner was dispossessed before issuing preliminary notification. The principles laid down by the Hon’ble Apex Court in the above cited judgments is followed by the Co-ordinate Bench of this Court in the case of Mallavva D/o. Yamanappa Akkimardadi Vs. The State of Karnataka and others which is produced at Annexure- C. In the light of the discussions made supra, this Court is of the view that the petitioner is entitled to seek interest. The respondents are equally under obligation to determine the interest payable to the petitioner as indicated in the above judgments cited supra. The counsel appearing for respondent No.3, who is beneficiary, has brought to the notice of this Court that possession was taken on 27.09.1984, however the preliminary notification under Section 11(1) of the Act indicates that possession was taken on 27.02.2015. Therefore, mandamus lies in the present case on hand.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> i)<span style=\"white-space: pre;\">	</span>The writ petition is allowed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '54e33147162434245599d5fe8c965923.JPG', '142d0af594a72422a6e8d03cce9bbd9b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-14', 1, '', '', '2023-04-13 15:23:49', '2023-04-14 10:14:22'),
(2905, 'ZpFclsXiu5nwoYud3lPNvGBWg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Educational qualification cannot be insisted for transfer of authorization of licence on compassionate ground Karnataka Essential Commodities (Public Distribution System) Control Order. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M. Nirmal Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 101924 of 2023 decided on 29 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sachin Shankar Magadum.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The captioned writ petition is filed by the wife of original authorized fair price shop licence holder. The Authorities have declined to transfer the licence of fair price shop in favour of petitioner on compassionate ground on the premise that she has not completed matriculation and therefore, she lacks eligibility as indicated under Clause 13 of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992. (for short “ PDS Control Order 1992”). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2.   The Co-ordinate Bench of this Court while dealing with an identical case found that no educational qualification is prescribed for transfer of authorization of licence on compassionate ground. Only under the Karnataka Essential Commodities (Public Distribution System) Control Order, 2016, qualification for transfer of authorization of fair price shop is prescribed where one should possess a certificate of matriculation. The Co-ordinate Bench of the is Court has held that if the petitioner’s husband was issued licence under PDS Control Order 1992, the widow of the original license holder cannot be denied the transfer of authorization on compassionate ground. The judgment rendered by the Co- ordinate Bench of this Court in W.P.No.102283/2021 is squarely applicable to the present case on hand. For the reasons cited supra, the writ petition deserves to be allowed.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> i)<span style=\"white-space: pre;\">	</span>The writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6f13a1a1fba2726ed73cb953db408d3a.JPG', '220c034bb5f43864cd6433876f502f8c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-17', 1, '', '', '2023-04-13 15:35:32', '2023-04-17 03:21:42'),
(2906, 'doDk1Et6sCap3gDhFyFJkpqzE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Don’t reduce the fundamental right of children under Article 21-A of the Constitution of India, to a “mere rope of sand”. Karnataka High Court directs the Govt to identify land and rebuild Government School. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The School Development and Monitoring Committee Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 21595 of 2022 decided on 13 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner/School Development and Monitoring\r\nCommittee (‘the Committee’ for short) of the Government Lower\r\nPrimary School, Agaralingana Doddi, Maddur Taluk is before this\r\nCourt seeking a direction by issue of a writ in the nature of\r\nmandamus directing respondents 1, 3 and 4 to take immediate\r\naction for initiation of process of identification of land and rebuilding of the Government School in Agaralingana Doddi, Maddur\r\nTaluk on consideration of representation submitted by the\r\nCommittee.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Brief facts leading to the filing of the present petition, as\r\nborne out from the pleadings, are as follows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The school at Agaralingana Doddi, Maddur Taluk was\r\nestablished 35 years ago in a small area in the village and the\r\npresent Committee is the School Development and Monitoring\r\nCommittee of the Lower Primary School. As and when the strength\r\nof students would increase, the need for expanding the school with\r\nrequired infrastructure also increased. Many members in the Village\r\nthen volunteered and donated 10 guntas of land in favour of the\r\nState only for the purpose of building the School at Agaralingana\r\nDoddi. Later the Government transferred entire records into the\r\nname of the school. The Government school then came within the\r\njurisdiction of the Gram Panchayat as it was in the vicinity of\r\nAgaralingana Doddi Gram Panchyat. The State then constructed two\r\nrooms, a kitchen and toilet both for boys and girls in the area that\r\nwas donated by the members of the village and established a new\r\nbuilding in the said area. From 2003 upto 2018 the school was\r\nfunctioning in its full swing. 25 students, both boys and girls were\r\nstudying in the said school from first to fifth standard.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The representations between one office to another, from\r\nthe 1st respondent to 4th respondent, galore. But, the school was\r\nnot set up. This led to the Committee taking up a small room and\r\nsetting up a school so that the children should not go out of\r\neducation. The small room does not have any amenity. It does not\r\nhave a kitchen or a wash room. Representations were given again\r\nfor construction of a new school building and a decision to be taken\r\nforthwith in that regard. The amount of compensation still lied in\r\nthe joint account of the Committee and the Head Master of the\r\nSchool which had by then became `72,40,221/- with interest.\r\nSince no action is taken for close to 3 years after demolition of the\r\nschool building, the petitioner/Committee is knocking at the doors\r\nof this Court in the subject petition seeking a direction as quoted\r\nhereinabove. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Frederick Douglass, once wrote that it is easier to build\r\nstrong children than to repair broken men. Though these were lines\r\nwritten in the context of slavery in the United States of America, I\r\nwould paraphrase it to the present scenario observing that it is\r\nnecessary to build strong children, for which it is imperative to\r\nrepair the broken will of the officials manning such offices. It is trite\r\nthat social and economic development of the nation depends upon\r\nits educated population. For a successful democratic system,\r\neducation is a fundamental requirement. The right of children for\r\nfree and compulsory education was envisaged under the 86th\r\namendment to the Constitution of India, which is later enacted by\r\nthe Parliament on 04-08-2009. The Act describes the modalities of\r\nthe importance of free and compulsory education for children\r\nbetween 6 and 14 years in furtherance of their fundamental right\r\nunder Article 21-A of the Constitution of India. The Act came into\r\nforce on 01-04-2010, India then became one of the 135 countries <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to make education a fundamental right of every child. The Act\r\nmakes education a fundamental right of every child between the\r\nages 6 to 14 and specifies minimum norms in elementary schools.\r\nTherefore, the State is under the constitutional obligation to provide\r\neducation to all children of the age of 6 to 14 years for which\r\npurpose it is the duty of the State to provide/create necessary\r\ninfrastructure and effective machinery for proper implementation of\r\nthe said right, failing which, the right to education guaranteed\r\nunder Article 21-A would remain illusory. The right under Article\r\n21-A has become a mockery in the case at hand, not at the\r\ninstance of any private players, but at the instance of officials of the\r\nState owing to the ever known malady of “red tapism”.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 13. On the aforesaid principles if the case at hand is noticed,\r\nit demonstrates apathy on the part of the State towards children,\r\nnotwithstanding the right of the children for free and compulsory\r\neducation, under Article 21-A of the Constitution of India. The\r\nschool in the year 2003 was set up in a particular place and its\r\nstrength grew from time to time. At the relevant point in time\r\nthere were 25 students in the said school. The school functioned </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for 15 long years. The students comprised of both boys and girls.\r\nThe land acquisition for widening of the road blows the school into\r\nthe wind on its demolition. The problem has cropped up since then\r\nnot because of lack of funds, as the demolition of the school\r\ngenerated compensation close to `70,00,000/-. Therefore, it is not\r\nbecause of lack of funds that the new school did not come up, but it\r\nis because of lack of will on the part of the officers of the State –\r\nrespondents 1 to 6. The moment the school building was\r\ndemolished for the purpose of widening of road, the Committee\r\ncontinuously communicated to all the concerned quarters of the\r\nState, the State as it is known for its won’t of procrastination did\r\nnot act.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. The State, in its objections, does not indicate as to when\r\nthe school building would be constructed or re-constructed by\r\nidentification of a suitable land, but questions locus of the\r\nCommittee to file this writ petition. According to the State, School\r\nDevelopment and Monitoring Committee has no locus to file the\r\npresent petition against the State, I decline to accept the said\r\ncontention. It is to be seen at what stage the Committee is before\r\nthis Court espousing the cause of the children seeking to enforce\r\nthe fundamental right of children for free and compulsory\r\neducation. Therefore, the stand of the State is unacceptable.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. It therefore becomes necessary to notice the creation of\r\nthe Committee. The State Government in exercise of its powers\r\nunder sub-section (1) of Section 38 of the Right of Children to Free\r\nand Compulsory Education Act, 2009 has framed Rules i.e., the\r\nKarnataka Right of Children to Free and Compulsory Education\r\nRules, 2012. The application of these Rules will have overriding\r\neffect over the provisions of the Karnataka Education Act, 1983\r\nwhere there are no provisions the said Rules would apply. Part-V of\r\nthe said Rules deals with School Development and Monitoring\r\nCommittee. Therefore, it is a statutory Committee.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The afore-quoted clauses of sub-rule (5) of Rule 13 and sub-rule 6\r\nwould clearly indicate the powers of the Committee to acquire and\r\npurchase any movable or immovable property for the proper\r\nfunctioning of the school. It is the work of the Committee to\r\nprotect the school premises against encroachment and nuisance. It\r\nis also the function of the Committee to address grievances of\r\nstudents, parents and teachers; to oversee infrastructure facilities\r\nfor the school children, to supervise all properties and finances of\r\nthe school. Therefore, the Rules formulated by the State in terms of\r\nthe Central enactment give certain rights to the Committee.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. The communications made between the offices clearly\r\nindicate that the right to free and compulsory education of children,\r\nparticularly in the Government school, is treated with utmost <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">callousness, which cannot be countenanced. The State ought to\r\nhave taken immediate steps, on receipt of compensation amount in\r\nthe year 2020 from the National Highways Authorities, in reply to\r\nthe representation of the Committee to construct school building\r\nwithout any loss of time, so that the young children would not lose\r\ntheir education. The officers who handled these files are responsible\r\nfor such apathy towards the cause of the children in the\r\nGovernment school. It is to be noticed that these children are\r\nwholly dependent on free and compulsory education that they are\r\ngiven as their fundamental right under Article 21-A of the\r\nConstitution of India and the same cannot be rendered illusory by\r\nsheer red tapism on the part of officers of the State. Therefore, in\r\nthe peculiar facts of this case, the petitioners are entitled to issue of\r\nmandamus to respondents 1 to 6 to act forthwith, identify/approve\r\nidentified land for the construction of school building and construct\r\nit and get the school functioned immediately. Since Legislative\r\nAssembly elections are now notified and the officers of the State\r\nwould be utilized by the Election Commission of India, I deem it\r\nappropriate to permit construction of the school building after </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">identification of the land from 01-06-2023 and report such\r\ncompliance to this Court.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">19. It shocks the conscience of the Court looking at the state\r\nof the children and the lackadaisical attitude of the State. What\r\nshould be the concern of the State towards the education of a child\r\ncan best be illustrated by a fact that is in public domain. In a\r\nremote place on the Island of Hokkaido, Japan there lives a girl who\r\ngoes to the High School. The only child who goes to the school was\r\nat that place. The trains run by the State stop there only few times\r\na day, once to pick up the girl for school and later, to drop her back\r\nwhen the school day is over. The train station exists only for one\r\nschool going child and the trains run at the cost of the State for one\r\nschool going child. It is, therefore, the people round the globe\r\ntipped their hats in praise of the Japanese Government for making\r\neducation even of one child a top priority. It was lauded as good\r\ngovernance at the grass-root level. Therefore, the officers of the\r\nState must remember that right of every citizen matters and no\r\nchild can be left behind. The issue before this Court is not\r\n“just one school”, it is “even one school”. This Court would not</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">permit the State to reduce the fundamental right of children under\r\nArticle 21-A of the Constitution of India, to a “mere rope of sand”.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Writ Petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0829da254dcd67b770b9fd8abdc19fd3.jpeg', '2e664482c9931314d51fea0b205b8417.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-14', 1, '', '', '2023-04-14 11:21:02', '2023-04-14 07:00:23');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2907, '02wxndKe3sWjnPu3Z5xE5kRfc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Insolvency and Bankruptcy Code, 2016. Tribunal has no jurisdiction to entertain any issue arising out of any statutory requirement and it cannot exercise jurisdiction over matters de hors insolvency proceedings. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Principal Chief Conservator of Forests and others Vs M/S. Wind World (India) Ltd.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 20083 of 2022 decided on 13 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The 1st petitioner is the Principal Chief Conservator of Forests, Government of Karnataka. The State calls in question an order passed by the National Company Law Tribunal, Ahmedabad (‘the Tribunal’ for short) on an application filed under Section 60 of the Insolvency and Bankruptcy Code, 2016 (‘the Code’ for short). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Brief facts that lead the petitioners to this Court in the subject petition, as borne out from the pleadings, are as follows:- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The respondent – M/s Wind World (India) Limited (hereinafter referred to as ‘the Company’ for short) was granted a lease by the Karnataka Renewable Energy Development Corporation Limited in respect of land measuring 221.80 Hectares under a lease deed dated 03-09-2003. The land granted for lease was a Forest land. The lease was for a period of 15 years and came to an end on 19-06-2018. The Company applies for renewal of lease on 09-01-2020 and the same was pending consideration before the Competent Authority. Meanwhile the Company requests the State to permit it to start the wind mill as the same would get damaged if it is not put into functioning. The request of the petitioner was considered and to safeguard the interest, pending consideration of final liabilities, it was given such permission on 23-07-2020. The permission was subject to clearance of the Forest Department. The Forest clearance did not come about for a long time. The Company on declaration of it being an insolvent was before the Tribunal invoking Section 14 of the Code. The proceedings were pending before the Tribunal right from 2018 and all the above permissions were granted during the pendency of proceedings before the Tribunal.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The State noticing the fact that forest clearances were not placed before it for continuation of permission to run the windmill drew up certain proceedings on 07-05-2022. In the proceedings, the State resolves to immediately suspend operations of the windmill till further orders and directed that documents be placed before Government for continuance of operation of the windmill. The said proceeding led to a communication dated 07-05-2022 bringing it to the notice of the Company that it is a long pending issue and it may be treated as urgent, otherwise it would be recommended for closure of the file. The Company does not challenge these orders before any competent fora but knocks at the doors of the Tribunal in pending case by filing an application under sub-section (5) of Section 60 of the Code for passing of an interim order. The Tribunal by the impugned order dated 06-07-2022 directs the State Government to permit functioning of the windmill by holding that it was essential to resolve insolvency of the corporate debtor i.e., the Company. Pursuant thereto the State Government knocks at the doors of this Court calling in question the said order of the Tribunal.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. In furtherance whereof, the only issue that falls for consideration is:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i> “Whether the Tribunal has exceeded its jurisdiction by passing the impugned order?”</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>To consider the issue that is raised, it is germane to notice the provisions of the Code. Sub-section (5) of Section 60 directs that notwithstanding anything to the contrary contained in any other law, the Tribunal shall have jurisdiction to entertain and dispose of any application by or against the corporate debtor or corporate person. It has jurisdiction to entertain any claim by or against the corporate debtor including a claim by or against all its subsidiaries situated in India. It is under this provision that an application comes to be filed by the corporate debtor, the Company before the Tribunal and the Tribunal has passed the impugned order.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11... The Apex Court again considering sub-section (5) of Section 60 of the Code holds that the Tribunal will not have jurisdiction to entertain any issue arising out of any statutory requirement. It is clearly held that the Tribunal cannot exercise its jurisdiction over matters de hors insolvency proceedings, since the matter falls outside the realm of the Code.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Following the judgment in the case of GUJARAT URJA VIKAS NIGAM LIMITED the Apex Court holds that the Tribunal cannot overstep its jurisdiction.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 13.<span style=\"white-space:pre\">	</span>In the light of the judgments rendered by the Apex Court supra it is germane to notice the proceedings of the State and the order notified upon the Company by the State. The proceedings are that the Company has been taking undue advantage of indulgence of the State and has not taken any steps to submit a complete forest clearance proposal for renewal of the lease and has been continuing with the operation on ad hoc basis. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Challenging this, the Company could not have knocked at the doors of the Tribunal as it completely falls beyond the purview of the Code, being in the realm of public law, since the State has exercised its jurisdiction in drawing up the proceedings and directing forest clearances to be submitted by the corporate debtor, the petitioner, in exercise of powers conferred under the statute. Therefore, they are in the realm of public law. The Tribunal had no jurisdiction to direct functioning/continuing of the windmill without the forest clearances, merely because the State had granted such permission at an earlier point in time.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 14.<span style=\"white-space:pre\">	</span>The submission of the learned senior counsel for the Company is that if the State had passed an order, then the Tribunal would have no jurisdiction. According to him, the one that is passed is not an order. The said submission is noted only to be rejected, as it is a communication from the hands of the State and it is understood by the Company also to be an order only, as the averments in the application filed before the Tribunal demolishes the contention of the learned senior counsel for the Company.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Therefore, none of the contentions of the learned senior counsel for the Company would merit acceptance. It is open to the Company to produce all the necessary clearances as is sought by the State if the Company wants to continue with the operations. In the event, the Company would furnish its documents for forest clearances, it is open for the State to consider the same and pass appropriate orders in accordance with law.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Writ Petition is allowed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fdebc698e45d5fd07760eb354c008397.jpeg', '5513aeed4556a1f579ec8f716cbd2874.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-18', 1, '', '', '2023-04-16 18:32:53', '2023-04-18 08:14:31'),
(2914, 'BFoYPY9pwFxUZHk4ogBVtlq4c', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Framing of charges in criminal cases.   Apart from the duty of Trial Court, even the Public Prosecutor has a duty to be vigilant, and if a proper charge is not framed, it is his duty to apply to the Court to frame an appropriate charge. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Soundarajan Vs State Rep.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1592 of 2022 decided on 17 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Abhay S. Oka and Justice Rajesh Bindal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. The appellant was convicted for the offences punishable under Section 7 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short, \'the PC Act\'). The appellant was sentenced to undergo imprisonment for one year and to pay a fine of Rs. 2,000/­. High Court, by the impugned judgment, has confirmed the conviction and sentence of the appellant.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The appellant was holding the post of Sub­Registrar at Kannivadi, Dindigul District, Tamil Nadu. The complainant M. Sundaramoorthy (PW­2), had purchased land measuring 16.05 cents. Accordingly, on 12th July 2004, sale deed was presented before the appellant who was the Sub­Registrar in the concerned office. The complainant and his vendors were present. According to the case made out by the complainant in his complaint, apart from getting the sale deed typed on a stamp paper of Rs.880/­, he paid a sum of Rs.190/­ towards the registration charges of the sale deed. A receipt for the said amount was issued by the appellant. On 16th July 2004, when the complainant visited the appellant\'s office, he was informed to bring FMB Sketch from the concerned Government office. According to the complainant, on 31st July 2004, the said sketch was produced by him. After the sketch was produced, the appellant informed him that he would have to make a site visit. Accordingly, the complainant arranged for transport for the appellant to enable him to make a site visit. After noticing trees on the land, the appellant instructed the complainant to get a TOPO Sketch from the concerned office to show that the land subject matter of sale was cultivable. Thereafter, the complainant obtained requisite documents and handed over the same to the appellant on 6th August 2004 at 11.30 am. According to the complainant, at that time, the appellant demanded gratification of Rs.500/­ for handing over the registered sale deed. As the complainant was not willing to give gratification, on 11th August 2004, he filed a complaint with the Inspector of Police of the AntiCorruption Unit.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. We have considered the submissions. It is well settled that for establishing the commission of an offence punishable under Section 7 of the PC Act, proof of demand of gratification and acceptance of the gratification is a sine qua non. Moreover, the Constitution Bench in the case of Neeraj Dutta has reiterated that the presumption under Section 20 of the PC Act can be invoked only on proof of facts in issue, namely, the demand of gratification by the accused and the acceptance thereof.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12. There is no circumstantial evidence of demand for gratification in this case. In the circumstances, the offences punishable under Section 7 and Section 13(2) read with Section 13(1)(d) have not been established. Unless both demand and acceptance are established, offence of obtaining pecuniary advantage by corrupt means covered by clauses (i) and (ii) of Section 13(1)(d) cannot be proved</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13. We must deal with another argument made by the learned senior counsel appearing for the appellant. That is about the failure to frame a proper charge for the offence punishable under Section 7. The relevant portion of the charge reads thus:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>\"<i>You, working as the Sub Registrar at Kannivadi, Dindigul District from 27.10.2003 to 27.10.2003 and as such you are a public servant you registered the sale deed of 16.05 cents of land purchased by Sundaramoorthy on 12.07.2004 and demanded a sum of Rs.500/­ from Sundaramoorthy as gratification other than legal remuneration for returning the registered document and also received Rs.500/­ as bribe, hence you disclosed the offences punishable u/s. 7 of Prevention of Corruption Act 1988 and triable by this Court.\"</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14. Thus, the Special Court omitted to frame a specific charge on demand allegedly made by the appellant on 6th and 13th August 2004 and acceptance thereof on 13th August 2004. 15. Under Section 464 of CrPC, omission to frame a charge or any error in charge is never fatal unless, in the opinion of the Court, a failure of justice has in fact been occasioned thereby. In this case, from the perusal of the cross­examination of PW­3 and other prosecution witnesses made by the Advocate for the appellant, it is apparent that the appellant had clearly understood the prosecution case about the first alleged demand made on 6th August 2004 and the subsequent alleged demand and acceptance on 13th August 2004. There is no doubt that this is a case of omission to frame a proper charge, and whatever charge has been framed is, per se defective. However, by reason of the said omission or defect, the accused was not prejudiced insofar as his right to defend is concerned. Therefore, in this case, the omission to frame charge and/or error in framing charge is not fatal.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16. We find that, in this case, the charge has been framed very casually. The Trial Courts ought to be very meticulous when it comes to the framing of charges. In a given case, any such error or omission may lead to acquittal and/or a long delay in trial due to an order of remand which can be passed under sub­section (2) of Section 464 of CrPC. Apart from the duty of the Trial Court, even the public prosecutor has a duty to be vigilant, and if a proper charge is not framed, it is his duty to apply to the Court to frame an appropriate charge. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17. The appeal is allowed. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '51a035694b462e45acdbc5bcc780a074.jpeg', '5349aeeaf280e369dfa273561fc3673c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-19', 1, '', '', '2023-04-18 11:20:19', '2023-04-19 06:06:55'),
(2909, 'aZc5sn3hpH1rr3kGLbsjcGPYo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Lulu” vs “Coolulu”. Rectification proceedings under Section 16 of the Companies Act, 2013. There must be application of mind and recording of reasons while ordering rectification of name of company. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Coolulu Sports Private Limited Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 15087 of 2022 decided on 5 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court calling in question order\r\ndated 30-03-2022 passed by the 2nd respondent/Regional Director,\r\nCorporate Affairs allowing the application filed by the 3rd\r\nrespondent/Lulu International Shopping Malls Private Limited and\r\nrestraining the petitioner from using the word “lulu” from the title of\r\nits name within three months from the date of the order.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Shorn of unnecessary details, facts in brief that lead the\r\npetitioner to this Court in the subject petition, as borne out from\r\nthe pleadings are as follows:-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The petitioner/Coolulu Sports and Entertainment Private\r\nLimited claims to have been incorporated under the Companies Act,\r\n2013 (‘the Act’ for short) and is engaged in sports coaching,\r\nsporting events, adult fitness events etc. The petitioner claims to\r\nallow third-party merchants to sell sporting apparel, equipment and\r\nmerchandise at the events organized by the petitioner. It is claimed\r\nthat the petitioner is established with the aim of fostering athletic\r\ninclinations in both children and adults alike, to give sport\r\nenthusiasts an opportunity to compete and get recognized. The\r\npetitioner claims to have been incorporated on 13-04-2018 in the\r\nname and style of ‘Coolulu’. It is claimed that prior to the petitioner\r\ngetting incorporated the brand and logo with the stamp and all\r\nother things were checked and then the name was incorporated.\r\nThe 3rd respondent/Lulu International Shopping Malls Private\r\nLimited is engaged in the establishment and operation of several\r\ncommercial establishments such as malls and super-markets. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The 3rd respondent complained to the Competent Authority\r\nthat the petitioner is using the name that is too near to the name of\r\nthe 3rd respondent and on such complaint, a show cause notice\r\ncomes to be issued to the petitioner under Section 16 of the Act by\r\nthe 2nd respondent. The show cause notice emanates on account of\r\nan application filed before the 2nd respondent by the 3rd respondent.\r\nThe petitioner claims to have filed its objections and later, on\r\nconsideration of the material before it the 2nd respondent/Regional\r\nDirector, passes an order under Section 16(1)(b) of the Act\r\ndirecting the petitioner that it should not use the word ‘Lulu’ in its\r\nname and further directs that the name of the Company should be\r\nchanged within 3 months from the date of the order i.e., 30th\r\nMarch, 2022. In the event the petitioner would not change, it was\r\ndirected that necessary action under Rule 33A of the Companies\r\n(Incorporation) Fifth Amendment Rules, 2021 be immediately put\r\ninto effect for changing the name. It is this order that drives the\r\npetitioner to this Court in the subject petition.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The afore-narrated facts are not in dispute. The name of\r\nthe company of the petitioner so incorporated is ‘COOLULU Sports\r\nPrivate Limited’ and the name of the 3rd respondent is ‘LULU’. The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner though was incorporated in the year 2018, the factum\r\nwas not known to the 3rd respondent. The petitioner communicates\r\na mail on 02.03.2021 to the 3rd respondent soliciting its cooperation\r\nfor a synergy towards some strategic partnership. It was indicated\r\nthat ‘Lulu’ group has expanded its footprints into the sports retail in\r\nIndia and, therefore, the petitioner wanted to have strategic\r\npartnership with ‘Lulu’ as it was a sporting Company. It is then an\r\napplication comes to be filed before the 2nd respondent by the 3rd\r\nrespondent seeking change of name of the petitioner. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the light of\r\nthe application being filed under Section 16 and the order passed\r\nthereon, I deem it appropriate to notice the said provision of law.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. </span></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 16 deals with rectification of name of the Company. The\r\nstatute mandates that if through inadvertence or otherwise, a\r\nCompany on its first registration or on its registration by a new </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">name is registered by a name which is too nearly resembles the\r\ntrade mark of such proprietor under the Trade Marks Act, 1999, on\r\nan application being made within 3 years of such incorporation or\r\nregistration or change of name of the Company, in the opinion of\r\nthe Central Government is identical with or too nearly resembles to\r\nan existing trade mark, it may direct the Company to change its\r\nname and the Company shall change its name or incorporate a new\r\nname as the case may be, within three months from the date of\r\nsuch direction.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n11. The entire fulcrum of the lis lies in Section 16. Clause (b)\r\nof sub-section (1) of Section 16 permits an application being filed\r\nby a registered proprietor of a trademark who is a proprietor under\r\nthe Trade Marks Act, 1999. The 3rd respondent has been granted a\r\nwell known trade mark in terms of the provisions of the Trade\r\nMarks Act. Therefore, the 3rd respondent has a trade mark under\r\nthe provisions of the Trade Marks Act. Clause (b) of sub-section (1)\r\nof Section 16 directs that if a Company that has a name identical\r\nwith or too nearly resembles a registered trade mark of such\r\nproprietor under the Trade Marks Act, he can file an application </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under Section 16. Invoking this provision, the 3rd respondent files\r\nthe application seeking a direction at the hands of the 2nd\r\nrespondent to change the name of the petitioner from Coolulu to\r\nany other name. The application was filed on 13.05.2021. The\r\npetitioner claims to have filed its objections on 05-07-2021\r\ncontending that Coolulu Sports Private Limited is not identical with\r\nLulu International Shopping Malls Private Limited, as the words (i)\r\n‘International’; (ii) ‘Shopping’ and (iii) ‘Malls’ are not a part of\r\nCoolulu. Coolulu has the words ‘Sports’ and ‘Entertainment’. The\r\nparts of the names of the Companies of both the petitioner and the\r\n3\r\nrd respondent are entirely different. It was thus defended before\r\nthe 2nd respondent that the names are not similar or identical.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. There is no consideration worth the name by the 2nd\r\nrespondent. The purport of Section 16 is not even considered or the\r\npurport of Trademarks Act becoming applicable to Section 16 is\r\nagain ignored. The order does not demonstrate even a semblance\r\nof application of mind for there are no reasons recorded by way of\r\nconsideration of the contentions of both the petitioner and the 3rd\r\n\r\nrespondent. In a paragraph it is opined that the name is likely to\r\ncreate confusion between the two and, therefore, it should be\r\nremoved. This is not the purport of Section 16. An order which\r\ndetermines rights of parties, in the case at hand is the rights of\r\nparties qua their names, it is trite, should bear application of mind.\r\nAn order which does not contain any reason is an unreasonable\r\norder. The phrase would become applicable to the impugned order,\r\nas there are no reasons indicated qua the contentions of the\r\nrespective parties as well as the mandate of the statute. Therefore,\r\nthe 2nd respondent is required to pass order afresh by recording\r\nreasons for the contentions so advanced both by the petitioner and\r\nthe 3rd respondent, which would bear the stamp of application of\r\nmind. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. Though the learned counsel for the petitioner and the\r\nlearned senior counsel representing the 3rd respondent have\r\nadvanced several submissions, all those would have merited\r\nconsideration if the impugned order did bear some reasons. The 2nd\r\nrespondent endowed with the statutory duty of such determination\r\nunder Section 16 cannot pass an order which would depict an\r\ninscrutable face of the sphinx. Therefore, the contention of both the\r\nlearned counsel for the petitioner and the learned senior counsel for\r\nthe 3rd respondent shall remain open. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>ORDER</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n (i) Writ Petition is allowed in part.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '786c82d339100ac2f93011d95dea37af.jpeg', '1429de2dae4f20e6bd9275b575c9e8e4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-19', 1, '', '', '2023-04-16 19:11:43', '2023-04-19 03:22:22'),
(2910, 'G5c2pBGLNkC4UIw08dSOlV9Ny', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Labour Law. Once a domestic enquiry is held to be fair and proper, the labour Court cannot hold the contents of the enquiry report to be perverse and set aside the order on that basis. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/s TTK Healthcare Ltd Vs P V Ravi.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 29197 of 2014 decided on 29 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The employer is engaged in the manufacture of ready to fry products and established a factory with around 60 workmen. The machinery installed are automatic requiring less manual operation and as such, the workmen are fully trained to operate the machines. The respondent was working as an Operator in the petitioner factory on G700 Gelatinizer mixing machine with the aid of a helper by name Annayachari.B.C. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>On 10.9.2011, it is alleged that the respondent- workman tied a thin wire to the limit switch and allowed the contract worker N.Devaraj to clean the mixing machine. The contract worker while cleaning, touched the knob which started the machine and caused the accident resulting in instantaneous death of the contract worker. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>It is alleged that if the thin wire was not tied to the limit switch, the accident itself would not have happened since the safety switch would not have allowed the machine to start. It is on this basis, a charge memo came to be issued on 22.09.2011, to both the respondent and Annayachari. The respondent workman submitted his reply and explanation, finding the same not satisfactory the Enquiry Officer was appointed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 5.<span style=\"white-space: pre;\">	</span>The Enquiry Officer submitted a report and findings on 5.1.2012 holding the respondent guilty of the charges. A second show cause notice enclosing the report and finding of the Enquiry Officer was issued to the respondent, the reply thereto being not satisfactory, the Disciplinary authority terminated the services of the respondent by order dt. 10.03.2012 and paid an amount of Rs.3,367/- towards other dues and Rs.1,92,733/- as gratuity which has been collected by the workman. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">6.<span style=\"white-space: pre;\">	</span>The workman raised a dispute before the Prl. Labour Court registered as I.D.No.18/2012. The labour court held the domestic enquiry to be fair and proper vide order dated 5.10.2013 and vide award dated 28.02.2014 held the findings of the enquiry officer as perverse and set-aside the termination order directing the petitioner to reinstate the respondent- workman in his original post with 50% backwages, continuity of service and all consequential benefits. It is aggrieved by the said award, the petitioner is before this Court seeking for the aforesaid reliefs.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>The points that would arise for consideration are:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> i.<span style=\"white-space: pre;\">	</span>Whether once a domestic enquiry is held to be fair and proper, whether the labour Court thereafter while taking up the matter on merits set-aside the order and decide the case on merits? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ii.<span style=\"white-space: pre;\">	</span>Whether the defence of the workman that a thin wire was tied to the limit switch (safety switch) on the instructions of the employer without there being anything on record could have been accepted by the labour Court? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">iii.<span style=\"white-space: pre;\">	</span>What order?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>I answer the above points as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">12.<span style=\"white-space: pre;\">	</span>ANSWER TO POINT No.1: Whether once a domestic enquiry is held to be fair and proper, whether the labour Court thereafter while taking up the matter on merits set-aside the order and decide the case on merits?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.3.<span style=\"white-space: pre;\">	</span>In the present case, the labour Court initially had come to a conclusion vide its order dated 5.10.2013 that the domestic enquiry was fair and proper, however, while passing the final award on 28.02.2014 the labour Court came to a conclusion that the enquiry was perverse and set-aside the termination order directing the reinstatement of the workman by the employer with 50% back wages, continuity of service and all consequential benefits. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">12.4.<span style=\"white-space: pre;\">	</span>In my considered opinion it is not open for the labour Court to change its position as regards the fairness or otherwise of the enquiry at the time when the final award passed in the event of the labour court intending to change the finding insofar as the enquiry being fair and proper is concerned, then the labour Court would have to provide an opportunity to the employer to lead evidence to establish the charges alleged against the workman. In the present case, that has not been done. The labour Court having on 5.10.2013 come to a conclusion that the enquiry was fair and proper, in the final award dated 28.02.2014 it held the findings of the enquiry officer to be perverse, thereby meaning that the enquiry was not fair and proper though the words used is that the finding of the enquiry officer is perverse, it is one and the same, the result being one and same.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.5.<span style=\"white-space: pre;\">	</span>The decision relied upon by Ms.Avani Choksi in order to prove that the enquiry is not fair and proper viz., in the cases of Nand Kishore Singh, Jugal Kishore Haldar, Mohan Chandra Kalita, Rajendra Kumar Kindra, Anil Kumar, G.Dasayan, K.Manche Gowda and G.M.Tank, referred to supra, are all decisions which ought to have been considered by the labour Court at the time of giving a decision on the preliminary issue. Be that as it may, even at the later stage of the award even by applying the aforesaid decisions, the labour Court had come to a conclusion that enquiry is not fair and proper, opportunity was required to be granted to the employer to establish the Articles of Charge which has not been done. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">13.<span style=\"white-space: pre;\">	</span>ANSWER TO POINT NO.2: Whether the defence of the workman that a thin wire was tied to the limit switch (safety switch) on the instructions of the employer without there being anything on record could have been accepted by the labour Court?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.1.<span style=\"white-space: pre;\">	</span>Though this question is rendered academic, in view of the finding above, since the issue has been raised, the same is being answered. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.2.<span style=\"white-space: pre;\">	</span>The contention of the workman is that a wire had been tied to the limit switch (safety switch) at the instructions of the employer. Except this oral assertion no other document or instructions was placed on record. This aspect has been considered by the labour Court at the time of the final award to also to come to a conclusion that the enquiry was not fair and proper. There is no opportunity provided to the employer to place its say on record. Hence, the finding which has been arrived at by the labour Court without an opportunity being provided to the employer, in my considered opinion is not sustainable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">14.<span style=\"white-space: pre;\">	</span>ANSWER TO POINT NO.3: What order?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> i.<span style=\"white-space: pre;\">	</span>The writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'bf0a5b24df1c2bd80dbd5229efd9a6b9.JPG', 'cb8643a2097fe7dcc0c8b92150c2e978.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-18', 1, '', '', '2023-04-17 12:40:19', '2023-04-18 09:47:44');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2911, '2zaiOHjUKw8tQUebjmSSGAmD0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Penal Code. When accused is acquitted for the offence under Section 392 (Robbery), he cannot be convicted for the offence under Section 411 (Dishonestly receiving stolen property). Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.C. Dileep Kumar Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.R.P 439 of 2014 decided on 20 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Facts leading to filing of this revision petition narrated briefly are, on 13.03.2010 at about 6.05 a.m., when CW-2 - Smt. Gayathri was returning back to her house after purchasing milk, accused nos.1 to 4 came in two different motorcycles and snatched her gold mangalya chain weighing about 61.1 gms. from her neck and escaped from the spot. FIR was registered against unknown persons on the basis of the complaint filed by CW-2 and during the course of investigation, the police had arrested the petitioners, and after investigation filed charge sheet against them for the offence punishable under Section 392 IPC.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 4.<span style=\"white-space: pre;\">	</span>The Trial Court took cognizance of the alleged offences against the accused and since the accused pleaded not guilty, the matter was posted for trial. The prosecution in order to prove its case had examined 15 witnesses as PWs-1 to 15 and had got marked 11 documents as Exs.P-1 to P-11. The accused who had denied the incriminating circumstances available on record against them during the course of their statement under Section 313 Cr.PC, however, did not lead any defence evidence. The Trial Court, thereafter, heard the arguments addressed on both sides and by its judgment and order dated 20.12.2013 convicted accused nos.1 & 2 for the offence under Section 392 IPC and acquitted accused nos.3 & 4. Accused nos.1 & 2 were sentenced to undergo rigorous imprisonment for a period of four years and pay fine of Rs.1,000/- each and in default they shall further undergo simple imprisonment for six months for the offence under Section 392 IPC. The appeal filed by accused nos.1 & 2 in Crl.A.No.672/2013 against the said judgment and order of conviction and sentence passed by the Trial Court was partly allowed by the Appellate Court and while setting aside the order of conviction passed by the Trial Court for the offence under Section 392 IPC against both accused nos.1 & 2, the Appellate Court convicted accused no.2 for the offence under Section 411 IPC and sentenced him to undergo rigorous imprisonment for a period of one year and pay fine of Rs.1,000/- and in default to undergo simple imprisonment for six months. Being aggrieved by the same, accused no.2/petitioner is before this Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>The only question that arises for consideration in this revision petition is, \"whether the Appellate Court was justified in convicting the petitioner for the offence punishable under Section 411 IPC having acquitted him for the offence under Section 392 IPC?\"<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>Section 411 of IPC reads as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>\"411. Dishonestly receiving stolen property.- Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.\" </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>From the reading of the aforesaid provision of law, it is very clear that the person who dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be liable to be punished under the said provision of law. Section 410 IPC defines the term \'stolen property\'. The property, the possession whereof has been transferred by theft, or by extortion or by robbery, and the property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as \'stolen property\'. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>In the present case, the Trial Court had convicted the petitioner for the offence under Section 392 IPC, whereas the Appellate Court has acquitted him of the said offence. Section 392 IPC provides for punishment for robbery and Section 390 defines the term \'robbery\'. Since the Appellate Court has acquitted the petitioner for the offence under Section 392 IPC, it cannot be said that the property which was seized at the instance of the petitioner is said to be a property the possession whereof, has been transferred by robbery.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>In addition to the same, the material on record would go to show that the gold mangalya chain, of which robbery was allegedly committed by the accused persons was pledged in Mannapuram Finance Corporation Ltd. by the petitioner. The Appellate Court only on the ground that it is the petitioner who had pledged the said property viz., gold mangalya chain in Mannapuram Finance Corporation Ltd., has proceeded to hold him guilty of the offence under Section 411 IPC and accordingly, convicted him for the said offence. The petitioner is alleged to be the person who after committing the robbery of the gold mangalya chain pledged the same in Mannapuram Finance Corporation Ltd. The allegation of robbery as against the petitioner has not been proved by the prosecution and the Appellate Court has acquitted the petitioner of the said offence. Therefore, merely for the reason that it is the petitioner who has pledged the gold mangalya chain in Mannapuram Finance Corporation Ltd., he cannot held guilty of the offence under Section 411 IPC. In addition to the same, the gold mangalya chain is said to have been recovered from Mannapuram Finance Corporation based on the statement made by the petitioner to the said effect. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>Under the circumstances, the offence under Section 411 IPC cannot be attracted against the petitioner. The Appellate Court, therefore, has completely erred in convicting the petitioner for the offence under Section 411 IPC, and therefore, the same cannot be sustained. Accordingly, the following order: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>This criminal revision petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f6b52b6acd544eafe2a2d114ea0a02b2.jpeg', '2900c0e68c603dc81a45a05d5e91653e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-18', 1, '', '', '2023-04-17 13:17:57', '2023-04-18 06:24:31'),
(2912, 'nx6f1JdbTDnJi6mXAZFn1YT1e', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka SC-ST PTCL Act, 1978. Application for prior permission to alienate granted land filed by power of attorney of the grantee can NOT be considered. Only grantee or his legal heirs can apply for prior permission. Karnataka High Court. ', '<p><b>R.Sarojini Devi vs The Special Deputy Commissioner and others&nbsp;<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Writ Petition 60566 of 2016 decided 24 September 2021<br></span>Justice R. Devdas.&nbsp;<font color=\"#0d6efd\"><u></u></font></b></p><p><b>The petitioner is a subsequent purchaser who is aggrieved by the impugned order passed by the Deputy Commissioner, who reversed the finding of the Assistant Commissioner and held that the first sale transaction being without prior permission of the State Government, in&nbsp; terms of Section 4(2) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, proceeded to declare the same as null and void and consequently directed resumption and restoration of the land in question in favour of the original grantee or his legal heirs.</b></p><p><b>11. On the merits of the matter, where the issue that requires consideration is whether a subsequent permission granted by the State Government could be considered as compliance of the requirement of Section 4(2) of the Act?</b></p><p><b>Section 4(2) of the Act reads as under:</b></p><p><b>“No person shall, after the commencement of this Act, transfer or acquire by transfer any granted land without the previous permission of the Government.”</b></p><p><b>12.In the considered opinion of this Court, the contention of the fifth respondent-original grantee consistently made before the Assistant Commissioner, the Deputy Commissioner and before this Court, that the original grantee did not execute the sale deed is required to be considered. Even according to the sale deed dated 16.11.1996, it is obvious that one G.Nagaraju, who is said&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to be the Power of Attorney holder has executed the document. It is clear from the document itself that the document has been executed by the Power of attorney holder, on behalf of the original grantee and his two sons. As noticeable, the emphasis in sub-clause (2) of Section 4 is on the word ‘transfer’ and ‘acquired by transfer’. The word ‘transfer’ has been defined as follows:</span></b></p><p><b>“Transfer” means a sale, gift, exchange, mortgage (with or without possession), lease or any other transaction not being a partition among members of a family or a testamentary disposition and includes the creation of a charge or an agreement to sell, exchange, mortgage or lease or enter into any other transaction.</b></p><p><b>13.<span style=\"white-space: pre;\">	</span>Therefore, there cannot be any ambiguity that before a person seeks to acquire any granted land, he/she is required to seek prior permission of the State Government in terms of Section 4(2) of the Act. The fact that the original grantee was never part of the sale transaction and when admittedly a third party has executed the document claiming to be the power of Attorney holder of the original grantee and thereafter&nbsp; when the Sub-Registrar declined to register the document, effort is made by the Power of attorney holder and the purchaser by approaching the State Government to seek permission.</b></p><p><b>14. Therefore, this Court is of the considered opinion that the Deputy Commissioner is right when he held that there was no prior permission secured either by the original grantee or the purchaser as required under the provisions of the Act.</b></p><p><b>16. Before parting with this writ petition, it is necessary to reiterate the directions given by this Court in the case of Muniraju Vs. State of Karnataka and Others reported in (2021) 14 KLJ 282, (W.P.No.52945/2018 dated 19.05.2021).</b></p><p><b>17. At paragraph No.17, this Court directed as follows:</b></p><p><b>“However, having come across several such instances where a power of attorney is secured from the original grantee/legal heirs to approach the government seeking prior permission in terms of Section 4(2) of the Act, this Court sees the need to caution the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">government. The laudable objective with which the PTCL Act was enacted could be circumvented if a person other than the original grantee/legal heir were to be entertained by the government while considering an application seeking prior permission. Therefore, the State Government shall ensure that applications seeking prior permission in terms of Section 4(2) shall not be entertained unless the original grantee/legal heir makes the application in person and is summoned before the concerned officer of the government to test the veracity of the claim. It is also necessary to ensure that while granting prior permission, a condition shall be imposed that the sale consideration shall be made only through Account Payable Cheques or Demand Drafts.”</span></b></p><p><b>18. Information regarding the decision taken by the State Government consequent to the direction issued by this Court or if any directions/Circulars issued by the State Government in this regard shall be placed before the Registry within a period of four weeks from the date of receipt of a certified copy of this order.</b></p>', '196e1d46e51e6983baf49143a2b41dcb.JPG', '6b21ae9e0afc14450f7ead5362e8370b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-17', 1, '', '', '2023-04-17 13:23:25', '2023-04-17 13:41:06'),
(2913, 'iWUxFljY9uC9D0oCfQTsosOxy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Land Revenue Act, 1964. Section 133. Where the RTC entries are made without any ‘title facts’ such as grants, alienations, they do not enjoy presumptive value even if they are long standing. Karnataka High Court.', '<p><b>Chikkanarayanappa vs State of Karnataka and others.&nbsp;</b></p><p><b>Writ Petition 26175 of 2019 decided on 13 August 2021.</b></p><p><b>Justice Krishna S. Dixit&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"></span></b></p><p><b>Petitioner, claiming to be one of the brothers of Late Mr. Adyappa allegedly the grantee of the subject land is grieving before the Writ Court for assailing the order dated 10.08.2011, a copy whereof is at Annexure-F, whereby the second respondent has directed deletion&nbsp; of&nbsp; the&nbsp; name&nbsp; of Mr. Adyappa and entry of name of the Government to the Revenue Records. He has also sought for quashing of the order dated 07.03.2019 at Annexure-G and another order dated 24.05.2018 at Annexure-H whereby the subject land has been sanctioned to the fifth respondent – Rajiv Gandhi Rural Housing Corporation Ltd.,</b></p><p><b>h) The contention of learned counsel for the petitioner that the long standing revenue entries cannot be disturbed by the Revenue Courts exercising statutory jurisdiction is ordinarily true; that is how this Court in a catena of decisions has observed; however, this is not a thumb rule; longevity of entries is one of the factors while meddling with them; however, where the entries are made without any ‘title facts’ such as grants/alienations, they&nbsp; do not enjoy presumptive value under Section 133 of the 1964 Act; rulings in this regard galore; therefore, the length of the period during which the entries stood in the name of Mr.Aadyappa will not much come to the aid of petitioner for voiding the impugned order;</b></p><p><b>In the above circumstances, this writ petition being devoid of merits is liable to be dismissed and accordingly it is, costs having been made easy. Liberty is reserved to the petitioner to institute civil suit or take up such other proceeding for establishing his claim for the title to&nbsp; the&nbsp; land.</b></p>', '1a79011b374e7cb93e04aed102f238d8.jpeg', '95f66c11837e6ee4cc9fc64509d10367.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-18', 1, '', '', '2023-04-18 09:04:55', '2023-04-18 09:04:55'),
(2926, '1OGgcdMKtf3rv2qBoUUcOn0GJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Motor Vehicles Act. Bank account passbook which does not contain entries of business income or profit and loss statement cannot be relied on to determine the compensation. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/s. National Insurance Company Ltd Vs Mrs. Asha and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Miscellaneous First Appeal 2603 of 2017 decided on 27 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.B. Prabhakara Sastry.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>The present appellant was respondent No.2 in M.V.C.No.3021/2016, filed by the present respondents No.1 to 3 (claimants) against the present respondent No.4 and the present appellant, arraigning them as respondents No.1 and 2 respectively, in the Court of the Member, Motor Accident Claims Tribunal, and XVI Additional Judge, Court of small Causes, Bangalore, (hereinafter for brevity referred to as “the Tribunal”).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The present respondents No.1 to 3, who were the claimants before the Tribunal in the claim petition filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter for brevity referred to as “the M.V. Act”) have stated that, on the date 27-03-2016, at about 9:15 p.m., the husband of the claimant No.1, who was also the father of the claimant Nos.2 and 3 respectively was going on his Motor Cycle bearing Registration No.AP-03/AN-9551, on Palamaner-Chittoor Main Road, in Chittoor District. While he was near Rangababu Cross, a Motor vehicle Maxi Cab bearing Registration No.KA-19/D-3040, being driven by its driver at a high speed, in a rash and negligent manner, came from Chittoor side and dashed against the Motor Cycle of the deceased. Due to the said road traffic accident, the deceased sustained grievous injuries and succumbed to the said injuries on the spot.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">The claimants in their claim petition have stated that, at the time of the road traffic accident, the deceased was aged about 47 years and was earning a sum of `50,000/- by doing Cloths business and that all the claimants were depending upon his income. With this, they had claimed compensation of a sum of `50,00,000/- from respondents No.1 and 2 therein, arraigning them as the owner and insurer of the motor vehicle Maxi Cab, respectively.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">12.<span style=\"white-space: pre;\">	</span>In the instant case, the claimants could not able to establish the absolute and total negligence and rashness on the part of the driver of the Maxi Cab in driving the said vehicle. On the other hand, the evidence led by none else than PW-2 coupled with the spot sketch at Ex.P-15 would go to show that, the deceased, who was the rider of the Motor Cycle bearing registration No.AP- 03/AN-9551 also has contributed to the occurrence of the road traffic accident. Thus the circumstances of the case, the location/spot of the occurrence of the alleged road traffic accident and the nature of the vehicles would enable this Court to fix the contributory negligence on the part of the deceased rider of the Motor Cycle bearing registration No.AP-03/AN-9551 at 20% and the remaining negligence which would be 80% upon the driver of the Maxi Cab. The Tribunal did not notice these aspects, however being impressed by the charge sheet which was filed against the driver of the Maxi Cab/Tempo traveller bearing registration No.KA-19/D-3040, jumped to the conclusion that the entire rash and negligent driving of the vehicle was solely on the part of the driver of the said Maxi Cab</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>13.. Admittedly, the claimants have not produced any income tax returns of the deceased. On the other hand, they have produced two Pass Books of the Bank Account at Ex.P-8. Admittedly, those two Bank Pass Books are not of any Business Account. One of the Bank Pass Book is of the Indian Bank, which is a Joint Account Pass Book, standing in the name of both the deceased and his wife, who is claimant no.1. Admittedly, it was the deceased alone who was running the business, as such, there was no necessity for him to have a Business account joined by his wife in the form of a Savings Bank account. The other Bank Pass Book in the same exhibit number is of a Savings Bank Account of the deceased with Saptagiri Grameena Bank. The said Bank Pass Book also is not of a Business Account nor it contains the business transactions nor even it is a Profit and Loss statement. As such, merely looking at a Bank Pass Book, it cannot be inferred that the deceased had a particular quantum of income. Needless to say, the alleged occupation of the deceased was business, as such, it is not even an income from salary, so that from the Savings Bank Pass Book, the credit of the salary amount could have been ascertained. Therefore, the only other document which is available to know and assess about the avocation and income of the deceased is the Registration Certificate with the Labour Department at Ex.P-7. The said Certificate, except showing that a Cloth shop is registered in the name of ‘Sri Sai Selections’ and stands in the name of the deceased Sri. A.S. Ganesh, it throws no more light, much less about the alleged income of the deceased. However, considering the fact that PW-1, in her evidence has stated that they were living in their own residential house and that the Labour Department Certificate at Ex.P-7 also shows that the deceased had an established business. Hence, the prevailing notional income for the relevant year, which is `9,500/- per month is too low to accept. Similarly, it also cannot be believed that the deceased had an income as was stated by PW-1 at a sum of `50,000/- per month. Had really the deceased had such an income of `50,000/- per month, he should have definitely been an income-tax assessee and that the claimants should have necessarily produced his income-tax returns and other necessary documents to show his income. Thus, the income of the deceased at `15,000/- per month, which is taken by the Tribunal as the income of the deceased appears to be quite reasonable and just in the circumstances of the case and I retain the same as the income of the deceased.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>The Tribunal has added 30% to the income of the deceased towards future prospects, whereas, as per the decision of the Hon’ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and others, reported in (2017) 16 Supreme Court Cases 680, for the age group of the deceased, who was aged 47 years, for self-employed persons, the future prospects was required to be taken at 25%. Thus, the total income of the deceased per month would come to a sum of `15,000/- + `3,750/- = `18,750/-.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space: pre;\">	</span>As observed above, the Tribunal has not considered the contributory negligence on the part of the deceased rider of the Motor Cycle bearing registration No.AP-03/AN-9551, which is now fixed by this Court at 20%, as analysed above. Thus the compensation for which the claimants are entitled to from the appellant herein (respondent No.2 before the Tribunal) would be 80% i.e. a sum of `16,80,000/- (after deducting 20% towards the contributory negligence fixed on the part of the deceased, from the total sum of compensation awarded by this Court at `21,00,000/-).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space: pre;\">	</span>In addition to the above, without attributing any reasons, the Tribunal has awarded interest at the rate of `9% per annum on the compensation awarded by it. Considering the fact that the rate of interest on the term and fixed deposits in the nationalised Banks in these years are reducing, the awarding of interest at the rate of `9% per annum is also on the higher side and thus the same is required to be reduced and re-fixed at `6% per annum.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space: pre;\">	</span>It is for this limited purpose of modification in the quantification of the compensation including rate of interest and also fixing the contributory negligence upon the deceased rider of the Motor Cycle also at 20%, the interference in the impugned judgment and award is warranted.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space: pre;\">	</span>Barring the above, the appellant/Insurance Company has not raised any other ground worth to be considered and no arguments on any other point were also canvassed from the appellant’s side.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>[i]<span style=\"white-space: pre;\">	</span>The appeal filed by the appellant - Insurance Company stands allowed in part;</b></span></p>', '717159367c790f8bbe7c309a311326df.jpeg', '59be4310f3c4b5cf9a76428c3777e753.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-20', 1, '', '', '2023-04-19 16:20:52', '2023-04-20 06:03:16'),
(2927, 'Hb5AwXnGI91P2CM0SLMFoJEcp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Urban Development Authorities Act. Failure to implement the scheme substantially within five years and shifting of the scheme to other land results in lapsing of the acquisition proceedings. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Praibha Vs The Commissioner Belagavi Urban Development Authority and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 101376 of 2022 decided on 30 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sachin Shankar Magadum.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>The captioned writ petition is filed seeking quashing of final notification dated 30.12.2006 vide Annexure-A and consequently, declaration that acquisition of scheme proposed in the said notification has suffered lapse by operation of law in terms of Section 27 of the Karnataka Urban Development Authorities Act, 1987 (for short, ‘Act, 1987’).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Respondent No.2 enforcing the developmental scheme prepared in that regard has issued preliminary notification specifying the lands which were proposed to be acquired and the petitioner’s land was also notified in the said preliminary notification. Respondent No.2 proceeded to publish final notification in the official gazette and therefore, proposed to acquire the petitioner’s property also. However, having issued the final declaration under Section 19(1) of the Act, respondent No.1 failed to implement the scheme. On the contrary, respondent No.1 has shifted the scheme to some other land.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>On this set of pleadings, writ petition is filed seeking a writ of certiorari to quash final notification dated 30.12.2006 vide Annexure-A and declare that the acquisition and the scheme proposed in the said notification has suffered a lapse by operation of law in terms of Section 17 of the Act, 1987. Consequently, the petitioner is also seeking a writ of mandamus to direct the respondents to release and return the portion of land bearing RS No.66/4 of Savagaon village circle, Uchagaon, Taluk and District-Belagavi.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>On examination of the material on record, this Court would find that though respondent No.1 pursuant to sanction of the scheme issued final notification, however, failed to execute the scheme. Admittedly, final declaration is dated 30.12.2006 and respondent No.1/authority has failed to execute the scheme substantially. Therefore, statutory requirement of substantial implementation of the scheme within five years is not complied in the present case on hand. If respondent No.1 has failed to adhere to time schedule, the same would result in lapse of sanctioned scheme. Therefore, respondent No.1 cannot hold possession of the land when the scheme has lapsed and therefore holding of possession is without any authority of law.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">7.<span style=\"white-space: pre;\">	</span>In view of Section 27 of the Act, 1987, it is therefore, clear that passing of the award, taking of possession, substantial implementation of the scheme prepared in respect of which a declaration under sub- section (1) of Section 17 was made, must be implemented within a period of five years from the date of declaration made under sub-section (1) of Section 19 of the Act, 1987.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>a)<span style=\"white-space: pre;\">	</span>Writ Petition stands allowed.</b></font></span></p>', 'e13dbf47e69fac6b8431c4049aebc7bd.jpeg', '62937388b0f760a3698a76cb1bf86123.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-20', 1, '', '', '2023-04-19 16:22:13', '2023-04-20 10:28:18'),
(2930, 'xVPkrFXbpMSVkb9L2tG7gGOnp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'If the plaintiff who has secured an exparte order of temporary injunction fails to comply with the requirement of Order 39 Rule 3 (a) & (b) CPC, the court is bound to vacate the injunction order. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Roopa D Vs Rohini Sindhuri and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 5814 of 2023 decided on 11 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The point to be answered in this writ petition filed under Article 227 of the Constitution of India is : “If the plaintiff who has secured an exparte order of temporary injunction fails to comply with requirement of clauses (a) and (b) of proviso to Order 39 Rule 3 CPC, should the court vacate the order of temporary injunction?” </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2.<span style=\"white-space: pre;\">	</span>Given a look at the events that led to this writ petition being filed, the Additional City Civil Judge, (CCH- 74), Bengaluru, in O.S.25288/2023, a suit for damages in relation to alleged defamation, passed an exparte order of temporary injunction on 23.2.2023 against defendants 1, 2 and 4 to 60 and directed respondent no.1 who is the plaintiff in the suit to comply with requirement of clauses (a)<span style=\"white-space: pre;\">	</span>and (b) of proviso to Rule 3 of Order 39 CPC. The plaintiff filed an affidavit before the court reporting compliance, but there was no compliance as regards the petitioner herein, who is defendant no.60 in the suit. After she received the suit summons and appeared before the court on 7.3.2023, she brought to the notice of the court by filing a memo that there was no compliance and requested the court not to extend the exparte temporary injunction. The plaintiff, while seeking extension of the interim order filed a memo stating that she could not comply with requirement of clauses (a) and (b) of Order 39 Rule 3 due to inadvertence, but however stated in the memo that on 27.2.2023, she sent to defendant no.60 the intimation of grant of exparte order in her favour. In spite of coming to know about non-compliance within twenty four hours, the trial court extended the interim order on 7.3.2023. The order of extension is challenged in this writ petition.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">8.<span style=\"white-space: pre;\">	</span>Given an analysis, the general rule apparent is that whenever an application for temporary injunction is made, notice of it must be given to the opposite party. The words “in all cases” have significance and conveys a meaning that issuance of notice to the opposite party is a must. But in an exceptional case, that means if the party applying for injunction makes out a case of extreme urgency and the delay on account of time consumed in service of notice would have the effect of defeating the very purpose of claiming the order of temporary injunction, court can grant an order of temporary injunction which is usually called ‘exparte order’. In case court decides to grant exparte order, it also directs compliance under clauses (a) and (b) of the proviso to Rule 3. The reason behind directing compliance is quite obvious, it is with a view to bringing to the notice of the party about the order passed against him so that he can take immediate action to get that order modified or vacated or set aside or oppose the continuance of that order. The compliance to be made under clauses (a) and (b)<span style=\"white-space: pre;\">	</span>is mandatory, for action as envisaged under Rule 2A of Order 39 can be initiated for violation or disobedience of the order provided the opposite party is communicated of the order. What happens if there is no compliance? In my considered opinion, if there is no compliance, exparte order of temporary injunction will not come into effect at all; and the moment non-compliance is brought to the notice of the court the order must be vacated, the reason being that a party who fails to perform mandatory requirement loses his right to seek continuance of the order.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>Therefore the legal position becomes clear that exparte order of injunction has to be vacated if there is no compliance as mandated in Rule 3 Order 39 CPC. The argument of Sri. P.N.Rajeshwara that the order remains in force, but no action for disobedience can be initiated in case of failure to comply with Rule 3, cannot be accepted. In the light of the judgments of the Supreme Court in Shiv Kumar Chadha and A. Venkatasubbiah Naidu, the decision of the Bombay High Court in Vascon Engineers Ltd., does not help the plaintiff. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>In the case on hand the plaintiff has admitted non- compliance concerning defendant no.60. The trial court should not have routiely extended the interim order when its attention about non-compliance was drawn. Therefore the impugned order dated 7.3.2023 stands vacated as it relates to the petitioner – defendant no.60 only. Writ petition is therefore allowed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space: pre;\">	</span>However it is made clear that this order does not come in the way of disposal of the application for temporary injunction on its merits after hearing the parties.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '84198373b41ff4cba13fc746ef846910.JPG', 'dffe9a6708b080402aaa0139cb11d7fa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-21', 1, '', '', '2023-04-20 13:57:52', '2023-04-21 03:22:59'),
(2932, '94tkbcvdloJXnEi7r3HXjZHrw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Intra-departmental communications are not Government orders and cannot have any applicability or operation over and above the statutory provisions or the executive Government Orders validly issued on the subject. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sumesh. U and others Vs The Revenue Divisional Officer Palakkad and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WP(C) 3538 of 2023 decided on 30 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Anu Sivaraman.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The prayers in these writ petitions are for consideration of the\r\napplication submitted by the petitioners under Section 27A of the\r\nKerala Conservation of Paddy Land and Wetland Act, 2008 (for\r\nshort, \'the 2008 Act\') without insisting on payment of fees.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. It is submitted that the petitioners are owners in\r\npossession of the property, the extent of property in both these\r\ncases is below 25 cents. It is submitted that the property was\r\npurchased from the prior owner and the extent of the property was\r\nidentical. It is, therefore, contended that since the extent of the\r\nproperty as on 30.12.2017 was below 25 cents, the petitioners are\r\nentitled to consideration of their Form 6 applications, without\r\npayment of any fee as provided in Section 27A of the 2008 Act and\r\nRule 12(9) and the Schedule to the Kerala Conservation of Paddy\r\nLand and Wetland Rules, 2008. It is submitted that the respondents\r\nare refusing to consider the application on the ground that the\r\nproperties were purchased on a later date and that therefore, the\r\nfees have to be paid.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. A statement has been placed on record by the 3rd\r\nrespondent in W.P.(C) No.4450/2023 contending that the exemption <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">from payment of fee for the conversion of the property is provided\r\nonly to specific extents of property which are below 25 cents each.\r\nIt is contended that since the petitioners had purchased the\r\nproperties after 2017, they are not entitled to the exemption. It is\r\ncontended that even if properties having a lesser extent is\r\npurchased after 2017, the benefit of conversion without fee will be\r\nlost.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Having considered the contentions advanced on either\r\nside, I notice that Section 27A of the 2008 Act provides for\r\napplication seeking permission for use of unnotified land for other\r\npurposes. It is specified that land below an extent of 25 cents can\r\nbe converted without payment of fees.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. A reading of the provisions of the Act, the Rules, the\r\nSchedule as well as Ext.R3(a) Government Order would make it\r\namply clear that the exemption would be lost only in case there is a\r\ntransaction after 30.12.2017 by which, a property having a larger\r\nextent is fragmented to make the individual parcels of land of an\r\nextent of less than 25 cents. The contention that any property\r\npurchased after December, 2017 would loss the exemption even\r\nwhen the said property was less then 25 cents in extent even prior\r\nto such transaction cannot be accepted in view of the specific\r\nlanguage of the Act, the Rule and the Schedule. In the above view\r\nof the matter, I am of the opinion that the contentions raised in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">statement are completely untenable. The communications issued,\r\nwhich do not have the force of law, cannot stand in the way of\r\nconsideration of applications in accordance with law.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>These writ petitions are, accordingly, ordered directing\r\nthe RDO to pass appropriate orders on the Form 6 applications\r\nsubmitted by the petitioners without insisting on the payment of\r\nfee.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd7b7ba9aec21ab5f411fa973721df045.jpeg', '068a0802313bdf0c34714d68fb1efbd5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-21', 1, '', '', '2023-04-20 15:09:53', '2023-04-21 11:43:32');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2928, 'ZpYO944WSiP3lPQPppxBDkSDR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Tail wagging the Dog”. Amendment to Rule 9 of the Births and Deaths Rules taking away power of the Magistrate and placing it at the mercy of the Assistant Commissioner is ultravires the parent Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sudharshan V. Biradar Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 15800 of 2022 decided on 17 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is before this Court calling in question a notification dated 18.07.2022 issued by the State Government in exercise of its powers under the Registration of Births and Deaths Act, 1969 (‘the Act’ for short) contending that the amendment is ultra vires the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Shorn of unnecessary details, facts in brief, necessary for the resolution in the lis, are as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is a practicing Advocate enrolled in the Karnataka State Bar Council.  The Government of India promulgates the registration of Births and Deaths Act, 1969 and permits the State Governments to bring in Rules in furtherance of the Act with the prior approval of the State Government. In terms of Section 30 of the Act, Karnataka Registration of Births and Deaths Rules, 1970 was promulgated. The Rules of 1970 comes to be repealed by 1999 Rules. Therefore, the Rules with the corresponding Act which was and is holding the field is of 1999. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>On 18.07.2022, the Government of Karnataka brings in an amendment to Rule 9 of the Rules of 1999  substituting the words ‘a Magistrate of First Class or a Presidency Magistrate’ to that of an ‘Assistant Commissioner (Sub-Divisional Magistrate)’. Protest erupted on this amendment contending that a power that was given to the judiciary is taken away and laid at the hands of the Revenue Authorities. Representation is also submitted to the Government by the Karnataka State Bar Council seeking deletion of the amendment or withdrawal of the amendment. Reasons were indicated in the representation as to why the amendment was unworkable. When the State did not heed to the representation of the Karnataka State Bar Council, an Advocate has presented the subject petition contending that the amendment Act runs counter to the parent Act and is therefore, ultra vires the parent Act and to be quashed on account of it being unconstitutional.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>I have given my anxious consideration to the submissions made by the learned senior counsel and other respective learned counsel and have perused the material on record. In furtherance whereof, the issue that falls for my consideration is: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“Whether the Karnataka Registration of Births and Deaths (Amendment) Rules, 2022 amending Rule 9 of the Births and Deaths Rules, 1999 is ultra vires the Registration of Births and Deaths Act, 1969?” </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">9.<span style=\"white-space: pre;\">	</span>To consider and answer the said issue, it is necessary to notice the provisions of law that are germane, i.e., the Registration of Births and Deaths Act, 1969, Registration of Births and Deaths Rules, 1999 and the impugned amendment.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">Section 13 deals with delayed registration of births and deaths. Any birth or death of which information is given to the Registrar of births and deaths, after the expiry of the period specified, but within 30 days of its occurrence, shall be registered on payment of such late fee. Any birth or death of which delayed information is given after 30 days, but within one year, shall be registered with the written permission of the prescribed authority and on payment of prescribed fee. Sub-section (3) of Section 13 mandates that any birth or death which has not been registered within one year of its occurrence can also be registered and such registration shall happen only after an order by a Magistrate of the First Class or a Presidency Magistrate under sub-section (3) on verifying the correctness of the birth or death.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Section 30 empowers the respective State Governments to make Rules to carry out the purposes of the Act with the approval of the Central Government. Rules to be made for several purposes are also enumerated in Section 30.  Therefore, Section 30 empowers the State Government to make Rules to carry out purposes of the Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>When the Act came into force in the year 1969, the Government of Karnataka had promulgated the Karnataka Registration of Births and Deaths Rules, 1970.  It held the field up to 1999. By a notification dated 30.12.1999, the Government of Karnataka in exercise of its powers conferred under Section 30 of the Act, notifies Rules to be coming into effect from 01.01.2000.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Sub-Rule (3) of Rule 9, again mandates that any birth or death which has not been registered within one year of its occurrence shall be registered only on an order of a Magistrate of the First Class or a Presidency Magistrate.  Therefore, sub-rule (3) of Rule 9 of the Rules was in consonance with the Act i.e., sub- section (3) of Section 13 of the Act. This again held the field upto 2022. The Government of Karnataka by a notification dated 18.07.2022 brings in an amendment to Rule 9 particularly to sub- rule (3) of Rule 9 of the Rules.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>The power to make Rules is delegated to the State Governments under Section 30 of the Act.  Therefore, the Rules that are made are delegated legislation. Delegated legislation can be challenged before the Courts on the ground that it is ultra vires the parent Act. The Court examining the said issue can adjudge the legality and validity of the delegated legislation on the touchstone of the doctrine of ultra vires. The doctrine of ultra vires has two aspects, substantive and procedural.  When the delegated legislation travels beyond the scope of the Authority conferred by or is in conflict with the parent statute, it becomes invalid on the ground of it being substantive ultra vires. If any prescribed procedure under the parent statute is deviated while framing the Rules, in terms of power conferred under the parent Act, such a Rule would be declared ultra vires the parent Act, for violation of the procedure that is stipulated under the parent Act for it to become procedural ultra vires.  What is alleged in the case at hand is substantive ultra vires and not procedural ultra vires. Whenever any person or body of persons exercising statutory authority acts beyond the powers conferred upon it by the statute such acts become ultra vires and resultantly void.  Therefore, substantive ultra vires would mean delegated legislation goes beyond the scope of the authority conferred on it by the parent statute. It is the fundamental principle of law that a public authority cannot act outside the powers that is conferred upon it.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 12.<span style=\"white-space:pre\">	</span>On the bedrock of the aforesaid principles, the challenge in the case at hand is required to be noticed. The offending provisions of law are extracted hereinabove. Sub-Section (3) of Section 13 of the Act which deals with delayed registration of births and deaths mandates that any birth or death which has not been registered within one year of its occurrence shall be registered only on an order made by a Magistrate of the First class or a Presidency Magistrate after verifying the correctness of the birth or death. Therefore, it is the judicial power conferred upon the First Class Magistrate under the Act and such registration on delay can be only on  an  order  made  by  the  Magistrate.   Therefore,  the  power conferred under the Act is neither quasi judicial nor administrative, it is “Judicial”.  If Section 13 of the Act confers certain judicial power upon a Magistrate, it is trite that the Rules cannot take it away by going beyond or deviating from what is mandated under the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>The power no doubt is available under Section 30 of the Act under any State Government to promulgate Rules. Rules are promulgated by the Government of Karnataka. The Rules initially promulgated and which held the field qua Rule 9 of the year 1999. Sub-rule (3) of Rule 9 clearly depicted what is depicted under the Act, as sub-rule (3) of Rule 9 of the Rules maintains the power of the Magistrate to pass an order in the circumstance of delayed registration of a birth or a death.  The amendment to Rule 9 notified on 18.07.2022 substitutes the words with “An Assistant Commissioner (Sub-Divisional Magistrate)”.  The mandate of the Act is tinkered by the amendment Rule which runs counter to the Act. The amendment to the Rule, a delegated legislation is to the effect that the parent Act itself is amended.  This power, I am of the view, is unavailable to the State Government in exercise of its power under Section 30 of the Act. A delegated legislation cannot travel beyond the parent Act which delegates such power to the State to legislate for the purposes of the Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>In the light of the provisions as afore-quoted, the law laid down by the Apex Court in the afore-quoted judgments and judgment rendered by the Division Bench of High Court of Madhya Pradesh, there can be no trace of a doubt that the amendment to Rule 9 of the Rules as notified on 18.07.2022 travels beyond the parent Act i.e., the enabling Act, as the amendment runs completely counter to sub-section (3) of Section 13 of the Act for it is inconsistent with the said provision of law. Therefore, the amendment Rules notified on 18.07.2022 would lose its legal legs to stand, as it is not intra vires the Act, but ultra vires; if it is ultra vires the parent Act, it cannot but be held to be illegal and a nullity. On all the aforesaid analysis, if the amendment Rule of 2022 is not obliterated “it would be permitting the tail to wag the dog”.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space: pre;\">	</span>Writ Petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '29de875bd19160bd2c6a164a29557df9.jpeg', 'c03bbd7b4c78afb8cef1a419e69ce1a3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-20', 1, '', '', '2023-04-19 16:22:59', '2023-04-20 03:21:28'),
(2919, 'Kj2ioO0oiqGcZnVKNqx5MG9F9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Succession Act. Amended Section 6. Person who alienates properties in violation of injunction order of the court cannot take advantage of the alienation by taking shelter under the proviso to Section 6(1) of the Act. Karnataka High Court. ', '<p class=\"MsoNormal\"><span style=\"font-weight: bolder;\">THIRAKAVVA and others vs&nbsp;&nbsp;RATNAVVA and others&nbsp;<br>REGULAR FIRST APPEAL NO.1659 OF 2007 decided on 5 April 2023<br>JUSTICE ANANT RAMANATH HEGDE</span></p><p class=\"MsoNormal\"><span style=\"font-weight: bolder;\">The respondents/plaintiffs in this appeal had to wait for 16 years for the final hearing and a verdict. The preliminary decree for partition in favour of the plaintiffs in O.S.No.12/1995 on the file of the Senior Civil Judge, Ranebennur, is contested by the defendants. 28 years have elapsed since the claim for partition is made by the daughter and the wife of Suresh Kalledevar.</span></p><p class=\"MsoNormal\"><span style=\"font-weight: bolder;\">17. Following points emerge for consideration.<br>(i) Whether the alienation of coparcenary property before 20th December 2004, in contravention of the Court order restraining alienation, is a valid alienation falling under proviso to&nbsp;Section 6(1) of the Hindu Succession Act 1956?<br>(ii) Whether the property given to the daughter and the wife in lieu of arrears of maintenance is to be treated as allotment of share in the partition?</span></p><p class=\"MsoNormal\"><span style=\"font-weight: bolder;\">18. Section 6 of the Act, which was amended in the year 2005 conferring the status of a coparcener to a daughter of a male Hindu entertains few exceptions. Alienation of properties before 20th December 2004 is an exception to Section 6(1) of the Act. If the coparcenary properties are alienated before 20th December 2004, then the daughter who is given the status of a coparcener cannot claim a share in the alienated properties.</span></p><p class=\"MsoNormal\"><span style=\"font-weight: bolder;\">19. The alienation referred to in the proviso to Section 6(1) of the Act has to be necessarily the alienation that is lawful. Admittedly, as on the date of the execution of the gift deeds dated 18.2.2003, there was a prohibitory order restraining defendant no.1 from alienating the suit schedule properties. The properties are transferred in the&nbsp;name of his daughter in violation of the prohibitory order. The daughter of the second wife is claiming exclusive ownership of the properties taking shelter under the proviso to Section 6(1) of the Act. Since the alienation is in the teeth of the prohibitory order of the Court, the wrongdoer (seller) cannot be granted the protection provided under the proviso to Section 6(1) of the Act. If the alienation is held to be valid, then it amounts to rewarding the wrongdoer/ the 1st defendant who was bound to obey the order passed by the Court. Moreover, in this case, the transferee is also a party to the proceeding where the interim order is passed and was very much aware of the interim prohibitory order. Thus alienations referred to above cannot defeat the rights conferred on the daughter.</span></p><p class=\"MsoNormal\"><span style=\"font-weight: bolder;\">22. The person who has alienated the properties in violation of the court order, cannot be permitted to take advantage of the alienation, by taking shelter under the proviso to Section 6(1) of the Act. Proviso to Section 6(1) applies only to alienations that are legal and valid.&nbsp;<br></span></p><p class=\"MsoNormal\"><span style=\"font-weight: bolder;\">&nbsp;23. The other contention of Mr.Mehta that plaintiffs had no right over the suit properties when the suit was filed in the year 1995, (before the commencement of amended Section 6 of the Act ) is concerned, said contention is not available as amended Section 6 of the Act is held to be retrospective in operation. Since Section 6 is retrospective in operation, ipso jure it is to be held that even in the year 1995, the daughter had the right over the properties and had a cause of action to claim a share in the properties.<br></span></p><p class=\"MsoNormal\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">24. The contention of the appellants that the plaintiffs were given properties before filing the suit and the same should be treated as the share allotted to the plaintiffs, has no merit. The records would reveal that certain properties are allotted to the plaintiffs in lieu of their claim relating to arrears of maintenance. The properties given in lieu of arrears of maintenance cannot be equated with the share in the properties. The right to property as a coparcener/sharer is different from the right of maintenance. There can be a right to claim maintenance without there being a right in the property. In this case, the properties are transferred in favour of the plaintiffs towards discharge of the arrears of maintenance ordered in some other proceeding. If a property is transferred in lieu of arrears maintenance, said the transfer will only discharge the liability towards arrears of maintenance and nothing more. Said transfer property will not extinguish the right of the person to claim a share in the property if such person had a share in the property. In other words, the discharge of liability towards arrears of maintenance&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cannot be allowed to be set off against the claim for partition. Thus, the contention that the properties transferred towards discharge of arrears of maintenance have to be treated as allotment of share in the property is not accepted.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">&nbsp;</span></span></p><p class=\"MsoNormal\"><br></p>', '7de94be7b76f16b1a46eb886dc6b71d5.jpeg', 'c6628a55570509a49d99d40b94746b41.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-18', 1, '', '', '2023-04-18 17:10:07', '2023-04-18 17:10:07'),
(2920, 'HBFNV3HI7iqPO8fymoMgbPcaC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“The concept of ‘justice at the doorstep’ flowing from Articles 14 and 21 can’t be an empty formality”. Karnataka High Court suggests increase in the pecuniary jurisdiction of the District Courts to avoid flooding of the First Appeals in the High Court. ', '<p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">THIRAKAVVA and others vs  RATNAVVA and others </span><br></b></p><p><b>REGULAR FIRST APPEAL NO.1659 OF 2007 decided on 5 April 2023</b></p><p><b>JUSTICE ANANT RAMANATH HEGDE</b></p><p><b>The respondents/plaintiffs in this appeal had to wait for 16 years for the final hearing and a verdict. The preliminary decree for partition in favour of the plaintiffs in O.S.No.12/1995 on the file of the Senior Civil Judge, Ranebennur, is contested by the defendants. 28 years have elapsed since the claim for partition is made by the daughter and the wife of Suresh Kalledevar.</b></p><p><b>17. Following points emerge for consideration.</b></p><p><b>(i) Whether the alienation of coparcenary property before 20th December 2004, in contravention of the Court order restraining alienation, is a valid alienation falling under proviso to Section 6(1) of the Hindu Succession Act 1956?</b></p><p><b>(ii) Whether the property given to the daughter and the wife in lieu of arrears of maintenance is to be treated as allotment of share in the partition?</b></p><p><b>18. Section 6 of the Act, which was amended in the year 2005 conferring the status of a coparcener to a daughter of a male Hindu entertains few exceptions. Alienation of properties before 20th December 2004 is an exception to Section 6(1) of the Act. If the coparcenary properties are alienated before 20th December 2004, then the daughter who is given the status of a coparcener cannot claim a share in the alienated properties.</b></p><p><b>19. The alienation referred to in the proviso to Section 6(1) of the Act has to be necessarily the alienation that is lawful. Admittedly, as on the date of the execution of the gift deeds dated 18.2.2003, there was a prohibitory order restraining defendant no.1 from alienating the suit schedule properties. The properties are transferred in the name of his daughter in violation of the prohibitory order. The daughter of the second wife is claiming exclusive ownership of the properties taking shelter under the proviso to Section 6(1) of the Act. Since the alienation is in the teeth of the prohibitory order of the Court, the wrongdoer (seller) cannot be granted the protection provided under the proviso to Section 6(1) of the Act. If the alienation is held to be valid, then it amounts to rewarding the wrongdoer/ the 1st defendant who was bound to obey the order passed by the Court. Moreover, in this case, the transferee is also a party to the proceeding where the interim order is passed and was very much aware of the interim prohibitory order. Thus alienations referred to above cannot defeat the rights conferred on the daughter.</b></p><p><b>22. The person who has alienated the properties in violation of the court order, cannot be permitted to take advantage of the alienation, by taking shelter under the proviso to Section 6(1) of the Act. Proviso to Section 6(1) applies only to alienations that are legal and valid. </b></p><p><b> 23. The other contention of Mr.Mehta that plaintiffs had no right over the suit properties when the suit was filed in the year 1995, (before the commencement of amended Section 6 of the Act ) is concerned, said contention is not available as amended Section 6 of the Act is held to be retrospective in operation. Since Section 6 is retrospective in operation, ipso jure it is to be held that even in the year 1995, the daughter had the right over the properties and had a cause of action to claim a share in the properties.</b></p><p><b>24. The contention of the appellants that the plaintiffs were given properties before filing the suit and the same should be treated as the share allotted to the plaintiffs, has no merit. The records would reveal that certain properties are allotted to the plaintiffs in lieu of their claim relating to arrears of maintenance. The properties given in lieu of arrears of maintenance cannot be equated with the share in the properties. The right to property as a coparcener/sharer is different from the right of maintenance. There can be a right to claim maintenance without there being a right in the property. In this case, the properties are transferred in favour of the plaintiffs towards discharge of the arrears of maintenance ordered in some other proceeding. If a property is transferred in lieu of arrears maintenance, said the transfer will only discharge the liability towards arrears of maintenance and nothing more. Said transfer property will not extinguish the right of the person to claim a share in the property if such person had a share in the property. In other words, the discharge of liability towards arrears of maintenance cannot be allowed to be set off against the claim for partition. Thus, the contention that the properties transferred towards discharge of arrears of maintenance have to be treated as allotment of share in the property is not accepted. </b></p><p><b>26. As already noticed, at the beginning of the\r\njudgment, 28 years have elapsed since the claim for\r\npartition. 16 years have elapsed since the appeal is filed.\r\nIdeally, the final verdict in an appeal should not take more\r\nthan 2 years after admission. An appeal from the stage of\r\nfiling till the disposal does not involve elaborate timeconsuming procedures like a suit. It is high time to explore the possible solution to expedite the hearing of the\r\nappeals. Hence, the following discussion:  </b></p><p><b>(vi) When the Senior Civil Courts are conferred with\r\njurisdiction to decide the civil suits without any\r\nupper pecuniary limit, logically District Courts\r\nwho decide the first Appeals arising from the\r\njudgment and decree from the Senior Civil Judge <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court should also have no restrictions on the\r\nupper pecuniary limit. Thus, the upper pecuniary\r\nlimit of Rs.10 lakhs on the First appeals under\r\nSection 96 of the Code in District Courts defies\r\nlogic.</span></b></p><p><b>(vii) The escalation in the value of the properties has\r\nled to more Regular First Appeals being filed\r\nunder Section 96 of the Code before the High\r\ncourts. For this reason, Section 5 of the High\r\nCourt Act providing for appeal under Section 96 of\r\nthe Code to the High Court has proved\r\ncounterproductive.</b></p><p><b>(viii) Apart from the escalation in property value, there\r\nare many compelling reasons to have a re-look at\r\nthe provisions of the Act of 1961 and the Act of\r\n1964 governing the jurisdiction of the courts\r\nrelating to First Appeals. The State in\r\nimplementing the policy “Justice to the doorstep”\r\nhas established a good number of additional\r\nDistrict courts in various district headquarters and the taluks and a good number of itinerary courts\r\nin various taluks. The policy is indeed laudable.\r\nHowever, if the concept of “Justice to doorstep” is\r\nto be realized in its letter and spirit, it is high time\r\nto amend the provisions of the law relating to the\r\njurisdiction of the High Court and the District\r\nCourt to hear the first appeal under Section 96 of\r\nthe Code governed by Section 5 of the Act of 1961\r\nand Section 19 of the Act of 1964. </b></p><p><b>27. Though the above-suggested measures are\r\nlikely to increase the number of Regular Second Appeals,\r\none cannot be oblivious to the possibility that quite a few\r\ncases may get settled or attain finality at the District\r\nCourts level. Excluding those cases if all other contested\r\nmatters come to the High Court in the form of Regular\r\nSecond Appeals, given the scope of the Regular Second\r\nAppeals, quite a few of them may not get admitted and\r\nare likely to be decided in a comparatively less period. </b></p><p><b>29. The person seeking justice cannot afford to wait\r\nfor decades. It certainly does not augur well for society at\r\nlarge. After all, life is too short to be spent litigating for\r\ndecades in courts. The amendments indicated appear to\r\nbe long overdue. Ours is a fast-developing nation that has\r\nsent two missions to Moon and one to Mars. When it\r\ncomes to law reforms, we cannot afford to lag behind. We\r\nhave no option but to initiate ‘Law Reforms’, particularly in\r\nprocedural law, to meet the challenges emerging in the\r\nmodern era.  </b></p><p><b>31. Registry to place the copy of this judgment\r\nbefore the Chief Justice for His Lordship’s kind\r\nconsideration and copy of the judgment be also circulated\r\nto the Chief Secretary of the State Government and the\r\nPrincipal Secretary to the Department of Law and\r\nParliamentary Affairs. <br></b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></p>', '0ea6a69c64cc74b475dde7184347da8e.jpeg', '9a7138025500c0f46b4155b6c416df34.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-18', 1, '', '', '2023-04-18 17:38:13', '2023-04-18 17:39:27'),
(2929, 'WfrOF59GJQYQgVKtXnjvQx6f1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Police Act. Failure to provide reasonable opportunity to the person sought to be removed from the local limits of his jurisdiction renders the order illegal. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ravi Naik Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 102186 of 2023 decided on 5 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sachin Shankar Magadum.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The captioned writ petition is filed assailing the order passed by respondent No.3/Assistant Commissioner ordering for externment of petitioner by invoking Section 56 of the Karnataka Police Act, 1963 (for short, ‘Act, 1963’). The said order is under challenge.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>Though the petitioner has efficacious remedy by way of appeal, this Court is not inclined to relegate the petitioner to avail remedy of appeal. The impugned order under challenge is liable to be quashed on two counts. The order under challenge does not meet minimum requirement of Section 58 of the Act, 1963.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>Now coming to the present case on hand, this Court would find that the authority acted hastily while passing the order under Section 56 of the Act, 1963. The petitioner was notified and was called upon to appear on 13.03.2023. On the said day, the petitioner failed to appear and therefore, matter was adjourned to 15.03.2023. On 15.03.2023, respondent No.3/Assistant Commissioner proceeded to reserve the matter for orders. Order sheet clearly indicates that there is no compliance of procedure contemplated under Section 58 of the Act, 1963.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>Natural justice is an expression of English common law. It involves procedural requirement of fairness. The principles of natural justice are not embodied rules and are not codified. They are judge made rules. Essentially, the natural justice requires that a person receives fair and unbias hearing before a decision is made that will negatively affect them. The three requirement of natural justice that must be met in every case are: adequate notice, fair hearing and no bias. However, in the present case on hand, there is total disregard of provisions of Section 58 of the Act, 1963. Respondent No.3 without affording any opportunity has proceeded to order for externment of petitioner by invoking Section 56 of the Act, 1963.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>In the order under challenge, it is indicated that the petitioner has admitted that he has pleaded guilty in offences covered under Section 78(3) of the Act, 1963. Even this aspect was required to be looked into by the authority before invoking Section 56 of the Act, 1963. Whether these offences which would attract Section 56 of the Act, 1963 in the light of judgment rendered by the Hon’ble Apex Court in the case of Ravi Namboothiri Vs. K.A. Baiju & Others needs consideration. The Hon’ble Apex Court in the said judgment was of the view that offences falling under the provisions of the Act, 1963 are not substantive offences and therefore, said offences may not constitute a ground for initiating proceeding under Section 56 of the Act, 1963. This Court would also find that no materials are forthcoming in the order under challenge, which enabled the authority to take cognizance of the fact that the petitioner has pleaded guilty in five cases.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>Be that as it may, whether these five cases alleged to have been committed under Section 78(3) of the Act, 1963 would constitute conviction needs to be examined by the authority in the light of the dictum laid down by the Hon’ble Apex Court in the judgment cited supra. The impugned order is passed in gross violation of principles of natural justice. Therefore, this Court exercising discretionary power under Article 226 of the Constitution of India deems it fit to set-aside the order under challenge.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>a)<span style=\"white-space: pre;\">	</span>Writ Petition stands allowed.</b></font></span></p>', 'e024bfe528ec44a911b7622a5e9d5b3f.jpeg', '327b71d23641e4579485e654cbd9079f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-20', 1, '', '', '2023-04-19 16:23:53', '2023-04-20 12:21:10'),
(2931, '22OxaefQU5WGj9UnFP7vT50I3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'NDPS Act. Seizure of commercial quantity. Court can grant bail only after satisfying two conditions i.e. there are ‘reasonable grounds’ to believe that the accused is not guilty of the offence and he will not commit any offence while on bail. Kerala HC.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Riyas Vs State of Kerala and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bail Appl 939 of 2023 decided on 8 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A. Badharudeen.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The prosecution case is that, on the basis of a reliable\r\ninformation, search was conducted at Room No.301 of Sreego\r\nResort near Bakel Fort, doubting possession of Narcotic Drugs\r\nand Psychotropic Substances, by the accused. On search, 25.33\r\ngm of MDMA and 6.380 gm of Hashish Oil, were recovered from\r\nthe bag kept at the room of the accused. Subsequently, his body <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">search was conducted and 49.430 gm of MDMA was recovered\r\non body search. On this premise, crime, alleging commission of\r\noffences punishable under Sections 22(c) and 20(b)(ii)(A) of the\r\nNarcotic Drugs and Psychotropic Substances Act, 1985 (for short,\r\n\'the NDPS Act\' hereinafter) was registered and the same is on\r\ninvestigation.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Now, the question is; merely because Section 50 was\r\nnot complied, while conducting body search of the petitioner, the\r\nrecovery effected in relation to the contraband found to be\r\npossessed by him at his room, in a bag, for which, compliance of\r\nSection 50 is not mandatory, also to be disbelieved so as to dilute\r\nthe rigor under Section 37 of the NDPS Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. It is settled law that compliance of Section 50 is not\r\nmandatory in relation to search other than body search. If so, non\r\ncompliance of Section 50 will not vitiate the recovery otherwise <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">effected by the Investigating Officer in this crime. In view of the\r\nmatter, merely because there is violation of the stipulations\r\ncontained in Section 50, while conducting body search, the same\r\nshall not absolve the criminal culpability of the accused with\r\nregard to the contraband seized otherwise, for which, compliance\r\nof Section 50 is not mandatory. Here, commercial quantity of\r\ncontraband was seized from the accused from the bag kept at his\r\nroom, therefore, grant of bail in this case is interdicted by the\r\nspecial provision under Section 37 of the NDPS Act. In this case,\r\nrecovery of commercial quantity of contraband is well made out\r\nexcluding the recovery based on body search and therefore,\r\nrecovery of commercial contraband from the possession of the\r\naccused is well established, prima facie.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. On a perusal of Section 37(1)(a)(i), when the Public\r\nProsecutor opposes bail application of a person involved in a\r\ncrime, where commercial quantity of the contraband was seized,\r\nthe Court can grant bail only after satisfying two conditions: viz;\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(1) There are ‘reasonable grounds’ for believing that the accused\r\nis not guilty of such offences and </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(2) he will not commit any\r\noffence while on bail.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. The Apex Court considered the meaning of ‘reasonable\r\ngrounds’ in the decision reported in (2007) 7 SCC 798, Union of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">India v. Shiv Shankar Kesari and held that the expression\r\n‘reasonable grounds’ means something more than prima facie\r\ngrounds. It connotes substantial probable causes for believing that\r\nthe accused is not guilty of the offence charged and this\r\nreasonable belief contemplated in turn points to existence of such\r\nfacts and circumstances as are sufficient in themselves to justify\r\nrecording of satisfaction that the accused is not guilty of the\r\noffence charged.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. On a plain reading of Section 37(1) (b) and 37(1)(b)(ii)\r\nof the NDPS Act, within the ambit of the Settled law, it has to be\r\nunderstood that two ingredients shall be read conjunctively and\r\nnot disjunctively. Therefore satisfaction of both conditions are sine\r\nqua non for granting bail to an accused who alleged to have been\r\ncommitted the offences under Section 19 or Section 24 or Section\r\n27A and also for the offences involving commercial quantity as\r\nprovided under Section 37(1)(b) of the NDPS Act. Unless Section\r\n37 is not amended by the legislature in cases specifically referred\r\nunder Section 37(1)(b) of the NDPS Act, the Court could not grant\r\nbail without recording satisfaction of the above twin ingredients.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. Thus, while granting bail to an accused, who alleged to\r\nhave committed offences under the NDPS Act involving,\r\ncommercial quantity, where learned Public Prosecutor opposes\r\ngrant of bail, this Court must satisfy that there are reasonable\r\ngrounds for believing that the accused is not guilty of the offence\r\nand he will not likely to commit any offence while on bail.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. Going by the prosecution allegations, this Court could\r\nnot satisfy the above conditions in any manner. Therefore, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner is not liable to be released on bail.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Accordingly, this bail application stands dismissed</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'cf26c37df72d0ca2a131d235909c231a.jpeg', 'c9ca8b1ac8059a0f6c82ce4a8b9087a4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-21', 1, '', '', '2023-04-20 14:47:57', '2023-04-21 08:01:01');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2933, 'fdmgCoJVtwWsijvtyBKXSvwiC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Registering FIR for non-cognizable offences without taking permission from the Magistrate and filing charge sheet without obtaining sanction is not sustainable under the law. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shivaraj Tangadagi and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 879 of 2022 decided on 5 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Natarajan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This petition is filed by the petitioner-accused Nos.1 and 2 under Section 482 of Cr.P.C. for quashing the criminal proceedings in C.C. No.118/2021 registered by Hunsuru Town Police, Mysuru District and charged sheeted of the offences punishable under Sections 123(3) Representation of People Act, 1951 and 1988 (hereinafter referred to as RP Act) and Sections 171C, 171F and 188 of IPC, pending on the file of Principal Senior Civil Judge and JMFC, Hunsur, Mysuru District.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>The case of the prosecution is that on the complaint of the election observer, filed on 29.11.2019, the respondent-police registered the case against the petitioners-accused Nos.1 and 2. It is alleged in the complaint that accused No.2 obtained permission for meeting as per the guidelines issued by Election Commission of India, but he has violated the code of conduct of the election on 11.11.2019. It is further alleged that accused No.1 while addressing the gathering, spoke that the Bhovi Community people to take active part in electing Congress candidate Sri H.P. Manjunath and thereby, he has violated the code of conduct and addressed the gather in violation of the offence punishable under Section 123(3) of RP Act, 1951. After registering FIR, the<span style=\"white-space:pre\">	</span>police filed charge sheet, which is under challenge.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>The short question that arises in this petition is, whether the alleged offence registered in the FIR by the police for the offences punishable under Sections 123(3) and 125 of RP Act, is non cognizable offence is in accordance with law? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>Admittedly, the offences punishable under Section 171c, 171F, 123(3) of RP Act are non cognizable offences. Hence, the police shall obtain permission of the Magistrate under Section 155 of Cr.P.C. prior to registering FIR.   Even other wise, the police have filed charge sheet for the offences under Sections 171C, 171F and 188 of IPC. Sections 171C and 171F of IPC are the non cognizable offences and for filing charge sheet for the offence under Section 188 of IPC, the sanction under Section 195 of Cr.P.C. is required. The police have not obtained any sanction while filing charge sheet and they have not obtained permission for registering FIR in a non cognizable offence which is registered under Section 155(2) of Cr.P.C. The learned counsel for the petitioners has contended that the ingredient of the offence as per Section 123 of RP Act is not made and therefore, the offence in FIR against accused No.1 does not constitute any offence for influencing any sect of people. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>Therefore, in my view, the very registering the FIR for the non cognizable offences, without taking permission under Section 155 of Cr.P.C. from the Magistrate, and filing charge sheet against the petitioners for offence punishable under Section 188 of IPC, without obtaining sanction, is not sustainable under the law. Thereby conducting proceedings against the accused is abuse of process of law. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>Accordingly, the criminal petition is allowed. </b><br></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3ae05199e9adca6e97bc37ea6f37e2ea.JPG', 'eb19e32cf719a3d377b2da31e1ee4cb0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-21', 1, '', '', '2023-04-20 15:17:42', '2023-04-21 06:02:24'),
(2934, 'JovsgCgK3bGQnz5i0jOqFo4xM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cause of action in a partition suit is a recurring action. Dismissal of earlier suit for non-prosecution will not be a bar for filing a second suit for partition. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>G.C. Sudha Vs B.M. Parvathamma.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R.F.A 972 of 2007 decided on 6 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Lakshmi instituted a suit in O.S.No.42/2007 seeking for a declaration that the suit properties bearing Sy.No.6/2 measuring 3 acres 12 guntas and Sy.No.6/3 measuring 28 guntas were the joint family properties of herself and her mother G.C.Sudha. She sought for a declaration that the decree passed in O.S.No.29/2001 on 07.02.2001 was not binding on her share and also sought for partition and separate possession of her half share in the suit properties.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 3.<span style=\"white-space: pre;\">	</span>It was the case of Lakshmi that she and her mother Sudha were the members of a Hindu undivided joint family and were in joint possession of the suit properties. She stated that her grandfather – Seetharamappa was the kartha of the erstwhile joint family and he had got all the joint family properties divided between himself and Thimmeshappa i.e., the father of Lakshmi, a long time ago. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>It was stated that in the said partition, the suit properties had fallen to the share of Thimmeshappa. It was stated that Thimmeshappa died about 19 years ago, while Lakshmi was in the womb of her mother – Sudha and on the death of her father, she and her mother had succeeded to the suit properties as his legal heirs and were also enjoying the same. It was stated that the on the death of Thimmeshappa, the khatha was also changed in the name of Sudha.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>32.<span style=\"white-space: pre;\">	</span>On an assessment of the pleadings and evidence adduced before it, the Trial Court took the view that Lakshmi had failed to prove that the suit properties were the joint and ancestral properties of Sudha and Lakshmi. It also held that Lakshmi had failed to prove that the decree of specific performance obtained in O.S.No.29/2001 was collusive and was not binding on her share. The Trial Court accordingly proceeded to dismiss the suit. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>33.<span style=\"white-space: pre;\">	</span>Lakshmi, being aggrieved by the same, preferred R.A.No.2/2012. The Appellate Court, on re-appreciation of the evidence, concurred with the findings of the Trial Court and dismissed the appeal. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">34.<span style=\"white-space: pre;\">	</span>Being aggrieved by these concurrent judgments, Lakshmi is in second appeal and this second appeal was admitted to consider the following substantial question of law:</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“Whether the plaintiff is debarred from claiming partition in the ancestral property of her father just because she appeared as witness for her mother in a suit for specific performance filed by defendant No.2 against her mother and thereby collusion between the plaintiff and defendant No.1 can be attributed to?”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>35.<span style=\"white-space:pre\">	</span>Since the issues raised in the first appeal and the second appeal were interlinked and were also interdependent on each other, both the appeals were ordered to be clubbed and considered together. Accordingly, both the appeals have been heard together<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>43.<span style=\"white-space:pre\">	</span>From the facts narrated above, the case of Lakshmi was that her mother Sudha was alleged to have executed an Agreement of Sale conveying the entire suit properties to Parvathamma and it is her contention that her mother had no right to deal with her half share in the suit properties and the Trial Court ought to have decreed the suit filed by her for partition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>45.<span style=\"white-space:pre\">	</span>It is not in dispute that Parvathamma contended that the suit properties belonged to Sudha, while, Sudha, on the other hand, contended that the suit properties were allotted to her husband Thimmeshappa in a partition and on his death, Sudha and her daughter Lakshmi had inherited the suit properties. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>46.<span style=\"white-space:pre\">	</span>The fact that the suit properties were allotted to Thimmeshappa in a partition and on his death, the properties were succeeded to by Sudha and Lakshmi in equal proportion is not in serious dispute. Since the said fact is not in serious dispute, the claim of the daughter Lakshmi seeking for half share could not have really been denied by the Trial Court and could not have also been affirmed by the Appellate Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>47.<span style=\"white-space:pre\">	</span>The Trial Court has taken the view that the suit properties had not been proved to be the joint properties of Sudha and Lakshmi and in order to come to this conclusion, the Trial Court has basically relied upon the decree passed in the suit in O.S.No.29/2001 filed by Parvathamma for specific performance. The Trial Court has also taken the view that the grandfather of Lakshmi had filed a suit for partition on her behalf and it was also admitted that the suit had been dismissed for non- prosecution, but she had not produced the copy of the order dismissing the said suit for non-prosecution and hence, it was clear that the suit filed for partition for the second time was not maintainable.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>51.<span style=\"white-space:pre\">	</span>It was, therefore, clear that it was the admitted case of both the parties that the suit filed by the grandfather of Lakshmi on her behalf for partition had been dismissed for non-prosecution. In the light of this admission by Parvathamma that the suit filed by Lakshmi had been dismissed for non-prosecution, the Trial Court and the Appellate Court have committed a grave error in coming to the conclusion that Lakshmi had not proved that her suit had been dismissed for non-prosecution. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">52.<span style=\"white-space:pre\">	</span>In this second appeal, Lakshmi has filed an application for production of additional evidence and along with the said application, she has produced the copy of the order sheet which confirms the fact that the suit filed by her grandfather was dismissed for non- prosecution. It is also noticed that in the said suit Parvathamma was in fact the second defendant and therefore, her admission in the written statement that the suit was dismissed for non-prosecution would have enormous significance.<br></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>54.<span style=\"white-space: pre;\">	</span>An argument is advanced that since the suit for partition filed by Lakshmi was dismissed for non- prosecution, by reason of Order IX Rule 9 of CPC, Lakshmi should be precluded from filing a second suit. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>55.<span style=\"white-space: pre;\">	</span>Order IX Rule 9 of CPC, no doubt, precludes a plaintiff from bringing a fresh suit in the event the suit is dismissed for non-appearance of the plaintiff when the suit is called for hearing and the defendant is present. It is, however, to be stated here that the bar for filing a fresh suit would be in respect of a subsequent suit which is filed in respect of the same cause of action.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>61.<span style=\"white-space:pre\">	</span>Section 8 of the 1956 Act mandates that a natural guardian of the properties of a Hindu Minor would have to seek the permission of the Court before he disposes of any of his immoveable property. There is no exception carved out for this mandate. Whenever the property of a Hindu Minor is required to be disposed of by his natural guardian, the obtaining of permission of the Court is a must. This is obviously because, a minor cannot take a decision regarding the disposal of his property and the law intends that the Court be satisfied with the proposed alienation made by the natural guardian is in the interest of the minor. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>62.<span style=\"white-space:pre\">	</span>The Apex Court, no doubt, in the said decision has stated that there would be no need for the natural guardian to seek for permission in respect of a minor’s undivided interest in the joint family, as provided under Sections 6 to 12 of the 1956 Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>63.<span style=\"white-space:pre\">	</span>In this case, the property in question was a property belonging to the father of Lakshmi and on his death, she had succeeded to the said property in equal measure along with her mother. Thus, there was no question of this property that she had succeeded to as the daughter, being a joint family property.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>64.<span style=\"white-space:pre\">	</span>The Apex Court in the case of SAROJ Vs SUNDER SINGH AND OTHERS - (2013) 15 SCC 727 has stated as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“Where the father dies leaving behind only minor daughters and their mother as natural guardian, the share of the daughters becomes definite; the question of family partition retaining the character of joint Hindu family property does not exist. In the present case, after the death of the father, the property has been shared amongst each member of the family and recorded in the mutation register having 1/4th share each. In such circumstances, the provision of sub- section (3) of Section 8 shall be attracted as the mother sold the property without previous permission of the court. Hence, both the sale deeds executed by the second respondent in favour of the first respondent shall become voidable at the instance of the minor i.e., the appellant and the pro forma Respondents 4 and 5.”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 65.<span style=\"white-space:pre\">	</span>In the light of this declaration of law, it is clear that whenever a  father  dies leaving  behind  daughters  and their mother as natural guardian, the share of the daughters being definite, the question of the property regaining the character of a joint Hindu undivided family does not exist.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>66.<span style=\"white-space:pre\">	</span>In this case, Lakshmi had basically succeeded to the property of her father to the extent of half of the portion and this property was essentially her absolute property. In the light of the ratio laid down by the Apex Court in Saroj’s case cited supra, it is clear that the property to which Lakshmi had succeeded can never be considered as a joint Hindu undivided family property. The decision of Narayan Bal’s relied upon by the learned counsel Sri.B.M.Siddappa appearing for Parvathamma would apply only in respect of the undivided interest in the joint family property and it cannot be made applicable to the minor’s absolute property.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>67.<span style=\"white-space:pre\">	</span>In this view of the matter, in the light of the admitted  fact  that  no  permission  was  obtained  under Section 8(5) of the 1956 Act by Sudha before she entered into an Agreement of Sale with Parvathamma, the alienation would be illegal and definitely not binding on Lakshmi’s share. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>68.<span style=\"white-space:pre\">	</span>As far as the substantial question of law framed by this Court is concerned, it is, no doubt, true that Lakshmi had appeared as a witness for her mother in the suit filed for specific performance. However, merely because she deposed on behalf of her mother in the suit for specific performance, it cannot be held that she had colluded with her mother. In fact, even in her deposition in the suit for specific performance, she categorically stated that she was also the owner of the suit properties and her mother was not the absolute owner of the suit properties. She also stated that she was unaware as to what litigation had been initiated by Parvathamma against her mother. A close reading of her deposition would indicate that she basically stated that her grand- father had filed a suit on her behalf and the said suit had been dismissed after her grand-father died.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>69.<span style=\"white-space:pre\">	</span>She, in fact, categorically stated that her mother was not the only owner of the suit properties and she also possessed a right in respect of the said properties. She also stated that her mother had entered into an agreement without her consent or without her authority and therefore, the suit for specific performance was required to be dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 70.<span style=\"white-space:pre\">	</span>This kind of deposition in which Lakshmi asserted that she also had an equal right in the suit properties, cannot be construed as an act of collusion with her mother. Lakshmi basically contended that she also possessed an equal right in the suit properties and therefore, the suit for specific performance ought not to be decreed. In the light of the evidence adduced by Lakshmi, it was clear that she was not debarred from claiming partition merely because she appeared as a witness for Sudha in the suit for specific performance filed by Parvathamma. The substantial question of law is accordingly answered in favour of Lakshmi.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>72.<span style=\"white-space:pre\">	</span>As already noticed above, the Agreement of Sale was entered into when Lakshmi was a minor and no permission had been obtained as contemplated under Section 8 of the 1956 Act. As a consequence, the suit filed by Lakshmi will have to be decreed and she would be entitled to half share in the suit properties.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>73.<span style=\"white-space:pre\">	</span>The impugned judgment and decree passed in the suit for partition against Lakshmi are, therefore, set aside.<br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>74.<span style=\"white-space:pre\">	</span>As far as the suit for specific performance is concerned, Parvathamma filed the suit contending that Sudha had entered into an agreement to sell the suit properties and had received a sum of Rs.37,500/- as on the date of the execution of the agreement i.e., 25.02.1995. She also stated that the agreement provided for payment of balance amount of Rs.1,20,000/- in two installments. The first installment was to be paid on or before 15.04.1995 and the second installment was required to be paid on 31.12.1995.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>85.<span style=\"white-space:pre\">	</span>In this case, it was Parvathamma who pleaded that she had offered to make the deposit of Rs.40,000/- but the same had been refused by Sudha and she thereafter made a deposit of Rs.1,20,000/- in the State bank of Mysore. It was, therefore, incumbent on Parvathamma to establish this fact and since she has failed to prove this fact, it will have to be held that she has not proved that she was ready and willing to discharge her part of the contract. In this light of this factual situation, the decision relied upon in Beemaneni’s case would be of no avail.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>86.<span style=\"white-space:pre\">	</span>The impugned judgment and decree of the Trial Court granting specific performance cannot, therefore, be sustained and it is accordingly set aside</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>87.<span style=\"white-space:pre\">	</span>It is also pertinent to state here that though the agreement provides for forfeiture of the amount of Rs.37,500/- if the balance sale consideration was not paid, having regard to the totality of the circumstances and to do complete justice, it would be appropriate to direct Sudha to return the sum of Rs.37,500/- along with interest at 10% per annum from the date of filing of the suit till its realisation. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>88.<span style=\"white-space:pre\">	</span>This is fundamentally because Sudha admitted that she had received a sum of Rs.37,500/- and even according to Sudha, she had borrowed this money as she was in a financial difficulty. If, Parvathamma had helped her in the times of her difficulty, it would be not only just but also equitable to direct Sudha to repay the said money with interest as aforesaid. 89.<span style=\"white-space:pre\">	</span>Consequently, the impugned decree passed in O.S.No.29/2001 filed by Parvathamma granting specific performance is set aside and in its place, a direction is issued to the defendant—Sudha to refund the sum of Rs.37,500/- with interest at 10% per annum from 26.04.1996 till the date of payment to the plaintiff- Parvathamma.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 90.<span style=\"white-space:pre\">	</span>As a further consequence, the suit filed by Lakshmi seeking for partition in O.S.No.42/2007 is decreed and she is held entitled for half a share in the suit properties.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> The appeals are accordingly allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2874b7c0852ae5bc50e3af7c2ab92887.JPG', 'e1356b1d9394df62278f14773d3016b4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-21', 1, '', '', '2023-04-20 15:53:00', '2023-04-21 09:52:13'),
(2937, 'zGFhCEdPOWZmJ6G8LwbRkpxvN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Dowry death. “Soon before her death” wife was subjected to cruelty and harassment “in connection with the demand for dowry” must be established to attract the provision of Section 304-B, IPC. Supreme Court reiterates. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Charan Singh Vs The State of Uttarakhand.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 447 of 2012 decided on 20 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Abhay S. Oka and Justice Rajesh Bindal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The appellant, who was husband of the deceased,\r\nhas filed the present appeal challenging his conviction and\r\nsentence under sections 304B, 498A and 201 of Indian Penal\r\nCode, 1860 (for short, ‘IPC’). The Trial Court had sentenced the\r\nappellant to undergo rigorous imprisonment for 10 years under\r\nSection 304B, 2 years under Section 498A and 2 years under\r\nSection 201 IPC. However, the High Court of Uttarakhand at\r\nNainital had reduced the sentence of the appellant under\r\nSection 304B IPC from ten years to seven years.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The appellant and deceased Chhilo Kaur got married\r\nin the year 1993. The deceased was residing in her\r\nmatrimonial home. On 24.6.1995 at 6.15 p.m. father of the\r\ndeceased, Pratap Singh (PW-1) filed complaint with the P.S.\r\nJaspur stating that his daughter Chhilo Kaur was married to the\r\nappellant about two years ago. In the marriage, he had given\r\nsufficient dowry as per his status. Two months after the\r\nmarriage, his daughter came to her parental home and told the\r\ncomplainant (PW-1) that her in-laws are asking her to bring a\r\nmotorcycle as the same was not given in dowry. The\r\ncomplainant pacified his daughter stating that at present he is\r\nnot capable of giving motorcycle, however, whenever he is in a\r\nposition to do so, he will certainly give and sent his daughter\r\nback to her matrimonial home. Thereafter, whenever his\r\ndaughter came to the parental home, she used to talk about\r\nthe demand of motorcycle and subsequently after about one\r\nyear of marriage, the demand for land was also made. Every\r\ntime he used to pacify his daughter and sent her back. On the\r\nprevious day i.e. on 23.6.1995, one Jagir Singh of village\r\nBhogpur Dam, where his daughter lived after marriage with the\r\nappellant came to complainant and told him that his daughter, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Chhilo Kaur has been murdered by her in-laws. On getting the\r\ninformation, the complainant along with his wife came to\r\nvillage Bhogpur Dam on 24.6.1995 and were shocked to know\r\nthat on 22.6.1995 in the morning at about 8.00 a.m., his\r\ndaughter was beaten up and strangulated to death by her\r\nhusband Charan Singh, (the appellant herein), brother-in-law,\r\nGurmeet Singh (accused no.2) and mother-in-law Santo Kaur\r\n(accused no.3). They had cremated the dead body without\r\neven informing the complainant. She was killed on account of\r\nnon-fulfilment of demand of motorbike and land in dowry. The\r\nmatter was investigated and chargesheet was filed against\r\nCharan Singh, Gurmeet Singh and Santo Kaur.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The marriage of the appellant with the deceased was\r\nsolemnised in the year 1993. She died on 22.6.1995. FIR was\r\nregistered on the complaint of the father of the deceased on\r\n24.6.1995 against Charan Singh, the appellant herein, brotherin-law, Gurmeet Singh and mother-in-law Santo Kaur. However,\r\nin appeal filed by the convicts before the High Court, brother-inlaw, Gurmeet Singh and mother-in-law, Santo Kaur were\r\nacquitted whereas the conviction of the appellant was upheld.\r\nThe sentence awarded to the appellant under Section 304B IPC\r\nwas reduced from ten years rigorous imprisonment to seven\r\nyears rigorous imprisonment. The sentence of two years\r\nrigorous imprisonment each awarded under Section 498A and\r\nSection 201 IPC was affirmed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. The interpretation of Sections 304B and 498A IPC\r\ncame up for consideration in Baijnath’s case (supra).</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>“25. Whereas in the offence of dowry death\r\ndefined by Section 304-B of the Code, the ingredients\r\nthereof are:\r\n(i) death of the woman concerned is by any\r\nburns or bodily injury or by any cause other than\r\nin normal circumstances, and\r\n(ii) is within seven years of her marriage, and\r\n(iii) that soon before her death, she was\r\nsubjected to cruelty or harassment by her\r\nhusband or any relative of the husband for, or in\r\nconnection with, any demand for dowry.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The offence under Section 498-A of the\r\nCode is attracted qua the husband or his relative if\r\nshe is subjected to cruelty. The Explanation to this\r\nSection exposits “cruelty” as:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>\r\n(i) any wilful conduct which is of such a nature\r\nas is likely to drive the woman to commit suicide\r\nor to cause grave injury or danger to life, limb or\r\nhealth (whether mental or physical), or</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n(ii) harassment of the woman, where such\r\nharassment is with a view to coercing her or any\r\nperson related to her to meet any unlawful\r\ndemand for any property or valuable security or\r\nis on account of failure by her or any person\r\nrelated to her to meet such demand.</i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. As the aforesaid case was also pertaining to dowry\r\ndeath, presumption under Section 113B of the Indian Evidence <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Act was also discussed in detail in paras 29 to 31 of the\r\naforesaid judgment. The same are extracted below:-\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>“29. Noticeably this presumption as well is\r\nfounded on the proof of cruelty or harassment of the\r\nwoman dead for or in connection with any demand\r\nfor dowry by the person charged with the offence.\r\nThe presumption as to dowry death thus would get\r\nactivated only upon the proof of the fact that the\r\ndeceased lady had been subjected to cruelty or\r\nharassment for or in connection with any demand for\r\ndowry by the accused and that too in the reasonable\r\ncontiguity of death. Such a proof is thus the\r\nlegislatively mandated prerequisite to invoke the\r\notherwise statutorily ordained presumption of\r\ncommission of the offence of dowry death by the\r\nperson charged therewith.\r\n</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>30. A conjoint reading of these three\r\nprovisions, thus predicate the burden of the\r\nprosecution to unassailably substantiate the\r\ningredients of the two offences by direct and\r\nconvincing evidence so as to avail the presumption\r\nengrafted in Section 113-B of the Act against the\r\naccused. Proof of cruelty or harassment by the\r\nhusband or his relative or the person charged is thus\r\nthe sine qua non to inspirit the statutory\r\npresumption, to draw the person charged within the\r\ncoils thereof. If the prosecution fails to demonstrate\r\nby cogent, coherent and persuasive evidence to\r\nprove such fact, the person accused of either of the\r\nabove referred offences cannot be held guilty by\r\ntaking refuge only of the presumption to cover up the\r\nshortfall in proof.\r\n</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">31. The legislative primature of relieving the\r\nprosecution of the rigour of the proof of the often\r\npractically inaccessible recesses of life within the\r\nguarded confines of a matrimonial home and of\r\nreplenishing the consequential void, by according a\r\npresumption against the person charged, cannot be </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">overeased to gloss over and condone its failure to\r\nprove credibly, the basic facts enumerated in the\r\nsections involved, lest justice is the casualty”.</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. In the aforesaid evidence led by the prosecution,\r\nnone of the witnesses stated about the cruelty or harassment\r\nto the deceased by the appellant or any of his family members\r\non account of demand of dowry soon before the death or\r\notherwise. Rather harassment has not been narrated by\r\nanyone. It is only certain oral averments regarding demand of\r\nmotorcycle and land which is also much prior to the incident. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The aforesaid evidence led by the prosecution does not fulfil\r\nthe pre-requisites to invoke presumption under Section 304B\r\nIPC or Section 113B of the Indian Evidence Act. Even the\r\ningredients of Section 498A IPC are not made out for the same\r\nreason as there is no evidence of cruelty and harassment to the\r\ndeceased soon before her death.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. On a collective appreciation of the evidence led by\r\nthe prosecution, we are of the considered view that the prerequisites to raise presumption under Section 304B IPC and\r\nSection 113B of the Indian Evidence Act having not been\r\nfulfilled, the conviction of the appellant cannot be justified.\r\nMere death of the deceased being unnatural in the matrimonial <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">home within seven years of marriage will not be sufficient to\r\nconvict the accused under Section 304B and 498A IPC. The\r\ncause of death as such is not known.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>24. For the reasons mentioned above, in our opinion, the\r\nconviction and sentence of the appellant under Section 304B,\r\n498A and 201 IPC cannot be legally sustained. The appeal is\r\naccordingly allowed. The impugned judgment of the High Court\r\nis set aside. The bail bonds stand cancelled.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2bc51a970cbcd41524bac35b17e2c947.jpeg', 'bec886d8cea0ec3af945e1beb3a8856e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-25', 1, '', '', '2023-04-21 13:25:03', '2023-04-25 07:39:02');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2938, 'J4m08ex04SUdZhgPtNWDb6kGT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Writ Petition seeking revision of voters list cannot be maintained except by the persons aggrieved.” Karnataka High Court, while dismissing the petition filed by MLA seeking rectification of voters list of his constituency. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rizwan Arshad and others Vs Election Commission of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Appeal 405 of 2023 decided on 18 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chief Justice Prasanna B. Varale and Justice M.G.S. Kamal</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>It is the case of the appellants/writ petitioners that:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (a)<span style=\"white-space: pre;\">	</span>Respondent No.3 –Electoral Registration Officer had conducted periodical revision of electoral roll for Shivajinagar Constituency, which is a continuous process and the same was done upto 04.10.2022. That upon the representation by certain local residents made on 11.10.2022 to the Election Commission of India alleging inclusion of illegal and unauthorised voters in the Shivajinagar Constituency and for necessary action thereto, names of 231 people came to be deleted in the final voters list dated 15.01.2023. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b)<span style=\"white-space: pre;\">	</span>That a list of 9195 `displaced\' as well as 1847 `deceased\' electors was prepared<span style=\"white-space: pre;\">	</span>without application of mind as per the information given by Booth Level Officers who purportedly acted at the instance of third parties. That based on certain media reports and complaints with regard to collection of voters data the Election Commission of India appointed Regional Commissioner to conduct enquiry and to submit a report. Based on the report of the Regional Commissioner, Election Commission of India had issued direction to the Chief Secretary and CEO, Karnataka ensuring adherence to directions for the purpose of `deletion\' and `addition\' of names in the electoral rolls after 01.01.2022 in three constituencies including Shivajinagar. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(c)<span style=\"white-space: pre;\">	</span>That the Election Commission of India published integrated draft electoral rolls on 09.11.2022 in respect of Shivajinagar constituency. That certain representations were given on 11.10.2022, 19.10.2022, 30.11.2022, 19.12.2022 alleging existence of names of 26000 illegal voters in the electoral rolls. That the special drives were conducted on the basis of directions issued by Election Commission of India. The Election Commission fixed 24.12.2022 as last date for filing of objections and 06.01.2023 to be the date for disposal of such claims and objections. That the names of petitioners were also wrongly shown in the list of `shifted persons\' and were issued with notices albeit to wrong addresses. That upon filing of objections by the petitioners their names were retained in the list. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(d)<span style=\"white-space: pre;\">	</span>That writ petitions in W.P.No.3592/2023 and W.P.No.2632/2023 were filed in respect of the issue pertaining to electoral rolls concerning Shanthinagar Constituency and Shivajinagar Constituency. That the petitioners had sought to implead themselves in the said writ petition. That by a common order dated 14.03.2023 the said writ petitions were disposed directing the Commission to undertake the exercise which they had already undertaken in respect of 8281 voters identified as `shifted\' and 1847 voters identified as `dead\' and to take the said process to the logical conclusion in consonance with Act 1950, Rules 1960, Guidelines and Circulars particularly with reference to Rule 21A of the Rules, 1960 and to conclude said exercise on or before 26.03.2023. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(e)<span style=\"white-space: pre;\">	</span>That in contravention to the directions contained in the aforesaid order dated 14.03.2023 passed in the above writ petitions, respondents had issued paper publication dated 22.03.2023 English newspaper “The New Indian Express” calling for objections for deletion of names of 8281 electors in the final voters list dated 15.01.2023.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> (f)<span style=\"white-space: pre;\">	</span>That the petitioner No.1 on going through the said list in the newspaper found the names of petitioners 2 to 20 and accordingly approached this Court by filing the present writ petition challenging the action of the respondents in issuing paper publication for deletion of names and seeking reliefs as noted above.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>On consideration of the rival submissions of the learned Senior counsel for the parties, points that arise for our consideration are: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>“(i) Whether the appellant/petitioners have `locus standi´ to invoke jurisdiction of this Court  under Article 226 of the Constitution of India seeking redressal of the grievance of the electors with regard to deletion of their names from the electoral rolls as found in the notice published in “The New Indian Express” newspaper dated 22.03.2023? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">(ii)<span style=\"white-space: pre;\">	</span>Whether the appellant/petitioners have otherwise made out grounds for interference with the impugned order dated 05.04.2023?”</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Re: Point No.1:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 9.<span style=\"white-space: pre;\">	</span>Entire case of the appellants/petitioners revolves around the procedure adopted by the respondents in revising the electoral roll and eventual deletion of names of the electors from the electoral rolls identified as `shifted\' and `dead\'. It is well settled law that in the context of invoking jurisdiction of the Court under Article 226 of the Constitution only persons aggrieved by violation or infringement of their/his constitutional rights can file a writ petition in their/his personal/private capacity.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>In the instant case on a perusal of contents of writ petition we are unable to see any specific pleading or stand taken by the appellants/petitioners for and on behalf of persons whose names are sought to be deleted from the electoral roll by the respondents after purported enquiry and issuance of notice. The appellants/petitioners have not pleaded that those persons whose names are sought to be deleted are the class of persons who are unable to seek redressal of their grievance. Least, the petition is not one in the public interest or in the representative capacity. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>As rightly contended by the learned Senior Counsel for the respondent-commission the individual grievance of the petitioners admittedly having been addressed, in other words their names having been retained in the electoral rolls on consideration of their objections/representation, they may have no cause of action to sustain the writ petition. There is no pleading in the writ petition justifying maintainability of the writ petition for and on behalf of the persons who are not before this Court. Learned Senior counsel for the appellant/petitioners on a query is unable to respond in justification of appellants/petitioners maintaining the writ petition except stating that the first appellant/first petitioner is a sitting MLA, and that deletion of names from the electoral roll would adversely affect his prospects in the ensuing election. That in our considered opinion is hardly an answer for maintaining the above writ petition of this nature, inasmuch  as the same fall shy of test of `person aggrieved\' as enunciated by the Apex Court in the case of J.M.Desai supra and of the clarification given at paragraph 17 of the Judgment in the case of S.P.Gupta supra. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">16.<span style=\"white-space: pre;\">	</span>In the light of the aforesaid settled legal principles on the issue of locus standi and in the light of the factual aspects of the matter, we are of the considered opinion that the appellants/petitioners have no locus standi to question the action of the respondent authorities in their exercise of revision of electoral rolls on behalf of unknown/unnamed persons in the writ petition. The point No.1 is answered accordingly.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space: pre;\">	</span>The main thrust of the submissions of the learned Senior counsel for the appellants is that the process of issuance of notices, causing publication in the newspaper, listing out the names of the voters for deletion from the final list is not in accordance with Act, 1950 and Rules 1960, guidelines and instructions/orders. Several instances referring to the documents produced sought to be shown to buttress the contentions that notices have not been effectively served as per the procedure and instructions and that no mahazar has been drawn in the manner known to law. It is also contended that notices that were issued do not provide even minimum period to respond or to show cause.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 18.<span style=\"white-space: pre;\">	</span>In view of our answer to the point No.1 as above, we are of the considered opinion that there is no requirement of dwelling into the aforesaid contentious issues raised by the appellants/petitioners on the process adopted by the respondent authorities in revising the electoral rolls, inasmuch the grievance of the appellants/petitioners has been addressed and their names have been retained in the electoral roll as seen in the communication dated 10.04.2023 produced as document No.2 by the respondent authorities by memo dated 11.04.2023. As such, we do not see any grounds being made out by the appellants/petitioners warranting interference at this stage. Point No.2 is answered accordingly. Thus, appeal being devoid of any merit, deserves to be dismissed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Accordingly, writ appeal is dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c8b9e02c192a894ada4e25ce3cdf4264.jpeg', '7f81ae90375d0649263faf1fed067ffe.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-22', 1, '', '', '2023-04-21 13:56:26', '2023-04-22 10:25:24'),
(2949, 'yzVpyl6PXJAhqgYU4rV78bi5A', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil Procedure Code. Order granting leave under section 92 in respect of public trust is a judicial order and can be questioned by revision petition under section 115. Karnataka High Court.   ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Srimad Ujjaini Saddharma and others Vs S.S. Patil and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 400 of 2021 decided on 13 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The two revision petitions under section 115 of Code of Civil Procedure (‘CPC’ for short) and the writ petition under Article 227 of the Constitution of India challenge the correctness of the order dated 21.10.2021 passed by the Principal District Judge, Chitradurga, allowing Misc.Case.No.169/2021, filed under section 92 of CPC.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>Now the question is whether the order under section 92 CPC is an administrative order or judicial order. Sri. Anant Mandgi has placed reliance on the judgment of the Supreme Court in B.S.Adityan and of High Court of Madras in G.R. Govindarajulu. Learned Single Judge of the High Court of Madras followed the Bench decision in the case of R.Kannan Adityan and four others Vs. B.S. Adityan and six others [1996(2) L W 364), to hold that an order passed under section 92 CPC is an administrative order. It appears that this judgment of the Division Bench was appealed to the Supreme Court where the argument was put forth on the same lines. If the judgment of the Hon’ble Supreme Court is read, it may be stated with great respect that the Supreme Court has not laid down any ratio that an order on an application under section 92 is administrative in nature. In para 4 of the judgment, different views expressed by some of the High Courts have been noted. Therefore the case of B.S. Adityan does not help Sri. Anant Mandgi.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>The power that the Advocate General used to exercise before amendment was brought to section 92 in the year 1976 was no doubt purely administrative, but its further view that the power was delegated to court by virtue of amendment is difficult to be accepted. The amendment conferred power on the court to take a decision on an application under section 92 CPC.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>Then section 104 CPC provides for an appeal if leave under section 92 is refused. It is the judicial order which can be questioned in an appeal made under section 104 CPC. If leave is granted, it cannot be questioned in appeal, nevertheless, it may be stated with reference to section 104 CPC and the judgment of the Supreme Court extracted above that while deciding an application, the court is bound to examine the averments made in the plaint with the objective of ascertaining whether those averments fall within the ambit of section 92 CPC. Either to grant leave or not, the court has to make same exercise and therefore in my considered view an order granting leave under section 92 CPC is a judicial order.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>The legal position that a revision is maintainable under section 115 CPC is made clear by the Hon’ble Supreme Court. Further, if revision petition is allowed, the applicant under section 92 CPC cannot proceed further, and thus the proceeding will come to an end. This analogy fits into scope of section 115 CPC. In this view, a party aggrieved by grant of leave under section 92 can question it under section 115 CPC.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>Then the next question is whether the court below has erred in granting leave. It was argued by Sri. Ashok Haranahalli and Sri. Udaya Holla that the contents of plaint do not disclose a dispute relating to charitable trust. The first relief claimed in the plaint is to declare the trust deed dated 27.7.1990 null and void. This being the main relief, section 92 CPC is not applicable; and such kind of a relief can be claimed in a regular suit only. They also argued that all the educational institutions mentioned in the plaint schedule belong to fifth defendant society; they are not trust properties and therefore it is clear that suit is not brought in respect of properties of trust. They also argued that as can be made out from the plaint, one Dr. S. Siddaiah was nominated as ‘Uttaradhikari’ of the first defendant mutt, but he was not anointed. His personal grievance does not permit a suit to be brought under section 92 as has been held by the Supreme Court in the case of Swami Paramatmanand Saraswati And Others Vs. Ramji Tripathi and Others [(1974) 2 SCC 695]. The plaint averments are so clear that none of the reliefs claimed in the plaint falls within the ambit of section 92 CPC, and in this view the impugned order needs to be set aside. Sri. Shivaprasad Shantanagoudar submitted that the society was formed in the year 1923, i.e., much before trust was created. The society has been managing all the educational institutions, since the society is an independent entity, the court below should not have granted leave.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>It is a settled principle that decision on application under section 92 CPC has to be taken by looking into averments found in the plaint. Even if the defendants want to oppose, they must do so with reference to plaint only, and they cannot introduce their defence on the application.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>Now if the impugned order is seen, it cannot be said that the court below has passed a perfunctory order. It has examined the plaint in the light of settled legal principles. Though the plaint is very narrative and looks like a written argument, its contents do disclose that the defendant, which is a mutt, is headed by the third defendant. The first defendant mutt is meant for the people belonging to a particular religious order, and it is a constructive public trust for charitable and religious purposes. If the first defendant itself is a trust, a doubt in the conduct of third defendant in creating an express trust by means of a trust deed arises. The trust deed, which is produced along with plaint, shows third defendant creating a trust in respect of properties which do not appear to be belonging to him personally. As a pontiff or Mathadhipati of the first defendant trust he holds all the properties of the mutt in the capacity of trustee only, and if he, in that capacity, created another trust, it gives scope for looking at his conduct with askance. If he would execute a sale deed in favour of a third party, again the allegations made against him would get strengthened. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>It is true that the mention of the name of Dr. S. Siddaiah in the plaint creates an impression that he might be behind institution of the suit. But mention of his name is just a surplusage, if he is really involved in the suit to vindicate his personal right, it can be thrashed out only after full fledged trial. At this stage, looking into the actual averments made in the plaint, an inference can be drawn that it is with a view to protecting the mutt and its properties, and to frame a scheme for its management, suit has been brought under section 92 CPC. Merely for the reason that declaration as to nullity of trust deed created by third defendant is sought, it cannot be said that section 92 CPC is not applicable, for the other reliefs claimed in the plaint fall within the ambit of that section. The cause of action for the suit has to be deciphered by reading the plaint as a whole, not with reference to a particular paragraph in the plaint. Since I find the plaint being in conformity with section 92 CPC, the trial court has rightly granted leave. For these reasons, I do not find good ground to interfere with the impugned order. The revision petitions and the writ petition are dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a65eae9cc6c6d406229e383c30e83474.jpeg', '092194d884b332dabd0a1e4dce99f18e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-29', 1, '', '', '2023-04-29 10:48:40', '2023-04-29 06:25:50');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2940, 'wU4BZGazuANvvIEy3nX2gAaEl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Industrial Disputes Act. An order refusing permission under Section 33(2)(b) can be challenged by way of a Writ Petition in appropriate cases. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Management of R.V. Educational Institutions Vs S.J Kumar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 3963 of 2021 decided on 23 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The petitioner is a Trust managing several professional educational institutions. One such institution is the Dental College known as D.A.Pandu Memorial R.V.Dental College, which was established in the year 1992 having about 52 Teaching Staff and 62 Non-Teaching Staff, 285 Undergraduate students and 87 Post Graduate students at the relevant point of time. The Dental College also provided hostel facilities to the students in campus. The same having 47 rooms with a capacity of 105 for girl students and 19 rooms with a capacity of 42 for boy students. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The respondent-workman joined the services of the employer with effect from 01.03.2004 as a Group-D attender. A written joint complaint was received on 03.09.2015 from the girl students residing in the hostel against the workman. The employer issued a charge sheet cum show cause notice on 16.02.2016, towards which a reply was submitted by the workman on 24.02.2016. The employer, not satisfied with the reply, ordered a domestic enquiry and a third-party advocate was appointed as an Enquiry Officer. The enquiry was commenced on 15.03.2016 and concluded on 15.12.2016, spread over 18 sittings. After considering the complaint, defence statement and evidence on record, the Enquiry Officer submitted his report and findings on 20.02.2017, holding the charges against the workman having been proved in terms of the charge sheet dated 16.02.2016. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>The Disciplinary Authority issued a second show cause notice on 31.03.2017 which was replied to by the workman on 11.04.2017. The employer, not satisfied with the said reply, dismissed the workman by order dated 26.04.2017. An application under Section 33 (2) (b) of the Industrial Disputes Act, 1947 (for short, ‘I.D.Act’) was also filed. Since there was an earlier dispute referred to the Industrial Tribunal, the said application came to be numbered as application No.1/2017 in Reference No.51/2015 as regards which the workman filed his objections.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">5.<span style=\"white-space: pre;\">	</span>The Labour Court tried the preliminary issue as regards the fairness of the domestic enquiry and, vide its order dated 30.08.2018 came to a conclusion that the enquiry was not fair and proper and dismissed the application of the employer filed under Section 33 (2) (b) of I.D.Act.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>In terms whereof, the matter was remitted to the Labour Court by setting aside the order dated 30.08.2018 dismissing the application and directing the Labour Court to permit the parties to lead evidence on merits. Thereafter, evidence was led by the employer of 7 witnesses who were cross- examined. The workman also examined himself and was cross-examined. The Labour Court, vide its order dated 06.11.2019, dismissed the application under Section 33 (2) (b) of I.D.Act. In pursuance thereof, the workman wrote to the employer seeking reinstatement, full back wages, balance payment of subsisting allowance and all other consequential reliefs. It is in those circumstances that the employer is before this Court challenging the orders dated 30.08.2018 and 06.11.2019 passed by the Labour Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>The points that would arise for determination are:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 1.<span style=\"white-space:pre\">	</span>Whether an order refusing permission under Section 33(2)(b) of I.D.Act can be challenged by way of a Writ Petition? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space:pre\">	</span>Whether the exercise of powers under Section 33 (2)(b) of I.D.Act by the Labour Court while granting or refusing permission is to be based on prima facie consideration or does it require detailed examination: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>Whether the enquiry which has been conducted is fair and proper?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 4.<span style=\"white-space:pre\">	</span>Whether the evidence available on record can be said to have material inconsistencies? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>Whether the finding of the Labour Court suffers from any legal infirmity? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space:pre\">	</span>Whether this Court would have jurisdiction to interfere with the order passed rejecting an application under Section 33 (2) (b) of I.D.Act? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>Whether an application under Section 17B of the I.D.Act has to be considered prior to consideration of the matter on merits or could the said application be considered along with the merits at the time of final hearing and final order being passed? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>What order?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>14.<span style=\"white-space:pre\">	</span>Answer to Point No.1: Whether an order refusing permission under Section 33(2)(b) of I.D.Act can be challenged by way of a Writ Petition?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>14.3.<span style=\"white-space:pre\">	</span>The Hon’ble Apex Court in Surya Dev Rai’s case also caveated the powers of this Court in reappraising the evidence by stating that whenever an error which is manifest and apparent on the face of the proceedings or grave injustice of loss, failure of justice is occasioned, the power to issue a certiorari by exercising supervisory powers can be made. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>14.4.<span style=\"white-space:pre\">	</span>Similar was the situation in K.C.Rai’s case where the Hon’ble Apex Court held that when there is a miscarriage of justice or error of law on the face of record, this Court could interfere. Thus, the submission of Ms.Avni Chokshi, learned counsel for the workman is required to be rejected. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>14.5.<span style=\"white-space:pre\">	</span>Hence, I answer Point No.1 by holding that in appropriate cases, this Court can issue a certiorari quashing the order passed by the Labour Court if there is a breach of principles of natural justice, the order is vitiated by a manifest or apparent error of law, the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or at a disregard of a provision of law, grave injustice or gross failure of justice is occasioned thereby, the Labour Court has acted in excess of its jurisdiction by over stepping or crossing the limits of jurisdiction, has acted in flagrant disregard of law or the rules or procedure.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>15.<span style=\"white-space:pre\">	</span>Answer to Point No.2: Whether the exercise of powers under Section 33 (2)(b) of I.D.Act by the Labour Court while granting or refusing permission is to be based on prima facie consideration or does it require detailed examination? </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>15.1.<span style=\"white-space:pre\">	</span>By relying on M.Chandrashekaran’s case, the contention of Sri.K.R.Anand, learned counsel for the employer is that the grant of approval or not cannot be equated with jurisdiction under Section 10 and no detailed scrutiny is required to be made and only prima facie case is to be seen. For the same proposition, he relies upon the decision in Lalla Ram’s case and submitted that where the employer has bonafide come to the conclusion that the employee was guilty and there was no unfair labour practice or victimization, the Labour Court ought to have granted permission and ordered for dismissal. He therefore submits that what is required is only for the employer to have come to a bonafide conclusion that the employee was guilty requiring his dismissal. He also relies on the decision of John D\'souza’s case for the very same purpose.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>15.2.<span style=\"white-space:pre\">	</span>Per contra, Ms.Avni Chokshi, learned counsel for the workman on the other hand has relied on Balubhai Patel’s case and submitted that when an application under Section 33 of I.D.Act is made, the Tribunal initially has limited jurisdiction only to see whether a prima facie case is made out, which is the situation only when the domestic enquiry, preceding the order of dismissal is free from any defect. On the other hand, if there is any defect in the enquiry, the Labour Court or the Tribunal will give an opportunity to the employer to produce the evidence as also an opportunity to the workman to rebut and in such a situation, the Tribunal will be entitled to arrive at its own conclusion on merits of the evidence produced before it with regard to proof of misconduct charged. Thus, she submits that the prima facie view would only be relevant if the enquiry was proper, where enquiry was not proper, the Tribunal could come to its own conclusion. She also places her reliance on the decision of John D’souza’s case to contend that whenever there is a violation of natural justice or unfair labour practice, the Labour Court ought to independently examine the matter. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>15.3.<span style=\"white-space:pre\">	</span>There cannot be any dispute about the proposition as contended by both the counsel. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>15.4.<span style=\"white-space:pre\">	</span>Hence, I answer Point No.2 by holding that whenever an enquiry is found to be proper and correct by the Labour Court, then the Labour Court ought to only consider the prima facie nature and if the decision of the employer in imposing the relevant punishment is plausible. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>16.<span style=\"white-space:pre\">	</span>Answer to Point No.3:<span style=\"white-space:pre\">	</span>Whether the enquiry which has been conducted is fair and proper?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>Though several arguments have been advanced by both the sides as regards whether the enquiry was fair and proper, in the present case, I am of the considered opinion that the said question need not be gone into for the simple reason that the Industrial Tribunal has already come to a conclusion that the enquiry was not fair and proper and it is in furtherance of the same that the employer has led evidence before the Labour Court in Reference No.51/2015 which has been considered by the Labour Court in the impugned judgment. The award having been passed on the basis of the evidence having been led, it is those aspects which would be required to be considered by this Court.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>17.<span style=\"white-space:pre\">	</span>Answer to Point No.4: Whether the evidence available on record can be said to have material inconsistencies?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>17.22.<span style=\"white-space:pre\">	</span>The complaint which has been made is by the students who have stated the basic requirement to their Principal to take action. Non-mentioning of licence plate number would not enure to the benefit of the workman. There is much sought to be made out as regards the colour of the vehicle by stating that it is ash grey bike or silver bike. This need not hold me much longer since ash grey or silver are more or less similar and each person describing a colour in a particular manner. This I am of the considered opinion that there is no inconsistency in the evidence let alone material in the evidence which has been placed on record. The burden of proof in a disciplinary enquiry is to be assessed on the basis of preponderance of probability and not on the basis of beyond reasonable doubt, the evidence led by preponderance of probability would to my mind indicate the culpability of the workman. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>17.23.<span style=\"white-space:pre\">	</span>I answer Point No.4 by holding that in the evidence on record there are no material inconsistencies to take away the culpability of the workman established by applying the rule of preponderance of probability.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>18.<span style=\"white-space:pre\">	</span>Answer to Point No.5: Whether the finding of the Labour Court suffers from any legal infirmity?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>18.3.<span style=\"white-space:pre\">	</span>I am of the considered opinion that the entire approach of the Labour Court in this regard is misplaced. The Labour Court has proceeded with the matter as if the same were a criminal prosecution requiring the allegations to be proved beyond reasonable doubt. It is trite law that any aspects relating to departmental enquiry, burden of proof is to be discharged on the basis of preponderances of probabilities and not on the basis of beyond reasonable doubt. The Labour Court ought not to have applied the principles applicable to a criminal prosecution to a disciplinary enquiry more so when the present proceedings are relating to students in a hostel one of whom had lost the mobile and others had searched and found the phone as also deposed that the workman was in the premises and handed over the phone. There is no evidence led to indicate that the students were inimically disposed to the workman or that the students had acted at the behest of the employer, even otherwise such a claim is hard to believe.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>18.6.<span style=\"white-space:pre\">	</span>The Labour Court has also observed that there are no eyewitnesses who have deposed to the incident. Of course there is no eyewitness to the theft of a phone but there are enough and more witnesses who were present at the time of recovery of the phone. The recovery of phone in the possession of the workman without any explanation would lead to an unsurmountable conclusion that the theft had also been committed by him. The circumstances aforesaid in my considered opinion are sufficient to hold the workman guilty of having committed the theft of a phone and the concealment thereof in a departmental enquiry. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>18.7.<span style=\"white-space:pre\">	</span>Hence, I am of the considered opinion that the finding of the Labour Court in this regard is not proper and is required to be set aside.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>19.<span style=\"white-space:pre\">	</span>Answer to Point No.6: Whether this Court would have jurisdiction to interfere with the order passed rejecting an application under Section 33 (2) (b) of I.D.Act?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>19.2.<span style=\"white-space:pre\">	</span>The Labour Court if were to commit any error, the filing of a present writ petition would be the adequate remedy available to either the workman or the employer depending on whether the application under Section 33 (2)(b) of I.D.Act is allowed or rejected. Thus, I answer Point No.6 by holding that this Court would have jurisdiction to interfere with an order rejecting an application under Section 33 (2)(b) of I.D.Act. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>20.<span style=\"white-space:pre\">	</span>Answer to Point No.7: Whether an application under Section 17B of the I.D.Act has to be considered prior to consideration of the matter on merits or could the said application be considered along with the merits at the time of final hearing and final order being passed?<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>20.4.<span style=\"white-space:pre\">	</span>In the present matter, the petition being taken up for final hearing, the said application under Section 17B was not considered. That does not however preclude or take away the right of the workman inasmuch as the entitlement of the workman is defined under Section 17B of the I.D.Act and the said right arises immediately upon a challenge made by the employer of an order of reinstatement. If the reinstatement had not been challenged, the workman would have been reinstated, would continue the work and be paid for the work done. It is only on account of the reinstatement order being challenged, the workman has no work and no wages. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>20.5.<span style=\"white-space:pre\">	</span>The right of Section 17B wages being a statutorily recognized right, the said right can never be negated by delay in consideration of application under Section 17B. The delay attributable to any reason cannot deprive the statutory right vested in the workman for 17B wages. 17B wages is required to be paid from the month after the award being published under Section 17 of I.D.Act in terms of the decision of the Hon’ble Apex Court in the case of M/s.Haryana Suraj Malting Ltd., vs. Phool Chand12. Thus, even though the application is now being considered along with the main, this statutory right which was vested with the workman is required to be fulfilled and the employer having challenged the reinstatement would be liable to make payment of 17B wages as observed above. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>20.6.<span style=\"white-space:pre\">	</span>A right under Section 17B inheres in a workman as soon as a challenge is made to the reinstatement and is subject only to the proviso to Section 17B, that is, if the employer were to prove that the workman had been employed and had received adequate remuneration during the said period, the Court could order that no wages shall be payable. The only exception being the employment of the workman. If the workman were not employed and/or if the employer were unable to establish such employment, the right under Section 17B is absolute and the said payment is required to be made by the employer on a challenge being made to reinstatement order. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>20.7.<span style=\"white-space: pre;\">	</span>Hence, I answer Point No.7 by holding that whenever an order of stay of reinstatement is passed, the courts would have to do so by directing the employer to make payment of Section 17B wages unless the employer were at that stage be able to show that the workman is gainfully employed, if such an order is not passed at such stage than on an application under Section 17B of the I.D.Act being filed the same is required to be considered at the earliest preferably as soon as the application is filed. If however the said application is not considered at that stage, but is considered when the final arguments are taken up, even then, the workman would be entitled to Section 17B wages merely on account of a challenge being made to a reinstatement order, unless the employer were to prove the exception in terms of the proviso to Section 17(B). </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>21.<span style=\"white-space: pre;\">	</span>Answer to Point No.8: What order?<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b> i.<span style=\"white-space:pre\">	</span>The Writ Petition is allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '22dfbaf0b7f396b21ffdd66bd51108d7.JPG', 'a8f63faf5888f2d6bcbf69ff4da3e3e1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-24', 1, '', '', '2023-04-21 15:00:38', '2023-04-24 04:34:09'),
(2941, 'nm19csYtxwSXa1tdrxwIQh09c', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'KT & CP Act. When designation of land in the Master Plan as park is lapsed due to non-acquisition within five years, the landowner is entitled for conversion of the land as per the new classification of the land under the Master Plan. Karnataka High Court', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K Siddappa and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 13439 of 2021 decided on 20 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The petitioners claim to be the owners of the land in Sy.No.7/13 at Chandra Mavina Koppalu in Sagara Town, the land of the petitioner was earlier designated for the purpose of parks and open spaces. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>In the year 2008, the same not having been acquired in terms of Sub-Section (1) of Section 69 of the Town and Country Planning Act,1961 (KTCP Act) the reservation having lapsed, an application was submitted by the petitioners for re-classification of the land as residential which was so re-classified on 9.8.2018. Thereafter, the petitioners submitted an application under Section 95 of the Land Revenue Act seeking for conversion of the land from the earlier agricultural to non-agricultural residential purposes, as regards which the required no objection was not issued by respondent No.4 and it is in that background, that the petitioners are before this court seeking for the aforesaid reliefs for.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>In terms of Section 12 of the KTCP Act in the master plan which is prepared by the concerned planning authority there are various uses, zones and areas which are required to be earmarked.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>Section 69 imposes an obligation on the Planning Authority to acquire any land designated in the master plan for public purposes by agreement or exercising rights under the Right to Fair Compensation Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013. This acquisition to be made within a period of 5 years from the date of such designation in the master plan.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 10.<span style=\"white-space:pre\">	</span>In terms of Sub-Section (2) of Section 69, the land designated for public purpose under Sub-Section (1) of Section 12 except Clause B thereof, would lapse if the land is not acquired within a period of 5 years. Clause-B of Sub-Section (1) of Section 12 deals with complete street pattern indicating Major and Minor Roads, National Highways, State Highways and Traffic Circulation and etc., i.e. apart from a designation in terms of Clause B of Sub-Section (1) of Section 12 any other reservation made under Section 12 for the public purposes more particularly under Clause (C) of Sub-Section (1) of Section 12 would lapse, if the same is not acquired by the planning authority within a period of 5 years. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>In the present case, admittedly the land of the petitioner was designated for public and open spaces which is a reservation under Clause (C) of Sub- Section (1) of Section 12, land admittedly not having been acquired the period of five years having lapsed the designation has also lapsed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>On such lapse the land owner had a right in terms of Sub-Section (3) of Section 69 to seek for the designation of the said land to another purpose by making necessary application thereunder. In terms of Sub-Section (3) of Section 69 on an application being made a public notice was admittedly taken out by respondent No.4 on 6.3.2017, no objection having been received thereto, the application of the petitioner submitted on 25.1.2016 was considered by respondent No.4 in its meeting on 9.5.2018 and the said land designated for residential purposes by collecting necessary amounts.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>The designated purpose having lapsed the said land designated for different purpose namely residential purpose, it is this different purpose which is what is to be held to be designated purpose under the master plan or development plan as on the date on which an application for conversation has been made by the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>The said land has been reserved for residential purposes in terms of Clause (A) of Sub-Section (1) of Section 12. In terms of Section 95 of the Karnataka Land Revenue Act, 1964 any land which is designated for agricultural purposes can be delineated for non- agricultural purposes. In terms of proviso to Sub-Section (2) of Section 95 if an agricultural land comes under a local planning authority and the master plan designates the use of the land for a particular purpose, the permission for conversion is deemed to have been granted subject to payment of fine prescribed by the Sub-Section (7) Section 95.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>In view of the above, the land of the petitioner now being designated for residential purposes an application for conversion having been made by the petitioner, the said conversion application would have to be considered in terms of present designation of the land as residential and the procedure prescribed under proviso to Sub-Section (2) of Section 95 is required to be followed by the revenue authority. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>In so far as the objection raised by the Deputy Commissioner as regards the land being in a low lying area which cannot be used for residential purposes the same would only arise for consideration once an application for plan sanction or layout plan sanction is made by the petitioner which could be considered by the Planning Authority.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space:pre\">	</span>Writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c1b60a0e28a102aff54e499c39fa4f61.JPG', '3b1780a60c601857391e7faf01eced7e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-22', 1, '', '', '2023-04-21 15:07:36', '2023-04-22 03:21:41');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2945, 'Nb6v63cXDdMdJm5WCWcbFNIW4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Facilitating Woman who plays the God”. Karnataka High Court evolves Genetic Test, Physical Test and Economic Test while directing Surrogacy Board to consider application of man who crossed 55 years age bar. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>H. Siddaraju and others Vs The Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 5861 of 2023 decided on 21 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>All love begins and ends with motherhood, by which a woman plays the God. Glorious it is as the gift of nature, being both sacrosanct and sacrificial, though; now again, science has forced us to alter our perspective of motherhood,” says Robert Brown. The altered perspective is what forms the kernel of this conundrum. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioners are before this Court calling in question validity of Section 2(1)(zg) and Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 (hereinafter referred to as ‘the Act’ for short).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space:pre\">	</span>Shorn of unnecessary details, facts in brief, are as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioners are husband and wife, from their wedlock had a son. The mother owing to certain health problems, undergoes surgery for removal of her uterus and, therefore, the uterus is no longer a part of the body of the mother. The son of the petitioners, completes his MBBS course and was undergoing internship at a College in Mangalore.The son on 13-12-2022, dies due to a road traffic accident. The couple on losing their son go into depression. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>The 1st petitioner is working as a First Division Assistant in the Government Arts College, Bengaluru and the second petitioner is a home maker and a business woman, is what is averred in the petition. The further averment in the petition is that, the 1st petitioner visited several Shishu Kendras/ home for children, who informed him about the process of registering with Central Adoption Resource Authority, which is a nodal body of the Central Government monitoring and regulating in-country and inter-country adoption under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000. The 1st petitioner was told that there is large number of prospective parents registered in the organization and it would take minimum of 3 years for the petitioners to get a child in adoption. Later on medical consultancy, the petitioners come to know that they could have a child by way of surrogacy, within nine months and are told that surrogacy is regulated by the Surrogacy (Regulation) Act, 2021 (‘the Act’ for short) and the Surrogacy (Regulation) Rules, 2022 framed under the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>In furtherance of the intention of the petitioners to have a child on surrogacy, the sister-in-law of the 1st petitioner, one Smt. S.M.Prathiba comes forward to donate her egg and a close family friend Smt. Priyasarvanan, aged about 25 years and a mother of two children had agreed to be a surrogate mother and the sperm of the 1st petitioner would be used to fertilize the donated egg. It is averred that, it is purely for altruistic purpose and no commercial intentions are behind it. What comes as an embargo, are the provisions of the Act which prohibit the petitioners and the like to have a child by way of surrogacy. It is in the wake of provisions of the Act placing such embargo and the desire of the 2nd petitioner to become a mother by surrogacy, has led the petitioners to this Court, in the subject petition, calling in question those provisions which place an embargo upon the intention of the petitioners to have a child by way of surrogacy.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. In furtherance whereof, the issue that falls for consideration is, <i>whether the petitioners will be entitled to the prayers that are sought for?</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>Certain provisions of the Act are germane to be noticed. Section 2 deals with definitions. Certain definition clauses are significant for consideration of the issue in the lis.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">Section 2(1)(b) defines ‘altruistic surrogacy’ to mean surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on surrogate mother are given to the surrogate mother or her dependent or her representative; Section 2(1)(g) defines ‘commercial surrogacy’ which is completely in contrast with altruistic surrogacy. Selling or buying of human embryo or trading in sale or purchase of human embryo or gamete or selling or buying the surrogate motherhood all of which would come under the umbrella of commercial surrogacy; Section 2(1) (i) defines ‘egg’ to include a female gamete; Section 2(1)(n) defines ‘gamete’ to mean sperm and oocyte; Section 2(1)(s) defines ‘intending woman’ to mean an Indian woman who is a widow or a divorcee between the age of 35 to 45 and who intends to avail the surrogacy; Section 2(1)(v) defines ‘oocyte’ to mean naturally ovulating oocyte in the female genetic tract; Section 2(1)(zd) defines ‘surrogacy’ to mean a practice whereby one woman bears and gives birth to a child for an intending couple after the birth; Section 2(1)(r) defines an ‘intending couple’ to mean a couple who have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy; Section 2(1)(zg) defines ‘surrogate mother’ to mean a woman who agrees to bear a child, which would be genetically related to intending couple through surrogacy from the implantation of embryo in her womb and fulfills all other conditions; Section 2(1)(zb) defines ‘State Board’ to mean the State Assisted Reproductive Technology and Surrogacy Board. Section 2(1)(e) defines a Board which would mean a National Assisted Reproductive Technology and Surrogacy Board constituted under Section </font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">17. The appropriate authority is notified under Section 35 of the Act and Section 36 prescribes functions of the appropriate authority. The applications filed by the intending couple are to be placed before the appropriate authority who in terms of Section 36 has the power to accept or reject it within 90 days.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>What is germane to be noticed for the issue in the lis is sub-section (b)(I) and sub-section (c)(I) of Section 4. Section 4(b) directs that the surrogate mother who is in possession of an eligibility certificate issued by the appropriate authority must fulfill certain conditions, they are, no woman, other than a married woman having a child of her own and between the age of 25 to 35 on the day of implantation, shall be a surrogate mother or help in surrogacy by donating her egg or oocyte or otherwise. Section 4(c) imposes certain conditions for grant an eligibility certificate. Section 4(c)(I) mandates that the intending couple should be married and the female should be between the age of 23 to 50 and the male should be between 26 to 55 on the date of certification. Another Act was notified along with the Surrogacy (Regulation) Act, called the Assisted Reproductive Technology (Regulation) Act, 2021 (hereinafter referred to as ‘the ART Act’ for short). The ART Act prescribes the reproductive assistance and its regulation. This is the broad frame work of the Act which deals with the intention and procedure for intending couple to become surrogate parents.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>The agonizing and depressed condition of the mother drives the 1st petitioner/husband to all the adoption centers only to be told that there was long waiting period as adoption has to be done in terms of the provisions of Juvenile Justice Act. These circumstances lead the couple to scout for a method of having a child to get over the unbearable agony. This leads to an intention of having a child by way of surrogacy as the 2nd petitioner/mother whose uterus had been removed could not bear a child and could not even give egg / gamete. Therefore, the sister-in-law of the husband comes forward to donate her eggs / gamete.   After finding a donor of the eggs a family friend comes forward to bear the child or become a surrogate mother. The sperm of the husband would be used to fertile the donated egg of the sister in-law of the husband. The averment in the petition is that it is purely for altruistic purpose and notwithstanding this the couple would be unable to bear the child owing of two provisions under the Act. One being definition in Section 2(1)(zg) supra which mandates a surrogate mother can only be a women who agrees to bear a child who is genetically related to the intending couple or intending woman. In the case on hand, the surrogate mother is not genetically related to the petitioners though the donor of the egg is related to the couple. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>The other provision is Section 4(c)(I) which mandates that intending couple should be married and the woman should not have crossed 50 years of age and the man should not have crossed 55 years of age. The mother in the case at hand comes within the provisions of law as she is yet to cross 50 years. The father/1st petitioner suffers a disability as he has crossed 55 years of age and he is 57 years now. In the light of these provisions placing an embargo upon the motherhood of the wife, the petitioners have called these provisions in question.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>What offends the petitioners according to the averment is that the intending couple, married should be between the age of 23 to 50 in the case of a female and between 26 to 55 in the case of a male. This is as on the date of the certificate being issued for eligibility to the intending couple by the appropriate authority. The 1st petitioner/husband is now 57 years old. The 2nd petitioner/wife is 45 years old. In terms of the afore-quoted provision the 1st petitioner loses eligibility to become a father by way of surrogacy. The wife has no problem. Therefore, the argument is the age restriction has no rationale behind it and has to be obliterated. According to the counsel, it should be made age free, both to the husband and the wife who are intending couple. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>The mother, on account of certain health ailment has undergone hysterectomy. Therefore, cannot ovulate or donate eggs/ gamete for surrogacy. Sister of the wife has come forward to donate the eggs. The embryo would be an amalgam of the eggs from the sister-in-law of the husband and the sperm of the husband. The law prohibits it, as the husband is beyond 55 years as noted above. The emphatic submission of the petitioner is that, there is no rationale behind the prescription of the cut off age and there being no rationale, the provision is unconstitutional. I decline to accept the submission that there is no rationale behind the stipulation of the cut off age of 55 years for the husband to become an intending father by way of surrogacy, but this Court has to salvage the situation that is brought before the Court. It is therefore, in the opinion of this Court it is necessary to iron out the creases in the legislation. Ironing out the creases by the constitutional Courts of the provisions of law as promulgated without disturbing the content of the statute is permitted exercise of judicial review, as the law makers at the time of making the law would not have envisaged a situation of the kind that is generated in the case at hand.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Reference being made to the judgment of the Court of Appeal, England, in the case of SEAFORD ESTATE V. ASHER1, becomes apposite, in which Lord Denning observes as follows:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b> “Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word sc as to give “force and life” to the intention of the legislature. That was clearly laid down by the resolution of the judges in Heydon\'s case18, and it is the safest guide to-day. Good practical advice on the subject was given about the same time by Plowden in his second volume Eyston v. Studd19. Put into homely metaphor it is this: A judge should ask himself the question: If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as they would have done. A judge must not alter the material of which it is woven, but he can and should iron out the creases.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b> Approaching this case in that way, I cannot help feeling that the legislature had not specifically in mind a contingent burden such as we have here.”<br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Therefore, on such ironing out, I deem it appropriate to evolve a triple test theory to permit the petitioners to avail of procedure of surrogacy, in the peculiar facts of this case by directing conduct of 3 tests. The first petitioner has to cross the wall of the triple tests to become eligible to become a father by surrogacy. All the tests directed are aspects which are in public domain. The tests would be:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space:pre\">	</span>Genetic Test.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> (ii)<span style=\"white-space:pre\">	</span>Physical Test and</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> (iii)<span style=\"white-space:pre\">	</span>Economic Test.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>The aforesaid observation and direction is owing to the peculiarity of the circumstances generated in the case at hand. For the law to be corrected, it is for the legislature to ponder over the issue, as the Act nowhere leaves any discretion to the Board be it National or the State, to the Appropriate Authority be it Center or the State to have any play in the joints to salvage any unique situation, to consider and issue eligibility certificate to the intending couples. As it is trite, when the legislature enacts a law, it does not say everything on the subject as every conceivable eventuality of the future would not be present at the time when the law makers make the law. It is those legislative silences that generate relief of the kind that is sought to be granted in the case at hand. As observed, this Court is concerned with the case at hand and intends to iron out the crease, direct conduct of triple test upon the 1st petitioner and on such tests, direct consideration of the case for grant of eligibility certificate from the hands of the Authority under Sections 35 and 36 of the Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>The other provision that is under challenge is Section 2(1)(zg) of the Act. Section 2(1)(zg) defines who is a surrogate mother. The women i.e., the surrogate mother has to be genetically related to the intending couples. Here lies the choke to the petitioners. The intention behind the provision is, misuse of the method of surrogacy. Therefore, the surrogate mother who seeks to lend her womb for surrogacy should do so only in cases of altruistic surrogacy and not commercial surrogacy. What is permitted under the Act is altruistic surrogacy and not commercial surrogacy. Therefore, it becomes necessary to notice what is altruism.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>18.<span style=\"white-space:pre\">	</span>Altruism, as defined in plethora of dictionaries would mean, when a person acts to promote someone else’s welfare, even at the risk or cost to themselves, if the provision that is called in question 2(1)(zg) is considered qua altruistic surrogacy, it would become an object of contradiction, as 2(1)(zg) mandates that the surrogate mother should be genetically related to the intending couple.   If that be so, altruism is illusory if everything happens within the family. In the considered view of this Court, Altruistic surrogacy should mean, surrogacy by an outsider. Therefore, the provision runs counter to the philosophy or principle behind the enactment. The words “genetically related” appearing in Section 2(1)(zg) can only mean that the child to be born through surrogacy should be genetically related to the intending couple, failing which, the words genetically related would not have any meaning if it were to be said that the surrogate mother should be genetically related to the intending couple. That defeats both altruism and logic.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>19.<span style=\"white-space:pre\">	</span>Though the petitioners have called in question the provisions as afore-quoted in the prayer. It is brought to the notice of this Court that the entire gamut of challenge to the provisions of the Act is pending consideration before the Apex Court where the National Board of Surrogacy has been asked to submit their reply to all the contentions advanced before the Apex Court. Therefore, striking down the provisions as sought by the petitioner, at this juncture, is unavailable. They would all remain subject to, further orders to be passed by the Hon’ble Apex Court.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(i)<span style=\"white-space:pre\">	</span>Writ Petition is allowed in part.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b> (ii)<span style=\"white-space:pre\">	</span>The challenge to the provisions - Section 2(1)(zg) and Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021, at present, is not considered, as they would be subject to the pendency proceedings before the Apex Court.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '114ccec36ce52281160fc0a0b3aca403.jpeg', '013eb47c849411974e1fb8c11194bf5d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-26', 1, '', '', '2023-04-26 17:04:16', '2023-04-26 12:35:58'),
(2992, '3HVjJLahPv7M8OG8n5pEm9iDU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Once a tenderer is declared to be a successful bidder and called for negotiations, the tender cannot be cancelled without passing an order of rejection and communicating such rejection to the bidder. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Karnataka Commercial and Industrial Corporation Pvt Ltd Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 5449 of 2023 decided on 16 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is before this Court calling in question notification dated 21-02-2023 by which the 2nd respondent - Deputy Director of Horticulture, Lalbagh has called for a fresh Request for Proposal (Notice Inviting Tender) to provide service for collection of entry fee and vehicle parking fee at Lalbagh gardens for a period of two years. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Facts adumbrated are as follows:- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The petitioner claims to be a private limited company incorporated under the provisions of the Companies Act, 1956 and is engaged in the business of manpower services and various other services incidental to and that of collection of entry fee from visitors in various establishments. It is the claim of the petitioner that the petitioner has provided services relating to parking fee and entry fee aspect at Lalbagh, Metro Station and Airport. On 29-09-2022 the 2nd respondent - Deputy Director of Horticulture, the competent authority floats a tender by issuance of Request for Proposal (hereinafter referred to as ‘the tender’ for short) calling for bids to provide service for collection of entry fee and vehicle parking fee at Lalbagh for a period of two years. It was said to be a two cover tender. The tender was called for to expect revenue of Rs.3.49 crores per year. Considering itself to be eligible in terms of the conditions stipulated the petitioner submits its bid. The petitioner was declared technically qualified and his financial bid was opened which quoted Rs.7,62,60,000/- for a period of two years. The Tender Scrutiny Committee found that except the bid of the petitioner no other tenderers’ bid was responsive as none of them were technically qualified. It is, therefore, the petitioner became the sole bidder. In the light of it becoming the sole bidder and it being contrary to competitive bidding, the respondents did not proceed further with the tender notification.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>The afore-narrated facts are not in dispute. Certain dates and link in the chain of events require reiteration. The first tender was notified on 29-09-2022. It is a two cover tender and for a period of two years. Tender was notified for the purpose of collection of entry fee and vehicle parking fee at Lalbagh Gardens, Bengaluru. In the said tender though there were several tenderers, all others were technically disqualified except the petitioner. Finding that the petitioner’s bid was the sole one that was technically qualified and it was not a competitive, the tender was cancelled and a fresh tender notification comes to be issued on 05-12-2022.   This is the second tender notified.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>The State traces its power to act in this manner to Section 14 of the Act. Section 14 of the Act reads as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“14. General rejection of tenders.- (1) The Tender Accepting Authority may at any time before passing an order of acceptance under Section 13 reject all the tenders on the ground of changes in the scope of procurement , failure of anticipated financial resource, accidents, calamities or any other ground as may be prescribed which would render the procurement unnecessary or impossible and report the same to the Procurement Entity. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(2) The Procurement Entity shall thereafter communicate the fact of the rejection under this section to all the Tenderers and also cause the same to be published in the Tender Bulletin”. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Section 14 depicts that the Tender Accepting Authority may at any time before passing an order of acceptance under Section 13 reject all the tenders on the ground of changes in the scope of procurement; failure of anticipated financial resource, accidents, calamities, or any other ground as may be prescribed which would render the procurement unnecessary or impossible and report the same to the Procurement Entity. Under sub-section (2) the Procurement Entity shall thereafter communicate the fact of rejection under this section to all the tenderers and also cause the same to be published in the Tender Bulletin. It is not in dispute that the subject tender is issued under the provisions of the Act and it is a two cover tender. Being a two cover tender system would mean that the bids are divided at two stages – one technical qualification and the other the financial credentials. Therefore, it is a tender that is notified in terms of the Act. The Act contemplates conclusion of such tender in terms of the provisions of the Act. Section 14 (supra) mandates certain duties and responsibilities of the Tender Inviting Authority, if the Tender Scrutiny Committee opines to reject all the tender/s. The case on hand will have to be considered on the backbone of Section 14 (supra). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>The section mandates that the Tender Accepting Authority may reject all the tenders on the ground of changes in the scope of procurement. There is no such deliberation, failure in the anticipated financial resource or accidents, calamities or its impossibility for the procurement entity to continue with the tender. None of these situations are projected by the State by way of communication to all the tenderers or at least to the successful bidder, the petitioner herein. If the petitioner had been declared to be a successful bidder and the State had called him for negotiations, the State could not have used Section 14 as a tool to cancel the tender without passing an order of rejection and communicating such rejection to the petitioner and then calling for fresh tender. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>In the case at hand, when the petitioner was expecting a work order, what comes about is a fresh tender notification. A caveat, this Court is not pronouncing upon the fact that once a tenderer is declared to be highest bidder or lowest bidder, the State does not have power to recall the tender; cancel the tender or issue a fresh tender, it does. It should be informed by reasons and those reasons should be informed to all the tenderers in terms of Section 14 of the Act, failing which, such actions of the State would become arbitrary. It is an admitted fact that there is no order of rejection and the State has not produced any communication which would demonstrate compliance with sub-section (2) of Section 14 of the Act. Certain documents are appended to the statement of objections to buttress the submission that the State has called for a fresh tender as it would incur a loss of Rs.1.2 crores if the petitioner was awarded the contract notwithstanding the fact that he was the highest bidder for which a chart of calculation during the period between 21-09-2021 and 31-08-2022 is produced. According to the learned Additional Advocate General the total amount collected in that period was Rs.9,02,08,020/- which included flower show of August 2022 and January 2023. Placing reliance upon this, the learned Additional Advocate General seeks to contend that the tender ought to have been called for Rs.9/- crores as the collection was Rs.9/- cores but it was called for a lesser price.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>It is not once, but twice the tender, is called by the Tender Inviting Authority. At no point in time it was projected to be Rs.9/- crores. In both the tenders the expected price was Rs.3.49 crores per year.   It was never Rs.4.50 crores, per year at any point in time. Therefore, the only reason rendered in the statement of objections projecting the earlier period of collection is that it ought to have been Rs.9/- crores, is contrary to the facts. The Tender Inviting Authority has, with eyes wide open, not once but twice has called for tender indicating a particular price. Now completely contrary to Section 14, an order of fresh tender is issued in blatant violation of every tenet of Section 14. The State cannot justify on the issue of price which was never projected in any of the notices inviting tenders. Therefore, the action of the State cannot but be termed to be arbitrary.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">19.<span style=\"white-space:pre\">	</span>Reference being made to the judgment of the Apex Court in the case of TATA CELLULAR v. UNION OF INDIA3 becomes apposite.<br></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This judgment is subsequently followed by the Apex Court in the case<span style=\"white-space: pre;\">	</span>MICHIGAN RUBBER (INDIA)<span style=\"white-space: pre;\">	</span>LIMITED<span style=\"white-space: pre;\">	</span>v. STATE<span style=\"white-space: pre;\">	</span>OF KARNATAKA4. The Apex Court in the case of MICHIGAN RUBBER has held as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> “23. From the above decisions, the following principles emerge:</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(a)<span style=\"white-space: pre;\">	</span>The basic requirement of Article 14 is fairness in action by the State, and non- arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities;</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>(b)<span style=\"white-space:pre\">	</span>Fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very limited;</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The Apex Court holds that the basic requirement of Article 14 is fairness in action by the State and not arbitrariness is the essence and substance of fair play. Those actions are amenable to judicial review only to the extent that the State must act validly for a discernible reason. It is those tenets that have been broken in the case at hand. Therefore, the facts in the case at hand become an appropriate subject matter for exercising judicial review and obliterating the impugned action of issuance of a fresh tender notification.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f45490566b0c7fd4688e135d21ad75c5.jpeg', 'a5f3b48fc98f9bd80ba02e17a057ef92.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-26', 1, '', '', '2023-05-25 13:46:55', '2023-05-26 06:43:36');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2944, 'G1thv6CTExOr9SQw8qfSKKhfY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Labour Law. Dismissal of workman on the ground of loss of confidence of the employer in the workman would not prevent the Labour Court from passing an order of reinstatement. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rudresha Vs The Management of M/s TVS Motor Company.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 52668 of 2014 decided on 5 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The workman is an Ex-Serviceman who worked in the Army for 17 years having discharged combat duty in Kargil and other forward sectors viz., Poonch and Tawang and had received ‘Long Service and Good Conduct Medal’. The workman joined the service with the employer as a Security Guard on 22.04.1999</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>On 16.08.2006, when the workman was on duty at the main gate, he allowed the Truck Bearing No.AP- 29-U-205 to pass through the main gate after checking the invoice at 0045 hours. Alleging that the workman has not checked the truck properly due to which one additional two wheeler which had been loaded on the truck was allowed&nbsp; to pass, a show cause notice dated 25.08.2006 came to be issued alleging negligence in work on part of the workman. The workman replied to the said notice. The management issued a show cause notice on 11.09.2006 alleging that on 13.08.2006 and 20.08.2006, the workman had not given respect to his superior by not saluting them and talking to them casually with disrespect. The workman submitted his reply on 15.09.2006 denying the allegations.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>A single domestic enquiry was conducted in respect of both notices. The Enquiry Officer submitted his report on 05.03.2007 holding that all the charges against the workman had been proved. A second show cause notice dated 16.06.2007 was issued calling upon the workman to show cause why he should not be dismissed from service, which was replied to by the workman on 23.06.2007. The Disciplinary Authority proceeded to accept the report of the Enquiry Officer and imposed the punishment of dismissal of the workman.&nbsp; &nbsp;Aggrieved by the same, the workman had challenged the order of punishment. The Labour Court proceeded to set aside the punishment of dismissal and imposed punishment of withholding two increments with cumulative effect and awarded 25% backwages.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>It is aggrieved by the same, the workman has filed W.P.No.52668/2014 seeking for setting aside the punishment imposed and for grant of full backwages.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">8.<span style=\"white-space: pre;\">	</span>The employer is before this Court in W.P.No.37496/2014 contending that entire award is required to be quashed and order of punishment imposed by the Disciplinary Authority is required to be confirmed.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>The points that would arise for consideration by this Court are:&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>1)<span style=\"white-space: pre;\">	</span>In all case of dismissal, whether wrongful or otherwise, if the employer were to plead loss of confidence in the workman, would the Labour Court be prevented from passing an order of reinstatement?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2)<span style=\"white-space: pre;\">	</span>Whether, in the present case, the employer has been able to establish gross negligence or insubordination on part of the workman?&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3)<span style=\"white-space: pre;\">	</span>Whether the award passed by the Labour Court suffers from any legal infirmity requiring interference at the hands of this Court?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">4)<span style=\"white-space: pre;\">	</span>What order?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>Answer to Point No.1: In all case of dismissal, whether wrongful or otherwise, if the employer were to plead loss of confidence in the workman, would the Labour Court be prevented from passing an order of reinstatement?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>14.8.<span style=\"white-space: pre;\">	</span>The aspect of the employer losing confidence in the employee would have to be taken into consideration if all actions taken by the employer being proper and correct and the actions of the workman give raise to suspicion. In the present case, the contention of the workman is that the loading having been supervised by a supervisor, certified by a security guard and the same was accepted by the workman and the truck was allowed to pass.&nbsp; &nbsp;The number of vehicles loaded being 51, is properly shown in the loading ledger and it is for the supervisor and the security guard to have taken note of the same and taken action thereon, this not having been done, the employer has let to go of them with a warning but has victimized the present workman.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>14.9.<span style=\"white-space: pre;\">	</span>The said submission being established by a perusal of the ledger gives raise to situation where the employer’s conduct is in doubt inasmuch as knowing fully well that it was 30 + 6&nbsp; &nbsp;= 36 scooty peps and 15 aachees loaded on to the truck totaling to 51 has sought to contend that everything was done properly and has accepted the apology on the part of the supervisor and security guard at the loading area and now sought to impose the obligation and duty on the workman to have cross checked the number of vehicles loaded on to the truck.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>14.10.<span style=\"white-space: pre;\">	</span>In such a situation, I am of the considered opinion that the contention of the employer that it has lost confidence in the workman due to the workman allowing one extra vehicle to pass through the main gate is completely misconceived. The employer having let to go of the Supervisor and the security guard as also the contract labourers who had loaded the vehicles into the truck who are primarily responsible for loading the extra vehicle in my considered opinion could not have proceeded only against the workman.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>14.11.<span style=\"white-space: pre;\">	</span>In light of these facts, it cannot be said that in all cases where the employer expresses loss of confidence in the workman, the Labour Court or the Industrial Tribunal is barred from ordering reinstatement. The Labour Court or the Industrial Tribunal would have to consider the contention of the employer in the light of the surrounding facts and circumstamces to ascertain if such a suspicion is based on objective set of facts and motivations and not on the basis of any other extraneous factor.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>14.12.<span style=\"white-space: pre;\">	</span>In the present case, having come to a conclusion that suspicion is for an extraneous circumstances, and not borne out by the records, more so, the loading ledger, the contention of Sri.K.Kasturi, learned Senior Counsel that the employer lost confidence in the workman is liable to be rejected.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>Answer to Point No.2: Whether in the present case, the employer has been able to establish gross negligence or insubordination on part of the workman?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>15.5.<span style=\"white-space: pre;\">	</span>In that background, the manner in which the proceedings have been conducted, the over writing in the ledger, the expectation of the employer and the statements made during the enquiry as also before the Labour Court, I am of the considered opinion that there is a victimization of the workman by the employer when no action has been taken against the supervisor and the security guard at the loading area.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>15.6.<span style=\"white-space: pre;\">	</span>I answer point No.2 holding that the employer has not been able to establish gross negligence or insubordination on part of the workman.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>16.<span style=\"white-space: pre;\">	</span>Answer to Point No.3: Whether the award passed by the Labour Court suffers from any legal infirmity requiring interference at the hands of this Court?&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>16.1.<span style=\"white-space: pre;\">	</span>In view of the findings on Point Nos.1 and 2 above, the Labour Court taking into consideration all the above facts, I am of the considered opinion that the award passed by the Labour Court is not proper and correct inasmuch as the Labour Court in the award could not have come to a conclusion that there is negligence on part of the workman by permitting a vehicle in excess to go through the main gate having come to a conclusion that the workman was not responsible for loading the same and it is in that background that the Labour Court could not have come to a conclusion that the punishment of dismissal was harsh and shockingly disproportionate to the misconduct committed by the workman and thereafter imposed a punishment of reducing 2 annual increments.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>16.2.<span style=\"white-space: pre;\">	</span>Having come to a conclusion that there is no negligence on part of the workman and that there is no loss of confidence which can be objectively pleaded by the employer, I am of the considered opinion that there can be no misconduct said to have committed by the workman requiring any punishment to be imposed on him. Though not relevant, there is also no allegation against the workman of having enriched himself by way of misconduct and the vehicle has also been accounted for by the dealer.&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>16.3.<span style=\"white-space: pre;\">	</span>I answer point no.3 by holding that the award passed by the Labour Court suffers from legal infirmities as afore mentioned requiring interference at the hands of this Court.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space: pre;\">	</span>Answer to Point No.4: What order?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>ii.<span style=\"white-space: pre;\">	</span>W.P.No.52668/2014 filed by the workman is partly allowed.</b></font></span></p>', '2ca6311326e4cabdd90ec30b47cb644b.jpeg', 'b9b6a8088795e582a92e79247bc24b06.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-26', 1, '', '', '2023-04-26 16:22:18', '2023-04-26 16:22:18'),
(2985, 'rRF9cdry5ys9UtmAF97mk3eFo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'It is incongruous not to acknowledge the contribution of Veerashaiva/Lingayat Mutts in achieving the constitutional aspiration of eradicating illiteracy and its associated evils by providing free education without discrimination\'\'. Karnataka High Court.', '<p><b>Sri Jagadguru Murugharajendra and others Vs The Chief Secretary and others.<br><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">W.P. 25318 of 2022 decided on 22 May 2023.<br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Justice Krishna S Dixit.</span></b></p><p><b>These two petitions seek to lay a challenge to the Government Order dated 13.12.2022 whereby, the Respondent-Mr.P.S.Vastrad, a retired IAS officer, has been appointed as the Administrator for the Mutt & the institutions run by it. W.P.No.25316/2022 is filed by the Vidya Peetha, represented by its President, and the Mutt is represented by its Pontiff Dr.Shivamurthy Murugha Sharanaru through the GPA holder Sri.Basavaprabhuswamigalu. W.P.No.25318/2022 is filed by three individuals who claim to be the devotees of Mutt.</b></p><p><b>2. The Government specifically mentions that this Order has been made in exercise of the power availing under Articles 162 & 31A of the Constitution of India inter alia for safeguarding the movable & immovable properties of the Mutt and to prevent misappropriation of funds of the institution and further, to conduct the overall management effectively inasmuch as the Pontiff has been facing criminal cases is in judicial custody since 1.9.2022.</b></p><p><b>5. FACTS IN BRIEF:</b></p><p><b>(a) petitioner-Mutt originally established by Allamaprabhu, a 12th-century mystic saint and a poet who prolifically composed Vachanaas in Kannada. This saint and his order propagated the unitary consciousness of Self and Shiva, being the prominent patrons of the Lingayat movement that reshaped medieval Karnataka. Later, this Mutt was rejuvenated in the 16th century by another saint of great repute Sriman Niranjan Jagadguru Mahaswami and since then, it has been conducting anna daasoha & akshara daasoha to all sections of the society regardless of religion, region, race, caste, gender, place of birth or the like. By a long & committed yeoman service, it has carved out a niche for itself. Several educational institutions having been founded are being run successfully under the aegis of Mutt since decades. </b></p><p><b>(b) It is pertinent to state that, in Karnataka, several such Veerashaiva/Lingayat Mutts have been relentlessly providing education, professional, vocational & traditional to lakhs of people on affordable costs and that thousands of students prosecute their studies with free boarding & lodging facilities, sans discrimination on any grounds whatsoever. Nobody can justifiably dispute this. It is incongruous not to acknowledge the enormous contribution made by the Veerashaivas/Lingayats in general and their Mutts in particular, inter alia to the field of education. Siddhaganga Mutt, Suttur Mutt & Murugha Mutt have been in the forefront. It is no exaggeration to state that without that, the constitutional aspiration of eradicating illiteracy and its associated evils, would have remained merely as lofty ideals.</b></p><p><b>(d) Petitioner-Mutt which practises & professes Basava Tatva, mainly founded on humanitarian principles, has mediately established 105 educational institutions, professional & other, and that they are managed & administered by the Petitioner-Vidya Peetha. It is not in dispute that the Pontiff has the decisive role in all that These institutions have produced thousands of meritorious candidates, many of whom serve in public & private employment. Mutt has a registered Trust Deed dated 26.11.2010. Petitioner-Dr.Shivamurthy Murugha Sharanaru came to be installed as Pontiff of the Mutt on 31.1.1991 by his predecessor Sri Mallikarjuna Swamaji, again a tall saint of Basava Tatva Darshanaas. The Petitioner-Vidhya Peetha has been registered as a society under the provisions of the Karnataka Societies Registration Act, 1960 vide Certificate of Registration dated 21.6.1966. The Pontiff happens to be the President of the Trust, ex officio and he is described as the ‘supreme authority’.</b></p><p><b>(e) On 13.10.2022, Nazarbad Police, Mysore, registered against the Petitioner-Pontiff Crime No.155/2022 for the offences punishable under sections 376(2)(i), 376(3), read with section 149 of Indian Penal Code, 1860 and under sections 17, 5(1) & (6) of the Protection of Children from Sexual Offences Act, 2012 (hereafter ‘POCSO Act’). The Fast Track Court at Mysore transferred the investigation to the Rural Police, Chitradurga, on the ground of territoriality of offences. Accordingly, the said Police have registered Crime No.387/2022 for the same offences. The Pontiff & others having been arrested are continuing in judicial custody. The investigation having been completed, the Police have filed the two charge sheets as ‘A’ & ‘B’ in Crime No.387/2022. The Spl. Court at Chitradurga, having taken cognizance of alleged offences, has registered Spl.C.(P).No.181/2022 & Spl.C.(P).No.182/2022.</b></p><p><b>6. I have heard at length the learned counsel appearing for the parties and perused the Petition Papers; I have adverted to relevant of the Rulings prolifically cited at the Bar. The following questions are broadly framed for my consideration:</b></p><p><b>1. Whether the impugned order dated 13.12.2022 whereby, the government in exercise of its executive power under Article 162, has appointed the Administrator to the Mutt & to Vidya Peetha, is liable to be voided for want of competence…?</b></p><p><b>2. Whether Petitioner-Pontiff facing criminal cases and presently continuing in judicial custody, can exercise managerial functions of his office/position or as the President of the Trust in question by way of delegation…?</b></p><p><b>3. Whether the impugned order appointing the Administrator to the Mutt & the institutions, is violative of the Fundamental Rights guaranteed under Article 26 of the Constitution and therefore, is liable to be quashed…? </b></p><p><b>9. This court is inclined to grant indulgence in the matter for the following reasons:</b></p><p><b>(B) AS TO PETITIONER-MUTT BEING A RELIGIOUS DENOMINATION UNDER ARTICLE 26 OF THE CONSTITUTION:</b></p><p><b>(i) While Article 25 guarantees freedom of conscience and the right to profess, practice & propagate religion, the provisions of Article 26 complimentarily protect such right of every religious denomination. Under clause (a) of Article 26, every such denomination can establish & maintain institutions for religious & charitable purposes; the registered Trust Deed is an enabling instrument in this regard and that several educational institutions have been established under the aegis of Mutt, is not in dispute. Clause (b) gives the right to manage religious affairs of the denomination, on its own; clause (c) enables the denomination to own & acquire property and clause (d) empowers it to administer such property. A religious denomination or organization enjoys almost a complete autonomy in the matter of deciding as to what rites & ceremonies constitute essential religious practice according to the tenets of religion concerned and that the State has no authority to meddle with such decisions vide COMMISSIONER OF POLICE vs. ACHARYA JAGADISHWARANANDA AVADHUTA. </b></p><p><b>(iii) The submission of Petitioners’ counsel Mr.Patil that the “Lingayat community in the State by itself constitutes a separate religion like Jainism, Buddhism, Sikhism, etc” is hotly contested; it is told at the Bar that a similar question is being debated in a pending Public Interest Litigation. Added, both the Mutt & its Pontiff being the Petitioners, even otherwise, have denominational rights of the kind. Therefore, this question does not merit consideration in these cases. That being said, it cannot be controverted that Veerashaiva/Lingayat Mutt itself being a religious denomination, in the light of law declared in SHIRUR MUTT, supra, enjoys the constitutional guarantees inter alia enacted in Article 26; the mathaadhipati being the religious & temporal head of the Mutt can exercise these rights, of course subject to regulation/restriction by ‘law’.</b></p><p><b>(D) AS TO STATUS & RIGHTS OF A PONTIFF IN CUSTODY:</b></p><p><b>(i) Mr.Patil assisted by the advocates on record for the Petitioners submitted that the doctrine of innocence of accused comes to the rescue of the status of an accused as mathaadhipati. This was repelled by the other side. It was an English Barrister Sir William Garrow (1760-1840), who coined the ‘presumption of innocence’ in Criminal Jurisprudence, having been inspired by a French Cannon lawyer Jean Lemoine (1250-1313) from whom this idea originated. The House of Lords in WOOLMINGTON vs. DPP18 described this presumption ‘as being the golden thread running through the web of English Criminal Law’. An accused is presumed to be innocent till proven guilty, has been firmly established even in Indian Jurisprudence subject to all just exceptions. It is a matter of common knowledge that not only accused persons in detention but even convicts serving the sentence exercise proprietary rights of ownership.</b></p><p><b>The Electoral Jurisprudence as obtaining in the country does not bar a person in detention from contesting as candidates inter alia in the elections to the Parliament & State Legislatures, subject to all just exceptions. Similarly, the Service Rules promulgated for regulating the conduct of the persons in public employment such as civil servants normally provide for automatic suspension, if they are arrested & detained for a specified period. </b></p><p><b>(E) AS TO EXECUTIVE POWER OF THE STATE AND THE MEANING OF ‘LAW’:</b></p><p><b>(vi).... In the fact matrix of the said case, a finding was recorded as to no curtailment of rights of mathaadhipati having happened. In other words, the case turns out to be more fact-specific and it is apparently in variance of facts of the case at hands, wherein there is a rank interference of the State to the substantial exclusion of Petitioner-Pontiff, as if his status and powers as such have been kept under suspended animation on account of detention per se. It is this distinct question which constitutes the jugular vein of the case and therefore, keeps distance from the ruling cited at the Bar. Therefore, it cannot be construed as laying down any concrete ratio supportive of the case of Respondent-authorities, mainly because the Bench did not choose to invalidate the appointment of Administrator. Added, no discernible ratio arises even by applying the popular tests like Wambaugh’s Test26 or Dr.Upendra Baxi Test.</b></p><p><b>(F) AS TO EXECUTIVE POWER OF THE STATE UNDER ARTICLE 162 OF THE CONSTITUTION, ITS NATURE, SCOPE & AVAILABILITY:</b></p><p><b>(ii) True, it is that section 78 of the 1997 Act repealed as many as seven enactments of which, the Bombay Public Trusts Act, 1950 Madras Hindu Religious and Charitable Endowments Act, 1951, the Mysore Religious and Charitable Institutions Act, 1927, the Coorg Temple Funds Management Regulation, 1892 & Coorg Temple Funds Management Act, 1956, are relevant, others not being applicable. It is also true that the 1997 Act is not applicable inter alia to Mutts, as such; section 1 of Karnataka Amending Act No.27 of 2011 reads: “The maths and temples attached to the maths are kept out of the purview of the Act, as the maths are headed and managed by mathadipathis.” This provision unmistakably evinces the legislative intent to immune Mutts as a distinct class of religious institutions from State control & regulation. Therefore, the repeal of the subject statutes does not create legislative vacuum in the field so that it is reoccupied with executive power. In other words, despite such repeal, the field continues to be occupied by law namely the 2011 Act.</b></p><p><b>(iii) Added to the above, the affairs of Mutt being inter alia governed by the registered Trust Deed, section 92 of CPC, becomes invocable, the Mutt in question admittedly answering description of the Trust of the kind in the said provision. It is the specific case of Petitioners in general and Mutt & its Pontiff in particular that the fact matrix which eventually resulted into the appointment of Administrator, would indisputably take the matter to the precincts of this provision and therefore, a representative suit is maintainable. Mr.Patil repeatedly said that if anybody has grievance arising out of an extraordinary situation like the one at hands because of Pontiff being in judicial custody, suit remedy with leave of the court can be resorted to. This section in so many words enables even the office of AG to maintain such a suit sans sanction. The Apex Court in SYED MOHD. SALIE LABBAI VS MOHD. HANIFS28, observed that when there is allegation of breach of any express or constructive trust created for a public charitable or religious purpose like the Petitioner-Mutt or where the directions of the Court are necessary for the administration of such a trust, suit of the kind is maintainable. What is enacted by the Parliament in section 92 of CPC thus occupies the field and as a consequence, the executive power otherwise availing to the State under Article 162, is denuded. Therefore the impugned order is without jurisdiction.</b></p><p><b>(G) AS TO ARGUMENT OF GRAVE CONSEQUENCES OF QUASHING THE APPOINTMENT OF ADMINISTRATOR:</b></p><p><b>(i) Learned AG appearing for the State and the learned Sr. Advocate appearing for the Administrator eo nomine, contended that when Pontiff of a Mutt is in custody, he will not be in a position to discharge his temporal duties relating to administration & management of the Mutt and the educational institutions run under its aegis; the Mutt having wealth of more than a thousand crore rupees, as of prudence & necessity, requires a full time Administrator; the government having given the land and huge public funds for the benefit of Mutt, has a legitimate say in the matter of administration & management of at least non-secular activities of the Mutt and of the institutions. Both they vividly highlight the consequences of absence of Pontiff owing to detention. Learned Sr. Advocate appearing for the Petitioners does not agree with the proposition of having an Administrator appointed by the government, that too in gross violation of principles of natural justice. He submitted that when the Legislature intends no interference in the affairs of Mutt, be it religious or temporal, the argument of ‘undesirable consequences’ does not avail to the State. He hastens to add that law should be obeyed even if heavens do fall.</b></p><p><b>(iii) It hardly needs to be stated that Mutts & temples are central to ‘Hindu Dharma in its generic sense’ and to its offshoot religions, as well. They play a pivotal role in the lives of people in several ways. Mutts and their parampara contribute in a great measure to the preservation of civilizational values, too. As already mentioned above, they also undertake activities that would benefit the public at large. Normally, how a mathaadhipati is to be appointed is a matter governed by the customs & traditions obtaining in the Mutt. In the absence of Pontiff because of death, disease or detention, what should happen is ordinarily be left to the devotees or the prominent members of the community concerned, should statute or some instrument of law does not provide for the solution. There is no such statute, and the Trust Deed is silent about the matter. It is nobody’s case that the devotees or the prominent members of the community will not be able to take a call in the matter. No explanation is offered from the side of State as to why the office of AG was not asked to institute a representative suit under section 92 of CPC, either. It is true that it is open to the devotees or the members of Veeraishaiva/Lingayat community to avail the remedy of representative suit.</b></p><p><b>(iv) The 1997 Act as amended in 2011 which aspect is discussed in detail supra, the Legislature intends to insulate the Mutts from State interference, be it administrative functions, religious rites or other temporal activities. If that be so, it is un-understandable to say the least as to how an Administrator can be appointed by government of the day. An argument to the contrary cannot be sustained without imperilling the constitutional guarantees availing to religious denominations & Pontiffs; such an arguments and it also runs counter to a seventy year jurisprudence, as developed by the Apex Court since SHIRUR MUTT. The State and its functionaries should realise that by their very nature they can not be a can not be panacea to all the evils in society. As of necessity, it should leave religious institutions to solve their problems on their own by appropriate measure, such as community mediation/conciliation or judicial process, of course subject to all just exceptions. The fact that the government has allotted some land to the Mutt and handed some funds, per se would not justify its interference, especially when the terms & conditions subject to which that has been done, do not authorizing action of the kind. Had the government indicated its intent to condition the grant of such a bounty, the Mutt would have had an opportunity to decline the offer.</b></p><p><b>In the above circumstances, I make the following:</b></p><p><b>(i) The question Nos.1, 2 & 3, as framed at paragraph 6, having been answered in the negative, these Petitions succeed and a Writ of Certiorari, therefore, issues quashing the impugned order whereby the Government had appointed the Administrator;</b></p><p><b>(ii) In the peculiar circumstances of the case, the Administrator shall continue for a short period of six weeks only with no power to take any major decision that would have repercussions beyond the said period and, that he shall manage only the day to day affairs;</b></p><p><b>(iii) The above interim arrangement has been made so that the devotees of the Mutt and the prominent members of the community concerned would pool their wisdom & virtue to devise an appropriate plan of action for the due administration & management of the affairs of Mutt and the educational institutions run under its aegis, on a war footing;</b></p><p><b>(iv) The option of the devotees and community members to seek relief/redressal in terms of Section 92 of CPC is not foreclosed, arguably, their being a case for that end, and that all contentions in that regard are kept open; Nothing observed in this order shall cast its shadow on such proceedings, particularly when the rights of Mutt & its Pontiff have been adjudged in the light of constitutional guarantees vis-à-vis government, and, none else.</b></p><p><b>(v) This Court places on record that, it is conscious of the practical difficulties the Mutt and its institutions have been put to because of the Pontiff’s continuance in judicial custody and that his meditate administration through delegates/agencies, is a poor solace & substitute for the effective administration and management, to say the least.</b></p><p><b>(vi) Costs made easy. </b></p>', '5964eb4979f542671c975ed2e6fc8d7c.jpg', '3ca965d38b4629672583d3ac0bd915e5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-23', 1, '', '', '2023-05-23 17:25:40', '2023-05-23 17:26:28'),
(2947, 'cePvXw7TniYv1dl77UHc0KAhD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Unstamped/insufficiently stamped arbitration agreement cannot be acted upon unless impounding and payment of the requisite duty is followed. Supreme Court reiterates. Effect on Section 9 lept open. ', '<p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">M/S. N.N. GLOBAL MERCANTILE PRIVATE LIMITED vs&nbsp;</span>M/S. INDO UNIQUE FLAME LTD. &amp; ORS.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>CIVIL APPEAL NO(S). 3802-3803 OF 2020 decided on 25 April 2023.<br></b></p><p><b>101. The interplay of the Evidence Act, the Stamp\r\nAct and the Registration Act is to be understood as\r\nfollows:<br>In regard to an instrument, which is executed in\r\nIndia and which is liable to be stamped, then, stamping\r\nhas to take place before or at the time of the execution\r\nof the instrument. It is after the instrument is\r\nstamped that it can be presented for registration.\r\nSection 17 of the Registration Act provides for\r\ndocuments, which are compulsorily registrable. Section\r\n18 permits registration of other documents at the\r\noption of the persons concerned. An instrument, which\r\nis registered, necessarily involves, it being duly\r\nstamped before it is so registered. This result is&nbsp;inevitable, having regard to the impact of Section 35\r\nof the Stamp Act. In fact, an instrument, which is not\r\nduly stamped and which is produced before the\r\nRegistering Authority, would be liable to be impounded\r\nunder Section 33 of the Stamp Act. What Section 74 read\r\nwith Section 76 of the Evidence Act provides for is,\r\nthe issuance of certified copies. Certified copies can\r\nbe issued only in respect of public documents. Section\r\n62 inter alia of the Evidence Act defines primary\r\nevidence as the document itself produced for the\r\ninspection of the court. Section 63 of the Evidence Act\r\ndefines ‘secondary evidence’ as meaning and including,\r\ninter alia, ‘certified copies under the provisions\r\nhereinafter contained’. The provisions ‘hereinafter\r\ncontained’ referred to in Section 63 must be understood\r\nas Section 74 read with Section 76. A certified copy\r\ncan be given, no doubt, of ‘public records kept in any\r\nState of private documents’. Thus, if a sale deed\r\nbetween two private parties comes to be registered,\r\ninstead of producing the original document, a certified\r\ncopy of the sale deed, may qualify as secondary\r\nevidence and a certified copy can be sought for and&nbsp;issued under Section 76 of the Evidence Act. The\r\nexpression ‘public records kept in any State of a\r\nprivate document’ in Section 74 is not confined to\r\ndocuments, which are registered under the Registration\r\nAct. A private document, which is kept as a public\r\nrecord, may qualify as a public document. What is\r\nimportant is, to bear in mind that in view of Section\r\n33 of the Stamp Act, an instrument, which is not duly\r\nstamped, if it is produced before any Public Office,\r\nit would become liable to be impounded and dealt with\r\nas provided in the Stamp Act. Let us assume a case\r\nwhere a contract, which contains an Arbitration Clause,\r\nis registered. As we have noticed, if the contract, in\r\nwhich the Arbitration Clause is contained, is exigible\r\nto stamp duty, then, registration cannot be done\r\nwithout the instrument being duly stamped. It is\r\nkeeping the same in mind that in SMS Tea Estates\r\n(supra), this Court held that, ‘if what is produced is\r\na certified copy of the agreement/contract/instrument,\r\ncontaining the Arbitration Clause, it should disclose\r\nthat the stamp duty has been paid on the original’.\r\nThis again is for the reason that a certified copy is&nbsp;a true copy of the document. The Officer, who certifies\r\nthe document, must be the person having the custody of\r\nthe public document. The public document in the case\r\nof public records of private documents, in the case of\r\na registered document, would necessarily involve the\r\ndocument being stamped before registration. The Scheme\r\nframed by the Chief Justice, permits the production of\r\na duly certified copy to relieve the party of the burden\r\nof producing the original but what is contemplated is\r\nonly the production of the certified copy, which duly\r\ndiscloses the fact of payment of stamp duty.</b></p><p><b>108. As found in SMS Tea Estates, in view\r\nof the fact that there is a bar to the use of an\r\ninstrument, which is not stamped or insufficiently\r\nstamped for any purpose (unlike Section 49 of the\r\nRegistration Act, which allows an unregistered document\r\nto be used to prove a collateral transaction), an\r\nunstamped instrument, in which, an Arbitration Clause\r\nis part of, cannot be allowed to be used, as it would\r\nbe allowing the instrument to be used to establish a\r\ncollateral transaction. This is proceeding on the basis&nbsp;that an Arbitration Agreement is a collateral term and\r\nmay have a distinct existence, separate from the main\r\nagreement.</b></p><p>\r\n</p><p><b>109. The view taken in SMS Tea Estates as\r\nfollowed in Garware and by the Bench in\r\nDharmaratnakara Rai Bahadur Arcot Narainswamy Mudaliar\r\nChattram and other Charities v. Bhaskar Raju and\r\nBrothers and others as to the effect of an unstamped\r\ncontract containing an Arbitration Agreement and the\r\nsteps to be taken by the Court, represent the correct\r\nposition in law as explained by us hereinbefore. N.N.\r\nGlobal&nbsp; was wrongly decided, when it held to the\r\ncontrary and overruled SMS Tea Estates and\r\nGarware.</b></p><p><b>110. An instrument, which is exigible to stamp\r\nduty, may contain an Arbitration Clause and which is\r\nnot stamped, cannot be said to be a contract, which is\r\nenforceable in law within the meaning of Section 2(h)&nbsp; of the Contract Act and is not enforceable under\r\nSection 2(g) of the Contract Act. An unstamped\r\ninstrument, when it is required to be stamped, being\r\nnot a contract and not enforceable in law, cannot,\r\ntherefore, exist in law. Therefore, we approve of\r\nparagraphs-22 and 29 of Garware . To this\r\nextent, we also approve of Vidya Drolia ,\r\ninsofar as the reasoning in paragraphs-22 and 29 of\r\nGarware is approved.&nbsp;</b></p><p><b>111. The true intention behind the insertion of\r\nSection 11(6A) in the Act was to confine the Court,\r\nacting under Section 11, to examine and ascertain about\r\nthe existence of an Arbitration Agreement.</b></p><p><b>112. The Scheme permits the Court, under Section 11\r\nof the Act, acting on the basis of the original\r\nagreement or on a certified copy. The certified copy\r\nmust, however, clearly indicate the stamp duty paid as\r\nheld in SMS Tea Estates. If it does not do so,\r\nthe Court should not act on such a certified copy.</b></p><p><b>113. If the original of the instrument is produced\r\nand it is unstamped, the Court, acting under Section 11, is duty-bound to act under Section 33 of the Stamp\r\nAct as explained hereinbefore. When it does so,\r\nneedless to say, the other provisions, which, in the\r\ncase of the payment of the duty and penalty would\r\nculminate in the certificate under Section 42(2) of the\r\nStamp Act, would also apply. When such a stage arises,\r\nthe Court will be free to process the Application as\r\nper law.</b></p><p><b>114. An Arbitration Agreement, within the meaning\r\nof Section 7 of the Act, which attracts stamp duty and\r\nwhich is not stamped or insufficiently stamped, cannot\r\nbe acted upon, in view of Section 35 of the Stamp Act,\r\nunless following impounding and payment of the\r\nrequisite duty, necessary certificate is provided under\r\nSection 42 of the Stamp Act.&nbsp;</b></p><p><b>115. We further hold that the provisions of\r\nSections 33 and the bar under Section 35 of the Stamp\r\nAct, applicable to instruments chargeable to stamp duty\r\nunder Section 3 read with the Schedule to the Stamp\r\nAct, would render the Arbitration Agreement contained\r\nin such instrument as being non-existent in law unless\r\nthe instrument is validated under the Stamp Act. </b></p><p><b>116. In a given case, the Court has power under\r\nparagraph-5 of the Scheme, to seek information from a\r\nparty, even in regard to stamp duty.\r\n</b></p><p><b>117. We make it clear that we have not pronounced\r\non the matter with reference to Section 9 of the Act.\r\nThe reference to the Constitution Bench shall stand\r\nanswered accordingly.\r\n</b></p><p><b>Majority view by&nbsp;<br>Justice K. M. Joseph<br>Justice Aniruddha Bose<br>Justice C. T. Ravikumar&nbsp;</b></p><p><b>Minority view by&nbsp;<br>Justice\r\nHrishikesh Roy<br>Justice Ajay Rastogi</b><br></p>', '45be160f6570f7c9370ec17abc459726.jpg', '7ffb0e928946b65882edb0643860608f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-26', 1, '', '', '2023-04-26 17:22:11', '2023-04-26 17:33:41'),
(2948, 'RoyFyKpPp7rcOKBWYaz8MwnTj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Police Act. Mere apprehension of the police is not enough to pass an order of externment. There must be grounds and adequate materials to show that there is danger based upon credible materials. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K.V. Nagaraj Vs The Sub Divisional Magistrate and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Revision Petition 330 of 2023 decided on 5 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>This criminal revision petition under Section 397 read with Section 401 of Cr.P.C. is filed by the accused challenging the order dated 20.02.2023 passed by the competent officer in<span style=\"white-space: pre;\">	</span>proceedings bearing No.MAG CR:64/22-23 in exercise of his power under Sections 55 and 56 of the Karnataka Police Act, 1963 (‘the KP Act’ for short).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>6.<span style=\"white-space: pre;\">	</span>A perusal of Section 56 of the KP Act would go to show that the power under the said section can be invoked by the competent Authority against the person, who has been convicted at any time either before or after the commencement of the KP Act, as provided under Sub- Sections (a) to (h) of Section 56 of the KP Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>7.<span style=\"white-space: pre;\">	</span>In the present case, undisputedly, the petitioner as against whom the order under Section 56 is passed is not convicted at any point of time as provided under the said provision of law. Further, it is seen that the competent authority has passed the order on the basis of the police report, without holding a detailed enquiry and without compliance of the requirement under Section 58 of the KP Act, the impugned order of externment is passed.&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>8.<span style=\"white-space: pre;\">	</span>The law in this regard has been laid down by this Court in Crl. R.P. No.1018/2018 and Crl. R.P. No.100220/2016, wherein this Court has held that mere apprehension of the police is not enough under Section 56 of the KP Act for passing an order of externment and there has to be grounds and adequate materials to show that there is danger based upon credible materials collected by the police officer sufficient enough for the competent authority to come to the conclusion that the person against whom the proceedings are initiated is so desperate and dangerous that his mere presence in the locality or any part thereof is hazardous to the community and its safety. Such materials are not forthcoming in the present case.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>9.<span style=\"white-space: pre;\">	</span>Under the circumstances, I am of the considered view that the impugned order passed by the competent authority in the proceedings bearing No.MAG CR:64/22-23 dated 20.02.2023 in exercise of his power under Sections 55 and 56 of the KP Act, cannot be sustained and accordingly, the following:&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>i.<span style=\"white-space: pre;\">	</span>The criminal revision petition is allowed.</b></p>', 'ce8264ab2385e56ba7fc261a03f2aeb9.jpeg', 'bb724af39c0fdf0da98353374183c697.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-28', 1, '', '', '2023-04-28 14:18:13', '2023-04-28 14:18:13');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2950, 'kH1vqCHqMdMAlj6SfSaNprNaX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments. If the payee or holder of the cheque made alteration with the consent of drawer on cheque, such alteration cannot be a ground to resist right of payee or holder thereof. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>D.B. Jatti Vs M/S Jamnadas Devidas.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.R.P 964 of 2019 decided on 12 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Rajendra Badamikar<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The brief factual matrix leading to the case are that, the complainant has lodged a complaint under Section 200 of Cr.P.C. against the accused/revision petitioner herein for the offence punishable under Sections 138 and 142 of the Negotiable Instruments Act, 1881 (‘N.I. Act’ for short). It is the contention of the complainant that for the purpose of running business of M/s. Jatti Projects Inc., which is a proprietary firm, the accused has borrowed a sum of Rs.10.00 Lakhs by executing On-demand Promissory Note on 19.04.2007 and he has also agreed to repay the same with interest as and when demanded. It is also alleged that the said amount was paid by the complainant through a cheque bearing No.891164 dated 07.04.2007 drawn on M/s. The Catholic Syrian Bank Limited, Ghandhinagar Branch, Bengaluru. In discharge of the said debt, the accused has issued a cheque for Rs.10.00 Lakhs and also promised to pay the interest on later date. It is also alleged that the accused has paid interest from 09.04.2007 till 09.01.2009 and he is required to pay interest due from 10.01.2009 and he has issued the cheque for Rs.10.00 Lakhs towards part payment of liability.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>After having heard the arguments and after perusing oral as well as documentary evidence, now the following point would arise for my consideration:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i> Whether the judgment of conviction and order of sentence passed by the trial Court and confirmed by the appellate Court are erroneous and arbitrary, and suffers from any infirmity so as to call for any interference by this Court?</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>The complainant has filed a complaint under Section 138 of N.I. Act and he is the holder of the cheque in due course. The disputed cheque is at Ex.P1 and signature of the accused on the said cheque is undisputed. It is also admitted that the said cheque is dishonoured. Since the signature on the cheque is admitted, the presumption under Sections 139 and 118 of N.I. Act is in favour of the complainant. The accused is required to rebut the said presumptions.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>Learned counsel for respondent/complainant has placed reliance on an unreported judgment of the Apex Court in Crl. A. Nos. 1223-1235/2022 [P.Rasiya Vs. Abdul Nazer and Another], wherein the Apex Court has reiterated the principles that, once it is proved that the cheque was issued towards legally enforceable debt and once it is established that the cheque belongs to the accused and it bears his signature, drawing presumption under Section 139 of the N.I. Act is mandatory, unless contrary is proved. Hence, drawing presumption under Section 139 of N.I. Act is mandatory and in the instant case, the accused has not placed on records any evidence to rebut the said presumption and he has also taken inconsistent and contrary defences in this regard. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space:pre\">	</span>In view of these facts and circumstances, it is evident that the complainant has discharged his burden of proving the fact that the cheque under Ex.P1 is issued towards legally enforceable debt. The accused has failed to rebut the said presumption available in favour of the complainant. Both the Courts below have appreciated all these aspects in detail and analysed the oral as well as documentary evidence in accordance with law. No illegality or infirmity is found with the judgment of conviction and order of sentence passed by the trial Court and confirmed by the Appellate Court. Both the Courts below have rightly convicted the accused and as such, the impugned judgment of conviction and order of sentence does not warrant any interference by this Court. As such, the point under consideration is answered in the negative and as such, the petition being devoid of any merits, needs to be dismissed.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space:pre\">	</span>The petition is dismissed.</b></font></span></p>', '6d32a5e160813ecc3dc997b90bdc97a4.JPG', '7054765b904c733c10dccd5dd12a8fdd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-01', 1, '', '', '2023-04-29 11:04:32', '2023-05-01 07:19:46'),
(2951, 'OmixS2OMoTfqrljhC59QMaM87', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Speedy trial in NIA cases guarantees the fundamental right under Article 21”. Karnataka High Court directs establishment of three more Special to ensure speedy trial and disposal of the NIA cases. ', '<p><font face=\"Verdana, sans-serif\"><b>SHOHEB ALI @ SHAJID ALI and others vs THE STATE BY KARNATAKA.</b></font></p><p><font face=\"Verdana, sans-serif\"><b>Criminal Appeal 72 of 2023 decided on 20 April 2023.</b></font></p><p><font face=\"Verdana, sans-serif\"><b>Justice B Veerappa and Justice Venkatesh Naik T. </b></font></p><p><font face=\"Verdana, sans-serif\"><b>15. Having heard learned counsel for the parties and the material available on record, the point that would arise for our consideration in these criminal appeals is:</b></font></p><p><font face=\"Verdana, sans-serif\"><b>\"Whether the appellants/accused have made out a case to interfere with the impugned order passed by the Special Court and to grant bail in their favour in the facts and circumstances of the case?\"</b></font></p><p><font face=\"Verdana, sans-serif\"><b>In the instant case, the prosecution has alleged that, the appellants and other accused persons were involved in commission of offences punishable under the provisions of UA(P) Act and PDPP Act. </b></font></p><p><font face=\"Verdana, sans-serif\"><b>12.The National Integration Council appointed a committee on National Integration and Regionalisation to look into, inter alia, the aspect of putting reasonable restrictions in the interests of the sovereignty and integrity of India. Pursuant to the acceptance of recommendations of the Committee, the Constitution (16th amendment) Act, 1963 was enacted to impose, by law, reasonable restrictions in the interest of the sovergnity and integrity of India.  In order to implement the provisions of 1963 Act, the Unlawful Activities (Prevention) Bill was introduced in the Parliament. The object of the UA(P) Act to impose by law reasonable restrictions in the interest of the sovereignty and integrity of India, on the, -i)    freedom of speech and expression ii)    right to assemble peaceably and without arms; and iii)   right to form associations or unions.</b></font></p><p><font face=\"Verdana, sans-serif\"><b>22.In this case, there is no allegation against accused persons of committing any terrorists act. Chapters IV and VI of UA(P) Act contain provisions for forfeiture of proceeds of terrorism with which we are not concerned. In the instant case, the main allegation against the accused persons is, they were actively involved in unlawful activities and caused damage to the public property and also assaulted public servants while they were in discharge of their public duty.</b></font></p><p><font face=\"Verdana, sans-serif\"><b>31.Therefore, while deciding a bail petition filed by an accused against whom offences under UP (A) Act and PDPP Act have been alleged, the Court has to consider whether there are reasonable grounds for believing that the accusation against the accused is prima facie true. If the Court is prima facie satisfied after examining the material on record that there are no reasonable grounds for believing that the accusation against the accused is true, then the accused is entitled for bail. Thus, the scope of inquiry is to decide whether prima facie material is available against the accused of commission of the offences alleged under UP (A) Act and PDPP Act. There must be reasonable grounds for believing that the accusation against the accused is prima facie true. However, the Court while examining the issue of prima facie case as required by sub-section (5) of Section 43D is not expected to hold a mini trial. The Court is not supposed to examine the merits and demerits of the evidence. If a charge sheet is already filed, the Court has to examine the material forming a part of charge sheet for deciding the issue whether there are reasonable grounds for believing that the accusation against such a person is prima facie true. While doing so, the Court has to take the material in the charge sheet as it is.</b></font></p><p><font face=\"Verdana, sans-serif\"><b>40. On perusal of the impugned order passed by the learned Sessions Judge rejecting the bail applications of the accused under the provisions of Section 439 of the Code of Criminal Procedure and on perusal of the entire material on record including CD and the charge sheet materials, it is clear that the accused persons were involved in heinous offences of creating religious disharmony amongst the society leading to disturbance of public peace and tranquillity.</b></font></p><p><font face=\"Verdana, sans-serif\"><b>42. It is also well established principles of law that while considering a bail application, Court has to consider the nature of the offences, circumstances in which the offence is committed, position and status of the appellants with reference to the victim and witnesses; likelihood of fleeing away from justice, of repeating same offences by the appellants, of tampering with witnesses, character and antecedents of the appellants. Further, the law is well settled that while disposing of bail petition Court need not scan the prosecution papers and hold a mini trial.</b></font></p><p><font face=\"Verdana, sans-serif\"><b>50.<span style=\"white-space:pre\">	</span>As on today, for the entire State, Government has established only one Special Court at Bangalore to deal with the cases under National Investigation Agency Act, 2008. By careful perusal of the statistical data, it clearly depicts that NIA cases which are more than 8 to 9 years old are pending as stated supra. It is relevant to state at this stage that today, the judiciary is the repository of public faith. It is the trustee of the people. It is the  last hope of the people. After every knock at all the doors fail  people approach the judiciary as the last resort. It is the only temple worshipped by every citizen of this nation, regardless of religion, caste, sex or place of birth. Because of the power he wields, a judge is being judged with more strictness than others. It is the duty of the Court to ensure that timely justice given to those who approach the Court with great faith. It is high time for the State Government to fulfil the scope and object of the UA(P) Act  and ensure speedy trial and disposal by constituting/establishing three more Special Courts for trial of NIA cases in other revenue Divisions of Karnataka viz., Mysore Division, Belagavi Division and Kalburgi Division. The present Special Court at Bengaluru assigned with the work of trial of NIA cases alongwith Sessions and other cases. If the NIA cases are less in the newly proposed Special Courts, the said Courts may be assigned with Sessions and other cases as has been done in respect of Special Court at Bangalore established for speedy disposal of NIA cases. If the newly proposed Special Courts are not constituted/established, one Special Court in the entire State would be overburdened and will lead to inordinate delay in trial and disposal of NIA cases, which is against the constitutional mandate as contemplated under Articles 14 and 21 of the Constitution of India.</b></font></p><p><font face=\"Verdana, sans-serif\"><b>53. In view of the above, we pass the following order:</b></font></p><p><font face=\"Verdana, sans-serif\"><b>i) Criminal Appeals are dismissed as devoid of any merit.</b></font></p><p><font face=\"Verdana, sans-serif\"><b>iv) We hereby recommend the State Government to constitute/establish three Special Courts for trial of NIA cases in Mysore Division, Belagavi Division and Kalburgi Division within a period of six months from the date of receipt of copy of the order to ensure speedy trial and disposal of the NIA cases in order to access justice for the needy and to fulfill the scope and object of the of the UA(P) Act.</b></font></p><p><font face=\"Verdana, sans-serif\"><b><br></b></font></p><p><br></p>', 'b865169c01de1c0c2d98b24bd8b43cd4.jpeg', 'af81f70d217f2b6d35cff4af2b7942a9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-04-29', 1, '', '', '2023-04-29 11:11:54', '2023-04-29 16:52:39'),
(2956, 'UCEQ7YmlB4HlEReX0r7fq0pK5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Public Trust. Decision on application under section 92 CPC shall be taken by looking into only the plaint averments. Application can be opposed only with reference to plaint averments only. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Srimad Ujjaini Saddharma and others Vs S.S. Patil and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 400 of 2021 decided on 13 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>The two revision petitions under section 115 of Code of Civil Procedure (‘CPC’ for short) and the writ petition under Article 227 of the Constitution of India challenge the correctness of the order dated 21.10.2021 passed by the Principal District Judge, Chitradurga, allowing Misc.Case.No.169/2021, filed under section 92 of CPC.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>Now the question is whether the order under section 92 CPC is an administrative order or judicial order. Sri. Anant Mandgi has placed reliance on the judgment of the Supreme Court in B.S.Adityan and of High Court of Madras in G.R. Govindarajulu. Learned Single Judge of the High Court of Madras followed the Bench decision in the case of R.Kannan Adityan and four others Vs. B.S. Adityan and six others [1996(2) L W 364), to hold that an order passed under section 92 CPC is an administrative order. It appears that this judgment of the Division Bench was appealed to the Supreme Court where the argument was put forth on the same lines. If the judgment of the Hon’ble Supreme Court is read, it may be stated with great respect that the Supreme Court has not laid down any ratio that an order on an application under section 92 is administrative in nature. In para 4 of the judgment, different views expressed by some of the High Courts have been noted. Therefore the case of B.S. Adityan does not help Sri. Anant Mandgi.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>The power that the Advocate General used to exercise before amendment was brought to section 92 in the year 1976 was no doubt purely administrative, but its further view that the power was delegated to court by virtue of amendment is difficult to be accepted. The amendment conferred power on the court to take a decision on an application under section 92 CPC.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>Then section 104 CPC provides for an appeal if leave under section 92 is refused. It is the judicial order which can be questioned in an appeal made under section 104 CPC. If leave is granted, it cannot be questioned in appeal, nevertheless, it may be stated with reference to section 104 CPC and the judgment of the Supreme Court extracted above that while deciding an application, the court is bound to examine the averments made in the plaint with the objective of ascertaining whether those averments fall within the ambit of section 92 CPC. Either to grant leave or not, the court has to make same exercise and therefore in my considered view an order granting leave under section 92 CPC is a judicial order.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>The legal position that a revision is maintainable under section 115 CPC is made clear by the Hon’ble Supreme Court. Further, if revision petition is allowed, the applicant under section 92 CPC cannot proceed further, and thus the proceeding will come to an end. This analogy fits into scope of section 115 CPC. In this view, a party aggrieved by grant of leave under section 92 can question it under section 115 CPC.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>Then the next question is whether the court below has erred in granting leave. It was argued by Sri. Ashok Haranahalli and Sri. Udaya Holla that the contents of plaint do not disclose a dispute relating to charitable trust. The first relief claimed in the plaint is to declare the trust deed dated 27.7.1990 null and void. This being the main relief, section 92 CPC is not applicable; and such kind of a relief can be claimed in a regular suit only. They also argued that all the educational institutions mentioned in the plaint schedule belong to fifth defendant society; they are not trust properties and therefore it is clear that suit is not brought in respect of properties of trust. They also argued that as can be made out from the plaint, one Dr. S. Siddaiah was nominated as ‘Uttaradhikari’ of the first defendant mutt, but he was not anointed. His personal grievance does not permit a suit to be brought under section 92 as has been held by the Supreme Court in the case of Swami Paramatmanand Saraswati And Others Vs. Ramji Tripathi and Others [(1974) 2 SCC 695]. The plaint averments are so clear that none of the reliefs claimed in the plaint falls within the ambit of section 92 CPC, and in this view the impugned order needs to be set aside. Sri. Shivaprasad Shantanagoudar submitted that the society was formed in the year 1923, i.e., much before trust was created. The society has been managing all the educational institutions, since the society is an independent entity, the court below should not have granted leave.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space: pre;\">	</span>It is a settled principle that decision on application under section 92 CPC has to be taken by looking into averments found in the plaint. Even if the defendants want to oppose, they must do so with reference to plaint only, and they cannot introduce their defence on the application.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space: pre;\">	</span>Now if the impugned order is seen, it cannot be said that the court below has passed a perfunctory order. It has examined the plaint in the light of settled legal principles. Though the plaint is very narrative and looks like a written argument, its contents do disclose that the defendant, which is a mutt, is headed by the third defendant. The first defendant mutt is meant for the people belonging to a particular religious order, and it is a constructive public trust for charitable and religious purposes. If the first defendant itself is a trust, a doubt in the conduct of third defendant in creating an express trust by means of a trust deed arises. The trust deed, which is produced along with plaint, shows third defendant creating a trust in respect of properties which do not appear to be belonging to him personally. As a pontiff or Mathadhipati of the first defendant trust he holds all the properties of the mutt in the capacity of trustee only, and if he, in that capacity, created another trust, it gives scope for looking at his conduct with askance. If he would execute a sale deed in favour of a third party, again the allegations made against him would get strengthened. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space: pre;\">	</span>It is true that the mention of the name of Dr. S. Siddaiah in the plaint creates an impression that he might be behind institution of the suit. But mention of his name is just a surplusage, if he is really involved in the suit to vindicate his personal right, it can be thrashed out only after full fledged trial. At this stage, looking into the actual averments made in the plaint, an inference can be drawn that it is with a view to protecting the mutt and its properties, and to frame a scheme for its management, suit has been brought under section 92 CPC. Merely for the reason that declaration as to nullity of trust deed created by third defendant is sought, it cannot be said that section 92 CPC is not applicable, for the other reliefs claimed in the plaint fall within the ambit of that section. The cause of action for the suit has to be deciphered by reading the plaint as a whole, not with reference to a particular paragraph in the plaint. Since I find the plaint being in conformity with section 92 CPC, the trial court has rightly granted leave. For these reasons, I do not find good ground to interfere with the impugned order. The revision petitions and the writ petition are dismissed.</b></font></span></p>', '267c91e65ae9373e899762d0aed76892.jpeg', 'dbb59500f48caa859fb21a7c43d09e36.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-03', 1, '', '', '2023-05-01 08:50:46', '2023-05-03 07:29:44'),
(2974, '8ZS3iifszDWvbVxVQ95GYOAbj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cooperative society. Except meeting notice, supply of copy of the motion to the person against whom the no confidence motion is moved is not necessary. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nasiruddin Bhagwan Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 102307 of 2023 decided on 21 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.I. Arun.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space: pre;\">	</span>The petitioner is the President of the 4th respondent Co- operative Society. Respondents No.6 to 14, who are the Directors of the Society, have moved a no-confidence motion against the petitioner. Aggrieved by the same, the present writ petition is filed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2.<span style=\"white-space: pre;\">	</span>The case of the petitioner is that, respondents No.6 to 14 had moved a no-confidence motion against the petitioner on an earlier occasion also and a meeting was called on 09.03.2023. However, this Court in W.P. No.101470/2023, set aside the same on the ground that the same was not held in accordance with law. However, liberty was reserved to respondents No.6 to 14 to move the no-confidence motion again. Subsequent to the order, at the behest of respondents No.6 to 14, no-confidence motion has been moved against the petitioner.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>Firstly, with regard to the requirement under Rule 14-AKK(3) of the Rules,1960, once the Registrar receives a communication from the Chief Executive of the Society, he shall, within seven days, authorize an Officer not below the rank of Senior Inspector of Cooperative Societies , to preside over the meeting of the Board called to consider the no confidence motion and conduct the proceedings.   Not doing so within seven days does not violate the right of the person against whom the no confidence motion is moved. The persons who have moved the no confidence motion, get a cause of action against the Registrar. Thus, the petitioner cannot take shelter under the said provision. In the instant case, there is a delay of couple of days on part of the Registrar to act. It does not give any cause of action to the petitioner. Hence, the said argument is not acceptable.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>With regard to supply of notice of meeting to the petitioner to consider the motion of no confidence not being enclosed with the no confidence notice and copy of the proposed motion duly signed by 1/3rd of the members, the petitioner contend that principles of natural justice have been violated. It is submitted that the petitioner should know as to whether 1/3rd of the members have indeed signed the no confidence motion against him and if yes, who are all those members, so that he can approach them within the 15 days time and convince them to withdraw the no confidence motion against him. Mere sending him a notice stating that no confidence motion is moved against him and the meeting is scheduled on a particular date, violates the principles of natural justice.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>Per contra, the respondents submit, that the provisions of Rule 14-AKK of Rules, 1960 does not contemplate supply of the notice of no confidence and the copy of the motion to be given to the person against whom the no confidence motion is moved and it contemplates only supply of the notice of meeting, which has been done in this case. It is submitted that the provisions of Rules, 1960 is pari materia with the provisions of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 and while interpreting the provisions, this Court in the case of Ramappa Vs. Assistant Commissioner Lingsur and Another reported in ILR 2006 KAR 3364, in paragraph 3 has held as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>Relevant portion of Rule 3 of the said Rules reads thus: “Rule 3-Motion of No-confidence.-</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> (1) A written notice of intention to make the motion under the proviso to Section 49 shall be in Form I signed by not less than one-third of the total number of members together with a copy of the proposed motion shall be delivered in person by any two of the members signing of notice to the Assistant Commissioner. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(2)<span style=\"white-space:pre\">	</span>The Assistant Commissioner shall thereafter convene a meeting for the consideration of the said motion at the office of the Gram Panchayat on the date appointed by him which shall not be later than thirty days from the date on which the notice under Sub- rule (1) was delivered to him. He shall give to the members a notice of not less than fifteen clear days of such meeting in Form II: Provided that where the holding of such meeting is stayed by an order of a Court, the Assistant Commissioner shall adjourn the said meeting and shall hold the adjourned meeting on a date not later than thirty days from the date on which he receives the intimation about the vacation of stay, after giving to the members, after giving to the members a notice of not less than fifteen clear days of such adjourned meeting.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> (3)<span style=\"white-space:pre\">	</span>A notice is Form II shall be given to every member including the Adhyaksha and Upadhyaksha- </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(a)<span style=\"white-space:pre\">	</span>by delivering or tendering the said notice to such member; or ” x<span style=\"white-space:pre\">	</span>x<span style=\"white-space:pre\">	</span>x<span style=\"white-space:pre\">	</span>x </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>As could be seen from Rule 3(1) of the said Rules, No-confidence Motion shall be in Form I signed by not less than one-third members. The said motion along with a written notice of intention to make motion shall be delivered in person by any two of the members signing the motion to the Assistant Commissioner. Thus while giving requisition of No- confidence Motion those documents shall be furnished to the Assistant Commissioner. That does not mean that those documents also should be sent by the Assistant Commissioner to the person against whom the No- confidence Motion is moved, while sending the notice under Rule 3(2) of the Rules. Rule 3(2) of the Rules makes it amply clear that after receiving the no-confidence requisition, the Assistant Commissioner shall issue a notice of not less than 15 clear days of such meeting in Form II. Except sending the notice in Form II, the Assistant Commissioner is not obliged to send any other document to the person against whom the No- confidence Motion is moved. The notice Annexure-D issued under Rule 3(2) of the Rules is in accordance with the Form prescribed under the Rules. In the afore cited judgment also, this Court has not specifically held that notice issued in Form II shall accompany all the documents furnished along with no-confidence requisition. Even otherwise, there is no ambiguity in the language employed in Rule 3(1) and (2) of the Rules.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> and it is prayed that the writ petition may be dismissed.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>11.<span style=\"white-space:pre\">	</span>The judgment relied upon by the petitioner pertains to service jurisprudence. When an allegation is made against any person, he has to be made known of the allegations, so that he can defend himself. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>12.<span style=\"white-space:pre\">	</span>The instant case pertains to moving a no confidence motion by the members of the Board of a Cooperative Society against its President. Provisions of Rule-14AKK of the Rules, 1960 itself contains the principles of natural justice in the procedure mentioned therein and there is no requirement to read in any other activity that is required to be done by the Registrar. Board members of a Cooperative Society are limited in number. If a minimum of 1/3rd of the said members move a no confidence motion, they need not assign any reason for the same. If the Registrar is satisfied that the said no confidence motion is moved by the requisite number of members, he has to give 15 days clear notice to all the members including the person against whom the motion is moved. That gives sufficient time for a person like the petitioner to approach the Board members and know who are against him and he can convince them to the contrary, if he so desires. The fact that the petitioner has made only those who have moved the motion against him as respondents in the instant case and not other Directors, show the petitioner is aware as to who are against him. For that reason, in my opinion, none of the rights of the petitioner is violated. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>13.<span style=\"white-space:pre\">	</span>For the aforementioned reasons, the writ petition is hereby dismissed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '19bc4204643582a60405f06707e39edc.JPG', '11a987545047a608552870a30a0130e9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-23', 1, '', '', '2023-05-22 13:46:24', '2023-05-23 12:24:05');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3011, '7WkHgBZXZWIZPMLmRL8htCCb5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Succession Act. Partition of properties inherited under Section 8 will not change the nature of the properties to coparcenary. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Basavaraj Shivappa Meti and others Vs Premabai and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>RFA 1925 of 2006 decided on 11 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Anant Ramanath Hegde.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The suit in O.S.No.247/2000 is filed for the relief of partition and separate possession. There are five properties described in the plaint. Four are agricultural lands and one is the residential house. The suit is filed by the wife and children of late Kanaksingh.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.   One Govind Singh was the propositus. He died in 1972. After his demise, the properties were inherited by his wife Smt.Bhavani Bai, two sons i.e. Kanaksingh and Raghunath Singh and two daughters i.e., Smt Padma Bai and Smt Ambu Bai. The admitted facts would reveal that after the demise of Govind Singh, wife of Govind Singh and his two daughters did not make any claim in respect of the properties. The properties were mutated jointly in the names of two sons viz., Raghunath Singh and Kanak Singh. It appears that Raghunath Singh transferred his share in the properties in favour of his three sons in respect of one of the suit properties namely the property bearing Sy No.233. Later some of the properties were sold in favour of defendants 6 to 10. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>The wife and children of Kanaksingh have filed a suit for partition claiming share in the suit schedule properties on the premise that the properties in the hands of Kanaksingh are the ancestral properties and Kanaksingh   could not have sold the properties in favour of defendants 6 to 10.  The suit was contested by the purchasers. Raghunathsingh – the brother of Kanaksingh filed written statement opposing the claim. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>The trial Court has held that the properties could not have been sold and has granted a decree for partition in respect of properties declaring 5/6th share in the suit properties and has held that the alienation made by Kanaksingh in favour of defendants 6 to 10 are not binding on the plaintiffs.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>The following point would arise for consideration:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> “(i) Whether the property inherited under Section 8 of the Hindu Succession Act, 1956, acquires the characteristic of a co-paracenery property subsequent to the division of properties between two brothers vis-à-vis sons of the parties to the partition?”<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>In this case the Court has to consider the implication of Section 4 and Section 8 of the Act. Admittedly, the properties in the hands of Govindasingh were the self acquired properties. This fact is also established by producing the copy of ME.No.792 of Bardur village, Mundargi taluk in respect of Sy.No.233 and ME.No.1404 in respect of property bearing Sy.Nos.109 and 114/2 of Bardur village, Mundargi taluk.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>It is also forthcoming from the record that Raghunathsingh transferred some of the properties in the name of his children namely defendants No.3 to 5 during his life time. This document is not preceded by any registered document. However, there is no dispute over the fact that the children of Raghunathsingh were enjoying the properties by reason of arrangement made by their father Raghunathsingh. Thereafter, the properties are sold by Kanaksingh under registered sale deeds as indicated above. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>Now the suit if filed by the children of Kanaksingh and wife of Kanaksingh on the premise that they have acquired right in the properties by birth in the family. The question is whether they acquire right in the properties by birth in the family in the event the properties being inherited by their father under Section 8 of the Act. The position in this regard is well settled. Under Section 8 of the Act, the properties would devolve upon the heirs specified therein. The heirs specified under the schedule are the wife, mother, sons, daughters and children of pre-deceased sons and pre deceased daughters. The schedule does not recognise the children of living sons and living daughters as the heirs under the schedule. That being the position, the grand children do not acquire right over the property by reason of birth in the family. The position in this regard is well settled and the Supreme Court has reiterated this position ever since the declaration of law in the case of COMMISSIONER OF  WEALTH  TAX, KANPUR AND OTHERS Vs. CHANDER SEN AND OTHERS reported in (1986) 3 SCC 567 and subsequent judgments followed the ratio laid down in the aforementioned case. Under these circumstances, this Court is of the view that the properties acquired by Kanaksingh after the demise of his father Govindasingh are the properties which were acquired exclusively along with his brother Raghunathsingh.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>The next point for consideration is whether the partition between Kanaksingh and Raghunathsingh could change the characteristics of the properties as contented by Sri. Deepak S.Shetter, learned counsel for the respondents.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>It is required to be noticed that the Act is watershed movement when it comes to succession among Hindus. The Act deals with both testamentary as well as non-testamentary succession both in respect of coparcenary properties as well as self acquired properties. In addition to that, Section 4 of the Act has a far reaching consequence as the said provision has an overriding effect in respect of all matters for which the provision is made in the Act. As far as succession is concerned, there is no dispute that Sections 6, 8, 15 and 19 of the Act are the provisions governing the succession to the properties of a Hindu. From reading of these provisions, it is abundantly clear that the parliament in its wisdom wanted to do away with the concept of the birth right in respect of properties governed under Section 8 of the Act. This being the position, this Court is of the view that merely because Kanaksingh and Raghunathsingh effected a partition between themselves in respect of the properties which they inherited under Section 8 of the Act, the character of the property will not change. The nature of the property has to be determined with reference to the nature of acquisition after the demise of the holder of the property. If the holder of the property dies leaving behind the self acquired property, then the property would devolve under Section 8 of the Act. If the holder dies leaving behind his share in the coparcenary property, then Section 6 of the Act would come into picture provided other circumstances enumerated in Section 6 of the Act are met with.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 19.<span style=\"white-space:pre\">	</span>In the case on hand, admittedly, properties in the hands of Govindasingh were his self acquired properties and on his death, Section 8 of the Act gets triggered and the properties would devolve on his Class-I heirs exclusively. This being the position, subsequent act of partition if at all has taken place between his heirs, does not change the nature and the characteristics of the properties into coparcenary properties. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>It is well settled principle of Hindu Law that coparcenary is a creature of the statue and it cannot be created by way of an agreement. That being the position, the conduct of the parties will not change the characteristics of the property. For this reason, this Court is of the view that the Trial Court was in error in decreeing the suit of the plaintiffs on the premise that the plaintiffs had right in the properties of Kanaksingh, by reason of birth in the family. Accordingly, the judgment and decree of the Trial Court have to be set aside.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space:pre\">	</span>It is also required to be noticed that this appeal is filed by only the purchasers of the properties who purchased the properties from Kanaksingh and children of Raghunathsingh. As far as the remaining portion of the decree passed by the Trial Court is concerned, it is not challenged by the remaining defendants. Under the circumstances, this Court is of the view that the challenge has to be accepted only to the extent of challenge made before this Court and accordingly, the judgment and decree in respect of Item Nos.1, 3 and 4 [i.e. Item No.1 - Sy.No.109/1 measuring 2 acres 28 guntas, Item No. 3 - 233/1 measuring 7 acres 14 guntas and Item No.4 – 2332 measuring 10 acres 20 guntas] are set aside and judgment and decree passed by the Trial Court in respect of the remaining properties are not disturbed as it is not challenged.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>22.<span style=\"white-space:pre\">	</span>Since the appeal is in respect of the properties purchased by the appellants and not in respect of other schedule properties which are not purchased by the appellants, the notice to respondents No.8, 9 and 10 was dispensed with as respondents No.8, 9 and 10 did not question the sale transaction and did not claim any right over the properties purchased by appellants. In fact, they supported the case of the appellants before the Trial Court. As far as appeal against respondent No.7 is concerned, it was dismissed as abated.   It is also required to be noticed that respondent No.7 did not contest the claim of the plaintiffs and supported the case of the appellants. The respondents No.8, 9 and 10 are the heirs of deceased respondent No.7. Hence, the appeal does not abate as against the contesting respondents.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Appeal is allowed in part.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e9f9a093d97e70a2710c02895481c59b.JPG', '2452add0a224f7c799481fd9e6563681.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-31', 1, '', '', '2023-05-30 15:48:24', '2023-05-31 10:32:01'),
(3012, 'RnMAONIMRWfDBd00W2zhpRqc4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Essential Commodities Act. Initiation of criminal proceedings without making company an accused are not maintainable and are liable to be quashed. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sangappa Tenginakayi Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 100091 of 2023 decided on 11 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice J.M. Khazi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In this petition filed under Section 482 of Cr.P.C., the petitioner, who is arraigned as accused No.1 has challenged the initiation of criminal prosecution in C.C.No.325/2021 on the file of the Civil Judge and JMFC., Yelburga for the offences punishable U/sec.3 and 7 of Essential Commodities Act on the ground that company is not made a party and already criminal proceedings against accused No.2 are quashed in Criminal Petition No.103468/2022.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>Brief facts leading to filing of the present petition are that, petitioner is the owner of M/s Shri Vijaya Mahanteshwar Fertilizers, Yelburga engaged in sale of fertilizers manufactured by KPR Agro Chem Limited. Accused No.2 is the Compliance Officer of KPR Agro Chem Limited. On 16.10.2020, the Assistant Agriculture Director-complainant collected samples of 17:17:17 fertilizer manufactured by KPR Agro Chem Limited, from petitioner’s godown. On analyses, it was found to be of substandard quality and thereby petitioner has committed the offences punishable under Order 19(3) of Fertilizer (Control) Order r/w Sections 3 and 7 of the Essential Commodities Act, 1955.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>Admittedly, the charges leveled against the petitioner are that they have violated sections 3 and 7 of E.C. Act and Clause 19 of the Fertilizer (Control) Order, 1985.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>Section 10 of E.C. Act deals with the offence by Companies and it reads as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>10. Offences by companies.— (1) If the person contravening an order made under section 3 is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>Perusal of Section 10 of the E.C. Act, 1955 makes it evident that wherever contravention is by a Company, then every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. Therefore, petitioner is being made liable on account of he being an employee of Company in question and therefore, until and unless the company is arraigned as accused, the petitioner cannot be held responsible.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>In fact, the Hon’ble Apex Court in  Aneeta Hada  Vs.  Godfather  Travels  and  Tours  Private Limited1 while considering the offence committed by the company has held as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“53. It is to be borne in mind that Section 141 of the Act is concerned with the offences by the company. It makes the other persons vicariously liable for commission of an offence on the part of the company. As has been stated by us earlier, the vicarious liability gets attracted when the condition precedent laid down in Section 141 of the Act stands satisfied. There can be no dispute that as the liability is penal in nature, a strict construction of the provision would be necessitous and, in a way, the warrant. …<span style=\"white-space:pre\">	</span>…<span style=\"white-space:pre\">	</span>…</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>56. We have referred to the aforesaid passages only to highlight that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons, whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company. The learned counsel for the respondents have vehemently urged that the use of the term “as well as” in the section is of immense significance and, in its tentacle, it brings in the company as well as the Director and/or other officers who are responsible for the acts of the company and, therefore, a prosecution against the Directors or other officers is tenable even if the company is not arraigned as an accused. The words “as well as” have to be understood in the context. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the drag-net on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh [(1970) 3 SCC 491 : 1971 SCC (Cri) 97] which is a three- Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal [(1984) 4 SCC 352 : 1984 SCC (Cri) 620] does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada [(2000) 1 SCC 1 : 2001 SCC (Cri) 174] is overruled with the qualifier as stated in para 51. The decision in Modi Distillery [(1987) 3 SCC 684 : 1987 SCC (Cri) 632] has to be treated to be restricted to its own facts as has been explained by us hereinabove.” </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>In the light of the above judgments and having regard to the fact that the company is not arraigned as accused and as already criminal proceedings against accused No.2 are quashed, I am of the considered opinion that the complaint is not tenable as against the petitioner and therefore, the proceedings are liable to be quashed insofar as the petitioner is concerned.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '028d6daeed1a10044fa4fdb6bc9c34fe.JPG', '7be57788cad63dbb3623451187f8d038.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-01', 1, '', '', '2023-05-30 16:05:15', '2023-06-01 06:13:56'),
(3013, 'rmNh0winpUpq8bFSitxsW7H57', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Wife willfully abandoning husband cannot claim maintenance under Section 125 Cr.P.C. especially when husband has not refused or neglected to maintain her. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shubha Vs H. Satish.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.F.A 5732 of 2015 decided on 10 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Alok Aradhe and Justice Vijaykumar A Patil.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This appeal and revision petition have been filed by the wife which arise out of common judgment dated 19.06.2015 passed in M.C.No.80/2014 and Crl.Misc.No.326/2013. By the aforesaid common judgment, the Family Court has allowed  the  petition filed by the husband under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as \'the Act\') and has dismissed the petition filed by the wife under Section 125 of the Cr.P.C. The appeal and revision petition were therefore heard together and are being decided by this common judgment. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2.<span style=\"white-space: pre;\">	</span>Facts giving rise to filing of this appeal  and revision petition, briefly stated are that the marriage between the parties was performed on 21.05.1987 in Basaveshwara Kalyana Mantapa, Hassan. Out of the wedlock, a son and a daughter namely Sharath and Niharika were born to them. It is not in dispute that the son namely Sharath has completed his graduation in Engineering and is assisting the husband in her business. Similarly, daughter namely Niharika has also completed her graduation in Engineering and is under the care and custody of the husband. The  husband filed a petition under Section 9 of the Act on 02.04.2014 seeking restitution of conjugal rights. It was inter alia pleaded in the petition that the husband on 30.09.2012 at about 3 a.m., picked up a quarrel with the wife on the ground of alleged illicit relationship. The wife, however, refuted the allegations made by the husband. However, the wife left the matrimonial home and started residing with her sister. However, despite efforts being made by the husband, the wife did not join the matrimonial home. The husband thereupon filed a petition seeking restitution of conjugal rights.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>We have considered the submissions made on both sides and have  perused the record.   From perusal of the statement of husband as well as wife, it is evident that the marriage between the parties was performed on 21.05.1987. Thereafter, they have stayed together for a period of 25 years. All of a sudden, on 30.09.2012, the wife left the matrimonial home. Thereafter, no effort has been made by her to join the matrimonial home. The husband is interested in continuing the marital life with the wife and therefore, filed a petition under Section 9 of the Act. The Family Court, in the state of evidence on record, has rightly allowed the petition filed by the husband. Sofar as the claim of the wife with regard to payment of maintenance at Rs.35,000/- p.m. is concerned, from the evidence adduced by the  parties, it is evident that the wife has failed to prove that the husband has either willfully refused or neglected to maintain her. The wife herself has abandoned the matrimonial home on 30.09.2012 and since then, for more than 10 years, she is  residing  separately. Therefore, the ingredients as mentioned under Section 125  of  Cr.P.C.  not  having  been  satisfied,  the  Family Court has rightly  rejected  the  claim  preferred  by  the wife. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>For the aforementioned reasons, we do not  find any merit in the appeal as well as petition. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Accordingly, the same fail and are hereby dismissed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Consequently, the pending interlocutory applications, if any, are also dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e59343539e71460bfc6935e47f0d9299.jpeg', 'ea86ab1fc3896efa424f3eb0e74c4fe9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-31', 1, '', '', '2023-05-30 16:21:54', '2023-05-31 06:20:04'),
(2991, 'b27QRqUIi5iMuyhkCvaGMoJOZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prohibition of transfer under the Karnataka SC/ST PTCL Act do not apply to auction sale of property by Banks including Co-operative Society and Cooperative Bank towards loan recovery. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vijayachandra and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 57108 of 2014 decided on 5 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The petitioner claims to be an auction purchaser of the property, which is claimed to belong to respondent Nos.4 to 6. Respondent No.4 had initially borrowed a sum of Rs.2,40,000/- from respondent No.3/Bank as regards which respondent No.5/Kalu Naik had mortgaged the property bearing Sy.No.153/2 measuring 2 acres 80 cents at Hirbetttu Village, Udupi Taluk and District. The borrower having defaulted on the repayment of the loan, dispute was raised wherein an arbitrator was appointed and an award came to be passed in favour of the Bank. In execution of the said award, the aforesaid land came to be sold through auction by respondent No.3 on 29.09.2005, wherein the petitioner was the successful bidder. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Thereafter, respondent No.2 confirmed the auction sale vide its order dated 21.07.2010, which was challenged by respondent No.6 herein along with respondent No.4 as also two other sons of Kalu Naik in W.P.No.23599/2010 on the ground that the land being a granted land, the same could not be auctioned and provision of Section 4 of the Karnataka Scheduled Caste and Scheduled Tribes Act and Prohibition of Transfer of Certain Lands Act, 1978 (PTCL Act) would be applicable thereto and as such, in the said writ petition the confirmation of the auction was prayed to be quashed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>This Court vide its order dated 02.08.2011, dismissed the petition leaving it open to the petitioner to pursue not only the statutory remedy under the Karnataka Co- operative Societies Act, 1960 (for short ‘KCS Act’) but also to invoke the provision of the PTCL Act since those questions could not be considered on account of the auction sale being at a nascent stage.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>It is not in dispute that the property had been mortgaged to respondent No.3 /Co-operative Bank. It is also not in dispute that the said property had been granted in favour of Vittu Naik in in the year 1960.   It is further not in dispute that the loan which had been obtained by respondent Nos.4 and 5 was not paid, requiring respondent No.3/Bank to initiate action against the property and in pursuance thereof respondent No.3 had also obtained permission from the State Government on 05.12.2009 for conducting the an auction. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">13.<span style=\"white-space: pre;\">	</span>What is required to be seen by this Court is whether respondent No.6 could raise an objection in respect of the auction sale which has been carried out as regards the aforesaid property.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space: pre;\">	</span>A perusal of the plaint in O.S.No.381/2011 indicates that in the plaint which was filed post the disposal of the writ petition in W.P.No.23599/2010, an allegation has been made by respondent No.6 that respondent No.5 is proposing to transfer the property to intending buyers without the knowledge of respondent No.6 in order to make unlawful gain by selling such properties. The further admission made by respondent No.6 in the said plaint indicates that respondent No.5 being the elder member of the joint family, transferred Khata in his name and that he was running the affairs of the family.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>A perusal of the cause title in W.P.No.23599/2010 indicates that the same had been filed by respondent No.6 along with the sons of Kalu Naik and all of them were prosecuting the matter together. A perusal of the decree in O.S.No.381/2011 indicates that the said Kalu Naik had succumbed to a preliminary decree of partition. In such a background when they have been acting together, it cannot be contended that the mortgage was effected by Kalu Naik of his own accord and/or that he was acting contrary to the interest of respondent No.6. Both the legal proceedings indicate that they were acting in concert with each other. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>Such being the situation, the filing of the revision petition and the reasoning in the order passed in the revision petition that the rights of respondent No.6 were not considered while confirming the auction, in my opinion, is again an abuse of the process of the Court resorted to by respondent No.6 in collusion with respondent Nos.4 and 5 as done previously.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space:pre\">	</span>The next submission made by Sri. Jayakumar S. Patil, learned Senior Counsel is that the provision of the PTCL Act, would apply and as such, the property could not have been brought to auction and thereafter sold to the petitioner. The restriction contained in Section 4 of the PTCL Act is only applicable insofar as a voluntary transfer is concerned. In terms of Section 7 of the said Act, there is an exemption which has been provided for categorically stating that nothing in the act would apply to the transfer of granted land in faovur of the government, the central government, a local authority, or a bank, either before or after the commencement of this Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25.<span style=\"white-space:pre\">	</span>A perusal of the above would indicate that a Bank would also include a Co-operative society, including a Co- operative Bank. Thus, there being no restriction on a grantee of agricultural land to avail himself of a loan from any Bank for the purpose of agricultural activities. In the event of there being a default in repayment of the said loan, the borrower cannot subsequently contend that on account of the embargo under Section 4 of the PTCL Act, the property cannot be brought for sale. If such a stand is accepted, then no land which has been mortgaged by a grantee belonging to a Scheduled Caste or Scheduled Tribe Community, can be brought for sale on a default of repayment of the loan. It is for that reason that an exception or an exemption is created under Section 7 of the PTCL Act, and if there is a default in the repayment of the loan, the Bank could be well within its rights to bring the said property for auction, exercising its mortgage rights, as such, this last contention of Sri. Jayakumar S. Patil, learned Senior Counsel, would also not survive for consideration and would have to be rejected.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> i.<span style=\"white-space:pre\">	</span>The writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c948dad1b2627d3fe4f1c48057a9ddc1.JPG', '235f3d5fbafa767cd8aa6908f1f663c4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-26', 1, '', '', '2023-05-25 13:15:54', '2023-05-26 10:22:32');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3008, 'bff1NfBQjQxY47gGKgzsrrrBR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“In our criminal justice system, it is not the end result of the proceedings, that is agonizing, it is the rigmarole of proceedings which by itself can become a punishment.”. Karnataka High Court quashes proceedings against person dragged in POCSO case. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Prasad A.A Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 1294 of 2020 decided on 25 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is before this Court calling in question proceedings in Spl.C.C.No.5025/2019 registered for the offences punishable under Sections 363, 376, 114 and 34 of IPC and Sections 4, 5L, 6 and 17 of the Protection of Children From Sexual Offences Act, 2012, (hereinafter referred as \"POCSO Act\" for short).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 2.<span style=\"white-space: pre;\">	</span>Shorn off unnecessary details, facts in brief are as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is accused No.5. It is the case of the prosecution that a complaint is registered by the 2nd respondent, with whom 17 year old victim was residing, that on 25-10-2019 the victim had gone missing. Based upon the said complaint, on the score that the victim was below 18 years, a crime comes to be registered initially for offences punishable under Section 363 of the IPC. The narration in the complaint was that the victim had gone missing from 25.10.2019. The Police on registration of the crime traces the victim on 27-10- 2019. The statement of the victim was then recorded on 28-10- 2019 and the petitioner along with others comes to be arrested. The offences under Sections 376, 114 r/w 34 of the IPC along with Section 363 are added to Crime No.104 of 2019 along with Sections 4, 6 and 17 of the POCSO Act. The Police after investigation file a charge sheet against all the accused including the petitioner/accused No.5 and the case is now pending as Special Case No.5025 of 2019. Pursuant to the said proceedings, the petitioner is knocking at the doors of this court in the subject petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>The afore-narrated facts are not in dispute. What triggers registration of crime at the outset was the victim/CW-2 going missing on 25-10-2019. It is then the crime for offence punishable under Section 363 IPC comes to be registered in Crime No.104 of 2019. The Police investigate, trace the victim on 27-10-2019 and record her statement on 28-10-2019</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>In the teeth of the aforesaid offences clearly pointing out at accused Nos. 1 to 4 as all the four had conspired to commit the offence, whether the petitioner could be allowed to undergo the rigmarole of trial. The contention of the learned High Court Government Pleader is that there are offences under Section 17 of the POCSO Act and Section 114 of the IPC alleged against the petitioner. He would, therefore, contend that the offence of abetment can always be alleged against the petitioner. In the teeth of the said submission, it is necessary to notice those provisions of law. Section 17 of the POCSO Act reads as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> “17. Punishment for abetment.—Whoever abets any offence under this Act, if the act abetted is committed in consequence of the abetment, shall be punished with punishment provided for that offence. Explanation.—An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy or with the aid, which constitutes the abetment.” </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Section 17 of the POCSO Act deals with punishment for abetment and its ingredients are found in Section 16. Section 16 of the POCSO Act reads as follows:<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16. Abetment of an offence.—A person abets an offence, who—</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>First.—Instigates any person to do that offence; or</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> Secondly.—Engages with one or more other person or persons in any conspiracy for the doing of that offence, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that offence; or</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that offence.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>Explanation I.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact, which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure a thing to be done, is said to instigate the doing of that offence.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>Explanation II.—Whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>Explanation III.—Whoever employ, harbours, receives or transports a child, by means of threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position, vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of any offence under this Act, is said to aid the doing of that act.” </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>A perusal at Section 16 would indicate that if a person instigates any person to do the offence, intentionally aids for commission of the offence or employs, harbours, receives or transports a child by means of threat or use of force or other forms of coercion or abduction would become an offence under Section 17 for abetment. If the afore-quoted statements, facts obtaining in the case at hand are considered on the touch-stone of ingredients of Section 16 it nowhere points at any offence against the petitioner. The petitioner neither aided the commission of offence employed, harboured nor transported the child by coercion by aiding the commission of crime. The commission of crime is pointed out at accused Nos. 1 to 4. Therefore, the offence under Section 17 cannot be laid against the petitioner.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>The other offence is under Section 114 of the IPC. Section 114 of the IPC reads as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“114. Abettor present when offence is committed.—Whenever any person, who if absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.” </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Section 114 of the IPC requires the abettor to be present when the offence is committed. The allegation is against accused Nos. 1 to 4 who have allegedly been a part of the commission of offence. The petitioner was not even present during the commission of offence or in the scene of alleged crime. The petitioner comes into the picture after everything is over and only for the purpose of driving the victim back to her grand-mother’s house. No other allegation is made against the petitioner. Therefore, the petitioner cannot even be thought of hauling for offences under Section 114 of the IPC. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">11.<span style=\"white-space:pre\">	</span>In the teeth of the aforesaid facts which lead to no offence allegeable against the petitioner, as is alleged in the charge sheet, if further proceedings are permitted to continue, it would result in miscarriage of justice, as in our criminal justice system, it is not the end result of the proceedings, that is agonizing, it is the rigmarole of proceedings which by itself can become a punishment. If in the facts of the case at hand such process is permitted to continue, it is doubtless that it would become an abuse of the process of the law and degenerate into harassment. Therefore, I deem it appropriate to exercise jurisdiction of this Court under Article 482 of the CrPC and obliterate the proceedings against the petitioner.<br></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Order</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> i)<span style=\"white-space: pre;\">	</span>The Criminal Petition is allowed.</b></font><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '833619d4e0101ad1d33424333dccd5dc.jpeg', '214a9ca4601f19258a6937fd074e2759.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-06', 1, '', '', '2023-05-30 12:56:21', '2023-06-06 03:18:45'),
(3009, 'NkacD7jmgeDogoSbvadUNXmdX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mere filing of appeal before the appropriate authority against an order without jurisdiction would not cure want of jurisdiction of the original authority. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gurushree High- Tech Multi Specialty Hospital Vs Commissioner for Health and Family Welfare and Chairman and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 729 of 2023 decided on 25 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petitioner is before this Court calling in question an order dated 19.12.2022 passed by the Appellate Authority who is the Chairman and Commissioner of the Health and Family Welfare Department, Bengaluru.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 2.<span style=\"white-space: pre;\">	</span>Sans details, facts in brief are as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">Petitioner claims to be a Hi-tech Multi-Speciality Hospital. Alleging that the hospital has been in the habit of collecting money beyond what is prescribed for the treatment of COVID- 19 to its patients in the hospital, the representative of the people of the constituency, a Minister then addressed a communication to the Competent Authority to initiate proceedings for cancellation of licence against the petitioner. The communication from the Minister leads the 2nd respondent/District Health and Family Welfare Officer to issue a show cause notice on 08.08.2022. Petitioner submits a detailed reply to the show cause notice so issued on 08.08.2022, appending plethora of documents justifying that they have not collected excess charges and the allegations made in the show cause notice are absolutely baseless.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>The afore-narrated facts are not in dispute. The issue in the lis lies in a narrow compass. What necessitates consideration is, as to who, is the Competent Committee to consider the grievances so made and institute proceedings qua the facts in the case at hand. It is not in dispute that the parties to the lis are governed by the Karnataka Private Medical Establishments Act, 2007 (“Act” for short). The Act puts in place grievance redressal mechanism. Section 4 of the Act deals with Registration and Grievance Redressal Authority.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Section 4 has twin Committees, one in the section; the other in the proviso and have twin jurisdiction clearly demarcated. The Committee under Section 4 has its jurisdiction on every medical establishment in the State except the BBMP; the proviso renders jurisdiction to the Committee created in the proviso to the establishments coming within the precincts of the BBMP and nothing about the State.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 9.<span style=\"white-space:pre\">	</span>Likewise, Section 16 of the Act also undergoes an amendment at the time when the proviso was inserted to Section 4. The amended Section 16 created an Appellate Authority for considering appeals filed against orders passed by the Committee created in the proviso.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>The case at hand requires consideration on the bedrock of the aforesaid mandate of the statute.   The genesis of the problem is a tippani from the 4th respondent, the then Minister. The tippani is in the form of a direction to cancel the licence of the petitioner</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The illegality springs from the issuance of the show cause notice itself as it is issued by the 2nd respondent/District Health and Family Welfare Officer who is not the one who had to even consider the grievance or the direction of the Minister (supra). The petitioner does not question the jurisdiction of the officer who had issued the show cause notice, but submits a reply refuting all that was alleged in the notice. The reply leads to passage of an order by the Committee as found in Section 4 of the Act (supra) and not the Committee under the proviso.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This Court directs the petitioner to file an appeal before the Appellate Authority/Competent Authority within 30 days. The petitioner then files an appeal before the Chairman, Appellate Authority and Commissioner of the Health and Family Welfare Services, which was the Appropriate Authority constituted under Section 16 of the Act (supra). The Appellate Authority rejects the appeal. It is this order that is called in question in the subject petition. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>If the order that is passed by the Committee i.e., the original order is considered qua the proviso to Section 4 supra, it would unmistakably indicate that it is an order passed by the Committee which had no jurisdiction to do so. Therefore, the order that is passed by the Committee is coram non-judice. Therefore, an original order which was without jurisdiction is appealed by the petitioner before an Appellate Authority who had jurisdiction to consider the said appeal. The Appellate Authority considers the appeal on its merits and rejects it. The issue now would be, whether the defect of jurisdiction of the original Authority can be cured by the Appellate Authority who had jurisdiction to consider the appeal? The answer is, an unequivocal and an emphatic “no”.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 12.<span style=\"white-space:pre\">	</span>Merely because the petitioner files an appeal to the appropriate Authority against an order of the original Authority which was without jurisdiction and the Appellate Authority considering the appeal on its merit would not cure the want of jurisdiction of the original Authority. If the foundation is faulty, the super-structure of any amount of strength cannot cure the defect. If the original Authority is corum non-judice, the competent Appellate Authority, by considering the appeal cannot breath life into such original order and make it corum judice. It is by now an hackneyed principle of law that if a statute prescribes performance of duties upon certain Authorities, those duties shall be performed only by those Authorities and none else, as error or jurisdiction always cuts at the root of the matter. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>Though the challenge is only to the order passed by the Appellate Authority, since the Appellate Authority has considered the appeal on its merits, the original order has merged with the appellate order and since the original order was without jurisdiction, for the reasons indicated hereinabove, the appellate order is rendered unsustainable.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space:pre\">	</span>Writ Petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5702a5b1642125c603d071e55a45592e.jpeg', '822f210f314acc3433a7edec0750944f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-31', 1, '', '', '2023-05-30 13:20:38', '2023-05-31 08:25:28'),
(2957, '7wGnMBRpAVZFYIT3FV4ISmNBP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Unlawful Activities (Prevention) Act. Special Court has jurisdiction to deal with the order of extension of remand as well as the applications seeking default bail. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mohammad Bilal and others Vs Police Sub Inspector and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P.H.C 10 of 2023 decided on 21 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Alok Aradhe and Justice Vijaykumar A. Patil.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>This petition seeking a writ of habeas corpus has been filed seeking quashment of orders dated 09.01.2023 and 17.01.2023 passed by 49th City Civil and Sessions Judge and Special Judge for trial of National Investigation Agency (hereinafter referred to as \'the Special Court\' for short) cases at Bangalore, granting extension of remand / detention and dismissing the application for default bail, respectively. The petitioners in addition, seek a direction to the respondents to set them at liberty by imposing reasonable conditions to ensure their appearance before the competent court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">2.<span style=\"white-space: pre;\">	</span>The relevant facts which are not in dispute, lie in a narrow compass. On 12.10.2022, Police Sub- Inspector of Panambur Police Station, Mangaluru City registered Crime No.71/2022, against the petitioners for offences under Sections 121, 121A, 121B, 153A and 109 of Indian Penal Code, 1860 and under Section 13 and 18(1)(B) of the Unlawful Activities (Prevention) Act, 1967 on the ground that the petitioners are members of Popular Front of India, which is an organization banned by the Central Government by an order dated 28.09.2022. The allegation against the petitioners is that they were engaged in unlawful activities. The petitioners were arrested on 12.10.2022 and were produced before the Magistrate. The Magistrate, by an order dated 28.12.2022 committed the case to Special Court.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>We have considered the rival submissions made on both sides and have perused the record. The following issues arise for consideration in this writ petition:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space: pre;\">	</span>Whether writ of habeas corpus is maintainable? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">(ii)<span style=\"white-space: pre;\">	</span>Whether the order dated 19.07.2012 passed by the State Government establishing the Court as Special Court is an order under Section 22(1) of the Act?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">9.<span style=\"white-space: pre;\">	</span>Section 2(h) of the Act defines the expression \'Special Court\' to mean a Special Court constituted under Section 11 or, as the case  may  be,  under Section 22 of the Act. Section 11 of the Act deals with power of the  Central Government to designate  Court of sessions as Special Courts, whereas Section 22 of the Act deals with power of the Government to constitute the Special Courts.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>Now we may advert to the first issue namely the aspect of maintainability of the writ petition. The aforesaid issue is no longer res integra and has been answered by the Hon\'ble Supreme Court in GAUTAM NAVLAKHA, supra wherein in paragraph 63 it has been held as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>\"63. xxx If the remand is absolutely illegal or the remand is afflicted with the vice of lack of jurisdiction, a Habeas Corpus petition would indeed lie. Equally, if an order of remand is passed in an absolutely mechanical manner, the person affected can seek the remedy of Habeas Corpus. Barring such situations, a Habeas Corpus petition will not lie.\" </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">11.<span style=\"white-space: pre;\">	</span>In view of aforesaid enunciation of law, the writ of Habeas Corpus is maintainable in the contingencies envisaged in paragraph 63 of the judgment of Hon\'ble Supreme Court in GAUTAM NAVLAKHA, supra. Accordingly, the first issue is answered.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>Now we deal with the second issue namely whether the order dated 19.07.2012 passed by the State Government establishing the Court as Special Court is an order under Section 22(1) of the Act. It is not in dispute that offence alleged against the petitioners are scheduled offences under the Act and the provisions of the Act are applicable to the case of the petitioners. Section 22(1) of the Act provides that the State Government may constitute one or more Special Courts for trial of the offences under any or all of the enactments specified in the Schedule.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>Thus, from perusal of the Government order dated 19.07.2012, it is evident that an order is  an order under Section 22(1) of the Act and therefore, the Special Court has jurisdiction to deal with the order of extension of remand as well as the applications seeking default bail. The provisions of Section 22(3) of the Act has no application to the fact situation of the case. The contention urged by the petitioners that the orders of extension of remand and order rejecting applications for default bail are without jurisdiction and cannot be sustained. Thus, the second issue is answered by stating that order dated 19.07.2012 is an order passed under Section 22(1) of the Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>For the aforementioned reasons, we do not find any merit in this writ petition. Needless to state that the petitioners shall be at liberty to take recourse to such remedy as may be available to them in law. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>With the aforesaid liberty, the petition is disposed of.</b></font></span></p>', '884944c8918f5ba9a404ceb16506e37a.jpeg', 'f24a04d41906c5fbfda176a62a49e0ce.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-02', 1, '', '', '2023-05-01 08:54:45', '2023-05-02 04:21:49');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2958, 'tdWZHaALRnuGz0MEYzQreD2RN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Land Revenue Act. Deputy Commissioner has no power under the Act to stop construction on agricultural lands. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R Lakshman Reddy Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 23665 of 2017 decided on 17 October 2017.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B. Veerappa.&nbsp;&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>The unsuccessful plaintiff in the suit, to get an order of temporary injunction in respect of his private landed property is before this Court for a writ of mandamus directing the second respondent/Deputy Commissioner to consider the representations given by the petitioner dated 30.01.2017, 16.05.2017 and 26.05.2017, as per Annexures-A, B and C respectively, to take suitable action against the respondents 4 to 7 and to declare that they have no right to put up construction in the schedule property morefully described in the writ petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2. It is the case of the petitioner that he is the absolute owner of the piece and parcel of the landed property bearing Sy.No.69/2C4 situated at Singanayakanahalli, Yalahanka Hobli, Bengaluru North Taluk, measuring about 3¼ guntas morefully described in the schedule to the memorandum of writ petition. It is contended that the larger extent of the schedule property belongs to the grand father of the petitioner viz., Muniswamappa and after his demise, the property devolved upon his two sons Ramaiah and Narayanappa. The petitioner is the son of Ramaiah and the fourth respondent is the son of Narayanappa, fifth respondent is the daughter of Narayanappa. The respondent Nos. 6 and 7 are the sons of fifth respondent. The larger extent of the landed property bearing Sy.No.69/2C4 was divided between Ramaiah and Narayanappa and the schedule property mentioned in the writ petition continued to be in the name of deceased Ramaiah, the father of the petitioner. After his death in the&nbsp; year 1991, the schedule property devolved upon the mother of the petitioner by name Nagamma, the petitioner and his younger brother viz., Shivashankara. Thereafter, there was a division in the family and the schedule property was given to the share of the petitioner and his brother Shivashankara. The revenue entries in respect of the schedule property was mutated in the joint&nbsp; names of the petitioner and his brother Shivashankara by virtue of the mutation order passed by the jurisdictional village accountant vide M.R.No.5/93-94. On 22.01.1988, panchayath parikath was entered into among the family members of the petitioner.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3. It is the further case of the petitioner that ever since the division of the family properties way back in the year 1988, the schedule property has continued to be in the joint names of the petitioner and his brother. The revenue entries pursuant to the order of mutation passed in M.R.No.5/1993-94 stood in the joint names of the petitioner and his brother Shivashankara. It is further contended that the respondents, who are utter strangers to the schedule property, who own bit of their land in the larger extent of Sy.No.69/2C4 on the western and southern side, are attempting to encroach upon the schedule property, without having any manner of right, title and interest. Therefore, the&nbsp; petitioner made representations to the Deputy Commissioner to take action against respondent Nos.4 to 7. Since no action has been taken by the Deputy Commissioner, the present writ petition is filed for the relief sought for.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>4. I have heard the learned counsel for the parties to the list</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>5. Sri G.S.Venkata Subbarao, learned counsel for the petitioner, reiterating the grounds urged in the writ petition, contended that under the provisions of Section 95 of the Karnataka Land Revenue Act, 1964, the Deputy Commissioner is the authority to take action against respondent Nos.4 to 7 who are putting up unauthorized construction in the schedule property. He further contended that inspite of the representations made by the petitioner, the Deputy Commissioner has not initiated any action against respondents 4 to 7. The inaction on the part of the Deputy Commissioner has driven the petitioner before this Court. Therefore, he sought to allow the writ petition. In support of his contention, learned counsel relied upon the judgment of the Hon’ble Supreme Court in the case of State of Karnataka and others vs. Shankara Textiles Mills Ltd., reported in (1995)1 SCC 295.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>6. Per contra, Smt. Pramodhini Kishan, learned Addl. Government Advocate, submits that the very writ petition filed for the relief sought for is not maintainable, and same is liable to be dismissed. She further contended that the petitioner has already filed O.S.No.124/2017 against respondent Nos.4 to 7 for permanent injunction in respect of the very property in question and in the said suit, the application for temporary injunction filed by the petitioner has been rejected. By way of dubious method, the present writ petition is filed by the petitioner and therefore, sought&nbsp; to dismiss the writ petition with exemplary costs.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>7. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that arises for consideration in the present writ petition is:&nbsp;<i>“Whether the Deputy Commissioner is the competent authority to take action against the respondents 4 to 7 to stop unauthorized construction on the private property of the petitioner under the provisions of Section 95 of the Karnataka Land Revenue Act, 1964?”&nbsp;</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>8.&nbsp; I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the available material on record, carefully.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>9. It is the specific case of the petitioner before this Court that the petitioner and his brother are the absolute owners of the schedule property morefully described in the memorandum of writ petition. But no measurement is mentioned in the schedule. In the representation made to the Deputy Commissioner, it is stated that the petitioner is the owner of 3¼ guntas of land in Sy.No.69/2C4 situated at Singanayakanahalli, Yalahanka Hobli, Bengaluru North Taluk. According to the petitioner, respondent Nos.4 to 7 having no right, title or interest in the schedule property of the petitioner, are proceeding with the unauthorized construction in the schedule property. Therefore, he requested the Deputy Commissioner to issue direction to stop the unauthorized construction by the respondents 4 to 7 in his private property.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>10.&nbsp; It is not in dispute that the very petitioner has already filed suit in O.S.No.124/2017 against respondent Nos.4 to 7 for permanent injunction claiming that he is the owner in possession of the very property in dispute in the writ petition and to restrain the respondents from making unauthorized construction. Admittedly, in the said suit,&nbsp; petitioner also filed an application for temporary injunction. After contest, the application came to be rejected as stated by the learned counsel for the petitioner. But, copy of the said order is not produced before this Court. The learned counsel for the petitioner also stated that against the rejection of temporary injunction, an appeal in M.A.No.8/2017 is preferred before the Court of&nbsp; Senior Civil Judge, Bengaluru Rural District, Bengaluru, who granted temporary injunction.&nbsp; But copy of the said order is also not produced before this Court.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>11. It is not in dispute that the petitioner claiming to be the owner of the schedule property, having filed a suit for permanent injunction against respondents 4 to 7&nbsp; &nbsp;and&nbsp; &nbsp;having&nbsp; failed&nbsp; &nbsp;to&nbsp; get&nbsp; &nbsp;an&nbsp; order&nbsp; &nbsp;of temporary injunction in the said suit and succeeded to get an order of temporary injunction before the lower appellate Court. Inspite of the same, the petitioner filed the present writ petition as parallel proceedings for a direction to the Deputy Commissioner to take action against respondent Nos.4 to 7 for the unauthorized construction in the schedule property to the writ petition which is impermissible under law.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>12. According to the learned counsel for the petitioner, under Section 95 of the Karnataka Land Revenue Act, the Deputy Commissioner is the only authority to take action against the respondent Nos.4 to 7 who are making unauthorized construction in the private property of the petitioner. It is contended that the schedule property continues to be an agricultural land and if the same is required to be used for any other purpose, order of conversion is required to be obtained as contemplated under Section 95 of the ‘Act’ and if permanent structures are put up by the respondent Nos.4 to&nbsp; without obtaining any permission from the Deputy Commissioner, the usage and construction thereon are illegal and unauthorized and the Deputy Commissioner is the authority to pull down such structures. The said contention of the petitioner is without any basis and the petitioner wants to delegate the powers of the Civil Court to the Deputy Commissioner to grant injunction in favour of the petitioner under the provisions of Section 95 of the Karnataka Land Revenue Act, which is not permissible under law.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>13. With regard to the judgment passed in the case of State of Karnataka and others vs. Shankara Textiles&nbsp; &nbsp;Mills&nbsp; &nbsp;Ltd.,&nbsp; &nbsp;reported&nbsp; in&nbsp; (1995)1&nbsp; &nbsp;SCC&nbsp; &nbsp;295, relied upon by the learned counsel for the petitioner, it was a case where Shankara Textiles Mills was a public limited company and owned a total land of 49 acres and 38.25 guntas in Davanagere village. At the relevant time, it had its factory in an area of 13 acres and 32.25 guntas which was converted into non-agricultural land under Section 95(2) of the Karnataka Land Revenue Act. The remaining land was not converted into non- agricultural land with the result that for the purposes of the Revenue Act, it continued to be considered as agricultural land. In the meanwhile, the Davanagere Improvement Board sought to acquire land to the extent of 28 acres and 14 guntas from the disputed land for the purpose of ‘Devraj Urs Layout’ and accordingly, acquisition proceedings were initiated under the provisions of the Karnataka Improvement Boards Act, 1976, and subsequently, inspite of the final notification issued by the Board, the Land Acquisition Officer did not pass any award. Therefore, the respondent Company approached the High Court for a direction to the Land Acquisition Officer to pass an award. Accordingly, this Court, directed the Land Acquisition Officer to pass an award. Against the said order,&nbsp; Special Leave to Appeal came to be filed by the State before the Hon’ble Supreme Court and the first question that fell for consideration was,&nbsp;<i>“Whether the land can be deemed to have been permitted to be converted for non agricultural use merely because it was used for non agricultural purposes although, admittedly, no permission under Section 95(2) of the Revenue Act was taken, to do so”.</i>&nbsp;The Hon’ble Supreme Court held that, the obvious purpose of Section 95(2) of the Revenue Act, is prevent indiscriminate conversion of agricultural land for non agricultural use and to regulate and control the conversion of agricultural land into non agricultural land and Section 79-(B) of the Karnataka Land Reforms Act is also involved in the said case. Under those circumstances, any occupant of land assessed or held for the purpose of agriculture wishes to divert such land or any part thereof to any other purpose, shall apply for permission to the Deputy Commissioner who may, subject to the provisions of Section and the Rules made thereunder, can refuse permission or grant it on such conditions as he may think fit. Therefore, there is no quarrel with the law laid down by the Hon’ble Supreme Court interpreting the provisions of Section 95(2) of the Karnataka Land Revenue Act, 1964, and Sections 79-A, 79-B, 70-C, 80 and 81 of the Karnataka Land Reforms Act, 1961. The said judgment has no application to the facts and circumstances of the present case.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>14.&nbsp; Admittedly, in the present case, petitioner made representation to the Deputy Commissioner, claiming that he is the owner of the property in question bearing Sy.No.69/2C4 measuring 2 acres 4 guntas alleging that the respondents 4 to 7 attempting to put up a permanent structure in utter violation of law in the suit schedule property which is an agricultural land and same is not converted into non agricultural purpose. Therefore, the Deputy Commissioner should take suitable action against said person and stop unauthorized construction in the schedule property. The representation made and prayer sought in the writ petition for mandamus directing the Deputy Commissioner to take action against the private persons in respect of unauthorized construction made in the private property of the petitioner is purely a civil dispute and the Deputy Commissioner has no power to interfere with the rights and title of the parties in respect of immovable properties.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>15.&nbsp; Inspite of the above facts, very strangely, learned counsel for the petitioner argued that the Deputy Commissioner has got power to stop illegal construction in the agricultural land of the petitioner, by misinterpreting the provisions of Section 95 of the Karnataka Land Revenue Act which is nothing but misleading the Court which is impermissible under law. A plain reading of Section 95(2) of the Karnataka Land Revenue Act clearly depicts that, “If any occupant of land assessed or held for the purpose of agriculture wishes to divert such land or any part thereof to any other purpose, he shall apply for permission to the Deputy Commissioner who may, subject to the provisions of this Section and the rules made thereunder, refuse permission or grant it on such conditions as he may think fit”. Therefore, it applies to only occupant, i.e., owner of the land, that is the interpretation and the intention of the legislature while enacting Section 95 of the Karnataka Land Revenue Act. The same cannot be misused merely because the respondents 4 to 7 are unauthorizedly constructing in the private property of the petitioner which is an agricultural&nbsp; land. “It&nbsp; &nbsp;is&nbsp; purely&nbsp; a&nbsp; &nbsp;civil&nbsp; &nbsp;dispute between the parties”.&nbsp; Admittedly, petitioner already filed suit in O.S.No.124/2017 for permanent injunction and the same is admittedly pending adjudication between the parties.&nbsp; Therefore, petitioner is not entitled to any relief under extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>16. For the reasons stated supra, the point raised for consideration in the writ petition has to be answered in the negative holding that the Deputy Commissioner is not the competent authority to take action against the respondents 4 to 7 to stop unauthorized construction of the private landed property of the petitioner under Section 95 of the Karnataka Land Revenue Act and only competent Civil Court shall decide the right, title and interest in respect of the immovable property of the parties.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>17.&nbsp; It is well settled that the revenue authorities have no jurisdiction to decide the right, title and interest of the parties in respect of immovable properties. My view is fortified by the Full Bench decision of this Court in the case of C.N.Nagendra Singh vs. The Special Deputy Commissioner, Bangalore District, Bangalore&nbsp; and others reported in 2002(6) KAR. L.J. 391 (FB),</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>18.&nbsp; The writ petition filed by the petitioner for the reliefs sought for is nothing but abusing the process of this Court. The petitioner cannot convert this Court&nbsp; into a Civil Court. The present writ petition filed by the petitioner after obtaining temporary injunction before the lower Appellate Court as stated by the learned counsel for the petitioner is nothing but daring ride on the Court. Approaching the Civil Court and filing the present writ petition before this Court in respect of the same property for the same relief in a parallel proceeding is against the majesty of law and obstructing Court proceedings. The attitude and conduct of the petitioner disentitles him to any relief before this Court under Articles 226 and 227 of the Constitution of India. The petitioner, by filing a frivolous writ petition for the relief sought for before this Court, has consumed precious public time and that of the Court. Therefore, writ petition is liable to be dismissed with costs.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>19.&nbsp; The petitioner has not made out any statutory and legally enforceable right to issue a writ of mandamus as prayed for.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>Accordingly writ petition is dismissed with cost of `15,000/- payable by the petitioner to the High Court Legal Services Authority, within a period of one month from the date of receipt of certified copy of this Order, failing which, the High Court Legal Services Authority is directed to recover the cost of `15,000/- from the petitioner as arrears of land revenue.</b></font></span></p>', 'cfc56c0b4b634844b12a8134d6d28d48.jpeg', '13175faadfde0656a8da80c19b16c3a3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-04', 1, '', '', '2023-05-04 05:35:36', '2023-05-04 08:03:03'),
(2963, 'Vhiv86zsuHhblZY3jGeprUWRK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transferable Development Rights. Once lands are surrendered by the owners, State is bound to issue TDR. State cannot contend that the lands are no longer required. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>D.V Venkateshappa Vs The Commissioner BBMP and Others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 1440 of 2021 decided on 5 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>All these petitions broadly involving common grievances of the land losers are presented to the Writ Court essentially seeking a direction to the respondent BBMP for issuance of ‘Transferable Development Rights’ (hereafter TDR) or ‘Developmental Rights Certificates’ in respect of lands in question which they have relinquished in favour of BBMP years ago for the formation or widening of roads.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2. After service of notice, the respondent-State &amp; its officials have entered appearance through the learned AGA; the respondent-BBMP &amp; its officials are represented by their Senior Panel Counsel; similarly, the respondent-BDA &amp; its officials are represented by their Senior Panel Advocate. The respondent-BBMP has filed a Statement of Objections in W.P.No.1440/2021 resisting the claim of petitioners. The said objections are adopted for the rest of petitions too. Learned Addl. Govt. Advocate and the Panel Advocates make submission seeking dismissal of the writ petitions principally contending that the lands are no longer required and that the same will be returned to the land owners.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">All the petitioners happen to be the erstwhile owners of the lands comprised in the subject Relinquishment Deeds. These lands along with other do figure in the Revised Master Plan, as being presumptively required for the public purposes mentioned therein i.e., road widening. The Relinquishment was done more than five years ago and it was at the instance of BBMP which in turn was permitted to take these lands as per the Government Notification of 2005. This being, the TDR certificates have not been given to the petitioners despite representations. The BBMP now contends that these lands are no longer required and therefore, would be returned to the relinquishers. Even otherwise, the subject lands being situate outside its territorial jurisdictional limits, they cannot be made use of and therefore, TDR Certificates cannot be granted. With this principal stand dismissal of Writ Petitions is sought for.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>4. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons: (a)<span style=\"white-space: pre;\">	</span>Right to property although is no longer a Fundamental Right after 42nd Amendment to the Constitution, it is constitutionally secured. The Apex Court in BAJRANGA vs. STATE OF MADHYA PRADESH, (2021) SCC OnLine SC 27 reiterated: “Right to property is still a constitutional right under Article 300A of the Constitution of India though not a fundamental right. The deprivation of the right can only be in accordance with the procedure established by law.” Ordinarily, the State takes the property of private persons either by consensual purchase or by compulsory acquisition, as provided under the law concerned. The latter is inter alia subject to payment of adequate compensation. The claim of petitioners has to be adjudged keeping this in mind.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>b. With regard to TDR, before TDR was conceptualized, the like concepts of taxing and zoning in exercise of State interest were treated by the U.S. Supreme Court nearly a century ago in VILLAGE OF EUCLID vs. AMBLER REALTY CO. 272 U.S. 365 (1926). Long thereafter, the case of PENN CENTRAL TRANSPORT&nbsp; COMPANY&nbsp; vs.&nbsp; NEW&nbsp; YORK&nbsp; CITY&nbsp; 438&nbsp; U.S.&nbsp; 104 (1978) addressed TDR as a flexible alternative to the payment of compensation to the persons who give up their properties and thereby get Enhanced Developmental Rights in some other property belonging to them</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\">(d) The Statement of Objection filed by Respondent – BBMP on 10.12.2021, refers to the Government Letter dated 12.12.2011 at Annexure – R1 thereto, which grants approval for having the lands for the purpose of widening of roads mentioned in Revised Master Plan 2015, even when these lands are situate outside the BBMP jurisdictional limits.&nbsp;</font></span><font face=\"Calibri, sans-serif\">The BBMP also admits that it has secured the subject lands by way of registered Relinquishment Deeds. Thus, they lost the ownership of the lands and the BBMP gained the same in accordance with the statutory scheme. But for the assurance of TDR, the petitioners would not have surrendered their valuable lands, which admittedly are comprised in the Revised Master Plan. It is not that the BBMP or the Government has paid any compensation. The BBMP has not utilised the said lands is a poor justification for denying TDR. After the relinquishment, petitioners have no say over what the BBMP would do with these lands. The handing of TDR certificates is not dependent upon the proof of utilization of lands by the BBMP for the avowed purpose. If contention of BBMP is accepted, petitioners who have lost their lands would not get either the compensation or the TDR and thus the action of the BBMP would amount to forfeiting private property without authorization of law and therefore, is violative&nbsp; of constitutional mandate enacted in Article 300A.</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(e) The contention of respondent BBMP that it has not taken the possession of surrendered lands in question, is bit difficult to countenance for more than one reason: firstly, the Relinquishment Deeds that are placed on record are registered instruments to which BBMP is a party signatory and they specifically mention about delivery of possession. Secondly, it is the specific case of petitioners that all they have given up the possession of subject lands simultaneously with the execution and registration of Relinquishment Deeds. In fact, some of the petitioners have dismantled their structures that existed in few of these lands and thereafter handed the same to BBMP. Thirdly, petitioners specifically state that they are not in the possession of these lands. It is not the case of BBMP that the petitioners obstructed or otherwise interfered with the BBMP utilizing these lands for any purpose. Even now, petitioners in all fairness state that the BBMP is free to do whatever it wants in the subject lands and that they shall be miles away from all that. If any of the petitioners or any one claiming under them takes up a plea/contention in any proceeding before any Court/authority inconsistent with what is stated herein above they can not only be prosecuted for trespass but tried for the offence of perjury and contempt.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(f) Petitioners acting on the statutory policy of the State and believing the words of Government and BBMP have surrendered valuable lands and thereby altered their position to their disadvantage and to the great benefit of BBMP. Thus, there is a fool-proof case for the invocation of doctrine of estoppel as enacted in Section 115 of the Indian Evidence Act, 1872. There is a State policy namely, the Government Notification dated 18.01.2005 promulgated under Section 14B of 1961 Act. Added, the government vide letter dated 12.12.2011 specifically assured about the TDR facility on the land being surrendered. It is pursuant to this the BBMP got these lands from the petitioner without paying any compensation or consideration. Years have lapsed since these lands have been surrendered. Thus a classic case is made out by the petitioners for invoking promissory estoppel as well. There is a choate cause of action for the grant of relief<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(g) In relation to Bhopal Gas Tragedy, there was a case in a District Court in New York i.e., Un IN RE: UNION CARBIDE CORPORATION GAS LEAK DISATER AT BHOPAL, INDIA&nbsp; &nbsp;IN&nbsp; DECEMBER&nbsp; 1984. The MNC was seeking adjudication of the claims only in American Court alleging that Indian legal system is inadequate. A great jurist of yester decades Mr. N.A. Palkhivala in his personal Affidavit dated 18.12.1985 filed in the said court extolled the efficacy &amp; greatness of Indian Judiciary, inter alia by referring to MOTILAL PADAMPAT supra.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(h) The contention of BBMP that the lands being no longer required, it would reconvey the same to the owners thereof, is thoroughly unjustified and unconscionable. As already mentioned above, petitioners gave up their lands years ago and free of cost, of course, the TDR being the assured recompense. They did it, not for getting the lands back that too at this length of time. No law nor any ruling is brought to the notice of this court which supports such a stand of BBMP. It was open to the BBMP to stipulate a condition of reconveyance in the Relinquishment Deed itself, specifying the circumstances on which it could have structured defense of the kind. Such a condition conspicuously being absent in the deeds, this contention has to fail. The action of BBMP falls short of constitutional morality. This statutory authority which answers the definition of State under Article 12 of the Constitution cannot be permitted to resile from the its promise of issuing TDR Certificates more particularly in the teath of amended law.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i) Learned Panel Counsel for the answering Respondent lastly contended that the prayer of petitioners is only for the consideration of their representations at the hands of BBMP and therefore, no direction can be issued for the grant of TDR certificates. This argument is attractive, at the first blush. However, a deeper examination robs off all its attraction. As already mentioned above, the letter of Government granting permission to the BBMP for taking the lands in question was issued in 2011. Acting on assurance, petitioners surrendered their lands years ago. The BBMP has been holding on these properties since then. A specific stand is unjustifiably taken by the BBMP in their pleadings &amp; submissions that no TDR Certificates can be granted. Added the prayer for a direction for the consideration of representations is made only as an alternative to the principal prayer. Therefore justice will not be meted out by the&nbsp; issuance of only a direction to consider the representations when stand of BBMP is already known. ‘Justice should not&nbsp; only be done, but seen to have been done’ said Lord Hewart in REX vs. SUSSEX JUSTICES, 1924 1 KB 256.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>In the above circumstances, these petitions succeed with the following order:-</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space: pre;\">	</span>A Writ of Mandamus issues to the respondent-State and the BBMP to grant TDR Certificates to the petitioners within a period of three months. If delay&nbsp; is&nbsp; brooked, the BBMP shall pay cost to the petitioners at the rate of&nbsp; Rs.1,000/- per week per square meter of relinquished lands, in addition to risking in contempt action.&nbsp;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space: pre;\">	</span>It is open to the petitioners to seek reconveyance of surrendered lands, if they so desire, and if representations to this effect are made, the respondent BDA shall reconvey the surrendered lands within eight weeks, failing which the same cost as prescribed above shall be paid, till that is done, in addition to risking in contempt action. Liberty is reserved to the respondent-BBMP to recover the costs if &amp; when paid, personally from the erring officials in accordance with law.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space: pre;\">	</span>The above directions shall take effect only if petitioners file with the Registry of this Court and with the BBMP within four weeks an affidavit of Rs.100/- Non-Judicial stamp paper to the effect that the BBMP has been in the exclusive possession of subject lands and that they or anyone claiming under them shall not interfere with the same in any circumstance nor they shall claim any compensation or damages or return of the lands.</b></font></p>', 'b87f288e76a8728b44310ade1d96ccca.jpeg', 'a050010315c0446d988fc7e24765104e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-16', 1, '', '', '2023-05-16 14:10:11', '2023-05-16 14:10:11'),
(2965, 'gxh1h4dhrlyqtVeoFkvieyqXe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'BBMP property tax on Educational Institutions. Karnataka High Court strikes down the Government Circular and BBMP tax demand in view of the amendment. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Management Association of Schools Karnataka and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 12954 of 2021 decided on 17 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space: pre;\">	</span>In the above matter, a declaration has been sought for that Section 152(1)(i)(b) of the Bruhath Bengaluru Mahanaga Palike Act, 2020 (for short the \'BBMP Act\') insofar as it excludes education purposes by private education institutions, is violative of Article 14 of the Constitution of India and is discriminatory. It is in that background that a circular which has been issued under Section 152(1)(i)(b) of the BBMP Act by the BBMP notifying that private institutions do not have the benefit of exemption from payment of property tax has been challenged. Consequently, the demand notice issued by the BBMP calling upon the petitioners to make payment of property tax is also challenged.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 2.<span style=\"white-space: pre;\">	</span>During the pendency of the above matter, the State Government has amended Section 152(1)(i)(b) of the BBMP Act on 10.03.2023 substituting Section 152(1)(i)(b) of the BBMP Act with the following: \"the education institutions established for the purpose of education, recognized by the government or local authority\". </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>In view of the said amendment, the discrimination alleged by the petitioners against private education institutions vis-a-vis government education institutions does not survive inasmuch as all education institutions which have been recognized by the government or local authority would be entitled for exemption. Thus, a declaration which has been sought for in the above matter in respect of 152(1)(i)(b) of the BBMP Act has been violative of Article 14 of the Constitution of India does not survive for consideration. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>In view of the amendment, the circular which has been issued on 29.03.2021 notifying that private institutions do not have the benefit of exemption would be required to be quashed on account of Section 152(1)(i)(b) of BBMP Act has been amended by clarifying that any institution which is recognized by the government or local authority would be entitled for exemption. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>The consequential prayer seeking for quashing the demand notices which have been issued by the BBMP to the petitioners in furtherance of the circular dated 29.03.2021 would also have to be quashed in view of the circular having been quashed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>It is made clear that if the petitioners have deposited any amount in view of any interim orders passed by this Court, the same is directed to be adjusted to future tax payments due by the petitioners on the said properties.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 7.<span style=\"white-space: pre;\">	</span>With the above observations, the petition is disposed of.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7f4072160d7beda5fdc519c8863c9f1a.JPG', '3ff2ddbac05d7be8193adc348213b503.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-20', 1, '', '', '2023-05-20 17:09:57', '2023-05-20 11:47:34');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2966, 'c1q8BVVrcyaO86kWopM722UdW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Planning Authority insisting for surrender of land free of cost for national highway at the time of plan sanction amounts to extortion and cannot be sustained. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sri Vinod Damji Patel Vs The Hoskote Yojana Pradhikara Mission Hospital and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 15103 of 2022 decided on 17 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The petitioner is the absolute owner of 8 ½ guntas of land in Sy.No.133 of Dandupalya Village, Hosakote Taluk, Bangalore Rural District. The said land has been converted for non-agricultural purposes by way of a orders passed by a Deputy Commissioner on 28.4.2005. The said land alongwith certain other lands totally measuring 11 acres 37 ½ guntas, including the lands in Sy.No.134 measuring 26 guntas and 33 guntas in Sy.No.133 were converted for non-agricultural purposes vide order of the Deputy Commissioner dated 28.4.2005. The petitioner had purchased the aforesaid 8¼ guntas of land on 30.7.2013 under Deed of Sale registered with Sub-Registrar, Hosakote. The petitioner submitted a plan for approval to respondent No.1 in respect of aforesaid land. The respondent No.1 vide letter dated 27.1.2022 contending that 80% of the said land had been ear- marked for widening of National Highway-35 to 45 meters and called upon the petitioner to hand over the land so ear-marked free of cost and it is only thereafter the respondent No.1 would approve the plan. It is aggrieved by the same, that the petitioner is before this Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>A perusal of Section 17(2-B) indicates that it is when a plan sanction is granted and road ear-marked in such a plan sanction, the said road would have to be surrendered free of cost. If civic amenities are ear- marked the said civic amenities would have to be surrendered free of cost. The essential ingredient being that the said road and civic amenities are required to be part of the plan sanctioned by the planning authority and the extent of road and civic amenities are calculated in terms of the zonal regulations applicable thereto. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>In the present case, what is sought for by respondent No.1 is surrender of land of the petitioner for the proposed widening of the National Highway to 45 meters.  In that view of the matter the demand made by respondent No.1 to say the least would be a claim made by the respondent No.1 in extortion by using their power to sanction a plan. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>If respondent No.1 intends to form any road on land belonging to a private citizen, it would be required for such authority to acquire the land and make payment of due compensation to such private citizen. Merely because of land being designated for widening of an existing road or designated for a formation of a road, there cannot be demand by a planning authority like respondent No.1 to surrender the said land free of cost by the owner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>The interpretation now sought to be given to Section 17(2-B) KCTP Act is completely misplaced in as much as the said provision only relates to roads formed within the layout and the civic amenities formed within the layout to be sanctioned. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>Admittedly, the proposed widening of the 45 meters of road has nothing to do with a layout but something which has been planned by the authorities concerned keeping in view the requirement of widening the existing National Highway and the same has been approved by the State Government by approving the master plans. The said contention as already observed being a claim by the respondent No.1-Authority amounting to extortion cannot be sustained.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space:pre\">	</span>The writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '70d64c0f9266eabce77e26c3ba906b3e.JPG', '5b35b1d0df6e395f86787af834dbada2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-22', 1, '', '', '2023-05-21 17:47:13', '2023-05-22 03:27:38'),
(2967, '8a9HdPQTAWkvLN63ceWybFpaZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque bounce cases. Trial Courts shall verify papers before taking cognizance and provide opportunity to complainant to rectify the mistakes due to inadvertence, ignorance or negligence. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Indian Potash Limited Vs S.M. Sadalage and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1140 of 2012 decided on 29 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P.N. Desai.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">This appeal arising out of judgment of acquittal passed by the V Addl. Judge, Court of Small Causes and XXIV Addl. Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru (SCCH-20), wherein, respondents/accused were acquitted for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred as \'N.I. Act\') in CC.No.28722/2006 dated 25.08.2012.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Brief case of the complainant before the trial Court was that:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Complainant was a Company registered under the Indian Companies Act, it was engaged in importing of fertilizers and marketing. They are suppliers and distributors of M.O.P. DAP.17:17:17 and 20:20:20 etc. Accused No.1 is the Chairman and accused No.2 is the Director of M/s. Ganeshanugraha Fertilizers and Chemicals Private Limited, who are the dealers and manufacturers of chemicals and fertilizers. Complainant used to supply raw-materials and fertilizers to accused who in turn used to market it and supply of the materials by the complainant to the accused is made on credit basis and running account is maintained in respect of transactions between the parties. The transactions were going on for several years. The complainant used to supply the fertilizers and raw- materials to the accused and accused in turn used to supply finished goods. The unrealized payment was adjusted on the basis of the quantity of Micro nutrients supplied to the complainant and in those transactions, there is accumulation of payments. As on 27.10.2005 an amount of Rs.1,00,00,000/- was due to the complainant from the accused including interest and over due interest. Towards discharge of the same, accused issued a cheque bearing No.428106 dated 27.10.2005 for a sum of Rs.1,00,00,000/- in favour of the complainant drawn on the Bank of India, Hotel Dharwad building, P.B.Road, Dharwad. But when the said cheque was presented for encashment, it was returned dishonored with a Bank endorsement as \'exceeds arrangement\'. In this regard, complainant issued a legal notice calling upon the accused to pay the amount, but the accused did not pay amount and sent untenable reply. Hence, complaint was lodged.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 4.<span style=\"white-space: pre;\">	</span>Before the trial Court, complainant got examined himself as PW.1 and got marked eighteen documents as Exs.P1 to P18. The statement of accused under Section 313 of Cr.P.C. was recorded. The accused denied the incriminating evidence against them. Accused No.1 examined himself as DW.1 and got marked thirty two documents as Exs.D1 to D32. After hearing the arguments, learned Magistrate dismissed the complaint and acquitted the accused. Aggrieved by the same, this appeal is filed.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">20.<span style=\"white-space: pre;\">	</span>The learned JMFC has raised a point for consideration, that whether the complainant proves that accused had issued a cheque dated 27.10.2005 bearing No.428106 for Rs.1,00,00,000/- in favour of the complainant and the said cheque was presented for encashment returned with an endorsement \'Exceeds Arrangement\'. In answering the said point, the learned JMFC found that the cheque number produced in the case is bearing No.428101 dated 25.10.2005 and it is for a sum of Rs.83,30,100.61/- as per Ex.P2. The bank endorsements is dated 29.10.2005 and 10.11.2005 produced as per Exs.P3 and P4 is also for the same amount. Therefore, the cheque number, the bank memo and the date of cheque and the number of cheque mentioned in the complaint and evidence affidavit of complainant does not tally with the documentary evidence produced in this case. The learned JMFC observed that may be due to inadvertence these documents are produced. Therefore, learned JMFC found that as the initial burden of proving that the cheque was issued and it was dishonoured are not proved, the complainant has failed to prove the initial burden and as the oral evidence and documentary evidence are contradictory to each, acquitted the accused.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26.<span style=\"white-space: pre;\">	</span>I have perused the order sheet of the trial court. It is evident that the complaint was filed belatedly and the delay was condoned under Section 142(b) of N.I Act. The learned JMFC by perusing the allegations of complainant stated that they constitute an offence under Section 138 of N.I. Act, hence, cognizance is taken and directed to register the case as PCR. The very order itself shows that mechanically, the learned JMFC has registered the case without verifying the documents, as they are not tallying with written complaint. If at all the learned JMFC has verified the documents at the time of taking cognizance itself in the year 2006, the complainant could have taken appropriate steps. But the said documents were not noticed, though it is mentioned in the order that documents are perused. The documents shows that they are not at all perused and the case proceeded with trial by the Court. It is very unfortunate that even the evidence on oath is filed based on these documents which are not concerned to this case and the same were also marked without verifying them. Therefore, the learned JMFC finding cannot be said as either illegal or perverse. When the complaint, evidence filed by way of affidavit and the documentary evidence are inconsistent with each other, the Court has no other way but to dismiss the complaint.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 27.<span style=\"white-space: pre;\">	</span>It is also evident that the accused company is not made as party. At this stage, this Court cannot give any such direction to implead the company as a party to case by remanding the matter as the same is not permissible, in view of decision of Hon\'ble Supreme Court in the case of Himanshu Vs. B.Shivamurthy and another - (2019) 3 SCC 797 wherein the Hon\'ble Supreme Court has considered and discussed regarding the Sections 138 and 141 of N.I. Act and necessary conditions to be complied with for constituting an offence under Section 138 of N.I. Act, in general and against company and its directors/officers and where necessary conditions under Section 138 of N.I. Act are not complied with, company cannot subsequently be arraigned as accused in proceedings under Section 138 of N.I. Act. The Hon\'ble Supreme Court has referred to its earlier decision in the case of Anitha Hada\'s case. In that case also, the complaint was lodged for dishonour of cheque dated 26.12.2003 and it was returned with an endorsement funds insufficient. The complainant therein issued a notice to the appellant and the same was also served. Upon the failure of the appellant to pay the amount due under the cheque, a complaint was instituted. The Civil Judge, Junior Division and JMFC, Tiptur took cognizance on 06.7.2004 and issued summons to the appellant. Against the same, the appellant instituted a petition under Section 482 of Cr.P.C before this Court. This Court held that on meticulously going through the cheque dated 23.12.2005, it discloses that the cheque was issued by one of the Directors of the company and that was not a cheque issued by any person in his individual capacity. If that is accepted, the complaint should have been against the company and its Directors and not against the accused. The said petition was dismissed by this Court. The said petition was dismissed by this Court. The Hon\'ble Supreme Court referred to Anitha Hada\'s case supra and at paragraph No.7 it is held as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>\"7. The first submission on behalf of the appellant is no longer res integra. A decision of a three-Judge Bench of this Court in Aneeta Hada Vs. Godfather Travels & Tours (P) Ltd. governs the area of dispute. The issue which fell for consideration was whether an authorized signatory of a company would be liable for prosecution under Section 138 of the Negotiable Instruments Act, 1881 without the company being arraigned as an accused. The three-Judge Bench held thus:</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>In similar terms, the Court further held:</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>59.<span style=\"white-space:pre\">	</span>In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution   under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself.</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>28.<span style=\"white-space:pre\">	</span>Further regarding to Section 141 of N.I. Act it is held at paragraph Nos. 11, 12, 13 as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> 11.<span style=\"white-space:pre\">	</span>In the present case, the record before the Court indicates that the cheque was drawn by the appellant for Lakshmi Cement and Ceramics Industries Ltd., as its Director. A notice of demand was served only on the appellant. The complaint was lodged only against the appellant without arraigning the company as an accused. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>12.<span style=\"white-space:pre\">	</span>The provisions of Section 141 postulate that if the person committing an offence under Section 138 is a company, every person, who at the time when the offence was committed was in charge of or was responsible to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>13.<span style=\"white-space:pre\">	</span>In the absence of the company being arraigned as an accused, a complaint against the appellant was therefore not maintainable. The appellant had signed the cheque as a Director of the company and for and on its behalf. Moreover, in the absence of a notice of demand being served on the company and without compliance with the proviso to Section 138, the High Court was in error in holding that the company could now be arraigned as an accused.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 29.<span style=\"white-space:pre\">	</span>Therefore, in view of the principles stated in above decision, even this Court cannot remand the matter at this stage, even if there is any such material to remand the matter. But no purpose would be served to remand the matter, as company is admittedly not made as party. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>30.<span style=\"white-space:pre\">	</span>It is the settled principles of law that this court being the Appellate Court will not interfere with the judgment of acquittal, unless it is shown that the judgment of acquittal is perverse, illegal and not based on proper appreciation of evidence on record and it has resulted in miscarriage of justice. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>31.<span style=\"white-space:pre\">	</span>In the light of these principles, if the judgment of Trial Court, the case of the complainant, both oral and documentary evidence are perused, it is evident that they are totally inconsistent with each other. The complainant himself should be blamed for not filing proper evidence and not producing the proper documents. Therefore, at this length of time, no purpose would be served by remanding the matter in view of decision in the case of Himanhu referred supra. Therefore, viewed from any angle, the appeal being devoid of merit, is liable to be dismissed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>32.<span style=\"white-space:pre\">	</span>However certain directions needs to be issued to the Trial Courts in order to avoid waste of time of the Courts as well as case being pending for years together for not properly scrutinizing the complaint and documents produce along with complaint at the initial stage itself. Because if the complaint and documents are properly verified and scrutinized in view of Sections 138 and 141 of N.I Act at the initial stage itself, it would prevent waste of judicial time.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>The appeal is hereby dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3d7682cd4646eafb33e98607165c8394.jpeg', '168719b9e040c268995359cfa76480d9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-22', 1, '', '', '2023-05-21 18:03:37', '2023-05-22 06:42:50'),
(2968, '3fcneqfwPGI6KlWDLgdTelnQv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Child custody. Karnataka High Court approves denial of female child custody to father who failed to take care of her privacy and security. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Joseph Kevin Selvadoray Vs Shabana Bukht.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 23969 of 2022 decided on 5 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The petitioner is before this Court calling in question order dated 13-10-2022 passed by the II Additional Principal Judge, Family Court, Bengaluru in G & WC No.288 of 2018 whereby the concerned Court rejects Interlocutory Application No.XX and has further sought for a direction seeking custody of minor child in equal proportion between him and his wife.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Facts adumbrated are as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The petitioner is the husband and respondent his wife. The two get married on 19-08-2005. From the wedlock a girl child is born on 04-01-2014. The child is now 9 years old. The relationship between the petitioner and the respondent/wife turns sour and the allegation is that the wife began to live separately along with the minor daughter. Owing to such dispute between the husband and the wife, the husband institutes proceedings before the Family Court in M.C.No.5570 of 2018 seeking judicial separation from the wife. The petitioner also files a petition invoking Section 12 of the Guardians and Wards Act, 1890 (‘the Act’ for short) before the II Additional Principal Judge, Family Court, Bengaluru in G & WC 288 of 2018 seeking an order for appointing him to be the guardian of minor child. The respondent/wife contested the matter by filing her objections in the aforesaid proceedings before the concerned Court in G & WC No.288 of 2018.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">9.<span style=\"white-space: pre;\">	</span>The afore-narrated facts are not in dispute. The relationship between the couple flounder. The petitioner and the respondent are before the concerned Court in two proceedings – one in M.C.No.5570 of 2018 and the other in G & WC No.288 of 2018. The first of the case filed by the husband was on 15-10-2018. The Family Court granted an ex-parte interim order in favour of the husband restraining the wife from interfering with the peaceful custody of the minor child by the husband reserving liberty in the wife to seek visitation rights. It is then the wife files application I.A.No.VI under Order 39 Rule 4 seeking vacation of the interim order dated 15-10-2018 and I.A.No.VII under Section 12 read with Section 25 of the Act seeking restoration of custody of the minor child to her. This was partly allowed by the concerned Court granting visitation rights to the wife on every alternative Saturday and Sunday with effect from 27-04-2019 and custody on every alternate Saturday and Sunday from 5.00 p.m. to 8.00 p.m.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space: pre;\">	</span>The petitioner has himself appended several photographs to the petition seeking to demonstrate that the girl child/daughter has a good relation with the father to buttress his claim for custody of the child. Those photographs apparently are clicked by a stranger which the wife narrates in detail the manner in which the photographs are taken. It is a fact that there is nobody to take care of the child when the father is not around and the child is handed over to a male stranger by name Vijay who is also alleged to have been sleeping in the same bed while the father and the daughter would sleep only to take photographs. The mother narrates that on several occasions the child had expressed her anguish getting too anxious about a stranger continuously photographing and videographing the child. If these facts are noticed, it becomes unmistakably clear that the father has not created a congenial atmosphere to the girl child, who is now 9 years old, he cannot therefore be heard to contend that he has a right to claim custody of the child, despite the afore-noted glaring facts. The girl child, in her best interest, prefers to be with her mother and psychologically it is presumed that bond between the child and mother is the finest. In cases of this nature, where the parents are wrangling on their egos, wound is inflicted on the child. The Apex Court has cautioned such parents in the case of RAJESWARI CHANDRASEKAR GANESH. It would be apt to quote the paragraphs, which read as follows:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> “120. Before we close this matter, we would like to convey to the parties that their two minor children are watching them very closely. Showing the children that their parents can respect each other and resolve the conflict respectfully will give them a good foundation for the conflict that may, God forbid, arise in their own lives. The parties should try to do their best to remain relaxed and focused. It is critical to maintain boundaries between the adult problems and children. It is of utmost interest to protect the innocence of children and allow them to remain children. They must not be burdened by any adult problem. Minor children do not have the coping skills or the intellectual ability to understand any issues like the financial constraints, adult relationship issues or their parents unhappiness. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><i><b><font face=\"Calibri, sans-serif\">121. We find the observations made by the Delhi High Court, in the case of K.G. v. State of Delhi, dated 16.11.2017 in Writ Petition (Criminal) No. 374/2017 and Criminal Miscellaneous Application No. 2007/2017, quite commendable, that the best welfare of the child, normally, would lie in living with both his/her parents in a happy, loving and caring environment, where the parents contribute to the upbringing of the child in all spheres of life, and the child receives emotional, social, physical and material support - to name a few. In a disturbed marriage, unfortunately, there is bound to be impairment of some of the inputs which are, ideally, essential for the best interest of the child.”</font><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The Apex Court observes that the minor children are watching the parents closely. Showing the children that their parents can respect each other and resolve the conflict with respect will give such children, a good foundation. The parties – husband and wife should try to do their best to remain relaxed and focused. It is critical to maintain boundaries between the adult problems and children and it is of utmost interest to protect the innocence of children and allow them to remain children. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>Even in the case at hand, for the last five years the husband and the wife have been in constant squabble. The minor girl child has been watching parents right from her tender age of 4 years. The minor child does not have the coping skills or the intellectual ability to understand the issues between the adult relationship or the parents unhappiness. The parents have to contribute to the upbringing of the child on all emotions, be it social, physical, mental or material support inter alia. In a disturbed marriage, there is bound to be impairment. Therefore, in the best interest of the girl child, in the case at hand and owing to the facts as narrated hereinabove, I do not find any warrant to interfere with the order passed by the concerned Court in declining to grant custody and permitting grant of visitation rights only. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>In the result, the petition lacking in merits stands dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9459e55ae98f620b731b0c30bb3685ef.jpeg', '41ba1ef15de75dfc3c2b6518b01e0e71.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-22', 1, '', '', '2023-05-21 18:28:23', '2023-05-22 12:26:49');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2969, '5KTKn5fQZw71KaijgRSE3MM3a', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Debt recovery. Loss caused by an employee during the course of banking business cannot be termed as ‘debt’ and the employee cannot be termed to be a borrower. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R. Ranganatha Vs Indian Bank.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 14733 of 2021 decided on 21 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is before this Court calling in question proceedings before the Debts Recovery Tribunal-I at Bengaluru (‘the Tribunal’ for short) in O.A.No.487 of 2014 initiated by the respondent/Indian Bank (‘the Bank’ for short) invoking the provisions of The Recovery of Debts and Bankruptcy Act, 1993 (‘the Act’ for short) and Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (‘SARFAESI Act’ for short). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Brief facts that leads the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The petitioner joined the service of the respondent/Bank as a Clerk in the 1980 and was from time to time promoted to higher echelons of office, first, in the year 1985 as Junior Management Grade Scale-I; later in the years 1996 as Middle Management Grade Scale-II, and in the year 2005 as Middle Management Grade Scale-III. After his promotion to Scale-III, the petitioner was posted as Branch Manager of the respondent/Bank at Shivajinagar Branch, Bengaluru. Long after his entry to the Shivajinagar Branch, on allegations of omissions and commissions, disciplinary proceedings come to be initiated against the petitioner alleging gross irregularities committed by the petitioner in disbursement of loans during the tenure when he was the Branch Manager in Shivajinagar Branch. The result of the departmental inquiry was that the petitioner was imposed a penalty of compulsory retirement in terms of the order of the Disciplinary Authority dated 02-04-2011. The petitioner files an appeal against the order of compulsory retirement which also comes to be affirmed by the Appellate Authority. The respondent /Bank on the ground that acts of the petitioner have resulted in financial loss to the Bank to the tune of `156.06 lakhs, forfeits his gratuity. A review petition filed against the order of compulsory retirement, also did not yield any order in favour of the petitioner. Challenging the orders passed by the Disciplinary Authority, the Appellate Authority and the Reviewing Authority, the petitioner preferred Writ Petition No. 28289 of 2013 before this Court and the same is pending consideration.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>During the service of the petitioner, he had availed a loan to construct a residential house in a site purchased by him and his wife in Bengaluru City. The site was purchased on 19.05.1999 and an application was made for sanction of housing loan on 05-10-1999. An amount of `4,72,348/- was sanctioned in favour of the petitioner by creating an equitable mortgage of the property purchased by him as aforesaid. The petitioner appears to have approached the Bank again for additional housing loan and was granted such loan on 31-10-2001 in a sum of `2,50,000/- by extending the already created equitable mortgage. The petitioner cleared entire dues of the housing loan on 22-12-2011. The Bank did not return original documents of the property that was mortgaged with the Bank against the said loan. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>Thereafter what the Bank would do is invoke the jurisdiction of the Tribunal by filing an original application in O.A.No.487 of 2014 under Section 19 of the Act before the Tribunal seeking issuance of a recovery certificate against the petitioner and a direction to pay a sum of `2,36,24,032/- together with interest which was the alleged financial loss suffered by the respondent/Bank on account of alleged acts of the petitioner in disbursement of loans in his official capacity. The Tribunal admits the application, issues notice/summons to the petitioner and grants an order in favour of the respondent/Bank attaching the schedule property therein i.e., the property in respect of which the petitioner had cleared all the dues to its last pie. The petitioner files detailed objections before the Tribunal clearly bringing out that the proceedings before the Tribunal is without jurisdiction. The Tribunal proceeds further without answering the issue of jurisdiction. It is then, the petitioner knocks at the doors of this Court in the subject petition calling in question the entire proceedings before the Tribunal and seeking a mandamus to the respondent/Bank to hand over original title deeds of the schedule property to the petitioner.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. In furtherance whereof, the issue that falls for my consideration is:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“Whether the act of the petitioner, in discharge of his official duty, on disbursement of loans and those loans becoming non-performing assets at a later point in time, would amount to a debt under the Act or under the SARFAESI Act against the petitioner, for initiation of proceedings before the Tribunal?”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">9.<span style=\"white-space:pre\">	</span>The afore-narrated facts are not in dispute. The petitioner during his tenure as Branch Manager had disbursed several loans. Alleging certain omissions and commissions which would amount to misconduct under the Indian Bank Officer Employees (Conduct) Regulations 1976, a departmental inquiry was held against the petitioner. The result of departmental inquiry was that the Inquiry Officer held the charges to be proved and the Disciplinary Authority imposes penalty of compulsory retirement upon the petitioner. </font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">The Disciplinary Authority observes that the acts committed by the petitioner warrant severe punishment. But, taking into account his past track record and partial recovery effected, a lenient view is taken and penalty of compulsory retirement is imposed in terms of the Indian Bank Officer Employees’ (Discipline and Appeal) Regulations, 1976. Therefore, what is imposed upon the petitioner is not an extreme penalty of dismissal or removal from service. It is a penalty of compulsory retirement for which an officer employee would be entitled to terminal benefits and two-thirds of pension. The issue in the lis is not with regard to the effect of penalty of compulsory retirement that is imposed for the alleged loss or the forfeiture of entire gratuity on account of the said loss, but its aftermath.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>The Bank would resort to a strange process. It invokes the jurisdiction of the Tribunal by filing original application under Section 19 of the Act in O.A.No.487 of 2014. The cause of action, according to the Bank, arose when disciplinary action was taken against the petitioner and estimated loss caused by the acts of the petitioner. Therefore, the cause of action to approach the Tribunal was the result of a disciplinary action. The Tribunal issues notice/summons to the petitioner while ordering attachment of the property in which the petitioner was staying which was mortgaged to the Bank for a loan availed by him which had been cleared to its last pie. The petitioner then files a detailed written statement before the Tribunal bringing it to the notice of the Tribunal that the Tribunal had no jurisdiction to entertain the petition, as it was not a debt under the Act or even under the SARFAESI Act. The proceedings before the Tribunal have gone on and the petitioner has filed the subject petition on 09-08-2021 seven years after the Bank instituted proceedings before the Tribunal. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>The issue is, whether the Tribunal did have jurisdiction on the aforesaid cause of action, to entertain the application, notwithstanding the fact that the cause of action never arose against any debt and the petitioner was not a borrower.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Section 19 of the Act permits a Bank or a financial institution to recover any debt from any person by an application filed before the Tribunal within the local limits of whose jurisdiction the Bank exists. Therefore, the application before the Tribunal can be made for recovery of debt from any person.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>In terms of the definition, ‘debt’ would mean any liability which is claimed as due from any person by a Bank or firms of financial institutions as is defined, in cash or otherwise, whether secured or un-secured loan during the course of business activity undertaken by the Bank which is subsisting as on the date of filing the application and is legally recoverable on the date of filing the application. I am afraid, none of these ingredients are even present in the case at hand for the Bank to invoke the jurisdiction of the Tribunal.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>The Bank has not lent any money to the petitioner for it to be called a debt and an application under Section 19 can be filed only to recover any amount. If Section 19 and the definition under 2(g) are read in tandem, the very application before the Tribunal could not have been filed and the Tribunal had no jurisdiction to entertain the said application filed by the Bank. There was no secured interest created in favour of the Bank for it to become a secured creditor qua any property from the hands of the petitioner. The alleged acts of the petitioner could have resulted in loss caused to the Bank. The allegation of causing loss has resulted in a departmental inquiry and the department inquiry ended in imposition of penalty of compulsory retirement, which is also under challenge before this Court. Therefore, the act of the Tribunal in entertaining the application itself was, on the face of it, erroneous.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>On a coalesce of the judgments rendered by the Apex Court in the case of EUREKA FORBES LIMITED and the law as laid down by other High Courts as quoted (supra), what would unmistakably emerge is that the alleged loss caused by an employee during the course of banking business cannot be termed as ‘debt’ under Section 2(g) of the Act, as the loss so caused cannot amount to a debt and an employee cannot be termed to be a borrower. If the Bank is permitted to invoke the jurisdiction of the Tribunal in every case where loans being disbursed become non- performing assets for manifold reasons, it would have chilling effect on the officers of the Bank in performing their duties of banking business without fear. Being employees of the Bank, the officers would have definitely availed staff loan against equitable mortgage created. The Bank has not acted fair in using the equitable mortgage created by the petitioner for a housing loan availed by him. The housing loan is repaid to its last pie by the petitioner. The documents that were held by the Bank for the said loan are being used now to generate proceedings before the Tribunal. This shocks the conscience of the Court, as the Bank which is a State under Article 12 of the Constitution of India cannot display such unfairness. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>The learned counsel for the respondent/Bank has made his submission with regard to the conduct of the petitioner in approaching this Court after 7 years of registration of proceedings before the Tribunal. It is his submission that the petitioner has acquiesced in the proceedings before the Tribunal and, therefore cannot raise a contention that it is without jurisdiction after having so acquiesced. I decline to accept the said submission for the reason that the petitioner has in his written statement clearly indicated that the Tribunal had no jurisdiction. Even otherwise, consent of parties cannot clothe any forum or fora with the jurisdiction which it does not possess, as by mere consent of parties jurisdiction on any Court or Tribunal cannot be conferred. The issue on the jurisdiction will always cut at the root of the matter. If the application itself was not entertainable by the Tribunal, its acceptance or issuance of summons or any order passed thereon, are all acts without jurisdiction and a nullity in law, as answer to an issue of jurisdiction is always only one; either yes or a no and can never be a ‘may be’.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Writ Petition is allowed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '46d83ab3a8e731e4ffe3f482bda473a5.jpeg', '08a92090f146b30f891b0d02ec4d33fc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-22', 1, '', '', '2023-05-21 18:43:16', '2023-05-22 10:20:50'),
(2970, 'OWAz40ZMu1AShjrLR08sEvWxq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Building plan sanctioned under Master Plan cannot be invalidated because of the subsequent withdrawal of the Master Plan. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bhavani Yellappa Palyagar and others Vs The Chief Commissioner BBMP and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 24206 of 2022 decided on 19 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Petitioner No.1 is the absolute owner of the converted property bearing Sy. No. 153/3, measuring 1 acre and 24 guntas, situated in Doddakannahalli Village, Varthur Hobli, Bengaluru South Taluk. Petitioner No.2 is a developer who is involved in to business of real estate development. Petitioner Nos.1 and 2 entered into a joint development agreement on 20.12.2016 for the purpose of construction of apartment complex. In furtherance of which, the petitioners applied for sanction of building plan to respondent No.2–Joint Director(Town Planning) BBMP. In furtherance of which, a demand was made for deposit of plan sanction fee on 28.11.2017 and on compliance thereof, the plan came to be sanctioned on 19.01.2018 and a building license was issued. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Before putting up such a construction, the petitioners obtained No Objection Certificate from BWSSB, Karnataka Pollution Control Board, etc.,. The petitioners in furtherance of the same, commenced construction of an apartment complex. A commencement certificate came to be issued on 28.02.2019 in pursuance thereof, the construction was continued and completed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>On completion, the petitioners applied for and obtained a consent for operation from KSBCB as also electricity connection from BESCOM and made an application on 26.05.2022 for issuance of an occupancy certificate to respondent No.2. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>It is at this stage that respondent No.2 took up a contention that there was a proposed road, measuring 18 mtrs going through the property of the petitioners in terms of RMP 2015 and therefore, refused to grant the occupancy certificate. On the ground that, the petitioners have allegedly encroached upon the said proposed RMP road and that the petitioners could not have put up construction on the said proposed RMP road. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">6.<span style=\"white-space: pre;\">	</span>The petitioners therefore, submitted a representation placing on record events which transpired as also submitting that the petitioners have put up construction in accordance with the sanctioned plan there being no deviation which had been pointed out, the ground now urged by respondent No.2 is not sustainable, and as such, the occupancy certificate ought to be issued to the petitioners, No action being taken thereon, the petitioners are before this Court seeking for the aforesaid reliefs:</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>The points that would arise for consideration by this Court are, </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.1.<span style=\"white-space: pre;\">	</span>Whether merely because a provisional revised master plan 2031 was withdrawn by the State Government would all actions taken in pursuance thereto be negatived and have to be considered in terms of the revised master plan 2015? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.2.<span style=\"white-space: pre;\">	</span>Whether the petitioners in the present case are entitled for occupancy certificate at the hands of respondent Nos.1 to 3? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">11.3.<span style=\"white-space: pre;\">	</span>What Order?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space: pre;\">	</span>Answer to Point No. 1: Whether merely because a provisional revised master plan 2031 was withdrawn by the State Government would all actions taken in pursuance thereto be negatived and have to be considered in terms of the revised master plan 2015? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">13.1.<span style=\"white-space: pre;\">	</span>RMP 2015 which come into force on 25.06.2007 indicated the existence of the proposed 18 mtr wide road in the property of the petitioners. However, the provisional master plan 2031 issued on 23.11.2017, the proposed 18 mtr wide road was given up by the BDA and the said RMP 2031 did not reflect any such proposal.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">13.5.<span style=\"white-space: pre;\">	</span>The construction having been completed an application for occupancy certificate was made on 26.05.2022, the property was inspected and no deviation was found in the said construction from the plan sanctioned in other words the construction put up was as per and in accordance with the plan sanctioned.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.6.<span style=\"white-space: pre;\">	</span>The only ground on which the occupancy certificate has been refused is on account of State Government having withdrawn RMP 2031 on 20.06.2022. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.7.<span style=\"white-space: pre;\">	</span>The said rejection in my considered opinion it is bad on two counts. Inasmuch as the application has been made on 26.05.2022, the provisional master plan 2031 was still in force and as such the said application ought to have been considered in terms thereof and not on the basis of the subsequent withdrawal by the State Government of RMP 2031 on 20.06.2022. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.8.<span style=\"white-space: pre;\">	</span>Secondly, the BBMP having issued the plan sanction, commencement certificate the petitioners having acted on the plan sanctioned and put up construction by investing its monies, the petitioners cannot be deprived of the usufructs of the same merely on account of the State Government withdrawing RMP 2031 when all the authorities have proceeded with on the basis of provisional master plan 2031 by issuing a plan sanction and commencement certificate. There is no allegation as against the petitioners as regards having constructed illegally, without plan sanction or having deviated from the plan sanctioned. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.9.<span style=\"white-space: pre;\">	</span>The petitioners has acted upon plan which has been sanctioned by respondent No.2. Thus, I am of the considered opinion on this ground also, the BBMP cannot now on the basis of withdrawal of the RMP 2031 by the State Government deprive the petitioners of the occupancy certificate. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">13.10.<span style=\"white-space: pre;\">	</span>As such, I answer point No.1 by holding that merely because the provisional revised master plan 2031 was withdrawn by the State Government it would not negate all actions taken in pursuance thereto, the actions taken in pursuance of the provisional revised master plan 2031 must be given due effect, the withdrawal thereof would not make the revised master plan 2015 applicable thereto.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>Answer to Point No.2. Whether the petitioners in the present case are entitled for occupancy certificate at the hands of respondent Nos.1 to 3? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">14.1.<span style=\"white-space: pre;\">	</span>In view of my answer to point No.1, the refusal of the granting of an occupancy certificate to the petitioners is not sustainable. The BBMP, having taken into consideration the Provisional Master Plan 2031 while sanctioning the plan, is now estopped from contending otherwise. It is not the case of the BBMP that the plan sanction was wrong, the case of the BBMP is that due to the withdrawal of the proposed Master Plan 2031 the application for occupancy certificate was to be considered as per the earlier master plan namely Revised Master Plan 2015. The petitioners having acted in terms of the plan sanction granted as per the applicable law and complied with the applicable provision including that of the sanctioned plan an occupancy certificate is required to issued to the petitioners. Hence, I pass the following</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space: pre;\">	</span>The petition is allowed, a certiorari issued quashing the endorsement dated 22.08.2022 at Annexure-Q,</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> ii.<span style=\"white-space: pre;\">	</span>a mandamus is issued directing respondent No.2 to process the application of the petitioners for occupancy certificate dated 26.05.2022 and grant the same, if construction put up is in accordance with the sanctioned plan and after examining all applicable rules therein within a period of five weeks from today at any rate before 31.5.2023.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'edff04abc56667239ab433a3d5ca5e24.JPG', 'ffde2f318a79486d34c1267feb019ff3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-22', 1, '', '', '2023-05-21 18:56:52', '2023-05-22 08:25:01'),
(2971, 'kIhc3BZ7KVRHEMy33ZERotrxo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘’Purpose of acquisition is relevant factor in determining the compensation’’. Karnataka High Court enhances compensation from Rs. 750 to Rs. 2000 for the land acquired for Court complex.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nalini Manjunath Kamat Vs The Chief Secretary Government of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>MFA 103444 of 2016 decided on 20 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice R. Devdas and Justice Rajesh Rai K.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>MFA No.102248/2015 is filed by the petitioner/appellant to modify the judgment and award passed in LAC No.87/2013 for enhancement of the award granted by the Reference Court and MFA No.103444/2016 is filed by the Government praying to set aside the judgment and award passed in LAC No.87/2013 by the Reference Court and thereby restore the award passed by the Land Acquisition Officer in award No.LAQ/CR/68/2012- 2013 dated 14.03.2013. Both appeals are filed under Section 54(1) of Land Acquisition Act, 1894 (for short’ the Act’).</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 3.<span style=\"white-space: pre;\">	</span>Brief facts which are relevant for the purpose of disposal of these appeals are that the appellant in MFA No.102248/2015 was the owner of the land measuring 2 acres 12 guntas comprised in R.S.No.34/2 of Mariyan Thimmasagar village, Hubballi taluk. The respondent No.2 in the appeal i.e. the Principal Secretary to the Revenue Department, Government of Karnataka took out Gazette Notification dated 22.11.2012 under Section 4(1) of the Land Acquisition Act, 1894 (for short ‘Act’), proposing to acquire the entire extent of the land in R.S.No.34/2 i.e to the total extent of 5 acres 15 guntas for the purpose of construction of Hubballi Court Complex. The appellant filed objections for the said Gazette Notification for acquisition of 2 acres 12 guntas of her land in R.S.No.34/2 contending that she has no other properties and if the Government provides alternative sites, she has no objection to acquire her land. However, the respondents-Authorities without considering her objection issued final Notification under Section 6(1) of the Act by confirming the acquisition and published the said Notification in Karnataka Gazette on 14.02.2013. Being aggrieved by the same, appellant filed W.P.No.77980/2013 before this Court challenging the said acquisition proceedings. However, subsequently, she withdraw the said writ petition. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>Accordingly, the respondents-authorities issued notice under Section 12(2) of the Act and thereafter award was passed in respect of the acquired land measuring 5 acres 15 guntas and quantified the compensation at Rs.57,55,749/- in total. The appellant being the owner of the land to an extent of 2 acres 12 guntas got her share of Rs.25,50,197/- out of total award amount. Nevertheless, the appellant filed her objection with the second respondent and put forth her claim to receive the award, subject to her objections and received her part of the award amount. However, it is contended that the compensation awarded towards the acquisition of her land is very meager and as such she sent a reference application dated 21.09.2013 under Section 18(1) of the Act to the respondents-authorities as per Ex.P.11 requesting the respondents–Authorities to refer the matter to the Prl. Senior Civil Judge, Hubballi for determination of correct market value and award compensation accordingly. In pursuance of the same, respondent No.3 i.e. the Deputy Commissioner, Dharwad District, Dharwad referred the matter to Prl. Senior Civil Judge, Hubballi under his letter dated 11.10.2013.   Consequently, the said matter was referred and numbered as LAC No.87/2013 on the file of III Addl. Senior Civil Judge, Hubballi and the parties are notified. The respondents-Authorities filed their objection to the reference application.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space: pre;\">	</span>Having heard the learned counsel for both the sides and having perused the documents, the point that would arise for our consideration is </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space: pre;\">	</span>Whether the Reference Court is justified in awarding the compensation of acquired land at Rs.750/- per sq. ft. and by deducting 65% towards the development charges of the acquired land?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>It is settled principle of law that while awarding compensation in land acquisition cases, the purpose for which the land is acquired must also be taken into consideration. In the present case, land is acquired for the purpose of construction of Court complex.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24.<span style=\"white-space:pre\">	</span>The next aspect of the matter is that whether the reference Court is right in deducting 65% towards development charges. The Hon’ble Apex Court in the case of Nirmal Singh and others Vs. State of Haryana Through Collector reported in (2015) 2 SCC 160 held that when it comes to deduction for development of land, it can sway back and forth and can only be determined after carefully considering the factors such as size of land, nearness to developed area etc.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25.<span style=\"white-space:pre\">	</span>Therefore, by perusal of evidence of RW-1, he has categorically admitted in his cross examination that the land in question is totally developed land. The Reference Court has also opined that the acquired land is having good potential value. But at the same time, the Reference Court come to the conclusion that more investments are required to develop the land and as such held that 60% has to be deducted towards development cost, in addition to that, 5% has to be deducted towards waiting period as per judgment reported in (2012) SCC 390. Thus, total development charge deduction is fixed at 65%. In our considered opinion, the Reference Court has erred in deducting 65% towards development charges. The Hon’ble Apex Court in the case of Himmat Singh and others Vs. State of Madhya Pradesh and another reported in (2013) 16 SCC 392 wherein, laid the law in respect of awarding compensation and deduction for the development charges. Para Nos.18 and 30 of the above said judgment are extracted below:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“18. Shri  U. U. Lalit, learned senior counsel for the appellants argued that the Reference Court and the High Court committed serious error by excluding various sale instances only on the ground that the contents thereof were not proved by examining the buyer and the seller. Shri Lalit invited the Court’s attention to Section 51-A of the Act and the judgments in Land Acquisition Officer and Mandal Revenue Officer v. V. Narasaiah (2001) 3 SCC 530, Cement Corporation of India v. Purya (2004) 8 SCC 270 and Deputy Collector, Land Acquisition, Gujarat and another v. Madhubai Gobarbhai and another (2009) 15 SCC 125 and argued that the view expressed by the Reference Court and approved by the learned Single Judge of the High Court on the admissibility and relevance of the copies of the registered sale deeds is liable to be overturned. Shri Lalit further argued that the Reference Court and the High Court committed serious error by not taking into consideration the highest value reflected in the sale deeds Exhibits P4 and P5 for the purpose of determination of compensation. In support of this argument, Shri Lalit relied upon the judgments in Rao Bahadur, Collector of Madras 1969 1 MLJ 45, State of Punjab v. Hansraj (1994) 5 SCC 734, Anjani Molu Dessai v. State of Goa (2010) 13 SCC 710, Mehrawal Khewaji Trust (Registered), Faridkot and others v. State of Punjab and others (2012) 5 SCC 432. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>30. We are not, however, oblivious of the fact that normally 1/3rd deduction of further amount of compensation has been directed in some cases. However, the purpose for which the land is acquired must also be taken into consideration. In the instant case, the land was acquired for the construction of new BG line for the Konkan Railways. This Court in Hasanali Khanbhai & Sons v. State of Gujarat and Land Acquisition Officer v. Nookala Rajamallu had noticed that where lands are acquired for specific purposes, deduction by way of development charges is permissible. In the instant case, acquisition is for laying a railway line. Therefore, the question of development thereof would not arise. Therefore, the order passed by the High Court is liable to be set aside and in view of the availability of basic civic amenities such as school, bank, police station, water supply, electricity, highway, transport, post, petrol pump, industry, telecommunication and other businesses, the claim of compensation should reasonably be fixed @ Rs 250 per sq m with the deduction of 20%. The appellant shall be entitled to all other statutory benefits such as solatium, interest, etc. etc. The appellants also will be entitled to compensation for the trees standing on the said land in a sum of Rs.59,192 as fixed. IA No. 1 of 2006 for substitution is ordered as prayed for.” </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26.<span style=\"white-space:pre\">	</span>The learned HCGP appearing on behalf of the State was unable to point to any such evidence regarding the proposed development works. We cannot ignore the fact that the land is acquired for the purpose of construction of Court complex and land under acquisition was situated in the area which was adjacent to the land already developed and within the Hubballi city. There is no question of further development. The land already has road access and drainage facility. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>27.<span style=\"white-space: pre;\">	</span>Though the learned HCGP placed reliance on the law laid down by the Hon’ble Apex Court, in the case of Haryana State Agricultural Market Board and Anr. V.Krishan Kumar and Ors. Reported in AIR 2011 SC 2540, the value of small developed plots showed to be the basis for appropriate deductions will have to be made towards the area to be used for roads, park and leveling of road etc. The case on hand differs from the facts and circumstances of law laid down by the Hon’ble Apex Court in the judgment cited supra, since the land in question is not small site and measures 2 acres 12 guntas. The other judgments relied by the learned HCGP are also relates to similar set of facts and dictum laid down in those cases do not applicable to the facts and circumstances of the case on hand. Hence, in our considered opinion, the Reference Court erred in fixing deduction of development charges at the rate of 65% for the acquired land. By careful perusal of the material and evidence available on record and as per the law laid down by the Hon’ble Apex Court in the above stated judgments, we are of the opinion that the rate of compensation fixed supra i.e. at the rate of Rs.2000/- per sq. ft must be subject to deductions towards development charges that will have to be incurred by the respondent-State. However, much development is not required for the said land, since the land is acquired for the purpose of construction of Court complex and already developed piece of land as discussed supra, we may allow 20% towards development charges on the market value of the acquired land fixed by this Court which would work out to Rs.1,600/- per sq. ft. after deduction.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 28.<span style=\"white-space: pre;\">	</span>In view of the above discussion, we modify the compensation for the acquired land of the petitioner/appellant at Rs.2,000/- per sq. ft. with a deduction at the rate of 20% towards development charges which would meets the ends of justice. Accordingly, the point for consideration is answered and the order of the Reference Court is modified.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Appeal filed by the appellant in MFA No.102248/2015 is allowed in part.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The judgment and award passed in LAC No.87/2013 dated 21.01.2015 passed by the by the III Addl. Senior Civil Judge Hubballi is hereby modified, by fixing the fair market value of the property at Rs.2000/- per sq. ft. and deduction of 20% is allowed towards development charges.</b></font></span></p>', '60d4214ea1b60819c41e835645fbbd39.JPG', 'ca8db5e182a0f1a52a9533b99a325bd4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-02', 1, '', '', '2023-05-22 12:50:12', '2023-06-02 12:30:00');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2972, '7UTihjbQp9moOF1q7nhDYkqB1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service law. In the absence of clear proof based on the evidence of witnesses in the enquiry, an adverse presumption cannot be drawn on the guilt of the accused. Karnataka High Court sets aside compulsory retirement on corruption charges. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ramesh Balappa Pammar Vs The Karnataka Power Transmission Corporation Limited and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Appeal 100169 of 2023 decided on 20 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice R.Devdas and Justice Rajesh Rai K.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2.<span style=\"white-space: pre;\">	</span>The brief facts of the case which are necessary for disposal of this appeal are that, the appellant was appointed as a Mestri in the year 1998 in the Karnataka Power Transmission Corporation Limited and subsequently promoted as a Lineman in the year 2000 and thereafter as Mestri Grade-II in the year 2004 and subsequently as Meter Reader in the year 2008. He was placed as Junior Engineer (In-charge) from the year 2010. Since then, the appellant was working as Junior Engineer (In-charge) in 33/11 K.V.Station, Chulaki, Hubballi Electricity Supply Co., Ltd., Saudatti taluk, Belagavi district. The appellant while working as In-charge Section Officer (Junior Engineer), Rural Division, HESCOM, Ramdurg, a complaint was lodged by one Bheemappa Gangappa Karadigudda to the Registrar of Karnataka Lokayukta, Bengaluru i.e. 5th respondent, alleging that, the appellant and another have demanded illegal gratification for installing new transformer. Based on the said complaint, a trap was laid by the 5th respondent Lokayukta through Lokayukta Police on 16.06.2011 and Criminal Proceedings were initiated against the appellant by registering FIR in Crime No.12/2011 for the offence punishable under Sections 7, 13(1)(d) read Section 13(2) of the Prevention of Corruption Act, 1988 and the Lokayukta Police after conducting the investigation filed charge-sheet against the appellant before the IV Additional District and Sessions Judge and Special Judge (PCA), Belagavi and the said case is numbered as Special Case No.50/2012 and the Special Judge for the Lokayukta after conducting a detail trial, by examining witnesses and also by perusal of the materials available on record, acquitted the appellant and another for the offence under Section 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 and Section 34 of IPC by vide Judgment dated 22.06.2015.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>Having heard the learned counsels for the parties and having perused the records available on record, the only point that would arise for our consideration is; </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><i>“Whether the learned Single Judge has justified in dismissing the Writ Petition No.106754/2015 filed by the appellant by confirming the order of penalty of compulsory retirement dated 23.06.2015 passed by the 2nd respondent ?</i></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">14.<span style=\"white-space: pre;\">	</span>Hence, the dictum laid down by the Hon’ble Apex Court in the above case, clarifies that if the findings of the disciplinary authority suffers from perversity, then this Court can interfere in the said order. On careful perusal of the evidence adduced before the enquiry authority, we find that P.W.1 being the complainant has totally turned hostile to the prosecution case. P.W.2 is a Pancha witness, partially supported the case. P.W.3 and P.W.4 are the shadow witnesses to the trap proceedings. However, they are not witnesses for either demand or acceptance of the illegal gratification by the appellant. The complainant who was examined as P.W.2 is said to have recorded the conversation with the appellant with regard to demand of bribe, he has not supported the case of the prosecution. Under such circumstances, the conversation recorded in the voice recorder cannot be believed unless the complainant supports the case of the prosecution. Moreover, P.W.2 has failed to identify the voice of the appellant. The evidence of complainant is most material to prove the voice of the accused which has been recorded prior to lodging of the complaint. Since none of the witnesses including the Panchas were present at the time when the conversation was recorded, their evidence in this regard cannot be accepted. In the absence of the evidence of the complainant, certainly the evidentiary value of the conversation contained over the C.D. is lost. Even otherwise, the said C.D was not sent for expert opinion by obtaining voice sample of the appellant. Hence, the C.D. cannot be relied as an electronic evidence under Section 65-B of the Evidence Act. In such circumstances, there is absolutely no evidence available on record to come to a conclusion that the appellant demanded illegal gratification from the complainant.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space: pre;\">	</span>Learned Single Judge has also relied on the Judgment of the Hon’ble Supreme Court in the case of the State Bank of India and another Vs. K.S.Vishwanath, reported in 2022 SCC Online SC 667. In paragraph Nos.7.3 to 9 it was held that “Judicial review and power of the High Court in a departmental enquiry and interference with the findings recorded in the departmental enquiry; the High Court is not a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant.” However, in the said Judgment the Hon’ble Apex Court in referring the Judgment passed in the case of State Bank of Bikanare and Jaipur Vs. Nemichand Nalwaya   reported in (2014) 4 SCC 584 held that, Courts will not interfere with the findings of fact recorded in departmental enquiry except where such findings are based on “no evidence” or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, based on the material available on record. The Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, malafide or based on extraneous considerations. By perusal of the above dictum laid down by the Hon’ble Apex Court, it is clear that, the judicial review can be exercised when the findings of the disciplinary authority suffers from perversity. As discussed supra, in the case on hand, the findings of the disciplinary authority totally suffers from perversity since the enquiry authority failed to appreciate the evidence adduced by the witnesses to prove the charges against the appellant. Since, there is no evidence placed before the enquiry authority in respect of demand and acceptance of the illegal gratification by the appellant, the enquiry authority ought not to have passed such an order and could not have submitted a report to the 2nd respondent to pass an order of penalty. Even otherwise, in the Judgment relied by the appellant in the case of Praveenkumar Vs. Union of India, reported in (2020) 9 SCC 471, which was also relied by the learned Single Judge, it was held that the power of judicial review is meant to ensure that, the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of Court. When an enquiry is conducted on charges of misconduct by a public servant, the Court/tribunal is required to determine whether the enquiry was held by a competent Officer or whether Rules of natural justice are complied with. It is further held that, the findings of the disciplinary authority, must be based on some evidence. The Court/tribunal may interfere in the said findings where the authority holds the proceedings against the delinquent Officer in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or findings reached by the disciplinary authority is based on “No evidence”. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/tribunal may interfere with the conclusion or the findings and mould the relief so as to make it appropriate to the facts of each case. Hence, by perusal of the evidence and material available on record, the dictum laid down in the said Judgment is squarely applicable to the case on hand since the findings reached by the disciplinary authority is based on “No evidence”.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>The Hon’ble Apex Court in the case of Kuldeep Singh  Vs.  Commissioner  of  Police  and  others, reported in 1992 (2) SCC 10 has held that, <i>“It is  no doubt true that the High Court under Article 226 or this Court under Article 32 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the enquiry officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of the appellate authority. But this does not mean that, in no circumstance can the Court interfere. The power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was “no evidence” to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictates of the superior authority.”</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>The Hon’ble Apex Court in the case of S.R.Tewari Vs. Union of India and another, reported in (2013) 6 SCC 602 has held that, “The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material”. The finding may also be said to be perverse if it is “against the weight of evidence”, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence of thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse.” </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space:pre\">	</span>Even otherwise, in the absence of clear proof based on the evidence of witnesses in the enquiry, an adverse presumption cannot be drawn on the guilt of the accused. It is cardinal principle of criminal law that, suspicion cannot take the place of proof without there being direct and reliable evidence against the appellant. The enquiry authority having held the charge against the appellant solely on the deposition of the pancha witnesses and in the absence of any evidence of witnesses to show that, the appellant had instructed the complainant to keep illegal gratification in his drawer and also without there being any evidence in respect of the demand of the bribe by the appellant as contended by the complainant, the enquiry authority would not have held the charges as proved. As discussed supra, the enquiry authority without appreciating the evidence deposed by the witnesses, mechanically held that the charges are proved against the appellant which is not sustainable in law as per the law laid down by the Hon’ble Apex Court in catena of Judgments including the Judgments discussed supra.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\"> 22.<span style=\"white-space:pre\">	</span>In the circumstances, we are of the considered opinion that, the impugned order passed by the 2nd respondent suffers from perversity and the same is not sustainable under law.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Writ Appeal filed by the appellant is hereby allowed;</b><br></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '967b8f0dc11598f24b149430a09679a8.JPG', 'a0816dfc57837e59825a616a0696b75b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-23', 1, '', '', '2023-05-22 13:27:06', '2023-05-23 08:58:32'),
(2973, 'MnxaiWk0qwtrd7588kKIvraEd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Detention order cannot be challenged by seeking a writ of habeas corpus when the order is already confirmed by the Government. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Alisha Abdulrzak Adur Vs The Under Secretary to the Government Home Administration Department and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WPHC 100008 of 2023 decided on 19 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice R. Devdas and Justice Rajesh Rai.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>We find that in the case of Serious Fraud Investigation Office (supra), subsequent to filing of the habeas corpus petition, the Judicial Magistrate had passed an order on 11.12.2019 remanding the respondent therein to judicial custody. That was a case where respondent was taken into custody under the provisions of Section 212(1)(c) of the Companies Act, 2013 and Section 43(2) and (3)(c)(i) of the Limited Liability Partnership Act, 2008 by Officers of Serious Fraud Investigation Office (SFIO). Various judgments including the case of Basanta Chandra Ghose vs. King Emperor reported in 1945 SCC OnLine FC 3; A.K.Gopalan vs. Union of India reported in (1966) 2 SCR 427 and the case of Sanjay Dutt vs. State reported in (1994) 5 SCC 410 were considered by the Hon’ble Supreme Court. It was noticed that in Basanta Chandra Ghose (supra), it was held that, if at any time before the court directs the release of the detenue, a valid order directing his detention is produced, the court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. In A.K.Gopalan (supra), it was held that in dealing with a petition for habeas corpus, the court is to see whether the detention on the date on which the application is made to the court is legal, if nothing more has intervened between the date of the application and the date of the hearing. In the case of B.Ramachandra Rao vs State of Orissa reported in (1972) 3 SCC 256, the Hon’ble Supreme Court held that in habeas corpus proceedings the court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>It was noticed that in Kanu Sanyal vs District Magistrate, Darjeeling and Others reported in (1973) 2 SCC 674, it was held as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>“4. It will be seen from this brief history of the writ of habeas corpus that it is essentially a procedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty.”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>In that case, it was noticed that the petition was filed before the State Level Committee had taken a decision. Therefore, it was held that the court should direct the committee concerned to take decision within a reasonable period. Nevertheless, it was held that such an order would be more in the nature of a writ of mandamus directing the State to perform its duty under the scheme. The authorities must pass a reasoned order in case they refuse to grant benefit under the scheme. Nevertheless, it was held that once a reasoned order is passed then obviously the detenu has a right to challenge that order but that again would not be a writ of habeas corpus but would be more in the nature of a writ of certiorari.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>Having regard to these settled position, we find that in the present case a prayer is made seeking writ of certiorari to quash the order dated 02.03.2023 passed by the State Government confirming the order of detention passed by the competent authority on 30.01.2023. That being the position, since the petitioner is challenging the detention order and the confirmation order, which is passed under the Bootleggers, Drugs Offenders, Gamblers, Goonda, Immoral Traffic Offenders and Slum Grabbers Act, 1985, a writ petition in the nature of habeas corpus is not maintainable. No doubt the petitioner is entitled to challenge the order of detention or order of confirmation, but that will be a writ petition seeking a writ of certiorari. Liberty is accordingly granted.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>For the reasons stated above, we uphold the objections raised at the hands of the respondent-State through learned AAG. The writ petition (habeas corpus) stands dismissed as not maintainable.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>Office is directed to take note of the order passed hereinabove and ensure that office objection is raised in such writ petitions filed in the nature of habeas corpus, wherever an order of detention or confirmation is challenged in the writ petition.</b></font></span></p>', '6757ebcd558fb0df858b227bddee1a5e.JPG', 'a2a26b464357460431960547c0ca888a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-23', 1, '', '', '2023-05-22 13:28:38', '2023-05-23 16:03:26'),
(2984, 'lX2xKzBOfypOanWxJWovH97c9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Stamp Act is a taxing statute. In interpreting such a statute, equitable considerations cannot be applied. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Shanti Bhushan thr Lrs and others Vs State of U.P. and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 8388 of 2017 decided on 25 December 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Abhay S. Oka and Justice Rajesh Bindal.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">1. The dispute involved in this appeal is about the determination of the market value of a property at Allahabad purchased by the appellants under a registered sale deed dated 29th November 2010 (the sale deed) from Hari Mohan Das Tandon (the vendor). </span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">2. According to the case of the appellants, Bungalow No.19 and Cottage No.19­A existed on the larger property. According to their case, in the year 1939, Bungalow No.19, together with appurtenant land and outhouse as well as cottage no.19­A, was taken on rent by the first appellant’s father. The appellants claimed to be protected tenants under the United Provinces (Temporary) Control of Rent and Eviction Act, 1947 and subsequently under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972. According to the case made out by the appellants, by two letters dated 2nd September 1966 and 10th September 1966, the vendor agreed to sell the sale deed property to the first appellant’s father for a total sale consideration of Rs. 1 lakh. A sum of Rs. 5000/­ was paid to the vendor as earnest money. The land was a leasehold land. It was converted into a freehold land on 8th June 2000 by virtue of a freehold deed executed in favour of the vendor. The first appellant filed a suit for specific performance in the same year.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">3. On 29th September 2010, a compromise was arrived at between the vendor and the appellants under which the appellants agreed to give up approximately 1/3rd of the land which was a part of the original agreement for sale covered by the aforesaid two letters, and agreed to take land measuring 7818 sq. meters along with existing structures for the same consideration which was fixed in the year 1966. An application to record compromise was made in the pending suit on 5th October 2010. On the basis of the said compromise, on 12th October 2010, an agreement for sale was executed by and between the parties. A compromise decree was passed by the Civil Court on 16th November 2010.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">7. According to the case of the appellants, on 1st February 2012, they paid a stamp duty of Rs.70 lakhs by demand draft as coercive action was likely to be taken against them. The appellants preferred an appeal against the order dated 6th January 2012, which was dismissed by the Appellate Authority. The appellants deposited an additional amount of Rs. 30 lakhs towards the stamp duty on 9th November 2012. The orders of the Assistant Collector and the Appellate Authority were subjected to a challenge by the appellants before the Allahabad High Court by invoking writ jurisdiction under Article 226 of the Constitution. While affirming the market value fixed by the authorities, the High Court granted limited relief to the appellants vide judgment dated 23rd January 2013. The limited relief was of setting aside the demand of the penalty of Rs.27,00,000/­. The present appeal is directed against the judgment and order of the High Court.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">17. It is not in dispute that stamp duty on a conveyance will be payable as per the market value prevailing on the date of conveyance. In fact, the appellants themselves have relied upon Article 23 of Schedule IB of the Stamp Act as applicable to the State of Uttar Pradesh. They have placed reliance on the said provision in their written submissions filed before the Assistant Collector.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">20. Hence, when a sale deed is presented for registration, the registering authority must ascertain the correct market value of the property subject matter of the document on the date of execution of the document. The stamp duty is payable on the basis of such market value and not on the consideration mentioned in the document. If the consideration mentioned is more than the market value, the stamp duty will be payable on the consideration shown. Moreover, the market value mentioned in the agreement for sale or the market value prevailing on the date of the agreement or the market value prevailing on the date on which the bargain was struck is of no relevance for deciding the stamp duty. The relevant market value is the one which prevails on the date of execution of the conveyance. Therefore, we have no manner of doubt that the appellants were under an obligation to pay stamp duty calculated on the market value of the sale deed property on the date of execution of the sale deed. </span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">21. As stated earlier, stamp duty was paid by the appellants by taking the market value of the sale deed property at Rs.6,67,200/­. This market value was fixed by adopting method used for levy of property tax under the Municipal laws. Such a value cannot be taken as the basis for determining the market value for the purposes of Article 23.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">23. Accordingly, in this case, an adjudication was made by the Assistant Stamp Collector. After inspection of the sale deed property, the Assistant Stamp Collector came to the conclusion that the description of the property in the sale deed was incorrect. The Assistant Collector observed that in the sale deed, the covered area of the land is shown as 970 meters, but actually, it was found to be 995 sq. meters. The Assistant Collector referred to four sale transactions of the year 2010 which were in relation to the properties which were a part of the same larger property wherein the market value shown was Rs. 24,000/­ per sq. meter. The determination of market value by taking the market value at Rs. 24,000/­ per sq. meters has been approved by the Assistant Collector, Appellate Authority and the High Court. </span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">24. It appears to be an accepted position that the appellants were tenants of the vendor in respect of the sale deed property. The test for determination of the market value is very simple. The market value is the one which a bona fide and willing buyer will offer. It is apparent that if the property subject matter of the sale is in possession of the vendor himself, the bona fide purchaser will offer more price for the property than the price which he may offer for a similar property which is in possession of a tenant. There is no doubt that a property in possession of a tenant or tenants will fetch lesser value in the open market than the market value of a similar property exclusively in possession of the vendor. The reason is that the buyer will not get actual possession of the portion of the property in possession of the tenant. </span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">25. The market value can be determined by the comparison method even in case of a property in possession of tenants. For example, if there is a sale transaction of a property in possession of a tenant which is comparable to the property sought to be valued and if the said sale transaction is held to be a genuine transaction, market value can be fixed on the basis of the sale transaction. If no comparable instances are found, the market value can be fixed of the property in possession of tenants by making an appropriate deduction from the market value of a comparable property in which there are no tenants</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">26. In the written submissions, the learned counsel appearing in person has suggested a formula for calculating the market value by taking into consideration the market value on the date of agreement for sale (1966) and the market value of the 1/3rd of the land given up by the appellants by way of compromise. However, this contention is obviously not acceptable as the market value of the property sold will have to be determined on the date of execution of the sale deed. </span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">28. The issue regarding the market value of the sale deed land on the date of execution of the sale deed is required to be decided by permitting the parties to adduce oral and documentary evidence. The Assistant Collector will have to ascertain whether a comparable sale instance of a property in possession of tenants is available. If it is not available, the Assistant Collector will have to ascertain the market value of the sale deed property on the relevant date again by comparison method by taking market value of a comparable property which does not have encumbrance of tenancy. Thereafter, he will have to determine the percentage of the deduction which should be made from the market value in the facts of this case. These questions are to be decided by the Assistant Collector on the basis of the evidence on record. Therefore, subject to what we have held in the judgment, we propose to send back the case to the Assistant Stamp Collector for determination of the market value of the sale deed land on the date of execution of the sale deed.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">29. The appellants have already deposited a sum of Rs.1 crore towards the amount made payable by them. The sum amount will be subject to the final adjudication by the Assistant Stamp Collector. If the Assistant Stamp Collector comes to the conclusion that the market value of the land and structures is lesser than what was determined earlier by the Assistant Stamp Collector, the appellants will be entitled to a refund of the excess amount paid with interest at the rate of 8% per annum from the date on which the amount was paid till the date on which the refund is made. If it is found that the deficit stamp duty exceeds Rs.1 crore, the appellants will have to make good the said amount. Sub­section 4A of Section 47A is in mandatory terms. The use of the word ‘shall’ make it clear that the Collector has on the deficit amount. We are not disturbing the judgment of the High Court insofar as it relates to penalty as the State Government has not challenged that part.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">30. Hence, we set aside the impugned judgment of the High Court as well as the judgment of the Assistant Stamp Collector and the Appellate Authority and remand the case for fresh consideration to the Assistant Stamp Collector. However, we confirm that part of the impugned judgment of the High Court, by which it was held that the appellants are not liable to pay penalty. The Assistant Stamp Collector shall permit the appellants to lead evidence on the issue of valuation. The Assistant Stamp Collector is directed to conclude the proceedings as early as possible and preferably within a period of six months from today.</span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\"><br></span></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><span style=\"font-weight: bolder;\">31. The appeal is, accordingly, allowed on the above terms with no order as to costs.</span></font></p>', 'c410f77f1158be4850ea376c53e663af.jpeg', '339ae92d228600379de078887449f760.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-24', 1, '', '', '2023-05-23 16:05:43', '2023-05-24 08:30:18');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2975, 'FpGy47XzWhxSr6A2u19MQ6ok6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Grant of Succession Certificate will not determine rights of parties since it merely identifies the hands in which death benefits be given and it does not entitle such person to appropriate such benefits to himself. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gangamma and others Vs Pratibha and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 200010 of 2019 decided on 21 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice C.M. Joshi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The brief facts are as below: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space: pre;\">	</span>The petitioners, who are the respondents herein, are the wife and son of the deceased Nagappa. Respondents, who are the revisions petitioners herein are father and mother of said Nagappa. The said Nagappa was working as SDA at Sangameshwar Hospital. Petitioners had separated from respondents and they were residing in separate house along with the said Nagappa. Nagappa expired on 07.11.2008 and the petitioners being Class-I heirs are entitled to receive the entire service benefits of the deceased Nagappa. As such they approached the employers of Nagappa. The employers demanded a Succession Certificate and as such the P & SC No.33/2009 came to be filed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (ii)<span style=\"white-space: pre;\">	</span>On issuance of notice to the respondents and also on publishing of citations in the newspaper, except the respondents none else had appeared before the Court. Respondents/revision petitioners thereby filed their objections admitting the relationship with petitioners, but they contended that the service benefits of the deceased is not to the extent of Rs.2,20,000/- as mentioned in the petition, but it was Rs.3,86,349/-. They also contended that they are the Class-I heirs of the deceased and as such they also have a right over the service benefits of the deceased Nagappa.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (iii)<span style=\"white-space: pre;\">	</span>After hearing both the sides, on perusal of the material on record, the learned trial Judge by taking note of the decision in the case of Shri Banarsi Dass vs. Teeku Datta1 has held that the petitioners are entitled for grant of the Succession Certificate and they only represent the hands, in which, the service benefits are to be received from the employer of Nagappa and allowed the petition. In no way learned Judge had stated that respondent Nos.1 and 2 did not have any right in the service benefits of the deceased Nagappa. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv)<span style=\"white-space: pre;\">	</span>Aggrieved by the said order, respondents approached the District Court in Misc.Appeal No.3/2011, contending that they being the father and mother of the deceased Nagappa they too are the Class-I heirs of deceased Nagappa, as such, the trial Court ought not to have issued Succession Certificate only to the petitioners. The first appellate Court held that the contention of the revision petitioners is not sustainable, since the Court has no power to go into the substantial and intricated question of facts and law while granting Succession Certificate in the light of the decision in the case of Shri Banarsi Dass vs. Teeku Datta and that the respondents are at liberty to approach the appropriate Court of law for determination of their grievance and for their share in the death benefits of deceased Nagappa. With such observations, the first appellate Court dismissed the appeal. Aggrieved by the said order, respondents have approached this Court in this revision petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>In addressing this revision, the scope of Sections 372 and 373 of the Indian Succession Act needs to be kept in view. Section 373 merely lays down that the Court is required to be satisfied that there is ground for entertaining the application namely by a person who desires to make a claim.   It is not necessary for the Court to enter upon other questions involved. The entitlement of the benefits or other issues which would be consequence of such character, which cannot be litigated upon on an application for Succession Certificate cannot be gone into.   In this regard it would be appropriate to refer the decision in the case of Brojendra Sundar Banarjee Versus Niladrinath Mukerjee and ors. In the said decision it was held as below:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">\"Sec. 372 of the Succession Act provides that an application for a succession certificate must be verified like a plaint and shall set forth inter alia the right under which the Petitioner claims and the debts and securities in respect of which the certificate is applied for. Sec. 373 provides that if the Judge is satisfied that there is ground for entertaining the application, he shall fix a date for hearing and issue certain notices and upon the date fixed or as soon thereafter as may be practicable “shall proceed to decide in a summary manner the right to the certificate.” Cls. 2 and 3 are as follows:— “(2) When the Judge decides the right thereto to belong to the Applicant, the Judge shall make an order for the grant of the certificate to him.” “(3) If the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to him to be tap intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person   having primâ facie the best title thereto.” An examination of this section leads me to the conclusion that the Legislature contemplated first that the District Judge should be satisfied not that a succession certificate will be necessary or exigible under sec. 214 or otherwise, but that there is “ground for entertaining the application.” That is to say, that it is a serious and sensible application by a person who desires to make a claim in the representative character which he seeks. Cls. 2 and 3 contemplate that the Judge shall endeavour to determine whether the Applicant is the proper person or a proper person to be clothed with the representative character and it is made abundantly clear that any intricate questions of fact or law bearing upon this question may be solved in a summary manner. The Legislature by exacting fees and by making provision for the requirement of a bond would seem to have taken away all temptation to apply for a succession certificate save in cases where a succession certificate will enable the grantee to prosecute a claim as a representative of the deceased with greater advantage than he would have been able to do in the absence of this representative right. Sec. 387 provides that no decision under this part upon any question of right between any parties shall be held to bar the trial of the same question in any suit or in any other proceeding between the same parties. In my opinion nothing could be more misguided, unnecessary and objectionable than that questions of the exact character of an Applicant\'s claim should be litigated upon an application for a succession certificate and in the absence of the party or authority against whom the claim is made. The objector in the present case, for example, is in no way damnified by the grant of the certificate. He is entitled to object before the Land Acquisition Judge to any order for payment out of the compensation money upon any ground which he can establish showing that the money was not due to the deceased but is money which, in the events that have happened, is payable to him. If he has any grievance against the order of the 18th April 1928, he has his remedy. To insist upon litigating the questions at issue between the parties under the provisions of sec. 373 of the Succession Act is merely the tactics of obstruction. On the other hand, it would clearly be inconvenient if in a case such as this the Land Acquisition Court should take the view that the nature and character of the claim was such as to entitle it to require the production of a succession certificate, while at the same time the Judge to whom application for such certificate must be made purported to decide between these parties that the debt in question could not be regarded as having been due to the deceased and that accordingly no right to represent the deceased for the purpose could be given to any one. In my opinion it is not the law that the Court upon an application for a certificate has to decide for itself, as a condition of granting the certificate, that the case is one in which the debt was due to the deceased person within the meaning of sec.</font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">214. A reasonable and sensible claim to be enabled to proceed against a third party as being a debtor of a deceased person is sufficient for the purpose of clothing the Court with jurisdiction under sec. 373 and may be regarded as ground for entertaining the application.\"</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>Even in the contentious proceeding under Section 295 of the Indian Succession Act for probates, though the proceedings shall take as nearly as possible the form of a regular suit, the issues to be tried in such suit are however limited to the question as to whether the testator was of a sound and disposing state of mind and whether Will was duly executed and attested. It is not the duty of the probate Court to consider any issue as to the title of the testator to the property with which the Will was propounded purports to deal with or the disposing power the testator may have possessed over such property. Therefore, the scope to determining the shares of the parties would not be available in a proceedings under Sections 372 and 373 of the Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>In the case on hand, the trial Court as well as the first appellate Court has considered the scope of the petition with reference to Sections 372 and 373 of the Indian Succession Act and granted the Succession Certificate in favour of the petitioners with liberty to the respondents/revision petitioners herein to approach the proper forum.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>The above observations are also in consonance with the observations made by the full Bench of the Cacutta High Court in the case of Brojendra Sundar Banarjee Versus Niladrinath Mukerjee and ors. Under these circumstances, no purpose would be served by directing for issuance of the Succession Certificate in the joint names of the petitioners and the respondents. Any how, respondent No.2/revision petitioner No.2 is not entitled for the claim as he does not fall in the category of Class-I heir. Therefore, no interference is required in this revision petition. Moreover, grant of Succession Certificate merely identifies the hands in which the death benefits/debts/securities be given and it does not entitle such person to appropriate such securities, debts, etc, to himself. Grant of Succession Certificate will not determine the rights of the parties in any way. Hence, the revision petition is bereft of any merits and therefore the same is dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9354c3b63d4b2f4b2f74d026c2509a6c.jpeg', '127aa16752b5e39c54b00d63b89eedf7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-23', 1, '', '', '2023-05-22 15:02:18', '2023-05-23 06:33:41'),
(2976, 'nEtMcz5GrvGVZTmhmScMj0PSb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 155. Mere mentioning the word ‘permitted’ is not sufficient to register the FIR unless it is expressly referred to the jurisdictional Magistrate under Section 156(3) of Cr.P.C. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pandurang R Mali and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 200200 of 2023 decided on 27 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S Rachaiah.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The petitioners being aggrieved by the proceedings against them in Crime No.141/2022 for the offences punishable under Sections 171E and 171H of Indian Penal Code (for short, ‘IPC’) preferred this petition seeking to quash the same.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>Brief facts of the case are as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The defacto complainant Mr. Rajeev Biradar-Zonal Forest Officer, Muddebihal was flying squad of the team of Muddebihal for Member of Legislative Council Election, 2022-North Western Teachers’ Constituency. It is further stated that on 13.06.2022, on credible information having been received that, some unauthorized persons illegally doing campaign and residing in Laxmi lodge. When the complainant and his team went to the lodge and they learnt that, room Nos.13, 15, 18 and 23 have been occupied by the unauthorized persons, who are canvassing unauthorizedly without obtaining permission. As such, a complaint came to be lodged for the offences punishable under Sections 171E and 171H of IPC. The police have registered the case in Crime No.141/2022 after obtaining the permission from the Magistrate.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space:pre\">	</span>After having heard the learned counsel for the respective parties and also averments of the complaint, it discloses that, the complainant has lodged a complaint before the jurisdictional police on 12.06.2022 at about 10- 30 p.m., the police have registered NC No.8/2022 for the above said offence and thereafter, referred the complainant to the jurisdictional Magistrate to lodge a complaint. Accordingly, on 13.06.2022 the complainant filed a complaint before the Magistrate and obtained permission. After obtaining the permission, on 13.06.2022, FIR came to be registered. However, in the complaint nowhere it is stated that the matter referred to the jurisdictional police in terms of Section 156(3) of Cr.P.C. to register the FIR and conduct investigation. Mere mentioning the word ‘permitted’ is not sufficient to register the FIR unless, it is expressly referred to the jurisdictional Magistrate under Section 156(3) of Cr.P.C. Therefore, the registration of FIR is held to be illegal and erroneous and liable to be quashed.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The Criminal Petition is allowed. </b><br></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '79d0a568b28ced5d8a6ace078464800b.JPG', '09e742a6a2d507da3cc887b739b6f762.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-23', 1, '', '', '2023-05-22 15:11:13', '2023-05-23 03:24:01'),
(2977, 'oghTM9Lg1EysintZjTVoMGYgv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Important Judgements delivered by Justice P.N. Desai. Karnataka High Court. ', '<p><b>Important Judgements delivered by Justice P.N. Desai<br></b></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>1. Company need not be arrayed as an accused for initiating criminal proceedings under the Factories Act 1948. </b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><a href=\"https://dakshalegal.com/judgements/actionView/d0Zo5Wk8hS6I8H2nHnINyMPsO\" target=\"_blank\">https://dakshalegal.com/judgements/actionView/d0Zo5Wk8hS6I8H2nHnINyMPsO</a> </b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>2. Payment of interim compensation applies only in respect of offences committed after Section 143(A) of N.I.Act came into force in the statutory book. </b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><a href=\"https://dakshalegal.com/judgements/actionView/7e7dwYqBTENTpmAt4bFbc66IA\" target=\"_blank\">https://dakshalegal.com/judgements/actionView/7e7dwYqBTENTpmAt4bFbc66IA</a> </b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3. Cheque bounce case. Complainant is not expected to appear on every date of hearing and the Court cannot dismiss the complaint for default on that ground. </b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><a href=\"https://dakshalegal.com/judgements/actionView/KGqfPftJkB8oyevEyMmAlhDr4\" target=\"_blank\">https://dakshalegal.com/judgements/actionView/KGqfPftJkB8oyevEyMmAlhDr4</a> </b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. NDPS Act. Owner of logistic company cannot be prosecuted if he was not aware of transportation of contraband in his vehicle. </b></span></p><p><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><a href=\"https://dakshalegal.com/judgements/actionView/UZ9NoJpaTHwvIIKfgnnQTyWBw\" target=\"_blank\"><b>https://dakshalegal.com/judgements/actionView/UZ9NoJpaTHwvIIKfgnnQTyWBw</b></a></span></p><p><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5. </span>Cheque bounce cases. Trial Courts shall verify papers before taking cognizance and provide opportunity to complainant to rectify the mistakes due to inadvertence, ignorance or negligence. Karnataka High Court.</b></p><p><a href=\"https://dakshalegal.com/judgements/actionView/8a9HdPQTAWkvLN63ceWybFpaZ\" target=\"_blank\"><b>https://dakshalegal.com/judgements/actionView/8a9HdPQTAWkvLN63ceWybFpaZ</b></a><b></b></p><p><b><br></b><br></p>', '00c0ca0fcf0723586dcdbf24b474e1bc.jpeg', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-22', 1, '', '', '2023-05-22 15:44:25', '2023-05-22 11:39:55');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2978, 'Vjo9hU7wVf7K7Scw6bN2OO4B5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Confinement of Pontiff in prison/custody cannnot be a ground to appoint Administrator to the Mutt in the absence of legislative sanction. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sri Jagadguru Murugharajendra and others Vs The Chief Secretary and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. 25318 of 2022 decided on 22 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>These two petitions seek to lay a challenge to the\r\nGovernment Order dated 13.12.2022 whereby, the\r\nRespondent-Mr.P.S.Vastrad, a retired IAS officer, has been\r\nappointed as the Administrator for the Mutt &amp; the institutions\r\nrun by it. W.P.No.25316/2022 is filed by the Vidya Peetha,\r\nrepresented by its President, and the Mutt is represented by its\r\nPontiff Dr.Shivamurthy Murugha Sharanaru through the GPA\r\nholder Sri.Basavaprabhuswamigalu. W.P.No.25318/2022\r\nis filed by three individuals who claim to be the devotees\r\nof Mutt.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2.&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Government specifically mentions that this Order has\r\nbeen made in exercise of the power availing under Articles\r\n162 &amp; 31A of the Constitution of India inter alia for\r\nsafeguarding the movable &amp; immovable properties of the\r\nMutt and to prevent misappropriation of funds of the\r\ninstitution and further, to conduct the overall management\r\neffectively inasmuch as the Pontiff has been facing\r\ncriminal cases is in judicial custody since 1.9.2022.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. FACTS IN BRIEF:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(a) Petitioner-Mutt originally established by\r\nAllamaprabhu, a 12th-century mystic saint and a poet who\r\nprolifically composed Vachanaas in Kannada. This saint\r\nand his order propagated the unitary consciousness of Self\r\nand Shiva, being the prominent patrons of the Lingayat\r\nmovement that reshaped medieval Karnataka. Later, this\r\nMutt was rejuvenated in the 16th century by another saint\r\nof great repute Sriman Niranjan Jagadguru Mahaswami\r\nand since then, it has been conducting anna daasoha &amp;\r\nakshara daasoha to all sections of the society regardless of\r\nreligion, region, race, caste, gender, place of birth or the\r\nlike. By a long &amp; committed yeoman service, it has carved\r\nout a niche for itself. Several educational institutions\r\nhaving been founded are being run successfully under the\r\naegis of Mutt since decades.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(b) It is pertinent to state that, in Karnataka,\r\nseveral such Veerashaiva/Lingayat Mutts have been\r\nrelentlessly providing education, professional, vocational &amp;\r\ntraditional to lakhs of people on affordable costs and that&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">thousands of students prosecute their studies with free\r\nboarding &amp; lodging facilities, sans discrimination on any\r\ngrounds whatsoever. Nobody can justifiably dispute this. It\r\nis incongruous not to acknowledge the enormous\r\ncontribution made by the Veerashaivas/Lingayats in\r\ngeneral and their Mutts in particular, inter alia to the field\r\nof education. Siddhaganga Mutt, Suttur Mutt &amp; Murugha\r\nMutt have been in the forefront. It is no exaggeration to\r\nstate that without that, the constitutional aspiration of\r\neradicating illiteracy and its associated evils, would have\r\nremained merely as lofty ideals.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(d) Petitioner-Mutt which practises &amp; professes\r\nBasava Tatva, mainly founded on humanitarian principles,\r\nhas mediately established 105 educational institutions,\r\nprofessional &amp; other, and that they are managed &amp;\r\nadministered by the Petitioner-Vidya Peetha. It is not in\r\ndispute that the Pontiff has the decisive role in all that&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">These institutions have produced thousands of meritorious\r\ncandidates, many of whom serve in public &amp; private\r\nemployment. Mutt has a registered Trust Deed dated\r\n26.11.2010. Petitioner-Dr.Shivamurthy Murugha\r\nSharanaru came to be installed as Pontiff of the Mutt on\r\n31.1.1991 by his predecessor Sri Mallikarjuna Swamaji,\r\nagain a tall saint of Basava Tatva Darshanaas. The\r\nPetitioner-Vidhya Peetha has been registered as a society\r\nunder the provisions of the Karnataka Societies\r\nRegistration Act, 1960 vide Certificate of Registration\r\ndated 21.6.1966. The Pontiff happens to be the President\r\nof the Trust, ex officio and he is described as the ‘supreme\r\nauthority’.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n(e) On 13.10.2022, Nazarbad Police, Mysore,\r\nregistered against the Petitioner-Pontiff Crime\r\nNo.155/2022 for the offences punishable under sections\r\n376(2)(i), 376(3), read with section 149 of Indian Penal\r\nCode, 1860 and under sections 17, 5(1) &amp; (6) of the\r\nProtection of Children from Sexual Offences Act, 2012\r\n(hereafter ‘POCSO Act’). The Fast Track Court at Mysore\r\ntransferred the investigation to the Rural Police,\r\nChitradurga, on the ground of territoriality of offences.\r\nAccordingly, the said Police have registered Crime\r\nNo.387/2022 for the same offences. The Pontiff &amp; others\r\nhaving been arrested are continuing in judicial custody.\r\nThe investigation having been completed, the Police have&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">filed the two charge sheets as ‘A’ &amp; ‘B’ in Crime\r\nNo.387/2022. The Spl. Court at Chitradurga, having taken\r\ncognizance of alleged offences, has registered\r\nSpl.C.(P).No.181/2022 &amp; Spl.C.(P).No.182/2022.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. I have heard at length the learned counsel\r\nappearing for the parties and perused the Petition Papers;\r\nI have adverted to relevant of the Rulings prolifically cited&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">at the Bar. The following questions are broadly framed for\r\nmy consideration:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>1.\r\nWhether the impugned order dated\r\n13.12.2022 whereby, the government in\r\nexercise of its executive power under\r\nArticle 162, has appointed the\r\nAdministrator to the Mutt &amp; to Vidya\r\nPeetha, is liable to be voided for want of\r\ncompetence…?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 2.\r\nWhether Petitioner-Pontiff facing criminal\r\ncases and presently continuing in judicial\r\ncustody, can exercise managerial\r\nfunctions of his office/position or as the\r\nPresident of the Trust in question by way\r\nof delegation…?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n 3.\r\nWhether the impugned order appointing\r\nthe Administrator to the Mutt &amp; the\r\ninstitutions, is violative of the\r\nFundamental Rights guaranteed under\r\nArticle 26 of the Constitution and\r\ntherefore, is liable to be quashed…?&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. This court is inclined to grant indulgence in the\r\nmatter for the following reasons:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(B) AS TO PETITIONER-MUTT BEING A\r\nRELIGIOUS DENOMINATION UNDER ARTICLE 26 OF\r\nTHE CONSTITUTION:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) While Article 25 guarantees freedom of\r\nconscience and the right to profess, practice &amp; propagate\r\nreligion, the provisions of Article 26 complimentarily\r\nprotect such right of every religious denomination. Under\r\nclause (a) of Article 26, every such denomination can\r\nestablish &amp; maintain institutions for religious &amp; charitable\r\npurposes; the registered Trust Deed is an enabling\r\ninstrument in this regard and that several educational\r\ninstitutions have been established under the aegis of Mutt,\r\nis not in dispute. Clause (b) gives the right to manage\r\nreligious affairs of the denomination, on its own; clause (c)\r\nenables the denomination to own &amp; acquire property and\r\nclause (d) empowers it to administer such property. A\r\nreligious denomination or organization enjoys almost a\r\ncomplete autonomy in the matter of deciding as to what\r\nrites &amp; ceremonies constitute essential religious practice\r\naccording to the tenets of religion concerned and that the\r\nState has no authority to meddle with such decisions vide\r\nCOMMISSIONER OF POLICE vs. ACHARYA&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">JAGADISHWARANANDA AVADHUTA.&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) The submission of Petitioners’ counsel Mr.Patil\r\nthat the “Lingayat community in the State by itself\r\nconstitutes a separate religion like Jainism, Buddhism,&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Sikhism, etc” is hotly contested; it is told at the Bar that a\r\nsimilar question is being debated in a pending Public\r\nInterest Litigation. Added, both the Mutt &amp; its Pontiff being\r\nthe Petitioners, even otherwise, have denominational\r\nrights of the kind. Therefore, this question does not merit\r\nconsideration in these cases. That being said, it cannot be\r\ncontroverted that Veerashaiva/Lingayat Mutt itself being a\r\nreligious denomination, in the light of law declared in\r\nSHIRUR MUTT, supra, enjoys the constitutional guarantees\r\ninter alia enacted in Article 26; the mathaadhipati being\r\nthe religious &amp; temporal head of the Mutt can exercise\r\nthese rights, of course subject to regulation/restriction by\r\n‘law’.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(D) AS TO STATUS &amp; RIGHTS OF A PONTIFF IN\r\nCUSTODY:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n(i) Mr.Patil assisted by the advocates on record for\r\nthe Petitioners submitted that the doctrine of innocence of\r\naccused comes to the rescue of the status of an accused\r\nas mathaadhipati. This was repelled by the other side. It\r\nwas an English Barrister Sir William Garrow (1760-1840),\r\nwho coined the ‘presumption of innocence’ in Criminal\r\nJurisprudence, having been inspired by a French Cannon\r\nlawyer Jean Lemoine (1250-1313) from whom this idea\r\noriginated. The House of Lords in WOOLMINGTON vs.\r\nDPP18 described this presumption ‘as being the golden\r\nthread running through the web of English Criminal Law’.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">An accused is presumed to be innocent till proven guilty,\r\nhas been firmly established even in Indian Jurisprudence\r\nsubject to all just exceptions. It is a matter of common\r\nknowledge that not only accused persons in detention but\r\neven convicts serving the sentence exercise proprietary\r\nrights of ownership.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Electoral Jurisprudence as obtaining in the country\r\ndoes not bar a person in detention from contesting as&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">candidates inter alia in the elections to the Parliament &amp;\r\nState Legislatures, subject to all just exceptions. Similarly,\r\nthe Service Rules promulgated for regulating the conduct\r\nof the persons in public employment such as civil servants\r\nnormally provide for automatic suspension, if they are\r\narrested &amp; detained for a specified period.</span><span style=\"font-size: 12pt;\">&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(E) AS TO EXECUTIVE POWER OF THE STATE\r\nAND THE MEANING OF ‘LAW’:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(vi)....&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the fact matrix of the said case, a finding was recorded\r\nas to no curtailment of rights of mathaadhipati having\r\nhappened. In other words, the case turns out to be more\r\nfact-specific and it is apparently in variance of facts of the\r\ncase at hands, wherein there is a rank interference of the\r\nState to the substantial exclusion of Petitioner-Pontiff, as if\r\nhis status and powers as such have been kept under\r\nsuspended animation on account of detention per se. It is\r\nthis distinct question which constitutes the jugular vein of\r\nthe case and therefore, keeps distance from the ruling&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cited at the Bar. Therefore, it cannot be construed as\r\nlaying down any concrete ratio supportive of the case of\r\nRespondent-authorities, mainly because the Bench did not\r\nchoose to invalidate the appointment of Administrator.\r\nAdded, no discernible ratio arises even by applying the\r\npopular tests like Wambaugh’s Test26 or Dr.Upendra Baxi\r\nTest. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(F) AS TO EXECUTIVE POWER OF THE STATE\r\nUNDER ARTICLE 162 OF THE CONSTITUTION, ITS\r\nNATURE, SCOPE &amp; AVAILABILITY:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) True, it is that section 78 of the 1997 Act\r\nrepealed as many as seven enactments of which, the\r\nBombay Public Trusts Act, 1950 Madras Hindu Religious\r\nand Charitable Endowments Act, 1951, the Mysore\r\nReligious and Charitable Institutions Act, 1927, the Coorg\r\nTemple Funds Management Regulation, 1892 &amp; Coorg\r\nTemple Funds Management Act, 1956, are relevant, others\r\nnot being applicable. It is also true that the 1997 Act is not\r\napplicable inter alia to Mutts, as such; section 1 of\r\nKarnataka Amending Act No.27 of 2011 reads: “The maths\r\nand temples attached to the maths are kept out of the\r\npurview of the Act, as the maths are headed and managed\r\nby mathadipathis.” This provision unmistakably evinces\r\nthe legislative intent to immune Mutts as a distinct class of\r\nreligious institutions from State control &amp; regulation.&nbsp;<span style=\"font-size: 12pt;\">Therefore, the repeal of the subject statutes does not\r\ncreate legislative vacuum in the field so that it is reoccupied with executive power. In other words, despite\r\nsuch repeal, the field continues to be occupied by law\r\nnamely the 2011 Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n(iii) Added to the above, the affairs of Mutt being\r\ninter alia governed by the registered Trust Deed, section\r\n92 of CPC, becomes invocable, the Mutt in question\r\nadmittedly answering description of the Trust of the kind\r\nin the said provision. It is the specific case of Petitioners in\r\ngeneral and Mutt &amp; its Pontiff in particular that the fact\r\nmatrix which eventually resulted into the appointment of\r\nAdministrator, would indisputably take the matter to the\r\nprecincts of this provision and therefore, a representative\r\nsuit is maintainable. Mr.Patil repeatedly said that if\r\nanybody has grievance arising out of an extraordinary\r\nsituation like the one at hands because of Pontiff being in\r\njudicial custody, suit remedy with leave of the court can be\r\nresorted to. This section in so many words enables even\r\nthe office of AG to maintain such a suit sans sanction. The&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Apex Court in SYED MOHD. SALIE LABBAI VS MOHD.\r\nHANIFS28, observed that when there is allegation of breach\r\nof any express or constructive trust created for a public\r\ncharitable or religious purpose like the Petitioner-Mutt or\r\nwhere the directions of the Court are necessary for the\r\nadministration of such a trust, suit of the kind is\r\nmaintainable. What is enacted by the Parliament in section\r\n92 of CPC thus occupies the field and as a consequence,\r\nthe executive power otherwise availing to the State under\r\nArticle 162, is denuded. Therefore the impugned order is\r\nwithout jurisdiction.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(G) AS TO ARGUMENT OF GRAVE\r\nCONSEQUENCES OF QUASHING THE APPOINTMENT\r\nOF ADMINISTRATOR:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Learned AG appearing for the State and the\r\nlearned Sr. Advocate appearing for the Administrator eo\r\nnomine, contended that when Pontiff of a Mutt is in\r\ncustody, he will not be in a position to discharge his\r\ntemporal duties relating to administration &amp; management\r\nof the Mutt and the educational institutions run under its\r\naegis; the Mutt having wealth of more than a thousand\r\ncrore rupees, as of prudence &amp; necessity, requires a full\r\ntime Administrator; the government having given the land&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and huge public funds for the benefit of Mutt, has a\r\nlegitimate say in the matter of administration &amp;\r\nmanagement of at least non-secular activities of the Mutt\r\nand of the institutions. Both they vividly highlight the\r\nconsequences of absence of Pontiff owing to detention.\r\nLearned Sr. Advocate appearing for the Petitioners does\r\nnot agree with the proposition of having an Administrator\r\nappointed by the government, that too in gross violation of\r\nprinciples of natural justice. He submitted that when the\r\nLegislature intends no interference in the affairs of Mutt,\r\nbe it religious or temporal, the argument of ‘undesirable\r\nconsequences’ does not avail to the State.&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">He hastens to\r\nadd that law should be obeyed even if heavens do fall.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) It hardly needs to be stated that Mutts &amp; temples\r\nare central to ‘Hindu Dharma in its generic sense’ and to\r\nits offshoot religions, as well. They play a pivotal role in\r\nthe lives of people in several ways. Mutts and their\r\nparampara contribute in a great measure to the\r\npreservation of civilizational values, too. As already\r\nmentioned above, they also undertake activities that\r\nwould benefit the public at large. Normally, how a\r\nmathaadhipati is to be appointed is a matter governed by\r\nthe customs &amp; traditions obtaining in the Mutt. In the\r\nabsence of Pontiff because of death, disease or detention,\r\nwhat should happen is ordinarily be left to the devotees or\r\nthe prominent members of the community concerned,\r\nshould statute or some instrument of law does not provide\r\nfor the solution. There is no such statute, and the Trust\r\nDeed is silent about the matter. It is nobody’s case that&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the devotees or the prominent members of the community\r\nwill not be able to take a call in the matter. No explanation\r\nis offered from the side of State as to why the office of AG\r\nwas not asked to institute a representative suit under\r\nsection 92 of CPC, either. It is true that it is open to the\r\ndevotees or the members of Veeraishaiva/Lingayat\r\ncommunity to avail the remedy of representative suit.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(iv) The 1997 Act as amended in 2011 which aspect\r\nis discussed in detail supra, the Legislature intends to\r\ninsulate the Mutts from State interference, be it\r\nadministrative functions, religious rites or other temporal\r\nactivities. If that be so, it is un-understandable to say the\r\nleast as to how an Administrator can be appointed by\r\ngovernment of the day. An argument to the contrary\r\ncannot be sustained without imperilling the constitutional\r\nguarantees availing to religious denominations &amp; Pontiffs;\r\nsuch an arguments and it also runs counter to a seventy\r\nyear jurisprudence, as developed by the Apex Court since\r\nSHIRUR MUTT. The State and its functionaries should\r\nrealise that by their very nature they can not be a can not&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be panacea to all the evils in society. As of necessity, it\r\nshould leave religious institutions to solve their problems\r\non their own by appropriate measure, such as community\r\nmediation/conciliation or judicial process, of course subject\r\nto all just exceptions. The fact that the government has\r\nallotted some land to the Mutt and handed some funds,\r\nper se would not justify its interference, especially when\r\nthe terms &amp; conditions subject to which that has been\r\ndone, do not authorizing action of the kind. Had the\r\ngovernment indicated its intent to condition the grant of\r\nsuch a bounty, the Mutt would have had an opportunity to\r\ndecline the offer.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>In the above circumstances, I make the following:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(i) The question Nos.1, 2 &amp; 3, as framed at\r\nparagraph 6, having been answered in the\r\nnegative, these Petitions succeed and a Writ\r\nof Certiorari, therefore, issues quashing the\r\nimpugned order whereby the Government\r\nhad appointed the Administrator;\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(ii) In the peculiar circumstances of the case,\r\nthe Administrator shall continue for a short\r\nperiod of six weeks only with no power to\r\ntake any major decision that would have\r\nrepercussions beyond the said period and,&nbsp;</span><span style=\"font-size: 12pt;\">that he shall manage only the day to day\r\naffairs;\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>(iii) The above interim arrangement has been\r\nmade so that the devotees of the Mutt and\r\nthe prominent members of the community\r\nconcerned would pool their wisdom &amp; virtue\r\nto devise an appropriate plan of action for\r\nthe due administration &amp; management of\r\nthe affairs of Mutt and the educational\r\ninstitutions run under its aegis, on a war\r\nfooting;\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>(iv) The option of the devotees and community\r\nmembers to seek relief/redressal in terms of\r\nSection 92 of CPC is not foreclosed,\r\narguably, their being a case for that end,\r\nand that all contentions in that regard are\r\nkept open; Nothing observed in this order\r\nshall cast its shadow on such proceedings,\r\nparticularly when the rights of Mutt &amp; its\r\nPontiff have been adjudged in the light of\r\nconstitutional guarantees vis-à-vis\r\ngovernment, and, none else.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>(v) This Court places on record that, it is\r\nconscious of the practical difficulties the\r\nMutt and its institutions have been put to\r\nbecause of the Pontiff’s continuance in\r\njudicial custody and that his meditate\r\nadministration through delegates/agencies,\r\nis a poor solace &amp; substitute for the\r\neffective administration and management,\r\nto say the least.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>(vi) Costs made easy.&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '05fd423c1e790f084d7ea8b1f8d0fe5c.JPG', '340bd965d474a49fbc115a691529b0dd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-23', 1, '', '', '2023-05-23 12:33:56', '2023-05-23 12:33:56');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2979, 'Ldzu8cBPaPyuHtiEOhNllSGcX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“The Act is aimed at ‘distribution of material resources of community’ in the sense of Article 39(b) of the Constitution.” Karnataka High Court upholds the validity of the Karnataka Conferment of Ownership on Mulageni or Volamulageni Tenants Act.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Clarence Pais and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. 11158 of 2013 decided on 22 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S Dixit.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petitioners claiming to be owners of tenanted non- agricultural lands, are invoking writ jurisdiction of this court for laying a challenge to the constitutionality of the Karnataka Conferment of Ownership on Mulageni or Volamulageni Tenants Act, 2011 (hereafter ‘impugned Act’), whereby full ownership is sought to be bestowed on the tenants/sub-tenants on payment of compensation to be determined by the Competent Authority on normative basis. After service of notice, the Respondent-State has entered appearance through the learned AGA and the private Respondents are represented through their Advocates on record. Statements of Objections, Addl. Statements of Objections, Replies/Rejoinders & Statements of Facts have been filed voluminously.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>IV.<span style=\"white-space:pre\">	</span>Having extensively heard learned Advocates appearing for the parties and having perused the Petition Papers, in the light of relevant of the Rulings cited at the Bar, the following questions are broadly framed for consideration:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 1.<span style=\"white-space:pre\">	</span>Whether the State has legislative competence to enact the Karnataka Conferment of Ownership on Mulageni or Volamulageni Tenants Act, 2011…? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space:pre\">	</span>Whether the Presidential Assent accorded to the Act under Article 254(2) of the Constitution suffers from any infirmity…? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>If the Presidential Assent is secured to the impugned Act under Article 254(2) of the Constitution, does it extend to the protective Proviso to Article 31C, as well…? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>Whether the impugned Act is discriminatory inasmuch as it does not critically differentiate between the leases in perpetuity and leases of very long tenures such as 99 years or above and therefore falls foul of Article 14…? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>Whether the impugned Act is manifestly arbitrary & massively unjust and therefore, is liable to be struck down in the light of Triple Talaq Judgment of Apex Court…? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6.   Whether the impugned Act providing for transfer of property from muldars to mulagenidars/volamulagenidars lacks in public purpose and therefore, is violative of Articles 26 & 300A of the Constitution…?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>Whether the compensation payable to the muldars is illusory so as to render the impugned Act void under Article 300A of the Constitution…?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>V.<span style=\"white-space:pre\">	</span>AS TO THE CONCEPT OF MULAGENI LEASES:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In Mulla’s The Transfer of Property Act10, it is stated: ‘In India, a lease may be in perpetuity. In the case of a benami kabulayet or agreement of lease without a term for an annual rent, the Privy Council11 held that it operated either as a permanent lease, or as a lease from year to year and that no intermediate position was open.’ The sum & substance of the above discussion is: a mulageni in the South Canara is a kind of permanent lease or a lease in perpetuity; </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>VI.<span style=\"white-space:pre\">	</span>AS TO NATURE AND SCOPE OF THE IMPUGNED ACT:<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(b)<span style=\"white-space:pre\">	</span>The salient features of the impugned Act are: There is no dispute at the Bar as to subject lands being non-agricultural in nature. Objects and Reasons as also the very Preamble to the impugned Act employ the expression ‘mulageni leases in respect of non-agricultural lands, mainly house sites’. Sec. 1(1) gives title to the Act; sub-section (2) gives power to the State Government to specify by Notification the date with effect from which the Act shall come into force. Sub-section (3) provides for the initial application of the Act to the district of Dakshina Kannada & Udupi and authorizes the State Government to extend its application to other parts of the State. Section 2 is the dictionary clause of the Act. Sec. 3 confers full ownership on mulagenidar or volamulagenidar, who is in possession of the leasehold, by the extinguishment of interest of mulgar; the proviso preserves mortgage or charge affecting such property. Sec. 4 requires payment of compensation by the mulagenidar or volamulagenidar. Sec. 5 prescribes the procedure and Sec. 6 provides for enquiry by the Competent Authority into the claims for ownership. Sec. 7(1) provides for determination of compensation; sub-section (2) provides for compensation at the rate of 500 times of the rental where there is no ‘non-alienation clause’ and 1,000 times of the lease rent where there is such a clause. Sec. 8 provides for the issuance of certificate of ownership. Sec. 9 provides for appeal within thirty days. Sec.10(1) bars jurisdiction of Civil Courts; sub-section (2) provides for transfer of pending suits to the Competent Authority. Sec. 11 enacts removal of difficulties clause. Lastly, Sec. 12(1) is rule making power; sub-section (2) provides for laying procedure. In the case of mulageni, the lessor is called ‘mulgar’ or ‘mulidar’; the lessee is called ‘mulagenidar’; sub-lessee who is in possession, is called ‘volamulagenidar’. These terms along with other such as ‘mulageni lease’, ‘mulageni rent’, ‘Competent Authority’ are defined in Sec. 2 of the Act. The Act is published in the Karnataka Gazette dated 25.7.2012.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>VII.<span style=\"white-space:pre\">	</span>AS TO LEGISLATIVE COMPETENCE:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(d)<span style=\"white-space:pre\">	</span>This court is broadly in agreement with the submissions made on behalf of the Respondents. Reasons for this are concisely stated as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>The Five Judge Bench in INDU BHUSHAN, supra had said something about Entry 18, List II, sans articulation, and rightly so because, that case apparently related to regulation of house accommodation in cantonment area in terms of Entry 3, List I. In the middle of paragraph 13, the Bench specifically clarified the position: ‘…However, it is not necessary for us to express any definite opinion in this case on this point because of our view that the relationship of landlord and tenant in respect of house accommodation situated in cantonment area is clearly covered by the Entries in List I...’ That being the position, a passing observation on which Mr.Uday Holla heavily banked upon cannot be treated as “the law declared” for the realm under Article 141 of the Constitution nor as the ratio decidendi; In view of said clarification, remark of the kind would not partake the character of an obiter dicta, too.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space:pre\">	</span>A Division Bench of the Apex Court having examined several Entries including Entry 18, List II in JILUBHAI NANBHAI KHACHAR vs. STATE<span style=\"white-space:pre\">	</span>OF GUJARAT16, at paragraphs 10 & 12 has said as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“Land in Entry 18 is not restricted to agricultural land alone but includes non- agricultural land etc. The words “rights in” or “over land” confer very wide power which are not limited by rights between the land holders inter se or the land holder or the State or the land holder or the tenant. It is seen that restriction or extinction of existing interest in the land includes provision for abolition and extinguishment of the rights in or over the land… 12. Land in its widest signification would therefore include not only the surface of the ground, cultivable, uncultivable or waste lands but also everything on or under it. In Jagannath Singh v. State of U.P., AIR (1960) SC 1563 p. 1568, this Court held that the word \"land\" is wide enough to include all lands whether agricultural or non-agricultural land…”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv)<span style=\"white-space: pre;\">	</span>In RAM KRISHAN GROVER vs. UNION OF INDIA17, which Mr.A.G.Holla pressed into service a three Judge Bench of the Apex Court inter alia having considered INDU BHUSHAN, has made the following observations at paragraph 27:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> “A Constitutional Bench judgment of this Court in Indu Bhushan Bose v. Rama Sundari Debi and Another 8 had inter alia examined Entry 3 in List I, Entry 18 in List II and Entries 6, 7 and 13 in List III to observe that the general power of legislating in respect of relationship between landlord and tenant can be traced either under Entry 18 of List II or Entries 6 and 7 of List III. The expression ‘land tenures including the relation of landlord and tenant’ appearing in Entry 18 of List II, it was observed, was used only with reference to the relationship of landlord and tenant in respect of vacant lands and does not cover tenancy of buildings or house accommodation. Nevertheless, the Court did not give a finding in definite terms as the relationship of landlord and tenant in question was in respect of a house accommodation situated in a cantonment area and therefore was covered by Entry 3 of List I which vests exclusive power to make laws for the cantonment areas in the Parliament…”<br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In the light of above discussion, this court answers the first question as to legislative competence of the State to make the impugned Act, in the affirmative.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>VIII.<span style=\"white-space:pre\">	</span>AS TO INVALIDITY OF ASSENT OF THE PRESIDENT:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(h)<span style=\"white-space:pre\">	</span>Added, the Certificate issued by the State Government through its Secretary, Department of Parliamentary Affairs, as a matter of protocol in the proforma as prescribed in Letter No.19/23/17/JUDL dated 3.8.1972 of the Ministry of Home Affairs of Government of India, mentioned no Article under which Assent of the President was solicited. This is immensely significant. There being no repugnancy, as already observed, this Assent of the President cannot be referred to Article 254(2), stricto sensu. Further, the entire Bill as passed by the State Legislature was sent to the President, is not in dispute. That being the position, it can be safely assumed that the Assent of the President has been given under Article 201 in lieu of Assent of the Governor under Article 200 and resultantly, the Bill became a choate enactment. It is now well settled position of law that a Bill passed by a State Assembly becomes law if the Governor gives his Assent to it or if, having been reserved by the Governor for consideration of the President under Article 200, it is assented to by the President under Article 201. Therefore, Petitioners’ contention that in the absence of any question of repugnancy, the impugned Act being relatable only to Entry 18, List II, Assent of the President secured under Article 254(2) is no Assent and therefore, there is no choate statute, is liable to be rejected.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In view of the above discussion, the second question as to the argued infirmity in the Presidential Assent is answered in the negative.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>IX.<span style=\"white-space:pre\">	</span>AS TO PROTECTION OF THE IMPUGNED ACT UNDER ARTICLE 31C OF THE CONSTITUTION AND CONSEQUENT NON-INVOCABILITY OF ARTICLE 14 FOR ITS INVALIDATION:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b)<span style=\"white-space:pre\">	</span>A question arises as to whether the said Assent of the President can be construed as the one inter alia referable to the proviso to Article 31C so that the impugned Act would get insulation from attack on the grounds that traditionally fall under Article 14 of the Constitution. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(c)<span style=\"white-space:pre\">	</span>There is absolutely no material placed on record from the side of Respondents to indicate that the consideration of the Bill at the hands of the President was sought for under the Proviso to Article 31C or that the President having otherwise adverted to that aspect of the matter has accorded the Assent. In none of the letters (i.e., nine from the State Government & one from the Central Government) that constituted the official correspondence, there is any whisper as to Article 31C nor to Article 39(b) & (c). The expression ‘general term’ occurring in RAJIV SARIN vs. STATE OF UTTARAKHAND29 cannot be construed out of the context. It has to be understood keeping in view the broad theme of the said decision. That being the position, the contention that the subject Assent of the President arguably granted in general terms could be effective for all purposes including the Proviso to Article 31C and therefore, the impugned Act is insulated from challenge on the grounds that normally fall under Article 14, cannot be countenanced. An argument to the contrary would undermine the significance of the Assent and its processual sanctity which the Apex Court has emphasized several times. Courts have to keep in mind that the provisions of the Constitution cannot be construed as those of a Cattle Trespass Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(d)<span style=\"white-space:pre\">	</span>The other contention of Mr.Uday Holla as to SANJEEV COKE arguably being in variance with MINERVA MILLS, is per incuriam and therefore, the impugned Act does not get any protection in terms of Proviso to Article 31C, does not merit examination, because: Firstly the impugned Act is made to give effect to the Directive Principles in Articles 39(b) & (c) which figured in the original text of Article 31C and continue till date; if that be so, one need not see what happened to   42nd Amendment of 1976 in MINERVA MILLS. Secondly, whether such a protection extends to the laws made to give effect to all other Directive Principles contained in Part IV is being examined by a Bench of Nine Judges in PROPERTY OWNERS ASSOCIATION vs. STATE OF MAHARASHTRA. Thirdly, as already discussed above, no Assent of the President is secured to the impugned Act in terms of proviso to Article 31C. Fourthly, SANJEEV COKE, supra, having adverted to MINERVA MILLS, extends protection to the statutes that are made to give effect to any of the Directive Principles in Part IV of the Constitution, of course subject to Assent under the Proviso to Article 31C. Even in the latest decision in UNION OF INDIA vs. TARSEEM SINGH, the view of SANJEEV COKE is not diluted.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“5. But the decision of the majority in the Minerva Mills case to the effect that the 1976 amendment, extending the shield of Art. 31C to all the Directives included in Part IV was unconstitutional, so that Art. 31C is confined to its pre-1976 position, namely, protecting only laws implementing Art. 39(b)-(c), has not yet been overruled by any larger Bench.”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In view of the above, the third question as to Assent of the President being in general terms can be construed as the one given under Proviso to Article 31C and therefore, challenge to the impugned Act under Article 14 does not lie, is answered in the negative.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>X.<span style=\"white-space:pre\">	</span>AS TO IMPUGNED ACT DOING RANK DISCRIMINATION & THEREFORE, FALLING FOUL OF ARTICLE 14 OF THE CONSTITUTION:<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(f)<span style=\"white-space:pre\">	</span>Mr.Uday Holla’s contention that mulageni leases i.e., leases in perpetuity, do obtain all over the country in general and in several regions of the State in particular, is supported by a catena of decisions cited by him namely: (i)<span style=\"white-space: pre;\">	</span>mulageni in Sirsi town39; (ii) permanent tenancy in old Mysore area40; (iii) grant of permanent lease in Delhi Municipal area41; (iv) permanent lease of Connaught place on perpetual basis42; and (v) perpetual lease of ‘Srirangam Mutt’ properties43. However, his further contention that the impugned Act detrimentally singling out the lessors of mulageni lands in South Canara region is geographically discriminatory, is bit difficult to countenance. The impugned Act though initially made applicable to Mangalore & Udupi Districts, can be extended by the government vide notification, to other parts of the State.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>In view of the above, the fourth question as to the impugned act being discriminatory, is liable to be voided under Article 14, is answered in the negative.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>XI.<span style=\"white-space:pre\">	</span>AS TO IMPUGNED ACT BEING MANIFESTLY ARBITRARY & MASSIVELY UNJUST:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(f)<span style=\"white-space:pre\">	</span>Petitioners’ contention as to impugned Act being massively unjust, is not substantiated. It is not that the impugned Act snatches away their possession & enjoyment and put the property at the hands of mulagenidars/volamulagenidars. It is tritely said: ‘possession, is nine points of law’52. The lessees of mulagenies have been possessing and enjoying the properties since decades and many of them have put up structures by investing money. Whatever development has been made, does not ipso facto belong to muldars, who will be paid compensation for only the land lost. After all, law shuns concentration of material resources at the hands of few. If distribution of these resources amongst the needy is aimed at, the holders cannot complain especially when the compensation is being paid. The impugned legislative measure is fair both in substance and procedure. The contention of the kind as advanced by the Petitioners can be answered also by adverting to what an acclaimed American jurist T.M.Cooley53 [1824-1898] wrote. The same is profitably reproduced:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>“The rule of law upon this subject appears to be, that, except where the constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the State, unless those rights are secured by some constitutional provision which comes within the judicial cognizance. The remedy for unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil; but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of right, reason, and expediency with the law-making power…”</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>In view of the above, the fifth question, as to the impugned Act being manifestly arbitrary and massively unjust, is liable to be struck down as violating Article 14 of the Constitution, is answered in the negative.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>XII.<span style=\"white-space:pre\">	</span>AS TO IMPUGNED ACT PROVIDING FOR ACQUISITION OF PROPERTY SANS PUBLIC PURPOSE AND THEREFORE VIOLATIVE OF ARTICLE 300A OF THE CONSTITUTION:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(d)<span style=\"white-space:pre\">	</span>The vehement submission of Mr.Uday Holla and other advocates appearing for the Petitioners that the number of mulagenidars being less than muldars, the idea of public interest stands logically excluded, cannot be accepted. Firstly, in matters like this, numerics are not the decisive factors as to there being public purpose. Secondly, official statistical data relating to muldars and mulagenidars which the Petitioners heavily banked upon, is confined only to Dakshina Kannada & Udupi districts; however, as already mentioned above, the Act keeps in view the vulnerable sections of mulagenidars kind throughout the State. In a particular region, number of beneficiaries of a legislation may be arguably less, but that does not assume much relevance in adjudging elements of public purpose, as rightly contended by Mr.A.G.Holla. Any legislative measure intended to give effect to any of the Directive Principles will cause some prejudice to a small section of people. This invariably & inevitably happens in any civilized jurisdiction. Ours being a constitutionally ordained Welfare State, a sectarian utilitarianism has no significant role in matters like this.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>In view of the above discussion, the sixth question, as to the absence of public purpose in the impugned Act, is answered in the negative.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>XIII.<span style=\"white-space:pre\">	</span>AS TO FRUGALITY OF COMPENSATION PAYABLE TO MULDARS AND CONSEQUENT INVALIDATION OF THE IMPUGNED ACT:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(d)<span style=\"white-space:pre\">	</span>The contention of Petitioners that real estate prices having skyrocketed, their properties are very valuable and therefore, the rental values long time ago stipulated in mulageni arrangements, cannot be the basis for determination of compensation, again is difficult to agree with. A plea of unreasonableness, arbitrariness, proportionality, etc., always raises an element of subjectivity and therefore, courts cannot strike down a statute that too when the right to property is no longer a fundamental right. In each case, courts have to examine the scheme of impugned Act, its object while treating plea of the kind. In legislative measures designed for giving effect to the Directive Principles of the kind, the compensation need not be determined on the basis of market value, nor be it just or adequate in common parlance. Different statutes prescribe different norms to determine the amount payable to the deprived owner. If these norms bear a just relation to the object of determining the compensation, further examination in judicial review is ordinarily barred. While examining the land owners challenge to the acquisition in a petition filed under Article 226 of the Constitution, courts should not adopt a pedantic approach but should decide the matter keeping in view the constitutional goals of social & economic justice. A host of factors enter the fray whilst adjudging validity of norms prescribed by the statute for determining the compensation. Pragmatically speaking, the real worth of muldars interest in the property is not that great or worthy when compared to a case of any other lease where the prospects of regaining the property by sheer efflux of time, are concrete and assuring. Where rental values decades ago stipulated in these mulagenies being admittedly frugal [in fact, that is the ground urged by the Petitioners for faltering the normative basis enacted for determining the compensation], it is unrealistic to assume that the mulagenidars/volamulagenidars would not pay such rents and thereby, venture the risk of termination of lease. Even in breach, it is not that, muldar would invariably get right of re-entry in no time, reprieve/protection arguably availing under Section 111 of the 1882 Act or the Karnataka Rent Act, 1999. Thus, the possibility of muldars getting the property to their supardi despite breach of covenants, are too remote to be mentioned. The Apex Court in a case involving mulageni i.e., AMBALAL MANSUKHRAM JOSHI vs. THE ADDITIONAL SPECIAL LAND ACQUISITION OFFICER, AHMEDABAD61 at paragraph 3 observed about the interest of muldar: ‘…The value of his right to reversion - a remote one – is a little or nothing…’. It negatived the contention as to frugality of compensation when the amount if deposited would fetch periodic interest which was in excess of periodic rentals.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(d)... Even the compensation payable to landlords under Section 40 of the Karnataka Land Reforms Act, 1961 after vesting of the agricultural land in the State is also structured on capitalization method</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>In view of this, the seventh question, as to illusory or frugal compensation payable to the muldars under the impugned Act is answered in the negative.</b></p>', '18a43ac47db08bbe84284217360f3f32.JPG', '28aa92f4d88c0555ac24f48cdc0edf4b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-24', 1, '', '', '2023-05-23 13:47:23', '2023-05-24 10:32:06'),
(2980, 'o8sy8kdDWCT41EZrnXpH91nqY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Urban Development Authority cannot demand surrender of land free of cost when the owner applies for building plan and khatha. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M. Raju Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 5075 of 2020 decided on 20 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Site No.46 measuring 60 x 100 feet situated at Durgi Gudi Badavane, Shivamogga was purchased by one Mrs. Girijamma, the mother of the petitioners, on 30.09.1957 under a registered sale deed. On 24.09.1974, a registered partition was effected, out of the said extent, 60 x 50 feet fell to the share of the said Girijamma and the remaining was divided among the petitioners to an extent of 25 x 60 feet in favour of petitioner No.1 and 25 x 60 feet in favour of petitioner No.2. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The said Girijamma executed a Will dated 15.11.1991, her share in the plot measuring 60 x 50 feet came to the share of petitioner No.1 and petitioner No.2 equally. Thereafter, the petitioners have been in possession of the aforesaid properties, which have been assigned Khata bearing Nos.519/1379, 520/520/1380, 521/521/1381 and 521/1-1381/1 situated at Ward No.5, Tilaknagar, Shivamogga. The petitioners intending to develop the said lands had sought for amalgamation of the properties, which came to be approved, and a demand for the relevant fee was made. Along with the said demand, a further demand was made that an extent of land measuring 109.80 square meters, that is roughly around 1100 square feet is to be surrendered to respondent No.3 for the purpose of road widening free of cost. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>The petitioners thereafter approached respondent No.3 for grant of building permit. When again a demand was made for surrender of 109.80 square feet, in view of the said demand and the Khatha not being issued as also plan not being sanctioned, the petitioners were constrained to relinquish the aforesaid land, on which basis a plan came to be sanctioned. It is aggrieved by the same, the petitioners are before this Court seeking for the aforesaid reliefs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>Subsection (5) of Section 32 of the KUDA Act, in my considered opinion, would come into play only when a landowner were to submit for approval a layout plan, and in the said layout plan - roads, parks, open spaces, and civic amenities are to be created and required to be surrendered by the said land owners in compliance with the applicable zonal regulations. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>Subsection (5) of Section 32 of the KUDA Act is only applicable to such areas within the layout proposed to be formed and sought for approval, Subsection (5) of Section 32 of the KUDA Act would not apply to any road situate outside the layout. 11.<span style=\"white-space:pre\">	</span>In the present case, as observed above, it is the respondents, who are proposing to widen an existing 24 meter road to a 30 meter road and this road would not have been laid by the applicant or proposed to be laid. The operative word in Subsection (5) of Section 32 of the KUDA is \"laid out by him\", this 24 feet road is an obligation to be discharged by respondent Nos.2 and 3 for access to the citizens.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>12.<span style=\"white-space:pre\">	</span>The authority cannot now seek to contend that because it has to discharge its obligation, a private citizen is to surrender his land free of cost without compensation. If at all the authorities wish to widen the road, it is always open to them to seek for acquisition of the land in terms of applicable law. A statutory authority like respondent No.2 or 3 cannot, by abusing the provisions of law contained in KUDA or the Zonal Regulations, prevail upon or coerce a citizen to part with his land free of cost. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>13.<span style=\"white-space:pre\">	</span>Looked at from another angle, the surrender was made a condition precedent for issuance of building licence and khatha as a corollary if the petitioners had not approached the authorities for issuance of khatha or building plan sanction, the condition for surrender free of cost would not have been imposed. If such applications were not made, then in the event of the corporation wanting to widen the existing road, it would only have to acquire the land required as per applicable law and widen the road. Thus merely because the Petitioners applied for building plan and khatha in order to better use their property they cannot be put at a disadvantage by the corporation demanding surrender free of cost. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>14.<span style=\"white-space:pre\">	</span>When no such authority is provided either under Subsection (5) of Section 32 of the KUDA Act or under Regulation 6.1(b) as contended by Sri.A.V.Gangadharappa, in that view of the matter, the demand made is without any authority and thereby without any jurisdiction.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space: pre;\">	</span>In that view of the matter, the petitioners having been coerced and forced to surrender their land free of cost, which could never have been sought for by the respondents, relinquishment deed is nonest.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space:pre\">	</span>The petition is allowed,</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5d030818fe9d56de0396a19575d25174.JPG', 'a9253e89e49bd1fe4604fbc965f81674.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-25', 1, '', '', '2023-05-23 15:08:22', '2023-05-25 03:08:28');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2981, 'RE96lzhihbgoHf6jHXXtthsO6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Urban Planning. BBMP cannot refuse to maintain passage/street on the ground that the said passage/street has not been handed over to the BBMP under a relinquishment deed. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>V Kamala and others Vs BBMP and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 14685 of 2014 decided on 20 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Petitioner No.1 is the sister of respondents No.4, 6 and deceased respondent No.5. Petitioner No.2 is the husband of petitioner No.1. Property bearing Corporation No.10, Ramamurthy Nagar, Banaswadi belonged to M.Venkataramaiah, S/o Muniswamappa, father of petitioner No.1 and respondents No.4 to 6. During his lifetime, Sri. M.Venkataramaiah bifurcated the above property into five portions, three of the portions viz., portion, 3, 4 and 5 were bequeathed in favour of respondents No.4, 5 and 6 and as regards remaining two portions, he had executed gift deeds in favour of petitioner No.1-Smt.V.Kamala and another daughter Smt.Sharada. There is no dispute raised by said Sharada in the present matter.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>The points that would arise for consideration are:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> i.<span style=\"white-space:pre\">	</span>Whether the BBMP can take a contradictory stand on the one hand saying that it does not have right over the property and on the other hand issuing notice calling upon respondents No.4 to 6 to remove the construction put up?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> ii.<span style=\"white-space:pre\">	</span>Whether the BBMP after considering the passage for the purpose of sanction of plan to petitioner No.1 and 2 on the backside of their property, as also for the purpose of sanction of plan to respondents No.4 to 6, can now contend that the said passage is not a public road? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>iii.<span style=\"white-space:pre\">	</span>Whether respondent No.7 could have filed a civil suit virtually challenging the notice/order issued by the Respondent No.3 dated 13.10.2011? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>iv.<span style=\"white-space:pre\">	</span>Whether the BBMP can now contend that since there is an order of injunction passed in the said suit, BBMP cannot do anything and whether the stand of BBMP is proper and correct? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>v.<span style=\"white-space:pre\">	</span>What order?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space:pre\">	</span>ANSWER TO POINT NO.1: Whether the BBMP can take a contradictory stand on the one hand saying that it does not have right over the property and on the other hand issuing notice calling upon respondents No.4 to 6 to remove the construction put up?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 22.<span style=\"white-space:pre\">	</span>ANSWER TO POINT NO.2: Whether the BBMP after considering the passage for the purpose of sanction of plan to petitioner No.1 and 2 on the backside of their property, as also for the purpose of sanction of plan to respondents No.4 to 6, can now contend that the said passage is not a public road? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22.1.<span style=\"white-space:pre\">	</span>Since both Points No.1 and 2 are connected, the same are taken up together for consideration.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>22.2.<span style=\"white-space:pre\">	</span>In the present matter, initially the BBMP had issued orders on 13.10.2011 and 18.11.2011 stating that the respondents No.4 to 7 had encroached on the public street and/or the property of the BBMP. It is thereafter that an affidavit came to be filed by the Assistant Executive Engineer sating that it is only if the land had been relinquished and/or transferred in favour of the BBMP that the BBMP would get a right over the said land/passage/road. Since no such relinquishment has been executed, BBMP has no right over the road and as such, the earlier notice which had been issued has not been acted upon.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>22.5.<span style=\"white-space:pre\">	</span>It is not in dispute that the property bearing Corporation No.10, Ramamurthy Nagar, belonged to M.Venkataramaiah and during his lifetime, he bifurcated the above property into 5 portions. Portion No.3, 4 and 5 were bequeathed in favour of respondents No.4, 5 and 6 and Portion No.1 and 2 were gifted to petitioner No.1 and her sister Sharada. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>22.6.<span style=\"white-space:pre\">	</span>The entire property measuring 49613 sq.ft., betterment charges were paid only to an extent of 43253.75 sq.ft. and no betterment charges were paid in respect of the passage measuring 40 x 159 ft. i.e., 6360 sq.ft. It is this 40 x 159 ft. passage which is shown as boundary to the property allotted to petitioner No.1 and respondents No.4, 5 and 6. It is on the basis of the said passage that there was a bifurcation of the katha which is effected by the BBMP. The original No.10 was retained to the property allotted to respondent No.4, property allotted to respondent No.5 was issued with a new No.10/3, property allotted to respondent No.6 was issued with a new No.10/4, the petitioner was allotted with a new No.10/1 and her sister was allotted with a New No.10/2. All this allocation of new number was on the basis of the passage measuring 40 x 159 ft. The sister not having raised any dispute the reason for the same is clearly apparent in that the said sister does not share any boundary with he passage/street, but is situate away from the passage/street. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>22.7.<span style=\"white-space:pre\">	</span>In terms of Section 505 of the Karnataka Municipal Corporation Act, 1976 (for short, ‘KMC Act’), the BBMP is required to act in conformity with the provisions of Karnataka Town and Country Planning Act, 1961 (for short, ‘KTCP Act’).<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>22.9.<span style=\"white-space:pre\">	</span>In terms of Section 505 (ii) of KMC Act, the Corporation shall not grant any permission, approval or sanction unless there is a compliance with the provisions of the KTCP Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>22.11.<span style=\"white-space:pre\">	</span>Thus, from a reading of Section 17 of KTCP Act, it is clear that no one can sub-divide a plot or a lay a private street without the permission of the Planning Authority. In the present case, there is no such permission under Section 17 of KTCP Act which has been obtained by M.Venkataramaiah nor such permission has been produced. Be that as it may, the BBMP has acted on the basis of the bequest made by M.Venkataramaiah as also the gift deed executed by him and allotted Municipal Nos.10/1 to 10/4 to the newly formed plots retaining the original No.10 to the property allotted to respondent No.4. Thus, the BBMP way back in the year 2006 has taken into account the intention of the testator and the donor to allot new numbers and while doing so, the passage measuring 40 x 159 ft. has also been given effect to.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>22.13.<span style=\"white-space:pre\">	</span>Though no particular permission under Section 17 of KTCP Act had been taken by M.Venkataramaiah before the sub-division of the plots, unfortunately, without insisting on such permission, the BBMP has bifurcated the katha and issued plan sanction on the basis of the said road. If at all the submission of the BBMP now being taken is to be believed and countenanced then the bifurcation of the katha could not have happened nor could the building plan sanction be issued by the BBMP to respondents No.4, 5 and 6. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>22.14.<span style=\"white-space:pre\">	</span>These actions taken in the year 2006, I am of the considered opinion that the same need not be upset now but would have to be read harmoniously inasmuch as these actions taken by the BBMP would have to be in terms of Section 505 of KMC Act be held to have been taken by recognizing the street made by M.Venkataramaiah.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>22.16.<span style=\"white-space:pre\">	</span>Looked at from another angle, what has been bequeathed by M.Venkataramaiah are the plots covered under Municipal Nos.10, 10/3, 10/4 and what has been gifted are the property covered under 10/1 and 10/2. These properties are separate properties, having separate measurements and none of these municipal numbers take within itself the passage/road measuring 40 x 159 ft. The said road stands on a completely different and independent footing and has to be regarded as such. Not being part of any of the municipal numbers allotted to the properties belonging to petitioners or respondents 4,5 and 6.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b> 22.17.<span style=\"white-space:pre\">	</span>Thus, neither petitioner No.1 nor respondents No.4, 5 and 6 let alone respondent No.7 lessee can claim independent right, title or interest over the said road so as to put up a compound wall around it as also a gate preventing access thereto. Respondents 4 to 6 could not have leased and infact have not leased the passage/street to Respondent No.7.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>22.19.<span style=\"white-space:pre\">	</span>In the above background, I answer Points No.1 and 2 as under:- </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>22.20.<span style=\"white-space:pre\">	</span>The BBMP cannot take a contradictory stand on the one hand having considered the road/passage for the purpose of sanction of plan to the petitioners, respondents No.4 to 6, issuing separate municipal numbers to the respective properties by way of a special notice bifurcating the katha and thereafter contend that the BBMP has no administrative jurisdiction over the said road. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>22.21.<span style=\"white-space:pre\">	</span>The BBMP having bifurcated Khatha, issued plan sanction and collected as also continuing to collect taxes as regards the said properties, the BBMP cannot now abdicate its responsibilities and duties on the ground that the said passage/street has not been handed over to the BBMP under a relinquishment deed.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>23.<span style=\"white-space:pre\">	</span>ANSWER TO POINT NO.3: Whether respondent No.7 could have filed a civil suit virtually challenging the notice/order issued by the Respondent No.3 dated 13.10.2011? </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>24.<span style=\"white-space:pre\">	</span>ANSWER TO POINT NO.4: Whether the BBMP can now contend that since there is an order of injunction passed in the said suit, BBMP cannot do anything and whether the stand of BBMP is proper and correct? </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>24.1.<span style=\"white-space:pre\">	</span>Points No.3 and 4 being connected to each other are taken up together for consideration:<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>24.16.<span style=\"white-space:pre\">	</span>In view of the submission made by Sri. B.S. Satyananda., that the BBMP is not exercising any jurisdiction over the roads which have not been relinquished, it would be in order for the Chief Commissioner to cause a survey of all the properties in Bangalore where roads have been formed and determine whether the BBMP would exercise its jurisdiction and superintendence over the road. This being for the reasons that a road is taken into consideration by the BBMP for issuance of katha, bifurcation of katha, issuance of plan sanction, building licence and collection of tax, it would be the bounded duty of the BBMP to maintain such roads which forms the means of access to the persons residing in and around the said road as also may be a thoroughfare was certain others. The BBMP cannot in my considered opinion after taking into account the existence of the road for all the above purposes and collecting tax thereon, abdicate the liability to maintain the road on the ground that a formal relinquishment has not been made. A survey to be carried out within a period of four moths from today and report in that regard to be filed before this Court. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>24.17.<span style=\"white-space:pre\">	</span>Hence, I answer Points No.3 and 4 by holding that a civil suit could not have been filed by respondent No.7 virtually challenging the notice/order issued by respondent No.3 dated 13.10.2011. The trial Court could not have exercised its jurisdiction on such a suit which is barred under law. The trial Court could have suo moto considered this aspect while considering interlocutory applications.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>25.<span style=\"white-space:pre\">	</span>ANSWER TO POINT NO.5: What order?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>ORDER:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>iii.<span style=\"white-space:pre\">	</span>Accordingly, the Writ Petition is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'bcc96728c97eb7e4ca927a5e40f755e5.JPG', 'd0ec216d0a6024750f381908ba51f7c4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-23', 1, '', '', '2023-05-23 15:23:12', '2023-05-24 12:36:39'),
(2982, 'RiD9f6djTtKgZlnMnfLn9uTC1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Tenants of Municipal Corporation cannot claim equity on the basis of long standing usage of the premises so as to be allotted shops in newly constructed building without going to the process of auction. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K R Vinayaka and others Vs BBMP and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 5614 of 2023 decided on 17 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The petitioners claim to be small-time businessmen and women running shops in the Gandhi Bazar market set-up by respondent No.1-Bruhat Bengaluru Mahanagara Palike (BBMP). The petitioners claim to be running businesses in the said market for several decades and have been making payment of due license fee to BBMP on a regular basis. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>By way of notice dated 22.02.2023, the BBMP had asked the petitioners to vacate the premises on the ground that the existing market building being in a dilapidated condition, was required to be demolished and re-built under the Bengaluru Smart City Program.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>The short question that would arise to consideration whether the tenant of Municipal Corporation to be claim equity on the basis of long standing usage of the premises so as to be allotted a shop in a newly constructed building without going to the process of auction.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>In terms of Section 4 of the Karnataka Transparency in Public Procurements Act, 1999, it is required for any government authority to auction any property of the government as well as to invite bids from the general public in the case of a tender. This is required in order to ascertain the value of the property and the value of the tender on the basis of public participation, the property belonging to the BBMP, in the event of any fresh allotment is made after construction of the building by using public funds, it would be required that the same be auctioned off to the highest bidder to be allotted in the particular shops. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>The petitioners, merely because they have been using the premises of the BBMP for several decades cannot automatically seek allotment of a shop without going through the process of auction.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>The submission of the Sri.Nagaraj R.C, learned counsel that the petitioners are small business men and women, they may not be able to participate in the auction cannot be a ground for direct allotment to the petitioners since the property in question is public property and the same cannot be dealt with by the Corporation in any manner contrary to the principles of Transparency Act by bringing same for auction. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>It is needles to say that the petitioners would be at liberty to participate in the said auction, and until the said auction is completed, the petitioners business being carried on in the temporary accommodation would not be disturbed, as per the submission made by Sri.N.R.Jagadeeshwara, learned counsel.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space:pre\">	</span>The petition stands dismissed, liberty is reserved to the petitioners to participate in the auction carried out. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ii.<span style=\"white-space:pre\">	</span>Until the building is completed and auction is carried out, the petitioners shall not be disturbed from the temporary allotment. Subject to payment of past dues and future license fees.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e177470baf396babbe2e9d0627fccac6.JPG', '213f7ffb84e89991fcaabc1305280e9e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-24', 1, '', '', '2023-05-23 15:38:18', '2023-05-24 06:18:16'),
(2983, '3uk2RoV5nA4B51dT1aXxgKhzY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Labour Law. Under Section 33(c)(2) of the Industrial Dispute Act, Labour Court can determine employer and employee relationship, amounts due to workman and direct the payment thereof. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Management of DR Ambedkar Para Medical Education Society Vs Shambhu Gowda.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 7032 of 2022 decided on 13 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3.4.<span style=\"white-space: pre;\">	</span>It was contended that the workman had not been paid full wages from the year 2000, as per the terms of the appointment made on 18.6.2000, which has been marked as Exhibit- A1 as also the memo dated 1.6.2007 marked as Exhibit-A4 where under his salary was fixed at Rs.5,000/- with effect from 1.6.2007, he being entitled for additional increment of Rs.1,000/- per annum commencing from January of every year till his services in the institution.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3.5.<span style=\"white-space: pre;\">	</span>On the said basis, a memo of calculation was submitted by the workman who placed on record the amounts to be paid and actual payment made and thereby deriving the balance amount due and payable, on which basis the workman sought direction to the employer to make payment of the said amount under section 33(C)(2) of the Industrial Dispute Act, 1947.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. On service of notice the employer entered appearance and submitted that </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4.1.<span style=\"white-space:pre\">	</span>the employer has come into the picture recently, the employer does not have any documents in its possession.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 4.2.<span style=\"white-space:pre\">	</span>the workman was working in an administrative capacity and as such could not claim the status of workman under Section 2(s) of the Industrial Dispute Act, 1947.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 4.3.<span style=\"white-space:pre\">	</span>It was denied that there was any salary due and payable by the employer to the workman, the claim made by the workman was denied as false. It was contended that the employer has duly paid the due salary of the workman. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4.4.<span style=\"white-space:pre\">	</span>it is only the Managing Director of the employer who has the power to issue an appointment order as also grant promotion. The order at Exhibit-A3 not having been signed by the Managing Director, the same was not a proper document all other claims were denied.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>The points that would arise for determination in the present matter are that:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 1.<span style=\"white-space:pre\">	</span>What are the powers of the Labour Court under section 33(C)(2) of the Act to decide on the claims made by a workman before it? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space:pre\">	</span>Whether the contention of the employer that there are no dues liable to be paid to the employee would be sufficient enough for the Labour court to dismiss the claim made by the workman on the grounds that they are disputes between the parties which cannot be adjudicated under section 33 (C)(2) of the I.D.Act? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>Whether in the present case, the respondent is a workman within the meaning of Section 2(s) of the I.D.Act of 1947?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 4.<span style=\"white-space:pre\">	</span>Whether the order passed by the Labour Court suffers from any legal infirmities? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>What order?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>Answer to Point No.1: What are the powers of the Labour Court under Section 33(C)(2) of the Act to decide on the claims made by a workman before it?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.3.<span style=\"white-space:pre\">	</span>Section 33(C)(1) of the I.D.Act deals with the situation where money is due to a workman under a settlement or an award or under the provision of Chapter V-A or Chapter V-B.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 12.4.<span style=\"white-space:pre\">	</span>Section 33(C)(2) of the I.D.Act deals with all claims made by a workman who is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.5.<span style=\"white-space:pre\">	</span>Section 33(C)(3) of the I.D.Act provides a methodology of calculation or computing the money value of a benefit, when the Labour Court could appoint a Commissioner who could take evidence as may be necessary and submit a report to the Labour Court for the purpose of determination of the amount. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.6.<span style=\"white-space:pre\">	</span>Section 33(C)(4) of the Act provides for the decision of the Labour Court to be forwarded to the appropriate Government as also the manner in which the application can be filed by a single workman or as also by number of workmen. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.7.<span style=\"white-space:pre\">	</span>In terms of Section 33(C)(5) of the Act, a single application could also be made by several workmen.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.9.<span style=\"white-space:pre\">	</span>In Bombay Chemical Industries case, the Hon’ble Apex Court has held that where the employment of a salesman was seriously disputed on the ground that documents are forged and false, any claim made by such employee would not come within the ambit of Section 33 (C) (2) of the Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.10.<span style=\"white-space:pre\">	</span>In Ram Chandra Dubey’s case, it was held that unless there is a pre-existing right, no claim under Section 33 (C)(2) of the Act could be made.   Merely because a claim is just and fair, the same cannot be considered under Section 33(C)(2) of the Act.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.12.<span style=\"white-space:pre\">	</span>Again in Ram Kewal’s case, the distinction between Section 33(C)(1) and 33(C)(2) of the Act has been explained. In Devaraja’s case, wherein it has categorically held that Section 33(C)(2) of the Act is wider and takes within its purview the case of the workman who claims any benefit which could be computed in terms of money. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.13.<span style=\"white-space:pre\">	</span>In the present case, the claim of the workman is that he had been appointed as a steno on 18.06.2000 on a monthly salary. Over a period of time, necessary amounts were not paid and it is on that basis that a claim was made and along with the said claim, a statement showing the amounts due month on month was placed. The amounts paid and the amount required to be paid was placed on record. Despite the same being made known to the employer, the employer did not lead any rebuttal evidence, more so, when the petitioner being the employer is deemed to have in its possession all the documents relating thereto.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.16.<span style=\"white-space:pre\">	</span>The claim of the workman flowing from the fact that the workman being appointed by the employer, such appointment and employment not being disputed, I am of the considered opinion that the decision in Bombay Chemical Industries’s case would not be applicable to the present facts and situation. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.17.<span style=\"white-space:pre\">	</span>The claim of the workman being in furtherance of the employment by the employer, such employment giving raise to a claim made by a workman under Section 33(C)(2) of the Act would amount to a claim being made on a pre- existing benefit viz., the amounts due under a pre-existing right viz., the employment. Thus, the test laid down by the Hon’ble Apex Court in Ram Chandra Dubey’s case having been fulfilled, an application in this case being made by the workman is sustainable. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.18.<span style=\"white-space:pre\">	</span>Section 33 (C)(3) of the Act as referred to supra also provides for the Labour Court to appoint a Commissioner who can take such evidence as may be necessary and submit a report to the Labour Court and the Labour Court could determine the amount after considering the report. Section 33 (C)(3) of the Act would apply to both Section 33 (C)(1) of the Act and Section 33 (C)(2) of the Act.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.20.<span style=\"white-space:pre\">	</span>The computational power under sub-Section (3) of Section 33 of the Act would indicate that the Labour Court would have powers to decide on the amounts due by computing and calculating the amounts which have been paid and the amounts which were required to be paid thereby arriving at the amounts which were due. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.21.<span style=\"white-space:pre\">	</span>Thus, it is not only a situation where the amount is quantified and/or crystalised that the provision of Section 33(c)(2) of the Act can be invoked, in my considered opinion, the Labour Court would have enough and more powers to determine if there is an employer and employee relationship and thereafter determine what are the amounts which are due to the workman and after taking into consideration the amounts paid, if there are amounts due, direct the payment thereof.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>Answer to Point No.2: Whether the contention of the employer that there are no dues liable to be paid to the employee would be sufficient enough for the Labour court to dismiss the claim made by the workman on the grounds that they are disputes between the parties which cannot be adjudicated under section 33 (C)(2) of the Act?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.2.<span style=\"white-space:pre\">	</span>The fact that the workman was required to approach the Labour Court under Section 33 (C)(2) of the Act would indicate that there is a dispute. If there was no dispute, then the employer would have made payment of the monies and the workman would have received the money and there would have been no requirement to agitate any claim or right of the workman before any forum. The reason why the workman could approach Labour Court either under Section 33 (C)(1) of the Act or Section 33 (C)(2) of the Act is on account of the amounts due not having been paid by the employer. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.3.<span style=\"white-space:pre\">	</span>It is in those circumstances, as answered to Point No.1 above, the Labour Court would have to determine whether the workman is entitled to claim any amount. If so, then the Labour Court could determine the amount, which is required to be paid. Merely because the employer denies the claim, the same would not amount to the claim not being there and/or requiring the workman to be relegated to the Civil Court. It is for the employer to produce cogent evidence to dispute the claim made by the workman. In the present case, as observed above, the workman had produced the dues claimed by him in terms of Ex.A-15 which was required to be countered by the employer. The only counter offered by the employer is that the documents are not available with the employer. As referred to supra, the same is not a ground to reject the claim of the workman. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.4.<span style=\"white-space:pre\">	</span>As such, I answer Point No.2 by holding that the mere contention of the employer that there are no dues liable to be paid to an employee would not be sufficient to dismiss the claim made by the workman nor would the contention of the employer alleging that there are disputes would require the rejection of the claim.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>Answer to Point No.3: Whether in the present case, the respondent is a workman within the meaning of Section 2(s) of the I.D.Act of 1947?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14.3.<span style=\"white-space:pre\">	</span>A perusal of the objection statement filed by the employer before the Labour Court more particularly Para 5 would indicate that the contention of the employer before the Labour Court was that the workman had never worked in the capacity of the Administrative Officer in the institution and that the workman was not qualified to be appointed as an Administrative Officer in the institution. This being a categorical submission made by the employer, the employer cannot now contend that the claimant is not a workman within the meaning of Section 2(s) of the Act on the ground that the said workman was discharging his role as an Administrative Officer. No party to a litigation can approbate or reprobate or put it in other words blow hot or blow cold. Any party to a litigation is put to election as to the stand he intends to take. The employer having taken the stand that the workman could not have been appointed as an Administrative Officer and that he did not have the capacity to work as an Administrative Officer cannot now in an appeal contend that the claim filed by the workman before the Labour Court could not have been considered since he was not a workman but was appointed as an Administrative Officer. Thus, the said contention also stands rejected. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>Answer to Point No.4: Whether the order passed by the Labour Court suffers from any legal infirmities?<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>In view of the answers to Point Nos.1 to 3 above, it is clear that there was an employer employee relationship between the petitioner and the respondent. The respondent-workman had made a claim for certain amounts of money which had not been paid. This amount was not rebutted by the employer by producing cogent evidence. The claimant coming within the purview of Section 2(s) of the ID Act, the Labour Court has rightly considered the matter and allowed the claim of the workman. Hence, I do not find any infirmity in the said order. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>Answer to Point No.5: What order? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16.1. For all the aforesaid reasons, the Writ Petition stands dismissed.</b></font></p>', '0dc5371bb3540140d07c5ff53a3ece85.JPG', '9d9ee9388e394c10f4f88592853cfa23.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-24', 1, '', '', '2023-05-23 16:00:50', '2023-05-24 03:23:17');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2986, 'DHPBTpqD5C6Vubg3udN1ihz9q', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Industrial Disputes Act. Consequential benefits upon reinstatement include earned leave and encashment of earned leave. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Karnataka State Road Transport Corporation Vs S Gangaiah.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 14466 of 2021 decided on 19 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The workman was appointed as a conductor and his services were confirmed in the year 1977. He having been subjected to disciplinary enquiry and charges being established, he came to be dismissed from service vide order dated 14.01.1991, which came to be challenged in I.D.No.34/1991. The Labour Court allowed the claim by directing the Corporation to reinstate the workman into services with continuity of service, consequential benefits and without backwages vide order dated 07.01.1993. The said award came to be implemented by the Corporation. The workman was accorded leave benefits for a period of 82 days from 14.01.1991 to 07.01.1993 with a condition that he can avail the leave but not entitled for the encashment of the said leave. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>The workman in the meanwhile retired from service on 31.07.2012. As per leave rules, he having been found to be entitled for encashment of leave for a period of 240 days and by the circular, the same was enhanced to 300 days. He was accorded leave encashment benefit for another 6 days in terms of new circular and totally, he was paid leave encashment benefit for 246 days.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 5.<span style=\"white-space: pre;\">	</span>The workman filed an application No.3/2014 before the Labour Court, Bangalore claiming a sum of Rs.1,09,210/- towards the difference in leave encashment benefits. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">6.<span style=\"white-space: pre;\">	</span>The Karnataka State Road Transport Corporation (for short, ‘RTC’) filed its objections and evidence was recorded. The Labour Court allowed the claim and directed the Corporation to pay a sum of Rs.1,09,210/- with interest @ 12% p.a. from the date of retirement till the date of payment vide its order dated 19.06.2017 at Annexure-H.   It is this order which is challenged by the RTC contending that the workman not having worked during the said period would not be entitled for encashment of leave but only entitled for availment of leave and the order passed by the Labour Court directing for payment of encashment of leave is bad in law. The workman is also before this Court seeking for the aforesaid reliefs.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>The points that would arise for consideration are: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space: pre;\">	</span>Whether the earned leave is part of the consequential benefits and if consequential benefits is ordered, would be workman entitled to the earned leave as also to encash the earned leave.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 2.<span style=\"white-space: pre;\">	</span>Whether a person is required to actually render duties to earn the earned leave</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 3.<span style=\"white-space: pre;\">	</span>What order?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space: pre;\">	</span>Answer to Point No.1: Whether the earned leave is part of the consequential benefits and if consequential benefits is ordered, would be workman entitled to the earned leave as also to encash the earned leave.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 14.<span style=\"white-space: pre;\">	</span>Answer to Point No.2: Whether a person is required to actually render duties to earn the earned leave? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">15.<span style=\"white-space: pre;\">	</span>Points No.1 and 2 are taken up together for consideration. The only dispute in the present matter is as regards the entitlement of earned leave during the period of dismissal and the encashment thereof. The contention of Ms.H.R.Renuka, learned counsel for RTC in this regard is that the workman would be entitled for earned leave but will not be entitled to encashment inasmuch as for the purpose of encashment, it is required of a workman to have actually worked and earned the leave.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space: pre;\">	</span>In the present case, the RTC has calculated and made available the earned  leave to the workman. But since the workman had superannuated, the workman wanting encashment of the earned leave had sought for such encashment which came to be refused. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">18.<span style=\"white-space: pre;\">	</span>The Labour Court in a proceeding under Section 33C(2) of Industrial Disputes Act has come to a conclusion that whenever there is a reinstatement with continuity of service, the workman will be entitled to the benefit of earned leave.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space: pre;\">	</span>Rule 35 being categorical that the former service being taken into consideration for determination of leave, the calculation in terms of Part 4A referred to supra would have to be made applicable to that period. This being so, for the reason that, if not for the illegal termination, the workman would have worked and earned the leave as provided under Rule 35. The decision in H.C.Jayaprakash’s case referred to by the learned counsel for RTC in my considered opinion would not be applicable for the reason that there was no similar Rule 35 which is applicable to Vijay Bank, who was the employer. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22.<span style=\"white-space: pre;\">	</span>The said decision in Vijaya Bank’s case is also based on the decision of the Andra Pradesh High Court in Andhra Bank’s case where again there is no similar clause as Rule 35. Infact, both in Vijaya Bank and Andhra Bank’s cases, there is no provision which is available on record to indicate that the workman on reinstatement would be entitled to earned leave. The decision of the Andhra Pradesh High Court in APSRTC’s case has taken into account the Andhra Bank’s case and come to a conclusion that the workman on reinstatement would be entitled to earned leave. In that regard, the Andra Pradesh High Court has relied upon the decision in APSRTC and another vs. S.Narasagoud4 and Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED) and others5. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space: pre;\">	</span>The Apex Court in Narasagoud’s case held that there was a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee would be entitled to all the consequential benefits and came to a conclusion that during the period of unauthorized absence, increment notionally earned could not be considered. Applying the said decision here, if the absence was otherwise then that attributed to the workman, then the consequential benefits would include all benefits including increment, earned leave, encashment of earned leave, etc., since it is on account of the employer that the employee has been prevented from working. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24.<span style=\"white-space: pre;\">	</span>In view of the above discussions, I answer Point No.1 by holding that a workman of the KSRTC dismissed from service on being reinstated with a direction permitting him to avail of consequential benefits, the said consequential benefits would include earned leave and encashment of earned leave. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">25.<span style=\"white-space: pre;\">	</span>I answer Point No.2 by holding that when reinstatement is ordered and the dismissal is held to be invalid or illegal, the workman need not be on duty to claim earned leave.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>What order?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ii.<span style=\"white-space:pre\">	</span>W.P.No.14466 filed by the workmen stands allowed. </b><br></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '52691ad38670b8b88ebfc4ddb94a91f7.JPG', 'a0677c853d137dc4ce360cfabab3e66e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-25', 1, '', '', '2023-05-24 14:07:34', '2023-05-25 08:26:24'),
(2987, 'ai0SrYO4298DYAyyrxmEwoDae', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court rejects the challenge to ban of Social Democratic Party of India in view of the alternative remedy provided under the Unlawful Activities (Prevention) Act, 1967. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Social Democratic Party of India (SDPI) Vs District Collector and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 23167 of 2022 decided on 16 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna. &nbsp;&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Facts in brief that are germane are as follows:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner claims to be a political party registered under the Representation of the People Act, 1951 and has its representation all over India, more particularly, in the Dakshina Kannada District. It is the claim of the petitioner in the petition that the political party is in the forefront of empowerment of the deprived sections of the society by divisive forces through its political movement. What drives the petitioner to this court in the present petition lies in a narrow compass. On 27-09-2022 the Government of India in exercise of powers conferred on it under sub-section (1) of Section 3 of the Unlawful Activities (Prevention) Act, 1967 (‘the Act’ for short) declared Popular Front of India (‘PFI’ for short) and its associates or affiliates or Fronts including Rehab India Foundation, Campus Front of India, All India Imams Council, National Confederation of Human Rights Organization, National Women’s Front, Junior Front, Empower India Foundation and Rehab Foundation, Kerala as unlawful associations. On 28.09.2022 Government of India directed that all the powers which are exercisable by it under Sections 7 and 8 of the Act shall be exercised by the State Governments and Union territories. It appears that Government of India later conveyed approval that the State Government and Union Territory Administrations may, by order in writing direct that any power which has been directed to be exercised by it, shall, in certain circumstances be exercised by any person subordinate to the State Government and the Union Territory.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>The aforementioned facts though not in dispute would require a little elaboration. The Government of India in the Ministry of Home Affairs issues a notification on 27-09-2022 banning PFI and many of its Associations or Affiliates or Fronts.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The notification is unequivocal. In exercise of powers conferred under Section 42 of the Act, the Central Government has directed the State Governments to pass appropriate orders under Sections 7 and 8 of the Act. Sub-sections (3) and (4) of Section 8 permits aggrieved person to knock at the doors of the District Magistrate within the local limits of whose jurisdiction where such notices or the State Government has notified certain act.&nbsp;<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.... Section 3 permits the Central Government to issue a Notification if, in its opinion any association is or has become an unlawful association on specification of certain grounds for which it is issued and other particulars if it is necessary. Section 7 deals with power to prohibit the use of funds of an unlawful association.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Section 8 empowers the Central Government to notify places used for the purpose of unlawful association. It mandates that where an association has been declared to be unlawful by a notification under Section 3, the Central Government may by notification notify any place which in its opinion is used for the purpose of such unlawful association.&nbsp; &nbsp;Sub-section (8) thereof permits any person aggrieved by any notification issued in respect of a place under sub-section (1) or by an order made under sub-section (3) or sub-section (4) may within 30 days from the date of notification or order as the case would be, make an application to the Court of District Judge within the local limits of whose jurisdiction such notified place is situated. Sub-section (3) mandates that if, in the opinion of the District Magistrate any articles specified in the list which may be used for the purpose of such unlawful association which is declared as one under Section 3, may make order prohibiting any person from using the articles under the written orders of the District Magistrate. Sub-section (4) is also to the same effect. The case on hand needs consideration on the aforesaid provisions of the Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>It is a matter of record that under Section 3 of the Act, the PFI is declared to be a banned organization. The offices of the petitioner are sealed on account of them being allegedly used by the banned organization. The statement of objections of the State is to that effect. It is the contention in the statement of objections that the offices of the petitioner situated in the places where seals have been stamped were all being used by the banned organization. Therefore, it forms a seriously disputed question of fact. The notification by which the Union Government directs the State Government to act in a particular manner cannot be considered in the absence of any evidence. More so, in the light of the contention that the State Government has acted beyond the powers conferred on it would be neither here nor there as the State Government has, on certain inputs to it, imposed seals or clamped upon the offices of the petitioner along with others. Merely because all the offices in Mangalore are sealed and not anywhere else would not mean that evidence would not be required for the petitioner to prove its case in terms of Section 8 of the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>Sub-section (8) of Section 8 (supra) has provided clear remedy to a person aggrieved, as it clearly indicates any person aggrieved which need not be a person which is the subject of any notification. It reads any person; any means each and every, aggrieved by the effect of the notification issued in respect of a place under sub-section (1) or by an order made under sub-section (3) or sub-section (4) may knock at the doors of the District Judge. The purpose is also depicted in the said provision, it is for a declaration that the place is not used for the purpose of unlawful association or set aside the order made under sub-sections (3) and (4) of Section 8 of the Act and after giving the parties opportunity of being heard decide the question. Sub-section (8) of Section 8 is unequivocal. The powers are vast and necessarily so. What is necessary to be let in before the District Judge is evidence as to how the offices are sealed as the sections empower the District Judge to consider any order made under sub-section (3) or sub- section (4) of Section 8 of the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>The notifications issued to seal the premises of the petitioner by the State Government are undoubtedly under the exercise of power under sub-sections (3) and (4) of Section (8) of the Act. Therefore, the petitioner has an alternative remedy which is statutory and necessarily to be availed of, in the peculiar facts of this case, as recording of evidence for the acts of the State is imperative. It is trite law that mere existence of alternative remedy of appeal, writ petition cannot be said to be not maintainable or entertainable. Every writ petition before this Court would be maintainable, but many a time, many a writ petition would not be entertainable, as knocking the doors of this Court under Article 226 of the Constitution of India is invoking the extraordinary, discretionary jurisdiction of this Court. Therefore, it is for the Court to exercise such discretion or not, in the given set of facts. In the teeth of the aforesaid facts which undoubtedly require evidence, I decline to entertain the petition, reserving liberty to the petitioner to urge all these contentions before the District Judge who is empowered to consider the issues under the Act itself.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Writ Petition is rejected.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '18a9a170a6db2c70dc00b81906a6ad45.jpeg', 'feac3383528102b96ba6681f1fa371cc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-25', 1, '', '', '2023-05-24 15:25:07', '2023-05-25 12:12:07'),
(2988, 'v4DaRpswmkujb2pDOyNZZ4abK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Interest of the child is paramount in cases under the POCSO Act and the Court cannot appreciate the evidence on sentimental values.” Karnataka High Court sets aside the acquittal of the sexual offender. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>State of Karnataka Vs Kamate Roshan.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 100187 of 2020 decided on 20 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.T Narendra Prasad and Justice T.G. Shivashankare Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The State has challenged the judgment and order of acquittal dated 01.01.2019 passed in Special Case No.110/2016 on the file of the I Additional District and Sessions Judge, Ballari (‘Trial Court’ for short), acquitting the accused for the offences punishable under Section 376 of IPC, Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short) and Section 3(1)(xii), 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>Briefly stated the facts of the prosecution case are that, PW-1 and PW-5 are the husband and wife and the residents of Sandur Taluk, Ballari District. PW-4 is the victim and daughter of PWs-1 and 5. They belong to Scheduled Caste. The victim is a minor aged 11 years studying in 5th standard. Accused is the neighbour of PWs-1 and 5. On 26.06.2016 at 10.00 a.m., the victim was playing near the water tank situated near their house. The accused offered chocolate and took the victim to his house, removed her clothes, so also his clothes and committed sexual assault against her. The accused knowing fully well that the victim belongs to Scheduled Caste, did commit sexual assault against her, who is a minor.   The victim since raised hue and cry, the accused left her free and she went home.   On the very night at about 9.00 p.m. she complained to her mother that she is having some discomfort in her genital. Her mother pacified her that she might have been suffering from excess of heat and it will be rectified on its own. On 27.06.2016, the victim went to the school, returned with mild Fever and she was tired. On 28.06.2016, inspite of discomfort, the victim went to school.   On that day, at about 1.00 p.m. PW-5/father of victim had gone to the school to pay fees and noticed that the victim was suffering from Fever.   Hence, he returned home and took his wife to school. By informing the teacher, they took the victim to Akshaya Clinic at Sandur. On 29.06.2016 at about 8.30 p.m., the victim again complained of some irritation in her genital. For this reason, the parents took the victim to PW-7/Dr.Chandrappa, who resides nearby, for treatment. On examination, the victim revealed to the said Doctor about the incident that had taken place on 26.06.2016 in the house of the accused at his hands. Hence, the Doctor revealed the said fact to the parents of the victim. On the very day, PW-1 visited the Police Station and set the law into motion by presenting the complaint/Ex.P1 to the Police in Crime No.118/2016. The investigation was held and charge sheet was filed. During investigation, on 02.07.2016 the accused was arrested and subjected to judicial custody till the judgment of acquittal was pronounced by the trial court.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>The trial court has recorded its findings that the case of the prosecution is that sexual assault was against the genital. However, Ex.P6/medical report points out that the accused has manipulated with his hand over the external genitalia of the victim and it discloses that there is no penetration and organs are normal including anus and hymen, there is no injury on the body of the victim. The materials placed before the court would not corroborate the version of PWs-1, 4 and 5. The FSL report does not support the prosecution case. There are contradictions in the statements of the victim before the Doctor and also the Magistrate. There are lot of contradictions, their evidence could not be considered as trustworthy. The evidence is not sufficient to prove the factum of penetrative sexual assault or aggravated penetrative sexual assault or sexual harassment by the accused on the victim. The material relied upon by the prosecution is not sufficient to prove the ingredients of the offence and no evidence is placed to explain that the accused was knowing the caste of the victim prior to the alleged incident. Hence, the provisions of Section 3 of the SC and ST (POA) Act, 1989 is not applicable and extended the benefit of doubt and acquitted the accused.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>38.   We have perused the impugned judgment. Inspite of the trial court recording that the victim was a minor, has given more importance to the omissions, contradictions found in the testimony of PWs-1, 4 and 5 and also the medical evidence. There is a clear contradiction that whether the victim was subjected to sexual assault on her genital or on anus.   While keeping this in mind, the trial court has wrongly carried away that the offence charged under Section 6 of the POCSO Act has not been established.   Section 7 of the POCSO Act is a minor offence of Section 6 of the POCSO Act and for this reason, the trial court ought to have considered, whether the offence under Section 8 of the POCSO Act has been established or not. As we noticed from the impugned judgment, there is no reference that the trial court recorded any reason that the offence under Section 8 of the POCSO Act has been established or not. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>39.<span style=\"white-space:pre\">	</span>The charge was under Section 376 of IPC and Sections 4, 6 and 8 of the POCSO Act and Section 3(1)(xii) and Section 3(2)(v) of the SC/ST (POA) Act, 1989.   The Trial Court has acquitted the accused for the offences punishable under Section 376 of IPC, Sections 4 and 6 of the POCSO Act and Section 3(1)(xii) and 3(2)(v) of the SC/ST (POA) Act.   But the impugned judgment is silent as to Section 8 of the POCSO Act. Hence, the finding recorded by the trial court is erroneous. Hence, as we discussed above, the ingredients of Section 7 of the POCSO Act is clearly forthcoming in the prosecution evidence and therefore, the accused ought to have been convicted for the offence under Section 7 of the POCSO Act. Hence, we are of the considered opinion that the trial court has committed an error in not recording any finding for the offence under Section 8 of the POCSO Act. Hence, the impugned judgment calls for our interference. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>40.<span style=\"white-space:pre\">	</span>While considering the totality of the evidence, the finding recorded by the trial court that there is no ingredients to attract offence under Section 376 of IPC, is proper. There is no evidence placed to the extent that the accused was aware of the caste of the victim and knowing fully well that she belongs to Scheduled Caste, he has committed the act of sexual assault, which attracts Section 3 of SC/ST (POA) Act. There is no evidence explaining the penetrative sexual assault as defined under Sections 4 and 6 of the POCSO Act.   Hence, the finding recorded by the trial court for acquitting the accused for the offences under Section 376 of IPC, Section 3(1)(xii), 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and Sections 4 and 6 of the POCSO Act, is proper. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>41.<span style=\"white-space:pre\">	</span>In view of our above findings, the charge against the accused for the offence punishable under Section 8 of the POCSO Act is established and to the above extent, the appeal deserves to be allowed.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>The appeal filed by the State is partly allowed;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '698d4405d298ab31a3fdbb87d765769b.jpeg', '9cd96caf53ffbe8a3a0f8e7f278e483c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-26', 1, '', '', '2023-05-24 15:44:32', '2023-05-26 12:24:00');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2989, 'z9lwayrdyWmzkfEGYLRyu9IPZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Removing minor girl from the lawful custody of parents is clear case of kidnap”. Karnataka High Court convicts the accused while confirming his acquittal for the offence under the POCSO Act. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>State of Karnataka Vs Kiran Mailareppa Dandennavar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 100442 of 2019 decided on 17 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b>Justice H.T Narendra Prasad and Justice T.G. Shivashankare Gowda</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The brief facts of the case are that, P.W.2 is the victim in this case, she is the daughter of P.W.1 and 7. The victim and her parents were residents of Bassapur village of Navalgund Taluka. The victim was   born   on 20.02.2000. In the year 2016, she was studying first year P.U.C. in Gadag Co-operative Textile Mill Independent Pre-University College, Hulakoti, which is situated 20 Kms away from her village. The victim used to attend the college by traveling in local bus. While she was attending the college, the accused herein, who is also a resident of Bassapur village, used to tease her, trouble her, demanding her to accompany and spend time with him. Inspite of she refusing, he did not stop it, created such a situation that she has to succumb to his pressure. With a fear she did not reveal it to her parents. On 24.09.2016, though was a Sunday, the accused insisted the victim to come out of her house on the pretext of special class in the college. In obedience of the dictum of accused, on 25.09.2016 at about 8.00 a.m. the victim left the house informing that she is attending special class in the college. When she met the accused, he took her in the Bus to Mangaluru, thereby kidnapped her from the lawful custody of her parents, kept her in the house of P.W.22- Shekavva Chindiya and where accused has forcibly committed sexual intercourse against her.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>5.<span style=\"white-space:pre\">	</span>On receipt of the charge sheet, the learned Special Judge, Dharwad has taken cognizance for the offences punishable under Sections 363, 366 and 376 of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘the POCSO Act, 2012’) and secured the presence of accused for trial. The accused pleaded not guilty of the charges. The prosecution examined P.W.1 to 22, marked Ex.P.1 to 46 and M.O.1 to 11. The accused was questioned under Section 313 of Cr.P.C. On behalf of accused one witness was examined as D.W.1 and Ex.D.1 to 5 were came to be marked. After hearing both sides, the impugned Judgment came to be passed acquitting the accused of the charges. Aggrieved by the Judgment of acquittal, the State has preferred this appeal on various grounds.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Calibri, sans-serif\"><b>27.<span style=\"white-space:pre\">	</span>Having heard the arguments of both sides and also the weight of the evidence that the prosecution relied upon, the point that would arise for our consideration is,</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Calibri, sans-serif\"><b>“Whether the prosecution is able to explain the ingredients of the offences under Section 363, 366 and 376 of IPC and Section 6 of POCSO Act, 2012 against the accused?”<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><font face=\"Calibri, sans-serif\"><br></font>31.<span style=\"white-space:pre\">	</span>We have also evaluated the medical evidence through P.W.13, who examined the victim and P.W.17 who examined the accused and Ex.P.34 and 40 are their opinion/reports. Said reports clearly point out that the victim was not subjected to sexual assault or any intercourse. Even the accused was also not indulged in any sexual activity. If he had undergone intercourse with the victim, the evidence is completely contrary and is in support of the defence. Hence, there is no iota of evidence to explain that the victim was subjected to sexual assault in the hands of the accused. Hence, the ingredients of the offence under Section 376 of IPC or Section 6 of the POCSO Act, 2012 are not satisfied.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b>32.<span style=\"white-space:pre\">	</span>As regards to the ingredients of the offence under Section 366 of IPC is concerned, the evidence of the victim point out nothing that the accused made any proposal to marry her at any point of time nor even he taking her to Mangaluru to marry her. Contrary, P.W.22 given explanation to her landlord that the accused married her and they came from village. They brought duplicate Tali and toe rings, made her to wear it to show that she was a married girl. Hence, the intention of the marriage was not forthcoming nor the evidence point out intention of the accused to commit sexual assault against her. Hence, the ingredients of offence under Section 366 of IPC are not forthcoming in the evidence.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Calibri, sans-serif\"><b>33.<span style=\"white-space: pre;\">	</span>Adverting to the contention of learned counsel for the accused on the point of Ex.P.4 to 6, even if it is probable, the accused did not dispute the age of the victim, the Trial Court has already recorded its finding that the victim was minor as on the date of alleged incident, even if the said defence is accepted, in what way it is going to help the defence is not explained. When the victim was minor, the accused was not supposed to remove her from the lawful custody of her parents. In the cross-examination of P.Ws.1 and 7, nothing has elicited that the accused has taken permission from them to take her to Mangaluru not it was his defence. As the panch witnesses point out that the victim has taken the Investigating Officer, her parents and panchas and shown the place where she was stayed explains that till return of the victim to Annigeri village from the date of alleged incident she was not in lawful custody of her parents and therefore the evidence on record explains the ingredients of offence under Section 363 of IPC against the accused.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Calibri, sans-serif\"><b>35.<span style=\"white-space:pre\">	</span>Keeping these principles into consideration and also the defence, we noticed from the evidence, the conduct of victim forcing the accused to take her voluntarily will not bail him out from the offence under Section 363 of IPC, even though the defence is probable, medical evidence stands in support of prosecution. Hence, we are of the considered opinion that the evidence on record point out the ingredients of offence under Sections 363 of IPC and the Trial Court rightly acquitted the accused for the offence under Section 366 and 376 of IPC and Section 6 of the POCSO Act, 2012 and calls no interference.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Calibri, sans-serif\"><b> 36.<span style=\"white-space:pre\">	</span>Thus, on total evaluation of the evidence, we are persuaded to accept the version of the prosecution as it is explained through positive and qualitative evidence that the accused removed the victim from the lawful custody of her parents from 25.09.2016 till 13.10.2016, when she was brought back and dropped at Annigeri by the accused point out the guilt of the accused for the offence under Section 363 of IPC. There is no second view is possible in this regard to extend the benefit of doubt in favour of the accused. Hence, we are of the considered opinion that acquittal of the accused for the said offence by the Trial Court is erroneous and will not stand to its reasons and call for the interference by this Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Calibri, sans-serif\"><b>37.<span style=\"white-space:pre\">	</span>As regards sentence is concerned, records point out that the accused was arrested on 14.10.2016 and he was released on 14.12.2016. He was in judicial custody for a period of two months and the period for which he was sent to the judicial custody has already served. An offence under Section 363 of IPC attracts the punishment – <i>“whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”</i>. The accused was aged 21 years as on the date of alleged incident, as he was aged 22 years when the charge sheet was filed in the year 2017. Hence, though the accused deserves to be punished, having regard to the facts and circumstances of the case, we opine that instead of sentencing the accused, he may be released on probation of good conduct acting under Section 4 of the Probation of Offenders Act, 1958. Accordingly, appeal deserves to be allowed in part.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>The appeal is allowed in part.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"font-family: Calibri, sans-serif; font-size: 12pt;\"><o:p></o:p></span></p>', '08083a7f7558fcdaa97f3e481ea1d2e9.jpeg', '3ff84fc78484170394b550e5a2e9d68e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-25', 1, '', '', '2023-05-24 15:55:37', '2023-05-25 10:33:43'),
(2990, 'RyqQLe9BSgs3wlDZ8F7Nsd6xp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Expiry of lease by efflux of time or its valid termination in the past cannot be construed to mean that such lessee become encroacher under the Wakf Act, 1995 as amended in 2013. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">P.V. Nishish and others Vs Kerala State Wakf Board and another.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Criminal Appeal 309 of 2023 decided on 28 April 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice S. Ravindra Bhat and Justice Dipankar Datta.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">1. The present appeal was heard finally, with the consent of counsel for parties. The appellants are aggrieved by the judgment of the Kerala High Court rejecting their petition under Section 482, Criminal Procedure Code, 1973 (hereafter “Cr. PC”). They had, through those proceedings, sought a direction to quash a criminal complaint instituted against them.<br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2. The appellants urge that one P.M. Mammu Haji leased two shop rooms (numbered as municipal numbers VII/214 and VII/215- hereafter “the premises”),  <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">long ago (in 1916), before the coming into force of the Wakf Act. “Norman Printing Bureau” (hereafter “the Bureau”) was a concern of Achuthan Nair; it was functioning in the premises. A partnership firm was later created, with one P.V. Sami as a partner. The firm continued all these years and continues now. The Bureau publishes ‘Norman Almanac’ containing astronomical data used in astrology.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">3. The respondents allege that P.M. Mammu Haji created a wakf in 1951. After his death, a suit was filed by his legal heirs (O.S. No. 130/1965 before the Sub Court, Calicut) to remove the trustee. There was an existing dispute even between the legal heirs of Mammu Haji whether there was a Wakf or a trust. In that suit, the court found that Mammu Haji created a private Trust; it removed the existing trustee. In between, the rent for the premises was increased, and a Rent Enhancement Deed was executed between the parties, on 15.09.1973. The appellants noticed uncertainty on account of lack of clarity about ownership of the premises and filed an interpleader suit on 30.03.1998 before the Munsiff court, Kozhikode. That suit was transferred to the file of the District Judge (OS 147/2001) where the court decreed the suit and directed the appellants to pay rent to the third defendant.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">4. The CEO of the Board initiated several proceedings against the appellants for eviction. The first attempt, in 2004, resulted in an order3 of the Wakf Board to the effect that the appellants were not in unauthorized occupation and could be </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">evicted after issuing notice under provisions of the Transfer of Property Act. Another proceeding (OS 13/2006) was filed before the Wakf Tribunal against the appellant firm’s manager, for its eviction. This was decreed; but in revision proceedings4 , the Kerala High Court ruled that the Wakf Tribunal lacked jurisdiction and the appellants could be evicted only through a civil proceeding before a competent civil court.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">17. In the present case, there is no controversy that Section 52A is a penal provision; a person proceeded against faces the prospect, in the event the charges are proved, of a prison sentence of up to two years; the offence is cognisable and non-bailable, notwithstanding anything to the contrary in Cr. PC [Section 52A (2)].</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">21. In the present case, it is undeniable that the appellant came into possession even before the wakf was created; before even the Wakf Act, 1954 was enacted (although the precise date is unclear and could be a matter of dispute). It is, however, sufficient to notice that in an interpleader suit, the appellants were permitted to pay rents to the third defendant in the suit. They were holding the premises when the amendment came into force; indeed, a proceeding purporting to evict them was unsuccessfully initiated before the amendment. Another one was commenced and was pending after it came into force. In these circumstances, could it be said- having regard to the previous discussion- that the dispute over <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the termination of their tenancy, resulted in their becoming “encroachers” after the amendment became effective?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">22. In the considered view of this court, the expiry of leases, or other arrangements, by efflux of time or their valid terminations, in the past, cannot be construed (as broadly as suggested by the respondents) to mean that such lessees become “encroachers”. Nor would past tenants whose possession is disputed, and eviction proceedings pending against them before a court, fit that description under Section 3 (ee). The consequences of such an interpretation would be too startling; even before an adjudication of the validity of termination (of leases, for instance), tenants holding over would be exposed to prosecution. There is no allusion to “continuing offence” or any expression suggesting that such a term (mentioned in Section 472 Cr. PC) would be attracted to actions which commenced in the past, i.e., before the amendment of 2013 came into force. To hold otherwise, this court would be resorting to an interpretation that directly deprives the appellants of their rights under Article 20 (1) - a consequence that cannot be countenanced. The plain text of that provision forbids such an interpretation, and the authorities on that aspect clearly indicate that giving effect to a penal statute so as to cover past acts is a proscribed action in law. Therefore, the expression “Whoever alienates or purchases or takes possession of”, which is the opening phrase of Section 52A, cannot be read or construed to include possession taken in the past, which resulted in continued possession, when the provision was enacted. That is to say that Section 52A cannot cover cases where </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">leases of wakf properties had expired in the past and where the tenant or lessee was, at the time the amendment of 2013 came into force, in physical possession and facing civil proceedings for eviction.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">23. It is a matter of record that by an order dated 27.10.2020, the Kerala High Court quashed the order of the CEO of the respondent allowing a revision petition and setting aside the eviction of the tenant. The High Court set aside the finding that the tenant was an encroacher. The entire matter was remitted for fresh consideration, by the Wakf Tribunal, with the following directions:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><span style=\"font-weight: bolder;\">“If the entity created by Mammu Haji is found to be a Wakf, the person in Management shall have the powers to terminate the tenancy and shall be entitled to take proceedings under the Wakf Act for eviction of a tenant, who after such termination of tenancy, is deemed to be an encroacher. We make it clear that we have not observed on the merits of the contentions of either parties. The issues have to be considered in O.S. No. 22/2012.”</span></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">24. In view of the foregoing discussion, the impugned judgment cannot be sustained; it is hereby set aside. The appeal is allowed but without order on costs.</span></span></p>', 'bd374063e638ad453df2cded70423255.jpeg', '4d1971a34013bca4572ad603175610fc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-25', 1, '', '', '2023-05-24 16:00:42', '2023-05-25 06:54:47'),
(2993, '38cSBtPNZ8e30EypvazeF1kaG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Standalone distilleries established for manufacturing ethanol are not governed by the provisions of the Sugarcane Control Order, 1966. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Askins Biofuels Private Limited and others Vs The Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.A. 100075 of 2023 decided on 31 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice R.Devdas and Justice Rajesh Rai K.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Brief facts of the case are that appellant No.1 M/s Askins Biofuels Private Limited was granted Industrial Entrepreneur Memorandum (for short ‘IEM’) on 05.12.2019 to establish a standalone distillery, to manufacture ethanol. The Government of India, through the Ministry of Consumer Affairs, Food & Public Distribution, had issued a notification dated 08.03.2019 extending financial assistance to molasses based standalone distilleries. The Scheme for extending financial assistance to molasses based standalone distilleries was proposed by the Central Government with an intention to enhance and augment ethanol production capacity. Only molasses based standalone distilleries were eligible to file application under the Scheme. Provision was made in the said notification calling upon eligible applicants to set up new distilleries, including expansion of the capacity of the existing molasses based standalone distilleries. Accordingly, appellant No.1 filed an application seeking permission and grant of IEM for establishment of a standalone distillery, at the location 106/2, Harugeri Road, Alagawadi, Raibag, Belagavi District. It is the contention of the appellants that after establishment of the distillery in the said location, appellant No.1 started procuring molasses from appellant No.2, which is a factory licenced to produce jaggery. However, subsequently another notification dated 14.01.2021 was issued by the Ministry modifying the Scheme for enhancement of ethanol distillation capacity or to set up distilleries for production of first generation ethanol from feed stocks, such as, cereals (rice, wheat, barlie, corn and sorghum), sugarcane, sugar beet, etc. Provision was made to convert existing molasses based distilleries (whether attached to sugar mills or standalone distilleries) to dual feed and also to convert grain based distilleries to dual feed. Following the said notification permitting standalone distilleries to produce ethanol from dual feeds, including sugarcane, appellant No.1 started procuring sugarcane juice from appellant No.2 for production of ethanol.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>Respondent No.5-M/s Alagawadi Bireshwar Sugars which was holding IEM in the same area, also called reserved area, was aggrieved of the establishment of standalone distillery within the reserved area and procurement of sugarcane juice by appellant No.1 from appellant No.2. Respondent No.5 filed W.P. No. 100915/2022 seeking a writ of mandamus to the respondent authorities to immediately stop appellant No.1 from establishing the factory, to prevent the appellants herein from dealing with sugarcane / sugarcane juice procured from the reserved area and to stop production. It was also contended that the appellants herein, put together, were a sugar factory and they violated the provisions contained in the Sugarcane Control Order. However, by order dated 15.03.2022, the said writ petition was disposed off directing the concerned authorities to consider various representations and complaints given by respondent No.5 herein and to pass orders in accordance with law. Since opportunity was required to be given to the appellants herein to raise objections and have their say in the matter, the appellants herein gave written representations / objections before the Cane Commissioner. The Cane Commissioner passed an order dated 30.04.2022 holding that appellant No.1 herein is not eligible to utilize sugarcane juice/ syrup for production of ethanol. It was held that appellant No.1 can only produce ethanol extracted from molasses. Being aggrieved, the appellants herein filed W.P. No. 101807/2022. The learned Single Judge, by order dated 26.05.2022 set aside the order dated 30.04.2022 and remanded the matter back to the Cane Commissioner to decide the matter afresh, after hearing the appellants herein. In the meanwhile, the Directorate of Sugar and Vegetable Oils issued a communication dated 23.05.2022 to the Cane Commissioner, Karnataka, directing that the appellant No.1 herein shall not be permitted to produce ethanol from sugarcane juice purchased from any jaggery / khandasari unit. The appellants herein filed one more writ petition in W.P. No. 101968/2022 calling in question the communication dated 23.05.2022 made by the Directorate of Sugar to the Cane Commissioner. The learned Single Judge, by order dated 02.06.2022, allowed the writ petition and quashed the communication dated 23.05.2022. The rival parties were directed to appear before the Cane Commissioner on 10.06.2022 and the Commissioner was directed to reconsider the matter without being influenced by the communication dated 23.05.2022 and decide specific issues, such as, whether the petitioners fall under the definition of ‘factory’ as per the amended provisions of the Sugarcane Control Order; whether the first petitioner /appellant is entitled to receive sugarcane juice/ syrup from appellant/ petitioner No.2; whether appellant / petitioner no.1 is a standalone distillery not crushing sugarcane and therefore entitled to supply of sugarcane juice/ syrup from appellant/ petitioner No.2.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>The crux of the matter is whether the amendment of the term ‘factory or sugar factory’ in terms of the notification dated 31.05.2021, brought to the Sugarcane Control Order, 1966, a standalone distillery permitted to be established in terms of the notification dated 08.03.2019 would fall within the defined term and that they would be governed by the provisions of the Sugarcane Control Order, 1966. Admittedly, on a plain reading of the amended provision, it does not admit a construction bringing within its confines a standalone distillery. Nevertheless, the Directorate of Sugar, in its communication dated 13.01.2022 issued a clarification to all sugar mills/ distilleries that in view of the amendment brought to the Sugarcane Control Order on 31.05.2021, any standalone distillery proposing to produce ethanol from sugarcane juice by crushing sugarcane in its premises shall follow the provisions of the Sugarcane Control Order, including maintaining a distance of 15 kms. from the neighbouring existing sugar mills. It was also directed that such distilleries which are procuring sugarcane juice/ syrup from other sugar mills are required to adhere to the modalities indicated in the guidelines issued by the Directorate in its letter dated 02.12.2021. It was also clarified that distilleries including standalone distilleries can produce ethanol from sugarcane juice/ syrup purchased from sugar mills only for supplying to Oil Manufacturing Companies under “ethanol blended with petrol programme”. It was clarified that distilleries / standalone distilleries are not allowed to procure sugarcane juice/ syrup from any khandasari unit to produce ethanol. Following the same, a subsequent communication was issued by the Directorate on 23.05.2022 to the Cane Commissioner, Karnataka, to preclude appellant No.1 herein from procuring sugarcane juice/ syrup from appellant No.2.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>In that view of the matter, we are primarily required to find out from the objective of the amendment as to whether the rule making authority envisaged the establishment of standalone distilleries within the reserved area, protected under the Sugarcane Control Order as a mistake or mischief. If so, whether the rule making authority intended to remove such mischief by amending the definition clause of the term ‘factory or sugar factory’ and bring within the confines of the Sugarcane Control Order, the standalone distilleries which were permitted to be established within the reserved area.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>We are also of the considered opinion that if the rule making authority intended to bring within the confines of the Sugarcane Control Order any standalone distillery which was permitted to procure molasses initially and thereafter by a subsequent notification issued on 14.01.2021 permitted to procure sugarcane juice/ syrup for manufacturing ethanol, then the rule making authority would have also expressed its intention as to whether the provisions would be made operative prospectively or retrospectively. The rule making authority was required to provide for the established standalone distilleries either by appropriate saving clause or providing a redressal mechanism. Usually, when a vested/ accrued interest is sought to be taken away, then appropriate arrangements will have to be made by the legislature or the rule making authority to redress such grievances. It is by now well settled in a catena of decisions, including the recent decision in the case of Punjab State Co- operative Agricultural Development Bank Ltd. Vs. Registrar, Co- operative Societies & others, (2022) 4 SCC 363, that an amendment having retrospective operation which has the effect of taking away a benefit already available under the existing rule should be held as arbitrary, discriminatory and violative of the rights guaranteed under Articles 14, 16 and 19 of the Constitution of India. In that view of the matter, we should say that if the rule making authority had indeed consciously drawn the prior existing standalone distilleries within the provisions of the Sugarcane Control Order, depriving them of the accrued right of procuring molasses, sugarcane juice/ syrup from the sugar factories, then such standalone distilleries would be entitled to seek a declaration that the amendment should not be made operational retrospectively. Such a claim would be justifiably upheld.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>This Court should also notice that if the provisions of the Sugarcane Control Order are made applicable to standalone distilleries, such as, appellant No.1, then, the existence and continuation of such distilleries would come under immediate threat on the ground that they are established in violation of the express provisions of the Control Order, viz., Clause-6A which prohibits establishment of a second sugar factory within the radius of 15 kms. There cannot be partial application of the provisions of the Control Order. Decommissioning the establishment or cancellation of the IEM granted to appellant No.1 on the ground that the grant of IEM is in contravention of the provisions of the Control Order would be a fertile ground for appellant No.1 to contend that an accrued right cannot be taken away by a subsequent amendment. Therefore, such an amendment, if intended by rule making authority, it would seriously prejudice the interest of such standalone distilleries. On the other hand, if it was the intention of the department to prevent such standalone distilleries from procurement of sugarcane juice/syrup, it could have simply withdrawn the notification dated 14.01.2021, restricting them to procure molasses only. Taking into consideration all these aspects, we are of the opinion that there was no intent of the rule making authority to bring within the sweep of the amended provision standalone distilleries which were licenced by the Department.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>In the light of the above, we are of the considered opinion that the amended provision vide notification dated 31.05.2021 brought to the Sugarcane Control Order, 1966, will not bring within its sweep the standalone distilleries established consequent to the notification dated 08.03.2019 and 14.01.2021 issued by the Ministry of Consumer Affairs, Food & Public Distribution. We, therefore proceed to declare that the standalone distilleries such as appellant no.1 herein established in terms of the notification dated 08.03.2019 and 14.01.2021 for manufacturing ethanol are not governed by the provisions of the Sugarcane Control Order, 1966. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>We make it clear that we have not considered the grievance raised at the hands of the 5th respondent as regards appellant No.2 herein. Therefore, respondent No.5 is free to approach the competent authority to redress its grievance as regards appellant No.2 herein if it is of the opinion that appellant No.2 has violated any of the provisions contained in the Sugarcane Control Order or any other law for that matter. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>Consequently, we allow the writ appeal and set aside the impugned order dated 25.07.2022 passed by the 4th respondent- Commissioner for Cane Development and the impugned order dated 06.01.2023 in W.P. No. 102856/2022. Ordered accordingly. In view of disposal of the appeal on merits, pending IAs, if any, also stand disposed off.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2ae7f094952be99ff0b24e62ef1cf829.jpeg', 'eb1831fe58dd67f083572942458c5c06.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-29', 1, '', '', '2023-05-25 14:33:33', '2023-05-29 10:28:13');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2994, 'gIEv5qrTeJYVR5mLHtGzpBJzM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Omnibus and absurd allegations are not sufficient to invoke the penal provisions regarding dowry prohibition. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nagesh Gundyal and others Vs The State and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.RP 201257 of 2019 decided on 18 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S Rachaiah.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>02.<span style=\"white-space: pre;\">	</span>The Brief facts of the case :-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The respondent No.2 is the wife of Gopal Gundyal who is arrayed as accused No.1. The accused Nos.2 and 3 are the father-in-law and mother-in-law. The accused Nos.4 and 5 are the sister-in-law and husband of sister-in- law respectively. It is stated in the complaint that the marriage of the respondent No.2 was solemnized with the accused No.1 on 30.05.2013. At the time of marriage, dowry was given in the form of cash and gold and also certain household items were given. After the marriage the respondent No.2 was living happily for 03 years at Solapur in the matrimonial home. It is stated that the accused No.1 was working in a private company at Pune. As the respondent No.2 did not know either Marathi or Hindi language, she was not taken to Pune. However, she had to stay at her in-law\'s house. It is alleged that there was a continuous harassment by the in-laws by one or the other pretext and always used to insist the respondent No.2 to go and stay with her husband in Pune. Being frustrated by the harassment of her in-laws, she has decided to go along with her husband. Accordingly, accused No.1 took her to Pune, with a condition that she should not call any of her relatives to Pune. The respondent No.2 made several allegations, inter-alia, the specific allegation made out against all the petitioners that on 22.12.2018 at about 10.30 p.m., when the respondent No.2 and her parents were about to sleep after having dinner, the accused No.1 came to the house of respondent No.2 and called her to come out. On hearing the voice, the respondent No.2 opened the door, by that time all the accused persons entered into the house and assaulted all the family members and scolded them in a filthy language. Hence, the respondent No.2 lodged the complaint against all the family members, including the petitioners. As such, they have committed offences as stated in the FIR.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>05.<span style=\"white-space: pre;\">	</span>Having heard the learned counsel for the respective parties and also perused the documents available on record. It is necessary to refer the judgment of the Hon\'ble Supreme Court in the case of Taramani Parakh vs. State of Madhya Pradesh and others reported in (2015) 11 SCC 260, Para Nos.10, 14 and 15 which reads thus:- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“10. Law relating to quashing is well settled. If the allegations are absurd or do not made out any case or if it can be held that there is abuse of process of law, the proceedings can be quashed but if there is a triable case the Court does not go into reliability or otherwise of the version or the counter version. In matrimonial cases, the Courts have to be cautious when omnibus allegations are made particularly against relatives who are not generally concerned with the affairs of the couple. We may refer to the decisions of this Court dealing with the issue. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>14.<span style=\"white-space: pre;\">	</span>From reading of the complaint, it cannot be held that even if the allegations are taken as proved no case is made out. There are allegations against Respondent No.2 and his parents for harassing the complainant which forced her to leave the matrimonial home. Even now she continues to be separated from the matrimonial home as she apprehends lack of security and safety and proper environment in the matrimonial home. The question whether the appellant has infact been harassed and treated with cruelty is a matter of trial but at this stage, it cannot be said that no case is made out. Thus, quashing of proceedings before the trial is not permissible. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>15.<span style=\"white-space: pre;\">	</span>The decisions referred to in the judgment of the High Court are distinguishable. In Neelu Chopra, parents of the husband were too old. The husband Rajesh had died and main allegations were only against him. This Court found no cogent material against other accused. In Manoj Mahavir, the appellant before this Court was the brother of the daughter-in- law of the accused who lodged the case against the accused for theft of jewellery during pendency of earlier 498A case. This Court found the said case to be absurd. In Geeta Mehrotra, case was against brother and sister of the husband. Divorce had taken place between the parties. The said cases neither purport to nor can be read as laying down any inflexible rule beyond the principles of quashing which have been mentioned above and applied to the facts of the cases therein which are distinguishable. In the present case the factual matrix is different from the said cases. Applying the settled principles, it cannot be held that there is no triable case against the accused.”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>06.<span style=\"white-space:pre\">	</span>On careful reading of the dictum of the Hon\'ble Supreme Court, in the present case, the respondent No.2 lodged the written complaint, which carries four pages. The complaint contains several allegations against the petitioners. However, till 25.12.2018, she has not lodged any complaint against the in-laws. In the complaint there is specific allegation about assault made out against all the petitioners. However, it appears that the allegations are omnibus and absurd in nature and the said allegations are not sufficient to invoke the provisions as stated supra. Unless, there are no allegations made out against each petitioners independently, it cannot be construed that the petitioners have committed the offence. Regard being had to the submission of the learned counsel for the petitioners that the husband of the respondent No.2 had filed divorce petition on 17.12.2018 at Solapur Family Court. As a token of retaliation, the respondent No.2 filed complaint against all the petitioners assumes greater significance. Therefore, the criminal case filed by the wife, in respect of cruelty, dowry harassment against the husband and in-laws loses its significance, in case the complaint is made, after receiving the divorce notice from her husband. Hence, it is a fit cases to exercise the inherent jurisdiction to quash the proceedings.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> I.<span style=\"white-space:pre\">	</span>The petitions are allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b854aeac8b62c30956eb6db144e3db77.jpeg', '0a97274f5ca6854513b3516fe86151cd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-26', 1, '', '', '2023-05-25 14:55:28', '2023-05-26 08:24:03'),
(2995, 'AN331tTek5emkbZCbg2PES1AL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Industrial Disputes Act. Labour Court must quantify monetary value payable to the Workman before directing the employer to implement the award under Section 33 (2) (c). Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Karnataka State Tourism Development Corporation Vs The Workmen Karnataka State Tourism Development Corp.,<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 14450 of 2018 decided on 12 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The order of dismissal of the workman was set aside by the I Additional Labour Court, Bengaluru in REF No.5/1985, and the challenge to the same was negated by this court in writ petition as well in the writ appeal. The award passed by the Labour Court is challenged by the petitioner before the Hon\'ble Supreme Court, which is pending consideration. The Workman filed an application under Section 33-C(2) of the Industrial Disputes Act 1947( for short \'the I.D.Act\') to compute the monetary value of the payments due from the petitioner.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>Section 33-C (2) of I.D. Act specifies that the Labour Court has to quantify the monetary value to be paid to the Workman within a period of three months and it may be extended subject to reasons to be recorded in writing. In the present case, the Labour Court concerned instead of quantifying the monetary value payable to the Workman, has directed the petitioner-Management to implement the award, and the same is contrary to Sub-section 2 of Section 33 (c) of the I.D. Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space:pre\">	</span>Writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '993d624cacad98fb6c6620a1173907be.jpeg', 'f5a91f624bc474f66208ebb621e6305e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-26', 1, '', '', '2023-05-25 15:17:55', '2023-05-26 03:22:07'),
(2996, 'HnBAK1EQBbVLlqGbQVLAHdLjX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque Bounce Cases. When the complaint does not disclose the date of service of statutory notice, Court can rely on the date of reply notice to consider limitation aspect. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Padma Financiers Vs V.S. Baliga.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 843 of 2012 decided on 10 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice P.N. Desai.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This appeal arises out of judgment passed in C.C.No.1740/2009 dated 14.06.2012 by the II Additional Civil Judge and JMFC, Shimogga wherein learned JMFC acquitted the accused for the offences punishable under Section 138 of Negotiable Instruments Act (for short hereinafter referred to as \'N.I. Act\').</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 2.<span style=\"white-space: pre;\">	</span>In brief the case of the complainant is that the accused had borrowed a sum of Rs.1,50,000/- from the complainant and agreed to pay the same with interest @ 23% p.a., within five months from the date of borrowing the loan. In that connection, the accused had issued three cheques bearing Nos.957442, 957443, 957444 dated 04.02.1998, 15.3.1998 and 31.3.1998 respectively. When the complainant presented those cheques for encashment on 22.06.1998, the said three cheques came to be dishonoured for want of \'sufficient funds\'. Therefore, the complainant issued demand notice dated 26.06.1998. The same was served on the accused and the accused gave a reply on 01.07.1998. But as the accused did not pay the amount, the complainant filed the complaint on 24.08.1998.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>Admittedly, in this case, according to the complainant, the cheques were presented on 22.06.1998 and they were returned dishonoured on the same day for want of \'sufficient funds\'. Then the complainant issued demand notice on 26.06.1998 i.e., after four days of the dishonor of cheques. The postal acknowledgment is also produced and the same is marked as Ex.P8, but it does not bear any seal of the postal authority or any date or initial by the respondent. But Ex.P10 is the reply notice which bears date as 01.07.1998. Therefore, it is evident that the said notice was served on or before 01.07.1998 or on 01.07.1998 itself.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>Therefore, in view of Section 138(b) of the N.I.Act, when once the cheque came to be dishonoured, a notice in writing to the drawer of the cheque will be issued within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. Prior to 06.2.2003, the time was fixed at 15 days and further if the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheuqe, within fifteen days of the receipt of the said notice i.e., intimation regarding service of notice as provided under Section 142 of N.I. Act within 30 days, he has to file complaint.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>In view of section 142(b) of N.I. Act, the complaint has to be made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138 of N.I. Act. Under section 138(c) of N.I. Act, cause of action arises when once the complainant firstly receives intimation from the bank about the dishonour of cheque. Then he has to issue notice giving 15 days time to the accused to repay the amount and while calculating the limitation, 15 days time as to when the information of dishonour of cheque is received by the accused is to be excluded and thereafter within 30 days, a complaint has to be lodged.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>Admittedly, the complaint was filed after the prescribed period of limitation. Therefore, learned JMFC has dismissed the complaint.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>The decision of Bombay High court relied on by learned counsel for the appellant in the case of R.P. Chawla and Anr. v. Goa Antibiotics and another dated 06.07.2005 referred above is also not applicable as the finding at para 19 that the proviso to clause(b) of section 142 of N.I. Act is retrospective, is not all tenable in view of the decision of the Hon\'ble Supreme Court in the case of Subodh S. Salaskar v. Jayprakash M. Shah & Anr reported in AIR 2008 SC 3086, wherein the Hon\'ble Supreme Court at Paras 24 and 26 discussed in detail and held that the said proviso to section 142(b) conferring such power is substantive provision and it is not a procedural aspect. Therefore, it could not be given a retrospective effect. Paras 24 and 26 reads as under:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> 24. Ex facie, it was barred by limitation. No application for condonation of delay was filed. No application for condonation of delay was otherwise maintainable. The provisions of the Act being special in nature, in terms thereof the jurisdiction of the court to take cognizance of an offence under Section 138 of the Act was limited to the period of thirty days in terms of the proviso appended thereto. The Parliament only with a view to obviate the aforementioned difficulties on the part of the complainant inserted proviso to Clause (b) of Section 142 of the Act in 2002. It confers a jurisdiction upon the court to condone the delay. It is, therefore, a substantive provision and not a procedural one. The matter might have been different if the Magistrate could have exercised its jurisdiction either under Section 5 of the Limitation Act, 1963 or Section 473 of the Code of Criminal Procedure, 1976. The provisions of the said Acts are not applicable. In any event, no such application for condonation of delay was filed. If the proviso appended to Clause (b) of Section 142 of the Act contained a substantive provision and not a procedural one, it could not have been given a retrospective effect. A substantive law, as it is well-settled, in absence of an express provision, cannot be given a retrospective effect or retroactive operation. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>26. Therefore, there cannot be any doubt whatsoever that the courts below committed a manifest error in applying the proviso to the fact of the instant case. If the complaint petition was barred by limitation, the learned Magistrate had no jurisdiction to take cognizance under Section 138 of the Act. The direction to issue summons on the appellant, therefore, being illegal and without jurisdiction was a nullity.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>Therefore, in view of this decision also, the decision of the Bombay High Court in the case of R.P. Chawla’s case will not help the appellant. Apart from that, in that case, the trial court has taken cognizance and the accused preferred revision before the Sessions court. The Sessions Court held that the trial court had not taken into consideration the question of delay and not called upon the complainant to explain the delay. Hence, remanded the matter back to the trial court. Therefore, said order was confirmed.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>But here, the facts of this case are totally different. It is to be noted that the complaint was filed in the year 1998. Infact, under section 138(b), the demand has to be made within 15 days. Subsequently, it was amended to 30 days. The complainant has not brought to the notice of the court regarding receipt of notice by the respondent by stating any date. So there was no occasion for the Magistrate at the time of taking cognizance to consider the question of limitation. But when Ex-P10-reply by the accused-document was produced, subsequently, the question of limitation was raised. Evidence was led. At that time, no application for condonation of delay was filed by the complainant. When the Magistrate has rightly dismissed the complaint, now the appeal is filed again taking the ground that the complaint was within time. No such application for condonation of delay was filed nor any such contention is taken at subsequent stages before appellate court. Therefore, in view of the facts of this case and the dates and events that have taken place, the complaint filed by the complainant is time barred. Learned JMFC after considering the rival contentions has rightly come to the conclusion that it is time barred one which judgment needs no interference. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space:pre\">	</span>It is settled principles of law that this court being the appellate court will not interfere in the judgment of acquittal, unless it is shown that the judgment of acquittal is on erroneous ground or it has resulted in miscarriage of justice or it is a perverse. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22.<span style=\"white-space:pre\">	</span>In the light of these principles, if the present judgment of acquittal is considered, then in my considered view, the impugned judgment is correct and learned JMFC has rightly answered the points for consideration and dismissed the complaint and acquitted the accused. Therefore, the appeal being devoid of merits is liable to be dismissed.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space:pre\">	</span>The appeal filed by the appellant-complainant under section 378(4) Cr.P.C. stands dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9b5bb6ea896592ec1579ff3a2b39fef1.jpeg', '563f347078a04e6e10b13056aef75f5c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-27', 1, '', '', '2023-05-26 12:47:30', '2023-05-27 03:21:50'),
(2997, '4HJF7FNrLhe51FQuqRaVlKLBf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. Section 91. ‘Person’ does not include an accused person on trial. Court cannot insist accused to produce documents by invoking Section 91 since it amounts to self-incrimination. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Salima Begum and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 200175 of 2019 decided on 18 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S Rachaiah.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petitioner No.1 is the Head Mistress (retired) Madina Arabic School, Vijayapura and petitioner Nos.2 and 3 are Chairman and Secretary of Peer Jalal Bhukari Educational and Cultural Society (R), Vijayapura respectively. A private complaint has been lodged by the Assistant Teacher (retired) of the institution against these petitioners for the offences punishable under Sections 177, 192, 196, 199, 405, 408, 418, 420, 424, 468 and 477-A read with Section 34 of Indian Penal Code. The same was referred under Section 156 (3) of Cr.P.C. and the respondent No.1/Pllice have filed  `B\'  report  on  investigation.  Against the `B\'  report,  the respondent No.2 filed protest petition. The learned Magistrate posted the matter on 07.12.2018 for the sworn statement of respondent No.2. However, the respondent No.2 filed an application under Section 91 of Cr.P.C. seeking direction to the petitioners to produce the records as stated in the said application. The Trial Court on application being made by respondent No.2, allowed the same and summons was issued to the petitioners to produce the documents.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space:pre\">	</span>After having heard the learned counsel for the respective parties and on perusal of the documents available on record, it is necessary to refer the provision of Section 91 of Cr.P.C., which reads as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> “91. Summons to produce document or other thing-</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(1)<span style=\"white-space:pre\">	</span>Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(2)<span style=\"white-space:pre\">	</span>Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(3)<span style=\"white-space:pre\">	</span>Nothing in this section shall be deemed-</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(a)<span style=\"white-space:pre\">	</span>to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872 ), or the Bankers\' Books Evidence Act, 1891 (13 of 1891 ) or</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(b)<span style=\"white-space:pre\">	</span>to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 7.<span style=\"white-space:pre\">	</span>On careful perusal of the above provision, now it is relevant to refer the judgment of the Hon\'ble Supeme Court in the case of Shyamlal stated supra, wherein it is held that the term `person\' does not include an accused person on trial. In other words, the Court cannot insist the accused  to produce the document by invoking the provision under Section 91 of Cr.P.C. which is considered to be self incriminating against him. On careful perusal of the provision and dictum of the Hon\'ble Supreme Court, it is needless to say that the petitioners are accused persons against whom the production of documents has been ordered by the trial Court. Having regard to the dictum of the Hon\'ble Supreme Court, the order passed by the trial Court is required to be set aside.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The Criminal Petition is allowed. </b><br></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '837e37079dfac150d7d3fd6224004ed4.jpeg', '87e5ea4429e622baab5228d771698089.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-27', 1, '', '', '2023-05-26 13:10:02', '2023-05-27 06:51:19'),
(2998, '0smUUDy0rDuJd2qS2yr3pHpjx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Validity of marriage cannot be gone into by Courts while considering the applications for maintenance under Section 12 of the Protection of Woman from Domestic Violence Act or Section 125, Cr.P.C. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sharnavva Vs Shivappa.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Revision Petition 200044 of 2018 decided on 18 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Rachaiah.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The brief facts of the case are as under:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is the wife of the respondent. Their marriage was solemnized 15 years ago, as on the date of filing of the criminal miscellaneous petition before the Trial Court. It is stated in the petition that, at the time of marriage dowry was given in the form of Gold and Cash. In spite of sufficient dowry having been paid by the petitioner, the respondent was demanding to bring additional dowry and used to harass and give torture to the petitioner in one or the other pretext. It is further stated that the petitioner was not being given food many times. It is further stated that the petitioner was thrown out of the matrimonial home by the respondent, on being instigated by his mother and sister. As such, the petitioner constrained to file petition under Section 12 of the Protection of Woman from Domestic Violence Act, (for short `the Act\'). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>The Trial Court allowed the petition partly and ordered the respondent to pay Rs.3,000/- per month as maintenance. Being aggrieved by the same, the husband of the petitioner had preferred an appeal before the Appellate Court. The Appellate Court after re-appreciating the case arrived at a conclusion that the petitioner has failed to establish that she is the legally wedded wife of the respondent herein, as such, the appellate Court allowed the appeal and set aside the order of maintenance. Being aggrieved by the same, the petitioner approached this Court.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">10.<span style=\"white-space: pre;\">	</span>The Appellate Court ought not to have gone into the validity of the marriage between the petitioner and the respondent, unless and until the validity of the marriage has been challenged by the respondent before the appropriate Court and it is nullified by the competent Court having jurisdiction to pass such order. The Courts while dealing with the maintenance matters, either under Section 12 of the Act or under Section 125 of Cr.P.C. should not go into the validity of the marriage. However, the Court may peruse the evidence of the wife as to whether she is able to maintain herself or not. Once the trial Court appreciated the evidence and passed an order of maintenance, the appellate Court may either modify it or set aside the same in case it is found that the wife is able to maintain herself. If any order passed by the appellate Court regarding the validity of the marriage or otherwise, it dehors its jurisdiction.  In the present case, the Appellate Court gone into the validity of the marriage and set aside the order of maintenance passed under Section 12 of the Act, which is beyond its jurisdiction and hence, it is liable to be set aside.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The Criminal Revision Petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5a5d2479f701f3469fdb8d9a1028e302.jpeg', 'd5caa7cd56532173e9272a4a8b0aa6c8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-28', 1, '', '', '2023-05-26 13:21:58', '2023-05-28 05:59:51');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(2999, '5sTvvHPgXeozkW9Fy5mwj843N', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Both “A” and “B” Kharab lands belong to owner of the land. Landowner is entitled for compensation in case of acquisition of kharab land. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shivappa Vs The General Manager and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 10615 of 2015 decided on 7 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>In these writ petitions, the issue to be decided is whether the lands, which are classified as phot kharab lands, (also referred to as ‘Pot’/ ‘Phut’) are owned by the Hiduvalidararu or by the State.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>In the year 1995-96, the lands belonging to the petitioners were to be submerged due to the execution of the Upper Krishna Project and were hence notified for acquisition. An award was also passed in respect of the lands determining the compensation, to which the petitioners were entitled. However, while determining the compensation payable, the Special Land Acquisition Officer (‘SLAO’ for short) did not award any compensation to that portion of the land, which had been classified as phot kharab. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>As the claim made by the petitioners remained unconsidered, writ petitions were filed. This Court issued a direction to the SLAO to consider the claim of the petitioners and thereupon the SLAO considered the claims and issued the impugned endorsements. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space:pre\">	</span>The impugned endorsements state that the petitioners would not be entitled to compensation in respect of the lands classified as phot kharab since they had not been granted the lands which had been classified as ‘A’ kharab lands prior to the issuance of the preliminary notification issued under Section 4(1) of the Land Acquisition Act, 1894 (herein after referred to as ‘the Act’). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>Consequently, the petitioners are before this Court challenging the endorsements, contending that they are entitled to the award of compensation in respect of that portion of the lands which have been classified as Phot Kharab lands and there was no need for such lands to be granted to them by the competent authority.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>The principal question, therefore, that will have to be considered is which of the lands vest in the State under the provisions of the Karnataka Land Revenue Act, 1964 and whether the lands classified as Phot Kharab would also vest in the State, especially those which were classified as ‘B’ Kharab land.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>The Division Bench and the other decisions, referred to above and relied upon by the State, no doubt, state the lands which are classified as ‘B’ Kharab lands under Rule 21(2)(b) of the Karnataka land Revenue Rules, 1966 (for short ‘the Rules’) belongs to the Government. But it will also be relevant to notice the other decisions, including the decision rendered by the Division Bench of this Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>In the decision rendered in the case of The State of Karnataka and others vs. Istak Ahmad Mohammadsaheb and others, ILR 2016 KAR 98, a Division Bench of this Court has stated that in respect of the lands classified under Rule 21(2)(a) of the Rules, the ownership of the lands would continue with the owner. In respect of lands classified under Rule 21(2)(b) of the Rules, it has stated that those lands would be utilised for a public purpose and no individual would have any claim over the same and it would be used for the purposes such as, road, footpath, a tank, stream or burial ground or cremation ground or for village potteries.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>32.<span style=\"white-space:pre\">	</span>Thus, according to the decisions rendered by the Apex court, the owner of the land owns not only the entire surface area but also all the land right down to the centre of the earth. In the light of this declaration of law by a Four Judge decision of the Apex court and the two Division Benches of the Apex Court, it will have to be held that the owner of a land owns the entire surface area of the land and also all that lies beneath it, right up to the centre of the earth.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>37.<span style=\"white-space:pre\">	</span>Section 361 of the Code declared that all lands wherever situate, which are not the property of individuals, or of aggregates of individuals legally capable of holding property, and except insofar as any rights of such individuals which may be established in or over the same was the property of the Government and the Deputy Commissioner was empowered to dispose of the same, subject to the orders of the Government. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>38.<span style=\"white-space:pre\">	</span>Section 39 of the Code empowered the Deputy Commissioner to set apart the land, which was the property of the Government for any public purpose and the Deputy Commissioner while disposing of the land under Section 36 of the Code was required to take into consideration the assignment that had been made under Section 39. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>39.<span style=\"white-space: pre;\">	</span>Thus, historically also, it was only that land which did not belong to an individual or a group of individuals, was declared to be the property of the Government. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>40.<span style=\"white-space: pre;\">	</span>Sections 45 to 57 of the Code provide for provisions relating to Land Revenue. Section 45, 48 and 59 of the Code would be relevant for this case. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>41.<span style=\"white-space: pre;\">	</span>Section 452 of the Code stated that all land, whether it is applied for agricultural or other purposes and no matter where it is situated would be liable for payment of land revenue according to the Rules framed. Lands which were exempted under a special contract or by any law would not however be liable for payment of land revenue.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>44.<span style=\"white-space:pre\">	</span>Thus, essentially, all lands were liable to assessment and for payment of land revenue as prescribed under the Rules framed, unless they were specifically exempted from payment of land revenue. These provisions basically indicate that the State had the power to subject all lands to assessment irrespective of the use that the land was put to.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>58.<span style=\"white-space:pre\">	</span>In the year 1964, The Land Revenue Code, 1888 was replaced by the Karnataka Land Revenue Act, 1964. This Act, despite the repeal of 1888 Code, contains provisions which are more or less similar to the provisions found in the 1888 Code in several aspects, including the aspects of Land and Land Revenue. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>59.<span style=\"white-space:pre\">	</span>Chapter VII of the Act deals with Land and Land Revenue. Sections 67 to 79 deal with Land, while Sections 80 to 90 deal with Land Revenue. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>60.<span style=\"white-space:pre\">	</span>Section 674 of the Act, which is similar to Section 36 of the Code. It basically declares that all lands which are not property of the individual or an aggregate of persons legally capable of holding property would be the properties of the State Government, wherever it is situate. In essence, the import of Section 67 of the Act is that every property which is not the property of any individual or a group of individuals would be the property of the Government. The provision also clarifies that the declaration would be subject to a situation wherein the rights of certain persons could be established over the lands.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 61.<span style=\"white-space: pre;\">	</span>To put it simply, if a land is not owned by an individual or it is not established that a person has a right over the land, it would be the property of the State. This is on the principle that the Sovereign owns all the lands within its dominion except those lands which are owned by individuals. Conversely stated, if a land belongs to an individual, the State would not be the owner over that land even under its Sovereign powers. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>62.<span style=\"white-space: pre;\">	</span>Sections 68 to 79 of the Act deal with the rights of the Government over the property which belongs to it. Section 70, however, reserves the right of the State over the mines and mineral in a land. This provision would, however, be of no relevance to the issue involved in these cases. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>63.<span style=\"white-space: pre;\">	</span>Section 80 of the Act, which is similar to Section 48 of the Code, declares that all lands whether applied to agriculture or other purposes, and wherever situate, would be liable to pay land revenue, unless payment is specifically exempted. Thus, fundamentally, an individual who owns land, irrespective of the purpose to which it is applied to or irrespective of where it is situate, is statutorily obliged to pay land revenue on his land. This is, of course, subject to any exemption granted to him either under the Act or under a special contract.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>70.<span style=\"white-space:pre\">	</span>Section 83 of the Act indicates the manner in which the land is required to be assessed and states that the land revenue leviable shall be assessed with reference to the use of the land for the purpose of agriculture. It also states that if any land is used for any purpose other than agriculture, such land, even if it is exempted from assessment or is assessed with reference to any purpose other than agriculture, would be liable for payment of land revenue at such rates and subject to such rules as may be prescribed for land used for the purpose of agriculture. Thus, even if a land is used for a purpose other than agriculture, it would be subject to the payment of land revenue as if it is used for the purpose of agriculture. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>71.<span style=\"white-space:pre\">	</span>In respect of lands for which revenue was already fixed before the commencement of the Act, the revenue payable is required to be the same unless the same is commuted as provided under Section 83 of the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>72.<span style=\"white-space:pre\">	</span>Section 84 of the Act indicates as to who is required to fix the assessment. It states that in respect of the land which has not been assessed as provided under Chapter X, the same would be determined by the Deputy Commissioner as per the prescribed rules.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>74.<span style=\"white-space:pre\">	</span>Thus, the substantive provisions of the Act primarily provide for an elaborate mechanism to determine the assessments and payment of land revenue by persons who own lands. 75.<span style=\"white-space:pre\">	</span>To examine this issue further, the Rules framed under the 1964 Act would also have to be examined. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>76.<span style=\"white-space:pre\">	</span>On the coming into force of the 1964 Act, Rules were framed, and Chapter VI of the Karnataka Land Revenue Rules provided for revenue survey and settlement. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>77.<span style=\"white-space:pre\">	</span>Rule 19 of the Rules states that every holding should be separately measured, classified, assessed and defined by boundary marks and entered in the land records as a survey number. If the holding of the land is less than the minimum fixed, it should be separately measured and assessed and entered in the land records, as a sub- division of that survey number. Rule 20 thereof stipulates that the measurements shall be recorded in the books and forms stated therein. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>78.<span style=\"white-space:pre\">	</span>Rule 21 of the Rules states that for the purposes of assessment of lands, they are to be classified with respect to their productive qualities. It states that the number of classes and their relative value should be reckoned in annas and should be fixed under the orders of the Commissioner for Survey, Settlement and Land Records with reference to the circumstances of the different tracts of the State to which the survey extends and to the nature of cultivation. It goes on to state that the classification results are to be recorded in the books prescribed therein. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>79.<span style=\"white-space:pre\">	</span>Sub-clause (2) of Rule 21 of the Rules mandates that during the process of classification of land, which is included as unarable should be treated as ‘Pot Kharab’ land. This unarable land could be classified as those which are unfit for agriculture and those which are not assessed under the Rule. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>80.<span style=\"white-space:pre\">	</span>Rule 21(2)(a) of the Rules contemplates classification of a land which is unfit for agriculture by virtue of the existence of farm buildings, threshing floors of the holder. The intent behind Rule 21(2)(a) of the Rules is that the law recognizes that a certain portion of the land of a survey number is rendered unfit for agriculture due to the existence of farm buildings or threshing floors of the holder, as a result of which, it is considered as unarable land and would thereby be entitled to be exempt from assessment.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>82.<span style=\"white-space:pre\">	</span>What is to be noticed in this classification contemplated under Rule 21(2) is that, a portion of the land held by the owner could be classified as unarable and thereby be exempted from assessment. The reason for the unarability of the land could be because of the use of the land by the holder for the purposes other than agriculture or could be for a reason which is beyond the control of the holder.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>86.<span style=\"white-space:pre\">	</span>The law recognizes that an agricultural land owned by a person could be reserved for being used for a distinct purpose and it also recognizes the fact that a land by virtue of its very nature could be used by persons other than the holder. In all such cases, the law recognizes that the net result would be that the holder would be unable to use the land for agriculture and since he is unable to use land for agricultural purposes, he ought not to be burdened with the liability to pay land revenue.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 87.<span style=\"white-space:pre\">	</span>It is to be stated that merely because a portion of the land escapes assessment and the consequential liability to pay land revenue, that would not result in divesting of the ownership of the holder, and it also would not result in the transfer of the ownership to the State. As already stated above, in order for a land to be considered as a land belonging to the State Government, it should primarily be land which is not owned by an individual. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>88.<span style=\"white-space:pre\">	</span>In law, it is permissible for the lands of an individual to be used by other persons or be reserved for a specific purpose but that would not result in the individual losing his title over the lands.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>93.<span style=\"white-space:pre\">	</span>Paragraph 5.02 of the Karnataka Revenue Survey Manual reads as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“5.02 Kinds of Phut Kharab: There are two kinds of Phut Kharab. They are (1) Uncultivable and (2) Cultivable but withdrawn and reserved for some other purpose. The rule about the first kind is that unarable land included in a survey number assessed for purposes of agriculture when it is classed as unfit for cultivation such as (1) Deep pits, (2) Water as uncultivable and the holder may bring such land under cultivation without any liability to a change because it is assumed that such cultivation can only be effected by the expenditure of owner. The rule regarding the second kind is that unarable land included in a survey number assessed for purpose of agriculture when reserved or assigned for public purpose or occupied by a road or recognized foot path or by tank or stream used by public for irrigation or for drinking or for domestic purpose or used for a burial or funeral ground by the public etc. or assigned for village potteries cannot be cultivated. Thus, in respect of second kind of the Phut Kharab cultivation is prohibited even though the land may be cultivable unless the deputy Commissioner permits it and alters the assignment of the Phut Kharab when the purpose for which it is reserved is no longer operative, (e.g., the abandoned tank, abandoned nala etc.) but in the case of a road the rule to be observed is; once highway always a highway. Cart-road assigned as Phut Kharab when not needed for the purpose may be allowed to be cultivated by the holder of the field on his paying the usual assessment. If such strip is in alienated land assessment should be levied when it is clear that exemption originally accorded was granted on the ground that the land was to be used as a road or for any other definite purpose.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> If this class of Phut Kharab is permitted to be cultivated, then it could be assessed even during currency of the Settlement at the same rate as the rest of the Survey number and the assessment is increased. When the cultivation of such kharab land is footpath kharab if its enclosure causes inconvenience to occupants of neighboring land.”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>95.<span style=\"white-space: pre;\">	</span>Thus, as a result of this discussion, it is clear that every land which is measured and classified as a survey number, the title of the said survey number would always vest with the individual and no portion of it would be transferred in favour of the State merely because that portion has been classified as unarable. The mere fact that the portion of an individual’s land is reserved for a public purpose or that the public in general are utilizing the land will also not divest the individual of his title over that portion of the land.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>97.<span style=\"white-space:pre\">	</span>If such a land is acquired that person would have to be compensated as envisaged under Article 300(A) of the Constitution of India. The State cannot deny compensation to the petitioners on the premise that the land is not assessed to revenue or that certain members of the public or the general public are using a portion of the land. The mere usage of the land by the public will not result in the title of the land being vested in the State. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>98.<span style=\"white-space:pre\">	</span>Thus, the proposition of law that emerges from this discussion is that even in respect of lands which are classified as phot kharab land in a survey number, the title to the phot kharab land would still remain with the holder of the land irrespective of the fact as to whether it has been classified under Rule 21(2)(a) or under Rule 21(2)(b) of the Rules. In short, the State will have no title over that portion of the land which is classified as either “A” Kharab or “B” kharab in a Survey number and the entire land including the phot kharab portion would belong to the owner of the Survey number.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 99.<span style=\"white-space:pre\">	</span>It is also to be stated here that so long as a person owns the land the classification of the land as phot kharab, may deny his right to exclusively enjoy his property in its entirety. However, when this very land is acquired, the right that had been reserved to the members of the public to use that portion of the land would also be extinguished and the land would vest with the State free from all encumbrances. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>100.<span style=\"white-space:pre\">	</span>Thus, the restriction imposed on the exclusive use of the land on the owner would also stand extinguished by the acquisition and this extinguishment of the rights of the public could only yield a benefit to the owner and it cannot be amount to a deprivation of compensation to the owner of the land. The owner of the land by reason of the acquisition would lose the entire land including the portion that he was prohibited from using, but he would nevertheless be entitled to compensation over the entire land.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 101.<span style=\"white-space:pre\">	</span>In the instant case, the Land Acquisition Officer has admittedly noticed that the lands in question were infact lands which had been classified under Rule 21(2)(a) of the Rules i.e., lands which are classified as unfit for agriculture at the time of survey for the reason of the owner having erected a farm building or threshing floor. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>102.<span style=\"white-space:pre\">	</span>The reasoning of the Land Acquisition Officer that the petitioners had to obtain permission even in respect of such lands to entitle them for compensation cannot be accepted at all. As stated above, a portion of the land would have been rendered as unfit for agriculture since that land was being used for a purpose other than the agriculture. It may be pertinent to state here that the use of that portion of land was incidentally for purposes which were not only ancillary to the main use of agriculture but also inextricably linked to agriculture. In other words, the land, including the portion which had been rendered unfit for agriculture was also being utilized for a purpose which was linked to the main purpose for which the land was utilized i.e., Agriculture. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>103.<span style=\"white-space:pre\">	</span>The reasoning that permission had to be obtained for using the land for purposes incidental to agriculture and as such a permission had not been obtained, compensation cannot be paid is wholly untenable. There is no provision or rule which prohibits an owner of the land to use the land for a purpose which is incidental, and which supplements his agricultural operations on the land. In fact, Section 95 of the Act permits such kind of a complementary activity. In the light of this provision, reliance placed on a Circular or a Government order would be of no consequence as the same would be in flagrant violation of the statutory provision. In this view of the matter, the impugned endorsement refusing to pay compensation cannot be sustained and same is quashed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>105.<span style=\"white-space:pre\">	</span>Writ Petitions are accordingly allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '37daa1c33a68ef3b09dbae315eba1d28.JPG', '848df3419791e496bb63bde5d41e19ec.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-29', 1, '', '', '2023-05-26 15:19:29', '2023-05-29 08:32:11'),
(3000, 'aH9c61sGf7q9Kroj20i00yP1N', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act. Limitation under Section 34(3) commences only from the date a signed copy of the award is delivered to the party applying for setting it aside. Mere knowledge of the award is not enough. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Associated Constructions Vs The Executive Engineer Karnataka Housing Board and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 29 of 2022 decided on 23 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">These two civil revision petitions are filed before this Court under Section 115 of CPC challenging the order passed by the LXIX Additional City Civil and Sessions Judge (Commercial Court, CCH-89), Bangalore in A.S.Nos.12/2017 and 13/2017, dismissing the applications filed by the revision petitioner before the Court invoking the provisions under Section Order 7 Rule 11 of CPC, wherein prayed the Court to reject the arbitration suit filed under Section 34 of the Arbitration and Conciliation Act, 1996 (‘the said Act’ for short). In support of the application, one of the partner of the defendant in the said suit filed an affidavit stating that an agreement was entered into between the KHB through the plaintiff and the defendant herein on 23.03.1992 for the construction of the houses and when the dispute was arisen between the parties, the matter was referred to the arbitrator. The arbitrator having considered the material available on record, passed the award directing the defendants to pay the arbitral award amount. Being aggrieved by the said arbitral award, a suit is filed by respondent No.1 herein before the Court questioning the very award passed by the arbitrator. The defendant before the arbitration suit filed an application contending that the very suit is filed beyond the limitation period and the period allowed under Section 34(3) of the Act is only for a period of three months and on satisfaction, further one month period can be condoned. But in the case on hand, it is contended that the arbitration award was passed on 01.01.2014 and the same was communicated and in pursuance of the communication, a letter was also written to the State Government for satisfaction of the arbitration award. Even an execution petition was filed and in the execution petition also appeared and filed the statement of objections and even if taken the date of appearance before the executing Court and also filing of the objection statement, the suit is hopelessly barred by limitation.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">10.<span style=\"white-space: pre;\">	</span>Having heard the respective learned counsel and also on perusal of the material available on record, there is no dispute with regard to the fact that the work was entrusted to the petitioner herein for construction of the houses under the Ashraya Scheme. The dispute between the parties is with regard to the work done by the petitioner herein and the matter was entrusted to the arbitration and arbitrator has passed the arbitral award on 01.01.2014. Admittedly, the arbitration suit is filed in the month of January 2017 and in the averments it is made clear in the arbitration suit that the copy was served on 05.10.2016 in terms of the letter dated 26.09.2016 and limitation has to be calculated based on the averments made in the Arbitration Suit No.12/2017. The Apex Court in its judgment in the case of C. Natrajan (supra) made it clear that the Court has to look into the averments made in the plaint and only the averments made in the plaint are relevant. Further, it is observed that at this stage the Court would not be entitled to consider the case of the defence. The petitioner is relying upon the document for having made the correspondence between the State Government and KHB that they are having the knowledge and those documents are nothing but the defence and also it is settled law that while considering an application under Order 7 Rule 11 of CPC, the Court has to consider the averments of the plaint while rejecting the plaint. The judgment referred by the learned counsel for respondent No.1 in the case of C. Natrajan (supra) is aptly applicable to the case on hand and the Court has to look into the averments made in the plaint which has been referred in paragraph No.3.1 of the arbitration suit.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>The Apex Court in the judgment in the case of Sri Biswanath Banik (supra), discussed with regard to consideration of averments in the plaint as a whole in paragraph Nos.7 and 7.4. The Apex Court in the judgment in the case of ARK Builders Private Limited (supra) in paragraph Nos.13, 14 and 15 considering the proviso of Section 34 of the Arbitration Act in detail discussed the scope of Sections 31, 33(4), 33(1) and 34(3) of the Act, wherein it is categorically held that it is not mere formality serving of copy and the same is mandatory. The legal position on the issue may be stated thus. If the law prescribes that a copy of the order/award is to be communicated, delivered, dispatched, forwarded, rendered or sent to the parties concerned in a particular way and in case the law also sets a period of limitation for challenging the order/award in question by the aggrieved party, then the period of limitation can only commence from the date of which the order/award was received by the party concerned in the manner prescribed by the law. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>The provision under Section 31(5) of the Act is clear that after arbitral award is made, a signed copy shall be delivered to each party. In the case on hand, for having delivered the copy of the award to the party i.e., the Executive Engineer, no material is placed before the Court. The learned counsel for the petitioner would contend that the very arbitrator has appeared and filed an affidavit before the Court that it is personally delivered and apart from that, the same is sent through post. For having served the copy personally, no document is placed before the Court and no doubt, the postal receipt for having sent the same is also produced before the Court and acknowledgement for having delivered the arbitration award is not produced before the Court. Section 31(5) of the Act is clear that a signed copy shall be delivered to each party and no doubt the correspondence is made by the Chief Secretary of the KHB with regard to award is concerned and in compliance of Section 31(5) of Act, no material is placed before the Court. When such being the case, the very contention of the learned counsel for the petitioner cannot be accepted. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">13.<span style=\"white-space: pre;\">	</span>It is important to note that when the arbitration suit was filed before the Court, the office objection was raised with regard to limitation is concerned. The Court considered the office objection and passed the order dated 08.02.2017, wherein comes to the definite conclusion having considered the averments made in the plaint that it is specifically stated that it was received by the plaintiff on 03.10.2016 and the same is within limitation period. It is important to note that this order has not been challenged by the revision petitioner and the same has attained its finality. No doubt, this order was passed when the office objection is raised with regard to the limitation is concerned prior to the appearance of the revision petitioner. Even on appearance also, when the Court has given the definite finding that the suit is not barred by limitation and the same is filed within the period of three months from the date of receipt of arbitral award, the same ought to have been challenged and instead of challenging the said order, an application is filed under Order 7 Rule 11 of CPC and while dismissing the application, the Trial Court comes to the conclusion that the Court cannot sit and again consider the same issue by entertaining the application under Order 7 Rule 11 of CPC and the said observation is made in paragraph No.10 of the order. The Trial Court has not committed any error in dismissing the application and the Trial Court has taken note of the averments made in the plaint, particularly in paragraph No.31.1 and while exercising the power under Order 7 Rule 11 of CPC, the Court has to look into the averments of the plaint and not committed any error. Hence, I do not find any error committed by the Trial Court in rejecting the application filed under Order 7 Rule 11 of CPC.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">Both the petitions are dismissed.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p>', '5fa1fa1396341fa60e6d175472b5c351.JPG', 'b9179db0cb8f71d6d18e47b9dde13e22.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-29', 1, '', '', '2023-05-28 15:24:33', '2023-05-29 06:41:45');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3001, 'UtI6TUqSRlxiXrfSnULaM64Zw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Registered sale deed or release deed do not require attestation and it is not necessary to examine attesting witnesses unless the execution of the document is specifically denied by its executor. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Narasimhegowda and others Vs Puttalakshmamma and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 1247 of 2008 decided on 24 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This second appeal is filed by defendants 2, 3 and 4 in a suit for partition which was decreed by the trial court holding that the plaintiff was entitled to 5/12 share in suit properties. The said judgment being challenged in an appeal preferred in the court of Senior Civil Judge resulted in its dismissal and hence this second appeal. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The substance of the pleadings is this: Chaluve Gowda, Narasimha Gowda and Ugre Gowda were the sons, and Singamma, Lakshamma and Narasamma were the daughters of Singre Gowda. Chaluve Gowda was the son born to the first wife of Singri Gowda and the rest to his second wife.   Plaintiff is the daughter of Chaluve Gowda, and she averred that since all the suit properties were ancestral joint family properties, she had more than 1/8 share in them; and when she demanded for her share, defendants 2 and 3 not only denied her share but also treated her cruelly. The third defendant obtained mutation of revenue records of land in survey No.37 of Dugganahalli in favour of his wife i.e., the fourth defendant and it was to be cancelled. With these allegations she claimed the reliefs of partition and cancellation of mutation of revenue records made in the name of 4th defendant.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"> 3.<span style=\"white-space: pre;\">	</span>The third and fourth defendants admitted the relationship as stated by the plaintiff, but denied plaintiff’s right to claim partition on the premise that in the year 1948 itself the plaintiff’s father separated from the joint family by relinquishing his right over suit properties having received a sum of Rs.350/- and 21 guntas of wet land situate at Dugganahalli. They also stated that after the death of Chaluve gowda, his widow i.e., the first defendant, who is also the mother of the plaintiff sold 21 guntas of land to her father-in-law by executing a registered sale deed; and the plaintiff being aware of all these tran</font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">sactions was not entitled to claim partition in the suit properties.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>On 23.9.2010, this second appeal was admitted to examine the following two substantial questions of law.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> “1. Whether the appellants were in a position to rely upon Exhibits D1 and D2 produced as secondary evidence, in support of the contention that there was a release deed by a co-parcener namely, Cheluvegowda, the father of the plaintiff and the sale deed Exhibit D2, which was executed in respect of such property, which was received as his share under the release deed? </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>2.<span style=\"white-space: pre;\">	</span>Whether the share determined as 5/12th was in accordance with law?”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>Section 65(c) of the Evidence Act states that secondary evidence of a destroyed or lost document can be produced. Here DW.1 stated that he could not produce the originals because he had lost them. Regarding reason ascribed by DW.1 for production of certified copies, he was not cross-examined, and Ex.D1 and Ex.D2 were marked without any objection. DW.1 laid foundation for producing the certified copies. Akin to a situation like this, the judgment of the Supreme Court in the case of Marwari Kumhar and others Vs. Bhagawanpuri Guru Ganeshpuri and others [MANU/SC/0501/2000], has held as below: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\"><i>“10. Thus it is to be seen that under sub- clause (c) of Section 65, where the original has been lost or destroyed, then secondary evidence of the contents of the document is admissible. Sub-clause (c) is independent of sub-clause (f)-Secondary evidence can be led, even of a public document, if the conditions as laid down under sub-clause (c) are fulfilled. Thus if the original of the public document has been lost or destroyed then the secondary evidence can be given even of a public document. This is the law as has been laid down by this Court in Mst. Bibi Aisha and Others v. The Bihar Subai Sunni Majlis Avaqaf and Others, reported in AIR (1969) Supreme Court 253. In this case a suit had been filed for setting aside a registered mokarrari lease deed and for restoration of possession of properties. The suit had been filed on behalf of a Waqf. The Original Waqf Deed was lost and an ordinary copy of the Waqf Deed was produced in evidence. The question was whether an ordinary copy was admissible in evidence and whether or not secondary evidence could be led of a public document. The Court held that under section 65 clauses (a) and (c) secondary evidence was admissible. It is held that a case may fall both under clauses (a) or (c) and (f) in which case secondary evidence would be admissible. It was held that clauses (a) and (c) were independent of clause (f) and even an ordinary copy would, therefore, be admissible. As stated above the case that the original was no longer available in Court records and the certified copy was lost has not been disbelieved. Thus the ordinary copy of the earlier judgment was admissible in evidence and had been correctly marked as an exhibit by the trial court.”</i></font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>It is a fact that Ex.D.1 and D.2 are certified copies, and since they appear to have been obtained recently before DW.1 adduced evidence, presumption under section 90 cannot be drawn, but the transaction depicted in Ex.D.1 and D.2 which are not otherwise assailed cannot be disbelieved. Thus looked these two documents ought to have been acted upon by the courts below. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space: pre;\">	</span>Then the next question is whether DW.1 was required to examine the attestors of the release deed and the sale deed or anybody acquainted with transactions. The trial court and the appellate court lost sight of fact that the release and the sale were registered transactions. Proviso to section 68 of the Evidence Act clearly states that a document, other than a will which has been registered in accordance with the provisions of the Indian Registration Act need not be proved by examining an attesting witness unless the execution of a document is specifically denied by its executor. Sale deed and release deed do not require attestation, the evidence on record shows that plaintiff stated nothing about invalidity of the release deed and the sale deed in the plaint, and when she was questioned in the cross-examination, she denied them generally and some of her answers are very evasive. Very importantly, the first defendant, the actual executor of sale deed i.e., Ex.D.2 did not deny its execution. As has been stated by PW.1 in the cross-examination, she is not aware whether she  was born in the year 1948 or not. There is no specific denial of the transactions. Specific denial takes a meaning that denial must be supported by valid reasons; general denial is no denial at all. Here the court below has simply accepted the denials by the plaintiff who is not the executor of the deeds. These findings cannot therefore be sustained. Ex.D.1 indicates that the plaintiff’s father executed a release deed by receiving Rs.350/- and 21 guntas of land, Ex.D.2 shows that the first defendant, after the death of her husband, sold 21 guntas of land to her father-in-law on her behalf and on behalf of the plaintiff. But the plaintiff did not challenge the sale deed within three years of attaining majority. Thus the plaintiff lost her right to claim partition in the suit properties.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 14.<span style=\"white-space: pre;\">	</span>About the question of limitation for the suit, though a substantial question had not been framed, yet it has to be said that the finding of the first appellate court is opposed to section 3 of the Limitation Act. This section clearly states that whether or not plea of limitation is set up, if the court finds that suit is time barred, it has to be dismissed.  Here the release deed came into existence in the year 1948, and the sale deed in the year 1953.  The trial court could have suo moto examined the aspect of limitation, and that point was raised before the appellate court, it should have been examined.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> In conclusion, the second appeal succeeds.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'cc0872e49394efdb5637d79dffa4856a.JPG', 'c43b0a2ba634c9d4a034e8b41f89ca46.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-29', 1, '', '', '2023-05-28 15:33:21', '2023-05-29 03:21:38'),
(3002, 'OURFLr5h5LdOUJEo56EDBtHki', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Merely because the issues are civil in nature, the offences that are alleged cannot be ignored if the complaint and the charge sheet would make out the offences alleged. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Punith and others Vs State and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 7585 of 2021 decided on 24 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is before this Court calling in question the proceedings in C.C.No.128/2020 registered for the offences punishable under Sections 448, 504, 324, 323, 506 read with 34 IPC. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Sans unnecessary details facts projected by the prosecution are as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">On 11-09-2019 at about 5.00 p.m. the 2nd respondent/complainant registers a complaint before the jurisdictional police which becomes a crime in Crime No.193 of 2019. The allegation in the complaint against the petitioners is that the petitioners have barged into the house of the complainant, assaulted him with weapons and caused injury. The complaint explains that after the said assault the complainant along with the objects used for such assault was taken to the jurisdictional police and the complaint came to be registered against the petitioners. The police, after investigation, file a charge sheet against the petitioners for the very same offences that were alleged at the time of registration of the crime. The petitioners are arrayed as accused. It is the filing of the charge sheet that drives the petitioners to this Court in the subject petition.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>The afore-narrated facts are not in dispute. The transaction between the complainant and the petitioners are a matter of record. The reason for receipt of money from the hands of the petitioners by the complainant is what the learned counsel for the petitioners has submitted. Things being thus and the transaction between the petitioners being as narrated hereinabove, when the refund did not come about, the petitioners approached the jurisdictional police. The police in the wake of conduct of a preliminary enquiry summon the complainant. The complainant comes before the jurisdictional police and undertakes to refund the amount, also issues certain cheques by addressing a communication to the Station House Officer of Chandra Layout police station.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">12.<span style=\"white-space:pre\">	</span>The offences alleged inter alia are the ones punishable under Sections 323 and 324 of the IPC. Section 323 deals with punishment for voluntarily causing hurt. Whoever would voluntarily cause hurt would become punishable under Section 323 of the IPC. </font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Therefore, in the case at hand, the two go hand in hand. The petitioners are alleged to have used knives and wooden club to assault the complainant. The assault has led to injury, though the description of the injury by the Doctor are said to be simple in nature, nonetheless, they are injuries.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>Section 448 of the IPC deals with punishment for house trespass. The allegation is, that the petitioners have barged into the house of the complainant and have assaulted. Therefore, there is prima facie case of house trespass. Submission of the learned counsel for petitioners is that no incident of the kind has happened, it is all a story twined by the complainant is noted only to be rejected, as there is prima facie evidence of the incident and the contents of the incident. The intent behind the incident prima facie is the transaction between the parties. Therefore, all these matters will have to be proved in a full blown trial, in which the petitioners have to come out clean. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>The aforesaid facts and the submissions are in the realm of seriously disputed questions of fact.   The Apex Court in the case of KAPTAN SINGH v. STATE OF UTTAR PRADESH1 has held that the High Courts in exercise of jurisdiction under Section 482 of the Cr.P.C. should not interfere in cases where there are seriously disputed questions of facts.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“9.1. At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 CrPC has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 CrPC quashed the criminal proceedings, by the time the investigating officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 CrPC was at the stage of FIR in that case the allegations in the FIR/complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in a catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 104 : (2018) 1 SCC (Cri) 683] in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the investigating agency nor can exercise the powers like an appellate court. It is further observed and held that that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>Therefore, the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In the light of the aforesaid facts and the judgment of the Apex Court, the case cannot be brushed aside on the ground that it is purely civil in nature. The issue between the petitioners and the 2nd respondent/complainant could be purely civil in nature. Merely because the issues are civil in nature, the offences that are alleged cannot be ignored. The Apex Court in the case of KAMAL SHIVAJI POKARNEKAR V. STATE OF MAHARASHTRA2 has held as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>\"5. Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for the High Court to interfere [State of Karnataka v. M. Devendrappa, (2002) 3 SCC 89 : 2002 SCC (Cri) 539] .</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> 6.<span style=\"white-space: pre;\">	</span>Defences that may be available, or facts/aspects which when established during the trial, may lead to acquittal, are not grounds for quashing the complaint at the threshold. At that stage, the only question relevant is whether the averments in the complaint spell out the ingredients of a criminal offence or not [Indian Oil Corpn. v. NEPC (India) Ltd., (2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188] .</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>Having heard the learned Senior Counsel and examined the material on record, we are of the considered view that the High Court ought not to have set aside the order passed by the trial court issuing summons to the respondents. A perusal of the complaint discloses prima facie, offences that are alleged against the respondents. The correctness or otherwise of the said allegations has to be decided only in the trial. At the initial stage of issuance of process it is not open to the courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted.\"<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The Apex Court in the aforesaid judgments has clearly held that merely because the transaction appears to be civil in nature, the proceedings should not be stifled if the complaint and the charge sheet would make out the offences alleged. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>As observed hereinabove, the transaction between the petitioners and the 2nd respondent cannot but be said to be purely civil in nature. Merely because the issue is purely civil in nature or civil proceedings are pending between the parties, is no<i> “licence to commit assault”.</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Criminal Petition lacking in merit stands dismissed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of petitioners under Section 482 of Cr.P.C. and the same shall not bind or influence the proceedings against them in the proceedings pending before the concerned Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1fdd39363d00c13a56e50686af55f612.jpeg', '8871aa4d6b8df80de74ce6f91168da3f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-29', 1, '', '', '2023-05-28 15:43:37', '2023-05-29 12:29:48'),
(3003, 'AyJ2wImDu5VSceufc4MgIGEqY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Partition Act. Party who applies for sale of the property under Section 2 cannot opt for purchase of the share of the other parties under Section 3. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mukunda Rao and others Vs Nirmala Bai and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 21118 of 2021 decided on 24 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>I.A.No. 35 was filed by the respondents under section 151 CPC read with sections 3 and 4 of the Partition Act for considering their applications I.A.23 and 24. Given the brief background, in the FDP proceeding the petitioners applied for auction sale of the suit property as it was not feasible to be divided into three parts. The court obtained valuation of the property through Assistant Engineer of the City Municipal Council, Bhadravathi and ordered for spot sale on 12.4.2006 and court sale on 19.4.2006. At the spot sale the highest bidder was Ramachandra Rao, the original judgment debtor, for Rs.12,05,000/-. But on 19.4.2006 the court sale was not held and it was postponed to three dates 20.4.2006, 21.4.2006 and 22.4.2006. At last one Mujeeb offered to purchase the property for Rs.12,10,000/- and the court accepted his offer and directed him to deposit 1/4th of the bid amount immediately; but he did not. He made the deposit of 1/4th of bid amount on 31.5.2006 and the balance on 26.6.2006. The first respondent who is the legal representative of Ramachandra Rao questioned the auction sale by preferring W.P.11666/2011 before this court. The writ petition was allowed with a direction to proceed in accordance with the provisions of the Partition Act. Then the respondents filed an application under section 3 of the Partition Act as per I.A.No. 23 seeking permission to deposit 2/3rd of Rs.12,10,000/- and another application under section 4 of the Partition Act seeking permission to exercise right of pre-emption. The petitioners also requested the court to release their 2/3rd share. The trial court by its order dated 25.10.2021, partly allowed I.A.35 and directed the respondents to deposit Rs.16,57,058/- being 2/3rd share of the petitioners in the total value of suit property and permitted them to purchase the share of the petitioners. This is the order challenged here.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>Before giving a finding on the trial court’s order, if the scheme of the Partition Act, 1893 is examined, section 2 provides for sale of the property instead of division. Under section 2 of the Act, if the property is found to be not possible to be divided conveniently or reasonably because of its nature or number of shareholders or any other special circumstance, the court can order for sale of that property and distribution of sale proceeds if it is found to be beneficial to all the share holders. Any of the shareholders interested individually or collectively to the extent of one moiety or upwards may request the court for ordering sale.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 8.<span style=\"white-space:pre\">	</span>Section 3 is the next stage; it follows section 2. If one share holder applies for sale under section 2, the other shareholder may apply to the court for leave to buy the share or shares of other party or parties and in that event the court shall order for valuation of the property to be taken and then offer the shares to that shareholder who is ready to buy the share of other shareholder or shareholders at a price ascertained. If two or more shareholders are ready to buy, whoever offers highest price should be preferred.   And if no shareholder is willing to buy at the price ascertained, the applicant or applicants shall be liable to pay costs of or incident to the application. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>Section 4 deals with a situation where a share in a dwelling house belonging to undivided family has been sold to a person who is not a member of the family. If the transferee files a suit for partition, any member of the family being the shareholder may undertake to buy the share of the transferee. In that event the court shall make a valuation of such share and then direct its sale to the shareholder who is ready to buy. If two or more shareholders are ready to buy the share of the transferee procedure contemplated in sub-section (2) of section 3 would apply. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>Section 5 deals with a different situation. Request for sale or an application or undertaking to buy the share may be made by a person authorized to act on behalf of a person under disability and the court can grant leave, if it finds that sale or purchase is for the benefit of a person under disability. Section 6 states that the sale is subject to reserved bidding to be fixed by the court and section 7 deals with sale procedure. According to section 8, any order for sale is deemed to be a decree. Section 8 also states that the court can order for partition of part of the property to which suit relates and sale of the reminder. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>Therefore the scheme of the Act makes it clear that the court is empowered to deal with a situation where division of property in accordance with decree is found to be practically not possible. The scheme provided in the Act gives into effect the decree of the court if the parties are agreeable for mutual arrangement.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">12.<span style=\"white-space:pre\">	</span>In the case on hand, the petitioners having found that division of the property in accordance with the decree being not possible invoked section 2 of the Act. It is a fact that immediately after the application under section 2 of the Act was filed by the petitioners the respondents did not file an application under section 3, and sometime later, i.e, after the sale was set aside by this court they made applications under sections 3 and 4 of the Act and indicated their readiness to deposit 2/3rd of the value of the property. Though it was argued by Sri K.S.Tayur that valuation of shares must be made as it prevailed on the date of making application under section 3 of the Act as has been held by the Supreme Court in the case of Malati Ramchandra Raut and Others vs Mahadevo Vasudevo Joshi and Others [1991 Supp (1) SCC 321], this point of argument is not necessary to be answered here for, the respondents did not make an application under section 3 immediately after application under section 2 was filed by the petitioners.   Rightly the trial court has taken the valuation as it prevailed in the month of 2014 as per the order of this court in W.P.17476/2015. The actual question is whether the petitioners having opted for sale of entire property can exercise their right under section 3 of the Act.  In my considered opinion the shareholder who prefers sale as per section 2 cannot buy the shares of other shareholders. If sections 2 and 3 of the Act are read harmoniously, the court must be first satisfied that division in accordance with decree is not possible because of one or all the reasons envisaged in section 2, and once the court directs sale to be held, the party or shareholder other than the applicant under section 2 gets right to buy. If after one share holder files an application under section 2, another share holder comes forward to buy the shares of others in accordance with section 3 and then the court proceeds further to ascertain the valuation of the property, the share holder who had made an application under section 2 cannot exercise his right under section 3, for by that time he would have lost his right to exercise right of preemption, which is implicitly present in that section. </font></span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">In R.Ramamurthi Iyer vs Raja V Rajeswara Rao [(1972) 2 SCC 721], following is the observation of the Supreme Court :</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><i><b> “8. ….. The scheme of sections 2 and 3 apparently is that if the nature of the property is such or the number of shareholders is so many or if there is any other special circumstance and a division of the property cannot reasonably or conveniently be made, the court can in its discretion on the request of any of the shareholders interested individually or collectively to the extent of one moiety or upwards direct a sale of the property and distribute the proceeds among the shareholders. Now when a court has been requested under S. 2 to direct a sale \'any other shareholder can apply for leave to by at a valuation the share or shares of the party or parties asking for sale. In such a situation it has been made obligatory that the court shall order a valuation of the share or shares and offer to sell the same to the shareholder who has applied for leave to buy the share at a price ascertained by the court. In other words if a plaintiff in a suit for partition has invoked the power of the court to order sale instead of division in a partition suit under S. 2 and the other shareholder undertakes to buy at a valuation the share of the party asking for sale the court has no option or choice or discretion left to it and it is bound to order a valuation of the shares in question and offer to sell the same to the shareholder undertaking or applying to buy it at a valuation. The purpose underlying the section undoubtedly appears to be to prevent the property falling into the hands of third parties if that can be done in a reasonable manner. It would appear from the objects and reasons for the enactment of the Partition Act that as the law stood the court was bound to give a share to each of the parties and could not direct a sale or division of the proceeds. There could be, instances where \"there were insuperable practical difficulties in the way of making an equal division and the court was either powerless to give effect to its decree or was driven to all kinds of shifts and expedient in order to do so. The court was, therefore, given a discretionary authority to direct a sale where a partition could not reasonably be made and the sale would, in the opinion of the court, be more beneficial to the parties. But having regard to the strong attachment of the people in this country to their landed possessions the consent of the parties interested at least to the extent of a moiety in the property was made a condition precedent to the exercise by the court of the new power. At the same time in order to prevent any oppressive exercise of this privilege those shareholders who did not desire a sale were given a right to buy the others out at a valuation to be determined by the court.” </b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">13.</span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif; white-space: pre;\">	</span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">Therefore, the petitioners having rather preferred sale are precluded from exercising right under section 3 of the Act when the respondents are ready to buy the shares of the petitioners at the valuation made by the court. In this view, I find no merit in the writ petition. The order impugned does not suffer from any infirmity. Writ petition is dismissed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a902fce8f3f4c4db674afc1baa534647.JPG', '2642e87e86f32e26686ef72458e5298a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-30', 1, '', '', '2023-05-29 12:37:49', '2023-05-30 08:25:11');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3004, 'oarJCd8AcDey37g4CGwf297ze', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Inclusion of properties already partitioned in a suit for partition amounts to vexatious and scandalous litigation. Court can order deleting the properties from the plaint under Order 6 Rule 16 of CPC. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Lakshamamma Vs A. Shamanna and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 6527 of 2023 decided on 24 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. Necessary facts are as follows:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Suit is for partition against 68 defendants in respect of 46 items of the property. The plaintiff has pleaded in the plaint that Gummanna was the propositus and he had 3 sons namely Anjinappa, G.Nanjappa and Sanjeevappa, and 2 daughters namely Hanumakka and Sanjeevamma. Plaintiff is the daughter of Sanjeevappa and she stated that the suit properties were ancestral joint family properties; though there had not taken place actual partition amongst the children of Gummanna, the revenue records came to be transferred in the names of 3 sons for convenience. The defendants denied her share in the suit properties and therefore she brought the suit for partition.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The defendant No.7 filed written statement denying the plaintiff’s right to claim partition in view of a partition having taken place on 21.09.1953 amongst the sons of Gummanna. In the course of proceedings defendants No.7 and 14 filed applications under Order 6 Rule 16 of CPC. If defendant No.7 sought to strike out item Nos.1 , 7, 8, 9, 11, 13, 16, 17, 18, 19, 24, 26 , 28 to 30, 34, 36, 37, 39 , 43 and 44 to 46; defendant No.14 sought striking out the properties described as item No.2 to 5, 7, 14, 19 to 23, 35, 38 and 42 of the plaint schedule. Defendants No.7 and 14 also filed 2 more applications under Order 1 Rule 10 of CPC to delete from the suit the defendants No.1, 3 to 16 , 30 , 54 and 67. The defendants No. 8, 12, 13, 15, 16, 30, 43, 54 and 67 appeared and filed memo adopting the applications, I.A.Nos.5 to 8 filed by defendants No.7 and 14. In the affidavits filed along with the applications they stated that the plaintiff had brought the suit for partition by suppressing the earlier partition which had taken place on 21.09.1953 amongst the sons of Gummanna and infact after the said partition the plaintiff and other legal heirs of her father sold a property measuring 11 guntas in survey No.53/1 to K V Manjunath on 11.05 .2008 and another land measuring 20 guntas in survey No.48 to Chennamma on 11.10.2021. In both sale deeds, the plaintiff has stated about partition dated 21.09.1953 . The plaintiff is aware of the earlier partition, yet she has filed a suit in respect of all the properties that belonged to Gummanna. For these reasons the properties mentioned in the applications are not available for partition and the pleadings in respect of those properties are unnecessary, scandalous, frivolous and vexatious and hence those properties are to be struck out from the plaint. For the same reason the presence of the defendant Nos.1, 3, 4 to 16, 30, 54 and 67 is not necessary and they are to be deleted.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. Having heard both sides, it is to be stated that Order 6 Rule 16 of CPC empowers the court to strike out any part of the pleading at any stage if it appears that any matter is scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the suit or which is otherwise abuse of the process of the court. In the case of Ajay Arjun Singh (supra), the Supreme Court has held that whenever a pleading is to be struck out on the ground that it is scandalous, the court must first record its satisfaction that the pleading is scandalous in legal sense and then enquire whether such scandalous allegation is called for or necessary having regard to the nature of the relief sought in the proceeding. It is also held that court has to exercise this authority with circumspection and on the basis of some rational principles.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. If the impugned order is read, it appears very well that the court below has applied its mind and given proper reasons to allow the applications. The language of Order 6 Rule 16 of CPC is so plain that the court can exercise the power under this provision at any stage; the only requirement is that any matter in the pleading must appear to be unnecessary, scandalous, frivolous or vexatious. Suppression of a material fact and taking up a plea contrary to it can be considered by the court for exercising power under Order 6 Rule 16 of CPC. The plaintiff appears to have consciously avoided to state about partition dated 21.09.1953. In para 8 of the plaint, she has merely stated about mutation of the revenue documents to the names of three sons of Gummanna. Though according to her the mutation effected was for their convenience, it is possible to infer that without there being some kind of settlement of the family properties, it was not possible to effect mutation. If in the sale deeds executed in the favour of K.V. Manjunath and Chennamma she mentioned about the partition and if in the plaint she avoided to state about the partition, it only shows her intention to reopen the partition of all the properties that belonged to joint family of Gummanna. If the plaintiff knew about the partition, in all fairness she must have disclosed it and sought partition only in respect of properties that were allotted to her father. Bringing a suit for partition in respect of all the properties was not only unnecessary but also scandalous in the sense that it was disgraceful on her part to claim partition in respect of properties which fell to the share of her uncles and now being enjoyed by their legal heirs. Driving the heirs of her uncles to face litigation is nothing but vexatious. The trial court has referred to the suit i.e., O.S.No.849/2003 filed by defendants No.17 to 19 and one deceased Krishnappa in respect of land in survey Nos.77 and 190 and in the said suit a finding was given that partition had taken place on 21.09.1953 . The said suit was dismissed and the R.F.A. filed before this court was also dismissed. These material facts having been suppressed by the plaintiff, it can be stated that defendants No.7 and 14 are justified in seeking deletion of some of the items of suit property and some of the defendants. They need not face litigation for these reasons. Therefore, I don’ t find any infirmity in the impugned order. Hence writ petition is dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'fb48c1adb5d81494e0109b11e6ec6ba7.JPG', '4fe936d832f293594861348783a27d02.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-30', 1, '', '', '2023-05-29 13:20:16', '2023-05-30 12:28:55'),
(3005, 'XGUr2e0ZtuvnX4nzP7z8jKFFG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for partition filed several years after the property was sold by the karta or the mother is hit by the doctrine of acquiescence and the same is liable to be dismissed. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nagaraju and others Vs Ramesh and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R.S.A 1837 of 2017 decided on 26 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>The factual matrix of the case of the plaintiff in O.S.No.88/2013 while seeking the relief of partition is that the suit property was the service inam land re-granted in favour of Thoti Chinnappa, S/o. Thoti Chikkelliga. The said Thoti Chinnappa being the owner in possession of the suit property, out of his love and affection towards Yellappa, S/o. Gabbaiah had gifted the suit property in favour of the said Yellappa through the gift deed dated 08.05.1972. Since the date of said gift deed, he was in actual possession and enjoyment of the suit property. All the revenue documents have been transferred in the name of Yellappa. The said Yellappa died intestate leaving behind his wife Muniyellamma i.e., defendant No.1 and his children i.e., defendant Nos.2 to 5 and plaintiff. The plaintiff being the class-I legal heir and successor to the suit property, continued in joint possession of the suit property.   After the death of Yellappa, the revenue records have been continued in the name of the defendant No.1 on behalf of all the joint family members. This being the facts, the plaintiff and defendant Nos.1 to 5 are in actual possession and enjoyment of the suit property. Recently, one Venkataswamy, S/o. Chinnappa attempted to interfere with the possession of the plaintiff over the suit property. At that time, they have filed the suit in O.S.No.473/1991 before the Munsiff and JMFC, Anekal. The said suit was decreed in favour of the plaintiff and his family members through the judgment and decree dated 21.04.1994. The said judgment and decree became final and conclusive, as there is no appeal against the said judgment and decree. Now, the defendant No.6, without having any manner of right, much less possession over the suit property, tried to put up construction on 05.11.2012 in and over the suit property.   At that time, the plaintiff with the help of villagers, stopped the illegal act of the defendant No.6. Thereafter, the plaintiff enquired and came to know that the defendant No.1 has purported to have registered the sale deed dated 03.08.1995 in favour of the defendant No.6. On the basis of the sale deed dated 03.08.1995, the defendant No.6 entered his name to the records of the suit property. The plaintiff, immediately conveyed the panchayath on 01.10.2013 and enquired about the alienation. The plaintiff and defendant Nos.1 to 5 being the joint family members, they are entitled to 1/6th share over the suit property. The defendant No.1 has no right to execute the sale deed in favour of the defendant No.6. The said document in favour of the defendant No.6 is a created document and the same does not confer any right, title in favour of the defendant No.6. Now, on the basis of the illegal documents, the defendant No.6 is trying to dispossess the plaintiff from the possession of the suit property.   The plaintiff being the joint family member, he is entitled to 1/6th share over the suit property. But, the defendants are not ready to effect the partition. Hence, the defendant No.6 has filed this suit.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>This Court, having considered the grounds urged in the second appeal, framed the following substantial questions of law for consideration:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space: pre;\">	</span>Whether the order of Lower Appellate Court in reversing the finding and order of the Trial Court is justifiable? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Whether the finding of the Lower Appellate Court that the plaintiff, as class-I legal heir of his deceased father, has succeeded, under Section 8 of Hindu Succession Act and for that reason, the mother alone cannot sell the suit schedule property is correct? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>Whether the finding of the Lower Appellate Court that the suit is not barred by limitation, is correct?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">13.<span style=\"white-space: pre;\">	</span>Having heard the respective counsel and also considering the pleadings and both oral and documentary evidence placed on record, this Court has to consider the substantial questions of law framed by this Court. The second substantial question of law framed by this Court is whether the finding of the Lower Appellate Court that the plaintiff, as class-I legal heir of his deceased father has succeeded, under Section 8 of Hindu Succession Act and for that reason, the mother alone cannot sell the suit schedule property is correct.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">14.<span style=\"white-space: pre;\">	</span>Having considered the material on record, it is not in dispute that the suit schedule property was gifted in favour of the father of the plaintiff and to that effect, Ex.P5-gift deed is also produced before the Court. Having considered the recital of Ex.P5-gift deed, it is clear that the property was gifted in favour of the father of the plaintiff, but while selling the property in favour of the appellant, the mother has stated that gift was made in her favour and not in favour of her husband. Admittedly, the husband passed away without executing any testamentary document. Hence, it is clear that, when the property belongs to a male person of the family, Section 8 of the Hindu Succession Act attracts and as a class-I legal heir, the plaintiff also succeeds to the suit schedule property along with the mother and other brothers.   The First Appellate Court has not committed any error in coming to the conclusion that Section 8 of Hindu Succession Act applies. The material on record discloses that, when the suit was filed, suit summons was issued and the defendants have not appeared and contested the matter. But, it is important to note that sale was made by the mother, excluding other children i.e., defendant Nos.1 to 5 and plaintiff and sale deed was executed in the year 1995 itself in terms of Ex.P8.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space: pre;\">	</span>The first and third substantial questions of law framed by this Court are whether the order of Lower Appellate Court in reversing the finding and order of the Trial Court is justifiable and whether the finding of the Lower Appellate Court that the suit is not barred by limitation is correct respectively. These two substantial questions of law are interconnected to each other and hence, they are taken up together for consideration. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">23.<span style=\"white-space: pre;\">	</span>In the case on hand, the mother had sold the property in the year 1995 itself and not challenged the same for a period of 18 years. No doubt, the plaintiff is not a party to the said sale deed and even if he is not a party to the sale deed when the mother had executed a sale deed in favour of defendant No.6, the very approach of the First Appellate Court that the suit of the plaintiff is not at all barred by limitation, is erroneous. The First Appellate Court failed to take note of the fact that the plaintiff was not in possession of the property though he contend that he was in joint possession of the suit schedule property. When he was not in possession of the property, the very contention that he recently came to know about the sale deed cannot be accepted and the finding given by the First Appellate Court in paragraph No.30 that the Trial Court came to a conclusion that the suit is barred by time in view of the change of revenue entries and belated challenge of Ex.P8/Sale Deed. The said reasoning is erroneous. No doubt in the plaint, it is pleaded that he came to know about the sale deed recently, just prior to filing of the said suit. Though the said contention and the evidence is not challenged as reasoned by the First Appellate Court, it is very clear that he was not in possession of the property as on the date of filing of the suit and all the revenue entries clearly disclose that immediately after sale of the property in the year 1994-1995 itself mutated in favour of the purchaser i.e., the appellant herein and the mother had executed the sale deed way back in the year 1995 itself. No doubt, the concept of the legal necessity etc., are not applicable to the present Sale Transaction as reasoned by the First Appellate Court.   But the fact is that the property was sold by the mother in the year 1995 itself and both the plaintiff as well as defendant Nos.2 to 5 kept quiet for a period of 18 years and the same was not challenged immediately and all of them are majors. When they kept quiet they acquiesced their right and the same is barred by limitation. Hence, the suit is barred by limitation.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>27.<span style=\"white-space: pre;\">	</span>This Court also would like to rely upon the judgment of this Court in H.M. RUDRARADHYA VS. UMA & OTHERS reported in ILR 2014 KAR 1293, wherein this Court, considering the material on record with regard to application of Article 60 of Limitation Act, 1963 held that, when there is a transfer of minor’s interest by the natural guardian and suit is filed for setting aside the sale from the date of minor attaining the age of majority, the transfer of minor’s property by a natural guardian in contravention of Clauses (2) and (3) of Section 8 of the Act of 1956 is a voidable transaction and suit to set-aside the sale and for possession has to be within 3 years under Article 60 of the Limitation Act and further held that, suit for a declaration that the sale deed is not binding on her interest in the suit property and this relief is similar to setting aside the sale, which is contemplated under Article 60 of the Limitation Act and in the absence of the said relief, the suit itself cannot be maintained. This Court has also taken note of Article 60 of the Limitation Act, wherein three years time is stipulated to challenge the sale made by the natural guardian transferring the minor interest. In Para No.13 of the judgment, the Court has taken note of the sale of the suit property in favour of the first defendant and suit was not filed within three years and hence, comes to the conclusion that suit was barred by law of limitation and also observed that, when the sale transaction is voidable transaction, it is for the plaintiff, to sue for possession of the property and it is incumbent upon him to pray for such a relief. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">28.<span style=\"white-space: pre;\">	</span>Having considered the principles laid down in the judgments referred (supra) i.e., principles of doctrine of acquiescence and law of limitation, the plaintiff has not taken any steps for challenging the sale made by the mother. I have already pointed out that, sale was made in the year 1995 itself and even the plaintiff had also attained the age of majority as on the date of the sale and other defendants, who are the children have also kept quiet and they have not challenged the very sale made by the mother.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>29.<span style=\"white-space: pre;\">	</span>It is also  important to note that, I have already pointed out that, in the sale deed itself, it is mentioned that sale is made for the benefit of the family and the revenue documents which are produced by the plaintiff himself in terms of Ex.P9- M.R. Copy as well as Ex.P10-RTC clearly discloses that, all the revenue entries are changed in favour of the appellant-purchaser and the plaintiff and the defendants have kept quiet for a period of 18 years. It is also made clear that possession was also delivered in favour of the appellant when the sale was made in the year 1995 itself. When the possession has parted with the subsequent purchaser, the suit is filed in the year 2013 and revenue entries are also not challenged and parting with the possession is also not challenged and not sought for any relief of possession and in an ingenious method, a suit is filed only claiming the share in the suit schedule property without seeking the relief of setting aside the sale made by the mother. No doubt, the First Appellate Court, having considered the rights of the respective parties, comes to the conclusion that Section 8 of the Hindu Succession Act applies and they are entitled for the relief, but the fact is that, the First Appellate Court failed to take note of the fact that there is an inordinate delay in filing the suit and when the right is not exercised for a long time, the very right is non-existent as observed by the Apex Court in PRABHAKAR’s case reported in (2015) 15 SCC 1. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>30.<span style=\"white-space: pre;\">	</span>It is relevant to note that, in the case on hand also, doctrine of acquiescence is applicable and the major sons have not challenged the sale made by the mother and kept quiet for a period of 18 years and when the doctrine of acquiescence is applicable and the litigants have approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay, the very right of the litigants gets defeated and the right of the plaintiff as well as the other major sons, who have been arrayed as defendants in the case on hand and no explanation is offered by the plaintiff. The other major sons have also not challenged the very sale made by the mother and have not sought for the relief of declaration in respect of the sale already made by the mother but, only claimed the share in the suit and they ought to have challenged the sale deed and sought for the relief of declaration and no such relief is sought. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>31.<span style=\"white-space: pre;\">	</span>It is important to note that the First Appellate Court also failed to take note of law of limitation, since the suit is filed after 18 years of the sale made by the mother. When the suit is barred by limitation, the same ought to have been considered by the First Appellate Court and the First Appellate Court failed to take note of the same and committed an error in reversing the findings of the Trial Court and the Trial Court has given the reason with regard to limitation as well as with regard to not challenging the sale within the stipulated time, though not referred the doctrine of acquiescence. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>32.<span style=\"white-space: pre;\">	</span>The First Appellate Court failed to take note of the fact that the sale deed was registered and the very registration itself is notice to the public and the plaintiff and other defendants i.e., major sons were living together and had the knowledge of sale and hence, now the plaintiff cannot contend that he came to know the same only on intervention. Apart from that, the plaintiff and defendant Nos.2 to 5, who have also succeeded to the estate of the property left by the father kept quiet for a period of 18 years and filed the suit after 18 years through another brother, who is younger to all of them and that too, seeking the relief of only partition, even though they were having the knowledge of sale transaction made by the mother in favour of the appellant and parted with the possession of the property and cannot claim that not having the knowledge, when the purchaser is in possession and invested money for the improvement and the revenue records are also changed to his name. These are the aspects which have not been considered by the First Appellate Court. Hence, I am of the opinion that the First Appellate Court has committed an error in reversing the finding of the Trial Court and I answer the first and the third substantial questions of law as ‘affirmative’. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>The appeal is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '883306d0cd0afb8563db4cefc0f90808.JPG', '28dd75a5893c9b20bdf96ee35e9a155d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-30', 1, '', '', '2023-05-29 13:35:32', '2023-05-30 03:22:15'),
(3006, '9Fl1XSRyX9eYegDfumra26qWv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Even a void order rendered between the parties will operate inter-parties and binding on them until it is successfully challenged in a higher Forum. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Commissioner, BDA and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Appeal 129 of 2021 decided on 22 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Alok Aradhe and Justice Anant Ramanath Hedge.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This intra Court appeal emanates from an order dated 22.10.2020 passed by the learned Single Judge of this Court in a Writ petition preferred by respondent No.2 (hereafter referred to as \'the land owner\'). By the said order learned Single Judge has quashed the endorsements dated 18.08.2018 and 20.08.2018 issued by the State Government under Section 48 of the Land Acquisition Act, 1894 and the writ petition has been allowed. In order to appreciate the grievance of the appellant, relevant facts need mention, which are stated infra. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2.<span style=\"white-space: pre;\">	</span>The land owner was the owner of the land bearing Sy.No.95/1, measuring 1 acre 30 guntas situated at BheemanaKuppe Village, Kengeri Hobli, Bengaluru South taluk and in the part of the aforesaid land, a brick factory is built. In the aforesaid land in addition to other lands were acquired for formation of Nadaprabhu Kempegowda residential layout. Accordingly, preliminary notification dated 21.05.2008 was issued under Section 17(1) and (3) of Bangalore Development Authority Act, 1976 (hereinafter for short referred to as \'the Act\'). Thereafter, final notification dated 18.08.2020 under Section 19 of the Act measuring 1 acre 23 guntas out of the land held by the land owner. The land measuring 1 acre 30 guntas was notified for acquisition.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>We have considered the rival submission made on both sides and have perused the records. The moot question, which arises in this intra court appeal is whether the order dated 21.04.2014 passed in W.P.No.4287/2012 which is admittedly not been challenged by any of the parties to the said writ petition is a void order?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 7.<span style=\"white-space: pre;\">	</span>It is also pertinent to note that even a void order or a decision which is rendered between the parties cannot be said nonexistent in all the cases and in all the situation and such an order, will operate inter-parties until it is successfully challenged in a higher Forum. Mere use of word \"void\" is not determinative of its legal impact. The word \"void\" is relative has a relative rather than an absolute meaning. It only conveys the idea depending upon the gravity of the infirmity, as to whether it is fundamental or otherwise.[See: STATE OF KERALA VS M.K.KUNKIHAMAN\', (1996) 1 SCC 435].</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 8.<span style=\"white-space: pre;\">	</span>An order or a decree cannot be said to be without jurisdiction and hence a nullity, if the court passing an order has usurped a jurisdiction which it did not have; a mere wrong exercise of jurisdiction does not result in a nullity. The lack of jurisdiction in the court passing the decree must be patent on its face in order to label it as nullity. Where a court lacks inherent jurisdiction in passing a decree of making an order, the order passed by such court would be without jurisdiction, non est and void ab initio. [See: RAFIQUE BIBI VS. SAYED WALIUDDIN\', (2004) 1 SCC 287 and BALVANT N VISWAMITRA AND OTHERS\', (2004) 8 SCC 706].</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 9.<span style=\"white-space: pre;\">	</span>The order passed by the learned Single judge at first blush appears, in contravention of Section 48 of the Land Acquisition Act, 1894, as the Competent authority to deal with the claim for denotification as a State Government. However, even if the aforesaid order can be termed as one, in contravention of Section 48 of the Act, the same would not be rendered abinitio void. Even otherwise an illegal order passed in contravention of a statutory mandate cannot be said to be ab initio void. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>The order dated 21.04.2014 therefore, cannot be termed as void and it binds the authority which has neither chosen to seek modification of the same. Thereafter, sofar reliance placed by the learned counsel for the appellant in the case of Harshad Chiman Lal Modi vs DLF Universal Ltd supra is concerned, suffice to say that the aforesaid decision of Hon\'ble Supreme Court dealt with an issue of territorial jurisdiction of the Court. Therefore, the same is has no application to the facts of the case.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 11.<span style=\"white-space: pre;\">	</span>The order dated 21.04.2014 binds the authority, as a necessary corollary, the impugned endorsements dated 20.09.2018 and 18.08.2018 cannot be sustained in the eyes of law. For the aforementioned reasons, we concur with the conclusion arrived at by learned Single Judge. In the result, the appeal fails and is hereby dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'cd6985162fd0915c00b512b9b3a2ce9e.JPG', '41996249509b07e9b5edda0278774400.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-30', 1, '', '', '2023-05-29 13:58:45', '2023-05-30 10:37:06');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3007, '8naEvmw7Le6F3oYCLecNEptOf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Law of Limitation. Suit challenging the earlier partition, filed several decades after the partition deed, is liable to be dismissed by rejecting the plaint under Order 7 Rule 11. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Ramisetty Venkatanna and another Vs Nasyam Jamal Saheb and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Civil Appeal 2717 of 2023 decided on 28 April 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice M.R. Shah and Justice C.T. Ravikumar.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Andhra Pradesh at Amaravati in Revision Petition (CRP) No. 179/2021, by which, the High Court has dismissed the said revision petition and has affirmed the order <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">passed by the learned Trial Court dismissing/rejecting the application submitted by the appellants herein – original defendant Nos. 9 & 10 under Order VII Rule XI of CPC, the original defendant Nos. 9 & 10 have preferred the present appeal.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">2. The facts leading to the present appeal in a nutshell are as under: -</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2.1 That one Nasyam Jamal Saheb was the owner of 4 acres 16 cents of land in Survey No. 700/A7B and Survey No. 706/A9 of Nandyal Town and Mandal, Kurnool District, Andhra Pradesh, and several other properties. After the demise of Nasyam Jamal Saheb, his five children namely, 1) Nasyam Jafar Saheb; 2) Nasyam Dasthagiri Saheb; 3) Nasyam Ibrahim Saheb; 4) Sarambee; and 5) Jainabee </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">got partitioned the properties of their father (including 4 acres 16 cents) under a registered partition deed dated 11.03.1953. The predecessor in interest of plaintiffs N. Ibrahim Saheb got 1 acre and predecessor in interest of vendors of the appellants herein Sarambee got 1 acre 16 cents. That thereafter, Sarambee being the absolute owner of 1 acre 16 cents in Survey No. 706/A9 executed a registered gift deed dated 24.01.1968 in favour of her eldest daughter Kareembee (mother of vendors of appellants herein) to an extent of lands measuring 58 cents. That Sarambee vide another gift dated 24.01.1968 gifted the remaining 58 cents in Survey No. 706/A9 to her other daughter Ashabee and her two sons Khasimsa and Abdul Rajak. That thereafter, in the year </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2003, three sons of Ashabee further partitioned the land measuring 58 cents. Each of the sons got 19.33 cents of land each. Similarly, after the death of Kareembee, her three sons effected an oral partition amongst themselves. Two sons of Kareembee – Khatif Khaja Hussain and Khatif Noor Ahammed sold the land in Survey No. 706/A9 to an extent of 58 cents vide two registered sale deeds dated 24.08.2010 in favour of the appellants for a valid sale consideration of Rs. 14,52,000/- and Rs. 13,56,000/-, respectively. The possession of the said land was handed over to the appellants and they developed the land.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2.2 It appears that thereafter, children of Khatis Khader Basha (third son of Kareembee) filed <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">O.S. No. 39/2011 before the III Additional District Judge, Kurnool at Nandyal against other two sons of Kareembee and the appellants seeking partition and separate possession of their share in the property sold to the appellants herein. The said suit came to be referred to Lok Adalat and was settled after the appellants herein paid Rs. 14,00,000/- to the plaintiffs therein.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">2.5 Feeling aggrieved and dissatisfied with the order passed by the learned Trial Court rejecting the application under Order VII Rule XI and refusing to reject the plaint, the appellants herein – original defendant Nos. 9 and 10 filed the revision application before the High Court. By the impugned judgment <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and order the High Court has dismissed the said revision application which has given rise to the present appeal.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">5. We have heard learned counsel appearing on behalf of the respective parties at length. We have also gone through the averments made in the plaint. On going through the averments, it appears that the suit is essentially based upon the premise that there was an error in partition deed dated 11.03.1953 and in partition deed survey number 706/A9 was wrongly mentioned. Therefore, it is the case on behalf of the plaintiffs that Sarambee and other descendants including the vendors of the appellants never had any right to effect transactions in respect of the land in survey number 706/A9. However, it is required to be noted that despite the above, very cleverly the plaintiffs have not sought any relief with respect to partition deed dated 11.03.1953. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Deliberately and purposely, the plaintiffs have not prayed any relief with respect to partition deed dated 11.03.1953 though it is the case on behalf of the plaintiffs that there was an error in partition deed dated 11.03.1953. It is to be noted that pursuant to the partition deed dated 11.03.1953, after the demise of the original land owner Nasyam Jamal Saheb, his five children namely, 1) Nasyam Jafar Saheb; 2) Nasyam Dasthagiri Saheb; 3) Nasyam Ibrahim Saheb; 4) Sarambee; and 5) Jainabee got partitioned the properties under a registered partition deed dated 11.03.1953. Under the registered partition deed, predecessor in interest of plaintiffs, N. Ibrahim Saheb got 1 acre and predecessor in interest of vendors of the appellants Sarambee got 1 acre 16 cents. All the parties </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to the registered partition deed acted upon the said partition deed. That thereafter, further transaction took place and Sarambee executed a registered gift deed dated 24.01.1968 in favour of her eldest daughter Kareembee – mother of the vendors of the appellants to an extent of lands measuring 58 cents. That thereafter, two sons of Kareebee who became co-owner on the death of Kareembee executed the registered sale deed dated 24.08.2010 in favour of the appellants in Survey No. 706/A9 to an extent of land measuring 58 cents for a valid sale consideration. Since 2010, the appellants are in possession of the land purchased vide registered sale deed dated 24.08.2010. Without challenging partition deed dated 11.03.1953 and even subsequent gift deed </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dated 24.01.1968, the plaintiffs have instituted the present suit with the aforesaid prayers which is nothing but a clever drafting to get out of the limitation. If partition deed dated 11.03.1953 was to be challenged which as such, the plaintiffs are attempting to do virtually, the suit would be hopelessly barred by limitation having being instituted after lapse of 61 years from the partition deed.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">5.4 In the case of Ram Singh Vs. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364, this Court observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation. Similar view has been expressed by this Court in the case of Raj Narain Sarin (supra).</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6. Applying the law laid down by this Court in the aforesaid decisions on the applicability of Order VII Rule XI to the facts of the case on hand, we are of the opinion that the plaint ought to have been rejected in exercise of powers under Order VII Rule XI(a) and (d) of CPC being vexatious, illusory cause of action and barred by limitation. By clever drafting and not asking any relief with respect to partition deed dated 11.03.1953, the plaintiffs have tried to circumvent the provision of limitation act and have tried to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">maintain the suit which is nothing but abuse of process of court and the law.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. Now, so far as the reliance placed on the decision of the Privy Council referred to hereinabove and on the decision of this Court in the case of Subhaga (supra) are concerned, there cannot be any dispute with respect to the proposition of law laid down in the aforesaid two decisions. However, the question is the suit being barred by limitation and the illusory cause of action.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7.1 Now so far as the reliance placed upon the decision of this Court in the case of Nusli Neville Wadia (supra) is concerned, again there cannot be any dispute with respect to the proposition of law laid down by this Court that while deciding the application under </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Order VII Rule XI, mainly the averments in the plaint only are required to be considered and not the averments in the written statement. However, on considering the averments in the plaint as they are, we are of the opinion that the plaint is ought to have been rejected being vexatious, illusory cause of action and barred by limitation and it is a clear case of clever drafting.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8. In view of the above and for the reasons stated, the impugned judgment and order passed by the High Court and that of the learned Trial Court rejecting the application under Order VII Rule XI are unsustainable and the same deserve to be quashed and set aside and are accordingly, quashed and set aside. Consequently, the application </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">submitted by the appellants – original defendant Nos. 9 and 10 to reject the plaint in exercise of powers under Order VII Rule XI(a) and (d) of the CPC is hereby allowed and consequently, the plaint of Civil Suit (O.S.) No. 35/2014 is ordered to be rejected.</span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">Present appeal is accordingly allowed. No costs.</span></span></span></p>', '610efed0c8852639718c1e4186f4aadb.jpeg', '6743049d0e7975634587b3f48dd5e929.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-30', 1, '', '', '2023-05-29 15:56:28', '2023-05-30 06:52:43'),
(3010, 'glu7BB6NI9oVteALvBmat8bfp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A decision on the constitutional validity of a provision should be invited not in vacuum but when the justice of the case demands such a decision - Decision on an infructuous writ petition is inconsequential and can never be of any effect. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>State of Himachal Pradesh Vs M/s A.J. Infrastructures Pvt. Ltd and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 8980-8981 of 2012 decided on 28 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Ravindra Bhat and Justice Dipankar Datta.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The facts pleaded in the writ petition reveal that the first respondent had purchased the subject property (described in full in the operative part of the order dated 7th September, 2007, extracted above) in an auction conducted by the State Bank of Patiala (for brevity “State Bank”, hereafter) on 18th January, 2005 in exercise of power conferred by the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity, “the SARFAESI Act”, hereafter). The subject property was initially mortgaged on 11th October, 1999 with the Himachal Pradesh Financial Corporation (for brevity “HPFC”, hereafter) by M/s. Regent Rubber Private Limited (for brevity “Regent”, hereafter). Due to breach committed by Regent, HPFC took over the property and sold it in an open auction to M/s Eastman Rubber (for brevity “Eastman”, hereafter). The subject property was thereafter mortgaged by Eastman with the State Bank. However, Eastman too having <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">committed default in liquidating its dues, the subject property was eventually put up for sale in an open auction on 18th January, 2005 under rules 8 and 9 of the Security Interest (Enforcement) Rules, 2002 (for brevity “SARFAESI Rules”, hereafter)</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The first respondent having applied for mutation of the subject property in its name, an order of rejection thereof came to be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">passed on 22nd December, 2006 in the circumstances noted now. On 18th January, 2005, an ex parte assessment order under the provisions of the Himachal Pradesh General Sales Tax Act, 1968 (for brevity “HPGST Act”, hereafter) was passed in relation to the assessment years 1998-1999, 1999-2000, 2000-2001 and 2001- 2002 against Regent and Eastman amounting to Rs. 19,03,845/- and Rs.13,73,115/- respectively. Having regard to the date of the ex parte assessment order, it is quite but natural that when the first respondent offered its bid for purchasing the subject property in the auction ultimately conducted (on 18th January, 2005), any outstanding liability of either Regent or Eastman could not and was not reflected in any official record. However, in view of this liability of Regent and Eastman, the application of the first respondent for mutation in respect of the subject property in its name stood rejected. Such order revealed that on the asking of the Excise and Taxation Officer, Nahan, District Sirmour, entries in red ink had been made by the Tehsildar, Nahan pertaining to demand of arrears of tax payable by Regent and Eastman under the provisions of the HPGST Act.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. The legal issues arising for decision on these appeals are:<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Whether, in view of dismissal of the special leave petition qua PNB by the order dated 8th April, 2011, the judgment and order outlawing section 16-B of the HPGST Act can at all be examined?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) Should the answer to the above question be in the affirmative, whether section 16-B of the HPGST Act should have been outlawed by the High Court on the ground that it is ultra vires the Constitution or the Banking Companies Act?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iii) Whether having regard to the facts and circumstances triggering the writ petitions, the High Court was justified in returning the findings that the State’s claim of first charge on the subject properties is not substantiated?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iv) Whether dismissal of the review petition/application for recall instituted by the State by the High Court suffers from any infirmity, legal or otherwise?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(v) To what relief, if any, are the appellants entitled? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. During the pendency of these proceedings where challenge had been laid to the judgment and order dated 2nd January, 2008 of the High Court, PNB filed an affidavit dated 30th September, 2010, referred to in the order of this Court dated 8th April, 2011. A reading of the affidavit reveals that during the pendency of the writ petition (filed by PNB) before the High Court, the borrower had offered a compromise proposal which PNB had accepted. In terms thereof, the borrower paid to PNB an amount of Rs.36 lakh towards full and final settlement of the loan liability. Upon receipt of the compromise amount, the title deed of the mortgaged property was duly returned to the borrower. Pursuant thereto, PNB filed an application for withdrawing the execution case before the Recovery Officer, DRT, Chandigarh on 13th August, 2002 and the case, upon being disposed of as withdrawn, was consigned to the record room. It was further categorically averred in paragraph 3(g) of the said affidavit that “<i>the grievance of respondent no.1 raised in the writ petition filed before the Hon’ble High Court does not subsist any further and that the object of having filed the writ petition is already fulfilled and that the writ petition has been rendered infructuous”</i>. Ultimately, in paragraph 5, PNB submitted that “it extends its unconditional apology for not bringing the aforesaid facts to the notice of Hon’ble High Court at the time of reserving the orders in writ petition on 27th November, 2007” and that <i>“the aforesaid facts could not be brought to the notice of Hon’ble High Court due to inadvertence and the same was not deliberate or intentional”.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>31. Therefore, for all intents and purposes, the High Court by its judgment and order dated 2nd January, 2008 decided an infructuous writ petition and, in the process, outlawed section 16-B of the HPGST Act when the same was not at all warranted.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32. In our considered opinion, it was also a clear but inadvertent error on the part of this Court to dismiss only the special leave petition against PNB as infructuous; the appropriate course for this Court ought to have been to dismiss the writ petition of PNB itself as infructuous having regard to the clear stand taken by PNB in its aforesaid affidavit dated 30th September, 2010 that nothing survived for a decision on the writ petition on the date it was decided in view of release of the property from mortgage. 33. We, accordingly, answer the first issue in the affirmative. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">37. It is much after this decision in Central Bank of India (supra) that Parliament proceeded to amend the DRT Act and the SARFAESI Act by the Enforcement of Security Interest and Recovery </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016. Chapter IV-A was introduced in the SARFAESI Act, with effect from 24th January, 2020, containing, inter alia, section 26E which accorded priority in payment to a secured creditor over all other dues in enforcement of the security, subject to conditions specified elsewhere in the said chapter. Prior thereto, with effect from 1st September, 2016, section 31B was introduced in the DRT Act extending similar benefit of priority to a secured creditor. We need not dilate here on the amended provisions for obvious reasons.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>38. What appears to be of significance in the light of the decision in Central Bank of India (supra) is that the findings in the judgments and orders disposing of the writ petitions impugned in two of the four civil appeals ~ the first dated 7th September, 2007 and the other dated 2nd January, 2008 ~ with regard to the scope, ambit and applicability of section 35 of the SARFAESI Act, more particularly the latter holding section 16-B of the HPGST Act as ultra vires the Constitution and the Banking Companies Act, loses its basis and can no longer be held to be legal and valid. Section 35 of the SARFAESI Act could not have been construed as conferring any right on a secured creditor to claim priority over dues of the State in the absence of a provision in that behalf which presently can now be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">claimed, subject to other conditions being fulfilled, in view of section 26E of the SARFAESI Act.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>39. Pertinently, the High Court while seized of the writ petition of PNB was not at all concerned with the SARFAESI Act as such. The matter had travelled to the High Court from proceedings under the DRT Act. There was, thus, no occasion for the High Court to pronounce on the validity of section 16-B of the HPGST Act based on what was held by its coordinate Bench in M/s A.J. Infrastructures Pvt. Ltd. (supra). The High Court, in our considered view, was therefore in clear error.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">40. In the light of the above, while answering the second issue we hold that section 16-B of the HPGST Act is a perfectly valid piece of legislation and is not ultra vires the Constitution and/or the Banking Companies Act as erroneously held in the decision of the High Court dated 2nd January, 2008. Also, following the decision in Central Bank of India (supra), we hold that any observation in the decision dated 7th September, 2007 touching upon section 16-B of the HPGST Act vis-à-vis section 35 of the SARFAESI Act is of no effect.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>44. Insofar as C.A. Nos.8980-8981 of 2012 is concerned, the third issue is very much alive and needs to be addressed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>45. The discussion must begin with a reading of the relevant provisions of the HPGST Act. Section 14 of the HPGST Act postulates <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">assessment of tax. The cumulative effect of the several sub-sections of section 14 is that after returns are furnished by a dealer in respect of any period, the duty of the assessing authority is to assess the appropriate quantum of tax required to be paid by the dealer, in terms of the procedure laid down therein; and to initiate steps, also in terms of the laid down procedure, to recover any amount of unpaid tax, penalty or interest payable under the enactment. Section 16 envisages that any amount of tax, penalty or interest payable under the HPGST Act remaining unpaid after the due date shall be recoverable as arrears of land revenue. Section 16-A, starting with a non-obstante clause, confers power on the Commissioner or any officer other than the one excluded to initiate a special mode of recovery. Then follows section 16-B, which is to the following effect:-</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>“16-B. Tax to be first charge on property. - Notwithstanding anything to the contrary contained in any law for the time being in force, any amount of tax and penalty including interest, if any, payable by a dealer or any other person under this Act shall be a fust charge on the property of the dealer or such other person.”</i></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>47. Section 4(4) of the HPLR Act defines a defaulter as a person liable for arrears of land revenue and includes such person who are responsible as surety for the payment of the arrears. Section 23 provides for the mode of making proclamation issued by a Revenue Officer relating to any land and provides for the methods of proclamation. Chapter VI of the HPLR Act, is titled “Collection of Land Revenue”. Section 74 sets out the process for recovery of the arrears while section 78 provides for attachment of the estate or holding. Section 75 ordains that a writ of demand may be issued by the Revenue Officer on or after the date on which the arrears of land revenue accrue. Section 75-A envisages that at any time after arrears of land revenue accrue, a Revenue Officer may issue a warrant directing an officer named therein to arrest the defaulter and bring him before the Revenue Officer and section 81 confers power of sale of estate or holding. Although, there is no express provision indicating the stage at which a defaulter can deny this liability, section 84 opens up a remedy to a person denying his liability before a Civil Court.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>48. From the excerpt of the impugned judgment and order of the High Court dated 2nd January, 2008 underlined above, it is clear that proceedings were not initiated upon notice to the defaulters and the sum they owed to the department had not been finally determined <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in accordance with law. In view thereof, question of the State resorting to the provisions contained in Chapter VI of the HPLR Act for recovering the dues, if at all, as arrears of land revenue did not arise. The Excise Department, in its reply to CWP 306 of 2007, submitted that the non-obstante provision contained in section 16-B would prevail over any inconsistent provisions in other laws; it was further submitted that in the event of any conflict between any other statute and the HPGST, the latter would prevail. The department further urged that sales taxes dues would be higher in priority over any mortgage since the State would have a first charge. It was also submitted that the Tehsildar was requested, on multiple occasions, to make the required red entries in relation to the revenue records of the subject property, and not mutate/register the same at the behest of the first respondent.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">49. While adopting such a stand, the State and its department either overlooked or were ignorant of the requirement of law that section 16-B would be attracted only after determination of the liability and upon any sum becoming due and payable; and that, it is only thereafter that the charge, if any, would operate. We are of the opinion that no relevant documentary evidence having been placed before the High Court, when CWP 306 of 2007 was being heard, to indicate that necessary steps under the HPGST Act had been </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">initiated by the State and its officers, the third issue has to be answered by holding that the State not having taken steps as required by law for realization of its dues, there was no determination of liability, a fortiori, question of taking recourse to the HPLR Act for recovery of dues as arrears of land revenue did not arise. Without such determination of liability, no red entry marks could have been inserted in the revenue records and the High Court was right in holding that the State ought not to have refused mutation.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>50. The fourth issue need not detain us for too long. As it is, the civil appeals against PNB do not survive. Qua the other appeals, we are once again of the opinion that the High Court was justified in not entertaining the application for recall. It was not maintainable in law, since the writ petition was decided on merits in the presence of the State. A recall application under section 151 of the CPC, therefore, was not the proper remedy in the circumstances. When the law provides a specific remedy, it is not open to a party to take recourse to section 151. It preserves the inherent powers of the court to do justice in a case where the party has no other remedy under the CPC. Besides, even if the application for recall could have been regarded as one for review of the judgment and order dated 7 th September, 2007, the same did not warrant to be entertained for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the reasons assigned by the High Court. No error apparent on the face of the record was pointed out, which is the first ground for seeking a review. Documents were annexed to the application, which were in existence when the reply to CWP 306 of 2007 was filed by the State and no case had been set up that despite discharge of due diligence, such documentary evidence, which were in existence, could not be annexed to the said reply. Much indulgence is shown to the State Governments when they carry judgments/orders in time-barred appeals/revisions, having regard to the impersonal machinery being involved. However, undue indulgence cannot be shown to the State Governments either when they do not file a proper reply or when, despite there being a provision for review, such remedy is not pursued and a different one pursued presumably to overcome the restrictions the provision for review imposes. We, therefore, answer this issue by holding that High Court was justified in rejecting the application for recall.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>51. The fifth issue stands disposed of by holding that the appellants (State and its officers) are not entitled to any relief except the declaration that section 16-B of the HPGST Act is not ultra vires any provision of law. In view of section 16-B having been outlawed by the High Court on 2nd January, 2008, this declaration shall not enure to the benefit of the State in respect of cases that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">are old and have been closed but would be effective once again from this day.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>52. Consequently, all the civil appeals stand disposed of on the aforesaid terms. Parties shall bear their own costs.</b></span></span></p>', 'f804661ac3ebc46875c7fb4b90f06e7f.jpeg', 'bbd8da6500fd91f3125e5eadb2e55d40.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-01', 1, '', '', '2023-05-30 15:17:42', '2023-06-01 12:35:55');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3014, 'rx83qVA7XsStuXAv3JFBekPah', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration and Conciliation Act. Section 8. Non-signatory defendants cannot be exposed to arbitral proceedings especially when the cause of action against all the defendants is same and cannot be bifurcated. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/s. Town Essentials Private Limited Vs M/s. Daily Ninja Delivery Services Private Limited and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 15830 of 2022 decided on 24 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The question to be answered in this writ petition filed under Article 227 of the Constitution of India is, whether civil suit is maintainable in view of the fact that defendants No.2 to 7 are not parties to the agreement which provides of resolution of the dispute between the plaintiff and the first defendant through arbitration.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.   Shorn of the unnecessary details of a lengthy plaint, the material facts upon which the plaintiff has founded the reliefs are that on 29.10.2017 , there came into existence a Supplier and Service Provider Agreement between the plaintiff and the first defendant. The terms of the agreement provided that the plaintiff should supply the essentials such as groceries, fruits, vegetables, bakery products, processed fruits and vegetables to the first defendant’s customers who would place orders online. The plaintiff took over entire backend operation of the business of the first defendant and all was good for some time. The first defendant was later on acquired by the second defendant without notice to the plaintiff, however defendant No.2 was aware of the agreement between the plaintiff and the first defendant. After August-2020 , the defendants started to siphon of their business violating the terms of the agreement. The plaintiff has alleged that very acquisition of defendant No. 1 by defendant No.2 was with a view to inducing breach of the agreement. Defendants No.4 and 5 were the promoters and directors of defendant No.1 and after acquisition by defendant No.2, they became the employees of the latter. Consequent to this change, the plaintiff started suffering loss in its business. Attributing the cause for loss in business to the inducement caused by defendants No.2 to 7 for breaching the agreement dated 29.10.2017 , the plaintiff instituted Commercial Original Suit No.520/2021 before the Commercial Court, Bengaluru claiming the reliefs of permanent injunction and a direction to defendants to pay a sum of Rs.36, 22,00,000/- with interest towards damages.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9.   Analysis of facts show that existence of arbitration clause in the agreement is not disputed, and if the dispute were to be between the plaintiff and the first defendant only, it is needless to say that the plaintiff should have sought for appointment of an arbitrator. The anomalous situation is because of presence of defendants 2 to 7 who are not parties to the agreement. The plaintiff has not sought the reliefs only against first defendant, and if it were to be the situation, it can forcefully be said that arbitration could be the proper forum for its dispute with the first defendant. Since reliefs are claimed against all the defendants, reference may be made to Order 1 Rule 3(3) of the Code of Civil Procedure which deals with joinder of defendants.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.   Therefore it is clear that if an act or transaction or series of acts or transactions give rise to reliefs against several persons either jointly or severally or in the alternative, all such persons may be joined as defendants in a suit and another requirement for joining several persons as defendants in a suit is if separate suits are brought against them, a common question of law or fact would arise for adjudication. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\"><br></font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Therefore what I find is that though High Court of Calcutta in Lindsay International holds that Sukanya Holdings is not applicable to cases arising post amendment, in Vidya Drolia (supra), it is held that agreement is ineffective against non signatories. Para 49 of the judgment in Vidya Drolia is extracted here.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>49 . Exclusion of actions in rem from arbitration, exposits the intrinsic limits of arbitration as a private dispute resolution mechanism, which is only binding on ‘ the parties’ to the arbitration agreement. The courts established by law on the other hand enjoy jurisdiction by default and do not require mutual agreement for conferring jurisdiction. The arbitral tribunals not being courts of law or established under the auspices of the State cannot act judicially so as to affect those who are not bound by the arbitration clause. Arbitration is unsuitable when it has erga omnes effect, that is, it affects the rights and liabilities of persons who are not bound by the arbitration agreement. Equally arbitration as a decentralized mode of dispute resolution is unsuitable when the subject matter or a dispute in the factual background, requires collective adjudication before one court or forum. Certain disputes as a class, or sometimes the dispute in the given facts, can be efficiently resolved only through collective litigation proceedings. Contractual and consensual nature of arbitration underpins its ambit and scope. Authority and power being derived from an agreement cannot bind and is non-effective against non- signatories. An arbitration agreement between two or more parties would be limpid and inexpedient in situations when the subject matter or dispute affects the rights and interests of third parties or without presence of others, an effective and enforceable award is not possible. Prime objective of arbitration to secure just, fair and effective resolution of disputes, without unnecessary delay and with least expense, is crippled and mutilated when the rights and liabilities of persons who have not consented to arbitration are affected or the collective resolution of the disputes by including non- parties is required. Arbitration agreement as an alternative to public fora should not be enforced when it is futile, ineffective, and would be a no result exercise.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16.   Here is a case where except the plaintiff and the first defendant, other defendants are not parties to the arbitration agreement. Though it can be said that because of acquisition of first defendant by second defendant, the agreement binds the second defendant, it is to be noted that the other defendants are not parties. Defendants 4 and 5 might have signed the agreement, but they did so in the capacity of directors of first defendant and not in their individual capacity; they are stated to be the employees of second defendant now. This is how the suit is framed, and whether or not the first defendant was induced by other defendants to breach the agreement and thereby the plaintiff got a cause of action to claim the reliefs of permanent injunction and damages against all the defendants is a question to be decided at a single platform. The non signatory defendants cannot be exposed to arbitral proceedings. Cause of action against all the defendants is stated to be same, and it cannot be bifurcated. In this view, I find that the order impugned in the writ petition cannot be sustained.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Writ petition is therefore allowed with costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c93157e4f20b9ce946cbcc2853e3a6c4.JPG', 'b027eff1784e653f6ef3bd28a91ab9d8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-31', 1, '', '', '2023-05-30 19:54:53', '2023-05-31 03:21:06'),
(3015, 'G2tTPI5bHvYyZTiETOTGZQLha', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court directs amendment of Sec 377 IPC to include Necrophilia on the lines of laws prevalent in UK, Canada, NZ etc. Guidelines issued to install CCTVs in mortuaries and to maintain Mortuary hygiene.  ', '<p></p><p><b><span lang=\"EN-US\" style=\"font-size:13.0pt;mso-bidi-font-size:\r\n12.0pt;font-family:\" verdana\",sans-serif;mso-fareast-font-family:\"times=\"\" new=\"\" roman\";=\"\" mso-bidi-font-family:\"times=\"\" roman\";mso-ansi-language:en-us;mso-fareast-language:=\"\" en-us;mso-bidi-language:ar-sa\"=\"\"><span lang=\"EN-US\" style=\"font-size: 12pt;\">RANGARAJU @ VAJAPEYI vs&nbsp;</span><span style=\"font-size: 12pt;\">STATE OF KARNATAKA<br></span></span><span style=\"font-family: Verdana, sans-serif; text-align: center; font-size: 1rem;\">CRIMINAL APPEAL No.1610/2017 decided on 30 May 2023<br>Justice B Veerappa and Justice Venkatesh Naik T.&nbsp;</span></b></p><p><b><span lang=\"EN-US\" style=\"font-size:13.0pt;mso-bidi-font-size:\r\n12.0pt;font-family:\" verdana\",sans-serif;mso-fareast-font-family:\"times=\"\" new=\"\" roman\";=\"\" mso-bidi-font-family:\"times=\"\" roman\";mso-ansi-language:en-us;mso-fareast-language:=\"\" en-us;mso-bidi-language:ar-sa\"=\"\">52. \"Necrophilia-&nbsp; It is a morbid fascination with death and the\r\ndead and more particularly, an erotic attraction to corpses. It is a\r\npsychosexual disorder and DSM-IV classifies it among a group of disorders\r\ncalled \'paraphilias\' including pedophilia, exhibitionism and sexual masochism\r\nand names necrophilia as \'not otherwise specified\'. The Manual cautions that\r\npraphilias should be distinguished from the non- pathological use of sexual\r\nfantasies, behaviour, or objects as stimuli for sexual excitement in\r\nindividuals with paraphilia. It may not necessarily be repetitive, but could be\r\nthe result of rage, experimentation or lust rather than sexual necessity or\r\nhabit, to Although necrophilia is primarily engaged in by males, occasionally\r\nthere have been reported instances of female necrophilia. This is not a\r\nspecific IPC offence categorised under&nbsp;</span><span style=\"font-family: Verdana, sans-serif; font-size: 13pt;\">sexual offences mentioned under the Code, but\r\ncould be brought under Section 297 as causing \"indignity to any human\r\ncorpse\" by trespass into a place set apart for performance of funeral\r\nrites or as a depository for the remains of the dead&nbsp;</span><span style=\"font-family: Verdana, sans-serif; font-size: 13pt;\">Specific IPC offence with Intention of wounding\r\nfeelings of any person or of insulting any religion, if all the legal\r\ningredients of intention are satisfied.</span></b></p><p><b><span lang=\"EN-US\" style=\"font-size:13.0pt;font-family:\r\n\" verdana\",sans-serif;mso-fareast-font-family:\"times=\"\" new=\"\" roman\";mso-bidi-font-family:=\"\" \"times=\"\" roman\";mso-ansi-language:en-us;mso-fareast-language:en-us;=\"\" mso-bidi-language:ar-sa\"=\"\">53. In the present case, it is not the case of prosecution\r\nthat the accused trespassed to a place set apart for the performance of funeral\r\nrites or as a depository for the remains of the dead, or offered any indignity\r\nto any human corpse, or caused disturbance to any person assembled for the\r\nperformance of funeral ceremonies, with an intention to wound feelings of any\r\nperson, or of insulting any religion of any person, or with the knowledge that\r\nthe feelings of any person are likely to be wounded, or that the religion of\r\nany person is likely to be insulted thereby. But it is the specific case of\r\nprosecution that, accused, first murdered the victim and then had sexual\r\nintercourse with dead body.&nbsp; Thereby, it\r\ncannot be held as sexual offences or unnatural offence as defined under\r\nSections 375 and 377 of the Indian Penal Code.&nbsp;</span><span lang=\"EN-US\" style=\"text-align: justify; text-indent: 0cm; font-size: 13pt; line-height: 200%; font-family: Verdana, sans-serif;\"><span style=\"font-variant-numeric: normal; font-variant-east-asian: normal; font-variant-alternates: normal; font-kerning: auto; font-optical-sizing: auto; font-feature-settings: normal; font-variation-settings: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: \" times=\"\" new=\"\" roman\";\"=\"\">&nbsp;</span></span><span lang=\"EN-US\" style=\"text-align: justify; text-indent: 0cm; font-size: 13pt; line-height: 200%; font-family: Verdana, sans-serif;\">Thereby, it cannot be termed\r\nas rape punishable under Section 376 of the Indian Penal Code.&nbsp; <u>Utmost it can be considered as sadism,\r\nnecrophilia and there is no offence made out to punish under Section 376 of the\r\nIndian Penal Code</u>.</span></b></p>\r\n\r\n<span lang=\"EN-US\" style=\"font-size:13.0pt;font-family:\" verdana\",sans-serif;=\"\" mso-fareast-font-family:\"times=\"\" new=\"\" roman\";mso-bidi-font-family:\"times=\"\" roman\";=\"\" mso-ansi-language:en-us;mso-fareast-language:en-us;mso-bidi-language:ar-sa\"=\"\"><b>54. In <u>United\r\nKingdom</u>, Section 70 of the Sexual Offences Act, 2003 of the UK makes it an\r\noffence for a person who intentionally sexually penetrates, knowingly or\r\nrecklessly, any part of his body into any part of a dead person.&nbsp;</b></span><p></p><p><b><span style=\"font-family: Verdana, sans-serif; font-size: 13pt;\">55. In </span><u style=\"font-family: Verdana, sans-serif; font-size: 13pt;\">Canada</u><span style=\"font-family: Verdana, sans-serif; font-size: 13pt;\">, Section 182 of the Criminal Code of\r\nCanada, 1985 makes Necrophilia punishable.&nbsp;<br></span></b></p><p class=\"MsoNormal\" style=\"margin-left:0cm;text-align:justify;text-indent:0cm;\r\nline-height:200%;mso-list:l0 level1 lfo1;tab-stops:list 0cm\"><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nline-height:200%;font-family:\" verdana\",sans-serif\"=\"\"><b>56.In <u>New Zealand</u>,\r\nSection 150 of the Crimes Act, 1961, serves imprisonment for two years to any\r\nperson doing any act on the corpse, whether buried or unburied, to harm its\r\ndignity.</b></span></p><p class=\"MsoNormal\" style=\"margin-left:0cm;text-align:justify;text-indent:0cm;\r\nline-height:200%;mso-list:l0 level1 lfo1;tab-stops:list 0cm\"><span lang=\"EN-US\" style=\"text-indent: 0cm; font-size: 13pt; line-height: 200%; font-family: Verdana, sans-serif;\"><b>57. In <u>South Africa</u>,\r\nSection 14 of the Criminal Law (Sexual Offences and Related Matters) Amendment\r\nAct, 2007 prohibits Necrophilia.</b></span></p><p class=\"MsoNormal\" style=\"margin-left:0cm;text-align:justify;text-indent:0cm;\r\nline-height:200%;mso-list:l0 level1 lfo1;tab-stops:list 0cm\"><b><span lang=\"EN-US\" style=\"text-indent: 0cm; font-size: 13pt; line-height: 200%; font-family: Verdana, sans-serif;\"></span></b></p><p class=\"MsoNormal\" style=\"margin-left:0cm;text-align:justify;text-indent:0cm;\r\nline-height:200%;mso-list:l0 level1 lfo1\"><b><span lang=\"EN-US\" style=\"line-height: 200%;\"><span style=\"font-variant-numeric: normal; font-variant-east-asian: normal; font-variant-alternates: normal; font-kerning: auto; font-optical-sizing: auto; font-feature-settings: normal; font-variation-settings: normal; font-stretch: normal; line-height: normal; font-size: 17.3333px;\"><font face=\"Verdana, sans-serif\">59.</font></span><span style=\"font-family: \" times=\"\" new=\"\" roman\";=\"\" font-size:=\"\" 7pt;=\"\" font-variant-numeric:=\"\" normal;=\"\" font-variant-east-asian:=\"\" font-variant-alternates:=\"\" font-kerning:=\"\" auto;=\"\" font-optical-sizing:=\"\" font-feature-settings:=\"\" font-variation-settings:=\"\" font-stretch:=\"\" line-height:=\"\" normal;\"=\"\">&nbsp;</span></span><!--[endif]--><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nline-height:200%;font-family:\" verdana\",sans-serif\"=\"\">The dignity of dead body of\r\na human being must be maintained and respected.&nbsp;\r\nMoreover, it extended the right to the homeless deceased person to have\r\na decent cremation, according to the religious customs to which one belongs\r\nto.&nbsp; It is also established a\r\ncorresponding duty on the State to ensure decent cremation is served to the\r\nperson.&nbsp; Article 21 of the Constitution\r\nof India emphasized the Right of Life means a meaningful life and not merely\r\nanimal existence.&nbsp; Right to dignity is\r\nalso expanded to a dead person.&nbsp; The\r\nprovisions of Indian Penal Code contemplates rights of a deceased person\r\nincluding right against the trespass of burial sites or places of funeral\r\nrights under Section 297 of IPC.&nbsp; Right\r\nagainst dishonest misappropriation and conversion of property as contemplated\r\nunder Section 404 of IPC. Right against the defamation as contemplated under\r\nSection 499 of IPC and Right against criminal intimidation as contemplated\r\nunder Section 503 of IPC.</span></b></p><p class=\"MsoNormal\" style=\"margin-left:0cm;text-align:justify;text-indent:0cm;\r\nline-height:200%;mso-list:l0 level1 lfo1\"><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nline-height:200%;font-family:\" verdana\",sans-serif\"=\"\"><b><span lang=\"EN-US\" style=\"font-size: 13pt;\">62. The law has not so far defined a person will include a\r\ndead person.&nbsp; It, however, has some\r\nrights which cannot be detached from it, even if the body is deluded of the\r\nlife, is together forms a human being.&nbsp;\r\nThe provisions of the Indian Succession Act, 1923, provides for\r\nexecution of the Will of a person, after he has died.&nbsp; A person is also has a right to protect his\r\ndead body, to be mutilated, wasted or its organs to be taken out, except by the\r\nconsent of the person, when he was alive or on the consent of his kith and kin\r\nor the State, if the body is unclaimed.&nbsp;\r\nThe word ‘person’ may not be construed narrowly serves to exclude dignity\r\nof dead body of the human being, who was the person, when alive, which is not\r\nclaimed and which is required to be cremated or buried&nbsp;</span><span style=\"font-size: 13pt; text-align: left;\">with the dignity in accordance with the religious beliefs\r\nof the person, if such beliefs can be found by establishing his identity.</span><span style=\"font-size: 13pt; text-align: left;\">&nbsp; </span><span style=\"font-size: 13pt; text-align: left;\">State is obliged in law to maintain\r\nsanitation to remove the body, which becomes dangerous, for the safety of other\r\nliving beings for its adequate disposal.</span><span style=\"font-size: 13pt; text-align: left;\">&nbsp;\r\n</span><span style=\"font-size: 13pt; text-align: left;\">Unclaimed dead body has to be claimed by the State both for the purpose\r\nof investigation of the crime if it was committed on the human being who did\r\nnot naturally died for scientific investigation or for research of medical\r\neducation.</span><span style=\"font-size: 13pt; text-align: left;\">&nbsp; </span><span style=\"font-size: 13pt; text-align: left;\">The State is obliged in law\r\nboth under its powers as welfare State, and to protect the rights of such\r\nperson in its extended meaning under Article 21 of the Constitution of India\r\nfor disposal of dead body for a decent and dignified cremation/burial in\r\naccordance with the religious beliefs that man kept or possessed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin-left:0cm;text-align:justify;text-indent:0cm;\r\nline-height:200%;mso-list:l0 level1 lfo1\"><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nline-height:200%;font-family:\" verdana\",sans-serif\"=\"\"><b><span lang=\"EN-US\" style=\"font-size: 13pt;\">64. It is brought to our notice that most of the\r\ngovernment and private hospitals where the dead bodies, especially young woman\r\nkept in mortuary the attendant who appointed to guard, have sexual intercourse\r\non the dead body.&nbsp; Thereby it is high\r\ntime for the State Government to ensure such crime should not happen, thereby\r\nmaintaining dignity of the dead body of the woman.&nbsp; Unfortunately in India no specific\r\nlegislation enacted including under the provisions of Indian Penal Code for the\r\npurpose of upholding dignity and protecting rights and crime against the dead\r\nbody of the woman.&nbsp; In the present case,\r\nas already stated supra, the charge is the accused first murdered the victim\r\nand had sexual intercourse&nbsp;</span><span style=\"font-size: 13pt; text-align: left;\">with the dead body.</span><span style=\"font-size: 13pt; text-align: left;\">&nbsp;\r\n</span><span style=\"font-size: 13pt; text-align: left;\">Though it is anunnatural offence, as defined under Section 377 of IPC,\r\nwhich defined </span><i style=\"font-size: 13pt; text-align: left;\">whoever voluntarily has\r\ncarnal inter­course against the order of nature with any man, woman or animal,\r\nshall be punished with imprisonment for life, or with impris­onment of either\r\ndescription for a term which may extend to ten years, and shall also be liable\r\nto fine</i><span style=\"font-size: 13pt; text-align: left;\">.</span></b></span></p><p class=\"MsoNormal\" style=\"margin-left:0cm;text-align:justify;text-indent:0cm;\r\nline-height:200%;mso-list:l0 level1 lfo1\"><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nline-height:200%;font-family:\" verdana\",sans-serif\"=\"\"><b><span lang=\"EN-US\" style=\"font-size: 13pt;\">65. Unfortunately the said provision does not include the\r\nterm \'dead body\'.&nbsp; Thereby most of the\r\ncrimes against woman on the dead body including hospital mortuaries happening\r\nand it can be considered as sadism or necrophilia and there is no offence in\r\nthe IPC made out to punish such persons who committed sexual intercourse on the\r\ndead body of the woman.&nbsp; Therefore the\r\nprovisions of Section 376 of IPC would not attract.&nbsp; The said material aspect has not been considered\r\nby the learned Sessions Judge, thereby erroneously convicted the accused under\r\nthe provisions of Section 376 of IPC in the&nbsp;</span><span style=\"font-size: 13pt; text-align: left;\">absence of any provision attracting the offence under\r\nthe provisions of Indian Penal Code.</span></b></span></p><p class=\"MsoNormal\" style=\"margin-left:0cm;text-align:justify;text-indent:0cm;\r\nline-height:200%;mso-list:l0 level1 lfo1\"><b><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nline-height:200%;font-family:\" verdana\",sans-serif\"=\"\"></span></b></p><p class=\"MsoNormal\" style=\"margin-left:0cm;text-align:justify;text-indent:0cm;\r\nline-height:200%;mso-list:l0 level1 lfo1\"><b><span lang=\"EN-US\" style=\"line-height: 200%;\"><span style=\"font-variant-numeric: normal; font-variant-east-asian: normal; font-variant-alternates: normal; font-kerning: auto; font-optical-sizing: auto; font-feature-settings: normal; font-variation-settings: normal; font-stretch: normal; line-height: normal; font-size: 17.3333px;\"><font face=\"Verdana, sans-serif\">66.</font></span><span style=\"font-family: \" times=\"\" new=\"\" roman\";=\"\" font-size:=\"\" 7pt;=\"\" font-variant-numeric:=\"\" normal;=\"\" font-variant-east-asian:=\"\" font-variant-alternates:=\"\" font-kerning:=\"\" auto;=\"\" font-optical-sizing:=\"\" font-feature-settings:=\"\" font-variation-settings:=\"\" font-stretch:=\"\" line-height:=\"\" normal;\"=\"\">&nbsp; &nbsp;&nbsp;</span></span><!--[endif]--><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nline-height:200%;font-family:\" verdana\",sans-serif\"=\"\">It is the high time for the\r\nCentral Government in order to maintain right to dignity of the dead\r\nperson/woman to amend the provisions of Section 377 of IPC should include dead\r\nbody of any men, woman or animal or to introduce a separate provision as\r\noffence against dead woman as necrophilia or sadism as has been done in United\r\nKingdom, Canada, New Zealand and South Africa, to ensure dignity of the dead\r\nperson including woman.</span></b></p><div style=\"text-indent: 0px;\"><b><i style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; text-indent: -36pt;\"><span lang=\"EN-US\" style=\"font-size:13.0pt;line-height:200%;font-family:\" verdana\",sans-serif\"=\"\">ORDER. It\r\nis high time for the Central Government to amend the provisions of Section 377\r\nof IPC and should include dead body of men, woman or animal as contemplated\r\nunder the said provision;&nbsp;</span></i><i style=\"text-align: center; text-indent: -36pt; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span lang=\"EN-US\" style=\"font-size:13.0pt;line-height:200%;font-family:\" verdana\",sans-serif\"=\"\">Or&nbsp;</span></i><i style=\"font-size: 13pt; text-indent: 0cm;\"><span lang=\"EN-US\" style=\"font-size: 13pt;\">The\r\nCentral Government shall amend the new provision in the IPC with regard to\r\nsadism or necrophilia against the person whoever voluntarily has carnal\r\nintercourse against the natural including the dead body of the woman,\r\npunishable with imprisonment of life or with imprisonment of either description\r\nfor a term&nbsp;</span></i><i style=\"text-indent: -36pt; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span lang=\"EN-US\" style=\"font-size:13.0pt;line-height:200%;font-family:\" verdana\",sans-serif\"=\"\">which\r\nmay extend to ten years and also shall be liable for fine.&nbsp;<br></span></i><i style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; text-indent: -36pt;\"><span lang=\"EN-US\" style=\"font-size:13.0pt;line-height:200%;font-family:\" verdana\",sans-serif\"=\"\">(I) It\r\nis high time for the State Government to ensure installation of CCTV cameras in\r\nthe mortuaries of all the government and private hospitals in order to prevent\r\nthe offence against the dead body of the woman within 6 (six) months from the\r\ndate of receipt of certified copy of this order.<br></span></i><i style=\"text-indent: -36pt; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span lang=\"EN-US\" style=\"font-size:13.0pt;line-height:200%;font-family:\" verdana\",sans-serif\"=\"\">(II) The\r\nState Government shall maintain following <u>mortuary\r\nservices</u>:<br></span></i><span style=\"text-indent: -36pt; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nline-height:200%;font-family:\" verdana\",sans-serif\"=\"\">(a) Mortuary hygiene</span></i></span><i style=\"text-indent: -36pt; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nline-height:200%;font-family:\" verdana\",sans-serif\"=\"\">: Regular mopping and\r\ncleaning of mortuary should be undertaken so that dead body remains are\r\npreserved in a proper, clean environment, thereby maintaining its dignity.&nbsp;<br></span></i><i>(b) Secured information:</i><i> The facility should maintain confidentiality of\r\nclinical records and must have a mechanism for guarding information related to\r\nthe deceased, especially for cases that are stigmatized and socially criticised,\r\nsuch as that of HIV and suicidal cases.<br></i><span style=\"text-indent: -36pt; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nline-height:200%;font-family:\" verdana\",sans-serif\"=\"\">(d) Maintaining privacy of\r\npremises</span></i></span><i style=\"text-indent: -36pt; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span lang=\"EN-US\" style=\"font-size:13.0pt;line-height:200%;font-family:\" verdana\",sans-serif\"=\"\">:\r\nPost mortem room should not come under the direct line of sight of the general\r\npublic/visitors. To ensure the same, provision of curtain, screen or buffer\r\narea may be made in a post mortem room.<br></span></i><span style=\"text-indent: -36pt; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nline-height:200%;font-family:\" verdana\",sans-serif\"=\"\">(e) Removing physical/\r\ninfrastructural barriers</span></i></span><i style=\"text-indent: -36pt; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span lang=\"EN-US\" style=\"font-size:13.0pt;line-height:200%;font-family:\" verdana\",sans-serif\"=\"\">:\r\nThe facility must have infrastructure for delivery of assured services, to meet\r\nthe prescribed norms. All basic requirements must be available and maintained\r\nas per the Indian Public Health Standard Guidelines for District Hospitals for\r\nmanagement of the dead bodies,&nbsp;<br></span></i><span style=\"text-indent: -36pt; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nline-height:200%;font-family:\" verdana\",sans-serif\"=\"\">(f) Sensitization of the staff</span></i></span><i style=\"text-indent: -36pt; font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span lang=\"EN-US\" style=\"font-size:13.0pt;\r\nline-height:200%;font-family:\" verdana\",sans-serif\"=\"\">: The mortuary\r\nadministration may sensitize the staff from time to time to train them in\r\nhandling of the dead body and deal with the attendants of the deceased with\r\nsensitivity.</span></i><span lang=\"EN-US\" style=\"text-indent: -45pt; font-size: 13pt; line-height: 150%;\"><span style=\"font-variant-numeric: normal; font-variant-east-asian: normal; font-variant-alternates: normal; font-kerning: auto; font-optical-sizing: auto; font-feature-settings: normal; font-variation-settings: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: \" times=\"\" new=\"\" roman\";\"=\"\">&nbsp;<br></span></span><span lang=\"EN-US\" style=\"text-indent: -45pt; font-size: 13pt; line-height: 150%;\">The Central Government is\r\nhereby recommended to amend the provisions of the IPC as stated supra in order\r\nto protect the dignity of the body of the deceased in order to ensure to\r\nprotect persons right of life includes right of his dead body as contemplated\r\nunder Article 21 of the Constitution of India within a period of 6 (six) months\r\nfrom the date of receipt of certified copy of this order.</span></b></div><p></p>', '446e549624f88e1b106d795b60d8f0ea.jpeg', 'cb9c8c752dfe67883a9d142384ef0bb1.doc', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-05-31', 1, '', '', '2023-05-30 21:32:06', '2023-05-31 12:35:45'),
(3020, 'WQAWTNEbMqHT522Fh75hNO7V0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil dispute being converted into criminal case amounts to abuse of process of law. Karnataka High Court quashes criminal proceedings initiated by apartment owner against the office bearers for disconnecting electricity supply. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Krishna Prakash Kamat and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 100651 of 2017 decided on 13 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice J.M. Khazi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioners who are arraigned as accused Nos.1 to 4 are before this Court in petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) with a prayer to quash further proceedings in Crime No.47/2017 of Tilakwadi, Police Station for the offences punishable under Sections 341, 420, 426, 506 R/w Section 34 of Indian Penal Code (for short, ‘IPC\').</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 2.<span style=\"white-space: pre;\">	</span>It is the case of the petitioners that they are the office bearers of the Associations of Owners/Occupiers of “Aasharaya Empire” apartments. There are 67 tenements (flats). Respondent No.3 and his father owns three flats in the said apartment. Respondent No.3 runs an institute in the name of Sikkim Manipal University. Respondent No.3 always making trouble and failed to pay the minimum maintenance amount and the electricity consumption charges to the associations. On account of his refusal to pay the maintenance and electrical charges, the owner and occupiers of other tenements are forced to share the said expenses. Respondent No.3 has not paid maintenance charges since 2012 and electricity charges since January-2016.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.1<span style=\"white-space:pre\">	</span>Consequently, a resolution was passed by the association of the owners to withhold the electric supply to his flats. The electricity consumed by each apartment would be calculated as per the separate meters. They would be collected by the apartment’s owners and deposited to the HESCOM. Since respondent No.3 failed to pay the electricity charges and maintenance charges, the electricity supplied to his apartments was withheld on 20.01.2017. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.2<span style=\"white-space:pre\">	</span>Infuriated by the same, high handedly he brought the police and got the same reconnected in an unsafe manner. He has also filed a false complaint against the petitioners. In order to oblige respondent No.3, the concerned police have registered the case and issued notices to the petitioners. The petitioners have offered their explanations by submitting several documents. Despite the same, the concerned police are continuing with the investigation.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>From the material placed on record, it is evident that petitioners and respondent No.3 are the owners/occupiers of apartments in “Aasharaya Empire” apartment. Petitioners claimed to be the office bearers of the association, which respondent No.3 dispute. He has alleged that some of the petitioners have made constructions of shops in the common area and rented out to various persons, a mobile tower is also installed in the terrace and entrance to the terrace is blocked and thereby preventing respondent No.3 and other owners/occupiers of the apartment from using the terrace. Based on these allegations, respondent No.3 has approached the Belagavi Municipal Corporation and in fact a demolition order is passed by the Commissioner. The Miscellaneous Appeal No.37/2006 filed against the said order by the association is dismissed by the learned II Additional District Judge, Belagavi.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>Perusal of the exchange of notice between the parties makes it evident that respondent No.3 has failed to pay the maintenance charges and electricity charges. He has also initiated action against the association for demolition of the illegal constructions made in the common area and a demolition order has been passed by the Belagavi Corporation. Thus, the dispute between petitioners and respondent No.3 is clearly a civil in nature. It appears to pressurise the petitioners, he has chosen to file a criminal complaint. Instead of taking action under the Karnataka Apartment Owners Act, 1972, he has chosen to file the complaint. Despite issuing notice and getting the reply from the petitioners, the concerned police have registered the case and initiated criminal action against the petitioners. Since, the dispute between the parties is purely civil in nature, the continuation of criminal proceedings would amount to abuse of the process of the Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 11.<span style=\"white-space:pre\">	</span>Learned counsel for respondent No.3 has relied upon the decision of the Hon’ble Supreme Court in the case of State of Bihar vs. Murad Ali Khan and Others2 (Murad Ali Khan) wherein the Hon’ble Supreme Court has held that Act may attract both criminal as well as civil liability. It is not in dispute that a single act may be both civil and criminal such as in a cheque bounce case, it may be a criminal liability under Section 138 of the Negotiable Instruments Act, 1881 as well as may give right to the complainant to recover the amount due under the said cheque in a suit. However, the facts of the present case does not attract any criminal liability. Complainant is at liberty to proceed against the petitioners under the civil liability and also under the provisions of the Karnataka Apartments Owners Act, 1972. He may also seek execution of the order passed by the Commissioner Belagavi, Municipal Corporation for demolition of the illegal construction made by the petitioners. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>In support of his arguments, learned counsel for the petitioners has relied upon the order passed by the Co-Ordinate Bench of this Court in Sri Vilas Deore vs. State of Karnataka and Another (Vilas Deore) wherein the criminal proceedings were quashed on the ground that it is a civil dispute and does not attract the criminal liability. It is aptly applicable on the case on hand. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space: pre;\">	</span>Thus, from the above discussions, I hold that the continuation of the criminal proceedings against the petitioners would amount to abuse of the process of the Court and as such it is liable to be quashed and accordingly, I proceed to pass the following:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1a9d1e7b81eaae282a40395dce652d23.jpeg', '36e69e64a2a4c701630862d59f7a57c7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-05', 1, '', '', '2023-06-01 13:05:14', '2023-06-05 08:22:27');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3016, 'PI16Z72gWK8fAaraky3FV7eL7', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Establishment of circuit Benches ensures speedy and qualitative justice to the needy citizens to their door steps and  creates an opportunity to young advocates to excel in profession. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>N.P. Amrutesh Vs The Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 21879 of 2014 decided on 30 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B. Veerappa and Justice K.S. Hemalekha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>It is the case of the petitioner that he is a practicing advocate of High Court of Karnataka at Principal Bench, Dharwad and Gulbarga Benches and he is a public spirited citizen, who has taken up several causes of the citizen as also of advocates, in the matter of maintenance of the Rule of law and efficacy of justice delivery system. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The petition raises several questions of law interalia as to the relative scope and scope of the Karnataka High Court Act, 1961 (for short, hereinafter referred to as \'Act 1961\') and establishment of Permanent Bench of the High Court of Karnataka under the provisions of Section 51(2) by converting the High Court of Karnataka, Circuit Benches at Dharwad and Gulbarga and of the State Re-organisation Act, 1956(for short, hereinafter referred to as \'S.R. Act, 1956) issued under Section 51(3) of the S.R. Act, 1956 in 2004/2008. It is further contended that the establishment of the said Benches, first, as Circuit Benches and later converting them as Permanent Benches is contrary to law and severely affects the public interest as it is contrary to the dictum of the Hon\'ble Supreme Court in the case of the Federation of Bar Association -vs- Union of India reported in (2000)6 SCC Page 715 apart from the recommendation of Hon\'ble Justice Jaswant Singh\'s Commission Report, since factually the number of cases, filed, disposed of and the expenditure incurred in maintenance of these establishments are not conducive to the public interest, as it affects the functional integrity and unity of the institution of the Hon\'ble High Court. The respondents are the respective authorities representing His Excellency, the Hon\'ble President of India, the Hon\'ble Chief Justice of Karnataka and His Excellency, the Governor of Karnataka thus answering the description of the term within the meaning of Article 12 of the Constitution of India and the 5th respondent is a Constitutional authority responsible for undertaking performance of audit, including financial audit of Public Institutions/Authorities. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>The petitioner further stated that the Mysore High Court Act, 1884 (for short, hereinafter referred to as \'Act, 1884\') was enacted to establish and constitute the High Court of Mysore and to provide for administration of Justice by the High Court of Mysore. Section 3 of Act, 1984 defines the term \'High Court\' which means the Chief Justice of the High Court and refers to the Chief Court or to the High Court in any Regulation, Act or other Laws for the time being in force and shall be deemed to have been made to the High Court of Mysore. The provisions of Section 17 of Act, 1884 prescribes that the High Court shall hold its sittings at such place as the State Government may, from time to time, appoint any other place by way of Circuit, interalia. Section 19 of Act, 1884 permits the High Court to make Rules for exercise of powers of one or more of its judges under the said Act or any other Enactment. The Rules made thereunder were required to receive sanction from the State Government under Section 21 of the Act. Section 14 of the Act 1961 has continued and retained the operation of provisions of Sections 17, 19 and 21 of the Act, 1884 interalia which has the force of law under Article 372 of the Constitution of India. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>It is the further stated of the petitioner that under the Constitution of India as framed in 1950, the State of Mysore was classified as Part-B State. Under Section 12 of the States Re- organisation Act, 1956 (for short, hereinafter referred to as \'S.R. Act, 1956) Parts-A, B and C of the Constitution were modified/deleted and following parts were substituted whereby Part-A state at Sl.No.8 Mysore with territories specified in Sub- section 1 of Section 7 of the States Re-organisation Act amended the provision of State of Mysore being Part-B State and formation of a new Mysore State was created under Section 7 of the S.R. Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>It is further stated of the petitioner that Sub-Section(1) of Section 7(b) of Belgaum District except Chandgad Taluks and Bijapur, Dharwad and Kanara Districts which were existing in the then State of Bombay and also under (c) Gulbarga District except Kodanga and Tandur Taluks, Raichur District except Alampur and Gadwal Taluks and Bidar District except Admadpur, Nilanga and Udgir Taluks and the portions specified in clause (d) of Sub-Section (1) of Section 3 in the existing State of Hyderabad became part of the new State of Mysore. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space:pre\">	</span>It is further stated that the Cabinet in its meeting dated 4.6.2013 approved the establishment of permanent Benches of the Karnataka High Court at Dharwad and Gulbarga and accordingly presidential order was issued after approval of the Cabinet. The notification for establishment of Permanent Benches of the Karnataka High Court at Dharwad and Gulbarga was issued in exercise of the powers under Section 51(2) of the S.R. Act after consultation with the Governor of Karnataka and the Chief Justice of the High Court of Karnataka. The Hon\'ble Supreme Court in Writ Petition No.379/2000 also held that the High Court is the best suited machinery to decide whether it is necessary and feasible to have a bench outside the principal seat of that High Court. It is submitted that the recommendations made by the Jaswanth Singh Commission was referred to the concerned authorities and the action was taken by the Central Government as per the existing procedure and that establishment of permanent Benches at Dharwad and Gulbarga was a policy decision taken by the Government in exercise of its sovereign functions. It is further contended that establishment of permanent Benches at Dharwad and Gulbarga is a public welfare measure. The establishment of permanent benches should not be construed as an investment for returns at all, but should only be taken as \"Pro Bono Publico\" measure, thereby sought to dismiss the writ petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>55.<span style=\"white-space:pre\">	</span>In view of the aforesaid rival contentions urged by learned counsel for parties the points that would arise for our consideration in the present writ petition are: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>\"(i)    Whether the petitioner has made out a case any public interest to quash the notification dated 19.10.2004 vide annexure-E, whereunder, Hon\'ble the Chief Justice, High Court of Karnataka, in exercise of powers under Section 51(3) of the State Reorganisation Act, 1956 with the approval of His Excellency the Governor of Karnataka, notified the sitting of Judges and Division Courts of the High Court of Karnataka at Dharwad and Gulbarga; notification dated 04.06.2008 vide Annexure-F, whereunder, it was notified that the cases arising from the Districts of Bagalkot, Bellary, Belgaum, Dharwad, Gadag, Haveri, Uttara Kannada- Karwar and Koppal will be heard and decided at Circuit Bench at Dharwad, and, case arising from the Districts of Bidar, Bijapur, Gulbarga and Raichur, will be heard and decided at the Circuit Bench at Gulbarga, and that sitting of Judges and Division Courts at Circuit Benches at Dharwad and Gulbarga will commence on 07.07.2008 and that the pending cases from the respective districts coming within the jurisdiction of the aforesaid two Circuit Benches will be transferred to respective circuit benches before 07.07.2008 and filing of new cases at circuit benches will be permitted from 07.07.2008; and The High Court of Karnataka (Establishment of Permanent Benches at Dharwad and Gulbarga) Order, 2013, dated 08.08.2013, vide Annexure-M, whereunder, the President of India, in exercise of powers conferred by sub Section (2) of Section 51 of the States Reorganisation Act, 1956 (37 of 1956), in consultation with the Governor of Karnataka and Chief Justice of the High Court of Karnataka, passed the Order to the effect that the permanent Bench of the High Court of Karnataka at Dharwad shall come into operation on 24.08.2013 and the permanent Bench of the High Court of Karnataka at Gulbarga shall come into operation on 31.08.2013? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)   Whether the petitioner has made out any case for issuance of a writ of mandamus to the 5th respondent to conduct performance audit including financial audit regarding the investment, expenditure and functional viability of Benches at Dharwad and Gulbarga, in exercise of extraordinary writ jurisdiction under Article 226 of Constitution of India?\"<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>65.<span style=\"white-space:pre\">	</span>In view of the above, the notifications came to be issued by Hon\'ble Chief Justice dated 19.10.2004 and 04.06.2008 exercising powers under Section 51(3) of the States Reorganization Act, 1956, based on the report of Hon\'ble Mr. Justice G.C.Bharuka Committee and, taking into consideration the interest of litigant public of northern Karnataka, it is just and proper. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>When majority of the members of Hon\'ble Mr. Justice G.C.Bharuka Committee submitted the report dated 06.06.2003 supporting the establishment of Benches, and consequently, when the Benches came to be established, except relying on the report of Jaswant Singh Commission which is of the year 1985 and the report of Justice Ashok Bhanu Committee, how the present writ petition involves \'public interest\' is not shown by the petitioner by producing any materials before the Court. Admittedly, the report of Justice G.C.Bharuka Committee, in which, majority of the members supported the establishment of Benches, is not challenged in the present writ petition. In the entire pleadings, there is no whisper as to how the report of the Committee headed by Justice G.C.Bharuka dated 06.06.2003 is against public interest. It is also not in dispute that His Excellency the Governor of Karnataka has also given approval in exercise of powers conferred under Section 51(2) of the States Reorganization Act, 1956 and the same is also not challenged by the petitioner.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>66.<span style=\"white-space:pre\">	</span>It is also not in dispute that, after establishment of Circuit Benches at Dharwad and Gulbarga, and after receiving complete proposal from the State Government in consultation with Hon\'ble Chief Justice of High Court of Karnataka and His Excellency the Governor of Karnataka, the Hon\'ble the then Chief Justice of Karnataka, in July 2009 requested the Central Government to notify the Circuit Benches of High Court of Karnataka at Dharwad and Gulbarga as permanent benches, under the provisions of sub section (2) of Section 51 of the States Reorganization Act, 1956, and to enhance the sanctioned strength of Judges of Karnataka High Court from 41 to 56. The Deputy Secretary to the government of India addressed a letter dated 03.11.2009 to the Chief Secretary, Government of Karnataka, stating that, with the approva of the Chief Justice of India, it has been decided to create 9 posts of additional Judges (06 for Dharwad Bench and 03 for Gulbarga Bench) in the Karnataka High Court and with this, the Judge strength of the Karnataka High Court will stand revised to 50 i.e., 33 permanent Judges and 17 additional Judges.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The proposal for establishment of permanent benches of High Court of Karnataka at Dharwad and Gulbarga was approved by Hon\'ble President of India on 08.08.2013, after approval of Central Cabinet, in exercise of powers under 51(2) of States Reorganization Act. Accordingly, the High Court of Karnataka (Establishment of Permanent Benches at Dharwad and Gulbarga) Order, 2013, came to be issued by Hon\'ble President of India, to the effect that the permanent Bench of the High Court of Karnataka at Dharwad shall come into operation on 24.08.2013 and the permanent Bench of the High Court of Karnataka at Gulbarga shall come into operation on 31.08.2013. The same is in accordance with law.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 67.<span style=\"white-space:pre\">	</span>It is undisputed fact that Circuit Benches were constituted on 04.06.2008 to start functioning w.e.f. 07.07.2008 and the present writ petition came to be filed on 16.05.2014 after lapse of more than six years. Absolutely there is no explanation for the inordinate delay of 06 years in filing writ petition challenging establishment of Circuit Benches. The petitioner is a practicing Advocate. As admitted by him, he is practicing in High Court of Karnataka, principal Bench and also at Dharwad and Kalaburagi Benches. He was sitting on the fence for more than 06 years watching the establishment of Benches, enhancement of Judges and Staff strength.   He woke up only when the Circuit Benches were made permanent Benches by the Hon\'ble President of India on 08.08.2013 and filed the writ petition on 16.05.2014.   Thereby, petitioner is not entitled to any relief. The powers exercised by the President under Section 51(2) of the States Reorganization Act, 1956, has not been challenged by the petitioner. The petitioner, being a practicing advocate, who has practiced in the principal Bench as well as at Benches at Dharwad and Kalaburagi, as admitted by him in the memorandum, has filed the present writ petition after lapse of six years from the date of establishment of Benches. Thereby, the writ petition is not maintainable and the same is liable to be dismissed. It is also not in dispute that, the recommendation made by Hon\'ble Chief Minister, approved by His Excellency the Governor of Karnataka, approved by Central Cabinet and Hon\'ble Chief Justice of India, with regard to establishment of permanent Benches has not been challenged by the petitioner. What is challenged is only annexure-M dated 08.08.2013 issued by Hon\'ble President of India in exercise of powers conferred under Section 51(2) of States Reorganization Act, 1956 after consonance with His Excellency the Governor of Karnataka and Hon\'ble Chief Justice of Karnataka. In the entire writ petition, petitioner has not questioned the powers of Hon\'ble President of India under Section 51(2) of the States Reorganization Act, 1956. In the absence of the same, the writ petition filed by petitioner is not maintainable and liable to be dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">69.<span style=\"white-space:pre\">	</span>Learned counsel for petitioner contended that Part V of the States Reorganization Act, 1956, is not applicable for constitution of permanent bench, as it is only temporary and transitional provision. He contended that, once the High Court Act, 1961 came into force, any of the provisions of States Reorganization Act, 1956 is not applicable. Thereby, there is no consistent stand of the petitioner as to which Act is applicable i.e., States Reorganization Act, 1956 or Mysore High Court Act, 1884 or Mysore/Karnataka High Court Act, 1961. The preamble of the Karnataka High Court Act, 1961 clearly depicts that, \"an Act to make provision for regulating the business and the exercise of powers of the High Court of the State of Karnataka in relation to the administr</font><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">ation of justice and to provide for its jurisdiction\".</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">The High Court must necessarily carry on its administrative functions from the principal seat, i.e,. the place where the High Court transacts every kind of business in all its capacities. The High Court, as such, is located there, but it may have more than one seat for transaction of judicial business.   The constitution and structure of High Court depends on statute creating it. Unlike the creation of a permanent bench under sub section (2) of Section 51 of the States Reorganisation Act, 1956, which must bring about a territorial bifurcation of the High Court, there is no territorial bifurcation of the High Court merely because the Chief Justice appoints other places under Section 51(3), where the Judges and division courts shall also sit. The power under Section 51(3) is in the unquestioned domain of Hon\'ble Chief Justice, the only condition being that he must act with the approval of His Excellency the Governor. It is basically an internal matter pertaining to the High Court. The Chief Justice has full power, authority and jurisdiction in the matter of allocation of business of the High Court which flows not only from provision contained in sub Section (3), but inheres in him in the very nature of things. The opinion of Chief Justice in this matter must therefore normally prevail, because it is for more convenient transaction of judicial business. The non obstante clause contained in sub Section (3) gives an overriding effect to the powers of Hon\'ble Chief Justice and Registrar General as contemplated under Section 3, is only one Registrar General for the High Court of Karnataka and there are Additional Registrar Generals appointed to the Circuit/Permanent Benches at Dharwad and Kalaburagi, as contemplated under Section 3 of the Act.   Legally, the position is quite clear under Section 51(3) of the Act. The Judge sitting at Dharwad and Kalaburagi constitute a part of High Court of Karnataka. They are as much as part of High Court of Karnataka, Bengaluru. And if we might say so distinguish part of the High Court of Karnataka, as if they were sitting under the same roof under which Judges functioning at High Court of Karnataka, Bengaluru. All that happens is that the Chief Justice under the powers given to him distributed the work to various Judges and various Divisional benches and acting under that power he distributes certain work to Judges sitting at Dharwad and Kalaburagi.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>70.<span style=\"white-space: pre;\">	</span>The political changes necessarily affected the constitution and structure of the High Court. Under the Constitution of India, Parliament alone has legislative competence to make law relating to entry 78 List I of Seventh Schedule which reads as under: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>78.Constitution and Organization (including vacations) of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practice before High Court. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Under the Scheme of States Reorganisation Act, 1956, 1956 (Act 37 of 1956) it would appear that having constituted the High Court for the State of Karnataka under Section 49(1) of the Act and conferred jurisdiction on it under Section 52 in relation to the territories of the State, formed and left to the various high constitutional functionaries designated in these subsections of Section 51 of the Act to determine the place where the principal seat of the High Court should be located and places where permanent benches of the High Court may be established, as has been done in State of Karnataka, one bench at Dharwad and one bench at Kalaburagi to ensure access justice to the door step of litigants or where the Judges of division of high court may also sit, on the reorganisation of States as from appointed day i.e., 01st November 1956, the territories of the State of Karnataka. On the second recommendation made by majority of five Judges of the Committee consisting of seven Judges committee, two circuit benches viz., Dharwad and Kalaburagi, came to be established, taking into consideration the overall circumstances, with the approval of all constitutional functionaries as contemplated under Section 51 of the States Reorganization Act, 1956. The cabinet decision was taken by Government of India and was approved by the Hon\'ble Chief Justice of India. This Court cannot sit over the decision of not only Government of India but also decision of Hon\'ble Chief Justice of India. One cannot assume or impute to a high constitutional authority, like the Chief Justice of India, such procedural or substantive error. If Parliament has reposed faith in the Chief Justice of India as the paterfamilias of the judicial hierarchy in this Country, it is not open for anyone to contend that the Chief Justice of India might have given his concurrence without application of mind or without callig for the necessary inputs. Admittedly, in the present case, on the recommendation made by the committee consisting of Senior Judges of this Court about establishment of circuit benches, same was approved by Hon\'ble Chief Minister and with the approval from His Excellency the Governor of Karnataka, Chief Justice of Karnataka made a proposal for establishment of circuit benches and the same was approved by Central Cabinet as well as Hon\'ble Chief Justice of India. Accordingly, Hon\'ble President of India, by the order dated 08.08.2013 concurred for establishment of permanent benches at Dharwad and Kalaburagi in exercise of powers under Section 51(2) of the States Reorganization Act, 1956. Thereby, the petitioner has not made out any ground to quash the notification issued by Hon\'ble the President of India. On that ground also, the writ petition is liable to be dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\"> 71.<span style=\"white-space: pre;\">	</span>It is undisputed fact that the opinion of the Chief Justice to appoint the seat of the High Court at a place other than the principal seat under sub section (3) of Section 51 of the Act must therefore normally prevail because it is for the more convenient transaction of judicial business. The Judges and Division Courts at Dharwad and Kalaburagi are part of the High Court of Karnataka, Bengaluru, which is the principal seat and they exercise the jurisdiction as Judges of High Court of Karnataka. Hence it is apparent that, by virtue of power conferred on the Chief Justice under sub section (3) of Section 51 of the Act, the Chief Justice can establish benches, at such place or places where the Judges and Division Courts may sit and he has power and authority to issue administrative directions for filing of cases or institution of proceedings at such place or places. By that process, there will be no territorial bifurcation of the High Court of Karnataka, merely because of the arrangement made in terms of the impugned notifications vide Annexures-E and F dated 19.10.2004 and 04.06.2008 respectively. The Hon\'ble Chief Justice of High Court has the prerogative to distribute the business of the High Court, both judicial and administrative. The Chief Justice is the master of roster and that he alone has the right and power to decide how the benches of the High Court are to be constituted, which Judge has to sit along and which cases he can and as required to hear and also as to which Judges shall constitute Division Bench and what work those benches shall do.   It cannot be held to be wrong or illegal. Thereby, there is nothing wrong in specifying that new cases arising from certain Districts shall be filed at a particular circuit bench, as those cases are to be heard and decided by Judges sitting at that circuit bench. Such an arrangement, is for administrative convenience and advantage of the litigants. \"After all, the Courts are meant for the benefit of litigant public and hence, their convenience should be the paramount consideration and not for the lawyers or Judges.\" Thereby, the impugned notifications Annexures-E, F and M issued by the constitutional authorities are positive and concrete step to achieve the goal of providing \"easy and less expensive access to justice to all.\" On that ground also, the writ petition is liable to be dismissed.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">73.<span style=\"white-space: pre;\">	</span>Admittedly in the present case, on the demand made by the Bar Association, Dharwad, the Chief Justice constituted a Committee consisting of seven Judges to consider the question as to whether it is necessary to have bench of the High Court in northern Karnataka. Majority of the committee members, i.e., five judges submitted the report dated 06.06.2003 opining that the Hon\'ble Chief Justice may recommend for establishment of permanent benches of High Court at Dharwad and Kalaburagi. Thereafter, based on majority recommendation, the Hon\'ble Chief Minister requested to constitute the Bench and Hon\'ble the Chief Justice after considering the entire material on record and subject to satisfaction, agreed to constitute benches of the High Court of Karnataka away from principal seat. Thereby, the order passed by the Hon\'ble Supreme Court in the case of Federation of Bar Association filed under Article 32 of the Constitution of India is based on entirely different facts and circumstances. Admittedly, the Federation Bar Association in Karnataka is not a party to the present writ petition.   Thereby, the said judgement is no way helpful to the case of the petitioner.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>83.<span style=\"white-space: pre;\">	</span>Keeping the aforesaid principles laid down by the Hon\'ble Supreme Court and the provisions of States Reorganization Act, 1956, Mysore High Court Act, 1884 and Karnataka High Court Act, 1961, and on careful perusal of the pleadings, it is pertinent to note that, except the petitioner who is a practicing advocate, no other advocates who are practicing within the jurisdiction of Dharwad and Kalaburagi-consisting of 12 Districts (110 talukas) or none of the litigants have any grievance about establishment of Circuit/Permanent Benches and none of the Bar Associations at Taluka and District places including Dharwad and Kalaburagi have any grievance. A careful perusal of the pleadings in the writ petition filed by the petitioner is mainly on the basis of Jaswantsingh report and the dictum of the Hon\'ble Supreme Court in the case of Federation of Bar Association in Karnataka. In the said case, the Hon\'ble Supreme Court while considering the report submitted by the five Judges committee constituted by the then Hon’ble Chief Justice of Karnataka and while exercising powers under Article 32 of the Constitution held that the High Court is the best suited machinery to decide whether it is necessary and feasible to have a bench outside the principal seat of that High Court. The said judgment is based on the report submitted by the committee and there is no bar for the Chief Justice to decide whether it is necessary and feasible to have a Bench  outside the principal seat of the High Court. The petitioner has not gone through the subsequent report of the Justice G.C.Bharuka Committee and the representations made by the President of Bar Association, Dharwad and the recommendation made by Hon\'ble Chief Minister of Karnataka, and approval by His Excellency the Governor of Karnataka and cabinet, Central Government and Chief Justice of India. Distance of the geographical areas, demography and other criteria and disparities in facilities, non fulfilling of the long time cherished desire of the people of northern Karnataka and greater anguish and frustration is not noticed by the petitioner and has filed the present writ petition against the \"will of public at large,\" especially against the citizens of northern Karnataka, as the petitioner is the resident of Bengaluru. Without knowing the topography, problems faced by the public at large the present writ petition is filed for his personal glory and gain. Thereby, absolutely there is no public interest made out in the present writ petition and in fact, \"it is against the public interest and against the people starving for justice, ignoring the dictums of this Court and the Hon\'ble Supreme Court.\" Only a person acting bonafide and having sufficient interest in the proceeding of PIL will alone have locus standi and can approach the court to wipe out the tears of poor and needy, suffering from violation of their fundamental rights. Admittedly, though the present writ petition is filed as a Public Interest Litigation, after going through the pleadings and material placed on record, \"it appears that this is nothing but to bring the tears in the eyes of poor and needy who are suffering from the violation of fundamental rights and starving for justice.\" Thereby, the PIL brought before this Court is either for personal gain of the petitioner or at the instance of somebody to ensure the struck down of the establishment of the Circuit/permanent benches at Dharwad and Kalaburagi, deserves rejection at the threshold. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">84.<span style=\"white-space: pre;\">	</span>It is well settled that when people are aware of their rights, their desire to get the rights realised is enhanced and they would like to knock at the doors of the Court to shape their aspiration into reality.    Therefore, establishment of Dharwad and Gulbarga Benches is the need of an hour and is a basic requirement during the year 2008. The idea of speedy and quality justice dispensation system cannot be treated with status quoist approach. The consumers of justice expect prompt and effective delivery of justice in an atmosphere that is acceptable. Therefore, infrastructure enhancement will go a long way in strengthening functioning of the court and would improve the productivity in the justice delivery system. A court complex is not just a building. It is the building of justice which breathes and infuses life into the exalted and sublime ideals of justice. The widening gap between the ideal and the real and between the vision and the pragmatic realisation of justice has to be bridged by proper access to justice for all. The said aspect of the matter was not considered in the proper perspective by the petitioner, who filed the present PIL. The present writ petition is against the interest of the public at large. Therefore, the petitioner is not entitled to any relief before this Court under the extraordinary jurisdiction of this Court.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>94.<span style=\"white-space:pre\">	</span>The Hon\'ble Supreme Court in the case of Dattaraj Nathuji Thaware -vs- State of Maharashtra and Others reported in AIR 2005 SC 540 held that the petitioner, who comes to the Court for reliefs in interest must come not only with clean hands like any other writ petitioner, but also with a clean heart, clean mind and clean objective and further observed that, it is high time for the Bar Councils and Bar Associations to ensure that no Member of the Bar becomes party as the petitioner or in aiding and/or abetting filing frivolous petitions, carrying the attractive brand name of \'Public Interest Litigation\'. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>95.<span style=\"white-space:pre\">	</span>In view of the above dictum, the petitioner is not entitled for any relief before this Court and the writ petition is liable to be dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>96.<span style=\"white-space:pre\">	</span>The Hon\'ble Supreme Court in the case of R.N. Godavarman Thirumalpad -vs- Union of India reported in AIR 2006 SC 1774 held that a person acting bonafide alone can approach the Court in public interest. Such a remedy is not open for unscrupulous person, who acts, in fact, for someone else.   In the peculiar facts and circumstances of the present case, we see no bonafide on the part of the petitioner that too a practicing advocate of this Court to file a public interest litigation, infact, it is against public interest at large, who were starving for tension free life through speedy justice delivery system and access to justice. On that ground also, the writ petition is liable to be dismissed.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>98.<span style=\"white-space:pre\">	</span>For the reasons stated above, the points raised in the present writ petition   is answered in the negative holding that the petitioner has not made any public interest to quash the notification dated 19.10.2014, Annexure-E and the notification dated 4.6.2008 Annexure-F issued by the Chief Justice of Karnataka and the Presidential Order dated 8.8.2013 Annexure- M issued by the President of India in exercise of powers conferred under Sub-section (2) of Section 51 of the State Re- organization Act, 1956 and the petitioner has not made out any case to issue writ of mandamus directing the 5th respondent to conduct performance audit including financial audit with regard to investment, expenditure and functional viability of the Benches at Dharwad and Kalaburagi and it\'s sustenance is in public interest in exercise of extra ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 99.<span style=\"white-space:pre\">	</span>In view of the facts and circumstances of the present case and the petitioner, who wasted public precious time in filing frivolous public interest litigation to struck down the Benches at Dharwad and Kalaburagi, though this Court is inclined to impose heavy costs on the petitioner, but taking into consideration that the petitioner is aged about 62 years as on today and he has become senior citizen and infact earlier had filed genuine public interest litigations to protect the interest of the general public at large, we decline to impose any costs on him with an advise to the petitioner - practicing advocate to be cautious in future in filing such frivolous litigations and shall ensure to protect precious time of the Court as the Court is not anybody\'s personal property, but it is a Divine of Temple. People approach the Court after every knock to all the doors as a last resort. It is the temple worshipped by every citizen of this nation regardless of religion, caste, sex or place of birth.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>RESULT </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>102.<span style=\"white-space:pre\">	</span>In view of the above, we pass the following:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Writ Petition is dismissed as being devoid of any merit;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '793acc1bb7b4844c7ac2543a8cdc1d30.jpeg', 'a72c108e337bfdc1fc1d892cddc595c3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-06', 1, '', '', '2023-05-31 13:26:07', '2023-06-06 11:20:53');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3017, 'LDhQ5ZMpzSRtCF8tZB4jX7X1N', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Escaped assessment under the IT Act.  \'Income chargeable to tax\' is income as arising out of the  capital gains and not the entire sale consideration. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sanath Kumar Murali Vs The Income Tax Officer and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 7647 of 2023 decided on 24 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S Sunil Dutt Yadav.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner has challenged the order at Annexure-\'A\' dated 21.03.2023 passed under Section 148A(d) of the Income Tax Act, 1961 (\'I.T. Act\' for brevity) for the Assessment Year 2016-2017 and has also sought for quashing of the impugned notice dated 21.03.2023 bearing DIN and Notice No. ITBA/AST/S/148_1/2022-23/1051076610(1) issued by respondent No.1 under Section 148 of the I.T. Act for the Assessment Year 2016-2017 at Annexure-\'B\'.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space:pre\">	</span>On 03.03.2023, the notice under Section 148A(b) of the I.T. Act came to be issued to the petitioner stating that information was received which suggested that income chargeable to tax for the Assessment Year 2016-2017 has escaped assessment within the meaning of Section 147, detailing the information alongwith the supporting documents. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>What needs to be noted in the present case is that the income stated to have escaped assessment which has been taken note of seeking to re-open the assessment for the Assessment Year 2016-2017 is the sale transaction with Sri D.V. Venkatachalapathi. The time prescribed for such reopening of assessment by virtue of proceedings under Section 148 is provided under Section 149. Relevant extract of Section 149 reads as follows:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> \"149.(1) No notice under section 148 shall be issued for the relevant assessment year.- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a)<span style=\"white-space:pre\">	</span>if three years have elapsed from the end of the relevant assessment year; unless the case falls under clause (b);</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b)<span style=\"white-space:pre\">	</span>if three years, but not more than ten years, have elapsed from the end of the relevant assessment year unless the Assessing Officer has in his possession books of accounts or other documents or evidence which reveal that the income chargeable to tax, represented in the form of -</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>an asset;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>expenditure in respect of a transaction or in relation to an event or occasion; or</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space:pre\">	</span>an entry or entries in the books of accounts, which has escaped assessment amounts to or is likely to amount to fifty lakh rupees or more\" </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>It is clear that there is a bar prohibiting the issuance of notice under Section 148 of I.T. Act if three years has elapsed from the end of the relevant Assessment Year unless the case falls under Clause- (b).   Accordingly, no notice under Section 148 could be issued after three years from the end of Assessment Year 2016-2017, is subject to the exception of extended period of limitation of three years, but not more than ten years from the end of relevant Assessment Year, if the Assessing Officer has material which would reveal that \"the income chargeable to tax\" which has escaped the assessment amounts or is likely to amount to Rs.50.00 lakh rupees or more.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>15.<span style=\"white-space:pre\">	</span>In the present case on hand, clearly, the income that has escaped assessment is the proceeds from the sale as made out from perusal of the Annexure to the show cause notice at Annexure-\'C\'. In case of income arising from the sale of property which may fall within the purview of Section 48 so as to amount to capital gains, it is relevant to notice that Section 48 provides for mode of calculation of income chargeable under the head \'Capital Gains\'.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>\"48. The income chargeable under the head \"Capital gains\" shall be computed, by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset the following amounts, namely:-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(i)<span style=\"white-space:pre\">	</span>expenditure incurred wholly and exclusively in connection with such transfer,</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(ii)<span style=\"white-space:pre\">	</span>the cost of acquisition of the asset and the cost of any improvement thereto;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(iii)<span style=\"white-space:pre\">	</span>in case of value of any money or capital asset received by a specified person from a specified entity referred to in sub-section (4) of section 45, the amount chargeable to income-tax as income of such specified entity under that sub-section which is attributable to the capital asset being transferred by the specified entity, calculated in the prescribed manner: … Provided further that where long- term capital gain arises from the transfer of a long-term capital asset, other than capital gain arising to a non-resident from the transfer of shares in, or debentures of, an Indian company referred to in the first proviso, the provisions of clause (ii) shall have effect as if for the words “cost of acquisition” and “cost of any improvement”, the words “indexed cost of acquisition” and “indexed cost of any improvement” had respectively been substituted:….<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>16.<span style=\"white-space:pre\">	</span>The words used in Section 149(1)(b) is that the \'income chargeable to tax\' which has escaped assessment amounts to or is likely to amount to fifty lakh rupees or more for that year. The income chargeable under the head of \'capital gains\' which would arise in case of sale transaction is as provided under Section 48, which provides that income chargeable under the head of \'capital gains\' shall be computed by deducting from the full value of the consideration, the cost of acquisition and in the event, the property purchased has been held for a period beyond three years in terms of second proviso to Section 48, the words, \'cost of acquisition\' is to be substituted by the words, \'indexed cost of acquisition\'.   This material is pointed out in the reply at Annexure-\'F1\' furnished to the show cause notice, which ought to be taken note of prior to the issuance of notice under Section 148A of I.T. Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>Clearly when the procedure is followed culminating in an order passed under Section 148(A)(d), the Authority is required to apply its mind and consider the reply of the assessee and pass a considered order. In the present case, the respondent Authority has not applied its mind to the reply filed, nor noticed the legal position while deciding as to the application of the extended period under Section 149(1)(b) of the I.T. Act. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>18.<span style=\"white-space:pre\">	</span>Accordingly, in the present case, the words found in Section 149 which is \'income chargeable to tax\' must be read in terms of \'income\' as arising out of the \'Capital Gains\' as provided under Section 48 and this is the only manner of understanding the words, \'income chargeable to tax under Section 149(1)(b) of I.T. Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>19.<span style=\"white-space:pre\">	</span>The contention of the Revenue that under Section 149 what is required to be taken note of, is the \'income that has escaped  assessment\'  being the entirety of sale consideration of Rs.55,77,700/- cannot be accepted, in light of the express words in the  statutory  provision  \'……….income  chargeable to  tax……  which  has  escaped  assessment amounts to or is likely to amount to fifty  lakh rupees or more\'. It cannot be stated that since the stage at which the notice is issued is at a premature stage, the entirety of consideration of Rs.55,77,700/- ought to be taken note of. A plain reading of Section 48 would provide that the entirety of sale consideration does not constitute \'income\'. The memorandum explaining the provisions of Finance Act, 2021 does not in any way lead to giving a different interpretation to the words, \'income chargeable to tax\'. The words used under Section 149 for the purpose of extended time limit is to be interpreted in terms of the plain wordings of Section 149 and cannot be construed differently while relying on any executive instruction.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>21.<span style=\"white-space:pre\">	</span>Accordingly, the order at Annexure-\'A\' dated 21.03.2023 passed under Section 148A(d) of the I.T. Act is set aside and the notice at Annexure-\'B\' dated 21.03.2023 issued  under Section  148 of the I.T. Act by the respondent No.1 for the Assessment Year 2016-2017 is set aside. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>The Writ Petition is accordingly allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b0a2648518cfee64529eb7f4aa05a4a3.JPG', 'b257a5535388e9994cc44e0da173774d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-01', 1, '', '', '2023-05-31 13:52:03', '2023-06-01 08:15:20'),
(3018, 'O0vidTrCvUUQNOXe9raYOvuLT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court repels the challenge to constitutional validity of Section 37A of the Foreign Exchange Management Act based on manifest arbitrariness. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Xiaomi Technology India Private Limited Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 19973 of 2022 decided on 21 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner-Xiaomi Technology India Private Limited (hereinafter referred to as ‘the Company’ for short) has knocked at the doors of this Court questioning the constitutional validity of Section 37A of the Foreign Exchange Management Act, 1999 (‘the Act’ for short) and has sought certain consequential prayers of quashment of seizure order under Section 37A(1) and confirmation order of such seizure under Section 37A(3) of the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Shorn of unnecessary details, facts germane to be noticed are as follows:- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The petitioner claims to be a Private Limited Company incorporated under the provisions of the Companies Act, 2013 and it further claims that the Board of Directors of the petitioner/ Company is constituted only of Indian citizens. More than 1500 employees and around 50,000 Indian families are directly or indirectly dependent on the business of the petitioner who, as claimed by the petitioner, are Indian citizens. The petitioner gets incorporated as a Private Limited Company on 7-10-2014 as a subsidiary of Xiaomi Singapore Private Limited and Xiaomi H.K. Limited and is engaged in the business of procurement, supply and distribution of Xiaomi products in India which is popularly referred to as ‘MI’. The business of the petitioner includes mobile phones, smart phones, mobile phone accessories and peripherals, smart watches, televisions, network component devices, laptops, computers, television accessories and the list goes on. The petitioner operates as a re-seller/distributor of mobile phones and related products in India. It is mainly in the distribution segment.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>The office bearers of the Company admitted that royalty appears to have been paid by Xiaomi Technology India Private Limited as per the directions of certain persons in the Xiaomi group. On 29-04-2022, the Directorate of Enforcement communicates a mail to the petitioner informing it of seizure of `5551,27,15,824/- under Section 37A of the Act from the current bank account of the petitioner. This is the impugned seizure order in the petition. The seizure order notices that there were reasons to believe that the royalty paid by the petitioner to Qualcomm is foreign exchange held outside India by the group. The reason for seizure was on the ground that the respondent/Directorate of Enforcement found during the course of investigation that no agreement or legal basis was available for remitting the money by the petitioner. Royalty was not a part of the product cost. No work order or purchase order was placed. No intellectual property rights were received. Based upon the impugned seizure, seizure order was passed on 29th April 2022 invoking Section 37A(1) of the Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 9.<span style=\"white-space: pre;\">	</span>The petitioner files a petition before this Court calling in question an order of seizure / freezing dated 29-04-2022.   This Court initially grants an interim order of permitting operation of the account for particular purposes.   Later, this Court in terms of its order dated 05-05-2022 on the ground that the seizure order under Section 37A(1) of the Act is yet to be confirmed by the appropriate authority under Section 37A(3) of the Act, confirmed / clarified the interim order dated 05-05-2022 as clarified on 12-05-2022, to continue during the pendency of the confirmation proceedings. On the aforesaid score, the writ petition comes to be disposed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">10.<span style=\"white-space: pre;\">	</span>After the disposal of the petition, the confirmation of the seizure order dated 29-04-2022 comes to be passed by the 6th respondent. It is the seizure order dated 29-04-2022 and the confirmation order dated 19-09-2022 of the seizure of `5551,27,15,824/- is what drives the petitioner to this Court in the subject petition. While raising a challenge to the seizure order and the confirmation order, the petitioner has also challenged the constitutional validity of Section 37A of the Act, as the impugned proceedings are initiated and are sought to be continued under Section 37A of the Act.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>I have given my anxious consideration to the submissions made by the learned senior counsel appearing for petitioner, learned Additional Solicitor General and the learned counsel appearing for respondents and have perused the material on record. In furtherance whereof, the following issues arise for my consideration: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>I.<span style=\"white-space: pre;\">	</span>Whether the writ petition would be maintainable on the prayer that is sought i.e., to hold Section 37A of the Act to be unconstitutional on the ground that it is manifestly arbitrary and violative of Article 14 of the Constitution of India?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>II.<span style=\"white-space: pre;\">	</span>Whether Section 37A of the Act gives uncanalised and unguided power on it suffering from absence of safeguards? and</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> III.<span style=\"white-space: pre;\">	</span>Whether the order passed by the authorized officer suffers from non-application of mind?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Issue No.I: Whether the writ petition would be maintainable on the prayer that is sought i.e., to hold Section 37A of the Act to be unconstitutional on the ground that it is manifestly arbitrary and violative of Article 14 of the Constitution of India?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>Since submissions and contra submissions are with regard to constitutional validity of the Act and maintainability of the writ petition in which challenge is to the vires of Section 37A of the Act and those submissions cutting at the root of the matter, I deem it appropriate to consider maintainability of the petition qua the challenge to the constitutional validity of Section 37A of the Act at the outset. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>The constitutional validity of Section 37A of the Act is called in question by the petitioner. The petitioner is a Company, though registered in India, it is incorporated under the provisions of the prevailing Companies Act as obtaining in the People’s Republic of China. The subsidiary companies are many in number, one of them is incorporated in India under the Companies Act, 1956. Therefore, a Company which has its roots in a country outside India can maintain a petition challenging the constitutional validity of any laws of this country on the ground that it violates its fundamental rights is the question that requires to be answered.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>18...  The Apex Court in the case of INDO-CHINA STEAM NAVIGATION CO.LTD., (supra) while considering the submission with regard challenge to Section 52-A of the Sea Customs Act, 1878 for it to be violative of Articles 14, 19 and 31 of the Constitution has held that it could not be challenged by an outsider. The challenge therein was with regard to Article 19(1)(f) coupled with Articles 14 and 31. The Court answers that in the garb of invoking Articles 14 and 31 what is challenged is the purport of the Act qua Article 19. Therefore, the Court holds that Article 19 would not be available to any person, who is not a citizen of this country. Same goes with the Division Bench judgment of Allahabad High Court where at para-14 it is clearly held that Article 19(1)(d) and (e) are unavailable to foreigners because these rights are conferred only on the citizens. Rights under Article 19 are withheld expressly to foreigners. The Division Bench also holds that it is of the opinion that foreigners enjoy some fundamental rights of this country but the same are confined to Article 21 of the Constitution of India which deals with life and liberty and does not include the rights guaranteed under Article 19 of the Constitution. The question therein was right to free trade under Article 19(1)(g) and, therefore, held that it was available only to Indian citizens and not to foreigners. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>19.<span style=\"white-space:pre\">	</span>On a coalesce of the judgments rendered by the Apex Court and that of different constitutional Courts what would unmistakably emerge is that Articles 14 and 21 of the Constitution of India, the nation’s Grundnorm would be available to every person and they are not restricted to the citizens of the country only. However, Articles 15, 16 and 19 are restricted only to citizens of this country. The challenge in the case at hand is on the ground that the provision is unreasonable or manifestly arbitrary, both of which would come within the ambit of Article 14 of the Constitution of India and the petition challenging the constitutional validity on the ground that it is manifestly arbitrary and violative of Article 14 or unreasonable, again being violative of Article 14, are all maintainable contentions before the constitutional Courts of the country as they are ‘person centric’ and not ‘citizen centric’. Therefore the first issue that has arisen for consideration qua maintainability is answered in favour of the petitioner holding the petition to be maintainable qua the challenge.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Issue No.II: Whether Section 37A of the Act gives uncanalised and unguided power on it suffering from absence of safeguards.?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space:pre\">	</span>The Competent Authority has some obligation in terms of sub-sections (3) and (4) of Section 37A. The Competent Authority is to dispose of the petition within a period of 180 days from the date of seizure, after giving an opportunity of being heard to the representatives of the Directorate of Enforcement and the aggrieved person. Sub-section (4) mandates that the Competent Authority confirming seizure shall continue such seizure till the disposal of adjudication proceedings and thereafter the Adjudicating Authority is to pass appropriate directions as regards seizure that is made. Sub-section (5) permits any person aggrieved by the order of the Competent Authority to prefer an appeal before the Appellate Tribunal. This is the broad frame work of the Act i.e., Section 37A. Whether the said provision is unconstitutional, for it suffering from manifest arbitrariness and unreasonableness as alleged, is what is to be considered. Manifest arbitrariness, is trite, is on a higher pedestal than that of the word ‘arbitrariness’. The Courts have interpreted the tests that are to be considered while declaring a provision of law to be unconstitutional on the ground that it is manifestly arbitrary.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>28.<span style=\"white-space:pre\">	</span>It now becomes germane to consider whether Section 37A of the Act, which is called in question, suffers from any arbitrariness or arbitrariness, that is palpable and demonstrably manifest. The reasons so submitted by the petitioner seeking a declaration that Section 37A of the Act is unconstitutional are that the provision gives unbridled, unfettered, unguided, uncanalised, power to attach bank accounts on mere suspicion, without any reason to believe, and attachment of bank account does violate right to property under Article 300A of the Constitution of India. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>29.<span style=\"white-space:pre\">	</span>The dominant submission is that there are no checks and balances in the power that can be exercised under Section 37A of the Act. I decline to accept the said submission on sheer examination of the said provision. Section 37A of the Act, which was given life in the year 2015, has six sub-sections. Sub-section (1) of Section 37A empowers the authorized officer prescribed by the Central Government who has reason to believe that any foreign exchange, foreign security or any immovable property, situated outside India, is suspected to have been held in contravention of Section 4, he may after recording the reasons in writing by an order, seize value equivalent, situated within India, of such foreign exchange, foreign security or immovable property. Sub-section (1) has several aspects upon receipt of information or otherwise. Therefore, there should be information and it should be by the prescribed officer of the Central Government. He should have reasons to believe and suspicion of a property to have been held in contravention of Section 4. The order of seizure under sub-section (1) will be only after recording of reasons in writing and it shall be only of value equivalent that is situated in India. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>30.<span style=\"white-space:pre\">	</span>Sub-section (2) mandates that the order of seizure along with the material shall be placed before the Competent Authority, again appointed by the Central Government within 30 days from the date of such seizure. Therefore, the first rung of check is by the Competent Authority not below the rank of Joint Secretary to Government to examine the seizure which would be placed before the authority within 30 days of such seizure. Sub-section (3) mandates that the Competent Authority shall dispose of the petition within a period of 180 days from the date of seizure, by either confirming or setting aside such order of seizure. While doing so, an opportunity of being heard should be granted to the aggrieved person and representatives of the Directorate of Enforcement. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>31.<span style=\"white-space:pre\">	</span>Sub-section (4) mandates that the order of the competent authority confirming seizure of equivalent asset shall continue till the disposal of adjudication proceedings and thereafter the Adjudicating Authority would pass appropriate orders or directions in the adjudication order with regard to further action qua the subject matter i.e., the seizure made under sub-section (1). The proviso to Section 37A (4) permits that at any stage of the proceedings under the Act if the aggrieved person discloses the fact of such foreign exchange, foreign security or immovable property and brings it back to India, then the Competent Authority or the Adjudicating Authority on receipt of such application from the aggrieved person, after following the principles of natural justice shall pass appropriate orders as he deems fit including setting aside of the seizure under sub-section (1). Sub-section (5) mandates that any person aggrieved by any order of the competent authority may prefer an appeal to the Appellate Tribunal. Against the order of the Appellate Tribunal judicial review shall be available before this Court. These are the broad contours of safeguards under Section 37A of the Act. It is not, a rung or two rungs, of safeguards and checks, but it is at every rung. The seizure order under sub-section (1) to become final has to pass muster through several ladders of administrative, quasi judicial and judicial review. In the considered view of this Court, Section 37A cannot be declared to be unguided, unfettered, unbridled, uncanalised, whimsical or irrational and can be acted upon only on suspicion in terms of Section 4 of the Act. Suspicion may trigger seizure.  Seizure by itself is not final. There are several procedures after such seizure. Therefore, the submission that it is manifestly arbitrary is to be noted only to be rejected, as the very submission is fundamentally flawed.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>28.<span style=\"white-space:pre\">	</span>It now becomes germane to consider whether Section 37A of the Act, which is called in question, suffers from any arbitrariness or arbitrariness, that is palpable and demonstrably manifest. The reasons so submitted by the petitioner seeking a declaration that Section 37A of the Act is unconstitutional are that the provision gives unbridled, unfettered, unguided, uncanalised, power to attach bank accounts on mere suspicion, without any reason to believe, and attachment of bank account does violate right to property under Article 300A of the Constitution of India. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>29.<span style=\"white-space:pre\">	</span>The dominant submission is that there are no checks and balances in the power that can be exercised under Section 37A of the Act. I decline to accept the said submission on sheer examination of the said provision. Section 37A of the Act, which was given life in the year 2015, has six sub-sections. Sub-section (1) of Section 37A empowers the authorized officer prescribed by the Central Government who has reason to believe that any foreign exchange, foreign security or any immovable property, situated outside India, is suspected to have been held in contravention of Section 4, he may after recording the reasons in writing by an order, seize value equivalent, situated within India, of such foreign exchange, foreign security or immovable property. Sub-section (1) has several aspects upon receipt of information or otherwise. Therefore, there should be information and it should be by the prescribed officer of the Central Government. He should have reasons to believe and suspicion of a property to have been held in contravention of Section 4. The order of seizure under sub-section (1) will be only after recording of reasons in writing and it shall be only of value equivalent that is situated in India. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>30.<span style=\"white-space:pre\">	</span>Sub-section (2) mandates that the order of seizure along with the material shall be placed before the Competent Authority, again appointed by the Central Government within 30 days from the date of such seizure. Therefore, the first rung of check is by the Competent Authority not below the rank of Joint Secretary to Government to examine the seizure which would be placed before the authority within 30 days of such seizure. Sub-section (3) mandates that the Competent Authority shall dispose of the petition within a period of 180 days from the date of seizure, by either confirming or setting aside such order of seizure. While doing so, an opportunity of being heard should be granted to the aggrieved person and representatives of the Directorate of Enforcement. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>31.<span style=\"white-space:pre\">	</span>Sub-section (4) mandates that the order of the competent authority confirming seizure of equivalent asset shall continue till the disposal of adjudication proceedings and thereafter the Adjudicating Authority would pass appropriate orders or directions in the adjudication order with regard to further action qua the subject matter i.e., the seizure made under sub-section (1). The proviso to Section 37A (4) permits that at any stage of the proceedings under the Act if the aggrieved person discloses the fact of such foreign exchange, foreign security or immovable property and brings it back to India, then the Competent Authority or the Adjudicating Authority on receipt of such application from the aggrieved person, after following the principles of natural justice shall pass appropriate orders as he deems fit including setting aside of the seizure under sub-section (1). Sub-section (5) mandates that any person aggrieved by any order of the competent authority may prefer an appeal to the Appellate Tribunal. Against the order of the Appellate Tribunal judicial review shall be available before this Court. These are the broad contours of safeguards under Section 37A of the Act. It is not, a rung or two rungs, of safeguards and checks, but it is at every rung. The seizure order under sub-section (1) to become final has to pass muster through several ladders of administrative, quasi judicial and judicial review. In the considered view of this Court, Section 37A cannot be declared to be unguided, unfettered, unbridled, uncanalised, whimsical or irrational and can be acted upon only on suspicion in terms of Section 4 of the Act. Suspicion may trigger seizure.   Seizure by itself is not final. There are several procedures after such seizure. Therefore, the submission that it is manifestly arbitrary is to be noted only to be rejected, as the very submission is fundamentally flawed.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>33.<span style=\"white-space:pre\">	</span>On a coalesce of the judgments relied on by the petitioner and others that are quoted hereinabove, as also the reasons rendered by this Court, what would unmistakably emerge is that Section 37A of the Act does not suffer from any manifest arbitrariness for this Court to strike it down on any of the grounds urged by the petitioner. The purpose behind the amendment is already quoted, and checks and balances available, under Section 37A are also quoted and analysed. Therefore, the second point that arose for consideration is answered against the petitioner.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Issue No.III:: Whether the order passed by the authorized officer suffers from non-application of mind?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>34.<span style=\"white-space:pre\">	</span>In the teeth of the aforesaid findings on issues 1 and 2, what remains to be considered is, whether the petition would be maintainable in the light of the statutory remedy available for the petitioner to approach the Appellate Tribunal under sub-section (5) of Section 37A of the Act. The petitioner was already before this Court in Writ Petition No.9182 of 2022. This Court declined to entertain the petition and directed the petitioner to approach the Appellate Tribunal under sub-section (5) of Section 37A. It is a statutory remedy of filing an appeal against the order of the Competent Authority who confirms the seizure order passed by the Authorised Officer. Despite the statutory remedy of appeal being available, it is not the case that no writ petition would be maintainable. But, the writ petition would not become entertainable, as it is the discretionary remedy that this Court would exercise to entertain a petition or otherwise even if it is maintainable, in the light of the aforesaid reasons and the statutory mandate of filing an appeal, the petition would not merit any consideration, as any further observation by this Court qua merit of the matter would seriously prejudice the case of the petitioner before the Appellate Tribunal. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>35.<span style=\"white-space:pre\">	</span>The only reason that is projected by the petitioners to knock at the doors of this Court despite the remedy of filing an appeal before the Appellate Tribunal being appealable under sub- section (5) of Section 37A of the Act is that the order of the Competent Authority affirming seizure by the Authorised Officer does not bear application of mind. It is trite law that application of mind is discernible from any order, if the order contains reasons for passing one, it would have been an altogether different circumstance if there were no reasons recorded in writing by the Competent Authority for this Court to hold that the order suffered from non-application of mind. The order is neither cryptic nor perfunctory.   It is in great detail. It runs into more than 250 pages. It is not the number of pages that matters, but the content in those pages which clearly indicate application of mind. I decline to accept the submission that the order suffers from non-application of mind on perusal of the entire content in the order.   Every submission of the petitioner is noted, considered threadbare and answered by the Competent Authority. The Competent Authority has not left any wood on the tree. Therefore, the order does not suffer from non- application of mind, as is sought to be projected and contended by the petitioner. Therefore, the only circumstance which the petitioner projects apart from challenging the constitutional validity for entertainment of the subject writ petition tumbles down, as the order of the Competent Authority does bear the stamp of application of mind through the order. Therefore, it is for the petitioner to avail of the remedy of filing an appeal before the Appellate Tribunal.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>SUMMARY:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space:pre\">	</span>The challenge to the constitutional validity of Section 37A of the Act by the petitioner is held to be maintainable and entertainable, on the fulcrum of the allegation that it is violative of Article 14 of the Constitution of India, as Article 14 is person centric, whereas fundamental rights under Articles 15, 16, 19 and 25 are citizen centric. Wherefore, a non-citizen can challenge certain laws of the nation on the ground that it is violative of Article 14 of the Constitution of India and the challenge would be restrictable only to the tenets of Article 14 of the Constitution of India.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (ii)<span style=\"white-space:pre\">	</span>The challenge to the constitutional validity of Section 37A of the Act is rejected, as Section 37A does not suffer from any manifest arbitrariness on any ground whatsoever. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space:pre\">	</span>The petitioner is at liberty to avail of the statutory remedy of filing an appeal before the Tribunal under sub-section (5) of Section 37A of the FEMA.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>The Writ Petition is rejected. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>The rejection of the petition would not come in the way of the petitioner availing of the remedy of appeal under Section 37A(5) of the Act, in accordance with law.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"></span></p><p class=\"MsoNormal\"><span style=\"font-size:26.0pt;line-height:115%\"><b>A foreign company\r\ncan maintain a petition challenging the constitutional validity of Indian law on\r\nthe ground of violation of Articles 14 and 21. Karnataka High Court. <o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e9bca771babb1ca05dea558581f3e942.jpeg', '17be0a3794613b31aac46ab25b1408b6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-01', 1, '', '', '2023-05-31 15:35:12', '2023-06-01 10:20:53');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3019, 'QLLLgiNiMY5RdR3XbB9M9o6Az', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transfer of Property Act. Upon valid transfer of property, attornment of tenancy takes place and the tenant cannot question such derivative title. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>G. Jagadish Kumar Vs K.G. Murali.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 650 of 2011 decided on 23 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ashok S. Kinagi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Brief facts leading rise to filing of this appeal are as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> The plaintiff filed the suit for ejectment and for arrears of rent amounting to Rs.33,715/-. It is the case of the plaintiff that defendant’s father Sri.K.N.Gopal entered into a lease agreement on 05.07.1992, with the plaintiff, who is the owner of the schedule premises, on the condition that the lease is a monthly lease and the rent at the beginning of the lease would be Rs.500/- per month and if the lease continued beyond one year, there would be an enhancement of rent at the rate of 10% over the prevailing rent, every two years. Thus the present rent is Rs.800/- per month. The said Sri.Gopal died in the month of June, 1995. The defendant being his son, continued in possession of the premises. Ever since then, the defendant has failed to pay the rent and he is in arrears of rent from June, 1995. Inspite of repeated requests and demands, the defendant has not paid the rent. Hence, the suit is for arrears of rent and also for recovery of possession. The plaintiff got issued a legal notice to the defendant terminating the tenancy on 13.05.2002. Though the defendant received the notice, gave an untenable reply and failed to vacate the premises. Hence, cause of action arose for the plaintiff to file a suit for ejectment and also for recovery of arrears of rent.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The defendant filed written statement denying that defendant’s father Sri.K.N.Gopal entered into lease agreement with the plaintiff and also denying that the plaintiff is the owner of the suit premises as on 05.07.1992. He denied that the said premises was let out to defendant’s father Sri.K.N.Gopal by the plaintiff and also denied the monthly rent at Rs.800/- with effect from 05.06.2002. It is admitted that after the demise of Sri.Gopal, the defendant being his son, continued in possession of the premises. But it is denied that the defendant has failed to pay the rent and is in arrears of rent from June, 1995. It is contended that the suit is barred by limitation. It is contended that the averment made in para-5 of the plaint to the effect that even after the termination notice, the defendant has not paid any rent, is not applicable to the defendant and as such plaintiff has no right to seek possession of the schedule shop. The plaintiff is not the owner of suit schedule property and defendant is not the tenant under the plaintiff, as such, there is no relationship between the plaintiff and the defendant as the landlord/lessor and the tenant/lessee.   Hence, it is contended that defendant is running a hotel from his childhood and after the demise of his father, he alone continued in the premises and invested heavy amount and installed several machinery for smooth running of the hotel. Hence, on these grounds, prays to dismiss the suit.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The trial Court on the basis of pleadings of the parties, framed the following issues:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 1.<span style=\"white-space:pre\">	</span>Whether the plaintiff proves that the defendant’s father was a tenant under him on a monthly rent of Rs.500/- with respect to the suit schedule property? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space:pre\">	</span>Whether the plaintiff proves that the defendant is a chronic defaulter in payment of rent right from 1995? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>Whether the plaintiff proves that the tenancy is properly terminated as contemplated under law? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>Whether the plaintiff proves that he is entitles for possession of the suit schedule property? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>Whether the plaintiff is entitled for the reliefs as claimed in the suit? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space:pre\">	</span>Whether the defendant proves that the plaintiff is not the owner of the suit schedule property and he is not a tenant under him as claimed in para 7 of the written statement? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>What order or decree?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This<span style=\"white-space:pre\">	</span>court has<span style=\"white-space:pre\">	</span>admitted the appeal on the following substantial question of law :</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Whether the Courts below are legally correct in holding that in the absence of proof of attornment of tenancy, there is no relationship of landlord and tenant between plaintiff and defendant, when there can be attornment of tenancy by operation of law?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>It is the case of the plaintiff that defendant’s father entered into a lease agreement with the plaintiff on a condition that lease is a monthly lease and the rent of suit schedule property would be Rs.500/- p.m. and if the lease period is extended beyond one year, there would be enhancement of rent at 10% on the prevailing rent every two years. Present rent is Rs.800/- p.m. The defendant’s father died in the month of June, 1995. After the demise of his father, the defendant being his son continued to be in possession of the suit property and running a hotel in the suit schedule property. The plaintiff requested the defendant to pay the rent, but the defendant did not pay the rent to the plaintiff. The plaintiff got issued a legal notice terminating the tenancy. The defendant replied to the said legal notice, wherein the defendant denied the title of the plaintiff and admitted the title of plaintiff’s vendor and refused to vacate the suit property. Defendant contended that there exist no relationship as a lessor and lessee between the plaintiff and defendant. It is denied that defendant’s father executed a lease agreement in favour of the plaintiff. It is denied that plaintiff is the owner of the suit property. It is contended that the defendant is in possession of the suit property as tenant under the plaintiff.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>Admittedly, Sriram Shetty was the owner of the suit property and K.N.Gopal, i.e., father of defendant, was the tenant under Sriram Shetty in respect of the suit property. He sold the suit property in favour of the plaintiff under registered sale deed as per Ex.P7. The suit property was transferred in the name of the plaintiff. As per Section 8 of the Transfer of Property Act (‘the TP Act’ for short), there is a presumption that when a property is transferred, all things attached to the earth, such as, trees and shrubs are also transferred along with the land. The plaintiff becomes the owner by operation of law on the strength of the registered sale deed.   Such transfer will not affect the tenancy as tenant will continue till the eviction of tenant by the procedure of law. Defendant does not acquire any interest in the property and as such tenant cannot challenge the right, title of his landlord. The tenant remains as a tenant under the transferee/landlord. The plaintiff issued a legal notice terminating the tenancy, but the defendant replied to the said notice denying the title of the plaintiff over the suit property. Though the defendant had the knowledge about the registered sale deed executed by Sriram Shetty in favour of the plaintiff, but has denied him to be his landlord and has not paid the rent to him. The defendant is enjoying the suit property without paying the rent. The defendant is a chronic defaulter. The defendant has neither paid the rent to the plaintiff nor to the legal representatives of deceased Sriram Shetty. It is the case of the defendant that legal representatives of deceased Sriram Shetty are neither claiming title over the suit property nor demanded the rent. The defendant cannot challenge the status of the plaintiff as owner of the suit property. As such, the defendant became a tenant under the plaintiff by operation of law under Section 109 of the TP Act. The attornment by lessee/defendant is not necessary for transfer of property leased out to his father under Section 109 of the TP Act. The Hon’ble Apex Court in the case of GOPI @ GOVARDHANNATH, DEAD BY LRS. & ORS. VS. BALLABH VYAS reported in AIR 2022 SC 5248, held that attornment by lessee is not necessary for transfer of property leased out to him under Section 109 of the TP Act. At paragraph-27, Hon’ble Apex Court has held as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“27. In the light of the finding on the issue whether the respondents in R.C.No.262 of 2008 were malafidely denying the title of the petitioner therein over the petition schedule property, Section 109 of the Transfer of Property Act would assume relevance in regard to the right of the petitioner in R.C.No.262 of 2008 to seek eviction of the respondents therein, from the petition schedule property. Admittedly, the predecessor-in-interest of the appellants viz., late Shri Balraj, was the tenant in respect of the petition schedule property under its original owner Smt. Phool Kumari. A bare perusal of Section 109 of the Transfer of Property Act would reveal that if a landlord transfers the property leased out or any part of it, the transferee, in the absence of any contract to the contrary, shall possess all the rights of the landlord. Hence, the impact of Ext.P3, in the absence of any contract to the contrary, is that the respondent herein has stepped into the shoes of Smt. Phool Kumari. In terms of Section 109 of the Transfer of Property Act it is clear that attornment by the lessee is not necessary for the transfer of the property leased out to him. Thus, the inevitable consequence of transfer of a leased-out property by the landlord in accordance with law to a third party, in the absence of a contract to the contrary, is that the third party concerned would not only become its owner having title but also would step into the shoes of the vendor as the landlord in relation to the lease holder at the relevant point of time. In such circumstances, the findings of the courts below that there exists jural relationship of landlord and tenant between the respondent and the appellants can only be held as the correct and lawful conclusion in the light of the evidence on record based on the legal position.”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>Section 109 of the TP Act contemplates that when right, title and interest in immovable property stand transferred by operation of law, the spirit behind Section 109 would apply and successor in interest would be entitled to the rights of the predecessor. The defendant is challenging the derivative of the title of the plaintiff and not the title of the original landlord, i.e., Sriram Shetty. The same holds no good as the subsequent owner will derive the title of the original owner and will step into the shoes of the owner.   In the instant case, the right and title of Sriram Shetty is not under challenge and hence, the challenge as regards the derivative title, is of no consequence in the given background. Section 109 of the TP Act would assume relevance ot the right of the plaintiff to seek eviction of the defendant from the suit schedule property. Even if the plaintiff failed to prove the execution of Ex.P1, Section 109 of the TP Act contemplate that in the absence of any contract to the contrary, that is plaintiff has stepped into the shoes of Sriram Shetty in relation to the lease holder at the relevant point of time. In terms of Section 109 of the TP Act, it is clear that attornment by the defendant’s father or by defendant is not necessary for the transfer of property leased out to defendant’s father.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>16.<span style=\"white-space:pre\">	</span>The trial Court has dismissed the suit only on the ground that the plaintiff, except producing Ex.P1, has not produced any document to establish the relationship as landlord and tenant. The trial Court has failed to consider that the defendant has admitted the ownership of plaintiff’s vendor and also defendant’s father was a tenant and failed to consider that attornment by defendant is not necessary for transfer of property leased out to the defendant’s father under Section 109 of the TP Act. The Appellate Court has, without properly re-appreciating the evidence, has simply confirmed the judgment and decree passed by the trial Court. Both the courts below have committed an error in passing the impugned judgments and decrees. As observed above, when the landlord/original owner – Sriram Shetty under whom the defendant’s father was a tenant, transferred the property in favour of the plaintiff, the plaintiff became the owner on the strength of the registered sale deed. As such, the defendant became the tenant of the schedule property and no attornment is required to create such landlord and tenant relationship.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>The defendant cannot deny the title of the plaintiff. Section 116 of the Indian Evidence Act provides that when a tenant of immovable property admits he is in possession of property as a tenant and during the continuance of the tenancy he denies the relationship of the landlord. Such tenant has no right to remain in possession of the suit property. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space: pre;\">	</span>The Hon’ble Apex Court in the case of PALANI AMMAL VS. VISHWANATH CHETTIAR reported in 1998 (2) LW PAGE 7, held applying Section 111(g) that the tenant must accept the owner of the building as a landlord by renouncing his character as a tenant of the landlord by setting up title in the third person or in himself otherwise, he ceases to be a tenant. The Hon’ble Apex Court has clearly held that the umbrella given to the tenant under the TP Act or under any other law can no longer come to his aid and by denying title, the tenant had walked out of the protective umbrella of the protection act. That is a case where in the suit filed for ejectment, the title was denied in the written statement as well as in the additional written statement. Ultimately, holding that the denial having made in the course of pleadings, the question of further intimating the tenant about such a denial by a fresh notice and giving further notice does not arise and consequently the tenant goes out of protective umbrella and not entitled to the protection of Section 106. The said judgment is aptly applicable to the present case in hand. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space: pre;\">	</span>The said aspect has been overlooked by the courts below and proceeded to pass the impugned judgments and decrees. The judgments and decrees passed by the courts below are arbitrary and erroneous. Hence, the impugned judgments are liable to be set aside. In view of the above discussion, the substantial question of law is answered in negative.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The appeal is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6bfe2d57c324f192ad7cee34f737bc55.JPG', 'b752a2b8901835abccb7ecb2ccdf9bd4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-01', 1, '', '', '2023-05-31 16:23:47', '2023-06-01 03:21:49'),
(3021, 'aYo7MjDUUaDRFPz178BJ58cie', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Pendency of civil case is not a ground to dismiss criminal proceeding. Criminal case regarding forgery of Will cannot be dismissed on the ground that the finding in criminal case will have a binding effect in pending civil suit. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jayavant Kalasappa Kale Vs Suresh Kalasappa Kale and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 100333 of 2020 decided on 21 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice J.M. Khazi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner who is complainant before the Trial Court has filed this petition under Section 482 Cr.P.C. with a prayer to set aside order dated 18.01.2020 passed by the Trial Court dismissing the complaint in C.C.No.23/2016, on the ground that there is civil suit and its finding would be binding on the criminal Court and that there are no grounds to continue with the matter. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Brief facts leading to the filing of this petition are that land bearing CTS No.5325 of Jamakhandi is the property of partnership firm, Hotel Prashant, constituted between petitioner and his sister-Sushilabai Shingi. Through the registered partnership dated 19.04.1985 the said property was brought into the stock of the firm. By mortgaging the said property loans were raised from KSFC. After toiling for several years petitioner was able to repay the loans and got reconveyance/release dead dated 07.08.2002 in favour of the partnership firm. Sushilabai Shingi was unmarried. She died on 13.08.2011. After her death partnership was reconstituted and business is going on. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.1.<span style=\"white-space: pre;\">	</span>When things stood thus, one Rekha Pranjape claimed that Sushilabai Shingi has executed will 24.03.2008 and 20.07.2009 bequeathing certain properties including CST No.5325 and that the wills were allegedly registered on 07.02.2011 after her death. Respondent No.1 also claimed that under will dated 16.04.2008 Shushilabai Shingi has bequeathed said properties to him and allegedly got registered it on 24.11.2011 after her death. They also moved the Tahasildar Jamakhnadi. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.2.<span style=\"white-space: pre;\">	</span>However petitioner got the wills examined through hand writing experts and found that they do not bear her signature and it is fraudulently created to knock out the valuable properties. Therefore, petitioner filed PC No.13/2012 and 14/2012. They were referred to concerned police for investigation under Section 156(3) of Cr.P.C. Despite coming to know about the concoction the investigation officer filed ‘B’ report. Petitioner filed protest petition and based on the material placed on record, the Trial Court has taken cognizance and registered the case in C.C.No.23/2016. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.3.<span style=\"white-space: pre;\">	</span>Some of the respondents approached this Hon’ble Court tin Crl.P.No.101033 and 101034/2016 to quash the criminal proceedings. As per the directions given by this Court in the above petitions the Trial Court recorded the sworn statement of petitioner and took cognizance. Crl.P.No.101118/2017 filed by respondents against the said order contending that civil suit is pending was dismissed. Proceedings before the trial Court continued. However, on 18.01.2020 the Trial Court has abruptly dismissed the complaint on the ground that civil suit is pending in O.S. No.05/2014. It is a suit filed by respondents seeking half share. In the said suit Rekah Pranjape claiming to be a beneficiary of will has filed counter claim.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>From the material placed on record it is evident that petitioner is no other than the brother of late Sushilabai Shingi petitioner, respondent No.1-Suresh, Gopal, Pundalik and late Sushilabai Shingi are siblings, being the children of Kalasappa Shingi @ Kale. Late Sushilabai Shingi was unmarried and she owned certain properties. It is also not in dispute that petitioner and Late Sushilabai Shingi entered into a partnership firm to run hotel business. They have secured loan from KSFC and other sources and utilized the same for running the hotel business. Petitioner claims that by virtue of the partnership the properties belonging to late Sushilabai Shingi were brought into the stock of the firm under Clause 9 in accordance with Section 14 of the Indian Partnership Act, 1932 and after her death, the partnership has been reconstituted.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>At the outset it is relevant to note that a particular act may attract civil as well as criminal liability giving rise to a cause of action to proceed under both civil and criminal law. Having regard to the fact that in the civil suit respondent No.1 is not claiming any right based on alleged Will dated 16.04.2008 and he is only claiming half share, based on the fact that he and petitioner herein being full brothers are entitled for half share each, there is no occasion for the civil Court to give any findings on that aspect. Even where respondent No.1 were to claim right based on such Will and already Rekha Paranjape has claimed such right based on Will, the Civil Court may only give a finding whether the Wills are genuine or not. In the event of giving a finding that the Wills are not executed by late Sushilabai Shingi, it has no jurisdiction to impose punishment for such concoction. The criminal court is required to proceed against respondent No.1 independent of the civil rights urged in the original suit. Therefore the criminal court has erred in passing the impugned order, abruptly dismissing the complaint. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>In Syed case, the Hon’ble Supreme Court held that ordinarily a criminal proceeding will have primacy over civil proceedings. If primacy is to be given to a criminal proceeding, indisputably the civil suit must be determined on its own merits, keeping in view the evidence brought before it and not in terms of the evidence brought in the criminal proceedings. In K.Munirathnam, the co-ordinate bench of this Court held that pendency of civil proceeding is not a ground for dismissal of criminal proceeding. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>In Manharibhai, the Hon’ble Supreme Court held that when the complaint is dismissed u/sec.203 Cr.P.C., whether at the stage of Sec.200 itself or after following process contemplated U/sec.202, in the revision petition, the accused gets a right of hearing as is expressly provided U/sec.401 (2) Cr.P.C., notwithstanding that order impugned in revision was passed without his participation. Relying upon this decision, the learned counsel for respondents submitted that against the impugned order petitioner was required to file revision and not a petition U/sec.482 Cr.P.C. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>In Manharibhai, the emphasis is on the fact that even where the complaint is dismissed without the appearance of accused, then also in the revision before the Sessions Court or the High Court, the accused get a right of audience. Infact, in Anjula Divedi referred to supra relied upon by respondents, the Hon’ble Supreme Court held that in a petition challenging trial Court taking cognizance of the offence and issuing process, though the remedy is available U/sec.397 Cr.P.C., a petition U/sec.482 Cr.P.C. is maintainable and in such an event the jurisdiction U/sec.482 Cr.P.C. will be exercised by the High Court with utmost care and caution, sparingly and under extraordinary circumstances. At para 31, the Hon’ble Supreme Court observed that the power of the revisional Court U/sec.397 Cr.P.C. and 482 Cr.P.C. may overlap to certain extent because both are aimed at securing the ends of justice and both have an element of discretion. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>In the present case, after recording sworn statement, the trial Court has taken cognizance and issued summons. Infact, respondents who are accused have appeared and participated in the proceedings. When the stage was for evidence before charge, abruptly the trial Court chosen to dismiss the complaint on the ground that civil suit is pending and its finding would be binding on it. Such being the case, this Court is of the considered opinion that petition U/sec.482 Cr.P.C. is maintainable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>In the result, the impugned order is liable to be set aside with a direction to the trial Court to proceed with the matter from the stage at which the complaint came to be dismissed and accordingly, I proceed to pass the following: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2a8f68d9521d2fb8dc7e248aec83e7e2.jpeg', '4d6626269b24750a34d20777cabebcbd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-02', 1, '', '', '2023-06-01 13:28:27', '2023-06-02 10:30:04');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3022, 'r4m6A72s3g57m6WRBTU4VViEa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Revenue entries coupled with possession can be relied on in support of the plea of earlier oral/unregistered family arrangement. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vijaya Kumar Mahantappa Walasang and others Vs Gurusiddappa and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>RSA 1253 of 2008 decided on 17 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Anant Ramanath Hegde.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>The suits referred to above are filed by the sons of Mahantappa. In O.S. no. 44/1997 the plaintiffs claimed that the 1st defendant (Parwatevva) did not acquire title over 2/3rd share in the suit property bearing Sy. No.17 on the premise, that the plaintiffs acquired 2/3rd right over the property by birth in the family as the said property was the ancestral property in the hands of their father Mahantappa. 10.<span style=\"white-space: pre;\">	</span>In O.S.No.16/2006, filed in respect of Sy. No.18 referred to above, absolute ownership is claimed on the premise that the defendant no.1 (Parwatevva) did not acquire any right over the property based on entries in the revenue records and sought consequential relief of injunction. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>The grievance of the plaintiffs, in both the suits is that name of Parwatevva, their father’s sister is entered in the property records without any valid transfer of title and possession in respect of properties bearing Sy.Nos.17 and 18 referred to above. The above-said contention is raised by the plaintiffs on the premise that in the family partition of 1951 (registered in the year 1955) the Sy. No.17, along with other properties is allotted to the plaintiffs’ father Mahantappa and Sy. No.18, along with some other properties is allotted to the plaintiffs’ uncle Balachandra. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>Parwatevva’s name is recorded in the property records of Sy. No.17 in the year 1974 vide ME.No.144 and in respect of Sy. No.18 in the year 1976 vide ME.No.152. These entries which are effected during the lifetime of Mahantappa and Balachandra are disputed many years later by the children of Mahantappa. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space: pre;\">	</span>Parwatevva and her husband, who are named as defendants, in the aforementioned suits contested the claim. It is urged that the aforementioned properties are transferred to Parwatevva in terms of family settlement which took place much earlier to the certification of above said mutations.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 14.<span style=\"white-space: pre;\">	</span>The suit in O.S.No.44/1997 was decreed. The Trial Court held Parwatevva did not acquire any title over the property bearing Sy. No.17. The appeal filed by Parwatevva and her husband in R.A.No.21/2003 is allowed. The First Appellate Court held that Parwatevva is the owner of the property and dismissed the suit. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>The suit filed by the plaintiffs in O.S.No.16/2006 in respect of property bearing Sy. No.18 was dismissed. The plaintiffs challenged the judgment and decree in R.A.No.89/2008. Said appeal was allowed. Consequently, O.S.No.16/2006 was decreed in part and the First Appellate Court molded the relief and granted partition for ½ share in the suit property to the plaintiffs and awarded ½ share to defendant No.1 - Parwatevva.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>The defendants in O.S.No.16/2006 are challenging the First Appellate Court\'s judgment and decree in R.A.No.89/2008. This Court has admitted this appeal by order dated 22nd March 2016, to consider the following substantial question of law: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“Whether the judgment arrived at by the first appellate Court is right in view of its finding that there is no need to consider the oral evidence of the parties in detail?” </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>The plaintiffs in O.S.No.44/1997 who are the respondents No.1 and 2 in R.A.No.21/2003 have filed RSA.No.1253/2008. The said appeal is admitted vide order dated February 6, 2014, to consider the following substantial question of law: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“i) Whether the first appellate Court has committed a serious error in reversing the judgment and decree of the trial Court by overlooking the principles of law to the effect that in a joint Hindu family when the succession opens prior to 1956, the daughter of the deceased would not be entitled to any share in the ancestral and coparcenary property? </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>ii) Whether the first appellate Court has committed a serious error in holding that the R2 has been given suit schedule property as per the alleged oral family arrangement more particularly on Ex.D3 i.e., the varadi to entry in the revenue records, in the light of her father died in the year 1949, prior to Hindu Succession Act?” </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>Considering the submissions made by the learned counsel for both the parties and having regard to the materials on record, this Court is of the view that the substantial question of law No. (i) framed in RSA.No.1253/2008 does not arise for consideration as Parvatevva is not claiming a share in the properties under Section 6 of the Hindu Succession Act, 1956. Accordingly same is deleted. Both the learned counsel also agreed to delete the said question.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>In RSA.No.100558/2015, this Court is of the view that in addition to the aforementioned substantial question of law, framed vide order dated 22nd March 2016 the following substantial question of law is required to be considered.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">“Whether the family arrangement asserted by the Parwatevva is established?”</i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26.<span style=\"white-space:pre\">	</span>The moot point in the case is the legality of the family arrangement pleaded by Parwatevva. The plaintiffs contend that the above-said mutations do not create any right in favour of Parwatevva for want of a registered document conveying title in her favour. Parwatevva contends that the oral family arrangement does not necessarily contemplate registration in all situations. Relying on the judgment of the Apex Court in the  case  of KALE AND OTHER referred (supra)  it is urged that the oral family arrangement does not require registration. The attention was drawn to the relevant portion of the said judgment which reads as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>“10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>“(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(2)<span style=\"white-space:pre\">	</span>The said settlement must be voluntary and should not be induced by fraud, coercion, or undue influence;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(3)<span style=\"white-space:pre\">	</span>The family arrangement may be even oral in which case no registration is necessary;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(4)<span style=\"white-space:pre\">	</span>It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(5)<span style=\"white-space:pre\">	</span>The members who may be parties to the family arrangement must have some antecedent title, claim, or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(6)<span style=\"white-space:pre\">	</span>Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.” <br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>27.<span style=\"white-space:pre\">	</span>In terms of the ratio laid down in the aforementioned case which is subsequently followed by the Apex Court in the case of KORUKONDA CHALAPATHI RAO AND ANOTHER (Supra), there is no difficulty in holding that certain kinds of family arrangements need not be registered. Keeping in mind this proposition of law the Court has to consider whether the family arrangement pleaded by first defendant/Parwatevva is valid without there being any registered document.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>28.<span style=\"white-space:pre\">	</span>There is no dispute that two mutations namely ME.No.144 (Ex.P.11) and ME.No.152 (Ex.P.12) referred to above are certified in 1974 and 1976 respectively. These mutations are not questioned either by Mahantappa or Balachandra. Plaintiffs contend that the mutations are certified without notice to Mahantappa and Balachandra. The recitals in the mutations referred to above also reveal that the mutations are certified pursuant to the applications submitted by Mahantappa and Balachandra. The certified copies marked Exs.P.11 and 12 would reveal that the notice was sent before certification and the notice was also served and published and entries are certified as there was no objection to the said mutations. The court has to draw an inference that the mutations are certified after notice to Mahantappa and Balachandra. The reasons are not far to seek. Under Karnataka Land Revenue Act, before the change of name in the property records there has to be notice to interested persons. The law presumes that the official acts are done as mandated in law. Of course, the presumption is rebuttable. However same is not rebutted. On the other hand, there are enough circumstances that suggest the mutations are certified with the knowledge of Mahantappa and Balachandra. Once it is shown that the mutations are certified with the knowledge of the owners, then the recital in the mutations assume importance. The recitals reveal that Parwatevva was in possession of the properties 10 to 12 years before the certification of the mutations and acknowledging her previous possession the Mahantappa and Balachandra have applied to enter Parwatevva’s name and delete their names from the respective records. From the plain reading of the contents of the mutations referred to above indicates that Parwatevva had the properties 10 to 12 years before the mutations. If there are any other documents to support the contents of the said mutations then the Court can conclude that Parwatevva the sister of Mahantappa and Balachandra was put in possession of the properties referred to in the aforementioned mutations. Mr.Desai has stressed on Ex.D36 and Ex.D.35 the declarations under Form No.11 under the Karnataka Land Reforms Act. These declarations in Ex.D.6 and Ex.D.35 are undisputed. More than anything else these are the documents executed by Mahantappa and Balachandra respectively. In these documents, Mahantappa and Balachandra have furnished the declaration relating to their respective holdings of agricultural lands. Admittedly, property bearing Sy.Nos.17 is not shown in the declaration of Mahantappa and Sy. No. 18 is not forthcoming in the declaration of Balachandra. Thus, it leads to the logical conclusion that Mahantappa and Balachandra did not treat the property bearing Sy.Nos.17 and 18 as their properties when the said declarations are filed in December 1974. This leads to the conclusion that the said properties were not in their possession. Thus, these admitted documents support the plea of possession of the property bearing Sy.Nos.17 and 18 by Parwatevva. In these circumstances, the Court must consider how Parwatevva came in possession of the properties. It is not the case of Mahantappa and his children that Parwatevva is a trespasser. Though the plaintiffs claim to be in possession the said claim of the plaintiffs is not established. The long-standing entries in the property records over 20 years which are not questioned by the owners (Mahantappa and Balachandra) lead to the presumption that Parwatevva is in possession of the properties. It is apparent from the mutations that the applications to enter the name of Parwatevva in the property records are submitted by Mahantappa and Balachandra. From these documents, the Court can conclude that Parwatevva came in possession of the properties 10 to 12 years before the certification of the mutation entries.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>29.<span style=\"white-space:pre\">	</span>The fact that Parwatevva was in possession of the properties 10 to 12 years before the mutations would lead to the logical inference that there was some oral family arrangement made to put Parwatevva in possession of the properties. This is so because plaintiffs or Mahantappa or Balachandra have never stated that Parwatevva is a trespasser.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>33.<span style=\"white-space:pre\">	</span>Though Parwatevva has not entered the witness stand to testify about what transpired when she was 14 or 15 years old at the time of her father\'s death, or how exactly the oral family arrangement took place, the records would clearly show that Parwatevva was given the properties bearing Sy.Nos.17 and 18. The fact that she possessed the properties ten years before the mutation entries were certified would clearly show that the brothers orally agreed that some family arrangement should be made to confer right over certain properties for the benefit of their sister. Taking into account the parties\' close relationship, huge extent of land owned by the family and as well as the fact that the father died when the daughter was 14 years old, this Court is inclined to conclude that the brothers assumed certain obligations towards Parwatevva, who lost her father when she was 14 years old and in the discharge of the same they voluntarily made the family arrangement. Taking all the circumstances referred to above, this Court is of the view that the ratio laid down in the case of Kale and others (supra) squarely applies to the facts of the case at hand. And thus, the oral   family arrangement reflected in the mutations referred to above, which speak about the past family arrangement, is valid and same does not require registration. Thus, Parwatevva acquired right over Sy. No.17 and 18 referred to above, in the family arrangement. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>34.<span style=\"white-space:pre\">	</span>Once the Court holds that the family arrangement is valid and that Parwatevva acquired ownership, the contention of the plaintiffs that the partition suit is maintainable even after a lapse of a long time after certification of mutations cannot be accepted. Hence, the ratio laid down in the case of Indira Vs. Arumugam referred (supra) has no application to the case on hand.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>39.<span style=\"white-space:pre\">	</span>Though Sri. Arun L.Neelopant submitted that there is inconsistency in the case of Parwatevva wherein she has taken the stand that family arrangement took place in the year 1951 and the mutation would reveal that the properties are transferred somewhere in the 1960s. Though the stand relating to the date or year of family arrangement is inconsistent, those inconsistencies are not fatal, given the fact that Parwatevva\'s possession is established 10 to 12 years before the certification of the mutations referred to above. Under these circumstances, this Court is of the view that in RA no.89/2008 the First Appellate Court erred in overturning the Trial Court\'s finding on the premise that the family arrangement is not established for want of registration.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 40.<span style=\"white-space:pre\">	</span>The First appellate court in RA no.89/2008 erred in not noticing and analyzing the vital aspects discussed above. The first appellate court in para no. 24 of the impugned judgment in RA no.89/2008 went to the extent of observing that no need to consider the oral evidence of the parties in detail. Such a finding is impermissible in an appeal under Section 96 of the Code.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>42.<span style=\"white-space:pre\">	</span>For the reasons stated above, this Court is of the view that the substantial questions of law relating to the validity of family arrangements must be resolved in favour of defendant no.1 and against the plaintiffs.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(i)<span style=\"white-space:pre\">	</span>The appeal in RSA 100558/2015 is allowed. The judgment and decree dated 20.04.205 in R.A. no.89/2008 on the file of IX Additional District Judge Belagavi are set aside. The judgment and decree passed in O.S. no. 16/06 are restored.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b> (ii)<span style=\"white-space:pre\">	</span>The appeal in RSA 1253/2008 is dismissed</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9e6a0e8cd848a0b403a62738ad55a6fe.JPG', '2678c417a664a33a3b5cf601167fe639.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-02', 1, '', '', '2023-06-01 13:57:55', '2023-06-02 07:08:24'),
(3023, 'SQ6ctMwB7r3JcaU6Bh9cOfo7J', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka SC/ST PTCL Act. Delay of 20 years in applying for cancellation of the sale. Such application cannot be entertained by the authorities. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>C V Reddy Thr LRS and others Vs The Deputy Commissioner and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 40737 of 2012 decided on 13 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Pradeep Singh Yerur.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>This petition is preferred by the purchasers, who are questioning the concurrent orders passed by respondent Nos.1 and 2 wherein the order of the Assistant Commissioner has been confirmed by the order of Deputy Commissioner dated 13.08.2012 where the sale deeds of the petitioner and his vendors were declared as null and void.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 3.<span style=\"white-space: pre;\">	</span>Brief facts of the case is as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> Land bearing Sy. No.113/1, new Sy.174 consisting of 4 acres situated in Uttari Village, Uttarahalli hobli, Bengaluru South Taluk was granted in favour of Sri. Chikka Hanumaiah under the Land Grant Rules vide Order bearing No.46/56-57 GD 41/56-57, dated 09.10.1956. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.1<span style=\"white-space: pre;\">	</span>After the period of 30 years the said Sri. Chikka Hanumaiah the original grantee executed a registered sale deed in respect of schedule property on 02.01.1987 infavour one Sri. K. Channappa. Thereafter, on 26.08.1988, the said Sri.K. Channappa executed the registered sale deed infavour of one   Sri.   Thimmegowda. On 18.09.1992  the  said Sri. Thimmegowda executed a registered sale deed infavour of one Smt. D.N.Gowramma and  thereafter  on  01.09.1994 Smt. D.N.Gowramma soldthe same schedule property infavour of Smt. Shakuntala Damodaran. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.2<span style=\"white-space: pre;\">	</span>Thereafter, on 17.01.2006 the petitioner sought permission from the office of respondent No.2-Assistant Commission, Bengaluru South Taluk under Section 80 of Karnataka Land Reforms Act and on conducting appropriate enquiry. Permission was granted and the petitioner purchased the schedule property from Smt. Shakuntala Damodaran vide a registered sale deed dated 13.03.2006 for a valuable consideration of Rs.20,00,000/-. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.3<span style=\"white-space: pre;\">	</span>It is the contention of the learned counsel for the petitioners that since the registered absolute sale deed on 13.03.2006, the legal representatives of the purchaser are in possession and peaceful enjoyment of the schedule property as absolute owners. The schedule property is also now presently within the jurisdictional limitations of BBMP. Pursuant to this initial sale made by the Sri. Chikka Hanumaiah the grantee infavour of Sri. K. Channappa the possession came to be vested with subsequent purchasers and the father of petitioners who purchased the property from Smt. Shakuntala Damodaran on 13.03.2006. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.4<span style=\"white-space: pre;\">	</span>Therefore, it is the contention of the learned counsel for petitioners that pursuant to 52 years from the grant under the prevailing Land Grant Rules, the power of attorney of respondent Nos.3 to 5 filed an application in No.K.SC./ST (S) 9/07-08 before respondent No.2-Assistant Commissioner for restoration of the land infavour of the original grantees. As the sale made by the original grantee are in contravention to the Prohibition of Transfer of Certain Lands Act, 1978 (for short ‘the Act’) and sought for the repossession of the land to the legal representatives of the original grantee. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.5<span style=\"white-space: pre;\">	</span>Pursuant to an enquiry conducted by respondent No.2-Assistant Commissioner after hearing the parties has passed an order on 09.01.2009 allowing the application filed by the power of attorney holder of respondent Nos.3 to 5 and held that the sale deeds dated 02.01.1987 to 13.03.2006 stated above are all void and directed the Thahasildar to handover the land to the legal representatives original grantee. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.6<span style=\"white-space: pre;\">	</span>Being aggrieved by the said order of respondent No.2-Assistant Commissioner the petitioners preferred an appeal before the Deputy Commissioner in appeal No.SC.ST(A)250/2008-2009 on various grounds urged therein.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>Having heard learned counsel for the parties, the point that requires to be adjudicated by this Court is whether the petitioners who are legal representatives of the purchaser Sri. C.V.Reddy who purchased the property on 13.03.2006 and whose three earlier vendors secured the right title interest over the property from one Sri. K.Channappa who was the first purchaser from the original grantee namely Sri. Chikka Hanumaiah on 02.01.1987 have obtained the right title and the possession of the property validly and whether the respondent Nos.1 and 2 have taken all these aspect into consideration while considering the application filed by respondent Nos.3 to 5. 11.<span style=\"white-space: pre;\">	</span>In order to advert to these issuance its relevant to extract the provisions of the Act reads as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>\"4. Prohibition of transfer of granted lands.-</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> (1)<span style=\"white-space: pre;\">	</span>Notwithstanding anything in any, law, agreement, contract or instrument, any transfer of granted land made either before or after the commencement of this Act, in contravention of the terms of the grant of such land or the law providing for such grant, or sub-section (2) shall be null and void and no right, title or interest in such land shall be conveyed or be deemed ever to have conveyed by such transfer. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(2)<span style=\"white-space: pre;\">	</span>No person shall, after the commencement of this Act, transfer or acquire by transfer any granted land without the previous permission of the Government.\" </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">12.<span style=\"white-space: pre;\">	</span>The arguments put forth by learned counsel for the petitioners is of substance worthy of consideration and requires to be considered for the reason that respondent Nos.3 to 5 have not approached the Court of well within time to lay their contention with regard to the alienation made by Sri.Chikka Hanumaiah on 02.01.1987 having sold the property to one Sri. K.Channappa. It is also to be noted that after 20 years of alienation made by the original grantee Sri. Chikka Hanumaiah an application is filed by the power of attorney holders of respondent Nos.3 to 5 before the Assistant Commissioner to nullify the sale deed for having controverted the provisions of Section 4 of the PTCL Act.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>The argument put forth by learned counsel for respondent Nos.3 to 5 appears to be attractive for the reason that no sale could be made under Section 4 of the Act. Pursuant to the commencement of the Act without previous permission of the Government and that the granted land cannot be sold without appropriate and proper permission from the concerned authority there is no quarrel or dispute with regard to the provisions of this Act that the previous permission has to be obtained from the Government before sale is taken place. Nevertheless, it becomes the duty of the original grantee or his legal representatives i.e., respondent Nos.3 to 5 to approach the Court well within time to challenge or seek for nullification of the sale deed well within reasonable time as and when they have knowledge of such sale. There is nothing that his put-forth or placed before this Court or before the Assistant Commissioner that they came to know about the sale much later fact remains that the application came to be filed before the Assistant Commissioner in 09.01.2007 i.e., after the petitioners purchased the property from Smt. Shakuntala Damodaran vide registered sale deed dated 13.03.2006 and the petitioners entered into the property by virtue of right title and interest are in possession of the said property. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">15.<span style=\"white-space: pre;\">	</span>Under the circumstances, in view of the judgments of the Hon’ble Apex Court in the case of Nekkanti Rama Lakshmi v. State of Karnataka reported in (2020)14 SCC 232 and Vivek M. Hinduja v. M.Ashwatha reported in (2020)14 SCC 22 Hon’bel Apex Court has made it very clear that with regard to properties falling under the Act when the same is challenged to nullify the sale deeds the petitioner should approach the Court within reasonable time and the said reasonable time cannot be unreasonably long so as to disbelieve the version of the person making such a claim. However, in the present case, it is seen that from the date of first sale in the year 1987 as on date of filing of the application on 09.01.2007, it is more than 20 years. Wherefore, this lapse of huge delay on behalf of respondent Nos.3 to 5 one of the main reason to be taken into consideration while deciding this matter. It is no doubt true that there is no limitation period prescribed under the Act for challenging the sale deeds under the PTCL Act, but however the precedents laid down by the Hon’ble Apex Court have made it clear that the application by respondent Nos.3 to 5 should be filed within reasonable time. Taking into consideration the amount of delay of more than 20 years in the present case, I do not find that it is a reasonable period of time for consideration of the matter.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">16.<span style=\"white-space: pre;\">	</span>I do not find an</font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">y cogent reason to interfere in this case on the ground of delay itself this matter requires to be rejected.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space: pre;\">	</span>This writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '00391eee53cf5e58ea593cb76b88b988.JPG', '84f0d018f29084d19aa343f147c05be1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-02', 1, '', '', '2023-06-01 15:23:19', '2023-06-02 03:22:20');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3024, '6DVQq3HmXyxzcBGzhcxyvtgZ8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Subsequent buyer of the property after issuance of the notification under Section 4 the 1894 Act has no locus to invoke Section 24(2) of the 2013 land acquisition Act. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Government of NCT of Delhi Vs Ravinder Kumar Jain and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3621 of 2023 decided on May 18 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Abhay S. Oka and Justice Rajesh Bindal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Challenge in the present appeal is to the order\r\npassed by the High Court of Delhi in W.P.(C) No.6912 of 2014\r\nvide which the writ petition filed by the respondent no.1\r\ninvoking Section 24(2) of the Right to Fair Compensation and\r\nTransparency in Land Acquisition, Rehabilitation and\r\nResettlement Act, 2013 (hereinafter referred to as “the 2013\r\nAct”) was allowed and it was held that the acquisition in\r\nquestion had lapsed for the reason that neither the possession\r\nof the land was taken nor the compensation therefor was paid.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The basic facts which are not in dispute are that the\r\nprocess of acquisition of land in question started with the\r\nissuance of notification of Section 4 of the 1894 Act on\r\n25.11.1980. Subsequently, notification under Section 6 was\r\nissued on 27.05.1985. The owner of the land at that stage <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">challenged the acquisition by filing W.P.(C) No.1229 of 1986.\r\nAward under Section 11 of the 1894 Act was announced by the\r\nLand Acquisition Collector on 05.06.1987. The writ petition was\r\ndismissed for non-prosecution on 09.12.2004. The High Court\r\nalso recorded that the issue raised in the petition is otherwise\r\nalso covered by various judgments.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. As regards the locus of a subsequent purchaser to\r\ninvoke Section 24(2) of the 2013 Act to claim that the\r\nacquisition had lapsed, the law is well settled. The three Judge\r\nBench of this Court in Shiv Kumar (supra) while deciding the\r\npoint in law has held as follows:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“18. Even otherwise, proviso to Section 24(2)\r\ndoes not recognise a purchaser after Section 4\r\nnotification inasmuch as it provides that where an\r\naward has been made, and the compensation in\r\nrespect of a majority of landholdings has not been\r\ndeposited in the account of the beneficiaries, then,\r\nall beneficiaries specified in the notification for\r\nacquisition issued under the 1894 Act, shall be\r\nentitled to compensation under the provisions of\r\nthe 2013 Act. The proviso makes it clear that in\r\ncase of compensation concerning the majority of\r\nlandholdings has not been deposited, then <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">recorded owner(s) at the time of issuance of\r\nnotification under Section 4 of the 1894 Act shall\r\nhave the right to receive the compensation.\r\nPurchasers after Section 4 notification have not\r\nbeen given the right to receive the higher\r\ncompensation under the provisions contained in\r\nthe 2013 Act.\r\n</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b><br></b></i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">19. The 2013 Act presupposes that a person\r\nis required to be rehabilitated and resettled. Such\r\na person who has purchased after Section 4\r\nnotification as sale deed is void under the 1894\r\nAct, cannot claim rehabilitation and resettlement\r\nas per policy envisaged under the 2013 Act, as his\r\nland has not been acquired, but he has purchased\r\na property which has already been acquired by the\r\nState Government, he cannot claim even higher\r\ncompensation, as per proviso to Section 24(2)\r\nunder the 2013 Act. An original landowner cannot\r\nbe deprived of higher value under the 2013 Act,\r\nwhich higher compensation was not so\r\ncontemplated when the void transaction of sale\r\nhad been entered, and right is conferred under the\r\nproviso to Section 24(2) on recorded owners under\r\nthe 1894 Act. We have come across instances in\r\nwhich after notifications under Section 4 were\r\nissued and, the property was purchased at\r\nthrowaway prices by the builders and\r\nunscrupulous persons, such purchases are void </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and confer no right even to claim higher\r\ncompensation under Section 24(2) of the 2013 Act\r\nas it is to be given to the owner as mentioned in\r\nthe notification.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b><br></b></i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>20. Given that, the transaction of sale,\r\neffected after Section 4 notification, is void, is\r\nineffective to transfer the land, such incumbents\r\ncannot invoke the provisions of Section 24. As the\r\nsale transaction did not clothe them with the title\r\nwhen the purchase was made; they cannot claim\r\n“possession” and challenge the acquisition as\r\nhaving lapsed under Section 24 by questioning the\r\nlegality or regularity of proceedings of taking over\r\nof possession under the 1894 Act. It would be unfair\r\nand profoundly unjust and against the policy of the\r\nlaw to permit such a person to claim resettlement\r\nor claim the land back as envisaged under the 2013\r\nAct. When he has not been deprived of his\r\nlivelihood but is a purchaser under a void\r\ntransaction, the outcome of exploitative tactics\r\nplayed upon poor farmers who were unable to\r\ndefend themselves.\r\n</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>21. Thus, under the provisions of Section 24\r\nof the 2013 Act, challenge to acquisition proceeding\r\nof the taking over of possession under the 1894 Act\r\ncannot be made, based on a void transaction nor\r\ndeclaration can be sought under Section 24(2) by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">such incumbents to obtain the land. The declaration\r\nthat acquisition has lapsed under the 2013 Act is to\r\nget the property back whereas, the transaction\r\nonce void, is always a void transaction, as no title\r\ncan be acquired in the land as such no such\r\ndeclaration can be sought. It would not be legal,\r\njust and equitable to give the land back to\r\npurchaser as land was not capable of being sold\r\nwhich was in process of acquisition under the 1894\r\nAct. The 2013 Act does not confer any right on\r\npurchaser whose sale is ab initio void. Such void\r\ntransactions are not validated under the 2013 Act.\r\nNo rights are conferred by the provisions contained\r\nin the 2013 Act on such a purchaser as against the\r\nState.</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b><br></b></i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>24. The intendment of the 2013 Act is to\r\nbenefit farmers, etc. Subsequent purchasers cannot\r\nbe said to be landowners entitled to restoration of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">land and cannot be termed to be affected persons\r\nwithin the provisions of the 2013 Act. It is not open\r\nto them to claim that the proceedings have lapsed\r\nunder Section 24(2).”</span></i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Subsequent thereto, Constitution Bench of this Court\r\nin Indore Development Authority v. Manoharlal and\r\nOthers3\r\n had reiterated the same legal position that a\r\nsubsequent buyer of the property after issuance of the\r\nnotification under Section 4 the 1894 Act has no locus to invoke\r\nSection 24(2) of the 2013 Act. Reference can be made to the\r\nrelevant paragraph of the judgement.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“340. …….. The beneficiaries i.e. landowners\r\ncontemplated under the proviso to Section\r\n24(2), are the ones who were so recorded as beneficiaries as on the date of issuance of\r\nnotification under Section 4 of the 1894 Act.\r\nThe provision is not meant to be invoked on\r\nthe basis of void transactions, and by the\r\npersons who have purchased on the basis of\r\npower of attorney or otherwise, they cannot\r\nclaim the benefit under Section 24 as is\r\napparent from the proviso to Section 24(2)\r\nand the decision in Shiv Kumar v. Union of\r\nIndia”.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. In the case in hand it is the admitted position on\r\nrecord that notification under Section 4 of 1894 Act was issued\r\non 25.11.1980 and the sale deed in favour of the respondent\r\nno. 1 was registered on 18.6.2003. Rather it is evident from\r\nthe affidavit filed by the Land Acquisition Collector in the High\r\nCourt that the respondent no.1 purchased the land from Behl\r\nBrothers vide registered sale deed dated 18.06.2003, who had\r\npurchased the same from M/s. Ansal Housing and Estates (P)\r\nLtd. vide sale deed dated 09.06.1981, which itself was after the\r\nissuance of notification under Section 4 of the 1894 Act on\r\n25.11.1980. Hence, the respondent will not have right to\r\ninvoke jurisdiction of the High Court to claim that the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">acquisition in question had lapsed in view of Section 24(2) of\r\nthe 2013 Act.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n11. For the aforementioned reasons, the appeal is\r\nallowed. The impugned order passed by the High Court is set\r\naside and the writ petition filed by the respondent No.1 in the\r\nHigh Court is dismissed.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6fb5fe5c2bde8e81342cbb3ec6c595f5.jpeg', '332d3b94ed432f3a4ca24ccb1555c5e8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-02', 1, '', '', '2023-06-01 15:50:16', '2023-06-02 08:40:16'),
(3025, 'AIRsNBR8nsiYuzzDjqTJwpoAi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit seeking direction to conduct prayers/mass prayers in Church in a particular language invoking fundamental right under Article 25 does not involve Canon Law. Plaint cannot be rejected on this ground. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Diocese of Chikkamagaluru Vs Lancy J Narona and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Miscellaneous Second Appeal 98 of 2021 decided on 26 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This miscellaneous second appeal is filed under Order 43 Rule 1(u) of CPC against the order dated 09.03.2020 passed in R.A.No.64/2019 on the file of the Principal Senior Civil Judge and CJM, Chikkamagaluru.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>The factual matrix of the case of the plaintiffs before the Trial Court is that the plaintiffs are the citizens of this country by birth and they are residing at Chikkamagaluru town. They are Christian Catholics and their mother tongue is Konkani. They follow the language and traditions of Konkani speaking Catholics. It is contended that there exists a sizeable population of Konkani speaking people in the town of Chikkamagaluru. The plaintiffs are offering prayers at the local church situated at Chikkamagaluru town. The defendant is the religious head of the Archdiocese of Chikkamagaluru. Under the control of the defendant, all the churches in Chikkamagaluru and Hassan districts are functioning. The defendant is the head of the churches, which comes under the diocese of Chikkamagaluru and Hassan. He has been vested with the powers in relation to all matters relating to the administration of the churches. It is further contended that the plaintiffs have not been allowed to offer prayers/mass prayers in their language i.e., Konkani. Under Indian Constitution, Konkani is a recognized language and finds place at the 9th entry of 8th Schedule to the Constitution of India. It is their constitutional religious right to offer their prayers in the church in their own language. The act of the defendant amounts to infringement of fundamental right under Article 25(1) of the Constitution of India. It is also their case that on 18.08.2018, the plaintiffs have addressed a letter and requested the defendant to permit them to offer one prayer/mass prayer on Sunday at Chikkamagaluru Church in Konkani language.   It is further contended that there is no response to the said request. The plaintiffs are not against offering prayers in Kannada or any other language. It is contended that there is no statute framed even during British regime which had adopted the statutory or Canon Law to the churches in India. No Law in respect of Christian churches has been framed in India and there is no statutory law.   The defendant is also governed by the law of the land. Hence, prayed the Court to direct the defendant to conduct the prayers/mass prayers in Konkani language on every Sunday by allowing one mass out of three masses held on each Sunday at the discretion of the defendant at the churches situated in Chikkamagaluru and also sought the relief to direct the defendant to allow on each Sunday one time Konkani catechism classes and at least two masses in a week and one mass in Konkani in every festival mass and also sought for the relief of permanent injunction restraining the defendant from curtailing the fundamental rights of the plaintiffs guaranteed under Article 25(1) of the Constitution of India.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>In pursuance of the suit summons, the defendant appeared and filed the written statement and also filed an application under Section 9 and Order I Rule 8 and also under Order VII Rule 11(a) and (d) of CPC and prayed the Court to dismiss the suit as barred by law as well as no cause of action and for not obtaining permission from the Court to file representative suit in the interest of justice. In support of the application, an affidavit is also sworn to by the Bishop, Chikkamagaluru Diocese contending that with respect to religious matter, the plaintiffs have approached the Court and the same is outside the purview of civil law and it has to be handled by the religious authority of the Catholic church. The civil Court has no jurisdiction to entertain the suit. It is also contended that as per the Canon Law, the Bishop of the Diocese is empowered to take decision with respect to the language policy. It is contended that suit is barred under Canon 221(1), 375(1), 391, 392, 393, 1400(2), 1401, 1419 and 1442. It is contended that the plaintiffs have no locus standi to represent the community at large. Hence, the plaintiffs have filed this suit in the individual capacity, not in the representative capacity. Hence, prayed the Court to dismiss the suit by allowing the application.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, it is not in dispute that the suit is filed for the relief of directing the defendant to allow them to make the prayer in Konkani language. The defendants have come up with the defence that Canon Law is applicable and the civil Court is not having any jurisdiction to entertain the same. Having considered the principles laid down in the judgments referred supra and also the contentions urged by both the parties, the Court has to look into the material on record. On perusal of the plaint, it discloses that the prayer is sought with regard to directing the defendant to conduct the prayer/mass in Konkani language on every Sunday by allowing one mass out of the three masses held on each Sunday at the discretion of the defendant at the churches.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 21.<span style=\"white-space:pre\">	</span>The prayer in the plaint is only for conducting the prayer in Konkani language on every Sunday and the same is also at the discretion of the defendant and the same is nothing but for worshiping. The very contention of the appellant’s counsel that it amounts to matter of rituals cannot be accepted. The other contention is that the defendant is having all right to conduct the prayer and the same is its discretion and the said contention is also cannot be accepted. The law of land is applicable and the statutory law has to be looked into and the same is considered by the First Appellate Court relying upon the judgment of Apex Court in the case of CLARENCE PAIS referred supra and this Court also extracted the paragraph 4 of the Apex Court judgment wherein the Apex Court held that unless the Divorce Act recognizes the jurisdiction, authority or power of Ecclesiastical Tribunal (sometimes known as Church Court) any order or decree passed by such Ecclesiastical Tribunal cannot be binding on the courts which have been recognized under the provisions of the Divorce Act to exercise power in respect of granting divorce and adjudicating in respect of matrimonial matters. It is further held that it is well settled that when legislature enacts a law even in respect of the personal law of a group of persons following a particular religion, then such statutory provisions shall prevail and override any personal law, usage or custom prevailing before coming into force of such Act. It is further held that there is no scope for any other authority including Ecclesiastical Tribunal (Church Court) to exercise power in connection with matrimonial matters which are covered by the provisions of the Divorce Act. It is also observed that the High Court has rightly pointed out that even in cases where Ecclesiastical Court purports to grant annulment or divorce the Church authorities would still continue to be under disability to perform or solemnize a second marriage for any of the parties until the marriage is dissolved or annulled in accordance with the statutory law in force.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22.<span style=\"white-space:pre\">	</span>Having considered the principles laid down in the judgments referred supra, it is very clear that the Canon Law is not recognized but the Trial Court has framed the point for consideration with regard to the applicability of Canon Law and based on the Canon Law only comes to the conclusion that the suit itself is not maintainable. Admittedly, the suit is filed for the relief of worshiping in the church in a particular language. It is the contention in paragraph 6 of the plaint that there are 42 Parishes of Chikkamagaluru and out of which the Parishes of different places are also allowed to do the prayer in different languages and the same is disputed by the appellant herein. When such being the case, the same has to be decided only in full fledged trial and not at the initial stage of considering the averments made in the plaint. It is rightly pointed out by the learned counsel for the respondent that while entertaining the application with regard to the maintainability is concerned, the Court has to look into the averments of the plaint and it is also settled law that the defence cannot be considered while considering the averments made in the plaint with regard to the maintainability and for rejection. No doubt, the application is also filed along with other provisions invoking Order VII Rule 11(a) and (d) and the same is not pressed. But main contention is that suit in the capacity of individual cannot be maintained. The said aspect is also considered by the First Appellate Court while reversing the finding of the Trial Court. The First Appellate Court having taken note of the principles laid down by the Apex Court, in paragraph 20, applied the said principle and apart from that relied upon the principles laid down in AIR 1998 ALAHABAD (1)   and AIR 1952 SC 245   and comes to the conclusion that even in the individual capacity also prayer can be made with regard to right to offer a prayer. The First Appellate Court taken note of the factual aspects that the very approach made by the Trial Court in framing the point for consideration with regard to the applicability of Canon Law and also with regard to the cause of action. The First Appellate Court observed that even though the defendant already urged before the Trial Court that he will not press question of cause of action, the Trial Court erroneously made the approach without the pleadings which has not been pressed into service when the application filed by them is only with regard to Section 9 as well as Order I Rule 8 of CPC. Hence, the First Appellate Court rightly reversed the finding of the Trial Court having considered the material on record and comes to the conclusion that the very defence taken by the appellant is not sustainable in the eye of law and the matter requires to be considered in accordance with law. Hence, I do not find any error committed by the First Appellate Court in reversing the finding of the Trial Court thus, no merit in this appeal to set aside the order of the First Appellate Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> The miscellaneous second appeal is dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ec6de92d68db68a73e5ec3b571027502.JPG', '2e2a049775eac19bc969de1161635a54.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-03', 1, '', '', '2023-06-02 12:54:01', '2023-06-03 10:36:31'),
(3026, 'X7zh30s8QS7DyEwt6oMv98gZz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Copyright infringement. Merely because a civil dispute is being fought between the parties, the criminal proceedings cannot be halted, per se, on that ground. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Mangalore New Sultan Beedi Works Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 10970 of 2023 decided 31 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petitioner, a beedi making partnership firm is invoking the writ jurisdiction of this Court about its FIR/complaint in Crime No. 23/2023 allegedly being kept in a cold storage presumably because of pendency of its Com.O.S. NO.478/2022, wherein an order of Temporary Injunction has been secured against the accused. Learned Sr. Advocate appearing for the Petitioner argues that the charging provisions of the Copyright Act, 1957 more particularly Section 63 are structured in such a way that the same fact matrix may give raise to a cause of action for civil suit and for a criminal proceeding; that being the position, he submits, the jurisdictional police have to undertake & accomplish the investigation on a war footing, brooking delay in matters like this not being desirable.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter broadly agreeing with the submission made on behalf of the Petitioner-Firm as under and for the following reasons:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> a)<span style=\"white-space:pre\">	</span>Chapter XI of the 1957 Act comprising of Sections 51 to 53A provides for civil remedies by way of injunction, damages, accounts or otherwise in the case of infringement of copy rights. The substantive part of Section 55 being very relevant is reproduced: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“(1) Where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Act, be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right”. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>For the alleged infraction of registered Copyrights, Petitioner’s civil suit is pending and an order of Temporary Injunction has been granted by the Civil Court, is vouched by the material placed on record. Chapter XIII comprising of Sections 63 to 70 mentions about the offences relating to copyright infringements. Section 63 being one of the charging provisions has the following text: “Any person who knowingly infringes or abets the infringement of: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(a)<span style=\"white-space:pre\">	</span>the copyright in a work, or (b)<span style=\"white-space:pre\">	</span>any other right conferred by this Act except the right conferred by section 53A, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees”. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> In other words, the Act provides for both civil remedy and criminal prosecution, in the case of such an infringement. The outcome of one does not depend upon the outcome of another, subject to all just exceptions. Petitioner has already filed an FIR which has been duly registered by the jurisdictional police.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> b)<span style=\"white-space:pre\">	</span>The infringement of a copyright gives rise to a cause of action on which a civil proceeding like an Injunctive Suit can be structured; it also can give rise to a cause of action for the institution of a criminal proceeding; in the former, it is preventive, remedial, compensatory or otherwise, whereas, in the latter, it is primarily punitive. The object, nature & outcome   of these proceedings, thus are not the same. That is how the statutory scheme is enacted by the Parliament. Merely because a civil dispute is being fought between the parties, the criminal proceedings cannot be halted, per se, on that ground. This view gains support from the Hon’ble Delhi High Court decision in JAY PRAKASH v. STATE, 2008 Cr.L.J.(NOC) 637. Del. In the said case, civil litigation as to use of “V” has pending and there was no agreement between the parties either by way of an interim arrangement nor was there any interim order of the court, held, that mere withholding of mention of such litigation would not preclude Trial Court from framing of charges under Section 63 of the 1957 Act. There may be cases where the processing of one proceeding is kept at a bay, because of the likely adverse     consequences that follow   on a particular party involved in the other proceeding, both having been structured on the same set of facts. However, this is a different aspect of the matter. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>c)<span style=\"white-space:pre\">	</span>Learned Sr. Advocate appearing for the Petitioner is right in contending that the same fact matrix may give rise to a cause of action in tort, in contract & in crime; unless, law interdicts a particular action inter alia in criminal law, the police cannot keep the complaint pending on the ground that, parties are fighting a civil proceeding on the same fact matrix. In Kenny’s OUTLINES OF CRIMINAL LAW, 18th Edition, 1962, Cambridge University at Page 1 it is said as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“Writers on English legal history have often mentioned that in early law there was no clear distinction between criminal and civil offences. The two have been called a ‘viscous intermixture’ and it has been explained that the affinity between tort and crime is not in the least surprising when we remember how late in the history of law there emerged any clear conception of a difference between them….</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>” Similarly, in ‘CRIMINAL LAW’ by Smith and Hogan, 7th Edition, ELBS at page 19 it is written <i>“…most torts are crimes as well, though some torts are not crimes and some crimes are not torts.   It is not in the nature of act, but in the nature of the proceedings that the distinction consists; and both types of proceeding may follow where an act is both a crime and a tort….”</i>   In view of this clarity obtaining in criminal jurisprudence, the reluctance of the police to process the complaint may not be correct. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In the above circumstances, this writ petition succeeds; a Writ of Mandamus issues to the respondent- police to undertake & accomplish the investigation in the subject offence within an outer limit of three months. Delay if brooked may result into an adverse entry being made in the Service Records of the concerned police official. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Now, no costs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e959fc5b2982c4320be1cc3f0163c358.JPG', '2ff349e8b081f6e2a5600dd4a4a86c75.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-03', 1, '', '', '2023-06-02 13:05:54', '2023-06-03 06:48:20');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3027, 'F6iyGbOjLdxbLcj8slF457Umf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Electricity Act, 2003. Karnataka High Court directs e-filing, e-appearance and other e-services to be made available by all national tribunals within 6 months.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Solvis Energie India Private Limited Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 10634 of 2021 decided on 22 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The Government of Karnataka vide notification dated 22.05.2014 had issued a notice inviting tender inviting private participation for the generation of solar power through Karnataka Renewable Energy Limited [‘KREDL’]. The petitioner applied vide online application for the establishment of 2 MW capacity plant. After evaluation of the application, the same was accepted and a letter dated 17.03.2015 was issued to set up Solar Power Plant [SPP] at Harallu village, Kasaba Hobli, Kanakapura Taluk, Ramanagara District under 1-3 MW Farmers Scheme.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 3.<span style=\"white-space: pre;\">	</span>The petitioner executed a Power Purchase Agreement [PPA] on 2.07.2015 with the 3rd respondent. As per the said PPA, the effective date of the agreement is stated to be the signing of the agreement. The scheduled commissioning date [SCD] is stated to be 18 months from the effective date. Thus, the petitioner being the project proponent was required to commission the project by 1.01.2017, the agreement having been executed on 2.07.2015. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>On a technological audit being done, the land at Kanakapura was found to be technically unsuitable for establishing the Solar Power Plant (SPP) due to the solar radiation being on a lower end and the topography not being suited for the establishment of a SPP. The petitioner, therefore, purchased an alternate land at Challakere, Chitradurga district and approached the 2nd respondent-KPTCL vide a representation dated 2.09.2015 seeking permission to shift the project site from Kanakapura to Challakere, Chitradurga District. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>The Government of Karnataka vide a cabinet decision 18.01.2017 considered the representation of the petitioner and other similarly situated farmers for shifting of project location and vide G.O. dated 21.1.2017, the Government of Karnataka revised the applicable tariff from Rs.8.40/- to Rs.6.51 per unit and accorded six months time to complete the project, as also permitted shifting of the project. Subsequent thereto, the petitioner took steps to secure necessary permission, but, however, on 4.02.2017, KREDL informed the petitioner that Challakere taluk had crossed 200 M.V. capacity and that no new permission would be granted to the petitioner. The petitioner approached the State Government explaining the difficulty, as also the fact that she had invested huge amounts of money in Challakere and requested for permission in respect of the said land. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6. On 17.4.2017, the State government<span style=\"white-space: pre;\">	</span>accorded permission to the petitioner and thereafter, KREDL on 19.04.2017, accorded permission to the petitioner to go ahead with the project at Challakere taluk. A Supplementary Power Purchase Agreement [SPPA] was executed on 28.04.2017, modifying the original PPA to indicate the formation of SPV viz., the petitioner. Though six months extension had been given by the State government under the SPPA dated 28.4.2017, the petitioner was only given time till 1.07.2017 to implement the project. Acting on the same, the petitioner established the project, and a certificate of commissioning was issued on 1.07.2017, which is well within the time prescribed under the SPPA. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>Despite the commissioning certificate having been issued, the respondent contended that there was no such commissioning since there was no flow of electricity in the lines, the commissioning would be said to be complete only on flow of electricity and as such, contended that the flow of electricity having occurred only on 7.7.2017, the tariff rate as on that date would be Rs.4.36, the petitioner would be entitled to such revised generic tariff and not the earlier tariff of Rs.6.15 per Unit.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 8.<span style=\"white-space: pre;\">	</span>The KERC vide its communication dated 4.10.2017 was of the opinion that the commissioning had not occurred on 1.07.2017 since there was no injection of electricity into the grid by the petitioner. The KERC further observed that BESCOM while forwarding the application, forwarded the same without data and information and many a time without scrutiny or validation of the authenticity of the data. In that background, the KERC had further observed that since BESCOM was not furnishing its views and recommendation on the proposal, the commission was finding it difficult to either accept or reject the proposal and directed BESCOM to henceforth submit proposals with verification and authentication of the data and returned the SPPA submitted for approval under cover of its letter dated 4.10.2017. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>It is thereafter that the BESCOM vide its letter 7.12.2018 called upon the project proponent to submit various documents. Then it was contended that the log extract of KPTCL Station pertaining to injected power to the KPTCL grid was without attestation by the concerned officials and called upon the petitioner to furnish proper documents. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">10.<span style=\"white-space: pre;\">	</span>Aggrieved by the same, the petitioner had approached the KERC in O.P. No.73/2018 which came to be disposed on 3.12.2019 in terms whereof the KERC dismissed the claim of the petitioner and held that the petitioner would be entitled to revised tariff of Rs.4.36 only per unit under PPA and rejected all other contentions. It is aggrieved by the same that the petitioner is before this Court challenging the said order.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>On the basis of the submissions of the counsel for the parties, the points that would arise for consideration are: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space: pre;\">	</span>Whether this Court could take up the matters in view of the submissions made by the counsel for the respondent that there is alternative efficacious remedy to the APTEL? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ii.<span style=\"white-space: pre;\">	</span>Whether commissioning in the present matter would require injection of electricity into grid? iii.<span style=\"white-space: pre;\">	</span>Whether the commissioning certificate issued by the BESCOM and KPTCL authorities in favour of the petitioner be deemed to be sufficient to comply with the commercial operation date in terms of Article 1.1.(vii) of the Power Purchase Agreement? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>iv.<span style=\"white-space: pre;\">	</span>Whether the Supplementary Power Purchase Agreement would require permission and sanction of the KERC even if Power Purchase Agreement had already received such sanction?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> v.<span style=\"white-space: pre;\">	</span>Whether the order passed by the KERC suffers any illegality requiring interference at the hands of this Court?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> vi.<span style=\"white-space: pre;\">	</span>What order?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space: pre;\">	</span>ANSWER TO POINT NO.1 & 2: Whether this Court could take up the matters in view of the submissions made by the counsel for the respondent that there is alternative efficacious remedy to the APTEL? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>And Whether commissioning in the present matter would require injection of electricity into grid?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.4.<span style=\"white-space:pre\">	</span>Insofar as the authority being vested with the KERC to determine and fix the tariff is concerned, there cannot be any dispute. The issue in the present case is not as much as fixation of tariff but is as relating to whether the plant had been commercially commissioned or not. The date on which the commissioning happens would determine the tariff applicable, the verification of the said date or otherwise would not require fixation of tariff by this Court as sought to be contended by Sri.Sriranga, learned Senior counsel.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 17.5.<span style=\"white-space:pre\">	</span>The tariff has already been fixed, it is only the applicability thereof which is under question. Therefore, the decisions cited by Sri.Sriranga, learned Senior counsel in Tata Power co.Ltd.16, Surya Energy Photo Voltaic India Pvt. Ltd.17 are not applicable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.6.<span style=\"white-space:pre\">	</span>As regards the appellate remedy, the contention of Sri.Shridhar Prabhu, learned counsel for the petitioner is that the above petition is filed during COVID-19 when the appellate tribunal was not working. Apart therefrom, it is submitted that the appellate tribunal does not provide e-filing of cases and or appearance through virtual conferencing mode. Hence, the decisions in Vatsala Bellary , Graphite India, Hassan Thermal Power Pvt.<span style=\"white-space:pre\">	</span> Limited, Reliance Infrastructure Ltd13,<span style=\"white-space:pre\">	</span>A.P.Transco14 (referred to supra) would also not be applicable to the present case since the exceptional situation of COVID-19 has been taken into consideration while registering the above case. At this length of time, it could not now be proper for this court to relegate the petitioner to the appellate remedy, as such I am of the considered opinion that this Court having heard the parties at great length would have to pass necessary orders on the merits of the matter and at this stage, on technicalities not to relegate the petitioner to an appellate authority, more so as indicated earlier, filing of the above petition was during COVID-19 pandemic. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.7.<span style=\"white-space:pre\">	</span>Hence, I answer Point No.1 by holding that for the reason mentioned above, this Court could take up the matters, the availability of an alternative and efficacious remedy by filing an appeal would not come in the way for this court to exercise its jurisdiction.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>ANSWER TO POINT NO.3: Whether the commissioning certificate issued by the BESCOM and KPTCL authorities in favour of the petitioner be deemed to be sufficient to comply with the commercial operation date in terms of Article 1.1.(vii) of the Power Purchase Agreement?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.17.<span style=\"white-space:pre\">	</span>In my considered opinion, the said decisions do not deal with the situation where a commissioning certificate has been issued by the KPTCL/BESCOM officials, it does not deal with a situation where in the agreement there is no requirement for injection of electricity for commissioning. The clause in the agreement requiring commissioning to be certified by KPTCL/BESCOM, the same having been done, those decisions would not in my considered opinion apply to the present fact situation. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.18.<span style=\"white-space:pre\">	</span>At no point of time there is any correspondence issued by respondents No.2 and 3 to the petitioner indicating that commissioning can only happen upon injection of electricity into the grid. Thus, the aspect of commissioning can only be gathered from the contents of the agreement which have been reproduced hereinabove and from the contents of the commissioning certificate which have been reproduced above. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.19.<span style=\"white-space:pre\">	</span>Neither the clause nor the certificate requiring injection of electricity, the contention now raised by Sri.Sriranga, learned Senior counsel for respondents No.2 and 3 cannot be accepted, more so when it is when the officials of respondents No.2 and 3 who have issued commissioning certificate. If at all the requirement of injection of electricity was of paramount importance, those senior officials would not have issued such a certificate. It is not the case of respondents NO.2 and 3 that there is any collusion between the petitioner and those officials and or that the commissioning certificate which has been issued is improper. A vague denial of the certificate and or contending that the requirement of commissioning have not been satisfied, without impugning the said commissioning certificate and or taking any action against the persons who have signed the commissioning certificate as also minutes of the meeting, in my considered opinion, cannot give rise to a situation where respondents No.2 and 3 can contend that commissioning is not complete despite a certificate to that effect has been issued. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.20.<span style=\"white-space:pre\">	</span>Hence, I answer Point No.3 by holding that in the present matter there is no requirement of injection of electricity into the grid to denote commissioning of the plant. The commissioning certificate issued by officers of KPTCL/BESCOM, respondents No.2 and 3 is self-sufficient. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.21.<span style=\"white-space:pre\">	</span>It is also to be noted that the petitioner has spent huge amounts of money and despite several obstacles has completed erection and commissioning of the plant. There is no dispute as regards inter connection. The plant being a solar power plant, as and when the sunlight is available the plant would generate electricity for consumption. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.22.<span style=\"white-space:pre\">	</span>Thus, in my considered opinion, in terms of clause (vii) of Article 1.1., the requirement only being of a certification by KPTCL/BESCOM, the same has been complied, resulting in commissioning of the plant within the timeframe.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>ANSWER TO POINT NO.4:Whether the Supplementary Power Purchase Agreement would require permission and sanction of the KERC even if Power Purchase Agreement had already received such sanction?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.1.<span style=\"white-space:pre\">	</span>The contention of Sri.Sriranga, learned Senior counsel for respondents No.2 and 3 is that the supplementary PPA has not been approved by the KERC and therefore, the same cannot be acted upon. Such a submission in my considered opinion cannot be countenanced either in law or facts. Such a stand is not taken at the time when commissioning the plant. The only contention taken then was electricity was not injected. The manner in which the present matter is addressed and argued before this Court leads only to a singular conclusion, in that KPTCL/BESCOM, respondents No.2 and 3 are seeking to deny the just payments to the petitioner for one reason or the other or by hook or crook, which is not acceptable. Statutory authorities like KPTCL/BESCOM cannot indulge in such kind of activities to deprive a bonafide investor in a power producing project of the due amounts. PPA having received sanction, the supplementary PPA only seeking of extension of time, in my considered opinion would not require any such sanction as alleged or otherwise. Be that as it may, this was not a ground raised at the earliest point of time and has only been raised as an after thought. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.2.<span style=\"white-space:pre\">	</span>Thus, I answer Point No.4 by holding the Supplementary PPA does not require permission or sanction of KERC.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>ANSWER TO POINT NO.5: Whether the order passed by the KERC suffers any illegality requiring interference at the hands of this Court?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.2.<span style=\"white-space:pre\">	</span>In the reasoning portion, the KERC has first come to a conclusion that there is injection of electricity into the grid which is required to be made and thereafter has examined whether there is such injection or not. Para 11(b) of the order dealing with the same does not speak of or appreciate requirement of such injection except to come to a conclusion that injection is necessary. 20.3.<span style=\"white-space:pre\">	</span>As observed in answer to Point No.1 above, there is no clause in the agreement which requires injection. This concept of injection, in my considered opinion, has been brought about only to deny the additional amounts which would be required to be paid to the petitioner if the commissioning had happened on 1.07.2017. 20.4.<span style=\"white-space:pre\">	</span>It is by denying the said commission, that instead of making payment of tariff of Rs.6.51/KW, what is sought to be paid is a tariff of Rs.4.36/KW. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.5.<span style=\"white-space:pre\">	</span>Thus, the beneficiary of this reduction of tariff would be both respondents No.2 and 3 and it is with the intention of being such a beneficiary wanting to pay lesser tariff to the petitioner than what the petitioner is entitled to that such a stand has been taken by respondents No.2 and 3, which in my considered opinion is a dishonest stand. The statutory authorities like respondents No.2 and 3, in my considered opinion cannot indulge in such kind of practices and it is these kind of practices which have resulted in unnecessary litigation between the power producers and these statutory authorities. This aspect has also not been appreciated by the KERC and as such, there being no particular reasoning in coming to a conclusion that injection of electricity was required for commissioning the order of the KERC required interference at the hands of this Court.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space: pre;\">	</span>ANSWER TO POINT NO.6: What Order?What Order? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21.1.<span style=\"white-space:pre\">	</span>The petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0c3fe1a7c10c20d8f24e28dd924db626.JPG', '25085e1d35617e3a3d3891eee1965164.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-05', 1, '', '', '2023-06-02 13:34:03', '2023-06-05 12:21:31'),
(3028, 'msvpAAACoAfhGd53sXrnirOYr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Conviction for the offence under Section 366A Procuration of minor girl for illicit sexual intercourse must be fortified by sufficient evidence and reasons when the offence of rape not proved. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ramesh Irappa Mutyanatti and others Vs The State of Karnataka<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 100197 of 2014 decided on 24 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Rajesh Rai K.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This appeal is directed against the Judgment and order of sentence dated 23.09.2014 in S.C.No.413/2011 by the VIII Additional District and Sessions Judge, Belagavi (hereinafter referred to as ‘trial Judge’).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 2.<span style=\"white-space: pre;\">	</span>The appellants/accused Nos.1 and 2 are convicted by the trial Court for the offence under Section 366(A) read with Section 34 of IPC for a period of seven years simple imprisonment with a fine of Rs.20,000/- each and in default of payment of fine, they are directed to undergo simple imprisonment for six months. The appellants/accused Nos.1 and 2 also convicted for the offence punishable under Section 344 read with Section 34 of IPC with simple imprisonment for one year each and also directed to pay fine of Rs.10,000/- and in default of payment of fine, they are further directed to undergo simple imprisonment for three months each. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>The brief facts of the prosecution case is that, on 18.03.2011 about 4.00 p.m., at Santibastawad village, near Navage cross, Shivaji Nagar, the accused No.1/appellant No.1 with an intention to marry the daughter of the complainant, along with accused Nos.2 to 6 in furtherance of their common intention enticed the victim-girl and kidnapped her in a motorcycle bearing registration No.KA-22/EE-3684 and took her to Navage cross and from there he took her to Belgaum bus-stand and from there to Kolhapur. It is the further case of the prosecution that, the accused No.1 wrongfully confined the victim in a room for about 18 days and committed forcible sexual intercourse on her and thereafter took her to Ramaguruwadi village of Khanapur taluk and stayed in the house of garden land for two days and committed forcible sexual intercourse on her without her consent.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>Having heard the learned counsel for the appellants and the learned HCGP and on perusal of the evidence and materials available on record, the points that would arise for my consideration are; </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space: pre;\">	</span>Whether the Judgment and order under this appeal suffers from any perversity or illegality ? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space: pre;\">	</span>Whether the trial Judge has justified in convicting the appellants for the offences punishable under Sections 366A and 344, 109 read with Section 34 of IPC ? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">(iii)<span style=\"white-space: pre;\">	</span>What order ?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>28.<span style=\"white-space: pre;\">	</span>Before appreciating the evidence on record, a charge with reference to 366(a) of the Indian Penal Code needs closure examination. Section 366(a) of IPC is extracted as under; </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“366A. Procuration of minor girl.—Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.” </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>29.<span style=\"white-space: pre;\">	</span>A perusal of the aforesaid section reveals that inducing of minor girl to constitute an offence under Section 366(A) should have been with reference to an intent to force or seduced her to “illicit intercourse with another person.” In fact, there is no mention of any other person in the sequence of allegations leveled against the appellant/accused.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 30.<span style=\"white-space: pre;\">	</span>From a bare perusal of the Section 366A, it appears that there are three essential ingredients to constitute an offence of procurement of a minor girl under Section 366A. Those are 1) Victim girl may be induced by accused. 2)She must be minor age i.e. under the age of 18 years and 3) She must be induced by the accused person to go from a place or to do any act that intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person. Amongst those, inducement is the basic requirement of law in a case of an offence under 366A of IPC. Though, the word ‘inducement’ has not been defined anywhere in the penal code, in ordinary dictionary meaning ‘inducement’ means the act or process of enticing or persuading another person to take a certain course of action. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">31.<span style=\"white-space: pre;\">	</span>Sections 366A and 366B were inserted by Amendment Act 20 of 1923 in IPC to effect to certain Articles of the International Convention for the Suppression of Traffic in Women and Children.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Said sections are intended to punish the export and import of girls for prostitution. Section 366A IPC deals with procurement of minor girls from one part to another part of the country. Section 366B IPC makes it an offence to import into India from any country outside India girls below the age of 21 years for the purpose of prostitution. The provisions are framed with pious aim to safeguarding public interest of morality than the chastity of a particular woman.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>39.<span style=\"white-space:pre\">	</span>Viewed from any angle and considering the evidence available on record, more particularly, the victim herself turned hostile to the prosecution case and the father and mother of the victim girl also turned hostile to the prosecution case by categorically denying the very incident of kidnap and forcible sexual assault by the accused No.1, In my considered opinion, the learned trial Judge has erroneously came to the conclusion that the charges leveled against accused are proved beyond all reasonable doubt. It is for the prosecution   to prove it’s case beyond all reasonable doubts and by relying on the stray admissions made in the cross examination of hostile witnesses and by assumption and presumption, the accused cannot be convicted for the charges leveled against them. It is the settled position of law by the Hon’ble Apex Court in catena of judgments while appreciating evidence in a criminal trial, the Court has to presume the innocence of the accused where there is a doubt or two views are possible. The benefit of doubt has to be extended to the accused. The trial court cannot act on hunchas instincts and conjectures while convicting the accused. The trial Court has to appreciate evidence in such a manner by considering the contradictions, inconsistency, exaggerations and embellishments. My view is fortified by the judgment of Division Bench of this Court in the case of Yenkappa and another Vs. State of Karnataka, reported in (2021) 1 KLJ 222(DB). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>40.<span style=\"white-space:pre\">	</span>In that view of the matter, on close inspection of material available on record including the impugned judgment, this Court is of the view that the trial Court failed to constitute and consider the essential ingredients of Section 366A of IPC in order to convict the appellant for the said offence. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>41.<span style=\"white-space:pre\">	</span>Nevertheless, the State has not filed any appeal against the acquittal of the accused for the offence punishable under Sections 376 and 344 of IPC. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>42.<span style=\"white-space:pre\">	</span>In the facts and circumstances of the case, in my considered opinion, trial Judge has erred in convicting the appellant for the offence under Section 366A of IPC and accordingly points for consideration are answered. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>43.<span style=\"white-space:pre\">	</span>Hence, for the aforesaid reasons, I am of the opinion that the Prosecution failed to prove the guilt of the accused/appellant for the offences charged against him i.e. offence under Section 366A and 344 r/w 34 of IPC.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>The Judgment and order of sentence dated 23.09.2014 in S.C.No.413/2011 passed by the VIII Additional District and Sessions Judge, Belagavi is set aside. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>The appellants/accused Nos.1 and 6 are acquitted from the charges leveled against them and their bail bonds stand cancelled.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3eb3e0e63b3aa89ec0c4e4d7da02bdd3.jpeg', 'fd49f06ea2e4c08a95598a6dd6f8027a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-03', 1, '', '', '2023-06-02 16:28:40', '2023-06-03 03:21:37');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3029, 'bZ7O71z1DJx0TROtu7TiYCR0U', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor, can be filed only before the Family Court and the District Court has no jurisdiction. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nasima Banu and others Vs Shabas Khan and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 273 of 2023 decided on 30 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The respondents in G and WC No.4/2023 filed I.A.No.3 under Order 7 Rule 11 of CPC praying the Court to dismiss the petition for want of jurisdiction. In support of the application, an affidavit is sworn to by respondent No.2 that the respondents and their grandchildren are residing at Arehalli Village and the petitioners are not residing within the jurisdiction of the Court, as such the Family Court has got jurisdiction to entertain this petition. The cause of action also not arose within the jurisdiction of the Court. This petition is filed based on false facts stated by the petitioners and hence prayed the Court to dismiss the petition. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>In response to the application, the objection statement was filed by the petitioners contending that the District Court has got jurisdiction under the provisions of the Guardians and Wards Act, 1890 (‘the Act’ for short) and this case has been made over to the said Court which has got jurisdiction to decide this petition. The Trial Court having considered the pleadings of the parties, framed the point for consideration whether I.A.No.3 filed by the respondents under Order 7 Rule 11 of CPC seeking rejection of the petition for want of jurisdiction deserves to be allowed. The Trial Court having considered the grounds urged in the application as well as the objection statement, extracted Section 9 of the Act, wherein it is stated with regard to the Court having jurisdiction to entertain the application and also taken note of the fact that originally the petition was filed before the District Court and the same was made over to the said Court by virtue of Section 4A of the Act. Hence, comes to the conclusion that the Court is having jurisdiction to entertain the petition. Being aggrieved by the said order, the present revision petition is filed.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>Having heard the learned counsel for the petitioners and the learned counsel for the respondents and also on perusal of the material available on record, particularly considering the address mentioned in the petition, both the petitioners and the respondents are residing within the jurisdiction of Hassan District and on perusal of the application, the same is filed before the District and Sessions Court. The same is numbered as G and WC No.4/2023 and the same is assigned to the Trial Court to dispose of the same in accordance with law under Section 4A of the Act. It is not in dispute that the petition is filed before the District and Sessions Court and the only contention of the learned counsel for the petitioners is that ought to have filed the same before the Family Court. It is not in dispute that the petition is filed under the provisions of Section 10 of the Act and also Sections 10, 17, 19, 25 read with 102 of the Muslims Act. The petitioners are not disputing the fact that the same is filed before the District Court. The only contention is that in view of Section 8 of the Family Courts Act, 1984, there is exclusion of jurisdiction and pending proceedings. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>Section 8 of the Family Courts Act is very clear that no district court or any subordinate civil court referred to in sub-section (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the explanation to that sub-section. Hence, this Court has to take note of Section 7 of the Family Courts Court with regard to the jurisdiction is concerned and explanation to Section 7 is very clear that the suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:- (a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage; (b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person; (c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them; (d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship; (e) a suit or proceeding for a declaration as to the legitimacy of any person; (f) a suit or proceeding for maintenance; (g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. Sub- clause (2) of Section 7 is also very clear that subject to the other provisions of this Act, a Family Court shall also have and exercise- (a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and such other jurisdiction as may be conferred on it by any other enactment.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 12.<span style=\"white-space: pre;\">	</span>Having considered Section 8 as well as explanation to Section 7 of the Family Courts Act, Section 7(g) is very clear that a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor, the Family Court is having the power to consider the same. It is not in dispute that the present petition is filed praying the Court for appointment of the guardian in respect of a minor. When the Family Courts Act is very clear with regard to the jurisdiction is concerned under Section 7 and when Section 7(g) is very clear with regard to a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor and when the Family Court is established to deal with all these issues involved between the parties, the Trial Court has not considered the same and only considered Section 9 of the Act and comes to the conclusion that the Court is having the power. Section 8 of the Family Courts Act is very clear with regard to exclusion of jurisdiction and pending proceedings where a Family Court has been established for any area. The very proviso of Section 8(a) is very clear that no district court or any subordinate civil court referred to in sub-section (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the explanation to that sub-section. Though an application is filed under Order 7 Rule 11 of CPC, it attracts Order 7 Rule 10 of CPC for want of jurisdiction and not Order 7 Rule 11 of CPC. Hence, it is clear that the Trial Court committed an error in dismissing the application and ought to have allowed the petition and directed the Court to return the petition to file the same before the Family Court for want of jurisdiction and hence the order requires to be set aside and revision petition requires to the allowed.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space: pre;\">	</span>The petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '30026a918e567ac073c852a07f69493b.JPG', '774d9ac61c2a6844e61434c1eb816b73.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-05', 1, '', '', '2023-06-04 18:22:44', '2023-06-05 03:17:22'),
(3030, '3qChUR2HBRq1rweTkymaDUMjJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'State Electricity Regulation Commission has no power to regulate inter-State power transmission since it falls only within the domain of the Central Electricity Regulation Commission. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Karnataka Power Transmission Corporation and others Vs M/S Shamanur Sugar Limited and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 46495 of 2012 decided on 22 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Karnataka Power Transmission Corporation Limited (KPTCL) is the State Transmission Utility as defined under Section 39 of the Electricity Act, 2003 (for short, ‘the Act’) as also a Government Company and all its shares are held by the State of Karnataka. KPTCL is engaged in the business of transmission of electricity in the State of Karnataka. 2nd petitioner is the State Load Dispatch Centre (SLDC) for the State of Karnataka constituted under Section 31 of the Act and now operates under 1st petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>1st respondent – M/s.Shamanur Sugars Limited (for short, ‘Shamanur’) is a generating company and has established bagasse-based co-generation power plant with a capacity of 20 MWs. Shamanur had entered into a Power Purchase Agreement (PPA) on 07.03.1998 for selling surplus power of 10 to 15 MWs. The PPA was for 10 years and expired in September 2011. After expiry of PPA of the year 1998, 1st respondent had sought Standing Clearance (SC) and No-Objection Certificate (NOC) for the purpose of exporting power from its generating plant.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>It is aggrieved by the imposition of such a Clause that Shamanur initiated proceedings before the 2nd respondent–Central Electricity Regulation Commission (CERC), contending that insertion of Clause (m) is in violation of CERC (Unscheduled Inter-Change Charges and Related Matters) Regulations, 2009 (for short, ‘Regulations of 2009’).</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>The points that would arise for consideration by this Court are: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1)<span style=\"white-space: pre;\">	</span>Whether CERC would have the power to regulate the transmission and distribution of power of intra-State lines? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2)<span style=\"white-space: pre;\">	</span>Whether CERC would have the power to regulate the transmission and distribution of power of inter-State lines?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 3)<span style=\"white-space: pre;\">	</span>Whether the disputes in the present matter could be raised under Section 79 (1)(f) of the Electricity Act? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4)<span style=\"white-space: pre;\">	</span>Whether SLDC can regulate inter-State electricity transmission by exercising its statutory powers? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5)<span style=\"white-space: pre;\">	</span>Whether there is a conflict of interest between KPTCL and SLDC?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 6)<span style=\"white-space: pre;\">	</span>Whether the order passed by CERC in Petition No.124/MP/2011 suffers from any illegality requiring interference at the hands of this Court? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7)<span style=\"white-space: pre;\">	</span>Whether the petitioners would have to be relegated to an appeal before the Appellate Tribunal in lieu of Section 111 of the Electricity Act on the account of the decision of this Court in R.K.POWERGEN PRIVATE LIMITED case as also the decision of the Hon’ble Apex Court in the case of NTPC Ltd?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 8)<span style=\"white-space: pre;\">	</span>What order?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space: pre;\">	</span>Answer to Point No.1: Whether CERC would have the power to regulate the transmission and distribution of power on intra-State lines? And Answer to Point No.2: Whether CERC would have the power to regulate the transmission and distribution of power on inter-State lines? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.1.<span style=\"white-space: pre;\">	</span>Point Nos.1 and 2 being related to each other are taken for consideration together.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.2.<span style=\"white-space:pre\">	</span>The CERC or the Central Electricity Regulation Commission is defined in terms of Section 2(9) of the Act of 2003 to be the Commission referred to in Sub-Section (1) of Section 76. Section 76 comes under Part X of the Act of 2003 relating to Regulatory Commissions. Section 76 refers to the Constitution of the Central Commission which shall discharge the functions assigned to it under the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.3.<span style=\"white-space:pre\">	</span>Section 79 refers to the functions of the Central Commission and has been reproduced hereinabove. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.4.<span style=\"white-space:pre\">	</span>A perusal of Section 79 would indicate that in terms of Sections 79(1)(c) and 79(1)(d) of the Act, the Commission would have the power to regulate the inter-State transmission of electricity as also to determine tariff for inter- State transmission of electricity. In terms of Section 79(1)(e) of the Act, the Central Commission can issue licenses to persons to function as transmission licensees and electricity traders with respect to their inter- State operations. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.5.<span style=\"white-space:pre\">	</span>The State Commission is defined under Section 2(64) of the Act of 2003 to mean the State Electricity Regulatory Commission constituted under sub-Section (1) of Section 82 and includes a Joint Commission constituted under sub-Section (1) of Section 83.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.10.<span style=\"white-space:pre\">	</span>Thus, from a comparison of Section 79 of the Act and Section 86 of the Act, it is clear that the jurisdiction of a State Commission is limited to the transmission of electricity etc., within the State and the State Commission has the necessary powers only as regards aspects within the State i.e., intra-State. Whereas under Section 79, the powers of the Central Commission are relating to inter-State transmission, determination of tariff, functioning of a licensee etc. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.11.<span style=\"white-space:pre\">	</span>It is therefore clear that whenever an aspect inter-State arises, it is the Central Commission, which has the power and the powers of the State Commission is restricted only to intra- State. If electricity is transmitted from one State to the other, if generation is from one State and consumption is another State or any other permutation of like kind, then the said transmission would amount to inter-State transmission which would come within the purview of only the Central Commission and not under the State Commission. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.12.<span style=\"white-space:pre\">	</span>Section 83 of the Act of 2003 contemplates the establishment of Joint Commission by way of an agreement between two States or by Central Government for one or more union Territories. If such a Joint Commission is created, in my considered opinion, Joint Commission would have the powers in the State and/or the Union Territories for which it is created. In the present case, there is no Joint Commission which has been created. Therefore, the same would not arise for consideration. It is for the concerned authorities to create such a Joint Commission to address these kind of grievances at the earliest. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.13.<span style=\"white-space:pre\">	</span>The decisions in Indo Rama Synthetic Ltd.1, Kamachi Sponge & Power Corporation Ltd.2 and Sal Steel3 are all matters which were related to intra state transmission and the regulation and/or schedule which had been formulated by the respective SLDC was within the State and all the said decisions referred to on the obligation of SLDC as also the responsibility of the SLDC for optimum scheduling and dispatch of electricity was within a State. None of those decisions are relating to inter-state transmission. Thus, those decisions would not have any bearing in the present matter. Since here the transmission is inter- state. There cannot be any dispute about a SLDC having jurisdiction intra-state. SLDC would not have jurisdiction over transmission inter-state. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.14.<span style=\"white-space:pre\">	</span>Hence, I answer Points No.1 and 2 by holding that the KERC would have power to regulate the transmission and distribution of power on all intra-State lines. The CERC would not have power to regulate transmission and distribution intra-State, which can only be regulated by the State Commission. As a corollary the CERC would have power to regulate the transmission and distribution of power on all inter-State lines. The KERC would not have power to regulate transmission and distribution inter- State, which can only be regulated by the Central Commission.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>Answer to Point No.3: Whether the disputes in the present matter could be raised under Section 79 (1)(f) of the Electricity Act? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.1.<span style=\"white-space:pre\">	</span>Section 79(1)(f) of the Act has been reproduced hereinabove. The disputes, if any in respect of Clause (a) to (d) of sub-Section (1) of Section 79 can be adjudicated by the Central Commission. Similar adjudication powers has been vested with the State Commission under Section 86, in terms of Section 86 (1)(f) of the Act the power to adjudicate the dispute between the licensees and generating companies is vested with the State Commission which also has the power to refer the dispute to arbitration. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.2.<span style=\"white-space:pre\">	</span>Section 86 (1)(f) of the Act has to be read in the context of Section 86 of the Act inasmuch as the licenses which are issued under Section 86(1)(d) of the Act is only to persons operating within the respective State where the Commission is located. Thus, by necessary implications the powers under Section 86(1)(f) of the Act which can be exercised by the State Commission would obviously be restricted to any disputes between the licensing and generating companies within that State for transmission and distribution of electricity and would not extend to intra-State transmission and distribution, which is covered under clauses (a) to (d) of Section 79(1) of the Act of 2003.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 14.3.<span style=\"white-space:pre\">	</span>It is therefore clear that the CERC would have the powers under Section 79(1)(f) as regards inter-State transmission and distribution and the State Commission would have the jurisdiction over intra-State transmission and distribution issues. As a corollary, the State Commission will not have power over inter- State and likewise, the CERC would not have power over intra-State disputes relating to generation, transmission and distribution. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.4.<span style=\"white-space:pre\">	</span>The decisions in Godawari Power & Ispat Limited6, Tata Power Company Ltd7, Hukam Chand8, Shalimar Chemical Works Ltd.,9, Indraprasth Gas Ltd,10 Power Machines India Ltd.11 and Bhuwalka Steel Industries Ltd.,12 are all relating to delegation of authority, excessive delegation and/or the delegate acting beyond or contrary to the delegated power. The contention on that basis is that the CERC cannot usurp the power of KERC and adjudicate the dispute between SLDC and a power producer. In my considered opinion, the said decisions would not be applicable to the present case since in the present case we are dealing with inter-state power transmission, which is beyond the purview of the SLDC. The SLDC being empowered to deal with intra-state as a corollary the SLDC would not be empowered to schedule power which is to be transmitted inter-state. If that be so, the SLDC not having any jurisdiction, the State Commission viz., KERC would also have no jurisdiction to decide these disputes. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">14.5.<span style=\"white-space:pre\">	</span>The present dispute is one relating to inter- State transmission. Admittedly, the power/electricity is produced in the State of Karnataka and distributed outside the State of Karnataka. Therefore, in my considered opinion, in terms of Section 79(1)(f) of the Act, the CERC would have the powers to adjudicate the issues relating to inter-State transmission and distribution of electricity.<br></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>Answer to Point No.4: Whether SLDC can regulate inter-State electricity transmission by exercising its statutory powers?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15.4.<span style=\"white-space:pre\">	</span>Reading of sub-Sections (1) and (2) of Section 33 would indicate that the SLDC has the power to exercise such supervision and control over the intra-state transmission system but directions can only be issued insofar as the operations of power system in that State. 15.5.<span style=\"white-space:pre\">	</span>This would indicate that no power has been vested with the SLDC to issue any directions insofar as power dispatched to another State or on an inter-State activity. The functions under Section 32 of the Act and power to issue directions under Section 33 of the Act by the SLDC is only restricted to intra–State and does not extend to inter-State transmission. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15.6.<span style=\"white-space:pre\">	</span>Thus, SLDC cannot regulate inter-State electricity transmission by exercising its statutory powers under the Act. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15.7.<span style=\"white-space:pre\">	</span>It is also required to be taken note of that in terms of Section 31 of the Act, a separate company is required to be established by the State. The Act having come into force in the year 2003, despite 20 years having lapsed there from, no action in this regard has been taken and the SLDC has been established under the State Transmission Utility. In my considered opinion, there are bound to be certain conflicts between the State Transmission Utility and the functioning of the SLDC. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15.8.<span style=\"white-space:pre\">	</span>It is but required that the State establishes a separate entity for SLDC who can function independent of the State Transmission Utility at the earliest at any rate within a period of 6 weeks from the date of receipt of copy of this order. The Registrar General is directed to forward a copy of this order to the Chief Secretary, Government of Karnataka for doing the needful.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>Answer to Point No.5: Whether there is a conflict of interest between KPTCL and SLDC?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16.1.<span style=\"white-space:pre\">	</span>KPTCL – petitioner No.1 is the State Transmission Utility who is incharge of the transmission lines within the State and is defined under sub-Section (67) of Section 2 of the Act to be the Board or the Government Company specified by the State under sub- Section (1) of Section 39. The function of the State Transmission Utility in terms of Section 39 of the Act is to undertake transmission of electricity through intra-State Transmission System, coordinate with the Central Transmission Utility, State Governments etc., to ensure development of an efficient, coordinated and economical system of intra-State transmission lines, provide non-discriminatory open access to its transmission system etc. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16.2.<span style=\"white-space:pre\">	</span>In terms of sub-Section (1) of Section 31 of the Act, SLDC is required to be established in terms of sub-Section (2) of Section 31, which shall be operated by a Government Company and/or any authority or Corporation established by the State and until such establishment, SLDC shall operate under the State Transmission Utility. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16.3.<span style=\"white-space:pre\">	</span>The functions of the SLDC and the State Transmission Utility are such that SLDC could issue directions insofar as a conflict or a dispute which arises between the State Transmission utility on the one hand and the transmission licensees, distribution licensees, generating companies on the other. The SLDC being authorized to issue directions for compliances in terms of Section 33 of the Act, I am of the considered opinion that there is a possibility of the transmission utility using the powers under Section 33 of the Act in order to achieve its own purposes. There being conflict, the mandate under sub-Section (2) of Section 31 of the Act is required to be followed by establishing SLDC under a separate Government Company or authority or Corporation. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>Answer to Point No.6: Whether the order passed by CERC in Petition No.124/MP/2011 suffers from any illegality requiring interference at the hands of this Court? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17.1.<span style=\"white-space:pre\">	</span>In view of my finding in respect of the above questions, SLDC not being empowered to issue any directions or add any clause in an agreement, when the generating companies requests for license, SLDC not being authorized to issue any directions as regards inter-State transmission, the present case being one of inter-State, the condition imposed by the SLDC is bad in law and not authorized. The dispute between the parties relating to inter-State generation, transmission and distribution, it is only the CERC who has the power to decide the matter and not the KERC. The CERC having taken into consideration all the relevant aspects, I do not find any infirmity in the said order. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>Answer to Point No.7: Whether the petitioners would have to be relegated to an appeal before the Appellate Tribunal in lieu of Section 111 of the Electricity Act on the account of the decision of this Court in R.K.POWERGEN PRIVATE LIMITED case as also the decision of the Hon’ble Apex Court in the case of NTPC Ltd? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.1.<span style=\"white-space:pre\">	</span>Any order passed by the State Commission or the Central Commission is required to be appealed before the Appellate Tribunal. Considering that this matter has been pending from the year 2012 and has been taken up on merits and all contentions which have been raised are considered, the relegation of the appellant to the Appellate Tribunal after a period of 11 years would in my considered opinion amount to travesty of justice. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>Answer to Point No.8: What order? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19.1.  The Writ Petition stands dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6a33b6fcd66f2326c412f0fba26df744.JPG', 'bed2c2314e8019a247958803205c9665.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-05', 1, '', '', '2023-06-04 18:39:51', '2023-06-05 06:28:21'),
(3031, 'sTJ3ChfR5ff0wGJvm5AqyX53n', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prosecution for the offence punishable under Section 505(2), IPC, ‘Statements creating or promoting enmity, hatred or ill-will between classes’ without prior sanction from the Government is illegal. Karnataka High Court ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M Mallesh Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 200381 of 2023 decided on 16 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S Rachaiah.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2.<span style=\"white-space: pre;\">	</span>A complaint came to be lodged against the accused for having posted the comment about the Hindu Goddess ‘Chamundeshwari’. A case came to be registered in Crime No.145/2021 for the offence punishable under Section 505(2) of IPC. After investigation, a charge sheet came to be filed against the accused. The Trial Court took cognizance on 03.01.2022 for the offence punishable under Section 505(2) of IPC.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>In order to appreciate the rival contentions of the parties, it is necessary to extract Section 196(1A) of Cr.P.C., which read thus: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“Section 196. [(1A) No Court shall take cognizance of– (a)<span style=\"white-space: pre;\">	</span>any offence punishable under section 153B or sub-section (2) or sub-section (3) of section 505 of the Indian Penal Code (45 of 1860), or (b)<span style=\"white-space: pre;\">	</span>a criminal conspiracy to commit such offence, except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.]” </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>On careful reading of the above said provision, it is clear that, before taking cognizance, a sanction, as stated above, is required.   In the absence of such sanction, the Court cannot take cognizance. In case if the Court takes cognizance without properly appreciating the facts and law, the same is held to be illegal and unsustainable under law. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>In the present case, on perusal of the entire charge sheet and also its averments, nowhere it is stated that such mandatory requirement was complied / obtained by the investigating officer before filing of the charge sheet. Therefore, it is appropriate to quash the proceedings for not having obtained sanction from the competent authority.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> i)<span style=\"white-space: pre;\">	</span>The criminal petition is allowed.</b></font><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b69c722654068a26de173a458e61df71.jpeg', '7936a588008f41b0333b798ed1490cf5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-05', 1, '', '', '2023-06-04 19:27:32', '2023-06-05 10:19:14'),
(3032, '5aL1wVAih0JAO3SvSME0BQ9Fc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Police adding cognizable offence along with non-cognizable offence in FIR and later dropping cognizable offence from the chargesheet. The same will not cure mandatory requirement of Sanction under 155 (2) of Cr.P.C. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rajesh R Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 2126 of 2023 decided on 18 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Natarajan.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>This petition is filed by the petitioner/accused ..us 482 of Cr.P.C for quashing the criminal proceedings in C.C.No.361/2021 arising out of Crime No.12/2020 registered by Tumkur police station and charge sheeted for the offence punishable under Section 79 and 80 of Karnataka Police Act (herein after referred to as \'K.P. Act\') pending on the file of Principal Civil Judge and JMFC, Tumkur.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space:pre\">	</span>Having heard the arguments perusal of the records, which reveals ofcourse there is no complaint from any of the public against the petitioner for having cheated any of the persons for receiving money it is said to be a cricket betting played by the accused in a room.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>The police have filed charge sheet for the offence under section 79 and 80 of K.P. Act which is non cognizble offence where the police are required to obtain the permission under section 155 (2) of Cr.P.C where the informant shall appear before the Magistrate under section 155 (1) of Cr.P.C but without obtaining permission for non-cognizable offence, the police registered the case for the non cognizable offence and purposely added section 420 of IPC in order to avoid for seeking permission and later they drooped 420 of IPC, which reveals the police have violated the provision of 155 of Cr.P.C while registering and filing the charge sheet. Therefore FIR registered against the petitioner is not sustainable under the law.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 8.<span style=\"white-space:pre\">	</span>This court in various cases including the judgment of coordinate bench in Vaggeppa Gurulinga Jangaligi (Jangalagi) vs. The State of Karnataka, Through PSI, Kagwad Police Station, Belagavi reported in ILR 2020 KAR 630 and is of the view that permission under section 155 of Cr.P.C is required for registering FIR in non cognizable offences. Therefore, I am of the view, continuing the criminal proceedings against the petitioner is not sustainable under law. Hence, criminal proceedings required to be quashed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Accordingly, this petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5063a4c512d8bb3fcce4efb9361d98e2.JPG', '304008ae05cee526f95fd571653776a7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-07', 1, '', '', '2023-06-05 12:54:10', '2023-06-07 06:29:49');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3033, 'FB4P55Ocv8Pykf3MJESmRQ8T3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Property Tax. Residential property used for running Advocate’s office cannot be assessed as commercial property if it falls within the exemption under Section 3 (1) (e) of Karnataka Shops and Establishments Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K K Thayamma Vs Commissioner and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 4606 of 2023 decided on 18 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The petitioner is a practising advocate who carries on her profession in the ground floor of her house measuring 20 x 22 ft. The petitioner has been making payment of property tax in respect thereof on the basis of the same being residential premises, however, in all fairness, the petitioner taking into account that the professional office was being run in the premises is making payment of electricity dues as per commercial rate. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>It is based on the said payment of electricity dues at commercial rates that the respondent-corporation has issued notices under Annexure-A to F calling upon the petitioner to make payment of property tax by assessing the property as commercial property and not as a residential property. It is the said notices which are under challenge in this proceedings.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 4.<span style=\"white-space: pre;\">	</span>The short point that arises for determination by this court is, whether a residential property used for running an office of a professional like an advocates office could be assessed as a commercial property merely because an advocate office is run therein?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>The above point is no longer resintegra. The Hon’ble Apex Court in the case of V.Sasidharan -v- Peter and Karunakar and others1 by referring to the provisions of Kerala Shops and Commercial Establishments Act has held that an office of a lawyer or firm of lawyers is not a commercial establishment within the meaning of Section 2(4) of the said Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 6.<span style=\"white-space:pre\">	</span>In terms of Karnataka Shops and Establishments Act, 1961 apart from the definition of commercial establishment there is exemption in terms of Section 3(1) is carved out. Section 3 (1) reads as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>3.<span style=\"white-space:pre\">	</span>Exemptions.—(1)<span style=\"white-space:pre\">	</span>Nothing in this<span style=\"white-space:pre\">	</span>Act shall apply to,- 1 AIR 1984 SC 1700</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(a)<span style=\"white-space:pre\">	</span>offices of or under the Central or State Governments or local authorities, except commercial undertakings;</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(b)<span style=\"white-space:pre\">	</span>any railway service, water transport service, postal, telegraph or telephone service, any system of public conservancy or sanitation or any industry, business or undertaking which supplies power, light or water to the public;</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(c)<span style=\"white-space:pre\">	</span>railway dining cars;</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(d)<span style=\"white-space:pre\">	</span>establishments for the treatment or care of the sick, infirm, or the mentally unfit; (dd) establishments of the Food Corporation of India;</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(e)<span style=\"white-space:pre\">	</span>offices of legal practitioners and medical practitioners in which not more than three persons are employed;</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(f)<span style=\"white-space:pre\">	</span>offices of 1 [a banking company]1 ; 1. Substituted by Act 33 of 1982 w.e.f. 4.12.1982.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(g)<span style=\"white-space:pre\">	</span>any person employed about the business of any establishment mentioned in clauses (a) to (f) aforesaid;</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> (h)<span style=\"white-space:pre\">	</span>persons occupying positions of management in any establishment;</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> (i)<span style=\"white-space:pre\">	</span>persons whose work is inherently intermittent such as drivers, caretakers, watch and ward staff, or canvassers; and</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> (j)<span style=\"white-space:pre\">	</span>persons directly engaged in preparatory or complementary work, such as, clearing and forwarding clerks responsible for the despatch of goods. </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>A reading of clause (e) of Subsection (1) of Section 3 of the Act would indicate that nothing in the said Act would apply to the legal practitioners and medical practitioners. The contention of the petitioner is that the petitioner does not employ more than three employees. Thus, exemption under clause (e) of Subsection (1) of Section 3 of the Act would apply to the present case also and the decision rendered by the Hon’ble Apex Court in V.Sasidharan’s case would also be applicable.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>Apart from the above decision, this Court in its decision dated 4.02.2015 passed in the case of A.V.Gangadharappa -v- Bangalore Electricity Supply Company Limited.2 has also come to a categorical conclusion that a law professional or any other professional, Chartered Accountant profession or any business or trade within the meaning of profession and as such, the notices issued by the BESCOM calling upon the petitioner herein to make payment of electricity dues on commercial rate was quashed. A Bench of this Court in the case of M/s Singhvi Dev and Unni Chartered Accountants - v- the Regional Director, ESI Corporation and others3 has also held that the premises used by a Chartered Accountant or lawyer as office would not be a commercial establishment and as such, the notices issued under the Act were quashed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>Applying the said decisions to this facts and circumstances of the present case, admittedly the petitioner running advocates office in her own premises would come under the exemption carved out under clause (e) of Subsection (1) of Section 3 of the Act and therefore, the said office cannot be said to be a commercial establishment. If the same is not commercial establishment, the question of the same being levied with property tax at commercial rate </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space:pre\">	</span>The petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '31e4e65aa58f1d19d725b499ed9b2e2f.JPG', 'a907509fa78d9da9cb45b506d094895c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-07', 1, '', '', '2023-06-05 13:04:07', '2023-06-07 08:38:59'),
(3050, 'bmB1jR68P0TBxogvofl8tGrzV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'IBC cannot be compared with that of the Companies Act, 1956/2013. Distribution of assets under Section 53 subject to Section 36(4) of the IBC in case of liquidation of company under IBC is not unconstitutional. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Moser Baer Karamchari Union Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition (C) 421 of 2019 decided on May 2 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.R. Shah and Justice Sanjiv Khanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. By way of this writ petition under Article 32 of the Constitution of India, filed by the writ petitioner – Moser Baer Karamchari Union have prayed for an appropriate writ, direction or order striking down Section 327(7) of the Companies Act, 2013 (hereinafter referred to as “Act, 2013”) as arbitrary and violative of Article 21 of the Constitution of India.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>It is also prayed to issue an appropriate writ, direction or order in the nature of Mandamus so as to leave the statutory claims of the “workmen’s dues” out of the purview of waterfall mechanism under Section 53 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to either as “IBC” or “Code”).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>It is further prayed to issue an appropriate writ in the nature of Mandamus by giving a purposive interpretation to Section 53 of the IBC and pass necessary directions which will enable the petitioners to get their dues of 24 months released without any further delay. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1.1 By way of these writ petitions under Article 32 of the Constitution of India, the respective writ petitioners have prayed that Clause 19(a) of the Eleventh Schedule of the IBC pursuant Section 255 of the IBC, be declared as unreasonable and violative of Article 14 of the Constitution of India as Clause 19(a) of the Eleventh Schedule of the IBC inserts sub-section (7) in Section 327 of the Companies Act, 2013, which puts statutory bar on the application of Sections 326 and 327 of the Companies Act, 2013, to the liquidation proceedings under the IBC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>It is further prayed that sub-section (7) of Section 327 of the Companies Act, 2013, be declared as unreasonable and violative of Article 14 of the Constitution of India as sub-section (7) of Section 327 of the Companies Act, 2013, which was inserted in Section 327 of the Companies Act, 2013 pursuant to Section 255 and the Eleventh Schedule of the Insolvency and Bankruptcy Code, 2016, Act 31 of 2016, creates unreasonable classification for the distribution of legitimate dues of workmen in the event of liquidation of the Company under the IBC and liquidation of Company under the provisions of the Companies Act, 2013. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>It is also prayed that distribution of the workmen\'s due as envisaged under Section 53(1)(b)(i) of the IBC, be declared as unreasonable and violative of Article 14 of the Constitution of India, as Section 53(1)(b)(i) of the IBC limits the workmen\'s dues payable to workmen to twentyfour months only preceding the date of order of Liquidation and then rank the said workmen\'s dues equally with the secured creditors in the events such secured creditors has relinquished security in the manner set out in Section 52 of the IBC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>It is further prayed that settlement of Workmen Dues should be done in accordance with the reasonable principles laid down under Section 326 even in the event of liquidation under the IBC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. By way of this writ petition under Article 32 of the Constitution of India, the petitioner - union has sought for an appropriate writ, direction or order striking down Section 327(7) of the Companies Act, 2013 as arbitrary and violative of Article 21 of the Constitution of India. The petitioner has also sought for an appropriate direction so as to leave the statutory claims of the “workmen’s dues” out of the purview of waterfall mechanism under Section 53 of the Insolvency and Bankruptcy Code, 2016. As per Section 327(7), Sections 326 and 327 of the Act, 2013 shall not be applicable in the event of liquidation under the IBC. Sections 326 and 327 of the Act, 2013 provide for preferential payments in a winding up under the provisions of the Act, 2013. However, in view of the introduction of new regime under the IBC, in case of liquidation under IBC, distribution is to be made as per Section 53 of IBC. At this stage, it is required to be noted that IBC has been enacted w.e.f. 28.05.2016 and as per Section 53 of the IBC, the distribution of assets in case of liquidation under the IBC is required to be made.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In view of the enactment of IBC and Section 53 of the IBC, it necessitated to amend the Act, 2013. As per Sub-Section (7) of Section 327, Sections 326 and 327 shall not be applicable in the event of liquidation under the IBC. The object and purpose of amending the Act, 2013 and to exclude Sections 326 and 327 in the event of liquidation under the IBC seems to be that there may not be two different provisions with respect to winding up/liquidation of a company. Therefore, in view of the enactment of IBC, it necessitated to exclude the applicability of Sections 326 and 327 of the Act, 2013 which cannot be said to be arbitrary as contended on behalf of the petitioner.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6.1 At this stage, it is required to be noted that SubSection (7) of Section 327 of which the vires are under challenge, shall be applicable in case of liquidation of a company under the IBC. Meaning thereby, in case of liquidation of a company under IBC, the provisions of Section 53 of the IBC and other provisions of the IBC shall be applicable as the company is ordered to be liquidated or wound up under the provisions of IBC. Therefore, merely because under the earlier regime and in case of winding up of a company under the Act, 1956/2013, the dues of the workmen may have pari passu with that of the secured creditor, the petitioner cannot claim the same benefit in case of winding up/liquidation of the company under IBC. The parties shall be governed by the provisions of the IBC in case of liquidation of a company under the provisions of the IBC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6.2 Now so far as Section 53 of the IBC is concerned, it provides for distribution of the assets in case of liquidation of a company under IBC. As per Section 53(1)(b) the workmen’s dues for the period of twenty-four months preceding the liquidation commencement date shall rank equally between the workmen and the secured creditor in the event such secured creditor has relinquished security in the manner set out in Section 52. Therefore, workmen’s <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dues for the period of twenty-four months preceding the liquidation commencement date shall have pari passu with the dues of secured creditor. At this stage, it is required to be noted that as per Section 36(4) of IBC, all sums due to any workman or employee from the provident fund, the pension fund and the gratuity fund shall not be included in the liquidation estate assets and shall not be used for the recovery in the liquidation. Therefore, a conscious decision has been taken by the Parliament/Legislature in its wisdom to keep out of all sums due to any workman/employee from the provident fund, the pension fund and the gratuity fund from the liquidation estate assets [as per Section 36(4)] and that the workmen’s dues for the period of twenty-four months preceding the liquidation commencement date shall rank equally between the workmen’s dues to the said extent and the dues to the secured creditor. Therefore, the same cannot be said to be arbitrary and violative of Article 21 of the Constitution of India as contended on behalf of the petitioner. As per the settled position of law, IBC is a complete Code and the object and purpose of IBC is altogether different than that of the Act, 1956/2013. The IBC is a new insolvency mechanism, therefore, the provisions under the IBC cannot be compared with that </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the earlier regime, namely, the Companies Act, 1956/2013.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">6.3 At this stage, it is required to be noted that the issue with respect to the workman and the secured creditor being kept at equal footing under Section 53 of the IBC is only in a case wherein the secured creditor has relinquished its security and the same is the part of the stage of the liquidation pool.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. We have earlier referred to, in detail, the divergent opinions expressed while enacting the Code on the status of the workmen\'s dues and the hierarchy in which they should be placed. The waterfall mechanism now prescribed in the Code with reference to the workmen’s dues is a well-considered and thought-out decision. The waterfall mechanism and the hierarchy prescribed to the workmen’s dues should be seen in the overall objective of the Code, which is to explore whether the corporate <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">debtor can be revived so that jobs are not lost, the use of economic assets is maximised, and there is an effective legal framework which enhances the viability of credit in the hands of banks and financial institutions. The Code recognises the financial impact on secured creditors or financial institutions dealing with public money, as their economic health is equally important for the general public as well as the national economy. Unless there is economic growth and fresh investments in the industry, employment opportunities will not be available, which would in turn lead to economic woes, insolvencies and bankruptcies. These are all complex economic matters wherein various conflicting interests have to be balanced, and a holistic rather than a one-sided, approach is to be taken. Each opinion may have merit, but the court can hardly substitute its own wisdom or view for that of the legislature, especially when the enactment is the outcome of a thought-out and ruminated review on complex fiscal and commercial challenges facing the economy</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. As elucidated above, the Companies Act, 2013 does not deal with insolvency and bankruptcy when the companies are unable to pay their debts or the aspects relating to the revival and rehabilitation of the companies and their winding up if revival and rehabilitation is not possible. In principle, it cannot be doubted that the cases of revival or winding up of the company on the ground of insolvency and inability to pay debts are different from cases where companies are wound up under Section 271 of the Companies Act 2013. The two situations are not identical. Under Section 271 of the Companies Act, 2013, even a running and financially sound company can also be wound up for the reasons in clauses (a) to (e). The reasons and grounds for winding up under Section 271 of the Companies Act, 2013 are vastly different from the reasons and grounds for the revival and rehabilitation scheme as envisaged under the Code. The two enactments deal with two distinct situations and in our opinion, they cannot be equated when we examine whether there is discrimination or violation of Article 14 of the Constitution of India. For the revival and rehabilitation of the companies, certain sacrifices are required from all quarters, including the workmen. In case of insolvent companies, for the sake of survival and regeneration, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">everyone, including the secured creditors and the Central and State Government, are required to make sacrifices. The workmen also have a stake and benefit from the revival of the company, and therefore unless it is found that the sacrifices envisaged for the workmen, which certainly form a separate class, are onerous and burdensome so as to be manifestly unjust and arbitrary, we will not set aside the legislation, solely on the ground that some or marginal sacrifice is to be made by the workers. We would also reject the argument that to find out whether there was a violation of Article 14 of the Constitution of India or whether the right to life under Article 21 Constitution of India was infringed, we must word by word examine the waterfall mechanism envisaged under the Companies Act, 2013, where the company is wound up in terms of grounds (a) to (e) of Section 271 of the Companies Act, 2013; and the rights of the workmen when the insolvent company is sought to be revived, rehabilitated or wound up under the Code. The grounds and situations in the context of the objective and purpose of the two enactments are entirely different.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. We now turn to the difference in the waterfall mechanism provided in the Companies Act, 2013 and the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Code. As per Section 3246 of the Companies Act, 2013, all debts payable on a contingency, or all claims against the company, present or future, certain or contingent, ascertained or sounding only in damages, are admissible to proof against the company. A just estimate can be made so far as possible in respect of value of such debts or claims as may be subject to any contingency, damages, etc. and do not bear a certain value. Section 3267 of the Companies Act, 2013 deals with overriding </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">preferential payments which have to be paid in priority to all other debts. These include the workmen debts, and dues of the secured creditor where the secured creditor has realised the secured asset but could not realise the entire amount, or the amount of workmen’s portion in his security payable under the law, whichever is less, pari passu with the workmen’s dues. Thus, this balances and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">equates the rights of the secured creditor to realise the secured asset, but in case the secured creditor is not able to realise the full amount or has paid an amount to the workmen if payable under the law, whichever is less, these dues rank pari passu with the workmen’s dues. Explanation to Section 326 of the Companies Act, 2013 defines ‘workmen’, which means employees within the meaning of Section 2(s) of the Industrial Disputes Act, 1947; and the expressions “workmen’s dues”; and “workmen’s portion”, which expressions are terms of the Companies Act, 2013 specially used in clause (b) of subsection (1) to Section 326 of the Companies Act, 2013. The workmen’s portion in relation to the security of any secured creditor of a company means the amount which bears to the value of security, the same proportion as the amount of workmen’s dues bears to the aggregate of the amount of workmen’s dues and the amount of debts due to the secured creditors. The illustration clarifies the formula by way of an hypothetical case, where the secured creditors and workmen’s dues are both Rs.1 lakh. The amount of the debts due from the company to the secured creditors is hypothetically taken as Rs. 3 lakhs. Accordingly, the aggregate amount due towards workmen’s dues and the amount of debts due to the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">secured creditors is Rs. 4 lakhs. In this background, when the value of the security of the secured creditors is Rs. 1 lakh, one-fourth of the value of the security, i.e. Rs.25,000/- would be the workmen’s portion. To this extent, there is no difficulty or dispute. As noticed below there is hardly any difference in the said hierarchy and the waterfall mechanism under the Code.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. However, the proviso to sub-section (1) to Section 326 of the Companies Act, 2013 states that in case of winding up of the company, the sums referred to in subclauses (i) and (ii) to clause (b) of the Explanation to Section 326 of the Companies Act, 2013, which are payable for a period of two years preceding the winding up order or such other period as may be prescribed, shall be paid in priority to all other debts, including debts due to secured creditors. This payment is to be made within a period of thirty days from the sale of assets and shall be subject to such charge over the security of the secured creditors. Sub-clause (i) to clause (b) of the Explanation to Section 326 of the Companies Act, 2013 refers to all wages or salary, including wages payable for time or piece work and salary earned wholly or in part, etc. under any provisions of the Industrial Disputes Act, 1947. Subclause (ii) to clause (b) of the Explanation to Section 326 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the Companies Act, 2013 deals with all accrued holiday remuneration payable to any workmen or, in the case of his death, to any other person in his right on termination of his employment, etc. Sub-clauses (iii) and (iv) of clause (b) of the Explanation to Section 326 of the Companies Act, 2013 are excluded from the proviso. These subclauses deal with liability of compensation under the Workmen’s Compensation Act, 1923 in respect of death or disablement of the workmen or all sums due to any workman from the provident fund, the pension fund, the gratuity fund or any other fund of the welfare of the workmen8 . What is clear from the provision is that the proviso applies in case of winding up of a company to the sums referred to in sub-clauses (i) and (ii) of clause (b) of the Explanation to Section 326 of the Companies Act, 2013 which are payable for a period of two years preceding the winding up order or such other period as may be prescribed. We are not informed that a different period has been prescribed and, therefore, the sums referred to in sub-clauses (i) and (ii) to clause (b) of the Explanation to Section 326 of the Companies Act, 2013 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">are payable for two years preceding the winding up order. Thus, this period of two years is with reference to the date of the winding up order, and not with reference to the date earlier in point of time, that is, when a winding up petition is filed. This restricts the period for which payment under sub-clauses (i) and (ii) to clause (b) of the Explanation to Section 326 of the Companies Act, 2013 would apply. Entire unpaid dues are not covered by the proviso to subsection (1) to Section 326 of the Companies Act, 2013.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. We now turn our attention to Section 53 of the Code which begins with a non-obstante clause and states that notwithstanding anything to the contrary contained in any law enacted by the Parliament or any State Legislature for the time being in force, the proceeds from the sale of liquidation assets shall be distributed in the order of priority, which is stipulated, and within such period and such manner as may be specified. The consequence of sub-section (1) to Section 53 of the Code is that it will override the rights of parties, including the secured creditor, when the said provision applies. Section 53 of the Code is the complete and comprehensive code which ensures collection of assets and then provides the manner in which the creditors are to be paid. Even the rights of the secured creditor falling under Section 53 of the Code to enforce, realise, settle, compromise or deal with the secured assets as applicable to the security interest are diluted and compromised.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15.1 Clause (a) to sub-section (1) to Section 53 deals with insolvency resolution process costs and the liquidation costs which are to be paid in full. No grievance or issue can be raised in respect of the said clause. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Clause (b) to sub-section (1) to Section 53 states that the debts due in the form of workmen’s dues for a period of twenty four months preceding the liquidation commencement date and the debts owed to the secured creditor in the event such secured creditor has relinquished security in the manner set out in Section 52 of the Code shall rank equally between and amongst the workmen and the secured creditors. The Explanation to Section 53 of the Code states that ‘workmen’s dues’ shall have the same meaning as assigned to it in Section 326 of the Companies Act, 2013. In other words, Explanation to Section 326 of the Companies Act, 2013 has been incorporated and applies to the waterfall mechanism as prescribed in clause (b) to sub-section (1) to Section 53 of the Code. What is significant here is that under clause (b) to sub-section (1) to Section 53 of the Code, the workmen’s dues are for the period of twenty four months preceding the liquidation commencement date. The liquidation commencement date, as defined in terms of sub-section (17) to Section 5 of the Code, is much earlier in point of time and need not coincide with the date of winding up. This is in the interest of the workmen. Clause (i) of Explanation to Section 53 of the Code states that where the distribution of proceeds in respect of class of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">recipients that rank equally, each of the debts would be paid either in full or would be paid in equal proportion within the same class of recipients, if the proceeds are insufficient to meet the debts in full. Ex facie, the clause is very just and fair. It is to be noted that the wages and unpaid dues owed to employees other than the workmen fall in clause (c), which is below clause (b) to sub-section (1) to Section 53 of the Code. They are to be paid wages and unpaid dues only for a period of twelve months preceding the liquidation commencement date, and that too only if surplus funds are available after making payment in terms of clause (a) and (b) of sub-section (1) to Section 53 of the Code. Clause (d) of sub-section (1) to Section 53 of the Code relates to financial debts owed to unsecured creditors. The amounts due to the Central Government and the State Government, etc., and the debts owed to a secured creditor for any amount that remains unpaid following the enforcement of security interest, have been clubbed together in clause (e) of subsection (1) to Section 53 of the Code, and have to be ranked equally between and among both of them. The remaining debts and dues fall in clause (f) of sub-section (1) to Section 53 of the Code. Preference shareholders fall under clause (g) of sub-section (1) to Section 53 of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Code, and equity shareholders or partners fall under clause (h) of sub-section (1) to Section 53 of the Code. Sub-section (2) to Section 53 of the Code states that any contractual arrangements between recipients under subsection (1) with equal ranking, if disrupting the order of priority under the said sub-section will be disregarded by the liquidator.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. The waterfall mechanism is based on a structured mathematical formula, and the hierarchy is created in terms of payment of debts in order of priority with several qualifications, striking down any one of the provisions or rearranging the hierarchy in the waterfall mechanism may lead to several trips and disrupt the working of the equilibrium as a whole and stasis, resulting in instability. Every change in the waterfall mechanism is bound to lead to cascading effects on the balance of rights and interests of the secured creditors, operational creditors and even the Central and State Governments. Depending upon the facts, in some cases, the waterfall mechanism in the Code may be more beneficial than the hierarchy provided under Section 326 of the Companies Act, 2013 and vice-versa. Therefore, we hesitate and do not accept the arguments of the petitioners.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. The Code is based on the organic evolution of law and is a product of an extensive consultative process to meet the requirements of the Code governing liquidation. It introduced a comprehensive and time-bound framework to maximise the value of assets of all persons and balance the interest of the stakeholders. The guiding principle for the Code in setting the priority of payments in liquidation was to bring the practices in India in line with global practices. In the waterfall mechanism, after the costs of the insolvency resolution process and liquidation, secured creditors share the highest priority along with a defined period of dues of the workmen. The unpaid dues of the workmen are adequately and significantly protected in line with the objectives sought to be achieved by the Code and in terms of the waterfall mechanism prescribed by Section 53 of the Code. In either case of relinquishment or non-relinquishment of the security by the secured creditor, the interests of workmen are protected under the Code. In fact, the secured creditors are taking significant hair-cut and workmen are being compensated on an equitable basis in a just and proper manner as per Section 53 of the Code. The Code balances the rights of the secured creditors, who are financial institutions in which the general public has invested money, and also ensures that the economic activity and revival of a viable company is not hindered because it has suffered or fallen into a financial crisis. The Code focuses on bringing additional gains to both the economy and the exchequer through efficiency enhancement and consequent greater value capture. In economic matters, a wider latitude is given to the lawmaker and the Court allows for experimentation in such legislations based on practical experiences and other problems seen by the law-makers. In a challenge to such legislation, the Court does not adopt a doctrinaire approach. Some sacrifices have to be always made for the greater good, and unless such sacrifices are prima facie apparent and ex facie harsh and unequitable as to classify as manifestly arbitrary, these would be interfered with by the court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. In view of the above and for the reasons stated above and as sub-section (7) of Section 327 of the Act, 2013 provides that Sections 326 and 327 of the Act, 2013 shall not be applicable in the event of liquidation under the IBC, which has been necessitated in view of the enactment of IBC and it applies with respect to the liquidation of a company under the IBC, Section 327(7) of the Act, 2013 cannot be said to be arbitrary and/or violative of Article 21 of the Constitution of India. In case of the liquidation of a company under the IBC, the distribution of the assets shall have to be made as per Section 53 of the IBC subject to Section 36(4) of the IBC, in case of liquidation of company under IBC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. In view of the above and for the reasons stated above, the writ petition(s) lack merits and the same deserve to be dismissed and are accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pending applications, if any, also stand disposed of.</b></span></p>', '0f27290e054a3438fab104eed8b50a9c.jpeg', '625d0df610f0302736f53480712c8608.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-09', 1, '', '', '2023-06-08 14:59:35', '2023-06-09 06:32:42');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3051, 'TlamgjTYCh5aMzXONxW760rH6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prevention of Corruption Act. Giving effect to the orders of the superior officer/authority is part of official duty and cannot be construed as misconduct. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shobitha R Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 24073 of 2022 decided on 1 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">Petitioner, a Civil Servant working in the cadre of Tahsildar-Grade I is invoking the writ jurisdiction of this Court for assailing the order dated 28.11.2022 issued by the first respondent-State at Annexure-A, whereby an inquiry having been constituted u/s.17A of the Prevention of Corruption Act, 1988, inter alia against the petitioner, matter is placed at the hands of Addl. Director General of Police, Lokayukta. Learned counsel for the petitioner argues that, the act of his client in giving effect to the orders of the Committee for Regularization of Unauthorised Occupancy would not amount to misconduct, since he discharges the statutory obligation. He also falters the impugned order on the ground that it is not a speaking order.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter for the following reasons:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space: pre;\">	</span>During the period between October 2019 and July 2021, petitioner was working in the office concerned; the claims for regularization of unauthorized occupancy in respect of subject lands were already processed by the Statutory Committee and proceedings were concluded u/s.94-A (6) of the Karnataka Land Revenue Act, 1964. What the petitioner has done is, only giving effect to the orders of regularization, by issuing saguvali chits. In law, the Tahsildar being the ex-officio Secretary of the Committee, has no option than to issue the saguvali chits in terms of the orders. Section 96-A(6)(a) of the 1964 Act begins with a non obstante clause and employs the word ‘shall’ implying a mandate. It has the following text: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><i><b><font face=\"Calibri, sans-serif\">“Not withstanding anything contained in the preceeding sub-section (a) the Tahsildar concerned shall issue the order of grant of land, on the recommendations of the Committee or Addl. Committee as the case may be, if any and issue the saguvali chit”.</font><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Rule 108-D (3) of the Karnataka Land Grant Rules, 1969 also states the same. The above section of the Act and this Rule having been examined in MAHADEV vs. STATE, (2017) 1 KANT LJ 256, a Co-ordinate Bench has held that the Tahsildar has to abide by the recommendation of the Committee and he cannot disobey the same. This aspect of the matter having not been adverted to by the Government, there is a legal lacuna that goes to root of the matter.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (ii)<span style=\"white-space: pre;\">	</span>Learned counsel for the petitioner is justified in pointing out the cryptic nature of the impugned order and in branding it as ‘not a speaking order’. Enquiry of the kind is a serious matter since it touches the discharge of public duties by the civil servants who otherwise need to be protected from the whimsical actions of the authorities. The impugned order does not show due application of mind to the relevant material to which the Government had access. In such cases, the orders of the kind are liable to be set at naught. This view gains support from a decision of Co-ordinate Bench in W.P.No.8905/2022 (S- Res) between Smt. Shreeroopa vs. State & others disposed off on 13.07.2022. On that count too, there is an added legal infirmity. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In the above circumstances, this petition succeeds; a Writ of Certiorari issues quashing the impugned order so far as the petitioner is concerned. Costs made easy.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6e8effe123ce25846be84b107132a2c6.JPG', '05d63e14130f49f3dd048efa1cb5d4d9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-09', 1, '', '', '2023-06-08 15:04:42', '2023-06-09 08:26:15'),
(3052, 'xJU9aqRJYJIvhB1znFjqpTVhk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Microbreweries also fall under the Karnataka Excise (Brewery) Rules and are entitled for refund/adjustment of unutilised excise duty and additional excise duty. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Craft Breweries Association of India and others Vs The Principal Secretary to Govt and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 11772 of 2020 decided on 3 September 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petitioner No.1 is an Association having its registered office in the given address and the purpose and object of petitioner No.1 is to safeguard the interests of various microbreweries spread across the State and to aid redressal of any grievance of its members.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 2.<span style=\"white-space: pre;\">	</span>Petitioner Nos.2 to 27 are members of petitioner No.1-Association and each of the petitioners is operating and managing their own microbrewery. Petitioner Nos.2 to 27 have paid license fee, advance fee and additional excise duty for the year 2019-2020 as required under Rule 22 of the Karnataka Excise (Brewery) Amendment Rules, 2010.   In view of COVID-19 pandemic, Central Government by its Notification dated 24-3-2020 initially declared lockdown for twenty-one days and it was periodically extended, as a result of which, the microbreweries were not able to open their establishments to carry on business under the respective licenses. In view of COVID-19 pandemic, the petitioners could not carry on business for nine months out of the permissible twelve months excise period. Hence, the petitioners were not able to turn out production on their annual installed capacity for which the entire excise duty had been paid. The petitioners’ grievance is that they are entitled for refund of excess amount paid or the same may be adjusted towards the duty on subsequent issues as prescribed under Rule 23 of the Karnataka Excise (Brewery) Rules, 1967. Hence, petitioner No.1-Association sought for unutilised excise duty and additional excise duty for excise period 2019-2020 to be adjusted for the excise year 2020- 2021. On 11-5-2020, petitioner No.1 made a representation to the authority concern seeking permission to sell beer as take away to customers in glass, ceramic and stainless steel containers and by communication dated 12-5-2020, respondent No.2 permitted the sale of beer produced in microbreweries as takeaway in glass, ceramic and stainless steel containers upon payment of additional excise duty.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>The Karnataka Excise Act, 1965, provides for a uniform law relating to the production, manufacture, possession, import, export, transport, purchase and sale of liquor and the levy of duties of excise thereon in the State of Karnataka. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>Sub-section 1 of Section 22 of the Karnataka Excise Act, 1965, specifies that an excise duty at such rate or rates as the State Government may prescribe, shall be levied on any excisable article manufactured or produced in the State under any licence or permit granted under this Act. Sub- section 2 of Section 22 of the Karnataka Excise Act, 1965, specifies that a countervailing duty at such rate or rates as the State Government, may prescribe shall be levied on any excisable article manufactured or produced in India outside the State and imported into the State under a licence or permit granted under this Act. Section 23 of the Karnataka Excise Act, 1965, deals with the ways of levying such duties. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>Rule 22 of the Karnataka Excise (Brewery) Rules, 1967, specifies the duty on all the beer from the brewery for the purpose of consumption shall be paid at such rate as may be prescribed by the Government from time to time, into the Government Treasury. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>Rule 23 of the Karnataka Excise (Brewery) Rules, 1967, specifies that if it is found that the brewer has paid any excess amount, he may claim its refund and if on verification his claim is found to be correct, the amount shall be refunded or adjusted towards the duty on any subsequent issues. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>The Karnataka Excise (Brewery) Rules, 1967, was amended by the Karnataka Excise (Brewery) (Amendment) Rules, 2010, wherein Rule 2 Clause (o1) defines the term microbrewery, Rule 27A deals with the grant of license to microbrewery, insertion of Form No.4 and 5 and conditions thereto (Condition No.10 to Form No.5 mandates the payment of the license fee and excise duty as specified is to be paid in advance). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space: pre;\">	</span>Vide Notification dated 7-1-2011, the Karnataka Excise (Excise Duties and Fees) Rules, 1968, was amended and certain Rules to meet the requirement of microbreweries were inserted. Rule 2(1)(A) & Rule 2(AAA) of the said Rules mandates the payment of the excise duty and additional excise Duty to be paid in advance. Imposition of such excise duty and advance excise duty is on a notional basis. Under these Rules, the licensee is liable to pay license fee and excise duty both in advance. License fee is calculated at a sum of Rs.2,30,000/- per year. The excise duty is calculated at 50% of annual installed capacity @ Rs.10/- per bulk liter. Similarly, additional excise duty is calculated at 50% of annual installed capacity @ Rs.25/- per bulk liter. In all, excise duty payable is Rs.35/- per bulk liter. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>The petitioners have paid 50% of the annual installed capacity at the rate of Rs.35/- per bulk liter for the excise period 2019-2020. In view of COVID-19 pandemic, the entire country was under lockdown and it was extended from time to time. The petitioners submitted representations with respondent No.2 so as to bring to its notice that the petitioners were not in a position to produce or sell 50% of annual installed capacity and sought for refund or adjustment of the same to subsequent issues.   However, respondent No.2 without considering the same has issued demand notice. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>An amendment was brought to Rule 2 and 27-A of the Karnataka Excise (Brewery) Rules, 1967 substituting the term \"Microbrewery\" and granting of licence for microbrewery. 2(1)A and 2AAA of the Rules specify for advance payment of tax. In compliance with the same the petitioners paid the advance excise duty of their anticipated annual capacity for the year 2020-2021. In wake of covid-19 pandemic, when all the establishments were closed for several months, the petitioners could not turnover the desired optimum capacity of the establishment and made representation to the respondent No.2 for the refund of the excess duty paid under Rule 23 of the Rules. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">16.<span style=\"white-space: pre;\">	</span>The Literal rule of interpretation of the Rules makes it crystal clear that microbrewery does fall under Karnataka Excise (Brewery) Rules and there is no separate legislation under which the microbrewery is governed. Having brought the term \"microbrewery\" under the Rules by way of an amendment, it has become an integral part of the Rules and does not isolate itself from the Rules.   Hence, the Rule 23 of the Rules is also applicable to the microbreweries.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space: pre;\">	</span>The petitioners, who are having license to operate micro breweries, are similarly situated to that of the persons, who are possessing license to operate breweries, and the petitioners are also entitled for refund under Rule 23 of the Rules, 1967 which would otherwise be discriminatory and violative of Article 14 of the Constitution of India. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">19.<span style=\"white-space: pre;\">	</span>In view of the preceding analysis, the petitioners are entitled for refund of unutilised excise duty and additional excise duty for excise period 2019-2020 or to be adjusted for the excise year 2020-2021 as specified under Rule 23 of the Rules and the impugned demand notices are not sustainable in law.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i)<span style=\"white-space: pre;\">	</span>Writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0fe77ce128fb695a177026d22195af8e.jpeg', '11e6b7bef6f960340efac6257a42992b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-09', 1, '', '', '2023-06-08 16:22:51', '2023-06-09 10:21:06'),
(3053, 'xmiBHUinshgqpSH5OT6bB1XDT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When Civil Court has already dismissed suit for specific performance of sale agreement, the Registrar cannot order registration of the agreement under the Registration Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vasudevachar and others Vs The District Registrar and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 48476 of 2013 decided on 29 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.S. Hemalekha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>It is stated that the petitioners are the absolute owners of 2 acres 23 guntas of the petition property situated at Bannimangala Village, Kundana Hobli, Devanahalli Taluk, Bangalore Rural District. It is stated in the petition that, respondent No.3 has alleged that the petitioners have executed an agreement of sale dated 09.11.1998 in favour of respondent No.3 agreeing to sell the suit property for a valuable consideration of Rs.1,30,000/- and as an earnest money, a sum of Rs.1,15,000/- was received by the petitioners herein. It is further stated that, respondent No.3 in pursuance of the agreement, a sale deed dated 06.05.2002 was also prepared on adequate stamp papers and at his request, petitioner Nos.1 to 6 affixed their signatures on the sale deed. Since petitioner No.7 was a minor as on the date of the sale deed, petitioner No.1 has signed the sale deed as father and natural guardian of petitioner No.7. It is further stated that respondent No.3 presented the sale deed before respondent No.2 on 21.08.2002 for registration and the petitioners did not appear on the said date before respondent No.2. The matter stood thus, respondent No.2 passed the order on 06.03.2004 under Section 34 of the Registration Act, 1908 refusing to register the sale deed in question in the absence of the petitioners being present before respondent No.2.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>Having heard the learned counsel for the parties and having perused the material on record, the point that arises for consideration is: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“Whether the registration under Section 73 of the Registration Act was justified in overlooking the judgment in O.S.No.2153/2006?”<br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>It is relevant to note the undisputed facts that, the petitioners are the absolute owners of the suit schedule property. It is also not in dispute that a suit in O.S. No.2153/2006 filed by respondent No.3 seeking for specific performance of contract on the basis of the agreement of sale dated 09.11.1998 and to execute the registered sale deed was contested by the petitioners herein and ultimately, the suit of the plaintiff/respondent No.3 came to be dismissed on 29.03.2010 and the said order has remained unchallenged. The said suit came to be dismissed during the pendency of the appeal before respondent No.1-the District Registrar when the order was passed on 27.09.2013. The District Registrar without considering the order of the Civil Court, has held enquiry and directed respondent No.2 to register the sale deed in the name of respondent No.3. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>Section 32 of Part VI states about the Registration of the document under the Registration Act and the persons to present the document for registration and in terms of the said section, the document is to be presented by the person executing and who has a right for presentation. The said section also provides that any person, the executant or its duly authorized agent can present the instrument for registration. The exception provided in the section is as mentioned in Sections 31, 88 and 89. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>The Sub-Registrar has to conduct enquiry under Section 34. Sub-Clause 3 of Section 34 envisages the Registering Officer to enquire whether or not such document was executed by the persons or by whom it purports to have been executed and satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document and in case of any person appearing as a representative, assign or agent satisfy himself of the right of such person to appear. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>Sub-Section 3(a) of Section 34 clearly envisages about the enquiry to be conducted by the Registering Officer.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>15.<span style=\"white-space:pre\">	</span>Section 35 of the Registration Act, envisages the procedure on admission and denial of execution by the Registering Officer. Sub-Section 3(a) of Section 35 envisages that if a person by whom the document purports to be executed denies its execution. The Registering Officer shall refuse to register the document.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">18.<span style=\"white-space: pre;\">	</span>Section 74 envisages the procedure of the Registrar on such application. On refusal to register on the ground of denial of execution application to be filed before the Registrar under Section 73. Respondent No.3 preferred an application to the Registrar under Section 73 since the Sub-Registrar refused to register the document on the ground that the petitioners by whom it is purported to be executed have declined for registration of the Sale Deed. The Sub-Registrar refused to register the document on the objections filed by the petitioners when the deed was presented for registration. The Registrar-respondent No.1 on the said application has directed respondent No.2-the Sub-Registrar to register the document by holding enquiry. The powers of the Registrars while dealing with an application under Section 73, no doubt is wider than the power, which has entrusted to the Sub-Registrar under Section 35, making it evident that the Sub-Registrar under Section 35 (3) (a) can mandatorily refuse registration when the execution of a document is denied by the person purported to have executed the document, on the other hand, the Registrar is entrusted with the power to conduct an enquiry under Section 73 by following procedures as envisaged under Section 74.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space: pre;\">	</span>The Apex Court in the case of Veena Singh (Dead) through legal representative Vs. District Registrar/Additional Collector (F/R) and Another reported in (2022) 7 SCC 1 [Veena Singh] while considering Sections 35, 72, 73 and 74 of the Act, at paragraph Nos.80, 81, 82, 83 and 84 has held as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“80. Section 73 of the Registration Act envisages that an application may be submitted to the Registrar by a person in order to establish their rights to have a document registered, in a situation where the Sub-Registrar has refused to register the document on the ground that the person by whom it purports to have been executed has denied its execution. Section 74 then lays down the procedure which is to be followed by the Registrar, which contemplates an enquiry by the Registrar into whether the document has been executed and whether requirements of law for the time being in force have been complied with on the part of the applicant or the person presenting the document for registration. When the twin requirements of clauses (a) and (b) of Section 74 are found by the Registrar to have been fulfilled, sub-Section (1) of Section 75 provides that the Registrar shall order the document be registered.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> 81.<span style=\"white-space: pre;\">	</span>Sub-Section (4) of Section 75 stipulates that for the purpose of the enquiry under Section 74, the Registrar may summon and enforce the attendance of witnesses and compel them to give evidence as if he is a civil court. The Registrar is also empowered to impose the obligation of paying the costs of the enquiry on a party, and such costs are to be recovered as if they have been charged in a suit under the CPC. Thus, sub-Section (4) of Section 75 incorporates a deeming fiction from two perspectives – first, in empowering the Registrar to summon and enforce the attendance of witnesses and for compelling them to give evidence “as if he were a civil court”; and second, in awarding costs which become recoverable “as if they have been awarded in a suit” under the CPC.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><i><b><font face=\"Calibri, sans-serif\">82.<span style=\"white-space: pre;\">	</span>The process which is conducted by the Registrar for the purpose of an enquiry under Section 74 cannot be equated to the powers of the civil court, though certain powers which are entrusted to a civil court are vested with the Registrar by the provisions of Section 75(4). A quasi- judicial function is entrusted to the Registrar for the purpose of conducting an enquiry under Section 74. Where the Registrar refuses to register a document under Sections 72 or 76, no appeal lies against such an order. Section 77, however, provides that when the Registrar refuses to order the document to be registered, any person claiming under such document or its representative, assign or agents may institute a suit before the civil court within the stipulated time for a decree directing that the document shall be registered. It is thus clear that the Registrar, when he conducts an enquiry under Section 74, does not stand constituted as a civil court. The enquiry before the Registrar is summary in nature. The decision of the Registrar in ordering document to be registered, or for that matter in refusing to register a document, is not conclusive and is amenable to judicial review.</font></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><i><b><font face=\"Calibri, sans-serif\">83.<span style=\"white-space: pre;\">	</span>Therefore, in a situation where an individual admits their signature on a document but denies its execution, the Sub-Registrar is bound to refuse registration in accordance with Sections 35(3)(a) of the Registration Act. Subsequently, if an application if filed under Section 73, the Registrar is entrusted with the power of conducting an enquiry of a quasi-judicial nature under Section 74. If the Registrar passes an order refusing registration under Section 76, the party presenting the document for registration has the remedy of filing a civil suit under Section 77 of the Registration Act, where a competent civil court will be able to adjudicate upon the question of fact conclusively.</font><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>84.<span style=\"white-space: pre;\">	</span>Finally, our attention has been drawn to Section 58(2) of the Registration Act, which stipulates as follows:</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“58. Particulars to be endorsed on documents admitted to registration.—(1) * * *</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(2) If any person admitting the execution of a document refuses to endorse the same, the registering officer shall nevertheless register if, but shall at the same time endorse a note of such refusal.”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>In the present case, the Registrar while exercising the power conferred under Section 74 has arrived at a finding that the petitioners have appeared and admitted their signatures to the document in question and therefore, is liable to be registered without considering the settled proposition of law that mere signing of an instrument would not amount to an execution as held by the Apex Court in the case of Veena Singh (stated supra). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space:pre\">	</span>On perusal of the order of the Registrar would make it evident that the Registrar is sitting over the judgment of the Civil Court by going to an extent of enquiring into the dispute between the parties when the Civil Court dismissed the suit of the plaintiff for specific performance of contract. The Apex Court in the case of Avnash Rani, at paragraph No.14 has held as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“14. Apart from the said fact, respondent No.2 has invoked the jurisdiction of Civil Court for specific performance of the agreement dated 16-3- 2006. The petitioners have filed reply to the said suit. An ad interim application has been disposed of giving liberty to the petitioner to sell the property after obtaining the permission of the Court. The jurisdiction of the Civil Court is plenary in nature and, therefore, all questions in respect of execution of the documents and the receipt of the sale consideration or the execution of the agreement are the issues, which are required to be examined in the Civil suit. Though the statement was made before this Court that the application has been filed for withdrawal of the suit for specific performance but factually the said application has been filed only after the orders were passed by this Court on 17-9- 2008. Once, the matter is pending before the Civil Court at the instance of respondent No.2 alone, wherein all the questions are required to be examined, the invocation of the jurisdiction of the Registrar under Section 73 of the Act is nothing but an abuse of the process of law. As a matter of fact, if the Registrar refuses to register a document, an aggrieved party has a right to invoke the jurisdiction of the Civil Court under Section 77 of the Act. It necessarily implies that the order of Registrar is summary in nature and limited in operation. But once, the parties were before the Civil Court, the invocation of the jurisdiction of the Registrar lacks bona fide. The manner in which the Registrar has ordered registration even though the factum of pendency of the Civil Suit raising disputed questions of fact was raised, speaks volumes of the conduct of officer in ordering registration of the document. To say the least, we are of the opinion that the order registering the document lacks bona fide.” </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22.<span style=\"white-space:pre\">	</span>In the present facts, the Sub-Registrar refused to register the document and aggrieved by which, the application was filed by respondent No.3 before the Registrar under Section 73 of the Registration Act. It is necessary to note that during the pendency of the application before the Registrar, the suit came to be dismissed and thus, the decision of the Registrar in directing the document to be registered is contrary to law and the invocation of the jurisdiction of the Registrar itself lacks bonafide in view of the decree of the Civil Court by its judgment dated 23.09.2010 and the point framed for consideration is answered accordingly. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space:pre\">	</span>For the reasons stated supra, this Court is of the considered view that the impugned order at Annexure-A is unsustainable and liable to be set-aside.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> i.<span style=\"white-space:pre\">	</span>The writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'caa36a130d873acdbbaf9aa56416b786.JPG', '01112788b78840d2a79f2e222ea9612f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-10', 1, '', '', '2023-06-09 12:29:30', '2023-06-10 08:01:06');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3036, 'JYQR7FkncDncQKaNy2QMAqTyt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Prevention of Corruption Act. Sanction for prosecution is necessary in respect of retired public servant when the allegations leveled him are the ones in discharge of his official duties while he was in service since. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>B.G. Prakash Kumar Vs State and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 15106 of 2022 decided on 21 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioners in these cases have called in question proceedings in Special C.C.Nos.522 of 2018, 418 of 2018 and 704 of 2020 all arising out of Crime No.4 of 2011 registered for offences punishable under Sections 120B, 409, 465, 468, 477 of the IPC r/w Section 13(1)(c) and (d) and 13(2) of the Prevention of Corruption Act, 1988. Since the issue in all these cases being similar, these matters are taken up together and considered by this common order.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 2.<span style=\"white-space: pre;\">	</span>Brief facts that lead the petitioners to this Court in these petitions, as borne out from respective pleadings, are as follows:-</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The petitioner is a retired Executive Engineer, retired from the services of the Bruhat Bengaluru Mahanagara Palike (‘the BBMP’ for short) on attaining the age of superannuation. During his tenure, the petitioner was in-charge of execution of certain works during the years 2008 to 2011. Complaints galore on the way the works were executed by several officers of BBMP. The work related to asphalting of new BEL Road, Ward No.5 of Malleshwaram Sub- Division. Based on the said allegations, a crime comes to be registered against the petitioner in Crime No.4 of 2011 arraigning the petitioner as accused No.1 along with several other officers. The matter was then entrusted to the Crime Investigation Department (‘CID’) for conduct of investigation. The CID after investigation filed a charge sheet before the concerned Court in the year 2018 and the matter is now pending in Special C.C. No.522 of 2018. The development in the interregnum is that the petitioner retires from service on attaining the age of superannuation. The allegation against the petitioner is, as observed hereinabove, concerning asphalting work in the tenure of him being the Executive Engineer of Malleshwaram Sub-Division from 28-11-2008 to 21-08-2014, but the works alleged were concerning between 2008 and 2011. Challenging filing of charge sheet and cognizance being taken by the concerned Court, the petitioner is before this Court in the subject petition.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>The afore-narrated facts are not in dispute and they lie in a narrow compass. The submission on merits of the matter as projected by the learned counsel appearing for the petitioners is not even necessary to be noticed, as on the facts of the matter if the submission is to be accepted, it would run counter to the settled principle of law and when there are seriously disputed questions of fact the Court exercising its jurisdiction under Section 482 of the CrPC would not interfere and obliterate such proceedings for which a trial would become imperative as held by the Apex Court in the case of KAPTAN SINGH v. STATE OF UTTAR PRADESH1. The other two issues that are projected are issues that would cut at the root of the matter. Therefore, they require consideration.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>The learned counsel for the petitioners has relied on Rule 214 of the KCSRs to contend that initiation of proceedings is contrary to Rule 214(3) and (6) of the KCSRs. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Rule 214(3) mandates that no judicial proceeding if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution. Sub- rule (6) defines what is judicial proceeding. Judicial proceedings shall be deemed to be instituted in case of criminal proceedings on the date the complaint or report of a police officer, of which the Magistrate takes cognizance of such report and in the case of civil proceedings, the date of plaint presented before the Court.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>The other submission is with regard to obtaining of sanction from the hands of the Competent Authority to continue trial, for which it is necessary to notice Section 197 of the CrPC. The allegations against the petitioners are offences under the IPC and the Prevention of Corruption Act. Since the petitioners have retired from service what would become applicable or otherwise is Section 197 of the CrPC and not Section 19 of the Prevention of Corruption Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Any act of public servant in the course of discharge of his official duty is alleged to become an ingredient of offence under any penal law, sanction for such prosecution is imperative.  The petitioners have retired from service. The submission is sanction is not required for persons who have already retired from service particularly, when the offences are of cheating and forgery. The submission is noted only to be rejected. The issue whether sanction qua retired employees under Section 197 of the CrPC is necessary to be obtained or otherwise is no longer res integra. The Apex Court in the case of STATE OF PUNJAB v. LABH SINGH2 has held as follows:</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>“5. The Special Judge framed charges on 7-6-2005 against all seven accused for the offences under Sections 218/409/465/467/120-B IPC and under Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988 (“the PC Act”, for short). Out of six charges framed, one pertained to the offence under Section 13(1)(c) read with Section 13(2) of the PC Act while other five related to the offences under the Penal Code, 1860. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. In the present case the public servants in question had retired on 13-12-1999 and 30-4-2000. The sanction to prosecute them was rejected subsequent to their retirement i.e. first on 13-9-2000 and later on 24-9-2003. The public servants having retired from service there was no occasion to consider grant of sanction under Section 19 of the PC Act. The law on the point is quite clear that sanction to prosecute the public servant for the offences under the PC Act is not required if the public servant had already retired on the date of cognizance by the court. In S.A. Venkataraman v. State [S.A. Venkataraman v. State, AIR 1958 SC 107 : 1958 Cri LJ 254 : 1958 SCR 1040] while construing Section 6(1) of the Prevention of Corruption Act, 1947 which provision is in pari materia with Section 19(1) of the PC Act, this Court held that no sanction was necessary in the case of a person who had ceased to be the public servant at the time the court was asked to take cognizance. The view taken in S.A. Venkataraman [S.A. Venkataraman v. State, AIR 1958 SC 107 : 1958 Cri LJ 254 : 1958 SCR 1040] was adopted by this Court in C.R. Bansi v. State of Maharashtra [C.R. Bansi v. State of Maharashtra, (1970) 3 SCC 537 : 1971 SCC (Cri) 143] and in Kalicharan Mahapatra v. State of Orissa [Kalicharan Mahapatra v. State of Orissa, (1998) 6 SCC 411 : 1998 SCC (Cri) 1455] and by the Constitution Bench of this Court in K. Veeraswami v. Union of India [K. Veeraswami v. Union of India, (1991) 3 SCC 655 : 1991 SCC (Cri) 734] . The High Court was not therefore justified in setting aside the order passed by the Special Judge insofar as charge under the PC Act was concerned.</b></font></p><div><b><br></b></div><div><div><b>9. In the present case the public servants in question had retired on 13-12-1999 and 30-4-2000. The sanction to prosecute them was rejected subsequent to their retirement i.e. first on 13-9-2000 and later on 24-9-2003. The public servants having retired from service there was no occasion to consider grant of sanction under Section 19 of the PC Act. The law on the point is quite clear that sanction to prosecute the public servant for the offences under the PC Act is not required if the public servant had already retired on the date of cognizance by the court. In S.A. Venkataraman v. State [S.A. Venkataraman v. State, AIR 1958 SC 107 : 1958 Cri LJ 254 : 1958 SCR 1040] while construing Section 6(1) of the Prevention of Corruption Act, 1947 which provision is in pari materia with Section 19(1) of the PC Act, this Court held that no sanction was necessary in the case of a person who had ceased to be the public servant at the time the court was asked to take cognizance. The view taken in S.A. Venkataraman [S.A. Venkataraman v. State, AIR 1958 SC 107 : 1958 Cri LJ 254 : 1958 SCR 1040] was adopted by this Court in C.R. Bansi v. State of Maharashtra [C.R. Bansi v. State of Maharashtra, (1970) 3 SCC 537 : 1971 SCC (Cri) 143] and in Kalicharan Mahapatra v. State of Orissa [Kalicharan Mahapatra v. State of Orissa, (1998) 6 SCC 411 : 1998 SCC (Cri) 1455] and by the Constitution Bench of this Court in K. Veeraswami v. Union of India [K. Veeraswami v. Union of India, (1991) 3 SCC 655 : 1991 SCC (Cri) 734] . The High Court was not therefore justified in setting aside the order passed by the Special Judge insofar as charge under the PC Act was concerned.</b></div></div><div><b><br></b></div><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>However as regards charges for the offences punishable under the Penal Code, the High Court was absolutely right in setting aside the order of the Special Judge. Unlike Section 19 of the PC Act, the protection under Section 197 CrPC is available to the public servant concerned even after retirement. Therefore, if the matter was considered by the sanctioning authority and the sanction to prosecute was rejected first on 13-9-2000 and secondly on 24-9-2003, the Court could not have taken cognizance insofar as the offences punishable under the Penal Code are concerned. As laid down by this Court in State of H.P. v. Nishant Sareen [State of H.P. v. Nishant Sareen, (2010) 14 SCC 527 : (2011) 3 SCC (Cri) 836] , the recourse in such cases is either to challenge the order of the sanctioning authority or to approach it again if there is any fresh material. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>In the circumstances, in our view the order under appeal passed by the High Court is correct insofar as charges under IPC are concerned but must be set aside as regards charge under the PC Act is concerned. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>Before we part, we must record that we do not approve the stand taken by the appellant in the petition. The prosecution cannot keep waiting till a public servant retires and then choose to file charge-sheet against him after his retirement, thereby setting at naught the protection available to him under Section 19 of the PC Act. The appeal, thus, stands allowed partly. No order as to costs.”<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The Apex Court was considering the issue whether once the public servant would retire, sanction for prosecution would be necessary or otherwise, notwithstanding the fact that the allegations leveled against those public servants are the ones in discharge of their official duties while they were in service. The Apex Court has clearly answered that, sanction for such prosecution even against retired persons is necessary. In the light of the issue standing covered by the judgment of the Apex Court and the admitted fact, that sanction is not even sought from the hands of the Competent Authority to be placed before the concerned Court for continuing the trial, further proceedings before the concerned Court cannot be permitted to continue unless the prosecution obtains and places before the concerned Court a valid sanction from the Competent Authority.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Writ Petitions are allowed in part.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9e4b5b6b1c214683aa53aae7d26e07b2.jpeg', '62c03ae3ae8aef71bb4568167e9fc625.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-09', 1, '', '', '2023-06-05 15:48:37', '2023-06-09 03:22:14'),
(3037, 'bGdQgslcJzOSOG2fa2YvffKLO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '  Lands earmarked in the Master Plan for minor or major roads, State or National highways would not lapse if they are not acquired within five years. Planning Authority has a right to hold on to the lands in terms of KTCP Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K. Gopalagowda and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 50462 of 2019 decided on 2 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioners are before this Court calling in question resolution dated 12-07-2017 by which the 3rd respondent/ Bangalore International Airport Area Planning Authority (‘the Planning Authority’ for short) refused to consider the request of the petitioners, for change of alignment to the tune of 30 meters in the Master Plan concerning road that passes through the lands of the petitioners and have also sought for quashment of endorsements dated 20-05-2018 (20-06-2018)(Annex – T, T1) and 25-07-2018 which communicate the said resolution. The petitioners further seek a writ in the nature of mandamus directing the respondents to change the alignment passing through certain villages in which the lands of the petitioners situate. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Shorn of unnecessary details, facts germane are as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The 1st petitioner claims to be owner of land measuring 1 acre in Sy.No.10/3 which is now renumbered as Sy.No.10/9 in Tharabanahlli Village, Jala Hobli, Bengalore North Taluk now Yelahanka Taluk in Bangalore Urban District. The 2nd petitioner claims to be the owner of land measuring 1 acre and 32 guntas in Sy.No.15 of the same village. The petitioners aver that the village map of Tharabanahlli Village in 1919 displayed existence of village road formed in lands in Sy. Nos. 9, 12, 15, 17 and 21 of Tharabanahalli Village. It is claimed that on 13-09-2004 certain developers having their lands in Sy.Nos. 32, 33, 34 and 35 of Navarathna Agarahara and lands in Sy.Nos. 12 and 9 of Tharabanahlli Village and owing to the development of these lands at the behest of those developers the alignment of road was changed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The 1st petitioner after purchase of land approaches the Planning authority for the purpose of conversion of the land from agriculture to non-agricultural purposes. It is the averment that the 1st petitioner was notified at that point in time that Sy.No.10 of Tharabanahlli Village was earmarked for public and semi-public purpose and not for residential purposes. The 1st petitioner claims to have gone through the master plan and learnt that entire 1 acre in Sy.No.10/3 which is now renumbered as 10/9 of Tharabanahlli Village was proposed to be used for formation of road in the master plan. It is the averment that the petitioner was shocked by such revelation. The 1st petitioner claims that he was not aware of any master plan that was brought into force and the property was earmarked for formation of a road in the master plan. The 1st petitioner was informed that the Planning Authority had approved the interim master plan on 13-09-2014, objections were called for and the final master plan was approved five years thereafter on 29-01-2009. The 1st petitioner claims to be unaware of all these factors.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 4.<span style=\"white-space: pre;\">	</span>The 2nd petitioner had purchased the property measuring 1 acre 32 guntas in Sy.No.15 of Tharabanahlli Village   from Smt. Pillamma in terms of sale deed dated 19-11-2010 and got 30 guntas out of land converted for industrial purposes and the reminder out of the said land was converted for park and road alignment purpose. It is after that the property has been permitted to be used for non-agricultural residential purpose. The Official Memoranda that demonstrate the aforesaid facts are appended to the petition. The 1st petitioner submits representation on 10-02-2016 to the Planning Authority to change the alignment of the road in the master plan, so that it runs in the lands in Sy.No.12 and 9 instead of Sy.Nos. 11, 10, 8 and 15 of Tharabanahlli Village. The representation did not yield any response and a second representation was submitted on 31-03-2016. Certain clarifications were sought from the hands of the 1st petitioner which led the 1st petitioner to submit another representation seeking that alignment should be changed or his land should be subject matter of payment of compensation as the entire 1 acre has been taken away. Communications between the 2nd and 3rd respondents were made after the representation submitted by the 1st petitioner that it should be placed before the Planning Authority. Likewise, the 2nd petitioner submits a representation on 13-03-2017 seeking the Planning Authority to change the alignment of master plan road so that it runs in the lands in Sy.Nos. 12 and 9 as was sought for by the 1st petitioner. It was the claim of the 2nd petitioner that the land belonging to him in Sy.No.15 is earmarked for public and semi- public purpose and reminder of the land had lost its value.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>The afore-narrated facts of the petitioners coming in possession of lands and then submitting representations and their rejection by way of resolution are all matters of record. The story begins from the interim master plan of the year 2004 in which the lands belonging to the petitioners became a subject matter of formation of road in the interim master plan. A final master plan was notified on 29-01-2009. Therefore, the lands belonging to the petitioners were held for the purpose of formation of road in the year 2009. It is then the petitioners purchased the lands from the erstwhile land owners. Therefore, at the time when the petitioners purchased the lands, the master plan, interim/final was already in existence and the lands of the petitioners were earmarked for the purpose of formation of road in the said master plan, interim/final.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 11.<span style=\"white-space: pre;\">	</span>Preparation of master plan is dealt with under the Karnataka Town and Country Planning Act, 1961 (hereinafter referred to as ‘the Act’ for short) and contents of master plan is dealt with under Section 12 thereof. Section 13 deals with approval of the master plan and Section 13A deals with interim master plan.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The master plan in the case at hand – interim was prepared in the year 2004 and lands belonging to the erstwhile land owners of the petitioners were declared to be part of master plan for the purpose of formation of road and in the final master plan notified in the year 2009 it was so declared.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Identical rejection is communicated to the 2nd petitioner as well. The reason rendered in the communications is that the lands are included in the Master Plan for the purpose of formation of road and in the event there are developments in future, the lands would be required for formation of road and further indicates that at that stage it is not possible to accede to the request of the petitioners to realign the master plan. The petitioners challenge the resolution and the communications. What is now required to be considered is, whether the Planning Authority has a right to hold on to the lands in terms of law and the petitioners have a right to seek realignment of the plan regarding formation of road in the master plan? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>As observed hereinabove, the preparation of master plan is statutorily recognized – from the preparation to the approval. Lapsing of holding of lands is dealt with under Section 69 of the Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In terms of Section 69 the Planning Authority may acquire any land designated in the master plan for public purpose by agreement or under the Act. Sub-section (2) thereof mandates that if the land designated for public purpose except the land designated for purpose of clause (b) of sub-section (1) of Section 12 is not acquired either by agreement within five years from the date of its publication or under the Act, such holding of the land by acquisition by the Planning Authority would lapse. Sub-section (2) carves out an exception. But the exception is with regard to the lands which are designated for a particular purpose in clause (b) of sub-section (1) of Section 12. Clause (b) of sub-section (1) of Section 12 deals with street pattern, major and minor roads, national highways, state highways, traffic circulation pattern and other immediate and future requirements with proposals for improvements. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>In these circumstances, reference being made to the guidelines issued by the State Government for change of land use on 12-10-2012 becomes apposite to notice.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>Therefore, the right of a land-owner which would emerge from sub-section (2) of Section 69 to claim that the lands earmarked in the master plan would lapse if they are not acquired within five years would not enure to the benefit of the petitioners, as the statute itself makes an exception that once it is earmarked for the purpose of roads, major or minor; highways state or national; for meeting immediate and future requirements, would all be exempted from lapsing despite the passage of five years. It is no doubt true that the lands of the petitioners have been held by the Planning Authority under the master plan since 2004 and 19 years have passed by. The Master Plan of 2025 is yet to come about as the one that is in existence is the master plan of 2015, in which the lands of the petitioners continues to be held for the purpose of formation of road.   Therefore, the petitioners cannot claim that their lands held by the Planning Authority in terms of Section 12 would lapse or the petitioners would have a right to re- claim the land or seek to realign formation of roads. The law prohibits it. If the law prohibits it, this Court by its fiat cannot direct the Planning Authority to act contrary to law.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>In these circumstances, reference being made to the guidelines issued by the State Government for change of land use on 12-10-2012 becomes apposite to notice.The guidelines stipulate that change of land use proposals shall not be submitted to the Government under certain circumstances – one such circumstance is if the land is coming in the alignment of existing/proposed roads of the master plan. These guidelines are issued in order to remove certain ambiguities of what is permissible and not, under Section 14A of the Act, which provides change of land use from the approved master plan. Therefore, the petitioners do not have a right to seek a fresh alignment or re-alignment or dropping of the lands of the petitioners from the master plan merely on the score that it has been a score year that the Planning Authority has held on to the lands of the petitioners for the purpose of formation of road. The holding is permitted under the Act. Change of land use is prohibited under the Act of such holding. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>In the light of the aforesaid facts and mandate of the statute, reference being made to the judgments rendered by this Court, on the issue, both by the Division Bench and that of the learned single Judge becomes apposite. The Division Bench in the case of BANGALORE DEVELOPMENT AUTHORITY v. Y. BAYAPPA REDDY (supra) has held as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>“12. Section 69(2) of the Karnataka Town and Country Planning Act, 1961 makes it very clear that in the matter of construction of road, the proceedings will not at all lapse even if the period of five years is over and therefore, in the considered opinion of this Court, the learned single Judge could not have passed an order holding that the writ petitioner is entitled to proceed with the development of his site. Resultantly, this Court is of the opinion that the order passed by the learned single Judge in Review Petition Nos. 68 of 2016 and 83-88 of 216 deserves to be set aside and accordingly, the same is set aside.”<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">The Division Bench after quoting and noticing Section 12 and its purport and Section 69 and its purport has held that the lands held by the Planning Authority in terms of clause (b) of sub-section (1) of Section 12 of the Act would not lapse. Much earlier to the judgment rendered by the Division Bench, a learned single Judge of this Court in the case of VIDYA VIKAS EDUCATIONAL TRUST (supra) has held as follows:</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>69 . Acquisition of land designated for certain purposes in a Master Plan : (1) The Planning Authority may acquire any land designated in a Master Plan for specified purpose in clause (b), (c) or (d) of sub- section(1) of section 12, or for any public purpose out of those specified land in clause (a) of sub-section(1) of section 12 by agreement or under the Land Acquisition Act, 1894, (Central Act I of 1894) as in force in the Sate. If the land is acquired under the Land Acquisition Act, 1894, the provisions of said Act as amended by S. 72 of the Act shall apply to the determination of compensation for the acquisition of such land. (2) If the designated land, except land specified for the purpose in clause (b) of sub-section(1) of section 12, is not acquired by agreement within five years from the date, the Master Plan is published in the gazette under sub-section(4) of section 13 or if the proceedings under the Land Acquisition Act are not commenced within such period the designation shall be deemed to have been lapsed.”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> 8.<span style=\"white-space:pre\">	</span>A reading of the above Section specifies that the lands designated for the purpose of major and minor roads, national high ways, state high ways etc., shall not be lapsed even if they are not acquired within the stipulated time of 5 years from the date of publication of master plan. in the instant case in the master plan the lands in question are designated for the purpose of roads. Therefore even if the lands in question are not acquired, the designation of lands as roads will not lapse. Therefore the respondents are well within their power insisting on the petitioner to leave the road under the impugned endorsement.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>9.<span style=\"white-space:pre\">	</span>Petitioner contends that it has given a representation on 15-12-2008 as per Annexure L to third respondent requesting to make necessary changes in the comprehensive development plan and to delete the designated road in the property of the petitioner. Again on 4-2-2009 the petitioner gave a reminder as per Annexure L-1. Even to this day third respondent has not considered the request of the petitioner as per Annexure L and L1. It is obligatory on the part of third respondent to consider the request of the petitioner.”</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>Therefore, in the light of the mandate of law and its interpretation by the Division Bench and the learned single Judge of this Court, the petitioners have not made out a case of demonstrable right, to remedy their grievance, by issuance of a mandamus at the hands of this Court, as the action of the Planning Authority is permitted in law and the redressal of the grievance of the petitioners, for now is prohibited in law. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>16.<span style=\"white-space:pre\">	</span>For the aforesaid reasons, the petition lacking in merit stands dismissed.</b><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3bc44abcdd90f66f7aa528255b8a1f36.jpeg', '5a1e4fbea82025341288fa4993c3e93e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-07', 1, '', '', '2023-06-06 11:42:43', '2023-06-07 12:21:08');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3041, 'DusSgdphfqLAGUI6VWJJLV0jP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Bank Guarantee is not furnished for it to be photo-framed and hung on the wall.” Courts cannot halt encashment of Bank Guarantee unless circumstances would warrant. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>PG Setty Construction Technology Pvt Ltd Vs The Managing Director Karnataka State Police Hosuing and Infrastructure Development Corporation and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 753 of 2023 decided on 2 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The petitioner/P.G. Setty Construction Technology Private Limited (hereinafter referred to as ‘the Company’ for short) is knocking at the doors of this Court seeking stalling of the act of the 1st respondent/Karnataka State Police Housing and Infrastructure Development Corporation (‘the Corporation’ for short) in encashing the Bank Guarantee of `1,15,13,500/- and has sought for a mandamus directing the respondents to restore/refund the bank guarantee that is encashed along with interest at 18% per annum.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Facts in brief, germane for consideration of the lis, are as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is a Private Limited Company incorporated under the provisions of the Companies Act, 1956 on 10-08-1999. It is the case of the petitioner that it has abundant experience in the construction of all projects in lumpsum on turnkey basis. Likewise, the Board of the Corporation awards a contract in favour of the petitioner for the purpose of construction of 144 Police Quarters in Mandya and Chamarajnagar Districts under a particular scheme – Police Gruha 2020 Scheme. The quarters were to be constructed in lumpsum on turnkey basis. The kind of construction was also indicated in such entrustment. The petitioner claims to have successfully completed the project among several other projects of the Corporation at various places. For the construction of the project, the petitioner and the Corporation entered into a contract and the contract contained certain conditions – one such condition was a defect liability period. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>The operation of the defect liability period and the alleged shoddy construction upon which the Corporation encashed the bank guarantee of `1,15,13,500/- furnished by the petitioner at the time of construction in furtherance of the contract is what drives the petitioner to this Court in the subject petition. The issue thus, in the petition, is not with regard to any other fact of the contract between the parties but confined to whether the act of the Corporation in encashing the Bank Guarantee furnished by the petitioner is in tune with the contract or illegal.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>To consider the aforesaid submissions, it is germane to notice the genesis of the issue. The petitioner, a construction Company is entrusted with the construction of Police Housing Quarters under a particular scheme viz., Police Gruha 2020 Scheme in furtherance of which an agreement is entered into on 07-09-2017 between the petitioner and the Corporation. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The defect liability period mandates that in the event of any structural defects are found in the work executed, the petitioner is solely responsible for repairing or replacing the required part of the work and the petitioner should attend to any defect immediately. The work, according to both the parties, was completed on issuance of a certificate by the Engineer-in-charge on 31-07-2021. Therefore, the defect liability period would operate up to 31-07-2023. After the construction was completed, with the issuance of work satisfactory certificate, the bills of the petitioner were cleared. The problem cropped up after clearance of bills.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>The problems one by one emerged in the construction. In this regard communications galore between the Engineer, the petitioner and the Corporation. The defects are indicated. What was indicated was in about 12 houses there were serious water logging and certain construction contrary to what was agreed upon. Though these defects were indicated, the petitioner did not act immediately and set the things right. Again a communication is made on 24-01-2022 indicating several defects. When the Corporation got fed up in asking the petitioner to get the defects rectified of the shoddy construction, they were left with no choice but to encash the Bank Guarantee and accordingly encashed it. The Bank Guarantee was no doubt furnished by the petitioner on 21-08-2017 for the purpose of security during the period of construction. The Bank guarantee was renewed from time to time and was in force even as on the date on which the Corporation sought encashment of the Bank guarantee in its favour. The issue now is whether the Corporation was justified in encashing the Bank guarantee using the defect liability period clause in the agreement.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>The contract between the petitioner and the respondent/Corporation for construction of quarters appears to have been taken for granted by the petitioner. The construction if it is of such poor quality, it is high time that such contractor should be penalized; penalized I mean, in a manner known to law, in terms of the contract. That is what exactly done by the Corporation. The act of penalizing the petitioner for such shoddy construction is done by encashing the Bank guarantee. No fault can be found with the act of the Corporation in encashing the Bank guarantee.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>Furnishing of Bank Guarantee as a security for and during the execution of the contract, or for the purpose for which it is issued, and the obligation cast upon the Bank to permit encashment of Bank Guarantee, is considered and interpreted by the Apex Court in plethora of judgments. To quote a few, the Apex Court in the case of U.P. CO-OPERATIVE FEDERATIOIN LIMITED v. SINGH CONSULTANTS AND ENGINEERS (P) LTD2 observes as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i> “33. This Court was concerned with the bank guarantee and referred to the previous decision of this Court in United Commercial Bank v. Bank of India [(1981) 2 SCC 766 : AIR 1981 SC 1426 : (1981) 3 SCR 300] . This Court found that this case was covered. The court observed that the court should not, in transaction between a banker and banker, grant an injunction at the instance of the beneficiary of an irrevocable letter of credit, restraining the issuing bank from recalling the amount paid under reserve from the negotiating bank, acting on behalf of the beneficiary against a document of guarantee, indemnity at the instance of the beneficiary.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i> 34. On the basis of these principles I reiterate that commitments of banks must be honoured free from interference by the courts. Otherwise, trust in commerce internal and international would be irreparably damaged. It is only in exceptional cases that is to say in case of fraud or in case of irretrievable injustice be done, the court should interfere.”</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The Apex Court observes that the Bank guarantee must be honoured free from interference by Courts failing which the trust in commerce, internal and international would be irreparably damaged, save in cases where there is fraud played while encashing the Bank guarantee. There is no fraud played in the case at hand by the Corporation in encashing the Bank Guarantee. It is encashed purely in terms of conditions of contract. The Apex Court, in a later judgment, in the case of ANDHRA PRADESH POLLUTION CONTROL BOARD v. CCL PRODUCTS (INDIA) LIMITED has held as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i> “15. We are unable to subscribe to the legal position which has been formulated by the Tribunal. A bank guarantee constitutes an independent contract between the issuing bank and the beneficiary to whom the guarantee is issued. Such a contract is independent of the underlying contract between the beneficiary and the third party at whose behest the bank guarantee is issued.\"</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The Apex Court holds that in the absence of fraud or irretrievable injustice and special equities, the Courts exercising jurisdiction under Article 226 of the Constitution of India should not interfere with the invocation or encashment of Bank Guarantee, so long as the invocation is in terms of the Bank Guarantee.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15... Further, in the case of HINDUSTAN STEELWORKS CONSTRUCTION LTD. V. TARAPORE & CO.,5 the Apex Court has held as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“14. The High Court also committed a grave error in restraining the appellant from invoking bank guarantees on the ground that in India only a reasonable amount can be awarded by way of damages even when the parties to the contract have provided for liquidated damages and that a term in a bank guarantee making the beneficiary the sole judge on the question of breach of contract and the extent of loss or damages would be invalid and that no amount can be said to be due till an adjudication in that behalf is made either by a court or an arbitrator, as the case may be.<br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>The said distinction appears to be the result of the same fallacy committed by the High Court of not appreciating the distinction between the primary contract between the parties and a bank guarantee and also the real object of a bank guarantee and the nature of the bank\'s obligation thereunder. Whether the bank guarantee is towards security deposit or mobilisation advance or working funds or for due performance of the contract if the same is unconditional and if there is a stipulation in the bank guarantee that the bank should pay on demand without a demur and that the beneficiary shall be the sole judge not only on the question of breach of contract but also with respect to the amount of loss or damages, the obligation of the bank would remain the same and that obligation has to be discharged in the manner provided in the bank guarantee.\"</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Subsequently, in the case of NATIONAL HIGHWAYS AUTHORITY OF INDIA V. GANGA ENTERPRISES, the Apex Court has held as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“10. There is another reason why the impugned judgment cannot be sustained. It is settled law that a contract of guarantee is a complete and separate contract by itself. The law regarding enforcement of an “on-demand bank guarantee” is very clear. If the enforcement is in terms of the guarantee, then courts must not interfere with the enforcement of bank guarantee. The court can only interfere if the invocation is against the terms of the guarantee or if there is any fraud. Courts cannot restrain invocation of an “on-demand guarantee” in accordance with its terms by looking at terms of the underlying contract. The existence or non-existence of an underlying contract becomes irrelevant when the invocation is in terms of the bank guarantee.\"</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In the light of the aforesaid judgments of the Apex Court, what would unmistakably emerge is that the Bank Guarantee is not furnished for, it to be photo-framed and hung on the wall, it has a purpose. The purpose is redeemed by the Corporation and cannot be found fault with. 16.<span style=\"white-space:pre\">	</span>It is rather surprising how the Engineers of the Corporation or the Engineers concerned have cleared the bills without inspecting the construction and the quality of construction, as complaints have arisen immediately after the completion certificate is issued. The Police Gruha 2020 scheme is not a private project or private scheme. It is a scheme funded by the Government. If it is a scheme funded by the Government, it is public money. Therefore, contractors undertaking construction utilizing public money cannot be seen to make constructions that are very poor and the life of such inhabitants there becoming unlivable, as this Court, has in plethora of cases come across, contractors undertaking shoddy constructions particularly of low income group (LIG) and mid income group (MIG) houses, in certain cases, even in high income group (HIG) houses. Therefore, it is for the respondent/State to take care that proper constructions are made under any scheme which involves public money, so that public money is not misused by such contractors who undertake such constructions and bring those Engineers to books who would approve such shoddy constructions, as and when it is found. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>For the aforesaid reasons, finding no merit in the petition, the petition deserves to be rejected and is accordingly rejected.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> Pending application if any, also stand disposed, as a consequence.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '99e94a9f0b9f6f2c51b5ea462ed46994.jpeg', '4b36e83db7a80f847a5b1efd393b826f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-07', 1, '', '', '2023-06-06 12:46:02', '2023-06-07 03:21:53'),
(3042, '9BaBisDttnPCG8OVejp5Ypv9m', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'POCSO Act. Reporting of offences under the Act, particularly by doctors, requires strict compliance failing which the very object of the Act would be defeated. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chandrashekar T.B Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 8789 of 2023 decided on 2 June 203.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner/accused No.8 is before this Court calling in question proceedings in Special Case No.44 of 2023 arising out of Crime No.1 of 2023 of Belthangady Police Station registered for offences punishable under Sections 5(J)(II), 5(L), 5(Q), 6 and 21 of the Protection of Children from Sexual Offences Act, 2012 (‘the Act’ for short) and Sections 376, 376(2)(h), 376(2)(n), 376(3), 201, 313 and 34 of the IPC, insofar as it concerns the petitioner, it is under Section 21 of the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Shorn of unnecessary details, facts in brief germane are as follows:- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner, a doctor by profession, having taken voluntary retirement from service now runs a hospital in the name and style of “Prashanthi Hospital” at Laxmisha Nagara, Chikkamagaluru. The incident that triggers registration of crime is that on 17-12-2022 between 13:00 to 14:00 hours, the 2nd respondent/victim comes to the hospital owned by the petitioner, seeking treatment. The victim is said to have entered the hospital with severe bleeding with decreased vitals and her condition was very serious due to such heavy bleeding. The companions along with the victim informed the petitioner that she had taken some tablets for abortion 2 to 3 days back and that has caused severe bleeding. The persons who accompanied the victim claimed to be her parents. It is the averment of the petitioner in the petition that considering the condition, the patient was immediately admitted to the hospital and was put on oxygen, IV fluids etc. The conservative treatment improved the vitals of the victim. She was still unstable and there was no danger to her life. The petitioner is said to have performed medical termination of pregnancy which was incomplete, leaving the placenta behind. On the victim being unstable, further examination was conducted and it was noticed that the bleeding was also seen from outside and, therefore appropriate procedure was performed to retain the placenta as further expulsion would have created danger to the life of the victim. After the victim became stable, which is after about 2 days of such admission, the victim was discharged in the morning hours and was taken by the people, said to be her relatives. After about one month of the said incident, the crime comes to be registered in Crime No.1 of 2023 before the Belthangadi Police Station for the aforesaid offences. The petitioner was not arrayed as accused at that point in time. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>Investigation is conducted by the jurisdictional Police and the result of such investigation was issuance of a notice to the petitioner on 17-02-2023, two months after the aforesaid incident. The allegation against the petitioner was that he has performed the act of medical termination of pregnancy on the victim who was then 12 years and 11 months old and had been subjected to sexual activity. The offence against the petitioner, in particular was the one punishable under Section 21 of the Act. After issuance of notice and recording of statement of the petitioner a charge sheet comes to be filed on 26-02-2023 for the aforesaid offences against other accused and against the petitioner/accused No.8 for the offence under Section 21 of the Act. Filing of the charge sheet is what drives the petitioner to this Court in the subject petition.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">8.<span style=\"white-space: pre;\">	</span>The afore-narrated facts are not in dispute. The petitioner, doctor by profession – Gynaecologist, claims to have worked as Taluk Health Officer in Chikkamagalur Taluk for almost 20 years and starts his own hospital in the name and style of “Prashanthi Hospital” after taking voluntary retirement from Government service. It is his claim that he has put in 35 years of practice as a Gynaecologist and still continues to practice the said discipline in his profession.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">10.<span style=\"white-space: pre;\">	</span>After about 2 months, a notice comes to be issued on 17- 02-2023 to provide treatment details and to tender his statement to the Investigating Officer. The petitioner tenders his statement and claims to be ignorant of the age of the victim which was 12 years and 11 months according to the records. It is the submission of the learned senior counsel that the petitioner was of the firm belief that the age of the victim was 18 years and 3 months as the person who claimed to be her husband has mentioned as such. </font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Accused No.1/husband nowhere mentions the age of the victim in his statement. What he mentions is that he is 21 years old and had administered some tablets to the victim for abortion among other things. The recording of the statements of all the accused led to the filing of the charge sheet by the Investigating Officer for the aforesaid offences. Insofar as the petitioner is concerned, the charge is for the offence punishable under Section 21 of the Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">Section 21 directs that any person<span style=\"white-space: pre;\">	</span>who<span style=\"white-space: pre;\">	</span>fails<span style=\"white-space: pre;\">	</span>to report the commission of an offence under sub-section (1) of Section 19 or Section 20 shall be punished with six months of imprisonment or fine.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Section 19 clearly mandates that notwithstanding anything contained in the Code of Criminal Procedure any person who has knowledge that such an offence has been committed shall report to the local Police or any other enumerated Authority under clause (a) without any loss of time. Therefore, the allegation against the petitioner is that he has not reported the offence to the jurisdictional police or any other Authority enumerated therein. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>The defence of the petitioner is that he had no knowledge that the victim was only 12 years and 11 months.   I decline to accept the said defence. The petitioner claims to be Gynaecologist having 35 years of practice. It is highly improbable that the petitioner at the very look of the patient did not get to know that the victim was of tender age of 12 years and 11 months and had been subjected to sexual intercourse as she had become pregnant. Mere statement or wearing a saree at the time the victim entered the hospital are all a matter of evidence and trial, which this Court at this stage in exercise of its jurisdiction under Section 482 of the CrPC would not consider. The offence against others is horrendous. The information ought to have been given. Defence of ignorance by the petitioner is a matter of trial. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>Though the offence under Section 21 of the Act attracts imprisonment for six months, the offence by the very nature is serious. Merely because it is six months, it cannot be said that the petitioner should be left off the hook at this stage. Being a responsible doctor having close two score years of service as a Gynaecologist, who ought to have been cautious and informed the concerned, as obtaining under Section 19 of the Act. Having not done so, is a serious dereliction.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>The Apex Court has time and again considered this aspect i.e., importance of reporting of offences, particularly by doctors and the seriousness attached to such reporting. A three Judge Bench of the Apex Court in the case of X .. v. PRINCIPAL SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT1 has held...</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The Apex Court holds that Section 19(1) of the Act requires that any person, including a child, who has knowledge of commission of an offence under the Act is mandatorily required to provide information to the Special Juvenile Police Unit or local Police. Section 19(2) of the Act stipulates that every such report under Section 19(1) shall be ascribed an entry number and recorded in writing, read over to the informant and entered in a book to be kept by the Police Unit. Failure to report would definitely ensue punishment. It further observes that when a minor approaches a Registered Medical Practitioner for medical termination of pregnancy arising out of consensual sexual activity, the RMP is obliged under Section 19(1) of the Act to provide information pertaining to the offence committed to the concerned authorities. An adolescent and her guardian may be wary of the mandatory requirement of reporting, as they may not want to entangle themselves in a legal web.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">Later to the aforesaid judgment, the Apex Court in the case of STATE OF MAHARASHTRA AND ANOTHER v. DR. MAROTI </font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">directs that reporting of offences under Section 19 and punishment for those offences under Section 21 must be of strict compliance. The Apex Court holds as follows: </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><i>“12. To achieve the avowed purpose, a legal obligation for reporting of offence under the POCSO Act is cast upon on a person to inform the relevant authorities specified thereunder when he/she has knowledge that an offence under the Act had been committed. Such obligation is also bestowed on person who has apprehension that an offence under this Act is likely to be committed. Besides casting such a legal obligation under Section 19, the legislature thought it expedient to make failure to discharge the obligation thereunder as punishable, under Section 21 thereof. True that under Section 21(1), failure to report the commission of an offence under sub-section (1) of Section 19 or Section 20 or failure to report such offence under sub- section (2) of Section 19 has been made punishable with imprisonment of either description which may extend to six months or with fine or with both. Sub-section (2) of Section 21 provides that any person who being in-charge of any company or an institution (by whatever name called) who fails to report the commission of an offence under sub- section (1) of Section 19 in respect of a subordinate under his control, shall be punishable with imprisonment with a term which may extend to one year or with fine. Certainly, such provisions are included in with a view to ensure strict compliance of the provisions under the POCSO Act and thereby to ensure that the tender age of children is not being abused and their childhood and youth is protected against exploitation.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">13.</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem; white-space: pre;\">	</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Looking at the penal provisions referred above, making failure to discharge the obligation under Section 19(1) punishable only with imprisonment for a short duration viz. six months, one may think that it is not an offence to be taken seriously. However, according to us that by itself is not the test of seriousness or otherwise of an offence of failure to discharge the legal obligation under Section 19, punishable under Section 21 of the POCSO Act.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>16.<span style=\"white-space:pre\">	</span>Prompt and proper reporting of the commission of offence under the POCSO Act is of utmost importance and we have no hesitation to state that its failure on coming to know about the commission of any offence thereunder would defeat the very purpose and object of the Act. We say so taking into account the various provisions thereunder. Medical examination of the victim as also the accused would give many important clues in a case that falls under the POCSO Act. Section 27(1) of the POCSO Act provides that medical examination of a child in respect of whom any offence has been committed under the said Act, shall, notwithstanding that a first information report or complaint has not been registered for the offence under the Act, be conducted in accordance with Section 164-ACrPC, which provides the procedures for medical examination of the victim of rape.\"</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The Apex Court was considering a case of non-reporting by a doctor and directed strict compliance of Section 19 of the Act. Therefore, both the judgments of the Apex Court quoted supra would unmistakably direct that reporting of offences under the Act, particularly by doctors, requires strict compliance failing which, the offender committing offence arising out of consensual sexual activity or a rape or sexual abuse on a child will get away from the clutches of law, which would defeat the very object of promulgation of the Act as the provision is one of those steps towards preventive measures of child abuses. Therefore, responsibility to report is cast on all stake holders. Wherefore, it is necessary for the State to direct strict compliance with Section 19 and reporting of offences particularly by doctors who indulge in medical termination of pregnancy of minors in extenuating circumstances. Even though the offence as observed hereinabove, is punishable by six months, the doctors in particular, shall take into consideration the entire attendant facts, that would have befallen on a child, who is subjected to any of the ingredients under Sections 4, 5 and 6 of the Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Writ Petition stands dismissed.</b></font></span></p>', '53b01d6b2878ca0158b404594e5e969b.jpeg', '259fbfceab8148398fc17aa5349b7769.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-08', 1, '', '', '2023-06-06 12:58:00', '2023-06-08 10:31:22'),
(3043, 'EyVaeIRjhAyAzOyjIFEMDBPvo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Janani Janma Bhoomischa Swargaadapi Gariyasi\'\'. Karnataka High Court orders grant of parole to incarcerated man to see his dying mother.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shivappa Bellad Vs Superintendent of Open Air Prison and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 8631 of 2023 decided on 22 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S. Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">Petitioner, who is serving a prison sentence is knocking at the doors of Writ Court seeking inter alia the following prayer: “(b) Issue a Writ Order or direction in the nature of mandamus to the Respondents to consider the requisition of the Petitioner for grant of general parole for 30 days (extendable) so as to enable him to attend his ailing mother…as per Rule 191 of the Karnataka Prison Rules…”</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>Having heard the learned counsel for the parties and having perused the petition papers, this Court, being conscious of the shortness of human life and the irreplaceable position and bond between mother and children, is inclined to grant a restrictive & conditional indulgence in the matter inasmuch as petitioner\'s mother Smt. Gangavva, aged about 75 years, an inpatient in General hospital Kushtagi, is stated to be suffering from ailments natural to the old age. Valmiki in Ramayana says, \"Janani Janma Bhoomischa Swargaadapi Gariyasi\" meaning \"…mother and motherland are superior even to heaven.\" When a mother is in contemplation of death, as argued at the Bar, it is a legitimate urge for the children to see her and for the mother to see her children. This court sees no reason, why a reasonable opportunity to see the mother, must be denied to the petitioner and thereby to deprive the mother sight of her child. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>A Co-ordinate Bench of this Court, vide judgment in W.P. No.24274/2022, between SRI. OMKARMURTHY vs. ASST. SUPERINTENDENT OF POLICE disposed off on dated 12.12.2022 has sympathetically considered the case of the kind and granted release on parole and therefore, some wisdom can be drawn from the reasoning in the said judgment which favors the case of petitioner. What George A. Ellis in his book ‘Inside Folsom Prison’ said about the nature of convicts very pertinently has been reproduced below:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> “Contrary to popular opinion, all convicts are not rock-hard individuals lacking sufficient emotional balance. They are people, with fears and aspirations like everyone else. Generally, they don’t want to fight with or kill their neighbor any more than the man on the street. They want to live in peace and return to it their loved ones as soon as possible. They are not a different breed of human being or a distinct type of mentality. They are persons who have made mistakes. This point is made not to solicit pity but to bring attention to the fact that any individual could be caught in a similar web and find himself inside a pit such as Folsom Prison…”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> In the above circumstances, this writ petition succeeds in part; the Respondent – Superintendent of Open Air Prison is directed to grant emergency parole of three weeks, i.e., from forenoon of 24.05.2023 till the afternoon of 14.06.2023 to the petitioner, subject to all usual restrictions and conditions in accordance with law.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> No costs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '07a8eb3dfbce40a424bf36d5db5311eb.JPG', '3f10a5228883c8b9f988307e44d3435d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-09', 1, '', '', '2023-06-06 13:49:27', '2023-06-09 12:07:17');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3046, 'IcElYDIkll3PY6rsAHzIlWsI8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Unconditional allotment of property under a partition will not attract the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bindu R Vs The Assistant Commissioner and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 15131 of 2021 decided on 6 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.S. Hemalekha.   </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The present writ petition by the grand-daughter Bindu R., assailing the order dated 03/03/2021, passed in Hi.Na.CR.19/2020-21, by Respondent No.1/Assistant Commissioner, Davanagere Sub- Division, Davanagere, whereby the registered partition deed dated 14/08/2017 was cancelled, directing the Sub-Registrar to register the property mentioned in the partition deed in the name of respondent No.3/Tippamma, also directed the Tahsildar to transfer the khata in the name of respondent No.3/Tippamma exercising his power under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as \"the Act\" for the sake of convenience).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 2.<span style=\"white-space: pre;\">	</span>The relevant facts leading to the filing of this writ petition are: Respondent No.3/Tippamma the grandmother of the petitioner and mother of respondents Nos.4 to 9 and 12. The property was originally owned by the husband of respondent No.3/Tippamma by the name Janakappa and on his death, the property was transferred in the name of respondent No.3/Tippamma. This being so, on 14/08/2017, respondent No.3/Tippamma represented the petitioner as a minor guardian and entered into a partition deed between herself and respondent Nos.4 to 9 on one hand as a first-party, respondent No.10/Lakshmi Devi as second party, respondent No.11/Shailaja H., as the third party, the petitioner represented through minor guardian respondent No.3/Tippamma as the fourth party and respondent No.12/Bheemappa as the fifth party. In the said partition, the share of respondents Nos.3 to 9 was received by respondent No.3/Tippamma by way of cash to a sum of Rs.2.00 lakh. It is also revealed from the partition deed that respondent No.3 represented as the guardian to the minor petitioner then, as both the parents of the petitioner were no more and accordingly, in Sy. No.14/4 out of 5 acres 7 guntas of land, 1 acre 34 guntas was given to the share of petitioner through minor guardian/respondent No.3. The petitioner on attaining the age of majority, for a family necessity, appears to have sold 1 acre 34 guntas in Sy. No.14/4 in favour of Hanumanthappa K., for a valuable consideration on 19/11/2020 and put him in possession of the same and accordingly, RTC and pahani for the year 2020-2021 were effected in the name of the purchaser Hanumanthappa K., in respect of the said land. This being so, respondent No.5 to get back the property filed a petition under Sections 4 and 23 of the Act with a prayer to cancel the registered partition deed dated 14/08/2017 and put her in possession of the land in Sy. No.14/4 of Javalaghatta Village, Davanagere.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>Having heard learned counsel for the parties and on perusal of the material on record, the point for consideration is, </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>\"Whether the petition filed under section 23 before the Assistant Commissioner is maintainable in light of non-providing of clause for maintenance in the partition deed?\" </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>Undisputedly, a partition deed was executed between respondents Nos.3 to 9 as the first party along with respondent No.3 and the petitioner was represented by the minor guardian respondent No.3 as the fourth party and the property in question, Sy.No.14/4 measuring 5 acres 7 guntas and at that point of time, the petitioner was aged about 16 years was represented by minor guardian was allotted 1 acre 34 guntas of land. It is also not in dispute that respondent No.3 has received a sum of Rs.2.00 lakh on behalf of respondents Nos.4 to 9. The partition deed was executed in the year 2017 after the petitioner attained the age of majority and for her family necessity, she has sold the property in favour of a third person in the year 2020.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>To come under the purview of the Act, Section 23 needs to be considered. Section 23 of the Act reads as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>\"23. Transfer of property to be void in certain circumstances.—</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b> (1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(2)<span style=\"white-space:pre\">	</span>Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>(3)<span style=\"white-space:pre\">	</span>If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of section 5.\" </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>Section 23 of the Act, only examines the jurisdictional fact as to whether there was an expressed provision of basic maintenance and basic physical needs by the transferee to the transferor as a condition of transfer in the document which effectuates such transfer. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>Perusal of Section 23 of the Act would reveal that any transfer made by a senior citizen by way of gift or otherwise, this property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor. The transfer at the instance of the transferor shall be declared void if the transferee fails to maintain the transferor. In the present case, admittedly, respondent No.3 has acted as the minor guardian to the petitioner to safeguard the interest of the minor petitioner then. It is also relevant to note that the partition deed does not establish that there was a condition at the time of transfer in favour of the minor, that basic amenities and basic physical needs of respondent No.3 should be maintained by the petitioner. In the absence of this, respondent No.1 is not empowered to declare the transfer as void at the option of the transferor.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>This aspect makes it very clear that the senior citizen who has transferred the property by way of gift or otherwise subject to a condition that such a condition is mentioned in the document the basic amenities and basic physical needs to be maintained by the transferee, then the petition under the Act would be maintainable and not otherwise. This view is fortified by the judgment of the Full Bench of the Kerala High Court in the case of Subhashini vs. The District Collector, Kozhikode [Air Online 2020 Ker.674], wherein paragraph Nos.28, 29, 52 and 53 it is held as under:<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>\"28. Section 23 does not create or negate any substantive rights; except the one mentioned above and merely provides a procedure for a speedy recovery, to ensure that a deeming fiction is created concerning certain categories of transfer of property, made subject to a condition. The fiction created; on a breach of the specified condition, deems the transfer itself to be vitiated because of fraud, coercion or exercise of undue influence. The transfer of property as spoken of in the provision has to concede to the various transfers spoken of in the T.P Act. The vitiating factors are those available under common law and defined under the Indian Contract Act. Normally the transferor will have to approach the civil courts to enforce his claim to get the transfer set aside. When a remedy is sought before the Civil Court, the normal rules of evidence apply and the adjudication is carried on by a judicial officer.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i><br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>29. \'Transfer of property as defined in the T.P.Act is an inter Vivos transfer and there are several categories of transfers evident from the said Act. The first question we would have to answer is as to whether the transfer of property which could be annulled would take in all such transfers spoken of in the T.P. Act. In considering the above question, we would first emphasize that Section 23(1) speaks of \'transfer by way of gift or otherwise which, with the use of \'otherwise\' in normal circumstances, should take in every such transfer as spoken of in the T.P.Act. However, the Legislature if having such intention could have merely stated \"where any citizens who after the commencement of this Act has transferred his property…\". The very use of the words \'gift or otherwise\' in the provision, according to us, lays bare the intention of the legislature to restrict the transfers covered under the provision; which is the \'intention to the contrary\'</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i><br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>52.<span style=\"white-space:pre\">	</span>We conclude by answering the reference, that the condition as required under Section 23(1) for provision of basic amenities and basic physical needs to a senior citizen has to be expressly stated in the document of transfer, which transfer can only be one by way of gift or which partakes the character of gift or a similar gratuitous transfer. It is the jurisdictional fact, which the Tribunal will have to look into before invoking Section 23(1) and proceeding on a summary enquiry.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i><br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>53.<span style=\"white-space:pre\">	</span>In the facts and circumstances of the case, we are of the opinion that nothing further arises, for us to remand the matter to the Division Bench for consideration of the appeal itself. The document, which is the subject matter of dispute, is a settlement deed wherein there is a reservation of right of residence in the residential building as also to take usufructs from the standing coconut trees in the property. There is no condition as required under Section 23(1) expressly stated in the document. The life interest reserved in the document cannot also lead to such a condition being implied or inferred. There can be no consideration of the circumstances under which the document was executed, as has been attempted by the appellate authority. We hence, dismiss the appeal and restore the order of the Tribunal granting maintenance of Rs.2,500/-. We are quite conscious of the fact that there is an interim order passed granting Rs.5,000/- per month during the pendency of the appeal. The respondent is said to have complied with that order till date. We are of the opinion that what is required is the restoration of the order of the Tribunal in the facts and circumstances, leaving open the remedy of the appellant to approach the Civil Court for enforcement of any rights reserved on her under the document. We specifically restore the order of the Tribunal also in the context of the admission of the appellant that she has other children with whom she is residing. There is a contention raised that she had also resided in an Ashram for a period. If she wishes to claim further maintenance, she could approach the Tribunal in which event, the quantum would have to be proportionately shared by all the children.\"</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>In the instant case, there is no condition satisfying the transferee to provide maintenance and physical needs to respondent No.3 and in the absence of the conditions specified in Section 23, of the Act it cannot be implied that the transferee is under the obligation to provide basic maintenance and physical needs given the Object and Scheme of the Act. Thus, the petition filed by respondent No.3 under sections 4 and 23 of the Act is not maintainable. Accordingly, point framed for consideration is answered in the negative against the applicant/respondent No.3. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>In light of the above, the petition filed under Section 23 of the Act before respondent No.1 by respondent No.3 would not come under the purview of Section 23 of the Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8164b1f78425b72e392c357ca04b88ad.JPG', '42990600aee6e27e1a2659ae8183dc97.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-08', 1, '', '', '2023-06-07 13:28:09', '2023-06-08 03:19:56'),
(3047, 'yXwqTsEUy3ETcZz41cDLHK8Aq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Succession Act. Succession Certificate cannot be issued in respect of immovable property in Karnataka.  Authorities cannot insist on production of Succession Certificate for transfer of khata of the property bequeathed under a Will. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rakesh Aithal Vs Commissioner and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 8605 of 2021 decided on 8 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.G.S. Kamal</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petitioner is before this court seeking issue of writ of mandamus to the respondent No.2 to consider the representation dated 06.06.2020 as per Annexure-K and for a direction to pass orders to transfer the khata in the name of the petitioner in respect of property bearing No.24, II Main, Gokulam South of Kumbarkoppalu, Mysuru. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">2.<span style=\"white-space: pre;\">	</span>It is the case of the petitioner that the subject property originally belonged to one Smt. Lalitha, - She having purchased the same under a deed of sale dated 05.09.1986 and that name of Smt.Lalitha has been mutated in the revenue records maintained by respondent No.2 and khata in respect of the said property has been maintained in the name of said Smt.Lalitha.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">8.<span style=\"white-space: pre;\">	</span>It is not in dispute that the subject property absolutely belonged to Smt.Lalitha and the khata of the same was standing in the name of said Smt.Lalitha. It is also not in dispute that the property tax was being paid in respect of the subject property in the name of Smt.Lalitha. The petitioner has admittedly produced the title deed as well as tax paid receipt as requisitioned by the respondent No.2.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>As regards insistence of respondent authorities calling upon the petitioner to produce succession certificate is concerned, it is necessary to note that the matter of issuance of a succession certificate is governed under Section 370 of the Indian Succession Act, 1925 which is extracted hereunder: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>\"370. Restriction on grant of certificates under this Part.—</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(1)<span style=\"white-space: pre;\">	</span>A succession certificate (hereinafter in this Part referred to as a certificate) shall not be granted under this Part with respect to any debt or security to which a right is required by section 212 or section 213 to be established by letters of administration or probate: Provided that nothing contained in this section shall be deemed to prevent the grant of a certificate to any person claiming to be entitled to the effects of a deceased Indian Christian, or to any part thereof, with respect to any debt or security, by reason that a right thereto can be established by letters of administration under this Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (2)<span style=\"white-space: pre;\">	</span>For the purposes of this Part, “security” means—</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a)<span style=\"white-space: pre;\">	</span>any promissory note, debenture, stock or other security of the Central Government or of a State Government;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b)<span style=\"white-space: pre;\">	</span>any bond, debenture, or annuity charged by Act of Parliament [of the United Kingdom] on the revenues of India;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(c)<span style=\"white-space: pre;\">	</span>any stock or debenture of, or share in, a company or other incorporated institution;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(d)<span style=\"white-space: pre;\">	</span>any debenture or other security for money issued by, or on behalf of, a local authority;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> (e)<span style=\"white-space: pre;\">	</span>any other security which the [State Government] may, by notification in the Official Gazette, declare to be a security for the purposes of this Part\".</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>From the perusal of Section 370 it is clear that a succession certificate can be sought and granted only in respect of \"Debt\" or \"security\" and not in respect of any immovable property. Though the term \"debt\" and \"security\" is not defined under the Act, the provisions of aforesaid section would indicate same to be of movable in nature. The Division Bench of Kerala High Court in the case of P.K.Vishalakshi vs. Bank of India reported in AIR 2006 Kerala 255 while dealing with refusal of grant of certificate under Section 372 of the Succession Act in respect of immovable property has held that refusal to grant such certificate in respect of immovable property was not improper. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>Since the section 370 also refers to Sections 212 and 213 of the Act with regard to issuance of letter of administration and letter of probate same requires to be considered in the light of the facts of the present case. Section 212 operates in respect of property of a person dieing intestate requiring letter of administration to be obtained from a court of competent jurisdiction. The said section is not applicable to the facts of present case as there is a \'Will\'. As regards Section 213 is concerned requiring obtaining of probate in respect of a Will under which a right is claimed, the said Section is applicable only in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina in respect of properties that are situated within the territories falling under Section 57(a) and (b) of the Act namely Presidency areas. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space: pre;\">	</span>The Apex Court in the case of Clarence Pais Vs Union of India reported in AIR 2001 SC 1151 dealing with issue requiring obtaining probate of a Will has held that a probate will not be required to be obtained by a Hindu in respect of a Will made outside the those territories or regarding the immovable properties situated outside those territories falling under Section 57(a) and (b) of the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>Thus, in the instant case the petitioner is seeking registration of khata in respect of the property claiming to have been acquired by him in terms of a Will executed by Smt.Lalitha. The immovable property in respect of which Will is stated to have been executed is situated in Mysuru, which does not fall within territories mentioned under Section 57(a) and (b) of the Act. In that view of the matter there is no requirement of obtaining probate of the said Will either. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>Since, the Succession Certificate cannot be issued in the case of immovable property and can only be obtained in respect of \"debts\" and \"securities\" under the provisions noted above, the insistence by the respondents for production of succession certificate is misconceived and unwarranted.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 16.<span style=\"white-space: pre;\">	</span>In view of the petitioner having complied with the requirement of law by making an application for registration of khatha by producing title deed, receipt for having paid the tax and the Will executed by Smt.Lalitha, which is the only requirement contemplated under law, there is no reason or justification for the respondent authorities to decline to consider the representation/application of the petitioner for transfer of khata. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space: pre;\">	</span>Needless to mention that authorities would be justified to decline consideration of application for registration of katha if there is/are any objection/s or claim/s made by any person/s claiming to be legal representative/s or successor/s of said Smt.Lalitha, and untill such objection/s and claim/s are adjudicated and determined by a competent court of law. Which is not the case at hand.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 18.<span style=\"white-space: pre;\">	</span>For the aforesaid reasons, the petition deserves to be allowed.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> Writ Petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3a1380c9387cfd13f4577387ae1bba33.JPG', '30f6f84611d341d2ef0a8f8e8eaeaf2c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-08', 1, '', '', '2023-06-07 13:43:32', '2023-06-08 08:34:52'),
(3048, 'dkllsV6yLApcTI0vMBk36ueJD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Service Law. Person ineligible for the post cannot question the appointment of another person to the post since Public Interest Litigation is impermissible in Service matters. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M. David Vs Department of High Education and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Appeal 100234 of 2021 decided on 26 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Sunil Dutt Yadav and Justice Umesh M. Adiga.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The appellant has called in question the validity of the order dated 16.09.2021 passed in W.P.No.36345/2017, whereby the Writ Petition came to be allowed setting aside the appointment of the appellant (respondent No.4 in Writ proceedings) to the post of Associate Professor, Zoology Department with consequential direction to the respondent University to fill up the post of Associate Professor pursuant to the advertisement dated 25.07.2011.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>It is stated that the petitioner coming to know of the disentitlement of respondent No.4 to claim the Scheduled Caste status is stated to have made a representation to the first respondent Government on 26.04.2016.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>The Court had framed the following points for consideration :-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>Whether the person belonging to Scheduled Caste/Scheduled Tribe in one State can be considered as Scheduled Caste/Scheduled Tribe person in the State of his migration for the purpose of employment or education? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>Whether the appointment of the 4th respondent to the post of Associate Professor in Zoology Department in the 2nd respondent University, which was reserved for candidates from the Scheduled Caste category, is proper and sustainable?\"<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>The Court has held that a person who belongs to the Scheduled Caste/Scheduled Tribe category is entitled to the benefits admissible to such category only in the State of origin and not in the State to which he has migrated and accordingly has found that the respondent No.4 admittedly having his origin in the State of Andhra Pradesh and having migrated to the State of Karnataka would not be entitled to seek benefits on the basis of his caste in the State of Karnataka. The Court has relied on the judgment in the case of Bir Singh v. Delhi Jal Board and Others reported in (2018) 10 SCC 312 in arriving at the above conclusion and accordingly has answered point No.1 in negative.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>As regards Point No.2, the Court has rejected the contention of the University that applications were invited from Indian Nationals and accordingly a person belonging to Scheduled Caste category from anywhere could apply and while holding so, has set aside the communication at Annexure-J, whereby the University had affirmed the selection of respondent No.4 and accordingly has allowed the petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>29.<span style=\"white-space:pre\">	</span>Insofar as the contention of the Special Counsel appearing for the respondent State that Validity Certificate ought to have been obtained in terms of Rules 6 and 9 of the Karnataka Scheduled Castes and Scheduled Tribes and Other Backward Classes (Reservation of Appointment, etc.) Rules, 1992. However, there was no such pleading on record before the learned Single Judge and fresh contention regarding the same at this stage ought not to be entertained. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>30.<span style=\"white-space:pre\">	</span>Even otherwise, the proceedings of the University dated 27.02.2012 relating to selection by filling up of backlog vacancies between 15th and 25th of February 2012 specifies \"validation (Sindhutva) of castes in respect of the candidates, who are already working in the University/constituent Colleges amongst the selected once (sic) against the reserved for backlog vacancies are not necessary.\" Though there is a note by the Vice Chancellor that condition may be imposed regarding verification of Caste Certificate as regards those already working in the University, in effect, no such condition has been imposed in the appointment order at Annexure-\'C\' dated 29.02.2012.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 31.<span style=\"white-space:pre\">	</span>The Caste Certificate is issued by the Tahsildar under Section 4A of the Karnataka Scheduled Castes and Scheduled Tribes and Other Backward Classes (Reservation of Appointment, etc.) Act, 1990. The same is preceded by an enquiry satisfying himself regarding the genuineness of the claim made. Any person aggrieved by an order issuing Caste Certificate under Section 4A of the Act, may appeal to the Assistant Commissioner under Section 4B of the Act. If such is the procedure provided under the Act with a procedure for verification under Section 4C and appeal under Section 4D and revision under Section 4F of the Act, the petitioner ought to have sought for cancellation of the Caste Certificate in terms of the procedure prescribed. Rule 3-C of the Karnataka Scheduled Castes and Scheduled Tribes and Other Backward Classes (Reservation of Appointment, etc.) Rules, 1992, further provides that the Caste Certificate issued under Section 4A of the Act shall be valid until it is cancelled. The consequences would then follow once the Caste Certificate is cancelled in terms of the procedure prescribed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>32.<span style=\"white-space:pre\">	</span>Though the respondent No.4 has contended that the selection is on an All India basis and open to Indian Nationals and the UGC Regulations governing such selection would enable the Scheduled Caste from any part of the country to apply, which would have the effect of rendering nugatory contention of the petitioner regarding the respondent No.4 being a migrant and being eligible to claim benefit in Karnataka, such contention is not addressed in light of dismissal of the petition by keeping open rights of the petitioner to initiate appropriate proceedings as per law.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>33.<span style=\"white-space:pre\">	</span>Though detailed arguments have been advanced by the learned counsel for respondent No.4 on the aspect of delay contending that the order of appointment is of the year 2012 and representation has been made by the petitioner for the first time on 14.12.2015, while the petitioner would contend that the caste certificate being a void order, question of delay would not be relevant, such contention is not adjudicated and kept open in light of the manner of disposal of the appeal. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>34.<span style=\"white-space:pre\">	</span>Accordingly, it would not be open for the petitioner to have sought for relief in the present Writ Petition which in effect could have been granted only after cancellation of the Caste Certificate.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>36.<span style=\"white-space:pre\">	</span>Accordingly, the order of learned Single Judge dated 16.09.2021 passed in W.P. No.36345/2017 is set aside and the Writ Appeal is disposed off in terms of the above discussion.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c4d99095e39de2db7222e6634f092fe9.jpeg', '34412d1d98e1edf78882f5d269a8f857.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-08', 1, '', '', '2023-06-07 15:51:03', '2023-06-08 12:31:17');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3059, 'aFC0UtUF9VOrAODWsEMnWn9v0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'We are living in different times, of terrorism. ‘’Bail is a rule & jail is an exception’’ has spent itself when it comes to acts of terrorism. Karnataka High Court reject bail plea of accused involved in ‘K.G.Halli Riots’. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Imran Ahmed Vs National Investigating Agency.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.A. 124 of 2023 decided on 29 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S Dixit and Justice Pradeep Singh Yerur.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>BRIEF FACTS OF THE CASE:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space: pre;\">	</span>On the eventful night of 11.08.2020, riots broke out in the K.G.Halli area of Bangalore City; the miscreants had attacked the local police station and had set it on fire; there was extensive damage to the private & public property; the government & private vehicles were ransacked; members of the public were terrorized; police officials who could have run for saving their lives & limbs, held the ground despite being attacked with stones, iron rods, wooden sticks, ‘improvised petrol bombs’ and such other weapons. Ultimately, the police had to resort to lathi charge, and firing too to dispel the organized offenders. The incident with enormous infamy, came to be known as ‘K.G.Halli Riots’. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">(ii)<span style=\"white-space: pre;\">	</span>Several criminal cases came to be registered against the miscreants huge in number, for the offences punishable under sections 143, 147, 148, 353, 332, 333, 436, 427 & 149 of Indian Penal Code, 1860 and under section 4 of the Prevention of Damage to Public Property Act, 1984 (hereafter ‘1984 Act’). Of these cases, Crime Nos.227 of 2020, 228 of 2020 & 229 of 2020 are prominent. On 17.8.2020, after obtaining approval of the competent authority and permission from the learned XI ACMM, Mayo Halli, Bangalore City, other charging provisions namely sections 15, 16, 18 & 20 of the Unlawful Activities (Prevention) Act, 1967 (hereafter ‘1967 Act’) were added in Crime No.229 of 2020. As many as 181 persons were accused and of them, 141 including a juvenile came to be arrested; 12 were cited as absconding and one had died during police firing.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>We have heard the learned counsel appearing for the appellant and the learned Spl. Public Prosecutor appearing for the respondent. We have perused the records and adverted to relevance of the Rulings cited at the Bar. We decline to grant indulgence in the matter for the following reasons:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>A.<span style=\"white-space:pre\">	</span>BRIEF FACTS OF THE CASE AS EMANATING FROM THE RECORDS:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (a)<span style=\"white-space:pre\">	</span>The D.G.Halli riots which gave a sort of infamy to the garden city of Bangalore were perpetrated in a gruesome way on the night of 11th of August 2020; not only private & public property were extensively damaged, but the Police Station itself was set ablaze and Police Personnel on duty were brutally attacked; this attack was not by fists but by dangerous weapons including ‘improvised petrol bombs’; added, such attack was not by a few hooligans but it was by a huge gang who had gathered at the spot very swiftly and accomplished the acts of ‘dastardly terrorism’ what was commonly intended; the swiftness of gathering, the hugeness of its size (500- 600), the enormity of the terror generated, the shortness of the duration of perpetration and the hugeness of loss to property make out a prima facie case for repelling the contention of the accused that all that had happened was at the spur of moment and as a reaction to a condemnable facebook post; the post was condemnable, cannot be disputed in the least. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b)<span style=\"white-space:pre\">	</span>It is not a case of grave and sudden provocation; everything was meticulously preplanned and accordingly, was executed, to say the least. The fact that despite police warning through loudspeakers, the perpetrators did not dispel till after the police were perforced to resort to firing left with no other alternative, which eventually resulted into loss of a life. The NIA being a special investigating agency having investigated the matter has collected wealth of evidentiary material and filed the charge sheet on 5.2.2021, for the offences punishable under sections 143, 147, 148, 353, 333, 332, 436, 427, 34 read with section 149 of IPC, sections 15, 16, 18 & 20 of 1967 Act and section 4 of the 1984 Act; a bare perusal of these sections repels the contention that the offences are not grave; the way offences have been perpetrated cannot be expressed without prefixing the superlatives to these ‘gruesome and heinous’ organized acts.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>B.<span style=\"white-space:pre\">	</span>AS TO MAINTAINABILITY OF SUCCESSIVE BAIL PETITIONS & THEIR LIMITATIONS:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (a)<span style=\"white-space:pre\">	</span>The vehement submission of learned counsel for the appellant that the filing of successive bail applications is not barred by law, is true; if there is some new material or a new circumstantial change, it is open to the accused to move a fresh bail application. In support of his submission, he rightly banked upon a Three Judge Bench decision of the Apex Court in KALYAN CHANDRA SARKAR, supra, wherein at paragraph 20, the following observations occur:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i> “...The decision given by a superior forum, undoubtedly, is binding on the subordinate fora on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application…”</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> We have no quarrel with the proposition of law canvassed, although a bit broadly than what has been laid down in the said decision. Fairly enough, learned SPP appearing for the NIA did not dispute the proposition, although he pointed out its inherent limitations, which we discuss in due course. To invoke the above proposition, the accused detenue has to demonstrate that the ‘new material’ or ‘changed circumstance’ pressed into service has the propensity, if not the effect of diluting the prima facie findings recorded in the earlier round of litigation. He has to probabalize a strong case that, had the so called ‘new material‘ or circumstance been adverted to, by the court in the earlier petition, the outcome of proceedings would have been beneficially different to the accused-detenue. In other words, it is not that every new material produced or every arguable change of circumstance would automatically entitle the accused to the grant of bail.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b)..Thus there is a specific finding founded on cogent material as to inculpation of the accused.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>D.<span style=\"white-space:pre\">	</span>AS TO THE DOCTRINE OF PRESUMPTION OF INNOCENCE & THE LIMITATIONS OF ITS INVOCABILITY:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(c)<span style=\"white-space:pre\">	</span>We are in agreement with the vehement submission of learned SPP that all other contentions urged by the appellant/accused are miles away from the delineated ratio laid down in KALYAN SARKAR supra and therefore, need not be re-examined by this court. An argument to the contrary would virtually amount to seeking review of the judgment whereby the Co-ordinate Bench had dismissed the subject Criminal Appeal filed by the appellant herein, earlier. Learned SPP is more than justified in contending that in serious matters like this wherein after investigation the Charge Sheet has been filed by the specialized Investigating Agency, this court should keep away from indulgence especially when the Co- ordinate Bench has affirmed Trial Judge’s order declining bail; he draws attention of the court to each of the pages of that order which has discussed in a great detail the evidentiary material that prima facie shows the involvement of this accused & others in the alleged offences. The NIA after investigation has placed on record abundant material such as the videographs & photographs of the incident, the mobile phone call records, mobile tower records, weapons used, the statement of eye witnesses including injured police officials, etc., that prima facie demonstrates that the appellant-accused was an active participant in the said incident, that was like a nightmare to the city life. The new material pressed into service by the accused does not have a re-assessment of findings recorded by the Co-ordinate Bench; that order has been affirmed by the Apex Court in the subject SLP. The fact that the appellant had not filed any SLP against the said order unlike other accused, makes no difference. We remind ourselves that what is being heard is not the Review Petition but a successive Bail Petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>E.<span style=\"white-space:pre\">	</span>AS TO ‘BAIL IS A RULE AND JAIL IS AN EXCEPTION’, ITS LIMITATIONS & INVOCABILITY:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a)<span style=\"white-space:pre\">	</span>The Apex Court speaking through Justice Krishya Iyer in GUDIKANTI NARASIMHALU vs. PUBLIC PROSECUTOR, AIR 1978 SC 429 evolved a lenient norm of Bail Jurisprudence ‘Bail is a rule & jail is an exception’; that was decades ago and in a case that involved offences punishable under the provisions of Macaulay’s Code i.e., IPC, 1860; terrorism & terrorists, were the subject matter with which the novels were composed. Much water has flowed under the bridges and we are living in different times; every daily newspaper will have some report or photograph about the terrorist acts. Legislative changes have been brought about to several penal statutes. Liberty of an individual as constitutionally guaranteed is important; however, what is even more important is, the safety of civil society. It hardly needs to be reiterated that the interest of an individual cannot march over the collective interest of the society. The writings of the jurists since centuries say this and Apex Court rulings in this regard galore in the law reports. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(b)<span style=\"white-space:pre\">	</span>Almost all the norms in a legal system, be it civil or criminal, are relative; they are bound to the Society’s Calendar. With ceaseless run of Time, these norms undergo change in their texture & colour for retaining their relevance as a living law of the people. \"The old order changeth, yielding place to new, And God fulfils Himself in many ways, Lest one good custom should corrupt the world…” poetically said Lord Alfred Tennyson (1809-1892) in ‘The Passing of Arthur’. Norms of the kind cannot be chanted like mantra or slogans, in every bail petition out of the contextual circumstance. Etymology of a norm is ever the arbiter of its worth. The norms which govern behaviour of individuals ordinarily cannot transcend the social conditions that obtained when they were evolved. Added, their efficacy level and invocability potential do not remain constant; variable, they are. All this cannot be lost sight of by the courts. Otherwise, invoking   such   principles   to   the   sole benefit of an accused detenue, involved in heinous offences, may result into a huge ‘law & order’ issue, and also cause a massive detriment to the societal interest.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(c)<span style=\"white-space:pre\">	</span>We are not much impressed with Mr.Tahir’s invocation of the oft quoted dicta that ‘Bail is a rule and jail is an exception’. It would not much come to the aid of his client and reasons for this are not far to seek: firstly, such a dicta has to remain miles away when the class of offences which the accused is ascribed of, arise under a special statute of great significance, like the one at hands; secondly, the Parliament in its accumulated wisdom has enacted the clauses in the 1967 Act that severely restrict the claim for grant of bail; thirdly, the statute also enacts a ‘negative burden’ clause, which places the onus on the shoulders of accused, much in variance with the normal rule i.e., the burden of proof lies on the prosecution. For invoking such a negative burden, the prosecution initially has to discharge its onus, is true, but it is beside the point. As to negative burden what a Co-ordinate Bench of this Court in a matter arising under the very 1967 Act had observed, needs to be profitably noticed. That was in ASIM SHARIEF vs. STATE BY NIA3, wherein para 24 reads as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“24. …. It is important to note that in case of offence invoked under the special enactment the burden is on the accused in terms of special provisions contained in Sec.43-D(5) of the UPA Act to demonstrate that the prosecution has not been able to show that there exist reasonable grounds to show that the accusation against the accused is prima facie true. …This Court has to take note of the gravity of the offences alleged against the appellant and also severity in its nature and chance of the appellant fleeing away from justice”.</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Similarly, while treating a bail petition under the provisions of 1967 Act, what the Apex Court said is of immense importance. In NIA vs. ZAHOOR AHMED SHAH WATALI4, at para 22, it observed:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“When it comes to offences punishable under special enactments such as the 1967 Act, something more is required to be kept in mind in view of the special provisions contained in Sec.43-D of the 1967 Act inserted by Act 35 of 2008 w.e.f. 31.12.2008…”.</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The law declared by the Apex Court coupled with what has been observed by the Coordinate Bench as above, do not lend any scope for the ready invocation of the said principle.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>G.<span style=\"white-space:pre\">	</span>AS TO PRINCIPLE AKIN TO RES JUDICATA IN CRIMINAL PROCEEDINGS:<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>H.<span style=\"white-space:pre\">	</span>We have very carefully considered every aspect of the matter, keeping in mind the sanctity of human rights as recognized by the Apex Court in the light of constitutional guarantees; we are conscious to the possible societal implications should accused of the kind be enlarged from confinement. We are of the considered view that cause of justice would be served more by continuing him in confinement than setting him free. This being said, we hasten to add that the subject case needs to be expeditiously tried since there are several accused persons, who have suffered rejection of their bail petitions and as a consequence, are continuing in judicial custody. They have a Fundamental Right to speedy justice, cannot be lost sight of. In our view, this is a fit case for speedy trial, if possible, on day to day basis. We are also aware of the burden that the learned trial Judge of Special Court shoulders. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In the above circumstances, this Criminal Appeal being devoid of merits, is liable to be dismissed and accordingly, it is.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9b5297af36d747d33b75bc9db6139468.jpeg', '8fbf05d89782a877ec799c5badc897a5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-14', 1, '', '', '2023-06-12 12:34:34', '2023-06-14 10:25:44'),
(3054, 'vmIpaniNPT6cXbKHFx8BJAnvK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Disputes arising out of contract of employment do not fall within the jurisdiction of the commercial court under the Commercial Courts Act, 2015. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sanjay Kumar Vs Elior India Food Services LLP and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 2584 of 2023 decided on 2 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Facts in brief germane are as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The respondent/Elior India Food Services LLP (hereinafter referred to as ‘the firm’ for short) employs the petitioner under an employment agreement on 26-10-2016. The firm later designates the petitioner as partner and minor partner with a particular share in the firm. The firm owing to certain omissions and commissions on the part of the petitioner initiates inquiry by issuance of a charge sheet on 10-05-2022. Calling upon the said proceedings, the petitioner files a Commercial Arbitration Application in Com.AA.No.88 of 2021 invoking Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’ for short) in furtherance of an arbitration clause in the employment agreement before the Commercial Court on 13-05-2021. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>During the pendency of the proceedings invoked by the petitioner under Section 9, the petitioner was terminated from service by the firm. At that stage, on 08-06-2021, the petitioner invokes arbitration under Section 21 of the Act and issues a notice to the firm. During the pendency of further proceedings under Section 21 of the Act, the application under Section 9 of the Act filed before the concerned Court comes to be dismissed. The petitioner then files a commercial appeal before this Court in Com.A.P.No.161 of 2021 which also comes to be dismissed by an order dated 22-10-2021 by a Division Bench affirming the order passed by the concerned Court in a case that was filed by the petitioner invoking Section 9 of the Act. The petitioner did not challenge the said order passed by the Division Bench of this Court. Therefore, a three member Arbitral Tribunal comes to be constituted in furtherance of clause 24 of the Arbitration Clause under the Employment Agreement.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>To consider the aforesaid submission of the petitioner it is germane to notice certain provisions of the 2015. Section 2 deals with definitions. Section 2(b) defines a Commercial Court to mean a Commercial Court constituted under sub-section (1) of Section 3. Section 2(1)(c) which forms the fulcrum of the issue in the lis defines what is commercial dispute. Section 2(1)(c)(i) defines commercial dispute inter alia to mean ordinary transactions of merchants, bankers, financiers including enforcement and interpretation of documents. Clause (xviii) of sub- section (c) of Section 2(1) defines a commercial dispute to be arising out of agreements for sale of goods or provision of services.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>The learned counsel for the petitioner has contended that the dispute that is brought before the Arbitral Tribunal nowhere comes within the meaning of Section 2(1)(c) of whatever clauses they would be. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>The learned senior counsel appearing for the respondent would submit that agreement for sale of goods or provision of services, would be commercial dispute. The dispute in the case at hand arises out of Employment Agreement between the firm and the petitioner as it is an agreement for provision of services of the petitioner and, therefore, it becomes a commercial dispute.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>The afore-quoted employment contract between the parties for long term incentive plan in furtherance of the Employment Agreement, that is entered into indicating the conditions and nuances of work by the petitioner in the firm. The long term incentive plan is indicated to be applied to the petitioner at a particular sum, for particular action, by the petitioner, in favour of the firm. Therefore, it is an incentive plan that is generated, foundation of which is the employment contract between the parties. The two are inseparable. Arbitration clause is found in the employment agreement. The percentage of amount for payment of incentive is indicated in the Employment Agreement. Therefore, the issue now, would be whether, an Employment Agreement would come within the meaning of Section 2(1)(c)(xviii) of the 2015 Act, for the agreement to become a commercial dispute.   Interpretation of whatever nature that can be placed to the definition of commercial dispute, as obtaining under Section 2(1)(c)(xviii) will not lead to the subject agreement, to become an agreement for services, as obtaining under the afore-quoted provision. The provision relates to agreements of sale of goods or provision of services. They cannot be read in isolation. A pure and simple employment contract cannot be given a colour of a commercial dispute by dressing it to be a provision of services.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>If every Employment Agreement of the kind that is the subject matter in the case at hand is brought within the ambit of commercial dispute, it would then be opening a pandoras’ box or will be opening flood gates of litigation before the commercial Court/s that would clog the said Court. This in effect would defeat the very reason why the commercial Court was constituted.   The view of mine, in this regard, is fortified by the judgment of the Apex Court in the case of AMBALAL SARABHAI ENTERPRISES LTD. V. K.S. INFRASPACE LLP1 where the Apex Court interprets what is and what could be a commercial dispute within several enumerations under Section 2(1)(c) of the Act. The Apex Court has held as follows:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>8.<span style=\"white-space:pre\">	</span>Though such rival contentions are put forth by the learned Senior Advocate on either side, these aspects cannot be dealt with in abstract. Instead the nature of the dispute and the jurisdiction to try the same is to be reflected in the suit itself since in a civil suit the pleadings, namely, averments in the plaint would at the outset be relevant to confer jurisdiction. Hence before adverting to the other aspects it would be necessary to carefully examine the plaint. The plaintiff has in detail referred to the nature of the transaction between the appellant and the respondents herein. In Para 5 thereof the detail of the land bearing R.S. No. 122 corresponding to City Survey Nos. 1101 and 1100/1 having land area of 9207 sq m at Mouje Subhanpura Reg. District, Vadodara is referred. Further the schedule of the property is indicated in Para 6 and reference is made to the Memorandum of Understanding where again the reference is made to the land. It is averred therein that it would be the total responsibility of Respondent 1 herein (Defendant 2 in the suit) to change the land use as well as to pay the amount that may be required for the permission. The amount to be paid as premium is referred and the right of the plaintiff to secure the mortgage deed in view of the terms of the MoU is stated. In the entire plaint there is no reference to the nature of the land or the type of use to which it was being put as on the date of the agreement to sell/sale deed/memorandum of understanding or as on the date of the suit.</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>10.<span style=\"white-space:pre\">	</span>Be that as it may, the learned Senior Advocates on both sides have sought to rely on the legal position decided by the various High Courts in the absence of the pronouncement of this Court. The learned Senior Advocate in that regard have referred to the various decisions on the same point. However, we do not find it appropriate to refer to each of them and over burden this order since we notice that the High Court in fact has referred to various decisions while deciding the instant case and has thereafter arrived at its conclusion. The discussion as made by the High Court with reference to the various decisions is also justified. In that view, we would refer to the    decision of a Division Bench in Jagmohan Behl v. State Bank of Indore [Jagmohan Behl v. State Bank of Indore, 2017 SCC OnLine Del 10706] relied on by the learned Senior Advocate for the appellant. In that regard, it is noticed that in the said case on taking note of the provision contained in Section 2(1)(c)(vii) of the CC Act, 2015 it is held that the dispute involved therein would constitute a commercial dispute and the expression “arising out of” and “in relation to immovable property” should not be given the narrow and restricted meaning and the expression would include all matters relating agreements in connection with the immovable properties. The said conclusion reached was in a circumstance where the immovable property in question was undoubtedly being used for a trade or commerce and it was held so when the claim in the suit is for recovery of rent or mesne profit, security deposit, etc. for the use of such immovable property.</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>11....It is the case on behalf of the original plaintiff that as the original Defendant 1 has failed to provide any infrastructural facilities and develop the plots and therefore, a civil suit for specific performance of the agreement has been filed. There are other alternative prayers also. Therefore, it cannot be said that the agreement is as such relating to immovable property used exclusively in trade or commerce. It is the case on behalf of the original plaintiff that as in clause (vii) of Section 2(c), the phraseology used is not “actually used” or “being used” and therefore, even if at present the plot is not used and even if it is likely to be used even in future, in that case also, Section 2(c)(vii) shall be applicable and therefore, the Commercial Court would have jurisdiction. The aforesaid has no substance. As per the cardinal principle of law while interpreting a particular statute or the provision, the literal and strict interpretation has to be applied</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>14.<span style=\"white-space:pre\">	</span>In that view it is also necessary to carefully examine and entertain only disputes which actually answers the definition “commercial disputes” as provided under the Act. In the instant case, as already taken note neither the agreement between the parties refers to the nature of the immovable property being exclusively used for trade or commerce as on the date of the agreement nor is there any pleading to that effect in the plaint. Further the very relief sought in the suit is for execution of the mortgage deed which is in the nature of specific performance of the terms of Memorandum of Understanding without reference to nature of the use of the immovable property in trade or commerce as on the date of the suit. Therefore, if all these aspects are kept in view, we are of the opinion that in the present facts the High Court was justified in its conclusion arrived through the order dated 1-3-2019 [K.S. Infraspace LLP v. Ambalal Sarabhai Enterprises Ltd., 2019 SCC OnLine Guj 1926] impugned herein. The Commercial Court shall therefore return the plaint indicating a date for its presentation before the Court having jurisdiction.”</i><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The Apex Court holds that issues which not relate to commercial disputes are filed before the commercial Courts merely because of high value and with the intention of seeking early disposal. Such issues brought before the commercial Court should not be entertained, as it is not intended to bring in every dispute before the commercial Court by the law makers. The Apex Court further holds that the excluded class of litigation will, in any event be entertained, in the ordinary civil Courts wherein the remedy always existed to add, does always exist.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17... The claim of the petitioner is the amount as indicated in the notice quoted hereinabove. Therefore, what the petitioner claims is, the incentive that was assured in the agreement. The agreement is an offshoot of the Employment Agreement. Therefore, it cannot but be held to be a contract of employment or a contract of incentive. It is a money claim arising out of an Employment Agreement. Therefore, the submission that commercial Court gets jurisdiction in terms of the afore-quoted provision is unacceptable, in the light of what the Apex Court has held in AMBALAL (supra).<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>Insofar as the submission of the learned senior counsel for the respondent that the petitioner himself chose the commercial Court earlier, is concerned, it is no doubt true that the petitioner invoked the jurisdiction of the commercial Court by filing an application under Section 9 of the Act. The commercial Court dismisses the claim. The petitioner then challenges the dismissal by the commercial Court before this Court. This Court affirms the finding of the commercial Court. The petitioner does not take the issue further. The firm then invoked Section 34 of the Act and instituted a commercial suit in Com.S.No.5/2022 before this Court challenging interim award passed by the Arbitral Tribunal on 13-05-2022 quoted supra in the arbitration proceedings. This very argument of jurisdiction of maintainability of the claim of the petitioner before this Court in the commercial side was questioned. The co-ordinate bench of this Court did not go into whether the dispute between the parties would become a commercial dispute within Section 2(1)(c)(xviii) of the Act. Therefore, if the petitioner has invoked a wrong jurisdiction i.e., that of the commercial Court in a dispute, it would not become a commercial dispute, unless it comes within the definition of Section 2(1)(c) and the clauses therein, as it is settled principle of law, no amount of consent of the parties can confer jurisdiction on any Court or Tribunal and it is equally settled principle of law that merely because a party invokes a wrong jurisdiction and a determination is made by the concerned Court without the parties objecting to it, will not clothe such Court with jurisdiction dehors the statute and become binding on any subsequent proceeding before this Court. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>In view of the preceding analysis, I have no hesitation to hold that the dispute between the parties is not a commercial dispute within the meaning of Section 2(1)(c)(xviii) of the Act and therefore, the commercial Court ought not to have entertained the dispute.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space:pre\">	</span>Writ Petition is allowed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd1e9104af37c6cc26cf3d6766d99d8c0.jpeg', '2e64ecedb13212cd371f401bb691cc7f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-10', 1, '', '', '2023-06-09 13:09:59', '2023-06-10 03:22:24');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3055, '6aXeDUnLLQGlC8bBhhAXHxyji', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘’Breach of contract between the protagonists in the agreements cannot be the subject matter to set the criminal law into motion’’. Karnataka High Court quashes criminal proceedings initiated by partner alleging breach of the partnership. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nagulavancha Sridhar Rao and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 22057 of 2021 decided on 2 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Shorn of unnecessary details, facts in brief, are as follows:- </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The 2nd respondent is the complainant and a partner with the 1st petitioner. Petitioners 2 and 3 are roped in for the reason that certain work execution that the 1st petitioner and the complainant sought to undertake was on the site belonging to petitioners 2 and 3. The 1st petitioner and the complainant entered into a deed of partnership at Hyderabad on 26-02-2020. The deed of partnership was for execution of certain works. Remuneration and inflow of capital, inter alia was a part of the partnership deed. After execution of the partnership deed, the 1st petitioner, the 3rd petitioner and the complainant entered into another agreement for execution of work titled as agreement of work execution. The salary fixed under the contract, for execution of work was `2/- lakhs. It appears that the complainant trespassed into the house of the 2nd petitioner who was a senior citizen, which leads the 2nd petitioner to register a crime against the complainant on 26-05-2021. The police on recording the statements of the 2nd petitioner and the complainant submitted a non-cognizable report. When things stood thus, a legal notice is caused by the complainant claiming certain amounts from the hands of petitioners 1 and 3. This is replied to by the recipients of the notice and carrying on further, the complainant seeks to register a crime in Mysore City in Crime No.154 of 2021 narrating incidents between 26-02-2020 and 13-09-2021 for offences punishable under Sections 420, 448, 506 and 34 of the IPC. The police issued notices to the petitioners under Section 41(A) of the Cr.P.C., It is then the petitioners knocked at the doors of this Court in the subject petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">14.<span style=\"white-space:pre\">	</span>What is alleged against the petitioners is, Section 420 of the IPC which deals with punishment for cheating. The ingredients for offences under Section 420 of the IPC. </font></span><font face=\"Calibri, sans-serif\">Section 415 of the IPC mandates that the accused should have lured the victim to part with some property with dishonest intention right from the beginning of the transaction. The transaction between the parties – petitioner No.1 and the complainant, is noted hereinabove. The 1st petitioner cannot be seen to have lured the complainant as it was a partnership deed and deed of execution of work. They are agreements on consensus. Therefore, there can be no question of the accused luring the complainant into the web of ingredients under Section 415 of the IPC. Section 448 of the IPC deals with punishment for house trespass, ingredients of which are found in Section 442 of the IPC. Not a titer of foundation is laid by the complainant in the complaint for alleging offence under Section 448 of the IPC. Even otherwise, Section 448 of the IPC is roped in only as a counterblast to the allegation of house trespass laid by the husband of the 3rd petitioner. If the aforesaid offences are not prima facie present in the facts of the case at hand, permitting further proceedings to continue against the petitioners would be putting a premium on the misuse of criminal justice system by the complainant to achieve his goals of recovery of money, on breach of contract. The Apex Court, in the afore-quoted judgments, has noticed that the growing tendency of cases being filed setting the criminal law in motion, which are in fact pure civil disputes, disputes arising out of breach of contract or proceedings instituted for recovery of money. All the aforesaid kind of cases are always laced with the colour of crime. The afore-quoted are the cases where the High Courts have refused to exercise the jurisdiction under Section 482 of the Cr.P.C., in the facts akin to what is narrated above. Therefore, the Apex Court directs that in cases where the facts reveal that the dispute is purely civil in nature, the Court has to step in and quash the proceedings, more so, in the light of the fact that if the complainant is already before a civil Court seeking recovery of money or has taken steps towards that end. </font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>In the case at hand, the complainant has taken steps towards that end by causing legal notice seeking recovery of money and the submissions of the 2nd respondent in-person is that, he would take steps to knock at the doors of the civil Court seeking recovery of money. If that is so, the impugned proceedings cannot be permitted to be continued in the light of the judgment of the Apex Court in the case of STATE OF HARYANA v. BHAJAN LAL6 wherein the Apex Court has held as follows: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(1)<span style=\"white-space: pre;\">	</span>Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(2)<span style=\"white-space: pre;\">	</span>Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(3)<span style=\"white-space: pre;\">	</span>Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(4)<span style=\"white-space:pre\">	</span>Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(5)<span style=\"white-space:pre\">	</span>Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(6)<span style=\"white-space:pre\">	</span>Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>(7)<span style=\"white-space:pre\">	</span>Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”</i><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Therefore, this becomes a fit case to exercise the jurisdiction of this Court under Section 482 of the Cr.P.C., to take off the Damocles sword hanging on the head of the petitioners, annihilate the very crime registered against them, in order to prevent the issue degenerating into harassment, becoming an abuse of the process of the law and eventually, resulting in miscarriage of justice.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space: pre;\">	</span>Writ Petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c417b143d184366314aa375e7aceda06.jpeg', '86ca751336e6d93eea66ed46b02f5b25.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-12', 1, '', '', '2023-06-09 13:54:06', '2023-06-12 06:24:24'),
(3056, 'CnTjcxvj8LaFUdilC6XfZItbz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'Award of death sentence must be preceded by psychological and physiological evaluation, examination of early and present family background, history of violence and criminal antecedent of the accused\'\'. Karnataka High Court lays down guidelines. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Byluru Thippaiah Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 100170 of 2020 decided on 30 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj and Justice G Basavaraja.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space: pre;\">	</span>The Appellant is before this Court on appeal challenging the order of conviction and sentence passed by the III Additional District and Sessions Judge, Ballari (sitting at Hosapete) in Sessions Case No.5031/2017 dated 03.12.2019. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>By way of the order of conviction, the Appellant was found guilty of an offence punishable under Section 302 of IPC, and by way of order of sentence, the Appellant was sentenced to capital punishment of death penalty for the offence under Section 302 of IPC and directed him to be hung till death. In terms of Section 366 of Cr.P.C. the matter is submitted to this Court for confirmation of sentence. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The case of the prosecution is that the Appellant had married deceased Pakkeeramma 12 years prior to the date of incident. Initially, the relationship between the Appellant and the deceased was cordial, later, he started suspecting the fidelity of his wife and started quarrelling with her by assaulting her physically. Though many elders and neighbours advised the Appellant, the Appellant continued the suspicion and abuse. The Appellant would often say that other than the daughter Rajeshwari the other three children, namely Basamma, Nagaraj @ Rajappa and Pavithra were not born to him, and suspected their paternity. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>It is in that background that the Appellant is alleged to have on 25.02.2017 assaulted Pakkeeramma, her sister Gangamma and the minor children Pavithra, Nagaraj @ Rajappa and Basamma with a chopper in such a manner that 4 of them expired at the spot and Basamma expired on the way to the hospital. The Appellant came out of the house and shouted that he was happy to have chopped his wife and sister-in-law, who are involved in immoral activities and that he has also chopped off three children who were not born to him.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">12.<span style=\"white-space: pre;\">	</span>It is in the background of the above submissions that we have been called upon to appreciate and re- appreciate the evidence on record to arrive at a finding on whether the judgment of the trial Court and the sentence awarded is proper or not.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space: pre;\">	</span>Admittedly, the above matter is one relating to circumstantial evidence. There is no particular eyewitness to the actual incident/crime. There are several witnesses post the crime as regards the conduct of the Appellant but there are, in fact no eyewitnesses to the actual occurrence of the crime. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">14.<span style=\"white-space: pre;\">	</span>The case being one of the circumstantial evidence, it is but required for the prosecution to establish the chain of events as held in SHARAD BIRDHI CHAND SARDA VS STATE OF MAHARASHTRA 1984 (4) SCC 116 to lead to an irresistible conclusion that it is the Appellant who has committed the offence.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>39.<span style=\"white-space: pre;\">	</span>In terms of Section 354(3) of Cr.P.C., it is clear that normally imprisonment for life is to be awarded and only in any exceptional circumstances death sentence is required to be awarded. Section 354(3) of Cr.P.C. reads as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>“354(3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.” </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">40.<span style=\"white-space: pre;\">	</span>The Hon’ble Apex Court in JAGMOHAN SINGH V. STATE OF U.P. (1973) 1 SCC 20, after considering legislative policy came to a conclusion that normal rule is that offence of murder shall be punished with sentence of life imprisonment. The Court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons are required to be recorded in writing before imposing death sentence. Thus, it is only under exceptional circumstances for exceptional reasons and in extreme cases that death sentence could be awarded.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>58.<span style=\"white-space: pre;\">	</span>In the present case, the appellant has been found to be guilty of 5 murders viz., that of his wife, sister-in- law, and 3 minor children. All of whom he had attacked with a chopper and came out of the house covered with blood holding the chopper proclaiming that he has finished of the problem and he is happy to have chopped off the prostitutes and the children. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">59.<span style=\"white-space: pre;\">	</span>In our interaction with the Appellant, he was defiant and stated that he had not committed any offence and he does not know anything about it. To the psychiatrist, he has stated that when he went to home, he saw blood and thereafter complained to the police, when he was arrested. The manner in which the statements have been made indicates that either the appellant to be divorced from reality or of he having no regard for the law. The phycological evaluation rules out the first.   Hence, it can only be the latter which is applicable to the present case.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>62.<span style=\"white-space: pre;\">	</span>The manner in which the offence has been committed by the Appellant is having attacked two women and three children in the house, hacked them and chopped them resulting in multiple injuries being caused to them and the Appellant coming out of the house and proclaiming that he has killed the prostitutes while holding chopper covered in blood. The same would shock the conscience of anybody and has indeed shocked our conscience, despite we having dealt with so many cases of offences relating to murder.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 63.<span style=\"white-space: pre;\">	</span>The above being the aggravating circumstances, when we look for mitigating circumstances, there are none of substance we can find, there is no family left for the Appellant except his daughter. He has in fact destroyed his entire family on the basis of the alleged suspicion and there is none available for the Appellant to reform himself for. Hence, looked at from any angle, despite our attempts to find some mitigating factors or other, we are unable to do so. There was no extreme mental or physical disturbance or extreme provocation for the Appellant to have committed the offence. There is nothing which could indicate that what he has done is as a result of any persistent harassment. There is no any particular justification moral or otherwise that could be given for such an offence. There are no circumstances favoring the Appellant in the present manner. The atrocity of the crime resulting in five deaths including of 3 children below 10 years of age and the brutality with which the same has been committed, leaves us no option but to confirm the order of death sentence passed by the trial Court, which we do with a heavy heart. This in our considered opinion qualifies the test of rarest of rare cases requiring the awardal of death penalty.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">64.<span style=\"white-space: pre;\">	</span>The trial Court has not passed any order as regards the victim compensation which is required to be mandatorily passed in terms of Section 357 and 357A of the Code of Criminal Procedure. Hence separate direction in that regard would have to be issued</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space: pre;\">	</span>Criminal Appeal No.100170/2020 stands dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0ab8c952c7fb9ca3452f167852b1d14a.jpeg', 'eaeb4ddaeede71e41a3d79fd192b4143.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-12', 1, '', '', '2023-06-09 14:37:11', '2023-06-12 03:23:46');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3057, 'hsf6XUDNIPKIYUOdrlX8QjpNg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Disposal of immovable property by Will would not amount to transfer within the meaning of Section 5 of the Transfer of Property Act and hence the prohibition under Section 61 of the Karnataka Land Reforms Act also does not apply. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Venkamma and others Vs Kushala and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 567 of 2013 decided on 1 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M G Uma.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Brief facts of the case are that the plaintiff filed the suit before the trial Court in O.S.No.34/2001 against defendant Nos.1 to 6 seeking partition of plaint schedule properties i.e., ‘A’ schedule properties into seven equal shares by metes and bounds and to allot one such share to the plaintiff and for mesne profit and costs. The schedule \'A\' properties appended to the plaint describes ten items of agricultural properties i.e., various sub-divisions in Sy.Nos.360 and 361. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>It is contended by the plaintiff that defendant No.1 is widow of late Rukmayya Gowda. Plaintiff and defendant Nos.2 to 6 are their daughters. Rukmayya Gowda was registered as an occupant in respect of schedule properties as per the order passed by the Land Tribunal in LRY.No.312/74-75 and 315/74-75. The occupancy certificate was issued in Form No.10 in the name of Rukmayya Gowda. After his death, the plaintiff and defendant Nos.1 to 6 have inherited the plaint schedule properties and the plaintiff is entitled for 1/7th share in the same.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 5.<span style=\"white-space: pre;\">	</span>It is contended that defendant Nos.1 to 4 are in possession of suit schedule properties and when plaintiff demanded her 1/7th share from defendant Nos.1 to 4 by issuing notice dated 09.11.2000, they have issued a reply taking untenable contentions that late Rukmayya Gowda had settled the schedule properties in their favour. It is contended by the plaintiff that late Rukmayya Gowda had no right to execute the settlement deed as the said properties were vested with the Government as on the date of execution of the settlement deed. The said document is concocted and it does not convey any right in favour of defendant Nos.1 to 4. The said document is not binding on the plaintiff. Therefore, plaintiff sought for partition and separate possession of her 1/7th share in the schedule properties.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>On the basis of these pleadings, the Trial Court framed the following issues as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space: pre;\">	</span>Whether the plaintiff proves that the suit properties were belong to Rukmayya Gowda and he died intestate and she and the defendants are the heirs of Rukmayya Gowda to succeed to the suit properties? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Whether the plaintiff proves that she is entitle for partition and separate possession of her 1/7th share in the suit properties?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 3.<span style=\"white-space: pre;\">	</span>Whether the plaintiff proves that the defendant 1 to 4 are in possession of suit property?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 4.<span style=\"white-space: pre;\">	</span>Whether the plaintiff proves that late Rukmayya Gowda had no right to execute the settlement deed and the defendants 1 to 4 have got up the said deed of the settlement?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 5.<span style=\"white-space: pre;\">	</span>Whether the plaintiff is entitle for the mesne profits? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>Whether the plaintiff is entitle for the relief sought for in the suit?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 7.<span style=\"white-space: pre;\">	</span>To what order or decree?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>The appeal was admitted vide order dated 01.12.2016 and following substantial questions of law were formulated for consideration: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>(i)<span style=\"white-space: pre;\">	</span>Whether the Lower Appellate Court has committed any serious legal error in holding that Ex.D1 is hit by Section-21 of the KLR Act by misconstruing the said document as a Settlement Deed; </i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i><br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><i>(ii)<span style=\"white-space: pre;\">	</span>Whether the Appellate Court has not considered the other findings of the trial Court on other issues and thereby committed serious legal error.\"</i></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25.<span style=\"white-space: pre;\">	</span>The suit of the plaintiff for partition and separate possession of the schedule properties was dismissed by the trial Court. But the First Appellate Court by allowing the appeal set aside the judgment and decree passed by the trial Court and decreed the suit by allotting 1/6th share over the schedule properties in favour of the plaintiff. Thus, there is divergent finding of facts. The relationship between the parties is admitted and it is also admitted that late Rukmayya Gowda is the father of the plaintiff and defendant Nos.2 to 6 and husband of defendant No.1. It is also admitted that the schedule properties were the tenanted properties granted in favour of Rukmayya Gowda as per the order passed by the Land Tribunal, Belthangady by granting the occupancy right. As per the substantial questions of law formulated by this Court, the nature of the document-Ex.D1 is to be decided.  It is also to be decided as to whether Ex.D1 is hit by Section 21 of the Karnataka Land Reforms Act, 1961 (for short ‘KLR Act’).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>27.<span style=\"white-space:pre\">	</span>It is well settled proposition of law that the nomenclature of a document will not decide its nature. The intention of the party who executes the document will decide its character.  Whether the document is a settlement deed or a Will is to be considered from the recitals found in the document,  to find out the intention of the executant. A settlement is a transfer of the existing right over the property in favour of another and the donee is required to accept the same.  Generally, such settlement or gift would take effect on execution and registration of the document.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 28.<span style=\"white-space:pre\">	</span>As per Section 2(h) of the Indian Succession Act, Will is a testamentary disposition by the testator in respect of his property which will come into effect only after his death. The testator will have the right to revoke the Will during his life time. Therefore, the peculiar characteristics of a Will is that there must be a bequeath by the testator which should be in respect of his property; it should come into effect only after his death and the testator will have a right to revoke the bequeath during his life time. Even though other characteristics of the Will, will be found in a settlement/gift deed, one of the peculiar characteristics of a Will is postponement of the bequeath till the death of the testator and reserving the right to revoke the Will during his life time. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>29.<span style=\"white-space:pre\">	</span>In the case of MATHAI SAMUEL (supra) a similar question had arisen before the Honble Apex Court to interpret a document as to whether it is a settlement deed or a Will. The Hon\'ble Apex Court referring to its earlier decisions, held in Paragraph No.11 as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>\"11. We have already indicated that exhibit A1 document has both the characteristics of a settlement and a testamentary disposition. Let us examine the basic and fundamental difference between a testamentary disposition and a settlement. Will is an instrument whereunder a person makes a disposition of his properties to take effect after his death and which is in its own nature ambulatory and revocable during his lifetime. It has three essentials:</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i> 1)<span style=\"white-space:pre\">	</span>It must be a legal declaration of the testator’s intention;</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>2)<span style=\"white-space:pre\">	</span>That declaration must be with respect to his property; and</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>3)<span style=\"white-space:pre\">	</span>The desire of the testator that the said declaration should be effectuated after his death.\" </i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Therefore, if a document satisfies these three essential characteristics, then the document is said to be a Will. On the other hand, if there was disposition of a property voluntarily without consideration by a person called donor, which was accepted by the person in whose favour the bequeath is done, called the donee, which would come into effect immediately. Therefore, the Hon\'ble Apex Court held that the real and the only reliable test to find out whether the document is a Will or a Gift is to find out as to whether the disposition amounts to transfer of interest in the praesenti or it intents to transfer the interest in the property only on the death of the executant.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>31.<span style=\"white-space:pre\">	</span>When Ex.D1 is considered as a Will, it has to be considered  as  to  whether  execution  of  this  document  is surrounded by any suspicious circumstances. As already stated, Rukmayya Gowda specifically stated that he is having six daughters and wife who are named therein. He states that his five daughters are already married but three of them are residing in their respective matrimonial houses, whereas, defendant Nos.2 and 3 are residing with him in his house along with their spouses. Defendant No.4 is a minor, aged 14 years and still under the care and custody of her mother- defendant No.1. It is also stated that Rukmayya Gowda had already paid cash of Rs.5,000/- to his other daughters in lieu of the properties. The reason assigned for bequeathing the schedule properties only in favour of defendant Nos.2 to 4 are explicitly stated and it sounds reason. I do not find any suspicious circumstance to doubt the genuinity of the document.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>32.<span style=\"white-space:pre\">	</span>The next question arises as to whether the bequeath of schedule properties under Ex.D1 is hit by Sections 21 or 61 of the KLR Act. Section 21 of the KLR Act prohibits sub-division, sub-letting or assignment of any interest over the property. Section 61 of the KLR Act provides restriction on transfer of land of which tenant has become an occupant. Admittedly, Rukmayya Gowda was the tenant who was conferred with occupancy right over the schedule properties. It is not in dispute that at the time of executing Ex.D1, Rukmayya Gowda was not yet conferred with the occupancy right but he had already submitted Form No.7, which was pending consideration before the Land Tribunal. There is reference to this position in Ex.D1. What is restricted under Section 61 of the KLR Act is transfer of the land by sale, gift, exchange, mortgage, lease or assignment. However, it is made clear that the land may be partitioned among members of the holder\'s joint family. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>33.<span style=\"white-space:pre\">	</span>Now the question arises as to whether bequeathing the schedule properties in favour of defendant Nos.2 to 4 under Ex.D1 is hit by either Sections 21 or 61 of the KLR Act. Even though there is specific reference to various kinds of transfer such as sale, gift, exchange, mortgage, lease or assignment, there is no reference to the Will in the Sections.  Similar question had arisen before this Court as well as before the Hon\'ble Apex Court in the case of KORAGAPPA GOWDA (supra), the Court categorically held in paragraph No.10 as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>\"10. Disposal of immoveable property by Will would not amount to a transfer within the meaning of Section 5 of the T.P. Act. This question came up before a Division Bench of the Madras High Court in MAHABOOB SIRFRAX VANTH SRI RAJAH PARTHASARATHY APPARAO ZAMINDAR OF BHADRACHALAM vs SRI RAJA VENKATADRI APPA RAO AND OTHERS. That was a case of the right of the testatrix to make a Will of a fund in Court which she had laid a claim. Commenting upon the nature of rights under the Will vis-a-vis Transfer of Property Act, it is held that: “The Transfer of Property Act applies only to alienations inter vios and has no application to disposal of property by will.” </i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Thus, disposal of immovable property by Will would not amount to transfer within the meaning of Section 5 of the Transfer of Property Act, 1882. Since the language of Section 61 of the KLR Act is very clear and unambiguous and since there is no restriction on transfer of land by way of a Will and since the disposition of property takes place posthumously after the death of the testator, which is different from the transfer under sale, gift, exchange, mortgage, lease or assignment, it was held that transfer of interest over the land by way of Will is not hit by Section 61 of the KLR Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>34.<span style=\"white-space:pre\">	</span>Relying on the decision in the case of KORAGAPPA GOWDA (supra), this Court again in the case of C.C. DEVASIA VS. THE KARNATAKA APPELLATE TRIBUNAL & ORS6, recorded the finding that a Will cannot be said to be a transfer or an assignment since on the execution of the Will nothing passes on to the legatee and the testator can always revoke a Will and it comes into force only after the death of the testator. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>35.<span style=\"white-space:pre\">	</span>In the case of JOSEPH ALBERT LEWIS (supra), this Court considering several other decisions of the Hon’ble Apex Court and this Court, held that the transfer of agricultural land by tenant with occupancy rights is permissible only in favour of one of the heirs, who would be entitled to claim partition of land and not others having regard to definition of the words - \'family\' or \'joint family\'. The Court considered the embargo on transfer of the right for a specified period, held that since even the partition is permitted under Section 61 of the KLR Act amongst the members of the joint family, it would not come in the way of bequeathing under Will in favour of a member of the joint family as defined under the KLR Act.  The word \'family\' is defined under KLR Act under Section 2(12) to mean, the spouse, sons, unmarried daughters, divorce person, etc. In the present case, admittedly defendant Nos.2 and 3 were married daughters when the Will was executed but it is to be borne in mind that Rukmayya Gowda was not having any male issues. Plaintiff and defendant Nos.2 to 6 are his daughters. Even though defendant No.4 was minor when Ex.D1 was executed, as per the plaint averments, she is already married at the time of filing the suit. Defendant No.1, the wife of Rukmayya Gowda was aged 71 years at the time of filing the suit and she died during the pendency of the Regular Appeal. Under such circumstances, the right of defendant Nos.2 to 4 under the Will - Ex.D1 cannot be questioned simply because they are married daughters of Rukmayya Gowda. The intention of the legislator in creating an embargo on transfer of the tenanted property after conferment of occupancy right is to restrict the entry of strangers over the property. When Section 61 of KLR Act permits partition amongst the co-sharers, while restricting the transfer of property, bequeathing by way of a Will in favour of some of the sharers cannot be termed as a transfer.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>36.<span style=\"white-space:pre\">	</span>The Hon’ble Apex Court in the case of JAYAMMA VS. MARIA BAI DEAD BY PROPOSED LRs AND ANOTHER7, made the fine distinction between the transfer by way of a Will to a person who is the member of the family and to a person who is not a member of the family to hold that the legislative intent to create an embargo on transfer of the land either under Section 21 or under Section 61 of the KLR Act is to guard that the land should not be allowed to go to the hands of a stranger to the family. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>37.<span style=\"white-space:pre\">	</span>In view of the discussions held above, it is to be held that Ex.D1 is not a settlement deed as the nomenclature suggests. But it is a Will as to be made out from the intention of the testator. Since Ex.D1 was executed by Rukmayya Gowda in favour of three of his married daughters excluding the other three married daughters, is not hit by either Section 21 or Section 61 of the KLR Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>38.<span style=\"white-space:pre\">	</span>The trial Court after considering the oral and documentary evidence placed before it, came to the conclusion that Ex.D1 is a Will and the plaintiff is not entitled for  the  relief  of  partition  and  separate  possession  of  the schedule properties. Accordingly, the suit was dismissed. The First Appellate Court on re-appreciation of the materials on record, came to the conclusion that Ex.D1 is not a Will but it is a settlement deed. To arrive at this conclusion, the only reasoning given by the First Appellate Court is as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>\"In the present case on perusal of Ex.D1, it clearly reveals that documents executed (Ex.D1) by late Rukmayya Gowda is Settlement Deed and it is not Will. Thus the same is hit by Section 21 of K.L.R Act.\" </i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>39.<span style=\"white-space: pre;\">	</span>There is no discussion with regard to the intention of the testator and there is no reference to the recitals found in Ex.D1 to form an opinion that it is a settlement deed and not a Will. Therefore, I am of the opinion that the finding recorded by the First Appellate Court is perverse, which call for interference by this Court. Thus, I am of the opinion that the substantial questions of law are to be answered in favour of the appellants and against the plaintiff-respondents.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space:pre\">	</span>The appeal is allowed with costs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a83f4932a17ddcf4e8736dcb71a8d89d.JPG', 'f91ddccae63452931a08a8cb15eb6d1a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-12', 1, '', '', '2023-06-09 15:44:37', '2023-06-12 08:30:01'),
(3060, 'XCqxaQXDtd29M7OyfP8UlGvTz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Wakf Board has no power to issue a corrigendum to the list of wakfs published in the gazette under Section 5(2) of the Wakf Act, 1954. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nishat Kasar and others vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. 23385 of 2011 decided on 2 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>On 01.04.1965, a gazette notification was issued under Section 5(2) of the Wakf Act, 1954 (for brevity, hereinafter referred to as the “Act”) publishing the list of wakfs in Mysore District. Hazrath Noor Ali Shah Makan, Sunni, Banka Nawab Road, Mysore City, which is  the subject matter of this writ petition, was included in the said list at serial No.24 as a wakf property. The property of the wakf was mentioned as House No.265 measuring 18’ X 20’.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>Nearly 27 years thereafter, an order came to be passed on 02.12.1992 for taking over the management of Dargah Hazrath Noor Ali Shah Makan under Section 43A of the Act and the Chairman of the District Wakf Advisory Committee was appointed as the Administrator. This notification was challenged before this Court in W.P.No.37849/1992 and the said order was stayed. Ultimately, by order dated 06.09.1999, the order dated 02.12.1992 was quashed and the Board was directed to reconsider the matter afresh with reference to the facts as on the date and after giving an opportunity to the petitioner therein.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>Pursuant to the said liberty granted, the petitioners approached the Wakf Tribunal by filing an application under Section 83(2) of the Act for a declaration that ‘B’ schedule property (i.e., the property which was notified in the gazette on 01.04.1965) alone was the wakf property and for a declaration that the Circular dated 02.05.2003 and the order appointing the Official Committee on 29.01.2003 were invalid.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 8.<span style=\"white-space:pre\">	</span>The Wakf Tribunal, by an order dated 02.01.2010, recorded a finding that the petitioners had failed to prove that ‘A’ schedule property was their ancestral property and ‘B’ schedule property alone was the wakf property. The Tribunal also held that the Circular dated 02.05.2003 and the order appointing the Official Committee on 29.01.2003 were not invalid. It ultimately proceeded to dismiss the application.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>27.<span style=\"white-space:pre\">	</span>Having heard the learned counsel for both the parties, the point that arises for consideration in this petition is: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>Whether the Board possesses the power to issue a corrigendum to the list of wakfs published in the gazette under Section 5(2) of the Act?</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>28.<span style=\"white-space:pre\">	</span>An overview of the statutory provisions relating to the publication of the list of Wakfs would be required to answer this question. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>29.<span style=\"white-space:pre\">	</span>Chapter-II of the Act provides for survey of wakfs. Section 4 of the Act contemplates that the State is to appoint a Commissioner for making a survey of wakf properties existing in the State and the Commissioner is required, after making such enquiry, (as he may consider necessary) to submit a report in respect of wakf properties which are existing as on the date of commencement of the Act. The report is required to contain the specified particulars. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>30.<span style=\"white-space:pre\">	</span>Rule 3 of the Karnataka Wakf Rules, 1964 (for brevity, hereinafter referred to as “the Rules”) contemplates that the Commissioner apart from other details is also required to furnish the description of the immovable properties showing the village or town where the properties situate along with municipal or survey number, area, description of the tenure and the estimated value of the properties. 31.<span style=\"white-space:pre\">	</span>The Commissioner is thereafter required to submit a report to the Government and the Government under Section 5 of the Act is required to forward a copy of the same to the Board and the Board is required to examine the report and publish, in the Official Gazette, a list of wakfs existing in the State containing such particulars as may be prescribed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>32.<span style=\"white-space:pre\">	</span>Rule 4 of the Rules mandates that apart from other particulars, the details of the wakf properties including the area, boundaries and value are required to be mentioned in the list of wakfs to be published under Section 5(2) of the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>33.<span style=\"white-space:pre\">	</span>Thus, the law contemplates that after a preliminary survey is conducted, the list of wakfs is required to be published in the gazette and this list is required to contain the details of the properties of the Wakf. This is obviously to declare and notify the wakfs that existed in the State and to also notify the properties which the wakfs owned or possessed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>34.<span style=\"white-space:pre\">	</span>Section 6 of the Act provides for raising a dispute regarding wakfs, if any question arises as to whether a particular property specified as wakf property in the list of wakfs published under Section 5(2) of the Act, is a wakf property or not or whether the wakf specified as Shia wakf or Sunni wakf. This dispute could be raised by the Board or Mutawali of the wakf or any person interested therein by instituting a suit in the Civil Court. A limitation of one year to institute a suit was also stipulated as per the proviso. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>35.<span style=\"white-space:pre\">	</span>Thus, the question as to whether a property specified as a wakf property in the list of wakfs, was or was not a wakf property, was to be determined in a suit instituted for that purpose, either by the Board or any other person interested. If no suit was instituted, as provided under Section 6 of the Act, it is obvious that the list of wakfs published under Section 5(2) of the Act became final and as a consequence, the properties mentioned therein would have to be considered as wakf properties absolutely.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>36.<span style=\"white-space:pre\">	</span>In this case, it is not in dispute that house bearing No.265 measuring 18’ X 20’ was mentioned as property of the wakf of Dargah Hazrath Noor Ali Shah Makan, Sunni, Benki Nawab Road, Mysore City. This property, specified as wakf property with all its necessary particulars as provided under the Rules, was not challenged under Section 6 of the Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>38.<span style=\"white-space:pre\">	</span>To put it differently, the measurement of the property specified in the list of wakfs published under Section 5(2) of the Act became final and absolute not only insofar as the Board but also in respect of any other person who was interested in the wakf.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>42.<span style=\"white-space:pre\">	</span>Thus, in essence, the question as to whether the petitioners own the property, other than the property bearing house No.265 measuring 18’ X 20’, was left open to be adjudicated in the event the petitioners or the Board initiated appropriate proceedings in that regard.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>48.<span style=\"white-space:pre\">	</span>As stated earlier, the property specified as wakf property in the list of wakf published under Section 5(2) of the Act was amenable to a challenge by institution of a suit, provided the same had been instituted within a period of one year. If the list of wakfs, published in the gazette, had not been challenged and which resulted in a finality being attached to the list of wakfs and its properties, it would not be permissible for the Board to alter the extent of the properties of a wakf, at a later stage. If this is permitted, it would basically permit the Board to nullify the finality attached to the publication of the list of wakfs, and which is not provided under the Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>50.<span style=\"white-space:pre\">	</span>Section 21 of the General Clauses Act confers powers on the authority which issues a notification to modify, vary or rescind the said notification. It is to be stated here that the power available under Section 21 of the General Clauses Act is in respect of a notification which is issued in exercise of a statutory power. This power would not be available in respect of publication of a list of wakfs in the gazette. The power to issue a notification under a statutory provision is completely different from the obligation of the authority to cause the publication of list of wakf in the gazette after completion of a preliminary survey.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>53.<span style=\"white-space: pre;\">	</span>Section 21 of the General Clauses Act states that if a Central Act confers a power to issue a notification, that power would include the power to be exercisable to add or amend or vary or rescind the notifications, subject to the same terms and conditions for issuance of the notification.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 54.<span style=\"white-space: pre;\">	</span>A plain reading of this section would indicate that Section 21 of the General Clauses Act would come into operation only in respect of a power conferred under an Act to issue a notification. A notification issued under an Act is an exercise of statutory power and cannot be relatable to an obligation cast upon the authority to cause the publication of an order of a list.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>56.<span style=\"white-space: pre;\">	</span>As far as the argument that the Board has the right to amend the register of wakfs under Section 28 of the Act is concerned, it is to be noticed here that Chapter-IV of the Act provides for registration of wakf and it provides for the manner in which the registration is required to be done. The maintenance of register of wakf would have no bearing on the list of wakfs published in the gazette and the Register is basically to reflect the particulars of the properties as indicated in the list of wakfs published under Section 5(2) of the Act. The Board, which has been conferred with the power to direct Mutawali to apply for registration of wakf or cause the registration of wakf, cannot utilize this power to amend the list of wakfs published in the gazette under Section 5(2) of the Act. The power to amend the register of wakfs is wholly different from the power to amend the list of wakfs published under Section 5 (2) of the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">57.<span style=\"white-space: pre;\">	</span>As noticed above, the list of wakfs published under Section 5(2) of the Act can only be disturbed by the decree of a competent Civil Court, provided the suit is instituted within a period of one year. Once the period of one year elapses, the list of wakfs published in the gazette which also indicates the properties of the wakfs becomes unalterable. Therefore, the argument with regard to Section 28 of the Act conferring power on the Board to amend the list of wakfs by issue of a corrigendum to the notification published in the gazette under Section 5(2) of the Act is without any substance.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>60.<span style=\"white-space: pre;\">	</span>It is to be stated here that the question as to whether a property was a wakf property or not in the list of wakf published in the gazette under Section 5(2) of the Act is amenable to the jurisdiction of the Civil Court under Section 6(2) of the Act. However, the legality or the validity of a corrigendum which was issued nearly 46 years after the publication of the list of wakfs in the gazette cannot be considered by the Tribunal. The Tribunal has not been conferred with the power to strike down a notification or a corrigendum. The petitioners are questioning the jurisdiction of the Wakf Board in issuing a corrigendum and therefore, it is this Court which has possessed the jurisdiction to test the validity of corrigendum. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>61.<span style=\"white-space: pre;\">	</span>Learned Senior Counsel appearing for the Wakf also placed reliance on a Division Bench ruling of this Court in the case of MUJAWAREEN NAZREEN DARGAH COMMITTEE HAZRATH MANIK SHAH Vs THE KARNATAKA STATE BOARD OF WAKFS in W.A.No.4836/2015 disposed off on 07.12.2016, in which, an addendum to the list of wakfs was challenged. The Division Bench in the said case found that the matter required factual investigation and therefore, reserved liberty to the petitioners therein to file a suit. No argument was advanced regarding the power of the Board to issue an addendum and no ratio has been laid in that decision regarding the power of the Board to issue a corrigendum and therefore, the said decision would be of no avail to the respondent – wakfs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 62.<span style=\"white-space: pre;\">	</span>In the result, the writ petition is allowed</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>63.<span style=\"white-space:pre\">	</span>In the event, the petitioners initiate appropriate proceedings for declaration of their title, the corrigendum dated 26.02.2011 shall not be taken into consideration and the rights of the petitioners could be decided only in terms of the list of wakfs published under Section 5(2) of the Act on 01.04.1965.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd653b44c91ddb65603c3466de3a8ec26.JPG', '266913cfe44f77b5742ee9ff80dcdf79.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-14', 1, '', '', '2023-06-12 13:15:43', '2023-06-14 12:26:19');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3061, 'yp6UfxuVeAVgMZ3H5KtobvI97', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka SC/ST (PTCL) Act, 1978. Delay of 11 years in seeking restoration of alienated land cannot be entertained. After long lapse of time, the delay by itself would act as an impediment. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Narasamma Vs Deputy Commissioner and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 23175 of 2022 decided on 25 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sachin Shankar Magadum.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The captioned writ petition is filed by the purchaser feeling aggrieved by the order passed by the respondent No.2-Assistant Commissioner ordering for restoration of petition land and the order passed by the respondent No.1-Deputy Commissioner confirming the order of the Assistant Commissioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Before I advert to the facts of the present case, it would be useful to refer to the judgments rendered by the Apex Court on this issue in the case of Nekkanti Rama Lakshmi .vs. State of Karnataka and another1 and Vivek M. Hinduja .vs. M. Aswatha. It would be also useful to refer to the judgment rendered by a Co- Ordinate Bench of this Court in W.P.No.50446 of 2012, which was confirmed by the Division Bench in W.A.No.16/2021 disposed of on 05.04.2021. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The Apex Court in the case of Nekkanti Rama Lakshmi, while interpreting Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (for short \"PTCL Act\") had an occasion to examine the point of limitation wherein interested person can file appropriate application seeking annulment of sale as void under Section 4 of the PTCL Act. The Apex Court by reiterating the principles laid down in Chhedi Lal Yadav .vs. Hari Kishore Yadav and also in the case of Ningappa .vs. Deputy Commissioner and others4 has held that where Statute did not prescribe the period of limitation, the provisions of the Statute must be invoked within a reasonable time. The Apex Court was of the view that the authorities have to give due regard to the period of time within which action has to be taken by the interested person. The Apex Court was of the view that it is well within the discretion of the competent authorities not to annul the alienations where there is inordinate delay in initiating action by the interested persons under Sections 4 and 5 of the PTCL Act. The co-ordinate Bench of this Court in W.P.No.50446/2012 disposed of on 24.1.2020 declined to entertain the application filed by the original grantee where there was a delay of ten years. This Court was of the view that the application itself was not maintainable since the same was not filed within a reasonable time. While recording the finding, this Court relied on the judgment of the Apex Court in Ningappa .vs. Deputy Commissioner and others, where the Apex Court had declined to entertain the application which was submitted after nine years seeking restoration of land under Sections 4 and 5 of the PTCL Act.   The judgment rendered by a co-ordinate Bench of this Court in W.P.No.50446/2012 is affirmed by the Division Bench of this Court in W.A.No.16/2021. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>In the present case on hand, the petition land was granted to father of respondents 3 and 4 on 13.4.1982.   The original grantee during his life time sold the petition land under registered sale deed dated 10.8.1998. The original grantee during his life time filed a petition in 2009 seeking restoration of the petition land. The Assistant Commissioner entertained the application and has ordered for restoration of petition land. The said order is confirmed by the Deputy Commissioner.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>In the present case on hand, there is a delay of 11 years in initiating action. The authorities below have not examined the delay and laches in moving the application.   The judgments cited supra clearly indicates that on the ground of gross delay and laches, the application made by the grantee or by the legal heirs under Section 5 of the PTCL Act requires to be rejected. The Hon\'ble Apex Court in the above cited judgment has held that where statute does not provide for limitation, the authorities and State must act consciously and if the process of invoking the provisions of statute is delayed and is initiated after long lapse of time, the delay by itself would act as an impediment. Thus, without exception and coming across various rules of law, the Apex Court has categorically stated the law in respect of exercise of power/jurisdiction under statute where no limitation is stipulated. The law on the point of delay and laches to invoke the provisions of PTCL Act is well settled by catena of judgments.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 6.<span style=\"white-space: pre;\">	</span>In the instant case, diligence is woefully lacking. There is a gross delay of 11 years in initiating action.Therefore, the respondent No.2-Assistant Commissioner was not justified in entertaining the application. Respondents 3 and 4 who are the children of original grantee are not entitled for restoration of the petition land as the material on record also indicates that third party right is created. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">8.<span style=\"white-space: pre;\">	</span>For the reasons stated supra, the order passed by the respondent No.2-Assistant Commissioner and the order passed by respondent No.2-Deputy Commissioner are liable to be quashed.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space: pre;\">	</span>The writ petition is allowed</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'dd5765dc9bd99a74a0d9614d429c628b.JPG', '37c0d4d2031d3ef61d70ac4cc795e984.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-14', 1, '', '', '2023-06-12 13:50:15', '2023-06-14 03:22:14'),
(3069, 'YOYXNymUGHNwrwyulTFLR8F6m', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Court Fees and Suits Valuation Act. Suit for cancellation of sale deed. No need to pay ad-valorem court fee on the market value if the property is agricultural land. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Venkatamma and others Vs M/S. SLV Gardens and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 10681 of 2023 decided on 26 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.R. Krishna Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This petition is directed against the impugned order dated 15.04.2023 passed in O.S.FR. No.633/2023 by the Prl.Senior Civil Judge, Bengaluru Rural District, Bengaluru, whereby the trial court upheld the office objections regarding valuation and court fee and directed the petitioners – plaintiffs to pay ad-valorem court fee on the market value of the suit schedule property as per Section 38 and 26(c) of the Karnataka Court Fees and Suits Valuation Act, 1958 (for short ‘the said Act of 1958’).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>A perusal of the impugned order passed by the trial court will indicate that the trial court has come to the conclusion that the petitioners-plaintiffs are liable to b pay ad-valorem court fee on the market value of the suit schedule property, since the petitioners – plaintiffs have sought for cancellation of the sale deed dated 22.10.2012, to which they were parties and consequently, Section 38 of the said Act of 1958 was applicable which entails payment of court fee on the market value of the suit schedule property. In this context, the trial court failed to consider the plaint averments including the schedule, wherein the plaintiffs have clearly stated that the suit schedule property was agricultural land bearing Sy.No.293/2 measuring 21 guntas situated at Kaggalipura village, Uttarahalli hobli, Bangalore South Taluk, which is assessed to land revenue under the provisions of the Karnataka Land Revenue Act, 1961 and consequently, the suit was correctly valued under Section 7(2) r/w Section 38 of the said Act of 1958, which is part and parcel of Section 7(2) of the said Act of 1958. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>Under these circumstances, I am of the considered opinion that the impugned order passed by the trial court directing the petitioners – plaintiffs to pay ad-valorem court fee on the market value of the suit schedule property is erroneous and contrary to the material on record as well as the provisions of the said Act and the same deserves to be set aside.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(i)<span style=\"white-space:pre\">	</span>Petition is hereby allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ac9c30af00a2043315bc04312851117d.JPG', '80124ed9b5e739c25908ae084a9be5a9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-15', 1, '', '', '2023-06-14 15:40:09', '2023-06-15 03:21:45'),
(3074, 'UZJUkfRHLzo3AgFTf0ZA43y7f', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Pendency of criminal/judicial proceedings against a retired employee is not a ground to withhold pension when there are no allegations of pecuniary loss to the employer. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mallikarjun Vs The Karnataka Power Transmission Corporation Limited and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 104770 of 2022 decided on 31 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Facts leading to filing of this petition narrated briefly are; on the complaint of a private individual, Anti Corruption Bureau had registered a criminal case against the petitioner in Crime No.5/2018 for the offences punishable under Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>The petitioner, who was serving as an Assistant Executive Engineer with the respondent – Corporation has retired from service on 31.05.2022 on attaining the age of superannuation. The petitioner contends that he had completed his service without there being any remarks or deficiency. On the ground that a judicial proceeding is pending against the petitioner, the 2nd respondent has issued the impugned endorsement Annexure – A dated 28.06.2022 stating that 50% of petitioner’s gratuity and pension would be withheld. After receipt of the said endorsement, the petitioner has made a representation on 30.06.2022 vide Annexure – B stating that was not involved in any corruption activities and no loss or deficiency of service has been caused by him to the Corporation and accordingly he had requested to release the entire gratuity and pension amount due to him. The petitioner had thereafter made a fresh representation with the respondent on 22.08.2022 requesting them to disperse the entire pension and gratuity due to him. Since the respondents have not considered the said representation, the petitioner is before this Court.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>The undisputed facts of the case are, the petitioner who was working as an Assistant Executive Engineer with the 1st respondent – Corporation has retired from service on 31.05.2022 on attaining the age of superannuation. There was no departmental proceeding pending against him at the time of his retirement. Since a criminal case was pending against him, on the ground that a judicial proceeding is pending against the petitioner, the respondent – Corporation exercising its power under Regulation 172 of the Regulations has withheld 50% of his gratuity and pension. Regulations 171 and 172 of the Regulations reads as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“171.<span style=\"white-space: pre;\">	</span>The Board further reserves to itself the right of withholding or withdrawing a pension, or any part of it, whether permanently, or for a specified period and the right of ordering the recovery from a pension of the whole, or party of any pecuniary loss caused to the Board, if, in a departmental or judicial proceedings, the pensioner is found guilty of grave misconduct, or negligence, during the period of his service, including service rendered on re-employment after retirement.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>172(1) Where any departmental or judicial proceedings is instituted under Regulation 171 or where a departmental proceedings is continued under clause (a) of the proviso thereto against an employee who has retired on attaining the age of superannuation or otherwise, he shall be paid the period commencing from the date of his retirement to the date on which upon conclusion of such proceedings final order are passed, a provision pension not exceeding the maximum pension which would have been Admissible on the basis of his qualifying service upto the date of retirement, or if he was under suspension on the date of retirement upto the date immediately preceding the date on which he was under suspension, but no gravity or death-cum retirement gratuity shall be paid to him until the conclusion of such proceedings and the issue of final orders thereon. Note – In the case of a retired employee entitled to pension without death-cum- retirement gratuity under the pension Regulations elected by him, the provisional pension shall not exceed three-fourths of the maximum pension admissible to him.”</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>Under Regulation 172 of the Regulations, the Corporation can withhold the gratuity and pension to the tune of 50% only if any department or judicial proceeding is instituted under Regulation 171 of the Regulations or where a departmental proceeding is continued under clause (a) of the proviso thereto against an employee who has retired on attaining the age of superannuation or otherwise. Since in the criminal case filed against petitioner, charge sheet is already filed and the said case is pending at the stage of evidence, having regard to explanation (b) to Regulation 171, it has to be held that a judicial proceedings is deemed to have instituted against the petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>In the case of Narasegowda in almost identical circumstances, the Co-ordinate Bench of this Court having appreciated the powers of the Board under Regulations 171 and 172 of the Regulations at para 10 to 12 of its order has observed as follows:<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i><br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“10. A plain reading of Regulation 172(1), insofar as the present petitioners are concerned, would show that where any judicial proceedings is instituted against an employee) under Regulation 171, he shall be paid a provisional pension, not exceeding maximum pension, admissible on the basis of qualifying service. The judicial proceedings, as contemplated by Regulation 171, in my opinion, is one where the question, directly or indirectly, of pecuniary loss to the Board is involved. In other words, if judicial proceedings, such as the one against the petitioners, is pending; which has nothing to do with the Board or where the question of pecuniary loss and recovery is not involved, the power to grant provisional pension under Regulation 172 cannot be exercised. </i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i><br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>11.<span style=\"white-space:pre\">	</span>Further, from plain perusal of Regulation 170, it is clear that the power conferred on the Board under this provision to withhold or withdraw a pension is only in case the pensioner is “convicted of a serious crime”. Similarly, a reading of Regulation 171 shows that the Board can reserve to itself the right of withholding or withdrawing a pension, or any part of it, whether permanently or for a specified period, if in a departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service. </i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i><br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>12.<span style=\"white-space:pre\">	</span>Thus, a close look at these provisiosn and as contended by learned Senior Advocate appearing for the petitioners, show that unless the judicial proceedings result in conviction, causing pecuniary loss to the Board, the power to withhold or withdraw a pension cannot be exercised.” </i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>Even in the present case, it is not the case of the respondent – Corporation that the petitioner has caused any pecuniary loss to it or that there is any proceeding of recovery pending against him. In the case of Narasegowda, this Court has held that even if there is any judicial proceeding against the employee, if the same does not involve the question of any pecuniary loss of recovery against the employee, the power under Regulation 172 of the Regulations cannot be exercised. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>In the case of The The Managing Director KPTCL Corporate Office vs. Boregowda and another (W.A. No.3251/2018), the Division Bench was considering the power or authority of the Corporation under Regulation 172 of the Regulations, wherein, admittedly a departmental proceedings was pending against the employee. In the present case, no departmental proceedings is pending against the petitioner. The facts of the said case are totally different and therefore, the judgment in the said case cannot be made applicable to the present case. Under these circumstances, I am of the considered view that the impugned endorsement issued by the 2nd respondent vide Annexure – A dated 28.06.2022 cannot be sustained. Accordingly the following order:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> The writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2f4e8893553818f927f2873a58fbbf5b.jpeg', 'e7c6646a09c454dec1e45f1390da8e43.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-20', 1, '', '', '2023-06-15 15:55:45', '2023-06-20 03:22:09'),
(3063, 'rYHN5JxyE29862S5lJi6rJRbd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Initiation of criminal proceedings under the Karnataka Protection of Interest of Deposits in Financial Establishment Act against director of a company without preliminary enquiry is illegal. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vipul Prakash Patil Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 104152 of 2022 decided on 30 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V. Srishananda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>Brief facts of the case are as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>A complaint came to be filed by Shivanand S/o Channappa Magadumma on 11.11.2022 with Chikkodi Police Station which was registered in Crime No.242/2022 under the provisions of Section 9 of Karnataka Protection of Interest Depositors in Financial Establishment Act, 2004 (for short, ‘KPID Act’) and under Sections 406 and 420 of IPC.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 5.<span style=\"white-space: pre;\">	</span>Gist of the complaint averments reveal that there was an offer made by Pankaj Namadev Patil and Santosh Gangaram Ghodake along with the present petitioner that if a sum of Rs.1,00,000/- is invested, they would return the amount within ten months in installments of Rs.15,000/-. Accordingly, the complainant and others invested huge sums of money. Initially, in order to gain the confidence of the complainant and other investors, Pinomic Company, a limited liability partnership firm repaid the amount for few months and thereafter stopped paying the amount. The efforts made by the complainant and others to recover the money went in vain and left with no alternative they approached Chikkodi police and filed the complaint. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>The police after registering the case, are investigating the matter. In the meantime, the petitioner herein has challenged the very registration of the case and sought for quashing of first information report contending that the petitioner is noway involved in the alleged fraud. The petitioner also questioned the very registration of the case by Chikkodi police inasmuch as in the absence of any preliminary satisfaction report lodged by the competent authority with the State Government, registration of case for the offence punishable under Section 9 of KPID Act or for that matter the other IPC offences would not arise at all and therefore registration of the case would affect the personal liberty of the petitioner and also results in abuse of process of law and sought for quashing of further proceedings. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">7.<span style=\"white-space: pre;\">	</span>Reiterating the grounds urged in the petition, Sri.Pramod Kathavi, learned Senior counsel vehemently contended that having regard to the scheme of KPID Act, registration of a case by the police is impermissible unless there is a preliminary enquiry to be conducted by the competent authority based on the complaint or suo moto information and there must be a satisfactory report that the fraud has occurred in a given case resulting in further proceedings before the Special Court and registration of the case etc., and in the case on hand, Chikkodi police have directly registered the case as if it is an IPC offence without there being any satisfactory report on record and till today there is no enquiry conducted by the competent authority in the alleged fraud and therefore the very registration of the case is bad in law and sought for quashing of further proceedings.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">15.<span style=\"white-space: pre;\">	</span>Though the parties have addressed detailed arguments on the scheme of the Act and registration of FIR, etc., this Court is of the considered opinion that in the absence of any prima facie documentary proof to hook in the present petitioner in the alleged fraud, the very registration of complaint as against the present petitioner is unnecessary and has resulted in abuse of process of Court as is rightly contended by the learned Senior counsel for the petitioner, Sri.Pramod Kathavi.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space: pre;\">	</span>In order to proceed against a person with criminal action, the complainant or the prosecuting agency must make out a prima facie material whereby some nexus could be established to the alleged crime with a person. If such material is not available, very registration of the case against such persons would definitely amount to abuse of process of law affecting right of a citizen enshrined in Article 21 of the Constitution of India. No person shall be allowed to undergo ordeal of a criminal investigation unless there is some material which would connect the said person with the alleged crime. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">19.<span style=\"white-space: pre;\">	</span>In the case on hand, since only name of the present petitioner is taken in the complaint without there being any documentary proof to remotely establish the nexus to the alleged fraud and the present petitioner, this Court is of the considered opinion that continuation of investigation as against the present petitioner in Crime No.242/2022 would necessarily result in abuse of process of law. 20.<span style=\"white-space: pre;\">	</span>Therefore, a case is made out by the petitioner to exercise powers vested in this Court under Section 482 of Cr.P.C. in seeking quashing of very registration of the case as against the petitioner.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space: pre;\">	</span>At this stage, Sri.Harshawardhan M Patil, submits that when investigation is proceeded against other two persons and Pinomic Ventures LLP if the investigation agency were to find any material whereby the present petitioner is also involved in the alleged fraud, the investigating officer may be reserved with liberty of arraigning him as an additional accused. The said submission appears to be fair. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22.<span style=\"white-space: pre;\">	</span>Sri.Pramod Kathavi, learned Senior counsel fairly submits that even if this Court does not reserve such liberty, the investigating officer having regard to the powers vested in him under the Code of Criminal Procedure can always arraign an additional accused if there is sufficient material to proceed against him and file appropriate report as contemplated under Section 173 of Cr.P.C. Nevertheless, he has no objection if any such material is unearthed by the investigating agency to arraign the present petitioner as an additional accused. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">23.<span style=\"white-space: pre;\">	</span>Placing the submission of Sri.Pramod Kathavi, learned Senior counsel on record, this Court is of the considered opinion that at least for the time being registration of case as against the present petitioner needs to be quashed.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Criminal petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0dce15d9abaf9c4b52c8077499c05b1c.JPG', '7ef290521c6bebac0fe2542f0106726a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-14', 1, '', '', '2023-06-13 13:01:29', '2023-06-14 06:52:10'),
(3064, 'olKmph8RJnAmLrGQ0U1ZTemAE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Deemed conversion of land under Section 95(2) of the Karnataka Land Revenue Act, 1964 shall be strictly adhered to by the officers when the objections raised are complied with. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Abdul Rehman Vs The Deputy Commissioner and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 202519 of 2022 decided on 30 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Petitioner is the owner in possession of land bearing Sy.No.5/2 measuring 27 guntas and 5/8 measuring 27 guntas situated at Kahanapur K village, Basavakalyan Taluk, Bidar District. The petitioner had filed an application under Section 95(2) of the Karnataka Land Revenue Act, 1964 (for short, hereinafter referred to as \'the Act\') seeking for conversion of the said land from agricultural to non- agricultural residential purpose on 11.12.2020 which is provided with application ID Nos.200103 and 200109. Thereafter, an objection had been raised by the Revenue Inspector that there was loan on the said property. In pursuance of which, the petitioner repaid the said loan and a re-conveyance deed came to be executed on 06.08.2022. Subsequent thereto, the petitioner gave several representations for consideration of the application for conversion since there was no other impediment for such conversion vide representations dated 15.11.2021, 16.11.2021, 13.09.2022 and 16.09.2022 at Annexures-K to N respectively. Despite which, no action has been taken by the respondents. It is in that background, the petitioner is before this Court seeking for the aforesaid reliefs. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>It is not in dispute that the petitioner has repaid the loan and a re-conveyance deed has been executed in favour of the petitioner thus, removing the objection raised by the Revenue Inspector for conversion. Once the same had been done and this fact informed to the respondents, it was for the respondents to have acted on the same and processed the application of the petitioner in terms of Section 95 of the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>In terms of sub-section (5) of Section 95 of the Act, if the Deputy Commissioner fails to inform the applicant of the decision within a period of four months from the date of receipt of the application, the permission applied for is deemed to have been granted. I am of the considered opinion that sub- section (5) of Section 95 of the Act would also apply once compliance with any of the objection raised has been completed by the applicant thus, giving a time period of four months for the Deputy Commissioner to raise any further objections for the conversion. No such objection having been raised after the earlier objection had been complied with by the petitioner, sub-section (5) of Section 95 of the Act would come into play. Thus, bringing about a deeming fiction in respect of the conversion of the land on account of the application not being processed within the said period. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">6.<span style=\"white-space: pre;\">	</span>This is not a stray case which is coming up before this Court. This Court has come across several matters where the applications which had been filed for conversion have not been acted upon by the concerned authority resulting in unnecessary litigation being filed before this Court. Therefore, I deem it fit and proper to direct the Principal Secretary, Revenue Department, to institute a mechanism of capturing the applications which are filed under Section 95 of the Act along with the date of the said application and the time taken for disposal thereof indicating also the date on which the deemed conversion comes into effect in terms of sub-section (5) of Section 95 of the Act unless objection is raised thereon, these details shall be web hosted on the website of the concerned Deputy Commissioner.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space: pre;\">	</span>The Writ Petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '08a0d562c98f89f229da6d0bcfdacd6c.JPG', '4719275edb37d5f81c8c9db4fad7325b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-17', 1, '', '', '2023-06-13 14:31:34', '2023-06-17 03:42:40');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3072, 'U08mg2b4oy99jWjZ2rTV67S82', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Court Fees and Suits Valuation Act. Agricultural land coming within municipal area shall be valued as urban land though it is not converted for non-agricultural purposes. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Narayanasa and others Vs B. Nagaraj Shetty and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 100116 of 2015 decided on 24 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.S. Hemalekha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The plaintiffs filed a representative suit for declaration that “ABCDEF” area shown in the plaint hand sketch be declared as a public road and in alternative claimed declaration for easementary rights over the “ABCDEF” area for consequential injunction of permanent injunction restraining the defendants not to put up any construction over the suit “ABCDEF” area and for the relief of mandatory injunction to remove the superstructure constructed in “ABCDEF” area. The suit was filed before the Civil Judge & JMFC, Koppal and was valued at Rs.3,000/- for the purpose of Court fee and jurisdiction of the Court under Section 24(b) of the Karnataka Court Fees and Suits Valuation Act, 1958 (hereinafter referred to as “the Act” for short).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>The petitioners-defendants appeared and filed their preliminary objections contending that the suit of the plaintiffs before the trial Court is not maintainable for want of pecuniary jurisdiction since the disputed area shown as “ABCDEF” area in the plaint is totally measuring 2,000 sq. ft. and is part of the plots purchased by the defendants for a valuable consideration of Rs.19,95,000/- and Rs.4,00,000/- by way of registered sale deeds and the suit property is capable for valuation. The defendants disputed that the area forms part of the public road and the value of the suit schedule property exceeds the pecuniary jurisdiction and sought to return the plaint.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space: pre;\">	</span>Having heard learned counsel for the parties, the point that needs to be answered is:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>Whether the suit of the plaintiff is properly valued for the purpose of pecuniary jurisdiction?</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\">14.<span style=\"white-space: pre;\">	</span>The undisputed facts are that the suit property is an area of “ABCDEF” as shown in the plaint hand sketch. It is also not in dispute that the plaintiff is seeking for declaration that the suit property is a public road and consequential relief of permanent injunction restraining the defendants from constructing over the suit schedule property and mandatory injunction to remove the construction put up in the said area and valuation is made at Rs.3,000/- under Section 24(b) of the Act. The trial Court, on the preliminary objection raised by the defendants, heard the issue regarding pecuniary jurisdiction and Court fee as the preliminary issues, and answered the same holding that the trial Court lacks pecuniary jurisdiction and returned the plaint. </font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Section 24(b) of the Act states where the suit is for declaration and consequential injunction is sought with reference to any immovable property, fee shall be computed on one-half of the market value of the property. Section 24(d) of the Act states that when the plaint depicts that the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees one thousand whichever is higher and the valuation made is Rs.1,000/- for each prayer and the trial Court holds that the plaint is properly valued under Section 24(b) of the Act, whereas the appellate Court States that the property cannot be valued.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">15.</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem; white-space: pre;\">	</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">The material on record reveal that the suit property is a non-agricultural land and the property is included within the corporation limits. What can be gathered from the reading of the plaint averments is that the defendants have obtained permission for construction after purchasing the property under Exs.D-1 and D-2. The suit was valued for Rs.3,000/- under Section 24(b) of the Act and PW.1 in his cross-examination has admitted that the market value of the disputed property would amount to Rs.7,95,000/-.  Exs.D-1 and D-2 are the sale deeds of the properties of defendant Nos.1 to 4, which are the open sites and the market value has been stated therein. Section 24(b) of the Act is to be applied in a suit for declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or Rs.1,000/- whichever is higher. The appellate Court held that the subject property in question cannot be valued and the plaintiff is at liberty to place his own valuation on the relief, Section 24(d) of the Act is applied without considering that the suit property forms part of the sale deeds at Exs.D-1 and D-2 and is not an agricultural land, applied the market value made by the plaintiffs in the pleadings.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space: pre;\">	</span>The Division Bench of this Court in J.M.Narayana & others vs. Corporation of the City of Bangalore and others [ILR 2005 Kar. 60] at para Nos.5 and 6 has held as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>“5. We have given our anxious consideration to the submissions made at the Bar. It is not disputed that the suit property stands included within the Corporation limits in terms of a notification issued much earlier to the filing of the suit. As a result of such inclusion, the taxes applicable within the Corporation limits would by operation of law and in particular Section 4 Sub-Section 4 of the Municipal Corporation Act become applicable to the extended area also. Even assuming that the land in question was agricultural land before its inclusion in the Corporation limits, the same would not necessarily mean that it either continued to pay land revenue nor would such land be exempted from payment of property tax under the said Act. As rightly pointed out by Mrs.Patil, Section 110 of the Karnataka Municipal Corporation Act, 1976, exempts the payment of property tax qua only such lands as are registered to be agricultural lands in revenue records of Government and as are actually used for cultivation of crops. Stated conversely just because certain land included in the Corporation limits is registered or used for cultivation purposes would not imply that the said land continues to pay land revenue under the Land Revenue Act. On the contrary, Land Revenue Act would cease to be applicable no sooner the land is brought within the Corporation limits.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>6. There is another angle from which the issue can be viewed. Section 7 of the Karnataka Court Fees and Suit Valuation Act, 1958 creates a legal fiction regarding the market value of lands that form an entire estate or a definite share of an estate are concerned. A closer reading of Section 7(2) (b) would show that not only should the land be an entire estate or a definite share of an estate, but it must be paying annual revenue to the Government. The expression \"paying annual revenue to the Government\" in Section 7(2) (b) is significant and in our opinion implies that the liability to pay land revenue must be clear and subsisting one. In cases where such liability ceases to exist on account of incorporation of the area within the limits of a Municipal Corporation, the land cannot be said to be paying annual revenue to the Government. That is because the liability to pay any such revenue must be deemed to have ceased from the moment the land is included in the extended Corporation limits.”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">17.<span style=\"white-space: pre;\">	</span>The Co-ordinate Bench of this Court under similar circumstances, in the case of Gowramma placing reliance on the judgment of the Division Bench of this Court in J.M.Narayana’s case has held that, on incorporation of the areas within the limits of Municipal Corporation, the land cannot be said to be paying annual revenue to the Government and the land seized to be an agricultural land from the moment the land is included in the extended corporation limits and it is immaterial whether the land is converted from agricultural to non- agricultural use. The only criteria being that the area should fall within the Municipal Corporation limits. Admittedly, in the present case, the petitioner has sought requisite permission from the appropriate authorities after purchasing the plots at Exs.D-1 and D-2 which invariably evidences that the suit property is within the city limits. The reasoning accorded by the appellate Court is not justifiable and the same needs to be set aside holding that the Civil Judge & JMFC, Koppal, lacks jurisdiction to entertain the suit of the plaintiffs. The judgments relied upon by the learned counsel for the respondents are not applicable to the facts and the circumstances of the present case and the judgments so relied are in the context of Order VII Rule 11 Code of Civil Procedure, 1908 for rejection of the plaint and also in regard to the valuation of agricultural land and the question whether the suit property was within the local limits of Municipal Corporation was not the question that was considered in the said judgments. Regarding payment of Court fee, it is for the appropriate Court to decide. In light of the same, this Court is of the considered view that the order passed by the appellate Court needs to be set aside and the order of the trial Court in returning the plaint is to be confirmed.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space: pre;\">	</span>The revision petition filed by the defendant is hereby allowed.</b></font></span></p>', 'a99fd9887f530707666353c0ccf3238b.jpeg', '34528fbdbf59f0d7e797a621934cfce4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-16', 1, '', '', '2023-06-15 15:17:04', '2023-06-16 03:46:49'),
(3067, 'JJpx9xxdHdsFBsKdqZFskgW9u', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Registration Act. When refusal of registration is endorsed on a deed, the only remedy is appeal under Section 72. The refusal cannot be recalled under Section 68(2). Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sunandamma and others Vs District Registrar and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 3643 of 2018 decided on 23 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ravi V Hosmani.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Sri P.N. Nanja Reddy, learned counsel for petitioner submitted that land bearing Sy.no.109, new no.123 of Singapura village, measuring 1 acre (hereinafter referred to as ‘petition property’) belongs to petitioners. It was granted on 19.04.1978 to Nanjundappa, father of petitioners no.1 to 5 and father-in-law of petitioner no.6. After death of Nanjundappa, Khata was mutated in name of his wife Smt.Achamma, who died intestate on 10.04.2006. As such, petitioners succeeded to property.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>It was submitted that during life time of Smt.Achamma, husband of respondent no.4 and father of respondents no.5 and 6 namely Kemparaju played fraud on her and obtained her signatures on some papers and created sale deed dated 22.02.1997. However, due to undervaluation, its registration was refused. When Kemparaju sought to interfere with their peaceful possession based on said sale deed, petitioners filed O.S.no.260/2015 seeking for declaration of their title and for permanent injunction.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>In suit defendant no.1 - Kemparaju filed written statement (Annexure-D) and also filed O.S.no.7015/2014 against respondents no.1 to 3 and petitioners herein for declaration that sale deed dated 22.02.1997 at Annexure-B as legal, valid and subsisting. Both suits were clubbed and presently pending on file of IX Additional City Civil Judge, Bangalore. Since Kemparaju died on 26.08.2016, respondents no.4 to 6, claiming as his legal representatives filed application under Order XXII Rule 3 of Code of Civil Procedure, 1908 (for short ‘CPC’).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>Thereafter, they filed a memo stating that respondent no.1 had recalled earlier order of refusal and restored registration of sale deed. On enquiry, petitioners found that respondent no.1 had passed impugned order dated 01.10.2016 for restoration of registration of sale deed dated 22.02.1997 after setting aside order of refusal for registration.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>It was contended that said order was passed without notice or opportunity to petitioners and was therefore illegal and arbitrary, calling for interference by this Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>It was further submitted that against order of refusal to register, an appeal was available under Section 72 of Indian Registration Act, 1908 within 30 days. In instant case however, impugned order is passed without appeal being preferred, merely in pursuance of representation of Kemparaju on 13.08.2015, that too after enormous delay, without application for condonation.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>And that impugned order was passed apparently when parties were agitating their rights before Civil Court to which respondent no.1 was also a party. Therefore, impugned order was arbitrary, illegal and wholly unsustainable in law.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>It was urged that Sub-Registrar guidance value of agricultural property in Singapura village during 1996-97 was Rupees Four Lakhs per acre. Therefore, sale deed was grossly undervalued. But on ground of original deed remaining unclaimed for more than 2 years, it was destroyed as per Rule 220 of Registration Rules. But as undervaluation was endorsed on each page of said deed, without complying with procedure under Section 45A, impugned order would be highly irregular calling for interference.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>25.<span style=\"white-space: pre;\">	</span>From above submissions, it is noticed that there is title dispute between parties in respect of petition property wherein petitioners have filed O.S.no.260/2015 for declaration of their title and for permanent injunction while respondents no.4 to 6 herein have filed O.S.no.7015/2014 against respondents no.1 to 3 and petitioners herein for declaration that sale deed dated 22.02.1997 as legal, valid and subsisting.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>27.<span style=\"white-space: pre;\">	</span>While petitioners contend that impugned passed by respondent no.1 is illegal on ground that order refusing registration was appealable under Section 72 of Registration Act, and order was passed without appeal being filed. It is also questioned on ground of violation of principles of natural justice as affected parties were not heard. It is also contended that destruction of original sale deed was prior to completion of all formalities of registration. Therefore, in absence of original sale deed merely by passing impugned order registration could not be restored. Under above circumstances, it is contended that invocation of power under Section 68(2) of Registration Act was not proper exercise of discretion.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>28.<span style=\"white-space: pre;\">	</span>Respondents, however, seek to justify it on ground that after execution of sale deed on 22.02.1997, Vendor - Smt. Achamma had executed rectification deed dated 24.06.1997, which was duly registered and thereafter on 22.06.2013, even petitioners had executed deed of consent in favour of Sri Kemparaju. They also contend that there were no proceedings held under Section 45-A of Karnataka Stamp Act for undervaluation and concern about demised property being gomal land was set at naught by Special Deputy Commissioner. It is contended that on 22.02.1997, all formalities of registration were completed, except issuance of original sale deed, which was delayed due to heavy rush of registration. While purchasers were under impression that when they were awaiting issuance of notices of undervaluation proceedings and only after securing information from respondents about status of their sale deed, they gave notice under Section 80 of CPC, in pursuance of which impugned order was passed upon due consideration of fact that reasons stated for refusal of registration were untenable and also on being satisfied that it was fit case to invoke Section 68(2) of The Registration Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>30.<span style=\"white-space: pre;\">	</span>It is also stated in impugned order that respondent no.2 obtained endorsement from District Registrar, Rajajinagar, about non-initiation and pendency of any proceedings for undervaluation and information provided by Tahsildar that demised property was not gomal land, order of refusal of registration without opportunity ostensibly entering into title dispute between parties would be contrary to provisions of Section 23, 25, 34, 35, 58 and 59 of Registration Act, and therefore apt for being set-right exercising power under Section 68(2) of Registration Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>31.<span style=\"white-space: pre;\">	</span>From above, it is not in dispute that sale deed dated 22.02.1997 stated to have been executed by Smt.Achamma, was presented for registration before respondent no.2. As required, under Section 52, 53 and 58 of Registration Act were recorded. However, procedure mandated under Section 60 and 61 etc., of Registration Act, were not completed on suspicion about property being gomal and also on suspicion of undervaluation. Consequently, it was endorsed on document as \'registration refused\' on 25.09.1997. Thereafter document remained as \'unclaimed documents\'. Subsequently, as a matter of course, under Rule 220 of Registration Rules, sale deed dated 22.02.1997 came to be destroyed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>32.<span style=\"white-space: pre;\">	</span>When refusal of registration is endorsed on a deed, question requires consideration is, whether exercise of power under Section 68(2) of Registration Act for declaring such refusal as illegal would be justified?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>33.<span style=\"white-space: pre;\">	</span>Admittedly, there is specific provision for appeal against order of refusal of registration in Section 72 of Registration Act. While under Section 68 of general superintendence and control is conferred on Registrar over Sub-Registrars. It is settled law that only in absence of specific provision, general provision can be invoked [K.K. Veluswamy Vs. N Palanisamy, reported in (2011) 11 SCC 275]. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>34.<span style=\"white-space: pre;\">	</span>In instant case, it is seen that beneficiary of sale deed dated 22.02.1997 namely, Sri. T.K. Kemparaju himself had filed O.S.no.7015/2014 for declaration about said sale deed being legal, valid and subsisting. Said relief was sought not only against petitioners herein, but also against respondents no.2 who was arrayed as defendant no.2 in O.S.no.7015/2014. Impugned order is passed after filing of said suit and entering appearance virtually leading to decree of suit would be highly questionable. Fact that it was passed in furtherance of representation without notice to petitioners in absence of any specific reason assigned would be wholly irregular and arbitrary.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>35.<span style=\"white-space: pre;\">	</span>While, it would normally be justified for registering authorities for exercising all powers dealing with registration and it\'s procedures, passing of orders amounting to decision on title would invite judicial review.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>36.<span style=\"white-space: pre;\">	</span>Fact that impugned order was passed in pursuance of a representation dated 13.08.2015 which was submitted 18 years after date of presentation of sale deed for registration without proper explanation for delay and laches would also render impugned order arbitrary.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>38.<span style=\"white-space: pre;\">	</span>Reliance on decisions in Sulochanamma\'s case and Abid\'s case (supra) would not be justified. Though, it was held in both cases that order of refusal for registration by registering authorities was bad in law, neither case involved invocation of power under Section 68 of Registration Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>39.<span style=\"white-space: pre;\">	</span>Even contention that as there was no adjudication, there was no requirement of notice would require to be stated only for being rejected as in facts and circumstances of this case, wherein both parties are entrenched in title dispute over schedule property by filing suits against each other. It would be different if aggrieved party were to have resorted to appeal under Section 72 of Registration Act, by explaining delay.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>40.<span style=\"white-space: pre;\">	</span>Wherefore, impugned order would be arbitrary and unsustainable.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>Hence, writ petition is allowed</b></font></span></p>', 'a8b71b41f04b049dcb7f5d25b685c715.JPG', 'd2923b50535845af26b5102cd8489e34.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-15', 1, '', '', '2023-06-14 13:08:47', '2023-06-15 06:56:23'),
(3068, 'AMzkGKiVoKG8rNaiAl00nR29v', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Purchaser cannot maintain a civil suit against the land acquisition body (BDA) for declaration and injunction when the acquisition proceedings are already completed. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bangalore Development Authority Vs Venkatamanaiah and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular First Appeal 23 of 2008 decided on 9 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.T. Narendra Prasad.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>The case of the plaintiff is that he is the absolute owner in possession and enjoyment of the residential property bearing No.59 new No.279 situated at 20th Main road, Hosahalli Extension, Kempapura Agrahara, now it is known as Magadi road, Chord Road Extension Layout, Bangalore-40, measuring East-West – 30 ft. and North-South – 60 ft., which was purchased by him from its previous owner – M.Munivenkatappa under a registered sale deed dated 30.05.1964. Thereafter, he has constructed a building, approximately in 8 squares, part of the building in RCC towards north and asbestos sheets towards south.   He constructed the building in the year 1965 and he was residing in the said property.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The further case of the plaintiff is that suit schedule property was not acquired by the second defendant, no notification has been issued in this regard and no award has been passed. Hence, the plaintiff is in an uninterrupted possession and enjoyment of the suit property right from 1964 till the date of filing the suit and he has perfected his title by adverse possession. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The further case of the plaintiff is that the second defendant allotted the suit property to the first defendant and on that basis the defendants are trying to dispossess the plaintiff on the guise of acquisition of the suit property. The plaintiff issued notice to the second defendant. On 02.09.1996, defendant Nos.1 and 2 approached defendant No.3 to demolish the suit schedule property by using the force. Hence, plaintiff filed a suit for adverse possession or in the alternative to declare that the plaintiff is in settled possession of the suit schedule property and other consequential reliefs. Later, plaintiff filed a memo giving up the prayers in respect of the adverse possession.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>After service of summons, defendant No.1 appeared in the suit through counsel and filed written statement and additional written statement contending that the suit property was allotted to her mother by second defendant through lease-cum-sale agreement dated 11.10.1968.   At the time of the allotment, the suit site was a vacant site. After the death of her mother, the said site was transferred to her name under an agreement dated 22.11.1976. After completion of 10 years of lease, second defendant wanted to cancel the allotment made to her. Accordingly, notice was issued and she has challenged the notice by filing a writ petition in W.P.No.7173/1979 before this Court. This Court directed the second defendant to execute absolute sale deed in favour of the first defendant. Thereafter, BDA executed absolute sale deed on 19.08.1989. Thereafter, khata was changed in her name and she is paying the taxes. She has denied all the allegations made in the plaint. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The second defendant appeared through counsel and filed written statement denying the claim of the plaintiff stating that the suit schedule property is a part of the land bearing Sy.No.211 of Kempapura Agrahara, which totally measures 21 acres 31 guntas. The entire land was acquired in the year 1961 by issuing preliminary and final notifications, award was passed, possession of the entire land has been taken in the year 1964 and it was utilized for the formation of the layout. After the formation of the layout, site bearing No.279 was allotted in favour of Thayamma, mother of the first defendant. It was further pleaded that since the plaintiff claims to be the subsequent purchaser, the suit filed by the plaintiff is not maintainable.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>The points that arise for consideration in this appeal is as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(a)<span style=\"white-space: pre;\">	</span>Whether the suit filed by the plaintiff against the BDA is maintainable?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> (b)<span style=\"white-space: pre;\">	</span>Whether the Trial Court is justified in decreeing the suit of the plaintiff holding that the plaintiff is in settled possession and enjoyment of the suit schedule property by constructing house in the portion of the suit schedule property?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>The case of the plaintiff is that one Mr.Munivenkatappa was the owner of the suit schedule property and he purchased the suit schedule property from him by registered sale deed dated 30.5.1964. Thereafter, he has constructed the building. From the year 1965, the plaintiff and his family members are residing in the property. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The specific case of the second defendant is that the suit site is part of Old Survey No.271 and new No.276 of Kempapura Agrahara. The said land has been acquired by the BDA by issuing preliminary notification dated 18.5.1961 and final notification was issued on 19.12.1961 and they have taken possession of the suit schedule property and they have formed layout and allotted the same to beneficiaries. The site in question has been allotted to first defendant. It is very clear from Exs.D-1 and D-2 that suit schedule property has been acquired by the Government under CITB Act for the formation of layout. The plaintiff has purchased the suit schedule property on 30.5.1964 i.e., after final notification dated 19.12.1961 has been issued by the State Government. The Apex Court in the case of Brijesh Reddy (supra) has held that once acquisition proceedings is completed, the purchaser who has purchased the land after acquisition has no right to maintain the suit against the BDA. Paragraph Nos.18, 19 and 20 of the said decision are relevant and same is extracted hereinbelow:</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“18. It is clear that the Land Acquisition Act is a complete code in itself and is meant to serve public purpose. By necessary implication, the power of civil Court to take cognizance of the case under Section 9 of CPC stands excluded and a Civil Court has no jurisdiction to go into the question of the validity or legality of the notification under Section 4, declaration under Section 6 and subsequent proceedings except by the High Court in a proceeding under Article 226 of the Constitution. It is thus clear that the civil Court is devoid of jurisdiction to give declaration or even bare injunction being granted on the invalidity of the procedure contemplated under the Act. The only right available for the aggrieved person is to approach the High Court under Article 226 and this Court under Article 136 with self- imposed restrictions on their exercise of extraordinary power.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>19.<span style=\"white-space: pre;\">	</span>No doubt, in the case on hand, the plaintiffs approached the civil Court with a prayer only for permanent injunction restraining the defendant Nos. 1 and 2,i.e., BDA, their agents, servants and any one claiming through them from interfering with the peaceful possession and enjoyment of the schedule property. It is true that there is no challenge to the acquisition proceedings. However, in view of the assertion of the BDA, in their written statements, about the initiation of acquisition proceedings ending with the passing of award, handing over possession and subsequent action etc., the said suit is not maintainable. This was rightly concluded by the trial Court. For proper compensation, the aggrieved parties are free to avail the statutory provisions and approach the court concerned. All these aspects have been clearly noted by the trial Court and ultimately it rightly dismissed the suit as not maintainable. On the other hand, the learned Single Judge of the High Court though adverted to the principles laid down by this Court with reference to acquisition of land under the Land Acquisition Act and Section 9 of CPC committed an error in remanding the matter to the trial Court on the ground that the plaintiffs were not given opportunity to adduce evidence to show that their vendor was in possession which entitles them for grant of permanent injunction from evicting them from the scheduled property without due process of law by the defendants. In the light of the specific assertion coupled with materials in the written statement about the acquisition of land long ago and subsequent events, suit of any nature including bare injunction is not maintainable, hence, we are of the view that the High Court is not right in remitting the matter to the trial Court for fresh disposal.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>20.<span style=\"white-space: pre;\">	</span>Having regard to the fact that the acquisition proceedings had been completed way back in 1960- 1970, the plaintiffs who purchased the suit land in 1995 cannot have any right to maintain the suit of this nature particularly, against defendant Nos. 1 and 2, namely, the BDA. The High Court clearly erred in remanding the matter when the suit was not maintainable on the face of it. The High Court failed to take note of the fact that even in the plaint itself, the plaintiffs-respondents herein have stated that the suit land was acquired and yet they purchased the suit land in 1995 and undoubtedly have to face the consequence. The possession vests with the BDA way back in 1969 and 1978 and all the details have been asserted in the written statements, hence<span style=\"white-space: pre;\">	</span>the remittal order cannot be sustained”.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Therefore, from the above decision of the Apex Court, it is clear that the suit filed by the plaintiff against the BDA is not maintainable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11. In respect of the relief sought by the plaintiff to declare that he is in settled possession and enjoyment of the suit schedule property is concerned, the Trial Court has given a clear finding that the plaintiff is in possession from 1989 to 1996. However, the Division Bench of this Court in the case of John B James (supra) has held that if the person has to prove that he is in settled possession, he should be in possession for more than 12 years without any kind of interference from the BDA. Paragraph No.80 of the said Division Bench decision of this Court is relevant and same is extracted hereinbleow:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“Re: Persons who have put up structures and have remained in settled possession for more than 12 years without any kind of interference from BDA: 80. If anyone, who has trespassed into BDA land or in unauthorized possession of BDA land, has put up a structure and completes and accomplishes the act of possession and continues in such settled possession asserting possession and ownership in himself, openly, peacefully and uninterruptedly to the knowledge of BDA, for more than 12 years, then it is possible for him to contend that he has perfected his title to such property by adverse possession and consequently the title of BDA stood extinguished. It is needless to say that such adverse possession for 12 years should be subsequent to the date of vesting of land in BDA. The person claiming such title by adverse possession cannot call in aid any possession on his part or his predecessor, for any period prior to date of vesting of land in BDA, to establish adverse possession, or possession during the pendency of any litigation regarding the property, cannot be considered as possession adverse to BDA”.<br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In the case on hand, there is a clear finding that the plaintiff was in possession from 1989 to 1996 and he has not been in possession for more than 12 years. Therefore, under the circumstances and in view of the Division Bench decision of this Court in the case of John B James (supra), the relief granted by the Trial Court declaring that the plaintiff is in settled possession and enjoyment of the suit schedule property is erroneous. Accordingly, the said finding of the Trial Court is set aside. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>In respect of possession is concerned, the specific case of the plaintiff is that from the date of purchase of the property i.e., 30.5.1964, the plaintiff is in possession of the property till today. The second defendant has contended that immediately after passing the award, the possession has been taken by the BDA. The finding of the trial court is that the plaintiff is possession from 1989. Even in the earlier proceedings before this Court in W.P.No.28535/1996, it is admitted that the plaintiff is in possession of the suit schedule property. Even in the written statement filed by the BDA, it is admitted that as on the date of the suit, the plaintiff is in possession of the property as unauthorized occupant. Therefore, under the circumstances, the defendants can evict the plaintiff only by following due process of law. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>Accordingly, the appeal is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '662da5a81fe50ebf9282138f58a0ea7c.JPG', 'df98937aa4236155fd90ab70cd55f6cc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-16', 1, '', '', '2023-06-14 13:45:22', '2023-06-16 07:01:39');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3066, 'HbotLMcNTO8Wp0nICcnKwmELb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Ancestral property fallen to the share of father in a family partition among his father and brothers cannot be claimed by his son since the property so allocated to his share becomes his exclusive property. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Koshy Abraham Vs B.K. Jayalakshmi and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>C.R.P 121 of 2021 decided on 29 November 2021.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2.2.<span style=\"white-space: pre;\">	</span>In the said suit, an application under Order VII Rule 11(a) and (d) read with Order XII Rule 6 of the Code of Civil Procedure, 1908 (for short, \"CPC\") was filed by the petitioner - defendant No.4 on 12.03.2020 seeking for rejection of the plaint on the ground that reading of the plaint does not disclose any cause of action and the suit was barred by law.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2.3.<span style=\"white-space: pre;\">	</span>In terms of the pleading in paragraph 3 of the plaint, it was alleged in the application that during the lifetime of plaintiff\'s grandfather Chikka Mallappa, he acquired several lands and subsequent to his death, his children partitioned all the joint family properties by way of Panchayath Parikath on 01.06.1994. In the said partition, \'B\' schedule properties were allotted to the share of defendant No.1.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2.4. Such pleadings in the plaint make it clear that Chikka Mallappa having died intestate and the property having devolved under Section 8 of the Hindu Succession Act, 1956 (for short, \"the said Act\") under the partition of 01.06.1994, the property becomes an individual and exclusive property of defendant No.1 and defendant No.1 inherited the same with an absolute right to alienate the same.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2.5.<span style=\"white-space: pre;\">	</span>In furtherance of the said right, defendant No.1 along with his sons executed a registered sale deed dated 20.09.2005 in favour of the petitioner - defendant No.4. Hence, on this ground it was contended that the plaint is liable to be rejected as barred by the provisions of Section 8 of the said Act and there being an admission that there was a partition of 01.06.1994, the suit is liable to be dismissed in terms of Order XII Rule 6 of CPC.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2.6.<span style=\"white-space: pre;\">	</span>The said application came to be objected by the plaintiff contending that the suit was filed seeking for declaration that the sale deed dated 20.09.2005 executed by defendant Nos.1 to 3 in favour of defendant No.4 was not binding on the plaintiff\'s share.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">2.7.<span style=\"white-space: pre;\">	</span>The defendants had admitted in their written statement that item No.4 of the schedule properties was the ancestral property of defendant No.1 i.e. father of the plaintiff. It was also admitted that defendant No.4 had purchased the same from defendant Nos.1 to 3. Therefore, the plaintiff being daughter of defendant No.1 having not been excluded from such share, is a coparcener having right, title and interest as per Section 6 of the said Act.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2.8.<span style=\"white-space: pre;\">	</span>The plaintiff was not aware of the said sale deed. As soon as she came to know about it, the suit was filed. The plaintiff, being a daughter of defendant No.1, the schedule properties admittedly being ancestral properties and joint family properties of defendant Nos.1 to 3, the plaintiff would have equal right over the said properties. They cannot be said to be individual or exclusive property of defendant No.1 and he had no exclusive right to alienate the same as per Section 8 of the said Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\">2</font></span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">.9.</span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif; white-space: pre;\">	</span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">It is therefore, contended that all the grounds which have been urged by defendant No.4 in the application were questions of facts and not question of law. Hence, the question of facts, which requires trial cannot be agitated in an application under Order VII Rule 11 of CPC.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.10.<span style=\"white-space: pre;\">	</span>The contention of the plaintiff was that she being a daughter of defendant No.1 was entitled to the schedule properties in terms of Section 6 of the said Act. This itself is enough to establish that there is a cause of action to file the present suit. Therefore, it cannot be said that the plaint did not disclose a cause of action for the purposes of filing of the suit. It is therefore, alleged that maintainability of the suit cannot be decided without adducing evidence and all the grounds which were contended in the application are liable to be dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">2.11.<span style=\"white-space: pre;\">	</span>Upon hearing both the parties, the Trial Court by the impugned order dated 10.03.2021 dismissed the application on the ground that there was no direct judgment as regards rejection of the plaint in terms of Section 8 of the said Act and on grounds raised in the application.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>The points that would arise for determination are:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space: pre;\">	</span>Whether the plaint can be rejected on the ground that partition was effected prior to 20th day of December, 2004?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Whether a female Hindu can claim for partition on a disruption of a joint family, post coming into force of the amendment to the Hindu Succession Act giving raise for rejection of the plaint if a suit was to be filed by her?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Whether a male coparcener having male children, on entering into a partition deed, the property so allocated to his share will become his exclusive share?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>Whether the order passed by the Trial Court suffers from any legal infirmity requiring this court to interfere in the matter?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>What order?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>ANSWER TO POINT NO.1: Whether the plaint can be rejected on the ground that partition was effected prior to 20th day of December, 2004?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9.14.<span style=\"white-space: pre;\">	</span>In the present case, the partition was effected on 1.6.1994. Such being the case, Sub Cluse (5) to Section 6 would come into operation and even on this account, the plaintiff cannot claim a right over the property.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9.15.<span style=\"white-space: pre;\">	</span>When exfacie it can be seen that the plaintiff does not have a right to file a suit for partition since the very right which has been conferred by way of amendment to Section 6 of the Hindu Succession Act, does not enure to her benefit, in my considered opinion there would no purpose served in continuing the suit and or for a trial to be held.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9.16.<span style=\"white-space: pre;\">	</span>When on the basis of the averments made in the plaint itself a suit appears to be barred or suit is barred by law, continuation of the said suit would be an abuse of process of Court and as such, in my considered opinion, a plaint, in that circumstances is required to be rejected since exfacie it is clear that the suit could not have been filed as the same is contrary to law.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9.17.<span style=\"white-space: pre;\">	</span>I answer Point No.1 by holding that a plaint can be rejected on the ground that partition was effected prior to 20th day of December, 2004.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>ANSWER TO Point NO.2: Whether a female Hindu can claim for partition on a disruption of a joint family, post coming into force of the amendment to the Hindu Succession Act giving raise for rejection of the plaint if a suit was to be filed by her?<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.1.<span style=\"white-space: pre;\">	</span>Though consideration of this point would be academic in view of the finding as regards Point No.1 since the arguments have been advanced on this point, the same is answered as under.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.3.<span style=\"white-space: pre;\">	</span>I have already answered that the partition deed 1.6.1994 has been admitted by the respondent No.1-plaintiff, hence the question of consideration of the right of the plaintiff dehors the partition deed would not arise.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.8.<span style=\"white-space: pre;\">	</span>In the present case, on the occurrence of partition, a share is allocated to the father of the plaintiff i.e. defendant No.1. The shares allotted to father was so allotted in his individual capacity and the disruption of the joint family was complete in the year 1994.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.9.<span style=\"white-space: pre;\">	</span>Once the joint family was disrupted and the property is allotted to the share of defendant Nos.1, it became his self acquired property and no longer continued to be a joint family property in terms of the decision of the Apex Court in Chandrasen and Yudhishiter\'s case (supra).</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.10.<span style=\"white-space: pre;\">	</span>This aspect has recently been considered by the Apex Court in Uttam\'s case (supra) wherein the Apex Court has after analyzing the entire matter held that a conjoint reading Section 4, 8 and 19 of the Act after the entire joint family property has been distributed in accordance with Section 8, the joint family property would cease to be a joint family property in the hands of various persons who have succeeded to it as they hold the property as tenants in common and joint tenants. Thus, this decision of the Apex Court also reinforces the claim of the petitioner herein and negates the claim of respondent No.1-plaintiff, in that there cannot be said to be joint family subsequent to the disruption in the family and allocation of shares in terms of Section 8 of the Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.11.<span style=\"white-space: pre;\">	</span>The decision relied upon by Sri.H.R.Anantha Krishnamurthy in Shyamnarayan Prasad\'s case would not apply to this case since that was a claim made by a son of a person who was allotted a share in terms of Section 8 of the Act. However, even the sons of defendant No.2 cannot claim a share in the entire property dehors the partition which has occurred in the year 1994, as such the decision relied on Shyamnarayan Prasad\'s case by Sri.H.R.Anantha Krishnamurty would not be applicable in the present facts and circumstances.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.12.<span style=\"white-space: pre;\">	</span>In view of the above, a female Hindu cannot claim partition on disruption of the joint family post coming into force of the said Act from and out of the share of either her father or muchless on the entire property which has already been partitioned.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.13.<span style=\"white-space: pre;\">	</span>As regards the share of her father i.e., defendant No.1, the property having been allocated to defendant No.1, defendant No.1 has sold his share along with the defendant Nos.2 and 3 who have also joined in execution of the sale deed in favour of defendant No.4. Thus, defendant No.1 having sold the property, the plaintiff cannot claim any right, title or interest in the said property which has already been sold in favour of a third party. In the event of the father not having sold the property, upon his death the daughter would have a right over the property allotted to her father along with her other siblings.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.14.<span style=\"white-space: pre;\">	</span>Thus I answer point No.2 by holding that a female Hindu cannot claim for partition on a disruption of a joint family, post coming into force of the amendment to the Hindu Succession Act giving raise for rejection of the plaint if a suit was to be filed by her.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>ANSWER TO POINT NO.3 : Whether a male coparcener having male children, on entering into a partition deed, the property so allocated to his share will become his exclusive share?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.4.<span style=\"white-space: pre;\">	</span>In the present case, the only averment made is that the property was purchased by the grandfather of the plaintiff and upon the death of the grandfather, the property was partitioned amongst his sons of whom defendantNo.1 is one.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.7.<span style=\"white-space: pre;\">	</span>The Apex Court in Banwar Singh\'s case (supra) has held that once a partition has occurred and property has fallen to the share of one of the members of the family, such member of the family had the requisite right to transfer the land fallen to his share.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.8.<span style=\"white-space: pre;\">	</span>In the present case, property on partition in the year 1994 fell to the share of defendant No.1 and it is defendant No.1 who has sold the property. There is no embargo on defendant No.1 to sell the property falling to his share which has been recognised by the Apex Court in Banwar Singh\'s case (supra). Hence, on this ground also the claim of the plaintiff that she is entitled to a partition is not sustainable since it is the property belonging to defendant No.1 which has been sold.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.12.<span style=\"white-space: pre;\">	</span>As referred to and adverted to above in view of the decision of the Hon’ble Apex Court in Chandrasen\'s case followed by Yudhistir and Uttam’s case, it is clear that the property which fell to the share of defendant No.1 on a partition in the year 1994 became his own self-acquired property in his hands.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.13.<span style=\"white-space: pre;\">	</span>Once the said property becomes the exclusive property of defendant No.1, the question of the plaintiff claiming any right as a joint family property would not at all arise. The decision in Chandrasen and Yudhistir’s case has also been reiterated by this Court in Shakunthala’s case (supra) which has been extracted herein above, wherein this Court has categorically held that once a property is devolved on a Hindu under Section 8 of the Hindu Succession Act, it would not be a HUF property in his hand vis-à-vis his son. The deeming fiction of the plaintiff being declared as a coparcener on account of the amendment cannot exceed the right of a son who is a coparcener under the Customary Hindu Law. Both the son and the daughter would have to be treated equally. Hence, when a son would not have a right to claim over the property of the father who was allocated a share in the said partition, the daughter cannot also claim such a right, since the defendant No.1- father did not take it as kartha of his own undivided family but has taken it in his own individual capacity.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.14.<span style=\"white-space: pre;\">	</span>The Madhya Pradesh High Court by referring to the decisions in Chandrasen as also Uttam’s case has applied the very same proposition and held that during the lifetime of the father, who has been allocated a share under a partition, the son cannot claim a right in the property. Thus, defendant No.1 being alive, the plaintiff – daughter cannot claim a right over the said property. These aspect has also been reiterated recently by the Hon’ble Apex Court in Vineetha Sharma’s case wherein the Hon’ble Apex Court has clearly and categorically held that any right claimed by a Hindu women after the amendment is subject to disposition, alienation partition or testamentary disposition which has taken place before 20th December 2004.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.15.<span style=\"white-space: pre;\">	</span>In the present case, partition having occurred on 01.06.1994 before the said date and the said partition having been given effect to, having been admitted by the plaintiff the plaintiff is estopped from contending otherwise.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.16.<span style=\"white-space: pre;\">	</span>Though Sri.H.R.Anantha Krishnamurthy has contended that the said partition is not a registered partition, the Hon’ble Apex Court in Vineetha Sharma’s case has categorically held that even if there is a oral partition, if the same is admitted and/or evidenced by any supporting public document, the same would be sufficient to establish the partition. In the present case, there would be no requirement to refer to any public document when there is a clear and categorical admission made by the plaintiff in para 3 of the plaint. Thus, when a male coparcener having male children has succeeded to a property upon a partition, the said property would become his exclusive share and none including a son or a daughter like respondent No.1 – plaintiff herein could claim a share in the same during the lifetime of the father.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.17.<span style=\"white-space: pre;\">	</span>Hence, following the decision of the Hon’ble Apex Court in Chander Sen’s case, Yudhister’s case, Banwar Singh\'s case and Shakunthala’s case of this Court, I answer Point No.3 by holding that on a partition having occurred and properties so allocated in male co-parcener having male children receives the property allocated to him in his individual capacity with full right of dispossession. It is only upon his death that his children will succeed to his estate.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>ANSWER TO POINT NO.4:&nbsp; &nbsp;Whether the order passed by the Trial Court suffers from any legal infirmity requiring this court to interfere in the matter?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.12.<span style=\"white-space: pre;\">	</span>This being also on account of sub cluse (5) of Section 6 of the amended Section 6 of the Hindu Succession Act wherein it is categorically stated that if there is a partition which has occurred prior to 20th December, 2004, then no rights would accrue on account of the amendment to a Hindu women. Admittedly, there being partition which has occurred prior to coming into force of the amendment and the contention of Sri.H.R.Anantha Krishnamurthy that the said partition has not been registered and being rejected by me by relying upon the decision of the Hon’ble Apex Court in Vineetha Sharma’s case, I am of the considered opinion that there being admission on the part of the plaintiff that there is partition, there would be no requirement for any further evidence to be led in the matter giving an opportunity to establish her claim under Section 6 of the Hindu Succession Act and to hold that in view of the partition, Section 8 of the Act would come into operation.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.13.<span style=\"white-space: pre;\">	</span>The Hon’ble Apex Court in several decisions has categorically held that once a partition occurs, if the property is allocated, the devolution would be under Section 8 of the Hindu Succession Act and once the devolution occurs under Section 8 of the Act, the question of applicability of Section 6 would not at all arise.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.14.<span style=\"white-space: pre;\">	</span>In the present case, the property having been allocated to defendant No.1 and he having sold the property to defendant No.4, it cannot be said that the plaintiff has any right over the property.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.15.<span style=\"white-space: pre;\">	</span>Hence, I answer point No.5 by holding that the order passed by the Trial Court is not appropriate and requires interference.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space: pre;\">	</span>What Order?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.1.<span style=\"white-space: pre;\">	</span>The impugned order dated 10.03.2021 passed by the Senior Civil Judge and JMFC at Devanahalli in O.S.No.680/2008 is set aside.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.2.<span style=\"white-space: pre;\">	</span>Consequently, I.A.No.11 filed by the defendant No.4 under Order 7 Rule 11[a] and [d] read with Order 12 Rule 6 read with Section 151 of CPC is allowed.&nbsp;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.3.<span style=\"white-space: pre;\">	</span>The plaint in O.S.No.680/2008 stands rejected.</b></font></p>', 'd9ceb95d4f119105fde414e899e2c530.JPG', '01e935f4714995ffd65ea02dde04fbc7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-14', 1, '', '', '2023-06-14 13:07:17', '2023-06-14 08:15:40'),
(3073, 'irvtPGTvLkMNp5MsEfOTOZxgC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transfer of license for distribution of essential commodities is governed by the Control Order prevalent at the time of grant of license. Restrictions imposed in the subsequent Order cannot be applied. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Naresh Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 102556 of 2023 decided on 24 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Pradeep Singh Yerur.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This petition is filed by the petitioner for issuance of writ of certiorari to quash the endorsement bearing No. Ahaar : Nya.be.am.pa.vya. : vahi : 02 /2021 - 2022 dated 17.03.2023 produced at Annexure-D issued by the 3rd respondent and for further relief of writ of mandamus to the 2nd and 3rd respondents to consider the application of the petitioner on compassionate ground without insisting the restrictions mentioned in the proviso to clause 13 of the Karnataka Essential Commodities Public Distribution System (Control) Order, 2016 (for short, ‘the Control Order, 2016’). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The father of petitioner was running a fair price shop under authority No.15/1996 in PDS area at Gadag and the licence was issued under the Karnataka Essential Commodities Licensing Order, 1992 by the competent authority i.e., respondent No.2. The same is renewed from time to time by the competent authority and is valid up to 31.12.2025. There is no dispute with regard to issuance of licence and validity of licence, which was issued to the father of petitioner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The father of petitioner died on 11.02.2022 due to which the petitioner sought for transfer of authorization in his name by way of filing an application dated 11.04.2022. The application filed by the petitioner came to be rejected by respondent No.3 on the ground of Clause 13 of the Control Order, 2016. It is seen that the 3rd respondent rejected the application of petitioner on the ground that the Control Order, 2016 had come into force, due to which, the petitioner is not entitled for transfer of licence as the Clause 13 prohibits the transfer of authorization or licence to any person other than the original licencee/authorized dealer. The learned counsel for the petitioner contends that as per the Clause 13 of the Control Order, 2016, the proviso to said Clause 13 does not bar the transfer of a licence in case of death of original holder of licence or authorized dealer. Learned counsel further contends that the order of rejection passed by the 3rd respondent is illegal and violative of proviso contained in the Clause 13 of the Control Order, 2016, the same requires to be set aside. Respondent Nos.2 and 3 be directed to consider the application of petitioner for transfer of licence from the deceased father of the petitioner on compassionate ground </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>The Clause 13 very specifically states that there shall not be any assignment made by the authorized dealer for transferring of his authorization to any other person and no person shall carry on his business as a transferee or otherwise on behalf of any such authorized dealer. The proviso to Clause 13 further stipulates a contention that such provisions are permitted in the event death of authorized dealer before 60 years of his age to the spouse or son or unmarried daughter, in case he or she is above 18 years and less than 60 years (or 40 years for unmarried daughters) of age having passed 10 standard and apply for transfer within 90 days of death of authorized dealer, with the prior approval of the Commissioner for a maximum period of 3 years. It is also relevant to note Clause 13 of the control Order of 1992, which reads as under :</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“13. Prohibition of Transfer of Authorization : No authorized dealer shall assign or transfer his authorization to any other person by and no person shall carry on business as a transferee or otherwise on behalf of any such authorized dealer. “Provided that the authorized authority may order for such transfer in the event of the death of the authorized dealer to the spouse or son or unmarried daughter with the prior approval of the Government”.” </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">8.<span style=\"white-space: pre;\">	</span>In the present case, licence for authorized dealer i.e., the father of petitioner was issued under authority No.15/1996 during the year 1996, so thereby the petitioner was governed under the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992 (for short, ‘the Control Order, 1992’). But the fact remains that the father of petitioner died on 11.02.2022. It is the relevant to note that vide the Control Order, 1992 there was no restrictions 0f age or any restrictions as prescribed by the Control Order, 2016 for approval of the licence/dealership. Therefore, the present licence issued under the Control Order, 1992 would have to be taken into consideration and not under the Control Order 2016. It is also seen that similar petitions were filed before this Court and by several judgments this Court has taken a view that in case of compassionate transfer of licence on the ground of death of original authorized dealer the restrictions so imposed in the Control Order, 2016 would not be applicable as when the licence or dealership was issued under the old prevailing Control Order of 1992 and the original authorized dealer has died pursuant to the Control Order, 2016 coming into force. The original authorization of grant of dealership would have to be made applicable to the case on hand and not the new prescription where the proviso lays down certain standards and conditions. The fact remains that the father of petitioner was an authorized dealer having a valid licence, died in the year 2022. The petitioner being the son and legal heir of deceased made an application for transfer of licence on compassionate ground. The prescriptions prescribed in the Control Order, 2016 as per Clause 13, in my opinion, may not be applicable to the present case on hand where restrictions are imposed with regard to the educational qualification and time period for filing of the application. It is also relevant to note that age limit of 60 years has been further extended by another amendment to the Karnataka Essential Commodities (Public District System) Control Order, 2017. A similar case was decided by this Court in Writ Petition No.105404/2018 (GM-PDS), 04.12.2018, wherein this Court allowed the petition. Paragraph No.6 of the said Judgment reads as under :</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>“6. There is substance in the argument of the learned counsel for the petitioner when he submits that this Court, while considering the proviso to Clause 13 of the Control Order, 2016 has held that the prescription of age and the minimum educational qualification for persons who seek transfer on compassionate grounds cannot be made applicable and directed the Authorities to consider their applications without insisting on the minimum educational qualification and the age limit prescribed in the proviso and when that being the case, the technical ground of making the application within a period of 90 days also should not be made applicable or should be considered with leniency.”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 9.<span style=\"white-space: pre;\">	</span>Therefore, I am of the opinion that the rejection order passed by the 3rd respondent for transfer of authorization or dealership in the name of petitioner referring to Clause 13 of Control Order, 2016 deserves to be set aside and accordingly it is set aside. Accordingly, the application made by the petitioner for consideration of transfer of authority in the name of petitioner deserves to be considered by the 3rd respondent.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space: pre;\">	</span>Writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '337833bd59224ce750dcaee7c2bb96f2.JPG', '18ec19695f592e38114c5b15b8c01f51.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-19', 1, '', '', '2023-06-15 15:22:55', '2023-06-19 06:28:54');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3071, 'l8o5RTOBOhfBXLpztTaknOuwM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for partition filed three years after the minor coparcener attaining majority merely pleading that alienation of ancestral properties by karta is not binding on him is barred by law of limitation. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rangahanumaiah Thr LRS and others Vs Devaraju and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 209 of 2007 decided on 2 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The factual matrix of the case of the plaintiffs, while seeking the relief of partition and separate possession of their 2/3rd share in the suit schedule property is that suit schedule property is the ancestral Hindu Joint Family property i.e., the plaintiffs and second defendant. The plaintiffs and second defendants were in joint possession of the suit schedule property. The family of the plaintiffs and second defendant was in affluent circumstances and there was no need to the family to incur the debts. The first defendant is a stranger to the family and second defendant has no exclusive right and possession over the suit schedule property to sell the same. The first defendant is interfering with the possession of the suit schedule property. When questioned the same, the first defendant denied the title of the plaintiffs over the suit schedule property by saying  that he has purchased the suit schedule property from the second defendant. It is contended that the second defendant has no manner of right to alienate the suit schedule property in favour of any person, much less the first defendant. The second defendant at worst, can alienate his share and not the share of the plaintiff Nos.1 and 2. If any alienation is made by the second defendant in favour of the first defendant, the same is not binding on the plaintiffs. Hence, sought for the relief of partition. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>In pursuance of the suit summons, the first defendant appeared before the Court and filed the written statement contending that age of the first plaintiff at the time of filing the suit was 30 years and the second defendant was 28 years of age and the plaintiffs have given false age as 20 years and 18 years at the time of filing the suit. It is contended that, in order to prove the fact that the suit is within the law of limitation, false averments are made in the plaint and suit is barred by limitation. It is contended that, suit is not filed within three years, after they have attained the age of majority. It is contended that the suit schedule property is also not the Hindu Joint Family property as contended by the plaintiffs and second defendant and they are also not in joint possession as contended in the plaint. It is contended that, immediately on the date of sale itself, possession was delivered in favour of the first defendant and hence, the question of joint possession does not arise. The sale is made by the second defendant for valuable sale consideration and in order to clear the loan, he had sold the property and the same is for the family benefit and legal necessity and hence, there is a cause of action for filing the suit. It is also contended that, property was sold in the year 1974 and suit was filed in 1993, almost after 19 years of sale of the property and that too, the second defendant had obtained loan from P.L.O. Bank, Koratagere for some other persons and for himself and his family benefit and in order to discharge the said loan, he had sold the property.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space: pre;\">	</span>Having heard the respective counsel and also the grounds urged in the appeal and also the principles laid down in the judgment referred by the learned counsel for the respondents, this Court has to analyze the material on record. This Court, while admitting the appeal, framed the following substantial questions of law: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>1)<span style=\"white-space: pre;\">	</span>Whether the learned District Judge who has exercised the appellate power could have accepted the appeal filed against the judgment and decree of Civil Judge (Jr.Dn.), which normally would lie on the Civil Judge (Sr.Dn.)? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2)<span style=\"white-space: pre;\">	</span>Whether the judgment impugned of the Appellate Court is maintainable in the absence of specific findings that the suit was barred by time? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">3)<span style=\"white-space: pre;\">	</span>Whether the suit only for partial partition was maintainable?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space: pre;\">	</span>In order to consider these substantial questions of law and also having considered the material on record, this Court has to consider the finding of appeal filed before the II Additional District Judge and also the judgment and decree passed by the Civil Judge, Junior Division. On perusal of the records, it discloses that appeal was filed before the Civil Judge and the same is numbered as R.A.No.101/1997 and thereafter, the same was made over to the District Court. Hence, the District Court has taken up the matter and considered the matter on merits. Hence, it is clear that District Judge has considered the appeal filed against the judgment and decree of the Civil Judge, Junior Division on merits. Hence, I answer the first substantial question of law that the District Judge has exercised the appellate power, in view of the same being made over to District Court and the appeal was filed rightly before the Civil Judge, Senior Division and consequent upon transfer, the same was considered on merits.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>22.<span style=\"white-space: pre;\">	</span>It is also important to note that, suit is filed in the year 1993 but, the plaintiffs claim that they were aged about 20 years and 18 years at the time of filing the suit. In order to substantiate the fact that they were aged about 20 years and 18 years at the time of filing the suit, no material is placed before the Court. The Trial Court as well as the First Appellate Court has blindly accepted the oral evidence of plaintiffs, instead of considering the 30 year old document of Ex.D13 which is marked through the person, who is the custodian of the said document i.e., the Register Admission Book and no explanation on the part of the first plaintiff to show that he is an illiterate and in order to prove that he is an illiterate also, no document before the Court and both the Courts have committed an error in accepting the contention of the plaintiffs. The material on record is very clear that the suit was filed after 19 years of sale made by the father and the document Ex.D13 discloses that he was aged about 32 years on the date of filing of the suit since, the date of birth in the school records is of 1961. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space: pre;\">	</span>It is settled law that, when the sale is challenged by the minor children, they have to seek for the relief within three years of sale and Article 60 is applicable to challenge the said sale. It is also important to note that suit is filed only for the relief of partition and not questioned the sale deed and even, not contended that the sale is not binding on him and this Court, in the judgment reported in ILR 2014 KAR 1293, wherein this Court, considering the material on record with regard to application of Article 60 of Limitation Act, 1963 held that, when there is a transfer of minor’s interest by the natural guardian and suit is filed for setting aside the sale from the date of minor attaining the age of majority, the transfer of minor’s property by a natural guardian in contravention of Clauses (2) and (3) of Section 8 of the Act of 1956 is a voidable transaction and suit to set-aside the sale and for possession has to be filed within 3 years under Article 60 of the Limitation Act and further held that, suit for a declaration that the sale deed is not binding on her interest in the suit property and this relief is similar to setting aside the sale, which is contemplated under Article 60 of the Limitation Act and in the absence of the said relief, the suit itself cannot be maintained and ought to have filed the suit within three years.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>27.<span style=\"white-space: pre;\">	</span>It is also important to note that the document which the learned counsel for the respondents relies upon to consider the grounds urged in this appeal is very clear that possession was delivered on the date of sale in the year 1974 itself, inspite of it, both the Courts while answering issue No.1 as ‘affirmative’ comes to the conclusion that the plaintiff Nos.1 and 2 and also the second defendant are in joint possession of the property. It is nothing but an attempt made to question the sale made by the father of the second defendant after 19 years of sale and doctrine of acquiescence is applicable to the case on hand. Apart from that, suit is barred by limitation and suit has to be filed within three years immediately after attaining majority and both the Courts failed to take note of the conduct and while filing the suit, the age of the plaintiffs is mentioned as 20 years and 18 years respectively and failed to take note of the fact that the first plaintiff has signed the plaint and also the vakalath as Devarajaiah but, he contend that his name is Devaraju, though the document at Ex.D13 mentions his name as Devarajaiah.    Hence, the very conduct of the plaintiffs has not been appreciated by the Trial Court and also the First Appellate Court and when the suit is barred by limitation, ought not to have entertained the suit. Hence, I answer the second substantial question of law as framed by this Court whether the judgment impugned of the Appellate Court is maintainable in the absence of specific findings that the suit was barred by time is maintainable, since the appellate Court has to consider the same and the same is a question of law and even though, no ground is urged, as a First Appellate Court, ought to have considered the same but, not considered the same and this Court, while exercising the power under Section 100 of C.P.C. can consider the same as substantive question of law. Therefore, I answer the second substantial question of law accordingly.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>28.<span style=\"white-space: pre;\">	</span>The third substantial question of law is whether the suit only for partial partition was maintainable. No doubt, on perusal of the plaint, it is seen that the suit is filed only for the property which was sold by the second defendant in favour of the first defendant, not disputes the fact that the minors were not the parties. But when the plaintiffs have challenged the very sale contending that their father was not having absolute right, but filed the suit only for the relief of partition and not included all the family properties. No doubt, the appellants have also not produced any documents before the Trial Court but, now, they have made an attempt to produce the documents that the plaintiffs’ family was having other properties by invoking Order 41 Rule 27 of C.P.C. and those documents are pertaining to the properties purchased by the father even prior to the selling of the property and encumbrance certificate also discloses the same.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>29.<span style=\"white-space: pre;\">	</span>No doubt, the counsel for the respondent would contend that unless those documents are admitted and given an opportunity, those documents cannot be relied upon in the second appeal and the appellants have also not made any efforts before the Trial Court as well as the First Appellate Court and only the Court can exercise the powers under Order 41 Rule 27 of CPC if the appellants are diligent in producing the documents and no such diligence is shown by the appellants. However, it is important to note that the plaintiffs themselves have produced the document at Ex.P5 – loan clearance certificate issued by the bank in the year 1984 to show that they have cleared the loan but no date of loan is mentioned in that document. But it is clear that the alleged loan clearance certificate is in respect of Sy.No.42/2 and their own document itself clearly discloses that the family was having the other properties and they have availed loan and cleared the same and this document is produced before the Trial Court to show that there was no need to sell the property as the family availed loan by pledging document of the family. But the document is clear that the loan was cleared in the year 1984 but no details are mentioned to show that when the loan was obtained and the document at Ex.P5 clearly show that the family is having other property in Sy.No.42/2. Hence, it is clear that other properties were there in respect of the family. Thus, the Court has to take note of the conduct while filing of the suit only in respect of the property which was sold by the father, a suit is filed for the relief of partition. Hence, I answer point No.3 that the suit is filed only for partial partition which is not maintainable by answering third substantial question of law.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>The second appeal is allowed.</b></font></span></p>', '5bd58c877a4929e53fb7cf2e3b913e93.jpeg', 'd95a934a25ffd9ceefa8b15a14bb7917.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-15', 1, '', '', '2023-06-15 14:21:33', '2023-06-15 14:23:45'),
(3075, 'B7Mi3jZtu4ezANan0aMIJgkHP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Counter claim need not be within the pecuniary jurisdiction of a Court. When counter claim exceeds pecuniary jurisdiction, the Court shall return the plaint under Order 7 Rule 10 CPC to be presented before the proper Court. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Shah Polymers Vs M/S Canara Poly Pack Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Miscellaneous First Appeal 8207 of 2017 decided on 12 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The factual matrix of the case is that the plaintiff has filed the suit for the relief of permanent injunction in respect of the properties which is situated at Nelamangala Taluk. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>The defendants have also appeared and filed the written statement and made counter claim for Rs.54,26,920.79/- and the same exceeds the pecuniary jurisdiction of the Court. The Trial Court, considering the counter claim, comes to the conclusion that the same exceeds the pecuniary jurisdiction of the Court and the Court has no pecuniary jurisdiction to try the counter claim. Hence, the claim has to be returned for presentation before the appropriate Court.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>Having heard the respective counsel and also considering the material available on record, particularly, the order impugned before this Court is very clear that the suit is filed in Bengaluru Rural Court and the Court came to the conclusion that the property situated within the jurisdiction of Nelamangala and the Court is not having the territorial jurisdiction to entertain the suit. Admittedly, the suit is filed for the relief of bare injunction and ought to have been filed the same before the Court, which is having the jurisdiction and the suit is filed before Bengaluru Rural District and no dispute with regard to the fact that the property is situated at Nelamangala. Hence, in the order impugned by making an observation with regard to the first aspect is that an order has been passed on 04.07.2013, that to return of plaint for presentation of the same before the Civil Judge, Nelamangala on the ground that the suit schedule properties are situated within the territorial jurisdiction of Nelamangala Court. Hence, I do not find any error in returning the plaint on the ground that the Court is not having the territorial jurisdiction to entertain the suit since the suit is filed for the relief of bare injunction. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>The second aspect with regard to the contention of the learned counsel for the appellant is that the counter claim should not exceed in terms of the proviso of Order 6A, while making counter claim by the defendants that such counter claim shall not exceed the pecuniary limits of the jurisdiction of the Court. On perusal of the material also in the counter claim, the defendants made the claim to the extent of Rs.54,26,920.79 paise, the same exceeds the pecuniary jurisdiction of the Court since the pecuniary jurisdiction of the particular Court is only for an amount of Rs.5 Lakhs. If it exceeds more, the same has to be tried in a competent Court of jurisdiction. The principles laid down in the judgment of this Court in Syed Imtiyaz’s case (supra), wherein, an issue was arisen before this Court with regard to the pecuniary jurisdiction is concerned, wherein, the defendant made the claim that there was a sale agreement and sale consideration is Rs.5,20,000/-, the same exceeds the pecuniary jurisdiction of the particular Court. Consequently, an application is also filed under Order 7, Rule 10 of C.P.C., and the Trial Court instead of allowing the application directed to file a fresh suit and the same is challenged before the Court. This Court having considered the Order 7, Rule 10 of C.P.C., the counter claim has to be treated as plaint subject to the provisions of Rule 10A of Order VII, the same shall be returned for being presented before the Competent Court and further observed that as per sub-Rule(2) to Rule 10 of Order VII of CPC on returning of a counter claim, the judge shall endorse thereon the date of its presentation and return. When the procedure has not been followed, set aside the order and directed the Trial Court to pass appropriate orders in the light of the observations made above. Hence, it is very clear that instead of ordering to file a separate suit, the Court has to consider the order and pass appropriate orders. In the case on hand, when the claim is made which exceeds the pecuniary jurisdiction of the particular Court and the said Court cannot decide the issue involved between the parties with regard to the pecuniary jurisdiction is concerned. When such being the case, the matter has to be returned to the particular Court, which is having jurisdiction to entertain the suit. The principles laid down in the judgment of the Calcutta High Court in Sharmistha Biswas’s case (supra), is also aptly applicable to the case on hand.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 11.<span style=\"white-space: pre;\">	</span>Having considered the principles laid down by this Court as well as the Calcutta High Court and the order passed by the Trial Court, on one ground it is ordered to return on the ground of no territorial jurisdiction. The second ground is that the Court is not having the pecuniary jurisdiction to entertain the counter claim. There is a force in the contention of the learned counsel appearing for the respondents that when the counter claim is made, the same has to be treated as plaint and the matter has to be adjudicated by the competent Court of law. When such being the material on record, I do not find any error committed by the Trial Court invoking Order VII Rule 10 of CPC directing the office to return the counter claim to the defendants for presentation before the proper Court. According to Order 7, Rule 10 of C.P.C, the Trial Court exercised the proper jurisdiction to return the plaint to present the same before the appropriate Court. The very contention of the learned counsel is that in view of the provisions of Order VIII Rule 6A(4) of CPC, such counter claim shall not exceed the pecuniary limits of jurisdiction of the Court cannot be accepted. The claim is made, which is exceeding Rs.5 Lakhs and whether the Court is having jurisdiction to consider the counter claim has to be considered by the Court. Accordingly, the Trial Court has considered the pecuniary jurisdiction, which is not having with the said Court. Hence, ordered to return the plaint to present the same before the Competent Court of law to consider both the aspects of territorial jurisdiction as well as the pecuniary jurisdiction. Hence, I do not find any merit in the appeal to set aside the order of the Trial Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The appeal is dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '68d2f3528c3e9c938cb7c0470136fd81.JPG', '0047ed581b33a018957913a22990b9c1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-19', 1, '', '', '2023-06-18 11:32:49', '2023-06-19 03:21:57'),
(3076, 'U57x1vFXHcAg3k6jGsFHqtT4H', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'Unless the offences are found prima facie, criminal proceedings in matrimonial cases should not be permitted to continue\'. Karnataka High Court quashes proceedings against husband who refused to consummate marriage following Bramhakumari preaching. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Aiyappa M.B and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 7067 of 2023 decided on 16 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The petitioners/accused Nos.1 to 3 are before this Court calling in question proceedings in C.C.No.15166 of 2020, pending before the XXX Additional Chief Metropolitan Magistrate, Bengaluru, arising out of Crime No.15 of 2020, registered for offences punishable under Sections 498A r/w. 34 of the IPC and Section 4 of the Dowry Prohibition Act, 1961.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The facts in brief, as projected by the prosecution, are as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The 1st petitioner is accused No.1 and 2nd and 3rd petitioners are accused Nos.2 and 3. The 2nd respondent is the complainant. The 1st petitioner is the husband of the complainant. The 1st petitioner and the complainant get married on 18.12.2019. The marriage between the 1st petitioner and the complainant turned sore immediately after marriage. The complainant stayed with the husband in the matrimonial house only for 28 days. Venting out various grievances, the complainant walks out and seeks to register two proceedings – one setting the criminal law in motion by registering a complaint before the jurisdictional Police on 05-02-2020, which becomes a crime in Crime No.15 of 2020 for offences punishable under Section 498A of the IPC and another proceeding in M.C.No.586 of 2020 filed under Section 12(1)(a) of the Hindu Marriage Act, 1955, seeking annulment of marriage on the ground of cruelty. The police after investigation filed a charge sheet in the matter against the petitioners and filing of charge sheet leads the petitioners to this Court in the subject petition.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>The afore-narrated facts are not in dispute. They lie in a narrow compass as the relationship between the 1st petitioner and the complainant is an admitted fact and it is also admitted that they stayed together only for 28 days. It is the happenings in those 28 days that is what is projected by the complainant. The 1st petitioner and the complainant get married on 18-12-2019 and barely two months thereafter, on 05-02-2020 the complainant registers a complaint. Since the issue has triggered from the complaint, I deem it appropriate to notice the complaint to consider whether it would make the ingredients of offences so alleged.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>Insofar as accused 2 and 3/mother-in-law and father-in- law are concerned, the complaint or the summary of the charge sheet on the face of it, does not make out an iota of ingredient of Section 498A of the IPC. Section 498A of the IPC has two parts in it which define cruelty. Cruelty would mean any willful conduct which is of the nature as is likely to drive a woman to commit suicide or cause grave injury or danger to the life of the woman. The other part is harassment, where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand. The section itself punishes the husband or the relative who subjects a woman to such cruelty.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>A perusal at the complaint would indicate no ingredient of any cruelty by the in-laws i.e., father-in-law and the mother-in-law and it is an admitted fact that the parents never stayed with the couple. In the teeth of such facts, if further proceedings are permitted to continue against the parents, it would become an abuse of the process of law and run foul of the judgment of the Apex Court in the case of KAHKASHAN KAUSAR v. STATE OF BIHAR wherein it is held as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“Issue Involved</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“10. Having perused the relevant facts and contentions made by the Appellants and Respondents, in our considered opinion, the foremost issue which requires determination in the instant case is whether allegations made against the in-laws Appellants are in the nature of general omnibus allegations and therefore liable to be quashed?</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>11.<span style=\"white-space: pre;\">	</span>Before we delve into greater detail on the nature and content of allegations made, it becomes pertinent to mention that incorporation of section 498A of IPC was aimed at preventing cruelty committed upon a woman by her husband and her in-laws, by facilitating rapid state intervention. However, it is equally true, that in recent times, matrimonial litigation in the country has also increased significantly and there is a greater disaffection and friction surrounding the institution of marriage, now, more than ever. This has resulted in an increased tendency to employ provisions such as 498A IPC as instruments to settle personal scores against the husband and his relatives.<br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>18.<span style=\"white-space:pre\">	</span>Coming to the facts of this case, upon a perusal of the contents of the FIR dated 01.04.19, it is revealed that general allegations are levelled against the Appellants. The complainant alleged that ‘all accused harassed her mentally and threatened her of terminating her pregnancy’. Furthermore, no specific and distinct allegations have been made against either of the Appellants herein, i.e., none of the Appellants have been attributed any specific role in furtherance of the general allegations made against them. This simply leads to a situation wherein one fails to ascertain the role played by each accused in furtherance of the offence. The allegations are therefore general and omnibus and can at best be said to have been made out on account of small skirmishes. Insofar as husband is concerned, since he has not appealed against the order of the High court, we have not examined the veracity of allegations made against him. However, as far as the Appellants are concerned, the allegations made against them being general and omnibus, do not warrant prosecution.<br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>21.<span style=\"white-space:pre\">	</span>Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the accused appellants, it would be unjust if the Appellants are forced to go through the tribulations of a trial, i.e., general and omnibus allegations cannot manifest in a situation where the relatives of the complainant\'s husband are forced to undergo trial. It has been highlighted by this court in varied instances, that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>22.<span style=\"white-space:pre\">	</span>Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the accused appellants, it would be unjust if the Appellants are forced to go through the tribulations of a trial, i.e., general  and  omnibus allegations cannot manifest in a situation where the relatives of the complainant’s husband are forced to undergo trial. It has been highlighted by this court in varied instances, that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged.”</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In the light of the judgment of the Apex Court as afore-extracted, the proceedings against in-laws are required to be obliterated. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>Insofar as the husband/1st petitioner is concerned, the complaint narrates several grievances and those grievances are trivial in nature. It is the averment that the complainant knew about the attitude of the husband. Even then, she gets married due to the force of elders of the family thinking that the husband would become alright and stayed only for 28 days in the matrimonial house. In those 28 days, neither the complaint nor the summary charge sheet narrates any factum/incident that would become an ingredient of Section 498A of the IPC. The only allegation is that, he is a follower of Brahmakumari; always was watching videos of one sister Shivani, a Brahmakumari; gets inspired by watching those videos, always told that love is never getting physical, it should be soul to soul. On this score, he never intended to have physical relationship with his wife. This would undoubtedly amount to cruelty due to non-consummation of marriage under Section 12(1)(a) of the Hindu Marriage Act and not cruelty as is defined under Section 498A of the IPC. It is on the basis of such cruelty a decree of divorce is granted to the complainant and on the same basis, criminal proceedings cannot be permitted to be continued. Finding no ingredient even against the husband, the proceedings if permitted to continue would degenerate into harassment, become an abuse of the process of law and ultimately result in miscarriage of justice. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>In matrimonial cases, the Apex Court has time and again directed that unless the offences are found albeit prima facie, such proceedings should not be permitted to continue. The Apex Court in the case of SHAFIYA KHAN v. STATE OF UTTAR PRADESH AND ANOTHER, has held as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i> “18. Although it is true that it was not open for the Court to embark upon any enquiry as to the reliability or genuineness of the allegations made in the FIR, but at least there has to be some factual supporting material for what has been alleged in the FIR which is completely missing in the present case and documentary evidence on record clearly supports that her Nikah Nama was duly registered and issued by competent authority and even the charge-sheet filed against her does not prima facie disclose how the marriage certificate was forged.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>19. In the given circumstances and going through the complaint on the basis of which FIR was registered and other material placed on record, we are of the considered view that no offence of any kind as has been alleged in the FIR, has been made out against the appellant and if we allow the criminal proceedings to continue, it will be nothing but a clear abuse of the process of law and will be a mental trauma to the appellant which has been completely overlooked by the High Court while dismissing the petition filed at her instance under Section 482 CrPC.”</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>In the light of the judgments rendered by the Apex Court in the cases of KAHKASHAN KAUSAR and SHAFIYA KHAN (supra), I deem it appropriate to exercise the inherent jurisdiction under Section 482 of the Cr.P.C. and obliterate entire proceedings against all the accused.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>a.<span style=\"white-space:pre\">	</span>The Criminal petition is allowed. </b><br></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c539b4c8bfbdf767f72f6f7e9f147e11.jpeg', '571e0614e8b4a90ec7d203297afb6a2c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-21', 1, '', '', '2023-06-18 11:43:50', '2023-06-21 12:21:10');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3077, 'rVgxKUSliFRTm3Z6pTCWa4GAs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Pardon under Section 306 Cr.P.C. If pardon leads to successful prosecution of the other offenders whose conviction is not easy without the approver’s testimony, the Court should accept it. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Shree Mallikarjun Shipping Pvt Ltd and others Vs CBI and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 1152 of 2022 decided on 16 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioners/accused 5 and 6 are before this Court calling in question order dated 07-10-2021 passed by the LXXXI Additional City Civil and Sessions Judge and Special Judge to deal with criminal cases related to MPs/MLAs in the State of Karnataka, Bangalore City in Special C.C.No.54 of 2014 whereby the concerned Court allows the petition of accused No.4 on an application filed under Section 306 of the Cr.P.C., seeking pardon on turning as an approver. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The facts adumbrated are as follows:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> A crime comes to be registered against several accused including the petitioners/accused 5 and 6 and the 2nd respondent /accused No.4 in RC 17(A)/2012. The crime is registered by the Central Bureau of Investigation (‘CBI’). The CBI after investigation files a charge sheet against all the accused. After filing of the charge sheet by the CBI, when the matter was posted for framing of charge, several accused filed discharge applications and those applications come to be dismissed in terms of the order of the Special Judge dated 10-11-2016. The discharge application was filed by accused No.4/respondent No.2 as well. The Court further directed framing of charge against accused No.1 for offences punishable under Sections 120B r/w 409 and 420 of the IPC and Section 13(2) r/w 13(1)(c) and (d) of the Prevention of Corruption Act, 1988 and against accused 2 and 4, one of whom was 2nd respondent for offences punishable under Sections 120B, 409 and 420 of the IPC. The said order of framing of charge was called in question before this Court in Criminal Petition No.368 of 2017 along with several other connected cases. All those petitions come to be dismissed directing continuance of trial against all the accused. Therefore, charges were sought to be framed by posting the matter for framing of charges. At that stage, the 2nd respondent/ accused No.4 files an application under Section 306 of the Cr.P.C., for grant of pardon</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">. 3.<span style=\"white-space: pre;\">	</span>The contention of the 2nd respondent was that he was only an employee of accused No.2-Company, was well acquainted with the day-to-day affairs of the Company and he has been arrayed as accused in the representative capacity as also individual capacity alleging the afore-quoted offences. He was willing to turn as approver in the event pardon would be granted under Section 306 of the IPC. The CBI files a memo stating that it has no objection to the application filed by accused No.4/2nd respondent and the contention was that he should give his statement under Section 164 of the Cr.P.C., disclosing all the facts. After considering the application and submissions of respective parties, the learned Special Judge by the impugned order allows the application, grants pardon to the 2nd respondent /accused No.4. It is this order that is called in question by the co-accused – accused Nos. 5 and 6.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>The afore-narrated facts are not in dispute. The issue brought before this Court lies in a narrow compass. It is a fact that petitioners/accused 5 and 6 and the 2nd respondent/ accused No.4 were all accused in Special C.C.No.54 of 2014 before the Special Court for the afore-quoted offences. All the accused in one breath sought discharge from the array of accused. Such discharge application comes to be rejected on 10-11-2016. All the accused then call the said order in question before this Court in a petition filed under Section 482 of the Cr.P.C., in Criminal Petition 368 of 2017 and connected cases and all of which come to be dismissed on 16-10-2020. Therefore ended the saga of discharge and the concerned Court posted the matter for framing of charges. At that juncture, the 2nd respondent/accused No.4 comes up with an application under Section 306 of the Cr.P.C., seeking pardon from the proceedings. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Section 306 mandates concerned Court to accept an application filed seeking tender of pardon to any accomplice in the crime, subject to the condition that once pardoned he should make a full and true disclosure of whole of the circumstances within his knowledge to the Court concerning the issue. It is in terms of the aforesaid provision the 2nd respondent/accused No.4 files the application. </span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>The issue now is, whether the aforesaid order warrants any interference by this Court at the hands of co-accused, when the purport of the provision or the soul of the criminal justice system is discovery of truth by all means even by procuring additional evidence. Section 306 of the Cr.P.C. is in the statute book for that purpose and the ingredients of the said section is that one who seeks pardon will turn an approver and one who turns as approver will divulge all facts within his knowledge under Section 164 of the Cr.P.C. The only rider to the said power to be exercised by the concerned Court on an application under Section 306 of the Cr.P.C. is that it should not be an order which bears no application of mind. It should be an order which contains reasons as to why a pardon is granted to the co-accused and those reasons should be recorded in writing and such writing should reflect application of mind. All these traits that are necessary for passing the order under Section 306 of the Cr.P.C. are indubitably present in the order impugned. It is germane to notice a three Judge Bench judgment of the Apex Court interpreting Sections 337 to 339 of the Cr.P.C. in LT.COMMANDER PASCAL FERNANDES v. STATE OF MAHARASHTRA AND OTHERS wherein the Apex Court has held as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“6. Before we discuss the validity or propriety of the tender of pardon to Jagasia we shall refer briefly to the statutory provisions on the subject of the tender of pardon. The topic of tender of pardon to an accomplice is treated in the twenty-fourth chapter of the Code as part of the general provisions as to inquiries and trials. Sections 337 to 339 and 339-A contain all the provisions which refer to courts of criminal jurisdiction established under the Code. The Special Judge created under the Criminal Law Amendment Act, 1952 (Act 46 of 1952) is not one of them. For the cases triable by Special Judges under the Criminal Law Amendment Act a special provision is to be found in Section 8(2) of that Act, for tender of pardon to an accomplice, as part of the procedure and powers of Special Judges. The section is set out below [ “8 Procedure and powers of special judges—(1) A special judge may take cognizance of offences without the accused being committed to him for trial, and in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1898 (Act V of 1898), for the trial of warrant cases by magistrates(2) A special judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof; and any pardon so tendered shall, for the purposes of sections 339 and 339-A of the Code of Criminal Procedure, 1898, be deemed to have been tendered under section 338 of that Code(3) Save as provided in sub-section (1) or sub- section (2), the provisions of the Code of Criminal Procedure, 1898 shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special judge; and for the purposes of the said provisions, the court of the special judge shall be deemed to be a court of session trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a special judge shall be deemed to be a public prosecutor(4) * * *] . The second sub-section necessarily differs in some respects from the provisions of the Code because the procedure of trial before the Special Judge is different, but on the tender of pardon by the Special Judge the provisions of Sections 339 and 339-A of the Code apply.<br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i>10... The proviso makes provision for situations where the offence is under enquiry or trial. The section applies when the offence is not before the Special Judge for trial. This will appear presently. The remaining sub-sections of Section 337 are procedural. Sub-section (1-A) enjoins the recording of reasons for tendering pardon and the giving of a copy on payment or free of cost to the accused. Sub-section (2) lays down that a person accepting pardon shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. Sub-section (2-A) requires that if the Magistrate has reason to believe that the accused is guilty of an offence, the accused shall be committed to the Court of Session. Sub-section (2-B) is an exception to sub-section (2-A).<br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><i>11.<span style=\"white-space:pre\">	</span>It follows that the powers of the Special Judge are not circumscribed by any condition except one, namely, that the action must be with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to an offence. The pardon so tendered is also on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor. The disclosure must be complete as to himself and as to any other person concerned as principal or abettor. There is no provision for the recording of reasons for so doing, nor is the Special Judge required to furnish a copy to the accused. There is no provision for recording a preliminary statement of the person.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><i>12.<span style=\"white-space:pre\">	</span>There can be no doubt that the section is enabling and its terms are wide enough to enable the Special Judge to tender a pardon to any person who is supposed to have been directly or indirectly concerned in, or privy to an offence. This must necessarily include a person arraigned before him. But it may be possible to tender pardon to a person not so arraigned. The power so conferred can also be exercised at any time after the case is received for trial and before its conclusion. There is nothing in the language of the section to show that the Special Judge must be moved by the prosecution. He may consider an offer by an accused as in this case. The action, therefore, was not outside the jurisdiction of the Special Judge in this case.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><i>15.<span style=\"white-space:pre\">	</span>In this case the Special Judge made no effort to find out what Jagasia had to disclose. The English law and practice is (a) to omit the proposed approver from the indictment, or (b) to take his plea of guilty on arraignment, or (c) to offer no evidence and permit his acquittal, or (d) to enter a nolle prosequi. In our criminal jurisdiction there is a tender of a pardon on condition of full disclosure. Section 8(2) of the Criminal Law Amendment Act is enabling. Without recourse to it an accused person cannot be examined as a witness in the same case against another accused. To determine whether the accused\'s testimony as an approver is likely to advance the interest of justice, the Special Judge must have material before him to show what the nature of that testimony will be. Ordinarily it is for the prosecution to ask that a particular accused, out of several may be tendered pardon. But even where the accused directly applies to the Special Judge, he must first refer the request to the prosecuting agency. It is not for the Special Judge to enter the ring as a veritable director of prosecution. The power which the Special Judge exercises is not on his own behalf but on behalf of the prosecuting agency and must, therefore, be exercised only when the prossecuting joins tendered pardon because it does not need approver\'s testimony. It may also not like the tender of pardon to the the crime or the worst offender. The proper course for the Special Judge is to ask for a statement from the prosecution on the request of the prisoner. If the prosecution thinks that the tender of pardon will be in the interests of a successful prosecution of the other offenders whose conviction is not easy without the approver\'s testimony, it will indubitably agree to the tendering of pardon. The Special Judge (or the Magistrate) must not take on himself the task of determining the propriety of tendering pardon in the circumstances of the case. The learned Special Judge did not bear these considerations in mind and took on himself something from which he should have kept aloof. All that he should have done was to have asked for the opinion of the public prosecutor on the proposal. But since the Public Prosecutor, when appearing in the High Court, stated that the prosecution also considered favourably the tender of pardon to Jagasia we say no more than to caution Magistrates and Judges in the matter of tender of pardon suo motu at the request of the accused. This practice is to be avoided. Since the prosecution in this case also wants that the tender of pardon be made it is obvious that the appeal must fail. It will accordingly be dismissed.\"</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>11.<span style=\"white-space:pre\">	</span>In the light of the aforesaid judgment of the Apex Court which considers the provisions which were earlier in the statute book, akin to Section 306 of the Cr.P.C. dealing with tendering of pardon, pardon is a permissible exercise of power by the concerned Court and if full disclosure of fact are coming about in terms of the said pardon, such pardon should be permitted.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b> 12.<span style=\"white-space:pre\">	</span>Insofar as the judgment relied on by the learned counsel for the petitioner in case of ASHOK KUMAR AGGARWAL (supra) an order of grant of pardon can be assailed on limited grounds and the said ground would be for the reason that the concerned Court does not consider any of the relevant material while disposing of the application under Section 306 Cr.P.C. The effect of grant of such pardon is also taken note of by the Apex Court in the aforesaid judgment. But, the crux of the issue before the Court is found at paragraphs 25 and 26. The Apex Court holds that if by tendering of pardon prosecution thinks that it will be in the best interest of the successful prosecution of the other offenders whose conviction is not easy without the approver’s testimony, then the Court should accept it.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>13.<span style=\"white-space:pre\">	</span>The CBI and 2nd respondent/accused No.4 have filed their detailed objections. The objections of the CBI seek to bring about that for the possible conviction of the co-accused, full disclosure of facts by 2nd respondent/accused No.4 would be imperative. Therefore, the CBI has no objection to the said application. The criteria as directed by the Apex Court in the afore-quoted judgment relied on by the learned counsel for the petitioner has been adequately met in the impugned order. It is a well reasoned order which takes note of several judgments on the issue rendered by the Apex Court and allows the application filed by accused No.4. Therefore, I do not find any warrant to interfere with the order passed by the concerned Court. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>14.<span style=\"white-space:pre\">	</span>The petition lacking in merit, stands dismissed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3a010f8bd405d95c7c9a8acb2a06520c.jpeg', 'b53e13e0c15c8e00bd00315bc27d2922.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-19', 1, '', '', '2023-06-18 11:54:54', '2023-06-19 08:17:08'),
(3078, 'uGaf6mIY8LqirEHQlLzHbvugL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'UAP Act. Informal body of individuals ‘concerned’ with the terrorist act, though not actually involved in terrorist act, is also covered under the definition of ‘terrorist gang’. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Zabiulla Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 1527 of 2022 decided on 15 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.S. Mudagal and Justice Ramachandra D. Huddar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The brief facts of the case are as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>On 10.01.2020, Shri Niranjan Kumar C, Inspector, CCB, Economic Offences Wing, Bengaluru City submitted a written complaint at Suddaguntepalya Police Station, Bengaluru to the effect that, Mehaboob Pasha (A-1), resident of Gurappanapalya, Bengaluru, Karnataka in association with Khaja Moideen (A-2), who was accused in several cases registered in Tamil Nadu related to terrorism, murder etc. formed a terror group with young Muslims in South India. They selected their base at Bengaluru. They conducted several criminal conspiracy meetings at the house of accused Mehboob Pasha (A-1) and Zabiulla (A- 16) and at the Al-Hind Office in Bengaluru and other places in Karnataka and Tamil Nadu since April, 2019. They propagated the ideology of the proscribed terrorist organization ISIS. They conspired to collect Arms and Explosives for murdering Hindu leaders and police officers thereby creating communal riots. They recruited vulnerable Muslim youths with intention to carry out terrorist attacks in South India especially in Karnataka and Tamil Nadu. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>Based on the said written complaint, Crime No.10/2020 dated 10.01.2020 under sections 153A, 121A, 120B, 122, 123, 124A and 125 of Indian Penal Code, 1860 and section 13, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 (‘the UAP Act’ for short) was registered at Suddaguntepalya Police Station, Bengaluru, Karnataka against Mehaboob Pasha (A-1) and 16 others.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>On careful consideration of the submission of both side and the material on record, the question that arises for consideration is;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">“Whether the impugned order of rejection of bail application of the appellant suffers any illegality or perversity ?”</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>The allegations against the appellant in the charge sheet is that since 2015 he is associated with Al Hind group founded by accused No.1 which is propagating the ideologies and aiding the activities of ISIS a proscribed terrorist organization. It is further alleged that he conspired with them, raised funds and transferred the same to accused No.1 for such illegal activities, attended jihadi and martial arts classes for handling arms. Thereby committed the offences under Sections 17, 18, 18A 20 and 39 of UAP Act read with section 120B IPC. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">16.<span style=\"white-space: pre;\">	</span>The sum and substance of the arguments of the appellant’s counsel is that to invoke the provisions of the UAP Act more particularly section 43D(5) of the Act a person should have committed the Terrorist act contemplated under Section 15 of the UAP Act or he should have been the member of Terrorist organization. It is contended that neither Al Hind with which the appellant is associated is a terrorist organization nor he has committed a terrorist act as contemplated under Section 15 of the UAP Act.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space: pre;\">	</span>Therefore the Court has to examine whether to invoke Sections 17, 18 and 18A of the UAP Act the accused shall be necessarily a member of terrorist organization.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>None of the above provisions say that the person committing the aforesaid offences must be the member of a terrorist organization or a gang.   As per the aforesaid provisions, it is sufficient if a person raises or provides funds, participates in conspiracy, organizes the terrorist camps to aid the terrorist acts directly or indirectly. Any act preparatory to the commission of terrorist act is also punishable.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>It is no doubt true that as per Section 2(m) terrorist organization is necessarily an organization enlisted in the schedule and Al Hind was not so enlisted. However, terrorist gang defined in Section 2(l) does not contemplate such enlistment. Section 2(l) reads as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><i> “2(l) “terrorist gang” means any association, other than terrorist organization, whether systematic or otherwise, which is concerned with or involved in terrorist act.”</i><br></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>22.<span style=\"white-space: pre;\">	</span>The Hon’ble Supreme Court in para 4 of the judgment in Radha Kishan Bhatia vs. The Union of India and others12 interpreting the word ‘concerned’ in Section 167(8) of the Sea Customs Act, 1978 held as follows:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>“ 4. …….. It is immaterial what meaning be attributed to the word \'concerned\'. It can have the meaning \'interest\' as urged for the respondent. It may have the meanings \'involved\' or \'engaged\' or \'mixed up\'. The requirements of the expression \'concerned in any such offence\' in the penalty part of S.167(8) are that the person to be penalised must be interested or involved or engaged or mixed up in the commission of the offence referred to in the first part of S.167 (8). The interest or the involvement or the engagement or the mixing up of the appellant in the commission of the offence must be at a stage prior to the completion of the offence of illegal importation of gold into the country”</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space:pre\">	</span>The above discussion goes to show that any member of the terrorist gang or any individual who is concerned with a terrorist act and done anything in aid of such act, even if he is not the actual perpetrator of the terrorist act defined under Section 15 of the UAP Act is covered under Sections 17, 18, 18A and 20 of the UAP Act. Such interpretation defeats the object and purpose of those provisions and ultimately the UAP Act. Law should be applied adopting purposive interpretation. Therefore there is no merit in the contention that to invoke Section 43D(5) of the UAP Act the accused being a member of a terrorist organization or involving in the violent acts of causing death or injury to any person or persons or destruction of any property by using the explosives, fire arms or lethal weapons etc is a pre- condition. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>24.<span style=\"white-space: pre;\">	</span>Admittedly the judgment of the coordinate bench of this Court in Saleem Khan’s case (accused No.11) referred to supra which is relied on by the learned counsel for the appellant has not attained finality, as the challenge to the said order is pending before the Hon’ble Supreme Court. More over accused No.11 who was the appellant therein is not facing the allegations of raising funds for terrorist activity.   In this case the charge sheet records contain the bank statements whereunder he had transferred the funds to accused No.1 who in turn was acting to the tune of an ISIS handler. Therefore, on that count also that judgment cannot be applied to the facts of the present case and parity does not apply. Further another coordinate bench of this Court in a later judgment in Irfan Pasha and another vs. NIA13 in similar circumstances interpreting the word ‘Whoever’ appearing in Section 15 of the UAP Act rejected the contention that to attract the said section such accused should be a member of a terrorist organization. We are persuaded to accept the view taken in the said later judgment. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>25.<span style=\"white-space: pre;\">	</span>So far as the question whether the accusations made against the appellant are prima facie true to apply Section 43D(5), the trial Court on analyzing the charge sheet material had already once ruled against the appellant. He did not challenge that finding/order. Thereby the same has attained finality. Therefore, it is not open to him again to reagitate the same point contending that acquiring tent materials etc itself does not amount to terrorist act. Even otherwise, the charge sheet contains the material to hold that there are reasonable grounds for believing that the accusations against the appellant are prima facie true. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>26.<span style=\"white-space: pre;\">	</span>Though learned counsel for the appellant relied on host of judgments to substantiate his grounds, in the light of the discussions made above, suffice it say that the said judgments cannot be justifiably applied to the facts of the present case. The appeal deserves no merit. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The appeal is dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd820245329dd191c70339ce24195a4fd.jpeg', '82c3b768de725c921552b0cb8b585a6b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-20', 1, '', '', '2023-06-19 12:29:30', '2023-06-20 12:25:25');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3079, 'ykm7GtpdpQw4NgineEKig8jQX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'To constitute the offence of abetment to commit suicide, the instigation should be of the kind that it drives a person to commit suicide. Instigation should be proximate to the occurrence of death. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>V.V. Singara Velu and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 3095 of 2022 decided on 16 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Petitioners/accused 1 and 2 are before this Court calling in question proceedings in C.C.No.50169 of 2022 pending before the XI Additional Chief Metropolitan Magistrate, Bengaluru arising out of Crime No.444 of 2021 registered for offences punishable under Section 306 r/w 34 of the IPC. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Brief facts, as projected by the prosecution, are as follows:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">Accused No.1/petitioner No.1 is the brother of the complainant. Accused No.2 is the wife of the brother of the complainant. In connection with father’s property, accused No.1 has filed a suit for partition in O.S.No.25938 of 2018 which is pending adjudication. Petitioner No.1 along with his wife file complaints relating to his father’s property against the complainant, his wife one Smt. Revathi and their son G. Vikram. In this regard on the night of 23-11-2021 the son of the complainant, G.Vikram aged about 33 years committed suicide in the second floor room of the residence by hanging himself leaving a death note alleging that in the month of October, 2021 petitioners 1 and 2 had cornered him near the Bruhat Bengaluru Mahanagara Palike Office in Bangalore and threatened him that they will destroy his parents life and the reason for him taking the extreme step is this incident. After the death of the son of the complainant, a complaint comes to be registered alleging that the petitioners are the ones who are responsible for the death of the deceased. The complaint becomes a crime in Crime No.444 of 2021 for offences punishable under Section 306 r/w 34 of the IPC.   The petitioners are the accused in the said crime. The Police after investigation file a charge sheet implicating the petitioners as accused and filing of the charge sheet leads the petitioners to this Court in the subject petition.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>The afore-narrated facts though not in dispute would need a little elaboration. The protagonists to the lis are the 1st petitioner/accused No.1 and the complainant/2nd respondent who are brothers. The 2nd petitioner is the wife of accused No.1. Therefore, she is the sister-in-law of the complainant. The parties to the lis have a lis among themselves. The lis concern the property dispute or partition being sought of the property in O.S.No.25938 of 2018. The plaintiff is the 1st accused and defendants are the complainant, his wife and son. The said proceedings are pending adjudication. Therefore, the members of the family are before the civil Court on a property dispute.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>The petitioners register a private complaint against all the three viz., the complainant, his wife and son in P.C.R.No.54194 of 2021 alleging that the petitioners who were staying abroad came back to India only to get to know that the father of the 1st petitioner had died and his death was not even informed to the petitioners. On the death of the father, several documents with regard to the properties had changed hands all without the knowledge of the 1st petitioner. Therefore, the 1st petitioner invokes Section 200 of the CrPC and seeks to register a crime for offence punishable under Sections. 299, 300, 302 r/w 34 of the IPC. The learned Magistrate refers the matter for investigation under Section 156(3) of the Cr.P.C., which becomes a crime in Crime No.427 of 2021 having registered it on 13-11-2021. Therefore, the 1st petitioner has instituted a civil suit and a crime in Crime No.427 of 2021. It appears that the Police after investigation filed a ‘B’ report and the matter is now at the stage of answering a protest petition. The aforesaid two cases are not the subject matter of the present lis.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.... The issue now is whether sufficient ingredients for an offence under Section 306 of the IPC are available on record for the petitioners to face the trial. The moment crime is registered, the petitioners were before this Court in Criminal Petition No.9951 of 2021 challenging the FIR. During the pendency of the petition, charge sheet comes to be filed by the Police. It is then, the petitioners seek liberty to challenge the same by withdrawing the petition. It is, therefore, the present petition is preferred challenging the charge sheet. Abetment is the soul of Section 306. If one abets or drives a person to the extent of commission of suicide, the offence would become punishable for abetment to suicide.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>The Apex Court has in plethora of judgments, right from MAHENDRA SINGH AND ANOTHER v. STATE OF MADHYA PRADESH has held as follows:<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>Learned Counsel for the appellant rightly submitted that but for the statement of the deceased there is no other pointed evidence from which it could be inferred that there was any abetment so as to bring the acts of the appellants within Section 306 I.P.C. under which the appellants have been punished. The dying declaration, per se, could not involve the appellants in offence punishable under Section 306 I.P.C., because it provides for abetment of suicide. Whoever abets the commission of suicide, and if any person commits suicide due to that reason, he shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Abetment has been defined in Section 107 I.P.C. to mean that a person abets the doing of a thing who firstly instigates any person to do a thing, or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing, or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing. Neither of the ingredients of abetment are attracted on the statement of the deceased. The conviction of the appellants under Section 306 I.P.C. merely on the allegation of harassment to the deceased is not sustainable. The appellants deserve to be acquitted of the charge.”</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In RAMESH KUMAR v. STATE OF CHHATTISGARH3 the Apex Court has held as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“9. So far as the offence under Section 306 of IPC is concerned, in our opinion, the Trial Court and the High Court have committed gross error of law in holding the accused-appellant guilty and therefore conviction under Section 306 IPC deserves to be quashed and set aside.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>10. Section 306 IPC provides that if any person commits suicide whoever abets the commission of such suicide, shall be liable to be punished.<br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i>20. Instigation is to goad, urge forward, provoke, incite or encourage to do `an act\'. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.”</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>In SANJU ALIAS SANJAY SINGH SENGAR v. STATE OF M.P.4 the Apex holds as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>1<i>4. A plain reading of the suicide note would clearly show that the deceased was in great stress and depressed. One plausible reason could be that the deceased was without any work or avocation and at the same time indulged in drinking as revealed from the statement of the wife -- Smt. Neelam Sengar. He was a frustrated man. Reading of the suicide note will clearly suggest that such a note is not a handy work of a man with sound mind and sense. Smt. Neelam Sengar, wife of the deceased, made a statement under Section 161 Cr.P.C. before the Investigation Officer. She stated that the deceased always indulged in drinking wine and was not doing any work. She also stated that on 26th July, 1998 her husband came to them in an inebriated condition and was abusing her and other members of the family. The prosecution story, if believed, shows that the quarrel between the deceased and the appellant had taken place on 25th July, 1998 and if the deceased came back to the house again on 26th July, 1998, it cannot be said that the suicide by the deceased was the direct result of the quarrel that had taken pace on 25th July, 1998. Viewed from the aforesaid circumstances independently, we are clearly of the view that the ingredients of \'abetment\' are totally absent in the instant case for an offence under Section 306 I.P.C. It is in the statement of the wife that the deceased always remained in a drunken condition. It is a common knowledge that excessive drinking leads one to debauchery. It clearly appeared, therefore, that the deceased was a victim of his own conduct unconnected with the quarrel that had ensued on 25th July, 1998 where the appellant is stated to have used abusive language. Taking the totality of materials on record and facts and circumstances of the case into consideration, it will lead to irresistible conclusion that it is the deceased and he alone, and none else, is responsible for his death.”</i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>The Apex Court in the aforesaid judgments has clearly held that abetment involves a mental process of instigating a person or intentionally aiding a person in doing a thing. It should be a positive act on the part of the accused to instigate or aid commission of suicide failing which such cases of conviction cannot be sustained as there should be clear mens rea on the part of the accused to drive the deceased for commission of such act. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>13.<span style=\"white-space:pre\">	</span>The Apex Court in MAHENDRA SINGH (supra) was considering a case where the wife of the accused had committed suicide. The allegation was that the husband was having illicit relationship with the sister-in-law and, therefore, the wife had committed suicide by burning. The Apex Court acquits the accused. In the case of RAMESH KUMAR (supra), the Apex Court observes that investigation was to goad, urge forward, provoke incite or encourage to do an act. If these ingredients are not present such actions would lead to acquittal. In the case of SANJU (supra) the allegation was that the accused had used abusive language and reportedly told the deceased to go and die which by itself would not mean instigation to go and die. Therefore, the Apex Court in all the aforesaid cases considered ingredients of abetment.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>The Apex Court, in later cases, while interpreting Section 306 of the IPC holds that there should be a positive act, proximate to the time or date of occurrence of the incident and that positive act should be either direct or indirect. The Apex Court in the case of AMALENDU PAL v. STATE OF WEST BENGAL has held as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>12.. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.<br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i>14.<span style=\"white-space:pre\">	</span>The expression “abetment” has been defined under Section 107 IPC which we have already extracted above. A person is said to abet the commission of suicide when a person instigates any person to do that thing as stated in clause Firstly or to do anything as stated in clauses Secondly or Thirdly of Section 107 IPC. Section 109 IPC provides that if the act abetted is committed pursuant to and in consequence of abetment then the offender is to be punished with the punishment provided for the original offence. Learned counsel for the respondent State, however, clearly stated before us that it would be a case where clause Thirdly of Section 107 IPC only would be attracted. According to him, a case of abetment of suicide is made out as provided for under Section 107 IPC.”</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>The Apex Court in the case of KANCHAN SHARMA v. STATE OF UTTAR PRADESH AND ANOTHER10 has held as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i>“9. “Abetment” involves mental process of instigating a person or intentionally aiding a person in doing of a thing. Without positive act on the part of the accused to instigate or aid in committing suicide, no one can be convicted for offence under Section 306IPC. To proceed against any person for the offence under Section 306IPC it requires an active act or direct act which led the deceased to commit suicide, seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.”</i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>Again the Apex Court in MARIANO ANTO BRUNO AND ANOTHER v. INSPECTOR OF POLICE13 has held as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i>“42. To convict a person under Section 306 IPC, there has to be clear mens rea to commit offence. It also requires an active act or direct act which leads deceased to commit suicide finding no other option and the act must be such reflecting intention of the accused to push deceased into such a position that he commits suicide. The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and Appellant No. 1 abetted the commission of suicide of the deceased. In the present case, both the elements are absent.</i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In a later judgment the Apex Court in the case of V.P. SINGH v. STATE OF PUNJAB AND OTHERS14 has held as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“11. On perusal of the charge sheet, it was found that there is no other independent witness whose statement was recorded or who is cited as a witness to the actual incident. In view of the letter exchanged including his apology letter, it is quite obvious that the complaint has embellishments and endeavour to make out a case of abetment of suicide. If one may say, on even reading of the charge sheet, on the basis of the complaint as it is, there is still no case made out for abetment of suicide.</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>15.<span style=\"white-space:pre\">	</span>All aforesaid judgments of the Apex Court were acquitting the accused who were convicted of offences punishable under Section 306 of the IPC. In some cases the Apex Court directs High Courts to entertain such petitions in exercise of its jurisdiction under Section 482 of the Cr.P.C., and following the said judgments this Court in plethora of cases has quashed proceedings in exercise of its jurisdiction under Section 482 of the Cr.P.C. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>16.<span style=\"white-space:pre\">	</span>On a coalesce of the judgments rendered by the Apex Court as afore-quoted, right from 1995 to 2023, what would unmistakably emerge is, that there must be mens rea and actus reus for an offence under Section 306 of IPC, as there must be a positive act to instigate in aiding suicide. Proximate to the death must be a dynamic act, be it direct or indirect. It should be proximate to the occurrence of death and it should be instigation of the kind that it drives a person to commit suicide. Thus, if these ingredients are present in a given case, exercise of jurisdiction under Section 482 of the Cr.P.C., would not be available. Likewise, if they do not find place in a given case, this Court would step in and obliterate the proceedings. If on the afore-quoted law, that is laid down, the facts obtaining in the case at hand are re-assessed what would unmistakably emerge is, that the death of the son of the complainant has no proximity to any of the alleged instigations of the petitioners.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space: pre;\">	</span>The complaint itself narrates that the incident happened in the month of October, 2021 with no date specified. Therefore, it could be taken that it has happened from 1st October, 2021 to 31st October, 2021. Litigations in the family galore – civil suit is filed by the petitioners against the complainant and his family and crime is registered against the complainant by the petitioners. Even that was on 13-11-2021. They are legal proceedings taken up by the petitioners against the complainant and his family members. If the suicide note/death note is taken into consideration, it only narrates that in the month of October 2021 the petitioners had hurled abuses and have registered several proceedings against the complainant and his family members and therefore, the son commits suicide on 23-11-2021. There cannot be any proximity or any instigation which would drive the son of the complainant to commit suicide. As observed by the Apex Court in the aforesaid cases, if the ingredients of Section 107 of the IPC are completely absent, no offence under Section 306 can even be proved. It is, therefore, in a given case this Court has to step in, in exercise of its jurisdiction under Section 482 of the Cr.P.C., and obliterate those proceedings which would, on the face of it, be abuse of the process of law and result in miscarriage of justice. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">18.<span style=\"white-space: pre;\">	</span>Insofar as the judgment relied on by the learned High Court Government Pleader in the case of K.C. MAHENDRA (supra) is concerned, the facts obtaining in the case therein were entirely different from what are obtaining in the case at hand. Therefore, the said judgment becomes distinguishable without much ado. The facts obtaining in the case at hand are circumstances enough for this Court to interfere and terminate the proceedings, failing which it would result in miscarriage of justice.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space: pre;\">	</span>Criminal Petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7df2458d63939d9e0b05761c3347668f.jpeg', 'aa17cb3e7ec2de3ec6fd6e7b96ff41f2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-20', 1, '', '', '2023-06-19 13:01:14', '2023-06-20 06:54:47'),
(3080, '6w6sKb3jogeFNktHRx1evjsHU', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When the rent and the leased area are within the prescribed limit under the Rent Act, the Court must reject the plaint for ejection filed under the Transfer of Property Act. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ganesh N Vs N. Anathan Pillai and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 235 of 2023 decided on 16 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The<span style=\"white-space: pre;\">	</span>factual matrix of the case of the petitioner/defendant No.3 in S.C.No.15125/2022<span style=\"white-space: pre;\">	</span>is that the petitioner herein is a tenant along with respondent Nos.2 to 5 herein. It is contended that the husband of defendant No.1 and the father of defendant Nos.2 to 5 Sri late A. Nataraj was a tenant under the plaintiff on oral agreement in respect of ground floor shop premises measuring 7 x 11 ft. which is morefully described in the schedule. The said Nataraj was paying the rent of Rs.3,000/- per month to the plaintiff and he was running a business under the name and style M/s. Shakthi Polishing Machines. He expired in the year 2020 and thereafter the defendants continued to pay the rent of Rs.3,000/- per month and thereafter the defendants stopped the payment. The defendants are jointly running a business in the schedule premises. The petition schedule premises is required by the plaintiff for his bonafide use and occupation and requested the defendants to handover the vacant possession many times, but they did not come forward to vacate the premises and hence issued a legal notice to quit, vacate and handover the possession and they have given an untenable reply and hence filed a suit seeking an order to direct the defendants to vacate and deliver the vacant possession and also direct the defendants to pay the arrears of rent of Rs.60,000/- from November 2020 to June 2022 and grant such other relief. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>The defendant No.3 filed the written statement denying the averments made in the plaint. However, he contend that the defendants’ father took the premises on free of rent on receipt of lease amount of Rs.5 lakhs in the year 1993 and the father was required only to paid the electricity charges as and when due. The plaintiff was to refund the lease amount to Sri Nataraj at the time of vacating the premises and denied the contention that they are in occupation of the premises on monthly rent basis. The defendants have also filed an application under Order 7 Rule 11 of CPC read with Section 151 of CPC praying this Court to dismiss the suit as not maintainable in view of Sections 2(3)(e)(i) and 2(3)(g) of the Karnataka Rent Act, 1999 (‘the Act’ for short). In support of the application, an affidavit is sworn to wherein it is contended that the rate of rent is Rs.3,000/- per month and the plinth area is 77 sq.ft. and hence the Court has no jurisdiction to entertain the suit since the same is coming under the jurisdiction of the Act and prayed this Court to dismiss the same.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>Having heard the learned counsel for the petitioner and the learned counsel for respondent No.1 and also the reasons assigned for the dismissal of application, the point that arise for the consideration of this Court is:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> “Whether the Trial Court has committed an error in dismissing the application filed under Order 7 Rule 11 of CPC and the order impugned suffers from infirmity”?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>This Court would like to refer to some of the judgments of this Court in a similar set of facts. This Court in HRRP No.7/2016 along with HRRP No.41/2016 decided on 02.03.2021 in the similar grounds urged before the Court with regard to Sections 2(3)(e) and 2(3)(g) of the Act having discussed in detail comes to the conclusion that from the conjoint reading of the above provisions, it is crystal clear that clause (e) of sub-section (3) of Section 2 of the Act could be made applicable only when the standard rent or deemed rent does not exceed Rs.3,500/- per month. In such a case, it is immaterial whether the demised premises is residential or non- residential as on the date of commencement of the Act and apparently for this reason, the legislature has used the expression “any premises” in clause (e). As per this clause, the quantum of “deemed rent” or “standard rent” that would determine the applicability or non-applicability of the provisions of the Act and not the nature of the premises as erroneously held by the Trial Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">13.<span style=\"white-space: pre;\">	</span>This Court also taken note of Section 2(3)(g) of the Act and having considered the material comes to the conclusion that the premises in question is non-residential premises used for commercial purpose having plinth area of less than 14 sq.mts. Therefore, only HRC is maintainable for eviction of the respondents. In the case on hand also, admittedly the plaintiff has pleaded that the rate of rent is Rs.3,000/- per month and the proviso of Section 2(3)(e) of the Act is very clear that to any premises, deemed rent on the date of commencement of the Act or the standard rent of which exceeds Rs.3,500/- per month in any area referred to in Part A of the First Schedule of the Act will not apply. In the case on hand, rate of rent is Rs.3,000/- per month.   This Court would like to refer to First Schedule of the Act. Areas within the limits of cities constituted under the Karnataka Municipal Corporation Act, 1976 and within a radius of 3 kms. from the limit of the said cities which comes under Part A. In the case on hand, the part and parcel of the immovable property being ground floor shop premises measuring 7 x 11 ft. facing towards II Main Road, Palace Guttahalli, situated in a portion of the property bearing No.80, II Main Road, Palace Guttahalli, Bangalore and the same comes within Part A of First Schedule of the Act and the rent is below the standard rent of Rs.3,500/- per month and hence Section 2(3)(e) of the Act is applicable to the facts of the case on hand.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">14.<span style=\"white-space: pre;\">	</span>No doubt, if the premises is measuring more than 14 sq.mts., the Rent Act is not applicable. But in the case on hand, admittedly it measures 77 sq.ft. and if it exceeds, the same would be out of the jurisdiction of the Act. The Act is made applicable to a non-residential premises used for commercial purpose having a plinth area of less than 14 sq.mts. In the case on hand also the area is less than 14 sq.mts. and there is no dispute with regard to the said fact. When such being the case, Section 2(3)(g) of the Act is clear that if the premises exceeds 14 sq.mts., the Act is not applicable.   If it is less than 14 sq.mts., even if it is a non-residential premises used for commercial purpose, the Act is made applicable to a non- residential premises used for commercial purpose having the plinth area of less than 14 sq.mts.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>This Court in CRP No.182/2018 decided on 16.01.2019 held that even one of the conditions mentioned in Section 2 of the Act is fulfilled, the provision of the Act are not applicable and considered the judgment of this Court in the case of Smt. Anupama (supra). This Court in its judgment passed in CRP No.452/2013 dated 16.01.2014 held that if the rate of rent is more than Rs.3,500/- per month, it will fall under the Transfer of Property Act. This Court in its order passed in R.S.A.No.1767/2022 dated 06.02.2023 held that if the rate of rent is more than Rs.2,000/- per month in respect of a commercial premises, the Rent Act is not applicable and Section 106 of the Transfer of Property Act is applicable since the premises comes within the purview of Part B of First Schedule of the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">16.<span style=\"white-space: pre;\">	</span>Having considered the principles laid down in the judgments referred supra and also having considered the material and facts, the rate of rent is Rs.3,000/- per month as pleaded by the plaintiff and the premises is undisputedly measuring only 77 sq.ft. and the same is below 14 sq.mts. The very contention of the learned counsel for respondent No.1 that the Small Causes Court is having the jurisdiction and rightly filed the suit relying upon the judgment of this Court cannot be accepted. On the other hand, the learned counsel for the petitioner has made out a case that the Karnataka Rent Act is applicable since the rate of rent is less than Rs.3,500/- per month and standard rent in respect of the premises which is Part A of First schedule of the Act and also premises is measuring less than 14 sq.mts even though the premises is a commercial premises, the Rent Act is applicable and hence cannot invoke the jurisdiction of the issuance of notice under Section 106 of the Transfer of Property Act. The Trial Court committed an error in not considering the very proviso of Sections 2(3)(e) and 2(3)(g) of the Act and the order passed by the Trial Court is against the statute and hence it requires interference of this Court. Hence, I answer the point in the affirmative.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space: pre;\">	</span>The revision petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8b7db95267771c73c8f071661ab10783.JPG', '920e4365af38f5c5f48f8457ed34dcd2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-20', 1, '', '', '2023-06-19 13:40:35', '2023-06-20 08:31:49');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3081, 'XzrZ1I9CPKg9qokGRMdn1Bet9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Proportionality of sentence against delinquent employee is also based on the duty performed. If the delinquent holds responsible post and if he has breached the trust and acted with dishonesty, he must be dealt with iron hands. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gururaj Vs The Management of Syndicate Bank and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 109981 of 2015 decided on 14 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">This writ petition under Articles 226 and 227 of the Constitution of India is filed by the retired employee of the respondent – Bank with prayers to issue a writ of certiorari quashing the order Annexure – H dated 06.04.2015 passed by the 2nd respondent in proceedings bearing No.013 / PD : IRD / DA – 7 and also to issue a writ of mandamus directing the respondents to release the pension of the petitioner with interest at 18%.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Facts leading to filing of this writ petition as revealed from the records narrated briefly are, the petitioner was working as Manager of the respondent – Bank at Ballari for the period between 2007 to 2011. On 03.11.2011, article of charges were issued against the petitioner for having violated the rules and norms of the Bank while processing the loans to the agriculturists. The petitioner had submitted his reply to the said article of charges on 11.11.2011. Thereafter, a corrigendum to the article of charges was served on the petitioner on 21.12.2011. Since the management was not satisfied with the reply given to the article of charges, an enquiry was initiated against the petitioner. After completion of the enquiry, a report was filed by the Enquiry Officer holding that the charges against the petitioner were proved. After service of the said report, the petitioner had submitted his reply to the same. However, the Disciplinary Authority being not satisfied with the reply had passed an order of dismissal against the petitioner on 13.09.2014. In the meantime, on 13.05.2012, the petitioner had retired from service on attaining the age of superannuation. Aggrieved by the order of dismissal dated 13.09.2014, the petitioner had preferred an appeal which was dismissed by the 2nd respondent Appellate Authority on 21.11.2014 vide Annexure – H. Assailing the said order, the petitioner is before this Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>The charge sheet dated 03.11.2011 which was issued to the petitioner vide regulation No.6 of the Syndicate Bank Officer Employees’ (Discipline & Appeal) Regulations, 1976 is produced at Annexure – A and a perusal of the same would go to show that in the preamble of the said document, it has been mentioned that petitioner was placed under suspension with effect from 23.12.2010 pending enquiry into the alleged misconduct committed by him. By mentioning that the suspension order was passed pending enquiry, it cannot be said that the management was biased against the petitioner. Suspension orders are always passed pending enquiry against an employee and therefore, the contention of the petitioner that the enquiry held against him is bad in law as the management was biased against him, as it had already decided to hold an enquiry even before he had submitted his reply to the article of charges is meritless.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>It is not in dispute that the regulations of the respondent – Bank provides that the departmental enquiry initiated against an employee while in service can be continued even after his retirement. On attaining age of superannuation, such employee ceases to be in service, but for the purpose of enquiry will continue as if he was in service until final orders are passed. Rule 20(3)(iii) of the Syndicate Bank (Officers’) Service Regulations, 1979 reads as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“20(3)(iii). The Officer against whom disciplinary proceedings have been initiated will cease to be in service on the date of superannuation but the disciplinary proceedings will continue as if he was in service until the proceedings are concluded and final order is passed in respect thereof. The concerned Officer will not receive any pay and/or allowance after the date of superannuation. He will also not be entitled for the payment of retirement benefits till the proceedings are completed and final order is passed thereon except his own contributions to CPF.”<br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>In the case of Rajendra Shukla, the Hon’ble Supreme Court at paragraph Nos.16, 17 and 18 had held as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>16.<span style=\"white-space:pre\">	</span>Finally, we may also draw attention to an unreported decision of this Court in UCO Bank and Ors. v. Prabhakar Sadashiv Karvade. In this decision, the Court considered the provisions of the Regulations that we are concerned with and held : “The sum and substance of these Regulations is that even though a departmental inquiry instituted against an officer employee before his retirement can continue even after his retirement, none of the substantive penalties specified in Regulation 4 of 1979 Regulations, which include dismissal from service, can be imposed on an officer employee after his retirement on attaining the age of superannuation. Therefore, we have no hesitation to hold that order dated 12.10.2004 passed by the disciplinary authority dismissing the respondent from service, who had superannuated on 31.12.1993 was ex facie illegal and without jurisdiction and the High Court did not commit any error by setting aside the same.” We may also make reference to another decision of this Court in UCO Bank and Anr. v. Rajinder Lal Capoor. This decision also related to the very same Regulations that we are concerned with.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>17.<span style=\"white-space:pre\">	</span>In dealing with these Regulations, it was observed by the Court in paragraph 22 of the Report as follows:-</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i> “22. The respondent, therefore, having been allowed to superannuate, only a proceeding, inter alia, for withholding of his pension under the Pension Regulations could have been initiated against the respondent. Discipline and Appeal Regulations were, thus not attracted. Consequently the charge-sheet, the enquiry report and the orders of punishment passed by the disciplinary authority and the appellate authority must be held to be illegal and without jurisdiction.”</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>18.<span style=\"white-space:pre\">	</span>Under the circumstances, we have no hesitation in dismissing the appeal filed by the Bank also on the ground that the punishment of dismissal could not have been imposed on Shukla after his superannuation.”<br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>The said judgment has been impliedly overruled by the Hon’ble Supreme Court in the case of Chairman cum Managing Director, Mahanadi Coalfields Limited vs. Rabindranath Choubey reported in (2020) 18 SCC 71, insofar it has observed that punishment of dismissal cannot be passed after superannuation. In the said case, the Hon’ble Supreme Court has observed that if the submission on behalf of the employee that after the employee has attained the age of superannuation and/or he has retired from service, despite Rule 34.2, no order of penalty of dismissal can be passed is accepted, in that case, it will be frustrating permitting the authority to continue and conclude the disciplinary proceedings after retirement. If the order of dismissal cannot be passed after the employee has retired and/or has attained the age of superannuation, in the disciplinary proceedings which were instituted while the employee was in service, in that case, there shall not be any fruitful purpose to continue and conclude the disciplinary proceedings in the same manner as if the employee had continued in service.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“45. In view of the various decisions, it is apparent that under Rule 34.2 of the CDA Rules inquiry can be held in the same manner as if the employee had continued in service and the appropriate major and minor punishment commensurate to guilt can be imposed including dismissal as provided in Rule 27 of the CDA Rules and apart from that in case pecuniary loss had been caused that can be recovered. Gratuity can be forfeited wholly or partially.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>47.<span style=\"white-space:pre\">	</span>Thus considering the provisions of Rules 34.2 and 34.3 of the CDA Rules, the inquiry can be continued given the deeming fiction in the same manner as if the employee had continued in service and appropriate punishment, including that of dismissal can be imposed apart from the forfeiture of the gratuity wholly or partially including the recovery of the pecuniary loss as the case may be.”</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>The scope of judicial review in exercise of Article 226 of the Constitution of India as against findings recorded in a departmental proceedings and the punishment imposed on the basis of such findings is very limited and narrow. Unless such findings are patently illegal, perverse or based on no evidence, in normal circumstances, the Courts / Tribunals cannot interfere with the same. The findings recorded by the Disciplinary Authority in the present case are supported by evidence. The petitioner has not pointed out any discrepancy in the evidence of the department. It is not the case of the petitioner that there is absolutely no evidence against him. Petitioner was holding a responsible post of Manager of a nationalized bank. Serious charges of misconduct have been made against the petitioner and as against proven misconduct, the disciplinary authority had thought it fit to pass an order of dismissal against the petitioner. Unless the punishment is shockingly / strikingly disproportionate or harsh, in normal circumstances, this Court cannot interfere with the same and that too when the said order of punishment has been confirmed by the Appellate Authority. In a properly held departmental enquiry, when the statutory requirements and principles of natural justice has been complied with, the scope for interference under Article 226 f the Constitution of India is bare minimum. The courts cannot act as appellate authority and re- appreciate the evidence and give a finding of its own.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>The Hon’ble Supreme Court in the case of Union of India and others vs. Subrata Nath reported in 2022 SCC Online SC 1617 at para 21 has observed as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“21. To sum up the legal position, being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power to examine the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily reappreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P. Gunasekaran (supra). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re-consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefor.” </i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>No such exceptional circumstances are found in the present case. The writ petition lacks merit and accordingly the same is dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2a945af2ed953823bf1e9a84ac829cc0.jpeg', '25ac0035bb0a7f8f636dcfbc85d9dcfc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-20', 1, '', '', '2023-06-19 14:01:06', '2023-06-20 10:53:31'),
(3082, '7FEidRx8KemclTvRUkBvNeBbO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Private Educational Institutions (Discipline and Control) Rules 1978 continue to be in force even after coming into force of the Karnataka Education Act, 1983 and govern the disciplinary proceedings initiated. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Hebbalakppa Havalappa Hiremani Vs Narasimha Swamy Vidya Samsthe.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 84740 of 2010 decided on 25 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The petitioner was working as a Principal of Smt.Giraja Mahila Pre-University College, Sindhanur, run by the respondent-Society from the year 1994. Disciplinary enquiry was initiated against the petitioner on the basis of ten charges relating to misappropriation of monies, highhandedness etc. under Rule 17 of the Karnataka Private Educational Institutions (Discipline and Control) Rules 1978. The Enquiry Officer was appointed who submitted a report confirming the delinquency against the petitioner to having been proven on 10.10.2003. A 2nd show cause notice came to be issued on 26.07.2004 which was replied to by the petitioner on 12.08.2004, the disciplinary authority not acceptable to the reply dismissed the petitioner from service on 30.08.2004 which came to be challenged by the petitioner by filing an appeal under section 94 of the Karnataka Education Act before the Education Appellate Tribunal at Raichur in EAT No.2/2004 which came to be dismissed on 25.8.2009. It is aggrieved by the same that the petitioner is before this Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>The points that would arise for determination are:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space:pre\">	</span>Whether the Rules of 1978 would stand repealed on coming into force of the Karnataka Education Act, 1983?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 2.<span style=\"white-space:pre\">	</span>Whether the Rules of 1978 would stand superseded by the Karnataka Educational Institutions (Collegiate Education) Rules 2003? 3.<span style=\"white-space:pre\">	</span>Whether the disciplinary proceedings initiated against the petitioner on 4.7.2003 would be continued and completed under the Rules of 1978 or would have to be continued under the Rules of 2003?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 4.<span style=\"white-space:pre\">	</span>Whether the order passed by the EAT in EAT No.2/2004 requires any interference at the hands of this Court on account of the legal infirmities? 5.<span style=\"white-space:pre\">	</span>What order?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>Answer to point No.1: Whether the Rules of 1978 would stand repealed on coming  into force of the Karnataka Education Act, 1983?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.2.<span style=\"white-space:pre\">	</span>The Karnataka Education Act, 1983   came into force on 1.6.1995.   Thus, on the Act of 1983 coming into force, the Act of 1975 stood repealed. However, sub-section 3 of Section 146 makes it clear that notwithstanding anything contained in the Act of 1983, all Rules, orders, notifications, Grant-in-aid Codes, appointments, schemes, bye-laws, regulations, official memorandum, circular or any other order made or issued before the commencement of the Act of 1983 would continue to be in force and effective as if it was made under the corresponding provisions of Act of 1983, unless and until superseded directing done or any action taken etc., under the Act of 1983.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 8.3.<span style=\"white-space:pre\">	</span>Thus, it is clear that until a positive Act is done under the Act of 1983, the earlier Rules would continue to be in force which would include the Rules of 1978. Thus, I answer point No.1 by holding that by virtue of sub-section 1 of Section 146, the Rules of 1978 did not stand repealed and continued to exist and operate even thereafter until a positive Act was done by the State.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>Answer to point No.2: Whether the Rules of 1978 would stand superseded by the Karnataka Educational Institutions (Collegiate Education) Rules 2003?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The Karnataka Educational Institutions (Collegiate Education) Rules 2003 came into force on 7.8.2003 on being published in the Karnataka Gazette. Chapter VII of these Rules relates to terms and conditions of service of employees in Private Aided Educational Institutions, discipline etc., Thus these rules of the year 2003 can be said to be an Act or an order made under the Act of 1983 which will having the effect of supersession of the rules of 1978 made under the earlier Act which continued to be in force by the deeming fiction created under the sub-section 3 of section 146.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 9.2.<span style=\"white-space:pre\">	</span>The deeming fixation therefore came to an end with the coming into force of Rules of 2003 on 7.8.2003 and from that date the Rules of 1978 became inapplicable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.3.<span style=\"white-space:pre\">	</span>Thus, I answer point No.2 by holding that on the coming into force of Rules of 2003, Rules of 1978 stood superseded.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>Answer to point No.3: Whether the disciplinary proceedings initiated against the petitioner on 4.7.2003 would be continued and completed under the Rules of 1978 or would have to be continued under the Rules of 2003?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.1.<span style=\"white-space:pre\">	</span>In view of the Rules of 1978 being in force until the Rules of 2003 coming into force, action could be taken under the Rules of 1978 until 7.8.2003. It is in pursuance thereof that the charge sheet was issued on 4.7.2003 under the Rules of 1978. In terms of sub-section 2 of section 146, the repeal of the Rules of 1978 or super session of Rules of 1978 having occurred on 7.8.2003, any act which had been commenced under the Rules of 1978 would have to be continued and completed under the corresponding provisions of the Act of 1983 which would mean and include the Rules of 2003. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.2.<span style=\"white-space:pre\">	</span>Thus, even though the charge sheet had been issued on 4.7.2003 when the Rules of 1978 was in force, on coming into force of Rules of 2003 on 7.8.2003 any action already initiated had to be continued under the Rules of 2003. Hence, I answer point No.3 by holding that once Rules of 2003 come into force any action initiated under the Rules of 1978 would have to be continued and completed under the Rules of 2003 and could not be continued under the Rules of 1978. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>Answer to point No.4:Whether the order passed by the EAT in EAT No.2/2004 requires any interference at the hands of this Court on account of the legal infirmities?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.1.<span style=\"white-space:pre\">	</span>The Education Appellate Tribunal having been put on notice by the petitioner about effect of Rules of 2003 the EAT ought to have considered these aspects in the proper perspective and ought to have come to a conclusion that the enquiry was to be conducted on 4.7.2003 in terms of Rules of 2003 but has misapplied itself and come to a conclusion that by virtue of sub- section 3 of section 146, any proceedings initiated against under the Rules 1978 would be continued and completed under the Rules of 1978. While doing so the Tribunal has completely lost sight of sub-section 2 of section 146 which mandates that any action initiated prior to the repeal would have to be continued and completed under the corresponding provision of the Act of 1983 which would include the Rules of 2003. Such being the case, the order of dismissal passed by the EAT in EAT No.2/2004 is not sustainable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.2.<span style=\"white-space:pre\">	</span>Considering that there are some confusions in lacune as regards the manner in which proceedings are to be continued, I am of the considered opinion that taking into account the seriousness of the allegations which had been made as also the conduct of the petitioner in not leading evidence and/or not participating in the proceedings before the concerned enquiry officer, the earlier charge sheet which had been issued on 4.7.2003 and the reply issued by the petitioner on 14.7.2003 not being acceptable, a fresh enquiry would have to be conducted in terms of Rules of 2003 and completed under the said provisions.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\">12.<span style=\"white-space:pre\">	</span>Answer to point No.5: </font></span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">What order? </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">12.1.</span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif; white-space: pre;\">	</span><span style=\"font-size: 1rem; font-family: Calibri, sans-serif;\">Writ petition is partly allowed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9903469e36c11e35ddebfb4e79e02c9e.JPG', '3e60c9421bbfe3378dc3185b1968c5af.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-21', 1, '', '', '2023-06-19 14:39:53', '2023-06-21 06:21:35'),
(3089, 'B4Cl9o7KEsMJkU5gCzUBZ62lQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'If the premises used for commercial purpose is more than fourteen square meters, it is excluded from the applicability of the Karnataka Rent Act. This can’t be defeated on the ground that its rent is less than the amount stipulated. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>P Sandeep Trichy Vs Ramesh.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 183 of 2022 decided on 15 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>This revision petition is filed challenging the order dated 05.03.2022 passed in S.C.No.1596/2019 by the Trial Court in allowing the application filed under Order VII Rule 11(d) read with Section 151 of CPC consequently, the suit of the plaintiff is rejected. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>The counsel for the revision petitioner vehemently contend that the Court below has committed an error in coming to the conclusion that the suit is not maintainable and HRC Act ought to have been invoked and the very conclusion arrived by the Trial Court is erroneous. The counsel would vehemently contend that Section 2(3)(e) of the Karnataka Rent Act, 1999 (for short ‘the Rent Act’) is clear that what are the subject matters are excluded under the Rent Act. The counsel for the petitioner brought to notice of this Court to Section 2(3)(e) of the Rent Act and contend that when Section 2(3)(e) is very specific that standard rent is exceeds Rs.3,500/-, the landlord cannot file any petition under the Rent Act. The counsel would vehemently contend that rate of rent is Rs.4,500/- per month. Hence, as per Section 2(3)(e) of the Rent Act, if the rent is payable more than Rs.3,500/-, the Rent Act is not applicable. Hence, the Trial Court has committed an error in allowing the application. Hence, it requires interference.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>Having heard the learned counsel appearing for the respective parties and also in keeping the principles laid down in the judgments referred by the respective counsel, the point that would arise for the consideration of this Court that: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">Whether the Trial Court has committed an error in allowing the application filed under Order VII Rule 11(d) of CPC and whether the said order suffers from legality and infirmity?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record it is not in dispute that the rate of rent is Rs.4,500/- per month in respect of the premises which is the subject matter of the petition and the same is a commercial premises and the nature of the premises is also not in dispute. Now, the question before the Court is that whether the petition ought to have been filed under HRC Act or to invoke Section 106 of T.P. Act. The counsel for the revision petitioner has filed S.C.No.1596/2019 after issuing the notice under Section 106 of the T.P. Act against the respondent herein and filed the petition for ejection. There is no dispute with regard to the rate of rent is concerned.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>Having extracted Section 2(3)(e) of the Rent Act, it is clear that Schedule I, Part A is in respect of the premises which is applicable where the Municipal Corporation Act is applicable hence, the standard rent is fixed as Rs.3,500/-. I have already pointed out that the rate of rent is Rs.4,500/- per month hence, it is excluded the premises which is more than the rent of Rs.3,500/- per month, hence, the Rent Act is not applicable in terms of Section 2(3)(e). The counsel for the respondent also made his effort to convince this Court bringing to the notice of this Court to statement of objects and reasons. No doubt, some of the features of the proposed measurement was also discussed in the statement of objects and reasons. Wherein it is specifically mentioned with regard to the application is now restricted to any residential building the standard rent of which does not exceed Rs.3,500/- per month in the area provided under the Karnataka Municipal Corporation Act and Rs.2,000/- per month in other areas and a commercial building having plinth area of not exceeding fourteen square meters.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>This Court also in detail discussed having taken note of Section 2(3)(e) and 2(3)(g) of the Rent Act and also comes to the conclusion that this can’t be defeated by relying on the exception provided under Clause (e) on the ground that the rent of the premises does not exceed the limit stipulated therein. Similarly, if the area of a premises used for commercial purpose is more than fourteen square meters, it stands excluded from the applicability of the Rent Act in view of Clause (g). This can’t be defeated on the ground that its rent is less than the amount stipulated in Clause (e). To give one more instance, if a premises is excluded from the applicability of the Rent Act under Clause (e), it can’t be defeated by relying on the exception provided in Clause (g) on the ground that the premises is used for commercial purpose and its plinth area does not exceed fourteen square meters. In this judgment in detail discussed the scope of Section 2(3)(e) as well as 2(3)(g) of the Rent Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 11.<span style=\"white-space:pre\">	</span>In the case on hand, no doubt, the premises is less than 14 square meters. But the very Act specifically held that any premises standard rent is more than Rs.3,500/-, it excludes the applicability of the Rent Act. The judgment of this Court in the case of ANUPAMA RAMESH wherein discussed with regard to the Section 2(3)(e) as well as 2(3)(g) of the Rent Act is applicable to the case on hand hence, the very contention of the learned counsel for the respondent that the Trial Court has not committed any error cannot be accepted. The judgments referred by the counsel for respondent are not applicable to the case on hand wherein not discussed the very proviso of Section 2(3)(e) of the Rent Act. Hence, the Trial Court has committed an error in allowing the application filed under Order VII Rule 11(d) of CPC in coming to the conclusion that the same is barred by law. The very approach of the Trial Court is erroneous  and committed an error in interpreting Section 2(3)(e) as well as 2(3)(g) of the Rent Act. Hence, the order is liable to be set aside by answering the point as affirmative.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The revision petition is allowed. </b><br></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c10f72bb54d662777b2b48af0c9944f0.JPG', '5fb42f4806143d799e8dc64aea2cd9de.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-22', 1, '', '', '2023-06-21 12:44:03', '2023-06-22 03:18:37');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3090, 'qosie13nmYln8Tx9PKcErf0xo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When the prosecution fails to prove its case, benefit of the acquittal can be extended by the appellate court even to the accused who has not preferred appeal challenging the order of conviction. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Manjunatha Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.A 1532 of 2018 decided on 13 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Somashekar and Justice Rajesh Rai K.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>By the said judgment, the Trial Court had convicted the appellant in Crl.A.No.1532/2018 / Manjunatha, S/o. Nagaraju who is arraigned as Accused No.3 in S.C.No.5021/2014 for offences punishable under Sections 120B, 302 and 201 of the Indian Penal Code, 1860 (hereinafter referred to as ‘the IPC’, for brevity); he was sentenced to undergo imprisonment for life and to pay a fine of Rs.20,000/- for the offence punishable under Section 302 IPC, along with default clause; further, he was sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.15,000/- for the offence punishable under Section 201 IPC along with default clause; and he was further sentenced to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs.10,000/- for the offence punishable under Section 120B of the IPC along with default clause. All the sentences were ordered to run concurrently. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>The Trial Court had convicted the appellant in Crl.A.No.1550/2017 / Mohan Kumar, S/o. late Venkatappa who is arraigned as Accused No.1 in S.C.No.5021/2014 for offences punishable under Sections 114, 120B, 302 and 201 of the IPC; he was sentenced to undergo imprisonment for life and to pay a fine of Rs.20,000/- for the offence punishable under Section 302 IPC, along with default clause; further, he was sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.15,000/- for the offence punishable under Section 201 IPC along with default clause; further he was sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.10,000/- for the offence punishable under Section 114 IPC along with default clause; and he was further sentenced to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs.10,000/- for the offence punishable under Section 120B of the IPC along with default clause. All the sentences were ordered to run concurrently.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>Factual matrix of these appeals are as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>It transpires from the case of the prosecution that Smt. Rajamma being the mother of the deceased Ravishankar, had lodged a missing complaint in terms of a report as on 04.09.2013 about her son, an auto-rickshaw driver who was not to be heard of since 02.09.2013 after he had left home by driving his autorickshaw. After a lapse of 7 days, a written complaint was lodged by her with the respondent / Bannerghatta P.S. The first accused is Mohan Kumar, who is none other than Rajamma’s son and step-brother of deceased Ravishankar, who being a suspect, he was apprehended by the Investigating Agency. On interrogation, he had made a disclosure about the participation of Accused Nos.2 and 3 along with himself in killing the deceased. Hence, accused Nos.2 and 3 were arrested and were remanded for three days by the police for the purpose of investigation.   Accused Nos.1 and 3 were investigated by the Investigating Agency and on their disclosure relating to the incident about Ravishankar, his dead body was recovered after digging the mud near a Eucalyptus plantation. The said recovery was held in the presence of the Taluk Executive Magistrate / Tahsildar of Anekal. Based upon the direction in terms of the order issued by the Sub-Divisional Magistrate in the rank of Assistant Commissioner, the Executive Magistrate had exhumed the dead body of Ravishankar and thereafter inquest was held over the dead body in the presence of panch witnesses. After exhuming the dead body of Ravishankar, the mother of the deceased namely Rajamma and the wife of the deceased namely Sudha, had identified his dead body. The dead body of Ravishankar was thereafter sent to the mortuary for conducting autopsy over the dead body. After investigation, the Investigating Officer laid the charge-sheet against the accused persons before the Committal Court relating to the offences punishable under Sections 302, 201, 120-B and 114 of the IPC. The Committal Court issued summons to the first accused, who appeared before Court and obtained regular bail. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">8.<span style=\"white-space: pre;\">	</span>On securing the accused in order to face trial relating to the aforesaid offences, heard the learned Public Prosecutor and so also the learned Defence counsel for the accused and on a perusal of the material secured by the I.O. and on finding prima facie material, charges were framed against the accused for the aforesaid offences. However, the accused had declined the charges levelled against him and pleaded not guilty and claimed to be tried. Subsequently, the case was let in for trial and accordingly, the prosecution subjected to examination in all 27 witnesses as PW-1 to PW-27 and got marked several documents at Exhibits P1 to P30 and so also got marked material objects namely MOs 1 and 2. After completion of the evidence on the part of the prosecution and so also on the part of the defence, incriminating statements as hit under Section 313 Cr.P.C. were recorded, wherein the accused denied the evidence facilitated by the prosecution. Subsequent to recording incriminating statement under Section 313 Cr.P.C., the accused were called upon to adduce any defence evidence as contemplated under Section 233 Cr.P.C., but the accused did not come forward to adduce any oral evidence or subjected to examination any defence witness.   During the course of cross- examination of certain witnesses, the contradictory statements have been got marked at Exhibits D1 to D5.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">20.<span style=\"white-space: pre;\">	</span>As regards the last seen theory, it requires corroboration. The accused person cannot be convicted solely on the evidence of last seen together with the deceased. Therefore, in the instant case, it is required to refer to the reliance in the case of Navaneethakrishnan vs. State by Inspector of Police (AIR 2018 SC 2027)). In the instant case, PW-18 / M. Narayana had been subjected to examination relating to last seen theory set up by the prosecution.   He had stated that Accused Nos.2 and 3 who are the co-accused, had accompanied the deceased Ravishankar in the auto-rickshaw belonging to the deceased to the Eucalyptus grove where the dead body of Ravishankar was buried and later exhumed in the presence of panch witnesses. PW-18 who has been subjected to examination relating to the last seen theory, had also accompanied the complainant / Rajamma to the police station to register a missing complaint. But Rajamma has not whispered about the role of Accused No.1 / Mohan Kumar though being the author of the complaint lodged with the Jurisdictional Police. Deceased Ravishankar was the step-brother of Mohan Kumar. There was a civil dispute which emerged between the parties. PW-9 / Sudha who is the wife of the deceased Ravishankar has been subjected to examination. A cursory glance of the evidence of PW-9 runs contrary to the evidence of Rajamma who had been subjected to examination. Even though the last seen theory has been set up by the prosecution, there is no corroboration to consider that the accused are deserving for conviction.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">21.<span style=\"white-space: pre;\">	</span>The material on record reveals that auto rickshaw KA- 02 / B 6541 was used by Accused Nos.2 and 3 along with the deceased Ravishankar, to proceed to the place where the body of Ravishankar was buried after committing his murder. However, the said auto-rickshaw belonged to one Balaji but it was in the possession of Mohan Kumar. But there is no specific evidence that the said auto-rickshaw was used by Accused Nos.2 and 3 who had accompanied Ravishankar to the place of burial, that is Eucalyptus grove. These are the evidence let in on the part of the prosecution, but there is no specific evidence to prove the guilt against the accused. The dead body of Ravishankar was decomposed and the same has been noticed by the Doctor.   The delay in exhuming the dead body is almost all 3 days and more importantly, the nylon rope alleged to be used by the accused to strangulate his neck, has not been recovered. Though it is stated in the PM report that there was ligature mark around the neck but any material such as rope has not been recovered in order to convict Accused Nos.1 to 3. Even relating to offences under Section 114 IPC, or Section 120 B of the IPC relating to conspiracy, there is no specific evidence on the part of the prosecution to prove the guilt against the accused as regard to conspiratorial meetings having been conducted among the accused persons. Further, the ingredients of Section 302 IPC and more so, the motive and intention and preparation and in terms of mens rea and actus rea have not been properly established by the prosecution by producing cogent and corroborative evidence in order to convict the accused. But in the criminal justice delivery system, the domain is vested with the prosecution to prove the guilt of the accused beyond all reasonable doubt. There should not be any doubt crept in the mind of the Trial Court. Unless fortified evidence is facilitated by the prosecution, it cannot arise for the Trial Court to convict the Accused.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22.<span style=\"white-space: pre;\">	</span>It is well-known principle of law that reliance can be based on the solitary statement of a witness if the court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. This issue has been extensively addressed by the Hon’ble Supreme Court in the case of Raja v. State (1997) 2 Crimes 175 (Del).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> Therefore, the domain is vested with the prosecution to prove the guilt of the accused by facilitating worthwhile evidence, which should not give any room for doubt in the theory put forth by the prosecution for convicting the accused. It is the quality of evidence and not the quantity of evidence which is required to be judged by the court to place credence on the statements of witnesses and material evidence facilitated, in order to prove the guilt of the accused. But the plurality of witnesses in the matter of appreciation of evidence of witnesses is the domain vested with the Trial Court alone.   It is not the number of witnesses but the quality of their evidence which is an important, as there is no requirement in law of evidence that any particular number of witnesses are to be examined to prove / disprove a fact. The evidence must be weighed and not counted. Further, the test is whether the evidence has a ring of trust, is cogent, credible and trustworthy or otherwise. Whereas the legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is the quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Indian Evidence Act, 1872. The same has been observed by the Hon’ble Supreme Court in the case of Laxmibai (Dead) through LRs vs. Bhagwantbura (Dead) through LRs reported in AIR 2013 SC 1204. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">23.<span style=\"white-space: pre;\">	</span>In the peculiar facts and circumstances of the matter and in the totality of circumstances, it is relevant to refer to the judgment in the case of Lalit Kumar Sharma and Ors. Vs. Superintendent and Remembrancer (AIR 1989 SC 2134), wherein it is held that the power of an Appellate Court to review evidence in appeals against acquittal is as extensive as its powers in appeals against convictions, but that power is with a note of caution that the appellate Court should be slow in interfering with the orders of acquittal unless there are compelling reasons to do so.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>27.<span style=\"white-space: pre;\">	</span>In the meanwhile of dictation of this judgment, it is submitted by the learned Senior Counsel Shri C.V. Nagesh that Accused No.2 / Harisha @ Kunta, S/o. late Rajappa who had also faced trial along with Accused Nos.1 and 3, has also been convicted by the Trial Court by the very same order in S.C.No.5021/2014 dated 28.08.2017. Though Accused No.2 is in incarceration, he has not filed any appeal challenging the said judgment of conviction and sentence. In view of the fact that the co-accused namely Accused Nos.1 and 3 are to be acquitted in the appeals, he prays that the said benefit of acquittal be extended to Accused No.2 who is in incarceration as well. In support of his contention, learned Senior Counsel produces a judgment of the Hon’ble Apex Court in the case of SAHADEVAN AND ANR. Vs. STATE OF T.N. (AIR 2012 SC 2435), wherein the relevant paragraph 41 of the said judgment is extracted thus:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“41. It is very difficult to set any universal principle which could be applied to all cases irrespective of the facts, circumstances and the findings returned by the Court of competent jurisdiction. It will always depend upon the facts and circumstances of a given case. Where the Court finds that the prosecution evidence suffers from serious contradictions, is unreliable, is ex facie neither cogent nor true and the prosecution has failed to discharge the established onus of proving the guilt of the accused beyond reasonable doubt, the Court will be well within its jurisdiction to return the finding of acquittal and even suo moto extend the benefit to a non-appealing accused as well, more so, where the Court even disbelieves the very occurrence of the crime itself. Of course, the role attributed to each of the accused and other attendant circumstances would be relevant considerations for the Court to apply its discretion judiciously. There can be varied reasons for a non- appealing accused in not approaching the appellate Court. If, for compelling and inevitable reasons, like lack of finances, absence of any person to pursue his remedy and lack of proper assistance in the jail, an accused is unable to file appeal, then it would amount to denial of access to justice to such accused. The concept of fair trial would take within its ambit the right to be heard by the appellate Court. It is hardly possible to believe that an accused would, out of choice, give up his right to appeal, especially in a crime where a sentence of imprisonment for life is prescribed and awarded. Fairness in the administration of justice system and access to justice would be the relevant considerations for this Court to examine whether a non-appealing accused could or could not be extended the benefit of the judgment of acquittal. The access to justice is an essential feature of administration of justice. This is applicable with enhanced rigour to the criminal jurisprudence. Where the court disbelieves the entire incident of the occurrence or where the role of the accused who has not appealed is identical to that of the other appealing accused or where the ends of justice demand, the Court would not hesitate and, in fact, is duty bound, to dispense justice in accordance with law. The powers of this Court, in terms of Articles 136 and 142 on the one hand and the rights of an accused under Article 21 of the Constitution on the other, are wide enough to deliver complete justice to the parties. These powers are incapable of being curtailed by such technical aspects which would not help in attainment of justice in the opinion of the Court. In light of the above principles, this Court is required to consider the effect of these judgments on the case of the non-appealing accused in the present case” </i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>28.<span style=\"white-space:pre\">	</span>On a perusal of the above judgment and having regard to Articles 21, 136 and 141 of the Constitution of India, we find justification in the contention of the learned Senior Counsel and we are of the opinion that the benefit of acquittal ought to be extended to Accused No.2 who has not preferred an appeal challenging the order of Trial Court, as well.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Crl.A.No.1550/2017 preferred by the appellant / Accused No.1 and Crl.A.No.1532/2018 preferred by the appellant / Accused No.3 under Section 374(2) of Cr.P.C., are hereby allowed. </b><br></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b4bf61779d2e60e97dffdb49fc0f8677.jpeg', 'a86aac72389eb0aeae138ea9ce85f991.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-22', 1, '', '', '2023-06-21 13:06:25', '2023-06-22 06:25:33'),
(3084, 'iAjtdIii9pS5Sa98GaGSSOton', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘’Stop passing callous orders while granting permission under Section 155, Cr.P.C’’. Karnataka High Court laments at careless orders of the Magistrates generating huge litigation before the High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vijesh Pillai Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 11186 of 2023 decided on 16 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioner is before this Court calling in question registration of a crime in Crime No.116 of 2023 by the K.R.Puram Police Station for offence punishable under Section 506 of the IPC.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 2.<span style=\"white-space: pre;\">	</span>Facts adumbrated are as follows:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The 2nd respondent is the complainant and petitioner is the accused. The 2nd respondent seeks to register a complaint on 11-03-2023 against the petitioner alleging that the petitioner has threatened and intimidated the complainant. The complaint is brought before the K.R.Puram Police Station upon which the Station House Officer seeks permission of the X Additional Chief Metropolitan Magistrate at Bengaluru to register a crime under Section 506 of the IPC for criminal intimidation in the light of the fact that Section 506 of the IPC is a non-cognizable offence and for a non-cognizable offence permission of the Magistrate would be imperative under Section 155 of the Cr.P.C., The learned Magistrate on receipt of requisition permits the crime to be registered on perusal of requisition. On the crime being registered, the petitioner has knocked at the doors of this Court in the subject petition not on the issue of merit of the matter but on non-application of mind on the part of the learned Magistrate granting permission.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>A complaint comes to be registered before the K.R. Puram Police Station alleging intimidation or threatening the life of the complainant. The complainant when approached K.R.Puram Police Station, a non- cognizable report is made and a requisition is taken to the learned Magistrate to register a crime on such non-cognizable report as the facts would lead to an offence under Section 506 of the IPC.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Section 506 deals with criminal intimidation. The ingredients of criminal intimidation are found in Section 503 of the IPC. Whoever threatens another with any injury to his person, reputation or property with intent to cause alarm to that person is said to have criminally intimated the victim. Therefore, the complaint did make out certain ingredients of Section 503. Since Section 506 is an offence that is non-cognizable, permission of the Magistrate would be required under Section 155 of the Cr.P.C., to register a crime.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Section 155 has four parts to it. Sub-section (1) directs that when information is given to an officer in charge of a police station of the commission of a non-cognizable offence, he should enter the substance of the information and refer the informant to the Magistrate. Therefore, what could be gathered from the said provision is that on a non-cognizable offence the informant has to be referred to the learned Magistrate. Sub-section (2) directs that no investigation on a non-cognizable offence can take place without the written order of the Magistrate. Sub-section (4) relates to amalgam of a cognizable and a non-cognizable offence and if it is an amalgam the rigour of Section 155(1) and (2) would lose its significance. The entire issue now revolves around the aforesaid provisions of law. In the case at hand upon receipt of the afore- quoted complaint, the Station House Officer records a non- cognizable report and sends a requisition to the learned Magistrate seeking to register a crime.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Therefore, the order is perused and permitted. Except saying perused, the requisition and permitted investigation or registration of FIR, there is no indication of any application of mind on the part of the learned Magistrate. This Court in plethora of cases has been emphasizing the fact that Magistrates should not permit registration of FIR by usage of words “permitted”, “perused permitted” or even “permitted registration of FIR”. All these illustrations of granting permission on the face of it suffers from want of application of mind. Permitting registration of a FIR cannot be a frolicsome act on the part of the Magistrate. The Magistrate exercises power under sub-section (2) of Section 155 of the Cr.P.C., In doing so, it cannot be that he could pass orders which do not bear a semblance of application of mind.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>Insofar as the submission of the learned counsel for the petitioner that the informant should be sent to the learned Magistrate seeking permission and not the Station House Officer would again become unacceptable though not completely but at least partially. This Court in the case of ANAND SINGH v. STATE OF KARNATAKA in Crl.P.No.3082 of 2007, disposed on 22.10.2008, has held that the informant should be referred to the learned Magistrate with a requisition seeking permission to investigate the case. This is further followed by another co- ordinate Bench in PRAVEEN BASAVANNEPPA SHIVALLI v. STATE OF KARNATAKA AND OTHERES4 where this Court has held as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“1211. (1) When a Police Officer finds it necessary to lay information before a Magistrate in a non cognizable case, he may, under Clause (b) of Sub-Section(1) of Section 190 of the Code of Criminal Procedure, make a report to the Magistrate in writing of the facts which constitute such offence.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">16.</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem; white-space: pre;\">	</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">In the present case, 2nd respondent having acted contrary to sub-section(1) of S. 155 Cr. P.C. and the learned Magistrate having not passed ‘an order’, instead, having made an entry ‘permitted’, being not ‘an order’ in the eye of law and in view of the prohibition contained in sub-section(2) of S. 155 Cr. P.C., the investigation made and the consequential charge-sheet filed for the offences under Ss. 504, 506 and 323 of IPC and the taking of cognizance of these offences and the issue of non bailable warrant in the first instance itself for proceeding further with the case against the accused are absolutely illegal. It is obvious that the police and the Magistrate have not bothered to look into S. 155 Cr. P.C. before proceeding further in the matter. Non application of mind and mechanical approach to the case are apparent.</span><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>18.<span style=\"white-space:pre\">	</span>Statutory safeguard given under S.155(2) Cr. P.C. must be strictly followed, since the same has been conceived in public interest and as a guarantee against frivolous and vexatious investigations.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i> 19.<span style=\"white-space:pre\">	</span>In the present case, as is clear from Annexure-J itself, the alleged offences being non-cognizable, in view of the safeguard provided under S.155(2) Cr. P.C. the police should have referred the respondent No. 3 to the Magistrate.”<br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Though the afore-quoted judgments of the co-ordinate benches of this Court have held that it is the informant who has to approach the Magistrate and not the Station House Officer, what is necessary to be noticed is, what this Court holds in PRAVEEN BASAVANNEPPA SHIVALLI (supra) referring to the Police Manual which mandates that a Police Officer finding it necessary to lay information before a Magistrate in a cognizable offence, may make a report in writing of such facts which constitute such offence. Therefore, it becomes necessary to notice the interpretation rendered by several High Courts of the very provision that has fallen for consideration in the case at hand.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space:pre\">	</span>The High  Court of Allahabad in BRIJ LAL BHAR v. STATE OF U.P. AND OTHERS6 has held as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>(2)<span style=\"white-space:pre\">	</span>Whether for getting, the order to investigate the non-cognizable case, the first informant has any right to move an application, before the magistrate concerned under Section 155(2) Cr.P.C. or it can only be moved by a police officer of a police station concerned. ….<span style=\"white-space: pre;\">	</span>….<span style=\"white-space: pre;\">	</span>….</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>8. Now I deal with issue No. 2. According to the provision of Section 155 Cr.P.C. only officer in charge or any police officer of a police station concerned can move an application to obtain the order for investigation from the magistrate concerned of a non cognizable case and there is no legal bar for moving such application by the first informant, Section 155(2) Cr.P.C. also envisages that no police officer shall investigate a non cognizable case without the \'order\' of magistrate, here the word \'order\' as mentioned above, it is relevant to deal with issue No. 2, in the wording of the provision of Section 155(2) the word \'without order\' is used. Therefore, the order may be passed by the magistrate concerned on the application of a police officer concerned or on the application of the first informant also. According to the provisions of Section 154 Cr.P.C. also the case is registered on the information given to the officer in-charge of a police station, relating to the commission of a cognizable offence. In default, the first informant may move an application under Section 156(3) for passing the \'order\' for doing investigation, it provides a right to the first informant to move an application on this analogy the first informant is also a competent person to move an application under Section 155(2) Cr.P.C.”</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The High Court of Allahabad frames a specific issue with regard to getting an order to investigate, is only the right of the first informant to move the Magistrate or it can be moved by the Police Officer of a police station concerned. It is answered that it can either be the first informant or the police officer.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(iv)<span style=\"white-space:pre\">	</span>The Andhra Pradesh High Court in SAJJAL AGARWAL v. STATE OF A.P. AND OTHERS8 has held as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>9.<span style=\"white-space:pre\">	</span>The police officer is barred from investigating a non-cognizable case without order of a Magistrate who has power to try such case or commit such case for trial, in view of Section 155(2) Code of Criminal Procedure Argument of the Petitioners\' counsel that the Station House Officer is not entitled to approach the Magistrate with a petition for permission under Section 155(2) Code of Criminal Procedure for investigating a non-cognizable case, has no legal basis. Sub-section (2) of Section 155 Code of Criminal Procedure which provides for investigation of a non-cognizable case by a police officer, is silent as who is competent to invoke the said provision before the Magistrate. It is open either to a police officer or to any complainant to approach the Magistrate under Sub-section (2) of Section 155 and seek permission of the Magistrate empowering a police officer to investigate a non-cognizable case. In my opinion, Sub-section (2) is an exception to Sub-section (1) of Section 155. Not only a police officer or a complainant can approach the Magistrate under Section 155(2) Code of Criminal Procedure but also the Magistrate suo motu can order a police officer to investigate a non-cognizable case.</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The High Court of Andhra Pradesh while interpreting sub-section (2) of Section 155 of the Cr.P.C. holds that not only the Police Officer can knock at the doors of the learned Magistrate, but the informant as well. Therefore the inference would be, it can either be the first informant or the police officer who could approach the learned Magistrate.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(vii)<span style=\"white-space:pre\">	</span>In PRAKASH RAJ v. STATE OF KARNATAKA11 a co- ordinate Bench of this Court holds as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>\"At the same time it may also be stated that nothing prevents a police officer from applying to the Magistrate for an order to register FIR and proceed further according to section 155(2) of the Code. This is what is discernible if sections 155 and 190 of the Code are read.”</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The co-ordinate bench deviates from the earlier principles laid down by this Court and holds that nothing prevents a Police Officer from applying to a Magistrate for an order to register FIR and proceed according to sub-section (2) of Section 155 of the Cr.P.C.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 9.<span style=\"white-space:pre\">	</span>On a coalesce of all the judgments what would unmistakably emerge is that, it is open to a Police Officer or any complainant to approach the Magistrate under sub-section (2) of Section 155 of the Cr.P.C., to investigate a non-cognizable offence. There is nothing in the section to indicate that the informant alone should seek permission from the Magistrate to commence investigation. I deem it appropriate to concur such plethora of opinions rendered by various High Courts as what sub-section (1) mandates referring the informant to the Magistrate. Sub-section (2) remains silent as to who has to obtain permission. Therefore, permission can either be sought by the complainant or by the Station House Officer. Wherefore, it is not necessary for the informant alone to knock at the doors of the learned Magistrate with a requisition seeking permission for registration of FIR, it could be either the informant or the Station House officer. I am in respectful agreement with the view taken by other High Courts and the co-ordinate bench of this Court in PRAKASH RAJ (supra). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>Coming to the facts of the case at hand, the learned Magistrate has granted permission as quoted hereinabove. It is in blatant violation of what is narrated and analysed in the course of the order. Therefore, I deem it appropriate to quash the order granting such permission and resultant registration of crime and direct the learned Magistrate to pass order afresh upon the requisition made bearing in mind the observations made in the course of the order. The order shall contain what is needed to contain as is observed hereinabove.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space:pre\">	</span>Writ Petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4d8db9f74fd21031a711d8e2e7f282bd.jpeg', '1daa84d98bbc96eb5fc3413e32e400d1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-21', 1, '', '', '2023-06-20 12:13:08', '2023-06-21 10:18:17');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3086, '12EGuXi5ut7xtwq1IStuRI4dS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A party seeking to lead evidence through a general or special power of attorney need not make a separate application seeking permission to lead such evidence in the matter. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shankramma and others Vs Anusuya Devi and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 200500 of 2022 decided on 1 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Petitioners who were defendants No.2 and 3 in the said suit had entered appearance, filed their written statement, as also cross-examined the plaintiff witnesses. When the matter was posted for evidence of defendants No.2 and 3, they filed an application under Order 3 Rule 2 read with Section 151 of CPC which came to  be numbered as IA No.24 seeking permission to lead evidence on their behalf throught Special Power of Attorney (SPA), same being opposed by respondent on the ground that the application was filed only to protract the proceedings and no grounds were made out for leading such evidence, the trial Court accepting the objections dismissed the application. It is aggrieved by the same, that the petitioner is before this court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>The points that would arise for determination by this Court are: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space:pre\">	</span>Whether a party seeking to lead evidence through a  general power of attorney or special power of attorney would be required to make an application seeking permission to lead such evidence in the matter?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> ii.<span style=\"white-space:pre\">	</span>Whether the request made in an application to lead evidence of Power of Attorney can be dismissed by stating that no grounds are made out? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>iii.<span style=\"white-space:pre\">	</span>What order?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>ANSWER TO POINT NO.1: Whether a party seeking to lead evidence through a general power of attorney or special power of attorney would be required to make an application seeking permission to lead such evidence in the matter?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 9.1.<span style=\"white-space:pre\">	</span>Order 3 of CPC deals with recognised agents and pleaders. In terms of Sub-rule (1) of Order 3, any appearance or application in court may be done by a party in such court or by his recognised agent or pleader.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 9.2.<span style=\"white-space:pre\">	</span>In terms of Sub-rule (2) of Order 3 the recognised agents is defined to be person holding power of attorney authorising hime to make such appearances, applications and act on behalf of a party, as also persons carrying on trade or business, for and in the name of a party to a proceeding. It is therefore, clause (a)<span style=\"white-space:pre\">	</span>which relates to power of attorneys authorising them to do such appearances, applications and acts on behalf of the parties which would be attracted in the present case.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.3.<span style=\"white-space:pre\">	</span>The said Sub-rule (2) permits recognised agents of parties to do the things as stated in the power of attorney, suffice it to say, the said permission is not by way of application but by way of very existence of sub-rule (2) to Order 3 of CPC. Thus, no particular application would be required to be filed seeking for permission to permit the power of attorney to lead evidence.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 9.4.<span style=\"white-space:pre\">	</span>Sub-rule (3) of Order 3 deals with the manner in which service could be effected on a recognised agent. Thus, service on a power of attorney amounts to service on a party. 9.5.<span style=\"white-space:pre\">	</span>In terms of Sub-rule (4) Order 3 of CPC a pleader can be appointed by a document in writing signed by a party or by his recognised agent or some other person duly authorised by or under a power of attorney to make such appointment. Thus, a power of attorney can even appoint a pleader or an advocate in a proceeding.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.8.<span style=\"white-space:pre\">	</span>I am of the considered opinion that a power of attorney cannot be shut out or prevented from leading evidence on behalf of a party to a proceeding. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.9.<span style=\"white-space:pre\">	</span>Hence, I answer Point No.1 by holding that a party seeking to lead evidence through a general power of attorney or special power of attorney would not be required to make a separate application seeking permission to lead such evidence in the matter.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>ANSWER TO POINT NO.2: Whether the request made in an application to lead evidence of Power of Attorney can be dismissed by stating that no grounds are made out?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.1.<span style=\"white-space:pre\">	</span>In view of my answer to point No.1, no application for permission is required for the power of attorney to lead evidence on behalf of a party. The question of rejection of such application on the ground that no grounds have been made out by a power of attorney to lead evidence is not sustainable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.2.<span style=\"white-space:pre\">	</span>The application in the present matter was not even required to be filed but appears to have been filed by abundant caution. That being the case, irrespective of rejection of IA-24 defendant No.2 and 3 always have a right to lead evidence through power of attorney in the matter subject to rules of evidence and rules of appreciation of evidence. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.3.<span style=\"white-space:pre\">	</span>In view of the above, I answer point No.2 by holding that reasoning followed by the trial Court in rejecting IA No.24 is not proper and just.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>11.<span style=\"white-space:pre\">	</span>ANSWER TO POINT NO.3: What order?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>i.<span style=\"white-space:pre\">	</span>The writ petition is allowed</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '022415fd7c70cdd743a292ccb1b7fc40.JPG', '8be1f03acdb3948eff1eb22ccfc949ee.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-21', 1, '', '', '2023-06-20 12:52:54', '2023-06-21 03:23:12'),
(3088, 'PGMGRehDoJ07cIohU7LZ0WNl3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Succession Act. Jurisdiction of the court to grant Succession Certificate is based on the ordinary residence of the deceased at the time of death with an intention to stay at that place for a considerable length. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mangamma and others Vs Sridevi B and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 222 of 2023 decided on 15 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>In this revision petition, the revision petitioners have assailed the order passed by the Trial Court dated 14.03.2023 passed on I.A.No.4 filed under Order 7, Rule 11(a) and (d) read with Section 151 of C.P.C. in P and S.C. No.26/2022 dismissing the application. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The factual matrix of the case of the petitioners before the Trial Court in P and S.C.No.26/2022 is that the petitioners had filed a petition under Section 372 Indian Succession Act, 1925 (‘the Act’ for short) praying the Court to grant an order of succession certificate in their favour that they are entitled for 2/3rd share in the death benefits i.e., GPF, PF etc., of Late Tulasi Kumar M. which amounts to Rs.11,33,332/- which is jointly and severally payable by the respondents Nos.1 and 5. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>It is contended in the petition that the petitioners are the wife and daughter of deceased Tulasi Kumar M., who is gainfully employed with the respondent No.5-company and came to know that the respondent Nos.1 to 3 have fraudulently obtained the death benefits of Late Tulasi Kumar M. Hence, they filed the petition.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>The Trial Court, having considered the grounds urged in the application and also statement of objection and having extracted Sections 19 and 20 of C.P.C., the Trial Court comes to the conclusion that the claim is in respect of the movables of the deceased and the deceased was also gainfully employed in Bengaluru and respondent No.5-compnay is also carrying business in Bengaluru. Hence, issuance of succession certificate is in respect of death benefits of late Tulasi Kumar M. is not hit by Sections 19 and 20 of C.P.C. and therefore, the very contention that no territorial jurisdiction to adjudicate the same cannot be accepted and application filed has to be rejected.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>Having heard the learned counsel for the petitioners and learned counsel for the respondents, the point that would arise for consideration of this Court is: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(1)<span style=\"white-space:pre\">	</span>Whether the Trial Court committed an error in dismissing the application filed under Order 7, Rule 11 (a) and (d) read with Section 151 of C.P.C. and whether it requires exercise of the revisional jurisdiction, in coming to the conclusion that the order passed by the Trial Court suffers from infirmity?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>Having considered the submission, it is appropriate to extract Section 371 of the Act, which reads as hereunder:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>“371. Court having jurisdiction to grant certificate.- The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at that time he had no fixed place of residence, the District Judge, within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate under this Part.”</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>Having considered this principle, it is very clear that, he should have an intention to reside there. But, here is a case where the deceased was staying and working in Bengaluru and was gainfully employed in Bengaluru and respondent No.5- employer is having its establishment in Bengaluru and the respondent No.1 also pleaded in the petition itself that her marriage was solemnized in the year 2019 and prior to that, he was employed in Bengaluru and was having residence in Bengaluru and in the death certificate also, it is mentioned as Bengaluru and admittedly, he also died in Bengaluru. Hence, it is very clear that he was residing for a considerable length of time in Bengaluru and the judgment of the Apex Court is also very clear that one who resides in a place or one who dwells in a place for a considerable period of time as distinguished from one who merely works in a certain locality or comes casually for a visit and the place of work or the place of casual visit are different from the place of “residence”. Hence, the very principle laid down in the judgment is not applicable to the case on hand.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>It is also important to note that the very contention that Section 371 of the Act has not been complied cannot be accepted and the very Section 371 of the Act is clear that jurisdiction can be invoked on the basis of place where the deceased ordinarily resided at the time of his death. But, in the case on hand, he was residing in Bengaluru at the time of his death and Section 371 of the Act is clear that when a person had no fixed place of residence, the District Judge, within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate under this Part. Further, the claim in this petition is with regard to death benefits of the deceased which is a movable property which is also claimed in Bengaluru and the respondent No.5 has to disburse the said amount. Hence, the said contention cannot be accepted.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space:pre\">	</span>The other contention of the learned counsel for the revision petitioners is that the Trial Court erroneously invoked Sections 19 and 20 of the C.P.C. and the same cannot be invoked.   The said contention cannot be accepted and Sections 19 and 20 of C.P.C. is with respect to movable property. In the case on hand, the respondent No.5 was carrying on business in Bengaluru and the deceased was gainfully employed in Bengaluru and the very contention that Sections 19 and 20 of C.P.C. invoked by the Trial Court is erroneous cannot be accepted. Hence, I do not find any error in the order passed by the Trial Court with regard to dismissing the application filed under Order 7, Rule 11 (a) and (d) read with Section 151 of C.P.C.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space:pre\">	</span>Hence, it is very clear that movable property which is held by the respondent No.5 was disbursed in Bengaluru and when the petitioners questioned the same, the respondent No.5-Company has directed the petitioners to obtain order from the Court on 28.03.2022. Hence, legal notice was issued to the petitioners and also the respondent No.5. When such clear pleading is made in the plaint with regard to the cause of action and apart from that, details are also given in the plaint with regard to the cause of action to claim the death benefits of the husband of the respondent No.1 herein. It is also settled law that Court has to look into the averments of the plaint while considering the application filed under Order 7, Rule 11 (a) and (d) read with Section 151 of C.P.C. and not the defence of the petitioners herein.   On that ground also, I do not find any merit in the petition. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24.<span style=\"white-space:pre\">	</span>The counsel for the respondents also brought to notice of this Court that the Trial Court has imposed cost of Rs.5,000/- while rejecting the application. On perusal of the order impugned, it is seen that nothing is discussed with regard to imposing cost and no reason is assigned for imposing cost as to abuse of process etc., and mere filing of an application under Order 7, Rule 11 (a) and (d) read with Section 151 of C.P.C. before the Trial Court is not a ground to impose cost, unless the Court power is abused. Hence, it requires interference with regard to imposing of cost is concerned. Accordingly, I answer the point framed by this Court as ‘negative’.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>(i)<span style=\"white-space:pre\">	</span>The petition is dismissed. However, the cost imposed by the Trial Court is set aside.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '98a3b7ef627c7a7c6cc66e693f8ed386.JPG', 'e42827841c3a27ae7c7b9428572ef200.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-23', 1, '', '', '2023-06-21 12:33:37', '2023-06-23 03:22:23'),
(3094, 'vIxP7km1PBt6udnTaEVxORzzC', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Proof of Will. When the attestor of a Will turns/declared hostile, other evidence showing proper execution of the Will can be relied upon. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Siddagangamma Vs Ramakka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 2151 of 2006 decided on 15 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Shivashankar Amarannavar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The respondent was the plaintiff and the appellant was the defendant in O.S. No. 227/1995. The said suit is filed seeking partition and separate possession of the plaintiff’s half share in the suit schedule properties. It is pleaded in the plaint that the suit schedule properties belongs to one Chinnappaiah and he got the same in the family division taken place among his brothers.   Plaintiff and defendant are the daughters of the said Chinnappaiah. Chinnappaiah died one year back prior to filing of the suit. It is stated that the said Chinnappaiah has not executed any testamentary document in respect of the suit schedule properties. The said plaintiff and defendant being the daughters of deceased - Chinnappaiah are entitled to equal share in the suit schedule properties being Class – I heirs. It is stated that both plaintiff and defendant are in joint possession of the suit schedule properties. It is stated that the parties are Hindus and governed by Mithakshara Law. As the defendant has refused to effect partition, on the request made by the plaintiff, the suit came to be filed seeking partition and separate possession of the plaintiff’s half share in the suit schedule properties. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>In the written statement, the defendant has denied the relationship with the plaintiff. It is stated that the suit schedule properties are self-acquired properties of the deceased - Chinnappaiah and the defendant is the only daughter of the deceased - Chinnappaiah. It is stated that the suit schedule properties are exclusively in possession and enjoyment of the defendant. It is further stated that late Chinnappaiah has bequeathed the suit schedule properties in favour of the defendant under a registered Will dated 23.01.1984 and subsequently the said Chinnappaiah died on 08.12.1994. After the death of Chinnappaiah, the defendant has become absolute owner in possession and enjoyment of the suit schedule properties. It is stated that the plaintiff is a stranger to the family of the defendant and father of the defendant. It is stated that the plaintiff is not the daughter of late Chinnappaiah and claim of the plaintiff is false, frivolous and vexatious and prayed to dismiss the plaintiff’s suit.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>This appeal came to be admitted to consider the following substantial questions of law: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space: pre;\">	</span>Whether the court below is justified in law and on facts in holding that the plaintiff is also the daughter of late Chinnappaiah despite the fact that the said factum has not been proved a provided under Section 50 of the Evidence Act?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 2.<span style=\"white-space: pre;\">	</span>Whether the court below is justified in law in recording a finding that the defendant has failed to prove due execution and registration of the registered will dated 23.1.1984 - Ex.D4?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space: pre;\">	</span>This Court in the case of Paramagonda and others Vs. Bangarewwa and another reported in 2003 (1) KCCR 145 has held that where there is a dispute regarding the relationship of the parties with the deceased, in a suit for partition of properties of the deceased, the relatives of the deceased having special knowledge of the relationship are competent witness and their evidence is admissible within the meaning of Section 50 of the Evidence Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space: pre;\">	</span>In the case of Jagadish Prasad Vs. Sarwan Kumar reported in AIR 2003 P & H 10 it is held that where a person is in common relation of the parties in suit, his statement relating to relationships between the parties was held to be admissible and believable under Section 50 of the Evidence Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>D.W.1 in her cross-examination has admitted that P.W.2  – Krishnappa is her elder uncles’ son. Said P.W.2 is common relative of plaintiff and defendant. As P.W.2 – Krishnappa is cousin brother of plaintiff and defendant, he is having special knowledge of their relationship with Chinnappaiah. P.W.2 has specifically deposed that plaintiff – Ramakka and defendant - Siddagangamma are the daughters of Chinnappaiah. Therefore, the evidence of P.W.2, who is having special means of knowledge as close relative of the parties, is relevant under Section 50 of the Indian Evidence Act. Evidence of P.W.3 and P.W.4 who are the villagers residing in the same village will also support the evidence of P.W.2. Even though it is suggested that P.W.2 is having enmity with the defendant, it is not established. D.W.1 herself in her cross-examination has admitted that there were no disputes between her father and others in respect of suit schedule properties. D.W. 2 is the younger sister of the mother of the defendant. She is residing in some other village. In view of the evidence of P.W.1 to P.W.4 the evidence of D.W.2 is not reliable and accordingly, the trial Court   and   first   appellate   Court   have   discarded   the evidence of D.W.1 to D.W.4. D.W.3 and D.W.4 are residents of some other village and they are not related to the family of Chinnappaiah. The trial Court and the first appellate Court have noted that Ex.P.5 is the survival certificate issued by the Tahsildar wherein it is stated that the plaintiff is the daughter of Chinnappaiah. The defendant has sought for cancellation of Ex.P.5 by notice (Ex.D.21) issued to the Tahsildar. Said Ex.P.5 is held to be issued properly and the same is stated in the reply of the Tahsildar (Ex.D.24) and it is mentioned that the defendant had failed to file affidavit that she is the only daughter of Chinnappaiah. Therefore, the trial Court and the first appellate Court are justified in law and on facts in holding that the plaintiff is also the daughter of Chinnappaiah. Accordingly, the substantive question of law No. 1 is answered in affirmative.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22.<span style=\"white-space:pre\">	</span>Learned counsel for appellant would contend that the other attesting witness is no more and in view of the evidence of D.W.4, the defendant is entitled to examine the other witness to prove the Will as per the provision contained in Section 71 of the Indian Evidence Act. He further submits that the scribe of the Will has been examined as D.W.5 and his evidence establishes the due execution of the Will. Section 71 of the Indian Evidence Act reads thus:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i> “71. Proof when attesting witness denies the execution.- If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.” </i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space:pre\">	</span>This Section enables the parties to prove the document when attesting witness denies the execution or does not recollect its execution. Where the attesting witness denies or fails to recollect its execution, evidence of the scribe and other witness is admissible to prove its due execution. D.W.4 has only stated that he affixed his signature on the Will (Ex.D.4) as a witness at the office of Prabhanna. He has not denied the execution of the document and it is not his evidence that he is not able to recollect its execution. In the case of a Will the attestor if declared hostile, other evidence showing proper execution of the Will can be relied upon as held in the case of B. Veeramma Vs. C. Ramakrishna reported in AIR 1976 AP 370. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24.<span style=\"white-space:pre\">	</span>Where the attesting witness states that he had not signed the Will but the executant deceased had not put his thumb impression in his presence, it was held that the same could not be termed as denial of execution or failure to recollect the same so as to attract Section 71 of the Indian Evidence Act as held in the case of Gurbachan Singh Vs. Gurdial Singh reported in AIR 2007 (NOC) 2322 (P & H). 25.<span style=\"white-space:pre\">	</span>In the case of a Will it was held that the words ‘execution of a Will’ comprehend the attestation in testator’s presence; that, therefore, the testimony of a non-attesting witness under Section 71 of the Indian Evidence Act is of no help, and the Will must be held as not properly proved as held in the case of Harish Chandra Vs. Basant Kumar reported in AIR 1974 Ori. 170.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>27.<span style=\"white-space:pre\">	</span>Learned counsel for appellant would contend that the evidence of D.W.5 establishes due execution of the Will by the testator - Chinnappaiah as required under Section 63(c) of the Indian Succession Act. The Hon’ble Apex Court in the case of Abdul Jabbar Vs. Venkata Sastri reported in AIR 1969 SC 1147 has held that the act of attestation must be done animo attestandii Ie with the intention to attest; the fact that one’s name is on the document does not make him an attesting witness irrespective of the purpose for which it is there. D.W.5 has stated in his evidence that he has attested his signature on the Will as the scribe. There is no intention of D.W.5 to attest the said Will and therefore signature of D.W.5 on the Will (Ex.D.4) does not make him an attesting witness. The Hon’ble Apex Court in the case of N. Kamalam (dead) and another Vs. Ayyaswamy and another reported in AIR 2001 SC 2802 has held that subscribing a signature on the part of the scribe cannot be identified to be of same status as that of the attesting witnesses. Signature of the attesting witness on a document required attestation is a requirement of the statute thus, cannot be equated with that of the scribe. The animus to attest, is not available, so far as the scribe is concerned. Considering all these aspects the trial Court and the first appellate Court have rightly held that the defendant has failed to prove due execution of the Will (Ex.D.4). Accordingly, the substantive question of law No. 2 is answered in the affirmative. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In view of the above, the appeal is dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '481892037cce2fdc3c709183dd6c4b40.JPG', 'b1e9b0eee60ea0c04345ce5f7864c1cd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-24', 1, '', '', '2023-06-22 12:42:14', '2023-06-24 03:21:42');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3087, 'LMHdIWYo2SZXPoAijtDGUKZlL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Property of first wife dying intestate goes even to the legally married second wife after the death of her husband. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>L. Venkatesh Reddy Vs H. Lakshmaiah Reddy Thr LRS and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 25858 of 2018 decided on 12 January 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ashok S. Kinagi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Brief facts leading rise to filing of this petition are as under: That the mother of the petitioner Smt.Guramma had purchased the suit property under a registered sale deed dated 14.11.1959. After her demise, petitioner\'s name was effected and entered vide M.R.No.4/1989-90 with due consent of his father - H.Lakshmaiah Reddy and he became the owner and in possession of the same. The father of the petitioner, in collusion with the revenue officials, got the revenue records mutated for the joint names of himself and the petitioner vide M.R.No.40/2002-03 without the knowledge of the petitioner. The petitioner being aggrieved by the revenue records, filed a suit in O.S.No.1083/2005 before the Trial Court seeking for the relief of declaration of ownership and permanent injunction. The Trial Court vide judgment and decree dated 06.01.2009 dismissed the suit of the petitioner. The petitioner being aggrieved by the judgment and decree passed by the Trial Court, preferred an appeal in R.A.No.46/2009 before the Principal District Judge, Bengaluru Rural District. The Appellate Court vide judgment and decree dated 29.08.2009, allowed the appeal and decreed the suit of the petitioner and moulded the relief of declaration into a partition suit and declared that the petitioner is a owner of half share in the plaint schedule property and father of the petitioner - H.Lakshmaiah Reddy was declared as a owner of half share in the plaint schedule property. The petitioner being aggrieved by the order passed in R.A.No.46/2009, preferred Second appeal in R.S.A.No.1500/2009 before this Court. This Court vide judgment and decree dated 08.09.2010, allowed the second appeal and set aside the judgment and decree passed in R.A.No.46/2009. The respondents filed a review petition in R.P.No.398/2010 before this Court. This Court vide order dated 25.11.2010 dismissed the review petition. The respondents being aggrieved by the judgment and decree passed in R.S.A.No.1500/2009 have preferred an SLP in Civil Appeal Nos.3725-3726/2015 before the Hon\'bel Apex Court. The Hon\'ble Apex Court vide judgment dated 17.04.2015, allowed the appeal and set aside the judgment and decree passed by this Court and restored the judgment and decree passed by the Lower Appellate Court. 2.2. The father of the petitioner H.Lakshmaiah Reddy and Respondents No.2 to 5 herein filed a Final Decree Proceedings in FDP.No.57/2015. During pendency of the FDP proceedings the respondent H.Lakshmiaiah Reddy i.e., the father of the petitioner died and the respondents No.2 to 5 filed an application seeking permission to bring the mother of respondents No.2 to 5 Smt.Jayalakshmamma the second wife of deceased H.Lakshmaiah Reddy as legal representative on record. The said application was opposed by the petitioner by filing a detailed objection. The Trial Court after hearing the parties, allowed the application and permitted the Smt.Jayalakshmamma wife of the deceased H.Lakshmaiah Reddy to come on record as legal representative of deceased H.Lakshmaiah Reddy as Petitioner No.1(a) therein. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>In order to consider the contentions of the learned counsel for the parties, it is necessary to consider some of the provisions of the Hindu Succession Act, which are extracted below:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>“Section 3(1)(f) “heir”—means any person, male or female, who is entitled to succeed to the property of an intestate under this Act; Section 3(1)(g) “intestate”—a person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect;</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>Section 8 - General rules of succession in the case of males.—The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter—</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>(a)<span style=\"white-space: pre;\">	</span>firstly, upon the heirs, being the relatives specified in class I of the Schedule;</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>(b)<span style=\"white-space: pre;\">	</span>secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>(c)<span style=\"white-space: pre;\">	</span>thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>(d)<span style=\"white-space: pre;\">	</span>lastly, if there is no agnate, then upon the cognates of the deceased.<br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>Section 14. Property of a female Hindu to be her absolute property.—</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>(1)<span style=\"white-space: pre;\">	</span>Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.—In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>(2)<span style=\"white-space: pre;\">	</span>Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.<br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>Section 15 - General rules of succession in the case of female Hindus.—</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>(1)<span style=\"white-space: pre;\">	</span>The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,—</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>(a)<span style=\"white-space: pre;\">	</span>firstly, upon the sons and daughters (including the children of any pre- deceased son or daughter) and the husband;</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>(b)<span style=\"white-space: pre;\">	</span>secondly, upon the heirs of the husband;</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>(c)<span style=\"white-space: pre;\">	</span>thirdly, upon the mother and father;</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>(d)<span style=\"white-space: pre;\">	</span>fourthly, upon the heirs of the father; and</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>(e)<span style=\"white-space: pre;\">	</span>lastly, upon the heirs of the mother.<br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>(2)<span style=\"white-space: pre;\">	</span>Notwithstanding anything contained in sub- section (1),—</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>(a)<span style=\"white-space: pre;\">	</span>any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>(b)<span style=\"white-space: pre;\">	</span>any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i>Section 16. Order of succession and manner of distribution among heirs of a female Hindu.—The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestates property among those heirs shall take place according to the following rules, namely:— Rule 1.—Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously. Rule 2.— If any son or daughter of the intestate had pre- deceased the intestate leaving his or her own children alive at the time of the intestate’s death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate’s death. Rule 3.—The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub- section (1) and in sub-section (2) to section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father’s or the mother’s or the husband’s as the case may be, and such person had died intestate in respect thereof immediately after the intestate’s death.”</i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>8.<span style=\"white-space: pre;\">	</span>As per the above provisions, the definition of “heir” means any person, male or female, who is entitled to succeed to the property of an intestate. Sofar as Section 8 is concerned the same deals with General Rules of succession in case male Hindu for dying intestate which shall devolve upon the legal heirs specified in the schedule. Section 14 deals with any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Section 15 deals with the property of a female Hindu, when the property of female Hindu dying intestate, shall devolve according to the rules set out in Section 16. Section 16 deals with the order of succession and manner of distribution among heirs of a female Hindu.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>9.<span style=\"white-space: pre;\">	</span>Now coming to the facts of the case, admittedly the suit property was purchased by Guramma on 14.11.1959. The petitioner is the son and H.Lakshmaiah Reddy is the husband of deceased Guramma.   The said Guramma died leaving behind the petitioner and her husband H.Lakshmaiah Reddy. After the demise of Guramma, H.Lakshmaiah Reddy married one Smt.Jayalakshmamma i.e., the proposed legal representative of deceased H.Lakshmaiah Reddy. The deceased H.Lakshmaiah Reddy made an application to the revenue authority to mutate the joint names of himself and the petitioner in the suit schedule property. The revenue authorities after following the procedure, passed the order effecting mutation in the joint names of himself and the petitioner. The petitioner filed a suit in O.S.No.1083/2005 for the relief of declaration of ownership and permanent injunction. The Trial Court dismissed the suit filed by the petitioner. The petitioner being aggrieved by the judgment and decree passed by the Trial Court filed an appeal in R.A.No.46/2009. The First Appellate Court moulded the relief and granted relief of partition and separate possession and held that the petitioner and his father i.e., deceased H.Lakshmaiah Reddy are entitled for half share each in the suit property and they shall workout their rights in the Final Decree Proceedings. The petitioner being aggrieved by the judgment and decree passed in R.A.No.46/2009 preferred second appeal in R.S.A.No.1500/2009 before this Court. This Court allowed the appeal and set aside the judgment and decree passed by the First Appellate Court and consequently decreed the suit of the petitioner as prayed for. The respondents filed a review petition in R.P.No.398/2010.   The said review petition came to be dismissed by this Court.<span style=\"white-space: pre;\">	</span>The respondents aggrieved by the same preferred Civil Appeal before the Hon’ble Apex Court, the Hon’ble Apex Court allowed the appeal filed by the respondents and set aside the judgment and decree passed in the second appeal and consequently restored the judgment and decree passed by the First Appellate Court. After the disposal of Civil Appeal, the respondents filed a Final Decree Proceedings in FDP No.57/2015 for drawing up of the final decree. During pendency of the FDP proceedings H.Lakshmaiah Reddy died on 01.09.2017 and respondents No.2 to 5 filed an application I.A.No.2 to bring Smt.Jayalakshmamma wife of deceased H.Lakshmaiah Reddy on record as legal representative of deceased Lakshmaiah Reddy. The said application was opposed by the petitioner. The Trial Court after hearing the parties, allowed the application.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>It is not in dispute that the suit property was purchased by deceased Guramma under the registered sale deed dated 14.11.1959 and it is also not in dispute that the said property has inherited by Guramma. As per Section 14(1) of the Hindu Succession Act, any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. In the present case, Guramma was the absolute owner of the suit schedule property under the registered sale deed dated 14.11.1959. After her demise i.e., as per Section 15(1) of the Hindu Succession Act, the property of a female Hindu dying intestate shall devolve firstly, upon the sons and daughters and the husband.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>Admittedly, in the present case, the petitioner is the son and deceased H.Lakshmaiah Reddy is the husband of deceased Guramma. The property left by deceased Guramma shall devolve upon the petitioner and her husband deceased H.Lakshmaiah Reddy. The Lower Appellate Court, considering Section 15(1)(a) has moulded the relief and converted the suit for declaration into partition and separate possession and granted a share and held that the petitioner and deceased H.Lakshmaiah Reddy are entitled for half share each in the plaint schedule property and they shall workout their rights, in the light of the FDP proceedings. In the instant case, Section 15(2) does not apply as Section 15(2) applies to (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased; (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>In the present case, deceased Guramma has not inherited any property either from her father or mother or from her husband or from her father-in- law. Further, the petitioner being the son and deceased H.Lakshmaiah Reddy being the husband, the said property devolves upon the petitioner and deceased H.Lakshmaiah Reddy as per Rule (a) of Sub- Section 1 of Section 15. Hence, Sub-Section 2 of Section 15 will not apply to the present case in hand.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>In the present case, the father of the petitioner i.e., deceased H.Lakshmaiah Reddy was allotted half share in the suit property. He died intestate leaving behind proposed legal heir i.e., Smt.Jayalakshmamma. The estate of deceased devolves on the legal heir on the death of the party. The legal heir/s are entitled for estate of the deceased H.Lakshmaiah Reddy. The proposed respondent falls within the definition of “Legal Heir” and as per the first schedule, the widow is a Class-I heir. The proposed legal heir is the wife of deceased H.Lakshmaiah Reddy. She being the Class-I heir is entitled for the estate of the deceased H.Lakshmaiah Reddy as per Section 8 and right to sue survives to the proposed legal heir in law.   As observed above, she represents the estate of her deceased husband. The Trial Court after considering the material on record, was justified in passing impugned order.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space: pre;\">	</span>Learned counsel for the petitioner has placed reliance on the judgment of the Hon’ble Apex Court in the case of SEETHALAKSHMI AMMAL -vs- MUTHUVENKATARAMA IYENGAR AND ANOTHER reported in [1998 (5) SCC 368]. The said judgment is not applicable to the present case in hand, as the issue involved in the said decision is under the category of Clause (b) of Sub-Section 1 of Section 15. Thereafter, the suit for declaration was filed and First Appellate Court has moulded the relief and granted half share in the suit property to deceased H.Lakshmaiah Reddy. The proposed respondent is claiming the estate of deceased Lakshmaiah Reddy and succession was open after the death of H.Lakshmaiah Reddy.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space: pre;\">	</span>Learned counsel for the petitioner has also placed reliance on the judgment of Hon’ble Apex Court in the case of DAYA SINGH (DEAD) THROUGH L.Rs. AND ANOTHER –vs- DHAN KAUR reported in [1974 1 SC Page No.700], wherein the Hon’ble Apex Court has held that on the death of limited owner, succession opens and would be decided on the basis of last male owner died on that day.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space: pre;\">	</span>In the present case, as observed above, the property was purchased by Guramma and she died leaving behind the petitioner and her husband H.Lakshmaiah Reddy. She was the full owner of the suit property as on the date of her death. The said property devolves upon the petitioner and H.Lakshmaiah Reddy. After the demise of H.Lakshmaiah Reddy, proposed legal representatives succeeds to the estate of deceased H.Lakshmaiah Reddy. The Trial Court was justified in recording that the legal representatives has succeeded to the estate of the deceased H.Lakshmaiah Reddy. Hence, I do not find any grounds to interfere with the impugned order in exercise of the supervisory power under Article 227 of the Constitution of India. Accordingly, the writ petition is dismissed. </b></font></span></p>', '3680afff3d987e003a5467fd8f53831d.JPG', '0786e6b788e2344fb7c9d8cfceeb0f45.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-21', 1, '', '', '2023-06-21 11:53:05', '2023-06-21 08:09:10'),
(3091, 'n7bs6KJgjmty4T0skj37DXAL1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Labour Law. Once domestic enquiry is held to be not proper or fair, employer can lead further evidence to establish the delinquency of the workman unless such evidence has already been led before the Labour Court. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Yenkappa Vs The Rajashree Cements Factory.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 8 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The petitioner claims to be the land owner who was employed by the respondent-employer in its cement factory as a Mechanic Labour in lieu of the land belonging to the petitioner being acquired by the respondent as a part of such acquisition apart from making payment of sale consideration for the said property. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The petitioner was employed in the year 1991. In the year 2010, when the petitioner was unauthorizedly absent for a period of 89 days, a charge sheet came to be issued for unauthorized absence. Reply thereto not being acceptable, an Enquiry Officer was appointed who submitted a report stating that the delinquency of the petitioner has been proved. On the basis of the said report, the Disciplinary Authority dismissed the petitioner from service. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>The petitioner filed a claim petition under Section 10(4-A) of the Industrial Disputes Act, 1947 (for short, hereinafter referred to as \'ID Act\') challenging the order of dismissal in KID No.157/2011 before the Labour Court, Gulbarga. The said Labour Court vide its award dated 12.06.2012 dismissed the claim petition. It is aggrieved by the same, the petitioner is before this Court.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>The points that would arise for determination are: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1)<span style=\"white-space: pre;\">	</span>Whether after finding rendered  on issue raised as regards enquiry being proper and fair in the negative would specific evidence be required to be led by the employer to establish the delinquency of the workman? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2)<span style=\"white-space: pre;\">	</span>Whether in the present case the respondent has been able to establish the delinquency of the petitioner after finding having been rendered as regards enquiry being not proper and fair? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3)<span style=\"white-space: pre;\">	</span>Whether the punishment of dismissal which has been imposed is proportionate to the delinquency alleged in the present case? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4)<span style=\"white-space: pre;\">	</span>Whether the subsistence wages is required to be awarded to the petitioner from the time of dismissal till passing of the award on account of the enquiry being held to be not fair and proper?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 5)<span style=\"white-space: pre;\">	</span>What order?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>Answer to Point No.1: Whether after finding rendered on issue raised as regards enquiry being proper and fair in the negative would specific evidence be required to be led by the employer to establish  the delinquency of the workman?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.1.<span style=\"white-space:pre\">	</span>Though initially no issue had been framed as regards properness and fairness of the disciplinary enquiry, subsequently, on 07.02.2012 such issue was framed and a finding was given thereon on 29.02.2012 holding the enquiry to be not fair and proper. Once an enquiry is held to be not fair and proper, then the evidence gathered during the enquiry cannot be looked into by the Labour Court. At such stage, it is then open for the employer to lead evidence to establish the delinquency if any, since all the evidence which had been gathered at the enquiry stage cannot be looked into on account of the enquiry not being fair and proper. The option then rests with the employer to lead further evidence to establish the delinquency since in the absence of such evidence, it cannot be held that there is any delinquency on the part of the workman. Thus, I answer point No.1 by holding that once an enquiry is held to be not proper or fair, it is the option of the employer to lead further evidence to establish the delinquency of the workman unless such evidence has already been led before the Labour Court since otherwise,<span style=\"white-space:pre\">	</span>it would have to be held that delinquency is not proved.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>Answer to Point No.2: Whether in the present case the respondent has been able to establish the delinquency of the petitioner after finding having been rendered as regards enquiry being not proper and fair?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.4.<span style=\"white-space:pre\">	</span>In the present case, it is not in dispute that the petitioner was absent for a period of 89 days. The only issue is whether it was unauthorized and/or justifiable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.5.<span style=\"white-space:pre\">	</span>As regards the authorization though it is contended by the workman that he had informed his superior and taken his permission, there is absolutely nothing which is placed on record to indicate such communication and/or approval. Even during the oral evidence, the same has not been established by the workman. Thus, it is clear that the workman has not been able to establish that his absence was authorized. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.6.<span style=\"white-space:pre\">	</span>As regards justifiability of absence and/or whether the absence was wanton, the contention of the workman was that the workman was suffering from typhoid, inflammation and back pain as also his daughter was getting married. In support of both these statements made, there is no evidence which has been produced. The workman has not produced any medical records, prescription or certification to establish that he was suffering from typhoid or back pain, was under treatment and/or that the doctor had advised him to take rest etc. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.7.<span style=\"white-space:pre\">	</span>In respect of the marriage of the daughter, there is no oral or documentary evidence which has been produced to establish the date of marriage, place of marriage, details of bride or the groom and if at all, it is the workman\'s daughter who was getting married.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 11.8.<span style=\"white-space:pre\">	</span>Be that as it may, even if it were to be accepted that the workman was attending to the marriage of his daughter, then in such an event, if the workman could attend the marriage, he could have approached the employer and submitted a leave letter or sought for permission. Looked into from any angle, justification which has been made is not supported by any evidence nor is it believable. It is on the basis of the evidence of MW.3 and MW.4 and the above reasoning, I hold that the employer has been able to establish the delinquency of the workman and that the evidence led prior to a finding on the enquiry being not fair and proper as also evidence led subsequent thereto, can be looked into to arrive at a decision as regards the above issue.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>Answer to Point No.3: Whether the punishment of dismissal which has been imposed is proportionate to the delinquency alleged in the present case?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.1.<span style=\"white-space:pre\">	</span>The evidence on record indicates that there were 71 earlier instances of unauthorized absence which resulted in warning letters, suspension from duty, charge sheet being issued etc. This evidence as regards past record being on record and the present absence also being accepted, the defence not being bonafide, I am of the considered opinion that punishment of dismissal awarded is proper and correct and proportionate to the delinquency alleged. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.2.<span style=\"white-space:pre\">	</span>Though the contention is raised that the employment of the workman was in lieu of land acquired and that the services of the workman could not be terminated, a perusal of the documents indicates that the acquisition having occurred long ago, the petitioner was employed in the year 1991 and it is only in the year 2010 after 19 years of service, that the termination occurred. Therefore, it cannot be said that the termination of the services of the petitioner is in order to get over the obligation agreed upon after acquisition. Further more, no malafides can be imputed on the employer after a period of 19 years of service.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>Answer to Point No.4: Whether the subsistence wages is required to be awarded to the petitioner from the time of dismissal till passing of the award on account of the enquiry being held to be not fair and proper?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.1.<span style=\"white-space:pre\">	</span>This issue is no longer res-integra. This Court in W.A.No.10260/2011 has held that once the domestic enquiry is held to be not fair and proper, then the dismissal in furtherance of such enquiry has to be treated as suspension and subsistence wages would have to be paid from the date of dismissal till the award in the event of the award upholding the dismissal. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.2.<span style=\"white-space:pre\">	</span>Applying the same to the present facts, the enquiry against the workman being held to be not fair and proper, termination of services would have be treated as suspension from the date of termination till the date of the award and the petitioner would be entitled for subsistence wages during the said period. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>Answer to Point No.5: What order?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space:pre\">	</span>The Writ Petition is partly allowed. </b><br></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1ee363410fb6c1bb3534e300fec17af2.JPG', 'c4fdebaaa2a5d63d860896b8bdc3ab90.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-22', 1, '', '', '2023-06-21 13:30:58', '2023-06-22 12:16:43'),
(3092, 'Ymx21hBfRrzIhSRLESQGuPXpn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Societies Registration Act. Merely because third party were to submit complaint, the Registrar cannot initiate an enquiry under Section 25 without application of his mind. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Lingasugar Taluk and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 201552 of 2023 decided on 9 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>The petitioner Nos.2 to 10 are stated to be the Governing Body members of the first petitioner society. A complaint came to be filed by respondent No.4 to the Registrar of Societies alleging various violations and making complaints as regards the running of the first petitioner Society registered under the Karnataka Societies Registration Act, 1960 (hereinafter referred to as ‘the Act’ for short). The Registrar instituted an enquiry when notices dated 23.05.2022, 16.07.2022 and 30.07.2022 were issued by the Deputy Registrar for conducting preliminary enquiry, Pursuant thereto, the Enquiry Officer was appointed on 21.03.2023. Another notice has been issued on 17.04.2022 by the third respondent Enquiry Officer to the petitioners. It is aggrieved by the same the petitioners are before this Court.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>The short question that arises for consideration in the present matter is whether the Registrar of Societies under Section 25 of the Act, can initiate an enquiry based on complaint received by him or his powers are restricted to only three circumstances: namely (i) suo moto; (ii) complaint by majority of the governing Body or (iii) complaint by not less than 1/3rd of the General body?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>In my considered opinion, sub-Section (1) of Section 25 of the Act can be segregated into three categories: (i) Firstly, Registrar on his own motion may institute enquiry; (ii) Secondly, the Registrar shall on the application of majority of the members of the Governing Body institute enquiry and (iii) thirdly, the Registrar shall on the application made by not less<span style=\"white-space:pre\">	</span>than<span style=\"white-space:pre\">	</span>1/3rd of the members of<span style=\"white-space:pre\">	</span>the<span style=\"white-space:pre\">	</span>society institute enquiry. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>In the latter two cases, no discretion is vested with the Registrar. On an application received in those two cases enquiry is mandatorily required to be instituted. 14.<span style=\"white-space:pre\">	</span>As regards first category, the Registrar may on his own motion institute an enquiry. It is the mean and purport of “on his own motion” which is up for consideration in the present matter. Merely because the third party were to submit a complaint, the Registrar cannot initiate an enquiry without application of his mind. If a complaint is received by the Registrar and if the Registrar on perusal of the said complaint were to be of the opinion that enquiry is to be instituted, then he can order to do so and when such an order is made by the Registrar, it can only be said to be on his own motion, since there is an independent application of mind by the Registrar.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 15.<span style=\"white-space:pre\">	</span>It is only in the event of the non-application of mind by the Registrar and or the Registrar blindly following the complaint lodged by a third party that there is an embargo under Sub Section (1) to Section 25 of the Act and such an enquiry would not come within the purview of Sub Section (1) to Section 25 of the Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>In the present case, as could be seen from the order of appointment of Enquiry Officer, on receipt of a complaint, the Registrar issued two notices for a preliminary enquiry and to find out whether there is prima facie truth in the allegations. It s upon receipt of the said report that the Registrar applied his mind to the report and came to an independent conclusion that an enquiry is required to be held. Thus the appointment of Enquiry Officer in the present case is not based on the complaint received but the registrar has acted upon it by instituting a preliminary enquiry and acted upon the preliminary enquiry as regards which he applied his mind. This application of mind, in my considered opinion, would constitute “on his own motion”. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>As such, I am of the opinion that no grounds are made out in the present petition.Hence, the petition is dismissed at the admission stage itself.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '26b5c956aba14f580c943b2f4afa1cd1.JPG', '6101b0063c92e491e79f81541dc39aa9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-22', 1, '', '', '2023-06-21 14:22:55', '2023-06-22 10:30:50');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3093, 'yPuKvK9h7vl81qi7sHBpzpgye', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'All lands, agricultural and non-agricultural, acquired under the land acquisition Act of 2013 are exempted from payment of Income Tax. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sharanappa Vs The Deputy Commissioner Raichur and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 201497 of 2023 decided on 31 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj. &nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The petitioner claims to be the owner of the land in Sy.No.152/*B measuring 8 acres situated at Chikkaberagi village, Sindhanur Taluk, Raichur District. The said land was proposed to be acquired by the respondent No.2 by issuing a notification under Section 4(1) of the Land Acquisition Act on 05.12.2011.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>Out of 8 acres of land, the possession of six acres was taken over prior to such notification for construction of percolation tank. Since acquisition was not completed and in the meanwhile, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 (for short hereinafter referred to as the ‘Act of 2013’) came into force, a reference was made under Section 64(1) of the Act of 2013, as regards compensation, which came to be numbered as LAC No.6/2017 before the First Additional District and Sessions Judge, Raichur.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>The said Court fixed the compensation of Rs.2,99,435/- per acre, additional market value at 12% per annum and 12% solatium on compensation and awarded 9% interest per annum for a period of one year from the date of preliminary notification and thereafter interest at the rate of 15% per annum.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">6.<span style=\"white-space: pre;\">	</span>Since the amounts were not paid by the State, Execution Petition came to be filed by the petitioner in Execution Petition No.610/2018 before the First Additional District Judge, Raichur. The State continued to default on the payment to be made, the petitioner filed I.A.No.III under Order 21 Rule 46B read with Section 151 CPC for garnishee order to be passed as regards the bank where the account of the State is held which also came to be allowed.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>Shockingly, the Special Land Acquisition Officer (for short hereinafter referred to as ‘SLAO’) furnished the information stating that in terms of Section 194LA of Income Tax Act, 1961 (for short, hereinafter referred to as ‘IT Act’), 10% would be deductible on interest on the compensation, in the event of PAN card details are furnished and in case PAN Card details are not furnished 20% would have to be deducted.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>The Income Tax Ward Officer, Raichur replied to the letter of the First Additional District Judge, Raichur by extracting Section 194LA of the Act without replying to the queries raised by the Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>Shockingly, the Principal District and Sessions Judge, Raichur, vide order dated 21.04.2023, directed withholding of 30% of the amount on the accrued interest and to make payment of the balance amount to the petitioner and deposit the deducted amount to the income tax department. It is challenging the said order that the petitioner is before this Court.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>The Short point that would arise for consideration in the present matter is whether tax is required to be deducted at source on compensation amount paid on account of acquisition of land?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space: pre;\">	</span>Section 194LA of the Income Tax Act, 1961, is reproduced hereunder for easy reference.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>‘194LA. Payment of compensation on acquisition of certain immovable&nbsp; property.—Any&nbsp; person&nbsp; responsible for paying to a resident any sum, being in the nature of compensation or the enhanced compensation or the consideration or the enhanced consideration on account of compulsory acquisition, under any law for the time being in force, of any immovable property (other than agricultural land), shall, at the time of payment of such sum in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct an amount equal to ten per cent of such sum as income-tax thereon: Provided that no deduction shall be made under this section where the amount of such payment or, as the case may be, the aggregate amount of such payments to a resident during the financial year does not exceed two hundred thousand rupees.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space: pre;\">	</span>A perusal of the above provisions would indicate that any person responsible for paying to the resident any sum being in the nature of compensation or enhanced compensation, or consideration or enhanced consideration on account of compulsory acquisition of immovable property other than agricultural land at the time of payment of such sum, has to deduct an amount equivalent to 10% as income tax and deposit the same with the concerned authority to the account of the assessee.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space: pre;\">	</span>The second proviso clearly makes out an exemption or exception as regards payment made in respect of award or agreement which has been exempted from levying of income tax. The proviso does not make any difference between agricultural or non- agricultural land. The exemption in terms of second proviso applies in its entirety when the land has been acquired and compensation is covered under Section 96 of the Act of 2013.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space: pre;\">	</span>A perusal of Section 96 of the Act of 2013 would make it abundantly clear that no income tax or stamp duty shall be levied on any award or agreement made under the Act except under Section 46.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>22.<span style=\"white-space: pre;\">	</span>A reading of Section 46 of the Act of 2013 would indicate that it relates to purchase of land through private negotiations, which necessarily means otherwise than through acquisition. This being so since the purchase price is fixed as per private negotiation and not by fixing of compensation under an award to be passed by following the parameters laid down under the Act of 2013.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space: pre;\">	</span>Thus, any land acquired and compensation paid in terms of an award passed under the Act of 2013, in terms of Section 96 of the Act of 2013, the compensation payable thereunder would not attract any income tax or stamp duty in terms of Section 96 of the Act of 2013 which is reinforced by the second proviso to Section 194LA of the IT Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>24.<span style=\"white-space: pre;\">	</span>Sri Shivakumar R. Tengli, learned Additional Government Advocate seeks to distinguish acquisition of agricultural land and non-agricultural land. In the light of Section 96 of the Act of 2013 read with Second proviso to Section 194LA of the IT Act would categorically indicate that no such distinction could be made and that all lands which are acquired and the award passed in terms of the Act of 2013, is exempted from payment of income tax. When the compensation itself is exempted from income tax, the question of deducting tax at source on such exempted income would also not arise. Hence, looked at from any angle, as long as the award is made under the Act of 2013, the compensation paid would not be liable for any tax. It is not in dispute in the present matter that the an Award has been passed under the Act of 2013. This aspect has been completely missed out by the SLAO in his letter to the court, and the court, without looking into the provisions and appreciating the import thereof, has passed the impugned order, requiring this court to intercede and correct the injustice caused.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space: pre;\">	</span>The Writ Petition is allowed.</b></font></span></p>', 'f1d0787dcc69c7b091db4443ca3e939d.JPG', 'f2a02ea14525a3f5874c4956910db21c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-22', 1, '', '', '2023-06-22 12:20:11', '2023-06-22 08:17:12'),
(3095, 'UM4DZHd1M9OGZeWpsmaIiitGa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Civil suit for injunction against acquiring body in respect of property acquired under a statute is not maintainable and is barred under Section 9 of CPC. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Bangalore Development Authority Vs Razia Begum.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular First Appeal 1918 of 2007 decided on 29 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.T. Narendra Prasad.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The case of the plaintiff is that she is the owner and in possession of the suit schedule property and the suit schedule property is a part and parcel of Sy.No.30/3 of Nagawara Village, Kasaba Hobli, Bangalore North Taluk. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>The further case of the plaintiff is that on 12.11.1977 the said land has been acquired under the Karnataka Acquisition of Land for Grant of House Sites Act, 1972. Before taking up the acquisition proceedings by the Government, the owner of the land has formed revenue sites through GPA holder one Sri Samiulla. Most of the persons who have purchased the revenue sites are houseless and siteless persons and the same has been brought to the notice of the Government. On their request, the Government de-notified the same by Notification dated 13.12.1984. It is also pleaded in the plaint that subsequently, the land in dispute has been acquired by the Bangalore Development Authority (for short, ‘the BDA’) under the Bangalore Development Authority Act, 1976 (for short, ‘the BDA Act’) and the possession has been taken.   Plaintiff has also applied to the respondent for allotment of the schedule land under Section 38C of BDA Act. On 20.12.1992 and 21.12.1999, the Assistant Engineer of the BDA and number of workers came to the spot and started to interfere into the suit schedule property. Hence, the plaintiff has filed a suit for injunction restraining the defendants from demolishing the building and taking possession of the suit<span style=\"white-space: pre;\">	</span>schedule property.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>The point for consideration in this appeal is, ‘Whether the judgment and decree passed by the trial court is erroneous, arbitrary and capricious and it calls for interference by this Court?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>The case of the plaintiff is that the suit schedule property bearing site No.38 is carved out of Sy.No.30/3 of Nagawara Village, Kasaba Hobli, Bangalore North Taluk, presently within the City Municipality of Byatarayanapura is in the possession of the plaintiff. The plaintiff has put up a structure in the suit schedule property. She has purchased the property from the original owner. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>The further case of the plaintiff is that the defendant, without the authority of law, has tried to dispossess the plaintiff and tried to demolish the building by using force. On the other hand, the defendant has filed a written statement contending that the Government by preliminary notification dated 29.05.1978 has acquired the land in Sy.No.30/3 of Nagawara Village and the final notification has been issued on 20.02.1985 by Gazette Notification dated 06.06.1985. Thereafter, they have drawn mahazar and taken the possession of the acquired land on 16.03.1988.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>It is very clear that the plaintiff has admitted that suit schedule property has been acquired by the BDA. Even the defendant has examined two witnesses as DW1 and DW2. DW-2 – Junior Engineer of the BDA has categorically stated that the suit schedule property is coming within the area acquired by the BDA. Even in the cross-examination, he has categorically stated that the suit schedule property has been acquired by the BDA. To that effect, he has also produced Ex.P6. The plaintiff has not elicited any worthwhile information from the defendant in the cross-examination. It is also very clear from the documents produced by the defendant i.e., Ex.D1 - preliminary notification, Ex.D2 – final notification, Ex.D3 – award, Ex.D4 – possession mahazar and Ex.D5 - notification issued under Section 16(2) of the Land Acquisition Act that the suit schedule property is a part of the land in Sy.No.30/3 which the BDA has acquired. The trial court, without considering this aspect of the matter and without considering the pleading and evidence of the parties has erred in holding that the suit schedule property has fallen in an unacquired area of 20 guntas.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>Since the suit schedule property is acquired by the Government under the BDA Act, the suit filed for injunction is not maintainable. The same is barred under Section 9 of CPC. The Hon’ble Apex Court in the case of BRIJESH REDDY (supra) has held as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“18. It is clear that the Land Acquisition Act is a complete Code in itself and is meant to serve public purpose. By necessary implication, the power of civil Court to take cognizance of the case under Section 9 of CPC  stands excluded and a civil court has no jurisdiction to go into the question of the validity or legality of the notification under Section 4, declaration under Section 6 and subsequent proceedings except by the High court in a proceeding under Article 226 of the Constitution. It is thus clear that the civil Court is devoid of jurisdiction to give declaration or even bare injunction being granted on the invalidity of the procedure contemplated under the Act. The only right available for the aggrieved person is to approach the High Court under Article 226 and this Court under Article 136 with self imposed restrictions on their exercise of extraordinary power.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i><br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i> 19. No doubt, in the case on hand, the plaintiffs approached the civil Court with a prayer only for permanent injunction restraining the defendant Nos. 1 and 2, i.e., BDA, their agents, servants and any one claiming through them from interfering with the peaceful possession and enjoyment of the schedule property. It is true that there is no challenge to the acquisition proceedings. However, in view of the assertion of the BDA, in their written statements, about the initiation of acquisition proceedings ending with the passing of award, handing over possession and subsequent action etc., the said suit is not maintainable. This was rightly concluded by the trial Court. For proper compensation, the aggrieved parties are free to avail the statutory provisions and approach the court concerned. All these aspects have been clearly noted by the trial Court and ultimately rightly dismissed the suit as not maintainable. On the other hand, the learned Single Judge of the High Court though adverted to the principles laid down by this Court with reference to acquisition of land under the Land Acquisition Act and Section 9 of CPC committed an error in remanding the matter to the trial Court on the ground that the plaintiffs were not given opportunity to adduce evidence to show that their vendor was in possession which entitles them for grant of permanent injunction from evicting them from the scheduled property without due process of law by the defendants. In the light of the specific assertion coupled with materials in the written statement about the acquisition of land long ago and subsequent events, suit of any nature including bare injunction is not maintainable, hence, we are of the view that the High Court is not right in remitting the matter to the trial Court for fresh disposal.” </i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17. In view of the above, the suit filed by the plaintiff is not maintainable. Accordingly, appeal is allowed. The judgment and decree passed by the trial court in O.S.No.9647/1999 dated 29.03.2007 is set aside. The suit filed by the plaintiff is dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> Any observations made in this order will not come in the way of the plaintiff to exercise her right, if it is available, under Section 38C and 38D of the BDA Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '19b89630ba44bfc1a3348f912f89fb49.JPG', 'c64222dad0701274abf516ae74f6d36a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-23', 1, '', '', '2023-06-22 13:10:22', '2023-06-23 12:27:09'),
(3096, 'Vx2kofaKE8FZeeNHlm8fnY5v6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Provision regarding regulation of erection of buildings under the Panchayat Raj Act does apply to erection of mere compound wall. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K Narasimha Kini Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 2504 of 2023 decided on 30 May 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice C.M. Poonacha.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>It is the case of the Petitioner that he is the owner of property bearing Sy.No.228/6 situated at Kuthyaru village, Kaup Taluk, Udupi District measuring 90 cents and he was erecting a compound wall in the said property. During such time, he was issued with a notice dated 26.09.2022 (Annexure- P to the Writ Petition), which was replied by him vide reply dated 06.10.2022 (Annexure-Q to the Writ Petition). It is the further case of the Petitioner that he made an Application dated 7.12.2022 (Annexure-V to the Writ Petition) wherein he sought permission from Respondent No.2 for putting up a compound wall. Respondent No.2 issued an endorsement dated 16.01.2023 whereunder he notified the Petitioner to get the property converted in order to consider the request for putting up a compound wall and Section 64 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (hereinafter referred to as the \'Act\') has been relied upon for the said purpose. Being aggrieved, the present Writ Petition is filed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>Learned counsel for the Petitioner contends that Section 64 of the Act is with regard to erection of buildings and not compound wall. That the Petitioner is only constructing a compound wall and hence, Section 64 of the Act would not be attracted. He further submits that the Petitioner is merely constructing a compound wall so as to safeguard his property and for the said purpose, question of getting the land converted does not arise. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>I have considered the submissions made on behalf of the learned counsel for the parties and perused the material available on record. The question that arise for considered is \'whether the relief sought for in the Writ Petition is liable to be granted?\' 6.<span style=\"white-space: pre;\">	</span>Admittedly, the Petitioner is putting up construction of a compound wall as is forthcoming from the photographs produced by the learned counsel for the Petitioner along with a memo dated 30.05.2020. The request has been made by the Petitioner to Respondent No.2 for grant of permission to put up a compound wall. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>Section 64(1) of the Act states as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>\"64. Regulation of the erection of buildings.- (1) Subject to such rules as may be prescribed, no person shall erect any building or alter or add to any existing building or erect advertisement hoarding or set up mobile towers a top or alongside or in any vacant space within the premises or reconstruct any building without the written permission of the Grama Panchayat. The permission may be granted on payment of such fees as may be specified by bye-laws.\" </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">8.<span style=\"white-space: pre;\">	</span>It is clear from the aforementioned that, Section 64 of the Act would attract only if a new building is sought to be constructed and would not arise to consider the request made by the Petitioner.  Hence, the question framed for consideration is answered in the affirmative and is liable to be granted.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> i.<span style=\"white-space: pre;\">	</span>Writ Petition is allowed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ee2510caa9f3b75b8d16bc74cd35ad02.JPG', '5f6489d66f3fffcdf82c2e9094ab0a25.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-23', 1, '', '', '2023-06-22 14:24:13', '2023-06-23 10:21:02'),
(3097, 'CgvHdr1mZEc19z3PxDaVuJltG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Re-assessment under Section 148A (d) of the Income Tax Act against a Company already merged with another Company is a substantive illegality and without jurisdiction. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Coffee Day Resorts (MSM) Pvt Ltd Vs The Deputy Commissioner of Income Tax and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 9594 of 2023 decided on 1 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S Sunil Dutt Yadav.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">The petitioner has filed the present writ petition seeking quashing of the order dated 28.03.2023 at Annexure-K passed by the first respondent under Section 148A (d) of the Income Tax Act, 1961 (\"the Act\" for short) rejecting petitioner\'s objection as against initiation of re-assessment of proceedings for the Assessment year 2019-20.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The petitioner Coffee Day Resorts (MSM) Pvt. Ltd., has questioned the validity of the re-assessment proceedings as noticed above. It is to be noticed that Shankar Resources Pvt. Ltd., was Non-Banking Financial Company (NBFC) and merged subsequently into the petitioner company by an order of amalgamation of National Company Law Tribunal (NCLT) dated 18.06.2019 with the appointed dated being 01.04.2018. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>It is submitted that respondent authorities issued a notice under Section 148A (b) of the Act on 28.01.2023 calling upon Shankar Resources Private Limited to show-cause as to why in view of the details contained in enclosures mentioned in point no.1 above, a notice under Section 148 of the Income Tax Act, 1961 should not be issued.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space:pre\">	</span>Various other contentions have been taken, on substantive grounds as regards the correctness of issuance of notice under Section 148A (b) which however need not be adverted to in light of the first contention relating to non-existence of M/s.Shankar Resources (P) Ltd., as noticed above. Only on the short ground that the reply not having been taken note of, order being passed under Section 148A (d) of the Act, copy of which is produced at Annexure-K, the order requires to be interfered in light of said legal position. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>It is noticed that in the order under Section 148A (d) the authority has taken note of merging of M/s.Shankar Resources (P) Ltd., with Coffee Day Resorts (MSM) Pvt. Ltd., but has adverted on merits and concluded that case was made out for issuance of notice under Section 148 of the Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>It is a matter of record that as on the date notice under Section 148A (b) was issued on 28.03.2023, the entity to which notice was issued was not in existence having merged along with the petitioner company. Even otherwise, it must be noted that consequent to merger, the transactions relating to erstwhile company M/s.Shankar Resources (P) Ltd., find mention in the books of the petitioner.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 9.<span style=\"white-space:pre\">	</span>In light of the judgment of the Apex Court in the case of Principal Commissioner of Income Tax, New Delhi v. Maruti Suzuki India Ltd. reported in (2019) 107 taxmann.com 375 (SC), it is clear that notice and assessment order passed in the name of non-existing company is a substantive illegality and is an order passed without jurisdiction. Accordingly, only on the above ground of M/s.Shankar Resources (P) Ltd., having merged with the petitioner company and was not an existing entity as on the date of issuance of notice, the notice under Section 148A (b) dated 28.01.2023 vide Annexure-D, similar identical notice dated 23.02.2023 at Annexure-F and notice dated 13.03.2023 at Annexure-H are set aside. So also, order under Section 148A (d) dated 28.03.2023 vide Annexure-K and notice under Section 148 dated 28.03.2023 vide Annexure-L are set aside.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '27eb7a8a70bc99e6002876feb2e410e3.JPG', 'abb5e111b9c0d500e26109598d687c8b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-23', 1, '', '', '2023-06-22 15:19:44', '2023-06-23 06:24:29'),
(3109, 'vC9cJKGP0LnJmBG5AyOoTtxzc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mere pendency of second appeal against dismissal of suit for specific performance of sale agreement between landlord and tenant is not a ground to postpone the eviction proceedings. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Syed Humayun Vs S.G. Jayagopal.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>House Rent Rev. Petition 26 of 2016 decided on 23 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>This revision petition is filed challenging the order passed by the Trial Court in H.R.C.No.16/2008 dated 01.10.2013 allowing the petition filed under Section 27(2), (a) and (r) of the Karnataka Rent Act, 1999 directing the petitioner herein to quit and vacate the premises within one month from the date of the order and also directed to pay Rs.41,000/- computing the rent at the rate of Rs.1,000/- per month from 17.07.2007 to 17.11.2007 and the rents accrued thereafter within one month from the date of the order. The revision petitioner has also challenged the order of dismissal passed by the Rent Revision Court in R.R.No.69/2013 dated 30.09.2015 confirming the order of the Trial Court granting 90 days time to vacate the premises from the date of the said order.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2.         The factual matrix of the case of the respondent- landlord before the Trial Court is that he had purchased the petition schedule premises from previous owner Smt. Rani Balu G. At the time of purchase, the respondent therein was residing in the petition schedule premises as tenant. After purchase, the vendor of the petitioner issued the letter of attornement dated 09.12.2004 and since then, the respondent is continuing as a tenant of the schedule premises under the petitioner. The tenancy is oral tenancy and the rate of rent is Rs.1,000/- per month. The petitioner issued the legal notice dated 23.11.2007 calling upon the respondent to pay the arrears of rent, the respondent not paid the rents. The petitioner is a retired railway employee and he required the schedule premises for his bonafide use and occupation. The petitioner wants to accommodate his son, who is married and unemployed.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20.       Having heard the learned counsel for the petitioner and learned counsel for the respondents, the point that would arise for consideration of this Court is:<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(1)        Whether the Trial Court as well as the Rent Revision Court have committed an error as contended by the learned counsel for the petitioner and whether it requires interference of this Court?<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> (2)       What order?<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(1)<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27.       Having considered both oral and documentary evidence placed on record, I do not find any error committed by the Trial Court as well as the Rent Revision Court while considering the material on record. Learned counsel appearing for the respondents also relied upon the judgment of the Apex Court in JOSEPH KANTHARAJ’s case and the very same judgment was also relied upon by the learned counsel for the petitioner and in Para No.10 of the said judgment, the Apex Court has observed that the Courts dealing with summary proceedings against tenants under the Rent Acts for eviction, should be wary of the defendants coming forward with defences of agreement of sale, lest that becomes a stock defence in such petitions. Unless the Court is satisfied prima facie that the agreement is genuine and defence is bonafide, it should not defer the proceedings for eviction under the Rent Acts and the same is applicable to the facts of the case on hand since, there is a dispute with regard to the agreement of mortgage as well as agreement of sale and based on the agreement of sale, the suit was filed and the same was dismissed and the appeal was also dismissed and only R.S.A. is pending. Under such circumstances, the principles laid down in the said judgment are aptly applicable to the facts of the case on hand and in the judgment relied upon by the respondent, it is held that if the suit is pending, only the eviction proceedings can be deferred but, in the case on hand, already the suit as well as the appeal are dismissed.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 28.      It is also important to note that the alleged agreement of mortgage was not produced before the Court and only the document at Ex.R8-sale agreement is produced before the Court. The learned counsel for the petitioner would vehemently contend that possession was given based on the sale agreement. However, on perusal of the sale agreement, no such averment is made and it is specifically mentioned that, possession will be delivered at the time of executing the sale deed. When such being the factual aspects, if really the petitioner is put in possession of the schedule premises in view of the agreement of lease of the year 2003 itself, there would have been reference in the sale agreement which is marked as Ex.R8 that the petitioner and his mother are in possession of the property in terms of the agreement of mortgage of the year 2003 and the same is not found in the said agreement.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 29.      Under the circumstances, the very contention of the petitioner that he and his mother were in possession of the schedule premises as lease holders cannot be accepted but, the fact is that they have admitted the possession not as tenants and prior to sale made by the erstwhile owner, legal notice was issued in terms of Exs.P2 and P3 by the landlord and the same was served on the petitioner herein and he has not given any reply and also not stated anything about he was not a tenant and the recitals of Ex.P1-sale deed is very clear that they are the tenants and the same is mentioned in the registered document itself. Hence, it cannot be contended that there is no jural relationship of landlord and tenant between the parties and both the Courts have considered the material on record and rightly comes to the conclusion that jural relationship between the parties has been established and relationship is also established by operation of law.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30.       Further, in the order of eviction which has been passed, both the Courts have taken note of the contents of Ex.P3-legal notice, wherein the landlord specifically demanded for payment of arrears of rent and inspite of service of notice, neither reply was given nor the rent was paid. It is the claim of the landlord, who is a retired railway employee that he is in need of the premises, since he has to accommodate his married son, who is unemployed and the same has not been seriously disputed by the petitioner herein and both the Courts have invoked Section 27(2)(a) and (r) of the Karnataka Rent Act, 1999. Apart from that, the Courts have also taken note of Section 27(2)(o) since the very jural relationship and title is disputed by the revision petitioner, based on the sale agreement and he was unsuccessful in both the suit as well as the appeal. Under such circumstances, I do not find any merit in this revision petition to reverse the findings of the Trial Court and both the Courts have given anxious consideration to both oral and documentary evidence placed on record. Hence, I do not find any error committed by the Trial Court as well as the Rent Revision Court and the contention that without considering the I.A. filed under Section 43 of the Karnataka Rent Act, 1999, the main petition cannot be disposed of cannot be accepted.. Accordingly, I answer the point framed by this Court as ‘negative’.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(2)<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The revision petition is dismissed.</b><o:p></o:p></p>', '74626bc0e9ff19df4d6337aa1755e1b9.JPG', '191a3ceb7fdaa2d6b8ea8c3719ac6ff8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-27', 1, '', '', '2023-06-26 12:21:16', '2023-06-27 08:15:23');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3104, '7Y7CHLcBuT4oh1aHwFBcOjHZL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cr.P.C. There must be an order of attachment issued by the Magistrate under Section 83. The issuance of a proclamation under Section 82 by itself will not amount to any attachment. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State Bank of India Vs The Sub Registrar and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WP(C) 35575 of 2022 decided on 2 June 2023,<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Anu Sivaraman.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This writ petition is filed seeking the following reliefs :-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>“(i) Issue a writ, order or direction in the nature of mandamus,\r\ndirecting the 1st respondent to register the sale deed\r\nproduced by the petitioner, in favour of Mr.Jose\r\nThullakulathil Simon, S/o.Thullakulathil Daniel Simon,\r\nThullakulathil House, Kulananda, Pathanamthitta District,\r\nby not insisting the endorsement regarding the\r\n“attachment” in the document to be registered.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) Issue a writ, order, or direction in the nature of\r\nmandamus, directing the 6th respondent to efface/ expunge\r\nall attachments effected after 5-3-2014 in the mortgaged\r\nproperty, from the Tandaper Register, as the attachment\r\nitself is illegal.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iii) Declare that the insistence of endorsement regarding the\r\n“attachment” in the document to be registered is illegal\r\nand arbitrary, as the “attachment” was ordered by the\r\nJudicial First Class Magistrate Court-I, Peermade, after\r\nthe creation of mortgage and that the criminal\r\nproceedings against the accused in the said case who is\r\nthe borrower with the bank has been abated by his death\r\non 4-6-2021.”<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The learned counsel for the petitioner, relying on the\r\ndecision of this Court in Molly v. State of Kerala [1994 (2) KLT 62],\r\ncontended that where the accused fails to appear in spite of process\r\nbeing issued against him, the Magistrate could definitely have taken\r\nsteps against him as an absconding offender under Section 82(1).\r\nHowever, for an order of attachment to be issued against his\r\nproperty under Section 83, the court must be satisfied by affidavit\r\nor otherwise that the conditions provided in clauses (a) and (b) of\r\nproviso to sub-section (1) of Section 83 are available. It was held\r\nthat the proceedings under Sections 82 and 83 are distinct and\r\nseparate and it is only when there is a satisfaction by the\r\nMagistrate that the person in relation to whom the proclamation is\r\nto be issued is about to dispose of the whole or part of his property\r\nor is about to remove the whole or part of the property from the\r\nlocal jurisdiction of the court that the attachment can be issued\r\nsimultaneously with the proclamation.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Relying on a judgment of the High Court of Karnataka in\r\nNithya Shambhavananda v. State of Karnataka [2021 SCC Online\r\nKar 12139 : (2021) 2 KCCR 1808], it is contended that an order of\r\nattachment under Section 83(1) is one which has to be passed by\r\nthe concerned court and in the absence of such a specific order of\r\nattachment passed by the Magistrate Court, there can be no <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">delegation to the jurisdictional Deputy Commissioner or District\r\nMagistrate or any other officer to attach the property. It is further\r\ncontended that the said decision is authority on the point that it is\r\nonly after a proclamation of an accused to be an absconder under\r\nSection 82 of Cr.P.C. is issued that the power of ordering\r\nattachment of properties of the absconding person can be exercised\r\nby the Magistrate.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. It is further contended that in MD. Nazrul Islam v. State\r\nof Assam [2008 SCC Online Gau 78], the issue has been considered\r\nand it was held that the issuance of proclamation and attachment\r\nunder Sections 82 and 83 of the Cr.P.C. is not an automatic or\r\ncasual exercise. It was held that before issuance of such\r\nproclamation and attachment, the court must apply its judicial mind\r\nand arrive at a decision disclosing the reasons to believe that a\r\nsimultaneous action needs to be taken for proclamation and\r\nattachment. Mere return of warrant of arrest without execution\r\nwould not authorise the Magistrate to issue an order for\r\nproclamation and attachment. It was further held as follows :-</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>“22. The aforesaid provisions of law, particularly sections\r\n82 and 83, Cr.PC makes it abundantly clear that the court must\r\nrecord its reasons to believe for taking such action and it must also\r\nsatisfy about the abscondance of the accused as well as about the\r\ndealing with his property as contained under section 83, Cr.PC and\r\nwithout such compliance, the issuance of such order for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">proclamation and attachment cannot be said to have done in valid\r\nexercise of power.”\r\n</span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. In the instant case, it is the specific case of the petitioner\r\nthat all that had been done by the Magistrate on 19.2.2018 was the\r\nissuance of orders for publishing a proclamation under Section\r\n82(1). No order was in existence directing the attachment of the\r\nproperty of the 1st accused or directing simultaneous publishing of\r\nproclamation and the attachment of the property after entering a\r\nsatisfaction that the conditions as provided in the proviso to Section\r\n83(1) exists. From the records made available by the learned\r\nSpecial Government Pleader also, it appears that what was done\r\nafter the order dated 19.2.2018 was the publishing of a\r\nproclamation under Section 82. Thereafter, without any orders\r\nhaving been passed by the Magistrate under Section 83, it appears\r\nthat steps have been taken by the Village Officer on a wrong\r\nunderstanding of the provisions and assuming that the power under\r\nSection 83 had also been exercised by the Magistrate.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13. Going by the provisions of Sections 82 and 83, it is\r\nevident that two separate orders are contemplated under the\r\nprovisions of the said sections. Under Section 82, the court, on\r\nbeing satisfied that the person against whom a warrant has been\r\nissued has absconded or is concealing himself so that such warrant </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cannot be executed, has to publish a written proclamation requiring\r\nhim to appear at a specified place and at a specified time not less\r\nthan 30 days from the date of publishing such a proclamation.\r\nFrom the materials placed on record, it appears that a proclamation\r\nunder Section 82 has been published in accordance with the\r\nprocedure provided in Section 82(2). Therefore, the statement by\r\nthe court that such a proclamation has been published is liable to be\r\naccepted by this Court as well under Section 82(3). Thereafter,\r\nSection 83 provides for an order of attachment of any property,\r\nmovable or immovable belonging to the proclaimed person being\r\nissued. Going by the proviso to Section 83(1) in the circumstances\r\nprovided thereunder, such order of attachment can be issued\r\nsimultaneously with the proclamation as well. However, it is clear\r\nfrom a reading of Section 83 that there must be an order of\r\nattachment issued by the Magistrate under Section 83 and the\r\nissuance of a proclamation under Section 82 by itself will not\r\namount to any attachment unless an order of attachment is\r\nspecifically issued by the Magistrate.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">14. In the instant case, I find that though a proclamation has\r\nbeen published under Section 82, no order of attachment either\r\nsimultaneous to the proclamation or issued thereafter has been </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">rendered by the Magistrate to justify the stand taken by the 1st\r\nrespondent with regard to the registration of the sale certificate.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\nIn the above view of the matter, I am of the opinion that\r\nthe prayers as sought for in the writ petition are liable to be\r\ngranted</b></span><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '12cf9fd75c6c0b3cd06e6b067722956e.jpeg', '2d111ef39ab345cc7c598ae1c1553ca7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-24', 1, '', '', '2023-06-23 15:06:10', '2023-06-24 09:21:52'),
(3100, 'sXRU5s7HrbdXov2CF2lLwxYI6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Succession Act. Amended Section 6 has no application in respect of property already sold prior to 20th December, 2004 even though the daughters have not joined the sale transaction. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Renuka Vs V. Muniraju and others .<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular First Appeal 350 of 2015 decided on 28 February 2020.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice E.S. Indiresh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The brief facts of the case are: Plaintiff has filed a suit for partition and separate possession of her one-fifth share in the suit schedule property by metes and bounds and also sought for mense profits and for award of costs of the suit.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>Plaintiff is the daughter of original defendants No.1 and 2, and the defendants No.3 and 4 are the brothers of the plaintiff. During the pendency of the suit the parents of the plaintiff and the defendants, viz. defendant No.1 and 2, died.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>Plaint averments are that the plaintiff along with defendants No.1 to 4 herein constitute a joint family and are coparceners and governed by Hindu Law of Mitakshara school. The plaintiff states that the suit schedule property is an ancestral property of the first defendant and her Uncle (brother of defendant No.1-Venkatappa) and by virtue of the decree passed in the partition suit in OS No.797 of 2003 before the Additional City Civil and Sessions Judge, Bangalore, the defendant No.1 herein has inherited the property from his deceased father as the said suit came to be disposed of in terms of the compromise petition filed before the trial Court in OS No.797 of 2003. Thereafter, final decree proceeding was drawn and the decree was registered on 30th October, 2003 and 14th November, 2003 before the Sub-Registrar. Bangalore South Taluk. In the said partition deed, suit schedule property has fallen to the share of first defendant herein. The Plaintiff and the defendants No.2 and 3 were not parties to the said partition decree. However, the defendants No.1 to 4 have sold an unit to an extent of 30 x 40 feet of vacant land to the fifth defendant by way of registered sale deed dated 26th November, 2004. Plaintiff states that the defendants No.1 to 4 have no right or title to sell the aforementioned property without the consent of the plaintiff and as such the alleged sale deed dated 26th November, 2004 effected by the defendants No1. to 4 infavour of the defendant No.5 is not binding on the plaintiff. It is further averred in the plaint that the plaintiff has got equal share, right and title insofar as suit schedule property is concerned along with the defendants No.3 and 4. Even assuming that the property being sold by defendants No.1 and 2, as mentioned above, the said sale deed is not binding, as the said sale deed was executed without the consent of all the members of the joint family including her interest in the family, and in view of the same, the plaintiff had convened panchayat at Bilekahalli village during first week of June, 2008 in the house of defendants. However, defendants No.1 to 4 have refused to effect the partition by metes and bounds, and as such, she was constrained to file suit for partition and separate possession in OS No.4615 of 2008 before the Trial Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>In response of the issuance of suit summons, the defendants have appeared through their counsel. Defendants No.1 and 2 have filed written statement stating that the defendants No.1 to 4 did not perform the marriage of the plaintiff, as the plaintiff’s marriage was a love marriage and the entire family was against the marriage, and as such, the plaintiff is not entitled for any share in the joint family property. Defendant No.2 further states that defendants No.2 to 4 are in joint possession and enjoyment of suit schedule property and the fifth defendant is not in possession of suit schedule property, and therefore, the second defendant sought for dismissal of the suit. Defendants No.3 and 4 have not filed the written statement before the Trial Court. The fifth defendant has filed written statement denying the plaint averments with regard to share of the plaintiff in the joint family of late M. Venkatappa (Defendant No.1). The main contention of the fifth defendant is that the first defendant has colluded with the plaintiff during the panchayat, as such, in order to settle the family dispute between the plaintiff as well as the defendants No.1 to 4, the fifth defendant has agreed to pay Rs.10,000/- to the plaintiff on humanitarian ground. However, since the plaintiff has made a claim for Rs.1,00,000/-, accordingly, the fifth defendant in order to put an end to the dispute, agreed to pay and accordingly has paid Rs.1,00,000/- before the witnesses of the said consent letter (oppige patra) and pursuant to the same, she has executed a consent letter (oppige patra) dated 27th July, 2007 and has agreed that she would relinquish her right, title and interest over suit schedule property. The fifth defendant further submits that the suit, which is filed by the plaintiff, is a collusive suit only to deprive his legitimate right over the suit schedule property and accordingly sought for dismissal of the suit.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space: pre;\">	</span>Having taken note of the arguments advanced by the learned counsel for the parties, the points that arise for consideration are</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space: pre;\">	</span>whether the Trial Court is justified in dismissing the suit of the appellant; and</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space: pre;\">	</span>whether the sale deed dated 26th November 2004 is hit by Section 6 of the Hindu Succession Act?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>It is an undisputed fact that the relationship between the parties are not disputed by either of the parties. Plaintiff and Defendants No.3 and 4 are the children of the defendants No.1 and 2. The first defendant has acquired the suit schedule property by virtue of a compromise decree drawn in OS No.797 of 2003 before the Additional City Civil Judge, Bangalore, between the first defendant and his brother as joint family members. Thereafter, a final decree was registered on 31st October, 2003 and the same came to be registered before the Sub-Registrar on 14th November, 2003 and in view of the same, the suit schedule property, as per the partition deed, had fallen to the share of the first defendant and as such, the suit schedule property is the ancestral property of the first defendant herein. It is also not disputed that the defendants Nos.1 to 4 herein have executed a registered sale deed dated 26th November, 2004 in respect of the suit schedule property in favour of defendant No.5.&nbsp; The only contention raised by the plaintiff is that though she is a member of the joint family of defendant No.1 and also she has not signed the registered sale deed dated 26th November, 2004 and as such, the alienation of the suit schedule property made in the said sale deed Exhibit P2 in favour of the defendant No.5 is not binding on her and she is having right of succession in respect of the suit schedule property as per amendment brought in to Section 6 of the Hindu Succession Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space: pre;\">	</span>The 1956 Act is an Act to codify the law relating to intestate succession among Hindus.&nbsp; &nbsp;The new Section 6 of the Act provides for parity of rights in the coparcernary property among male and female members of a joint Hindu family. The intention of the legislature has now conferred substantive right in favour of the daughters. In view of the declaration of Section 6 to the Act that the daughter shall have the said rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal and in view of the amendment therein, the daughter is entitle to a share in the ancestral property as a coparcener as if she had been a son.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space: pre;\">	</span>The language employed in Section 6 of the Amendment Act is very clear and the right accrued to a daughter in the property of a joint Hindu family governed by Mitakshara Law is absolute except in the circumstances provided in proviso to Section 6(i) of the Act. In view of the amendment to Section 6 of the Act, “partition” means any partition made by execution of a deed of partition fully registered under the Registration Act, 1908 over a partition effected by a decree of a Court.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space: pre;\">	</span>A perusal of the entire evidence on record and the pleadings put-forth by the parties would clearly indicate that the question is of very narrow compass. The Trial Court having taken note of the entire case on merits and on appreciation of evidence on record has clearly stated that the fifth defendant is a bonafide purchaser of the suit schedule property. The perusal of the recital to Exhibit D1 would clearly establish the fact that the defendants No.1 to 4 have sold the suit schedule property to meet their family necessities and also to purchase some other property, and in the instant case, particularly, though they have represented before the trial Court, the defendants No.1 to 4 have not chosen to file written statement nor have adduced any evidence before the Trial Court which would probabalise the factum that they had sold the property in favour of defendant No.5 to meet their legal necessity. The contesting parties in the suit are plaintiff and defendant No.5; and on re-appreciating the entire materials on record, I am of the considered opinion that that the fifth defendant has proved that he is a bonafide purchaser of the suit schedule property for valuable consideration. Accordingly, the trial Court has properly appreciated the entire pleadings and evidence on record and the finding recorded with regard to issue No.4 cannot be faulted with by this Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space: pre;\">	</span>The aforesaid two judgments of the Hon\'ble Supreme Court was again followed by Hon\'ble Supreme Court in the case of MANGAMMAL ALIAS HULASI AND ANOTHER v. T.B. RAJU and others reported in (2018)15 SCC 662 wherein the Hon\'ble Supreme Court, at paragraphs 16 and 20 of the judgment has held as follows:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>“ 16. It is pertinent to note here that recently, this Court in Danamma @ Suman Surpur &amp; Anr. Vs. Amar &amp; Ors, 2018 (1) Scale 657 dealt, inter-alia, with the dispute of daughter’s right in the ancestral property. In the above case, father of the daughter died in 2001, yet court permitted the daughter to claim the right in ancestral property in view of the amendment in 2005. On a perusal of the judgment and after having regard to the peculiar facts of the Danamma (supra), it is evident that the Division Bench of this Court primarily did not deal with the issue of death of the father rather it was mainly related to the question of law whether daughter who born prior to 2005 amendment would be entitled to claim a share in ancestral property or not? In such circumstances, in our view, Prakash &amp; Ors. (supra), would still hold precedent on the issue of death of coparcener for the purpose of right of daughter in ancestral property. Shortly put, only living daughters of living coparceners would be entitled to claim a share in the ancestral property.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>20.&nbsp; &nbsp;At this juncture, we would like to make it clear that any sale which made to Respondent Nos. 2 &amp; 3 in pursuance of two sale deeds dated 03.04.1996 and 24.08.1998 respectively shall not be disturbed anymore. In lieu of the same, the appellants shall be entitled to their legitimate share, if any, which belonged to them in such properties and which had been sold through sale deeds from Respondent No. 1 by way of money or some other property of the same amount.”</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>24.<span style=\"white-space: pre;\">	</span>The Division Bench of this Court in the case of ANJANAMMA AND OTHERS v. G. GOPALAPPA AND OTHERS made in RFA No.1507 of 2012 disposed of on 08th April, 2014, at paragraph 11 of the judgment has held as follows:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>“11. Section 6(1) of the Act for the first time confers status of a coparcener on a daughter and she is entitled to a right in coparcenery property as that of a son. However, the said amendment came into effect from 09.09.2005. It has been held to be retrospective in operation. But, the proviso to the said provision makes it clear that nothing contained in this subsection shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before 20th day of December 2004. The proviso is introduced in order to protect the interest of third parties who have purchased the properties from the joint family members for valuable consideration and who are bonafide purchasers. Therefore, though a daughter is conferred a right of a coparcener by birth it dates back to her date of birth, the proviso takes away that right to the extent it is provided for, that is, if prior to 20.12.2004 a joint family property or coparcenery property is alienated by coparcener or joint family members under a registered deed, such alienation is not in any way affected by the right conferred on a daughter under sub-section (1) of Section 6 of the act. In the instant case, defendant Nos.1 to 3 as coparceners have sold the schedule property in favour of defendant Nos.4 to 7 under a registered sale deed dated 23.03.1993, that is, prior to the coming into force of the amended provision. On the date the amended provision came into force there was no joint family in existence and there was no coparcenery in existence. Therefore, though the daughter is conferred right of a coparcener there cannot be any coparcenery without a property. As there was no property in the joint family on the date when Section 6 of the Act came into force the daughter has no right.”</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>25.<span style=\"white-space: pre;\">	</span>Having regard to the exposition of law made by the Hon\'ble Supreme Court as well as the Division Bench in the matters stated supra and on application of said ratio to the present case, wherein the fifth defendant has purchased the suit schedule property prior to 20th December, 2004 and as such, the alienation is made on 26th November, 2004 by the defendant No.1 to 4 herein in favour of defendant No.5 is valid and as such, the said registered deed dated 26th November, 2004 is saved under the proviso to amended Section 6 of the Act and in view of the same, the Trial Court having consciously dealt with the law relating to proviso to Section 6 of the Act, has rightly negatived the issue No.2. In that view of the matter, the judgment of the Hon\'ble Supreme Court in the case of GANDURI KOTESHWARAMMA AND ANOTHER v. CHAKIRI YANADI AND ANOTHER reported in (2011)9 SCC 788 relied upon by the learned counsel for the appellant is not applicable to the facts of the present case. Hence, I do not find any infirmity in the judgment and decree passed by the Trial Court.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space: pre;\">	</span>Appeal is dismissed.</b></font></p>', 'ad30b917bf8ddbaff9d12e24d62fba3f.JPG', '5370188ccff803b2f08f74d6b99eeb95.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-23', 1, '', '', '2023-06-23 13:35:14', '2023-06-23 13:35:14'),
(3105, 'coRFjiB0G2ke7XQ1PPLwIDh6J', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Offence under Section 78 (3) of the Karnataka Police Act is non-cognizable. Police officer cannot investigate the offence without obtaining orders from the Magistrate. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sardar Bau Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 200505 of 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This petition under Section 482 of Cr.P.C. is filed by the petitioner - accused No.1 challenging the proceeding in C.C.No.1808/2022 on the file of the Prl. Civil Judge (Jr. Dn) and JMFC, at Sandhanur Dist: Raichur, for the offence punishable under Section 78(3) of the Karnataka Police Act (for short \'K.P.Act\').</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"> 2.<span style=\"white-space: pre;\">	</span>The summary of the charge-sheet is that, on 27.10.2021 on receiving credible information, the raid was conducted. In the said raid, accused Nos.2 and 3 were found gambling and a sum of Rs.2,510/-, Matka Chit and one Ball Pen were recovered. In the confession statement, the accused Nos.2 and 3 stated that, they would hand-over the amount and the Matka Chit to the accused No.1, the accused No.1 was implicated in the case.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>The offence punishable under Section 78(3) of the K.P. Act is non-cognizable offence. The Section 155(2) of Cr.P.C. specifies that, the police officer shall not investigate the non-cognizable offences, without obtaining an order from the learned Magistrate concerned. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">6.<span style=\"white-space: pre;\">	</span>In the instant case, the police after registering the FIR, sent the requisition to the learned Magistrate to investigate the case, which is in violation of the mandatory provision of Section 155(2) of Cr.P.C. Even otherwise in the absence of any corroborative material, the charge-sheet filed only on the basis of statement of co-accused is impermissible, since, the said statement is inadmissible in law. Hence, the continuation of criminal proceeding against the petitioner - accused No.1, will be an abuse of process of law.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> i)<span style=\"white-space: pre;\">	</span>The Criminal Petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9524a1c981e3dde6cef1ad46700367f1.jpeg', '7dbce26a6da223d6700a8418e5d876a4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-24', 1, '', '', '2023-06-23 15:38:37', '2023-06-24 07:07:25'),
(3107, 'lZFTmDEwQWygGF6wyqHoeUkb2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Complaint under Section 138 NI Act cannot be dismissed for default for a single non-appearance of the complainant especially when the accused failed to deposit the interim amount. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Balchandra Vs Ishwargouda<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 100249 of 2019 decided on 5 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Anil B Katti.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Complainant filed complaint under Section 200 Cr.P.C. for the offence under Section 138 of the Negotiable Instruments Act (for short \'the N.I. Act\') against accused. The trial Court by its order dated 13.12.2016 took cognizance of the offence and ordered to issue summons to accused. In response to summons, accused appeared through counsel on 04.09.2018 by advancing the matter and he was released on bail. On 17.01.2019, trial Court after recording substance of accusation directed respondent/accused to deposit 20% of the cheque amount, since he wanted to contest the claim of compensation. The matter was adjourned on 16.02.2019 and 04.04.2019. On those two days, there was no compliance by accused in depositing 50% of the cheque amount. The trial Court on 24.05.2019 by noting the absence of complainant and his counsel, dismissed the case for non-prosecution.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>The dismissal of complaint for non-prosecution is governed under Section 256 of Cr.P.C. Learned counsel for respondent submits that no grounds have been made out by the complainant for not adducing evidence by availing the opportunity given by trial Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">5.<span style=\"white-space: pre;\">	</span>When once the proceedings takes place in terms of Section 138 of the N.I.Act and triable as summons case, then the procedure contemplated in terms of Chapter XX of Criminal Procedure Code from Sections 251 to 259 has to be followed. Whether the absence of complainant before trial Court on two occasions who was represented by counsel can be termed as a person not interested in prosecuting the case.?</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>In this context of the matter, it is useful to refer to the judgment of Hon\'ble Apex Court in ASSOCIATED CEMENT COMPANY VS. KESHAVANAND [(1998) 1 SCC 687], wherein it has been observed and held that:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>\"The proviso 256 of Cr.P.C., though affords some deterrence against dilatory tactics on the part of the complainant, who set the law into motion through his complaint, but at the same time, it does not mean that if the complainant is absent, the Court has duty to acquit the accused. It has been further held in the said judgment that the discretion under Section 256 of Cr.P.C., must be exercised judicially and fairly without impairing the cause of administration of criminal justice. \"</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>In the present case, the complainant has initiated proceedings under Section 138 of the N.I.Act.&nbsp; &nbsp;The trial Court on being prima facie satisfied took cognizance of the offence by order dated 13.12.2016. The accused who appeared before the trial Court on 17.01.2019 has not complied the order of trial Court dated 17.01.2019 in depositing 20% of the cheque amount. However, the trial Court only by noting the presence of accused on two occasions and absence of complainant proceeded to dismiss the complaint for non-prosecution. The trial Court did not take notice of non-compliance of its own order dated 17.01.2019.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>The Hon\'ble Apex Court in AZEEM VS. VENKATESH AND ANOTHER [(2002) 7 SCC 726] has considered dismissal of complaint on account of one singular default in appearance on the part of the complainant as a very strict and unjust attitude resulting in failure of justice.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">9.<span style=\"white-space: pre;\">	</span>In the present case, noting absence of complainant and counsel on two occasions proceeded to dismiss the complaint for non-prosecution. Therefore, in view of the facts and circumstances as referred above, it cannot be said that complainant is a person not interested in prosecuting the case. Therefore, the order of trial Court dated 24.05.2019 in dismissing the complaint for non-prosecution cannot be legally sustained and the same requires to be interfered by this Court.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\" style=\"\"><b>Appeal filed by the appellant/complainant is hereby allowed.</b></font></span></p>', '79768682122bfcdf371885c893c2be29.jpeg', '6b33dcf14c4a34ff97afa69b53c7a56a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-26', 1, '', '', '2023-06-26 11:55:48', '2023-06-26 08:08:07');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3108, 'u122zBeefiwhpnTrOzStEa55K', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Insecticide Act. Non impleading the company who manufactured the pesticides vitiates criminal prosecution. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Satyendra Nagwekar Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 100487 of 2023 decided on 5 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V Srishananda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Brief facts of the case are as under:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3.1.<span style=\"white-space: pre;\">	</span>Petitioner is shown as accused No.2 in respect of a crime punishable under Section 29 of Insecticide Act based on the report given by the Assistant Director of Agriculture Koppal.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">3.2.<span style=\"white-space: pre;\">	</span>Based on the credible information he had conducted a raid&nbsp; and&nbsp; collected samples from the shop namely ‘Amino Gold Plus’ dealing with pesticides and&nbsp; other&nbsp; agriculture&nbsp; items.&nbsp; The samples were sent to the&nbsp; laboratory&nbsp; and&nbsp; the samples find out to&nbsp; be spurious&nbsp; in nature&nbsp; and report thereof shown which is not conducive to the required presence of the pesticides, resulted in launching a criminal prosecution against the petitioner and another accused. Learned Magistrate took cognizance and same is under question before this Court by second accused.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>Admittedly, the prosecution&nbsp; did not comply the statutory requirement in arraigning the company which manufactured&nbsp; the&nbsp; pesticides.&nbsp; In this regard, Section 10 of&nbsp; Essential&nbsp; Commodities Act, 1968 reads as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>“10. Offences by companies:-</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>(1)<span style=\"white-space: pre;\">	</span>If the person contravening an order made under section 3 is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\"><i>(2)<span style=\"white-space: pre;\">	</span>Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.\"</i></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>Shri. Sandesh Chouta, Learned Senior Counsel for&nbsp; the&nbsp; petitioner&nbsp; submitted that provisions of Section 33 of&nbsp; Insecticide Act,&nbsp; is&nbsp; akin to Section 10 of Essential Commodities Act and therefore, in respect of an&nbsp; offence&nbsp; said&nbsp; to&nbsp; have been committed by a company, in the absence of company being arraigned as a party accused, proceedings initiated by the&nbsp; prosecution&nbsp; only against in its individual capacity is impermissible.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>In order to appreciate the same, it is necessary to call out Section 33 of Insecticide Act, which reads as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>“ 33. Offences by companies.— (1) Whenever an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, or was responsible to the company for the conduct of the business of, the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>Provided that nothing contained in this sub- section shall render any such person liable to any punishment under this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\"><i>(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.\"</i></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>On perusal of the same, there is sufficient force in the arguments put forth on behalf of the petitioner.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>This Court in the case of Mallikarjun S/o. Girimallappa Shegunashi Vs. The State of Karnataka passed in Criminal Petition No. 101933/2022 dated 20. 07.2022 has&nbsp; clearly held that such prosecution cannot be proceeded further in the absence of company being arraigned as additional accused.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">13.<span style=\"white-space: pre;\">	</span>Accordingly, the criminal prosecution with regard to the petitioner/accused herein cannot be allowed to be continued as it results in abuse of process of law.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>Criminal petition is allowed.</b></font></span></p>', '395f61f1fafdd3a1b68eac126ca24483.jpeg', '1f3a9fc2ef86e4183f435d9fda14212d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-26', 1, '', '', '2023-06-26 11:57:04', '2023-06-26 11:57:04'),
(3106, '9NyV72mtQQgVSwwAjcUSGRhDg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law (Amendment) Acts and Ordinances, 1944. Order of interim attachment of property can be passed only after issuance of notice of the application. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sangappa Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 100495 of 2022 decided on 6 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Anil B Katti.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The factual matrix leading to case of prosecution can be stated in nutshell to the effect that investigating officer filed application under Section 3(1) of the Ordinances for attachment of properties on the allegation that accused and his wife have acquired properties disproportionate to known source of income of accused. The Notice of said application was given only to accused, who filed objections. The trial Court after hearing both sides proceeded to pass order dated 6.8.2022 and allowed the application filed by investigating officer under Section 3(1) of the Ordinances and ad-interim order is passed attaching the properties of accused and his wife shown in the schedule.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>Accused challenged ad-interim attachment order passed in terms of Section 4 of the Ordinances by filing appeal No.100499/2022 and his wife challenged the said order by filing Crl.A.No.100495/2022. It is contended by appellants in both the cases that order passed by the trial Court is not in conformity with the procedure contemplated for attachment of properties in terms of Sections 3 and 4 of the Ordinances. The wife of accused has contended that notice of the application filed under Section 3(1) of the Ordinances by investigating officer has not been issued and no opportunity of being heard was given to her before making interim attachment order in terms of Section 4 of the Ordinances.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>It is not in dispute that on the basis of application field by investigating officer in terms of Section 3(1) of the Ordinances, notice was given only to accused, who filed objections. The trial Court after hearing both sides proceeded to pass order dated 6.8.2022 and allowed the application filed by investigating officer under Section 3(1) of the Ordinances by ordering ad-interim order for attachment of properties as shown in the schedule pertaining to accused and that of his wife in terms of Section 4 of the Ordinances.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>On going through Section 3 of the Ordinances, where application for attachment of the property is sought by the State, the provision of order XXVII of CPC for attachment of properties under this ordinances has to be applied in terms of Section 3(2) of the ordinances.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>In terms of Section 4 (2) of the ordinances, at the same time as he passes an order under sub-section (1), the District Judge shall issue to the person whose money or other properties is being attached, a notice, accompanied by copies of the order, the application and affidavits and of the evidence, if any, recorded, calling upon him to show cause on a date to be specified in the notice why the order of attachment should not be made absolute. On conjoint reading of Section 3(1) to 3(3) and 4(1) of Ordinances, it would go to show that no enquiry is contemplated before passing order in terms of Section 4(1) of Ordinances. The examination of the person or persons making the affidavits accompanying the application is discretionary. If in terms of Section 4(1) of the Ordinances order is passed then show cause notice has to be issued as contemplated in terms of Section 4(2) of the Ordinances.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space: pre;\">	</span>In terms of Sub Section (3) of Section 4 of the ordinances, the District Judge shall also issue notices, accompanied by copies of the documents accompanying the notice under sub-section (2), to all persons represented to him as having or being likely to claim, any interest or title in the properties of the person to whom notice is issued under the said sub-section calling upon each such person to appear on the same date as specified in the notice under the said sub- section and make objection if he so desires to the attachment of the properties or any portion thereof on the ground that he has an interest in such properties or portion thereof.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space: pre;\">	</span>In terms of Section 4(4) of the Ordinances, any person claiming an interest in the attached property or any portion thereof may, notwithstanding that no notice has been served upon him under this section, make an objection as aforesaid to the District Judge at any time before an order is passed under sub-section (1) or sub-section (3), as the case may be, of section 5. If upon such notice, any objection is filed then the same has to be determined in terms of Section 5 of the ordinances.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space: pre;\">	</span>In the present case, indisputably no any notice of the application filed by investigating officer in terms of Section 3(1) of the Ordinances was given to the wife of accused, who is appellant in Crl.A.No.100495/2022 before passing the order in terms of Section 4 of the Ordinances.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space: pre;\">	</span>The purpose of investigating officer invoking Section 3(1) of the Ordinances is to preserve the property or value of the property to recover the same from accused to which he is held to be liable to answer. In order to avoid unnecessary delay, not withstanding the technicalities to dispose of the application filed by investigating officer at an earliest with liberty to file objections after compliance of Section 4 of the Ordinances and to decide in terms of Section 5 of the Ordinances is ordered will meet the ends of justice. Therefore, to that extent interference of this Court is required for giving reasonable opportunity to the appellants before passing the order in terms of Section 5 of the ordinances.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>Appeal filed by accused in Crl.A.No.100499/2022 and appeal filed by wife of accused in Crl.A.No.100495/2022 are hereby allowed.</b></font></span></p>', 'fd321cf7717eda66d00c0b4b9dde30e3.jpeg', 'ba8689be82b2cef279b818efabde820c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-26', 1, '', '', '2023-06-26 08:55:02', '2023-06-26 08:55:02'),
(3110, '6hF6iROyju8TkYh7k5DLfVSAY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. Though due to passage of time and memory loss, witnesses deviate from their Police Statements, but when such discrepancies make the foundation of the prosecution case shaky, the Court has to take strict note thereof. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pushpesh and others Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.A. 879 of 2016 decided on 21 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Somashekar and Justice Rajesh Rai K.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. Criminal Appeal 879/2016 by the convicted accused Nos.1 to 3 is directed against the judgment of conviction and order of sentence passed in SC No.50/2014 dated 30.03.2016 by the I Additional District and Sessions Judge, wherein accused Nos.1 to 3 sentenced to undergo simple imprisonment for life and to pay a fine of Rs.10,000/- each for the offence punishable under Section 302 read with Section 34 IPC. Further, they sentenced to undergo simple imprisonment for a period of five years and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for a period of six months for the offence punishable under Section 109 read with Section 34 IPC. Further, sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for a period of six months for the offence punishable under Section 120B read with Section 34 IPC and also sentenced to undergo simple imprisonment for a period of one month and to pay fine of Rs.500/- in default, to undergo imprisonment for one month for the offence punishable under Section 34 of IPC.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. The brief facts of the prosecution case in these appeals are as under:<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>On 17.04.2014, at about 3.55 p.m. within the limits of Virajpet Town Police Station, in Navanagara, Perumbadi of Arji Village, due to ill-will between the deceased in this case, one Nousheer and accused No.1 i.e. appellant No.1-Pushpesh, accused Nos.1 to 3 with a common intention of committing the murder of the deceased went in Kharishma Motor vehicle bearing Regn.No.KA 45/R-5333 and while the deceased Nousheer was going to his house, accused Nos.1 and 2 restrained him near the house of CW.6-Raman and assaulted the deceased on his head, face, neck, shoulder and both hands with sickle causing grievous injuries to him and thereby, committed his murder. Accused No.3 facilitated accused Nos.1 and 2 to commit the murder of the deceased-Nousheer by giving information to accused Nos.1 and 2 about the movements of the deceased. Hence, PW.23, one of the relatives of the deceased lodged the complaint before the respondent-Nagara Police Station, Virajpet, Madiker, as per Ex.P.43, against accused Nos.1, 2 and one Sampath and Ramesh. The same has been registered in Crime No.52/2014 dated 17.04.2014 by the said Police against accused Nos.1, 2 and one Sampath and Vinay for the offences punishable under Sections 302, 114, 120B read with Section 34 of IPC as per Ex.P.42 by PW.28, the then PSI of Nagara Police, Virajpet. Thereafter, submitted the FIR to the jurisdictional Magistrate. Subsequently, the said Police during the course of investigation, recorded the statements of the PWs.22 and 23, the relatives of the deceased and visited the scene of occurrence, drew up spot mahazar, apprehend the accused and after collecting necessary document and other evidence, laid the charge sheet against these appellants i.e. accused Nos.1 to 3 for the offence punishable under Sections 109, 120B, 341, 302, read with 34 of IPC.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. In the facts and circumstances of the case and in the light of the submissions made on both the sides, the points that would arise for our consideration are:<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i) Whether the Judgment under the appeal suffers from any perversity or illegality warranting interference by this Court?<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> ii) Whether the learned Sessions Judge is justified in convicting the appellants/accused Nos.1 to 3 for the offence punishable under Sections 109, 120-B, 341, 302 read with Section 34 of IPC?<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>iii) Whether the learned Sessions Judge erred by not convicting the accused for the offence punishable under sections 5 r/w Section 27(1) of Arms Act 1959 r/w Section 34 of IPC ?<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. In the circumstance, though the prosecution proved the homicidal death of the deceased beyond reasonable doubt, but by perusal of the evidence of the eye-witnesses and other circumstantial evidence examined by the prosecution, we are of the opinion that the prosecution failed to connect the accused for the homicidal death of deceased. Admittedly, there is a six hours delay in transmitting the F.I.R from the Police Station to the jurisdictional Magistrate. That view of the matter has to be taken into consideration along with the complaint lodged by PW.23 as per Ex.P43 wherein the said complaint lodged against accused Nos.1 and 2 and Sampath and one Ramesh. But strangely the F.I.R registered against accused Nos.1 and 2, the said Sampath and one Vinay. Further, at the time of filing charge sheet, the respondent-Police even dropped the name of said Sampath and implicated accused No.3 in the offence. By perusal of entire materials and evidence on record, there is no such evidence deposed by the witnesses against Accused No.3. Mere presence of the accused No.3 in the scene of offence on the date of incident, itself not sufficient to either implicate him in the crime or to convict him. Though PW.23, the complainant is said to be an eye-witness to the incident, but he turned hostile to that effect. Moreover, the complaint is lodged by PW.30, one K.V.Sunil, i.e., the practicing advocate at Virajpet Court and the said witness used to defend the complainant\'s case. Hence, as rightly contended by the learned senior counsels, at the inception of the prosecution case itself, i.e., lodging of complaint and transmitting of F.I.R, creates doubt in the prosecution case. The Hon\'ble Apex Court in the case of STATE OF RAJASTHAN vs. TEJA SINGH AND OTHERS relied by the learned senior counsel, held that, the delay in the F.I.R reaching the Court has to be viewed seriously because requirement of law is that the F.I.R should reach the Magistrate concerned without any undue delay. Moreover, in the case on hand, the prosecution totally failed to explain the said inordinate delay of six hours in transmitting the F.I.R from the Police Station to the jurisdictional Magistrate.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. As far as the evidence of eye-witnesses-PW.22 and PW.24 are concerned, as discussed supra, there are much contradictions in their evidence. They being well acquainted with the father of the deceased and interested witness, their evidence has to be considered in greater care and caution. The Hon’ble Apex Court time and again held in catena of judgments that, the vital discrepancies and inconsistencies in the evidence of material witnesses has to be appreciated with greater care. It is a sound and well established rule of law that the Court is concerned with quality and not with quantity of the evidence necessary for proving or disproving a fact. The Court has to weigh carefully the testimony of the witnesses and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony opened to suspicion, then only the evidence has to taken into consider while convicting the accused. In the Case on hand the Trial Court has failed to appreciate the evidence carefully. The Trial Court passed the cryptic judgment without appreciating the evidence and materials available on record. Our view is fortified by the judgment rendered by the Hon’ble Apex Court in Vadivelu Thevar vs. State of Madras (1957 SCR 981).<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34. The golden thread which runs through the web of administration of justice in criminal cases is that, if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused persons and the other to their innocence, the view which is favourable to the accused persons should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice should be prevented. A miscarriage of justice which may arise from acquittal of the guilty is not less than the conviction of an innocent. Our view is fortified by the dictum of the Hon’ble Supreme Court in the Case Lakshman V/s State of Maharashtra reported in AIR 2002 SC 2973 and the same is reconsidered by the Hon’ble Apex Court in its latest judgment in the case of Purushottam Chopra and another vs. State (Govt of NCT, Delhi) reported in AIR 2020 SC 476.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 35. The Learned Sessions Judge has ignored number of reasonable doubts which legitimately arose on the evidence lead by the prosecution and its conduct in suppressing the material witness which clearly indicate that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt. The inconsistency of lodging the complaint against 4 persons, subsequently registering the case against 3 persons and finally at the time of filing charge sheet dropping the accused No.3 and implicating the present accused No.3 and the preparing of complaint by an Advocate known to PW.23 and the delay in transmitting the F.I.R to the Jurisdictional Magistrate, creates doubt in the prosecution case at its inception itself. So also the contradictions in the evidence of eye-witnesses and other recovery mahazar witnesses also creates doubt in the mind of this Court about the veracity of those witnesses. Hence, the benefit of doubt has to be given to the accused persons. In that view of the matter, we are of the considered opinion that the Prosecution failed to prove the charges leveled against the accused beyond reasonable doubt and accordingly, we answer the above points which raised for consideration and proceed to pass the following:<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p><b> </b></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>i.   The Criminal Appeal No.879/2016 filed by the appellants / accused Nos.1 to 3 is hereby allowed.</b></font></p>', '2c864b0cfac75bb3cf20c6b81f206f1b.jpeg', 'd650e97e7c41a2aa1de59cf1b61c79be.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-27', 1, '', '', '2023-06-26 12:24:26', '2023-06-27 06:34:39'),
(3111, 'iD95E3MUNh1cSQbc6XJgiyG2T', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit by purchaser of property during pendency of civil suit, seeking declaration that the decree passed in the suit is not binding on him, is not maintainable and the plaint is liable to be rejected. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>N. Varalakshmi Vs V.R. Shivananda Murthy and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision 250 of 2022 decided on 23 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This revision petition is filed challenging the rejection order dated 02.06.2022 on I.A.No.2 filed under Order VII Rule 11(d) read with Section 151 of CPC passed in O.S.No.671/2020 on the file of XXVIII Addl. City Civil Judge, Mayo Hall Unit, Bengaluru.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2.         The factual matrix of the case of the plaintiff before the Trial Court is that the plaintiff/respondent No.1 herein has filed a suit for the relief of declaration to declare that the plaintiff is the absolute owner in lawful possession and enjoyment of the suit schedule property and to declare that the preliminary decree passed by this Court in R.F.A.No.2331/2007 dated 14.07.2017 and the order and draft final decree drawn by the XXVIII Addl. City Civil Judge, Mayo Hall Unit (CCH-29), Bengaluru, dated 06.02.2019 in FDP No.25017/2017 is not binding on the plaintiff or affecting the suit schedule property and also consequential relief of permanent injunction.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5.         The Trial Court having considered both the applications filed by defendant No.1 and defendant No.2, came to the conclusion that the defendant No.1 in the affidavit not stated under which law the suit is barred by law and no specific pleading in the application. The observation is made that looking at the provision of Order VII Rule 11 of CPC, which indicates that the plaint can be rejected only under certain circumstances. Defendant No.1 has not specifically pleaded under which law the suit is barred by law. The applications are silent as to under which the law the suit is barred.   Apart from that, even in the oral submission also the defendants failed to highlight which is the law bars this suit. With regard to the other ground raised by defendant No.2 came to the conclusion that it is the settled principle of law that the valuation made and Court Fee paid is the mixed question of law and fact cannot be considered as a preliminary issue. Hence, rejected the same and the present revision petition is filed by defendant No.1.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14.       Having heard the respective counsel and the grounds urged in the revision petition as well as the oral submissions, the points that would arise for the consideration of this Court are:<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(1)        Whether the Trial Court has committed an error in not allowing the application filed under Order VII Rule 11(d) read with Section 151 of CPC and whether the said order suffers from its legality and correctness?<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(2)        What order?<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Point No.1:<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15.       Having heard the respective counsel and also on perusal of the material available on record, particularly, it is settled law that the Court has to look into the contents of the plaint while invoking Order VII Rule 11 of CPC and it cannot look into the defense. Having perused the application invokes Order VII Rule 11(d) read with Section 151 of CPC contending that the plaint may be rejected as barred by law. It is pleaded that in the suit in O.S.No.10024/1998, an undertaking was given by the vendor of the plaintiff, he will not alienate the same and the said undertaking was given on 30.05.1998. It is also important to note that the suit was decreed partly on 31.07.2017 and an appeal was filed. During the pendency of R.F.A, the plaintiff has purchased the suit schedule property. In R.F.A., granted 1/4th share and consequently FDP was also drawn and the possession was given to the extent of 425 sq.ft in favour of the defendant. It is also the claim of the defendant in the application that the purchase was made during the pendency of the appeal and it attracts Section 52 of the Transfer of Property Act. No doubt, on perusal of the affidavit not stated the very proviso under which the suit is barred. But it is contended that the transaction taken place between the plaintiff and his vendor during the pendency of the proceedings and the same is subject to the result of the suit. Hence, the Sale Deed has no validity in the eye of law and he is not entitled to get any relief in the suit. Hence, the suit is barred by law; the same is also resisted by filing an objection. Hence, the Court has to take note of the material on record, particularly, the plaint. It has to be noted that in the plaint it is stated that he had purchased the property based on the decree obtained by his vendor in O.S.No.363/1997. He contended that he has purchased the same for valuable consideration of Rs.10,43,000/-. It is important to note that the portion of the property which he had purchased was also acquired and he has received the compensation and also admits the transaction between the plaintiff and defendants and he claims that it was only a loan transaction and not rental agreement. He made the payment of Rs.3 Lakhs in paragraph No.8. On the other hand, it is the contention of the defendant that he had entered into a lease agreement and agreed to pay a rent of Rs.30,000/- per month and also paid the advance amount of Rs.3 Lakhs and the remaining Rs.2 Lakhs to be paid. In paragraph No.9, specifically it is pleaded that defendant Nos.1 and 2 falsely claimed that they have right over the portion of the suit schedule property in terms of the judgment and decree and the possession has been delivered in the Execution petition. The fact that the plaintiff is also a party in the execution petition is not in dispute and thereafter the suit is filed for the relief of declaration and it has to be noted that there was a decree in the year 2007 itself in favour of the defendant in earlier suit. The appeal was pending before this Court while purchasing and the appeal was also allowed and granted 1/4th share in R.F.A. Consequently, the FDP was filed and a Commissioner was appointed and the final decree was also drawn. Consequently, the possession was taken in the execution petition. When such being the case, the very contention of the respondents is that the Court has to look into the only plaint averments and having taken note of the material on record in the very pleading, the plaintiff in paragraph Nos.9 and 10 pleaded with regard to an appeal and also the FDP proceedings. It is also his claim that he had purchased the property in the year 2010 and it is to be noted that the very suit of the year has not been mentioned in the plaint and cleverly drafted the plaint only mentions the R.F.A. and FDP proceedings. In paragraph Nos.9 and 10, they have not pleaded the original suit was of the year 1997 and also it is clear that in the year 1998 itself, the vendor of the plaintiff has given an undertaking that he will not alienate the property.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17.       The Apex Court in P.V. Guru Raj Reddy’s case (supra), categorically held that while dealing with Order VII Rule 11 of CPC, the Court has to look into the averments of the plaint. In the plaint, it is only pleaded with regard to R.F.A. as well as FDP proceedings and the Court is required to see the averments of the plaint.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 18.      The Apex Court in Sarvinder Singh’s case (supra), discussed in paragraph No.6 with regard to Section 52 of the Transfer of Property Act and categorically held that the alienation obviously would be hit by doctrine of lis pendens by operation of Section 52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit. Hence, the plaintiff need not be a necessary party and the same is binding since his venders are parties in all the proceedings.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 19.      In the case on hand, the vendors are the parties and also given an undertaking even though they sells the property after the decree, Section 52 attracts and the Apex Court in Guruswamy Nadar’s case (supra), in paragraph No.13, the Apex Court held that, as a public policy once a suit has been filed pertaining to any subject-matter of the property, in order to put an end to such kind of litigation, the principle of lis pendens has been evolved so that the litigation may finally terminate without intervention of a third party. This is because of public policy otherwise no litigation will come to an end. Therefore, in order to discourage that same subject-matter of property, being subjected to subsequent sale to a third person, this kind of transaction is to be checked. Otherwise, litigation will never come to an end. The principles laid down in the judgment aptly applicable to the case on hand since there was an undertaking by the vendor of the plaintiff and also there was a decree prior to the execution of the Sale Deed, the Sale Deed was executed when the appeal was pending before this Court and the same cannot create any right in favour of the plaintiff. Hence, there is no cause of action to file a suit as well as the litigation will never come to an end if proceeded to take up the suit, which is hit by Section 52 of the Transfer of Property Act.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20.       This Court in Smt. Mallamma’s case (supra), having discussed in detail the very provisions of Order VII Rule 11 (a) to (d) read with Section 151 of CPC in paragraph No.12 held that the Court has to be vigilant against any camouflage or suppression and is under an obligation to ascertain whether a litigation is utterly vexatious or is an abuse of process of the Court. The Court should be cautious while considering the material on record.   Admittedly, in the case on hand, the suit was decreed and there was an undertaking and during the pendency of R.F.A., the property was purchased. Now, sought for the relief of declaration to declare that the preliminary decree obtained is not binding on the plaintiff or affecting the suit schedule property and when the same was purchased during the pendency of the appeal, it cannot be contended that the order passed by this Court as well as in FDP cannot be held that it is not binding and in the judgment of the Apex Court referred supra, held that the alienation obviously would be hit by doctrine of lis pendens by operation of Section 52 as held in Sarvinder Singh’s case (supra). When such being the case, there are no triable issues between the parties. Admittedly, the vendor of the plaintiff is a party to the earlier suit and R.F.A. and he has suffered the decree. When such being the material on record, the question of once again agitating the issue in respect of the very subject matter of the property, which is a portion of the property, suffered by the vendor of the plaintiff, who is bound by the judgment and decree passed against his vendor and there cannot be new grounds arise to him once again to litigate the same as held by the Apex Court in P.V. Guru Raj Reddy’s case (supra), and no fresh cause of action arises to decide the issue which has already been decided and also the plaint averments exfacie discloses earlier there was a suit and there was a decree and the same was challenged in R.F.A. In R.F.A., this Court granted 1/4th share and final decree was also drawn and his vendor has suffered the decree throughout and on a reading, the suit appears to be barred by law under Section 52 of the Transfer of Property Act and the same cannot be adjudicated in the Court once again. Hence, the order impugned passed by the Trial Court is liable to be set aside since the order suffers from its legality and correctness. Hence, I answer the point as ‘affirmative’.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Point No.2:<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i)         The Civil Revision Petition is allowed.</b><o:p></o:p></span></p>', '83298b1e1bf399720661ff6581e9f1ac.JPG', '8e77cc53e4dfdacb7637f75fd312e173.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-27', 1, '', '', '2023-06-26 12:26:16', '2023-06-27 03:22:16');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3112, 'RSed4hOxmUSjQoGlU6kNKxgL8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Plaintiff not signing every page of the plaint is not a ground to reject the plaint when the verification column is duly signed by the plaintiff. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>G.S. Mahendra and others Vs Komala.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 339 of 2023 decided on 23 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The factual matrix of the case of the plaintiff before the Trial Court is that the defendants have obtained the document of release deed by misrepresentation and fraud. Hence, sought for the relief of cancellation of registered release deed dated 01.07.2019 as well as other reliefs. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The defendants appeared and filed an application under Order VII Rule 11 read with Section 151 of CPC praying the Court to reject the plaint as there is no cause of action, Court fee paid is insufficient and plaint being not verified and not filed in accordance with law. In support of this application, an affidavit is sworn to by defendant No.1 contending that the plaintiff is his younger sister who is currently in Bengaluru and no proper verification of the plaint since it reflects that she has signed the plaint in Australia but it is filed at Bengaluru and verifying affidavit is also deposed at Australia and not at Bengaluru which is irregular, illegal and not in accordance with law. It is also further sworn to that since she had already received adequate financial assistance while constructing residence at Shivamogga by her brothers and her brothers had supported her financially while her husband was medically suffering Parkinsons and Alzeimers. It is also sworn to that the averments of the plaint are false and no power is given to the GPA holder to institute the suit.   It is also sworn to that the Court fee paid in a sum of Rs.25/- is improper for cancellation of document is sought and ought to have been paid on the market value of each property since there is no valuation of each property hence, the plaint is liable to be rejected and described the item Nos.1 to 6 in paragraph 9 and contended that suit ought to have been valued for the purpose of Court fee under Section 38 of Karnataka Court Fees and Suit Valuation Act hence, the plaint is liable to be rejected.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 4.<span style=\"white-space: pre;\">	</span>The respondent/plaintiff resisted this application by filing the objection statement contending that the document was signed in Australia as the plaintiff and her son who is a GPA holder were in Australia when the cause of action arose and were not in a position to travel back to India due to several travel restrictions in Australia. The precaution was taken to ensure that the verification was done and the documents were properly executed. Hence, the very contention that no authorization to file the suit cannot be accepted when there is a proper verification. It is also contended that in the plaint there is clear cause of action is mentioned as it was arose on 29.09.2021 and in the plaint it is specifically pleaded with regard to the cause of action and narrated with regard to the misrepresentation and fraudulently obtained the document dated 01.07.2019 hence, sought for an appropriate order. It is also contended that no consideration was shown in the document and the plaintiff has sought for cancellation as the document as the same is void and not binding on her and hence, consideration is not shown in the document. When the document is a fraudulent one and void document, the question of paying the Court fee does not arise. Hence, the contention of the counsel for the defendants that not paid the proper Court fee cannot be accepted and Section 38 of the Act will not attract.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space:pre\">	</span>Being aggrieved by this order, the present revision petition is filed before this Court. The counsel for the petitioners would vehemently contend that Order VII Rule 11 of CPC is provided that the Court can itself look the prayer sought and the documents provided to ascertain the maintainability of the suit. On prima facie reading of the plaint itself manifests that suit was not maintainable. The counsel also would vehemently contend that since there were no signature found on each page of the pleading and signature was found only on the last page, it was as if there was no plaint filed and plaint ought to have rejected. The counsel would vehemently contend that verifying affidavit was sworn to before the notary opposed to Notaries Act and the same could not be considered as being sworn to in India contrary to Notaries Act and same is a defective verifying affidavit. Hence, on that ground also, the plaint ought to have been rejected. The counsel also would vehemently contend that only nominal Court fee was paid without valuing the property and when there is deliberate undervaluation of the plaint, the same is liable to be rejected.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>20.<span style=\"white-space:pre\">	</span>Having heard the learned counsel appearing for the respective parties, considering the material facts and the principles laid down in the judgments referred supra, the point that would arise for the consideration of this Court that: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(1)<span style=\"white-space:pre\">	</span>Whether the Trial Court has committed an error in dismissing the application filed under Order VII Rule 11 of CPC and whether the said order suffers from its legality and correctness? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>(2)<span style=\"white-space:pre\">	</span>What order?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Point No.1: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space:pre\">	</span>Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record particularly the plaint averments, wherein the specific averment is made that she has got 1/6th share in the suit schedule properties and the document of release deed was obtained by misrepresentation and fraudulently when her husband was not keeping well, she was taken to the Sub-Registrar office stating that she has to sign the document as a witness and obtained the document. The issue between the parties is with regard to the misrepresentation and fraudulent act is concerned, hence, the matter requires to be tried before the Trial Court to prove that whether there is misrepresentation and fraudulent act in taking the signature. No doubt, the relief is sought for the cancellation of the release deed. As rightly pointed out by the counsel for the respondent that on perusal of the document which is produced before this Court by the revision petitioners, that is, release deed, nowhere the document discloses any consideration and on perusal of this document it shows that no consideration is mentioned in the document and hence, the judgment relied upon by the respondent counsel is with regard to the valuation and payment of Court fee is concerned is aptly applicable to the case on hand.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space:pre\">	</span>The other contention that there is no cause of action. To substantiate the same, the counsel relied upon the judgment of Apex Court in the case of H D VASHISHTA referred supra and the same is in respect of Order VI Rule 2 - material facts constituting cause of action not averred in plaint. The counsel also relied upon the judgment in the case of SWAMY ATMANANDA referred supra with regard to Order II Rule 2 cause of action is bundle of facts which taken with law applicable to them and also relied upon the judgment of this Court in CANARA BANK’S case wherein also discussed with regard to the cause of action is a bundle of facts. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24.<span style=\"white-space:pre\">	</span>In keeping the principles laid down in the judgments and also looking into the averments of the plaint, the plaintiff specifically pleaded with regard to under what circumstances, the document was taken. In paragraph 6 as well as in 9 narrated the facts and also stated cause of action when it was arose i.e., on 01.09.2021 when the plaintiff was informed by the relatives about the said document and when she obtained the document of certified copy of the release deed on 01.07.2011 and the Trial Court also rightly comes to the conclusion that Court has to look into the averments of the plaint while taking note of the cause of action and rightly comes to the conclusion that cause of action also stated in the plaint and the Court has to see only the plaint averments and the same is also a settled position of law and the Court has to look into only the averments of the plaint whether it constitutes cause of action or not and not the defence. The judgments relied upon by the counsel for the petitioners not applicable to the case on hand when the cause of action has been narrated in the plaint itself. The other contention of the counsel for the petitioners is that by producing the document of Power of Attorney, no power is given to file a suit under GPA and the same also cannot be accepted when the Trial Court also taken note of Clause 16 of the GPA where it is mentioned to cancel any deed pertaining to the mentioned properties executed by her at the misguidance of her brothers. The case of the plaintiff that by misrepresentation only her brothers have obtained the said document and hence, the said contention is a matter of trial. The other contention is that the plaint is not signed by each page. No doubt, on perusal of the plaint, each page has not been signed. But the plaint has been signed including verification hence, the contention that not signed each page cannot be a ground to dismiss the plaint at the threshold. Hence, I do not find any merit in the revision petition and the order passed by the Trial Court will not suffers from any legality and correctness and the matter has to be adjudicated and it requires a trial. Hence, I answer point No.1 as negative.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Point No.2:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The revision petition is dismissed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ece095fbb830dc1d50874d2ef2842cfb.JPG', '1b419ff4cf3084a689bfb6a2a21ab3cc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-27', 1, '', '', '2023-06-26 13:16:17', '2023-06-27 10:18:02'),
(3114, 'zMKgxUUDAEuzhT7J8iWRVYEAA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Spare the rod and spoil the child” has metamorphosed into “Spare the rod and teach the child”. Karnataka High Court refuses to quash proceedings against school management for abetting suicide of student. ', '<p>DATED THIS THE 26TH DAY OF JUNE, 2023\r\nBEFORE\r\nTHE HON\'BLE MR. JUSTICE M. NAGAPRASANNA\r\nCRIMINAL PETITION No.4725 OF 2023\r\nBETWEEN:\r\n1 . MRS.GAURAMMA and others vs&nbsp;STATE OF KARNATAKA and others.&nbsp;<br></p><p>The private complaint reveals several aspects, inter alia. The\r\nschool had indicated that the boy had been treated in Sigma\r\nHospital in Mysore for his ailment which has led to commission of\r\nsuicide. The parents write to Sigma Hospital and the hospital\r\nreplies that a patient by name Nihal Biddappa had never entered\r\nthe hospital either as an in-patient or an out-patient. Therefore,\r\neven the said ruse projected by the school tumbles down. Based\r\nupon the aforesaid minute narration of events in the private\r\ncomplaint, the learned Magistrate refers the matter for\r\ninvestigation.</p><p>16. The aftermath of the investigation is again quite shocking.\r\nThe Police file a ‘B’ report in the teeth of the aforesaid facts.\r\nTherefore, this Court summoned complete documents that led to\r\nfiling of ‘B’ report. Perusal of the file contains statements of several\r\nstudents taken, who were nowhere in the picture, when all the\r\nincidents had happened. All the witnesses/students in unison, paint\r\nthe boy black. One Kishan who was the reason behind the entire\r\nepisode also gives his statement painting the boy black. Based\r\nupon this, Police file a ‘B’ report. On filing of ‘B’ report when the\r\nparents are notified, they register a protest. On registering the\r\nprotest, the learned Magistrate in terms of the impugned order,\r\nrejects the ‘B’ report and takes cognizance and posts the matter for\r\nrecording of sworn statement.</p><p>The learned Magistrate rejects the ‘B’ report taking note of several\r\nlacunae in the investigation by the Investigating Officer. The\r\nreasons, inter alia, rendered by the learned Magistrate are that the\r\nboy was chosen for punishment but the other student Kishan who\r\nwas the reason behind is not chosen for any punishment. It is then\r\nthe boy gets anxious and sought that he has been chosen for punishment. The Court also records that blatant falsehood is\r\nuttered by the school with regard to psychological issues of the boy\r\nwhich are all clarified by the complainant on the strength of\r\ndocuments that there was no psychological issue earlier to the\r\nimposition of punishment. I therefore do not find any warrant of\r\ninterference with the order passed by the learned Magistrate taking\r\ncognizance of the offence by rejecting the ‘B’ report. Every\r\nsubmission made by the learned senior counsel on the strength of\r\ndocuments appended to the criminal petition are all generated after\r\nthe death of the boy or all are farther from truth. The falsity noted\r\nis not in thin air, but on the strength of documents. Therefore, this\r\nis not a case where there is neither instigation nor provocation. It\r\nis a case which has both, albeit, prima facie. </p><p>17. There are scores and scores of cases where offence under\r\nSection 306 of the IPC is loosely laid and those have all been\r\nquashed by the Apex Court or even this Court. All the judgments\r\nrelied on by the learned senior counsel for the petitioners either of\r\nthe Apex Court or this Court are all rendered on the facts obtaining\r\nin those cases. Much emphasis is laid by the learned senior counsel with regard to the judgment in the case of GEO VERGHESE (supra)\r\nwho was also a student of 9th class. The Apex Court holds that it\r\nwould not amount to abetment to suicide on the facts of the said\r\ncase. Therefore, the finding rendered in GEO VERGHESE would\r\nnot become applicable to the facts narrated hereinabove. In the\r\nsaid case before the Apex Court there was no proximity to\r\ninstigation that was immediately before the death of the boy, in the\r\ncase at hand, as observed hereinabove, it does have the\r\ningredients. Therefore, the second sheet anchor of the learned\r\nsenior counsel for the petitioners is inapplicable to the facts of the\r\ncase, as the facts in the case at hand are clearly distinguishable\r\nwith the facts obtaining in GEO VARGHESE. </p><p>The Apex Court comes down heavily on this Court for having\r\nquashed the proceedings against the accused therein by entering\r\ninto merits of the matter without permitting further trial. The Apex\r\nCourt considers ingredients of Section 107 and the purport of\r\nSection 306 of the IPC. In the light of the judgment in the case of\r\nMAHENDRA (supra) and finding that ingredients of Section 107 of\r\nthe IPC are clearly met in the case at hand for it to become an\r\noffence under Section 305 of the IPC albeit, prima facie, there is no\r\nwarrant of interference. The same goes with all the other offences\r\nas well. </p><p>20. A parting observation in the case at hand would not be\r\ninapt. An unfortunate incident has taken the precious life of a\r\nyoung boy. The incident is a subject of discipline in the school.\r\nDiscipline is always of two kinds – positive or negative. Positive\r\ndiscipline would be in the form of motivating the student and the\r\nnegative is other way round. It is in public domain that harsh discipline is closely linked to internalizing mental problems of a child\r\nand lowering the child’s cognitive functioning and school\r\nperformance. A child may be a trouble maker, mischievous or\r\notherwise. Punitive disciplinary actions like suspensions and\r\nexpulsions would sometimes in no way help the child get over the\r\naforesaid traits, it would only result in fading away all learning\r\nhabits of the child and great hardship to those families. Therefore,\r\nthe schools which are inculcating harsh discipline should think of a\r\nparadigm shift, so that the lives of young souls, who do not have\r\nthe capacity to think of the consequences of any action sometimes\r\nmay lead to devastating steps like the one found in the case at\r\nhand. Such cases would form illustrations of negative self\r\nevaluation and the children feeling bad about themselves. The\r\nEducational Institutions therefore, have to recognize this malady of\r\nover/harsh discipline, remedy the wrong in a different manner, so\r\nthat the lives of young souls would be saved. It is not the case of\r\njust one student, but, even one student. The institutions should\r\nalso recognize that the age old principles have now changed, I\r\nmean “spare the rod and spoil the child” has metamorphosed\r\ninto “spare the rod and teach the child”. </p><p>The Criminal Petition stands rejected. &nbsp;<br></p>', '690affeb6eaab9bce4bf78a576b4c2c6.jpg', '8d8027220e94cf0c4add58e67d493d85.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-26', 1, '', '', '2023-06-26 18:30:39', '2023-06-26 13:02:34'),
(3115, 'knyP6X0qU1GSKaKOj5QXLenQO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When proceedings are initiated under the Karnataka SC/ST (PTCL) Act, the authorities are bound to examine whether the grant comes within the purview of the Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shivapal Vs V. Ramprasad and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Appeal 4531 of 2015 decided on 19 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Somashekar and Justice Umesh M Adiga.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The subject matter of this litigation relates to Survey\r\nNo.30 of Kadiganahalli Village, Jala Hobli, Bengaluru North\r\nTaluk totally measuring 3 acres, out of which the subject\r\nmatter of case suit is 2 acres. The Special Deputy\r\nCommissioner of Inams Abolition, by its order dated\r\n15.09.1958, conferred occupancy right in respect of Survey\r\nNo.30 measuring 3 acres of Kadiganahalli Village of\r\nBengaluru North Taluk in favour of one Kinchanna Bhovi @\r\nVaddara Channa Bhovi under the provisions of the Mysore\r\n(Personnel and Miscellaneous) Inamss Abolition Act. It\r\nappears that the said Kinchanna Bhovi had three sons and\r\none daughter by names Sri. Narayanappa, Sri. Gurappa,\r\nSri.Papanna and Smt. Gowramma. After the death of\r\nKinchanna Bhovi, his sons and daughter succeeded to the\r\naforesaid property.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. Respondent No.4 in this writ appeal namely\r\nJadhavaji Nagarwala had purchased an extent of\r\n(325+210)/2x(390+372)/2 square feets approximately\r\nmeasuring to an extent of 1,01,917 sq.fts.(approx 2.14 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">acres), out of the total extent of 3.00 acres of Kadiganahalli\r\nvillage, under a registered sale deed dated 20.07.1976 from\r\nSri. Narayanappa, Sri. Gurappa and Sri. Papanna, who were\r\nthe sons of the original grantee Sri.Kinchanna Bhovi. It is\r\nalso made clear that they are the legal representatives of Sri.\r\nKinchanna Bhovi. Subsequent to that purchase, Respondent\r\nNo.4 had also purchased the remaining extent of land in\r\nSy.No.30 under a registered sale deed dated 28.07.1978\r\nfrom Sri. Narayanappa, Sri. Gurappa, Sri. Papanna and Smt.\r\nJayamma. Accordingly, Respondent No.4 had purchased the\r\nentire extent of land in Survey No.30 of Kadiganahalli\r\nvillage.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Respondent No.1 / V. Ramprasad had filed Appeal\r\nNo.980/2009 before the Karnataka Appellate Tribunal (\'KAT\'\r\nfor short) challenging the order dated 24.05.1996 passed by\r\nrespondent No.7 / Assistant Commissioner holding that\r\nrespondent No.4 had violated the provisions of Sections 79-A\r\nand 79-B of the Karnataka Land Reforms Act, after a period <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">f 14 years. In the said appeal, respondent No.4 / Jadavji\r\nNagarwal was also got impleaded as respondent No.4.\r\nRespondent No.3 / Gowramma and Shivapal / appellant in\r\nthe present appeal, had filed two separate applications\r\nbefore the KAT in Appeal No.980/2009 seeking to implead\r\nthem as parties. The KAT, by order dated 26.04.2013,\r\nallowed the appeal on the ground of delay and latches. The\r\nKAT also dismissed both the applications filed by respondent\r\nNo.3 and appellant, to implead themselves as a party in the\r\nsaid litigation. The said order was challenged in\r\nW.P.No.19997-19998/2013.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. The focal point of dispute in this writ appeal relates\r\nto the order dated 06.08.2013 passed by the Deputy\r\nCommissioner, whereby setting aside the order passed by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Assistant Commissioner canceling the sale deeds made in\r\nfavour of respondent Nos.1 and 2.\r\n19. It is not in dispute that the land in question i.e.\r\nsurvey No.30 to an extent of about 3 acres 10 guntas of\r\nKadiganahalli village, Jala Hobli, Bangalore North Taluk was\r\nan Inams land and under the Mysore (Religious and\r\nCharitable) Inams Abolition Act, 1955, Special Deputy\r\nCommissioner - Inams Abolition had re-granted and\r\nconferred occupancy right in respect of said 3 acres of land in\r\nfavour of Kinchanna Bhovi @ Vaddara Chinnanna under the\r\nprovisions of the said Act, by order passed in case\r\nNo.5/1958-1959 dated 29.10.1958. It is also not seriously\r\ndisputed that in the earlier litigation, the sons of Kinchanna\r\nBhovi by names Sri. Narayanappa, Sri. Gurappa, Sri.\r\nPappana and Sri.Laksmaiya have sold approximately 2 acres\r\n14 guntas i.e., to an extent of 1,01,917 sq.fts. out of total 3\r\nacres in the said survey number in favour of respondent No.4\r\n- Jadavji Nagarwala under registered sale deed dated\r\n20.07.1976. It is also not in serious dispute that the said </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respondent No.4 had further purchased the remaining extent\r\nof land in survey No.30 under a registered sale deed dated\r\n28.07.1978 executed by Sri. Narayanappa, Sri. Gurappa, Sri.\r\nPappana and Smt. Jayamma. It is also not in serious dispute\r\nthat respondent No.1 had purchased an extent of 1,01,917\r\nsq.ft i.e approximately 2.14 guntas in survey No.30 of\r\nKadiganahalli village from respondent No.4 under a\r\nregistered sale deed dated 04.09.1978. The above said sale\r\ndeeds were executed after 15 years from the date of grant\r\nand before enactment of the PTCL Act. This contention is\r\nalso made by the learned counsel for the appellant, counter\r\nto the contention made by the learned HCGP for the State.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. At a cursory glance of the material on record, it is\r\nrevealed that during the year 2003-2004, that is after lapse\r\nof nearly 24-25 years, Smt. Gowramma i.e. respondent No.3\r\nherein had filed an application to the Assistant\r\nCommissioner, Bengaluru North, praying to set aside the sale\r\ndeed executed in favour of one Sri. Prakash Babu and in turn\r\nregister the property in her name, since the said sale <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">transaction was made in violation of the provisions of The\r\nKarnataka Scheduled Castes and Scheduled Tribes\r\n(Prohibition of Transfer of certain Lands) Act, 1978\r\n(hereinafter referred to as \'PTCL Act\' for brevity). It is\r\npertinent to note that respondent No.1 and Jadhavji\r\nNagarwal herein were not at all referred in the said\r\napplication and they were not made as parties. The said\r\napplication was registered in case No.K.SC/ST/26/2003-\r\n2004. It appears that the Assistant Commissioner though\r\nreferred the names of respondent Nos.1 and Jadhavji\r\nNagarwal about sale of the property to them and also noticed\r\nthat respondent of the said case Mr. Prakash Babu had not\r\npurchased any portion of the property, held that the sale\r\nmade in favour of respondent Nos.1 and 2 herein was in\r\nviolation of the provisions of PTCL Act. Accordingly, by order\r\ndated 11.07.2005, the Assistant Commissioner cancelled or\r\nset aside the sale deeds executed in the names of V.\r\nRamaprasad / Respondent Nos.1 and Jadhavji Nagarwal /\r\nRespondent No.4 and also in favour of one Sri. Ananda </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Narayana, to whom Sri.Jadhavji Nagarwal was said to have\r\nsold an extent of 10x60 feet of the land by sale deed dated\r\n24.07.1976. The Assistant Commissioner had also directed\r\nthe Revenue officers to take over the possession of the lands\r\nand hand over the same to respondent No.3 herein and also\r\nordered to make necessary entries in the revenue records in\r\nfavour of Smt. Gowramma / Respondent No.3. It is\r\ncontended by the learned counsel for the appellant that the\r\nsaid order was passed without hearing the affected person\r\nand not following the principles of natural justice. This\r\ncontention is made by the learned counsel for the appellant\r\nseeking intervention of the order passed by the Deputy\r\nCommissioner / Revenue Authority.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">21. In view of the order passed by the Assistant\r\nCommissioner dated 11.07.2005 referred to supra, the\r\nrevenue officers had taken possession and on 03.11.2005,\r\nhad handed over the land in favour of Smt. Gowramma and\r\nother legal heirs of Kinchanna Bhovi. A Mahazar was also\r\ndrawn to that effect. However, in the said document it is not</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">stated that possession was taken over in the presence of or\r\nwith notice to aggrieved parties. Hence, it is contended by\r\nthe learned counsel for the appellant that principles of\r\nnatural justice though requires to be followed in stricto\r\nsenso, the same has not been followed in the present case\r\non hand, which has resulted in a gross miscarriage of justice.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. Keeping in view the contention made by the learned\r\ncounsel for the appellant, counter arguments advanced by\r\nthe learned HCGP for the State, it is necessary to refer to\r\nSection 3(b) of the PTCL Act, which reads thus:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n3(b) \"Granted Land\" means any land\r\ngranted by the Government to a person belonging\r\nto any of the Scheduled Castes or the Scheduled\r\nTribes and includes land allotted or granted to\r\nsuch person under the relevant law for the time\r\nbeing in force relating to agrarian reforms or land\r\nceilings or abolition of imams, other than that\r\nrelating to hereditary offices or rights and the\r\nword \"granted\" shall be construed accordingly; </i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. Looking to the definition of Section 3(b) i.e.,\r\n\"granted land\" the land granted under the Inams abolition\r\nother then relating to hereditary offices and other rights are <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">excluded. In this case, the land was granted under the\r\nMysore (Religious and Charitable) Inams Abolition Act, 1955.\r\nThe Special Deputy Commissioner (Inams abolition), had\r\nconferred occupancy right in respect of survey No.30\r\nmeasuring 3 acres in the name of Kinchanna Bhovi under the\r\nprovisions of the Inams Abolition Act, 1955. The said\r\nKinchanna Bhovi had a pre-existing right, which was\r\nconfirmed by the Special Deputy Commissioner after\r\nabolition of the Inams Abolition Act. Therefore, the land was\r\nnot granted to Kinchanna Bhovi under the Karnataka Land\r\nGrant Rules.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. A perusal of the Section 3(1)(b) of the PTCL Act\r\nreveals that when it is not reasonably practicable to restore\r\nthe land to the original grantee or his legal heir, such land\r\nshall be deemed to have vested in the Government free from\r\nall encumbrances and hence, the Government may grant\r\nsuch land to a person belonging to any of the Scheduled\r\nCastes or Scheduled Tribes in accordance with the rules\r\nrelating to grant of land. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>35. It is further contended that the order of the Deputy\r\nCommissioner at Annexure-“A” neither discloses that he\r\ninspected the original records nor sought for any of the\r\noriginal records. The State being the custodian of the\r\nrecords, it was incumbent on the Deputy Commissioner to\r\nmaintain and peruse the same. In respect of the same, it is\r\nargued that the Deputy Commissioner had not recorded in\r\nthe order-sheet as to what kind of lands were being granted.\r\nTherefore, it is difficult to determine whether the land\r\ngranted falls under the ambit of ‘granted land’ as defined\r\nunder Section 3(1)(b) of the PTCL Act and whether the\r\nDeputy Commissioner had the authority and jurisdiction to\r\npass any orders.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>37. A perusal of the impugned order passed by the\r\nDeputy Commissioner / Revenue Authority reveals that he\r\nhas proceeded on the fallacy that PTCL Act does not prescribe\r\nany period of limitation for filing the appeal. Sec.5-(1-A) of\r\nPTCL Act extracted hereinabove prescribes the period of\r\nlimitation for filing the appeal. The proviso to Sec. 5-(1-A)\r\nprovides for the filing of an application to condone the delay\r\nin filing the appeal. Rule 4(4) of PTCL Rules also contains the\r\nmandatory requirement that the appeal memorandum should\r\nbe accompanied by a separate application for the condonation\r\nof delay supported by an affidavit sworn to by the appellant. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the wake of the statutory requirement, the order of the\r\nDeputy Commissioner cannot but be held to be erroneous.\r\nOnly on this premise and considering the grounds urged in\r\nthis appeal, learned counsel prays to quash the order passed\r\nby the Deputy Commissioner. However, quashing of the\r\nDeputy Commissioner’s order does not mean that the\r\nAssistant Commissioner’s order has attained finality.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>40. In the instant appeal, it is required to refer to\r\ncertain materials facilitated by the learned counsel for the\r\nappellant in support of the grounds urged in this appeal for\r\nseeking intervention. As regards Jadhavji Nagarwal / <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Respondent No.4 herein who was arraigned as a party before\r\nthe Assistant Commissioner, there is nothing to show that\r\nnotice was served upon him. The Assistant Commissioner\r\nproceeded on the basis that though notice was issued, the\r\nsaid Jadhavji Nagarwal did not appear. Hence, notice was\r\naffixed on conspicuous places. However, whether the notice\r\nissued was served on him and in which conspicuous places\r\nthe notice was affixed, is not mentioned in the order. Thus,\r\nan exparte order was passed holding that no material had\r\nbeen produced by the party, namely Jadhavji Nagarwal to\r\nparticipate in the proceedings before the Assistant\r\nCommissioner, Bangalore District. But the learned counsel\r\nhas contended that the aforesaid Jadhavji Nagarwal had\r\npurchased the disputed land in Sy.No.30 situated in\r\nKadiganahalli Village of Bengaluru North Taluk in the year\r\n1976. Hence, the proceedings initiated against Jadhavji\r\nNagarwal during the year 1995-96 after a lapse of 17 years\r\nwas unauthorised, that too when Jadhavji Nagarwal himself\r\nhad parted with the land in favour of Shri V. Ramprasad in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the year 1978. The authorities cannot prejudice the rights of\r\nthe subsequent purchaser namely Shri V. Ramprasad who\r\nhas enjoyed the land for nearly 15 years after purchasing the\r\nsame. These are all the issues which are required to be\r\ndecided by the revenue authority where the proceeding was\r\ninitiated either before the Assistant Commissioner, Bangalore\r\nDistrict, Bangalore or even before the Deputy Commissioner,\r\nBangalore District with regard to the order passed by the\r\nAssistant Commissioner.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>41. Indeed in the instant case, the issue emerged\r\nbetween the parties is as regards the sale deed executed by\r\nGowramma in favour of Shivapal. It is stated that the land\r\nwas granted, recognizing the rights of the original grantee as\r\na ‘Kadim tenant’ under the provisions of the Inams Abolition\r\nAct. In fact, the Deputy Commissioner has also recorded\r\nindependent findings in this regard holding that the grant\r\nwas under the provisions of the Inams Abolition Act. These\r\nare all the issues which are required to be considered\r\nrelating to the land in Sy.No.30 which was granted under the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Inams guidelines. Indeed the Deputy Commissioner has held\r\nthat even if it was a granted land, the land was sold after the\r\nexpiry of non-alienation period of 15 years. These are the\r\nissues which are required to be considered on the basis of\r\nthe materials facilitated by the parties to the proceedings\r\nrelating to the appeal preferred before the Deputy\r\nCommissioner, Bangalore District, Bangalore.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>42. The learned counsel for the appellant has taken us\r\nthrough the aforesaid contentions and emphatically\r\nsubmitted that the order passed by the learned Single Judge\r\nin the aforesaid Writ Petitions and even the order passed by\r\nthe Deputy Commissioner, Bangalore District, Bangalore,\r\nwhich was confirmed in the aforesaid writ petition of the\r\nLearned Single Judge, requires intervention in this appeal.\r\nBut the authorities cannot prejudice the rights of the parties\r\nto the proceedings. Even subsequent purchaser namely V.\r\nRamprasad has enjoyed the land for nearly 15 years after\r\npurchasing the same. Therefore, in this appeal, it requires\r\nfor intervention by considering the grounds urged therein <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and so also the ratio of reliances facilitated by the counsel for\r\nthe appellant. If the impugned order passed by the learned\r\nSingle Judge is not interfered, certainly it would result in a\r\nmiscarriage of justice to the parties who have initiated the\r\nlis. Even the regular appeals in R.A.No.15030/2013 and\r\nR.A.No.15003/2014 which are pending consideration\r\nbetween the parties are to be decided independently in a\r\ntime bound manner. Consequently, it is opined that the\r\nappeal deserves to be allowed by setting aside the order\r\npassed by the learned Single Judge in respect of the said writ\r\npetitions and consequently by setting aside the order passed\r\nby the Deputy Commissioner, Bangalore District, Bangalorein\r\nNo.SC.ST (A) 13/2011-12 filed by Shri V. Ramprasad as well\r\nas the appeal in No.SC.ST (A) 40.2011-12 filed by Shri\r\nKishore Nagarwal.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">43. On a careful consideration of the above contentions\r\nmade by the learned counsel for the appellant seeking to\r\nconsider the grounds urged in this appeal including the\r\nwritten submission made inclusive of the ratio of reliances</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">facilitated, we find that intervention is required in this\r\nappeal.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> i) The appeal is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6fe999185d08a7d8d252e458c7ada137.jpeg', 'e92121a0236481ab5aefb99f00060cc8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-28', 1, '', '', '2023-06-27 13:06:48', '2023-06-28 06:24:23');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3116, '0zGMElxkhmGVzwkTMG4QdK0UP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Compliance of Section 156(3), Cr.P.C. supported by an affidavit is mandatory for filing private complaint under Section 200 failing which the proceedings are liable to be quashed. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Raghavendra Vs State and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 4831 of 2022 decided on 1 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Facts in brief germane, are as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The second respondent is the complainant. The petitioner is arrayed as accused No.4 and at the relevant point in time was working as Sub-Registrar. It is the case of the complainant that one Nagaraja Shetty presents a sale deed on 23.11.2021, in respect of a land in survey No.78/2 of Malligametlu village, Maralavadi Hobli, Kanakapura Taluk, Ramanagara District, measuring 1 acre 19 guntas, to sell the property to one Bharath K. B. The petitioner receives the sale deed and registers the same on 23.11.2021. The respondent No.2 who claims ownership of the aforesaid property, alleges that he has been impersonated by Nagaraja Shetty, who had no title of the property and had executed the sale deed.   It is on this basis a private complaint in P.C.R.No.23/2022 comes to be registered against the petitioner and others. The allegation against the petitioner is that, he has not verified the ownership of the property and has registered the sale deed without any verification. The learned Magistrate refers the matter for investigation under Section 156(3) of the Cr.P.C., which becomes a crime in crime No.16/2022. Registration of the crime is what drives the petitioner to this Court in the subject petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>The afore-narrated facts are not in dispute and requires no reiteration. The private complaint is registered by respondent No.2 invoking Section 200 of the Cr.P.C.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The complainant seeks reference of the matter under Section 156(3) of the Cr.P.C. to the jurisdictional police for conduct of investigation for several offences. The complaint nowhere narrates that efforts being taken for compliance of Section 156(3) of the Cr.P.C. and the complaint is supported by an affidavit as is required in law. The issue whether a private complaint could be entertained or not when it being not accompanied with an affidavit has been dealt with by the Apex Court in the case of PRIYANKA SRIVASTAVA VS. STATE OF UTTAR PRADESH AND OTHERS reported in (2015) 6 SCC 287. The Apex Court has held as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>\"30.. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>31...The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as  are  illustrated  in Lalita Kumari [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.” </i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The Apex Court in the afore-extracted judgment has clearly held that frivolous registration of crime has to be nipped at the bud as an affidavit verifying the contents of the complaint is a mandatory requirement in the least.   The said judgment is again followed by the Apex Court in the case of BABU VENKATESH AND OTHERS Vs. STATE OF KARNATAKA AND ANOTHER reported in (2022) SCC Online SC 200, wherein, it is held as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>\"25.<span style=\"white-space:pre\">	</span>This court has clearly held that, a stage has come where applications under Section 156(3) of Cr.P.C. are to be supported by an affidavit duly sworn by the complainant who seeks the invocation of the jurisdiction of the Magistrate.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>26.<span style=\"white-space:pre\">	</span>This court further held that, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also verify the veracity of the allegations. The court has noted that, applications under Section 156(3) of the Cr.P.C. are filed in a routine manner without taking any responsibility only to harass certain persons.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>27.<span style=\"white-space:pre\">	</span>This court has further held that, prior to the filing of a petition under Section 156(3) of the Cr.P.C., there have to be applications under Section 154(1) and 154(3) of the Cr.P.C. This court emphasizes the necessity to file an affidavit so that the persons making the application should be conscious and not make false affidavit. With such a requirement, the persons would be deterred from causally invoking authority of the Magistrate, under Section 156(3) of the Cr.P.C. In as much as if the affidavit is found to be false, the person would be liable for prosecution in accordance with law.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i> 28.<span style=\"white-space:pre\">	</span>In the present case, we find that the learned Magistrate while passing the order under Section 156(3) of the Cr.P.C., has totally failed to consider the law laid down by this court.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>29.<span style=\"white-space:pre\">	</span>From the perusal of the complaint it can be seen that, the complainant/respondent No. 2 himself has made averments with regard to the filing of the Original Suit. In any case, when the complaint was not supported by an affidavit, the Magistrate ought not to have entertained the application under Section 156(3) of the Cr.P.C. The High Court has also failed to take into consideration the legal position as has been enunciated by this court in the case of Priyanka Srivastava v. State of U.P. (supra), and has dismissed the petitions by merely observing that serious allegations are made in the complaint.”</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Therefore, in the light of the complaint not meeting the requirements of law as laid down by the Apex Court in the aforesaid judgments, further proceedings taken thereto, would all become a nullity in law.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>a.<span style=\"white-space:pre\">	</span>The writ petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'afc2cb783b10a5695ec649d721ced2f5.jpeg', '148d0f05f9a8d877bf1551895f7ea0f7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-28', 1, '', '', '2023-06-27 13:32:29', '2023-06-28 03:22:04'),
(3117, 'vlrkb5BGR9u4D9F9TQ40aWNY1', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Labour Law. If the enquiry is held to be fair and proper, in the absence of victimization or unfair labour practice, the labour Court has no power to interfere with the punishment imposed. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Karnataka State Road Vs Rajanna<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 2708 of 2013 decided on 5 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.S Hemaleka.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The facts are that the respondent - Conductor was on duty in a bus plying from Bengaluru to Thiruvannamalai and when the bus was checked at Gundlupet, there were about 17+1 passengers traveling in the bus of which the respondent had issued two tickets of Rs.241/- each to two passengers traveling from Bengaluru to Calicut by wrongly punching the tickets as \'1 to 23\' instead of \'1 to 62\' and the Articles of charges were issued. The workman submitted his reply to the Articles of charges, the respondent – workman was imposed with an order of punishment by denying three ensuing annual increments with cumulative effect. After lapse of six years, a Dispute was raised by the workman and the same came to be referred to the Tribunal in I.D. No.104/2010 for adjudication under Section 10(1)(d) of the Industrial Disputes Act, 1947 (hereinafter referred to as \'the Act\' for the sake of convenience). </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>The Tribunal by its impugned order has set aside the order of punishment imposed upon the workman. Assailing the said order, the present petition is filed by Corporation.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>Having heard the learned counsel for the parties, the point that arises for consideration is:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">“Whether the petitioner – Corporation has made out a case to interfere with the judgment passed by the Tribunal?”</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>The allegations in the articles of charges is that, the respondent had issued two tickets of Rs.241/- to two passengers traveling from Bengaluru to Calicut by wrongly punching the ticket as 1 to 23 instead of 1 to 62 and articles of charges were issued on 17.11.2003. To the articles of charges reply was submitted, enquiry was held in respect of charges and the Enquiry Officer submitted his findings holding that the charges are proved. The Disciplinary Authority accepted the findings of the Enquiry Officer and imposed with an order of punishment by denying the three ensuing annual increments to the workman with cumulative effect. Dispute was raised under Section 10(1) (d) of the Act with an inordinate delay of six years.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>Section 11-A gives ample power to the Tribunal to re-appreciate the evidence adduced in the enquiry, however, if the enquiry is held to be fair and proper, in the absence of victimization or unfair labour practice, the labour Court or the Court, as the case may be has no power to interfere with the punishment imposed.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>A plain reading of Section 11-A makes it clear that the Tribunal can interfere with the order of the Disciplinary Authority only on two conditions, i.e., when the finding is perverse and when there is discharge or dismissal and re- instatement. The Apex Court in the case of KERALA STATE CASHEW DEVELOPMENT CORPN. LTD. (supra) has held at para 16 as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“16. The Labour Court had earlier held that the enquiry was properly held and there was no violation of the principles of natural justice and that the findings were not perverse. The vitiating facts found by the Labour Court against the enquiry are erroneous and are liable to be set aside. If the enquiry is fair and proper, in the absence of any allegations of victimization or unfair labour practice, the Labour Court has no power to interfere with the punishment imposed. Section 11-A of the Act gives ample power to the Labour Court to reappraise the evidence adduced in the enquiry and also sit in appeal over the decision of the employer in imposing punishment. Section 11-A of the Industrial Disputes Act is only applicable in the case of dismissal or discharge of a workman as clearly mentioned in the Section itself. Before the introduction of Section 11-A in Indian Iron and Steel Co. Ltd. v. Workmen this Court held that the Tribunal does not act as a Court of appeal and substitute its own judgment for that of the Management and that the Tribunal will interfere only when there is want of good faith, victimization, unfair labour practice, etc. on the part of the management. There is no allegation of unfair labour practice, victimization etc. in this case. The powers of the Labour Court in the absence of Section 11-A is illustrated by this Court in Workmen v. Firestone Tyre and Rubber Co. of India (P) Ltd. When enquiry was conducted fairly and properly, in the absence of any of the allegations of victimization or mala fides or unfair labour practice, the Labour Court has no power to interfere with the punishment imposed by the management. Since Section 11-A is not applicable, the Labour Court has no power to reappraise the evidence to find out whether the findings of the enquiry officer are correct or not or whether the punishment imposed is adequate or not. Of course, the Labour Court can interfere with the findings if the findings are perverse. But, here there is a clear finding that the findings are not perverse and principles of natural justice were complied with while conducting enquiry.”<br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>In light of the expression “discharge” and “dismissal”, it is only in those cases of punishment that this Section vests the discretionary jurisdiction in the Tribunal. The section makes it clear that it only apply to punishment of discharge or dismissal and does not apply to other minor punishments such as warning, withholding increment suspension etc. Thus, the interference by the Tribunal to punishment other than “discharge” and “dismissal” is not justifiable. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>Another aspect what the Tribunal has not taken into consideration is the delay in raising the dispute after prolonged six years without offering sufficient explanation for delay, merely stating that the workman has preferred appeal would not be sufficient to overlook the delay of six years. The Apex Court in the case of Nedungadi Bank Ltd., (stated supra) has held at paragraph No.7 that even in the absence of statutory limitation period for reference, such power cannot be exercised to revive settled matters or to refer stale disputes and same reads as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“7. In the present appeal it is not the case of the respondent that the disciplinary proceedings, which resulted in his dismissal, were in any way illegal or there was even any irregularity. He availed his remedy of appeal under the rules governing his conditions of service. It could not be said that in the circumstances an industrial dispute did arise or was even apprehended after a lapse of about seven years of the dismissal of the respondent. Whenever a workman raises some dispute it does not become industrial dispute and the appropriate Government cannot in a mechanical fashion make the reference of the alleged dispute terming it as an industrial dispute. The Central Government lacked power to make reference both on the ground of delay in invoking the power under Section 10 of the Act and there being no industrial dispute existing or even apprehended. The purpose of reference is to keep industrial peace in an establishment. The present reference is destructive to the industrial peace and defeats the very object and purpose of the Act. The Bank was justified in thus moving the High Court seeking an order to quash the reference in question.” </i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The line of reasoning which weighed with the Tribunal is plainly erroneous. The Tribunal was not justified in interfering with the order of disciplinary authority in absence of any perversity in the finding and in the absence of any allegation of victimization or unfair labour practice. Accordingly, the point is answered in favour of Corporation.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> i.<span style=\"white-space:pre\">	</span>Writ Petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '633ce80d0ec6d57a1fbf9bb619f61ec0.JPG', '6d46284d63b70e7afbf03c936df5253b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-28', 1, '', '', '2023-06-27 14:27:40', '2023-06-28 12:07:34'),
(3119, 'D5BdzfNtpM2bRwkavFCeKoy3v', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque Bounce cases. Moratorium contained in Section 14 of the Insolvency and Bankruptcy Code applies only to Corporate Debtors. Directors are liable under Chapter XVII of the Negotiable Instruments Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Indiranagar Chit Funds and Trading Company Private Limited and others Vs Rabindra Kumar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 4902 of 2020 decided on 18 March 2021.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The factual matrix of the case is that the petitioners were running M/s. Indiranagar Chit Funds and Trading Company, registered as a Chit Fund Company under the provisions of the Companies Act, 1956 in the year 1976. The Company gained popularity over a period of time in the Chit Fund business and has completed about 2000 chit groups. It is the further contention of the petitioners that the Company grew to become a force to reckon with in the Chit Fund Business and transacted with several Crores of Rupees and with more than around 5000 satisfied customers. In fact, the Company was started by one Mr.Achuthan Nair, i.e., the father of the second and third petitioners. That after his demise, his sons Mr.P.K.Chandrasekhara Babu and Mr.P.K.Ravi Kumar were managing the business as its Directors.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 3.<span style=\"white-space: pre;\">	</span>Due to the general slump in the financial market and also due to the demonetization of money, many of the subscribers of the chits, who were paying in cash started defaulting in payment of monthly installments. That apart, many customers/subscribers, who had bid for the chit also did not repay M/s. Indiranagar Chit Funds and Trading Company, as a result of which, there was short fall in collection every month. However, the expenses and out flow from the Company did not reduce. Due to financial pressures as stated supra, the chit groups were also not fully subscribed. The Company instead of focusing on recoveries started repaying the customers whose chits had matured by borrowing heavily with huge rate of interest i.e., 2% to 4%, as a result of which, there was financial pressure over the Company.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 4.<span style=\"white-space: pre;\">	</span>It is further contended that in many cases, the customers did not take the chit and left it with the Company to get interest which would be the subscription for a new chit. This resulted in unhealthy and unfinished group having less collection every month and with the shortage of collections and inflow of funds was only in Books and not in reality. Thus, the Company was in the red which resulted in no inflow of cash. It is also contended that M/s. Indiranagar Chit Funds and Trading Company sold some of its properties and repaid many customers. This being the factual situation, the Superintendent in the office of the Assistant Registrar of Co-operative Societies, filed a complaint before the Indiranagar Police Station when many subscribers of Chit Fund Companies started complaining regarding the default of the Company. The first respondent- Police registered a complaint under Section 420 of IPC and Section 76 of the Chit Fund Act, 1982 (for short \'the Act, 1982\') against the Directors of the M/s. Indiranagar Chit Funds and Trading Company. The filing of criminal case triggered panic amongst subscribers of the first petitioner, who filed many cheque bounce cases against the petitioners. In fact, the petitioners were not allowed to set right things and the Indiranagar Police sealed all offices of the first petitioner and seized all accounts books and froze all the Bank accounts. Thus, the cheque was returned due to accounts being frozen and returned unpaid with the remarks \"Refer the Drawer\". </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">5.<span style=\"white-space: pre;\">	</span>It is further contended that in the meanwhile, one Mr.Rajendra.P filed a petition under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for short \'the I&B Code, 2016\') read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for short \'I&B Rules, 2016\') by inter alia seeking to initiate the Corporate Insolvency Resolution Process against the first petitioner on the ground that it has committed default. The said petition was filed before the National Company Law Tribunal, Bengaluru Bench and numbered as CP (IB) No.322/BB/2019. The said petition came up before the National Company Law Tribunal (NCLT), Bengaluru Bench on 28.01.2020 and the Tribunal was pleased to admit the petition and ordered that a Moratorium be declared in respect of the first petitioner and its Directors i.e., the second and third petitioners. By virtue of the order dated 28.01.2020 of the NCLT, Bengaluru Bench and Section 101 of the I&B Code, 2016, the proceedings initiated by the respondent against the petitioners herein will have to be quashed.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>The common ground urged in all the petitions is that Section 101 of the I&B Code, 2016 states that once an application for initiation of Corporate Insolvency is filed and admitted before the National Company Law Tribunal, a Moratorium shall commence in relation to all the debts and all pending legal action or proceedings in respect of any debts shall be deemed to have been stayed.   That apart, Section 3(11) of the I&B Code, 2016 describes \"Debt as a liability or obligation in respect of the claim which is due from any persons and includes a financial debt or operation debt\". Accordingly, since Section 101 sub clause 2(a) postulates that all pending legal actions or proceedings in respect of any debt shall deemed to have been stayed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">7.<span style=\"white-space: pre;\">	</span>It is contended that under Section 101(3) states that when an order of admitting the application under Section 96 of I&B Code, 2016 has been made in relation to a firm, the Moratorium would also apply against all the partners of the firm. Further, Section 141(2) of the Negotiable Instruments Act (for short ‘the NI Act’), i.e., at explanation, it states that the Director in relation to a firm means a Partner of the firm and hence, the proceedings initiated against all these petitioners by all the respondents herein needs to be quashed.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>Having heard the learned counsel for the petitioners and also learned counsel for the respondents, this Court has to appreciate the material available on record. It is not in dispute that the subscribers of the Chit Fund have initiated the proceedings against these petitioners under Section 138 of the NI Act. The main contention of the learned counsel for the petitioners before this Court is that one of the subscribers approached the NCLT and NCLT admitted the petition for moratorium and passed an order in the month of January, 2020. Learned counsel appearing for the petitioners also extracted Section 101 of I&B Code, 2016.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>The Apex Court dealt with the principles laid down in the case of ANEETA HADA v. GODFATHER TRAVELS & TOURS (P) LTD., reported in (2012) 5 SCC 661 and held that the proceeding against the Directors cannot be initiated or continued without the Corporate Debtor because Section 141 of the NI Act speaks of persons in charge of, and responsible to the Company, for the conduct of the business of the Company, as well as the Company. The Apex Court referring to all these paragraphs held that since the Corporate Debtor would be covered by the moratorium provision contained in Section 14 of the I&B Code, 2016, by which continuation of Section 138/141 proceedings against the Corporate Debtor and initiation of Section 138/141 proceedings against the said debtor during the Corporate lnsolvency Resolution Process are interdicted, what is stated in para Nos.51 and 59 in Aneeta Hada (supra) would then become applicable. The legal impediment contained in Section 14 of the I&B Code, 2016 would make it impossible for such proceedings to continue or be instituted against the Corporate Debtor. Thus, for the period of moratorium, since no Section 138/141 proceeding can continue or be initiated against the Corporate Debtor because of a statutory bar, such proceedings can be initiated or continued against the persons mentioned in Section 141(1) and (2) of the NI Act. This being the case, it is clear that the moratorium provision contained in Section 14 of the I&B Code, 2016 would apply only to the Corporate Debtor, the natural persons mentioned in Section 141 continuing to be statutorily liable under Chapter XVII of the NI Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 20.<span style=\"white-space: pre;\">	</span>The Apex Court in detail discussing the same held that Section 138/141 proceedings against the Corporate Debtor is covered by Section 14(1)(a) of the I&B Code, 2016 and allowed the appeal. However, Section 138/141 proceedings in this case will continue both against the Company as well as the Appellants for the reason given by them in para No.77 above as well as the fact that insolvency resolution process does not involve a new management taking over. It is also observed that the moratorium has come to an end in the case the Apex Court also discussed with regard to the Scope of Section 138 in Crl.A. and held that the moratorium provisions not extend to the persons other than the Corporate Debtor and appeal stands dismissed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space: pre;\">	</span>Having perused the principles laid down in the judgment referred supra and also the facts of the present cases on hand, it is clear that the subscribers of the Chit Fund have initiated the proceedings under Section 138 of the NI Act and the material available on record also discloses that one of the subscribers invoked the I&B Code, 2016, wherein moratorium order has been passed under Section 14 of the I&B Code, 2016 and the petitioners\' counsel also produced the documents for having appointed a liquidator in respect of the Company. This Court has already discussed the principles laid down in para No.77 of the recent judgment of the Apex Court in P.Mohanraj’s case, wherein it has been discussed in detail the judgment of Aneeta Hada and held that the legal impediment contained in Section 14 of the I&B Code, 2016 would make it impossible for such proceedings to continue or to be initiated against the Corporate Debtor. Thus, for the period of moratorium, since no Section 138/141 proceeding can continue or shall be initiated against the Corporate Debtor because of a statutory bar such proceedings can be initiated or continued against the persons mentioned in Section 141(1) and (2) of the NI Act. Hence, Section 14 of the I&B Code, 2016 would apply only to the Corporate Debtor. The natural persons mentioned in Section 141 continuing to be statutorily liable under the Chapter XVII of the NI Act and in conclusion it is held that Section 138/141 proceedings, in the case, will continue both against the Company as well as the appellants for the reasons given by the Apex Court in para No.77 as well as the fact that the insolvency resolution process does not involve a new management taking over.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22.<span style=\"white-space:pre\">	</span>In view of the principles laid down in the judgment, it is crystal clear that Section 14 of the I&B Code, 2016 would apply only to the Corporate Debtor and hence, the very contention of the petitioners that the judgment of the Apex Court would come to the aid of the petitioners herein cannot be accepted.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitions are hereby dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e7b1d6ac72049cf3265b993bc780a18f.JPG', 'c6c46b05b50ecefac4e682dc05d2442a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-28', 1, '', '', '2023-06-27 15:47:27', '2023-06-28 10:22:55');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3125, '7jQEulJGc99VdQsvLBVInZcio', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Land Reforms Act. Tenants holding lease for limited period cannot be presumed to be out of possession unless surrender or lawful recovery of possession is established. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Rudrappa thr LRS and others Vs The State of Karnataka and others.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Writ Petition 24192 of 2005 decided on 30 May 2023.<o:p></o:p></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Justice S. Vishwajith Shetty.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>The petitioners claim to be in actual possession and cultivation of the lands bearing Sy.Nos.106/1, 106/2A & 106/2B measuring 30 guntas each, situated at Pulagaddi Village, Gokak Taluka, Belagavi District (which are hereinafter referred to as “the lands in question”). It is the case of the petitioners that, the lands in question were leased to their predecessors under a registered Kabulayat deed dated 30.08.1941. The entries in the revenue records of the lands in question thereafter continued in the name of the predecessors of the petitioners till the year 1945. In the year 1965,   the   petitioners   had   filed O.S. No.127/1965 against the contesting private respondents to declare that they are in possession and occupation of the lands in question as tenants and also for consequential reliefs. After coming into force of the Amendment Act No.1 of 1974, the petitioners had filed three separate Form No.7 claiming occupancy rights of the lands in question. Considering the same, the Tribunal by order dated 22.10.1981 had granted the occupancy rights of the lands in question in favour of the petitioners. The same was questioned by the land owners in W.P. Nos.40286-288/1981 and this Court allowed the writ petitions and remitted the matter to the Land Tribunal for fresh consideration by order dated 10.11.2000. After the remand, the Tribunal rejected Form No.7 filed by the petitioners by order dated 29.01.2003. The same was questioned  by the petitioners      herein in W.P. No.7517/2003, which was allowed by order dated 29.08.2003 and the matter was remitted to the Land Tribunal for fresh consideration. The said order was unsuccessfully challenged by the land owners in W.A. No.7066/2003, which was dismissed by the Division Bench of this Court by order dated 23.01.2004. After the remand, the Land Tribunal once again took up the matter and by the order impugned has rejected the claim made by the petitioners in Form No.7 for grant of occupancy rights of the lands in question in their favour. Being aggrieved by the same, the petitioners are before this Court.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>Under the Kabulayat deed, the lands in question were leased to the predecessor of the petitioners and the lease period was for five years. There is no material available on record to show that after the expiry of five years period of lease, the lands in question were surrendered to the land owners or the land owners have taken possession of the lands in question from the lessee in accordance with law. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>On behalf of the land owners, their general power of attorney namely one Ramappa Dasappa Naik was examined before the Tribunal and during the course of his cross-examination, he has categorically admitted that there is no document to show that the tenants / petitioners had surrendered the lands in question after the expiry of the lease period nor there was any document to show that the land owners had taken possession of the lands in question from the tenants after the expiry of lease period. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>Section 6 of the Karnataka Land Reforms Act, 1961 (for short “the Act, 1961”) provides that tenancy shall not be terminated by efflux of time. This Court in the case of Gurusidaiah Vs. Land Tribunal reported in 1979(2) Kar.L.J. 176, in almost identical circumstances, wherein, under a registered lease deed, possession of the lands were delivered for a period of five years, has held that since the deed in question is a lease deed and not a mortgage deed, the recital regarding the delivery cannot be given effect to in view of Section 6 of the Act, 1961. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>It is the specific case of the petitioners that they have continued in possession and cultivation of the lands in question even after the expiry of the lease period. O.S. No.127/1965 was filed by them against the land owners with the prayer to declare that they were in possession of the lands in question as tenants and also for consequential reliefs. In the said suit, the Court Commissioner has filed a report dated 21.02.1965, which would go to show that a portion of the lands in question were under cultivation by the petitioners and the remaining portion was a barren lands. In the report, there is also mention about a hut situated in the lands in question. A local inspection report was also called for by the Tribunal during the course of its enquiry before passing the initial order under which occupancy rights were granted to the petitioners. A perusal of the report and sketch prepared after the inspection would go to show that a hut existed in the portion of the property, which belonged to the first petitioner. The said document also shows that a portion of the lands in question was cultivated by the petitioners, while the remaining portion is barren land. The Tribunal has failed to appreciate these material documents. In addition to the same, independent witnesses examined on behalf of the tenants have also stated that the petitioners are in possession and cultivation of the lands in question.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 13.<span style=\"white-space: pre;\">	</span>The Tribunal while rejecting the Form No.7 has therefore erroneously held that the petitioners / tenants had failed to prove that they were in possession and cultivation of the lands in question as on 01.03.1974 and immediately prior to the said date. The Tribunal has also held that the lands in question had not vested in the State as provided under Section 44 of the Act, 1961 and therefore, the petitioners / tenants were not entitled for grant of occupancy rights of the lands in question. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">14.<span style=\"white-space: pre;\">	</span>Section 44 of the Act, 1961 provides that all lands held by or in the possession of tenants (including tenants against whom a decree or order for eviction or a certificate for resumption is made or issued) immediately prior to the date of commencement of the Amendment Act, other than lands held by tenants under leases permitted under section 5, shall, with effect on and from the said date, stand transferred to and vest in the State Government. The Amendment Act No.1 of 1974 has come into force with effect from 01.03.1974, the tenants who were put in possession of the lands in question under a registered lease deed allegedly continued to be in possession and cultivation of the said lands, even after the expiry of the lease period and the material on record would go to show that the land owners have failed to prove that the tenants had surrendered the possession of the lands in question after the expiry of the lease period or that the land owners have taken possession or / evicted the tenants in accordance with law. Under the circumstances, the Tribunal was not justified in holding that the lands in question had not vested in the State under Section 44 of the Act, 1961.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>The Tribunal has also held that since the lease period was restricted for five years, it has to be presumed that the lease was not continued. When there is absolutely no material to show that the tenants had surrendered the lands in question to the land owners or that the land owners have taken possession of the lands in question in accordance with law, the Tribunal was not justified in holding that it has to be presumed that after the expiry of five years, the lease was not continued. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">16.<span style=\"white-space: pre;\">	</span>Under the circumstances, I am of the considered view that, the impugned order passed by the Tribunal cannot be sustained and the matter requires to be remitted to the Tribunal once again for fresh consideration of the Form No.7 filed by the petitioners after appreciating the oral and documentary evidence available on record and after giving opportunity to both the parties.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space: pre;\">	</span>The writ petition is allowed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p></o:p></p>', '23a8fa728eb9465205bacde52d9006a7.jpeg', '91ad06ad0ad95e78ed5c97583a75c9e0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-30', 1, '', '', '2023-06-28 14:35:12', '2023-06-30 03:21:42'),
(3122, 'aOdOsR8ftiH1ncyfWlXGt0QJt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Law. Gift by a coparcener of his undivided interest in the coparcenary property either to a stranger or to his relation without the consent of the other coparcener is void. Comprehensive Judgement of the Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>C.N. Leelavathi Vs M. Narayanappa and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular First Appeal 1905 of 2005 decided on 9 December 2020.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Jyoti Mulimani.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The short facts are these: Defendant No.1 and Plaintiffs are the members of the Joint Hindu Undivided Family. Defendant No.1 is the father of plaintiffs 1 and 2. The land bearing Sy.No.63/5 of Nagashettyhalli village, Kasaba Hobli, Bangalore North Taluk, Bangalore is a Joint Hindu Undivided property and the said property is the ancestral property of defendant No.1 and plaintiffs. The katha of the said property stands in the name of Late Munichannaiah, who was the father of defendant No.1 and grand father of plaintiffs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>Suffice it to mention that defendant No.1 and plaintiffs are the absolute owners of the land bearing Sy.No.63/5 of Nagashettyhalli Village, Kasaba Hobli, Bangalore North Taluk, Bangalore, and they are in joint possession and enjoyment of same. It is averred that revenue sites are formed by defendant No.1 as well as plaintiffs 1 and 2, in the said land. One of such sites is Site No.26. Plaintiffs stated that defendant No.1 is not the absolute owner of the said land and also the sites formed in the land much less the site bearing No.26, which is more fully described in the schedule to the plaint.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>Plaintiffs averred that, defendant No.1 without having absolute right, title and interest over the schedule property has executed a registered gift deed in favor of one Smt.C.N. Leelavathi, W/o.N.Kempanna on 02.01.1981 and she alleged to have been put in possession of the property. It is also averred that in the gift deed there is no recital with regard to the acceptance of the possession by the donee.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>It is the specific case of plaintiffs that they are in peaceful possession and enjoyment of the suit schedule property as members of Undivided Hindu Joint Family. The cause of action arose in the 1st week of April 1993, and also on 13.4.1993 when they came to know about the alleged gift deed obtained the certified copy from the Sub Registrar concerned and contending that defendant No.2 tried to dispossess them from the suit schedule property.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>On these averments’ plaintiffs sought the aid of the Court by filing the suit for a declaration, declaring that the gift deed bearing registration No.13680/1980-81 registered in the Office of the Sub- Registrar, Bangalore North Taluk dated 13.02.1981 executed by defendant No.1 in favor of defendant No.2 as invalid and not binding on them and also for consequential relief of injunction, restraining defendant No.2 or her agents, servant and anybody working under her directions from interfering with plaintiffs possession and enjoyment of the suit schedule property in any manner.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>It was specifically pleaded that the Muniyappa has executed gift deed in her favor and he has parted with possession of the property in her favor and she has been enjoying the same ever since the date of gift in her favor. It is further stated that in pursuance of the gift deed the katha was transferred in her name in the records as per the mutation entry No.109/1980-81 and she has also paid the requisite property tax. Further, she has obtained electricity connection to the shed which was built by her in the suit schedule property.&nbsp; &nbsp;She denied that the plaintiffs are in peaceful possession and enjoyment over the suit schedule property.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>Defendant No.2 further stated that few other sites formed in survey No.63 /5 have been sold by Muniyappa in favor of other persons and those transactions have not been questioned by plaintiffs. It was also pleaded that the attack of the gift deed is barred by limitation. Among other grounds, she has prayed for dismissal of the suit.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>I have heard the contentions urged on behalf of respective parties and perused the records with care. The points that arise for consideration are: -</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space: pre;\">	</span>Whether a gift by a coparcener of his undivided interest in the coparcenary property is valid?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Whether Sri.Muniyappa - defendant No.1 had absolute right to execute the gift in favour of defendant No.2 -a stranger?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>Reverting back to the facts of the case, they have been sufficiently stated. The parties to the lis are Hindus and are governed by the Mithakshara School of Hindu law. The essence of a coparcenary under the Mithakshara school of Hindu law is community of interest and unity of possession. A member of joint Hindu family has no definite share in the coparcenary property, but he has an undivided interest in the property which is liable to be enlarged by deaths and diminished by births in the family. An interest in the coparcenary property accrues to a son from the date of his birth. His interest will be equal to that of his father.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>There is a long catena of decisions holding that a gift by a coparcener of his undivided interest in the coparcenary is void. It is not necessary to refer to all the decisions. Instead, I may refer to the following statement of law in Mayne’s Hindu Law, sixteenth edition., para 406:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>It is now equally well settled in all the states that a gift or devise by a coparcener in a Mithakshara family of his undivided interest is wholly invalid... A coparcener cannot make a gift of his undivided interest in the family property, movable, either to a stranger or to a relative except for purposes warranted by special texts.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>I may also refer to a passage from Mulla’s Hindu Law twentieth edition., Article 256 which is as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>GIFT OF UNDIVIDED INTEREST; - According to Mithakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether, there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make a gift of his undivided interest with the consent of other coparceners.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>Bearing these principles in mind, let me see whether a Hindu coparcener can gift his undivided coparcenary interest in favor of a stranger and the gift deed executed by Muniyappa, the father of plaintiffs in favor of Smt.C.N.Leelavathi a stranger - is valid.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>As already noticed above, parties are Hindus and they are governed by Mithakshara School of Hindu Law. Under Hindu law, coparcener / manager has no absolute power of disposal over joint Hindu family property. The law is well settled that a coparcener / manager cannot gift even his interest to any member of the family or to a stranger unless it is for the pious purposes to a small extent recognized by law. In the present case, Muniyappa has made gift in favor of Smt.C.N.Leelavathi – a stranger. In view of the settled position of law that the gift by a coparcener of his undivided interest cannot be considered as valid. I am of opinion, therefore, that the transfer is not permitted by law and hence, it becomes void.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>While arguing the case, learned counsel Sri.Sukumar Jain submitted that plaintiffs have not substantiated why a coparcener is not entitled to alienate or gift the coparcenary property. He submitted that a Hindu coparcener has every right and authority to make a gift coparcenary property.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>This Court is not inclined to accept the said contention. The reason is, however, obvious. It has been already stated that an individual member of the Joint Hindu family has no definite share in the coparcenary property. By an alienation of his undivided interest in the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>There is long series of decisions laying down the proposition of law that a gift by a coparcener of his undivided interest in the coparcenary property either to a stranger or to his relation without the consent of the other coparcener is void. In the circumstances, it is very difficult to accept the contention that coparcener can make a gift. Therefore, the argument fails.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>I am of the opinion that the law is thus well settled that the manager has not absolute power of disposal over joint Hindu family property. The Hindu law permits him to do so only within strict limits. The scope of the power cannot be extended on the basis of the wide interpretation given to the words “pious purposes” in Hindu Law in a different context. Therefore, a gift to a stranger or relative of a joint family out of love and affection by the manager of the family is void.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>It is perhaps well to observe further that a manager cannot gift even his interest to any member of the family or to a stranger unless it is for the pious purposes to a small extent recognized by law. In the instant case, Muniyappa has made gift of substantial properties to Smt. C.N.Leelavathi - defendant No.2 a stranger.&nbsp; &nbsp;The law is well settled that gift by a coparcener of his undivided coparcenary interest to another coparcener or to stranger without the consent of other coparcener is void. Accordingly, point Nos.1 and 2 are answered.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\"><br></font>Insofar as limitation is concerned, learned counsel for appellant vehemently urged that the suit is time barred as the gift is executed in the year 1981 and plaintiffs have filed the suit in the year 1993. On behalf of defendant No.2 it has been suggested that Article 109 of the Limitation Act should apply as it is a suit by Hindu to set aside his father alienation of ancestral property and if that Article applies, undoubtedly, defendant No.2 would have a good answer to the objection on the score of limitation, as he would have 12 years under that Article when the exclusion become known to the plaintiffs. But I am of opinion that Article 109 cannot apply. Plaintiffs have pleaded that they came to know about the alleged gift deed only in the year 1993. The cause of action according to them arose then. A suit for declaration is to be filed within three years from the date of the accrual of the cause of action, since the suit is filed within three years from the date of accrual of the cause of action. Hence, the contention that the suit is barred by time is baseless. The argument fails.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>On the other hand, the decisions relied upon by learned counsel for plaintiffs are in relation to the proposition of the law that gift by a coparcener of his undivided coparcenary interest to another coparcener or to a stranger without the consent of other coparcener is void. In my opinion, these decisions are squarely applicable to the facts and circumstances of the case.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>In applying the law, as I have endeavored to summarize it, to the case that - gift by a coparcener of his undivided coparcenary interest to another coparcener or to stranger without the consent of other coparcener is void.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>In the last resort, counsel for appellant urged that operative portion of the judgment is not proper. In my opinion, there is nothing in the facts proved to justify the interference by this Court. It is perhaps well to observe that plaintiffs have accepted the judgment and decree as decreed by the trial Court. The contention that the operative portion of the judgment and decree is not proper cannot be accepted on behalf of defendant No.2 - appellant.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>The appeal fails and is dismissed. Parties, however, to bear their respective costs in this appeal.</b></p>', 'b81d386eacd7600014101881ea2eff3b.JPG', 'a8293937cbd7dc7cb8158e4b62d477a6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-28', 1, '', '', '2023-06-28 13:31:05', '2023-06-28 13:31:05'),
(3132, 'UsSweY6z5jFteKniTgjGVThuQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Courts exercising power under Section 482, Cr.P.C. should not interfere if the case involves disputed questions of fact as the Court won’t become a fact-finding authority at the stage of crime or analysis of the charge sheet. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Seetharam Vs State and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 7524 of 2021 decided on 26 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner/accused No.3 has knocked at the doors of this Court calling in question order dated 27-04-2021 passed by the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">XXIII Additional City Civil Sessions Judge and Special Judge for Prevention of Corruption Act, Bengaluru City in Special C.C.No.656 of 2021 taking cognizance of offences punishable under Sections 13(1)(d) and 13(1)(e) r/w. 13(2) of the Prevention of Corruption Act, 1988 (‘the Act’ for short) and Section 109 of the IPC.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Facts adumbrated, are as follows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner claims to be a prominent member of the Ramaiah Education Society, Vice-President of the Gokula Education Foundation, Director of M.S.Ramaiah Institute of Technology and several M.S. Ramaiah Institutions. He further claims to be a philanthropist engaged in several charitable activities. The petitioner was also an elected representative from the Malleshwaram Constituency, Bengaluru. Proceedings come to be initiated against one T.N. Chikkarayappa, accused No.1 in the year 2021 for offences punishable under the provisions of the Act. Accused No.1 is said to have amassed wealth and acquired property in his name and the name of the family to the tune of `3,58,30,212.13/-. The investigation against accused No.1 leads the petitioner - accused No.3, in the subject petition.&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. It is the case of the prosecution qua the present petitioner, that on 02-04-2012, M.S.Ramaiah Education Society issued a cheque drawn on Karnataka Bank for a sum of `50,00,000/- in favour of M.S. Ramaiah Medical College. On 05.12.2016, a crime comes to be registered in Crime No.26 of 2016 alleging offences punishable under Sections 13(1)(d), 13(1)(e) r/w. 13(2) of the Act and investigation was taken up against accused No.1. The payment was made by M.S. Ramaiah Education Society to M.S. Ramaiah Medical College in favour of the daughter of accused No.1 in a sum of `50,00,000/- as afore-quoted. It is then, the Lokayukta issued notice to M.S.Ramaiah Education Society to provide details regarding the payment of `50/- lakhs, on 13.04.2018. The Society submits a reply on 26.04.2018, to the said notice contending that it was an interest free loan that was granted to the daughter of accused No.1 for her studies as she was not eligible for any scholarship. Another notice comes to be issued by the Lokayukta on 27.04.2018 to furnish complete details as to how the amount was paid as interest free loan to the daughter of accused No.1. The reply of the petitioner then was that the Society had become&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">defunct and therefore, no records could be traced. The Lokayukta then completes the investigation and files a charge sheet in the concerned Court in Special C.C.No.656 of 2021. The learned Special Judge takes cognizance of the offences against accused Nos.1 to 5, which included the petitioner as accused No.3.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The afore-narrated facts are not in dispute. They require to be reiterated with certain elaboration. It is alleged that accused No.1, one T.N. Chikkarayappa who at the relevant point of time was working as Managing Director at the Cauvery Neeravari Nigam Limited and had served the State as a public servant from 02-11- 1987 till 05-12-2016. The date 05-12-2016 is quoted for the reason that a crime comes to be registered against accused No.1 for amassing wealth disproportionate to his known sources of&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ncome punishable under Section 13(1)(d), 13(1)(e) r/w. 13(2) of the Act. The petitioner was not named then. A crime in Crime No.26 of 2016 was registered and investigation was conducted. During the course of investigation and scrutiny of documents, it was noticed that `50/-lakhs was paid towards tuition fee of the daughter of accused No.1. The payment was routed from the Society to the Medical College.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">10. The submission of the learned counsel for the petitioner that the Society is an independent entity; it has now become defunct and all these actions are attributable to the Society and not to the petitioner as an individual would all require evidence before the concerned Court. The signature in the cheque for `50/- lakhs is that of the petitioner. If he is the signatory as President of the Society, how an amount of `50/- lakhs was routed; why `50/- lakhs was routed and as a special case only the daughter of accused No.1 was chosen to grant educational loan interest free, no satisfactory explanation is furnished. All this would be in the realm of disputed questions of fact. In a given case, if such a case is shrouded with seriously disputed questions of fact, this Court would not interfere in its jurisdiction under Section 482 of the Cr.P.C. In the circumstances it becomes apposite to refer to the judgment of the&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Apex Court in the case of KAPTAN SINGH v. STATE OF UTTAR PRADESH , wherein the Apex Court holds as follows:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“9.1. At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 CrPC has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 CrPC quashed the criminal proceedings, by the time the investigating officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC and even the learned Magistrate also took the cognizance.</span><span style=\"font-size: 12pt;\">&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">If the petition under Section 482 CrPC was at the stage of FIR in that case the allegations in the FIR/complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation.&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9.2&nbsp;</span>It is further observed that inherent jurisdiction under Section 482 CrPC though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in the section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 CrPC.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>12. Therefore, the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.\"</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Apex Court holds that Courts exercising jurisdiction under Section 482 of the Cr.P.C. should adopt a judicial hands off if the case revolves around disputed questions of fact as the Court would not become a fact finding authority at the stage of crime or analysis of the charge sheet.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. The other submission of the learned counsel for the petitioner is that, the order taking cognizance by the learned Special Judge dated 27-04-2021 suffers from non-application of mind, is to be rejected as it is a detailed order of taking of cognizance and against the petitioner it is the facts narrated hereinabove that led to taking of cognizance for offence under Section 109 of the IPC. Therefore, none of the grounds urged by the learned counsel for the petitioner would merit any acceptance and non-acceptance of grounds would lead to dismissal of the petition.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) The petition lacking in merit stands dismissed.&nbsp;</b></span></p>', 'ef681c030306c6cda2e355685f847852.jpeg', '88c9eaa1672104d68b3a56822560a80b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-30', 1, '', '', '2023-06-30 10:58:35', '2023-06-30 10:24:58');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3128, 'GtmGAfqB4XC79sMVZOQUTmBy5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'KathaSangam of Corruption. “It is high time the menace of corruption is nipped in the bud by making the bribe giver susceptible for prosecution like the bribe taker”. Karnataka High Court rejects plea of accused in Madal Virupakshappa case. ', '<p><b>IN THE HIGH COURT OF KARNATAKA AT BENGALURU\r\n<br>DATED THIS THE 26TH DAY OF JUNE, 2023\r\n<br>BEFORE\r\nTHE HON\'BLE MR. JUSTICE M. NAGAPRASANNA\r\n<br>CRIMINAL PETITION No.3371 OF 2023\r\nC/W\r\n\r\nCRIMINAL PETITION No.3314 OF 2023\r\n<br>IN CRIMINAL PETITION No.3371 OF 2023\r\n<br>BETWEEN:\r\n1 . SRI KAILASH S. RAJ AND OTHERS  vs STATE OF KARNATAKA AND ANOTHER.</b></p><p><b>Both these petitions call in question registration of crime in\r\nCrime No.15 of 2023 for offences punishable under Sections 7(b),\r\n7A, 8, 9 & 10 of the Prevention of Corruption Act, 1988 (hereinafter\r\nreferred to as ‘the Act’ for short) and pending before the XXIII\r\nAdditional City Civil and Sessions Judge and Special Court under\r\nPrevention of Corruption Act, Bengaluru. Criminal Petition No.3314\r\nof 2023 is preferred by accused Nos. 2 and 3 – one Albert Nicolas\r\nand Gangadhar. Criminal Petition No.3371 of 2023 is preferred by\r\none Kailash S.Raj, Vinay S.Raj and Chetan Marlecha who are\r\ndepicted to be owners of M/s Karnataka Aromas Company and are\r\narrayed as accused No.5 in the aforesaid crime.</b></p><p> </p><p><b>\r\n3. The gist of the complaint is that accused No.1 calls the\r\ncomplainant at his personal office in Crescent Road and negotiates with the price that is to be paid as alleged bribe for clearance of the\r\nbills in future. It is alleged that initially a sum of `60/- lakhs had\r\nbeen demanded from the hands of the first informant to ensure that\r\ntenders are accepted and the amount released in their favour\r\nwithout any interference. It is further alleged that accused No.1\r\nagreed to receive a sum of `33/- lakhs and `48/- lakhs on two\r\ndifferent dates which was on a consensus. It is also averred in the\r\ncomplaint that against the said assurance a particular quote was to\r\nbe given by the first informant at `815/- per kg. for supply of 5100\r\nkgs. of Guiacwood oil and the other participant in the tender would\r\nquote at `4,349/- per kg. for the supply of 29520 kgs. of Musk to\r\nthe Karnataka Soaps and Detergent. </b></p><p><b>9. The learned senior counsel representing the petitioners in\r\nCrl.P.No.3371 of 2023 would vehemently contend that the\r\npetitioners are not even named in the FIR. It is by their designation\r\nbeing partners of a Company, they are arrayed as accused.\r\nTherefore, they are not aware either they are accused No.5 or\r\naccused No.6. The only allegation that the petitioners are dragged  in is that accused Nos. 2, 3 and 4 are employees of accused No.5,\r\nthe Company.</b></p><p><b>15. In terms of the facts narrated hereinabove, the issue in\r\nthe lis forms a story in a story. The demand or acceptance of the\r\namount of bribe concerning the first informant is clearly brought out\r\nas it concerns the issue of tender between the two companies.\r\nThat forms the issue in Crime No.13 of 2023 and that is not the\r\nissue in the lis. The issue in the present lis is concerning Crime\r\nNo.15 of 2023. As observed hereinabove, this is a picture in a\r\npicture. Accused Nos. 2 and 3 in the case at hand were caught at\r\nthe time when the search was conducted in connection with Crime\r\nNo.13 of 2023. They were admittedly caught holding two bags of\r\ncash of `45/- lakhs each and were sitting in the personal office of\r\naccused No.1, son of the Chairman of Karnataka Soaps and Detergents Limited and they are the office bearers of Karnataka\r\nAromas Company, a commercial organization. The question is why\r\nwere they sitting in the personal office of accused No.1, a public\r\nservant and why were they sitting with bags containing cash of\r\n`45/- lakhs each waiting to see accused No.1 in his personal office,\r\nwould become a matter of investigation. At the time they were\r\nquestioned and bags seized, their answers were that they were\r\noffice bearers of accused No.5/company and wanting to meet\r\naccused No.1. They were not aware of any other fact. It is,\r\ntherefore, allegations under Sections 8, 9 and 10 are laid against all\r\nthe accused in the case at hand. Sections 8, 9 and 10 of the Act\r\n(supra) would become applicable to accused Nos. 1 to 5 in\r\nconnection with accused No.1, a public servant. Therefore, it would\r\nprima facie fall within Section 8(1)(ii) to reward a public servant for\r\nimproper public duty. Section 9 deals with offence relating to\r\nbribing a public servant by a commercial organization. The accused\r\nin these petitions are office bearers of Karnataka Aromas Company,\r\na commercial organization and they are alleged of wanting to bribe\r\naccused No.1, son of the Chairman Mr. Maadal Virupaksha on\r\nbehalf of whom the accused has allegedly demanded the aforesaid amount. Therefore, a commercial organization was wanting to bribe\r\na public servant. </b></p><p><b>19. The learned Special Public Prosecutor for the\r\nrespondents/Lokayukta Sri. B.B.Patil has placed on record the\r\ndocuments of investigation. There are plethora of whatsapp chats\r\nbetween accused No.1 and the other accused, the narration of\r\nwhich will seriously prejudice the case of the accused No.1 and\r\ncould be that of the petitioners. Therefore, I refrain from referring\r\nto them, at this stage, as they are a matter of investigation or trial,\r\nas the case would be. </b></p><p><b>20. Prima facie, if the story narrated by the learned senior\r\ncounsel is accepted, it would be accepting a screenplay of a\r\npotboiler without letting investigation to be conducted into such\r\ningredients, as the story, within a story twined is interesting to listen, it is a katha sangama but, if on the story the petitioners\r\nare left of the hook, the very object behind the amendment and\r\nsubstituting Sections 8, 9 and 10 would be rendered redundant. It\r\nis high time the menace of corruption is plugged and nipped\r\nin the bud by making the bribe giver susceptible for such\r\nprosecution, like the bribe taker. </b></p><p><b>21. It is in public domain, to notice that India is a signatory\r\nto the United Nations Convention against corruption (UNCAC).\r\nArticles 5 to 14 of the said Convention deal with prosecution for\r\ncorruption. It would mandate that corrupt can be prosecuted after\r\nthe fact but first and foremost it requires prevention. Therefore, the\r\nentire chapter was dedicated to prevention with measures directed\r\nat both public and private sector. It is based upon these articles\r\narrived at the convention, certain measures were sought to be\r\ntaken to arrest corruption. One such step by the Parliament was\r\namendment that comes about on 26-07-2018 to the Prevention of\r\nCorruption Act, making the giver and the taker stand on the\r\nsame pedestal of prosecution.</b></p><p><b>22. It is beyond any cavil of doubt that corruption has\r\npercolated to every nook and corner of public life in the country and\r\nhas become an issue in all walks of life posing a grave danger to\r\nthe concept of constitutional governance. Corruption emerges in\r\nvarious hues and forms and it is therefore, unfathomable. </b></p><p><b>The observation of the Apex Court is germane to this case as well,\r\nas the entire facts narrated hereinabove are shrouded with\r\ncorruption, on all the fours of the facts. In the teeth of the  aforesaid facts, reference is being made to the writer and\r\nphilosopher of the USA, Ayn Rand, who on corruption would say;\r\n</b></p><p><b>“When the law no longer protects you from the\r\ncorrupt, but protects the corrupt from you, you know the\r\nnation is doomed.”\r\n (Emphasis supplied)\r\nIt is therefore not the stage to spread a protective umbrella of\r\nlaw to the petitioners.</b></p><p><b>\r\n\r\n 23. Wherefore, for all the aforesaid reasons, finding no merit\r\nin the petitions, the petitions stand rejected.\r\n Pending applications, if any, would also stand disposed, as a\r\nconsequence.  </b><br></p>', '170b8dbe7a84f0a5d8d49f45c275006d.jpg', 'e7379b2b66a2b8ace7665432599f7f8e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-28', 1, '', '', '2023-06-28 17:47:57', '2023-06-28 17:50:08'),
(3133, 'N22APKkLzsVsJbXAWZm7DZujk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Reopening assessment under Section 148 IT Act. Reasons for issuing notice once communicated and objections received, the officer is duty bound to adjudicate upon the same before reassessment order is passed. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Hewlett Packard Financial Services (India) Pvt Ltd Vs Deputy Commissioner of Income Tax and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 2392 of 2019 decided on 1 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S Sunil Dutt Yadav. &nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The 2nd respondent had issued notice under Section 143(2) of the Income Tax Act, 1961 (\'the Act\') which was responded to by the petitioner and an order has been passed under Section 143(3) of the Act. Subsequently, petitioner has received a notice on 31.03.2018 under Section 148 of the Act by the 2nd respondent proposing to reassess the income of petitioner for the assessment year 2011-12. Petitioner has filed its response to the aforesaid notice objecting to the initiation of proceedings and the petitioner had requested the 2nd respondent to furnish copy of the reasons recorded for initiating the proceedings. The 2nd respondent has furnished copy of the reasons recorded for initiating the proceedings and sanction granted by the Principal Commissioner of Income Tax for issuing notice by way of Annexures-F and G.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>The 1st respondent subsequently issued a notice under Section 143(2) of the Act calling upon the petitioner to furnish documents in support of the returns filed by him, to which the petitioner had filed its objections to the initiation of reassessment proceedings. The 1st respondent has passed an order under Section 143(3) read with Section 147 of the Act re-computing the total income of the petitioner.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>It is not in dispute that the Apex Court in the case of GKN Driveshafts (supra) has laid down the procedure to be followed when a notice under Section 148 of the Act is issued. The procedure that is envisaged is as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\"><i>\"We see no justifiable reason to interfere with the order under challenge. However, we clarify that when a notice under Section 148 of the Income tax Act is issued, the proper course of action for the noticee is to file return and if he so desires, to seek reasons for issuing notices. The assessing officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the assessing officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons have been disclosed in these proceedings, the assessing officer has to dispose of the objections, if filed, by passing a speaking Order before proceeding with the assessment in respect of the abovesaid five assessment years.\"</i></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>In the present case, it needs to be kept in mind that the proceedings under Section 148 will have the effect of reopening the assessment. It is in this context, the Court has to decide while construing the effect of non- following of the procedure under GKN Driveshafts (supra). Admittedly, the reasons for reopening having been communicated as per Annexure-F and reply to such reasons having been furnished by the petitioner, the Assessing Officer is bound to dispose off the same by passing a speaking order before proceeding to pass an order under Section 143(3) read with Section 147 of the Act. In light of the limitation expiring on 31.12.2018, the practical difficulties of the Assessing Officer could be of no reason to condone the non-adherence to the procedure in GKN Driveshafts (supra). The effect of non-following such procedure has been dealt with by the judgment of the Division Bench of this Court in Deepak Extrusions, wherein the Division Bench of this Court has rightly held that the mandatory procedure of disposal of objections by the Assessing Officer not having been followed, the order of assessment cannot be sustained. If that were to be so, the assessment order issued under Section 143(3) read with Section 147 requires to be set aside and the question of issuing notice under Section 148 would not arise.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>The contention of the learned counsel for the revenue relying on the judgment of the Madras High Court in the case of Home Finders (supra) cannot be accepted in light of the declaration of the Division Bench of this Court in the case of Deepak Extrusions stating that the procedure prescribed in GKN Driveshafts (supra) is a mandatory procedure which would vitiate the assessment order and the same having been concurred with in another judgment of the Division Bench in W.A.No.919/2019 disposed off on 24.01.2023. It is impermissible for this Court to accept the contention of the revenue and pass orders contrary to that of the Division Bench orders referred to above. Even otherwise, a perusal of the observations made by the Apex Court in GKN Driveshafts (supra) clearly records a finding that the Assessing Officer is bound to dispose off the objections filed by passing a speaking order.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space: pre;\">	</span>Accordingly, the order of reassessment dated 30.12.2018 vide Annexure-K is set aside</b></font></span></p>', 'c73f14838ab92b8549585c73413fd320.JPG', 'b3e4d5f2d95d11ff58863968a2b0dc9d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-30', 1, '', '', '2023-06-30 11:00:07', '2023-06-30 06:43:17'),
(3134, 'AqJHrMMCBKOoldjx8oCmaX20l', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for declaration of the title based on fraud, coercion and misrepresentation shall be filed within three years from the date of registration known to the plaintiff or when the right to sue first accrues. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shivanandappa &nbsp;Vs Hanumantappa Thr LRS &nbsp;and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>RSA 918 of 2006 decided on 17 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.S. Hemalekha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>The relevant brief facts of the case are as under: Plaintiff is the owner of the suit schedule properties and the property bearing RS No.85/1, measuring 1 acre 33 guntas, that the plaintiff was working as a Secretary and defendant No.2 was the Chairman of Wadenapur GSS Limited Society upto 1972 and that the plaintiff was under the control of defendant No.2 when the plaintiff was working as a Secretary, that criminal proceedings were initiated against the plaintiff and defendant No.2 for misappropriation of funds in the society, defendant No.2 taking advantage of the situation got sale deed registered on 10.11.1972 without valid sale consideration in respect of the suit schedule properties and RS No.85/1 in favour of defendant No.1, who is none other than the son of defendant No.2, that due to fear, implicated by defendant No.2, the plaintiff has executed the sale deed in favour of defendant No.1 and contended that the said sale deed is not genuine as it was never intended to be executed and as such, the registered sale deed executed is null and void and is a forged one and that the cause of action arose in the year 1975 when the defendants forcibly obtained possession of the suit schedule properties.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>The<span style=\"white-space: pre;\">	</span>defendants, pursuant to the summons issued by the trial Court, appeared and defendant No.2 filed his written statement, the same being adopted by defendant No.1.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>The defendants denied the plaint averments and contended that the plaintiff has voluntarily executed the sale deed in favor of defendant No.1 for a valuable sale consideration of Rs.14,000/-. The contention of the plaintiff about the criminal proceeding against the plaintiff and defendant No.2 is admitted. However, the contention insofar as obtaining of sale deed by force is specifically denied. The defendants contend that the suit schedule properties were under the ownership of the plaintiff, the plaintiff had debts and to discharge the debts, a registered sale deed was executed in favour of defendant No.1 and thus contended that after the lapse of more than twelve years, now the plaintiff cannot contend that the said sale deed was obtained by force, undue influence, misrepresentation and fraud. It is also specifically contended by the defendants that the suit of the plaintiff is barred by limitation.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>This Court, vide order 05.06.2006, has admitted the appeal on the following substantial questions of law:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space: pre;\">	</span>Whether the first appellate Court justified in holding that the suit is not barred by limitation</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Whether the First Appellate Court was justified in holding that Ex.P.1 was obtained by coercion, fraud and misrepresentation?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Whether the First Appellate Court has rightly appreciated the evidence on record?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\"><br></font>21.<span style=\"white-space: pre;\">	</span>Re: First substantial question of law: i) Whether the first appellate Court justified in holding that the suit is not barred by limitation?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>26.<span style=\"white-space: pre;\">	</span>The suit being for declaration of the title based on fraud, coercion and misrepresentation as per Articles 56 and 58 the suit ought to have been filed within three years from the date of registration known to the plaintiff or when the right to sue first accrues. A perusal of the pleadings and evidence of PWs.1 to 4 establishes the fact that the execution of the sale deed was very much within the knowledge of the plaintiff and no initiation was made by the plaintiff either by filing any police complaint against the defendants on the ground that the sale deed was obtained by coercion, fraud and misrepresentation. This having not been done and no action being forthcoming on behalf of the plaintiff, the plaintiff after a prolonged period of more than 12 years cannot contend that the sale deed executed on 10.11.1972 is obtained by fraud, coercion and misrepresentation. In light of Articles 56 and 58 of the Limitation Act, the suit of the plaintiff is barred by limitation and accordingly, substantial question of law is answered against the plaintiff. It is also relevant to note here that the plaintiff to come within the purview of limitation sought to contend that the defendant has illegally taken possession in the year 1975 and if the year of dispossession is taken into account, then as per Article 65, the suit is filed within 12 years. This contention of the plaintiff is not sustainable for the reasons that no materials are forthcoming to show that the plaintiff was dispossessed in the year 1975, on the contrary, Ex.P.1 the sale deed depicts that the possession was delivered as on the date of registration itself and the documents produced along with I.A. No.1/2022 by the appellant in the present appeal, which is not disputed by the respondent/plaintiff, shows the entry of the name of the appellant/plaintiff in the revenue records under the execution of the sale deed dated 10.11.1972 in the year 1972 itself.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>27.<span style=\"white-space: pre;\">	</span>The evidence of DW.2 which is been relied upon by the plaintiff to contend that the suit is within limitation as DW.1 in his evidence contended that he owns the properties since 14 years and considering the date of evidence, 14 years would be that the plaintiff was in possession till 1976. This contention of the plaintiff is not acceptable for the reason that stray sentences in the evidence of DW.2 cannot be considered to make the suit well within limitation. The plaintiff has to stand or fall on his pleadings and not on the weaknesses of the defendant. Given the undisputed fact in totality, the period of limitation needs to be considered from the date of execution of the registered sale deed dated 10.11.1972 and the contention of the plaintiff that Article 65 applies to the present facts is not acceptable as the Articles to be applied are Articles 56 and 58 of the Limitation Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>28.<span style=\"white-space: pre;\">	</span>The judgment relied upon by the plaintiff- respondent in the case of Electronics and Control stated supra, does not apply to the facts and circumstances of the present case and also since as per Ex.P1 the registered sale deed mentions the delivery of possession in favour of defendant No.1 on 10.11.1972 itself and thus, the plaintiff without any specific pleading and material cannot contend that the plaintiff was dispossessed in the year 1975.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>29.<span style=\"white-space: pre;\">	</span>For the reasons stated supra, the suit of the plaintiff is barred by limitation and the first substantial question of law is answered against the plaintiff.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>30.<span style=\"white-space: pre;\">	</span>Re: Second and Third Substantial question of law:<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>32.<span style=\"white-space: pre;\">	</span>The fraud, coercion and misrepresentation as pleaded by the plaintiff of such nature need to be established beyond reasonable doubt and the plaintiff has to prove that there was a motive by the defendants to obtain the sale deed by fraud. The evidence as it stood is very little reliable to connect with the contention of the plaintiff that defendant No.2 by coercion, fraud and misrepresentation has got the execution of the sale deed in favour of defendant No.1 without any valuable consideration. It is further contended that the amount mentioned to the extent of Rs.14,000/- in the sale deed is not paid by defendant No.2 as there was no debt incurred by the plaintiff. It is contended that because of the non- passing of consideration amount as per the sale deed at Ex.P1 the agreement is void. The judgment relied upon the learned counsel for the respondent/plaintiff in Kewal Krishan stated supra is not applicable as in the said judgment the facts reveal that there was no sale consideration or payment at any future date and there is no quarrel in respect of the settled proposition that without payment of the price and if the document does not provide for payment of the price at a future date it is not a sale at all in the eye of law and such sale is void.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>33.<span style=\"white-space: pre;\">	</span>The<span style=\"white-space: pre;\">	</span>Apex court in Vidyadhar<span style=\"white-space: pre;\">	</span>case stated supra at para Nos.35, 36, 37 and 38 held as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><i><b>\"35. Even if the findings recorded by the High Court that the plaintiff had paid only Rs.500 to defendant 2 as sale consideration and the remaining amount of Rs.4500 which was shown to have been paid before the execution of the deed was, in fact, not paid, the sale deed would not, for that reason, become invalid on account of the provisions contained in Section 54 of the Transfer of Property Act, 1882 which provide as under: \"54. \'Sale\' is a transfer of ownership in exchange for a price paid or promised or part- paid and part-promised. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.\"</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><i><b>36.<span style=\"white-space: pre;\">	</span>The definition indicates that to constitute a sale, there must be a transfer of ownership from one person to another, i.e., transfer of all rights and interests in the properties which are possessed by that person are transferred by him to another person. The transferor cannot retain any part of his interest or right in the transfer of ownership has to be for a \"price paid or promised or part-paid and part-promised\". Price thus constitutes an essential ingredient of the transaction of sale. The words \"price paid or promised or part-paid and part-paid and part- promised\" indicate that actual payment of the whole of the price at the time of the execution of the sale deed is not a sine qua non to the completion of the sale. Even if the whole of the price is not paid but the document is executed and thereafter registered, if the property is of the value of more than Rs.100, the sale would be complete.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><i><b>37.<span style=\"white-space: pre;\">	</span>There is a catena of decisions of various High Courts in which it has been held that even if the whole of the price is not paid, the transaction of sale will take effect and the title would pass under that transaction. To cite only a few, in Gayatri Prasad v. Board of Revenue it was held that non-payment of a partition of the sale price would not affect the validity of the sale. It was observed that part-payment of consideration by the vendee itself proved the intention to pay the remaining amount of the sale price. To the same effect is the decision of the Madhya Pradesh High court in Sukaloo v. Punau.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><i>38.<span style=\"white-space: pre;\">	</span>The real test is the intention of the parties. To constitute a \"sale\", the parties must intend to transfer the ownership of the property and they must also intend that the price would be paid either in praesenti or in future. The intention is to be gathered from the recital in the sale deed, the conduct of the parties and the evidence on record.\"</i><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>Thus, applying the principles enunciated in Vidyadhar\'s case stated supra, the transaction and contents of the Sale document having been accepted, the plaintiff is not entitled to the relief as sought for and given the present facts the consideration amount is been mentioned in the sale deed Ex.P.1 and the amount to be paid on a future date is also mentioned. In light of this, the judgment in Kewal Krishan stated supra is in another context and not applicable to the present facts and circumstances of the case.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>35.<span style=\"white-space: pre;\">	</span>Section 25(3) of the Indian Contract Act contemplates that a promise to pay even a time-barred debt would be valid and enforceable provided it is made in writing and signed by the person to be charged therewith. The plaintiff contends that at the time of execution of the sale deed there was no passing of valid consideration amount by the defendant in favor of the plaintiff and it was just a promise made by the defendant to pay the debts of the plaintiff. It is contended that there was a loan of Rs.1,365/- against the plaintiff but the sale deed showed the consideration of Rs.14,000/- and the same was not paid to the plaintiff. Accordingly, in light of Section 25 of the Indian Contract Act and given the settled proposition of law that inadequacy of amount in an agreement cannot make the document void, this court is of the considered view that the sale deed at Ex.P.1 is not a void document.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>36.<span style=\"white-space: pre;\">	</span>The First Appellate Court went on an assumption that Rs.14,000/- which was to be paid by defendant No.2 to the society was not paid, when it is nobody\'s case that the said amount is not paid, it is the contention of the plaintiff that there was no debt payable to the society or anybody else as on the date of the sale deed dated 10.11.1972 if this contention of the plaintiff is accepted, it would be relevant to note that the plaintiff has not taken any steps to challenge the sale deed when admittedly the registration and contents of the sale deed were well within the knowledge of the plaintiff. This being so, the First Appellate Court without appreciating the pleadings, evidence and material on record has concluded that the sale deed is obtained by fraud, coercion and misrepresentation. Given the reasons, stated supra the First Appellate Court was not justified in holding that Ex.P.1 was obtained by coercion, fraud and misrepresentation.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>37.<span style=\"white-space: pre;\">	</span>Accordingly, the substantial questions of law (ii) and (iii) framed are answered in the negative and against the plaintiff.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>(i)<span style=\"white-space: pre;\">	</span>The appeal filed by the defendant is hereby allowed.</b></span></p>', 'd86e087386063988c1795f5ecdffc735.JPG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-30', 1, '', '', '2023-06-30 11:01:48', '2023-06-30 07:59:07'),
(3146, '6QAQe1f4r75szw4EN6RbUP4IX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Word \'permitted\' is not an order under Section 155 (2) Cr.P.C. Registration of FIR, in the absence of valid order as specified under Section 155 (2) of Cr.P.C. stands vitiated. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Basavarajaswamy Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 200502 of 2023 decided on 5 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>The petitioner - accused No.2 has been charge sheeted for the offence punishable under Section 78 (3) of the Karnataka Police Act, alleging that, On 24.11.2022 on receiving credible information the police sub-inspector Devadurga Police Station conducted raid along with the panchas and police constables at Zahiruddin Pasha Circle, wherein the accused No.1 was loudly announcing that one rupee would fetch eighty rupees and he was writing the Matka numbers. On apprehending accused No.1, he revealed that he was writing Matka numbers on behalf of accused No.2. Police based on the statement of accused No.1, apprehended the accused No.2 and recovered a sum of Rs.1,120/- in cash, and after investigation laid the charge-sheet against accused Nos.1 and 2 for the offence punishable under Section 78 of the Karnataka Police Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>04.<span style=\"white-space: pre;\">	</span>The accused No.2 is implicated on the basis of voluntary statement of accused No.1. Section 114 illustration (b) of the Indian Evidence Act, 1872 specifies that the statement of an accomplice is unworthy of credit, unless he is corroborated in material particulars. In the absence of any corroborative materials, the charge-sheet laid only on the basis of statement of co-accused i.e., accused No.1, is impermissible.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>05.<span style=\"white-space: pre;\">	</span>The offence punishable under Section 78 (3) of the Karnataka Police Act, is non-cognizable. On a requisition sent by the police, the learned Magistrate endorsed \"permitted\".</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>06.<span style=\"white-space: pre;\">	</span>This Court in the case of Vageppa Gurulinga Jangaligi v State of Karnataka, reported in 2019 SCC OnLine Kar 2708, at Para No.20 has held as under :-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>\"20 The word “permitted” is not an order under Section 155 (2) of Cr.P.C. Guidelines for how to mark an endorsement as “permitted” on a police requisition.\"</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>07.<span style=\"white-space: pre;\">	</span>In view of the ratio enunciated in the aforesaid case, the word \'permitted\' is not an order under Section 155 (2) Cr.P.C. Hence, the registration of the FIR, in the absence of valid order as specified under Section 155 (2) of Cr.P.C. culminating into taking cognizance of the aforesaid offence by the learned Magistrate stands vitiated. Hence, the continuation of criminal proceedings against the petitioner will be an abuse of process of law.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>I.<span style=\"white-space: pre;\">	</span>The Criminal Petition is allowed. </b></font></span></p>', '3a3449d65ae1d384ccb4f2c3a73bf4a4.jpeg', '1ee71b523c1c25a867564cbf30b9ad66.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-03', 1, '', '', '2023-07-02 18:01:59', '2023-07-03 13:31:46');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3129, 'PlRAY4tSkUxJgSCmDcrmBR3zi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for partition. Once a Plaintiff contends that he has separated from the joint family, properties bought subsequent to the said separation cannot be included in the suit for partition filed subsequently. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>H.S. Krishnaiah Vs H.L. Somashekhar and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 8487 of 2017 decided on 7 October 2021.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>I.A.No.5 under Order VI Rule 17 read with Section 151 of CPC for amendment of the Plaint was filed to include 13 properties in the plaint schedule. The said application came to be allowed by the trial Court vide its order dated 09.02.2017 which has been impugned in the present proceedings.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>The trial Court while allowing the said application came to a conclusion that</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>4.1.<span style=\"white-space: pre;\">	</span>The Court should be liberal in allowing the amendment to meet the ends of justice to decide the controversy in question and to avoid multiplicity of proceedings and driving the parties to the subsequent litigations.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>4.2.<span style=\"white-space: pre;\">	</span>Whether the properties are the joint family properties or not is a matter of evidence and as such, merits could not be decided at the time of considering and/or allowing the application for amendment since the Plaintiff has contended that the properties are the joint family properties, the same would have to be taken on face value, the suit being one for partition, all the joint family properties are required to be added to the Plaint since a suit for partial partition is not maintainable.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>4.3.<span style=\"white-space: pre;\">	</span>The amendment if allowed, no hardship or injury would be caused to the Defendants. The proposed amendment being only to include certain properties neither changes the cause of action nor does it alter the nature of the suit. If the properties are not included in the Plaint, another suit for partition can not be filed by the Plaintiffs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>4.4.<span style=\"white-space: pre;\">	</span>The amendment being necessary for determining the real question in controversy between the parties, the application came to be allowed. The trial Court imposed a cost of Rs.3,000/- on the ground that the suit having been filed in the year 2005 and the application having been filed in the year 2010 was not prosecuted by the Plaintiffs until the year 2017. Therefore, there is a delay in prosecuting the matter.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>The points that would arise for determinations by this Court are: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space: pre;\">	</span>Whether once a Plaintiff were to contend that he has separated from the family, could properties bought subsequent to the said separation be included in the said Plaint for partition filed subsequently that too by way of an amendment?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Whether an amendment to include properties bought subsequent to the partition can be allowed without there being suitable averment made in the Plaint<span style=\"white-space: pre;\">	</span>as regards reunion<span style=\"white-space: pre;\">	</span>between the family members? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Whether inclusion of certain properties in a plaint can be sought for without making specific averment and allegations that they are joint family properties acquired from and out of the joint family funds? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>Whether merely because Plaintiff contentions that the properties are joint family properties are they required to be included in the Plaint by way of an amendment? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>What Order? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>Answer to Point No.1: Whether once a Plaintiff were to contend that he has separated from the family, could properties bought subsequent to the said separation be included in the said Plaint for partition filed subsequently that too by way of an amendment?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>11.4.<span style=\"white-space: pre;\">	</span>Plaintiff ceased to be a member of the joint family with effect from 1.8.1965 and the remaining joint family came to an end on 19.9.1973 when Defendant nos. 1 to 3 separated from the property. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>11.5.<span style=\"white-space: pre;\">	</span>The allegation of the Plaintiff at para 8 is that the 5th Plaintiff after being released from the joint family had acquired several properties. At para 9 of the Plaint, it is stated that Defendants No.1 to 3 in active collusion with their respective children and in active collusion with Defendant No. 4 exercising undue influence had obtained certain signature on papers without allowing 5th Plaintiff to read and understand or making 5th Plaintiff to understand entire papers which were stated to be a release deed of the properties which were situated in Cubbonpet, Bangalore.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>11.6.<span style=\"white-space: pre;\">	</span>It is contended that the various anomalies in the execution of the said Document inasmuch as the documents are stated to be executed in Tiptur and presented for registration in Bangalore, the timeframe prescribed therein would not match the actual time frame to travel from Tiptur to Bangalore. It is therefore alleged that the said Document has been created by the Defendants and even otherwise same is not binding on the 5th Plaintiff for the reason that the Defendant and Plaintiffs did not constitute the joint family and they are separated by registered documents through their father wayback in the year 1965 and 1973. Thus the question of executing a partition deed in the year 2002 would not arise.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>11.13.<span style=\"white-space: pre;\">	</span>The reading of the entire Plaint would indicate that even according to the Plaintiffs, the 5th Plaintiff has separated himself from the joint family in the year 1965, thereafter he has acquired various properties which is claimed by the Plaintiffs to be the self acquired property of the 5th Plaintiff. There is a further allegation made that in the partition deed in the year 2002, the properties which were acquired by the Defendants No.1 to 3 subsequent to their separation had not been included, which establishes fraud on the part of Defendants No.1 to 3 since those properties also had to have been included in the partition deed, if Defendants No.1 to 3 were fair. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>11.14.<span style=\"white-space: pre;\">	</span>Therefore, the allegation and/or the grievance on the part of the Plaintiffs is that only the self-acquired properties of the 5th Plaintiff is made a part of the partition deed and not the self-acquired properties of Defendants Nos.1 to 3.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>11.18.<span style=\"white-space: pre;\">	</span>Conspicuously, in the Plaint there were no averments made as regards a reunion of the family members. Be that as it may, even if it could be contended that by filing a partition suit there is a deemed averment made as regards reunion, the very allegation made by the Plaintiff is that the properties which had been bought by him are self acquired properties and that the properties bought by the Defendants 1 to 3 were not included in the partition deed of the year 2002 would indicate and establish that there is no reunion between the parties. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>11.19.<span style=\"white-space: pre;\">	</span>Thus there being no joint family in existence post 1965 and after 1973, any properties purchased by the other Defendants more so subsequent to 1965 since the 5th Plaintiff separated in the year 1965 cannot be said to be joint family properties and cannot be included in a suit for partition by way of an amendment. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>11.20.<span style=\"white-space: pre;\">	</span>Hence, I answer point No.1 by holding that once a Plaintiff were to contend that he has separated from the family, the properties bought subsequent to the said separation cannot be included in the said Plaint for partition filed subsequently that too by way of an amendment. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>Answer to point No.2: Whether an amendment to include properties bought subsequent to the partition can be allowed without there being suitable averment made in the Plaint as regards reunion between the family members?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>12.3.<span style=\"white-space: pre;\">	</span>The Hon\'ble Delhi High Court in the case of Surender Kumar vs. Dhani Ram reported in 227 (2016) DLT 217,<span style=\"white-space: pre;\">	</span>more particularly, Paragraph 9 thereof has held as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>9. I would like to further note that it is not enough to aver a mantra, so to say, in the plaint simply that a joint Hindu family or HUF exists. Detailed facts as required by Order VI Rule 4 CPC as to when and how the HUF properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF property, and, in law generally bringing in any and every property as HUF property is incorrect as there is known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu Succession Act, 1956 in view of the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhishter (supra) there is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties that it must be specifically stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF and its properties, can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF properties </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>12.4.<span style=\"white-space: pre;\">	</span>The Plaintiffs in the Plaint nor in the affidavit in support of the application under Order VI Rule 17 have made any averment to say as to how the properties are joint family properties except to state that the Plaintiff will in future prove that the property is joint family property. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>12.5.<span style=\"white-space: pre;\">	</span>It was required of Plaintiff to aver in sufficient detail as to how the properties which are now sought to be introduced by way of the amendment are joint family properties and fulfill the criteria laid down above. The same not having been done, it cannot be said that properties are joint family properties and on the basis of mere bland averment made by the Plaintiff, an application for amendment cannot be allowed on the sole ground that they can be determined after trial. There are various consequences to any property included in or made part of a suit, this Court as also the trial court would have to act judiciously and exercise discretion in a proper and required manner. An amendment which exfacie is contrary to the admissions made in the Plaint cannot be allowed. This Court cannot be a mute spectator to any abuse of the process of Court resorted to by any party to the litigation. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>12.6.<span style=\"white-space: pre;\">	</span>Hence, I answer point No.2 by holding that an amendment to include properties bought subsequent to the partition can not be allowed without there being a suitable averment made in the Plaint as regards reunion between the family members.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space: pre;\">	</span>Answer to Point Nos.3 and 4: Whether inclusion of certain properties in a plaint can be sought for without making specific averment and allegations that they are joint family properties acquired from and out of the joint family funds ? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>And Whether merely because Plaintiff contentions that the properties are joint family properties are they required to be included in the Plaint by way of an amendment?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>13.2.<span style=\"white-space: pre;\">	</span>In the amendment application, the Plaintiff has just stated that the property sought to be included by way of amendment are joint family property. Apart therefrom, the Plaintiff has not stated as to how the property became the joint family property, the mode of acquisition, the treatment of the property as joint family property etc. A bald contention that the property is a joint family property is not sufficient for considering the same as joint family property.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>13.3.<span style=\"white-space: pre;\">	</span>The person who alleges that the property is a joint family property has to clearly and categorically state as to how the property was acquired, who has been dealing with the property, who is in possession of the property and how the property has been in joint possession of all the joint family members. It is only after the initial burden is discharged, that the burden of proof shifts on the other person, to prove that it is not a joint family property in rebuttal. The initial burden of proof cannot be ignored. In the present application, there being no manner of stating as to how the property is joint family property or otherwise, the falls foul of the decision of the Delhi High Court in Surender Kumar\'s case, which would squarely apply to the present facts and circumstances of the case. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>13.4.<span style=\"white-space: pre;\">	</span>In view of the above, I answer Point Nos.3 and 4 by holding that no property can be included in a plaint by way of an amendment without specific averment and allegation being made, that it or they are joint family properties.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>Answer to Point No.5: What Order?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>14.1.<span style=\"white-space: pre;\">	</span>In view of the finding above, the order passed by the trial Court dated 9.02.2017 in O.S.No.8358/2005 is set aside.</b></font></span></p>', '19b7249d179bdfb9578ba3eac52b9d51.jpeg', '0284387af598b456cffc6bff65a594f2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-29', 1, '', '', '2023-06-29 08:51:14', '2023-06-29 08:53:52'),
(3130, 'aMmIuUvDh5r3ZQR87aMImjdvb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Copyright in songs. Tampering the source code without permission of the owner and freely playing the audio would undoubtedly amount to infringement of copyright. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jairam Ramesh and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 25123 of 2022 decided on 28 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioners are before this Court calling in question\r\nregistration of a crime in Crime No.362 of 2022 for offence\r\npunishable under Section 63 of the Copyright Act, 1957 (hereinafter\r\nreferred to as ‘the Act’ for short), Section 66 of the Information\r\nTechnology Act, 2008 and Sections 120B, 403, 465 and 34 of the\r\nIPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Facts adumbrated, as borne out from the pleadings, are as\r\nfollows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> Before embarking upon narration of facts, I deem it\r\nappropriate to notice the protagonists in the alleged crime. The 1st\r\npetitioner is the General Secretary of Indian National Congress, incharge of Communication, Publicity, Media including Social and\r\nDigital Committee of the commerce. Petitioner No.2 is the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Chairperson of the Social Media and Digital Platform of the Indian\r\nNational Congress. The 3rd petitioner is the Member of the Steering\r\nCommittee of the Indian National Congress. They are accused 1, 2\r\nand 3. The 2nd respondent is the complainant, a partnership firm\r\nowning and broadcasting music in the name and style of “MRT\r\nMusic”. The petitioners claim to be persons in public life and\r\nmembers closely associated with the Indian National Congress. The\r\n1\r\nst petitioner is a Member of Parliament elected to the Rajya Sabha;\r\nthe 2nd petitioner is a former journalist and currently serving as a\r\nNational Spokesperson of the Indian National Congress and also\r\nheads Social Media Cell and the 3rd petitioner is the Member of\r\nParliament elected to the Lok Sabha from Waynad Constituency,\r\nKerala.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The issue crops up with Bharat Jodo Yatra (hereinafter\r\nreferred to as ‘the Yatra’ for short). The Yatra is claimed to be the\r\nbrain child of the 3rd petitioner for it to be an ongoing mass\r\nmovement which envisaged organization and mobilization of\r\ngeneral public through a walk from Kanyakumari to Kashmir\r\nspanning over 3570 kilometers over a period of 150 days. Insofar <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as Karnataka State is concerned Yatra enters the State on\r\n30-09-2022 and ends on 20-10-2022 at Raichur. The issue does not\r\nconcern any happenings during the Yatra with regard to public\r\npeace or otherwise. The petitioners have also their several media\r\nhandles such as Face book, Twitter etc. and have reached out to\r\nmillions and millions through social media and claimed to be in the\r\nprincipal opposition at the Centre/Parliament.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 4. The 2nd respondent registers a complaint against the\r\npetitioners, on 04-11-2022. The allegation in the complaint is that\r\npopular songs from the film KGF Chapter-2 were played in the\r\nbackdrop of the Yatra by violating the copyright, as it was without\r\nany agreement/permission from the hands of the assignee, the 2nd\r\nrespondent. Based upon the said complaint, a crime comes to be\r\nregistered in Crime No.362 of 2022 for the afore-quoted offences\r\nprimarily, for violation of copyright, under Section 63 of the Act and\r\nSection 66 of the Information and Technology Act. Registration of\r\nthe crime is what drives the petitioners to this Court in the subject\r\npetition. This Court in terms of its order dated 16-12-2022 grants\r\nan interim order of stay of investigation in the aforesaid crime, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">however reserving liberty to the respondents to seek vacation of\r\nthe interim order upon filing of statement of objections. The\r\nstatement of objections along with an application seeking vacation\r\nof the interim order is filed by the respondents and the matter is\r\nheard. The interim order granted earlier still subsists in the case at\r\nhand.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. I have given my anxious consideration to the submissions\r\nmade by the respective learned counsel and have perused the\r\nmaterial on record. In furtherance whereof, the issue that falls for\r\nmy consideration is, “whether the acts of the petitioners would\r\nbecome an offence under Section 63 of the Act?”</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. The afore-narrated facts about the position of the\r\npetitioners, the offices that they are holding and conduct of Yatra\r\nare a matter of record. They would not require any reiteration. The\r\ngenesis of the issue happens when the Yatra enters the State of\r\nKarnataka on 30-09-2022 till it is terminated on 20-10-2022.\r\nDuring the Yatra, songs of a movie “KGF” were being played in the\r\nbackground when the march of the Yatra was happening in which\r\nthe 3rd petitioner was the main protagonist. Noticing the fact that\r\nsongs have been freely played without taking permission from the\r\nowners of the music or the 2nd respondent, the 2nd respondent\r\ninitiates a civil suit before the concerned Court. The concerned <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court grants an injunction against the Yatra accepting the fact that\r\nprima facie there is violation of copyright. This interim order\r\ngranted in the civil suit was called in question before the Division\r\nBench of this Court in Commercial Appeal No.460 of 2022. The\r\nDivision Bench by its order dated 8-11-2022 modifies the order\r\npassed by the civil Court permitting the Yatra to move on, but not\r\nto play the songs.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">12. To consider the submissions made by the learned senior\r\ncounsel, certain provisions of the Act becomes germane to be\r\nnoticed. Section 2 is interpretation of the context appearing in the\r\nAct. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 2(f) defines a ‘cinematograph film’ which would mean any\r\nwork of visual recording and includes a sound recording\r\naccompanying such visual recording and such cinematograph shall </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be construed to be including any work produced by any process\r\nanalogous to cinematography. Therefore, a cinematograph film\r\nwould include both audio and video. Section 14 defines what is\r\ncopyright. Clause (d) of Section 14 defines what is ‘cinematograph\r\nfilm’ and clause (e) defines the rights of the owner of the copyright\r\nin a ‘sound recording’</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. The other submission of the learned senior counsel for\r\npetitioners is that the complainant has a civil remedy for\r\ninfringement of copyright and a crime at the outset is not\r\nmaintainable in terms of Section 55 of the Act. Section 55 of the\r\nAct deals with civil remedies for infringement of copyright, but it\r\nwould be maintainable on a presumption that copyright has been\r\ninfringed unless the contrary is proved. It is not the law that\r\nmerely because a civil remedy exists on infringement of copyright,\r\ncriminal case cannot be registered. It is germane to refer to the\r\njudgment rendered by the co-ordinate Bench of this Court in the\r\ncase of M/s MANGALORE NEW SULTAN BEEDI WORKS v.\r\nSTATE OF KARNATAKA AND OTHERS – W.P.No.10870 of 2023\r\ndecided on 31-05-2023 which considered an identical\r\ncircumstance where a commercial original suit was pending against\r\ninfringement of a copyright and on that pendency, no crime was\r\nregistered for offences under Section 63 of the Act. The coordinate Bench holds as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>In other words, the Act provides for both civil remedy and\r\ncriminal prosecution, in the case of such an infringement. The\r\noutcome of one does not depend upon the outcome of another,\r\nsubject to all just exceptions. Petitioner has already filed an FIR\r\nwhich has been duly registered by the jurisdictional police.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>b) The infringement of a copyright gives rise to a cause of\r\naction on which a civil proceeding like an Injunctive Suit can be\r\nstructured; it also can give rise to a cause of action for the\r\ninstitution of a criminal proceeding; in the former, it is\r\npreventive, remedial, compensatory or otherwise, whereas, in\r\nthe latter, it is primarily punitive. The object, nature & outcome\r\nof these proceedings, thus are not the same. That is how the\r\nstatutory scheme is enacted by the Parliament. Merely because\r\na civil dispute is being fought between the parties, the criminal\r\nproceedings cannot be halted, per se, on that ground. This view\r\ngains support from the Hon’ble Delhi High Court decision in JAY\r\nPRAKASH v. STATE, 2008 Cr.L.J.(NOC) 637. Del. In the said\r\ncase, civil litigation as to use of “V” has pending and there was\r\nno agreement between the parties either by way of an interim\r\narrangement nor was there any interim order of the court, held,\r\nthat mere withholding of mention of such litigation would not\r\npreclude Trial Court from framing of charges under Section 63 of\r\nthe 1957 Act. There may be cases where the processing of one\r\nproceeding is kept at a bay, because of the likely adverse\r\nconsequences that follow on a particular party involved in the\r\nother proceeding, both having been structured on the same set\r\nof facts. However, this is a different aspect of the matter.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>Similarly, in ‘CRIMINAL LAW’ by Smith and Hogan, 7th\r\nEdition, ELBS at page 19 it is written “…most torts are crimes as <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">well, though some torts are not crimes and some crimes are not\r\ntorts. It is not in the nature of act, but in the nature of the\r\nproceedings that the distinction consists; and both types of\r\nproceeding may follow where an act is both a crime and a\r\ntort….” In view of this clarity obtaining in criminal jurisprudence,\r\nthe reluctance of the police to process the complaint may not be\r\ncorrect.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\nIn the above circumstances, this writ petition succeeds; a\r\nWrit of Mandamus issues to the respondent- police to undertake\r\n& accomplish the investigation in the subject offence within an\r\nouter limit of three months. Delay if brooked may result into an\r\nadverse entry being made in the Service Records of the\r\nconcerned police official.”</span><span style=\"font-size: 12pt;\"> </span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The co-ordinate Bench interprets Section 63 and civil remedies\r\navailable under Sections 51 to 53A including Section 55 of the Act\r\nwhich deals with civil remedies in particular and holds that the\r\ncrime ought to be registered as it cannot be controlled by Section\r\n55. They are remedies altogether independent. In the light of the\r\njudgment of the co-ordinate Bench, the submission of the learned\r\nsenior counsel that since the civil suit is pending, the investigation\r\nin the crime should not be permitted, does not hold water. Long\r\nbefore the judgment of the co-ordinate Bench, in an identical\r\ncircumstance, the High Court of Madras in SUMEET MACHINES\r\nPRIVATE LIMITED NASIK v. SUMEET RESEARCH AND <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">HOLDING LIMITED considering the very submission under the\r\nAct has held as follows:</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>15. However, the single factor to be taken note of\r\nhere is that no provision had been engrafted in these two\r\nActs interdicting or inhibiting both civil and criminal\r\nactions being proceeded simultaneously before\r\ncompetent forums.\r\n</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>16. Taking notice of the fact-situation, impelling or\r\ncompelling the resorting to one course or the other, or\r\nboth courses simultaneously, as had been done by\r\nvarious Courts of superior jurisdiction and the apex Court\r\nin the decisions cited supra, and on an analogy of the\r\nvarious provisions adumbrated under the two Acts, I am\r\nof the view that in the instant case, both actions have to\r\nproceed simultaneously and if done so, no prejudice is\r\nlikely to be caused to any of the parties, in as much as\r\nboth the actions are not mutually exclusive, but clearly\r\nco-extensive and quite different in content and\r\nconsequence. hereby affixing my seal of approval to the\r\nbone of contention urged by Mr. U.N.R. Rao, learned\r\nSenior Counsel appearing for the respondents. </i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The High Court of Madras holds that both actions can proceed\r\nsimultaneously and if done so, no prejudice is likely to be caused to\r\nany of the parties. In the light of the judgment of the co-ordinate\r\nBench and that of the High Court of Madras, the submission of the\r\nlearned senior counsel that the proceedings under Section 63 will\r\nhave to wait the outcome of the civil suit is rendered unacceptable <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and it is unsustainable. Section 63 makes it an offence, if any\r\nperson who knowingly infringes or abets the infringement of a\r\ncopyright in a work or any other right conferred under this Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n16. Now, whether the copyright has been infringed or not is\r\nwhat is to be noticed albeit, prima facie. It is not in dispute that\r\nthe song was being played in the background and those videos\r\nhave been uploaded on YouTube and when the videos are uploaded\r\nthere is a declaration in every video be it twitter, instagram, face\r\nbook or YouTube. The declaration reads as follows:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>“This video is an intellectual property belonging to the\r\nIndian National Congress. Please seek prior permission\r\nbefore using any part of this video in any form.”</i></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>This declaration is found in every platform where the video is\r\nplayed. The declaration is as afore-quoted which depicts that the\r\nvideo is an intellectual property belonging to the Indian National\r\nCongress and without prior permission using any part of the video\r\nin any form would be illegal. It is not the original copyright of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Indian National Congress who have put it in the manner that they\r\nhave portrayed. This would be circumstance enough to demonstrate\r\nthat the Indian National Congress has tampered with the source\r\ncode and have replaced the song with their song and have\r\nportrayed the 3rd petitioner to be a hero of the song. Portraying the\r\n3\r\nrd petitioner as a hero in any of the videos cannot become a crime.\r\nBut, the song that is played in the video, without\r\nseeking prior permission/agreement, does amount to violation/\r\ninfringement of copyright, of the complainant</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. The Congress reels are found on certain platforms which\r\nshow at the bottom of the reel, that it is the original audio of the\r\nCongress and to the original audio it has a thumb name “Try it”\r\nwhich clearly shows that the audio was playable by general public.\r\nIf the petitioners had not meddled with the source code, they could\r\nnot have tampered with the audio and replaced it with their own\r\naudio. Tampering the source code without permission and freely\r\nplaying the audio would undoubtedly amount to infringement of\r\ncopyright of the complainant. The petitioners appears to have taken\r\nthe copyright of the complainant for granted and have tinkered and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">meddled with it. Therefore, prima facie, all these factors become a\r\nmatter of evidence which have to be thrashed out by an\r\ninvestigation in the least.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 18. For the aforesaid reasons, finding no merit in the petition,\r\nthe petition stands rejected. However liberty is reserved to the\r\npetitioners to avail of such remedy as is available in law at the\r\nappropriate time before the appropriate fora.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'da0157208458f9bb03de7f4433367a69.jpeg', '168d4e4f0f50ebb5744725ce756f19d1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-06-30', 1, '', '', '2023-06-29 18:37:35', '2023-06-30 12:33:31');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3142, 'MC9uC1j3hRwk1J6h7lW17HiEX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Abuse of social media is antithetical to the democratic process which has led to manipulation and fragmentation of society on the tainted lines of political ideologies. It alters civic engagement that may hijack democracy. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>X Corp Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 13710 of 2022 decided on 30 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Petitioner, claiming to be an Intermediary under the Information Technology Act, 2000 (hereafter ‘Act’), is knocking at the doors of Writ Court complaining against <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">certain Blocking Orders issued by the respondents, whereby it is directed to bar access of certain information to the public, by effecting suspension of some accounts on Twitter i.e., www.twitter.com. In the alternative, petitioner seeks a direction at the hands of this court ‘to modify the Blocking Orders to the extent of Table A of Annexure S to revoke the account level directions and instead identify specific tweets which are violative of Section 69A of the IT Act with reasons.’ The respondents vide letter dated 27 June 2022 have warned the petitioner of serious consequences such as withdrawal of protection availing under section 79(1) of the Act and initiation of criminal proceedings as well if these orders are not complied with.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>III. FOUNDATIONAL FACTS OF THE CASE:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Petitioner is a company incorporated under the laws of the United States of America, having its registered office at San Francisco, California. In the petition, it has shown the ‘contact address’ as Dickenson Road, Bangalore, India. Petitioner provides services on Twitter to users inter alia in India; Twitter is claimed to be a global platform for self-expression of its users to communicate and stay connected through messages of 280 characters or less (Tweets), at times with pictures/videos. Petitioner answers the description of “intermediary” as given in section 2(1)(w) of the Act since its functions are restricted to receiving, storing & transmitting ‘records’ or providing ‘any service with respect to that record’, on behalf of any user of Twitter platform </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(ii) 1st Respondent-Union of India [hereafter ‘UOI’] is the “appropriate government” as defined under Section 2(e) of the Act; 2nd Respondent happens to be the “Designated Officer” [hereafter ‘Designated Officer’] as defined under Rule 2(c) of the Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009 [hereafter ‘Website Blocking Rules’]. The respondents in exercise of power availing under section 69A of the Act, have issued Blocking Orders on various dates. These Blocking Orders in all comprise of 1,474 Twitter accounts and 175 Tweets. A brief description of this is given in paragraph No.4. Petition also states ‘Of the above, only a total of 39 URLs are being challenged by the Petitioner...’</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(iii) Petitioner in June 2022, having received notice of the Blocking Orders, claims to have complied with the same ‘under protest’. It sent a reply dated 9 June 2022 seeking a post-decisional personal hearing. The Designated Officer vide notice dated 27 June 2022 directed compliance with all directions issued under </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">section 69A of the Act coupled with a warning of serious consequences such as withdrawal of the immunity availing under section 79(1) & penal actions, if the same are not complied. Petitioner sent its response dated 29 June 2022 to the effect that certain so-called objectionable content did not attract the grounds specified in section 69A.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(iv) The Review Committee constituted under Rule 419-A of the Indian Telegraph Rules, 1951, held its meeting on 30 June 2022 and the petitioner having participated therein, requested for revocation of 11 account-level Blocking Orders, on certain grounds. Subsequent to the said meeting, the respondents enlisted 15 Twitter accounts and 12 URLs (Tweets) with a direction to block them. In terms of what was agreed upon in the Meeting, the respondents vide notice dated 1 July 2022 revoked 10 of these 11 accounts that were blocked. Petitioner sent a letter dated 2 July 2022 reporting compliance of the Blocking Orders under protest that were left non complied thitherto, while also pointing out certain discrepancies in the Blocking Orders. This compliance is </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">acknowledged by the respondents vide e-mail dated 4 July 2022.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">IV. Aggrieved by both, the Blocking Orders and the action of respondents in not revoking the blocking of accounts/Tweets/URLs, this Writ Petition is presented.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">V. Having extensively heard learned Advocates appearing for the parties and having perused the Petition Papers, in the light of relevant of the Rulings cited at the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Bar, the following questions have been broadly framed for consideration:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>1. Whether the petitioner-Company being a foreign entity can invoke the writ jurisdiction constitutionally vested in the court under Articles 226 & 227…?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>2. Whether section 69A of the Act read with the Website Blocking Rules does authorize issuance of a direction to block user accounts in their entirety or such power is tweet-specific…?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>3. Whether the impugned Blocking Orders are liable to be voided on the ground of non-communication of reasons on which they have been structured…?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. Whether the impugned Blocking Orders are bad since they have not been founded on discernible reasons relatable to objectionable content…?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>5. Whether notice to user of accounts i.e., originators of information in terms of Rule 8(1) is mandatory and in the absence thereof, the impugned Blocking Orders suffer from legal infirmity…? </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>6. Whether the impugned Blocking Orders are violative of the doctrine of proportionality and therefore, liable to be invalidated…?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. Whether the conduct of petitioner disentitles it to the grant of any discretionary relief at the hands of Writ Court…?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8. Whether the culpable conduct of the petitioner renders it liable for the levy of exemplary costs…?</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(I) AS TO LOCUS STANDI OF THE PETITIONERA FOREIGN COMPANY TO INVOKE CONSTITUTIONAL JURISDICTION OF THE COURT:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">(e) The above being said, Rule 8(1)(iii) of Information Technology (Certifying Authorities) Rules, 2000 defines “foreign company” by adopting the meaning assigned to it in section 2(23) of the Income Tax Act, 1961. It is also pertinent to note that Rule 8(3) of the Website Blocking Rules in so many words mentions about the mode of service of notice on a ‘foreign entity or body corporate’. It also recognizes the right of such an entity to reply. Notice was sent to petitioner-Company by the respondents and the same was replied to by it. In SHREYA SINGHAL supra, what the Apex Court observed also lends </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">credence to the case of petitioner as to locus standi. At paragraph 114, it observed: “…reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution…” At paragraph 115, it stated: “…It is only an intermediary who finally fails to comply with the directions issued who is punishable under sub-section (3) of Section 69A…”. Learned counsel for the petitioner is justified in submitting that section 83 of the Code of Civil Procedure, 1908 recognizes right of an alien to sue and his liability to be sued, as if he is a citizen of India.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>However, when it comes to an ‘alien enemy’, conditions do apply. Mr.Manu Kulkarni is right in submitting that Rule 39 of the Writ Proceedings Rules, 1977 broadly adopts inter alia the provisions of CPC. If right to sue is recognized, whether it is prosecuted in an ordinary Civil Court or in Writ Court, in the fact matrix of the case, pales into insignificance. Where the cause of action is animated with abundant public law elements like the State action, writ jurisdiction is invocable. It cannot be said that the action of respondents does not have such elements, when the same has been taken under a special statute. Therefore, contention of learned ASG that Indian law does not take cognizance of a foreign entity/company being too farfetched an argument, cannot be agreed to.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">(f) It hardly needs to be stated that many civilized jurisdictions across the globe allow foreign nationals & foreign entities to vindicate statutory rights in the domestic courts, even against the government & its </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">authorities. Article III of the U.S. Constitution recognizes the right of foreign citizens/entities to sue and their liability for being sued vide SERVICIOS AZUCAREROS DE VENEZUELA, C.A. vs. JOHN DEERE THIBODE, INC8 and TRANSNOR (BERMUDA) LTD vs. BP NORTH AMERICA PETROLEUM9 . The U.S. Supreme Court has repeatedly stated that the ‘equality clause’ and the ‘due process clause’ do apply to all persons including the aliens vide ZADVYDAS vs. DAVIS10. English Law is not much different, in this regard. The London Court of Appeal in DOMINIC LISWANISO LUNGOWE & OTHERS vs. VEDANTA RESOURCES Plc & ANOTHER11 , has confirmed that foreign citizens can pursue in England legal claims against English based multinationals. The realm of Cyber Law spurns at traditional concept of territoriality and repels the idea of geographical boundaries. Globe is becoming small. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Petitioner-Company is not only threatened of losing its protection available u/s 79(1) but also penal action for violation of the mandatory provisions of the Act and the Website Blocking Rules. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In view of the above discussion, this court is of the considered view that petitioner has locus standi to tap the writ jurisdiction of this Court for the redressal of its arguable grievance.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(II) AS TO INHERENT APPREHENSIONS OF UNFETTERED CYBERSPACE AND THE OMINOUS PERVASION OF SOCIAL MEDIA IN A DEMOCRATIC SETUP:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(b) Social media has also been used to manipulate political choices of voters & opinion generators. This perniciously affects amongst other, the democratic setup of even constitutional institutions. Social media is highly susceptible to exploitation at the hands of organizations/entities. Mass level psychological and intellectual manipulations are also perpetrated. Social networks have evolved into platforms for the generation & huge propaganda of fake news; this in turn empowers disruptive voices & ideologies with cascading effect. These platforms hold the potential to alter civic engagement that may eventually hijack democracy, by influencing the masses toward a particular way of thinking. Social media has enabled a style of populist politics, which if left unregulated allows hate speech & virulent expressions to thrive in digital spaces,. The rise of polarizing & divisive content has been a defining moment of modern politics, which is fed by dissemination of fake news, and such dissemination through social media among populations with low-to-no levels of critical digital literacy, is a big <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">challenge. To this is added, another dangerous component namely, the labeling and trolling of disruptive voices.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(d) It is pertinent to note that more or less similar concerns were addressed in the recently conducted Global Dialogue on ‘Internet for Trust: Towards Guidelines for Regulating Digital Platforms’ held in February 2023, by the UNESCO. The Third Draft Guidelines titled, “Safeguarding freedom of Expression and access to information: Guidelines for a multistakeholder approach in the context of regulating digital platforms”, were shared for public consultation.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(III) AS TO A BRIEF & SELECTIVE ASPECTS OF COMPARATIVE LAW RELATING TO TAKEDOWN OF OBJECTIONABLE CYBER CONTENT: <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(i) In USA, there does not appear to be a law approximating to the regulatory provisions of our Information Technology Act, 2000 in general and section 69A thereof in particular. This is because of the First Amendment as expansively construed by the U.S. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Supreme Court in a catena of decisions beginning with Justice Thurgood Marshall’s observation in POLICE DEPARTMENT OF THE CITY OF CHICAGO vs. MOSLEY13: “…the First Amendment above all else means that the government may not restrict expression because of its message, ideas, subject matter or content...” However, now there is The Communications Decency Act, 1996; section 230(c)(1) enacts a ‘safe harbor provision’ whereby intermediaries are not treated as the publisher or speakers of third party generated content; section 230(c)(2) enacts ‘Good Samaritan clause’ which provides that the intermediaries & users may not be held liable for voluntarily acting in ‘good faith’ to restrict access to objectionable material; section 230(e) outlines a few exemptions where immunity will not be available i.e., federal criminal statutes, intellectual property law & sex trafficking prevention laws. A content-based restriction, as opposed to a content-neutral one, is a key differentiation under First Amendment jurisprudence because the former </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is subject to ‘strict scrutiny’ analysis, which requires government to show that it has a compelling public interest for its regulation and that the regulation is the least speech-restrictive way to further such interest. Protection under the First Amendment is not available where the speech is directed or likely to incite or produce imminent lawless action14. Similarly, there is no protection to speech ‘used as an integral part of conduct in violation of a valid criminal statute’15 .</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(ii) In U.K, principally there are two statutes viz., Terrorism Act, 2006 and The Digital Economy Act, 2017. The former prohibits the glorification, encouragement & promotion of commission or preparation of acts of terrorism (section 3). It enables the constable to issue notice for the removal of objectionable content. Whether such content is objectionable would be assessed on the basis of the contents of the statement as a whole and the circumstances & manner of its publication. The offence is punishable with an imprisonment for a term which may </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">extend to 15 years ‘or/and’ with fine. Section 23 of the 2017 Act provides for issuance of Blocking Orders in respect of public access to offending material using the services of the internet service provider. Sub-section (2) provides for taking steps for securing compliance of such notices. The statute essentially focuses the prevention of ‘extreme-pornography’ and provides for prosecution & penalty.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(iii) In AUSTRALIA, The Online Safety Act, 2021, a Federal statute of nascent origin promotes online safety and administration of complaints relating to cyber abuse. It enacts provisions inter alia regulating the issuance of warning notice, ‘removal notice’, removal request, remedial notice, etc., in respect of objectionable content of cyber posts, and revocation of these notices. Commissioner is the designated authority who does process the same. By a notice in writing, he may request or require intermediary amongst others, to take all reasonable steps in 24 hours or within specified time to ensure the removal of ‘cyber abuse material’ from the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">service. Section 91 prescribes a penalty of 500 units for non-compliance (the value of one unit is currently 275 Australian Dollars). Section 95 provides for issuance of blocking requests to the intermediaries to take steps to disable access to the objectionable material. Sub-section (2) of this section provides for taking steps to block URLs or to block IP address itself. It is more than blocking of an account in its entirety. What is notable is the text of subsection (3): “The Commissioner is not required to observe any requirements of procedural fairness in relation to the giving of the blocking request”. Section 96 provides that the period of blocking request is three months and it may be extended in the form of renewal. Section 97 provides for revocation of blocking request. Similarly, section 99 provides for issuance of ‘blocking notice’ which may also cover blocking of accounts in their entirety. This statute also provides for the issuance of warning notices, link deletion notices and remedial notices. It also provides for what the Commissioner should consider in assessing </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">whether online material is likely to cause significant harm to the community.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(IV) AS TO CERTAIN ASPECTS OF NATIVE LAW & PROCEDURE RELATING TO BLOCKING OF ACCOUNTS, URLS & TWEETS: <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(f) The Central Government in its Memo dated 18 April 2023 has stated about the broad procedure that is normally followed in processing blocking requests. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Website Blocking Rules also provide for ensuring compliance with the Blocking Orders that are made by </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">courts too. This apart, the provisions of Rule 9 empower issuance of interim orders of blocking in specific circumstances. Such orders are followed by the final orders, as has happened in the case at hand.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In SHREYA SINGHAL, supra the challenge in a social action litigation (u/a 32 of the Constitution), to the validity inter alia of section 69A of the Act & the Website Blocking Rules came to be repelled by the Apex Court on the ground that Rule 8 provides for sufficient substantive & procedural safeguards.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(V) AS TO COMPETENCE OF CENTRAL GOVERNMENT/DESIGNATED OFFICER TO DIRECT BLOCKING OF USER ACCOUNTS U/S 69A OF THE ACT:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(j) Petitioner’s submission that power to block information is akin to the power of forfeiture under Sections 95 & 96 of The Code of Criminal Procedure, 1973, whereas blocking an entire account amounts to preventing <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">all future publications, at the first blush, appears to be attractive. A deeper examination would show its hollowness. There is a vast difference between the electronic medium and the print medium; in the former, the transmission of voluminous information happens with a lightning speed unlike in the latter; added, the audiovisual impact of electronic medium is instant in time and enormous in coverage. There is a marked difference between print media and electronic media. In SHREYA SINGHAL, at paragraph 102, it is observed: “…The learned Additional Solicitor General has correctly said that something posted on a site or website travels like lightning and can reach millions of persons all over the world...” The respondents have offered a plausible explanation as to why they resorted to an extreme measure of blocking accounts in respect of a few users/originators; there were repetitive posts and some originators had behavioural antecedents of repetitive posting or potential and their highly objectionable tweets had a great propensity to incite anti-national feelings. Added, it is not that the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">decision to block the accounts has been recklessly taken. Fairness is exhibited by removing the blockage of 10 accounts out of 11, in the Committee meeting held on 30 June 2022 which is admitted by the petitioner at paragraph 80 of its Written Submissions filed on 28 April 2022. There is no allegation of malafide or the like against the members of Committee or qua the Designated Officer.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In view of the above discussion, I am of the considered opinion that the power to block under section 69A(1) of the Act read with Website Blocking Rules is not tweetspecific but extends to user accounts in their entirety.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(VI) AS TO SOME ASPECTS OF LAW RELATING TO COMMUNICATION OF REASONS ON WHICH STATUTORY ORDERS ARE FOUNDED:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(f)... <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Of course, this again was in the context of a departmental enquiry held against a civil servant and thus, obviously matter was not significant, unlike the case at hand. When the statute employs the expression ‘for the reasons to be recorded in writing’, ordinarily, the reasons should be part of the order so that when a copy of the order is served on the person, there is communication of reasons too. However, where the order does not contain the reasons in its womb but are separately recorded in a file, such </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reasons need to be communicated to the aggrieved at least on demand. Where the statute empowers withholding of recorded reasons, even then the authority has to assign the reason for not sharing the reasons on which the order is founded. Almost invariably, it is open to the Court or the Appellate Authority to call for the records and look into the reasons even when the statute provides for withholding of the same. The extreme cases where file may be withheld ‘for reasons of the State’ even from the eyes of court, are marked by their rarity.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(VII) AS TO NON-COMMUNICAITON OF REASONS ON WHICH BLOCKING ORDERS ARE FOUNDED AND ABSENCE OF NEXUS BETWEEN THE REASONS AND THE OBJECTIONABLE TWEETS:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(d) The vehement submission of Sr. Advocates appearing for the petitioner that even if the entire sealed cover material is perused, no reasonable person can opine that the petitioner had sufficient opportunity of representation, is liable to be rejected. Petitioner is not a poor farmer, a menial labourer, a villager or a novice, who could have pleaded of his inability to understand the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">objectionability of the tweets and evidentiary material vouching such objection. It is a multinational IT company whose annual revenue generation is about 5 Billion USD, as submitted by learned ASG. It has technical teams having expertise in the matter relating to law & procedure of Website Blocking not only in India but in other parts of the globe too. Its representatives who admittedly participated in several meetings of the Committee, never indicated to the authorities the grievances that are being now aired. Learned counsel for the petitioner in all fairness admitted during the course of hearing, that the respondents being convinced of the submission of these representatives, agreed to unblock 10 of the 11 user accounts; this they did vide order dated 1 July 2022 at Annexure-P. After all, giving reasons is an aspect of fairness. If processual fairness in the governmental action is otherwise exhibited, the procedural infirmity of not communicating the reasons in a formal way, would not assume significance. That being the position, the contention of absence of communication of reasons, falls </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to the ground. For the same reason, the contention as to non-application of mind and frugality of opportunity of hearing would also fail. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In view of the above, I am of the considered opinion that the impugned orders are speaking orders and there is a thick nexus between the orders and reasons assigned, and further that these reasons were disclosed to and discussed with the petitioner in the Committee meetings.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(VIII) AS TO PETITIONER’S INVOCATION OF RATIO IN SHREYA SINGHAL AND “FAILURE TO PROVIDE USER NOTICE”:</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(f) Petitioner being an intermediary, cannot invoke Rule 8(1) as a launchpad of its tirade, when apparently the said Rule is promulgated to protect the interests of only users of account and not others. Such a view finds <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sustenance from GORRIS vs. SCOTT38 . Facts very briefly stated are: Plaintiff’s sheep were washed overboard while being transported by sea. He sued the defendant for damages. He unsuccessfully attempted to establish carrier’s negligence by showing that it had violated a regulation that required animals on shipboard being kept in pens of a certain size. Had the defendant complied with the statutory requirement, the plaintiff argued, the sheep would not have been washed overboard. The court refused to find negligence on the basis of this violation holding that the Rule was not meant to protect animals from being washed overboard, but rather to prevent spread of disease. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In view of the above discussion, I am of the considered opinion that notice to users of account in terms of Rule 8(1) of the Website Blocking Rules is not mandatory and that in any event, the absence of such notice does not avail to the intermediary as a ground for assailing the Blocking Orders.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(IX) AS TO DOCTRINE OF PROPORTIONALITY & ITS INVOCABILITY FOR THE INVALIDATION OF IMPUGNED ORDERS:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(g) Rule 8(6) of Website Blocking Rules also supports this view. Petitioner’s argument that this court should lay down broad guidelines to regulate the exercise of such discretion, cannot be countenanced for more than one reason: Firstly, there are enough checks & balances that regulate the exercise of that power in the light of SHREYA SINGHAL. Secondly, the periodicity of such orders is a matter left to the discretion of the Executive in the exercise of which a host of factors would enter the fray and most of them are judicially unassessable. Classification of the cases for prescription of periodicity or reviewability, essentially is a matter of policy, and therefore, courts cannot interfere, the doctrine of separation of powers being one of the Basic Features of our Constitution vide INDIRA NEHRU GANDHI vs. RAJ NARAIN44. Assuming that thee is power to lay down guidelines for regulating discretion of the kind, this court declines its exercise at the instance of a foreign entity engaged in a speculative litigation. An argument to the contrary has trappings that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">run repugnant to sovereignty of the nation. Lastly to add, there is no sufficient empirical data that supports the argument of abuse of power which is structurally exercised. No provision in the Act nor in the Website Blocking Rules is pointed out to show that the respondents are under a legal duty to consider the request for review of the Blocking Orders. Thus, grievance in this regard, is not justiciable. If such requests are considered by the respondents, that would be ideal & appreciable, is true.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In view of the above, I am of the considered opinion that the impugned orders blocking the tweets/accounts for indefinite period, are unassailable on the doctrine of proportionality.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(X) AS TO DELAY & LACHES, CULPABLE CONDUCT OF PETITIONER AND DENIAL OF WRIT REMEDY:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(c) The non-compliance with section 69A orders has the potential to make the tweet more viral and spread to other platforms as well. One can imagine the damage potential when such objectionable tweets are allowed to be disseminated despite interdiction. The damage potential is directly proportional to the delay brooked in the compliance of such orders. Petitioner has demonstrably adopted a tactical approach to delay compliance and that shows its intent to remain non-compliant to Indian law. No plausible explanation is offered for the delay in approaching the Constitutional Court, either. Petitioner has abruptly complied with section 69A orders, a bit before coming to court, though the 2nd respondent had issued compliance requirement notice way back on 2 February 2021 threatening: “It needs to be mentioned that Section 69A(3) provides for specific penal consequences in case of non-compliance of the directions issued under section 69A of the Act.” The penalty prescribed u/s 69A(3) for the offence of non-compliance of the order is imprisonment for a term which may extend to seven years and/or fine. Even <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that did not deter the recalcitrant petitioner. The Central Government, in its discretion, did not choose to prosecute the petitioner for the offence in question. It hardly needs to be reiterated that the Constitutional Courts do not come to the aid of litigants whose hands are soiled or who are indolent.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In view of the above, this court is of the considered opinion that petition is hit by delay & laches and culpable conduct of the petitioner and therefore, no relief can be granted in the equitable jurisdiction constitutionally vested under Articles 226 & 227.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(XI) CULPABLE CONDUCT OF PETITIONER AND LEVY OF EXEMPLARY COSTS:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(c).... <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the above circumstances, this Petition being devoid of merits, is liable to be dismissed with exemplary costs, and accordingly, it is. Petitioner is levied with an exemplary cost of Rs.50,00,000/- (Rupees Fifty Lakh) only, payable to the Karnataka State Legal Services Authority, Bengaluru, within 45 days, and delay if brooked attracts an additional levy of Rs.5,000/- (Rupees Fife Thousand) only, per day.</span></b></p>', 'd63cdf4d6c9dbc924ab9298725b1d24c.jpeg', '15333dc4958a58035494ed2230104838.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-01', 1, '', '', '2023-07-01 17:28:58', '2023-07-01 17:52:09');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3140, 'tCYzaPdnSKbJIe9Irzs2KKust', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Information Technology Act. Power to block under section 69A(1) of the Act read with Website Blocking Rules is not tweet-specific but extends to user accounts in their entirety. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>X Corp Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 13710 of 2022 decided on 30 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Petitioner, claiming to be an Intermediary under the\r\nInformation Technology Act, 2000 (hereafter ‘Act’), is\r\nknocking at the doors of Writ Court complaining against <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">certain Blocking Orders issued by the respondents,\r\nwhereby it is directed to bar access of certain information\r\nto the public, by effecting suspension of some accounts on\r\nTwitter i.e., www.twitter.com. In the alternative, petitioner\r\nseeks a direction at the hands of this court ‘to modify the\r\nBlocking Orders to the extent of Table A of Annexure S to\r\nrevoke the account level directions and instead identify\r\nspecific tweets which are violative of Section 69A of the IT\r\nAct with reasons.’ The respondents vide letter dated 27\r\nJune 2022 have warned the petitioner of serious\r\nconsequences such as withdrawal of protection availing\r\nunder section 79(1) of the Act and initiation of criminal\r\nproceedings as well if these orders are not complied with.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>III. FOUNDATIONAL FACTS OF THE CASE:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Petitioner is a company incorporated under the\r\nlaws of the United States of America, having its registered\r\noffice at San Francisco, California. In the petition, it has\r\nshown the ‘contact address’ as Dickenson Road,\r\nBangalore, India. Petitioner provides services on Twitter to\r\nusers inter alia in India; Twitter is claimed to be a global\r\nplatform for self-expression of its users to communicate\r\nand stay connected through messages of 280 characters\r\nor less (Tweets), at times with pictures/videos. Petitioner\r\nanswers the description of “intermediary” as given in\r\nsection 2(1)(w) of the Act since its functions are restricted\r\nto receiving, storing & transmitting ‘records’ or providing\r\n‘any service with respect to that record’, on behalf of any\r\nuser of Twitter platform </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(ii) 1st Respondent-Union of India [hereafter ‘UOI’]\r\nis the “appropriate government” as defined under Section\r\n2(e) of the Act; 2nd Respondent happens to be the\r\n“Designated Officer” [hereafter ‘Designated Officer’] as\r\ndefined under Rule 2(c) of the Information Technology\r\n(Procedures and Safeguards for Blocking for Access of\r\nInformation by Public) Rules, 2009 [hereafter ‘Website\r\nBlocking Rules’]. The respondents in exercise of power\r\navailing under section 69A of the Act, have issued\r\nBlocking Orders on various dates. These Blocking Orders in\r\nall comprise of 1,474 Twitter accounts and 175 Tweets. A\r\nbrief description of this is given in paragraph No.4. Petition\r\nalso states ‘Of the above, only a total of 39 URLs are being\r\nchallenged by the Petitioner...’\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(iii) Petitioner in June 2022, having received notice\r\nof the Blocking Orders, claims to have complied with the\r\nsame ‘under protest’. It sent a reply dated 9 June 2022\r\nseeking a post-decisional personal hearing. The\r\nDesignated Officer vide notice dated 27 June 2022\r\ndirected compliance with all directions issued under </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">section 69A of the Act coupled with a warning of serious\r\nconsequences such as withdrawal of the immunity availing\r\nunder section 79(1) & penal actions, if the same are not\r\ncomplied. Petitioner sent its response dated 29 June 2022\r\nto the effect that certain so-called objectionable content\r\ndid not attract the grounds specified in section 69A.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(iv) The Review Committee constituted under Rule\r\n419-A of the Indian Telegraph Rules, 1951, held its\r\nmeeting on 30 June 2022 and the petitioner having\r\nparticipated therein, requested for revocation of 11\r\naccount-level Blocking Orders, on certain grounds.\r\nSubsequent to the said meeting, the respondents enlisted\r\n15 Twitter accounts and 12 URLs (Tweets) with a direction\r\nto block them. In terms of what was agreed upon in the\r\nMeeting, the respondents vide notice dated 1 July 2022\r\nrevoked 10 of these 11 accounts that were blocked.\r\nPetitioner sent a letter dated 2 July 2022 reporting\r\ncompliance of the Blocking Orders under protest that were\r\nleft non complied thitherto, while also pointing out certain\r\ndiscrepancies in the Blocking Orders. This compliance is </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">acknowledged by the respondents vide e-mail dated 4 July\r\n2022.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\nIV. Aggrieved by both, the Blocking Orders and the\r\naction of respondents in not revoking the blocking of\r\naccounts/Tweets/URLs, this Writ Petition is presented.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">V. Having extensively heard learned Advocates\r\nappearing for the parties and having perused the Petition\r\nPapers, in the light of relevant of the Rulings cited at the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Bar, the following questions have been broadly framed for\r\nconsideration:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>1. Whether the petitioner-Company being a foreign\r\nentity can invoke the writ jurisdiction\r\nconstitutionally vested in the court under Articles\r\n226 & 227…?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>2. Whether section 69A of the Act read with the\r\nWebsite Blocking Rules does authorize issuance of\r\na direction to block user accounts in their entirety\r\nor such power is tweet-specific…?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n3. Whether the impugned Blocking Orders are liable\r\nto be voided on the ground of non-communication\r\nof reasons on which they have been structured…?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>4. Whether the impugned Blocking Orders are bad\r\nsince they have not been founded on discernible\r\nreasons relatable to objectionable content…?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>5. Whether notice to user of accounts i.e., originators\r\nof information in terms of Rule 8(1) is mandatory\r\nand in the absence thereof, the impugned Blocking\r\nOrders suffer from legal infirmity…?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>6. Whether the impugned Blocking Orders are\r\nviolative of the doctrine of proportionality and\r\ntherefore, liable to be invalidated…?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. Whether the conduct of petitioner disentitles it to\r\nthe grant of any discretionary relief at the hands of\r\nWrit Court…?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8. Whether the culpable conduct of the petitioner\r\nrenders it liable for the levy of exemplary costs…?</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(I) AS TO LOCUS STANDI OF THE PETITIONERA FOREIGN COMPANY TO INVOKE CONSTITUTIONAL\r\nJURISDICTION OF THE COURT:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">(e) The above being said, Rule 8(1)(iii) of\r\nInformation Technology (Certifying Authorities) Rules,\r\n2000 defines “foreign company” by adopting the meaning\r\nassigned to it in section 2(23) of the Income Tax Act,\r\n1961. It is also pertinent to note that Rule 8(3) of the\r\nWebsite Blocking Rules in so many words mentions about\r\nthe mode of service of notice on a ‘foreign entity or body\r\ncorporate’. It also recognizes the right of such an entity to\r\nreply. Notice was sent to petitioner-Company by the\r\nrespondents and the same was replied to by it. In SHREYA\r\nSINGHAL supra, what the Apex Court observed also lends </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">credence to the case of petitioner as to locus standi. At\r\nparagraph 114, it observed: “…reasons have to be\r\nrecorded in writing in such blocking order so that they may\r\nbe assailed in a writ petition under Article 226 of the\r\nConstitution…” At paragraph 115, it stated: “…It is only an\r\nintermediary who finally fails to comply with the directions\r\nissued who is punishable under sub-section (3) of Section\r\n69A…”. Learned counsel for the petitioner is justified in\r\nsubmitting that section 83 of the Code of Civil Procedure,\r\n1908 recognizes right of an alien to sue and his liability to\r\nbe sued, as if he is a citizen of India.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>However, when it comes to an ‘alien enemy’, conditions do\r\napply. Mr.Manu Kulkarni is right in submitting that Rule 39\r\nof the Writ Proceedings Rules, 1977 broadly adopts inter\r\nalia the provisions of CPC. If right to sue is recognized,\r\nwhether it is prosecuted in an ordinary Civil Court or in\r\nWrit Court, in the fact matrix of the case, pales into\r\ninsignificance. Where the cause of action is animated with\r\nabundant public law elements like the State action, writ\r\njurisdiction is invocable. It cannot be said that the action\r\nof respondents does not have such elements, when the\r\nsame has been taken under a special statute. Therefore,\r\ncontention of learned ASG that Indian law does not take\r\ncognizance of a foreign entity/company being too\r\nfarfetched an argument, cannot be agreed to.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">\r\n(f) It hardly needs to be stated that many civilized\r\njurisdictions across the globe allow foreign nationals &\r\nforeign entities to vindicate statutory rights in the\r\ndomestic courts, even against the government & its </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">authorities. Article III of the U.S. Constitution recognizes\r\nthe right of foreign citizens/entities to sue and their\r\nliability for being sued vide SERVICIOS AZUCAREROS DE\r\nVENEZUELA, C.A. vs. JOHN DEERE THIBODE, INC8\r\nand\r\nTRANSNOR (BERMUDA) LTD vs. BP NORTH AMERICA\r\nPETROLEUM9\r\n. The U.S. Supreme Court has repeatedly\r\nstated that the ‘equality clause’ and the ‘due process\r\nclause’ do apply to all persons including the aliens vide\r\nZADVYDAS vs. DAVIS10. English Law is not much\r\ndifferent, in this regard. The London Court of Appeal in\r\nDOMINIC LISWANISO LUNGOWE & OTHERS vs. VEDANTA\r\nRESOURCES Plc & ANOTHER11\r\n, has confirmed that foreign\r\ncitizens can pursue in England legal claims against English\r\nbased multinationals. The realm of Cyber Law spurns at\r\ntraditional concept of territoriality and repels the idea of\r\ngeographical boundaries. Globe is becoming small. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Petitioner-Company is not only threatened of losing its\r\nprotection available u/s 79(1) but also penal action for\r\nviolation of the mandatory provisions of the Act and the\r\nWebsite Blocking Rules. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In view of the above discussion, this court is of the\r\nconsidered view that petitioner has locus standi to tap\r\nthe writ jurisdiction of this Court for the redressal of its\r\narguable grievance.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(II) AS TO INHERENT APPREHENSIONS OF\r\nUNFETTERED CYBERSPACE AND THE OMINOUS\r\nPERVASION OF SOCIAL MEDIA IN A DEMOCRATIC\r\nSETUP:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(b) Social media has also been used to manipulate\r\npolitical choices of voters & opinion generators. This\r\nperniciously affects amongst other, the democratic setup\r\nof even constitutional institutions. Social media is highly\r\nsusceptible to exploitation at the hands of\r\norganizations/entities. Mass level psychological and\r\nintellectual manipulations are also perpetrated. Social\r\nnetworks have evolved into platforms for the generation &\r\nhuge propaganda of fake news; this in turn empowers\r\ndisruptive voices & ideologies with cascading effect. These\r\nplatforms hold the potential to alter civic engagement that\r\nmay eventually hijack democracy, by influencing the\r\nmasses toward a particular way of thinking. Social media\r\nhas enabled a style of populist politics, which if left\r\nunregulated allows hate speech & virulent expressions to\r\nthrive in digital spaces,. The rise of polarizing & divisive\r\ncontent has been a defining moment of modern politics,\r\nwhich is fed by dissemination of fake news, and such\r\ndissemination through social media among populations\r\nwith low-to-no levels of critical digital literacy, is a big <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">challenge. To this is added, another dangerous component\r\nnamely, the labeling and trolling of disruptive voices.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(d) It is pertinent to note that more or less similar\r\nconcerns were addressed in the recently conducted Global\r\nDialogue on ‘Internet for Trust: Towards Guidelines for\r\nRegulating Digital Platforms’ held in February 2023, by the\r\nUNESCO. The Third Draft Guidelines titled, “Safeguarding\r\nfreedom of Expression and access to information:\r\nGuidelines for a multistakeholder approach in the context\r\nof regulating digital platforms”, were shared for public\r\nconsultation.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(III) AS TO A BRIEF & SELECTIVE ASPECTS OF\r\nCOMPARATIVE LAW RELATING TO TAKEDOWN OF\r\nOBJECTIONABLE CYBER CONTENT: <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(i) In USA, there does not appear to be a law\r\napproximating to the regulatory provisions of our\r\nInformation Technology Act, 2000 in general and section\r\n69A thereof in particular. This is because of the First\r\nAmendment as expansively construed by the U.S. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Supreme Court in a catena of decisions beginning with\r\nJustice Thurgood Marshall’s observation in POLICE\r\nDEPARTMENT OF THE CITY OF CHICAGO vs. MOSLEY13:\r\n“…the First Amendment above all else means that the\r\ngovernment may not restrict expression because of its\r\nmessage, ideas, subject matter or content...” However,\r\nnow there is The Communications Decency Act, 1996;\r\nsection 230(c)(1) enacts a ‘safe harbor provision’ whereby\r\nintermediaries are not treated as the publisher or speakers\r\nof third party generated content; section 230(c)(2) enacts\r\n‘Good Samaritan clause’ which provides that the\r\nintermediaries & users may not be held liable for\r\nvoluntarily acting in ‘good faith’ to restrict access to\r\nobjectionable material; section 230(e) outlines a few\r\nexemptions where immunity will not be available i.e.,\r\nfederal criminal statutes, intellectual property law & sex\r\ntrafficking prevention laws. A content-based restriction, as\r\nopposed to a content-neutral one, is a key differentiation\r\nunder First Amendment jurisprudence because the former </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is subject to ‘strict scrutiny’ analysis, which requires\r\ngovernment to show that it has a compelling public\r\ninterest for its regulation and that the regulation is the\r\nleast speech-restrictive way to further such interest.\r\nProtection under the First Amendment is not available\r\nwhere the speech is directed or likely to incite or produce\r\nimminent lawless action14. Similarly, there is no protection\r\nto speech ‘used as an integral part of conduct in violation\r\nof a valid criminal statute’15\r\n.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n(ii) In U.K, principally there are two statutes viz.,\r\nTerrorism Act, 2006 and The Digital Economy Act, 2017.\r\nThe former prohibits the glorification, encouragement &\r\npromotion of commission or preparation of acts of\r\nterrorism (section 3). It enables the constable to issue\r\nnotice for the removal of objectionable content. Whether\r\nsuch content is objectionable would be assessed on the\r\nbasis of the contents of the statement as a whole and the\r\ncircumstances & manner of its publication. The offence is\r\npunishable with an imprisonment for a term which may </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">extend to 15 years ‘or/and’ with fine. Section 23 of the\r\n2017 Act provides for issuance of Blocking Orders in\r\nrespect of public access to offending material using the\r\nservices of the internet service provider. Sub-section (2)\r\nprovides for taking steps for securing compliance of such\r\nnotices. The statute essentially focuses the prevention of\r\n‘extreme-pornography’ and provides for prosecution &\r\npenalty.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(iii) In AUSTRALIA, The Online Safety Act, 2021, a\r\nFederal statute of nascent origin promotes online safety\r\nand administration of complaints relating to cyber abuse.\r\nIt enacts provisions inter alia regulating the issuance of\r\nwarning notice, ‘removal notice’, removal request,\r\nremedial notice, etc., in respect of objectionable content of\r\ncyber posts, and revocation of these notices.\r\nCommissioner is the designated authority who does\r\nprocess the same. By a notice in writing, he may request\r\nor require intermediary amongst others, to take all\r\nreasonable steps in 24 hours or within specified time to\r\nensure the removal of ‘cyber abuse material’ from the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">service. Section 91 prescribes a penalty of 500 units for\r\nnon-compliance (the value of one unit is currently 275\r\nAustralian Dollars). Section 95 provides for issuance of\r\nblocking requests to the intermediaries to take steps to\r\ndisable access to the objectionable material. Sub-section\r\n(2) of this section provides for taking steps to block URLs\r\nor to block IP address itself. It is more than blocking of an\r\naccount in its entirety. What is notable is the text of subsection (3): “The Commissioner is not required to observe\r\nany requirements of procedural fairness in relation to the\r\ngiving of the blocking request”. Section 96 provides that\r\nthe period of blocking request is three months and it may\r\nbe extended in the form of renewal. Section 97 provides\r\nfor revocation of blocking request. Similarly, section 99\r\nprovides for issuance of ‘blocking notice’ which may also\r\ncover blocking of accounts in their entirety. This statute\r\nalso provides for the issuance of warning notices, link\r\ndeletion notices and remedial notices. It also provides for\r\nwhat the Commissioner should consider in assessing </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">whether online material is likely to cause significant harm\r\nto the community.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(IV) AS TO CERTAIN ASPECTS OF NATIVE LAW\r\n& PROCEDURE RELATING TO BLOCKING OF\r\nACCOUNTS, URLS & TWEETS: <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(f) The Central Government in its Memo dated 18\r\nApril 2023 has stated about the broad procedure that is\r\nnormally followed in processing blocking requests. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Website Blocking Rules also provide for ensuring\r\ncompliance with the Blocking Orders that are made by </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">courts too. This apart, the provisions of Rule 9 empower\r\nissuance of interim orders of blocking in specific\r\ncircumstances. Such orders are followed by the final\r\norders, as has happened in the case at hand.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In SHREYA SINGHAL, supra the challenge in a social action\r\nlitigation (u/a 32 of the Constitution), to the validity inter\r\nalia of section 69A of the Act & the Website Blocking Rules\r\ncame to be repelled by the Apex Court on the ground that\r\nRule 8 provides for sufficient substantive & procedural\r\nsafeguards.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(V) AS TO COMPETENCE OF CENTRAL\r\nGOVERNMENT/DESIGNATED OFFICER TO DIRECT\r\nBLOCKING OF USER ACCOUNTS U/S 69A OF THE\r\nACT:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(j) Petitioner’s submission that power to block\r\ninformation is akin to the power of forfeiture under\r\nSections 95 & 96 of The Code of Criminal Procedure, 1973,\r\nwhereas blocking an entire account amounts to preventing <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">all future publications, at the first blush, appears to be\r\nattractive. A deeper examination would show its\r\nhollowness. There is a vast difference between the\r\nelectronic medium and the print medium; in the former,\r\nthe transmission of voluminous information happens with\r\na lightning speed unlike in the latter; added, the audiovisual impact of electronic medium is instant in time and\r\nenormous in coverage. There is a marked difference\r\nbetween print media and electronic media. In SHREYA\r\nSINGHAL, at paragraph 102, it is observed: “…The learned\r\nAdditional Solicitor General has correctly said that\r\nsomething posted on a site or website travels like lightning\r\nand can reach millions of persons all over the world...”\r\nThe respondents have offered a plausible explanation as to\r\nwhy they resorted to an extreme measure of blocking\r\naccounts in respect of a few users/originators; there were\r\nrepetitive posts and some originators had behavioural\r\nantecedents of repetitive posting or potential and their\r\nhighly objectionable tweets had a great propensity to\r\nincite anti-national feelings. Added, it is not that the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">decision to block the accounts has been recklessly taken.\r\nFairness is exhibited by removing the blockage of 10\r\naccounts out of 11, in the Committee meeting held on 30\r\nJune 2022 which is admitted by the petitioner at\r\nparagraph 80 of its Written Submissions filed on 28 April\r\n2022. There is no allegation of malafide or the like against\r\nthe members of Committee or qua the Designated Officer.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In view of the above discussion, I am of the considered\r\nopinion that the power to block under section 69A(1) of\r\nthe Act read with Website Blocking Rules is not tweetspecific but extends to user accounts in their entirety.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(VI) AS TO SOME ASPECTS OF LAW RELATING\r\nTO COMMUNICATION OF REASONS ON WHICH\r\nSTATUTORY ORDERS ARE FOUNDED:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(f)... <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Of course, this again was in the context of a departmental\r\nenquiry held against a civil servant and thus, obviously\r\nmatter was not significant, unlike the case at hand. When\r\nthe statute employs the expression ‘for the reasons to be\r\nrecorded in writing’, ordinarily, the reasons should be part\r\nof the order so that when a copy of the order is served on\r\nthe person, there is communication of reasons too.\r\nHowever, where the order does not contain the reasons in\r\nits womb but are separately recorded in a file, such </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reasons need to be communicated to the aggrieved at\r\nleast on demand. Where the statute empowers withholding\r\nof recorded reasons, even then the authority has to assign\r\nthe reason for not sharing the reasons on which the order\r\nis founded. Almost invariably, it is open to the Court or the\r\nAppellate Authority to call for the records and look into the\r\nreasons even when the statute provides for withholding of\r\nthe same. The extreme cases where file may be withheld\r\n‘for reasons of the State’ even from the eyes of court, are\r\nmarked by their rarity.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(VII) AS TO NON-COMMUNICAITON OF REASONS\r\nON WHICH BLOCKING ORDERS ARE FOUNDED AND\r\nABSENCE OF NEXUS BETWEEN THE REASONS AND\r\nTHE OBJECTIONABLE TWEETS:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(d) The vehement submission of Sr. Advocates\r\nappearing for the petitioner that even if the entire sealed\r\ncover material is perused, no reasonable person can opine\r\nthat the petitioner had sufficient opportunity of\r\nrepresentation, is liable to be rejected. Petitioner is not a\r\npoor farmer, a menial labourer, a villager or a novice, who\r\ncould have pleaded of his inability to understand the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">objectionability of the tweets and evidentiary material\r\nvouching such objection. It is a multinational IT company\r\nwhose annual revenue generation is about 5 Billion USD,\r\nas submitted by learned ASG. It has technical teams\r\nhaving expertise in the matter relating to law & procedure\r\nof Website Blocking not only in India but in other parts of\r\nthe globe too. Its representatives who admittedly\r\nparticipated in several meetings of the Committee, never\r\nindicated to the authorities the grievances that are being\r\nnow aired. Learned counsel for the petitioner in all fairness\r\nadmitted during the course of hearing, that the\r\nrespondents being convinced of the submission of these\r\nrepresentatives, agreed to unblock 10 of the 11 user\r\naccounts; this they did vide order dated 1 July 2022 at\r\nAnnexure-P. After all, giving reasons is an aspect of\r\nfairness. If processual fairness in the governmental action\r\nis otherwise exhibited, the procedural infirmity of not\r\ncommunicating the reasons in a formal way, would not\r\nassume significance. That being the position, the\r\ncontention of absence of communication of reasons, falls </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to the ground. For the same reason, the contention as to\r\nnon-application of mind and frugality of opportunity of\r\nhearing would also fail. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In view of the above, I am of the considered opinion\r\nthat the impugned orders are speaking orders and there\r\nis a thick nexus between the orders and reasons assigned,\r\nand further that these reasons were disclosed to and\r\ndiscussed with the petitioner in the Committee meetings.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(VIII) AS TO PETITIONER’S INVOCATION OF\r\nRATIO IN SHREYA SINGHAL AND “FAILURE TO\r\nPROVIDE USER NOTICE”:</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(f) Petitioner being an intermediary, cannot invoke\r\nRule 8(1) as a launchpad of its tirade, when apparently the\r\nsaid Rule is promulgated to protect the interests of only\r\nusers of account and not others. Such a view finds <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sustenance from GORRIS vs. SCOTT38\r\n. Facts very briefly\r\nstated are: Plaintiff’s sheep were washed overboard while\r\nbeing transported by sea. He sued the defendant for\r\ndamages. He unsuccessfully attempted to establish\r\ncarrier’s negligence by showing that it had violated a\r\nregulation that required animals on shipboard being kept\r\nin pens of a certain size. Had the defendant complied with\r\nthe statutory requirement, the plaintiff argued, the sheep\r\nwould not have been washed overboard. The court refused\r\nto find negligence on the basis of this violation holding\r\nthat the Rule was not meant to protect animals from being\r\nwashed overboard, but rather to prevent spread of\r\ndisease. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In view of the above discussion, I am of the\r\nconsidered opinion that notice to users of account in\r\nterms of Rule 8(1) of the Website Blocking Rules is not\r\nmandatory and that in any event, the absence of such\r\nnotice does not avail to the intermediary as a ground for\r\nassailing the Blocking Orders.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(IX) AS TO DOCTRINE OF PROPORTIONALITY &\r\nITS INVOCABILITY FOR THE INVALIDATION OF\r\nIMPUGNED ORDERS:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(g) Rule 8(6) of Website Blocking Rules also\r\nsupports this view. Petitioner’s argument that this court\r\nshould lay down broad guidelines to regulate the exercise\r\nof such discretion, cannot be countenanced for more than\r\none reason: Firstly, there are enough checks & balances\r\nthat regulate the exercise of that power in the light of\r\nSHREYA SINGHAL. Secondly, the periodicity of such orders\r\nis a matter left to the discretion of the Executive in the\r\nexercise of which a host of factors would enter the fray\r\nand most of them are judicially unassessable. Classification\r\nof the cases for prescription of periodicity or reviewability,\r\nessentially is a matter of policy, and therefore, courts\r\ncannot interfere, the doctrine of separation of powers\r\nbeing one of the Basic Features of our Constitution vide\r\nINDIRA NEHRU GANDHI vs. RAJ NARAIN44. Assuming that\r\nthee is power to lay down guidelines for regulating\r\ndiscretion of the kind, this court declines its exercise at the\r\ninstance of a foreign entity engaged in a speculative\r\nlitigation. An argument to the contrary has trappings that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">run repugnant to sovereignty of the nation. Lastly to add,\r\nthere is no sufficient empirical data that supports the\r\nargument of abuse of power which is structurally\r\nexercised. No provision in the Act nor in the Website\r\nBlocking Rules is pointed out to show that the respondents\r\nare under a legal duty to consider the request for review of\r\nthe Blocking Orders. Thus, grievance in this regard, is not\r\njusticiable. If such requests are considered by the\r\nrespondents, that would be ideal & appreciable, is true.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In view of the above, I am of the considered opinion\r\nthat the impugned orders blocking the tweets/accounts\r\nfor indefinite period, are unassailable on the doctrine of\r\nproportionality.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(X) AS TO DELAY & LACHES, CULPABLE\r\nCONDUCT OF PETITIONER AND DENIAL OF WRIT\r\nREMEDY:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(c) The non-compliance with section 69A orders\r\nhas the potential to make the tweet more viral and spread\r\nto other platforms as well. One can imagine the damage\r\npotential when such objectionable tweets are allowed to be\r\ndisseminated despite interdiction. The damage potential is\r\ndirectly proportional to the delay brooked in the\r\ncompliance of such orders. Petitioner has demonstrably\r\nadopted a tactical approach to delay compliance and that\r\nshows its intent to remain non-compliant to Indian law. No\r\nplausible explanation is offered for the delay in\r\napproaching the Constitutional Court, either. Petitioner has\r\nabruptly complied with section 69A orders, a bit before\r\ncoming to court, though the 2nd respondent had issued\r\ncompliance requirement notice way back on 2 February\r\n2021 threatening: “It needs to be mentioned that Section\r\n69A(3) provides for specific penal consequences in case of\r\nnon-compliance of the directions issued under section 69A\r\nof the Act.” The penalty prescribed u/s 69A(3) for the\r\noffence of non-compliance of the order is imprisonment for\r\na term which may extend to seven years and/or fine. Even <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that did not deter the recalcitrant petitioner. The Central\r\nGovernment, in its discretion, did not choose to prosecute\r\nthe petitioner for the offence in question. It hardly needs\r\nto be reiterated that the Constitutional Courts do not come\r\nto the aid of litigants whose hands are soiled or who are\r\nindolent.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In view of the above, this court is of the considered\r\nopinion that petition is hit by delay & laches and culpable\r\nconduct of the petitioner and therefore, no relief can be\r\ngranted in the equitable jurisdiction constitutionally\r\nvested under Articles 226 & 227.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(XI) CULPABLE CONDUCT OF PETITIONER AND\r\nLEVY OF EXEMPLARY COSTS:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(c).... <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the above circumstances, this Petition being devoid\r\nof merits, is liable to be dismissed with exemplary costs,\r\nand accordingly, it is. Petitioner is levied with an\r\nexemplary cost of Rs.50,00,000/- (Rupees Fifty Lakh)\r\nonly, payable to the Karnataka State Legal Services\r\nAuthority, Bengaluru, within 45 days, and delay if brooked\r\nattracts an additional levy of Rs.5,000/- (Rupees Fife\r\nThousand) only, per day.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9f9a07c057d74de6fad25617e4b32510.JPG', '9bc0788e8d4b81dd00f39fec73db30e0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-01', 1, '', '', '2023-06-30 19:33:33', '2023-07-01 03:21:16');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3141, 'Ckebj1FGV393fXL6oKnjqS8xE', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Properties purchased by husband in the name of his wife are the absolute properties of the wife in view of Section 14 of the Hindu Succession Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vijaya Kumar and others Vs Vanajakshi and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 577 of 2014 decided on 1 December 2021.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Brief facts of the case that would be relevant for the purpose of disposal of this appeal are: The plaintiff had filed O.S.No.117/2008 before the court of Principal Senior Civil Judge, Davangere (for brevity \"the trial court\") against the defendants seeking for partition and separate possession to the extent of their 1/4th share in the suit schedule properties by metes and bounds.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>It is the case of the plaintiff that she is the daughter of one Revanappa, son&nbsp; of&nbsp; Karibasappa through his first wife&nbsp; Hanumanthamma.&nbsp; Defendant No.1 is her sister and one Siddesh is her brother. Said Siddesh died unmarried and therefore, according to the plaintiff, herself and defendant No.1 are the only children of Revanappa through his first wife Hanumanthamma. Hanumanthamma is said to&nbsp; have died about 20 years back and it is the case of&nbsp; the plaintiff that during the life time of Hanumanthamma, Revanappa had married one Prema and all of them lived together in a house constituting a joint family. It is the further case of the plaintiff that Revanappa had two children through his second wife Prema, who are defendant Nos.2 and 3&nbsp; in the&nbsp; present suit.&nbsp; Prema is said to have died in the year 2000 and Revanappa is said to have died on 15.07.2008 leaving behind the plaintiff and the defendants as his legal representatives.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>It is the further case of the plaintiff that defendant No.1 being the eldest member of the joint family was looking after the affairs of the joint family property and since defendant Nos.2 and 3 were minors, one Suvarnamma, who is the relative of Prema, was taking care of defendant Nos.2 and 3. Defendant No.1 in collusion with defendant Nos.2 and 3 tried to alienate the suit schedule property without the consent of the plaintiff and after coming to know about the same, the plaintiff insisted for partition of the suit schedule property and since defendant Nos.1 to 3 refused, she had filed O.S.No.117/2008 before the trial court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>Defendant Nos.1 to 3 appeared before the trial court on receipt of summons. Defendant&nbsp; Nos.2&nbsp; and&nbsp; 3, who were minors, were represented by their guardian Suvarnamma. Defendant No.1 filed written statement admitting the plaint&nbsp; averments&nbsp; regarding&nbsp; joint&nbsp; family and also admitted the relationship between the plaintiff and the defendants. However, defendant No.1 in her written statement contended that her father Revanappa married Prema after the death of his first wife and she denied that she was trying to alienate the suit schedule property by colluding with defendant Nos.2 and 3. Defendant No.1 further contended that she being the co-parcener is entitled for 1/3rd share in the suit schedule property and hence, sought for a decree in her favour to the extent of 1/3rd share in the suit schedule property. Defendant Nos.2 and 3 being minors represented through their guardian by name Suvarnamma filed their written statement contending that Revanappa had married Prema after the death of his first wife Hanumanthamma. The&nbsp; said Prema had died in the year 2000. After the death of Prema, Revanappa married Suvarnamma, who is the sister of Prema. After the death&nbsp; of&nbsp; Revanappa,&nbsp; Suvarnamma and defendant Nos.2 and 3 being the wife and children of Revanappa succeeded to the estate of late Revanappa and they also contended that the suit schedule item Nos.2 and 3 is the self-acquired property of Prema and hence, it is contended that the plaintiff&nbsp; and&nbsp; defendant No.1 do not have any share in the&nbsp; suit&nbsp; schedule&nbsp; item nos.2 and 3 property. They also contended that suit schedule item No.1&nbsp; property&nbsp; is&nbsp; the&nbsp; self-acquired property of Revanappa and he had registered a Will in favour of defendant Nos.2 and 3 and Suvarnamma, who is the third wife of Revanappa.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>This court on 21.07.2014 while admitting this regular second appeal had framed the following substantial questions of law:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>\"1. Whether the courts below were right in holding that the&nbsp; suit&nbsp; schedule&nbsp; properties&nbsp; are the joint family properties in the absence of any evidence as to the income to purchase the suit schedule properties?&nbsp;</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>2. Whether the courts below having held that there was no joint family, was right in holding that the property purchased by Revanappa belongs to the Joint Family?\"</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>The appeal was taken up for hearing on 17.11.2021 and after hearing the learned counsel for the appellants for some time, this court has framed the additional issue to be considered in this appeal, which reads as follows:&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>\"Whether the suit item Nos.2 and 3 purchased in the name of Smt.Prema, the second wife of Revanappa, will become her absolute property having regard to Section 14 of the Hindu Succession Act&nbsp; and&nbsp; if&nbsp; so, whether the courts below were justified in decreeing the suit in respect of item Nos.2 and 3 of the suit schedule property?\"<br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>It is not in dispute that suit schedule item Nos.2 and 3 properties are purchased in the name of Prema, who is the mother of defendant&nbsp; Nos.2&nbsp; and&nbsp; 3. The said sale deeds dated 16.04.1988 and 20.02.1997 have been marked as Exs.D2 and D3 respectively. The trial court has held that Revanappa,&nbsp; who&nbsp; is&nbsp; the husband of Prema, had purchased the&nbsp; suit&nbsp; schedule item Nos.2 and 3 properties in her name from the income of the joint family and therefore, had decreed the suit insofar as it relates to suit schedule item Nos.2 and 3 properties holding that defendant Nos.1 to 3 and Suvarnamma are entitled for 1/5th share in the suit schedule property. Even if it is presumed that the suit schedule properties are&nbsp; purchased by her husband in the name of Prema, in view of Section 14 of the Hindu Succession Act, the property purchased in the name of a female becomes her absolute property.&nbsp;The Hon\'ble Supreme Court in the case of Jagannathan Pillai (supra) has held as under:&nbsp;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>\"It is settled that the limited estate or limited ownership of a Hindu female would enlarge into an absolute estate&nbsp; or&nbsp; full ownership of the property in question in the following fact situation:</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(1)<span style=\"white-space: pre;\">	</span>Where she acquired&nbsp; the&nbsp; limited estate in the property before or after the commencement of the Act provided she was in possession of&nbsp; the&nbsp; property at the time of the coming into force of the Act on June&nbsp; 17, 1956.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\"><i>(2)<span style=\"white-space: pre;\">	</span>Even if the property in question was possessed by her in lieu of her right to maintenance as against the estate of her deceased&nbsp; husband or the joint family property, she would be entitled to become a full or absolute owner having regard to the fact that the origin of&nbsp; her right was traceable to the right against her husband’s estate.\"</i></font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space: pre;\">	</span>In the case of Punithavalli Ammal (supra) the Hon\'ble Supreme Court in paragraph-6 has held as follows:&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>\"6. . . . . . . . . . . . . . . . . In our opinion the rights conferred on a Hindu female under s. 14(1) of the Act are not restricted or limited by any rule of Hindu law. The section plainly says that the property possessed by a Hindu female on the date the Act came into force whether acquired before or after the commencement of the Act shall be held by her as full owner thereof. That provision makes a clear departure from the Hindu law texts or rules. Those texts or rules cannot be used for circumventing the plain intendment of the provision.\"&nbsp;</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\">17. In the case of Eramma (supra) the Hon\'ble Supreme Court has held that the property possessed by a female Hindu, as contemplated in Section 14 of the Hindu Succession Act, is clearly property to which she has acquired some kind of title whether before or after the commencement of the Act. It may be noticed that the Explanation to Section 14(1) sets out the various modes of acquisition of the property by a female Hindu and indicates that the section applies only to property to which the female Hindu has acquired some kind of title, however, restricted the nature of her interest may be. The words \"as full owner thereof and not as a limited owner\" as given in the last portion of sub- section (1) of Section 14 clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership. In other words, Section 14(1) of the Act contemplates that a Hindu female who, in the absence of this provision, would have been limited owner of the property, will now become full owner of the same by virtue of said section.</font><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space: pre;\">	</span>In the case on hand, there is no dispute that suit schedule item Nos.2 and 3 properties were purchased in the name of Smt. Prema, who is&nbsp; the mother of defendant Nos.2 and 3&nbsp; and Exs.D2 and&nbsp; D3 are the sale deeds in respect of the said properties, which stand in the name of Prema. From a reading of said sale deeds, it is very clear that interest of Prema in the suit schedule item Nos.2 and 3 properties, which are the subject matter of said sale deeds, are&nbsp; not limited. Further, having regard to Section 14 of the Hindu Succession Act, since the suit&nbsp; schedule&nbsp; item Nos.2 and 3 properties has been purchased in the name of Smt.Prema, she acquires the absolute title over the suit schedule item Nos.2 and 3 properties.&nbsp; This aspect of the matter has been completely overlooked by the courts below and thereby the courts below have erred in coming to a conclusion that even though the sale deeds in respect of suit schedule item Nos.2 and 3 properties stood in the name of Prema, since she had no income of her own, it has to be presumed that her husband late Revanappa had purchased the suit schedule property in her name. Having regard to the intend and&nbsp; object behind Section 14 of the Hindu Succession Act, the courts below are not justified in holding that Smt.Prema was not the absolute owner of the suit schedule item Nos.2 and 3 properties. Under the circumstances, the trial court has erred in answering issue No.4 in the negative. Accordingly, the substantial questions of law framed by this court on 21.07.2014 are answered in the negative and the additional substantial question of law framed on 17.11.2021 is answered in the affirmative.&nbsp;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>The regular second appeal is allowed.</b></font></span></p>', 'abd427b3cf2420da99727db4cfbba440.jpeg', '9ce6eec2e9dc35bbd3f900461366fceb.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-01', 1, '', '', '2023-07-01 13:02:30', '2023-07-01 13:02:30'),
(3144, 'LkFxUv9G8SZNI5hDMNhOORLtX', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Application under Order 21 Rule 29 CPC seeking stay of execution proceedings on the ground that the suit is instituted by the Judgment Debtor is maintainable only if the suit was instituted prior to filing of the execution petition. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ningaiah Vs Basavaraju.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 21858 of 2021 decided on 5 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.R. Krishna Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">This petition by the Decree holder in Ex.No.58/2015 is directed against the impugned order dated 16.03.2020 passed on I.A.No.3 by the Addl.Civil Judge & JMFC, Mandya, whereby the said application filed by the respondent – Judgment debtor seeking stay of execution proceedings pending disposal of the suit in O.S.No.80/2016 filed by the respondent – Judgment debtor was allowed by the Executing court.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The material on record discloses that the petitioner – Decree holder filed the instant execution proceedings in Ex.No.58/2015 seeking to enforce, implement and execute the judgment and decree dated 02.06.2012 passed in O.S.No.256/2005, which was confirmed by the first appellate court in R.A.No.34/2012. During the pendency of the said execution proceedings, the respondent – judgment debtor has instituted one more suit in O.S.No.80/2016 in the year 2016, which is also pending adjudication before the trial court. Under these circumstances, the respondent filed the instant application I.A.No.3 invoking Order 21 Rule 29 CPC and sought for stay of the execution proceedings pending disposal of the aforesaid suit in O.S.No.80/2016 filed by him. The said application having been opposed by the petitioner – Decree holder, the trial court proceeded to pass the impugned order allowing I.A.No.3, aggrieved by which, the petitioner – Decree holder is before this Court by way of the present petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>A perusal of the material on record including the impugned order will indicate that the trial court has failed to consider and appreciate the well settled position of law that in order to invoke Order 21 Rule 29 CPC so as to enable the Judgment Debtors to seek stay of further execution proceedings, it is absolutely essential that the suit filed by him should be anterior and prior in point of time of the institution of the execution proceedings. While interpreting the principles underlying under Order 21 Rule 29 CPC, this Court in the case of Sikander Mohammed Ali Dalaf& others vs. Babu Hanumanth Mindolkar & others – W.P.No.103071/2017 dated 18.01.2023, held as under:-</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>“ 17. As can be seen from the aforesaid judgments, the principles underlying Order 21 Rule 29 CPC can be summarized as under:</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>a)<span style=\"white-space: pre;\">	</span>That, Order 21 Rule 29 CPC is applicable only if the suit and the execution proceedings referred to in the said provisions are pending before the very same Court and not before two different courts which are not of co-ordinate jurisdiction;</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>b)<span style=\"white-space: pre;\">	</span>That the said provisions will not apply if the suit is instituted subsequent to institution of the execution proceedings: In other words, the said provision would apply only if the suit is instituted prior to institution of the execution proceedings and in the event the execution proceedings have already been instituted, mere institution of suit subsequently and its pendency cannot be made the basis to invoke Order 21 Rule 29 CPC; C) The power and jurisdiction to stay its own proceeding pending before itself by the executing Court has to be exercised only under extraordinary and exceptional circumstances and not as a matter of course and care/ caution has to be taken by the executing Court to find out if staying its own proceedings would result in abuse of process of law and in that event, the executing Court would not stay further proceedings under these provisions.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>18.<span style=\"white-space: pre;\">	</span>Under these circumstances, having regard to the facts of the case on hand, I am of the considered opinion that this is not a fit case which would enable the executing Court to exercise its discretion to stay execution proceedings and on this ground also, the impugned order passed by the executing Court deserves to be set aside.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\"><i>19.<span style=\"white-space: pre;\">	</span>Insofar as the reliance placed by the executing Court on the judgment of this Court in the case of U.Sadanand Udupa Vs. Smt. T. Kusuma Shedthi (2011) 5 KCCR 4017 is concerned, the said judgment is clearly distinguishable on facts and the same cannot be applied to the factual situation obtaining in the instant case. Consequently, the finding recorded by the executing Court relying upon the said judgment is clearly erroneous and unsound. “</i></font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">5.<span style=\"white-space: pre;\">	</span>As can be seen from the aforesaid judgment, this Court has categorically held that an application under Order 21 Rule 29 CPC seeking stay of execution proceedings on the ground that the suit has already been instituted by the Judgment Debtor would be maintainable only if the said suit was instituted prior to institution of the execution proceedings. In the instant case, it is an undisputed fact that the petitioner – Decree holder has instituted the execution proceedings on 28.03.2015 whilst the respondent – Judgment Debtor has subsequently filed the aforesaid suit in O.S.No.80/2016 in the year 2016. Under these circumstances, I am of the considered opinion that the trial court clearly fell in error in allowing I.A.No.3 and the same has occasioned failure of justice warranting interference by this Court in the present petition.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space: pre;\">	</span>Petition is hereby allowed.</b></font></span></p>', 'a10526f7b968710bbee2b643e4f3f4f8.JPG', 'e3dbfd59a66c036bd358a49d76b6e802.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-03', 1, '', '', '2023-07-02 17:55:36', '2023-07-03 03:20:40'),
(3145, 'jXZVPuPEgT17syyhIYnT5Yq4S', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque bounce case. An independent non-executive director, who is not aware of day-to-day affairs of the company, cannot be held liable under the N.I. Act. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">Tilak Raj Bajalia and others Vs M/S Oswal Minerals Limited and others.</span></b><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">Criminal Petition 3186 of 2021 decided on 8 June 2023.</span></b><o:p></o:p></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">Justice M. Nagaprasanna.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioners are before this Court calling in question proceedings in C.C.No.5389/2020, arising out of P.C.R. No.15259/2020, registered for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘the Act’ for short) </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3. Facts in brief, as borne out from the pleadings are as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The respondent – Oswal Minerals Limited is the complainant. Oswal Minerals Limited had certain transactions with another Company – M/s.Isinox Limited. In furtherance of such transactions, it transpires that M/s. Isinox Limited had issued certain cheques to Oswal Minerals Limited – complainant. On the presentation of the said cheques by Oswal Minerals Limited – complainant, the same were dishonoured for the reason ‘payment stopped by the drawer’. It is then the complainant seeks to initiate steps by issuing a notice to both Isinox Limited and another Company - India Steel Works Limited. After receipt of the reply, the complainant initiates proceedings invoking Section 200 of the Cr.P.C. before the concerned Court. The concerned Court takes cognizance, issues summons and registers a case in C.C.No.5389/2020. The registration of C.C.No.5389/2020, against the petitioners is what drives the petitioners to this Court in the subject petition. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7. The afore-narrated facts are not in dispute and requires no reiteration. It is also not in dispute that petitioner No.1 – accused No.2 and petitioner No.5 - accused No.9 are independent non-executive directors of Isinox Limited. The Isinox Limited and the complainant – Oswal Minerals Company had certain transactions and those transactions lead to issuance of certain cheques, which were dishonoured and dishonouring of cheques leads the complainant to the concerned Court to initiate proceedings under Section 138 of the Act in C.C.No.5389/2020. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8. A perusal at the documents appended to the petition would clearly indicate that petitioner No.1 - accused 2 and petitioner No.5 – accused No.9 are independent non-executive directors of Isinox Limited and therefore, cannot be held that they know the day-to-day affairs of the Isinox Limited, much less, being aware of the issuance of the cheques to the complainant – Oswal Minerals Limited, which is the subject matter of the petition before the concerned Court. Therefore, the proceedings against the independent non-executive directors if permitted to continue before the concerned Court would become an abuse of the process of the law. The Apex Court in the case of SUNITA PALITA V. PANCHAMI STONE QUARRY reported in (2022) 10 SCC 152, has held as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“42. Liability depends on the role one plays in the affairs of a company and not on designation or status alone as held by this Court in S.M.S. Pharmaceuticals [S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89 : 2005 SCC (Cri) 1975] . The materials on record clearly show that these appellants were independent, non-executive Directors of the company. As held by this Court in Pooja Ravinder Devidasani v. State of Maharashtra [Pooja Ravinder Devidasani v. State of Maharashtra, (2014) 16 SCC 1 : (2015) 3 SCC (Civ) 384 : (2015) 3 SCC (Cri) 378] a non-executive Director is not involved in the day-to-day affairs of the company or in the running of its business. Such Director is in no way responsible for the day-to-day running of the accused Company. Moreover, when a complaint is filed against a Director of the company, who is not the signatory of the dishonoured cheque, specific averments have to be made in the pleadings to substantiate the contention in the complaint, that such Director was in charge of and responsible for conduct of the business of the Company or the Company, unless such Director is the designated Managing Director or Joint Managing Director who would obviously be responsible for the company and/or its business and affairs.” </i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In the light of the afore-extracted judgment of the Apex Court, an independent non-executive director, who is not aware of day-to-day affairs of the company, cannot be held liable or responsible for conduct of the business of the company </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>a. The criminal petition is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><o:p></o:p></p>', '0c5b6cb581b2403161125e461704b3dd.jpeg', 'bc80cd9c2c8b7893886240c8fb643055.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-03', 1, '', '', '2023-07-02 18:00:43', '2023-07-03 12:25:46');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3147, 'Qn3Uex5wszRHdFvkCmkuMtj7w', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Failure to declare assets and liabilities. Defaulting member of a Gram Panchayat need not to be issued a show cause notice or be heard before removal from the office. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Lalitabai Vs The Commissioner and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 200760 of 2022 decided on 20 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioner is aggrieved by the impugned order\r\ndated 14.02.2022 at Annexure-E under which he was\r\ndisqualified and removed from office on account of\r\nnon-compliance with the requirements of Section <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">43B of the Karnataka Gram Swaraj and Panchayat\r\nRaj Act, 1993 (for short, ‘the Act’).</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The points that would arise for determination in the\r\npresent matter are:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n1)Whether a defaulting member of a Gram\r\nPanchayat under Section 43B(1) of the\r\nKarnataka Gram Swaraj and Panchayat Raj\r\nAct, 1993 is required to be issued a show <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cause notice and be heard before removal\r\nfrom the office?\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2)What order?</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Answer to Point No.1: Whether a defaulting\r\nmember of a Gram Panchayat under Section\r\n43B(1) of the Karnataka Gram Swaraj and\r\nPanchayat Raj Act, 1993 is required to be\r\nissued a show cause notice and be heard before\r\nremoval from the office?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">9.1. It is not in dispute that the petitioner was\r\ndeclared as elected on 30.12.2020. Thus, in\r\nterms of Section 43B, the petitioner was\r\nrequired to, within three months from the date\r\nof being elected and assuming office, file a\r\ndeclaration of movable and immovable assets\r\nand liabilities of more than two lakhs owned by\r\nhim/her and by all the members of his/her joint\r\nfamily in the form prescribed by the State\r\nElection Commission through the Panchayat\r\nDevelopment Officer of concerned Gram\r\nPanchayat. Thus, the declaration of the results\r\nhaving occurred on 30.12.2020, the first </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">meeting having held on 18.01.2021 when all\r\nthe members were sworn as also the election of\r\nAdyaksha and Upadyaksha took place, it was\r\nbut required that within three months from\r\n18.01.2021 the declaration in terms of Section\r\n43B(1) of the Act was required to be filed i.e.,\r\non or before 18.04.2021.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.3. Section 43B of the Karnataka Gram Swaraj and\r\nPanchayat Raj Act, 1993 reads as under:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>43B. Members to declare assets and\r\nliabilities.–</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>(1) Every member shall within three\r\nmonths from the date of commencement of his\r\nterm of office and until the expiry of his term in\r\nevery calendar year, and within one month of the\r\nend of the financial year, file a declaration of the\r\nmovable and immovable assets and liabilities of\r\nmore than two lakhs owned by him and by all the\r\nmembers of his joint family in the form as may be\r\nprescribed before the state election commission\r\nthrough the panchayat development officer of\r\nconcerned Gram Panchayat:\r\nProvided that, where the term of a member\r\ncommences before two months of the end of the\r\nfinancial year such member may file his\r\ndeclaration within two months after the\r\ncommencement of the following financial year.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n(2) the panchayat development officer of the\r\nconcerned panchayat shall receive the\r\ndeclarations filed by all the members and forward\r\nthem to the state election commission in the first\r\nweek of May of that year and, in the case of late\r\nsubmissions, in the first week of July of the year,\r\nwith a statement of members who have filed and\r\nwho have not filed the declaration.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>(3) a member, who after filing a declaration\r\nunder sub-section (1), acquires or disposes of any\r\nproperty or incurs any liability shall file a\r\ndeclaration to that effect before the state election\r\ncommission through the panchayat development\r\nofficer of the panchayat, within forty-five days\r\nfrom the date of such acquisition or disposal, as\r\nthe case may be, and the panchayat development\r\nofficer shall follow the same procedure as in subsection (1).</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>(4) if the member does not file the declaration\r\nwithin the time without reasonable cause or the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">declaration is found to be false, shall be deemed\r\nto have committed guilty of misconduct and the\r\nstate election commission shall after giving an\r\nopportunity of hearing, remove him from\r\nmembership and declare his seat vacant.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9.4. A perusal of the above provision would indicate\r\nthat there is an obligation which has been\r\nimposed on the member of the Panchayat to\r\nsubmit a declaration within a period of three\r\nmonths from the date of assuming office. The\r\nonly exception made is by proviso to Section\r\n43B(1) of the Act, if the term commences\r\nbefore two months of end of the financial year,\r\nsuch declaration could be filed within two\r\nmonths after the commencement of the\r\nfinancial year i.e., in such cases, the time\r\nperiod of four months is granted to file the\r\ndeclaration thereby extending the time period\r\nby one month. Other than this extension, there\r\nis no particular exemption, which is available to\r\nany of the members. \r\n-</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.6. In terms of Section 43B(3) of the Act, in the\r\nevent of any member acquiring or disposing\r\nany property or incurring any liability, a further\r\ndeclaration is required to be filed within 45 days\r\nfrom the date of such acquisition, disposal or\r\nincurring liability.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n9.7. The obligation under Section 43B(1) and\r\nSection 43B(3) of the Act is on the member to\r\nfile the necessary declarations. In terms of\r\nSection 43B(4) of the Act, if a member does not file a declaration within the time without\r\nreasonable cause or the declaration is found to\r\nbe false shall be deemed to be guilty of\r\nmisconduct and the State Election Commission\r\nafter giving an opportunity of hearing can\r\nremove him from membership and declare his\r\nseat vacant. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.8. Section 43B(4) of the Act comprises of two\r\nsituations (1) where a declaration is filed\r\nbeyond time with or without reasonable cause\r\n(2) where a declaration is filed and found to be\r\nfalse.<span style=\"font-size: 12pt;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.9. The above indicates that default in compliance\r\nwith Section 43B(1) of the Act is not envisaged.\r\nIt is only when there is a cause shown would a\r\nhearing required to be given to ascertain\r\nwhether a cause for the delay in filing a\r\ndeclaration is reasonable or not. When the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">declaration itself is not filed, the question of\r\nshowing cause or ascertaining whether the\r\ncause shown is reasonable or not would not\r\narise.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>9.10.Insofar as second portion, when the declaration\r\nis found to be false, then in that case, there is\r\nan opportunity which is required to be given so\r\nas to ascertain if there is any falsity and to give\r\nan opportunity to the member to show cause as\r\nto how the declaration made is correct and not\r\nfalse.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9.11.Thus, only when there is a cause shown in the\r\nlate filing of the declaration and/or when the\r\ndeclaration is found to be false, would an\r\nopportunity of hearing be required to be given.\r\nSuch a hearing in my considered opinion would\r\nnot be required to be made available if the\r\nmember were to not even file the declaration.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.13.Section 43A and Section 43B of the Act cannot\r\nbe said to be in pari materia and/or relating to\r\nsimilar kind of defaults. Section 43A of the Act\r\ndeals with serious allegations made against the\r\nmember of misconduct in discharge of duties or\r\ndisgraceful conduct, incapable of performing of\r\nduties, persistently remiss in performing duties,\r\nmedically unfit, insolvency or of unsound mind,\r\netc. These are all issues which are required to\r\nbe established after giving an opportunity to\r\nthe delinquent member inasmuch as there\r\nbeing allegations which are made against such\r\ndelinquent member.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.14.In the present case, there being a statutory\r\nobligation on a member to file a declaration of\r\nmovable and immovable assets and liabilities of\r\nmore than two lakhs owned by him/her or\r\nmembers of his/her joint family within two\r\nmonths of assuming office, if the same were <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not to be filed, then the question of providing a\r\nhearing would not arise. A hearing can only be\r\nprovided if cause is shown for belated filing.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9.15.The justification now being sought to be made\r\nby learned counsel for the petitioner that due to\r\ncovid pandemic, the declaration could not be\r\nfiled, in my considered opinion, is not\r\nsustainable, inasmuch as the petitioner being a\r\nmember of a Gram Panchayat, cannot claim\r\ncovid pandemic as an excuse when all elected\r\nmembers and government officials are\r\nfunctioning. Be that as it may, a notice was\r\nissued by respondent No.1 on 31.12.2021\r\nproviding an opportunity to the petitioner to file\r\na declaration on an online mode which was also\r\nnot utilized by the petitioner. What was only\r\nrequired for the petitioner was to submit a\r\ndeclaration to the Panchayat Development\r\nOfficer of the Panchayat in which the petitioner </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was elected, which was also not done by the\r\npetitioner. Hence, the ground of covid\r\npandemic cannot justify the action of the\r\npetitioner.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9.16.In that view of the matter, I answer Point No.1\r\nby holding that no show cause notice is\r\nrequired to be issued to a defaulting member of\r\na Gram Panchayat under Section 43B(1) of the\r\nKarnataka Gram Swaraj and Panchayat Raj Act,\r\n1993 when there is no declaration filed at all,\r\nfurthermore hearing before removal from the\r\noffice would also not be required. Only when\r\nthere is a cause shown in the late filing of the\r\ndeclaration and/or when the declaration is\r\nfound to be false, would an opportunity of\r\nhearing be required to be given.</span><span style=\"font-size: 12pt;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Answer to Point No.2: What order?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.1.In view of my answer to Point No.1, I do not\r\nfind any infirmity in the impugned order. The\r\nWrit Petition, not making out any grounds,\r\nstands dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'aef8637048681af1de7c956652f4c514.JPG', 'dbf232ede8b6147c49019c32f912ab2e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-03', 1, '', '', '2023-07-02 18:25:19', '2023-07-03 10:30:29'),
(3143, 'JE1YmGs0wo7RiVFlmAN3euYam', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka SC/ST (PTCL) Act. Initiation of proceedings 7 years after the sale that too after receiving the entire sale consideration is hit by doctrine of unreasonable delay. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Erappa Vs Assitant Comissioner and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Appeal 100265 of 2023 decided on 23 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.G. Pandit and Justice Vijaykumar A Patil.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Brief facts giving rise to filing of this appeal are that, the Respondent No.3 invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking prayer to issue writ of certiorari to quash the orders dated 22.08.2015 and 12.09.2019 passed by respondent No.1 and Respondent No.2, at Annexure-A and Annexure-B to the writ petition.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. It is averred that the land bearing Sy.No.5/1 measuring 3 acres situated at Alla Nagar, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Koppal Taluk and District was purchased by the respondent No.3 from the appellant vide registered sale deed 09.03.2005. It is further averred that the appellant who has sold the property to the respondent No.3, had acquired the property vide grant order dated 04.09.1978 and the appellant belongs to the deprived community.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. It is also averred that the appellant has initiated the proceedings under Section 4 and 5 of the Karnataka Schedule Caste and Schedule Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as ‘PTCL Act’, for short). The respondent No.1 vide order dated 22.08.2015 has held that the sale transaction between the parties is in violation of the provisions of the PTCL Act. Being aggrieved by the order of the Assistant Commissioner dated 22.08.2015, the respondent No.3 has filed the appeal challenging the order dated 22.08.2015 before <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the respondent No.2 Deputy Commissioner, Koppal. The respondent No.2/Deputy Commissioner dismissed the appeal filed by the respondent No.3 vide order dated 12.09.2019 by confirming the order of the Assistant Commissioner dated 22.08.2015. The respondent No.3 has assailed the order dated 22.08.2015 of the respondent No.1 and 12.09.2019 of the respondent No.2 in W.P.No.114449/2019. Learned Single Judge allowed the writ petition by quashing the impugned orders. In the above factual matrix the present appeal has been filed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. It is not in dispute that the subject land i.e., land bearing Sy.No.5/1 measuring 3 acres situated at Alla Nagar, Koppal Taluk and District was granted to the appellant on 04.07.1978 and the appellant belongs to deprived community. It is also not in dispute that the appellant has alienated the subject land in favour of the respondent No.3 vide registered sale deed dated 09.03.2005 and thereafter the revenue records were mutated in the name of respondent No. 3/purchaser.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">10. The appellant has initiated proceedings under Section 5 of t he PTCL Act for resumption of land on the ground that the subject land has been alienated in violation of Section 4 (2) of the PTCL Act. The Assistant Commissioner allowed the application of the grantee for resumption and the same was confirmed by the Deputy Commissioner in appeal. It is also not in dispute that the subject land was </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">alienated/sold by the appellant grantee on 09.03.2005 in favour of the respondent No.3 and has initiated proceedings for resumption of land after lapse of 7 years. The land in question is utilised for the purpose of industrial activities and the factory building has been constructed on the land in question. When things stood thus, the initiation of proceedings by the grantee after a period of 7 years is an after thought, that too after receiving the entire sale consideration from the respondent No. 3. The initiation of proceedings under Section 5 before the Assistant Commissioner is hit by doctrine of unreasonable delay. The appellant grantee has contended that the purchaser has played fraud and in the guise of execution of mortgage deed has got executed the sale deed and in support of the said contention, he has relied on the unregistered mortgage deed dated 19.11.2015 entered between neighbouring landowners and the respondent No. 3/purchaser. The said </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contention is required to be rejected for the reason that the appellant grantee cannot make bald assertion of fraud without there being any proper pleading supported with acceptable evidence. Mere reliance on some unregistered mortgage deed contending that fraud has been played on the grantee cannot be accepted. Moreover, the appellant/grantee with open eye has executed registered Sale Deed, when the appellant has executed registered sale deed it is not open for him to contend that, in the guise of mortgage deed, sale deed, was got executed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. The Hon’ble Supreme Court in the case of Nekkanti Rama Laxmi referred supra has held that the application for restoration and resumption of land should be filed within a reasonable time. In the instant case the appellant grantee has filed an application for restoration and resumption after a period of 7 years, the said time cannot be termed as</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reasonable period. hence, the case on hand is clearly covered by the decision of the Hon’ble Supreme Court in the case of Nekkanti Rama Laxmi supra.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. Learned Single Judge has considered the case of the grantee on merits and on appreciation of material on record, has categorically held that the appellant has initiated the proceedings under Section 5 of PTCL Act after lapse of 7 years and after third party interest has been created, we do not find any error in the aforesaid findings of the learned Single Judge calling for interference in the present appeal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>13. For the aforementioned reasons, we do not find any merit in this appeal. The same fails and hereby dismissed.</b></span></p>', '7a107f1f1245066ba400c02a42a675d2.jpeg', '6111ac1f83c33cdd161ae84acf3a522a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-03', 1, '', '', '2023-07-02 17:53:55', '2023-07-03 06:23:53'),
(3148, 'pQ4LAEHqp44ZJxjFgvFQO2USf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'If deposition of the child witness inspires confidence in the mind of the Court and there is no improvement or tutoring, the Court may rely upon the same. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Veda Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 762 of 2017 decided on 16 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Somashekar and Justice Rajesh Rai K.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This filed by the convicted accused, is directed\r\nagainst the Judgment of conviction and order of sentence\r\ndated 01/02.03.2017 passed by the II Addl. District &\r\nSessions Judge, Hassan, in S.C.No.228/2014 convicting\r\nhim for the offences punishable under Sections 448, 323,\r\n341 and 302 of IPC and sentencing him to undergo simple\r\nimprisonment for a period of one year and to pay a fine of\r\nRs.500/- for the offences punishable under Section 448\r\nIPC; further to undergo simple imprisonment for a period\r\nof one year and to pay a fine of Rs.500/- for the offence\r\npunishable under Section 323 of the IPC; further to\r\nundergo simple imprisonment for a period of 15 days and\r\nto pay a fine of Rs.200/- for the offence punishable under\r\nSection 341 of the IPC and to undergo simple\r\nimprisonment for life and to pay a fine of Rs.1,00,000/- for\r\nthe offence punishable under Section 302 of the IPC. All\r\nthe sentences were to run concurrently.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The brief facts of the prosecution case is that the\r\nappellant / accused is related to the deceased Ratnamma.\r\nIt is stated that prior to 18 years, the said Ratnamma was\r\ngiven in marriage to one Manjunatha of Chatranahalli\r\nvillage and after their marriage, they are said to have lived\r\nat Kuppalli. Prior to seven years of the alleged incident,\r\nher husband Manjunatha died and deceased Ratnamma\r\nstarted living along with her minor daughter in a rented\r\nhouse belonging to one Channegowda / PW-14. During\r\nthis time, Ratnamma is said to have developed intimacy\r\nwith one Rafiq /PW-13 and they were in a live-in\r\nrelationship. Appellant / accused being enraged by their\r\nrelationship, is said to have advised Ratnamma not to\r\ncontinue such relationship. In spite of his advise,\r\nRatnamma is said to have continued her relationship with\r\nRafiq. Being annoyed with the same, the appellant /\r\naccused, as on 06.04.2014 at about 1.00 p.m., is said to\r\nhave entered into Ratnamma’s house unlawfully and had\r\nquarreled with her and had assaulted her with his hands\r\nand legs. Though she had tried to run away in order to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">escape from his clutches, appellant / accused is said to\r\nhave chased her by holding a sickle and near one\r\nVenkatesha’s house / PW-4, the appellant had obstructed\r\nher and murdered her by throttling her neck. Hence, a\r\ncomplaint was lodged by Chandregowda / PW-1 and based\r\non the said complaint, an FIR was registered by the\r\nrespondent / police. Subsequently, after investigating the\r\nmatter, and after collecting necessary documents and\r\nother evidence, the respondent / police laid the chargesheet against the accused for offences punishable under\r\nSections 448, 323, 341 and 302 of IPC.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. On committal of the case to the Court of Sessions,\r\nthe learned Sessions Court framed charges against the\r\naccused for the aforesaid offences. However, the accused\r\ndenied the charges leveled against him and claimed to be\r\ntried. In order to bring home the guilt of the accused for\r\nthe charges leveled against him, the prosecution examined\r\nin total 22 witnesses as PW-1 to PW-22 and so also\r\nmarked 20 documents as Exhibits P1 to P20. The\r\nprosecution also marked 5 material objects as MO-1 to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">MO-5. However, the accused neither examined any\r\nwitnesses in his favour nor marked any documents. The\r\ndefence of the accused was one of total denial and that of\r\nfalse implication. Subsequently, incriminating statement\r\nwas recorded under Section 313 Cr.P.C. and the accused\r\nhas denied the truth of the evidence of the prosecution\r\nadduced so far. He did not come forward to adduce any\r\ndefence evidence.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Having heard the learned counsel for the\r\nappellant and the State, the point that would arise for our\r\nconsideration is,\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>“i. Whether the impugned judgment\r\nchallenged herein suffers from any perversity or\r\nillegality warranting interference by this Court?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ii. Whether the learned Sessions Judge is\r\njustified in convicting the accused for the\r\noffences punishable under Sections 448, 323,\r\n341 and 302 of IPC?” <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. Taking into consideration the mitigating\r\ncircumstances and the sudden quarrel between the\r\naccused and the deceased, it is seen that the incident was\r\ncaused in the absence of any intention. In the\r\ncircumstances, the conviction has to be made under the\r\nprovisions of Section 300 Exception (1) IPC, which is\r\npunishable under Section 304 Part II of IPC. The\r\nprovisions of Exception (4) to Section 300, would attract\r\nthe facts and circumstances of the present case, which\r\nreads thus:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>”Exception 4.--Culpable homicide is not\r\nmurder if it is committed without premeditation\r\nin a sudden fight in the heat of passion upon a\r\nsudden quarrel and without the offender having\r\ntaken undue advantage or acted in a cruel or\r\nunusual manner.”</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. Admittedly, in the present case, the learned\r\ncounsel for the appellant vehemently contended that the\r\ndeceased was suffering from some heart ailments and\r\ninitially, the Doctor has failed to give any opinion in the PM\r\nreport and he gave his final opinion as per Exhibit P15.\r\nHence, this Court has also perused the photo of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">deceased, which clearly depicts that there are no injuries\r\nfound on the body of the deceased Ratnamma. Admittedly\r\nas per the final opinion of the Doctor, the death of the\r\ndeceased was due to strangulation. It is the specific case\r\nof the prosecution that the deceased was holding a sickle\r\nin his hand and chased the deceased and thereafter\r\ncommitted her murder. However, he committed her\r\nmurder by strangulating her neck. Hence, it can be easily\r\nconcluded that the accused had no such intention to\r\ncommit the murder of the deceased. The entire incident\r\noccurred in the spur of the moment. At this juncture, it is\r\nrelevant to refer to the dictum of the Hon’ble Supreme\r\nCourt in the case of AHMED SHAH AND ANOTHER VS.\r\nSTATE OF RAJASTHAN (2015)(3) SCC 93. At paragraph\r\n21, it is held as under</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\"21. As elaborated earlier, complainant party\r\nwent to the field and Sabbir Shah was armed with\r\ngun. In the sudden fight, there was a scuffle. During\r\nthe course of scuffle, the appellants inflicted injuries\r\non the deceased Sabbir Shah. The accused tried to\r\ngrapple the gun from Sabbir Shah. There was no <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">premeditation and that the incident was the result of\r\nsudden fight. In the scuffle, other accused inflicted\r\ninjuries on Rakhu Shah and PW-8 Rakhia.\r\nConsidering the facts and circumstances of the case,\r\nin our view, the present case cannot be said to be a\r\ncase punishable under Section 302 IPC but a case\r\nfalling under Exception 4 to Section 300 IPC. Since\r\nthe appellants inflicted injuries on the neck and\r\nscalp of Sabbir Shah with the intention of causing\r\ndeath and the act of the accused- appellants is\r\npunishable under Section 304 Part I IPC.”</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. The Hon’ble Supreme Court, while considering\r\nthe provision of Section 302 read with Section 34 and\r\nSection 394 read with Section 34 of the IPC and also\r\nSection 27 of the Indian Evidence Act in the case of\r\n(DIGAMBER VAISHNAV AND ANOTHER VS. STATE OF\r\nCHHATTISGARH (2019)(4) SCC 522)), held at Paragraphs\r\nnos.18 and 19 thus:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>18. In Sujit Biswas v. State of Assam (2013)\r\n12 SCC 406, this Court, while examining the\r\ndistinction between \'proof beyond reasonable doubt\'\r\nand \'suspicion\' has held as under: </i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\"13. Suspicion, however grave it may be, cannot\r\ntake the place of proof, and there is a large difference\r\nbetween something that “may be” proved, and\r\nsomething that “will be proved”. In a criminal trial,\r\nsuspicion no matter how strong, cannot and must not be\r\npermitted to take place of proof. This is for the reason\r\nthat the mental distance between “may be” and “must\r\nbe” is quite large, and divides vague conjectures from\r\nsure conclusions. In a criminal case, the court has a duty\r\nto ensure that mere conjectures or suspicion do not take\r\nthe place of legal proof. The large distance between\r\n“may be” true and “must be” true, must be covered by\r\nway of clear, cogent and unimpeachable evidence\r\nproduced by the prosecution, before an accused is\r\ncondemned as a convict, and the basic and golden rule\r\nmust be applied. In such cases, while keeping in mind\r\nthe distance between “may be” true and “must be” true,\r\nthe court must maintain the vital distance between mere\r\nconjectures and sure conclusions to be arrived at, on the\r\ntouchstone of dispassionate judicial scrutiny, based upon\r\na complete and comprehensive appreciation of all\r\nfeatures of the case, as well as the quality and credibility\r\nof the evidence brought on record. The court must\r\nensure, that miscarriage of justice is avoided, and if the\r\nfacts and circumstances of a case so demand, then the\r\nbenefit of doubt must be given to the accused, keeping\r\nin mind that a reasonable doubt is not an imaginary,\r\ntrivial or a merely probable doubt, but a fair doubt that is\r\nbased upon reason and common sense\".</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>19. It is also well-settled principle that in\r\ncriminal cases, if two views are possible on evidence\r\nadduced in the case, one binding to the guilt of the\r\naccused and the other is to his innocence, the view\r\nwhich is favourable to the accused, should be\r\nadopted. This principle has a special relevance in\r\ncases wherein the guilt of the accused is sought to\r\nbe established by circumstantial evidence [See Kali\r\nRam v. State of Himachal Pradesh (1973) 2 SCC\r\n808].</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. In the instant case, it is relevant to refer to the\r\nprovision of Section 300 of the IPC and so also 299 of IPC\r\nrelating to homicidal death not amounting to murder. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">There is distinction between the two provisions of law.\r\nSection 299 relates to causing death by doing an act with\r\nthe intention of causing death or with the intention of\r\ncausing bodily injury as is likely to cause death. The\r\naccused had compressed Ratnamma’s neck with means of\r\nhand. Though he was holding a sickle, but he did not use\r\nthat sickle to commit the murder. The same is seen from\r\nthe evidence of the prosecution. It indicates that instead\r\nof Section 302 IPC for which the accused was convicted,\r\nthe sentence must be reduced to Section 304 Part II of the\r\nIPC.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. Post mortem held by the Doctor who issued the\r\nreport at Exhibit P14 indicates the cause of death, which is\r\nhis opinion. Keeping in view the medical evidence also,\r\nthe appellant / accused cannot be convicted under Section\r\n302 of the IPC and the offence comes under the purview\r\nof Section 304 Part II IPC only.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n26. The learned counsel for the appellant submitted\r\nthat the accused is having aged parents and his mother is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">suffering from paralytic attack. Further, the appellant /\r\naccused is in judicial custody since 6 years 5 months and\r\n13 days. Taking into consideration the above mitigating\r\ncircumstances and also the fact that the accused is in\r\nincarceration for a period of 6 years 5 months and 13 days\r\nand moreover, on a perusal of the oral and documentary\r\nevidence, there was no such intention or premeditation to\r\ncommit the murder of the deceased and the incident\r\noccurred in view of certain provocation. In the\r\ncircumstances, the impugned judgment convicting the\r\naccused for the offences punishable under the provisions\r\nof Section 302 IPC has to be modified and converted into\r\none under Section 304 Part II IPC. Taking into\r\nconsideration the gravity of the offences and the overall\r\nfacts and circumstances of the case, it is appropriate to\r\nsentence the accused for the period that he has already\r\nundergone sentence, that is for a period of 6 years 5\r\nmonths and 13 days, in respect of all the offences. The\r\nperiod of imprisonment undergone by the appellant / </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">accused for all offences shall be termed as service of\r\nsentence, which would meet the ends of justice.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. Thus, the second point raised for consideration in\r\nthis appeal is answered in the negative holding that the\r\nSessions Judge is not justified in convicting the accused\r\nfor the offence punishable under Section 302 of the IPC.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The appeal preferred by the appellant under Section\r\n378 of the Cr.P.C. is hereby allowed in part. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6034f0ff6b15fedb336f515d61f514f6.jpeg', '93d1c2f1bdb8d2e453371de85aef383e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-04', 1, '', '', '2023-07-03 12:46:12', '2023-07-04 12:18:54');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3149, '2kZLXZsmtqwqqVeJ0eNGBgnaO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'In determining culpable homicide under Section 299 of IPC, mentality of the accused, nature of the act and its effect upon the victim have to be analysed. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sharda Ura Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 302 of 2019 decided on 16 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Somashekar and Justice Rajesh Rai K.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This appeal is directed against the judgment of\r\nconviction and order of sentence rendered by the trial\r\nCourt in S.C.No.1322/2014 dated 14.11.2018 convicting\r\nthe appellant – accused for the offence punishable under\r\nSection 302 of IPC, 1860. The accused was sentenced to\r\nundergo life imprisonment and to pay fine of Rs.5,000/-\r\nand default to pay the fine, to undergo rigorous\r\nimprisonment for two years. In this appeal seeking\r\nintervention for consideration of grounds as urged in this\r\nappeal and consequently, to set-aside the judgment of\r\nconviction and order of sentence rendered by the trial\r\nCourt and acquit the appellant – accused.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The factual matrix of the appeal are as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> It is transpired in the case of prosecution that on\r\n28.05.2014 at around 3.25 a.m. in the night hours, at the\r\nhouse of CW.2 i.e., first floor, No.2, 3rd Main, Raghavendra\r\nLayout, Yeshwantapura whereby accused picked up\r\nquarrel with Manoj Tirke in respect of the ancestral\r\nproperty standing in the name of their grandfather and\r\nmore so, they are the cousins and relatives and natives of\r\nSendhil Village, Ranchi District, Jharkhand State. The\r\naccused, Manoj Tirke, CW.6 to CW.13 came to Bengaluru,\r\nstarted painting work under C.W.17 and they were\r\nresiding in a rented house belonging to CW.2. On the\r\nfateful day, the accused had started quarrel with the\r\ndeceased in respect of the property which stands in the\r\nname of their grand father. The accused assaulted the\r\ndeceased with means of wooden reaper on the head\r\nportion. As a resultant of that assault made by the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">accused, injured – Manoj Tirke succumbed to injuries on\r\nthe same day as where the incident took at the scene of\r\ncrime on 28.05.2014 at around 3.25 a.m. in the night\r\nhours.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">16. In the instant case, the criminal law was set into\r\nmotion alleging that this accused assaulted the deceased\r\nwith means of MO.4 – wooden reaper and caused injuries\r\non the temporal region as per the PM report as a resultant\r\nhe last his breath. There was some quarrel took place in\r\nbetween accused and deceased for the simple reasons of\r\nproperty that was standing in the name of grand father.\r\nThe same could be seen in the material evidence of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">prosecution that too be the evidence of PW.4 being the\r\nbrother of deceased and also the contents of Ex.P1 –\r\ncomplaint. On these premises, learned counsel for the\r\nappellant seeking for intervention in this appeal by\r\nconsideration of the grounds urged therein, if not, the\r\naccused would be the sufferer and there shall be\r\nmiscarriage of justice to him. The whole occurrence took\r\nplace on a trivial matter resulting in a quarrel and the\r\naccused alleged to have assaulted on the temporal region\r\nwith means of MO.4 – wooden reaper. Therefore, it\r\ncannot be said that he intended to cause injury which\r\nsufficient (sic). At the most it can be said that by inflicting\r\nsuch injuries he had knowledge that he was likely to cause\r\nthe death. In which case the offence committed by him\r\nwould be culpable homicide not amounting to murder.\r\nTherefore, the conviction held against the accused for the\r\noffence under Section 302 of IPC even though no\r\ningredients has been constituted in a severe punishment in\r\na serious offence lugged against the accused. But it falls\r\nunder Section 304 Part II IPC</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. Further, in the case of Mahendra Singh vs.\r\nState of Rajasthan (1997) 3 Crimes 102, the Hon’ble\r\nSupreme Court has observed that law clearly expects the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Appellate Court to dispose of the appeal on merits not\r\nmerely by perusing the reasoning of the trial Court in the\r\njudgment, but by cross – checking the reasoning with the\r\nevidence on record with a view to satisfying itself that the\r\nreasoning and findings recorded by the trial Court are\r\nconsistent with the material on record. It means to say\r\nthat the material evidence which is secured by the IO\r\nduring the course of investigation and laying the charge\r\nsheet against the accused whether the material evidence\r\nlet in on the part of the prosecution are established with\r\nbeyond all reasonable doubt and it is the domain vested\r\nwith the trial Court to appreciate the evidence keeping in\r\nview Section 3 of the Indian Evidence Act, 1872 in respect\r\nof proved, disproved and not proved relating to the facts\r\neven on the averments made in the complaint made by\r\ncomplainant who is the gravamen of the incident and\r\nsimilarly, the accused who is the gravamen of the\r\naccusation. It is the settled position of law that reliance\r\ncan be based on the solitary statement of a witness if the\r\nCourt comes to the conclusion that the said statement is </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the true and correct version of the case of the prosecution.\r\nThis issue has been addressed by the Hon’ble Supreme\r\nCourt in the case of Raja v. State (1997) 2 Crimes 175\r\n(Del). Insofar as reliance of the Hon’ble Supreme Court\r\nin Lallu Manjhi v. State of Jharkhand (AIR 2003 SC\r\n854) it is held that the law of evidence does not require\r\nany particular number of witnesses to be examined in\r\nproof of a given fact. However, faced with the testimony\r\nof a single witness, the court may classify the oral\r\ntestimony into three categories, namely (i) wholly reliable,\r\n(ii) wholly unreliable, and (iii) neither wholly reliable nor\r\nwholly unreliable. In the first two categories there may be\r\nno difficulty in accepting or discarding the testimony of the\r\nsingle witness. The difficulty arises in the third category of\r\ncases. The court as to be circumspect and has to look for\r\ncorroboration in material particulars by reliable testimony,\r\ndirect or circumstantial, before acting upon testimony of a\r\nsingle witness.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. Further it is relevant to refer the judgment of\r\nHon’ble Supreme Court in Lalit Kumar Sharma v.\r\nSuperintendent and Remembrancer of Legal Affairs,\r\nGovernment of West Bengal, (1989) Cr.L.J. 2297\r\nwherein the Hon’ble Supreme Court has addressed the\r\nissues relating to the powers of the Appellate Court to\r\nreview evidence in appeal against acquittal is as extensive\r\nas its powers in appeal against convictions but Appellate\r\nCourt should be slow in interfering with the order of\r\nacquittal. But in the conviction that the appellate Court is\r\nrequired to even revisit the impugned judgment of\r\nconviction rendered by the trial Court and so also, reappreciation of the evidence and come to independent\r\nconclusion as to whether the evidence facilitated by the\r\nprosecution can be relied upon or not</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30. Whereas in Exception 4 – culpable homicide is\r\nnot murder if it is committed without premeditation in a\r\nsudden fight in the heat of passion upon a sudden quarrel\r\nand without the offender having taken undue advantage or\r\nacted in a cruel or unusual manner. This section defines <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the murder with reference to the definition of culpable\r\nhomicide given in and discussed under the last section.\r\nThis definition materially differs to certain extent. It is\r\nbased upon facts which is narrated in the complaint and\r\nalso material evidence which is secured by the IO during\r\nthe course of investigation. But the distinction between\r\nmurder and culpable homicide, the difference between an\r\nact of causing such injury as is likely to cause death and\r\nthat with the intention of causing such bodily injury as is\r\nsufficient in the ordinary course of nature to cause death.\r\nIt is true that the difference between an act of causing\r\nsuch bodily injury as is likely to cause death and the act\r\nwith the intention of causing such bodily injury as is\r\nsufficient in the ordinary course of nature to cause death is\r\none of degree, but the difference is there. Therefore, on\r\nclose reading of provision of Section 299 of IPC relating to\r\nculpable homicide not amounting to murder, it requires to\r\nbe established by the prosecution by facilitating the\r\nworthwhile evidence to secure the conviction. The\r\ndifference between clause (b) of Section 299 and clause </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(3) of Section 300 is one of degree of probability of death\r\nresulting from the intended bodily injury. To put it more\r\nbroadly, it is the degree of probability of death which\r\ndetermines whether a culpable homicide is of the grave,\r\nmedium or the lowest degree. These are all the things\r\nthat has to be looked into the evidence which is facilitated\r\nby the prosecution and it is the domain vested with the\r\ntrial Court under Section 3 of the Indian Evidence Act,\r\n1872 indicating proved, not proved and disproved by\r\nlooking into the entire evidence both examination in chief\r\nand also the cross-examination on the defence side.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. In the instant case, it cannot be said that the\r\noffence charged against accused come under the purview\r\nof Section 302 of IPC, unless there is strong, cogent,\r\ncorroborative and consistent evidence to secure\r\nconviction. The trial Court has arrived at a conclusion\r\nbased upon the evidence of PWs.1 to 6 and also evidence\r\nof PW.13, the investigating officer who laid the charge\r\nsheet against the accused by conducting mahazar in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">presence of panch witnesses that too be PWs.1 to 3 and\r\nalso inquest over the dead body. Therefore, it requires\r\ninterference by re-appreciating the evidence and revisiting\r\nof the impugned judgment of conviction and order of\r\nsentence, if not, certainly the accused would be the\r\nsufferer and also there shall be miscarriage of justice\r\nwould be extended to him. Therefore, considering the\r\nfactual scenario, in the background of legal principles set\r\nout above, the inevitable conclusion is that the case is not\r\ncovered under Section 302 of IPC. The ingredients\r\nnecessary to bring in application of Exception 4 to Section\r\n300 are present. Therefore, the conviction deserves to be\r\naltered to Section 304 Part I of IPC. The appellantaccused is said to be in incarceration for a period of 9\r\nyears 17 days and the same shall be termed as service of\r\nsentence and it would meet the ends of justice.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The appeal filed by the appellant – accused under\r\nSection 374(2) of Cr.P.C. is allowed in part. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'ad16f1559ea86ef49462b5154472c132.jpeg', '76ae3112e6ee190f797b154e96100645.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-04', 1, '', '', '2023-07-03 12:58:40', '2023-07-04 06:28:33'),
(3150, 'qjlgQPQrfVXAPSpNFO1SH6i7d', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Deputy Commissioner need not follow the procedure prescribed in Rule 5 of the Karnataka Excise Licences (General Conditions) Rules, 1967 while renewing the license. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K M Chandregowda Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 36563 of 2017 decided on 12 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Lokayukta Police after conducting the investigation\r\nsubmitted a charge sheet for the offence punishable under the\r\nprovisions of Prevention of Corruption Act and Wildlife\r\nProtection Act against the accused Nos.1 to 13.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioner - accused No.9 has been charge\r\nsheeted for the offences punishable Section 13(1)(d)(ii)((iii)\r\nread with Section 13(2) of the Prevention and Corruption Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 3. The summary of the charge sheet against the\r\npetitioner - accused No.9 is that, when he was discharging his\r\nduties as Incharge Deputy Commissioner of Kodagu District,\r\nMadikeri had granted CL-2 licence held by P V Chengappa\r\n(accused No.10) by transferring the licence from Private Bus\r\nStand to a reserved forest land in Kakethodage. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Rule 23 of the Karnataka Excise Licences (General\r\nConditions) Rules, 1967 deals with shifting of shops and\r\nspecifies that, subject to restrictions prescribed in Rule 5, the\r\nDeputy Commissioner may permit the licensee to shift the\r\nlocation of the shop from one place to another within the limits\r\nof the Gram Panchayat or within the Municipal Area or City\r\nMunicipal Corporation. For granting permission to shift, the\r\nDeputy Commissioner has to follow the procedure prescribed in\r\nRule 5 which deals with restrictions in respect of location of\r\nshop.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The accused No.10- was granted permission to shift\r\nhis licence from private Bus Stand Madikeri allegedly to a\r\nreserved forest land by order dated 14.6.2010 passed by the\r\naccused No.13.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. After permission was granted to shift the licence\r\nand after shifting, the accused No.10 filed an application for\r\nrenewal of CL2 licence for the excise period 2011 - 2012. The\r\npetitioner - accused No.9 by order dated 29.6.2011 renewed\r\nthe licence in favour of accused No.10 w.e.f 1.7.2011 to\r\n30.6.2012.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Rule 5-A of the Karnataka Excise (Sale of Indian\r\nand Foreign Liquor) Rules, 1968, deals with renewal of licence,\r\nwhich specifies that upon an application submitted by the\r\nlicensee along with licence fee prescribed, the Deputy\r\nCommissioner renews the licence. A reading of the said Rule\r\nindicates that there is no requirement for the Deputy\r\nCommissioner to follow the procedure prescribed in Rule 5 of\r\nthe Karnataka Excise Licences (General Conditions) Rules,\r\n1967. The only requirement is that the application for renewal\r\nmust be made along with the licence fee prescribed. The\r\npetitioner - accused No.9 has only renewed the CL2 licence in\r\nfavour of the accused No.10 and not granted permission to shift\r\nthe licence in violation of the Rules. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">12. In the absence of any material that the accused\r\nNo.9 has granted permission to shift the licence allegedly to a </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reserved forest land, the charge sheet laid against the accused\r\nNo.9 is without any substance and consequently, the\r\ncognizance taken by the learned Sessions Judge stands\r\nvitiated. Hence, the continuation of the criminal proceeding in\r\nthe absence of any materials to constitute the offences alleged\r\nagainst the petitioner will be an abuse of process of law.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\ni) Writ petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3435d6bee5139ac90fee2aa734bd27b2.jpeg', '030d01a02ed4bd04f886240dc0e8be51.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-04', 1, '', '', '2023-07-03 13:51:14', '2023-07-04 10:23:11'),
(3151, '05gTtM5vgphtbnFgBxsqPlVmY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Succession to property of a Sanyasi. Merely because a person wears cloth ordinarily worn by Sanyasi or by mere declaration, he cannot be termed that he has renounced the world. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shivaji Yallappa Rawool Vs Ballappa Yallappa Rawool.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 5060 of 2009 decided on 16 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Rajendra Badamikar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">3.<span style=\"white-space: pre;\">	</span>The suit property is a residential house situated at I Cross, Bharat Nagar, Shahapur, Belgaum, which is described in the scheduled in detail. The plaintiff has filed a suit seeking 1/2 share in the suit scheduled property by partition. According to the plaintiff, suit property is purchased by the plaintiff in the name of his elder brother one Ramappa as he was senior member of the family and the said Ramappa left house in the year 1967-68. Thereafter, his whereabouts is not known and they did not hear about him. He renounced the world and before leaving the house he had performed Homa and other ceremonies. The suit property standing in the name of said Ramappa and before filing of the suit, plaintiff has requested the defendant to effect partition but defendant did not hear to the request of the plaintiff. Therefore, he filed the suit for partition.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>It is evident from the records that the suit property is standing in the name of Ramappa. It is the contention of the plaintiff that he has purchased the suit property in the name of Ramappa, as he was elder brother out of his hard earning. At the same time, the defendant has also asserted the same contention. But however, it is evident that both the plaintiff as well as defendant have failed to produce any material document to show that the suit property is purchased by them in the name of Ramappa. It is also important to note here that the plaintiff has not produced genealogy of the family. There is no serious dispute of the fact that the suit scheduled property was standing in the name of Ramappa. Learned counsel for the appellant contended that the Genealogy is not shown and since three brothers had a sister by name Suman, who would be necessary party to the suit, but to substantiate this contention, the appellant has not produced any peace of document before this Court. Surprisingly, he has remained exparte and did not contest the suit before Trial Court. However, on merits the suit came to be dismissed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>The plaintiff in his plaint para No.3 asserted that in 1968 Ramappa left the place and till today his whereabouts is not known and in the eye of law he is presumed to be dead. In para No.2, it is contended that Ramappa was not having any faith in this world and was often he would express that he would renounce the word. But however, there is no pleading to the effect that Ramappa has renounced the world by becoming a Sanyasi. Absolutely no pleading is forthcoming, but in the evidence, the plaintiff has made out a case that Ramappa renounced the world and a Homa was performed. But there is no evidence as to when the Homa was performed and what are the religious ceremonies performed as per custom. Even there was no pleading to this effect in the plaint and without pleading the evidence in this regard cannot be accepted. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>In this context, the learned counsel for the appellant has placed reliance on a decision reported in MANU/UP/0141/1985 : AIR1985All104, in the case of Avadhesh Kumar vs. Sheo Shankar and Ors. The Allahabad High Court in the said decision relaying on the decision of the Hon’ble Apex Court has clearly held that in order to prove that a person has renounced the world by becoming a Sanyasi, it should be shown that he has actually relinquished and abandoned the wordily possessions and relinquished all the desires for them. It is further observed that the ceremonies performed must be strictly proved and merely by wearing a Cloth ordinarily worn by Sanyasi or by mere declaration, a person cannot be termed as that he has renounced the world. In the instant case, the plaint pleadings simply disclose that Ramappa has expressed his desire but there is no evidence or pleading to show that he did renounced the world by becoming any Sanyasi. This material pleading is missing. However, plaintiff has tried to lead evidence in this regard but that is without pleading. Further the witnesses who were examined in this regard are friends of the plaintiff but they are not the friends of Ramappa. Since, this evidence is without pleading, the same cannot be even looked into. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space: pre;\">	</span>The defendant/appellant herein tried to make out a case that he has purchased the suit property and he is possessing the original sale deed and he is paying tax all along which presupposes regarding his contribution. But the fact remains that the properties purchased in the name of Ramappa and who has contributed and what was corpus derived is not at all forthcoming either from the plaintiff or from the defendant. Hence, the contention of both plaintiff as well as defendant that they have purchased the property in the name of Ramappa cannot be accepted.   No doubt the defendant asserts that there is one more sister, but no evidence is placed before this Court to substantiate the said contention. However, admittedly the property is standing in the name of Ramappa. But no declaration regarding civil death of Ramappa is sought. Admittedly, property was purchased in the year 1959 itself by Ramappa. The First Appellate Court placing reliance under Section 108 of the Indian Evidence Act, has held that Ramappa is deemed to have been died. But the contention of the plaintiff is that Ramappa was alive till 1968 and thereafter he was not heard. Admittedly, the suit was filed on 15.01.1997. Under Section 107 of the Indian Evidence Act, the burden is on the plaintiff to prove that Ramappa is not alive within 30 years from the date of filing the suit. Admittedly, Ramappa was alive as it is asserted that in the year 1968 he left. Suit is filed in the year 1997 itself. Section 107 reads as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><i><font face=\"Calibri, sans-serif\">”107.Burden of proving death of person known to have been alive within thirty years,- When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.\"</font><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>Further under Section 108 of the Indian Evidence Act, gives presumption and cast negative burden on a person who asserts that to prove that he is alive, but under Section 108 comes into play when within 7 years from the date of assertion regarding his death, he was not heard or for 7 years those who would naturally have heard of him if he had been alive. But Section 108 of the Evidence Act, will come into effect only if the ingredients of under Section 107 of the Evidence Act, are complied with. Admittedly, no presumption can be withdrawn under Section 108 of the Evidence Act, regarding civil death and burden is on the plaintiff to prove that Ramappa\'s civil death. But the plaintiff himself has raised inconsistent stands. At one breath he claims that Ramappa is unheard after 1968. But at another breath, he tried to make out a case that he has renounced the world by becoming a Saint. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>As observed above, this fact was not pleaded and it is not established. If Ramappa is not heard, no complaint was lodged in this regard by any of the parties. No paper publication was also issued in this regard. Hence, merely on the assertion of the plaintiff by filing a suit, Ramappa cannot be presumed to be dead. In this context, the learned counsel for the appellant has placed reliance on a decision of this Court in R.S.A. No.5773/2013 dated 17.12.2020 wherein this Court has clearly observed that in the absence of prayer of declaration right to seek partition especially when declarative relief is not sought regarding civil death of a person is not permissible. Admittedly, in the instant case also there is no conclusive evidence placed to prove that Ramappa died a civil death. The plaintiff did not seek relief of declaration that Ramappa is not seen more than 7 years as contemplated under Section 108 of the Evidence Act, and therefore presumption must be drawn regarding his Civil death or his non-appearance for more than 7 years which amounts to civil death and then he could have sought for partition but without seeking a declarative relief he is directly seeking partition. Unless there is a declaration regarding civil death of Ramappa, the question of plaintiff claiming partition in the property of Ramappa does not arise at all. The First Appellate Court did not appreciate any of these aspects and in a mechanical way decreed the suit. Even the defendant tried to claim title and produced certain records regarding mutating his name but that will not give any right to him over the suit property. In the absence of declaration regarding civil death of Ramappa, the suit for partition itself is not maintainable and as such the First Appellate Court has seriously committed an error in reversing the judgment and decree of the Trial Court by decreeing the suit. Hence, the judgment and decree of the First Appellate Court is required to be set aside. The substantial question of law is accordingly answered in the negative and hence, I proceed to pass the following: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The appeal is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0aebf39dc17a7c69a6083c08723f7c5b.JPG', 'bad96c4dcdb0c9e69b02c01f1268df1b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-04', 1, '', '', '2023-07-03 15:11:16', '2023-07-04 03:19:08'),
(3152, 'FgAZxgoqdedCDQvCzIwWsQHfO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Daughters born prior to coming into force of the Hindu Succession Act, 1956 are also entitled for coparcenary property under the amended Section 6. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Maramma Thr LRS and others Vs Mallegowda.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R.S.A 236 of 2012 decided on 8 April 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. Brief facts of the case that would be relevant for the purpose of disposal of this appeal are, the plaintiff had filed O.S.No.17/2009 before the Trial Court seeking partition and separate possession of the suit schedule properties and she claimed 1/4th share in the suit schedule properties. It is the case of the plaintiff that plaintiff and defendants are the children of one Madegowda and their mother was Madamma. Madegowda and Madamma had another son by name Moogegowda who had expired unmarried prior to the filing of the suit. The suit schedule properties are their ancestral joint family properties and after the death of Madegowda and his wife Madamma, the khatha in respect of the suit schedule properties were got transferred in the name of defendant no.1. However, the plaintiff and other defendants continued to be in joint possession of the suit schedule properties along with defendant no.1. No partition was effected in the family after the death of Madegowda, and therefore, the plaintiff had requested the defendants to effect partition on 12.12.2008 and since the defendants kept on postponing the same, the plaintiff was constrained to file O.S.No.17/2009 seeking 1/4th share in the ancestral joint family properties left behind by their father.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. Defendants 2 & 3 who are the sisters of the plaintiff had filed written statement admitting the case of the plaintiff and they had claimed their share in the suit schedule properties and they also admitted that the suit schedule properties were the joint family properties.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. Defendant no.1 who is the brother of the plaintiff and defendants 2 & 3 had filed written statement contending that the plaintiff and the other defendants are not entitled for a share in the suit schedule properties. It is his case that the plaintiff and defendants 2 & 3 were married daughters of late Madegowda and they are residing separately with their respective husband. It was further contended by defendant no.1 that at the time of marriage of the plaintiff and defendants 2 & 3, huge amount was spent for the purpose of marriage and also for giving gold and other articles to them at the time of marriage. He had further contended that he had improved the suit schedule properties by investing huge amount and the suit schedule properties have been partitioned between himself and his children, and therefore, there is no scope for further partition.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. This Court, on 01.06.2012, had admitted this appeal to consider the following substantial question of law.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>\"Whether in the light of the explanation to sub-section (5) of Section 6 of the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act, 2005 and the decision of the Apex Court in the case of Ganduri Koteshwaramma Vs. Chakri Yanadi, the lower Appellate Court was justified in dismissing the suit for declaration, partition and separate possession of joint family properties?\"</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10. This Court heard the arguments of the counsels appearing on both sides on 07.12.2021, and thereafter, had framed the following additional substantial question of law. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Addl. substantial question of law:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>“Whether the First Appellate Court was justified in reversing the judgment and decree passed by the Trial Court in O.S.No.17/2009 and thereby dismissing the suit of the plaintiff on the ground that the plaintiff was born prior to 17.06.1956 and therefore, she was not entitled for partition and share in the plaint schedule property?”</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15. The undisputed facts of this case are, the suit schedule properties are the ancestral joint family properties which remained intact when Act of 2005 came into force. After the coming into force of the Act of 2005, the daughters have been given equal right and share in the ancestral properties along with the sons. The daughter is treated as a coparcener as a son by birth with the same rights in coparcenary property and liabilities. Under the amended Section 6 of the Hindu Succession Act, a right is given by birth to the daughters along with the sons. From a reading of Section 6, it is clear that the daughter becomes a coparcener in the same manner as a son. The effect of the Act of 2005 would be that a daughter is considered as a coparcener with effect from the date of amendment and she can claim a share equivalent to the son in the coparcenary property. To enable the daughter as a coparcener to claim a share in the coparcenary property, the coparcenary must exist on 09.09.2005.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19. The Hon’ble Supreme Court in the case of GANDURI KOTESHWARAMMA & ANOTHER VS CHAKIRI YANADI & ANOTHER – (2011)9 SCC 788, has held that the rights of the daughters in coparcenery property as per the amended Section 6 are not lost merely because a preliminary decree has been passed in a partition suit. So far as the partition suits are concerned, the partition becomes final only after passing a final decree. Where such situation arises, the preliminary decree will have to be amended taking into account the change in law.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20. The Hon’ble Supreme Court in the case of VINEETA SHARMA VS RAKESH SHARMA & OTHERS – AIR 2020 SC 3717, has observed at paragraph 129(v) as under:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>“(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognized mode of partition effected by a deed of partition duly registered under the provisions of the Registration At, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.”</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Therefore, the first substantial question of law is required to be answered in the negative.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>21. The First Appellate Court has set aside the judgment and decree passed by the Trial Court placing reliance on the judgment of this Court in the case of PUSHPALATHA.N.V. VS V.PADMA – ILR 2010 KAR 1484, wherein it was held as under:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>“The status of the coparcener is conferred on a daughter of a coparcener on and from the commencement of the Amended Act, 2005. The right to property is conferred from the date of birth. These rights are conferred under the Act and therefore necessarily follows that the daughter of coparcener who is born after the Act came into force alone will be entitled to a right in the coparcenary property and not a daughter who was born prior to 17.06.1956.”</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>22. The Hon’ble Supreme Court in Vineeta Sharma’s case supra, has held that the amended provisions of Section 6(1) provide that on and from the commencement of the Amendment Act, the daughter is conferred the right. Section 6(1)(a) makes daughter by birth a coparcener in her own right and in the same manner as the son. Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenery, which is by virtue of birth. Section 6(1)(b) confers the same rights in the coparcenery property as she would have had if she had been a son.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23. The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed with effect from 09.09.2005, the provisions are of retroactive application, they confer benefits based on the antecedent event, and the Mitakshara coparcenery law shall be deemed to include a reference to a daughter as a coparcener. At the same time, the legislature has provided savings by adding a proviso that any disposition or alienation, if there be any testamentary disposition of the property or partition which has taken place before 20.12.2004, the date on which the Bill was presented in the Rajya Sabha, shall not be invalidated. The daughter will step into the coparcenery as that of a son by taking birth before or after the Act. However, daughter born before can claim these rights only with effect from the date of the amendment i.e., 09.09.2005 with saving of past transactions as provided in the proviso to Section 6(1) read with Section 6(5).</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>24. The effect of the amendment is that a daughter is made coparcener with effect from the date of amendment and she can claim partition also, which is a necessary concomitant of the coparcenery. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. In case living coparcener dies after 09.09.2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted Section 6(3). The rights of other relatives remain unaffected as prevailed in the proviso to Section 6 as it stood before amendment.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>25. In the present case, it is seen that the coparcenary had remained intact as on 09.09.2005, and therefore, the daughters of Madegowda and Madamma are entitled for equal share in the suit schedule property along with defendant no.1 who is their son. The date of birth of the daughters is immaterial for claiming rights under the amended provisions of Section 6 of the Act. The judgment in Vineetha Sharma’s case supra would be squarely applicable to the facts of the case and in view of the said judgment, having regard to the fact that the coparcenery had remained intact as on 09.09.2005, the daughters of Madegowda are entitled for equal share in the suit schedule property along with defendant no.1. Therefore, the additional substantial question of law is answered in the negative.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>26. Accordingly, this second appeal is allowed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e30e270329a9d089ed3aca19976a8ad8.jpeg', '43b58735433fb65715097dd03435049e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-04', 1, '', '', '2023-07-03 16:08:25', '2023-07-04 08:03:05');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3153, 'AMR0LtIApJWg01vM5U9FRcMBf', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Constructive resjudicata under Order 2, Rule 2 of CPC does not apply when the later suit is based on fresh cause of action. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ramula Sannidhi Vs Jabarchand.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRP 295 of 2016 decided on 28 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>These two revision petitions are filed by the plaintiff and\r\nthe defendant, respectively, challenging the finding of the Trial\r\nCourt on point Nos.1 and 2, wherein held that the jural\r\nrelationship between the plaintiff and the defendant and also\r\ndismissing the suit as barred by Order 2, Rule 2 of CPC vide\r\norder dated 16.07.2016 passed in S.C.No.15167/2015 on the\r\nfile of XV Addl. Judge, Court of Small Causes, Mayo Hall Unit,\r\nBengaluru (SCCH-19).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The factual matrix of the case of the plaintiff before\r\nthe Trial Court is that the defendant is a tenant in respect of\r\nthe petition schedule premises on a monthly rent of Rs.300/-. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Earlier suit was filed for an ejectment, the same was numbered\r\nas S.C.No.15598/2011 and it was decreed. Aggrieved by the\r\nsaid order, the review petition was filed in Misc. Petition\r\nNo.15012/2013, which was allowed and the decree of\r\nejectment was set aside. Hence, the plaintiff has issued\r\ntermination of tenancy notice dated 22.01.2015 calling upon\r\nthe defendant to quit and deliver the vacant possession of the\r\nsuit schedule premises within the stipulated time. The\r\ndefendant gave an untenable reply. Hence, he was constrained\r\nto file a suit.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 4. After issuance of summons, the defendant has\r\nappeared and filed the written statement contending that the\r\nsuit itself is not maintainable. It is contended that he had\r\nconstructed the house and he was in peaceful possession of the\r\nsuit schedule property, and he was paying the amount towards\r\nexpenses of the Pooja of the temple and not paying any rent.\r\nIt is also contended that his father was in possession from 85\r\nyears back and his father was in possession by the then\r\nDharmakartha Late Gadi Cheluvaraya Shetty and he was</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">collecting Rs.2/- per month towards expenses of pooja in the\r\nSannidhi Temple. His father had enjoyed the same by\r\nconstructing a house and shop in the suit schedule property.\r\nAfter the death of his father, he has been enjoying the peaceful\r\npossession with his family as the legal heir and owner of the\r\nschedule property. There is no documentary proof with regard\r\nto the tenancy and he had renovated the building by spending\r\nmore than Rs.3 Lakhs and also spent an amount of Rs.5 Lakhs\r\nfor construction of the collapsed portion of the building. There\r\nwas an increase of amount of Rs.2/- to Rs.70/- and thereafter\r\nRs.300/- for pooja expenses but not as a rent and for cleaning,\r\npainting and other works every year he had spent Rs.25,000/-.\r\nIt is also his contention that the plaintiff is claiming to be a\r\ntrustee and he has not obtained any permission under Section\r\n92 of CPC, which is mandatory. It is also admitted the earlier\r\nproceedings and also allowing of the misc. petition. It is also\r\ncontended that in view of the Order 2, Rule 2 of CPC, the\r\nplaintiff has precluded for filing second suit on the same cause\r\nof action without leave of the Court and also in view of Section </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11 of CPC res judicata will apply to the present suit. Hence,\r\nprayed for dismissal of the suit.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Having heard the respective counsel and also on\r\nperusal of the material available on record, the points that\r\nwould arise for consideration of this Court are:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(1) Whether the Trial Court has committed an\r\nerror in answering point No.1 that there\r\nexists the jural relationship between the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">plaintiff and the defendant and whether it\r\nrequires interference by allowing CRP\r\nNo.19/2017?</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n(2) Whether the Trial Court has committed an\r\nerror in dismissing the suit invoking Order\r\n2, Rule 2 of CPC and whether it requires\r\ninterference by allowing CRP No.295/2016?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> (3) What order?</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.1:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. The Trial Court had taken note of the material\r\navailable on record in paragraph No.15, discussed the\r\ncontentions of the plaintiff and also the defendant and having\r\ntaken note of the sworn affidavit filed by the defendant came\r\nto the conclusion that he is the tenant of the suit schedule\r\npremises, wherein, clearly admitted that his father has taken <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the suit schedule premises on lease basis and after the death\r\nof his father he has been paying rent to the plaintiff. Even he\r\ncategorically admitted that during the year 2002, he had\r\nagreed to pay rent at the rate of Rs.1,700/- per month.\r\nHaving taken note of these materials, the Trial Court came to\r\nthe conclusion that the defense cannot be accepted. So also, in\r\nparagraph No.17 also discussed the evidence of the defendant\r\nand he claims that one Muniyamma wife of Appannavar has\r\nexecuted the Trust Deed in favour of her daughter by name\r\nAkkayya dated 29.02.1928 and also taken note of the other\r\nmaterial and discussed both the contentions and also earlier\r\nnotice, he has categorically admitted that for the past 10 years,\r\nthe plaintiff has been demanding for payment of higher rents\r\nand thereby he had been refusing to receive the rents as and\r\nwhen tendered and also he categorically admits that he has\r\ndeposited the rents in the Court in the earlier proceedings and\r\nalso taken note of the deposit made in S.C.No.15598/2011,\r\nrightly came to the conclusion that there exists jural\r\nrelationship between the parties. I do not find any error\r\ncommitted by the Trial Court in answering point No.1 as </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">affirmative that there exists the jural relationship between the\r\nparties. Hence, I answer point No.1 as ‘negative’. The said\r\nfinding does not require any interference by allowing CRP\r\nNo.19/2017 filed by the defendant.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.2:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. This Court would like to extract Order 2, Rule 2 of\r\nCPC, which reads as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“(2) Relinquishment of part of claim.-Where a\r\nplaintiff omits to sue in respect of, or intentionally\r\nrelinquishes, any portion of his claim, he shall not\r\nafterwards sue in respect of the portion so omitted or\r\nrelinquished.”\r\n</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. Having read the proviso of Order 2, Rule 2 of CPC, it\r\nis very clear that if the plaintiff omits to sue in respect of any\r\nclaim i.e., intentionally relinquishes, any portion of his claim, he\r\nshall not afterwards sue in respect of the portion so omitted or\r\nrelinquished. But the Trial Court failed to take note of the very\r\nproviso and misapplied Order 2, Rule 2 of CPC in dismissing the\r\nsuit. Admittedly, the earlier suit is also filed for an ejectment.\r\nThough the suit was registered as O.S., subsequently, the same\r\nwas transferred to Small Causes Court and the same was renumbered and the relief is also sought for quit and vacate the\r\npremises and the same is based on the cause of action arisen\r\non account of issuance of termination of tenancy. When the\r\nTrial Court came to the conclusion by allowing the misc. petition\r\nthat no authority was given to initiate the proceedings and on\r\ntechnicality set aside the earlier order. A fresh legal notice was\r\nissued in terms of Ex.P2. The reply was also given in terms of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Ex.P5. When the plaintiff has issued the notice calling upon him\r\nto quit, vacate and deliver the vacant possession of the property\r\nby causing legal notice dated 22.01.2015 as earlier decree was\r\nset aside only on the ground of technicality that no\r\nauthorization in terms of Ex.P4 to initiate the case, which was\r\nmarked in the earlier proceedings. New cause of action was\r\narisen to the plaintiff by causing legal notice dated 22.01.2015\r\nand the present suit is also filed based on the fresh cause of\r\naction as contended by the learned counsel for the plaintiff and\r\nproceeded to seek the relief of quit and vacate, the same has\r\nnot been considered by the Trial Court. The Trial Court has\r\nmisapplied Order 2, Rule 2 of CPC and not stated anything in\r\nthe order how Order 2, Rule 2 of CPC is applicable and nothing\r\nwas waived while filing the earlier suit.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16. The discussion made in the order while answering\r\npoint No.2 is that not sought any leave of the Court to file a suit\r\non the same cause of action and no need to seek any leave of\r\nthe Court and the earlier suit was not withdrawn and an order\r\nhas been set aside by coming to the conclusion that Ex.P4 does </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not confer any authority to file the case. The Trial Court also\r\nerroneously applied the principle reported in Coffee Board’s\r\ncase (supra), which was relied upon by the learned counsel for\r\nthe defendant before the Trial Court and the same is relied\r\nbefore this Court also. No doubt, in the said Judgment, the\r\nApex Court held that whether the suit is barred by Order 2, Rule\r\n2 of CPC, must examine the cause of action pleaded by the\r\nplaintiff in his plaint filed in the relevant suits and the plaint has\r\nto be read as a whole and the cause of action has to be\r\nidentified. But the Trial Court has committed an error in coming\r\nto the conclusion that the plaintiff has not approached this Court\r\nby filing any revision after dismissal of the earlier suit and there\r\nwas no need to approach this Court also since the judgment and\r\ndecree was set aside only on the ground that there was no\r\nauthorization and the authorization was given only for the bank\r\ntransaction and not for initiation of case. Hence, issued fresh\r\nnotice and based on the fresh cause of action, the suit was filed.\r\nThe Trial Court has committed an error in coming to the\r\nconclusion that Order 2, Rule 2 of CPC is applicable and nothing\r\non record to show that the plaintiff has claimed only a portion of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the relief and relinquished his right and there is no any waiver\r\nof the claim by the plaintiff and the suit is filed based on fresh\r\ncause of action. The very approach of the Trial Court is\r\nerroneous and also committed an error in coming to the\r\nconclusion that the plaintiff has not produced any lease\r\nagreement and also not mentioned, whether it is written or oral\r\nagreement. When the Court itself has given the finding that\r\nthere exists jural relationship between the parties, committed\r\nan error in dismissing the suit by giving the said reasons. The\r\nother observation is that the plaintiff has not produced any\r\nlease agreement and the said finding is contrary to answering\r\npoint No.1 and while applying Order 2, Rule 2 of CPC, the Trial\r\nCourt misapplied Order 2, Rule 2 of CPC. Hence, it requires\r\ninterference. Hence, I answer point No.2 as ‘affirmative’. The\r\nfinding of the Trial Court is set aside on point No.2.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. Now, the question before this Court is with regard to\r\nwhether the plaintiff is entitled for the relief as sought. The Trial\r\nCourt has committed an error in answering point No.3, in\r\ncoming to the conclusion that the suit is barred under Order 2, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rule 2 of CPC in spite of dispute with regard to the jural\r\nrelationship between the parties, as this Court and the Trial\r\nCourt clearly held that there exists jural relationship. It is\r\nimportant to note that while seeking the relief of quit and\r\nvacate the premises, notice was issued in terms of Ex.P2 and\r\nthe same is also served and an untenable reply was given in\r\nterms of Ex.P5.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. Having perused both oral and documentary\r\nevidence available on record and also considering the pleadings\r\nof the plaintiff in the suit and also based on the fresh cause of\r\naction, when the suit is filed and the prayer is also with regard\r\nto quit and deliver the vacant possession of the property and\r\ndirecting the defendant for a Decree for future mesne profits\r\nby awarding damages at the rate of Rs.10,000/- per month.\r\nAdmittedly, the rate of rent is paid is Rs.300/- per month but in\r\nthe earlier proceedings itself, the defendant had admitted that\r\nthe rate of rent was enhanced and he has agreed to pay the\r\nrate of rent of Rs.1,700/- per month and the same has been\r\ndiscussed in paragraph No.16 and he had admitted that during <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the year 2002, he had agreed to pay the rent Rs.1,700/- per\r\nmonth and the same is found in the evidence of the defendant\r\nin S.C.No.15598/2011. When there is an admission that in\r\n2002, he had agreed to pay the rent of Rs.1,700/- per month as\r\nenhancement and the suit is filed in the year 2015, it is\r\nappropriate to direct the defendant to pay damages of\r\nRs.5,000/- per month as he continued in an authorized\r\noccupation after the termination of tenancy and from the date\r\nof termination of tenancy he is liable to pay damages at the rate\r\nof Rs.5,000/- per month.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.3:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) CRP No.295/2016, filed by the plaintiff, is\r\nhereby allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0d508ca2a03091d00bc1c113e865a604.JPG', '2694eeb6a59acd9fd596941ace3b3dc5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-05', 1, '', '', '2023-07-04 12:58:56', '2023-07-05 03:08:43'),
(3154, 'wLXsfRg5PsyDYyeZPHR1icDGx', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When specific averments are made in the plaint, the defence is immaterial while considering application under Order 7, Rule 11. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pramila and others Vs Nirmala and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 397 of 2019 decided on 27 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The plaintiff has filed the suit for the relief of\r\npartition before the Trial Court to grant judgment and decree\r\nfor partition and separate possession of the plaintiff 1/3rd share\r\neach in all the properties i.e., item Nos.1 to 3 and also sought\r\nfor mesne profits under Order 20, Rule 18 and further sought\r\nto declare that gift deed dated 28.02.2002 is not binding on the\r\nplaintiff.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. The plaintiff has filed the suit for the relief of\r\npartition before the Trial Court to grant judgment and decree\r\nfor partition and separate possession of the plaintiff 1/3rd share\r\neach in all the properties i.e., item Nos.1 to 3 and also sought\r\nfor mesne profits under Order 20, Rule 18 and further sought\r\nto declare that gift deed dated 28.02.2002 is not binding on the\r\nplaintiff. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contending that the plaintiff has suppressed the material facts\r\nand she has absolutely no right, title and interest over the suit\r\nschedule properties and she prayed for decree of partition and\r\nseparate possession and declare that gift deed dated\r\n28.02.2002 is not binding on her. It is contended that, as per\r\nthe plaint averments, the schedule properties are self-acquired\r\nproperties of deceased K. Ashwathama but, none of the\r\nproperties are available for partition. It is also contended that\r\ndeceased K. Ashwathama had alienated all the properties\r\nstanding in his name. Hence, the plaintiff is not entitled for any\r\nrelief and there is no cause of action to file the suit. It is\r\ncontended that item No.3 of the suit schedule properties is selfacquired property of defendant No.2. He has purchased the\r\nsame under registered sale deed dated 03.01.1991 and hence,\r\nthe suit of the plaintiff is not maintainable. It is also contended\r\nthat on 29.01.2007 itself, he had sold the item No.2 property in\r\nfavour of defendant Nos.5 and 6 and item Nos.1 and 2 are self\r\nacquired properties of deceased K. Ashwathama and during his\r\nlife time, he sold the said properties and he gifted the item\r\nNo.1 of the property in favour of his wife i.e., defendant No.1</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. The plaintiff has filed the objection statement\r\ncontending that, in order to avoid definite share in the suit\r\nschedule properties, the defendant Nos.1 and 2 have colluded\r\nwith each other and created several documents. Even though\r\nthe defendants are aware of the fact that the plaintiff is the\r\ndaughter and her mother is the only legally wedded wife of\r\ndeceased K. Ashwathama, they illegally withdrawn the deposit\r\namount in the name of deceased K. Ashwathama. The plaintiff\r\nis entitled for her legitimate share in all the movable and\r\nimmovable properties and deposits belonging to the deceased\r\nK. Ashwathama and the defendants have denied the\r\nrelationship of plaintiff with deceased K. Ashwathama. It is\r\nalso contended that, in respect of item No.2 of the suit\r\nschedule properties, the deceased K. Ashwathama and his two\r\nsons had sold the said property in favour of defendant Nos.5\r\nand 6 and the deceased K. Ashwathama had no exclusive right\r\nto deal with the share of plaintiff in the suit schedule\r\nproperties. Hence, the application requires to be dismissed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. Having heard the learned counsel for the petitioners\r\nand also on perusal of the material on record, the points that\r\nwould arise for consideration of this Court are:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n(i) Whether the Trial Court has committed an\r\nerror in rejecting the application filed under\r\nOrder 7, Rule 11 read with Section 151 of\r\nC.P.C.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n (ii) What order?<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(i)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. While exercising the powers under Section Order 7,\r\nRule 11 read with Section 151 of C.P.C., the Court has to look\r\ninto only the averments of the plaint and not the defence and\r\nthe very contention of the defendant No.2 is that item No.3 is\r\npurchased in the name of the defendant No.2. Having\r\nconsidered the averments made in the plaint in Para No.2, the\r\nplaintiff has narrated with regard to the relationship between\r\nsaid K. Ashwathama contending that he is her father and\r\nmother is Smt. Kanta and their marriage was solemnized in the\r\nyear 1954 and the defendants are disputing the said fact. In\r\nPara No.5 of the plaint, it is stated with regard to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">relationship between deceased K. Ashwathama and Kanta and\r\nplaintiff was born and they resided together. In Para No.6, it is\r\npleaded with regard to the fact that said K. Ashwathama had\r\npurchased the property i.e., item No.1 of the property and in\r\nrespect of item No.2, it is stated that he had purchased the said\r\nproperty and has also produced the document of sale deed i.e.,\r\ndocument Nos.5 and 6. Hence, on perusal of these averments,\r\nit is clear that those two properties are purchased by deceased\r\nK. Ashwathama and no averment in the plaint with regard to\r\nitem No.3 of the suit schedule properties but, item No.3 is\r\nincluded in the plaint. However, it is pleaded in the plaint the\r\ngift deed is not binding on her.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. No doubt, the plaintiff has sought for the relief to\r\ndeclare that the gift deed is not binding in her, when specific\r\naverment is made in the plaint with regard to creation of the\r\ndocument and also when she has pleaded that deceased K.\r\nAshwathama was not found and a Habeas Corpus Petition was</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>filed before this Court and then she came to know that he is no\r\nmore and specific allegation is made that defendant Nos.1 to 4\r\nhave deliberately not informed the death of deceased K.\r\nAshwathama to the plaintiff and indulged in creation of\r\ndocument and when such averment is made and also with\r\nregard to cause of action, in Para No.18 of the plaint, it is\r\nstated that she has issued legal notice claiming share and also\r\nwhen the defendants have given evasive reply to the notice and\r\ndenied to give the plaintiff’s legitimate share in all the suit\r\nschedule properties, she has filed the suit.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n 18. When such being the material on record, the Court\r\nhas to look into the averments of the plaint and whether the\r\nplaintiff has got right or not and whether those documents\r\ncame into existence as alleged in Para No.9 of the suit has to\r\nbe adjudicated by the Trial Court. With regard to the\r\nrelationship between the parties, the same is a disputed\r\nquestion of fact and the same has to be considered by the Trial\r\nCourt. The Trial Court, while considering the grounds urged in\r\nthe application, taken note of the disputed question of facts\r\nbetween the parties with regard to the relationship between the\r\nplaintiff with the deceased K. Ashwathama. The Trial Court <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">also, in Para No.11 in detail discussed the same and comes to\r\nthe conclusion that matter requires to be tried and it requires\r\nfull-fledged trial. When specific allegation is made in the plaint,\r\nthe Court has to look into the averments of the plaint and the\r\ndefence is immaterial while considering the application filed\r\nunder Order 7, Rule 11 read with Section 151 of C.P.C.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 19. The learned counsel for the petitioners also relied\r\nupon several judgmenta in support of his argument. However,\r\nin the judgment of this Court reported in ILR 2019 KAR 4739,\r\nit is held with regard to clear drafting of plaint and suppression\r\nof material facts is a ground for rejection of plaint and plaintiff\r\nis duty bound in law to disclose the material facts in terms of\r\nOrder 6, Rule 2, omission of a single material fact leads to an\r\nincomplete cause of action and in such a case, plaint becomes\r\nbad. In the case on hand, nothing is suppressed with regard to\r\nthe claim made by the plaintiff and she has specifically stated\r\nthat the suit schedule properties are purchased by her father\r\ndecased K. Ashwathama and it is the claim of the defendants\r\nthat both the properties are disposed of. When the plaintiff has\r\nmade the allegation in the plaint itself with regard to the\r\ncreation of the documents, the judgment is not applicable to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the facts of the case on hand. No doubt, the counsel also relied\r\nupon the judgment of the Apex Court in 2023 SCC ONLINE\r\nSC 521 with regard to clever drafting of the plaint to avoid\r\nlimitation and got filed the suit, the Court has to look into the\r\nfacts and circumstances of each case.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 20. Further, in the judgment reported in (2020) 7 SCC\r\n366, the Apex Court has discussed with regard to Order 7, Rule\r\n14 of C.P.C. as well as Order 7, Rule 11 of C.P.C., the Court has\r\nto look into the documents available on record. In the case on\r\nhand, it is the specific pleading of the plaintiff that the\r\nproperties are is purchased by her father and the same has\r\nbeen stated in the plaint and document is also produced.\r\nHowever, she has contended in the plaint that defendant Nos.1\r\nto 4 have indulged in creation of documents and also contended\r\nthat, even the death of deceased K. Ashwathama was not\r\ninformed to her and only on filing the Habeas Corpus petition,\r\nshe came to know that her father is no more. When such\r\nallegation is made in the plaint, the same requires to be\r\nadjudicated by the Trial Court. Hence, I do not find any error\r\ncommitted by the Trial Court in dismissing the application filed </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under Order 7, Rule 11 read with Section 151 of C.P.C.\r\nAccordingly, I answer point No.(i) as ‘negative’</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(ii)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> (i) The revision petition is dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2f5a09de09a767a29187151a5af896d3.JPG', 'e5f2a1307498a742a012e3a307be4248.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-05', 1, '', '', '2023-07-04 13:07:36', '2023-07-05 10:34:46');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3155, 'FcKDSgrMZQsfwvlOHocNB9Ksy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Special statutes prevail over the Limitation Act. Appellate Authority has no power to entertain an appeal beyond the period of one month as stipulated under Section 107(4) of the Karnataka Goods and Services Tax Act, 2017. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Bismilla Earth Movers Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 103626 of 2023 decided on 13 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. Facts leading to filing of this writ petition as\r\nrevealed from the records narrated briefly are; the\r\npetitioner who is a proprietary concern, registered under\r\nthe Karnataka Goods and Services Tax Act, 2017\r\n(hereinafter referred to as ‘the KGST Act of 2017’) and\r\nunder the Central Goods and Services Tax Act, 2017\r\n(hereinafter referred to as ‘the CGST Act of 2017’), is\r\nengaged in the business of excavation of earth at mining </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">head and supplies trippers to iron factories situated in and\r\naround Sandur, Hospet and Bellary of Karnataka. The\r\npetitioner was issued with a Show Cause Notice under\r\nSection 65 of the KGST Act of 2017 by respondent No.1\r\nand in response to the said notice, petitioner had produced\r\nbooks of accounts/records and documents to the\r\nrespondent No.3 Office in connection with the audit\r\nproceedings. Respondent No.3 after verifying all the\r\nrecords and books of accounts of the petitioner, had\r\npassed an order under Sections 73(9), 50(1) and 50(2) of\r\nthe KGST Act of 2017 and Section 5(1) of the Integrated\r\nGoods and Services Tax Act, 2017. The said order was\r\npassed on 27.12.2022. Assailing the said order, the\r\npetitioner had filed an appeal under Section 107 of the\r\nKGST Act of 2017 before the 2nd respondent-Appellate\r\nAuthority. The said appeal was filed on 25.05.2023. Since\r\nthe said appeal was filed after a delay of 59 days, the 2nd\r\nrespondent had dismissed the appeal at the stage of\r\nadmission, on the ground that he has no power to condone </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the delay of 59 days. It is under these circumstances, the\r\npetitioner is before this Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. From a reading of the aforesaid provisions of\r\nlaw, it is clear that, the Appellate Authority has no power\r\nto entertain an appeal beyond the period of one month as\r\nstipulated under Section 107(4) of the KGST Act of 2017.\r\nAny person aggrieved by an order passed under the Act, is\r\nrequired to prefer an appeal before the Appellate Authority\r\nwithin a period of 3 months from the date on which the\r\norder is communicated to him. In exercise of the powers <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under Section 107(4) of the Act, delay of one month over\r\nand above the period of limitation prescribed under\r\nSection 107(1) of the Act, can be condoned by the\r\nAppellate Authority and not the delay which is beyond the\r\nperiod prescribed under Section 107(4) of the Act. The\r\nKGST Act of 2017 is a special law and a complete code by\r\nitself and from the reading of relevant provisions of the\r\nAct, it is clear that the provisions of the Limitation Act are\r\nexcluded.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. A plain reading of Section 29(2), would make it\r\nresultantly clear that the limitation period prescribed by\r\nthe special law will prevail over limitation period prescribed\r\nunder the Schedule to the Limitation Act. It further states\r\nthat the provisions contained in Sections 4 to 24 of the\r\nLimitation Act, will apply for determining the period of\r\nlimitation only insofar as and to the extent to which they\r\nare not expressly excluded by such special or local law.\r\nUnder the Limitation Act, there is no provision which deals\r\nwith the subject matter of the appeals under the KGST Act\r\nof 2017 or CGST Act of 2017, it is only the said provision\r\nwould cover the field, and the provisions of the Limitation\r\nAct cannot be borrowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. In the case of Singh Enterprises Vs.\r\nCommissioner of Central Excise, Jamshedpur\r\nreported in (2008) 12 VST 542, Section 35 of the\r\nCentral Excise Act has fallen for consideration before the\r\nHon’ble Supreme Court. Section 35 of the Central Excise\r\nAct, reads as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“35. Appeals To Commissioner (Appeals.)\r\n(1) Any person aggrieved by any decision or order\r\npassed under this Act by a Central Excise Officer,\r\nlower in rank than a Commissioner of Central\r\nExcise, may appeal to the Commissioner of Central\r\nExcise (Appeals) (hereinafter in this Chapter\r\nreferred to as the Commissioner (Appeals)] within\r\nsixty days from the date of the communication to\r\nhim of such decision or order:\r\nProvided that the Commissioner (Appeals)\r\nmay, if he is satisfied that the appellant was\r\nprevented by sufficient cause from presenting the\r\nappeal within the aforesaid period of sixty days,\r\nallow it to be presented within a further period of\r\nthirty days.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>(2) Every appeal under this section shall be in the\r\nprescribed form and shall be verified in the\r\nprescribed manner.”</i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. In the said case, the Hon’ble Supreme Court\r\nhas observed that the Commissioner of Central Excise\r\n(Appeals) as also the Tribunal being creatures of Statute\r\nare vested with jurisdiction to condone the delay beyond\r\nthe permissible period provided under the Statute. The\r\nperiod upto which the prayer for condonation can be\r\naccepted is statutorily provided. The first proviso to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 35 makes the position clear that the appeal has to\r\nbe preferred within three months from the date of\r\ncommunication to him of the decision or order. However, if\r\nthe Commissioner is satisfied that the appellant was\r\nprevented by sufficient cause from presenting the appeal\r\nwithin the aforesaid period of 60 days, he can allow it to\r\nbe presented within a further period of 30 days. In other\r\nwords, this clearly shows that the appeal has to be filed\r\nwithin 60 days but in terms of the proviso further 30 days\r\ntime can be granted by the appellate authority to entertain\r\nthe appeal. The proviso to subsection (1) of Section 35\r\nmakes the position crystal clear that the appellate\r\nauthority has no power to allow the appeal to be\r\npresented beyond the period of 30 days. The language\r\nused makes the position clear that the legislature intended\r\nthe appellate authority to entertain the appeal by\r\ncondoning delay only upto 30 days after the expiry of 60\r\ndays which is the normal period for preferring appeal.\r\nTherefore, there is complete exclusion of Section 5 of the\r\nLimitation Act.\"</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. In the case of Assistant Commissioner (CT)\r\nLTU, Kakinada Vs.Glaxo Smith Kline Consumer\r\nHealth Care Limited, reported in AIR 2020 SC 2819,\r\nSection 31 of the Andhra Pradesh Value Added Tax Act,\r\n2005 (for short, ‘AP VAT Act’) has fallen for consideration.\r\nSection 31 of the AP VAT Act reads as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“Section 31. (1) Any VAT dealer or TOT dealer or\r\nany another dealer objecting to any order passed or\r\nproceeding recorded by any authority under the\r\nprovisions of the Act other than an order passed or\r\nproceeding recorded by an Additional Commissioner\r\nor Joint Commissioner or Deputy Commissioner,\r\nmay within thirty days from the date on which the\r\norder or proceeding was served on him, appeal to\r\nsuch authority as may be prescribed:\r\nProvided that the appellate authority may within a\r\nfurther period of thirty days admit the appeal\r\npreferred after a period of thirty days if he is\r\nsatisfied that the VAT dealer or TOT dealer or any\r\nother dealer had sufficient cause for not preferring\r\nthe appeal within that period:</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>Provided further that an appeal so preferred shall\r\nnot be admitted by the appellate authority\r\nconcerned unless the dealer produces the proof of\r\npayment of tax, penalty, interest or any other\r\namount admitted to be due, or of such, installments\r\nas have been granted, and the proof of payment of\r\ntwelve and half percent of the difference of the tax,\r\npenalty, interest or any other amount, assessed by\r\nthe authority prescribed and the tax, penalty,\r\ninterest or any other amount admitted by the\r\nappellant, for the relevant tax period, in respect of\r\nwhich the appeal is preferred.”</i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. In the said case, the Hon’ble Supreme Court\r\nhas observed that, it is evident that the statutory appeal\r\nwas required to be filed within 30 days from the date on\r\nwhich the order or proceeding was served on the\r\nassessee. If the appeal is filed after expiry of prescribed\r\nperiod, the appellate authority is empowered to condone\r\nthe delay in filing the appeal, only if it is filed within\r\nfurther period of not exceeding 30 days and sufficient\r\ncause for not preferring the appeal within the prescribed\r\ntime is made out. The Hon’ble Supreme Court further\r\nobserved that the appellate authority is not empowered to\r\ncondone delay beyond the aggregate period of 60 days as\r\nprovided under Section 31 of the AP VAT Act from the date\r\nof service of order passed against the assessee. The\r\nHon’ble Supreme Court observed that the AP VAT Act, is a\r\nspecial legislation within the meaning of Section 29 of the\r\nLimitation Act and, therefore the prescription with regard\r\nto the limitation has binding effect and the same has to be\r\nfollowed regard being had to its mandatory nature. It was\r\nalso observed that there is a statutory command by the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">legislation as regards limitation and there is postulate that\r\ndelay can be condoned for further period not exceeding 60\r\ndays. It is in this background, the Hon’ble Supreme Court\r\nhad observed that if the petitioner chooses to approach\r\nthe High Court after the expiry of limitation period\r\nprovided under Section 31 of the AP VAT Act, the High\r\nCourt cannot disregard the statutory period for redressal\r\nof the grievance and entertain the writ petition.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. The Co-ordinate Bench of this Court in WP\r\nNo.47044/2013 disposed of on 06.02.2014 in the case\r\nof Mr.S.Naseer Pasha S/o.Late Mr.Chota Sab Vs.The\r\nDeputy Commissioner of Transports, wherein it was\r\nconsidering the similar provision under the Karnataka\r\nMotor Vehicles Taxation Act, 1957 at paragraph 25 has\r\nobserved as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“25. The proposition has to be considered only with\r\nreference to Section 29 of the Limitation Act.\r\nSection 29 clearly mandates ‘Where any special or\r\nlocal law prescribes for any suit, apealor application\r\na period of lijitation oddiferent from the period\r\nprescribed by the Schedule, the provisions of\r\nSection 3 shall apply as if such period were the\r\nperiod prescribed by the Schedule and for the\r\nprovision of determining any period of limitation\r\nprescribed for any suit, appeal r application by any <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">special or local law, the provisions contained in\r\nSections 4 to 24(inclusive) shall apply only insofar\r\nas, and to the extent to which they are not\r\nexpressly excluded by such special or local law.’\r\nThus it could be seen in the instant case, though\r\nSection 5 of the Limitation Act gives discretion to\r\nthe appellate or revisional authority to condone the\r\ndelay beyond the period prescribed in filing such\r\nappeal or revision, if sufficient cause is shown, Rule\r\n31 and the amended provision of Rule 31 does not\r\ngrant any discretion to the court and fixes a\r\nmaximum of 30 + 30 days. In view of Section 29 of\r\nthe Limitation Act, the period of limitation\r\nprescribed by the special law, i.e. Section 15 of the\r\nAct and Rule 31 and the amended provision of Rule\r\n31 prevails and Section 5 gets excluded.”</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. From the aforesaid analysis of the matter, it is\r\nabundantly clear that respondent No.2 has no discretion to\r\nentertain the appeal which is filed beyond the period of\r\none month from the period of limitation prescribed under\r\nSection 107(1) of the KGST Act of 2017. In the resultant\r\nposition, any appeal which is preferred beyond the period\r\nindicated under Sections 107(1) and 107(4) of the KGST\r\nAct of 2017, cannot be entertained by the Appellate <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Authority. The legal competence of the Appellate Authority\r\nis only to condone the delay of one month in addition to\r\nthe period of limitation under Section 107(1) of the KGST\r\nAct and no more.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>18. In the present case, admittedly there is a delay\r\nof 59 days over and above the period of one month which\r\nthe Appellate Authority could have condoned in exercise of\r\nits power under Section 107(4) of the KGST Act of 2017.\r\nUnder these circumstances, no exception can be taken\r\nagainst the order impugned in this writ petition passed by\r\nthe 2nd respondent-Appellate Authority. Therefore, the writ\r\npetition challenging the said order cannot be entertained\r\nand accordingly the same is dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2043355c4106723db92782e85f51b736.jpeg', '2cad4a5f7ebfd189a9fec972b16a2656.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-05', 1, '', '', '2023-07-04 13:32:28', '2023-07-05 06:31:09'),
(3156, '2d9QV56rvbVFtXGuXXjRiFZ4G', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When fair trial would require further investigation, the court must interfere and in the interest of justice choose a different officer to make a fresh/further investigation. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>XX Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 1351 of 2023 decided on 28 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court calling in question order\r\ndated 07-01-2023 passed by the Additional City Civil and Sessions\r\nJudge, FTSC-I, Bengaluru in Special C.C. No.2261 of 2022 rejecting\r\nthe application filed by the petitioner under Section 173(8) of the\r\nCrPC and seeks a direction for conduct of further investigation of\r\nthe crime.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The charge sheet was laid before the concerned Court on\r\n22-10-2022 and the concerned Court takes cognizance of the\r\noffence based upon the charge sheet and issued summons. On\r\n12-12-2022 the petitioner makes an application before the\r\nconcerned Court under Section 173(8) of the Cr.P.C., seeking a\r\ndirection to the respondent/Police – Investigating Officer for further\r\ninvestigation. The learned Sessions Judge dismisses the application\r\nseeking further investigation. It is the dismissal of the said\r\napplication filed by the petitioner is what drives the petitioner to\r\nthis Court in the subject writ petition. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The afore-narrated facts are not in dispute and they would\r\nnot require any reiteration. The learned senior counsel has sought\r\nto quote several instances as to why the case would require further\r\ninvestigation into the matter. Certain dates need reiteration. On\r\n24-08-2022 a crime comes to be registered by the wife against the\r\nhusband for offences punishable under Sections 8, 10 and 12 of the\r\nAct. The accused was arrested on 23-09-2022 at 10.15 a.m. and\r\nwas produced before the concerned Court at 4.30 p.m. The Police\r\nnever sought custodial interrogation of the husband\r\nnotwithstanding the heinous offences narrated. After about three\r\nweeks, charge sheet is also filed by the Police. On the ground that\r\nthe charge sheet is filed, the accused was enlarged on bail. The\r\naforesaid dates would indicate that investigation is conducted in a\r\nmortal hurry only to file a charge sheet before the concerned Court.\r\nThe aforesaid is not the only circumstance that would merit\r\nconsideration of the plea of the petitioner for further investigation.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">13. The aforesaid nine rungs of lacunae are the emphatic\r\nsubmissions of the learned senior counsel about the shoddy\r\ninvestigation conducted by the Investigating Officer only to help the\r\naccused, they are not made in thin air, but on incriminating\r\ndocuments. On a perusal at the charge sheet and the documents\r\nappended to the charge sheet, all the aforesaid lacunae, prima facie\r\nare correct. All the nine rungs which are in the considered view of\r\nthe Court vital piece of evidence have been deliberately let off by\r\nthe Investigating Officer. If this would not form the ingredients of a\r\nshoddy investigation, I fail to understand as to what would. The\r\nconcerned Court ought to have looked into the material that was\r\nbrought before it and not reject the application on the ground that\r\nthe petitioner wants to become a Public Prosecutor by filing an\r\napplication for further investigation under Section 173(8) of the\r\nCr.P.C. In the teeth of the aforesaid facts and on a deeper delving\r\ninto the matter, the Court having suo motu powers ought to have </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">borne in mind that a fair trial required further investigation and\r\nallowed the application. The order passed by the concerned Court\r\nis, thus unsustainable and requires to be obliterated.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. In the aforesaid facts, I deem it appropriate to notice the\r\nlaw laid by the Apex Court in cases which would require further\r\ninvestigation in the teeth of contents of a shoddy investigation. The\r\nApex Court in the case of DAYAL SINGH AND OTHERS v. STATE\r\nOF UTTARANCHAL has held as follows: </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\"21... <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">It is possible that despite such\r\ndefault/omission, the prosecution may still prove its case\r\nbeyond reasonable doubt and the court can so return its\r\nfinding. But, at the same time, the default and omission\r\nwould have a reasonable chance of defeating the case of\r\nthe prosecution in some events and the guilty could go </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">scot-free. We may illustrate such kind of investigation\r\nwith an example where a huge recovery of opium or\r\npoppy husk is made from a vehicle and the investigating\r\nofficer does not even investigate or make an attempt to\r\nfind out as to who is the registered owner of the vehicle\r\nand whether such owner was involved in the commission\r\nof the crime or not. Instead, he merely apprehends a\r\ncleaner and projects him as the principal offender\r\nwithout even reference to the registered owner.\r\nApparently, it would prima facie be difficult to believe\r\nthat a cleaner of a truck would have the capacity to buy\r\nand be the owner, in possession of such a huge quantity\r\ni.e. hundreds of bags of poppy husk. The investigation\r\nprojects the poor cleaner as the principal offender in the\r\ncase without even reference to the registered owner.\"</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Later, the Apex Court in the case of POOJA PAL v. UNION OF\r\nINDIA AND OTEHRS2\r\n has held as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\"67... <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">It was concluded that when the courts find\r\nextraordinary or exceptional circumstances rendering </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reinvestigation imperative, in such eventualities even de\r\nnovo investigation can be ordered. While ruling that in case\r\nof discernible deficiency in investigation or prosecution, the\r\ncourts have to deal with the same with iron hand\r\nappropriately within the framework of law, it was underlined\r\nthat in appropriate cases, even if charge-sheet was filed, it\r\nwas open for the High Court and also this Court to direct\r\ninvestigation of the case to be handed over to CBI or to any\r\nother agency or to direct investigation de novo in order to\r\ndo complete justice, in the facts of the case.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">69.... </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">It propounded that the word “ordinarily” applied\r\nunder Section 173(8) of the Code, did attest that if the\r\ninvestigation is unfair and deliberately incomplete and has\r\nbeen done in a manner with an object of helping a party, the\r\ncourt may direct normally for further investigation, and not\r\nfor reinvestigation. It was, however, added as a sequitur\r\nthat in exceptional circumstances, the court in order to\r\nprevent the miscarriage of criminal justice, and if it is\r\nconsidered necessary, may direct for de novo investigation\r\nas well. It was observed that if an investigation has not\r\nbeen conducted fairly, the resultant charge-sheet would be\r\ninvalid. It was held as well that such investigation would\r\nultimately prove to be a precursor of miscarriage of criminal\r\njustice and the court in such a contingency would be left to\r\nguess or conjecture, as the whole truth would not be\r\nforthcoming to it. It was held that fair investigation is a part\r\nof the constitutional rights guaranteed under Articles 20 and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">21 of the Constitution of India and thus, the investigating\r\nagency cannot be permitted to conduct an investigation in a\r\ntainted or biased manner.\"</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Apex Court following the aforesaid judgments, in the case of\r\nANANT THANUR KARMUSE v. STATE OF MAHARASHTRA AND\r\nOTHERS3\r\n has held as follows:<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\"36. Now, so far as the power of the constitutional\r\ncourts to order further investigation/reinvestigation/de\r\nnovo investigation even after the charge-sheet is filed\r\nand charges are framed is concerned, the following\r\ndecisions are required to be referred to.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>41. Now, so far as the reliance placed upon the\r\ndecision of this Court in Rama Chaudhary [Rama\r\nChaudhary v. State of Bihar, (2009) 6 SCC 346 : (2009) 2\r\nSCC (Cri) 1059] relied upon on behalf of the respondentaccused is concerned, it is required to be noted that in\r\nthe said decision, this Court was considering the scope of\r\nSections 173(8) and 173(8)(2)CrPC and the right of the\r\npolice to “further investigation”. It is observed that the\r\npolice has no right for “fresh investigation” or\r\n“reinvestigation”. However, this Court had no occasion to\r\nconsider the powers of the constitutional courts, which\r\nare dealt with and considered in Bharati Tamang [Bharati\r\nTamang v. Union of India, (2013) 15 SCC 578 : (2014) 6\r\nSCC (Cri) 566] and Dharam Pal [Dharam Pal v. State of\r\nHaryana, (2016) 4 SCC 160 : (2016) 2 SCC (Cri) 259] .</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n43. Applying the law laid down by this Court in the\r\naforesaid decisions and the principle of law laid down\r\nhereinabove, it is required to be considered whether a\r\ncase is made out for further investigation/fresh\r\ninvestigation/reinvestigation/de novo investigation or\r\nnot. </i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>49... <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Therefore, in the facts and circumstances of the case\r\nnarrated hereinabove, we are of the opinion that a case is\r\nmade out for further investigation and the State agency\r\nmay be permitted to conduct a further investigation and\r\nto bring on record the further material, which may be in\r\nthe furtherance of fair investigation and fair trial. The\r\nHigh Court has committed a very serious error in not\r\nordering and/or permitting the State Police agency to\r\nfurther investigate into the FIRs bearing Nos. 119 and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">120 of 2020. The High Court has not considered the\r\nrelevant aspects narrated hereinabove and therefore\r\ninterference of this Court is warranted.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>50. In view of the above and for the reasons stated\r\nabove, the present appeal succeeds in part. The\r\nimpugned judgment and order [Anant Thanur Karmuse v.\r\nState of Maharashtra, 2022 SCC OnLine Bom 9405]\r\npassed by the High Court refusing to transfer the\r\ninvestigation of FIR No. 120 of 2020 to CBI is hereby\r\nconfirmed. The impugned judgment and order [Anant\r\nThanur Karmuse v. State of Maharashtra, 2022 SCC\r\nOnLine Bom 9405] passed by the High Court refusing to\r\norder further investigation/reinvestigation is hereby\r\nquashed and set aside and we direct/permit the State\r\ninvestigating agency to further investigate into the FIR\r\nbearing No. 120 of 2020 and on what aspects the further\r\ninvestigation shall be caried out is left to the wisdom of\r\nthe State investigating agency. Further investigation be\r\ncarried out and completed as early as possible, preferably\r\nwithin a period of three months from the date of receipt\r\nof the present order and the further supplementary\r\nreport be placed before the learned Magistrate in the\r\ntrial/before the trial court concerned thereafter\r\nforthwith, which may be considered by the trial court in\r\naccordance with law and on its own merits and the\r\naccused be tried accordingly and in accordance with law\r\nand on merits.”</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Later, the Apex Court in the case of STATE THROUGH CBI v.\r\nHEMENDHRA REDDY AND ANOTHER has held as follows:<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\"83. We may summarise our final conclusion as under:</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>(i) Even after the final report is laid before the\r\nMagistrate and is accepted, it is permissible for the\r\ninvestigating agency to carry out further investigation\r\nin the case. In other words, there is no bar against\r\nconducting further investigation under Section 173(8)\r\nof the CrPC after the final report submitted under\r\nSection 173(2) of the CrPC has been accepted.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>(ii) Prior to carrying out further investigation under\r\nSection 173(8) of the CrPC it is not necessary that the\r\norder accepting the final report should be reviewed,\r\nrecalled or quashed.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n(iv) Further investigation is merely a continuation of\r\nthe earlier investigation, hence it cannot be said that\r\nthe accused are being subjected to investigation twice\r\nover. Moreover, investigation cannot be put at par with\r\nprosecution and punishment so as to fall within the\r\nambit of Clause (2) of Article 20 of the Constitution. The\r\nprinciple of double jeopardy would, therefore, not be\r\napplicable to further investigation. <br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>(v) There is nothing in the CrPC to suggest that the\r\ncourt is obliged to hear the accused while considering\r\nan application for further investigation under Section\r\n173(8) of the CrPC.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-size: 12pt;\">6. Although sub section (8) of Section 173 of Cr.\r\nP.C. does not, in specific terms, mention about the\r\npowers of the court to order further investigation,\r\nthe power of the police to conduct further\r\ninvestigation envisaged therein can be triggered into\r\nmotion at the instance of the court. Therefore,\r\nacceptance of final report by Magistrate does not\r\ndebar him from taking cognizance of the offence if no\r\nfurther investigation fresh materials come to light. In\r\nsuch a situation, the power of the court to direct the\r\npolice to conduct further investigation cannot have\r\nany inhibition. There is nothing in Section 173(8) of\r\nCr. P.C. to suggest that the court is obliged to hear\r\nthe accused before any such direction is made.</span><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-size: 12pt;\">8. In so far as the power of the Magistrate to\r\ndirect further investigation is concerned, I may point\r\nout her that the power of the Magistrate under\r\nSection 156(3) of the code to direct further\r\ninvestigation is clearly an independent power and\r\ndoes not stand in conflict with the power of the\r\nPolice Officer. The power conferred upon the\r\nMagistrate under Section 156(3) of the code can be\r\nexercised by the Magistrate even after submission of\r\na report by the Investigating Officer, which would\r\nmean that it would be open to the Magistrate not to\r\naccept the conclusion of the Investigating Officer and\r\ndirect further investigation. This provision does not,\r\nin any way, affect the power of the Investigating </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Officer to further investigate the case even after\r\nsubmission of the report as provided in sub section\r\n(8) of Section 173 of the Code. Therefore,\r\nconsidering all these provisions, in my view, the\r\nMagistrate can order reopening of the investigation\r\neven after acceptance of the final report “making\r\nclosure report”.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>\r\n9. In the instant case, the learned Principal\r\nSpecial Judge for CBI Cases has passed the impugned\r\norder on the petition filed by the Investigating\r\nOfficer, Inspector, CBI/ACB. It is now clear that sub\r\nsection (8) of section 173 of Cr. P.C. gives power to\r\nthe Investigating Officer to reopen the investigation\r\nin the case in which final report had been submitted\r\nearlier and after completing the investigation fresh\r\nreport has to be submitted before the learned Special\r\nJudge under sub section (2) of Section 173 of the\r\nCode. Of course, this can be done only on such fresh\r\nmaterials which did not come to the knowledge of\r\nthe Investigating Officer, while he was conducting\r\nthe investigation and in my view, exactly the same\r\nsituation prevailed in this case.\"</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the light of the aforesaid judgments of the Apex Court what is\r\nrequired to be noticed is, whether fair trial would require further\r\ninvestigation. The Apex Court has clearly deduced certain\r\nconclusions for grant of permission to further investigation in the\r\ncase of HEMENDHRA REDDY (supra) where the Apex Court holds\r\nthat even after the final report is laid before the Magistrate and is\r\naccepted, it is permissible for the investigating agency to carry out\r\nfurther investigation in the case; prior to carrying out further\r\ninvestigation it is not necessary that the order accepting the final\r\nreport should be reviewed, recalled or quashed. Further\r\ninvestigation is only a continuation of the earlier investigation and\r\nthe accused in such case need not be heard.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. On the bedrock of the principles laid down by the Apex\r\nCourt in the aforesaid judgments and the lacunae that is projected\r\nby the petitioner and accepted in the course of the order, it would\r\nlead to an unmistakable conclusion that the case at hand requires\r\nfurther investigation. At whose hands is the question? The\r\nInvestigating Officer right from the beginning, as is projected by the\r\npetitioner, appears to have been partisan towards the accused.\r\nTherefore, it would not be safe for this Court to direct further\r\ninvestigation to be conducted by the very Investigating Officer.\r\nHence, further investigation shall be conducted by a different\r\nInvestigating Officer to be nominated by the Commissioner of Police\r\nor any Competent Authority empowered to appoint the\r\nInvestigating Officer and the Investigating Officer shall conclude\r\nfurther investigation within three months from the date of\r\nentrustment of such investigation, while further investigating, the\r\nInvestigating Officer shall bear in mind the observations made in\r\nthe course of the order.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Writ petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '28ec08a646d1e6a9fb4c2cf571224b7d.jpeg', '4a2947c18b2cab4cce657f6250a6577e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-05', 1, '', '', '2023-07-04 14:44:39', '2023-07-05 12:16:17');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3157, 'iokbpxrd5tM6JBqLzA2gCdeLz', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When complaint and counter complaint are filed making identical allegations, accused in one complaint cannot seek quashment of the complaint on the ground that the allegations are civil in nature. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shantanu Rastogi Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.P. 5084 of 2020 decided on 21 January 2021.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>Dispute between \'NoBroker\' and \'Mygate\':</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 5.1.<span style=\"white-space:pre\">	</span>\'NoBroker\' claims that \'Mygate\' is engaged in similar services as that of \'NoBroker\' and \'Mygate\' has made use of distinguishing features of \'NoBroker\' for the establishment of its own businesses. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5.2.<span style=\"white-space:pre\">	</span>\'Mygate\' also claims similarly by contending that \'NoBroker\' has used the distinguishing factors of \'Mygate\' in its software. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5.3.<span style=\"white-space:pre\">	</span>From the background of both the companies, it is clear that both of them are in the same field of activity and carry out more or less similar businesses.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6.1.<span style=\"white-space:pre\">	</span>A complaint came to be filed by \'Mygate\' against \'NoBroker\' and its Directors/Officers on 19.06.2020 with CID, Cyber Crime Division, Bangalore alleging that \'Mygate\'s confidential information has been stolen by \'NoBroker\' and its employees. \'NoBroker\' has been misusing the information of \'Mygate\' in order to establish business relationship with the \'Mygate\' existing customers as also defame \'Mygate\'.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6.4.<span style=\"white-space:pre\">	</span>An employee of \'NoBroker\' who sought to sell the \'NoBroker\' package and/or services. This according to \'Mygate\' establish that \'NoBroker\' had access to the information of \'Mygate\', which had not been shared with anybody else and this according to \'Mygate\' amounts to theft of information and data by \'NoBroker\' of that available with \'Mygate\'. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6.5.<span style=\"white-space:pre\">	</span>It is stated in the said complaint that similar mocks were conducted on several other occasions and locations. When the employees of \'NoBroker\' had contacted the said mock customers. It is stated that during the said conversations of mock client/customers, the employees of \'NoBroker\' had defamed \'Mygate\', supplied false information relating to \'Mygate\' services and product and on that background, action was sought to be taken as against \'NoBroker\' and its employees. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6.6.<span style=\"white-space:pre\">	</span>In the said complaint, it is further alleged that the telephonic conversation have been recorded, which is available for the purpose of investigation. Hence, a complaint came to be lodged against \'NoBroker\' for offences punishable under Section 406, 408, 411 and 420 of IPC and Sections 66(C) of the Information Technology Act, 2000.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7.1.<span style=\"white-space:pre\">	</span>\'NoBroker\' filed a complaint on 28.06.2020 against \'Mygate\' and its employees complaining of various sharp and unethical practices of \'Mygate\'. It is stated that \'NoBroker\' had set up a mock society, mock crime as also mock customer and the mock customer received calls from \'Mygate\' employees offering \'Mygate\' services to such mock client. It is alleged that the details of the account created for the mock society was not available in public domain yet \'Mygate\' and its employees having access to the information and contacted the mock customer. In this background, it is alleged that there is theft of data of \'NoBroker\' committed by \'Mygate\'. To support and establish the above allegations, it is stated that there are various whatsApp messages, which are available, which could be provided to the Investigating Agency. It is further alleged that \'Mygate\' had planted its employees or agents in the Corporate Office of \'NoBroker\' with an intention of stealing \'NoBroker\'s confidential information and to misappropriate \'NoBroker\' sensitive data and as such, action was sought to be taken against \'Mygate\' and its employees for the offence punishable under Sections 420 of IPC and Sections 66, 43 of the Information Technology Act, 2000.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8.3.<span style=\"white-space:pre\">	</span>The only contention raised by these Directors is that they are Investee Directors inasmuch as they represent the investor in \'NoBroker\', in that, the investor is a venture Capital Company and only for the purpose of safeguarding the investment made by the investor - Venture Capital Company, the petitioners in Crl.P No. 5084/2020 and Crl.P No.5092/2020 have been nominated on the Board of \'NoBroker\' and they have no role to play in the day to day functioning of \'NoBroker\', they do not execute any executive functions but are only nominal Directors.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>From the averments made by counsel for the parties, the points that would arise for determination by this Court are: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.1.<span style=\"white-space:pre\">	</span>When a complaint and a counter complaint are filed, can an accused in one complaint contend that the complaint against him is required to be quashed on the ground that the allegations are civil in nature when the said accused has filed a counter complaint making identical allegations that those very offences are criminal in nature? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.2.<span style=\"white-space:pre\">	</span>Whether a Director appointed by a Venture Capital Company can be prosecuted as regards criminal offences alleged against the company where investment is made? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13.3.<span style=\"white-space:pre\">	</span>What order?<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>Answer to Point No.1: When a  complaint and a counter complaint are filed, can an accused in one complaint contend that the complaint against him is required to be quashed on the ground that the allegations are civil in nature when the said accused has filed a counter complaint making identical allegations that those very offences are criminal in nature?<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14.5.<span style=\"white-space:pre\">	</span>One of the cardinal rules for a party to claim for quashing of the criminal proceedings on the ground that the allegations made therein are relating to a civil dispute is that such a person ought not to have filed a criminal complaint on the very same set of facts and/or on very similar allegations.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 14.6.<span style=\"white-space:pre\">	</span>In the present case, both \'Mygate\' and \'NoBroker\' have made similar if not identical allegations against each other. According to both of them their data has been stolen by the other. Having made such a complaint against the other, it would not now lie for either of the parties to contend that the complaint filed against their clients cannot be continued since the disputes are commercial in nature. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14.7.<span style=\"white-space:pre\">	</span>I Answer Point No.1 by holding that, once a party files a criminal complaint against the other and if such other were to file a criminal complaint against the first complainant, then the first complainant cannot be heard to say that the second complaint is purely commercial and has to be quashed. When there is a complaint and counter complaint filed on the basis of similar allegation alleging criminal offences neither of the parties can be heard to say that the complaint against it is civil/commercial in nature, while the complaint filed by it is proper and correct.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 14.8.<span style=\"white-space:pre\">	</span>In view of the above discussion, I am of the considered opinion that both the complaint and counter complaint cannot be quashed. As such Criminal Petition No.3426/2020 and Crl.P No.7780/2020 are required to be dismissed and are so dismissed. However, since there is a complaint and counter complaint, it is required that both of them are investigated by the very same police. The complaint filed by \'Mygate\' has been registered as Crime No.9/2020 by CID Police on 19.06.2020 and the complaint filed by \'NoBroker\' has been registered as Crime No.155/2020 on 28.06.2020 by the Bellandur Police Station. In view thereof, I direct the complaint in Crime No.155/2020 to be transferred from Bellandur Police Station to CID Police Station. The first respondent in Crl.P No.3426/2020 viz., CID Police Station is directed to investigate the Crime No.9/2020 and Crime No.155/2020 together.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>Answer to Point No.2: Whether a Director appointed by a Venture Capital Company can be prosecuted as regards criminal offences alleged against the company where investment is made?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15.7.<span style=\"white-space:pre\">	</span>In Girdhari Lal Gupta (supra), it was held that “a person in-charge and responsible for the conduct of the affairs of a company” would mean a person in over- all control of the day to day business of the company or firm. The life blood of a company is its finances, the so called investee directors being incharge of the finances, it cannot be said that they are not responsible for the conduct of the Company. There is a periodical review conducted as regards the performance of the company, audit conducted as regards the amounts spent, which would be the basis for the investor to release funds or further invest in the company. There being a strict financial control exercised by the investor company as regards the financial affairs of nobroker.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 15.8.<span style=\"white-space:pre\">	</span>Harmeet Singh Paintal\'s case (supra), it has been held that \"if the accused is a Director or an officer of a company who signed the cheques on behalf of the company then also it is not necessary to make specific averment in the complaint.\" Admittedly the Investee Directors were incharge of the finances and there could be no financial decision taken without their concurrence and/or approval. The entire offence alleged against the company requiring the use of substantial financial resources of the company, it cannot at this stage be said that the investee Directors had no role to play in the same. It is not their case that they were not aware of the business, the only defence being that they were not incharge of the day to day affairs, this aspect in my considered opinion can only be considered after investigation is complete and not at the stage of registration of the FIR.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15.9.<span style=\"white-space:pre\">	</span>In Sunil Bharti Mittal\'s case (supra), it was held that \"It is abundantly clear from the above that the principle which is laid down is to the effect that the criminal intent of the “alter ego” of the company, that is the personal group of persons that guide the business of the company, would be imputed to the company/corporation. The legal proposition that is laid down in the aforesaid judgment in Iridium India case is that if the person or group of persons who control the affairs of the company commit an offence with a criminal intent, their criminality can be imputed to the company as well as they are “alter ego” of the company.\" This being relatable to the prosecution of a company for a criminal offence. Applying the said dicta to the present case the company can be prosecuted for a criminal offence as that complained of in the present case so also could any officer of the company who controls the affairs of the company, in the present case the investee directors controlling the finances of the company, it cannot at this stage be said that they are not in charge of the affairs of the company, or did not have a say in the manner of running of the company, which is however subject to investigation and/or trial.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b> 15.10.<span style=\"white-space:pre\">	</span>In Standard Chartered Bank\'s case (supra), it was held that \"In the case of a Director, Secretary or Manager [as defined in Section 2(24) of the Companies Act] or a person referred to in clauses (e) and (f) of Section 5 of the Companies Act, an averment in the complaint that he was in charge of, and was responsible to the company, for the conduct of the business of the company is necessary to bring the case under Section 141(1) of the Act. No further averment would be necessary in the complaint, though some particulars will be desirable. They can also be made liable under Section 141(2) by making necessary averments relating to consent and connivance or negligence, in the complaint, to bring the matter under that sub-section.\" Applying the said dicta to the present case it is seen that there are sufficient averments made in the complaint against the investee directors making allegation as regards their involvement and at this stage it cannot categorically be said that they are not involved.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15.14.<span style=\"white-space:pre\">	</span>It is but required for the so called investee directors who are vested with the obligation of maintaining the financial integrity or discipline of the company to see to it that \'Nobroker\' does not spend monies in an improper manner and or for commission of criminal offences, that being their sole duty on the board. Since monies have been spent on the commission of the offences and financial benefit derived by the investor company from such action, it cannot without investigation be categorically stated that the investee directors were not involved in the commission of the offence as alleged. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15.15.<span style=\"white-space:pre\">	</span>The documents produced as observed above indicates substantial use of the financial resources of no-broker in the commission of the offences if proved, which could not have been done without the concurrence and/or approval of the investee directors. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15.16.<span style=\"white-space:pre\">	</span>For all the aforesaid reasons it cannot at this stage be said that the investee directors were not in charge of or were not knowledgeable of or did not participate in the commission of the offence, for the purposes of exercise of jurisdiction under section 482 of the Cr.P.C. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15.17.<span style=\"white-space:pre\">	</span>I answer Point No.2 by holding that a Director appointed by a  Venture Capital Company can be prosecuted as regards criminal offences alleged against the company  where investment is made, subject however to the investigation disclosing their involvement in the commission of the offence. Merely because a director has been appointed by an investor - venture capital company, it cannot be said that such a Director is a nominal or a non-executive director of the company, to seek for quashing an FIR. The aspect of involvement of such a director in the offence can only be ascertained after investigation is completed. Such a director cannot be compared with an Independent Director who has no role to play in the business of the company and does not derive any benefit thereform. A director appointed by an investor to safeguard the investment made by the investor cannot be said to be independent.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space:pre\">	</span>Answer to Point No.3: What order? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16.1.<span style=\"white-space:pre\">	</span>In the result, Crl.P No.3426/2020, Crl.P No.7780/2020, Crl.P No.5084/2020 and Crl.P No. 5092/2020 are dismissed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6ed341a86a696eae6e9d45e051876723.JPG', 'd106d7fed0948aad85d00d7e8f677e5b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-05', 1, '', '', '2023-07-04 15:28:39', '2023-07-05 08:09:53');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3162, 'v4ih1bnYVZUItDXI3mncebvKB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Advocates have a right to appear before the Deputy Commissioner in the proceedings under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K. Srinivas Ganiga Vs Union of India and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 1912 of 2023 decided on 26 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Petitioner is before this Court seeking a declaration to declare\r\nSection 17 of the Maintenance and Welfare of Parents and Senior\r\nCitizens Act, 2007 (hereinafter referred to as ‘the Act’ for short), to\r\nbe unconstitutional and has further sought quashment of an order\r\ndated 21-02-2023 passed by the Deputy Commissioner denying\r\nrepresentation of the petitioner by an Advocate in the appeal\r\nproceedings before the Deputy Commissioner. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Facts, in brief, germane are as follows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n The petitioner purchases a property situated at Puttur Village,\r\nUdupi District in the years 1972 and 2003. At that point in time the\r\npetitioner was residing with his son/the 3rd respondent. It is the\r\nallegation that respondents 3 and 4 transferred the property owned\r\nby the petitioner to their names and thereafter the 3rd respondent\r\nbegan to torture the petitioner, both physically and mentally. After\r\ncoming into force of the Act, the petitioner knocked at the doors of\r\nthe Assistant Commissioner invoking the provisions of the Act\r\nseeking restoration of property to his name alleging that the <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ettlement deed dated 26-11-2014 is fraudulently made by\r\nrespondents 3 and 4/children of the petitioner.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The Assistant Commissioner by his order dated 22-12-2022\r\nallows the petition in part, directs that the petitioner and his wife\r\nshould not be disturbed from the property and they will remain in\r\nthe property till their life time and their needs also should be taken\r\ncare of by the children. The petitioner then calls the order of the\r\nAssistant Commissioner in question before the Deputy\r\nCommissioner by filing an appeal under the Act through a legal\r\npractitioner. The Deputy Commissioner in terms of endorsement\r\ndated 21-02-2023 rejected the request of the petitioner on the\r\nground that Section 17 of the Act prohibits representation of legal\r\npractitioner before the Assistant Commissioner or the Deputy\r\nCommissioner in the original proceedings or in the appeal\r\nproceedings. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. I have given my anxious consideration to the submissions\r\nmade by the respective learned counsel and have perused the\r\nmaterial on record. In furtherance whereof, the issue that falls for\r\nconsideration is -</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>\r\nWhether Section 17 of the Act is ultra vires\r\nSection 30 of the Advocates’ Act, 1960 and resultantly\r\nunenforceable? </b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. The contention of the learned counsel for the petitioner\r\nmerits acceptance as the petitioner is an octogenarian and is\r\nseeking protection under the Act. Looking at the age of the\r\npetitioner, he could not defend himself in contra-distinction to the\r\nvehement defense put up by the children. This has undoubtedly\r\nresulted in a fractured order passed by the Assistant Commissioner\r\nas there is only a direction that the petitioner and his wife should\r\nnot be disturbed from the house but there is no order to maintain <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the petitioner. Such cases where the parties are more than 60, 70\r\nor 80 years galore before the Tribunal, they would not be in a\r\nposition to defend their own case and sometimes would become\r\ntongue tied on the vehement opposition put up by the children. The\r\ncase at hand forms one such illustration of many such cases that\r\nwould come before the Tribunal. Apart from the legality of the\r\nissue whether the Act would place an embargo or otherwise, the\r\naforesaid facts of the case at hand are grave enough to permit\r\nassistance by a legal practitioner. Whether it should be on a case\r\nto case basis or every applicant has a right to be defended is what\r\nis to be answered. Therefore, the kernel of this conundrum\r\nbecomes the constitutionality of the embargo under Section 17 of\r\nthe Act and it being repugnant to Section 30 of the Advocates’ Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. Section 30 of the Advocates Act comes into force, as\r\nobserved hereinabove, in the year 2011 i.e., on 15.06.2011.\r\nTherefore, right of an Advocate to practice before the Tribunal\r\nwhich is derived under Section 30 cannot be seen to be controlled\r\nby an enactment earlier to it, i.e., in terms of Section 17 of the Act.\r\nThe view of mine, in this regard, is fortified by the judgment\r\nrendered by the High Court of Punjab and Haryana in PARAMJIT\r\nKUMAR SAROYA v. THE UNION OF INDIA AND ANOTHER wherein the Division Bench considers this very issue, i.e., right to\r\nlegal representation and answers that Section 17 should not come <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in the way of legal representation on behalf of parties post 15-06-\r\n2011 in view of Section 30 of the Advocates Act coming into force.\r\nThe Division Bench of the High Court of Punjab and Haryana has\r\nheld as follows:</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>The aforesaid Section did receive the attention of the\r\nMembers of the Parliament during the course of debate\r\nas is apparent from perusal of the debates. The Hon\'ble\r\nMinister while piloting the Bill referred to section 125 of\r\nthe Cr.P.C. incorporating the provision for maintenance of\r\nparents and in that context it was observed that going to\r\nthe Court and engaging lawyers would be a very\r\ncumbersome process as well as time consuming apart\r\nfrom costs. The emphasis was put on conciliation and,\r\nthus, it was observed there would be no advocates. The\r\nTribunal would follow summary procedure and the claims\r\nwould be disposed of in a time bound manner. In fact,\r\nsome reservation was expressed in this behalf in\r\nParliament as to how the application would be drafted,\r\nservice effected etc. without any legal assistance. One of\r\nthe Members Sh. S.K. Kharventhan observed that since\r\nmore Tribunals are being constituted, the powers of the\r\nCourts are shrinking. In that context, it was observed\r\nthat Section 30 of the Advocates Act dealing with the\r\nright of advocates to practise, though forming a part of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the original Act of 1961, had still not been implemented\r\nand, thus, was taking away the powers of the lawyers. He\r\nexpressed concern that if the lawyers are not appearing,\r\nbut NGOs appear in matters of conduct of cases and\r\nadducing evidence there would be a problem. There\r\nwould be no accountability of such representatives\r\ncontrary to the lawyers representing where there is the\r\nBar Council.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\nWe have referred to the aforesaid in the context of\r\nSection 30 of the Advocates Act having been brought into\r\nforce as on the date of discussion or even the passing of\r\nthe Bill and the said Act.</span><span style=\"font-size: 12pt;\"> </span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“30. Right of advocates to practise - Subject to provisions\r\nof this Act, every advocate whose name is entered in the\r\n[State roll] shall be entitled as of right to practise\r\nthroughout the territories to which this Act extends-</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n(i) in all courts including the Supreme Court;</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>(ii) before any tribunal or person legally authorized to\r\ntake evidence; and</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>(iii) before any other authority or person before whom\r\nsuch advocate is by or under any law for the time being in\r\nforce entitled to practise.”\r\nThe aforesaid provision confers a right to practise on the\r\nadvocate throughout the territories before Courts,\r\nTribunals and any other authority before whom such\r\nadvocate is entitled to practise. He laid emphasis on the\r\naspect “legally authorized to take evidence” to submit <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that the role of a legal practitioner becomes crucial where\r\nevidence has to be adduced, as under the provisions of\r\nthe said Act, they no more remain simple proceedings of\r\njust determining maintenance upto Rs. 10,000/-, but deal\r\nwith rights in immovable properties and declarations to\r\nnullify transfers under a deeming provision of fraud or\r\ncoercion or undue influence. These are ticklish legal\r\nissues for which any forum would require proper legal\r\nassistance. A Tribunal can enforce attendance of parties\r\nand issue bailable & nonbailable warrants. Powers under\r\nCivil and Criminal Procedure Codes have been conferred\r\npractically on the lines of a Court to a forum. In such\r\ncomplexities, it is obvious that there is a very high\r\nchance of either the person who claims or the opposite\r\nside seeking assistance from a legal practitioner at a\r\nstage prior to filing. If that be the position, should such\r\nassistance of legal practitioners be debarred at the\r\ncrucial stage of taking depositions and arguments\r\nthereafter as the prelims can always be done in chambers\r\nof legal practitioners.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>The aforesaid discussion, thus, shows that the basic\r\nreasoning is predicated on Section 30 of the Advocates\r\nAct not being brought into force. In this context, while\r\nreferring to Section 14 of the Bar Council Act, 1926, an\r\nemphasis was laid on the expression “persons legally\r\nauthorized to take evidence” before any “tribunal” or\r\n“persons”. This attains significance in view of Section 30\r\nof the Advocates Act which had unfortunately not been\r\nbrought into force till then.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“6..... <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">It is not clear whether the Central\r\nGovernment has applied its mind at all to the question\r\nwhether Section 30 of the Act should be brought into\r\nforce. In these circumstances, we are of the view that the\r\nCentral Government should be directed to consider within\r\na reasonable time the question whether it should bring\r\nSection 30 of the Act into force or not. If on such\r\nconsideration the Central Government feels that the\r\nprevailing circumstances are such that Section 30 of the\r\nAct should not be brought into force immediately it is a\r\ndifferent matter. But it cannot be allowed to leave the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">matter to lie over without applying its mind to the said\r\nquestion. Even though the power under Section 30 [sic\r\nSection 1(3)] of the Act is discretionary, the Central\r\nGovernment should be called upon in this case to\r\nconsider the question whether it should exercise the\r\ndiscretion one way or the other having regard to the fact\r\nthat more than a quarter of century has elapsed from the\r\ndate on which the Act received the assent of the\r\nPresident of India. The learned Attorney General of India\r\ndid not seriously dispute the jurisdiction of this Court to\r\nissue the writ in the manner indicated above.”</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>Learned Amicus Curiae has referred to Section 5 of the\r\nGeneral Clauses Act, 1987 which reads as under:-</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“5. Coming into operation of enactments -\r\n[(1) Where any Central Act is not expressed to come into\r\noperation on a particular day, then it shall come into\r\noperation on the day on which it receives the assent-</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n(a) in the case of a Central Act made before the\r\ncommencement of the Constitution, of the Governor\r\nGeneral, and</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>(b) in the case of an Act of Parliament, of the President]\r\n(3) Unless the contrary is expressed, a 1\r\n[Central Act] or\r\nRegulation shall be construed as coming into operation\r\nimmediately on the expiration of the day preceding its\r\ncommencement.”\r\nThe reference aforesaid is in the context as to when a\r\nCentral Act comes into force i.e. when it is not expressed\r\nto come into operation on a particular day, it is to be on\r\nthe day when it receives the assent of the President; and\r\non the expiry of the day preceding its commencement\r\nunder sub section (3) of Section 5 of the General Clauses\r\nAct. However, this has a caveat that “unless the contrary\r\nis expressed” by the Parliament itself in terms of sub\r\nsection (3) of Section 1 of the Advocates Act authorizing\r\nthe Central Government to appoint different dates for\r\ndifferent provisions of the Act. Thus, it did not come into <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">force in terms of clause (b) and sub section (3) of Section\r\n5 of the General Clauses Act and came into force almost\r\nfive decades later. Thus, it became law posterior to the\r\nsaid Act.\r\nIn the conspectus of the discussions aforesaid, we are\r\nthus of the view that the decision vide section 30 of the\r\nAdvocates Act has become law on a posterior date to\r\nSection 17 of the said Act which is sufficient for us to\r\ncome to the conclusion that there cannot be an absolute\r\nbar to the assistance by legal practitioners to a Tribunal\r\nor the Appellate Tribunal despite the “notwithstanding”\r\nclause. Both the enactments are Central enactments.\r\nWhile the said Act was being enacted, the absence of\r\nSection 30 of the Advocates Act was known. Not having\r\nconferred that right under Section 30 of the Advocates\r\nAct on the legal practitioner, the Parliament in its wisdom\r\nhad found no reasons to give such rights under Section\r\n17 of the said Act. However, the situation has\r\nsubsequently changed on account of Section 30 of the\r\nAdvocates Act having come into force. The right conferred\r\nunder Section 30, subject to the provisions of the\r\nAdvocates Act, is on every advocate so far his name is\r\nentered in the State roll to practise “throughout the\r\nterritory to which this Act extends”. Such right is qua all\r\nCourts including the Supreme Court. Such right is also\r\nbefore any Tribunal or person “legally authorized to take\r\nevidence”.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Thus, if a Tribunal is legally authorized to take\r\nevidence, there is right in the advocate to practise before\r\nthe Tribunal. The Tribunal has the right to take evidence.\r\nThat being the status of the Tribunal, there has been\r\nintrinsic right in the advocate to practise before such a\r\nTribunal in view of Section 30 of the Advocates Act which\r\ncannot be taken away. The position would be the same\r\nbefore the Appellate Tribunal in view of the powers\r\nconferred on a Tribunal constituted under Section 7 of the\r\nsaid Act. Sections 6, 8 and 11 of the said Act leave no\r\nmanner of doubt about the vast powers including taking\r\nthe evidence on oath, enforcing attendance of witnesses,\r\ncompelling discovery of documents, it being a Civil Court\r\nfor all the purposes of Section 195 and Chapter XXVI of\r\nthe Cr.P.C. etc.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>This is subsequently followed by a learned single Judge of the High\r\nCourt of Delhi, in the case of PAWAN RELEY (supra) wherein the\r\nHigh Court has held as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“8. The Division Bench of the Punjab & Haryana\r\nHigh Court in Paramjit Kumar Saroya v. Union of\r\nIndia [Paramjit Kumar Saroya v. Union of India2014 SCC\r\nOnLine P&H 10864] , after considering the Act and various judgments passed from time to time, interpreted\r\nthe import of Section 30 of the Advocates Act, 1961 in\r\nrelation to the Maintenance Act, 2007. It was held that\r\nSection 30 of the Advocates Act, 1961 came into force on\r\n15-6-2011, i.e. much after coming into force of the\r\nMaintenance Act in the year 2007. Section 30 of the\r\nAdvocates Act, 1961 gives an absolute right to an\r\nadvocate to practice before all courts and tribunals and\r\nwould prevail over the Maintenance Act.<br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>48. In the conspectus of the discussions aforesaid,\r\nwe are thus of the view that the decision vide\r\nSection 30 of the Advocates Act has become law on\r\na posterior date to Section 17 of the said Act which\r\nis sufficient for us to come to the conclusion that\r\nthere cannot be an absolute bar to the assistance\r\nby legal practitioners to a tribunal or the Appellate\r\nTribunal despite the “notwithstanding” clause. Both\r\nthe enactments are Central enactments. While the\r\nsaid Act was being enacted, the absence of Section\r\n30 of the Advocates Act was known. Not having\r\nconferred that right under Section 30 of the\r\nAdvocates Act on the legal practitioner, the\r\nParliament in its wisdom had found no reasons to\r\ngive such rights under Section 17 of the said Act.\r\nHowever, the situation has subsequently changed\r\non account of Section 30 of the Advocates Act\r\nhaving come into force. The right conferred under\r\nSection 30, subject to the provisions of the\r\nAdvocates Act, is on every advocate so far his name\r\nis entered in the State roll to practise “throughout\r\nthe territory to which this Act extends”. Such right\r\nis qua all courts including the Supreme Court. Such\r\nright is also before any tribunal or person “legally\r\nauthorised to take evidence”. Thus, if a tribunal is\r\nlegally authorised to take evidence, there is right in\r\nthe advocate to practise before the Tribunal. The\r\nTribunal has the right to take evidence. That being\r\nthe status of the Tribunal, there has been intrinsic  right in the advocate to practise before such a\r\ntribunal in view of Section 30 of the Advocates Act\r\nwhich cannot be taken away. The position would be\r\nthe same before the Appellate tribunal in view of\r\nthe powers conferred on a tribunal constituted\r\nunder Section 7 of the said Act. Sections 6, 8 and 11\r\nof the said Act leave no manner of doubt about the\r\nvast powers including taking the evidence on oath,\r\nenforcing attendance of witnesses, compelling\r\ndiscovery of documents, it being a civil court for all\r\nthe purposes of Section 195 and Chapter 26 CrPC,\r\netc.\r\n49. The overriding provisions of the said Act under\r\nSection 3 in the context of Section 17 of the said\r\nAct have to be appreciated in the context of the law\r\nprevalent when the said Act was enacted. The\r\nground reality has changed on account of Section\r\n30 of the Advocates Act having come into force on\r\n15-6-2011, while all the judgments taking contrary\r\nview are based on Section 30 not being notified and\r\nthe consequence thereof. Section 30 was not law\r\nwhen the said enactment was enacted and brought\r\ninto force.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>50. The aforesaid anomaly apart from our\r\nobservations aforesaid itself would be requiring the\r\nCentral Government to look into the matter of\r\nSection 17 of the said Act formally still being on the\r\nstatute book.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>51. We, thus, conclude on the provisions of the Acts\r\nas under:\r\n(i) We would request the Central Government to\r\nhave a relook into the provisions of the said Act in\r\nview of our observations aforesaid, moreso in the\r\ncontext of Section 30 of the Advocates Act.\r\n(ii) The right to appeal is conferred on a party\r\naggrieved under Section 16 of the said Act.  (iii) Section 17 would not come in the way of legal\r\nrepresentation on behalf of parties post 15-6-2011\r\nin view of Section 30 of the Advocates Act having\r\ncome into force.”</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>9. The Punjab & Haryana High Court, by way of the\r\nsaid judgment, had requested the Central Government to\r\nhave a relook into the provisions of the Maintenance Act\r\nin context of Section 30 of the Advocates Act, 1961.<br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i> </i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the light of the afore-quoted judgments what would\r\nunmistakably emerge is, that the petitioner had a right to be\r\nrepresented by a legal practitioner before the Tribunal i.e., before\r\nthe Assistant Commissioner</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Sub-section (2) of section 8 mandates that the Tribunal shall have\r\nall the powers of the civil Court for the purpose of taking evidence\r\non oath and of enforcing the attendance of witnesses and\r\ncompelling the discovery and production of documents. The\r\nTribunal for all the aforesaid purposes would be deemed to be a\r\ncivil Court. Appeal against orders of the Assistant Commissioner is\r\nunder Section 16 of the Act<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. In the teeth of the enactment, its purpose and the right\r\nof the Advocate under Section 30 of the Act, legal assistance by an\r\nadvocate cannot but be given to the applicants before the Assistant\r\nCommissioner, as well as the Deputy Commissioner. The\r\napprehension of the learned Additional Government Advocate that\r\nan entry of an Advocate would delay the proceedings or jeopardize\r\nthe object behind the Act is noted only to be rejected. The\r\npresence of an advocate would neither delay the proceedings nor\r\njeopardize the object of the enactment. In the considered view of\r\nthis Court, it would streamline the proceedings to be in accordance\r\nwith law.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. Swinging back to the facts of the case, the matter is\r\nbefore the Deputy Commissioner in appeal filed against the order passed by the Assistant Commissioner. The Appellate Authority also\r\nhas vast powers to redeem the grievance of the petitioner.\r\nTherefore, the petitioner shall be permitted legal assistance by an\r\nAdvocate before the Deputy Commissioner and the Deputy\r\nCommissioner shall bear in mind the observations made in the\r\ncourse of the order and the judgments rendered by the Apex Court\r\non the issue of redemption of grievance of a senior citizen under\r\nthe Act and the obligation of the children again under the Act and\r\nthen pass appropriate orders as he deems fit, in the facts of the\r\ncase.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 17. Since the proceedings are now concluded before the\r\nAssistant Commissioner, this Court is of the opinion that the matter\r\nneed not be remanded back to the Assistant Commissioner but it\r\nwould be open to the Deputy Commissioner to pass appropriate\r\norders in accordance with law<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Writ Petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '03fe93a8b68ad4f75ee751f75c4f5409.jpeg', '97de16614c7209e7b9102a92887e28fe.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-06', 1, '', '', '2023-07-05 12:19:26', '2023-07-06 03:21:15'),
(3159, 'QchM6j42Ydwv5y4N8lYKrMglS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Vendor can assign the right contained in a sale deed to get the property registered back. Supreme Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Indira Devi Vs Veena Gupta and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 9833 of 2014 decided on 4 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Abhay S. Oak and Justice Rajesh Bindal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The facts of the case available on record are being noticed\r\nhere. Kaleshwar Prasad Singh was inducted as a tenant in the property\r\nin question by late Kishori Lal Sahu who was the exclusive owner\r\nthereof. He along with his son executed a conditional sale deed dated\r\n5.8.1977 in favour of Indira Devi d/o Kaleshwar Prasad Singh. It was\r\nmentioned in the sale deed that vendors were in dire need of money,\r\nhence, with the consent of family members, conditional sale deed was </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">being executed in favour of the vendee for a total sale consideration of\r\n? 5000/-. The condition in sale deed was that in case the vendors return\r\nthe full consideration amount to the vendee by July, 1984, the vendee\r\nwould return the property by means of a registered sale deed at the\r\ncost of the vendors. In case, the vendors fail to pay the consideration\r\nmoney within the stipulated time, the vendee will become exclusive\r\nowner of the property. Till then the vendee would not deal with the\r\nproperty in any manner whatsoever.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. Late Kishori Lal Sahu executed a registered gift deed dated\r\n14.02.1983 in favour of his daughter-in-law, Veena Gupta w/o Gopal\r\nPrasad. The description of the property was detailed out in the Gift\r\nDeed, wherein it was stated that the executant was old and the\r\nbeneficiary was taking care of him, hence the properties are being\r\ngifted to her. Number of properties were gifted. It was mentioned\r\ntherein that the property as mentioned at column no. 5 therein was\r\ntransferred to Indira Devi by way of registered sale deed dated\r\n5.8.1977, which can be purchased back by Veena Gupta from Indira\r\nDevi.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. The vendors were ready and willing to return ? 5000/- to the\r\nvendee to get the sale deed registered back in their name but the\r\nvendee was not agreeing to the same. The civil suit was filed by the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respondent no.1 along with Kishori Lal Sahu (now deceased) in 1983.\r\nThe prayer in the suit was for a direction to the appellant to accept ?\r\n5000/- as consideration money and execute sale deed in favour of\r\nrespondent no.1 in respect of the house as mentioned in the suit. On\r\nfailure, decree be passed directing appellant to register the sale deed\r\nin favour of the respondent no.1, the first plaintiff and as a\r\nconsequence, the plaintiffs be put in possession of the property in\r\nquestion. In the alternative, the prayer was that there is a relationship\r\nof landlord and tenant between Kishori Lal Sahu (non deceased), the\r\nsecond plaintiff and Kaleshwar Prasad Singh, the first defendant. A\r\ndecree of eviction be passed in favour of the plaintiffs on the ground of\r\npersonal necessity and non payment of rent and the possession be got\r\ndelivered. The Trial Court vide judgment dated 27.9.1986 dismissed\r\nthe suit. The judgment and decree of the Trial Court was upheld by the\r\nlower appellate court vide judgment and order dated 27.1.2000.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. The primary issue which requires consideration in the\r\npresent appeal is as to whether the vendor can assign the right\r\ncontained in a sale deed to get the property registered back or the\r\nright being personal cannot be assigned.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. The issue was considered by this Court in T.M.\r\nBalakrishna Mudaliar (supra) wherein reference was made to earlier\r\njudgment of Privy Council in Sakalaguna Nayudu v. Chinna\r\nMunuswami Naykar5\r\n. This Court opined that the benefit of a contract\r\nof repurchase which did not show that it was intended only for the\r\nbenefit of the parties contracting, could be assigned. The option given\r\nto repurchase the property sold would prima facie be assignable. Para\r\n9 of the judgment is extracted below:-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n“9. The Privy Council in Sakalaguna Nayudu v. Chinna\r\nMunuswami Naykar has held that the benefit of a contract\r\nof repurchase which did not show that it was intended only\r\nfor the benefit of the parties contracting, could be assigned\r\nand such contract is enforceable. Beaumont, C.J. in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Vishweshwar Narsabhatta Gaddada v. Durgappa Irappa\r\nBhatkar6 held that both under the common law as well as\r\nunder Section 23(b) of the Specific Relief Act, 1877, an\r\noption given to repurchase the property sold would prima\r\nfacie be assignable, though it might also be so worded as to\r\nshow that it was to be personal to the grantee and not\r\nassignable. On the particular facts of that case, it was held\r\nthat the contract was assignable.\"</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. Again, the issue came up for consideration before this Court\r\nin Shyam Singh case (supra), wherein judgments of the Privy Council\r\nin Sakalaguna Nayudu and this Court in T.M. Balakrishna Mudaliar\r\n(supra) were referred to. It was a case in which a conditional sale deed\r\nwas registered with a right of repurchase. The conditions as mentioned <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in the sale deed in the aforesaid case, which were similar to the case in\r\nhand, are extracted below:-\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“Whereas we, Daryao Singh, son of Hardeva, the first party\r\nand Surajmal, Peetam and Babu, sons of Rati Ram, the\r\nsecond party, Jat, residents of Village Nala, Pargana\r\nKandhala, Tehsil Budhana, District Muzaffarnagar. Party 2\r\nhas executed a sale deed today in favour of Party 1 for a sum\r\nof Rs 4900 in respect of 2 bighas 7 biswas of the land of\r\nKhasra No. 95, bearing a rent of Rs 6.25 annually situate in\r\nKhata No. 331 of Village Nala, Pargana Kandhala, Tehsil\r\nBudhana, District Muzaffarnagar, about which it was agreed\r\nbetween the parties that if the second party paid the entire\r\nconsideration of the sale deed of Rs 4900 to the first party or\r\nto the heirs of the first party within ten years from today then\r\nin that situation the first party will reconvey the aforesaid land\r\nby sale deed in favour of the second party without any\r\nobjection. If for any reason the first party does not execute a\r\nsale deed in favour of the second party, after five years but\r\nwithin ten years from the date of sale deed dated 4-2-1971,\r\nthen the second party will have a right to deposit the entire\r\nconsideration of Rs 4900 in the civil court and get the sale\r\ndeed executed by the court, the first party will have no\r\nobjection. The present agreement will be binding upon the\r\nparties and the heirs of the parties. Therefore, these few\r\ncomments by way of agreement of reconveyance of sale\r\nwithin ten years are being written so that this document may\r\nbe used when necessary. After the limitation of ten years</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the second party will have no right at all to get released the\r\naforesaid from Party 1.”</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. It may be noticed that the earlier two judgments of this\r\nCourt in T.M. Balakrishna (supra) and Habiba Khatoon (supra) were\r\ncited with approval. Right of repurchase was held to be assignable or\r\ntransferable and cannot be treated as personal to the contracting\r\nparties. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">19. To be fair to the appellant, we refer to the judgments cited\r\nby learned counsel for the appellant, which do not support his case. In\r\nBhoju Mandal and Ors’s case (supra), the issue under consideration\r\nwas as to whether the document in question there was a mortgage or a\r\nsale with condition of repurchase. The same was decided on\r\nconstruction of the clauses in the document. It was in that reference\r\nthis Court observed that there is a distinction between the said two\r\nconcepts. The issue can be resolved only by ascertaining the intention\r\nof the parties on a consideration of the contents of the documents. The\r\nspecific issue under consideration therein was not as to whether the\r\nright to repurchase was personal to the vendor or the same could be </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">assigned or not. The judgment of the High Court opining that the\r\ndocument therein was not a mortgage but a sale with a condition of\r\nrepurchase was upheld.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. It can be summed up from the aforesaid judgments that the\r\ncondition of right to repurchase in sale deed will not be personal to the\r\nvendor unless the terms in the documents specifically state so. Such a\r\nright can always be assigned and the contract containing such\r\ncondition shall be enforceable. The only exception being that such a\r\nright should not be personal in nature. The assignment of obligations\r\nin a document is not possible without the consent of the other party.\r\nNo implied prohibition of transfer or assignment can be inferred in a\r\ndocument. The benefit of contract is assignable in cases where it does\r\nnot make any difference to the person on whom the obligations lies, to\r\nwhich of two persons he is to discharge.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. If the facts of the case in hand are considered, we do not find\r\nthat there is any term in the conditional Sale Deed which debars its\r\nassignment to any other person. The clause only mentions regarding\r\nright of repurchase. The option is given to the vendors with the\r\nobligations on the vendee. The right to repurchase in the present case\r\nhas been assigned by Kishori Lal Sahu (now deceased) in favour of\r\nrespondent no.1 who is none else than his daughter-in-law to whom\r\nother properties have also been gifted.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. Even the argument raised by learned counsel for the\r\nappellant that such an assignment of a right cannot be treated as a gift <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as consideration money is involved, is also noticed and rejected for\r\nthe reason that the executor of the Gift Deed i.e Kishori Lal Sahu (now\r\ndeceased) had transferred his right to repurchase the property in\r\nfavour of respondent no.1. That right could always be assigned by him\r\nwith whatever conditions attached to it. Further in the suit filed, he was\r\nalso a plaintiff, who died later.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>24. For the reasons mentioned above, we do not find any error\r\nin the judgment of the High Court. The present appeal is accordingly\r\ndismissed. There is no order as to costs. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b1e6b7423db3dbd3142fd34c34b41109.jpeg', '70b9fee07b1eb9e8e9a85b65b940d503.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-06', 1, '', '', '2023-07-05 11:36:15', '2023-07-06 06:26:39');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3160, 'nQzpLIj6I5y6RosCUNKi8dth9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cross objections under Order 41 Rule 22 of the CPC, have all the trappings of a regular appeal and must be considered in full by the court adjudicating upon the same. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Dheeraj Singh Vs Greater Noida Industrial Development Authority and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4172 of 2023 decided on 4 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna Murari and Justice Bela M Trivedi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The relevant facts necessary for the adjudication of the present\r\nappeals, for the sake of convenience, the Respondent State Government of\r\nUP had issued a notification under Section 4(1) read with Section 17 of the\r\nLand Acquisition Act, 1894 on 30.04.1993 whereby a large tract of land,\r\nincluding the land of the appellants herein was acquired for the purpose of\r\nGreater Noida. The declaration of the said lands under Section 6 of the Act\r\nwas issued on 25.06.1993, and the possession of the aforesaid lands was\r\ntaken on different dates between 13.08.1993 and 31.05.1994</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Aggrieved by the aforesaid award, the appellants herein sought\r\nreference under Section 18 of the Land Acquisition Act and claimed\r\ncompensation at the rate of Rs. 350/- to Rs. 500/- per square yard on\r\ngrounds of parity to other lands acquired in the vicinity. The Learned\r\nDistrict Judge, in the aforesaid reference, vide its judgment dated\r\n09.05.2002, determined the market value of the said lands at Rs. 400/-, but\r\ndeducted 1/3rd amount for development charge, and fixed the market value\r\nat Rs. 267/- per square yard and granted Rs. 80/- as solatium per square\r\nyard with interest at the rate of 9% and 15% per annum, and an additional\r\ncompensation at the rate of 12% per annum on the market value with\r\neffect from the date of transfer of possession.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. As against this, the Respondent Greater Noida filed an appeal in the\r\nHigh Court, to which the appellants herein filed their cross appeals seeking\r\na further enhancement.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Subsequently, the High Court, vide order and judgment dated\r\n04.01.2017, confirmed the compensation determined by the Learned\r\nDistrict Judge. It is the contention of the appellants herein that the High <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court, while passing its judgment, did not consider the cross objections\r\nfiled by them.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. For the sake of clarity, it is necessary to mention that the acquisition\r\nof the land itself is not being challenged by way of the present appeals, and\r\nthe limited challenge is only confined to the extent of the quantum of\r\ncompensation granted for the acquisition of the said lands.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. To appreciate the issue at hand and to come to a correct conclusion,\r\nwe must analyze the impugned order passed by the High Court, to see\r\nwhether there has been any application of mind by the High Court on the\r\ncross objections filed by the appellants herein, and if such consideration\r\nhas not been taken into account, then to what extent can this Court grant\r\nrelief.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Order 41 Rule 22, which is the governing law in the present case,\r\nelaborates on the remedies available to a respondent in the court of first\r\nappeal where an original decree has been challenged. An analysis of the\r\nsaid provision, in our opinion, is essential to adjudicate upon the present\r\ncase.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. In cases where the decree passed by the court of first instance is in\r\nfavor of the respondent in whole, in such circumstance, no remedy exists\r\nin favour of the respondent to appeal such decree, since no right to appeal\r\ncan be vested onto a party, which is successful.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n14. However, in cases where the decree given by the court of first\r\ninstance, is partly in favour of the respondent, but is also partly against the\r\nrespondent, two remedies within Order 41 Rule 22 remain with the\r\nrespondent, which are (i) To file their cross objections and, (ii) To support\r\nthe decree in whole. A third remedy in law also exists, which is the right to\r\nfile a cross appeal, which will also be discussed in brief<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. In the present case at hand, the appellants herein, in the court of first\r\nappeal filed a cross objection. It is the claim of the appellants herein that\r\nhis cross objection was not considered by the High Court while passing the\r\nimpugned judgment. At this stage, it must be noted that while cross\r\nobjections, unlike a regular appeal, are filed within an already existing\r\nappeal, however, as per Order 41 Rule 22 of the CPC, cross objections\r\nhave all the trappings of a regular appeal, and therefore, must be\r\nconsidered in full by the court adjudicating upon the same.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. In the case of Santosh Hazari Vs. Purushottam Tiwari (Dead) by\r\n LRs.1\r\n , this Court held that the court of appeal has a duty to apply its mind\r\nto all issues raised before it, and to discharge such duty, it must also record\r\nits findings against all such issues raised. For the sake of convenience, the\r\nrelevant paragraph of the said judgment is being extracted herein:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\"The Appellate Court has jurisdiction to reverse or\r\naffirm the findings of the trial court. First appeal is a\r\nvaluable right of the parties and unless restricted by\r\nlaw. the whole case is therein open for rehearing both\r\non questions of fact and law. The judgment of the\r\nAppellate Court must, therefore, reflect its conscious\r\napplication of mind, and record findings supported by\r\nreasons, on all the issues arising along with the\r\ncontentions put forth, and pressed by the parties for\r\ndecision of the Appellate Court.<br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>While reversing a finding of fact the Appellate Court\r\nmust come into close quarters with the reasoning <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">assigned by the trial court and then assign its own\r\nreasons for arriving at a different finding. This would\r\nsatisfy the Court hearing a further appeal that the First\r\nAppellate Court had discharged the duty expected of it.\"</span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. In the case of Madhukar and Ors. Vs. Sangram and Ors.2\r\n, this\r\nCourt, while reiterating the principles laid down in the Santosh Hazari\r\nJudgment (Supra), observed that the court of first appeal has a duty to\r\nrecord its findings qua all the issues raised before it, and in cases where the\r\nHigh Court fails to do the same, the matter must be remanded to the same\r\ncourt again for fresh adjudication.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. Further, in the case of Jitendra Prasad Nayak Vs. Anant kumar\r\n Sah and Anr.3\r\n , this Court, in an identical circumstance wherein the cross\r\nobjections filed by the appellant therein was not considered by the court of\r\nfirst appeal, held that remanded the case back to the High Court and\r\nobserved as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\"....Admittedly, a cross-objection was filed by the\r\nappellant-landlord against the rejection by the first\r\nappellate court of the existence of one of the two\r\ngrounds of eviction. However, while deciding the appeal\r\nof the respondent-tenant in his favour against the\r\ndecision of the first appellate court on the other ground,\r\nthe existance of the cross objection appears to have been\r\nmissed by the High Court with the result that there is no\r\ndecision given on the cross objection. The impugned <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">judgment cannot, therefore, be sustained inter alia for\r\nthis reason. We are also of the opinion that the question\r\nrelating to existence of the ground of bona fide need\r\nwhich has been decided in favour of the tenant requires\r\na fresh determination by the High Court along with the\r\nother point relating to default in payment of rent which\r\nwas the subject mater of cross-objection.......\"</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. The abovementioned discussions and judgments, when\r\ncontextualized to the present case, would show that the High Court was\r\nunder an obligation to consider the cross objections filed by the Appellants\r\nherein. Since such an obligation was not discharged while passing the\r\njudgment in appeal, we are of the considered opinion that the matter is fit\r\nfor remand to the High Court for fresh adjudication on the grounds raised\r\nin the cross objections during appeal by the appellants herein. Accordingly,\r\nthe present appeals are therefore allowed to such an extent.</b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f16934d73bb437d983079cb114598f69.jpeg', 'a859026698277d0a83426d4da3331dbd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-06', 1, '', '', '2023-07-05 11:59:10', '2023-07-06 10:28:12'),
(3161, 'guHwrCwsRPd0Moq21Ydldsbnb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Marriage Act. Mere inability of the wife to obey decree for restitution of conjugal rights is not a ground to dismiss her petition for divorce. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Pradnya Vs Abhijit.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Miscellaneous First Appeal 103166 of 2022 decided on 30 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S G Pandit and Justice Vijaykumar A Patil.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This appeal is filed under Section 28(1) of Hindu Marriage Act, 1955 (for short, \'the Act\') against the judgment dated 07.07.2022 passed by the Addl. Senior Civil Judge, Karwar in MC.No.16/2020 by which the petition filed by the appellant-wife seeking dissolution of marriage on the ground of cruelty was dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The family Court has recorded the finding that despite the judgment in M.C.No.280/2019, the appellant has failed to join the company of the respondent and proceeded to dismiss the petition filed by the appellant under Section 13(1)(ia) of the Act without adverting to the allegations of cruelty by the appellant.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. In this context, it will be useful to refer the decision of Hon\'ble Supreme Court in the case of Muddasani Venkata Narsaiah (Dead) Through Legal Representatives vs. Muddasani Sarojana1 , wherein paragraph No.15 reads as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>\"15. Moreover, there was no effective crossexamination made on the plaintiff’s witnesses with respect to factum of execution of sale deed, PW.1 and PW-2 have not been cross examined as to factum of execution of sale deed. The cross-examination is a matter of substance not of procedure one is required to put one’s own version in cross-examination of opponent. The effect of non cross-examination is that the statement of witness has not been disputed. The effect of not cross-examining the witnesses has been considered by this Court in Bhoju Mandal. v. Debnath Bhagat AIR 1963 SC 1906. This Court repelled a submission on the ground that same was not put either to the witnesses or suggested before the courts below. Party is required to put his version to the witness. If no such questions are put the court would presume that the witness account <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">has been accepted as held in Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. & Anr. AIR 1958 P & H 440.\"</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. The Hon\'ble Supreme Court in the case of Vidhyadhar vs. Manikrao and another2 held at paragraph No.17 as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>17. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh\'s case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Ors. , drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Keeping in mind the above settled legal position, in the instant case, the respondent-husband has failed to adduce evidence; in the absence of any contra evidence of respondent, the statement of witness on record to be taken as true, which has not been disputed by the respondent.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. The family Court has committed an error in recording the finding that despite the judgment in M.C.No.280/2019, the appellant has failed to join matrimonial home. The family Court has not considered the case of the appellant on its merits for dissolution of marriage on the ground of cruelty. The family Court has committed an error in recording the finding that the appellant has approached this Court in MFA No.101311/2020 challenging the order passed in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">M.C.No.280/2019, hence, considering the petition for dissolution of marriage does not arise and the petition is not maintainable under law. The aforesaid finding is erroneous for the reason that the respondent has filed petition under Section 9 of the Act for restitution of conjugal rights and the said petition was disposed of placing the appellant exparte. In our considered view, the family Court erred in not considering the matter on its merits as the appellant has specifically pleaded the grounds of cruelty and the same are proved in evidence. The allegations of cruelty pleaded and proved are not controverted by the respondent.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. The allegations of cruelty referred supra are of serious in nature and consistent from the inception of marriage till the appellant started living with her parents. In our considered view, the appellant has proved the grounds of cruelty to dissolve the marriage.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. For the aforementioned reasons, the appeal is allowed and the impugned judgment and decree dated 07.07.2022 passed by the Addl. Senior Civil Judge, Karwar in M.C.No.16/2020 is set-aside and the marriage between the parties is dissolved by decree of divorce on the ground of cruelty as prescribed under Section 13(1)(ia) of the Hindu Marriage Act, 1955.</b></span></p>', 'e8f4b23ef7dd29d5dc593e151e06e4ad.jpeg', '154844bca824b01af4054ba9ad7daa10.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-06', 1, '', '', '2023-07-05 12:00:09', '2023-07-06 12:22:14');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3163, '2joJRVp9GmYaqyEqLcVf5Yh4u', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transfer of immovable property implies and includes in it transfer of structure put up thereupon though not specifically mentioned in the deed of transfer. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jambulingayya Hiremath Thr LRS and others Vs Akkamahadevi and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R.S.A 200221 of 2015 decided on 28 February 2020.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.B. Prabhakara Sastry.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The summary of the case of the plaintiff in O.S.No.49/2003 is that, the plaintiff, defendants No.3 and 4 and late Veeresh Hiremath, the husband of defendant No.6 are the sons of defendant No.1 - Sri.Jambulingayya Hiremath. The defendant No.5 is the daughter of defendant No.1; and defendant No.2 – Hemavathi is the wife of defendant No.1. Defendant No.6 is the daughter-in-law of defendant No.1, since she is the wife of said late Veeresh Hiremath. The plaintiff and defendants No.1 to 6 are members of the Hindu Joint Family. The defendant No.5 since married after the commencement of amendment to the Hindu Succession Act, 1991, she is also impleaded as a member of the joint family. The defendant No.1 owns and possesses the suit schedule property which includes agricultural lands in Survey No.350, measuring 11 acres, Survey No.856, measuring 17 Acres 18 Guntas, both situated in the limits of Anwari Village of Lingasugur Taluk and a house property bearing Municipal No.8-11-181/800 situated at NGO’s Colony, Vidyanagar, Raichur. The defendant No.1 was the Kartha of the said Hindu Joint Family. The said plot which is part of the Hindu property was purchased by defendant No.1 under a registered sale Deed dated 13-05-1987. Thereafter, he constructed a building on the said plot No.800. Except defendants No.3 and 5, all other parties to the suit are in possession and enjoyment of the suit house property. Since the defendant No.3 is working as a Government servant at Arkonam (Tamil Nadu), he resides at that place of work.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>It is further the case of the plaintiffs in the said suit (O.S.No.49/2003) that, defendant No.1 – Sri. Jambulingayya Hiremath had executed a registered Gift Deed No.1471/99-2000 dated 09-09-1999, in favour of his eldest son – Sri. Veeresh Hiremath (since deceased) in respect of plot No.800 unauthorisedly, having no right or authority and behind the back of the plaintiff and defendants No.2 to 5. The said Gift Deed is ab initio void and illegal since on the date of execution of the Gift Deed, the said plot No.800 was not in existence as a plot, since construction in the form of a building had already come up on it. Therefore, the said Gift Deed being ineffective, is not binding on the plaintiff.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The plaintiff in O.S.No.49/2003 has further contended that, his suit is for partial partition only with regard to the suit house, reserving his right to the other joint family properties, since the rights and interest of brothers of defendant No.1 were involved. The plaintiff in O.S.No.49/2003 further contended that defendant No.6 therein filed an application for mutation of suit house in her name before the City Municipal Council, Raichur (“CMC, Raichur” for short). The plaintiff filed his objection to the same. However, his objection was not considered by the CMC, Raichur. Therefore, the plaintiff, having no other efficacious remedy, has filed the suit for declaration to the effect that the Gift Deed No.1471/99-2000 dated 09-09-1999 is unauthorised, illegal, void and ineffective against the plaintiff. The plaintiff also claimed that he is entitled for 1/7th share in the suit house property, which consists of ground, first and second floor.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>On 25-08-2015, both the Regular Second Appeals were ordered to be taken up together. The matter was admitted on 15-12-2018 and following substantial questions of law were framed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“1) Whether the lower appellate Court is justified in rejecting the application for amendment of written statement and the application for production of additional documents without considering the relevance of the documents and the proposed amendment?</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>2)<span style=\"white-space:pre\">	</span>Whether the Courts below are justified in not holding that the gift deed is void ab initio since the gift is in respect of an open land, though there existed a two storied building as on the date of the deed? </i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i><br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>3)<span style=\"white-space:pre\">	</span>Whether the Court below is right in decreeing the suit in O.S.No.31/2006 without production of revocation deed? </i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i><br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>4)<span style=\"white-space:pre\">	</span>Whether gift deed can be revoked unilaterally in the facts and circumstances of case?”<br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>During the pendency of these appeals, respondent No.2 in RSA.No.200221/2015 has filed an application IA.No.3/2019, under Section 151 read with Order XLI Rule 27 of Code of Civil Procedure, 1973 (hereinafter for brevity referred to as `CPC\'), seeking permission to produce a certified copy of registered Revocation Deed. The said application is still pending. As such, in addition to the above mentioned four substantial questions of law, one more point that arise for consideration in these appeals is : </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i><br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>Whether IA.No.3/2019 deserved to be allowed?</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>Respondent No.4 in R.A.No.58/2010, who originally was defendant No.4 in O.S.No.49/2003, had filed two interlocutory applications in R.A.No.58/2020. The first interlocutory application is IA.No.IV filed under Order VI Rule 17 read with Section 151 of CPC, seeking permission to amend his written statement by way of addition of Paragraph Nos.4 and 5 in it. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In the proposed amendment, the applicant intended to amend his written statement contending that Gift Deed in favour of deceased Veeresh, who is the husband of defendant No.6, is a sham document and not intended to gift away the suit property, hence, the said document cannot be taken into consideration. He has further stated that in the year 1993, the deceased Veeresh intended to establish an Electrical Industry in Raichur, for which, he constituted a Partnership Firm along with one Raghavendra V. Kantanavar and the said Firm was named as M/s.Sark Engineers, which was duly registered with the Registrar of Firms at Raichur on 31.7.1993. The said Firm was allotted a Plot No.73(A), measuring 3,164 Sq.Mtrs. from Karnataka Industrial Areas & Development Board (KIADB), Bengaluru. The possession of the said plot was also handed over to the Firm. The Lease-cum-Sale Agreement was also executed by KIADB in favour of the Firm. The deceased Veeresh intended to start an Electrical Goods Manufacturing Unit in the said plot allotted in the Industrial Area, Raichur. For this purpose, he was in need of finance. Therefore, the alleged Gift Deed came into existence only for the purpose of facilitating deceased Veeresh to raise loan on the property comprised in the Gift Deed. Neither the deceased Veeresh nor  deceased Jambulingayya intended to raise the loan on the said property for the construction of the house.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>The very same applicant (defendant No.4) in his another interlocutory application i.e., IA.V filed under Order XLI Rule 27 read with Section 151 of CPC, has sought for permission to file certain documents and to lead evidence for marking those documents. He produced a list of documents along with the said interlocutory application which documents were photocopies of registration of Firm M/s.Sark Engineers, letter addressed by the Assistant Engineer, KIADB, Raichur to the said Firm, photocopy of Possession Certificate, photocopy of Form No.A, issued by Registrar of Firms, Raichur, certified copy of Form No.10, issued by Registrar of Firms, certified copy of Partnership Deed and a certified copy of Lease-cum-Sale Agreement dated 27.4.1995. In the affidavit accompanying the application, the applicant contended that, to substantiate his claim in the amended written statement, he has to file the documents as mentioned in the list annexed to the application. He has obtained those documents recently and stated that those documents go to the root of the dispute.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>Respondent Nos.6 to 8 in R.A.No.58/2010 have filed their statement of objections to IA.V, where they denied that the Gift Deed was a sham transaction and that to felicitate deceased Veeresh to avail loan, the said Gift Deed was executed. On the other hand, they stated that the applicant who was respondent No.4 was himself one of the attesting witness to the Gift Deed. The said respondent had filed his short written statement by admitting the entire case of the plaintiff and also written statement of plaintiff is filed in reply to the counter claim of respondent Nos.6 to 8. Thus, respondent No.4 having admitted the entire case of the plaintiff, cannot turn round and seek amendment of the written statement nor produce the documents in question. They also stated that virtually the dispute is between plaintiff and defendant Nos.6 to 8. As such, the defendant Nos.1 and 5 cannot seek amendment of the written statement nor produce the documents shown in the list annexed to IA.No.V. They further stated that the act of respondent No.4/applicant   enables him to make out a new case at the appellate stage by producing documents and seeking amendment to the written statement. They also stated that ingredients of Order XLI Rule 27 of CPC have not been fulfilled by the applicant.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>31.<span style=\"white-space:pre\">	</span>Though the learned counsel for the appellants submitted that the gift becomes void because of non-mentioning of the alleged structure upon it, however, he did not substantiate his argument by citing any provision of law or by producing any material in his support. On the other hand, learned counsel for respondent Nos.1 and 3 drawing the attention of this Court to Section 3(26) of General Clauses Act, 1897 and Sections 3 and 8 of Transfer of Property Act, 1882, (hereinafter for brevity referred to as `T.P.Act’), submitted that transfer of an immovable property implies and includes in it the transfer of the structure put up thereupon.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 32.<span style=\"white-space:pre\">	</span>Admittedly, the gift made by Jambulingayya in favour of his eldest son Veeresh under registered Gift Deed dated 9.9.1999 is with respect to an immovable property which is described as Plot No.800, bearing Municipal No.8-11-181/800, measuring 18 x 12 mtrs. situated at N.G.O’s Colony (Vidya Nagar), in Survey Nos.886 and 887 on Bolmandoddi Road, Raichur. Thus, the gift is of an immovable property. Section 3 of T.P.Act defines “immovable property” stating that it does not include standing timber, growing crops or grass.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Section 8 of T.P.Act speaks about the “Operation of transfer” and it says that, unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. It further says, such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth. (Emphasis supplied).</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Section 3 of the same Act also defines “attached to the earth” stating that, it means (a) rooted in the earth, as in the case of trees and shrubs; (b) imbedded in the earth, as in the case of walls or buildings; or (c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached.  (Emphasis supplied).<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Section 3 (26) of the General Clauses Act, 1897, defines “immovable property” as, it shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>33.<span style=\"white-space:pre\">	</span>Our Hon’ble Apex Court in Suresh Chand –vs- Kundan (Dead) by LRs. and others, reported in [(2001) 10 SCC 221], was pleased to observe with respect to Sections 3(a) & 8 and 54 of T.P.Act and Section 3(2) of General Clauses Act that, where land owner agrees to sell his right, title and interest in the land, such sale would include the trees standing thereon in absence of any express or implied agreement to the contrary. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The above provisions of law, as well judgment of Hon’ble Apex Court in Suresh Chand (supra), makes it very clear that where the transferor intends to transfer an immovable property to the transferee, unless specifically the right or liberty is reserved by the transferor, all those things which are attached to the earth in the said transferred immovable property passes to the transferee.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>34.<span style=\"white-space:pre\">	</span>In the instant case, a careful study of the Gift Deed at Ex.D-1/Ex.P-4 shows that, no where the donor Sri Jambulingayya had either mentioned about the existence of any building structure on the property gifted to his son Veeresh or had reserved his right over the alleged structure on the transferred plot, which structure, according to the plaintiffs in O.S.No.49/2003, was said to be in existence. As such, even after assuming that there was some structure as on the date when the gift was made by the donor in favour of the donee of the suit schedule `A’ property, still, the transfer includes along with the plot, the structure built thereupon also.   Therefore, the argument of the appellants that the gift is void, ab initio since the gift is in respect of an open land though there existed a two-storied building as on the date of Deed, is not acceptable.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Since both the Courts below have held that Gift Deed is not to be considered as void, ab initio, the said finding given by the trial Court, as well the first Appellate Court are justified. Hence, the second substantial question of law is answered in the affirmative.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>37... On the other hand, either remanding the matter to the first Appellate Court to dispose of pending interlocutory application filed under Order XLI Rule 27 of CPC by the applicants therein or allow IA.No.3/2019, pending in this appeal (RSA.No. 200221/2015) would further procrastinate the matter, which Original Suit is fourteen years old already. Further it serves no purpose since interest of neither of the parties has been affected by non-production of such Revocation Deed. Therefore, confining to the said facts and circumstances of this case, I hold that the trial Court was not wrong in decreeing the suit in O.S.No.31/2006 without the production of the Revocation Deed. Simultaneously, IA.No.3/2019 filed in RSA.No.200221/2015 also does not require to be allowed. Accordingly, I answer third substantial question of law in the affirmative.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>38.<span style=\"white-space:pre\">	</span>In the instant case, the registered Gift Deed dated<span style=\"white-space:pre\">	</span>9.9.1999<span style=\"white-space:pre\">	</span>was<span style=\"white-space:pre\">	</span>revoked by the donor Sri Jambulingayya through registered Revocation Deed dated 31.3.2004. Admittedly, the said revocation was an unilateral act of the donor Jambulingayya, who is the father of the donee. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>39.<span style=\"white-space:pre\">	</span>Section 126 of T.P.Act speaks about when the gift may be suspended or revoked. It reads as below:</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i><br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i> “ Section 126 : When gift may be suspended or revoked.-The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.<br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>Save as aforesaid, a gift cannot be revoked. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.”</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>41.<span style=\"white-space:pre\">	</span>In Narayanamma –vs- Papanna, reported in ILR 1987 KAR 3892, a Co-ordinate Bench of this Court at Paragraph-12 of its judgment was pleased to observe as below :<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>\"A contract is normally rescinded or avoided, as per Sections 19 and 19 A of the Contract Act. When consent to an agreement is caused by coercion, fraud, misrepresentation or undue influence, at the instance of the party whose consent is so obtained. Except on the aforesaid grounds, a gift cannot be rescinded or revoked on any other ground. This position is specifically made clear by stating in Section 126 of the Act “Save as aforesaid, a gift cannot be revoked.” However it may also be noticed that in the event the case falls under Section 20 of the Contract Act, the gift will be void ab initio and in such a situation, the question of avoiding it does not arise. There is no recital contained in the gift deed as to happening of any specific event independent of the will of the donor. There is also no recital in the gift deed enabling the donor to revoke it on the failure of the donee to maintain the donor or on the happening of any other event. A gift deed cannot be revoked save as provided in Section 126 of the Act. The circumstances under which a gift can be revoked or rescinded are already pointed out.”<br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>42.<span style=\"white-space:pre\">	</span>In the instant case, a perusal of the original Gift Deed which is at Ex.D-1 would go to show that the said Gift Deed was a simple Gift Deed, where the donor, as a father, has gifted an immovable property in favour of the donee, who is his eldest son out of natural love and affection. Except stating that the gift is made out of natural love and affection, no other conditions are attached to the said gift in any manner. The donee has accepted the said gift by specifically mentioning that he has accepted the said gift and putting his signature which is at Ex.D-1(b). Therefore, it is a simple concluded gift which can only be revoked under any of the circumstances prevailing under Section 126 of T.P.Act. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>43.<span style=\"white-space:pre\">	</span>In the instant case, there is no evidence to show that the donor and donee had agreed that on the happening of any specified event, independent of the will of the donor, the gift should be revoked. It is also not the case that the gift was vitiated or caused by fraud, coercion, misrepresentation or undue influence as per Section 19 and Section 19(A) of Indian Contract Act, 1872. It is not even the case of the parties who are challenging the gift that the said gift was hit by Section 20 of Indian Contract Act. Therefore, the unilateral revocation of the gift which falls out of the ambit of Section 126 of T.P.Act, as in the instant case, is not a valid revocation. Therefore, the fourth substantial question of law is answered holding that the Gift Deed cannot be revoked unilaterally in the instant case.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> IA.No.3/2019 filed in RSA.No.200221/2015 is dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e9a2cc46a2d55a3057201dc11b0bd888.jpeg', 'cd3bd49111bdb67fa5222ee847827a8e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-06', 1, '', '', '2023-07-05 12:54:09', '2023-07-06 08:17:09'),
(3164, 'qcSzdMVSfPeColysd2eTWlwq4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'High Court under Article 226 cannot re-appreciate evidence and arrival of finding of facts, unless the authority exceeded its jurisdiction or the findings are patently perverse. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Hari Prakash Shukla and others Vs The State of Uttar Pradesh and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 9697-9698 of 2014 decided on 5 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna Murari and Justice Ahsanuddin Amanullah.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The appellants herein are the bhoomidars of the subject land and are in\r\npossession of the same. The said lands, as per the appellants, is being\r\nused by them for agricultural purposes since a permanent lease was\r\nexecuted in their favour by the then zamindar in the year 1952.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n4. It is to be noted that part of the subject land, including the land in\r\npossession of the Appellants, was declared as reserved forest, and the\r\nother part of the said land was subject to a notification under Section 4\r\nof the Forest Act for declaration as reserved forest.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Such a declaration of the said land initiated an eviction drive of the\r\nlocal inhabitants, and against this, on the basis of a letter received from\r\nBanwasi Seva Ashram, a writ petition was instituted in this Court\r\nregarding the claim of the local inhabitants.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. At the outset, for the adjudication of the present appeals, it is our\r\nconsidered opinion that following two issues arise for our\r\nconsideration.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>I. Whether the relief granted in the Judgment of Banwasi Seva\r\n Ashram vs State Of Uttar Pradesh1\r\nis only applicable to SC/ST/\r\nother backward communities?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>II. Whether the High Court, while exercising its jurisdiction under\r\nArticle 226 of the Constitution of India, could have re-appreciated\r\nthe evidence adduced to come to its findings?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ISSUE I- Whether the relief granted in the Judgement of Banwasi Seva\r\n Ashram vs State Of Uttar Pradesh2\r\n is only applicable to SC/ST/ other\r\nbackward communities?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. In the case of Banwasi Sewa Ashram (Supra), wherein certain\r\nAdivasi communities inhabiting the situate land were being evicted\r\nfrom their homes on grounds of the said land being subject to a Section\r\n4 notification under the Forest Act, this Court held that the said\r\ninhabitants had a right for their claims to be heard by the Forest Officer,\r\nand it was the forest officer, who had the power to go into the merits of\r\nthe case and decide the claims of the inhabitants.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. The abovementioned Banwasi Sewa Judgment (Supra), when read\r\ninto detail, would show that it confers upon the inhabitants of the\r\nsubject land, only a procedural right to be heard by the appropriate\r\nauthority, and not a substantive right of possession/inhabitation of the\r\nland. In simpler terms, this would mean that this Court, while delivering\r\nthe said judgment, did not go into the merits of each claim but only\r\nprovided an appropriate forum for the claims to be heard.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. It must be noted that forest communities do not only consist of\r\npeople from recognized Adivasi and other backward communities, but\r\nalso other groups residing in the said land. These other groups, who do\r\nnot get recognition under the law as a forest dwelling community due to\r\nseveral socio-political and economic reasons, are also an integral part of\r\nthe said forest communities and are essential to their functioning.\r\nFurther, there can also be several instances of people ancestrally being\r\nforest dwellers, however, due to lack of documentation, are not able to\r\nprove the same.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n21. While we are aware of the fact that the Appellants herein are not\r\nfrom a backward community and nor do they claim to be so, however,\r\nthe abovementioned Banwasi Judgment (Supra), if interpreted in a\r\nnarrow manner only to benefit certain recognized forest communities,\r\nwould cause a great deal of harm to multiple other communities. At the\r\nsake of repetition, it must be noted that the Banwasi Judgment\r\n(Supra), only grants a right to be heard by a competent authority, and if <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">such authority rejects a claim, then the said claim cannot exist against\r\nthe situate land.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>22. This right to be heard, in our opinion, must be granted to all\r\nclaiming possession of the subject land, and the substantial right of\r\npossession can be granted or denied during the said hearing, by the\r\ncompetent authority, that is to say, the right to be heard must be enjoyed\r\nby all, and the right to possess, must be enjoyed by those who have a\r\nlegitimate claim.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>23. Further, the right to enjoy possession of any land notified under\r\nSection 4 of the Forest Act is not only limited to Adivasi communities\r\nand other forest dwelling communities, but is also based on proof of\r\nresidence, date of original possession, etc. If the right to inhabit the said\r\nlands is not restricted only to certain communities, how can the right to\r\nbe heard on such claims be restricted to the same.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">24. Therefore, in light of the abovementioned discussions, we hold Issue\r\nNo. I in favor of the Appellants.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ISSUE-II Whether the High Court, while exercising its jurisdiction under\r\nArticle 226 of the Constitution of India, could have re-appreciated\r\nevidence to come to its findings?<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. This Court, in a catena of judgments has held that the High Court,\r\nwhile exercising its inherent powers under 226 of the Constitution of\r\nIndia, cannot re-appreciate evidence and arrival of finding of facts,\r\nunless the authority which passed the original order did so in excess of\r\nits jurisdiction, or if the findings were patently perverse.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. In the case of BK Muniraju Vs. State Of Karnataka3\r\n, this Court,\r\nwhile expounding on the powers of the High Court under Article 226 of\r\nthe Constitution of India, held that the same cannot be used to reappreciate evidence unless an error of fact appraised by the lower court\r\nis manifest and such an error has caused grave injustice.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. Further, in the case of Krishnanand Vs. Director of Consolidation4\r\n ,\r\nthis Court, in a similar fact circumstance wherein concurrent findings of\r\nthe lower courts were dismissed by the High Court while exercising its\r\nwrit jurisdiction, held that re-appreciation of evidence under Article 226\r\ncan only be done in cases where the original order by the lower court\r\nwas passed in excess of its jurisdiction or if the findings of the lower\r\ncourts were patently perverse.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. It is our opinion that as far as the present case is concerned, the\r\nconcurrent findings of the lower courts are neither perverse, nor the said\r\ncourts have over stepped their jurisdiction. In such a scenario, wherein\r\nneither of the conditions were satisfied, the High Court could not have\r\nre-appreciated the evidence in writ jurisdiction and come to a different\r\nconclusion.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>31. In light of the abovementioned discussions, we hold Issue No. II in\r\nfavour of the Appellants herein.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n32. In the present case at hand, both the issues framed by us has been\r\nanswered in favour of the Appellants herein, that is to say, the remedy\r\ngranted under the Banwasi Sewa judgment (supra) is available to the\r\nappellants herein, and the reappreciation of evidence done by the High <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court while exercising its inherent powers under Article 226, in our\r\nopinion, is bad in law and is liable to be struck down.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. In light of such observations, the impugned order and judgment\r\npassed by High Court of Allahabad dated 04.02.2013 is not liable to be\r\nsustained and is thereby set aside. The orders passed by the Forest\r\nSettlement Officer and Additional District Judge are hereby confirmed.\r\nThe appeals, accordingly, stand allowed and the captioned contempt\r\npetitions are dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd8ecff25cc65555df6d3161df19596f5.jpeg', 'b3e17acd4846644f1847b9dbdd03e660.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-07', 1, '', '', '2023-07-06 13:00:47', '2023-07-07 12:26:53');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3165, 'qd21ORENJGXOTAxJjv7X8inh9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bombay Tenancy and Agricultural Lands Act, 1948. In a case of surrender of land by tenant, procedure of taking possession under Section 29 of the Act does not apply. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vijaya and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 61043 of 2010 decided on 22 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. Facts leading to filing of this writ petition\r\nnarrated briefly are, the land bearing Sy.No.143\r\nmeasuring 4 acres 38 guntas situated at Sirsi Village, Sirsi\r\nTaluka, Uttara Kannada District originally belonged to one\r\nParashuram Bhavaneppa Tirumale. The father of\r\ncontesting private respondents herein namely deceased\r\nKeriya Subray Sirsikar, who was the tenant in respect of\r\nthe aforesaid land appears to have surrendered an extent\r\nof 1 acre 26 guntas in the said land bearing Sy.No.143 in\r\nfavour of the landlord. An order came to be passed by the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Tahsildar, Sirsi to the said effect in the year 1951,\r\npursuant to which, necessary entries have been made in\r\nthe revenue records of the land bearing Sy.No.143, which\r\nis evident from Annexures-A & B and the remaining extent\r\nof land measuring 3 acre 12 guntas in Sy.No.143\r\ncontinued in possession and cultivation of the original\r\ntenant Keriya Subray Sirsikar.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. In the year 1954, considering the surrender of\r\nland to the extent of 1 acre 26 guntas in Sy.No.143, the\r\nsurvey number of the land was subdivided. Accordingly,\r\nthe mutation was certified. The land in possession of the\r\ntenant measuring 3 acres 12 guntas was assigned\r\nSy.No.143/1, while the land which was surrendered by the\r\ntenant in favour of landlord measuring 1 acre 26 guntas\r\nwas assigned Sy.No.143/2. Thereafter the name of the\r\nlandlord was reflected in the revenue records of the land in\r\nquestion bearing Sy.No.143/2. On 20.12.1957, there was\r\na partition in the family of the landlord and the land in\r\nquestion was allotted to Parashuram Bhavaneppa</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Tirumale, who is the father of original petitioner herein.\r\nPursuant to the said partition, the name of the petitioners\'\r\nfather Parashuram Bhavaneppa Tirumale was entered in\r\nthe revenue records, as could be seen from Annexure-G,\r\nfrom the year 1958 onwards and the same continued\r\nthereafter till his death.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. After the death of Parashuram Bhavaneppa\r\nTirumale, the name of his legal representatives were\r\nmutated in the revenue records of the land in question and\r\nthe same continued till date. When the matter stood thus,\r\nafter coming into force of the Act No.1 of 1974, the\r\noriginal tenant Keriya Subray Sirsikar had filed Form No.7\r\nclaiming occupancy rights of the land bearing Sy.No.143/1\r\nmeasuring 3 acres 12 guntas and land bearing\r\nSy.No.143/2 measuring 1 acre 26 guntas. The Land\r\nTribunal initially by order dated 22.05.1976 had granted\r\nthe occupancy rights of both items of the land in favour of\r\nthe claimant. The said order was questioned by the\r\npetitioners\' father insofar as it relates to granting <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">occupancy rights of the land in question before this Court\r\nin W.P. N.5633/1976, which was allowed by this Court on\r\n21.02.1983 and the matter was remitted to the Tribunal\r\nwith a specific direction to consider the presumption\r\narising in favour of the petitioner\'s father having regard to\r\nthe entries in the revenue records of the land in question.\r\nThereafter, it appears that the legal heirs of the original\r\ntenant had filed a memo before the Tribunal withdrawing\r\nForm No.7 filed by them in respect of the land in question.\r\nOn the basis of the same, the Tribunal proceeded to\r\ndismiss the claim made in respect of the land in question\r\nand according had passed an order on 13.09.1994.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. The land bearing Sy. No.143 totally measures 4\r\nacres 38 guntas. The material on record more so <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Annexures - A and B would go to show that out of 4 acres\r\n38 guntas of land, the original tenant had surrendered 1\r\nacre 26 of land in favour of the landlord and considering\r\nthe said surrender, orders were passed by the Tahasildar,\r\nas reflected in the mutation records available at Annexures\r\n- A and B. Subsequently in the year 1954, considering the\r\nsurrender of the land, the survey number was subdivided\r\nand the land measuring 3 acres 12 guntas which was in\r\noccupation and cultivation of the tenant was assigned Sy.\r\nNo.143/1, while the land which was surrendered by him\r\nmeasuring 1 acre 26 guntas was assigned Sy. No.143/2.\r\nFrom the year 1954 onwards, till the year 1957, the\r\noriginal landlord\'s name was shown in the revenue records\r\nof the land in question. Thereafter, on the basis of the\r\npartition deed dated 20.12.1957, wherein the land in\r\nquestion was allotted to the father of the petitioner, the\r\nentries in the revenue records of the land in question were\r\ntransferred in the name of the petitioner\'s father namely\r\nParashuram Tirumale. The said entry which was made in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the year 1958, continued during the lifetime of petitioner\'s\r\nfather.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. After the death of petitioner\'s father, the entries\r\nin respect of the land in question have been transferred in\r\nthe name of petitioners, who are the legal representatives\r\nof the aforesaid Parashuram Tirumale. At no point of time,\r\nthe original tenant or his legal representatives had\r\nquestioned the correctness or validity of the revenue\r\nentries in respect of the land in question which stood in\r\nthe name of Parashuram Tirumale.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. After remand, the Tribunal has now passed the\r\nimpugned order granting occupancy rights of the land in\r\nquestion in favour of the legal representatives of the\r\noriginal claimant on the ground that there is no material to\r\nshow that the possession of the land in question was taken\r\nby the landlord in accordance with law in compliance of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the requirements under Section 29(2) of the Act of 1948.\r\nThe Tribunal while passing the order impugned has\r\ncompletely ignored the documents which are available on\r\nrecord which evidences that the tenant had surrendered\r\nthe land in question in favour of the landlord. In a case of\r\nsurrender by the tenant, Section 5 of the Act of 1948 is\r\napplicable and not Section 29 of the Act of 1948. In\r\naddition to the same, the material on record would go to\r\nshow that the land which was surrendered by the tenant\r\nwas assigned with a sub division number and thereafter\r\nthe said land was subject matter of the partition within the\r\nfamily of the landlord and was allotted to the father of the\r\npetitioner under a partition deed executed on 20.12.1957.\r\nPursuant to the same, the mutation in respect of the land\r\nin question was made in favour of the petitioner\'s father,\r\nwho was allotted the land in question in the aforesaid\r\npartition. Even since then, his name has continued in the\r\nrevenue records of the land in question and after his\r\ndeath, the same were transferred in the name of his legal\r\nheirs.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. The presumption that arises in view of the\r\naforesaid entries, in favour of the landlords, has been\r\ncompletely overlooked by the Tribunal inspite of this Court\r\nspecifically directing the Tribunal to appreciate the said\r\naspect of the matter. It is also necessary to take into\r\nconsideration that the original order of grant passed on\r\n22.05.1976 was challenged by the landlords only insofar it\r\nrelates to granting occupancy rights of the land in question\r\nwhich measures 1 acre 26 guntas. The order insofar it\r\nrelates to granting occupancy rights of the other item of\r\nland bearing Sy. No.143/1 measuring 3 acres 12 guntas\r\nwas not questioned by the landlord and therefore the\r\nsame had attained finality. The claimant being not\r\nsatisfied with the same, has been further pursuing his\r\nclaim in respect of the land in question.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> The Writ petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '106d468d4d3b66a95c58c02a2f99ac94.jpeg', 'bb69172ab4320e7aea306e73b385e8df.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-07', 1, '', '', '2023-07-06 14:09:58', '2023-07-07 03:21:25'),
(3166, 'mlKpgJxWTpaOmStJsbvHPCWw2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Public charitable trust need not obtain permission from the jurisdictional District Court in order to file suit against a third party. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Narasimhalu Nandini and others Vs Janatha Trust and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 203194 of 2022 decided on 19 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The respondent-Janatha Trust, a Public Charitable\r\nTrust had filed a suit in O.S.No.263/2021 before the\r\nAdditional Civil Judge and JMFC-III at Raichur,\r\nseeking for a permanent injunction against the\r\npetitioners herein and others from interfering with\r\nthe peaceful possession of the suit land in Sy.No.21\r\nmeasuring 37 guntas of Rampur village.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The petitioners had filed their written statement and\r\nsubsequently, filed an application under Section 92 of\r\nthe Code of Civil Procedure, 1908 (for short,\r\nhereinafter referred to as \'CPC\') on 20.12.2021 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contending that without permission being obtained in\r\nterms of Section 92 of CPC, a suit could not have\r\nbeen instituted by a Public Charitable Trust against\r\nthe petitioners arraying as defendants.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. The said application came to be dismissed by the\r\nTrial Court by holding that the suit having been filed\r\nagainst the third party, there is no requirement of\r\npermission under Section 92 of CPC to be taken and\r\nas such, dismissed the application in I.A.No.III. It is\r\naggrieved by the same that the petitioners are before\r\nthis Court.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The short point that would arise for consideration is\r\nwhether a public charitable trust could be required to\r\nobtain permission from the jurisdictional District\r\nCourt in order to file the suit against a third party?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">9. In terms of sub Section (1) of Section 92 of CPC, it is\r\nmandated that if a trust were to file a suit whether\r\ncontentious or not, leave of the principal Civil Court\r\nof original jurisdiction or any other Civil Court\r\nempowered in that behalf by the State Government\r\nwithin the local limits of which subject matter is\r\nsituate, would have to be obtained in order to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">institute the suit. The said provisions also details out\r\nthe nature of the suit that would come within the\r\npurview of sub Section (1) of Section 92 of CPC.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. A perusal of the various matters enumerated under\r\nSub Section (1) of Section 92 of CPC would indicate\r\nthat a suit relating to removal of a trustee,\r\nappointment of new trustee, vesting the property in\r\na trustee, direction to a trustee, accounts and\r\nenquiries of the trust, usage of the trust property for\r\na particular purpose, settling the claim, etc. is carried\r\nunder sub section (ii) of Section 92 of CPC.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. Clause-(h) is a residuary provision which deals with\r\ngranting of any such further or other relief as the\r\nnature of the case may require. This residuary\r\nprovision can only relate to the subject matter\r\nenumerated in Clauses-(a) to (g) and would have to\r\nbe read in conjunction with the said clause. Clause-\r\n(h) has no independent existence nor does it provide\r\nfor an independent subject matter so as to make it\r\napplicable to a suit for permanent injunction filed by\r\nthe trust against a third party. It is only in respect of\r\nthe subject matter at Clause-(a) to (g), that leave of\r\nthe Court is required to be obtained and in\r\nconnection thereto, any such other further reliefs in\r\nthe interest of justice or in the nature of the case\r\nmay also be sought for.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. The said Section 92 of CPC has been introduced for\r\nthe purposes of proper administration of a trust and\r\nas such, deals with the internal management of the\r\ntrust and the management of the trust properties. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. The suit filed by the trust against a third party as\r\ndone in this case, in my considered opinion would not\r\ncome within the purview of Section 92 of CPC. The\r\nsaid suit having been filed in the normal operation of\r\nthe trust for the trust to preserve and protect its\r\nproperties and or claim such other properties and not\r\nrelating to the management of the trust would be\r\noutside the purview of Section 92 of CPC. If such an\r\ninterpretation is taken up, then a public charitable\r\ntrust would never be able to file any suit for bare\r\ninjunction, recovery of money, specific performance,\r\ndeclaration or the like, thus, impending effective\r\nfunctioning and operation of the trust.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. In that view of the matter the trial Court having\r\nconsidered several aspects relating to the dispute\r\nbetween the plaintiff and the defendants of the suit\r\nand held that Section 92 of CPC would not apply for\r\nthe reasons stated hereinabove and that stated by\r\nthe trial Court, I do not find any reason to interfere <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">with the matter. Accordingly, the writ petition is\r\ndismissed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd94c367cdb3bd7bc0c4de2f1cfbeb834.JPG', '791a5b2a524f1fa13f60edc238c876d2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-07', 1, '', '', '2023-07-06 14:32:10', '2023-07-07 06:25:24'),
(3167, 'BsgpKzXTcAM25Z3sOhWQyg6zv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Religious Institution (Prevention of Misuse) Act, 1988. Election campaign in the temple premises by person who is not in-charge of the affair of the Temple does not attract the Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ravi Patel Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 200727 of 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This petition under Section 482 of Cr.P.C. is filed by\r\nthe petitioner - accused challenging the proceedings in\r\nC.C.No.623/2018 on the file of the Civil Judge and JMFC,\r\nat Manvi, for the offence punishable under Section 188 of\r\nIPC and Section 7 of the Religious Institutions (Prevention\r\nof Misuse) Act, 1988. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>02. The summary of the charge-sheet is that, the\r\npetitioner - accused who was the candidate contesting\r\nfrom the JDS Party in the State Assembly Election, from\r\nRaichur Rural Constituency, had misused the Temple\r\nPremises for campaigning, in violation of Code of Conduct.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>05. Section 7 of the Religious Institution\r\n(Prevention of Misuse) Act, 1988, specifies that, where any\r\nreligious institution or manager thereof contravenes, the\r\nprovisions of Sections 3, 4, 5 or 6, the manager and every\r\nperson connected with such contravention shall be\r\npunishable with imprisonment for a period a term which\r\nmay extend to five years and with fine which may extend\r\nto ten thousand rupees.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. Admittedly, the accused herein was not incharge of the affair of the Temple and he had allegedly\r\ncampaigned in the Temple premises in violation of the\r\ncode of conduct. Hence, Section 7 of the Act, is applicable\r\nonly to a person who was in-charge of the affairs of the\r\nTemple for contravention of the provision of the Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 07. The offence punishable under Section 188 of\r\nIPC is non-cognizable. The police before conducting the\r\ninvestigation was required to obtain an order as prescribed\r\nunder Section 155 (2) of Cr.P.C. In the instant case, the\r\npolice conducted the investigation without obtaining an\r\norder as prescribed under Section 155 (2) of Cr.P.C.\r\nHence, the conducting of the investigation of an offence\r\npunishable under Section 188 of IPC culminating in taking\r\ncognizance for the aforesaid offence stands vitiated for\r\nnon-compliance of mandatory provision under Section 155\r\n(2) of Cr.P.C. Hence, the continuation of criminal\r\nproceedings will be an abuse of process of law<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\nI. The Criminal Petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '453124f896d640f492fe37d669d7d047.jpeg', 'ff13b3094b6562ef138f7dc9dcaa858e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-07', 1, '', '', '2023-07-06 15:12:18', '2023-07-07 10:22:16'),
(3177, 'kRkz8MoxscUmVYvVVdgWStUtB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Resjudicata is a mixed question of fact and law. Plaint cannot be rejected under Order 7, Rule 11(d) of C.P.C. without holding full fledged trial. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gangadhar and others Vs B. Rajendra Reddy and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 435 of 2022 decided on 4 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. This revision petition is filed challenging the order\r\ndated 21.01.2022 passed on I.A.No.III in O.S.No.1966/2021\r\non the file of the IV Additional Senior Civil Judge, Bengaluru\r\nRural District, Bengaluru, rejecting I.A.No.III filed under order\r\n7, Rule 11(d) of CPC for rejection of plaint on the ground that\r\nsuit is barred by res judicata and also later contended that the\r\nsuit is also barred by limitation.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Having heard the respective counsel and also on\r\nperusal of the material on record, the point that would arise for\r\nconsideration of this Court is:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(i) Whether the Trial Court committed an error\r\nin rejecting the application filed under Order\r\n7, Rule 11(d) of C.P.C? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Point No.(i)\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 14. The Trial Court has passed a common order on\r\nI.A.Nos.3, 4 and 5. However, this Court has to consider point\r\nNo.1 framed by the Trial Court with regard to the application\r\nfiled under Order 7, Rule 11(d) of C.P.C. When an application\r\nis filed under Order 7, Rule 11(d) of C.P.C., the defendant\r\nNos.5 and 6 have pleaded that the suit is barred by res judicata\r\nand later, contended that the suit is barred by limitation by way\r\nof an additional affidavit and the same is resisted by the\r\nrespondent No.1-plaintiff by filing statement of objections.\r\nAdmittedly, the defendant No.5 has not filed any written <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">statement before the Trial Court but, invoked Order 7, Rule 11\r\n(d) of C.P.C.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 15. It is settled law that while considering the\r\napplication filed under Order 7, Rule 11(d) of C.P.C., the\r\ndefence is immaterial and the Court has to only look into the\r\naverments of the plaint and the application cannot be decided\r\nbased on the defence of the defendants.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18. When the relief is sought to dismiss the application\r\nfiled under Order 7, Rule 11(d) of C.P.C. which is hit by res\r\njudicata, whether the same is barred by res judicata has to be\r\nconsidered only after trial and the same is a mixed question of\r\nfact and law. Whether the issue involved between the parties\r\nis directly and substantially involves the very relief sought has\r\nto be considered after trial and though there were two suits\r\ni.e., one filed by the plaintiff and another by the grand-mother\r\nand later the plaintiff also became the party to the sale deed,\r\nthe said issue has to be considered during trial when mixed\r\nquestion of fact and law is involved. The Court has to consider\r\nwhether the issues involved between the parties is directly and\r\nsubstantially involves the very relief sought with regard to the\r\nproperty in question in the earlier suit.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. The other contention of the petitioners-defendant\r\nNos.5 and 6 is that the suit is barred by limitation and after 16\r\nyears of execution of the sale deed, the suit is filed. The\r\nlearned counsel for the respondent No.1-plaintiff also brought\r\nto notice of this Court, no doubt, the plaintiff is also party to\r\nthe sale deed, wherein he was vendor No.4 and with regard to\r\nselling of property is concerned, it is specifically stated in the\r\nsale deed that he had purchased the property to the extent of\r\n20 guntas and he had sold the same in favour of defendant\r\nNo.4 which is also considered by the Trial Court. The very\r\ncontention of the learned counsel for the petitioners-defendant\r\nNos.5 and 6 is that the plaintiff is also a party to the sale deed\r\nand the same has been considered by the Trial Court that the\r\nplaintiff had purchased the property to the extent of 20 guntas\r\nand the same was sold and the law of limitation also involves\r\nmixed question of fact and law. When mixed question of fact\r\nand law is involved, it requires full-fledged trial and the Trial\r\nCourt also while passing the order, in detail discussed with\r\nregard to the very grounds urged by the petitioners-defendant\r\nNos.5 and 6 herein invoking res judicata as well as law of\r\nlimitation.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">20. Having perused the prayer made in the plaint and\r\nalso the averments made in the plaint, the suit is filed for the\r\nrelief of declaration as well as possession and when the Trial\r\nCourt has also taken note of the fact that the plaintiff has not\r\npleaded with regard to whether he was dispossessed or not and\r\nthe same is also a mixed question of fact and law, the matter\r\nrequires to be tried before the Trial Court and the Court has to\r\ntake note of the very contention urged by the parties and the\r\nsame cannot be decided in an application filed under Order 7,\r\nRule 11(d) of C.P.C., when the disputed questions are involved\r\nbetween the parties and the same has to be considered only\r\nafter full-fledged trial. Hence, I do not find any error\r\ncommitted by the Trial Court and the Trial Court, only after\r\nrecording the evidence and considering the grounds which have\r\nbeen urged i.e., with regard to res judicata and law of\r\nlimitation, can decide the same. The decisions relied upon by\r\nthe learned counsel for the petitioners will not come to the aid\r\nof the petitioners and the same is a mixed question of fact and\r\nlaw and the same cannot be decided in an application filed\r\nunder Order 7, Rule 11(d) of C.P.C. and the suit is not barred </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by any law. Therefore I do not find any merit in the petition.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Accordingly, I answer point No.(i) as ‘negative’.\r\n Accordingly, the revision petition is dismissed.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '82931a29b2efbc1fc45122f71c6a040e.JPG', '92a1b7fb0ed4a8d38cc3c984527630bf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-11', 1, '', '', '2023-07-08 21:18:57', '2023-07-11 03:21:52');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3172, 'Bo2POtFSS5h25GuN9rYugrfTp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Employees’ Provident Funds and Miscellaneous Provisions Act. Competent authority has discretion to reduce the percentage of damages under Section 14B and the same is justiciable. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regional Provident Fund Commissioner and others Vs M/S. HMT Limited.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Appeal 587 of 2016 decided on 27 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Somashekar and Justice Umesh M Adiga.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. It was the case of Petitioner in the aforesaid Writ Petition that it is a Public Sector Enterprise under the administrative control of Department of Heavy Industries, Ministry of Heavy Industries and Public Enterprises with Government of India having shares with 93.69%. The Respondent was incorporated as “Hindustan Machine Tools Private Limited,” under the-then Companies Act of 1913 and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">later on, its name was changed as “Hindustan Machine Tools” and subsequently it has been called as “HMT Limited.”</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. The Respondent establishment was covered under the provisions of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952. It is an exempted establishment under Section 17 (1)(a) of the said Act. The Respondent has contented in the Writ Petition that during the period 1997 to 2001, the Respondent incurred heavy losses on account of loss incurred by the constituents of the Trust. Therefore, requisite contribution was not paid in time. Thereafter, respondent received sanction from the President of India for payment of Rs.250 Crores dues; and utilizing the portion of the said amount, Respondent had paid dues or arrears of Provident Fund (for short, PF) of its employees.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. Due to delayed payment of PF, Appellants issued notice to Respondent under Section 14B of Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 (for the sake of brevity, hereinafter referred to as EPF Act of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1952) for the period from May 1997 to August 2001. The Representative of the Respondent appeared before the concerned authority and put forth their contention and also circumstances leading to delay in depositing of PF amount of its employees. The concerned officer of the Appellant had rejected contention of the Respondent and by order dated 02.01.2004 levied damages of Rs.3,68,30,901/- for the belated remittance of PF contribution. The said order passed by the competent authority was challenged by Respondent before this Court in Writ Petition No.7449 of 2004. This Court heard the said matter and by order dated 27.01.2005, the said Writ Petition was rejected, with the liberty to prefer an appeal before the Employee’s Provident Fund Appellate Tribunal (for short, EPFAT). The Respondent, thereafter filed an appeal before EPFAT in ATA No.157 (6) of 2004. The EPFAT heard the matter and by order dated 24.06.2010, dismissed the appeal and the said copy is at Annexure –M.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The following points emerge for our determination:-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>1. Whether rates of percentage of damages for arrears of EPF is justifiable?</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>2. What order?<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. The crux of this matter is, whether the competent authority has discretion to reduce the percentage of damages <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to be imposed, as per Para No.35 of EPF Act and whether the learned Single Judge is justified in reducing the percentage of damages from 37% to 15% and directing EPF Authority to recalculate the damages accordingly, is proper or justifiable. Other facts are more or less undisputed. Hence, there is no need to reconsider the said facts.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. On plain reading of Section 14B, it is very clear that discretion is vested with officer referred in Section 14B to recover damages. It does not say that “damages shall be recovered”. On the contrary, it gives him a discretion to recover the damages and the word used is “may”. The first proviso to the said Section make it more clear that the said power of the concerned officer is discretionary. If he had no right to vary the percentage of damages, as contended by the learned advocate for the appellant, then there is no need of hearing of the parties or considering their case on merits and pass the orders. When there is discretion, then only the question arises about hearing of the parties and if the concerned officer finds that there are justifiable reasons for not imposing penalty, by way of damages, as provided under Section 32B of the Act, then he can pass suitable orders.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. Section 7Q of the EPF Act 1952 also deals with payment of interest for default in depositing of the contribution of the employees. Under the said Section, the legislation has mandated the concerned officer to recover the interest at the rate of 12% and the concerned officer has no discretion and he shall collect the interest at the rate of 12% per annum and such percentage can be varied as per the Scheme of the Act and the said Sections also do not provide <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that before collecting the interest, the concerned employer has to be heard. Section 7Q is also pertaining to delayed payment of contribution or default in payment of the contribution to the Employees Provident Fund</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. In the recent Judgment, rendered by the Allahabad High Court in the case of B.N.S.D.SHIKSHA NIKETHAN UCHCHATAR MADHYAMIK VIDYALAYA Vs. THE REGIONAL PROVIDENT FUND COMMISSIONER AND ANOTHER3 rendered on 24.03.2023, it is held that under Section 14B of the EPF Act, discretion power is given to the officer to impose the percentage of damages when the employer has defaulted in payment of contribution or there were arrears of contribution. The learned Judge of Allahabad High Court relying on the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Judgment of the Hon’ble Supreme Court rendered in the different Judgments has held that under Section 14B of the Act, it is the discretion power of the concerned officer. The learned Judge has quoted the Judgment of Hon’ble Supreme Court in the case of HINDUSTAN TIMES LIMITED Vs. THE UNION OF INDIA AND OTHERS , wherein it is held as under:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The authority under Section 14-B has to apply his mind to the facts of the case and the reply to the show-cause notice and pass a reasoned order after following principles of natural justice and giving a reasonable opportunity of being heard; the Regional Provisional Fund Commissioner usually takes into consideration the number of defaults, the period of delay, the frequency of default and the amounts involved\' default on the part of the employer based on plea of power-cut, financial problems relating to other indebtedness or the delay in realisation of amounts paid by the cheques or drafts, cannot be justifiable grounds for the employer to escape liability.</span><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. The Hon’ble Supreme Court in the case of EMPLOYEES STATE INSURANCE CORPORATION VS. HMT LIMITED AND ANOTHER5 rendered judgment on 11.01.2008 it is held as under:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>16. It was, however, opined that in certain situations, the employer can claim the benefit of \'irretrievable prejudice\' in case a demand for damages is made after several years. In that case, this Court was concerned, inter alia, with a question in regard to the effect of levy of damages after a long time. The question which, inter alia, arose for consideration therein was as to whether suo moto revisional jurisdiction could be exercised by the revisional authority at any time it desires. The Court made a contributions made by the workmen in trust and other cases. It was in that situation opined supra. We are not concerned with such a situation herein.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>17. A penal provision should be construed strictly. Only because a provision has been made for levy of penalty, the same by itself would not lead to the conclusion that penalty must be levied in all situations. Such an intention on the part of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">legislature is not decipherable from Section 85B of the Act. When a discretionary jurisdiction has been conferred on a statutory authority to levy penal damages by reason of an enabling provision, the same cannot be construed as imperative. Even otherwise, an endeavour should be made to construe such penal provisions as discretionary, under the statute is held to be mandatory in character.</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>20. We agree with the said view as also for the additional reason that the subordinate legislation cannot override the principal legislative provisions. The statute itself does not say that a penalty has to be levied only in the manner prescribed. It is also not a case where the authority is left with no discretion. The legislation does not provide that adjudication for the purpose of levy of penalty proceeding would be a mere formality or imposition of penalty as also computation of the quantum thereof became a foregone conclusion. Ordinarily, even such a provision would not be held to providing for mandatory imposition of penalty, if the proceeding is an adjudicatory one or compliance of the principles of natural justice is necessary there under.</i></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Hon’ble Supreme Court relied on its earlier Judgment in the case of Hindustan Times Limited Vs. Union of India (referred supra) and the said Judgment is also quoted the relevant portion about the principles rendered by the Lordship in the case of Hindustan Time Limited Vs. Union of India. Of course, the said judgment is pertaining to the Employee State Insurance Act. However, relevant portion of Section 14B of EPF Act, 1952 is also referred in the said judgment, which is parametria with Section 85B of the Employee State Insurance Act. In the above said Judgment, the Hon’ble Supreme Court held that even under Section 14B of EPF Act discretion power was given to commissioner and on the basis of various facts and circumstances, the concerned officer has to use the discretion and impose relevant percentage of damages as penalty. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">26. The learned Advocate for appellant has relied on the Judgment in the case of Horticulture Experiment Station, Gonikoppalu, Coorg (referred supra). In the said Judgment, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">rendered by the Hon’ble Supreme Court, is pertaining to the mensrea and held that any default or delay in payment of EPF contribution by employer under the Act is a sine-qua-non for imposition of levy of damages under Section 14B of the EPF Act,1952 and mens rea or actus reus is not an essential element for imposing penalty/damages for breach of civil obligation/liabilities. However, the principle of law laid down in the above said Judgment is not aptly applicable to the facts of the present case. In this case, the core question is, whether the concerned authority can reduce percentage of damages to be recovered as penalty from the concerned employer who has committed default in payment of the contribution. There is no dispute regarding imposing of the penalty or collecting of the damages. But the dispute is, whether the concerned authority has discretion to vary the percentage of damages other than prescribed under the Table or whether the concerned authority have to impose the damages as maximum amount mentioned in the Table.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. The learned advocate for respondent has relied on some of the judgments rendered by this Court as well as the Hon’ble Supreme Court mentioned in the list annexed to the Writ Appeal. It is sufficient to mention that the principle of law laid down in some of the judgments in the above list are pertaining to discretion power of the concerned authority and in some of the judgments referred above, this Court has set aside the orders and remanded the matter back to the concerned officer, to reconsider their findings. There is no need to refer them and application of principles of law to the facts of present case.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. The principle of law laid down in the above said judgments, rendered by the Hon’ble Supreme Court, it is held that it is very much clear as to how the damages has to be calculated by the concerned officer or how he has to exercise the discretion under Section 14B read with Para 32 and 32B of EPF Schemes.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. The Respondent Company is a public undertaking formed by the Government of India. It suffered heavy losses and to compensate the said loss, the Government had sanctioned Rs.250 Crores and admittedly, from the said amount, the company had paid the arrears to EPF. It is not the case of the appellants that they were continuous defaulters even when the Company was running under the profits and it is not also their case that prior to 1997, there was regular default committed by the Company in transferring the contribution amount to the EPF Authorities. It is also not the case of appellants that with a malafide intention, the Company has not paid the contribution or transferred the amount of the contribution to the EPF of the employees. Considering all these facts and circumstances of the case, the learned Single Judge in the impugned order deemed it appropriate to direct the appellants to collect/re-calculate the damages at the rate 15%. The said finding is not arbitrary or perverse. It does not call for any interference.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i) The Writ Appeal is dismissed. </b></p>', '932e8b8219b959c27236ab9ef9b74f01.jpeg', '2f0b6e8cdb0c99d850121edf201c188e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-08', 1, '', '', '2023-07-07 13:49:19', '2023-07-08 03:22:25'),
(3173, '9wWx3qfq6ccbcDdbHYBTCulVJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When accused are acquitted for the offences under Sections 498A, 304B IPC and Sections 3 and 4 of the Dowry Prohibition Act, conviction for the murder cannot be sustained. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Thippeswamy and others Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 829 of 2017 decided on 26 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Somashekar and Justice Rajesh Rai K.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">This appeal is directed against the judgment of conviction and order of sentence rendered by the Court of the Prl. District & Sessions Judge, Chitradurga, in S.C.No.13/2014 dated 08.01.2016, convicting the appellants/accused Nos.1 to 3 for offences punishable under Sections 302 read with Section 34 IPC, while acquitting the accused for offences punishable under Sections 498A, 304B read with Section 34 of the IPC and Sections 3 and 4 of the Dowry Prohibition Act. Further, the appellants / Accused Nos.1 to 3 were directed to undergo imprisonment for life and to pay a fine of Rs.10,000/- each for the offence punishable under Section 302 read with Section 34 of the IPC and in default of payment of fine amount, to undergo further simple imprisonment for a period of three months.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The appellants have preferred the present appeal seeking to allow the appeal and to thereby acquit appellants / accused Nos.1 to 3 for offences punishable under Sections 302 read with Section 34 of the IPC, for the grounds urged therein.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. The factual matrix of the appeal is as under:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>It transpires from the case of the prosecution that the marriage of accused No.1 namely Thippeswamy was performed with deceased Manjamma @ Manjula as per the customs prevailing in their society and their marriage was performed on 05.06.2010. At the time of marriage, the accused had received Rs.12,000/- as dowry. Manjamma was residing along with her husband and in-laws in her matrimonial home, after their marriage. It is stated that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">while leading her marital life, all the accused persons used to give physical as well as mental harassment to the deceased Manjamma, by demanding additional dowry of Rs.25,000/-. It is stated that particularly on 14.10.2013 at 8.00 a.m., all the accused persons had picked up a quarrel with the deceased Manjamma and confined her in a room bolting the door of the said room and had given physical and mental harassment to her. All the three of the accused namely the husband, father-in-law and mother-in-law of the deceased Manjamma, are said to have hatched a criminal conspiracy to commit her murder. In the said attempt, Accused No.1 / Thippeswamy is said to have doused kerosene on Manjamma’s body and Accused No.2 / Nagendrappa had set her ablaze and it is stated that Accused No.3 / Jayamma instigated the other accused persons so as to commit the said offences. As a result of her hue and cry out of severe burns, Manjamma is said to have taken to hospital by the neighbourers. However, in view of sustaining severe burn injuries, she died while under treatment in the hospital. On the basis of the said </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">allegations, a complaint was filed by the complainant. Thereafter, criminal law was set into motion by recording an FIR and crime was registered against Accused Nos.1 to 3 for the offences punishable under Sections 498A, 304B, 302 read with Section 34 of the IPC and Sections 3 and 4 of the Dowry Prohibition Act.</span><span style=\"font-size: 12pt;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. As per Section 32 of the Indian Evidence Act, 1872, there can be no dispute that dying declaration can be the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sole basis for conviction, however, such a dying declaration has to be proved to be wholly reliable, voluntary and truthful and further that the maker there of must be in a fit medical condition to make it. This was exhaustively addressed in decision rendered by the Hon\'ble Supreme Court in the case of Waikhom Yaima Singh Vs. State of Manipur JT (2011(6) SC 355).</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>18. In the decision rendered by the Hon\'ble Supreme Court in the case of Nanhar Vs. State of Haryana (JT 2010(6) SC 196), it is held that, \"dying declaration should be such, which should immensely strike to be genuine and stating true story of its maker. It should be free from all doubts and on going through it, an impression has to be registered immediately in mind that it is genuine, true and not tainted with doubts. Further it should not be result of tutoring.\"</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">19. Even in the case of Ram Sai Vs. State of Madhya Pradesh (1994 Crl.LJ 138 (SC)), it is held by the Hon\'ble Supreme Court that, \"where there were infirmities in declaration regarding state of deceased to make oral dying</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">declaration and unnatural conduct of witness to whom dying declaration was allegedly given by the deceased which was disclosed to the police after two days of death of deceased, accused was entitled to the benefit of doubt.\"</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>20. Further it is relevant to refer to the decision of the Hon\'ble Supreme Court in the case of (Bhajju Vs. State of Madhya Pradesh (2012) 4 SCC 327), wherein, it is held that, \"If the dying declaration has been recorded in accordance with law, is reliable and gives a cogent and possible explanation of the occurrence of the events, then the dying declaration can certainly be relied upon by the court and could form the sole piece of evidence resulting in the conviction of the accused.\"</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. In the instant case, the dying declaration at Exhibit P21 recorded by PW-17 / Taluk Executive Magistrate and Exhibit P25 the second dying declaration was recorded by the Head Constable. The first dying declaration at Exhibit P21 has been recorded in the presence of PW-22 / Dr. G.H. Rupa, which is in a question and answer format. The deceased Manjamma had suffered severe burn <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">injuries and was admitted to Government Hospital and she answered to the questions posed by Shri Kantharaja, responsible Taluk Executive Magistrate. There were infirmities in recording the statement of the deceased to make an oral dying declaration and unnatural conduct given by the deceased which was disclosed to the Police Officer. Subsequent to recording of Exhibit P21 by the Taluk Executive Magistrate examined as PW-17, another Dying Declaration was recorded as per Exhibit P25 by the Head Constable / PW-21. If there is no doubt in the contents made by the deceased at Exhibits P21 and P25, then the said evidence is enough to render a conviction judgment. But in the instant case, a doubt arises in the mind of the Court relating to Exhibit P21 and relating to Exhibit P25 in view of the fact that the deceased Manjamma had sustained severe burn injuries to an extent of 80% to 90%. Despite of it, her statement was recorded. Even the Doctor has given evidence that the deceased was in a fit condition to give her statement. PW-17 and PW-22 being responsible official witnesses said to have recorded the dying declaration of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">deceased Manjamma, the Trial Court had a responsibility to assess their evidence in a stricto senso manner keeping in view Section 32 of the Indian Evidence Act. In this regard, it is relevant to refer to a judgment of the Hon’ble Supreme Court of India in the case of JAYAMMA & ANR. Vs. STATE OF KARNATAKA ((2021) 5 S.C.R. 11)). In this reliance, the Hon’ble Supreme Court had addressed the scope of Section 302 read with Section 34 of the IPC, which is held thus:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“ Penal Code, 1860: s.302 r/w 34 – Allegation that on account of previous dispute between the parties, accused wit the intention to kill the victim went to her house, doused her with kerosene and set her ablaze – Acquittal by the trial court – However, the High Court on basis of the dying declaration and corroborative statement of the police officer who recorded the dying declaration and the doctor who endorsed the mental fitness of the victim to make such statement, convicted the accused u/s. 302 r/w 34 and imposed life imprisonment – On appeal, held: conviction of the accused cannot be upheld only on the basis of the dying declaration – Narration of events in the dying declaration were so accurate to be believed – Injured victim was an illiterate old person and its beyond human probabilities to have been able to narrate the minutes of the incident with</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">such accuracy – Owing to 80% burn injuries suffered by the victim on all vital parts of the body, the possibility of her not being in a fit state cannot be completely ruled out – Police Officer did not ask the doctor to make an endorsement of fitness of the victim before recording the statement – There is a serious contradiction between the statement of the doctor and the police officer in respect of the nature of burn injuries suffered on different body parts of the victim”.</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the instant case, Manjamma had sustained 80% to 90% burn injuries. As per the evidence of PW-22 who was subjected to examination and in her presence, Exhibit P21 was recorded by the Executive Magistrate. But subsequent to her statement at Exhibit P21, PW-21 / Head Constable had recorded the subsequent statement of the deceased marked at Exhibit P25. But merely because of the said dying declaration, it cannot be said that the prosecution has proved the guilt against the accused unless there is worthwhile evidence and creditworthy evidence to probabilise that the accused are the cause for the death of the deceased by dousing her with kerosene and setting her ablaze. In the said case, the vital evidence are that of PW-17 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and PW-21 relating to the dying declaration of the deceased at Exhibits P21 and P25. But at a cursory glance of the entire evidence, it indicates that the theory set up by the prosecution is found to be doubtful and does not inspire confidence in the mind of the Court to render a conviction judgment against the accused for offences under Section 302 read with Section 34 of the IPC. As already stated, the Trial Court has rendered acquittal judgment for offences under Sections 498A, 304B read with Section 34 of the IPC and Sections 3 and 4 of the Dowry Prohibition Act. Section 304B relates to dowry death within 7 years from the date of her marriage, but the case ended in acquittal based on the evidence of the prosecution. When the offences under Sections 498A, 304B read with Section 34 IPC including offences under Sections 3 and 4 of the DP Act have itself ended in acquittal, that is dowry death within 7 years from the date of her marriage, naturally it would dilute the strength of the evidence of the prosecution as regards the main offence under Section 302 read with Section 34 of the IPC. The motive factor and the intention as regards causing </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the death of the deceased is the main part to be considered in the instant case.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. The main offence is Section 302 read with Section 34 IPC. However, accused have been acquitted for offences under Sections 498A, 304B read with Section 34 IPC including offences under Sections 3 and 4 of the DP Act, that is dowry death within 7 years from the date of her marriage. Hence, naturally it would dilute the main offence under Section 302 read with Section 34 IPC. In order to constitute offence under Section 302 IPC, it is necessary for the prosecution to establish that there was mens rea and actus rea. Otherwise, it cannot be construed that there was an intention for the accused to eliminate the deceased. However, the homicidal death of Manjamma is not in dispute. Merely because she had sustained burn injuries, it <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cannot be said that the offences under Section 302 read with Section 34 of the IPC has been proved by the prosecution by facilitating worthwhile and acceptable evidence. Unlawful homicide may be divided into three categories namely, i) Culpable homicide, ii) Causing death by rash or negligent act not amounting to culpable homicide and iii) Suicide as under Section 305 and 306 of IPC. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. As regards Section 300 of IPC, 1860 relating to murder, there is no definition of murder in the aforesaid Section but the said Section merely takes the four more serious types of culpable homicide, basing on the mens rea and designates them murder.It is not essential for the prosecution to establish motive factor against the accused in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">all cases, but at some time it cannot be given to gainsaid that without adequate motive speaking normally, none is expected to take life of another human being.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">26. But the motive behind the crime is a relevant fact of which evidence can be given. The absence of a motive is also a circumstance which is relevant for assigning the evidence. But the circumstances proving the guilt of the accused are however not weakened at all by the fact that the motive has not been established. It often happens that only the culprit himself knows what moved him to certain course of action. In the instant case, the dying declaration at Exhibit P21 and Exhibit P25 are required to be reappreciated and closely scrutinized.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. Dying Declaration where held not reliable: The manner of recording dying declaration is doubtful, and it cannot be relied upon to sustain the conviction of the accused as under Section 302 of IPC. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declarations. The dying declaration does not reveal entire truth, and it has <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to be considered only as a piece of evidence on which event conviction cannot be rested solely on the basis of such doubtful dying declaration. If the dying declaration was recorded in presence of the relatives of the deceased the possibility that the deceased was tutored cannot be ruled out.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. A dying declaration is very important document because it amounts to a statement of the deceased verba dicta. The dying declaration cannot be treated as wholly trustworthy as it is shrouded by many doubts. The Court must be satisfied that the deceased was in the state of mind after clear opportunity to observe and identify the assailant. But the dying declaration should be carefully scrutinized.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30. Medical evidence requires to be corroborated by ocular testimony. The prosecution has to establish the case by producing positive medical evidence in this regard to prove that the deceased died as a result of the burn injuries caused due to the act of the accused. In the instant case, there is no corroboration on the part of the prosecution to believe the versions made by deceased Manjamma which was recorded as per Exhibits P21 and P25. Without considering the said fact, the Trial Court has rendered conviction for offences under Section 302 read with Section 34 of the IPC. When offences under Section 498A, 304 B read with Section 34 IPC besides Sections 3 and 4 of the DP Act ended in acquittal, the prosecution, ought not to have <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">onvicted the accused for offences under Section 302 read with Section 34 of the IPC unless the prosecution has proved the guilt against the accused beyond all reasonable doubt. If doubt is created in the mind of the Court, it must be extended in favour of the accused alone.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">31. In the instant case, several witnesses have turned hostile to the case of the prosecution and their contradictory statements have been got marked. Despite the fact that no cogent and consistent evidence has been facilitated on the part of the prosecution and despite of infirmities and inconsistencies in the statement of witnesses, the Trial Court has rendered a conviction judgment for offences under Section 302 read with Section 34 of the IPC. Hence, we are of the opinion that the judgment of conviction requires interference for the aforesaid reasons and findings.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The appeal preferred by the appellants / Accused Nos.1 to 3 under Section 374 (2) of Cr.P.C. is hereby allowed. </b></p>', 'fdf10e39777413b5caaf4aaa99f17123.jpeg', '7a10d6ef5248740c2921d00ce882a0e2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-08', 1, '', '', '2023-07-07 13:50:09', '2023-07-08 10:33:43');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3174, 'RzP00a4U1PP4ReXvz5yV5zF9v', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Arbitration Act, 1940. Arbitrator cannot award damages for an alleged breach of the contract when the contract does not provide for such damages in the event of such breach. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Malnad Traders Vs Karnataka Food and Civil Corporation Limited.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>MFA 7649 of 2016 decided on 23 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Alok Aradhe and Justice Anant Ramanath Hegde.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In this appeal is under Section 39 of the Indian\r\nArbitration Act, 1940 (hereinafter referred to as the \'Act of\r\n1940\'), the appellant has impugned judgment dated\r\n22.07.2016 passed by the Principal Senior Civil Judge &\r\nCJM, at Shivamogga, wherein the appellant\'s application\r\nunder Section 33 of the Act of 1940 in AROS. No.11/1990 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is dismissed confirming the award dated 03.07.1984\r\npassed by the arbitrator.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 2. Facts in brief.\r\n -</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The appellant is a sub-agent of the respondent\r\nCompany. The respondent appointed the appellant as a\r\nsub-agent to carry out certain functions namely procuring\r\nand processing the paddy/rice under the agreement\r\nentered into between the parties. It is the case of the\r\nappellant that it has purchased paddy on behalf of the\r\nrespondent and submitted the bills to the respondent in\r\nrespect of the purchases made by the appellant. It is\r\nfurther stated that the respondent was required to issue\r\nhulling orders from time to time and the same was not\r\nissued in time. It is also alleged by the appellant that the\r\nbills submitted by the appellant are not honoured by the\r\nrespondent and payment was withheld without any reason\r\nwhich in turn caused inconvenience, hardship, and\r\nfinancial loss to the appellant.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. Admittedly, the arbitration proceeding is\r\ninitiated under the Act, of 1940. The agreement between\r\nthe parties does not stipulate that the arbitrator is required\r\nto assign reasons. The Act, of 1940 also does not provide\r\nthat the arbitrator has to assign the reasons, Unless the\r\narbitration agreement requires the arbitrator to assign\r\nreasons. Thus, the appellant cannot assail the award on\r\nthe premise that the award does not contain any reasons.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. Now this Court has to consider the challenge\r\non other grounds. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>27. Considering the contentions raised at the bar,\r\nit is apparent the appellant\'s case is not falling under\r\nSection 30(a) and (b) of the Act. The challenge is under\r\nSection 30(c). This Court has to consider whether the\r\nappellant before this Court has made out a case to set\r\naside the award under Section 30(c) of the Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. The scope of the Court under Section 30(c) is\r\nexamined by the Apex Court in the case of State of UP\r\nvs. Ramanath International Construction Pvt. Ltd.\r\nreported in (1996)1 SCC 18. In the aforementioned\r\njudgment, the Hon\'ble Apex court has held that the Court\r\ndealing with the challenge under Section 30 of the Act, can\r\nexamine the correctness of the award with reference to\r\nClauses in the agreement. Keeping in mind the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">aforementioned principle, this Court has to consider\r\nwhether the impugned portion of the award passed by the\r\narbitrator conforms with the agreement between the\r\nparties. For the aforesaid reasons the ratio relating to\r\nlimited scope for the Court to interfere with the award\r\nunder Section 30 of the Act, as held B.V.Radha Krishna\r\nvs. Sponge Iron India Limited reported in (1997) 4\r\nSCC 693 does not come in the way of this Court\r\nexamining the correctness of the award vis-a-vis the\r\nagreement between the parties. This Court is required to\r\nconsider the validity of the award, with reference to\r\nClauses in the agreement which bind the parties.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">29. In the impugned portion of the award, an\r\naddition of one and a half times the value of the stock due\r\nis made and Rs.41,64,723.34 is awarded. No Clause in the\r\nagreement permits such a claim. Clause 24 of the\r\nagreement, marked at Ex.P-67 allegedly provides for\r\ndamages in the event of stock falling short. This Court has </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">perused Clause 24 of the agreement. The said Clause does\r\nnot enable the respondent to claim one and a half times\r\nthe value of the stock due, as the amount payable by the\r\nappellant. In Clause 24 of the agreement, the space meant\r\nfor specifying the amount payable by the party responsible\r\nfor the shortfall of the stock is kept blank. In other words,\r\nthere is no agreement between the parties to pay one and\r\na half times the value of the stock due or in any other\r\nportion for that matter. Such being the position, the\r\narbitrator could not have passed an award by calculating\r\none and a half times the value of the stock due.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">30. It is further relevant to note that the\r\npenalty/damages provided under Clause 24 can be claimed\r\nonly in the event of the agreement being cancelled. This is\r\napparent from the language of Clause 24 which reads as\r\nunder:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\"24 in the event of the agent failing to\r\ndeliver the entire quantity of food grains\r\nbelonging to the Corporation the agent shall</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">make good such short-fall by paying to the\r\nCorporation a sum of Rs…..per quintal. On\r\nsuch cancellation of the agency, the\r\ncorporation shall be entitled to take over the\r\ngrains procured at the cost of the corporation\r\nand is also entitled to claim damages/penalty\r\nfrom the agent at the sole discretion of the\r\nManaging Director of the Corporation.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>31. Thus, it is apparent that right to claim\r\ndamages/penalty is subject to the corporation cancelling\r\nthe agency. Nothing is pleaded about the cancellation of\r\nthe agency. The aforesaid Clause does not provide the rate\r\nat which shortfall/damages has to be made good by the\r\nAgent.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n32. Thus, the impugned portion of the award is\r\ncontrary to the agreement between the parties. Unless the\r\nparties specifically agree to award one and a half times the\r\nvalue of the stock due, by way of damages, the arbitrator\r\nis not competent to pass an award under the said head. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Such an award is outside the scope of the agreement.\r\nSince there is no Clause in the agreement specifying the\r\ndamages payable to the respondent the respondent cannot\r\nclaim damages unless he can establish the actual loss\r\nsustained on account of the breach under Section 73 of the\r\nIndian Contract Act. Since the damages payable are not\r\nspecified, Section 74 of the Contract Act does not come to\r\nthe rescue of the respondent. As there is no Clause in the\r\nagreement specifying the damages/penalty payable the\r\nrespondent has to establish the loss before claiming\r\ndamages. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>33. This being the position, the award of one and a\r\nhalf times the value of the stock due is beyond the scope\r\nof the agreement given the fact that the space in Clause\r\n24 relating to damages/penalty is kept blank. If the\r\narbitrator awards damages of a certain kind for an alleged\r\nbreach of the contract and the contract between the\r\nparties does not provide for such damages in the event of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">such breach and if the tenor of the contract either\r\nexpressly provides or impliedly indicates that the parties\r\ndid not contemplate damages for such breach, as awarded\r\nby the arbitrator, such an award falls foul of Section 30 (c)\r\nof the Act.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>34. It is also relevant to note that Clause 18\r\nreferred to by the counsel for the respondent also does not\r\nspecify any specific sum or rate at which damages can be\r\nawarded. It is also relevant to note that Clause 23 which\r\nprovides for the duration of the agreement is also silent as\r\nto the duration of the agreement.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">35. For the aforementioned reasons, this court is\r\nof the view that the award of one and a half times the\r\nvalue of the stock due is invalid and liable to be set aside\r\nunder Section 30(c) of the Act.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>37. As far as the claim of the appellant relating to\r\nhis disallowed claim before the arbitrator, this Court is of\r\nthe view that no ground is made out under Section 30 of\r\nthe Act to allow such claim in favour of the appellant.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) The judgment dated 22.07.2016 in AROS.\r\nNo.11/1990 on the file of the Principal Senior\r\nCivil Judge & CJM, Shivamogga is set aside.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(ii) The award dated 03.07.1984 in Arbitration\r\ncase No.18/1984 is set aside in so far as the\r\naward pertaining to one and a half times the\r\nvalue of the stock due quantified at\r\nRs.41,64,723.34 and Rs.49,35,197.03 being\r\nthe interest @ 18% per annum.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iii) No order as to costs.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(iv) Accordingly, the appeal is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '214ee4c09c71b6b6b23b7cc50a1056b5.jpeg', 'bfbd5367ccfb8fb101c5e9b0714ce3e1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-10', 1, '', '', '2023-07-07 14:18:09', '2023-07-10 06:27:14'),
(3175, 'VbP42lUxlHzAOYMQTAkkoaq6u', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Court cannot refuse to release seized passport after acquittal of the accused merely on the ground that an appeal would be filed against the acquittal order. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Francis Zavier Crasto Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 4781 of 2023 decided on 21 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court calling in question an\r\norder dated 05.05.2023 passed in S.C.No.90/2015 rejecting an\r\napplication filed under Section 452 of the Cr.P.C. seeking\r\nrelease of Exhibits P17 and P18, which were passports that\r\nwere made subject matter of the PF.No.39/2015. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The petitioner gets embroiled in a crime, in crime\r\nNo.72/2015 and pursuant to the said registration of the crime,\r\npassports of the petitioner was seized and subjected to\r\nPF.No.39/2015 and marked in S.C.No.90/2015 as Exhibits P17\r\nand P18. The Sessions Court in terms of the order dated\r\n12.04.2023, acquits the petitioner, but does not pass any order </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under Section 452 of the Cr.P.C. with regard to the passports\r\nthat was seized as aforesaid. This drives the petitioner to file\r\nan application invoking Section 452 of the Cr.P.C. for return of\r\nthe passports. The concerned Court rejects the application on\r\nthe ground that the appeal period for preferring an appeal\r\nagainst the order of acquittal, is yet to get over, and therefore,\r\nit cannot be released. It is this order that drives the petitioner\r\nto this Court in the subject petition.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. The issue now lies in a narrow compass. The\r\nacquittal of the petitioner is not in dispute, as it is in terms of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">order dated 12.04.2023, while so doing no order is passed with\r\nregard to P.F.No.39/2015, which were the passports of the\r\npetitioner. An application comes to be filed for such release\r\nand the application comes to be rejected by the concerned\r\nCourt observing as follows:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>\"REASONS\r\n 6. The accuse has filed the instant application\r\nto release his passports seized by the complainant police\r\nin PF.No.39/2015. It is pertinent to mention here that\r\nthe judgment was passed by this court on 12.04.2023.\r\nHence, the appeal period is not yet over. The application\r\nfiled by the accused for release of his passports is\r\npremature. The said passports cannot be released to the\r\ncustody of the accused till the appeal period is over.\r\nFurther, the prosecution has filed objections stating that\r\nthey have applied for certified copy of the judgment\r\npassed by this court and they are in the process of\r\ntaking a decision whether to file appeal or not against\r\nthe judgment passed by this court. In the\r\ncircumstances, the instant application filed by the\r\naccused is not maintainable at this stage.\r\nAccordingly, this point is answered in the\r\nNegative\r\n</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>O R D E R</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The application filed by the accused u/s.452 of\r\nCr.P.C. is hereby rejected. However, liberty is granted to\r\nthe accused to move the application for release of his\r\npassports after the appeal period is over.\"</span><span style=\"font-size: 12pt;\"> </span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. The reason so rendered on the face of it is\r\nerroneous, as the passport that are seized cannot be withheld\r\nafter the acquittal of the petitioner merely because an appeal <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">would be filed against the said order. Therefore, an order\r\ndated 05.05.2023 stands quashed.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '86f961480d876b96917b77ae70f68b15.jpeg', 'faa9536759ac368af7beb5ab6382f9fc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-10', 1, '', '', '2023-07-07 15:16:27', '2023-07-10 12:17:53'),
(3176, 'hNzUO39cpeHIco62yrvBErI3q', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Compensation under the 2013 Land Acquisition Act cannot be paid for the lands acquired under the National Highways Act when the acquisition proceedings were concluded prior to 2013 Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rangegowda Vs Project Director NHAI and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Miscellaneous First Appeal 3673 of 2015 decided on 14 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Jyothi Mulimani.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The facts, put briefly are these:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">It is stated that the Special Land Acquisition Officer vide Preliminary Notification under Section 3A (1) of the National Highways Act, 1956 (for short N.H.Act) acquired the lands owned by the appellant for the formation of 4/6 laning of National Highway NH 48 for a public purpose and the appellant received the compensation as per the prevailing market rate in the locality for the acquisition of land measuring an extent of 72.09 square meters, situated at Kandali Village, Based on the said Notification, the Competent Authority for Land Acquisition determined the amount of compensation as per sub-section (1), (2), (3) & (4) of Section 3G of the National Highways Act, 1956. Finally, the Competent Authority, at the time of determining the compensation, fixed the compensation at Rs.3,09,560/- (Rupees Three Lakh Nine Thousand Five Hundred and Sixty only) per acre for dry land and Rs.1,20,000/- (Rupees One Lakh Twenty Thousand only) per acre for the wetland. The appellant was paid compensation for land and structure. Contending that the compensation awarded by the Special Land Acquisition Officer was very meager, the appellant filed a Claim statement before the Deputy Commissioner, Hassan seeking enhancement of compensation.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Based on the above-said challenges, the following points would arise for my consideration: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space: pre;\">	</span>Is the District Judge right in rejecting the application filed under Section 34 of the Arbitration and Conciliation Act? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>Is the appellant entitled to the extension of the benefits of provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>A reading of section 34 of the Arbitration and Conciliation Act 1996, clearly indicates that it is a provision to enable a person aggrieved with the award to seek for setting aside the award on any one or the other of the enumerated grounds as indicated in sub-section [2] of section 34 of the Arbitration and Conciliation Act 1996.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This section, in conjunction with Section 5 makes it clear that an arbitration award that is governed by Part I of the Arbitration and Conciliation Act 1996 can be set aside only on grounds mentioned under Sections 34 (2) and (3), and not otherwise.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Bearing these principles in mind, I will now consider the point urged on behalf of the appellant about Section 34 of the Arbitration and Conciliation Act 1996. The language is very plain. It is seen that none of the grounds contained in sub-section (2)(a) of section 34 deal with the merits of the decision made by an arbitral award. It is only when the award conflicts with the public policy of India that the merits of an arbitral award are to be looked into under certain specified circumstances. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>It is well settled that a provision for setting aside an award contending that the award is not sustainable in law on any one of the grounds as indicated in Section 34 can never be construed as a provision enabling the land owner to seek enhancement of the compensation amount as determined by the Arbitrator.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The law relating to Section 34 of the Arbitration and Conciliation Act 1996 has been laid down by the Apex Court from time to time. Further, we cannot ignore the parameters laid down in a series of judgments by the Apex Court as to the limitations that a Judge hearing objections to an arbitral award under Section 34 of the Arbitration Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In SSANGYONG’s case, the Apex Court while considering a challenge to an award passed in an international commercial arbitration considered the expansive interpretation given to the “public policy of India” in ONGC LTD VS SAW PIPES LTD popularly known as “SAW PIPES” CASE reported in (2003) 5 SCC 705 and ONGC  LTD  VS  WESTERN  GECO  INTERNATIONAL  LTD, popularly known as “WESTERN GECO” CASE reported in (2014) 9 SCC 263 has done away with, and new ground of “patent illegality”, was introduced which would apply to applications under Section 34 made on or after 23.10.2015.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>As already noted above, the Apex Court has held new ground of “patent illegality”, which would apply to applications under Section 34 made on or after 23.10.2015. But in the present case, the appellant filed a section 34 application before 23.10.2015. Hence, the point urged on behalf of the appellant about patent illegality is not available to the appellant since the application under Section 34 is made before 23.10.2015. Turning now to the other  question  which  arises  namely,  whether  Section 34(2)(A) of the Arbitration and Conciliation (Amendment) Act 2015 applies to the facts and circumstances of the present case. The answer is no. The reason is simple section 34(2)(A) was substituted by an amendment to section 34 with effect from the 23rd day of October 2015. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The law is settled by the Apex Court that the new ground of patent illegality would apply to applications under Section 34 made on or after 23.10.2015. In the present case, the application under Section 34 is made on the 1st day of October 2013. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In my opinion, it is not correct to say that the order passed by the learned Judge of the District Court suffers from infirmity much less any illegality. The District Judge has rightly rejected the application under Section 34 of the Arbitration and Conciliation Act, 1996. In my considered view, the application itself was not tenable. Therefore, the contention about Section 34 is satisfactorily hopeless.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>It is not in dispute that the Land Acquisition Act 1894, has been repealed. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has come into force with effect from the first day of January 2014. The objects and reasons are several. The market value calculated will be multiplied by a factor of two in the rural areas. Solatium will  also  be  increased  up  to  100  percent  of  the  total compensation. The benefits under the new law would be available in all the cases of land acquisition under the Land Acquisition Act, of 1894 where an award has not been made or possession of land has not been taken. The provisions of the New Act can be applied to those existing enactments by a Notification of the Central Government.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>It is pivotal to note that in the present case, the entire land acquisition proceedings concluded in the year 2010 itself i.e., before the commencement of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 repeals only the old Land Acquisition Act and not the National Highways Act 1956. Therefore, The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 would not regulate the acquisition proceedings initiated and concluded under the National Highways Act 1956. Needless to say that the proceedings are concluded much before the commencement of the LARR Act 2013.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Coming now to the question at issue before me about the application of the decision of Tarsem’s case it is noticed that in TARSEM\'s case [2009 (9) SCC 304,] the Hon\'ble Apex Court has dealt with the payment of solatium and interest under the Land Acquisition Act, 1894, and not one under the provisions of the New Act. Needless to say, the Apex Court has held that the solatium and interest be awarded under the old Act and not under the 2013 Act. Hence, the contention of the appellant that the award of solatium and interest under the New Act 2013 and extension of the provisions of the said Act is also satisfactorily hopeless.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>There is one small and last point that requires to be answered by me is whether NAGARAJU’s case applies to the facts and circumstances of the present case. The answer is no for the simple reason that in NAGARAJU\'s case, the lands were acquired in 2016. But in the present case, the lands are acquired before 2015 and I have no hesitation to say that the entire acquisition proceedings are concluded in the year 2010. Hence, the contention urged on behalf of the appellant about the applicability of NAGARAJU\'s case is untenable.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>To summarize, I can say only this much there is no substance in the appeal and it will appear from the records that there are no justifiable grounds for concluding that there is infirmity and illegality in the order passed by the District Judge and the extension of the benefits of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 to the facts and circumstances of the present case. I am of opinion that there is no substance whatsoever in this appeal and it must be dismissed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>As a result, the Miscellaneous First Appeal is dismissed. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c5e9d7174a26baca17f182e90efa613b.JPG', '31f7f70459869035c905989d730b09a2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-08', 1, '', '', '2023-07-07 15:33:41', '2023-07-08 07:24:20');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3171, 'V58GdJqKnvMkca1zJcSFnlUpe', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Compensation for lands notified prior to 1:1:2014 under the KIAD Act, where award is not passed as on 1:1:2014, is to be paid under the 2013 land acquisition Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>S. Sheenappa and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. 108802 of 2016 decided on 18 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">1.<span style=\"white-space: pre;\">	</span>On 05.02.2010, the State Government issued a notification under Section 28(1) of the Karnataka Industrial Area Development Act, 1966 (hereinafter referred to as “KIAD Act”) giving notice of its intention to acquire about 5368-83 acres for the benefit of M/s. Arcelor Mittal India Company Limited, a private limited company.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>On 04.05.2010 the State Government issued a declaration under Section 28(4) of the KIAD Act declaring that an extent of 4864-64 acres were needed to be acquired. 4. It appears that the<span style=\"white-space: pre;\">	</span>Land Value Determination/Assessment Committee had been constituted under the Chairmanship of the Deputy Commissioner for determining the market value of the land in respect of those land owners who had agreed for the determination of the market value and compensation was not only determined but also paid in respect of about 3950 acres, at the rate determined by the Committee. It is stated that compensation in respect of about 80% of the lands acquired had been paid in this mode.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>Petitioners herein, who are the landowners, apparently refused to receive the compensation as determined by the Committee on the ground that compensation to their lands ought to have been paid at a far higher value than the one determined by the Committee.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>Petitioners appear to have contended that the market value of the lands ought to have been determined by taking into consideration the sale statistics of the past three years and compensation at four times of that value ought to have been paid to them.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space: pre;\">	</span>The petitioners, basically, demanded payment of compensation in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, “the 2013 Act”) as is evident by Annexure-C to W.P.Nos.107748- 50/2014.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>The Karnataka Industrial Areas Development Board (for short, “the Board”), however, refused the claim of the petitioners for determination of compensation under the provisions of the 2013 Act by issuing an endorsement dated 07.05.2014 as per Annexure-D. Therefore, one set of petitioners approached this Court by way of a writ petition, in W.P.Nos.107748-50/2014.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>This Court ordered issuance of notice to the respondents and also granted an interim order of stay as prayed for. The interim order that was prayed for was to direct the Board not to pass the award under the provisions of the Land Acquisition Act, 1894 (for short, “the 1894 Act”) and also for stay of the endorsements dated 07.05.2014 and 17.06.2014.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>The petitioners in W.P.No.108802/2016, thereafter, filed a writ petition on 03.11.2016. In the said writ petition, they challenged the endorsement in which it was stated that the provisions of the 2013 Act were inapplicable to the acquisition under the KIAD Act since the notification under Section 28(1) of the KIAD Act had been issued prior to 01.01.2014, the award would be passed only under the 1894 Act. During the pendency of these writ petitions, awards were passed on 18.02.2020 under the provisions of the 1894 Act and also deposited the award amount in the Civil Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>Thereafter, on&nbsp; 25.01.2017,&nbsp; W.P.No.100762/2016 was filed by the three petitioners challenging a similar endorsement by which the Board informed that awards would be passed only under the 1894 Act and not under the 2013 Act. During the pendency of this writ petition also, an award was passed under the 1894 Act and the award amount was also deposited before the Civil Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">12.<span style=\"white-space: pre;\">	</span>The principal contention advanced by all the petitioners in these batch of writ petitions is that, notwithstanding the fact that the notifications issued under Section 28(1) &amp; 28(4) of the KIAD Act had been issued prior to the enactment of the 2013 Act, since awards were not passed till 01.01.2014, by virtue of the repeal of the 1894 Act and the enactment of the 2013 Act, compensation was required to be determined under the provisions of the 2013 Act as envisaged under Section 24(1) of the 2013 Act</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space: pre;\">	</span>Thus, from the above contentions, the principal question that is required to be decided in these writ petitions is:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><i><b><font face=\"Calibri, sans-serif\">“Whether in respect of lands notified prior to 01.01.2014 under the KIAD Act, in respect of which an award had not been passed as on 01.01.2014, awards are required to be passed under the 1894 Act or the 2013 Act as envisaged in Section 24 (1) of the 2013 Act?”</font><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>32.<span style=\"white-space: pre;\">	</span>Thus, from the reading of Section 28 of the KIAD Act, it is clear that the notified lands stand vested with the State on a declaration being published in the gazette and the State is also empowered to take possession of the land and transfer it to the Board even before the compensation is determined and paid to the land owner.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>33.<span style=\"white-space: pre;\">	</span>Section 29 of the KIAD Act provides for payment of compensation. It stipulates that when any land is acquired by the State Government, the State Government is required to pay for such acquisition. It also states when the amount of compensation has been determined by way of an agreement between the State Government and the person to be compensated, it shall be paid in accordance with the agreement.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">34.<span style=\"white-space: pre;\">	</span>In cases where the compensation cannot be determined by way of an agreement, between the State Government and the person to be compensated, the provision stipulates that the State Government is bound to refer the case to the Deputy Commissioner for determination of the amount of compensation to be paid and also to determine the person or persons to whom it should be paid.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>36.<span style=\"white-space: pre;\">	</span>Section 30 of the KIAD Act states that the provisions of the 1894 Act shall mutatis mutandis apply not only in respect of enquiry and award by the Deputy Commissioner but also in respect of reference to Court, apportionment of compensation and payment of compensation. Thus, in respect of conducting an enquiry and passing of an award, the Deputy Commissioner is required to apply the provisions of the 1894 Act as per the mandate of Section 30 of the KIAD Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">37.<span style=\"white-space: pre;\">	</span>The admitted factual position, in this case, is that though the declaration under Section 28(4) of the KIAD Act was issued on 04.05.2010, in respect of petitioners herein, the compensation was admittedly neither determined by agreement nor was an award made by the Deputy Commissioner till 01.01.2014. Thus, though a declaration had been issued in 2010 and the land stood vested in 2010 itself, the compensation was not paid to the petitioners, either by way of an agreement or by way of an award made by the Deputy Commissioner under the provisions of the 1894 Act.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>38.<span style=\"white-space: pre;\">	</span>It would be pertinent to state here that three years after the issuance of a declaration under Section 28(4) of the KIAD Act, on 26.09.2013, the 2013 Act received the assent of the President. The 2013 Act, was, however, brought into force by the issuance of a notification on 19.12.2013. This notification stated that the 2013 Act would come into force with effect from 01.01.2014.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>39.<span style=\"white-space: pre;\">	</span>It may also be stated here that on the enactment of the 2013 Act, by virtue of Section 114 of the 2013 Act, the 1894 Act was repealed. In other words, on the coming into force of the 2013 Act, i.e., on and from 01.01.2014, the 1894 Act was repealed as per Section 114 of the 2013 Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>40.<span style=\"white-space: pre;\">	</span>The question that is raised in this case is, on and after 01.01.2014, whether an award could be passed under the 1894 Act, despite its repeal or whether the award is to be passed under the reenacted statute i.e., the 2013 Act. This controversy, in the present case, has arisen because of the intervening legislative event i.e., the repeal of the 1894 Act and the coming into force of the 2013 Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>41.<span style=\"white-space: pre;\">	</span>As stated above, according to the petitioners, on and from 01.01.2014, awards would have to be passed only in accordance with the provisions of the 2013 Act, as mandated under Section 24(1)(a) of the 2013 Act, in cases where an award has not been passed by then. However, it is the case of the Board and also that of the beneficiary that notwithstanding the repeal of the 1894 Act, the award would still have to be made only under the repealed 1894 Act and not under the 2013 Act, since the notifications for acquisition had been issued prior to the repeal of the 1894 Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>56.<span style=\"white-space: pre;\">	</span>It is to be borne in mind that Section 8 of the GC Act would apply only to those cases where a provision is repealed and reenacted. If a provision is repealed but is not reenacted, Section 8 of the GC Act would have no application and the repealed provision would, therefore, continue to apply to the enactment in which a reference has been made to the repealed provision.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\">57.<span style=\"white-space: pre;\">	</span>In the present case, the entire 1894 Act was repealed and reenacted afresh as the 2013 Act. Thus, the condition laid down in Section 8 of the GC Act that whenever</font></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">a provision is repealed and reenacted would be attracted. Resultantly, by virtue of the rule of construction stipulated in Section 8 of the GC Act, any reference in the KIAD Act to the provisions of the 1894 Act would have to be necessarily construed as a reference to the reenacted provisions of the 2013 Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">58.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; white-space: pre;\">	</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the 1894 Act, Sections 11, 23, 23A and 24 were the provisions in respect of an enquiry and award and in the reenacted 2013 Act, Sections 27 to 30 are the provisions in respect of an enquiry and award.Thus, the provisions relating to enquiry and award in the 1894 Act referred to in the KIAD Act will have to be construed as a reference to the provisions relating to an enquiry and award under the 2013 Act by virtue of Section 8 of the GC Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>60.<span style=\"white-space: pre;\">	</span>Thus, on the coming into force of the 2013 Act, whenever an award is required to be passed in respect of a land notified under the provisions of the KIAD Act, by the mandate of Section 8 of the GC Act, an award can be passed only under the provisions relating to the passing of an award under the 2013 Act and an award cannot be passed in accordance with the repealed provisions relating to award in the 1894 Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>61.<span style=\"white-space: pre;\">	</span>Section 24 of the 2013 Act is a provision relating to lapsing of acquisition which were initiated under the 1894 Act in certain situations. This provision basically seeks to govern the fate of acquisitions which were initiated under the 1894 Act and which were not yet concluded as on the day, the 2013 enactment came into force. In other words, it governs the transitory phase between the repeal of the 1894 Act and the coming into force of the 2013 Act in respect of lands which have been notified for acquisition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>63.<span style=\"white-space: pre;\">	</span>Sub-section (1) of Section 24 of the 2013 Act has two parts. The first part i.e., Section 24(1)(a), deals with a situation where no award is passed under the 1894 Act as on the date of the enactment of the 2013 Act. In such an event, it mandates that the award is required to be made under the 2013 Act. Section 24(1)(a) basically ensures that the land losers, who were not offered compensation by passing of an award, in respect of notifications issued immediately prior to enactment of the 2013 Act, would be entitled to an award being passed under the 2013 Act, which is undoubtedly more beneficial.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>64.<span style=\"white-space: pre;\">	</span>The second part of Section 24 (1) of the 2013 Act i.e., Section 24 (1) (b) deals with a situation where an award is already passed (under the 1894 Act) as on the date of the enactment of the 2013 Act. It states that in such an event, the proceedings would continue under the 1894 Act itself, and a legal fiction is created to the effect that the 1894 Act should not be construed as repealed and the 1894 Act continues to operate, even though it had stood repealed as on 01.01.2014.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>65.<span style=\"white-space: pre;\">	</span>Thus, sub-section (1) of Section 24 of the 2013 Act itself indicates under what circumstances the 1894 Act is to be considered repealed or to be considered prevailing. If an award is not passed, the provision indicates that the award is to be made under the 2013 Act, thereby implying that the provision of the 1894 Act stands repealed in the context of that situation. If, however, an award is already passed, the provision itself states that the proceedings would continue under the provisions of the 1894 Act itself and in that context, it will have to be assumed that the 1894 Act was not repealed at all.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">66.<span style=\"white-space: pre;\">	</span>This distinction carved out in sub-section (1) of Section 24 of the 2013 Act itself establishes when the provision under the 1894 Act would cease to operate and when the provision of the 1894 Act would continue to operate.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">67.<span style=\"white-space: pre;\">	</span>Normally, by virtue of Section 8 of the GC Act, any reference to a provision of a repealed enactment in another enactment would have to be construed as a reference to the reenacted provision. However, in the case of Section 24 (1) (b) of the 2013 Act, there is a slight deviation made from this rule of construction. The Legislature, by expressly stating in Section 24 (1) (b) of the 2013 Act that, in cases where an award is already passed, the reference to the repealed provision of the 1894 Act, in the KIAD Act would have to be construed as a reference to the repealed provision itself and not the reenacted provision relating to enquiry and award in the 2013 Act. Thus, in cases where an award is not passed, the Legislature has clearly indicated a deviation from the normal rule of construction found in Section 8 of the GC Act.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>74.<span style=\"white-space: pre;\">	</span>In the present set of petitions, the contention being advanced by the petitioners is not one of lapsing of acquisition by virtue of Section 24 (2) of the 2013 Act i.e., a situation where an award had been passed within prior to 5 years of the commencement of the 2013 Act and thereafter possession of that land not being taken or that the compensation had not been paid to the land losers. The contention advanced in these cases, is simply, as to whether the provisions of the 1894 Act have to be applied or the provisions of the 2013 Act have to be applied, in the matter of passing of an award in cases where an award had not been passed in respect of notified lands as on 01.01.2014.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">75.<span style=\"white-space: pre;\">	</span>It must be stated here that sub-section (1) of Section 24 of the 2013 Act does not deal with the lapsing of acquisition at all. It only prescribes the statute that is required to be applied in the matter of passing of an award, if an award is not passed as 01.01.2014 and the statute that is to be applied for the continuation of the proceedings, if an award has already been passed as on 01.01.2014.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>81.<span style=\"white-space: pre;\">	</span>As stated above, it is only if an award has been passed on or after 01.01.2009 (five years prior to the commencement of the 2013 Act) and either the physical possession of the land is not taken or the compensation is not paid to the land loser, the question of lapsing of acquisition would be attracted.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>82.<span style=\"white-space: pre;\">	</span>Thus, for the non-passing of an award as on the date of commencement of the 2013 Act or if an award is already passed within five years of the commencement of the 2013 Act, the question of lapsing of acquisition would not arise at all. 83.<span style=\"white-space: pre;\">	</span>However, in the present case, it is not the case of the petitioners that there was a lapsing of the acquisition. Consequently, the decisions, upon which reliance was placed by the Board and the beneficiary, which deal only with lapsing of acquisition under Section 24 (2) of the 2013 Act, would have no application at all. The limited prayer of the petitioners is to direct the Board to determine and pay the compensation under the provisions of the 2013 Act, since admittedly no awards were made as on 01.01.2014.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>87.<span style=\"white-space: pre;\">	</span>In the case of an acquisition under the KIAD Act, on a declaration being made under Section 28(4) of the KIAD Act, the lands stand vested with the State Government absolutely free from encumbrances, even though an award is yet to be passed in respect of the lands. In the light of the judgment rendered in the case of Offshore Holdings cited above, once the lands vest with the State Government, the question of lapsing of the acquisition of the lands would never arise. Thus, in the case of an acquisition under the KIAD Act, the lapsing of acquisition for non-passing of an award would never arise since the lands stand vested in the State on a declaration being published under Section 28 (4) of the KIAD Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>88.<span style=\"white-space: pre;\">	</span>It may also be pertinent to state here that unlike the BDA Act in which a time limit has been prescribed for execution of the scheme under Section 27 of the BDA Act, there is no provision under the KIAD Act mandating the Board to utilize the lands acquired by it for the purpose for which it was acquired in a given time frame failing which there would be a lapsing of the acquisition. Therefore, there is no question of lapsing of acquisition of the lands notified under the KIAD Act at all primarily because the notified lands stand vested with the State immediately on the issuance of a declaration under Section 28 (4) of the KIAD Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>94.<span style=\"white-space: pre;\">	</span>To put it in the context of this case, if the provisions of the 2013 Act are to be applied for acquisition under the KIAD Act, whether the object and purpose of KIAD Act would be defeated will have to be examined.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>95.<span style=\"white-space: pre;\">	</span>The controversy, as stated above, has arisen only because of the 1894 Act being replaced by the 2013 Act. Admittedly, the KIAD Act only refers to certain aspects of the 1894 Act which are to be applied for acquisition under the KIAD Act. The reference made in Section 30 of the KIAD Act is a general reference relating to enquiry and award, reference to Court, apportionment and payment of compensation, etc and no specific provisions of the 1894 Act is specified in Section 30 of the KIAD Act. It will, therefore, have to be held that Section 30 of KIAD Act, whereby certain provisions of the 1894 Act are made applicable would only be a case of legislation by reference and not a legislation by incorporation.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>100.<span style=\"white-space: pre;\">	</span>To sum up, a reading of Section 30 of the KIAD Act makes it clear that there is a general reference to the provisions of the 1894 Act and no specific provisions of the 1894 Act have been stated in Section 30 of the KIAD Act. It is, therefore, clear that Section 30 of the KIAD Act is only a piece of “legislation by reference” and not a “legislation by incorporation”. If it is a case of legislation by reference, the amendments to the former Act (1894 Act) would become applicable to the KIAD Act. If, however, specific provisions of the 1894 Act had been specifically referred to or incorporated in Section 30 of the KIAD Act, then an argument could have probably been made that those incorporated provisions alone would be applicable and any subsequent amendment made to the incorporated provision or its repeal would continue to apply.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>101.<span style=\"white-space: pre;\">	</span>As stated above, the question of lapsing of acquisition under the KIAD Act would not arise in case of an acquisition under the KIAD Act since the lands stand vested with the State immediately on the declaration being issued under Section 28 (4) of the KIAD Act, unlike under the 1894 Act, where the lands stand vested in the State only on the passing of the award and on taking possession of the lands.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>110.<span style=\"white-space: pre;\">	</span>In the light of this clear enunciation of law by the Constitution Bench that in case, an award is not made as on 01.01.2014 (i.e., the date of commencement of the 2013 Act), the compensation would have to be necessarily determined under the provisions of the 2013 Act. This conclusion of the Constitution Bench cannot be overcome by recourse to an argument that in cases where the question of lapsing of the acquisition was raised, the Apex Court as well as this Court had held that the provisions of the 2013 Act are inapplicable in cases of acquisition by the KIADB.&nbsp;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>113.<span style=\"white-space: pre;\">	</span>It is an indisputable fact that after the KIAD Act was enacted in the year 1966, there has been an amendment made to the 1894 Act in the year 1984. By the said amendment in the year 1984, Section 23 of the original 1894 Act was amended and sub-section (1-A) was inserted into Section 23 and sub-section (2) was amended.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>114.<span style=\"white-space: pre;\">	</span>By the insertion of sub-section (1-A), amount at 12% p.a. of the market value from the date of publication of the preliminary notification under Section 4 (1) of the 1894 Act till the date of the award or the date of taking of possession, whichever was earlier, was granted.<br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>117.<span style=\"white-space: pre;\">	</span>If the argument of the Board was that the provisions of the 1894 Act as it stood only should be adopted, obviously, the Board would not have adopted the amendments made in the year 1984 to the 1894 Act and would not have paid the benefits conferred under the 1984 amendment. In effect, the Board, by incorporating the benefits conferred under 1984 amendment in the awards passed thereafter, has basically accepted the fact that Section 30 of the KIAD Act was a legislation by reference and not a legislation by incorporation. It has also thereby accepted that any amendment made to the Principal Act i.e., the 1894 Act insofar as it relates to enquiry and award will also have to be applied to the awards passed under the KIAD Act. In this view of the matter, the argument of the Board and the beneficiary that Section 30 of KIAD Act was a case of legislation by incorporation cannot be accepted.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>119.<span style=\"white-space: pre;\">	</span>An argument was also advanced by the Board and the beneficiary that the mandate of Section 24 (1) of the 2013 Act can be applied only in cases where the land acquisition proceedings are initiated under the 1894 Act and the mandate of Section 24 (1) of the 2013 Act would have no application for acquisition of lands under any other enactment.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>120.<span style=\"white-space: pre;\">	</span>It is to be stated here that, in this case, though the land acquisition proceedings were initiated under the KIAD Act, nevertheless, in respect of the conclusion of the acquisition proceedings, such as holding an enquiry and passing an award, reference to the court, apportionment of compensation and payment of compensation, it is only the provisions of the 1894 Act which are made applicable. The expression “initiated” in Section 24 of the 2013 Act would have to necessarily include the conclusion of the land acquisition proceedings and an artificial divide cannot be constructed between “initiated” and the conclusion of the acquisition proceedings. In other words, even if the land acquisition process have been initiated under the 1894 Act, since they would have to be concluded only as per the provisions of the 1894 Act, even in respect of cases where land acquisition proceedings are initiated under the KIAD Act, the provisions of Section 24 (1) of 2013 would apply.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>121.<span style=\"white-space: pre;\">	</span>Lastly, it is to be stated here that in W.P.No.107748- 50/2014, an interim order was granted restraining the Board from passing an award under 1894 Act. Similar orders were, however, not passed in respect of other writ petitions. However, the fact remains that there was a restraint on the Board to pass an award under 1894 Act and despite being aware of this interim order, the Board has proceeded to pass an award under the 1894 Act in some cases. In my view, this conduct of the Board cannot be commended. When the Board was aware of the fact that in one set of writ petitions, there was a restraint order to pass an award under the 1894 Act, it ought not to have disregarded this interim order and should not have passed an award under the 1894 Act in respect of lands in which there was no interim order. Be that as it may, since it is held that the Board is required to pass an award in respect of lands acquired by it only under the 2013 Act, notwithstanding the fact that the notifications had been issued prior to 01.01.2014, it would be necessary to direct the Board to pass an award afresh in accordance with the provisions of 2013 Act.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>122.<span style=\"white-space: pre;\">	</span>As a result, it is hereby held that in respect of lands notified prior to 01.01.2014 under the KIAD Act and in respect of which, an award has not been passed as on 01.01.2014, the awards are required to be passed under Section 24 (1) (a) of the 2013 Act only.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>123.<span style=\"white-space: pre;\">	</span>The question framed in these petitions are accordingly answered.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>124.<span style=\"white-space: pre;\">	</span>The awards, if any, passed under the 1894 Act are hereby declared to be void and shall not be acted upon. If, however, the petitioners have withdrawn any sums deposited pursuant to the awards passed under the 1894 Act, the amounts withdrawn by them shall be adjusted as against the award that is required to be passed under the 2013 Act as ordered above.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>125.<span style=\"white-space: pre;\">	</span>Accordingly, the writ petitions are allowed. The impugned endorsements by which the Board had stated that awards will have to be made only under the 1894 Act are quashed and the Board shall now pass an award in respect of lands which are the subject matter of these writ petitions as provided under the 2013 Act.</b></font></p>', '24af16d8161c7376ac3d8738ebbeaed6.JPG', '9ca174d1f07f58df5729576c36875ee9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-07', 1, '', '', '2023-07-07 13:43:54', '2023-07-07 13:43:54');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3178, 'hak7DeBYVzfKQlHJ2tbHvu7sB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Land Reforms Act. Trustee is the owner and custodian of Trust property and cannot claim occupancy rights under Section 45 of the Act in respect of the Trust property. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gajanna and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 100717 of 2018 decided on 4 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Facts leading to filing of this writ petition as\r\nrevealed from the records, narrated briefly are; the\r\nlands bearing Sy.No.125/12A, 125/12B, 125/13,\r\n125/14A and 125/14B of Melin Idagunji village,\r\nHonnavar taluk, Uttar Kannada district (hereinafter\r\nreferred to \'the lands in question\'), originally belonged\r\nto one Sri.Narayana Bhat. It appears that he had\r\nleased the lands in question by way of granting\r\nmoolageni rights to Smt.Mahalaxmi Hegde prior to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1921. Under a registered deed dated 13.10.1921,\r\nSmt.Mahalaxmi Hegde transferred the moolageni\r\nrights in favour of Shivaram Narayana Hegde and after\r\nthe death of Shivaram Narayan Hegde, his daughters\r\nnamely Smt.Seetabai and Smt.Savitri succeeded to\r\nthe lands in question and continued as mulageni\r\ntenants. In a partition between Smt.Seetabai and\r\nSmt.Savitri, the lands in question, of which moolageni\r\nrights were jointly held by the sisters, was allotted to\r\nthe share of Smt.Seetabai, who subsequently subleased her rights over the lands in question under a\r\nregistered sagavalli deed in favour of Noidabing Ram\r\nNaikon 23.02.1929.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. It appears that in the year 1935, the\r\noriginal landlord (Moolidar) of the lands in question,\r\ntransferred his ownership rights in the name of the 6th\r\nrespondent-Trust. Thereby the 6th respondent became\r\nthe land owner of the lands in question. In the year\r\n1964, proceedings were initiated in suit\r\nO.S.No.310/1964 by petitioner No.1 against Noidabing </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Ram Naik, seeking possession of the lands in question\r\non the ground that Noidabing Ram Naik had failed to\r\nfulfill the terms and conditions of lease. The said suit\r\nwas decreed on 20.08.1966 and execution\r\nproceedings in execution case No.41/1968 was filed by\r\npetitioner No.1 herein. In the said proceedings,\r\npossession of the property was handed-over to\r\npetitioner No.1 on 13.04.1971.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. After coming into force of the Act No.1 of\r\n1974, petitioner No.1 and his brother Vishnu Sabhait\r\nhad filed Form No.7 on 26.08.1974, claiming\r\noccupancy rights of the lands in question. It appears\r\nthat the 1st petitioner\'s brother Vishnu Sabhait also\r\nhad filed separate Form No.7 on 26.12.1974 claiming\r\noccupancy rights of the lands in question and during\r\nthe pendency of the claim petitions, Vishnu Sabhait\r\nhad died and his legal representative-petitioner No.2\r\nherein was brought on record. The 2nd respondentLand Tribunal by order dated 10.07.1979 vide\r\nAnnexure-J after considering the claim made in both <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">applications, had granted occupancy rights of the\r\nlands in question exclusively in the name of petitioner\r\nNo.1 and had granted occupancy rights of certain\r\nother items of lands in favour of 2nd petitioner. The\r\nsaid order was questioned by respondent No.3 herein\r\nbefore this Court in W.P.No.6485/1999 and this Court\r\nhad allowed the said petition vide order Annexure-K\r\ndated 14.12.2000 and while quashing the order of the\r\nTribunal insofar as it relates to granting occupancy\r\nrights in respect of the lands in question in favour of\r\npetitioner No.1 herein, had remanded the matter to\r\nthe Tribunal to consider the claim of petitioner No.1\r\nherein by holding a de novo enquiry after hearing all\r\nthe interested parties.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. After Act No.1 of 1974 coming into force\r\nwith effect from 01.03.1974, all lands held by or in\r\npossession of the tenants immediately prior to the\r\ndate of commencement of the Amendment Act, other\r\nthan the lands held by them under the lease permitted\r\nunder Section 5 of the Act shall be with effect on and\r\nfrom the date of amendment coming into force stands\r\ntransferred to and vest in the State Government, as\r\nprovided under Section 44 of the Act of 1961. Section\r\n45 provides that every person, who was a permanent\r\ntenant, protected tenant, other tenant or a subtenant, who lawfully sub-let with effect on or from the\r\ndate of vesting, be entitled to be registered as an\r\noccupant in respect of the lands of which he was a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">permanent tenant, protected tenant, other tenant or\r\nsub-tenant before the date of vesting and which he\r\nhas been cultivating personally</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. Therefore from the date the 1st petitioner\r\nwas appointed as trustee of the respondent No.6-\r\nTrust, the properties of the Trust vested with him and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">he was a caretaker of the Trust along with other\r\ntrustees from the date of his appointment as Trustee.\r\nThe relationship between Noidabing Ram Naik and\r\npetitioner No.1 was that of a tenant and landlord.\r\nSection 2(A)(21) of the Act of 1961, defines the word\r\n\'Land-owner\' and from the reading of the same, it is\r\nseen that the \'land-owner\' means and includes\r\n\'trustee\'. Therefore, even for the purpose of the Act of\r\n1961, the petitioner No.1, who is a trustee with effect\r\nfrom 04.11.1963, becomes land owner of the lands in\r\nquestion with effect from the said date. Therefore, the\r\nproceedings initiated by petitioner No.1 against\r\nNoidabing Ram Naik is required to be considered as\r\none initiated by the land owner against the tenant for\r\nhaving violated the terms and conditions of the lease\r\ndeed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. It is not in dispute that the 1st petitioner\r\nwho was appointed as a trustee of respondent No.6-\r\nTrust, continued to be in the said post even after\r\ncoming into force the Act No.1 of 1974 and as on the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">date of he filing the application in Form No.7 claiming\r\noccupancy rights of the lands in question, he was a\r\ntrustee of 6th respondent-Trust. The 1st petitioner by\r\nvirtue of Section 2(A)(21) of the Act of 1961, had\r\nattained status of \'land owners\' of the lands in\r\nquestion with effect from the date of his appointment\r\nas a trustee of respondent No.6 and he could not have\r\nfiled Form No.7 claiming occupancy rights of the lands\r\nin question, as he cannot be considered as a tenant of\r\nthe lands in question who is entitled to be granted\r\noccupancy rights as provided under Section 45 of the\r\nAct of 1961.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. In the case of Cochin Devaswom(supra),\r\nthe Hon\'ble Supreme Court has observed that it is the\r\nduty of the trustees to protect the property of the\r\ntemple. At paragraph 10 of its judgment, the Hon\'ble\r\nSupreme Court has observed as follows:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\"10. The properties of deities, temples and\r\nDevaswom Boards, require to be protected and\r\nsafeguarded by their Trustees/Achaks/\r\nSebaits/employees. Instances are many where\r\npersons entrusted with the duty of managing\r\nand safeguarding the properties of temples,\r\ndeities and Devaswom Boards have usurped and\r\nmisappropriated such properties by setting up\r\nfalse claims of ownership or tenancy, or adverse\r\npossession. This is possible only with the passive\r\nor active collusion of the concerned authorities.\r\nSuch acts of \'fences eating the crops\' should be\r\ndealt with sternly. The Government, members or\r\ntrustees of Boards/Trusts, and devotees should\r\nbe vigilant to prevent any such usurpation or\r\nencroachment. It is also the duty of Courts to\r\nprotect and safeguard the properties of religious\r\nand charitable institutions from wrongful claims\r\nor misappropriation.\"</i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. In the case of Pujari Utthan (supra), the\r\nHon\'ble Supreme has held that merely for the reason\r\nthat name of Pujari or trustees is found in the records\r\nof the land belonging to the Temple, they cannot claim\r\ntitle of the religious property and the property always\r\nbelongs to the temple.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. In the case of Krishnanand Shivaram\r\nBhat (supra), in almost identical circumstances\r\nwherein forefathers of the claimants were trustees of\r\nthe Trust, which owned the property, this Hon\'ble\r\nCourt has observed in paragraph 7 as follows:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i> \"7. As far as the decision relied on by the\r\nlearned Counsel for the petitioner reported in\r\nAIR 1964 SC 1320, there is no dispute as to the\r\nproposition of law laid down by the Apex Court\r\nas enumerated in para-6, in relation to what\r\nconstitutes the deemed tenancy. The ratio of the\r\njudgment is that a person lawfully cultivating\r\nthe land belonging to another need not require\r\nany consent or authority derived directly from\r\nthe owner. In this case, admittedly, the trust is\r\nthe owner, which falls within the definition of\r\nSection 2(21) of the Act wherein the land owner\r\nhas been defined which means \"an owner of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">land and includes a trustee or mortgagee with\r\npossession thereof. In this case, there is a\r\nregistered trust constituted and it holds land. It\r\nis not the case of the petitioner that he is\r\ncultivating the land under the trust. It is the\r\nspecific case of the petitioner that he is\r\ncultivating the lands under the diety. Both the\r\nLand Tribunal as well as the Appellate Authority\r\nhave disbelieved the same in view of his\r\nadmission in the evidence lead before the Land\r\nTribunal. The definition of \'land owner\' includes\r\nthe trust, and to become deemed tenant, as\r\nprovided under Section 4, the minimum that is\r\nrequired is, a person must be cultivating the\r\nland lawfully belonging to another person. Here,\r\nanother person is the owner within the meaning\r\nof land owner\' defined under Section 2(21) of\r\nthe Act. The petitioner is not able to point out,\r\nthat he is cultivating under the trust as a tenant\r\nand no documentary evidence is produced to\r\nshow that his cultivation is lawful cultivation\r\nwith or without consent of the trust, but his case\r\nis otherwise, that he is cultivating under the\r\ndeity. This contention has been negatived\r\nconcurrently by both Land Tribunal and the\r\nAppellate Authority\"</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. The conduct of the earlier trustees of the\r\nrespondent No.6 including the petitioner No.1 herein\r\nwas not only deprecated by this Court in\r\nW.P.No.6485/1995, but the same was also taken note\r\nof by the Hon\'ble Supreme Court in the case of\r\nShivaram Narayana Bhat (supra) and in paragraph <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3, the Hon\'ble Supreme Court has observed as\r\nfollows:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n\"3. The contemnors 1 and 2 purport and\r\nmasquerade as trustees of the temple. There\r\nwere several instances of mismanagement by\r\nsaid contemnors 1 and 2 which included\r\nusurpation of the trust properties. This has been\r\nrecorded by the High Court in order dated 14-\r\n12-2000 passed in W.P. No. 6485 of 1999 which\r\norder was not challenged by respondents 1 and\r\n2 and attained finality. Copy of the order dated\r\n14-12-2000 in W.P. No. is annexed hereto and\r\nmarked as Annexure-P2.\"</span><span style=\"font-size: 12pt;\"> </span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>It is in this background, taking into consideration the\r\nconduct of the trustees of respondent No.6-Trust, the\r\nHon\'ble Supreme Court in Shivaram\'s case (supra)\r\nhas appointed the District Judge of Karwar as the\r\nreceiver in respect of Vinayaka Temple, which was\r\nmanaged by the Trust. It has been submitted by the\r\nlearned counsels appearing for respondent Nos.3, 6\r\nand by the learned Additional Government Advocate, it\r\nis the learned District Judge of Karwar, who is now taking care of the property of the Trust in his capacity\r\nas receiver appointed by the Hon\'ble Supreme Court.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n24. In view of the aforesaid analysis of the\r\nmatter, I am of the considered view that Tribunal was\r\nfully justified in rejecting the 1st petitioner\'s\r\napplication for grant of occupancy rights of the lands\r\nin question.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. Therefore, I do not find any merit in the\r\ncontention of the learned counsel for the petitioners\r\nthat even if the 1st petitioner was found to be\r\ndisqualified for grant of occupancy rights of the lands\r\nin question, the Tribunal ought to have considered the\r\nclaim of Vishnu Sabhait, who had filed a separate\r\nForm No.7 claiming occupancy rights of the lands in\r\nquestion.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. Under these circumstances, I do not find\r\nany merit in this writ petition. The Land Tribunal\r\nhaving appreciated the oral and documentary evidence\r\navailable on record, has rightly held that the 1st <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner who was a trustee of the respondent No.6-\r\nTrust as on 01.03.1974, the date on which Act No.1 of\r\n1974 came into force, could not have maintained his\r\nclaim under Form No.7, and has rightly dismissed the\r\nclaim made by the 1st petitioner for grant of occupancy\r\nrights of the lands in question. I do not find any\r\nillegality or irregularity in the said order. Accordingly,\r\nthe writ petition is dismissed. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1a0db7c102c44e33e4d3701047e41ae2.jpeg', '7cf8783b99c0fd4a16b22b1150341c20.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-10', 1, '', '', '2023-07-08 21:38:14', '2023-07-10 03:22:30'),
(3179, 'x26LL47guabJs0lpH9QE5bbb5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Unless the factum of Benami transaction is established, property purchased in the name of female becomes her absolute property. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R. Raja Rao Kshirasagar  Vs Sadguna Bai and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R.F.A 2036 of 2011 decided on 19 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Ashok S. Kinagi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. Brief facts leading rise to filing of this appeal are as under:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The plaintiffs filed a suit for partition and separate possession of their share in respect of property bearing site No.8 (Old No.4) measuring East to West 30 feet and North to South 50 feet totally measuring 1500 sq. ft. formed out of Sy.No.19 situated at erstwhile Gangenahalli, now Ganganagar behind Hebbal Binny Mills, Bangalore. It is the case of the plaintiffs that they are the daughters of one Srinivasa Rao and defendant Nos.1 and 2 are their brothers and defendant No.3 is their mother. Further, Srinivasa Rao joined military service as Subedar Major in the Army drawing a salary of Rs.3,500-4,000/- per month and later on he joined Indian Telephone Industries, Bangalore as Security Officer and was drawing salary of Rs.2,500/- per month and he died during the year 1980 when he was in service. In the year 1967, late Srinivasa Rao purchased the suit schedule property in the name of his wife - Smt. Kamala Bai i.e., defendant No.3 and constructed a building in the year 1972 and after the death of Srinivasa Rao, defendant No.1 - Sri R.Raja Rao Kshirasagar was appointed in ITI during the year 1980 on compassionate grounds and he was getting a salary of Rs.300-500/- per month. At the time of purchasing the suit schedule property, defendant No.1 had just attained the age of majority and defendant No.1 had no independent income whatsoever. Late Srinivasa Rao borrowed loan from one Ramachandra Rao by pledging the title deeds of the suit schedule property during the year 1971 for Rs.4,000/- for family necessities i.e., to celebrate the marriage of Smt. Shantha Bai who is plaintiff No.2. Defendant No.3 had no absolute title over the suit schedule property and in order to deprive the legitimate claim of the plaintiffs, she has gifted the suit schedule property under a registered gift deed dated 30.03.2000 in favour of defendant No.1 and that on coming to know about the said fact, the plaintiffs got issued a legal notice to the defendants during November 2001 seeking share in the suit schedule property. The said notice was returned unserved with a shara as \'not claimed\'. Defendant Nos.2 and 3 gave reply denying the averments made in the legal notice. The plaintiffs filed a suit for partition and separate possession and also sought for declaration that the registered gift deed dated 30.03.2000 executed by defendant No.3 - Smt. Kamala Bai in favour of defendant No.1 was null and void and not binding on the plaintiffs. Hence, the cause of action arose for the plaintiffs to file a suit for partition and separate possession.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>The following points arise for my consideration: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1)<span style=\"white-space: pre;\">	</span>Whether the plaintiffs prove that the suit schedule property was purchased in the name of defendant No.3 out of the income of late Srinivasa Rao? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2)<span style=\"white-space: pre;\">	</span>Whether the plaintiffs prove that the suit schedule property was purchased in the name of defendant No.3 as a benamidar? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3)<span style=\"white-space: pre;\">	</span>Whether the plaintiffs prove that the plaintiffs have got a share in the suit schedule property, if so to what share? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4)<span style=\"white-space: pre;\">	</span>Whether defendant No.1 proves that the suit is not maintainable in view of Section 4 of the Prohibition of Benami Property Transactions Act, 1988?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 5)<span style=\"white-space: pre;\">	</span>Whether defendant No.1 proves that the judgment and decree passed by the trial Court is perverse and arbitrary and call for interference? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6)<span style=\"white-space: pre;\">	</span>What order or decree?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space:pre\">	</span>Point Nos.1 and 2</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>22.<span style=\"white-space:pre\">	</span>In the present case, defendant No.3 continuous to be the owner till the property transferred to Ramachandra Rao More and thereafter, subsequently the said property was repurchased in the name of defendant No.3. Defendant No.3 has executed a registered gift deed in favour of defendant No.1. There is a presumption under Section 3 of the PBPT Act, wherein the property was purchased in the name of person, it is presumed that he or she is the absolute owner of the suit property.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 23.<span style=\"white-space:pre\">	</span>It is the case of the defendants that defendant No.3 has purchased the property under a registered sale deed. It is necessary to consider Section 14(1) of the Act, which reads as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“14. Property of a female Hindu to be her absolute property.- (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>24.<span style=\"white-space:pre\">	</span>The principle laid down by the Act is read over by the Court in various comprehensive manner, since the said Act overwrites the old law of Streedhana in respect of the properties possessed by a female Hindu. Section 14(1) of the Act contemplates a female Hindu, who, in the absence of this provision, would have been limited owner of the property will now become full owner of the same by virtue of this section. The object of the section is to extinguish the estate called “limited estate” or “widow’s estate” in Hindu law and to make a Hindu woman, who under the old law would have been only a limited owner a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>25.<span style=\"white-space:pre\">	</span>Learned counsel for defendant No.1 has placed the reliance on the judgment of the Hon\'ble Apex Court in the case of Gangamma (Supra) and also placed reliance on the judgment of this Court in the case of Smt. Neelawwa (Supra), wherein the Division Bench of this Court has held that the properties purchased by Hindu widow with savings from joint family lands prima facie should be regarded as her own self-acquisition unless the person claiming a share in them has pleaded and proved that the widow treated them as an accretion to joint family estate. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26.<span style=\"white-space:pre\">	</span>Further, he has also placed reliance on the judgment of Co-ordinate Bench of this Court in the case of Somawwa (Supra), wherein it has held that if the widow purchased some property, the normal inference is that it is her own property. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>27.<span style=\"white-space:pre\">	</span>From the perusal of the records and also the law laid down by this Court as well as by the Hon\'ble Apex Court, admittedly, defendant No.3 had purchased the property under a registered sale deed and subsequently, defendant No.3 had executed a registered sale deed in favour of Ramachandra Rao More and thereafter, it was repurchased by defendant No.3 from Ramachandra Rao More under a registered sale deed in the year 1978. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>28.<span style=\"white-space:pre\">	</span>From the perusal of the records it discloses that the said property is owned and possessed by defendant No.3 and the said property was not purchased out of the income of late Srinivasa Rao. Therefore, plaintiffs have failed to prove that the suit schedule property was purchased in the name of defendant No.3 out of the income of late Srinivasa Rao and the plaintiffs have also failed to prove that the suit schedule property was purchased in the name of defendant No.3 as a benamidar.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> In view of the above discussion, I answered point Nos.1 and 2 in the negative.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>29.<span style=\"white-space:pre\">	</span>Point No.3:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>As point Nos.1 and 2 are answered against the plaintiff holding that the suit schedule property is not the self acquired property of Srinivasa Rao. Hence, it is the self acquired property of defendant No.3 and defendant No.3 being the absolute owner, the plaintiffs have no right to claim a share in the suit schedule property. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In view of the above discussion, I answered point No.3 in the negative.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>30.<span style=\"white-space:pre\">	</span>Point No.4: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The defendant has taken a specific contention that the suit is not maintainable under Section 4 of PBPT Act, which reads as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i> \"4. No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.\" </i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>As observed above, this Court held that the said property is not a benami property. It is the self acquired property of defendant No.3. Hence, defendant No.1 has failed to prove that the suit filed by the plaintiffs is maintainable.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> In view of the above discussion, I answered point No.4 in the negative.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>31.<span style=\"white-space:pre\">	</span>Point No.5: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The Trial Court without considering the said aspect has proceeded to pass the impugned judgment and decree. The impugned judgment and decree passed by the trial Court is perverse and arbitrary and the same is liable to be set aside and defendant No.1 has made out a ground for interference with the impugned judgment. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In view of the above discussion, I answered point No.5 in the affirmative<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space:pre\">	</span>The appeal is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd68184b30f6d091add840789117cc391.JPG', 'c67aaa2dc930cf8c50b1f87b60c8f04c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-10', 1, '', '', '2023-07-08 23:06:01', '2023-07-10 08:01:49');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3180, 'K2iANunb2LHr6jRc9DZnxvyqu', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'National Highways Authority Act. Only the Principal Civil Court of original jurisdiction can decide disputes relating to apportionment of the amount determined towards compensation. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vinod Kumar and others Vs District Magistrate Mau and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5107 of 2022 decided on 7 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B.R. Gavai and Justice J.B. Pardiwala.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The Central Government issued a notification dated 23.01.2015 in exercise of power under Section 3A(1) of the Act 1956 proposing to acquire few parcels of land situated in the District Mau for the purpose of four lane widening of the National Highway No. 29. The said notification included the land bearing Gat Nos. 158, 160 and 161 resply of the village Ahirani Bujurg, District Mau (UP). </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. In the aforesaid context, a further notification dated 21.01.2016 was issued under Section 3D of the Act 1956 declaring that the land as aforestated would be acquired for the public purpose. Upon issuance of such notification, the land vested in the Central Government.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the High Court committed any error in passing the impugned order.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>22. Section 3H is with respect to deposit and payment of amount. What is relevant for our purpose is sub­clause (4) of Section 3H. Sub­clause (4) reads thus:­</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>“3H. Deposit and payment of amount.— (4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated.”</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23. The scheme of the Act 1956 and the statutory provisions referred to above makes it very clear that once any land is acquired under the Act 1956, the competent authority is obliged to pay an amount by way of compensation. There is a procedure which has been prescribed under Section 3G of the Act 1956. Sub­clause (5) of Section 3G makes it abundantly clear that if the amount determined by the competent authority under sub­section (1) or sub­section (2) of Section 3G is not acceptable to either of the parties, the amount will have to be determined by the arbitrator who may be appointed by the Central Government on the strength of an application by either of the parties. Section 3H provides that the amount determined towards compensation under Section 3G will have to be deposited by the Central Government in accordance with the rules. It is only after such amount is deposited by the competent authority that the possession of the land can be taken. Sub­clause (4) of Section 3H talks about apportionment of the amount. The language of sub­clause (4) of Section 3H is plain and simple. It provides that if any disputes arises as to the apportionment of the amount or any part thereof, the competent authority is obliged to refer the dispute to the decision of the Principal Civil Court of original jurisdiction within the limits of whose jurisdiction the land is situated. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>24. In the case on hand, the High Court seems to have completely misread the provisions of the Act 1956. It fell into error as it failed to apply the well settled principle of law that for construing a legal provision, the first and foremost rule of construction is the literal construction. All that the Court has to see at the very outset is what does the provision state. If the provision is unambiguous and from the provision the legislative intent is clear, the Court need not call into aid the other rules of construction of statute. The other rules of construction are called into aid only when the legislative intent is not clear.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>25. It may be mentioned in the aforesaid context that the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation, for example, the mischief rule/ purposive construction, etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule. The language employed in a statute is the determinative factor of the legislative intent. The legislature is presumed to have made no mistakes. The presumption is that it intended to say what it has said. Assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>26. There is a fine distinction between determining the amount to be paid towards compensation and the apportionment of the amount. The legislature has thought fit to confer powers upon the Principal Civil Court of original jurisdiction to determine the dispute arising as to the apportionment of the amount. There is a reason, why the legislature has thought fit to confer such power to the Principal Civil Court of original jurisdiction within the limits of whose jurisdiction is land is situated. We shall try to explain hereinafter. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>28. Thus, the only general principle one could state is that apportionment under sub­clause (4) of Section 3H of the Act 1956 is not a revaluation but a distribution of the value already fixed among the several persons interested in the land acquired in accordance with the nature and quantum of the respective interests. In ascertainment of those interests, the determination of their relative importance and the manner in which they can be said to have contributed to the total value fixed are questions to be decided in the light of the circumstances of each case and the relevant provisions of law governing the rights of the parties. The actual rule for apportionment has to be formulated in each case so as to ensure a just and equitable distribution of the total value or compensation among the persons interested in the land. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>29. In the circumstances referred to above, the legislature thought fit to assign such function to none other than the Principal Civil Court of original jurisdiction. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>32. In the decision in Sharda Devi v. State of Bihar, reported in 2003 MhLJ Online (S.C.) 23 = AIR 2003 SC 942, this Court had an occasion to consider the ambit and scope of Sections 30 and 31 resply of the Land Acquisition Act, 1894. In analyzing and interpreting these provisions, this Court held as under:­</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i><font face=\"Calibri, sans-serif\">“23. The two provisions contemplating power of the Collector to make reference as contained in Section 18 and Section 30 of the Act need a comparative study. Under Section 18 the subject­matter of reference can be a dispute as to any one or more of the following: (i) as to the measurement of the land, (ii) as to the amount or the quantum of the compensation, (iii) as to the persons to whom the compensation is </font>payable, (iv) as to the apportionment of the compensation among the persons interested. Under Section 30 the subject matter of dispute can be: (i) the apportionment of the amount of compensation or any part thereof, (ii) the persons to whom the amount of compensation or any part thereof is payable. Though the expression employed in Section 18 is \'the amount of compensation\' while the expression employed in Section 30 is \'the amount of compensation or any part thereof\', this distinction in legislative drafting is immaterial and insignificant and a dispute as to entitlement or apportionment of part of the compensation would also be covered by Section 18 of the Act on the principle that the whole includes a part too. Thus, at the first blush, it seems that Section 30 overlaps Section 18 in part; but as will be seen shortly hereinafter, it is not so.\r\n</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i>\r\n\r\n\r\n30. The scheme of the Act reveals that the remedy of reference u/s 18 is intended to be available only to a \'person interested\'. A person present either personally or through representative or on whom a notice is served u/s 12(2) is obliged, subject to his specifying the test as to locus, to apply to the Collector within the time prescribed u/s 18(2) to make a reference to the Court. The basis of title on which the reference would be sought for u/s 18 would obviously be a preexisting title by reference to the date of the award. So is Section 29, which speaks of \'persons interested\'. Finality to the award spoken of by Section 12(1) of the Act is between the Collector on one hand and the \'persons interested\' on the other hand and attaches to the issues relating to (i) the true area, i.e. measurement of the land, (ii) the value of the land, i.e. the quantum of compensation, and (iii) apportionment of the compensation among the \'persons interested\'. The \'persons interested\' would be bound by the award without regard to the fact whether they have respectively appeared before the Collector or not. The finality to the award spoken of by Section 29 is as between the \'persons interested\' inter se and is confined to the issue as to the correctness of the apportionment. Section 30 is not confined in its operation only to \'persons interested\'. It would, therefore, be available for being invoked by the \'persons interested\' if they were neither present nor represented in proceedings before the Collector, nor were served with notice u/s 12(2) of the Act or when they claim on the basis of a title coming into existence post award. The definition of \'person interested\' speaks of \'an interest in compensation to be made\'. An interest coming into existence post award gives rise to a claim in compensation which has already been determined. Such a person can also have recourse to Section </i></b><b style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>30. In any case, the dispute for which Section 30 can be invoked shall remain confined only (i) as to the apportionment of the amount of compensation or any part thereof, or (ii) as to the persons to whom the amount of compensation (already determined) or any part thereof is payable. The State claiming on the basis of a pre­existing right would not be a \'person interested\', as already pointed out hereinabove and on account of its right being preexisting, the State, in such a case, would not be entitled to invoke either Section 18 or Section 30 seeking determination of its alleged pre­existing right. A right accrued or devolved post award may be determined in a reference u/s 30 depending on Collector\'s discretion to show indulgence, without any bar as to limitation. Alternatively, such a right may be left open by the Collector to be adjudicated upon in any independent legal proceedings. This view is just, sound and logical as a title post award could not have been canvassed upto the date of the award and should also not be left without remedy by denying access to Section 30. Viewed from this angle, Section 18 and 30 would not overlap and would have fields to operate independent of each other</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i>\r\n\r\n\r\n37. The Collector acts as a representative of the State whilst holding proceedings under the Land Acquisition Act. In fact, he conducts the proceedings on behalf of the State. The award of the Collector is not the source of the right to compensation; it is the pre­ existing right which is recognized by the Collector and guided by the findings arrived at in determining the objections, if any, the Collector quantifies the amount of compensation to be placed as an offer of the appropriate Government to the owner recognized by the State. The offeree may accept or decline the offer. It he accepts the offer and the Government takes possession over the land, the title of the offeree is extinguished and vests absolutely in the Government free from all encumbrances. The power to make an award under Section 11 and to make a reference under Sections 18 or 30 of the Act is a statutory power. The sweep of jurisdiction of Court to determine the disputes is also statutory and is controlled by the bounds created by Section 17 or 30 whereunder the reference has been made to the Court. The power has to be exercised to the extent to which it has been conferred by the Statute and on availability of preexisting conditions on the availability of which and which alone the power can be exercised.\r\n</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i>\r\n\r\n\r\n38. Award made by the Collector is final and conclusive as between the Collector and the \'persons interested\', whether they have appeared before the Collector or not, on two issues : (i) as to true area, i.e. measurement of land acquired, (ii) as to value of the land, i.e. the amount of compensation, and (iii) as to the apportionment of the compensation among the \'persons interested\' again, between the Collector and the \'persons interested\' and not as amongst the \'persons interested\' inter se. In the event of a reference having been sought for u/s 18, the Collector\'s award on these issues; if varied by Civil Court, shall stand superseded to that extent. The scheme of the Act does not attach a similar finality to the award of the Collector on the issue as to the person to whom compensation is payable; in spite of the award by Collector and even on failure to seek reference, such issue has been left available to be adjudicated upon by any competent forum.”</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><font face=\"Calibri, sans-serif\"></font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>34. Our final conclusion is as under:­ If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, then, the competent authority shall refer the dispute to the decision of the Principal Civil Court of original jurisdiction within the limits of whose jurisdiction the land is situated. The competent authority possesses certain powers of the Civil Court, but in the event of a dispute of the above nature, the summary power, vesting in the competent authority of rendering an opinion in terms of sub­section (3) of Section 3H, will not serve the purpose. The dispute being of the nature triable by the Civil Court that the law steps in to provide for that to be referred to the decision of the Principal Civil Court of original jurisdiction. The dispute regarding apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, would then have to be decided by that Court. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>35. In such circumstance referred to above, the order passed by the District Magistrate, Mau dated 16.01.2020 is hereby quashed and set aside. The writ application No. 7310 of 2020 stands allowed. In view of the dispute between the parties as regards apportionment of the amount of compensation, the Special Land Acquisition Officer shall now refer the dispute to the Principal Civil Court of original jurisdiction in accordance with sub­clause (4) of Section 3H of the Act 1956.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>36. The appeal is allowed accordingly. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>37. There shall be no order as to costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8d7391aeb5951d50f6f177af2e17c63d.jpeg', '10e5af9f2030cac80b568db9efd45712.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-11', 1, '', '', '2023-07-09 21:44:47', '2023-07-11 06:20:59'),
(3181, 'a9dbWu4q3T78xz7zVW8NsDv2H', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka SC/ST (PTCL) Act. Any action taken by the authorities under the Act beyond a reasonable period cannot be sustained. Karnataka High Court quashes resumption order. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kehsav Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 103582 of 2023 decided on 28 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The land in question was allotted to one\r\nSri.Ganapati @ Shankar Rama Chandavar on 28.04.1959.\r\nThe original grantee had sold the land in question under a </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">registered sale deed dated 14.06.1974. Thereafter, the\r\npetitioner had purchased the land in question under a\r\nregistered sale deed dated 25.06.2004. The 5th respondent\r\nherein appears to have filed an application under Section 5\r\nof the Karnataka Scheduled Castes and Scheduled Tribes\r\n(Prohibition of Transfer of Certain Lands) Act, 1978\r\n(hereinafter referred to as \"Act of 1978\") in the year 2019\r\nseeking resumption of land on the ground that the sale of\r\nthe land in question was hit by the provisions of the Act of\r\n1978. The Assistant Commissioner by the order dated\r\n29.12.2021 vide Annexure - E dismissed the said\r\napplication filed by the 5th respondent on the ground of\r\ndelay and latches. The order passed by the Assistant\r\nCommissioner was set aside by the Deputy Commissioner\r\nin an appeal filed by the 5th respondent under Section 5-A\r\nof the Act of 1978. Being aggrieved by the same, the\r\npetitioner is before this Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. The undisputed facts of the case are, the grant\r\nof the land in question was made in favour of the original\r\ngrantee on 28.04.1959. The first sale of the land in\r\nquestion was made by the original grantee on 14.06.1974\r\nThe petitioner has thereafter purchased the land in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">question on 25.06.2004 under a registered sale deed.\r\nApplication has been filed by the 5th respondent under\r\nSection 5 of the Act of 1978 seeking resumption of the\r\nland only in the year 2019 i.e., after a lapse of 40 years\r\nfrom the date the Act of 1978 has come into force. The\r\nHon\'ble Supreme Court in the case of Nekkanti Rama\r\nLakshmi vs. State of Karnataka and others reported in\r\n(2020) 14 SCC 232 and also in the case of Vivek M. Hinduja\r\nand others vs. M.Ashwath and others (Civil Appeal\r\nNo.2166/2009), has held that any action taken by the\r\nauthorities under Act of 1978 beyond a reasonable period\r\ncannot be sustained. The period of 40 years from the date\r\nof the Act coming into force can be safely considered as\r\nbeyond reasonable period and therefore, the 3rd\r\nrespondent Assistant Commissioner was fully justified in\r\ndismissing the application filed by the 5th respondent\r\nunder Section 5 of the Act of 1978. The Deputy\r\nCommissioner has however failed to appreciate this aspect\r\nof the matter and has erred in allowing the appeal filed by\r\nthe 5th respondent.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. Under the circumstances, the impugned order\r\nat Annexure - F passed by the Deputy Commissioner\r\ncannot be sustained. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> The writ petition is allowed. </b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '39d9853708aa027c7ef7c45ee2ba3762.jpeg', '92b8be66031fe75022dcf4e0032d2dfa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-11', 1, '', '', '2023-07-10 10:09:29', '2023-07-11 10:28:19'),
(3182, 'Rn7scoU25OuEaCN69czGsSUir', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Non-alienating member of joint family can maintain a suit for partition and separate possession in the event of alienation by other members and there is no need to challenge the sale deed. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bharmappa Thr LRS and others Vs Guddappa Thr LRS and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 1310 of 2006 decided on 9 February 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sachin Shankar Magadum.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Captioned second appeal is filed by unsuccessful defendant No.2, who is questioning concurrent judgment and decree of the courts below wherein respondent No.1- plaintiff is granted half share in item No.35/1 property. Respondent No.1-plaintiff filed a suit for partition and separate possession in O.S.No.56/2002. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space:pre\">	</span>The respondent No.1-plaintiff specifically contended that schedule 1(A) properties, which is agricultural lands bearing survey No.57/3 measuring 1 acre 23 guntas and survey no.56/1 measuring 3 acre 20 guntas are joint family ancestral properties. After the death of plaintiff’s father Shiddappa, defendant No.1 i.e. vendor of appellant/defendant No.2, was managing the family affairs as a Karta. It was further contended that suit lands at schedule 1(A) were jointly cultivated by plaintiff and defendant No.1. It was specifically contended that out of the income derived from the ancestral properties and also out of joint earnings, suit schedule 1(B) property bearing Survey no.35/1 was purchased in the name of defendant No.1. The respondent-plaintiff has specifically pleaded in the plaint that the registered sale deed executed by defendant No.1 in favour of present appellant-defendant No.2 is a nominal sale deed and same would not give any right and title either to defendant No.1 or in favour of defendant No.2. On these set of pleadings, respondent No.1-plaintiff filed a suit for partition and separate possession. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>On receipt of summons, the present appellant, who was arrayed as defendant No.2, contested the proceedings. The present appellant has stoutly denied the entire averments made in the plaint. The allegation that the sale deed in the name of defendant No.1, in the capacity of manager, was seriously disputed by the present appellant herein. The present appellant, who is purchaser has specifically contended that defendant No.1 has purchased item No.1(B) property out of his independent earnings for valuable sale consideration and therefore, it is self acquired property of defendant No.1. In the event, if Court comes to a conclusion that plaintiff is entitled for share in suit item No.1(B) property, the appellant is entitled for equitable portion of allotment of suit item No.1(B) land. The Trial Court, having assessed the oral and documentary evidence, answered issue No.1 and 2 in affirmative and recorded a categorical finding that respondent No.1-plaintiff has succeeded in establishing that the suit schedule properties are joint family ancestral properties comprising plaintiff and defendant No.1 and further held that the sale deed executed in favour of appellant-defendant No.2 by deceased defendant No.1 in respect of agricultural land bearing Survey No.35/1 is not binding on plaintiff’s half share in the suit schedule property.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>Feeling aggrieved by the judgment and decree of the Trial Court, the present appellant preferred an appeal before the First Appellate Court. The First Appellate Court having independently assessed the ocular and documentary evidence has referred to the recitals in Ex.D6 and Ex.D7, which are two sale deeds executed by deceased defendant No.1 in favour of appellant- defendant No.2, wherein defendant No.1 has sold half share on 26.04.1985 as per Ex.D6 and remaining half portion was also sold by him in favour of defendant No.2 on 19.11.1985 as per Ex.D7. The First Appellate Court having meticulously examined Ex.D6 found that defendant No.1 while alienating half portion in Survey No.35/1 has admitted in an unequivocal terms that he is selling his half share in the suit schedule property. Therefore, by placing reliance on Ex.D6, the First Appellate Court has also concurred with the findings of the Trial Court that the land bearing Survey No.35/1 was purchased in the name of defendant No.1, who was acting as a manager of the family and was looking after the family affairs. The First Appellate Court has also dealt with the ocular evidence let in by both the parties. The First Appellate Court on reassessing the entire evidence on record has also negatived the contention of the appellant herein that survey No.35/1 was purchased by deceased defendant No.1 only after partition between both the brothers. This contention was also negatived and thereby the First Appellate Court also concurred with the findings recorded by the Trial Court. Both the Courts have concurrently held that item No.1(B) property bearing Survey No.35/1 is also joint family ancestral property and the said property was purchased in the name of defendant No.1 by investing joint family corps and therefore, both the Courts have concurrently held that item No.1(B) property bearing Survey No.35/1 is joint family ancestral property. It is against this concurrent judgment of the courts below the present appeal came to be filed and the same was admitted by this Court on 02.06.2010 by formulating following substantial questions of law: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b>1.<span style=\"white-space:pre\">	</span>Whether the Court below is justified in decreeing the half share in respect of schedule 1(B) property i.e. Survey No.35/1 which is purchased by the appellant in the year 1985? </b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>2.<span style=\"white-space:pre\">	</span>Whether the Court below is justified in decreeing the suit and declaring that he respondents are entitled for the share in property bearing Survey No.35/1 without there being deceleration that sale deed is null and void?</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>The present case revolves within a narrow compass. Admittedly, the suit schedule property at item No.1(A) is ancestral property. There is no serious dispute that after the death of Shiddappa, his eldest son namely Basappa, who is vendor of appellant herein was acting as a manager of the family. This fact is not at all in dispute. If these significant details are taken into consideration, then this Court has to examine as to whether the purchase made by defendant No.1 in respect of item No.1(B) is concerned, is his self acquired property or it is an ancestral property. It is a trite law that where a Karta of the family purchases a property, the initial burden is always on the Karta to prove that he had independent earnings and the acquisition is not through the yield of joint family corpus. But the recital in the sale deed as per Ex.D6 in favour of appellant by defendant No.1 would virtually clinch the issue. In the sale deed dated 26.04.1985 as per Ex.D6, defendant No.1 has admitted in unequivocal terms that he is selling half joint portion in the suit schedule property. This statement made by deceased defendant No.1 at an undisputed point of time would clinch the issue and therefore, neither defendant No.1 could have retracted from this statement nor the present appellant, who is claiming under defendant No.1 could have retracted from the said statement. Any contra evidence, pleadings contrary to recitals in Ex.D6 stand excluded in terms of section 90 and 91 of the Evidence Act and same is inadmissible in evidence and therefore, these significant details are taken into consideration by both the Courts below. Even otherwise, there are several suggestions made by appellant-defendant No.2 while cross-examining plaintiff and same is forthcoming from paragraph 7. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space:pre\">	</span>On perusal of the same, what would emerge is that the possession of plaintiff over southern portion in survey No.35/1 was virtually admitted by appellant- defendant No.2. If the recitals in Ex.D6 are taken into consideration, the admission which is secured by appellant-defendant No.2 in regard to the fact that defendant No.1 had independent earning is of no consequence. Said admission does not go to the root of the case and it would not dislodge the plaintiff’s case in the present case on hand. In that view of the matter, the substantial question of law framed at serial No.1 has to be answered in affirmative.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space:pre\">	</span>The second substantial question of law framed by this Court is squarely covered in the light of the dictum laid down by the co-ordinate bench in the case of Ganapati Santaram Bhosale v.  Ramachandra Subbarao Kulkarni3 (Head Note B). If there is alienation of joint family property, non-alienating members of the family need not question the sale deed. It would be sufficient if a suit for partition and separate possession is filed. In that view of the matter, the substantial question of law framed at Sl.No.2 is also answered in affirmative. Before I part with the reasons in the present case on hand, some few subsequent developments which took place have to be taken into consideration and same warrants interference at the hands of this Court. Respondent No.1-plaintiff having filed a suit for partition and separate possession and having sought indulgence of this Court to effect partition by metes and bounds by quantifying the share of defendant No.1 has ventured in selling suit item No.1(B) properties in favour of third parties. Therefore, section 52 of the Transfer of Property Act would come into play and therefore, I am of the view that though this Court is not inclined to interfere with the judgment and decree passed by the Courts below, however on account of alienation by respondent No.1- plaintiff and the legal representatives of deceased defendant No.1 pending suit has virtually effected the equitable rights of appellant herein, who could have worked out remedy in final decree proceedings. Had plaintiff and legal representatives of deceased defendant No.1 not ventured into selling item No.1 properties, the present appellant could have made out a case before final decree court and to allot entire extent to the share of appellant by way of equity. It is also relevant to note that what is sold by defendant No.1 in favour of present appellant-defendant No.2 is well within his legitimate share in the suit schedule properties. Therefore, alienation made by respondent No.1-plaintiff and legal representatives of defendant No.1 will not affect the equitable rights of appellant herein. Appellant/defendant No.2 is entitled to workout his equities by way of priority. In that view of the matter, the question as to whether entire extent can be allotted to appellant-defendant No.2 has to be examined by the FDP Court and the equities are to be worked out in final decree proceedings by keeping in mind that respondent No.1 and legal representatives of defendant No.1 have sold entire extent of item No.1(B) properties.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>Both the Courts below have held that item No.1B is also ancestral property. It was purchased with the yield of joint family funds. In co-parcenary property, it is a trite law that the co-parcener can sell his undivided share but in the event in a given set of facts, if co- parcener ventures into selling entire extent or sells a property in excess of his share, then the alienation made by one of the co-parceners would not bind the other non- alienating members in excess of legitimate share of the co-parcener, who alienates co-parcenary property. This principal is based on settled principles of Hindu Law that every co-parcener has an independent right by birth. It is a pre-existing right in the property. Therefore, any unilateral alienation would not take away the rights of non-alienating co-parcener. Therefore, in co-parcenery properties, the principles enumerated under Section 41 of the Transfer of Property Act have no application. The fact that a non-alienating member can only maintain a suit for partition and separate possession in the event there is alienation by other members in itself would indicate that there is no need to challenge the sale deed. In fact, it is a best cause of action for non-alienating co-parcener to simply file a suit for partition and separate possession. Therefore, the principles laid down by the Privy Council in the judgment cited supra, have no application in the present case on hand. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>With this observation, the second appeal stands dismissed and this appeal would not come in the way of appellant-defendant No.2 in working out his equitable rights in FDP Court. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'df9b78932266216cb1d8d388ee7e5b59.JPG', 'c3cd5bbc926e39759fb8e4a80467879f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-11', 1, '', '', '2023-07-10 12:18:08', '2023-07-11 08:13:00');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3183, '0qeg5vKPP6dK4hUqnzKF0o42X', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Attachment under Order 38 Rule 5 of CPC. Even where the defendant is removing or disposing his assets, attachment before judgment will not be issued if the plaintiff is not able establish prima facie case. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vinod Kumar Jain and others Vs Shanthilal.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.F.A 2160 of 2023 decided on 7 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The factual matrix of the case of the appellants is\r\nthat the appellants had filed a suit in O.S.No.160/2021 and\r\ninteralia, sought for an order of attachment before judgment\r\nby filing an application under Order 38 Rule 5 of CPC. It is\r\ntheir case that the respondent and one Abdul Khader are the\r\nowners of the commercial property bearing number ID 21-2-\r\n3-136D/1 and assessment No.18447/12076 measuring\r\n2840.42 sq.mtrs. situated near IDSG College, KM Road,\r\nChikmagaluru. The property totally measures 5680.84\r\nsq.mtrs and was auctioned by Canara Bank, Chikmagalur on\r\n29.10.2010. The respondent and Abdul Khader purchased the\r\nentire extent of 5680.84 sq.mtrs. jointly out of which the\r\nrespondent is the owner of 2840.42 sq.mtrs. Pursuant\r\nthereto, the respondent executed an agreement of sale dated\r\n13.01.2014 in favour of appellant No.1 and his late father for </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the extent of 40% of the property since appellant No.1 had\r\npaid the sale consideration to the respondent at the time of\r\npurchasing the same from the Bank.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. It is their case that appellant No.1 had paid the\r\nconsideration of Rs.46,95,800/- in three installments of\r\nRs.33,22,500/-, Rs.11,07,500/- and Rs.2,65,800/- and the\r\nsaid payments were made via cheques drawn on ING Vysya\r\nBank, MG Road Branch Chikmagalur. Pursuant to the\r\npayments, the respondent refused to execute a sale deed in\r\nfavour of appellant No.1 and hand over the possession of the\r\nproperty and hence a suit is filed in O.S.No.47/2014. During\r\nthe course of trial, in order to settle the matter, the parties\r\nwent to Bhootanatheshwara Temple, Volgerahalli and in the\r\npresence of elders and committee members of the Temple\r\nentered into an agreement attested by witnesses, wherein it\r\nwas agreed that the respondent would execute a sale deed for\r\n40% of the property subject to withdrawal of the suit. The\r\nplaintiff therein being a senior citizen, who is the father of\r\nappellant No.1, fearing the stress of litigation, agreed to the\r\ncondition and withdrew the suit as not pressed as the matter</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is settled out of Court before the Lok Adalath. However, to\r\nthe shock and surprise of the appellant No.1, the respondent\r\ndid not come forward to execute the sale deed despite several\r\nrequests. After several requests and pleading, the respondent\r\ninstead of executing a sale deed, offered to pay\r\nRs.1,84,51,000/- to appellant No.1 and his father as a one\r\ntime settlement. The appellant No.1 and his father had\r\nagreed to the offer as the respondent was harassing them\r\nrepeatedly. In pursuance thereof, the respondent executed a\r\nMemorandum Of Understanding (‘MOU’ for short) dated\r\n02.12.2018 in favour of appellant No.1 and in terms of the\r\nsaid MOU, paid a sum of Rs.35,00,000/- in several\r\ninstallments between the years 2018-2020 by way of RTGS\r\nand cheque. The respondent failed to pay the balance\r\namount and hence the appellants filed a suit for recovery of\r\nmoney of Rs.2,41,74,838/- and an application was filed under\r\nOrder 38 Rule 5 of CPC. The Trial Court dismissed the same.\r\nHence, the present appeal is filed before this Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Having heard the learned counsel for the\r\nappellants and the learned counsel for the respondent, the\r\npoints that arise for the consideration of this Court are:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Whether the Trial Court has committed an\r\nerror in dismissing the application filed under\r\nOrder 38 Rule 5 of CPC?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) What order?<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(i):\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. Having perused the plaint averments, it is the case\r\nof the plaintiffs that they have paid the amount to purchase\r\nthe property to respondent No.1 and also executed an\r\nagreement of sale to that effect. When the respondent did\r\nnot execute the sale deed, a suit is filed for the relief of\r\nspecific performance. Admittedly, the suit was withdrawn\r\nbefore the Lok Adalath. To that effect, the document is\r\nproduced before the Court i.e., order sheet. Having perused\r\nthe order sheet, it is clear that the suit was withdrawn as\r\nsettled out of Court and there was no any reference in the\r\nsaid order sheet that the parties have entered into an\r\nagreement for settlement of issues between the parties. The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">earned counsel for the appellants relied upon the document\r\nof agreement dated 31.01.2015 and typed copy is produced\r\nbefore the Court. According to him, in view of the said\r\nsettlement, the suit was withdrawn. It is important to note\r\nthat the plaintiffs also relied upon one more document of the\r\nyear 2018 and based on the said document No.6 i.e.,\r\npreliminary MOU, the suit is filed. The said document is\r\ndisputed by the respondent stating that the same is created\r\nand fabricated. The learned counsel for the respondent\r\nbrought to the notice of this Court that the same is not on any\r\nstamp paper, but stamp duty is paid four days prior to filing of\r\nthe suit. When the suit is filed based on the preliminary MOU\r\nand the suit is also for recovery of money and when the\r\ndocument is disputed, the Court cannot come to the\r\nconclusion that the said document is a prima facie document\r\nto invoke Order 38 Rule 5 of CPC. No doubt, furnishing of\r\nsecurity invoking Order 38 Rule 5 of CPC is nothing but\r\nsecurity for enforcing the decree.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. In the case on hand, the question before this Court\r\nis whether the appellants have made out a prima facie case. I\r\nhave already pointed out that the suit is based on a\r\npreliminary MOU and the same is disputed and the defendant <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">also contend that the same is created and concocted. It is\r\nimportant to note that earlier a suit was filed and the same\r\nwas withdrawn and there was no any condition while\r\nwithdrawing the same and the defendant was not a party to\r\nthe said withdrawal and only based on the settlement stated\r\nby the plaintiff, permitted to withdraw and it is also\r\nspecifically mentioned that the matter is settled out of Court,\r\nbut here they claim that in terms of the settlement not\r\nexecuted the document. If both the parties are parties to the\r\nsaid settlement and filed any document before the Trial Court,\r\nthen there would have been force in the contention of the\r\nlearned counsel for the plaintiffs and no such joint memo is\r\nfiled before the Lok Adalath and suit is withdrawn only on the\r\nsay of the plaintiff before the Trial Court that the matter has\r\nbeen settled. No doubt, the plaintiffs’ counsel relies upon the\r\ndocument dated 31.01.2015 and the same is not stated while\r\nwithdrawing the suit that already there was a settlement\r\nbetween the parties in terms of the said document, the suit is\r\nwithdrawn and when such being the case, the plaintiffs have\r\nnot made out any prima facie case. It is settled law that the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">power under Order 38 Rule 5 of CPC is drastic and\r\nextraordinary power. Such power should not be exercised\r\nmechanically or merely for the asking. It should be used\r\nsparingly and strictly in accordance with the Rule. The\r\npurpose of Order 38 Rule 5 of CPC is not to convert an\r\nunsecured debt into a secured debt. Any attempt by the\r\nplaintiff to utilize the provisions of Order 38 Rule 5 of CPC as a\r\nleverage for coercing the defendant to settle the suit claim\r\nshould be discouraged. Instances are not wanting where\r\nbloated and doubtful claims are realized by unscrupulous\r\nplaintiffs by obtaining orders of attachment before judgment\r\nand forcing the defendants for out of Court settlements under\r\nthreat of attachment.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n 15. In the case on hand, I have already pointed out\r\nthat while withdrawing the suit, there is no any averments\r\nwith regard to the document dated 31.01.2015, which the\r\nplaintiffs relies upon and while withdrawing the suit, it is\r\nstated that the matter is settled out of Court. I have already\r\npointed out that the defendant is not a party while\r\nwithdrawing the suit, but claims that subsequently MOU came</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">into existence in 2018 and the suit was withdrawn in 2016\r\nitself. Hence, the plaintiffs have not made out any prima facie\r\ncase. In order to invoke Order 38 Rule 5 of CPC, the plaintiffs\r\nhave to make out a prima facie case. In the Apex Court’s\r\njudgment relied upon by the learned counsel for the\r\nappellants in the case of Kerala State Financial Enterprises\r\n(supra) in paragraph No.14, it is held that, there,\r\nindisputably, exists a distinction between attachment before\r\njudgment in terms of Order 38 of CPC and attachment for\r\nexecution of a decree under Order 21 thereof. The judgments\r\nwhich have been relied upon by the learned counsel for the\r\nappellants do not come to the aid of the appellants/plaintiffs.\r\nThe Apex Court in its judgment in the case of Rajendran\r\n(supra) held that the Court while exercising its jurisdiction\r\nunder Order 38 Rule 5 of CPC is required to form a prima facie\r\nopinion at that stage.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n 16. Having perused the material available on record, I\r\ndo not find making out of any prima facie case. No doubt, the\r\nTrial Court while passing the order made an observation that\r\naffidavit is not filed and the learned counsel for the appellants </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">brought to the notice of this Court that an affidavit is filed by\r\none Dinesh Kumar. But mere filing of the affidavit itself is not\r\nenough unless a prima facie case is made out. The Trial Court\r\nwhile considering the material on record, taken note of the\r\nquestion of entering into MOU and his liability to make\r\npayment in paragraph No.10 and also taken note of the fact\r\nthat the defendant has denied the MOU dated 02.12.2018 and\r\ntaken note of the order sheet in O.S.No.47/2014, wherein the\r\nplaintiffs have got dismissed the suit as not pressed stating\r\nthat the matter is settled out of Court. Hence, comes to the\r\nconclusion that the plaintiffs have not satisfied at this stage\r\nthat there is reasonable chance of decreeing the suit against\r\nthe defendant.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. The other contention of the learned counsel for the\r\nappellants is that in terms of MOU the payments are made\r\nand the same is denied by the defendant stating that he has\r\nnot deposited any amount in terms of the MOU. In the\r\nwritten statement, the respondent has categorically taken the\r\ncontention that the MOU is fabricated and signature is forged\r\nand also contend that the payments which have been made <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">are with regard to business of cloth. The learned counsel for\r\nthe appellants also brought to the notice of this Court the\r\nstatement of accounts, wherein some payments are made. It\r\nis the specific case of the defendant that the said payments\r\nare made in connection with cloth business. Hence, I do not\r\nfind any material to come to the conclusion that the plaintiffs\r\nhave made out a prima facie case to exercise the power Order\r\n38 Rule 5 of CPC. It is also settled law that Order 38 Rule 5\r\nof CPC should not be exercised mechanically and merely for\r\nthe asking. It should be used sparingly and strictly in\r\naccordance with the Rule and the purpose of Order 38 Rule 5\r\nof CPC is not to convert an unsecured debt into a secured\r\ndebt. Having considered the material on record and the\r\ndocuments relied upon by the plaintiffs, I do not find any\r\nprima facie case made out by the plaintiffs and the same has\r\nbeen considered by the Trial Court while rejecting the\r\napplication filed under Order 38 Rule 5 of CPC. Hence, I do\r\nnot find any merit in the appeal to set aside the order of the\r\nTrial Court and to allow the application filed under Order 38\r\nRule 5 of CPC. Hence, I answer point No.(i) in the negative.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(ii):</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> The appeal is dismissed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8c11d2028b93d3f8d6adb887f04215cd.JPG', 'f4937f397ba274ffd5d923834bb8b0b3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-12', 1, '', '', '2023-07-11 11:25:08', '2023-07-12 03:21:43'),
(3184, '7Komv7vU4PvkkcnFlUTbXJUUD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Appeal against grant/refusal to grant temporary injunction.  Appellate Court can mould the relief taking note of the relief sought in the Trial Court as on the date of suit. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Renukaprasad K.V and others Vs M. Puttaswamy and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.F.A 4319 of 2023 decided on 7 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>These appeals are filed under Order 43, Rule 1(r) of the\r\nCode of Civil Procedure, 1908, praying this Court to set aside the\r\norder dated 16.06.2023 passed by the VI Additional City Civil &\r\nSessions Judge (CCH-11) at Bengaluru City, on I.A.No.1 in\r\nO.S.No.3590/2023. Consequently, allow the application and\r\ngrant the relief as sought therein and pass such other order or\r\ndirections as this Court deem fit and proper in the facts and\r\ncircumstances of the case and allow the Miscellaneous First\r\nAppeals.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The appellants in MFA No.4320/2023 are the\r\nplaintiffs have filed a suit for the relief of declaration to declare\r\nthat the alleged resolution dated 09.06.2023 referred to in a\r\npaper publication dated 10.06.2023 published in Vijayavani\r\nKannada Daily Newspaper and notice dated 09.06.2023 issued </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by the defendant as illegal, null and void and non-est and issue a\r\nconsequential direction that the same shall not be given effect to\r\nor implemented; declare that the alleged Meeting dated\r\n09.06.2023 referred to in the Paper Publication dated\r\n10.06.2023 in Vijayavani Kannada Daily News Paper as well as\r\nnotice dated 09.06.2023 as illegal, null and void and\r\nconsequently, restrain defendant from acting upon, giving effect\r\nto or implementing any decisions taken thereat; declare that the\r\ndefendant has acted illegally and without authority of law in\r\ncalling a meeting of the executive committee of the Plaintiff -\r\nSangha on 17.06.2023; restrain the defendant, his servants or\r\nagents or anyone claiming through or under him from interfering\r\nwith the right of the Plaintiff No.3 in discharging his duty as\r\nGeneral Secretary of Plaintiff No.1-Sangha; grant costs of these\r\nproceedings and pass such other order as this Court deems fit to\r\ngrant in the interest of justice and equity. Inter alia sought for\r\nan order of temporary injunction restraining the defendant from\r\ngiving effect to and implementing the alleged resolution dated\r\n09.06.2023 referred to in a paper publication dated 10.06.2023\r\npublished in Vijayavani Kannada Daily Newspaper as well as\r\nnotice dated 09.06.2023 issued by the defendant, pending </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">disposal of the suit in the interest of justice and equity. Being\r\naggrieved by the rejection of I.A.No.1, the present appeal is\r\nfiled.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. The factual matrix of the case of the plaintiffs before\r\nthe Trial Court in O.S.No.3590/2023 is that, on 09.09.1907,\r\nplaintiff No.1 viz., Rajya Vokkaligara Sangha (‘the Sangha’ for\r\nshort) was registered as a Society under the provisions of\r\nMysore Societies Act, 1904. Bye-law No.7 of the Sangha,\r\nprovides for formation of executive committee. The Directors of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Executive Committee are elected from 11 Districts of the\r\nState. There are totally 35 Directors, who are elected and they\r\nconstitute an Executive Committee. As per the provisions of\r\nBye-law 7(3), the Executive Committee shall elect a (a) The\r\nPresident; (b) Two Vice-Presidents; (c) General Secretary; (d)\r\nAssistant Secretary; and (e) Treasurer.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>59. Having heard the respective counsels for the\r\nappellants and respective learned counsels for the respondents\r\nand also grounds urged in the appeal and on perusal of the\r\nmaterial available on record, the points that would arise for\r\nconsideration of this Court are:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n(1) Whether notice is mandatory before passing\r\nthe no confidence motion to all the executive\r\nmembers of the Sangha as per the bye-law\r\n7(3)(D) as contended in all the appeals?<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(2) Whether the Trial Court has committed any\r\nerror in not granting the relief as sought in\r\nI.A.No.1 filed under Order 39, Rule 1 and 2 of\r\nC.P.C.?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n(3) Whether the Appellate Court can mould the\r\n relief exercising the appellate jurisdiction?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(4) What order? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point Nos.(1) and (2):</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>61. It is not in dispute that the Sangha was registered as\r\na Society under the provisions of the Mysore Societies Act, 1904.\r\nThe Sangha also framed the Bye-laws. Bye-law No.7 of the\r\nSangha provides for formation of the Executive Committee. The\r\nDirectors for the Executive Committee are elected from 11\r\nDistricts of the State and total number of Directors are 35, who <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">are elected by the members of the Sangha and they constitute\r\nthe Executive Committee. It is also not in dispute that Bye-law\r\nNo.7(3) of the Executive Committee shall elect the President,\r\ntwo Vice Presidents, General Secretary, Assistant Secretary and\r\nTreasurer. The election was held in terms of the order passed\r\nby this Court in writ petitions and there is no dispute that the\r\nelections were held and the Executive Committee of the Sangha\r\nelected the office-bearers and the term was remaining. It is also\r\nnot in dispute that a notice of no-confidence motion was issued\r\nin terms of the notice dated 29.05.2023, signed by the Executive\r\nCommittee members and the same is addressed to the President\r\nand General Secretary, wherein the Executive Committee\r\nmembers have expressed no-confidence against all the officebearers. It is also not in dispute that the General Secretary gave\r\nreply to the said requisitionist that no-confidence motion notice\r\nissued was defective and thereafter a meeting was called on\r\n09.06.2023 and resolution was passed removing the officebearers and also date is fixed for selection of new office-bearers\r\nas 17.06.2023. A suit is also filed before the Trial Court seeking\r\nthe relief of declaration to declare that the resolution dated\r\n09.06.2023 is illegal and the said suit was filed on 12.06.2023.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>63. The fundamental question raised before this\r\nAppellate Court is that when the notice was issued in terms of\r\nthe notice dated 29.05.2023 against all the office-bearers, a\r\nreply was given on 03.06.2023 by the General Secretary that the\r\nvery notice is defective. It is the contention that immediately a\r\nletter was addressed to the Registrar, wherein it is stated that\r\nout of 21 members, 4 of them have given letter that they are\r\nnot supporting the no-confidence motion letter dated\r\n29.05.2023. The Registrar has not taken any action, but they\r\nconducted the meeting on 09.06.2023 and the said meeting\r\nnotice was not given to the Executive Committee/Directors.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>65. Bye-law No.7(3)(D) would indicate that if any of the\r\noffice-bearers of the Sangha have to be removed, the Executive\r\nCommittee has to issue a notice to the said effect to the\r\nconcerned office-bearers. Thereafter, the Executive Committee\r\nhas to convene a meeting fixing the date which shall not be later\r\nthan seven days after service of such notice. Having perused\r\nthe notice dated 29.05.2023, the said notice is given to the\r\nPresident and General Secretary. But that notice indicates some\r\nof the Executive Committee members expressed no-confidence\r\nmotion not only against the President and General Secretary,but\r\nalso against all the office-bearers. Hence, the very notice itself\r\nis defective since the same was given only to the President and\r\nGeneral Secretary. On perusal of the said notice, no-confidence\r\nmotion is expressed against all the office-bearers. Bye-law\r\nNo.7(3) would indicate that if any of the office-bearers of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Sangha have to be removed, the Executive Committee has to\r\nissue a notice to the said effect to the concerned office-bearers.\r\nBut no such compliance is made and no notice was given to the\r\nother office-bearers since they were expressing no-confidence\r\nmotion against all the office-bearers. The Executive Committee\r\nincludes all 35 members, who have been elected from 11\r\nDistricts in terms of Bye-law No.7(1). It is also clear that\r\nthereafter, the Executive Committee has to convene a meeting\r\nfixing the date which shall not be later than 7 days after service\r\nof such notice.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>66. In the case on hand, no doubt, the General\r\nSecretary did not convene the meeting within 7 days after\r\nservice of such notice. But the General Secretary gave the reply\r\nthat the very notice is defective. The defect pointed out is that\r\nthe Assistant Secretary has also signed the notice and he being\r\nthe office-bearer cannot issue such notice. The learned counsel\r\nfor the appellants would contend that when the notice is\r\ndefective, the question of convening the meeting does not arise.\r\nThe said submission cannot be accepted. The records reveals\r\nthat the no-confidence motion notice dated 29.05.2023 was\r\ngiven at 4.56 p.m. and on the very same day, the Assistant <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Secretary tendered his resignation prior to submitting the notice\r\ni.e., at 4.45 p.m. and the same is also evident on record and the\r\nsame is also taken note of by the Trial Court and the timings\r\nalso mentioned that it was given at 4.45 p.m. and the same was\r\nnumbered as 1173 dated 29.05.2023 and notice of noconfidence motion is also dated 29.05.2023 and the same is\r\nnumbered as 1174 i.e., at 4.56 p.m. Hence, it is clear that the\r\nGeneral Secretary was not having any intention to convene the\r\nmeeting to discuss the notice dated 29.05.2023 and the same is\r\nrefusal.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>69. The Bombay High Court in its judgment in the case\r\nof Adv. Babasaheb Wasade (supra), relied upon by the\r\nlearned counsel for the appellants in M.F.A.No.4445/2023, held\r\nthat the Trust was registered as a Society under the Societies\r\nRegistration Act, 1860. In paragraph No.25 it is held that their\r\nright as a member of the society, unless and until, they were\r\nexpelled from the society comprises of right to know all the\r\naffairs of the society and one of the affair about the\r\nmanagement of the society includes the election of the members\r\nof the Executive Committee. The said judgment is applicable to\r\nthe case on hand.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>70. The Apex Court’s judgment in the case of Gajanan\r\nNarayan Patil (supra), relied upon by the learned counsel for\r\nthe appellants in M.F.A.No.4445/2023, is with regard to giving\r\nan opportunity to the members of Committee of Management\r\nwhen no-confidence motion was moved entitled to sit and vote\r\nat any meeting of the committee and the same is discussed in\r\nparagraph No.12. It is also discussed that impugned notice <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">convening the special meeting is wholly illegal and unwarranted.\r\nFurthermore, as we have found hereinbefore that the two\r\nDirectors representing the financial institutions as well as the\r\nexpert nominee (co-opted) are entitled to participate in the\r\nspecial meeting of the committee and also to vote at the same\r\nmeeting as regards the no-confidence motion, the non-service of\r\nthe notice of the said meeting on the aforesaid Directors renders\r\nthe said special meeting illegal as there has been an\r\ninfringement of the provisions of the said Act, Rule 57-A of the\r\nMaharashtra Cooperative Societies Rules, 1961 and bye-laws 29-\r\nD(i) and (ii) and 29-E of the bye laws of the Society.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>71. In the case on hand also there is an infringement of\r\nthe right of the Directors of the Sangha i.e., Executive\r\nCommittee and no such notice was given.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>77. Section 25 of the Act is clear that the Registrar may\r\non his own motion and shall on the application of the\r\nmajority of the members of the governing body or of not\r\nless than one-third of the members of the society, hold an\r\nenquiry or direct some person authorised by him by order in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">writing in accordance with the rules made in this behalf to hold\r\nan enquiry into the constitution, working and financial condition\r\nof a registered society. The learned counsel also brought to\r\nthe notice of this Court Section 27A of the Act with regard to\r\nappointment of administrator. The question involved before this\r\nCourt is for moving of no-confidence motion and also specific\r\nground is urged that no notice was issued moving no-confidence\r\nmotion. When such being the case, the very contention of the\r\nlearned counsel that the remedy is under Section 25 of the Act,\r\ncannot be accepted and the issue is not with regard to affairs of\r\nmismanagement or of any complaint or representation received\r\nby the Registrar and issue is moving of no-confidence motion.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n78. Having considered the material available on record,\r\nwhen there is a clear violation of principles of natural justice and\r\nno notice was given to the office-bearers as per Bye-law\r\nNos.7(3) and they have been removed from the post of\r\noffice-bearers, there is a clear violation of Bye-law Nos.7(3)(D)\r\nand 16(3) and the same is not considered by the Trial Court\r\nwhile rejecting the application wherein an interim relief is\r\nsought. Hence, I answer point Nos.1 and 2 in the affirmative. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(3):</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>82. The principles laid down in the judgments of the\r\nApex Court in the case of Shipping Corporation of India Ltd.\r\n(supra) as well as in the case of J.M. Viswas (supra) are\r\nsimilar. The Apex Court in its judgment in the case of\r\nPasupuleti Venkateswarlu (supra), in paragraph Nos.4 and 5\r\ndiscussed in detail with regard to the scope of Appellate Court,\r\nwherein it is held that it is basic to our processual jurisprudence\r\nthat the right to relief must be judged to exist as on the date a\r\nsuitor institutes the legal proceeding. Equally clear is the\r\nprinciple that procedure is the handmaid and not the mistress of\r\nthe judicial process. If a fact, arising after the lis has come to\r\ncourt and has a fundamental impact on the right to relief or the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">manner of moulding it, is brought diligently to the notice of the\r\ntribunal, it cannot blink at it or be blind to events which stultify\r\nor render inept the decrotal remedy. Equity justifies bending the\r\nrules of procedure, where no specific provision or fairplay is\r\nviolated, with a view to promote substantial justice.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">83. Having considered the principles laid down in the\r\njudgments referred supra, the contention of the learned counsel\r\nfor respondent No.1 that the Appellate Court is having narrow\r\npower cannot be accepted and the Appellate Court can mould\r\nthe relief having taking note of the relief sought in the Trial\r\nCourt as on the date of suit. As on the date of suit, there was no\r\nsecond meeting i.e., selecting of office-bearers and the very\r\nquestion raised in the suit and in the appeal is that no notice was\r\nserved to the office-bearers as well as other Executive\r\nCommittee members in respect of meeting of 09.06.2023.\r\nHence, I answer point No.(3) in the affirmative that the Court\r\ncan mould the relief in an appeal also.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>84. The learned counsel for respondent No.5 would\r\ncontend that the Sangha was founded in the year 1904 and the\r\nfirst Sangha was founded in Karnataka. There is no dispute to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that effect, but at the same time, it has to be noted that the\r\npurpose for which Sangha was founded and also to see the\r\nvision of the founders in forming such Sangha and the same is\r\nalso very clear in Bye-law No.2 of the Society. The question is\r\nwhether that object in founding the Society is achieved or not.\r\nOn perusal of the history and material, it is clear that the\r\nSangha is involved in series of litigations and no elections are\r\nconducted periodically and also material discloses that\r\nadministrator was also appointed earlier as pleaded in the plaint.\r\nSubsequently, only on the direction of this Court in two writ\r\npetitions, the election was conducted and the Executive\r\nCommittee members were fighting for the power and not to\r\nachieve the object for which Sangha was founded. It is nothing\r\nbut fighting for self-enrichment and not to achieve the very\r\nobject of Sangha and hence it is high time for the Executive\r\nCommittee of the Sangha to make self-introspection for what\r\npurpose the Sangha was founded more than a century ago and\r\nthe object has to be achieved and then only they can salute the\r\nfounders of the Sangha which was founded more than a century\r\nago, otherwise there is no meaning in establishment of Sangha\r\nin 1904. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The appeals are allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b9674376771e2c7b4eabdc3035a99335.JPG', 'b4f9ad842de85af3ea2fd51616073d4d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-12', 1, '', '', '2023-07-11 11:50:21', '2023-07-12 10:24:18');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3185, '6BJzNQKX8xDoY4HD5jgifJsyY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Victim Compensation Scheme. Trial court while awarding interim and final compensation must adopt pragmatic approach for the welfare and well-being of the victim. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Lalitha Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 100269 of 2022 decided on 27 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Anil B Katti.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Appellant/complainant in this appeal is challenging the\r\nadequacy of compensation awarded by the trial Court on the\r\nfile of Additional District and Sessions Judge FTSC-1 UK Karwar\r\n(Special Court for trial of cases filed under POCSO) Act in\r\nspecial case No.13/2021 dated 18.01.2022.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The factual matrix necessary for disposal of this\r\nappeal can be stated in nutshell to the effect that on the\r\nstrength of the complainant filed by Smt.Lalitha W/o Narasimha\r\nSiddi criminal law was set into motion by registering the case in\r\nYellapur P.S. crime No. 219/2010 for the offences punishable\r\nunder Section 376 of IPC and Section 4 and 6 of POCSO Act.\r\nThe accused was tried for the said offences in special case\r\nNo.13/2021. The trial Court after appreciation of evidence on\r\nrecord convicted the accused for the aforesaid offences vide\r\njudgment dated 17.01.2022 and imposed sentence as per order\r\nof sentence dated 18.01.2022.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The trial court apart from fine of Rs.1,00,000/- in\r\nexercise of its power under Section 357 (1) of Cr.P.C awarded\r\ncompensation of Rs.1,00,000/- by exercising the power under </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 357(A) of Cr.P.C. for the rehabilitation of victim girl.\r\nThe trial Court has directed the District Legal Service Authority\r\n(for short \'DLSA\') to deposit the said amount in the name of\r\nvictim girl in any of the nationalized bank and interest accrued\r\non the said deposited amount shall be used for maintenance\r\nand rehabilitation of the victim girl.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. The member secretary District Legal Service\r\nAuthority, Karwar by letter No.123/2022 dated 22.06.2022\r\nrequested Karnataka State Legal Service Authority (for short\r\n\'KSLSA\') for release of compensation amount of Rs.1,00,000/-\r\nawarded by the trial Court. In response to the same KSLSA by\r\nletter 58/VCS/856/2022 dated 05.04.2022 directed DLSA\r\nKarwar to file appeal for enhancement of compensation as per\r\nKarnataka Victim Compensation Scheme, 2011 as per the\r\nSchedule Module Victim compensation scheme guidelines\r\nframed by NALSA vide government order No.HD42PCB2018,\r\nBangalore dated 25.09.2018, since victim girl being minor is\r\nentitled for enhanced compensation as per Sub clause (3) of\r\nclause (9) of NALSA compensation scheme for woman\r\nvictims/survivors of sexual assault/other crimes-2018. In <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">pursuance of the same DLSA by letter No.DLSA/KWR/253/2022\r\ndated 04.05.2022 requested the member secretary High Court\r\nLegal Services Committee, Dharwad Bench to prefer appeal.\r\nThereafter by order No.HCLSC/DB/65/2022 dated 18.05.2022\r\nauthorized penal advocate to file appeal and on such\r\nauthorization the present appeal is filed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. In the light of above referred background, the moot\r\nquestion that arise for consideration in this appeal are</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n 1. Whether Karnataka victim compensation\r\nscheme, 2011 (in shot \'KVCS\') and POCSO Act what is\r\nthe adequate amount of compensation at the interim and\r\nfinal stage?\r\n</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i> 2. Whether the special Court constituted under\r\nPOCSO Act is competent to quantify the compensation or\r\nthe DLSA?\r\n</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i> 3. Whether victim of offences under the\r\nprovisions of POCSO can approach either the special\r\nCourt or the respondent authorities for compensation\r\nincluding interim compensation?.</i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. The grant of compensation is covered in term of\r\nSection 357(1) and (3) of Cr.P.C. In term of Section 357(1)\r\nwhen a Court imposes a sentence of fine or sentence (including <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">entence of death) of which fine forms a part, the Court may\r\nwhile passing judgment order the whole or any part of the fine\r\namount recovered to be applied. In terms of Section 357(1) of\r\nCr.P.C when a Court imposes a sentence, of which fine does not\r\nform a part, the Court may, when passing judgment or order\r\naccused person to pay, by way of compensation such amount\r\nas may be specified in the order to the person who has suffered\r\nany lose or injury by reason of the Act for which the accused\r\nperson has been so sentenced. On conjoint reading of both\r\nthese proviso, it would go to show that the whole or part of the\r\nfine amount can be ordered to be paid to victim. The Court\r\napart from imposing the fine amount and ordering for grant of\r\ncompensation out of the fine amount, may award compensation\r\nin terms of Section 357(3) of Cr.P.C.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The proviso under Section 357(A) of Cr.P.C is very\r\nwide and would in fact even cover cases which are covered\r\nunder the POCSO Act. The reading of Section 33 of the Act\r\nwould show that power has been given to the special Court to\r\ngrant compensation. The POCSO Act is gender neutral and\r\nvictim child is entitled for compensation for rehabilitating the\r\nvictim child. The laudable object to enact special Act is to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">protect children from offences of sexual assault, sexual\r\nharassment and pornography. whereas it is necessary for the\r\nproper development of the child that his or her right to privacy\r\nand confidentiality be protected and prescribed by very person\r\nby all means and through all stages of judicial process involving\r\nthe child. It is imperative that the law operates in a manner in\r\nthe best interest and well being of the child are regarded as\r\nbeing paramount importance at every stage, to ensure the\r\nhealthy physical, emotional, intellectual and social development\r\nof the child. The duty of special Court is not only for the\r\nprotection of children from sexual offences and convict the\r\naccused where the accused is found guilty, but also to grant\r\ncompensation in terms of Section 33(8) of POCSO Act in\r\naddition to the punishment as may be prescribed to the child\r\nfor any physical or mental trauma caused to him or for\r\nimmediate rehabilitation of such child and determine the\r\ncompensation in terms of Rule 9 (3) (i) to (xii) of Rules 2020.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. The Hon\'ble Apex court in Writ petition (C) No.565\r\nof 2012 in NIPUN SAXENA AND ANOTHER VS. UNION OF\r\nINDIA AND OTHERS after noticing that as far as children as <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">concern, no scheme of this nature has been framed with regard\r\nto the victims of sexual abuse under the provisions of the\r\nPOCSO Act has directed that NALSA compensation scheme\r\nshould function as a guideline to the special court for the award\r\nof compensation to victims of child sexual abuse under Rule 9\r\nuntil the rules are finalized by the Central Government. It has\r\nbeen further held that Special Judge will of course, take\r\nprovisions of POCSO Act into consideration as well as any\r\ncircumstances that are special to the victim while passing an\r\nappropriate order. Needless to say that scheme and the\r\nguidelines will be operational from the 02.10.2018.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. The procedure and powers of special Court and\r\nrecording of evidence is contemplated under Section 33 of the\r\nPOCSO Act. In terms of Section 33(8) of POCSO Act in\r\nappropriate cases, the special court may in addition to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">punishment direct payment of such compensation as may be\r\nprescribed to the child for any physical or trauma caused to him\r\nor for immediate rehabilitation of the child.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. On careful reading of Section 33 of POCSO Act and\r\nRule 9 of Rules 2020 manifestly makes it clear that it is the\r\nduty of special court to determine the interim or final\r\ncompensation, so as to rehabilitate the child victim. The\r\nHon\'ble Apex court in NIPUN SAXENA case referred above\r\ndirected that till the framing of compensation scheme\r\nspecifically for child victims in POCSO cases is not in place, the\r\nNALSA compensation scheme shall act as a guideline to special\r\nCourts to award compensation to child victims of sexual abuse.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. On careful reading of Section 33(8) POCSO Act and\r\nRule 9 of Rules 2020, it is evident that it is only the special\r\ncourt have the power to quantify the compensation to the child\r\nvictims and forward the same to the DLSA for disbursal of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">award amount. The DLSA is under legal obligation to give effect\r\nto the compensation determined by the special Court. The\r\npower to determine compensation either interim or final is\r\nvested with the special court to achieve the laudable object of\r\nrehabilitation process to victim child. The Special Courts\r\nconstituted under the POCSO Act have adequate infrastructure,\r\nfacilities and human resources to ensure that not only the\r\nquality of evidence of child is not diminished but it also\r\nprovides for speedy adjudication of the claims.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. Therefore in view of the guidelines of Hon\'ble Apex\r\ncourt in NIPUN SAXENA case and pursuant circular issued by\r\nthis court as referred above, it is obligatory on the part of\r\nSpecial Court Judges under POCSO Act to determine\r\nappropriate compensation to which victim child is entitled in the\r\nlight of NALSA\'s scheme and Rule 9 of Rules 2020 till the\r\nframing of a compensation scheme specifically for a child\r\nvictims in POCSO cases. The role of DLSA is to enforce the\r\ncompensation determined by the Special Court and to make\r\npayment to victim child in terms of Rule 10 of Rules 2020 in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">compliance with the circular issued by this court as referred\r\nabove.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. In the present case the victim is not only minor girl,\r\nbut mentally retarded and dumb against whom penetrative\r\nsexual assault has been committed by the accused. The trial\r\nCourt has convicted the accused for the offences punishable\r\nunder Section 376 of IPC and Section 6 of POCSO Act. However\r\nin exercise of power in terms of Section 357(A) of Cr.P.C has\r\nawarded compensation of Rs.1,00,000/-. The grant of\r\ncompensation to the victim child under the POCSO Act either\r\ninterim or final shall not be based on the whims and fancy of\r\ntrial Court, but the compensation has to be determined on the\r\nbasis of Rule 9 of Rules 2020 and by following NALSA scheme\r\n2018. The trial court on the basis of evidence on record, nature\r\nof injury suffered by the victim, the circumstance under which <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the offence has been committed, the need of victim child for\r\nrehabilitation, medical treatment, education has to be\r\nconsidered for determination of the compensation. The trial\r\nCourt has not taken into consideration all the relevant factors\r\nenumerated in Rule 9 of Rules 2020 and NALSA scheme 2018\r\nfor determining the compensation. It is the duty of the trial\r\nCourt to take into consideration clause (i) to (xii) of Rule 9(3)\r\nof Rules 2020 and apply the NALSA\'s scheme 2018 then\r\ndetermine the compensation.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">19. In the present case the evidence of P.W.1 and 2\r\nparents of the victim would go to show that they are doing\r\ncoolie work and they have no other source of income. P.Ws. 1\r\nand 2 are having three children. The victim as on the date of\r\nincident was not only minor, but also mentally retarded and\r\ndumb. The victim has no any worldly knowledge and she talks\r\nto herself. When the parents of the victim girl and other two\r\nchildren goes for coolie work then they used to carry the victim\r\nalong with them. On account of above referred disablement of\r\nvictim, she could not study even in the school specially meant\r\nfor such disabled person. The accused who was working with </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">P.W.1 took advantage of his acquaintance with family of victim,\r\ncarried the victim for collecting \"Bembalakai\" for preparing food\r\nas requested by P.W.1 from the Areca garden and there\r\naccused has committed penetrative sexual assault on victim\r\ngirl. On account of above referred disablement of victim, she\r\nwas not examined before the trial Court. It is only on the basis\r\nof evidence of P.W.1, medical evidence and other evidence on\r\nrecord, the trial Court has convicted the accused. If these\r\nfactors are taken into consideration for loss or injury caused to\r\nvictim in terms of Rule 9(3) (i) to (xii) then in my opinion, the\r\nvictim girl is entitled for maximum compensation under NALSA\r\nscheme.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. In terms of the schedule applicable to women victim\r\nof crimes, minimum compensation to be awarded is\r\nRs.4,00,000/- and upper limit of compensation is Rs.7,00,000/-\r\n. The NALSA\'s scheme clause 9 provides that in case victim is\r\nminor, the limit of compensation shall be deem to be 50%\r\nhigher than the amount mentioned in the schedule appended to\r\nthis chapter. While fixing the compensation in between\r\nRs.4,00,000/- to 7,00,000/- i.e minimum and maximum, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">trial Court judges shall have to appreciate the evidence on\r\nrecord in terms of rule 9 (3) (i) to (xii) of Rules 2020. It is to be\r\nremembered that in all cases under the POCSO Act, the grant\r\nof maximum compensation of Rs.7,00,000/- is not mandatory.\r\nOn the other hand the trial court has to consider the evidence\r\non record, the need of medical expenses, the money required\r\nfor rehabilitation so as to bring the victim child to main stream\r\nfor leading dignified life. The role of trial court while awarding\r\ninterim and final compensation in attending to the rehabilitation\r\nprocess of victim child is more onerous and adopt pragmatic\r\napproach for the welfare and well being in taking care of victim\r\nchild as a guardian for the victim child.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">21. In the present case in view of reasons recorded\r\nabove and to rehabilitate the victim, so also injury suffered by\r\nthe victim, in my opinion the maximum compensation\r\nRs.700,000/- has to be granted in view of peculiar facts of the\r\npresent case and disablement of the victim girl. The NALSA\'s\r\nscheme 2018 provides for 50% enhancement if the victim is\r\nminor. In the present case victim is not only minor, but also\r\nmentally retarded and dumb, therefore in terms of Rule 9 (3) of</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">NALSA\'s scheme 50% of Rs.700,000/- has to be awarded which\r\nwould comes to Rs.3,50,000/-. Thus the victim is entitled for\r\ntotal compensation of (Rs.7,00,000/-+3,50,000/-)=\r\nRs.10,50,000/-.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> Appeal filed by the complainant is hereby allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'daaeb60e210202900f3f8344db30d55f.jpeg', '4d5757ccc8edf9d2baa035cff0308950.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-12', 1, '', '', '2023-07-11 12:10:08', '2023-07-12 12:34:24'),
(3186, 'cyUR1Jbu2fmimzlQy3gp51dBi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Limitation Act does not apply Central Goods and Services Tax Act since the Limitation Act will apply only if it is extended to the special statute. Kerala High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Penuel Nexus Pvt Ltd Vs The Additional Commissioner Headquarters and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>WP(C) 15574 of 2023 decided on 13 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice C.S. Dias.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Can an appeal be filed beyond the time period\r\nprescribed under Section 107 (4) of the Central Goods\r\nand Services Tax Act, 2007 is the point posed in this\r\nwrit petition. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioner is a firm engaged in direct\r\nmarketing. The petitioner had a GST registration. Due to\r\nthe Covid-19 pandemic, the petitioner\'s business got\r\naffected and was prevented from filing the returns on\r\ntime. The respondents, by Ext.P2 order, cancelled the\r\nGST registration. Even though the petitioner preferred\r\nExt.P3 appeal before the 1st respondent, by Ext.P4\r\norder, the appeal was rejected on the ground of delay.\r\nExts.P2 and P4 are arbitrary and unjustifiable. Hence,\r\nthe writ petition.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Section 107(4) of the Central Goods and\r\nServices Tax Act, 2017 reads thus:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\"><i>(4) </i></span><span style=\"font-size: 12pt;\"><i>“The Appellate Authority may, if he is satisfied that\r\nthe appellant was prevented by sufficient cause from\r\npresenting the appeal within the aforesaid period of\r\nthree months or six months, as the case may be, allow it\r\nto be presented within a further period of one month</i>”.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Interpreting an analogous provision under the\r\nCentral Excise Act, 1944, the Honourable Supreme\r\nCourt in Singh Enterprises v. Commissioner of\r\nCentral Excise, Jamshedpur and others [(2008) 3\r\nSCC 70] held as follows:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“8. The Commissioner of Central Excise (Appeals)\r\nas also the Tribunal being creatures of statute are not\r\nvested with jurisdiction to condone the delay beyond the\r\npermissible period provided under the statute. The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">period up to which the prayer for condonation can be\r\naccepted is statutorily provided. It was submitted that the\r\nlogic of Section 5 of the Limitation Act, 1963 (in short\r\n“the Limitation Act”) can be availed for condonation of\r\ndelay. The first proviso to Section 35 makes the position\r\nclear that the appeal has to be preferred within three\r\nmonths from the date of communication to him of the\r\ndecision or order. However, if the Commissioner is\r\nsatisfied that the appellant was prevented by sufficient\r\ncause from presenting the appeal within the aforesaid\r\nperiod of 60 days, he can allow it to be presented within a\r\nfurther period of 30 days. In other words, this clearly\r\nshows that the appeal has to be filed within 60 days but\r\nin terms of the proviso further 30 days\' time can be\r\ngranted by the appellate authority to entertain the\r\nappeal. The proviso to sub-section (1) of Section 35\r\nmakes the position crystal clear that the appellate\r\nauthority has no power to allow the appeal to be\r\npresented beyond the period of 30 days. The language\r\nused makes the position clear that the legislature\r\nintended the appellate authority to entertain the appeal\r\nby condoning delay only up to 30 days after the expiry of\r\n60 days which is the normal period for preferring appeal.\r\nTherefore, there is complete exclusion of Section 5 of the\r\nLimitation Act. The Commissioner and the High Court\r\nwere therefore justified in holding that there was no\r\npower to condone the delay after the expiry of 30 days\'\r\nperiod”.</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. In CCE & Customs v. Hongo India (P) Ltd.\r\n[(2009) 5 SCC 791], the Honourable Supreme Court,\r\nagain interpreting Section 35 of the Central Excise Act,\r\n1944, reiterated its earlier view by holding thus:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“31. In this regard, it is useful to refer to a recent decision\r\nof this Court in Punjab Fibres Ltd. [(2008) 3 SCC 73]\r\nThe Commissioner of Customs, Central Excise, Noida was\r\nthe appellant in this case. While considering the very same\r\nquestion, namely, whether the High Court has power to\r\ncondone the delay in presentation of the reference under\r\nSection 35-H (1) of the Act, the two-Judge Bench taking\r\nnote of the said provision and the other related provisions\r\nfollowing Singh Enterprises v. CCE [(2008) 3 SCC 70]\r\nconcluded that : (Punjab Fibres Ltd. case [(2008) 3 SCC\r\n73], SCC p. 75, para 8)</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“8. … the High Court was justified in holding that there\r\nwas no power for condonation of delay in filing reference\r\napplication.”</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>32. As pointed out earlier, the language used in Sections\r\n35, 35-B, 35-EE, 35-G and 35-H makes the position clear\r\nthat an appeal and reference to the High Court should be\r\nmade within 180 days only from the date of\r\ncommunication of the decision or order. In other words,\r\nthe language used in other provisions makes the position\r\nclear that the legislature intended the appellate authority\r\nto entertain the appeal by condoning the delay only up to\r\n30 days after expiry of 60 days which is the preliminary\r\nlimitation period for preferring an appeal. In the absence <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of any clause condoning the delay by showing sufficient\r\ncause after the prescribed period, there is complete\r\nexclusion of Section 5 of the Limitation Act. The High\r\nCourt was, therefore, justified in holding that there was no\r\npower to condone the delay after expiry of the prescribed\r\nperiod of 180 days”.</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. The Central Goods and Services Tax Act is a\r\nspecial statute and a self-contained code by itself.\r\nSection 107 has an inbuilt mechanism and has impliedly\r\nexcluded the application of the Limitation Act. It is trite,\r\nthat the Limitation Act will apply only if it is extended to\r\nthe special statute. It is also rudimentary that the\r\nprovisions of a fiscal statute have to be strictly\r\nconstrued and interpreted.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. On an appreciation of the language of Section\r\n107(4) and the above analysed factual and legal\r\nbackground, this Court is of the view that there is no <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">illegality in the action of the 1st respondent in rejecting\r\nthe appeal as time-barred. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The writ petition is meritless and is\r\nconsequentially dismissed. </b></span></p>', 'c854e316d5b82bd0735a2c8b53a3e679.jpeg', 'c4bbd406675fd507edffb3af7110b8ae.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-12', 1, '', '', '2023-07-11 13:08:17', '2023-07-12 06:38:50');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3187, 't3Q1ulqB8ucDHhXAj4QE4CUsP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Hindu Succession Act. Property purchased by husband in the name of his wife would be her absolute property in view of Section 14. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Venkatesh and others Vs Venkatamma and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R.F.A 2027 of 2019 decided on 1 August 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.R. Krishna Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>This appeal by the unsuccessful plaintiffs is directed against the impugned judgment and decree dated 06.07.2019 passed in O.S.No.3358/2009 by the XXXVIII Additional City Civil and Sessions Judge, Bengaluru (for short \"the trial Court\"), whereby the said suit filed by the appellants-plaintiffs against the respondents -defendants for partition and separate possession of their alleged share in the suit schedule immovable properties and for other reliefs was dismissed by the trial Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>The material on record discloses that plaintiff Nos.1 and 2 are the sons of late Ramaiah @ Hucchaiah. Defendant No.1, Venkatamma is the mother of the plaintiffs and wife of late Ramaiah @ Hucchaiah, while defendant Nos.2 to 4 are their other children and siblings of the plaintiffs. It is contended that the plaintiffs, defendants and their father constituted a Hindu Undivided Family and that during his lifetime, late Ramaiah @ Hucchaiah acquired the suit schedule properties in the name of defendant No.1, who was a house wife and did not have any source of income to purchase the said properties. It was also contended that defendant No.2 brain washed defendant No.1 and obtained a gift deed dated 09.05.2008 in his favour though defendant No.1 did not have any right to do so. The plaintiffs got issued a legal notice dated 19.03.2009 to defendant Nos.1 and 2, who got issued untenable reply, due to which the plaintiffs instituted the aforesaid suit.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>Defendant Nos.1 and 2 filed separate written statements opposing, denying and disputing the plaint averments and the contentions put forth by the plaintiffs. It was contended that the suit schedule properties were the separate and self-acquired properties of defendant No.1 and the plaintiffs did not have any manner of right, title, interest or possession over the same. It was also contended that the first defendant\'s father Mudalagiriyappa was working in military service and had given her money to acquire properties as per her choice. Defendant No.1 was also doing milk vending business and with the income from the same and with financial support from her father and other relatives and friends, defendant No.1 purchased the suit schedule property without any financial assistance from her husband, late Ramaiah @ Hucchaiah, who was working as a coolie. It was also contended that defendant No.1 gifted a portion of the suit schedule properties in favour of defendant No.2 out of her own free will and volition and without any compulsion and duress and pursuant thereto defendant No.2 has become sole and absolute owner of the said portion of the suit schedule properties.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space:pre\">	</span>The following points arise for my consideration in the present appeal:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> i.<span style=\"white-space:pre\">	</span>Whether the trial Court was justified in coming to the conclusion that the suit schedule properties were the absolute, separate, exclusive and self-acquired properties of defendant No.1 and that the plaintiffs had failed to establish that the properties had been acquired by late Ramaiah @ Hucchaiah in the name of his wife, Venkatamma, defendant No.1? </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ii.<span style=\"white-space:pre\">	</span>Whether the trial Court was justified in coming to the conclusion that the plaintiffs had failed to establish that the Gift Deed dated 09.05.2008 executed by defendant No.1 in favour of defendant No.2 in respect of plaint \'B\' schedule property is null and void?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>iii.<span style=\"white-space:pre\">	</span>Whether the impugned judgment and decree passed by the trial Court warrants interference by this Court in the present appeal?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Re. Point No.(i) :</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.1<span style=\"white-space:pre\">	</span>A perusal of the pleadings and evidence of the parties will also indicate that the trial Court has come to the correct conclusion that defendant No.1 had independent source of income and was carrying on milk business as well as was given financial assistance from her father. The trial Court also noted that the oral and documentary evidence of the appellants was not sufficient to establish that late Ramaiah @ Hucchaiah had sufficient income including surplus income and financial capacity to purchase the suit schedule properties in the name of defendant No.1. So also, the trial Court has taken into account Section 14(1) of the Hindu Succession Act in order to come to the conclusion that the suit schedule properties possessed by defendant No.1 got enlarged and blossomed into her absolute Sthreedhana property and the plaintiffs did not have any right over the same.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.3<span style=\"white-space:pre\">	</span>As rightly held by the trial Court, the suit schedule properties which were undisputedly possessed by defendant No.1, Smt. Venkatamma in her own name stood enlarged and blossomed into her absolute property under Section 14(1) of the Hindu Succession Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>In this context, the Apex Court has reiterated the said principle in the following judgments: a)<span style=\"white-space:pre\">	</span>In the case of Gangamma and Others v. G. Nagarathnamma and Others - AIR 2009 SC 2561, it is held as under: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>9. Section 14(1) of the Hindu Succession Act, 1956 (hereinafter referred to as “the Act”) has a bearing on the issue. As the properties at Items 1 and 2 are recorded in the name of the appellant, in the absence of any evidence to the contrary in this case, the appellant by operation of Section 14(1) of the said Act is the full owner of those properties. In the facts of this case discussed above it has to be accepted that those properties are not joint properties but the appellant is the sole owner of those properties.<br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>10 [Ed.: Para 10 corrected vide Official Corrigendum No. F.3/Ed.B.J./98/2009 dated 27-7-2009.] . The principle laid down in Section 14(1) of the said Act has been read by courts in a very comprehensive manner since the said Act overrides the old law on stridhana in respect of properties possessed by a female Hindu. In Eramma v. Veerupana [AIR 1966 SC 1879] Ramaswami, J. speaking for the Court held that Section 14(1) of the Act contemplates that a female Hindu, who in the absence of the said provision would have been a limited owner of the property, will now become full owner by virtue of the said section. Such female Hindu will have all powers of disposition to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>13.<span style=\"white-space:pre\">	</span>In view of such consistent views taken by this Court on the interpretation of Section 14, we hold that Section 14(1) of the said Act would apply in respect of the properties which stand in the name of the appellant and the appellant would be the full owner of those properties.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i> 14.<span style=\"white-space:pre\">	</span>Therefore, the order of the High Court cannot be upheld and is set aside. The order of the learned trial Judge is affirmed. The appeal is allowed to the extent indicated above. There is no order as to costs.\"</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>10.4<span style=\"white-space:pre\">	</span>In this context, it is also relevant to refer to Section 3 of the Benami Transaction (Prohibitions) Act, 1988 (for short the said Act of 1988\") which reads as under: </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>\"3. Prohibition of benami transactions-</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i> (1)<span style=\"white-space:pre\">	</span>No person shall enter into any benami transaction.</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>(2)<span style=\"white-space:pre\">	</span>Nothing in sub-section (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife of the unmarried daughter. (3)<span style=\"white-space:pre\">	</span>Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\" style=\"\"><b><i> (4)<span style=\"white-space: pre;\">	</span>Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence under this section shall be non-cognizable and bailable.\"</i></b></font><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>A plain reading of Section 3(2) of the said Act of 1988, will indicate that there is a presumption, unless the contrary is proved that the property purchased by the husband in the name of his wife or unmarried daughter is for their benefit; in other words, unless it is proved that the husband purchased the property with his own funds in the names of his wife or unmarried daughter and also establishes that the same was not for their benefit, there would arise a presumption that the property was for the benefit of the wife or unmarried daughter and neither the husband nor the children claiming under him would be entitled to put forth any claim over the said property, which would be barred by Section 4 of the said Act of 1988. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10.5<span style=\"white-space:pre\">	</span>In the instant case, as stated supra, the plaintiffs had not placed any legal or acceptable evidence to establish that late Ramaiah @ Hucchaiah had purchased the suit schedule properties in the name of his wife, defendant No.1, Venkatamma and that the same was not for her benefit; in fact, the material on record clearly establishes that from the time the properties was purchased in her name in the year 1966, the khata has been registered in the name of defendant No.1, who had not only paid taxes, but also declared and dealt with the suit schedule properties as it sole and absolute owner without any objection or claim by late Ramaiah @ Hucchaiah or any of their children. Under these circumstances, having regard to the material on record and as held by the Apex Court in the aforesaid judgments, in the light of Section 14(1) of the Hindu Succession Act and Section 3(2) of the said Act of 1988, I am of the considered opinion that the trial Court was fully justified in coming to the conclusion that the suit schedule properties were the absolute and self acquired properties of defendant No.1 and that the plaintiffs were not entitled to any share in the same.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> Accordingly, point No.(i) is answered against the appellants<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>Re. point No.(ii) :</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>11.<span style=\"white-space:pre\">	</span>The plaintiffs have contended that defendant No.2 obtained gift deed dated 09.05.2008 in respect of plaint \'B\' schedule property by brain washing defendant No.1. However, both defendant Nos.1 and 2 disputed and denied the said allegations.   In this context, it is relevant to note that apart from the fact that the testimonies of defendant No.1 (DW.1) and defendant No.2 (DW.2) have been unimpeached, uncontroverted and unchallenged in the cross-examination, they have also examined and independent witness S. Ravikumar (DW.3), who has also withstood cross-examination and has spoken with regard to execution and registration of the Gift Deed produced and marked as Ex.D-9.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>11.1 Upon re-appreciation and re-evaluation of the entire material on record, I am of the considered opinion that even this finding recorded by the trial Court does not suffer from any illegality and infirmity nor can the same be said to be suffering from any perversity warranting interference by this Court in the present appeal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b> Accordingly, point No.(ii) is also answered in the negative against the appellants.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>Re. Point No.(iii) : </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>12.<span style=\"white-space:pre\">	</span>While dealing with point Nos.(i) and (ii) supra, I have already come to the conclusion that the trial Court has correctly and properly considered and appreciated the entire material on record and has recorded categorical findings of fact that the suit schedule properties were the absolute and self-acquired properties of defendant No.1 and that the Gift Deed executed by her in favour of defendant No.2 was legal and valid and that the plaintiffs do not have any manner of right, title, interest, possession or share over the properties and that their claim was liable to be rejected. Upon re- appreciation and re-evaluation of the entire material on record, I am of the considered opinion that the impugned judgment and decree passed by the trial Court is correct and proper and does not warrant interference by this Court in the present appeal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b> Accordingly, point No.(iii) is answered against the appellants.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>In the result, I do not find any merit in the present appeal and the same is hereby dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f20bb17d1ff202cd3cce727b21dea0ee.JPG', '9240c3da117bb09645584fc8c35c9815.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-12', 1, '', '', '2023-07-11 15:27:33', '2023-07-12 13:42:02'),
(3188, 'bQ9QWT1uAmm7BKz8NYb7nNP2S', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Sexual harassment of law intern has a chilling effect on the entire legal profession”. Karnataka High Court refuses to quash criminal proceedings against Advocate.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rajesh K.S.N Vs State and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 10550 of 2022 decided on 11 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court calling in question\r\nproceedings in C.C.No.2108 of 2022 pending before the JMFC (III\r\nCourt), Mangaluru arising out of charge sheet in Crime No.78 of\r\n2021 of Mangalore Women Police Station registered for offences\r\npunishable under Sections 376, 376(2)(f), 376(2)(k), 376C(a), 511,&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">354A, 354B, 354C, 354D, 506, 384, 388, 389, 204, 203, 212,\r\n120B, 179, 202 r/w 149 of the IPC.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 2. The facts adumbrated, are as follows:-\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> The petitioner is a practicing Advocate. The 2nd respondent is\r\nthe complainant. It is the case of the prosecution that the 2nd\r\nrespondent, a second year law student of the SDM College gets to\r\nknow the petitioner through one Mr. Dhruva Hegde, a classmate\r\nand friend. It is the case that the 2nd respondent was in\r\nrequirement of work-cum-internship and, therefore, informs\r\nMr. Dhruva Hegde to search out a place for internship. It is then\r\nMr. Dhruva Hegde introduced to his brother-in-law one\r\nMr. Shivanandana who was in contact with the petitioner. It is on\r\nthe recommendation of Mr. Shivanandana, the complainant joins\r\nthe office of the petitioner on 14-08-2021. It is said that the\r\npetitioner had narrated of the job and also indicated that the intern\r\nwill have to stay up to 8.00 p.m. It was further informed that a\r\nstipend of `6,000/- per month would be paid. The job began from\r\n18-08-2021 and days passed by. The petitioner is said to have&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">befriended the complainant by communications through whatsapp\r\nmessages. The complainant is said to have reacted to such\r\nwhatapp messages without knowing the intention of the petitioner.\r\nIt is further alleged that the petitioner used to send CCTV footage\r\nand pictures of the complainant and was continuously watching the\r\nprivate movements of the complainant like combing hair, washing\r\nface etc. through the CCTV footage and used to send the same as\r\npictures to the complainant.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. It is not in dispute that the complainant joins the office of\r\nthe petitioner on 18-08-2021 to work as an intern at the office of\r\nthe petitioner for a stipend of `6,000/- per month. The happenings\r\nafter joining of the complainant in the office of the petitioner till the\r\ndate of infamy i.e., 25-09-2021 are all narrated hereinabove. They\r\nwould not require any reiteration. The incident happens on\r\n25-09-2021 and several correspondences have taken place\r\nthereafter up to the date of filing of the complaint on 18-10-2021.\r\nThe crime comes to be registered on 18-10-2021 based upon the\r\ncomplaint made by the complainant.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Therefore, if the ingredients of the complaint are seen,\r\nthe petitioner fits in all these positions. He is in the position of a\r\nteacher or in a position of trust over a complainant. In terms of\r\nSection 376(2)(k) he is in position of control or dominance and in\r\nterms of Section 376C(a) he is in position of authority, as the\r\ncomplainant was an intern working under the petitioner. It is to be\r\nseen whether being in that position the petitioner has committed an\r\nact of rape. The complaint, the summary of the charge sheet and\r\nSection 164 Cr.P.C. statement are as narrated hereinabove.\r\nTherefore, it becomes necessary to notice Section 511 of the IPC\r\nwhich is also alleged and upon which much emphasis is laid by the\r\nlearned counsel for the petitioner.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Section 511, deals with punishment for attempt to commit offences\r\npunishable with imprisonment for life or other imprisonment.\r\nWhoever attempts to commit an offence or causes such an offence\r\nto be committed or does act towards the commission of offence\r\nshall, where no express provision is made under the Code, would be\r\npunished with imprisonment which may extend to one-half of the\r\nimprisonment for life as the case may be or one half of the longest\r\nterm of imprisonment. Therefore, the soul of the provision is\r\n‘attempt’ to commit an offence. The petitioner admits occurrence\r\nof the incident. But, contends that it is only a preparation or\r\nattempt and not commission.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. This Court, in exercise of its jurisdiction under Section\r\n482 of the Cr.P.C., cannot delve deep at this stage, as to what has\r\ntranspired after the intention, preparation and attempt, to allow the\r\npetition and set aside the order of taking of cognizance. Outraging\r\nthe modesty or all other acts performed by the petitioner would\r\nundoubtedly mean intention, preparation and attempt. I decline to\r\naccept that the commission of offence should be examined by this\r\nCourt on the basis of the charge sheet so filed and the statements\r\nso made by all the witnesses. The statement of co-intern/CW-2 is\r\nalso taken under Section 164 of the Cr.P.C. These are all to be\r\nexamined during the trial. In the teeth of what is afore-narrated\r\ninterference at this stage, is not called for.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. If, on the peculiar facts of this case, this Court were to\r\ninterfere under Section 482 of the Cr.P.C., it would run foul of\r\nplethora of judgments of the Apex Court which direct High Courts\r\nexercising jurisdiction under Section 482 of the Cr.P.C., not to\r\ninterfere, if the issue is shrouded with seriously disputed questions\r\nof fact. The Apex Court in the case of KAPTAN SINGH v. STATE\r\nOF UTTAR PRADESH has held as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\r\n“ … … …\r\n9.1. At the outset, it is required to be noted that in\r\nthe present case the High Court in exercise of powers\r\nunder Section 482 CrPC has quashed the criminal\r\nproceedings for the offences under Sections 147, 148,\r\n149, 406, 329 and 386 IPC. It is required to be noted\r\nthat when the High Court in exercise of powers under\r\nSection 482 CrPC quashed the criminal proceedings, by\r\nthe time the investigating officer after recording the\r\nstatement of the witnesses, statement of the\r\ncomplainant and collecting the evidence from the\r\nincident place and after taking statement of the\r\nindependent witnesses and even statement of the\r\naccused persons, has filed the charge-sheet before the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">learned Magistrate for the offences under Sections 147,\r\n148, 149, 406, 329 and 386 IPC and even the learned\r\nMagistrate also took the cognizance.</span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>If the petition under Section 482\r\nCrPC was at the stage of FIR in that case the allegations\r\nin the FIR/complaint only are required to be considered\r\nand whether a cognizable offence is disclosed or not is\r\nrequired to be considered. However, thereafter when\r\nthe statements are recorded, evidence is collected and\r\nthe charge-sheet is filed after conclusion of the\r\ninvestigation/inquiry the matter stands on different\r\nfooting and the Court is required to consider the\r\nmaterial/evidence collected during the investigation.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>At such stage, the High Court cannot appreciate\r\nevidence nor can it draw its own inferences from\r\ncontents of FIR and material relied on. It is further\r\nobserved it is more so, when the material relied on is\r\ndisputed. It is further observed that in such a situation,\r\nit becomes the job of the investigating authority at such\r\nstage to probe and then of the court to examine\r\nquestions once the charge-sheet is filed along with such\r\nmaterial as to how far and to what extent reliance can\r\nbe placed on such material.&nbsp;<br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9.2....&nbsp;</span></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">It is\r\nfurther observed that inherent jurisdiction under\r\nSection 482 CrPC though wide is to be exercised\r\nsparingly, carefully and with caution, only when such\r\nexercise is justified by tests specifically laid down in the\r\nsection itself. It is further observed that appreciation of\r\nevidence is not permissible at the stage of quashing of\r\nproceedings in exercise of powers under Section 482\r\nCrPC</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>12. Therefore, the High Court has grossly erred in\r\nquashing the criminal proceedings by entering into the\r\nmerits of the allegations as if the High Court was\r\nexercising the appellate jurisdiction and/or conducting\r\nthe trial. The High Court has exceeded its jurisdiction in\r\nquashing the criminal proceedings in exercise of powers\r\nunder Section 482 CrPC.&nbsp;</i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Prior to the judgment in KAPTAN SINGH, the Apex Court in the\r\ncase of PRITI SARAF v. STATE OF NCT OF DELHI7\r\n has held as\r\nfollows</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>23. It being a settled principle of law that to\r\nexercise powers under Section 482 CrPC, the complaint in\r\nits entirety shall have to be examined on the basis of the\r\nallegation made in the complaint/FIR/charge-sheet and\r\nthe High Court at that stage was not under an obligation\r\nto go into the matter or examine its correctness.\r\nWhatever appears on the face of the\r\ncomplaint/FIR/charge-sheet shall be taken into\r\nconsideration without any critical examination of the\r\nsame. The offence ought to appear ex facie on the\r\ncomplaint/FIR/charge-sheet and other documentary\r\nevidence, if any, on record.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>28. It is thus settled that the exercise of inherent\r\npower of the High Court is an extraordinary power which\r\nhas to be exercised with great care and circumspection\r\nbefore embarking to scrutinise the\r\ncomplaint/FIR/charge-sheet in deciding whether the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">case is the rarest of rare case, to scuttle the prosecution\r\nat its inception.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n29. In the matter under consideration, if we try to\r\nanalyse the guidelines of which a reference has been\r\nmade, can it be said that the allegations in the\r\ncomplaint/FIR/charge-sheet do not make out a case\r\nagainst the 2nd respondent or do they disclose the\r\ningredients of an offence alleged against the\r\n2\r\nnd respondent or the allegations are patently absurd and\r\ninherently improbable so that no prudent person can ever\r\nreach to such a conclusion that there is sufficient ground\r\nfor proceeding against the 2nd respondent.”</span><span style=\"font-size: 12pt;\">&nbsp;</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>&nbsp;<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. In the light of the aforesaid judgments of the Apex Court,\r\nin the considered view of this Court, it is a matter of evidence, in a\r\nfull blown trial for the petitioner to come out clean. The concerned\r\nCourt is yet to frame charges and there is no reason to believe that\r\nthe Court would not apply its mind while framing charges.\r\nTherefore, none of the submissions made by the learned counsel for\r\npetitioner merit any acceptance.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 22. Judged from these spectrum and analysed on the\r\naforesaid prismatic analysis, the irresistible conclusion, is that\r\nthere is no warrant of interference at the hands of this Court at this\r\njuncture, to intervene, interdict or obliterate those allegations of\r\nrape, preparation and attempt for an offence against the petitioner&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as any interference by this Court would be rendering\r\nplaudits to the wanton lust and vicious appetite of the\r\npetitioner. If a naive student of law, enters the office of an\r\nAdvocate, as an intern; in turn gets to face these horrendous\r\nacts, it would have a chilling effect on the entire practice and\r\nprofession. Therefore, it is for the accused to come out clean in a\r\nfull blown trial.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 23. For the aforesaid reasons, finding no merit in the petition,\r\nthe petition stands dismissed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>It is made clear that the observations made in the course of\r\nthe order are only for the purpose of consideration of the case of\r\nthe petitioner under Section 482 of Cr.P.C. and the same shall not\r\nbind or influence the proceedings pending against him before the\r\nconcerned Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\nConsequently, I.A.No.1 of 2022 also stands disposed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9b907270c50fd9c3a378f8e0c427612c.jpeg', '8f286b41477c059730f96882656ecb63.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-11', 1, '', '', '2023-07-11 16:52:48', '2023-07-11 17:40:02');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3189, '1x8YMZC37WdPRb5jVTxxGmL08', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for specific performance. Genuineness of the sale agreement. Purchase of stamp paper under the heading “Bond” instead of “Conveyance” is a factor to be taken note of while considering the genuineness of the sale agreement. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bhagyamma and others Vs Sheela.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular First Appeal 609 of 2017 decided on 6 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.B. Prabhakara Sastry.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This is a defendants’ appeal. The present\r\nrespondent as a plaintiff had instituted a suit against the\r\npresent appellants, arraigning them as defendants in\r\nO.S.No.53/2014, in the Court of the learned Senior Civil\r\nJudge & JMFC, K.R. Nagar (hereinafter for brevity referred\r\nto as “the Trial Court”), seeking for specific performance of\r\nthe contract, by directing the defendant No.1 to execute a\r\nregular Sale Deed in favour of the plaintiff and getting it\r\nregistered in respect of the suit schedule property and to\r\ndeliver the possession and other reliefs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The summary of the plaint of the plaintiff in the\r\nTrial Court (the present respondent) is that, on the date </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">07-08-2014, the first defendant (first appellant herein), for\r\nher legal necessities, i.e. to clear the old loan and for\r\nperformance of the marriage of her daughter, entered into\r\nan agreement for sale of suit schedule property with the\r\nplaintiff, agreeing to sell the said property bearing Survey\r\nNo.226/1, measuring 01 Acre 14 Guntas, situated at\r\nArjunahally Village, Hosa Agrahara Village, K.R.Nagara\r\nTaluk, for a total sale consideration of a sum of\r\n`12,42,000/-. Under the said agreement, on the same\r\nday, the first defendant received a sum of `1,25,000/- as\r\nan advance amount in the presence of the witnesses and\r\nagreed to receive the balance sale consideration amount at\r\nthe time of executing the registered Sale Deed, which Sale\r\nDeed she agreed to execute and register whenever she\r\nwas called upon to do so. She also agreed to get the\r\nsurvey sketch, encumbrance Certificate and other\r\ndocuments which were required for registration, at the\r\nearliest.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\nIt is further the case of the plaintiff before the Trial\r\nCourt that, the first defendant, after executing an</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">agreement for sale in favour of the plaintiff, with an\r\nintention to defeat the claim of the plaintiff, executed\r\nanother registered sale agreement dated 22-08-2014 in\r\nfavour of defendant No.2 - Sri. Subbanaika (appellant No.2\r\nherein) with respect to the very same property and\r\nanother property bearing Survey No.227/2 measuring 0.15\r\nGuntas for a total sale consideration of a sum of\r\n`5,63,000/- and thus the conduct of the defendant No.1\r\nwas to cheat the plaintiff.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The plaintiff has further stated that she has always\r\nbeen ready and willing to perform her part of the promise\r\nunder the contract by paying the balance sale\r\nconsideration amount and to obtain the registered Sale\r\nDeed in her favour. The plaintiff has stated that on the\r\ndate 09-09-2014, she demanded the defendant No.1 to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">execute a registered Sale Deed in her favour by receiving\r\nthe remaining consideration amount, for which, the\r\ndefendant No.1 orally stated that, she had already\r\nexecuted a Release Deed in favour of her brother. Then\r\nthe plaintiff approached the Sub-Registrar’s Office and\r\nfound that defendant No.1 had registered a Sale Deed and\r\nalso a Release Deed in favour of the defendant No.2. The\r\nplaintiff, once again, approached the defendant No.1,\r\nasking her to execute the Sale Deed by taking the balance\r\nsale consideration, however, the said request and demand\r\nwas refused by the said defendant No.1. This made the\r\nplaintiff to cause a legal notice dated 17-09-2014 upon the\r\ndefendant No.1, calling upon her to execute a registered\r\nSale Deed as per the agreement for sale dated\r\n07-08-2014.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. In the light of the above, the points that arise for\r\nconsideration of this Court in this appeal are:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n[i] Whether the plaintiff has proved that\r\nthe first defendant entered into an agreement with\r\nher on the date 07-08-2014, agreeing to sell the\r\nsuit schedule property for a sum of `12,42,000/-\r\nand received a sale advance amount of a sum of\r\n`1,25,000/- from the plaintiff and further agreed to\r\nexecute a registered Sale Deed whenever the\r\nplaintiff would call upon her to execute the same?</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n[ii] Whether the first defendant has proved\r\nthat the alleged agreement at Ex.P-1 is not an\r\nagreement for sale and that she has not executed\r\nany agreement for sale, much less the one at\r\nEx.P-1 in favour of the plaintiff? </i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>[iii] Whether the plaintiff further proves that\r\nshe has always been ready and willing to perform\r\nher part of the contract?\r\n</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i> [iv] Whether the impugned judgment and\r\ndecree warrants any interference at the hands of\r\nthis Court?</i> <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. Article 12 in the Schedule to the Karnataka\r\nStamp Act, also prescribes the proper Stamp duty on the\r\nsaid instrument ‘Bond’, taking the amount or the value\r\nsecured under the said instrument. It also shows that the\r\n‘Bond’ under Article 12 is different from Administration\r\nBond (No.2) Bottomry Bond(No.13), Customs Bond\r\n(No.23) Indemnity Bond (No.29), Respondentia Bond <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(No.46), Security Bond (No.47). Therefore, the document\r\nat Ex.P-1, which contains two separate sheets, each with\r\ne-Stamp printing upon it describes the background as\r\nArticle 12 ‘Bond’. Admittedly, the said e-Stamping paper\r\nwas not issued describing it as having issued under\r\nArticle 20 which is ‘For Conveyance’. Thus, it further\r\ncreates a doubt as to whether the nature of transaction\r\nwas the one for agreement for sale of an immovable\r\nproperty.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>It is not the case of the plaintiff that though the\r\ndocument alleged to have been executed by the defendant\r\nNo.1 was an agreement for sale of immovable property,\r\nhowever, there was improper description of the document\r\nat Ex.P-1 as “Article 12 Bond”. In such a situation, the\r\ndescription of the e-Stamp could have been rectified by\r\nobtaining an endorsement on the instrument by the Deputy\r\nCommissioner as per Rule 15 of Chapter IV of the\r\nKarnataka Stamp Rules, 1958 (hereinafter for brevity\r\nreferred to as “the Karnataka Stamp Rules”). Admittedly, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">no such attempt has been made by the plaintiff in the\r\nmatter.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">On the other hand, the contention of the defendant\r\nNo.1 that she had taken a loan from the plaintiff of a sum\r\nof `1,25,000/-, and at that time, her signature was\r\nobtained on blank Stamp papers, promising her that the\r\nsame would be returned to her once she repays the loan\r\namount, moves more closer to the probability than the\r\ncontention of the plaintiff that the defendant No.1 had\r\nexecuted the document at Ex.P-1, knowing that it is an\r\nagreement for sale of the immovable property.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. It is an admitted fact that, Ex.P-1 the alleged\r\nagreement for sale of immovable property bears two\r\ne-Stamp papers, each with separate embossing of\r\ne-Stamping upon it. Page No.1 of first sheet shows the\r\npayment of Stamp duty of `200/-, whereas, the other\r\nsheet of the same Exhibit shows the payment of Stamp\r\nduty of `100/-. Though in total, the Stamp duty paid is a\r\nsum of `300/-, however, they are under two separate\r\ne-Stamp papers. Rule 11 of Chapter III of the PDES Rules <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of 2009 prescribes as to what are all the minimum details\r\nto be mentioned on the e-Stamp Certificate and also other\r\nrequirements. Rule 11(a), 11(f) and 11(g) are relevant in\r\nthis case.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Further Chapter VI of PDES Rules of 2009 speaks\r\nabout the ‘Procedure for Issue of e-Stamp Certificate’. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rule 20, Rule 21, Rule 22 and Rule 25 are the relevant\r\nRules which requires consideration in this case.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>The above Rule 11(a), Rule 11(f), Rule 11(g), Rule\r\n20, Rule 21, Rule 22 and Rule 25 reads as below:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>Rule 11. Specification of software to be used\r\nby Central Record Keeping agency.- The Central\r\nRecord Keeping Agency, in consultation with the\r\nAppointing Authority, shall design and use such\r\nsoftware, to indicate the following minimum details\r\non the e-Stamp Certificate, and also for other\r\nrequirements.-</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><i>Rule 20. Application for e-Stamp Certificate.-\r\nAny person paying Stamp duty may approach any of\r\nthe Approved Intermediaries/Authorised Collection\r\nCentres and furnish the requisite details in Form 3\r\nalong with the payment of Stamp duty amount, for\r\ngetting the e-Stamp Certificate.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-size: 12pt;\">\r\nRule 21. Mode of payment of Stamp duty.- (1)\r\nthe payment for purchase of e-Stamp Certificate may\r\nbe made by means of cash, pay order, Bank draft,\r\nElectronic Clearing System, Real time Gross\r\nSettlement or by any other mode of transferring\r\nfunds as authorized by the appointing Authority. </span><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>Rule 22. Issue of e-Stamp Certificate.-</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>(1)\r\nThe authorized Official of the Approved Intermediary\r\nshall, on the payment made under Rule 21, enter the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">requisite information and details as provided by the\r\napplicant in the application Form 3 in the computer\r\nsystem, get the correctness of such entered details\r\nverified by the applicant, take his signature on the\r\napplication as proof of verification, download the eStamp Certificate (vide Annexure-A1), take out its\r\nprint, sign with date and affix his official seal on the\r\nprint-out and issue the e-Stamp Certificate to the\r\napplicant.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(2) The ink to be used in the e-Stamp\r\nCertificate printer must be non-washable permanent\r\nblack.</span><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>Rule 25. Payment of additional Stamp duty.- If\r\nfor any reason a person, who has an e-Stamp\r\nCertificate of certain denomination issued for a\r\ndocument, needs to pay an additional Stamp duty on\r\nthe same document, he may make an application in\r\nthe prescribed format (FORM 3) along with the\r\npayment of such required amount of additional\r\nStamp duty to the Approved Intermediary/Authorized\r\ncollection Centre, in accordance with the provisions\r\nof the Act.”</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30. According to the above extracted Rule 11(a) of\r\nthe PDES Rules of 2009, every e-Stamp paper will be\r\nissued upon an application for e-Stamp Certificate in Form <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">No.3 along with the payment of Stamp duty amount for\r\ngetting the e-Stamp Certificate.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">31. In the instant case, both the sheets in Ex.P-1\r\nshows that they were purchased by one Smt. Sheela, W/o.\r\nA.S. Arun Kumar, (i.e. the plaintiff). However, the first\r\nsheet (page No.1) was after collection of Stamp duty of a\r\nsum of `200/- and the second sheet (page No.3) was after\r\ncollection of a Stamp duty of a sum of `100/-. According\r\nto Rule 21 (2) the Authorised Collection Centre shall issue\r\ne-Stamp Certificate for the amount received. Thus, for two\r\nStamp papers of a sum of `200/- and `100/- at Ex.P-1, the\r\npurchaser has submitted two separate applications in Form\r\nNo.3. It is after the Approved Intermediary, on the\r\npayment made to it under Rule 21 has entered the\r\nrequisite information and details as provided by the\r\napplicant in the application Form No.3 and getting the\r\nscrutiny of such entered details by the applicant, has\r\nproceeded to issue e-Stamp Certificates to the applicant\r\n(the plaintiff) as per Rule 22 of the PDES Rules of 2009.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. According to the above extracted Rule 11(a) of\r\nthe PDES Rules of 2009, every e-Stamp paper will be\r\nissued by the Approved Intermediary or Authorised\r\nCollection Centre or Authorised Stamping Centre as defined\r\nunder Rule 2(d) of the PDES Rules of 2009. Such\r\ne-Stamping Certificate should necessarily bear a\r\ndistinguished Serial Number/Unique Identification Number\r\nof the e-Stamp Certificate which shall not be repeated on\r\nany other e-Stamp Certificate during the lifetime of the\r\ne-Stamping system. As such, the e-Stamp Certificate\r\nissued by the Authorised Intermediary is unique and there\r\nwill be no repetition of such Certificate number. Thus,\r\nirrespective of the amount of the Stamp duty paid to or\r\ncollected by the Intermediary, they issue only one e-Stamp\r\npaper bearing a Unique Identification Number. The person\r\nwho pays the Stamp duty amount and purchases the\r\ne-Stamp paper, if wants to have more number of pages,\r\nmay add bond papers which do not bear the e-Stamping\r\nCertificate/ embossing on it. For convenience, the\r\nGovernment of Karnataka has enabled the printing of such <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">bond paper through Registration and Stamps Department\r\nwhich is being sold at a very nominal cost. As could be\r\nseen in Ex.P-2 and Ex.P-3, those blank papers for\r\ndocuments printing is shown to have been sold at a sum of\r\n`2/- per sheet.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34. In the instant case, though Ex.P-1 is shown to\r\nhave been containing two e-Stamp papers purchased on\r\nthe same day, at the same time, and by the same person,\r\nbut both of them bear two different Certificate numbers\r\n(i.e. Unique Identification Numbers), as such, both of them\r\nare sure to have been issued under two requisitions in\r\nForm No.3. As such also, the contention of the defendant\r\nNo.1 that she signed on blank Stamp papers and the\r\nargument of the learned counsel for the defendant No.1\r\nthat page Nos.1 and 2 which is sheet No.1 of Ex.P-1 was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">subsequently added by the plaintiff, as such, it bears two\r\nUnique Identification Numbers and does not bear the\r\nsignatures of the executants of the agreement gains more\r\nimportance.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>35. Therefore, it cannot be and also has not been\r\nthe case of the plaintiff that, since two sheets were\r\nrequired to prepare the document as per Ex.P-1, two\r\ne-Stamp papers were purchased in the denomination of a\r\nsum of `200/- and `100/- respectively.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Thus, for single payment of Stamp duty, only one\r\ne-Stamp Certificate would be issued, whereas in the case\r\non hand, two e-Stamp Certificates have been issued with\r\ntwo different Unique Identification Numbers, for\r\npreparation of a single document. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>37. These greater discrepancies, as analysed above,\r\nwith respect to e-Stamp Certificates in Ex.P-1 strengthens\r\nthe contention of the defendant No.1 that it was a loan\r\ntransaction and at the same time, weakens the case of the\r\nplaintiff about the plaintiff and the defendant No.1 entering\r\ninto an agreement for sale with respect to an immovable\r\nproperty.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>38. In addition to the above, according to Rule 28 of\r\nPDES Rules of 2009, the distinguished unique identification\r\nnumber of the e-Stamp Certificate is required to be written\r\nor typed at the top centre of each page of the instrument,\r\nwhich is lacking in Ex.P-1. Moreover, as per Rule 4 (1)(ii)\r\nof Karnataka Stamp Rules, a Stamp, which by any word or <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">words on the face of it is appropriated to any particular\r\nkind of instrument, shall not be used for an instrument of\r\nany other kind.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">39. In the instant case, apart from non-mentioning\r\nof the unique identification number on each page of Ex.P-1,\r\nas observed above, the e-Stamp Certificate was issued for\r\nthe purpose of a ‘Bond’ under Article 12 of the Karnataka\r\nStamp Act, whereas, the said e-Stamp paper is shown to\r\nhave been used for the purpose of an ‘Agreement’ for sale\r\nof an immovable property. This also adds to the doubts\r\nthat have already arisen in the case of the plaintiff and\r\nstrengthens the contention of the defendant No.1 that it\r\nwas in respect of a loan transaction.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>47. The other point of argument addressed by the\r\nlearned counsel for the plaintiff (respondent) that the\r\ncontract of Specific Performance can be oral also, is not a\r\npoint in dispute in the present matter. It is nobody’s case\r\nthat there was any oral contract between the parties.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Our Hon’ble Apex Court in the case of K.Nanjappa\r\n(D) by Lrs. Vs. R.A. Hameed alias Ameersab (D) by Lrs.\r\nAnd Anr. (supra) in paragraph 19 of its judgment has held\r\nthat, even a decree for specific performance can be\r\ngranted on the basis of an oral contract. In the very same\r\njudgment at paragraph 20, the Hon’ble Apex Court has\r\nheld that in a case where the plaintiff come forward to seek\r\na decree for specific performance of a contract of sale of\r\nimmovable property on the basis of an oral agreement or a\r\nwritten contract, heavy burden lies on the plaintiff to prove\r\nthat there was consensus ad idem between the parties for\r\nthe concluded agreement for sale of immovable property.\r\nWhether there was such a concluded contract or not would\r\nbe a question of fact to be determined in the facts and\r\ncircumstances of each individual case. It has to be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">established by the plaintiffs that vital and fundamental\r\nterms for sale of immovable property were concluded\r\nbetween the parties.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">48. In the instant case, as analysed above, the\r\nplaintiff could not able to establish that Ex.P-1 was the\r\nagreement for sale of immovable property executed by the\r\ndefendant No.1 in her favour. Several aspects which have\r\nled to improbabalise her contention have been analysed\r\nabove. It is nobody’s case that there was any oral\r\nagreement for sale of immovable property. Even according\r\nto the plaintiff also, the alleged transaction was\r\ndocumented, in which regard, she has examined PW-2 and\r\nPW-3.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>49. As analysed above, PW-3 the Deed Writer\r\nhimself has stated that he does not know as to whether the\r\ntransaction between the parties was a loan transaction or\r\nthe one relating to an immovable property. Thus, the\r\nexistence of any oral agreement also could not be\r\nestablished by the plaintiff. As such, the judgment of the\r\nHon’ble Apex Court in K. Nanjappa’s case (supra) would <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not enure to the benefit of the plaintiff. As a result, the\r\nfinding of the Trial Court on issue No.1 answering the said\r\nissue in the affirmative has since now proved to be an\r\nerroneous one, the said issue is required to be answered in\r\nthe negative. Consequently, the readiness and willingness\r\nof the plaintiff to perform her part of the contract would\r\nnot arise since the very existence of the contract has not\r\nbeen proved by her. Resultantly, she is not entitled for the\r\nrelief of specific performance of the alleged contract dated\r\n07-08-2014 and also for the relief of declaration which is\r\nsought for by her in her plaint.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>[i] The appeal filed by the defendants\r\n(appellants) stands allowed; </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c77fcd5d13cc59cf347959d2e2edcd63.jpeg', '3de21f4f649a6b96860a5c300a1e57bf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-13', 1, '', '', '2023-07-12 13:09:52', '2023-07-13 03:13:59'),
(3190, 'E1wfv4VGa0TNsLHRVavLwnGmv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Lack of intention on the part of the accused and commission of the act in the heat of passion upon sudden quarrel are the mitigating circumstances. Karnataka High Court reduces sentence from Section 302 IPC to Section 304. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Venkateshnaika Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1087 of 2017 decided on 28 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Somashekar and Justice Rajesh Rai K.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This appeal filed by the convicted Accused No.1 is\r\ndirected against the judgment of conviction and order of\r\nsentence dated 04.03.2017 passed in S.C.No.164/2015 by\r\nthe II Addl. District & Sessions Judge, Davanagere wherein\r\nthe accused No.1 is convicted for offences punishable\r\nunder Section 498A of the IPC and he is sentenced to\r\nundergo simple imprisonment for two years and to pay a\r\nfine of Rs.10,000/- and in default of payment of fine he\r\nshall undergo further simple imprisonment for one year.\r\nAccused No.1 is also convicted for the offence punishable\r\nunder Section 302 IPC and sentenced to undergo life\r\nimprisonment and to pay a fine of Rs.50,000/-. In default\r\nof payment of fine, he shall undergo further simple\r\nimprisonment for two years. Both the sentences were to\r\nrun concurrently.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. In the facts and circumstances of the case and in\r\nthe light of the submission made on both sides, the points\r\nthat arise for our consideration are,</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\ni) Whether the Judgment under appeal suffers from\r\nany perversity or illegality warranting interference by this\r\nCourt?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ii) Whether the learned Sessions Judge is justified in\r\nconvicting the appellant / accused for offences under\r\nSection 498A and Section 302 of the IPC? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. However, as far as the alternative contention of\r\nthe learned counsel for the appellant is concerned, by\r\nconsidering the facts and circumstances of the case, the\r\nincident was caused all of a sudden on grave and sudden\r\nprovocation of the accused for the reason that the\r\ndeceased, none other than his wife, had an illicit affair and\r\non the date of the incident while he was entering the\r\nhouse, some unknown person ran out of the house and on\r\nthat issue all of a sudden he lost his self control and\r\nassaulted the deceased. Even otherwise, on a perusal of\r\nthe evidence of PW-3, the child witness also, it is stated\r\nthat the quarrel took place all of a sudden and at the spur\r\nof moment as the accused assaulted the deceased. By a\r\nperusal of the material available on record, the other\r\nmitigating circumstances in this case that the accused and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">deceased married 11 years prior to the incident and were\r\nblessed with two children PW-3 and one more child and\r\nthey were leading a happy marital life till then and there\r\nwas no complaint in respect of the harassment meted out\r\nby Accused No.1 to the deceased on earlier occasion.\r\nNevertheless by perusal of the PM report conducted by the\r\nDoctor, it depicts that there are only two injuries on the\r\nperson of the deceased. Moreover, it is the case of the\r\nprosecution that MO-4, that is the weapon said to be used\r\nfor the commission of the offence was inside the house\r\nitself. In such circumstances, the inference can be\r\ngathered that there was no such intention on the part of\r\nthe accused or there was no such preparation on the part\r\nof the accused to do away with the life of the deceased.\r\nThe entire incident passed at a spur of the moment, by\r\nadvancing two blows by the accused. In the\r\ncircumstances, it is also the contention of the learned\r\ncounsel for the appellant that the alleged incident does not\r\nfall under the category of Section 302 of IPC and at the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">most, it will fall under Exception (I) of Section 300 of IPC\r\nwhich is punishable under Section 304 part I of IPC.\r\nException I of Section 300 of IPC reads as under:</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\"300. Murder.—Except in the cases\r\nhereinafter excepted, culpable homicide is\r\nmurder, if the act by which the death is caused is\r\ndone with the intention of causing death, or</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>Secondly.—If it is done with the intention of\r\ncausing such bodily injury as the offender knows\r\nto be likely to cause the death of the person to\r\nwhom the harm is caused, or—</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>Thirdly.—If it is done with the intention of\r\ncausing bodily injury to any person and the\r\nbodily injury intended to be inflicted is sufficient\r\nin the ordinary course of nature to cause death,\r\nor—</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\r\nFourthly.-If the person committing the act\r\nknows that it is so imminently dangerous that it\r\nmust, in all probability, cause death, or such\r\nbodily injury as is likely to cause death, and\r\ncommits such act without any excuse for\r\nincurring the risk of causing death or such injury\r\nas aforesaid.\"<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. Exception 1 differs from Exception 4 of Section\r\n300 of the IPC. Exception 1 applies when due to grave and\r\nsudden provocation, the offender, deprived of the power of\r\nself-control, causes the death of the person who gave the\r\nprovocation. Exception 1 also applies when the offender,\r\non account of loss of self-control due to grave and sudden\r\nprovocation, causes the death of any other person by\r\nmistake or accident. Exception 4 applies when an offence\r\nis committed without premeditation, in a sudden fight in\r\nthe heat of passion upon a sudden quarrel and the\r\noffender commits culpable homicide without having taken\r\nundue advantage of acting in a cruel and unusual manner.\r\nThe Explanation to Exception 4 states that in such cases it\r\nis immaterial which party gives the provocation or commits\r\nthe first assault.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. Taking into consideration the mitigating\r\ncircumstances and the quarrel between the accused and\r\nthe deceased, the incident occurred would attract the\r\nprovisions of Section 300 Part I. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. The mitigating circumstances clearly indicate that\r\nthere was no intention on the part of the accused and the\r\nact committed by the accused was in the heat of passion\r\nupon sudden quarrel and therefore, the accused has not\r\ntaken undue advantage or acted in an unusual manner in\r\ncausing the death of the deceased. In the aforesaid\r\ncircumstances, the present case would not come under the\r\npurview of the provisions of Section 302 IPC but is a case\r\nfalling under Exception (1) of Section 300 IPC and the act\r\nof the accused is punishable under the provisions of\r\nSection 304 Part I of the IPC.\r\n 24. At this juncture, it is relevant to refer the dictum\r\nof Hon’ble Supreme Court in the case of AHMED SHAH\r\nAND ANOTHER –VS- STATE OF RAJASTHAN ((2015)\r\n3 SCC 93)), wherein at paragraph 21 it is held as under:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“21. As elaborated earlier, the\r\ncomplainant party went to the field and\r\nSabbir Shah was armed with gum. In the\r\nsudden fight, there was a scuffle. During\r\nthe course of scuffle, the appellants <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">inflicted injuries on the deceased Sabbir\r\nShah. The accused tried to grapple the\r\ngun from Sabbir Shah. There was no\r\npremeditation and that the incident was\r\nthe result of sudden fight. In the scuffle,\r\nthe other accused inflicted injuries on\r\nRakhu Shah and PW 8 Rakhia.\r\nConsidering the facts and circumstances\r\nof the case, in our view, the present case\r\ncannot be said to be a case punishable\r\nunder Section 302 IPC but a case falling\r\nunder Exception 4 to Section 300 IPC.\r\nSince the appellants inflicted injuries on\r\nthe neck and scalp of Sabbir Shah with\r\nthe intention of causing death, the act of\r\nthe appellant-accused is punishable\r\nunder Section 304 Part I IPC.”</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. Talking into consideration the age of Accused\r\nNo.1 and also that he has two children, that is PW-3 and\r\none more son who are aged about 17 years and 19 years\r\nrespectively as on today, and also taking into consideration\r\nthe mitigating circumstances and the oral and\r\ndocumentary evidence, we are of the considered opinion\r\nthat the impugned judgment convicting the accused for\r\noffences punishable under Section 302 has to be modified\r\nand converted into one under Section 304 Part I IPC and\r\ntaking into consideration the gravity of the offences and\r\noverall facts and circumstances of the case, we deem it\r\nappropriate to hold that the sentence which the accused / <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ppellant has already undergone for a period of 8 years 3\r\nmonths shall be termed as service of sentence, in order to\r\nmeet the ends of justice. The fine amount imposed by the\r\nTrial Court shall be intact.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>28. On a re-appreciation of the oral and documentary\r\nevidence, we are of the considered opinion that the\r\nimpugned judgment and award has to be modified as\r\nstated supra and the accused is convicted for offences\r\npunishable under Section 304 Part I IPC.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">29. For the reasons stated above, the first point\r\nraised is answered in the affirmative. The second point\r\nraised is answered in the negative holding that the\r\nappellant / accused is convicted for offences punishable\r\nunder Section 304 Part I IPC instead of Section 302 IPC\r\nimposed by the Trial Court.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The appeal preferred by the appellant under Section\r\n374(2) of the Cr.P.C. is hereby allowed in part.\r\nConsequent upon allowing this appeal, the judgment of\r\nconviction and order of sentence dated 04/06.03.2017\r\nrendered by the Court of the II Addl. District & Sessions\r\nJudge, Davangere in S.C.No.164/2015 is hereby modified\r\nto the extent that the appellant / accused No.1 is\r\nconvicted for offences punishable under Section 304 Part-I\r\nIPC instead of Section 302 IPC. The period of 8 years 3\r\nmonths for which appellant / Accused No.1 was in\r\nincarceration shall be treated of service of sentence, to\r\nmeet the ends of justice. In so far as conviction and\r\nsentence held against the appellant / accused as regards\r\nthe offence under Section 498-A IPC is concerned, the\r\nsame shall remain intact. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f2031203a66ba726569d20a31dc31039.jpeg', 'ffe13507fef94789e218c72c1a3e0a6f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-13', 1, '', '', '2023-07-12 13:33:14', '2023-07-13 12:24:09');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3191, '88NaYSVF2cRaj1n60FoinotJ8', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Planning Authority cannot seek relinquishment of Buffer Zone or the building line where construction cannot take place, free of cost, to the Planning Authority while sanctioning the development plan. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S SNN Abode LLP Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 2856 of 2016 decided 4 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice R Devdas.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The issue regarding relinquishment of the area\r\ndesignated as Buffer Zone, free of cost, which is stipulated\r\nin condition No.2 in the commencement certificate dated\r\n23.11.2015 at Annexure ‘D’ is no more res integra. The\r\nissue has been considered by a co-ordinate Bench of this\r\nCourt in the case of Dr.Arun Kumar B.C. Vs. State of\r\nKarnataka and Others in W.P.No.9408/2020 and\r\nconnected matters dated 17.01.2022.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. In those batch of writ petitions, the petitioners\r\nhad filed applications for developing the property into\r\nresidential buildings. The Bruhat Bengaluru Mahanagara\r\nPalike, had issued an endorsement to the petitioner\r\ntherein stating that the applications submitted by the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner for sanction of the building plan will be\r\nprocessed only upon the petitioner surrendering the\r\nproperty earmarked for the purposes of widening of road\r\nin the Master Plan, free of cost.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. The co-ordinate Bench held that no doubt, the\r\nprovisions contained in the Karnataka Town and Country\r\nPlanning Act, 1961, more specifically, Section 17(3) of the\r\nAct specifies that the owner is not entitled for\r\ncompensation for the relinquished property. However, a\r\nreading of Section 17 of the Act in its entirety does not\r\nexpressly provide that the land earmarked as road in the\r\nMaster Plan will have to be relinquished free of cost or that\r\nthe owner is not entitled for compensation while\r\nsanctioning a layout plan. It was held that Section 17(3)\r\nof the Act, is applicable only to the lands enumerated in\r\nSection 17 (2-A) like parks, playgrounds and roads formed\r\nwithin the layout and civic amenity sites.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. In the present context, however, the\r\nrespondent is the Bangalore - Mysore Infrastructure <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Corridor Area Planning Authority (BMICAPA). Whence the\r\npetitioner approached the Planning Authority seeking a\r\nsingle plot approval for the entire extent of 5 acres 17 ½\r\nguntas situated at Kammanahalli, Begur Hobli, Bangalore\r\nSouth Taluk, the Planning Authority issued a\r\ncommencement certificate dated 23.11.2015 at Annexure\r\n‘D’. However, a condition was imposed at Sl.No.2 that the\r\nfrontage of the property which falls within the Buffer Zone\r\nabutting the Nandi Infrastructure Corridor Enterprises road\r\n(NICE Road) shall not be used by the petitioner for putting\r\nup any construction and that the said space should be\r\nrelinquished by the petitioner by executing a\r\nrelinquishment deed in favour of the Bruhat Bengaluru\r\nMahanagara Palike, free of cost.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">6. There is not much of a difference between the\r\ntwo cases, except that the condition has been imposed in\r\nthe present case at the hands of respondent No.2-\r\nBMICAPA which is the Planning Authority, while granting\r\nthe commencement certificate in favour of the petitioner. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The other aspect of the matter which is the crux of the\r\nissue is one and the same, that is, whether the Planning\r\nAuthority or the sanctioning authority is empowered to\r\nlevy such a condition calling upon the owner of the\r\nproperty to relinquish a portion of the property free of cost\r\nin favour of the authority. This aspect of the matter has\r\nbeen considered by the co-ordinate Bench and has rightly\r\nheld that there is no provision contained in the Karnataka\r\nTown and Country Planning Act, or any such statute for\r\nthat matter, which would enable the Planning Authority or\r\nthe sanctioning authority to impose such a condition that\r\nthe sanction will be accorded only on the condition that a\r\nportion of the property where construction is not\r\npermitted, shall be relinquished free of cost to the\r\nauthority.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. As rightly held by the co-ordinate Bench,\r\nprovision is made under sub-section (2-A) of Section 17 of\r\nthe Karnataka Town and Country Planning Act, for\r\nexecution of relinquishment deed, free of cost without, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">claiming any compensation in respect of roads, parks,\r\nplaygrounds to the local authority and civic amenity area\r\nto the Planning Authority. There is no such provision\r\nwhich would enable the Planning Authority to seek\r\nrelinquishment of the Buffer Zone or the area earmarked\r\nas falling within the building line where construction\r\ncannot be put up by the owner of the property, free of\r\ncost, to the Planning Authority. In that view of the matter,\r\nthe contention of the petitioner is required to be upheld.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n8. Although a challenge was raised to the\r\nprovisions contained in the Karnataka Town and Country\r\nPlanning Act, and the Zonal Regulations, nevertheless, in\r\nview of the declaration already made by the co-ordinate\r\nbench, the prayer made by the petitioner in that regard\r\nneed not be considered.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>9. Consequently, the writ petition is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '94c1aba5956e949ae927435ecde34b1e.jpeg', '0776d524ba9f03ade9aeee21c72a265e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-13', 1, '', '', '2023-07-12 14:33:06', '2023-07-13 10:22:28'),
(3192, 'LCMQk2FGQ14eCJpRi9kQ4LUS0', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Land Reforms Act. Sub-tenants are entitled to be registered as occupants of the land, only when the sub-tenancy was created prior to 2 October 1965. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chandrashekarappa Thr LRS and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 66807 of 2009 decided on 7 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This writ petition under Articles 226 & 227 of\r\nthe Constitution of India is filed by the rival claimant\r\nchallenging the order at Annexure-M, dated 30.11.2009,\r\npassed by the respondent–Tribunal, wherein the Form\r\nNo.7 filed by the petitioner, rival claimant under the\r\nprovisions of the Karnataka Land Reforms Act, 1961\r\n(hereinafter referred to as \"the Act of 1961\") has been\r\nrejected and the occupancy rights of the land in question,\r\nhas been granted in favour of respondents No.4.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. Facts leading to filing of this writ petition as\r\nrevealed from the records, narrated briefly are, the\r\nagricultural land in Block No.1, measuring 14 acres 24\r\nguntas of Dharwad Village & Taluka (hereinafter referred\r\nto as \"the land in question\"), originally belonged to\r\nrespondent No.3. The land in question was leased to\r\nrespondent No.4 by respondent No.3. Respondent No.4 in\r\nturn allegedly subleased the land in question in favour of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the petitioner herein under a unregistered document dated\r\n28.04.1972. From the year 1972-73 onwards, the entries\r\nin the revenue records of the land in question stood in the\r\nname of the petitioner. After coming into force of the Act\r\nNo.1 of 1974, the petitioner as well as respondent No.4\r\nhad filed two separate Form No.7 under the provisions of\r\nthe Act of 1961, claiming occupancy rights of the land in\r\nquestion. The Land Tribunal, by order dated 31.12.1981\r\nhad granted the occupancy rights of the land in question in\r\nfavour of the legal representatives of the deceasedrespondent No.4 and rejected the claim of the petitioner.\r\nThe said order was questioned by the petitioner before this\r\ncourt in W.P. No.3440/1982. During the pendency of the\r\nsaid writ petition, the Land Reforms Appellate Authority\r\nwas constituted and the pending writ petition was\r\ntransferred to the Appellate Authority at Dharwad and was\r\nrenumbered as LRA No.266/1986. After the abolition of\r\nthe Land Reforms Appellate Authority in the year 1990,\r\nthe said appeal was retransferred to this Court and was\r\nrenumbered as W.P. No.28789/1991. The said writ petition </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was allowed by this Court on 30.03.1999 and the matter\r\nwas remitted to the Tribunal. The Tribunal thereafter, vide\r\nthe order impugned dated 30.11.2009 rejected the Form\r\nNo.7 filed by the petitioner and granted the occupancy\r\nrights of the land in question in favour of the legal\r\nrepresentatives of the deceased-respondent No.4.\r\nBeing aggrieved by the said order, the petitioner is\r\nbefore this Court.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">7. The question that would arise for consideration\r\nin this writ petition is, whether the Tribunal was justified in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">rejecting the Form No.7 filed by the petitioner and allowing\r\nthe Form No.7 filed by the deceased-respondent No.4.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. In the case of Chikkanna Since deceased by\r\nLRs. and Others (Supra), the Division Bench of this Court\r\nat paragraph No.10 has observed as follows:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“10. It is thus clear from the provision\r\ncontained in Section 21 that, a bar is enacted for\r\nsub-letting the land held by any tenant except by a\r\npermanent tenant. The proviso and the succeeding\r\nsub-sections save assignment by way of partition <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and by certain other categories of tenants like a\r\nsoldier, seaman or in respect of certain transactions\r\nof loan or mortgage executed in favour of State\r\nGovernment or some Companies or Co-operative\r\nsocieties. Section 21 is in the statute book and has\r\ncome into force with effect from 02.10.1965\r\nTherefore, it is clear that, the prohibition for subletting the land is in existence since 02.10.1965 If\r\nthat be so, unless it is established that the\r\npredecessor-in-title of the writ petitioners were\r\npermanent tenants of the lands in question, they\r\ncould not have sub-let the lands after 02.10.1965\r\nThe facts as pleaded do not make the proviso\r\nto sub-Section (1) of Section 21 applicable to the\r\npresent case. However, no opinion need be\r\nexpressed in this regard at this stage. It has to be\r\ntherefore, noted that if sub-tenancy is created after\r\n02.10.1965, it cannot be regarded as lawful in view\r\nof the prohibition enacted under Section 21.”</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. In the revenue records that are available in the\r\noriginal record, respondent No.4 is only referred to as a\r\nprotected tenant and not as a permanent tenant. Even this\r\nCourt in the earlier round of litigation has recognised\r\nrespondent No.4 as a protected tenant. Therefore, in view\r\nof the law laid down in the case of Chikkanna Since\r\ndeceased by LRs. and Others (Supra), unless the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner establishes that respondent No.4 was a\r\npermanent tenant of the land in question, the\r\nsub-tenancy, which is created after 02.10.1965 is hit by\r\nSection 21 of the Act. The only exception made in Section\r\n21 of the Act is for tenancy created by permanent tenant\r\nand if not the bar under Section 21 of the Act\r\nautomatically gets attracted in a case where the subtenancy is created after 02.10.1965. Under the\r\ncircumstances, the petitioner, who claims to be the subtenant with effect from 28.04.1972 cannot be granted the\r\noccupancy rights of the land in question in view of the\r\nmandatory provisions contained in Sections 45 & 49 of the\r\nAct of 1961, which states that tenants whose tenancy is\r\ncreated unlawfully would not be entitled to seek grant of\r\noccupancy rights.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. In the year 1986 after the Appellate Authority\r\nwas formed, W.P. No.3440/1982 was transferred to the\r\nLand Reforms Appellate Authority. After abolition of the\r\nAppellate Authority in the year 1990, the pending appeals\r\nbefore the Appellate Authority were retransferred to this\r\nCourt and the petitioner’s case after retransfer was\r\nrenumbered as W.P. No.28789/1991 and the said writ\r\npetition was disposed off on 30.03.1999 and while\r\nremitting the matter, this Court had directed the parties to\r\nmaintain status-quo. The material on record therefore,\r\nprima facie would go to show that the petitioner was\r\nthroughout in possession and cultivation of the land in\r\nquestion and it is not in dispute that the land in question is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">an agricultural land within the meaning of Section 2A(18)\r\nof the Act of 1961.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">19. Section 44 of the Act of 1961 provides that all\r\nlands held by or in possession of the tenants immediately\r\nprior to commencement of the Amendment Act, other than\r\nthe lands held by the tenants under lease permitted under\r\nSection 5 of the Act shall with effect on and from the date\r\non the aforesaid provision coming into force stand\r\ntransferred to and vest in the State Government. Section\r\n44 of the Act of 1961 had come into effect from\r\n01.03.1974. The material on record would go to show that\r\nthe land in question, which is a land within the meaning of\r\nSection 2A(18) of the Act of 1961 was in possession and\r\ncultivation of the petitioner as sub-tenant. Sections 45 and\r\nSection 49 provide that even the sub-tenants are entitled\r\nfor grant of occupancy rights of the land under the\r\nprovisions of the Act of 1961, provided that the subtenancy was created lawfully. The petitioner’s claim for\r\ngrant of occupancy rights is being rejected in the present\r\ncase for the reason that his sub-tenancy was created only</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in the year 1972, which is much after Section 21 of the Act\r\ncoming into force and respondent No.4 was only a\r\nprotected tenant and he was referred to as protected\r\ntenant even in the order of temporary injunction, which\r\nwas granted by this Court in the year 1982. Therefore, it\r\ncannot be said that respondent No.4 was in possession\r\nand cultivation of the land in question as on 01.03.1974 or\r\nimmediately prior to the said date.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>20. A tenant who is not in possession and\r\ncultivation of the land as on 01.03.1974 or immediately\r\nprior to the said date is not entitled for grant of occupancy\r\nrights. It is not the case of the respondent No.4 that he\r\nwas illegally dispossessed from the land in question. Only\r\ntenants who were wrongfully dispossessed or illegally\r\nprevented from cultivation are entitled for grant of\r\noccupancy rights even if they are not in possession and\r\ncultivation of the land as on 01.03.1974 or immediately\r\nprior to the said date [Ballesha Rama Khot and others\r\nVs. the Land Triubnal, Chikkodi and others (1978)1\r\nKant LJ 116 (FB)],</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. The tenancy of petitioner, who was in actual\r\npossession and cultivation of the land in question as on\r\n01.03.1974 and immediately prior to the said date was not\r\na valid tenancy. The Division Bench of this Court in the\r\ncase of Tippavva Vs. the Deputy Commissioner,\r\nBagalkot, reported in 2012(3) KCCR 2372 has held that\r\nSection 44 of the Act of 1961 comes into play only in a\r\nsituation where the tenancy is a valid tenancy and person\r\nin possession and cultivation is a tenant, as recognized\r\nunder the Act of 1961 and not any other person.\r\nTherefore, the land in question had not vested with the\r\nState under Section 44 of the Act of 1961 as on\r\n01.03.1974 and unless the land vests with the State, the\r\nTribunal has no jurisdiction to entertain the claim under\r\nForm No.7 or Form No.7A of the Act of 1961. Therefore,\r\nthe Tribunal was not justified in granting the occupancy\r\nrights of the land in question to respondent No.4. The\r\nquestion for consideration is accordingly answered partly\r\naffirmative. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. Under the circumstances, the impugned order\r\nto the extent it relates to granting occupancy rights of the\r\nland in question to respondent No.4 cannot be sustained. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The writ petition is partly allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b6864093395d0cc5c428ecead5f5b52d.jpeg', 'b0aae62a9db1e1e93c09913e88292c02.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-13', 1, '', '', '2023-07-12 15:00:48', '2023-07-13 13:51:30'),
(3193, 'cE3Ih5MInNHZwDrnKCxp9rVcr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '“Proceeding under the IPC is the flesh and the proceeding under the PMLA is the blood.” Provisional attachment under the PMLA shall be suspended when the predicate offence proceedings under the IPC are stayed by the Court. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mantri Developers Private Limited and others Vs Directorate of Enforcement and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 20713 of 2022 decided on 14 December 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The petitioners are before this Court calling in question provisional attachment order dated 11-08-2022 attaching immovable properties of the petitioners worth Rs.300,43,93,475 held by petitioners 2 and 3 in lieu of alleged value of proceeds of crime of an equivalent amount.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>Facts in brief germane for consideration of the issue in the lis are as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> A crime comes to be registered against the petitioners and several others in Crime No.163 of 2020 for offences punishable under Sections 406, 415, 417, 420 read with Section 34 of the Indian Penal Code. The registration of said crime comes to be challenged before this Court in Writ Petition No.10258 of 2020. This Court by different orders has stayed investigation in Crime No.163 of 2020. Long after the grant of the said interim order, the respondent/Enforcement Directorate registers an Enforcement Case Information Report (‘ECIR’) against petitioner No.4 arraigning him as accused No.2 on 22-03-2022. Pursuant to registration of the crime under the provisions of the Prevention of Money Laundering Act, 2002 (‘the PMLA’ for short) a show cause notice is issued to the 4th petitioner calling upon him to appear before the Investigating Officer to tender evidence. It is the claim of the petitioners that the 4th petitioner did appear before the Investigating Officer under the Act and produced all the documents that were called for. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>The interim order granted earlier in Writ Petition No.10258 of 2020 was extended on 12-07-2022. A separate petition is filed seeking quashment of proceedings in registration of ECIR by the 4th petitioner which is pending consideration. With the above proceedings pending, a provisional attachment order comes to be passed under sub-section (1) of Section 5 of the Act provisionally attaching immovable properties held by petitioners 2 and 3 to the tune of Rs.330,43,93,475/-. The provisional attachment order is what drives the petitioners to this court in the subject petition.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>The afore-narrated facts are not in dispute. A crime comes to be registered against the petitioners and several others in Crime No.163 of 2020 alleging that the petitioners entities/persons are involved in money laundering by collecting money from home buyers by delivery of flats constructed by them by inducing buyers by projecting certain apartments which were painted for the purpose of luring or deceiving the customers. Even after 10 years the flats were not delivered to the home buyers. Deposits taken by them were retained and it was suspected that the funds received from the home buyers which were meant for construction of the project have been diverted for personal use by the management of the Company or for such other fraudulent purposes. It is therefore, the offences under Sections 406, 415, 417 and 420 of the IPC are alleged against the petitioners in Crime No.163 of 2020. These are the offences under the IPC which are predicate offences.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>10... Section 3 of the PMLA deals with offence of money laundering, Section 4 makes the offences of money laundering punishable and Section 5 which comes under Chapter-III, deals with attachment of property, adjudication and confiscation with attachment of property involved in money laundering. Section 5 of PMLA is what is germane to be considered in the case at hand.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space:pre\">	</span>The other provision in sub-section (5) of Section 5 of the PMLA deals with procedure for such attachment and what would become after the attachment. The petitioners have now called in question the provisional attachment order dated 11-08-2020 provisionally attaching the immovable properties of the petitioners. A perusal at the order dated 11-08-2020 qua the power under Section 5 would indicate that it does bear application of mind by the Adjudicating Authority to attach the immovable properties of the petitioners. Therefore, the contention that Section 5 does not empower the Competent Authority to pass orders on provisional attachment is without substance. Therefore, the power of attachment is always available and such power is held to be valid in the eye of law.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 13.<span style=\"white-space:pre\">	</span>In the teeth of the preceding analysis that the order of attachment cannot be found fault with, as it is in tune with the PMLA, but should it be permitted to be taken to its logical end or otherwise is the issue in the lis. Interdiction of attachment order is sought to be on the ground that there is an interim order of stay in the predicate offence i.e., offence under the IPC. The link between the two is, what is considered by the Apex Court in the case of VIJAY MADANLAL CHOUDARY (supra).   The Apex Court in the case of VIJAY MADANLAL CHOUDARY (supra) considers the entire spectrum of PMLA and at paragraph 467 of the judgment draws up the conclusions. Paragraph 467 reads as follows:<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>467... (d)<span style=\"white-space:pre\">	</span>The offence under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence. It is concerning the process or activity connected with such property, which constitutes the offence of money-laundering. The Authorities under the 2002 Act cannot prosecute any person on notional basis or on the assumption that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money-laundering against him or any one claiming such property being the property linked to stated scheduled offence through him.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i> (vi)<span style=\"white-space:pre\">	</span>Section 5 of the 2002 Act is constitutionally valid. It provides for a balancing arrangement to secure the interests of the person as also ensures that the proceeds of crime remain available to be dealt with in the manner provided by the 2002 Act. The procedural safeguards as delineated by us hereinabove are effective measures to protect the interests of person concerned.<br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Clause (d) of the aforesaid conclusion the Apex Court considers Section 3 of the Act and later upholds the constitutional validity of Section 5 of the Act in terms of clause (vi) supra. Section 5 of the Act is what deals with the attachment of the properties. Clause (v)(d) of paragraph 467 (supra) establishes the link between the two. The Apex Court holds that in the event the accused in the PMLA or whose allegations are linked to any persons in the predicate offence such accused in the predicate offence gets a clean chit on three circumstances – one by acquittal after a full blown trial; two on discharge by the competent Court and three on the proceedings being quashed by the High Court in exercise of its jurisdiction under Section 482 of the Cr.P.C.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space:pre\">	</span>In these circumstances the offence alleged under the provisions of the PMLA cannot be sustained and cannot be permitted to be continued. Therefore, if the allegations in the predicate offences are considered to be the flesh, the offences under the PMLA is the blood. Therefore, if the predicate offence is not permitted to move forward, the impugned proceedings cannot. It would have been altogether different circumstance, if the petitioners were all acquitted of the offences under the IPC or any other predicate offence to which the offence under the PMLA is linked. The situation in the case at hand is not with regard to acquittal, however, the proceedings are stayed. Therefore, they are eclipsed and not extinguished. The Apex Court does not deal with a circumstance as to what should happen in a case, where it is eclipsed. The Apex Court only dealt with a situation where there is extinguishment of predicate offences. Therefore, it is necessary to consider taking cue from the findings of the Apex Court as to whether attachment order should be permitted to be confirmed or otherwise.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>16.... A Division Bench of the High Court of Madras holds that in the light of the link between the two and the judgment of the Apex Court in VIJAY MADANLAL CHOUDARY (supra) further proceedings under the PMLA should not be permitted to be continued, till the disposal of the case pending before the competent Court in the predicate offence, where there is an interim order of stay operating. I am in respectful agreement with the order passed by the Division Bench of Madras, but only to the extent of challenge to the impugned proceedings. There is no challenge to the proceedings under the ECIR. What is called in question is the provisional attachment order. In the light of judgments quoted hereinabove, the order passed under sub-section (1) of Section by the Enforcement Directorate cannot be termed to be illegal, however, those proceedings cannot be permitted to be taken to its logical conclusion. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space:pre\">	</span>There are only three circumstances that the Court would indicate in VIJAY MADANLAL CHOUDARY’s case that in the event the accused in the predicate offence is discharged, acquitted or the proceedings against him are quashed in exercise of jurisdiction under Section 482 of the Cr.P.C., it is only then all the proceedings under the Act would become a nullity. That situation has not yet arrived. Therefore, if the proceedings under the predicate offences are eclipsed and not extinguished, the same would become applicable to the proceedings under the ECIR. The same will have to be eclipsed and cannot be extinguished. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space:pre\">	</span>In the event the submission of the learned counsel for the petitioners is accepted, it would defeat the very power of attachment under sub-section (1) of Section 5 of the PMLA and if the Enforcement Directorate is permitted to move on with the attachment by seeking a confirmation order or proceeding to sell the attached properties, it would defeat the very proceedings pending before this Court in the predicate offences and the judgment of the Apex Court in the case of VIJAY MADANLAL CHOUDARY (supra). Therefore, to keep the right of the petitioners and the respondent/Enforcement Directorate alive, I deem it appropriate to stall further proceedings in the impugned attachment order i.e., the provisional attachment order directing it not to be confirmed or it being taken any further, however, it would not mean that there can be release of the subjects of attachment in favour of the petitioners. If status quo has to be maintained in the proceedings under the IPC for the reason that there is an interim order; status quo has to be maintained in the proceedings of ECIR as well i.e., the impugned proceedings, all of which would mean that they are mutual to each other. The proceedings under the ECIR can continue once there is a determination by this Court in Writ Petition No.10258 of 2020 either in favour of the petitioners or against them. The impugned proceedings of attachment cannot continue as it would be subject to the final result of Writ Petition No.10258 of 2020. In the event the proceedings against the petitioners stand quashed, the attachment order or any other proceeding under the ECIR cannot continue. Till such time, the proceedings cannot be held to be illegal leading to its obliteration. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space:pre\">	</span>Insofar as the judgments relied on by the learned counsel appearing for the Enforcement Directorate particularly with reference to the case in J.SEKAR v. UNION OF INDIA - 2018 SCC OnLine Del 6523, rendered by the High Court of Delhi holding that the proceedings under the PMLA and the proceedings under the IPC or predicate offences are completely different and they can go hand in hand is concerned, there can be no qualm about the principles so laid down at the relevant point in time. With the judgment of the Apex Court in the case of VIJAY MADANLAL CHOUDARY (supra), the judgment in J.SEKAR would not become applicable to the facts of the case. The other judgments relied on would also follow suit in the light of the judgment of the Apex Court rendered in the case of VIJAY MADANLAL CHOUDARY (supra).<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> (i)<span style=\"white-space:pre\">	</span>The Writ Petition is allowed in part.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0b368a8544fb1612409fddfb5f843cbf.jpeg', 'b7d90bafdf5de74365b05ae08edaa48f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-13', 1, '', '', '2023-07-12 15:53:51', '2023-07-13 06:22:06');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3194, 'wy3wl6nZw7LFOxlg7RBhBtPaA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. When trial Court misreads the evidence and arrives at a conclusion erroneously to convict the accused, the appellate Court must intervene to prevent miscarriage of justice. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Venkatachala and others Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 183 of 2017 decided on 28 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Somashekar and Justice Rajesh Rai K.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">This appeal is directed against the judgment and order\r\nof conviction rendered by the Court of II Additional District\r\nand Sessions Judge, Ramanagaram sitting at Kanakapura in\r\nS.C.No.97/2011 dated 19.01.2017, whereby convicting the\r\naccused for the offence punishable under Sections 143, 147, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">302 read with Section 149 of I.P.C. and accused Nos.1 to 6\r\nsentenced to undergo simple imprisonment for a period of\r\ntwo months for the offence punishable under Section 144\r\nread with Section 149 of I.P.C. Further, the aforesaid\r\naccused directed to undergo simple imprisonment for a\r\nperiod of one year for the offence punishable under Section\r\n147 read with Section 149 of I.P.C. They shall undergo\r\nrigorous imprisonment for life and to pay a fine of\r\nRs.25,000/- each for the offences punishable under Section\r\n302 read with Section 149 of I.P.C. and in default for\r\npayment of fine amount they have to further undergo\r\nrigorous imprisonment for a period of one year. All the\r\nsentences awarded against the accused shall run\r\nconcurrently.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. Sections 3 and 4 of the Act of 1872 relating to\r\nconclusive proof. That it is the domain vested with the\r\nprosecution to prove the guilt against the accused to\r\nfacilitating the worthwhile evidence and equally the domain\r\nvested with the trial Court as to appreciate the evidence and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">also no scrutiny of the evidence inclusive of examination-inchief and so also cross-examination stood by the witnesses.\r\nBut in the instant case, the trial Court has not appreciated\r\nthe evidence in a proper perspective to arrive at a conclusion\r\nthat the prosecution has proved the guilt against the\r\naccused for the heinous offence under Section 302 of I.P.C.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. It is in this back ground of the contention made\r\nby the learned counsel for the appellants and inclusive of\r\nthe learned HCGP for the State which is based upon the\r\nevidence let in by the prosecution and the evidence of PW.1 -\r\nMahadeva, who is the author of the complaint - Ex.P1 and\r\nso also being the father of the deceased - Rajendra and PW.2\r\n- Nagamma, who is none other than the mother of deceased\r\n- Rajendra, these two witnesses have been subjected to\r\nexamination and moreso, they are the vital witnesses on the\r\npart of the prosecution relating to the theory, which has\r\nindicated on the part of the prosecution. The FIR has been\r\nrecorded based upon Ex.P1 made by P.W.1 - Mahadeva.\r\nTherefore, in the instant case, it requires to refer Section\r\n154 of the Cr.P.C, but it is not a substantive case of the\r\nevidence. It is only used to contrary or corroborate the\r\nmatter thereof. Accordingly, the Hon\'ble Supreme Court\r\naddressed the issue in a judgment of\r\nSRI SAMBHU DAS @ BIJOY DAS & ANR VS. STATE OF ASSAM\r\nreported in AIR 2010 SCC 3300 a mere information received\r\nby the police against without any details as regards the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">accused person for involvement of commission of offence\r\neven the nature of injuries caused by the deceased as well as\r\nthe name of the culprits may not be treated as FIR. This\r\nissue was also in a greater extent addressed by the Hon\'ble\r\nSupreme Court of India. Therefore, this settled position of\r\nlaw relating to receipt of information and recording the FIR\r\nand thereafter to proceed with the case for investigation.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">19. In the instant case which is relating to the death\r\nof the deceased - Rajendra by committing the murder of him\r\nand the appellants being arrayed as accused and so also the\r\nmotive factors relating to some enmity developed between\r\nthe accused and the deceased in connection with the\r\ndeceased did not provide alcohol to the accused person.\r\nThese are all the material evidence found in the record even\r\nthough the charge sheet has been led by the investigating\r\nofficer. But it is the duty cast upon the prosecution to prove\r\nthe guilt against the accused beyond all reasonable doubt to\r\nconvict them.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. The appellate Court should not normally reappreciate the evidence and it was extensively addressed by\r\nthe Hon\'ble Supreme Court in the case of STATE OF WEST\r\nBENGAL VS. KAILASH CHANDRA PANDEY reported in AIR 2012\r\nSC 119. Whereas the judgment rendered by the Hon\'ble\r\nSupreme Court in the case of PADAM SINGH VS STATE OF U.P\r\nreported in AIR 2000 SC 361, the Hon\'ble Supreme Court\r\nhas addressed the role of the appellate Court, wherein it is\r\nthe duty of the appellate Court to look into the evidence\r\nadduced in the case and arrive at an independent\r\nconclusion as to whether the evidence can be relied upon or\r\nnot? and even it can be relied upon, whether prosecution\r\nsaid to have been proved beyond all reasonable doubt on the\r\nsaid evidence. The credibility of the witness has to analyse\r\nby the appellate Court in drawing inference from proved and\r\nadmitted facts. Therefore, the duty cast upon even the trial\r\nCourt under Section 3 of the Act of 1872 relating to\r\nappreciation of the evidence and also close scrutiny of the\r\nevidence, inclusive of examination-in-chief and so also the\r\ncross-examination it is on the part of the defence side. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Therefore, the law which is clearly expects that the appellant\r\nCourt would dispose of the appeal on merits not merely by\r\nperusing the reasoning of the trial Court in the judgment\r\nrendered. But by cross checking the reasoning within the\r\nevidence on record with a view to satisfying itself the\r\nreasoning and the findings recorded by the trial Court are\r\nconsisted with the materials on record. This issue has\r\nextensively addressed by the Hon\'ble Supreme Court of India\r\nin a judgment of MAHENDRA SINGH AND ORS. VS STATE OF\r\nRAJASTHAN reported in AIR 1997 (3) Crimes 102 Rajastan.\r\nHowever, it is relevant to the judgment of LALIT KUMAR\r\nSHARMA AND ORS. VS SUPERINTENDENT AND REMEMBRANCER OF\r\nA LEGAL APPEAL, GOVERNMENT OF WEST BENGAL reported in\r\nAIR 1989 SC 2134. In this judgment, the Hon\'ble Supreme\r\nCourt had extensively addressed this Court and also the\r\npower of the appellate Court to review evidence in appeals\r\nagainst acquittal is as extensive as its powers in appeals\r\nagainst convictions, but the appellate Court should be slow\r\nin interfering with the orders of acquittal. But the conviction\r\ncases are concerned, it is a domain vested within the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appellate Court to heal the entire matter dwelling in detail\r\nabout the evidence i.e., the examination-in-chief and also\r\ncross-examination as well as other material which facilitated\r\nby the prosecution. But in the instant case, it is relevant to\r\nrefer the judgment rendered by the Hon\'ble Supreme Court\r\nin the case of SHARAD BIRDHICHAND SARDA V. STATE OF\r\nMAHARASHTRA reported in (1984) 4 SCC 116. In this\r\njudgment, the Hon\'ble Supreme Court had addressed the\r\nissue relating to circumstantial evidence and so also scope\r\nof the provision of the Act of 1872 and so also the benefit\r\nand interference by Hon\'ble Supreme Court even under\r\nArticle 136 of the Constitution of India, 1950. But in this\r\njudgment, at para No.153, it reveals a close analysis of this\r\ndecision would show that the following conditions must be\r\nfulfilled before a case against an accused can be said to be\r\nfully established. Firstly, the circumstances from which the\r\nconclusion of guilt is to be drawn should be fully\r\nestablished. It may be noted here that this Court indicated\r\nthat the circumstances concerned \'must or should\' and not\r\n\'may be\' established. There is not only a grammatical but a </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">legal distinction between \'may be proved\' and \'must be or\r\nshould be proved\' as was held by this Court in SHIVAJI\r\nSAHABRAO BOBADE & ANR. V. STATE OF MAHARASHTRA,\r\nwherein it was reported in SCC (CRIME) 1047 held that\r\ncertainly, it is a primary principle that the accused must be\r\nand not merely may be guilty before a court can convict and\r\nthe mental distance between, may be\' and \'must be\' is long\r\nand divides vague conjectures from sure conclusions. (2) The\r\nfacts so established should be consistent only with the\r\nhypothesis of the guilt of the accused, that is to say they\r\nshould not be explainable on any other hypothesis except\r\nthat the accused is guilty (3) the circumstances should be of\r\na conclusive nature and tendency (4) they should exclude\r\nevery possible hypothesis except the one to be proved, and\r\n(5) there must be a chain of evidence so complete as not to\r\nleave any reasonable ground for the conclusion consistent\r\nwith the innocence of the accused and must show that in all\r\nhuman probability the act must have been done by the\r\naccused. These five golden principles, if we may say so, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">constitute the panchsheel of the proof of a case based on\r\ncircumstantial evidence.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. Whereas in paragraph 163 of the aforesaid\r\njudgment, when we pass on to another important point\r\nwhich seems to have been completely missed by the High\r\nCourt, it is well settled that whether the evidence two\r\npossibilities are available or open, one which goes in favour\r\nof the prosecution and the other which benefits the accused\r\nand the accused is undoubtedly entitled to the benefit of\r\ndoubt. IN KALI RAM V. STATE OF HIMACHAL PRADESH reported <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in SCC (CRIME) 1060 this Court made the following\r\nobservations:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>\"Another golden thread which runs through the web\r\nof the administration of justice in criminal cases is\r\nthat if two views are possible on the evidence\r\nadduced in the case one pointing to the guilt of the\r\naccused and the other to his innocence, the view\r\nwhich is favourable to the accused should be\r\nadopted This principle has a special relevance in\r\ncases where in the guilt of the accused is sought to\r\nbe established by circumstantial evidence.\"\r\n</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n23. Subsequent to filing of this judgment rendered by\r\nthe Hon\'ble Supreme Court of India whereby rendering a\r\njudgment in the case of RAM NIWAS VS. THE STATE OF\r\nHARYANA reported in AIR 2022 SC 3748. In this judgment,\r\npara No.18, the prosecution case rests on circumstantial\r\nevidence. The law with regard to conviction on the basis of\r\ncircumstantial evidence has very well been crystallized in the\r\njudgment of this Court in the case of SHARAD BIRDHICHAND\r\nSARDA VS. STATE OF MAHARASHTRAREPORTED in AIR (1984 )4\r\nSCC 113 equallent to AIR 1984 SC 1622. In this judgment,</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in para No.153 has been made an observation that the facts\r\nso established should be consistent only with the hypothesis\r\nof the guilt of the accused i.e., to say that is to say they\r\nshould not be explainable on any other hypothesis except\r\nthat the accused is guilty (3) the circumstances should be of\r\na conclusive nature and tendency (4) they should exclude\r\nevery possible hypothesis except the one to be proved, and\r\n(5) there must be a chain of evidence so complete as not to\r\nleave any reasonable ground for the conclusion consistent\r\nwith the innocence of the accused and must show that in all\r\nhuman probability the act must have been done by the\r\naccused.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>24. In the judgment of (1984) 4 SCC 1164 the five\r\ngolden principles, if we may say so, constitute the\r\npanchsheel of the proof of a case based on circumstantial\r\nevidence.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">25. Apart from the reliances which has been placed\r\nby the learned counsel and facilitate one more reliance of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ASHOK @ MADIWALLAPPA AND OTHERS VS. STATE OF KARNATAKA\r\nTHROUGH SUB-URBAN P.S., reported in 2021(5) KCCR 1052,\r\nwhereas in this judgment the Division Bench of this Court\r\nhad addressed the issues relating to the scope of Section\r\n302 and 106 of the Act of 1872. Whereas the Conviction\r\nappeal -Last seen theory-Burden to rebut lies on the\r\naccused-Circumstance of last seen alone cannot discharge\r\nthe burden of establishing the guilt of the accused-Presence\r\nof accused in the vicinity where the deceased was found\r\nlying injured-All the places are public places having access\r\nto public-Pancha witness to seizing of MO\'s turned hostileprosecution failed to establish weapons used for assaultChain of events not proved. Therefore these reliances are\r\nsquarely applicable to the present case on hand and the\r\nsame may be consider.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">26. In the present case, wherein the theory has been\r\nset up by the prosecution that last seen theory and also the\r\nmotive factor which the accused having an intention to\r\neliminating the deceased - Rajendra. But we find that the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">prosecution has utterly failed to establish the chain of\r\nevents which can be exclusively lead to the one and only\r\nconclusion is the guilt of the accused. In that view of the\r\nmatter we find that the judgment and order of the Trial\r\nJudge are not sustainable. In the instant case even on close\r\nscrutiny of the evidence and even the totality of the\r\ncircumstances of the case it is found that the trial Court had\r\nmisread the evidence and also arrival of a conclusion\r\nerroneously opened that the prosecution has proved the\r\nguilt against the accused with beyond all reasonable doubt.\r\nTherefore, in this appeal, it requires intervention or needs, if\r\nnot intervened certainly there shall be miscarriage of justice\r\nand the accused persons would be the sufferers. However it\r\nis made it clear that the trial Court has not appreciating the\r\nevidence in a proper perspective and the evidence of the\r\nprosecution are found to be suffer from infirmity.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>1) The appeal preferred by the appellants/accused under\r\nSection 374(2) of Cr.P.C. is hereby allowed.\r\nConsequently, the judgment of conviction and the\r\norder of sentence rendered by the trial Court in\r\nS.C.No.97/2011 dated 19.01.2017 is hereby set aside.\r\nHowever, consequent upon setting aside the impugned\r\njudgment of conviction, whereby the accused being the\r\nappellants herein acquitted for the offences punishable\r\nunder Section 143, 147, 302 read with Section 149 of\r\nIPC, for which they have charged. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4aabdd54d133e1a4509be0b123e7cf72.jpeg', '62c2b2aefce07bc005762ce862fc2ef7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-14', 1, '', '', '2023-07-13 12:59:53', '2023-07-14 12:20:55'),
(3195, 'QKFjIvT1x5DfTFO1kDFcut5Ed', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Obtaining approval or sanction from the Government is not mandatory while issuing Preliminary Notification under Section 4(1) of the Land Acquisition Act for acquisition of lands in favour of the Karnataka Housing Board. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Naveen Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.A. 100296 of 2023 decided on 4 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.G. Pandit and Justice Vijaykumar A. Patil</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Both the Writ Appeals are filed under Section 4 of the\r\nKarnataka High Court Act, 1961 (for shot 1961 Act)\r\nquestioning the correctness and legality of the learned Single\r\nJudge’s order dated 20.04.2023 in W.P.No.108305/2014 and\r\nlearned Single Judge’s order dated 20.04.2023 in\r\nW.P.No.108307/2014 by which petitioners’ challenge to\r\nNotification under Section 4(1) and (6) of Land Acquisition\r\nAct, 1894 (for short 1894 Act) is rejected. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Having heard the Learned counsel for the parties\r\nand on perusal of the entire writ appeal papers, the only\r\npoint which falls for consideration is as to,</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Whether the impugned order passed by the\r\nlearned Single Judge requires interference?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The answer to the above point would be in the\r\nNegative for the following reasons<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">12. Preliminary Notification under Section 4(1) of\r\n1894 Act for acquisition was issued on 21.06.2010 and was\r\npublished in the Karnataka Gazette on 15.07.2010 and it\r\nwas published at the Sattur Village by Revenue Inspector on </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16.12.2010. The final declaration under Section 6(1) of 1892\r\nAct was published on 15.12.2011 which is within the time\r\nprescribed for publication of final declaration. The award in\r\nrespect of the lands was passed on 12.04.2014. Whereas the\r\npresent writ petition is filed subsequent to passing of the\r\naward in September 2014. It is the bounden duty of the Writ\r\nCourt to examine while considering writ petition under\r\nArticle 226 of the Constitution of India, as to whether the\r\nrelief sought suffers from delay and laches. In the case on\r\nhand, nearly four years after Preliminary Notification under\r\nSection 4(1) of 1892 Act, the petitioners filed the present\r\nwrit petition, which means there is nearly 4 years delay from\r\nthe date of Preliminary Notification and nearly 3 years delay\r\nfrom the date of Final Notification. The lands are being\r\nacquired for public purpose i.e., Housing Scheme. Where\r\nlandlord feels aggrieved by acquisition notification, he should\r\napproach the Court immediately and even a shortest delay\r\nwould disentitle the land owner for any relief, because, it </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">would affect public interest. The petitioner after passing of\r\nthe award is before this Court. The Hon’ble Apex Court in\r\ncatena of decisions has made it clear that delay in\r\nchallenging the acquisition proceedings would be fatal. The\r\nlearned Single Judge placing reliance on the decisions of the\r\nHon’ble Apex Court has rightly come to the conclusion that\r\nthe writ petition is liable to be rejected solely on the ground\r\nof delay and laches, which finding needs no interference.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. It would be useful to refer decision of the\r\nHon\'ble Apex Court in the case of URBAN IMPROVEMENT\r\nTRUST, UDAIPUR V/S. BHERU LAL AND OTHERS\r\n[(2002) 7 SCC 712] in support of the above conclusion\r\nwith regard to delay and laches. It was a case where\r\npreliminary and final declaration under Section 4 (1) and\r\n(6) of 1894 Act was issued for the purpose of residential\r\nscheme. Challenging the said acquisition notifications, land\r\nlosers approached the Writ Court after two years. In the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">said circumstances, the Hon\'ble Apex Court in the above\r\ncited decision at paragraph 21 has observed as follows:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> \"21. Further, learned counsel for the\r\nappellant rightly submitted that on the ground\r\nof delay and laches in filing the writ petitions,\r\nthe Court ought to have dismissed the same.\r\nIn the present case, as stated above, the\r\nNotification under Section 6 was published in\r\nthe Official Gazette on 24.5.1994. The writ\r\npetitions are virtually filed after two years. In a\r\ncase where land is needed for a public\r\npurpose, that too for a scheme framed under\r\nthe Urban Development Act, the Court ought\r\nto have taken care in not entertaining the\r\nsame on the ground of delay as it is likely to\r\ncause serious prejudice to the persons for\r\nwhose benefit the Housing Scheme is framed\r\nunder the Urban Development Act and also in\r\nhaving planned development of the area. The\r\nlaw on this point is well settled. [Reliance\r\nPetroleum Ltd. v. Zaver Chand Popatlal\r\nSumaria and others [(1996) 4 SCC 579]\r\nand Hari Singh and others v. State of U.P. and\r\nothers [(1984) 3 SCR 417]].\"</span><span style=\"font-size: 12pt;\"> </span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The above decision of the Hon\'ble Apex Court makes it clear\r\nthat where a land is needed for public purpose that too for\r\na scheme under Urban Development Act, the Court ought to\r\nhave taken care in not entertaining the same on the ground\r\nof delay, as it is likely to cause serious prejudice to the\r\npersons for whose benefit the housing scheme is framed<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">15. The Hon’ble Apex Court has made it clear that\r\nthe approval of scheme under Section 19 would suffice the\r\nrequirement. Since the Sattur scheme is approved under\r\nAnnexure-R2 – Government Order, the contention of the\r\nlearned counsel for the appellant that there is no approval\r\nbefore publication of Preliminary Notification fails. Further,\r\nit is to be noticed that the Hon’ble Apex Court in the case of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">STATE OF T.N. AND OTHERS V/S. L.KRISHNAN AND\r\nOTHERS [(1996) 1 SCC 250] has held that acquisition\r\nproceedings could be commenced only after Scheme is\r\nframed. Further, it is also observed that obtaining approval\r\nor sanction from the Government may not be mandatory for\r\nthe Housing Board while issuing Preliminary Notification\r\nunder Section 4(1) of 1894 Act. It is also to be noticed that\r\nSection 33 of 1962 Act empowers the Board to take steps\r\nfor compulsory acquisition of any land or any interest\r\ntherein through the State Government, required for the\r\nexecution of a Housing Scheme.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 16. Though the learned Single Judge has held that\r\nthe prosecution of Writ Petition by power of attorney\r\nholder/developer would not be maintainable since developer\r\nwould be third party, who cannot claim compensation, it\r\nneed not be gone into in the present Writ Appeal since the\r\nappellant has not made out any ground to interfere with the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">acquisition proceedings and the challenge to acquisition\r\nproceedings is dismissed on the ground of delay and laches.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n 17. It is to be noted that no other ground is urged\r\nseriously. But, on going through the learned Single Judge’s\r\norder, the petitioner had taken a contention that the Final\r\nNotification is not published within the time prescribed.\r\nLearned Single Judge has considered the same at paragraph\r\n10 of the order taking note of the fact that publication at\r\nSattur Village by the Revenue Inspector is on 16.12.2010\r\nand final notification is on 15.12.2011 and rightly held that\r\nthe final declaration is within the time prescribed.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> For the foregoing reasons, Writ Appeals stand\r\nrejected.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '77360cd69c6a4b550634be79c6a365fd.jpeg', '939c85bb861d73760710717a4e16ef22.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-14', 1, '', '', '2023-07-13 14:11:50', '2023-07-14 08:12:50'),
(3196, 'D7Kh5F5ITMkXO3QdgnXyzzAKZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Review Petition by non-party to the proceedings. Court can review compromise decree recorded in Regular Second Appeal if there was suppression of facts affecting the rights of third party. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R Sreenivas Thr LRS and others Vs Honnanna and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Review Petition 336 of 2022 decided on 30 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.S. Mudagal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Respondent No.1 was the plaintiff, respondent\r\nNos.2 to 6 were defendant Nos.1 to 5 in O.S.No.170/2009 on\r\nthe file of the Senior Civil Judge & JMFC, Nelamangala. Review\r\npetitioners and respondent Nos.7 to 12 were not parties to\r\nO.S.No.170/2009, R.A.No.476/2012, RSA Nos.715/2016 and\r\n781/2016.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The plaintiff, defendant Nos.1 to 3 and the\r\nhusband of defendant No.4 were the children of one\r\nP.Lakshminarayana Rao. Defendant No.5 was the purchaser of\r\nsuit item No.3 property and was subsequently impleaded in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the case. Initially the plaintiff filed the suit against defendant\r\nNos.1 to 4 for partition. The subject matter of the suit were in\r\nall four properties. Initially the suit was filed in\r\nO.S.No.58/2004 before the Senior Civil Judge, Bangalore\r\nRural District, Bangalore. After establishment of the Court of\r\nthe Senior Civil Judge, Nelamangala, the suit was transferred\r\nto the said Court and renumbered as O.S.No.170/2009.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 4. The plaintiff contended that the suit schedule\r\nproperties were ancestral joint family properties and as\r\nmember of joint family, he has 1/5th share in those\r\nproperties. Defendant Nos.2 and 3 supporting plaintiff claimed\r\nequal share in the plaint schedule properties. Defendant No.4\r\ndid not contest the matter. Defendant No.1 contested the suit\r\ndenying the properties being ancestral joint family properties.\r\nSo far as item No.4 of the suit schedule properties of which\r\nthe review petitioners are concerned with, he contended that\r\nthe same was leased out to one Ramappa and he had\r\ntenancy rights. He contended that on Ramappa’s death the\r\nreview petitioner Sri R.Sreenivas was in exclusive possession\r\nof the said property. The trial Court by judgment and decree\r\ndated 01.10.2012 decreed the suit granting 1/5th share to the\r\nplaintiff in all the properties. </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. On considering the submissions of both side and\r\non examining the records, the question that arises for\r\ndetermination of this Court is:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> “Whether the order of this Court dated\r\n23.04.2019 recording compromise petition and\r\nconsequent compromise decree in\r\nR.S.A.No.715/2016 and R.S.A.No.781/2016 require\r\nto be reviewed?<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">15. In this petition, the petitioners are seeking review\r\nof the compromise decree. First objection of respondent No.2\r\nis that against such decree review petition does not lie.\r\nSecondly, since the review petitioner was not party to the\r\nappeal or the compromise petition or compromise decree, he\r\ncannot maintain the review petition. In view of such </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contention, it is necessary to examine Section 114 of CPC and\r\nOrder XLVII Rule 1 of CPC which deals with review.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n16. Section 114 of CPC reads as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i> “114. Review.? Subject as aforesaid, any person\r\nconsidering himself aggrieved,?</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>\r\n(a) by a decree or order from which an appeal is\r\nallowed by this Code, but from which no\r\nappeal has been preferred,</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(b) by a decree or order from which no appeal is\r\nallowed by this Code,</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>(c) by a decision on a reference from a Court of\r\nSmall Causes,\r\nmay apply for a review of judgment to the Court which\r\npassed the decree or made the order, and the Court may\r\nmake such order thereon as it thinks fit.</i></span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. The above provision clearly shows that the review\r\nis not restricted only to the parties to the order/judgment or\r\ndecree sought to be reviewed barring other parties. The above\r\nprovision shows that any aggrieved person can seek review,\r\nprovided he satisfies the conditions of review enumerated\r\nunder Order XLVII Rule I CPC. Therefore there is no merit in\r\nthe contention that non-parties to the compromise decree\r\ncannot maintain review petition.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">18. So far as the contention that the petitioners\r\nshould maintain separate suit seeking nullity of the judgment </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and decree or file an appeal against the same, provisions of\r\nOrder XXIII Rule 3A of CPC and Section 96 of CPC are\r\nrelevant.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>\r\n19. Order XXIII Rule 3A of CPC reads as follows:\r\nOrder XXIII</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“Withdrawal and Adjustment of suits\r\n(1) ……………..….\r\n(2) ……………….….\r\n(3) ………………….\r\n3A. Bar to suit.? No suit shall lie to set aside a decree on\r\nthe ground that the compromise on which the decree is\r\nbased was not lawful.</span><span style=\"font-size: 12pt;\"> </span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Reading of the above provision shows that no suit lies\r\nagainst the compromise decree whether that is by the party\r\nto the decree or non party to the decree. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. Sub-Section 3 of Section 96 of CPC reads as\r\nfollows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>“96. Appeal from original decree-\r\n(1) ............................\r\n(2) ………………………..\r\n(3) No appeal shall lie from a decree passed by the\r\nCourt with the consent of parties.”</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">21. Reading of the above provision shows that against\r\nconsent decree/compromise decree no appeal lies either by a\r\nparty or by non party. Neither Section 96 of CPC nor Order </span><span style=\"font-size: 12pt;\">XXIII Rule 3A of CPC say that they are applicable only to the\r\nparties to the compromise decree.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b> 22. Referring to Order XXIII Rule 3A of CPC and\r\nSection 96(3) of CPC and Order XLIII Rules 1A and 2 of CPC,\r\nthe Hon’ble Supreme Court in paras 15 and 23 of the\r\njudgment in Triloki Nath Singh’s case referred to supra held\r\nthat against the compromise decree, the appeal does not lie\r\nand the Court which recorded the compromise itself has to\r\nconsider and decide the question as to whether there was\r\nvalid compromise or not.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>\r\n\r\n23. Similarly in para 18 of the judgment in\r\nNareshkumar Badrikumar Jagad’s case referred to supra it\r\nwas held that any person aggrieved by decree even if he is\r\nnot party to the said case has locus to file the review petition.\r\nIn para 23 of the judgment in Triloki Nath Singh’s case\r\nreferred to supra, Hon’ble Supreme Court held that a nonparty to compromise decree cannot file appeal or suit seeking\r\nnullification of the same as fraudulent and only the Court\r\npassing the decree has to examine the same. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. In para 8 of the judgment in Sree Surya\r\nDevelopers & Promoters’s case referred to supra the Hon’ble\r\nSupreme Court held that no suit lies to set aside the decree\r\non the ground that the compromise was not lawful. Therefore\r\nthe contention that the remedy of the petitioner was either to\r\nfile an appeal or the suit for nullification of the compromise\r\ndecree, deserves no merit. The review petition is\r\nmaintainable.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">31. Much was argued by the respondents questioning\r\nthe genuineness of the order of the land Tribunal and the\r\nproceedings of the land Tribunal, whereas the review\r\npetitioners’ Counsel also argued to sustain those orders or\r\nproceedings. However, the merits of those documents or\r\norders cannot be considered at this stage. The party can urge\r\nthe same when the Court takes up that issue after the order is\r\nreviewed. The Hon’ble Supreme Court in Sree Surya\r\nDevelopers & Promoters’s case referred to supra in para 12\r\nhas held that at the stage of setting aside the order, entering </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">into merits of validity of the compromise decree is not\r\npermissible.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The review petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5fd68dd5b1ba2a9b2265df89b1f9b657.JPG', '616e83e9097ec0fa004ba8fc6ac240fe.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-14', 1, '', '', '2023-07-13 14:47:30', '2023-07-14 06:23:00');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3197, 'taJslYfK6mFtkO2T1Fpl3DCEA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'High Court under Article 226 cannot interfere with the order of the fact-finding authority like the Land Tribunal especially when the order is based on appreciation of the oral and documentary evidence on record. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Yallappagouda Kenchangouda Patil and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 65966 of 2011 decided on 9 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The landlords have preferred this writ petition\r\nunder Articles 226 & 227 of the Constitution of India\r\nassailing the order dated 18.08.2011, passed by the 2nd\r\nrespondent – Tribunal, vide Annexure-N, wherein\r\noccupancy rights of the lands bearing Sy.No.35/1\r\nmeasuring 2 acres 19 guntas & Sy.No.35/2 measuring\r\n1 acre 13 guntas situated at Doddamangadi village,\r\nRamdurga Taluka, Belagavi District has been granted in\r\nfavour of the 3rd respondent.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The 3rd respondent herein had filed Form No.7\r\nclaiming occupancy rights of the lands in question under\r\nthe provisions of the Karnataka Land Reforms Act, 1961\r\n(for short “the Act of 1961”). The Tribunal, by order\r\ndated 28.11.1975 had rejected the Form No.7 and the\r\nsaid order was quashed by this Court in W.P.\r\nNo.7113/1975 and the matter was remitted to the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Tribunal for fresh consideration of Form No.7. Thereafter,\r\nthe Tribunal by order dated 26.02.1981, vide Annexure-J\r\ngranted occupancy rights of the lands bearing\r\nSy.No.35/1, measuring 2 acres 19 guntas & Sy.No.35/2\r\nmeasuring 27 guntas in favour of the claimants. The said\r\norder was questioned by the petitioners herein in W.P.\r\nNo.7016/1981 and this Court allowed the said writ\r\npetition and remanded the matter to the Tribunal for\r\nfresh consideration of Form No.7. Thereafter, vide the\r\nimpugned order dated 18.08.2011, the Tribunal has\r\ngranted occupancy rights of the lands in question in\r\nfavour of the 3rd respondent and being aggrieved by the\r\nsame, the petitioners are before this Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. The claimant has produced the copies of the\r\nAgava Lavani deeds, which were executed in his favour\r\nunder which the lands in question were leased by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">receiving advance rent. Though lands in question were\r\nleased under the said deed for a specific period, there is\r\nnothing on record to show that the possession of the\r\nlands in question were taken by the petitioners or\r\ntenants have surrendered the same. Even though the\r\npetitioners have produced an agreement at Annexure-C,\r\ndated 07.09.1969 contending that the tenants have\r\nsurrendered the possession of the lands in question, no\r\nreliance can be placed on the said unregistered document\r\nwhen the execution of the same itself is disputed by the\r\ntenants. The material on record would also go to show\r\nthat in the year 1969, the proceedings initiated by the\r\nlandlord against the tenants for resumption of the lands\r\nin question was dismissed by the Tribunal. Therefore, it\r\nbecomes highly doubtful that the tenants would have\r\nexecuted the document vide Annexure-C. The revenue\r\nrecords of the lands in question has continued in the\r\nname of the tenants for the period 1956-57 onwards\r\ncontinuously upto 1974-75. The landlord has not\r\nchallenged the same at any point of time and there is a </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">presumption available under Section 133 of the\r\nKarnataka Land Revenue Act regarding possession, which\r\nwould be against the landlord.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. Section 6 of the Karnataka Land Reforms Act,\r\n1961 provides that Tenancy not to be terminated by\r\nefflux of time. The said section reads as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“6. Tenancy not to be terminated by efflux of\r\ntime.- No tenancy of any land shall be terminated\r\nmerely on the ground that the period fixed for its\r\nduration whether by agreement or otherwise has\r\nexpired. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>NOTES</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i> Registered lease deed for five years-Payment\r\nof entire rent in advance recital to deliver\r\npossession after that period-the deed in question is\r\na lease deed but not a mortgage-Recital regarding\r\ndelivery cannot be given effect to in view of Section\r\n6. Gurusiddaiah Vs. LT, 1979 (2) Kar. LJ and ILR\r\n1996 (2) Kar. 1278.” </i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the case of Gurusidaiah Vs. Land Tribunal reported\r\nin 1979(2) Kar.L.J. 176, this Court has held that if the\r\nlands in question are leased for a specific period, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">recital regarding the delivery cannot be given effect to in\r\nview of Section 6 of the Act, 1961 </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The entries in the revenue records of the\r\nlands in question have continued in the name of tenants\r\nfrom the year 1956-57 onwards continuously upto 1974-\r\n75 and there is nothing on record to show that the\r\npossession and cultivation of the lands in question were\r\ntaken over by the landlords and on the other hand the\r\nresumption petition filed by the landlord was rejected in\r\nthe year 1969. Therefore, in view of Section 44 of the Act\r\nof 1961, all the lands which were held or of which\r\npossession was with the tenants immediately prior to the\r\ndate of commencement of the Amendment Act i.e., on\r\n01.03.1974, stand vested with the State Government,\r\nunless the same are specifically exempted and therefore,\r\nthere is no requirement of any specific order of vesting to\r\nbe passed by any authority.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. The claimant had filed Form No.7 claiming\r\noccupancy rights of the lands in question. However, from <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">a perusal of Form No.7, it is seen that he had made a\r\nspecific statement that as on the date of filing Form\r\nNo.7, he was in possession and cultivation of the land\r\nbearing Sy.No.35/2 only to the extent measuring 27\r\nguntas and in the second round of litigation, the Tribunal\r\nhad granted occupancy rights of the lands bearing\r\nSy.No.35/2 only to the extent of 27 guntas in favour of\r\nthe claimant. The claimant had not challenged the said\r\norder and thereby he had accepted the order passed by\r\nthe Tribunal. The order dated 26.02.1981, passed by the\r\nTribunal under which occupancy rights of the lands\r\nbearing Sy.No.35/2 measuring 27 guntas was granted in\r\nfavour of the claimant was challenged by the petitioners /\r\nlandlord and not the claimant. It is trite that the Tribunal\r\ngets jurisdiction to grant the occupancy rights of the\r\ntenanted agricultural lands only to the extent for which a\r\nclaim is made in Form No.7 and not beyond that.\r\nTherefore, the order passed by the Tribunal granting\r\noccupancy rights of the lands bearing Sy.No.35/2 to the\r\nextent, it relates to granting of occupancy rights more </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">than 27 guntas is one without jurisdiction and the same\r\nis not sustainable.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1</span><span style=\"font-size: 1rem; font-family: var(--bs-font-sans-serif);\">1. The order sheet maintained by the Tribunal\r\nwould go to show that Shri Ashok M. Pattan, who was\r\none of the members of the Tribunal had not at all\r\nparticipated in the enquiry proceedings throughout.\r\nThough his name is reflected in the impugned order, the\r\nrecords would reveal that he never participated in the\r\nenquiry proceedings held by the Tribunal and therefore,\r\nit cannot be said that he had heard in the matter. In the\r\ncase of Vijaya Bank, by its Chief Manager (supra), the\r\nDivision Bench of this Court has clearly stated that, if the\r\norder of the Tribunal is not signed by all the members,\r\nwho have heard the matter, the same would be a nullity\r\nand such orders cannot be sustained. Even from the\r\nreading of Rule 17(8) of the Karnataka Land Reforms\r\nRules, 1974 this aspect of the matter is very clear. Under\r\nthe circumstances, it cannot be said that the impugned\r\norder, which is not singed by one of the members namely</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Shri Ashok M. Pattan is a nullity. The judgment in the\r\ncase of Vijaya Bank, by its Chief Manager (supra) is\r\ntherefore not applicable to the facts and circumstances of\r\nthe present case.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n12. Learned counsel for the petitioner has also\r\nurged that the lands in question are re-granted to the\r\nfather of the petitioners under the Karnataka Village\r\nOfficers Abolition Act, 1961 and therefore, Form No.7\r\nfiled by the 3rd respondent in respect of the said lands\r\ncould not have been entertained by the Tribunal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>13. Section 126 of the Karnataka Land Reforms\r\nAct, reads as follows:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“126. Application of Act to inams.— For the\r\nremoval of doubts it is hereby declared that the\r\nprovisions of this Act in so far as they confer any\r\nrights and impose obligations on tenants and\r\nlandlords shall be applicable to tenants holding\r\nlands in inam and other alienated villages or lands\r\n1 [(including tenants referred to in section 8 of\r\nthe Village Offices’ Abolition Act, 1961 but subject\r\nto the provisions of the said Act)]1 and to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">landlords and inamdars holding lands in such\r\nvillages or lands.”\r\n</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>From the reading of the same, it is clear that the Tribunal\r\nis empowered to consider the application seeking\r\noccupancy rights of the lands even in respect of the\r\nservice Inam lands.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The writ petition is partly allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7f8eec1bbdc2a61917e57950884bf7b5.jpeg', '88ab6022c429996afb77be08e9118a41.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-14', 1, '', '', '2023-07-13 15:12:50', '2023-07-14 10:44:30'),
(3198, 'zH834ahrX6uH119xcWZfZPNRI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Reference Court while awarding compensation in respect of the sub-soil/minerals underneath the soil of the acquired properties shall take into consideration the provisions of the Karnataka Minor Minerals Concession Rules. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Bagalkot Cement and Industries Ltd Vs The Special Land Acquisition Officer and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>MFA 102892 of 2019 decided on 7 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice R. Devdas and Justice Rajesh Rai K.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>These Miscellaneous First Appeals are filed by a\r\ncommon appellant-M/s. Bagalkot Cement & Industries\r\nLimited, aggrieved of the common judgment dated\r\n25.04.2019 passed in LAC No.173 of 2003 and\r\nconnected matters by the II Additional Senior Civil\r\nJudge & JMFC, Bagalkot (hereinafter referred to as\r\n‘Reference Court’ for short) under the provisions of\r\nSection 18 of the Land Acquisition Act, 1894\r\n(hereinafter referred to as ’the L.A. Act’) rejecting the\r\nclaim of the appellant for award of compensation in\r\nrespect of the sub-soil/minerals underneath the soil of\r\nthe acquired properties. Since the parties to the\r\nproceedings are common and the issue raised is also\r\ncommon, these appeals are disposed of by this\r\ncommon judgment.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. At the threshold, we should make it clear that\r\nalthough prayers are made in all these appeals <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">seeking enhancement of compensation even in respect\r\nof the acquired lands (top-soil), nevertheless, no\r\narguments have been canvassed on behalf of the\r\nappellant in that regard. Therefore, these appeals are\r\nconfined to the issue as to whether the appellant is\r\nentitled for award of compensation in respect of the\r\nminerals lying underneath the sub-soil of the acquired\r\nlands.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">6. This Court, therefore, proceeds to consider\r\nthe question of law as to whether the appellant herein </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is entitled for award of compensation in respect of the\r\nlimestone deposits in the acquired land.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n 7. Insofar as Section 70 of the Karnataka Land\r\nRevenue Act, 1964 is concerned, the provision saved\r\nall rights of mines, minerals and mineral products in\r\nterms of any express provisions of law which were in\r\nforce before the commencement of the Act, in favour\r\nof the owners of the land. However, the provision was\r\nsought to be amended by Act No.20 of 1993,\r\nsubstituting the words ‘save as otherwise expressly\r\nprovided under’ by ‘notwithstanding anything\r\ncontained in’, thereby taking away the legitimate\r\nrights of the owners of the land in respect of the\r\nminerals lying beneath the soil. The amended\r\nprovision was challenged by some of the owners of\r\nthe land before this Court. Two conflicting decisions\r\nwere rendered and consequently, the matter was\r\nconsidered by a Full Bench in the case of</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">State of Karnataka Vs. Dundamada Shetty, reported\r\nin ILR 1993 KAR 2605. The Full Bench held that the\r\nState Legislature wanted to introduce the Bill by which\r\nownership rights of minor minerals which were vested\r\nin the pattadars were sought to be divested and\r\nvested in the State. However, it was held that if the\r\nState Legislature wanted to divest such rights, it could\r\nnot do so without giving any compensation. The\r\namending provision was therefore, held to be in\r\ncontravention of Article 254 (1) which provides that if\r\nany provision of law made by the State Legislature is\r\nrepugnant to any provision of law made by Parliament\r\nwhich Parliament is competent to enact, or to any\r\nprovision of an existing law with respect to one of the\r\nmatters enumerated in the Concurrent List, then,\r\nsubject to the provisions of Clause (2), the law made\r\nby Parliament, whether passed before or after the law\r\nmade by the Legislature of such State, or, as the case </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">may be, the existing law, shall prevail and the law\r\nmade by the Legislature of the State shall to the\r\nextent of the repugnancy, be void. Consequently, the\r\namended provision was struck down.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. The Full Bench also decided the question as to\r\nwhether the owners of the land were entitled to mine\r\nand extract the minerals lying beneath the soil,\r\nwithout obtaining the requisite licence under the\r\nprovisions of the Karnataka Minor Minerals Concession\r\nRules, 1969, and such other laws. It was held in point\r\nNo.6 that insofar as the holders of patta lands in ExMadras State areas which later formed part of\r\nKarnataka State, they have partial ownership rights in\r\nthe minerals found in the sub-soil of their lands\r\noccupied by them. The State has also a share in the\r\nminerals and hence, the holders of such patta lands\r\nwill have to follow the provisions of Chapter-V of the\r\nKarnataka Minor Minerals Concession Rules, 1969,\r\neven if they themselves want to exploit the mineral\r\nfound in the sub-soil of their lands. They were also\r\nrequired to follow the provisions of Rule 62A of the\r\nsaid Rules, at the stage at which they seek to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">transport the minerals quarried by them from their\r\nown lands.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. But, what is to be noticed is that the Hon’ble\r\nFull Bench has in detail considered various provisions\r\nin various statutes and rules while considering the\r\nextent of rights of the pattadars in carrying out mining\r\noperations to extract minor minerals. In that regard,\r\nthe Hon’ble Full Bench has held insofar as Ex-Mysore\r\nState areas forming part of Karnataka State are\r\nconcerned that the owners of patta lands had full\r\nownership rights in the minerals and they need not\r\nfollow any regulatory procedure of Karnataka Minor\r\nMinerals Concession Rules, 1969, save and except\r\nRule 62A of the Karnataka Minor Minerals Concession\r\nRules, while transporting such quarried minerals <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">insofar as Rule 62A being applicable to such material.\r\nHaving this in mind, when we consider the relevant\r\nprovisions of the Karnataka Minor Mineral Concession\r\nRules, 1994, in Chapter-V, we find that in this Chapter\r\npertaining to quarrying of minor minerals in private or\r\npatta lands are concerned, Rule 32 mandates that no\r\nperson in possession of patta lands in Karnataka State\r\nshall undertake quarrying operation of minor minerals\r\nexcept with a quarrying licence granted under that\r\nChapter. In consonance with such requirement, it\r\nappears that the appellant herein obtained mining\r\nlicence commencing from the year 1970. Even as per\r\nthe written submission of the learned Advocate\r\nGeneral, the appellant applied for renewal on\r\n16.01.1989. The second renewal was sought on\r\n29.10.1994, much prior to the issuance of the first\r\n4(1) notification, which was issued in the year 1999.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. It is noticeable that if such pattadar applies\r\nfor licence/permission under Rule 32, the competent\r\nauthority is required to confirm the title, status of land\r\nwith the Deputy Commissioner in case of specified\r\nminor mineral and with the Tahsildar in case of nonspecified minor mineral. Further, in terms of sub-rule\r\n(10) of Rule 32 of Rules, 1994, the pattadar, the\r\nholder of licence, is required to pay in addition to the\r\nroyalty, an amount which is equal to the ‘Average\r\nAdditional Periodic Payment’ if the mineral right of\r\nminor mineral do not vest with the pattadar. This\r\nprovision will have a direct bearing on the issue which\r\nwe are concerned with. It becomes clear that if in the\r\nopinion of the competent authority, while issuing the\r\nlicence/permission in favour of a pattadar, the mineral\r\nrights of minor mineral has not vested in the pattadar,\r\nhaving regard to the applicable provisions of law,\r\ndepending on whether the land was earlier in the Ex- <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Mysore province, Ex-Madras province, Ex-Bombay\r\nprovince or Ex-Hyderabad province, the competent\r\nauthority would have levied and collected the Average\r\nAdditional Periodic Payment, in addition to the royalty.\r\nThe easiest way therefore, to find out as to whether\r\nthe mineral rights in the lands in question vested with\r\nthe appellant herein or not, we may look into the\r\nmining licence/permission and the relevant records, in\r\nterms of sub-rule (10) of Rule 32 of Rules, 1994.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. In the matter of determining the\r\ncompensation payable in respect of the mineral rights\r\npresent beneath the sub-soil of an acquired land, it\r\nwould be relevant to notice paragraphs-74 to 77 of\r\nthe decision in Union of India Vs. Pramod Gupta and\r\nOthers, reported in (2005) 12 SCC 1. Paragraphs-74\r\nto 77 read as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>74... <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Compensation for such minerals may not be\r\ncomputed on the basis of the profits earned by\r\na mining lessee having a valid mining lease\r\ntherefor. Furthermore, a person having a right\r\nto use mines and minerals for his personal use\r\nand not for sale will still have to obtain an\r\nappropriate permit in terms of the statutory\r\nprovisions.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>76. Thus, in a case it may be theoretically\r\npossible for the State to grant a mining lease\r\nof quarry or permit, in favour of an applicant in\r\nrespect of an area over which a mineral right is\r\nalso held by a private owner but in that event\r\nthe private owner would be only entitled to\r\nroyalty. The legislative intent contained in the\r\n1957 Act envisages that even in certain cases\r\nthe Central Government or the State\r\nGovernment, as the case may be, in the event\r\nof their undertaking of mining operations from\r\nthe land belonging to the private owners may\r\nhave to pay royalty to them. The rate of\r\nroyalty, however, will be limited to the amount\r\nprescribed in the 1957 Act or the rules framed\r\nthereunder.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>77. The amount of compensation, therefore, in\r\nview of the statutory provisions will depend\r\nupon several factors, as noticed hereinbefore.\r\nIn any event, the profit earned by illegal\r\nmining i.e. carrying on mining operations\r\ncontrary to the 1957 Act or the rules framed\r\nthereunder, would by no means be a safe\r\ncriteria for determining the amount of\r\ncompensation.”</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. The matter therefore stands remanded back\r\nto the Reference Court specifically for the purpose of\r\nlooking into the mining licence/permission and other\r\nrelevant documents issued by the competent authority\r\nin terms of Rule 32 of the Rules, 1994 or any other\r\nRules prior to the said Rules, holding the field, since\r\nadmittedly mining licence was granted in favour of the\r\nappellant, first in the year 1970. The Reference Court\r\nshall find out as to whether the competent authority,\r\nwhile granting the mining licence in favour of the\r\nappellant collected ‘Average Additional Periodic <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Payment’ in addition to the royalty, as provided in\r\nsub-rule (10) of Rule 32. If it is found that such\r\nAverage Additional Periodic Payment was collected\r\nwhile issuing the licence in favour of the appellant,\r\nthen it can be concluded that the mineral rights of the\r\nlimestone deposits in the lands in question or any\r\nother minor mineral did not vest with the appellant.\r\nOn the other hand, if such Average Additional Periodic\r\nPayment was not collected, then it can be concluded\r\nthat the competent authority and the State have\r\nadmitted to the appellant’s mineral rights of the minor\r\nminerals in the lands in question. After arriving at\r\nsuch decision, the Reference Court may proceed to\r\nconsider the claim of the appellant for award of\r\ncompensation in respect of the limestone deposits in\r\nthe acquired land and pass a judgment in accordance\r\nwith law.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. For the reasons stated above, the\r\nMiscellaneous First Appeals are partly allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6c59c6e52fcba793bfac7f9a6af7ecdd.jpeg', '457e520e7bd4acf804983aba3cf267ee.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-14', 1, '', '', '2023-07-13 15:27:36', '2023-07-14 03:22:52'),
(3199, 'A21siN3g5XK2TdpOKR6LZ0usS', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘rakshanti sthavire putra …’ Law, religion & custom mandate sons to look after their parents, and more particularly aged mother. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gopal and others Vs The Deputy Commissioner and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 13182 of 2022 decided on 12 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Petitioners being the sons of 3rd Respondent - mother\r\naged & ailing lady are knocking at the doors of Writ Court\r\nfor assailing the order dated 25.05.2022 passed by the 1st\r\nRespondent-Deputy Commissioner and the order dated\r\n22.05.2019 passed by the 2nd Respondent -Assistant\r\nCommissioner respectively at Annexures-A & B. The\r\nAssistant Commissioner has directed the Petitioners to pay\r\nto their mother a monthly sum of Rs.5,000/- each.\r\nHowever, the Deputy Commissioner has enhanced it to\r\nRs.10,000/-.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Having heard the learned counsel for the Petitioners\r\nand having perused the petition papers, this Court declines\r\nindulgence in the matter for the following reasons:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(i) The first submission of the Petitioners that appellants\r\ncannot be worse off in their own appeal and therefore the\r\nAppellate order is liable to be voided, is bit difficult to\r\ncountenance. Such a general proposition obtaining in the\r\nrealm of law of appeals is not invocable in cases arising\r\nfrom socio-welfare legislations like 2007 Act, which is\r\nenacted by the Parliament for protecting the interest of\r\nsenior citizens who are in a hapless position, as rightly\r\ncontended by learned HCGP. Such a traditional norm that\r\nowes its origin to the jurisprudence of Colonial Era cannot\r\nbe readily invoked to defeat the intent of the statute. It\r\nhardly needs to be stated that in effectuating the\r\nParliamentary intent, the authorities are also stakeholders <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">along with the parties to the lis. Had it not been so,\r\nperhaps, other factors would have figured for\r\nconsideration.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">(iii) The argument that Petitioners do not have means to\r\npay, is too poor a justification for not looking after the\r\naged & ailing mother, especially when it is not their case\r\nthat they are not able bodied or diseased. The first\r\nPetitioner who is present before the Court and participated\r\nin the proceedings, is hale & healthy; the second Petitioner </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is not before the Court, is true; but it is not his case too\r\nthat he is weak & incapable of earning; if an able bodied\r\nperson is bound to maintain his dependent wife, there is\r\nno reason why such a rule should not apply when it comes\r\nto the case of a dependent mother. An argument to the\r\ncontra falls foul of law & religion, to which the Petitioners\r\nbelong.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(iv) The argument that Petitioners do not have means to\r\npay is liable to be rejected for yet another reason: the first\r\nPetitioner on being specifically asked, admitted in the open\r\nCourt that he owns three shop premises and has been\r\nreceiving Rs.10,000/- by way of monthly rent. The\r\nmother who too present in the Court along with daughters\r\nat once retorts that the rental income is far more than\r\nRs.20,000/-. The Petitioners have not produced the rental\r\nagreements to demonstrate their assertion. Added, they\r\nhave suppressed their rental income from the authorities\r\nwho have made the impugned orders. Such a culpable\r\nconduct of the Petitioners disentitles them to any relief in</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the equitable jurisdiction under Article 227 of the\r\nConstitution, the other provision namely Article 226 having\r\nbeen mindlessly employed in their pleadings.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(v) The next contention of the Petitioners that they are\r\nready & willing to look after their mother and therefore\r\nshe should be directed to join them, is neither legally\r\nsustainable nor factually desirable. This Court saw the\r\nmother Smt.Venkatamma, who is absolutely illiterate and\r\nwho has a fragile health condition; she is aged about 84\r\nyears, as admitted in the Petition itself. Her eyesight is\r\nconsiderably diminished. Law of marriage generally\r\nprovides for restitution of conjugal rights qua the deserting\r\nspouse, is true. No law or ruling of the kind is cited at the\r\nBar that the unwilling parents can be forced to reside with\r\ntheir children. Such a contention is incongruous and\r\nabhorrent to our culture & tradition, to say the least.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(vi) Absolutely no material is produced by the Petitioners\r\nto substantiate their allegation that the mother is being\r\nmanipulated by her daughters. It is not that the daughters want any share in the family property. It is they who have\r\nbeen looking after the mother abandoned by the sons.\r\nBut for them, she would have been on the streets. The\r\ngestures shown by the daughters merits a deep\r\nappreciation at the hands of this Court.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(vii) The last contention of the Petitioners that the amount\r\nof Rs.10,000/- is much on the higher side, is simply liable\r\nto be rejected. We are living in an age when bread is\r\ncostlier than blood. Money is loosing its purchasing power;\r\ndays are proving very costly; a sum of Rs.10,000/- by any\r\nmeasure can be said to be excess; in fact, such a sum falls\r\nshort of the ‘living wages’ of an unskilled workman. To\r\nhold body & soul together, more than that sum is\r\nnecessary. However, this Court very reluctantly abstains\r\nfrom revising it upwardly, there being no such prayer from\r\nthe side of mother. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>In the above circumstances, this Writ Petition being\r\ndevoid of merits is liable to be rejected and accordingly it\r\nis, with a cost of Rs.5,000/- which the Petitioners jointly <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">shall remit to the 3rd Respondent- mother within thirty\r\ndays, failing which they are liable to pay an additional levy\r\nof Rs.100/- per day, if delay is brooked.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8eda29f79a0911f6e80d860c736e893c.JPG', 'b88220d70ec1649752cc4c2fb8a43f1d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-15', 1, '', '', '2023-07-14 12:28:21', '2023-07-15 03:21:54');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3200, 'bERYifzXGcQO8qX7vDVPlXsOW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When the State takes over private land of a person who has undisputed title over it, the owner cannot be asked to approach the civil court for compensation. Refusal to pay compensation violates constitutional mandate. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The State of Karnataka and others Vs Narasimha and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Appeal 100188 of 2022 decided on 7 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.G. Pandit and Justice Vijaykumar A Patil.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This intra-Court appeal is filed by the State\r\nGovernment challenging the order dated 13.01.2021 passed\r\nin W.P.No.61563/2011 (LA-RES) by the learned Single\r\nJudge, whereby, petition filed by the respondent No.1 was\r\nallowed. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Brief facts giving rise to the filing of this appeal\r\nare that, the respondent No.1 invoked the jurisdiction of\r\nwrit court under Article 226 of the Constitution of India,\r\nseeking prayer to issue writ in the nature of mandamus\r\ndirecting the revenue authorities to restore the possession\r\nof the land or pay compensation. It is averred that, the\r\nrespondent No.1 is the owner, in lawful possession of\r\nagricultural land in block No.33 measuring 5 acre 24 guntas\r\nin Saidapur village of Dharwad taluk. He was working in\r\nIndian Air force, hence, he could not cultivate the land in\r\nquestion. At the request of respondent No.1, the State</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The land in question was allotted to one\r\nSri.A.A.Morab by the revenue authorities for cultivation of\r\nland for a period of ten years and after expiry of the period\r\nthe original owner i.e. the respondent No.1 requested the\r\nAssistant Commissioner, Dharwad to restore the land in\r\nquestion. Pursuant to the said request the Assistant\r\nCommissioner vide order dated 21.06.1971 ordered for\r\nrestoration of land in favour of respondent No.1. The\r\nallottee of the land Sri. Morab assailed the order dated\r\n21.06.1971 before the appellate authority. The appeal came\r\nto be dismissed. After dismissal of the appeal the allottee\r\nfiled O.S.No.19/1973 before the Munsiff Court, Dharwad,\r\nchallenging the order of the Assistant Commissioner dated\r\n21.06.1971. The suit came to be dismissed. Being </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">aggrieved by the dismissal the allottee filed R.A.No.15/1975\r\non the file of Additional Civil Judge, Dharwad. The said\r\nappeal was also dismissed on 30.09.1978.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. The allottee had filed an application in Form No.7\r\nunder Section 48A(i) of the Karnataka Land Reforms Act for\r\ngrant of occupancy right as a tenant. The Land Tribunal\r\nallowed the application on 05.04.1978. The respondent\r\nNo.1 challenged the order of the Land Tribunal in Writ\r\nPetition No.5266/1978. This Court allowed the writ petition\r\nand the matter was remanded back to the Land Tribunal for\r\nfresh consideration. The Land Tribunal once again passed\r\nan order dated 28.11.1988 without notice to the respondent\r\nNo.1 granted occupancy right in favour of Sri. A.A.Morab.\r\nThe order of the Land Tribunal was again assailed by the\r\nrespondent No.1 in W.P.No.40120/1993. This Court vide\r\norder dated 01.07.2006 set aside the order of the Land\r\nTribunal and directed the Land Tribunal to settle the\r\ndispute, keeping in mind the ratio laid down in</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Hanumantha Durga Naik Vs. State of Karnataka,\r\nreported in 1988 (3) KLJ 294.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. It is further averred that, the respondent No.1\r\napproached the Tahasildar for restoration of land. The\r\nrevenue authorities have informed the respondent No.1\r\nvide letter dated 23.07.2010 that the subject land has\r\nalready been acquired, for the benefit of University of\r\nAgricultural Science, Dharwad, on 01.04.1999. It was also\r\ninformed that, the allottee Sri. A.A.Morab had filed an <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">application under Section 18(1) of the Land Acquisition Act,\r\n1894 seeking reference. The reference Court in LAC\r\nNo.366/1989 has fixed the market value of the land in\r\nquestion at Rs.50,000/- per acre and the petitioner was\r\nadvised to withdraw the compensation amount kept in\r\nRevenue Deposit pursuant to the award passed by the\r\nSLAO/Assistant Commissioner.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. We have heard the learned counsels for the\r\nparties, perused the writ appeal papers and the records.\r\nThe points arise for consideration in this appeal are :\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Whether the learned single Judge is justified\r\nin issuing direction to the appellants to pay compensation\r\nas per the reference Court award and recover the same\r\nfrom the legal heirs of Sri. A.A.Morab?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> (ii) What orders? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. The answer to the above points are in affirmative\r\nfor the following reason:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(a) There is no dispute that the subject matter of\r\nland i.e. agricultural land in Block No.33 measuring 5 acre\r\n25 guntas in Saidapur village of Dharwad, was owned by\r\nthe respondent No.1 herein and he has requested the State\r\nauthorities to take the land for the management under the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">provisions of Bombay Tenancy and Agricultural Land Act,\r\n1984, as he was working in the Indian Army. The State\r\nauthorities vide order dated 24.02.1960 have taken over\r\nthe land for the purpose of management and the same was\r\nallotted to Sri. A.A.Morab for cultivation for a period of ten\r\nyears.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>d) Meantime the subject land was acquired by the\r\nState Authorities for the benefit of University of Agricultural\r\nSciences, Dharwad. Sri.A.A.Morab, being not satisfied with\r\nthe market value determined by the Land Acquisition\r\nOfficer, has filed an application under Section 18(1) of Land\r\nAcquisition Act, 1894 seeking for enhancement of\r\ncompensation. The reference Court, allowed the reference.\r\nThe beneficiary of acquisition has assailed the reference\r\nCourt Judgment in M.A.68/2009. Meanwhile, the\r\nrespondent No.1 has entered correspondence with the State\r\nauthorities requesting not to disburse compensation in\r\nfavour of Sri.A.A.Morab and also sought impleadment in\r\nM.A.No.68/2009.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. The Hon\'ble Supreme Court in the case of\r\nRadhe Shyam vs. State of Uttar Pradesh (2011) 5 SCC\r\n545 paragraph ink page 44 has held as under </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\"....while examining the land owner\'s\r\nchallenge to the acquisition of land in a petition filed\r\nunder Article 226 of the Constitution, the High Court\r\nshould not adopt a pedantic approach, but decide the\r\nmatter keeping in view the constitutional goals of\r\nsocial and economic justice and the fact even though\r\nthe right to property is no longer a fundamental right,\r\nthe same continues to be an important constitutional\r\nright and in terms of Article 300-A, no person can be\r\ndeprived of his property except by authority of law....\" <br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>19. The constitutional Courts cannot deny justice\r\nmerely on the ground that respondent No.1 has not\r\nchallenged the award before the reference Court or the\r\njudgment of reference Court before the High Court. This\r\nCourt cannot ignore the fact that the appellant-State has\r\nfailed to discharge its duty in protecting the interest of the\r\ntitle holder of the property.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. The appellant-State Government have not issued\r\nany notice of acquisition proceedings to the respondent\r\nNo.1. The land acquisition Officer has passed an award\r\ndated 23.09.1986, wherein, it is clearly stated that, the\r\nname of the Government management appears in the\r\noccupants column and the name of Sri. A.A.Morab as a\r\nlease holder besides, but the names of Basavanneppa and\r\nNingappa and Narsimh Guracharya Avadhani - respondent\r\nNo.1 herein and others names are referred as having\r\nreversionary rights in the property. It is also observed that,\r\n<i>\"an erratum notification to Section 6 to be proposed to the\r\nGovernment for sanction. Hence, the amount of\r\ncompensation should be deposited to R.D. for making\r\npayment as per the report of the Spl. Tahasildar, Land\r\nReforms and also after getting the report, as to how the\r\nGovernment management has appeared in the Kabzedar\r\ncolumn and after getting clearance under the provisions of\r\nULC Act, 1976, the disbursement shall be made.\" </i>These <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">observations in the award clearly goes to show that, there\r\nwas a dispute with regard to disbursement of the\r\ncompensation. It is also not in dispute that, in the\r\npreliminary as well in the final notification issued for\r\nacquisition of land in question, the name of Narasimha\r\nGurudev Avadhani has not been reflected and no notice was\r\nissued to him. Knowing fully well about the observations in\r\nthe award, the appellants have allowed the allottee i.e.,\r\nSri. A.A.Morab to take away the compensation from\r\nreference Court. The Land Acquisition Officer/Assistant\r\nCommissioner who was a party before the reference Court,\r\nought to have objected for the disbursement of\r\ncompensation by the reference Court in favour of\r\nSri.A.A.Morab. Instead of that the Assistant\r\nCommissioner/SLAO has stated that they have no objection\r\nfor disbursement of compensation to Sri.A.A.Morab, despite\r\nknowing that the respondent No.1 is the real owner of the\r\nland in question and when Sri. A.A.Morab has failed to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">establish right over the property in question. The act of the\r\nappellant-State Government is arbitrary and illegal in\r\ndenying the compensation to the real owner. Hence, now\r\nthe appellant-State cannot be allowed to take technical plea\r\nwith an intention to deprive the legitimate right of\r\nrespondent No.1 to receive just and fair compensation, to\r\nover come their lapses.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 21. For the aforesaid reasons, we do not find any\r\nmerit in this appeal. The same fails and is hereby\r\ndismissed.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '72df378ef13aee339dbffb2933d38334.JPG', 'b5d158ea8cca034d28cdeaec37a12339.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-15', 1, '', '', '2023-07-14 12:43:53', '2023-07-15 09:14:14'),
(3201, 'CcE8QyK6U6NgWpzIomK5Unuqn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Divorce. When the allegations of cruelty are consistent and specific which are not refuted by making available for cross-examination and in the absence of any contrary evidence on record, the court shall dissolve the marriage. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ashwimi Vs Chandan.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Miscellaneous First Appeal 103363 of 2022 decided on 7 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S G Pandit and Justice Vijaykumar A Patil.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This appeal is filed under Section 19(1) of Family\r\nCourts Act, 1984 (for short, \'the Act\') against the\r\nJudgment dated 01.04.2022 passed by the Principal\r\nJudge, Family Court, Dharwad in M.C.No.338/2019 by\r\nwhich the petition filed by the appellant-wife seeking\r\ndissolution of marriage on the ground of cruelty was\r\ndismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. In this context, it will be useful to refer the\r\ndecision of Hon\'ble Supreme Court in the case of\r\nMuddasani Venkata Narsaiah (Dead) Through Legal\r\nRepresentatives vs. Muddasani Sarojana , wherein\r\nparagraph No.15 reads as under:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i> \"15. Moreover, there was no effective crossexamination made on the plaintiff’s witnesses with\r\nrespect to factum of execution of sale deed, PW.1\r\nand PW-2 have not been cross examined as to\r\nfactum of execution of sale deed. The crossexamination is a matter of substance not of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">procedure one is required to put one’s own version\r\nin cross-examination of opponent. The effect of non\r\ncross-examination is that the statement of witness\r\nhas not been disputed. The effect of not crossexamining the witnesses has been considered by\r\nthis Court in Bhoju Mandal. v. Debnath Bhagat AIR\r\n1963 SC 1906. This Court repelled a submission on\r\nthe ground that same was not put either to the\r\nwitnesses or suggested before the courts below.\r\nParty is required to put his version to the witness.\r\nIf no such questions are put the court would\r\npresume that the witness account has been\r\naccepted as held in Chuni Lal Dwarka Nath v.\r\nHartford Fire Insurance Co. Ltd. & Anr. AIR 1958 P\r\n& H 440.\"</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Hon\'ble Supreme Court in the case of\r\nVidhyadhar vs. Manikrao and another held at\r\nparagraph No.17 as under:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i> \"17. Where a party to the suit does not\r\nappear into the witness box and states his own case\r\non oath and does not offer himself to be cross\r\nexamined by the other side, a presumption would\r\narise that the case set up by him is not correct as\r\nhas been held in a series of decisions passed by\r\nvarious High Courts and the Privy Council beginning\r\nfrom the decision in Sardar Gurbakhsh Singh v.\r\nGurdial Singh and Anr. . This was followed by the\r\nLahore High Court in Kirpa Singh v. Ajaipal Singh\r\nand Ors. AIR (1930) Lahore 1 and the Bombay High\r\nCourt in Martand Pandharinath Chaudhari v.\r\nRadhabai Krishnarao Deshmukh AIR (1931) <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Bombay 97. The Madhya Pradesh High Court\r\nin Gulla Kharagjit Carpenter v. Narsingh\r\nNandkishore Rawat also followed the Privy Council\r\ndecision in Sardar Gurbakhsh Singh\'s case (supra).\r\nThe Allahabad High Court in Arjun Singh v. Virender\r\nNath and Anr. held that if a party abstains from\r\nentering the witness box, it would give rise to an\r\ninference adverse against him. Similarly, a Division\r\nBench of the Punjab & Haryana High Court\r\nin Bhagwan Dass v. Bhishan Chand and Ors. , drew\r\na presumption under Section 114 of the Evidence\r\nAct against a party who did not enter into the\r\nwitness box.\"</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Keeping in mind the above settled legal\r\nposition, in the instant case, the respondent-husband has\r\nfailed to adduce evidence; in the absence of any contraevidence of respondent, the statement of witness on\r\nrecord is to be taken as true, which has not been disputed\r\nby the respondent. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. For the aforementioned reasons, we are of the\r\nconsidered view that, the Family Court has committed an\r\nerror in appreciating pleading, evidence on record,\r\nresulted in dismissal of the petition filed by the appellantwife seeking for dissolution of marriage on the ground of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cruelty. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n (i) The appeal is allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '667cff6ba91375b4ddebd3b4b07cf984.JPG', 'c21056fabb3bd37f79720e3119c3f27c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-17', 1, '', '', '2023-07-14 12:50:28', '2023-07-17 06:19:03'),
(3203, 'VVCsmxtjc589PB35oEAvzzHrl', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Externment under the Karnataka Police Act. Mere apprehension of the police is not a factor which is required to be considered before passing an order under Section 58 of the Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kumar Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Revision Petition 100084 of 2023 decided on 8 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Anil B Katti.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Revision petitioner challenging the order of externment\r\nproceedings bearing No.MAJ CR/148-2022-23 by respondent\r\nNo.5-Assistant Commissioner, Sub Divisional Magistrate Subdivision, Dharwad district.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. On the basis of a report of respondent No.2 on the\r\nrecommendation of respondents 3 and 4, respondent No.5\r\nissued show cause notice dated 21.01.2023 for submitting the\r\nexplanation of revision petitioner. In response to show cause\r\nnotice, revision petitioner appeared before respondent No.5. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Thereafter, respondent No.5 on the basis of the material\r\nevidence placed before him passed impugned order under\r\nrevision dated 13.02.2023 at Annexure-A in exercise of powers\r\nconferred under Section 56 of the Karnataka Police Act, 1963\r\n(for short \'the Act\') and ordered for externment of revision\r\npetitioner out of the jurisdiction of Dharwad district to the\r\njurisdiction of Gadag from 16.02.2023 to 16.08.2023.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The impugned order under revision passed by\r\nrespondent No.5 dated 13.02.2023 for removal of persons\r\nabout to commit offence falls within the ambit of Section 55 of\r\nthe Act. The removal of persons convicted for certain offences\r\nfalls within Section 56 of the Act. In the present case, there\r\nare no any material evidence placed on record to show that in\r\nany of the criminal cases referred in the order of respondent\r\nNo.5, revision petitioner after trial is convicted. Therefore,\r\nSection 56 of the Act has no application. It is only Section 55\r\nof the Act has been invoked by respondent No.5 for ordering\r\nexternment of revision petitioner under the impunged order\r\nkeeping revision petitioner out of the jurisdiction of Dharwad\r\ndistrict. The legal requirement of Section 55 of the Act are as\r\nfollows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>55. Removal of persons about to commit\r\noffences.— Whenever it shall appear in the City of\r\nBangalore and other areas for which a Commissioner\r\nhas been appointed under Section 7 to the\r\nCommissioner, and in other area or areas to which\r\nthe Government may, by notification in the official\r\nGazette, extend the provision of this section, to the\r\nDistrict Magistrate, or the Sub-Divisional Magistrate\r\nhaving jurisdiction and specially empowered by the\r\nGovernment in that behalf,—</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>(a) that the movements or acts of any person are\r\ncausing or calculated to cause alarm, danger or harm\r\nto person or property, or</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>(b) that there are reasonable grounds for believing\r\nthat such person is engaged or is about to be\r\nengaged in the commission of an offence involving\r\nforce or violence or an offence punishable under\r\nChapter XII, XVI or XVII of the Indian Penal Code, or\r\nin the abetment of any such offence, and when in the\r\nopinion of such officer witnesses are not willing to\r\ncome forward to give evidence in public against such\r\nperson by reason of apprehension on their part as\r\nregards the safety of their person or property, or</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>(c) that an outbreak of epidemic disease is likely to\r\nresult from the continued residence of an immigrant,\r\nthe said officer may, by an order in writing duly\r\nserved on him, or by beat of drum or otherwise as he\r\nthinks fit, direct such person or immigrant so to\r\nconduct himself as shall seem necessary in order to\r\nprevent violence and alarm or the outbreak or spread\r\nof such disease or to remove himself outside the area <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">within the local limits of his jurisdiction or such area\r\nand any district or districts or any part thereof\r\ncontiguous thereto by such route and within such\r\ntime as the said officer may specify and not to enter,\r\nor return to the said place from which he was\r\ndirected to remove himself.</span></i><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The impugned order under revision passed by\r\nrespondent No.5 and the materials relied by him would go to\r\nshow that the present case falls in terms of Section 55(a) of the\r\nAct. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. Respondent No.5 before ordering for externment of\r\nany person in terms of Section 55 must necessarily follow the\r\nprocedure contemplated under Section 58 of the Act and the\r\nsame reads as follows: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>”58. Hearing to be given before an order is\r\npassed under Sections 54, 55 or 56.—</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i> (1) Before <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">an order under Sections 54, 55 or 56 is passed against\r\nany person, the officer acting under any of the said\r\nsections or any officer above the rank of an Inspector\r\nauthorised by that officer shall inform the person in\r\nwriting of the general nature of the material\r\nallegations against him and give him a reasonable\r\nopportunity of tendering an explanation regarding\r\nthem. If such person makes an application for the\r\nexamination of any witness, produced by him, the\r\nauthority or officer concerned shall grant such\r\napplication and examine such witness, unless for\r\nreasons to be recorded in writing the authority or\r\nofficer is of opinion that such application is made for\r\nthe purpose of vexation or delay. Any written\r\nstatement put in by such person shall be filed with the\r\nrecord of the case. Such person shall be entitled to\r\nappear before the officer proceeding under this section\r\nby a legal practitioner for the purposes of tendering\r\nhis explanation and examining the witnesses produced\r\nby him.</span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(2) The authority or officer proceeding under subsection (1) may, for the purpose of securing the\r\nattendance of any person against whom any order is\r\nproposed to be made under Sections 54, 55 or 56\r\nrequire such person to appear before him and to\r\nfurnish a security bond with or without sureties for\r\nsuch attendance during the inquiry. If the person fails\r\nto furnish the security bond as required or fails to\r\nappear before the officer or authority during the\r\ninquiry, it shall be lawful to the officer or authority to\r\nproceed with the inquiry and thereupon such order as </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was proposed to be passed against him may be\r\npassed.\"</span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Learned counsel for revision petitioner relied on the\r\njudgment of co-ordinate bench of this Court in the case of\r\nEJAZ HUSSAIN @ EJAZ ALI @ GUNDA S/O MEER HUSSAIN\r\nVS. THE STATE OF KARNATAKA (Crl.R.P.No.1018/2018\r\ndated 08.02.2019) wherein it has been held that:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i> \"11. Even as could be seen from the impugned\r\norder the learned Sub-Divisional Magistrate is swayed\r\naway by the report given by the police and on the basis\r\nof the said report without making a detailed enquiry\r\nhas passed an externment order. Mere apprehension\r\nof the police is not enough for passing such an order\r\nunder Section 55 of the Act. There must be some\r\ngrounds or there must be adequate material to show <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that there is danger and there is credible material\r\nwhich makes the movements and acts of the person in\r\nquestion alarming or dangerous or fraud with violence\r\nand there must be sufficient reasons to believe that the\r\nperson proceeded against is so desperate and\r\ndangerous that his mere presence in the locality or any\r\npart thereof is hazardous to the community and its\r\nsafety.\"</span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n13. In the present case also, the respondent No.5 has\r\nfailed to form an opinion on tangible material that witnesses\r\nwere not willing to come forward to give the evidence in public\r\nagainst the petitioner. This Court observed and held that noncompliance of Section 55 of the Act and recording of subjective\r\ndecision of Sub-divisional Magistrate renders the externment\r\norder not sustainable in law</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">14. Learned counsel for revision petitioner also relied on\r\nthe judgment of co-ordinate bench of this Court in the case of\r\nDARVESH @ MOHD. DARVESH S/O BHAVASAB VS. THE\r\nSTATE OF KARNATAKA AND ANOTHER\r\n(Crl.R.P.No.200022/2021 disposed of on 09.02.2021). In\r\nthis case also, the order passed by Special Divisional Magistrate\r\nin terms of Section 55 of the Act was under consideration and\r\nheld that mere allegation of unlawful act is not sufficient for </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">passing an order under Section 58 of the Act of 1963 of which\r\nthe consequences are very serious. In the present case,\r\nrespondent No.5 has passed the impugned order under revision\r\nsolely based on the report of respondent No.2 on the\r\nrecommendation of respondents 3 and 4 without making any\r\nenquiry. The mere apprehension of the police is not a factor\r\nwhich is required to be considered before passing an order\r\nunder Section 58 of the Act. There must be application of mind\r\nby the Officer who passes the order with regard to the\r\napprehensions made by the police.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. In the present case also, impugned order passed by\r\nrespondent No.5 except stating that being convinced the\r\nmovement of revision petitioner are causing or calculated to\r\ncause alarm, danger or harm to person or property by\r\nreproducing Section 55(a) of the Act, itself cannot be said as\r\nsufficient evidence to have subjective satisfaction of respondent\r\nNo.5 regarding the apprehension without making any enquiry.\r\nTherefore, the impugned order under revision passed by\r\nrespondent No.5 cannot be legally sustained.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. The proceedings maintained by respondent No.5\r\nalso would go to show that accused was present on 30.01.2023\r\nand his presence was taken on record. On the next date,\r\n06.02.2023 revision petitioner was present and sought for\r\nexcusing him and then impugned order under revision came to\r\nbe passed. The mere obtaining signature of revision petitioner\r\non the order-sheet is not enough to hold that reasonable\r\nopportunity of tendering explanation was given. There is\r\nnothing in writing to show that revision petitioner sought for\r\nexcuse by admitting the averments shown in the show cause\r\nnotice. The show cause notice dated 21.01.2023 has no any\r\nreference of the criminal cases referred in the report of\r\nrespondent No.2 and the one referred in the order by\r\nrespondent No.5. The order of externment has serious\r\nconsequence and keeps away the person so ordered from the\r\nfamily and from his place. The proviso to Section 58 of the Act\r\nalso entitles the revision petitioner to be represented by a legal\r\npractitioner for the purposes of tendering his explanation and\r\nexamining the witnesses produced by him. There is nothing\r\nthat has been recorded in the order-sheet that respondent No.5\r\nhas given to understand revision petitioner that he is entitled to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">engage advocate and file explanation to the show cause notice,\r\nso also can give necessary evidence to rebut the allegations\r\nmade in the show cause notice. Therefore, the impugned order\r\nunder revision passed by respondent No.5 for non-compliance\r\nof mandatory requirement in terms of Sections 55 and 58 of\r\nthe Act and without conducting any enquiry cannot be legally\r\nsustained.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Revision petition filed by revision petitioner is hereby\r\nallowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8f92fbacfe03e21b12c2ff21190c8150.JPG', 'fa7202bc9211b6f3d2197470d6d8d44c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-17', 1, '', '', '2023-07-14 13:12:06', '2023-07-17 08:06:03');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3208, 'gaWUSNs9x88Aiphwphy7T70r2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Gravity of the offence is not a relevant consideration to decline bail to juvenile. Known criminality, expose made to any morale, physical or psychological danger and ends of justice being defeated are the relevant factors. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Manoj Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Revision Petition 100453 of 2022 decided on 12 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Anil B Katti.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The factual matrix leading to the case of\r\nprosecution can be stated in nutshell to the effect that CCWL-1\r\nwas following and teasing victim girl since one year and was\r\npressurizing her to love him. In the month of August 2021, on\r\nSaturday CCWL-1 came to Basel Mission College, Dharwad,\r\nalong with CCWL-7 and by force took victim in bus near KUD <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">where CCWLs-2, 4 and 6 joined them and then victim was\r\ntaken on bike near Om Ashram. CCWLs- 6 and 7 also reached\r\nthe said place, CCWL-7 kissed and touched body of victim and\r\ntried to undress her. Thereafter, CCWL-7 ran away from the\r\nspot by seeing the incident. CCWLs-1 to 7 have committed\r\nforcible sexual intercourse upon victim by using condom. They\r\nhave video-graphed incident through mobile with CCWL-2 and\r\nall of them administered threat to victim not to disclose about\r\nthe incident to anybody. After one week, CCWL-1 again came\r\nto Basel Mission College and met victim on showing video of\r\nearlier incident pressurized victim to come to Suryanagara.\r\nCCWLs-2 to 4, 6 and 8 threatened that if she discloses about\r\nthe incident to anybody they are going to viral the video in\r\nsocial media. CCWLs-2, 4 and 6 have committed forcible\r\nsexual intercourse again on victim and further threatened to kill\r\nher, if she discloses about the incident to anybody. On these\r\nallegations made in the complaint, case was registered in\r\nDharwad town police station in Cr.No.222/2021 for the offences\r\npunishable under Sections 354, 354(D), 363, 366(A), 376D\r\nread with 34 IPC, Sections 4, 6, 8 and 14 of the POCSO Act,\r\n2012. On completion of investigation, charge-sheet is filed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. In view of Section 13 (1)(ii) of JJ Act, 2015, no\r\nsooner CCWL is apprehended and produced before the JJ\r\nBoard, the Probation Officer has to be informed. The JJ Board\r\nhas to call for Social Investigation Report which has been\r\ndefined in Rule 2 (xvii) of the Juvenile Justice (Care and\r\nProtection of Children) Model Rules, 2016 (hereinafter referred\r\nto as \'Rules\'). The said report becomes vital for enquiry to be\r\ndone by the Board while passing orders in relation to such child\r\nas it deems fit under Sections 17 and 18 of the JJ Act. Rule 10\r\nenvisages post-production processes by the Board and the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Social Investigation Report for children in conflict with law has\r\nto be secured in Form No.6.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">14. In the present case, it appears from the records\r\nthat the JJ Board has called for the report from Dharwad\r\nInstitute of Mental Health and Neuro Sciences, Belagavi Road,\r\nDharwad, with regard to mental condition of all CCWLs. The\r\nlearned High Court Government Pleader has produced the\r\ncertified copy of the report submitted by DIMHANS. The report\r\nwould reveal that apart from medical condition of CCWL, the\r\nfamily background and other requirements have been collected.\r\nHowever, in terms of Rule 10 of the Rules, Social Investigation\r\nReport for children in conflict with law has to be secured in\r\nForm No.6 from Probation Officer/Voluntary/Non-governmental\r\nOrganization.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">15. Learned counsel for appellant in support of his\r\ncontention that JJ Board was under legal obligation to secure\r\nSocial Investigation Report from the Probation Officer and the\r\nsaid report has to be taken into consideration while deciding\r\nthe bail application filed under Section 12 of the JJ Act, relied\r\non the latest judgment of Allahabad High Court in XXX\r\nJUVENILE VS. STATE OF UTTAR PRADESH AND ANOTHER <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">isposed of on 25.04.2023. The Social Information Report of\r\nProbation Officer has to be the basis for the JJ Board while\r\ndeciding the bail application or to pass any order keeping in\r\nmind the welfare and well being of the child. It has been\r\nfurther held that the gravity of the offence is not a relevant\r\nconsideration for declining the bail to the juvenile. A juvenile\r\ncan be denied the concession of bail of any of the three\r\ncontingencies specified under Section 12 (1) of the JJ Act, 2015\r\nis available. The Social Investigation Report from the Probation\r\nOfficer has to be obtained within the time slot fixed in terms of\r\nSection 13 (1) of the JJ Act in Form No.6. </span></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Hon\'ble\r\nAllahabad High Court in paragraph 20 of its judgment has held\r\nas follows:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> \"20. \'Form - 6\' of the Juvenile Justice (Care and\r\nProtection of Children) Model Rules, 2016, contains a\r\ndetailed proforma of the social investigation report.\r\nThe report has three parts; the first part requires the\r\nProbation Officer to give the data or information\r\nregarding the close relatives in the family, delinquency\r\nrecords of the family, social and economic status,\r\nethical code of the family, attitude towards religion, the\r\nrelationship amongst the family members, the\r\nrelationship with the parents, living conditions, etc.\r\nThereafter, the report requires the Probation Officer to\r\nprovide the child\'s history regarding his mental </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">condition, physical condition, habits, interests,\r\npersonality traits, neighbourhood, neighbours\' report,\r\nand school, employment, if any, friends, the child being\r\nsubject to any form of abuse, circumstances of\r\napprehension of the child, mental condition of the child.\r\nThe most important part of the report is the third part\r\ni.e., the result of inquiry where the Probation Officer is\r\nrequired to inform the Board about the emotional\r\nfactors, physical condition, intelligence, social and\r\neconomic factors, suggestive cause of the problems,\r\nanalysis of the case including reasons/contributing\r\nfactors for the offence, opinion of experts consulted\r\nand recommendation regarding rehabilitation by the\r\nProbation Officer/Child Welfare Officer. It is incumbent\r\nupon the Juvenile Justice Board to take into\r\nconsideration the social investigation report and make\r\nan objective assessment on the reasonable grounds for\r\nrejecting the bail application of the juvenile.\"</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. The first Appellate Court while declining bail to\r\njuvenile CCWL-4 in paragraph 28 of its order referred to the\r\njudgment of Hon\'ble Apex Court in OM PRAKASH VS. STATE\r\nOF RAJASTHAN AND OTHERS [2012 (5) SCC 201]. I have\r\ncarefully gone through the referred judgment of Hon\'ble Apex\r\nCourt wherein it has been observed and held at paragraph 37\r\nas follows:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span lang=\"EN-US\"> \"In view of the aforementioned discussion and\r\nanalyses based on the prevailing facts and circumstances\r\nof the case, we are of the view tht respondent No.2 Vijay\r\nKumar and his father have failed to prove that respondent\r\nNo.2 was a minor at the time of commission of offence\r\nand hence, could not have been granted the benefit of the\r\nJuvenile Justice Act which undoubtedly is benevolent\r\nlegislation but cannot be allowed to be availed of by an\r\naccused who has taken the plea of juvenility merely as an\r\neffort to hide his real age so as to create a doubt in the\r\nmind of the Courts below who thought it appropriate to\r\ngrant him the benefit of a juvenile merely by adopting the\r\nprinciple of benevolent legislation but missing its vital\r\nimplication that although the juvenile Justice Act by itself\r\nis a piece of benevolent legislation, the protection under\r\nthe same cannot be made available to the accused who\r\ninfact is not a juvenile but seeks shelter merely by using it\r\nas a protective umbrella or statutory shield. We are </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under constraint to observe that this will have to be\r\ndiscouraged if the evidence and other material on record\r\nfail to prove that the accused was a juvenile at the time of\r\ncommission of the offence.\"\r\n</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> The Hon\'ble Apex Court having found that there is no\r\nevidence to prove the minority of accused ordered to send the\r\naccused for trial of Court competent jurisdiction where the trial\r\nis pending.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">19. In the present case, CCWL-4 has not taken plea of\r\njuvenility merely as an effort to hide his real age to avail the\r\nbenefit under the JJ Act. The first Appellate Court in paragraph\r\n20 of its order has recorded specific finding that age of CCWL-4\r\nis 17 years. The preliminary individual assessment report for\r\nJuvenile Justice Board obtained by the Juvenile Board would\r\nalso reveal that the age of CCWL-4 is 17 years. Therefore, the\r\naforementioned judgment of Hon\'ble Apex Court has no\r\napplication to the facts of the present case and muchless, the\r\njudgment of Hon\'ble Apex Court does not deal with the bail\r\napplication of juvenile in terms of Section 12 of the JJ Act. The\r\nwelfare and well being of the CCWL-4 can be taken care of by\r\nhis mother and she is a fit and proper person to keep CCWL-4\r\nunder her custody. Therefore, in the light of the judgment of H</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">on\'ble Punjab and Haryana High Court and Hon\'ble Allahabad\r\nHigh Court referred above, CCWL-4 is entitled for bail.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\nRevision petition filed by the guardian - mother of CCWL4 is hereby allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0919421e8faedc5dd2fec69ab7984976.jpeg', 'b07ae9959e64a3afaed8538b51ed1211.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-18', 1, '', '', '2023-07-17 12:38:54', '2023-07-18 12:18:44'),
(3206, 'phlv3jqG9xmUONxtV1ogKVQQd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'SC/ST (Prevention of Atrocities) Act. The Act is grossly misused by few engaging the Courts of law. Genuine complaints of people who have actually suffered abuse would go into the oblivion. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>V Jagadish Bathija and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 4384 of 2023 decided on 12 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Petitioners are before this Court calling in question\r\nregistration of Crime in Crime No.70 of 2023 for offences\r\npunishable under Sections 3(1)(r) and 3(1)(s) of the Scheduled\r\nCastes and Scheduled Tribes (Prevention of Atrocities)\r\nAmendment Act, 2015.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Sans details, facts in brief, are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n Petitioners are the owners of a premises located in Flat\r\nNo.42, Tower-6, Pebble Bay, No.74, 1st Main Road, RMV 2nd\r\nStage, Dollars Colony, Bangalore - 560 094. Petitioners\r\ndesirous of letting the said premises on rent and the second\r\nrespondent – complainant desirous of taking the premises on\r\nrent enter into a rental agreement on 21.06.2018, per month\r\nfor usage of the said premises and Rs.16,461/- as maintenance\r\ndirectly payable to the Pebble Bay Owners’ Association. A\r\nsecurity deposit of Rs.10/- lakhs was paid to the petitioners to\r\nbe returned interest free. It transpires that towards the\r\nRs.10/- lakhs security deposit, two cheques were handed over\r\nby the complainant one for Rs.3/- lakhs and another for Rs.7/-\r\nlakhs. The second cheque was dishonoured for want of\r\nsufficient funds. The petitioners then register a complaint\r\nagainst the complainant for offences punishable under Section <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">138 of the Negotiable Instruments Act, 1881. The said case is\r\npending in C.C.no.315/2019.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. The second respondent defaulted in payment, neither\r\nthe rent was paid nor the maintenance to the Association.\r\nTherefore, she has caused multiple defaults. By the time the\r\nagreement expired, the complainant was in due of\r\nRs.15,45,733/- as no rent was paid. A legal notice was caused\r\nupon the complainant for eviction, which is also served on the\r\ncomplainant. Despite service of notice, no payment was made.\r\nThey were constrained to initiate proceedings before the\r\nlearned Sessions Judge in O.S.No.4119/2020, seeking recovery\r\nof rent and delivery of vacant possession of the premises. The\r\ncomplainant throughout the said period was working as a\r\nMember of the Third Additional Bangalore Urban Consumer\r\nCommission.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">11. I have given my anxious consideration to the\r\nsubmissions made by the respective learned Counsel and have\r\nperused the material on record. The afore-narrated facts are\r\nnot in dispute. The complainant being a tenant in the house </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">owned by the petitioners is a matter of record. The\r\ncomplainant enters into rental agreement with the petitioners\r\non 21st June, 2018 and does not pay a rupee of rent. On 08\r\nth\r\nSeptember, 2020, petitioners were constrained to approach the\r\nCivil Court in Original Suit No.4119 of 2020 seeking eviction of\r\nthe complainant from the premises and recovery of the arrears\r\nof rent, as no rent had been paid, since the complainant had\r\ntaken the premises on rent. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. Immediately thereafter, the crime comes to be\r\nregistered on 29th March, 2023 alleging the afore-quoted\r\noffences. The narration in the complaint is quite strange. The\r\nnarration is that, on 26th March, 2023, the petitioners come to\r\ntheir house, in which the complainant was a tenant and hurl\r\nabuses inside the house. The complaint then becomes a crime\r\nin Crime No.70 of 2023. If this is the allegation in the\r\ncomplaint, permitting any further investigation into the\r\ncomplaint, would, on the face of it, become an abuse of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">process of law as it forms a classic case where the provisions of\r\nAtrocities Act are misused by a disgruntled tenant who do not\r\nwant to pay rent after taking the premises on rent and sought\r\nto scuttle the decree by not adhering to it. The delivery\r\nwarrant being issued against the complainant, leads the\r\ncomplainant to register the crime as a counter-blast, wreck\r\nvengeance for what she has suffered as an order at the hands\r\nof the concerned Court. Hurling of abuses as obtained under\r\nSection 3(1)(r) and (s) of the Atrocities Act is required to be\r\nnoticed. Section 3(1)(r) of the Atrocities Act directs that the\r\nabuses should be hurled in the public place; Section 3(1)(s)\r\ndirects that the abuses should be hurled in the place of public\r\nview. Therefore, the abuses should be either in the public\r\nplace or in the place of public view. The narration in the\r\ncomplaint itself is that the abuses were hurled inside the house.\r\nThe presence of the complainant inside the house, at that time,\r\nis conspicuously absent in the complaint. Therefore, the very\r\ncomplaint itself is so frivolous that no further proceedings\r\nshould be permitted to be continued. Even otherwise, the Apex\r\nCourt in the case of HITESH VERMA v. STATE OF </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">UTTARAKHAND reported in 2020(10) SCC 710, at\r\nparagraphs 18 to 20, has held as follows:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>14. Another key ingredient of the provision\r\nis insult or intimidation in “any place within public\r\nview”. What is to be regarded as “place in public\r\nview” had come up for consideration before this\r\nCourt in the judgment reported as Swaran\r\nSingh v. State [Swaran Singh v. State, (2008) 8\r\nSCC 435: (2008) 3 SCC (Cri) 527]. The Court had\r\ndrawn distinction between the expression “public\r\nplace” and “in any place within public view”. It\r\nwas held that if an offence is committed outside\r\nthe building e.g. in a lawn outside a house, and\r\nthe lawn can be seen by someone from the road or\r\nlane outside the boundary wall, then the lawn\r\nwould certainly be a place within the public view.\r\nOn the contrary, if the remark is made inside a\r\nbuilding, but some members of the public are\r\nthere (not merely relatives or friends) then it\r\nwould not be an offence since it is not in the public\r\nview (sic)</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>15. As per the FIR, the allegations of abusing\r\nthe informant were within the four walls of her\r\nbuilding. It is not the case of the informant that\r\nthere was any member of the public (not merely\r\nrelatives or friends) at the time of the incident in\r\nthe house. Therefore, the basic ingredient that the\r\nwords were uttered “in any place within public\r\nview” is not made out. In the list of witnesses\r\nappended to the charge-sheet, certain witnesses\r\nare named but it could not be said that those were\r\nthe persons present within the four walls of the\r\nbuilding. The offence is alleged to have taken\r\nplace within the four walls of the building.\r\nTherefore, in view of the judgment of this Court\r\nin Swaran Singh [Swaran Singh v. State, (2008) 8\r\nSCC 435: (2008) 3 SCC (Cri) 527], it cannot be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">said to be a place within public view as none was\r\nsaid to be present within the four walls of the\r\nbuilding as per the FIR and/or charge-sheet.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16. There is a dispute about the possession\r\nof the land which is the subject-matter of civil\r\ndispute between the parties as per Respondent 2\r\nherself. Due to dispute, the appellant and others\r\nwere not permitting Respondent 2 to cultivate the\r\nland for the last six months. Since the matter is\r\nregarding possession of property pending before\r\nthe civil court, any dispute arising on account of\r\npossession of the said property would not disclose\r\nan offence under the Act unless the victim is\r\nabused, intimidated or harassed only for the\r\nreason that she belongs to Scheduled Caste or\r\nScheduled Tribe.</span><span style=\"font-size: 12pt;\"> </span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18. Therefore, offence under the Act is not\r\nestablished merely on the fact that the informant\r\nis a member of Scheduled Caste unless there is an\r\nintention to humiliate a member of Scheduled\r\nCaste or Scheduled Tribe for the reason that the\r\nvictim belongs to such caste.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>22. The appellant had sought quashing of\r\nthe charge-sheet on the ground that the allegation\r\ndoes not make out an offence under the Act\r\nagainst the appellant merely because Respondent\r\n2 was a Scheduled Caste since the property\r\ndispute was not on account of the fact that\r\nRespondent 2 was a Scheduled Caste. The\r\nproperty disputes between a vulnerable section of\r\nthe society and a person of upper caste will not\r\ndisclose any offence under the Act unless, the\r\nallegations are on account of the victim being a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Scheduled Caste. Still further, the finding that the\r\nappellant was aware of the caste of the informant\r\nis wholly inconsequential as the knowledge does\r\nnot bar any person to protect his rights by way of\r\na procedure established by law.”</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Reference being made to another judgment of the Apex\r\nCourt which bears consideration in Hitesh Verma’s case\r\n(supra) in the case of GORIGE PENTAIAH v. STATE OF A.P.1\r\nis apposite wherein the Apex Court holds as under:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“5. Learned counsel appearing for the\r\nappellant submitted that even if all the allegations\r\nincorporated in the complaint are taken as true,\r\neven then, no offence is made out under Section\r\n3(1)(x) of the Scheduled Castes and the\r\nScheduled Tribes (Prevention of Atrocities) Act,\r\n1989 (hereinafter referred to as “the Act”) and\r\nunder Sections 447, 427, 506 of the Penal Code,\r\n1860. As far as Section 3(1)(x) of the Act is\r\nconcerned, it reads as under: <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>13. Reference to the following cases would\r\nreveal that the courts have consistently taken the\r\nview that they must use this extraordinary power\r\nto prevent injustice and secure the ends of justice.\r\nThe English courts have also used inherent power\r\nto achieve the same objective. It is generally\r\nagreed that the Crown Court has inherent power\r\nto protect its process from abuse.\r\nIn Connelly v. Director of Public Prosecutions\r\n [1964 AC 1254: (1964) 2 WLR 1145: (1964) 2 All\r\nER 401 (HL)] Lord Devlin stated that where <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">particular criminal proceedings constitute an\r\nabuse of process, the court is empowered to\r\nrefuse to allow the indictment to proceed to trial.\r\nLord Salmon in Director of Public\r\nProsecutions v. Humphrys [1977 AC 1: (1976) 2\r\nWLR 857: (1976) 2 All ER 497 (HL)] stressed the\r\nimportance of the inherent power when he\r\nobserved that it is only if the prosecution amounts\r\nto an abuse of the process of the court and is\r\noppressive and vexatious that the Judge has the\r\npower to intervene. He further mentioned that the\r\ncourts\' power to prevent such abuse is of great\r\nconstitutional importance and should be jealously\r\npreserved.”</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Apex Court, in the aforesaid judgment, had delineated\r\nthe concept of abuses in public place or in a public view which is\r\nfurther amplified by a three Judge Bench in HITESH VERMA’s\r\ncase (supra).\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 13. In the light of the afore-narrated judgment of the\r\nApex Court, if the case at hand is considered, as observed\r\nhereinabove, the hurling of abuses is neither in a public place\r\nnor in a place of a public view. Apart from the said fact, the\r\ntiming of the complaint is required to be noticed. The delivery\r\nwarrant issued was sought to be executed on 29.03.2023.\r\nAfter the execution or during the process of execution of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">delivery warrant, the complainant registers the crime, not for\r\nan incident that happens on 29.03.2023, but alleging that an\r\nincident of 26.03.2023, three days prior to the said act. The\r\nallegation is, abuses are hurled against the complainant in her\r\nhouse by the petitioners. If the abuses had been hurled,\r\nnothing prevented the complainant from immediately\r\nregistering the complaint on the very day i.e, 26.03.2023.\r\nThough delay would not be fatal, delay in the peculiar facts of\r\nthis case dilutes the substance of the complaint, as the\r\ncomplainant is a member of the District Consumer Forum and is\r\nvery well aware of her rights, being well aware would not have\r\nwaited for 3 days to register the crime. The litigations initiated\r\nby the petitioners against the complainant for which she has\r\nbecome disgruntled has sought to misuse the provisions and\r\nabuse the process of law, only as a counter blast to the action\r\nof the petitioners in litigating against her or to wreck vengeance\r\nfor having succeeded in the aforesaid litigations. It is due to\r\nthe cases of this nature where the provisions of the Act are\r\ngrossly misused engaging the Courts of law, at times, genuine\r\ncomplaints of people who have actually suffered such abuses,\r\nwould go into the oblivion.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. In the light of the facts narrated hereinabove, the\r\njudgment of the Apex Court in HITESH VERMA (supra) would\r\nbecome applicable to the case at hand on all its fours.\r\nTherefore, permitting further investigation to continue against\r\nthe petitioners would amount to abuse of process of law,\r\ndegenerate to harassment and would result in miscarriage of\r\njustice.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Criminal Petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f819229d4c2eaaf4d8790dec81ed591a.jpeg', 'e9037ec6ed7a41f5ad7f351d16f7a569.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-17', 1, '', '', '2023-07-16 18:25:32', '2023-07-17 12:23:08'),
(3209, 'ENAznsletM4XsJCFUn8yL6WOY', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Anticipatory bail. Though Court can’t hold a mini trial on merits, usage of deadly weapon and attack on vital part of the body are factors to be considered to reject the petition. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Honnurswamy and others Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 101337 of 2023 decided on 7 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V. Srishananda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The brief facts of the case are as under:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n 3.1. A complaint came to be lodged by Shri. C.\r\nBasavaraja with Ballari Rural Police Station on\r\n27.05.2023 which was registered in Crime\r\nNo.137/2023 for the o ffences punishable under\r\nSections 143, 147, 148, 323, 324, 307, 448, 427,\r\n504 and 506 read with Section 149 of IPC.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. No doubt the wordings used in Section 301\r\nof Cr .P.C. and the wordings used in proviso under\r\nSection 24(8) of the Cr.P.C. has got a little\r\ndifference. Taking note of the dictum of the Hon\'ble\r\nApex Court in the case of Jag jeet Singh (supra) it\r\nall boils down to a situation that it is the Court\r\nwhich is required to use its discretion in allowing the\r\ndefacto complainant/victim in a given case not only\r\nto assist the prosecution but also participate in the\r\nproceedings as an adversary.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. In order to appreciate the said contention\r\nof Shri. Sandesh Chouta , learned Senior Counsel for\r\ndefacto complainant, it is necessary for this Court to\r\nextract Section 301 of Cr.P.C. and Section 24(8) of\r\nCr.P.C., which reads as under;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i> \"Section 301-Appearance by Public\r\nProsecutors.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may\r\nappear and plead without any written <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">authority be fore any Court in which that case\r\nis under inquiry, trial or appeal .</span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(2) If in any such case any private\r\nperson instructs a pleader to prosecute any\r\nperson in any Court, the Public Prosecutor or\r\nAssistant Public Prosecutor in charge of the\r\ncase shall conduct the prosecution, and the\r\npleader so instructed shall act therein under\r\nthe directions of the Public Prosecutor or\r\nAssistant Public Prosecutor , and may, with\r\nthe permission of the Court, submit written\r\narguments after the evidence is closed in the\r\ncase .</span><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>Sect ion 24-Public Prosecutors-\r\n(1) to (7) - xxxxxxxxxxxx</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>(8)-The Central Government or the\r\nState Government may appoint, for the\r\npurposes of any case or class of cases, a\r\nperson who has been in practice as an\r\nadvocate for not less than ten years as a\r\nSpecial Public Prosecutor:</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>Provided that the Court may permit the\r\nvictim to engage an advocate of his choice to\r\nassist the prosecution under this subsection .\" </i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Further the relevant paragraph in the judgment\r\nof the Hon\'ble Apex Court in the case of Jagjeet\r\nSingh (supra) is also culled out hereunder:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\"24. The above stated enunciations are\r\nnot to be conflated with certain statutory\r\nprovisions, such as tho se present in the\r\nSpecial Acts like the Scheduled Castes and\r\nScheduled Tribes (Prevention of Atrocities)\r\nAct, 1989 , where there is a legal obligation\r\nto hear the victim at the time of granting\r\nbail. Instead, what must be taken note of is\r\nthat:</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>24 .1.First, the Indian jurisprudence is\r\nconstantly evolving, whereby, the right of\r\nvictims to be heard, especially in cases\r\ninvolving heinous crimes , is increasingly\r\nbeing acknowledged.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>24 .2.Second , where the victims\r\nthemselves have come forward to participate\r\nin a criminal proceeding , they must be\r\naccorded with an opportunity of a fair and\r\neffective hearing. If the right to file an\r\nappeal against acquittal , is not accompanied\r\nwith the right to be heard at the time of\r\ndeciding a bail application , the same may <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">result in grave miscarriage of justice .\r\nVictims certainly cannot be expected to be\r\nsitting on the fence and watching the\r\nproceedings from a far , especially when they\r\nmay have legitimate grievances. It is the\r\nsolemn duty of a court to deliver justice\r\nbe fore the memory of an injustice eclipses .\"</span><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Applying the principles of law enunciated\r\nin the case of Jagjeet Singh (supra) in the light of\r\nlegal provisions under Section 301 and proviso to\r\nSection 24(8) of Cr .P.C. to the case on hand since\r\nthe prosecution has expressed its apprehension in\r\nclear and categorical manner in opposing the bail\r\nrequest of petitioners with vehemence, the defacto\r\ncomplainant can only be permitted to play the role\r\nof assisting the prosecution in effectively opposing\r\nthe bail application of petitioners/accused persons.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. In the case on hand , since the prosecution\r\nhas expressed its apprehension in a clear and\r\ncategorical manner, the role that could be limited to\r\nthe victim is only to assist the prosecution in\r\nopposing to bail application of the\r\naccused/petitioners . </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. Shri. Srinand A. Pachhapure, learned\r\ncounsel for petitioners , contended that the incident\r\nhas occurred at a spur of a moment especially when\r\npetitioners and others had visited the factory only\r\nwith a request of providing them an employment to\r\neak out their livelihood and they cannot be branded <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as a rate criminals. He further argued that a trivial\r\nincident has been blown out of proportion by the\r\nprosecution by invoking Section 307 of IPC.\r\n 12.1. He also pointed out that none of the\r\npetitioners/accused persons visited the factory\r\npremises armed with deadly weapons which results\r\nin an invariable inference that there was no\r\nintention to take away life of Shri. Manish Agarwal\r\nor anybody from the factory .\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16. However, when the altercation turned into\r\nan ugly incident, minor injuries could have been\r\ncaused to the people o f the factory and few people\r\nfrom accused party have also sustained injuries. He\r\nfurther contended that taking note of these aspects\r\nof the matter, petitioners can be enlarged on bail.\r\nBut the fact remains that petitioners are not\r\navailable for Investigation Agency from the date of\r\noffence till today. There are direct allegations as\r\nagainst first petitioner who is accused No.1 in as\r\nmuch as he is the one who assaulted Shri. Manish </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Agarwal with a weapon on his head . Though this\r\nCourt is not required to hold a mini trial to find out\r\nthe merits of the case at this stage, the prima facie\r\nmaterial on record would go to show that the\r\nweapon used being a deadly weapon and part chosen\r\nbeing a vital part of the body namely the head of the\r\ninjured , resulting in head injury to Shri. Manish\r\nAgarwal, this Court is of the considered opinion that\r\nanticipatory bail request of first petitioner who is\r\naccused No .1 cannot be entertained by this Court.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">17. Further, insofar as accused Nos.4, 7 and 8\r\nare concerned their non availability with the\r\ninvestigation agency , has resulted in crippling the\r\ninvestigation to a considerable extent. There are no\r\nspecific overt acts alleged against these petitioners\r\neither.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18. Accordingly, directing these petitioner\r\nNos.2 to 4 / accused Nos.4, 7 and 8 to join the\r\ninvestigation and undergo limited period of custodial\r\ninterrogation would not only meet the ends of justice </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">but also protect the rights of these petitioners and\r\nneed of the prosecution in an harmonious way. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The criminal petition against first\r\npetitioner(accused No .1) is hereby\r\nrejected. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'af0b6e8a350c4df256c72d66517a4826.JPG', '797bf8a49fb822cc9a112178346fa878.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-18', 1, '', '', '2023-07-17 13:03:49', '2023-07-18 10:22:40');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3207, '90PkZnIHxbeuZPe8Pkz7cgGZW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Principle of Feeding the Grant by Estoppel would enure to the benefit of purchasers of Inam lands upon the re-grant under the Karnataka (Religious and Charitable) Inam Abolition Act, 1955. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Venkatesha and others Vs Venkatamuniyappa and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 397 of 2014 decided on 6 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Shivashankar Amarannavar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The parties will be referred to their ranking as\r\nin the Trial Court. Appellants 1 and 2 were defendants 1\r\nand 2, respondent No.1 was plaintiff and respondents 2(a)\r\nto 2(d) are legal representatives of deceased defendant\r\nNo.3 and respondents 3(a) to 3(c) are the legal\r\nrepresentatives of defendant No.4 and respondent No.4\r\nwas defendant No.5 in O.S.No.334/2007.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The plaintiff filed the said suit seeking\r\ndeclaration that partition deed dated 17.10.2005 entered\r\ninto between the father of defendants 1 and 2 and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">defendants 1 and 2 is not binding on plaintiff, declaring\r\nthat the plaintiff is the absolute owner in possession of suit\r\nschedule property and relief of permanent injunction\r\nrestraining the defendants from alienating, encumbering\r\nor creating any charges or any way meddling with the suit\r\nschedule property. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. The case of the plaintiff before the Trial Court\r\nwas that he is the absolute owner in possession and\r\nenjoyment of the suit property bearing Sy.No.162 of\r\nBoodigere village measuring 1 acre 18 1/4 guntas, having\r\npurchased the same through the registered sale deed\r\ndated 31.05.1973 executed by defendant No.4. It is stated\r\nthat rectification deed dated 13.03.1997 came to be\r\nexecuted to rectify the mistake in the sale deed regarding\r\nsurvey number of the property. It is stated that originally\r\nthe suit property was belonging to one Thimmadasappa,\r\nwho had executed the registered sale deed on 17.05.1971\r\nin favour of the 3rd defendant, then the 3rd defendant\r\nsold it to 4th defendant through registered sale deed dated <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">24.03.1972. The plaintiff purchased the suit property from\r\n4th defendant under the registered sale deed dated\r\n31.05.1973. The plaintiff applied for mutation, but the 5th\r\ndefendant has not made the proper entry in the concerned\r\nrecords. It is stated that original owner Thimmadasappa\r\nhas partitioned the property by distributing the same to\r\nhis sons i.e. defendants 1 and 2 through registered\r\npartition deed dated 17.10.2005. It is stated that the said\r\npartition deed is null and void, as on the date of the said\r\ndocument itself Thimmadasappa had no legal right in\r\nrespect of the said property. The revenue authorities have\r\nnot effected the entry in the name of the plaintiff in\r\nrevenue records. Taking undue advantage of the same,\r\nThimmadasappa and defendants 1 and 2 have partitioned\r\nthe said property. Claiming the above reliefs, the suit\r\ncame to be filed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. The First Appellate Court re-appreciating the\r\nevidence on record has answered point Nos.1 to 4 in the\r\naffirmative and allowed the appeal, setting aside the\r\njudgment of the Trial Court and decreed the suit of the\r\nplaintiff declaring that the plaintiff is the absolute owner of\r\nsuit property and partition deed dated 17.10.2005 entered\r\ninto between father of defendants 1 and 2 and defendants\r\n1 and 2 is not binding on rights of the plaintiff over the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">suit property and restrained the defendants 1 and 2 from\r\ninterfering with the plaintiff\'s peaceful possession and\r\nenjoyment of the suit property. Liberty has been reserved\r\nto the plaintiff to approach the concerned authority for\r\nmutation of his name in the revenue records. Aggrieved by\r\nthe judgment and decree passed by the First Appellate\r\nCourt, the defendants 1 and 2 have filed the second\r\nappeal. The second appeal came to be admitted to\r\nconsider the following substantial question of law:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> \"When the Trial Court on the basis of the\r\nevidence placed on record dismissed the suit\r\ninstituted by the respondent by appreciating the\r\nevidence on record, whether the First Appellate\r\nCourt was justified in reversing the Judgment and\r\ndecree of Trial Court and in doing so, did not assign\r\nappropriate and valid reasons to overcome the\r\nfindings of the Trial Court and thereby committing\r\nillegality in the impugned Judgment and Decree\"?</span><span style=\"font-size: 12pt;\"> </span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. Considering all these boundaries mentioned\r\nsupra, the property sold under the sale deed Ex.P3 is the\r\nsuit schedule property. It is not the claim of defendant Nos.1 and 2 that their father is also owning Sy.No.1/4\r\nmeasuring 1 acre 18¼ guntas. Therefore, the property\r\npossessed by Sri.Thimmadasappa, father of defendant\r\nNos.1 and 2 is the property measuring 1 acre 18¼ guntas\r\nwhich is sold under the sale deed Ex.P3. The survey\r\nnumber mentioned in Ex.P1 – sale deed has been rectified\r\nfrom ‘Sy.No.1/4’ to ‘Sy.No.162’ under the rectification\r\ndeed – Ex.P2 executed by defendant No.4.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. Considering the boundaries referred supra, the\r\nproperty sold under Ex.P3 is the property bearing\r\nSy.No.162 and therefore, the rectification deed executed\r\nby defendant No.4 (Ex.P2) is correct and it is only for\r\nrectification of survey number keeping the other aspects\r\nie., the boundaries and the measurements intact.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. Therefore, the First Appellate Court considering\r\nall these aspects has justified in holding that the property\r\nsold by Sri.Thimmadasappa was Sy.No.162 measuring\r\n1 acre 18¼ guntas. The Trial Court swayed away by the\r\nsurvey numbers mentioned in the sale deeds in rejecting the claim of the plaintiff without considering the\r\nboundaries of the property sold and that\r\nSri.Thimmadasappa was not possessing any other\r\nproperty as on the date of the sale deed – Ex.P3.\r\nTherefore, the First Appellate Court was justified in\r\nreversing the findings of the Trial Court.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. Learned counsel for the appellant would\r\ncontend that as the property bearing Sy.No.162 was an\r\nInam land which came to be vested with the State on\r\n01.07.1970 by virtue of Notification dated 04.04.1970\r\nissued by exercising the power under Sub Section (4) of\r\nSection 1 of the Mysuru (Religious and Charitable) Inams\r\nAbolition Act, 1955. He further argued that as the land in\r\nSy.No.162 was an Inam land, it came to be vested with\r\nthe State and Sri.Thimmadasappa - the father of\r\ndefendant Nos.1 and 2 was not having title to execute the\r\nsale deed in respect of the same as on 17.05.1971, when\r\nthe sale deed – Ex.P3 came to be executed.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. Even though Sri.Thimmadasappa was not\r\nhaving interest and title in Sy.No.162 as on 17.05.1971,\r\nthe date of sale deed – Ex.P3, but he came to acquire the\r\ntitle to the said property by virtue of grant in his favour\r\ndated 05.08.1982. Where a grantor has purported to\r\ngrant an interest in the land which he did not at that time\r\npossess, but subsequently acquires the benefit of his\r\nsubsequent acquisition, goes automatically to the earlier\r\ngrantee. Under the common law doctrine, if the grantee\r\nsells the property which does not belong to him and\r\nafterwards acquires such title as enables him either wholly\r\nor partially to perform his contract, he is bound to do so;\r\nand subsequently, acquired estate feeds the estoppel\r\nwhich arises out of vendor’s covenants for title, express or\r\nimplied. The said doctrine of estoppel as contained in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 43 of the Transfer of Property Act, 1882 which\r\nreads thus; </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>\"43. Transfer by unauthorized person who\r\nsubsequently acquires interest in property\r\ntransferred – Where a person [fraudulently or]\r\nerroneously represents that he is authorized to\r\ntransfer certain immoveable property and professes\r\nto transfer such property for consideration, such\r\ntransfer shall, at the option of the transferee,\r\noperate on any interest which the transferor may\r\nacquire in such property at any time during which\r\nthe contract of transfer subsists.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>Nothing in this section shall impair the right of\r\ntransferees in good faith for consideration without\r\nnotice of the existence of the said option.”</i></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. Section 43 follows a common rule of estoppel.\r\nThe rule is that if a man who has no title whatsoever to the\r\nproperty, grants it by a conveyance which in form carries\r\nthe legal estate, and if he subsequently acquires an\r\ninterest sufficient to satisfy the grant, the estate instantly\r\npasses. Thus, where a person having partial interest in\r\ncertain property possess a larger interest and subsequently <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">acquires that interest, the section applies and the\r\ntransferee is entitled to interest acquired by the transferor.\r\nWhere a person having no title represents that he is a\r\npresent and transferable title and the transferee (acting on\r\nit) takes a transfer and the transferor subsequently\r\nacquires the property, this section 43 applies. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30. The Hon’ble Apex Court in the case of\r\nN. Venkateshappa vs. Munemma and Others reported\r\nin (2016) 4 SCC 147, considering the similar situation in\r\nKarnataka Village Offices Abolition Act, 1961 placed\r\nreliance on the decisions of this Court and answered as\r\nunder:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>“5. In Lakshmana Gowda v. State of Karnataka, the\r\nDivision Bench of the High Court had an occasion to\r\nconsider questions including one concerning rights of an\r\nalienee of a service inam land from its holder or the\r\nauthorised holder. It dealt with various issues but the\r\none concerning the present matter was Question (iii)\r\nwhich was to the following effect: (SCC OnLine Kar para\r\n50) </b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>50. (iii) Did an alience of a service inam land\r\nfrom its holder or the authorised holder,\r\nacquire title to such land, if the alienation had\r\ntaken place between the date of the coming\r\ninto force of the principal Act and the date of\r\nthe regrant, after its regrant to its holder or\r\nthe authorised holder under Section 5 or 6, as\r\nthe case may be, of the principal Act?\" <br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>6. The answer to the aforesaid question was given in\r\npara 66 of the judgment in the following words:\r\n(Lakshmana Gowda case,(1981) 1 Kant LJ 1, SCC\r\nOnLine Kar)\r\n \"</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>66. Hence, our answer to the question is that if\r\nthe holder or the authorised holder of a service\r\ninam land had alienated it after the principal Act\r\ncame into force and before it was regranted to\r\nhim under Section 5 or 6 of the principal Act, the\r\nalienee acquired a title to that land after such\r\nregrant to his alienor.\"</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>7. During the course of its discussion concerning the\r\naforesaid question, it was also observed: (Lakshmana\r\nGowda case, (1981) 1 Kant LJ 1, SCC OnLine Kar para\r\n65)</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>\"65. We have already held that though the\r\nholder or the authorised holder of a service\r\ninam land got title to such land only when it <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was actually regranted to him under Section 5\r\nor 6 of the principal Act, such title related back\r\nto the date of coming into force of that Act.\r\nFrom this, it would follow that if he purported\r\nto alienate such land before it was regranted to\r\nhim, but after the principal Act came into force,\r\nthe doctrine of feeding the grant by estoppel\r\nembodied in Section 43 of the Transfer of\r\nProperty Act, would apply and the title he\r\nsubsequently acquired on such regrant of that\r\nland, would ensure to the benefit of his\r\nalienee, who would get a good title to such\r\nland after such regrant to his alienor.\"</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. In the said case, the Hon’ble Apex Court has\r\nalso considered the similar situation dealt with by this\r\nCourt in the case of Syed Basheer Ahmed Vs. State of\r\nKarnataka reported in (1994) 1 K.L.J 385.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. Considering the above two cases of this Court,\r\nas also considering Paragraph 15, upon grant of occupancy\r\nrights under Section 6 of Mysuru (Religious and\r\nCharitable) Inams Abolition Act, 1955 in favour of\r\nSri.Thimmadasappa - the father of defendant Nos.1 and 2, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">grant must enure to the benefit of alienees ie., defendant\r\nNos.3, 4 and the plaintiff. Upon such grant, the title\r\nholder of the granted land ie., inam land would relate back\r\nto the date of coming into force of the provisions of the\r\nKarnataka (Religious and Charitable) Inams Abolition Act,\r\n1955. Therefore, the alienation effected by the father of\r\ndefendant Nos.1 and 2 namely Sri.Thimmadasappa on\r\n17.05.1971 (sale deed at Ex.P3), by principle of feeding\r\nthe grant by estoppel would enure to the benefit of alinees\r\nwho would get good title to such land after such grant.\r\nTherefore, the contention of the counsel for the appellants\r\nthat Sri.Thimmadasappa, the plaintiff and his vendors\r\nwould not get title to the suit schedule property as on the\r\ndate of sale deed - Ex.P3 does not hold any substance.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. Therefore, considering all these aspects, the\r\nFirst Appellate Court was justified in reversing the\r\njudgment and decree of the Trial Court and it has assigned\r\nreasons to over come the findings of the Trial Court and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">accordingly, the substantial question of law is answered\r\nand appeal is dismissed.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2bc14c22e690ca8f9c959ed566709751.JPG', '5e14f798aaed1f5aa81617a42ab4c331.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-17', 1, '', '', '2023-07-16 19:16:11', '2023-07-17 03:16:09'),
(3210, 'Cpth124GZBcGSETM7yfE9Jt4L', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Violation of privacy. There is no requirement for the Police to take permission of the Magistrate to register the case under Section 66E of the Information Technology Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Neha Rafiq Chachadi Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 102165 of 2019 decided on 3 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V. Srishananda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The brief facts of the case are as under :-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>A complaint came to be lodged by Shayeesta\r\nAga w/o Yusuf Aga with Belagavi CEN Police which\r\nwas registered in Crime No.21/2019 on 02.10.2019 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for the offence punishable U/sec.66E of the\r\nIn formation Technology Act, 2000.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">8. The punishment contemplated for the said\r\noffence is three years imprisonment or fine or with\r\nboth. The fact of publishing the fake and obscene </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and obnoxious content in the fake instagram account\r\nof the 2nd respondent defacto complainant is very\r\nmuch clear from the material available on record.\r\nTaking note of the fact that there was such post in\r\nthe instagram account which was not opened by the\r\n2nd respondent complainant, and there is a specific\r\nallegation that it is the petitioner who opened the\r\nfake instagram account in the name of the 2nd\r\nrespondent and posted illegal and obnoxious\r\ncon tents in the said post, registration of the case\r\nand investigation is very much necessary to unearth\r\nthe truth in the incident. Given the punishment\r\nprescribed for the offence U/sec.66E , it is cognizable\r\nin nature. Therefore, first ground on which the\r\npetitioner is seeking quashing o f proceedings cannot\r\nbe countenanced in law.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. Insofar as the second contention of the\r\npetitioner that the proceedings are vitiated as it is\r\nnot registered by the Inspector of Police as is\r\ncon templated under Section 78 of the Information</span><span style=\"font-size: 12pt;\"> T</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">echnology Act, 2000 cannot also be countenanced\r\nfor more than one reason .\r\n10. In order to appreciate the same , it is just\r\nand necessary to cull out Section 78 of the\r\nIn formation Technology Act, 2000, which reads as\r\nunder:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>\"78. Power to investigate offences—\r\n Not withstanding anything contained in\r\nthe Code of Criminal Procedure, 1973 (2  of\r\n1974), a police officer not below the rank\r\nof Inspector shall investigate any offence\r\nunder this Act.\"</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. On careful consideration of the language\r\nand wordings employed in the said section by the\r\nLegislature, it is crystal clear that there is no bar to\r\nregister a case by a police official lesser in the rank\r\nthat of a Inspector of Police. However, what the\r\nSection 78 of the Information Technology Act, 2000\r\nwould contemplate is that the investigation should\r\nbe conducted by a person who is of the rank of an <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Inspector o f Police and not below the rank of an\r\nInspector of Police.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12. In the case on hand, it is seen that the FIR\r\ncame to be registered by the Sub-Inspector of Police\r\nand not by the Inspector of Police. Further, it is also\r\nnoticed by virtue of the interim order of stay granted\r\nin the present petition, no investigation has taken\r\nplace at all.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13. Therefore, rights of the petitioner is not\r\nput any jeopardy so as to seek for intervention of\r\nthis Court by exercising the power under Section 482\r\nCr.P.C.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">14. Therefore, the ground that has been urged\r\non behalf of the petitioner that the registration of\r\nthe case vitiated for non-compliance of the Section\r\n78 of the In formation Technology Act, 2000, cannot\r\nalso be countenanced in law and therefore, needs to\r\nbe brushed aside.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The petition is dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'af8da1bb784a56da829460e533a8d114.JPG', 'e4559746de3d4687480ca0a7bacb9bd9.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-18', 1, '', '', '2023-07-17 13:35:35', '2023-07-18 03:17:06'),
(3211, '1jnOkBRKxRjnD9rzfIkVEphBc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Reservation of posts in excess of 50% to SC and ST category under the Karnataka Gram Swaraj and Panchayat Raj Act is not ultravires the Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shivananda Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 201732 of 2023 decided on 11 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioner claims to be an elected Member of\r\nSonkere Chandanahalli Gram Panchayat and is\r\naggrieved by the reservation made for the post of\r\nAdhyaksha and Upadhyaksha in Chandanahalli Gram\r\nPanchayat.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The points that would arise for determination in the\r\npresent matter are:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i. Whether there is any discrimination in the\r\nreservation made of the posts for\r\nPresident and Vice President by the\r\nElection Commission?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ii. Whether by reserving posts for both SC\r\nand ST category, which in totality would <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">exceed 50%, could there be said to be in\r\nviolation of mandate of Clause (a) of\r\nSubsection (2) of Section 44 of the Act ?\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>iii. Whether in the present case there is any\r\ndiscrimination and or excess reservation\r\nrequiring interference at the hands of this\r\nCourt?</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\niv. What order ?</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>9. ANSWER TO POINT NO.1: Whether there is any\r\ndiscrimination in the reservation made of the\r\nposts for President and Vice President by the\r\nElection Commission?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.2. The parameters which are required to be\r\nconsidered being the total population of persons\r\nof a particular category, number of posts\r\navailable has been taken into consideration the\r\nrequisite parameters, there being no other\r\nparameter which has been pointed out to have\r\nbeen missed by either the petitioner or to my\r\nmind, the formula having taken into\r\nconsideration all the variables, the number of\r\nposts which have been arrived at being 1185\r\nposts for SC category and 543 for ST category\r\nis proper and correct.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.3. Thus, what remains to be ascertained is the\r\nnumber of posts to be reserved in each of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">talukas on the basis of the variables of SC and\r\nST population of that particular taluka. There\r\nbeing no dispute that the first step to be taken\r\nis the reservation for the SC and ST vertically\r\nand thereafter horizontally for female among\r\nthat particular categories, the formula then\r\nadopted by the Election Commission to\r\ndetermine the ‘population per post’ is also\r\nproper and correct inasmuch as what is done is,\r\n‘The total population of a category/No.of posts\r\ndetermined for that category” to arrive at\r\npopulation per category.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10.4. In the present case though on the basis of older\r\ncensus of 2011 that being the only census\r\navailable, the per post population of SC\r\ncategory arrived at 6173 and per post\r\npopulation of the ST category has been arrived\r\nat 6178 which also cannot be disputed.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.5. The SC population of Humnabad taluk being\r\n35,945, dividing the same by Per post\r\npopulation=5.82 and the said figure being\r\nhigher than the median point ‘5.5’ in terms of\r\nClause (c) of Subsection (2) of Section 44 of\r\nthe Act, the same has been rounded off to ‘6’\r\nwhich again cannot be found fault with.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.6. The ST population of Humnabad taluk being\r\n28,712, dividing the same by Per post\r\npopulation=4.64 and the said figure being\r\nhigher than the median point ‘5’ in terms of\r\nClause (c) of Subsection (2) of Section 44 of\r\nthe Act, the same has been rounded off to ‘5’\r\nwhich again cannot be found fault with.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.7. I answer point No.1 by holding that in the\r\npresent case there is no discrimination in the\r\nreservation made of the posts for President and\r\nVice President by the Election Commission</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. ANSWER TO POINT NO.2: Whether by reserving\r\nposts for both SC and ST category, which in\r\ntotality would exceed 50%, could there be said\r\nto be in violation of mandate of Clause (a) of\r\nSubsection (2) of Section 44 of the Act ? <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11.1.Though at the first blush, the reservation of 11\r\nseats for SC and ST category, out of 19 seats\r\nappears to be more than 50%. However a\r\ndeeper examination indicates otherwise since in\r\nterms of Clause (c) of Subsection (2) of Section\r\n44 of the Act, the per category reservation has\r\nto be fixed at not less than 50% and if 5.82 or\r\n4.64 were to be rounded to the lower number,\r\nit would come to less than 50% of each\r\ncategory. As such, rounding off to ‘6’ and ‘5’\r\ncannot be found fault with. The posts to be\r\nmanned by individuals the decimals can only be\r\ngiven effect to by rounding off to a whole\r\nnumber since a human being cannot be divided\r\ninto lesser than a whole number.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11.5.I answer point No.2 by holding that reserving\r\nposts for both SC and ST category, which in\r\ntotality would exceed 50%, there cannot be\r\nsaid to be in violation of mandate of Clause (a)\r\nof Subsection (2) of Section 44 of the Act, so\r\nlong as the reservation per category is 50%.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. ANSWER TO POINT NO.3: Whether in the\r\npresent case there is any discrimination and or\r\nexcess reservation requiring interference at the\r\nhands of this Court?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12.2. To my considered mind the taking of the\r\npopulation into account would only arise for the\r\npurpose of determining the total number of\r\nposts, as also determining the population per\r\npos, once that is done, the rotation is a\r\nstandalone element which is required to be\r\nconsidered only on the basis of earlier reserved\r\npost and there is no nexus or relationship with\r\nthe population once again. Thus, this aspect\r\nwould have to be taken into consideration by\r\nthe Election Commission, as also the Deputy\r\nCommissioner fix the rotation without reference\r\nto the population of the taluka, but, however\r\nreference would have to be taken to the\r\ncandidates who have been elected per category\r\nto each of the Gram Panchayat insofar as <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Adhyaksha and Upadhyaksha of that Gram\r\nPanchayat is concerned.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13. ANSWER TO POINT NO.4: What Order?</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. The writ petition stands dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'af346fbfebc5bc3a99aef9380ae1c786.JPG', '171031cc7d346e36894b73dab588976e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-18', 1, '', '', '2023-07-17 13:54:11', '2023-07-18 06:16:57');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3212, 't0cONtKUtRo9OFb5Fh5B5lIkb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Adoption of child precedes proper ceremonies being performed. Mere adoption deed without proof of required ceremonies does not prove adoption. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>N.L Manjunatha Thr LRS and others Vs B.L. Ananda.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 443 of 2009 decided on 10 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Shivashankar Amarannavar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The appellants were defendants No.1 & 3 and\r\nrespondent No.1 was plaintiff in- O.S.No.153/1999. The\r\ndefendant No.2-N.L.Srikanta son of Late N.H. Lingappa has\r\nnot been arraigned as party in this second appeal. He was\r\narraigned as respondent No.1 in the first appeal. Plaintiff\r\nhad filed a suit for the relief of partition and separate\r\npossession of his 1/3rd share in all the suit schedule\r\nproperties by meets and bounds and mesne profits. The\r\nplaintiff and defendants No.1 & 2 are brothers and their\r\nfather died about six years prior to filing of suit leaving\r\nbehind plaintiff and defendants No.1 to 3 as legal heirs to\r\nsucceed his properties. The mother of the plaintiff and\r\ndefendants also died five years prior to the filing of the suit.\r\nIt is stated that during the life time of father they were\r\nliving together in joint family and after death of parents, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">defendant No.1 continued to be the manager of the joint\r\nfamily. It is stated that the suit schedule properties are\r\nancestral and joint family properties of the plaintiff and\r\ndefendants and they fallen to the share of father of plaintiff\r\nand defendants under partition and revenue records came\r\nto be changed in the name of defendant No.1 without\r\nconsent of the plaintiff. It is stated that defendant No.1 was\r\nmismanaging the joint family properties and therefore,\r\nplaintiff requested to allot his share. The defendants did not\r\ngive share to the plaintiff. Therefore, the plaintiff convened\r\nthe panchayat but nothing happened in the said panchayat.\r\nThe plaintiff got issued notice to the defendants dated\r\n28.08.1999, seeking his share as the defendants did not\r\ngive share. The plaintiff filed the suit for partition.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. Defendant No.1 in his Written Statement has\r\nadmitted the relationship but contended that the plaintiff\r\nhas been adopted by B.K.Nanjegowda who is the\r\nmatrimonial uncle i.e., brother of their mother as he had no\r\nissues. It is stated that the plaintiff left the company of his <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">natural parents when he was aged seven years and\r\nperformed all ceremonies of giving and taking by natural\r\nfather and to that of the adoptive father. The daughter\r\nJayalakshmi who is sister of plaintiff & defendant No.1 is\r\nalso necessary party and she is not impleaded and\r\ntherefore, the suit is of bad for non-joinder of necessary\r\nparties.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 5. It is stated that B.K.Najegowda, adoptive father\r\nof plaintiff has executed the Registered Will dated\r\n22.01.1983 bequeathing his properties to the plaintiff. After\r\nadoption plaintiff severed his relation with his natural\r\nparents and was enjoying the properties of his adoptive\r\nparents and living in the family of adoptive parents. It is\r\nstated that defendants No.1 & 2 are living separately and\r\nare enjoying their properties separately after partition.\r\nDefendant No.2 did not get the katha changed to his name\r\nas he was not in good terms with his wife. It is stated that\r\nitem No.4 of the suit schedule property was standing in the\r\nname of grandfather of the defendants. The Grandfather of</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the defendants had 3 brothers and therefore, father of the\r\ndefendants is entitled only for 1/3rd share in item No.4.\r\nItem No.5 of suit schedule property measuring 2 guntas\r\nsituated in Sy.No.39/1 was sold by the defendants father\r\nlong back and it is not a joint family property. So defendant\r\nNo.1 for the purpose of performing marriage of his daughter\r\nsold 20 guntas of land out of item Nos.1 to 3 of the suit\r\nschedule property. Sale deed came to be executed by\r\ndefendant No.1 in favour of Kempaiah on 28.07.1999 and it\r\nis binding on the interest of plaintiff. The said alienation is\r\nmade as manager of the family for legal necessity and\r\nbenefit of the family and therefore, it is binding on the\r\nplaintiff. The income of the suit schedule property was not\r\nsufficient. The father of the deceased has created\r\nusufructuary mortgage deed in respect of Sy.No.77/1, 2 & 3\r\nand another property measuring 12 guntas in favour of\r\nMudalagirigowda and Halagegowda for Rs.26,500/- &\r\nRs.12,500/-. The said properties are still in possession of\r\nthe said persons. Suit schedule item No.9 is also mortgaged\r\nby the father of the defendants in favour of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">S.Siddagangaiah for Rs.12,000/- with this he prayed to\r\ndismiss the suit.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. This second appeal came to be admitted to\r\nconsider the following substantial question of law.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i> Whether the courts below are justified in\r\nnot accepting the adoption merely because there\r\nis no document when performance as per custom\r\nis proved? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. Plaintiff, defendant No.1 and defendant No.2 are\r\nthe sons and defendant No.3 is the daughter of late\r\nLingappa and Smt. Sundaramma @ Lakshmamma. Plaintiff\r\nclaimed partition and separate possession of his share in\r\nthe properties of late Lingappa after his death. Defendant <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">No.1 has not disputed the relationship but contended that\r\nthe plaintiff has been adopted by Sri. Nanjegowda who is\r\nhis maternal uncle when he was aged 7 years. Admittedly\r\nthere is no document witnessing the said adoption deed.\r\nThe first appellate Court has held that in the absence of\r\nregistered adoption deed any amount of oral evidence will\r\nhot help the appellants – defendant Nos. 1 and 3 to prove\r\nadoption. Admittedly there is no adoption deed. Section 16\r\nof the Hindu Adoption and Maintenance Act, 1956 (for short\r\n`the Act’) reads as under:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“16. Presumption as to registered documents\r\nrelating to adoption. ? Whenever any document\r\nregistered under any law for the time being in\r\nforce is produced before any court purporting to\r\nrecord an adoption made and is signed by the\r\nperson giving and the person taking the child in\r\nadoption, the court shall presume that the\r\nadoption has been made in compliance with the\r\nprovisions of this Act unless and until it is\r\ndisproved.”</span><span style=\"font-size: 12pt;\"> </span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Section 16 of the Act provides presumption as to registered\r\ndocuments relating to adoption. Provisions of the Act does\r\nnot provide that the adoption is not valid in the absence of\r\nadoption deed. Section 16 of the Act only provides that if\r\nany document registered is produced before the Court\r\npurporting to record an adoption made and is signed by the\r\nperson giving and the person taking the child in adoption,\r\nthe Court shall presume that adoption has been made in\r\ncompliance with the provisions of the Act unless and until it\r\nis disproved.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Therefore, what is provided under Section 16 of the Act is\r\npresumption regarding the registered adoption deed that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the adoption has been made in compliance with the\r\nprovisions of the Act unless and until it is disproved.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. Parties are Hindus. Plaintiff was aged 7 years\r\nwhen his maternal uncle took him. Plaintiff was not married\r\nat that time. The only point that defendant No.1 has to\r\nestablish is that there were ceremonies of giving and taking\r\nthe adoptive child by his natural parents to the adoptive\r\nparents and there was consent of natural parents and wife\r\nof adoptive father. The only material witness who has been\r\nexamined to prove the adoption is D.W.3. D.W.3 in his chief\r\nexamination has only stated that in the house of one\r\nManjunath of Nagamangala in a function plaintiff – Ananda\r\nhas been taken by K.B. Nanjegowda @ Thammannagowda\r\nas his adoptive son and after the death of K.B. Nanjegowda\r\n@ Thammannagowda the plaintiff has performed the rituals\r\nas a son. At the time of adoption the plaintiff was aged 6 –\r\n7 years and he has attended the function wherein lunch was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">arranged. In the cross-examination D.W.3 has admitted\r\nthat as said Sri. Nanjegowda had no sons and he took the\r\nplaintiff and he fostered him. D.W.3 has not stated the\r\nceremony of giving and taking of the plaintiff by his natural\r\nfather and taking of the plaintiff by adoptive parents, i.e.\r\nSri. Nanjegowda and his wife. Admittedly said Sri.\r\nNanjegowda had two wives – Smt. Nanjamma and Smt.\r\nKallamma. Defendant No.1 who has been examined as\r\nD.W.1 and the witness D.W.3 have not stated that there\r\nwas consent of Smt. Sundaramma @ Lakshmamma –\r\nnatural mother of the plaintiff and Smt. Nanjamma and\r\nSmt. Kallamma – wives of Sri. Nanjegowda. Even there is\r\nno evidence regarding the presence of said natural mother\r\nand adoptive mothers at the time of adoption function.\r\nTherefore, the evidence on record does not establish the\r\nceremony of giving and taking and consent of the natural\r\nmother and adoptive mothers. More so in the Will (Ex.D.14)\r\nexecuted by Sri. Nanjegowda the plaintiff Ananda has been\r\ndescribed as faster son (¸ÁPÀÄ ªÀÄU À). If really Sri. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Nanjegowda had adopted the plaintiff – Ananda, he ought\r\nto have described in the Will (Ex.D.14) as his adoptive son.\r\nSaid statement of Sri. Nanjegowda in the Will (Ex.D.14) is\r\nrelevant under Section 32(5) of the Indian Evidence Act,\r\n1862. The Said provision reads thus :</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>\r\n“32. Cases in which statement of relevant fact by\r\nperson who is dead or cannot be found, etc., is\r\nrelevant. – Statements, written or verbal, of relevant facts\r\nmade by a person who is dead, or who cannot be found, or\r\nwho has become incapable of giving evidence, or whose\r\nattendance cannot be procured without an amount of delay\r\nor expense which, under the circumstances of the case,\r\nappears to the Court unreasonable, are themselves\r\nrelevant facts in the following cases:-“</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i> “ (1) xxxx\r\n (2) xxxx\r\n (3) xxxx\r\n (4) xxxx\r\n(5) or relates to existence of relationship.- When\r\nthe statement relates to the existence of any\r\nrelationship (by blood, marriage or adoption) between\r\npersons as to whose relationship (by blood, marriage\r\nor adoption) the person making the statement had\r\nspecial means of knowledge, and when the statement\r\nwas made before the question in dispute was raised.”</i></span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. Said statement of Sri. Nanjegowda made in the\r\nWill (Ex.D.14) executed by him disproves the existence of\r\nany relationship by blood or adoption. Said statement made\r\nby said Sri. Nanjegowda was made before the question in\r\ndispute was raised. Therefore, said statement made by Sri.\r\nNanjegowda in the Will (Ex.D.14) will clearly establish that\r\nthe plaintiff is not the adopted son of Sri. Nanjegowda and\r\nhe is the faster son of said Sri. Nanjegowda.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. It is the act of adoption and not the adoption\r\ndeed which confers the status of the adopted son. A\r\nperfectly valid adoption deed can be made without an\r\nadoption deed and any status which the adopted son gets\r\nby virtue of adoption is due to the proper ceremonies being\r\nperformed and not any deed passed as evidence of that\r\nadoption.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 18. Even Section 17 of the Registration Act, 1908\r\ndoes not provide for compulsory registration of an adoption\r\ndeed. Therefore adoption deed or registered document is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not must to prove the adoption. If conditions of valid\r\nadoptions as required under the Act are established it is\r\nsufficient to prove the adoption. In the case on hand there\r\nis no adoption deed. Even the evidence led has not\r\nestablished that ceremonies of giving of the adopted child\r\nby the natural father and taking of child by the adoptive\r\nfather. Even there is no whisper regarding the consent of\r\nthe natural mother and adoptive mothers either in the\r\npleadings or in the evidence. Therefore, the trial Court has\r\nrightly held that defendant No.1 has failed to prove the\r\nadoption of plaintiff by the said Sri. Nanjegowda. The first\r\nappellate Court is even though right in dismissing the\r\nappeal has erred in holding that the registered adoption\r\ndeed is a must for a valid adoption. Hence, the substantial\r\nquestion of law is answered accordingly and the appeal is\r\ndismissed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '5c82a041d18eee42d0e49a81bf5e519e.JPG', '3c437f70c6127a26104801eb03e8fef4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-18', 1, '', '', '2023-07-17 15:28:20', '2023-07-18 08:12:35'),
(3213, '8yGAk1KyNwEbp0xlyxBc5W0eT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Workmen’s Compensation Act. Total disablement under Section 2 (1) (I) is the ‘functional disability’ and not just the ‘physical disability’ which is the determining factor in assessing whether the claimant has incurred total disablement. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Indra Bai Vs Oriental Insurance Company Ltd and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4492 of 2023 decided on 17 July 2023<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice J.B. Pardiwala and Justice Manoj Mishra.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. This appeal assails the judgment and order of\r\nthe High Court of Madhya Pradesh at Jabalpur (in\r\nshort, “the High Court”), dated 31.10.2022, in Misc.\r\nAppeal No. 2369 of 2003, whereby the High Court\r\npartly allowed the appeal preferred by Oriental\r\nInsurance Company Ltd. (R-1 herein) against the\r\norder of the Workmen’s Compensation\r\nCommissioner/Labour Court, Jabalpur dated\r\n03.09.2003 passed in Case No.134/2002/WC/NonFatal and, thereby, reduced the compensation\r\nawarded to the appellant from Rs.3,74,364/- to\r\nRs.1,49,745.60/- by treating the permanent\r\ndisability of the appellant as 40% in place of 100 %.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. The appellant was employed as loading and\r\nunloading labourer with M/s. Simplex Concrete\r\nCompany (R-2 herein) for Truck No. MPF 7567,\r\nwhich was insured with R-1. On 03.10.2002, while\r\nthe appellant was loading poles/pillars in that truck,\r\nthe chain pulley broke and the poles fell on the left\r\narm of the appellant resulting in a compound\r\nfracture of her left arm as well as damage to the\r\nnerves etc. By claiming that due to the injury, the\r\nappellant has suffered permanent total disablement,\r\nas there was no grip left in her left arm,\r\ncompensation was sought from R-2. R-2 claimed\r\nitself to be insured with R-1 and requested the\r\nappellant to claim compensation from R-1. As no\r\ncompensation was paid, the appellant filed petition\r\nbefore the Workmen’s Compensation Commissioner\r\n(in short, “the Commissioner”) under the provisions\r\nof the Workmen’s Compensation Act, 1923, now\r\nknown as “the Employee’s Compensation Act, 1923”\r\n(in short, “the Act”).</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. The High Court did not disturb the finding of\r\nthe Commissioner with regard to the entitlement of\r\nthe appellant for compensation as also with regard to\r\nher age and monthly wages. However, the High Court\r\nassessed her permanent disability as 40% and\r\nthereby reduced the compensation awarded.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>25. “Total disablement” is defined by section\r\n2(1)(l) as follows:-</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n“ \"total disablement\" means such disablement,\r\nwhether of a temporary or permanent nature, as\r\nincapacitates a workman for all work which he was\r\ncapable of performing at the time of the accident\r\nresulting in such disablement:\r\n</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>Provided that permanent total disablement\r\nshall be deemed to result from every injury\r\nspecified in Part I of Schedule I or from any\r\ncombination of injuries specified in Part II thereof\r\nwhere the aggregate percentage of the loss of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">earning capacity, as specified in the said Part II\r\nagainst those injuries, amounts to one hundred per\r\ncent or more;”\r\n</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">26. In Pratap Narain Singh Deo v. Srinivas\r\nSabata and Another , decided by a four-Judge\r\nBench of this Court, the injured workman was a\r\ncarpenter by profession and by loss of left hand\r\nabove the elbow, he was evidently rendered unfit for\r\nthe work of carpentry and, therefore, the\r\nCommissioner awarded compensation by considering\r\npermanent disability as total i.e., 100%. The\r\nemployer raised an argument that the injury did not\r\nresult in permanent total disablement of the\r\nworkman and therefore, the Commissioner\r\ncommitted a gross error of law in taking a view that\r\nthere was total disablement. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In that context, this\r\nCourt held: -\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>“5. The expression \"total disablement\" has been\r\ndefined in section 2(1)(l) of the Act as follows:\r\n“ \"total disablement\" means such\r\ndisablement, whether of a temporary or\r\npermanent nature, as incapacitates a\r\nworkman for all work which he was capable\r\nof performing at the time of the accident\r\nresulting in such disablement.\"</i></span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>It has not been disputed before us that the injury\r\nwas of such a nature as to cause permanent\r\ndisablement to the respondent, and the question\r\nfor consideration is whether the disablement i<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ncapacitated the respondent for all work which he\r\nwas capable of performing at the time of the\r\naccident.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. In Chanappa Nagappa Muchalagoda\r\n(supra), the issue that came for consideration before\r\nthis Court was, whether a workman driver who, on\r\naccount of injury on his leg, could neither stand for a\r\nlong time nor fold his legs and was required to use a\r\nwalking stick, and could not lift heavy objects, would\r\nbe entitled for compensation by taking the disability\r\nas 100% or less, as per the medical opinion. Notably,\r\nin that case, the doctor had certified that the\r\nworkman had suffered 37% disability in his whole\r\nbody, and could not perform the work of a truck\r\ndriver any longer.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. In light of the aforesaid decisions and the\r\ndefinition of the term “total disablement” as provided\r\nby clause (l) of sub-section (1) of section 2 of the Act,\r\nit is the functional disability and not just the physical\r\ndisability which is the determining factor in assessing\r\nwhether the claimant (i.e., workman) has incurred\r\ntotal disablement. Thus, if the disablement incurred\r\nin an accident incapacitates a workman for all work\r\nwhich he was capable of performing at the time of the\r\naccident resulting in such disablement, the\r\ndisablement would be taken as total for the purposes\r\nof award of compensation under section 4(1)(b) of the\r\nAct regardless of the injury sustained being not one\r\nas specified in Part I of Schedule I of the Act. The\r\nproviso to clause (l) of sub-section (1) of Section 2 of\r\nthe Act does not dilute the import of the substantive\r\nclause. Rather, it adds to it by specifying categories\r\nwherein it shall be deemed that there is permanent\r\ntotal disablement.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. In Mohd. Nasir (supra), which has been\r\nrelied by the High Court, the workman was a cleaner.\r\nHe had suffered fracture in the leg. It was held that\r\nsuch injury would not amount to permanent loss of\r\nthe use of the entire leg. Hence, the disablement was\r\nfound partial and not total.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30. In Mubasir Ahmed (supra), another decision\r\nrelied by the High Court, the matter did not relate to\r\ninjuries specified in Schedule I and, as such, it was\r\nobserved that the case was covered by Section\r\n4(1)(c)(ii) of the Act. However, in that case, the Court\r\nat no stage examined whether the disablement in\r\nquestion had incapacitated the workman from\r\nperforming all work which he was capable of\r\nperforming at the time of the accident resulting in\r\nsuch disablement. In other words, the Court had no\r\noccasion to examine the true import of the term “total\r\ndisablement” as defined by Section 2(1)(l) of the Act.\r\nTherefore, in our view, the decision in Mubasir\r\nAhmed (supra) was wrongly applied by the High\r\nCourt.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. In the instant case, on the basis of medical\r\ncertificate provided by the Board, the Commissioner\r\nfound the appellant unfit for labour inasmuch as\r\nthere was complete loss of grip in appellant’s left <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">hand. Prior to the accident, the appellant worked as\r\na loading/unloading labourer. Even if she could use\r\nher right hand, the crux is whether she could be\r\nconsidered suitable for performing her task as a\r\nloading/unloading labourer. Such a task is ordinarily\r\nperformed by using both hands. There is no material\r\non record from which it could be inferred that the\r\nappellant was skilled to perform any kind of job by\r\nuse of one hand. It is also not a case where the\r\nappellant had the skill to perform her job by using\r\nmachines which the appellant could operate by using\r\none hand. In such circumstances, when the Board\r\nhad certified that the appellant was rendered unfit\r\nfor labour, there was no perversity in the decision of\r\nthe Commissioner in awarding compensation by\r\ntreating the disability as total on account of her\r\nfunctional disability. Consequently, no question of\r\nlaw, much less a substantial one, arose for\r\nconsideration by the High Court so as to allow the\r\nappeal in exercise of power under Section 30 of the\r\nAct. In our considered view, the High Court erred in\r\npartly setting aside the order of the Commissioner\r\nand assessing the disability as 40% instead of 100%,\r\nas assessed by the Commissioner.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. For the reasons above, the appeal is allowed.\r\nThe judgment and order of the High Court is set\r\naside. The order of the Commissioner is restored.\r\nThere is no order as to costs.</b></p>', '45c1fcd6bf91dcfc35b9f2a00515204d.jpeg', '525fb3b194bb3f2f3915f5f9e665425a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-19', 1, '', '', '2023-07-18 12:37:08', '2023-07-19 10:25:57'),
(3225, 'qIYG9MvnhrKGNPFi8Mwk3aLHN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Gram Swaraj and Panchayat Raj Act. Period of 30 months for Adhyaksha/Upadhyakshah has to be calculated from the date of result of the election. The delay in holding the first meeting would not add any period to their term. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Durgappa and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 201759 of 2023 decided on 3 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The first petitioner claims to be President of Bappur\r\nGram Panchayat and the second petitioner claims to\r\nbe President of Tidigol Gram Panchayat. The\r\npetitioners were elected to the respective Gram\r\nPanchayats in the elections conducted in the year\r\n2020 and the certificate of election came to be issued\r\non 30.12.2020.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The petitioners claim that though elections happened\r\nin the year 2020, on account of certain disputes as\r\nregards the inclusion of certain villages, the first\r\nmeeting of the Gram Panchayat could not be held\r\nand it is only pursuant to the orders passed by this\r\nCourt in W.P.No.200192/2021 that the first petitioner\r\nwas elected on 02.09.2021 and the second petitioner\r\nwas elected on 25.03.2022 as Presidents of the\r\nrespective Gram Panchayats. Now aggrieved by the\r\nnotification of the reservation for 2020 (second term)\r\nthe petitioners are before this Court contending that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the period of 30 months have not lapsed from they\r\nbeing elected and as such, it is contended that the\r\nelections are to be postponed until the period of\r\nthirty months is completed for both petitioner Nos.1\r\nand 2 from the respective dates of their elections. In\r\nthis regard, the petitioners also submitted\r\nrepresentations on 26.06.2023 at Annexures-G and\r\nG1 which have not been considered. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Learned counsel for the petitioners by referring to\r\nSection 46 of the Karnataka Gram Swaraj and\r\nPanchayat Raj Act, 1993 (for short, hereinafter\r\nreferred to as ‘the Act’) submits that the term of the\r\noffice of every Adhyaksha and every Upadhyaksha\r\nshall be for a period of 30 months. As such, his\r\nsubmission is that there being a guarantee for 30\r\nmonths, no elections can be held prior to expiry of 30\r\nmonths. Section 46 of the Act is reproduced\r\nhereunder for easy reference:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\"46. Term of office and conditions of service\r\nof Adhyaksha and Upadhyaksha.-</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>[(1) The term of office of every Adhyaksha and\r\nevery Upadhyaksha of the Grama Panchayat shall,\r\nsave as otherwise provided in this Act, be [thirty\r\nmonths] from the date of his election or till he\r\nceases to be a member Grama Panchayat,\r\nwhichever is earlier:]</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>[Provided that the term of office of Adhyaksha\r\nand Upadhyaksha of the Gram Panchayat who are\r\nin office on the date of commencement of the\r\nKarnataka Panchayat Raj (Amendment)\r\nOrdinance, 2002 shall be thirty-three months from\r\nthe date of their election and the term of office of\r\nAdhyaksha and Upadhyaksha of Gram Panchayat\r\nto be elected immediately before the expiry of the\r\nsaid period shall be remaining period of twentyseven months, provided that in either case in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">meantime they do not cease to be members of\r\nthe Gram Panchayat.]</span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(2) Salary and other conditions of service of\r\nAdhyaksha, [Upadhyaksha and Chairman\r\nStanding Committee] shall be as prescribed.\"</i></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n9. A perusal of the above provision would indicate that\r\nthe term of office of every Adhyaksha and every\r\nUpadhyaksha of the Gram Panchayat shall save as\r\notherwise provided in the Act be 30 months from the\r\ndate of election or till he ceases to be a member of\r\nthe Gram Panchayat whichever is earlier.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n10. What is relevant to be observed in terms of Section\r\n46 of the Act is the phrase \"save as otherwise\r\nprovided in this Act\". In terms of the Act, the period\r\nof a Gram Panchayat member is 5 years and in terms\r\nof Section 46 of the Act, every Gram Panchayat\r\nwithin one month from the date of publication of\r\nnames of elected members or immediately before the\r\nexpiry of the term of Adhyaksha and Upadhyaksha,\r\nchose two members as Adhyaksha and Upadhyaksha\r\nsubject to various criteria and conditions laid down </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">herein. Thus, a normal presumption under Section\r\n44 of the Act is that elections have to be held within\r\na period of one month and that the term of office of\r\nAdhyaksha and Upadhyaksha shall be 30 months\r\nthereafter. This 30 months is split up figure of 5\r\nyears term into two parts namely, the first term and\r\nsecond term.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. In my considered opinion, the election to the post of\r\nAdhyaksha or Upadhyaksha in the first meeting\r\nwould not be of much relevance insofar as the term\r\nof 30 months is concerned, since the said 30 months\r\nwould have to be considered from the date of\r\nelection results being declared. It is only a\r\nrequirement under Section 44 of the Act that the\r\nelections to the post be held. The period of 30\r\nmonths being calculated from the date of result of\r\nthe election, the delay if any, in holding the first\r\nmeeting would not add any period to a term of office\r\nof such elected Adhyaksha or Upadhyaksha. Thus, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the claim made by the petitioners in this particular\r\ncase that they were elected on 02.09.2021 and\r\n25.03.2022 respectively and as such, they need to\r\nbe provided period of 30 months thereafter is\r\nunsustainable. The period of 30 months would have\r\nto be calculated from 30.12.2020 when they were\r\nelected and the said period having come to an end,\r\nthe term of office also comes to an end and the next\r\nset of Adhyaksha and Upadhyaksha who take on\r\noffice, their term would come to an end within 30\r\nmonths thereafter thus on the expiry of 5 years.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. In that view of the matter, I do not find any merits in\r\nthe above petition. The petition stands dismissed</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'db2736d3b2a6add5bd75feeafc2c7f3c.JPG', '40f6000b24b304864de24de511748ea8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-21', 1, '', '', '2023-07-20 14:32:03', '2023-07-21 08:15:01');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3226, 'cRfqTqPHeoZPgT7Y3wZWsVYOa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Disaster Management Act, 2005. No prosecution can be launched for the offence under Section 51, (Punishment for obstruction, etc), without first issuing notice to the person against whom complaint is said to be made. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>D.K. Shivakumar Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 3432 of 2023 decided on 7 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court calling in question an order dated 25.01.2021 by which the concerned Court takes cognizance of the offences pursuant to PCR.No.1453/2021 and registers a C.C.No.3169/2022 for offences punishable under Section 51(b) of the Disaster Management Act, 2005 (\'Act\' for short) and Section 188 of the Indian Penal Code, 1860 (\'IPC\' for short)</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The brief facts that leads the petitioner to this Court in the subject petition as borne out from the pleadings are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner along with others are said to have taken out a protest with about 350 people against the BBMP regarding increase of property tax. The allegation is, it was taken, despite the guidelines of Covid-19 existing at that point in time. The crime comes to be registered on 04.01.2022 on the said allegation. The learned Magistrate by his order dated 25.01.2022, takes cognizance of the offence and registers a C.C.No.25317/2022 and issue summons to the accused. The petitioner is accused No.1. The taking of cognizance is what drives the petitioner to this Court in the subject petition. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The afore-narrated facts are not in dispute. The issue lies in a narrow compass, as to whether the learned Magistrate could have taken cognizance of the offence under Section 51(b) of the Act. To consider the said issue, it is germane to notice certain provisions of the Act. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 51 of the Act deals with punishment for obstruction and reads as follows:</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>(b) refuses to comply with any direction given by or on behalf of the Central Government or the State Government or the National Executive Committee or the State Executive Committee or the District Authority under this Act, shall on conviction be punishable with imprisonment for a term which may extend to one year or with fine, or with both, and if such obstruction or refusal to comply with directions results in loss of lives or imminent danger thereof, shall on conviction be punishable with imprisonment for a term which may extend to two years. notes on clauses Clauses 51 to 58 (Secs. 51 to 58) seeks to lay down what will constitute an offence in terms of obstruction of the functions under the Act, false claim for relief, misappropriation of relief material or funds, issuance of false warning, failure of an officer to perform the duty imposed on him under the Act without due permission or lawful excuse, or his connivance at contravention of the provisions of the Act. The clauses also provide for penalties for these offences.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Section 51(b) of the Act directs that whoever would refuse to comply with any direction given by or on behalf of the Government, as the case would be, become an offence under the Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Section 60 of the Act deals with cognizance for the offences and reads as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>(b) any person who has given notice of not less than thirty days in the manner prescribed, of the alleged offence and his intention to make a complaint to the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorised as aforesaid.\"</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Section 60(b) mandates that, if cognizance is to be taken for an offence punishable under Section 51 of the Act, a person who is arrayed as accused should have been given a notice not less than 30 days in the manner prescribed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">9. The prescription is in terms of the Rules. Rules, i.e. the Disaster Management (notice of alleged offence) Rules, 2007. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Rule mandates that a notice under Section 60(b) of the Act by any person should be issued on/of his intention to make a complaint, and that shall be delivered to the person against whom complaint is said to be made. The manner of issuance and delivery are narrated from (a) to (f). Therefore, there is prescription under the Rules as to the action to be taken under Section 60(b) of the Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. On the bedrock of the aforesaid mandate under the Act and the Rules, the case at hand requires to be noticed. The incident takes place on 04.01.2021, around 10.30 a.m. and the crime is registered on 04.01.2021 for the offence punishable under Section 51(b) of the Act and Section 188 of the IPC. The learned Magistrate takes cognizance of the offence on 25.01.2022.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The learned Magistrate prior to taking cognizance ought to have noticed the rigor of Section 60(b) as to whether a notice has been issued to the accused in terms of Rule 3 of the said Rules (supra). Ostensibly, the mandate under the Act or the Rules is not followed by the complainant and it is not even noticed by the learned Magistrate prior to the taking of cognizance. It is therefore, contrary to law.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. In the light of it being contrary to law, is resultantly rendered unsustainable. The unsustainability of it, would lead to its obliteration. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>I. Criminal petition is allowed. </b></p>', '3e57855e91e39c6a8c8229473873fefd.jpeg', 'deb35a454eb4283feee5ca600e52d6de.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-21', 1, '', '', '2023-07-20 15:07:26', '2023-07-21 03:13:12'),
(3215, 'yi8GLBqvJoSWP4rgDGBVSOH6Q', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sale cannot be set aside under Order XXI Rule 90 CPC unless there is material irregularity which has resulted substantial injury to the judgment-debtor. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>P. Prathiba Thr LRS and others Vs M/S. Avenue Super Chits (P) Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.F.A 834 of 2018 decided on 14 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This miscellaneous first appeal is filed challenging the\r\norder dated 16.12.2017 passed on I.A.No.3 filed under Order\r\nXXI Rule 90 read with Section 151 of CPC in Ex.No.1221/2012\r\non the file of the XLII Additional City Civil and Sessions Judge,\r\nBengaluru.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The factual matrix of the case of the appellants is\r\nthat the appellants have subscribed the chit for an amount of\r\nRs.6,00,000/- from respondent No.1-chit fund and had paid\r\ncertain installments in the chit subscribed and the appellants\r\nhave bid a chit for the amount of Rs.1,80,000/- and balance of\r\nRs.4,20,000/- was paid after deducting the foreman commission\r\nand subsequently the appellants have also paid the amount to\r\nrespondent No.1 and respondent No.1 under the Karnataka Chit\r\nFund Act had initiated proceedings before the arbitrator and\r\nrespondent No.1 has not been served with any notice and an\r\nexparte order came to be passed on 31.10.2008 against the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appellants directing them to pay a sum of Rs.5,10,000/- with\r\ninterest at 21% per annum along with penal interest at the rate\r\nof 3% and the said order was not communicated to the\r\nappellants at any point of time.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. It is also the case of the appellants that the\r\nrespondents have filed the execution petition in\r\nEx.No.1927/2009 and the same was dismissed for default and\r\nagain the respondents have filed the execution petition in\r\nEx.P.No.1221/2012 and claimed an amount of Rs.14,99,127/- as\r\non 28.05.2012. It is also the contention of the appellants that\r\nthey have entered their appearance and paid the amount of\r\nRs.25,000/- in cash before the Court and had also paid a sum of\r\nRs.1,00,000/- through a cheque bearing No.184130 dated\r\n27.02.2013 and the decree holders have filed the petition\r\ncalculating the wrong amount and erroneously claimed\r\nexorbitant amount from the appellants. It is also the contention\r\nof the appellants that the appellants were in turn about to pay\r\nthe amount to the respondents, at that time, the respondents\r\nobtained the order of attachment of the property bearing <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Sy.No.1 situated at Erigenahalli village, Kasaba Hobli,\r\nNelamangala taluk measuring 2 acres 27 guntas and had also\r\nauctioned the property in public without notice to the appellants\r\nand the sale was conducted at the spot without any paper\r\npublication and no reserve price was fixed by the Trial Court and\r\nin the spot auction, one Rajesh had bid for Rs.61,00,000/- but\r\nhe being the highest bidder, not deposited the statutory deposit\r\nin the spot and also failed to appear in the Court and\r\nsubsequently, without any further paper publication or\r\nnotification on re-sale as provided under Order 21 Rule 87 of\r\nCPC and without issuing fresh proclamation, the Court sale was\r\nconducted at 4.15 p.m. and the persons who were colluded with\r\nthe decree holder was present before the Court and the Court\r\nauction was conducted and the auction was closed at\r\nRs.63,25,000/-. Hence, the appellants had filed the application\r\nunder Order XXI Rule 90 read with Section 151 of CPC for\r\nsetting aside the said sale on the ground of irregularities in\r\nconducting public auction and the said application came to be\r\ndismissed without any reasoning and without considering the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">objections raised by the appellants. Hence, the present appeal\r\nis filed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. Having heard the learned counsel appearing for the\r\nrespective parties and also on perusal of the grounds urged in\r\nthe appeal memo as well as the impugned order, the question\r\narise for the consideration of this Court that: <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>Whether the Trial Court committed an error in\r\ndismissing the application filed under Order XXI Rule\r\n90 read with Section 151 of CPC and whether it\r\nrequires interference for non-compliance of Order\r\nXXI Rule 54(2) of CPC along with Order XXI Rule\r\n67(1) of CPC? </i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. The counsel for the appellants brought to notice of\r\nthis Court Section 71 of the Chit Funds Act, 1982 wherein it is\r\nclear that every order passed by the Registrar or the nominee\r\nunder Section 68 or Section 69 and every order passed by the\r\nState Government in appeal under Section 70 for payment of\r\nany money shall, if not carried out on a certificate issued by the\r\nRegistrar, be deemed to be a decree of a civil Court, and shall be\r\nexecuted in the same manner as a decree of such Court, or be\r\nexecuted in accordance with the provisions of any law for the\r\ntime being in force for the recovery of amounts as arrears of\r\nland revenue. Provided that no application for execution under\r\nclause (b) shall be made after expiry of three years from the\r\ndate fixed in the order, and if no such date is fixed, from the\r\ndate of the order. Though the counsel would vehemently contend\r\nthat no such certificate was issued but the said certificate was\r\nalso issued by the Registrar and hence, it is clear that it is a\r\ndecree of a civil Court and shall be executed in the same manner\r\nas a decree of such Court and hence, Section 71(a) is applicable\r\nand not Section 71(b) as contended by the counsel for the\r\nappellants. Hence, the very contention that time period is within <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">hree years and execution ought to have been filed within three\r\nyears cannot be accepted. Once a certificate is issued, it is\r\ndeems to be a decree of civil Court and hence, execution petition\r\ncan be filed within 12 years of the decree and validity of the\r\ndecree is also if it is a decree passed by the civil Court, the\r\nperiod of limitation is 12 years and not three years as contended\r\nand Section 71(b) is not applicable as contended by the counsel\r\nfor the appellants.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. The other contention that no reserve price is fixed.\r\nOn perusal of the auction conducted at the spot, it is very clearly\r\nmentioned that the Government rate is Rs.55,00,000/- and the\r\ndocument also very clear that Government reserve price is fixed\r\nas Rs.55,00,000/- and the spot sale was conducted and highest\r\nbidder auctioned for Rs.61,00,000/- but he did not come forward\r\nto pay the amount and when the Court auction was conducted,\r\nthe sale was conducted for higher price of Rs.63,25,000/- and\r\nthe amount was also deposited. It is also contention of the\r\nappellants’ counsel that there is an irregularity and no wide\r\npublication was given and if publication was given, it would have <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">fetched more amount. The judgment relied upon by the counsel\r\nfor the respondents is CHILAMURTI’s case wherein the Apex\r\nCourt in paragraph 14 discussed with regard to Order XXI Rule\r\n90 referring several judgments of the Apex Court of the year AIR\r\n1964 SC 1300, (2006) 4 SCC 476 and also 1991 Supp (2) SCC\r\n691 and extracted the paragraphs 12, 13 and 14 of the said\r\njudgments and other judgment reported in (2000) 3 SCC 87\r\nwherein categorically held that there is no material irregularity in\r\npublishing or conducting the sale. There was sufficient\r\ncompliance with Order XXI Rule 67(1) read with Order XXI Rule\r\n54(2). It is also held that no doubt, the Trial Court has said that\r\nthe sale should be given wide publicity but that does not\r\nnecessarily mean by publication in the newspapers. Unless,\r\nclearly provide that if the sale is to be advertised in the local\r\nnewspaper under the provisions of Order XXI Rule 67 and there\r\nmust be specific direction of the Court to that effect. No such\r\ndirection is found in the case on hand also and proclamation was\r\nissued. When such being the case, the very contention of the\r\ncounsel that Order XXI Rule 67 and Rule 54(2) has not been\r\ncomplied, cannot be accepted. The Apex Court also in detail </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">discussed by extracting Order XXI Rule 90 as well as 54(2).\r\nWhen the spot sale and Court auction was conducted and also in\r\nthe spot sale, highest bid was Rs.61,00,000/- and in the Court\r\nsale, it was Rs.63,25,000/- and accordingly, the amount was\r\ndeposited, the very contention that there is material irregularity,\r\ncannot be accepted. The judgment is also clear that unless\r\nthere is material irregularity, which has resulted in causing\r\nsubstantial injury to the judgment-debtor in conducting the sale,\r\nthe question of interference by setting aside the sale which was\r\nconducted by conducting spot sale as well as Court sale does not\r\narise. It is also observed in the judgment that when the sale\r\nwas so conducted, could be set aside under Order XXI Rule\r\n90(2) of the Code, when it has resulted in causing substantial\r\ninjury to the judgment-debtor hence, I do not find any such\r\ncircumstances warranted in the case on hand.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. The other contention of the appellants’ counsel that\r\npublic auction was conducted without the proper publication.\r\nHaving perused the material on record it is not in dispute that\r\nthere was an award and though contend that the same was\r\npassed exparte, the same was not challenged and apart from\r\nthat it is the contention of the counsel for the respondents that\r\nsix post dated cheques were given and the same were\r\ndishonoured and thereafter the arrest warrant was issued and he\r\nwas arrested and brought before the Court and when he was\r\nbrought before the Court he only furnished the details of the\r\nproperty and the said property was attached and the same was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">auctioned only after attaching the property. The appellants also\r\neven not challenged the attachment and only after conducting\r\nthe auction come up with an application under Order XXI Rule 90\r\non the ground that there is material irregularity but, no such\r\nirregularity is also placed before the Trial Court. The Trial Court\r\nalso taken note of the grounds which have been urged before\r\ndismissing the application. The Trial Court even extracted the\r\nprovisions of Order XXI Rule 90 of CPC and also taken note of\r\nthe proviso of sub-rule (2) of Rule 90 of CPC while considering\r\nthe application and also in paragraphs 9, 10 and 11, the Trial\r\nCourt taken note of the scope of Order XXI Rule 90 and so also\r\nOrder XXI Rule 54 for attachment of the property was considered\r\nand also taken note of the fact that judgment-debtor also failed\r\nto file any application to set aside the order of attachment and\r\nalso taken note of the fact that on 01.04.2017, at the instance\r\nof the decree holder, the Trial Court has issued the sale warrant\r\nand sale proclamation and fixed the date for spot sale and also\r\nCourt sale and bidders were also auctioned the property. When\r\nsuch being the case, the question of irregularity does not arise\r\nand nothing is found on record to show that fraud was </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">committed and I have already pointed out that base price was\r\nfixed as Rs.55,00,000/- and thereafter auction was conducted\r\nand the Trial Court also taken note of the fact that the land value\r\nas on the sale was Rs.16,00,000/- per acre and auction amount\r\nis more than that. Hence, I do not find any merit in the appeal\r\nto set aside the order dated 16.12.2017 passed by the Trial\r\nCourt on I.A.No.3 filed under Order XXI Rule 90 read with\r\nSection 151 of CPC thus, I answer the point as negative.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The appeal is dismissed</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '442ede648789acff7ffc36dea3b93363.JPG', 'b355f7bd8b2cab9c3245e6629535d6a5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-19', 1, '', '', '2023-07-18 13:41:58', '2023-07-19 08:08:27');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3216, 'ViKRSuf6dc5AJg77rph6Xeyex', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Proportionality of punishment for Contempt of Court under Order XXXIX Rule 2A, CPC. Order directing civil imprisonment should not be passed as a matter of course. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>T. Sudhakar Pai and others Vs M/S Manipal Academy of Higher Education and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Commercial Appeal 404 of 2022 decided on 17 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Alok Aradhe and Justice Anant Ramanath Hegde.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This appeal under Section 13(1)(A) of the\r\nCommercial Courts Act, 2015 read with Order XLIII\r\nRule 1(r) of the Code of Civil Procedure, 1908 (hereinafter\r\nreferred to as the \'Code\' for short) is filed against the order\r\ndated 28.09.2022 passed by X Additional District Judge,\r\nBengaluru Rural District in Commercial Misc. No.246/2021.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">1.1 In the aforesaid order, the Commercial Court,\r\nexercising powers under Order XXXIX Rule 2(A) of the\r\nCode, held that the appellants are guilty of disobedience of\r\nthe order of temporary injunction, dated 21.02.2019.\r\nConsequently, appellant No.1 is sentenced to undergo civil\r\nimprisonment for three months and held liable to pay\r\nRs.1,00,000/- as compensation to the plaintiffs. Further,\r\nappellants No.2 and 3 and respondent No.5 of this appeal,\r\n(respondent No.3 in Misc. No.246/2021) are sentenced to\r\nundergo civil imprisonment for one month and each of\r\nthem is held liable to pay a compensation of Rs.50,000/-, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to each of the plaintiffs. Further, the plaintiffs are\r\npermitted to apply to attach the movable and immovable\r\nproperties of the contemnors to recover the compensation\r\namount, if not paid by the appellants.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. O.S. No.1244/2019 is filed by the Manipal\r\nAcademy of Higher Education (Trust) and the Manipal\r\nAcademy of Higher Education (Deemed University) before\r\nthe City Civil Court at Bengaluru, seeking the relief of\r\npermanent injunction, to restrain the defendants from\r\nusing certain trade names/trademarks individually, or in\r\nconjunction with the trade name of defendant No.1.\r\nInitially, the suit is filed against three defendants viz.,\r\nManipal International School, Manipal\r\nE-commerce Limited and T. Sudhakar Pai.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. Later, on 02.03.2019, the case is ordered to be\r\nregistered as Commercial Suit. On 11.03.2019, the abovementioned suit is registered as Commercial Suit in\r\nO.S. No.15/2019. Defendant No.3 appeared on 03.04.2019\r\nand contested the suit by filing a written statement and\r\nfiled an application under Order XXXIX Rule 4 to vacate the\r\ninterim order dated 21.02.2019.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. On 05.04.2019, respondents No.1 and 2 of this\r\nappeal moved the Commercial Court under Order XXXIX\r\nRule 2A of the Code, alleging willful disobedience of the\r\ninterim order dated 21.02.2019, by the appellants. Said\r\napplication is registered as Com. Misc. No.9/2019.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n7. On 04.11.2020, the plaintiffs’ application dated\r\n7.6.2019, under Order I Rule 10 of the Code is allowed and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Manipal Academy of Health and Education, (Defendant\r\nNo.4) and Kurl–On Ltd. (Defendant No.5) are impleaded in\r\nthe suit.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>8. By order dated 27.5.2021, the matter is\r\ntransferred to Commercial Court, Bengaluru Rural and the\r\nsuit is renumbered as O.S. No.960/2021. The application\r\nunder Order XXXIX Rule 2A of the Code which was earlier\r\nregistered as Com. Misc. No.9/2019 is renumbered as\r\nMisc. Application No.246/2021. Appellants of this appeal\r\nfiled a statement of objection in Misc. 246/2021, and\r\ncontested the allegations of willful disobedience.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. After hearing the parties to the suit, vide order\r\ndated 22.4.2022, the application to vacate the interim\r\norder was rejected and the ex parte order of temporary\r\ninjunction was made absolute. Later, in terms of the\r\nimpugned order dated 28.9.2022, the Commercial Court\r\nheld that appellant No.1 (defendant No.3 in the suit) and\r\nappellants No. 2 and 3 and respondent No.5 of this appeal </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(who are not parties to the suit but parties to Misc.\r\nNo.246/2021) are guilty of willful disobedience of the ex\r\nparte interim order dated 21.02.2019. This appeal arises\r\nout of the said order dated 28.09.2022.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. We have considered the contentions raised at\r\nthe bar and perused the records and judgments cited. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(a) Whether the appellants establish that the acts\r\ncomplained do not amount to disobedience or breach of\r\nthe interim order dated 21.02.2019, in the light of\r\npartial/limited ex parte interim relief granted by the\r\nCommercial Court?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(b) Whether the appellants establish that the acts\r\ncomplained are the acts committed by the Company\r\nagainst which there was no ex parte order of injunction, as such, there is no disobedience or breach of the order of\r\ninjunction by the appellants?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(c) Whether the respondents prove that appellants\r\nhave willfully disobeyed the interim order dated\r\n21.02.2019?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(d) Whether the Commercial Court justified in\r\nordering civil imprisonment, payment of compensation and\r\nattachment of property if the compensation is not paid? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>24. After considering the aforementioned\r\napplications, the Court on 21.02.2019, passed an order\r\nwhich reads as under.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\"Defendants are hereby restrained by an order\r\nof ex parte injunction restraining them from\r\ninfringing the plaintiffs registered trade mark\r\nby using identical trade mark like \"MAHE\" or </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\"Manipal groups\" in conjunction with any\r\ntrademark, service mark and\r\nadvertisement for their services or\r\nbusiness papers\".</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. It is forthcoming from\r\nEx. P26 and P37 that the trade names/trademarks namely\r\nMAHE and MANIPAL GROUP were used by a company by\r\nthe name MANIPAL ACADEMY OF HEALTH AND\r\nEDUCATION, the fourth defendant which was impleaded\r\nvide order dated 04.11.2020 (Hereinafter referred to as the\r\n‘Company’ for short). The prayer in the plaint as well as\r\nthe prayer in the application is to restrain the defendants\r\nfrom using several alleged trade names/trademarks either\r\nsingularly or in conjunction with some other names. In\r\nparagraph No. 31, the plaintiffs claim to be the registered\r\nholder of 9 specific trade names/trademarks. Though the\r\nprayer is made in respect of several trade names/\r\ntrademarks, the ex parte order is confined to the use of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">MAHE\" or \"Manipal groups\" not only individually but also\r\nin conjunction with any trademark, service mark and\r\nadvertisement for their services or business papers\".</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. Considering the contentions in the pleading,\r\nand the ex parte order granted by the Court, it has to be\r\nconcluded that the use of the trade name/trademarks\r\n\"MAHE\" or \"Manipal groups\" individually or in conjunction\r\nwith any other business names amounts to disobedience or\r\nbreach of the ex parte order of temporary injunction.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. Now the question is whether the appellants\r\ndisobeyed or committed a breach of the interim order\r\ndated 21.02.2019 by the appellants?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. To answer the above question, the Court has to\r\nconsider the following:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(a) whether the appellants were aware of\r\nthe ex parte interim order;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(b) whether the appellants were bound by\r\nthe ex parte interim order and;\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Discussion on the question (a):\r\n29. So far as question (a) is concerned the\r\nappellants in their statement of objection before the\r\nCommercial Court did not raise a defence that they were\r\nnot served with a copy of the interim order. The evidence\r\non record (discussed infra) also reveals that the appellants\r\nwere aware of the ex parte Court order. Hence the\r\nquestion (a) referred to above is answered in the\r\naffirmative.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\nDiscussion on the question (b)\r\n30. “Whether the appellants are bound by the\r\norder”? <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>35. In the case of SITA RAM VS BALBIR (2017)\r\n2 SCC 456 the Hon’ble Apex Court held that the Courts\r\nhave the power to punish the person who willfully violates\r\nthe Court order despite being aware of the court order,\r\nthough such a person is not a party to the proceeding\r\nwhich passed the order. In the instant case, it is not the\r\ncase of the appellants that they were not aware of the\r\norder of injunction. In the cross-examination (referred\r\ninfra) the appellants admit that they were served with a\r\ncopy of the order or were aware of the Court order at least.\r\nHence this Court is of the view the order dated 21.02.2019\r\nbinds all the appellants and accordingly the question (b)\r\nreferred to above is answered in the affirmative. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36. Now the question is whether the appellants\r\nhave disobeyed the interim order and if so whether\r\ndisobedience or the breach is willful disobedience of the\r\norder. This question is to be considered in the light of the\r\ncontention that the prohibited use of trade name/trade <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">mark is said to be used by the Company or the franchisee,\r\n(as per the version of the appellants) which were not\r\nparties to the suit when the ex parte order was passed.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>37. To answer the question, the following points\r\nare required to be considered.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n(a) Whether appellant No.1 participated in the\r\ndecision-making process of the Company which authorized\r\nthe use of the trade mark/trade name covered by the\r\ninterim order.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(b) Whether appellants No. 2 and 3 aided and\r\nabetted appellant No.1 and the Company in using the\r\ntrade mark/trade name covered by the interim order.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>41. There is nothing on record to show that\r\nappellant No.1 distanced himself from the decision-making\r\nprocess when the decisions are taken to allow the third\r\nparties/franchisees to use the trade name/trade mark\r\ncovered by the interim order. It is his stand that he is\r\narrayed in the suit in his individual capacity and not as a\r\nDirector of the Company. It is contended that appellant <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">No.1 is not prevented from participating in the proceedings\r\nof the Company as a director, and any decision taken by\r\nthe Company where he has participated as a director\r\nshould be treated as a decision/act of the Company, and\r\nnot the decision/act of the appellant No 1. This contention\r\ndoes not merit elaborate consideration as it runs contrary\r\nto the underlying spirit and object of Order XXXIX Rule 2 A\r\nof the Code, discussed supra, which empowers the Court\r\nto proceed against any “person” who violates the order of\r\nthe Court. If such a contention is accepted, it defeats the\r\nsalutary object behind Order XXXIX Rule 2A of the Code.\r\nHence appellant No.1 is guilty of disobedience or breach of\r\nthe interim order of injunction.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">44. Hence the appellants are also guilty of\r\ndisobedience of the interim order dated 21.02.2019.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>51. Thus, from the evidence of RW-3/the appellant\r\nNo.1, it is explicit that he was aware of the interim order\r\npassed against him in the year 2019. And RW-3 in his\r\ncapacity as the director of the Company has consciously\r\nand deliberately allowed the franchisee to use the name\r\nMANIPAL GROUP and MAHE. Appellant No. 1 now seeks to\r\ntake shelter under the banner of the Company in which he\r\nis one of the directors and played a decisive role to permit\r\nthe use of the injuncted name/trade mark. It is urged that\r\nthe Company has issued authorisation to the franchisee to\r\nuse the name MANIPAL GROUP and he has not authorised\r\nin his capacity as defendant No.3. However, what is to be\r\nnoticed is that the 4th defendant is only a Company and it <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is managed by the board of directors. The evidence also\r\ndiscloses the fact that the wife and two daughters of\r\nappellant No.1 are the remaining directors of the Company\r\nalong with appellant No.1.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>54. It is also evident from Exs.P.39 and 40 that\r\ntrademarks MAHE and MANIPAL GROUP are used by\r\nappellant No.3. These are the publications by MANIPAL\r\nINTERNATIONAL SCHOOL and the publication of these\r\ndocuments which contain the expression MAHE and\r\nMANIPAL GROUP are not disputed by the appellants.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 55. Under these circumstances, there is no\r\ndifficulty in holding that the MAHE and MANIPAL GROUP, the\r\nexpressions which are covered in the interim order are used\r\nby the appellants even after service of notice of the interim\r\norder. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>62. As already noticed, the Commercial Court has\r\npassed an order for payment of compensation. The order\r\nalso permitted the plaintiffs to apply for the sale of the\r\nattached property if compensation is not paid. In addition,\r\ncivil imprisonment is also ordered. To decide the question\r\non the punishment and its proportionality the Court has to\r\nconsider Order XXXIX Rule 2A of the Code<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>64. As can be noticed, the provision does not\r\nempower the Court to award compensation by attachment\r\nand sale of the property, immediately after pronouncing\r\nthe verdict of guilty. To sell the property attached, the\r\nCourt has to wait till the expiry of the period of\r\nattachment, specified in the order which can be one year,\r\nat the maximum. The property attached can be sold if the\r\ndisobedience or the breach complained of continues at the\r\nend of the period of attachment. It is again noticed, even if\r\nthe breach continues, the Court is not bound to sell the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">property, but at its discretion may order the sale of the\r\nproperty attached and pay compensation to the injured.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>66. In this case, payment of compensation is\r\nordered on the day of pronouncing the verdict of guilty, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which is impermissible under Order XXXIX Rule 2A of the\r\nCode. The opportunity for the contemnors to make amends\r\nfor their acts and omissions is denied. Instead of ordering\r\nattachment to secure possible order for payment of\r\ncompensation, in the event of disobedience or breach\r\ncontinuing at the end of the tenure of the order of\r\nattachment, the Court straight away ordered payment of\r\ncompensation and permitted the plaintiffs to apply for\r\nattaching the property of the contemnors if payment is not\r\nmade. By doing so, the Commercial Court put the cart\r\nbefore the horse which is impermissible. Hence the order\r\nfor payment of compensation has to be set aside as the\r\nsame is in ultra vires the provision of Order XXXIX Rule 2A\r\nof the Code.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>67. Now we may advert to the question, whether\r\nthe Commercial Court is justified in directing appellant\r\nNo.1 to undergo civil imprisonment of 3 months and civil <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">imprisonment of one month each to the appellants and\r\nrespondent No.3 in Commercial Misc. No.246/2021</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>70. In terms of the law laid down by the Apex\r\nCourt in SAMEE KHAN vs. BINDU KHAN reported in\r\n(1999) 7 SCC 59 it is held that the Court has the power\r\nto order attachment as well as civil imprisonment\r\nsimultaneously. From the very language employed in the\r\nprovision, it is apparent that the discretion lies with the\r\nCourt to impose either of the two punishments as well.\r\nHowever, the discretion is not absolute or unfettered.\r\nEvery wide power conferred on the Courts has inherent\r\nlimitations and inbuilt checks and balance mechanisms.\r\nLikewise, the discretion under Order XXXIX Rule 2A has its\r\ninherent limitations as the power to order civil\r\nimprisonment under Order XXXIX Rule 2A curtails an\r\nindividual\'s fundamental right, albeit through a process of\r\nlaw.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>74.4. In the same judgment in PATEL\r\nRAJANIKANT DHULABHAI supra in paragraph No. 62,\r\nthe Apex Court has extracted the observation of Lord\r\nDiplock in the celebrated decision of Attorney\r\nGeneral v. Times Newspaper Ltd. [(1974) AC 273 : (1973)\r\n3 All ER 54 : (1973) 3 WLR 298 (HL)] which reads as\r\nunder.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“There is an element of public policy in\r\npunishing civil contempt since the\r\nadministration of justice would be undermined\r\nif the order of any court of law could be\r\ndisregarded with impunity.”</i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>74.7. In the case of PATEL RAJNIKATH supra the\r\nApex Court imposed civil imprisonment for 15 days. In the\r\nsaid case, the contemnor violated the interim order which\r\nprohibited him from alienating the property. In the instant\r\ncase, the contemnors used the injuncted trade name/trade\r\nmark. Having due regard to the underlying philosophy of\r\nOrder XXXIX Rule 2 A of the Code, discussed supra, and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">having regard to the age of appellant No.1, who is 63 years\r\n(as per the age mentioned in the affidavit dated 8.3.2022),\r\nthis Court is of the view that three months civil\r\nimprisonment, imposed to appellant No.1, which is the\r\nmaximum period allowed under Order XXXIX Rule 2A of the\r\nCode is on the higher side. In the facts and circumstances of\r\nthe case discussed above, this Court is of the view that the\r\nends of justice would be met if appellant No.1 is directed to\r\nundergo civil imprisonment of 15 days.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>74.8. As far as appellants No.2 and 3 are concerned,\r\nit has to be noticed that their acts have to be analysed in a\r\ndifferent yardstick given the fact that they were not parties\r\nto the proceeding when an interim order was passed.\r\nAppellant No.2 claims to be the Chief Executive Officer of\r\nthe MAHE, and Appellant No.3 claims to be the Vice\r\nPresident of MAHE. Considering their positions in the\r\ninstitution it can be held that they are not part of the\r\ndecision-making process of the Company. Nevertheless, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">they are very much aware that the order is passed against\r\nappellant No.1 restraining him from using the trade mark\r\nMAHE and MANIPAL GROUP and they were bound to\r\nrespect the order of the Court. This being the position, the\r\nCourt has to consider whether the act of appellants 2 and\r\n3 in aiding and abetting the act of appellant no. 1 amounts\r\nto wilful disobedience of the Court Order. On analysis of\r\nevidence, it has to be held that appellants no. 2 and 3,\r\nthough on their own accord did not disobey the order,\r\ncertainly aided and abetted the appellant No.1, seemingly\r\nunder the directions of appellant No. 1 who held a\r\ndominating position.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>74.9. However, taking into consideration the\r\nprecarious position of appellants No.2 and 3, where\r\nappellant No.1 instructed them to continue to use the\r\nprohibited trade mark, and having regard to the\r\nparameters discussed in paragraph No.71, and keeping\r\nin mind that the primary underlying object of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">provision preventive and curative, this Court is of the\r\nview that the order of civil imprisonment against the\r\nappellants No. 2 and 3 is disproportionate and unjustified\r\nand has to be set aside.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>74.10. Since the appellants are guilty of\r\ndisobedience of the order passed by the Court, the\r\nCommercial Court, on securing the details of the\r\nproperties of the appellants, shall attach the properties\r\n(to the extent required to realise the compensation) for a\r\nperiod of six months, and in case, the breach or\r\ndisobedience continues at the expiry of six months, then\r\nthe attached properties of the appellants, be sold and\r\nthe compensation of Rs.1,00,000/- be paid to each of\r\nthe plaintiffs from the sale of the properties of the\r\nappellant No.1, and Rs.50,000/- be paid to each of the\r\nplaintiffs from the sale of properties of each of the\r\nappellants No. 2 and 3. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>75. By way of a separate order, this Court has\r\nallowed the application at I.A.No.2/2023 seeking\r\npermission to raise additional grounds is allowed and\r\nthose grounds are considered in this order. By way of a\r\nseparate order, the application at I.A.No.3/2022 seeking\r\nthe production of additional documents is rejected.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(a) The impugned order dated 28.09.2022\r\npassed by X Additional District and Sessions\r\nJudge, Bengaluru Rural district, Bengaluru\r\nin Commercial Misc. No.246/2021 directing\r\nCivil imprisonment of appellants No.2, 3 is\r\nset aside. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(d) In case, the breach or disobedience\r\ncontinues at the expiry of six months, then\r\nthe attached properties of the appellants be\r\nsold and compensation of Rs.1,00,000/- be\r\npaid to each of the plaintiffs from the sale of\r\nthe properties of the appellant No.1, and\r\nRs.50,000/- be paid to each of the plaintiffs\r\nfrom the sale of properties of each of the\r\nappellants No.2 and 3. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(f) Accordingly, the appeal is allowed in part as\r\nindicated above.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '491c7c07556723baa58b6f768ab66065.jpeg', '217a54bf25349ac1d0c508f5d8f06362.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-19', 1, '', '', '2023-07-18 14:14:19', '2023-07-19 03:24:03');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3217, 'O214kwsjoq1U7XSWicKsJB0xq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Grant of temporary injunction in suit based on defamation. Issue regarding territorial jurisdiction goes to the root of the matter and the Court must consider this issue before considering other aspects. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Arnaud Descamps Vs Onmobile Global Limited.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.F.A 4019 of 2022 decided on 14 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. This miscellaneous first appeal is filed challenging\r\nthe order dated 17.02.2022 passed on I.A.No.1 in\r\nO.S.No.2751/2020 on the file of the LVIII Additional City Civil\r\nand Sessions Judge, Bengaluru City (CCH No.59), allowing I.A.\r\nNo.1 filed under order 39, Rule 1 and 2 read with Section 151 of\r\nC.P.C. restraining the defendant, including his representatives,\r\nhis agents from making any statement, remarks and/or\r\nimputations against the plaintiff and its management in any\r\nsocial media, public forum and before any other entities, until\r\ndisposal of the suit</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The factual matrix of the case of the plaintiff before\r\nthe Trial Court is that the defendant is an en-employee of the\r\nplaintiff company and was employed with the plaintiff from\r\n09.01.2007 till 12.04.2013. The defendant during his\r\nemployment with the plaintiff failed to perform his duties\r\npromptly, which left the plaintiff company with no option but to\r\nlegally terminate the defendant with effect from 12.04.2013. In\r\nthe year 2015, the defendant filed a case before the Labour\r\nCourt, Paris against the plaintiff claiming damages for restraining\r\nthe defendant from exercising his options under Employee Stock\r\nOption Plan (‘ESOP’ for short). In this regard, the French Labour\r\nCourt rightly dismissed the claim of the defendant against the\r\nplaintiff dated 18.10.2018. It is also contended that the\r\ndefendant had filed a revision petition before the Court of appeal\r\nchallenging the findings and the same was also dismissed vide\r\norder dated 12.09.2019. The defendant also made desperate\r\nattempts to initiate false and frivolous proceedings against the\r\nplaintiff by submitting a Whistleblower complaint before the\r\nWhistleblower Committee of the plaintiff company on the same\r\ngrounds and the Committee considering that the said concern is </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">a subjudice matter being considered and await orders of the\r\nLabour Court, Paris, directed the defendant to act in accordance\r\nwith the observations and findings of the said Labour Court.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n4. The defendant in pursuit to accomplish his false\r\nallegations against the plaintiff, also filed a complaint before the\r\nMinistry of Corporate Affairs (‘MCA’ for short) on 06.11.2018 to\r\ninitiate statutory proceedings against the plaintiff company,\r\nwhich was finally closed vide e-mail dated 20th February, 2020,\r\nconsidering that there were no merits in the allegations made by\r\nthe defendant. It is also contended that the defendant has time\r\nand again with malafide intention filed several complaints before\r\nthe SEBI and MCA inter alia, making baseless and frivolous\r\nallegations using defamatory and derogatory remarks such as\r\nfraudulent and lying, misleading, making false statements, do\r\nnot adhere to the code of conduct, stealing shares, furnishing\r\nfalse information to SEBI to cover-up fraud, failures in\r\ngovernance and specifying incorrect number of outstanding\r\nshares against the plaintiff company and its management.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The defendant also made similar imputations against\r\nthe plaintiff addressed to Karvy Investor Services Limited\r\n(‘Karvy’ for short) and ESOP Direct, being private entitles, with\r\nmalafide intention to coerce the plaintiff company to adhere to\r\nhis illegal demands. The defendant is also constantly attempting\r\nto mislead the authorities and several other service providers of\r\nthe plaintiff, thereby causing irreparable loss of business and\r\nadversely affecting the reputation of the plaintiff before the\r\nsociety at large. Hence, the plaintiff filed the suit for declaration\r\nand inter alia sought for the relief of temporary injunction and\r\nbefore filing the suit, the plaintiff also issued legal notice to the\r\ndefendant to withdraw all the complaints filed before the SEBI,\r\nMCA and all other statutory authorities and also to withdraw the\r\ndefamatory imputations and tender unconditional apology and\r\nsince, he did not comply with the same, the plaintiff filed the\r\nsuit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. Having heard the respective counsel, the pleadings\r\nof the parties and also the grounds urged in the appeal, the\r\npoints that would arise for consideration of this Court are:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(1) Whether the Trial Court has committed an\r\nerror in allowing the application in I.A.No.1 in\r\nO.S.No.2751/2020 filed by the plaintiff under\r\nOrder 39, Rule 1 and 2 read with Section 151\r\nof C.P.C.?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(2) What order? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Point No.(1)</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">28. It is also important to note that, no doubt, the Trial\r\nCourt has discussed with regard to the defamatory imputations,\r\nfailed to consider the issue which is raised before the Court with\r\nregard to the jurisdiction is concerned which is a fundamental\r\nissue raised before the Trial Court as whether the Court as got\r\njurisdiction to entertain the suit. It is also important to note that\r\nthe Trial Court, in Para No.10 of the order, narrated the defence\r\ntaken by the defendant that the Court has no jurisdiction and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">specific contention was taken in the plaint that the application is\r\nliable to be dismissed for want of jurisdiction. No doubt, the\r\ndefendant also raised the contention that the suit is barred by\r\nlimitation, the same cannot be considered while considering an\r\napplication filed under Order 39, Rule 1 and 2 read with Section\r\n151 of C.P.C. and the Court has to examine whether prima facie\r\ncase is made out and when the issue of jurisdiction is also\r\nraised, the Trial Court ought to have considered the same, but\r\nthe same has not been considered by the Trial Court.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 29. No doubt, the learned counsel for the appellantdefendant relied upon several judgments, in the judgment of the\r\nApex Court in CIVIL APPEAL NO.7653 OF 2004 dated\r\n29.03.2005, in Para No.21, the Apex Court has held that the\r\nplea of jurisdiction goes to the very root of the matter. The Trial\r\nCourt having held that it had no territorial jurisdiction to try the\r\nsuit, the High Court should have gone deeper into the matter\r\nand until a clear finding was recorded that the Court had\r\nterritorial jurisdiction to try the suit, no injunction could have\r\nbeen granted in favour of the plaintiff by making rather a</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">general remark that the plaintiff has an arguable case that he\r\ndid not consciously agree to the exclusion of the jurisdiction of\r\nthe Court. The said judgment is aptly applicable to the facts of\r\nthe case on hand since, the issue with regard to jurisdiction has\r\nnot been considered by the Trial Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. The counsel for the appellant also relied upon the\r\njudgment in AXIS BANK LTD. VS. MPS GREENERY\r\nDEVELOPERS LTD. reported in 2010 SCC ONLINE CAL 1717,\r\nwherein in Para No.3 of the judgment, it is observed that the\r\nword “prima facie” case does not mean a case proved to the hilt, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">but is one, which is at least “an arguable one” at the time of\r\ntrial. If at that stage, the Court prima facie finds that from the\r\naverments made in the plaint itself, the Court has no territorial\r\njurisdiction to entertain the suit in accordance with law, it should\r\nnot consider the other two factors and reject the application on\r\nthe ground of absence of prima facie jurisdiction of the Court to\r\ngive the ultimate relief to the plaintiff. This judgment is aptly\r\napplicable to the facts of the case on hand since, the Trial Court\r\nhas not considered the issue of jurisdiction.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. With regard to the other aspect i.e., defamation is\r\nconcerned, since the Trial Court has considered the same taking\r\nnote of the words which have been used i.e., the defamatory\r\nimputations, I do not find any error committed by the Trial Court\r\nin coming to such a conclusion but, failed to take note of the fact\r\nthat whether the Court has got jurisdiction to entertain the suit.\r\nNo doubt, learned counsel appearing for the respondent would\r\nvehemently contend that there is a communication between the\r\nparties with regard to the affairs, it is contended that the same\r\nis sent to Bengaluru and the counsel also brought to notice of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">this Court Page Nos.176, 202 and 205. But, I have already\r\npointed out that the Trial Court has not discussed with regard to\r\nthe issue of jurisdiction whether the Court has got jurisdiction to\r\nentertain the suit and what are all the materials placed before\r\nthe Court to invoke the jurisdiction of the Trial Court, while\r\ngranting the relief but, the Trial Court failed to take note of the\r\nsaid fact into consideration. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">33. In the other judgment relied upon by the learned\r\ncounsel for the appellant in DEEPAK KUMAR @ DEEPAK SAHA\r\nVS. HINDUSTAN MEDIA VENTRUES LTD. & ORS. reported in\r\n2017 SCC ONLINE DEL 8970, in Para No.7 of the judgment, it\r\nis held that cause of action has one meaning in relation to the\r\nbasis of a claim and another in relation to the jurisdiction of\r\nCourt. The former is the restricted and the latter is the wider\r\nmeaning of cause of action and there must be a cause of action\r\nfor jurisdiction and the same is also aptly applicable to the case\r\non hand.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34. In the other judgment relied upon by the learned\r\ncounsel for the appellant in KEDUTSO KAFPO VS. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">KENEINGULIE reported in (1994) 1 GAUHATI LAW\r\nREPORTS 145, in Para No.8 of the judgment, the Court has\r\nheld that, under Section 19 of the Code of Civil Procedure, such\r\na suit could be instituted either within the local limits of the\r\njurisdiction of a Court where the defendant resides or carries on\r\nbusiness or personally works for gain. Such a suit could also be\r\ninstituted within the local limits of the jurisdiction of a Court\r\nwhere the wrong was done and though there is no dispute with\r\nregard to the fact that suit could be instituted in a Court where\r\nthe wrong was done, but nothing is discussed by the Trial Court.\r\nHence, I am of the opinion that the Trial Court has committed an\r\nerror in not considering the issue of jurisdiction as to whether\r\nthe plaint is maintainable for want of jurisdiction and on perusal\r\nof the order of the Trial Court in its entirety, it is seen that the\r\nsame has not been considered by the Trial Court. Even though\r\nthe Trial Court extracted the defence of the defendant in Para\r\nNo.10 of the order, however not touched upon the issue of\r\njurisdiction, while passing an order. Hence, I answer point\r\nNo.(1) framed by this Court as ‘affirmative’.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(2)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The appeal is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '38583b17b4545992d5a1d00554a6e140.JPG', 'fba1428d036eda9c176865773999dbcd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-19', 1, '', '', '2023-07-18 14:51:13', '2023-07-19 06:30:10');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3218, 'CdvRapED3CalZaaHCqHXodbpb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Contempt of Court under Order XXXIX Rule 2A, CPC. Even persons who are not parties to suit can be punished for contempt of court. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>T. Sudhakar Pai and others Vs M/S Manipal Academy of Higher Education and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Commercial Appeal 404 of 2022 decided on 17 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Alok Aradhe and Justice Anant Ramanath Hegde.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This appeal under Section 13(1)(A) of the Commercial Courts Act, 2015 read with Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 (hereinafter referred to as the \'Code\' for short) is filed against the order dated 28.09.2022 passed by X Additional District Judge, Bengaluru Rural District in Commercial Misc. No.246/2021.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">1.1 In the aforesaid order, the Commercial Court, exercising powers under Order XXXIX Rule 2(A) of the Code, held that the appellants are guilty of disobedience of the order of temporary injunction, dated 21.02.2019. Consequently, appellant No.1 is sentenced to undergo civil imprisonment for three months and held liable to pay Rs.1,00,000/- as compensation to the plaintiffs. Further, appellants No.2 and 3 and respondent No.5 of this appeal, (respondent No.3 in Misc. No.246/2021) are sentenced to undergo civil imprisonment for one month and each of them is held liable to pay a compensation of Rs.50,000/-,&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to each of the plaintiffs. Further, the plaintiffs are permitted to apply to attach the movable and immovable properties of the contemnors to recover the compensation amount, if not paid by the appellants.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. O.S. No.1244/2019 is filed by the Manipal Academy of Higher Education (Trust) and the Manipal Academy of Higher Education (Deemed University) before the City Civil Court at Bengaluru, seeking the relief of permanent injunction, to restrain the defendants from using certain trade names/trademarks individually, or in conjunction with the trade name of defendant No.1. Initially, the suit is filed against three defendants viz., Manipal International School, Manipal E-commerce Limited and T. Sudhakar Pai.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. Later, on 02.03.2019, the case is ordered to be registered as Commercial Suit. On 11.03.2019, the abovementioned suit is registered as Commercial Suit in O.S. No.15/2019. Defendant No.3 appeared on 03.04.2019 and contested the suit by filing a written statement and filed an application under Order XXXIX Rule 4 to vacate the interim order dated 21.02.2019.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. On 05.04.2019, respondents No.1 and 2 of this appeal moved the Commercial Court under Order XXXIX Rule 2A of the Code, alleging willful disobedience of the interim order dated 21.02.2019, by the appellants. Said application is registered as Com. Misc. No.9/2019.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. On 04.11.2020, the plaintiffs’ application dated 7.6.2019, under Order I Rule 10 of the Code is allowed and&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Manipal Academy of Health and Education, (Defendant No.4) and Kurl–On Ltd. (Defendant No.5) are impleaded in the suit.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>8. By order dated 27.5.2021, the matter is transferred to Commercial Court, Bengaluru Rural and the suit is renumbered as O.S. No.960/2021. The application under Order XXXIX Rule 2A of the Code which was earlier registered as Com. Misc. No.9/2019 is renumbered as Misc. Application No.246/2021. Appellants of this appeal filed a statement of objection in Misc. 246/2021, and contested the allegations of willful disobedience.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. After hearing the parties to the suit, vide order dated 22.4.2022, the application to vacate the interim order was rejected and the ex parte order of temporary injunction was made absolute. Later, in terms of the impugned order dated 28.9.2022, the Commercial Court held that appellant No.1 (defendant No.3 in the suit) and appellants No. 2 and 3 and respondent No.5 of this appeal&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(who are not parties to the suit but parties to Misc. No.246/2021) are guilty of willful disobedience of the ex parte interim order dated 21.02.2019. This appeal arises out of the said order dated 28.09.2022.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. We have considered the contentions raised at the bar and perused the records and judgments cited.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(a) Whether the appellants establish that the acts complained do not amount to disobedience or breach of the interim order dated 21.02.2019, in the light of partial/limited ex parte interim relief granted by the Commercial Court?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(b) Whether the appellants establish that the acts complained are the acts committed by the Company against which there was no ex parte order of injunction, as such, there is no disobedience or breach of the order of injunction by the appellants?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(c) Whether the respondents prove that appellants have willfully disobeyed the interim order dated 21.02.2019?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(d) Whether the Commercial Court justified in ordering civil imprisonment, payment of compensation and attachment of property if the compensation is not paid?&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>24. After considering the aforementioned applications, the Court on 21.02.2019, passed an order which reads as under.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\"Defendants are hereby restrained by an order of ex parte injunction restraining them from infringing the plaintiffs registered trade mark by using identical trade mark like \"MAHE\" or&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\"Manipal groups\" in conjunction with any trademark, service mark and advertisement for their services or business papers\".</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>25. It is forthcoming from Ex. P26 and P37 that the trade names/trademarks namely MAHE and MANIPAL GROUP were used by a company by the name MANIPAL ACADEMY OF HEALTH AND EDUCATION, the fourth defendant which was impleaded vide order dated 04.11.2020 (Hereinafter referred to as the ‘Company’ for short). The prayer in the plaint as well as the prayer in the application is to restrain the defendants from using several alleged trade names/trademarks either singularly or in conjunction with some other names. In paragraph No. 31, the plaintiffs claim to be the registered holder of 9 specific trade names/trademarks. Though the prayer is made in respect of several trade names/ trademarks, the ex parte order is confined to the use of&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">MAHE\" or \"Manipal groups\" not only individually but also in conjunction with any trademark, service mark and advertisement for their services or business papers\".</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. Considering the contentions in the pleading, and the ex parte order granted by the Court, it has to be concluded that the use of the trade name/trademarks \"MAHE\" or \"Manipal groups\" individually or in conjunction with any other business names amounts to disobedience or breach of the ex parte order of temporary injunction.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. Now the question is whether the appellants disobeyed or committed a breach of the interim order dated 21.02.2019 by the appellants?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. To answer the above question, the Court has to consider the following:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(a) whether the appellants were aware of the ex parte interim order;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(b) whether the appellants were bound by the ex parte interim order and;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Discussion on the question (a): 29. So far as question (a) is concerned the appellants in their statement of objection before the Commercial Court did not raise a defence that they were not served with a copy of the interim order. The evidence on record (discussed infra) also reveals that the appellants were aware of the ex parte Court order. Hence the question (a) referred to above is answered in the affirmative.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Discussion on the question (b) 30. “Whether the appellants are bound by the order”?&nbsp;<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>35. In the case of SITA RAM VS BALBIR (2017) 2 SCC 456 the Hon’ble Apex Court held that the Courts have the power to punish the person who willfully violates the Court order despite being aware of the court order, though such a person is not a party to the proceeding which passed the order. In the instant case, it is not the case of the appellants that they were not aware of the order of injunction. In the cross-examination (referred infra) the appellants admit that they were served with a copy of the order or were aware of the Court order at least. Hence this Court is of the view the order dated 21.02.2019 binds all the appellants and accordingly the question (b) referred to above is answered in the affirmative.&nbsp;<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36. Now the question is whether the appellants have disobeyed the interim order and if so whether disobedience or the breach is willful disobedience of the order. This question is to be considered in the light of the contention that the prohibited use of trade name/trade&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">mark is said to be used by the Company or the franchisee, (as per the version of the appellants) which were not parties to the suit when the ex parte order was passed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>37. To answer the question, the following points are required to be considered.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(a) Whether appellant No.1 participated in the decision-making process of the Company which authorized the use of the trade mark/trade name covered by the interim order.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(b) Whether appellants No. 2 and 3 aided and abetted appellant No.1 and the Company in using the trade mark/trade name covered by the interim order.</span><span style=\"font-size: 12pt;\">&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>41. There is nothing on record to show that appellant No.1 distanced himself from the decision-making process when the decisions are taken to allow the third parties/franchisees to use the trade name/trade mark covered by the interim order. It is his stand that he is arrayed in the suit in his individual capacity and not as a Director of the Company. It is contended that appellant&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">No.1 is not prevented from participating in the proceedings of the Company as a director, and any decision taken by the Company where he has participated as a director should be treated as a decision/act of the Company, and not the decision/act of the appellant No 1. This contention does not merit elaborate consideration as it runs contrary to the underlying spirit and object of Order XXXIX Rule 2 A of the Code, discussed supra, which empowers the Court to proceed against any “person” who violates the order of the Court. If such a contention is accepted, it defeats the salutary object behind Order XXXIX Rule 2A of the Code. Hence appellant No.1 is guilty of disobedience or breach of the interim order of injunction.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">44. Hence the appellants are also guilty of disobedience of the interim order dated 21.02.2019.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>51. Thus, from the evidence of RW-3/the appellant No.1, it is explicit that he was aware of the interim order passed against him in the year 2019. And RW-3 in his capacity as the director of the Company has consciously and deliberately allowed the franchisee to use the name MANIPAL GROUP and MAHE. Appellant No. 1 now seeks to take shelter under the banner of the Company in which he is one of the directors and played a decisive role to permit the use of the injuncted name/trade mark. It is urged that the Company has issued authorisation to the franchisee to use the name MANIPAL GROUP and he has not authorised in his capacity as defendant No.3. However, what is to be noticed is that the 4th defendant is only a Company and it&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">is managed by the board of directors. The evidence also discloses the fact that the wife and two daughters of appellant No.1 are the remaining directors of the Company along with appellant No.1.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>54. It is also evident from Exs.P.39 and 40 that trademarks MAHE and MANIPAL GROUP are used by appellant No.3. These are the publications by MANIPAL INTERNATIONAL SCHOOL and the publication of these documents which contain the expression MAHE and MANIPAL GROUP are not disputed by the appellants.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>55. Under these circumstances, there is no difficulty in holding that the MAHE and MANIPAL GROUP, the expressions which are covered in the interim order are used by the appellants even after service of notice of the interim order.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>62. As already noticed, the Commercial Court has passed an order for payment of compensation. The order also permitted the plaintiffs to apply for the sale of the attached property if compensation is not paid. In addition, civil imprisonment is also ordered. To decide the question on the punishment and its proportionality the Court has to consider Order XXXIX Rule 2A of the Code<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-size: 12pt;\">&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>64. As can be noticed, the provision does not empower the Court to award compensation by attachment and sale of the property, immediately after pronouncing the verdict of guilty. To sell the property attached, the Court has to wait till the expiry of the period of attachment, specified in the order which can be one year, at the maximum. The property attached can be sold if the disobedience or the breach complained of continues at the end of the period of attachment. It is again noticed, even if the breach continues, the Court is not bound to sell the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">property, but at its discretion may order the sale of the property attached and pay compensation to the injured.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>66. In this case, payment of compensation is ordered on the day of pronouncing the verdict of guilty,&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which is impermissible under Order XXXIX Rule 2A of the Code. The opportunity for the contemnors to make amends for their acts and omissions is denied. Instead of ordering attachment to secure possible order for payment of compensation, in the event of disobedience or breach continuing at the end of the tenure of the order of attachment, the Court straight away ordered payment of compensation and permitted the plaintiffs to apply for attaching the property of the contemnors if payment is not made. By doing so, the Commercial Court put the cart before the horse which is impermissible. Hence the order for payment of compensation has to be set aside as the same is in ultra vires the provision of Order XXXIX Rule 2A of the Code.</span><span style=\"font-size: 12pt;\">&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>67. Now we may advert to the question, whether the Commercial Court is justified in directing appellant No.1 to undergo civil imprisonment of 3 months and civil&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">imprisonment of one month each to the appellants and respondent No.3 in Commercial Misc. No.246/2021</span><span style=\"font-size: 12pt;\">&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>70. In terms of the law laid down by the Apex Court in SAMEE KHAN vs. BINDU KHAN reported in (1999) 7 SCC 59 it is held that the Court has the power to order attachment as well as civil imprisonment simultaneously. From the very language employed in the provision, it is apparent that the discretion lies with the Court to impose either of the two punishments as well. However, the discretion is not absolute or unfettered. Every wide power conferred on the Courts has inherent limitations and inbuilt checks and balance mechanisms. Likewise, the discretion under Order XXXIX Rule 2A has its inherent limitations as the power to order civil imprisonment under Order XXXIX Rule 2A curtails an individual\'s fundamental right, albeit through a process of law.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>74.4. In the same judgment in PATEL RAJANIKANT DHULABHAI supra in paragraph No. 62, the Apex Court has extracted the observation of Lord Diplock in the celebrated decision of Attorney General v. Times Newspaper Ltd. [(1974) AC 273 : (1973) 3 All ER 54 : (1973) 3 WLR 298 (HL)] which reads as under.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“There is an element of public policy in punishing civil contempt since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity.”</i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>74.7. In the case of PATEL RAJNIKATH supra the Apex Court imposed civil imprisonment for 15 days. In the said case, the contemnor violated the interim order which prohibited him from alienating the property. In the instant case, the contemnors used the injuncted trade name/trade mark. Having due regard to the underlying philosophy of Order XXXIX Rule 2 A of the Code, discussed supra, and&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">having regard to the age of appellant No.1, who is 63 years (as per the age mentioned in the affidavit dated 8.3.2022), this Court is of the view that three months civil imprisonment, imposed to appellant No.1, which is the maximum period allowed under Order XXXIX Rule 2A of the Code is on the higher side. In the facts and circumstances of the case discussed above, this Court is of the view that the ends of justice would be met if appellant No.1 is directed to undergo civil imprisonment of 15 days.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>74.8. As far as appellants No.2 and 3 are concerned, it has to be noticed that their acts have to be analysed in a different yardstick given the fact that they were not parties to the proceeding when an interim order was passed. Appellant No.2 claims to be the Chief Executive Officer of the MAHE, and Appellant No.3 claims to be the Vice President of MAHE. Considering their positions in the institution it can be held that they are not part of the decision-making process of the Company. Nevertheless,&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">they are very much aware that the order is passed against appellant No.1 restraining him from using the trade mark MAHE and MANIPAL GROUP and they were bound to respect the order of the Court. This being the position, the Court has to consider whether the act of appellants 2 and 3 in aiding and abetting the act of appellant no. 1 amounts to wilful disobedience of the Court Order. On analysis of evidence, it has to be held that appellants no. 2 and 3, though on their own accord did not disobey the order, certainly aided and abetted the appellant No.1, seemingly under the directions of appellant No. 1 who held a dominating position.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>74.9. However, taking into consideration the precarious position of appellants No.2 and 3, where appellant No.1 instructed them to continue to use the prohibited trade mark, and having regard to the parameters discussed in paragraph No.71, and keeping in mind that the primary underlying object of the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">provision preventive and curative, this Court is of the view that the order of civil imprisonment against the appellants No. 2 and 3 is disproportionate and unjustified and has to be set aside.</span><span style=\"font-size: 12pt;\">&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>74.10. Since the appellants are guilty of disobedience of the order passed by the Court, the Commercial Court, on securing the details of the properties of the appellants, shall attach the properties (to the extent required to realise the compensation) for a period of six months, and in case, the breach or disobedience continues at the expiry of six months, then the attached properties of the appellants, be sold and the compensation of Rs.1,00,000/- be paid to each of the plaintiffs from the sale of the properties of the appellant No.1, and Rs.50,000/- be paid to each of the plaintiffs from the sale of properties of each of the appellants No. 2 and 3.&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>75. By way of a separate order, this Court has allowed the application at I.A.No.2/2023 seeking permission to raise additional grounds is allowed and those grounds are considered in this order. By way of a separate order, the application at I.A.No.3/2022 seeking the production of additional documents is rejected.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(a) The impugned order dated 28.09.2022 passed by X Additional District and Sessions Judge, Bengaluru Rural district, Bengaluru in Commercial Misc. No.246/2021 directing Civil imprisonment of appellants No.2, 3 is set aside.&nbsp;<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(d) In case, the breach or disobedience continues at the expiry of six months, then the attached properties of the appellants be sold and compensation of Rs.1,00,000/- be paid to each of the plaintiffs from the sale of the properties of the appellant No.1, and Rs.50,000/- be paid to each of the plaintiffs from the sale of properties of each of the appellants No.2 and 3.&nbsp;<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(f) Accordingly, the appeal is allowed in part as indicated above.</b></span></p>', '7a3dc1a69513c9d3a6098785b5be5148.jpeg', '20c3e55a95ca075d39d477a258c73d81.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-19', 1, '', '', '2023-07-19 11:01:59', '2023-07-19 12:17:39'),
(3227, 'b10mcMM9yxepJDXmLzrfw5SNp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Freedom fighters’ pension. The proof required must be as provided in the pension scheme itself. As long as such proof was not available, the benefit cannot be granted. Karnataka High Court, while following the Supreme Court Judgment. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Accountant General and others Vs Chennavva Thr LRS and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Appeal 100409 of 2022 decided on 7 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice R. Devdas and Justice Rajesh Rai K.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">The appellants in this writ appeal have questioned the correctness and validity of the order dated 14.08.2007, passed in W.P. No.16921/2005 and the order dated 09.11.2021 in R.P.No.1602/2012 passed by the learned single Judge, wherein the learned single Judge by dismissing the review petition filed by the appellants vide order dated 09.11.2021 directed the appellants to act in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">terms of the order dated 26.10.2007 passed by the first appellant by directing the Deputy Commissioner to release the amount of freedom fighters\' pension to the respondents within a period of 30 days. Being aggrieved by the said orders passed by the learned Single Judge, the appellant-State has filed this writ appeal.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>2. Brief facts which are necessary for disposal of this writ appeal are as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The respondents are the children of late Channavva and late Basavannayya. The said late Basavannayya was a freedom fighter and is said to have participated in the Quit India Movement in the year 1942. After introduction of Freedom Fighters\' Pension Scheme, 1969, he made an application along with all necessary documents before the first appellant and requested for grant of Freedom Fighters\' Pension. In pursuance of the request made by the respondents father, the first appellant granted Freedom Fighters\' Pension to him in the year 1993. Subsequently, the Government has issued an order on 09.03.1995 bearing No.DPAR 59 PFG 94, Bengaluru and</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">irected all the Deputy Commissioners to re-verify the cases of freedom fighters\' pension and submit a report along with list of documents. Accordingly, the second appellant submitted a report and recommended to cancel the freedom fighters\' pension of the father of the respondents. However, before passing the said cancellation order, notices were issued and an enquiry was also held and due to non-production of sufficient material by the father of the respondents, his pension was withheld vide order dated 10.01.1994.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Having heard the counsel for the appellants and the respondents and having perused the documents, the only point that would arise for our consideration is:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>“Whether the learned Single Judge was justified in allowing the W.P.No.16921/2005 filed by the mother of the respondents and by dismissing the R.P.No.1602/2012 filed by the appellant-State and thereby, directing the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appellants to act in terms of the order dated 26.10.2007 passed by the first appellant and directing the Deputy Commissioner to release the amount to the respondents ?”</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. After a lapse of 3 years from the death of the father of the respondents, the mother of the respondentsSmt.Channavva herein filed a writ petition No.16921/2005. The said writ petition was allowed referring to the order passed in W.P.No.13770/2005 while directing the authorities to pay the arrears of family pension from the date of death of the respondents father and also directed the respondent to furnish full particulars in respect of her claim, the appellants have already considered all the available documents and passed the order of rejection earlier. In pursuant to the said order, the respondents mother made a representation to the appellants to reconsider the claim but the authorities vide communication dated 23.08.2008 cancelled the freedom fighters pension. Being aggrieved, the respondents’ mother late Channavva filed W.P.No.31019/2008 challenging the endorsement dated 23.08.2008 and the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">said writ petition was disposed off on 21.07.2011, reserving liberty to the authorities to review the order dated 14.08.2007 passed in W.P.No.16921/2005. As such, the Government filed the review petition No.1602/2012 to review the order passed in W.P.No.16921/2005. However, the said review petition came to be dismissed. Moreover, in the said review petition, the learned single Judge directed the first appellant to act in terms of the order dated 26.10.2007, though such prayer was not made by both the parties. Moreover, the guidelines issued by the Central Government for disbursement of Central Government Sanman Pension Scheme of the year 2014 which was followed by the State Government also, provides that:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>‘Sanction of pension after the death of freedom fighter – No pension shall be sanctioned in the name of freedom fighter after his/her death even his/her matter was under examination. This also entails that no life time arrears of dependent pension shall be sanctioned to his/her spouse/daughter after the death of the freedom fighter.</b></span></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. Moreover, the father of the respondents failed to appear before the authorities during the enquiry in support of his claim. Therefore, the authorities have cancelled the freedom fighters pension. Later the respondents mother approached the appellants by filing writ petitions and by submitting the representation claiming pension. By that time, the circular/guidelines of the year 2014 was already issued and was in existence. In such circumstances, though the circular/guidelines are prospective in nature the same will be applicable in the case of respondents also.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. The Hon’ble Apex Court in the Judgment rendered in the case of Union of India Vs. Bikash R. Bhowmik and others reported in (2004) 7 SCC 722 at paragraph No.2 held as under: <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>“Learned Additional Solicitor General appearing on behalf of Union of India relied upon two decisions of this Court viz., Mukund Lal Bhandari Vs. Union of India 1993 Supp (3) SCC 2 and Union of India Vs. Mohan Singh (1996) 10 SCC 351 to the effect that pension could be sanctioned only as per proof as <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">required in the pension scheme and in no other manner. We think there is great force in the submission made by the learned Additional Solicitor General. We find that the High Court could not have traveled beyond the pension scheme to find that there was substantial compliance with the prerequisites as to suffering of imprisonment. In order to get the benefit of the pension scheme, the proof required must be as provided in the pension scheme itself. As long as such proof was not available, the benefit could not have been granted. Therefore, we set aside the order of the High Court and dismiss the writ petition filed by the respondent No.1. The appeal is allowed accordingly.\"</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. The dictum laid down by the Hon’ble Apex Court in the above case is squarely applicable to the case on hand. In that view of the matter, in our considered opinion the order passed by the learned Single Judge in W.P.No.16921/2005 dated 14.08.2007 as well as the order passed in R.P.No.1602/2012 dated 09.11.2021 are liable to be set aside.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i) The appeal filed by the appellants is allowed. </b></p>', 'a8c8448a2fb728cb368677f260043e09.jpeg', 'df5906d0af6b72ad18ee8158c18a82b4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-22', 1, '', '', '2023-07-20 15:08:30', '2023-07-22 11:37:28');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3228, 'DZSdquWupXXXmQOyavjO669xV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Right of the defendant to file a separate suit for partition in respect of properties not included in the plaint is not barred merely because he did not make counter claim in respect of the omitted property. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Revanamma Vs Shivalingappa and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 200262 of 2017 decided on 30 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This is an appeal which arises out of a suit which had been instituted by one Revanamma seeking for partition in respect of certain properties, which were left out in the suit which had been filed by her sister Shantabai for partition in O.S.No.71/2011.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The Trial Court took the view that the suit being one for partition, the defendants stood in the same position as plaintiffs and therefore, the bar under Order II Rule 2 of CPC stood attracted as they had not chosen to include the suit property and the earlier suit had already been decided and the appeal was also dismissed. It accordingly proceeded to reject the plaint filed by Revanamma.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The Appellate Court, on consideration of the matter also came to the conclusion that though Order II Rule 2 of CPC did not bar the filing of a fresh suit for partition on afresh demand for partition being turned down after the previous suit filed for partition had been dismissed for non inclusion of all the properties, the plaintiff had agitated her right in the previous suit and had not whispered a single word about the left out properties and the suit of the plaintiff was hit by Order II Rule 2 of CPC and the rejection of the plaint was right. It accordingly dismissed the appeal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. As against this, the present second appeal has been preferred and the same has been admitted for considering the following substantial question of law:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“Whether the rejection of the plaint by the Trial Court as confirmed by the Appellate Court is justified on the proposition that the plaintiff could not have instituted a suit in respect of a property which had not included in the earlier suit <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for partition filed by her sister - the defendant in O.S.No.71/2011, by reason of Order II Rule 2 of CPC?”</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. In a suit for partition, it is no doubt true that all the parties are considered as plaintiffs. However, this is because, in most cases, all the parties to the suit have an undisputed pre-existing right in the suit properties and there is no dispute regarding title over the said properties and the suit would have been filed only to divide their preexisting rights in joint family properties by metes and bounds. However, that cannot lead to an inference that all the parties to a suit will have to be considered as plaintiffs for the purposes of Order II Rule 2 of CPC. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Order II Rule 2 of CPC has been enacted basically to ensure that that a plaintiff files a comprehensive suit and includes all the claims that he is entitled to make against <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the defendant at the time of filing of the suit. This also ensures that a plaintiff does not file repeated suits against the same defendant on the ground that he had omitted to make a claim when filing the first suit. In essence, the underlying objective under Rule 2 is to prevent multiplicity of proceedings between the same parties. </span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. It is no doubt true, that a defendant can also make a counter claim against the plaintiff in the suit under Order VIII Rule 6A of CPC . However, it is to be noticed here that this Rule employs the word “may” thereby meaning that it is an option given to the defendant to make a counter claim in the very suit that has been filed against him without having to resort to the filing of another suit in respect of his claim. By the specific use of the word “may” the law makes it clear that it is not mandatory for the defendant to make a counter claim and thus if a defendant does not opt for filing a counter claim, that would not <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">mean that he has lost the right to enforce his claim for ever.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. It is to be kept in mind that when a suit is instituted by a plaintiff, the defendant is essentially defending a claim being made against him and in such a proceeding, there can be no compulsion on him to raise his counterclaim. The law merely gives him an option to take advantage of resolving his claim against the very same plaintiff by making a counter claim. This is essentially a tool of convenience for the defendant and the fact that this tool is not used by the defendant cannot lead to an inference that he has lost the right to make his claim. A procedural rule, by any stretch of imagination, cannot be used to defeat a substantive legal right of a party</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. In my view, the principle embedded in Order II Rule 2 of CPC cannot be stretched to say that in a suit for partition if a defendant fails to make a counter claim, he loses the right to seek for a share in the properties of a joint family. If this argument is accepted, the valuable <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">right that a defendant may possess over a joint family property would be deprived merely because he did not make a counter claim.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. Another factor to be borne in mind is that a claim for partition is a recurring cause of action and the said right can be claimed more than once and this cause of action is alive and can be enforced until the property is actually partitioned. In fact, this is also the view taken by the Apex Court in a recent case i.e., in the case of GANESH PRASAD Vs RAJESHWAR PRASAD AND OTHERS (Civil Appeal arising out of SLP (c) No.28377/2018 decided on 14.03.2023) which reads as follows:</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>““It follows, therefore, that if the right of redemption is not extinguished, the provision like Order IX Rule 9 of the CPC will not debar the mortgagor from filing a second suit because as in a partition suit, the cause of action in a redemption suit is a recurring one. This cause of action in each successive action, until the right of redemption is extinguished or a suit for redemption is time barred, is a different one.”</i></span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. It is, therefore, clear that the right of the defendant to file a separate suit for partition in respect of a property not included in the suit filed by the plaintiff is not barred merely because he has not chosen to make a counter claim in respect of the omitted property, though he had the option to do so.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. In that view of the matter, the question of law framed is answered in favour of the appellant/plaintiff. As a result, the impugned judgments and decrees are set aside and the matter is remitted to the Trial Court with a direction to it to consider the matter afresh on merits.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The second appeal is accordingly allowed.</b></span></p>', 'e36b5954e82aaca0e04e45dad47d2632.JPG', 'e751100f68356c4f16896183a8f40c0c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-22', 1, '', '', '2023-07-20 15:09:47', '2023-07-22 03:14:46'),
(3229, 'g6kwbvlK8cASAul2ROMEzt8np', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sub-tenant claiming under tenant is not entitled to notice under Section 106 of the Transfer of Property Act. Termination of the tenancy would, as a matter of course, affect the sub-lease as well. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sri Rama Temple Committee and others Vs M/S. Veerashaiva Co. Operative Society and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 608 of 2015 decided on 18 October 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K.S. Mudugal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">\"In dismissing the petitioners\' suit for ejectment, whether the trial Court committed illegality?\" is the question involved in this case.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>The petitioners initially filed O.S.No.2387/2005 before the X Additional City Civil Judge, Bangalore against respondent No.1 seeking decree for ejectment. Subsequently, respondent No.2 was impleaded in the case with allegations that respondent  No.1  has sub-let the suit property to respondent No.2.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>The case of plaintiffs in brief is as follows: Defendant No.1 was tenant of the suit property under the plaintiffs on rent of Rs.225/- per month. The tenancy was monthly tenancy commencing from first of each calendar month. Since the area of the suit premise exceeds 14 square meters and is commercial premises, the Karnataka Rent Act, 1999 is not applicable. Defendant No.1 sub-let the suit premises to defendant No.2 without the knowledge or consent of the plaintiffs. The suit property is required for the plaintiffs’ own use and occupation. Therefore the plaintiffs terminated the tenancy of defendant No.1 by notice dated 04.11.2002 calling upon to deliver the vacant possession of the suit property. The notice was served on defendant No.1 on 08.11.2002. Defendant No.1 is liable to pay the damages at the rate of Rs.8,000/- per month. Thus they sought for decree of ejectment, payment of arrears of rent and damages at the rate of Rs.8,000/- per month from 01.12.2002 till 31.03.2003 and future mesne profits.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>The trial Court on hearing the parties by the impugned judgment and decree dismissed the suit on the following grounds:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space: pre;\">	</span>The plaintiffs’ documents do not show that plaintiff Temple is registered under the Hindu Religious Institutions and Charitable Endowments Acts, 1997 (‘the Act’ for short) as amended by Act 2012.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>(ii)<span style=\"white-space: pre;\">	</span>There is nothing on record to show that plaintiff No.2 was the Chairman of the Temple Committee and plaintiff Nos.3 to 5 were Secretary, Treasurer and Member of the Temple Committee.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>(iii)<span style=\"white-space: pre;\">	</span>After death of plaintiff No.2, other trustees were not made parties to the suit. Plaintiff Nos.2 to 5 failed to establish that they are the members of the Executive Committee of plaintiff No.1 temple as required under Sections 23, 24, 24A, 25, 25A and 53 of the Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>(iv)<span style=\"white-space: pre;\">	</span>Since there is dispute with regard to ownership of the property of plaintiff No.1 temple, the Small Causes Court has no jurisdiction to entertain and decide the issue of title of plaintiffs to the suit property. The plaintiffs have failed to prove the measurement of the suit property.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>(v)<span style=\"white-space: pre;\">	</span>Despite defendant No.2 claiming that Archaka of the temple has let out the property to him in the year 2002, the said Archaka was not examined. The plaintiffs claim that the suit property is No.61, defendant No.2 claims that the property let out to him is property No.27. The plaintiffs have failed to prove the identity of the property.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space: pre;\">	</span>It was argued that plaintiff No.1 temple is governed by the Act and the same is not registered as required under Section 53 of the Act or declared under Section 42 of the Act, therefore it cannot maintain the suit. To consider whether in the absence of such declaration or registration, the suit can be maintained, it is necessary to have a glance at the provisions of the said Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\">17.<span style=\"white-space: pre;\">	</span>The Statement of Objects and Reasons of the Act indicates that since different acts namely the Karnataka Religious and Charitable Institutions Act, 1927, the Madras Hindu Religious and Charitable Endowment Act, 1951, the Bombay Public Trust Act, 1950, the Hyderabad Endowment Act, Regulations 2349F and the Coorg Temple Funds Management Act, 1956 were governing different parts of Karnataka, a need was found to bring about uniform law to provide for the regulation of </font></span><font face=\"Calibri, sans-serif\">all Charitable Endowments and Hindu Religious Institutions in the State of Karnataka.</font></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space: pre;\">	</span>Clause 1 of the Statement of Objects and Reasons indicates that the legislature intended to make the law applicable generally to the Hindu Religious Institutions, Temples, etc. who were managed or being managed on the grants of the State Government or other temples even if they are not under the management of the State Government, if required to be regulated by the State Government by reasons of mismanagement by notifying them as declared institutions.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space: pre;\">	</span>Section 1(4) of the Act reads as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>“1. Short title, extent, commencement and applications.-……………………………………………………………… (4)   It shall apply to, all religious institutions or charitable endowments notified under section 23. Section 53 and Chapter VIII shall apply to all religious institutions or charitable endowments other than those notified under section 23:<br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\"><br></font>20.<span style=\"white-space: pre;\">	</span>No doubt Section 2(17) of the Act says that Religious Institution means a temple or any endowment. But by reading of Section 1 (4) it becomes clear that the Act shall apply only to the institutions notified under Section 23 of the Act. The other exception is that Section 53 and Chapter VIII shall apply to the Religious Institutions or Charitable endowments other than the one notified under Section 23 of the Act.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space: pre;\">	</span>In the light of the above provisions the Court has to see whether plaintiff No.1 is governed by the Act. Section 23 of the Act reads as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><i><font face=\"Calibri, sans-serif\"><b>“23. Notified Institutions.- The State Government shall as soon as may be after the commencement of this Act publish by notification in respect of each revenue district, a list of;</b></font></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><i><font face=\"Calibri, sans-serif\"><b>(a)<span style=\"white-space: pre;\">	</span>all Charitable Institutions and Hindu Religious Institutions which on the date of commencement of this Act are in the sole charge of the State Government or for the benefit of which.</b></font></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><i><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space: pre;\">	</span>any monthly or annual grant in perpetuity is made from public revenues: or</b></font></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><i><b><font face=\"Calibri, sans-serif\">(ii)<span style=\"white-space: pre;\">	</span>tasdik allowance under section 19 of Mysore Religious and Charitable Inams Abolition Act, 1955 is paid.</font><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">22.<span style=\"white-space: pre;\">	</span>Reading of the above provision shows that to make the Act applicable the temple should be notified one. It is not even the case of the defendants that the temple is notified by the State Government under Section 23 of the Act.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space: pre;\">	</span>Section 42 of the Act which was relied on by learned Counsel for the defendant No.2 reads as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>“42. Declared Institutions.- The State Government may, where it is satisfied on a report of the Commissioner under section 43 or otherwise that any Hindu Religious Institution, whether or not governed by a settled scheme, is being mismanaged, declare such institution to be subject to the regulation of this chapter. Provided no such declaration shall be made without following the procedure hereinafter specified.”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">24.<span style=\"white-space: pre;\">	</span>Reading of the above provision shows that the State Government can declare under Section 42 of the Act any institution on the report of the Commissioner that the same is being mismanaged. The declaration shall be to the effect that such institution/temple is governed by Chapter VIII.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>25.<span style=\"white-space: pre;\">	</span>Sections 43 to 48 of Chapter VIII of the Act deal with procedure for declaration after giving right of hearing and for declaration that the Committee of the Management of the Institution is dissolved and vesting administration of such institution, appointment of Executive Officer, term of office and duties of Executive Officer etc.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>26.<span style=\"white-space: pre;\">	</span>In this case the State Government has not passed any such declaration. Therefore there is no merit in the contention that Section 43 of Chapter VIII of the Act applies to plaintiff No.1.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>28.<span style=\"white-space: pre;\">	</span>No doubt Section 53(1) of the Act requires the Management of the Temple, within 90 days from the date of commencement of the Act to make an application for registration to the Assistant Commissioner. However that itself does not bar the plaintiffs from filing the suit. If at all if there is any lapse on the part of the plaintiffs in filing such application, it is for the concerned Authorities to take action which it deems fit. Apparently, in this case, no such action is taken.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>29.<span style=\"white-space: pre;\">	</span>Moreover, the said Act was struck down by this Court in Sahasra Lingeshwara Temple’s case which was questioned before the Hon’ble Supreme Court and there is interim stay. Therefore the trial Court’s finding that the suit was not maintainable for non registration of plaintiff No.1’s temple under the Act is grossly erroneous and unsustainable.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>36.<span style=\"white-space: pre;\">	</span>It is settled law that the admissions in the pleadings carry greater significance and relevance. Once the jural relationship is admitted by the defendant/tenant, Section 116 of the Evidence Act estopps him from denying the title of the landlord. The said Section reads as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>“116. Estoppel of tenant; and of licensee of person in possession.—No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given.”<br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>37.<span style=\"white-space: pre;\">	</span>This Court in para-6 of the judgment in Associated Traders and Engineers Ltd.’s case referred to supra held that defendants cannot retract from their admissions. That goes to show that the admissions made in the pleadings cannot be retracted at a later stage.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>38.<span style=\"white-space: pre;\">	</span>The Hon’ble Supreme Court in para 5 of the judgment in The Mineral Development Ltd.’s case referred to supra while referring to Section 105 of the TP Act held that, once the relationship of lessor and lessee is admitted, how the lessor got the title to make the lease is immaterial so long as the transaction is of the nature defined in Section 105 of the TP Act. Para 5 of the said judgment reads as follows:<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>\"5... If we turn to the definition of \'lease\' in s. 105 of the Transfer of Property Act, we find that a lease of immovable property is a transfer of a right to enjoy such property made for a certain time, express or implied or in perpetuity in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value to be rendered periodically or on specified occasions to the transferor by the transferee who accepts the transfer on such terms. What a lease therefore requires is a transferor and a transferee and a transfer of immovable property on the terms and conditions mentioned in s. 105. How the transferor gets his title to make a lease is immaterial so long as the transaction is of the nature defined in s. 105\"</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>39.<span style=\"white-space: pre;\">	</span>The Hon’ble Supreme Court in para 11 of the judgment in Ram Pasricha’s case referred to supra while holding that the tenant cannot deny that the landlord had the title to the premises at the commencement of the tenancy held as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>“11.... The tenant in such a suit is estopped from questioning the title of the landlord under section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant. It is, therefore, inconceivable to throw out the suit on account of non-pleading of other co-owners as such.”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>40.<span style=\"white-space: pre;\">	</span>In the light of the clear admissions of defendant No.2 referred to supra, judgments of the Hon’ble Supreme Court, Section 116 of the Evidence Act, and Section 105 of the TP Act, there is no merit in the contention of the defendants that the plaintiff No.1 is not the owner of the property or the suit property was not identifiable or the identity of the suit property was not proved.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>43.<span style=\"white-space: pre;\">	</span>The Hon\'ble Supreme Court in Para 6 of the judgment in India Umbrella Manufacturing Co. & Others v. Bhagabandei Agarwalla10 while holding that one of the co- owners can maintain the suit for ejectment against the tenant held as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>\"6.... It is well settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. This principle is based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners. The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement.\"</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>44.<span style=\"white-space: pre;\">	</span>The above facts and circumstances go to show that defendant No.2 though had no defence, just to prolong the proceedings went on changing his stance from pleadings to evidence and evidence to arguments. Such contentions were wholly vexatious. The trial Court ignored all such material admissions and the legal position on the point in holding that there was title dispute, therefore the Small Causes Court cannot adjudicate the matter. The said finding is liable to be set aside.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>46.<span style=\"white-space: pre;\">	</span>It is already held that the plaintiffs claim that defendant No.2 is the sub-tenant is proved. Then the question is whether Section 106 of the TP Act contemplates compulsory service of notice on the sub-tenant. In this regard this Court in para 13 of the judgment in Jadiyappa Parappa Jabin’s case referred to supra held that a sub- tenant claiming under tenant is not entitled to notice. Para 13 of the said judgment reads as follows:<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>\"13... A sub-tenant claiming under a tenant is not entitled to notice. The termination of the tenancy would, as a matter of course, affect the sub-lease as well. The finding of the lower Appellate Court in this regard, is hence, not in order.\"</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>48.<span style=\"white-space: pre;\">	</span>Exs.P1 to P11 which commenced from the year 1974 and continued till filing of the suit show that plaintiff No.1 is the owner of the property and its affairs were governed by the Committee. So far no body has taken any action against plaintiff Nos.2 to 4 on the ground that they are mismanaging the affairs of the committee or on the ground that they are not the validly appointed officer bearers of the committee. Therefore there is no merit in the contention that they had no locus-standi to file the suit, more particularly when defendant No.2 himself in the written statement in the first instance admitted that he was the tenant under the plaintiffs. On that count also the trial Court was not justified in holding that the suit before Small Causes Court was not maintainable and the question of title is involved. Sofar as the damages from the date of termination notice, there was no evidence to show that at that relevant time the market rate of the rent was Rs.8,000/- per month. Therefore for the said period the plaintiffs are entitled only the agreed rent of Rs.225/- per month.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>49.<span style=\"white-space: pre;\">	</span>The facts and circumstances of the case go to show that defendant No.2 has dragged the matter for 17 years without even depositing any rent, much less the rent agreed by him. Therefore the petition deserves to be allowed with heavy compensatory costs<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>ORDER<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>The petition is allowed on payment of costs of Rs.1,00,000/-.</b></font></span></p>', 'c82e2b88903c1f41ae26010b133550dc.JPG', 'd147755a70017c48e497831bec670f25.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-22', 1, '', '', '2023-07-20 15:10:50', '2023-07-22 09:04:44');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3230, 'gAXGp4pmPCU4AI5SXcvcZ0IAd', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Offences under the Wildlife Protection Act. Court can take cognizance only on the complaint filed by the authorized officer and not on the charge sheet submitted by the jurisdictional police. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rehaman Vs State<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.RP. 206 of 2016 decided on 3 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S Rachaiah.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">1. These Criminal Revision Petitions are filed by the\r\npetitioners / accused Nos.1, 2 and 3 respectively, being\r\naggrieved by the judgment of conviction and order of sentence\r\ndated 09.05.2006 in C.C.No.442/2005, on the file of JMFC,\r\nHunsur and its confirmation judgment and order dated\r\n20.06.2012 in Crl.A.No.108/2006 on the file of the Court of\r\nFast Track Court at Hunsur, Mysuru District, seeking to set\r\naside the concurrent findings recorded by the Courts below,\r\nwherein as per Section 51 of the Wild Life Protection Act, 1972\r\n(for short ‘Act’) the petitioners / accused Nos.1 to 3 were\r\nconvicted for the offence punishable under Section 39 and were\r\nsentenced to undergo simple imprisonment for one year with\r\nfine of Rs.5,000/-, in default of payment of fine, to undergo\r\nthree months simple imprisonment; as per Section 51 of the\r\nAct, the petitioners / accused Nos.1 to 3 were convicted for the\r\noffence punishable under Section 40 and were sentenced to\r\nundergo simple imprisonment for one year with fine of\r\nRs.5,000/-, in default of payment of fine, to undergo three\r\nmonths simple imprisonment; as per Section 51 of the Act, the\r\npetitioners / accused Nos.1 to 3 were convicted for the offence </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">punishable under Section 46(B) and were sentenced them to\r\nundergo simple imprisonment for three years with fine of\r\nRs.10,000/-, in default of payment of fine, to undergo six\r\nmonths simple imprisonment</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Having heard the rival contentions urged by the\r\nlearned counsels for the respective parties and also perused the\r\njudgments of the Courts below, the points which arise for my\r\nconsideration are:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\ni) Whether the concurrent findings recorded by\r\nboth the Courts below in convicting the petitioners\r\noffences punishable under Sections 39, 40 and\r\n46(B) and 51 of the Wild Life Protection Act, 1972\r\nare sustainable? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>ii) Whether the petitioners have made out\r\ngrounds to interfere with the concurrent findings\r\nrecorded by both the Courts below for conviction?</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. This Court being a Revisional court, having regard\r\nto the scope and limits envisaged to appreciate the facts and\r\nlaw, it is necessary to have a cursory look upon the evidence\r\nand also the law, to ascertain as to whether any illegality or\r\nperversity or error committed by the Courts below in recording\r\nthe conviction.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n13. Considering the submission of the learned counsel\r\nfor the petitioners, it is appropriate to refer the provisions of\r\nSection 55 of the Act, which read thus:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“55. Cognizance of offences.—No court shall take\r\ncognizance of any offence against this Act except\r\non the complaint of any person other than—</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>(a) the Director of Wild Life Preservation or any\r\nother officer authorised in this behalf by the\r\nCentral Government; or</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>[(aa) the Member-Secretary, Central Zoo\r\nAuthority in matters relating to violation of the\r\nprovisions of Chapter IVA; or] </b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>[(ab) Member-Secretary, Tiger Conservation\r\nAuthority; or</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>(ac) Director of the concerned tiger\r\nreserve; or]\r\n(b) the Chief Wild Life Warden, or any other\r\nofficer authorised in this behalf by the State\r\nGovernment [subject to such conditions as may\r\nbe specified by that Government]; or</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>[(bb) the officer-in-charge of the zoo in respect of\r\nviolation of provisions of section 38J; or]</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n(c) any person who has given notice of not less\r\nthan sixty days, in the manner prescribed, of the\r\nalleged offence and of his intention to make a\r\ncomplaint, to the Central Government or the\r\nState Government or the officer authorised as\r\naforesaid.”</span><span style=\"font-size: 12pt;\"> </span></i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. On perusal of the above said provision, it is\r\nneedless to say that, the complaint should have been filed by\r\nthe authorized officer as stipulated under Section 55 of the Act\r\nand the Trial Court should have taken the cognizance based on\r\nthe complaint lodged by the authorized officer.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. In the present case, the Trial Court took cognizance\r\nof the offence on 01.12.2005 based on the charge sheet <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">submitted by the jurisdictional police, which appears to be\r\nerroneous, illegal and unsustainable.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n16. The Courts below should have acted diligently while\r\napplying the law and its provision. The Trial Court committed\r\nan error in recording the conviction, even though, the\r\nmandatory provision was not complied. The Appellate Court\r\nalso committed serious error in not applying the mind properly\r\nwhile confirming the judgment of conviction passed by the Trial\r\nCourt. Having considering the error committed by the Courts\r\nbelow, interference by this Court is justified and the concurrent\r\nfindings required to be set aside.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>17. In the light of the observations made above, the\r\npoints which arose for my consideration are answered as\r\nunder:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> Point No.(i) - “Negative”</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> Point No.(ii) - “Affirmative”</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) The Criminal Revision Petitions are allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '782af1be678afe4384e39c26b2047dd4.jpeg', '7e8d6faebbeb90de03898a2d1424e2db.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-22', 1, '', '', '2023-07-21 12:58:40', '2023-07-22 06:58:23'),
(3231, 'cv9OdKmw4Pb8xZctxrmM6JFli', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit regarding public trust. It is not necessary that the plaint with documents shall be filed only after the leave is granted. The Court can form an opinion to grant leave on going through the pleadings. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Guru Sarvabhuwma Trust and others Vs Vasudevrao and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular First Appeal 200121 of 2017 decided on 6 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice N.S. Sanjay Gowda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Vasudevrao and five others instituted a suit seeking\r\nfor a declaration that the Trust Deed dated 02.02.2009\r\nwas null and void and the same was prepared without\r\nframing any scheme. They sought for directions to be\r\nissued for framing a scheme for the administration of the\r\nTrust called ‘Guru Sarva Bhumma Trust’.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. They also sought for a direction to be issued to\r\ndefendant nos.2 to 4 to produce all accounts, papers and\r\nvouchers relating to the Trust and to render accounts of\r\nthe Trust. A declaration was also sought for that the Trust\r\nDeed dated 09.09.1982 and the Supplementary Trust\r\nDeed dated 07.10.2008 was subsisting in respect of the\r\nTrust and lastly they sought for a declaration that removal </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of Vasudevrao from the Trusteeship was illegal and\r\nwithout authority of law.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. Having regard to the contentions advanced by the\r\nlearned Counsel for both parties, the point that would arise\r\nfor consideration in this appeal is :</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>Whether the Trial Court was justified in directing\r\nthe registration of a fresh supplementary Trust\r\nDeed by including the four persons named in\r\nthe joint memo that had been filed in\r\nW.P.No.80614/2009, and thereby inducting\r\nplaintiff no.1-Vasudevrao as a Trustee? </i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>35. Section 92 of CPC1\r\n states that a suit complaining pf a\r\nbreach of any express or constructive Trust, can be\r\ninstituted by two or more persons having an interest in the\r\nTrust, only after leave of the court had been obtained. In\r\nthis regard, it would be necessary to extract Rule 16-A of\r\nthe Karnataka Civil Rules of Practice, 1967, which deals\r\nwith an application seeking leave of the court under\r\nSection 92 of the CPC. Rule 16-A reads as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> <i>“16-A(1) An application, seeking leave of the court\r\nto file a suit under section 92 of the code, shall be\r\nmade by two or more persons having an interest in\r\nthe trust.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i> (2) such an application shall be accompanied by a\r\ncopy of the plaint proposed to be filed</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n (3) such an application shall be treated as an\r\nindependent and substantive application and be\r\ndesigned as miscellaneous petition.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n (4) An application seeking leave to file a suit under\r\nsection 92 of the code shall, be disposed of by the\r\nprincipal judge or in his absence the senior most\r\njudge of the court after giving an opportunity of\r\nleaving to the applicants:\r\n Provided that if the court considers necessary to\r\nhear the opposite party also, the court may order\r\nissue of notice to the opposite party and pass orders\r\non the application after giving an opportunity of\r\nhearing to both the parties.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i> (5) when the leave is granted by the court as\r\nsought for, the suit shall be deemed to have been\r\ninstituted on the date of filing of miscellaneous\r\npetition, provided persons who have obtained leave,\r\npay the requisite court fee on the plaint within the\r\ntime granted by the court.” </i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36. As could be seen from the said Rule, the application\r\nis required to be accompanied by a copy of the plaint\r\nwhich is proposed to be filed and an application so filed is\r\nrequired to be treated as an independent and substantive\r\napplication and would be designated as a miscellaneous\r\npetition. It also contemplates that the application seeking\r\nleave would have to be disposed off by the Principal Judge\r\nafter giving an opportunity of hearing to the applicants.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>37. The proviso to Rule 16-A(4) states that if the Court\r\nconsiders it necessary to hear the opposite party, it may\r\norder issue of notice to opposite party and pass orders on\r\nthe application seeking leave after hearing both the\r\nparties. It is thus clear that the persons in charge of the\r\nTrust or the Trust cannot claim as a matter of right that\r\nthey a right to be heard before the Court grants leave. In\r\nfact, the language of the proviso, indicates that a\r\ndiscretion is vested in the Court to hear the persons in\r\ncharge of the Trust before considering the application for\r\ngrant of leave to institute the suit.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>39. It must be stated here that the Apex Court in the\r\nsaid decision has clearly stated that the objective\r\nunderlying Section 92 of CPC and by the use of the\r\nlanguage thereof, it would be a rule of caution that the\r\nCourt should normally, unless it is impracticable or\r\ninconvenient to give notice to the proposed defendant\r\nbefore granting leave. The Apex Court has also held that\r\nthis procedure was essential to ensure that frivolous\r\nplaints are not entertained in a mechanical manner.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>40. It is to be stated here that the proviso to Rule 16-\r\nA(4) of the Rules basically reflect the same intent as\r\ndeclared by the Supreme Court and the proviso confers a\r\ndiscretion on the Court to hear the opposite party before it <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">considers the application for grant of leave. It cannot\r\ntherefore be said that in the light of Rule 16-A (4) of the\r\nRules and its proviso, the Court is bound to hear the\r\nopposite party complusorily before it considers the\r\napplication for grant of leave.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>41. It may also be pertinent to state here that the\r\nmandate of sub-rule (5) of Rule 16-A of the Rules is that\r\nthe plaint that accompanies the application is deemed to\r\nhave been instituted on the day of filing of the\r\nmiscellaneous petition if the Court decides to grant leave.\r\nThis essentially means, in law, the suit is deemed to have\r\nbeen instituted on the day the application for grant of\r\nleave is granted, though only a copy of the proposed plaint\r\nwas required to be filed along with the application.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n42. As noticed above, the application seeking for grant of\r\nleave is to be accompanied by a plaint and it is obviously\r\nonly on a reading of the plaint, the Court can form an\r\nopinion, as to whether leave should or should not be\r\ngranted. The effect of Rule 16-A (5) of the Rules is that </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the moment the Court decides to grant leave, the suit is\r\ndeemed to have been instituted and the date of institution\r\nis the date on which the application for grant of leave had\r\nbeen filed along with a copy of the proposed plaint. This\r\nindicates that though the proposed plaint is filed into Court\r\nalong with the application for grant of leave, in law, it is\r\ndeemed to have been instituted on the day leave was\r\ngranted by the Court. It, therefore, also follows that until\r\nleave is granted, the plaint is on record only for the\r\npurpose of enabling the Court to form an opinion.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n43. In this case, no doubt, the registry of the Trial Court\r\nhas mechanically registered the suit and placed it before\r\nthe Court and the Court has in turn issued suit summons\r\nand also notice on the application for grant of leave. In my\r\nview, this is a mere irregularity which in no way prejudiced\r\nthe defendants. This is because, in law, the suit is deemed\r\nto have been instituted only on the leave being granted\r\nand the mere registration of the suit or issuance of notice\r\ncannot be considered as the suit being instituted under </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 92 of CPC. In the light of this legal position, the\r\nargument of the learned counsel does not hold water.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>45. Reliance placed upon the decision of a Co-ordinate\r\nBench would also be of no avail since this Court has held\r\nthat unless leave is granted, the Court has no jurisdiction\r\nto entertain the suit and in this case, admittedly leave had\r\nbeen granted before the merits of the claim in the suit was\r\nentertained.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>46. As noticed above, in this particular case, the Trial\r\nCourt did grant leave before it considered the claim of the\r\nplaintiffs and the defence of the defendants. The Trial\r\nCourt embarked upon the determination of the merits of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the suit only after it granted leave. Having regard to the\r\nmandate of Rule 16-A(5) of the Rules, it cannot be said\r\nthat the suit had been instituted without grant of leave.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>48. A Trust was created under the Trust Deed dated\r\n09.09.1982 which was followed by creation of a\r\nsupplementary Trust Deed on 07.10.2008 under which\r\nDonderao – defendant no.2 was omitted from the\r\nTrusteeship.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>49. Donderao, in turn, instituted a suit in\r\nO.S.No.475/2008 challenging the execution and\r\nregistration of the supplementary Trust Deed dated\r\n07.10.2008. In the said suit, his request for grant of a\r\ntemporary injunction to restrain the other Trustees from\r\ninterfering with the affairs of the temple was rejected<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>53. As could be seen from the joint memo as well as the\r\norder passed by this Court, both the parties to the dispute\r\nincluding defendant no.2 – Donderao categorically agreed\r\nthat along with the existing Trustees, the four persons\r\nnamed in the joint memo would also be Trustees of the\r\nTrust. It cannot be in dispute that plaintiff no.1 was one <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">among the four persons named as Trustees and it cannot\r\nalso be in dispute that it had been agreed upon that the\r\nthree petitioners in W.P.No.80614/2009 and the sole\r\nrespondent therein, (i.e., in all three) would be the\r\nManaging Trustees of the Trust and the original Trust Deed\r\nwould be amended in the above terms.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">54. As could be seen from the order of this Court, the\r\njoint memo was taken on record and the writ petition was\r\ndisposed off in terms of the joint memo. The effect of this\r\nparticular order is that the four persons named in the joint\r\nmemo would have to be considered as the Trustees of the\r\nTrust along with the three petitioners and the sole\r\nrespondent and the Trust Deed existing as on that date\r\nwould have to be necessarily amended to bring it in\r\nconformity with the terms of the joint memo.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>59. It is also to be stated here that a suit under Section\r\n92 of CPC is essentially a suit to ensure that a Public Trust\r\nis managed to ensure that the objectives of the Trust are\r\nfulfilled and thereby public interest is safeguarded. In such\r\na proceeding, the individual rights of Trustees would be\r\nsecondary and the important aspect to be considered\r\nwould be the fulfillment of the objectives of the Trust.\r\nSince a statement was made before this Court that the\r\nobjectives of the Trust would be safeguarded by bringing\r\nan end to the litigation and including the four persons\r\nmentioned in the joint memo, the interest of the Trust was\r\nbasically being safeguarded. The argument, therefore, that\r\nonly the parties to the writ petition could have grievance <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of non adherence to the terms of the joint memo is\r\nunsustainable.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>60. I am, therefore, of the view that there is no merit in\r\nthis appeal and the appeal is, therefore, dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '550180a2c7898fd0b5b6fc3f48c97dc6.JPG', '27fe4c49f889cc43172e12d924492d49.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-24', 1, '', '', '2023-07-21 13:42:45', '2023-07-24 13:44:15'),
(3223, '9CE8PpRLXIk04myTSTOrmIpDR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Judgment of the foreign Court is not executable in India if the same is not on merits. Even when the defendant is placed exparte, the judgment ought to be the one based on evidence led by the plaintiff. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Karnataka State Road Transport Corporation Vs Nigel Roderick Llyod Harradine.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 453 of 2017 decided on 14 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The factual matrix of the case of the petitioner is that the decree holders claim that on 18.03.2002 they were traveling in a car bearing registration No.KA-04-A-1937 driven by a driver by name one Sri Ravi. The said car was heading from Mysuru to Gundlupet. A KSRTC bus bearing registration No. KA-01-F-7028 was moving from Gundlupet to Nanjangud. When both the vehicles were moving in the opposite direction, the accident was taken place. It is alleged that the said car was engaged for transportation by M/s. Somak Travels Limited. Hence, they have preferred the claim in respect of alleged accident before the Exeter Country Court, United Kingdom. The foreign Court allowed the claim petition and directed to pay the compensation. The decree holders on account of non-payment of compensation, filed the execution petition in <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Ex.No.1860/2011. The judgment debtor i.e., the revision petitioner herein, filed an application under Section 47 of CPC praying the Court to hold the decree (under execution) is not executable in law.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. Having hearing the respective learned counsel and also on perusal of the material available on record, the points that arise for the consideration of this Court are:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i) Whether the order passed by the Trial Court on I.A.No.4 in dismissing the application, suffers from legality and its correctness?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) What order? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Point No.(i)</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">20. Having heard the learned counsel appearing for the respective parties it discloses that there is no dispute that the accident was taken place in between Mysuru and Gundlupet road and also it is not in dispute that the vehicle was provided to the claimant by M/s Somak Travels Limited. It is the claim of the Judgment Debtor that claim was made before the Exeter Country Court, United Kingdom. Having perused the material on record it discloses that the revision petitioner himself admitted in paragraph 8 of the petition that notice was served on the petitioner herein through a counsel Sri Aditya Sondhi and also it is stated that the petitioner herein sent the statement of objection along with a letter to the said advocate stating that the said Court has no jurisdiction to try a claim for damages in respect of the accident which has occurred in India. The counsel for the Decree Holders also produced a copy of the letter of service of notice against the Judgment Debtor and also the copy </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of reply of the revision petitioner herein which is sent through the counsel according to the revision petitioner and the reply is also signed by one Krishnaiah who is the Chief Law Officer of defendant No.2 dated 06.09.2005. On perusal of the order dated 18.01.2006 wherein ordered defendant No.2 to pay the claimants costs in a sum of £1,702.58 and application is dismissed and also it reveals that the order from Ashford County Court dated 22.02.2007 ordering damages to be paid by defendant No.2 to the first claimant in a sum of £31431.33 plus interest of £1970.42 and £6785.50 plus interest of £421.36 in respect of the second claimant and also ordering defendant No.2 to pay the claimant’s costs in a sum of £13,004.76 vide order dated 30th March 2007. The said orders are confirmed by the District Judge vide order dated 12th August 2010 saying that the said orders are not settled in full or in part.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>22. The counsel for the petitioner also relied upon the judgment of different High Courts of India i.e., High Court of Punjab and Haryana in a case of GURDAS MANN AND OTHERS referred supra wherein also the Court considered Section 13(b) with regard to the decree of Foreign Court and observed that there is a bar when an order is not passed on merits and decree passed exparte merely on pleadings of plaintiff and because defendant did not choose to appear, no oral or documentary evidence produced by the plaintiff, decree not on merits, hence, cannot be executed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. Having perused the orders of the Foreign Court also nothing is discussed with regard to whether statement of objections sent through an advocate through whom notice was served was part of the records or not and also not discussed anything about the objection raised with regard to no jurisdiction is concerned and hence, it is clear that the said order is not executable since the same is not on merits.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. In the judgment of the Goa High Court in the case of SAGOON JAYAIDEE DHOND referred supra also discussed with regard to settled principle of international law that owing to the principle of territorial sovereignty a judgment delivered in one country, in the absence of international agreement, cannot have a direct operation of its own in another. But no material is placed on record to show whether there is any international agreement and the said ground is also not urged in the revision petition, but only contended that the order is not by the competent Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. In the case of ALGEMENE BANK NEDERLAND referred supra the Bombay High Court while discussing the ratio laid down by the Privy Council in Keymer’s case held that it seems to have been given exparte on the basis of the plaintiff’s pleadings and documents tendered by the plaintiff without going into the controversy between the parties since the defendant did not appear at the time of hearing of the suit to defend the claim. It is also held that therefore, it is not a judgment on merits and the same cannot be executable<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">26. This Court also would like to refer the judgment of the Apex Court reported in AIR 2001 SC 2134 in the case of M/S. INTERNATIONAL WOOLLEN MILLS vs M/S. STANDARD WOOL (U.K) LTD., wherein the Apex Court considered Section 13(b) of CPC regarding Foreign judgment is concerned. If exparte decree is passed, the same cannot be presumed to be on merits. Section 114 merely raises the presumption, under Illustration (e) of Evidence Act and also held that under Section 44A, if any Foreign judgment enforcement in India, judgment must be on merits and also discussed that exparte judgment, when can be said to be on merits it cannot be said that the expression ‘judgment on the merits’ implies that it must have been passed after contest and after evidence had been let in by both sides. An exparte judgment in favour of the plaintiff may be deemed to be a judgment given on merits if some evidence is adduced on behalf of the plaintiffs and the judgment, however, brief, is based on a consideration of that evidence. Where however no evidence is adduced on the plaintiff’s side and his suit is decreed merely because of the absence of the defendant either by way of penalty or in a formal manner, the judgment may not be one based on the merits of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the case. Having considered the principles laid down in the aforesaid judgment of the Apex Court, it is very clear that if judgment is passed, even it is exparte, not on evidence, the same cannot be held that the order is passed on merits.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. This Court also would like to refer the judgment of the Apex Court reported in (2017)2 SCC 253 in the case of ALCON ELECTRONICS PRIVATE LIMITED vs CELEM S.A. OF FOS 34320 ROUJAN, FRANCE AND ANOTHER and in this judgment also the Apex Court discussed Section 44A which has been discussed by the Trial Court in this proceedings. The Apex Court discussed with regard to the judgment on merits and also taken note of the decree as per Explanation 2 to Section 44A and held that a judgment is considered as judgment on merits, an <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">opportunity is extended to the parties to a case to put forth their case and after considering rival submissions Court gives its decision in the form of an order or judgment. It is also important to note that the Apex Court also discussed Section 13 and 44A with regard to execution of foreign judgment/decree and an enquiry by executing Court when not permissible and held that once an order or decree is obtained after following due judicial process by giving reasonable notice and opportunity to all proper and necessary parties to put forth their case, executing Court cannot enquire into validity, legality or otherwise in the said judgment, scope and purpose of Section 44A is also discussed and execution of decrees passed in reciprocating territories held that Section 44A has been inserted to give effect to the policy contained in Foreign judgments (Reciprocal Enforcement) Act, 1933 by conferring an independent right on a foreign decree-holder who obtained a decree from a Court in reciprocating territory for enforcement of said decree/order in India, for the purpose of Section 44A, England is a reciprocating territory.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. No doubt, the Trial Court also invoked Section 44A of CPC. The Trial Court while invoking Section 44A comes to the conclusion that the same can be enforced in India for the purpose of Section 44A but fails to take note of the fact that the judgment of the foreign Court is not on merits. No doubt, admittedly, notice was given and the same was served through an advocate and revision petitioner also claims that they sent the reply and the same is not forth coming in the order of the foreign Court and nothing is discussed in the order even for the objection which has been raised and the same is not on merits as held by this Court.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30. Having perused the principles laid down in the judgments of Bombay High Court, Punjab and Haryana High Court as well as the Apex Court, I have pointed out that the judgment and decree which is sought for enforcement in India is not passed on merits. When such being the circumstances, the same is not enforceable.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. No doubt, it is clear that a “foreign judgment” is defined under Section 2(6) as judgment of a foreign Court. “Judgment” as per Section 2(9) of CPC means the statement <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">given by the Judge on the grounds of a decree or order. Order is defined under Section 2(14) of CPC as a formal expression of any decision of the civil Court which is not a “decree”. Then Explanation 2 to Section 44A(3) says “decree” with reference to a superior Court means any “decree” or “judgment”. As per plain reading of the definition “judgment” means the statement given by the Judge on the grounds of decree or order and order is a formal expression of a Court. Thus, “decree” includes judgment and “judgment” includes “order”. On conjoint reading of “decree”, “judgment” and “order” from any angle, the order passed by the English Court falls within the definition of “order” and therefore, it is a judgment and thus becomes a “decree” as per Explanation 2 to Section 44A CPC. But in the case on hand, taking into note of the material on record it discloses that the Court has not followed the principles of natural justice while recording the reasons and very importantly, basing on the application of the appellant itself, conclusively decided the issue with regard to jurisdiction and passed the order coupled with costs hence, the order passed by the foreign Court is not conclusive and not on merits and hence, the same cannot be executable. The records also reveals that notice was served </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">through an advocate and reply was sent and the same was not considered in the order. Hence, I answer point No.(i) as affirmative for the reason that the judgment of the foreign Court is not executable since the same is not on merits and it suffers from its legality and correctness and hence, the revision petition requires to be allowed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(ii)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The revision petition is allowed. Consequently, the application filed under Section 47 of CPC before the Trial Court is allowed and the decree under execution is not executable in law as the same is not on merits. </b></p>', '5428e957b8d205350f0c59277b4fff39.jpeg', 'afd0d2aea923968a8fdffdb285cc7c4c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-20', 1, '', '', '2023-07-20 08:55:12', '2023-07-20 08:57:00');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3224, 'zDqW32C40Of3drFcwfjxcDl8h', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Section 319 Cr.P.C. Power to proceed against other persons appearing to be guilty of offence. Karnataka High Court upholds summoning of the Senior Sub-Registrar for the alleged fraud in the registration of gift deeds. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Raghavendra A Vs The State and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 11639 of 2023 decided on 28 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court calling in question\r\norder dated 20-04-2023 passed by the Chief Metropolitan\r\nMagistrate, Bengaluru in C.C.No.11657 of 2017 by which the\r\npetitioner is sought to be dragged into the case on an\r\napplication filed by the prosecution under Section 319 of the\r\nCr.P.C.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts, in brief, adumbrated are as follows: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The petitioner at the relevant point in time was working\r\nas Senior Sub-Registrar, Basavanagudi Division, Bengaluru.\r\nWhen so functioning, the petitioner is said to have registered\r\ngift deeds brought before him in terms of the Act and the Rules\r\ni.e., Registration Act, 1908 and the Karnataka Registration\r\nRules, 1965. The petitioner leaves the post after having <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">worked for two years at the said place. After the petitioner\r\nmoving out of the said post, a private complaint comes to be\r\nregistered by one B.N. Sreekantaswamy, the complainant\r\nagainst members of the family as also the petitioner who was\r\narrayed as accused No.4. The learned Magistrate refers the\r\nmatter under Section 156(3) of the Cr.P.C., for investigation at\r\nthe hands of the jurisdictional Police. This, then becomes a\r\ncrime in Crime No.195 of 2016 for offences punishable under\r\nSections 463, 464, 465, 468, 471, 420 r/w 34 of the IPC. The\r\nPolice conduct investigation and lay a charge sheet against all\r\nthe accused except the petitioner. To say that the petitioner\r\nwas dropped from the array of accused, the police did not file\r\nany charge sheet against him but cited him as a witness – CW7.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The other accused, on the ground that the petitioner\r\nhad been dropped from the array of accused, knocked at the\r\ndoors of this Court seeking quashment of entire proceedings on\r\nthe ground that the issue was purely civil in nature. The other\r\naccused were accused Nos. 1 to 3 who filed Criminal Petition\r\nNo.8744 of 2018. The said petition was dismissed by a coordinate Bench of this Court on 14-03-2023 holding that it was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">a matter of trial for those accused to come out clean. While so\r\ndoing, the Co-ordinate Bench reserved right in the prosecution\r\nto proceed against the petitioner under Section 319 of the\r\nCr.P.C., subject to all statutory compliance. The petitioner who\r\nwas cited as a witness in the proceedings was permitted to be\r\nbrought in as an accused subject to statutory compliance that\r\nis necessary for invoking and allowing an application under\r\nSection 319 of the Cr.P.C. Pursuant to the order passed by this\r\nCourt, an application came to be filed by the prosecution under\r\nSection 319 of the Cr.P.C., quoting the order passed by this\r\nCourt to array the petitioner as accused instead of him being a\r\nwitness – CW-7. The concerned Court by its order dated 20th\r\nApril, 2023 issues notice to the petitioner on the application\r\nmade by the prosecution to arraign him as accused No.6 in the\r\naforesaid case. The moment notice is issued, the petitioner has\r\nknocked at the doors of this Court in the subject petition.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. I have given my anxious consideration to the\r\nsubmissions made by the respective learned counsel and 2nd\r\nrespondent and have perused the material on record. In\r\nfurtherance whereof, the issue that falls for consideration is,\r\n‘whether there was sufficient material against the\r\npetitioner to invoke Section 319 of the Cr.P.C. and bring\r\nin him as accused No.6 in place of him being a witness –\r\nCW-7’.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. On the bed rock of the aforesaid principles elucidated\r\nby the Apex Court the case at hand requires to be noticed. The\r\npetitioner as Sub-Registrar goes to private attendance to the\r\nhouse of Smt. B.N. Sharadamba who executes two gift deeds\r\non 11-03-2013 and 14-03-2013 – one in favour of\r\nSmt.B.N.Parvati, her sister and another in favour of her mother\r\nB.N.Kamalamma. The petitioner is said to have secured thumb\r\nimpressions of Smt. B.N.Sharadamma on those gift deeds and\r\nis said to have registered the same in the private residence.\r\nThe complainant is the brother of Smt. B.N.Sharadamba who\r\nhas a claim over the property and by executing the gift deeds,\r\nthe submission of the 2nd respondent is that, several other\r\nrights are created without the knowledge of the complainant,\r\nall because of the act of the petitioner in registering those gift\r\ndeeds. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. The documents produced would indicate that\r\nSmt. B.N. Sharadamba, the executants of the gift deeds on the\r\nparticular days i.e., between 11-03-2013 and 14-03-2013 for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">three days was hospitalized. Therefore, the issue is where did\r\nthe petitioner take thumb impression of Smt. B.N.Sharadamba,\r\nas Smt. B.N.Sharadamba was hospitalized on those days on\r\nwhich she is said to have executed gift deeds. Alleging this foul\r\nplay, the 2nd respondent registers a complaint once he comes\r\nto know of the fact of spiraling rights being created and his\r\nrights being taken away on the strength of gift deeds executed\r\nby his sister, as legal notices were caused upon the\r\ncomplainant with regard to the rights of Smt. B.N. Parvati and\r\nSmt. B.N.Kamalamma. All these, the complainant comes to\r\nknow after the death of Smt. B.N. Sharadamba, the executant\r\nof the gift deeds. It is, therefore, the said private complaint\r\ncomes to be registered. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The private complaint has narration of minute details of\r\nwhat has happened. The petitioner Sub-Registrar is said to\r\nhave visited the house of Smt. B.N. Sharadamba on 12-03- </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2013 on which date she is said to have executed the gift deeds\r\nwhich are registered by the petitioner. Copious documents are\r\nappended to the private complaint demonstrating Smt. B.N.\r\nSharadamba was in the hospital between 11-03-2013 to\r\n14-03-2013. Therefore, the claim of the petitioner/SubRegistrar that he had visited the house of the executant is\r\nrendered farther from truth, prima facie. It is nobody’s case\r\nthat the Sub-Registrar visited the hospital and has taken the\r\nsignatures/thumb impressions in the hospital. It is the specific\r\ncase of the petitioner that he has visited the residence for\r\nprivate attendance at the time when the executant was in the\r\nhospital. Therefore, the question that arises is from whom,\r\nwhere and when the petitioner took the signature of\r\nSmt. B.N. Sharadamba. It is the emphatic submission that it\r\nwas not in the hospital. If that be so, from whom he has taken\r\nthe signatures or is it a fraud is a matter that had to be tried.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">14. The learned Magistrate refers the matter for\r\ninvestigation which becomes a crime in Crime No.195 of 2016.\r\nThe Investigating Officer drops the petitioner from the array of\r\naccused and makes him a complainant’s witness – CW-7 and\r\ndraws up a charge sheet against all other accused. Accused 1 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">to 3 therein knock at the doors of this Court seeking\r\nquashment of entire proceedings. This Court dismisses\r\nCriminal Petition No.8744 of 2018 filed by them by the\r\nfollowing order:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“10. It is not in dispute that certain property\r\nbelonged to Smt. B. N. Sharadamba, which she\r\nderived at a partition reported in\r\nO.S.No.608/1985. This property is the cause for\r\nthe controversy. The respondent No.1 claimed that\r\nSmt. B.N. Sharadamba was admitted in the\r\nhospital and was not in a position to execute any\r\ndocument and also was not in a position to\r\ncomprehend her action. He alleged that taking\r\nadvantage of the situation and in order to grab the\r\nproperty, the accused No.1 in conspiracy with the\r\naccused Nos.2 and 3 had created a document to\r\nseem as if Smt. B.N. Sharadamba had executed a\r\ngift deed in, favour of the accused No.1. CW.7 toed\r\nthe line by endorsing on the document that he has\r\nvisited Smt. B.N. Sharadamba at her residence and\r\ntaken her signature and thumb impression in her\r\nresidence and thereafter, registered the\r\ndocument. The aforesaid is a pure question of fact\r\nthat has to be tried before the Trial Court and\r\ncertainly not in a petition under Section 482 of\r\nCr.P.C. It is for the accused to establish before the\r\nCourt that the signature and thumb impression on\r\nthe gift deed was in fact the signature and thumb\r\nimpression of Smt. B.N. Sharadamba and that the\r\nsaid thumb impression and signature were made\r\nnot when she was at the hospital but when she\r\nwas at her residence.</span><span style=\"font-size: 12pt;\"> </span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>Hence, this criminal petition lacks merit and is\r\ndismissed.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>The right of the Trial Court to proceed against\r\nCW.7 under Section 319 of Cr.P.C. is kept open,\r\nsubject to statutory compliance. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The observations made by the co-ordinate Bench forms\r\nthe nucleus of the issue of dragging the petitioner back into the\r\nweb of crime as accused No.6. The co-ordinate Bench reserves\r\nright of the trial Court to proceed against CW-7/petitioner\r\nunder Section 319 subject to statutory compliance. The\r\nstatutory compliance is the law that is laid down by the Apex\r\nCourt in the afore-quoted judgments. The co-ordinate Bench\r\nwhile dismissing the petition filed by other accused clearly\r\nobserves that Smt. B.N. Sharadamba who was no more then is\r\nsaid to have executed the gift deeds on 12-03-2013 when she\r\nwas in the hospital and not in a position to execute any\r\ndocument. It further observes that the petitioner has toed the\r\nline by endorsing on the documents that he has visited\r\nSmt. B.N. Sharadamba at her residence at the time when she\r\nwas in the hospital. Therefore, the coordinate Bench dismissed\r\nthe petition filed by other accused.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. In the teeth of the aforesaid facts and on the face of\r\nunequivocal statement of the petitioner that he has visited the\r\nhouse of the executant/Smt. B.N.Sharadamba, he has to prove\r\nit in a trial as documents galore that Smt. B.N.Sharadamba on\r\nthat very day was in the hospital and was not in a position to\r\nexecute any document. Therefore, this would be circumstance\r\nenough for the trial Court to have brought in the petitioner\r\nback into the web of crime. In the considered view of this\r\ncourt, the petitioner ought not to have been dropped from the\r\narray of accused when the charge sheet was filed, as it was a\r\nclassic case where the petitioner has to come out clean in the\r\ntrial. Therefore, the submission of the learned counsel for the\r\npetitioner that he has been without rhyme or reason dragged\r\nback into the web of crime as an accused, thus deserves to be\r\nrepelled.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. The submission made by the learned counsel for the\r\npetitioner that the very private complaint was not maintainable\r\nas it did not accompany an affidavit is again noted only to be\r\nrejected as there is fundamental fallacy in the said submission.\r\nThis Court is not examining the veracity of the private <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">complaint at this juncture but the veracity of the order dated\r\n20-04-2023 passed on the application of prosecution under\r\nSection 319 of the Cr.P.C. Much water has flown beneath the\r\nbridge after the initiation of proceedings, for this Court to put\r\nthe clock back to 2016, accepting the submission of the\r\npetitioner that the private complaint did not accompany an\r\naffidavit. Prima facie there are materials against the petitioner\r\nfor the act that he has committed. It is therefore, for him to\r\ncome out clean in full blown trial.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>17. For the aforesaid reasons, finding no merit in the\r\npetition, the petition stands rejected.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>It is made clear that the observations made in the course\r\nof this order is only for the purpose of consideration of the case\r\nof the petitioner under Section 482 of Cr.P.C. and the same\r\nshall not bind or influence any other proceeding that the\r\npetitioner would avail of, in law, if any.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'cfdef8cc075135a3f113a59c8d9400b2.jpeg', 'f3d9ec4a45947b6edb07dfcbca28dab4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-21', 1, '', '', '2023-07-20 13:15:58', '2023-07-21 10:32:52'),
(3232, 'CbC5btMHN9SAYfdZ9L7TPUapv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Public Premises (Eviction of unauthorized occupants) Act is not a bar for the public authority to file for eviction against a dismissed employee seeking possession of the service quarters. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Karnataka Power Corporation Limited and others Vs R T Hegde.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 236 of 2017 decided on 17 April 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. The factual matrix of the case of the plaintiffS\r\nbefore the Trial Court is that the respondent/defendant\r\nwas an employee of plaintiffs’ authority since 2000 and he\r\nwas allotted with a quarters i.e., the suit schedule\r\npremises for his residence during the period of his\r\nemployment. The defendant had committed an act of\r\nmisconduct i.e., unauthorised absence to the duty without <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sanctioning of leave and hence, as per the order of K.P.C.\r\nLimited which is binding on both the employer and\r\nemployee, domestic enquiry was conducted after issuance\r\nof notice to the defendant. In the enquiry, he did not\r\nappear inspite of receiving notice hence, he placed\r\nexparte. On 20.04.2009, the defendant got dismissed\r\nfrom the service as per the procedure as his misconduct\r\nwas proved in the enquiry. As per rules of K.P.C. Limited,\r\nthe defendant ought to have vacated the schedule\r\npremises within one month of his dismissal order. But he\r\ndid not vacate the schedule premises inspite of service of\r\nseveral notices. The suit schedule premises is a very old\r\npremises and it is likely to collapse at any time. Plaintiffs’\r\nauthority has decided to dismantle all the houses situated\r\nat Kargal K.P.C. colony and to that effect, steps have been\r\ntaken. Inspite of issuance of several notices on\r\n26.05.2009, 30.04.2010 and 21.12.2010, the defendant\r\ndid not vacate the schedule premises. After service of\r\nnotice dated 21.12.2010, the defendant has filed a suit in\r\nO.S.No.16/2011 before the Trial Court for the relief of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">permanent injunction which is still pending for\r\nconsideration. The defendant has no reason to continue in\r\nthe schedule property as he is a dismissed employee. As\r\nthe defendant has not vacated the schedule property\r\nwithin one month of his dismissal, he is liable to pay penal\r\nrent as long as he occupies the house. Hence, the\r\nplaintiffs have filed the suit.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. The learned counsel for the apps vehemently\r\ncontend that the First Appellate Court committed an error\r\nin setting aside the judgment and decree of the Trial Court\r\nand ignored Section 16 of the Act of 1974 and the very\r\napproach of the First Appellate Court is erroneous. It is\r\ncontended that the finding of the First Appellate Court\r\nvirtually permits the respondent to continue to be in illegal\r\npossession until he is evicted by appellants by taking\r\nrecourse to the provisions of the Act of 1974. The counsel\r\nbrought to notice of this Court to the judgment of Division\r\nBench of this Court in the case of C BHASKAR vs STATE\r\nOF KARNATAKA reported in (1995) 5 KANT LJ 69 (DB)\r\nwherein this Court held in paragraph 13 that it is\r\nabsolutely clear that the bar of jurisdiction of a Civil Court\r\nis only in regard to any dispute arising out of the action\r\ntaken by the competent authority under the Act to evict\r\nthe licencee from the public premises. The prohibition\r\ncontained in Section 16 will apply only to any action taken\r\nunder the Act or in regard to any order passed in\r\npursuance to the Act and contend that no action or any <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">proceeding under the Act is challenged in this suit. The\r\ncounsel vehemently contends that First Appellate Court\r\nought to have considered the fact that the respondent\r\ncannot squat on the public property and continue to be in\r\nlawful possession. The First Appellate Court ought not to\r\nhave permitted the respondent to contend that he has\r\nbeen in lawful possession of the suit schedule property.\r\nThe First Appellate Court failed to consider the bar under\r\nSection 16 of the Act of 1974 is applicable only in respect\r\nof any proceedings initiated under the provision of the Act\r\nof 1974. Admittedly, the appellants did not take recourse\r\nto the provisions of the Act and they could not have\r\npursued their remedy under the Act in the absence of\r\ncompetent authority. Accordingly, the appellants have\r\napproached the competent Court to ventilate their\r\ngrievance. Hence, the order of the First Appellate Court is\r\nliable to be set aside. The counsel for the appellants\r\nmainly brought to notice to paragraphs 18 to 20 of the\r\njudgment referred supra wherein it is held that a suit\r\nseeking a relief that the plaintiff shall not be dispossessed, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">otherwise, than in accordance with the provisions of that\r\nAct is not barred under Section 16 of the Act and Division\r\nBench of this Court held that the suit in this case is\r\nmaintainable as it does not relate to any proceedings or\r\norder initiated or passed under the Act. Hence, the very\r\napproach of the First Appellate Court is erroneous.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Having heard the respective counsel appearing\r\nfor the parties and also on perusal of the material\r\navailable on record it discloses that the suit is filed for the\r\nrelief of eviction of dismissed employee. There is no\r\ndispute with regard to the fact that the respondent was an\r\nemployee of the appellants’ authority and he was\r\nsubsequently dismissed from the service as he was\r\nunauthorised absent for several years and he did not\r\ncontest before the disciplinary authority with regard to an\r\nenquiry hence, he placed exparte and dismissal order has\r\nbeen passed. Admittedly, the said dismissal order has\r\nbeen challenged before the competent authority by the\r\nrespondent and when the said order has reached its\r\nfinality, the First Appellate Court permitting the\r\nrespondent to continue in the schedule property is nothing\r\nbut allowing of dismissed employee to be continued in the\r\npremises without paying the rent even after he dismissed\r\nfrom the service is an erroneous order. Admittedly, the\r\nrespondent was dismissed in the year 2009 and now we\r\nare in the year 2023 hence, from almost 14 years, he has  <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">been in the unauthorised occupation over the appellants’\r\nproperty without paying any rent. The First Appellate\r\nCourt has committed an error in coming to the conclusion\r\nthat Section 15 of the Act of 1974 clearly bar the\r\njurisdiction of the Civil Court to entertain any suit or\r\nproceedings in respect of eviction of any person who is in\r\nunauthorised occupation of any public premises or even\r\nfor recovery of rent. This Court in the case of BHASKAR\r\nheld that the bar under Section 16 of the Act of 1974 can\r\noperate only if the plaintiff challenges any action,\r\nproceedings or order initiated or passed under the Act. A\r\nsuit seeking a relief that the plaintiff shall not be\r\ndispossessed, otherwise, than in accordance with the\r\nprovisions of that Act is not barred under Section 16 of the\r\nAct of 1974 and the suit in this case is maintainable as it\r\ndoes not relate to any proceedings or order initiated or\r\npassed under the Act. Having considered the principles\r\nlaid down in the said judgment, it discloses that the very\r\napproach of the First Appellate Court is erroneous in\r\nallowing the appeal filed by the respondent. The material </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">available on record discloses that the respondent was an\r\nemployee of the appellants’ authority and he was\r\nunauthorised absent for several years hence, he was\r\ndismissed from the service and thereafter, the respondent\r\nchallenged the said dismissal order and the competent\r\nauthority also confirmed the order of dismissal hence, the\r\nquestion of allowing him to continue in the premises\r\nwithout making payment of rent is nothing but an\r\nerroneous order passed by the First Appellate Court hence,\r\nit requires interference and I do not find any error\r\ncommitted by the Trial Court in evicting the respondent\r\nfrom the suit schedule premises since he was dismissed\r\nfrom the service and the bar is not applicable to initiate\r\nthe proceedings against the respondent when he was\r\ndismissed from the service and for more than 14 years he\r\nis in unauthorised occupation of the suit schedule premises\r\nwithout paying rent. On perusal of order sheet of this\r\nappeal it discloses that the respondent has agreed to pay\r\nthe rent as he was paying earlier and also seeks some\r\ntime to vacate the premises. Thus, it shows that the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respondent is in unauthorized occupation of the schedule\r\npremises without paying rent from the date of his\r\ndismissal.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The appeal is allowed. </b></p>', 'f364825bfdbd3bba849417d13e0f536b.JPG', '29c9cb708d13b832ffaf83a9e940ad30.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-24', 1, '', '', '2023-07-21 14:32:17', '2023-07-24 06:46:01'),
(3233, 'D6g80YgX9nWSZCkF8cSdIm4iT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal law. To impose the extreme punishment, all the three tests; Crime test, Criminal test and Rarest rare test must be satisfied. Karnataka High Court converts imprisonment till last breath of life to life imprisonment.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Harish Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.A. 1234 of 2017 decided on 18 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Somashekar and Justice Rajesh Rai K.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">These appeals filed by the convicted accused Nos.1 and 3\r\nare directed against the judgment of conviction and order of\r\nsentence passed in S.C.No.215/2012 dated 25.04.2017 by the II\r\nAdditional District and Sessions Judge, Hassan for the offence\r\npunishable under Sections 302, 120(B), 201 r/w Section 34 of\r\nIPC wherein, accused No.1 was directed to undergo rigorous\r\nimprisonment for a period of two years and to pay a fine of\r\nRs.10,000/- for the offence punishable under Section 120(B) r/w\r\nSection 34 of IPC in default of payment of fine, he shall undergo\r\nfurther simple imprisonment of three months. Further, accused\r\nNo.1 was directed to undergo imprisonment for life i.e., till his\r\nlast breath and to pay a fine of Rs.50,000/- in default of\r\npayment of fine, he shall undergo imprisonment for a period of 2 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">years for the offence punishable under Section 302 r/w Section\r\n34 of IPC. Accused Nos.1 and 3 were directed to undergo rigours\r\nimprisonment for a period of three years and to pay a fine of\r\nRs.10,000/- each in default of payment of fine, they shall\r\nundergo three months simple imprisonment for the offence\r\npunishable under Section 201 r/w Section 34 of IPC. It is also\r\nordered that accused No.1 shall pay sum of Rs.3,00,000/- to\r\nboth the children of deceased under the provisions of 357\r\nCr.P.C., in default, they are entitled to recover the said amount\r\nfrom accused No.1 under Section 357(2) of Cr.P.C. Further, it\r\ndirected to run the entire sentence concurrently.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. Having heard the learned counsel for the appellants\r\nand the learned Additional SPP for the State, the point that\r\nwould arise for our consideration are:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>(i) Whether the judgment under these\r\nappeals suffers from any perversity and illegality?\r\nand</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n(ii) Whether the learned Sessions Judge is\r\njustified in convicting the appellants for the offence\r\npunishable under Sections 120(B), 302, 201, 203 r/w\r\nSection 34 of IPC? </i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. On careful perusal of the records, it could be seen,\r\nthe Police registered FIR in Crime No.44/2012 on 29.03.2012\r\nbased on the missing complaint lodged by accused No.2 in this <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">case. Subsequently, the Police investigated the case and they\r\ninterrogated accused Nos.1 and 2 earlier occasions. Even\r\nthough, they did not revealed the truth during the course of\r\ninterrogation, finally, on 13.06.2012 accused No.1 revealed the\r\ntruth during the course of interrogation and immediately, Section\r\n302, 201 r/w 34 IPC was invoked in the same Crime No.44/2012\r\nby registering another FIR based on suo moto requisition of the\r\nPolice Officer. As such, though a separate crime was not\r\nregistered against accused, it cannot be termed that the accused\r\nwas in illegal custody at the time of recording his voluntary\r\nstatement since the Police had a doubt in respect of accused\r\nNo.1 based on the call registered of accused Nos.1 and 2, as per\r\nEx.P31, they interrogated the accused. Though accused No.1\r\nwas not an accused of any offence but in the same time, the FIR\r\nwas already registered in Crime No.44/2012 in respect of the\r\nman missing.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">23. The Hon\'ble Apex Court in the case of Dharam Deo\r\nYadav vs. State of Uttar Pradesh reported in (2014) 5 SCC\r\n509 held that the confession of person in \'custody\' under Section </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">27, no need of formal arrest -whether the accused in \'custody\',\r\nwhen he had not yet been formally arrested but took the police\r\nto the place from where the buried skeleton remains of deceased\r\nwere recovered -Statement so made if admissible under Section\r\n8 as \'conduct\' - Held, \'custody\' in Section 27 is not formal\r\ncustody - it includes any kind of surveillance, restriction or\r\nrestraint. Consequently, so much of information given by the\r\naccused in \'custody\', in consequence of which a fact is\r\ndiscovered, is admissible in evidence, whether such information\r\namounts to a confession or not - Furthermore, even without the\r\naid of Section 27, the statement so made by the appellant would\r\nbe admissible as \'conduct\' under Section 8. This preposition of\r\nlaw dealt in detail in paragraphs 27 and 28 of the said judgment\r\nby the Hon\'ble Apex Court. As such, the voluntary statement of\r\nthe accused can be relied to the extent of Section 27 of Indian\r\nEvidence Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. But in the instant case, the prosecution proved all\r\nthe above circumstances against the accused. The major\r\ncircumstance of the recovery of the dead body at the instance of\r\naccused No.1 is proved beyond any doubt since accused No.1\r\nshowed the place of burial of the dead body and thereafter, the\r\nexhumation of the dead body and identification of the same by\r\nthe family members and also the opinion of the experts i.e., the\r\ndoctors and the scientific officer in respect of the homicidal death\r\nof the deceased and the recovery of the weapon said to have <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">used by accused No.1 for the commission of the crime etc., are\r\nclearly proved by the prosecution beyond all reasonable doubt.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 32. The recovery of the last remains of the deceased was\r\na relevant fact, which was, thus, admissible in evidence. The\r\naccused No.1 had pin pointed the exact place which was to be\r\ndugged up. He also made an oral statement to that effect. The\r\nentire exhumation proceedings and inquest proceedings were\r\nvideo graphed by PW.12 and he deposed to that effect.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34. The minor contractions in the evidence of the\r\nwitnesses do not go to the root of the prosecution case. The said\r\npreposition held by the Ho\'ble Apex Court in catena of judgments\r\nthat the minor embellishments and contradictions can be\r\neschewed. The Hon\'ble Apex Court in the constitutional Bench\r\nJudgment rendered in the case of Neeraj Dutta v. State (NCT\r\nof Delhi) reported in (2023) 4 SCC 731 elaborately discussed\r\nin respect of Section 6 of the Evidence Act and discussed about\r\nthe \'evidence\' meaning, scope and kinds of principles elucidated\r\nand held that (i) \'evidence\' is the medium through which the\r\ncourt is convinced of the truth or otherwise of the matter under\r\nenquiry i.e., the actual words of witnesses, or documents\r\nproduced and not to facts which have to be proved by oral and\r\ndocumentary evidence and (ii) \'evidence\' is not restricted to only\r\noral and documentary evidence but also to other things like\r\nmaterial objects, the demeanour of the witnesses, facts of which <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">judicial notice could be taken, admissions of parties, local\r\ninspection made and answers given by the accused to questions\r\nput forth by the Magistrate or Judge under Section 313 of\r\nCr.P.C.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>37. The Hon\'ble Apex Court in the case of State of\r\nRajasthan vs. Kashim Ram reported in (2006) 12 SCC 254\r\nheld that the failure of accused to explain incriminating\r\ncircumstances against him, provides an additional circumstance\r\nin the chain of circumstantial evidence against him as\r\ncontemplated under the provision of 106 of Indian Evidence Act.\r\nSince the incriminating circumstances which will be within his\r\nspecial knowledge and failure to discharge onus which lies on\r\naccused under the said provision is an additional link in the chain <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of circumstances. In the case on hand, the accused failed to\r\nexplain any such circumstances proved against him.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">38. In such circumstance, the theory established by the\r\nprosecution is proved in the chain of circumstances of the\r\nevidence against the accused.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>41. However, as far as accused No.3 is concerned, the\r\nprosecution failed to prove his guilt by leading any cogent\r\nevidence. In order to implicate him in the alleged crime, the\r\nprosecution totally relied on the voluntary statement of accused\r\nNo.1 as per Ex.38. However, the witnesses examined before the\r\nCourt i.e., the family members of the deceased so also the other\r\ncircumstantial witnesses were not deposed about the\r\ninvolvement of accused No.3 in the alleged crime. It is the\r\nsettled position of law that the voluntary statement of the\r\nco-accused cannot be base for conviction of other accused. As\r\nper the prosecution case, accused No.3 involved in the crime by\r\nway of facilitating/assisting accused No.1 to shift the dead body\r\nby an auto rickshaw from the place where accused No.1\r\nmurdered the deceased to the place where accused No.1 buried\r\nthe dead body of the deceased. However, the ownership of the\r\nsaid auto rickshaw was not proved and more over, there is no <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">such evidence deposed before the Court about the shifting of the\r\ndead body by accused No.3 along with accused No.1. In such\r\ncircumstances, accused No.3 cannot be convicted for the\r\noffences charged against him.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n42. However, the sentence imposed against accused\r\nNo.1 by the trial Court by directing him to undergo imprisonment\r\ni.e., till his last breath is concerned, in our considered opinion\r\nthe said sentence is not sustainable under law for the reason\r\nthat the Hon\'ble Apex Court in the case of Union of India vs.\r\nV.Sriharan Alias Murugan and others reported in 2016 (7)\r\nSCC in 1 held that awarding of said special category sentence,\r\nin substitution of death sentence, that is, sentence barring\r\nremission under Cr.PC for specified term beyond 14 yrs, or life\r\nimprisonment barring remission for rest of life, held (per\r\nmajority), is valid - Clarified, however power under Arts. 72 and\r\n161, which is not the same as the statutory power of remission,\r\nis not affected - Award of non-remittable specified sentence or\r\nlife imprisonment barring remission for rest of life, held, not\r\nviolative of separation of powers - Such special sentence when</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">imposed under substantive provisions of IPC does not overlap\r\nprocedural power under Cr.PC either - Considering crime\r\nsituation in India (particularly nexus between hardened criminals\r\nand ill-gotten wealth, and nature of heinous crimes on the rise),\r\ndelay in disposal of cases, and balancing interest of victims with\r\nthose of convicts, such special category sentence is necessary.\r\nFurther held (per majority), such special category sentence can\r\nonly be imposed by High Court or supreme Court and not by trial\r\ncourt.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>43. In such circumstances, the Sessions Court cannot\r\nexercise such power to impose imprisonment to accused No.1 till\r\nhis last breath. Hence, learned Sessions Judge erred on that\r\ncount. Nevertheless, the Hon\'ble Apex Court in the case of\r\nDharma Deo Yadav (supra) laid down three tests, namely,\r\nCrime test, Criminal test and Rarest rare test. So for the present\r\ncase is concerned, both the crime and criminal tests have been\r\nsatisfied against the accused but, rarest rare test is concerned,\r\nthe prosecution failed to prove the same by leading cogent <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">evidence that the crime was committed in a barbaric manner and\r\nhence the instant case would not fall under the category of\r\nrarest of the rare case. As such, the punishment awarded by the\r\ntrial Court by imposing the imprisonment to accused No.1 till his\r\nlast breath has to be modified to life imprisonment instead of\r\nlast breath of his life.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i) Criminal Appeal No.1234/2017 filed by accused\r\nNo.1 is hereby allowed-in-part. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c93fcc99b1e5fc3cf120b05baabfc92f.jpeg', '5d970946092a5302757b50f564d7c943.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-24', 1, '', '', '2023-07-23 13:54:57', '2023-07-24 12:26:53');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3234, 'vJT2vHKJFoSBhkJeuM6qMF62G', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Second wife cannot initiate criminal proceedings against the husband for the offence under Section 498-A of IPC. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Kantharaju Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Revision Petition 1372 of 2019 decided on 17 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S Rachaiah.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This Criminal Revision Petition is filed by the\r\npetitioner, being aggrieved by the judgment of conviction and\r\norder of sentence dated 18.01.2019 in C.C.No.3980/2011 on\r\nthe file of the Court of the Principal Civil Judge and J.M.F.C-I at\r\nTumakuru and its confirmation judgment and order dated\r\n04.10.2019 in Crl.A.No.2/2019 on the file of the Court of the\r\nVI Additional District and Sessions Judge at Tumakuru seeking\r\nto set aside the concurrent findings recorded by the Courts\r\nbelow, wherein the petitioner / accused is convicted for the\r\noffences punishable under Sections 498-A of Indian Penal Code\r\n(for short ‘IPC’).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. It is the case of the prosecution that, the\r\ncomplainant married the petitioner as second wife and it is\r\nstated in the said complaint that, initially upto five years, both\r\nthe petitioner and the complainant were living cordially. In the\r\nsaid marriage, the couple had a male child. After she gave <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">birth to the child, she had some health issues. Later on, she\r\nwas affected due to paralysis, which led her to lose control over\r\nher legs, she became incapacitated. The petitioner, due to the\r\nsaid health issues of the complainant, started harassing her\r\nand it is stated that, she was being subjected to cruelty and\r\nmental torture. It is further stated that, she was being abused\r\nin a filthy language and she was thrown out of the matrimonial\r\nhome. After she was thrown out of the matrimonial home, she\r\nstarted living by running a petty shop for her livelihood. Then\r\nalso, the petitioner started quarreling and threatened her that\r\nhe would pour kerosene and lit fire to the shop along with her,\r\nif she continued to run petty shop in that area. Unable to\r\ntolerate the cruelty and harassment of the petitioner, the\r\ncomplainant has lodged a complaint before the jurisdictional\r\npolice. The police have registered a case and submitted the\r\ncharge sheet.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. It is the submission of learned counsel for the\r\npetitioner that, the complainant being the second wife, the\r\nCourts below should not have convicted the petitioner for the\r\noffence under 498-A of IPC since the basic ingredients of the\r\nsaid provision do not attract. As regards the said contention, it\r\nis necessary to refer the provision of Section 498-A of IPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>“498A. Husband or relative of husband of a woman\r\nsubjecting her to cruelty.—Whoever, being the\r\nhusband or the relative of the husband of a woman,\r\nsubjects such woman to cruelty shall be punished\r\nwith imprisonment for a term which may extend to\r\nthree years and shall also be liable to fine.\r\nExplanation.—For the purpose of this section,\r\n“cruelty” means—</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>(a) any wilful conduct which is of such a nature as\r\nis likely to drive the woman to commit suicide or to\r\ncause grave injury or danger to life, limb or health\r\n(whether mental or physical) of the woman; or</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>(b) harassment of the woman where such\r\nharassment is with a view to coercing her or any\r\nperson related to her to meet any unlawful demand\r\nfor any property or valuable security or is on\r\naccount of failure by her or any person related to\r\nher to meet such demand.” </i><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">9. On perusal of the above said provision, it shows\r\nthat the husband or relative of a woman subjecting her to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cruelty, shall be punished with imprisonment. It is needless to\r\nsay that, “woman” in the said definition means and includes,\r\nlegally wedded wife. As per the evidence of PWs.1 and 2, it is\r\nan admitted fact that, the complainant was the second wife of\r\nthe petitioner.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">11. My view is fortified by the dictum Hon’ble Supreme\r\nCourt in the cases stated supra. Now, it is relevant to refer the\r\ndictum of the Hon’ble Supreme Court to arrive at a conclusion </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">as to whether the second wife is permitted to lodge the\r\ncomplaint against the husband for the offence under Section\r\n498-A of IPC.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. The Hon’ble Supreme Court, in paragraph No.2 of\r\nShivcharan Lal Verma’s case, referred to supra, has held as\r\nunder:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“2. This matter had not been taken up for\r\nhearing for this length of time as the judgment\r\nof this Court holding Section 306 of the IPC to\r\nbe unconstitutional, was under re-consideration\r\nby the Constitution Bench. The Constitution\r\nBench finally disposed of the matter in Criminal\r\nCase No. 274 of 1984 and batch and set aside\r\nthe earlier judgment of this Court and held\r\nthat Section 306 is constitutionally valid. In view\r\nof the aforesaid Constitution Bench decision,\r\ntwo questions arise for consideration in this\r\nappeal. One, whether the prosecution\r\nunder Section 498-A can at all be attracted\r\nsince the marriage with Mohini itself was null\r\nand void, the same having been performed\r\nduring the lifetime of Kalindi. Second, whether\r\nthe conviction under Section 306 could at all be\r\nsustained in the absence of any positive\r\nmaterial to hold that Mohini committed suicide\r\nbecause of any positive act on the part of either\r\nShiv Charan or Kalindi. There may be\r\nconsiderable force in the argument of Mr\r\nKhanduja, learned counsel for the appellant so</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ar as conviction under Section 498-A is\r\nconcerned, inasmuch as the alleged marriage\r\nwith Mohini during the subsistence of a valid\r\nmarriage with Kalindi is null and void. We,\r\ntherefore, set aside the conviction and sentence\r\nunder Section 498-A IPC. But so far as the\r\nconviction under Section 306 is concerned, the\r\nevidence of the three witnesses already referred\r\nto, makes it absolutely clear that it is on\r\naccount of torture by both Kalindi and Shiv\r\nCharan that Mohini committed suicide inside the\r\nhouse of Shiv Charan in another room. The\r\nlearned Sessions Judge as well as the High\r\nCourt have appreciated the evidence of the\r\naforesaid three witnesses and on going through\r\nthe evidence of these three witnesses, we do\r\nnot find any error committed by the courts\r\nbelow either in the matter of appreciation or in\r\ntheir approach relating to the evidence in\r\nquestion. We, therefore, do not find any\r\ninfirmity with the conviction of the appellants\r\nunder Section 306 IPC. So far as the sentence is\r\nconcerned, they have been sentenced to\r\nundergo rigorous imprisonment for seven years\r\nbut having regard to the facts and\r\ncircumstances of this case, we reduce the\r\nsentence to five years. This appeal is\r\naccordingly disposed of. Bail bonds of the\r\nappellants would stand cancelled and they must\r\nsurrender to undergo the remaining period of\r\nsentence.”</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. Similarly, the dictum of the Hon’ble Supreme Court\r\nin the case of P.Sivakumar, referred to supra, in para 7 of the\r\nsaid judgment, it reads thus:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n“7. Undisputedly, the marriage between the appellant\r\nNo.1 and PW-1 has been found to be null and void.\r\nAs such the conviction under Section 498-A IPC\r\nwould not be sustainable in view of the judgment of\r\nthis Court in the case Shivcharan Lal Verma\'s case\r\nsupra. So far as the conviction under Sections 3 and\r\n4 of the Dowry Prohibition Act is concerned, the\r\nlearned trial Judge by an elaborate reasoning, arrived\r\nat after appreciation of evidence, has found that the\r\nprosecution has failed to prove the case beyond\r\nreasonable doubt. In an appeal/revision, the High\r\nCourt could have set aside the order of acquittal only\r\nif the findings as recorded by the trial Court were\r\nperverse or impossible.”</i> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. The ratio of these two judgments of the Hon’ble\r\nSupreme Court clearly indicates that, if the marriage between\r\nthe husband and wife ended as null and void, the offence under\r\nSection 498-A of IPC cannot be sustained.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. Admittedly, in the present case, the complainant in\r\nher evidence, PW.2 being the mother of PW.1 both have\r\nconsistently deposed and admitted that, PW.1 is the second\r\nwife of the petitioner. Accordingly, the concurrent findings of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Courts below in recording the conviction requires to be set\r\naside.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) The Criminal Revision Petition is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e765a443b78606cd710c1d61e724bae1.jpeg', '580fb715036bacf494c65eb80ec104d3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-24', 1, '', '', '2023-07-23 14:02:07', '2023-07-24 03:16:10'),
(3235, '55ip0jPD9j6u1T7rsp29jADd4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Rent Act, 1999. Second revision petition under Section 115 of CPC is maintainable as against the revisional order passed by the District Court under Section 46. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gangadhar Nayak Vs Ananth G. Pai Thr LRS and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>House Rent Rev. Petition 3 of 2019 decided on 21 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The factual matrix of the case before the Trial Court\r\nis that the respondent in this revision petition had filed the\r\neviction petition and the same is numbered as HRC No.21/2011 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and sought for an order of eviction under the Karnataka Rent\r\nAct, 1999 (for short ‘the Act of 1999’) on the ground that he\r\nrequires the premises to construct a godown and for expansion\r\nof his business and the premises is also old one and it may\r\ncollapse at any time. The petitioner herein has filed the\r\nobjection statement denying the relationship between them\r\ncontending that there is no landlord and tenant relationship\r\nbetween them and sought for an order of dismissal of the\r\npetition and an interlocutory application has been filed invoking\r\nSection 43 of the Act and the same was numbered as I.A.No.V.\r\nAn enquiry was held and the respondent herein examined as\r\nPW1 and got marked the documents at Ex.P1 to P18 and the\r\npetitioner herein has examined as RW1 and got marked the\r\ndocuments at Ex.R1 to R8. The Trial Court after considering the\r\nmaterial on record held that there is a relationship of landlord\r\nand tenant between the parties and rejected the application vide\r\norder dated 13.07.2018. As against the said order, the revision\r\npetition was filed under Section 46 of the Act of 1999 challenging\r\nthe order passed on I.A.No.V. The revision Court also dismissed\r\nthe said petition vide order dated 20.12.2018. Hence, being </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">aggrieved by the said order, the present revision petition is filed\r\nunder Section 115 of CPC.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Having heard the respective counsel appearing for\r\nthe parties and also the principles laid down in the judgments\r\nreferred supra and the grounds urged in the revision petition,\r\nthe points that would arise for consideration of this Court that:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>1. Whether the present revision petition is\r\nmaintainable against the order of revision of the\r\nDistrict Court under Section 115 of CPC?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. Whether both the Courts have committed an\r\nerror in dismissing the application filed under 43\r\nof the Karnataka Rent Act?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n3. What order?<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.1\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. Admittedly, there is no dispute with regard to the\r\nfact that this revision petition is filed invoking Section 115 of\r\nCPC against the order of the revision passed by the District Court\r\ndated 20.12.2018 and in the said revision, the District Court\r\ncomes to the conclusion that the petitioner herein has not made\r\nout any grounds to interfere with the impugned order of the Trial\r\nCourt. Being aggrieved by the said order, the present revision <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petition is filed. The main contention of the respondent counsel\r\nthat second revision petition is not maintainable and in support\r\nof his contention, relied upon judgment of the YARAGATTI’s\r\ncase referred supra wherein this Court in paragraph 11 discussed\r\nwith regard to filing of a revision under Section 115 of CPC\r\nagainst the order of the District Judge cannot be envisaged. The\r\nscheme of the Act does not warrant a conclusion that two\r\nrevisions are permissible and also referring the judgments of\r\nVISHESH KUMAR and AUNDAL AMMAL held that a revision\r\nunder Section 115 of CPC does not allow to the High Court from\r\nthe revision order made by a District Judge and held that law\r\nlaid down in KRISHNAJI VENKATESH SHIRODKAR’s case is\r\nno more a good law. The Apex Court considered the case of M\r\nM YARAGATTI and the same was overruled and affirmed\r\nKRISHNAJI VENKATESH SHIRODKAR’s case and also\r\ndistinguished VISHESH KUMAR and AUNDAL AMMAL’s case\r\nwhich has been relied upon by this Court and hence, the\r\njudgment quoted by the respondent in YARAGATTI’s case\r\ncannot be relied upon in view of the overruling of the same. The\r\ncounsel also relied upon the judgment of the Orissa High Court </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">but when the Apex Court held that second revision is\r\nmaintainable, the principles laid down in the Orissa High Court\r\nalso cannot be relied upon.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. This Court would like to extract paragraphs 13 and\r\n14 of SHYAMARAJU HEGDE’s case as herein below.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“13. As against the two authorities of this Court,\r\nnamely, the cases of Vishesh Kumar and Aundal\r\nAmmal dealing with provisions of different statutes,\r\nthere is a direct decision of this Court in the case of\r\nKrishnadas Bhatija which has already been quoted.\r\nThis Court was dealing with the very provision after\r\nits amendment in 1975 and the very question which\r\nnow falls for consideration was before this Court. In\r\nKrishnaji\'s case the decision of this Court had been\r\nrelied upon as a binding authority and it was\r\nconcluded that the High Court has powers to\r\nentertain a revision under Section 115 of the Code of\r\nCivil Procedure against the revisional order of a\r\nDistrict Court. It is conceded that the impugned\r\nprovision which was being considered by this Court\r\nin Krishnadas Bhatija case continues to be the same.\r\nThough the decision rendered in Bhatija case by this\r\nCourt is not a detailed one, the conclusion on the\r\npoint is clear and admits of no ambiguity. The Full <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Bench in the impugned judgment clearly went wrong\r\nin holding that the two Judge Bench of this Court\r\nreferred to by it had brought about a total change in\r\nthe position and on the basis of those two judgments\r\nKrishnaji case would be no more good law. The\r\ndecision of a Full Bench consisting of three Judges\r\nrendered in Krishnaji case was binding on a Bench of\r\nequal strength unless that decision had directly been\r\noverruled by this Court or by necessary implication\r\nbecame unsustainable. Admittedly there is no\r\noverruling of Krishnaji\'s decision by this Court and on\r\nthe analysis indicated above it cannot also be said\r\nthat by necessary implication the ratio therein\r\nsupported by the direct authority of this Court stood\r\nsuperseded. Judicial propriety warrants that\r\ndecisions of this Court must be taken as wholly\r\nbinding on the High Courts </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">This has been approved by this Court on more than\r\none occasion. Added to the above is the provision of\r\nArticle 141 of the Constitution which unequivocally\r\nstates that the law declared by this Court shall be\r\nbinding on all courts within the territory of India. In\r\nthe facts and circumstances of the case, the High\r\nCourt should not have taken onto itself, the\r\nresponsibility of saying that its earlier Full Bench\r\njudgment based upon a decision of this Court in the\r\ncircumstances indicated above had lost its binding\r\nauthority in view of two other judgments rendered in\r\ndifferent situations and setting. We are really not in\r\na position to appreciate the manner in which a\r\ncoordinate bench of the High Court has chosen to\r\noverrule an earlier judgment of that court.\"</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. Perused the aforesaid paragraphs wherein the Apex\r\nCourt in paragraph 13 held that in KRISHNAJI’s case, the\r\ndecision of this Court had been relied upon as a binding\r\nauthority and it was concluded that the High Court has powers to\r\nentertain a revision under Section 115 of the CPC against the\r\nrevisional order of a District Court and also further observed in\r\nparagraph 14 relying upon both KRISHNADAS BHATIJA’s case\r\nand KRISHNAJI’s case was rendered under the Karnataka Rent <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Control (Amendment) Act and has held the field for over a\r\ndecade and further observed that no justification has been\r\npointed out by the High Court why that should be discarded and\r\nfurther observed that it is one of the essential requirements of\r\nthe administration of justice that judgments rendered by\r\nsuperior Courts and particularly with the approval of the Apex\r\nCourt should not be frequently changed so as to unsettled\r\nsettled positions. The fact that the State legislature has not\r\nthought it necessary to amend the law and set at naught\r\nKRISHNAJI or BHATIJA is indicative of the position that this\r\nCourt had not taken a wrong view of the legislative intention. In\r\nthese circumstances we feel advised not to enter into an analysis\r\nof the provisions of the Act for a fresh look at the matter and\r\nprefer to follow BHATIJA. It is further observed that we make it\r\nclear that we have not felt it necessary to examine whether the\r\nratio of AUNDAL AMMAL is binding or requires reconsideration\r\nin the presence of BHATIJA in the field as a direct authority and\r\nhence, held revision is maintainable and the Apex Court also set\r\naside the judgment of the Karnataka High Court and declared\r\nthat the earlier Full Bench decision in KRISHNAJI’s case holds </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the field and hence, the very contention of the counsel for the\r\nrespondent that second revision cannot be maintainable cannot\r\nbe accepted. Hence, I hold that second revision petition under\r\nSection 115 of CPC is maintainable as against the revisional\r\norder passed by the District Court. Hence, I answer this point as\r\naffirmative.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.2</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. Now, the facts of the case on merits is concerned, it\r\nis the contention of the respondent/tenant that there exists no\r\njural relationship between the parties as landlord and tenant and\r\nhe also filed an application under Section 43 of the Act of 1999\r\nand the same was dismissed by the Trial Court and the revisional\r\nCourt also confirmed the same. The main contention of the\r\npetitioner herein that there is no document of lease or having\r\npaid the rent to establish the jural relationship between the\r\nparties. No doubt, in view of the principles laid down in the\r\njudgments referred supra by the counsel for the respondent, it is\r\nclear that the scope of the revision is very limited as held in the\r\njudgment of SANDHYA K R as well as AVINASH LAL <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">CHANDANI (referred supra) and also it is held that it is\r\nimproper on the part of the revisional Court to re-appreciate the\r\nevidence and only High Court can re-assess the evidence if it is\r\neither ignored or misinterpreted or law has been misapplied to\r\nfacts of particular case. But in the case on hand, it has to be\r\nnoted that both the Courts have taken note of the admission\r\ngiven by RW1 in his cross-examination and the same is\r\ndiscussed by the Trial Court while rejecting I.A.No.V and in\r\nparagraph 12, the Trial Court taken note of the evidence of PW1\r\nas well as RW1 and in the cross-examination, RW1 clearly\r\nadmitted that petitioner is the son of landlord Ganapathi Pai, he\r\nis the owner of the schedule premises and also he admitted that\r\nthere is 16 houses in the Bharath Bidi compound and he also\r\nadmitted that revenue documents are in respect of schedule\r\npremises is in the name of the petitioner and also he admitted\r\nthat Ex.P12 is in respect of schedule property which is standing\r\nin the name of the petitioner as stated in the settlement deed\r\nand the petitioner is the owner of the schedule premises which is\r\nresiding by the respondent and also taken note of Section 43 of\r\nthe Act of 1999 and also relied upon the judgment reported in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2015 (3) KLJ 432 in the case of S SOMASUNDARAM vs\r\nRUKMINI wherein it is held that the petitioner admitting that he\r\nwas tenant under the previous owner, when once the ownership\r\nis transferred, transferee becomes the owner of the premises,\r\ntenant cannot dispute the right of transferee landlord to maintain\r\nan eviction petition and hence, dismissed the application.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16. It is also important to note that the revisional Court\r\nalso considered the grounds urged in the revision and also\r\nadmission given by RW1 in his cross-examination whereas RW1\r\ncategorically stated that the petitioner in the HRC petition is the\r\nson of his landlord Ganapathi Pai and comes to the conclusion\r\nthat the petitioner cannot deny the jural relationship between\r\nthe parties and given the definite finding that the said contention\r\ncannot be accepted. If he is not a tenant, why he gave an\r\nanswer that the petitioner is the son of the landlord Ganapathi\r\nPai and the same has not been explained. When such admission\r\nis extracted and considered by both the Courts, this Court sitting\r\nunder Section 115 of CPC cannot re-appreciate the evidence\r\navailable on record. This Court can exercise the revisional </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">jurisdiction only if it is found that the order of the revisional\r\nCourt suffers from legality or correctness.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. The contention of the petitioner counsel that the very\r\nadmission that the petitioner in HRC petition is the son of his\r\nlandlord Ganapathi Pai does not amounts to an existence of jural\r\nrelationship between the parties. The said contention cannot be\r\naccepted. I have already pointed out that no explanation with\r\nregard to the fact that if he is not a tenant, why he admitted that\r\nthe father of the petitioner is the landlord. Hence, this Court\r\nsitting under Section 115 of CPC cannot re-assess the evidence\r\nwhen both the Courts have considered the admission of RW1\r\nthus, there is no misinterpretation or misapplied the law. Hence,\r\nI do not find any force in the contention of the counsel for the\r\nrevisional petitioner that both the Courts have committed any\r\nerror. Hence, I answer this point as negative.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.3</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The revision petition is dismissed. It is held that the\r\npresent revision petition under Section 115 of CPC is\r\nmaintainable. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3a903ccd2d215a8aa32f205a309b98e6.JPG', '1f2ae6cf4da180e53b1285675833eca8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-24', 1, '', '', '2023-07-23 14:11:51', '2023-07-24 10:23:39');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3236, 'jQd9LPUrNewKoKVvm1ssvcphK', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for specific performance. Defendant who never questioned financial capacity of the plaintiff to perform his part of the obligation under the contract, cannot raise it for the first time in the appeal. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Selvaraj Vs Balchand.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular First Appeal 1095 of 2017 decided on 6 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.B. Prabhakara Sastry.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This is a defendants’ appeal. The present\r\nrespondent as a plaintiff had instituted a suit against the\r\npresent appellant, arraigning him as defendant in\r\nO.S.No.51/2014, in the Court of the learned Senior Civil\r\nJudge and Principal J.M.F.C. at K.G.F. (hereinafter for\r\nbrevity referred to as “Trial Court”), seeking specific\r\nperformance of a contract. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The summary of the case of the plaintiff in the\r\nTrial Court was that, the defendant has offered him to sell\r\nthe suit schedule property to meet his legal and financial\r\nnecessity and clear family debt. Accordingly, the\r\nnegotiation took place between them on 05.09.2012. It\r\nwas agreed in the negotiation that the defendant should\r\nsell the suit schedule property to the plaintiff for a total\r\nconsideration of a sum of `14,00,000/-. In that regard <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">both the plaintiff and the defendant entered into an\r\nagreement for sale on 27.03.2013, on the same day, the\r\nplaintiff paid an advance consideration in the sale value of\r\na sum of `10,00,000/- to the defendant, which the\r\ndefendant acknowledged. It was agreed between the\r\nparties that the defendant should execute the sale deed\r\nand register it in favour of the plaintiff within three months\r\nfrom the date of the agreement for sale after receiving the\r\nbalance sale consideration of a sum of `4,00,000/-. The\r\ndefendant also agreed to handover the original documents\r\nas on the date of registration of sale deed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>It is the further case of the plaintiff that though he\r\nwas ready and willing to perform his part of the contract,\r\nhowever, the defendant did not come forward to execute\r\nand register a sale deed in his favour. The plaintiff\r\nrepeatedly requested and demanded the defendant to\r\nreceive the balance sale consideration and execute the\r\nregistered sale deed. Since the defendant did not respond\r\nfavourably, the plaintiff got issued a legal notice dated\r\n10.10.2013 calling upon him to perform his part of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">obligation under the agreement for sale. However, the said\r\nnotice returned unserved with an endorsement as ‘the\r\naddressee left without intimation hence return to the\r\nsender’. The plaintiff once again sent a notice on\r\n23.06.2014 to the address of the defendant at Bengaluru.\r\nThe said notice also returned unserved with an\r\nendorsement as ‘intimation issued’. Since the defendant\r\nfailed to receive the notice, the plaintiff got issued a\r\nreminder notice on 12.07.2014. The said notice was\r\nserved upon the defendant. Still the defendant failed to\r\ncomply the demand made in the notice. With this, the\r\nplaintiff contended that though he has always been ready\r\nand willing to perform his part of the obligation under the\r\nagreement, however, the defendant failed to perform his\r\npart of the contract and this constrained him to file a civil\r\nsuit against the defendant. With this, the plaintiff has filed\r\na suit in O.S.No.51/2014 against the defendant (the\r\npresent appellant).</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. In the light of the above, the points that arise\r\nfor my consideration in this appeal are:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>“(i) Whether the plaintiff proves that the\r\ndefendant has executed an agreement for sale on\r\n27.03.2013 in his favour agreeing to sell the suit\r\nschedule property to him for a valuable sale\r\nconsideration of a sum of `14,00,000/-?\r\n</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>(ii) Whether the plaintiff proves that the\r\ndefendant had received a sum of `10,00,000/- from\r\nthe plaintiff as an advance amount against the total sale consideration of a sum of `14,00,000/- under\r\nthe agreement for sale dated 27.03.2013?</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\r\n(iii) Whether the plaintiff proves that he has\r\nalways been ready and willing to perform his part of\r\nthe obligation under the agreement for sale dated\r\n27.03.2013?\r\n</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>(iv) Whether the defendant proves that the\r\nagreement for sale dated 27.03.2013 is\r\nunenforceable due to the efflux of time of three\r\nmonths mentioned in the agreement?</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\r\n(v) Whether the impugned judgment and\r\ndecree warrants any interference at the hands of\r\nthis Court?”</i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. Learned counsel for the respondent (the plaintiff)\r\nin his argument submitting that it is not mandatory that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the agreement holder should necessarily produce the\r\ndocument to show his financial position, has relied upon\r\nthe judgment in Basavaraj’s case (supra). In the said\r\ncase, the Hon’ble Apex Court in paragraph-6.2 of its\r\njudgment after relying upon its previous judgment in the\r\ncase of Indira Kaur and Ors. v. Sheo Lal Kapoor\r\nreported in (1988)2 SCC 488 was pleased to observe\r\nthat unless the plaintiff was called upon to produce the\r\npassbook either by the defendant or, Court orders him to\r\ndo so, no adverse inference can be drawn. With the said\r\nobservation, the Hon’ble Apex Court reversed the finding\r\non the readiness and willingness recorded by the High\r\nCourt, holding it as erroneous and restored the decree of\r\nspecific performance passed by the Trial Court.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">In the instant case also, the defendant nowhere in\r\nhis written statement has taken a contention about the\r\nalleged financial incapacity of the plaintiff to perform his\r\npart of the obligation under the contract. Even in the\r\ncross-examination of PW.1 also, nothing was elicited to\r\nshow that the plaintiff had no financial capacity to pay the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">balance amount of `4,00,000/-. On the other hand, the\r\ndefendant himself admitted of he receiving a sum of\r\n`10,00,000/- by the plaintiff. Thus, when the plaintiff\r\ncould able to pay `10,00,000/- as an advance amount, it is\r\nhard to believe that he had no capacity to pay the balance\r\namount of `4,00,000/- to the defendant.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. A perusal of the evidence led in the matter from\r\nboth side and the legal notices more particularly at Exs.P2\r\nand P5 would clearly go to show that at the earliest point of\r\ntime, the plaintiff has sent a notice to the defendant calling\r\nupon him to perform his part of the obligation under the\r\nagreement by accepting the balance sale consideration\r\nand executing the registered sale deed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>It is considering all these aspects and also\r\nconsidering the hardships that would be caused to the\r\nparties before it, the Trial Court has rightly exercised its\r\ndiscretion decreeing the suit and ordering for specific\r\nperformance of the agreement in favour of the plaintiff.\r\nThe said discretion exercised by the Trial Court under\r\nSection 20 of the Specific Relief Act, 1963 cannot be held\r\nto be unjustified or arbitrary. As such, the impugned\r\njudgment and decree does not warrant any interference at\r\nthe hands of this Court so far as decreeing the suit of the\r\nplaintiff for specific performance. However, in the light of\r\nthe fact and circumstances of the case, whether the\r\ndefendant who is the vendor of the property is entitled for\r\nan additional amount apart from the contractual amount,\r\nis to be considered.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. As analysed above, the total sale consideration\r\nagreed between the parties was a sum of `14,00,000/-,\r\nthe same is depicted in the agreement for sale at Ex.P1 as <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">well in the evidence of both side also. However, the\r\ncontention of the defendant commencing from his written\r\nstatement upto his evidence is that the value of the\r\nproperty as on the date of the alleged agreement was\r\nmore than `50,00,000/-, as such, he would not have\r\nagreed for sale of the said property for a paltry sum of\r\n`14,00,000/-.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Though the said contention of the defendant that he\r\nhas not agreed to sell the property for a sum of\r\n`14,00,000/-, is not accepted for the reasons given above,\r\nhowever, the contention of the defendant that the suit\r\nproperty was more than value of `50,00,000/- as on the\r\ndate of the agreement for sale, was put to PWs.1 and 2 in\r\ntheir cross-examinations. Both those witnesses have\r\npleaded their ignorance about the same, but specifically\r\nhave not denied that the suit property was not worth\r\nabout `50,00,000/- as on the date of the agreement.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In addition to the above, the defendant as DW.1 also\r\nhas stated in his examination-in-chief that the value of the\r\nsuit schedule property was more than `50,00,000/- as on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the date of the alleged agreement for sale. The said\r\ncontention about the valuation has not been specifically\r\ndenied in his cross-examination. From the said pleading\r\nand evidence, it is clear that the market value of the suit\r\nschedule property appears to be more than the agreed\r\nconsideration in the agreement at Ex.P1. However, since\r\nthe consideration need not be adequate, suffice if it is\r\nsufficient that the defendant had agreed to receive a total\r\nconsideration of `14,00,000/- only. Still considering the\r\ncontention of the defendant that the very purpose of he\r\nentering into a contract has not been materialised and that\r\nhardship would be caused to him in case if the specific\r\nperformance is ordered, I am of the view that to do the\r\ncomplete justice, if the plaintiff is directed to pay a further\r\nsum of `5,00,000/- to the defendant towards sale\r\nconsideration, which will be in addition to the balance sale\r\nconsideration of a sum of `4,00,000/- payable to the\r\ndefendant under the agreement at Ex.P1, it will meet the\r\nends of justice. The Hon’ble Apex Court in Basavaraj’s case\r\n(supra) had also arrived at such a finding and in order to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">do the complete justice, it had directed the plaintiff to pay\r\na further sum of `10,00,000/- towards the sale\r\nconsideration. Thus, it is only to that extent of directing\r\nthe plaintiff to pay a further sum of `5,00,000/- only, the\r\nimpugned judgment and decree warrants interference at\r\nthe hands of this Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n(i) The appeal filed by the defendant is\r\nallowed-in-part; </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '950d7a44860786b0593ab071156a64e4.jpeg', '2b34921e3d4048db9b8bca3b0fe07595.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-25', 1, '', '', '2023-07-24 12:45:47', '2023-07-25 03:27:53'),
(3237, 'iX9V67xvV6I31kcHSCOON4Gsp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Gram Swaraj and Panchayath Raj Act. Holding contractor’s licence under the GESCOM/KPTCL amounts to an ‘office of profit’. Such person is disqualified from contesting election. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Manikyappa Vs Dastagiri and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 201365 of 2023 decided on 11 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The general election for Gram Panchayath was\r\nnotified on 30.11.2020 and held on 22.12.2020. The\r\npetitioner had contested from the General Seat and\r\nrespondent No.1 contested for Gram Panchayati\r\nMember of Chandrabanda-5 Gram Panchayati under\r\nSchedule Tribe Reservation Seat/post. Respondents\r\nNo.2 and 3 had also contested in the said election.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The results being declared on 30.12.2020, the\r\npetitioner was declared as elected candidate from the\r\ngeneral seat. The respondent No.1 filed an Election\r\nPetition in Election case No.2/2021 on 21.01.2021\r\nbefore the Additional Senior Civil Judge and JMFC-I.,\r\nRaichur (trial Court) on the ground that the\r\npetitioner was holding an office of profit and alleging\r\nthat the petitioner being a Class-I Electrical\r\nContractor with GESCOM/KPTCL, the petitioner could\r\nnot have contested the election.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The Election Petition having been allowed by the\r\nimpugned order dated 21.04.2023 declaring the\r\nelection of the petitioner as void, the petitioner is\r\nbefore this Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The points that would arise for determination are:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1) Whether holding of a Contractor’s Licence under\r\nthe GESCOM/KPTCL would disqualify such holder\r\nfrom standing for election in terms of Section\r\n12(g) of the Karnataka Gram Swaraj and\r\nPanchayath Raj Act, 1993 and whether holding of\r\na Contractor Licence amounts to an ‘office of\r\nprofit’?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n2) Whether, in the present case, the orders passed by\r\nthe trial Court require any interference at the\r\nhands of this Court?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3) What order? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. Answer to Point No.(1): Whether holding of a\r\nContractor’s Licence under the GESCOM/ KPTCL\r\nwould disqualify such holder from standing for\r\nelection in terms of Section 12(g) of the\r\nKarnataka Gram Swaraj and Panchayath Raj\r\nAct, 1993 and whether holding of a Contractor\r\nLicence amounts to an ‘office of profit’?</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">11.2.The trial Court has come to a conclusion that\r\nthe electrical board i.e., GESCOM/KPTCL would\r\nfall within the definition of State and therefore,\r\nunder Section 12(g) of the Act of 1993, he\r\nwould be disqualified since he is holding an </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">office of profit under other authorities subject\r\nto the control of the Central Government, the\r\nState Government or the Government of any\r\nother State. On the ground that the said licence\r\nhad not been surrendered on the date when the\r\nnomination was filed, it was held that the\r\npetitioner was continuing to hold the office of\r\nprofit as on the date on which the nomination\r\nwas filed. The relevant provisions which are\r\nrequired to be considered by this Court to\r\nanswer the above question is Sections 12(g)\r\nand 12(h) of the Act of 1993 which are\r\nreproduced hereunder for easy reference:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>\"12. Disqualification for members.- A person shall\r\nbe disqualified for being chosen and for being a\r\nmember of a Grama Panchayat,-\r\n(a) to (f) xxx\r\n</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(g) if he holds any office of profit under any local or\r\nother authority subject to the control of the Central\r\nGovernment, the State Government or the\r\nGovernment of any other State, other than such offices\r\nas are declared by rules made under this Act not to\r\ndisqualify the holder; or\r\nExplanation.- For the purpose of this clause, a person\r\nshall not be deemed to hold an office of profit under</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Grama Panchayat by reason only that he is an\r\nAdhyaksha or Upadhyaksha of the Grama Panchayat.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(h) if, save as hereinafter provided he has directly or\r\nindirectly any share or interest in any work done by\r\norder of the Grama Panchayat, or in any contract or\r\nemployment with, or under, or by, or on behalf of, the\r\nGrama Panchayat, 1\r\n[or if he is either directly or\r\nindirectly by himself or by his agent, partner or\r\nemployee involved in obtaining or execution of any\r\nsuch work or contract on behalf of the Grama\r\nPanchayat or of any contract for the supply of goods\r\nand services to the Grama Panchayat;].\"</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11.3. A perusal of Section 12(g) of the Act of 1993\r\nwould indicate that a person shall be\r\ndisqualified for being chosen and for being\r\nmember of the Gram Panchayat if he holds any\r\noffice of profit under any local or other\r\nauthority subject to the control of the Central\r\nGovernment, the State Government or the\r\nGovernment of any other State.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11.4.In the present case, GESCOM/KPTCL being an\r\nauthority which comes within the purview of\r\nArticle 12 of the Constitution of India is not in\r\ndispute. What is required to be ascertained is if\r\nholding a contractors licence would amount to\r\noffice of profit. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">11.5.Section 12(h) of the Act of 1993 deals with a\r\ncandidate who has directly or indirectly any\r\nshare or interest in any work done by order of\r\nthe Gram Panchayat or is in any contract or\r\nemployment with or under, or by, or on behalf\r\nof, the Gram Panchayat. It further provides\r\nthat if a candidate either by himself or through\r\nagent, partner or employee involved in\r\nobtaining or execution of any work or contract\r\non behalf of the Gram Panchayat or of any\r\ncontract for supply of goods and services to the\r\nGram Panchayat. Thus, first portion of Section\r\n12(h) of the Act of 1993 deals with\r\nemployment. The second portion deals with\r\ncontracts either for execution of work or supply\r\nof goods and services. Both these are relatable\r\nto a Gram Panchayat inasmuch as, the\r\nemployment is to be with the Gram Panchayat\r\nand contract also to be with the Gram </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Panchayat or for and on behalf of the Gram\r\nPanchayat.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11.7.Thus, in terms of Section 9(a) of the R.P. Act, a\r\nperson would be disqualified for being a\r\nMember of Parliament or State Legislature if\r\nthere is subsisting contract with the appropriate\r\nGovernment. Thus, under the R.P. Act,\r\ncontract is treated to be as office of profit for\r\nsuch disqualification.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11.8.In the present case, there being no dispute as\r\nregards the petitioner being a partner in a firm\r\nwhich is having a contract with the\r\nGESCOM/KPTCL, a meaningful reading of\r\nSection 12(g) of the Act of 1993 by taking\r\nreference of Section 9(a) of the R.P. Act would\r\nindicate that the petitioner is holding office of\r\nprofit. The term office of profit has not been\r\ndefined.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11.9.The Hon’ble Delhi High Court in M/s.Shyam\r\nSunder Goel’s case (supra) while dealing with\r\nelection of a candidate to the Municipal\r\nCorporation of Delhi, has held that what is to be\r\ntaken into consideration is the pecuniary gain\r\nthat may ensue to the candidate to determine\r\nwhether the same would amount to office of\r\nprofit. In that background, the Hon’ble Delhi\r\nHigh Court held that holding a kerosene oil\r\ndealership licence issued by the Government of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">National Capital Territory of Delhi would\r\namount to office of profit. When a kerosene\r\ndealership would amount to office of profit, the\r\nElectrical Contractor Licence would also in my\r\nconsidered opinion, amount to an office of\r\nprofit.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11.10.This Court in Devaraja Urs’s case (supra) has\r\nheld that when there is a contract in existence,\r\ndischarge thereof can only by valid means and\r\nonly if the contract had come to an end by such\r\nvalid means would office of profit cease to\r\nexist.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11.11.In the present case, there is no dispute about\r\nthe continuation of the contractor licence and\r\nthe term of the contract with the\r\nGESCOM/KPTCL. The only defence taken by the\r\npetitioner is that the licence was surrendered.\r\nBut the licence was surrendered before the\r\nauthority who had no right to accept the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">surrender. Be that as it may, the evidence on\r\nrecord indicates that the said surrender has not\r\nbeen accepted and thereby establishing that\r\nthe contractors licence continues to be valid\r\nand in force.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11.12.The Hon\'ble Apex Court while dealing with\r\ndisqualification of Member of Legislative\r\nAssembly in Sewaram vs. Sobaran Singh held that when there is a contract between the\r\ncandidate and the Madhya Pradesh Government\r\nwhich was subsisting as on the date of the\r\nnomination, the said candidate was disqualified.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11.13.From analysis of all the above decisions, it is\r\nclearly seen that a kerosene dealership granted\r\nby the State Government would amount to\r\noffice of profit in terms of decision in\r\nM/s.Shyam Sunder Goel’s case (supra), in\r\nterms of the decision of this Court in Devaraja </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Urs’s case (supra), mere surrender of\r\ncontractors licence would not bring an end to\r\nthe licence, until accepted by the competent\r\nauthority and in terms of the decision of the\r\nHon\'ble Apex Court in Sewaram’s case\r\n(supra), if a contract was subsisting on the date\r\nof filing of the nomination, the candidate would\r\nbe disqualified.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11.14.Applying all the above decisions as also the law\r\nthereof namely Section 12(g) of the Act of 1993\r\nand 9(a) of the R.P. Act, the petitioner who was\r\nholding Electrical Contractors Licence which was\r\nsubsisting as on the date of filing of the\r\nnomination amounts to holding an office of\r\nprofit which would disqualify him under Section\r\n12(g) of the Act of 1993.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n11.15.I answer point No.(1) by holding that holding\r\nContractors Licence and discharging contracts\r\nwith GESCOM/KPTCL would amount to office of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">profit and would disqualify such licence holder\r\nunder Section 12(g) of the Act of 1993.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. Answer to point No.(2): Whether, in the present\r\ncase, the orders passed by the trial Court require\r\nany interference at the hands of this Court?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12.1.In view of my finding to point No.(1), for the\r\nreasons stated hereinabove as also for the\r\nreasons stated by the trial Court, the petitioner\r\nbeing disqualified, I do not see any need to\r\ninterfere with the well reasoned order passed\r\nby the trial Court.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>13. Answer to point No.(3): What order?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>13.1. The Writ Petition is dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '1d2f613fe9d8811bde4c2bd30d4566ba.JPG', 'b0d93f691cabc60a4bfa6673f5b96622.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-25', 1, '', '', '2023-07-24 13:02:18', '2023-07-25 06:26:41'),
(3238, 'Gv6nzDwCjONuIEab4W705csLn', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for partition. Appointment of court commissioner during the proceedings to find out the existence of building etc would be unnecessary since such an exercise can be undertaken at the time of final decree proceedings. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Abdul Kareen Vs Hussainbee and others<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 200748 of 2023 decided on 27 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The suit in O.S.No.75/2012 is filed seeking for partition\r\nand separate possession of the suit properties as also for\r\ndeclaration of certain sale deeds mentioned in the relief\r\ncolumn are illegal, null and void and not binding on the\r\nplaintiff. On trial being completed and the matter being\r\nposted for arguments, defendant No.7 and Defendant\r\nNo.10 had filed an application under Order 26 Rule 9 of\r\nCPC for spot inspection of some of the properties in\r\nquestion to ascertain the construction which had been put\r\nup and nature of construction. The trial court allowed the\r\nsaid application vide its order dated 2.02.2023. It is\r\naggrieved by the same that the petitioner is before this\r\ncourt.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. A suit for partition essentially results in a preliminary\r\ndecree to be passed. In such a suit, the rights of the\r\nparties are required to be determined with reference to\r\nthe properties, once they are held to be joint family or\r\nancestral properties. The actual partition is carried out\r\nonly in a Final Decree Proceedings at a much later stage.\r\nVery few defences are available in a partition suit, which\r\ncould include probably denial of relationship, denial that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the property is joint family property or ancestral\r\nproperty, prior partition or the like.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>7. The existence of building, whether permanent or not, is\r\nneither a defence nor would it be germane to determine\r\nthe share of the parties in a suit for partition. At the\r\nmost, it may be relevant for determining the valuation of\r\nthe property at the time of a final decree proceedings\r\nbeing drawn up, which shall be so determined upon a\r\ncommissioner being appointed.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8. In that view of the matter, I am of the considered opinion\r\nthat the very filing of application under Order 26 Rule 9\r\nof CPC in a suit for partition, firstly not being required has\r\nbeen filed only to delay the proceedings. Such an\r\napplication, if allowed and the commissioner report being\r\nchallenged, would also require cross examination of the\r\ncommissioner, which is not relevant or required at this\r\nstage of the suit. At this stage of the dispute resolution\r\nprocess, namely before the preliminary decree is drawn\r\nup it is only the shares of the parties which has to be </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">determined, once it is determined that the properties are\r\nJoint Family properties or ancestral properties.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>9. It would be well advised for the courts handling partition\r\nmatters to deal with these kind of applications keeping in\r\nmind the requirement thereof to pass a preliminary\r\ndecree so as not to protract the proceedings. </b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i. The petition is allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '32b8950649b655152a99cfc7ee220dc8.JPG', 'f7b0e17805ee481927a81ff25cff5a90.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-25', 1, '', '', '2023-07-24 13:58:16', '2023-07-25 10:26:35');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3239, 'knY7JAseZj4F0bjklQM9h5doq', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Unregistered relinquishment deed can be relied on for the collateral purpose of proving earlier partition and division of joint family status as recited in the deed. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Dinesh Sipani Vs Shantamma and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular First Appeal 1289 of 2012 decided on 28 February 2020.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice E.S. Indiresh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The plaintiffs have filed a suit seeking partition and separate possession in respect of the suit schedule property. The case of the plaintiffs before the trial Court is that, the plaintiff No.1 is the wife of late M. Ramakrishna. The Plaintiffs No.2 to 4 are children of late M. Ramakrishna and plaintiff No.1. The said M. Ramakrishna died on 06th May, 1987 leaving behind the plaintiffs as legal heirs to succeed to the estate of joint family consisting of his father Munishamappa and Narayamma.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>Defendant No.1 is the son of late Munishamappa. Defendant No.2 is the wife of Defendant No.1; Defendants No.3 to 6 are children of Defendants No.1 and 2.   Defendant No.7 is the purchaser of the suit items No.1 and 2 of the suit schedule property. Defendants No.8 and 9 are the children of late Munishamappa. The said late Munishamappa had four sons viz. M. Ramakrishna (the husband of the plaintiff No.1 and father of the plaintiffs No.2 to 4) defendant No.1 and defendant No.8 and defendant No.9. The Plaintiffs state that the said late Munishamappa’s family was a Hindu Joint family and the family had owned lands and house property situated at Machagondanahalli. The Plaintiffs further aver that defendants No.8 and 9, who are the sons of late Munishamappa, had left the Joint family after the death of their father; and in a family arrangement, left immovable properties to their brothers, i.e. the defendant No.1 and late M. Ramakrishna.   The defendant No.8 is settled at Shikaripura, Shimoga District and the defendant No.9 is settled at Shimoga and in view of the same, the defendant No.1 and late M. Ramakrishna continued to stay in the joint family consisting of the defendant No.1 being the eldest member of the said Hindu joint family sharing the proceeds from the joint family lands. It was further stated by plaintiffs that the defendant No.1 had no independent income. However, he was looking after the management of the joint family properties as karta of the said joint family and the said late M. Ramakrishna also used to assist the first defendant in cultivating joint family lands till the said M. Ramakrishna secured a job as driver in Karnataka State Road Transport Corporation and pursuant to the same, the said M. Ramakrishna shifted to Bangalore. Even after shifting to Bangalore, the plaintiffs used to visit to their native place frequently and stay in the joint family house and collect the share proceeds from the joint family lands. After the death of M. Ramakrishna on 06th May, 1987, the plaintiffs stayed for a brief time at Machagondanahalli. The plaintiffs further stated that land bearing survey No.13/2 of Machagondanahalli stands in the joint names of late M. Ramakrishna and the defendant No.1. Plaintiffs further stated that the first defendant had always been assuring the plaintiffs that they would be given their half share in all the joint family properties as and when the properties are being divided, as late M. Ramakrishna was entitled for half share in the said joint family properties. After some period, the plaintiffs came to know that the behaviour of defendant No.1 was not good and they suspected the ill-motive of the defendant No.1 that the defendant No.1 would deny legitimate share of the plaintiffs in respect of suit schedule property. When the things stood thus, the plaintiffs came to know that the defendants No.1 to 6 herein have sold the land bearing survey No.13/2 of Machagondanahalli through a registered sale deed dated 31st March, 2006 in favour of defendant No.7 (appellant herein) and when the same was questioned by the plaintiffs to the defendant No.1, he gave evasive reply and even thereafter he failed to take any steps with regard to allocation of share of plaintiffs, and as such, the plaintiffs issued a notice dated 26th July, 2006 to the defendants and pursuant to thereof, as the defendants No.1 to 7 having not complied with the demands made by the plaintiffs herein, they have raised objection with the revenue authorities for effecting transfer of mutation entries in favour of the defendant No.7 with regard to survey No.13/2 of Machagondanahalli. The plaintiffs further stated that the defendant No.7 is an influential and powerful person and in collusion with the defendants No.1 to 6 has purchased the item No.1 and 2 of schedule property. The plaintiffs further averred that the defendants No.1 to 6 have executed sale deed on 31st March, 2006 in favour of the defendant No.7 for a consideration less than the market value of the property and in view of the same, the plaintiffs have filed OS No.236 of 2006 on the file of the Senior Civil Judge and JMFC, Doddaballapur and sought for one-fourth share in all the suit schedule property by metes and bounds between the plaintiffs and defendants No.1 to 6, inter alia, sought for mesne profits under Order XX Rule 12 of the Code of Civil Procedure.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>After hearing the parties, the trial court has framed the following issues and additional issues:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 1.<span style=\"white-space:pre\">	</span>Whether the plaintiffs prove that the suit schedule properties are the joint family properties and they are in joint possession of the suit schedule property?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 2.<span style=\"white-space:pre\">	</span>Whether the defendants denied the share of the plaintiffs?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space:pre\">	</span>Whether plaintiffs are entitled for partition and mesne profits as prayed?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>Whether the suit of the plaintiffs is not maintainable for non-joinder of necessary parties?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space:pre\">	</span>Whether defendants prove that plaintiffs never objected for change of khata?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space:pre\">	</span>Whether the defendant No.7 proves that he is bonafide purchaser of the suit schedule property for consideration?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>what order or decree?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> Additional issue framed on 19.08.2011:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Whether defendant No.7 proves that 1st plaintiff had relinquished her right along with other plaintiffs in the schedule properties?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> Additional Issues framed on 22.11.2011:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space:pre\">	</span>Whether defendant No.1 proves that Ramakrishna after completion of his education went to Bangalore and got appointed as KSRTC Driver and marked with plaintiff No.1 and resided in Bangalore City along with plaintiffs and never turned to village?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 2.<span style=\"white-space:pre\">	</span>Whether defendant No.1 proves that suit land Sy.No.13/2 measuring 2 acre 15 guntas is his self-acquired property?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space:pre\">	</span>Having heard the learned counsel for the parties at length and on re-appreciating the evidence on record, the points that arise for consideration before this Court are:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space:pre\">	</span>Whether the trial Court is justified in ignoring Exhibit D1; and</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space:pre\">	</span>Whether the trial Court is justified in decreeing the suit?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>14.<span style=\"white-space:pre\">	</span>The undisputed factual aspect of the case is that the plaintiffs and the defendants No.1 to 6 & 8 and 9 are the members of the joint family of late Munishamappa and late Narayanamma.   The principal contention of the learned counsel for the plaintiffs is that the suit schedule property are the joint family property of the plaintiffs and the defendants No.1 to 6 & 8 and 9. The defendants No.8 and 9 have left the joint family after the death of Munishamappa in a family arrangement and as such they have no share in the suit schedule property and in view of the same, the remaining brothers viz. defendant No.1 and late Ramakrishna (husband of the plaintiff No.1 and father of plaintiffs 2 to 4) are entitled to half share each in the suit schedule property. In the light of the aforesaid pleadings, the contentions of the learned counsel is that the plaintiffs and Defendant No.1 have constituted joint family separately from that of the defendants No.8 and 9, as they had left the joint family on securing employment at Shivamogga, and as such, the defendant No.1 and late Ramakrishna continued to live in the ancestral house (suit item No.3). At the relevant point of time, late Ramakrishna and the defendant No.1 herein have contributed for purpose of land bearing survey No.13/2 measuring 1 acre 34 guntas jointly under a registered sale deed dated 17th December, 1965 Exhibit P10. Based on the sale deed, the revenue authorities have changed the mutation in favour of both Ramakrishna and the first Defendant as per Exhibit P20 and subsequently as Ramakrishna secured job as a Driver in Karnataka State Road Transport Corporation and pursuant to the same, the defendant No.1 was managing the joint family properties and out of the income of the said joint family, several properties have been purchased by the defendant No.1 under registered sale deed dated 02nd March, 2000 (Exhibit D3) and since the joint family came to be continued even after the death of Ramakrishna, the plaintiffs are entitled for one-fourth share in the suit schedule property.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>15.<span style=\"white-space:pre\">	</span>I have carefully gone through the impugned judgment and decree passed by the trial Court and having perused the evidence and on re-appreciating the same, based on the submissions made by the learned counsel for the parties, admittedly, the main contention of the defendant No.7 is that the plaintiff No.1 alone is the competent person to say about the execution of Exhibit D1. In fact, the said document was marked during the course of cross-examination of PW1-the son of plaintiff No.1. The plaintiff No.1 has not examined herself to dispute the execution of Exhibit D1 and has not subjected herself to cross-examination at the hands of Defendant No.7. It is the categorical admission of PW1 in his cross-examination that it is plaintiff No.1 who has the knowledge of the affairs of the family and the case pleaded in the plaint relating to existence of joint family and the existence of joint family properties. Since the plaintiff No.1 has not stepped into witness box and she being the competent person to depose about the execution of Exhibit D1, this court may have to draw adverse inference against the plaintiffs in view of illustration (g) to Section 114 of Indian Evidence Act, 1870. In the case of VIDHYADHAR (supra) the Hon\'ble Supreme Court at paragraph 16 of the judgment has observed thus:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>“Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh\'s case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors. , drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.”<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>16.<span style=\"white-space:pre\">	</span>The said aspect of law is further reiterated by the Hon\'ble Supreme Court in the case of MAN KAUR (supra) wherein the Hon’ble Supreme Court has observed as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><i>“11. To succeed in a suit for specific performance, the plaintiff has to prove: (a) that a valid agreement of sale was entered by the defendant in his favour and the terms thereof; (b) that the defendant committed breach of the contract; and (c) that he was always ready and willing to perform his part of the obligations in terms of the contract. If a plaintiff has to prove that he was always ready and willing to perform his part of the contract, that is, to perform his obligations in terms of the contract, necessarily he should step into the witness box and give evidence that he has all along been ready and willing to perform his part of the contract and subject himself to cross examination on that issue”<br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>18.<span style=\"white-space:pre\">	</span>In order to consider the contentions raised by the parties with regard to accepting the unregistered release deed Exhibit D1, the main question revolves around the fact is whether examination of that document to arrive at a conclusion could be used in evidence for collateral purpose? Admittedly, Exhibit D1 is an unregistered document which requires compulsory registration under Section 17 read with Section 49 of the Registration Act. The Hon\'ble Supreme Court in the case of SHIBANI BASU (supra) has taken note of the fact that if a document is required to be considered for evidence for a collateral purpose, the Court has to examine such documents that the effect of unregistered document could be used in evidence for adjudication of the suit. In other words, the Hon\'ble Supreme Court has observed that even non-registration of a particular document does not debar the use of such document which compulsorily requires registration for collateral purpose. That aspect has to be considered to arrive at a conclusion that Exhibit D1 may be considered for deciding the suit on merits to prove the jointess of the family properties.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>21.<span style=\"white-space:pre\">	</span>While interpreting Section 49 of the Registration Act, the Hon\'ble Supreme Court in the case of S. KALADEVI v. V.R. SOMASUNDARAM AND OTHERS reported in (2010)5 SCC 401 in the course of judgment at paragraphs 12 and 13 has held as follows: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><i>“12. The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. Proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs.100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of 1908 Act.<br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><i><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><i>This Court then culled out the following principles:-</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><i> \"1.  A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><i>2.<span style=\"white-space:pre\">	</span>Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem; white-space: pre;\">	</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.\"</span><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>24.<span style=\"white-space:pre\">	</span>It is apt to rely upon the law declared by the Hon\'ble Supreme Court in the case of YELLAPU UMA MAHESWARI AND ANOTHER v. BUDDHA JAGADHEESHWARARAO AND OTHERS reported in (2015)16 SCC 787 wherein it is held that nomenclature given to the document is not a decisive factor, but the nature of substance of all the transaction has been determined with reference to the terms of the documents. But admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. In the instant case, release deed Exhibit D1 makes it very clear as to relinquishment of right in respect of immovable property, though the document, compulsorily, is a registrable document and that the defendant No.7 has confronted the said document to PW1. In the suit, perusal of the entire plaint averments would not indicate or disclose about the relinquishment or release deed, however, at paragraph 18 of the written statement of defendant No.1, it refers to relinquishment deed Exhibit D1. Though defendant No.1 has not been examined as witness in the proceedings, however the said pleading made in the written statement would clearly indicate the fact that the suit schedule property are the self-acquired property of defendant No.1 and not the joint family property. Having considered the entire material produced by the parties at the time of evidence, the principal issue to be answered is that whether relinquish deed Exhibit D1 which is an unregistered document, can be relied upon for collateral purpose. On going through the recitals of Exhibit D1, it would clearly evidence the fact of past transaction of partition that has taken place in the family of Munishamappa wherein all the four sons of the joint family of Munishamappa have divided the joint family property and as such, the defendants No.8 and 9 have left the village pursuant to the same, and therefore, considering Exhibit D1 for collateral purpose pertaining to relinquishment of shares between the plaintiffs and defendants, would clearly prove the factum of partition or family arrangement between the parties prior to execution of release deed Exhibit D1, and therefore, under the circumstance of the given fact and in this background Exhibit D1 shall be considered as a collateral purpose to prove the severance of jointness and that partition took place between the joint family of Munishamappa, and therefore, the contentions raised by the learned counsel for the Respondents No.1 to 4 is liable to be rejected and accordingly rejected.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">25.<span style=\"white-space: pre;\">	</span>Suffice to say that the Hon\'ble Supreme Court in the case of SHIBANI VASU v. SANDIP RAY reported in AIR 2011 SC 509 has held that non-registration of a rent note did not debar the use of document that was to be compulsorily registrable as collateral purpose, and having applied the said principle to the case on hand, I am of the opinion that the trial Court has misconstrued the admissibility of Exhibit D1 for collateral purpose and on re-evaluation of the entire material on record with the aid of the law declared by the Hon\'ble Supreme Court as stated above, I am of the considered opinion that the trial Court was misguided in rejecting the Exhibit D1 as collateral purpose, and in that view of the matter also, the judgment and decree passed by the trial Court deserves to be set aside by this Court.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>26.<span style=\"white-space: pre;\">	</span>Section 49 of the Registration Act provides that a document purporting to be a relinquish deed and requires to be registered could not be admissible in evidence if the same is not registered. Proviso to this Section, however, as noted above, provide that an unregistered document in question may be looked into in evidence as collateral facts. The impugned judgment and decree passed by the trial Court is erroneous in nature having not followed the acceptance of an unregistered relinquishment deed Exhibit D1, for collateral purpose to determine the earlier family settlement, which had already determined the issue pertaining to partition among the joint family properties of late Munishamappa.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 27.<span style=\"white-space: pre;\">	</span>On careful evaluation of entire material on record and having re-appreciated the entire documents and on considering the law declared by this Court and the Hon\'ble Supreme Court with regard to considering a document as collateral one and to effectuate proper adjudication of the case, I am of the opinion that the contents of Exhibit D1 cannot be ignored while adjudicating the present suit. Apart from that, since the defendant No.1 and plaintiff No.1 have not stepped into witness box, and they are the competent persons to say about the alleged release deed Exhibit D1, in that view of the matter, adverse inference may have to be drawn against the plaintiffs. As also on perusal of cross-examination of plaintiff No.1, one can infer that the plaintiff No.1 has deliberately kept away from the proceedings, and therefore, the finding recorded by the trial Court with regard to issue No.2 is without any merit and hence requires to be re-appreciated, as stated supra, by following the law declared by the Hon\'ble Supreme Court with regard to acceptance of the document, i.e. Exhibit D1, for collateral purpose to arrive at the conclusion that the sale deed dated 31st March, 2006 executed by defendants No.1 to 6 in favour of defendant No.7 is valid and legal inter alia same is binding on the plaintiffs also. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">28.<span style=\"white-space: pre;\">	</span>While appreciating the evidence on record and the reasons assigned by the trial Court with regard to the issue framed above, this Court is conscious about the law declared by the Hon’ble Supreme Court in the case of SANTOSH HAZARI v. PURUSHOTTAM TIWARI (DECEASED) BY LRs reported in (2001)3 SCC 179; and in the case of JAMILA BEGUM (DEAD) THROUGH LEGAL REPRESENTATIVES v. SHAMI MOHD. (DEAD) THROUGH LRs AND ANOTHER reported in (2019)2 SCC 727 wherein it is observed by the Hon\'ble Supreme Court that the Court of First Appeal has jurisdiction to reverse or affirm the findings of the trial Court, and if the First Appellate Court takes a different view, the judgment of the First Appellate Court must show the conscious application of mind and record its findings based on the evidence adduced by the parties and judgment must record the reasons as to why the First Appellate Court differs from the judgment of the trial Court. In the case on hand, the trial Court has not properly appreciated the evidence on record and the points framed for determination; and the evidence adduced by the parties has been misconstrued with that of the pleadings in the suit. For these reasons also the judgment and decree passed by the trial Court requires to be set aside. In view of the discussions made above, I am of the opinion that the finding recorded by the trial Court with regard to issue No.1 to 3 is to be reversed on the ground that the plaintiffs have failed to prove that the suit schedule property are joint family properties of Munishamappa and thereby the plaintiffs are not entitled for partition and mesne profits as claimed in the suit. Further, the finding recorded by the trial Court with regard to issue No.6 is set aside for the reasons stated hereinabove, that defendant No.7 has proved that he is bona fide purchaser of suit schedule property for consideration and also proved that the plaintiff No.1 had relinquished her right along with other plaintiffs in the schedule properties.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>1.<span style=\"white-space: pre;\">	</span>Appeal is allowed.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '9a55d630117c71f9fa0307d6d04d7acf.JPG', '8ed21eaa0cb63bcb1c237ebd9daaafb8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-25', 1, '', '', '2023-07-24 15:53:28', '2023-07-25 08:06:49');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3241, 'rJNRYO3LGAR11cAOqq3X6O92s', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Resjudicata applies even to wrong decisions. Judgment which has attained finality intra-parties cannot be re-opened simply because the legal position is altered in another subsequent judgment. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Venkatesh and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 11112 of 2021 decided on 21 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sachin Shankar Magadum.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The captioned writ petition is filed by the legal\r\nheirs of the original grantee seeking a writ in the\r\nnature of mandamus to the respondents to forthwith\r\nrestore peaceful vacant possession of the schedule\r\nproperty in terms of the order dated 25.7.1986 passed\r\nby respondent No.3 in No.KSC:ST:122 to 132/79-80\r\nas per Annexure-B.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts leading to the case are as under:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The father of the petitioners namely Krishna\r\nbelonged scheduled caste. The authorities granted\r\npetition land to the petitioners\' father under Rule\r\n43(G) of the Mysuru Land Revenue Rules. The upset\r\nprice of the land was fixed at Rs.300/- per acre and\r\nthe land was granted by waiving price of Rs.200/- per\r\nacre. On similar terms, one acre land each was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">granted to twenty other persons belonging to\r\nScheduled Caste.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 3. The original grantee during his life time\r\nsold the land in favour of respondent No.4. After\r\ncoming into force of the Karnataka Scheduled Castes\r\nand Scheduled Tribes (Prohibition of Transfer of\r\nCertain Lands) Act, 1978, (for short \"PTCL Act\")\r\nproceedings were initiated under Section 5 of the said\r\nAct against the father of respondent No.4-Bhoomi\r\nReddy in respect of all ten piece of lands which were\r\nsubject matter of alienation in contravention of the\r\ngrant condition. Third respondent-Assistant\r\nCommissioner vide order dated 25.7.1986 (AnnexureB) ordered for resumption of land by declaring the\r\ntransaction in favour of respondent No.4 as null and\r\nvoid. The said order was upheld by the Deputy\r\nCommissioner under Section 5A of the PTCL Act.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The purchaser however questioned the\r\norder of restoration before this Court in\r\nW.P.12518/1987. The Co-ordinate Bench of this Court\r\nset aside the order of restoration on the ground that\r\nthe grant was made on the reduced upset price and\r\ntherefore, condition of non-alienation provided under\r\nRule 43(G) (4) is not applicable. The order of the\r\nlearned Single Judge was taken in an appeal before\r\nthe Division Bench in W.A.No.1481/1991 by some of\r\nthe Co-grantees of the petitioners\' father. State\r\npreferred writ appeal in WA.No.2142/1992 assailing\r\nthe order of the learned Single Judge passed in W.P.\r\n12518/1987. The Division Bench dismissed the appeal\r\nand thereby confirmed the order of the learned Single\r\nJudge. The review petition filed in CP.No.897/1996\r\nwas also dismissed vide order dated 15.2.1999.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">12. The petitioners in the captioned writ\r\npetition is seeking a mandamus to direct the official\r\nrespondents to restore possession in the light of the\r\nlaw laid down by the Apex Court in the case of\r\nSiddegowda(supra). Reliance is also placed on the\r\njudgment rendered by the Co-Ordinate Bench in\r\nW.P.No.21583/2009 has taken a contrary view. The\r\nCo-Ordinate Bench while declining the claim of the\r\npurchasers was also not inclined to take cognizance of\r\nthe order passed in W.P.12518/1987 and\r\nWA.No.2142/1992. The Co-ordinate Bench, on the\r\ncontrary, placed reliance on the judgment rendered by\r\nthe Apex Court in Siddegowda\'s case. The Apex\r\nCourt in the above said case held that the provisions </span><span style=\"font-size: 12pt;\">(prohibition) apply when land is allotted to grantee for\r\nprice less than market value and the same is alienated\r\nwithin 15 years of such grant.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>13. Therefore, the question that requires\r\nconsideration at the hands of this Court is as to\r\nwhether the relief sought in the captioned writ petition\r\ncan be entertained by ignoring the judgment rendered\r\nin W.P.No.12518/1987, which is confirmed by the\r\nDivision Bench in W.A.No.2142/1992. The next\r\nquestion that requires consideration at the hands of\r\nthis Court is as to whether the judgment rendered by\r\nthe Co-Ordinate Bench in W.P.21583/2009 would\r\nautomatically over-rule the judgment rendered in\r\nW.P.No.12518/1987. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">15. The restoration order passed by respondent\r\nNo.3-Assistant Commissioner vide order dated\r\n25.7.1986 declaring the alienation in favour of Bhoomi\r\nReddy as null and void and confirmed by the Deputy\r\nCommissioner is reversed by the Co-Ordinate Bench\r\nof this Court in W.P.12518/1987 and confirmed by the\r\nDivision Bench in W.A.2142/1992. It is a trite that law\r\nfavours finality to binding judicial decisions\r\npronounced by Courts that are competent to deal with\r\nthe subject matter. The binding character of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">judgments pronounced by the Courts of competent\r\njurisdiction has always been treated as an essential\r\npart of the rule of law. This Court may gainfully refer\r\nto the decision of the Constitution Bench of the Apex\r\nCourt rendered in the case of Daryao .vs. State of\r\nU.P.8\r\n, wherein Apex Court summed up the law in the\r\nfollowing words:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>\"It is in the interest of the public at large\r\nthat a finality should attach to the binding\r\ndecisions pronounced by Courts of competent\r\njurisdiction, and it is also in the public interest\r\nthat individuals should not be vexed twice over\r\nwith the same kind of litigation.(***) The binding\r\ncharacter of judgments pronounced by courts of\r\ncompetent jurisdiction is itself an essential part of\r\nthe rule of law, and the rule of law obviously is\r\nthe basis of the administration of justice on which\r\nthe Constitution lays so much emphasis.\"</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. The petitioner\'s father has accepted the\r\norder passed by this Court in W.P.No.12518/1987.\r\nThe writ appeal preferred by the co-grantees in\r\nW.P.No.1481/1991 was also dismissed for non- <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">prosecution, while State\'s appeal in WA.2142/1992 is\r\ndismissed on merits and review petition is also\r\ndismissed. Though Apex Court in a subsequent\r\nlitigation while interpreting Rule 43 G(4) of Karnataka\r\nLand Revenue Rules, 1956 held that prohibition in\r\nrespect of land granted for an upset price would apply,\r\nbut the judgment rendered by the Co-Ordinate Bench\r\nin W.P.12518/1987 would operate as a res judicata.\r\nThe law laid down by the Apex Court in the case of\r\nSiddegowda at the most can be treated as a change\r\nin law but that would not upset the earlier judgments.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. That even erroneous decisions can operate\r\nas a res judicata is also fairly well settled by a long\r\nline of decisions rendered by Apex Court. In Mohanlal\r\nGoenka .vs. Benoy Kishna Mukherjee9\r\n . The Apex\r\nCourt observed:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\"There is ample authority for the proposition\r\nthat even an erroneous decision on a question of\r\nlaw operates as \'res judicata\' between the parties\r\nto it. The correctness or otherwise of a judicial\r\ndecision has no bearing upon the question\r\nwhether or not it operates as \'res judicata\".</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Similarly, in State of West Bengal .vs.\r\nHemanth Kumar Bhattacharjee, Apex Court\r\nreiterated the above principles in the following words:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\"A wrong decision by a court having jurisdiction\r\nis as much binding between the parties as a right\r\none and may be superseded only by appeals to\r\nhigher tribunals or other procedure like review\r\nwhich the law provides.\" <br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>The decision rendered by the Apex Court in\r\nKalinga Mining Corporation .vs.Union of India is a timely reminder of the very same principle. The\r\nfollowing passage in this regard is apposite:\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\"In our opinion, if the parties are allowed to\r\nreagitate issues which have been decided by a\r\ncourt of competent jurisdiction on a subsequent\r\nchange in the law then all earlier litigation\r\nrelevant thereto would always remain in a state of\r\nflux. In such circumstances, every time either a\r\nstatute or a provision thereof is declared ultra </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">vires, it would have the result of reopening of the\r\ndecided matters within the period of limitation\r\nfollowing the date of such decision.\"\r\n</span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18. Therefore, on reading the above said\r\nprinciples culled out supra, what emerges is that the\r\nCourt is not concerned with the correctness or\r\notherwise of the earlier judgment. It is equally trite\r\nthat even in regard to mixed question of law and facts\r\ndetermined in the earlier proceedings between the\r\nsame parties, cannot be revived or reopened in a\r\nsubsequent proceedings between the same parties.\r\nHaving said that, I may add that the only exception to\r\nthe doctrine of res judicata is fraud that vitiates the\r\ndecision and renders it a nullity. The petitioner\'s\r\nfather and petitioner herein having not chosen to take\r\nit further by assailing the order of the Co-Ordinate\r\nBench in W.P.12518/1987 are definitely precluded\r\nfrom re-opening or re-contesting the issue that has\r\nbeen finally decided.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. Though learned counsel appearing for the\r\npetitioners has placed reliance on the judgment\r\nrendered by the Apex Court in U.P. Pollution Control\r\nBoard .vs. Konoria Industrial Limited . I am of\r\nthe view that the principles laid down in the said case\r\nare not applicable to the present case on hand. That\r\nwas a case where matter arose under public law\r\nwhere the validity of the particular provision was\r\nunder challenge. The Apex Court in the given set of\r\nfacts held that refund may be granted on principle of\r\npublic interest and equity, more so, where no case of\r\nunjust enrichment is made out. The Apex Court in the\r\nsaid case was dealing with the binding nature of the\r\njudgment rendered by the Apex Court under Article\r\n141 of Constitution. The Apex Court dealt with the\r\nlegal position which was explained in Shenoy and\r\nCompany .vs. CTO 13where Apex Court declared a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">law under Article 141 of Constitution and therefore,\r\nthe Apex Court was of the view that the conclusion\r\nreached in such a case as to the validity of the levy\r\nwould apply not only to the parties before the Court\r\nbut the same has to be extended to other cases where\r\nsimilar issue is involved. However the said proposition\r\nhas no application to the present case on hand as the\r\nmatter that arose for consideration does not fall within\r\nthe purview of the public law and it being a\r\nadversarial litigation, the principle of res judicata and\r\nestoppel would be applicable more particularly when a\r\ndecision of Court has attained finality and therefore,\r\nthe same would bind the petitioner\'s father as well as\r\nthe present petitioner.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Whether Writ Petition is liable to be dismissed\r\non the ground of inordinate delay:</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">20. When the writ jurisdiction is invoked with\r\ninordinate delay, the unexplained delay has to be </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">examined by the Court. Further, the inordinate delay\r\ncoupled with creation of third party rights in the\r\nmeanwhile is an important factor which always weighs\r\nin deciding whether or not to exercise such\r\njurisdiction. In the present case on hand, there is\r\ninordinate and unexplained delay and in the\r\ninterregnum the rights of a purchaser has stood\r\ncrystallized. There are catena of judgments which\r\nstate that delay and laches extinguish\r\nthe right to put forth a claim. The restoration order\r\npassed by assistant commissioner was set aside by\r\nthis Court in 2001 and the captioned petition is filed in\r\n2020 and therefore this Court is not inclined to\r\nexercise discretion in favour of petitioners who are\r\nguilty of laches. The plea based on justice,\r\nequity and good conscience is no good alibi\r\ninexpiation of the sin of gross delay. The writ Court\r\nshould not entertain stale causes . There can be no </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">automatic extension of the benefit\r\nof a judgment rendered by coordinate bench, more\r\nparticularly when petitioner has\r\napproached this Court after a long delay of 20 years.\r\nThe Apex Court has consistently\r\nreiterated that such petitions should not be considered\r\nignoring the delay and laches. In a case\r\nwhere petitioner approaches the Court after coming to\r\nknow of the relief granted by the Court\r\nin similar cases, the same cannot furnish a proper\r\nexplanation for delay and laches. A\r\nlitigant cannot wake up from deep slumber and claim\r\nimpetus from the judgment rendered\r\nby co-ordinate bench subsequently covering identical\r\nissue. Therefore, I am more than\r\nsatisfied that the petitioners in the instant case,\r\nthough, similarly situated are not entitled for\r\nreliefs. The Court should bear in mind impact of delay </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">vis-à-vis the rights of the respondents purchasers. In\r\nview of subsequent developments and in the light of\r\nlaw laid down by Apex Court in the case\r\nof Nekkanti Rama Lakshmi .vs. State of\r\nKarnataka and another14 and Vivek M. Hinduja\r\n.vs. M. Aswatha , the rights of petitioners, if any,\r\nhave stood eroded and since the\r\njurisdiction under Article 226 of Constitution is\r\ndiscretionary, as much as it is extraordinary,\r\nthe ultimate guide for the Court would be its innate\r\nsense of justice, and it would, in\r\nsubstance, boil down to self-imposed limitation to be\r\nexercised wisely, depending upon the facts of the\r\ncase. Having regard to the facts and circumstances of\r\nthe case, I am not inclined to grant any relief to the\r\npetitioners even on the ground of delay.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n The writ petition is dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c28713059afe0e0435feb20ea2110536.JPG', '330a255cd5346e2e76988a8ecea611fa.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-26', 1, '', '', '2023-07-25 12:32:19', '2023-07-26 03:22:10'),
(3242, 'ikuzU0tyzhiI2SYz2fmlozLop', 'TSUhvAg9KIuGOC5DrA7yLvekJ', ' Workmen\'s Compensation Act. Mere deposit of award amount with interest before the appellate court while challenging the award will not absolve the appellant from paying interest till the realisation of the award. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Divisional Manager Vs Nagaraj.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 201824 of 2023 decided on 7 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The respondent had filed a claim petition in\r\nW.C.No.164/2011 before the II-Additional Senior\r\nCivil Judge and JMFC, Raichur wherein the\r\ncompensation of Rs.4,02,416/- was awarded along\r\nwith interest at the rate of 12% per annum\r\ncalculated from 24.11.2011 till the date of\r\nrealization. Aggrieved by the same, the petitioner\r\nhas filed a Miscellaneous First Appeal in MFA\r\nNo.31199/2013 which came to be dismissed on\r\n08.04.2022. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The petitioner-Insurance Company deposited the\r\naward amount of Rs.4,02,416/- before preferring the\r\nappeal along with interest of Rs.81,498/- calculated\r\nfrom 24.11.2011 till 01.08.2013, i.e., till the date of\r\ndeposit.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n5. An execution petition having been filed, the\r\nExecuting Court directed the petitioner-Insurance\r\nCompany to make payment of balance interest of\r\nRs.3,37,014/- calculated from 01.08.2012 till the\r\ndate of the order namely 19.04.2023. It is\r\nchallenging the said order, the petitioner-Insurance\r\nCompany is before this Court.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. It is not in dispute that the claim petition filed in\r\nW.C.No.164/2011 came to be allowed and the\r\npetitioner was directed to make payment of\r\ncompensation of Rs.4,02,416/- along with interest at\r\nthe rate of 12% per annum calculated from\r\n24.11.2011 till the date of realisation. Certain\r\namounts were deposited on 01.08.2013, before the\r\nWorkmen\'s Compensation, Commissioner, along with\r\ninterest at the rate of 12% per annum amounting to\r\nRs.81,498/-. Thus, as on the date of deposit the\r\nprincipal amount as also interest was deposited\r\nbefore the Workmen\'s Compensation, Commissioner,\r\nbut was not paid to the claimant. The application\r\nhaving been made by the claimant for release of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">amount, it came to be objected to by contending that\r\nMFA No.31199/2013 had been filed where the award\r\nwas challenged and stay was sought for. Thus, it is\r\non account of objections of the petitioner that the\r\npayment could not be released. From the records, it\r\nis seen that the application filed by the claimant for\r\nrelease of the deposited amount, before the\r\nWorkmen\'s Compensation Commissioner as far back\r\nas on 16.11.2013 was opposed by the petitioner.\r\nApart therefrom, the petitioner-Insurance company\r\nhad also written to the Workmen\'s Compensation\r\nCommissioner on 21.11.2014 requesting not to\r\ndisburse the deposited amounts. It is in that\r\nbackground that the amounts were finally released in\r\nfavour of the claimant on 17.02.2023 and thereafter,\r\nthe application had been filed by the claimant for\r\nissuance of direction on account of non-payment of\r\nbalance interest. It is this interest which was\r\ncalculated by the Executing Court and a direction\r\nissued for payment of balance interest of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rs.3,37,015/- by providing an opportunity before\r\nissuance of coercive steps.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n8. Whenever any judgment or award is passed in favour\r\nof a party, be it a claimant or a plaintiff such party\r\nwould be entitled for the principal amount and\r\ninterest thereon till the date of receipt of the\r\namounts. Merely because, the defendant or the\r\njudgment debtor were to deposit the amounts in a\r\nCourt of law or as done in this case before the\r\nWorkmen\'s Compensation Commissioner, the\r\nobligation to pay the amounts would not cease. What\r\nis of relevance is for the claimant or plaintiff to\r\nreceive the monies which have been ordered in his or\r\nher favour, the deposit of the money either in a Court\r\nor by a fixed deposit would not enure to the benefit\r\nof the plaintiff/claimant thereby depriving him of the\r\nbeneficial use of the money, such deprivation being\r\nas a result of a judgment debtor or the petitioner in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the present case not releasing money in favour of the\r\nclaimant/decree holder/plaintiff.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. It is the Petitioner- judgment debtor who took on the\r\nrisk of continued accrual of interest on the said\r\namount, till the actual payment thereon. If at all the\r\njudgment debtor wishes for the interest to stop\r\nrunning, then the payment is required to be made to\r\nthe decree-holder and mere deposit would not\r\nsuffice, since the deposit made would not enure to\r\nthe benefit of the decree holder.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">10. As such, the contention now raised by the learned\r\ncounsel for the petitioner - Insurance Company that\r\nfrom and on the date of deposit before the\r\nWorkmen\'s Compensation Commissioner, the interest\r\nwould stop running cannot be accepted in the\r\nabsence of payment being received by the\r\nplaintiff/claimant/ decree holder. In the event of the\r\ndeposited amount being kept in Fixed deposit any </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">nterest accrued thereon would stand to the credit of\r\nthe judgment debtor and the same can be utilised to\r\nmake payment of the accrued interest.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n11. There being no merit in the above petition and no\r\ngrounds made out, the petition stands dismissed at\r\nthe admission stage itself.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8df68caffd268d6bb36b2825a06780ab.JPG', '238a8a8adfc808443c7ffaea25fa1804.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-26', 1, '', '', '2023-07-25 12:48:59', '2023-07-26 12:33:43'),
(3243, 'IuaNAztXVjIOOCC8OSWiU9fCJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Land Revenue Act. Deputy Commissioner has no jurisdiction to reject the application for conversion of land after the expiry of four months when the deeming clause under Section 95 (5) applies. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vinod Kumar Vs The Deputy Commissioner.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 104023 of 2023 decided on 18 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court assailing the\r\nendorsement at Annexure-C, dated 20.02.2023 issued by\r\nthe respondent and he has also sought for a writ of\r\nmandamus to the respondent to issue conversion order in\r\nrespect of the land bearing Sy.No.123/1 measuring\r\n3 acres situated at Aladalli, Taluka & District Ballari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The petitioner, who is the owner of the\r\nagricultural land bearing Sy.No.123/1 measuring 3 acres\r\nsituated at Aladalli, Taluka & District Ballari (for short \"the\r\nland in question\") had made an application before the\r\nrespondent on 29.09.2022 seeking conversion of the land\r\nin question from agricultural to non-agricultural purpose.\r\nThe same has been rejected by the Deputy Commissioner\r\nvide the impugned endorsement at Annexure-C, dated\r\n20.02.2023. Being aggrieved by the same, the petitioner\r\nis before this Court. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">6. The material on record would go to show that\r\nthe application has been filed by the petitioner seeking\r\nconversion of the land in question from agricultural to nonagricultural purpose on 29.09.2022. The impugned\r\nendorsement is issued on 20.02.2023, which is beyond the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">period of 120 days from the date of filing the application.\r\nA reading of Section 95(5) of the Karnataka Land Revenue\r\nAct, 1964 makes it very clear that in the event the Deputy\r\nCommissioner / competent authority fails to inform the\r\napplicant of his decision on the application made under\r\nsub-Section (2) of Section 95 within a period of four\r\nmonths, from the date of receipt of the application, the\r\npermission applied for shall be deemed to have been\r\ngranted. This question was considered by the Co-ordinate\r\nBench of this Court in W.P. No.461/2020, disposed off on\r\n14.02.2020, wherein at paragraph No.18, it has been\r\nobserved as follows:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\"18. The Coordinate Bench of this Court in the case\r\nof Rudraswamy vs. Deputy Commissioner reported\r\nin MANU/SC/0398/1980: ILR 1994 Kar. 2958 while\r\nconsidering the effect of deemed provision under\r\nSection 95(5) of the Act held at paragraph-8 as\r\nunder:</span><span style=\"font-size: 12pt;\"> </span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span lang=\"EN-US\">\'8. Under sub-section (5) of Section 95,\r\nit has been provided that if the Deputy\r\nCommissioner fails to inform the\r\napplicant of his decision on the\r\napplication made under sub-section (2)\r\nwithin a period of 4 months from the\r\ndate of receipt of the application, the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">permission shall be deemed to have\r\nbeen granted. The deeming clause, it is\r\nwell known, leads to an assumption in\r\nlaw of a fact as if the fact has taken\r\nplace in reality though it might not have\r\ntaken place. When law provided that\r\nthing is deemed to have happened,\r\nthen in the eye of law, it will be taken\r\nas happened though it might not have\r\noccurred in fact. It is well settled\r\nprinciple of law and rule of\r\ninterpretation that a deeming provision\r\nhas to be given its full effect. Reference\r\nin this regard may be made to the\r\nfollowing Decisions of the Supreme\r\nCourt.</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>\r\n(a) State of Bombay Vs.\r\nPandurang Vinayak and others\r\n(MANU/ SC/ 0025/ 1953 :\r\nAIR 1953 SC 244)</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>\r\n(b) Consolidated Coffee Ltd Vs. Coffee\r\noard (MANU/SC/0398/1980 : AIR 1980\r\nSC 1468)</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Then it means that the\r\npermission is to be deemed to have\r\nbeen granted on the expiry of the\r\nperiod of 4 months i.e., on the expiry of\r\nfour moths period as aforesaid. It shall\r\nbe deemed that the Deputy\r\nCommissioner has granted permission\r\nand once this deeming clause applies,\r\nthe jurisdiction of the authority of\r\nthe Deputy Commissioner to reject the\r\napplication ceases and gets exhausted.\"</span><span style=\"font-size: 12pt;\"> </span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Under the circumstances, even this writ petition\r\nis required to be disposed off in terms of the orders passed\r\nin the aforesaid writ petition.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The writ petition is partly allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '004dbf2ff064ce7d7f1d9cb125c4637b.jpeg', 'b1fb36381d8ffba825eff83c56840235.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-26', 1, '', '', '2023-07-25 13:34:55', '2023-07-26 08:10:27');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3244, 'IkRmBpZ1YA70nan88DDcoATWt', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Income Tax Act. Magistrate can take cognizance for the offences under Sections 277 and 278 only on the basis of complaint by the authorized officer with prior sanction from the competent Authority. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vishwanath C Tarali Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.P 200847 of 2022 decided on 16 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The brief facts of the case are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The 2nd respondent lodged the FIR in Crime\r\n No.121/2010 against the petitioner and two others for the\r\n offences punishable under Sections 109, 177, 192, 196,\r\n 417, 420, 463, 464 read with Section 34 of IPC, alleging\r\n that, the accused, by conniving with each other, have\r\n filed false returns with the Income Tax department\r\n claiming refunds from the Income Tax department. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Before lodging the FIR, the 2nd respondent had\r\nfiled a private complaint under Section 200 of Cr.PC before the\r\njurisdictional Magistrate against the petitioner and two others\r\nalleging that, the petitioner, by conniving with each other, have\r\nfiled false returns for claiming refund from the Income Tax\r\ndepartment.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 5. The learned Magistrate, after perusing the\r\ncomplaint, took the cognizance for the offences punishable\r\nunder Sections 277 and 278 of the Income Tax Act. Since, the\r\npetitioner herein was prosecuted for the same transaction\r\nsimultaneously, the learned Magistrate, after considering the\r\nmaterial on record, allowed the application, and discharged the\r\npetitioner from the aforesaid offences in the case arising out of\r\nthe private complaint filed by the 2nd respondent.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 6. The petitioner is before this Court challenging the\r\ncognizance taken by the learned Magistrate on the basis of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">final report submitted by the police under Section 173(2) of\r\nCr.PC. Hence, this petition.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. The allegation against the petitioner is that, he\r\nalong with other accused, by conniving with each other, filed\r\nreturns fraudulently for claiming refund of tax from the Income\r\nTax department. The allegation of claiming refund of tax by\r\nfiling the false returns is contravening under Sections 277 and\r\n278 of the Income Tax Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 11. The Sections 277, 278, 279 and 280B of the\r\nIncome Tax Act are relevant and are reproduced as follows:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i> \"277. If a person makes a statement in any verification\r\nunder this Act or under any rule made thereunder, or\r\ndelivers an account or statement which is false, and\r\nwhich he either knows or believes to be false, or does\r\nnot believe to be true, he shall be punishable,-</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i> i) in a case where the amount of tax, which\r\n would have been evaded if the statement or account\r\nhad been accepted as true, exceeds [twenty-five\r\nhundred thousand rupees], with rigorous\r\n imprisonment for a term which shall not be less than <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">six months but which may extend to seven years\r\nand with fine;</span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> ii) in any other case, with rigorous\r\n imprisonment for a term which shall not be\r\nless than three months but which may extend\r\nto [two years] and with fine].</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i><br></i></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>278. If a person abets or induces in any manner\r\nanother person to make and deliver an account of a\r\nstatement or declaration relating to [any income or any\r\nfringe benefits chargeable to tax] which is false and\r\nwhich the either knows to be false or does not believe to\r\nbe true or to commit an offence under sub-section (1)\r\nof section 276C, he shall be punishable.-</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i> i) in a case where the amount of tax, penalty\r\n or interest which would have been evaded,\r\n if the declaration, account or statement\r\n had been accepted as true, or which is\r\n wilfully attempted to be evaded, exceeds\r\n [twenty-fivehundred thousand rupees]with\r\n rigorous imprisonment for a term which\r\n shall not be less than six months but which\r\n may extend to seven years and with fine;</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\r\n ii) in any other case, with rigorous\r\n imprisonment for a term which shall not be\r\n less than three months but which may\r\n extend to [twoyears] and with fine.]<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>279. Prosecution to be at the instance of [Principal\r\nChief Commissioner or Chief Commissioner] or [Principal\r\nCommissioner or Commissioner].— [(1) A person shall\r\nnot be proceeded against for an offence under Section\r\n275-A, [Section 275-B], Section 276, Section 276-A,\r\nSection 276-B, Section 276-BB, Section 276-C, Section\r\n276-CC, Section 276-D, Section 277 [, Section 277-A]\r\nor Section 278 except with the previous sanction of\r\nthe [Principal Commissioner or Commissioner] [or Joint\r\nCommissioner (Appeals) or Commissioner (Appeals)] or\r\nthe appropriate authority:</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\r\nProvided that the [Principal Chief Commissioner or Chief\r\nCommissioner] or, as the case may be, [Principal\r\nDirector General or Director General] may issue such\r\ninstructions or directions to the aforesaid income tax\r\nauthorities as he may deem fit for institution of\r\nproceedings under this sub-section. <br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>(1-A) A person shall not be proceeded against for an\r\noffence under Section 276-C or Section 277 in relation\r\nto the assessment for an assessment year in respect of\r\nwhich the penalty imposed or imposable on him\r\nunder [Section 270-A or] clause (iii) of sub-section (1)\r\nof Section 271 has been reduced or waived by an order\r\nunder Section 273-A. </i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>[(2) Any offence under this Chapter may, either before\r\nor after the institution of proceedings, be compounded\r\nby the [Principal Chief Commissioner or Chief\r\nCommissioner] or [Principal Director General or Director\r\nGeneral].]</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>(3) Where any proceeding has been taken against any\r\nperson under sub-section (1), any statement made or\r\naccount or other document produced by such person\r\nbefore any of the income tax authorities specified in\r\nclauses (a) to (g) of Section 116 shall not be\r\ninadmissible as evidence for the purpose of such\r\nproceedings merely on the ground that such statement\r\nwas made or such account or other document was\r\nproduced in the belief that the penalty imposable would\r\nbe reduced or waived under Section 273-A or that the\r\noffence in respect of which such proceeding was taken\r\nwould be compounded. <br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>[(4) The Central Government may make a scheme, by\r\nnotification in the Official Gazette, for the purposes of\r\ngranting sanction under sub-section (1) or compounding <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under sub-section (2), so as to impart greater\r\nefficiency, transparency and accountability by—</span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(a) eliminating the interface between the income tax\r\nauthority and the assessee or any other person to the\r\nextent technologically feasible;</i></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>\r\n(b) optimising utilisation of the resources through\r\neconomies of scale and functional specialisation;</i></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(c) introducing a team-based sanction to proceed\r\nagainst, or for compounding of, an offence, with\r\ndynamic jurisdiction.</i></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(5) The Central Government may, for the purpose of\r\ngiving effect to the scheme made under sub-section (4),\r\nby notification in the Official Gazette, direct that any of\r\nthe provisions of this Act shall not apply or shall apply\r\nwith such exceptions, modifications and adaptations as\r\nmay be specified in the notification:\r\nProvided that no direction shall be issued after the 31st\r\nday of March, 2022.</i></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(6) Every notification issued under sub-section (4) and\r\nsub-section (5) shall, as soon as may be after the\r\nnotification is issued, be laid before each House of\r\nParliament.]</i></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i><br></i></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>[280-B. Offences triable by Special Court.—\r\nNotwithstanding anything contained in the Code of\r\nCriminal Procedure, 1973 (2 of 1974),—</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>(a) the offences punishable under this chapter shall be\r\ntriable only by the Special Court, if so designated, for\r\nthe area or areas or for cases or class or group of cases,\r\nas the case may be, in which the offence has been\r\ncommitted:\r\nProvided that a court competent to try offences under\r\nSection 292,—</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\r\n(i) which has been designated as a Special Court under\r\nthis section, shall continue to try the offences before it\r\nor offences arising under this Act after such designation;\r\n(ii) which has not been designated as a Special Court\r\nmay continue to try such offence pending before it till its\r\ndisposal;</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>(b) a Special Court may, upon a complaint made by an\r\nauthority authorised in this behalf under this Act take\r\ncognizance of the offence for which the accused is\r\ncommitted for trial.]\" </i><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Section 279 of the Income Tax Act specifies that, a\r\nperson shall not be proceeded against for an offence under\r\nSections 277 and 278 of the Income Tax Act except with the\r\nprevious sanction of the competent Authority as enumerated\r\ntherein.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>13. Section 280B deals with the offences triable by\r\nSpecial Court. A reading of the provision indicates that, the\r\noffences punishable in this chapter shall be triable only by the\r\ndesignated Special Court, and Clause (B) to the said provision\r\nspecifies that, a Special Court may upon a complaint made by\r\nan authority authorized in this behalf take cognizance of the\r\naforesaid offences for which the accused is committed for trial.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n 14. A conjoint reading of Sections 279 and 280B of the\r\nAct specifies that, the Special Court can take cognizance of the\r\noffences punishable under Chapter-XXII only upon a previous\r\nsanction granted by the Authority on a complaint by an\r\nauthorized officer. In other words, the learned Magistrate can\r\ntake cognizance only on the basis of complaint by the\r\nauthorized officer after obtaining sanction from the competent\r\nAuthority, and not on the basis of final report submitted by the\r\npolice under Section 178 of Cr.PC. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. In view of preceding analysis, I am of the view that,\r\nthe cognizance taken by the learned Magistrate on the basis of\r\nthe final report submitted by the police is one without authority\r\nof law. Hence, the continuation of criminal proceeding will be\r\nan abuse of process of law.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> i) Criminal petitions stand allowed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'c077c7a0af0c3fad50c0e210805164be.jpeg', '6290722b446e0336b346f6bf6f11cad4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-26', 1, '', '', '2023-07-25 15:03:11', '2023-07-26 06:24:30'),
(3245, 'Uo9YSV5zZUp096jAKS7SPQw5D', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Unauthorized occupant cannot claim adverse possession in respect of property which belongs to statutory body. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bangalore Development Authority Vs Venkataramanaiah Thr LRS and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular First Appeal 23 of 2008 decided on 9 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.T. Narendra Prasad.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This appeal is filed by the second defendant\r\nBangalore Development Authority (for short, ‘the BDA’)\r\nunder Section 96 r/w. Order XLI Rule 1 of Civil Procedure\r\nCode challenging the judgment and decree dated\r\n10.08.2007 passed by the XVI Additional City Civil &\r\nSessions Judge, Bangalore, in O.S.No.6127/1996, whereby\r\nthe suit filed by the plaintiff has been decreed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The case of the plaintiff is that he is the\r\nabsolute owner in possession and enjoyment of the\r\nresidential property bearing No.59 new No.279 situated at\r\n20th Main road, Hosahalli Extension, Kempapura Agrahara,\r\nnow it is known as Magadi road, Chord Road Extension\r\nLayout, Bangalore-40, measuring East-West – 30 ft. and\r\nNorth-South – 60 ft., which was purchased by him from its\r\nprevious owner – M.Munivenkatappa under a registered <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sale deed dated 30.05.1964. Thereafter, he has\r\nconstructed a building, approximately in 8 squares, part of\r\nthe building in RCC towards north and asbestos sheets\r\ntowards south. He constructed the building in the year\r\n1965 and he was residing in the said property.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The further case of the plaintiff is that suit schedule\r\nproperty was not acquired by the second defendant, no\r\nnotification has been issued in this regard and no award\r\nhas been passed. Hence, the plaintiff is in an\r\nuninterrupted possession and enjoyment of the suit\r\nproperty right from 1964 till the date of filing the suit and\r\nhe has perfected his title by adverse possession.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">The further case of the plaintiff is that the second\r\ndefendant allotted the suit property to the first defendant\r\nand on that basis the defendants are trying to dispossess\r\nthe plaintiff on the guise of acquisition of the suit property.\r\nThe plaintiff issued notice to the second defendant. On\r\n02.09.1996, defendant Nos.1 and 2 approached defendant </span><span style=\"font-size: 12pt;\">No.3 to demolish the suit schedule property by using the\r\nforce. Hence, plaintiff filed a suit for adverse possession or\r\nin the alternative to declare that the plaintiff is in settled\r\npossession of the suit schedule property and other\r\nconsequential reliefs. Later, plaintiff filed a memo giving\r\nup the prayers in respect of the adverse possession. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The points that arise for consideration in this\r\nappeal is as follows:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(a) Whether the suit filed by the plaintiff against\r\nthe BDA is maintainable?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(b) Whether the Trial Court is justified in decreeing\r\nthe suit of the plaintiff holding that the plaintiff\r\nis in settled possession and enjoyment of the\r\nsuit schedule property by constructing house in\r\nthe portion of the suit schedule property?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. The case of the plaintiff is that one\r\nMr.Munivenkatappa was the owner of the suit schedule\r\nproperty and he purchased the suit schedule property from <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">him by registered sale deed dated 30.5.1964. Thereafter,\r\nhe has constructed the building. From the year 1965, the\r\nplaintiff and his family members are residing in the\r\nproperty.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> The specific case of the second defendant is that the\r\nsuit site is part of Old Survey No.271 and new No.276 of\r\nKempapura Agrahara. The said land has been acquired by\r\nthe BDA by issuing preliminary notification dated\r\n18.5.1961 and final notification was issued on 19.12.1961\r\nand they have taken possession of the suit schedule\r\nproperty and they have formed layout and allotted the\r\nsame to beneficiaries. The site in question has been\r\nallotted to first defendant. It is very clear from Exs.D-1\r\nand D-2 that suit schedule property has been acquired by\r\nthe Government under CITB Act for the formation of\r\nlayout. The plaintiff has purchased the suit schedule\r\nproperty on 30.5.1964 i.e., after final notification dated\r\n19.12.1961 has been issued by the State Government.\r\nThe Apex Court in the case of Brijesh Reddy (supra) has</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">held that once acquisition proceedings is completed, the\r\npurchaser who has purchased the land after acquisition\r\nhas no right to maintain the suit against the BDA.\r\nParagraph Nos.18, 19 and 20 of the said decision are\r\nrelevant and same is extracted hereinbelow:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>“18. It is clear that the Land Acquisition Act is a\r\ncomplete code in itself and is meant to serve public\r\npurpose. By necessary implication, the power of civil\r\nCourt to take cognizance of the case under Section 9\r\nof CPC stands excluded and a Civil Court has no\r\njurisdiction to go into the question of the validity or\r\nlegality of the notification under Section 4,\r\ndeclaration under Section 6 and subsequent\r\nproceedings except by the High Court in a proceeding\r\nunder Article 226 of the Constitution. It is thus clear\r\nthat the civil Court is devoid of jurisdiction to give\r\ndeclaration or even bare injunction being granted on\r\nthe invalidity of the procedure contemplated under\r\nthe Act. The only right available for the aggrieved\r\nperson is to approach the High Court under Article\r\n226 and this Court under Article 136 with selfimposed restrictions on their exercise of\r\nextraordinary power.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>19. No doubt, in the case on hand, the plaintiffs\r\napproached the civil Court with a prayer only for\r\npermanent injunction restraining the defendant Nos.\r\n1 and 2,i.e., BDA, their agents, servants and any one\r\nclaiming through them from interfering with the\r\npeaceful possession and enjoyment of the schedule\r\nproperty. It is true that there is no challenge to the\r\nacquisition proceedings. However, in view of the\r\nassertion of the BDA, in their written statements,\r\nabout the initiation of acquisition proceedings ending\r\nwith the passing of award, handing over possession\r\nand subsequent action etc., the said suit is not\r\nmaintainable. This was rightly concluded by the trial\r\nCourt. For proper compensation, the aggrieved\r\nparties are free to avail the statutory provisions and\r\napproach the court concerned. All these aspects have\r\nbeen clearly noted by the trial Court and ultimately it\r\nrightly dismissed the suit as not maintainable. On the\r\nother hand, the learned Single Judge of the High\r\nCourt though adverted to the principles laid down by\r\nthis Court with reference to acquisition of land under\r\nthe Land Acquisition Act and Section 9 of CPC\r\ncommitted an error in remanding the matter to the\r\ntrial Court on the ground that the plaintiffs were not\r\ngiven opportunity to adduce evidence to show that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">their vendor was in possession which entitles them\r\nfor grant of permanent injunction from evicting them\r\nfrom the scheduled property without due process of\r\nlaw by the defendants. In the light of the specific\r\nassertion coupled with materials in the written\r\nstatement about the acquisition of land long ago and\r\nsubsequent events, suit of any nature including bare\r\ninjunction is not maintainable, hence, we are of the\r\nview that the High Court is not right in remitting the\r\nmatter to the trial Court for fresh disposal.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20. Having regard to the fact that the acquisition\r\nproceedings had been completed way back in 1960-\r\n1970, the plaintiffs who purchased the suit land in\r\n1995 cannot have any right to maintain the suit of\r\nthis nature particularly, against defendant Nos. 1 and\r\n2, namely, the BDA. The High Court clearly erred in\r\nremanding the matter when the suit was not\r\nmaintainable on the face of it. The High Court failed\r\nto take note of the fact that even in the plaint itself,\r\nthe plaintiffs-respondents herein have stated that the\r\nsuit land was acquired and yet they purchased the\r\nsuit land in 1995 and undoubtedly have to face the\r\nconsequence. The possession vests with the BDA way\r\nback in 1969 and 1978 and all the details have been</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">asserted in the written statements, hence the\r\nremittal order cannot be sustained”.\r\n</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> Therefore, from the above decision of the Apex\r\nCourt, it is clear that the suit filed by the plaintiff against\r\nthe BDA is not maintainable.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. In respect of the relief sought by the plaintiff to\r\ndeclare that he is in settled possession and enjoyment of\r\nthe suit schedule property is concerned, the Trial Court\r\nhas given a clear finding that the plaintiff is in possession\r\nfrom 1989 to 1996. However, the Division Bench of this\r\nCourt in the case of John B James (supra) has held that\r\nif the person has to prove that he is in settled possession,\r\nhe should be in possession for more than 12 years without\r\nany kind of interference from the BDA. Paragraph No.80 of\r\nthe said Division Bench decision of this Court is relevant\r\nand same is extracted hereinbleow:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>Re: Persons who have put up structures and have\r\nremained in settled possession for more than 12\r\nyears without any kind of interference from BDA:\r\n80.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>If anyone, who has trespassed into BDA land or\r\nin unauthorized possession of BDA land, has put up a\r\nstructure and completes and accomplishes the act of\r\npossession and continues in such settled possession\r\nasserting possession and ownership in himself,\r\nopenly, peacefully and uninterruptedly to the\r\nknowledge of BDA, for more than 12 years, then it is\r\npossible for him to contend that he has perfected his\r\ntitle to such property by adverse possession and\r\nconsequently the title of BDA stood extinguished. It\r\nis needless to say that such adverse possession for\r\n12 years should be subsequent to the date of vesting\r\nof land in BDA. The person claiming such title by\r\nadverse possession cannot call in aid any possession\r\non his part or his predecessor, for any period prior to\r\ndate of vesting of land in BDA, to establish adverse\r\npossession, or possession during the pendency of any\r\nlitigation regarding the property, cannot be\r\nconsidered as possession adverse to BDA”. </i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In the case on hand, there is a clear finding that the\r\nplaintiff was in possession from 1989 to 1996 and he has </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not been in possession for more than 12 years. Therefore,\r\nunder the circumstances and in view of the Division Bench\r\ndecision of this Court in the case of John B James\r\n(supra), the relief granted by the Trial Court declaring that\r\nthe plaintiff is in settled possession and enjoyment of the\r\nsuit schedule property is erroneous. Accordingly, the said\r\nfinding of the Trial Court is set aside.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 12. In respect of possession is concerned, the\r\nspecific case of the plaintiff is that from the date of\r\npurchase of the property i.e., 30.5.1964, the plaintiff is in\r\npossession of the property till today. The second\r\ndefendant has contended that immediately after passing\r\nthe award, the possession has been taken by the BDA. The\r\nfinding of the trial court is that the plaintiff is possession\r\nfrom 1989. Even in the earlier proceedings before this\r\nCourt in W.P.No.28535/1996, it is admitted that the\r\nplaintiff is in possession of the suit schedule property.\r\nEven in the written statement filed by the BDA, it is\r\nadmitted that as on the date of the suit, the plaintiff is in </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">possession of the property as unauthorized occupant.\r\nTherefore, under the circumstances, the defendants can\r\nevict the plaintiff only by following due process of law.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 13. Accordingly, the appeal is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd04e216fcf0f50e872df5c5d2b19d98d.jpeg', '3929b43a7eed7e7e6e917f6e73fdd8f3.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-26', 1, '', '', '2023-07-25 15:56:05', '2023-07-26 15:51:05');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3280, 'u38Ks5QZhDpoNfqQEPnd2ST3J', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'ATM management services provided to banks cannot be saddled with Value Added Tax when Service Tax is already levied on them. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>FIS Payment Solutions And Services India Private Limited Vs The State of Karanataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 9550 of 2019 decided on 17 March 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.R. Krishna Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The common issue for consideration in the writ petitions\r\nis whether the respondents have jurisdiction to levy Value Added\r\nTax (“VAT”) under the provisions of the Karnataka Value Added\r\nTax Act, 2005 (“KVAT Act”) KVAT Act on ATM Management\r\nServices provided by the petitioner to various Banks across the\r\nState of Karnataka on which the petitioner has already paid Service\r\nTax as per the Finance Act 1994.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. Petitioner is engaged in the provision of ATM\r\nManagement Services for various banks at pan India level and\r\nundertake end to end services for the banks. Petitioner has paid </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Service Tax on the entire value of the contractual consideration\r\nreceived from banks on account of rendering of the aforesaid\r\nservices and has also been regularly filing returns with the Service\r\nTax Authorities. It is contended that petitioner render these ATM\r\nManagement services to various banks across the Country\r\nwhereby, end to end management of the ATM Machines is\r\nprovided by the petitioner. The petitioner has duly discharged\r\nService Tax on the entire revenue earned from such transaction. It\r\nis the grievance of the petitioner that the respondents have sought\r\nto levy VAT on the very same consideration by passing the\r\nImpugned Assessment Orders and Demand Notices by ignoring\r\nthe gamut of services provided by the petitioner and treating the\r\ntransaction as a “financial lease” and therefore, holding the same to\r\nbe transfer of right to use the ATM Machines and “deemed sale of\r\ngoods” which is not only without jurisdiction or authority of law but\r\nalso illegal, arbitrary and contrary to the material on record and\r\ndeserve to be quashed. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. In my considered opinion, the impugned orders, levies\r\nand demands are illegal, arbitrary and without jurisdiction or\r\nauthority of law and the same deserve to be quashed for the\r\nfollowing reasons:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) The material on record discloses that the petitioner is a\r\nservice provider of ATM Management Services for various Banks\r\nat pan India level and undertakes end-to-end services for the banks\r\nin this regard and has been discharging Service Tax on the\r\nconsideration received from banks on account of rendering the\r\naforesaid services. Under the Agreements entered into with the\r\nBanks, the petitioner provides end-to-end services to provide ATM\r\nrelated services to Banks. The petitioner is responsible for the\r\nsuccessful operation of the ATM transactions by the Bank’s\r\ncustomers and therefore, is responsible for deploying its own ATM\r\nmachines, their installation, operation and maintenance, insurance\r\netc. The dominant intention of the transaction is undoubtedly to\r\nprovide services and the ATM machines and other equipment\r\nnever stood transferred to the Banks. The risk and reward with\r\nrespect to the ATM and equipment is with the petitioner. The ATMs\r\nand equipment and even the cash handled by the petitioner in the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">course of its activities are insured by the petitioner. Rental\r\nagreements with landlords are also entered by the petitioner.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iii) As is clear from the agreements, the arrangement with\r\nthe banks is a pure service agreement. At no stage does the\r\npetitioner delivers any goods including ATM and equipment to the\r\nbanks. There is no transfer/delivery of possession of the ATMs and\r\nequipment to the banks. In fact, the banks have outsourced the\r\nentire ATM management activity to the petitioner and the petitioner\r\nonly deploys the ATMs and equipment to effectively render the\r\nservices to the banks. As per the terms of the agreements entered\r\ninto with the Banks, end-to-end services with respect to ATM\r\nManagement is provided, for which Fixed Revenue as well as\r\nTransaction Base Revenue is earned.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(iv) The subject transactions of ATM Management Services\r\nare not liable to VAT under the KVAT Act and the State of\r\nKarnataka does not have the legislative competence to levy VAT\r\non such a transaction. A pure service transaction not entailing any\r\ntransfer of property/ right to use of goods is consequently liable\r\nonly to Service Tax and not to VAT and such exercise of power is\r\nbeyond legislative powers of the State of Karnataka under entry 54\r\nin List II of the Constitution of India. While the levy of tax on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">services used to fall under the purview of Union in terms of Article\r\n246 read with Entry 97 of List I, levy of VAT came under the\r\npurview of State as per Article 246 read with the then existing Entry\r\n54 of List II. Consequently, once a transaction is undisputedly held\r\nto be service, State does not have the legislative competence of\r\njurisdiction to impose VAT on the same transaction. The jurisdiction\r\nfor the State authorities would arise on there being a sale of goods.\r\nThe extended definition of sale found in Article 366(29a) of the\r\nConstitution of India following the 46th Amendment and what is\r\npopularly called deemed sale can come into play, in the instant\r\ncase, when the revenue authorities can prove that there is a\r\n“transfer of right to use the goods” and that possession and control\r\nover the goods is necessary to attract the taxable event.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(v) In the case of 20th Century Finance Corpn. Ltd. v\r\nState of Maharashtra - AIR 2000 SC 2436, the Apex Court held\r\nas under:-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“35. As a result of the aforesaid discussion our\r\nconclusions are these:</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>(a) The States in exercise of power under entry 54 of List II\r\nread with article 366(29A)(d) are not competent to levy\r\nsales tax on the transfer of right to use goods, which is\r\na deemed sale, if such sale takes place outside the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">State or is a sale in the course of inter-State trade or\r\ncommerce or is a sale in the course of import or export.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(b) The appropriate Legislature by creating legal fiction can\r\nfix situs of sale. In the absence of any such legal fiction\r\nthe situs of sale in case of the transaction of transfer or\r\nright to use any goods would be the place where the\r\nproperty in goods passes, i.e., where the written\r\nagreement transferring the right to use is executed.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(c) Where the goods are available for the transfer of right\r\nto use the taxable event on the transfer of right to use\r\ngoods is on the transfer which results in right to use\r\nand the situs of sale would be the place where the\r\ncontract is executed and not where the goods are\r\nlocated for use.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>\r\n(d) In cases where goods are not in existence or where\r\nthere is an oral or implied transfer of the right to use\r\ngoods, such transactions may be effected by the\r\ndelivery of the goods. In such cases the taxable event\r\nwould be on the delivery of goods.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\nThe transaction of transfer of right to use goods cannot\r\nbe termed as contract of bailment as it is a deemed\r\nsale within the meaning of legal fiction engrafted in\r\nclause (29A)(d) of article 366 of the Constitution\r\nwherein the location or delivery of goods to put to use\r\nis immaterial.”</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(viii) It is also brought to my notice that in petitioners’ own\r\ncase before the Customs, Excise and Service Tax Appellate\r\nTribunal in India Switch Co. Pvt. Ltd. Vs Commissioner of\r\nService Tax, Chennai - 2015 (39) STR 288 (Tri – Chennai), it was\r\nheld that on the aforesaid transaction, Service Tax is payable by\r\nthe petitioner under the category “ATM operations, maintenance or\r\nmanagement services” as under:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“10. From the above, it is evident that in the case\r\nof finance lease the lesser transfer all the risks and\r\nrewards incidental to the ownership to the lessee. In the\r\npresent case, the ATMs are owned by the appellants and\r\nno rights or risk and rewards are transferred to the\r\nBanks. The appellant collects charges for proving ATM\r\nServices as facility charges per ATM per day basis.\r\nTherefore, by respectfully following the Apex\r\nCourt decision, we hold that the appellants providing\r\nATMs and other ATM related activities do not fall under\r\nBOF as financial leasing including equipment leasing and\r\ntransfer of information or data processing. In view of the\r\ndecisions of the Hon’ble Apex Court and the Tribunals\r\ncited above, the impugned orders of the adjudicating\r\nauthority is set aside and allow all the three appeals filed\r\nby the appellants with consequential relief if any.”</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ix) On a similar allegation as raised by the Karnataka VAT\r\nAuthorities in the present case, the Madras High Court in\r\npetitioners’ own case in India Switch Co. Pvt. Ltd. vs Deputy\r\nCommercial Tax Officer - 2021 (3) TMI 192 has held that the\r\nrelevant activity of the petitioners amounts to rendering of service\r\nand is not one of deemed sale. The Madras High Court held as\r\nunder:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“23. In the facts and circumstances of the present case,\r\nthe above test enunciated for “transfer of right to use” is\r\nnot satisfied. Therefore, the petitioner cannot be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">subjected to tax under the provisions of the Tamil Nadu\r\nGeneral Sales Tax Act, 1959 and/or under the provisions\r\nof the Central Sales Tax Act, 1956. In the transactions\r\nentered between the petitioner and the banks, the\r\neffective control over to ATM\'s continued to vest with the\r\npetitioner. Since the issue stands fully covered in favour\r\nof the petitioner in the above cited decision of the Hon\'ble\r\nSupreme Court in Bharat Sanchar Nigam Ltd. and\r\nanother Vs. Union of India and Other (2006) 3 SCC 1 ;\r\n2006 (2) STR 2, these writ petitions deserve to be\r\nallowed by quashing the impugned orders.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>24. As a matter of fact, the subject transaction may have\r\nbeen liable to tax under Section 65(105)(zzzzj)of the\r\nFinance Act, 1994 with effect from 2008 after service tax\r\nwas levied on “Supply of Tangible Goods” as about test\r\nfor “transfer of right to use” is conspicuously absent.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>25. Therefore, the impugned orders seeking to tax the\r\npetitioner under the provision of the Tamil Nadu General\r\nSales Tax Act, 1959 and under the provisions of the\r\nCentral Sales Tax Act, 1956 are quashed with\r\nconsequential relief to the petitioner.”</i></span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>xiii) The Division Bench of this Court in the case of Sasken\r\nCommunication Technologies Ltd. vs. Joint Commissioner of\r\nCommercial Taxes (Appeals) – 3 Bangalore - 2012 (55) VST 89\r\n(KAR) held as under:-</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“30. Wherever legislative powers are distributed\r\nbetween the Union and the States, situations may arise\r\nwhere the two legislative fields might apparently\r\noverlap. It is the duty of the Courts, however difficult it\r\nmay be, to ascertain to what degree and to what extent,\r\nthe authority can deal with matters falling within these\r\nclasses of subjects exists in each Legislature and to\r\ndefine, in the particular case, before them, the limits of\r\nthe respective powers. It could not have been the\r\nintention that a conflict should exist; and, in order to\r\nprevent such a result the two provisions must be read\r\ntogether, and the language of one interpreted, and\r\nwhere necessary modified by that of the other. From\r\ntime to time that legislation, though purporting to deal\r\nwith a subject in one list, touches also on a subject in\r\nanother list, and the different provisions of the\r\nenactment may be so closely intertwined that blind\r\nobservance to a strictly verbal interpretation would result\r\nin a large number of statutes being declared invalid\r\nbecause the Legislature enacting them may appear to\r\nhave legislated in a forbidden sphere. In such\r\ncircumstances the true nature and character is to be\r\nascertained for the purpose of determining whether it is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">legislation with respect to matters in this list or in that\r\nlist. It is popularly known as \'pith and substance\'. The\r\nlaw \'with respect to, a subject might incidentally \'affect\'\r\nanother subject in some way; but that is not the same\r\nthing as the law being on the latter subject. There might\r\nbe overlapping; but the overlapping must be in law. The\r\nsame transaction may involve two or more taxable\r\nevents in its different aspects. But the fact that there is\r\nan overlapping does not detract from the distinctiveness\r\nof the aspects. The true nature and character of the\r\nlegislation must be determined with reference to a\r\nquestion of the power of the Legislature. The\r\nconsequences and effect of the legislation are not the\r\nsame thing as the legislative subject-matter. What\r\nmatters is the nature and character of the legislation and\r\nnot its ultimate economic results that matters.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">31. Therefore, if computer programming and providing\r\nof computer software involves two aspects, one falling\r\nwithin the power of the Parliament and the other falling\r\nwithin the power of the State Legislature to enact the\r\nlaw, the law so enacted cannot be found fault with.\r\nWhen the programming and providing of computer\r\nsoftware is treated as works contract, as the works\r\ncontract necessarily involves an agreement to render\r\nservice and an agreement for sale of goods, service\r\naspect could be taxed by the Parliament and the sale of\r\ngoods aspect could be taxed by the State Legislature.\r\nBut, this distinctiveness of two transactions is to be\r\nascertainable from the terms of the composite contract.\r\nIf such an intention is not discemable from the terms of</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the contract then we have to find out what is the pith\r\nand substance of the contract or in other words what is\r\nthe true nature and character of the contract. If on an\r\nexamination of the contract as a whole, it is not possible\r\nto discern that the contract involves sale of goods but is\r\nessentially an agreement to render service, neither the\r\nconcept of a works contract nor the concept of aspect\r\ntheory is attracted. It is by virtue of Entry 54 in List II of\r\nthe VII Schedule the Karnataka Value Added Tax is\r\nenacted by the State Legislature, as the State\r\nLegislature is competent to enact laws in respect of sale\r\nof goods. By introducing a schedule to the said\r\nenactment and describing under a works contract\r\n\"programming and providing a computer software is\r\nspecified\'\', unless the said works contract involves an\r\nelement of sale of goods, the State Legislature has no\r\npower to levy tax under the said Act. Similarly, the\r\nParliament also has no power to levy service tax on sale\r\nof goods if by including in the Finance Act, development\r\nof information technology software, study, analysis,\r\ndesign and programming, information technology\r\nsoftware and various other aspects touching software if\r\nit involves sale of goods. It has to be necessarily\r\nconfined to the service aspect. In both the enactments\r\nthey specify the types of activities which are liable for\r\ntax. A duty is cast on the Court to interpret those\r\nprovisions in such a harmonious way so as to uphold\r\nthe right of both the legislations to levy tax which fall\r\nwithin their respective sphere.”</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(xv) As stated supra, the undisputed material on record, in\r\nparticular the agreements also make it unmistakeably clear that it is\r\nnowhere evident that the ATMs and equipment at any stage are\r\ntransferred/delivered to the banks and neither does the possession\r\nget transferred to the bank. The petitioners all through out the\r\ntenure of the agreement continues to provide ATM Management <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">services to the banks deploying/using the ATMs and equipment.\r\nDelivery/transfer is sine qua non to attract levy of VAT. However,\r\nno delivery but only deployment takes places. The petitioners not\r\nonly has the possession but is also in effective control of the ATMs\r\nand equipment. If it was neither in possession or in effective control\r\nover the ATMs and equipment, the petitioners would have been\r\nunable to provide the aforesaid services.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(xvi) The impugned orders have erroneously held the\r\npetitioners transaction to be one of deemed sale. A deemed sale or\r\ndelivery on hire purchase would arise only when goods are either\r\ndelivered physically or on the grant of effective control and\r\npossession therein to the recipient. In the present case, the\r\ntransaction is a pure service transaction not entailing any transfer\r\nof property of goods or effective control of the goods to the\r\nrecipient. The various terms of the Agreements with the Banks\r\ndiscloses that the only intent of the contract is only provision of\r\nATM management service for which the petitioners deploys ATMs\r\nand other assets at various sites across India. The petitioners uses\r\nthe ATMs and other assets merely as a means for providing ATM\r\nmanagement services to banks.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(i) Both petitions are allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'aacb3d80ae9fc6a61c692112b816b2f4.JPG', 'cad2d8f3f0a33aca300b748ac21eb7e6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-02', 1, '', '', '2023-08-01 12:41:11', '2023-08-02 03:28:25'),
(3247, '1HpcSIBdYc8XvcADSpIadJavO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\"Disputes between the governmental bodies cannot be dragged before the constitutional courts\". Karnataka High Court sets up committee to resolve the dispute between APMC and BMRCL regarding compensation.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Special Agricultural Produce Market Committee for Fruits and Vegetables Vs The Special Land Acquisition Officer and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 20905 of 2022 decided on 14 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S Sunil Dutt Yadav.  </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Petitioner has filed the present petition seeking for\r\nissuance of writ in the nature of certiorari to quash the\r\nendorsement at Annexures-Q and T and has sought for a\r\ndirection to respondents 1 to 5 to consider the\r\nrepresentation dated 25.08.2021 and make a reference in\r\nterms of Section 29(3) of the Karnataka Industrial Areas\r\nDevelopment Act, 1966 (for short \'the Act\') and for\r\ndisposal of the reference on its merits.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The facts that are relevant for the purpose of\r\ndisposal of writ petition are that an extent of 2147.03 sq.\r\nmt. and subsequently, further extent of 140 sq. mt.\r\nbelonging to the petitioner - Authority came to be acquired\r\nfor the benefit of Bangalore Metro Rail Corporation Limited </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(hereinafter referred to as \"BMRCL\"). It is submitted by\r\nthe petitioner that the only dispute at present is as\r\nregards the quantum of compensation.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">3. It is noticed from the records that the\r\nGovernment Order was passed on 15.11.2016 whereby, it\r\nis provided that the land belonging to Government and\r\nother autonomous authorities if acquired, the rate that\r\nwould be payable would be in terms of the Guideline Value\r\nunder the Stamp and Registration Act as in force. It is\r\nsubmitted that after payment, the land as required for the\r\nBangalore Metro Rail Project could be transferred. In terms\r\nof Government order above referred, it is stated that a\r\nmeeting was held and proceedings were drawn on\r\n09.11.2019 wherein for the aforementioned extent of land\r\nof 2147 sq. mt., price that was fixed was\r\nRs.15,35,22,645/-. Petitioner however submits that such\r\nproceedings are not binding as there was no\r\nrepresentative of the petitioner in such meeting.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. It is to be noticed that the petitioner is an entity\r\nwhich is State for the purpose of Article 12 of the\r\nConstitution of India. The dispute is between the petitioner\r\nand BMRCL. The BMRCL also for all practical purposes can\r\nbe construed to be an Entity for the purpose of Article 12\r\nof the Constitution of India in light of the control by the\r\nUnion and the State Government. The Special Land\r\nAcquisition Officer, KIADB and the Karnataka State\r\nIndustries and Commerce Department are respondents\r\nherein. Wherever disputes have arisen between the State\r\nand its entities, the Apex Court in the case of Chief\r\nConservator of Forests, Government of A.P. vs.\r\nCollector and others1\r\n (Chief Conservator of Forests)\r\nhas observed as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\"14. Under the scheme of the Constitution, Article\r\n131 confers original jurisdiction on the Supreme\r\nCourt in regard to a dispute between two States of\r\nthe Union of India or between one or more States\r\nand the Union of India. It was not contemplated by\r\nthe framers of the Constitution or CPC that two\r\ndepartments of a State or the Union of India will\r\nfight a litigation in a court of law. It is neither\r\nappropriate nor permissible for two departments of\r\na State or the Union of India to fight litigation in a\r\ncourt of law. Indeed, such a course cannot but be\r\ndetrimental to the public interest as it also entails\r\navoidable wastage of public money and time.\r\nVarious departments of the Government are its\r\nlimbs and, therefore, they must act in coordination\r\nand not in confrontation. Filing of a writ petition by\r\none department against the other by invoking the\r\nextraordinary jurisdiction of the High Court is not\r\nonly against the propriety and polity as it smacks of\r\nindiscipline but is also contrary to the basic concept\r\nof law which requires that for suing or being sued,\r\nthere must be either a natural or a juristic person.\r\nThe States/Union of India must evolve a\r\nmechanism to set at rest all interdepartmental\r\ncontroversies at the level of the Government and\r\nsuch matters should not be carried to a court of law\r\nfor resolution of the controversy. In the case of\r\ndisputes between public sector undertakings and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Union of India, this Court in Oil and Natural Gas\r\nCommission v. CCE [1992 Supp (2) SCC 432]\r\ncalled upon the Cabinet Secretary to handle such\r\nmatters. In Oil and Natural Gas\r\nCommission v. CCE [1995 Supp (4) SCC 541] this\r\nCourt directed the Central Government to set up a\r\ncommittee consisting of representatives from the\r\nMinistry of Industry, the Bureau of Public\r\nEnterprises and the Ministry of Law, to monitor\r\ndisputes between Ministry and Ministry of the\r\nGovernment of India, Ministry and public sector\r\nundertakings of the Government of India and public\r\nsector undertakings in between themselves, to\r\nensure that no litigation comes to court or to a\r\ntribunal without the matter having been first\r\nexamined by the Committee and its clearance for\r\nlitigation. The Government may include a\r\nrepresentative of the Ministry concerned in a\r\nspecific case and one from the Ministry of Finance\r\nin the Committee. Senior officers only should be\r\nnominated so that the Committee would function\r\nwith status, control and discipline.\"</span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. It must also be noted that the State of\r\nKarnataka has adopted and formulated the \"Karnataka\r\nState Dispute Resolution Policy - 20212\r\n\" (2021 Policy) in\r\nsupersession of the \"Karnataka State Litigation 2011\"\r\n(2011 Policy), to combat the rise in pendency of cases\r\nwhere the State Government/ Instrumentalities is a party\r\nin the litigation.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The 2021 Policy at Chapter I point No.6 highlights\r\nthe \"Impact of the Karnataka State Litigation Policy 2011\"\r\nwhich is extracted herein below:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\"6.1 The Karnataka State Litigation Policy was\r\nfirst framed in 2011 and has since been in\r\nforce. The 2011 Policy aimed to transform the\r\ngovernment into an \"efficient\" and\r\n\"responsible\" litigant. It set out that the\r\ngovernment would minimize litigation and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">eschew the \"let-the-court-decide\" approach. It\r\ndesired to identify bottlenecks, remove\r\nunnecessary government cases and achieve\r\nprioritization in litigation.\"\r\n</span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>The policy has envisaged the establishment of a\r\ndispute resolution board in each department. Chapter III\r\npoint 3 recommends the constitution of an empowered\r\ncommittee headed by the Chief Secretary to monitor the\r\nimplementation of the policy and evaluate the\r\nperformance of stakeholders internally.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> Chapter VII mandates the use of Alternative Dispute\r\nResolution (ADR) by the Government in dispute prevention\r\nand dispute resolution. It directs the establishment of\r\nDispute Resolution Boards in each department to authorize\r\nrepresentation of Law Officers and approve settlement\r\nterms. The Chapter also provides for the formation of a\r\nWorking Group led by the Advocate General, to assist each\r\nState Department in formulating an ADR strategy to\r\nidentify suitable disputes for ADR and participate in it </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">effectively.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. It is also pertinent to note that the Apex Court\r\nin Gurgaon Gramin Bank v. Khazani has disapproved\r\nthe practice by Government instrumentalities coming\r\nbefore the courts to litigate on trivial and frivolous matters\r\nwithout there being any serious question of law. The\r\nrelevant observations are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\"2. The number of litigations in our country is\r\non the rise, for small and trivial matters, people\r\nand sometimes the Central and the State\r\nGovernments and their instrumentalities like\r\nbanks, nationalised or private, come to courts\r\nmay be due to ego clash or to save the officers\'\r\nskin. The judicial system is overburdened which\r\nnaturally causes delay in adjudication of\r\ndisputes. Mediation Centres opened in various\r\nparts of our country have, to some extent,\r\neased the burden of the courts but we are still\r\nin the tunnel and the light is far away. On more\r\nthan one occasion, this Court has reminded the\r\nCentral Government, the State Governments\r\nand other instrumentalities as well as to the\r\nvarious banking institutions to take earnest\r\nefforts to resolve the disputes at their end. At\r\ntimes, some give and take attitude should be\r\nadopted or both will sink. Unless serious\r\nquestions of law of general importance arise for\r\nconsideration or a question which affects a\r\nlarge number of persons or the stakes are very\r\nhigh, the courts\' jurisdiction cannot be invoked\r\nfor resolution of small and trivial matters\"</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">10. The said Committee would be headed by the\r\nChief Secretary, Government of Karnataka and the other\r\nentities referred to above would be the participants. The\r\nChief Secretary is at liberty to enlarge the constitution of\r\nthe Committee if found necessary. The said Committee to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">be constituted to endeavour to settle the dispute amicably\r\ntaking note of the constituent entities all being State\r\nAuthorities. Needless to state that if the Chief Secretary,\r\nGovernment of Karnataka, is of the opinion that the\r\nmatter cannot be resolved due to any legal impediment\r\nand is a matter to be decided by the Court, the matter\r\nmay be referred back to the Court.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 11. All contentions of the parties are kept open. It\r\nis clarified that all disputes and contentions of the\r\npetitioner and respondents which is the subject matter of\r\npresent proceedings, stand referred to the Committee\r\nreferred to above. The Chief Secretary, Government of\r\nKarnataka to endeavour to resolve the dispute within a\r\nperiod of 3 months from the date of receipt of copy of this\r\norder.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n 12. The above approach is not only the mandate of\r\nthe law, but would go a long way towards avoiding\r\ndisputes between State and its entities contributing to\r\nincreased work load. Further, differences between State</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and its entities ought to be resolved in a separate platform\r\nand cannot land up for adjudication before the Courts\r\nwhich even otherwise are over burdened. The State and its\r\nentities are to contribute to lowering matters that end up\r\nbefore Courts for adjudication in a meaningful manner.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 13. Reserving liberty as mentioned above, the\r\npresent petition is disposed off.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e367135ebc1d6c1e1b238accba4b25fc.JPG', '706acf38583fc2c501423ec393e97f7a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-27', 1, '', '', '2023-07-26 12:39:56', '2023-07-27 08:09:44');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3248, 'ZAZa5XyfSOSg7CMzfplt5h7Xy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Negotiable Instruments Act. When the cheque issued by partnership firm is dishonoured, criminal proceeding under Section 138 without impleading the firm is not maintainable. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>P.I. Moideen Kutty Vs Abdul Rasheed and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL. REV. PET. 39 of 2016 decided on 10 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A. Badharudeen.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This revision petition has been filed under Sections\r\n397 and 401 of Code of Criminal Procedure (hereinafter\r\nreferred as Cr.P.C. for convenience). The revision petitioner\r\nis the sole accused in C.C.No.128/2008 on the files of the\r\nJudicial First Class Magistrate Court, Malappuram and the\r\nappellant in Crl.A.No.119/2011 on the files of the Special\r\nCourt for SC/ST (POA) Act Cases, Manjeri. The respondents\r\nherein are the original complainant as well as State of\r\nKerala.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. In this matter, prosecution case runs on the\r\npremise that a cheque for Rs.5,00,000/- issued by the\r\naccused in favour of the complainant got dishonored for\r\nwant of funds, when the same was presented for collection.  </span><span style=\"font-size: 12pt;\">Soon after the dishonor, legal notice was issued demanding\r\nthe said amount. Since the amount was not paid, the\r\ncomplainant launched prosecution against the accused\r\nalleging commission of offence punishable under Section\r\n138 of the Negotiable Instruments Act (hereinafter referred\r\nas N.I.Act for convenience).\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>5. The trial court secured the presence of accused\r\nand complainant for trial and finally tried the matter. During\r\ntrial, PWs 1 and 2 were examined and Exts.P1 to P7 marked\r\non the side of the complainant.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>\r\n6. Although opportunity was given to the accused\r\nto adduce defence evidence after questioning the accused\r\nunder Section 313(1)(b) of the Cr.P.C., no witnesses\r\nexamined and Exhibits marked on the side of the defence.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">\r\n7. On appreciation of evidence, the learned\r\nMagistrate found that the accused committed the offence\r\npunishable under Section 138 of the N.I. Act and\r\naccordingly, the accused was sentenced to undergo simple\r\nimprisonment for a period of four months and to pay fine of\r\nRs.5,00,000/-. The amount of fine was ordered to be paid as\r\ncompensation to the complainant. In default of payment of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">fine, simple imprisonment for two months also was imposed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. While impeaching the veracity of the concurrent\r\nverdicts, a pertinent legal question being argued by the\r\nlearned counsel for the accused/revision petitioner. It is\r\nsubmitted that Ext.P1 cheque in this matter is a cheque in\r\nthe name of “Thennala Enterprise”, a partnership firm and\r\nthe cheque was signed by the Managing partner. Therefore,\r\nin order to succeed a prosecution under Section 138 of the\r\nN.I. Act, the firm must be arrayed as a party and otherwise\r\nthe entire prosecution is vitiated. In this connection, the\r\nlearned counsel for the accused/revision petitioner pointed\r\nout Section 141 of the N.I. Act and relevant citations on this\r\npoint. It is submitted that this Court has considered this\r\nlegal question in a decision reported in Babu v. State of\r\nKerala [2017 (4) KLT SN 33 (C.No.34)] and held as\r\nunder:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n “If the person committing the offence is a firm,\r\nthe firm as well as the categories of persons in charge\r\nand responsible for the conduct of the business of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">firm shall be deemed to be guilty of the offence under\r\nS.138 of the Act. It is only because of the deeming\r\nprovision that the vicarious liability is fixed on the\r\ncompany as well as the persons in charge and\r\nresponsible for the conduct of the company. In view of\r\nthe legal fiction brought in under S.141 of the Act, it\r\nhas to be held that if a firm commits the offence under\r\nS.138 of the Act, the firm as well as the persons\r\nreferred to in S.141 shall be deemed to be guilty of\r\nthe offence. Therefore, for maintaining the\r\nprosecution under S.141 of the Act, the arraigning of\r\nthe firm as an accused is imperative.”</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. The decision of the Apex Court reported in\r\nAneeta Hada and Others v. M/s. Godfather Travels and\r\nTours Pvt.Ltd and Another [2012 KHC 4244 : 2012 (2)\r\nKLD 16 : 2012 (2) KHC SN 36 : 2012 (4) SCALE 644 : 2012\r\n(2) KLJ 456 : 2012 (2) KLT 736 : 2012 (5) SCC 661 : AIR\r\n2012 SC 2795 : 2012 CriLJ 2525] also has been placed to\r\nsubstantiate the said contention. In the said decision, the\r\nApex Court held as under:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\"We have referred to the aforesaid authorities to\r\nhighlight that the company can have criminal liability\r\nand further, if a group of persons that guide the\r\nbusiness of the companies have the criminal intent,\r\nthat would be imputed to the body corporate. In this\r\nbackdrop, S.141 of the Act has to be understood. The\r\nsaid provision clearly stipulates that when a person\r\nwhich is a company commits an offence, then certain\r\ncategories of persons in charge as well as the company\r\nwould be deemed to be liable for the offences under\r\nS.138. Thus, the statutory intendment is absolutely <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">plain. It is to be borne in mind that S.141 of the Act is\r\nconcerned with the offences by the company. It makes\r\nthe other persons vicariously liable for commission of\r\nan offence on the part of the company. As has been\r\nstated by us earlier, the vicarious liability gets\r\nattracted when the condition precedent laid down in\r\nS.141 of the Act stands satisfied. There can be no\r\ndispute that as the liability is penal in nature, a strict\r\nconstruction of the provision would be necessitous\r\nand, in a way, the warrant. In view of our aforesaid\r\nanalysis, we arrive at the irresistible conclusion that\r\nfor maintaining the prosecution under S.141 of the\r\nAct, arraigning of a company as an accused is\r\nimperative. The other categories of offenders can only\r\nbe brought in the dragnet on the touchstone of\r\nvicarious liability as the same has been stipulated in\r\nthe provision itself. We say so on the basis of the ratio\r\nlaid down in C. V. Parekh (supra) which is a threeJudge Bench decision. Thus, the view expressed in\r\nSheoratan Agarwal (supra) does not correctly lay down\r\nthe law and, accordingly, is hereby overruled. The\r\ndecision in Anil Hada (supra) is overruled with the\r\nqualifier as stated in paragraph 37. The decision in\r\nModi Distilleries (supra) has to be treated to be\r\nrestricted to its own facts as has been explained by us\r\nhereinabove.”</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. In order to appraise the contention, I have\r\nperused the copy of Ext.P1 cheque. The same would go to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">show that the cheque was issued for and on behalf of\r\n“Thennala Enterprise” by the Managing Partner. On perusal\r\nof the copy of the complaint, it could be gathered that one\r\nP.I.Moitheenkutty alone is arrayed as the accused and the\r\nfirm is not arrayed as an accused.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. The explanation to Section 141 of the N.I.Act\r\nprovides that for the purpose of this Section, \"company\"\r\nmeans any body corporate and includes a firm or other\r\nassociation of Individuals; and \"director\", in relation to a\r\nfirm, means a partner in the firm. Therefore, “Thennala\r\nEnterprise” a partnership firm come within the definition of\r\nCompany as defined under Section 141 of the N.I. Act, shall\r\nbe deemed to be guilty of the offence and shall be liable to\r\nbe proceeded and punished accordingly. In the decision <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reported in Pawan Kumar Goel v. State of Uttar Pradesh\r\n[2022 (7) KHC 377 : 2022 KHC OnLine 7209 : 2022 SCC\r\nOnLine SC 1598 : AIROnLine 2022 SC 904 : 2022 (6) KLT SN\r\n39 : 2022 (6) KLT OnLine 1016] the Apex Court considered\r\nthe impact of Sections 138 and 141 of the N.I. Act by\r\nconsidering four questions and answering the same.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">14. The first question was; whether Company can be\r\nimpleaded as an accused in a prosecution under Section 138\r\nof the N.I. Act subsequently? The second question was; if\r\ncomplainant fails to make specific averments against\r\ncompany in the complaint alleging commission of an offence\r\nunder Section 138 of the N.I. Act, can the same be rectified\r\nby taking recourse to general principles of criminal\r\njurisprudence? Thirdly, whether it is necessary to array the\r\ncompany as an accused in a prosecution under Section 138\r\nof the N.I. Act? And the fourth question was; whether the\r\ndirector of a company can be proceeded under Section 138\r\nof the N.I. Act, without there being any averments in the\r\ncomplaint that the director arrayed as an accused who was\r\nin charge of and responsible for the conduct and business of\r\nthe company during the relevant time?</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. While answering the above questions, the Apex\r\nCourt held that the company cannot be impleaded as an\r\nadditional accused subsequent to the filing of the complaint,\r\nonce limitation prescribed for taking cognizance of the\r\noffence under Section 142 has expired. Similarly, it has been\r\nheld that if the complainant fails to make specific averments\r\nagainst the company in the complaint alleging commission of\r\noffence punishable under Section 138 of the N.I. Act, the\r\nsame cannot be rectified by taking recourse to general\r\nprinciples of criminal jurisprudence. It has been held further\r\nthat unless the company or firm has committed an offence\r\npunishable under Section 138 of the N.I. Act as a principal\r\naccused, persons mentioned in sub-section (1) and (2) of\r\nSection 141 of the N.I. Act would not be liable to be\r\nconvicted on the basis of the principles of vicarious liability.\r\nFurther, it has been held that in a prosecution alleging\r\ncommission of offence punishable under Section 138 of the\r\nN.I. Act, the director of a company would not be liable to be\r\nproceeded without there being any averments in the\r\ncomplaint that the director arrayed as an accused was in\r\ncharge of and responsible for the conduct and business of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the company.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>16. On evaluation of the legal position, the present\r\ncomplaint filed by the complainant against the\r\naccused/revision petitioner without arraying the firm as an\r\naccused would not sustain. Since the cheque was one\r\nbelonged to the firm, the complainant should have arrayed\r\nthe firm as an accused and the directors, if any, by disclosing\r\ntheir complicity in detail so as to warrant conviction and\r\nsentence provided under Section 138 of the N.I. Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n17. In view of the matter, the contentions raised by\r\nthe learned counsel for the accused/revision petitioner\r\nappears to be convincing. Therefore, without adverting to\r\nthe other contentions, I am inclined to hold that the entire\r\nprosecution is vitiated. Accordingly, the concurrent finding of\r\nconviction as well as the sentence imposed by the trial court\r\nas well as the Appellate Court are found to be unsustainable\r\nand the same are liable to be set aside.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the result, the revision succeeds and the same\r\nstands allowed. Consequently, the concurrent finding of\r\nconviction and sentence imposed by the trial court as well as\r\nthe Appellate Court stand set aside. The accused/revision <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner stands acquitted and he is set at liberty forthwith.\r\nHis bail bond, if any, shall stand canceled.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '51327a0d68217adda2235a4330e15efc.jpeg', '6360da93fabcd9d1c81a0c8f2e3d491a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-27', 1, '', '', '2023-07-26 13:10:37', '2023-07-27 12:28:30'),
(3249, 'FuubgSqtTJb86oHtJHvES4cjw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When the final report by the police discloses non-cognizable offence in investigation involving cognizable and non-cognizable offences, the Magistrate can proceed to take cognizance for such non-cognizable offence. Kerala High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sumesh Vs State of Kerala and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL. MC 1816 of 2016 decided on 19 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice A. Badharudeen.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This petition has been filed under Section 482\r\nof the Code of Criminal Procedure to quash Annexure.A\r\ncharge sheet filed in Crime No.1921/2011 of\r\nPerumbavoor Police Station which has been pending as\r\nC.C. No.959/2013 before the Judicial First Class\r\nMagistrate Court, Perumbavoor.&nbsp;<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. In view of the rival arguments, the question\r\narises is; what is the legal effect of a Final Report filed\r\nby the police finding commission of non-cognizable\r\noffence/offences on completing investigation involving\r\nallegation of commission of cognizable and noncognizable offences?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. To be on the facts of this case, it is crystal\r\nclear from Annexure.A charge sheet that the Magistrate\r\nforwarded a complaint alleging commission of offences\r\ninclusive of cognizable and non-cognizable offences.\r\nDuring investigation, the Investigating Officer found that\r\nonly non-cognizable offence was made out. Accordingly,\r\nhe had filed Annexure.A Final Report. Acting on the Final\r\nReport, the learned Magistrate proceeded the matter and\r\ntook cognizance for the offence punishable under Section\r\n493 of IPC.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. No doubt, Section 198 of Cr.P.C. provides that\r\nno court shall take cognizance of an offence punishable\r\nunder Chapter XX of the Indian Penal Code (45 of 1860)&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">except upon a complaint made by some persons\r\naggrieved by the offence. In the case at hand, the\r\ncomplainant rightly lodged complaint before the proper\r\ncourt, which in turn forwarded to the police for\r\ninvestigation, since the complainant alleged commission\r\nof \'cognizable\' and \'non-cognizable\' offences.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. At the same time, Section 2(d) of Cr.P.C.\r\ndefines a complaint as under:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“2. Definitions. - In this Code, unless the\r\ncontext otherwise requires,-\r\n(a) xxx\r\n(b) xxx\r\n(c) xxx</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>(d) “complaint” means any allegation made\r\norally or in writing to a Magistrate, with a view to\r\nhis taking action under this Code, that some\r\nperson, whether known or unknown, has\r\ncommitted an offence, but does not include a\r\npolice report.\"</i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Reading the explanation to the definition\r\nunder Section 2(d) of Cr.P.C., it is clear that a report\r\nmade by the police officer in a case which discloses,\r\nafter investigation, the commission of a non-cognizable\r\noffence shall be deemed to be a complaint and the police\r\nofficer by whom such report is made shall be deemed to\r\nbe the complainant.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Since the learned counsel for the petitioner\r\nhas appraised the facts of this case, he has placed a\r\ndecision of the Apex Court reported in State of Orissa\r\nv. Sharat Chandra Sahu and Another [(1996) 6 SCC\r\n435], which dealt with the powers of the investigation\r\nwhen cases involving cognizable and non-cognizable\r\noffences. In the said decision the Apex Court considered\r\nthe mandate of Section 155(4) of Cr.P.C. and held that\r\nwhere a case relates to two or more offences of which at\r\nleast one is cognizable, the case shall be deemed to be a\r\ncognizable case, notwithstanding that the other offences\r\nare non-cognizable.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. Section 155(4) of Cr.P.C. reads as under:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>155. Information as to non-cognizable\r\ncases and investigation of such cases.-</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>(1) When information is given to an officer in\r\ncharge of a police station of the commission\r\nwithin the limits of such station of a noncognizable offence, he shall enter or cause to be\r\nentered the substance of the information in a\r\nbook to be kept by such officer in such form as\r\nthe State Government may prescribe in this\r\nbehalf, and refer the informant to the Magistrate.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>(2) No police officer shall investigate a noncognizable case without the order of a Magistrate\r\nhaving power to try such case or commit the case\r\nfor trial.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>(3) Any police officer receiving such order\r\nmay exercise the same powers in respect of the\r\ninvestigation (except the power to arrest without\r\nwarrant) as an officer in charge of a police station\r\nmay exercise in a cognizable case.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n(4) Where a case relates to two or more\r\noffences of which at least one is cognizable, the\r\ncase shall be deemed to be a cognizable case,\r\nnotwithstanding that the other offences are noncognizable.”</i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. In paragraph Nos. 10, 11 and 12 of the above\r\ndecision the Apex Court held as under:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“10. Sub-section (4) of this section clearly\r\nprovides that where the case relates to two\r\noffences of which one is cognizable, the case shall\r\nbe deemed to be a cognizable case\r\nnotwithstanding that the other offence or\r\noffences are non-cognizable.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>11. Sub-section (4) creates a legal fiction\r\nand provides that although a case may comprise\r\nof several offences of which some are cognizable\r\nand others are not, it would not be open to the\r\npolice to investigate the cognizable offences only\r\nand omit the non-cognizable offences. Since the\r\nwhole case (comprising of cognizable and noncognizable offences) is to be treated as\r\ncognizable, the police had no option but to\r\ninvestigate the whole of the case and to submit a\r\ncharge-sheet in respect of all the offences,\r\ncognizable or non-cognizable both, provided it is\r\nfound by the police during investigation that the\r\noffences appear, prima facie, to have been\r\ncommitted.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>12. Sub-section (4) of Section 155 is a new\r\nprovision introduced for the first time in the Code\r\nin 1973. This was done to overcome the\r\ncontroversy about investigation of non-cognizable\r\noffences by the police without the leave of the\r\nMagistrate. The statutory provision is specific,\r\nprecise and clear and there is no ambiguity in the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">language employed in sub-section (4). It is\r\napparent that if the facts reported to the police\r\ndisclose both cognizable and non-cognizable\r\noffences, the police would be acting within the\r\nscope of its authority in investigating both the\r\noffences as the legal fiction enacted in subsection (4) provides that even a non-cognizable\r\ncase shall, in that situation, be treated as\r\ncognizable.”</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. Applying the ratio of Sharat Chandra Sahu\'s\r\ncase (supra) if the facts reported to the police disclose\r\nboth cognizable and non-cognizable offences, the police\r\nwould be acting within the scope of its authority in\r\ninvestigating both the offences as the legal fiction\r\nenacted in sub-section (4) provides that even a noncognizable case shall, in that situation, be treated as\r\ncognizable.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. Since the law is settled in the facts of the\r\ngiven case, though the Magistrate forwarded a complaint\r\ninvolving offences cognizable and non-cognizable in\r\nnature to the police and the police files a report finding\r\nthat non-cognizable offence was committed, the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Magistrate is legally empowered to proceed with the\r\ntrail. If so, the contentions raised by the learned counsel\r\nfor the petitioner in the facts of the case at hand must\r\nfail.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>Therefore, the Crl.M.C. stands dismissed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0ce7f4d98bf92fb4cc8a9432d273ce38.jpeg', '0d13feb1a9003515a0568e9b024157b2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-27', 1, '', '', '2023-07-26 13:24:42', '2023-07-27 06:20:01'),
(3250, 'PsadR3zSoO8RxW9RtKg2GInzF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'State or its authorities cannot levy tax on the properties belong to Union of India constructed after the commencement of the Constitution of India in view of Article 285. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Union of India and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 33252 of 2012 decided on 8 November 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M.G.S. Kamal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>It is the case of the petitioners that it owns buildings in Mangalore City which has been used for residential quarters for its employees and the said building is situated within the jurisdiction of respondent No.2-Corporation. That respondent No.3 had demanded property tax in respect of the building used for residential purposes by the petitioner No.3.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space:pre\">	</span>It is the further contention of the petitioners that it was subsequently noticed that demand made by the respondent No.-2 corporation with regard to payment of property tax was illegal and contrary to the provisions of Article 285 (1) of the Constitution of India. Therefore, a representation dated 25.02.2010 as per Annexure-A was made to the respondent No.2 seeking exemption of the building from the payment of property tax and also sought for refund of the amount already paid by it. Since, no action was taken, the petitioner No.3 made another representation on 25.05.2010 as per Annexure-B reiterating its earlier requisition. However, on 04.06.2010, respondent No.3 relying upon the provision of Section 110(1)(j) of the Karnataka Municipal Corporation Act, 1976 (hereafter referred to as the KMC Act) rejected the claim of the petitioner No.3 and demanded for payment of property tax for the year 2009-10 as per Annexure-C. In response thereof, petitioner No.3 after obtaining opinion from its Law Department made yet another representation on 28.09.2010 as per Annexure-D seeking exemption from payment of property tax as provided under Article 285 (1) of the Constitution of India. The respondent No.4 without considering the representations given earlier, issued another demand notice dated 16.07.2011 demanding payment of arrears of property tax in respect of the building belonging to the petitioners on the premise of the provisions of the Section 110(j) of the KMC Act, 1976. Being aggrieved by the aforesaid demand, petitioners are before this Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 5.<span style=\"white-space:pre\">	</span>This Court considering the fact and situation of the matter had directed the learned Additional Solicitor General appearing for the petitioners and learned counsel appearing for the respondent Nos.2 to 4 to furnish the details with regard to the date of construction of building in question. Learned counsel for the respondent No.3 has submitted copy of the building licence concerning the property in the nature of demand register extract. It is seen that the building licence has been issued by the respondent No.2 on 26.04.1991 and building has been completed and occupancy certificate has been issued on 10.06.1994. The aforesaid information was required in view of the Article 285 of the Constitution of India which provides as under;<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>\"285. Exemption of property of the Union from state taxation.-</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>(1) The property of the Union shall, save in so far as Parliament may by law otherwise provide, be exempt from all taxes imposed by a State or by any authority within a State.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>(2) Nothing in clause (1) shall , until Parliament by law otherwise provides, prevent any authority within a State from levying any tax on any property of the Union to which such property was immediately before the commencement of this Constitution liable or   treated   as liable, so long as that tax continues to be levied in that State\". </i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space:pre\">	</span>Thus, it is clear from reading of the clause (1) of Article 285 of the Constitution extracted hereinabove that if a building belonging to Union of India was in existence prior to coming into effect of the Constitution and said building unless Parliament may by law otherwise be exempt from levy of tax by the State or any other authorities. Clause (2) of the Article 285 of the Constitution on the other hand makes it clear that if a building was in existence prior to commencement of the Constitution and till Parliament by law otherwise provides the same shall not levy tax thereon. In the instant case as noted above, the building in question has come into existence in the year 1994 subsequent to commencement of Constitution.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>7.<span style=\"white-space:pre\">	</span>Learned ASG also relies upon the judgment of this Court in the case of Union of India and others vs. City Municipal Council, Rani Bennur and another reported in AIR 2000 Karnataka 104, wherein dealing with identical situation, this Court at paragraph 7 as held as under;</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i> “7. Provisions of Article 289 exempt the property of the State and that of Article 285, provide exemption to property of the Union are complementary to each other with a view not to levy the tax by State Legislature on the property of the Union and also by the Parliament on the property of the State. Article 285 refers to the property of the Union. If the property belongs to the Union, then, irrespective of its use, no tax could be levied by the State Legislature or by Municipal Authorities. The concept of use is not provided under Article 285. The denial of exemption under the proviso to Section 94 of the Act on the ground that the property is used or intended to be used for residential or commercial purpose cannot be considered to be inconsonance with the spirit of Article 285 of the Constitution of India. Any property belonging to the Union of India irrespective of its use could not be subjected to tax and therefore the proviso of Section 94 of the Karnataka Municipalities Act to that extent is ultra vires of Article 285 of the Constitution of India”. </i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space:pre\">	</span>Learned counsel for the respondent Nos. 2 to 4 does not dispute the aforesaid legal position. In that view of the matter, petition deserves to be allowed quashing the demand notices as per Annexures-C and F. As regards the prayer for refund of Rs.4,42,675/- is concerned which was apparently paid by the petitioners under bonafied intention, learned counsel for the respondents submits that the petitioners though not liable for property tax, are liable to pay service tax for the amenities provided and that the amount so paid would be adjusted/set off against the said claim. Learned ASG has no objection for the same. The respondent –authorities shall intimate about the service tax which the petitioners are liable to pay and the amount already paid by the petitioners as noted above shall be adjusted against the said demand. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>With the aforesaid observations, the petition is disposed of.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e6a0fb072d00641a3b1c0fabfa3388ae.JPG', '57edee18bb8ad8d460f1c208d77d228d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-27', 1, '', '', '2023-07-26 14:20:19', '2023-07-27 03:22:38');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3279, 'NXwv3qk7ptlKw3DteCDxHEwlb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transfer of Property act. Unpaid vendor has a charge on the property for the amount of consideration which was not paid. However, the sale deed cannot be challenged on this ground. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Yogendra Prasad Singh thr LRS Vs Ram Bachan Devi and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 10412 of 2013 decided on 31 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Abhay S. Oka and Justice Rajesh Bindal.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. The appellants are the legal representatives of the original plaintiff. For the sake of convenience, parties are hereinafter referred to with reference to their status before the Trial Court. The Trial Court decreed the Suit which has been reversed in appeal.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. The first defendant executed a registered Deed of Cancellation dated 15th June 1967 in respect of the cancellation of the Sale Deed. The plaintiff was admittedly not a signatory to the said Deed of Cancellation. Thereafter, the first defendant purported to execute a Gift Deed dated 12th January 1968 (for short ‘the Gift Deed’) in respect of the suit property in favour of the second defendant. The case of the plaintiff is that though he was all along in possession, on the basis of the order passed in proceedings under Section 145 of the Code of Criminal Procedure, 1973 he was illegally dispossessed from the suit property. Therefore, the plaintiff filed a Suit for declaration of title. The plaintiff also claimed a declaration that the Gift Deed is forged. The plaintiff prayed for a decree for possession of the suit property.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. The basic contention of the first defendant in his written statement was that by the Sale Deed, absolute sale was not effected. It is contended that out of the consideration of Rs.10,000/­, the plaintiff had agreed to pay a sum of Rs.6,875/­ for redeeming the 10 mortgages made by the first defendant. The balance amount of Rs.3,125/­ was to be paid on the exchange of equivalents (ta khubzul badlain). The contention of the first defendant is that in fact the mortgages were redeemed by him and therefore, he was in possession of the mortgage deeds. His contention is that as no consideration was passed under the Sale Deed, the plaintiff has not acquired any right, title or interest in the suit property.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. The Trial Court after in­depth consideration of the evidence on record, concluded that the plaintiff had acquired ownership in respect of the suit property on the basis of the Sale Deed. It was held that the Deed of Cancellation dated 15th June 1967 being a unilateral document was not valid. The Trial Court held that the remedy of the first defendant was to invoke Section 31 of the Specific Relief Act, 1963 and seek cancellation of the Sale Deed. The Trial Court also held that the second defendant did not acquire any right, title or interest on the basis of the Gift Deed executed by the first defendant. The Trial Court accepted the case made out by the appellant that the liabilities of the first defendant were discharged by him.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12. A sale deed of an immovable property is executed in accordance with Section 54 of the Transfer of Property Act, 1882 (for short, ‘the 1882 Act’). There cannot be any dispute that normally, on the execution of a registered Sale Deed by the owner of the property, the title in the property subject matter of the Sale Deed stands transferred to the purchaser. Considering the principles laid down in sub­section (4)(b) of Section 55 of the 1882 Act, the seller will have a charge over the property subject matter of the sale for unpaid consideration and he can enforce the charge by filing a suit.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>13. The entire case of the defendants is based on the decision of this Court in the case of Janak Dulari Devi . In paragraph 20 of the said decision this Court held thus :</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>“20. We have referred to several decisions of the Patna High Court in detail to demonstrate the existence of the established practice of exchanging equivalents (ta khubzul badlain). The effect of such transactions in Bihar is that even though the duly executed and registered sale deed may recite that the sale consideration has been paid, title has been transferred and possession has been delivered to the purchaser, the actual transfer of title and delivery of possession is postponed from the time of execution of the sale deed to the time of exchange of the registration receipt for the consideration, that is, ta khubzul badlain.”</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>“24. We hasten to add that the practice of ta khubzul badlain (of title passing on exchange of equivalents) is prevalent only in Bihar. Normally, the recitals in a sale deed about transfer of title, receipt of consideration and delivery of possession will be evidence of such acts and events; and on the execution and registration of the sale deed, the sale would be complete even if the sale price was not paid, and it will not be possible to cancel the sale deed unilaterally. The exception to this rule is stated in Kaliaperumal [(2009) 4 SCC 193 : (2009) 2 SCC (Civ) 101] . The practice of ta khubzul badlain in Bihar recognises that a duly executed sale deed will not operate as a transfer in praesenti but postpones the actual transfer of title, from the time of execution and registration of the deed, to the time of exchange of equivalents, that is, registration receipt and the sale consideration, if the intention of the parties was that title would pass only on payment of entire sale consideration. As a result, until and unless the duly executed and registered sale deed comes into the possession of the purchaser, or until the right to receive the original sale deed is secured by the purchaser by obtaining the registration receipt, the deed of sale remains merely an agreement to be performed and will not be a completed sale. But in States where such a practice is not prevalent, possession of registration receipt by the vendor, may not, in the absence of other clear evidence, lead to an inference that consideration has not been paid or that title has not passed to the purchaser as recited in the duly executed deed of conveyance. Where the purchaser is from an outstation, the vendor being entrusted with the registration receipt, to collect the original sale deed and deliver it to the purchaser, is common. Be that as it may.”</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Thus, this Court held that normally, on the execution and registration of a sale deed containing recitals regarding the payment of consideration and delivery of possession, the sale is complete even if the sale price is not paid and, therefore, it will not be possible to cancel the sale deed in its entirety. However, the exception to the said rule is the practice of ta khubzul badlain. The use of the expression ta khubzul badlain in a sale deed by itself will not be determinative of the true nature of the transaction. It cannot be read in isolation. All the terms and conditions and recitals in the document will have to be considered to decide the real nature of the transaction.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>15. Therefore, the use of the words “khubzul badlain”, in the facts of the case, cannot be conclusive. It is true that the Sale Deed refers to various mortgages executed by the first defendant for getting money and the recitals indicate that the plaintiff had agreed to discharge the said loan liabilities. But, there is a specific recital in the Sale Deed that the title and possession in the property has been passed to the plaintiff. These recitals regarding the transfer of title and possession are very crucial which cannot be brushed aside.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>16. On overall reading of the Sale Deed, it is apparent that under the Sale Deed, the entire right, title and interest of the first defendant in the suit property has been transferred to the plaintiff by the said sale deed. At the highest, as per sub­section (4)(b) of Section 55 of the 1882 Act, the first defendant was entitled to have a charge on the suit property for the amount of consideration which was not paid by the plaintiff. Even this provision may not help the first defendant. The reason is that the plaintiff has taken over the suit property with liabilities as set out in the Sale Deed. The creditors of the first defendant can, therefore, proceed against the suit property. Once we hold that the title and ownership passed on to the plaintiff on the date of Sale Deed, it is not necessary to go into the question whether the appellant has discharged liabilities of the loan especially when the first or second defendants did not file a counter­claim for payment of the consideration payable under the Sale Deed.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17. There is one more aspect of the case. If it was the case of the first defendant that there was no transfer of title under the said Sale Deed, there was no reason for him to unilaterally execute a document of cancellation of the sale deed. In any case, such a unilateral cancellation deed was not binding on the plaintiff as he was not a consenting party. The second defendant will not get any right by virtue of the gift deed as the first defendant had no transferable title. As the ownership of the plaintiff is proved, the decree for possession must follow. There was no counter­claim made by the first or second defendant for claiming alleged unpaid consideration.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18. Therefore, the appeal succeeds. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19. The appeal is allowed on the above terms with no order as to costs.</b></font></p>', '6e19b11269ae25ea164bfb01c0d06873.jpeg', '30b556f58908a458b23df5ab6f28cbfe.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-02', 1, '', '', '2023-08-01 12:20:31', '2023-08-02 06:26:57'),
(3251, 'YDtoEIIwSD1iyXY4VnD9OL8WR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘Life is lost in living’. Matrimonial case involving prayer for dissolution of marriage should be decided at the earliest so that in the event of decree, the parties may restructure their lives. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>N Rajeev Vs C. Deepa.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 14769 of 2023 decided on 26 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The short grievance of the petitioner is as to the long\r\npendency of his matrimonial case in M.C.No.2514/2016\r\nwherein he has sought for a decree for the\r\ndissolution/nullity of marriage, qua the respondent, on\r\nfault grounds. Learned counsel for the petitioner submits\r\nthat the right to speedy justice being recognized by the\r\nApex Court as a constitutional guarantee under Article 21,\r\na direction is to be issued for the expeditious disposal of\r\nthe said case. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. Having heard the learned counsel for the\r\npetitioner and having perused the Petition Papers, this\r\nCourt is broadly in agreement with the proposition that the\r\nmatrimonial causes should be tried & disposed off on a war\r\nfooting, at least as a concession to the shortness of human </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">life. It was Thomas Carlyle (1795-1881), a British\r\nhistorian of great repute who had said: “Life is too short to\r\nbe little”. When a matrimonial case involves the prayer\r\nfor the dissolution/nullity of marriage, courts should make\r\nall efforts to try & dispose off the same within an outer\r\nlimit of one year, so that in the event of granting such a\r\ndecree, the parties may restructure their lives. It hardly\r\nneeds to be stated ‘life is lost in living’. Delay in disposal\r\nof such cases very badly affects the parties thereto, needs\r\nno deliberation.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the above circumstances, learned Family Court\r\nJudge is requested to accomplish the trial & disposal of the\r\nsubject seven year old case preferably within an outer limit\r\nof three months, all contentions having been kept open. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4f4d77f2fb5419b1488c925c5e010f41.JPG', '692415b897931354d613a59a7d6254ae.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-28', 1, '', '', '2023-07-27 12:35:31', '2023-07-28 06:27:36');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3252, 'ABqLo5jqsJhRr8Ts2DdOIdYQg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Land Acquisition Act. Beneficiary is not a necessary party when the landowner seeks reference to Court under section 18(1) or 18(3)(b) of the Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Madhuvana House Building Vs Spl LAO and Assistant Commissioner and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 24028 of 2022 decided on 21 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioner in all these writ petitions is\r\nMadhuvana House Building Co-operative Society,\r\nMysuru (‘society’ for short). Persons, namely, 1)\r\nB.Mahadevappa, 2) Nanjappa and 3)\r\nMallikarjunappa who are now deceased and\r\nrepresented by their legal representatives, are\r\nreferred to as land owners for the sake of\r\nconvenience. The material facts as stated by the\r\nsociety are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. On 24.02.1990, the Special Deputy\r\nCommissioner, Mysuru issued a notification under\r\nsection 4(1) o f the Land Acquisition Act, 1894\r\n(‘Act’ for short) proposing to acquire 72 acres 12&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">guntas of land for the benefit of society. The\r\nnotification was gazetted on 09.03.1990. Final\r\nnotification under section 6 of the Act was\r\ngazetted on 04.04.1991 and the award was passed\r\non 08.04.1993. It is stated that notice of award\r\nrequired to be given to the land owners under\r\nsection 12(2) of the Act was served on the owners\r\nof land in Sy.Nos.25/1, 25/2 and 11 of Satenahalli\r\non 08.09.1995. The land owners who were not\r\nsatisfied with the award were supposed to have\r\nmade an application to the acquiring authority\r\nwithin 90 days from the date of service o f notice\r\nunder section 12(2) o f the Act. Since the notice\r\nwas served on 08.09.1995, the land owners should\r\nhave sought reference on or before expiry of 90th\r\nday i.e., 08 .12.1995. But they submitted the\r\napplication on 19.06.1997, more than two years\r\nafter service of notice under section 12(2). The\r\napplication was highly time barred. When the&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">acquiring authority did not make reference to the\r\nCivil Court, the land owners approached the Civil\r\nCourt with applications under section 18(3)(b) of\r\nthe Act on 15.07.1998 and in those applications\r\nthey stated that they received the award amount\r\non 28.04.1997, but did not mention the date on\r\nwhich the notice under section 12(2) of the Act\r\nwas served on each o f them. The applications\r\nunder section 18(3)(b) were registered as LAC\r\nNos. 422/1998, 423/1998 and 424/1998 and in all\r\nthese applications the land owners impleaded the\r\nAssistant Commissioner and Land Acquisition\r\nOfficer, Mysuru Sub-Division as the respondent,\r\nbut did not implead the society as respondent\r\nNo.2. Though the State i.e., the Land Acquisition\r\nOfficer contested the applications under section\r\n18(3)(b) on the ground of delay in seeking\r\nreference, on 24.11.2004 an Ex-Government\r\nPleader filed memos in the court stating that the&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">claimants received the award amount on\r\n28.04.1997 and their applications filed on\r\n19.06.1997 were within time and prayed for\r\nallowing the applications made under section\r\n18(3)(b). The Principal Civil Judge, Mysuru,\r\naccepted the memos and finding that the cause of\r\naction for the applications arose on 28 .04.1997,\r\nallowed them and directed the acquiring authority\r\nto make reference as sought by the land owners.\r\nThe contention of the society is that the hearing\r\ndate fixed by the court was actually 08 .12.2004,\r\nthe applications had not been listed before the\r\ncourt on 24.11.2004 and therefore an unauthorized\r\nperson filed memos in the court for allowing the\r\napplications.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. In the meanwhile , the land owners filed\r\nexecution petitions against the Special Land\r\nAcquisition Officer and the society, and sought\r\nattachment of the money deposited in the State\r\nHuzur Treasury. In the execution petitions, the\r\nSpecial Land Acquisition Of ficer objected to the\r\nexecution by submitting that former Government\r\nPleader had unauthorisedly filed the memos dated\r\n24.11.2004 and therefore the reference&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">applications which were barred by time did not\r\nclothe the Civil Court with jurisdiction to pass\r\nawards under section 23. The executing court\r\nrejected the ob jections. Some of the allottees of\r\nthe society approached the High Court challenging\r\nthe order of rejection of objections by filing a writ\r\npetition which was allowed by the learned Single\r\nJudge of this Court and the said order was\r\nquestioned in a writ appeal although it was not\r\nmaintainable. But the writ appeal was allowed on\r\nthe sole ground that the allottees had no locusstandi to prefer writ petition. Then the society\r\nfiled W.P.No.16273/2021 which was allowed on\r\n06.09.2021 directing the executing court to\r\nconsider the additional ob jection statement of the\r\nsociety in regard to want of jurisdiction of the\r\nexecuting court. The society filed detailed\r\nobjections in the form o f application under section\r\n47 CPC pleading incurable defect in seeking&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reference, default in making the society a party in\r\nthe application for reference and fraud played by\r\ngetting filed unauthorised memos for the purpose\r\nof allowing the applications. The decree holders\r\ni.e., the land owners did not file ob jections to the\r\napplication under section 47 CPC. The court\r\npassed an order on 17.11.2022 rejecting the\r\napplication with an observation that similar\r\nobjections had been decided already. Hence, these\r\nwrit petitions.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Sri S.P.Shankar, learned Senior Counsel,\r\naddressed argument in all the writ petitions on\r\nbehalf o f Smt. Mamata Gururao Kulkarni, learned\r\ncounsel for the society. Learned counsel Smt.\r\nSona Vakkund, argued for the legal representatives\r\nof the land owners and Sri V Shivareddy, learned\r\nHigh Court Government Pleader, appeared on\r\nbehalf of State . Smt. Mamata Gururao Kulkarni\r\nand Smt. Sona Vakkund filed synopsis of their\r\narguments besides relying on a number of rulings&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which will be referred to in the course of\r\ndiscussion; and from the points that they\r\ncanvassed, the following points emanate for\r\ndiscussion :</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n(i) Was the society being a beneficiary a\r\nnecessary or a proper party in the\r\nproceeding under section 18(3)(b) of the\r\nAct?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(ii) Could the issue of lack of jurisdiction with\r\nreference to limitation be raised in the\r\nexecution proceeding under section 47 of\r\nCode of Civil Procedure?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(iii)Assuming that W.A.Nos. 17183-17186/2011\r\nand connected appeals were not\r\nmaintainable in view of law declared by full\r\nbench of this court in the case o f\r\nTammanna AND OTHERS vs M iss.\r\nRENUKA AND OTHERS (ILR 2009 Kar\r\n1207) as argued by Sri. S.P.Shankar,&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">whether the order in W.P.No. 41455/2010\r\nand connected matters has any bearing on\r\nexecutabity of awards?</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n(iv)Were the land owners estopped from\r\nseeking reference as they received the\r\ncompensation without protest?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(v) Is the society estopped from urging the\r\nissues pertaining to non-impleadment of\r\nsociety in the proceeding under section\r\n18(3)(b) of the Act, and the issues relating\r\nto limitation and fraud in the writ\r\njurisdiction in view of dismissal o f MFAs and\r\nwithdrawal of W.P.Nos. 153-155/2010 filed\r\nby the society challenging the awards of the\r\nCivil Court passed in reference\r\nproceedings?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(vi)Whether writ petitions deserve to be\r\nallowed? What is the order to be passed?</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No. (i)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. The argument thus advanced requires me\r\nto make clear the meaning of reference proceeding\r\nand deal with scope of sections 20 and 50 of the\r\nAct, before answering the point under discussion.\r\nIn terms of section 18 (1), the land owner can\r\nmake an application to the Deputy Commissioner\r\nto refer the matter to the court in case he is not\r\nsatisfied with the award, and if the Deputy\r\nCommissioner does not refer within the time\r\nprescribed, the land owner can approach the Civil\r\nCourt making an application under section 18\r\n(3)(b) seeking a direction to the Deputy\r\nCommissioner to refer the matter. This is a right\r\navailable to the land owner. Once the Deputy\r\nCommissioner makes a reference, according to\r\nsection 20 of the Act the court has to issue notice\r\nto (i) the applicant i.e., the land owner, (ii) all\r\npersons interested in the ob jection except such (if\r\nany) o f them as have consented without protest to&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">receive payment of the compensation awarded and\r\n(iii) if the ob jection is in regard to the area of the\r\nland or to the amount of compensation, the\r\nCollector i.e., the Deputy Commissioner . The word\r\n‘objection’ in other words is the application that\r\nthe land owner makes to the Deputy Commissioner\r\nfor seeking reference. After issuance of notice as\r\ncontemplated in Section 20, the court proceeds to\r\ndetermine the compensation having regard to\r\nguidelines prescribed in sections 23 and 24 of the\r\nAct and passes award according to section 26.\r\nTherefore it becomes clear that the meaning of\r\n‘Reference Proceeding’ is that proceeding which\r\ntakes place before the court after the Deputy\r\nCommissioner refers the matter to the court for\r\npassing an award according to section 26 o f the\r\nAct; any proceeding for consideration of an\r\napplication made either under section 18(1) or\r\n18(3)(b) of the Act, is not a reference proceeding;&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">it is just a proceeding to decide whether matter is\r\nto be sent to court or not for the purpose of\r\ndetermining the compensation. The Deputy\r\nCommissioner cannot deny to make reference to\r\nthe court, and at the stage of making reference on\r\nan application made before him under section 18\r\n(1) all that he has to ascertain is whether the\r\napplication has been made within time. And during\r\nthe proceedings under section 18(3) (b) before the\r\ncourt, the Deputy Commissioner may bring it to\r\nthe notice of court that no application had been\r\nmade to him under section 18 (1), or if the\r\napplication had been filed, it was time barred and\r\nhence he cannot be directed to make reference.\r\nThe enquiry at this stage is very limited to this\r\nextent; neither the Deputy Commissioner nor the\r\ncourt proceeds to determine the compensation at\r\nthe stage of making reference. For this reason\r\nparticipation of the beneficiary at pre-reference&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">stage is not at all necessary; beneficiary need not\r\nbe heard on the application made for seeking\r\nreference. Presence of the beneficiary is\r\nnecessary only when the court holds or conducts\r\nenquiry for determining the compensation amount\r\nfor passing award under section 26 o f the Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. In the case on hand, the society was a\r\nparty before the court in the reference proceeding&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for determination of compensation. It did\r\nparticipate and cross examine the land owners;\r\nthis is undisputed fact. That means society was\r\nheard before enhancing the compensation. I f it\r\nhad not been made a party in the proceeding\r\nbefore the court on an application under section\r\n18(3)(b) of the Act, it cannot be made a ground to\r\nstall the execution proceedings. The presence of\r\nbeneficiary at the stage of making reference is not\r\nat all necessary as at that stage no decision as to\r\ndetermination of compensation is taken. Therefore\r\npoint (i) is answered in negative.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(ii) :&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. Before answering this point, it may be\r\nnoted here that the society, when it participated\r\nbefore the court in the reference proceeding (i.e.,\r\nfor determination of compensation), did not\r\ncontend about the question of limitation. The&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cross examination of the land owner shows no\r\nquestion relating to limitation being put to him. It\r\nis not as though question of limitation cannot be\r\nurged in the proceeding before the court for\r\ndetermination o f compensation; it can be .</span><span style=\"font-size: 12pt;\">&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. In the case on hand, no doubt the society\r\nhas produced copy of the notice issued to the land\r\nowners under section 12(2) of the Act. On the\r\nback of the notice , a signature and a thumb\r\nimpression purportedly of land owners are there.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The service of notice is disputed by the land\r\nowners; whatever may be the contention of the\r\nland owners, if according to the society as also the\r\nacquiring authority, notices were duly served with\r\ncopy of the award on the land owners nothing\r\nprevented them from contending about it before\r\nthe court in the proceeding under section 18(3) (b)\r\nof the Act or in the reference proceeding. In these\r\nwrit petitions a ground has been taken that an\r\nunauthorized person filed a memo conceding that\r\nreference was within time and the court should not\r\nhave acted upon it. Sri. S.P.Shankar has relied on\r\na judgment of the Supreme Court in the case of\r\nKirti and Another Vs. Oriental Insurance\r\nCompany Ltd., [(2021) 2 SCC 166] in which it is\r\nheld that concession in law made in this regard by\r\neither counsel cannot throw away legal rights or\r\nenter into arrangement contrary to law. Certainly,\r\ncourts cannot act on concessions of parties or&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">advocates while deciding the question of limitation\r\nor maintainability of a suit or proceeding . But this\r\ncontention should have been urged at the earliest\r\npoint of time or in the appeals filed after the\r\nawards were passed. Whenever mixed question of\r\nlaw and facts are involved, no finding as to\r\nlimitation can be given in a writ proceeding .\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 30. The next aspect to be answered is, if the\r\ncourt passed an award in a reference which,\r\naccording to society was time barred, did the\r\naward become nullity as the court lacked inherent\r\njurisdiction to entertain time barred reference.\r\nThe reference court lacked inherent jurisdiction to\r\nentertain a time barred reference and thereby the\r\nawards became nullity and unexecutable, was the\r\npoint argued by Sri. S.P .Shankar. He has sought\r\nsupport for his argument from two decisions of the\r\nSupreme Court in the cases of K iran Singh\r\n(supra) and Jagmittar Sain Bhagat and Others</span><span style=\"font-size: 12pt;\">&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">vs Director , Health Services, Haryana and\r\nOthers [(2013) 10 SCC 136].</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. In Kiran Singh, the question as to\r\njurisdiction of the court arose in the context of\r\nsection 11 o f the Suits Valuation Act, and while\r\ndwelling on it, the Supreme Court laid down a ratio\r\nthat :</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i> “6. ………. . It is a fundamental principle well\r\nestablished that a decree passed by a Court without\r\njurisdiction is a nullity, and that its invalidity could\r\nbe set up whenever and wherever it is sought to be\r\nenforced or relied upon, even at the stage of\r\nexecution and even in collateral proceedings…….”&nbsp;</i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. Following Kiran Singh ’s case and\r\ndecisions in other cases, the Supreme Court in the\r\ncase of Jagmittar Sain Bhagat reiterated the\r\nprinciple as extracted below:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“9. Indisputably, it is a settled legal\r\nproposition that conferment of jurisdiction is a\r\nlegislative function and it can neither be conferred&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">with the consent of the parties nor by a superior\r\nCourt, and if the Court passes a decree having no\r\njurisdiction over the matter, it would amount to\r\nnullity as the matter goes to the root of the cause.\r\nSuch an issue can be raised at any stage of the\r\nproceedings. The finding of a Court or Tribunal\r\nbecomes irrelevant and unenforceable/ inexecutable\r\nonce the forum is found to have no jurisdiction.\r\nSimilarly, if a Court/Tribunal inherently lacks\r\njurisdiction, acquiescence of party equally should\r\nnot be permitted to perpetrate and perpetuate\r\ndefeating the legislative animation. The Court\r\ncannot derive jurisdiction apart from the Statute. In\r\nsuch eventuality the doctrine of waiver also does\r\nnot apply. (Vide: United Commercial Bank Ltd. v.\r\nTheir Workmen, AIR 1951 SC 230; Smt. Nai Bahu\r\nv. Lal Ramnarayan &amp; Ors., AIR 1978 SC 22; Natraj\r\nStudios (P) Ltd. v. Navrang Studios &amp; Anr., AIR\r\n1981 SC 537; and Kondiba Dagadu Kadam v.\r\nSavitribai Sopan Gujar &amp; Ors., AIR 1999 SC 2213).”</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. The settled law is, a decree or award\r\npassed by a court or tribunal which lacks inherent\r\njurisdiction to decide a case is a nullity, and if\r\nsuch a decree or award is put into execution its\r\nnon-executability can be raised in the execution&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">proceeding in terms of section 47 of CPC. What is\r\nthe meaning of inherent lack of jurisdiction? If a\r\ncourt entertains a time barred suit and passes a\r\ndecree, can it be said that the court lacked\r\ninherent jurisdiction to entertain the suit and\r\nthereby the decree is a nullity? Answers to these\r\nquestions may be given in the following way.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34. Inherent lack of jurisdiction means the\r\ncourt or the tribunal should not have been vested\r\nwith jurisdiction to deal with the subject matter\r\nbrought before it. To illustrate, section 9 of CPC\r\nclearly states that the court shall have jurisdiction\r\nto try the suits of civil nature and they cannot try\r\nsuits cognizance of which is either expressly or\r\nimpliedly barred. There are certain statutes which\r\nexclude the jurisdiction of the civil courts in\r\nrespect of certain matters. For instance Section\r\n34 of Securitisation and Reconstruction of Financial\r\nAssets and Enforcement of Security Interest Act&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">has excluded the jurisdiction of the civil court in\r\nrespect of matters which can be decided by Debts\r\nRecovery Tribunal or the Debts Recovery Appellate\r\nTribunal. Section 61 of Land Revenue Act bars the\r\njurisdiction of civil court in respect of matters\r\nenumerated therein. Like that there are statutes\r\nwhich have excluded the jurisdiction o f civil courts.\r\nI f the courts entertain suits in respect of these\r\nmatters and grant a decree, such decrees are\r\nunexecutable as the decrees are null and void\r\nbecause the civil courts lack inherent jurisdiction.\r\nIf the court entertains a suit in respect of which it\r\nhas no territorial jurisdiction or pecuniary\r\njurisdiction and grants a decree, such a decree\r\ndoes not become unexecutable; though the court\r\nlacked jurisdiction to entertain a suit for want of\r\nterritorial jurisdiction or pecuniary jurisdiction, it\r\ncannot be said that the court in such a case lacks\r\ninherent jurisdiction as its jurisdiction is not&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">expressly or impliedly bared in terms of section 9\r\nof CPC, and the executability of the decree passed\r\nby such a court cannot be questioned in appeal or\r\nrevision according to section 21 of CPC unless the\r\nobjection to that effect was taken at the earliest\r\npoint o f time and there has been a consequent\r\nfailure of justice. Apposite to the context, the\r\nSupreme Court has held in the case of BudhiaSwa in and Others Vs. Gopinath Deb and others\r\n– [(1999) 4 SCC 396] that :\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“9. A distinction has to be drawn between lack of\r\njurisdiction and a mere error in exercise of\r\njurisdiction. The former strikes at the very root of\r\nthe exercise and want of jurisdiction may vitiate the\r\nproceedings rendering them and the orders passed\r\ntherein a nullity. A mere error in exercise of\r\njurisdiction does not vitiate the legality and validity\r\nof the proceedings and the order passed thereon\r\nunless set aside in the manner known to law by\r\nlaying a challenge subject to the law of limitation.\"</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>35. But if decree is granted in a time barred\r\nsuit, it cannot be said that the decree becomes\r\nunexecutable . Section 3 of the Limitation Act\r\nstates that the suit or appeal or application shall\r\nbe dismissed if it is time barred. Here the court\r\nhas jurisdiction to entertain the suit or any\r\napplication, but it cannot grant a decree because\r\nof lapse of limitation period . In case if the court\r\nentertains a time barred suit, the court does not\r\nlose its inherent jurisdiction to entertain the suit,\r\nit is only an error in exercising jurisdiction. Such&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">a decree can be questioned in an appeal or\r\nrevision petition. This is how the distinction can\r\nbe made between inherent lack of jurisdiction of a\r\ncourt and error in exercising jurisdiction.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 36. In the case on hand, according to the\r\nsociety the reference petition could not have been\r\ndecided by the court as the reference itself was\r\nbad because application seeking reference was\r\nmade after lapse of limitation. As discussed\r\nabove, question of limitation could have been\r\ncontended in reference proceeding, it was not\r\ntaken. After the awards were passed, the Spl. LAO\r\nas also the society preferred appeals before this\r\ncourt and they were all dismissed. Therefore the\r\nawards attained finality. Assuming for argument\r\nsake that the reference was time barred, yet the\r\naward came to be passed; and akin to a situation\r\nlike this the Supreme Court in the case of</span><span style=\"font-size: 12pt;\">&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Ittyavira Mathai Vs. Varkey Varkey and\r\nAnother [ AIR 1964 SC 907] has held as below:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“8. The first point raised by Mr. Paikedy for\r\nthe appellant is that the decree in O. S. No. 59 of\r\n1093 obtained by Anantha Iyer and his brother in\r\nthe suit on the hypothecation bond executed by\r\nIttiyavira in favour of Ramalinga Iyer was a nullity\r\nbecause the suit was barred by time. Even\r\nassuming that the suit was barred by time, it is\r\ndifficult to appreciate the contention of learned\r\ncounsel that the decree can be treated as a nullity\r\nand ignored in subsequent litigation. If the suit was\r\nbarred by time and yet, the court decreed it, the\r\ncourt would be committing an illegality and\r\ntherefore the aggrieved party would be entitled to\r\nhave the decree set aside by preferring an appeal\r\nagainst it. But it is well settled that a court having\r\njurisdiction over the subject matter of the suit and\r\nover the parties thereto, though bound to decide\r\nright may decide wrong; and that even though it\r\ndecided wrong it would not be doing something\r\nwhich it had no jurisdiction to do. It had the\r\njurisdiction over the subject-matter and it had the\r\njurisdiction over the party and, therefore, merely\r\nbecause it made an error in deciding a vital issue in\r\nthe suit, it cannot be said that it has acted beyond&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">its jurisdiction. As has often been said, courts have\r\njurisdiction to decide right or to decide wrong and\r\neven though they decide wrong, the decrees\r\nrendered by them cannot be treated as nullities.\r\nLearned counsel, however, referred us to the\r\ndecision of the Privy Council in Maqbul Ahmed v.\r\nOnkar Pratap Narain Singh [AIR 1935 PC 85], and\r\ncontended that since the court is bound under the\r\nprovisions of section 3 of the Limitation Act to\r\nascertain for itself whether the suit before it was\r\nwithin time, it would act without jurisdiction if it\r\nfails to do so. All that the decision relied upon says\r\nis that section 3 of the Limitation Act is peremptory\r\nand that it is the duty of the court to take notice of\r\nthis provision and give effect to it even though the\r\npoint of limitation is not referred to in the\r\npleadings. The privy council has not said that where\r\nthe court fails to perform its duty, it acts without\r\njurisdiction. If it fails to do its duty, it merely makes\r\nan error of law and an error of law can be corrected\r\nonly in the manner laid down in the Civil Procedure\r\nCode. If the party aggrieved does not take\r\nappropriate steps to have that error corrected, the\r\nerroneous decree will hold good and will not be\r\nopen to challenge on the basis of being a nullity.”</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>37. In the case of Budhia Swain (supra), it is\r\nheld as below:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i> “13. None of the two pleas was raised by\r\nthe appellants in their pleadings. None of the two\r\nwas urged before O.E.A. Collector. Therefore there\r\nwas no occasion to consider those pleas. Still we\r\nmay make it clear that none of the two pleas could\r\nhave been a ground for recalling the order which\r\nwas otherwise within the jurisdiction conferred on\r\nthe O.E.A. Collector. Though it is a disputed\r\nquestion of fact, as noted by the High Court, that\r\nthe application by the respondent no.1 was filed\r\nwithin the prescribed time or not. Nevertheless, we\r\nare very clear in our mind that an order made on\r\nan application filed beyond the time prescribed for\r\nfiling the same may be an illegal order but is\r\ncertainly not an order passed without jurisdiction.”&nbsp;</i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>38. Therefore applying the above principle to\r\nthe case on hand, it can be very clearly stated that\r\nthe awards, even if they were passed in time\r\nbarred reference proceedings, did not become\r\nnullity and unexecutable , and consequently\r\nexecutability of the awards cannot be questioned&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under section 47 of CPC . Thus point No .(ii) is\r\nanswered in negative</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(iii)&nbsp;<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>39. This is a hypothetical question , but\r\nrequires to be answered. Writ petitions\r\n41455/2010 and connected petitions were filed by\r\na few allottees of the society challenging the\r\norders dated 08.12.2004 passed by the court\r\ncalling upon the Special Land Acquisition Officer to\r\nmake a reference and the award dated 19.01 .2005\r\npassed by the court enhancing the compensation.\r\nThe society has not produced the copy of the writ\r\npetition or the order therein, but as can be made\r\nout from the order in W.A.Nos.17183-17186/2011\r\nproduced by the land owners as Annexure R10 in\r\nW.P.No.24082/2022, the grounds urged in\r\nW.P.No.41455/2010 and connected matters were\r\n(i) non impleadent of society (ii) fraud played on&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the court and (iii) lapse of limitation period. The\r\nwrit petitions were allowed. The order in writ\r\npetitions were challenged in the writ appeals which\r\nwere allowed holding that the writ petitions were\r\nnot maintainable as they had been filed under\r\nArticle 226 of the Constitution of India against the\r\njudgment of the civil court and secondly, fraud\r\nbeing a disputed question of fact, writ jurisdiction\r\ncould not have been invoked.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 40. The argument of Sri S.P.Shankar was that\r\nwrit petitions had been filed under Article 227 of\r\nthe Constitution of India, and intra court appeal\r\nunder section 4 of the Karnataka High Court Act\r\nwas not maintainable in view of judgment of Full\r\nBench in the case of Tammanna. Special Leave\r\nPetition preferred against the judgment in Writ\r\nAppeals no doubt stood dismissed; but dismissal of\r\nSpecial Leave Petition did not validate the\r\njudgment in Writ Appeals, as the Division Bench</span><span style=\"font-size: 12pt;\">&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">lacked jurisdiction to entertain the Writ Appeals.\r\nAnd judgments in Writ Appeals did not operate as\r\nres-judicata to hold that awards became final.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 41. The argument of Sri S.P.Shankar appears\r\nto be technically plausible , but not acceptable. As\r\ncan be made out from the synopsis filed by the\r\ncounsel for the society and the facts culled out in\r\nthe judgment in W.A.Nos.17183-17186/2011, one\r\nof the pleas was non-impleadment of beneficiary in\r\nreference proceedings. May be under the\r\nimpression that the beneficiary had not been made\r\na party in reference proceeding i.e ., in a\r\nproceeding for determination of compensation,\r\nlearned single judge might have allowed the writ\r\npetitions. But the fact remains that the\r\nbeneficiary society was a party in reference\r\nproceedings. I have held while discussing point\r\nNo.(i) that society was not a necessary or proper\r\nparty in proceeding under section 18(3)(b) of the&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Act. If it was the plea of the society in\r\nW.P.No.41455/2010 and connected cases that it\r\nhad not been made a party in the reference\r\nproceeding, it was nothing but misleading the writ\r\ncourt. Any order passed under misconception of\r\nfact cannot be taken advantage by the society,\r\nthat too when the Special Leave Petition filed by it\r\nwas dismissed. Therefore the order in\r\nW.P.41455/2010 and connected matters has no\r\nimpact on executabity of awards.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(iv)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>42. Sri. S.P . Shankar argued that unless the\r\nland owners receive the compensation under\r\nprotest, they cannot seek reference to court and in\r\nthis regard he relied on certain rulings.&nbsp;<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>43. Smt. Sona Vakkund argued that the land\r\nowners did protest for the award, and the moment\r\nthey sought reference, it implied that they were&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not agreeable for the award passed by the Land\r\nAcquisition Officer.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 44. The argument of Sri. S.P .Shankar is not\r\nacceptable , and there is no need to refer to the\r\ndecisions relied upon by him because the society\r\nhas clearly stated in the writ petition that the land\r\nowners received the compensation under protest.\r\nHaving stated so , argument contrary to pleading\r\ncannot be entertained .</span><span style=\"font-size: 12pt;\">&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(v)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>47. The argument of Smt. Sona Vakkund was\r\nthat if according to the society the application\r\nunder section 18(3)(b) was time barred; that the\r\nreference was bad in as much as the society was\r\nnot a party in section 18(3)(b) proceeding, and\r\nthat the land owners colluded and played fraud by\r\nabusing the process o f court in getting filed a\r\nmemo dated 24.11.2004 by an unauthorized\r\nperson, the contentions in that regard ought to\r\nhave been raised in the proceeding or in the MFAs\r\nfiled by it. Then in W.P .153-155/2010, the society\r\ncontended about fraud, but it withdrew the writ\r\npetitions seeking liberty to urge all the contentions\r\ntaken there in MFAs 1482-1484/2009. But those\r\nappeals were dismissed for default. The society\r\nthus having failed to urge those contentions in the\r\nappropriate proceedings cannot urge those&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contentions again in the instant writ petitions as\r\nthey are hit by principles o f res-judicata.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>51. But Sri. S.P. Shankar placing reliance on\r\nthe judgment o f the Supreme Court in the case of\r\nSyed Mohd. Salie Labbai (Dead) by LRs and\r\nOthers vs Mohd. Han ifa by L.Rs and Others\r\n(AIR 1976 SC 1569) argued that rule of res&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">judicata would not come to the aid of the land\r\nowners as society was not a party in section\r\n18(3)(b) proceedings. Smt. Sona Vakkund also\r\nreferred to same judgment to point out that\r\nsociety was a party in reference proceedings. As it\r\nis already made clear as to how the rule of\r\nconstructive res- judicata binds the society, the\r\ncase of Syed Mohd. Salie does not help the\r\nsociety. Therefore point No .(v) is answered in\r\naffirmative.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(vi):</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>55. Be that as it may, the Special Land\r\nAcquisition Officer/Government made an\r\napplication under section 47 of CPC, it was\r\ndismissed. The society also ob jected to execution\r\nby making application under section 47 of CPC.\r\nAptly applicable to a situation like this, the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Supreme Court has held in the case of\r\nR.P.A.Vall iammal vs R .Palan icham i Nadar and\r\nOthers [AIR 1997 SC 1996] that\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> “2. ………. Section 47 postulates that all\r\nquestions arising between the parties to the\r\nsui t in which the decree was passed, or their\r\nrepresentatives, and relating to the\r\nexecution, discharge or satisfaction of the\r\ndecree, shall be determined by the Court\r\nexecuting the decree and not by a separate\r\nsuit. Explanation 1 added thereto by\r\nAmendment Act, 1976 postulates that for\r\nthe purposes of this section, a plaintif f\r\nwhose suit has been dismissed and a\r\ndefendant against whom a suit has been\r\ndismissed, are parties to the suit. The\r\nopportuni ty to ob ject to executability of the\r\ndecree could be taken only once and\r\nrepeated applications appear to be\r\nunwarranted……………. .</span><span style=\"font-size: 12pt;\">&nbsp;</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>56. Therefore the application filed by the\r\nsociety under section 47 of CPC was rightly&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dismissed and I do not find any infirmity in the\r\norder.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>58. Annexure-R4 is a copy of the letter\r\naddressed to the purchaser Prabhakar bringing to\r\nhis notice that the reference petitions filed by the\r\nland owners had been allowed and the\r\ncompensation had been enhanced, and therefore\r\nhe was directed to deposit the excess sale\r\nconsideration that he was supposed to pay in\r\nproportion to the dimension of his site or the plot\r\nand get the katha registered.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>59. The reason for referring to Annexures-R3\r\nand R4 is to demonstrate the conduct of the\r\nsociety in avoiding to make payment of the\r\ncompensation amount determined by the court.\r\nThough the award was passed by the court on\r\n19.1 .2005, till now it appears that the land owners&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">are not paid money that they are entitled to.\r\nMoreover in W.P.Nos.14478-14483/2017 the order\r\nof which is produced at Annexure-R14, while\r\nsustaining the stay of the execution as it a ffected\r\nthe interest of one Muralidhar who was the plaintiff\r\nin O.S.29/2016, it was directed that the rest of the\r\nexecution proceeding should go on expeditiously.\r\nThe original land owners died and now they are\r\nrepresented by their legal representatives.\r\nDespite the fact that society was a party in\r\nW.P.Nos.14478-14483/2017, yet W.P.Nos.\r\n24106/2022 and 24169/2022 are filed seeking to\r\nterminate the execution proceedings. Therefore all\r\nthese aspects clearly indicate the intention of the\r\nsociety to defeat the awards. This being the\r\nconduct of the society, if costs are not imposed it\r\nis nothing but travesty of justice.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">60. In view of the above discussion, I come\r\nto conclusion that all the four writ petitions are&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">devoid of merits. For any reason execution\r\nproceedings cannot be terminated. The reliefs\r\nsought for by the society cannot be granted.\r\nTherefore all the writ petitions are to be dismissed\r\nwith costs of Rs .1,50,000/- each.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n(i) All the writ petitions are dismissed\r\nwith costs of Rs.1 ,50 ,000/- each.&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '58bb314ba4759c4fb8707283e2fef31b.JPG', 'd50cc127075d6792f06f8a65a4c61f3a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-28', 1, '', '', '2023-07-27 13:18:13', '2023-07-28 12:13:36');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3253, 'lJQquabmdUW4ADWBKwSiv3LhN', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transportation of diesel for sale in tanker without invoice cannot constitute the offence of “negligent conduct with respect to fire or combustible matter” under Section 285 IPC. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sadiq Pasha Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 4507 of 2023 decided on 19 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court calling in question\r\nregistration of a crime in Crime No.137 of 2022 registered for\r\noffences punishable under Section 285 of the IPC, Section 7 of\r\nthe Essential Commodities Act, 1955 (‘the Act’ for short) and\r\nClause 3 of the Motor Spirit and high Speed Diesel (Regulation\r\nof Supply, Distribution and Prevention of Malpractices) Order,\r\n1998 (‘the Motor Spirit Order’ for short), wrongly mentioned as\r\nPetroleum Rules, 2002 in the FIR pending before the Additional\r\nCivil Judge (Junior Division) and JMFC, Mulbagal, Kolar District.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">7. The afore-narrated facts are not in dispute. The\r\nincident is the one narrated hereinabove, which is seizure of a\r\ndiesel tanker, which belong to SWS & Sons Petrol Bunk of the\r\npetitioner. The tanker is intercepted by the Police SubInspector and made over to the Station House Officer, Mulbagal\r\nPolice Station on its seizure and report of such seizure. The\r\nreport becomes a crime in Crime No.137 of 2022 for offences </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">punishable under Section 285 of the IPC, Section 7 of the Act\r\nand Clause 3 of the Motor Spirit Order.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. Section 285 of the IPC reads as follows:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“285. Negligent conduct with respect to\r\nfire or combustible matter.—Whoever does,\r\nwith fire or any combustible matter, any act so\r\nrashly or negligently as to endanger human\r\nlife, or to be likely to cause hurt or injury to\r\nany other person, or knowingly or negligently\r\nomits to take such order with any fire or any\r\ncombustible matter in his possession as is\r\nsufficient to guard against any probable\r\ndanger to human life from such fire or\r\ncombustible matter, shall be punished with\r\nimprisonment of either description for a term which\r\nmay extend to six months, or with fine which may\r\nextend to one thousand rupees, or with both.” </i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Section 285 of the IPC deals with negligent conduct with\r\nrespect to fire or combustible matter. It mandates that\r\nwhoever by rash or negligent act would endanger human life\r\nplaying with fire or combustible matter is likely to cause hurt or\r\ninjury to any person. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The other provision is Section 7 of the\r\nAct. Section 7 of the Act reads as follows:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“7. Penalties.—(1) If any person\r\ncontravenes any order made under Section\r\n3,— </i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(a) he shall be punishable,—\r\n(i) in the case of an order made with\r\nreference to clause (h) or clause (i) of\r\nsub-section (2) of that section, with\r\nimprisonment for a term which may\r\nextend to one year and shall also be\r\nliable to fine, and\r\n(ii) in the case of any other order, with\r\nimprisonment for a term shall not be less than\r\nthree months but which may extend to seven\r\nyears and shall also be liable to fine:\r\nProvided that the court may, for any\r\nadequate and special reasons to be mentioned\r\nin the judgment, impose a sentence of\r\nimprisonment for a term of less than three\r\nmonths.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>\r\n(b) any property in respect of which the order has\r\nbeen contravened shall be forfeited to the\r\nGovernment;</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(c) any packing, covering or receptacle in which\r\nthe property is found and any animal, vehicle,\r\nvessel or other conveyance used in carrying\r\nthe property shall, if the court so orders, be\r\nforfeited to the Government.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n(2) If any person, to whom a direction is\r\ngiven under clause (b) of sub-section (4) of\r\nSection 3, fails to comply with the direction, he\r\nshall be punishable with imprisonment for a\r\nterm which shall not be less than three months\r\nbut which may extend to seven years and shall\r\nalso be liable to fine:</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><i>Provided that the court may, for any adequate\r\nand special reasons to be mentioned in the\r\njudgment, impose a sentence of imprisonment for a\r\nterm of less than three months.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><i>(2-A) If any person convicted of an offence\r\nunder sub-clause (ii) of clause (a) of sub-section (1)\r\nor under sub-section (2) is again convicted of an\r\noffence under the same provision, he shall be\r\npunishable with imprisonment for the second and\r\nfor every subsequent offence for a term which shall\r\nnot be less than six months but which may extend\r\nto seven years and shall also be liable to fine:\r\nProvided that the court may, for any adequate\r\nand special reasons to be mentioned in the\r\njudgment, impose a sentence of imprisonment for a\r\nterm of less than six months.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><i>(2-B) For the purposes of sub-sections (1),\r\n(2) and (2-A), the fact that an offence under subclause (ii) of clause (a) of sub-section (1) or under\r\nsub-section (2) has caused no substantial harm to\r\nthe general public or to any individual shall be an\r\nadequate and special reason for awarding a\r\nsentence of imprisonment for a term of less than\r\nthree months or six months, as the case may be.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-size: 12pt;\">\r\n(3) Where a person having been convicted of\r\nan offence under sub-section (1) is again convicted\r\nof an offence under that sub-section for\r\ncontravention of an order in respect of an essential\r\ncommodity, the Court by which such person is\r\nconvicted shall, in addition to any penalty which\r\nmay be imposed on him under that sub-section, by\r\norder, direct that that person shall not carry on any\r\nbusiness in that essential commodity for such\r\nperiod, not being less than six months, as may be\r\nspecified by the Court in the order.” </span><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Section 7 of the Act deals with punishment for\r\ncontravention of Section 3 of the Act. Therefore, it is necessary\r\nto notice Section 3 of the Act. Section 3 of the Act, reads as\r\nfollows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n“3. Powers to control production, supply,\r\ndistribution, etc., of essential commodities.—\r\n(1) If the Central Government is of opinion\r\nthat it is necessary or expedient so to do for\r\nmaintaining or increasing supplies of any\r\nessential commodity or for securing their\r\nequitable distribution and availability at fair\r\nprices or for securing any essential commodity\r\nfor the defence of India or the efficient\r\nconduct of military operations, it may, by\r\norder, provide for regulating or prohibiting the\r\nproduction, supply and distribution thereof\r\nand trade and commerce therein.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>2) Without prejudice to the generality of\r\nthe powers conferred by sub-section (1), an\r\norder made thereunder may provide—</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>(f) for requiring any person holding in stock,\r\nor engaged in the production, or in the\r\nbusiness of buying or selling, of any\r\nessential commodity,—</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>(a) to sell the whole or a specified part\r\nof the quantity held in stock or\r\nproduced or received by him, or</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n(b) in the case of any such commodity\r\nwhich is likely to be produced or\r\nreceived by him, to sell the whole or\r\na specified part of such commodity\r\nwhen produced or received by him,\r\nto the Central Government or a State\r\nGovernment or to an officer or agent of\r\nsuch Government or to a Corporation\r\nowned or controlled by such Government\r\nor to such other person or class of\r\npersons and in such circumstances as\r\nmay be specified in the order. </i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">Section 3 of the Act deals with powers to control production,\r\nsupply and distribution of essential commodities. The provision\r\nmandates that control production, supply or even distribution of\r\nessential commodities should be by way of a notification issued\r\nby the Central Government and in respect of a State by the\r\nState Government. The 3rd provision is notification issued\r\nunder Clause 3 of the Motor Spirit Order. The aforesaid order\r\nis issued in exercise of powers conferred by Section 3 of the Act\r\nby the Ministry of Petroleum and Natural Gas, Government of\r\nIndia. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Clause 7 of the Motor Spirit Order deals with power of\r\nsearch and seizure and reads as follows:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i> “7. Power of search and seizure-</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n(1) Any Gazetted Officer of the Central\r\nGovernment or a State Government or any\r\npolice officer not below the rank of Deputy\r\nSuperintendent of Police duly authorized, by\r\ngeneral or special order of the Central\r\nGovernment or a State Government, as the</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">case may be, or any officer of the oil company,\r\nnot below the rank of sales officer, may, with a\r\nview to securing compliance with the\r\nprovisions of this Order, or for the purpose of\r\nsatisfying himself that this Order or any order\r\nmade hereunder has been complied with or\r\nthere is reason to believe that all or any of the\r\nprovisions of this Order have been and are\r\nbeing or are about to be contravened.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. The other offence alleged is of Section 7 of the Act.\r\nSection 7 of the Act directs penalty against any person who\r\nwould contravene Section 3 of the Act. Section 3 supra\r\nmandates that control production, supply and distribution of\r\nessential commodities shall be by way of notification issued by\r\nthe State Government. The notification is to be issued with\r\nregard to maximum permissible limit of carrying essential\r\ncommodity inter alia under the Act. The seizure is of diesel. It\r\nis an admitted fact that no notification is issued by the State\r\nGovernment depicting maximum quantity of diesel, inter alia\r\nthat can be carried or it is brought within the purview of any <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">notification issued by the State Government. In the absence of\r\nany notification, proceedings or offences punishable under\r\nSection 7 of the Act cannot be laid. The Apex Court in the case\r\nof PRAKASH BABU RAGHUVANSH v. STATE OF M.P. has\r\nheld as follows:</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>“4.... <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">That being so, it was\r\nnecessary for the prosecution to place on\r\nrecord the “order” which, according to it, was\r\nthe foundation for taking action against the\r\naccused-appellant.</span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>6.... <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The parties shall be permitted to place\r\nmaterials in support of their respective stands.\r\nIt would be incumbent upon the State to file\r\nmaterials to show as to which “order” was\r\nviolated. If the document in question is placed\r\nbefore the High Court, it goes without saying\r\nthat the issue shall be examined with\r\nreference thereto and necessary adjudication\r\nshall be done.\"</span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Apex Court holds Section 7 of the Act refers to\r\ncontravention of any order made under Section 3 of the Act.\r\nTherefore, it is essential for bringing in application of Section 7\r\nto show that some order has been made under Section 3 and\r\nthe order has been contravened. The Apex Court further\r\nobserves that Section 2(c) would mean a “notified order”\r\nnotified in the Official Gazette or Section 2(cc), an order that\r\nincludes a direction issued. If the aforesaid facts are\r\nconsidered on the bedrock of what is laid down by the Apex\r\nCourt, what would unmistakably emerge is, unsustainability of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the said provision that has been laid against the petitioner as\r\nthere is neither an order nor a notification published in the\r\nOfficial Gazette by the State Government to allege offence\r\nunder Section 7 of the Act. Therefore, this would form the\r\nsecond rung illegality.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. The other provision is Section 285 of the IPC. Section\r\n285 of the IPC (supra) mandates rash or negligent act by any\r\nperson so as to endanger human life, while dealing with fire or\r\ncombustible matter knowingly or unknowingly. The Apex Court\r\nin the case of GURUKANWARPAL KIRPAL SINGH v. SURYA\r\nPRAKASAM , has held as follows: <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\"The act of recycling plastic\r\nwaste material or supply of plastic waste\r\nmaterial for recycling by the petitioner No.2\r\ncould not be said to be an act done with fire or\r\nany combustible matter.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>The act of the respondents of supplying\r\nmaterial for testing and the recycling plant <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">could not be said to be a negligent or rash act\r\ndone to endanger human life. Thus, the\r\nessential ingredients of the offence were\r\nabsent.\"</span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">The Apex Court affirms the findings of the High Court qua\r\nSection 285 of the IPC holding that the accused must have\r\ndone something with fire or any combustible matter in a rash or\r\nnegligent manner to endanger human life. The petitioner is not\r\nalleged to have done any such act or the driver of the lorry of\r\nthe petitioner. The allegation is that, diesel was being\r\ntransported in the diesel tanker for sale without invoice. This\r\ncan hardly become an ingredient of the offence punishable\r\nunder Section 285 of the IPC. Therefore, this becomes a fit\r\ncase for exercise of jurisdiction of this Court under Section 482\r\nof the Cr.P.C. to obliterate the crime at the stage of FIR itself, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in tune with the postulates laid down by the Apex Court in the\r\ncase of STATE OF HARYANA v. BHAJANLAL as follows:</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>(1) Where the allegations made in the first\r\ninformation report or the complaint, even\r\nif they are taken at their face value and\r\naccepted in their entirety do not prima\r\nfacie constitute any offence or make out\r\na case against the accused.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>(5) Where the allegations made in the FIR or\r\ncomplaint are so absurd and inherently\r\nimprobable on the basis of which no\r\nprudent person can ever reach a just\r\nconclusion that there is sufficient ground\r\nfor proceeding against the accused.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">In the light of the aforesaid reasons and the judgments of\r\nthe Apex Court quoted supra, if further investigation is </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">permitted to continue, it would become an abuse of the process\r\nof law and result in miscarriage of justice.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> (i) Criminal Petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3d0a4042fad6471a4b26d556efa8eccb.jpeg', '335c2566a77d6e6aec8c1b2e8ec50b15.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-29', 1, '', '', '2023-07-27 13:34:30', '2023-07-29 03:18:17'),
(3254, 'zoZHyzNbTULTYUR531DQjn0nJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Transferor cannot prejudice the rights of the transferee by subsequent dealing with the property. If there are successive transfers of the same property, the later transfer is subject to the prior transfer. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>R. Praveen Vs Mariyappa Thr LRS and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 2423 of 2010 decided on 11 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Shivashankar Amarannavar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. The plaintiff has filed a suit for the reliefs of\r\npermanent Injunction restraining the defendants from </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">interfering with possession of the plaintiff over the suit\r\nschedule property. It is the case of the plaintiff before\r\nthe Trial Court that he is a absolute owner for having\r\npurchased the suit schedule property from\r\nSmt.V.Jayalakshmi under registered sale deed dated\r\n7.4.1998 and he is in possession of the same. It is stated\r\nthat originally suit schedule property belongs to defendant\r\nNo.1, he has executed GPA in favour of Smt.V.Jayalakshmi\r\nauthorizing her deal with the property. The katha of the\r\nsuit schedule property was in the name of defendant No.1\r\nand he authorized Smt.V.Jayalakshmi to deal with the\r\nproperty on the basis of GPA. As the original sale deed\r\nwas not returned by the Sub-Registrar’s office, the plaintiff\r\ncould not get katha transferred in his name in the\r\npanchayath records. It is stated that defendant No.1 has\r\nno right over the suit schedule property and he is making\r\nefforts to sell the suit schedule property to the third\r\nparties. It is stated that the plaintiff has put up barbed\r\nfencing to the suit schedule property. As defendants\r\nstarted interfering with his possession and trying to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">emove the barbed wire fencing, the plaintiff has filed the\r\nsuit.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5. The defendant No.1 and 2 has filed written\r\nstatement contending that the plaintiff has no right, title\r\nand interest over the suit schedule property.\r\nSmt.V.Jayalakshmi has no right over the suit schedule\r\nproperty and to convey the said property in favour of the\r\nplaintiff. The sale deed dated 7.4.1998 is created\r\ndocument in order to knock off the property belonging to\r\ndefendant No.1. It is stated that defendant No.1 has not\r\nexecuted any document in favour of Smt.V.Jayalakshmi.\r\nThe authorities have no rights under law to effect changes\r\nin the demand register extract. The GPA and affidavit\r\nproduced by the plaintiff are created documents, the\r\nalleged sale deed has been executed by\r\nSmt.V.Jayalakshmi the mother of the plaintiff and\r\ntherefore does not confer title on the plaintiff in respect of\r\nsuit schedule property. It is stated that defendant No.1 is\r\nabsolute owner of the property and he has conveyed the\r\nsaid property in favour of defendant No.2 through</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">registered sale deed dated 28.4.1998. The defendant\r\nNo.2 is in possession and enjoyment of the suit schedule\r\nproperty and the plaintiff is not in possession of the suit\r\nschedule property. It is stated that the defendant No.1\r\nwas absolute owner of the suit schedule property since the\r\ndate of grant made by the Government in his favour by\r\nissuing “Hakku Patra” in the year 1972. All the revenue\r\nrecords were standing in the name of defendant No.1.\r\nThe Khatha of the suit schedule property has been\r\nchanged in the name of defendant No.2, with this they\r\nprayed to dismiss the suit.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. On the basis of the above pleading, the trial\r\nCourt has framed the following issues;\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>1. Whether the plaintiff proves his lawful possession\r\nover the suit schedule property?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. Whether the plaintiff proves the alleged\r\ninterference by the defendants?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. To what order or decree?<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Aggrieved by the judgment and decree passed\r\nby the trial Court, the plaintiff filed appeal in\r\nRA No.48/2008 before the presiding officer Fast Track\r\nCourt-V, Bangalore Rural District, Bangalore (First\r\nAppellate Court). The First Appellate Court after hearing\r\nthe arguments on both sides has formulated the following\r\npoints for consideration;\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>1. Whether the appellant proves that the judgment\r\nand decree passed by the trial Court is perverse,\r\narbitrary and this court’s interference is\r\nnecessary?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>2. What Order? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. The First Appellate Court answered point No.1\r\nin the negative and dismissed the appeal confirming the\r\njudgment and decree passed by the trial Court. The\r\nplaintiff has challenged judgement and decree passed by\r\ntrial Court and First Appellate Court in this second appeal.\r\nThe Second appeal came to be admitted to considered the\r\nsubstantial question of law:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“Whether the doctrine of priority of rights created\r\nby transfer, operates in the matter against 2nd\r\ndefendant”. </i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. It is the case of the plaintiff that the defendant\r\nNo.1 is the owner of the suit schedule property. In the\r\nwritten statement defendants No.1 and 2 have admitted\r\nthat the defendant No.1 is the owner of the suit schedule\r\nproperty. The plaintiff claims title and possession of the\r\nsuit schedule property on the basis of sale deed (Ex.P.4)\r\ndated 7.4.1998. The said sale deed (Ex.P.4) has been\r\nexecuted by the Smt.V.Jayalakshmi as a GPA holder of the\r\ndefendant No.1. The said GPA i.e., Ex.P.2 is dated\r\n14.6.1994. The Ex.P.3 is a affidavit sworn to by defendant\r\nNo.1 and his daughter-Manjula dated 14.6.1994 (Ex.P.3) <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">where under the defendant No.1 and his daughter have\r\nhanded over the possession of the suit schedule property\r\nto Smt.V.Jayalakshmi-GPA holder. The defendant No.1 in\r\nhis written statement has denied the execution of GPA in\r\nfavour of Smt.V.Jayalakshmi. The original GPA is\r\nproduced at Ex.P.2, under the said GPA (Ex.P.2) an\r\nauthority has been given to the GPA holderSmt.V.Jayalakshmi to sell the property. The said GPA is\r\nexecuted before and authenticated by notary public. The\r\ndefendant No.1 who disputed the execution of GPA\r\n(Ex.P.2) did not choose to enter the witness box to prove\r\nthe said contention. There is presumption as to power of\r\nattorney under Section 85 of the Indian Evidence Act,\r\n1872 which reads thus;\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">85. Presumption as to powers-of-attorney.—The\r\nCourt shall presume that every document purporting\r\nto be a power-of-attorney, and to have been\r\nexecuted before, and authenticated by, a Notary\r\nPublic, or any Court, Judge, Magistrate, Indian\r\nConsul or Vice-Consul, or representative of the\r\nCentral Government, was so executed and\r\nauthenticated.</span><span style=\"font-size: 12pt;\"> </span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. There is a presumption that possession goes\r\nwith the title. Same has been considered by this Court in\r\nthe case of The Banashankari Temple through Vithal\r\nRao Vs. Viswanath and another reported in ILR 1983\r\nKar. 81 wherein it is held as under:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n5. In a case like this what should be the\r\ninference? Parties in whose favour is a prima\r\nfacie title, will have to win though this is not a\r\nsuit claiming any declaration of title. It is on\r\nrecord that the temple’s name is shown as the\r\nkhathedar in respect of this area in the village\r\npanchayat records. This, in the circumstances,\r\nis prima facie evidence of its title. The\r\npresumption that possession goes with title\r\napplies to a case like this where neither party\r\nhas been able to prove or establish <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">possession, but one of the parties is able to\r\nshow its title.\r\n</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20. The plaintiff has established his title over the\r\nsuit schedule property. Therefore, the presumption arises\r\nthat possession follows title.</span><span style=\"font-size: 12pt;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. Defendant Nos.1 and 2 claimed that defendant\r\nNo. 1 executed sale deed in favour of defendant No. 2\r\nalienating the suit schedule property on 28.04.1998. Said\r\nsale deed dated 28.04.1998 is not produced. Even if for\r\nthe sake of argument it is taken that defendant No.1 has\r\nexecuted sale deed in favour of defendant No.2 on\r\n28.04.1998, defendant No. 1 was not possessing title over\r\nthe suit schedule property as already his GPA holder Smt.\r\nV. Jayalakshmi had sold the suit schedule property under\r\nsale deed dated 07.04.1998 (Ex.P.4) in favour of the\r\nplaintiff. Sale deed executed in favour of the plaintiff dated\r\n07.04.1998 (Ex.P.4) is prior in time than the alleged sale\r\ndeed dated 28.04.1998 said to have been executed by\r\ndefendant No.1 in favour of defendant No. 2.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. Section 48 of Transfer of Property Act deals\r\nwith priority of rights created by transfer which reads\r\nthus:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>48. Priority of rights created by\r\ntransfer .—Where a person purports to create\r\nby transfer at different times rights in or over\r\nthe same immoveable property, and such\r\nrights cannot all exist or be exercised to their\r\nfull extent together, each later created right\r\nshall, in the absence of a special contract or\r\nreservation binding the earlier transferees, be\r\nsubject to the rights previously created.<br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. Transfer cannot prejudice the rights of the\r\ntransferee by any subsequent dealing with the property. If\r\nthere are successive transfers of the same property, the\r\nlater transfer is subject to the prior transfer. Transfer of\r\ntitle made under sale deed Ex.P.4 dated 07.04.1998 is\r\nprior to the sale deed dated 28.04.1998 alleged to have\r\nbeen executed by defendant No. 1 in favour of defendant\r\nNo. 2. Therefore, defendant No. 1 cannot prejudice the </b><b style=\"font-size: 12pt;\">rights of plaintiff by subsequent execution of the sale deed\r\nin respect of same property.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. Defendant Nos.1 and 2 even though denied the\r\nexecution of GPA (Ex.P.2), affidavit (Ex.P.3) and sale deed\r\n(Ex.P.4) in their written statement, they did not choose to\r\nenter the witness box. Under the circumstances a\r\npresumption arises that the case set up by the defendants\r\nis not correct. Same has been considered by the Hon’ble\r\nApex Court in the case of Vidhyadhar Vs. Manikrao and\r\nanother reported in 1999 (3) SCC 573 wherein it is held\r\nas under:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i> 17. Where a party to the suit does not\r\nappear in the witness-box and states his own\r\ncase on oath and does not offer himself to be\r\ncross-examined by the other side, a\r\npresumption would arise that the case set up\r\nby him is not correct as has been held in a\r\nseries of decisions passed by various High\r\nCourts and the Privy Council beginning from the\r\ndecision in Sardar Gurbakhsh Singh Vs. Gurdial\r\nSingh. This was followed by the Lahore High\r\nCourt in Kirpa Singh Vs. Ajaipal Singh and the\r\nBombay High Court in Martand Pandharinath <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Chaudhari Vs. Radhabai Krishnarao Deshmukh.\r\nThe Madhya Pradesh High Court in Gulla\r\nKharagjit Carpenter Vs. Narsingh Nandkishore\r\nRawat also followed the Privy Council decision\r\nin Sardar Gurbhakhsh Singh case. The\r\nAllahabad High Court in Arjun Singh Vs.\r\nVirendra Nath held that if a party abstains from\r\nentering the witness-box, it would give rise to\r\nan adverse inference against him. Similarly, a\r\nDivision Bench of the Punjab and Haryana High\r\nCourt in Bhagwan Dass Vs. Bhishan Chand drew\r\na presumption under Section 114 of the\r\nEvidence Act, 1872 against a party who did not\r\nenter the witness-box.</span></i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. Learned counsel for respondent argued that the\r\nplaintiff has not sought the relief of declaration and suit is\r\nfiled for bare injunction and as title of the plaintiff is\r\ndisputed by the defendants the suit is not maintainable. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The Hon’ble Apex Court considered the said aspect in the\r\ncase of Ramji Rai and another Vs. Jagdish Mallah\r\n(Dead) through LRs and another reported in 2007\r\n(14) SCC 200 wherein it is held as under:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>\r\n10. On the finding of facts, we do not wish\r\nto interfere. There is no reason to reverse the\r\nconcurring findings. However, suffice it to state\r\nthat the lower appellate Court should have\r\ndismissed the suit filed by the appellants only\r\non the ground that the appellants had failed to\r\nprove that they were in possession of the\r\ndisputed lands. Under Section 38 of the Specific\r\nRelief Act, 1963 an injunction restraining\r\ndisturbance of possession will not be granted in\r\nfavour of the plaintiff who is not found to be in\r\npossession. In the case of a permanent\r\ninjunction based on protection of possessory\r\ntitle in which the plaintiff alleges that he is in\r\npossession, and that his possession is being\r\nthreatened by the defendant, the plaintiff is\r\nentitled to sue for mere injunction without\r\nadding a prayer for declaration of his rights.\r\n(See Mulla’s Indian Contract and Specific Relief\r\nActs, 12th Edn., p. 2815).</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">27. Suit of the plaintiff seeking relief of injunction is\r\nbased on possession and title. Therefore, there is no need\r\nfor the plaintiff to seek a prayer for declaration of his\r\nrights. He can maintain a suit for mere injunction without\r\nadding the prayer for declaration of his rights. Considering\r\nall these aspects the trial Court and the first appellate\r\nCourt have erred in appreciating the evidence on record.\r\nAccordingly, the substantive question of law is answered</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. Appeal is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '046c78702bd2ac12da428469001cf3d4.JPG', 'e1c30588aba6a0d9ab7d2b2da4ba68b6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-28', 1, '', '', '2023-07-27 14:24:08', '2023-07-28 08:13:54');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3255, 'PxZ7O6BgjAIkmR66RQHojtvML', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'An independent suit questioning the compromise decree is not maintainable. Parties must approach the very same Court if any fraud or misrepresentation is alleged while obtaining the compromise decree. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Muthanappa and others Vs Revanna and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 262 of 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This revision petition is filed challenging the order of\r\nrejection of the application filed under Order VII Rule\r\n11(d) of CPC in O.S.No.113/2020. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The main contention of the defendants in the\r\napplication before the Trial Court is that the suit is barred\r\nby law, there is no cause of action, the suit is bad for nonjoinder of necessary parties and without impleading all the\r\nproperties in the suit, they cannot seek the relief of\r\npartition. In support of the application, an affidavit is\r\nsworn to by defendant No.5 reiterating the fact that\r\nalready a suit was filed in O.S.No.24/2013 and parties </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">have appeared and filed compromise petition and\r\ncompromise decree also passed. It is also contended that\r\nin view of the said compromise decree, all the revenue\r\nentries were changed in the name of the parties and the\r\nparties have acted upon and now, they cannot file one\r\nmore suit seeking the relief of declaration to declare that\r\nthe compromise entered between the parties is not binding\r\non them on the ground that they are not the parties to the\r\nsuit when the mother of the plaintiffs is party to the said\r\ncompromise and same cannot be agitated and if any\r\ngrievance is having, they can approach the very same\r\nCourt where compromise was entered and not filing a\r\nseparate suit.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. The said application is resisted by the counsel\r\nfor the plaintiffs before the Trial Court by filing statement\r\nof objections contending that they are not the parties to\r\nthe compromise suit and also property is granted in favour\r\nof their father hence, the same is exclusive property of the\r\nfather, thus, the mother can’t give any consent to the said <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">compromise and hence, the said disputed fact has to be\r\nconsidered in a suit and not in an application filed under,\r\nOrder VII Rule 11 of CPC.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. The Trial Court having considered the grounds\r\nurged in the application and also in the statement of\r\nobjections, in paragraphs 7 taken note of the prayer\r\nsought in the suit and also in paragraph 8 held that the\r\nplaintiffs asserted that the suit schedule properties are the\r\nself-acquired properties of their father and after death of\r\ntheir father, they and their mother inherited same and\r\ntheir mother had no exclusive or specific right over the\r\nsame and hence, the compromise decree does not bind\r\nthem and is liable to be declared as null and void and\r\ncause of action for this suit arose during December 2019\r\nwhen defendant Nos.2 to 8 were negotiating with others\r\nfor sale of the suit schedule properties and hence, the\r\nrelief is sought for declaration. The contention that the\r\nsuit is not maintainable for partial partition and nonjoinder of necessary parties and the Trial Court having <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">taken note of the said fact into consideration comes to the\r\nconclusion that specifically explained with regard to cause\r\nof action for the suit and questions has to be decided only\r\nin the trial and issue of res-judicata would be mixed\r\nquestion of law and fact which is not a ground to reject the\r\nplaint under Order VII Rule 11 of CPC. Hence, the present\r\nrevision petition is filed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. The counsel in support of his argument relied\r\nupon the judgment reported in AIR 2022 SC 1031 in the\r\ncase of M/S SREE SURYA DEVELOPERS AND\r\nPROMOTERS vs N SAILESH PRASAD AND OTHERS\r\nwherein the Apex Court held that when an order has been\r\npassed under Order XXIII Rule 3 of CPC while\r\ncompromising the suit and the same is barred by law. The\r\nplaintiff has filed the suit challenging the compromise\r\ndecree and the Trial Court rejected the plaint under Order\r\nVII Rule 11(d) of CPC on the ground that the said suit\r\nwould not be maintainable in view of specific bar under\r\nOrder XXIII Rule 3(a) of CPC and against said order, an\r\nappeal filed before the High Court at the stage of deciding\r\nthe application filed under Order VII Rule 11, only thing\r\nwhich was required to be considered by High Court was\r\nwhether suit would be maintainable or not and that suit\r\nchallenging compromise decree would be maintainable or\r\nnot in view of Order XXIII Rule 3(a) of CPC and High Court\r\ndid not deal with said crucial aspect, rather High Court set\r\naside the order of the Trial Court rejecting plaint by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">entering into merits of validity of compromise decree on\r\nground that same was hit by Order XXXII Rule 7 and order\r\nof the High Court erroneous and liable to be set aside and\r\norder of the Trial Court restored. The counsel referring this\r\njudgment vehemently contend that the very judgment of\r\nthe Apex Court is aptly applicable to the case on hand.\r\n8. The counsel also relies upon the judgment of\r\nthe High Court of Punjab and Haryana reported in\r\nLAWS(P&H)-2008-3-51 in the case of MOORTI vs\r\nKAUR SINGH wherein also the Court held that the suit is\r\nnot maintainable questioning the compromise decree in\r\nview of the specific bar contained under Order XXIII Rule\r\n3(a) of CPC.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Having heard the learned counsel appearing for\r\nthe parties and also on perusal of the material on record\r\nas well as the grounds urged in the revision petition, the\r\npoint that would arise for the consideration of this Court\r\nthat:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Whether an independent suit can be filed when\r\nthere was a compromise and whether there is a\r\nbar under Order XXIII Rule 3(a) of CPC to file a\r\nseparate suit?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. Having heard the learned counsel appearing for\r\nthe parties and also on perusal of the material on record it\r\ndiscloses that the contention of the defendants before the\r\nTrial Court by filing an application under Order VII Rule 11\r\nof CPC is that there is no cause of action for the suit and\r\nthe same is barred by law and ought to have approached\r\nthe very same Court wherein compromise was entered\r\nbetween the parties instead of filing the separate suit. It\r\nis the contention of the revision petitioners that originally,\r\nthe property belongs to one Puttaiah and the same was\r\npurchased in the year 1958 and also it is the contention\r\nthat grant was made in favour of the first son of Puttaiah\r\nand after the death of Puttaiah, the property was\r\ntransferred to his wife and other sons of Puttaiah that is\r\nMuthanjappa and Anjanappa and the said Muthanjappa\r\nand Anjanappa have filed the suit in O.S.No.24/2013 and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in the said suit, there was a compromise and compromise\r\ndecree was drawn. The counsel also submits that FDP is\r\nalso filed and final decree also passed and in support of\r\nthe said contention, he has produced the document to\r\nshow that final decree is also drawn.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13. The question before the Court is whether a\r\nseparate suit is maintainable before the Court. In view of\r\nthe judgment of the Apex Court referred supra, there\r\ncannot be a separate independent suit by questioning the\r\njudgment and decree drawn based on the compromise\r\nentered between the parties and they can approach the\r\nvery same Court if any fraud or misrepresentation is\r\nalleged while obtaining the order of compromise decree.\r\nAdmittedly, the mother of the plaintiff also a party to the\r\ncompromise decree. It is the contention of the counsel for\r\nthe respondents that compromise was entered within a\r\nspan of 1½ months from filing of the suit and also the\r\ndispute in respect of the very same property. The\r\nquestion that whether grant was a independent grant or</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not has to be decided in a separate suit when the mother\r\nwas represented and entered into a compromise with the\r\nuncles of the plaintiffs and if any fraud or\r\nmisrepresentation in obtaining the compromise decree,\r\nthey can approach the very same Court questioning the\r\nsame and they cannot file a separate suit since there is a\r\nbar under Order XXIII Rule 3(a) of CPC. Whatever\r\nallegations are made with regard to compromise decree\r\nwhich was entered between the mother and uncles of the\r\nplaintiffs, the same has to be agitated in the said suit and\r\nhence, the same is barred by law under Order XXIII Rule\r\n3(a) of CPC and they have to approach the very same\r\nCourt to seek for an appropriate order. The Trial Court\r\nfailed to take note the said contention since already there\r\nwas a compromise decree in O.S.No.24/2013 and same\r\ncannot be challenged in a separate suit. Hence, I do not\r\nfind any force in the contention of the respondents’\r\ncounsel. In the judgment relied upon by the counsel for\r\nthe respondents in CRP No.397/2019 referred supra, the\r\nfacts are different wherein the specific allegation was </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">made in the plaint with regard to creation of documents\r\nbut in the case on hand, already there was a compromise\r\nbetween the mother and uncles of the plaintiffs and the\r\nsame has to be questioned in the very same suit in which\r\ncompromise was entered between the parties. Hence,\r\nthere is a force in the contention of the petitioners’ counsel\r\nthat there is a bar under Order XXIII Rule 3(a) of CPC to\r\nchallenge the compromise decree.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The revision petition is allowed and consequently, the\r\napplication filed under Order VII Rule 11(d) of CPC is also\r\nallowed and plaint is rejected and the plaintiffs are given\r\nliberty to approach the very same Court where\r\ncompromise decree was passed in a suit filed in\r\nO.S.No.24/2013. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '4830960b6d498b6d73fb0332f5caa8ba.JPG', 'd26192189890f8ca1cb87ac1a6ab7001.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-28', 1, '', '', '2023-07-27 15:07:12', '2023-07-28 10:31:00');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3256, 'wPnomK4eHgGtpTveKZ1wOEtzM', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Decree granted in a time barred suit can be executed. Such a decree though illegal, is certainly not without jurisdiction. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Madhuvana House Building Vs Spl LAO and Assistant Commissioner and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 24028 of 2022 decided on 21 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioner in all these writ petitions is Madhuvana House Building Co-operative Society, Mysuru (‘society’ for short). Persons, namely, 1) B.Mahadevappa, 2) Nanjappa and 3) Mallikarjunappa who are now deceased and represented by their legal representatives, are referred to as land owners for the sake of convenience. The material facts as stated by the society are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. On 24.02.1990, the Special Deputy Commissioner, Mysuru issued a notification under section 4(1) o f the Land Acquisition Act, 1894 (‘Act’ for short) proposing to acquire 72 acres 12&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">guntas of land for the benefit of society. The notification was gazetted on 09.03.1990. Final notification under section 6 of the Act was gazetted on 04.04.1991 and the award was passed on 08.04.1993. It is stated that notice of award required to be given to the land owners under section 12(2) of the Act was served on the owners of land in Sy.Nos.25/1, 25/2 and 11 of Satenahalli on 08.09.1995. The land owners who were not satisfied with the award were supposed to have made an application to the acquiring authority within 90 days from the date of service o f notice under section 12(2) o f the Act. Since the notice was served on 08.09.1995, the land owners should have sought reference on or before expiry of 90th day i.e., 08 .12.1995. But they submitted the application on 19.06.1997, more than two years after service of notice under section 12(2). The application was highly time barred. When the&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">acquiring authority did not make reference to the Civil Court, the land owners approached the Civil Court with applications under section 18(3)(b) of the Act on 15.07.1998 and in those applications they stated that they received the award amount on 28.04.1997, but did not mention the date on which the notice under section 12(2) of the Act was served on each o f them. The applications under section 18(3)(b) were registered as LAC Nos. 422/1998, 423/1998 and 424/1998 and in all these applications the land owners impleaded the Assistant Commissioner and Land Acquisition Officer, Mysuru Sub-Division as the respondent, but did not implead the society as respondent No.2. Though the State i.e., the Land Acquisition Officer contested the applications under section 18(3)(b) on the ground of delay in seeking reference, on 24.11.2004 an Ex-Government Pleader filed memos in the court stating that the&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">claimants received the award amount on 28.04.1997 and their applications filed on 19.06.1997 were within time and prayed for allowing the applications made under section 18(3)(b). The Principal Civil Judge, Mysuru, accepted the memos and finding that the cause of action for the applications arose on 28 .04.1997, allowed them and directed the acquiring authority to make reference as sought by the land owners. The contention of the society is that the hearing date fixed by the court was actually 08 .12.2004, the applications had not been listed before the court on 24.11.2004 and therefore an unauthorized person filed memos in the court for allowing the applications.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>5. In the meanwhile , the land owners filed execution petitions against the Special Land Acquisition Officer and the society, and sought attachment of the money deposited in the State Huzur Treasury. In the execution petitions, the Special Land Acquisition Of ficer objected to the execution by submitting that former Government Pleader had unauthorisedly filed the memos dated 24.11.2004 and therefore the reference&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">applications which were barred by time did not clothe the Civil Court with jurisdiction to pass awards under section 23. The executing court rejected the ob jections. Some of the allottees of the society approached the High Court challenging the order of rejection of objections by filing a writ petition which was allowed by the learned Single Judge of this Court and the said order was questioned in a writ appeal although it was not maintainable. But the writ appeal was allowed on the sole ground that the allottees had no locusstandi to prefer writ petition. Then the society filed W.P.No.16273/2021 which was allowed on 06.09.2021 directing the executing court to consider the additional ob jection statement of the society in regard to want of jurisdiction of the executing court. The society filed detailed objections in the form o f application under section 47 CPC pleading incurable defect in seeking&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reference, default in making the society a party in the application for reference and fraud played by getting filed unauthorised memos for the purpose of allowing the applications. The decree holders i.e., the land owners did not file ob jections to the application under section 47 CPC. The court passed an order on 17.11.2022 rejecting the application with an observation that similar objections had been decided already. Hence, these writ petitions.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. Sri S.P.Shankar, learned Senior Counsel, addressed argument in all the writ petitions on behalf o f Smt. Mamata Gururao Kulkarni, learned counsel for the society. Learned counsel Smt. Sona Vakkund, argued for the legal representatives of the land owners and Sri V Shivareddy, learned High Court Government Pleader, appeared on behalf of State . Smt. Mamata Gururao Kulkarni and Smt. Sona Vakkund filed synopsis of their arguments besides relying on a number of rulings&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which will be referred to in the course of discussion; and from the points that they canvassed, the following points emanate for discussion :</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(i) Was the society being a beneficiary a necessary or a proper party in the proceeding under section 18(3)(b) of the Act?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(ii) Could the issue of lack of jurisdiction with reference to limitation be raised in the execution proceeding under section 47 of Code of Civil Procedure?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(iii)Assuming that W.A.Nos. 17183-17186/2011 and connected appeals were not maintainable in view of law declared by full bench of this court in the case o f Tammanna AND OTHERS vs M iss. RENUKA AND OTHERS (ILR 2009 Kar 1207) as argued by Sri. S.P.Shankar,&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">whether the order in W.P.No. 41455/2010 and connected matters has any bearing on executabity of awards?</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(iv)Were the land owners estopped from seeking reference as they received the compensation without protest?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>(v) Is the society estopped from urging the issues pertaining to non-impleadment of society in the proceeding under section 18(3)(b) of the Act, and the issues relating to limitation and fraud in the writ jurisdiction in view of dismissal o f MFAs and withdrawal of W.P.Nos. 153-155/2010 filed by the society challenging the awards of the Civil Court passed in reference proceedings?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(vi)Whether writ petitions deserve to be allowed? What is the order to be passed?</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No. (i)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. The argument thus advanced requires me to make clear the meaning of reference proceeding and deal with scope of sections 20 and 50 of the Act, before answering the point under discussion. In terms of section 18 (1), the land owner can make an application to the Deputy Commissioner to refer the matter to the court in case he is not satisfied with the award, and if the Deputy Commissioner does not refer within the time prescribed, the land owner can approach the Civil Court making an application under section 18 (3)(b) seeking a direction to the Deputy Commissioner to refer the matter. This is a right available to the land owner. Once the Deputy Commissioner makes a reference, according to section 20 of the Act the court has to issue notice to (i) the applicant i.e., the land owner, (ii) all persons interested in the ob jection except such (if any) o f them as have consented without protest to&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">receive payment of the compensation awarded and (iii) if the ob jection is in regard to the area of the land or to the amount of compensation, the Collector i.e., the Deputy Commissioner . The word ‘objection’ in other words is the application that the land owner makes to the Deputy Commissioner for seeking reference. After issuance of notice as contemplated in Section 20, the court proceeds to determine the compensation having regard to guidelines prescribed in sections 23 and 24 of the Act and passes award according to section 26. Therefore it becomes clear that the meaning of ‘Reference Proceeding’ is that proceeding which takes place before the court after the Deputy Commissioner refers the matter to the court for passing an award according to section 26 o f the Act; any proceeding for consideration of an application made either under section 18(1) or 18(3)(b) of the Act, is not a reference proceeding;&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">it is just a proceeding to decide whether matter is to be sent to court or not for the purpose of determining the compensation. The Deputy Commissioner cannot deny to make reference to the court, and at the stage of making reference on an application made before him under section 18 (1) all that he has to ascertain is whether the application has been made within time. And during the proceedings under section 18(3) (b) before the court, the Deputy Commissioner may bring it to the notice of court that no application had been made to him under section 18 (1), or if the application had been filed, it was time barred and hence he cannot be directed to make reference. The enquiry at this stage is very limited to this extent; neither the Deputy Commissioner nor the court proceeds to determine the compensation at the stage of making reference. For this reason participation of the beneficiary at pre-reference&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">stage is not at all necessary; beneficiary need not be heard on the application made for seeking reference. Presence of the beneficiary is necessary only when the court holds or conducts enquiry for determining the compensation amount for passing award under section 26 o f the Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. In the case on hand, the society was a party before the court in the reference proceeding&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for determination of compensation. It did participate and cross examine the land owners; this is undisputed fact. That means society was heard before enhancing the compensation. I f it had not been made a party in the proceeding before the court on an application under section 18(3)(b) of the Act, it cannot be made a ground to stall the execution proceedings. The presence of beneficiary at the stage of making reference is not at all necessary as at that stage no decision as to determination of compensation is taken. Therefore point (i) is answered in negative.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(ii) :&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. Before answering this point, it may be noted here that the society, when it participated before the court in the reference proceeding (i.e., for determination of compensation), did not contend about the question of limitation. The&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cross examination of the land owner shows no question relating to limitation being put to him. It is not as though question of limitation cannot be urged in the proceeding before the court for determination o f compensation; it can be .</span><span style=\"font-size: 12pt;\">&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. In the case on hand, no doubt the society has produced copy of the notice issued to the land owners under section 12(2) of the Act. On the back of the notice , a signature and a thumb impression purportedly of land owners are there.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The service of notice is disputed by the land owners; whatever may be the contention of the land owners, if according to the society as also the acquiring authority, notices were duly served with copy of the award on the land owners nothing prevented them from contending about it before the court in the proceeding under section 18(3) (b) of the Act or in the reference proceeding. In these writ petitions a ground has been taken that an unauthorized person filed a memo conceding that reference was within time and the court should not have acted upon it. Sri. S.P.Shankar has relied on a judgment of the Supreme Court in the case of Kirti and Another Vs. Oriental Insurance Company Ltd., [(2021) 2 SCC 166] in which it is held that concession in law made in this regard by either counsel cannot throw away legal rights or enter into arrangement contrary to law. Certainly, courts cannot act on concessions of parties or&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">advocates while deciding the question of limitation or maintainability of a suit or proceeding . But this contention should have been urged at the earliest point of time or in the appeals filed after the awards were passed. Whenever mixed question of law and facts are involved, no finding as to limitation can be given in a writ proceeding .</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">30. The next aspect to be answered is, if the court passed an award in a reference which, according to society was time barred, did the award become nullity as the court lacked inherent jurisdiction to entertain time barred reference. The reference court lacked inherent jurisdiction to entertain a time barred reference and thereby the awards became nullity and unexecutable, was the point argued by Sri. S.P .Shankar. He has sought support for his argument from two decisions of the Supreme Court in the cases of K iran Singh (supra) and Jagmittar Sain Bhagat and Others</span><span style=\"font-size: 12pt;\">&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">vs Director , Health Services, Haryana and Others [(2013) 10 SCC 136].</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. In Kiran Singh, the question as to jurisdiction of the court arose in the context of section 11 o f the Suits Valuation Act, and while dwelling on it, the Supreme Court laid down a ratio that :</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“6. ………. . It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings…….”&nbsp;</i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. Following Kiran Singh ’s case and decisions in other cases, the Supreme Court in the case of Jagmittar Sain Bhagat reiterated the principle as extracted below:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>“9. Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the root of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/ inexecutable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetrate and perpetuate defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does not apply. (Vide: United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230; Smt. Nai Bahu v. Lal Ramnarayan &amp; Ors., AIR 1978 SC 22; Natraj Studios (P) Ltd. v. Navrang Studios &amp; Anr., AIR 1981 SC 537; and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar &amp; Ors., AIR 1999 SC 2213).”</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. The settled law is, a decree or award passed by a court or tribunal which lacks inherent jurisdiction to decide a case is a nullity, and if such a decree or award is put into execution its non-executability can be raised in the execution&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">proceeding in terms of section 47 of CPC. What is the meaning of inherent lack of jurisdiction? If a court entertains a time barred suit and passes a decree, can it be said that the court lacked inherent jurisdiction to entertain the suit and thereby the decree is a nullity? Answers to these questions may be given in the following way.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34. Inherent lack of jurisdiction means the court or the tribunal should not have been vested with jurisdiction to deal with the subject matter brought before it. To illustrate, section 9 of CPC clearly states that the court shall have jurisdiction to try the suits of civil nature and they cannot try suits cognizance of which is either expressly or impliedly barred. There are certain statutes which exclude the jurisdiction of the civil courts in respect of certain matters. For instance Section 34 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">has excluded the jurisdiction of the civil court in respect of matters which can be decided by Debts Recovery Tribunal or the Debts Recovery Appellate Tribunal. Section 61 of Land Revenue Act bars the jurisdiction of civil court in respect of matters enumerated therein. Like that there are statutes which have excluded the jurisdiction o f civil courts. I f the courts entertain suits in respect of these matters and grant a decree, such decrees are unexecutable as the decrees are null and void because the civil courts lack inherent jurisdiction. If the court entertains a suit in respect of which it has no territorial jurisdiction or pecuniary jurisdiction and grants a decree, such a decree does not become unexecutable; though the court lacked jurisdiction to entertain a suit for want of territorial jurisdiction or pecuniary jurisdiction, it cannot be said that the court in such a case lacks inherent jurisdiction as its jurisdiction is not&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">expressly or impliedly bared in terms of section 9 of CPC, and the executability of the decree passed by such a court cannot be questioned in appeal or revision according to section 21 of CPC unless the objection to that effect was taken at the earliest point o f time and there has been a consequent failure of justice. Apposite to the context, the Supreme Court has held in the case of BudhiaSwa in and Others Vs. Gopinath Deb and others – [(1999) 4 SCC 396] that :</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“9. A distinction has to be drawn between lack of jurisdiction and a mere error in exercise of jurisdiction. The former strikes at the very root of the exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity. A mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject to the law of limitation.\"</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>35. But if decree is granted in a time barred suit, it cannot be said that the decree becomes unexecutable . Section 3 of the Limitation Act states that the suit or appeal or application shall be dismissed if it is time barred. Here the court has jurisdiction to entertain the suit or any application, but it cannot grant a decree because of lapse of limitation period . In case if the court entertains a time barred suit, the court does not lose its inherent jurisdiction to entertain the suit, it is only an error in exercising jurisdiction. Such&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">a decree can be questioned in an appeal or revision petition. This is how the distinction can be made between inherent lack of jurisdiction of a court and error in exercising jurisdiction.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">36. In the case on hand, according to the society the reference petition could not have been decided by the court as the reference itself was bad because application seeking reference was made after lapse of limitation. As discussed above, question of limitation could have been contended in reference proceeding, it was not taken. After the awards were passed, the Spl. LAO as also the society preferred appeals before this court and they were all dismissed. Therefore the awards attained finality. Assuming for argument sake that the reference was time barred, yet the award came to be passed; and akin to a situation like this the Supreme Court in the case of</span><span style=\"font-size: 12pt;\">&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Ittyavira Mathai Vs. Varkey Varkey and Another [ AIR 1964 SC 907] has held as below:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“8. The first point raised by Mr. Paikedy for the appellant is that the decree in O. S. No. 59 of 1093 obtained by Anantha Iyer and his brother in the suit on the hypothecation bond executed by Ittiyavira in favour of Ramalinga Iyer was a nullity because the suit was barred by time. Even assuming that the suit was barred by time, it is difficult to appreciate the contention of learned counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities. Learned counsel, however, referred us to the decision of the Privy Council in Maqbul Ahmed v. Onkar Pratap Narain Singh [AIR 1935 PC 85], and contended that since the court is bound under the provisions of section 3 of the Limitation Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction if it fails to do so. All that the decision relied upon says is that section 3 of the Limitation Act is peremptory and that it is the duty of the court to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings. The privy council has not said that where the court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity.”</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>37. In the case of Budhia Swain (supra), it is held as below:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“13. None of the two pleas was raised by the appellants in their pleadings. None of the two was urged before O.E.A. Collector. Therefore there was no occasion to consider those pleas. Still we may make it clear that none of the two pleas could have been a ground for recalling the order which was otherwise within the jurisdiction conferred on the O.E.A. Collector. Though it is a disputed question of fact, as noted by the High Court, that the application by the respondent no.1 was filed within the prescribed time or not. Nevertheless, we are very clear in our mind that an order made on an application filed beyond the time prescribed for filing the same may be an illegal order but is certainly not an order passed without jurisdiction.”&nbsp;</i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>38. Therefore applying the above principle to the case on hand, it can be very clearly stated that the awards, even if they were passed in time barred reference proceedings, did not become nullity and unexecutable , and consequently executability of the awards cannot be questioned&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under section 47 of CPC . Thus point No .(ii) is answered in negative</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(iii)&nbsp;<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>39. This is a hypothetical question , but requires to be answered. Writ petitions 41455/2010 and connected petitions were filed by a few allottees of the society challenging the orders dated 08.12.2004 passed by the court calling upon the Special Land Acquisition Officer to make a reference and the award dated 19.01 .2005 passed by the court enhancing the compensation. The society has not produced the copy of the writ petition or the order therein, but as can be made out from the order in W.A.Nos.17183-17186/2011 produced by the land owners as Annexure R10 in W.P.No.24082/2022, the grounds urged in W.P.No.41455/2010 and connected matters were (i) non impleadent of society (ii) fraud played on&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the court and (iii) lapse of limitation period. The writ petitions were allowed. The order in writ petitions were challenged in the writ appeals which were allowed holding that the writ petitions were not maintainable as they had been filed under Article 226 of the Constitution of India against the judgment of the civil court and secondly, fraud being a disputed question of fact, writ jurisdiction could not have been invoked.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">40. The argument of Sri S.P.Shankar was that writ petitions had been filed under Article 227 of the Constitution of India, and intra court appeal under section 4 of the Karnataka High Court Act was not maintainable in view of judgment of Full Bench in the case of Tammanna. Special Leave Petition preferred against the judgment in Writ Appeals no doubt stood dismissed; but dismissal of Special Leave Petition did not validate the judgment in Writ Appeals, as the Division Bench</span><span style=\"font-size: 12pt;\">&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">lacked jurisdiction to entertain the Writ Appeals. And judgments in Writ Appeals did not operate as res-judicata to hold that awards became final.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">41. The argument of Sri S.P.Shankar appears to be technically plausible , but not acceptable. As can be made out from the synopsis filed by the counsel for the society and the facts culled out in the judgment in W.A.Nos.17183-17186/2011, one of the pleas was non-impleadment of beneficiary in reference proceedings. May be under the impression that the beneficiary had not been made a party in reference proceeding i.e ., in a proceeding for determination of compensation, learned single judge might have allowed the writ petitions. But the fact remains that the beneficiary society was a party in reference proceedings. I have held while discussing point No.(i) that society was not a necessary or proper party in proceeding under section 18(3)(b) of the&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Act. If it was the plea of the society in W.P.No.41455/2010 and connected cases that it had not been made a party in the reference proceeding, it was nothing but misleading the writ court. Any order passed under misconception of fact cannot be taken advantage by the society, that too when the Special Leave Petition filed by it was dismissed. Therefore the order in W.P.41455/2010 and connected matters has no impact on executabity of awards.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(iv)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>42. Sri. S.P . Shankar argued that unless the land owners receive the compensation under protest, they cannot seek reference to court and in this regard he relied on certain rulings.&nbsp;<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>43. Smt. Sona Vakkund argued that the land owners did protest for the award, and the moment they sought reference, it implied that they were&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not agreeable for the award passed by the Land Acquisition Officer.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">44. The argument of Sri. S.P .Shankar is not acceptable , and there is no need to refer to the decisions relied upon by him because the society has clearly stated in the writ petition that the land owners received the compensation under protest. Having stated so , argument contrary to pleading cannot be entertained .</span><span style=\"font-size: 12pt;\">&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(v)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>47. The argument of Smt. Sona Vakkund was that if according to the society the application under section 18(3)(b) was time barred; that the reference was bad in as much as the society was not a party in section 18(3)(b) proceeding, and that the land owners colluded and played fraud by abusing the process o f court in getting filed a memo dated 24.11.2004 by an unauthorized person, the contentions in that regard ought to have been raised in the proceeding or in the MFAs filed by it. Then in W.P .153-155/2010, the society contended about fraud, but it withdrew the writ petitions seeking liberty to urge all the contentions taken there in MFAs 1482-1484/2009. But those appeals were dismissed for default. The society thus having failed to urge those contentions in the appropriate proceedings cannot urge those&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">contentions again in the instant writ petitions as they are hit by principles o f res-judicata.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>51. But Sri. S.P. Shankar placing reliance on the judgment o f the Supreme Court in the case of Syed Mohd. Salie Labbai (Dead) by LRs and Others vs Mohd. Han ifa by L.Rs and Others (AIR 1976 SC 1569) argued that rule of res&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">judicata would not come to the aid of the land owners as society was not a party in section 18(3)(b) proceedings. Smt. Sona Vakkund also referred to same judgment to point out that society was a party in reference proceedings. As it is already made clear as to how the rule of constructive res- judicata binds the society, the case of Syed Mohd. Salie does not help the society. Therefore point No .(v) is answered in affirmative.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(vi):</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>55. Be that as it may, the Special Land Acquisition Officer/Government made an application under section 47 of CPC, it was dismissed. The society also ob jected to execution by making application under section 47 of CPC. Aptly applicable to a situation like this, the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Supreme Court has held in the case of R.P.A.Vall iammal vs R .Palan icham i Nadar and Others [AIR 1997 SC 1996] that</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“2. ………. Section 47 postulates that all questions arising between the parties to the sui t in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. Explanation 1 added thereto by Amendment Act, 1976 postulates that for the purposes of this section, a plaintif f whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit. The opportuni ty to ob ject to executability of the decree could be taken only once and repeated applications appear to be unwarranted……………. .</span><span style=\"font-size: 12pt;\">&nbsp;</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>56. Therefore the application filed by the society under section 47 of CPC was rightly&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dismissed and I do not find any infirmity in the order.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>58. Annexure-R4 is a copy of the letter addressed to the purchaser Prabhakar bringing to his notice that the reference petitions filed by the land owners had been allowed and the compensation had been enhanced, and therefore he was directed to deposit the excess sale consideration that he was supposed to pay in proportion to the dimension of his site or the plot and get the katha registered.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>59. The reason for referring to Annexures-R3 and R4 is to demonstrate the conduct of the society in avoiding to make payment of the compensation amount determined by the court. Though the award was passed by the court on 19.1 .2005, till now it appears that the land owners&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">are not paid money that they are entitled to. Moreover in W.P.Nos.14478-14483/2017 the order of which is produced at Annexure-R14, while sustaining the stay of the execution as it a ffected the interest of one Muralidhar who was the plaintiff in O.S.29/2016, it was directed that the rest of the execution proceeding should go on expeditiously. The original land owners died and now they are represented by their legal representatives. Despite the fact that society was a party in W.P.Nos.14478-14483/2017, yet W.P.Nos. 24106/2022 and 24169/2022 are filed seeking to terminate the execution proceedings. Therefore all these aspects clearly indicate the intention of the society to defeat the awards. This being the conduct of the society, if costs are not imposed it is nothing but travesty of justice.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">60. In view of the above discussion, I come to conclusion that all the four writ petitions are&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">devoid of merits. For any reason execution proceedings cannot be terminated. The reliefs sought for by the society cannot be granted. Therefore all the writ petitions are to be dismissed with costs of Rs .1,50,000/- each.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) All the writ petitions are dismissed with costs of Rs.1 ,50 ,000/- each.&nbsp;</b></p>', '0ac8260b2573bdd900c088bfe2eb8e05.JPG', 'f9347dc3072f5965aae1bd7e3e5731bc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-28', 1, '', '', '2023-07-28 12:13:48', '2023-07-28 12:22:03');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3257, 'QEg0oSO3J2yqpQzf6cblQNwWi', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque Dishonor. When the signatory to the cheque was a sole proprietor of a firm, on his death, the liability would not move upon the legal heirs of such sole proprietor. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Raghav Hedge and others Vs Sureshlal Hiralal Huf and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 7399 of 2020 decided on 21 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioners are before this Court calling in question\r\nproceedings in C.C.No.2715/2020 registered for the offence\r\npunishable under Section 138 of the Negotiable Instrument Act,\r\n1881 (hereinafter referred to as \'Act\' for short).<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Facts in brief germane are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>One Sivan and Company, a sole proprietorship of one Sri.\r\nV.G.Siddartha, was engaged in the business of trading of\r\nshares. It transpires that the respondent / complainant and\r\nthe sole proprietor had transactions amongst themselves and\r\nthe transactions leads to issuance of certain cheques by the\r\nsaid sole proprietor in favour of the respondent. Two of such\r\ncheques were honoured, and the other three of the cheques\r\nwere kept to be presented. In the interregnum, the sole\r\nproprietor dies. On the death of the sole proprietor, the\r\ncheques that were presented and dishonoured were sought to\r\nbe proceeded against by registering a crime against the\r\npetitioners. The concerned Court takes cognizance of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">offence and issues summons to the petitioners, it is then the\r\npetitioners knock at the doors of this Court in the subject\r\npetition.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The afore-narrated facts are not in dispute, and the\r\nissue lies in a narrow compass. It is admitted that Sivan and\r\nCompany was a proprietorship concern and cheques had been\r\nissued by the late V.G.Siddartha. The two cheques were\r\npresented during his life time which were honoured, three of\r\nthe cheques which were presented after his death were\r\ndishonoured, and that leads to the registration of the crime\r\nagainst the petitioners. The Apex Court in the case of Raghu\r\nLakshminarayan V/s. Fine Tubes reported in (2007)5 SCC 103,\r\nconsidering an identical issues, holds as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>9. The description of the accused in the\r\ncomplaint petition is absolutely vague. A juristic person\r\ncan be a company within the meaning of the provisions\r\nof the Companies Act, 1956 or a partnership within the\r\nmeaning of the provisions of the Partnership Act, 1932\r\nor an association of persons which ordinarily would\r\nmean a body of persons which is not incorporated under\r\nany statute. A proprietary concern, however, stands\r\nabsolutely on a different footing. A person may carry on\r\nbusiness in the name of a business concern, but he\r\nbeing proprietor thereof, would be solely responsible for\r\nconduct of its affairs. A proprietary concern is not a\r\ncompany. Company in terms of the Explanation\r\nappended to Section 141 of the Negotiable Instruments\r\nAct, means any body corporate and includes a firm or\r\nother association of individuals. Director has been\r\ndefined to mean in relation to a firm, a partner in the\r\nfirm. Thus, whereas in relation to a company,\r\nincorporated and registered under the Companies Act,\r\n1956 or any other statute, a person as a Director must\r\ncome within the purview of the said description, so far\r\nas a firm is concerned, the same would carry the same\r\nmeaning as contained in the Partnership Act.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>10. It is interesting to note that the term\r\n\"Director\" has been defined. It is of some significance to\r\nnote that in view of the said description of \"Director\",\r\nother than a person who comes within the purview\r\nthereof, nobody else can be prosecuted by way of his\r\nvicarious liability in such a capacity. If the offence has\r\nnot been committed by a company, the question of there\r\nbeing a Director or his being vicariously liable,therefore,\r\nwould not arise.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\r\n11. The appellant herein categorically contended\r\nthat Accused 1 was a proprietary concern of Accused 2\r\nand he was merely an employee thereof. </i><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">8. In the light of the facts in the case at hand being as\r\naforesaid and the Apex Court rendering its finding on identical\r\ncircumstances would lead to the obliteration of the crime\r\nagainst the petitioners, which would however not preclude the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">complainant to initiate any proceedings in accordance with\r\nlaw.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n1) Criminal petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '516adbf1bda24ee57145f53bdecac421.jpeg', 'cd9fcd32c6b959a1281e4405d83a5e2d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-29', 1, '', '', '2023-07-28 13:09:46', '2023-07-29 10:19:03'),
(3263, '9jnNNK0bti8807EqiNPE011PW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque dishonour. Cheque issued by Secretary on behalf of Trust. Complaint is not maintainable without making the Trust a party to the proceedings. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Babu Rao Mahanthappa Shegunasi Vs The Director Distance Education and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRL.P. 2342 of 2022 decided on 21 June 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b> 3.<span style=\"white-space: pre;\">	</span>The<span style=\"white-space: pre;\">	</span>brief facts that led to the petitioner knocking the doors of this Court are as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">The petitioner who was Secretary of one M/s. Navodaya Vikasa Trust (R) enters into a memorandum of understanding with Kuvempu University on 01.01.2011. A complaint is registered by the complainant – Kuvempu University against  the office bearers of the Trust on the score that a cheque that was issued on 27.10.2020 for a sum  of Rs.2,15,087/- in Crl.P.No.2342/2022 had been dishonoured on account of want of  sufficient  funds. This led to registration of a crime invoking Section 200 of Cr.P.C., and for offence punishable under Section 138 of the Negotiable Instruments Act, 1881. On registration of the crime, the petitioner had knocked the doors of this Court, in the subject petition.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">7.<span style=\"white-space: pre;\">	</span>The afore-narrated facts of  transaction is  not in dispute. A memorandum of understanding is between Directorate of Distance Education, Kuvempu  University and Navodaya Vikasa Trust, Bijapur. The petitioner in these petitions is a signatory in the capacity of being Secretary representing the Trust.  But the memorandum of understanding has entered into between the Trust and Kuvempu University. Therefore, it cannot  be said that the Trust need not be a party to the proceedings.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>8.<span style=\"white-space: pre;\">	</span>The High Court of Gujarat in the case of Hakkimuddin Taherbhai Shakor (Trustee) and Ors. Vs. State of Gujarat and Ors. disposed on 30.03.2017, has considered this issue in elaboration, as to whether a Trust would come within Section 141  of the N.I.Act. The Court holds that the Trust would come within the  ambit of N.I.Act and without the  Trust being a party, the complaint against the office bearers of the Trust would not be maintainable. The reasons rendered by the learned Judge reads as follows:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>45. In view of the above, I find it difficult to agree with the learned senior counsel Mr. A. Ramesh that the term \'Trust\' has been consciously omitted in Section 141 of the Negotiable Instruments Act alone. It cannot be said that the Parliament was not aware of the existence of \'Trusts\' and their activities. It only gives the irrevocable impression that the Parliament would have been satisfied that the definition of the term \'Company\' as made in all these enactments will very well take into its ambit the term \'Trust\' also and so, there is no need to specifically incorporate the term \'Trust\'. That is the reason why, I firmly believe, the term \'Trust\' has not been included explicitly in the definition of the term \'Company\'.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>46. Now, we may examine, whether a Trust will fall within the ambit of \'Association of Individuals\' as enumerated in Section 141 of the Negotiable Instruments Act.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>47. As we have already extracted in the earlier paragraphs, in Ramanlal Bhailal Patel v. State of Gujarat reported in 2008 (5) SCC 449, the Hon\'ble Supreme Court has laid down two important elements for a group of persons to constitute an \'Association of Individuals\' as defined in Section 141 of the Act. To repeat, the combination of individuals should have been on their own volition and secondly the said combination is for a common purpose. If both the above elements are available, then combination of such persons will be an \'association of individuals\' in terms of Section 141 of the Negotiable Instruments Act.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>48. So far as a Trust having more than one Trustee, there is combination of individuals. The said combination of individuals is on their own volition. If an individual agrees to be one of the Trustees, either by nomination or by election etc., then the combination is on his own volition. Apart from that, there will be at least a minimum of one common purpose in every Trust, which is the obligation imposed on the Trust. Thus, the Trust, being a combination of individuals, is an \'association of individuals\' in terms of Section 141 of the Negotiable Instruments Act. Thus, there can be no difficulty in holding that a Trust, having two or more trustees, is undoubtedly a company for the purposes of Section 138 and 141 of The Negotiable Instruments Act.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>49. But difficulty will arise in respect of a Trust where there is a single Trustee. If there is a single trustee, obviously there is no combination of individuals and therefore, it will not fall within the ambit of \'association of individuals\' so as to constitute a \'company\' in terms of Section 141 of the Negotiable Instruments Act. If it is eventually held that a Trust, having a single Trustee, is not a \'company\', then the said Trustee cannot be prosecuted, whereas the Trust alone can be prosecuted for the offence committed by the Trust under Section 138 of the Negotiable Instruments Act. But, on the contrary, if there are two or more Trustees, for the offence committed by the Trust, as we have concluded above, the Trustees can also be prosecuted provided they were incharge of the day today affairs and conduct of the Trust. If this interpretation is adopted, then it will lead only to absurdity. It is the basic principle of interpretation that an enactment cannot be interpreted so as to result in absurdity. To avoid such absurdity, we have to make purposive interpretation of the provisions of the Act so as to take forward the object of the Act.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>50. In this regard, Mr. P.N. Prakesh, the learned Amicus Curiae would submit that the above interpretation sought to be made by the learned senior counsel for the petitioners does not reflect the intention of the Legislature behind incorporation of Section 141 to the Act. He would point out that Chapter XVII of the Negotiable Instruments Act was inserted in the Act w.e.f 01.04.1989, by amending the Act by means of Amendment Act 66 of 1988. This Chapter has been inserted with a view to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalty in case of bounce of cheque due to insufficiency of funds in the account or for the reason that it exceeds the arrangement made by the drawer with adequate safeguards to prevent harassment of honest drawer.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>51. According to the learned Amicus Curiae, the explanation of the term \'Company\' as made in Section 141 of the Act has to be understood in the context in which the said Chapter was inserted and the purpose which is sought to be achieved by the same. The learned Amicus Curiae would further submit that if the interpretation which is sought to be made by the learned senior counsel for the petitioners is accepted, then, it will only defeat the very object of introduction of Chapter XVII in the Act. The learned Amicus Curiae would , therefore, submit that purposive construction alone would be appropriate in the given circumstances.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>60. Section 141 of the Negotiable Instruments Act defines the term \'company\' by using the words means and includes. As per the explanation a company means a body corporate and firm or association of individuals. Therefore, any person who falls within the ordinary natural meaning of the expression body corporate will be undoubtedly a company. In the later inclusive clause, the Legislature has enumerated two persons viz., \'a firm\' or \'association of individuals\' which will not fall within the ordinary natural meaning of the expression \'body corporate\'. As per the Rule of Interpretation, which we have referred to above, the intention of the Legislature is not to include any other person within the meaning of the term \'company\' as the list in the inclusive clause is exhaustive.”</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>61. A Trust, admittedly does not fall within the ordinary natural meaning of the expression body corporate. Similarly, it does not fall within the ambit of a firm also. But as we have already concluded, a Trust having two or more persons will fall within the ambit of \'association of individuals\' and thus such a Trust is a company. But a Trust having a single trustee will not fall within the ambit of \'association of individuals\' and thus, it may appear that such a Trust is likely to escape from the clutches of Section 141 of the Negotiable Instruments Act.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>62. It is the submission of the learned Advocate Mr. P.N. Prakash that such omission of the term \'Trust\' in the definition clause of Section 141 is a casus omissus. Indisputably, what is not intentionally omitted by the Legislature and what the Legislature would have intended to mean but not expressly included falls within the concept of casus omissus.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>63. After making a scientific analysis and a comparative study of various enactments, I have already held in the earlier paragraphs of this order that the omission of the expression \'Trust\' in the definition clause of Section 141 of the Act is not with an intention to keep the trust out of the purview of Section 138 and 141 the Act. In my considered opinion, going by the purpose for which Section 138 and Section 141 were brought into being by means of amendment to the Negotiable Instruments Act and going by the very fact that a Trust having two or more trustees squarely falls within the ambit of Section 141 of the Act, I have no option but to hold that the Legislature\'s intention is to have the Trust also to fall within the meaning of the expression \'company\', but it has omitted to expressly say so in Section 141 of the Act, which according to me is only a casus omissus.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>64. When there is omission to expressly mention the expression \'Trust\' within the meaning of the term \'company\', by applying the principle of casus omissus, whether this Court could fill up the said gap by reading the expression \'Trust\' into the interpretation clause of Section 141 of the Act. In this regard, I may refer to the Constitution Bench Judgment of the Hon\'ble Supreme Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh reported in 1990 (3) SCC 682, wherein the Hon\'ble Supreme Court has held as follows:- “However, a judge facing such a problem of interpretation can not simply fold his hands and blame the draftsman. Lord Denning in his Discipline of Law says at p. 12: </b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>\"Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsman of Acts of Parliament have often been unfairly criticised. A judge, believing himself to be lettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give \'force and life\' to the intention of the legislature.\"</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>65. Applying the above law laid down by the Constitution Bench of the Hon\'ble Supreme Court, as I have already concluded, considering the intention of the Legislature while bringing in Chapter XVII of the Negotiable Instruments Act and the fact that a Trust having two or more trustees will squarely fall within the ambit of \'association of individuals\' which in turn will fall within the meaning of the term \'company\', I am of the view that a Trust having a single trustee should also be brought within the definition of the term \'company\' and thus the expression \'Trust\' should be read into the Explanation \'a\' to Section 141 of the Negotiable Instruments Act</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>66. My conclusions are summed up as follows:</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(i) A Trust, either private or public/charitable or otherwise, is a juristic person who is liable for punishment for the offence punishable under Section 138 of the Negotiable Instruments Act.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(ii) A Trust, either private or public/charitable or otherwise, having either a single trustee or two or more trustees, is a company in terms of Section 141 of the Negotiable Instruments Act.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(iii) For the offence under Section 138 of the Negotiable Instruments Act, committed by the Trust, every trustee, who was incharge of the day today affairs of the Trust shall also be liable for punishment besides the Trust.\"</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>In the light of the undisputed fact that the Trust is not a party to these proceedings and it stands in the same footing as a Company, the judgments that would consider the Company not being a party becoming a vitiating factor to the proceedings would become applicable to the case at hand as well. It is not a defect that is curable by addition of parties at any point  in time, since there can be no vicarious liability without arraigning the Company/Trust as an accused.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">9.<span style=\"white-space: pre;\">	</span>Therefore, in view of the finding that the complaint itself was not maintainable without the Trust being made a party. I deem it appropriate to terminate the proceedings, qua the petitioners in all these cases.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>i.<span style=\"white-space: pre;\">	</span>Criminal Petitions are allowed.</b></font></span></p>', '4bbe36ae41d5dc50511b3a118a6293f1.jpeg', '794ae1618ed3671cb17ec8f699996c65.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-31', 1, '', '', '2023-07-30 17:36:20', '2023-07-31 06:22:14');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3264, 'eiKffHffADriiTcPOoHHzrFG9', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Cooperative Societies Act. Authorities under the Act have no jurisdiction to decide title of parties. Validity of registered Sale Deed cannot be gone into under Sections 70 and 118 of the Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>S Arumugham and others Vs Rajshekhar.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 5384 of 2010 decided on 22 July 2022.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice E.S. Indiresh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>The factual matrix of the case are that the plaintiff averred that he is a Member of Shree Rukmini Co-operative Housing Society, Belgaum (for short, hereinafter referred to as the “Society”), and the said Society developed land bearing RSA No. 5384 of 2010 Survey No.1291/1, 1291/3 and 1032 of Belgaum; Plots were formed in the said land and allotted to the Members of the Society. Plot No.82 had been allotted to the plaintiff and thereafter, the Society executed registered Sale Deed in favour of the plaintiff on 05th May, 1986. It is the case of the plaintiff that possession of the suit schedule property was handed over to the plaintiff and thereafter, the plaintiff became the absolute owner in possession of the suit schedule property. It is the further case of the plaintiff that defendants started interfering with the suit schedule property based on the allotment letter said to have been made by the said Society, and as such, the plaintiff filed Suit in Original Suit No.1043 of 1993 before the trial Court against the defendants, seeking relief of declaration that the plaintiff is the owner of the suit schedule property and to declare the agreement dated 29th October, 1983 between the Society in favour of defendants, as null and void.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>4.<span style=\"white-space: pre;\">	</span>On service of notice, defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the case of defendants that, the Society has allotted the suit schedule property on 29th October, 1983 and defendants had paid the entire sale consideration amount and further, defendants made an application to the Tahsildar, Belgaum for entering the name of defendants in the revenue records and same has been effected in the revenue records and further contended that defendants are in possession of the suit schedule property. It is also contended that suit is not maintainable in view of the bar under Sections 70 and 118 of Karnataka Co-operative Societies Act, 1959 and accordingly, defendants sought for dismissal of the suit.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>5.<span style=\"white-space: pre;\">	</span>Based on the pleadings on record, the trial Court framed issues for its consideration. In order to establish their case, plaintiff got examined himself as PW1 and produced ten documents as Exhibits P1 to P10; Defendants examined two witnesses as DW1 and DW2 and produced twenty documents and same were marked as Exhibits D1 to D20. The trial Court, after considering the material on record, by its Judgment and Decree dated 18th August, 2000, decreed the suit, holding that the plaintiff is the absolute owner of Plot No.82 by virtue of the registered sale deed dated 05th May, 1986 and further declared that the agreement dated 29th October, 1983 is null and void and as such, restrained defendants from interfering with the suit schedule property. Feeling aggrieved by the same, defendants preferred Regular Appeal No.66 of 2004 before the First Appellate Court and the appeal was resisted by the plaintiff. The First Appellate Court, after considering the material on record, by its Judgment and Decree dated 16th September, 2009, dismissed the appeal; and being aggrieved by the same, defendants have presented this Regular Second Appeal under Section 100 of Code of Civil Procedure.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>6.<span style=\"white-space: pre;\">	</span>This Court by order dated 27th March, 2014 formulated the following substantial questions of law for consideration:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>(a)<span style=\"white-space: pre;\">	</span>Whether both the courts have committed a serious error in ignoring the material aspect of executing the sale deed by the President of the Society instead of Secretary to too without cancelling the earlier allotment/agreement of construction vide Exhibit D1?</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>(b)<span style=\"white-space: pre;\">	</span>Whether the sale deed relied upon by the plaintiff without possession being handed over is no sale within the purview of Section 54 of Transfer of Property Act?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>10.<span style=\"white-space: pre;\">	</span>In the light of the submission made by the learned counsel for the parties, I have given my anxious consideration to the contentions raised in this appeal and perused the original records. The principal argument advanced by the learned counsel appearing for appellants is with regard to the maintainability of the Suit as per Sections 70 and 118 of the Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>11.<span style=\"white-space: pre;\">	</span>Chapter IX of the Act provides for settlement of dispute and the language employed under Section 70 of the Act provides for jurisdiction of the Registrar to accept the petition filed by the aggrieved parties. Section 70(1) of the Act provides for entertaining the dispute by the Registrar under the Act relating to touching the constitution, management or the business of a Co-operative Society. The Co-operative Society ought to be one of the parties to the dispute, in terms of Section 70 of the Act. Clause (2) of Section 70 of the Act provides for species touching the constitution, management or the business of the Co-operative Society. The words “for the purposes of sub-section (1)” under Section 70(2) of the Act, provides for supplementing the general provision contemplated under Section 70(1) of the Act. Section 118 of the Act provides for bar of jurisdiction of Courts. The conjoint reading of Sections 70 and 118 of the Act, would pave way for dispute touching the constitution, management or business of the Co- operative Society and as such, Co-operative Society must be a predominant party to determine the rights of the parties. In the instant case, the grievance raised by the defendants before the trial Court and the arguments advanced by the learned counsel appearing for the appellants herein would not constitute “dispute touching the constitution, management or business of the Co-operative Society”. Suffice to say, Shree Rukmini Co-operative Housing Society, Belgaum is not a party to the proceedings and the dispute is inter-se between the plaintiff and defendants claiming ownership insofar as the suit schedule property is concerned and further, the relief sought for by the plaintiff is declaratory in nature and therefore, Civil Court is having jurisdiction to entertain the Suit and thereby, the argument advanced by the learned counsel appearing for the appellants with regard to maintainability, cannot be accepted. Be that as it may, appellants/defendants have not questioned the registered Sale Deed dated 05th May 1986 (Exhibit P1) executed by Shree Rukmini Co-operative Housing Society, Belgaum in favour of the plaintiff and that apart, the authorities under the Act have no jurisdiction to decide the title of the parties and therefore, the dispute, as to validity of registered Sale Deed, cannot be gone into under Sections 70 and 118 of the Act by the competent authority and therefore, I find force in the arguments advanced by the learned counsel appearing for the respondent/plaintiff.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>Yet another ground for affirming the Judgments and Decree of the courts below is that, the suit filed by the plaintiff is seeking for declaratory relief and that the said Shree Rukmini Co-operative Housing Society, Belgaum conveyed the plot in question to the plaintiff as per Exhibit P1 and thereafter, the possession has been delivered to the plaintiff as per Exhibit P6 vide Possession Deed dated 06th May, 1986 and therefore, the plaintiff has proved his title and possession in respect of the suit schedule plot. On the contrary, the defendant is relying upon the allotment letter said to have been issued by Shree Rukmini Co-operative Housing Society, Belgaum as per the agreement dated 29th October, 1983 vide Exhibit D1. It is well settled principle in law that agreement of sale does not confer title to the executants of the agreement unless it is converted into registered Sale Deed and therefore, in view of execution of the registered sale deed dated 05th May, 1986 by Shree Rukmini Co-operative Housing Society, Belgaum in favour of the plaintiff, the plaintiff has established his ownership insofar as the suit schedule property. It is well established principle in law that, in a declaratory suit, the courts have to trace the title based on the registered documents in terms of the provisions contained under the Transfer of Property Act and in the present case, absolute registered sale deed has been executed by the Society in favour of the plaintiff and thereby, plaintiff, thus, exercising right of ownership in respect of the suit schedule property. In this regard, it is pertinent to refer to the law declared by this Court in the case of BHIMAPPA AND OTHERS v. ALLISAB AND OTHERS reported in ILR 2006 KAR 3129, wherein the observation made at paragraph 15 of the judgment, reads thus:<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>“15. Therefore, the contention that the evidence on record cannot be taken into consideration to declare the title of the plaintiff has no substance. The suit is one for declaration of title and for possession. In a suit for declaration of title, the plaintiff has to establish his title. Title cannot be established by his personal knowledge. It has to be established by producing documents under which he is claiming title, most of the time under a registered document. In so far as documents are concerned Section 61 of the Evidence Act mandates that the contents of documents may be proved either by primary or secondary evidence. Primary evidence means the documentary evidence produced for inspection of the Court. Therefore, when a particular fact is to be established by production of documentary evidence there is no scope for leading oral evidence and there is no scope for personal knowledge. What is to be produced is the primary evidence, i.e., document itself. The said evidence can be adduced by the party or by his Power of Attorney Holder. Production of the document, marking of the document is a physical act which does not need any personal knowledge. Even proof of the document is by examining the persons who are well versed with the document or by examining the attesting witnesses or the executant of the document. Again the personal knowledge of the plaintiff has no role to play. In those circumstances it is open to the plaintiff to examine the Power of Attorney Holder, produce the documents through the Power of Attorney Holder, mark the same and examine witnesses to prove the said document if it is denied. Therefore, the contention that the evidence of a Power of Attorney Holder cannot prove the case of the plaintiff in all cases is not correct and that is not the law laid down by the Supreme Court in the aforesaid judgment. In the instant case, the registered sale deed is produced and the same is proved by examining the executant of the said document, and it is on the basis of the said evidence the suit is decreed, which cannot be found fault with. ”<br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>13.<span style=\"white-space: pre;\">	</span>Establishing the title through relevant documents has been discussed by the Hon\'ble Apex Court in the case of SHYAM SUNDER PRASAD AND OTHERS v. RAJPAL SINGH AND ANOTHER reported in (1995)1 SCC 311, wherein it is held that the plaintiff shall prove that he had title and has been in possession of the same and such proof has to be laid on the basis of title documents.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>The Hon\'ble Apex Court in the case of SURAJ LAMP AND INDUTRIES PRIVATE LIMITED (2) THROUGH DIRECTOR v. STATE OF HARYANA AND ANOTHER reported in (2012)1 SCC 656, at paragraphs 16 to 19, has observed thus:<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>“Scope of an Agreement of sale 11.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><i>Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property.</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>18.<span style=\"white-space: pre;\">	</span>It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>19.<span style=\"white-space: pre;\">	</span>Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.”</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>It is also relevant to cite the law declared by the Hon\'ble Apex Court in the case of T.K. MOHAMMED ABUBUCKER v. P.S.M. AHMED ABDUL KHADER reported in AIR 2009 SC 2966, wherein the Hon\'ble Apex Court held that in a suit for declaration of title, the onus lies on the plaintiff to place reliance on the registered documents to prove his title and possession in respect of the suit schedule property. In the present case, the plaintiff produced Exhibit P1–registered sale deed dated 05th May, 1986 executed by the Society and Exhibit P6-Possession Deed dated 06th May, 1986 and therefore, both the courts below were justified in declaring that the plaintiff is the owner in possession of the suit schedule property and therefore, I do not find any acceptable ground as urged by the learned counsel appearing for the appellants.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space: pre;\">	</span>It is also settled principle of law that, even if two inferences are possible in a given set of circumstances, the finding recorded by the lower appellate court is binding on the High Court. In this connection, it is relevant to deduce the observation made by the Hon\'ble Supreme Court in the case of DODDANARAYANA REDDY (DEAD) BY LRs AND OTHERS v. C. JAYARAMA REDDY (DEAD) BY LRs AND OTHERS reported in (2020)4 SCC 649, wherein at paragraphs 25 and 26 of the judgment the Hon\'ble Supreme Court has observed thus:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>“<i>25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf V. Anjuman-E-Ismail Madris- Un-Niswan, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under:</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>“12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.<br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>13.<span style=\"white-space: pre;\">	</span>In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC 392), this Court held:</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b>\"It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally <span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did.\"</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">14.</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem; white-space: pre;\">	</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">In Navaneethammal v. Arjuna Chetty (1996 6 SCC 166), this Court held :</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><i><b>\"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciate the evidence just to replace the findings of the lower courts. … Even assuming that another view is possible on a re-appreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.\"</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">15.</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem; white-space: pre;\">	</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Again in Secy., Taliparamba Education Society V. Moothedath Mallisseri Illath M.N. (1997 4 SCC 484), this Court held:</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\"><i><b>\"The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible.\"</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">26. In a judgment reported as Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar & Ors., this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the </span><font face=\"Calibri, sans-serif\">conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court held as under: “</font></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence.”</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>22.<span style=\"white-space: pre;\">	</span>For the aforestated reasons, the substantial questions of law framed by this Court favours the plaintiff/respondent herein</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>1.<span style=\"white-space: pre;\">	</span>Appeal is dismissed;</b></span></p>', 'f15f30ab5c1d0f7c13a9c5879dacd622.JPG', '5669b96dd5faf079a7cff2b006d84d6a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-31', 1, '', '', '2023-07-30 17:37:43', '2023-07-31 03:14:28');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3265, 'pJvQkJitCHqzCvwPtaXmOQYzs', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Criminal Law. Subsequent voluntary statement of the accused cannot be admissible in evidence and recovery to that effect amounts to “rediscovery of a fact already disclosed and capable of discovery.” Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mohammed Anwar and others Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1319 of 2016 decided on 20 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice K. Somashekar and Justice Rajesh Rai K.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This appeal by the convicted accused is directed\r\nagainst the judgment of conviction and order of sentence\r\ndated 23.07.2016 passed in S.C.No.91/2013 by Principal\r\nDistrict and Sessions Judge, Dakshina Kannada,\r\nMangaluru, wherein the accused are convicted for the\r\noffence punishable under sections 302, 201 r/w 34 IPC\r\nand accused Nos.1 and 3 to 6 are sentenced to suffer life\r\nimprisonment for the offence punishable under section 302\r\nIPC, so also, they are directed to undergo imprisonment\r\nfor three years for the offences under section 201 r/w 34\r\nIPC and pay a fine of Rs.10,000/- each, in default of\r\npayment of fine, they are further directed to undergo\r\nsimple imprisonment for a period for 30 days each.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. In the facts and circumstances of the case and in\r\nthe light of submission made on both side, the points that\r\nwould arise for consideration are:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(i) Whether the judgment under this appeal\r\nsuffers from any perversity or illegality?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(ii) Whether the learned Sessions Judge is\r\njustified in convicting the accused for the\r\noffence punishable under Sections 302\r\nand 201 read with 34 of IPC? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">20. The learned SPP would vehemently contend that\r\nrecovery of dead body at the instance of accused by way\r\nof exhumation proceedings is a major circumstance and\r\nthe conviction can be based solely on the said\r\ncircumstance, since the burial of dead body was well\r\nwithin the special knowledge of the accused and as such\r\nthey had shown the exact place where they buried the\r\ndead body and thereafter the same was recovered by the\r\ninvestigating officer in the presence of Doctor and Taluka\r\nExecutive Magistrate. In such circumstance, the\r\npresumption under Section 114 of the Indian Evidence Act\r\ncan be invoked and the Court can presume the guilt of the\r\naccused. </span><span style=\"font-size: 12pt;\">It is relevant to refer Sections 26 and 27 of the\r\nIndian Evidence Act, 1872 which reads thus: </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>26. Confession by accused while in\r\ncustody of police not to be proved against\r\nhim.—No confession made by any person whilst\r\nhe is in the custody of a police officer, unless it\r\nbe made in the immediate presence of a\r\nMagistrate, shall be proved as against such\r\nperson.—No confession made by any person\r\nwhilst he is in the custody of a police officer,\r\nunless it be made in the immediate presence of\r\na Magistrate, shall be proved as against such\r\nperson.\"\r\n</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>27. How much of information received\r\nfrom accused may be proved.—Provided\r\nthat, when any fact is deposed to as discovered\r\nin consequence of information received from a\r\nperson accused of any offence, in the custody of\r\na police officer, so much of such information,\r\nwhether it amounts to a confession or not, as\r\nrelates distinctly to the fact thereby discovered,\r\nmay be proved.\r\n</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 21. Insofar as scope of Section 26 of the Indian\r\nEvidence Act, the statements made in police custody are\r\nconsidered to be unreliable, unless they have been <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">subjected to cross-examination or judicial scrutiny. This\r\nissue has been addressed by the Hon’ble Supreme Court in\r\nthe case of Sehr vs. State of Karnataka (AIR 2010 SC\r\n1974). Further, in the case of Kamal Kishore v. State\r\n(Delhi Administration) (1997)2 Crimes 169 (Del), it\r\nis held that the confession made while in custody is not to\r\nbe proved against the accused as the provisions of\r\nSections 25 and 26 do not permit it unless it is made\r\nbefore a magistrate. This issue has been addressed by the\r\nHon’ble Supreme Court in the aforesaid case to a greater\r\nextent.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">22. Insofar as scope of Section 27 of the Indian\r\nEvidence Act in respect of how much of information\r\nreceived from the accused may be proved indicates as to\r\nwhether it amounts to a confession or not, as relates\r\ndistinctly to the fact thereby discovered, may be proved.\r\nInsofar as applicability of Section 27, the statement must\r\nbe split into its components and to separate the admissible\r\nportion. Only those components or portions which were </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the immediate cause of the discovery would be legal\r\nevidence and not the rest which must be exercised and\r\nrejected. This issue has been addressed by the Hon’ble\r\nSupreme Court in the case of Mohd.Inayatullah v. State\r\nof Maharashtra reported in AIR 1976 SC 279.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">25. As rightly contended by learned Senior counsel,\r\nonce the police had knowledge of discovery of the fact,\r\nthey failed to act upon it and subsequently, based on the\r\nvoluntary statement of co-accused, they recovered the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">same i.e., the fact well within their knowledge which\r\namounts to rediscovery of the fact. The Hon’ble Apex\r\nCourt in the case of Sukhvinder Singh and others vs.\r\nState of Punjab reported in (1994) 5 SCC 152 in para\r\n16 of the said judgment held as under:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“16. The first piece of circumstantial evidence\r\nrelied upon against them revolves around the\r\nrecovery of the dead body of Varun Kumar from\r\nthe house of Sukhvinder Singh and his parents on\r\nthe disclosure statement made by Sukhvinder\r\nSingh, Sukhdev Paul and Puran Chand Ex.\r\nPW.10/B, EX. PW10/C and Ex. PW10/D\r\nrespectively. We are surprised at the manner in\r\nwhich the disclosure statements were recorded by\r\nthe investigating agency and relied upon by the\r\nDesignated Court. That Section 27 of the Evidence\r\nAct is an exception to the general rule that a\r\nstatement made before the police is not admissible\r\nin evidence is not in doubt. However, vide Section\r\n27 of the Evidence Act, only so much of the\r\nstatement of an accused is admissible in evidence\r\nas distinctly leads to the discovery of a fact\r\nTherefore, once the fact has been discovered\r\nSection 27 of the Evidence Act cannot again be</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">made use of to \'re-discover* the discovered fact. It\r\nwould be a total misuse - even abuse-of the\r\nprovisions of Section 27 of the Evidence Act. From\r\nthe testimony of PW14, SI Kashmir Singh it\r\ntranspires that in the presence of PWs Hari Dutt\r\nand Jugal Kishore during the interrogation by SI\r\nAmar Singh, Sukhavinder Singh appellant made a\r\ndisclosure statement to the effect that he alongwith\r\nothers had concealed the dead body of Varun\r\nKumar in the stack of hay in the room and that he\r\ncould get the same recovered. His disclosure\r\nstatement Ex. PW10/B was accordingly recorded\r\nwhich was signed by him and attested by the\r\npanch witnesses. Except for the discovery of the\r\ndead body of Varun Kumar on the basis of the\r\ndisclosure statement of Sukhvmder Singh,\r\nEX.FW10/B, no other portion of the statement of\r\nSukhvinder Singh implicating himself and others\r\nwith the commission of the crime is admissible in\r\nevidence. After the disclosure statement was made\r\nby Sukhvinder Singh disclosing as to where the\r\ndead body of Varun Kumar had been concealed and\r\nfrom where it could be recovered, the recording of\r\nthe disclosure statements of Sukhdev Paul and\r\nPuran Chand Ex. PW10/C and Ex. PW10/D was a\r\nwholly impermissible exercise and an obvious </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">attempt to rope in Sukhdev Paul and Puran Chand\r\nwith the aid of Section 27 of the Evidence Act.\r\nSince, the information had already been given by\r\nSukhvinder Singh, appellant in his disclosure\r\nstatement Ex. PW10/B, the (wo subsequent\r\nstatements Ex. PW10/C and Ex.PW10/D were not\r\nadmissible in evidence because at the best they\r\nwere leading to the \"re-discovery of a fact already\r\ndisclosed and capable of discovery.” It has been\r\nadmitted by PW14 that the disclosure statement,\r\nEx. PWIO/B, made by Sukhvinder Singh was the\r\nfirst in point of time and that he had disclosed\r\nwhere the dead body had been concealed and that\r\nhe could point out the place and gel it recovered.\r\nThe investigating officer should have immediately\r\nacted upon disclosure statement Ex. PW10/B,\r\nrather than wait and record two more disclosure\r\nstatements, as if the authenticity of recovery of\r\ndead body could be achieved by the mere number\r\nof disclosure statements leading to the discovery of\r\none and the same fact. In the face of the admission\r\nof PW14 as noticed above, it is obvious that the socalled disclosure statements of Sukhdev Paul and\r\nPuran Chand Ex. PW10/C and Ex. PW10/D were not\r\nadmissible in evidence and the Designated Court\r\nfell in error in relying upon the same. Admittedly, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">so far as Puran Chand is concerned, apart from the\r\ndisclosure statement Ex. Pw10/D, there is no other\r\npiece of circumstantial evidence relied upon by the\r\nprosecution and once we rule out of consideration\r\nthe disclosure statement allegedly made by Puran\r\nChand Ex, PW10/D, the conclusion is inescapable\r\nthat the prosecution has not been able to establish\r\nthe case against Puran Chand beyond a reasonable\r\ndoubt and there is no circumstance which can\r\nconnect him with the alleged crime. The\r\nprosecution has led no evidence to show any\r\nconnection interse so far as the three appellants\r\nare concerned.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. On careful perusal of the dictum laid by the\r\nHon’ble Apex Court in the above said judgment, it is clear\r\nthat subsequent voluntary statement of the accused\r\ncannot be admissible in evidence and recovery to that\r\neffects to “rediscovery of a fact already disclosed and\r\ncapable of discovery.” Hence, as per the judgment\r\nrendered by the Hon’ble Apex Court supra, in our\r\nconsidered opinion, the prosecution failed to prove the\r\ncircumstance of recovery of dead body at the instance of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">accused i.e., based on the voluntary statement of accused\r\nNos.1, 3 to 6 as per Exs.P.26 to 30 respectively. Even\r\notherwise per the discovery/recovery of the dead body and\r\nthe weapons which said to have used for commission of\r\ncrime is concerned, the Apex Court laid the law in the case\r\nof Subramanya vs. State of Karnataka reported in\r\n2022 SCC Online SC 1400, wherein it is held the\r\nprocedural aspect how the recovery should be done by the\r\ninvestigating officer based on the disclosure statement of\r\nthe accused. In paras 82 to 84 of the said judgment, the\r\nHon’ble Apex Court discussed as under:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>“82. Keeping in mind the aforesaid evidence,\r\nwe proceed to consider whether the prosecution\r\nhas been able to prove and establish the\r\ndiscoveries in accordance with law. Section 27 of\r\nthe Evidence Act reads thus:</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“27. How much of information received\r\nfrom accused may be proved.—</span><span style=\"font-size: 12pt;\">  </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Provided that, when any fact is deposed\r\nto as discovered in consequence of information\r\nreceived from a person accused of any\r\noffence, in the custody of a police officer, so\r\nmuch of such information, whether it amounts\r\nto a confession or not, as relates distinctly to\r\nthe fact thereby discovered, may be proved.”</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>83. The first and the basic infirmity in the\r\nevidence of all the aforesaid prosecution witnesses\r\nis that none of them have deposed the exact\r\nstatement said to have been made by the\r\nappellant herein which ultimately led to the\r\ndiscovery of a fact relevant under Section 27 of\r\nthe Evidence Act.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n84. If, it is say of the investigating officer that\r\nthe accused appellant while in custody on his own\r\nfree will and volition made a statement that he\r\nwould lead to the place where he had hidden the\r\nweapon of offence, the site of burial of the dead\r\nbody, clothes etc., then the first thing that the\r\ninvestigating officer should have done was to call\r\nfor two independent witnesses at the police station\r\nitself. Once the two independent witnesses would\r\narrive at the police station thereafter in their\r\npresence the accused should be asked to make an\r\nappropriate statement as he may desire in regard\r\nto pointing out the place where he is said to have\r\nhidden the weapon of offence etc. When the\r\naccused while in custody makes such statement\r\nbefore the two independent witnesses (panchwitnesses) the exact statement or rather the exact\r\nwords uttered by the accused should be  <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">incorporated in the first part of the panchnama\r\nthat the investigating officer may draw in\r\naccordance with law. This first part of the\r\npanchnama for the purpose of Section 27 of the\r\nEvidence Act is always drawn at the police station\r\nin the presence of the independent witnesses so\r\nas to lend credence that a particular statement\r\nwas made by the accused expressing his\r\nwillingness on his own free will and volition to\r\npoint out the place where the weapon of offence\r\nor any other article used in the commission of the\r\noffence had been hidden. Once the first part of the\r\npanchnama is completed thereafter the police\r\nparty along with the accused and the two\r\nindependent witnesses (panchwitnesses) would\r\nproceed to the particular place as may be led by\r\nthe accused. If from that particular place anything\r\nlike the weapon of offence or blood stained clothes\r\nor any other article is discovered then that part of\r\nthe entire process would form the second part of\r\nthe panchnama. This is how the law expects the\r\ninvestigating officer to draw the discovery\r\npanchnama as contemplated under Section 27 of\r\nthe Evidence Act. If we read the entire oral\r\nevidence of the investigating officer then it is clear </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">hat the same is deficient in all the aforesaid\r\nrelevant aspects of the matter.\r\n</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">27. In the case on hand, accused No.2 volunteered\r\nbefore the police sub inspector of the respondent police in\r\nrespect of burial of dead body on 23.08.2009. Since the\r\npolice failed to act upon it, subsequently based upon the\r\nvoluntary statement of accused Nos.1, 3 to 6 alleged to\r\nhave been given on 24.08.2009 cannot be based and no\r\nevidentiary value can be attached on the same. The said\r\nrecovery of dead body by way of exhumation proceedings\r\ncannot be held against the accused as per the law laid\r\ndown by the Hon’ble Apex Court stated supra. Admittedly,\r\nthe investigating officer failed to prepare any panchanama\r\nin the presence of panch witnesses before the accused led\r\nthem to the place where the dead body was buried.\r\nHence, on careful perusal of the law laid down by the\r\nHon’ble Apex Court in the judgment of Subramanya vs.\r\nState of Karnataka and also subsequent judgment by the\r\nHon’ble Apex Court in the judgment of Boby vs. State of\r\nKerala reported in 2023 SCC Online SC 50, we are of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the considered opinion, the prosecution has failed to prove\r\nthe circumstance of recovery of dead body at the instance\r\nof accused Nos.1, 3 to 6.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. The learned SPP also argued that the recovery of\r\nthe material objects i.e., M.O.1 to 4 belonging to the\r\ndeceased – Siddappa was identified by PW.1 who is none\r\nother than the brother of the deceased. But at the same\r\ntime, PW.1 failed to depose any aspect against the\r\naccused in respect of the commission of crime or motive\r\nfor the alleged incident. As discussed supra, the other\r\ncircumstantial witnesses i.e., PWs.2 to 8 also partially\r\nturned hostile in this case and failed to depose any\r\nevidence against the accused in respect of their\r\nparticipation in the crime. In such circumstance, since the\r\ncase rests on circumstantial evidence, it is settled position\r\nof law that all the circumstances should be proved beyond\r\nreasonable doubt by hypothesis of the guilt of the accused\r\nas held by the Hon’ble Apex Court in the case of\r\nChandrapal vs. State of Chattisgarh reported in 2022 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">SCC Online SC 705. The Hon’ble Apex Court has\r\nreiterated the principles and guidelines issued in the case\r\nof Sharad Birdhichand Sarda Vs. State of\r\nMaharashtra reported in (1984) 4 SCC 116. The\r\nHon’ble Apex Court reproduced the five golden principles\r\nenumerated in the said case as under:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>“153. A close analysis of this decision would show\r\nthat the following conditions must be fulfilled before\r\na case against an accused can be said to be fully\r\nestablished:</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(1) the circumstances from which the conclusion of\r\nguilt is to be drawn should be fully established.\r\nIt may be noted here that this Court indicated that\r\nthe circumstances concerned “must or should” and\r\nnot “may be” established. There is not only a\r\ngrammatical but a legal distinction between “may\r\nbe proved” and “must be or should be proved” as\r\nwas held by this Court in Shivaji Sahabrao Bobade\r\nv. State of Maharashtra where the following\r\nobservations were made : [SCC para 19, p. 807 :\r\nSCC (Cri) p. 1047]</span><span style=\"font-size: 12pt;\"> </span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>Certainly, it is a primary principle that the\r\naccused must be and not merely may be guilty\r\nbefore a court can convict and the mental distance\r\nbetween ‘may be’ and ‘must be’ is long and divides\r\nvague conjectures from sure conclusions.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(2) the facts so established should be consistent\r\nonly with the hypothesis of the guilt of the accused,\r\nthat is to say, they should not be explainable on any\r\nother hypothesis except that the accused is guilty,</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>\r\n(3) the circumstances should be of a conclusive\r\nnature and tendency,</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(4) they should exclude every possible hypothesis\r\nexcept the one to be proved, and</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>\r\n(5) there must be a chain of evidence so complete\r\nas not to leave any reasonable ground for the\r\nconclusion consistent with the innocence of the\r\naccused and must show that in all human probability\r\nthe act must have been done by the accused.”\r\n</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">29. Hence, in the case on hand, the prosecution\r\nfailed to prove all the circumstance beyond reasonable\r\ndoubt. Though the prosecution relied on the evidence of\r\nPW.10 to prove the homicidal death of the deceased, but </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">at the same time, to connect the accused for the homicidal\r\ndeath of the deceased is concerned, the prosecution failed\r\nto place sufficient and cogent evidence in this case.\r\nHence, having regard to the totality of the evidence on\r\nrecord, we are of the considered opinion that the learned\r\nSessions Judge committed gross error in convicting the\r\nappellants/accused for the alleged charge of offence under\r\nSections 302 and 201 read with Section 34 of IPC by\r\nrelying on a very weak kind of evidence. It is settled\r\nprinciple of law by the Hon’ble Apex Court that suspicion\r\nhowever strong cannot take place of proof. Under such\r\ncircumstances, it is required to be held that the\r\nprosecution has miserably failed to bring home the\r\ncharges leveled against accused Nos.1, 3 to 6 beyond\r\nreasonable doubt.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n30. In view of the aforesaid reasons and findings, we\r\nare of the considered opinion that in this appeal it requires\r\nintervention and accordingly, we answer the points raised\r\nabove.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> The appeal filed by the appellants/accused\r\nNos.1, 3 to 6 under Section 374(2) of Cr.P.C. is\r\nhereby allowed. Consequently, the judgment of\r\nconviction and order of sentence rendered by the\r\nPrincipal District and Sessions Judge, D.K.\r\nMangaluru in S.C.No.91/2013 dated 23.07.2016 is\r\nhereby set-aside.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Appellants / accused Nos.1, 3 to 6 are\r\nacquitted for the offence under Sections 302 and\r\n201 read with Section 34 of IPC. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f08439bdcb2d0b13288267544355ac33.jpeg', '4723e90e8e61a336ccab37eda96a419b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-31', 1, '', '', '2023-07-30 17:51:50', '2023-07-31 12:41:46'),
(3261, 'fLSJCpE7i9HbB3c5D33pYSYKm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Certificate to appeal under Articles 132 and 134A of the Constitution of India cannot be sought on the grounds which were not urged in the proceeding before the High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Girraj Prasad Meena Vs Union of India.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Daily Status CRLA. 855 of 2015 of 28 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sreenivas Harish Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\">ORDERS ON I.A.1 OF 2023</span><br style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\"><span style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\">The appellant has filed an application under Articles 132 and 134A of the Constitution of India for a certificate by this court to prefer an appeal to the Hon’ble Supreme Court against the judgment dated 16.12.2022 in this appeal and also for a direction in exercise of jurisdiction under section 482 Cr.P.C. to the trial court to await the outcome of the adjudication of the issues by the Hon’ble Supreme Court before proceeding further pursuant to judgment and order of this court dated 16.12.2022.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\"><span style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\">2. I have heard Sri. S.K. Srivastava, counsel appearing on behalf of Sri. Mohan Bhat, learned counsel for the appellant and Ms. K. Ramulla, counsel appearing on behalf of Sri. P.Prasanna Kumar, learned counsel for the respondent.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\"><span style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\">3. It is the argument of Sri. S.K. Srivastava that the grounds taken up in paras 5 (A) to (M) of the application are of Constitutional importance to be decided by the Supreme Court. Therefore certificate under Article 132 of the Constitution of India is necessary to be issued. He further submits that Article 132 of the Limitation Act prescribes limitation of 60 days for making an application under Article 132 or Article 133 of the Constitution of India and in that view the present application filed on 16.1.2023 is within time. Referring to Article 134A of the Constitution of India, it is the submission of Sri. S.K. Srivastava that since after insertion of Article 134A in the Constitution of India by 44th amendment, Article 132 of the Limitation Act was not deleted, the present application cannot be said to be time barred.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\"><span style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\">4. Sri. Srivastava refers to the judgment of the Supreme Court in the case of Neeraj Dutta Vs. State (Government of N.C.T. of Delhi) - Crl.Appeal.No.1669/2009, where the Constitutional bench of the Hon’ble Supreme Court has laid down a ratio as regards essential ingredients to be satisfied for invoking offence under section 13(1)(d) read with 13(2) of Prevention of Corruption Act. He refers to para 5 of the said judgment.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\"><span style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\">5. Learned counsel for the respondent, Ms. Ramulla submits that according to Article 134A of the Constitution of India an oral application should be made soon after pronouncement of the judgment and the present application having been made in writing a month after is not maintainable. She refers to full bench judgment of this court in the case of Keshava S. Jamkhandi Vs. Ramachandra S. Jamkhandi – (AIR 1981 Kar. 97).</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\"><span style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\">6. I do not think that the submissions of Sri. S.K. Srivastava can be appreciated for the following reasons.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\"><span style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\">6.1. Firstly, the grounds found in para 5(A) to (M) of the application were not urged when the appeal was argued on merits. These legal points are taken up for the first time in the application. Clause 3 of Article 132 of the Constitution of India clearly states :</span><br style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\"><span style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\"><i>“(3) Where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided”.</i></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\"><span style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\">That means, this court should have given a finding on the question of law so that the Hon’ble Supreme Court can examine its correctness in case certificate to appeal is granted. Since none of these grounds was urged, there was no occasion to deal with them and to give findings. Therefore no certificate based on the grounds taken in the application can be given.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\"><span style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\">6.2. Secondly Article 134A of the Constitution of India clearly envisages that an oral application has to be made before the court immediately after the pronouncement of judgment or order. It is true that Article 132 of the Limitation Act, prescribes time limit of 60 days for applying for a certificate of fitness to appeal to the Supreme Court. A full bench of this court in the case of Keshava S. Jamkhandi (supra) has dealt with this point and the clear finding is:</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\"><span style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\"><i>“6. It is no doubt true that the Limitation Act, 1963 contains Art. 132 prescribing sixty days as the period of limitation for making application for a certificate of fitness to appeal to the Supreme Court under Arts. 132, 133 and 134 of the Constitution. That article has neither been deleted nor amended. It was, therefore, maintained that a written application for grant of certificate is not excluded. It is true that the existence of Art. 132 prescribing the period of limitation for making a written application brings about some incongruity. If there is a conflict between the enactment made by the Parliament and the constitutional provision, it is the constitutional provision that has to prevail. Sri U. L. Narayana Rao, Senior Central Government Standing Counsel appearing for the Union of India submitted that he has been instructed to submit to the Court that steps are being taken to delete Art. 132 of the Limitation Act and Art. 134A of the Constitution does not contemplate written applications. Now an aggrieved party can approach the Supreme Court for grant of special leave to appeal without in the first instance approaching the High Court for certificate. As the aggrieved party who did not make an oral application immediately, can move the Supreme Court for special leave, his rights will not be jeopardised.</i></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\"><span style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\">The full bench of this court has made it very clear that the Constitutional provision will prevail over the Articles of the Limitation Act and therefore the argument of Sri. S.K. Srivastava that application made within 60 days in terms of Article 132 of the Limitation Act, is within time, cannot be accepted. As Article 134A of the Constitution of India prevails over Limitation Act, question of limitation does not arise; the requirement is that certificate must be sought immediately after the pronouncement of the judgment or order.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\"><span style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\">6.3. Thirdly the judgment of this court dated 16.12.2022 is based on facts after re-appreciation of the evidence. Learned counsel for appellant argued on facts, and he did not raise any legal issue while arguing.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\"><span style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\">7. For all these reasons, I do not think that certificate as has been sought by the appellant can be granted now.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\"><span style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\">8. So far as the second relief claimed in the application under section 482 Cr.P.C. is concerned, Sri. S.K. Srivastava, submits that he does not press the same and he will pursue it before the Hon’ble Supreme Court.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\"><span style=\"color: rgb(33, 37, 41); font-family: \"Open Sans\", sans-serif; font-size: medium; text-align: justify;\">Therefore from the above discussion, the application for leave is dismissed.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '281a1f8d8928e59e5616997f8c4d1950.JPG', '', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-29', 1, '', '', '2023-07-29 10:06:56', '2023-07-29 05:17:50');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3266, '9fjrarNd77vzNruQGJ5vKxrV6', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Collection of Statistics Act, 2008. Conviction for neglect or refusal to supply particulars under Section 15 (1) will not absolve furnishing data. Second complaint under Section 15 (2) does not amount to double jeopardy. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Masturlal (Pvt) LTD Vs Government of India.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 4639 of 2022 decided on 28 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this court calling in question\r\nproceedings in C.C.No.4142 of 2016 pending before the 5th\r\nAdditional Chief Metropolitan Magistrate, Bengaluru, registered for\r\nthe offences punishable under Sections 15(2), 19, 22 and 23 of the\r\nCollection of Statistics Act, 2008 (hereinafter referred to as ‘the Act’\r\nfor short).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Facts, in brief, adumbrated are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The petitioner claims to be a registered company under the\r\nprovisions of the Companies Act with effect from 17-11-1971. It is,\r\nin these proceedings, represented by its Managing Director. The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Company is into manufacturing of Technical units of Textiles, which\r\nare used in industries. The petitioner is governed under the\r\nFactories Act, 1948, and for statistics and programme\r\nimplementation, it is governed under the Act. It is the claim of the\r\npetitioner that it has been diligent in furnishing statistical data to\r\nthe respondent / Government of India, Department of National\r\nSample Survey annually. In the year 2011, it is averred that the\r\nAccounts Officer of the petitioner was seriously ill and subsequently,\r\nsuccumbed to her illness and in the same year, the Chairman also\r\npassed away. On these grounds, the annual statistical data that\r\nhad to be submitted for the year 2010-11, to the respondent, was\r\nnot submitted. Therefore, the respondent initiates criminal\r\nproceedings by registering a complaint under Section 200 of the\r\nCr.P.C., in C.C.No.22683 of 2012. On the learned Magistrate issuing\r\nnotice, the petitioner appears and pleads guilty of the offence and\r\npays a fine amount of `5,000/- and `1,000/- in all `6,000/-, on\r\n28-05-2013.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. After closure of the proceedings on pleading guilty, the\r\npetitioner was required to furnish data to the respondent within the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">stipulated period under Section 15 of the Act. The respondent on\r\n28-02-2015 again filed a complaint invoking Section 200 of the\r\nCr.P.C., before the learned Magistrate for offences punishable under\r\nSections 15(2), 19, 22 and 23 of the Act. The learned Magistrate\r\ntakes cognizance of the offences and registers a case in\r\nC.C.No.4142 of 2016. It is the pendency of these proceedings that\r\ndrives the petitioner to this Court in the subject petition.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. I have given my anxious consideration to the submissions\r\nmade by the respective learned counsel and have perused the\r\navailable material on record. In furtherance whereof, the only issue\r\nthat falls for my consideration is, whether the impugned\r\nproceedings are tenable in law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. The afore-narrated facts are not in dispute. It is the\r\naverment of the petitioner/company itself that during the year\r\n2010-11, the data that was necessary could not be furnished. It is\r\ngermane to notice the reasons for enactment, its importance and\r\ncertain provisions of the Act for furnishing such statistics annually\r\nas a mandatory affair. The Amendment Act was introduced in the\r\nyear 2008 to facilitate the collection of statistics of certain kinds\r\nrelating to industries, trade and commerce. The Act was initially\r\nenacted in the year 1953 and the subject Act replaces the earlier\r\nAct. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">.... </span>The Government by notification in the official gazette would direct\r\nstatistics on economic, demographic, social, scientific and\r\nenvironmental aspects through a statistical survey. The industry of\r\nthe petitioner would come within the ambit of Section 3 of the Act.\r\nSection 15 of the Act deals with offences and penalties and reads as\r\nfollows:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>“15. Penalty for neglect or refusal to supply\r\nparticulars.—(1) Whoever, fails to produce any books of\r\naccounts, vouchers, documents or other business records or\r\nwhoever neglects or refuses to fill in and supply the particulars\r\nrequired in any information schedule or return given or\r\nsent to him or whoever neglects or refuses to answer any\r\nquestion or inquiry addressed to him as may be required under\r\nor for the purposes of any provision of this Act and the rules\r\nmade thereunder, shall be punishable with a fine which may\r\nextend to one thousand rupees or, in the case of a company,\r\nwith a fine which may extend to five thousand rupees. </i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>(2) The conviction of a person or company for an\r\noffence shall not relieve him or it of the obligations under\r\nsub-section (1) and if after the expiry of fourteen days\r\nfrom the date of conviction, he or it still fails to give the\r\nrequired particulars or continues to neglect or refuses to\r\nfill in and supply the particulars or to answer the question\r\nor inquiry, then he or it shall be punishable with a further\r\nfine which may extend to one thousand rupees or, in the\r\ncase of a company, with a fine which may extend to five\r\nthousand rupees, for each day after the first during which\r\nthe failure continues.” </i><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>The entire issue in the subject lis revolves around Section 15 of the\r\nAct. Section 15 of the Act which comes under Chapter-IV deals with\r\noffences and penalties. Penalty for neglect or refusal to supply\r\nparticulars is dealt with under the aforesaid provision. Sub-section\r\n(1) of Section 15 mandates that whoever fails to produce any books\r\nof accounts, vouchers, documents or other business records or\r\nneglects or refuses to fill in and supply the particulars shall be\r\npunishable with fine up to `5,000/-. Sub-section (2) thereof\r\nmandates that conviction of a person or a company for an offence\r\nshall not relieve him or it of the obligations under sub-section (1) of\r\nSection 15 and if after expiry of fourteen days from the date of\r\nconviction, he or it still fails to give required particulars or continues\r\nto neglect or refuses to fill in and supply the particulars or to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which may extend to one thousand rupees or in the case of\r\ncompany, it may extend to `5,000/- for each day after the first\r\nduring which the failure continues. On the bedrock of the aforesaid\r\nmandate of the statute, the issue in the lis requires to be noticed.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 9. The petitioner was proceeded against initially for\r\nnegligence of furnishing information/statistics under Sub-section (1)\r\nof Section 15 of the Act. Proceedings are instituted in\r\nC.C.No.22683 of 2012. The petitioner appears on 28-05-2013 and\r\npleads guilty. On pleading guilty, a fine is imposed and it pays the\r\nfine of `6,000/- on the said date i.e., 28-05-2013. Therefore, the\r\nproceedings under sub-section (1) of Section 15 get over.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 10. After closure of the proceedings under sub-section (1) of\r\nSection 15, sub-section (2) of Section 15 kicks in. The mandate of\r\nsub-section (2) is unequivocal. The conviction of a person or a\r\ncompany for an offence under sub-section (1) will not absolve him\r\nor it of furnishing data. It is admitted fact that the petitioner did\r\nnot furnish the data even after 28-05-2013. Therefore, in terms of\r\nthe rigor of sub-section (2) of Section 15 of the Act, a company or a </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">person who does not furnish the data as required under the Act,\r\neven after conviction, would become liable to pay a fine of `5,000/-\r\nfor every day after closure of proceedings under sub-section (1) of\r\nSection 15 and if it is an individual, it is `1,000/-. The petitioner is\r\na company. The petitioner did not furnish the data even after\r\npleading guilty and imposition of fine. Therefore, a second\r\nproceeding is initiated by the respondent by filing a private\r\ncomplaint in 2015 i.e., on 28-02-2015 for offences punishable\r\nunder Section 15(2), 19, 22 and 23 of the Act. Section 15 which is\r\nrelevant is quoted hereinabove. The reminder of the provisions are,\r\nSections 19, 22 and 23 and they read as follows:\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i> “19. Penalty for other offences.—Whoever—</i></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(a) acts in contravention of or fails to comply\r\nwith any provision of this Act or any\r\nrequirement imposed under this Act; or</i></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(b) wilfully deceives or attempts to deceive any\r\nstatistics officer or any agency or any\r\nemployee thereof,\r\nshall be punishable with simple imprisonment for a term\r\nwhich may extend to six months or with a fine which may\r\nextend to two thousand rupees or, in the case of a\r\ncompany, with a fine which may extend to ten thousand\r\nrupees or with both.</span><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Section 19 of the Act deals with penalty for other offences. Other\r\noffences would be as found in sub-section (2) of Section 15 of the\r\nAct. Section 22 of the Act deals with general penalty. Whoever\r\ncommits an offence under the Act for which no penalty is prescribed\r\nelsewhere, the Act would become punishable under Section 22 of\r\nthe Act. Section 23 deals with offences by a company. Section 24\r\ndeals with cognizance of offences. Therefore, the second\r\nproceeding is initiated for violation of sub-section (2) of Section 15\r\nof the Act. A penalty that is sought to be imposed in terms of the\r\nregistered private complaint is `1.84 crores. The penalty runs from\r\n28-05-2013 till the date of filing of the complaint, close to three\r\nyears at `5,000/- day on day.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. This is the aforesaid rigor of the statute. The rigor of the\r\nstatute cannot be whittled down or diluted to suit the convenience\r\nof any person. Any supposed difficulty would provide no\r\njustification to accept the rigour of the statute, any interpretative\r\ndeparture from the plain words of the statute on an argument of\r\ndifficulty would be dangerous. It is the statute and implication of\r\nthe statute that would run for all time to come, unless amended. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. The submission of the learned counsel for the petitioner is\r\nthat, vexing any person twice for the same offence would amount\r\nto double jeopardy. This submission is noted only to be rejected\r\nowing to its fundamental fallacy, as it is not a separate proceeding\r\ntaken in general parlance for the second time for the same offence.\r\nThe proceedings are initiated under the Act. Sub-section (1) of\r\nSection 15 operates in a different circumstance and on continued\r\nviolation of sub-section (1) of Section 15, sub-section (2) of Section\r\n15 kicks in. Therefore, the two on the first blush may seem\r\nidentical. But, they are different penalties, for different actions. In\r\nthe teeth of admitted fact that the petitioner has not furnished\r\nstatistical data even till the date of registration of the complaint –\r\nthe second one, it is undoubtedly guilty albeit prima facie for the\r\naction of non-furnishing of such statistical data.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 13. Not for nothing the data is required to be furnished under\r\nthe Act. The Act was promulgated in the year 1953 and Amended\r\nin the year 2008, to facilitate collection of statistics for the purpose\r\nof information from a limited segment of an industrial sector and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the data had to be used for framing policies, meeting challenges,\r\narising out of liberalization, globalization and certain issues in a\r\nmarket driven economy in various sectors. It was, therefore, the\r\ncollection of statistical data absolutely imperative for planning the\r\neconomy and economic policies of the Country. Non-furnishing of\r\ndata by a company, though may seem to be a trivial offence but in\r\neffect, snowballs into an indelible impact on the planning of the\r\neconomic policies of a nation, as the development goals of a nation\r\nbecomes stacks. Therefore, statistical data inter alia, becomes the\r\nlife blood of economic policy making of a nation.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. India is a subscriber to the International Monetary Fund\r\n(IMF) and Special Data Dissemination Standards imposed by the\r\nIMF. The Government of India has been currently fulfilling the\r\nstandards, for which the maintenance of an advance release </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">calendar for its data programme covered under the mandate of the\r\nIMF is absolutely imperative. The data gap like the one that is the\r\nissue in the case at hand will have a cascading effect on the nodal\r\nMinistry to facilitate its implementation even for SAARC Social\r\nCharter in India. It is in public domain that Indian statistical\r\nsystem is one of the best systems in the world. The country\r\nparticipates in all the international and regional organizations of the\r\nUnited National Economic and Social Commission for Asia and the\r\nPacific on statistical compliances and international practices. It is,\r\ntherefore, the necessity of statistical data to be given by every\r\ncompany, as a responsible business houses, who have their\r\ncompany on the soil of the nation. Any negligence or indolence on\r\nthe part of any company will undoubtedly have a spiraling effect on\r\nthe economic policies of the nation, which is the driving force of any\r\nnation inter alia. It, therefore, becomes imperative for every stake\r\nholder under the Act, to furnish its statistics annually, diligently as\r\nis required under the Act or to face the wrath of Section 15 of the\r\nAct.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. In the teeth of admitted fact that the petitioner has not\r\nfurnished statistical data as required under the mandate of the Act,\r\nthe other mandate i.e., the penalty will follow as a consequence. It\r\nis for the petitioner to put up such defence before the concerned\r\nCourt where the proceedings are in an advanced stage as the\r\ncriminal case is of the year 2015, and the present petition is\r\npreferred on 23-05-2022, seven years after the commencement of\r\nproceedings. In the teeth of the mandate of the statute and its\r\nimperative need, I do not find any warrant to interfere with the\r\nimpugned proceedings.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n 17. In the result, the petition lacking in merit, stands\r\nrejected. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'a2ff70913c7a850ae683d96816e1dc6a.jpeg', 'b0c5f3e7092b8956dcfbdbfc5600b6a1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-31', 1, '', '', '2023-07-30 18:06:54', '2023-07-31 10:28:42'),
(3273, 'ZYHIFcx04MWCD3uvVPPjBcDAm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Suit for specific performance. When the defendant neither pleads nor leads evidence on hardship, Court shall decree the suit especially when the plaintiff proves readiness & willingness. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">J.R. Shanmukhappa Vs Jyotiba and others.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Regular First Appeal 100012 of 2017 decided on 11 July 2023.<o:p></o:p></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">Justice Ashok S. Kinagi and Justice Venkatesh Naik K.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">3. The brief facts of the plaintiff\'s case as under:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span lang=\"EN-US\">The plaintiff filed as suit for specific performance and contract. It is the case of plaintiff that, Defendant No.1 is the husband of defendant No.2 and defendant No.3 is the only son of defendants No.1 and 2. They are residing in joint Hindu Family comprising of defendants No.1 to 3. Defendant No.1 is the manager of the joint Hindu Family. On 01.03.2010, plaintiff entered agreement of sale with defendants for purchase of schedule property and defendants agreed to sell the suit schedule property in favour of the plaintiff. Hence on 01.03.2010, defendants executed agreement of sale in favour of plaintiff in respect of the suit properties for total sale consideration of Rs.63,75,000/- and on the same day, plaintiff paid an advance of Rs.16,00,000/- to the defendants and they have acknowledged the same and they agreed to execute the registered sale deed by the end of 30.04.2010 and the plaintiff shall pay the remaining balance amount of Rs.47,75,000/- to the defendants at the time of execution of registered sale deed. It is further contended that, plaintiff has always been ready and willing party to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">perform his part of contract, but only after the defendants have duly performed the essential terms of contract. Though plaintiff was ready and willing to perform his part of the contract with balance sale consideration, defendants refused to execute the registered sale deed in favour of the plaintiff. Hence, the plaintiff got issued legal notice to defendants calling upon them to execute the registered sale deed by receiving balance sale consideration. However, defendants denied the same and gave evasive reply, hence cause of action arose for the plaintiff to file the suit. Hence the plaintiff filed suit for specific performance of the contract based on the agreement of sale.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">4. Defendants appeared through their counsel and defendant No.1 filed written statement. Defendants No.2 and 3 filed memo to adopt written statement filed by defendant No.1. In the written statement, defendants have taken a contention that the suit filed by the plaintiff is false, frivolous and not tenable either in law or facts. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Defendants have denied the agreement of sale executed by them in favour of the plaintiff and receipt of advance sale consideration of Rs.16,00,000/- from the plaintiff; They denied the readiness and willingness as pleaded by the plaintiff and the allegation that, the defendants have breached the terms of contract. Defendants further contended that, plaintiff has filed one more suit in O.S.No.36/2011 for the relief of permanent injunction against the defendant in respect of the suit schedule property before the Civil Judge, Savanur. Therefore, the present suit is hit by Order II Rule 2 of CPC and the suit is also not maintainable. On these grounds defendants prayed for dismissal of the suit.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">9. Heard, perused the records and considered the submissions made by the learned counsels for the parties. The points that arise for our consideration are;</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><i>i. Whether the plaintiff proved that he entered agreement of sale with defendants for purchase of schedule property for a total sale consideration of Rs.63,75,000/- and as advance sale consideration, he paid a sum of Rs.16,00,000/- to the defendants and the defendants have received advance sale <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">consideration from the plaintiff and in consideration thereof, defendants have executed the agreement of sale dated 01.03.2010 in favour of the plaintiff.?</span></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><i><br></i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><i>ii. Whether the plaintiff further proved that he was always been ready and willing party to perform his part of the contract, but the defendants have breached the contract and hence is entitled for the relief as sought for?</i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">iii. Whether the judgment and decree passed by the trial Court is perverse, arbitrary and illegal and calls for interference of this Court?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\">iv. What order or decree?</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>Points No.(i) and (ii)</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">15. In the instant case, the trial Court though declined to grant specific relief as sought by the plaintiff. could have exercised discretion Under Section 20 of the Specific Relief Act. Such a discretion, however, was not to be exercised arbitrarily, but ought to have been based on sound and reasonable judicial principles. Section 20 also specified the circumstances in which the Court may properly exercise the discretion not to decree specific performance and it also specified when, in an appropriate case, a decree could be given by proper exercise of discretion. If, therefore, on a consideration of all the circumstances of the case, the trial Court thought that it would be inequitable to grant the relief prayed for, it should not have done so.</span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">16. Clause (c) of Section 16 of the Act, states that unless the plaintiff establishes his readiness and willingness to perform his part of the contract, he would <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not be entitled to a decree of specific performance. It is a settled principle of law that no evidence can be permitted to be let in the absence of averments in the plaint/pleadings vide Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491. In the said case, the Hon\'ble Supreme Court laid down the law as follows:</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><i>(i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did not arise from the pleadings and which was not the subject matter of an issue, cannot be decided by the Court.</i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>(ii) A Court cannot make out a case not pleaded. The Court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint</i></span><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><br></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">17. Further, readiness and willingness cannot be considered in a straitjacket formula; it has to be inferred on a consideration of the entire facts and circumstances of each case and the intention and conduct of the parties concerned. Even if a party to the contract is ready and has <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the requisite funds he may not be willing to perform his part of the contract and vice versa</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18. Thus, both readiness as well as willingness have to be established by the plaintiff on whom the burden is cast in a suit for specific performance of an agreement. Therefore, the question would arise as to whether the plaintiff discharged such burden in the instant case.</span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">20. The Hon\'ble Apex Court in the case of Narinderjit Singh vs. North Star Estate Promoters Ltd. reported in AIR 2012 SC 2035, held that, escalation of price is not a ground to deny specific performance of agreement to sell, when seller defendant had neither pleaded hardship nor produced any evidence to show that it will be inevitable to order specific performance of agreement. Whereas, in the instant case, the defendants neither pleaded hardship nor produced any documents or evidence to show that it will be inevitable to order specific performance of agreement. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">21. From the perusal of the written statement filed by the defendant, the defendant has neither pleaded nor lead any evidence that in case if suit for specific performance is decreed the defendant will be put to hardship. In the offence of pleadings and proof the trial <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">court ought have decreed the suit for specific performance of contract on the contrary dismissed the suit.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">22. Looking to any angle, the plaintiff proved execution of agreement of sale, and payment of advance sale consideration to the defendants. Further the plaintiff\'s has proceed readiness and willingness to perform his part of contract with the balance sale consideration and though the defendants have not pleaded and proved any hardship for performance of the contract. In view of above discussions, we answer points No.(i) and (ii) in the affirmative.</span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">Re: Point No.(iii)<span style=\"font-size: 12pt;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\">23. In view of answer to points No.(i) and (ii), we hold that, the trial court considering the oral and documentary evidence placed on record, was not justified in decreeing the suit of plaintiff in part, by refusing specific performance and order for refunding of earnest amount to plaintiff, in the facts and circumstances of the case, we <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">interfere with the impugned Judgment and decree, passed by the trail court.</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-weight: bolder;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">24. The Hon\'ble Supreme Court in case of Sri.Haridasan Vs. Anapatta Parakattu Vasudeva Kurub and others reported in 2023 SCC Online SC 36 held that, if the plaintiff is able to prove the transaction and if he is ready to perform his part of the contract, then the Court can exercise discretion under Section 20 of the Specific Relief Act and can grant specific relief. The Hon\'ble Apex Court observed in Haridasan\'s case (supra) and directed the plaintiff to pay further sum of Rs.10,00,000/- to the defendants over and above sale consideration mentioned in agreement of sale. In view of the ratio laid down in the decision cited supra, we direct the plaintiff to pay further sum of Rs.10,00,000/- to the defendants over and above sale consideration mentioned in agreement of sale, in order to do complete justice. Accordingly, we answer Point No.(iii) in the affirmative.</span><span style=\"font-size: 12pt;\"> </span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><span style=\"font-weight: bolder;\"><br></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">ORDER</span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-weight: bolder;\">i. Appeal is allowed. </span></span></p>', '2f64236951ea1c04d0582c46dd429383.jpeg', '2044808d8f7eedb48cd6a24a701d6050.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-01', 1, '', '', '2023-07-31 15:07:46', '2023-08-01 03:22:17');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3274, 'HiIAQRuj6zMt8DfJy9F8JLbJw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Court cannot suspend license of medical practitioner to practice medicine under the Contempt of Courts Act. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Gostho Behari Das Vs Dipak Kumar Sanyal and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4725 of 2023 decided on 28 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B.R. Gavai and Justice Sanjay Karol.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The question this Court must consider, is: –</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>“Whether the suspension of the Petitioner’s license to practice medicine is alien to the nature and types of punishment and penalties specified under the Contempt of Courts Act, 1971?”</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>1. The present appeal stands filed against the judgement rendered by the High Court of Calcutta, (Circuit Bench at Jalpaiguri) in MAT No. 67 of 2022, by which it upheld various orders passed by learned single Judge dated 5th , 11th, 12th and 14th July, 2022 in contempt proceedings bearing number WPCRC9 of 2022, whereby vide the order dated 11th July,2022 the Petitioner/Appellant’s licence to practice medicine, was suspended. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>3. A perusal of the record reveals that the Appellant had unauthorizedly constructed a structure which was in deviation with the plans sanctioned by the Siliguri Municipal Corporation.1 Respondent No.1(private party) filed numerous complaints against such unauthorised construction, but to no avail. Discontented by the non intervention of the Commissioner of SMC2 , and the SMC3 ­ appellant herein filed a writ petition before the High Court. Vide order dated 22nd December 2016 passed in W.P No. 11464 (W) of 2016, Respondent No. 3 was directed to have the construction so made, inspected and submit a report before the court. On the next date of hearing, that is 19th December 2017 it was directed that the representation that stood already filed before the Municipal Corporation dated 2 nd August 2007, was to be considered and a reasoned order was to be passed thereon.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. Pursuant to the above direction, an order dated 13th June 2018, directing the Respondents No. 3 to demolish the unauthorised construction, was passed. This order however, came to be quashed by the High Court observing the Commissioner SMC, not to be the competent authority and instead, only the Board of Councillors of the SMC, who could pass orders for demolition. Subsequently, vide a fresh order dated 25thJune 2019 the Board of Councillors of SMC while observing the construction to be unauthorised, ordered its demolition. In furtherance thereto, Respondent No. 2 passed an order dated 3rd August 2019 directing the demolition to be carried out.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. The grant, regulation and suspension of the licence to practice medicine is governed by the National Medical Commission Act, 2019. It facilitates the maintenance of a medical register for India and enforces high ethical standards in regards of all aspects of medical services. A statutory body namely the National Medical Commission looks after the above­mentioned activities. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>8. A perusal of the provisions of this Act as well as the now repealed, Medical Council Act, 1956 shows that the power to punish a registered medical practitioner for “misconduct” rest exclusively with the body envisaged under this Act. The Act itself provides for an exhaustive, complete mechanism to revoke the licence of a registered practitioner for professional misconduct. The same may be done after holding an inquiry and complying with the principles of audi alterum partem. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>9. The instant dispute involves the question as to whether such a punishment could be handed down under the Contempt of Courts Act, 19714 . </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. Civil contempt, with which the present case concerns itself, is defined under Section 2(b) which reads as follows:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>“2(b). “civil contempt” means wilful disobedience o any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;”</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>12. The punishment for contempt of Court is prescribed under Section 12 of the Contempt Act, which reads as under:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>“12. Punishment for contempt of court.­ (1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both:</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>Provided that the accused may be discharged or the punishment awarded may be remitted or on apology being made to the satisfaction of the court.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>(2) Notwithstanding anything contained in any other law for the time being in force, no court shall impose a sentence in excess of that specified in sub­section (1) for any contempt either in respect of itself or of a court subordinate to it.</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>17. A Bench of seven judges in Bar Council of Maharashtra v. M.V Dabholkar had observed as follows, in respect of the role of Bar Councils and the powers of disciplinary action vested within them, as under</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>“24. The scheme and the provisions of the Act indicate that the constitution of State Bar Councils and Bar Council of India is for one of the principal purposes to see that the standards of professional conduct and etiquette laid down by the Bar Council of India are observed and preserved. The Bar Councils therefore entertain cases of misconduct against advocates. The Bar Councils are to safeguard the rights, privilege and interests of advocates. The Bar Council is a body corporate. The Disciplinary Committees are constituted by the Bar Council. The Bar Council is not the same body as its Disciplinary Committee. One of the principal functions of the Bar Council in regard to standards of professional conduct and etiquette of advocates is to receive complaints against advocates and if the Bar Council has reason to believe that any advocate has been guilty of professional or other misconduct it shall refer the case for disposal to its Disciplinary Committee. A most significant feature is that no litigant and no member of the public can straightaway commence disciplinary proceedings against an advocate. It is the Bar Council of a State which initiates the disciplinary proceedings.”</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>18. This Court in Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409 (five­Judge Bench) categorically held that –</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>“39. Suspending the licence to practice of any professional like a lawyer, doctor, chartered accountant etc. when such a professional is found guilty of committing contempt of court, for any specified period, is not a recognized or accepted punishment which a court of record either under the common law or under the statutory law can impose on a contemner in addition to any of the other recognized punishments.”</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>19. A reading of sub­section (1) of Section 12 of the Act shows that the punishment prescribed therein is simple imprisonment, not exceeding six months or a fine not exceeding Rs.2,000/­Sub­Section (2) reads “notwithstanding anything contained in any other law for the time being in force” this implies that save and except the punishment provided in sub­Section (1) no other punishment can be prescribed to a person guilty of committing contempt of Court. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>20. In view of the above, this Court has no hesitation in holding that the punishment handed down to the contemnor is entirely foreign to the Act and, therefore, unsustainable. The Court, in awarding such punishment showed complete disregard for the statutory text of the Contempt of Courts Act 1971, which is abundantly clear in respect of the punishment that can be imposed thereunder.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>21. A medical practitioner guilty of contempt of Court may also be so for professional misconduct but the same would depend on the gravity/nature of the contemptuous conduct of the person in question. They are, however, offences separate and distinct from each other. The former is regulated by the Contempt of Court Act, 1971 and the latter is under the jurisdiction of the National Medical Commission Act, 2019. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23. The question raised in the instant appeal is answered in the above terms</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>26. The appeal is allowed accordingly. The pending application(s), if any, stands disposed of. No costs.</b></font></p>', '814bcceef58f71c3d5628f91dffe792c.jpeg', '04e4a8962a6da656962657b0e33fa01b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-03', 1, '', '', '2023-07-31 15:09:13', '2023-08-03 12:23:21'),
(3275, 'j1cYuxObRm8Lj2okkV1Huh9Bm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Human teeth cannot be construed as dangerous weapon or means to attract Section 326 of the Indian Penal Code though it can attract Section 325 for voluntarily causing grievous hurt. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Lakshmana Reddy Yane Lakshmi Reddy and others Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Revision Petition 100181 of 2014  decided on 20 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Anil B Katti.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Appellants/accused have challenged the modified judgment of conviction and order of sentence passed by trial Court. Whereas appellant/State has challenged the adequacy of sentence for the offences punishable under Sections 326 and 323 R/w 34 of IPC.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that on 05.02.2011 at about 9.30 P.M. while complainant was going to his agricultural land, found accused no.1 was storing mud so as to obstruct the free flow of water in canal. The complainant has asked accused No.1 not to store mud which can cause obstruction for free flow of water. However, accused No.1 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">started abusing in filthy language and by caught holding both his hands bite on the left ear lobe. Due to which upper portion was cut and fell on the ground. On account of accused No.1 biting, the left ear lobe of complainant suffered grievous injury. Accused Nos.1 and 2 have also assaulted complainant with hands. On these allegations made in the complainant, the investigating officer on competition of investigation filed charge sheet.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. Learned counsel for revision petitioner has argued that evidence on record does not meet the legal requirement in terms of Section 326 of IPC. The grievous hurt is not caused by dangerous weapon or means of teeth cannot be an instrument of weapon. In this context of the matter, it is profitable to refer <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">judgment of JAMIL HASAN VS. THE STATE reported in 1974 CRI.L.J. 867 wherein it has been observed and held that:</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>“Tooth is an instrument for cutting and serves as weapon of offence and defence and consequently, an injury caused by teeth bite would be an offence under Section 324 or 326, depending upon whether the injury is simple or grievous. The biting off the tip of the nose would be an offence under Section 326.”</i></span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. The Hon\'ble Madhya Pradesh High Court in judgment of CHHOTA @ AKASH VS. THE STATE OF MADHYA PRADESH by following the aforementioned Allahabad High Court judgment and by referring Division Bench judgment of Hon\'ble Delhi High Court in JAGAT SINGH AND ANOTHER VS STATE reported in 1984 CRIMINAL LAW JOURNAL PAGE NO.1551, which has also referred JAMIL HASAN’s case held as under.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>“The question is whether the tooth is an instrument for cutting within the meaning of Section 324 of IPC. There is difference of opinion whether the tooth is weapon of cutting”</i>.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">17. In this context, it is useful to refer the judgment of Hon’ble Apex Court in SHAKEEL AHMED VS. STATE DELHI, reported in (2004) 10 SCC 103, in order to attract penal action under Section 324 of IPC voluntarily causing hurt by </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dangerous weapon or means is required, held that human teeth are not deadly weapon even though injuries were caused grievous hurt. Therefore, conviction was altered to one under Section 325 R/w 34 of IPC as against the offence under Section 326 of IPC.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. On going through the evidence on record as referred above, virtually there is no any evidence against accused No.2 for offence for having assaulted complainantP.W.1 by means of hands and caused any voluntarily hurt. Therefore, conviction of accused No.2 for the offence punishable under Section 323 of IPC is unsustainable in law.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. In view of the reasons stated above, it has been observed and held that though accused has caused bite injury over the left ear lobe of complainant and same is grievous in nature, but in view of judgment of Hon’ble Apex Court referred above in SHAKEEL AHMED’s case human teeth are not deadly weapon even though injuries caused were grievous. The offences under Section 325 of IPC is held to be made out. In the present case also, the offence under Section 326 of IPC is not attracted and accused causing injury falls within the ambit of Section 325 of IPC.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. In the present case, the offence under Section 325 of IPC is proved against accused No.1 and same is punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to pay fine. Therefore, the imposition of sentence and fine is mandatory for proved offence under Section 325 of IPC. Looking to the facts and circumstances of the case, in my opinion, if accused No.1 is convicted and sentenced to undergo simple imprisonment for a period of three months and to pay fine of Rs.10,000/- in default of payment of fine to under go simple imprisonment of one month is ordered would meets the ends of justice. There is no evidence against accused No.2 that he has assaulted complainant by means of hands and voluntarily caused any hurt which can attract penal action in terms of Section 323 of IPC. Therefore, findings of the first appellate Court in holding accused No.2 guilty for the offence under Section 323 of IPC cannot be sustained. Therefore, in order to modify the sentence and to set-aside the conviction against accused No.2 interference of this Court is required.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The criminal revision petition No.100181/2014 filed by the accused Nos.1 and 2 and criminal appeal No.100065/2014 filed by the State are partly allowed. </b></p>', '109b1e0fe059b8a7e14b869d96827c45.jpeg', '09389dd538580f6d2c9f324a50654c9e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-01', 1, '', '', '2023-07-31 15:10:48', '2023-08-01 12:31:12');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3276, 'midatoBgHJFJXJUK0E6KRwjxw', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Blocking Input Tax Credit available in Electronic Credit Ledger under Rule 86A of the Central Goods and Services Tax Rules, 2017. Post-decisional or remedial hearing shall be granted to the person/assessee affected.  Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K-9-Enterprises Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>W.P. 104242 of 2023 decided on 27 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Vishwajith Shetty.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The petitioners in these writ petitions have assailed the orders passed by respondent no.2 blocking their Input Tax Credit (ITC) available in their Electronic Credit Ledger by exercising the powers under Rule 86A of the Central Goods and Services Tax Rules, 2017 (for short, \'the Rules of 2017\')<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioners claim that they are registered under the Karnataka Goods and Services Tax Act, 2017 (for short, \'the Act of 2017\') and they are dealing with lead, lead scrap and other ancillary business related to lead and lead scrap. According to the petitioners, they have been purchasing the goods from the customers/dealers registered under the Act of 2017 and have been complying with the necessary Rules and Regulations governing the business under the GST Regime. The petitioners claim that they have purchased goods from the persons who are registered under the Act of 2017 and there is no fraud played by the petitioners in the transaction and without even affording an opportunity of hearing, respondent no.2 has abruptly issued the impugned orders blocking the ITC available in their electronic credit ledger. Being aggrieved by the same, the petitioners are before this Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. From a reading of the heading of Rule 86A of the Rules of 2017, it is clear that the said rule can be invoked only if the amount is available in the electronic credit ledger and not otherwise. The heading of the provision of law or the marginal note can be always relied upon to clear any doubt or ambiguity in interpretation of the provision to discern the legislative intent.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. From a reading of Rule 86A of the Rules of 2017, it is seen that the first part of the Rule deals with the conditions that are required to be fulfilled in order to invoke the powers under the Rule, and the second part of the Rule provides for the consequences that would follow in case Rule 86A of the Rules of 2017 is invoked by the competent authority. As stated <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">earlier, the foremost condition to enable the competent authority to invoke Rule 86A of the Rules of 2017 would be that credit of input tax should be available in the electronic credit ledger as on the date the competent authority decides to invoke Rule 86A of the Rules of 2017. Such credit which is available in the electronic credit ledger should be the result of fraudulent transactions. Unless the competent authority is fully satisfied that there is a prima facie case for invoking Rule 86A of the Rules of 2017, he cannot invoke Rule 86A, as the consequence/result of the same would be having a direct bearing not only on the business of the registered person, but also on his credentialities. In exercise of the powers under Rule 86A of the Rules of 2017, the competent authority is entitled to disallow the registered person from debiting the ITC available in the electronic credit ledger for a limited period, and therefore, it can be said that such action taken by the competent authority is on a provisional basis. The recovery of ITC following any order passed under Rule 86A of the Rules of 2017 would be governed by Sections 73 & 74 of the Act of 2017 and in the present case, the said stage has not yet reached.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The scope and applicability of Rule 86A of the Rules of 2017 has been considered by various High Courts of our country. In Samay Alloys India Pvt. Ltd.\'s case supra, the Division Bench of Gujarat High Court at paragraphs 28 to 30 has observed as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>\"28. Rule 86A of the CGST Rules empowers the Commissioner or his subordinates to freeze the debit in the electronic credit ledger provided he has reasons to believe that the credit of input tax available in the electronic credit ledger has been fraudulently availed or is ineligible. Thus, the condition precedent is that the input tax credit should be available in the electronic credit ledger before the power under Rule 86-A is invoked by the authority. In the case on hand, it is not in dispute that the amount of input tax credit available in the electronic credit ledger as on the date of blocking of ledger was Nil. If no input tax credit was available in the ledger, the blocking of electronic credit ledger under Rule 86-A of the Rules and insertion of negative balance in the ledger would be wholly without jurisdiction and illegal. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span lang=\"EN-US\">29. On a plain reading of the opening part of Rule 86A(1) of CGST Rules, 2017, it transpires that the power conferred under Rule 86A can be </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">exercised by the Commissioner or an officer authorised by him (not below the rank of an Assistant Commissioner). Further the powers can be exercised if the following cumulative conditions are satisfied.</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>i) Credit of input tax should be available in the electronic credit ledger,</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>ii) The Commissioner of an officer authorised by him should have reason to believe that such credit has been fraudulently availed or is ineligible, iii) The reason to believe are be recorded in writing.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>30. In case the above referred conditions are satisfied, a proper officer can invoke Rule 86A. Upon invocation of Rule 86A, a proper officer can - a) Disallow debit from the electronic credit ledger for discharge of any liability under section 49 or for claim of any refund of any unutilised amount.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">b) Such restriction should be for an amount equivalent to the amount claimed to have been fraudulently availed or is ineligible.\"</span><span style=\"font-size: 12pt;\"> </span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. The Division Bench of Punjab & Haryana High Court in Rajnandini Metal Ltd.\'s case supra, in paragraph 11 has observed as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\"></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span style=\"font-size: 12pt;\">\"11. The impugned order in the present case when tested on touchstone of the provision contained in Rule 86A and the law referred herein above, we find that the reason to invoke the power conferred under Rule 86A of CGST Rules against the petitioner is an intelligence report received from Principal Chief Commissioner, Central Excise and Central Tax, Vadodara Zone regarding a racket of firms indulging in fake judicial going-on a drastic far-reaching action under Rule 86A of the CGST Rules cannot be sustained. There is no reason recorded by the Authority for exercising power under Rule 86A of the CGST Act, 2017 which would show independent application of mind that can constitute reasons to believe which is sine qua non for exercising power under Rule 86A of the CGST Rules. It is trite law that a speaking order has to be self sustainable and respondents at this stage cannot be allowed to justify the same by adding </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">reasons to it by filing additional affidavits. From the reading of the order, it is evident that it is bereft of any material or \'reason to believe\' that the petitioner is guilty of fraudulent transaction or is ineligible under Section 16 of the CGST Act.\"</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13. From the aforesaid, it is evident that the powers under Rule 86A of the Rules of 2017 can be invoked or exercised by the competent authority only in the event he has reason to believe that the credit of input tax available in electronic credit ledger have been fraudulently availed or the assessee is ineligible for the same. The powers under Rule 86A of the Rules which are vested with the competent authority is subject to the satisfaction recorded by the said authority on he forming an opinion to the effect that the electronic credit ledger has been fraudulently availed or that the assessee is ineligible to avail the benefits of the same in situations where the Rule provides for the competent authority to invoke the same.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. The material on record would go to show that prima facie there is something which the Revenue has noticed, and therefore, an investigation is in progress and pending investigation, preventive measure has been taken by the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">competent authority to block the ITC account of the petitioners and this measure is a temporary one and Rule 86A of the Rules of 2017 itself provides that on expiry of the period of one year, the restriction imposed under the Rule shall seize to have the effect from the date of imposition of such restriction. The Division Bench of the High Court of Bombay in Dee Vee Projects Ltd.\'s case supra, while answering the question whether Rule 86A of the Rules of 2017 permits blocking of electronic credit ledger, at paragraph 31 has observed as under:</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\"31. A careful perusal of the above referred provisions would show that there is no specific mention therein about the blocking of the ECL and what is stated is that the Competent Authority may not allow debit of an amount equivalent to an amount determined or found to be fraudulently or wrongly shown as credit available in the ECL for discharge of any liability under Section 49 or any equivalent refund of an unutilized amount of credit in the ECL. Disallowing debit of an amount to the ECL is nothing but blocking of the ECL. But, such blocking of the ECL cannot be for an amount which is more than the amount found to be fraudulently or wrongly availed of. The answer to the second question, therefore, is that rule 86-A of Rules, 2017 </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">does permit dis-allowance of debit of an amount to the electronic credit ledger only to the extent of fraudulent or wrong availment of credit in the ECL and such disallowance can be done through blocking of the ECL to the extent of the amount fraudulently or wrongly shown as lying in credit in the ECL.\"</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">17. The Bombay High Court in the aforesaid case principally held that, the competent authority before invoking the power under Rule 86A of the Rules of 2017, is required to satisfy himself that the two important pre-requisites of the Rule is fulfilled before the power of blocking the electronic credit ledger or before disallowing of debit of ITC found in the electronic credit ledger is exercised.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18. The first requisite of the Rule which is required to be considered by the competent authority is with regard to the basis of material available before he taking any action for blocking of electronic credit ledger. The second pre-requisite is of recording the reasons in writing for invoking the powers under Rule 86A of the Rules of 2017. Unless the aforesaid two pre-requisites are fulfilled, the competent authority cannot </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">invoke the powers under Rule 86A of the Rules of 2017 for the purpose of disallowing the debit of the determined amount to the electronic credit ledger or to block the electronic credit ledger even to the extent of amount fraudulently or wrongly availed by the petitioners/assessee.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>19. Considering the necessity of fulfillment of the aforesaid two pre-requisites by the competent authority before exercising his power under Rule 86A, which is manifest by a bare reading of the said provision of law, the Division Bench of the Bombay High Court in Dee Vee Projects Ltd.\'s case supra at pargraph 33 has observed as under:</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\"33. It must be noted that the power under rule 86-A which in effect is the power to block ECL to the extent stated earlier is drastic in nature. It creates a disability for the tax payer to avail of the credit in ECL for discharge of his tax liability, which he is otherwise entitled to avail. Therefore, all the requirements of rule 86-A would have to be fully complied with before the power thereunder is exercised. When this rule requires arriving at a subjective satisfaction which is evident from the use of words, \"must have reasons to believe\", the satisfaction must be reached on the basis of some </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">objective material available before the authority. It cannot be made on the flights of ones fancies or whims or imagination. The power under rule 86-A is an administrative power with quasi-judicial hues exhibited in aforestated twin pre-requisites and has civil consequences for a tax payer in the sense, it acts as an obstruction to right of a tax payer to utilize the credit available in his ECL. Any administrative power having quasi-judicial shades, which brings civil consequences for a person against whom it is exercised, must answer the test of reasonableness. It would mean that the power must be exercised fairly and reasonably by following the principles of natural justice.\"</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. In so far as the second pre-requisite of Rule 86A of the Rules is concerned which is of recording of reasons in writing, in the present case, the competent authority has observed that the petitioners/assessee have availed ITC from registered persons who are found to be not in existence or not conducting any business from any place and the registration obtained by them was in contravention of the provisions of the Statute. The details of the input tax availed by such tax payer is also given in the impugned order.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. The Bombay High Court in Dee Vee Projects Ltd.\'s case supra at paragraphs 36 to 38 has observed as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>\"36. The second pre-requisite of rule 86-A is of recording of reasons in writing. It comes with the use of the word \"may\", which, in our opinion, needs to be construed as conveying an imperative command of the rule maker, and that means, reasons must be recorded in writing in each and every case. This is because of the fact that any <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">order which brings to bear adverse consequences upon the person against whom the order is passed, must disclose the reasons for it so that the person affected thereby would know why he is being made to suffer or otherwise he would not be able to seek appropriate redressal of his grievance arising from such an order. Right to know the reasons behind an administrative order having civil consequences is a well embedded principle forming part of doctrine of fair play which runs like a thread through the warp and weft of the fabric of our Constitutional order made up by Articles 14 and 21 of the Constitution of India. In the case of Andhra Bank V/s. Official Liquidator : (2005) 3 SCJ 762, the Apex Court has held that an unreasoned order does not subserve the doctrine of fair play. It then follows that the word, \"may\" used before the words, \"for the reasons recorded in writing\" signifies nothing but a mandatory duty of the competent authority to record reasons in writing.</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">37. There is another reason which we would like to state here to support our conclusion just made. The power under rule 86-A is of enabling kind and it is conferred upon the Commissioner for public benefit and, therefore, it is in the nature of a public duty. Essential attribute of a public duty is that it is exercised only when the circumstances so </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">demand and not when they do not justify its performance (see Commissioner of Police, Bombay Vs. Gordhandas Bhanji : AIR (39) 1952 Supreme Court 16). It would then mean that justification for exercise of the power has to be found by the authority by making a subjective satisfaction on the basis of objective material and such satisfaction must be reflected in the reasons recorded in writing while exercising the power.</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">38. Examined in the light of above principles of law, the provisions made in rule 86-A would require the Competent Authority to first satisfy itself, on the basis of objective material, that there are reasons to believe that credit of input tax available in ECL has been fraudulently or wrongly utilised and secondly to record these reasons in writing before the order of disallowing debit of requisite amount to the ECL or requisite refund of unutilised credit, is passed or otherwise the order of blocking the ECL under rule 86-A would be unsustainable in the eye of law. This is also the view taken in the case of M/s HEC India LLP Vs. Commissioner of GST and Central Excise Audit-II and another (WA No.2341 of 2021 dated 16.09.2021), which commends to us. Then, as stated earlier, a remedial hearing followed by </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">confirmation or revocation of the order would be necessary.\"</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">23. If the orders impugned in the present writ petitions are examined in the aforesaid background, the two basic prerequisites for invoking Rule 86A of the Rules prima facie appears to have been fulfilled by respondent no.2. Considering the fact that the impugned orders have been issued based on the field visit report by the Assistant State Tax Officer of Goa, it cannot be said that respondent no.2 had no reason to believe the material made available to him. On the basis of such material, respondent no.2 has also observed that the petitioners/assessees have availed the ITC from fraudulent persons who are not in existence and not conducting any business and their registration itself was fraudulent. The particulars of input tax availed from such persons as found in the Electronic Credit Ledger is also furnished by respondent no.2 in the impugned orders and the ITC has been blocked only to the extent of the amount availed from those fraudulent persons/entities.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>24. This Court, however, cannot ignore the fact that the power under Rule 86A of the Rules of 2017 is drastic in nature and in the event of the said power being exercised against an assessee, it disentitles him to avail of the credit in the electronic credit ledger for discharge of his tax liability which he is otherwise entitled to avail. Therefore, serious civil consequences will have to be faced by the assessee. The order passed under Rule 86A of the Rules of 2017 would act as an obstruction to the right of the assessee to utilize the credit available in his electronic credit ledger. In a given case, it may be subsequently found that the basis on which the Rule was invoked by the competent authority was followed or provided without holding a thorough investigation in the matter and in such an event, the assessee would be put to unnecessary hardship, serious civil consequences and also his credentialities would be at stake. When the impugned order is taken into consideration based on this context, the question that arises for consideration would be whether the power under Rule 86A of the Rules of 2017 can be exercised without complying the principles of natural justice. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. The question whether the availment of ITC is a vested right, was considered by the Division Bench of Calcutta High Court in Basanta Kumar Shaw\'s case supra and it has been held that the right conferred on the assessee is regulated by the provisions of the Act and it is a concession granted under the Statute and unless and until the assessee complies with all the conditions scrupulously, he would not be entitled to avail the ITC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>26. The High Court of Allahabad in M/s. R.M.Dairy Products case supra, appreciating the scope of Rule 86A of the Rules of 2017 has observed that the Rule does not contemplate any recovery of tax from an assessee and it only provide in certain situations and upon certain conditions being fulfilled, specified amount may be held back and be not allowed to be utilized by the assessee towards discharge of his/its liabilities on the outward tax or towards refund. It creates a lien without actual recovery being made or attempted. It is in this background in the said case, it has been held that Rule 86A of the Rules of 2017 is only a provision to secure the interest of the Revenue and not a recovery provision to be exercised upon fulfillment of co<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">nditions, and therefore, the Division Bench of Allahabad High Court held that there cannot be any violation of the principles of natural justice since the legislative enactment was being performed in a particular way as it was required to.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">29. The power under Rule 86A of the Rules of 2017 is of an enabling kind and it is conferred on the competent authority to secure the interest of the Revenue. The said power is exercised by the competent authority on the basis of the material made available to him pending investigation, and therefore, as stated </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">earlier, the order passed under Rule 86A of the Rules of 2017 is virtually provisional in nature. When an assessee who faces serious hardship and civil consequences as a result of the said orders, raises a plea that invoking of the drastic power under Rule 86A was unwarranted and the same was done without holding a proper enquiry and the action was initiated based on a report which is not sound and proper, it becomes imperative to hear the assessee on these aspects of the matter. It is in this background, I am inclined to follow the principle stated by the High Court of Bombay in Dee Vee Projects Ltd.\'s case supra, wherein it is held that given the nature of power provided under Rule 86A though the statute does not provide for a personal hearing before passing any order under the said Rule, it has to be read into the provisions of the said Rule which is not expressly provided therein, so that a post-decisional or remedial hearing could be granted to the person/assessee affected by blocking of his electronic credit ledger.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30. Considering the scope, applicability and the manner of power exercised by the competent authority under Rule 86A of the Rules of 2017, it may not be feasible for the authority to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">have a normal pre-decisional hearing and since the nature of order passed under Rule 86A is provisional, it would be reasonable to consider granting a post-decision hearing to the petitioners which would comply with the principles of natural justice. Though post-decision hearing is not a substitute for pre-decisional hearing, in situations where pre-decisional hearing is likely to frustrate the interest and purpose of the Statute, the mechanism of post-decisional hearing will be the only alternative. The effect of the order under Rule 86A of the Rules of 2017 would be that the petitioners/assessees would not be entitled to avail the input tax credit available in their Electronic Credit Ledger for a temporary period and otherwise, the petitioners/assessees are free to carry on their business by effecting payment of the requisite amount of tax into their account. Therefore, even after orders are passed under Rule 86A of the Rules of 2017, the petitioners/assessees can carry on their business activities.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. Learned AGA has submitted that pursuant to the impugned orders, steps have been taken for issuing show cause notices to the petitioners/assessee as provided under <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Sections 73 & 74 of the Act of 2017. Prior to any steps being taken for taking action under Sections 73 & 73 of the Act of 2017 against the petitioners which is the actual recovery of ITC from the assessee, I am of the view that post-decisional hearing is required to be given to the petitioners by respondent no.2/competent authority who shall hear the petitioners/assessees and pass a reasoned order, thereafter, either confirming or revoking the order impugned which is provisional in nature.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">32. Under the circumstances, the writ petitions are disposed of directing respondent no.2 to afford an opportunity of postdecisional hearing to the petitioners, who shall be permitted to file their objections along with the relevant supporting documents/material and on consideration of the same, respondent no.2/competent authority shall pass a reasoned order in compliance of the requirement of Rule 86A of the Rules of 2017. For the said purpose, the petitioners are directed to appear before respondent no.2 on 03.08.2023 and within two weeks thereafter, respondent no.2/competent authority is directed to pass orders, and depending upon the outcome of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">such orders, if necessary, further action shall be taken against the petitioners as provided under Sections 73 & 74 of the Act of 2017.</span></b></p>', '39f24f71cd0241ebb24a5d96efb80d57.jpeg', 'c54bdd31c02958f4ad6742afedd43da0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-01', 1, '', '', '2023-07-31 15:12:12', '2023-08-01 10:27:06'),
(3277, 'YmBntbBMGHN4S2Z8OIuffYqny', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Public Premises (Eviction of unauthorised Occupants) Act is not a bar for a suit for permanent injunction against dispossession except in accordance with law. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>K.S Kumar Vs Chief Executive Officer Hasan Zilla Panchayath and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 12086 of 2022 decided on 27 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.R. Krishna Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This petition by the petitioner - plaintiff in O.S. No.144/2021 is directed against the impugned order dated 23.09.2021 passed on I.A. No.IV by the Civil Judge and J.M.F.C., Belur, (for short, \'Trial Court\') whereby the said application filed by the petitioner – plaintiff for temporary injunction restraining respondent No.2 – Executive Officer, Belur Taluka Panchayath from dispossessing the petitioner from suit schedule premises without following due process of law was rejected by the Trial Court and confirmed by the Senior Civil Judge and JMFC at Belur, Hassan (for short, \'First Appellate Court\') in M.A. No.18/2021 dated 08.04.2022.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The material on record discloses that the petitioner – plaintiff instituted the aforesaid suit against the respondents – defendants for permanent injunction and other reliefs in relation to the suit schedule immovable property.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. It is the specific contention of the petitioner – plaintiff that the respondent No.2 – defendant No.2 was attempting to illegally and highhandedly dispossess the petitioner – plaintiff from the suit schedule premises without following the due process of law and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">consequently the respondent No.2 – defendant No.2 was liable to be restrained by an order of temporary injunction.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. The suit and the said application having been contested / opposed by the respondent No.2 – defendant No.2, the Trial Court proceeded to pass the impugned order rejecting I.A. No.IV which was affirmed by the First Appellate Court in M.A. No.18/2021 dated 08.04.2022, aggrieved by which the petitioner is before this Court by way of the present petition.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. A perusal of the material on record would indicate that both the Trial Court and the First Appellate Court have come to the incorrect conclusion that Section 16 of the Karnataka Public Premises (Eviction of unauthorised Occupants) Act, 1974 (for short, \'Act of 1974) acts as a bar for a suit for permanent injunction filed by the petitioner – plaintiff against the respondents – defendants. In this context, a plain reading of the said provision will indicate that the jurisdiction of the Civil Court is ousted / barred only in relation to proceedings for eviction of any person who is in unauthorized occupation of any premises or for recovery of arrears of rent or costs etc., and the said provision of Section 16 do not bar / prohibit a suit for permanent injunction which is a possessory <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">remedy and not barred / prohibited before the competent Civil Court which has jurisdiction and authority of law under Section 9 of the Code Of Civil Procedure, 1908 (for short, \'CPC\') and failure on the part of the Trial Court as well as First Appellate Court to appreciate this has resulted in erroneous conclusion. At any rate, in view of the undisputed fact that the petitioner – plaintiff is in actual and physical possession of the suit schedule premises, notwithstanding the fact that the respondents were to claim that the possession of the petitioner – plaintiff was illegal and unauthorized, the only option available to the respondents is to take seek eviction of the petitioner from the suit schedule premises only by taking recourse to the due process of law including initiating proceedings under the aforesaid Act of 1974. Under these circumstances, the impugned orders passed by the Trial Court and the First Appellate Court deserves to be set aside.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i. Writ Petition is hereby allowed. </b></span></p>', 'd8c618288fd4f8b9496aedc82b88967b.JPG', '3127a991525ceb63e63c4fecc266ffdd.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-01', 1, '', '', '2023-07-31 15:13:56', '2023-08-01 08:11:57');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3278, 'l7sscXus5sgWw5ycmToYKSrvW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Private agreement/settlement between the parties cannot override the Standing Order under the Industrial Employment (Standing Orders) Act, 1946. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bharatiya Kamgar Karmachari Mahasangh Vs M/s. Jet Airways Ltd.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4404 of 2023 decided on 25 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Abhay S. Oka and Justice Sanjay Karol.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The present appeal arises out of the judgment of the High Court of Bombay in Writ Petition No. 2657 of 2017, wherein it confirmed the award dated 30.03.2017 passed by the Central Government Industrial Tribunal (hereinafter referred to as ‘CGIT’) rejecting the demand of the Appellant-Union for reinstatement with full back wages.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2.&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The brief facts involved in the case are as follows: The respondent company operates a commercial airline, flying aircraft&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for transporting passengers and cargo. The Appellant represents around 169 workmen temporarily engaged on a fixed-term contract by the Respondent in various cadres like loader-cumcleaners, drivers and operators. The Appellant contends that the workmen were treated as temporary despite completing 240 days in service in terms of the Model Standing Order provided under the Bombay Industrial Employment (Standing Orders) Rules, 1959 (hereinafter referred to as “Bombay Model Standing Order”) and despite the nature of the work being permanent and regular. The Trade Union had raised a charter of demands which, after negotiations, resulted in a settlement dated 02.05.2002. In the said charter of demands, Bhartiya Kamgar Sena gave up the demand for the grant of permanency and a comprehensive settlement dated 02.05.2002 was signed as a package deal that conferred many benefits on the workmen who gave up the said demand. The Respondent Company claims that the workers are not entitled to permanency as per the settlement dated 02.05.2002 entered between the Union and Company. The workmen raised disputes and the matter landed up for adjudication. However, the CGIT, in its award dated 30.03.2017, while answering a reference framed the issue, whether the Union\'s demand for re-employment&nbsp;</span><span style=\"font-size: 12pt;\">/reinstatement with full back wages of these 169 workmen in service of that first party is just and proper and answered it in the negative. Relying upon Section 25-H of the Industrial Disputes Act, 1947 it was held that there is no retrenchment since the nonrenewal of fixed term contract did not amount it to be so as provided under Section 2(oo)(bb) of the said Act. Thus, there was no question of re-employment of the concerned workmen.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>3. After hearing learned counsel of the parties at great length, the following issues arise for our consideration:&nbsp;</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 1rem;\">-&nbsp;</span>Which is the Appropriate Authority empowered to issue the Standing Order(s) under the Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as ‘The Act’)?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>- Whether private agreement/settlement between the parties would override the Standing Order?<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ISSUE I</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. The Act applies to every industrial establishment wherein one hundred or more workmen are employed or were employed on any day of the preceding twelve months. The expression \'appropriate&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">government\' is defined by Section 2(b) of the Act to mean in respect of industrial establishments under the control of the Central Government or Railway Administration, or a major port, mine or oilfield, the Central Government, and in all other cases, the State Government. Section 2(e) defines the expression \'industrial establishment\'. Under Section 15 of the Act, the appropriate Government is empowered to make rules for carrying out the purposes of the Act. In exercise of the powers conferred by Section 15, the then State of Bombay had issued the Bombay Industrial Employment (Standing Orders) Rules, 1959. Insofar as those establishments in respect of which the appropriate Government is the Central Government, the Industrial Employment (Standing Orders) Central Rules, 1946, stand framed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5. Insofar as the Respondent Company is concerned, the appropriate Government is clearly not the Central, but the State Government since the Respondent is not, within the meaning of Section 2(b), under the control of the Central Government. The present case falls under the latter part of the section; thus, the appropriate Government means the State Government. The Bombay Model Standing Order would be applicable to the parties</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ISSUE II</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. This Court has succinctly laid down the scope of The Act in U.P. SEB v. Hari Shankar Jain, 1 (3-Judge Bench) that it was specially designed to define the terms of employment of workmen in industrial establishments, to give the workmen a collective voice in determining the terms of employment and to subject the terms of employment to the scrutiny of quasi-judicial authorities by the application of the test of fairness and reasonableness. It is an Act giving recognition and form to workmen\'s hard-won and precious rights. We have no hesitation in saying that it is a special Act expressly and exclusively dealing with the schedule-enumerated conditions of service of workmen in industrial establishments</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. While discussing the letter and spirit of The Act, this Court in Sudhir Chandra Sarkar v. Tata Iron and Steel Co. Ltd.2 (3- Judge Bench) held that:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>“11. …it was an act to require employers in industrial establishments to formally define conditions of employment under them. The preamble of the Act provides that it is expedient to require employers in industrial establishments to determine with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them…… The Act was a legislative response to the laissez-faire rule of hire and fire at sweet will. It was an attempt at imposing a statutory contract of service between two parties unequal to negotiate on the footing of equality. …. The intendment underlying the Act and the provisions of the Act enacted to give effect to the intendment and the scheme of the Act leave no room for doubt that the Standing Orders certified under the 1946 Act become part of the statutory terms and conditions of service between the employer and his employee and they govern the relationship between the parties.”</i><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. In Western India Match Co. v. Workmen3 (2-Judge Bench), the Court further held that:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“7. The terms of employment specified in the Standing Order would prevail over the corresponding terms in the contract of service in existence on the enforcement of the Standing Order…..</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>8. If a prior agreement inconsistent with the Standing Orders will not survive, an agreement posterior to and inconsistent with the Standing Order should also not prevail….. ...</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>10. In the sunny days of the market economy theory, people sincerely believed that the economic law of demand and supply in the labour market would settle a mutually beneficial bargain between the employer&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and the workmen. Such a bargain, they took it for granted, would secure fair terms and conditions of employment to the workman. This law they venerated as natural law. They had an abiding faith in the verity of this law. But the experience of the working of this law over a long period has belied their faith.</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>11. …It plainly follows from Sections 4, 10 and 13(2) that the inconsistent part of the special agreement cannot prevail over the Standing Order. As long as the Standing Order is in force, it is binding on the Company as well as the workmen. To uphold the special agreement would mean giving a go-by to the Act\'s principle of three-party participation in the settlement of terms of employment. So we are of the opinion that the inconsistent part of the special agreement is ineffective and unenforceable.”</i></span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. Placing reliance on WIMCO (supra), this court in Rasiklal Vaghajibhai Patel v. Ahmedabad Municipal Corpn. 4 (2-Judge Bench) held that any condition of service, if inconsistent with certified standing orders, would not prevail, as the certified standing orders would have precedence over all such agreements. Any settlement, the employee Union enters into with the Employer would not override the Model Standing Order, unless it is more beneficial to the employees.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Coming to the facts of the case, the CGIT noted that the letters issued by the airlines (Respondent herein) to the workmen aimed to appoint them for a fixed term. Even though their appointment orders, issued from time to time, extended their&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appointment period, however, on expiry of such period, their employment was supposed to end. It is argued that they carried out work for more than 240 days, which was of a regular and permanent nature, but since the appointment was for a fixed-term contract, it would be of no consequence even though they did work for 240 days or more. The Tribunal observed that the airlines had no option but to not renew the fixed-term contracts of the workmen due to a change in Government policy.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">13. The High Court, while upholding the order of the CGIT, held that the mere completion of 240 days would not entitle the members to claim permanency under the Model Standing Order given the settlement and, more specifically, Clause 18 thereof. It further observed that the Model Standing Order is not a statutory provision but, at best, a statutorily imposed condition of service that a settlement or award can alter.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. Thus, it becomes pertinent to reproduce and analyse relevant Clauses of the Bombay Model Standing Order, which reads as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“Clause 4C- A badly or temporary workman who has put in 190 days\' uninterrupted service in the aggregate in any establishment of seasonal nature or 240 days \'uninterrupted service\' in the aggregate in any other establishment during a period of preceding twelve calendar months, shall be made permanent in that establishment by order in writing signed by the Manager, or any person authorised in that behalf by the Manager, irrespective of whether or not his name is on the muster roll of the establishment throughout the period of the said twelve months.”</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“Clause 32: Nothing contained in these Standing orders shall operate in derogation of any law for the time in force or to the prejudice of any right under the contract of service, custom or usage or an agreement settlement or award applicable to the establishment.”</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. A cumulative reading of aforesaid clauses reveals that a workman who has worked for 240 days in an establishment would be entitled to be made permanent, and no contract/settlement which abridges such a right can be agreed upon, let alone be binding. The Act being the beneficial legislation provides that any agreement/contract/settlement wherein the rights of the employees are waived off would not override the Standing Orders.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>17. Learned counsel for the Respondent has appraised this Court of the insolvency proceedings initiated against the Respondent Company under the Insolvency and Bankruptcy Code, 2016. However, we refrain from commenting thereupon, for it does not bear any consequence to the present lis and neither was it a subject matter of adjudication before the courts/authorities below.&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. Given the above discussions, we allow the appeal holding the Appellant-Union entitled to all benefits per the Bombay Model Standing Order. The award dated 30.03.2017 passed by CGIT in Reference No. CGIT-2/56 of 2013 and the judgment dated 10.01.2018 passed by the High Court of Judicature at Bombay in Writ Petition No. 2657 of 2017 affirming the same are quashed and set aside.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. No costs.&nbsp;</b></span></p>', 'f673daf994c271f1532037691d7e1bb1.JPG', '977843592a9271cc4b0f66ef1a98d883.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-01', 1, '', '', '2023-08-01 11:51:16', '2023-08-01 06:30:54'),
(3272, 'ax6VyitEqmqBxx5Gt9ROqKfMv', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978. Alleged act of  encroachment of granted land does not fall within the definition of transfer under Section 3(e) of the Act. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Chikkayya Devadiga Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 20129 of 2016 decided on 22 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Sachin Shankar Magadum.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The captioned writ petition is filed by the petitioner assailing the order of 3rd respondent – Deputy Commissioner, who has ordered for eviction thereby directing the petitioner to vacate and hand over the land in question in favour of 4th respondent. The said order is under challenge.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Facts leading to the case are as under;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Petitioner claims that he is the absolute owner of house site granted to him by the Government through the Tahasildar, Kundapur comprised in Sy. No.219/1B measuring 5 guntas. The petitioner claimed that house site was granted to him under Section 94(c) of the Karnataka Land Revenue Act.&nbsp;<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. The learned counsel appearing for the petitioner reiterating the grounds urged in the petition would vehemently argue and contend that the Deputy Commissioner erred in exercising jurisdiction under the provisions of \"PTCL Act\" and therefore, he would contend that the impugned order is not sustainable as the same is passed without jurisdiction and authority. Placing reliance on the Division Bench judgment rendered in the case of SMT.INDUMATHI HUNSAGI VS. DEPUTY COMMISSIONER, CHICKMAGALUR AND OTHERS the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">learned counsel appearing for the petitioner would contend that the controversy relating to encroachment of a granted land is no more res-integra and the same is given quietus by the Division Bench of this Court. Referring to the above said judgment, he would contend that the Division Bench has clearly held that the case of an encroachment does not fall within the definition of transfer defined under Section 3(e) of the \'PTCL Act\' and therefore, the disputed questions of facts relating to encroachment cannot be adjudicated by a Quasi Judicial Authority under the provisions of the \'PTCL Act\'. He has also placed reliance on the judgment passed by the Co-ordinate Bench of this Court in the case of HANUMANTHAIAH VS N.RAMEGOWDA AND OTHERS2 . Referring to the principles laid down therein, he would contend that to attract the provisions of Sections 4 and 5 of PTCL Act, possession has to be traceable through transactions like sale, gift, mortgage etc. Therefore, he would conclude his arguments by contending that if possession is not traced through any transaction, then such a possession has to be&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">termed as a possession of a trespasser, which does not fall within the definition of Transfer Act defined Section 3(e). Therefore, he would contend that if there is no transfer of granted land, the provisions of \'PTCL Act\' are not attracted and therefore, the order passed by the 3rd respondent – Deputy Commissioner is patently erroneous and is liable to be set-aside.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. Learned counsel appearing for the 4th respondent – grantee however repelling the contentions advanced by the learned counsel appearing for the petitioner has also placed reliance on the judgment rendered by the Division Bench of this Court in the case of M.BHOOMI REDDY VS. THE SPECIAL DEPUTY COMMISSIONER, BENGALURU DISTRICT AND OTHERS3 . Referring to the law laid down by the Division Bench, he would contend that the Sub section (3) of Section 5 of \'PTCL Act\' covers all disputes relating to possession of a granted land. Placing reliance on the said judgment, he would point out that if granted land is in possession of a person, other than a original&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">grantee, such a possession has to be deemed to be in contravention of Section 4 of \'PTCL Act\' and therefore, the grantee is entitled to seek recourse to the provisions of the \'PTCL Act\' and the Authorities are bound to take action and restore possession if such a contravention is complained. He has also placed reliance on the judgment rendered by the Co-ordinate Bench of this Court in the case of VEERASWAMY VS. SPECIAL DEPUTY COMMISSIONER4 . Referring to Section 5(3) and Section 3(1)(e), he would point out that even in absence of instrument of a granted land, a person found to be in possession of a granted land has to be presumed that such possession is in contravention of the provisions of the PTCL Act and also in contravention of condition of grant and therefore, he would contend that the person in possession of such a granted land is not entitled to seek protection. Therefore, he would submit that the order passed by the 3rd respondent – Deputy Commissioner is strictly in consonance with the principles laid down by the Division Bench in the case of M.Bhoomi Reddy (cited&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">supra) and therefore, he would contend that no interference is warranted and therefore, prays to dismiss the writ petition.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The short point that needs consideration at the hands of this Court is;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>Whether the Authorities having regard to the facts and circumstances of the case have authority to invoke jurisdiction under the provisions of the PTCL Act and decide the rival claims of the parties herein?&nbsp;</i><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">10. The facts are found to be quite peculiar. Petitioner is resisting the restoration petition by asserting title over the property comprised in Sy. No.219/1B measuring 5 cents. While respondent No.4 – Grantee claimed that there is a grant in his favour in Sy. No.206/2 and Sy. No.206/8. Therefore, in the present case on hand, the petitioner is not asserting any right over the property&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which is granted to respondent No.4. As can be seen from the claim made by 4th respondent, there is an allegation that the petitioner has encroached over a granted land. In the present case on hand, there are no rival claims. The petitioner is asserting ownership over some other land and respondent No.4 is also asserting that the Authorities have granted land in Sy. No.206/2 and Sy. No.206/8. If these facts are taken in to consideration, then I am of the view that the respondent No.2 – Deputy Commissioner erred in entertaining a petition at the instance of 4th respondent seeking restoration of the petition land. The definition of transfer as indicated in Section 2(e) clearly indicates that Section 4 comes into play provided there is a transfer by means of gift, exchange, mortgage, lease or any other transactions, which squarely fall within the definition of a transfer.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. In the present case on hand, the petitioner and 4th respondent are asserting title over their respective properties. The petitioner claims that the Government through Tahasildar has allotted a site in the land bearing</span><span style=\"font-size: 12pt;\">&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Sy. No.219/1B. His claim is that he has constructed a residential house with the financial assistance of Rs.15,000/- under Housing Scheme namely Rajiv Gandhi Vasathi Yojane. Since disputed question of facts are involved and since the allegations in regard to encroachment cannot be established before a Quasi Judicial Authority, more particularly, under the provisions of \"PTCL Act\", I am of the view that 4th respondent could not have maintained a petition under Section 5 of \"PTCL Act\". Section 4 of the Act prohibits transfer of land covered by the Act. Where a person has encroached granted land, it cannot be said that he has acquired it by transfer. Therefore, the provisions of the PTCL Act are not at all applicable to the present case on hand. Even if the encroachment is established, 4th respondent has to be relegated to work out his remedy before the competent Civil Court and not under the provisions of the PTCL Act. In the present case on hand, in fact, the allegation in regard to encroachment is yet to be decided and ascertained before a competent Civil Court. The 3rd respondent – Deputy Commissioner has no materials on&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">record, which was found to be conclusive to arrive at a conclusion that the petitioner is guilty of encroaching over a granted land. Unless the parties approached the Civil Court and there is survey of all the lands and there is a conclusive survey report demarcating the lands held by the petitioner and the lands held by respondent No.4 and unless there is a conclusive report indicating that there is an encroachment, the 4th respondent merely on apprehension could not have approached the 2nd respondent – Assistant Commissioner by invoking the provisions of the PTCL Act. All these significant details are not dealt by the 3rd respondent –Deputy Commissioner. When both the parties are supporting their claim based on a title documents, the 3rd respondent - Deputy Commissioner erred in passing an order for restoration and such an act is obviously found to be in excess of jurisdiction.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. Therefore, the order passed by respondent No.3 – Deputy Commissioner is patently erroneous and the same is liable to be set-aside.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition is allowed.&nbsp;</b></span></p>', 'c8634255bb69f0d34bc5779896819824.JPG', '2484c9a91852b7515f1623dba216d815.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-07-31', 1, '', '', '2023-07-31 13:42:26', '2023-07-31 13:42:26'),
(3281, 'ee5HeWoH3pS8XqClfpmUAW0Gb', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Second wife is not entitled to retirement benefits of her deceased husband. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shakuntaka and others Vs Nutan Kumar and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>CRP 138 of 2016 decided on 28 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The factual matrix of case of the petitioners in P&SC\r\nNo.21/2003 that the first petitioner is the wife of\r\nNarasimhamurthy and petitioner Nos.2 and 3 are the children of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Narasimhamurthy and petitioners in P&SC No.27/2003 first\r\npetitioner claims that she is the wife of Narasimhamurthy and\r\nsecond petitioner is the son of Narasimhamurthy and having\r\nperused the pleadings of both the P&SC Nos.21 and 27 of 2003\r\nclaims that they are the wife and children of Narasimhamurthy.\r\nThe petitioners in P&SC No.21/2003 examined the first petitioner\r\nas PW1 before the trial Court and got marked the documents\r\nExs.P1 to P34 and petitioners in P&SC No.27/2003 examined the\r\nfirst petitioner as RW1 and also examined one witness as RW2\r\nand got marked document Exs.R1 to R18. The trial Court having\r\nappreciated both oral and documentary evidence allowed P&SC\r\nNo.21/2003 and petition filed by the petitioners in P&SC\r\nNo.27/2003 is rejected. However, held that petitioner Nos.1 to 3\r\nin P&SC No.21/2003 and petitioner No.2 in P&SC No.27/2003\r\nare entitled to equal share in the service benefits of deceased\r\nNarasimhamurthy and they are entitled to succession certificate\r\nand also ordered that petitioner No.1 i.e. Smt.Shakuntala is\r\nentitled to claim the appointment on compassionate ground on\r\nbehalf of the death of Narasimhamurthy, as she is his nearest\r\nlegal heir. Being aggrieved by the judgment of the trial Court, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the petitioner in P&SC No.27/2003 filed two appeals. The same\r\nis numbered as P&SC Appeal No.1 and 2 of 2012 i.e. second\r\npetitioner in P&SC No.27/2003, since the first petitioner was no\r\nmore and in both the appeals, the petitioners in P&SC\r\nNo.21/2003 are the respondents and Zilla Panchayath also made\r\nas respondent No.4 in P&SC Appeal No.2/2012 and KGID as\r\nrespondent No.5. The first appellate Court on re-appreciation of\r\nboth oral and documentary evidence comes to the conclusion\r\nthat the first petitioner in P&SC No.27/2003 is the wife and\r\nsecond petitioner is the son and hence the appeal filed by said\r\nNutan Kumar is allowed and counter appeal filed by the\r\ncontesting respondent Nos.1 to 3 is rejected. Consequently,\r\nP&SC No.27/2003 is partly allowed and P&SC No.21/2003 is\r\nrejected and hence, these two revision petitions are filed by the\r\npetitioners challenging the orders.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. Having heard the respective counsel, the points that\r\nwould arise for consideration by this Court are:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>i) Whether the revision petitions filed by the\r\nrevision petitioners requires to be allowed and\r\nto set aside the order passed in P&SC\r\nNo.27/2003 recognizing the Nutan Kumar also\r\nentitled for a share in the service benefits of\r\ndeceased Narasimhamurthy?\r\n</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>ii) Whether the order impugned passed in P&SC\r\nAppeal No.1/2012 and 2/2012 requires to be\r\nset aside and committed an error in recognizing <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">only N.Nutan Kumar is entitled for service\r\nbenefits?</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. This Court would like to refer the judgment of this\r\nCourt in the case of SMT.NAGARATHNAMMA Vs.\r\nSMT.VENKATALAKSHMAMMA AND OTHERS reported in AIR 2000\r\nKAR. 181, a single bench of this Court in MSA No.372/1998 vide\r\norder dated 3.1.2000 held that, under Section 16 of Hindu\r\nSuccession Act, children born from both of his wives would be\r\nentitled to succeed to retiral benefits in equal shares. It is\r\nobserved that, his second wife however performed during life\r\ntime of his spouse cannot be deemed to be validly performed <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">marriage. But, consequently, his second wife would not be\r\nentitled to succeed to his pensional benefits. But held that the\r\nchildren born to even second wife also entitled for retiral benefits\r\nof the deceased and the said principle is also applicable to the\r\nfacts of the case on hand.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16. It is also important to note that the Division Bench in\r\nthe case of K.SANTHOSHA Vs. THE KARNATAKA POWER\r\nTRANSMISSION CORPORATION LIMITED, BANGALORE AND\r\nOTHERS reported in 2022 (1) Kar.L.J. 154, while dealing with\r\nthe matter on appointment of compassionate ground considering\r\nSection 16 of the Hindu Marriage Act, 1955 comes to the\r\nconclusion that prohibition of discrimination on the grounds of\r\nreligion, race, caste, sex or place of birth and equality of\r\nopportunity in matters of public employment, right of a child\r\nborn out of a void marriage held that, when the Parliament\r\nunder Section 16 of the Act, has treated legitimate and\r\nillegitimate children on par and given them equal status,\r\nRegulation 2(1)(b) cannot restrict the expression family in\r\nrelation to deceased employee to mean only his or her legally</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">wedded spouse and children jointly living with him. It is further\r\nheld that no child is born in this world without a father and a\r\nmother and child has no role to play in his or her birth. Hence,\r\nthere can be illegitimate parents, but no illegitimate children and\r\nthe children born to even void marriage also cannot choose the\r\nparents. The law is evolved having considered that the children\r\nborn to a second wife have not committed any sin for the act of\r\ntheir parents.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">17. This Court also would like to rely upon the judgment of\r\nthe Apex Court in the case of RAMESHWARI DEVI Vs. STATE OF\r\nBIHAR AND OTHERS reported in (2000)2 SCC 431, wherein also\r\ndiscussed with regard to the pension and family pension,\r\nchildren of second marriage and observed that the deceased\r\nemployee, a Hindu, contracting second marriage during\r\nsubsistence of his first marriage, children born out of the second\r\nmarriage, according to the Hindu Marriage Act, 1956, were\r\nlegitimate though the marriage itself was void. It is also\r\nobserved that High Court therefore holding that the minor\r\nchildren of second marriage were entitled to the family pension </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">but not the second widow and even observed with regard to the\r\nfact that it was amply established on the basis of oral and\r\ndocumentary evidence that the deceased employee and the\r\nsecond spouse were living as husband and wife, cohabitation for\r\na long period gives rise to a strong presumption of wedlock and\r\nfurther held that presumption of marriage from long period of\r\ncohabitation, and when the Supreme Court also confirmed the\r\nsame and held that the children born to the second marriage\r\nwere entitled to family pension.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18. This Court also would like to refer the recent judgment\r\nof the Apex Court in the case of UNION OF INDIA AND\r\nANOTHER Vs. V.R.TRIPATHI reported in (2019) 14 SCC 646,\r\nwherein discussed with regard to the compassionate\r\nappointment. But even considered the children born to the\r\nsecond wife also entitled for compassionate appointment and\r\nheld that under Section 16 does not in any manner affect the\r\nprinciples declared in Section 16(1) in regard to the legitimacy of\r\nthe child. The children born from void or voidable marriage and\r\ntheir status is legitimate children and also considered the earlier </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">judgment of Tripahti case and law is evolved even with regard to\r\nthe compassionate appointment also that children born to\r\nsecond wife entitled for compassionate appointment. It is also\r\nimportant to note that the Apex Court held that children do not\r\nchoose their parents, even children born to a void marriage also\r\nlegitimate and legitimacy of such child is a matter of public\r\npolicy to protect him or her from consequences of illegitimacy.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n 19. Having perused the principles laid own by the\r\njudgments of the Apex Court and also the judgment of this Court\r\nand also in Tripathi Case, the Apex Court held that under Section\r\n16, child has legitimate, it would not be open to state to exclude\r\nsuch children from the benefit, such condition of exclusion is\r\narbitrary and ultra-vires and again the Supreme Court states\r\nthat children do not choose their parents and having considered\r\nthe said judgment and also the material on record it is born out\r\nfrom the records, that the marriage of Lakshmi and\r\nNarasimhamurthy was held in 1979 and this Court also\r\nconsidered the school records and also the documents at Ex.R1\r\ni.e. progress records of Sri.Nutan Kumar and also taken note of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the child born to second wife i.e. Smt.Shakuntala, trial Court\r\nrightly considered that the children of Narasimhamurthy through\r\nfirst wife and second wife are also entitled for the service\r\nbenefits, but the revisional Court reverse the same only held\r\nthat Nutan Kumar is entitled and ignored the legitimacy of other\r\ntwo children i.e. petitioners 2 and 3 in P&SC No.21/2003 and\r\ncomes to the conclusion that they are not entitled and in view of\r\nthe law involved from 2000 onwards, since this Court held in the\r\njudgment referred supra that they are entitled for retiral benefits\r\nand also subsequent judgment of the Apex Court and also the\r\njudgment of Division Bench of this Court, it is very clear that\r\nchildren will not choose their parents and also such people have\r\nnot committed any sin of become the children of second\r\nmarriage of a person who contracted the second marriage during\r\nthe subsistence of first marriage and both the Courts have given\r\nthe finding that the subsequent marriage is a second marriage,\r\nbut only revisional Court comes to the conclusion that the other\r\nchildren born to the second wife are not entitled and the same\r\nrequires to be set aside and hence, I pass the following.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n i) The revision petitions filed by the petitioners are hereby\r\nallowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6d21e146729bb09bb09c240d17e3831f.JPG', '7afeb8779cff91741667caebc7a63d40.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-02', 1, '', '', '2023-08-01 13:05:40', '2023-08-02 08:07:25');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3282, 'AvQKAQXfhx1eqXI9mm0uuthCg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Prosecution cannot seek second stint of Police custody long after the accused remanded to judicial custody. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Emmanuel Michael Vs Union of India.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 17961 of 2021 decided on 28 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Facts, in brief, germane are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> On receipt of certain information on 17-12-2020 at 3.00 p.m.,\r\nthe respondent/Narcotic Control Bureau of Government of India <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">seized 610 gms. of MDMA from the foreign Post Office,\r\nChamarajpet, Bengaluru. After the said seizure, again on\r\n18-12-2020 on suspicion arrested accused No.1, a lady near\r\nSahakarnagar Post Office, Bengaluru. The suspicion leads to the\r\npetitioner and the petitioner is also taken into custody on the same\r\nday i.e., 18-12-2020. Both accused Nos. 1 and 2 were interrogated,\r\ntheir statements were recorded and on a remand application dated\r\n19-12-2020 police custody was taken, up to 23-12-2020. After\r\ninterrogation, the petitioner was by an order dated 23-12-2020\r\nremanded to judicial custody.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 3. On the investigation continuing, another accused would\r\nemerge, Accused No.3. He is arrested alleging that he is the\r\nconsumer of the drugs that were supplied from the hands of the\r\npetitioner on more than 100 occasions. Accused No.3 is produced\r\nbefore the Court with a remand application to hand him over to\r\njudicial custody. Later, accused No.3, on the ground that he was a\r\nconsumer of drugs was released on bail. On the same day i.e.,\r\n20-05-2021 the officers of the respondent filed another application\r\nbefore the concerned Court invoking Section 167 (2) of the Cr.P.C. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">seeking policy custody of the petitioner for three days. The\r\napplication comes to be allowed by the concerned Court granting\r\npolice custody of the petitioner for three days and directed them to\r\nproduce the petitioner back to Court on 24-05-2021. It is,\r\ntherefore, the Police again got custody of the petitioner between\r\n21-05-2021 and 23-05-2021. During this period the police\r\nrecorded statements of the petitioner insofar as the link in the chain\r\nof events, to the acts of accused No.3. After the said recording of\r\nstatement by another application on 24-05-2021 the petitioner was\r\nremanded back to judicial custody. During the trial the statements\r\nthat the petitioner made between 21-05-2021 and 23-05-2021\r\nwere sought to be pitted against him. It is immediately thereafter\r\non 27-09-2021 the petitioner has knocked at the doors of this Court\r\nin this petition calling in question the said custody that was taken\r\nbetween 21-05-2021 and 23-05-2021 and statements recorded\r\nthereon.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. I have given my anxious consideration to the submissions\r\nmade by the respective learned counsel and have perused the\r\nmaterial on record. In furtherance whereof, the issues that fall for\r\nconsideration are :–\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>(i) Whether the prosecution was entitled to a second\r\nstint of Police custody long after the petitioner\r\nbeing remanded to judicial custody?\r\n</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>(ii) Whether the evidence/statements recorded\r\nduring the second stint of Police custody will have\r\nto be eschewed completely by this Court in\r\nexercise of its jurisdiction under Section 482 of\r\nthe CrPC?</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ISSUE NO.1:\r\n“Whether the prosecution was entitled to a second\r\nstint of Police custody long after the petitioner being\r\nremanded to judicial custody?”</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The afore-narrated facts lie in a narrow compass. The issue\r\nconcerns a point of law. The petitioner was arrested on 19-12-2020\r\nand on a remand application of the same date was granted Police\r\ncustody up to 23-12-2020 i.e., for five days. During the period\r\nbetween 19-12-2020 and 23-12-2020, the petitioner was enough\r\ninterrogated which drew the respondent to file an application before\r\nthe concerned Court seeking remand to judicial custody. The\r\nconcerned Court, in terms of its order dated 23-12-2020, remands\r\nthe petitioner to judicial custody and, therefore, he was housed in\r\nthe jail.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The submission of the learned counsel for the\r\nrespondent/NCB is that the respondent is entitled to have 15 days\r\nof Police custody and it had only four days at the outset and\r\nremaining 11 days, it is entitled to have such Police custody at any\r\ntime and, therefore, there is nothing illegal about the Police custody\r\nbeing granted by the concerned Court. This submission is noted\r\nonly to be repelled as it suffers from a fundamental fallacy. It is no\r\ndoubt true that the prosecution can avail custody of an accused for\r\nfifteen days in a crime registered, for offence punishable under any\r\npenal provision, except for offences punishable under the UAPA,\r\nwhere custody is 30 days. Barring UAPA, for every other offence,\r\nthe Police custody, in all, is 15 days. When is the question? This\r\nquestion need not detain this Court for long or delve deep into the\r\nmatter as it is no longer res integra. The Apex Court in the case of\r\nCENTRAL BUREAU OF INVESTIGATION v. ANUPAM J.\r\nKULKARNI1\r\n has held as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span lang=\"EN-US\">“7. The learned Additional Solicitor-General\r\nsubmitted that the observations made by Hardy, J.\r\nin Mehar Chand case [(1969) 5 DLT 179] would indicate </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that during the investigation of the same case in\r\nwhich the accused is arrested and is already in\r\ncustody if more offences committed in the same case\r\ncome to light there should be no bar to turn over the\r\naccused to police custody even after the first period\r\nof fifteen days and during the period of ninety days\r\nor sixty days in respect of the investigation of the cases\r\nmentioned in provisos (a)(i) and (ii) respectively. It may be\r\nnoted firstly that the Mehar Chand case [(1969) 5 DLT 179]\r\nwas decided in respect of a case arising under the old\r\nCode. If we examine the background in enacting the new\r\nSection 167(2) and the proviso (a) as well as Section 309\r\nof the new Code it becomes clear that the legislature\r\nrecognised that such custody namely police, judicial\r\nor any other custody like detaining the arrested\r\nperson in Nari Sadans etc. should be in the whole for\r\nfifteen days and the further custody under the\r\nproviso to Section 167 or under Section 309 should\r\nonly be judicial. In Chaganti Satyanarayana v. State of\r\nA.P. [(1986) 3 SCC 141 : 1986 SCC (Cri) 321] this Court\r\nexamined the scope of Section 167(2) provisos (a)(i) and\r\n(ii) and held that the period of fifteen days, ninety days or\r\nsixty days prescribed therein are to be computed from the\r\ndate of remand of the accused and not from the date of his\r\narrest under Section 57 and that remand to police\r\ncustody cannot be beyond the period of fifteen days\r\nand the further remand must be to judicial custody.\r\nThough the point that precisely arose before this\r\nCourt was whether the period of remand prescribed\r\nshould be computed from the date of remand or from\r\nthe date of arrest under Section 57, there are certain\r\nobservations throwing some light on the scope of the\r\nnature of custody after the expiry of the first remand of\r\nfifteen days and when the proviso comes into operation.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>11.... <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The learned Additional Solicitor-General\r\nsubmitted that as a result of the investigation carried\r\non and the evidence collected by the police the\r\narrested accused may be found to be involved in\r\nmore serious offences than the one for which he was\r\noriginally arrested and that in such a case there is no\r\nreason as to why the accused who is in magisterial\r\ncustody should not be turned over to police custody\r\nat a subsequent stage of investigation when the\r\ninformation discloses his complicity in more serious\r\noffences. We are unable to agree. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">However,\r\nwe must clarify that this limitation shall not apply to\r\na different occurrence in which complicity of the\r\narrested accused is disclosed. That would be a\r\ndifferent transaction and if an accused is in judicial\r\ncustody in connection with one case and to enable\r\nthe police to complete their investigation of the other\r\ncase they can require his detention in police custody\r\nfor the purpose of associating him with the\r\ninvestigation of the other case. In such a situation he\r\nmust be formally arrested in connection with other\r\ncase and then obtain the order of the Magistrate for\r\ndetention in police custody. The learned Additional\r\nSolicitor-General however strongly relied on some of\r\nthe observations made by Hardy, J. in Mehar Chand\r\ncase [(1969) 5 DLT 179] extracted above in support\r\nof his contention namely that an arrested accused\r\nwho is in judicial custody can be turned over to\r\npolice custody even after the expiry of first fifteen\r\ndays at a subsequent stage of the investigation in the\r\nsame case if the information discloses his complicity </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in more serious offences. We are unable to agree\r\nthat the mere fact that some more offences alleged\r\nto have been committed by the arrested accused in\r\nthe same case are discovered in the same case would\r\nby itself render it to be a different case.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>A literal construction of Section\r\n167(2) to the effect that a fresh remand for police\r\ncustody of a person already in judicial custody during\r\ninvestigation of a specific case cannot under any\r\ncircumstances be issued, would seriously hamper the\r\nvery investigation of the other case the importance\r\nof which needs no special emphasis. The procedural\r\nlaw is meant to further the ends of justice and not to\r\nfrustrate the same. It is an accepted rule that an\r\ninterpretation which furthers the ends of justice\r\nshould be preferred. It is true that the police custody\r\nis not the be-all and end-all of the whole\r\ninvestigation but yet it is one of its primary\r\nrequisites particularly in the investigation of serious\r\nand heinous crimes. The legislature also noticed this\r\nand permitted limited police custody. The period of\r\nfirst fifteen days should naturally apply in respect of\r\nthe investigation of that specific case for which the\r\naccused is held in custody. But such custody cannot\r\nfurther held to be a bar for invoking a fresh remand\r\nto such custody like police custody in respect of an\r\naltogether different case involving the same\r\naccused.”</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Apex Court, in the afore-quoted case, holds that an\r\naccused when detained in Police custody can be kept for a\r\nmaximum period in such custody for 15 days either pursuant to a\r\nsingle order or more than one. When such orders are for lesser\r\nnumber of days, but on the whole such custody cannot be beyond\r\n15 days and further remand to facilitate investigation can only be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">by detention of the accused in judicial custody. The Apex Court was\r\nclear that once 15 days custody is over, further interrogation of any\r\naccused can only be in judicial custody where the order of Police\r\ncustody earlier was by a single order or more than one.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. The aforequoted judgment is further followed by the Apex\r\nCourt in GAUTAM NAVLAKHA v. NATIONAL INVESTIGATION\r\nAGENCY2\r\n wherein the Apex Court was answering a question with\r\nregard to the effect of judicial custody and Police custody. The Apex\r\nCourt holds as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\"103..... <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The period of custody begins not from\r\nthe time of arrest but from time the accused is first\r\nremanded ((1986) 3 SCC 141). Police custody can, in\r\na case falling under the Cr.P.C. (not under the UAPA),\r\nbe given only during the first 15 days ((1992) 3 SCC\r\n141). During the first 15 days no doubt the Court\r\nmay order judicial custody or police custody. No\r\ndoubt the last proviso to Section 167(2) provides\r\nthat detention of a woman under eighteen years of\r\nage, the detention shall be authorised to be in the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">custody of a remand home or recognised social\r\ninstitution.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>136.... <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The\r\nquestion would arise that all else being answered in\r\nfavour of the Appellant whether his case is\r\ninconsistent with the police remand initially granted\r\nfor 7 days on 15.04.2020 and further extended on\r\n21.04.2020 which was, no doubt, cut short on\r\n25.04.2020. The point to be noted is police custody\r\ncan be given only for 15 days and that too, the first\r\n15 days, ordinarily. In the case of persons accused of\r\noffences, under UAPA, the maximum period of police\r\ncustody is 30 days. If the case of the appellant is to\r\nbe accepted then it must be consistent with the\r\nsubsequent proceedings, namely, police custody vide\r\norders dated 15.04.2020 and 21.04.2020. In other\r\nwords, Section 167 of the Cr.P.C. as modified by\r\nSection 43(D)(2) of UAPA, contemplates that remand\r\nto police custody on production of the accused can be\r\ngiven only during the first 30 days from the date of\r\nproduction and it advances the case of the\r\nrespondent that remand on production of the\r\naccused before the Special Judge took place only\r\nwith the production of the accused on 15.04.2020. If\r\nthe remand in the case of the appellant took place in\r\nthe year 2018 then it would be completely\r\ninconsistent with the remand to police custody well\r\nbeyond the first 30 days of the remand in the year\r\n2018.”</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Apex Court interpreting Section 167 of the Cr.P.C.\r\ncategorically holds that undoubtedly custody under Section 167 is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">understood as ordinarily meaning ‘Police custody’ as well as ‘Judicial\r\ncustody’. The period of custody begins not from the time of arrest\r\nbut from the time when the accused is first remanded. The Police\r\ncustody can, under the said provision, if it is not under UAPA, be\r\nonly during the first 15 days. During the first 15 days, the Court\r\nmay order judicial custody or Police custody. Following the\r\njudgment in the case of ANUPAM J.KULKARNI (supra) the Apex\r\nCourt clearly holds that Police custody that has been granted after\r\ncompletion of 15 days of Police custody was illegal which would\r\nmean the second stint of Police custody was illegal. It has to be in\r\nthe first 15 days of arrest of the accused. These judgments settle\r\nthe issue with regard to when the Police custody has to be granted.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. The Apex Court in its later judgment in the case of\r\nCENTRAL BUREAU OF INVESTIGATION v. VIKAS MISHRA3\r\ndoubts the decision in ANUPAM J.KULKARNI and observes that it\r\nhas to be given a re-look, but does not distinguish it. The Apex\r\nCourt has observed as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\"15. It is true that in Anupam J. Kulkarni\r\n[CBI v. Anupam J. Kulkarni, (1992) 3 SCC 141: 1992\r\nSCC (Cri) 554], this Court observed that there cannot\r\nbe any police custody beyond 15 days from the date\r\nof arrest. In our opinion, the view taken by this Court\r\nin Anupam J. Kulkarni [CBI v. Anupam J. Kulkarni,\r\n(1992) 3 SCC 141: 1992 SCC (Cri) 554] requires\r\nreconsideration.\"</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Therefore, it is now a settled principle of law that second stint\r\nof Police custody for interrogation, in the same case, long after the\r\naccused being in judicial custody is unavailable. Police custody, on a\r\nremand application, can be made and granted for the first 15 days\r\nof arrest of the accused. Once the accused is remanded to judicial\r\ncustody seeking Police custody repeatedly on the ground that total\r\n15 days custody is not yet over is a right that is unavailable to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">prosecution.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12. In the light of the judgment rendered by the Apex Court,\r\nas quoted supra, I have no hesitation to hold that the second stint\r\nof Police custody, in the same case, of the petitioner between\r\n21-05-2021 and 23-05-2021 is illegal, and the statements recorded\r\nduring the said period would become statements recorded during\r\nthe course of illegal custody.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ISSUE NO.2:\r\n“Whether the evidence/statements recorded during the\r\nsecond stint of Police custody will have to be eschewed\r\ncompletely by this Court in exercise of its jurisdiction under\r\nSection 482 of the CrPC?”</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. The issue now is, as to what happens to such statements\r\nrecorded during illegal custody, so to say “what happens to the\r\nfruit of a poisonous tree”. The tree is now declared to be\r\npoisonous as the second stint of Police custody is declared to be\r\nillegal. The issue again need not detain this Court for long. The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Apex Court in the case of STATE v. N.M.T. JOY IMMACULATE4\r\nhas considered this very issue and delineated as follows:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b><i>\"14.... <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">It has also been held that the\r\ninvestigation conducted by P-1 and P-4 police with\r\nreference to the accused is not bona fide and false\r\nrecords have been created to implicate the accused.\r\nThe question then arises whether the High Court was\r\nright in making the aforesaid observations, even if it\r\nis assumed that the order dated 6-11-2001 granting\r\npolice custody was illegal (though we have held\r\nabove that the aforesaid order being a purely\r\ninterlocutory order, no revision lay against the same\r\nand the High Court committed manifest error of law\r\nin entertaining the revision and setting aside the said\r\norder). The admissibility or otherwise of a piece of\r\nevidence has to be judged having regard to the\r\nprovisions of the Evidence Act. The Evidence Act or\r\nthe Code of Criminal Procedure or for that matter any\r\nother law in India does not exclude relevant evidence\r\non the ground that it was obtained under an illegal\r\nsearch and seizure.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b><i>15.2. This being the law, Direction (b) given by\r\nthe High Court that the confession and alleged\r\nrecovery has no evidentiary value is clearly illegal\r\nand has to be set aside. The effect of the confession\r\nand also the recovery of the incriminating article at\r\nthe pointing out of the accused has to be examined\r\nstrictly in accordance with the provisions of the\r\nEvidence Act.”</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b>The Apex court holds that the Court exercising jurisdiction under\r\nSection 482 of the Cr.P.C. or revision cannot eschew evidence even\r\nif it is evidence secured during illegal arrest or illegal custody of the\r\naccused. The Court was answering whether a revisional Court\r\njurisdiction under Section 397 of the Cr.P.C. could eschew the\r\nevidence that was recorded during the allegedly illegal arrest. The <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Apex Court holds that revisional Court or even the Court under\r\nSection 482 would not eschew any evidence, as it would be for the\r\naccused before the concerned Court to urge all these points and the\r\nconcerned Court to take note of the fact of the statements recorded\r\nduring the illegal custody. Therefore, this Court under Section 482\r\nof the Cr.P.C. would not venture into declaring that the statement\r\nrecorded during second stint of Police custody be eschewed in its\r\nentirety which is akin to statements of an illegal act. No doubt it is\r\nillegal, but exercising jurisdiction to hold it as illegal and completely\r\neschewing it, is not the power that is available at the hands of this\r\nCourt. As observed hereinabove, the fruit of a poisonous tree\r\nshould be tasted and tested only before the concerned Court.\r\nTherefore, the issue is neither answered in favour of the petitioner,\r\nnor in favour of the respondent, but the issue is to be taken note of\r\nand answered by the concerned Court. Therefore, leaving open all\r\ncontentions qua the statements recorded between 21-05-2021 and\r\n23-05-2021, this petition deserves to be allowed to the said extent.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b> (i) The Writ Petition is allowed in part. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f5f2af0dc5abd53ea04c2a2395119253.jpeg', '9b457a74088a55395e2ebe66de06893f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-02', 1, '', '', '2023-08-01 13:48:47', '2023-08-02 12:06:52'),
(3283, '9OBavZ20RNvc0ZO7GQdUqHKkL', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Section 5 of the Limitation Act can be invoked in an appeal filed under Section 37 of the Arbitration and Conciliation Act. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>National Highways Authority of India and others Vs Meerashivalingaiah and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.F.A 1402 of 2023 decided on 28 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The appellants have filed an application under Section 5 of\r\nthe Limitation Act to condone the delay of 270 days in filing the\r\nabove appeal and in support of an application, an affidavit is\r\nsworn to that, the judgment passed by the Hon’ble District\r\nJudge, Mandya, is against the provisions of law and the\r\njudgment was passed on 30.3.2021 and a copy of the judgment\r\nwas sent for obtaining the legal opinion. After receipt of the\r\nopinion, it is observed that the impugned judgment passed was\r\nerroneous and it requires to be challenged and hence decided to\r\nchallenge the impugned order by filing the above appeal.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. Having heard the appellants’ counsel and also the\r\ncounsel appearing for the respondents and also the grounds\r\nurged in the application and the statement of objections, the\r\npoints that would arise for consideration of this Court are:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>i) Whether Section 5 of the Limitation Act can be\r\ninvoked in an appeal filed under Section 37 of the\r\nArbitration and Conciliation Act, 1996 to condone the\r\ndelay?\r\n</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>ii) Whether the appellants have made out the ground\r\nand sufficient cause to condone the delay?</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\r\niii) What order? </i><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Point No.1: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Having heard the respective counsel, the\r\nmain contention of the respondents counsel that the maximum\r\nperiod of limitation is 90 days and additional 30 days, in all 120\r\ndays is provided under the Act itself to file an appeal.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Admittedly, this appeal is filed against the dismissal of\r\nthe suit filed under Section 34 of the Act confirming the award of\r\nthe Arbitrator and hence, the present appeal is filed under\r\nSection 37 of the Act. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. No doubt, the judgments of this Court and the Apex\r\nCourt in the case of Bhimashankar Sahakari Sakkare\r\nKarkhane Niyamita arising out of dismissing the suit filed\r\nunder Section 34 of the Act on the ground of Condonation of\r\ndelay and Apex Court also comes to the conclusion that High\r\nCourt has not committed any error in dismissing the appeal in\r\ncoming to the conclusion that the maximum period allowed to\r\nfile the appeal is within 120 days. Having perused Section 34 of\r\nthe Act, when an application for setting aside of arbitral award, it\r\nis clear that recourse to a Court under an arbitral award may be\r\nmade only by an application for setting aside such award, in\r\naccordance with sub-sections (2) and (3) of Section 34 of the\r\nAct. The grounds also set out to challenge the same and the\r\nproviso under Section 34(3) of the Act is very clear that an\r\napplication for setting aside may not be made after three months\r\nhave elapsed from the date on which the party making that\r\napplication had received the arbitral award or, if a request had\r\nbeen made under Section 33, from the date on which that\r\nrequest had been disposed of by the arbitral tribunal and further\r\nproviso is made that if the Court is satisfied that the applicant <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was prevented by sufficient cause from making the application\r\nwithin the said period of three months, it may entertain the\r\napplication within a further period of thirty days, but not\r\nthereafter.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>10. Reading of sub-clause (3) of Section 34 of the Act and\r\nalso further proviso, the maximum period is 120 days and the\r\nvery statue itself makes clear that it could be challenged within\r\nthree months and thereafter also after 30 days, in total 120 days\r\nand no dispute with regard to the fact that the principles laid\r\ndown in the judgment of this Court as well as the Apex Court\r\nreferred supra, the maximum period is 120 days, wherein the\r\nappeal was not entertained, since an application was filed before\r\nthe District Court under Section 34 of the Act, since there was a\r\ndelay of more than 120 days and hence, the same is dismissed.\r\n</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. But in the case on hand, application filed under Section\r\n34 of the Act was considered and decided the same on merits\r\nand dismissed, thereafter an appeal is filed under Section 37 of\r\nthe Act.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Having considered Section 37-1(c) of the Act, it is clear\r\nthat, setting aside or refusing to set aside the arbitral award\r\nunder Section 34 of the Act and an appeal lies where an order is\r\npassed under Section 34. But no any exclusion of Section 5 of\r\nthe Limitation Act, but in Section 34 it is very clear that the\r\nmaximum period provided is 90 + 30 days, in all 120 days, but\r\nno specific limitation is made provided under Section 37 of the\r\nAct while filing an appeal.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 13. Having read Section 43 of the Act, it is very clear that\r\nLimitation Act, 1963 shall apply to arbitrations as it applies to\r\nproceedings in Court and further sub-clause (3) is very clear\r\nthat, where an arbitration agreement to submit future disputes\r\nto arbitration provides that any claim to which the agreement\r\napplies shall be barred unless some step to commence arbitral\r\nproceedings is taken within a time fixed by the agreement, and a\r\ndispute arises to which the agreement applies, the Court, if it is <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of opinion that in the circumstances of the case undue hardship\r\nwould otherwise be caused, and notwithstanding that the time so\r\nfixed has expired, may on such terms, if any, as the justice of\r\nthe case may require, extend the time for such period as it\r\nthinks proper.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n Sub-clause (4) is also very clear that where the Court\r\norders that an arbitral award be set aside, the period between\r\ncommencement of the arbitration and the date of the order of\r\nthe Court shall be excluded in computing the time prescribed by\r\nthe Limitation Act, 1963, for the commencement of the\r\nproceedings (including arbitration) with respect to the dispute so\r\nsubmitted. Hence it is clear that, Limitation Act, 1963 shall\r\napply to arbitration as it applies to proceedings in the Court.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">14. The Apex Court also in the judgment referred by the\r\nrespondents’ counsel himself in the case of Government of\r\nMaharashtra (Water Resources Department) represented\r\nby Executive Engineer Vs. Borse Brothers Engineers and\r\nContractors Private Limited with regard to Section 37,\r\nlimitation period for filing appeal under Section 37 of the Act, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">both in respect of cases falling under Commercial Courts Act as\r\nwell as the Arbitration and Conciliation Act, 1996, in respect of\r\ncases not falling under Commercial Courts Act, formulated the\r\npoint with regard to Section 5 of the Limitation Act. Since issues\r\ninvolved in the appeal, whether limitation period for filing an\r\nappeal under Section 37 of the Act, would governed by limitation\r\nperiod provided under Section 34 of the Act, or limitation period\r\nprescribed under Article 137 of the Limitation Act or limitation\r\nperiod prescribed under Articles 116 and 117 of the Limitation\r\nAct or limitation period prescribed under Section 131-A of the\r\nCommercial Courts Act, 2015.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 15. The third issue was framed whether delay in filing the\r\nappeal under Section 37 of the Act, can be condoned and if so,\r\nto what extent and whether application under Section 5 of the\r\nLimitation Act to condone the delay in filing the appeal under\r\nSection 37 of the Act, is excluded by the scheme of the\r\nCommercial Court’s Act. The Apex Court having considered these\r\nissues held that Section 37 of the Act, when read with Section 43\r\nthereof, makes it clear that the provisions of the Limitation Act</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">will apply to appeals that are filed under Section 37 of the Act.\r\nThis takes us to Articles 116 and 117 of the Limitation Act, which\r\nprovides for a limitation period of 90+30 days, depending upon\r\nwhether the appeal is from any other Court to a High Court or a\r\nintra-High Court Appeal, there can be no doubt whatsoever that\r\nSection 5 of the Limitation Act will apply to the aforesaid\r\nappeals, both by virtue of Section 43 of the Act and by virtue of\r\nSection 29(2) of the Limitation Act and the same is also\r\nreiterated in paragraph 23. Paragraph 23 of the judgment\r\nreferred supra is extracted here below:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i> “23. Section 37 of the Arbitration Act, when\r\nread with Section 43 thereof, makes it clear that the\r\nprovisions of the Limitation Act will apply to appeals\r\nthat are filed under Section 37. This takes us to\r\nArticles 116 and 117 of the Limitation Act, which\r\nprovide for a limitation period of 90 days and 30\r\ndays depending upon whether the appeal is from\r\nany other court to a High Court or an intra-High\r\nCourt appeal. There can be no doubt whatsoever\r\nthat Section 5 of the Limitation Act will apply to the\r\naforesaid appeals, both by virrtue of Section 43 of\r\nthe Arbitration Act and by virtue of Section 29(2) of\r\nthe Limitation Act.”</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. Having read Section 37 of the Act, no limitation is\r\nprescribed to file an appeal as in case of an application to be\r\nfiled under Section 34 of the Act, wherein specific limitation is\r\nprovided for three months + 30 days, total 120 days. But no\r\nsuch specific limitation is provided in Section 37 of the Act for\r\nfiling an appeal and also Section 43 of the Act, which I have\r\nextracted above, is also very clear that the provisions of the\r\nLimitation Act will apply to appeals that are filed under Section\r\n37 of the Act. Hence, the judgments which have been relied\r\nupon by the counsel for the respondents, Bhimashankar\r\nSahakari Sakkare Karkhane Niyamita, wherein challenge was\r\nmade only with regard to Section 34 of the Act and limitation as\r\nprovided in the very Section itself, but not in an appeal and\r\nSection 43 of the Act makes it clear that the provisions of the\r\nLimitation Act will apply to appeals that are filed under Section\r\n37 of the Act and Apex Court having discussed the same and\r\neven framing the issues involved between the parties in the said\r\nappeal also, in paragraph 23 which has been extracted is very\r\nclear that there can be no doubt whatsoever that Section 5 of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Limitation Act will apply to the aforesaid appeals, both by\r\nvirtue of Section 43 of the Arbitration Act and by virtue of\r\nSection 29(2) of the Limitation Act and hence, I do not find any\r\nforce in the contention of the respondents’ counsel that Section\r\n5 of the Limitation Act cannot be invoked and hence, I held that\r\nSection 5 of the Limitation Act could be invoked while filing an\r\nappeal under Section 37 of the Act and hence, I answer the point\r\nNo.1 as affirmative.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Point No.2: Now the question before this Court is with\r\nregard to, whether sufficient cause has been shown by the\r\nappellants to condone the delay?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">18. Having perused the certified copy of the order it is\r\nclear that though the judgment was passed on 30.3.2021,\r\ncertified copy was obtained on 2.3.2023 and no material is\r\nplaced on what date earlier certified copy was taken and sent to\r\nthe Department for opinion and nothing is stated in the affidavit\r\nand affidavit is very bald except stating that when the file was\r\nsent to opinion and opinion was given that order was not correct\r\nand it requires challenge and when that opinion was given is also\r\nnot stated in the affidavit, only bald affidavit is filed in paragraph </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">No.4 narrating the same that file was sent for opinion, after\r\nreceipt of the opinion decided to file an appeal and no sufficient\r\ncause is shown to condone the delay and hence, I do not find\r\nany reason to condone the delay and application deserves to be\r\ndismissed. Hence, I answer point No.2 as negative.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER\r\n I.A.No.1/2023 is dismissed, since no sufficient cause is\r\nshown. However, made it clear that Section 5 of the Limitation\r\nAct could be invoked in an appeal filed under Section 37 of the\r\nArbitration and Conciliation Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n Consequently, appeal is also dismissed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'd9b4dabce128d171e9b38c12e9769c7c.JPG', '0878661f4273b1d69bbc98bec4f09280.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-02', 1, '', '', '2023-08-01 14:49:05', '2023-08-02 10:33:35');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3284, 'WNxvOVxgUpHRVPlOjIlgPsi6S', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Only those findings, without which the Court cannot adjudicate a dispute on an issue on merits constitute res judicata between the same set of parties in subsequent proceedings.  Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Yadaiah and another Vs State of Telangana and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 4835 of 2023 decided on 1 August 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Surya Kant and Justice J.K. Maheshwari.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. These appeals are directed against the common judgment dated 31.12.2021 passed by a Division Bench of the High Court of Telengana whereby the intra­court appeal preferred by the State of Telengana and its revenue authorities has been allowed, reversing the decision of the learned Single Judge. Consequently, the resumption order dated 27.01.2007, which forms the core of the present disputes concerning the assignment of non­occupied land in the 1960s to landless Scheduled Caste/Scheduled Tribe persons [Hereinafter, ‘Assignees’] for the purpose of cultivation, has been confirmed</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>4. The genesis of these disputes began on 28.10.1953 when the Revenue Department of the then undivided State of Andhra Pradesh took a policy decision and communicated the sanction granted for the assignment of ‘Astabl Kanchi’1 land measuring 200 Acres comprising the revenue estate of Manchirevula village situated in the Ranga Reddy District to the Assignees. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. The Collector after this communication, vide letter dated 07.11.1959, finally submitted a report of eligible individuals and directed that ‘phodi’ or subdivision of the Subject Land be conducted before its assignment. However, after further inspection by revenue authorities, the Collector noted in a subsequent letter dated 04.06.1960 that land measuring 142 Acres 39 Guntas was fit for cultivation instead of the initially proposed area of 200 Acres. Accordingly, the Revenue Divisional Officer vide his letter dated 16.08.1960, directed the concerned Tehsildar to initiate assignment proceedings for land measuring 142 Acres 39 Guntas in Survey No. 393 of Village Manchirevula [Hereinafter, ‘Subject Land’] and directed that process be initiated for grant of special Laoni2 Patta to the eligible persons. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>38. Before we analyse the rival contentions raised by the parties, it would be appropriate to broadly highlight the issues which arise for our consideration:–</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>a) Whether the proceedings emanating out of the Second SCN are barred by the doctrine of res judicata or constructive res judicata?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>b) Whether the exercise of suo motu revisionary powers while issuing the Second SCN is bad in law?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>c) What is the law governing the assignment of the Subject Land and whether the same contained any bar in respect of alienation? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>d) Whether the assignment of Subject Land comes under the purview of 1977 Act? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>e) If question No.(d) is answered in positive, would the entirety of Subject Land or only a part thereof be considered to have violated the 1977 Act in light of the sale deeds executed by M.A. Baksh as the GPA holder?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>f) Whether the Appellants are entitled to any compensation on account of the resumption order dated 27.01.2007?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>C.1 THE APPLICATION OF DOCTRINE OF RES JUDICATA </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>42. Coming to the issue of the finding in High Court’s order dated 21.04.2006 with respect to the demise of M.A. Baksh making the GPA redundant, it is may be noticed that the same is materially different from the violations as alleged in the Second SCN and held in the impugned order. On closer scrutiny, we may point out that the aforesaid observation regarding the GPA executed in favour of M.A. Baksh was not a fundamental determination but only a collateral determination. In this context, the decision of this Court in Pawan Kumar Gupta v. Rochi Ram Nag Deo14 may be usefully cited which observes that:–</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>“16. The rule of res judicata incorporated in section 11 of the Code of Civil Procedure (CPC) prohibits the Court from trying an issue which “has been directly and substantially in issue in a former suit between the same parties”, and has been heard and finally decided by that Court. It is the decision on an issue, and not a mere finding on any Incidental question to reach such decision, which operates as res judicata….”</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>43. By now it’s a globally settled principle of common law jurisprudence that only determinations which are fundamental would result in the application of the doctrine of res judicata. 15 Only those findings, without which the Court cannot adjudicate a dispute and also form the vital cog in the reasoning of a definite conclusion on an issue on merits, constitute res judicata between the same set of parties in subsequent proceedings. However, in the process of arriving at a final conclusion, if the Court makes any incidental, supplemental or nonessential observations which are not foundational to the final determination, the same would not tie down the hands of courts in future</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>45. The effective test to distinguish between a fundamental or collateral determination is hinged on the inquiry of whether the concerned determination was so vital to the decision that without which the decision itself cannot stand independently. Any determination, despite being deliberate or formal, cannot give rise to application of the doctrine of res judicata if they are not fundamental in nature. On a plain reading of the High Court’s order dated 21.04.2006 in conjugation with the application of the test formulated above, we find that the observation in respect of GPA in the said order was indeed a mere collateral finding. We say so for the reason that the order dated 21.04.2006 primarily dealt with the evocation of suo motu revisionary powers under Section 166­B of the 1317 Fasli Act for issuing the First SCN and not the allegations regarding violation of assignment conditions. In fact, the First SCN was held to be bad in law and without jurisdiction because it was primarily issued on the ground of irregularity by stating that the Subject Land was erroneously assigned under the old rules and that it sought to disturb the assignment after a period of more than thirty years. This was held to be in contravention to the settled law for evoking suo motu revisionary powers under Section 166­B of the 1317 Fasli Act which is the sole fundamental determination by the High Court in its order dated 21.04.2006 Resultantly, the finding that the GPA was rendered redundant on account of the demise of M.A. Baksh was only collateral in nature and is not hit by the doctrine of res judicata. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>46. The other aspect which needs our attention is whether the second SCN would be barred by the extended doctrine of constructive res judicata. The said doctrine has been formulated over the time by courts as a part of public policy to prevent abuse of process of courts and to bring finality to the judicial pronouncements. This court in State of UP v. Nawab Hussain17 eloquently explained this principle:–</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>“3. The principle of estoppel per rem judicatam is a rule of evidence. As has been stated in Marginson v. Blackburn Borough Council [(1939) 2 KB 426 at p. 437] , it may be said to be “the broader rule of evidence which prohibits the reassertion of a cause of action”. This doctrine is based on two theories: (i) the finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy, and (ii) the interest of the individual that he should be protected from multiplication of litigation. It therefore serves not only a public but also a private purpose by obstructing the reopening of matters which have once been adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action, for otherwise the spirit of contentiousness may give rise to conflicting judgments of equal authority, lead to multiplicity of actions and bring the administration of justice into disrepute. It is the cause of action which gives rise to an action, and that is why it is necessary for the courts to recognise that a cause of action which results in a judgment must lose its identity and vitality and merge in the judgment when pronounced. It cannot therefore survive the judgment, or give rise to another cause of action on the same facts. This is what is known as the general principle of res judicata.\"</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">4. But it may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation, that would aggravate the burden of litigation.</span><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>47. The doctrine of constructive res judicata will not be applicable in the present case for the simple reason that the issues raised in the Second SCN were never adjudicated upon in the first place as explained above. The plea that the same should have been raised in the earlier proceedings, is irrelevant in light of the liberty granted by the High Court in its order dated 21.04.2006 whereby the Revenue authorities were expressly permitted to initiate fresh proceedings for violation of assignment conditions. The Division Bench of the High Court is therefore right in holding that this liberty was not for ‘future contraventions only’ as perceived by the Single Judge in his order dated 05.02.2010, for it would render the liberty granted in order dated 21.04.2006 as obsolete. We thus hold that in light of the liberty granted by the High Court vide order dated 21.04.2006, the Second SCN would neither constitute an abuse of process of court nor will attract the doctrine of constructive res judicata.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>48. In light of the above discussion and observations, we hold that the proceedings emanating out of the Second SCN are not barred by the doctrine of res judicata or the extended doctrine of constructive res judicata.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>C.2 THE EXERCISE OF SUO MOTU REVISIONARY POWERS </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>49. The Appellants have strenuously contended that evocating suo motu revisionary powers and issuing the Second SCN was bad in law as the same was initiated after more than 45 years when the Subject Land was initially assigned and about more than 15 years after the sale deeds were executed At this stage, we firstly refer to the following observations made by this Court in Ibrahimpatnam Taluk Vyavasaya Coolie Sangham v. K. Suresh Reddy18 in respect of exercise of suo motu revisionary powers:–</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>“9. …… Exercise of suo motu power depended on facts and circumstances of each case. In cases of fraud, this power could be exercised within a reasonable time from the date of detection or discovery of fraud. While exercising such power, several factors need to be kept in mind such as effect on the rights of the third parties over the immovable property due to passage of considerable time, change of hands by subsequent bona fide transfers, the orders attaining finality under the provisions of other Acts (such as the Land Ceiling Act). Hence, it appears that without stating from what date the period of limitation starts and within what period the suo motu power is to be exercised, in sub­section (4) of Section 50­B of the Act, the words “at any time” are used so that the suo motu power could be exercised within reasonable period from the date of discovery of fraud depending on facts and circumstances of each case in the context of the statute and nature of rights of the parties. Use of the words “at any time” in sub­section (4) of Section 50­B of the Act cannot be rigidly read letter by letter. It must be read and construed contextually and reasonably. If one has to simply proceed on the basis of the dictionary meaning of the words “at any time”, the suo motu power under sub­section (4) of Section 50­B of the Act could be exercised even after decades and then it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties, that too, over immovable properties. Orders attaining finality and certainty of the rights of the parties accrued in the light of the orders passed must have sanctity. Exercise of suo motu power “at any time” only means that no specific period such as days, months or years are not ( sic) prescribed reckoning from a particular date. But that does not mean that “at any time” should be unguided and arbitrary. In this view, “at any time” must be understood as within a reasonable time depending on the facts and circumstances of each case in the absence of prescribed period of limitation.”</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>50. It is a matter of record that the Second SCN pertains to alleged violation of assignment conditions by transferring the ownership rights through sale deeds executed in the year 1992. However, the period till 2006, in our considered opinion, could not be counted because the parties were engaged in litigation pursuant to the First SCN and it was only after the liberty was accorded by the High Court in its order dated 21.04.2006 that the Second SCN could be issued. We have already discussed in great detail the reasons behind the grant of said liberty and the same need not be reiterated. In the facts and circumstances of this case and taking note of the chronological events, we are satisfied that the exercise of suo motu revisionary power while issuing the Second SCN was not vitiated on account of inordinate delay as claimed by the Appellants. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>C.3 THE APPLICABLE LAW ON ASSIGNED LANDS</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>51. Once we have determined the validity of the Second SCN in affirmative, the next question that falls for our consideration is whether the subject land was assigned in the year 1953 as claimed by the Appellants or in 1961 when the Temporary Pattas were issued. However, before examining the said point, we express our inability to accept the contention made by Mr. Venugopal, learned senior counsel in respect of the nature of occupancy rights granted to the Assignees. On a plain reading of the recitals contained in the relevant documents, particularly the Temporary Pattas, First and Second SCNs and also the stand taken by Mr. Giri, we have no reason to doubt that the grant of Subject Land was in the nature of an assignment and not in any form of limited occupancy right.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>56. However, it is pertinent to mention here that the decision in Letter sent from Plot No.33822 in its later part clarifies the application of compliance with Section 58­A when it says that:­ </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><i><b>“56. Even if the rules are framed in exercise of rule making power unless notification is issued as contemplated under Sec. 58­A notifying any village or tract of the area where sanction of the Collector for transfer of land is necessary, rules cannot be enforced. As already observed, the condition, if any imposed for sale of unoccupied land on payment of market value under Form­G is till the sale is confirmed by the Collector, but not otherwise, as Sec. 58­A itself envisages sanction of right of occupation of land under Sec. 54 given after the date of the notification, but the same does not cover the occupancy rights granted under Sec. 58 of the Telangana Land Revenue Act. Point No. 1 is answered accordingly.”</b></i></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>57. The abovementioned decision thus envisages the application of Section 58­A of the 1317 Fasli Act only in cases where the assignment is within the ambit of Section 54 of the 1317 Fasli Act. In other words, Assignments such as those under Section 58 of the 1317 Fasli Act are free from the rigours specified under Section 58­A of the 1317 Fasli Act. It goes without saying that the assignment of the Subject Land was not under Section 54 of the 1317 Fasli Act as may be seen from the contents of the 1958 Circular which draws a clear distinction between­ (a) Land assigned on payment of market value after making an application to the Collector and (b) Land Assigned to the Landless poor persons. The former is the case of assignment under Section 54 of the 1317 Fasli Act and the latter is covered within the ambit of Section 58 of the 1317 Fasli Act. The instant case unambiguously falls in the latter category, i.e. ‘Land Assigned to the Landless poor persons’.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>58. Additionally, Section 58 of the 1317 Fasli Act is a deeming provision wherein an occupancy right is presumed to be heritable as well as transferable, until an indication to the contrary is proved. In this regard, 1958 Circular issued in exercise of the rulemaking power vested under Section 172 of 1317 Fasli Act, read with an independent statutory bar created under Section 3 of the 1977 Act, portrays an explicit legislative intention to curtail the legal fiction created under Section 58 of the 1317 Fasli Act. This is the precise reason because of which the decision in Letter sent from Plot No.33823 concludes that 1977 Act was applicable in respect of the land assigned to landless individuals and the same was governed by the conditions of nonalienability as incorporated in the 1958 Circular.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>59. We have, therefore, no doubt in our mind that the Subject Land was governed by the provision of the 1958 Circular which included the condition of non­alienability. We, however, clarify that since the Laoni Rules of 1950 were inapplicable on the Subject Land, the contention raised by Mr. Ray regarding violation of Article 14 in respect of ‘regular assignment’ and ‘special laoni assignment’ becomes irrelevant and out of context and the same need not be gone into by us.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>C.4 THE 1977 ACT: EXTEND OF APPLICATION AND CONSEQUENCES</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>60. The next issue that arises for consideration hovers around the applicability of the 1977 Act and its consequences in the event of violations of the assignment conditions. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>73. Importantly, we must be cautious of the difference between the terms ‘acquisition’ and ‘resumption’ in the context of property laws. While both terms indicate deprivation of a right, there exists a significant distinction in their actual legal connotation. Acquisition denotes a positive act on behalf of the State to deprive an individual’s enjoyment of a pre­existing right in a property in furtherance of its policy whereas resumption denotes a punitive action by the State to take back the right or an interest in a property which was granted by it in the first place. The term ‘resumption’ must not therefore be conflated with the term ‘acquisition’ as employed within the meaning of Article 300­A of the Constitution so as to create a right to compensation. Keeping this mark distinction in view, it is not necessary for us to determine whether an expropriated owner has an impeachable constitutional right to compensation under Article 300A of the Constitution in lieu of his acquired property. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>74. It is also pertinent to note that serious allegations prevail against the Appellants for being involved with the land mafia to usurp the Subject Land for private interests which was the precise reason for the Government to introduce legislation in the nature of the 1977 Act. Resultantly, in the facts and circumstances of this case, we hold that the Appellants are not entitled to any compensation under the existing constitutional framework.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>75. In light of the abovementioned discussion, we conclude that the proceedings emanating out of the Second SCN were valid; the Subject Land was nonalienable and hence was subject to the provisions of the 1977 Act. We further hold that the Appellants had transferred the Subject Land in contravention to the provisions of 1977 Act and therefore, the resultant resumption order dated 27.01.2007 is valid. The Appellants are also not entitled to any compensation on account of the requisition of the assigned land.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>76. We are not oblivious to the fact that the parties have been litigating since the year 1994. During these decades, the Subject Land has acquired enormous value. Some of the documents on record do indicate that land mafia has already ousted the gullible Assignees and now have vulture’s eyes on the land. Additionally, a security agency of paramount national importance currently occupies the Subject Land in public interest. We, therefore, deem it appropriate to invoke our powers under Article 142 of the Constitution to do complete justice to the parties and issue the following further directions/declarations:­ </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>a) The Subject Land in its entirety is declared to have vested in the State Government. On further allotment, its ownership and possessory rights, free from all encumbrances, stand transferred in favour of the Greyhounds;</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>b) No Civil Court or High Court shall entertain any claim whatsoever on behalf of any Assignee, their legal representative, GPA holder or any other claimant under any Agreement to sell or other instruments, claiming direct or indirect interests in the Subject Land; and</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>c) There shall be a final quietus of title and possessory dispute over the Subject Land in favour of the Respondent­State and/or the agency to whom the said land has been allotted. </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>77. Consequently, these appeals stand dismissed along with any pending applications in the above terms. No order as to costs.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '82a7db2c1d1b6d2dce8bea4d6bfcad3e.jpeg', 'dff594fdf8044a09fbbe4e13e771809e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-03', 1, '', '', '2023-08-02 11:45:33', '2023-08-03 06:23:22'),
(3285, 'ybFKjlPGyPqpHDK3Z9qd4rXqj', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Bar of Civil Court jurisdiction in a statute. Before considering the application for temporary injunction, the court must first consider the issue regarding jurisdiction. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Shivananda Sharma and others Vs Shantha Nagesha Rao.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.F.A 2731 of 2023 decided on 28 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. This appeal is filed under Order 43, Rule 1(r) read\r\nwith Section 151 of C.P.C. challenging the order dated\r\n01.03.2023 passed in O.S.No.3213/2019 on the file of the III\r\nAdditional City Civil and Sessions Judge, Bengaluru City (CCH\r\nNo.25), allowing I.A. No.1 filed under Order 39, Rule 1 and 2\r\nread with Section 151 of C.P.C. granting an order of injunction\r\nagainst the defendants.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The factual matrix of the case of the plaintiffs before\r\nthe Trial Court is that the plaintiffs had filed the suit against the\r\ndefendants for permanent injunction in which I.A.No.1 is filed for\r\nrestraining the defendant Nos.1 and 2, men agents and such\r\nother persons or claiming through them in any manner operating\r\nthe Sewerage Treatment Plant installed by the defendants in\r\nschedule ‘A’ property<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. Having heard the learned counsel for the appellants\r\nand the learned counsel for the respondents and also the\r\nprinciples laid down in the judgments referred (supra), the\r\npoints that would arise for consideration of this Court are:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(1) Whether the Trial Court committed an error in\r\nallowing the application filed under Order 39,\r\nRule 1 and 2 read with Section 151 of C.P.C.\r\ngranting an order of injunction against the\r\ndefendants?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(2) Whether the Trial Court has committed an\r\nerror in not considering the issue of jurisdiction\r\nin entertaining the suit and ought not to have\r\ngranted the relief of injunction?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(3) What order? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Point Nos.(1) and (2):</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>43. No doubt, both the counsels relied upon several\r\njudgments regarding jurisdiction, the Division Bench of this <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court in the judgment in UNION OF INDIA AND OTHERS VS.\r\nALISAB reported in 2000 SCC ONLINE KAR 400, held that\r\nissue of jurisdiction can be raised at any point of time and need\r\nnot necessarily raise the same in the pleading and the same can\r\nbe raised in the appeal also. Further, even at the time of\r\ncanvassing the argument also, the same can be raised and\r\nadmittedly, the judgment of the Madras High Court is also relied\r\nupon before the Trial Court and the Trial Court, except stating\r\nthat this Court lacks jurisdiction holds no justification and\r\nnothing is discussed regarding the jurisdiction.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">44. It has to be noted that the point of jurisdiction goes\r\nto the very root of the case and if the Court is not having\r\njurisdiction to entertain the suit, the question of granting any\r\ndiscretionary relief of mandatory injunction does not arise.\r\nWhen there is a bar under Section 58 of the Water (Prevention\r\nand Control of Pollution) Act, 1974 and under Sections 14 and 29\r\nof the National Green Tribunal Act, 2010, wherein it is\r\nspecifically held that no civil Court have jurisdiction to entertain\r\nthe appeal in respect of any matter in its appellate jurisdiction </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and having read the said proviso, the Trial Court ought to have\r\ngiven finding with regard to the jurisdiction whether suit is\r\nmaintainable or not and the same is not touched upon by the\r\nTrial Court.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">45. Having read the principles laid down in the\r\njudgments referred (supra), it is very clear that, at the first\r\ninstance, the Court has to decide the issue of jurisdiction and\r\nthen has to consider the application filed under Order 39, Rule 1\r\nand 2 read with Section 151 of C.P.C. In the case on hand,\r\nthere is no finding with regard to the jurisdiction is concerned,\r\nwhen the issue was raised with regard to the bar for filing a suit.\r\nI have already pointed out that, in Para No.10 of the impugned\r\norder, the Trial Court, except stating that this Court holds no\r\njustification, no reason has been assigned regarding jurisdiction.\r\nHence, the Trial Court has to consider the issue with regard to\r\njurisdiction and bar in exercising the jurisdiction and then,\r\nentertain an application filed under Order 39, Rule 1 and 2 read\r\nwith Section 151 of C.P.C. and without considering the issue of\r\njurisdiction, the relief cannot be granted.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>46. It is also not in dispute that suit is filed for the relief\r\nof mandatory injunction to remove the STP and in Para No.8 of\r\nthe plaint, it is pleaded that STP is installed and the same has\r\nstarted its commissioning and foul smell is emanating. When\r\nsuch pleading is made and relief is sought for mandatory\r\ninjunction and the very prayer in the suit itself is for removal of\r\nSTP and if defendants fail to remove the same at the cost of the\r\nplaintiffs, the Trial Court ought to have taken note of the said\r\nfact while passing an order and when an order of mandatory\r\ninjunction is prayed in the suit, the Trial Court ought to have\r\nconsidered the very interim prayer and failed to take note of the\r\nsaid fact into consideration.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">48. It is the case of the defendants that already STP is\r\ncommissioned and the same is installed in terms of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">notification and memorandum of STP guidelines marked as\r\nAnnexures-B and C and the same is not discussed by the Trial\r\nCourt. It is the specific contention that, already STP is installed\r\nand no other space is available, except the eastern side of the\r\nsuit schedule ‘A’ property though they were having space for\r\ninstallation of STP and the same is also not discussed by the\r\nTrial Court while passing an order. When such being the case\r\nand the issue involved between the parties is with regard to the\r\njurisdiction as well as the merits of the application and relief\r\nsought is also for mandatory injunction to remove the STP, the\r\nsame requires to be considered by the Trial Court and the Trial\r\nCourt failed to take note of the relief sought in the I.A. and also\r\nthe pleadings and main relief sought in the plaint and consider\r\nthe bar under Section 58 of the Water (Prevention and Control of\r\nPollution) Act, 1974 and also bar under Section 29 of the\r\nNational Green Tribunal Act, 2010. Hence, it requires\r\ninterference of this Court. Accordingly, answered point Nos.(1)\r\nand (2) as ‘affirmative’.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(3)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) The appeal is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8b59464d00f4765cf25a7941f8e38b2c.JPG', '474df28079d21af9b4a10bfc34b4dadf.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-03', 1, '', '', '2023-08-02 12:12:06', '2023-08-03 03:23:11');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3286, 'subk7tLMI6gs2HD6VLT9JUOfO', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '\'\'False cases filed under SC/ST (Prevention of Atrocities) Act clog the criminal justice system and consume considerable time of the Courts at all levels\'\'. Karnataka High Court while quashing frivolous case arising out of civil dispute. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rasik Lal Patel and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 5497 of 2022 decided on 28 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioners are before this Court calling in question\r\nproceedings in Special Case No.132 of 2020 pending before the LXX\r\nAdditional City Civil & Sessions Judge and Special Judge, Bangalore\r\narising out of Crime No.219 of 2018 registered for offences\r\npunishable under Sections 465, 468, 471, 420, 506 r/w 34 of the\r\nIPC and Sections 3(1)(f), (p), (r), (s) and Section 3(2)(va) of the\r\nScheduled Castes and the Scheduled Tribes (Prevention of\r\nAtrocities) Act, 1989 (hereinafter referred to as ‘the Act’ for short).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Facts, in brief, adumbrated are as follows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The 2nd respondent is the complainant and the petitioners are\r\naccused Nos.2 and 3. The 2nd respondent is the son of one late\r\nV.Krishnamurthy. Late V.Krishnamurthy and V.Muniyappa are sons\r\nof one A.K. Venkatappa. During the life time of V.Muniyappa and\r\nV.Krishnamurthy they had purchased several properties in their\r\njoint names. One such property is the subject property. After\r\npurchase of several properties, they got the lands converted from\r\nagriculture to non-agricultural purposes on 15-07-1970 and later <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">registered a partition deed on 07-06-1974 entering into partition of\r\nproperties that they had jointly owned. Several of the properties\r\nfell to the share of V.Krishnamurthy, father of the complainant. On\r\n20-07-1988 a sale deed comes to be registered by V.Muniyappa\r\nand V.Krishnamurthy as joint vendors of one of the subject\r\nproperties in favour of the father of the petitioners. Pursuant to the\r\nsale deed, the father of the petitioners became the absolute owner\r\nand in possession of the property. Certain other sites that were in\r\nthe name of the father of the complainant and V.Muniyappa had\r\nalso become a subject matter of sale deeds executed in favour of\r\nthe father of the petitioners at intermittent intervals. Those sale\r\ndeeds dated 18-02-1993 and 30-10-2002 were executed by the\r\npower of attorney holder of V.Muniyappa and V.Krishnamurthy. The\r\nproperties purchased by the father of the petitioners measuring\r\n14,100 sq.ft. and the properties that were held by the children of\r\nV.Muniyappa and V.Krishnamurthy abut each other.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The father of the petitioners, in the property purchased by\r\nhim as aforesaid, established a timber business in the name and\r\nstyle of J.K.Timber Traders after claiming to have taken all </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">necessary approvals from the statutory authorities. After the death\r\nof the father of the petitioners, the petitioners have inherited all his\r\nproperties. When things stood thus, the 2nd respondent/\r\ncomplainant claiming interest over the sites in question files a suit\r\nin O.S.No.429 of 2015 against one Smt. Saraswathi, the petitioners\r\nand others seeking a relief of partition and separate possession in\r\nrespect of certain sites mentioned in the plaint. Those were the\r\nvery sites that complainant’s father V.Krishnamurthy and his uncle\r\nV.Muniyappa sold by executing certain sale deeds in favour of the\r\nfather of the petitioners. In the said suit an application was filed by\r\nthe complainant under Order 39 Rules 1 and 2 of the CPC seeking\r\ntemporary injunction not to alienate or create any charge over the\r\nproperties. Written statement was filed by the petitioners and the\r\nmatter is pending consideration before the competent civil Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. The afore-narrated facts are not in dispute. The\r\ntransactions between respective fathers i.e., father of the\r\npetitioners and the father of the complainant have gone on since\r\n15-07-1970 which is now 53 years old. The transaction is\r\nconcerning the subject property which was acquired jointly by one <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">V.Muniyappa and V.Krishnamurthy. Partition had happened\r\nbetween V.Muniyappa and V.Krishnamurthy and properties that had\r\nfallen to the share of V.Krishnamurthy, father of the complainant\r\nwere sold to the father of the petitioners in three different sale\r\ndeeds. The first sale deed was executed on 20-07-1988 selling a\r\nportion of the property that belonged to V.Krishnamurthy. The sale\r\ndeed is appended to the petition. The second sale takes place\r\nthrough the General Power of Attorney holder of the father of the\r\ncomplainant on 18-02-1993 and the third sale deed again through\r\nthe General Power of Attorney holder takes place on 30-10-2002.\r\nTherefore, the petitioners become absolute owners of the properties\r\npursuant to aforesaid sale deeds and have been in possession of\r\nthe properties since then. The possession of the petitioners of the\r\nproperties is not in dispute and the transactions between the father\r\nof the petitioners and the father of the complainant concerning the\r\nvery subject matter are all a matter of record. Certain disputes\r\narose with regard to drawing up of boundaries after the aforesaid\r\nsale deeds and a rectification deed only with regard to boundaries\r\nwas executed on 25-01-2005. The said rectification deed is also\r\nappended to the petition.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. It is not one but there are several hues of abuses of the\r\nprocess of law in the case at hand. The afore-noted proceedings\r\nare all a matter of record. Therefore, knowing full well that the\r\nfather of the complainant had sold the properties to the petitioners\r\nor the father of the petitioners, the crime comes to be registered\r\ncontending that he is not aware of the same and, therefore, the\r\ndocuments are forged. All of them are registered public documents\r\npursuant to which the petitioners or their father have been in\r\npossession of the properties for the last 50 years. It is\r\nununderstandable as to how a crime could be registered on the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">aforesaid facts. The allegations in the charge sheet are the ones\r\npunishable under Sections 465, 468, 471, 420 and 506 of IPC.\r\nSections 465 to 477 all deal with forgery. How on earth forgery can\r\nnow be alleged of public documents that have been in existence for\r\nthe last 50 years is what becomes ununderstandable. There is no\r\ningredient of any of the offences under Sections 465, 468 or 471\r\nexist in the lis, be it in the complaint or in the summary of the\r\ncharge sheet.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. Section 465 of the IPC deals with punishment for forgery\r\nand forgery is dealt with under Section 463 of the IPC. Whoever\r\nmakes false documents or creates false electronic records result of\r\nwhich would cause to a person to part with the property is said to\r\nbe committing forgery. The other offences spring from forgery.\r\nSection 468 deals with forgery for the purpose of cheating which\r\nagain has its ingredients in Section 463 of the IPC. Section 471\r\ndeals with using as genuine a forged document. I do not find any\r\nsuch ingredients either in the complaint or in the charge sheet. I\r\nrefrain from further consideration of these offences as they are the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ones that are alleged in the civil suit. Any further reference would\r\nprejudice the case of the complainant in the civil suit.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. The other offences are the ones punishable under the Act.\r\nThe offences alleged are under Sections 3(1)(f), (p), (r) and (s) and\r\n3(2)(va) of the Act. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 3(1)(f) directs whoever wrongfully occupies or cultivates\r\nthe land owned by a Scheduled Caste. The petitioners are in\r\npossession of the property for the last 50 years and they are in\r\npeaceful enjoyment of their own land. Therefore, they have not\r\nwrongfully occupied the land belonging to either member of a\r\nScheduled Caste or a Scheduled Tribe – complainant herein.\r\nSection 3(1)(p) deals with ‘institutes false, malicious or vexations\r\nsuit or criminal or other legal proceedings against member of a\r\nScheduled Caste or a Scheduled Tribe. The petitioners have on their\r\nown right instituted proceedings both civil and criminal against the\r\ncomplainant alleging harassment by him and disturbance of\r\npeaceful possession. It can neither be malicious or vexatious or\r\neven false. Therefore, the said provision also cannot be invoked in\r\nthe case at hand. The other provisions are Section 3(1)(r) & (s) of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Act – hurling of abuses in a public place or in a place of public\r\nview. Neither of them are present in the case at hand, as the\r\nproperty of the petitioners and the complainant abut each other.\r\nThe ingredients of clauses (r) and (s) are sought to be pumped into\r\nthe complaint or the summary of the charge sheet only to wreck\r\nvengeance against the petitioners for having registered a crime\r\nagainst the complainant in which the Police have filed a charge\r\nsheet. Therefore, the provisions under clauses (r) and (s) are only a\r\ncounter blast to what is aforesaid. Now coming to Section 3(2)(va)\r\nof the Act, whoever commits any offence against a person or\r\nproperty knowing that it is belonging to a member of Scheduled\r\nCaste or Scheduled Tribe becomes liable for punishment. It is again\r\nununderstandable how the said provision could be invoked, as the\r\ncomplainant in the complaint avers that pursuant to certain sale\r\ndeeds, the petitioners were put in possession of the property, not\r\ntoday but decades ago. Therefore, the said provision is loosely laid\r\nagainst the petitioners.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. On the entire gamut of consideration made hereinabove,\r\nwhat would unmistakably emerge is misuse and abuse of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">provisions of the Act. This case forms a classic illustration of scores\r\nand scores of cases where the provisions of the Act are misused for\r\nulterior motives or pressurize the accused in collateral proceedings.\r\nTherefore, none of the offences either under the IPC or under the\r\nAct are present even on their foundational basis, let alone building\r\na castle on such foundation. In the teeth of aforesaid facts, if\r\nfurther proceedings are permitted to continue, it would be putting a\r\npremium on the abuse of the process of law by the complainant in a\r\nmanner which on the face of it civil in nature. If the impugned\r\ncrime is not a case where a civil proceeding is dressed with a colour\r\nof crime, I fail to understand what else it can be.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. In the aforesaid circumstances reference being made to\r\nthe judgments of the Apex Court would be apposite. In the case of\r\nR.NAGENDER YADAV v. STATE OF TELANGANA AND\r\nANOTHER the Apex Court holds as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\"12. As stated earlier, the police could be said to\r\nhave made a mockery of the entire investigation. When it\r\nis the specific case of the original complainant that at no\r\npoint of time he had executed the disputed sale deed\r\ndated 29-12-2010 and his signature on the disputed sale\r\ndeed has been forged, then the first thing the police\r\nshould have done was to obtain the specimen\r\nhandwritings of the complainant so as to be compared\r\nwith the disputed signature on the sale deed through a\r\nhandwriting expert. We are informed that as on date\r\nthere is no report of the handwritings expert in regard to\r\nthe genuineness of the signature of the complainant on\r\nthe disputed sale deed.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>13. Second thing which the investigating agency\r\nought to have done is to investigate whether the sale\r\nconsideration had been paid to the purchaser of the\r\ndisputed plot or not and if the sale deed consideration\r\nhad been paid, then in what manner. There is nothing on\r\nrecord in this regard. We fail to understand on what basis\r\nthe police filed charge-sheet against the appellant herein.\r\nIf it is the case of the original complainant that a\r\nconspiracy was hatched, then in such circumstances why\r\ndid the police drop the purchaser and the other\r\nindividuals from the charge-sheet stating that they are\r\nthe bona fide purchasers of the plot in question for value\r\nwithout notice. </i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>14. As on date, there is no convincing legal\r\nevidence on record to put the appellant herein to trial for\r\nthe alleged offences. Since the purchaser of the plot in\r\nquestion and others have not been arrayed as accused,\r\nthe entire theory of criminal conspiracy collapses like a\r\npack of cards. Of course, it is true that the stance of the\r\nappellant herein is very clear that it is the complainant\r\nwho executed the sale deed dated 29-12-2010 in favour\r\nof Smt Kalpana Yadav Mangalarapu for the sale\r\nconsideration as shown in the sale deed on his own free\r\nwill and volition and in the said sale deed, he attested the\r\nsignature of the vendor i.e. the original complainant.\" </i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Apex Court again in the case of USHA CHAKRABORTY AND\r\nANOTHER v. STATE OF WEST BENGAL AND ANOTHER has\r\nheld as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\"15. The materials on record pertaining to the said\r\npleadings instituted in the Civil Suit, produced in this <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">proceeding would reveal that the respondent was in fact\r\nousted from the membership of the trust. In the counter\r\naffidavit filed in this proceeding, the respondent has\r\nvirtually admitted the pendency of the suit filed against\r\nhis removal from the post of Secretary and the\r\ntrusteeship and its pendency. The factum of passing of\r\nadverse orders in the interlocutory applications in the\r\nsaid Civil Suit as also the prima facie finding and\r\nconclusion arrived at by the Civil Court that the\r\nrespondent stands removed from the post of Secretary\r\nand also from the trusteeship are also not disputed\r\ntherein. Then, the question is why would the respondent\r\nconceal those relevant aspects? The indisputable and\r\nundisputed facts (admitted in the counter-affidavit by the\r\nrespondent) would reveal the existence of the civil\r\ndispute on removal of the respondent from the post of\r\nSecretary of the school as also from the trusteeship.\r\nObviously, it can only be taken that since the removal\r\nfrom the office of the Secretary and the trusteeship was\r\nthe causative incident, he concealed the pendency of the\r\ncivil suit to cover up the civil nature of the dispute.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">16... </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">In other words, if such\r\nallegations in the petition are vague and are not specific\r\nwith respect to the alleged offences it cannot lead to an\r\norder for registration of an F.I.R. and investigation on the\r\naccusation of commission of the offences alleged. As\r\nnoticed hereinbefore, the respondent alleged commission\r\nof offences under Sections 323, 384, 406, 423, 467,\r\n468, 420 and 120B, IPC against the appellants. A bare\r\nperusal of the said allegation and the ingredients to\r\nattract them, as adverted to hereinbefore would reveal\r\nthat the allegations are vague and they did not carry the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">essential ingredients to constitute the alleged offences.\r\nThere is absolutely no allegation in the complaint that the\r\nappellants herein had caused hurt on the respondent so\r\nalso, they did not reveal a case that the appellants had\r\nintentionally put the respondent in fear of injury either to\r\nhimself or another or by putting him under such fear or\r\ninjury, dishonestly induced him to deliver any property or\r\nvaluable security. The same is the position with respect\r\nto the alleged offences punishable under Sections 406,\r\n 423, 467, 468, 420 and 120B, IPC. The ingredients to\r\nattract the alleged offence referred to hereinbefore and\r\nthe nature of the allegations contained in the application\r\nfiled by the respondent would undoubtedly make it clear\r\nthat the respondent had failed to make specific allegation\r\nagainst the appellants herein in respect of the aforesaid\r\noffences. The factual position thus would reveal that the\r\ngenesis as also the purpose of criminal proceedings are\r\nnothing but the aforesaid incident and further that the\r\ndispute involved is essentially of civil nature. The\r\nappellants and the respondents have given a cloak of\r\ncriminal offence in the issue. In such circumstance when\r\nthe respondent had already resorted to the available civil\r\nremedy and it is pending, going by the decision\r\nin Paramjit Batra (supra), the High Court would have\r\nquashed the criminal proceedings to prevent the abuse of\r\nthe process of the Court but for the concealment.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>17. In the aforesaid circumstances, coupled with\r\nthe fact that in respect of the issue involved, which is of\r\ncivil nature, the respondent had already approached the\r\njurisdictional civil court by instituting a civil suit and it is\r\npending, there can be no doubt with respect to the fact\r\nthat the attempt on the part of the respondent is to use\r\nthe criminal proceedings as weapon of harassment\r\nagainst the appellants.\"</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the light of the aforesaid facts, glaring enough they are, what\r\nwould unmistakably emerge is that, this case would form a classic\r\nillustration of misuse of the provisions of the Act and the penal\r\nprovisions under the IPC. It is such cases which clog the criminal\r\njustice system and consume considerable time of the Courts, be it\r\nthe Magistrates Court, Court of Session or this Court, while genuine\r\ncases where litigants have actually suffered would be waiting in the\r\npipeline. Therefore, such cases, which on the face of it is an abuse\r\nof the process of the law, are necessarily required to be nipped,\r\nfailing which, it would be a heavy burden on the criminal justice\r\nsystem, apart from it becoming a harassment to the petitioners and\r\nultimately resulting in miscarriage of justice.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n(i) Criminal petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3bd7d23aa48ecded446790d8d502934e.jpeg', '6a6da9e93e1414ebebaead8a9fefcc7c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-04', 1, '', '', '2023-08-02 12:26:51', '2023-08-04 12:17:30'),
(3287, 'Qj3Kjg6eBKmAjA8kPYKEcV6oV', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Release of seized vehicle under Section 457 of Cr.P.C. Deposit/security amount for release of the vehicle to the interim custody cannot be randomly fixed without any basis. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mustafa Vs The State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Revision Petition 100268 of 2023 decided on 18 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Anil B Katti.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Revision petitioner/applicant-Sri. Mustafa s/o Maktumsab\r\nRasoolanavar, feeling aggrieved by order passed by the trial\r\nCourt on the file of IV Additional Senior Civil Judge and JMFC\r\nCourt, Dharwad, dated 17.06.2023 ordering to deposit cash of\r\nRs.5,00,000/- for release of interim custody of the tractor\r\nbearing registration No.KA.27/T-3132, preferred this revision\r\npetition.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. On the strength of complaint filed by Mahesh S/o\r\nSomalingappa Pattanshetty criminal law was set into motion by\r\nregistering case in Dharwad Rural P.S. in Crime No.138/2023\r\nfor the offences punishable under Sections 279, 283, 338,\r\n304(A) of IPC. The tractor bearing registration No.KA-27/T3132 and trailer bearing registration No.KA-25/EA006146/2014-15 is seized and reported the seizer of the vehicle\r\nunder P.F No.65/2023 dated 08.06.2023 to the Court. The\r\napplicant being the R.C. owner, filed application under Section\r\n457 of Cr.P.C for releasing vehicle. The trial Court after hearing\r\nthe arguments of both sides, by order dated 17.06.2023 has </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ordered to release the interim custody of the seized vehicle on\r\ndepositing of Rs.5,00,000/- in Court towards the security in\r\ncompliance of the Rule 232G of the Karnataka Motor Vehicle\r\nRules and also to execute indemnity bond for the like sum\r\namount subject to the conditions imposed by the trial Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. Learned HCGP has contended that in terms of\r\nSection 397(2) of Cr.P.C revision petition itself is not\r\nmaintainable as it is arising out of interim order passed by the\r\ntrial Court . In support of such contention reliance is placed on\r\nthe judgment of Madras High Court in K.BASHA VS. STATE\r\nTHROUGH INSPECTOR OF POLICE CIVIL SUPPLIES, CID,\r\nTRICHY. In the said case before Hon’ble Madras High Court,\r\nthe revision petition was filed challenging the order of trial Court\r\nin returning the petition filed under Section 451 of Cr.P.C.\r\nTherefore, it was held that revision petition against the order for\r\n“R.P. not received by this Court. Hence, return.” is not\r\namenable to the revisional jurisdiction. The said factual aspect\r\nis not involved in the present case.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. Learned HCGP has also relied another judgment of\r\nHon’ble Kerala High Court in YADAV AGENCIES PVT. LTD VS.\r\nPHILOMINA AND ANOTHER reported in 1985 CRL.L.J. 1798\r\nwherein it has been observed and held that an order passed <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">under Section 451 of Cr.P.C. is an interlocutory order and the\r\nrevision petition is held to be not maintainable.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>9. Learned counsel for the revision petitioner relied on\r\nthe co-ordinate bench judgment of this Court in\r\nT.NARAYANASWAMY VS. STATE AND OTHERS [1992 (4)\r\nKLJ 459] wherein it has been observed and held that:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“The order of the learned Magistrate granting\r\ninterim custody of the vehicle to the petitioner\r\ncannot be said to be an interlocutory order and\r\ntherefore the respondent No. 2 has challenged it by\r\nway of revision in the Court of the Prl. Sessions\r\nJudge, Shimoga, similarly, when the revision petition\r\nis decided against the petitioner, he has got a right\r\nto prefer a revision petition against that order which\r\ncannot be construed as an interlocutory order for the\r\npurpose of S.397, Cr.P.C. in this Court.”</span><span style=\"font-size: 12pt;\"> </span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>10. Learned counsel for revision petitioner also relies on\r\nthe subsequent decision of Hon’ble Madras High Court in\r\nGANESA MOORTHY VS. STATE REP. BY THE INSPECTOR\r\nOF POLICE, KATTUMANNARKOIL [2019 CRL.L.J 1355\r\n(MAD)] wherein it has been observed and held in paragraph 8\r\nas under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“8. An application under Sec. 451 Cr. P.C. has\r\nto be decided by the Court after hearing the parties\r\nseeking the release of the property in question. The\r\nparties are allowed to adduce evidence and it is only\r\nafter hearing them that the Court passes the order\r\nthereby giving the custody of the property to one of\r\nthem who may be adjudged by the Court to be best\r\nentitled for the same. To say that such an order is\r\nrevisable by the Court on the termination of the\r\nproceedings or in between is no reason to call the order\r\ninterlocutory order. Till such an order is made, it is final\r\nbetween the parties and the Magistrate cannot\r\narbitrarily or without proper justification change the\r\nsame during the course of the proceedings. The\r\nargument of the petitioner that such an order becomes\r\nfinal on the termination of the proceedings cannot be\r\naccepted because even that order is subject to\r\ndetermination by a Civil court. Therefore, in the light of\r\nthe decision of the Supreme Court in Madhu Limayes\r\ncase, [1978 Cr.LJ 165 (supra)], it can be held that this\r\nkind of order is final between the parties deciding their\r\nentitlement to the property in question finally at that\r\nstage. Therefore such an order is necessarily subject to\r\nrevision by the Court and revision against the same is\r\ncompetent before a Court of Session. The view which I\r\nhave taken has a support from Bharat Heavy Electricals\r\nLtd. v. State [1981 Cr.LJ 1529 (Andh Pra]) and Ishar\r\nSingh v. The State of Punjab, [1974 CrLJ 231). The\r\nargument of Sh. S.S. Kanwar on this count, therefore,\r\nfails and is rejected.\"</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Therefore, in view of the aforementioned judgments, it is\r\nevident that revision petition against the order passed in terms\r\nof Section 451 of Cr.P.C., is maintainable.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Indisputably, the seized vehicle has no any\r\ninsurance coverage. Therefore, the trial Court is justified in\r\ninvoking Rule 232-G of Karnataka Motor Vehicles Rules, 1989\r\nand ordering to offer sufficient security to the satisfaction of the\r\nCourt to pay compensation that may be awarded in a claim case\r\narising out of such accident. The object of this rule is to protect\r\nthe interest of the claimants in a claim petition to satisfy the\r\naward, where there is no insurance policy to the vehicle. While\r\nasking for deposit of the amount for release of the vehicle to the\r\ninterim custody even in terms of Rule 232-G of Karnataka Motor\r\nVehicle Rules, the Court will have to take into consideration the\r\nprobable value of the vehicle and the amount of security cannot\r\nbe randomly fixed without any basis. In the present case, the\r\nseized vehicle as per the RC book is of 1997 model. As on the\r\ndate of seizure on 08.06.2023 more than 26 years have been\r\nelapsed. Looking to the model of the seized vehicle and if the\r\ndepreciation per year is calculated and also present condition of\r\nthe seized vehicle as appearing in the photograph as per <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Annexure-J to J3 are taken into consideration, it would be\r\nappropriate to modify the deposit of cash of Rs.2 lakhs in\r\naddition to offering the indemnity bond and surety bond for Rs.5\r\nlakhs as ordered by trial Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Revision petition filed by the revision petitioner is hereby\r\npartly allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '2aa2c2e0acc2b2f7032b3b8da4dd4a3b.jpeg', '81fa74d09cfb6f1cc5485630b85c7d42.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-03', 1, '', '', '2023-08-02 12:42:35', '2023-08-03 10:30:31');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3288, 'oGwTSmwxmoxdEUi8jyNymxLZT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Second marriage by Muslim woman without divorcing the first husband is \'Batil\' and void-ab-initio. Children born out of such marriage are illegitimate with no right of succession. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nabisab Vs Hatelsab.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 1467 of 2007 decided on 14 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V. Srishananda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>2. The appeal came to be admitted on the following substantial question of law .</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>\"In the light of the finding in the negative over issue No.4 by the trial Court, whether the lower appellate court was justified in reversing the finding , as recorded in para 21 of the judgment and decree of the lower appellate court , so as to dismiss the suit?\" </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>5. Brief facts of the case are as under: A suit came to be filed by the plaintiff in O.S.No.52/2001 before the Civil Judge (Jr.Dn.) , Kalghatagi for the relief of declaration and permanent injunction against the defendant declaring that plaintiff is the absolute owner of the following properties.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>6. It is contended by the plaintiff that the suit properties are ancestral properties which has fallen to the share of the plaintiff at a partition that took place in the year 1999 with his uncle and other relatives. After the partition in the year 1999, the revenue entries were mutated in the name of the plaintiff and he was enjoying the suit property as its owner in possession.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>7. When the matter stood thus, defendant who is a stranger to the family of the plaintiff, started interfering with the suit property and laid a claim over the suit property even though he did not possess right, title and interest over the suit property which cons trained the plaintiff to file a suit seeking declaration and injunction.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>11. Based on the rival contentions, trial Court raised following issues .</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(1) Whether plaintiff proves that he is the only son of Huchhesab Sannamani? </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(2) Whether plaintiff proves that he has not acquired possession and ownership over the suit property through his father Huchhesab Sannamani?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(3) Whether Plaintiff prove s that defendant is not a party to the partition and Varadhi pertaining to M .E.No .817?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(4) Whether defendant proves that the his mother is the 2nd wife of Huchhesab Sannamani?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(5) Whether defendant prove s that himself and plaintiff are the joint allotees of the suit properties?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(6) Whether this court is having pecuniary jurisdiction to try this suit?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(7) Whether plaintiff proves his absolute ownership and exclusive possession over the suit properties as on the date o f suit?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(8) Whether plaintiff is entitle for the decree of Permanent Injunction as claimed in the suit?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(9) Whether defendant is having half share in the suit properties?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>(10) What order or decree?</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>14. On conclusion of the recording of the evidence, the learned trial Judge heard the parties in detail and decreed the suit of the plaintiff as under by recording the findings on issues No.1 to 10:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>\"Issues No .1: Affirmative .</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Issue No.2: Affirmative . </b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Issue No.3: Affirmative .</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Issue No.4: Not the legally wedded second wife</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Issue No.5: Negative.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Issue No.6: Affirmative .</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Issue No.7: Affirmative.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Issue No.8: Affirmative.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Issue No.9: Negative.</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>Issue No.10: As per final order for the following reasons .\"</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>\"This suit is decreed as under: It is hereby declared that the plaintiff is the absolute owner and exclusive possessor of the suit properties. The defendant has been permanently re strained from interfering with plain ti ffs peaceful possession and enjoyment of the suit properties.</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>There is no order as to costs. Draw decree accordingly.\"</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>23. In order to appreciate whether the defendant can be termed as legitimate son which is the opinion formed by the first appellate Court while upsetting the decree of the trial Court, it is just and necessary for this Court to cull out Section 253 of the Mohammadan Law which reads as under:</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>253 . Valid , irregular and void marriages : A marriage may be valid (sahih), or irregular (fasid) , or void from the beginning (batil).</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><i><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><i>Irregular or invalid marriages: The term \"fasid\" is translated in Baillie\'s Digest as \"invalid\", but as the word \"invalid\" in the English language also means \"void ,\" \"irregular \" and has been substituted for \"invalid\" in conformity with the usage of modern writers on the subject . As to irregular marriages , see sec s. 254 to 259 and sec . 263 . As to void marriages , see secs . 260 to 262 .</i></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b>The Marriage of a Sha fei virgin girl who has attained puberty if she is given in marriage in a proper form is valid . Muhammad Haji Kammu v. Ethiyamma (1967) Kerala L .T.913 .</b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><font face=\"Calibri, sans-serif\"><b><br></b></font></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. Since the defendant pleaded that he is the son\r\nborn to Fakiramma through Huchchesab who is the father\r\nof the plaintiff, it was incumbent on the defendant to\r\nestablish that the marriage of Fakiramma with Huchchesab\r\nwas a valid marriage.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>29. Admittedly, since the elder brother namely\r\nMoulasab Sannamani has signed as guardian of the\r\ndefendant as discussed supra as is found in Ex.C.1,\r\nFakiramma must have been married to Moulasab Menasagi\r\nas is suggested to DW.1 by the plaintiff in the year 1966. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>30. Unless the first marriage of Fakiramma with\r\nMoulasab Menasagi is duly dissolved as per the\r\nMohammadan law, her marriage with Huchchesab should\r\nbe considered as a \'Batil\' marriage.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>31. Therefore, even though the defendant is the\r\nson of Huchchesab through Fakiramma, he would be\r\nconsidered as an illegitimate son. Therefore, the finding\r\nrecorded by the First Appellate Court without there being\r\nany discussion that the defendant and his sister Fatubi are\r\nthe legitimate son and daughter of Fakiramma needs\r\ninterference by this Court in this appeal.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>32. In the absence of any plausible evidence placed\r\non behalf of the defendant that Fakiramma was eligible to\r\nmarry Huchchesab, without there being a decree of\r\ndivorce or dissolution of marriage in accordance with the\r\nMohammadan law as is discussed by the trial Court in\r\nparagraph No.41 referred to supra, this Court is of the\r\nconsidered opinion that contrary finding recorded by the\r\nlearned Judge in the First Appellate Court holding that the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">defendant is a legitimate son and therefore dismissing the\r\nsuit, in the considered opinion of this Court is a perverse\r\nfinding.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">33. Accordingly, from the above discussion,\r\ninvariably, the substantial question of law raised above is\r\nto be answered in affirmative and accordingly it is\r\nanswered and following order is passed.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The appeal is allowed and the judgment of\r\nthe First Appellate Court passed in R.A.\r\nNo.68/2003 dated 08.01.2007 is hereby\r\ndismissed and the decree passed by the trial\r\nCourt in O.S. No.52/2001 dated 28.01.2003 is\r\nrestored.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> In the facts and circumstances of the case,\r\nthere is no order as to costs. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '3a7f1ac78fb0bd0801bde693c2d819e8.JPG', 'd4518900202fcc20851172cef55ea23e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-03', 1, '', '', '2023-08-02 13:18:36', '2023-08-03 08:08:06'),
(3289, 'Na19wjtHeYeDIZflY4Cl9AZoI', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Cheque issued by vendor to purchaser of property as security towards pending litigation on the property is not ‘legally enforceable debt’. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>F. Chandra Vs Anitha.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 332 of 2012 decided on 28 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Rajesh Rai K.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The complainant, in C.C No.40582/2008 on the file of XIV\r\nAddl. CMM, Bengaluru City, has preferred this appeal challenging\r\nthe judgment and order dated 02.02.2012, whereby acquitting\r\nthe accused/respondent for the offence punishable under Section\r\n138 of Negotiable Instrument Act, 1981 (for short \'the Act\').</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. It is the case of the complainant that the accused\r\nhas presented herself as owner of site bearing No.25 situated at\r\nVijinapura Village, K.R. Puram Hobli, Bangalore East Taluk, and\r\nthe complainant purchased the same under the sale deed </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">25.05.2007. Subsequently, the accused executed the registered\r\nsale deed in favour of the complainant on 10.09.2007. Later,\r\nwhen the complainant went near the site, one Smt.A.Sadhana\r\nobstructed her by claiming that she is an absolute owner of the\r\nsaid property since she purchased the same vide sale deed dated\r\n15.05.2002 from the vendor of the accused. She also stated\r\nthat she has filed a case in O.S.No.7990/2007 before the City\r\nCivil Court, Bangalore against the accused and her husband. The\r\ncopy of the caveat petition also shown by her. According to her,\r\nthe accused has sold the same property to the complainant by\r\nmisrepresenting the facts and without disclosing the defect title\r\nof the property. After few days, the complainant came to know\r\nthe fraud played by the accused and the accused agreed to\r\nreturn the sale consideration. Accordingly, the accused issued\r\nthe cheque bearing No.208134 dated 15.03.2008 for a sum of\r\nRs.10,00,000/- drawn on Canara Bank, Frazer Town Branch,\r\nBengaluru and promised that she will take back the cheque and\r\npay the cash. Afterwards, the accused did not come forward to\r\npay the cash and therefore, the complainant presented the\r\ncheque for encashment through her banker i.e., Karnataka Bank, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Murphy Town, Bengaluru. The said cheque was dishonoured for\r\nthe reason \'the payment stopped by the drawer\'. Subsequently,\r\nshe issued the legal notice to the accused on 07.08.2008 calling\r\nupon to pay the cheque amount within 15 days. The notice was\r\nserved to the accused and on 21.08.2008, she replied to the\r\nlegal notice denying her liability. Since the accused failed to\r\nmake the payment, the complainant filed the complaint before\r\nthe learned XIV Addl. CMM, Bangalore under Section 200 of\r\nCr.P.C r/w Section 138 of the Act to take cognizance of the\r\noffence under Section 138 of the Act and to punish her for the\r\nsaid offence.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. Having heard the learned counsel for the parties, the\r\nonly point that would arise for my consideration is:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\"Whether the learned Magistrate is justified in\r\nacquitting the accused/respondent for the offence\r\npunishable under Section 138 of the Act?</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. Though the learned counsel for the complainant,\r\nvehemently, contended that the complainant has fulfilled all the\r\nrequirements under Section 138 (A to C) of the Act and the\r\naccused has admitted the cheque as well as the signature on it,\r\nthe legal presumption exists in favour of the complainant in\r\nrespect of enforceable debt is concerned, the same does not\r\nholds much water, for the reason that such initial presumption is\r\nrebuttal in nature at any stage of the proceedings in view of the\r\nlaw laid down by the Hon\'ble Apex Court in catena of judgments\r\nincluding Rangappa vs. Mohan reported in (2010) 11 SCC <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">441. The accused can rebut such presumption by way of\r\nprobable defence.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>17. In the case on hand, on careful perusal of the above\r\nevidence, the accused rebutted the initial presumption by way of\r\nprobable defence that the cheque in question was issued as\r\nsecurity in respect of the civil dispute pertaining to the site sold\r\nby her to the complainant. It is well settled law that to rebut the\r\npresumption, standard of proof is that only on touchstone of\r\npreponderance of probabilities and not on touchstone of proof\r\nbeyond all reasonable doubt. In the present case, the accused\r\nhas put forward such probable defence. As such, it creates doubt\r\nabout the existence of legally enforceable debt or liability.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>18. In the case on hand, by perusal of the evidence and\r\nmaterial on record, it is clear that the cheque was issued in\r\nrespect of uncertain future liabilities as a security cheque.\r\nHence, the same does not attract the provision under Section\r\n138 of the Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>19. It is settled principle of law that the cheque issued in\r\nrespect of uncertain future, the liabilities would not attract the\r\nprovision under Section 138 of the Act. My view is fortified by\r\nthe judgment rendered by the Co-ordinate Bench of this Court,\r\nin the case of M/s Sathavahana Ispat Ltd., vs. Umesh\r\nSharma and Another reported in ILR 2006 KAR 3579.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. The defence taken by the accused that the cheque in\r\nquestion which was received by the complainant as a security\r\nappears to be probable. As such, the complainant has failed to\r\nprove that the accused was due a sum of Rs.10,00,000/- as on\r\n15.03.2008. From the evidence on record, it cannot be said that\r\nthe cheque in question i.e., Ex.P5 was issued by accused\r\ntowards repayment of the sale consideration as claimed by the\r\ncomplainant. The reasons assigned by the trial Court cannot be\r\nsaid to be either perverse or illegal and the trial Court has rightly\r\nacquitted the accused for the offence punishable under Section\r\n138 of the Act.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. The appeal, being devoid of merit, deserves to be\r\ndismissed and accordingly, it is dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '336fbed78904db575c90d8c46734ee5d.jpeg', '1356c8365b3e77d3243eb62c6d5e6649.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-04', 1, '', '', '2023-08-03 12:22:19', '2023-08-04 03:17:39'),
(3292, 'AMm8ul2EFzBVjRoZ8e82VqtrD', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '  Summons to produce document or other thing under Section 91 of Cr.P.C. The power is not limited to the enquiry or investigation but it would also extend for trial. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Aravind Sankar Navalgund Vs State By CBI.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 101480 of 2023 decided on 24 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice V. Srishananda.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Brief facts of the case are as under:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> Petitioners are facing trial in respect of alleged bank\r\nfraud in Special C.C. No.56/2012. Charges have been\r\nframed as long back as on 25.07.2010. Trial is under\r\nprogress. In respect of alleged fraud, there was a\r\ndepartmental enquiry held by the Union Bank of India,\r\nFront Road Branch, Bijapur. The enquiry was also further\r\ncarried out by the Union Bank of India, Regional Office,\r\nBelagavi. According to the petitioners there is an\r\ninspection report conducted by Sri.V.K.Jain who was the\r\nChief Manager from Mumbai and he has furnished a\r\nreport. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>6. An application came to be filed under Section\r\n91 of Cr.P.C. in this regard as attempt made by the\r\npetitioners to obtain the said copy through Right to\r\nInformation Act (hereinafter referred to as \'RTI Act\' for\r\nshort) came to be rejected by the concerned bank. The\r\nlearned trial Judge after entertaining the objections filed\r\nby the prosecution, allowed the application in part and\r\ndirected to summon 14 documents out of 27 documents\r\nthat were sought to be summoned.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Section 91 of Cr.P.C. plays a vital role in\r\nunearthing the truth. It has got vital role to play in any\r\ngiven trial in not only facilitating the parties to place\r\nevidence on record, but also empowers the Court at any\r\nstage to summon the document, which the parties want to\r\nrely upon.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n13. Section 91 of Cr.P.C. reads as under:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\"91. Summons to produce document or other thing.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>(1) Whenever any Court or any officer in charge of a\r\npolice station considers that the production of any\r\ndocument or other thing is necessary or desirable\r\nfor the purposes of any investigation, inquiry, trial\r\nor other proceeding under this Code by or before\r\nsuch Court or officer, such Court may issue a\r\nsummons, or such officer a written order, to the\r\nperson in whose possession or power such\r\ndocument or thing is believed to be, requiring him\r\nto attend and produce it, or to produce it, at the\r\ntime and place stated in the summons or order.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span lang=\"EN-US\">\r\n(2) Any person required under this section merely to\r\nproduce a document or other thing shall be deemed\r\nto have complied with the requisition if he causes  </span><span style=\"font-size: 12pt;\">such document or thing to be produced instead of\r\nattending personally to produce the same.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><i>(3) Nothing in this section shall be deemed-</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><i>\r\n(a) to affect sections 123 and 124 of the Indian\r\nEvidence Act, 1872 (1 of 1872 ), or the Bankers\'\r\nBooks Evidence Act, 1891 (13 of 1891 ) or</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><i>\r\n(b) to apply to a letter, postcard, telegram or other\r\ndocument or any parcel or thing in the custody of\r\nthe postal or telegraph authority.\"</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>\r\n14. On careful reading of the language employed in\r\nthe said provision of law, it is crystal clear that application\r\nof Section 91 of Cr.P.C. would not limit itself to the\r\nenquiry or the investigation but it would also extend for\r\ntrial. Therefore, the trial Court considered the application\r\nfiled by the petitioners in its proper sense and by virtue of\r\nthe impugned order, summoned 14 documents out of 27\r\ndocuments that were sought to be summoned.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. When the application is filed by the petitioners\r\nas accused specifically mentioning that they could not\r\nproduce the report given by Sri.V.K.Jain and their attempt\r\nin getting that document failed, directing accused No.1\r\nagain to produce copy of the same would not stand to\r\nreason. The attempt made by the petitioners to obtain\r\nsuch document through RTI Act remained unsuccessful\r\nand therefore there was sufficient ground laid by the\r\npetitioners for seeking summoning of the said document.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. It is admitted fact that copy of inspection report\r\nwould not be furnished to the accused at that stage as\r\nthey were not facing any proceedings.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. The investigation officer ought to have collected\r\nsuch document in the true course of investigation but\r\nfailed to do so for the reasons best known to him.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. When investigation agency has not collected\r\nsuch document, opposing the application seeking\r\nsummoning of the such document cannot be countenanced\r\nin law as it would affect the concept of fair trial insofar as\r\npetitioners are concerned. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> Criminal petitions are allowed in part.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n Application filed by the petitioners under Section 91\r\nof Cr.P.C. which is partly allowed is further allowed in part. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'eae477e304e5ec21f2a32c033f24cd12.JPG', '008bb235e62b5612961acc463d1ea032.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-04', 1, '', '', '2023-08-03 14:17:30', '2023-08-04 06:35:53');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3293, 'g8NCQz0qsqNjcen9Fe9a7HfaR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Anti-Corruption Law & Service Rules. Borrowing authority can entrust an enquiry to the Lokayukta without obtaining prior permission/ approval of the lending authority. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Khaja Sadduruddin Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 200400 of 2021 decided on 26 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioner claims to have been appointed as\r\nJunior Engineer in the Public Works Department\r\n(PWD for short) and was deputed to the Panchayat\r\nRaj Department (PRD for short) and while working as\r\nAssistant Executive Engineer in the said Department,\r\nvide letter dated 26.06.2007, the District Social\r\nWelfare Officer of Gulbarga asked the petitioner to\r\ninspect and submit a report as regards construction\r\nwork of the Sakpal Pre-Metric Hostel at Kurikot and\r\nan inspection report was submitted. When it was\r\nalleged that the petitioner had taken a bribe of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rs.5,000/-, in pursuance thereof, a complaint came\r\nto be filed before the Lokayukta Police, Gulbarga,\r\nregistered as Crime No.9/2007 for the offences\r\npunishable under Sections 7, 13(1)(d) r/w Section\r\n13(2) of the Prevention of Corruption Act, 1988,\r\nwherein he was tried and acquitted on 16.03.2012.\r\nSubsequent thereto, suo-moto proceedings were\r\ninitiated by respondent No.3-Upalokayukta against\r\nthe petitioner and a report came to be submitted\r\nunder Section 12(3) of the Karnataka Lokayukta Act,\r\n1984. The second respondent-Under Secretary,\r\nRural Development and Panchayat Raj Department\r\nvide its order dated 09.11.2011 entrusted the\r\nenquiry under Rule 14-A of the Karnataka Civil\r\nServices (Classification, Control and Appeal) Rules,\r\n1957 (for short, hereinafter referred to as \'CCA\r\nRules\') which inturn came to be entrusted to the\r\nAdditional Registrar of Enquiries-4 of the Lokayukta\r\non 19.11.2011 vide Annexure-B. The enquiry\r\nproceeding having been completed, recommendation </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was submitted on 28.10.2019 vide Annexure-F. It is\r\nthereafter that a show cause notice came to be\r\nissued to the petitioner on 15.02.2021 vide\r\nAnnexure-G. It is challenging the same that the\r\npetitioner is before this Court.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The points that would arise for determination are:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Whether the Borrowing Authority can\r\nentrust an enquiry to the Lokayukta\r\nwithout obtaining prior permission/\r\napproval of the Lending Authority?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Whether the present writ petition is\r\nmaintainable?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. What Order? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. Answer to Point No.(1): Whether the Borrowing\r\nAuthority can entrust an enquiry to the Lokayukta\r\nwithout obtaining prior permission/approval of the\r\nLending Authority?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">9.1. It is not in dispute that the petitioner has been\r\nappointed in PWD and subsequently, deputed to\r\nthe PRD. It is while he was working\r\nas Assistant Executive Engineer of the PRD that\r\ninspection report was submitted as regards\r\ncertain works of which he was incharge wherein\r\nit was alleged that he has taken bribe of\r\nRs.5000/-. The delinquency and/or corruption </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">charge had occurred while he was in the PRD is\r\nalso not in dispute. The Lokayukta Police,\r\nGulbarga now Kalaburagi registered Crime\r\nNo.9/2007 for offences punishable under\r\nSections 7, 13(1)(d) r/w Section 13(2) of the\r\nPrevention of Corruption Act 1988 as regards\r\naforesaid allegation where he was tried and\r\nacquitted on 16.03.2012.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.2. Suo-moto proceedings were also initiated by\r\nthe Lokayukta and a report under Section 12(3)\r\nof the Act was also submitted. The suo-moto\r\nproceedings being initiated under the Lokayukta\r\nAct, the same can only relate to grievances or\r\nallegation under the Lokayukta Act. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.5. By referring to Rule 2(a) of the CCA\r\nRules dealing with the definition of Appointing\r\nAuthority, he submits that in the present case\r\nthe Appointing Authority is the PWD and by\r\nrelying on the definition of Disciplinary\r\nAuthority under Rule 2(c) of the CCA rules, he\r\nsubmits that the authority competent would\r\nnecessarily mean the Appointing Authority.\r\nTherefore, it is only the PWD who could have\r\nreferred the matter for enquiry and not the\r\nPRD.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.7. Rule 2(c) of the CCA Rules deals with\r\nDisciplinary Authority inasmuch as, that\r\nrule would come into play only when a\r\ndisciplinary order is to be passed and not at the\r\nstage of initiation of the disciplinary\r\nproceedings.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n9.8. Rule 14-A of the CCA Rules is pressed into\r\nservice by Sri.Avinash A.Uplaonkar, learned\r\ncounsel for the petitioner to contend that it is\r\nonly the Appointing Authority who can entrust\r\nenquiry to the Lokayukta. Reading of the entire\r\nprovision does not substantiate such a\r\ncontention.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n9.9. In terms of sub-rule (1) of Rule 14-A of CCA\r\nRules, it only mandates that the provisions of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sub-rule (2) thereof would be applicable for the\r\npurposes of proceeding against the Government\r\nServants when the alleged misconduct has\r\nbeen investigated by the Lokayukta or an\r\nUplokayukta either under the provisions of the\r\nKarnataka Lokayukta Act, 1984 or on a\r\nreference from the Government or where\r\noffences alleged against them are punishable\r\nunder the Prevention of Corruption Act, 1947 or\r\nthe Prevention of Corruption Act, 1988 has\r\nbeen investigated by the Karnataka Lokayukta\r\nPolice before 21.12.1992. Thus, sub-rule (1) of\r\nRule 14-A of CCA Rules makes sub-rule (2)\r\napplicable notwithstanding anything contained\r\nin Rules 9 to 11-A and 13 of the CCA Rules.\r\nRule 14-A of the CCA Rules only speaks of the\r\nprocedure.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9.10.The relevant provision to consider who the\r\nDisciplinary Authority is would be Rule 9 of the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">CCA Rules which designates certain officers to\r\nbe the disciplinary authorities. In terms\r\nthereof, in respect of the petitioner the\r\nDisciplinary Authority would be the Secretary of\r\nthe PWD who has appointed him.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.12.In terms thereof, the Governor or any other\r\nauthority empowered by him may institute\r\ndisciplinary proceedings or direct the\r\nDisciplinary Authority to initiate disciplinary\r\nproceedings. In terms of sub-rule (2) thereof,\r\nthe Disciplinary Authority competent under\r\nthese rules to impose any of the penalties\r\nspecified in clauses (i) to (iv-a) of Rule 8 may\r\ninstitute disciplinary proceedings against any\r\nGovernment Servant. Again, I do not see any\r\ndistinction made here as regards Lending or the\r\nBorrowing Authority and/or for disciplinary\r\nproceedings to be only initiated by the\r\nDisciplinary Authority.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n9.13.The above provisions relating to officers within\r\nthe department, Rule 15 of the CCA Rules is\r\na provision which deals with Lent Officers.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.14.In terms of this rule, the Borrowing Authority\r\nshall have the power of the Appointing\r\nAuthority for the purpose of placing him under\r\nsuspension and of the Disciplinary Authority for\r\nthe purpose of taking disciplinary proceeding\r\nagainst him. There is a check and balance\r\nbrought about by the introduction of proviso to\r\nsub-rule (1) of Rule 15 of the CCA Rules which\r\nmandates that the Borrowing Authority shall\r\nnot take any disciplinary proceedings against\r\nsuch Government Servant or place him under\r\nsuspension before the approval of the Lending\r\nAuthority.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9.15.In terms of sub-rule (2) thereof, the Borrowing\r\nAuthority if of the opinion that if any of the\r\npenalties specified in clauses (i) to (iv-a) of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rule 8 should be imposed on him, it may, in\r\nconsultation with the Lending Authority, pass\r\nsuch orders on the case as it may deem\r\nnecessary. In terms of sub-clause (ii) of subrule (2) of Rule 15, if the Borrowing Authority is\r\nof the opinion that the penalties specified in\r\nclauses (v) to (viii) of Rule 8 should be imposed\r\non such Lent Officer, it shall replace the\r\nservices at the disposal of the Lending Authority\r\nand transmit it to the proceedings of the inquiry\r\nand thereupon Lending Authority may, if it is\r\nthe Disciplinary Authority pass such orders\r\nthereon as it deems necessary. Thus, in terms\r\nof sub-rule (1) of Rule 15 of the CCA Rules, the\r\nBorrowing Authority shall have the powers of\r\nthe Appointing Authority for placing Lent Officer\r\nunder suspension and of the Disciplinary\r\nAuthority for the purpose of taking disciplinary\r\nproceedings against him. It can also impose\r\npenalty specified under clauses (i) to (iv-a) of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Rule 8 in consultation with the Lending\r\nAuthority. It is only when penalties under\r\nclauses (v) to (viii) of Rule 8 were to be\r\nimposed, then the Lent Officer’s services has to\r\nbe placed at the disposal of the Lending\r\nAuthority. Thus, though Rules 9, 10-A and 14-\r\nA of the CCA Rules speak of the Disciplinary\r\nAuthority, it is only Rule 15 which speaks of the\r\nLent Officer and the powers of the Borrowing\r\nAuthority.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>9.16.Rule 15 of the CCA Rules confers power on the\r\nBorrowing Authority to initiate disciplinary\r\nproceedings in the same manner as that of the\r\nAppointing Authority or the Disciplinary\r\nAuthority.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n9.17.Thus, the Borrowing Authority steps into the\r\nshoes of the Appointing Authority or the\r\nDisciplinary Authority insofar as initiating\r\ndisciplinary proceedings are concerned.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">However, insofar as levy of penalty is\r\nconcerned, the same would have to be done in\r\nconsultation with the Lending Authority. If\r\npenalties specified in clauses (i) to (iv-a) of\r\nRule 8 are to be imposed and if the Borrowing\r\nAuthority and the Lending Authority have a\r\nconsensus, the penalty would ultimately be\r\nimposed by the Borrowing Authority. It is only\r\nwhen there is difference of opinion, the services\r\nwould have to be placed at the disposal of the\r\nLending Authority for imposing penalties or\r\notherwise. Thus, insofar as penalties under\r\nclauses (i) to (iv-a) of Rule 8 are concerned,\r\nthe Borrowing Authority itself could impose\r\npenalties if there is consensus with Lending\r\nAuthority.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n9.18.In the present case, the Borrowing Authority\r\nnamely, the PRD who steps into the shoes of\r\nthe Appointing Authority in terms of sub-rule </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(1) of Rule 15 of CCA Rules, has entrusted the\r\nenquiry to the Lokayukta. The enquiry having\r\nbeen completed and the recommendation of the\r\nUplokayukta has been forwarded to the actual\r\nAppointing Authority namely PWD and the\r\nsecond show cause notice has been issued by\r\nthe PWD and not the Borrowing Authority.\r\nThus, the punishment which is sought to\r\nbe imposed of compulsory retirement is that\r\ndone by PWD and not the PRD.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9.19.In the above background, I am of the\r\nconsidered opinion that there is no infirmity in\r\nthe action taken by the Borrowing Authority.\r\nThe Borrowing Authority can entrust enquiry to\r\nthe Lokayukta in terms of sub-rule (1) of Rule\r\n15 of CCA Rules without obtaining any prior\r\npermission/approval of the Lending\r\nAuthority. The imposing of penalties in terms of\r\nclauses (i) to (iv-a) of Rule 8 of CCA Rules </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">would have to be done in consultation with the\r\nLending Authority and imposition of penalties\r\nunder clauses (v) to (viii) of Rule 8 of CCA\r\nRules can be done only by the Lending\r\nAuthority by Borrowing Authority replacing the\r\nservices with the Lending Authority, the second\r\nshow cause issued by the Lending Authority, it\r\nis for the Lending Authority to impose\r\npunishment under clauses (v) to (viii) of Rule 8\r\n of CCA Rules, which includes the punishment\r\nof compulsory retirement.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>10. Answer to Point No.(2): Whether the present writ\r\npetition is maintainable?\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10.1.In view of my answer to point No.(1), the\r\npetitioner being a Civil Servant cannot\r\nchallenge the second show cause notice by way\r\nof the present Writ Petition. There being\r\nalternative and efficacious remedy in terms of\r\nan appeal provided to the Karnataka </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Administrative Tribunal, it is that remedy the\r\npetitioner had to exercise.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n\r\n11. Answer to Point No.(3): What Order?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> The Writ Petition stands dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f037692c03dd7a3330823f1f3ce868ad.JPG', '9d34d9a1bf8b5baf6ea67ab3dee68ce0.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-04', 1, '', '', '2023-08-03 14:34:14', '2023-08-04 10:23:29');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3294, 'AHJblg6rpazveOO1FMjc6UJdg', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Probate or letters of administration in respect of a Will made outside Bengal, Madras and Bombay need not be obtained. Authorities cannot insist on probate of Will to recognise right over immovable property. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>A.M. Basavarajappa Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 8023 of 2020 decided on 2 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The issue in the lis arises out of a solitary chunk of facts concerning a particular property. The petitioner in W.P.No.8023 of 2020 seeks quashing of endorsement dated 07-03-2020, issued by the 2nd respondent/Karnataka Housing Board (hereinafter referred to as ‘the Board’ for short) by which, the Board seeks probate of the Will for release of sites in favour of the petitioner in terms of the judgment and decree dated 20-06-2019 passed in the suit – O.S.No.182 of 2014. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>In Writ Petition No.3123 of 2017, the petitioners are all claiming to be allottees of sites in their favour and have called in question allotment memorandum dated 03-03-2015, issued by the Board revising the price of sites from `290/- per square feet to `791/- per square feet unilaterally. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>Writ Petition No.17555 of 2016 is filed by the very petitioner in W.P.No.8023 of 2020 calling in question resolution of the Board dated 05-01-2015 and an order dated 19-03-2016 whereby, the Board refuses to accede to the request of the petitioner for increase in the value of per square feet of the sites. </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">4.<span style=\"white-space: pre;\">	</span>Therefore, the crux of the issue in all these cases is the property/land belonging to one A.M.Parameshwarappa, the uncle of the petitioners in W.P.Nos.8023 of 2020 & 17555 of 2016 and others claiming to be allottees of the very same property and, therefore, all the petitions are taken up together and considered by this common order.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\">19.<span style=\"white-space: pre;\">	</span>The afore-narrated intricate facts are not in dispute as they are a matter of record. The uncle of the petitioner in W.P.8023 of 2020 being the owner of the property is not in dispute. All other agreements that are entered into between the Board and the uncle of the petitioner are all a matter of  record. Sri A.M.Parameshwarappa, uncle of the petitioner did not convey the property in favour of the Board. It was only for the purpose of sale of sites. The first attempt with an agreement of 5% commission did not yield a single result as no applicant came forward showing any interest in the sites. Later, the uncle of the petitioner enters into a Joint Development Agreement with the Board. Disputes galore between the Board and the uncle of the petitioner which led the uncle of the petitioner to file a civil suit in O.S.No.182 of 2014 seeking a relief of declaration and injunction against the Board and a direction was also sought for re- conveyance of the property in favour of the uncle of the petitioner.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>The site numbers are also mentioned in the decree as they were part of the schedule. The total sites are 22 in number and the land measured was close to 4 acres. The aforesaid decree dated 20-06-2019 has become final. During the pendency of aforesaid proceedings, several disputes with regard to fixation of price of sites between the Board and Sri A.M.Parameshwarappa led the uncle of the petitioner to file Writ Petition No.17555 of 2016 disputing the price fixed at `290/- per sq.ft. or even `791/- per sq.ft. by the Board for allotment of sites. Therefore, there was no concrete decision on a consensus for price fixation qua allotment. In the meantime, the Board had created certain rights in favour of allottees by receiving certain amounts. These rights have not been crystallized into indefeasible right as no sale deed was executed by the Board as it was only at the stage of allotment and receipt of money. In the teeth of all these proceedings, the uncle of the petitioner dies and during his life time, he had executed a Will on 27-07-2011 bequeathing entire subject property to the petitioner in W.P.No.8023 of 2020.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b> 20.<span style=\"white-space: pre;\">	</span>The issue now is, whether the Board can wriggle out of the decree quoted supra which is in favour of the uncle of the petitioner directing re-conveyance of 22 sites and whether it is correct in insisting the Will to be probated as a condition precedent for implementation of judgment and decree dated 20-06-2019 in O.S.No.182 of 2014.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space:pre\">	</span>Sections 213 and 57 of the Indian Succession Act require to be noticed, and they read as follows: </b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>“57. Application of certain provisions of Part to a class of wills made by Hindus, etc.—The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply—</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i> (a)<span style=\"white-space:pre\">	</span>to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i> (b)<span style=\"white-space:pre\">	</span>to all such wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits; and</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>(c)<span style=\"white-space:pre\">	</span>to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b). Provided that marriage shall not revoke any such will or codicil. …<span style=\"white-space:pre\">	</span>…<span style=\"white-space:pre\">	</span>…</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>213. Right as executor or legatee when established.—</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>(2) This section shall not apply in the case of wills made by Muhammadans or Indian Christians, and shall only apply—</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>(i)<span style=\"white-space:pre\">	</span>in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of classes specified in clauses (a) and (b) of Section 57, and</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i> (ii)<span style=\"white-space:pre\">	</span>in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amend-ment) Act, 1962, where such wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits.”<br></i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b>Consideration and a decision on this issue need not detain this Court for long or delve deep into the matter. A single Judge of this Court has considered these provisions and has held that a property which belongs to a Hindu, probate of the Will need not be the condition precedent to execute the contents of the Will.  The learned single Judge of this Court in SRINIVASA v. SRINIVASA RAO has held as follows:<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>\"2... it was contended that the Petition is not maintainable without the petitioners obtaining the probate of the said Will in accordance with the provisions of Section 213 of the Indian Succession Act. The Trial Court considered the said objection as a preliminary issue and rejected the eviction Petition as not maintainable and beyond the jurisdiction of the Court.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>5.<span style=\"white-space:pre\">	</span>A reading of Clause (a) of Section 57 r/w Section 213 makes it clear that it could only apply to cases when the property or properties bequeathed are situate in the territories mentioned in Clause (a) of Section 57 of the Act. If the properties and the persons, who may be Hindus, are outside the territory mentioned under Section 57(a), the provisions of Section 213 are not attracted.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>6.<span style=\"white-space:pre\">	</span>Mr. Anandaram, Learned Counsel for the Respondent herein relies upon the decision of the Supreme Court in Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose*, in which it is held that Section 213 creates a bar to establishment of any right under Will by an executor or a legatee unless probate or letters of administration have been obtained. But it is seen that the parties in the said case before the Supreme Court were Christians, to whom undoubtedly Section 57 does not apply. It appears to me that Section 57 is an exception the general rule under the Indian Succession Act that no probate is required in respect of the Will of a deceased Hindu, Buddhist, Sikh or Jaina & Muslim etc. However all the relevant provisions under the said Act requiring obtaining of the probate apply to the Christians.</i></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><font face=\"Calibri, sans-serif\"><b><i>7.<span style=\"white-space:pre\">	</span>In this view of the matter, the Trial Court was not correct in holding that the petitioners are not entitled to maintain the eviction Petition for want of a probate in respect of the registered Will of Smt. Akkayyamma. It may be mentioned that the due execution and existence of the said Will is not seriously disputed, and it is not the case of either party that there is any rival claimant in respect of the property in question.”</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><font face=\"Calibri, sans-serif\"><br></font>Later, another learned single Judge of this Court in CHIKKANA v. LOKESH AND OTHERS2 has held as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><i>\"12.... The provisions of obtaining the probate may not be applicable to the cases of Wills executed by a Hindu, if the said Will does not come within the classes of the Wills specified in Section 57(a) and (b). Section 57 specifies the Wills to which provisions may apply are, the Wills made by any Hindus, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which were subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay or in cases where Wills are made outside those territories to the extent they relate to the properties situated within the limits of territories of Bengal, Madras and Bombay and not others. In the case of Srinivas v. K.V. Srinivasa Rao it has been laid down that,</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><i> “A reading of Clause (a) of Section 57 read with Section 213 makes it clear that it could only apply to cases when the property or properties bequeathed are situate in the territories mentioned in Clause (a) of Section 57 of the Act.” It further laid it down that if properties and persons who may be Hindus are outside the territory mentioned under Section 57(a), the provisions of Section 213 are not attracted and on that basis, the Court held that provisions of Section 213 did not apply to the Wills like the present one.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><i>13. In this view of the matter, there was no question of Section 213 being applied. There was no question of probate. The Court below appears to have rejected the application for commission on this erroneous view. Really the Court having failed to apply its mind to the relevant ingredients of Order 26 Rule 10 of Code of Civil Procedure and by taking an erroneous view of Section 213, it has illegally refused to exercise the jurisdiction vested in it by rejecting the application I.A. VIII moved by the defendant/revision petitioner.\"</i><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>The Apex Court holds that the provisions under Sections 213 and 57 of the Indian Succession Act are not discriminatory tracing the history of those provisions. The Apex Court in a judgment rendered on 24th July 2019 in the case of KANTA YADAV v. OM PRAKASH YADAV AND OTHERS4 holds that probate or letters of administration will not be required to be obtained by a Hindu in respect of a Will made outside those territories regarding immovable properties. The territories are a part of the provision itself. They are the territories of Bengal, Madras and Bombay. The Apex Court holds as follows:<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><i>\"11.<span style=\"white-space:pre\">	</span>The statutory provisions are clear that the Act is applicable to wills and codicils made by any Hindu, Buddhist, Sikh or Jain, who were subject to the jurisdiction of the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras or Bombay — [clause (a) of Section 57 of the Ac]. Secondly, it is applicable to all wills and codicils made outside those territories and limits so far as relates to immovable property within the territories aforementioned, clause (b) of Section 57. Clause (c) of Section 57 of the Act relates to the wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of January, 1927, to which provisions are not applied by clauses (a) and (b). However, sub-section (2) of Section 213 of the Act applies only to wills made by Hindu, Buddhist, Sikh or Jain where such wills are of the classes specified in clauses (a) or (b) of Section 57. Thus, clause (c) is not applicable in view of Section 213(2) of the Act.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><i> 12.<span style=\"white-space:pre\">	</span>In view thereof, the wills and codicils in respect of the persons who are subject to the Lieutenant Governor of Bengal or who are within the local limits of ordinary original civil jurisdiction of the High Court of Madras or Bombay and in respect of the immovable properties situated in the above three areas. Such is the view taken in the number of judgments referred to above in the States of Punjab and Haryana as well as in Delhi as also by this Court in Clarence Pais [Clarence Pais v. Union of India, (2001) 4 SCC 325]”.</i><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>Following the said judgment of the Apex Court, a learned single Judge of the High Court of Kerala on the very issue in the case of DR.P.C. BEENAKUMARI v. STATE OF KERALA5 has held as follows: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><i>“7. The testator of the Will is a Hindu Woman. The question is whether the rejection by the 2nd respondent, of the claim of the petitioner to pay the amounts belonging to the Testator and bequeathed to the petitioner by a Will, for the reason that the Will is not probated, is justified. Section 213 of the Indian Succession Act, 1925 provides as to when the right as Executor or Legatee is established<br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><i>A combined reading of Sections 213 and 57 of the Succession Act would show that where the parties to the will are Hindus or the properties in dispute are not in territories falling under Sections 57(a) and (b), Section 213(2) of the Succession Act applies and Section 213(1) has no application. As a consequence, a probate or letters of administration will not be required to be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable properties situate outside those territories.”</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><i>14.<span style=\"white-space:pre\">	</span>Therefore, it is evident that the requirement of probating a Will is applicable to Wills and codicils made by Hindus who were subject to the jurisdiction of the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras or Bombay.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><i>15.<span style=\"white-space:pre\">	</span>In the circumstances, the stand of the 2nd respondent that the amounts left behind late Gouri Amma and bequeathed to the petitioner cannot be paid to the petitioner without probating the Will, cannot be sustained. Respondents 2 to 4 are therefore directed to release to the petitioner the Treasury Savings Bank amount covered by Exts.P5 and P6 in the name of K.R. Gouri Amma.”<br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>The aforesaid judgments were in fact following a decision of the three Judge Bench of the Apex Court in the case of MRS.HEM NOLINI JUDAH v. MRS. ISOLYNE SAROJBASHINI BOSE AND OTHERS6 wherein it is held as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><i>\"The words of Section 213 are not restricted only to those cases where the claim is made by a person directly claiming as a legatee. The Section does not say that no person can claim as a legatee or as an executor unless he obtains Probate or letters of administration of the will under which he claims. What it says is that no right as an executor or legatee can be established in any Court of Justice, unless Probate or letters of administration have been obtained of the will under which the right is claimed, and therefore it is immaterial who wishes to establish the right as a legatee or an executor. Whosoever wishes to establish that right, whether it be a legatee or an executor himself or somebody else who might find it necessary in order to establish his right to establish the right of some legatee or executor from whom he might have derived title, he cannot do so unless the will under which the right as a legatee or executor is claimed has resulted in the grant of a Probate or letters of administration. Therefore, as soon as the appellant wanted to establish that Mrs Mitter was the legatee of Dr Miss Mitter and was therefore entitled to the whole house she could only do so if the will of Dr Miss Mitter in favour of Mrs Mitter had resulted in the grant of Probate or letters of administration. Admittedly that did not happen and therefore Section 213(1) would be a bar to the appellant showing that her mother was the full owner of the property by virtue of the will made in her favour by Dr Miss Mitter. The difference between a right claimed as a legatee under a will and a right which might arise otherwise is clear in this very case. The right under the will which was claimed was that Mrs Mitter became the owner of the entire house. Of course, without the will Mrs Mitter was an equal heir with her daughters of the property left by Dr Miss Mitter, as the latter would be taken to have died intestate, and would thus be entitled to one-fourth. It will be seen from the judgment of the High Court that it has held that the appellant is entitled to the one-fourth share to which Mrs Mitter was entitled as an heir to Dr Miss Mitter and granted the plaintiff- respondent a declaration with respect to only half the house. Therefore, the High Court was right in holding that Section 213 would bar the appellant from establishing the right of her mother as a legatee from Dr Miss Mitter as no Probate or letters of administration had been obtained of the alleged will of Dr Miss Mitter in favour of Mrs Mitter. The contention of the appellant on this head must therefore fail.”</i><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>What would unmistakably emerge from the aforesaid judgments of the Apex Court, this Court and that of the High Court of Kerala is that, the Will that is now directed to be probated for transfer of 22 sites in favour of the petitioner in W.P.No.8023 of 2020 is unsustainable. The unsustainability is due to the very provisions of the Indian Succession Act. The Board, having a decree against it, as obtained by the uncle of the petitioner and that decree having become final, cannot now contend that the Will has to be probated and only then, the fruits of the decree will be granted to the petitioner in Writ Petition No.8023 of 2020. Therefore, the resolution and the endorsement/order dated 07-03-2020, in W.P.No.8023 of 2020 is rendered unsustainable. The petitioner would also become entitled for a mandamus to the Board for re-conveyance of sites in favour of the petitioner in Writ Petition No.8023 of 2020, in terms of the decree so granted by the civil Court in O.S.No.182 of 2014 in terms of its decree dated 20-06-2019. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>22.<span style=\"white-space:pre\">	</span>Insofar as the fate of the petitioners in W.P.No.3123 of 2017 is concerned, they are persons who have deposited certain amount and are in possession of certain orders from various consumer fora, which have directed execution of sale deeds in their favour by the Board. The conflict now lies with the order of the Civil Court and that of the order of the District Consumer Forum. The order of the Civil Court has granted declaratory relief in favour of the uncle of the petitioner in W.P.No.8023 of 2020, which stands on a higher pedestal than the orders that are granted by the Consumer fora in favour of the petitioners. Therefore, those petitioners are within their rights to avail such remedy as is available in law against the petitioner in Writ Petition No.8023 of 2020 or the Board as the case would be. No order in favour of the petitioners can be passed in Writ Petition No.3123 of 2027 in the teeth of the aforesaid findings in Writ Petition No.8023 of 2020. Writ Petition No.17555 of 2016 is rendered infructuous as no order become necessary to be passed in the light of the findings in Writ Petition No.8023 of 2020.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\" style=\"\"><b>(i)<span style=\"white-space:pre\">	</span>Writ Petition No.8023 of 2020 is allowed.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '6e2fcae70cf4b684bb3082d106927b54.jpeg', 'a58c909b81ef2c5e72073820fda46503.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-04', 1, '', '', '2023-08-03 15:43:31', '2023-08-04 08:10:30'),
(3301, 'RqhSNU0AENPtthuk1yhqq2Hgy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'A banker who answers description of State under Article 12 of the Constitution cannot act like a private lender. Abrupt stoppage of release of sanctioned loan is justiciable under Article 226 of the Constitution of India. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S. Legend Property and others Vs The Chief Manager SBI and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 11203 of 2023 decided on 31 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>First Petitioner, a registered Partnership Firm and the Second Petitioner being one of its Partners have presented this petition in the writ jurisdiction of this court for laying a challenge to the endorsement/notice dated 06.05.2023 issued by the 1st respondent-bank at Annexure-Q on the 2 nd respondent’s letter dated 24.03.2023.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. Having heard the learned counsel for the parties and having perused the petition papers, this court is inclined to grant indulgence in the matter for the following reasons:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">(a) The submission of learned Panel Counsel appearing for the respondent-bank as to availability of alternate remedy does not much impress the court. The fact matrix for adjudging this Writ Petition is substantiated from the pleadings of the parties and copies of the documents placed on record. In view of that, there is no reason for this court to deny remedy to the PetitionerFirm. The second contention that, the decision to stop releasing of the sanctioned loan has administrative characteristics and therefore the same does not merit a deeper examination at the hands of the Writ Court, also cannot be countenanced. It hardly needs to be stated that such a decision of the bank cannot be termed as purely administrative in character, apparently civil consequences following therefrom. It cannot be denied that the respondent-bank is an instrumentality of the State and its business is governed by the statutory guidelines promulgated by the Reserve Bank of India. Even otherwise, after A.K.KRAIPAK vs. U.O.I. AIR 1970 SC 150, the thin difference between administrative&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">decisions on the one hand and quasi-judicial decisions on the other has lost its significance in the realm of Administrative Law. What the Court has to see is the legal injury and the admissibility of redressal thereto in law. Both are visible to the naked eye. A Writ Court cannot turn away an injured litigant by quoting some jurisprudential theories; it is there to do justice to the aggrieved, of course in accordance with law</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(b) The contention of the Panel Counsel that in matters pertaining to loan transaction, no Writ Petition lies under Articles 226 &amp; 227 of the Constitution of India, is bit difficult to countenance and reasons for this are not far to seek: firstly, 1st Respondent is a Nationalized Bank whose transactions are largely governed by the Reserve Bank of India Guidelines which are animated by abundant public law elements and they have got statutory force. The field of banking business is occupied by several legislations and the Rules/Regulations promulgated thereunder; the Reserve Bank of India Act, 1934, the Banking Regulation&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Act, 1949, The Recovery of Debts and Bankruptcy Act 1993, SARFAESI Act, 2002, are a few to name; the RBI is a watchdog of finance &amp; economy of the nation, apart from being the prime banking institution of the country; it is conferred with the authority of issuing binding directions inter alia to the Public Sector Banks vide Central Bank of India V. Ravindra, 2002 (1) SCC 367 It is not a pure &amp; simple case of a private loan. The loan is sanctioned to the Firm; part of the loan has been already released; acting on the loan sanction letter, the petitioner Firm has undertaken a huge construction project; if the sanction is abruptly rescinded that too on the complaint of a spouse of a partner, the same would not augur well in public law.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(c) The action of the bank is hit by proper estoppel enacted in Sec. 115 of Indian Evidence Act, 1872 since the Petitioner-Firm has acted upon the loan sanction letter and has altered its position to its detriment by undertaking the construction project in question; it also offends the doctrine of promissory estoppel in the light of UNION OF</span><span style=\"font-size: 12pt;\">&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">INDIA vs. INDO-AFGHAN AGENCIES LTD., AIR 1968 SC 718. Mr.M.L.Tannan in his ‘Banking Law &amp; Practice in India’ 28th Edition, Lexis Nexis at paragraph 12.13 writes as under:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>“Where a party promises to give money and relying thereon the other party alters its position, the first party who made the promise cannot resile. Banks and financial institutions promising to lend moneys or sanctioning loans and the borrower investing in his project relying thereon will be hit by the principle of Promissory Estoppel”.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>As already mentioned above, the respondent-bank being an instrumentality of the State under Article 12 of the Constitution, even in matters like this, writ remedy can be granted to the aggrieved. This view gains support from a decision of the Apex Court in ABL INTERNATIONAL LIMITED vs. EXPORT CREDIT GUARANTEE CORPORATION OF INDIA LIMITED, (2004) 3 SCC 553 and GUJARAT STATE FINANCIAL CORPORATION vs. M/S. LOTUS HOTELS PVT. LTD., (1983) 3 SCC 379.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(e) The vehement submission of learned Sr. Adv. appearing for the 2nd respondent that fraud vitiates everything vide S.P.CHANGALAVARAYYA NAIDU vs JAGANNATH, AIR 1994 SC 853, is true, as a broad proposition of law since the days of Lord Edward Coke vide DE GREY, C.J. IN REX vs. DUCHESS OF KINGSTON 2 SMITH LC 687 (1766); however when it comes to the realm of Law of Contract, fraud is one of the grounds for avoiding an otherwise binding agreement, at the option of defrauded party vide Sec.19 of the Indian Contract Act, 1872 and it does not per se make such an agreement void ab initio. Thus there is a subtle difference between the effect of fraud in Private Law action and that in Public Law decisions. When there is a matrix involving an admixture of Public Law elements and the Private Law elements, fraud as a ground, has its own limitations &amp; parameters, as in the case at hand is. The issue as to fraud &amp; fabrication as would touch the subject loan arrangement cannot be addressed in the absence of proper parties (if not necessary parties) namely, the Firm &amp; other partners; it is only the 2nd petitioner against whom the suit is structured inter alia on the said ground.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(f) The issues are yet to be framed and the trial of suit will take its own time, regard being had to mounting pendency of cases. The ground of fraud &amp; fabrication needs to be established by cogent evidence; if a finding is recorded, it is inter parte and therefore will not bind the non-parties like the Firm and the bank. Thus, even if the suit succeeds, it cannot prejudice the interest of Petitioner-Firm as such; the Firm being the borrower, an abrupt stoppage of release of sanctioned loan, would jeopardize its interest, because of ongoing construction project that is founded on the loan arrangement in question. A banker who answers description of State under Article 12 of the Constitution cannot act like a private lender; its actions have to be animated with reason &amp; justice, which factors are militantly absent in the impugned endorsement/notice. Therefore the same is liable to be invalidated. The bank could not have issued the impugned endorsement/notice as against the Firm at large, at the instance of 2nd respondent.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the above circumstances, this Writ Petition succeeds;&nbsp;</b></p>', 'c15a3919be4bace86c4658b64b80ec90.JPG', 'd55bfc5f385f235cb288106874d3c3d7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-07', 1, '', '', '2023-08-07 11:01:39', '2023-08-07 08:08:13'),
(3302, 'DmAM6InkRrD94MZfWeKNWWgme', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Registration of FIRs. Karnataka High Court directs DGP to issue Circular to all Station House Officers to follow directions issued in Lalita Kumari\'s case. Circular to indicate disciplinary proceedings in case of lapse. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Vittal Vs The PSI of Bableshwar Police Station.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 201668 of 2023 decided on 20 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The grievance of the petitioner is that the complaint made by the petitioner on 18.11.2022 against certain persons has not been registered as a FIR by the respondent-police and no action has been taken thereon. A perusal of the complaint dated 18.11.2022 indicates that the complaint made was that there was an assault on the daughter-in-law of the petitioner/complainant, her cell phone was taken from her, she was abused and was threatened with death. The same amounts to cognizable offenses under the Indian penal code.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The Hon’ble Apex Court in Lalitha Kumari vs. State of Uttar Pradesh1 more particularly para 120 thereof, has held as under; Conclusion/Directions 120. In view of the aforesaid discussion, we hold:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.<br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>(a) Matrimonial disputes/family disputes</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>(b) Commercial offences</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>(c) Medical negligence cases</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>(d) Corruption cases</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months\' delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.<br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">4. It was but required for the police officer to register an FIR when the complaint discloses a cognizable offense. The complaint having been filed on&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">18.11.2022 and FIR not having been registered till date is impermissible and would also amount to dereliction of duty. This is not a stray case, there are many cases of the like nature which have come up before this Court and this Court has applied the principles laid down by the Apex Court in Lalitha Kumari\'s case and directed the registration of the FIR.</span><span style=\"font-size: 12pt;\">&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i. The writ petition is allowed.&nbsp;</b></span></p>', 'b96af715ce733af7f044db3b96a1db2b.JPG', 'b21be0b949e854aa1920c79938426434.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-07', 1, '', '', '2023-08-07 11:03:01', '2023-08-07 06:34:54');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3295, 'UbCSwcCxXfl5o4ou6YB3LBQHQ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Section 227 Cr.P.C. Application seeking discharge in the midst of trial is not maintainable especially when the earlier application was withdrawn. Supreme Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>State of Karnataka Lokayukta Police Vs S. Subbegowda.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 1598 of 2023 decided on 3 August 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Aniruddha Bose and Justice Bela M. Trivedi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The appellant – State of Karnataka Lokayukta Police by way of\r\ninstant appeal has assailed the judgment and order dated\r\n16.08.2018 passed by the High Court of Karnataka at Bengaluru in\r\nCriminal Petition No. 4463 of 2018 whereby the High Court has\r\nallowed the said petition by discharging the respondent (original\r\npetitioner-accused) from the offences charged under Section 13(1)\r\n(e) read with Section 13(2) of the Prevention of Corruption Act, 1988\r\n(hereinafter referred to as the said Act), on the ground that the\r\nsanction accorded to prosecute the respondent-accused by the\r\nGovernment was illegal and without jurisdiction.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The respondent was working as an Executive Engineer in the\r\nKarnataka Urban Water Supply and Drainage Board, Mandya </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Division, Mandya during the period 1983 to 2007. On the basis of\r\nthe Source Report dated 17.12.2007 submitted by the then Deputy\r\nSuperintendent of Police, Bengaluru Rural Division, Karnataka\r\nLokayukta, Bengaluru, a case being Crime No. 22 of 2007 (later\r\nnumbered as Crime No. 62 of 2008) came to be registered against\r\nthe respondent for the offence under Section 13(1)(e) read with\r\nSection 13(2) of the said Act. It was alleged, inter alia, that the\r\nrespondent-accused during his tenure in the office as an Executive\r\nEngineer had amassed the wealth disproportionate to his known\r\nsources of income. On the completion of the investigation, the\r\nInvestigating Officer had sent the papers to the State Government\r\nseeking sanction to prosecute the respondent as required in Section\r\n19(1) of the said Act. The Government of Karnataka on the basis of\r\nthe material placed before it, had accorded the requisite sanction by\r\nissuing the Government order dated 13.09.2010. Thereafter the\r\nchargesheet came to be filed in the Court of Principal District and\r\nSessions Judge, Bengaluru Rural District at Bengaluru wherein it\r\nwas alleged that respondent had abused his position as a public\r\nservant, had indulged into corrupt practices and had amassed\r\nwealth disproportionate to his known sources of income. The said </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">case was registered as Special Case No. 488 of 2011 before the\r\nsaid Court. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. In view of the afore-stated undisputed facts the following questions\r\narise for consideration before this Court:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Whether the High Court in exercise of its powers under\r\nSection 482 of CrPC could have discharged the respondentaccused from the charges levelled against him for the offences\r\nunder Section 13(1)(e) punishable under Section 13(2) of the\r\nsaid Act, despite the fact that the accused had not pressed for\r\nhis second application for discharge by submitting the Memo\r\ndated 02.12.2014 and despite the fact that after framing of the\r\ncharge by the Special Court on 23.12.2014, the trial had\r\nproceeded further and the prosecution had examined 17\r\nwitnesses in support of its case?\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) Whether the High Court in the criminal petition filed under\r\nSection 482 of the CrPC could reverse the findings recorded\r\nby the Special Court with regard to the validity of sanction,\r\nignoring the bar contained in sub-section (3) read with subsection (4) of Section 19 of the said Act?<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. As stated earlier, after having not succeeded in the first application\r\nseeking discharge under Section 227 of CrPC, in which the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner had raised the issue of sanction by contending that the\r\nsanction was accorded by the Government under Section 19(1) of\r\nthe said Act without any application of mind, the respondent accused had filed the second application again seeking his\r\ndischarge under Section 227 of CrPC by raising the issue of\r\nsanction by contending, inter alia, that the sanction order was\r\npassed mechanically by the Government and that the Investigating\r\nOfficer had suppressed the material produced by the respondent\r\noffering satisfactory explanations to the assets acquired by him.\r\nAdmittedly, the second application was not pressed for by the\r\nrespondent by submitting the Memo on 02.12.2014, wherein it was\r\nstated that the Court may proceed to frame charge against him.\r\nThus, by submitting the said Memo, the respondent-accused had\r\nspecifically not pressed for his contention with regard to the validity\r\nof sanction or error in granting the sanction by the Government, and\r\nhe specifically requested the Court to proceed further with the\r\nframing of charge. Considering the said memo, the trial court framed\r\nthe charge, and the prosecution examined as many as 17 witnesses\r\nin support of its case. At that stage, the respondent submitted the\r\nthird application which was in the nature of interlocutory application </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">again seeking the discharge under Section 227 of CrPC on the\r\nground that there was an error in the sanction order, the\r\nGovernment being not competent to grant the sanction under\r\nSection 19(1) of the said Act. The said application having been\r\ndismissed by the trial court, the High Court could not and should not\r\nhave entertained the petition under Section 482 of CrPC, which was\r\nin the nature of revision application, and reversed the findings\r\nrecorded by the trial court, in view of sub-section (3) read with subsection (4) of Section 19 of the said Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Having regard to the afore-stated provisions contained in Section 19\r\nof the said Act, there remains no shadow of doubt that the statute\r\nforbids taking of cognizance by the Court against a public servant\r\nexcept with the previous sanction of the Government/authority\r\ncompetent to grant such sanction in terms of clauses (a), (b) and (c)\r\nto Section 19(1). It is also well settled proposition of law that the\r\nquestion with regard to the validity of such sanction should be raised\r\nat the earliest stage of the proceedings, however could be raised at\r\nthe subsequent stage of the trial also. In our opinion, the stages of\r\nproceedings at which an accused could raise the issue with regard\r\nto the validity of the sanction would be the stage when the Court\r\ntakes cognizance of the offence, the stage when the charge is to be\r\nframed by the Court or at the stage when the trial is complete i.e., at\r\nthe stage of final arguments in the trial. Such issue of course, could\r\nbe raised before the Court in appeal, revision or confirmation, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">however the powers of such court would be subject to sub-section\r\n(3) and sub-section (4) of Section 19 of the said Act. It is also\r\nsignificant to note that the competence of the court trying the\r\naccused also would be dependent upon the existence of the validity\r\nof sanction, and therefore it is always desirable to raise the issue of\r\nvalidity of sanction at the earliest point of time. It cannot be gainsaid\r\nthat in case the sanction is found to be invalid, the trial court can\r\ndischarge the accused and relegate the parties to a stage where the\r\ncompetent authority may grant a fresh sanction for the prosecution\r\nin accordance with the law.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. The combined reading of sub-section (3) and (4) of Section 19\r\nmakes it clear that notwithstanding anything contained in the Code,\r\nno finding, sentence or order passed by the Special Judge shall be\r\nreversed or altered by a Court in appeal, confirmation or revision on\r\nthe ground of, the absence of, or any error, omission or irregularity in\r\nthe sanction required under sub-section (1), unless in the opinion of\r\nthe Court, a failure of justice has in fact been occasioned thereby.\r\nsub-section (4) further postulates that in determining under subsection (3) whether the absence of, or any error, omission or\r\nirregularity in the sanction has occasioned, or resulted in failure of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">justice, the Court shall have regard to the fact whether the objection\r\ncould and should have been raised at an earlier stage in the\r\nproceedings. The explanation to sub-section (4) further provides that\r\nfor the purpose of Section 19, error includes “competency of the\r\nauthority to grant sanction”. Thus, it is clear from the language\r\nemployed in sub-section (3) of Section 19 that the said sub-section\r\nhas application to the proceedings before the Court in appeal,\r\nconfirmation or revision, and not to the proceedings before the\r\nSpecial Judge. The said sub-section (3) clearly forbids the court in\r\nappeal, confirmation or revision, the interference with the order\r\npassed by the Special Judge on the ground that the sanction was\r\nbad, save and except in cases where the appellate or revisional\r\ncourt finds that the failure of justice had occurred by such invalidity.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>12. This Court in case of Nanjappa Vs. State of Karnataka1 has very\r\naptly dealt with the intricacies of Section 19(1) as also Section 19(3)\r\nand 19(4) of the said Act as to at what stage the question of validity\r\nof sanction accorded under Section 19(1) of the said Act could be\r\nraised, and what are the powers of the court in appeal, confirmation\r\nor revision under sub-section (3) of Section 19 of the said Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“22. The legal position regarding the importance of sanction\r\nunder Section 19 of the Prevention of Corruption Act is thus\r\nmuch too clear to admit equivocation. The statute forbids </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">taking of cognizance by the court against a public servant\r\nexcept with the previous sanction of an authority competent\r\nto grant such sanction in terms of clauses (a), (b) and (c) to\r\nSection 19(1). The question regarding validity of such\r\nsanction can be raised at any stage of the proceedings. The\r\ncompetence of the court trying the accused so much\r\ndepends upon the existence of a valid sanction. In case the\r\nsanction is found to be invalid the court can discharge the\r\naccused relegating the parties to a stage where the\r\ncompetent authority may grant a fresh sanction for the\r\nprosecution in accordance with law. If the trial court\r\nproceeds, despite the invalidity attached to the sanction\r\norder, the same shall be deemed to be non est in the eyes of\r\nlaw and shall not forbid a second trial for the same offences,\r\nupon grant of a valid sanction for such prosecution.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>\r\n23. Having said that there are two aspects which we must\r\nimmediately advert to. The first relates to the effect of subsection (3) to Section 19, which starts with a non obstante\r\nclause. Also relevant to the same aspect would be Section\r\n465 CrPC which we have extracted earlier.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>23.1. It was argued on behalf of the State with considerable\r\ntenacity worthy of a better cause, that in terms of Section\r\n19(3), any error, omission or irregularity in the order\r\nsanctioning prosecution of an accused was of no\r\nconsequence so long as there was no failure of justice\r\nresulting from such error, omission or irregularity. It was\r\ncontended that in terms of Explanation to Section 4, “error\r\nincludes competence of the authority to grant sanction”. The\r\nargument is on the face of it attractive but does not, in our\r\nopinion, stand closer scrutiny.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>23.2. A careful reading of sub-section (3) to Section 19\r\nwould show that the same interdicts reversal or alteration of\r\nany finding, sentence or order passed by a Special Judge,\r\non the ground that the sanction order suffers from an error,\r\nomission or irregularity, unless of course the court before\r\nwhom such finding, sentence or order is challenged in\r\nappeal or revision is of the opinion that a failure of justice\r\nhas occurred by reason of such error, omission or\r\nirregularity. Sub-section (3), in other words, simply forbids\r\ninterference with an order passed by the Special Judge in\r\nappeal, confirmation or revisional proceedings on the ground\r\nthat the sanction is bad save and except, in cases where the\r\nappellate or revisional court finds that failure of justice has\r\noccurred by such invalidity. What is noteworthy is that subsection (3) has no application to proceedings before the\r\nSpecial Judge, who is free to pass an order discharging the\r\naccused, if he is of the opinion that a valid order sanctioning\r\nprosecution of the accused had not been produced as\r\nrequired under Section 19(1).</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">23.3. Sub-section (3), in our opinion, postulates a prohibition\r\nagainst a higher court reversing an order passed by the\r\nSpecial Judge on the ground of any defect, omission or </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">irregularity in the order of sanction. It does not forbid a\r\nSpecial Judge from passing an order at whatever stage of\r\nthe proceedings holding that the prosecution is not\r\nmaintainable for want of a valid order sanctioning the same.\r\n23.4. The language employed in sub-section (3) is, in our\r\nopinion, clear and unambiguous. This is, in our opinion,\r\nsufficiently evident even from the language employed in subsection (4) according to which the appellate or the revisional\r\ncourt shall, while examining whether the error, omission or\r\nirregularity in the sanction had occasioned in any failure of\r\njustice, have regard to the fact whether the objection could\r\nand should have been raised at an early stage. Suffice it to\r\nsay, that a conjoint reading of sub-sections 19(3) and (4)\r\nleaves no manner of doubt that the said provisions envisage\r\na challenge to the validity of the order of sanction or the\r\nvalidity of the proceedings including finding, sentence or\r\norder passed by the Special Judge in appeal or revision\r\nbefore a higher court and not before the Special Judge trying\r\nthe accused.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">23.5. The rationale underlying the provision obviously is that\r\nif the trial has proceeded to conclusion and resulted in a\r\nfinding or sentence, the same should not be lightly interfered\r\nwith by the appellate or the revisional court simply because\r\nthere was some omission, error or irregularity in the order\r\nsanctioning the prosecution under Section 19(1). Failure of\r\njustice is, what the appellate or revisional court would in\r\nsuch cases look for. And while examining whether any such\r\nfailure had indeed taken place, the Court concerned would\r\nalso keep in mind whether the objection touching the error,\r\nomission or irregularity in the sanction could or should have\r\nbeen raised at an earlier stage of the proceedings meaning\r\nthereby whether the same could and should have been\r\nraised at the trial stage instead of being urged in appeal or\r\nrevision.”</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. In State of M.P. vs. Bhooraji and Others , this Court had an\r\noccasion to deal with the various aspects contained in Section 465\r\nof CrPC more particularly to deal with the expression “A failure of\r\njustice has in fact been occasioned” as contained therein. Since, the\r\nprovisions contained in Section 19(3) of the Prevention of Corruption Act and in Section 465(1) of CrPC are pari materia, the observations\r\nmade in the said decision would be relevant. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><i>“14. We have to examine Section 465(1) of the Code in the\r\nabove context. It is extracted below:\r\n“465. (1) Subject to the provisions hereinbefore\r\ncontained, no finding, sentence or order passed by a\r\ncourt of competent jurisdiction shall be reversed or\r\naltered by a court of appeal, confirmation or revision\r\non account of any error, omission or irregularity in the\r\ncomplaint, summons, warrant, proclamation, order,\r\njudgment or other proceedings before or during trial or\r\nin any enquiry or other proceedings under this Code,\r\nor any error, or irregularity in any sanction for the\r\nprosecution, unless in the opinion of that court, a\r\nfailure of justice has in fact been occasioned thereby.”</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>15. A reading of the section makes it clear that the error,\r\nomission or irregularity in the proceedings held before or\r\nduring the trial or in any enquiry were reckoned by the\r\nlegislature as possible occurrences in criminal courts. Yet\r\nthe legislature disfavoured axing down the proceedings or to\r\ndirect repetition of the whole proceedings afresh. Hence, the\r\nlegislature imposed a prohibition that unless such error,\r\nomission or irregularity has occasioned “a failure of justice”\r\nthe superior court shall not quash the proceedings merely on\r\nthe ground of such error, omission or irregularity.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>16. What is meant by “a failure of justice” occasioned on\r\naccount of such error, omission or irregularity? This Court\r\nhas observed in Shamnsaheb M. Multtani v. State of\r\nKarnataka [(2001) 2 SCC 577: 2001 SCC (Cri) 358] thus:\r\n(SCC p. 585, para 23)</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“23. We often hear about ‘failure of justice’ and quite\r\noften the submission in a criminal court is accentuated\r\nwith the said expression. Perhaps it is too pliable or\r\nfacile an expression which could be fitted in any\r\nsituation of a case. The expression ‘failure of justice’\r\nwould appear, sometimes, as an etymological\r\nchameleon (the simile is borrowed from Lord Diplock\r\nin Town Investments Ltd. v. Deptt. of the\r\nEnvironment [(1977) 1 All ER 813 : 1978 AC 359 :\r\n(1977) 2 WLR 450 (HL)] ). The criminal court,\r\nparticularly the superior court should make a close\r\nexamination to ascertain whether there was really a\r\nfailure of justice or whether it is only a camouflage.”<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. In the instant case, the Special Judge proceeded with the trial, on\r\nthe second application for discharge filed by the respondent having <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not been pressed for by him. The Special Judge, while dismissing\r\nthe third application filed by the respondent seeking discharge after\r\nexamination of 17 witnesses by the prosecution, specifically held\r\nthat the sanction accorded by the government which was a superior\r\nauthority to the Karnataka Water Supply Board, of which the\r\nrespondent was an employee, was proper and valid. Such findings\r\nrecorded by the Special Judge could not have been and should not\r\nhave been reversed or altered by the High Court in the petition filed\r\nby the respondent challenging the said order of the Special Judge,\r\nin view of the specific bar contained in sub-section (3) of Section 19,\r\nand that too without recording any opinion as to how a failure of\r\njustice had in fact been occasioned to the respondent-accused as\r\ncontemplated in the said sub-section (3). As a matter of fact, neither\r\nthe respondent had pleaded nor the High Court opined whether any\r\nfailure of justice had occasioned to the respondent, on account of\r\nerror if any, occurred in granting the sanction by the authority.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. As a matter of fact, such an interlocutory application seeking\r\ndischarge in the midst of trial would also not be maintainable. Once\r\nthe cognizance was taken by the Special Judge and the charge was\r\nframed against the accused, the trial could neither have been stayed <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">nor scuttled in the midst of it in view of Section 19(3) of the said Act.\r\nIn the instant case, though the issue of validity of sanction was\r\nraised at the earlier point of time, the same was not pressed for. The\r\nonly stage open to the respondent-accused in that situation was to\r\nraise the said issue at the final arguments in the trial in accordance\r\nwith law.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>16. In that view of the matter, the impugned order passed by the High\r\nCourt is set aside. It will be open for the respondent to raise the\r\nissue of validity of sanction if he desires to do so, in accordance with\r\nlaw at the final stage of arguments in the trial. Special Judge is\r\ndirected to proceed with the trial from the stage it had stopped, in\r\naccordance with the law and as expeditiously as possible.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n17. Appeal stands allowed accordingly.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '327b7c8a265786628b8770f69bc63c49.jpeg', 'ea75b5d82124ef66f20c8204c20e554b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-05', 1, '', '', '2023-08-04 12:25:39', '2023-08-05 06:38:25'),
(3296, '3dxcJreWwdLjMkbQTnMKaeEob', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Order under Section 143A of the N. I Act is not interlocutory but intermediate. Revision before the Sessions Court under Section 397 of the Cr.P.C. is maintainable. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sanjay P.S. Vs Abhishek M.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 5944 of 2023 decided on 28 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court calling in question order\r\ndated 17-06-2023 passed by the LXIV Additional City Civil and\r\nSessions Judge, Bengaluru in Criminal Revision Petition No.527 of\r\n2022 directing the petitioner to pay 10% of cheque amount to the\r\nrespondent within 60 days from the date of the order.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Facts, in brief, germane are as follows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The petitioner is the accused and the respondent is the\r\ncomplainant. The two have a transaction. The transaction is of\r\n` 37,50,000/- in total. The transaction leads to issuing of certain <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cheques by the petitioner in favour of the complainant. The\r\ncheques when presented, were dishonoured, on the score that\r\ninstruction to the bankers was ‘stop payment’. The dishonouring of\r\ncheques leads to the complainant taking steps under the Negotiable\r\nInstruments Act, 1881 (‘the Act’ for short) by causing legal notice\r\nupon the petitioner. The reply to the notice was submitted by the\r\npetitioner. It is then the complainant invokes the jurisdiction of the\r\ncriminal Court by filing a private complaint before the 4th Additional\r\nChief Metropolitan Magistrate at Bengaluru in P.C.R.No.7249 of\r\n2020 under Section 200 of the Cr.P.C. for offences punishable\r\nunder Section 138 of the Act. The learned Magistrate takes\r\ncognizance upon the complaint and registers a criminal case in\r\nC.C.No.23021 of 2021 for offences punishable under Section 138 of\r\nthe Act.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4. The issue in the lis does not concern merit of the claim of\r\nthe parties before the concerned Court. During the pendency of\r\nproceedings, the complainant files an application under Section\r\n143A of the Act seeking interim compensation of 20% of cheque\r\namount. The petitioner objects to the said application by filing </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">statement of objections and contending that there is no reason\r\nindicated as to why the amount of 20% should be allowed in favour\r\nof the complainant. Upon hearing the parties, the learned\r\nMagistrate rejected the application filed by the complainant for\r\ngrant of interim compensation as aforesaid. Upon rejection of the\r\napplication, the complainant approaches the learned Sessions Judge\r\nby filing a criminal revision petition under Section 397 of the CrPC\r\nin Criminal Revision Petition No.527 of 2022. The learned Sessions\r\nJudge, by the order impugned, allows the revision petition and\r\ndirects payment of 10% of the cheque amount to the complainant.\r\nThe petitioner/accused is before this court calling in question the\r\nsaid order of the learned Sessions Judge by which 10% of the\r\ncheque amount is directed to be paid as interim compensation\r\nunder Section 143A of the Act.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The afore-narrated facts, dates and the link in the chain of\r\nevents are not in dispute, they would thus require no reiteration.\r\nThe only issue that falls for consideration is, <i>whether the revision\r\npetition before the Court of Sessions was maintainable\r\nagainst an order passed on an application filed under Section\r\n143A of the Act?</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">8. To consider the issue that has arisen in the case it is\r\ngermane to notice Section 143A of the Act. Section 143A of the Act\r\ncomes into effect from 01-09-2018 pursuant to an amending Act,\r\nAct 20 of 2018 dated 16-08-2018. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 143A depicts the power of the Magistrate to grant interim\r\ncompensation. The conditions for such grant are depicted under\r\nsub-sections (1) and (2) of Section 143A of the Act. Sub-section\r\n(3) thereof mandates that interim compensation so granted must\r\nbe paid within 60 days and if the amount is not paid, it may be\r\nrecovered as if it were a fine under Section 421 of the Cr.P.C. The\r\namount of fine imposed under Section 138 or compensation\r\nawarded under Section 357 of the Cr.P.C. shall be reduced by the\r\namount paid or recovered as interim compensation under Section\r\n143A. The unmistakable purport of the provision is that in terms of\r\nthe provision there is genesis of an application and in terms of the\r\nvery provision there is termination of the application. Therefore,\r\nonce the application is filed and ordered it terminates those\r\nproceedings i.e., proceedings under Section 143A qua an\r\napplication so filed under the said provision.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> 9..... <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 397 empowers the Court of Sessions or even this Court to\r\nexamine the record of any proceeding before any inferior Criminal\r\nCourt against closure of any proceeding. Sub-section (2) of Section\r\n397 mandates that the power of revision conferred under sub- </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">section (1) shall not be exercised in relation to any interlocutory\r\norder passed in any appeal, inquiry, trial or other proceeding.\r\nTherefore, the issue would be whether the revision would be\r\nmaintainable before the Court of Sessions against an order passed\r\non an application filed under Section 143A of the Act. As observed\r\nhereinabove, Section 143A of the Act is a complete code by itself\r\nqua an application to be filed for interim compensation. The genesis\r\nand closure of the application happens under Section 143A of the\r\nAct itself. Therefore, it terminates the application. Therefore, it is\r\nnot an interlocutory order, but an intermediate order.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. After the amendment to the Act, and coming into force of\r\nSection 143A of the Act, there are several judgments rendered by\r\ndifferent High Courts. The High Court of Bombay in the case of\r\nHITENDRA v. SHANKAR2\r\n on this very issue of grant of interim\r\ncompensation under Section 143A of the Act and Section 397 of the\r\nCr.P.C. has held as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>9. Now coming to the submissions that, the\r\nsaid revision which was entertained by the learned\r\nAdditional Sessions Judge was interlocutory in\r\nnature i. e. the revision was barred under\r\nSection 397(2) of Code of Criminal Procedure is\r\nconcerned,</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“(2)... </span>There may be an order passed during the\r\ncourse of the proceeding which may not be\r\nfinal but yet it may not be an interlocutory\r\norder pure and simple. By a rule of harmonious\r\nconstruction of sub-sections (1) and (2) of\r\nSection 397 it must be held that the bar in subsection (2) is not meant to be attracted to such\r\nkinds of intermediate orders. It is neither\r\nadvisable nor possible to make a catalogue of\r\norders to demonstrate which kinds of orders\r\nwould be interlocutory and which would be\r\nfinal and then prepare an exhaustive list of\r\nthose types of orders which would fall between\r\nthe two.” </i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>11. In order that an order would be\r\n“interlocutory order”, it will have to be seen as to\r\nwhether the rights of a person are affected.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>12. Here in this case, the learned Magistrate\r\napplied that provision of law which was not at all\r\napplicable to the case in hand before him, therefore,\r\ndefinitely it had affected the right of the accused.\r\nConsequently it cannot be said that, the order which\r\nwas passed by the learned Magistrate was purely\r\n“interlocutory order” as contemplated under\r\nSection 397(2) of Code of Criminal Procedure. The\r\nlearned Additional Sessions Judge was justified in\r\nsetting aside the said order by exercising his power\r\nunder Section 397(1) of Code of Criminal Procedure.\r\nThere is no merit in the present writ petition much\r\nless to invoke the constitutional powers of this Court\r\nunder Article 226 and 227, hence the writ petition is\r\nhereby dismissed. Rule is discharged.” </i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">After the aforesaid judgments, the High Court of Chhattisgarh holds\r\na similar view in LAXMIKANT RATHORE v. RAKESH JADWANI4\r\nas follows:</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\"7. Reverting to the facts of the instant case in\r\nlight of the aforesaid judgments (supra), it is quite\r\nvivid that the trial Magistrate rejected respondent\r\nNo. 1/complainant\'s application for grant of interim\r\ncompensation under Section 143A of the Act of 1881\r\non the ground that the petitioner/accused is not\r\nresponsible for delay in completion of the trial,\r\nhowever, the revisional Court has noticed that the\r\ntrial Magistrate has the power and jurisdiction to\r\ngrant interim compensation under Section 143A of\r\nthe Act of 1881 as the cheque in question was\r\ndishonored on 24/12/2018 and the complaint was\r\nfiled on 24/05/2019, therefore Section 143A of the\r\nAct of 1881 is applicable, and remitted the matter to\r\nthe trial Magistrate to consider respondent No.\r\n1/complainant\'s application for grant of interim\r\ncompensation under Section 143-A of the Act of\r\n1881, which is strictly in accordance with law and\r\nthe petitioner/accused is at liberty to make all such\r\nsubmissions before the trial Magistrate while\r\nconsideration of the said application under Section\r\n143-A of the Act of 1881. Similarly, the argument\r\nmade by learned counsel for the petitioner/accused\r\nthat revision preferred by respondent No.\r\n1/complainant was not maintainable in view of\r\nSection 397 of CrPC is also rejected as it is an\r\nimportant and valuable right of respondent No. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1/complainant to get interim compensation in terms\r\nof Section 143-A of the Act of 1881.\"</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>All these judgments considered the purport of an application under\r\nSection 143A of the Act and its closure and would hold that revision\r\nbefore the Court of Sessions under Section 397 of the Cr.P.C. would\r\nbe maintainable as an order on the application filed under Section\r\n143A of the Act is not an interlocutory order but an intermediate\r\norder. Therefore, I answer the issue that has arisen for\r\nconsideration holding that an order passed on an application filed\r\nunder Section 143A of the Act, is not interlocutory order, but an\r\nintermediate order, as the application is filed, and the application is\r\nclosed, under the said provision, determining the rights and\r\nliabilities of parties qua the application and revision petition before\r\nthe Court of Sessions on the order passed by the learned Magistrate\r\nunder Section 143A either allowing the application, or rejecting it,\r\nwould be maintainable for the aggrieved party, be it the\r\ncomplainant or the accused to approach.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. In the light of the solitary contention advanced by the\r\nlearned counsel for the petitioner and it being answered against the\r\npetitioner, the petition lacking in merit stands rejected. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'b4b9255cc02126b99944772e0e7ceacd.jpeg', 'ea804f67b7657528e562570a0c9017f5.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-05', 1, '', '', '2023-08-04 12:43:18', '2023-08-05 03:13:24');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3312, 'U8gDvQNhM5qyiRGF2Ky2mOvX4', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Presumption of innocence is a human right. Mere recovery of the tainted money, dehorse the circumstances under which it was found, is not sufficient for conviction under the PC Act when the substantive evidence is not proved. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>B.V. Ramesh Vs State of Karnataka.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 779 of 2011 decided on 28 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Rajesh Rai K.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This appeal filed by the convicted accused is directed\r\nagainst the judgment of conviction and order of sentence\r\npassed in special case No.126/2009 dated 23.07.2011 by the\r\nDistrict and Special Judge at Chamarajanagara wherein, the\r\nappellant/accused was convicted for the alleged offence\r\npunishable under Sections 7 and 13(1)d r/w section 13(2) of\r\nthe Prevention of Corruption Act, 1988 (for short \'the Act\')\r\nand directed to undergo imprisonment for a period of 4 years\r\nand also to pay a fine of Rs.25,000/- in default, he shall suffer\r\nfurther simple imprisonment for a period of 5 months.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>16. Having heard both the counsels and on perusal of\r\nthe records, the points that would arise for my consideration\r\nare:-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. Whether the judgment under appeal suffers\r\nfrom any perversity or illegality?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n2. Whether the Special judge justified in\r\nconvicting the accused/appellant for the offence 7,\r\n13(1)(d) r/w Section 13(2) of the Prevention of\r\nCorruption Act, 1988? <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. Learned counsel for the respondent, vehemently,\r\ncontended that the Hon\'ble Apex Court laid the law in the case\r\nof Neeraj Dutta vs. State (Government of NCT of Delhi)\r\nreported in (2023) 4 SCC 731 that even if the complainant\r\nturned hostile by disowning his complaint, then also based on\r\nthe available evidence, the accused can be convicted under\r\nthe provisions of the Act.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. On careful perusal of the dictum laid down by the\r\nHon\'ble Apex Court in the case of Neeraj Dutta vs. State\r\n(Government of NCT of Delhi) reported in (2023) 4 SCC\r\n731 held that for recording conviction under Sections 7,\r\n13(1)(d)(i) and (ii) of the Act, the prosecution has to first\r\nprove the demand and acceptance of illegal gratification either\r\n(1) by direct evidence which can be in the nature of oral\r\nevidence or documentary evidence, or, (2) by circumstantial\r\nevidence in the absence of direct and oral documentary\r\nevidence. The Hon\'ble Apex Court, in paragraph 88, held as\r\nunder:- <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\"88. What emerges from the aforesaid discussion\r\nis summarised as under:\r\n88.1. (a) Proof of demand and acceptance of\r\nillegal gratification by a public servant as a fact in\r\nissue by the Section is a sine quo non in order to\r\nestablish the guilt of the accused public servant\r\nunder Sections 7 and 13(1)(d)(i) and (ii) of the Act.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>88.2. (b) In order to bring home the guilt of the\r\naccused, the prosecution has to first prove the\r\ndemand of illegal gratification and the subsequent\r\nacceptance as a matter of fact. This fact in issue can\r\nbe proved either by direct evidence which can be in\r\nthe nature of oral evidence or documentary evidence.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\r\n88.3. (c) Further, the fact in issue, namely, the\r\nproof of demand and acceptance of illegal\r\ngratification can also be proved by circumstantial\r\nevidence in the absence of direct oral and\r\ndocumentary evidence.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>88.4. (d) In order to prove the fact in issue,\r\nnamely, the demand and acceptance of illegal\r\ngratification by the public servant, the following\r\naspects have to be borne in mind:</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\r\n(i) if there is an offer to pay by the\r\nbribe-giver without there being any demand\r\nfrom the public servant and the latter simply <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">accepts the offer and receives the illegal\r\ngratification, it is a case of acceptance as per\r\nSection 7 of the Act. In such a case, there\r\nneed not be a prior demand by the public\r\nservant.</span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(ii) On the other hand, if the public\r\nservant makes a demand and the bribe-giver\r\naccepts the demand and tenders the demanded\r\ngratification which in turn is received by the\r\npublic servant, it is a case of obtainment. In\r\nthe case of obtainment, the prior demand for\r\nillegal gratification emanates from the public\r\nservant. This is an offence under Sections\r\n13(1)(d)(i) and (ii) of the Act.</i></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n(iii) In both case f (i) and (ii) above, the\r\noffer by the bribe-giver and the demand by the\r\npublic servant respectively have to be proved\r\nby the prosecution as a fact in issue. In other\r\nwords, mere acceptance or receipt of an illegal\r\ngratification without anything more would not\r\nmake it an offence under Section 7or Sections\r\n13(1)(d)(i) and (ii), respectively of the Act.\r\nTherefore, under Section 7 of the Act, in order\r\nto bring home the offence, there must be an\r\noffer which emanates from the bribe-giver\r\nwhich is accepted by the public servant which\r\nwould make it an offence. Similarly, a prior </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">demand by the public servant when accepted\r\nby the bribe-giver and in turn there is a\r\npayment made which is received by the public\r\nservant, would be an offence of obtainment of\r\nunder Sections 13(1)(d)(i) and (ii) of the Act.</span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>88.5. (e) The presumption of fact with regard to\r\nthe demand and acceptance or obtainment of an\r\nillegal gratification may be made by a court of law by\r\nway of an inference only when the foundational facts\r\nhave been proved by relevant oral and documentary\r\nevidence and not in the absence thereof. On the\r\nbasis of the material on record, the court has the\r\ndiscretion to raise a presumption of fact while\r\nconsidering whether the fact of demand has been\r\nproved by the prosecution or not. Of course, a\r\npresumption of fact is subject to rebuttal by the\r\naccused and in the absence of rebuttal presumption\r\nstands.</i></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">88.6. (f) In the event the complainant turns\r\n\"hostile\", or has died or is unavailable to let in his\r\nevidence during trial, demand of illegal gratification\r\ncan be proved by letting in the evidence of any other\r\nwitness who can against let in evidence, either orally\r\nor by documentary evidence or the prosecution can\r\nprove the case by circumstantial evidence. The trial\r\ndoes not abate nor does it result in an order of\r\nacquittal of the accused public servant.</span><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>88.7. (g) Insofar as Section 7 of the Act is\r\nconcerned, on the proof of the facts in issue, Section\r\n20 mandates the court to raise a presumption that\r\nthe illegal gratification was for the purpose of a\r\nmotive or reward as mentioned in the said Section.\r\nThe said presumption has to be raised by the court as\r\na legal presumption or a presumption in law. Of\r\ncourse, the said presumption is also subject to\r\nrebuttal. Section 20 does not apply to Sections\r\n13(1)(d)(i) and (ii) of the Act.\r\n88.8. (h) We clarify that the presumption in law\r\nunder Section 20 of the Act is distinct from\r\npresumption of fact referred to above in sub-para</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>88.5(e), above, as the former is a mandatory\r\npresumption while the latter is discretionary in\r\nnature. \"\r\n</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">Hence, the Hon\'ble Apex Court laid the dictum that the\r\nproof of demand and acceptance of illegal gratification by a\r\npublic servant as a fact in issue by the prosecution is a sine\r\nqua non in order to establish the guilt of the accused public\r\nservant under Section 7 and 13(1)(d)(i) and (ii) of the Act\r\nand also that though the complainant turned hostile or died or\r\nis unavailable to let in his evidence during, the prosecution\r\ncan prove the guilt of the accused by the circumstantial </span><span style=\"font-size: 12pt;\">evidence. However, the Hon\'ble Apex Court clarified the\r\nposition of law that in order to bring home the guilt of the\r\naccused, the prosecution has to first prove the demand and\r\nacceptance of illegal gratification and the subsequent\r\nacceptance as a matter of fact.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">25. The Hon\'ble Apex Court in Neeraj Dutta\'s case\r\n(supra) after the law laid down by the Constitution Bench and\r\nthe said matter was disposed by the Hon\'ble Apex Court which </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">was reported in 2023 SCC Online SC 280 wherein the\r\nHon\'ble Apex Court held in paragraph 15 by referring the case\r\nof N.Vijayakumar vs. State of Tamil Nadu reported in\r\n(2021) 3 SCC 687 held that \"absence of proof of demand for\r\nillegal gratification and mere possession or recovery of\r\ncurrency notes is not sufficient to constitute such offence and\r\nthe presumption under Section 20 of the Act can be drawn\r\nonly after the demand for and acceptance of illegal\r\ngratification is proved. Further, the Hon\'ble Apex Court in\r\nparagraph 18 held as under:-\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\"18. The allegation of demand of gratification\r\nand acceptance made by a public servant has to be\r\nestablished beyond a reasonable doubt. The\r\ndecision of the Constitution Bench does not dilute\r\nthis elementary requirement of proof beyond a\r\nreasonable doubt. The Constitution Bench was\r\ndealing with the issue of the modes by which the\r\ndemand can be proved. The Constitution Bench has\r\nlaid down that the proof need not be only by direct\r\noral or documentary evidence, but it can be by way\r\nof other evidence including circumstantial evidence.\r\nWhen reliance is placed on circumstantial evidence\r\nto prove the demand for gratification, the\r\nprosecution must establish each and every\r\ncircumstance from which the prosecution wants the</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court to draw a conclusion of guilt. The facts so\r\nestablished must be consistent with only one\r\nhypothesis that there was a demand made for\r\ngratification by the accused. Therefore, in this case,\r\nwe will have to examine whether there is any direct\r\nevidence of demand. If we come to a conclusion\r\nthat there is no direct evidence of demand, this\r\nCourt will have to consider whether there is any\r\ncircumstantial evidence to prove the demand.\"</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n26. It is settled position of law laid down by the\r\nHon\'ble Apex Court in the above said judgment that the\r\nprosecution must establish each and every circumstances\r\nfrom which the prosecution wants the Court to draw a\r\nconclusion of the guilt. Moreover, the Hon\'ble Apex Court in\r\nthe case of P.Sathyanarayana Murthy vs. District\r\nInspector of Police, State of Andhra Pradesh and\r\nanother reported in (2015) 10 SCC 152 held that, the proof\r\nof demand cannot be proved by the evidence of other\r\nwitnesses, in such eventuality though such recovery proved,\r\nthe benefit of doubt should be extended to the accused. Mere\r\nacceptance of any amount allegedly by way of demand, ipso\r\nfacto, would not be sufficient to bring home the charges under\r\nSections 7 and 13 of the Act. In the said judgment, the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Hon’ble Apex Court by referring the judgment of Sujit\r\nBiswas vs. State of Assam reported in (2013) 12 SCC 406\r\nheld that suspicion, however grave, cannot take the place of\r\nproof and the prosecution cannot afford to rest its case in the\r\nrealm of “may be\" but has to upgrade it in the domain of\r\n“must be\" true in order to steer clear of any possible surmise\r\nor conjecture. It was held, that the Court must ensure that\r\nmiscarriage of justice is avoided and if in the facts and\r\ncircumstances, two views are plausible, then the benefit of\r\ndoubt must be given to the accused.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. The Hon’ble Apex Court in the above relied\r\njudgment further held that mere acceptance of any amount\r\nallegedly by way of illegal gratification or recovery thereof,\r\ndehors the proof of demand, ipso facto, would not be\r\nsufficient to bring home the charges under Sections 7 and 13 <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and 13(1)(d)(i) of the Act. As a corollary, the failure of\r\nprosecution to prove the demand of illegal gratification would\r\nbe fatal and mere recovery of the amount from the person of\r\nthe accused of the offence under Sections 7 or 13 of the Act\r\nwould not entail his conviction there under. In the instant\r\ncase, the amount of Rs.4,500/- recovered is not from the\r\nperson of the accused, but from the table drawer of the\r\naccused. When PW.1-the complainant himself categorically\r\ndenied the aspect of demand and acceptance of the bribe and\r\nthe audio clipping was also not clear, in such circumstances,\r\ninference cannot be drawn against the accused.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34. Though the learned counsel for the respondent\r\nrelied the judgment rendered by the Hon’ble Apex Court in\r\nthe case of Hazari Lal Vs. State (Delhi Administration)\r\nreported in (1980) 2 SCC 390 wherein it held that the\r\nacceptance of illegal gratification - passing of money to the\r\npossession of accused can be proved by direct as well as <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">circumstantial evidence - circumstances leading to the only\r\ninference of acceptance of money by the accused,\r\npresumption under Section 114 of Indian Evidence Act and\r\nSection 4(1) of the Act can be raised against accused,\r\nhowever, the said dictum laid down by the Hon’ble Apex Court\r\nhas been diluted by the subsequent judgments rendered by\r\nthe Hon’ble Apex Court in the case of Jayaraj vs. State of\r\nAndhra Pradhesh, P.Sathyanarayan Murthy vs. District\r\nInspector of Police, State of Andhra Pradesh, V.Sejappa vs.\r\nState by Police Inspector Lokayukta, Chitradurga and\r\nN.Vijaykumar vs. State of Tamilnadu as discussed Supra.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">35. The Hon’ble Apex Court in catena of judgments\r\nheld in respect of burden of proof and doctrine of innocence.\r\nEvery accused is presumed to be innocent unless the guilt is\r\nproved. The presumption of innocence is a human right.\r\nHowever, subject to the statutory exceptions, the said\r\nprinciple form the basis of criminal jurisprudence. For this\r\npurpose, the nature of the offence, its seriousness and gravity\r\nthereof has to be taken into consideration. The Courts must\r\nbe on guard to see that merely on the application of the\r\npresumption, the same may not lead any injustice or </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">mistaken conviction. My view is fortified by the judgment\r\nrendered by the Hon’ble Apex Court in the case of Babu vs.\r\nState of Kerala reported in (2010) 9 SCC 189.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">36. The Hon’ble Apex Court in the case of Narendra\r\nSingh and another vs. State of Madhya Pradesh reported\r\nin (2004) 10 SCC 699 held that the suspicion, however\r\ngrave may be, held, cannot take the place of proof. There is\r\na long distance between “may be” and “must be”. Hence, by\r\nconsidering the above principles laid down by the Hon’ble\r\nApex Court, in the case on hand, the prosecution failed to\r\nprove the charges leveled against the accused beyond\r\nreasonable doubt for the reason that, PW.2-the complainant\r\nhimself disowned the contents of the complaint lodged by him\r\nso also he failed to depose against the accused in respect of\r\ndemand and acceptance of the bribe amount.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">38. The Hon’ble Apex Court in the catena of\r\njudgments laid the law that the hearsay evidence cannot be\r\nrelied solely without their being any corroboration. Though the\r\nInvestigation Officer i.e., PW.5 deposed in respect of the\r\ndemand and acceptance of the bribe amount by the accused,\r\nbut in his evidence, he categorically admitted that the audio\r\nclippings in respect of the demand of bribe amount is not\r\nclear or audible. Moreover, in his cross examination, he\r\ncategorically admitted that the accused was not in possession\r\nof the documents pertaining to PW.2-the complainant and\r\nother beneficiaries. He also admitted that there is a\r\ncommittee headed by the accused to select the beneficiaries.\r\nFurther, all the documents pertaining to the beneficiaries\r\nincluding the accused were with one Subbanna, who was\r\nYelandur Taluk Development Officer and Smt.Rukmini, District\r\nManager of Dr.Ambedkar Development Corporation. Later, he\r\nseized those documents on 29.11.2007 at the instance of one\r\nRukmini as the same was maintaining by her. He also\r\nadmitted that the committee consist of 7 members including </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the President has to take a decision to which beneficiaries of\r\nthe loan have to be sanctioned and accordingly, list will be\r\nprepared. In such circumstances, the presumption under\r\nSection 20 cannot be drawn in this case since the prosecution\r\nfailed to prove the foundational facts. Per contra, the accused\r\noffered the explanation on the touchstone of preponderance\r\nof probability. Hence, in my considered view, as per the\r\nsettled principles laid down by the Hon’ble Apex Court in the\r\nabove discussed judgments, the prosecution failed to prove\r\nthe guilt of accused in this case beyond reasonable doubt.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>39. It is the golden thread runs through the web of\r\ncriminal justice system that if two views are possible, the\r\nfavorable view has to be considered in favour of the accused.\r\nHence, in my considered opinion, the prosecution failed to\r\nprove the guilt of accused beyond reasonable doubt.\r\nAccordingly the conviction held against accused by the trial\r\nCourt is liable 8 to be set-aside.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> i. The appeal preferred by the\r\nappellant/accused under Section 374 of\r\nCr.P.C. is hereby allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '90e859827180f7b2ad29f113698832a3.jpeg', '60ffdbd912aaa2a794c6bc28fe4152a6.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-10', 1, '', '', '2023-08-09 13:00:00', '2023-08-10 10:16:31'),
(3305, 'J0JWR4fzJkhGFdFmt0ncXAdpB', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Grant of sanction u/s 197 Cr.P.C. is an administrative function and the presumption under Section 114(e) of the Indian Evidence Act that official acts have been performed regularly can be applied. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Muthaiah Vs State.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 16605 of 2018 decided on 4 August 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S. Sunil Dutt Yadav.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is the accused in relation to the various\r\nFirst Information Reports (FIR) registered separately\r\nrelating to the offence of illegally exporting mined Iron Ore\r\nmaterial from Belekere Port without valid permit which is\r\nalleged to have been facilitated by the accused-petitioner,\r\nwho was the then Deputy Conservator of Forests of Bellary\r\nDistrict.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. It is relevant to note that the registration of the\r\nFIRs was pursuant to the direction of the Apex Court in\r\nSamaj Parivartana Samudaya and Others v. State of\r\nKarnataka and Others1\r\n[Samaj Parivartana\r\nSamudaya], whereby the Central Bureau of Investigation\r\n(CBI) was directed to investigate the alleged illegal mining\r\nof Iron Ore in Bellary Reserve Forest area by M/s.\r\nAssociated Mining Companies.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Insofar as offences under IPC are concerned,\r\nSection 197 of Cr.P.C. mandates obtaining of sanction and\r\nrelevant extract is as hereunder:-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i> \"197. Prosecution of Judges and public\r\nservants.—(1) When any person who is or was a\r\nJudge or Magistrate or a public servant not\r\nremovable from his office save by or with the\r\nsanction of the Government is accused of any <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">offence alleged to have been committed by him while\r\nacting or purporting to act in the discharge of his\r\nofficial duty, no Court shall take cognizance of such\r\noffence except with the previous sanction save as\r\notherwise provided in the Lokpal and Lokayuktas Act,\r\n2013—</span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(a) xxx\r\n(b) in the case of a person who is employed\r\nor, as the case may be, was at the time of\r\ncommission of the alleged offence employed,\r\nin connection with the affairs of a State, of\r\nthe State Government:…\"</span><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">17. Section 197 (1)(b) of Cr.P.C. which is applicable\r\nin the present factual matrix provides for sanction of the\r\nState Government. The term \'State Government\' is not\r\ndefined in the Cr.P.C. and we need to fall back on the\r\nprovision under the Karnataka General Clauses Act of 1899,\r\nwhich defines \'State Government\' as follows:-</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>\r\n\"3(38c) \"State Government\",-\r\n xxx</i></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> (c) as respect anything done or to be done\r\n after 1st November, 1973 shall mean the\r\n Governor of the State of Karnataka;</span><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. Under Section 19 of P.C. Act, no Court can take\r\ncognizance \"except with previous sanction\" of the\r\nappropriate Government. Relevant extract of Section 19\r\nreads as follows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\"19. Previous sanction necessary for\r\nprosecution.—(1) No court shall take cognizance of an\r\noffence punishable under sections 7, 11, 13 and 15\r\nalleged to have been committed by a public servant,\r\nexcept with the previous sanction save as otherwise\r\nprovided in the Lokpal and Lokayuktas Act, 2013—</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\r\n (a) in the case of a person who is employed, or\r\nas the case may be, was at the time of commission of\r\nthe alleged offence employed in connection with the\r\naffairs of the Union and is not removable from his\r\noffice save by or with the sanction of the Central\r\nGovernment, of that Government;</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i> (b) in the case of a person who is employed, or\r\nas the case may be, was at the time of commission of\r\nthe alleged offence employed in connection with the\r\naffairs of a State and is not removable from his office\r\nsave by or with the sanction of the State Government,\r\nof that Government;</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i> (c) xxx</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i> (2) Where for any reason whatsoever any doubt\r\narises as to whether the previous sanction as required\r\nunder sub-section (1) should be given by the Central\r\nGovernment or the State Government or any other\r\nauthority, such sanction shall be given by that\r\nGovernment or authority which would have been\r\ncompetent to remove the public servant from his\r\noffice at the time when the offence was alleged to\r\nhave been committed.\" </i><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>25. It is to be noticed that Rule 6 of the Indian\r\nForest Service (Recruitment) Rules, 1966 deals with the\r\nappointment into the Indian Forest Service and relevant\r\nextract of Rule 6 is as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\r\n\"6. Appointment to the Service.- 6(1) All\r\nappointment to the Service shall be made by\r\nthe Central Government and no such appointment\r\nshall be made except after\r\nrecruitment by one of the methods specified in\r\nrule 4.\"</i><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. Insofar as the aspect of sanction for offences\r\nunder the Karnataka Forest Act, Section 114A provides that\r\nprosecution shall not be entertained \"except with the\r\nprevious sanction of the State Government.\" Relevant\r\nextract of Section 114A is as follows:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>\"114A. Suits or prosecution in respect of acts\r\ndone under colour of duty not to be entertained\r\nwithout sanction of the State Government.- (1)\r\nIn any case of alleged offence or of wrong alleged to\r\nhave been committed by any Forest Officer, by any\r\nact done under colour or in excess of any such duty\r\nor authority under this Act, or wherein it shall appear\r\nto the court that offence if committed was of the\r\ncharacter aforesaid the prosecution or suit shall not\r\nbe entertained except with the previous sanction of\r\nthe State Government.\" </i><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">138. The petitioner has sought for quashing the\r\nproceedings in Spl. CC. Nos.135/2013, 105/2014, 6/2014\r\nand 21/2014 pending on the file of Special Judge for CBI\r\nCases and now pending before the Addl. City Civil and\r\nSessions Judge, Bangalore, registered for the offences\r\npunishable under Sections 120-B read with Section 409,\r\n420, 434, 447, 468, 471 of IPC and under Section 13(2)\r\nread with Section 13(1)(c) and (d) of P.C. Act.\r\n</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 139. It must be noticed that the present petition has\r\nbeen filed under Section 482 of Cr.P.C. and during the\r\npendency of the proceedings before the Special Court, the\r\ndischarge applications had been filed. The Special Court has\r\nrejected the applications filed seeking discharge by its order\r\ndated 17.04.2017 and the correctness of such order has not\r\nbeen directly assailed in the present proceedings though the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner resorts for quashing of proceedings while invoking\r\nthe jurisdiction under Section 482 of Cr.P.C.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">148. Insofar as the contention that the alleged\r\noffence is in fact not an offence as the alleged mining is in\r\nnon-forest area, it is submitted that Section 17 of the\r\nKarnataka Forest Act provides for defining the limits of a\r\nforest which is intended to constitute a reserve forest and to\r\ndeclare the same to be a reserved forest from the date fixed\r\nby such notification. It is submitted that once a notification\r\nis passed under Section 17(2) of Karnataka Forest Act, such\r\nforest shall be deemed to be a reserved forest.\r\nAccordingly, it is submitted that it is not the case of the\r\npetitioner that the area in question where illegal mining has\r\noccurred is a reserved forest, but it is the case of the\r\nrespondent-CBI that illegal mining has taken place in a </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">rest area. It is submitted that even if the leasehold rights\r\ngranted have expired, on expiry of such leasehold period,\r\nthe land held by the private mining companies would fall\r\nback within the jurisdiction of the Forest Department.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 149. It is further contended that the registration of\r\nFIRs was pursuant to the direction of the Apex Court in\r\nSamaj Parivartana Samudaya (supra), which directions\r\nwere issued pursuant to the acceptance of the report of the\r\nCEC and the observations made in the order of CEC was to\r\nthe effect that FIRs are to be registered and investigation\r\ncarried out relating to illegal extraction of Iron Ore from the\r\nforest areas of Karnataka.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>152. It must be seen that the question as to whether\r\nIron Ore which was subject matter of transportation and\r\nalleged part of illegal export was forest produce, that the\r\nland from which such Iron Ore was extracted was forest\r\nland, is a finding that can be recorded only on the basis of\r\nevidence and records, which aspect of appreciation is a\r\nmatter best to be left to the trial Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>153. The question whether the area from which illegal\r\nmining has been resorted to after expiry of lease would still\r\nretain the character of forest land, whether mining was\r\nfrom a part of the forest land, whether the Iron Ore itself\r\nwould come within the purview of \'forest produce\', are\r\nmatters that need not be adjudicated at this stage so as to\r\nclose a prosecution which is being tested in trial.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n 154. It is also to be noticed that the finding as\r\nregards forest land or non-forest land while interpreting the\r\nnotification ought not to be embarked upon wherein the\r\nsame question would arise as regards co-accused who are\r\nnot parties in the present proceedings and accordingly,\r\nCourt must refrain from recording a finding that may\r\njeopardize prosecution against other accused persons\r\nagainst whom the trial is in progress. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>156. Though it is contended that there is an overlap\r\nof FIRs, however, learned Special Public Prosecutor\r\nappearing for CBI has rightly pointed out that though the\r\nmodus operandi is the same, however, there are separate\r\nand distinct overt acts in course of separate transactions\r\nwhich constitute different offences and accordingly, it\r\ncannot be contended that there are no multiple sets of\r\noffences that have been committed. Any finding after a\r\ndetailed analysis regarding overlapping of offences, is a\r\nmatter that could be arrived at only during trial and beyond\r\nthe limited scope of limited jurisdiction under Section 482 of\r\nCr.P.C. to appreciate evidence and interfere with the\r\nfindings made in the order of discharge. Similarly, as to\r\nwhether offence made out in R.C.No.18(A)/2011 has an\r\noverlap with R.C.Nos.13(A)/2012, 14(A)/2012, 15(A)/2012\r\nand 16(A)/2012 are also factual findings to be arrived at\r\nafter appreciation of evidence which ought not to be made\r\nin exercise of present jurisdiction invoked.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>157. It must be noted that the present FIRs having\r\nbeen registered pursuant to the order of the Apex Court in\r\nSamaj Parivartana Samudaya (supra) cannot be\r\ninterfered with lightly without permitting the trial to\r\nconclude. The legal effect of lands notified under Section 4\r\nof the Karnataka Forest Act and as to whether it would\r\nqualify to be forest land, whether the mining was in fact\r\ncarried out in forest land carrying out mining in lands where\r\nleasehold rights have expired and whether such land if\r\nearlier was forest land are again factually dense contentions\r\nwhich are mixed questions of fact and law which can be\r\ngone into only by the trial Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Insofar as the relief sought as regards forest offences\r\nis concerned, it must be noticed that charges framed do not\r\npertain to forest offences and accordingly, the question of\r\nadjudication sought for by the petitioner does not arise for\r\nconsideration.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>158. Insofar as the contention of the petitioner that\r\nR.C.No.18(A)/2011 which is the complaint that is\r\ncomprehensive may be permitted to proceeded with while\r\nthe other complaints could be stayed as noticed above,\r\nprima facie, the subject matter of each of the FIRs\r\nconstitute a separate offence. The alternative contention\r\nthat there could be consolidation of FIRs in light of Section\r\n219 and 223 of Cr.P.C., it must be observed that such\r\napplication ought to have been filed before the trial Court,\r\nas it is the trial Court to decide as regards such request and\r\nmore importantly, such request must be made prior to\r\ncommencement of the trial. The trial being at an advanced\r\nstage, it is not open for such consideration at the present\r\nstage.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">159. It must be noticed that as against the order\r\ndismissing application for discharge, revision under Section\r\n397(2) of Cr.P.C. would be maintainable. The petitioner not\r\nhaving challenged the said orders in revision proceedings\r\nand having invoked the present jurisdiction, which is </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">narrower than the jurisdiction in appeal/revision, the scope\r\nof interference being limited in light of the discussion made\r\nabove, the Court has refused to interfere and intervene in\r\nthe proceedings before the trial Court, which ought to be\r\nallowed to be proceeded.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>161. It is also to be noticed that the discretionary\r\njurisdiction under Section 482 of Cr.P.C. is to be exercised\r\nto prevent abuse of process or to secure ends of justice only\r\nin exceptional cases. Where interference in exercise of such\r\njurisdiction requires appreciation of evidence, finding on\r\nfacts, it would be best left for such matters to be decided <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">during trial. In the present case, it must also be kept in\r\nmind that any finding regarding mining operations in a\r\nforest area or in non-forest area would have implication as\r\nregards other criminal cases also pending and accordingly,\r\nit may not be appropriate to jeopardize the cases against\r\nother accused by recording a finding as against the\r\npetitioner alone.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>162. Accordingly, this Court does not find any scope\r\nfor interference and the Writ Petitions are dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8229467afb57bb1bb92211b6c811d52b.JPG', 'c7044383ef1354deb75ab6aefb4a6711.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-08', 1, '', '', '2023-08-07 11:44:59', '2023-08-08 03:17:38');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3303, 'm0m8Fh7PT2xy9SNxYuqbjFUcr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Agreement of sale in violation of Section 61 of the Karnataka Land Reforms Act, 1961 is void and cannot be enforced. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Laxman Lakkappa Durgannavar Thr LRS and others Vs Donkappa Fakirappa Durgannavar Thr LRS and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 2221 of 2005 decided in 12 March 2020.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Jyoti Mulimani.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>3.<span style=\"white-space: pre;\">	</span>It is the case of plaintiff that the original propostius Laxmappa had three sons namely Fakirappa, Lakkappa and Balappa. Balappa had gone in adoption to one Balawwa in the same village. The original propositus Laxmappa died long back leaving behind his two sons Lakkappa and Fakirappa as his legal heirs.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">During the life time of original propositus, they formed a Hindu joint family and that the joint family possessed certain immovable properties. After the death of the original propositus, the father of plaintiff and father of defendant continued the joint family for some time. The father of the plaintiff died in the year 1978 leaving behind plaintiff as his legal heir and the father of the defendant died in the year 1994 leaving behind defendant and five daughters as his legal heirs.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>It is averred in the plaint that originally family of plaintiff and defendant possessed immovable properties bearing Block No.5/11 area measuring 03 acres 16 guntas., Block No.5/12 area measuring 03 acres 04 guntas., and land Block No 302/2 area measuring 04 acres 20 guntas., all situated within the revenue limits of Upparatti village, Gokak Taluk.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><font face=\"Calibri, sans-serif\">It is the case of plaintiff that all these lands were tenanted lands of the original propositus. The lands were in joint possession and enjoyment of the father of plaintiff and father of defendant. Hence, they are ancestral and joint family properties of plaintiff and defendant. It is stated that there was a partial partition in landed properties between the father of plaintiff and father of defendant. In that partition, the suit property was fallen to the share of father of plaintiff and block No.5/11 had fallen to the share of father of defendant. The land bearing Block No.302/2 remained in joint possession and enjoyment of both the father of plaintiff and father of defendant.</font><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>Plaintiff further pleaded that, in the month of September 1995, defendant started interfering and obstructing the peaceful possession and enjoyment of the suit property and also obstructed plaintiff’s agricultural operations. It is also averred that defendant challenged the right, title and interest over the suit schedule property contending that he is the owner of the property to an extent of 1/4th share in the suit property.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>On enquiry, plaintiff came to know that name of father of defendant was mutated under M.E. No.3511 on 13.04.1988 as he has got 1/4th share in the suit property. After the death of defendant’s father, the name of the present defendant was mutated in the revenue records with respect to suit schedule property vide M.E. No.3744 on 02.07.1994.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>The contention of plaintiff was that the mutation entry No.3511 was effected behind his back and at the time of mutation entry, he was a minor. The plaintiff’s mother has not given joint wardi for effecting the mutation entry. It is also contended that the mutation entry No.3511 was effected in favour of father of defendant in collusion with the revenue authorities.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>Hence, plaintiff contended that defendant’s father has no right, title or interest to claim 1/4th share in the suit schedule property on the strength of the mutation entry. When the father of defendant did not get any right, title and interest over the suit property, defendant also does not get any right, title and interest under M.E.No.3744. Further, it is also stated that defendant is in no way concerned with the suit property and he is illegally obstructing the peaceful possession and enjoyment of the suit property by plaintiff.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>9.<span style=\"white-space: pre;\">	</span>The appeal is admitted on 28.5.2008 to consider the following substantial questions of law:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>1.<span style=\"white-space: pre;\">	</span>Whether the Courts below are justified in concluding that the defendant is entitled to protect his possession of the suit property by virtue of Section 53-A of Transfer of Property Act notwithstanding the appellant being declared as the owner of the suit property?</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><i>2.<span style=\"white-space: pre;\">	</span>Whether the sale agreement-Ex.D.2 could have been banked upon by the Court below having regard to the provisions of the Karnataka Land Reforms Act, which prohibits alienation for a period of 15 years?”</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>13.<span style=\"white-space: pre;\">	</span>Plaintiff had filed suit seeking declaration that he is the absolute owner of the suit property and had sought for permanent and for recovery of possession to an extent of 1/4th share in the suit schedule property. It is an admitted fact that Block No.5/12 measuring 03 acres 04 guntas situated at Upparahatti Village was tenanted land and the occupancy right was granted to the father of plaintiff on 15.4.1978 by the Land Tribunal, Gokak. It is also admitted by defendant that plaintiff is the absolute owner of land bearing Block No.5/12.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>Defendant had urged that his father was put in possession of the suit property by virtue of agreement for sale. Though plaintiff had denied the execution of the agreement for sale, but the trial Court has held that the plaintiff has executed the agreement for sale in favour of the father of defendant and has put him in possession of the property pursuance to the said agreement. The trial Court has held that plaintiff is not in possession of the suit property as on the date of filing of the suit.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>The trial Court, while answering Issue Nos.2 and 7 has come to the conclusion that defendant has proved his possession over the suit property on the basis of agreement for sale (Exhibit D-2) by examining the scribe and attesting witnesses as per the provisions of the Indian Evidence Act, 1872. The trial Court has also held that as plaintiff is not in possession of the suit property, he is not entitled for any injunction. The trial Court thus rejected the prayer for possession.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>The First Appellate Court confirmed the judgment and decree passed by the trial Court. As could be seen from the judgment and decree, the First Appellate Court, has relied upon Section 53-A of the Transfer of Property Act, 1882 and has come to the conclusion that defendant’s father had taken possession of the land in question, in part performance of the contract and that defendant is entitled to the benefit of Section 53-A of the Transfer of Property Act, 1882. Accordingly, the Court rejected the relief of possession as sought by plaintiff. Hence, plaintiff has filed this appeal.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>16.<span style=\"white-space: pre;\">	</span>This Court has framed two substantial questions of law. Hence, the questions for decision in this appeal are ‘whether the enforcement of agreement for sale would result in transgression of the provisions of the Karnataka Land Reforms Act, 1961? and ‘whether defendant is entitled to the protection of part performance under Section 53-A of Transfer Property Act?’<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space: pre;\">	</span>Before, I answer the second substantial question of law, it would be necessary to refer to Section 61 of the Karnataka Land Reforms Act, 1961 which reads as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\">“61. Restriction of transfer of land of which tenant has become occupant -</font></span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">(1) Notwithstanding anything contained in any law, no land of which the occupancy has been granted to any person under this chapter shall within fifteen years from the date of the final order, passed by the Tribunal under sub-section (4)</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">or sub-section (5) or sub-section (5-A) of section 48-A be transferred by sale, gift, exchange, mortgage, lease or assignment; but the land may be partitioned among members of the holder’s joint family.</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">(2)</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem; white-space: pre;\">	</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Notwithstanding anything contained in sub-section (1) , it</span><span style=\"font-size: 1rem;\"> </span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">shall be lawful for the occupant registered as such or his successor- in-title to take a loan and mortgage or create a charge on his interest in the land in favour of the State Government (a financial institution, a co-operative land development bank, a co– operative society) or a company as defined in Section 3 of the Companies Act, 1956 in which not less than fifty one per cent of the paid up share capital is held by the State Government or a Corporation owned or controlled by the Central Government or the State Government or by both for development of land or improvement of agricultural practices; and without prejudice to any other remedy provided by any law, in the event of his making default in payment of such loan in accordance with the terms and conditions on which such loan was granted, it shall be lawful to cause his interest in the land to be attached and sold and the proceeds to be utilized in the payment of such loan.</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><i><b><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">(3)</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem; white-space: pre;\">	</span><span style=\"font-family: Calibri, sans-serif; font-size: 1rem;\">Any transfer or partition of land in contravention of sub-section (1) shall be invalid and such land shall vest in the State Government free from all encumbrances and shall be disposed in accordance with the provisions of Section 77.”</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>The Karnataka Land Reforms Act, 1961 creates an embargo on transfer of land within 15 years from the date of the order of Land Tribunal.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>21.<span style=\"white-space: pre;\">	</span>The law on the subject has been recently stated by Justice B.R. Gavai in NARAYANAMMA AND ANOTHER VS. GOVINDAPPA AND OTHERS referred to supra. The Apex Court at paragraph 23 has held that the transaction i.e., agreement for sale is nothing short of a transfer of property. Under Section 61 of the Karnataka Land Reforms Act, 1961, there is a complete prohibition of transfer of land for a period of 15 years from the date of grant. I respectfully agree with the statement of law laid down by the Hon’ble Supreme Court.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>22.<span style=\"white-space: pre;\">	</span>The decision of the Apex Court and the law laid down is applicable to the facts and circumstances of the present case.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>Even according to defendant, the order of the land tribunal is made in the year 1978. As such, the transfer in question in the year 1988 is beyond any doubt within the prohibited period of 15 years.  This Court is of the view that the agreement for sale (Ex.D-2) is in violation of the provisions of the Karnataka Land Reforms Act, 1961 and hence, the same would result in transgression of Section 61 of the Karnataka Land Reforms Act, 1961.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space: pre;\">	</span>I, come therefore, to the conclusion that the agreement for sale is hit by Section 61 of the Karnataka Land Reforms Act, 1961. Accordingly, the second substantial question of law is answered.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>24.<span style=\"white-space: pre;\">	</span>The next question which requires to be answered is, whether the courts below are justified in holding that defendant is entitled to protect his possession by virtue of section 53 -A of Transfer of Property Act despite plaintiff being declared as the owner of the suit property?<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>25.<span style=\"white-space: pre;\">	</span>In order to examine the scope and extent of rights under section 53-A of the Transfer of Property Act, 1882, it will be more advantageous to reproduce the same, which reads as under.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>“53-A. Part performance – Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><i>Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.”</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>The Section has been described by the Privy Council in PIR BUX, khan Bahadur Mian V. MOHOMED TAHAR, Sardar reported in AIR 1934 PC 235 and the Hon’ble Supreme Court in MANEKLAL MANSUKHBHAI VS HONNUUSJI JAMSHEDJI reported in AIR 1950 SC 1, as a partial importation of the English equitable doctrine of part performance.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>By virtue of Section 53-A of Transfer of property Act, part performance does not give rise to an equity, as in England, but to a statutory right. This right is more restricted than the English equity in two respects, (1) there must be a written contract, and (2) it is only available as a defence.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>So far as India is concerned, the section creates rights which were not in existence before the enactment was passed. These rights to retain possession rest on the express provisions of the statute. Section 53-A of the Transfer of Property Act insists upon proof of some acts having been done in furtherance of the contract. The acts claimed to be in part performance must be unequivocally referable to the pre-existing contract, and point in the direction of the existence of contract.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>26.<span style=\"white-space: pre;\">	</span>In this background, this Court has to ascertain whether defendant is entitled to the benefit of part performance and maintain his possession on the basis of an illegal agreement.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>As already observed above, section 53-A was introduced into the Transfer of Property Act by (Amendment) Act, 1929.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>The conditions to attract section 53-A are that there should be an agreement for sale in writing, transfer of possession (physical) of property to prospective purchaser, readiness and willingness of purchaser to complete his obligations to purchase and that such purchaser who is put into possession doing some act (independent of the contract) in furtherance of the contract.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>Section 53-A furnishes a statutory defense to a person who has no registered deed of title in his favour to maintain his possession if he can prove an agreement in writing and some act on his part in furtherance of contract but independent thereof.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>The section specifically allows the doctrine of part performance to be applied to agreements which are valid and where possession is supported by a valid agreement. The doctrine of part performance cannot be availed of in respect of a transaction which is null and void.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>28.<span style=\"white-space: pre;\">	</span>But, I have no doubt in my mind that the doctrine of part performance could have no place in the present case as defendant is seeking protection of his possession on the basis of an agreement for sale which is hit by Section 61 of the Karnataka Land Reforms Act, 1961.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>All said and done, a prospective purchaser cannot utilize the agreement for sale (with possession) as protection of possession under section 53-A of Transfer of Property Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>A transfer in contravention of Section 61 of the Karnataka Land Reforms Act, 1961 being void, Section 53- A of the said Act cannot be invoked in such a case.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>Hence, defendant cannot avail the benefit of doctrine of part performance to maintain his possession.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>It follows, therefore, that when the transaction is expressly prohibited under the Karnataka Land Reforms Act, 1961, the doctrine of part performance cannot be permitted to be invoked under these circumstances.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>29.<span style=\"white-space: pre;\">	</span>It seems to me that both the Courts below do not in this passage sufficiently bear in mind that question is not mere the application of Section 53-A of the Transfer of Property Act, 1882, but also the question relating to the application of the provisions of the Karnataka Land Reforms Act, 1961.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><b>Therefore, the Courts below are not justified in protecting the possession of defendant on the basis an illegal agreement. The Court below have totally ignored this aspect. Indeed, the Appellate Judge has made a short shrift of Section 53-A of Transfer of Property Act, 1882.<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>30.<span style=\"white-space: pre;\">	</span>In my view, this is a fit case for interference. It is settled law that where the concurrent findings of fact are vitiated by non-consideration of the relevant provisions of law or by essentially wrong approach, the High Court is not precluded from recording proper findings under Section 100 of the Code of Civil Procedure (Jagdish Singh Vs. Nathu Singh AIR 1992 SC 1604).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>31.<span style=\"white-space: pre;\">	</span>Plaintiff has established his title to the suit property. The transaction i.e., agreement for sale is hit by section 61 of the Karnataka Land Reforms Act. Therefore, the agreement is outside the scope of the doctrine of part performance.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>So, it follows that defendant is not entitled for the benefit of statutory right of part performance to maintain his possession over the suit schedule property. Accordingly, the first substantial question of law is answered.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>32.<span style=\"white-space: pre;\">	</span>In the present case, defendant has claimed the benefit of part performance to protect his possession by virtue of agreement for sale dated 29.3.1988. The possession was delivered in pursuance of an illegal agreement. There is no other foundation except agreement for sale.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>As already observe above, the transaction is clearly hit by Section 61 of the Karnataka Land Reforms Act 1961 and defendant is not entitled for protection of his possession on the basis of an illegal agreement.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>Therefore, if the decree is confirmed in favour of defendant on the basis of an illegal agreement which is hit by a statute, it will be rendering an active assistance of the court in enforcing an agreement which is contrary to law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>33.<span style=\"white-space: pre;\">	</span>The general principle, founded on public policy, is that any transaction that is tainted by illegality in which both parties are equally involved is beyond the pale of the law. No person can claim any right or remedy whatsoever under an illegal transaction in which he has participated. Ex turpi causa non oritur action. The Court is bound to veto the enforcement of a contract once it knows that it is illegal, whether the knowledge comes from the statement of the guilty party or from outside sources.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>In SITA RAM V. RADHA BAI reported in AIR 1968 SC 534 [by three Judges Bench], wherein the Hon\'ble Apex Court has dealt with  maxim \"in pari delicto potior est conditio defendentis” and explained the same with reference to the Contract Act and Civil Procedure Code.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>fraud. Recently, the Hon’ble Apex Court in 2019 AIAR (Civil) 1031 referred to supra, has elaborately considered the application of the maxim ex dolo malo non oritur actio and public policy.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>In delivering the judgment, Justice. B.R.Gavai, has referred to earlier cases bearing on the subject and has held that Court will refuse to enforce an illegal agreement. I am bound to take the law as it has been laid down by the Hon’ble Apex Court. The same is applicable to the facts and circumstances of the present case.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>34.<span style=\"white-space: pre;\">	</span>Both the Courts below have protected the possession of defendant applying the doctrine of part performance. As held by Supreme Court in Narayanamma’s case, if the possession of defendant is protected on the basis of an illegal agreement which is hit by a statute, it will be rendering an active assistance of the Court in enforcing an agreement which is contrary to law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>As against this, if the balance is tilted towards plaintiff, no doubt that he would stand benefited in spite of committing an illegality. However, what the Court would be doing is only rendering assistance which is purely of a passive character.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>35.<span style=\"white-space: pre;\">	</span>In the result, the suit for recovery of possession is hereby decreed. Defendants are hereby directed to put plaintiff in possession of 1/4th share in the suit schedule property.<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><b>i)<span style=\"white-space: pre;\">	</span>The appeal is accordingly allowed.</b></span></p>', 'cbc9a56811c5d50bd0bcb8569a49d73b.JPG', 'f47b8d35cf7419dd491f02ff29679b4e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-08', 1, '', '', '2023-08-07 11:04:10', '2023-08-08 07:55:55');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3300, 'AqhhfFyNZjCvyuG2GvhuDUIRr', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When company was not made party to the criminal proceedings and there is material to proceed against the company, summoning of the company under Section 319 of the CrPC. cannot be questioned. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>C.P. Yogeshwara Vs Serious Fraud Investigation Office and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 8421 of 2022 decided on 28 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioner is before this Court calling in question order dated 08-07-2022 by which the XLII Additional Chief Metropolitan Magistrate at Bengaluru in C.C.No.30796 of 2021 allows an interlocutory application filed by the 1st respondent under Section 319 of the CrPC ordering impleadment of 2nd respondent/Megacity (Bangalore) Developers and Builders Limited as accused No.2 in the aforesaid proceedings. The numbers of the proceedings would vary in every case. But, the issue and the parties remain the same.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. The facts, in brief, germane are as follows:-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The 2nd respondent who is now sought to be impleaded as accused No.2 is a Company incorporated on 11-08-1994 under the provisions of the Companies Act, 1956. The petitioner is said to be the erstwhile Managing Director of the 2nd respondent. The 2nd respondent was in the business of developing and constructing properties of lands into dwelling houses, letting or selling them. In the year 1994-95, the 2nd respondent had launched a real estate project in the name and style of ‘Vajragiri Township Project’, a housing scheme for allotment of residential plots to the public. The project attracted about 3100 applications at the time of its launch itself. The Directors were sought to be holding 48 acres of land and had also acquired 490 acres of land in and around Bidadi area for development of residential sites between 1995 and 2001. It&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">appears that due to steep increase in land prices, several land owners who had agreed to sell their lands to the Directors sought to terminate the agreements. In several cases the family members of erstwhile land owners filed suits claiming rights of inheritance and about 130 acres were notified for acquisition by the Karnataka Industrial Area Development Board for the Bangalore-Mysore Infrastructure corridor project. It is further averred that due to aforesaid set back in the project, the 2nd respondent developed and registered 1360 residential plots to the applicants and refunded money along with interest to 1030 applicants under various Court orders.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">5. The 1st respondent/Serious Fraud Investigation Office investigated into the affairs of the 2nd respondent, its promoters/ Directors under Section 35(1) of the Companies Act, 1956 and filed its investigation report on 30-07-2011 before the Ministry of Corporate Affairs. In the said report it was alleged inter alia that promoters/Directors of the 2nd respondent have misappropriated subscription money paid by the applicants and certain lands purchased by the 2nd respondent were from the funds generated&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">from the project and were subsequently sold to Prestige Bidadi Holdings Private Limited. On 09-09-2011, the 2nd respondent filed its objections to the investigation report before the 1st respondent. In furtherance of both the report and objections thereto, the Central Government approaches the National Company Law Tribunal, Bangalore (‘the Tribunal’ for short) seeking to replace erstwhile Directors of the 2nd respondent and in their place put in 5 new Directors. The Tribunal, in terms of its order dated 14-03-2019 in Company Petition No.2 of 2014, directed the then existing Board of Directors of the 2nd respondent to be replaced with the Directors nominated by the Central Government.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. In furtherance whereof, the only issue that falls for consideration is,</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>“Whether the 2nd respondent could have been impleaded into the web of criminal cases as accused No.2 on an application filed by the 1st respondent under Section 319 of the Cr.P.C.? “&nbsp;</i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>10. To consider the said issue, it is germane to notice Section 319 of the Cr.P.C.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 319 of the Cr.P.C. empowers the Court to try any other accused and proceed against them who appears to be guilty of the offence. It can be at any stage during the trial. The interpretation&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and purpose of Section 319 of the Cr.P.C. need not detain this Court for long and delve deep into the matter, as the Apex court has considered, interpreted and laid down guidelines as to when and how additional accused could be dragged into the web of criminal case on an application filed under Section 319 of the Cr.P.C. A Constitution Bench of the Apex Court rendered its judgment on 05-12-2022 in the case of SUKHPAL SINGH KHAIRA v. STATE OF PUNJAB . After consideration of the entire spectrum of law, the conclusions drawn are as follows:</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>41.(III) What are the guidelines that the competent court must follow while exercising power under Section 319CrPC?</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>41.1. If the competent court finds evidence or if application under Section 319CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>41.2. The court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>41.3. If the decision of the court is to exercise the power under Section 319CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case.&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>41.4. If the summoning order of additional accused is passed, depending on the stage at which it is passed, the court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>41.5. If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>41.6. If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the court to continue and conclude the trial against the accused who were being proceeded with.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>41.7. If the proceeding paused as in para 41.1 above, is in a case where the accused who were tried are to be acquitted, and the decision is that the summoned accused can be tried afresh separately, there will be no impediment to pass the judgment of acquittal in the main case.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>41.8. If the power is not invoked or exercised in the main trial till its conclusion and if there is a split-up (bifurcated) case, the power under Section 319CrPC can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the split-up (bifurcated) trial.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>41.9. If, after arguments are heard and the case is reserved for judgment the occasion arises for the Court to invoke and exercise the power under Section 319CrPC, the appropriate course for the court is to set it down for rehearing.&nbsp;<br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>41.10. On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding of joint trial or otherwise shall be decided and proceeded with accordingly.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>41.11. Even in such a case, at that stage, if the decision is to summon additional accused and hold a joint trial the trial shall be conducted afresh and de novo proceedings be held.</i>&nbsp;<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>&nbsp;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">Five Judge Bench of the Apex Court lays down guidelines for the competent Court to follow while exercising power under Section 319 of the Cr.P.C., The Apex court holds that if the Court would feel on evidence that the application filed under Section 319 with regard to involvement of any person on the basis of evidence recorded at any stage in the trial before passing the order of acquittal or sentence, it shall pause the trial at that stage, call upon, by issuance of&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">summons, to the additional accused and follow the procedure on the appearance of the accused. What would emerge from the guidelines laid down is that, if during the trial at any stage, if one is to be brought in as accused in terms of the evidence, the Court shall pause the trial, issue summons and then continue the trial after arraigning of the said accused. Therefore, it is the power that is available, which has to be exercised cautiously and not in a routine manner.&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">The said judgment is followed by the Apex Court in the case of VIKAS RATHI v. STATE OF U.P.&nbsp; wherein it is held as follows:</span><span style=\"font-size: 12pt;\">&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>10. The Constitution Bench in Hardeep Singh\'s case (supra), opined as under:—</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>“105. Power u/s 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the magistrate or the sessions judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence laid before the court that such power should be exercised and not in a casual and cavalier manner.<span style=\"font-size: 12pt;\"><br></span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>106. Thus we hold that though only a prima facie case is to be established from the evidence laid before the court, not necessarily tested on the anvil of cross-examination, it requires much strong evidence that near probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power u/S 319 CrPC”</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>15. One of the arguments raised by learned counsel appearing for the parties was that in the case in hand, the High Court instead of appreciating the material placed on record by the parties in the form of evidence to find out as to whether a case was made out for summoning of the appellant as an additional accused, remitted the matter back to the trial court for consideration afresh. Remand in such a matter will only result in prolonging the litigation. The High Court only recorded that reasons assigned by the trial court for rejecting the application were not sufficient. To avoid delay, it would have been proper exercise of power in case the High Court would have considered the material and opine as to whether a case was made out for summoning of additional accused. Whatever reasons have been recorded by the trial court in the order so passed, may not have been happily worded to the satisfaction of the High Court, but that error could have been corrected in exercise of revisional power.”</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>It was further explained that statement made in examination-in-chief also constitutes “evidence” and the court while exercising power under Section 319CrPC post commencement of trial, need not wait for evidence against person proposed to be summoned, to be tested by cross-examination.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>15. In Sukhpal Singh Khaira [Sukhpal Singh Khaira v. State of Punjab, (2023) 1 SCC 289 : (2023) 1 SCC (Cri) 454] , the Constitution Bench refreshed the guidelines that the competent court must follow while&nbsp;&nbsp;<span style=\"font-size: 12pt;\">exercising power under Section 319CrPC. It was ruled that:</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>15.1. If the competent court finds evidence or if application under Section 319CrPC is filed, regarding involvement of any other person in committing the offence based on evidence “recorded at any stage in the trial” before passing of the order on acquittal or sentence, it shall pause the trial at that stage and the court shall proceed to decide the fate of the application under Section 319CrPC.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>15.2. If the court decides to summon an accused under Section 319CrPC, such summoning order shall be passed before proceeding further with the trial in the main case and depending upon the stage at which the order is passed, the trial court shall apply its mind to the fact as to whether such summoned accused is to be tried along with other accused or separately.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>15.3. If the power under Section 319CrPC is not invoked or exercised in the main trial till its conclusion and if there is a split-up case, such power can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the split-up (bifurcated trial).</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>16. It is, thus, manifested from a conjoint reading of the cited decisions that power of summoning under Section 319CrPC is not to be exercised routinely and the existence of more than a prima facie case is sine qua non to summon an additional accused. We may hasten to add that with a view to prevent the frequent misuse of power to summon additional accused under Section 319CrPC, and in conformity with the binding judicial dictums referred to above, the procedural safeguard can be that ordinarily the summoning of a person at the very threshold of the trial may be discouraged and the trial court must evaluate the evidence against the persons sought to be summoned and then adjudge whether such material, more or less, carry the same&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">weightage and value as has been testified against those who are already facing trial. In the absence of any credible evidence, the power under Section 319CrPC ought not to be invoked.</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>Conclusion 20. In light of the above discussion, we are of the considered view that while summoning of Appellant 1 sustains, but that of Appellants 2 and 3 will be farfetched and they cannot be subjected to trial on the basis of mere strong suspicion. The High Court order under challenge is accordingly set aside qua Appellants 2 and 3.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">21. Having held that Appellant 1 has been rightly summoned and is liable to be tried along with his son and wife, the next question that requires consideration is as to the manner in which the trial will proceed hitherto</span><br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>This is again reiterated in the case of JITENDRA NATH MISHRA v. STATE OF U.P , wherein it is held as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>“9. Section 319, Cr.P.C., which envisages a discretionary power, empowers the court holding a trial to proceed against any person not shown or mentioned as an accused if it appears from the evidence that such person has committed a crime for which he ought to be tried together with the accused who is facing trial. Such power can be exercised by the court qua a person who is not named in the FIR, or named in the FIR but not shown as an accused in the charge-sheet. Therefore, what is essential for exercise of the power under section 319, Cr. P.C. is that the evidence on record must show the involvement of a person in the commission of a crime and that the said person, who has not been arraigned as an accused, should face trial together with&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the accused already arraigned. However, the court holding a trial, if it intends to exercise power conferred by section 319, Cr. P.C., must not act mechanically merely on the ground that some evidence has come on record implicating the person sought to be summoned; its satisfaction preceding the order thereunder must be more than prima facie as formed at the stage of a charge being framed and short of satisfaction to an extent that the evidence, if unrebutted, would lead to conviction.”</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>On the bedrock of the principles laid down by the Apex Court in the aforesaid cases, the issue at hand requires consideration. The complaint is filed under Section 200 of the Cr.P.C. for offences punishable under Sections 403 and 409 of the IPC. The complaint is registered by the 1st respondent against the petitioner arraigning him as the Managing Director of Megacity (Bangalore) Developers and Builders Limited.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The concerned Court records that the complaint narrates several instances of allegations against the Company which would become ingredients of Sections 403 and 409 of the IPC and the Company is necessary to be tried along with the Directors/Promoters of the Company. Without the Company, accused No.1 i.e., Managing Director/Promoter/Directors of the Company cannot be prosecuted and for completion of trial in a manner known to law, the application is allowed. Who is impleaded is a nominee Director of the 2nd respondent by name Sri C.V. Sanjeevan who would represent the 2nd respondent. The erstwhile Director of the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Company/accused No.1 in the aforesaid crime raises a challenge to the said order.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11. In the teeth of the law laid down by the Apex Court in the aforesaid cases, the Company ought to have been made an accused before the concerned Court, as there is enough material against the Company for having allegedly misappropriated the amounts which came into the project, though the project was separate which was under the aegis of the 2nd respondent. The allegation of misappropriation is also against Promoters and Directors of the 2nd respondent, may be erstwhile. But, without the Company, the proceedings could not have gone on further. Therefore, the concerned Court has rightly allowed the application, bearing in mind the necessity of the Company to be an accused in the proceedings and it is in tune with the law laid down by the Apex Court in the form of guidelines as noticed (supra).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12. The issue with regard to maintainability of the petition is not gone into, as the petition is considered on the merit of the matter itself and is held that there is no error much less an error&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">apparent on the face of the record, for this Court to interfere with the order of the learned Magistrate allowing the application under Section 319 of the CrPC. In the light of the reasons rendered (supra), the other petitions which challenge an identical order passed in different criminal cases where the 2nd respondent is permitted to be arrayed as accused No.2 have also to be rejected.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Finding no merit in all the criminal petitions, the petitions stand dismissed.</b>&nbsp;</p>', 'dff6c0afe704df9ec03d8c819a21ed49.jpeg', 'ca522044ed2d7cfe5cf2217a32ec429a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-07', 1, '', '', '2023-08-07 08:54:00', '2023-08-07 08:54:00');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3311, 'ikNRSw4mnPW1fPpjCjxoMFHAy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Though employee of a nationalised bank is “public servant’ under the PC Act, the analogy cannot be extended to the IPC and hence protection under Section 197 of the CrPC is not available. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Sreenivasa Reddy Vs Rakesh Sharma and another.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Appeal 2339 of 2023 decided on 8 August 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice B.R. Gavai and Justice J.B. Pardiwala.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. This appeal arises from the judgment and order passed by a learned\r\nSingle Judge of the High Court for the State of Telangana dated\r\n20.06.2022 in the Criminal Petition No. 6782 of 2019 filed by the\r\nappellant herein by which the High Court rejected the petition and\r\nthereby declined to quash the criminal proceedings instituted against the\r\nappellant for the offence punishable under Sections 120-B r/w 420, 468\r\nand 471 respectively of the Indian Penal Code, 1860 (for short, ‘the\r\nIPC’).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. The appellant herein (Original Accused No. 2) at the relevant point of\r\ntime was serving as an Assistant General Manager, State Bank of India,\r\nOverseas Bank (Bank), Hyderabad. He is alleged to have conspired with\r\nother co-accused to cheat the Bank by sanctioning a corporate loan of\r\nRs. 22.50 crore in favour of M/s Sven Genetech Limited, Secunderabad\r\n(Original Accused No. 1).</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n4. It appears from the materials on record that the company referred to\r\nabove had applied for loan for the purpose of purchase of new\r\nequipments/implementation of the expansion programme. The company\r\nhad also applied with the Bank for loan credit limit of Rs. 5 crore for the\r\npurpose of purchase of raw material from the domestic market and cash\r\ncredit limit of Rs. 20 crore for using as working capital. It is the case of\r\nthe prosecution that the facilities sanctioned by the Bank were not\r\nutilised by the company for the purposes for which it was sanctioned and\r\nthe company diverted the funds for its personal benefits and to clear its\r\nold debts. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>37. Having heard the learned counsel appearing for the parties and having\r\ngone through the materials placed on record the following questions of\r\nlaw fall for our consideration:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Whether the appellant, serving in his capacity as an Assistant\r\nGeneral Manager, State Bank of India, Overseas Bank, is\r\nremovable from his office save by or with the sanction of the\r\nGovernment so as to make Section 197 of the CrPC applicable?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n(ii) Is it permissible for the Special Court (CBI) to proceed against\r\nthe appellant for the offences punishable under the IPC despite\r\nthe fact that the sanction under Section 19 of the PC Act, 1988 to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">prosecute the appellant for the offences under the PC Act, 1988,\r\nis not on record as the same came to be declined?</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>40. Section 197 of the Cr PC provides that when any person who is or was a\r\npublic servant, not removable from his office save by or with the\r\nsanction of the Central Government or State Government is accused of\r\nany offence alleged to have been committed by him while acting or\r\npurporting to act in the discharge of his official duties, no Court shall\r\ntake cognizance of such offence, except with the previous sanction of the\r\nappropriate Government.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>41. Sub-section (1) of Section 197 of the CrPC shows that sanction for\r\nprosecution is required where any person who is or was a Judge or\r\nMagistrate or a public servant not removable from his office save by or\r\nwith the sanction of the Government is accused of any offence alleged to\r\nhave been committed by him while acting or purporting to act in\r\ndischarge of his official duty. Article 311 of the Constitution lays down\r\nthat no person, who is a member of a civil service of the Union or State\r\nor holds a civil post under the Union or State, shall be removed by an <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">authority subordinate to that by which he was appointed. It, therefore,\r\nfollows that protection of sub-section (1) of Section 197 of CrPC is\r\navailable only to such public servants whose appointing authority is the\r\nCentral Government or the State Government and not to every public\r\nservant.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>46. The question as to whether a Manager of Nationalised Bank can claim\r\nbenefit of Section 197 of the CrPC is not res integra. This Court in K.\r\nCh. Prasad v. Smt. J. Vanalatha Devi and Others reported in (1987) 2\r\nSCC 52, had the occasion to consider the very same question in\r\nreference to one who claimed to be a public servant working in a\r\nNationalised Bank. The application filed by the appellant therein\r\nquestioned the maintainability of the prosecution for want of sanction\r\nunder Section 197 of the CrPC, was rejected by the Metropolitan\r\nMagistrate and revision to the High Court also met the same fate. This\r\nCourt, while dismissing the appeal held that though a person working in\r\na Nationalised Bank is a public servant, the provisions of Section 197 are\r\nnot attracted at all. In para 6 of the judgment, following has been held :\r\n(SCC p. 54)\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>“6. It is very clear from this provision that this section is\r\nattracted only in cases where the public servant is such who is\r\nnot removable from his office save by or with the sanction of\r\nthe Government. It is not disputed that the appellant is not\r\nholding a post where he could not be removed from service\r\nexcept by or with the sanction of the government. In this view\r\nof the matter even if it is held that the appellant is a public\r\nservant still provisions of Section 197 are not attracted at all.”<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>47. The aforesaid decision of this Court in K. Ch. Prasad (supra) has been\r\nquoted with approval in a later decision in the case of S.K. Miglani\r\n(supra). In this case, the appellant was working as a Manager in the Bank <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of Baroda, Faridabad Branch. A complaint in writing was lodged by the\r\nDirector, Housing against the appellant. On the strength of the said\r\ncomplaint, the Kotla Mubarakpur Police Station registered a First\r\nInformation Report for the offences under Sections 201, 409, 419, 420,\r\n467, 468, 471 and 120-B respectively of the IPC. It was the case of the\r\nprosecution that the appellant therein and another co-accused in\r\ncollusion with each other acted on a fake request of original allottee for\r\ncost reduction of a flat from Rs. 10.66 lakh to Rs. 7.77 lakh with the\r\napproval of the competent authority. Many other allegations were\r\nlevelled in the said FIR. Upon completion of the investigation,\r\nchargesheet was submitted. The appellant filed an application before the\r\nACMM, Saket Court, New Delhi in the FIR referred to above, stating\r\nthat he being a public servant employed with the Nationlised Bank as a\r\nManager, it was mandatory to seek sanction against him in terms of\r\nSection 197 of the CrPC.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>48. It was argued before the Court that he may be discharged on account of\r\nnon-compliance under Section 197 of the CrPC. The Chief Metropolitan\r\nMagistrate (South), Saket Court rejected the application filed by the\r\nappellant therein, seeking discharge for want of sanction. The matter\r\nreached up to this Court. This Court held in paras 10 and 12 respectively\r\nas under:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>“10. The appellant being a Manager in a nationalised bank\r\nwhether can claim that before prosecuting him sanction is\r\nrequired under Section 197. The CMM having come to the\r\nopinion that the appellant having not satisfied that he was a\r\npublic servant not removable from his office save by or with\r\nthe sanction of the Government, Section 197 CrPC was not\r\nattracted with regard to the appellant. After coming to the\r\nabove conclusions, it was not necessary for the CMM to enter\r\ninto the question as to whether the acts alleged against the\r\nappellant were discharged in performance of official duty.<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span>12. The High Court in its impugned judgment has not adverted\r\nto the above aspect and has only confined to the discussion as\r\nto whether the acts alleged of the appellant were in discharge\r\nof official duty. The High Court also had relied on the\r\n judgment of this Court in Parkash Singh Badal [Parkash\r\n Singh Badal v. State of Punjab, (2007) 1 SCC 1 : (2007) 1\r\nSCC (Cri) 193] . We, having come to the conclusion that the\r\nappellant being not a public servant removable from his office\r\nsave by or with the sanction of the Government, sanction\r\nunder Section 197 CrPC was not applicable. The appellant\r\ncannot claim protection under Section 197 CrPC. We are of\r\nthe view that examination of further question as to whether the\r\nappellant was acting or purporting to act in the discharge of\r\nhis official duty was not required to be gone into, when he did\r\nnot fulfil conditions for applicability of Section 197(1) CrPC.”</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>49. It is pertinent to note that the banking sector being governed by the\r\nReserve Bank of India and considered as a limb of the State under\r\nArticle 12 of the Constitution and also by virtue of Section 46A of the\r\nBanking Regulation Act, 1949, the appellant herein is deemed to be a\r\n“public servant’ for the purpose of provisions under the PC Act, 1988.\r\nHowever, the same cannot be extended to the IPC. Assuming for a\r\nmoment that the appellant herein should be considered as a “public\r\nservant” for the IPC sanction also, the protection available under\r\nSection 197 of the CrPC is not available to the appellant herein since,\r\nthe conditions in built under Section 197 of the CrPC are not fulfilled.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>50. Unfortunately, in the case on hand, the High Court also missed or\r\noverlooked the aforesaid aspect and confined its adjudication as to\r\nwhether the acts alleged of the appellant were in discharge of the\r\nofficial duty.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Question No. 1 is answered accordingly. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>QUESTION NO. 2</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>51. It was vociferously argued by the learned counsel appearing for the\r\nappellant that as sanction under Section 19 of the PC Act, 1988 has not\r\nbeen granted, the appellant cannot not be prosecuted for the offences\r\nunder the IPC alone and he should be discharged from the criminal\r\nproceedings. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>53. Sanction contemplated under Section 197 of the CrPC concerns a\r\npublic servant who “is accused of any offence alleged to have been\r\ncommitted by him while acting or purporting to act in the discharge of\r\nhis official duty” whereas, the offences contemplated in the PC Act,\r\n1988 are those which cannot be treated as acts either directly or even\r\npurportedly done in the discharge of his official duties.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n54. The offences under the IPC and offences under the PC Act, 1988 are\r\ndifferent and distinct. What is important to consider is whether the\r\noffences for one reason or the other punishable under the IPC are also\r\nrequired to be approved in relation to the offences punishable under the\r\nPC Act, 1988. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>56. In Kalicharan Mahapatra v. State of Orissa, reported in (1998) 6 SCC\r\n411, this Court noted:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>“…The sanction contemplated in Section 197 of the Code\r\nconcerns a public servant who ‘is accused of any offence\r\nalleged to have been committed by him while acting or\r\npurporting to act in the discharge of his official duty’, whereas\r\nthe offences contemplated in the PC Act are those which\r\ncannot be treated as acts either directly or even purportedly\r\ndone in the discharge of his official duties. Parliament must\r\nhave desired to maintain the distinction and hence the wording\r\nin the corresponding provision in the former PC Act was\r\nmaterially imported in the new PC Act, 1988 without any\r\nchange in spite of the change made in Section 197 of the\r\nCode…”<br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>57. In Lalu Prasad alias Lalu Prasad Yadav v. State of Bihar reported in\r\n(2007) 1 SCC 4, this Court observed as under:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i><br></i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>“10. It may be noted that Section 197 of the CrPC and Section\r\n19 of the PC Act, 1988 operate in conceptually different fields.\r\nIn cases covered under the Act, in respect of public servants\r\nthe sanction is of automatic nature and thus factual aspects\r\nare of little or no consequence. Conversely, in a case relatable\r\nto Section 197 of the CrPC, the substratum and basic features\r\nof the case have to be considered to find out whether the\r\nalleged act has any nexus with the discharge of duties.\r\nPosition is not so in case of Section 19 of the Act.”</i><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>58. Thus, although in the present case, the appellant has been discharged\r\nfrom the offences punishable under the PC Act, 1988 yet for the IPC\r\noffences, he can be proceeded further in accordance with law.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> 59. From the aforesaid, it can be said that there can be no thumb rule that in\r\na prosecution before the court of Special Judge, the previous sanction\r\nunder Section 19 of the PC Act, 1988 would invariably be the only prerequisite. If the offences on the charge of which, the public servant is\r\nexpected to be put on trial include the offences other than those\r\npunishable under the PC Act, 1988 that is to say under the general law\r\n(i.e. IPC), the court is bound to examine, at the time of cognizance and\r\nalso, if necessary, at subsequent stages (as the case progresses) as to\r\nwhether there is a necessity of sanction under Section 197 of the CrPC.\r\nThere is a material difference between the statutory requirements of\r\nSection 19 of the PC Act, 1988 on one hand, and Section 197 of the\r\nCrPC, on the other. In the prosecution for the offences exclusively\r\nunder the PC Act, 1988, sanction is mandatory qua the public servant.\r\nIn cases under the general penal law against the public servant, the\r\nnecessity (or otherwise) of sanction under Section 197 of the CrPC\r\ndepends on the factual aspects. The test in the latter case is of the\r\n“nexus” between the act of commission or omission and the official <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">duty of the public servant. To commit an offence punishable under law\r\ncan never be a part of the official duty of a public servant. It is too\r\nsimplistic an approach to adopt and to reject the necessity of sanction\r\nunder Section 197 of the CrPC on such reasoning. The “safe and sure\r\ntest”, is to ascertain if the omission or neglect to commit the act\r\ncomplained of would have made the public servant answerable for the\r\ncharge of dereliction of his official duty. He may have acted “in excess\r\nof his duty”, but if there is a “reasonable connection” between the\r\nimpugned act and the performance of the official duty, the protective\r\numbrella of Section 197 of the CrPC cannot be denied, so long as the\r\ndischarge of official duty is not used as a cloak for illicit acts.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>61. In overall view of the matter, we have reached to the conclusion that\r\nthe appeal deserves to be dismissed and is hereby dismissed. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '213353b6c2fe5a44531abaa3ae5d639a.jpeg', '7a0fe9eed2892ab9988488af3a0f1b96.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-10', 1, '', '', '2023-08-09 12:29:43', '2023-08-10 06:22:11'),
(3310, 'rT5ZYR3AlyIQgBhKCpFQeTBG3', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka High Court directs integration of Police IT with Road Accident Data Base, Forensic Laboratory Management System, Insurance Companies and Transport Department for the effective redressal of motor vehicle accident victims. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The Divisional Manager Vs Ramu and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 201961 of 2023 decided on 21 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. On account of an accident which occurred various persons filed claim petitions before the Trial Court in MVC Nos.575/2022, 576/2022 and 577/2022. The present petition arises out of an order dated 05.07.2023 passed by the III-Additional Senior Civil Judge and JMFC, Raichur in FR MVC No.575/2022 on an application under Section 5 of the Limitation Act, condoning delay of 5 months in filing the claim petition.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">7. Before adverting to the submission of learned counsel for the petitioner, I would advert to the context of the matter. The claim petition came to be filed by the claimant seeking for compensation on account of an accident where the claimant who is a minor, suffered from fracture on the lateral side of </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the left leg, upper right leg and certain other wounds requiring major surgeries and hospitalization of the claimant and the claimant being laid up for a period of two months. Suffice it to say that the claim petition had been filed in order to redress and claim compensation for an accident which has occurred. Whether the accident has occurred and the insurance policy covers the same is a matter of trial. The only issue raised in the present matter is as regards the limitation period.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. Section 166 of the MV Act provides for a claim of compensation to be made on account of either injury or death being caused due to a motor vehicle accident. It is amply clear that section 166 of the MV Act is a beneficial provision which is contained in the MV Act as amended from time to time to provide benefit to any injured or to the legal representatives of a deceased. The object of section 166 of the MV Act being beneficial, any provision to be applied <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">elating thereto would also, in my considered opinion, be required to be applied beneficially.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. Section 5 of the Limitation Act provides for condonation of delay wherever any claim petition, appeal, etc., are filed beyond the period of limitation and provides discretion to the Court to consider the reasons made out in an application filed under Section 5 of the Limitation Act and if sufficient cause is made out to condone the delay. As aforesaid MV Act being a beneficial enactment Section 5 of the Limitation Act being enacted to provide succor to persons who have come to Court late, but with a valid reason, Section 5 of the Limitation Act would also have to be considered beneficially and there being no bar under the MV Act for applying the principles under section 5 of the Limitation Act, I am of the considered opinion that it cannot now be said that there is a blanket embargo under subsection (3)</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of Section 166 of the MV Act in entertaining a claim petition filed after the limitation period.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. The object of this amendment is also to see to it that claimants either injured or legal representatives of the deceased, who may or may not know the provisions of law, are provided remedy through law automatically instead of they being required to approach the Court. The FAR itself being treated as a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">claim petition on the FAR being transmitted to the Court. In the present case, unfortunately, the Investigating Officer has not done so. If the Investigating Officer had forwarded the FAR, it would have been treated as a claim petition and the proceedings started and there could never be any delay in filing a claim petition as now sought to be contended by the insurance company. It is required that all the Police Officers/Investigating Officers registering an FAR relating to an accident adhere to the provision of section 159 of the MV Act and forward all first information reports registered in respect of an accident to the Motor Vehicles Accident Claims Tribunal, so that the same can be treated as the claim petition and the process commenced.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. In terms of Section 159 of the MV Act, the Police Officer shall during the investigation prepare an accident information report to facilitate the settlement of claim in such form and manner within three months and containing such particulars submit the same to the claims Tribunal and such other agencies as may be prescribed</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. In terms of Section 160 of the MV Act, registering authority or officer-in-charge of the police station is required to perform certain duties. The said Section reads as under:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>160. Duty to furnish particulars of vehicle involved in accident -- A registering authority or the officer-in-charge of a police station shall, if so required by a person who alleges that he is entitled to claim compensation in respect of an accident arising out of the use of a motor vehicle, or if so required by an insurer against whom a claim has been made in respect of any motor vehicle, furnish to that person or to that insurer, as the case may be, on payment of the prescribed fee, any information at the disposal of the said authority or the said police officer relating to the identification marks and other particulars of the vehicle and the name and address of the person who was using the vehicle at the time of the accident or was injured by it and the property, if any, damaged in such form and within such time as the Central Government may prescribe.</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. In terms of Section 161 of the MV Act, certain interim compensation is contemplated to be paid and a scheme to be notified. The said Section reads as under:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>161. Special provisions as to compensation in case of hit and run motor accident -- (1) Notwithstanding anything contained in any other law for the time being in force or any instrument having the force of law, the Central Government shall provide for paying in accordance with the provisions of this Act and the scheme made under sub-section (3), compensation in respect of the death of, or grievous hurt to, persons resulting from hit and run motor accidents<br></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>(2) Subject to the provisions of this Act and the scheme made under sub-section (3), there shall be paid as compensation,-- (a) in respect of the death of any person resulting from a hit and run motor accident, a <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">fixed sum of two lakh rupees or such higher amount as may be prescribed by the Central Government; (b) in respect of grievous hurt to any person resulting from a hit and run motor accident, a fixed sum of fifty thousand rupees or such higher amount as may be prescribed by the Central Government.</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>(3) The Central Government may, by notification in the Official Gazette, make a scheme specifying the manner in which the scheme shall be administered by the Central Government or General Insurance Council, the form, manner and the time within which applications for compensation may be made, the officers or authorities to whom such applications may be made, the procedure to be followed by such officers or authorities for considering and passing orders on such applications, and all other matters connected with, or incidental to, the administration of the scheme and the payment of compensation under this section.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>(4) A scheme made under sub-section (3) may provide that,--</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>(a) a payment of such sum as may be prescribed by the Central Government as interim relief to any claimant under such scheme;</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(b) a contravention of any provision thereof shall be punishable with imprisonment which may extend to two years, or with fine which shall not be less than twenty-five thousand rupees but may extend to five lakh rupees or with both; (c) the powers, functions or duties conferred or imposed on any officer or authority by such scheme may be delegated with the prior approval in writing of Central Government, by such officer or authority to any other officer or authority.]</span><span style=\"font-size: 12pt;\"> </span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. The Central Motor Vehicles (Fifth Amendment) Rules, 2022 (hereinafter referred to as \'Rules of 2022\' for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">short) having come into force on 01.04.2022, those Rules which give effect to the amendment in the year 2019, would also have to be read along with and in conjunction with subsection (3) of Section 166 of the MV Act. In my considered opinion, apart from the reasons aforestated, subsection (3) of Section 166 of the MV Act, is virtually rendered redundant, if not redundant, it is made dependent on the various actions required to be carried out by the different authorities under the Rules of 2022.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. It is in that background, subsection (3) of Section 166 of the MV Act, has to be considered. Subsection <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(3) of Section 166 of the MV Act provides that no application for compensation shall be entertained unless it is made within six months of the occurrence of the accident. This subsection (3) of Section 166 of the MV Act is required to be applied prospectively from the date on which the amendment came into effect and cannot be applied retrospectively.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>21. Be that as it may, subsection (3) of Section 166 of the MV Act would also have to be read in consonance with Sections 159, 160 and 161 of the MV Act among other provisions of the MV Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">22. Insofar as accident arising after the Rules of 2022 came into effect on 01.04.2022, it is required that the DAR be treated as a claim petition under subsection (4) of Section 166 of the MV Act and the persons, whose details are furnished by the Investigating Officer as claimants, are to be so treated as claimants. If the Investigating Officer were </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not to furnish such details, then in the event of claimants appearing before the Court claiming compensation on account of the accident, the DAR is required to register as a claim petition after appearance of such claimants. The time period for submission of the DAR is stated to be 90 days. There is no particular time period fixed for appearance of the claimants if details are not furnished by the Investigating Officer, thus, subsection (3) of Section 166, in my considered opinion, would be rendered redundant by the methodology of carrying out investigation and registering of a claim petition. These aspects would also have to be looked into by the legislature. After the above are implemented, all the documents in terms of Forms and Annexure-XIII can be electronically transmitted among all the stakeholders as also to the Court, if that is done, then the transfer and exchange of the documents being done in an asynchronous manner. That is to say, all the stakeholders receiving the documents </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">simultaneously at the same or different points of time without following serial order would expedite the matter and further enable Courts to register the DAR as a claim petition, secure evidence electronically and conduct proceedings expeditiously.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. Irrespective of Rules of 2022, in terms of Section 159 of the MV Act, if the Investigating Officer has submitted the First Accident Report in terms of Section 159 of the MV Act, the same would have reached the Court for necessary action to be taken. It is on account of Investigating Officer not having sent the First Accident Report that the above situation has arisen.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. As afore observed, the MV Act being a beneficial Act, the provisions thereof had to be given beneficial meaning and effect. The benefit under the Act, cannot be taken away on a technical aspect that too of limitation, thus, the Trial Court having applied Section 5 of the Limitation Act to the fact situation, I do not find any infirmity thereof. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30. In view of the above, I do not find any infirmity in the order passed by the III-Additional Senior Civil Judge and JMFC, Raichur in FR. MVC No.575/2022, as such, the Writ Petition stands dismissed. </b></p>', '5e2797703f41a73596dee1a17b214757.JPG', '0abb861189cec574cc8182a13c9ed6e2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-10', 1, '', '', '2023-08-09 12:18:33', '2023-08-10 12:20:06');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3308, 'x74kUn8Z2w1StEOqBcj6Xi1QW', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Application for Parole cannot be rejected merely because an appeal against conviction is pending. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Arjun Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 2018808 of 2023 decided on 26 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The petitioner was convicted in S.C.No.50/2018 by the First Additional District and Sessions Judge, Bagalkot, for offenses under Sections 143, 147, 148, 504, 324, 326, 302 r/w Section 149 of the Indian Penal Code, 1860 (IPC for short) for life imprisonment. Aggrieved by the same, the petitioner has filed an appeal in Criminal Appeal No.100002/2021 which is pending before this Court at Dharwad Bench. The bail application which had been filed in the said matter has been rejected. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The short question that arises for determination in the present matter is whether an application for Parole can be rejected merely because an Appeal has been filed or a bail application is pending consideration?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Clause (j) of sub-rule (2) of Rule 191 of Rules, 1974 prior to the amendment is reproduced hereunder:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>\"191. Release under Section 56.- (2) (a) to (i) xxxx</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>(j) The following shall be the eligibility conditions for release of prisoners on ordinary parole:- </b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>(i) A prisoner who has been classified as habitual criminal for the purpose of these rules and who has had more than three convictions or against whom cases are pending before courts (for offences punishable with death or imprisonment for more than 7 years) shall not be eligible for parole.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>(ii) At the time of release the prisoner must have served on half of his sentence including remission, or a period of not less than two years of sentence including remission, whichever is less and there should be a gap of six months between two paroles.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>(iii) His conduct in prison has been good.\"</i> <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. The amendment carried out to sub-clause (i) of Clause (j) of sub-rule (2) of Rule 191, is as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>\"in clause (j)</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>a. in sub clause (i) after the words \"against whom cases\" the words \"or bail applications\" shall be inserted and</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>b. the words and brackets \"(for offences punishable with death or imprisonment for more than 7 years)\" shall be omitted.\" <br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">10. By virtue of both the rule and the amended rule, an application for parole filed by a convict in custody can be rejected initially when the cases are pending, subsequently, by way of amendment where the bail applications are pending. In my considered opinion, a </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">case pending would not take into consideration an appeal, because an appeal is filed in furtherance of a conviction. It is on such conviction and being in custody, that a parole application is filed, the cases which are pending mentioned in Clause (j) has to be read ejusdem generis in association and conjunction with the earlier words which relate to a prisoner who has been classified as habitual criminal and had more than three convictions or against whom cases are pending, that would only mean cases other than the case in which the accused has been convicted are pending.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. In the event of there being any other criminal cases against the accused, the same could be taken into consideration by the prison authorities for rejection of the parole application. The word \"cases\" as afore observed in my opinion, cannot include an appeal filed from an order of conviction. This I say so for the reason that if such an interpretation as contended by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">learned Additional Government Advocate is accepted, then it would result in a situation where a person convicted of an offence if files an application for parole without filing appeal, his application would be considered. But, merely because, a convict has filed an appeal, his application would stand rejected due to the filing of an appeal.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12. This would amount to a fetter being imposed by the executive under a subordinate legislation on a right to file an appeal by a convict which can never be the case, more so, when the right to file an appeal in terms of conviction is a right guaranteed under Article 21 of the Constitution of India. The Apex Court as also this Court provides legal aid and legal assistance to a convict to file an appeal under the aegis of the Legal Service Authority, be it either the National Legal Service Authority or the Concerned State Legal Service Authority. On the one hand, when filing an appeal on a conviction being</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">recognized to be a right guaranteed under the Article 21 of the Constitution of India which is supported by the Courts, on the other hand, the executive seeking to restrict the exercise of such right by imposing a fetter of not considering an application for parole, if an appeal is filed would act contrary to and is an antithesis to Article 21 of the Constitution.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>13. Thus, for both the above reasons, I am of the considered opinion that the word \"cases\" which is used in sub-clause (i) of clause (j) of sub-rule (2) of Rule 191 of Rules 1974, can only mean cases other than the case where the accused has been convicted and would not include an appeal from the case where an order of conviction is passed</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. Insofar as the further contention that the parole application has been rejected on account of pendency of a bail application, there may be some substance, in considering the pendency of a bail application while considering an application for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">parole, inasmuch as, if a bail application were to be allowed, the question of grant of parole would not arise. It is only when a bail application is rejected, the question of considering a parole application would arise. Thus, even where a bail application is rejected, the application for parole would have to be considered in terms of the applicable law and if no grounds are made out entitling the applicant to be released on parole, the said application could be rejected, otherwise, the same would have to be allowed.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. The Writ Petition is partly allowed. </b></p>', '8588ebdb3450f5698ba9a819f903aba0.jpeg', '96bc47891504efd8d166800e2d5ef76d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-09', 1, '', '', '2023-08-09 08:49:25', '2023-08-09 08:52:34'),
(3309, '8mGbeOQbjVILSk1280guJbRJm', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Election Petition without arraigning all the candidates to an election in an election petition where a declaration of the petitioner to be a returned candidate is sought for is liable to be dismissed. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Abida Begum Vs Mohd. Ismail and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 203232 of 2022 decided on 26 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The petitioner is before this Court seeking for the following relief:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>To set aside the judgment in Election Petition No.11/2021 passed by Senior Civil Judge &amp; JMFC, Shahapur, dated 31.10.2022 as per Annexure-D in the interest of justice and equity.&nbsp;<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. A notification was published by the respondent No.2 – Deputy Commissioner for election to the Gram&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Panchayath on 23.07.2020. The petitioner having contested was declared as elected candidate.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. On the basis of the submission made, the points that would arise for consideration are:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. Whether non-arraigning of all the candidates to an election in an election petition where a declaration of the petitioner to be a returned candidate is sought for would result in dismissal of the Election Petition in terms of Sub-section (1) of Section 17 read with clause (a) of Subsection (2) of Section 15 of the Panchayat Raj Act, 1993?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ii. Whether non-disclosure or suppression of the assets of the candidate in his nomination form or that of his/her spouse would amount to a corrupt practice requiring disqualification of the candidate or would it require for the petitioner in a Election Petition to establish that such suppression has resulted in an adverse impact favourable to the returned candidate in the elections?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>iii. Whether the verifying affidavit to all Election Petitions are required to be in Form-25 of Conduct of Election Rules, in terms of Rule 94-A of the Rules?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>iv. Whether the impugned order suffers from any legal infirmity requiring interference at the hands of this Court?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>v. What order?<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Answer to Point No.(1): Whether non arraigning of all the candidates to an election in an election petition where a declaration of the petitioner to be a returned candidate is sought for would result in dismissal of the Election Petition in terms of Sub-section (1) of Section 17 read with clause (a) of Subsection (2) of Section 15 of the Panchayat Raj Act, 1993?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.1.The petitioner whose election has been declared void has contended that when an election petitioner apart from challenging the election of the returned candidate seeks for a declaration that the election petitioner is the winner in terms of Section 15(2)(a) of Panchayat Raj Act, all the contestants have to be made a party. In this regard, he has relied upon the decision of the Delhi High Court in Surinder Kumar’s case (supra) where the Hon\'ble Delhi High Court has&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">held that provision of Order VI Rule 17 or Order I Rule 10 of CPC cannot be invoked in an Election Petition to bring on record the material particulars which had been missed out and/or to bring on record additional parties, though required to be made parties had not been made parties to the Election Petition. Thus, submission is that neither an application under Order VI Rule 17 nor under Order I Rule 10 of CPC not being permissible in the event of necessary party not being made a party, the Election Petition is required to be dismissed.&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.6. A perusal of Sub-Section (4) of Section 86 of the RP Act indicates that any candidate not already made a respondent can make an application within 14 days from the date of commencement of trial for him to seek to be joined as respondent. Thus, Sub-Section (4) of Section 86 of the RP Act also does not permit the petitioner to implead another candidate as a&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respondent after filing of the proceedings. The Hon\'ble Apex Court in the above decision has mandated by stating that in terms of Sub Section (1) of Section 86 of the RP Act, it is incumbent upon the High Court to dismiss an Election Petition which does not comply with the provisions of Sections 81 or Section 82 or Section 117 of the RP Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.8. Section 82 of the RP Act is relevant for the present matter and deals with parties to the petition. Section 82 mandates that where the petitioner in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner and when no such further&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">declaration is claimed, all the returned candidates are to be made parties.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10.9. Section 15(2)(a) of the Panchayat Raj Act, is in pari materia with Section 82(a) of the RP Act. Thus, the said mandate imposed upon by the Hon\'ble Apex Court in K.Venkateswara Rao’s case (supra) in terms of Section 82(a) of the RP Act would also equally apply to Section 15(2)(a) of the Panchayat Raj Act.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.11.Thus, in the present matter, there being no dispute that relief of declaration of the election&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner as the returned candidate is sought for, the trial Court ought not to have eschewed the said relief by dismissing the relief on the ground that all the contesting candidates have not been made parties. The trial Court ought to have taken into consideration the mandate under Section 15(2)(a) of the Panchayat Raj Act and the mandate imposed by the Hon\'ble Apex Court in K. Venkateswara Rao\'s case (supra) and dismissed the petition in limine on the ground that all the contesting parties had not been made parties, even though the declaration of the petitioner as the returned candidate was sought for.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10.12.Hence, I answer point No.1 by holding that nonarraigning of all the candidates to an election in a Election Petition where a declaration of the petitioner to be a returned candidate is sought for would necessarily result in dismissal of the</span><span style=\"font-size: 12pt;\">&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Election Petition in terms of Sub-section (1) of Section 17 read with Clause (a) of Sub-section (2) of Section 15 of the Panchayat Raj Act. The said dismissal can be made by the Court trying the Election Petition suo motu or an application made by any of the respondents in the said proceedings.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. My answer to point No.2: Whether nondisclosure or suppression of the assets of the candidate in his nomination form or that of his/her spouse would amount to a corrupt practice requiring disqualification of the candidate or would it require for the petitioner in a Election Petition to establish that such suppression has resulted in an adverse impact favourable to the returned candidate in the elections?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11.5. The Hon\'ble Apex Court by referring to Union of India vs. Association for Democratic Reforms10 has also held that it was incumbent&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for the Election Commissioner to secure voters information pertaining to assets not only of the candidate but also the spouse and the dependant members. Therefore, in the present case, it was incumbent on the petitioner to have disclosed her assets, her husband’s assets and also other dependent members. Non- disclosure thereof is not in dispute would therefore amount to undue influence and corrupt practice.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11.6. The Hon\'ble Apex Court in Rukmini Made Gowda’s case (supra) has also held that purity of election at all levels, be it election to the Union Parliament or a State Legislature or a Municipal Corporation, or Panchayat is of a national importance in which uniform policies are desirable in the interest of all the States and therefore, disclosure of assets has to be made of the candidate, spouse of the candidate and other dependent members.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11.7. It is not only suggestio falsi ie., suggesting of false information regarding the assets but also suppressio veri i.e., suppression of details relating to the assets which would be covered under Section 19 of the Panchayat Raj Act. That is to say suggestio falsi and suppressio veri of assets of the candidate, his or her spouse and dependent would come within the purview of Section 19 (1)(b) of the Panchayat Raj Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11.8. In that view of the matter, I answer point No.2 by holding that non-disclosure of assets or suppression of the assets of the candidate, or his or her spouse and dependent members would amount to corrupt practice requiring disqualification of the candidature and towards this end, there is no particular requirement for the election petitioner to specifically aver or prove that the suppression has resulted in adverse impact favourable to the returned&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">candidate in the election. The mere suppression is sufficient to invoke the provisions of Section 19(1)(b) of the Panchayat Raj Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. My Answer to Point No.3: Whether the verifying affidavit to all Election Petitions are required to be in Form-25 of Conduct of Election Rules, in terms of Rule 94-A of the Rules?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12.3. Rule 94-A of the Rules, 1961 which has been reproduced above indicates that the affidavit referred to in proviso to Sub-section (1) of Section 83 shall be sworn before a magistrate of the first class or a notary or a commissioner of oaths and shall be in Form-25. 12.4. Section 83 of the RP Act deals with contents of election petition and the proviso thereof requires an affidavit in the prescribed form in support of the allegation of such corrupt practice.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12.5. The prescribed form is Form-25, prescribed under Rule 94A of the Rules, 1961. The said form contains two distinct portions; first part as&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">regards averments made in the petition which are true to the knowledge of the deponent and the second part as regards that which are true to the information of the deponent.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12.9. A two judge bench of the Hon\'ble Apex Court in the case of A.Manju vs. Prajwal Revanna @ Prajwal R. and Others12 while reiterating the judgment of a three judge bench case in F.A.Sapa’s case (supra) has further held at paragraph 26 and 27 as under:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>26. However, we are not persuaded to agree with the conclusion arrived at by the High Court that the nonsubmission of Form 25 would lead to the dismissal of the election petition. We say so because, in our view, the observations made in Ponnala Lakshmaiah case [Ponnala Lakshmaiah v. Kommuri Pratap Reddy, (2012) 7 SCC 788] which have received the imprimatur of the three-Judge Bench in G.M. Siddeshwar case [G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776 :&nbsp;<span style=\"font-size: 12pt;\">(2013) 2 SCC (Civ) 715] appear not to have been appreciated in the correct perspective. In fact, G.M. Siddeshwar case [G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776 : (2013) 2 SCC (Civ) 715] has been cited by the learned Judge to dismiss the petition. If we look at the election petition, the prayer clause is followed by a verification. There is also a verifying affidavit in support of the election petition. Thus, factually it would not be appropriate to say that there is no affidavit in support of the petition, albeit not in Form 25. This was a curable defect and the learned Judge trying the election petition ought to have granted an opportunity to the appellant to file an affidavit in support of the petition in Form 25 in addition to the already existing affidavit filed with the election petition. In fact, a consideration of both the judgments of the Supreme Court referred to by the learned Judge i.e. Ponnala Lakshmaiah [Ponnala Lakshmaiah v. Kommuri Pratap Reddy, (2012) 7 SCC 788] as well as G.M. Siddeshwar [G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776 : (2013) 2 SCC (Civ) 715] , ought to have resulted in a conclusion that the correct ratio in view of these facts was to permit the appellant to cure this defect by filing an affidavit in the prescribed form. 27. The arguments of the learned counsel for Respondent 1 were predicated on the distinction between the absence of an affidavit and a defective affidavit. This presupposes that for an opportunity of cure to be granted, there must be the submission of a Form 25 affidavit which may be defective. This would be very narrow reading of the provisions. Once there is an affidavit, albeit not in Form 25, the appropriate course would be to permit an affidavit to be filed in Form 25. We have to appreciate that the petition is at a threshold stage. It is not as if the appellant has failed to cure the defect even on being pointed out so. This is not a case where the filing of an affidavit now in Form 25 would grant an opportunity for embellishment as is sought to be urged on behalf of Respondent 1.</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12.10.A reading of the above would indicate that if an objection is raised that the verifying affidavit is not in terms of Form-25 in that event, the Court ceased of the matter would have to provide an opportunity to the election petitioner to rectify the same, the defect being formal in nature cannot result in dismissal of the election petition.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12.15. In the present matter, I have come to a conclusion that the affidavit is in compliance of Form-25 and as such, Prajwal Revanna’s decision (supra) though not strictly applicable, if at all the respondent in the Election Petition&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">has raised this issue, the Court always could have permitted the petitioner to rectify it.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12.16.Hence, I answer point No.3 by holding that affidavit filed by the petitioner in Election Petition No.11/2021 is in due compliance with Rule 94A of the Rules, 1961, Form-25 thereof as also Section 83 of the RP Act</span><span style=\"font-size: 12pt;\">&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. Answer to Point No.4: Whether the impugned order suffers from any legal infirmity requiring interference at the hands of this Court?&nbsp;<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13.2. In the present case, the petitioner having not only sought for setting aside the election of the respondent No.1 but also having sought for declaration that he is the returned candidate, it was but required that all the other contestants were to be made a party since it is only in their presence that any finding could be given as regards the election petitioner being a returned candidate. This aspect though would require further consideration by the Law Commission, since multiple candidates were contesting the elections, the declaration of the election petitioner as a returned candidate when votes are distributed among multiple candidates would be very difficult if not impossible, it is probably only when there are two candidates and election of one of the candidates being&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">declared void, the other candidate could be declared as returned candidate. Even if there are three candidates, the matter could be difficult inasmuch as it cannot be ascertained as to in whose favour the votes polled by the returning candidate would have to be apportioned.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13.4. I answer point No.4 by holding that the order passed by the trial Court refusing the relief of declaration of the election petitioner as returned candidate on the ground that other contestants were not made a party and continued with the matter is not in accordance with Section 15(2)(a) of the Act when all the contestants were not made a party and relief of declaration&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the Election Petition as returned candidate was sought for, the Election Petition ought to have been rejected in limine in terms of SubSection (1) of Section 17 of the Panchayat Raj Act.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. Answer to Point No.5: What order?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14.1.The writ petition is allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Also held<span style=\"font-size: 22pt; font-family: var(--bs-font-sans-serif);\">&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"></p><p class=\"MsoNormal\"><span style=\"font-size: 22pt; line-height: 33.7333px;\"><b>Election Law. Non-disclosure or suppression of the assets of the candidate or his his/her spouse in his nomination amounts to corrupt practice. Karnataka High Court.&nbsp;</b></span></p>', 'e8bb4175985d3ca86a4a154b51ad615a.JPG', 'cc57a1102b93b978f8873936b5fd3c7d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-09', 1, '', '', '2023-08-09 12:17:16', '2023-08-09 08:01:17');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3314, 'TVDXe4de4JuVwrMompcLYaSuT', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Woman seeking relationships with people on social media platforms and after prolonged consensual sexual relationship, registering crimes alleging rape; such conduct amounts to abuse of process of law. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Girinath B Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 6863 of 2022 decided on 28 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">Criminal Petition No.6863 of 2022 raises a challenge to the\r\nproceedings in C.C.No.54359 of 2021 registered for offences\r\npunishable under Sections 417 and 420 of the IPC. Criminal\r\nPetition No.6485 of 2022 raises a challenge to the proceedings in\r\nC.C.No.247 of 2022 registered for offences punishable under\r\nSections 376(2)(n), 506, 504, 323, 114, 417 r/w 34 of the IPC.\r\nPetitioner/Girinath B in Crl.P.6863 of 2022 and 1st petitioner in\r\nCrl.P.6485 of 2022 are common in both these petitions; so is the c</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">omplainant and the cause of action is also common. Therefore,\r\nboth these petitions are taken up together and considered by this\r\norder. For the sake of convenience, petitioners will be hereinafter\r\nreferred to as the petitioner and the 2nd petitioner as such.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. It is not one, two, three, four or five, but six years of\r\nconsensual physical/sexual relationship between the petitioner and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the complainant after having met through social media platform.\r\nThe complaint narrates in minute details as to what has transpired\r\nbetween the two, for all the six years. The allegation that is made\r\nlater is, from 27-12-2019 intimacy between the two waned away or\r\nfaded away. Fading away of the intimacy after six years of\r\nconsensual acts of sexual intercourse cannot mean that it would\r\nbecome ingredients of Section 375 of the IPC. They were\r\nconsensual acts from day one and consensual acts till 27-12-2019.\r\nThe period is six long years. Therefore, it cannot but be construed\r\nthat it would not be a rape for it to become punishable under\r\nSection 376 of the IPC. If further proceedings are permitted to\r\ncontinue as observed hereinabove, it would run foul of plethora of\r\njudgments rendered by the Apex Court on the issue. I deem it\r\nappropriate to notice a few of them. The Apex Court in the case of\r\nPRAMOD SURYABHAN PAWAR v. STATE OF MAHARASHTRA1has drawn distinction between rape and consensual sexual\r\nrelationships. While delineating inter-play between promise of\r\nmarriage and allegation of rape, the Apex Court has held as follows:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\"16. Where the promise to marry is false and the\r\nintention of the maker at the time of making the promise\r\nitself was not to abide by it but to deceive the woman to\r\nconvince her to engage in sexual relations, there is a\r\n“misconception of fact” that vitiates the woman\'s\r\n“consent”. On the other hand, a breach of a promise\r\ncannot be said to be a false promise. To establish a false\r\npromise, the maker of the promise should have had no\r\nintention of upholding his word at the time of giving it.\r\nThe “consent” of a woman under Section 375 is vitiated\r\non the ground of a “misconception of fact” where such\r\nmisconception was the basis for her choosing to engage\r\nin the said act<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>17. In Uday v. State of Karnataka, (2003) 4 SCC\r\n46: 2003 SCC (Cri) 775] the complainant was a collegegoing student when the accused promised to marry her.\r\nIn the complainant\'s statement, she admitted that she\r\nwas aware that there would be significant opposition\r\nfrom both the complainant\'s and accused\'s families to the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">proposed marriage. She engaged in sexual intercourse\r\nwith the accused but nonetheless kept the relationship\r\nsecret from her family. The Court observed that in these\r\ncircumstances the accused\'s promise to marry the\r\ncomplainant was not of immediate relevance to the\r\ncomplainant\'s decision to engage in sexual intercourse\r\nwith the accused, which was motivated by other factors :\r\n(SCC p.58, para 25)</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“25. There is yet another difficulty which\r\nfaces the prosecution in this case. In a case of this\r\nnature two conditions must be fulfilled for the\r\napplication of Section 90 IPC. Firstly, it must be\r\nshown that the consent was given under a\r\nmisconception of fact. Secondly, it must be proved\r\nthat the person who obtained the consent knew, or\r\nhad reason to believe that the consent was given in\r\nconsequence of such misconception. We have\r\nserious doubts that the promise to marry induced\r\nthe prosecutrix to consent to having sexual\r\nintercourse with the appellant. She knew, as we\r\nhave observed earlier, that her marriage with the\r\nappellant was difficult on account of caste\r\nconsiderations. The proposal was bound to meet\r\nwith stiff opposition from members of both families.\r\nThere was therefore a distinct possibility, of which\r\nshe was clearly conscious, that the marriage may\r\nnot take place at all despite the promise of the\r\nappellant. The question still remains whether even\r\nif it were so, the appellant knew, or had reason to\r\nbelieve, that the prosecutrix had consented to\r\nhaving sexual intercourse with him only as a\r\nconsequence of her belief, based on his promise,\r\nthat they will get married in due course. There is\r\nhardly any evidence to prove this fact. On the\r\ncontrary, the circumstances of the case tend to\r\nsupport the conclusion that the appellant had\r\nreason to believe that the consent given by the\r\nprosecutrix was the result of their deep love for\r\neach other. It is not disputed that they were deeply\r\nin love. They met often, and it does appear that the\r\nprosecutrix permitted him liberties which, if at all,\r\nare permitted only to a person with whom one is in</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">deep love. It is also not without significance that\r\nthe prosecutrix stealthily went out with the\r\nappellant to a lonely place at 12 o\'clock in the night.\r\nIt usually happens in such cases, when two young\r\npersons are madly in love, that they promise to\r\neach other several times that come what may, they\r\nwill get married.”</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>18. To summarise the legal position that emerges\r\nfrom the above cases, the “consent” of a woman with\r\nrespect to Section 375 must involve an active and\r\nreasoned deliberation towards the proposed act. To\r\nestablish whether the “consent” was vitiated by a\r\n“misconception of fact” arising out of a promise to marry,\r\ntwo propositions must be established. The promise of\r\nmarriage must have been a false promise, given in bad\r\nfaith and with no intention of being adhered to at the\r\ntime it was given. The false promise itself must be of\r\nimmediate relevance, or bear a direct nexus to the\r\nwoman\'s decision to engage in the sexual act.”</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>In this case, the girl lodged a complaint with the\r\npolice stating that she and the accused were neighbours\r\nand they fell in love with each other. One day in February\r\n1988, the accused forcibly raped her and later consoled\r\nher by saying that he would marry her. She succumbed to\r\nthe entreaties of the accused to have sexual relations\r\nwith him, on account of the promise made by him to\r\nmarry her, and therefore continued to have sex on\r\nseveral occasions. After she became pregnant, she\r\nrevealed the matter to her parents. Even thereafter, the\r\nintimacy continued to the knowledge of the parents and\r\nother relations who were under the impression that the\r\naccused would marry the girl, but the accused avoided\r\nmarrying her and his father took him out of the village to\r\nthwart the bid to marry. The efforts made by the father of\r\nthe girl to establish the marital tie failed. Therefore, she\r\nwas constrained to file the complaint after waiting for\r\nsome time.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\r\n20. With this factual background, the Court held\r\nthat the girl had taken a conscious decision, after active\r\napplication of mind to the events that had transpired. It\r\nwas further held that at best, it is a case of breach of\r\npromise to marry rather than a case of false promise to\r\nmarry, for which the accused is prima facie accountable <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for damages under civil law. </span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>23. Thus, there is a clear distinction between\r\nrape and consensual sex. The court, in such cases,\r\nmust very carefully examine whether the\r\ncomplainant had actually wanted to marry the\r\nvictim or had mala fide motives and had made a\r\nfalse promise to this effect only to satisfy his lust,\r\nas the latter falls within the ambit of cheating or\r\ndeception. There is also a distinction between mere\r\nbreach of a promise and not fulfilling a false\r\npromise. If the accused has not made the promise\r\nwith the sole intention to seduce the prosecutrix to\r\nindulge in sexual acts, such an act would not\r\namount to rape. There may be a case where the\r\nprosecutrix agrees to have sexual intercourse on\r\naccount of her love and passion for the accused and\r\nnot solely on account of the misconception created\r\nby accused, or where an accused, on account of\r\ncircumstances which he could not have foreseen or\r\nwhich were beyond his control, was unable to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">marry her despite having every intention to do</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b><i>24... <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">She has\r\nspecifically stated that “as I was also a widow and I\r\nwas also in need of a companion, I agreed to his\r\nproposal and since then we were having love affair\r\nand accordingly we started residing together. We\r\nused to reside sometimes at my home whereas\r\nsometimes at his home”. Thus, they were living\r\ntogether, sometimes at her house and sometimes at\r\nthe residence of the appellant. They were in a\r\nrelationship with each other for quite some time\r\nand enjoyed each other\'s company. It is also clear\r\nthat they had been living as such for quite some\r\ntime together. When she came to know that the\r\nappellant had married some other woman, she\r\nlodged the complaint. It is not her case that the\r\ncomplainant has forcibly raped her. She had taken a\r\nconscious decision after active application of mind\r\nto the things that had happened. It is not a case of\r\na passive submission in the face of any\r\npsychological pressure exerted and there was a\r\ntacit consent and the tacit consent given by her was\r\nnot the result of a misconception created in her\r\nmind. We are of the view that, even if the\r\nallegations made in the complaint are taken at their\r\nface value and accepted in their entirety, they do </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">not make out a case against the appellant. We are\r\nalso of the view that since the complainant has\r\nfailed to prima facie show the commission of rape,\r\nthe complaint registered under Section 376(2)(b)\r\ncannot be sustained.”</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b>The Apex Court in the afore-quoted judgment has considered the\r\nentire spectrum of law on the issue while following the judgment in\r\nthe case of DHRUVARAM MURALIDHAR SONAR V. STATE OF\r\nMAHARASHTRA reported in (2019)18 SCC 191 and had\r\nobliterated the proceedings qua the accused.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b>12. Later to the judgment so rendered by the Apex Court in\r\nthe case of PRAMOD SURYABHAN PAWAR , the Apex Court, in the\r\ncase of SHAMBHU KARWAR v. STATE OF UTTARPRADESH AND\r\nANOTHER2\r\n, has held as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b><i>\"16. Where the promise to marry is false and\r\nthe intention of the maker at the time of making the\r\npromise itself was not to abide by it but to deceive\r\nthe woman to convince her to engage in sexual\r\nrelations, there is a “misconception of fact” that\r\nvitiates the woman\'s “consent”. On the other hand,\r\na breach of a promise cannot be said to be a false\r\npromise. To establish a false promise, the maker of\r\nthe promise should have had no intention of\r\nupholding his word at the time of giving it. The\r\n“consent” of a woman under Section 375 is vitiated\r\non the ground of a “misconception of fact” where\r\nsuch misconception was the basis for her choosing\r\nto engage in the said act…\r\n[…]</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b><i>18. To summarise the legal position that\r\nemerges from the above cases, the “consent” of a\r\nwoman with respect to Section 375 must involve an\r\nactive and reasoned deliberation towards the\r\nproposed act. To establish whether the “consent”\r\nwas vitiated by a “misconception of fact” arising\r\nout of a promise to marry, two propositions must be\r\nestablished. The promise of marriage must have\r\nbeen a false promise, given in bad faith and with no\r\nintention of being adhered to at the time it was\r\ngiven. The false promise itself must be of\r\nimmediate relevance, or bear a direct nexus to the\r\nwoman\'s decision to engage in the sexual act. <br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b><i>12. In the present case, the issue which had to be\r\naddressed by the High Court was whether, assuming all\r\nthe allegations in the charge-sheet are correct as they <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">stand, an offence punishable under Section 376 IPC was\r\nmade out. Admittedly, the appellant and the second\r\nrespondent were in a consensual relationship from 2013\r\nuntil December 2017. They are both educated adults. The\r\nsecond respondent, during the course of this period, got\r\nmarried on 12 June 2014 to someone else. The marriage\r\nended in a decree of divorce by mutual consent on 17\r\nSeptember 2017. The allegations of the second\r\nrespondent indicate that her relationship with the\r\nappellant continued prior to her marriage, during the\r\nsubsistence of the marriage and after the grant of divorce\r\nby mutual consent.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>\r\n13. In this backdrop and taking the allegations in\r\nthe complaint as they stand, it is impossible to find in the\r\nFIR or in the charge-sheet, the essential ingredients of an\r\noffence under Section 376 IPC. The crucial issue which is\r\nto be considered is whether the allegations indicate that\r\nthe appellant had given a promise to the second\r\nrespondent to marry which at the inception was false and\r\non the basis of which the second respondent was induced\r\ninto a sexual relationship. Taking the allegations in the\r\nFIR and the charge-sheet as they stand, the crucial\r\ningredients of the offence under Section 375 IPC are\r\nabsent. The relationship between the parties was purely\r\nof a consensual nature. The relationship, as noted above,\r\nwas in existence prior to the marriage of the second\r\nrespondent and continued to subsist during the term of\r\nthe marriage and after the second respondent was\r\ngranted a divorce by mutual consent.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>14. The High Court, in the course of its judgment,\r\nhas merely observed that the dispute raises a question of\r\nfact which cannot be considered in an application under\r\nSection 482 of CrPC. As demonstrated in the above\r\nanalysis, the facts as they stand, which are not in\r\ndispute, would indicate that the ingredients of the\r\noffence under Section 376 IPC were not established. The\r\nHigh Court has, therefore, proceeded to dismiss the\r\napplication under Section 482 of CrPC on a completely\r\nmisconceived basis.\"</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b>In yet another judgment the Apex Court in the case of MANDAR\r\nDEEPAK PAWAR V. STATE OF MAHARASHTRA AND ANOTHER3\r\nhas held as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b><i>\"We are fortified to adopt this course of action by\r\nthe judicial view in (2019) 9 SCC 608 titled “Pramod\r\nSuryabhan Pawar v. State of Maharashtra & another”\r\nwhere in the factual scenario where complainant was\r\naware that there existed obstacles in marrying the\r\naccused and still continued to engage in sexual relations,\r\nthe Supreme Court quashed the FIR. A distinction was\r\nmade between a false promise to marriage which is given\r\non understanding by the maker that it will be broken and\r\na breach of promise which is made in good faith but\r\nsubsequently not fulfilled. This was in the context of\r\nSection 375 Explanation 2 and Section 90 of the IPC,\r\n1860.\"</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b>The afore-quoted were all cases where the relationship between the\r\naccused and the prosecutrix was consensual and the allegation was\r\nthat of offence punishable under Section 376 of the IPC for rape. If\r\nthe afore-narrated facts are considered on the bedrock of\r\nelucidation by the Apex Court, it becomes a case where this Court\r\nhas to step in, exercise its jurisdiction, under Section 482 of the\r\nCr.P.C., to obliterate the crime registered against the petitioner for\r\nthe offence of rape under Section 376 of the IPC inter alia, failing\r\nwhich, it would become an abuse of the process of law.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><b> (i) Criminal petitions are allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '0086574c65b01563023c1505bae2004d.jpeg', '446e35b713b6e4aa8600662de9e93199.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-11', 1, '', '', '2023-08-09 13:24:57', '2023-08-11 11:50:03'),
(3315, 'U9K7VhZIytF5RkVekdVN9BHBP', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Judgment on admissions. It is not permissible for the Court to  make roving enquiry for disposal of the application filed under Order XII Rule 6 of CPC. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>V. Narayanaswamy Vs M.V. Sriramareddy and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Revision Petition 18 of 2023 decided on 4 August 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The factual matrix of the case of the plaintiff before\r\nthe Trial Court is that the plaintiff and first defendant are the\r\nbrothers and sons of Kotalani Venkataraya Reddy and\r\nSmt. Seethamma. It is contended that, after the death of father\r\nof the plaintiff and the first defendant, they have succeeded the\r\njoint family and ancestral properties and jointly cultivating the\r\nsaid lands. The plaintiff was working as an Assistant Teacher in\r\nthe Education Department and his earnings had contributed the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">joint family and developed and purchased properties in the name\r\nof kartha, who is the first defendant herein, by contributing joint\r\nfamily funds. It is also the contention of the plaintiff that the\r\nplaintiff, first defendant and their mother Smt. Seethamma have\r\npurchased the property in the name of the first defendant, who\r\nis the kartha of the family in respect of land bearing Sy.No.82,\r\n3\r\nrd Block measuring 4 acres and land bearing Sy.No.82/4\r\nmeasuring 4 acres, totally 8 acres situated at Kamatampalli\r\nVillage, Ronur Hobli, Srinivaspura Taluk under the registered sale\r\ndeed dated 10.05.1968. The plaintiff and first defendant are in\r\njoint possession and enjoyment of the said land and the plaintiff\r\nis having definite share in the said land. It is also the case of\r\nthe plaintiff that both the plaintiff and defendants have jointly\r\npurchased the land bearing Sy.No.13 measuring 2 acres, 16\r\nguntas situated at Kannampalli Village, Kasaba Hobli,\r\nChinthamani Taluk, under the registered sale deed dated\r\n05.08.1991. It is also his case that, with an intention to form\r\nresidential layout in the land bearing Sy.No.13 measuring 2 acre,\r\n16 guntas situated at Kannampalli Village, Kasaba Hobli,\r\nChinthamani Taluk, obtained conversion of the land from </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">agricultural to non-agricultural residential purpose from the\r\nAssistant Commissioner, Chikkaballapura sub-division dated\r\n29.08.1992 and formed residential layout i.e., site Nos.1 to 62 in\r\ndifferent dimensions and the said layout has been approved by\r\nthe Secretary Chinnasandra Mandal Panchayath.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. Having heard the learned counsel for the petitioner\r\nand learned counsel for the respondent No.1 and considering the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">principles laid down in the judgments referred (supra) the points\r\nthat would arise for consideration of this Court are:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n(1) Whether the Trial Court committed an error in\r\ndismissing the application filed under Order 12,\r\nRule 6 of C.P.C and whether it requires\r\ninterference of this Court?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n(2) What order?</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(1)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\n 21. Having heard the respective counsel and also on\r\nperusal of the material available on record, it is not in dispute\r\nthat the plaintiff has filed the suit for the relief of partition\r\nclaiming half share in respect of the suit schedule properties,\r\nwherein he contend that he was working as an Assistant School\r\nTeacher and he contributed for the purchase of the property and\r\nthe defendant No.1 denies the same contending that there was\r\nno prohibition for the plaintiff to purchase the property in the\r\nname of the plaintiff and the defendant No.1 has also denied all\r\nthe other averments of the plaintiff in the written statement. It\r\nis also not in dispute that, earlier I.A.No.3 is filed under Order 7,\r\nRule 11(a) and (d) of C.P.C. seeking to reject the plaint and the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ame was dismissed since, the grounds urged in the earlier\r\napplication were also that no cause of action to file the suit and\r\nthe suit is barred by limitation and the said order was also\r\nchallenged and this Court confirmed the same in the civil\r\nrevision petition and there is no dispute to that effect.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. Having considered the principles laid down in the\r\njudgements referred (supra) by the learned counsel for the\r\npetitioner, no dispute with regard to the fact that the Court can\r\ninvoke Order 12, Rule 6 of C.P.C. and the same enables the\r\nparty to obtain speedy judgment as held in UTTAM SINGH\r\nDUGAL’s case by the Apex Court. The Division Bench of this\r\nCourt also, in K. VENKATAMMA’s case held that admissions in\r\npleadings are to be treated at a higher pedestal and are to be\r\naccepted as admission about the state of things. But, in the\r\ncase on hand, there is no pleading in the admission but, only in\r\nthe cross-examination, certain answers are elicited from the\r\nmouth of P.Ws.1 and 2. No doubt, in the case of benami\r\ntransaction, suit would not lie, in the judgment of the Apex Court\r\nin ANANTHA RAJU’s case referred by the learned counsel for\r\nthe petitioner, it is very clear that, when the documentary\r\nevidence is available on record under Sections 91 and 92 of the\r\nEvidence Act, the same would apply. The learned counsel for\r\nthe petitioner would contend that there is a partition deed and\r\nthe same is not disputed. But, the fact is that the Court has to\r\nlook into the averments of the plaint and also the written <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">statement and the pleadings in the plaint has been denied by the\r\ndefendant No.1 by filing the written statement. When such\r\nbeing the case, the Court has to look into the pleadings of the\r\nparties.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. Further, this Court would like to rely upon the\r\njudgment of the Apex Court quoted by the learned counsel for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respondent No.1 in S.M. ASIF’s case, wherein the Apex Court in\r\nPara No.9 of the judgment held as hereunder:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">“9. The words in Order XII Rule 6 CPC “may”\r\nand “make such order…” show that the power under\r\nOrder XII Rule 6 CPC is discretionary and cannot be\r\nclaimed as a matter of right. Judgment on admission\r\nis not a matter of right and rather is a matter of\r\ndiscretion of the Court. Where the defendants have\r\nraised objections which go to the root of the case, it\r\nwould not be appropriate to exercise the discretion\r\nunder Order XII Rule 6 CPC. The said rule is an\r\nenabling provision which confers discretion on the\r\nCourt in delivering a quick judgment on admission\r\nand to the extent of the claim admitted by one of the\r\nparties of his opponent’s claim. In the suit for\r\neviction filed by the respondent-landlord, appellanttenant has admitted the relationship of tenancy and\r\nthe period of lease agreement; but resisted\r\nrespondent-plaintiff’s claim by setting up a defence\r\nplea of agreement to sale and that he paid an\r\nadvance of Rs.82.50 lakhs, which of course is stoutly\r\ndenied by the respondent-landlord. The appellantdefendant also filed the suit for specific performance,\r\nwhich of course is contested by the respondentlandlord. When such issues arising between the</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">parties ought to be decided, mere admission of\r\nrelationship of landlord and tenant cannot be said to\r\nbe an unequivocal admission to decree the suit under\r\nOrder XII Rule 6 CPC.”</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. On reading the principles laid down by the Apex\r\nCourt in the judgment extracted (supra), it is clear that the\r\nCourt has to look into the scope and ambit of Order 12, Rule 6\r\nC.P.C. and in view of the judgment, it is very clear that power\r\nunder Order 12, Rule 6 of C.P.C. is discretionary and cannot be\r\nclaimed as a matter of right. The judgment on admission is a\r\nmatter of right and rather is a discretion of the Court. The Apex\r\nCourt also further observed that whether the defendants have\r\nraised objection which goes to the very root of the case, it would\r\nnot be appropriate to exercise the discretion under Order 12,\r\nRule 6 of C.P.C. It is also held that the said rule is an enabling\r\nprovision which confers discretion on the Court in delivering a\r\nquick judgment on admission and to the extent of the claim\r\nadmitted by one of the parties of his opponent’s claim. I have\r\nalready pointed out that, in the written statement filed by the\r\nfirst defendant, there is no admission. But, the first defendant <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dispute the very contention of the plaintiff and totally denied the\r\ncase of the plaintiff and only relied upon the evidence of P.Ws.1\r\nand 2 and answers elicited in the cross-examination.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. This Court also would like to rely upon the recent\r\njudgment of the Apex Court which has been relied upon by the\r\nlearned counsel for the respondent No.1 referred (supra) in\r\nHARI STEEL AND GENERAL INDUSTRIES LTD.’s case,\r\nwherein the Apex Court in Para No.37 of the judgment held as\r\nunder:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“37. In this case it is to be noted that the suit\r\nwas filed on 1.11.2006 and written statement was\r\nfiled on 25.01.2007 and the application under Order\r\nXII Rule 6 was filed on 9.2.2007. In year 2010\r\nissues and additional issues were framed and trial is\r\nalso commenced. In that view of the matter, there\r\nis no reason to pass the impugned order now for\r\ndecreeing the suit on claimed admissions, in exercise\r\nof power under Order XII Rule 6 of CPC at this stage.\r\nIn view of the serious factual disputes and the\r\ndefence of the appellants in the suit, it is not\r\npermissible for making roving enquiry for disposal of\r\nthe application filed under Order XII Rule 6 of CPC. <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">When the trial is already commenced, it is desirable\r\nto record findings on various contentions issues and\r\ndisputes in the suit on merits by appreciating\r\nevidence but at the same time there is no reason or\r\njustification to decree the suit at this stage. For the\r\naforesaid reasons, we are of the view that the\r\nimpugned judgment of the High Court cannot be\r\nsustained and is liable to be set aside on this ground\r\nalone.”\r\n</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 29. In the judgment of the Apex Court extracted supra,\r\nthe Court also taken note of the fact that suit was filed on\r\n1.11.2006 and written statement was filed on 25.01.2007 and\r\nthe application under Order XII Rule 6 was filed on 9.2.2007. In\r\nthe year 2010 issues and additional issues were framed and trial\r\nis also commenced and observed that, in that view of the\r\nmatter, there is no reason to pass the impugned order now for\r\ndecreeing the suit on claimed admissions, in exercise of power\r\nunder Order XII Rule 6 of CPC at this stage. In view of the\r\nserious factual disputes and the defence of the appellants in the\r\nsuit, it is not permissible for making roving enquiry for disposal\r\nof the application filed under Order XII Rule 6 of CPC. When the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">trial is already commenced, it is desirable to record findings on\r\nvarious contentions issues and disputes in the suit on merits by\r\nappreciating evidence but at the same time there is no reason or\r\njustification to decree the suit at this stage and held that, the\r\nimpugned judgment of the High Court cannot be sustained and is\r\nliable to be set aside on this ground alone.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 30. In the case on hand, no doubt, the plaintiff filed the\r\nsuit for the relief of partition in respect of two properties and\r\nalso admitted earlier partition, it is important to note that under\r\nwhat circumstances, earlier partition deed came into existence.\r\nThe plaintiff also contend that those two properties were left out\r\nand document came into existence at the instance of the first\r\ndefendant. These are the serious factual disputes, since the first\r\ndefendant also denied the same in the written statement which\r\nis already taken note by this Court while summing up the\r\ncontentions raised in the written statement. When such being\r\nthe case, the question of dismissing the suit taking note of the\r\nadmission which is elicited in the cross-examination of P.Ws.1\r\nand 2 cannot be done and serious factual disputes have to be </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">considered by the Trial Court while considering the matter on\r\nmerits.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">31. The Trial Court, while dismissing the application filed\r\nunder Order 12, Rule 6 of C.P.C., taken note of the fact that the\r\nfirst defendant has denied the categorical allegations made in\r\nthe plaint by filing the written statement which is observed in\r\nPara No.13 of the order of the Trial Court and also taken note of\r\nthe pleadings of the plaintiff in respect of purchase of item No.2\r\nof the suit schedule properties, wherein the plaintiff contend that\r\nhe was working as an Assistant Teacher and these are the\r\naspects which have to be considered by the Trial while\r\nconsidering the matter on merits. The Trial Court also taken\r\nnote of the fact that evidence has already been commenced and\r\ncross-examination of P.Ws.1 and 2 was completed and case was\r\nset down for cross-examination of D.W.1. The material also\r\ndiscloses that, instead of cross-examining D.W.1, present\r\napplication is filed under Order 12, Rule 6 C.P.C. and the same is\r\nobserved in Para No.14 of the order and taken note of the\r\nserious factual disputes between the parties and rightly comes to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the conclusion that it is not permissible for making roving inquiry\r\nthough the counsel for the petitioner contend that there is no\r\nneed of making any roving inquiry for disposal of the application.\r\nHence, I do not find any error committed by the Trial Court in\r\ndismissing the application filed under Order 12, Rule 6 of C.P.C.\r\nsince, the admission made by the witnesses has to be looked\r\ninto, in keeping the contentions of both the parties while\r\nconsidering the matter on merits and there are no unequivocal\r\nadmissions in respect of the issues involved between the parties.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">32. When there are several disputes with regard to\r\ncontents of the plaint and also the first defendant disputed the\r\nsame in the written statement and categorically denied the\r\ncontention of the plaintiff, the matter requires to be considered\r\non merits. Hence, I do not find any error committed by the Trial\r\nCourt in dismissing the application and the application is filed\r\nwhen the case was set down for cross-examination of D.W.1.\r\nThe Apex Court also in HARI STEEL AND GENERAL\r\nINDUSTRIES LTD’s case observed that when the trial has\r\nalready been commenced and when there are serious disputed </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">factual aspects, it is not permissible for making roving inquiry for\r\ndisposal of application under Order 12, Rule 6 of C.P.C. and\r\nmere admission on the document of partition deed cannot be\r\ntermed as categorical and unequivocal admission for delivering\r\njudgment on admission. Hence, there is no merit in the revision\r\npetition to set aside of the order of the Trial Court and the\r\nmatter requires to be considered on merits. Accordingly, I\r\nanswer Point No.(1) as ‘negative’</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Point No.(2)</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> The revision petition is dismissed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '50dc60b9610d8596b5f56a6eb1a921c5.JPG', 'f97337c569777bfb5464397ebda871cc.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-10', 1, '', '', '2023-08-09 13:52:26', '2023-08-10 03:20:46');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3316, 'EdQ5MCTPQqi2QJ6egWiIXbNQZ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Election Law. Non-disclosure or suppression of the assets of the candidate or his his/her spouse in his nomination amounts to corrupt practice. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Abida Begum Vs Mohd. Ismail and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 203232 of 2022 decided on 26 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The petitioner is before this Court seeking for the following relief:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>To set aside the judgment in Election Petition No.11/2021 passed by Senior Civil Judge &amp; JMFC, Shahapur, dated 31.10.2022 as per Annexure-D in the interest of justice and equity.&nbsp;<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. A notification was published by the respondent No.2 – Deputy Commissioner for election to the Gram&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Panchayath on 23.07.2020. The petitioner having contested was declared as elected candidate.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. On the basis of the submission made, the points that would arise for consideration are:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. Whether non-arraigning of all the candidates to an election in an election petition where a declaration of the petitioner to be a returned candidate is sought for would result in dismissal of the Election Petition in terms of Sub-section (1) of Section 17 read with clause (a) of Subsection (2) of Section 15 of the Panchayat Raj Act, 1993?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ii. Whether non-disclosure or suppression of the assets of the candidate in his nomination form or that of his/her spouse would amount to a corrupt practice requiring disqualification of the candidate or would it require for the petitioner in a Election Petition to establish that such suppression has resulted in an adverse impact favourable to the returned candidate in the elections?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>iii. Whether the verifying affidavit to all Election Petitions are required to be in Form-25 of Conduct of Election Rules, in terms of Rule 94-A of the Rules?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>iv. Whether the impugned order suffers from any legal infirmity requiring interference at the hands of this Court?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>v. What order?<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. Answer to Point No.(1): Whether non arraigning of all the candidates to an election in an election petition where a declaration of the petitioner to be a returned candidate is sought for would result in dismissal of the Election Petition in terms of Sub-section (1) of Section 17 read with clause (a) of Subsection (2) of Section 15 of the Panchayat Raj Act, 1993?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.1.The petitioner whose election has been declared void has contended that when an election petitioner apart from challenging the election of the returned candidate seeks for a declaration that the election petitioner is the winner in terms of Section 15(2)(a) of Panchayat Raj Act, all the contestants have to be made a party. In this regard, he has relied upon the decision of the Delhi High Court in Surinder Kumar’s case (supra) where the Hon\'ble Delhi High Court has&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">held that provision of Order VI Rule 17 or Order I Rule 10 of CPC cannot be invoked in an Election Petition to bring on record the material particulars which had been missed out and/or to bring on record additional parties, though required to be made parties had not been made parties to the Election Petition. Thus, submission is that neither an application under Order VI Rule 17 nor under Order I Rule 10 of CPC not being permissible in the event of necessary party not being made a party, the Election Petition is required to be dismissed.&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.6. A perusal of Sub-Section (4) of Section 86 of the RP Act indicates that any candidate not already made a respondent can make an application within 14 days from the date of commencement of trial for him to seek to be joined as respondent. Thus, Sub-Section (4) of Section 86 of the RP Act also does not permit the petitioner to implead another candidate as a&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">respondent after filing of the proceedings. The Hon\'ble Apex Court in the above decision has mandated by stating that in terms of Sub Section (1) of Section 86 of the RP Act, it is incumbent upon the High Court to dismiss an Election Petition which does not comply with the provisions of Sections 81 or Section 82 or Section 117 of the RP Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.8. Section 82 of the RP Act is relevant for the present matter and deals with parties to the petition. Section 82 mandates that where the petitioner in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner and when no such further&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">declaration is claimed, all the returned candidates are to be made parties.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10.9. Section 15(2)(a) of the Panchayat Raj Act, is in pari materia with Section 82(a) of the RP Act. Thus, the said mandate imposed upon by the Hon\'ble Apex Court in K.Venkateswara Rao’s case (supra) in terms of Section 82(a) of the RP Act would also equally apply to Section 15(2)(a) of the Panchayat Raj Act.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10.11.Thus, in the present matter, there being no dispute that relief of declaration of the election&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">petitioner as the returned candidate is sought for, the trial Court ought not to have eschewed the said relief by dismissing the relief on the ground that all the contesting candidates have not been made parties. The trial Court ought to have taken into consideration the mandate under Section 15(2)(a) of the Panchayat Raj Act and the mandate imposed by the Hon\'ble Apex Court in K. Venkateswara Rao\'s case (supra) and dismissed the petition in limine on the ground that all the contesting parties had not been made parties, even though the declaration of the petitioner as the returned candidate was sought for.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10.12.Hence, I answer point No.1 by holding that nonarraigning of all the candidates to an election in a Election Petition where a declaration of the petitioner to be a returned candidate is sought for would necessarily result in dismissal of the</span><span style=\"font-size: 12pt;\">&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Election Petition in terms of Sub-section (1) of Section 17 read with Clause (a) of Sub-section (2) of Section 15 of the Panchayat Raj Act. The said dismissal can be made by the Court trying the Election Petition suo motu or an application made by any of the respondents in the said proceedings.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. My answer to point No.2: Whether nondisclosure or suppression of the assets of the candidate in his nomination form or that of his/her spouse would amount to a corrupt practice requiring disqualification of the candidate or would it require for the petitioner in a Election Petition to establish that such suppression has resulted in an adverse impact favourable to the returned candidate in the elections?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11.5. The Hon\'ble Apex Court by referring to Union of India vs. Association for Democratic Reforms10 has also held that it was incumbent&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for the Election Commissioner to secure voters information pertaining to assets not only of the candidate but also the spouse and the dependant members. Therefore, in the present case, it was incumbent on the petitioner to have disclosed her assets, her husband’s assets and also other dependent members. Non- disclosure thereof is not in dispute would therefore amount to undue influence and corrupt practice.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>11.6. The Hon\'ble Apex Court in Rukmini Made Gowda’s case (supra) has also held that purity of election at all levels, be it election to the Union Parliament or a State Legislature or a Municipal Corporation, or Panchayat is of a national importance in which uniform policies are desirable in the interest of all the States and therefore, disclosure of assets has to be made of the candidate, spouse of the candidate and other dependent members.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11.7. It is not only suggestio falsi ie., suggesting of false information regarding the assets but also suppressio veri i.e., suppression of details relating to the assets which would be covered under Section 19 of the Panchayat Raj Act. That is to say suggestio falsi and suppressio veri of assets of the candidate, his or her spouse and dependent would come within the purview of Section 19 (1)(b) of the Panchayat Raj Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11.8. In that view of the matter, I answer point No.2 by holding that non-disclosure of assets or suppression of the assets of the candidate, or his or her spouse and dependent members would amount to corrupt practice requiring disqualification of the candidature and towards this end, there is no particular requirement for the election petitioner to specifically aver or prove that the suppression has resulted in adverse impact favourable to the returned&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">candidate in the election. The mere suppression is sufficient to invoke the provisions of Section 19(1)(b) of the Panchayat Raj Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. My Answer to Point No.3: Whether the verifying affidavit to all Election Petitions are required to be in Form-25 of Conduct of Election Rules, in terms of Rule 94-A of the Rules?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12.3. Rule 94-A of the Rules, 1961 which has been reproduced above indicates that the affidavit referred to in proviso to Sub-section (1) of Section 83 shall be sworn before a magistrate of the first class or a notary or a commissioner of oaths and shall be in Form-25. 12.4. Section 83 of the RP Act deals with contents of election petition and the proviso thereof requires an affidavit in the prescribed form in support of the allegation of such corrupt practice.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12.5. The prescribed form is Form-25, prescribed under Rule 94A of the Rules, 1961. The said form contains two distinct portions; first part as&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">regards averments made in the petition which are true to the knowledge of the deponent and the second part as regards that which are true to the information of the deponent.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12.9. A two judge bench of the Hon\'ble Apex Court in the case of A.Manju vs. Prajwal Revanna @ Prajwal R. and Others12 while reiterating the judgment of a three judge bench case in F.A.Sapa’s case (supra) has further held at paragraph 26 and 27 as under:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>26. However, we are not persuaded to agree with the conclusion arrived at by the High Court that the nonsubmission of Form 25 would lead to the dismissal of the election petition. We say so because, in our view, the observations made in Ponnala Lakshmaiah case [Ponnala Lakshmaiah v. Kommuri Pratap Reddy, (2012) 7 SCC 788] which have received the imprimatur of the three-Judge Bench in G.M. Siddeshwar case [G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776 :&nbsp;<span style=\"font-size: 12pt;\">(2013) 2 SCC (Civ) 715] appear not to have been appreciated in the correct perspective. In fact, G.M. Siddeshwar case [G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776 : (2013) 2 SCC (Civ) 715] has been cited by the learned Judge to dismiss the petition. If we look at the election petition, the prayer clause is followed by a verification. There is also a verifying affidavit in support of the election petition. Thus, factually it would not be appropriate to say that there is no affidavit in support of the petition, albeit not in Form 25. This was a curable defect and the learned Judge trying the election petition ought to have granted an opportunity to the appellant to file an affidavit in support of the petition in Form 25 in addition to the already existing affidavit filed with the election petition. In fact, a consideration of both the judgments of the Supreme Court referred to by the learned Judge i.e. Ponnala Lakshmaiah [Ponnala Lakshmaiah v. Kommuri Pratap Reddy, (2012) 7 SCC 788] as well as G.M. Siddeshwar [G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776 : (2013) 2 SCC (Civ) 715] , ought to have resulted in a conclusion that the correct ratio in view of these facts was to permit the appellant to cure this defect by filing an affidavit in the prescribed form. 27. The arguments of the learned counsel for Respondent 1 were predicated on the distinction between the absence of an affidavit and a defective affidavit. This presupposes that for an opportunity of cure to be granted, there must be the submission of a Form 25 affidavit which may be defective. This would be very narrow reading of the provisions. Once there is an affidavit, albeit not in Form 25, the appropriate course would be to permit an affidavit to be filed in Form 25. We have to appreciate that the petition is at a threshold stage. It is not as if the appellant has failed to cure the defect even on being pointed out so. This is not a case where the filing of an affidavit now in Form 25 would grant an opportunity for embellishment as is sought to be urged on behalf of Respondent 1.</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12.10.A reading of the above would indicate that if an objection is raised that the verifying affidavit is not in terms of Form-25 in that event, the Court ceased of the matter would have to provide an opportunity to the election petitioner to rectify the same, the defect being formal in nature cannot result in dismissal of the election petition.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12.15. In the present matter, I have come to a conclusion that the affidavit is in compliance of Form-25 and as such, Prajwal Revanna’s decision (supra) though not strictly applicable, if at all the respondent in the Election Petition&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">has raised this issue, the Court always could have permitted the petitioner to rectify it.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12.16.Hence, I answer point No.3 by holding that affidavit filed by the petitioner in Election Petition No.11/2021 is in due compliance with Rule 94A of the Rules, 1961, Form-25 thereof as also Section 83 of the RP Act</span><span style=\"font-size: 12pt;\">&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. Answer to Point No.4: Whether the impugned order suffers from any legal infirmity requiring interference at the hands of this Court?&nbsp;<br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13.2. In the present case, the petitioner having not only sought for setting aside the election of the respondent No.1 but also having sought for declaration that he is the returned candidate, it was but required that all the other contestants were to be made a party since it is only in their presence that any finding could be given as regards the election petitioner being a returned candidate. This aspect though would require further consideration by the Law Commission, since multiple candidates were contesting the elections, the declaration of the election petitioner as a returned candidate when votes are distributed among multiple candidates would be very difficult if not impossible, it is probably only when there are two candidates and election of one of the candidates being&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">declared void, the other candidate could be declared as returned candidate. Even if there are three candidates, the matter could be difficult inasmuch as it cannot be ascertained as to in whose favour the votes polled by the returning candidate would have to be apportioned.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13.4. I answer point No.4 by holding that the order passed by the trial Court refusing the relief of declaration of the election petitioner as returned candidate on the ground that other contestants were not made a party and continued with the matter is not in accordance with Section 15(2)(a) of the Act when all the contestants were not made a party and relief of declaration&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the Election Petition as returned candidate was sought for, the Election Petition ought to have been rejected in limine in terms of SubSection (1) of Section 17 of the Panchayat Raj Act.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. Answer to Point No.5: What order?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14.1.The writ petition is allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Also held<span style=\"font-size: 22pt; font-family: var(--bs-font-sans-serif);\">&nbsp;</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"></p><p class=\"MsoNormal\"><span style=\"font-size: 22pt; line-height: 33.7333px;\"><b>Election Law. Non-disclosure or suppression of the assets of the candidate or his his/her spouse in his nomination amounts to corrupt practice. Karnataka High Court.&nbsp;</b></span></p>', '299d68cd7deec18f06179c119ac18348.JPG', '1d8327b121ade046dfcc0d7d698f5fb2.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-09', 1, '', '', '2023-08-09 15:28:50', '2023-08-09 10:19:34'),
(3323, 'J8poU3HVoXkpielYP8lRs9lHc', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Proceeding under Section 138 NI Act before a particular Court when the transaction having happened in a different place is not maintainable. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Visveshwar Bhat Vs Vishwamitra Vishweshwar Hegde.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 104156 of 2022 decided on 1 August 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. The petitioner is before this Court calling in question the proceedings in C.C. No.631/2018 pendingo n the file of III-Addl. JMFC, Sirsi at Sirsi for the offence punishable under Section 138 of N.I. Act.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. Facts in brief germane are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner and the respondent have a transaction. Pursuant to the said transaction, the accused is said to have issued certain cheques to the complainant, which are dishonored. Presentation and dishonoring of the cheques happen at Hubballi. The complainant after the said dishonoring of the cheques at Hubballi registered the complaint invoking Section 200 of the Cr.P.C. before the Court at Sirsi. The Concerned Court takes cognizance of the offences and registers C.C. No.631/2018 for the offences punishable under Section 138 of the N.I. Act. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. The aforementioned facts lie in a narrow compass, the issue with regard to entertainment of the complaint and taking of cognizance by a Court at Sirsi notwithstanding the fact that the transaction having happened at Hubbali is not in dispute. The issue is therefore stands covered on all its fours to the judgment of the Hon’ble Apex Court in the case of Yogesh Upadhyay and Anr (Supra), wherein at paragraph Nos.5 to 14 has held as under:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“5. It is now well settled that the offence under Section 138 of the Act of 1881 is complete upon dishonour of the cheque but prosecution in relation to such offence is postponed, by virtue of the provisos therein, till the failure of the drawer of the cheque to make the payment within 15 days of receiving the demand notice. However, jurisdiction to try this offence remained a troublesome issue for a long time.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>6. In K. Bhaskaran Vs. Sankaran Vaidhyan Balan and another [(1999) 7 SCC 510], this Court held that an offence under Section 138 of the Act of 1881 has five components: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning of the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, and (5) failure of the drawer to make  <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">payment within 15 days of the receipt of the notice. It was further held that the Courts having jurisdiction over the territorial limits wherein any of the five acts, that constitute the components of the offence, occurred would have the jurisdiction to deal with the case and if the five acts were done in five different areas, any one of the Courts exercising jurisdiction in those five areas would have jurisdiction and the complainant could choose any one of those Courts.</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>7. Thereafter, in Dashrath Rupsingh Rathod Vs. State of Maharashtra and another [(2014) 9 SCC 129], a 3-Judges Bench of this Court observed that the return of the cheque by the drawee bank would alone constitute commission of the offence under Section 138 of the Act of 1881 and would indicate the place where the offence is committed. It was, therefore, held that the place, situs or venue of judicial inquiry and trial of the offence must logically be restricted to where the drawee bank is located, i.e., where the cheque is dishonoured upon presentation and not where the complainant’s bank is situated.</b></i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">8. In this regard, it may be noted that Section 142 of the Act of 1881, titled ‘Cognizance of Offences’, provided that, notwithstanding anything contained in the Code of Criminal Procedure, 1973, no Court shall take cognizance of an offence punishable under Section 138 except on a complaint in writing made by the payee or, as the case may be, the holder in due course of the cheque; such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138; and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try an offence punishable under Section 138.</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>9. Significantly, the aforestated original Section 142 of the Act of 1881 was renumbered as Section 142(1) when amendments were made in the Act of 1881 by the Negotiable Instruments (Amendment) Act, 2015 (Act 26 of 2015). Further, Section 142(2) was inserted in the statute book along with Section 142-A. The newly inserted Section 142(2), to the extent relevant, states that the offence under Section 138 shall be inquired into and tried only by a Court within whose local jurisdiction - (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated.</b></i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i><b>10. This being the statutory scheme, stress is laid by Mr. Chirag M. Shroff, learned counsel, upon the 6 words: ‘shall be inquired into and tried only by a Court within whose local jurisdiction……’in Section 142(2) to contend that the Courts at Nagpur would have exclusive jurisdiction in relation to the dishonoured cheques presented by the respondent company through its bank at Nagpur.</b></i></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">11. Perusal of the Statement of Objects and Reasons in Amendment Act 26 of 2015 makes it amply clear that insertion of Sections 142(2) and 142-A in the Act of 1881 was a direct consequence of the judgment of this Court in Dashrath Rupsingh Rathod (supra). Therefore, the use of the phrase: ‘shall be inquired into and tried only </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 142(2) of the Act 1881 is contextual to the ratio laid down in Dashrath Rupsingh Rathod (supra) to the contrary, whereby territorial jurisdiction to try an offence under Section 138 of the Act of 1881 vested in the Court having jurisdiction over the drawee bank and not the complainant’s bank where he had presented the cheque. Section 142(2) now makes it clear that the jurisdiction to try such an offence would vest only in 7 the Court within whose jurisdiction the branch of the Bank where the cheque was delivered for collection, through the account of the payee or holder in due course, is situated. The newly inserted Section 142-A further clarifies this position by validating the transfer of pending cases to the Courts conferred with such jurisdiction after the amendment.</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">12. The later decision of this Court in Bridgestone India Private Limited Vs. Inderpal Singh [(2016) 2 SCC 75] affirmed the legal position obtaining after the amendment of the Act of 1881 and endorsed that Section 142(2)(a) of the Act of 1881 vests jurisdiction for initiating proceedings for an offence under Section 138 in the Court where the cheque is delivered for collection, i.e., through an account in the branch of the bank where the payee or holder in due course maintains an account. This Court also affirmed that Dashrath Rupsingh Rathod (supra) would not non-suit the company in so far as territorial jurisdiction for initiating proceedings under Section 138 of the Act of 1881 was concerned.</span><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span lang=\"EN-US\">13. Therefore, institution of the first two complaint cases before the Courts at Nagpur is in keeping with the legal position obtaining now. However, the contention that the non obstante clause in Section 142(1) of the Act of 1881 would override Section 406 Cr.P.C. and that it would not be permissible for this Court to transfer the said complaint cases, in exercise of power thereunder, cannot be countenanced. It may be noted that the non obstante clause was there in the original Section 142 itself and was not introduced by way of the amendments in the year 2015, along with Section 142(2). The said clause merely has reference to the manner in which cognizance is to be taken in offences under Section 138 of the Act of 1881, as a departure has to be made from the usual procedure inasmuch as prosecution for the said offence stands postponed despite commission of the offence being complete upon dishonour of the cheque and it must necessarily be in terms of the procedure prescribed. The clause, therefore, has to be read and understood in the context and for the purpose it is used and it does not lend itself to the interpretation that Section 406 Cr.P.C. would stand excluded vis-à-vis offences under Section 138 of the Act of 1881. The power of this Court to transfer pending criminal proceedings under Section 406 Cr.P.C. does not stand abrogated thereby in respect of offences under Section 138 of the Act of 1881. It may be noted that this Court exercised power under Section 406 Cr.P.C. in relation to offences under Section 138 of the Act of 1881 even during the time the original Section 142 held the field. In A.E. Premanand Vs. Escorts Finance Ltd. & Others [(2004) 13 SCC 527], this Court took note of the fact that the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">offences therein, under Section 138 of the Act of 1881, had arisen out of one single transaction and found it appropriate and in the interest of justice that all such cases should be tried in one Court. We, therefore, hold that, notwithstanding the non obstante clause in Section 142(1) of the Act of 1881, the power of this Court to transfer criminal cases under Section 406 Cr.P.C. remains intact in relation to offences under Section 138 of the Act of 1881, if it is found expedient for the ends of justice.</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">14. In the case on hand, as the six complaint cases pertain to the same transaction, it would be advisable to have a common adjudication to obviate the possibility of contradictory findings being rendered in connection therewith by different Courts. As four of the six cases have been filed by the respondent company before the Dwarka Courts at New Delhi and only 10 two such cases are pending before the Courts at Nagpur, Maharashtra, it would be convenient and in the interest of all concerned, including the parties and their witnesses, that the cases be transferred to the Dwarka Courts at New Delhi.”</span><span style=\"font-size: 12pt;\"> </span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. In the light of the judgment rendered by the Apex Court and the issue akin to what the Apex Court has considered, the petition deserves to be succeed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The petition is allowed and the proceedings in C.C. No.631/2018 pending on the file of III-Addl. JMFC, Sirsi at Sirsi for the offence punishable under Section 138 of N.I. Act is quashed. </b></p>', 'f92118c0381b8162f096b376bcfe8a1d.jpeg', '230d47aec11e29ddc32194f512e55be7.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-11', 1, '', '', '2023-08-10 13:58:51', '2023-08-11 03:20:01');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3335, 'VsbGFAze5zHsxbp8uhudbl7bR', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Adopted son becomes a coparcener in the adoptor’s family and cannot claim right in his genitive family properties. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Bheesmaraja and others Vs Radhabai and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Regular Second Appeal 7198 of 2010 decided on 14 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice C M Joshi.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The facts that are necessary for the purpose of this second appeal are as below:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The undisputed facts are that the plaintiff, defendant Nos.5,6 and 7 and another Ashokraj are the genitive children born to defendant No.1 from the propositus Kamvar Elluru Pandurangappa. The defendant Nos. 2 to 4 are wife and children of deceased Ashokraj, who was the first son of defendant No.1 and Kamvar Elluru Pandurangappa. It is also an admitted fact that the father of the plaintiff, Elluru Pandurangappa died intestate on 27-12-2004. He left behind him the suit schedule A to D properties. It is also an admitted fact that Elluru Pandurangappa and his wife, the defendant No. 1, had executed an Adoption Deed in favour of P.Vishnu and P.Shantabai on 22-12-1974. But the plaintiff contends that the adoption is bad in law. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The plaintiff who is before this Court in second appeal contended that soon after the death of his father Ellur Pandurangappa, he demanded his 1/5th share in the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">suit properties and the defendants denied the same and as such, he was constrained to file the suit for partition. It was also stated that the defendants denied the share of the plaintiff contending that the plaintiff was given in an adoption to one P. Vishnu and his wife P. Shanthabai of Hyderabad. It was contended that the alleged adoption being in the year 1974, at which time, he was aged 24 years, the adoption was without his consent and was prohibited under the provisions of Sec.10 of Hindu Adoptions and Maintenance Act, 1956 ( \'the Act\' for brevity).</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. The defendant Nos.1, 5 to 7 resisted the said suit contending that the plaintiff was given in adoption to one P. Vishnu and P.Shanthabai of Hyderabad and though no ceremony could not be performed during the life time of P. Vishnu, the ceremony was performed later by P. Shanthabai under the instructions of her late husband. In pursuance to the factum of adoption, a Deed of Adoption <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">came to be registered on 22-12-1974, which was executed between the said P. Shantabai and Elluru Pandurangappa, with the defendant No.1 as consenting party. It was specifically contended that the plaintiff was aged 23 years at the time of the adoption and he was brought up by the adoptive father much prior to the date of Adoption Deed. It was also contended that in Vysya community, to which the parties belong to, adoption of a child beyond 15 years was valid in Hyderabad Karnataka Area, as per the prevailing customs. They also contended that the eldest son Ashokraj had separated from the family long back by taking his share and had gone out of the family. It was contended that after the demise of Elluru Pandurangappa, the defendant Nos. 1,6 and 7 were alone entitled to succeed to the suit schedule properties and as such, the suit is liable to be dismissed.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. At the time of admission, this Court has framed the substantial question of law on 23-4-2010 and it was recasted on 30-11-2011 as below:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\"Whether the Courts below were justified in negating the contentions of the appellant/plaintiff that Section 12(b) of the Hindu Adoption and Maintenance Act, 1956, can be pressed into service to claim share in the suit schedule properties?\" <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. On perusal of the appeal memo and on hearing the arguments, it is felt necessary that another substantial question of law needs to be considered. Hence the question of law as below is also considered by this Court:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\"Whether the courts below are justified in holding that adoption of the plaintiff, who was 23 years, is valid in view of the custom prevailing in Vysya Community? <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. The first aspect to be considered by this Court in furtherance of the substantial question of law is regarding the validity of the Adoption. The plaintiff contend that he was aged about more than 15 years as on the date of the alleged Adoption and therefore, the said Adoption is invalid. On the other hand, the defendants contend that there was a custom in the Vysya community and therefore, the Adoption is valid. It is not the case of the plaintiff that there was no such Deed of Adoption, for, he himself has produced the Adoption Deed at Ex.P8. Therefore, the question is only whether there was a custom in existence among the Vysya community to which the plaintiff and the defendants belong to. It is also to be noted at this juncture that the provisions of Sections 10 and 16 of the Act come into play. Sections 10 and 16 of the Act, read as below:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>\"10 provides that no person shall be capable of being taken in adoption unless four conditions are fulfilled viz. (i) he or she is a Hindu; (ii) he or she has not already been adopted; (iii) he or <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">she has not been married and; (iv) he or she has not completed the age of fifteen years. xxxxxx</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><i>16 Presumption as to registered documents relating to adoption. — Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.”</i></span><span style=\"font-size: 12pt;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. Thirdly, the custom of adoption of a person elder to 15 years, prevailing in Bombay Karnataka Area is recognised by various judicial pronouncements. It is also to be noted that Raichur District is adjoining the Bombay Karnataka area and there are several decisions which recognise the said custom of adoption of a person aged more than 15 years. The decision of the Apex Court in the case of Kondiba Rama Papal @ Shirke (dead) and another Vs. Narayan Kondiba Papal11 , recognises that there exists such custom in Bombay Karnataka Area. In the said decision, it was observed as below:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>\"At the time when the plaintiff was adopted he was about 22 years old, but even though there is a difference of opinion between various schools as to the age when a boy may be adopted, so far as he Bombay State is concerned the position is well settled in view of more than one judicial decision. As pointed out in Mulla\'s Hindu Law, 14th Edition at page 550 in the Bombay State a person may be adopted at any age though he may be older than the adopter and though he may be married and have children. The adoption is not invalid although it took place after the thread ceremony of the boy was performed. Thus the custom is judicially <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">recognised in the Bombay State as regards adoption of a child at any age. Once the custom is judicially recognised, it is not required to be independently proved in subsequent cases.</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">2. This observation of the High Court is well supported by a long line of decisions of that Court including the subsequent decision of the Full Bench of that Court in Anirudh Jagdeorao v. Babarao Irbaji, (AIR 1983 Bom 391). In the circumstances we see no reason to interfere with the impugned judgment..\"</span><span style=\"font-size: 12pt;\"><br></span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. The decision in the case of Anirudh Jagdeorao Vs. Babarao Irbaji and others13 also recognised that in this part of area, there is a custom which permits the adoption of the person aged more than 15 years. It was held that, when a custom is repeatedly brought to the notice of the Court, the Court may hold that the customs introduced into law without necessity of establishing it <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">each individual case. In the above decision, it is laid down as below:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\"The word \"rule\" in clause (a) of section 3 of the Hindu Adoptions and Maintenance Act refers to what is set out in clause (a) of section 4 namely to any text, rule or interpretation of Hindu Law or any custom or usage as part of that law. What is saved by section 4 is \"any custom or usage as a part of\" Hindu Law in force immediately before the commencement of Hindu Adoptions and Maintenance Act. The expressions \"custom\" and \"usage\" as defined in clause (a) of section 3 of the Hindu Adoptions and Maintenance Act include not only customs and usages in the ordinary sense which have obtained the force of law among Hindus in any local area, tribe, community, group or family but also texts, rules and interpretation of Hindu Law which have been continuously and uniformly observed and have obtained the force of law among Hindus in any local area, tribe, community, group or family. Hindus in Marathwada area in the erstwhile Nizam state of Hyderabad were governed by the Vyavahara Mayukha or what is known as the Bombay School of Hindu Law and not by the Mitakshara School. The Mayukha School of Hindu Law permitted a widow to take a boy of over 15 years of age in adoption as also a married person. Consequently adoption on the coming into force of the Hindu Adoptions and Maintenance Act in areas which were previously governed by the Mayukha School of Hindu Law</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">permits adoption of a married man over 15 years of age and such custom is covered by the expression as used in Section 3(a) read with section 4(a) of the said Act. Adoption of a such person is perfectly valid. 1978 Mh.LJ 127: AIR 1977 Bom 289 held correctly Decided. Second Appeal No. 1444 of 1965 Bhimrao v. Chandru Chawla by Malvankar J., 1977 Mh.LJ 68: AIR 1976 Bom 264 and AIR 1977 Bom 412, OVERRULED.\"</span></b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>26. Under these circumstances, the existence of the custom that a person aged more than 15 years may be adopted in this part of the area, particularly among the Vysya community has been recognised by the Courts and therefore, the conclusions reached by the Trial Court as <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">well as the First Appellate Court has to be upheld in this regard. Both the Courts below were right in holding that there exists a custom wherein, a person aged more than 15 years may be adopted among the Vysya Community. Therefore, the validity of the adoption has to be upheld.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. The second question that falls for consideration is, Whether Section 12(b) of the Hindu Adoptions and Maintenance Act can be invoked by the plaintiff to contend that much prior to the alleged adoption, the suit schedule properties had vested in him.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>31. It is relevant to note that the share of a coparcener in a family cannot be said to be vested interest, for the simple reason that such share varies on the birth and death of the other sharers in the family. If there was a partition prior to the adoption, it could be said that the plaintiff had a right vested in him and he had the rights to alienate such property. A vested right is a right independent of any contingency that could happen in the family. A vested right could not vary without the consent of such person. Admittedly, when the plaintiff was the coparcener of the family, he did not have an independent vested right in the suit schedule properties. His father Ellur Pandurangappa was the Manager of the family and therefore, it cannot be said that the suit schedule properties had vested with the plaintiff.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>32. The Commentary on Section 12(b) of the Hindu Adoptions and Maintenance Act, 1956 by Mulla, 22nd Edition, observes that, in cases governed by Mitakshara Law, there was some divergence of judicial opinion on certain aspects of the matter. Section 12(b) lays down the clear Rule that any property that might have vested in the adoptee before the adoption continues to vest in the adoptee, subject, of course to any obligations attaching to the ownership of such property, including the rights of maintenance. In other words, the adopted person is not, by fact of adoption, divested of any property which had already vested in him. As a corollary it follows that the Rule is that the fact of adoption should not operate to the prejudice of the persons related to the adoptee in the natural family, who had the right to claim maintenance. The proviso only says that the property vesting in adoptee before the adoption continues to vest in him post his adoption.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>33. This takes us to the concept of vesting of the rights. Such vesting of rights must be understood in the context of the nature of the property. In the case of separate property, it does not pose any difficulty, but in the context of the rights under the Hindu Law, it must be understood in the context of the joint rights contemplated under the joint family. The concept is peculiar when it is applied under Hindu Law. Under Hindu Law, no person can claim a particular fixed share in the property, his rights, which fluctuate with the births and deaths in the family.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>34. In the words of Privy Council, in the case of Appovier Vs. Rama Subba Aiyan, it was observed that “a member of the joint Mitakshara family cannot predicate at any given moment what his share in the joint family is. His share becomes defined only when a partition takes place.” Therefore, when we see the vesting of the rights in the light of the above context of Hindu Law, it become clear that the vesting of the rights has to be given a meaning of crystallising a person’s share in the property</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">A fluctuating interest in the property cannot be construed to be vesting of the property in a person.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>36. In the case of Vasant and another Vs. Dattu and others19 the Supreme Court observed as below:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><i><b>4. We are concerned with proviso (c) to S.12. The introduction of a member into a joint family, by birth or adoption, may have the effect of decreasing the share of the rest of the members of the joint family, but it certainly does not involve any question of divesting any person of any estate vested in him. The joint family continues to hold the estate, but, with more members than before. There is no fresh vesting or divesting of the estate in anyone. 5. The learned Counsel for the appellants urged that on the death of a member of a joint family the property must be considered to have vested in the remaining members by survivorship. It is not possible to agree with this argument. The property, no doubt passes by survivorship, but there is no question of any vesting or divesting in the sense contemplated by S.12 of the Act. To interpret S.12 to include cases of devolution by survivorship on the death of a member of the joint family would be to deny any practical effect to the adoption made by the widow of a member of the joint family. We do not think that such a result was in the contemplation of Parliament at all.\"</b></i></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>37. Later, a Division Bench of this Court in the case of T. Rathan and others vs. Chikkamuth20, has relied on a decision of the Bombay High Court in the case of Devgonda Raygonda Patil Since deceased by his heir Hirabai Devgonda Patil vs. Shamgonda Raygonda Patil since deceased by his heirs Trishala Shambonda Patil and others21 and held that if there is coparcenary or joint family in existence in the family of birth on the date of adoption then the adoptee cannot be said to have any vested property. Subsequently, this Court in the case of M. Krishna Vs. M. Ramachandra and another22 has also reiterated the view that if the adoptee was the member of the joint family at the time of adoption, his rights in the joint family property extinguish unless, he possessed those properties by way of partition. It was observed that on adoption the adoptee gets transplanted in a family in which he is adopted with the same rights as that of a natural born son and as such, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">transfer of the adopted child severs all his right with the family from which he was taken in adoption. It was categorically held that, he loses right of succession in the genitive family properties.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">38. There are umpteen number of decisions, namely, Jupudi Venkata Vijayabhaskar vs. Jupudi Keshava Rao23 , Dharma Shamrao Agalawe Vs. Pandurang Miragu Agalawe24 etc., which laid down that after adoption the adoptee become a coparcener in the adoptor’s family. If we accept the contention of the learned counsel for the appellant herein, it would lead to a situation whereby an adopted son would continue to be exercising rights as a coparcener in the genitive family as well as the adoptive family. Therefore, this contention at any rate cannot hold good. Therefore, when the decision of the Apex Court in Vasant and another Vs. Dattu\'s case has clarified the matter, and when the Shastric Law </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">also do not approve the rights of a adopted person in the genitive family, the views of the Andhra Pradesh High Court in Yarlagadda Nayadamma\'s case cannot bind this Court to hold that the plaintiff is entitled for rights in the suit schedule properties of the coparcenary, regarding which he had ceased to be member. According to the Mitákshará law, a son acquires by birth a right to the ancestral property in the possession of the father, and an undivided coparcenery interest is vested in him as a member of the ‘family corporation’. The vesting, however, is imperfect as the interest is liable to variation and also to extinction by reason of any subsequent disqualification. The interest is acquired in the character of a member of the family, and when that character is lost by adoption, the interest also ceases.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">39. For aforesaid reasons, this Court comes to the conclusion that the adoption of the plaintiff to the family of P. Vishnu and P. Shanthabai is valid and that the plaintiff</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cannot take shelter under Section 12(b) of the Act, to claim share in the suit schedule properties. The substantial questions of law raised are answered accordingly.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>40. In the result, the appeal fails and hence, it is dismissed.</b></span></p>', '353b3f538795bbb6d3eb84d49e09b2e2.jpeg', '1d686f9efc8d65931e019898d045e1ce.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-16', 1, '', '', '2023-08-15 17:18:02', '2023-08-16 03:19:25'),
(3326, '0LVZn0rgkUrSMQYO99nrs00qH', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Sufficiency of cause for wife to live separately from husband cannot be gone into in a proceeding under Section 125 Cr.P.C. Negligence or refusal by husband to maintain is sufficient. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Renuka and others Vs Venkatesh.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Rev. PET Family Court 100033 of 2020 decided on 31 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice C.M. Poonacha.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The relevant facts necessary for consideration\r\nof the present petition are that the marriage between the\r\npetitioner No.1 and the respondent was solemnized on\r\n23.11.2009 and the petitioners No.2 and 3 are the children\r\nfrom the said wedlock. The petitioners instituted a\r\npetition under Section 125 of Code of Criminal Procedure, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1973 (hereinafter referred to as ‘Cr.P.C.’) seeking\r\nmaintenance from the respondent. The said proceedings\r\nwas contested by the respondent. The family Court by\r\norder dated 14.11.2018 dismissed the petition filed by the\r\npetitioners holding, inter alia, that PW-1 had not placed\r\nmaterial on record to demonstrate that she was willing to\r\njoin the respondent in the matrimonial home; and that the\r\npetitioners had not placed any material to demonstrate\r\nthat the respondent had willfully neglected to maintain the\r\npetitioners.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>6. Section 125 of Cr.P.C. reads as follows:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>125. Order for maintenance of wives,\r\nchildren and parents.—</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i> (1) If any person having\r\nsufficient means neglects or refuses to maintain—\r\n (a) xxx\r\n (b) xxx\r\n (c) xxx\r\n (d) xxx</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>a Magistrate of the first class may, upon proof of\r\nsuch neglect or refusal, order such person to make a\r\nmonthly allowance for the maintenance of his wife or\r\nsuch child, father or mother, at such monthly rate,\r\nas such Magistrate thinks fit, and to pay the same to\r\nsuch person as the Magistrate may from time to\r\ntime direct: </i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>7. It is clear from a plain reading of Section 125 of\r\nthe Cr.P.C. that a person is entitled to initiate proceedings\r\nif they demonstrate any of the aspects stipulated therein\r\ni.e. neglects or refusal to maintain.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. It is clear from a clean reading of Section 125 of\r\nCr.P.C., that the proceedings are summary in nature and it\r\nis sufficient if negligence or refusal on the part of the\r\nhusband in providing maintenance to the wife is\r\ndemonstrated. The proceedings do not contemplate the\r\nproof regarding sufficient cause for living separately.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. In the present case, the matrimonial\r\nrelationship between the petitioner and the respondent\r\nNo.1 is undisputed as also the fact that, the petitioner\r\nNos.2 and 3 are their children. No doubt, various\r\nallegations and counter allegations have been made by the\r\npetitioners and the respondent with regard to the reason\r\nfor them to be living separately.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>11. In the present proceedings, having regard to\r\nthe statutory stipulation contained under Section 125 of\r\nCr.P.C., it is beyond the scope of the same to go into the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">various allegations and counter allegations and record a\r\nfinding regarding the same.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>13. The reasons for the petitioners not to be living\r\nalong with the respondent cannot be adjudicated, in the\r\npresent proceedings and a finding to be recorded\r\nregarding the same. As long as the relationship between\r\nthe petitioners and the respondent being undisputed and\r\nas long as the petitioners do not live /reside along with the\r\nrespondent, the said aspect is sufficient to attract <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">tatutory stipulation contained under Section 125 of\r\nCr.P.C.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>14. An order passed in an application under Section\r\n125 of Cr.P.C. does not finally determine the rights and\r\nobligations of the parties and the said section is enacted\r\nwith a view to provide a summary remedy for providing\r\nmaintenance to a wife, children and parents (Dwarika\r\nPrasad Satpathy Vs. Bidyut Prava Dixit ).\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>15. The Hon’ble Supreme Court in the case of\r\nRajanesh Vs. Neha and another has held as follows:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">32. Chapter IX of the Code of Criminal\r\nProcedure, 1973 provides for maintenance of wife,\r\nchildren and parents in a summary proceeding.\r\nMaintenance under Section 125 CrPC may be claimed\r\nby a person irrespective of the religious community\r\nto which they belong. The purpose and object of\r\nSection 125 CrPC is to provide immediate relief to an\r\napplicant. An application under Section 125 CrPC is\r\npredicated on two conditions: (i) the husband has\r\nsufficient means; and (ii) “neglects” to maintain his</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">wife, who is unable to maintain herself. In such a\r\ncase, the husband may be directed by the Magistrate\r\nto pay such monthly sum to the wife, as deemed fit.\r\nMaintenance is awarded on the basis of the financial\r\ncapacity of the husband and other relevant factors.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>33. The remedy provided by Section 125 is\r\nsummary in nature, and the substantive disputes\r\nwith respect to dissolution of marriage can be\r\ndetermined by a civil court/Family Court in an\r\nappropriate proceeding, such as the Hindu Marriage\r\nAct, 1956.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. Having regard to the same, there is no\r\nrequirement for the Court to record a finding as to the\r\nsufficiency of cause for the wife to live separately from the\r\nhusband. The said aspects would be subject matter of\r\nconsideration in proceedings initiated under the relevant\r\nstatutes where the validity/status of the parties in the\r\nmatrimonial relationship are sought to be adjudicated. In\r\nview of the same, the finding recorded by the family Court\r\nthat the wife is staying separately from the husband\r\nwithout any sufficient cause is erroneous, is liable to be\r\ninterfered with.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. In that view of the matter, the above finding of\r\nthe family Court is liable to be set aside and the family\r\nCourt is required to adjudicate the claim of the parties on\r\nmerits, to adjudicate regarding quantum of maintenance\r\npayable.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>\r\ni) The above petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '96b7ff7a974e0837ea7e8a15ac1acaab.JPG', 'a5ee5891d20b27993e2e1d9206f65b6f.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-11', 1, '', '', '2023-08-10 14:34:18', '2023-08-11 08:09:05');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3322, 'sNd3VcSmVBeKkyTFwSNhgdheJ', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Perfection of title over Government land by adverse possession requires to be considered more seriously since it involves destruction of right/title of the State and conferring title upon a third-party encroacher where he had none. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Government of Kerala and another Vs Joseph and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 3142 of 2010 decided on 9 August 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Abhay S. Oka and Justice Sanjay Karol.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. This appeal assails a judgement and order passed by the High Court of Kerala dated 5th August, 2009 in Second Appeal No.740 of 1995 by which the findings returned in the First Appeal dated 3rd April, 1995, by the District Judge, Thodupuzha, in Appeal Suit No. 3 of 1991 were overturned and the land, subject matter of dispute, was stated to be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">rightfully belonging to the Respondents herein, namely Joseph, by virtue of the principle of adverse possession.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The property, subject matter of dispute, measures 30 cents bearing survey Nos.545/7/1, 545/8A2 and 545/8B3 of Kudayathoor village. The said property is stated to be Government Puramboke land. Such fact appears to be undisputed. The case put forward by the respondents, (claimants of adverse possession)1 against which the present appeal stands filed, is that Joseph had acquired title to the land of which he had been in possession and in continued enjoyment of, since 1940.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The question, the Court in its wisdom framed for its consideration was whether the plaintiffs (respondents herein) had made out a case for declaration and injunction and whether the decree passed by the Court below was sustainable or not.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>7. In deciding the present dispute, this Court must examine the same from two angles. One, whether the Judgement impugned, arising out of Second Appeal meets the established criteria for Second Appeal or not?; and two, whether the respondents herein are entitled to the relief of adverse possession or is the claim so made, barred by the Kerala Land Conservancy Act, 1957?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. For an appeal to be maintainable under Section 100, Code of Civil Procedure (‘CPC’, for brevity) it must fulfil certain wellestablished requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court. We may only refer to Santosh Hazari v. Purushottam Tiwari (three-Judge Bench) wherein this Court observed as follows :</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“12. The phrase “substantial question of law”, as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying “question of law”, means — of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with — technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. </b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be “substantial” a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law “involving in the case” there must be first <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.”</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>14. It is contended by the State that a question of adverse possession does not arise, on two grounds – one, that the land is undisputedly Government land and two, that the respondents had possession of such land only for a period of 15 years which is less than required period of 30 years, after which adverse possession could be claimed against the State. Further, it is submitted that Section 20 of the Act bars any suit or other legal proceedings against the Government in respect of any action taken by it under this Act in respect of unauthorised occupation of land, and, since the notice which initiated the present proceedings under the instant act, the proceedings that it gave rise to, were barred by law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21.3 Mere possession over a property for a long period of time does not grant the right of adverse possession on its own; (a) In Gaya Prasad Dikshit v. Dr. Nirmal Chander and Anr. (two-Judge Bench) 16, this court observed-</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>“1… It is not merely unauthorised possession on termination of his licence that enables the licensee to claim title by adverse possession but there must be some overt act on the part of the licensee to show that he is claiming adverse title. It is possible that the licensor may not file an action for the purpose of recovering possession of the premises from the licensee after terminating his licence but that by itself cannot enable the licensee to claim title by adverse possession. There must be some overt act on the part of the licensee indicating assertion of hostile title. Mere continuance of unauthorised possession even for a period of more than 12 years is not enough.”</i><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21.4 Such clear and continuous possession must be accompanied by animus possidendi - the intention to possess or in other words, the intention to dispossess the rightful owner;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(a) The case of Annakili v. A. Vedanayagam (two-Judge Bench) also shed light on this principle as under -</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>“24. Claim by adverse possession has two elements: (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well-settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession…”</i><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>d) It was also held in the case of Chatti Konati Rao v. Palle Venkata Subba Rao (two-Judge Bench) -</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed…”<br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>22. In the instant facts, for the respondents to be granted the enjoyment of the disputed property, clear, continuous and hostile possession would have to be established by way of cogent evidence and the animus possidendi must be demonstrated. We now proceed to examine whether these requirements are met with in the present case.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>23. Here, we are concerned with the respondents staking claim on property which undisputedly belongs to the state. Keeping in view the principles hitherto reproduced, we may once again, with benefit, refer to Harphool Singh (supra), this Court observed :</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none. The decision in P. Lakshmi Reddy v. L. Lakshmi Reddy [AIR 1957 SC 314 : 1957 SCR 195] adverted to the ordinary classical requirement — that it should be nec vi, nec clam, nec precario — that is the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus. In the decision reported in Secy. of State for India in Council v. Debendra Lal Khan [(1933) 61 IA 78 : 1934 All LJ 153 (PC)] strongly relied on for the respondents, the Court laid down further that it is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running, ought if he exercises due vigilance, to be aware of what is happening and if the rights of the Crown have been openly usurped it cannot be heard to plead that the fact was not brought to its notice. In Annasaheb Bapusaheb Patil v. Balwant [(1995) 2 SCC 543 : AIR 1995 SC 895] it was observed that a claim of adverse possession being a hostile assertion involving expressly or impliedly in denial of title of the true owner, the burden is always on the person who asserts such a claim to prove by clear and unequivocal evidence that his possession was hostile to the real owner and in deciding such claim, the courts must <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">have regard to the animus of the person doing those acts.”</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>28. In first appeal, the Court noted that no independent commission, or verification had been carried out of the age of the trees on the basis of which possession was being calculated. In view of this uncontroverted position, whether the standard of proof as held by this Court in Harphool Singh (supra) in no uncertain terms -</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>“When the property was a vacant land before the alleged construction was put up, to show open and hostile possession which could alone in law constitute adverse to the State, in this case, some concrete details of the nature of occupation with proper proof thereof would be absolutely necessary and mere vague assertions cannot by themselves be a substitute for such concrete proof required of open and hostile possession.”<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>cannot be termed as met. An estimation of age of the trees cannot be, by any stretch, termed as sufficient proof <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">required to disturb the title that undisputedly rests with the Government as also testified by PW-1 and PW-2. Proper and concrete proof as required would need for the claimants to show some proof of possession, other than statements which may be vague. It is also clear from the above discussion that merely a long period of possession, does not translate into the right of adverse possession. Surmises, conjectures and approximations cannot serve the basis for taking away the right over land resting with the State and place the said bundle of rights in the hands of one who did not have any such rights.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>29. It is a matter of record that proceedings of ejectment of the claimant stood initiated before the concerned Tehsildar in which claimant neither pleaded nor claimed title by way of adverse possession. To the contrary, the unauthorised occupation was not disputed, with the only plea being taken of having planted certain trees (rubber trees), put to use for rubber tapping.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">30. It is also a matter on record that such proceedings stood concluded by the appropriate authority (Tehsildar). By order dated 24th February, 1982 the appropriate authority </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(Tehsildar) had passed an order directing the claimant to not only vacate the land but also to pay compensation amounting to Rs. 354/-; these facts were never referred to in the plaint.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>34. Their testimonies only establish plaintiffs/claimants’ possession and having put the land to use for planting trees though with a variation of period, i.e., about 15 to 40 years. Be that as it may, it has come on record with some variations that the rubber trees were planted just about 15 to 18 years prior to the date on which the depositions were recorded.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>35. On oath, in a specific query put to PW 1 as to whether there is no record to establish suit the property to be in their possession from the year 1940 onwards, there is a categorical denial. Equally the witness denies having any proof of residing in the property, since 1940, adjacent to the property subject matter of the suit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>36. All that it is stated is that the property was being enjoyed, assuming the same to be theirs.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>37. It is in this view of the matter, we find that the findings returned by the High Court holding the witnesses, more particularly PW1 to PW5 to have established the claimants’ claims by way of adverse possession to be erroneous.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>38. In view of the above, the appeal is allowed. </b></span></p>', '345d63c6a3360c53e767c5775f9cb096.jpeg', '0ddd7d09a740b0ba73d208c64b3a8020.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-11', 1, '', '', '2023-08-10 13:57:34', '2023-08-11 06:27:40'),
(3321, '3D9gJEb36c2miiWNJiMS2EMKa', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Parties to an agreement choosing jurisdiction of a particular court and waiving objection to such venue cannot sue before any other Court. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M/S Vittal Cashew Industries and others Vs Tropical Industries International Pvt Ltd and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 9481 of 2022 decided on 27 June 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.R. Krishna Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The material on record discloses that the respondents – plaintiffs instituted the aforesaid suit against the petitionersdefendants for recovery of a sum of Rs.15,29,886.64/- and for other reliefs. The said suit was filed by the plaintiffs as a summary suit by invoking the provisions contained in Order 37 CPC. The petitioners who are arrayed as defendants entered appearance in&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the suit, pursuant to which, plaintiffs filed an application I.A.1 under Order 37 Rule 3(4) CPC seeking passing of summary judgment in their favour against the defendants. The petitioners – defendants filed their objections / counter affidavit and also sought for leave to defend. By the impugned order, the commercial court refused to grant leave to defend in favour of the petitioners and allowed I.A.No.1 and directed passing of summary judgment in favour of the plaintiffs. Aggrieved by the impugned order, petitioners are before this Court by way of the present petition.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. The undisputed material on record discloses that a Settlement Agreement dated 29.04.2019 was entered into between&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the petitioners and the respondents, in which, both parties had agreed as per clause 7.2 of the agreement that any dispute controversy or disagreement between the parties shall be subject to the jurisdiction of the courts only at New Delhi. The said clause 7.2 reads as under:-</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>“Any dispute, controversy or disagreement between the Parties arising out of or in connection with this Agreement shall be subject to the jurisdiction of the courts at New Delhi. The parties irrevocably waive any objection to venue in these courts and any objection based on the doctrine of forum non conveniens or similar grounds that these courts are inconvenient for determination of a dispute”.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">9. As can be seen from the aforesaid clause 7.2, both parties have unequivocally agreed that any dispute, controversy or disagreement between them arising out of or in connection with the Agreement shall be subject to the jurisdiction of the courts at New Delhi and both parties had irrevocably waived any objection to New Delhi being the venue on any ground whatsoever. Further, the cause title to the plaint indicates that while plaintiff No.1 is situated at New Delhi, plaintiff No.2 is at Dubai, UAE, the 1 st defendant is at Mangaluru and 2nd defendant is at Kasargod and accordingly, out of the four parties to the suit, only 1st defendant is at Mangaluru&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">within the jurisdiction of the commercial court. The material on record also reveals that apart from the fact that all payments and liabilities towards the subject transactions were between New Delhi, Dubai and Kasargod, the email correspondence by the plaintiffs originated from New Delhi and Dubai where plaintiff nos. 1 and 2 are situated respectively. So also, the legal notice dated 17.12.2020 was issued from New Delhi by the respondents to the petitioners and the same has been referred to in the plaint also by the respondents. It is therefore clear that the cause of action for the suit arose in and from New Delhi and in view of clause 7.2 whereby the parties agreed to confer exclusive territorial jurisdiction upon the courts at New Delhi, the commercial court at Mangaluru did not have territorial jurisdiction to entertain or adjudicate upon the suit, which was within the exclusive territorial jurisdiction of the courts at New Delhi and not before the commercial court at Mangaluru.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. As stated supra, the cumulative effect of the undisputed material on record, in particular, paragraph-22 of the plaint, wherein the plaintiffs have specifically referred to the cause of action to file the suit having arisen on account of the legal notice dated&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">17.12.2020 issued by them prior to institution of the suit which was issued from New Delhi as well as the email correspondence by the authorized persons on behalf of the plaintiffs from their office at New Delhi and other undisputed documents lead to the inescapable conclusion that a part / portion of the cause of action had clearly arisen at New Delhi. Consequently, in the light of clause 7.2 of the Settlement Agreement entered into between the parties on 29.04.2019, wherein both parties had unequivocally agreed that any dispute, controversy or disagreement between them arising out of or in connection with the Agreement shall be subject to the jurisdiction of the courts at New Delhi and both parties had irrevocably waived any objection to New Delhi being the venue on any ground whatsoever as can be seen from clause 7.2 supra, I am of the considered opinion that it is the courts at New Delhi alone that have exclusive territorial jurisdiction to entertain and adjudicate upon the dispute between the parties. Under these circumstances, it is clear that the commercial court at Mangaluru where the instant suit is pending does not have territorial jurisdiction to entertain or adjudicate upon the suit or dispute between the parties which would necessarily have to be decided by the courts at New Delhi and as such, the plaint in the - 1&nbsp;</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">instant suit deserves to be returned back to the respondents – plaintiffs for re-presentation before the jurisdictional courts at New Delhi and necessary directions are to be issued in this regard.</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Petition is hereby allowed.&nbsp;</b></p>', 'c36de343d575129ebe9698a75d9a4c84.JPG', '74cc88783e265baaac9eb607c32324f8.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-10', 1, '', '', '2023-08-10 13:36:39', '2023-08-10 13:36:39');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3336, 'hW9O6XJVFCSPGWIMrJqANzZcA', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Road Transport Corporation. Section 33 (2) (b) of the Industrial Disputes Act is required to be complied with only if punishment of discharge or dismissal is made and not in respect of other punishments. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Girish Vs The Karnataka State Road Transportation Corporation and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 207355 of 2017 decided on 13 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>1. In all the above matters, the petitioners - workmen are aggrieved by the disciplinary proceedings taken up by the respondent - Road Transport Corporation, by virtue of which, the workmen have either been dismissed from service or punishment lesser than dismissal have been awarded. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>18. The points that would arise for consideration are:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1)Whether, in view of the decision in Pandavapura Sahakara Sakkare Kharkhane Limited vs. Presiding Officer Additional Industrial Tribunal , there is a requirement for the State to have issued a specific notification under Section 13B of the Industrial Employment (Standing Orders) Act, 1946 in respect of conduct and discipline of the workmen of the Road Transport Corporations so as to exempt the applicability of the Industrial Employment (Standing Orders) Act, 1946 to them and make the Karnataka State Road Transport Corporation Servants (Conduct and Discipline) Regulations, 1971 applicable?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2)Whether compliance with proviso to Clause (b) of sub-section (2) of Section 33 of Industrial Disputes Act was required to be made for imposition of punishment, including dismissal in respect of some of the petitioners in the above matters?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3)Whether the word ‘authority’ occurring in sub-regulation (2) of regulation 23 of the Karnataka State Road Transport Corporation Servants (Conduct & Discipline) Regulations, <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1971 would require a person who is in the employment of the RTC to be appointed as an Enquiry Officer or could third parties be appointed as Enquiry Officers?</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">4)What order?</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. Answer to Point No.1: Whether, in view of the decision in Pandavapura Sahakara Sakkare Kharkhane Limited vs. Presiding Officer Additional Industrial Tribunal6 , there is a requirement for the State to have issued a specific notification under Section 13B of the Industrial Employment (Standing Orders) Act, 1946 in respect of conduct and discipline of the workmen of the Road Transport Corporations so as to exempt the applicability of the Industrial Employment (Standing Orders) Act, 1946 to them and make the Karnataka State Road Transport Corporation Servants (Conduct and Discipline) Regulations, 1971 applicable?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">20.1.The submission of Sri.Vilaskumar learned Senior Counsel appearing for the petitioner is that post the decision of the Full Bench of this Court in Pandavapura\'s case, unless there is a </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">notification issued under Section 13-B of Standing Orders Act, the C & D Regulations of the RTC cannot be pressed into service. There cannot be any dispute with regard to the general proposition that post the decision in Pandavpura\'s case for any industrial establishment to be exempted from the applicability of Standing Orders Act, a specific notification has to be issued under Section 13-B of Standing Orders Act. However, insofar as the RTCs are concerned, when this issue came up before a Division Bench of this Court in Muniswamy\'s case supra, the Division Bench of this Court dealt with all the contentions which have been advanced by Shri.P.Vilas Kumar in the present matter and many others and came to a conclusion that there being a practice at the KSRTC from the year 1971 to follow the C & D Regulation 1971 dehors the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Standing Orders Act. The said practice has to be accepted and despite the Full Bench having overruled the decision in KVR Shetty’s case declared that the KSRTC Servants (Conduct and Discipline) Regulations, 1971, would govern the service conditions of all the employees of the Corporation, including the appellants therein.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20.4.A further submission in this regard made by Sri.Vilaskumar, learned Senior Counsel is that the decision in Muniswamy’s case could at the most apply to KSRTC and not to NEKRTC or NWKRTC since they have come into being subsequent to the decision in Muniswamy’s case. I am afraid that distinction which is sought to be made out though innovative cannot be accepted inasmuch as what Muniswamy\'s case held is that the C & D regulation would apply to the employees of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">KSRTC. The NEKRTC and NWKRTC having been formed out of KSRTC and the employees of KSRTC having been transferred to NEKRTC and NWKRTC and they having adopted the KSRTC (C & D) Regulations 1971, those Regulations being one and the same for KSRTC, NEKRTC and NWKRTC, the decision on Muniswamy’s case would be equally applicable to NEKRTC and NWKRTC, and the declaration made therein would also apply to them. Thus, the main submission and the sub submission made in this regard are liable to be rejected.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">20.5.Therefore, I answer Point No.1 by holding that despite the decision of the Full Bench of this Court in Pandavapura\'s case, in view of a declaration made by a Division Bench of this Court in Muniswamy Gowda\'s case, it would be the KSRTC Servants (Conduct and Discipline) Regulations 1971, which will apply to a</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">ll the employees of the RTC’s (including KSRTC, NEKRTC and NWKRTC) and the Standing Orders Act would not be applicable despite there being no specific notification under Section 13-B of the Standing Orders Act.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>21. Answer to Point No.2: Whether compliance with proviso to Clause (b) of sub-section (2) of Section 33 of Industrial Disputes Act was required to be made for imposition of punishment, including dismissal in respect of some of the petitioners in the above matters?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>21.2.Sub-section (2) of Section 33 of I.D.Act is reproduced hereunder for easy reference.</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute 3 [or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman],—</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><i>(b) for any misconduct not connected with the dispute, or discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. </i><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">21.3.A perusal of the above would indicate that in terms of the proviso, it is only in the event of there being a discharge or dismissal of a workman that permission is required to be </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">obtained from the Court seized of the industrial dispute. Apart from discharge or dismissal, if any other punishment is levied/imposed, then no such permission is required to be obtained. In the present batch of matters, it is not in all of them that the workman has been dismissed from service. The workmen have been dismissed from service only in WP No.200010/2014 and WP No.203006/2014. Thus, it is only in those cases that such permission was required to be obtained and compliance with the proviso to Clause-B of subsection (2) of Section 33 of I.D.Act is required to be made. Thus, as held by the Hon’ble Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd’s case, the sanction not having been obtained, dismissal would be non-est and is required to be set aside.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21.4.I answer Point No.2 by holding that the compliance with proviso to Clause (b) of sub-section (2) of Section 33 of Industrial Disputes Act would be required to be made only if punishment of discharge or dismissal is made and not in respect of other punishments.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. Answer to Point No.3: Whether the word ‘authority’ occurring in sub-regulation (2) of regulation 23 of the Karnataka State Road Transport Corporation Servants (Conduct & Discipline) Regulations, 1971 would require a person who is in the employment of the RTC to be appointed as an Enquiry Officer or could third parties be appointed as Enquiry Officers?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22.2.Regulation 23 of C & D Regulations deals with the procedure for imposing major penalties. It requires that no major penalty can be imposed without holding an enquiry and in terms of subregulation (2) of Regulation 23 of C & D Regulations, the disciplinary authority may by itself enquire into or appoint any authority to enquire into the truth thereof. A perusal of sub-regulation (5) of Regulation 23 of C & D Regulations would indicate the usage of the words Disciplinary Authority and Enquiring Authority. Thus, the Enquiry Officer is also referred to as the Enquiring Authority under said regulations. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22.3.Merely because the word ‘authority’ is used in sub-regulation (2) of Regulation 23 of C & D Regulations, that would not mean an authority by an officer in the RTC but a person who is appointed to inquire into the truth of the matter in respect of any allegation of misconduct of the workmen appointed by the Disciplinary Authority would be the authority. <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22.4.Disciplinary Authority has been defined in the Regulations. Authority has not been so defined. The reason for it cannot be far but to leave it to the discretionary of Disciplinary Authority to appoint such person as an Enquiry Authority as the Disciplinary Authority deems fit. The decision of the Hon’ble Orissa High Court in Paradip Port Trust’s case relied upon by Sri.P.Vilas Kumar, learned Senior Counsel though indicates that the usage of the word ‘authority’ is with regard to an officer of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the employer, I am unable to subscribe to such view since the same would be a restrictive one. As submitted by Sri.Deepak V.Barad, learned counsel for RTC, the RTC has been appointing retired Civil Judges, retired District Judges and former Public Prosecutors to inquire into matters and such persons are being appointed because they have sufficient knowledge of law and the procedure relating thereto. There cannot be any disagreement with the submission made by Sri.Deepak V.Barad, learned counsel inasmuch as an enquiry proceeding requiring the applicability of Rules and Procedure including that of the principles of natural justice there can be no better person than retired judges or legal practitioners who could interpret and apply the law, thereby they would also be an authority they being an authority in law, which to my mind what is </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">more important for conducting an enquiry proceedings than to hold authority by office.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22.6.In that view of the matter, I answer Point No.3 by holding that the Road Transport Corporation can appoint retired Judges including Civil Judges, retired District Judges or former Public Prosecutors as Enquiry Officers and the same would not fall foul of sub-regulation (2) of Regulation 23 of C & D Regulations, 1971.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>23. Answer to Point No.4: What order?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. W.P.No.203007/2014 and W.P.No.203333/2019 are allowed for the reason that prior permission was not obtained by the Disciplinary Authority before imposing the punishment of dismissal on the petitioners therein. The RTC is directed to reinstate the workmen in these matters with 40% back wages and all consequential benefits within a period of 60 days from today.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ii. W.P.No.207355/2017, W.P.No.200010/2014, W.P.No.203006/2014, W.P.No.207009/2014, W.P.No.202055/2017, W.P.No.207246/2017, W.P.No.207502/2017, W.P.No.202834/2019 and W.P.No.204111/2019 are dismissed. </b></p>', '88e251b81685bc09e1206ae94b6f1ca7.JPG', 'd10aa59891da09014f778eb7982a993b.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-16', 1, '', '', '2023-08-15 17:19:21', '2023-08-16 06:19:37');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3337, 'uYd052pCgXd3rA4cySKhei8q5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Indian Succession Act. Revocation/annulment of probate or letters of administration for just cause. Grounds for revocation are not confined to Section 263 or the illustrations therein. Revocation can be done even on other grounds. Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Jagjeevan Prasad Vs Parvati Bai and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.F.A 200373 of 2016 decided on 3 February 2020.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice S.R. Krishna Kumar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>2.<span style=\"white-space: pre;\">	</span>This appeal is directed against the impugned judgment and order dated 09.02.2016 passed in Civil Misc.36/2003 by the Prl.District Judge, Kalaburagi (for short ‘the trial court’), whereby the petition filed by the respondents against the appellant under Section 263 of the Indian Succession Act (for short ‘the Act’) was allowed by the trial court. By the impugned judgment and order, the trial court annulled and revoked the probate granted in favour of the appellant in P & SC No.1/2001 dated 15.3.2001 in respect of the alleged last Will and testament of one late Manohar Prasad, who died on 02.05.2000.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>12.<span style=\"white-space: pre;\">	</span>The following points arise for consideration in the present appeal:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>“(i) Whether the Probate of Manohar Prasad’s alleged Will dated 4-11-1993 granted in favour of the Appellant vide Order dated 15-3- 2001 passed by the Trial Court in P & SC No.1/2001 is liable to be revoked?</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>(ii)<span style=\"white-space: pre;\">	</span>Whether the impugned judgment and order passed by the trial court warrants interference by this Court?</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b><br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>(iii)<span style=\"white-space: pre;\">	</span>What Order?”</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>Point No.1:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>14.<span style=\"white-space: pre;\">	</span>Upon re-appreciation of the entire material on record and after consideration and appreciation of the provisions contained in Section 263 of the Indian Succession Act and other inter-related provisions of the Act, the various facts and circumstances that are germane, relevant and material, would constitute ‘just cause’ so as to entail revocation/annulment of the probate granted in favour of the appellant are as under:-</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>Locus Standi of Respondents to seek Revocation/Annulment :</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>(1)<span style=\"white-space: pre;\">	</span>It is the specific contention of the respondents that they are the wife and children of Manohar Prasad and that upon his death, they have succeeded to his entire estate comprising of all his movable and immovable properties as his only heirs and legal representatives. It is well settled that a person is entitled to seek annulment/revocation of a probate if he is able to show even a semblance of a right/claim over the estate of the alleged testator.<br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>(2)<span style=\"white-space: pre;\">	</span>The Apex Court in Basanti Devi’s case (supra), is held as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><i>\"22... Being a judgment in rem, a person, who is aggrieved thereby and having had no knowledge about the proceedings and proper citations having not been made, is entitled to file an application for revocation of probate on such grounds as may be available to him. We are therefore, of the opinion that application for revocation of the grant of probate should have been entertained.”</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>(3)<span style=\"white-space: pre;\">	</span>Similarly, this Court in the case of M.A.Sreenivasan vs H.V.Gowthama and another 3, has held as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>“ 8... Generally speaking who ever has a right to contest the grant can also be said to be having locus standi to seek for revocation of the grant of probate. Such a person must show that he has some interest in the estate of the deceased, whose Will is said to be probated. In order to entitle him to locus standi in the probate Court, he must show an interest in the estate of the deceased person either by inheritance or otherwise. The test for determining generally whether a person has sufficient interest is this: Will the grant displace any right to which he is otherwise entitled? If so he has an interest. If not he is not. An interest, however slight and even bare possibility of an interest is sufficient to entitle a party to oppose the grant or to maintain a petition for revocation of the grant.\"</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>15.<span style=\"white-space: pre;\">	</span>As held by the Apex Court and this Court (supra), a person having even a semblance of a right or even a bare possibility of an interest in the estate of the alleged testator is entitled to seek revocation/annulment of a probate. It is therefore clear that for the purpose of ascertaining locus standi of the respondents to seek annulment/revocation, it would be sufficient for them to establish prima facie that they are the wife and children of Manohar Prasad and it is not necessary for them to conclusively establish their relationship with him. At any rate, the trial court while dealing with the petition for revocation/annulment is not competent to fully, completely and finally adjudicate upon the said relationship and the jurisdiction of the trial court in such a proceeding is restricted/confined to finding out prima facie whether the respondents are the wife and children of Manohar Prasad for the limited purpose of ascertaining the locus standi of the respondents.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>17.<span style=\"white-space: pre;\">	</span>Upon re-appreciation of the material on record and in the light of the limited scope of enquiry contemplated as regards the prima facie relationship of the respondents with Manohar Prasad for the purpose of locus standi, I am of the considered opinion that the trial court was fully justified in coming to the correct conclusion that the respondents had prima facie established that they were the wife and children of the deceased Manohar Prasad. In this context, though it is vehemently contended on behalf of the appellant that he has adduced substantial oral and documentary evidence to establish that not only was Manohar Prasad married to one Smt.Janaki Bai who had predeceased him, but also that the respondents were not his wife and children, I am of the view that in the light of the law laid down by Apex Court and this Court supra, the material on record clearly indicated that respondents had prima facie established their relationship with Manohar Prasad which was sufficient to come to the conclusion that the respondents had locus standi to file the instant revocation/annulment petition.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>Grounds for Annulment/Revocation under Section 263 of the Act:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>23.<span style=\"white-space: pre;\">	</span>Section 283(1)(c) of the Act contemplates that it was necessary for the trial court seized with proceedings in P & SC No.1/2001 to issue citations calling upon all persons claiming to have any interest in the estate of the deceased Manohar Prasad before the grant of probate in favour of the appellant. In fact, the said proceedings in P & SC No.1/2001 were governed by the “Rules governing Probate and Administration Matters, 1964 (for short ‘the Rules’). Rule 5(1)(iv) of the Rules mandate that it was necessary that notice/special citation of the proceedings is served by the appellant on all persons of the same degree of relation or nearer degree than the appellant as per the procedure prescribed under the said Rule. A conjoint reading of Section 283(1)(c) of the Act r/w Rule 5(1)(iv) of the Rules clearly indicate that in the facts of the instant case, it was incumbent upon the appellant as well as the trial court to issue notice/special citation of the proceedings upon respondents herein and other relatives who are related to Manohar Prasad in same degree or a nearer degree as the appellant. The Apex Court in the case of Manju Puri vs Rajiv Singh Hanspal 5, held as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><i>“36... We thus conclude that even though learned Single Judge had discretion to issue citation or not but in the facts of the present case a citation ought to have been issued in exercise of discretion conferred under Section 283 of the Succession Act and the probate granted without issuance of such citation in the facts of the present case deserves to be revoked and learned Single Judge and the Division Bench committed error in rejecting the application for revocation filed by the appellant.”</i><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>24.<span style=\"white-space: pre;\">	</span>It is true that issuance/non-issuance of a citation to a party is left to the jurisdiction of a probate court. However, in facts of the case on hand, having regard to the fact that there was sufficient material to prima-facie indicate that the respondents were the wife and children of Manohar Prasad coupled with the fact that Manohar Prasad had other relatives who are related to Manohar Prasad in the same degree or a nearer degree as the appellant, it was necessary for the appellant as well as the probate court to issue notice/citation to them as provided in Section 283(1)(c) of the Act r/w Rule 5(1)(iv) of the Rules. In the instant case, indisputably, the appellant has not complied with Section 283(1)(c) of the Act r/w Rule 5(1)(iv) of the Rules and notice/special citation of the proceedings was not served by the appellant or the probate court either on the respondents herein or other relatives who are related to Manohar Prasad in the same degree or a nearer degree as the appellant. It is therefore clear that it was incumbent upon the appellant to serve notice/special citation of the proceedings upon the respondents herein or the other relatives of Manohar Prasad and the omission on the part of the appellant to do so not only renders the proceedings defective in substance but would also vitiate the grant of probate.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>27.<span style=\"white-space: pre;\">	</span>The aforesaid facts and circumstances clearly establish that the probate granted favour of the appellant in P & SC No.1/2001 was liable to be annulled/revoked under Section 263(a) of the Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>29.<span style=\"white-space: pre;\">	</span>A plain reading of Section 263(b) of the Act Will indicate that it is based on the maxim, “ Suppressio Veri and Suggestio Falsi ” viz., if the grant of probate was obtained by suppressing/concealing material facts and by putting forth false averments/contentions, same would constitute just and sufficient cause for annulment/revocation of probate.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>30.<span style=\"white-space: pre;\">	</span>The various circumstances that emerge from the material on record in the instant case clearly indicate that grant of probate of the alleged Will of Manohar Prasad dated 04.11.1993 had been obtained by the appellant by suppressing/concealing material facts and by putting forth untrue/false averments/contentions which clearly constitute ‘just cause’ for annulment/ revocation of the probate. In this context, a perusal of the petition in P & SC No.1/2001 also indicates that the appellant was also guilty of suppression of material facts in that he had deliberately not disclosed/stated/mentioned the details of either respondents or other relatives of Manohar Prasad who are related to him in the same degree or a nearer degree than the appellant. As stated supra, it is not in dispute that Manohar Prasad had brothers, sisters and their respective children who were related to him in the same degree or nearer degree than the appellant and the necessary requisite details of the said persons have been deliberately withheld/ suppressed by the appellant, obviously with malafide intentions and ulterior motives. In fact, in addition to simply describing the respondents in his petition as ‘all concerned’, appellant has not even stated that Manohar Prasad was married to Smt.Janaki Bai and/or that she predeceased him and that they did not have any children. Needless to state that upon the appellant furnishing details of the other natural heirs of Manohar Prasad or at least referring to them in his petition, the probate court would have directed issuance of notice/special citation to them before proceeding further in the matter. It is therefore clear that the appellant was guilty of suppression of the aforesaid material facts which also clearly tantamounts to obtaining the probate fraudulently as contemplated in Section 263(b) and consequently, the grant of probate in favour of appellant was vitiated and same was liable to be annulled/revoked on this ground also.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>31.<span style=\"white-space: pre;\">	</span>The aforesaid facts and circumstances clearly establish that the probate granted in favour of the appellant in P & SC No.1/2001 was liable to be annulled/revoked under Section 263(b) of the Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>33.<span style=\"white-space: pre;\">	</span>A perusal of Section 263(c) of the Act will indicate that even assuming that the appellant had not obtained the probate by fraudulently putting forth untrue/false averments/contentions in P & SC No.1/2001 as contemplated under Section 263(b) and notwithstanding the fact that the said untrue/false averments/contentions were a result of ignorance/inadvertence, since the said untrue/false averments/ contentions were essential to be put forth to justify the grant, the said untrue/false averments/contentions, albeit put forth in ignorance/inadvertence would constitute just and sufficient cause for annulment/revocation of probate granted in favour of the appellant.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>34.<span style=\"white-space: pre;\">	</span>While dealing with Section 263(b) of the Act, I have already come to the conclusion that the appellant had suppressed material facts and had put forth untrue/false allegations/contentions. Under these circumstances, even assuming that the appellant was not guilty of fraudulently obtaining the probate by resorting to “ Suppressio Veri and Suggestio Falsi ” and that the same was due to ignorance and inadvertence, the said untrue/false averments/ contentions essential to obtain probate clearly constituted ‘just cause’ for annulment/ revocation of the probate under Section 263(c) of the Act and consequently, the grant of probate in favour of appellant was vitiated and same was liable to be annulled/revoked on this ground also.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>35.<span style=\"white-space: pre;\">	</span>The aforesaid facts and circumstances clearly establish that the probate granted favour of the appellant in P & SC No.1/2001 was liable to be annulled/revoked under Section 263(c) of the Act also.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>36.<span style=\"white-space: pre;\">	</span>While dealing with Sections 263(a), 263(b) and 263(c) of the Act, the Apex Court in the case of Manibhai Amaidas Patel and another vs Dayabhai Amaidas 6, held as under:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>“ 9. This would clearly show that it is necessary to cite parties who would otherwise have an interest in the succession to the estate of the deceased. That would naturally include all the heirs of the deceased. Besides, Section 283 gives power to the District Judge as regards the issue of citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate.<br></b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>10... In the circumstances, for the respondent to say that the grant was being opposed by “nobody” was misleading. The grant was obtained by concealing from the court something which was very material to the case. The appellants were entitled to be heard and doubtless the District Judge would have directed to issue of citations to each of Amaidas’s heirs on intestacy under Section 283(1)(c) of the Act had the true facts been revealed by the respondent in his application for grant of probate. The advertisement in this case was wholly insufficient to patch up the gross lacuna.</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><i><b>11.<span style=\"white-space: pre;\">	</span>In the circumstances we allow the appeal and revoke the probate granted to the respondent on 4-5-2002. The matter is now to be heard as a contentious case.\"</b></i></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>37.<span style=\"white-space: pre;\">	</span>In view of the aforementioned law laid down by the Apex Court in<span style=\"white-space: pre;\">	</span>Manibhai’s case (supra),<span style=\"white-space: pre;\">	</span>I am<span style=\"white-space: pre;\">	</span>of the considered opinion that the probate granted in favour of the appellant in P & SC No.1/2001 was liable to be annulled/revoked under Sections 263(a), 263(b) and 263(c) of the Indian Succession Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>40.<span style=\"white-space: pre;\">	</span>A perusal of the provisions contained in Sections 263(a) to 263(e) r/w Illustrations (i) to (viii) of the Act indicates that the same is a deeming provision by way of legal fiction inserted as an explanation to the expression, “just cause” for the purpose of enabling the Court to annul/revoke a probate granted by it in favour of a party. In this context, it is relevant to state that the various circumstances found in the explanation contained in Sections 263(a) to 263(e) r/w Illustrations (i) to (viii) of the Act are merely illustrative and not exhaustive and it is open for a party seeking annulment/revocation of a probate to plead and prove other circumstances also which would constitute “just cause” for annulment/revocation of a probate. In other words, the expression, “just cause” is not confined or limited or restricted only to Sections 263(a) to 263(e) r/w Illustrations (i) to (viii) of the Act and the said expression has wide scope, ambit and latitude to include situations other than those provided under the Act.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>43.<span style=\"white-space: pre;\">	</span>It may also not be out of place to state a probate can be granted only in favour of a person who has been appointed as an executor, either expressly or by implication in the Will sought to be probated. A probate of a Will not be granted in favour of a mere legatee simpliciter or anyone else claiming right over the estate of the testator.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>44.<span style=\"white-space: pre;\">	</span>It is however needless to state that such other persons who are not executors are entitled to institute appropriate proceedings either under the provisions of the Indian Succession Act or any other law to agitate their rights over the estate of the deceased testator.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>45.<span style=\"white-space: pre;\">	</span>In view of the aforesaid legal position and facts and circumstances of instant case, I am of the opinion that Probate of Manohar Prasad’s alleged Will dated 4-11-1993 granted in favour of Appellant vide Order dated 15-3-2001 passed by Trial<span style=\"white-space: pre;\">	</span>Court in P & SC No.1/2001 deserves to<span style=\"white-space: pre;\">	</span>be annulled/revoked under Section 263 of the Act.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>Point No.1 is accordingly answered in favour of the respondents.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>Point No.2:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>47.<span style=\"white-space: pre;\">	</span>Upon re-appreciation of the entire material on record and having regard to the facts and circumstances narrated supra, I am of the considered opinion that the trial court was fully justified in annulling and revoking the Probate granted in favour of the Appellant vide Order dated 15-3-2001 passed in P & SC No.1/2001. The impugned judgment and order passed by the trial court is based on correct and proper consideration and appreciation of the material on record and same is based on legal and acceptable evidence which does not warrant interference by this Court.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>Point No.2 is accordingly answered in favour of respondents.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>Point No.3:</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>50.<span style=\"white-space: pre;\">	</span>Upon such appropriate steps being taken by the appellant in P & SC No.1/2001 by making suitable application(s) or otherwise, the appellant as well as the trial court seized of P & SC No.1/2001 are directed to implead respondents herein as party-respondents to the said proceedings in P & SC No.1/2001 and give them sufficient opportunity to contest the proceedings before proceeding further in the matter. The trial court is also directed to notify and implead such other parties to P & SC No.1/2001 as may be required in law and also give them sufficient opportunity to contest the proceedings. Further, the trial court is also directed to dispose off the proceedings in P & SC No.1/2001 de- novo/afresh strictly in accordance with law keeping in mind the findings and observations recorded by me in this order as well as the provisions of the Indian Succession Act. It is needless to state that all rival contentions urged by the appellant and respondents are kept open.</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>Point No.3 is answered accordingly.<br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b><br></b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>ORDER</b></font></span></p><p class=\"MsoNormal\" style=\"margin: 0cm;\"><span lang=\"EN-US\"><font face=\"Calibri, sans-serif\"><b>(i)<span style=\"white-space: pre;\">	</span>The appeal is hereby dismissed;</b></font></span></p>', 'de91d6b2ee76be4d8a2d7ddb4442e54c.JPG', '4e98a8913dc3d0951b911ac8509cbe95.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-16', 1, '', '', '2023-08-15 17:20:44', '2023-08-16 08:01:10'),
(3338, 'autaD88HrnnDNQVfofHObBbZy', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Mere demarcation of land in the Master Plan for road widening would not amount to acquisition. State can either acquire the land by paying compensation or return it to owner. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Ajeet and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 206277 of 2016 decided on 11 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Suraj Govindaraj.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>1. In W.P.No.206277/2016, the petitioners are before this Court seeking for the following reliefs:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>a. Issue a writ of mandamus or order or any other direction in the nature of writ directing the respondents to pay the compensation amount to the petitioners @ Rs.4750/- per square feet with 100% solatium and interest on delayed payment in terms of the compromise petition vide Annexure-D and the order dated 22.07.2016 passed by this Hon’ble Court in WP.No.205692/2015 and other connected matters in the interest of justice and equity.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>b. Grant such other reliefs as this Hon’ble Court deems fit to grant under the facts and circumstances of the case. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. The grievance of the petitioners is that the petitioners are the owners of various properties situated at M.G.Road, Vijaypur (from Tripurasundari Circle to Shivaji Circle) and portion of these properties though had been earmarked in the master plan for the purpose of widening, without acquiring the said land, the City Municipal Corporation, Vijaypur now being re-designated as Corporation on account of Vijaypur being the District Headquarters had issued notices to the owners to attend a meeting on 15.02.2014 to determine the market value. In the said meeting, no consensus having been arrived, on 23.09.2014, the officers of the Corporation had directed the owners to file their willingness of handing over the property and accept the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">compensation fixed by the officials of the Corporation.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>19. This is yet another shocking case where governmental authorities have without even acquiring the land have forcibly entered the property of private persons, demolished the construction put up and widened the road. The object of widening of the road may be laudable but the State and its authorities are required to follow the due process of law before doing so. It is trite that nobody can be higher than the law applicable. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>20. The land of the petitioners though earmarked for the purpose of widening of the road in the master plan had never been acquired by the State nor any proposal been put up by the Corporation for that acquisition. Merely because the land is demarcated for the purpose of widening would not amount to acquisition. Once the land is demarcated for widening it is but required that the concerned Planning Authority and/or Corporation acquire the said land for the purpose of widening thereof. The master plan is required to be in accordance with the Karnataka Town and Country Planning Act, 1961 (for short, ‘KTCP Act) and any demarcation thereof for a particular purpose is required to be reflected in the master plan. In terms of Section 12 thereof, the Master Plan shall consist of a series of maps and documents indicating the manner in which the development and improvement of the entire planning area within the jurisdiction of the Planning Authority <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">are to be carried out and regulated, such plan shall include proposals for zoning of land, present land use maps and proposed land use maps, street patterns indicating major and minor roads, areas reserved for parks etc.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">21. In terms of Section 69 of KTCP Act, the Planning Authority may acquire any land designated in the master plan for ‘public purposes’ by agreement or under the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act as in force in the State. The explanation of sub-section (1) of Section 69 indicates that ‘designated for public purpose’ means designated for the purpose of providing parks, open spaces, public or semi public utilities and infrastructure relating to transport, Roads or widening of the roads would come within the ambit of infrastructure relating to transport. Thus, in terms of sub-section (1) of Section 69, a Planning Authority would only get a right to acquire the land designated </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">for a specific public purpose even though it may be for a purpose of widening of a road. Mere designation would not either vest the land with the Planning Authority nor would owner of the land lose his rights over the said land.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">22. In the present case, admittedly there is only a demarcation of the land of the petitioners for purpose of widening of M.G.Road. There is no acquisition notification which has been issued in pursuance of section 69 of the KTCP Act either by the Planning Authority or the State. The Planning Authority, in the present matter, being the Bijapur Development Urban Development Authority now the Vijaypura Urban Development Authority, neither the Planning Authority nor the State having acquired the land, the land continued to be vested with the landowner. In such circumstances, the land had not been acquired or vested with the authorities, it is impermissible for respondent No.4 and/or its officers to enter upon the private property of the petitioners </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">let alone demolish the same. Such acts committed by respondent No.4 authorities are completely high handed, a fraud on power and misuse of the powers vested with them.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">24. Though it is sought to contended that the said order cannot be treated as a precedent and the petitioners would not be eligible for compensation, as per the compromise entered into therein, this Court vide order dated 19.08.2020 has rejected the said contention and by relying upon the decision of the Hon’ble Apex Court in the case of Nagpur </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Improvement Trust and another versus Vithal Rao and others2 has come to a conclusion that the State or its agencies cannot discriminate the compensation payable to a land losers and that all land losers would have to be treated on par and compensation be paid. Despite this, neither the State nor respondent No.4 have deemed it fit to make available just compensation to the petitioners. The Corporation only contending that it is for the Deputy Commissioner to negotiate and for the State to make payment of the compensation. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. In the present case, enough and more leeway has been granted by several Benches of this Court to the Corporation and the State to arrive at the amicable settlement by determining the compensation that will be paid by the State to the landlosers, despite which the said opportunities given to them have not been utilized.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. In that view of the matter, the only two options which are available is for the land which has been taken possession of by the respondent No.4 - <span style=\"font-size: 12pt;\">Corporation without acquisition to be either returned back to the petitioners since taking possession thereof is illegal or for the State to acquire the land by issuance of necessary notification under the provision of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013. The option, of course, would be that of the State.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>i. The Writ Petitions are allowed. </b></p>', 'b398e0f75b5e025472f9d452a8085025.JPG', '3ba62da77ba8aa5b089f8b813cd0f91d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-16', 1, '', '', '2023-08-15 17:21:52', '2023-08-16 10:17:44');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3341, 'GewuIMqAUOnfyojFpOuPbXjbo', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Rent Act. Date of filing eviction petition governs the jurisdiction of the Court. Subsequent conduct of the parties will not oust the jurisdiction. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Krishnaprasad A Vs L. Doreswamy.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>House Rent Rev. Petition 10 of 2022 decided on 11 August 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P. Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. This revision petition is filed under Section 46 of the\r\nKarnataka Rent Act, 1999 praying this Court to set aside the\r\norder passed by the Chief Judge, Small Causes Court, Bengaluru,\r\nin HRC No.49/2016 dated 22.10.2021 and pass an order of\r\neviction against the respondent, directing him to quit and hand\r\nover the vacant possession of the schedule property to the\r\npetitioner and grant such other relief as deem fit in the\r\ncircumstances of the case.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The factual matrix of case of the petitioner herein is\r\nthat, he had filed the eviction petition being the owner of the\r\nresidential premises situated at ground floor of the building </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">bearing No.34, 17th Cross, West Park Road, Malleshwaram,\r\nBangalore, which is morefully described in the schedule and the\r\nsame was leased out to the respondent who is an advocate by\r\nprofession for a monthly rent of Rs.3,400/- and had received\r\nsecurity deposit of Rs.10,00,000/-. It is also contended that both\r\nof them were friends and respondent requested the petitioner to\r\nlease out the premises and the said request was acceded to and\r\nthe petitioner executed a lease deed, which was drafted by the\r\nrespondent.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n4. It was an understanding between the petitioner and\r\nrespondent that duration of lease would be for a period of three\r\nyears. It is the case of the petitioner that, in 2019 he had\r\nexpressed is inability to pay the rents and requested the\r\npetitioner to deduct the rents at Rs.3,400/- per month from the\r\nadvance so paid by him and to permit him to continue his\r\ntenancy till 2013, to which the petitioner agreed. In the year\r\n2013 when the petitioner requested the respondent to vacate\r\nthe premises as the term of the lease so agreed had expired, the\r\nrespondent requested for extension of lease and kept on</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">promising the petitioner to vacate the premises as and when he\r\nwould find a suitable accommodation.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt;\"><span lang=\"EN-US\" style=\"\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. It is contended that the respondent initially deliberately\r\ndid not appear before the Court and he was placed ex-parte and\r\norder of eviction was passed. Again he filed Misc.No.270/2016\r\nand he adopted dilatory tactics and Miscellaneous Petition was\r\nallowed and matter was taken up for consideration on merits.\r\nBut he contend that, the Court is having no jurisdiction and lack\r\nof jural relationship between the petitioner and respondent. It is\r\nalso contended that when the matter was pending, he filed an </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">application before the Rent Controller for fixation of fair rent to\r\nthe schedule premises and the same was considered and fixed\r\nthe rate of rent at Rs.21,000/- per month. The respondent\r\nhimself confronted the document of lease dated 28.08.2009 and\r\nthe same was impounded for insufficiency of the stamp duty and\r\nhe challenged the same in HRRP No.14/2017 and the same was\r\ndismissed in coming to the conclusion that he was liable to pay a\r\nduty and penalty on the document. The Trial Court having\r\nconsidered the material on record answered point Nos.1 and 3 as\r\naffirmative, but dismissed the petition answering point No.2 as\r\nnegative in coming to the conclusion that petition is not\r\nmaintainable for want of jurisdiction as per Section 2(3)(e)(1) of\r\nthe Karnataka Rent Act.</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>15. Having heard the counsel for the revision petitioner\r\nand also the counsel for the respondent, the points that would\r\narise for consideration of this Court are:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> “i) Whether the Trial Court committed an error\r\nin answering point No.2 that the Court has no\r\njurisdiction to entertain the petition under the\r\nKarnataka Rent Act, 1999 in coming to the conclusion\r\nthat the eviction petition is not maintainable under\r\nSection 2(3)(e)(1) of the Karnataka Rent Act, 1999?</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>\r\n ii) What Order?”<br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">18. Having considered sub-Clause 3 of Section 2, it is very\r\nclear that if the premises within the first schedule, rate of rent is\r\nfixed as Rs.3,500/-, if the premises in second schedule\r\nRs.2,000/- per month in any other area. In the case on hand, it\r\nis not in dispute that, Rs.3,500/- per month in any area referred\r\nto Part A of the first schedule. But here is a case of no rent and </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">only in terms of the document Ex.R5 there was an explicit\r\ncontract between the parties, no rent is payable and premium\r\namount of Rs.10,00,000/- was paid and in view of interpretation\r\nof this Court in Amarnath case particularly in paragraph 16 it is\r\nclear that ‘merely because an amount is advanced and\r\npossession is delivered, a transaction will not become a\r\nmortgage. As stated above, mortgage contemplates the taking\r\nof a loan and delivering possession to secure payment of the\r\nloan, the relationship being that of a creditor and debtor. On the\r\nother hand, in a lease for money advanced or deposit made,\r\nthere is no relationship of debtor and creditor between the\r\nlandlord and tenant. In such a transaction, the tenant who\r\ndesires to take the premises on lease, agrees to make a deposit,\r\ninstead of making a monthly payment as rent, with the\r\nunderstanding that the landlord will continue to hold the said\r\nadvance or deposit so long as the tenant continues in possession\r\nand he should refund the same when the tenant vacates the\r\nleased premises’. In the case on hand also, the same situation\r\nthat deposit of Rs.10,00,000/- was paid and no rent for the said\r\npremises, only he had collected the premium and principles laid </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">down in the judgment apply applicable to the case on hand and\r\nadmittedly there is no contract between the parties with regard\r\nto the rate of rent is concerned. When such being the case, the\r\nTrial Court ought not to have invoked sub-clause (3) of Section 2\r\n(3)(e) of the Karnataka Rent Act and proceeded in an erroneous\r\ndirection invoking Section 2(3)(e) of the Rent Act.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. This Court would like to refer the judgment of the Apex\r\nCourt reported in AIR 1998 SC 2031, wherein the Apex Court\r\nheld that bearing in mind the well settled principles that rights of\r\nparties crystallize to the date of institution of the suit. The\r\nmeaningful construction of the provisions granting exemptions to\r\na building from operation of the Act must be that the exemption\r\nwould apply for a period of 10 years and will continue to be\r\navailable until suit for eviction is disposed of or adjudicated.\r\nOnce right crystallize, the adjudication must be in accordance\r\nwith law. It is common knowledge that unless a suit is instituted\r\nsoon after the date of letting it, would never be disposed of\r\nwithin 10 years and even then within that time it many not be <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">disposed of and hence it is clear that the right of the parties\r\ncrystallized to the date of the institution of the suit and it goes\r\nback to the date of suit for crystallizing the rights of the parties\r\ni.e. date of institution of the suit. In the case on hand, it has to\r\nbe noted that eviction petition was filed in 2016 and subsequent\r\nto filing of execution petition, the tenant had approached the\r\nRent Controller and subsequent event of fixing the rate from the\r\nRent Controller does not ouster the jurisdiction of the Court.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 21. In this regard this Court would like to refer the\r\nJudgment of High Court of Andhra Pradesh reported in (2018) 2\r\nALD 35 (DB) and in the similar facts and circumstances of the\r\ncase with regard to the ousting of jurisdiction in this case matter\r\nwas referred to the Division Bench with a question whether fair\r\nrent fixed by Rent Controller exceeding the upper limit of\r\njurisdiction of Rent Controller takes away the jurisdiction\r\nsubsequent to filing of petition under Section 4(1) of the Act</span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>22. The Andhra Pradesh High Court in detail discussed the\r\nsame particularly in paragraph No.19 held that, if during the\r\npendency of any proceedings rents are fixed, in such an <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">eventuality, the Rent Control Act would not be applicable. In\r\nother words, once the fair rent of any property have been fixed\r\nat a rate more than Rs.3,500/- per month, thereafter an\r\napplication seeking eviction or any other relief in respect of the\r\nproperty could not be filed before the Rent Controller. But in the\r\npresent matter, as on date of filing of the eviction petition, no\r\nfair rent had been fixed.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. It is also important to note that Andhra Pradesh High\r\nCourt in Division Bench judgment referred supra also in\r\nparagraph No.26 taken note of paragraph No.24 of the Full\r\nBench decision, the judgment of the Hon’ble Supreme Court\r\nreported in Atmaram Mittal Vs. Eswar Singh was considered. In <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that case, the landlord filed a suit for recovery of possession of a\r\nbuilding within the exemption period. During the pendency of the\r\nsuit, the period of 10 years expired. The tenant then moved an\r\napplication for disposal of the suit on the ground that exemption\r\nperiod expired and consequently, the jurisdiction of the civil\r\ncourt is barred. The Apex Court clearly negatived the contention\r\nand stated that it is well settled that the rights of the parties will\r\nhave to be determined on the basis of the rights available to\r\nthem on the date of the suit and similarly, the Full Bench of the\r\nAndhra Pradesh High Court reiterated the findings of the\r\nSupreme Court in various cases that when a lis commences, all\r\nthe rights get crystallized on the date of filing of the case and\r\nthe same is observed in paragraph No.26 of the judgment\r\nreferred supra.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n 25. Having perused the principles laid down in the\r\njudgment, it is clear that, if any subsequent conduct of the\r\nrespondent moving an application subsequent to filing of eviction\r\npetition to oust the jurisdiction of the Court and Court has to\r\ntake note of, as on the date of filing of the petition is the</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">relevant date to consider the jurisdiction and not subsequent any\r\nconduct will not oust the jurisdiction.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 26. No doubt, the counsel relying upon the judgment of\r\nthe Karnataka High Court in Anupama Ramesh case brought to\r\nnotice of this Court Section 2(3)(e) of the Act and the same is\r\nnot applicable to the facts of the case on hand. In the case on\r\nhand, there is no rent at all and only premium was paid and\r\nattracting Section 2(3)(e) of the Act does not arise. The counsel\r\nalso relied upon the other judgment in the case of\r\nV.GK.DESIGN AND DEVELOPMENT ENGG (PVT) LTD. and\r\nbrought to notice paragraph No.13, but the same is helpful to\r\nthe revision petitioner wherein the observation is made that the\r\nobject of the Rent Act is to protect one class of tenants who are\r\nresiding in residential premises whose monthly rent is not more\r\nthan Rs.3,500/- in Part A of first schedule and Rs.2,000/- to the\r\nresidential, in second schedule and the commercial or shop\r\npremises, the measurement of which is not more than 14 sq.\r\nmeters. It is further discussed that non fixation of standard rent\r\nor deemed rent in respect of the premises alone is not the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">criteria to exclude the premises from the application of\r\nprovisions of Rent Act. It is further observed that, even in the\r\nabsence of fixation of standard rent or deemed rent to a\r\npremises and if the contractual rate of rent exceeds Rs.3,500/-\r\nper month for a premises in any area referred in Part A of first\r\nschedule, the provisions of Rent Act are not applicable. But in\r\nthe case on hand it has to be noted that first of all no rent is\r\nfixed by the parties and also it is important to note that, there is\r\na contract between the petitioner and the respondent that no\r\nrent is payable and only premium alone is paid and when there\r\nis an explicit contract between the petitioner and respondent\r\nthat no rent is fixed and only premium was paid and he has to\r\ncontinue the possession of the premises until refunding of the\r\npremium amount of Rs.10,00,000/-. The question of either fixing\r\nof the standard rent or non fixing of the standard rent does not\r\narise. There is an explicit contract between the parties, no rent is\r\npayable and only premium amount was paid and this aspect has\r\nnot been taken note of by the Trial Court while invoking Section\r\n2(3)(e) of Karnataka Rent Act and Trial Court committed an\r\nerror in coming to the conclusion that Court has no jurisdiction </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">since it attract Section 2(3)(e) of Karnataka Rent Act and the\r\nvery approach of the Trial Court is erroneous and fails to\r\nconsider factual aspects of the case and there is no any contract\r\nand even tenant got fixed the standard rent subsequent to the\r\nfiling of the petition also even he did not comply the same and\r\nhis intention is only to ouster the jurisdiction of the Court getting\r\nfixed the rent from the Rent Controller and the very conduct of\r\nthe respondent is not taken note of by the Trial Court and also\r\nfails to take note of the fact that the respondent is a tenant and\r\nhe is also a practicing advocate and he indulged in all sorts of\r\nefforts made by him and the very admission given by him in the\r\ncross examination that he had agreed to vacate the premises on\r\nreceipt of Rs.10,00,000/- and even during hearing the\r\narguments, the counsel for the petitioner offered to pay the\r\namount of Rs.10,00,000/- what he had paid to the petitioner as\r\npremium and the same is not accepted and adopted the dilatory\r\ntactics to continue in the premises.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> 27. Having considered the material available on record,\r\nboth oral and documentary evidence and also the answers </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">elicited from the mouth of PW1 as well as RW1 it is clear that\r\npossession was delivered in terms of Ex.R5 and premium\r\namount of Rs.10,00,000/- was paid and the agreement is also\r\nfor a period of three years and though he took the premises in\r\nthe year 2009, for about 14 years he is squatting on the\r\nproperty without vacating the premises and even not accepting\r\nthe premium amount what he had paid and instead raised\r\nuntenable grounds and also approached the Rent Controller for\r\nfixation of rent, but he was not intent to comply with the order\r\nof the Rent Controller though he got fixed the rent of\r\nRs.21,000/- and he categorically admits that he is not having\r\nintention to comply with the order of the Rent Controller, but he\r\nwants to take the shelter of fixation of fair rent in terms of Ex.R1\r\nand the very conduct of the respondent is deprecated and\r\ninstead of receiving an amount of Rs.10,00,000/- which he was\r\npaid as premium making all his efforts to squat on the property\r\nand these are the aspects has not been considered by the Trial\r\nCourt while answering point No.2 and hence, the finding of the\r\nTrial Court in respect of point No.2 is requires to be set aside </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">and petition is maintainable and eviction order has to be passed\r\nagainst the respondents.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 28. It is important to note that, the Trial Court though\r\nanswered point Nos.1 and 3 and held that there exists jural\r\nrelationship between the parties and petitioner has made out the\r\nground to evict the respondent, but on technicalities rejected the\r\npetition and hence I answer the point as affirmative. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> The Revision Petition is allowed. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'acf388fdb4252b0890fab53a019a95c3.JPG', '5618b008ce33bfb28864a4c38813dce1.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-17', 1, '', '', '2023-08-16 12:41:32', '2023-08-17 08:02:24'),
(3333, 'FjUpmJJUTAq0kkHx6Mr0ETbRk', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Statutory authority cannot take away property of the Citizen without paying compensation. Karnataka High Court directs conveyance of the alternate property.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Narayan Vs The Commissioner and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 101438 of 2021 decided on 25 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Pradeep Singh Yerur.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>This petition is filed by petitioner seeking a writ of mandamus for a direction to the 1st respondent to execute a proper deed of conveyance in respect of the land bearing CTS No.229, situated at Ranade Road, Tilakawadi, Belagavi and further direction to respondent No.2 to expedite the process by according necessary permission.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>3. It is the contention of the learned counsel for petitioner that father of petitioner was the absolute owner of property bearing CTS No.442, situated at Congress Road, Tilakwadi, Belagavi. He further contends that a sizable portion of approximately 2350 sq.feet of the said commercial property was illegally demolished by the&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">1 st respondent without due process of law in the year 1994 for alleged road widening.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Per contra, learned counsel representing respondent No.1 contends that the property which is allotted in favour of petitioner is on lease cum sale basis and it is not absolute ownership. In accordance with section 176 of the Karnataka Municipal Corporation Act, 1976, he contends that no property can be transferred or disposed of by sale or by any other transfer except with the previous sanction of the Government as contemplated under section 176(6)(b)(iii) of the Act. He contends that if respondent No.2 has the necessary permission as contemplated under the above provision, they do not have any objection in executing the deed of conveyance in favour of the petitioner.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>9. It is seen that Article 300A of the Constitution of India deals with \'persons not to be deprived of property save by authority of law\'. Therefore the right of the petitioner with regard to his property which was in his&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">absolute ownership is constitutionally valid under Article 300A and the constitutional right cannot be deprived of by authority, even if it is an agency of the State, by demolishing the same depriving the right of the petitioner for peaceful enjoyment of his property, without suitable compensation or an alternative site absolutely in favour of the petitioner. The respondents have conveniently demolished the property belonging to the petitioner and having accepted the same, have executed a lease cum sale document by allotting an alternative land bearing site No.229 situated at Ranade Road, Tilakawadi, Belagavi, by resolution No.19, dated 14.12.1995, at Annexure-A, but pursuant to the same, has not executed the deed of conveyance in favour of the petitioner either for the property which is given on lease cum sale or any other suitable property of similar dimension which was deprived of to the petitioner.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. In the above said facts and circumstances of the case, this Court is of the opinion that there is no dispute with regard to the petitioner’s absolute ownership of the property bearing CTS No.442, situated at Congress Road, Tilakawadi, Belagavi and the said property was demolished by respondent No.1 for the purpose of construction or widening of the road and also there is no dispute to the effect that as compensation to the demolished property belonging to the petitioner an alternative site is allotted by respondent No.1 in CTS No.229 situated at Ranade Road, Tilakawadi, Belagavi, vide resolution dated 14.12.1995.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Therefore under the above said facts and circumstances of the case, there would be no option for the respondents but to execute a deed of conveyance of the very same property i.e., CTS No.229 situated at&nbsp;<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Ranade Road, Tilakawadi, Belagavi, as the petitioner has already constructed a house therein.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>ORDER</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>i) The writ petition is allowed.&nbsp;</b></span></p>', 'ec3d17593d9013f197adf50f42c26c60.jpeg', 'dd9848c9ed95e80d8e82cfc3dccd964d.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-14', 1, '', '', '2023-08-14 08:54:57', '2023-08-14 08:54:57'),
(3339, 'MCsjqs6fm1r7ZOkQBUqkBrVO2', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Police Act. Playing ‘’Andhar Bahar” in private house does not attract Common Gaming-House under the Act. Prosecution cannot launched in such a scenario. Karnataka High Court.  ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Praveen Kumar and others Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 6561 of 2022 decided on 7 August 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Hemant Chandangoudar.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioners- accused Nos. 3, 4 and 5 who are sought to be prosecuted for the offence punishable under Sections 79 and 80 of the Karnataka Police Act are before this Court.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. The case of the prosecution is that, on 26.9.2016, on receiving credible information, a raid was conducted on the house belonging to the accused No.1 and it was found that, the accused herein were found gambling playing Andhar Bahar, and a sum of Rs.43,360/- and 52 playing cards were recovered from the accused herein. <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>5. The issue involved in this petition is squarely covered by the decision of the Coordinate Bench of this Court in the case of Sri. K.N. Suresh -vs- State of Karnataka and Another, reported in ILR 2012 KAR 1443, wherein, at para 5 and 6, it is held as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>\"5. The case of the prosecution is that the game was played inside the house bearing No. 552, First floor, 5th cross, 8th main, Indiranagar, Bangalore and the said premises cannot be called as \"Common gaming house. \"The definition of \"Common gaming house\", as defined under Section 2(3) of the Karnataka Police Act, is as follows:</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>\"Common gaming-house\" means a building, room, tent, enclosure, vehicle, vessel or place in which any instrument of gaming are kept or used for the profit or gain of the person owning, occupying, or keeping such building, room, tent, enclosure, vehicle, vessel or place, or of the person using such building, room, tent, enclosure, vehicle, vessel or place, whether he has a right to use the same or not, such profit or gain being either by way of a charge for the use of the instruments of gaming or of the building, room, tent, enclosure, vehicle, vessel or place, or otherwise howsoever or subscription or other payment for the use of facilities along with the use of the instruments of gaming or of the building, room, tent, enclosure, vehicle, vessel or place for the purposes of gaming\".</b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b><br></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><i><b>6. It is seen that there is not complaint by anybody against the petitioner. Under the circumstances, the registration of the case by the Police is sheer abuse of process of law and therefore the proceedings instituted by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">he Police is required to be quashed. Accordingly, the proceedings in Crime No.411/2011 is hereby quashed. It is needless to state that the property seized in the case required to be returned to the person from whom the same has been seized and therefore, it is directed that the Police shall return the property to the person from whom the same has been seized\".</span></b></i></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>6. In the instant case, the accused herein were playing Andhar Bahar along with other accused inside the house belonging to the accused No.1 which does not comes under the purview \"common gaming house\" as defined under Section 2(3) of Karnataka Police Act.</b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7. The accused herein along with other accused were not playing Andhar Bahar in a common gaming house or in public place so as to constitute the commission of the offence under Sections 79 and 80 of the Karnataka Police Act. Hence, the continuation of the criminal proceedings will be an abuse of process of law. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Accordingly, I pass the following order:</span><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>8. Criminal petition is allowed.</b></span></p>', 'dc0113dfa16f6e69359c3b92b7289930.jpeg', '64b3190a7732fbff558bfff90461d988.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-17', 1, '', '', '2023-08-15 17:22:52', '2023-08-17 06:25:36'),
(3340, 'MoctfcHbVLsTX7Gaeux6vWYE5', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘’A lender cannot lend his ears for cock & bull stories of the borrower’’. Karnataka High Court rejects plea of Senior Advocate & chronic loan defaulter challenging loan recovery proceedings. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>N Ravindranath Kamath Vs Subramanyeshwara Co-Operative Bank Limited and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 3791 of 2021 decided on 7 August 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. In these Petitions, Petitioner a designated\r\nSenior Advocate being a chronic loan defaulter of the 1st\r\nRespondent – Cooperative Bank is knocking at the doors\r\nof Writ Court for assailing the coercive loan recovery </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">proceedings instituted under the provisions of SARFAESI\r\nAct, 2002 on the ground that the due procedure\r\nestablished under law has not been followed. Learned Sr.\r\nAdvocate appearing for the Petitioner argues that his\r\nclient was not given the reprieve admissible on account of\r\nCovid -19 Pandemic and that he had no fair deal at the\r\nhands of the lender – Bank. Having so argued, he lastly\r\nsaid that should a period of three months be granted,\r\nentire loan amount would be cleared by recourse to ‘taking\r\nover’ or the like. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. Having heard the learned counsel for the parties\r\nand having perused the Petition papers, this Court declines\r\nindulgence in the matter for the following reasons:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(a) The structure of banking in India comprises\r\nseveral categories of banks. Amongst these, the\r\nCooperative Banks are registered as Cooperative Societies\r\nunder the provisions of either the State Cooperative\r\nSocieties Act(s) or the Multi-State Cooperative Societies\r\nAct, 2002. Respondent – Bank is registered under\r\nprovisions of Karnataka Co-operative Societies Act, 1959.\r\nThis Court takes judicial notice of the fact that in the\r\nrecent past, several cooperative banks in the country have\r\ncommitted legal suicide owing to mindless lending coupled\r\nwith culpable failure to recover the outstanding debts.\r\nThis Court cannot leave it unsaid that a serious problem of\r\ncooperative credit is the overdue loans of the cooperative\r\nbanks which have been continuously proliferating over the\r\nyears. Large amounts of overdues restrict the recycling\r\nof funds and thereby, adversely affect the lending &\r\nborrowing capacity of the cooperative institutions. In fact,\r\ntwo statutory committees, viz., the Narasimham\r\nCommittee and The Madhav Rao Committee had\r\nsuggested stringent remedial actions in this regard. All <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">this needs to be briefly adverted to because, the first\r\nRespondent also happens to be a cooperative banking\r\ninstitution and therefore, it has to take all measures as are\r\nnecessary for recovering the outstanding loans, speedily if\r\nnot on a warfooting.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(b) The availment of loan is not in dispute; the\r\namount specified as outstanding, is also not much in\r\ndispute; the subject property has been bought by the\r\nPetitioner from the loan amount in question. The Bank in\r\nall fairness agrees that the Petitioner on being served with\r\na spate of notices, has repaid only a sum of\r\nRs.62,42,183/- that too as on 06.07.2020. However, that\r\nis not the end of matter since a gigantic sum of money still\r\nremains unpaid. The repayment of subject loan is secured\r\nby the mortgage of this property. When the loan remains\r\nunpaid despite notices, and the borrower continues\r\nrecalcitrantly to be a defaulter, such loan account is\r\nendorsed as NPA; this happened to Petitioner’s loan\r\naccount way back in 2017 itself. The Banks deal with</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">public money and therefore, they are subject to the\r\ndoctrine of public trust. Banks and Financial Institutions\r\nare bound to take coercive action for the speedy recovery\r\nof outstanding loans. Even judicial intervention for such\r\nrecovery is now statutorily minimized and banks\r\nthemselves do it on their own. The 2002 Act is made inter\r\nalia with that object in mind. Cooperative Banks are\r\nbrought within the beneficial fold of this Act vide Apex\r\nCourt decision in PANDURANGA GANAPATI CHAUGULE vs.\r\nVISHWSARAO PATIL MURUGUD SAHAKARI BANK LTD.,\r\n(2020) 9 SCC 215. Therefore, the coercive proceedings of\r\nloan recovery inevitably taken up by the Respondent-Bank\r\nunder the provisions of the Act, cannot be faltered, no\r\nbreach therein having been demonstrated.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(k) Petitioner has been playing all tactics to delay, if\r\nnot defeat the claim of Bank. It is not that this is the only\r\nproperty which the petitioner owns; as already mentioned\r\nabove. Admittedly, he owns properties in Coorg too. He\r\nhad told the Bank way back in 2019-2020 that he would <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sell these properties and pay off the outstanding debts.\r\nThese words, he did not keep up with the excuse of\r\nintervening COVID-19 pandemic. Gone are those days\r\nnow and still he has not prima facie demonstrated the\r\nendeavors made for disposing off the said properties. A\r\nlender cannot lend his ears for cock & bull stories of the\r\nborrower, endlessly. A writ court cannot grant indulgence\r\nto an unscrupulous litigant who does not keep up his\r\nwords given repeatedly. A borrower is a borrower, whether\r\nhe is a practising lawyer or a sitting Judge. Loan laws do\r\nnot provide for favourable treatment to them differential\r\nqua other borrowers, when they become chronic\r\ndefaulters. An argument to the contrary offends\r\nequality/parity in matters of loan recovery and therefore,\r\ncannot be countenanced. Showing any more indulgence in\r\nfavour of the Petitioner would give scope for public\r\ncriticism that courts are favouring the unscrupulous\r\nborrowers only because they happen to be in the legal\r\nfraternity.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the above circumstances, this writ petition being\r\ndevoid of merits is liable to be dismissed and accordingly it\r\nis, costs having been reluctantly made easy. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '7f35105ba59e856a2a32193016f976d6.JPG', '232bd6ae2eafb1dab165f8d24d6f7938.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-17', 1, '', '', '2023-08-16 12:32:42', '2023-08-17 10:28:36');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3342, 's2ut6irDwaehuVnwddVtG2P7c', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Haj Committee Act. Term of Chairman and Members cannot be extended simply because they took charge of their office belatedly. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Raufuddin Kacheriwalay and others Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 648 of 2023 decided on 11 August 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Petitioners being the nominated members of the\r\nState Haj Committee (hereafter ‘K-SHC’) constituted in\r\nterms of section 18 of the Haj Committee Act, 2002, vide\r\nNotification 20.01.2020 are seeking directions at the\r\nhands of the Writ Court as under:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>“(a) A writ of Mandamus or any other writ\r\nor order directing the Respondent No.1 & 2 to\r\nnot to disturb the functioning of the Petitioner\r\nNo.1 as Chairman and Petitioner No.2 to 10 as\r\nmembers of the Karnataka State Haj Committee\r\n(Respondent No.3) till completion of their term\r\nof three years i.e., till 06.07.2024, in the\r\nInterest of Justice and Equity.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(b) A writ of Mandamus to declare that the\r\nterm of the Petitioners as members of the\r\nKarnataka State Haj Committee (Respondent\r\nNo.3) for a period of three years has\r\ncommenced from 07.07.2021 “ANN-D and will\r\nend on 06.07.2024,” in the interest of Justice\r\nand Equity.“ <br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Having heard the learned counsel for the\r\nparties and having perused the Petition Papers, this\r\nCourt declines indulgence in the matter for the following\r\nreasons:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(I) Foundational facts of the case: </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>(i) Petitioner Nos.2 to 10 are the members of\r\nKarnataka State Haj Committee; they were so nominated\r\nby the State Government vide Notification dated\r\n20.1.2020 for a period of three years. For very long, the\r\nChairman was not elected till the intervention of a\r\nCoordinate Bench in KHUSRO QUERESHI supra in which\r\nassurance of the State Government to conduct the\r\nelection within an outer limit of six weeks was recorded.\r\nAccordingly, election was held on 24.6.2021 and the\r\nState Government vide Notification dated 7.7.2021\r\nissued under sub-sections (1) & (3) of section 21 of the\r\nAct notified the appointment of first Petitioner as the\r\nChairman of the Committee.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">(ii) The Executive Officer of the K-SHC vide letter\r\ndated 20.9.2022 sent a proposal for the reconstitution of\r\nCommittee stating that the tenure of the present\r\nCommittee would come to an end on 20.1.2023 and that\r\nnecessary steps in terms of section 22(1) of the Act need\r\nto be taken for the reconstitution of the new Committee\r\nat least four months in advance. The first petitioner being </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Chairman of K-SHC vide letter dated 23.12.2022\r\nrequested the State Government for extension of the\r\nterm of the present Committee. He had sent similar\r\nrepresentation to the Minister for Haj. These letters have\r\ntriggered the present petition.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(III) A brief legislative history of Haj:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(d) Section 1(1) of the Act gives nomenclature to\r\nthe legislation. Sub-section (2) empowers government to\r\nbring into force the Act in piecemeal in various States.\r\nSection 2 is the Dictionary Clause; section 3 provides for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the constitution of HCI; section 4 mentions about its\r\ncomposition and number & qualification of members;\r\nsection 6 prescribes three year tenure for the Committee,\r\nand its Proviso empowers the Central Government to\r\nelongate the tenure by six months, twice. Section 7\r\nprovides for the election of Chairman and two Vice\r\nChairmen of HCI; their tenure is also three years; their\r\nterm of office is coterminous with that of the Committee;\r\nsection 9 gives the duties of Committee, and section 10\r\nprovides for meetings & their procedure; section 11\r\nprovides for the appointment of Standing Committees.\r\nSection 12 prescribes disqualification of members of\r\nCommittee. Section 13 provides for resignation of\r\nChairman, Vice Chairmen or members of HCI. Section 14\r\nprovides for their removal by the Central Government;\r\nsection 15 provides for filling the vacancies arising due to\r\nresignation or removal. Section 16 provides for the\r\nappointment of Chief Executive Officer by the Central\r\nGovernment chosen from amongst its officials not below\r\nthe rank of Deputy Secretary; CEO happens to be the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Secretary of the Committee, ex officio; his tenure is\r\nthree years and one year extension is permissible.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(e) Section 17 authorizes the Central Government\r\nto empower the State Government to constitute a SHC;\r\nsection 18 speaks of the composition & qualification of\r\nmembers and election of Chairperson; section 20\r\nprescribes a tenure of three years and payment of\r\nallowances to the Chairperson & members; section 21\r\nprovides for election of Chairperson, whose tenure again\r\nis three years and for the filling up vacancy in the office\r\nof Chairperson. Section 23 speaks of disqualification of\r\nmembers; section 24 provides for resignation of\r\nChairman and members of SHC; section 25 provides for\r\nremoval of Chairman and Haj Committee Members;\r\nsection 26 provides for filing their vacancies; section 28\r\nprovides for meetings & their procedure; section 29\r\nprovides for appointment of CEO for SHC by the State\r\nGovernment.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(f) Chapter IV comprising of sections 30 to 34\r\ndeals with finance, accounts and audit of the HCI and KSHC. Chapter V comprising of sections 35 to 52 deals\r\nwith miscellaneous aspects. Section 36(1) empowers the\r\nCentral Government to supersede HCI and the effect of\r\nsupersession. Section 36(4) vests similar power in the\r\nState Government qua the K-SHC. Section 44 vests rule\r\nmaking power in the Central Government prescribing\r\nlaying procedure. Similar power is vested in the State\r\nGovernment under Section 47. Accordingly, Karnataka\r\nState Haj Committee Rules, 2010 have been\r\npromulgated. Section 45 empowers the HCI & K-SHCs to\r\nmake byelaws. Section 51 empowers the Central\r\nGovernment and the State Governments to give\r\ndirections to the HCI and K-SHCs, respectively.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(IV) Legal aspects of the case:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(a) The first submission of learned counsel for the\r\npetitioners that the tenure of the Chairman of the K-SHC\r\nis three years and that the due election of the first\r\npetitioner as Chairman having been notified only on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">7.7.2021, his tenure would continue till 6.7.2021, is bit\r\ndifficult to countenance. Reasons for this are not far to\r\nseek: The K-SHC shall comprise of sixteen members to\r\nbe nominated by the State Government as provided u/s\r\n18. The nomination is notified u/s 19 with effect from\r\nwhich the Committee is comprised. Section 20(1)\r\nprescribes a tenure of three years to be reckoned from\r\nthe Notification issued u/s 19. In the case at hands, this\r\nNotification was issued by the State Government on\r\n20.1.2020 and thus, its tenure of three years expired on\r\n19.1.2023, the request for extension of the tenure\r\nsought for by the Chairman of the Committee having not\r\nbeen acceded to. Secondly, it is the Committee\r\nconstituted under the Notification dated 20.1.2020 which\r\nelected the first petitioner as the Chairman. The tenure\r\nof the Committee itself being three years, it can elect the\r\nChairman for the length of its tenure and not beyond;\r\nthis view is consistent with the democratic principle\r\nenacted in the provisions of the Act. The prescription of\r\nterm of office of the Chairman u/s 21(4) is three years, is </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">true. However, it only means that his tenure can be\r\nthree years or for the remainder of the Committee’s\r\ntenure, whichever is earlier.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(b) The Chairman is a post or office as\r\ncontradistinguished from its incumbent. The Committee\r\nis a corporate entity and the Chairman presides over its\r\nmeetings. The office of Chairman ordinarily has a\r\nprescribed tenure and such tenure begins from the day\r\none of the Committee regardless of its incumbency.\r\nSection 21(1) mandates the government to convene the\r\nmaiden meeting of the Committee within 45 days of its\r\nformation for electing one of its members as the\r\nChairman. If delay is brooked in conducting such a\r\nmeeting that does not elongate the tenure of the electee\r\nas the Chairman. In other words, the tenure of the\r\nChairman is coterminous with that of his membership\r\nand once he ceases to be a member by resignation,\r\nremoval or expiry of his membership, his Chairmanship\r\nalso stands determined. This view gains support from the</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">statutory scheme that a Chairman necessarily has to be a\r\nmember of the Committee and thus, being a member is a\r\npre-requisite for becoming the Chairman. Had the\r\nCommittee had power to elect a non-member to be the\r\nChairman, arguably a different consideration would have\r\narisen.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(c) A formal appointment to the office of\r\nChairman by election does not decide his tenure as long\r\nas there can be someone to officiate in his position, on\r\nad hoc basis or otherwise. If the statutory tenure of\r\nChairman is three years and the election of Chairman\r\nhappens, say one year after the Committee was formed,\r\nit does not imply that still he holds the office for three\r\nyears thereafter and eventually beyond the tenure of the\r\nvery Committee which elected him. This proposition is\r\nconsistent with the scheme enacted inter alia in sections\r\n18, 19, 20, 21 & 22 of the Act, as rightly contended by\r\nthe learned Advocate General. The soundness of an\r\nargument can be adjudged better by contemplating the\r\nconsequences of its opposite. Let me assume that the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Committee was constituted on 1.1.2020 and therefore,\r\nits tenure would expire on 31.12.2022 and it if at all\r\nelects the Chairman from amongst its members on\r\n31.12.2022 i.e., on the last day of its tenure (whatever\r\nbe the reasons for not making the appointment earlier),\r\nthen going by the submission of petitioners counsel, the\r\nperson elected as the Chairman on the eve of 1.1.2023\r\nshall act as such for one day qua the outgoing Committee\r\nand he shall be the Chairman for a period of three years\r\nminus one day for the next Committee. It is incongruous\r\nto contend that a person can cease to be a member of\r\nthe Committee by efflux of his statutory tenure of three\r\nyears and still can continue to be its Chairman;\r\neventually, his membership can be six years; added, he\r\nshall be the Chairman of the Committee which has not\r\nelected him at all. In the scheme of the Act, there is\r\nabsolutely no scope for such a thing to happen.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(d) Learned counsel for the petitioners argued\r\nthat sub-section (6) of section 7 provides that the\r\nChairman’s “tenure shall be coterminous with the term of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the Central Committee” and such an expression being\r\nconspicuously absent in section 21(4), there is no scope\r\nfor the view that with the expiry of the tenure of the\r\nState Committee, the tenure of Chairman should also\r\ncome to an end. </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Let me examine Section 7(6) of the Act\r\nwhich has the following text:\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>“7. Chairperson and Vice-Chairpersons.—\r\n(6) The term of office of the Chairperson and\r\nthe Vice-Chairpersons, as the case may be, shall\r\nbe co-terminus with the term of the Committee\r\nand no person shall hold office of the Chairperson\r\nor the Vice-Chairpersons, as the case may be, for\r\nmore than two consecutive terms. “\r\nThe following text of section 21(4) also needs to be\r\nseen:</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"> “21. Chairperson.—\r\n(4) The term of office of the Chairperson\r\nshall be three years and no person shall hold the\r\noffice of the Chairperson for more than two\r\nconsecutive terms.”</span><span style=\"font-size: 12pt;\"> </span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>At page 2946, what Maxwell\'s editor Mr.P.St.J.Langan\r\nwrites is illustrative:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>\"Where section 2(2) of the Rating and Valuation\r\n(Apportionment) Act 1928 provided definitions\r\nof both \"agricultural land\" and \"agricultural\r\nbuildings\", the definition of the former including\r\n\"land exceeding one quarter of an acre used for\r\nthe purpose of poultry farming\", it was held by\r\nthe Court of Appeal that a broiler house fell\r\noutside the definition of agricultural land. \"The\r\nAct\", said Lord Denning M.R., \"draws a clear\r\ndistinction between \'buildings\' and \'land\' and\r\nthose terms are mutually exclusive here.... I\r\nhave no doubt that the whole of a broiler house,\r\nincluding the earth on which it stands, is a\r\n\'building\' and not \'land\'.\" </i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>This maxim like all other is not to be applied as a Thumb\r\nRule regardless of the intent & policy content of the\r\nstatute in question. There is strong juristic opinion to\r\nthe effect that the subject maxim being ordinary of\r\napplication, is not be readily invokable in all\r\ncircumstances. It admits plural exceptions & variations.\r\nMaxwell at page 295 reads as under:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“…expressio unius, may not always provide\r\nthe answer to problems of construction. “It\r\nis,” said Lopes L.J., often a valuable\r\nservant, but a dangerous master to follow\r\nin the construction of statues or documents.\r\nThe exclusion is often the result of\r\ninadvertence or accident, and the maxim\r\nought not to be applied when its application,\r\nhaving regard to the subject-matter to which\r\nit is to be applied, leads to inconsistency or\r\ninjustice. More recently, Russell J. refused to\r\napply the rule where to have done so would\r\nhave produced a wholly irrational\r\nsituation.” </i><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(f) Added to the above, the word ‘democratic’\r\noccurs in the Preamble of our Constitution. Democracy is\r\nheld to be one of the Basic Features of the Constitution\r\nvide INDIRA NEHRU GANDHI vs. RAJ NARAIN, AIR 1975\r\nSC 2299. When a federal legislation enacts a democratic\r\nprinciple, due significance has to be attached to the same <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">in respect of all institutions. Therefore, such a principle of\r\ndemocracy cannot be hibernated by a Latin maxim of the\r\nkind. After all, the said maxim is not that as sacrosanct\r\nas to overwrite the principles of Democracy enacted in\r\nthe provisions of the statute.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\nIn the above circumstances, this Petition being\r\ndevoid of merits, is liable to be dismissed and\r\naccordingly, it is, costs having been made easy.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '8cb1cfe0a448e7b081f8bb0153610f50.JPG', 'e307742381881b3e8b6bbcad77b77943.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-17', 1, '', '', '2023-08-16 13:03:00', '2023-08-17 03:23:01'),
(3332, 'pNZS1KMst8EzUhsVOrhnJ5yZF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'When appeal against dismissal of suit for injunction is pending, the same does not give right to the defendant to seek injunction by way of fresh suit on same the cause of action pleaded by him. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Nanjamma and others Vs Rajamma and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>M.F.A 2172 of 2023 decided on 4 August 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice H.P Sandesh.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. The factual matrix of the case of the respondents/plaintiffs herein in the suit in O.S.No.7245/2022 is </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">that plaintiffs are the absolute owners of the property bearing Sy.No.32 measuring 2 acres 7 guntas of Puttenahalli village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore morefully described in the schedule and the relief sought is for permanent injunction restraining the defendants from interfering or attempting to interfere with the plaintiffs’ right, title, interest and ownership of the property and also restraining the defendants from interfering with the commencement and completion of the project on the schedule property described in the schedule. The schedule property is bearing No.32/1, 32/3, 32/4 measuring 5 acres 35 guntas situated at Puttenahalli village, Uttarahalli hobli, Bangalore South Taluk. In the plaint it is contended that the plaintiffs have executed the Power of Attorney in favour of Sri B M Karunesh and also executed registered Joint Development Agreement on 01.07.2005 for the purposes of development of the property. It is also contended that the plaintiffs are the owners of the property of land bearing Sy.No.32 measuring 7 acres 9 guntas including 18 guntas of karab situated at Puttenahalli village, Uttarahali hobli, Bangalore South taluk and the same was purchased by late Kadirappa under a sale deed </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">dated 16.01.1918. The said late Kadirappa was cultivating the said land and was in joint possession along with joint family property together with his children. Kadirappa and his seven sons have effected family registered partition on 15.06.1954. Under the aforesaid partition, the land in Sy.No.32 of Puttenahalli village measuring 7 acres 9 guntas was divided into three equal shares to M. Bramhananda, Dr. M. Gurudas and Narayanadas and M.Bramhananda became the absolute owner of 2 acres 10.33 guntas, M.Narayanadas became the absolute owner of 2 acres 10.33 guntas and Dr. M.Gurudas became absolute owner of 2 acres 10.33 guntas in Sy.No.32 situated at Puttenahalli village.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>24. Having heard the learned counsel appearing for the respective parties and also having considered the principles laid down in the judgments referred supra by the respective counsel the point that would arise for the consideration of this Court that:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Whether the Trial Court has committed an error in granting an order of injunction when the appeal is pending and whether the cause of action is different in the present suit?</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(ii) What order? <br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>27. Apart from that, cause of action set out in O.S.No.8033/2014 and also in the present suit is also interconnected with regard to the construction work undertaken by defendant No.21 and in O.S.No. 8033/2014 and in the present suit seeks only for the relief of injunction. Hence, it is clear that cause of action is one and the same and appeal is also pending before the Court for consideration. The appeal is also a continuation of the suit. No doubt the counsel for the respondents/plaintiffs contend that the Trial Court has given the finding in paragraphs 12, 41, 42 and 43 with regard to the prima facie case of the appellants herein and when the said finding was questioned before this Court and when the appeal also admitted, the Trial Court ought not to have considered while passing an interim order. No doubt, the Trial Court while considering I.A. taken note of non-production of the original document based on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">which the appellants are claiming their right. The reasoning is that the plaintiffs have made out prima facie case. When the appeal is pending before the High Court, another suit was filed making false submission that High Court has refused to grant any interim order, though the same was not considered on merits in the appeal and the same is pending for consideration and when this Court ordered that the same would be considered along with merits. The present respondents/plaintiffs have not approached the Court with clean hands and the discretionary relief for granting injunction invoking Order XXXIX Rule 1 and 2 of CPC is a discretionary relief and discretion should not be exercised when the material facts are suppressed before the Trial Court. No doubt, there is a dispute with regard to the title of the properties and both of them claimed their title.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>28. It is also important to note that in both the suits that is O.S.No.8033/2014 and O.S.No.7245/2022 (the present suit) they sought for only the relief of permanent injunction and the crux of the issue is with regard to that the plaintiffs are claiming that the suit schedule property is an ancestral property and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">there was a partition. On the other hand, it is the claim of the appellants herein that earlier they have purchased the property in the year 1958 by the Brahmanand and Narayandas and Others and the same is also reflected in the grant order and grant also made in the year 1975. Before granting the order also statements of some of the witnesses were recorded before the Deputy Commissioner and same is also placed on record and the same includes the said Brahmanand and Narayandas and the same is also produced before the Court and they are also parties to the earlier sale deed of the year 1958 and the issue involved between the parties is not finally adjudicated. As contended by the counsel for the appellants, the matter is sub-judice before this Court but a suit is filed by the respondents herein seeking for an order of injunction knowingfully well that the appeal is admitted and the matter is pending for consideration and a statutory appeal is filed before this Court and when the appellants have a right of statutory appeal, the same has to be considered by this Court.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>29. It is also not in dispute that the appeal is pending for consideration and under the statutory appeal, this Court has to consider both factual aspects as well as question of law and reappreciate both mixed question of fact and law. Though suits are filed by both the appellants as well as the respondents herein, I have already pointed out that both the suits for the relief of injunction and both of them have not claimed title in the respective suits and when such being the case, when the issue is pending before the Court under the statutory appeal, matter has to be reanalyzed by this Court. The relief is also sought before the Trial Court by the present respondents not to interfere with the construction work. The judgment relied upon by the appellants in the case of AENIT MATAPLAST (P) LTD. referred supra, the Apex court held that if any construction is made and the same would amounts to change the nature of the property that cannot be done when the appeal is pending before the Court. The material discloses that based on the interim order obtained by the respondents before the Trial Court they started construction work and before this Court also they have given an undertaking that they are not going to continue the same and <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">thereafter when such an undertaking was given, in spite of it, when they continued the work and the same is brought to the notice of this Court and this Court directed not to put up any construction. In the other judgment the Apex Court held in Maharwal Khewaji Trust case that changing the nature of the property by putting up construction requires to be restrained since the appeal is pending and if the construction is permitted, it will leads to multiplicity of proceedings among the parties. No doubt the counsel for the respondents vehemently contend that the appellants are not having any case at all and the very grant is disputed and the very earlier sale deed is disputed and the sale deed bears the different registration number and the same is also in respect of not the said sale and the same is in respect of different sale and the same has to be adjudicated in a statutory appeal. It is also important to note that the Apex Court in the case of Shridevi and another and in the other case Nawab Mir Barkat Ali khan referred supra held that possession of the parties become irretrievable if construction is permitted and when such ratio is held that construction cannot be permitted when the appeal is pending. The Trial Court also ought not to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">have granted the relief of injunction when the appeal is pending and matter is subjudice before the Court. In the judgment of the Apex Court referred supra in Ambalal case, the Apex Court held that if an injunction is obtained falsely stating that High Court has refused to grant an injunction and when the same is also not considered on main and it will be considered along with main and the very suppression of facts in obtaining the order also not sustainable in the eye of law and the said judgment is apply applicable to the case on hand as contended by the appellants counsel.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>30. It is also settled law that where a decree on merits is appealed, the decision of the Trial Court loses its character of finality and what was once resjudicata again become ressubjudice and it is the decree of the appellate Court which will then be resjudicata and the same is also held in the judgment of the Apex Court in Sheodan Singh case. It is also important to note that recently the Apex Court held in the case of Canara Bank case particularly in paragraph Nos.19 to 23 held that hearing of second case may be adjourned or may be stayed in order to <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">avoid the outcome of the appeal in the first case or otherwise filing of appeal would render res sub-judice and res judicata. No doubt the counsel appearing for the respondent in his argument vehemently contend referring the judgment of Rangamma case and also N.R.Dongre case of the Appellate Court and also in the case of Wander Ltd. referred supra that Appellate Court might take a different view is not a ground to interfere with the discretionary orders of injunction passed by the Trial Court and exercise of discretion cannot be the lightly interfered with by the Apex Court unless it is shown such exercise of discretion is unreasonable and capricious and these judgments will not comes to the aid of the respondents since while obtaining an order in the cause of action it is stated that High Court has refused to grant injunction and the said pleading is against the material on record and the IA has not been considered on merits and it discloses that the said IA would be considered along with the main appeal. When such being the case, the very exercise of discretion is nothing but unreasonable and capricious, since the Trial Court also while granting an order taken note of earlier findings and the same is questioned before this Court and not </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">attained its finality and Trial Court ought not to have comes to such a conclusion and I have already pointed out that the cause of action pleaded in both the suits are similar and not different. No doubt the counsel appearing for the respondent also relied upon the judgment of this Court that second suit is maintainable i.e. Smt.Shakuntalamma’s case, wherein the Court considering order 39 Rule a, b and c held that, both plaintiff and defendant can seek for the relief under Order 39 Rule 1(a), but in respect of Order 39 Rule 1(a) and 1(c), the suit is not barred and it is open to the defendant to maintain a separate suit and the same is also subject to the different cause of action. I have already pointed out that having perused the cause of action set out in both the suits are in respect of the same cause of action and no new cause of action that arise subsequent to filing of the suit and hence, the said judgment is also not comes to the aid of the respondents to maintain a separate suit and seek for an order of injunction. No doubt in the earlier suit injunction was refused to the appellants herein and Trial Court also discussed in length with regard to the claim made by the appellants and the same has not yet attained its finality and finality will be attained only </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">on consideration of appeal which is pending before the Court and when the judgment and decree of dismissal of suit is appealed before the Court, the Trial Court ought not to have considered the relief sought and the fact that appeal is pending before this Court is also brought to the notice of the Trial Court while considering the application filed under Order 39 Rule 1 and 2 and I have already pointed out that in the earlier suit also sought for restraining the respondents herein from putting up any construction and in the present suit filed by the respondents herein seeking the relief not to interfere with the construction work undertaken by the respondents and when such being the case, the Trial Court ought to have considered the said fact into consideration. If construction is continued it changes the very nature of the property and also it leads to multiplicity of proceedings. The respondents herein ought to have waited till disposal of the appeal which is pending before this Court i.e. R.F.A.No.1060/2020 and thereafter ought to have taken up the construction after the result of the appeal which is pending before this Court. It is nothing but suppressing the truth, the plaintiffs/respondents have obtained an order of injunction </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">stating that this Court has refused to grant an order of injunction and also relief sought is very clear that defendants/appellants herein became very active and started interfering with the work of construction including commencement of excavation of the project work. It has to be noted that in the earlier suit also the present appellants have sought for the relief of restraining the respondents herein to put up any construction and the same is subject matter of the earlier suit and sought relief against the defendant No.21 and in the present suit, the said defendant No.21 is also a plaintiff in the suit and when such materials are available before the Court, even though they dispute the grant contending that the grant of land an endorsement was given on Sunday i.e. on 10.8.1975 and the same is also observed in Trial Court in appreciating the earlier suit. But it is the contention of the appellants that only they have received endorsement on that day, but grant order is not on Sunday and unless the appeal which is pending before the Court is determined, it is nothing but amounts to sub-judice and the same is held in the judgment of the Apex Court in the State of Andhra Pradesh and others and in paragraph No.24 it is held that when an appeal is pending, </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">decree including findings on issues does not attained its finality, it amount to res-judice and not res judicata, since the same has not attained its finality to invoke the principles of res judicata and it amounts to res subjudice and I have already pointed out that cause of actions for both the suits are one and the same and when such being the case, the very approach of the Trial Court in granting an order of injunction is nothing but capricious and it amounts to perversity and the same is unreasonable and ought not to have granted the relief when the appeal was admitted before this Court is brought to the notice of the Trial Court and hence, the order impugned is liable to be set aside. The Trial Court has committed an error in granting an order of injunction when the appeal is pending, since the cause of action is not different and the same is similar in both the suits and the Trial Court ought to have taken note of pendency of the appeal which is pending before this Court and the very finding of the Trial Court in the earlier suit was questioned before this Court. I have already pointed out that the appeal filed before this Court is a statutory appeal and this Court has to consider both question of fact and question of law. Hence, the very approach of the Trial </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court is erroneous and it requires interference and as a result, the application filed before the Trial Court seeking the relief of temporary injunction in O.S.No.7245/2022 under Order 39 Rule 1 and 2 of CPC is liable to be rejected and hence, I answer the point as affirmative.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The appeal is allowed. </b></p>', '22277c8c62db9675b111a0ff0202d695.jpeg', '9499bcaf87fab3dcebde2fa3a5ecbb0e.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-12', 1, '', '', '2023-08-12 08:48:19', '2023-08-12 08:50:54');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3343, 'qxANAmyz9RFJ4sVZgC1HkrQiF', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘’Leaking highly sensitive defence data into dark web has the effect of destabilizing security of the nation’’. Karnataka High Court rejects plea of techie challenging criminal proceedings. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Siva Rama Krishna Vs Sasi Narkis Babu V and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Criminal Petition 1985 of 2023 decided on 28 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioner is before this Court calling in question\r\nregistration of crime in Crime No.12 of 2021 for offences punishable\r\nunder Sections 66, 66(F), 84(C) of the Information Technology Act,\r\n2008 (‘the Act’ for short) and Section 380 of the IPC and pending\r\nbefore the 1st Additional Chief Metropolitan Magistrate at Bengaluru.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Facts adumbrated, as borne out from the pleadings, are as\r\nfollows:-\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The petitioner claims to be a qualified degree holder in the\r\ndiscipline of Bachelor of Technology with specialization in Aerospace\r\nEngineering from Manipal University. The petitioner was appointed\r\nas an intern in a project in the Indian Institute of Science,\r\nBengaluru. The project was “Drag Reduction by heat transfer\r\nthrough convection” and it was in the Department of Aerospace\r\nEngineering at the Indian Institute of Science. While so working as\r\nan intern, the petitioner claims to have undergone a thorough inplant training and project work at HAL, ARDC in its design complex.\r\nThe petitioner further works as a Research Assistant at Manipal <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Academy of Higher Education and has produced certain experience\r\ncertificates for all the aforesaid works that he has performed. After\r\nworking as an intern, owing to a notification issued by the National\r\nAero Space Laboratory notifying the post of Senior Technical Officer\r\nGrade-III and finding himself eligible, the petitioner applies and he\r\nis selected for conduct of an interview. The interview was slated to\r\nbe held on 23-03-2022. Four days prior to the date of interview, the\r\npetitioner comes to be apprehended on 19-03-2022 on a crime that\r\nhad been registered long ago on 17-09-2021 for offences\r\npunishable as afore-quoted. On being taken into custody, the\r\npetitioner knocks at the doors of this Court in the subject writ\r\npetition calling in question the very registration of crime against\r\nhim in Crime No.12 of 2021.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">7. The afore-narrated facts are not in dispute. The petitioner\r\nbegins to work as an intern in the HAL Aircraft Research and Design\r\nCentre, Design Complex from 09.12.2015 to 05.01.2016 and\r\nundergoes in-plant training, on a no pay, no fee basis. Again he </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">works as an intern in the Department of Aero Space Engineering of\r\nthe Indian Institute of Science, Bengaluru from 20-05-2016 to 28-\r\n06-2016 for about one month. Later, the petitioner from 23-01-\r\n2017 up to 20-02-2017 has undergone training in the project\r\n“Stress Analysis of Gun Installation for a Typical Fighter Aircraft”.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>8. It appears that certain project from the Aeronautical\r\nDevelopment Agency of the Ministry of Defence, Government of\r\nIndia were entrusted to the Indian Institute of Science viz.,\r\n“Experimental Investigation of Lateral Instability <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Characteristics of AMCA at Moderate to High Angles of\r\nAttack-Phase-I”. The project was sanctioned and was sought to\r\nbe executed in the Department of Aero Space Engineering, Indian\r\nInstitute of Science. This was in the year 2012. It was an on-going\r\nproject. The project also sought a non-disclosure agreement from\r\nthe hands of the Indian Institute of Science, which was signed and\r\nexecuted as it was concerning defence of the nation. Another\r\nproject comes to be allotted to the Indian Institute of Science on\r\n17-11-2015 viz., “Design and Fabrication and Measurement of\r\nDynamic Derivatives on 1:20 scale AMCA model using Forced\r\nOscillating rig and Rotary Derivative Rig”. This project was\r\nundertaken by the Indian Institute of Science and completed on 10-\r\n01-2017. It is during the said period the petitioner was working as\r\nan intern in the very Department. Somewhere in the year 2021 it\r\ncomes to the notice of the Ministry of Defence that there has been\r\nsome foul play by persons working in the Aeronautical Development\r\nAgency and have leaked the data related to the organization. It is\r\nthen the Aeronautical Development Agency complains to the\r\njurisdictional Police in the Cyber Crime Division on 17-09-2021. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The submission of the learned counsel for the petitioner\r\nthat there has been delay as the crime is registered on 17-09-2021\r\nand the petitioner is apprehended only in March 2022 and\r\ntherefore, the proceedings should be quashed on that ground is, on <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the face of it, unacceptable, as the investigation in the nature of the\r\nkind that is necessary in the facts of the case at hand cannot be\r\nconcluded overnight, as they involve several intricate facts to be\r\ngone into. If on the plea of the petitioner the present proceedings\r\nare quashed against him, it would amount to putting a premium on\r\nthe activities of the petitioner who has acted in a manner that\r\nwould compromise security of the nation, as the petitioner has\r\nleaked the data of the Light Combat Aircraft under the Tejas\r\nprogramme development by the Aeronautical Development Agency.\r\nThe data that is leaked is of Aeronautical Technology which is used\r\nfor Advanced Medium Combat Aircraft, all of which form defence\r\ndocuments of the Ministry of Defence. The Investigating Officer,\r\nafter the arrest of the petitioner as on 18-04-2022 collected several\r\ndocuments in which the petitioner was involved and has leaked the\r\nsaid data. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Therefore, the petitioner has leaked into dark web highly sensitive\r\ndata which would have the effect of destabilizing defence of the\r\nnation. Any person indulging in any crime that would destabilize\r\nnation’s defence of any kind, even to its triviality, cannot be\r\ncountenanced. The petitioner wanting to project himself to be\r\ninnocent, in the teeth of the aforesaid facts, can only be a figment\r\nof his imagination. It is a matter to be investigated into and the\r\ninvestigation is yet to complete. The submission of the learned\r\ncounsel for the petitioner may seem to be shrouded with triviality,\r\nbut in effect, cascades or snowballs into threatening the defence of\r\nthe nation. The petitioner has leaked defence secrets with regard\r\nto installation of characteristics of moderate to high angles of attack </span><span style=\"font-size: 12pt;\">concerning aircrafts, its design, fabrication, measurement and\r\ndynamic derivates, into the dark web, all for enriching himself.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">10. It is in public domain that there are 3 classifications of\r\nweb/internet, one is the “worldwide web”, which requires a\r\nsearch from an operating search engine, this is on the periphery. A\r\nlittle deeper is the “deep web”, both of which, the surface web\r\ni.e., the worldwide web and the deep web are identifiable through\r\ntheir internet protocol address (IP address). Deeper to these two\r\nis the “dark web”, which requires special software solutions and in\r\nsome cases, software dependant information technology\r\nknowledge. Dark web is a sophisticated anonymous internet\r\nnetwork used by both criminals and other individuals for manifold\r\nreasons, necessity to regulate the usage of dark web has become\r\nthe need of the hour, as it provides anonymity, as the geo location\r\nis hidden. Such usage of dark web for defence secrets to be\r\nuploaded has devastating effect on national security. The\r\noccurrence of massive data theft and auction on the dark web has\r\nbeen a worrisome concern to all the nations, including ours.\r\nTherefore, it is necessary to investigate into the root of the data </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">thieving, uploading it on the dark web, for illegal financial gains and\r\nbring to book, persons involved in such acts of uploading sensitive\r\ndata of defence of the nation, on to the dark web and deal them\r\nwith iron hands.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b> 11. The learned Deputy Solicitor General of India and the\r\nlearned High Court Government Pleader on instructions, in unison\r\nwould submit that, the investigation is nearing completion and final\r\nreport would be placed before the concerned Court. Those\r\nsubmissions are placed on record. In such cases, the investigation\r\nis to be taken up on war footing and complete it in a time frame, so\r\nthat illegality would not perpetuate. More than 2 years have\r\npassed by, the matter is still at the stage of investigation. Though\r\nin certain cases time to investigate on deeper issues would be\r\nnecessary, but bearing that in mind as well, it should be the\r\nendeavour of the prosecution to conclude the investigation as\r\nexpeditiously as possible and file their final report. Four months\r\ntime, in the opinion of the Court, would be adequate.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>12. In the light of the aforesaid facts, no interference is called\r\nfor on the projection of innocence of the petitioner. Finding no\r\nmerit in the petition, the petition stands dismissed.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b> Consequently, I.A.No.1 of 2023 also stands disposed. </b><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'f81cac0d1ceed53c701653e2057f1ed2.jpeg', '4420d4e381e9ffa596f3bbae379ac81a.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-18', 1, '', '', '2023-08-16 13:29:16', '2023-08-18 06:40:14'),
(3344, 'PTVceMQkj9Z9mep8UU333ExlG', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘’LGBT community must be treated with all love and affection and not point at the infirmity that they have no control of.’’ Karnataka High rejects plea of co-workers charged with abetment to commit suicide. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Malathy S.B Vs State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 11745 of 2023 decided on 28 July 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The petitioners are before this Court calling in question the\r\nFIR registered in Crime No.151 of 2023 for offences punishable\r\nunder Sections 306 and 34 of the IPC.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>2. Shorn of unnecessary details, facts in brief, germane are as\r\nfollows:\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>The 1st petitioner is employed as Deputy General Manager in\r\nMarketing; the 2nd petitioner as Vice-President in Human Resources\r\nand the 3rd petitioner as Assistant Manager in Marketing at the\r\nLifestyle International Private Limited (‘the Company’ for short).\r\nOne Vivek Raj (now deceased) joins the services of the Company\r\nand works there between 2014 and 2016. This was the first stint of <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">employment of the deceased at the Company. It is averred that\r\nthe deceased was employed in multiple organizations in the same\r\nfield. Later it appears that the deceased comes back to the\r\nCompany in the year 2022 and he was offered the position of\r\nManager, Visual Merchandising at the Company. He accepts the\r\nemployment in September 2022. In the light of organizational\r\nstructure of functioning, the deceased was directed to report to\r\npetitioner No.1. Petitioner No.3 was his teammate and petitioner\r\nNo.2 was in-charge of Human Resources of the team. Therefore,\r\nthe petitioners were all involved directly with the deceased. Around\r\nthe month of February 2023, it appears that the deceased raised\r\nconcerns to the Human Resource Department regarding functioning\r\nof the 1st petitioner. The allegations were manifold as the concern\r\nof the deceased was that the 1st petitioner was demanding and\r\nasking him to micromanage the work and it was affecting his\r\nefficiency. It is further alleged that the 1st petitioner has spoken to\r\nthe deceased in a raised voice in every meeting and was putting\r\nhim down by cracking unsavory jokes. All the team members are\r\nsaid to have teased the deceased on his sexual orientation. On\r\n17-02-2023 the Human Resources Department held discussions </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">with the 1st petitioner and some suggestions were made to the\r\ndeceased as well. The deceased was always complaining about the\r\nusage of remarks against him on his sexual orientation.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>11. The genesis of the problem has a little history which\r\nrequires to be noticed. The deceased initially joined employment\r\nwith the landmark group, the Company on its layout Lifestyle. The\r\nfirst stint was between 2014 and 2016. There was no problem. He\r\nfinished his first stint and resigned. Next time he goes to the\r\nCompany in the year 2022. It is the second stint of the deceased in\r\nthe Company that forms the entire fulcrum of the lis. Organizational\r\nrelationship between the petitioners and the deceased is required to\r\nbe noticed. The 1st petitioner was the person to whom the deceased\r\nwas to report and the 2nd petitioner was a teammate along with the\r\ndeceased. The 3rd petitioner was the Manager. Therefore, all the\r\npetitioners have something to do with the deceased in the\r\norganization in his day to-day functioning. The functioning and the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">aforesaid organizational structure form the fulcrum of the\r\nallegations against the petitioners by the deceased. On 17-02-2023\r\nthe deceased flagged certain concerns. This forms the first of the\r\ncommunications to one Nidhi Sood about the manner in which the\r\nteammates are treating the deceased</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>12. Due to the harassment meted out to the deceased, the\r\ndeceased registers a complaint against the petitioners alleging that <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">he has been harassed and being made castigatious remarks which\r\nwould become an offence under the provisions of the 1989 Act as\r\nhe belonged to Scheduled Caste. The complaint was taken on\r\n03.06.2023 and a crime was registered for offences punishable\r\nunder Section 3(1)(r) and (s) of the 1989 Act under Crime No.141\r\nof 2023. The issue in the case at hand does not concern the said\r\ncrime. On the same day of venting his grievance with regard to the\r\naforesaid circumstance, the deceased commits suicide and on his\r\ncommission of suicide, a complaint comes to be registered by his\r\nfather on 04-06-2023 before the jurisdictional police against the\r\npetitioners.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">It is barely three days after registration of the FIR, the present\r\npetition is filed and today, it is barely 49 days of registration of the\r\nFIR. The investigation is still in progress. It is not a case where\r\nthere is no prima facie material or the allegations are made in thin\r\nair. Cases which involve death of a person and the accused are\r\nguilty of abetment to suicide of the said victim will have to be\r\nconsidered owing to the facts of each case. There cannot be any\r\nparticular parameter; yardstick; or a theorem for interference,\r\nparticularly, in cases of abetment to suicide. If the accused by their\r\nalleged acts have played an active role in tarnishing or destroying\r\nthe self esteem of a hypersensitive person or even their self\r\nrespect, would definitely become guilty of commission of abetment\r\nto suicide; if the accused have kept on irritating or annoying the\r\ndeceased by words or deeds, provoking them and driving them to </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">the wall, would also become circumstances that would be\r\ningredients of abetment, all prima facie. Delicate analysis of human\r\nbehavior that shrouds each case will have to be analysed, on a case\r\nto case basis. The human mind could be affected and would react\r\nin myriad ways, one such way could be ending of one’s life.\r\nTherefore, all these would be in the realm of disputed questions of\r\nfact and would require investigation in the least.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>1<i>3. In the aforesaid circumstances, it becomes apposite to\r\nrefer to the judgment of the Apex Court in the case of MAHENDRA\r\nK.C. v. STATE OF KARANTAKA wherein it is held as follows:</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>18. In this backdrop, it is impossible on a judicious\r\npurview of the contents of the complaint and the suicide\r\nnote for a judicial mind to arrive at a conclusion that a\r\ncase for quashing the FIR had been established. In\r\narriving at that conclusion, the Single Judge has\r\ntransgressed the well-settled limitations on the exercise\r\nof the powers under Section 482 CrPC and has\r\nencroached into a territory which is reserved for a\r\ncriminal trial. </i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i> 22. Based on the above precedent, the High Court\r\nwhile exercising its power under Section 482 CrPC to\r\nquash the FIR instituted against the second respondent- <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">accused should have applied the following two tests : (i)\r\nwhether the allegations made in the complaint, prima\r\nfacie constitute an offence; and (ii) whether the\r\nallegations are so improbable that a prudent man would\r\nnot arrive at the conclusion that there is sufficient ground\r\nto proceed with the complaint. Before proceeding further,\r\nit is imperative to briefly discuss the law on the abetment\r\nof suicide to determine if a prima facie case under Section\r\n306 IPC has been made out against the respondentaccused.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>27. While adjudicating on an application under\r\nSection 482 CrPC, the High Court in the present case\r\ntravelled far away from the parameters for the exercise\r\nof the jurisdiction. Essentially, the task before the High\r\nCourt was to determine whether the allegations made in\r\nthe first information report or the complaint, even if they\r\nare taken at their face value and accepted in their\r\nentirety did or did not prima facie constitute an offence or\r\nmake out a case against the accused.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>28. Instead of applying this settled principle, the\r\nHigh Court has proceeded to analyse from its own\r\nperspective the veracity of the allegations. It must be\r\nemphasised that this is not a case where the High Court\r\nhas arrived at a conclusion that the allegations in the FIR\r\nor the complaint are so absurd and inherently improbable <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">on the basis of which no prudent person could ever reach\r\na just conclusion that there is sufficient ground for\r\nproceeding against the accused. Nor is this a case where\r\nthe criminal proceeding is manifestly mala fide or has\r\nbeen instituted with an ulterior motive of taking\r\nvengeance on the accused. On the contrary, the specific\r\nallegations in the FIR and in the complaint find due\r\nreflection in the suicide note and establish a prima facie\r\ncase for abetment of suicide within the meaning of\r\nSections 306 and 107 IPC. The entire judgment [L.\r\nBheema Naik v. State of Karnataka, 2020 SCC OnLine Kar\r\n3395] of the High Court consists of a litany of surmises\r\nand conjectures and such an exercise is beyond the\r\ndomain of proceeding under Section 482 CrPC. The High\r\nCourt has proceeded to scrutinise what has been\r\ndisclosed during the investigation, ignoring that the\r\ninvestigation had been stayed by an interim order of the\r\nHigh Court, during the pendency of the proceedings under\r\nSection 482.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>29. The High Court observed that a prima facie case\r\nfor the commission of offence under Section 306 IPC is\r\nnot made out since : (i) the suicide note does not\r\ndescribe the specific threats; (ii) details of the alleged\r\ndemand of Rs 8 lakhs from the deceased by the\r\nrespondent-accused are not set out in the suicide note;\r\nand (iii) no material to corroborate the allegations\r\ndetailed in the suicide note has been unearthed by the\r\ninvestigating agency. The High Court observed that since\r\nthe deceased took considerable time to write a twelve\r\npage suicide note, “it would have been but natural for the\r\nauthor to set out the details”. The High Court has\r\nevidently travelled far beyond the limits of its inherent\r\npower under Section 482 CrPC since instead of\r\ndetermining whether on a perusal of the complaint, a\r\nprima facie case is made out, it has analysed the\r\nsufficiency of the evidence with reference to the suicide\r\nnote and has commented upon and made strong\r\nobservations on the suicide note itself.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">31. The Single Judge, other than deciding on the\r\nmerits of the case while exercising the power under </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Section 482 CrPC, has also made observations\r\ndiminishing the importance of mental health. The mental\r\nhealth of a person cannot be compressed into a one-sizefits-all approach. In para 37 of the impugned judgment\r\n[L. Bheema Naik v. State of Karnataka, 2020 SCC OnLine\r\nKar 3395], the Single Judge observed: (L. Bheema Naik\r\ncase [L. Bheema Naik v. State of Karnataka, 2020 SCC\r\nOnLine Kar 3395], SCC OnLine Kar)\r\n“</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>37. It is not the case of the deceased that\r\nthe accused had deprived him of his wealth or\r\nhave committed acts that have shattered his\r\nhopes in life or separated him from his family\r\nand friends.”\r\nThe Single Judge then makes the following observation in\r\nparas 41 and 43: (L. Bheema Naik case [L. Bheema\r\nNaik v. State of Karnataka, 2020 SCC OnLine Kar 3395] ,\r\nSCC OnLine Kar)\r\n“</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">41. … It is not the case of the prosecution\r\nthat the deceased was running away from or\r\nescaping the petitioner or his henchmen, but as\r\nis his habit, to visit his parents and to spend time\r\nwith his friends. If the deceased had really felt\r\nthreatened, he would have definitely approached\r\nthe police. It is not that he was naive or not\r\nworldly-wise. If his employment with the\r\npetitioner was true, then the Police\r\nCommissionerate was only a stone\'s throw away.\r\nIt is not that the deceased was a weakling. The\r\ndeceased by profession, is a driver. A profession\r\nwhere, accidents causing loss of life and limb are\r\na daily occurrence and every driver is aware that\r\nhe could be involved in an accident at any time.</span><br></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>43. His act of attending a relatives\r\nmarriage in a different town and his interacting\r\nwith friends and relatives are all actions of a\r\nnormal person and not of a person under severe\r\nduress. The contention that this criminal case\r\nwould jeopardise his career progression also <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">cannot be brushed aside. It is also not\r\nforthcoming as to how he sourced the poison.”</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>32. The Single Judge has termed a person who\r\ndecided to commit suicide a “weakling” and has also\r\nmade observations on how the behaviour of the deceased\r\nbefore he committed suicide was not that of a person\r\nwho is depressed and suffering from mental health\r\nissues. Behavioural scientists have initiated the discourse\r\non the heterogeneity of every individual and have\r\nchallenged the traditional notion of “all humans behave\r\nalike”. Individual personality differences manifest as a\r\nvariation in the behaviour of people. Therefore, how an\r\nindividual copes up with a threat—both physical and\r\nemotional, expressing (or refraining to express) love,\r\nloss, sorrow and happiness, varies greatly in view of the\r\nmulti-faceted nature of the human mind and emotions.\r\nThus, the observations describing the manner in which a\r\ndepressed person ought to have behaved deeply\r\ndiminishes the gravity of mental health issues.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>33. The High Court by its order [L. Bheema\r\nNaik v. State of Karnataka, 2020 SCC OnLine Kar 3395]\r\nhas prevented the completion of the investigation in the\r\ncomplaint registered as Crime No. 565 of 2016 pending\r\non the file of the IInd Additional Civil Judge (Junior\r\nDivision) and JMFC Court, Maddur, Mandya District. The\r\nalleged suicide is of a person who was working as a\r\ndriver of a Special Land Acquisition Officer, who is a\r\npublic servant and against whom serious and grave\r\nallegations of amassing wealth disproportionate to the\r\nknown sources of income were made by the deceased.\r\nThe suicide note contains a detailed account of the role of\r\nthe accused in the events which led to the deceased\r\ncommitting suicide. These are matters of investigation\r\nand possibly trial. The High Court stalled the investigation\r\nby granting an interim order of stay. If the investigation <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">had been allowed to proceed, there would have been a\r\nrevelation of material facts which would aid in the trial,\r\nfor the alleged offence against the second respondent.”</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Apex Court, in the afore-quoted judgment, also recognizes that\r\na person who is depressed and suffering from mental health issues\r\ncould be hypersensitive. Every individual is different and different\r\nindividual personality would manifest as a variation in the behavior\r\nof people and has held that quashment of the proceedings, at the\r\nstage of crime, is not a course of action that can be undertaken\r\nwhile exercising its jurisdiction under Section 482 of the Cr.P.C.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. Insofar as the submission of the learned senior counsel\r\nfor the petitioners that Section 41A Cr.P.C. notices are issued\r\ndespite an interim order operating in Crime No.141 of 2023 is again\r\nunacceptable. All the notices under Section 41A of the Cr.P.C.,\r\nissued to other employees need not be the concern of the\r\npetitioners, as those employees are not before this Court in the\r\npresent proceedings. Even otherwise, the learned High Court\r\nGovernment Pleader, on instructions, would submit that permission <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the learned Magistrate is sought to include the offences under\r\nthe 1989 Act and then only notices are issued. Therefore, the said\r\nsubmission also fails.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">15. The deceased, in the case at hand, is the one belonging to\r\nLGBT community. The sensitivity of them being ostracized\r\npervades in the their psyche. Therefore, such people must be\r\ntreated with all love and affection and not point at the infirmity that\r\nthey have no control of. If every citizen would treat such citizens\r\nwith all love and care, as is done to a normal human, precious lives\r\nwould not be lost. Unfortunately, the precious life of a youth is lost\r\nin the case at hand, all for the prima facie allegations of pointing at\r\nsexual orientation of the deceased. Therefore, it is for every citizen\r\nto bear this in mind while interacting with sensitive people. It is\r\nnecessary that every one of us introspect on this issue, after all,\r\neveryone of them are human beings and all are worthy of\r\nequality.</span><span style=\"font-size: 12pt;\"> </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-size: 12pt;\">16. In the light of the judgment of the Apex Court and the\r\nfacts narrated hereinabove, there is no warrant of interference with\r\nthe registration of crime at this stage.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-size: 12pt;\"><b>17. For the aforesaid reasons, finding no merit in the petition,\r\nthe petition stands rejected. </b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '24cc0968e2c72a03e1cefc8e99f21aa7.jpeg', '15a31cec1f55517691231760f38a6703.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-17', 1, '', '', '2023-08-16 14:20:47', '2023-08-17 12:10:55'),
(3345, 'AnJ9AxibsODVbGFS3qW9xYx9H', 'TSUhvAg9KIuGOC5DrA7yLvekJ', '‘’A borrower is a borrower, whether he is a practising lawyer or a sitting Judge. Loan laws do not provide for favourable treatment to them when they become chronic defaulters.’’ Karnataka High Court.', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>N Ravindranath Kamath Vs Subramanyeshwara Co-Operative Bank Limited and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 3791 of 2021 decided on 7 August 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Krishna S Dixit.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">2. In these Petitions, Petitioner a designated Senior Advocate being a chronic loan defaulter of the 1st Respondent – Cooperative Bank is knocking at the doors of Writ Court for assailing the coercive loan recovery </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">proceedings instituted under the provisions of SARFAESI Act, 2002 on the ground that the due procedure established under law has not been followed. Learned Sr. Advocate appearing for the Petitioner argues that his client was not given the reprieve admissible on account of Covid -19 Pandemic and that he had no fair deal at the hands of the lender – Bank. Having so argued, he lastly said that should a period of three months be granted, entire loan amount would be cleared by recourse to ‘taking over’ or the like. </span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. Having heard the learned counsel for the parties and having perused the Petition papers, this Court declines indulgence in the matter for the following reasons:</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(a) The structure of banking in India comprises several categories of banks. Amongst these, the Cooperative Banks are registered as Cooperative Societies under the provisions of either the State Cooperative Societies Act(s) or the Multi-State Cooperative Societies Act, 2002. Respondent – Bank is registered under provisions of Karnataka Co-operative Societies Act, 1959. This Court takes judicial notice of the fact that in the recent past, several cooperative banks in the country have committed legal suicide owing to mindless lending coupled with culpable failure to recover the outstanding debts. This Court cannot leave it unsaid that a serious problem of cooperative credit is the overdue loans of the cooperative banks which have been continuously proliferating over the years. Large amounts of overdues restrict the recycling of funds and thereby, adversely affect the lending & borrowing capacity of the cooperative institutions. In fact, two statutory committees, viz., the Narasimham Committee and The Madhav Rao Committee had suggested stringent remedial actions in this regard. All <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">this needs to be briefly adverted to because, the first Respondent also happens to be a cooperative banking institution and therefore, it has to take all measures as are necessary for recovering the outstanding loans, speedily if not on a warfooting.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(b) The availment of loan is not in dispute; the amount specified as outstanding, is also not much in dispute; the subject property has been bought by the Petitioner from the loan amount in question. The Bank in all fairness agrees that the Petitioner on being served with a spate of notices, has repaid only a sum of Rs.62,42,183/- that too as on 06.07.2020. However, that is not the end of matter since a gigantic sum of money still remains unpaid. The repayment of subject loan is secured by the mortgage of this property. When the loan remains unpaid despite notices, and the borrower continues recalcitrantly to be a defaulter, such loan account is endorsed as NPA; this happened to Petitioner’s loan account way back in 2017 itself. The Banks deal with</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">public money and therefore, they are subject to the doctrine of public trust. Banks and Financial Institutions are bound to take coercive action for the speedy recovery of outstanding loans. Even judicial intervention for such recovery is now statutorily minimized and banks themselves do it on their own. The 2002 Act is made inter alia with that object in mind. Cooperative Banks are brought within the beneficial fold of this Act vide Apex Court decision in PANDURANGA GANAPATI CHAUGULE vs. VISHWSARAO PATIL MURUGUD SAHAKARI BANK LTD., (2020) 9 SCC 215. Therefore, the coercive proceedings of loan recovery inevitably taken up by the Respondent-Bank under the provisions of the Act, cannot be faltered, no breach therein having been demonstrated.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(k) Petitioner has been playing all tactics to delay, if not defeat the claim of Bank. It is not that this is the only property which the petitioner owns; as already mentioned above. Admittedly, he owns properties in Coorg too. He had told the Bank way back in 2019-2020 that he would <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">sell these properties and pay off the outstanding debts. These words, he did not keep up with the excuse of intervening COVID-19 pandemic. Gone are those days now and still he has not prima facie demonstrated the endeavors made for disposing off the said properties. A lender cannot lend his ears for cock & bull stories of the borrower, endlessly. A writ court cannot grant indulgence to an unscrupulous litigant who does not keep up his words given repeatedly. A borrower is a borrower, whether he is a practising lawyer or a sitting Judge. Loan laws do not provide for favourable treatment to them differential qua other borrowers, when they become chronic defaulters. An argument to the contrary offends equality/parity in matters of loan recovery and therefore, cannot be countenanced. Showing any more indulgence in favour of the Petitioner would give scope for public criticism that courts are favouring the unscrupulous borrowers only because they happen to be in the legal fraternity.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>In the above circumstances, this writ petition being devoid of merits is liable to be dismissed and accordingly it is, costs having been reluctantly made easy. </b></p>', 'd0171a8683a7d60824702a51d3ed3a89.JPG', 'c25d6874ced303de8c6cf2545651eea4.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-18', 1, '', '', '2023-08-17 13:20:23', '2023-08-18 03:21:41');
INSERT INTO `judgements` (`judgement_id`, `judgement_key`, `judgement_category_key`, `judgement_title`, `judgement_desc`, `judgement_img`, `judgement_attachment`, `judgement_author`, `judgement_date`, `judgement_status`, `judgement_bookmark`, `judgement_like`, `judgement_date_added`, `judgement_date_updated`) VALUES
(3346, '2vcPYs2KDpxHCnOXPyxjXyqYp', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Explanation to Order XVII Rule 2 CPC empowering the court to proceed with the case when substantial portion of the evidence of any party has already been recorded does not apply when the defendant had not led any evidence at all. Supreme Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Y.P. Lele Vs Maharashtra State Electricity Distribution Company and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Civil Appeal 5155 of 2023 decided on 16 August 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice Vikram Nath and Justice Ahsanuddin Amanullah.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">3. The present appeal assails the correctness of\r\njudgment and order dated 27.06.2018 passed by the </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">learned Single Judge of the Bombay High Court in\r\nCivil Writ Petition No. 1488 of 2015 titled\r\n“Maharashtra State Electricity Board vs. Miraj\r\nElectric Supply Co. Ltd. Ors.”\r\n, whereby the petition\r\nwas allowed, the order dated 30.09.2014 passed by\r\nthe Trial Court allowing the application under order\r\nIX Rule 13 of the Code of Civil Procedure, 19081 was\r\nset aside and the ex parte decree was maintained.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>4. Shorn of unnecessary facts, Maharashtra State\r\nElectricity Board2 filed Special Civil Suit No. 125 of\r\n1988 in the Court of Civil Judge, Senior Division at\r\nSangli impleading Miraj Electric Supply Co. Ltd.3 as\r\ndefendant no. 1 and its five Directors as defendant\r\nnos. 2 to 6 for recovery of Rs. 1,42,85,177.47/- with\r\ncosts of suit and further praying for interest at the\r\nrate of 18% per annum from the date of presentation <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">of the suit till realisation of the aforesaid amount. The\r\ndefendants appeared and filed their written\r\nstatements. The plaintiff’s evidence was being led and\r\nat that stage the counsel for the defendants Shri.\r\nM.B. Karmarkar withdrew his Vakalatnama vide Ex.\r\n112. He had also not cross-examined the witnesses.\r\nThe Trial Court, on 04.12.2004, directed for suit to\r\nproceed under Order XVII Rule 2 of CPC against the\r\ndefendants. Thereafter the Trial Court proceeded to\r\nrecord the evidence of the plaintiff and, vide\r\njudgement and order dated 29.01.2005, decreed the\r\nsuit ex parte with costs</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>14. Before proceeding to consider the submissions,\r\nit would be appropriate to reproduce Order XVII Rule\r\n2 CPC, which reads as follows:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“2. Procedure if parties fail to appear on\r\nday fixed. - Where, on any day to which\r\nthe hearing of the suit is adjourned, the\r\nparties or any of them fail to appear, the\r\nCourt may proceed to dispose of the suit in\r\none of the modes directed in that behalf by <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Order IX or make such other order as it\r\nthinks fit.\r\nExplanation.-Where the evidence or a\r\nsubstantial portion of the evidence of any\r\nparty has already been recorded and such\r\nparty fails to appear on any day to which\r\nthe hearing of the suit is adjourned, the\r\nCourt may, in its discretion, proceed with\r\nthe case as if such party were present.”</span></i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>15. It would also be relevant to reproduce Order IX\r\nRule 13 which reads as follows:\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“Setting aside decree ex parte against\r\ndefendant-In any case in which a decree\r\nis passed ex-parte against a defendant, he\r\nmay apply to the Court by which the decree\r\nwas passed for an order to set it aside; and\r\nif he satisfies the Court that the summons\r\nwas not duly served, or that he was\r\nprevented by any sufficient cause from\r\nappearing when the suit was called on for\r\nhearing, the Court shall make an order\r\nsetting aside the decree as against him\r\nupon such terms as to costs, payment into\r\nCourt or otherwise as it thinks fit, and\r\nshall appoint a day for proceeding with the\r\nsuit:\r\nProvided that where the decree is of such a\r\nnature that it cannot be set aside as against such defendant only it may be set\r\naside as against all or any of the other\r\ndefendants also:\r\nProvided further that no Court shall set\r\naside a decree passed ex parte merely on\r\nthe ground that there has been an\r\nirregularity in the service of summons, if it\r\nis satisfied that the defendant had notice\r\nof the date of hearing and had sufficient\r\ntime to appear and answer the plaintiffs\r\nclaim.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>Explanation- Where there has been an\r\nappeal against a decree passed ex parte\r\nunder this rule, and the appeal has been\r\ndisposal of on any ground other than the\r\nground that the appellant has withdrawn\r\nthe appeal, no application shall lie under\r\nthis rule of setting aside the ex parte\r\ndecree.”<span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><br></span><span style=\"font-size: 12pt;\"> </span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>16. A plain reading of Order IX Rule 13 makes it\r\napparent that where in a case, a decree is passed ex\r\nparte against defendant, a party may apply to the\r\nCourt for setting aside the same for reasons satisfying\r\nthe Court regarding non-appearance.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>17. Coming to Order XVII Rule 2 CPC, it would be\r\napparent that if the parties or any one of them failed\r\nto appear on a day to which the hearing of the suit is\r\nadjourned, the Court may proceed to dispose of the\r\nsuit in one of the modes directed in that behalf by\r\nOrder IX or make such other order as it deems fit.\r\n</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>18. In the present case, the defendants did not\r\nappear on 04.12.2004, nor their counsel appeared as\r\nhe had already withdrawn his Vakalatnama by a\r\nwritten request. The Trial Court directed for the suit\r\nto proceed under Order XVII Rule 2 CPC against the\r\ndefendants. The effect of the order dated 04.12.2004\r\nwas that the Trial Court could have proceeded to\r\ndispose of the suit in one of the modes directed in\r\nthat behalf by Order IX CPC. Coming back to Order\r\nIX CPC, it is to be noticed that under Rule 6 thereof\r\nwhere summons are duly served and the defendant\r\ndoes not appear when the suit is called on for <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">hearing, then the Court may make an order that the\r\nsuit be heard ex parte. This is in fact the procedure\r\nadopted by the Trial Court in the present case.\r\nAccordingly, after the evidence of the plaintiff was\r\nconcluded and the defendant continued to remain\r\nabsent, the Trial Court decreed the suit ex parte, vide\r\njudgment dated 29.01.2005. The operative portion\r\nthereof clearly mentions that the suit is decreed ex\r\nparte.</span><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>19. Now coming to the explanation, what is stated\r\ntherein is that where the evidence or a substantial\r\nportion of the evidence of any party has already been\r\nrecorded and such party fails to appear on any day\r\nto which the hearing of the suit is adjourned, the\r\nCourt would be at liberty to proceed with the case as\r\nif such party were present. Two phrases are\r\nimportant in the explanation “any party” and “such\r\nparty”. “Any party” refers to the party which has led <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">evidence or substantial evidence and “such party”\r\nrefers to that very party which has led evidence or\r\nsubstantial evidence. What is discernible is that\r\nunder Order XVII Rule 2, the Court would proceed to\r\npass orders with respect to any of the parties being\r\nabsent or both the parties being absent. Whereas the\r\nexplanation is confined to record the presence of that\r\nparty and that party alone, which has led evidence or\r\nsubstantial evidence and has thereafter failed to\r\nappear. In the present case, admittedly the suit was\r\nat the stage of plaintiff’s evidence as is apparent from\r\nthe order dated 04.12.2004. The evidence of the\r\ndefendants had not even started and the defendants’\r\ncounsel had not even cross-examined the plaintiff’s\r\nevidence.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>20. The explanation in the present case could have\r\nbeen invoked only if the plaintiff, after adducing his\r\nevidence or substantial evidence, failed to appear, the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court could have recorded his presence while\r\ndisposing of the suit. But once the defendant had not\r\nled any evidence at all, the explanation could not be\r\ninvoked as against the defendant/appellant. The\r\nHigh Court committed an error in applying the\r\nexplanation to Order XVII Rule 2 CPC and based\r\nupon it holding that an application under Order IX\r\nRule 13 CPC would not be maintainable as the\r\npresence of the defendant would be deemed to be\r\nrecorded at the time of disposal of the suit.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>21. As a matter of fact, once the counsel had\r\nwithdrawn his Vakalatnama, in normal course, the\r\nTrial Court ought to have issued notice to the\r\ndefendants to engage another counsel, which it did\r\nnot do and proceeded ex parte. The Trial Court\r\ncommitted an error in doing so. Further, the Trial\r\nCourt, in its wisdom and discretion having allowed\r\nthe application under Order IX Rule 13 CPC, the High <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Court ought to have refrained itself from interfering\r\nwith an order which advanced the cause of justice by\r\naffording opportunities to both the parties so that the\r\nsuit could be decided on merits.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n22. For all the reasons recorded above, we are\r\nunable to uphold the impugned order of the High\r\nCourt. The appeal is allowed. The impugned order of\r\nthe High Court is set aside. The Trial Court will\r\nproceed to decide the Special Civil Suit on its own\r\nmerits, after giving due opportunities to the parties\r\nand strictly proceed in accordance with law.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n23. Once the ex parte decree has been set aside, the\r\namount of 50% deposited by the appellant needs to\r\nbe suitably accounted for. It is true that under Order\r\nIX Rule 13 CPC, the Court, while allowing the\r\napplication, could impose such terms and conditions\r\nas it deems fit and this being a money decree, the\r\nTrial Court could have required the appellant to</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">deposit some amount. The appellant is one of the five\r\nDirectors of the defendant no.1. Although the relief\r\nclaimed was for joint and several liability of each of\r\nthe Directors, in our view the deposit of 50% at the\r\nhands of appellant above would be too excessive. We\r\naccordingly provide that the amount deposited by the\r\nappellant under the order of this Court, which is lying\r\nin the Trial Court, may be adjusted as follows:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>\r\n(i). 20% of the suit claim, along with interest\r\naccrued thereon, may be retained by the Trial\r\nCourt and may continue to deposit the same in\r\nthe Fixed Deposit initially for a period of six\r\nmonths, renewable on an automatic basis, till\r\nfurther orders are passed in that regard,\r\ndepending upon the outcome of the suit;</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n(ii). Whereas 30%, along with accrued interest\r\nthereon, may be returned to the appellant\r\nwithin four weeks of the date of filing of this </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">order before the Trial Court along with an\r\napplication for return of amount as directed\r\nabove.\r\n</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>24. No order as to costs.\r\n</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b>25. Pending application, if any, stand disposed of.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', 'e19c901777f816312a296264e5884180.jpeg', 'b016bbe10dc606561594034ebb3f3658.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-19', 1, '', '', '2023-08-17 13:31:49', '2023-08-19 06:51:34'),
(3356, 'y2Kk0f7XmCuLxFbXyZqdP9a1S', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'Karnataka Police Act. Externment takes away fundamental right and shall not to be passed as a matter of course but to be resorted in extraordinary circumstances and meet Article 19 (5) of the Constitution of India. Karnataka High Court. ', '<p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Mahantayya Vs The State of Karnataka and others.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Writ Petition 104804 of 2023 decided on 8 August 2023.<o:p></o:p></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>Justice M. Nagaprasanna.</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b>4. Facts, in brief, germane are as follows:</b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><b> The petitioner is a resident of Bailhongal. The\r\npetitioner gets embroiled in 3 crimes, all for offences\r\npunishable under Section 78(3) of the Karnataka Police\r\nAct, 1963 (‘Act’ for short). The first of the crime was <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">registered in the year 2015; the next in 2021 and the third\r\nin the year 2022, all for the aforesaid offence. The offence\r\nunder Section 78(3) of the Act is admittedly noncognizable. It transpires that those cases which were in\r\nCrime Nos.41 of 2015, 127 of 2021 and 78 of 2022 have\r\nall been closed on imposition of fines. Notwithstanding\r\ntheir closure, a report appears to have been generated\r\nagainst the petitioner that he is involved in the aforesaid 3\r\ncrimes and on that score he has to be externed from\r\nBailhongal to any other place. The said report against the\r\npetitioner is communicated to the petitioner to show cause\r\nas to why an order of externment should not be passed\r\nagainst him. The petitioner appears before the Assistant\r\nCommissioner and puts up his defence. Notwithstanding\r\nthe said defence, the order of externment comes to be\r\npassed by the Assistant Commissioner on 28.07.2023. It\r\nis this order that is called in question in the subject\r\npetition.</span></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><span lang=\"EN-US\">8. Before embarking upon consideration of the\r\ncase on its merits, I deem it appropriate to notice the legal </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">frame work under which an order of externment could be\r\npassed against any person. Chapter-II of the Act deals\r\nwith dispersal of gangs and bodies of persons convicted of\r\ncertain offences. Section 54 deals with dispersal of gangs\r\nand bodies of persons which is applicable to the case at\r\nhand. What is germane to be noticed is Sections 55 to 60\r\nand they read as follows:-</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><br></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>“55. Removal of persons about to\r\ncommit offences.—Whenever it shall appear in\r\nthe City of Bangalore and other areas for\r\nwhich a Commissioner has been appointed\r\nunder section 7 to the Commissioner, and in\r\nother area or areas to which the Government\r\nmay, by notification in the official Gazette,\r\nextend the provision of this section, to the\r\nDistrict Magistrate, or the Sub-Divisional\r\nMagistrate having jurisdiction and specially\r\nempowered by the Government in that\r\nbehalf,—</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(a) that the movements or acts of any\r\nperson are causing or calculated to cause\r\nalarm, danger or harm to person or property,\r\nor</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">\r\n(b) that there are reasonable grounds\r\nfor believing that such person is engaged or is\r\nabout to be engaged in the commission of an\r\noffence involving force or violence or an\r\noffence punishable under Chapter XII, XVI or\r\nXVII of the Indian Penal Code, or in the\r\nabetment of any such offence, and when in\r\nthe opinion of such officer witnesses are not\r\nwilling to come forward to give evidence in</span><span style=\"font-size: 12pt;\"> </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">public against such person by reason of\r\napprehension on their part as regards the\r\nsafety of their person or property, or</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>\r\n(c) that an outbreak of epidemic\r\ndisease is likely to result from the continued\r\nresidence of an immigrant,\r\nthe said officer may, by an order in\r\nwriting duly served on him, or by beat of drum\r\nor otherwise as he thinks fit, direct such\r\nperson or immigrant so to conduct himself as\r\nshall seem necessary in order to prevent\r\nviolence and alarm or the outbreak or spread\r\nof such disease or to remove himself outside\r\nthe area within the local limits of his\r\njurisdiction or such area and any district or\r\ndistricts or any part thereof contiguous\r\nthereto by such route and within such time as\r\nthe said officer may specify and not to enter,\r\nor return to the said place from which he was\r\ndirected to remove himself.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>56. Removal of persons convicted of\r\ncertain offences.—If a person has been\r\nconvicted at any time either before or after\r\nthe commencement of this Act,—</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(a) of an offence under Chapter XII,\r\nXVI or XVII of the Indian Penal Code (Central\r\nAct 45 of 1860); or</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(b) of an offence under section 6 of 13\r\nof the Mysore Mines Act, 1906 (Mysore Act 4\r\nof 1906); or</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(c) of an offence under section 86 of\r\nthe Karnataka Forest Act, 1963 (Karnataka\r\nAct 5 of 1964); or</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(d) twice of an offence under Section\r\n19 of the Mysore Prohibition of Beggary Act,\r\n1944 (Mysore Act 33 of 1944) or any other </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">corresponding law in force in any area of the\r\nState; or</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(e) twice of an offence under the\r\nSuppression of Immoral Traffic in Women and\r\nGirls Act, 1956 (Central Act 104 of 1956); or</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(f) twice of an offence under the\r\nUntouchability (Offences) Act, 1955 (Central\r\nAct 22 of 1955); or</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(g) thrice of an offence within a period\r\nof three years under section 78, 79 or 80 of\r\nthis Act; or</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(h) thrice of an offence within a period\r\nof three years under sections 32, 34, 37 or\r\n38A of the Karnataka Excise Act 1965,\r\n(Karnataka Act 21 of 1966),\r\nthe Commissioner, the District\r\nMagistrate, or any Sub-divisional Magistrate\r\nspecially empowered by the Government in\r\nthis behalf, if he has reason to believe that\r\nsuch person is likely again to engage himself\r\nin the commission of an offence similar to that\r\nfor which he was convicted, may direct such\r\nperson to remove himself outside the area\r\nwithin the local limits of his jurisdiction or\r\nsuch area or any district or districts or any\r\npart thereof contiguous thereto, by such route\r\nand within such time as the said officer may\r\nspecify and not to enter or return to the place\r\nfrom which he was directed to remove\r\nhimself.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Explanation.—For the purpose of this\r\nsection “an offence similar to that for which a\r\nperson was convicted” shall mean,—\r\n(i) in the case of a person convicted of\r\nan offence mentioned in clause (a), an offence </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">falling under any of the Chapters of the Indian\r\nPenal Code mentioned in that clause; and\r\n(ii) in the case of person convicted of\r\nan offence mentioned in clauses (e) and (f),\r\nan offence falling under the provisions of the\r\nActs mentioned respectively in the said\r\nclauses.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>57. Period of operation of orders under\r\nsection 54, 55 or 56.—A direction made under\r\nsection 54, 55 or 56 not to enter any\r\nparticular area or such area and any district or\r\ndistricts or any part thereof, contiguous\r\nthereto shall be for such period as may be\r\nspecified therein and shall in no case exceed a\r\nperiod of two years from the date on which it\r\nwas made.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>\r\n58. Hearing to be given before an order\r\nis passed under section 54, 55 or 56.—</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">(1)\r\nBefore an order under section 54, 55 or 56 is\r\npassed against any person, the officer acting\r\nunder any of the said sections or any officer\r\nabove the rank of an Inspector authorised by\r\nthat officer shall inform the person in writing\r\nof the general nature of the material\r\nallegations against him and give him a\r\nreasonable opportunity of tendering an\r\nexplanation regarding them. If such person\r\nmakes an application for the examination of\r\nany witness, produced by him, the authority\r\nor officer concerned shall grant such\r\napplication and examine such witness, unless\r\nfor reasons to be recorded in writing the\r\nauthority or officer is of opinion that such\r\napplication is made for the purpose of\r\nvexation or delay. Any written statement put\r\nin by such person shall be filed with the\r\nrecord of the case. Such person shall be\r\nentitled to appear before the officer\r\nproceeding under this section by a legal </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">practitioner for the purposes of tendering his\r\nexplanation and examining the witnesses\r\nproduced by him.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>(2) The authority or officer proceeding\r\nunder sub-section (1) may, for the purpose of\r\nsecuring the attendance of any person against\r\nwhom any order is proposed to be made under\r\nsection 54, 55 or 56 require such person to\r\nappear before him and to furnish a security\r\nbond with or without sureties for such\r\nattendance during the inquiry. If the person\r\nfails to furnish the security bond as required\r\nor fails to appear before the officer or\r\nauthority during the inquiry, it shall be lawful\r\nto the officer or authority to proceed with the\r\ninquiry and thereupon such order as was\r\nproposed to be passed against him may be\r\npassed.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i>59. Appeal.—Any person aggrieved by an\r\norder made under section 54, 55 or 56 may\r\nappeal to the Government within thirty days\r\nfrom the date of such order.</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><i> 60. Finality of orders.—Any order passed\r\nunder section 54, 55 or 56 or by the\r\nGovernment under section 59 shall not be\r\ncalled in question in any court except on the\r\nground that the authority making the order or\r\nany officer authorised by it had not followed\r\nthe procedure laid down in sub-section (1) of\r\nsection 58 or that there was no material\r\nbefore the authority concerned upon which it\r\ncould have based its order or on the ground\r\nthat the said authority was not of opinion that\r\nwitnesses were unwilling to come forward to\r\ngive evidence in public against the person in\r\nrespect of whom an order was made under\r\nsection 55.\"</i></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>Section 55 is removal of persons who were about to\r\ncommit offences. Whenever it appears in the city of\r\nBangalore or other areas that movements or acts of any\r\nperson are causing or calculated to cause alarm, danger or\r\nharm to person or property, such person can be removed\r\nfrom that area by passing an order of externment. Section\r\n56 deals with removal of persons convicted of certain\r\noffences. Section 57 deals with period of operation of\r\norders passed under Sections 54, 55 or 56. Therefore,\r\nSection 57 mandates that the period should be indicated in\r\nthe order. Section 58 mandates that an opportunity of\r\nhearing should be rendered to the person against whom\r\nthe order is to be passed under Sections 54, 55 or 56.\r\nSection 59 permits any person aggrieved by orders passed\r\nunder Sections 54, 55 or 56 to appeal to the Government\r\nwithin 30 days from the date of such order. This is the\r\nstatutory frame work under which orders of externment\r\ncan be passed against any person. </b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>9. The cases against the petitioner are as aforenarrated. The first one is registered way back in the year\r\n2015; second one in the year 2021 and the third one in\r\nthe year 2022. All for offences punishable under Section\r\n78(3) of the Act and all the three have been closed by\r\nimposing penalty by the concerned Court. Therefore, as on\r\ndate, the situation is that the petitioner is not embroiled in\r\nany crime and the crimes that were pending against the\r\npetitioner were all for non-cognizable offences, as aforenarrated. In terms of Section 56(g) externment can be\r\npassed, if one gets involved for offences under Sections\r\n78, 79 & 80 of the Karnataka Police Act, but it has to be\r\nthrice within three years, this is not the situation in the\r\ncase at hand.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>What is projected is that the petitioner is a dreaded\r\ncriminal and has the capacity to disturb peace of the\r\nsurrounding area and has in no way reformed himself from\r\nout of the crimes that he has committed and therefore,\r\nthe order of externment is passed externing the petitioner\r\nfrom Bailhongal Sub-Division to Bagalkot District for a\r\nperiod of three months. If the order is read on the\r\nbedrock of the offences and the statute, it would become a\r\nclassic case of misuse of power for curtailment of\r\nfundamental right of a person. It is not in dispute that\r\nwhat is taken away by externing a person is his\r\nfundamental right and such power of taking away\r\nfundamental right is not to be passed as a matter of\r\ncourse, but will have to be resorted to, sparingly in\r\nextraordinary circumstances, as right to movement is what\r\nis provided to a citizen under Article 19(1)(d) of the\r\nConstitution of India. Reference being made to the\r\njudgment of the Apex Court in the case of DEEPAK v.\r\nSTATE OF MAHARASHTRA wherein interpreting <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Maharashtra Police Act which is in pari materia with the\r\nAct the Apex Court holds as follows:</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>“6. We have given careful\r\nconsideration to the submissions. Under\r\nclause (d) of Article 19(1) of the\r\nConstitution of India, there is a fundamental\r\nright conferred on the citizens to move\r\nfreely throughout the territory of India. In\r\nview of clause (5) of Article 19, State is\r\nempowered to make a law enabling\r\ntheimposition of reasonable restrictions on\r\nthe exercise of the right conferred by\r\nclause (d). An order of externment passed\r\nunder provisions of Section 56 of the 1951\r\nAct imposes a restraint on the person\r\nagainst whom the order is made from\r\nentering a particular area. Thus, such orders\r\ninfringe the fundamental right guaranteed\r\nunder Article 19(1)(d). Hence, the\r\nrestriction imposed by passing an order of\r\nexternment must stand the test of\r\nreasonableness.</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>9. As observed earlier, Section 56\r\nmakes serious inroads on the personal\r\nliberty of a citizen guaranteed under Article\r\n19(1)(d) of the Constitution of India. In the\r\ncase of Pandharinath Shridhar Rangnekar v <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">Dy. Commr. of Police, State of Maharashtra1\r\nin paragraph 9, this Court has held that the\r\nreasons which necessitate or justify the\r\npassing of an extraordinary order of\r\nexternment arise out of extraordinary\r\ncircumstances. In the same decision, this\r\nCourt held that care must be taken to\r\nensure that the requirement of giving a\r\nhearing under Section 59 of the 1951 Act is\r\nstrictly complied with. This Court also held\r\nthat the requirements of Section 56 must be\r\nstrictly complied with.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">10. There cannot be any manner of\r\ndoubt that an order of externment is an\r\nextraordinary measure. The effect of the\r\norder of externment is of depriving a citizen\r\nof his fundamental right of free movement\r\nthroughout the territory of India. In\r\npractical terms, such an order prevents the\r\nperson even from staying in his own house\r\nalong with his family members during the\r\nperiod for which this order is in\r\nsubsistence. In a given case, such order\r\nmay deprive the person of his livelihood. It\r\nthus follows that recourse should be taken\r\nto Section 56 very sparingly keeping in mind\r\nthat it is an extraordinary measure. For\r\ninvoking clause (a) of sub-section (1) of\r\nSection 56, there must be objective material\r\non record on the basis of which the\r\ncompetent authority must record its\r\nsubjective satisfaction that the movements\r\nor acts of any person are causing or\r\ncalculated to cause alarm, danger or harm\r\nto persons or property. For passing an order\r\nunder clause (b), there must be objective\r\nmaterial on the basis of which the\r\ncompetent authority must record\r\nsubjective satisfaction that there are\r\nreasonable grounds for believing that such </span><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">person is engaged or is about to be engaged\r\nin the commission of an offence involving\r\nforce or violence or offences punishable\r\nunder Chapter XII, XVI or XVII of the IPC.\r\nOffences under Chapter XII are relating to\r\nCoin and Government Stamps. Offences\r\nunder Chapter XVI are offences affecting\r\nthe human body and offences under Chapter\r\nXVII are offences relating to the property.\r\nIn a given case, even if multiple offences\r\nhave been registered which are referred in\r\nclause (b) of sub-section (1) of Section 56\r\nagainst an individual, that by itself is not\r\nsufficient to pass an order of externment\r\nunder clause (b) of sub- section (1) of\r\nSection 56. Moreover, when clause (b) is\r\nsought to be invoked, on the basis of\r\nmaterial on record, the competent authority\r\nmust be satisfied that witnesses are not\r\nwilling to come forward to give evidence\r\nagainst the person proposed to be externed\r\nby reason of apprehension on their part as\r\nregards their safety or their property. The\r\nrecording of such subjective satisfaction by\r\nthe competent authority is sine qua non for\r\npassing a valid order of externment under\r\nclause (b).</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>13. Considering the nature of the\r\npower under Section 56, the competent\r\nauthority is not expected to write a\r\njudgment containing elaborate reasons.\r\nHowever, the competent authority must\r\nrecord its subjective satisfaction of the <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">existence of one of the grounds in subsection (1) of Section 56 on the basis of\r\nobjective material placed before it. Though\r\nthe competent authority is not required to\r\nrecord reasons on par with a judicial order,\r\nwhen challenged, the competent authority\r\nmust be in a position to show the\r\napplication of mind. The Court while testing\r\nthe order of externment cannot go into the\r\nquestion of sufficiency of material based\r\non which the subjective satisfaction has\r\nbeen recorded. However, the Court can\r\nalways consider whether there existed any\r\nmaterial on the basis of which a subjective\r\nsatisfaction could have been recorded. The\r\nCourt can interfere when either there is no\r\nmaterial or the relevant material has not\r\nbeen considered. The Court cannot interfere\r\nbecause there is a possibility of another\r\nview being taken. As in the case of any\r\nother administrative order, the judicial\r\nreview is permissible on the grounds of\r\nmala fide, unreasonableness or\r\narbitrariness.</span></i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><i>15. As the order impugned takes\r\naway fundamental right under Article\r\n19(1)(d) of the Constitution of India, it\r\nmust stand the test of reasonableness\r\ncontemplated by clause (5) of Article 19.\r\nConsidering the bare facts on record, the\r\nsaid order shows non-application of mind\r\nand smacks of arbitrariness. Therefore, it\r\nbecomes vulnerable. The order cannot be\r\nsustained in law.\"</i></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>The Apex Court clearly holds that it must stand the test of\r\nreasonableness as contemplated in Clause-5 of Article 19\r\nof the Constitution of India for an externment order to be\r\npassed and bare scrutiny at the hands of the constitutional\r\ncourts.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b><br></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>10. The crux of the afore-quoted provisions of law\r\nwhich empower externment of a person would\r\nundoubtedly mean that there should be minimum\r\nproximity or necessity for passing an order of externment.\r\nThere is no proximate incident that is narrated in the\r\nimpugned order. Without any foundation the order\r\nprojects the petitioner as a bane to the society or the\r\nsurrounding area. Therefore, in the considered view of\r\nthis Court, the order impugned would not stand the test of\r\nreasonableness as obtaining under Article 19(5) of the\r\nConstitution of India. If the facts of the case are\r\nconsidered on the bedrock of the statute and the principles <span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\">laid down by the Apex Court in the case of Deepak (supra)\r\nthe order impugned would lose its legal legs to stand and\r\nwould be rendered unsustainable. Unsustainability of the\r\norder would lead to its obliteration.</span></b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span style=\"font-family: var(--bs-font-sans-serif); font-size: 1rem;\"><b><br></b></span></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>ORDER</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><b>(i) Writ Petition is allowed.</b></p><p class=\"MsoNormal\" style=\"margin: 0cm; font-size: 12pt; font-family: Calibri, sans-serif;\"><span lang=\"EN-US\"><o:p></o:p></span></p>', '475360b0426012d3e9388210ba731e2f.jpeg', '112d909ef2f73a2f61036f879203166c.pdf', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2023-08-21', 1, '', '', '2023-08-20 17:02:40', '2023-08-21 12:18:11'),
(0, 'cc6968edcc68d97b6fbeb229', 'TSUhvAg9KIuGOC5DrA7yLvekJ', 'test judgement ', '<p>This is test</p>', '1728285117_09b8fd7543b64078b74f.jpeg', '1728285117_ae2e1478f07ddc5d6b1d.jpeg', 'QhH4KbT5VxN5Saz2nC3NuAtQG', '2024-10-07', 1, '', '', '2024-10-07 07:11:57', '2024-10-07 07:11:57');
